EN BANC

[G.R. No. L-23959. November 29, 1971.]

PHILIPPINE ASSOCIATION OF FREE LABOR UNIONS (PAFLU), ENRIQUE ENTILA & VICTORIANO TENEZA, petitioners, vs.BINALBANGAN ISABELA SUGAR COMPANY, COURT OF INDUSTRIAL RELATIONS & QUINTIN MUNING, respondents.

Cipriano Cid & Associates for petitioners.

Ceferino Magat and Manuel C. Gonzales for respondent Quintin Muning.

SYLLABUS

1.LEGAL ETHICS; ATTORNEYS; ATTORNEY'S FEES; SHARING THEREOF WITH NON-LAWYERS, UNETHICAL AND IMMORAL. — Applicable to the issue at hand is the principle enunciated in Amalgamated Laborers' Association, et al. vs. Court of Industrial Relations, et al., L-23467, 27 March 1968, that an agreement providing for the division of attorney's fees, whereby a non-lawyer union president is allowed to share in said fees with lawyers, is condemned by Canon 34 of Legal Ethics and is immoral and cannot be justified. An award by a court of attorney's fees is no less immoral in the absence of a contract, as in the present case.

2.ID.; ID.; ID.; NON-LAWYER REPRESENTING A PARTY IN LABOR CASES, NOT ENTITLED THERETO. — The provision in Section 5(b) of Republic Act No. 875 that — "In the proceeding before the Court or Hearing Examiner thereof, the parties shall not be required to be represented by legal counsel . . ." is no justification for a ruling that the person representing the party-litigant in the Court of Industrial Relations, even if he is not a lawyer, is entitled to attorney's fees: for the same section adds that — "it shall be the duty and obligation of the Court or Hearing Officer to examine and cross examine witnesses on behalf of the parties and to assist in the orderly presentation of evidence," thus making it clear that the representation should be exclusively entrusted to duly qualified members of the bar.

3.ID.; ID.; ID.; RECOVERY THEREOF IMPORTS EXISTENCE OF ATTORNEY-CLIENT RELATIONSHIP. — The permission for a non-member of the bar to represent or appear or defend in the said court on behalf of the party-litigant does not by itself entitle the representative to compensation for such representation. For Section 24, Rule 138, of the Rules of Court, providing — "Sec. 24. Compensation of attorneys; agreement as to fees. — An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services, . . ." imports the existence of an attorney-client relationship as a condition to the recovery of attorney's fees. Such a relationship cannot exist unless the client's representative in court be a lawyer. Since respondent Muning is not one, he cannot establish an attorney-client relationship with Enrique Entila and Victorino Tenazas or with PAFLU, and he cannot, therefore, recover attorney's fees. Certainly public policy demands that legal work in representation of parties litigant should be entrusted only to those possessing tested qualifications and who are sworn to observe the rules and the ethics of the profession, as well as being subject to judicial disciplinary control for the protection of courts, clients and the public.

4.ID.; ID.; ID.; REASONS FOR DISALLOWING NON-LAWYERS TO RECOVERY THEREOF, CITED. — The reasons are that the ethics of the legal profession should not be violated; that acting as an attorney without authority constitutes contempt of court, which is punishable by fine or imprisonment or both, and the law will not assist a person reap the fruits or benefit of an unlawful act or an act done in violation of law; and that if fees were to be allowed to non-lawyers, it would leave the public in hopeless confusion as to whom to consult in case of necessity and also leave the bar in a chaotic condition, aside from the fact that non-lawyers are not amenable to disciplinary measures. "And the general rule above-stated (referring to non-recovery of attorney's fees by non-lawyers) cannot be circumvented when the services were purely legal, by seeking to recover as an 'agent' and not as an attorney."

5.LABOR AND SOCIAL LEGISLATION; LABOR UNIONS; LEGITIMATE LABOR ORGANIZATION MAY APPEAL AWARD OF ATTORNEY'S FEES WHICH ARE DEDUCTIBLE FROM BACKPAY OF ITS MEMBERS. — We hold that a union or legitimate labor organization may appeal an award of attorney's fees which are deductible from the backpay of its members because such union or labor organization is permitted to institute an action in the industrial court, on behalf of its members; and the union

was organized "for the promotion of the employees' moral, social and economic well-being"; hence, if an award is disadvantageous to its members, the union may prosecute an appeal as an aggrieved party, under Section 6, Republic Act 875, which provides: "Sec 6. Unfair Labor Practice Cases — Appeals. — Any person aggrieved by any order of the Court may appeal to the Supreme Court of the Philippines . . .," since more often than not the individual unionist is not in a position to bear the financial burden of litigations.

6.REMEDIAL LAW; ACTIONS; APPEAL; ISSUES CAN NOT BE RAISED FOR THE FIRST TIME ON APPEAL. — Petitioners allege that respondent Muning is engaged in the habitual practice of law before the Court of Industrial Relations, and many others like him who are not licensed to practice, registering their appearances as "representatives" and appearing daily before the said court. If true, this is a serious situation demanding corrective action that respondent court should actively pursue and enforce by position action to that purpose. But since this matter was not brought in issue before the court a quo, it may not be taken up in the present case. Petitioners, however, may file proper action against the persons alleged to be illegally engaged in the practice of law.

D E C I S I O N

REYES, J.B.L., J p:

May a non-lawyer recover attorney's fees for legal services rendered? This is the issue presented in this petition for review of an order, dated 12 May 1964, and theen banc resolution, dated 8 December 1964, of the Court of Industrial Relations, in its Case No. 72-ULP-Iloilo, granting respondent Quintin Muning, a non-lawyer, attorney's fees for professional services in the said case.

The above-named petitioners were complainants in Case No. 72-ULP-Iloilo, entitled, "PAFLU, et al, vs. Binalbagan-Isabela Sugar Co., et al." After trial, the Court of Industrial Relations rendered a decision, on 29 March 1961, ordering the reinstatement with backwages of complainants Enrique Entila and Victorino Tenazas. Said decision became final On 18 October 1963, Cipriano Cid & Associates, counsel of record for the winning complainants, filed a notice of attorney's hen

equivalent to 30% of the total backwages. On 22 November 1963, Atty. Atanacio Pacis also filed a similar notice for a reasonable amount. Complainants Entila and Tenazas, on 3 December 1963, filed a manifestation indicating their non-objection to an award of attorney's fees for 25% of their backwages, and, on the same day, Quintin Muning filed a "Petition for Award of Services Rendered" equivalent to 20% of the backwages. Muning's petition was opposed by Cipriano Cid & Associates on the ground that he is not a lawyer.

The records of Case No. 72-ULP-Iloilo show that the charge was filed by Cipriano Cid & Associates through Atty. Atanacio Pacis. All the hearings were held in Bacolod City and appearances made in behalf of the complainants were at first by Attorney Pacis and subsequently by respondent Quintin Muning.

On 12 May 1964, the Court of Industrial Relations awarded 25% of the backwages as compensation for professional services rendered in the case, apportioned as follows:

Attys. Cipriano Cid & Associates10%Quintin Muning10%Atty. Atanacio Pacis5%

The award of 10% to Quintin Muning, who is not a lawyer according to the order, is sought to be voided in the present petition.

Respondent Muning moved in this Court to dismiss the present petition on the ground of late filing but his motion was overruled on 20 January 1965. 1 He asked for reconsideration, but, considering that the motion contained averments that go into the merits of the case, this Court admitted and considered the motion for reconsideration for all purposes as respondent's answer to the petition for review. 2 The case was considered submitted for decision without respondent's brief. 3

Applicable to the issue at hand is the principle enunciated in Amalgamated Laborers' Association, et al. vs. Court of Industrial Relations, et al., L-23467, 27 March 1968, 4 that an agreement providing for the division of attorney's fees, whereby a non-lawyer union president is allowed to share in said fees with lawyers, is condemned by Canon 34 of Legal Ethics and is immoral and cannot be justified. An award by a court of attorney's fees is no less immoral in the absence of a contract, as in the present case.

The provision in Section 5(b) of Republic Act No. 875 that —

"In the proceeding before the Court or Hearing Examiner thereof, the parties shall not be required to be represented by legal counsel . . ."

is no justification for a ruling that the person representing the party-litigant in the Court of Industrial Relations, even if he is not a lawyer, is entitled to attorney's fees: for the same section adds that —

"it shall be the duty and obligation of the Court or Hearing Officer to examine and cross examine witnesses on behalf of the parties and to assist in the orderly presentation of evidence."

thus making it clear that the representation should be exclusively entrusted to duly qualified members of the bar.

The permission for a non-member of the bar to represent or appear or defend in the said court on behalf of a party-litigant does not by itself entitle the representative to compensation for such representation. For Section 24, Rule 138, of the Rules of Court, providing —

"Sec. 24.Compensation of attorney's agreement as to fees. — An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services, . . . "

 

imports the existence of an attorney-client relationship as a condition h the recovery of attorney's fees. Such a relationship cannot exist unless the client's representative in court be a lawyer. Since respondent Muning is not one, he cannot establish an attorney-client relationship with Enrique Entila and Victorino Tenezas or with PAFLU, and he cannot, therefore, recover attorney's fees. Certainly public policy demands that legal work in representation of parties litigant should be entrusted only to those possessing tested qualifications and who are sworn to observe the rules and the ethics of the profession, as well as being subject to judicial disciplinary control for the protection of courts, clients and the public.

On the present issue, the rule in American jurisdictions is persuasive. There, it is stated:

"But in practically all jurisdictions statutes have now been enacted prohibiting persons not licensed or admitted to the bar from practising law, and under statutes of this kind, the great weight of authority is to the effect that compensation for strictly legal services cannot be recovered by one who has not been admitted to practice before the court or in the jurisdiction where the service were rendered." 5

"No one is entitled to recover compensation for services as an attorney at law unless he has been duly admitted to practice . . . and is an attorney in good standing at the time." 6

The reasons are that the ethics of the legal profession should not be violated; 7 that acting as an attorney without authority constitutes contempt of court, which is punishable by fine or imprisonment or both, 8 and the law will not assist a person to reap the fruits or benefit of an unlawful act or an act done in violation of law; 9and that if fees were to be allowed to non-lawyers, it would leave the public in hopeless confusion as to whom to consult in case of necessity and also leave the bar in a chaotic condition, aside from the fact that non-lawyers are not amenable to disciplinary measures. 10

"And the general rule above-stated (referring to non-recovery of attorney's fees by non-lawyers) cannot be circumvented when the services were purely legal, by seeking to recover as an 'agent' and not as an attorney." 11

The weight of the reasons heretofore stated why a non-lawyer may not be awarded attorney's fees should suffice to refute the possible argument that appearances by non-lawyers before the Court of Industrial Relations should be excepted on the ground that said court is a court of special jurisdiction; such special jurisdiction does not outweigh the aforesaid reasons and cannot justify an exception.

The other issue in this case is whether or not a union may appeal an award of attorney's fees which are deductible from the backpay of some of its members. This issue arose because it was the union PAFLU, alone, that moved for an extension of time to file the present petition for review; union members Entila and Tenazas did not ask for extension but they were included as petitioners in the present petition that was subsequently filed, it being contented that, as to them (Entila and Tenazas), their inclusion in the petition as co-petitioners was belated.

We hold that a union or legitimate labor organization may appeal an award of attorney's fees which are deductible from the backpay of its members because such union or labor organization is permitted to institute an action in the industrial court, 12 on behalf of its members; and the union was organized "for the promotion of the employees' moral, social and economic well-being"; 13 hence, if an award is disadvantageous to its members, the union may prosecute an appeal as an aggrieved party, under Section 6, Republic Act 875, which provides:

"Sec. 6.Unfair Labor Practice Cases — Appeals. — Any person aggrieved by any order of the Court may appeal to the Supreme Court of the Philippines . . .",

since more often than not the individual unionist is not in a position to bear the financial burden of litigations.

Petitioners allege that respondent Muning is engaged in the habitual practice of law before the Court of Industrial Relations, and many others like him who are not licensed to practice, registering their appearances as "representatives" and appearing daily before the said court. If true, this is a serious situation demanding corrective action that respondent court should actively pursue and enforce by positive action to that purpose. But since this matter was not brought in issue before the court a quo, it may not be taken up in the present case. Petitioners, however, may file proper action against the persons alleged to be illegally engaged in the practice of law.

WHEREFORE, the orders under review are hereby set aside insofar as they awarded 10% of the backwages as attorney's fees for respondent Quintin Muning. Said orders are affirmed in all other respects. Costs against respondent Muning.

Concepaion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.

THIRD DIVISION

[G.R. No. L-41862. February 7, 1992.]

B. R. SEBASTIAN ENTERPRISES, INC., petitioner, vs. HON. COURT OF APPEALS,

EULOGIO B. REYES, NICANOR G. SALAYSAY, in his capacity as Provincial Sheriff of Rizal; and ANTONIO MARINAS, in his capacity as Deputy Sheriff, respondents.

Benito P. Fabie for petitioner.

Ildefonso de Guzman-Mendiola for private respondents.

SYLLABUS

1.REMEDIAL LAW; COURT OF APPEALS; AUTHORITY TO REINSTATE DISMISSED APPEALS; JUSTIFIED. — Petitioner, in its Memorandum, extensively expounds on respondent Court's authority to reinstate dismissed appeals and cites as basis thereof the decision of this Court in Heirs of Clemente Celestino vs. Court of Appeals, et al. (G.R. No. L-38690, 12 September 1975, 67 SCRA 22). Indeed, in said case, this Court affirmed the resolution of the Court of Appeals — reinstating an appeal after being dismissed for failure by the appellants therein to file their brief, and after entry of judgment and remand of the records to the lower court — and cancelled the entry of judgment, requiring the lower court to return the records to the Court of Appeals and admit appellant's brief. Said case, however, had a "peculiar or singular factual situation" which prompted the Court of Appeals to grant the relief and which this Court found sufficient to justify such action.

2.ID.; ID.; VESTED WITH RIGHT TO RECALL REMAND OF RECORDS. — If the appellate court has not yet lost its jurisdiction, it may exercise its discretion in reinstating an appeal, having in mind the circumstances obtaining in each case and the demands of substantial justice (Alquiza vs. Alquiza, L-23342, February 10, 1968, 22 SCRA 494, 66 O.G. 276; C. Vda. de Ordoveza vs. Raymundo, 62 Phil. 275; Chavez vs. Ganzon, 108 Phil. 6). But even if it has already lost jurisdiction over the appeal by reason of the remand of the record to the lower court, it, nevertheless, has the inherent right to recall the remittitur or the remand of the record to the lower court if it had rendered a decision or issued a resolution which was induced by fraud practised upon it. Such a right is not affected by the statutory provision that after the record has been remanded, the appellate court has no further jurisdiction over the appeal (5 Am Jur 2nd 433 citing Lovett vs. State, 29 Fla. 384,

11 So. 176; 84 ALR 595; State vs. Ramirez, 34 Idaho 623, 203 Pac. 279)."

3.ID.; ID.; DISCRETION TO REINSTATE APPEAL MUST BE EXERCISED UPON A SHOWING OF GOOD AND SUFFICIENT CAUSE. — As held in Chavez, et al. vs. Ganzon, et al., 108 Phil. 9, and reiterated in Negros Stevedoring Co., Inc. vs. Court of Appeals, 162 SCRA 371, We said: "Granting that the power or discretion to reinstate an appeal that had been dismissed is included in or implied from the power or discretion to dismiss an appeal, still such power or discretion must be exercised upon a showing of good and sufficient cause, in like manner as the power or discretion vested in the appellate court to allow extensions of time for the filing of briefs. There must be such a showing which would call for, prompt and justify its exercise (sic). Otherwise, it cannot and must not be upheld."

4.LEGAL AND JUDICIAL ETHICS; LAW FIRMS; ADMONISHED TO ADOPT A SYSTEM OF DISTRIBUTING PLEADINGS AND NOTICES. — In the Negros Stevedoringcase, supra., this Court held: "The negligence committed in the case at bar cannot be considered excusable, nor (sic) is it unavoidable. Time and again the Court has admonished law firms to adopt a system of distributing pleadings and notices, whereby lawyers working therein receive promptly notices and pleadings intended for them, so that they will always be informed of the status of their cases.

5.ID.; ID.; NEGLIGENCE OF CLERKS BINDING ON LAWYERS. — The Court has also often repeated that the negligence of clerks which adversely affect the cases handled by lawyers, is binding upon the latter."

6.ID.; ATTORNEY-CLIENT RELATIONSHIP; NEGLIGENCE OF COUNSEL BINDS THE CLIENT. — Upon receipt of the notice to file Brief, the law firm should have re-assigned the case to another associate or, it could have withdrawn as counsel in the manner provided by the Rules of Court so that the petitioner could contract the services of a new lawyer. Compounding such negligence is the failure of the BAIZAS LAW OFFICE, which filed on 28 September 1974 the motion to reconsider the Resolution of 9 September 1974, to take any further appropriate action after the respondent Court denied said motion on 9 October 1974. The appearance of said counsel is presumed to be duly authorized by petitioner. The rule is settled that negligence of counsel binds the client.

7.REMEDIAL LAW; PROCEDURAL DUE PROCESS; RIGHT THERETO DEFEATED BY FAILURE TO ACT WITH PRUDENCE AND DILIGENCE. — Petitioner itself was guilty of negligence when it failed to make inquiries from counsel regarding its case. As pointed out by respondents, the president of petitioner corporation claims to be the intimate friend of Atty. Crispin Baizas; hence, the death of the latter must have been known to the former. This fact should have made petitioner more vigilant with respect to the case at bar. Petitioner failed to act with prudence and diligence; thus, its plea that they were not accorded the right to procedural due process cannot elicit either approval or sympathy.

D E C I S I O N

DAVIDE, JR., J p:

This is a petition for prohibition and mandamus, with prayer for preliminary injunction, to review the Resolution dated 10 November 1975 of respondent Court of Appeals in C.A.-G.R. No. 53546-R denying petitioner's motion to reinstate its appeal, earlier dismissed for failure to file the Appellant's Brief.

The material operative facts of this case, as gathered from the pleadings of the parties, are not disputed.

Eulogio B. Reyes, now deceased, filed an action for damages with the then Court of First Instance (now regional Trial Court) of Rizal, Pasay City Branch, against the Director of Public Works, the Republic of the Philippines and petitioner herein, B.R. Sebastian Enterprises, Inc. The case was docketed as Civil Case No. 757-R. 1

On 7 May 1973, the trial court rendered a decision finding petitioner liable for damages but absolving the other defendants. 2

Petitioner, thru its counsel, the law firm of Baizas, Alberto and Associates, timely appealed the adverse decision to the respondent Court of Appeals, which docketed the case as C.A.-G.R. No. 53546-R. 3

During the pendency of the appeal, the plaintiff-appellee therein, Eulogio B. Reyes, died. Upon prior leave of the respondent Court, he was substituted by his heirs — Enrique N. Reyes, Felicisima R.

Natividad, Donna Marie N. Reyes and Renne Marie N. Reyes — who are now the private respondents in this present petition.

On 19 February 1974, petitioner, thru its then counsel of record, received notice to file Appellant's Brief within 45 days from receipt thereof. It had, therefore, until 5 April 1974 within which to comply.

Counsel for petitioner failed to file the Brief; thus, on 9 July 1974, respondent Court issued a Resolution requiring said counsel to show cause why the appeal should not be dismissed for failure to file the Appellant's Brief within the reglementary period. 4 A copy of this Resolution was received by counsel for petitioner on 17 July 1974. 5

As the latter failed to comply with the above Resolution, respondent court, on 9 September 1974, issued another Resolution this time dismissing petitioner's appeal: Cdpr

"It appearing that counsel for defendant-appellant failed to show cause why the appeal should not be dismissed (for failure to file the appellant's brief within the reglementary period which expired on April 5, 1974) within the period of 10 days fixed in the resolution of July 9, 1974, copy of which was received by said counsel on July 17, 1974; . . ." 6

On 28 September 1974, petitioner, this time thru the BAIZAS LAW OFFICE, filed a motion for reconsideration 7 of the resolution dismissing its appeal alleging that as a result of the death of Atty. Crispin Baizas, senior partner in the law firm of BAIZAS, ALBERTO & ASSOCIATES, the affairs of the said firm are still being settled between Atty. Jose Baizas (son of Crispin Baizas) and Atty. Ruby Alberto, the latter having established her own law office; furthermore, Atty. Rodolfo Espiritu, the lawyer who handled this case in the trial court and who is believed to have also attended to the preparation of the Appellant's brief but failed to submit it through oversight and inadvertence, had also left the firm.

In its Resolution of 9 October 1974, respondent Court denied the motion for reconsideration, stating that:

"Upon consideration of the motion of counsel for defendant-appellant, praying, on the grounds therein stated, that the resolution of September 9, 1974, dismissing the appeal, be set aside, and that appellant be granted a reasonable period of time within which to file its brief: considering that six (6) months had elapsed since the expiration of the original period

and more than two and one-half (2-1/2) months since counsel received copy of the resolution requiring him to show cause why the appeal should not be dismissed for failure to file brief; Motion Denied." 8

No action having been taken by petitioner from the above Resolution within the period to file a petition for review, the same became final and executory, and the records of the case were remanded to the court of origin for execution.

The trial court issued a writ of execution on 21 October 1975. 9 Pursuant thereto, respondents Provincial Sheriff and Deputy Sheriff attached petitioner's Hough Pay Loader with Hercules Diesel Engine and issued on 5 November 1975 a Notice of Sheriff's Sale, scheduling for Friday, 14 November 1975 at 10:00 o'clock in the morning, the auction sale thereof. 10

On 6 November 1975, petitioner filed with respondent Court a Motion to Reinstate Appeal with Prayer for Issuance of a Writ of Preliminary Injunction 11 dated 5 November 1975, and containing the following allegations:

 

"1.That late as it may be, this Honorable Court has the inherent power to modify and set aside its processes, in the interest of justice, especially so in this case when the case was dismissed on account of the untimely death of Atty. Crispin D. Baizas, counsel of BRSEI (B.R. Sebastian Enterprises, Inc.).

2.That to dismiss the case for failure to file the appellant's brief owing to the untimely death of the late Atty. Crispin D. Baizas would be tantamount to denying BRSEI its (sic) day in court, and is, therefore, a clear and unmistakable denial of due process on the part of BRSEI.

3.That to reinstate BRSEI's appeal would not impair the rights of the parties, since all that BRSEI is asking for, is a day in court to be heard on appeal in order to have the unfair, unjust and unlawful decision, set aside and reversed." cdll

The respondent Court denied the said motion in its Resolution of 10 November 1975:12

". . . it appearing that appellant was represented by the law firm of Baizas, Alberto & Associates, and while Atty. Baizas died on January 16, 1974, his law firm was not dissolved since it received the notice to file brief on February 19, 1974, and the copy of the Resolution of July 9, 1974, requiring appellant to show cause why the appeal should not be dismissed was received by the law firm on July 17, 1974 and no cause was shown; . . ."

Hence, on 13 November 1975, petitioner filed the original petition 13 in this case against the Court of Appeals, Eulogio B. Reyes, Nicanor G. Salaysay, as Provincial Sheriff of Rizal, and Antonio Marinas, as Deputy Sheriff. The petition likewise prayed for the issuance of a Temporary Restraining Order.

In the Resolution of 13 November 1975, this Court required respondents to comment on the petition within ten (10) days from receipt thereof, and issued a Temporary Restraining Order. 14

On 12 January 1976, respondents filed a Partial Comment on the Petition with a Motion to Suspend the Proceedings 15 on the ground that respondent Eulogio B. Reyes is already dead and his lawful heirs had already been ordered substituted for him during the pendency of the appeal before the respondent Court of Appeals.

In the Resolution of 21 January 1976, this Court ordered petitioner to amend its petition within ten (10) days from receipt of notice, and suspended the filing of respondents' Comment until after the amendment is presented and admitted. 16

In compliance therewith, petitioner filed on 9 February 1976 a Motion for Leave to Admit Amended Petition to which it attached the said Amended Petition. 17 The amendment consists in the substitution of Eulogio B. Reyes with his heirs.

This Court admitted the Amended Petition 18 and required the respondents to file their Comment within ten (10) days from notice thereof, which they complied with on 5 April 1976. 19 Petitioner filed its Reply to the Comment on 29 April 1976. 20

In the Resolution of 12 May 1976, this Court denied the petition for lack of merit: 21

"L-41862 (B.R. Sebastian Enterprises, Inc. vs. Court of Appeals, et. al.). — Considering the allegations, issues and arguments adduced in the amended petition for review on certiorari of the decision of the Court of Appeals, respondents' comment thereon, as well as petitioner's reply to said comment, the Court Resolved to DENY the petition for lack of merit."

However, on 31 May 1976, petitioner filed a motion for its reconsideration 22 claiming that since it was deprived of the right to appeal without fault on its part, the petition should be given due course.

Respondents submitted on 22 July 1976 their Comment 23 to said Motion for Reconsideration.

On 10 September 1976, this Court resolved to reconsider 24 its Resolution of 12 May 1976 and required both parties to submit simultaneously their respective Memoranda within thirty (30) days from notice thereof.

Petitioner submitted its Memorandum on 5 November 1976 25 while respondents submitted theirs on 22 November 1976. 26 On 29 November 1976, this Court deemed the present case submitted for decision. 27

The sole issue to be addressed is whether or not the respondent Court of Appeals gravely abused its discretion in denying

petitioner's motion to reinstate its appeal, previously dismissed for failure to file the Appellant's Brief.

Petitioner, in its Memorandum, extensively expounds on respondent Court's authority to reinstate dismissed appeals and cites as basis thereof the decision of this Court in Heirs of Clemente Celestino vs. Court of Appeals, et al., 28 Indeed, in said case, this Court affirmed the resolution of the Court of Appeals — reinstating an appeal after being dismissed for failure by the appellants therein to file their brief, and after entry of judgment and remand of the records to the lower court — and cancelled the entry of judgment, requiring the lower court to return the records to the Court of Appeals and admit appellant's brief. Said case, however, had a peculiar or singular factual situation" which prompted the Court of Appeals to grant the relief and which this Court found sufficient to justify such action. As this Court, through Associate Justice Ramon Aquino, said: prLL

"We are of the opinion that under the peculiar or singular factual situation in this case and to forestall a miscarriage of justice the resolution of the Court of Appeals reinstating the appeal should be upheld.

That Court dismissed the appeal of the Pagtakhans in the mistaken belief that they had abandoned it because they allegedly failed to give to their counsel the money needed for paying the cost of printing their brief.

But presumably the Appellate Court realized later that fraud might have been practised on appellants Pagtakhans since their oppositions were not included in the record on appeal. In (sic) sensed that there was some irregularity in the actuations of their lawyer and that Court (sic) itself had been misled into dismissing the appeal.

Counsel for the Pagtakhans could have furnished them with copies of his motions for extension of time to file brief so that they would have known that the Court of Appeals had been apprised of their alleged failure to defray the cost of printing their brief and they could have articulated their reaction directly to the Court. Counsel could have moved in the Appellate Court that he be allowed to withdraw from the case or that the Pagtakhans be required to manifest whether they were still desirous of prosecuting their appeal or wanted a mimeographed brief to be filed for them (See People vs. Cawili, L-30543, August 31, 1970, 34 SCRA 728). Since counsel did none of those things, his representation that the appellants had evinced lack of interest in pursuing their appeal is difficult to believe.

If the appellate court has not yet lost its jurisdiction, it may exercise its discretion in reinstating an appeal, having in mind the circumstances obtaining in each case and the demands of substantial justice (Alquiza vs. Alquiza, L-23342, February 10, 1968, 22 SCRA 494, 66 O.G. 276; C. Vda. de Ordoveza vs. Raymundo, 62 Phil. 275; Chavez vs. Ganzon, 108 Phil. 6).

But even if it has already lost jurisdiction over the appeal by reason of the remand of the record to the lower court, it, nevertheless, has the inherent right to recall the remittitur or the remand of the record to the lower court if it had rendered a decision or issued a resolution which was induced by fraud practised upon it. Such a right is not affected by the statutory provision that after the record has been remanded, the

appellate court has no further jurisdiction over the appeal (5 Am Jur 2nd 433 citing Lovett vs. State, 29 Fla. 384, 11 So. 176; 84 ALR 595; State vs. Ramirez, 34 Idaho 623, 203 Pac. 279)."

In the instant case, no fraud is involved; what obtains is simple negligence on the part of petitioner's counsel, which is neither excusable nor unavoidable. Petitioner thus failed to demonstrate sufficient cause to warrant a favorable action on its plea.

As held in Chavez, et al., vs. Ganzon, et al., 29 and reiterated in Negros Stevedoring Co., Inc. vs. Court of Appeals, 30 We said:

"Granting that the power or discretion to reinstate an appeal that had been dismissed is included in or implied from the power or discretion to dismiss an appeal, still such power or discretion must be exercised upon a showing of good and sufficient cause, in like manner as the power or discretion vested in the appellate court to allow extensions of time for the filing of briefs. There must be such a showing which would call for, prompt and justify its exercise (sic). Otherwise, it cannot and must not be upheld."

To justify its failure to file the Appellant's Brief, petitioner relies mainly on the death of Atty. Crispin Baizas and the supposed confusion it brought to the firm of BAIZAS, ALBERTO & ASSOCIATES. It says. 31

"Petitioner, thru its president Bernardo R. Sebastian, engaged the services of Atty. Crispin D. Baizas to handle its defense in Civil Case No. 757-R; however, it appears that Atty. Baizas entered petitioner's case as a case to be handled by his law firm operating under the name and style 'Crispin D. Baizas & Associates.' Hence, the Answer to the complaint, Answer to Cross-Claim, and Answer to Fourth-party Complaint filed for petitioner in said case, evince that the law firm 'Crispin D. Baizas & Associates' represents petitioner in the action.

After rendition of the assailed Decision of the trial court, petitioner's counsel appears to have changed its firm name to 'Baizas, Alberto & Associates.' The appeal was thus pursued for petitioner by the law firm Baizas, Alberto & Associates.'  LexLib

On January 16, 1974, Atty. Crispin D. Baizas died as a result of a brief heart attack. In consequence (sic) of his death, the law firm 'Baizas, Alberto & Associates' was in a terribly confused state of affairs. In effect, said law firm was dissolved. Atty. Ruby

Alberto formed her own law office and other associates left the dissolved law firms (sic) joining other offices or putting up their own. Atty. Jose Baizas, son of deceased Crispin D. Baizas, took over the management of what may have been left of his father's office, it appearing that some, if not many, cases of the defunct office were taken over by the associates who left the firm upon its dissolution.

 

But, none of the former partners and associates/assistants of the dissolved law firm filed the required appellant's brief for herein petitioner in its appealed case before the respondent Court of Appeals. No notice was served upon petitioner by any of the surviving associates of the defunct law firm that its appellant's brief was due for filing or that the law office had been dissolved and that none of the lawyers therein formerly connected desired to handle the appealed case of petitioner. . . .

The circumstances that the law firm 'Baizas, Alberto & Associates' was dissolved and that none of the associates took over petitioner's case, and no notice of such state of affairs was given to petitioner who could have engaged the services of another lawyer to prosecute its appeal before respondent Court, constitutes (sic) an UNAVOIDABLE CASUALTY that entitles petitioner to the relief prayed for. On the other hand, the non-dissolution of said law firm 'Baizas, Alberto & Associates' will not defeat petitioner's claim for relief, since, in such event, the said firm had ABANDONED petitioner's cause, which act constitutes fraud and/or reckless inattention the result of which is deprivation of petitioner's day in court. In the abovementioned Yuseco case, this Honorable Court had emphatically and forceably declared that it will always be disposed to grant relief to parties aggrieved by perfidy, fraud, reckless inattention and downright incompetence of lawyers, which has the consequence of depriving their day (sic) in court."

We find no merit in petitioner's contentions. Petitioner's counsel was the law firm of BAIZAS, ALBERTO & ASSOCIATES and not merely Atty. Crispin Baizas. Hence, the death of the latter did not extinguish the lawyer-client relationship between said firm and petitioner.

In Gutierrez & Sons, Inc. vs. Court of Appeals, 32 the appeal filed by the law firm of BAIZAS, ALBERTO & ASSOCIATES on behalf of respondent therein was dismissed for failure to comply with the requisites enumerated in the Rules of Court: the excuse presented by said counsel was also the death of Atty. Crispin Baizas. This Court held therein that:

"The death of Attorney Baizas was not a valid excuse on the part of his associates for not attending to Alvendia's appeal, supposing arguendo that his office was solely entrusted with the task of representing Alvendia in the Court of Appeals. Attorney Espiritu (not Attorney Baizas) was the one actually collaborating with Viola in handling Alvendia's case. He did not file a formal appearance in the Court of Appeals."

Undoubtedly, there was inexcusable negligence on the part of petitioner's counsel in failing to file the Appellant's Brief. As revealed by the records, petitioner's counsel, the BAIZAS, ALBERTO & ASSOCIATES law firm, received the notice to file Brief on 19 February 1974. It failed to do so within the 45 days granted to it. Said law firm also received a copy of the respondent Court's Resolution of 9 July 1974 requiring it to show cause why the appeal should not be dismissed for failure to file the Brief within the reglementary period. Petitioner chose not to comply with it, thus compelling the respondent Court to issue on 9 September 1974 a Resolution dismissing the appeal, a copy of which the former also received. Then, on 28 September 1974, the BAIZAS LAW OFFICE moved for a reconsideration of the said Resolution which respondent Court denied in its Resolution of 9 October 1974. Nothing more was heard from petitioner until after a year when, on 6 November 1975, it filed the instant petition in reaction to the issuance of a writ of execution by the trial court following receipt of the records from the respondent Court.

The "confusion" in the office of the law firm following the death of Atty. Crispin Baizas is not a valid justification for its failure to file the Brief. With Baizas' death, the responsibility of Atty. Alberto and his associates to the petitioner as counsel remained until withdrawal by the former of their appearance in the manner provided by the Rules of Court. This is so because it was the law firm which handled the case for petitioner before both the trial and appellate courts. That Atty. Espiritu, an associate who was designated to handle the case, later left the office after the death of Atty. Baizas is of no moment since others in the firm could have replaced him. Upon receipt of the notice to file

Brief, the law firm should have re-assigned the case to another associate or, it could have withdrawn as counsel in the manner provided by the Rules of Court so that the petitioner could contract the services of a new lawyer.

In the Negros Stevedoring case, supra, this Court held:

"The negligence committed in the case at bar cannot be considered excusable, not (sic) is it unavoidable. Time and again the Court has admonished law firms to adopt a system of distributing pleadings and notices, whereby lawyers working therein receive promptly notices and pleadings intended for them, so that they will always be informed of the status of their cases. The Court has also often repeated that the negligence of clerks which adversely affect the cases handled by lawyers, is binding upon the latter."

Compounding such negligence is the failure of the BAIZAS LAW OFFICE, which filed on 28 September 1974 the motion to reconsider the Resolution of 9 September 1974, to take any further appropriate action after the respondent Court denied said motion on 9 October 1974. The appearance of said counsel is presumed to be duly authorized by petitioner. The latter has neither assailed nor questioned such appearance. prLL

The rule is settled that negligence of counsel binds the client. 33

Moreover, petitioner itself was guilty of negligence when it failed to make inquiries from counsel regarding its case. As pointed out by respondents, the president of petitioner corporation claims to be the intimate friend of Atty. Crispin Baizas; hence, the death of the latter must have been known to the former. 34 This fact should have made petitioner more vigilant with respect to the case at bar. Petitioner failed to act with prudence and diligence; thus, its plea that they were not accorded the right to procedural due process cannot elicit either approval or sympathy. 35

Based on the foregoing, it is clear that there was failure to show a good and sufficient cause which would justify the reinstatement of petitioner's appeal. Respondent Court of Appeals did not then commit any grave abuse of discretion when it denied petitioner's motion to reinstate its appeal.

WHEREFORE, the Petition is hereby DISMISSED and the temporary restraining order issued in this case is lifted.

Costs against petitioner.

IT IS SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Romero, JJ., concur.

SECOND DIVISION

[G.R. No. L-23815. June 28, 1974.]

ADELINO H. LEDESMA, petitioner, vs. HON. RAFAEL C. CLIMACO, Presiding Judge of the Court of First Instance of Negros Occidental, Branch I, Silay City, respondent.

Adelino E. Ledesma in his own behalf.

Hon. Rafael C. Climaco in his own behalf.

D E C I S I O N

FERNANDO, J p:

What is assailed in this certiorari proceeding is an order of respondent Judge denying a motion filed by petitioner to be allowed to withdraw as counsel de oficio. 1One of the grounds for such a motion was his allegation that with his appointment as Election Registrar by the Commission on Elections, he was not in a position to devote full time to the defense of the two accused. The denial by respondent Judge of such a plea, notwithstanding the conformity of the defendants, was due "its principal effect [being] to delay this case." 2 It was likewise noted that the prosecution had already rested and that petitioner was previously counsel de parte, his designation in the former category being precisely to protect him in his new position without prejudicing the accused. It cannot be plausibly asserted that such failure to allow withdrawal of de oficio counsel could ordinarily be characterized as a

grave abuse of discretion correctible by certiorari. There is, however, the overriding concern for the right to counsel of the accused that must be taken seriously into consideration. In appropriate cases, it should tilt the balance. This is not one of them. What is easily discernible was the obvious reluctance of petitioner to comply with the responsibilities incumbent on the counsel de oficio. Then, too, even on the assumption that he continues in his position, his volume of work is likely to be very much less at present. There is not now the slightest pretext for him to shirk an obligation a member of the bar, who expects to remain in good standing, should fulfill. The petition is clearly without merit.

According to the undisputed facts, petitioner, on October 13, 1964, was appointed Election Registrar for the Municipality of Cadiz, Province of Negros Occidental. Then and there, he commenced to discharge its duties. As he was counsel de parte for one of the accused in a case pending in the sala of respondent Judge, he filed a motion to withdraw as such. Not only did respondent Judge deny such motion, but he also appointed him counsel de oficio for the two defendants. Subsequently, on November 3, 1964, petitioner filed an urgent motion to be allowed to withdraw as counsel de oficio, premised on the policy of the Commission on Elections to require full time service as well as on the volume or pressure of work of petitioner, which could prevent him from handling adequately the defense. Respondent Judge, in the challenged order of November 6, 1964, denied said motion. A motion for reconsideration having proved futile, he instituted this certiorari proceeding. 3

As noted at the outset, the petition must fail.

1.The assailed order of November 6, 1964 denying the urgent motion of petitioner to withdraw as counsel de oficio speaks for itself. It began with a reminder that a crime was allegedly committed on February 17, 1962, with the proceedings having started in the municipal court of Cadiz on July 11, 1962. Then respondent Judge spoke of his order of October 16, 1964 which reads thus: "In view of the objection of the prosecution to the motion for postponement of October 15, 1964 (alleging that counsel for the accused cannot continue appearing in this case without the express authority of the Commission on Elections); and since according to the prosecution there are two witnesses who are ready to take the stand, after which the government would rest, the motion for postponement is denied. When counsel for the accused assumed office as Election Registrar on October 13, 1964,

he knew since October 2, 1964 that the trial would be resumed today. Nevertheless, in order not to prejudice the civil service status of counsel for the accused, he is hereby designated counsel de oficio for the accused. The defense obtained postponements on May 17, 1963, June 13, 1963, June 14, 1963, October 28, 1963, November 27, 1963, February 11, 1964, March 9, 1964, June 8, 1964, July 26, 1964, and September 7, 1964." 4 Reference was then made to another order of February 11, 1964: "Upon petition of Atty. Adelino H. Ledesma, alleging indisposition, the continuation of the trial of this case is hereby transferred to March 3, 1964 at 8:30 in the morning. The defense is reminded that at its instance, this case has been postponed at least eight (8) times, and that the government witnesses have to come all the way from Manapala." 5 After which, it was noted in such order that there was no incompatibility between the duty of petitioner to the accused and to the court and the performance of his task as an election registrar of the Commission on Elections and that the ends of justice "would be served by allowing and requiring Mr. Ledesma to continue as counsel de oficio, since the prosecution has already rested its case." 6

2.What is readily apparent therefore, is that petitioner was less than duly mindful of his obligation as counsel de oficio. He ought to have known that membership in the bar is a privilege burdened with conditions. It could be that for some lawyers, especially the neophytes in the profession, being appointed counsel de oficio is an irksome chore. For those holding such belief, it may come as a surprise that counsel of repute and of eminence welcome such an opportunity. It makes even more manifest that law is indeed a profession dedicated to the ideal of service and not a mere trade. It is understandable then why a high degree of fidelity to duty is required of one so designated. A recent statement of the doctrine is found in People v. Daban: 7 "There is need anew in this disciplinary proceeding to lay stress on the fundamental postulate that membership in the bar carries with it a responsibility to live up to its exacting standard. The law is a profession, not a trade or a craft. Those enrolled in its ranks are called upon to aid in the performance of one of the basic purposes of the State, the administration of justice. To avoid any frustration thereof, especially in the case of an indigent defendant, a lawyer may be required to act as counsel de oficio. The fact that his services are rendered without remuneration should not occasion a diminution in his zeal. Rather the contrary. This is not, of course, to ignore that other pressing matters do compete for his attention. After all, he has his

practice to attend to. That circumstance possesses, high degree of relevance since a lawyer has to live; certainly he cannot afford either to neglect his paying cases. Nonetheless, what is incumbent upon him as counsel de oficio must be fulfilled." 8

So it has been from the 1905 decision of In re Robles Lahesa, 9 where respondent was de oficio counsel, the opinion penned by Justice Carson making clear: "This Court should exact from its officers and subordinates the most scrupulous performance of their official duties, especially when negligence in the performance of those duties necessarily results in delays in the prosecution of criminal cases . . ." 10 Justice Sanchez in People v. Estebia 11 reiterated such a view in these words: "It is true that he is a court-appointed counsel. But we do say that as such counsel de oficio, he has as high a duty to the accused as one employed and paid by defendant himself. Because, as in the case of the latter, he must exercise his best efforts and professional ability in behalf of the person assigned to his care. He is to render effective assistance. The accused-defendant expects of him due diligence, not mere perfunctory representation. . . . For, indeed a lawyer who is a vanguard in the bastion of justice is expected to have a bigger dose of social conscience and a little less of self-interest." 12

The weakness of the petition is thus quite evident.

3.If respondent Judge were required to answer the petition, it was only due to the apprehension that considering the frame of mind of a counsel loath and reluctant to fulfill his obligation, the welfare of the accused could be prejudiced. His right to counsel could in effect be rendered nugatory. Its importance was rightfully stressed by Chief Justice Moran in People v. Holgado in these words: "In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of 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. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should

assign one de oficio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his own." 13 So it was under the previous Organic Acts. 14 The present Constitution is even more emphatic. For, in addition to reiterating that the accused "shall enjoy the right to be heard by himself and counsel," 15 there is this new provision: "Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence." 16

 

Thus is made manifest the indispensable role of a member of the Bar in the defense of an accused. Such a consideration could have sufficed for petitioner not being allowed to withdraw as counsel de oficio. For he did betray by his moves his lack of enthusiasm for the task entrusted to him, to put matters mildly. He did point though to his responsibility as an election registrar. Assuming his good faith, no such excuse could be availed now. There is not likely at present, and in the immediate future, an exorbitant demand on his time. It may likewise be assumed, considering what has been set forth above, that petitioner would exert himself sufficiently to perform his task as defense counsel with competence, if not with zeal, if only to erase doubts as to his fitness to remain a member of the profession in good standing. The admonition is ever timely for those enrolled in the ranks of legal practitioners that there are times, and this is one of them, when duty to court and to client takes precedence over the promptings of self-interest.

WHEREFORE, the petition for certiorari is dismissed. Costs against petitioner.

Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur.

Barredo, J., did not take part.

EN BANC

[A.C. No. 716 . January 30, 1969.]

EDUARDO J. BERENGUER, complainant, vs. PEDRO B. CARRANZA, respondent.

SYLLABUS

1.LEGAL ETHICS; ATTORNEYS-AT-LAW; VIOLATION OF OATH OF OFFICE; INTRODUCING FALSE AFFIDAVIT OF ADJUDICATION AND TRANSFER. — A complaint against respondent was filed for deception practiced on the Court of First Instance of Sorsogon, in that aware of the falsity of an Affidavit of Adjudication and Transfer wherein he had no hand in the making of said affidavit, he introduced the same in evidence. Held. For failure to exercise greater care in the discharge of his duties as a lawyer consistent with his oath of office, confusion and prolongation of a cadastral suit has resulted. Under the circumstances, it would be to err on the side of leniency if he would be held blameless. He had incurred liability. His fidelity to his oath as attorney was less than entire.

2.ID.; ID.; DUTIES; FIDELITY TO CLIENTS AND CANDOR TOWARDS THE COURT. — Every member of the bar must be on his guard, lest through oversight or inadvertence, the way he conducts his case or the evidence he presents could conceivably result in a failure of justice. Time and time again, lawyers have been admonished to remember that they are officers of the court, and that while they owe their clients the duty of complete fidelity and the utmost diligence, they are likewise held to strict accountability insofar as candor and honesty towards the court is concerned.

3.ID.; ID.; CARELESSNESS DOES NOT FREE A LAWYER FROM LIABILITY AS CHARGED. — Even if there be no intent to deceive, a lawyer whose conduct betrays inattention or carelessness should not be allowed to free himself from a charge thereafter instituted against him by the mere plea that his conduct was not willful and that he has not consented to the doing of the falsity.

4.ID.; ID.; LAWYER'S OATH IS IMPRESSED WITH UTMOST SERIOUSNESS, MUST NOT BE TAKEN LIGHTLY. — A lawyer's oath is one impressed with the utmost seriousness; it must not be taken lightly. Every lawyer must do his best to live up to it. There would be a failure of justice if courts cannot rely on the submission as well as the representations made by lawyers, insofar as the presentation of evidence, whether oral or documentary, is concerned. Even without any intent on the part of a

member of the bar to mislead the court, such deplorable event did occur, he must not be allowed to escape the responsibility that justly attaches to a conduct far from impeccable.

D E C I S I O N

FERNANDO, J p:

The law is an exacting taskmaster. Membership in the bar, as so appropriately put, is a privilege burdened with conditions. 1 A lawyer is called upon by virtue of his oath of office to "do no falsehood, nor consent to the doing of any in court; . . . [and to] conduct [himself] as a lawyer according to the best of [his] knowledge and discretion with all good fidelity . . . to the courts . . ." 2 The question, one that has an element of novelty, is whether respondent Pedro B. Carranza, duly admitted to the practice of the law, did get entangled in the complexity of the strands in the web of obligation such an oath imposes? More specifically, did he manifest the utmost fealty to the trust reposed in him as an officer of the Court by taking all necessary measures to avoid the court being misled, even if such were the result not of design but of inadvertence?

A complaint against respondent Pedro B. Carranza was filed on July 15, 1966, for deception practiced on the Court of First Instance of Sorsogon, in that aware of the falsity of an Affidavit of Adjudication and Transfer executed by the mother of his client to the effect that her own mother left no legitimate ascendants or descendants or any other heirs except herself, when, as a matter of fact, the deceased was survived by four other daughters and one son, father of the complainant, he introduced the same in evidence. 3

Respondent Carranza was required in our resolution of July 22, 1966, to file an answer. Thereafter, on August 17, 1966, he did so, alleging as the truth of the matter that the aforesaid Affidavit of Adjudication and Transfer was introduced in evidence only to prove the fact of such transfer of the property in question to his client, respondent having "no hand in the making of said affidavit nor of the petition, both of which were prepared in Pasay City." 4

On September 1, 1966, the matter was referred by us to the Solicitor General for investigation, report and recommendation. Such investigation was had wherein both complainant and respondent were duly heard. The issue in the opinion of the then Solicitor General, the Honorable Antonio Barredo, now a member of this Court, as set forth in his report of March 18, 1968, is whether respondent "consented in violation of his oath, to the doing of any falsehood in court."

It was admitted in said report: "If respondent had anything to do with the preparation of the Petition or of the Affidavit of Adjudication, his participation does not appear from the evidence presented in this case. The Petition was subscribed and sworn to in Pasay City before one Atty. A. Mendoza, while the Affidavit was subscribed under oath in Pasay before Notary Public Ernesto V. Ventura. The foregoing documents were posted from Pasay to the Clerk of Court, Sorsogon. . . ." 5

It was likewise noted that respondent testified as to his being "not `very meticulous about the petition' because there was neither private nor government opposition thereto; that if he had intended to deceive the court by virtue of the documents, he could have told his client to answer his questions at the cadastral hearing to conform to the controverted paragraph in the Affidavit of Adjudication concerning the statement reproduced from the tax declaration that the decedent left no legitimate ascendants or descendants or any other heirs except the affiant . . ." 6

There is this admission in the aforesaid report. Thus: "As the evidence stands, there is no apparent causal link between the falsehood and the fact that respondent is the lawyer handling the cadastral case at the Sorsogon end." 7 Nonetheless, while recognizing the absence of evidence that such falsehood in the Affidavit of Adjudication could be traced to respondent, the report would hold him liable for discretionary action as the circumstance that various estates are involved "certainly warranted a greater exercise of diligence on respondent's part." 8

Moreover, as likewise stated therein, the fact "that he did not even bother to read the entirety of the affidavit runs counter to respondent's inescapable duty to clear up doubts and inconsistencies." 9 For he could have been aware "of the family litigations between his client and complainant which are rooted in successional rights. . . ." 10 If only for the above fact then, as stated in the report, "he should precisely have

taken the bother to read the entirety of the Affidavit of Adjudication when the cadastral case was heard on January 17, 1966. . . ." 11

From which, in the light of the above, it was the conclusion of the then Solicitor General Antonio Barredo, assisted by Assistant Solicitor General Frine Zaballero: "If he did not, he cannot be relieved from the consequences of his acts as a lawyer, and disclaim responsibility therefor. To allow respondent relief from his duty is to ignore what is obvious from the nature of the litigations in which he entered his appearance . . .. Actually, respondent's failure to read the affidavit proves that he did not properly inform himself of the evidence he was going to present in court, thereby exhibiting an indifference to proof inconsistent with facts he definitely knows. Thus, respondent has contributed to confusion and the prolongation of the cadastral suit, which pends as a petition for Relief. . . ." 12

It was the recommendation that the corresponding complaint for the violation of his oath against respondent be instituted. Such complaint was filed by the two above officials on March 18, 1968. Respondent was charged with "violation of his oath of office, [having] caused confusion and prolongation of the cadastral suit for presenting evidence therein containing a false statement inconsistent with facts he definitely knows by reason of the family litigations between his client and complainant herein, which are rooted in successional rights [and that] respondent's failure to discharge his duties as a lawyer consistent with his oath of office finds sanction in Rule 138, Section 27, Revised Rules of Court. . . ." 13

Respondent in his answer, dated March 16, 1968, raised no issue as to the facts. He would allege in justification however "that while it is true that the .. respondent was the counsel who appeared for the petitioner in Cadastral Case No. 2, LRC Cadastral Record No. 869 of Sorsogon Cadastre, yet he had nothing to do with the making of the petition and the annexes thereto attached; for the same were made in Pasay City and that when [he] accepted to represent the petitioner in the Cadastral Case mentioned above, there was no opposition from anybody .. not even from the Bureau of Lands nor from the Honorable Solicitor General, making, therefore, the hearing therein a mere formality. Such being the case, the [respondent] presented the petitioner's case on January 17, 1966, without meticulously going over the documents, and the alleged Affidavit of Adjudication and Transfer was presented to show the fact of transfer of the land described therein from the affiant to her son. The stenographic notes in that

proceeding will bear this matter out. [Respondent's] failure to notice the existence of an incorrect statement in the said affidavit was a mere oversight. It was not [willful], for he has not consented to the doing of the falsity therein made, since the same was prepared by petitioner's lawyer in Pasay City; nor did [respondent] willingly do falsehood in the hearing mentioned above; . . ." 14

 

There is something unique in this proceeding then. With the finding of the then Solicitor General Barredo that there was nothing willful in the conduct pursued by respondent in thus introducing in evidence the Affidavit of Adjudication and Transfer which turned out to be false, in the preparation of which, however, he had nothing to do, the charge of deliberate deception obviously cannot be sustained.

Would that of itself entirely exculpate him from any responsibility? The answer must be in the negative. As was correctly pointed out in the complaint, his failure to exercise greater care did result in the "confusion and prolongation of the cadastral suit." Under the circumstances, it would be to err on the side of undue leniency if he would be held blameless. He had incurred liability. His fidelity to his oath as attorney was less than entire.

Every member of the bar must be on his guard, lest through oversight or inadvertence, the way he conducts his case or the evidence he presents could conceivably result in a failure of justice. Time and time again, lawyers have been admonished to remember that they are officers of the court, and that while they owe their clients the duty of complete fidelity and the utmost diligence, they are likewise held to strict accountability insofar as candor and honesty towards the court is concerned.

Even if there be no intent to deceive, therefore, a lawyer whose conduct, as in this case, betrays inattention or carelessness should not be allowed to free himself from a charge thereafter instituted against him by the mere plea that his conduct was not willful and that he has not consented to the doing of the falsity.

A lawyer's oath is one impressed with the utmost seriousness; it must not be taken lightly. Every lawyer must do his best to live up to it. There would be a failure of justice if courts cannot rely on the submission as well as the representations made by lawyers, insofar as

the presentation of evidence, whether oral or documentary, is concerned. If, as unfortunately happened in this case, even without any intent on the part of a member of the bar to mislead the court, such deplorable event did occur, he must not be allowed to escape the responsibility that justly attaches to a conduct far from impeccable.

WHEREFORE, respondent Pedro B. Carranza is reprimanded and warned that a repetition of an offense of this character would be much more severely dealt with. The Court of First Instance of Sorsogon, through any of the district judges, is hereby directed to administer in public the reprimand thus imposed on respondent Pedro B. Carranza. The complainant, Eduardo J. Berenguer, must be duly informed of the date when such reprimand is to be administered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Ruiz Castro, Capistrano and Teehankee, JJ., concur.

Barredo, J., did not take part.

SECOND DIVISION

[G.R. No. L-27211. July 6, 1977.]

EUSEBIA BARRAMEDA, plaintiff-appellant, vs. ENGRACIO CASTILLO, defendant-appellee.

Dante H. Diamante, Medardo B. Medenilla & Teodoro C. Magno, Jr. for appellant.

Leovigildo L. Cerilla for appellee.

D E C I S I O N

AQUINO, J p:

This case is about the effectiveness of the service of a court's decision by registered mail.

Eusebia Barrameda sued Engracio Castillo in the municipal court of Lopez, Quezon Province in Civil Case No. 269. (The record does not show the nature of the suit). A copy of the court's decision, which was adverse to Barrameda, was sent by registered mail on January 28, 1966 to her lawyer at San Pablo City. That mail was received in the city post office on the following day, January 29. On that day and on February 3 and 9, 1966 the city postmaster's office supposedly sent to Barrameda's counsel three notices regarding the registered mail.

Barrameda's lawyer did not claim that mail. It was returned to the municipal court and was received there on March 3, 1966 as unclaimed mail.

Eusebia Barrameda must have been informed that the adverse decision could not be served upon her lawyer. On March 9, 1966 she received personally a copy of the decision. (Whether she got it or it was served upon her is not clear in the inadequate record on appeal.). LexLib

Through a lawyer, Barrameda filed a notice of appeal on March 11, 1966. Castillo did not interpose in the municipal court any objection to her appeal. The court gave it due course. The record was transmitted to the Court of First Instance where the case was docketed as Civil Case No. C-232.

On April 21, 1966 Castillo filed in the Court of First Instance a motion to dismiss the appeal on the ground that it was filed out of time. His theory was that the fifteen-day reglementary period within which Barrameda could appeal should be counted from the expiration of five days from the date of the first notice sent by the postmaster to Barrameda's lawyer.

In this case, the supposed first notice was sent on January 29, 1966, when the mail in question was received in the San Pablo City post office (not January 28, 1966, as erroneously assumed by Castillo and the lower court). The five days counted from that date expired on February 3, 1966 when the second notice was allegedly sent to Barrameda's lawyer. cdrep

Eusebia Barrameda opposed Castillo's motion to dismiss her appeal. She contended that Castillo failed to prove that her counsel actually received the supposed three notices sent by the postmaster. She argued that because in the municipal court Castillo did not object to

her appeal, his motion could no longer be entertained in the Court of First Instance.

The trial court granted the motion and dismissed the appeal. It assumed that the fifteen-day period should be counted from February 7, 1966, the date of the third notice (the third notice was allegedly sent on February 9, 1966) and the period expired on February 21, 1966, according to the trial court's computation.

Eusebia Barrameda appealed to this Court. She Specified that she was going to question the legality of the order of dismissal.

Rule 13 of the Rules of Court provides:

"SEC. 7.Service of final orders or judgment.— Final orders or judgments shall be served either personally or by registered mail.

"SEC. 8.Completeness of service.— Personal service is complete upon actual delivery . . . Service by registered mail is complete upon actual receipt by the addressee; but if he fails to claim his mail from the post office within five (5) days from the date of first notice of the postmaster, service shall take effect at the expiration of such time."

In service by registered mail, the general rule is that service is complete upon actual receipt by the addressee. The exception is that when the addressee does not claim his mail within five days from the date of the first notice of the postmaster, then the service takes effect at the expiration of such time.

As illustrated by Justice Cesar Bengzon, if the first notice is received by the addressee on December 1, and he gets his mail on December 3, the service is complete on December 3, the date of the actual receipt (general rule).

But if the addressee gets his mail only on December 15, service is deemed complete on December 6 or five days from December 1, the date of the first notice (exception).

If the addressee never gets the mail, service is also deemed complete on December 6, as provided in the exception to the general rule. If he receives his mail two months after it is registered and there is no proof of the first notice, then service is complete on the date of actual

receipt, following the general rule. (Grospe vs. Court of Appeals and Uera, 106 Phil. 1144, 1148-9). LLpr

Bearing in mind that the exception in service by registered mail refers to constructive service, not to actual receipt of the mail, it is evident that the fair and just application of that exception depends upon conclusive proof that a first notice was sent by the postmaster to the addressee. The presumption that official duty has been regularly performed should not be applied to such a situation.

Therefore, to obviate injustice, it is incumbent upon a party, who relies on constructive service or who contends that his adversary was served with a copy of a final order or judgment upon the expiration of five days from the first notice of registered mail sent by the postmaster to prove that the first notice was sent and delivered to the addressee. A certification from the postmaster would be the best evidence of that fact (Grafil vs. Feliciano, L-27156, June 30, 1967, 20 SCRA 616). The mailman's testimony may also be adduced to prove that fact, as was done in Aldecoa vs. Hon. Arellano and Siguenza, 113 Phil. 75, 78.

The postmaster's certification as to the sending of the first notice "should include the data not only as to whether or not the corresponding notices were issued or sent but also as to how, when and to whom the delivery thereof was made." (Hernandez vs. Navarro, L-28296, November 24, 1972, 48 SCRA 44, 64, per Barredo, J.).

As stressed by Justice Barredo in a recent case, "there must be clear proof of compliance with the postal regulations governing the sending and receipt of the notice referred to in" section 8 of Rule 13 (Vecino vs. Court of Appeals, L-38612, March 29, 1977). The mere exhibition in court of the envelope containing the unclaimed mail is not sufficient proof that a first notice was sent.

Note that in a certain case a first notice was sent but it was received by the addressee's eleven-year old child who did not deliver it to the addressee himself. It was held that to apply the presumption in that case and to insist on constructive service would work an injustice rather than promote justice (Cabuang vs. Hon. Bello, 105 Phil. 1135, 1138).

In the instant case, there is no evidence that the first notice was sent to Barrameda's lawyer and that it was delivered to him or should have been received by him. The envelope containing the unclaimed mail

was presented in court. The face of the envelope contains the notation "Returned to sender. Reason: Unclaimed". Above the stamp, on the back of the envelope, with the legend "City of San Pablo, Philippines, Jan. 29, 1966", are written the dates, "2-3-66 and 2-9-66". Written also on the back of the envelope are the following: "R to S, notified 3/3/66".

Relying on those notations on the envelope, the trial court literally and rigidly applied the presumption as to constructive service. It did not require appellee Castillo to present the postmaster's certification that a first notice was sent to Barrameda's lawyer and that the notice was received by the latter.

Under those circumstances, the trial court's order dismissing Barrameda's appeal is fraught with injustice.  LibLex

WHEREFORE, the trial court's order of dismissal is reversed and set aside. It is directed to give due course to the appeal of Eusebia Barrameda. No costs.

SO ORDERED.

Fernando (Chairman), Barredo and Concepcion Jr., JJ., concur.

Separate Opinions

ANTONIO, J., concurring:

Concurs. In case the service of the order or judgment is sought to be effected by registered mail, but there is no proof that the notice for the registered mail was received by the addressee, the presumption, under Section 8 of Rule 13 of the Rules of Court, of the delivery of the registered mail or completion of the service after five (5) days from date of the first notice, certainly does not arise.

SECOND DIVISION

[G.R. No. L-27730. January 21, 1974.]

PRIMA MALIPOL, in her own behalf and as guardian ad litem of her minor children, LYDIA MALIJAN, JOSEFINA MALIJAN, TEODORA MALIJAN,

and SEBASTIAN MALIJAN, plaintiffs-appellees, vs. LILY LIM TAN and ERNESTO LABSAN, defendants-appellants.

Edgardo Moncada for plaintiffs-appellees.

Achacoso, Ocampo & Simbulan for defendants-appellants.

D E C I S I O N

ZALDIVAR, J p:

Appeal on questions of law from the decision dated July 1, 1966, a judgment by default, and from the order dated October 10, 1966, of the Court of First Instance of Batangas in its Civil Case No. 1732 which denied defendants-appellants' motion to lift the order of default and for a new trial and which considered the judgment by default as standing with full force and effect.

In the evening of February 6, 1965, at about 8:35 o'clock, Pantaleon Malijan, who was walking with his companion Leonardo Amante on the shoulder of the road in Barrio San Felix, Sto. Tomas, Batangas, was hit by a gasoline tanker and was thrown to the ground. While he was sprawling on the ground Malijan was run over by the tanker's right wheel that got detached from its axle. Malijan's companion, with the aid of the barrio captain, brought Malijan to the San Pablo City Hospital where he died that same night, the cause of death being "possible traumatic cerebral hemorrhage due to vehicular accident."

The gasoline tanker with Plate No. T-52573, series of 1964, driven at the time of the accident by herein appellant Ernesto Labsan, was being used in connection with the gasoline business of the owner, the herein appellant Lily Lim Tan.

Representations and demands for payment of damages having been ignored by appellants, appellees filed on May 18, 1966 a complaint in the Court of First Instance of Batangas, praying that appellants be condemned to pay, jointly and severally, the damages as specified in said complaint. The appellees are the mother and the minor brothers and sisters of the deceased Pantaleon Malijan.

Appellants were duly served with summons on May 19, 1966, but they failed to file their answer within the reglementary period. Upon appellees' motion of June 8, 1966, the trial court, in an order dated June 10, 1966, declared the appellants in default, and appellees were permitted to present their evidence in the absence of the appellants. The trial court rendered a decision, dated July 1, 1966, the dispositive portion of which reads as follows:

"WHEREFORE, finding the averments in the complaint as supported by the evidence to be reasonable and justified, judgment is hereby rendered in favor of the plaintiffs and against the defendants. The defendant driver. Ernesto Labsan, is ordered (1) to pay the sum of P2,100.00 to the plaintiffs for expenses for hospitalization, medical treatment, vigil and burial of Pantaleon Malijan; (2) to pay to the plaintiffs the sum of P6,000.00 for the death of said victim; (3) to pay to the plaintiffs the sum of P20,000.00 for the loss of earnings of said deceased for a period of five years; (4) to pay to the plaintiffs the sum of P5,000.00 moral damages; (6) to pay to the plaintiffs the sum of P2,000.00 for attorney's fees and P500.00 for incidental and litigation expenses; and (6) to pay the costs of the suit. Should Ernesto Labsan not be able to pay the foregoing damages, they shall be paid for by defendant Lily Lim Tan, who by law, being the owner and operator of the gasoline tanker that featured in the accident, is subsidiarily liable."

Copy of the decision was received by the appellees on August 23, 1966.

A motion for execution was filed on August 26, 1966 by appellees but the trial court held its resolution in abeyance until September 22, 1966 when the judgment would become final.

On September 21, 1966 appellants filed a verified motion to lift the order of default and for a new trial, alleging that they were deprived of their day in court when the order of default was issued and a decision rendered thereafter; that they had good and valid defenses, namely: (a) that the accident which gave rise to the case was due to force majeure; (b) that appellant Ernesto Labsan was without fault in the accident that gave rise to the case; and (c) that appellant Lily Lim Tan had exercised the due diligence required of a good father of a family to prevent damage. Finding said motion to be without merit, the trial court denied the same on October 10, 1966. Hence, this appeal wherein appellants made assignment of errors, as follows:

(a)The trial court erred in finding that appellants took the complaint for granted by reason of the fact that appellants referred to their lawyer the complaint for answer only after the lapse of eleven (11) days from receipt thereof;

(b)The trial court erred in not holding that the mistake committed by the late Atty. Daniel Chavez in giving the wrong date of receipt by appellants of the summons and the complaint to Atty. Romulo R. de Castro on June 10, 1966 due to the abnormal mental condition of the late Atty. Daniel Chavez on June 10, 1966 which thereafter resulted in the commission of suicide by the latter on June 17, 1966, constitutes the mistake and accident in law which warrant the relief from default and the granting of the new trial;

(c)The trial court erred in not holding that the fact that appellants, through Atty. Romulo R. de Castro, filed on June 10, 1966 a motion for extension of time to file answer, and thereafter actually did file their answer to the complaint on June 20, 1966 wherein they alleged good, valid and meritorious defenses against the claim of plaintiffs in the complaint, should warrant favorable consideration of appellants' motion to lift order of default and for new trial; and

(d)The trial court erred in not granting appellants' motion to lift order of default and for new trial.

1.In support of their first assignment of error, counsel for appellants contends that the finding of the trial court, that the appellants took the complaint for granted when they referred the complaint to their lawyer only on the eleventh day after receipt thereof, was unwarranted, because appellants had 15 days from receipt of the summons and complaint to answer and their lawyer, the late Atty. Daniel Chavez, after the complaint was referred to him on the eleventh day, had still four days to file the answer, which he could very well do inasmuch as he was well acquainted with the facts because he was the lawyer of appellant Ernesto Labsan in Criminal Case No. 2200 of the Court of First Instance of Batangas for homicide thru reckless imprudence — which case arose from the very accident subject of appellees' complaint; that appellant Lily Lim Tan, furthermore, had instructed her employee, Eleuterio Dizon, to handcarry the summons and to deliver it to nobody except to Atty. Chavez; that Atty. Chavez, in a long distance telephone conversation with appellant Lily Lim Tan, assured the latter that he would attend to the complaint.

We do not find merit in the contention of counsel for appellants. It is within the sound discretion of the court to set aside an order of default and to permit a defendant to file his answer and to be heard on the merits even after the reglementary period for the filing of the answer has expired, but it is not error, or an abuse of discretion, on the part of the court to refuse to set aside its order of default and to refuse to accept the answer where it finds no justifiable reason for the delay in the filing of the answer. In motions for reconsideration of an order of default, the moving party has the burden of showing such diligence as would justify his being excused from not filing the answer within the reglementary period as provided by the Rules of Court, otherwise these guidelines for an orderly and expeditious procedure would be rendered meaningless. 1 Unless it is shown clearly that a party has justifiable reason for the delay the court will not ordinarily exercise its discretion in his favor. 2

In the instant case, We agree with the trial court, that appellants have not shown that they exercised such diligence as an ordinary prudent person would exercise, to have the answer filed within the reglementary period. Appellant Lily Lim Tan admitted in her affidavit 3 that she received the summons and copy of the complaint on May 19, 1966, and that having read the complaint she found out that she was being sued, together with her driver, for damages in connection with the accident of February 6, 1965 at Sto. Tomas, Batangas. The damages asked in the complaint amounts to P36,600.00. The summons required them to answer the complaint within 15 days from receipt thereof, and warned them that should they fail to answer within said period the plaintiffs would take judgment against-them for the relief demanded in the complaint. The damages demanded was not a negligible sum, and appellant Lily Lim Tan, who is a business woman, should have considered the matter a serious one. Ordinary prudence would dictate that she should concern herself about the matter, that she should refer said complaint with the least possible delay to her lawyer. But, for reasons she did not explain, she referred the complaint to her lawyer only after the lapse of ten (10) days from receipt thereof, i.e., on May 30, 1966. She should have considered that four days might not be sufficient time for her lawyer to prepare and file the answer.

Appellants, however, contend that their lawyer, Atty. Chavez, could very well prepare the answer within the remaining four days of the reglementary period, for he was conversant with the facts of the case.

Be that as it may, the fact was that Atty. Chavez failed to file the answer. Because Atty. Chavez assured her, in their long distance telephone conversation that he would take care of the complaint, appellant Lily Lim Tan took for granted that the answer would be filed on time. Said appellant should have checked before the expiration of the period for filing the answer whether the complaint was really taken care of, or not. But this, appellant Lily Lim Tan failed to do, and this is another instance showing her lack of concern over the complaint. There was, therefore, no showing of due diligence on the part of appellants which would excuse their failure to file their answer on time. There is no showing either that the other appellant, Ernesto Labsan, had taken any step to have an answer filed in his behalf — evidently he was relying on his employer.

 

2.In support of the second assignment of error, appellants contend that the facts show that on June 10, 1966, Atty. Chavez, who was then acting strangely, endorsed the summons and complaint to Atty. Romulo R. de Castro; that upon inquiry by Atty. de Castro from Atty. Chavez the latter informed him that the summons was served on appellants on May 30, 1966; that appellant Lily Lim Tan, who was assured by Atty. Chavez in their long distance telephone conversation that the complaint would be attended to, could not, by the exercise of ordinary diligence, have foreseen, and avoided, the circumstance that at the time she referred the summons to Atty. Chavez, the latter was already in an abnormal condition which later resulted in his committing suicide on June 17, 1966; that it was Atty. Chavez's abnormal condition and his having given to Atty. de Castro the wrong date of the receipt of the summons by the appellees that caused the delay in the filing of the answer; that said circumstances constituted mistake and accident which entitled appellants to relief from default and a grant of new trial.

Appellants' contention that the delay in filing the answer was due to mistake and accident is untenable.

The mistake, according to appellants, consisted in Atty. Chavez' having told Atty. de Castro on June 10, 1966 that appellants received the summons and complaint on May 30, 1966. Even if Atty. Chavez had told Atty. de Castro the correct date, that is, that appellants received the summons on May 19, 1966, the answer could not have been filed on time by Atty. de Castro, because the reglementary period for filing

the answer expired on June 3, 1966, and it was already June 10, 1966, when the complaint was endorsed by Atty. Chavez to Atty. de Castro.

The accident, according to appellants' counsel, consisted in Atty. Chavez's being in an abnormal condition at the time the complaint was given to him on May 30, 1966. This claim of appellants is not supported by the record.

The record does not show that Atty. Chavez was suffering from an abnormal mind on May 30, 1966. His actuations on May 30 were those that could be expected of a normal person. Atty. Chavez asked the employee of appellant Lily Lim Tan about the date when his employer received the summons and complaint, and because the employee could not give him the desired information Atty. Chavez placed a long distance telephone call to appellant Lily Lim Tan to ask about said date. This action of Atty. Chavez showed that he was very much aware that the reglementary period within which the answer should be filed was to be computed from the date of the receipt of the summons and the complaint. It also showed that Atty. Chavez knew the easiest and the most practical means to get the information that he needed — that was by a long distance telephone call to his client, Lily Lim Tan. These actuations of Atty. Chavez showed that he knew the importance of the matter at hand, and he was exercising the ordinary and reasonable care over the interests of his client. These specific actions of Atty. Chavez indicated that as of May 30, 1966 he had a sound mind.

It is claimed by appellants that on June 10, 1966 Atty. Chavez endorsed the complaint to Atty. de Castro, and told the latter that the summons and complaint were received by the appellants on May 30, 1966. It is further claimed by appellants that this information given by Atty. Chavez — that the summons and complaint were received by the appellants on May 30, 1966 — was the mistake that caused the delay of the filing of the answer. But it should be noted that on June 10, 1966 when Atty. Chavez endorsed the complaint to Atty. de Castro and informed the latter that the summons and complaint were received by the appellants on May 30, 1966, the period within which the answer should be filed had already expired — the expiry date being June 3, 1966. There is no showing that between May 30, when Atty. Chavez received the summons and complaint from the employee of Lily Lim Tan, and June 3, 1973 Atty. Chavez was incapacitated to file the answer. And so it is clear that before the case was endorsed to Atty. de Castro, the appellants were already in default. The failure to file the answer on time may well be attributed to the mistake or negligence of

Atty. Chavez. The appellants are bound by the mistakes, and may suffer by the negligence, of their lawyer. In fact, on June 8, 1966, or two days before Atty. Chavez endorsed the case to Atty. de Castro, the appellees had filed a motion in court to declare the defendants (now the appellants) in default. The moves taken by Atty. de Castro — in filing a motion for extension of time to file an answer on June 10, 1966, and in finally filing an answer on June 20, 1966 — were already late.

The fact that Atty. Chavez committed suicide on June 17, 1966 does not necessarily prove that he was abnormal, incompetent or insane on May 50, 1966. Although there is a judicial declaration that a sane man would not commit suicide, cognizance is nevertheless taken of the fact that circumstances at some given time may impel a person to commit suicide. 4 The probative value of suicide in determining the sanity of a person is dependent on the factual situation in each case. Such matters as the reasons for the act of self-destruction, the circumstances indicating the person's state of mind at the time, and other pertinent facts must be considered. The appellants had not indicated to the trial court any circumstance from which the trial court could form an opinion of the mental condition of Atty. Chavez before he committed suicide. The trial court, therefore, did not err when it did not favorably consider the claim of the appellant that their failure to file their answer to the complaint was due to accident or mistake, as contemplated in Section 3 of Rule 18 of the Rules of Court.

3.In support of the third assignment of error, appellants argue that acting on the wrong information given by Atty. Chavez, Atty. Romulo de Castro filed on June 10, 1966 a motion for an extension of 20 days within which to file an answer and that he did file the answer with good, valid and meritorious defenses on June 20, 1966; that on June 27, 1966 when appellees were allowed to present their evidence ex-parte, the motion for extension of time and the answer already formed part of the records of the case; that inasmuch as the late filing of the answer was due to accident and mistake, and appellants had good, valid, and meritorious defenses, the motion to lift the order of default and for new trial should have been favorably considered by the court. 5

Let it be noted that the lower court rendered its decision on July 1, 1966, and the appellees received notice of said decision on August 23, 1966. The decision would have become final on September 22, 1966. On September 21, 1966 the appellants filed their motion to lift the order of default and for new trial. The motion of the appellants therefore, was in the nature of a motion for a new trial based on fraud,

accident, mistake or excusable negligence under paragraph (a) of Section 1 of Rule 37 of the Rules of Court. Under Section 2 of said Rule 37 the moving party must show that he has a meritorious defense. The facts constituting the movant's good and substantial defense, which he may prove if the petition were granted, must be shown in the affidavit which should accompany the motion for a new trial. 6 In the instant case, the motion to lift the order of default and for new trial as well as the affidavit of merits accompanying the motion did not contain clear statements of the facts constituting a good and valid defense which the appellants might prove if they were given a chance to introduce evidence. The allegations in the motion that defendants have good and valid defenses, namely: that the accident which gave rise to the case was force majeure; that defendant Ernesto Labsan is absolutely without fault in the accident that gave rise to the case; and that defendant Lily Lim Tan has exercised due diligence required of a good father of a family to prevent damage, 7 are mere conclusions which did not provide the court with any basis for determining the nature and merit of the probable defense. An affidavit of merit should state facts, and not mere opinion or conclusions of law.

Hence the trial court correctly denied the motion to set aside order of default and for new trial.

We must, however, point out a flaw in the decision of the lower court. It is stated in the decision appealed from that the driver, Ernesto Labsan, was primarily liable for the payment of damages adjudged therein, and the appellant Lily Lim Tan, being the owner and operator of the gasoline tanker that figured in the accident, is subsidiarily liable, that is, liable only in case Ernesto Labsan was not able to pay. This is not correct. The action in the instant case was brought not to demand civil liability arising from a crime. The complaint makes no mention of a crime having been committed, much less of the driver Ernesto Labsan having been convicted of a crime. But there is an allegation in the complaint that Ernesto Labsan was the authorized driver of the truck that figured in the accident, which truck was operated by appellant Lily Lim Tan in connection with her gasoline business. The prayer in the complaint, furthermore, sought to hold appellants jointly and solidarily liable for damages. The instant action, therefore, was based, as the complaint shows, on quasi delict. Under Article 2180 of the Civil Code, which treats of quasi delicts, the liability of the owners and managers of an establishment or enterprise for damages caused by their employees is primary and direct, not subsidiary. 9 The employer,

however, can demand from his employee reimbursement of the amount which he paid under his liability. 10 The employer, appellant Lily Lim Tan, must be held primarily and directly, not subsidiarily, liable for damages awarded in the decision of the lower court. This is, of course, without prejudice to the right of appellant Lily Lim Tan to demand from her co-appellant Ernesto Labsan reimbursement of the damages that she would have to pay to appellees.

 

WHEREFORE, the decision of the Court of First Instance of Batangas, dated July 1, 1966, as modified in accordance with the observations We made in the preceding paragraph, and the order, dated October 10, 1966, denying appellants' motion for the lifting of the order of default and for new trial, in Civil Case No. 1732, are affirmed. Costs against defendants-appellees.

It is so ordered.

Fernando, Barredo, Antonio and Aquino, JJ ., concur.

EN BANC

[G.R. No. L-28078. April 29, 1971.]

INTESTATE ESTATE OF THE DECEASED LUIS C. DOMINGO, SR., CONSUELO DOMINGO DE LOPEZ, administratrix-petitioner, vs. PEDRO A. AQUINO, deceased, substituted by SALVACION YUSAY AQUlNO ETC., and the HONORABLE COURT OF APPEALS, respondents.

Teodoro P. Regino for petitioner.

Angel Sanchez for respondent.

SYLLABUS

1.REMEDIAL LAW; CIVIL PROCEDURE; SERVICE OF JUDGMENT BY REGISTERED MAIL; RULE; APPLICATION IN CASE AT BAR. — The records

at bar amply show that Atty. Jose A. Unson was the counsel on record of the petitioner estate in the appellate court and never filed any withdrawal as such counsel. As a matter of fact, even after the removal on May 21,1963 of Luis Domingo, Jr. as administrator of the estate, Atty . Unson filed in the appellate court his memorandum dated August 17, 1963, for the estate as appellant. While it may be true that Atty. Unson ceased as counsel for the estate and for the former administrator sometime on November 8, 1966, when the intestate court granted his motion dated November 2, 1966, to withdraw as counsel by virtue of his appointment to and assumption on February 8, 1966 of the public office of Assistant Administrator of the Sugar Quota Administration, this was true only insofar as the case in the intestate court was concerned. He continued on record in the appellate court as counsel for the estate as appellant therein and did not file therein any withdrawal as counsel and neither did the petitioner inform said court of any change of counsel or of parly-administrator, as required by Rule 138, Section 26 of the Rules of Court. More so, no appearance of any new counsel for the estate was ever filed with the appellate court. Notice and copy of the appellate court's decision of January 20, 1967, were therefore duly served by registered mail on the estate's counsel of record at his address of record at 307 Trinity Building, San Luis, Ermita, Manila, in accordance with Rule 13, Section 8 of the Rules of Court. And in accordance with said Rule, service by registered mail of the appellate court's decision upon the petitioner's counsel of record was deemed completed and effected upon the address failure to claim his mail on the fifth day after the first notice of the postmaster. This has ever since been the prevailing rule in the interests of public policy and sound administration of justice, as most recently affirmed in Fojas vs. Navarro, L-26365, April 30, 1970, citing a long line of applicable precedents.

2.ID.; ID.; PLEADINGS; FORMAL REQUIREMENT OF SIGNATURE AND ADDRESS (RULE 7, SEC. 5); FAITHFUL ADHERENCE THEREOF, REQUIRED BY THE COURT. — Petitioner's counsels are reminded of this Court's admonition in Pajares vs. Abad Santos, 30 SCRA 748 (Nov. 29, 1969) and other cases cited therein, to wit, that "the cooperation of litigants and their attorneys is needed so that needless clogging of the court dockets with unmeritorious cases may be avoided. There must be more faithful adherence to Rule 7, Section S of the Rules of Court which provides that 'the signature of an attorney constitutes a certificate by him that he has read the pleading and that to the best of his knowledge, information and belief, there is good ground to support

it; and that it is not interposed for delay' and expressly admonishes that 'for a willful violation of this rule an attorney may be subjected to disciplinary action "'

D E C I S I O N

TEEHANKEE, J p:

An original action for certiorari challenging a judgment of the Court of Appeals as null and void for having been allegedly entered in excess of jurisdiction and/or with grave abuse of discretion.

On August 7, 1961, the Court of First Instance of Pangasinan rendered judgment approving the money claim of respondent Pedro A. Aquino against the petitioner estate by ordering the then special administratrix, Asuncion Domingo Sta. Maria, "to pay from the available funds of the estate the sum of P20,000.00 with 12% interest per annum from June 10, 1954 to Pedro A. Aquino."

Both parties appealed from the said judgment to the Court of Appeals, insofar as it was adverse to them, and on January 20, 1967, the appellate court in an extended nineteen-page decision penned by Justice Ruperto C. Martin, which dealt mainly and exhaustively with the contentions of appellant estate, found for respondent asappellant, and affirmed the lower court's judgment with modifications in favor of respondent, as follows: "IN VIEW OF THE FOREGOING, except with the modification of the order as to the payment of the corresponding interest stipulated in the promissory note (Exhibit C) the claim of Atty. Pedro A. Aquino is hereby approved and allowed, and the administratrix ordered to pay, from the available funds of the estate, the sum of P20,000.00 with compound interest at the rate of 12% per annum from July 27, 1953, plus P500.00 as attorney's fees, to Pedro A. Aquino."

According to the present petition itself, the estate's counsel of record in the appellate court, Atty. Jose A. Unson, did not receive the notice and copy of the appellate court's judgment sent to him by registered mail; but the estate's attorneys in the intestate proceedings pending in the lower court, Attys. Primicias, Del Castillo and Macaraeg, were

verbally informed by respondent's counsel of the judgment rendered on appeal by the appellate court. 1

Pursuant to said information, petitioner caused to be filed on March 9, 1967, with the appellate court an "Appearance with Motions for Substitution and to be served with a copy of the Judgment," stating inter alia, that the former special administratrix, Asuncion Domingo Sta. Maria had long resigned as such with the permission of the intestate court, that the other co-special administrator, Atty. Luis Domingo, Jr. (who had caused the prosecution of the appeal) was removed from his trust by the intestate court's order dated May 21, 1963, for having squandered cash funds of the estate, and that as a consequence, Mrs. Consuelo Domingo de Lopez was appointed judicial administratrix and has since been administering the estate alone; that Mrs. Lopez as judicial administratrix wished to file a motion for reconsideration of the appellate court's judgment and that the clerk of court be directed to serve copy of said judgment on her counsel instead of on Atty. Unson as the former special administrator's counsel "for purposes of starting of time to move for re hearing or reconsideration;" and praying that as present judicial administratrix, she be substituted in lieu of the former joint administrators and that her counsel be served with copy of the appellate court's decision.

Upon due opposition of respondent on the ground of finality of the judgment, the appellate court denied the petitioner's motion for reconsideration per its resolution ofApril 27, 1967.

No further move was made by petitioner thereafter until almost five months later when on September 23, 1967, after respondent had filed in the intestate court a motion for execution of the judgment, as affirmed in his favor by the appellate court, it filed the present petition. Upon the representations — contrary to the records — that the appellate court had granted "new or further relief" in favor of respondent by awarding compound interest on the sum due respondent and that Atty. Unson has ceased to be the estate's lawyer since May 21, 1963 with the removal of the former administrator, Luis Domingo, Jr. as such, the Court issued on October 3, 1967, the corresponding summons and required respondents to answer the petition.

The Court, upon urgent supplemental petition of petitioner, further issued on November 7, 1967, upon a P1,000.00 bond, a writ of

preliminary injunction enjoining enforcement, through sale of the estate's properties, of the appellate court's judgment.

The court finds no merit in the petition.

1.The records at bar amply show that Atty. Jose A. Unson was the counsel on record of the petitioner estate in the appellate court and never filed any withdrawal as such counsel. As a matter of fact, even after the removal on May 21, 1963 of Luis Domingo, Jr. as administrator the estate, Atty. Unson filed in the appellate court his memorandum dated August 17, 1963, for the estate as appellant. While it may be true that Atty. Unson ceased as counsel for the estate and for the former administrator sometime on November 8, 1966, when the intestate court granted his motion dated November 2, 1966, to withdraw as counsel by virtue of his appointment to and assumption on February 8, 1966 of the public office of Assistant Administrator of the Sugar Quota Administration, 2 this was true only insofar as the case in the intestate court was concerned. He continued on record in the appellate court as counsel for the estate as appellant therein and did not file therein any withdrawal as counsel and neither did the petitioner inform said court of any change of counsel or of party-administrator, as required by Rule 138, section 26 of the Rules of Court. More so, no appearance of any new counsel for the estate was ever filed with the appellate court.

2.Notice and copy of the appellate court's decision of January 20, 1967, were therefore duly served by registered mail on the estate's counsel of record at his address of record at 307 Trinity Building, San Luis, Ermita, Manila, in accordance with Rule 13, section 8 of the Rules of Court. 3 And in accordance with said Rule, service by registered mail of the appellate court's decision upon the petitioner's counsel of record was deemed completed and effected upon the addressee's failure to claim his mail on the fifth day after the first notice of the postmaster. 4 This has ever since been the prevailing rule in the interests of public policy and sound administration of justice, as most recently affirmed in Fojas vs. Navarro, 5 citing a long line of applicable precedents.

3.The present administratrix gives no satisfactory explanation as to her failure to substitute herself vice Luis Domingo, Jr., since the latter's removal on May 21, 1963, when she became the sole administrator (which she previously shared with Luis from December 21, 1961), or to then engage new counsel vice Atty. Unson in the appellate court. Her

very motion for substitution filed on March 9, 1967 with the appellate court after its decision of January 20, 1967 recognized the fact that the appellate court had already duly handed down its adverse decision and merely expressed her wish to belatedly file a motion for reconsideration on behalf of the petitioner estate. After the appellate court's denial of her motion on April 27 1967, she was apparently resigned to the futility of filing any such motion, in view of thefinality of the appellate court's decision — for such motion was never filed.

 

4.One vital factor that the present administratrix, Mrs. Lopez, has obviously failed to appreciate, wittingly or otherwise, is that the party in the subject case was the intestate estate of the deceased Luis C. Domingo, Sr. and that Atty. Unson represented the estate as counsel in the said case. The fact that his services were engaged by Luis Domingo, Jr. in his (Luis') official capacity as administrator, did not make him the personal counsel of Luis. Thus, notwithstanding Luis' removal as administrator, Atty. Unson continued to represent the estate as counsel in the appellate court. He continued to be authorized to represent the estate as its counsel, until the new administrator should terminate his services, which she never did.

5.The representations made by the present administrator and her counsel in the petition at bar — filed almost five months after the appellate court's denial of her belated motion for substitution and to be served with copy of its decision — to the effect that the appellate court had granted respondent "new and further relief" in its decision by the award of compound interest on the sum due respondent are deplorable. They failed to set out before the Court the full facts, viz, that respondent had duly prayed for the award of compound interest by the intestate court in accordance with the very stipulation of the promissory note sued upon; that respondent had duly moved the intestate court to reconsider its decision failing to provide for such compound interest; that the intestate court, in denying respondent's motion, merely stated "that the issue may just as well be decided in the appellate court, since both parties had indicated their intention to appeal; and that respondent in fact filed his appeal from this adverse portion of the intestate court's decision, as well as the non-award of the stipulated attorney's fees of P500.00. The appellate court therefore properly modified the intestate court's decision by awarding such compound interest and attorney's fees as prayed for in the errors assigned in respondent's brief as appellant.

6.It results clearly that the petition, alleging and praying that the appellate court's decision of January 20, 1967, be declared null and void for having been rendered and entered in excess of or without jurisdiction or that this Court send for the records from the appellate court "for purposes of review and thereafter render its own decision reversing the judgment [of the appellate court]" notwithstanding its long having become final and executory, is utterly untenable and without legal justification.

7.Petitioner's counsel are reminded of this Court's admonition in Pajares vs. Abad Santos, 6 and other cases cited therein, to wit, that "the cooperation of litigants and their attorneys is needed so that needless clogging of the court dockets with unmeritorious cases may be avoided. There must be more faithful adherence to Rule 7, section 5 of the Rules of Court which provides that 'the signature of an attorney constitutes a certificate by him that he has read the pleading and that to the best of his knowledge, information and belief, there is good ground to support it; and that it is not interposed for delay' and expressly admonishes that 'for a willful violation of this rule, an attorney may be subjected to disciplinary action.'"

WHEREFORE, the petition is ordered dismissed and petitioner's counsel shall pay treble costs. The writ of preliminary injunction issued or November 7, 1967 is hereby dissolved and upon promulgation of this decision, respondent may proceed immediately with the enforcement and execution by the intestate court of the appellate court's judgment of January 20, 1967, in his favor. This decision shall be noted in the personal record of the counsel for petitioner and of their associate attorney, Teodoro P. Regino, who signed and verified the petition. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Barredo, Villamor and Makasiar, JJ., concur.

EN BANC

[A.C. No. 503 . October 29, 1965.]

MARIA CRISTINA MANALOTO, petitioner, vs. SIXTO L. REYES, respondent.

SYLLABUS

1.ATTORNEY AND CLIENT; MALPRACTICE; ABANDONMENT OF CASES. — Petitioner charges respondent counsel of abandonment in that he retired from the cases without the prior written consent of his client filed in court. This charge cannot prosper. First of all, respondent did not retire from the cases. Petitioner dismissed respondent and substituted him with another counsel. Secondly, the act of respondent in proposing to petitioner that another lawyer conduct the hearing of the cases did not amount to abandonment by respondent of said cases. On the contrary, it tended to show his interest in said cases, otherwise, he would not have proposed that another lawyer attend to the hearing of the cases in his absence.

2.ID.; ID.; CONVERSION OF SUMS OF MONEY ENTRUSTED TO COUNSEL. — Respondent asked and received from petitioner's family the sum of P500 allegedly to be used in filing the proper action in court to stay the auction sale of petitioner's property. The auction sale went on as scheduled and the property was sold to the highest bidder. It appears that respondent filed no motion with, and paid no money to, the court in order to stop or postpone the auction sale. The money was never returned to petitioner. On another occasion, petitioner solicited respondent's help in applying for an industrial loan with the Development Bank of the Philippines. Respondent not only did not file the application for loan but also did not pay to the bank the amount of P30.00 which petitioner gave him for filing fee. Said amount was likewise never returned to petitioner. Held: Respondent is guilty of malpractice. Considering that respondent never returned to petitioner the amounts involved, the presumption is that he appropriated the same for his own use to the prejudice of, and in violation of the trust reposed in him by, his client.

D E C I S I O N

BENGZON, J. P., J p:

Sixto L. Reyes, a member of the Philippine Bar, was legal counsel for the Manaloto family in the following cases during the period from October 1960 to July 1961: Criminal Case No. 376, People v. Eliseo Rigor, in the Justice of the Peace Court of Victoria, Tarlac; Civil Case

No. 3672, Belina Rigor, et al. v. Virginia P. Jimenez, in the Court of First Instance of Tarlac; Criminal Case No. 2508, People v. Virginia P. Jimenez, also in the Court of First Instance of Tarlac; and Civil Case No. 43248, Republic Savings Bank v. Belina Rigor, et al., in the Court of First Instance of Manila. He also undertook to help said family to secure a loan from the Development Bank of the Philippines. For his services, the Manaloto family allegedly paid him not less than P1,000.00 exclusive of travelling expenses. He, however, admits having received only a total of P590.00 and two sacks of rice as his fees in the above cases.

The Manaloto family consists of Belina Rigor, a widow, and her children, named Rosario, Adoracion, Jose and Maria Cristina, all surnamed Manaloto.

On October 13, 1961, Maria Cristina Manaloto instituted disbarment proceedings against Sixto L. Reyes for abandonment of the above-mentioned cases and conversion of sums of money entrusted to him by the petitioner and her sister, Rosario. This case was referred to the Solicitor General for investigation. After hearing the parties, disciplinary action was recommended by him against respondent. We now proceed to consider the charges.

"ABANDONMENT"

Criminal Case No. 376, People vs. Eliseo Rigor, and Criminal Case No. 2508, People v. Virginia P. Jimenez, were set for hearing on July 18, 1961 before the Justice of the Peace of Victoria, Tarlac and the Provincial Fiscal of Tarlac, respectively. In the evening of July 17, 1961 respondent Sixto L. Reyes informed petitioner herein that inasmuch as he was pre-occupied with the election campaign of congressional candidate Rellosa in the province of Laguna, he would entrust to Atty. Jacinto de los Reyes the hearing of the said cases. This proposal of respondent did not meet with petitioner's approval. Forthwith, petitioner requested, by telegram and telephone, for the postponement of the scheduled hearing.

Subsequently, petitioner verbally advised respondent that she intended to replace him with another lawyer. This, she did by retaining the services of Atty. Vicente Fernando as counsel in the aforesaid cases. Immediately thereafter, respondent delivered the papers pertaining to the cases to Atty. Fernando who requested for the same.

Since then he no longer attended to the said cases. However, he omitted to withdraw his appearance.

Petitioner charges respondent of abandonment for failure to observe the provision of Section 24, Rule 127 of the Rules of Court, in that he retired from the aforesaid cases without the prior written consent of his client filed in court.

This charge preferred by petitioner cannot prosper. First of all, respondent did not retire from the cases. Petitioner dismissed respondent and substituted him with Atty. Vicente Fernando. Secondly, the act of respondent in proposing to petitioner that Atty. Jacinto de los Reyes conduct the hearing of the cases scheduled for July 18, 1961, did not amount to abandonment by respondent of said cases. On the contrary, it tended to show his interest in said cases, otherwise, he would not have proposed that another lawyer attend to the hearing of the two cases in his absence. True, Atty. de los Reyes did not actually proceed to Victoria and Tarlac but it was because petitioner herself took steps to have the hearing postponed. Hence, there was actually no hearing to take care of.

"CONVERSION"

In Civil Case No. 43248, Republic Savings Bank v. Belina Rigor, et al., Belina Rigor's counsel was Atty. Manuel Domingo but when the former's property was about to be sold at public auction, her said counsel was in Tuguegarao, Cagayan. So, Belina Rigor sought the help of respondent for the purpose of stopping the sheriff from selling the property. In the morning of January 31, 1961 respondent asked and received from the Manaloto family the sum of P500.00 allegedly to be used in filing the proper action in court to stay the auction sale scheduled at ten o'clock in the same morning. Acting upon respondent's advice and assurance that the sale would be stopped, petitioner stayed at home on that day and did not anymore bother to check with the sheriff's office.

Later, petitioner was informed that, the assurances of respondent notwithstanding, the auction sale went on as scheduled and her mother's property was sold to the highest bidder. Upon inquiry with the clerk of court she further learned that respondent filed no motion with, and paid no money to, the court in order to stop or postpone the auction sale. The sum of P500.00 was never returned to her.

On another occasion, petitioner solicited respondent's help in applying for an industrial loan with the Development Bank of the Philippines. Later, she found out that respondent did not file the application for loan. Not only that, he did not pay to the bank the amount of P30.00 which she gave him for filing fee. Said amount was likewise never returned to her by respondent.

Respondent denies having received both sum of P500.00 and P30.00. Against this denial is the positive testimony of petitioner and her sister, Rosario. Although petitioner could not present any receipt signed by respondent therefor — for there was none — we have found her oral evidence sufficiently convincing. And, considering that respondent never returned to her the amounts involved, the presumption is that he appropriated the same for his own use to the prejudice of, and in violation of the trust reposed in him by, his client.

WHEREFORE, respondent Sixto L. Reyes is found guilty of malpractice and hereby suspended from the practice of law for a period of one year. Respondent is hereby ordered to return to petitioner the sum of P530.00 within 30 days from receipt of this decision. So ordered.

Bengzon, C.J., Bautista Angelo, Concepcion, Regala, Makalintal and Zaldivar, JJ., concur.

Reyes, J.B.L. and Dizon, JJ., took no part.

SECOND DIVISION

[G.R. No. L-39124. November 15, 1974.]

DON LINO GUTIERREZ & SONS, INC., petitioner, vs. HON. COURT OF APPEALS and JESUS ALVENDIA, respondents.

Rosendo J. Tansinsin for petitioner.

Rodolfo A. Espiritu for private respondent.

D E C I S I O N

AQUINO, J p:

In 1963 a judgment based on a compromise was rendered by the City Court of Manila in a case instituted by Don Lino Gutierrez & Sons, Inc. against Jesus Alvendia. In 1968 the said corporation again sued Alvendia in the City Court of Manila for the revival of the judgment. The City Court rendered a judgment in favor of Don Lino Gutierrez & Sons, Inc. Alvendia appealed to the Court of First Instance of Manila, which, after a trial de novo (there being no stenographic notes of the hearing in the City Court), affirmed the judgment of the City Court with some modifications in its decision dated June 5, 1973.

In all those proceedings, Alvendia's counsel of record was Escolastico Viola. The law firm of Baizas, Alberto & Associates, through Rodolfo A. Espiritu, collaborated with Attorney Viola. The copy of the decision was served on Viola and not on Baizas, Alberto & Associates.

Alvendia, through Viola, appealed by record on appeal to the Court of Appeals from the decision of the Court of First Instance of Manila. Viola and Rosendo J. Tansinsin, the lawyer of Don Lino Gutierrez & Sons, Inc., were advised by the Clerk of Court of the lower court in a notice dated February 20, 1974 that the record on appeal had been forwarded to the Court of Appeals.

In a letter dated February 26, 1974 the Court of Appeals notified Viola that the docket fee of forty-eight pesos and the legal research fee of five pesos should be paid within fifteen days from notice and that forty copies of the printed record on appeal should be filed within sixty days, with the warning that failure to do so would constitute an abandonment of the appeal and cause the dismissal thereof. Viola received that notice on February 28, 1974.

In view of Alvendia's failure to comply with that notice, the Court of Appeals in its resolution of May 3,1974 dismissed his appeal. A copy of that resolution was served upon Viola on May 8, 1974.

On June 26, 1974 or forty-nine days after the order of dismissal was served on Attorney Viola, Alvendia, through Rodolfo A. Espiritu of the Baizas law office, filed a motion for the reconsideration of that order on the ground that Viola had ceased to be Alvendia's counsel since September, 1973 and that Attorney Crispin D. Baizas had taken his place and it was allegedly agreed that the latter would handle Alvendia's appeal. The motion was verified by Alvendia and Viola and

was supported by their affidavits, the gist of which is that, due to the death of Attorney Baizas on January 16, 1974, Alvendia failed to follow up his appeal.

Viola in his affidavit admitted that he received on February 28, 1974 the notice to pay the docket fee and to file forty copies of the record on appeal but he allegedly "did not give any importance to it" because he was then no longer Alvendia's counsel and his impression was that the Baizas law office was also given a copy of that notification.

Don Lino Gutierrez & Sons, Inc. opposed the motion for reconsideration. It insisted that Viola was Alvendia's counsel of record for purposes of the appeal and that Baizas had never entered his formal appearance as Alvendia's counsel. It claimed that the resolution had already become final and that the Court of Appeals had no more jurisdiction over the case.

Furthermore, it argued that Alvendia had admitted in all his pleadings that he was indebted to Don Lino Gutierrez & Sons, Inc. in the amount stated in the judgment, which was originally rendered in 1963, and that Alvendia only claimed that he was not bound to pay that obligation.

The Court of Appeals, in its resolution of July 15, 1974, granted the motion and reinstated Alvendia's appeal. At that time the docket fee had already been paid. Later, the printed record on appeal was filed. The motion of Don Lino Gutierrez & Sons, Inc. for the reconsideration of the resolution of July 15, 1974 was denied.

On August 19, 1974 the said corporation filed in this Court a petition for certiorari and mandamus to set aside the resolution reinstating Alvendia's appeal and to compel the Court of Appeals to remand the record to the lower court for the execution of its final judgment.

We are of the opinion that the petition is meritorious.

The Rules of Court provides:

"SECTION 1.Grounds for dismissal of appeal. — An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee on the following grounds:

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d)Failure of the appellant to pay the docketing fee as provided in section 5 of Rule 46;

. . ." (Rule 50).

"SEC. 5.Duty of appellant upon receipt of notice. — It shall be the duty of the appellant, within fifteen (15) days from the date of the notice referred to in the preceding section, to pay to the clerk of the Court of Appeals the fee for the docketing of the appeal, and within sixty (60) days from such notice to submit to the court forty (40) printed copies of the record on appeal, together with proof of service of fifteen (15) printed copies thereof upon the appellee.

. . . ." (Rule 46).

"SEC. 2.Effect of dismissal. — Fifteen (15) days after the dismissal of an appeal, the clerk shall return to the court below the record on appeal with a certificate under the seal of the court showing that the appeal has been dismissed. . . ." (Rule 50).

The Court of Appeals did not err in motu proprio dismissing Alvendia's appeal for failure to pay on time the docket fee and to submit forty copies of his printed record on appeal (Alvero vs. De la Rosa, 76 Phil. 428, 434; Salaveria vs. Albindo, 39 Phil. 922; Dorego vs. Perez, L-24922, January 2, 1968, 22 SCRA 8).

Attorney Viola was negligent in not apprising Alvendia of the notice to pay the docket and legal research fees and to file forty copies of the printed record on appeal. Alvendia is bound by his lawyer's negligence (Robles vs. San Jose, 99 Phil. 658).

Viola was also negligent in not making a formal withdrawal as Alvendia's counsel and in not apprising the Court of Appeals that Baizas was supposedly appellant's new counsel. In the absence of a formal withdrawal, he continued to be Alvendia's counsel of record (Fojas vs. Navarro, L-26365, April 30,1970, 32 SCRA 476; Domingo, Jr. vs. Aquino, L-28078, April 29, 1971, 38 SCRA 472, 477). His alibi that it was his honest impression that the Baizas' law office was also notified by the Court of Appeals to pay the docket and legal research fees is flimsy because he could have easily ascertained from the notice itself that Baizas' name did not appear therein.

Moreover, "where a party is represented by two attorneys, the rule is that the notice may be made either upon both attorneys or upon one of them, regardless of whether they belong to the same law firm or are practising one independently of the other" (1 Moran, Comments on the Rules of Court, 1970 Ed. 423, citing Ortega vs. Pacho, 98 Phil. 618).

The death of Attorney Baizas was not a valid excuse on the part of his associates for not attending to Alvendia's appeal, supposing arguendo that his office was solely entrusted with the task of representing Alvendia in the Court of Appeals. Attorney Espiritu (not Attorney Baizas) was the one actually collaborating with Viola in handling Alvendia's case. He did not file a formal appearance in the Court of Appeals.

Under the environmental circumstances of this eleven-year-old litigation, it was a grave abuse of discretion on the part of the Court of Appeals to reinstate Alvendia's appeal and to relax the rule regarding dismissal of an appeal for appellant's failure to pay on time the docket and legal research fees and to file forty copies of his record on appeal within the sixty-day period (Cf. Chavez and Celeste vs. Ganzon and the Court of Appeals, 108 Phil. 6,10, and Urdaneta Rural Bank vs. San Juan, L-28346, June 29, 1968, 23 SCRA 1390).

It is necessary to impress upon litigants and their lawyers the necessity of a strict compliance with the periods for performing certain acts incident to the appeal and that transgressions thereof, as a rule, would not be tolerated; otherwise, those periods could be evaded by subterfuges and manufactured excuses and would ultimately become inutile.

Whether Alvendia's appeal by record on appeal is warranted under section 45 of the Judiciary Law as amended by Republic Act No. 6031, in relation to section 29 of the same law as amended by Republic Act No. 5433, is a point which we do not decide in this case. It was not raised by the petitioner. It suffices to note that, according to section 45, generally, the decision of the Court of First Instance in cases falling under the exclusive original jurisdiction of municipal and city courts, which are appealed to it, "shall be final".

WHEREFORE, the resolution of the Court of Appeals dated July 15, 1974, reinstating the appeal of respondent Jesus Alvendia, is set aside and its resolution of May 3, 1974, dismissing his appeal for failure to

pay the docket and legal research fees within the reglementary period, is affirmed with costs against him.

SO ORDERED.

Fernando (Chairman), Barredo, Antonio and Fernandez, JJ., concur.

 

EN BANC

[G.R. No. L-24163. April 28, 1969.]

REGINO B. ARO, petitioner, vs. THE HON. ARSENIO NAÑAWA, Presiding Judge of Branch IV, Court of First Instance of Laguna, LUIS MAGTIBAY, PABLO MAGTIBAY, AURELIA MARTINEZ, GREGORIO LONTOK, MARIA MENDOZA, MAXIMO PORTO and ROSARIO ANDAYA, respondents.

Regino B. Aro in his own behalf as petitioner.

Enrique C . Villanueva for private-respondents.

SYLLABUS

1.ATTORNEY-AT-LAW; ATTORNEY'S FEES; COMPROMISE ENTERED INTO BY CLIENT WITHOUT INTERVENTION OF LAWYER IS SUBJECT TO ATTORNEY'S FEES. — While We here reaffirm the rule that "the client has an undoubted right to compromise a suit without the intervention of his lawyer, We hold that when such compromise is entered into in fraud of the lawyer with intent to deprive him of the fees justly due him, the compromise must be subject to the said fees, and that when it is evident that the said fraud is committed in confabulation with the adverse party who had knowledge of the lawyer's contingent interest or such interest appears of record and who would benefit under such compromise, the better practice is to settle the matter of the attorney's fees in the same proceeding, after hearing all the affected parties and without prejudice to the finality of the compromise in so far as it does not adversely affect the rights of the lawyer.

2.ID.; ID.; ATTORNEY CANNOT BE DEPRIVED OF COMPENSATION UNLESS HE CONSENTS TO SETTLEMENT, COMPROMISE OR DISMISSAL OF THE CASE. — The client cannot, by settling, compromising, or dismissing his suit during its pendency, deprive the attorney of his compensation for the agreed amount, unless the lawyer consents to such settlement, compromise or dismissal, for the attorney is or "shall be entitled to have and recover from his client a reasonable compensation (not more) for his services, with a view to the importance of the subject matter of the controversy, the extent of the services rendered, and the professional standing of the attorney," albeit, under Canon 12 of the Canon of Professional Ethics, "in fixing fees, it should not be forgotten that the profession is a branch of the administration of justice and not a mere money-getting trade."

3.ID.; ID.; RECOVERY OF FULL COMPENSATION, REQUISITES. — True it is also that "a client may, at anytime, dismiss his attorney or substitute another in his place," (Sec. 26, Rule 138) but it must be emphasized that the same provision, which is an incorporation of Republic Act 636 into the Rules of Court, also provides that "if the contract between client and attorney had been reduced into writing and the dismissal of the attorney was without justifiable cause, he shall be entitled to recover from the client full compensation."

4.ID.; ID.; ID.; ID.; PETITIONER ENTITLED TO FULL COMPENSATION IN INSTANT CASE. — In the case at bar, by entering into the compromise agreement in question and even inserting therein a prayer to the court to dismiss the case filed by petitioner, petitioner's clients impliedly dismissed him. Such implied dismissal appears to Us to have been made without justifiable cause, none is urged anywhere in the record, and so Section 26, Rule 138 applies here. Hence, petitioner is entitled to recover the full compensation.

5.ID.; ID.; CLIENT IN INSTANT CASE HAS NO RIGHT TO WAIVE PORTION OR THEIR ACKNOWLEDGED RIGHT TO THE PREJUDICE OF THE LAWYER. — Through the services of petitioner, his clients secured, in effect, a recognition, which had been previously denied by their aunt-in-law, that they were entitled to a 1/4 share in the estate left by their uncle. We hold that under these circumstances, and since it appears that said clients have no other means to pay petitioner, since they instituted their case as paupers, and that their aunt-in-law was aware of the terms of their contract of professional services with petitioner, said clients had no right to waive the portion of their such acknowledged rights in favor of their opponent to the extent that such waiver would

prejudice the stipulated contingent interest of their lawyer and their aunt-in-law had no right to accept such waiver unqualifiedly.

6.ID.; ID.; ID.; GRAVE ABUSE OF DISCRETION BY THE COURT A QUO. — Considering that petitioner's clients were able to secure recognition of their right to 1/4 share in the estate of their deceased uncle and that their case was instituted as paupers and that these were presented to respondent judge before he issued the challenged order of dismissal and all the parties were heard thereon, it was incumbent upon His Honor, in equity and to avoid multiplicity of suits, particularly, because the amount claimed by petitioner is only P1,000.00 to have directly passed upon petitioner's claim, and not having done so, it would appear that the court a quo abused its discretion gravely enough to warrant the writ of certiorari herein prayed for in so far as the questioned order prejudiced petitioner's right to the fees for the professional services which appear to have been creditably rendered by him.

7.ID.; ID.; ID.; ORDER OF DISMISSAL BY RESPONDENT COURT IS NOT FINAL. — Respondents allege that the judgment of dismissal in question is already final because no appeal was taken therefrom, but since We hold that the same was rendered with enough grave abuse of discretion to warrant the certiorari prayed for, such alleged finality could not have materialized; obviously, petitioner could not have appealed, not being a party in the case.

D E C I S I O N

BARREDO, J p:

Original petition: (1) for certiorari to annul the order of the Court of First Instance of Laguna, dated November 21, 1964, dismissing its Civil Case No. SC-525 "without prejudice to the right of Atty. Regino B. Aro (petitioner herein) to file a separate action against both the plaintiffs and defendants (private respondents herein) with respect to his alleged attorney's fees," as well as its order dated January 9, 1965, denying petitioner's motion for reconsideration thereof for lack of merit and (2) for mandamus to compel respondent Judge to take cognizance of petitioner's opposition and counter-motion or petition dated November 3, 1964 and to resolve the same on the merits.

There appears to be no dispute as to the following facts alleged in the petition:

"2.That the services of herein petitioner, as practicing attorney, was engaged by respondents Luis Magtibay and Pablo Magtibay for the prosecution of their claim, as heirs, in the estate of their deceased uncle Lucio Magtibay, consisting of properties which were in the possession of the respondents Aurelia Martinez,1 spouses Gregorio Lontok and Maria Mendoza and spouses Maximo Porto and Rosario Andaya.

"3.That being without means to prosecute their claim against the persons concerned, respondents Luis Magtibay and Pablo Magtibay agreed with herein petitioner to avail of his services and entrust the prosecution of their claim on a contingent basis, as shown in the agreement, copy of which is hereto attached as Annex 'A' and is made an integral part hereof. 2

"4.That by virtue of said agreement, herein petitioner took the necessary steps to gather the needed papers and documents for the filing of a petition to litigate as pauper and a complaint in the Court of First Instance of Laguna, in which respondents Luis Magtibay and Pablo Magtibay were the plaintiffs and the other respondents, excepting the respondent Judge, were the defendants, . . .

"5.That said petition to litigate as pauper filed by herein petitioner for respondents Luis Magtibay and Pablo Magtibay was granted by the respondent Judge as per the order dated September 10, 1964, . . .

"6.That to plaintiffs' complaint in Civil Case No. SC-525, the defendants in said case interposed a motion to dismiss dated September 29, 1964, . . . 3

"7.That to the said motion to dismiss, herein petitioner, as attorney for the plaintiffs (now respondents Luis Magtibay and Pablo Magtibay) filed an opposition dated October 5, 1964, . . . 4

"8.That after the hearing of the motion to dismiss filed by the defendants and the opposition thereto by the plaintiffs, which finally took place on October 24, 1964, the respondent Judge issued its resolution or order dated October 24, 1964, denying the motion to dismiss, . . . 5

"9.That on the very day of and after the hearing of the motion to dismiss, or on October 24, 1964, before receipt of a copy of the said order (Annex 'G'), there was a conversation which took place between herein petitioner and the attorney of the defendants, Atty. Rustico de los Reyes, Jr., in the civil case and one who was then acting as a sort of spokesman for the defendants (Ex-mayor Cordova of Sta. Maria, Laguna) for the amicable settlement of the case between the plaintiffs and the defendants to the effect that a certain property of the spouses Lucio Magtibay (deceased) and respondent Aurelia Martinez, worth P3,000.00, would be given to the plaintiffs in full settlement of their claim, as share in the properties left by their deceased uncle Lucio Magtibay, if having been agreed by herein petitioner and Atty. de los Reyes and the spokesman of the defendants that for the purpose of said amicable settlement, the plaintiffs or one of them and herein petitioner would go to Sta. Maria, Laguna, on October 23, 1964.

"10.That having given notice to the plaintiffs (now respondents Luis Magtibay and Pablo Magtibay) at their given address in Calauag, Quezon to come to Candelaria for the purpose of going to Sta. Maria, Laguna on October 23, 1964, petitioner had waited for said plaintiffs to go to his office on or before said date for the engagement mentioned, but due to their (plaintiffs') failure to come to Candelaria, petitioner had to send a telegram to Ex-Mayor Cordova notifying him of his (petitioner's) and plaintiffs' not being able to go to Sta. Maria because of the failure of any of the plaintiffs to come to Candelaria,. . .

"11.That it was only on October 28, 1964, when herein petitioner receive a copy of the order dated October 24, 1964 (Annex 'G') and to his surprise he also received on the said day a second motion to dismiss dated October 26, 1964, together with Annex 'A' of said motion, which is entitled KASULATAN NG PAGHAHATIAN NA LABAS SA HUKUMAN AT PAGPAPALABI, dated October 23, 1964 at Sta. Cruz, Laguna and signed by the plaintiffs and defendant Aurelia Martinez (the three being now respondents in this case), it having been made to appear in said Annex 'A' of the second motion to dismiss, among others, that the plaintiffs and defendant Aurelia Martinez had made an extrajudicial partition of the properties of the deceased Lucio Magtibay and the said Aurelia Martinez adjudicating to the plaintiffs one-fourth (1/4) share in the properties of the spouses and three-fourth (3/4) share of the defendant Aurelia Martinez, but making it appear also that said plaintiffs waived their share

in favor of Aurelia Martinez, . . ., thru which fraudulent waiver, herein petitioner was deprived of his contingent fees, agreed upon, as evidenced by Annex 'A' of this petition. 6

 

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"14.That petitioner filed by registered mail, on November 4, 1964, his 'OPPOSITION TO THE SECOND MOTION TO DISMISS AND COUNTER- MOTION OR PETITION TO SET ASIDE DEED OF EXTRAJUDICIAL PARTITION AND WAIVER DATED OCTOBER 23, 1964 AND TO RECORD ATTORNEY'S LIEN,' dated November 3, 1964, wherein he (petitioner) prayed, among others, invoking the provisions of Section 5(d) and Section 6, Rule 135 of the Revised Rules of Court, for the protection of the rights of herein petitioner as an officer of the Court, to wit:

'(a)to deny the second motion to dismiss and set aside and annul the deed of extrajudicial partition and waiver dated October 23, 1964;

'(b)to fix the compensation of herein counsel in the proportion of one-third (1/3) of the shares of plaintiffs, if in land, or in the amount of P1,000.00, if in cash, and to record the same and expenses advanced by him for the plaintiffs in the sum of P22.15 as lien in favor of herein claimant-petitioner over the properties in litigation, particularly over the one-fourth (1/4) share of the plaintiffs in all the properties of the spouses;

xxx xxx xxx

'(d)as an alternative to prayer (a) above, to grant the second motion to dismiss, subjecting, however, the properties in litigation and subject-matters of the extrajudicial partition and waiver to the lien for attorney's fees and expenses in favor of herein claimant- petitioner, after fixing said attorney's fees, as prayed for in (b) above.

xxx xxx xxx

"15.That on the day finally set for the hearing of the second motion to dismiss, as well as of the counter-motion or petition, or on November 21, 1964, because of the inquiries or

interpellation made by respondent Judge to herein petitioner as to whether there is a Philippine precedent which allows or directs the protection by the Court of the rights of any of its officers (lawyer) against any collusion perpetrated by the parties in a case to defraud or cheat an attorney of his compensation agreed upon by him and his clients, and his answer that insofar as his researches were concerned, he could not find any, although there are a number of cases to that effect in American jurisdiction, the respondent Judge had opined in open court that the claim for and the fixing of the attorney's fees should better be done in a separate action and, in spite of petitioner's memorandum citing American authorities to the effect that,

'Though a party may without the consent of his attorney make a bona fide adjustment with the adverse party and dismiss an action or suit before a judgment or a decree has been rendered thereon, if it appears, however, that such settlement was collusive and consummated pursuant to the intent of both parties to defraud the attorney, the court in which the action was pending may interfere to protect him as one of its officers, by setting aside the order of dismissal, . . .' (Jackson vs. Stearns, 48 Ore. 25, 84 Pac. 798)

. . . the respondent Judge, instead of denying the second motion to dismiss and fixing his attorney's fees in the said case and recording the same as lien, .. dismissed the case and refused to give herein petitioner any kind of immediate protection to safeguard his rights .. in said Civil Case No. SC-525 of the Court of First Instance of Laguna.

"16.That by the express terms of the agreement, Annex 'A' of this petition, plaintiffs in Civil Case No. SC-525 had expressly ceded to herein petitioner one-half (1/2) [later verbally reduced to one- third (1/3) or P1,000.00] or whatever share they would get from the estate of their deceased uncle Lucio Magtibay, and the defendants in said Civil Case had full knowledge of said right of herein petitioner in the properties in controversy from and after the time they were served with summons and copies of the complaint in said civil case — because of the allegations contained in par. 10 thereof. 7 [Emphasis supplied]

"18.That on December 5, 1964, herein petitioner filed his motion for reconsideration dated December 4, 1964 asking for the reconsideration of the order dated November 21, 1964, . . .

"19.That the motion for reconsideration was denied by the court, thru the respondent Judge, as per the order dated January 9, 1965, . . ."

Upon these facts, petitioner tries to make out before this Court a case of certiorari for grave abuse of discretion on the part of respondent Judge in dismissing the case on the basis of the compromise agreement of the parties, entered into at the back of petitioner, notwithstanding the reservation made in his favor to file an action against both parties "with respect to his alleged attorney's fees," as well as a case of mandamus "to order and command the said respondent judge" to take cognizance of and resolve his opposition and counter- motion for the court to fix the compensation he should be paid. Unable to find any local precedent to support his position, he cites American authorities thus:

"In the American jurisdiction, it would seem that, even without the specific provisions of the rules of court cited above, courts had always intervened, in the mere exercise of their inherent powers, to protect attorneys against collusive agreements or fraudulent settlements entered into by the parties in a case to cheat attorneys out of their costs or of their fees. Thus, it was held or had been stated in:

"(a)Coughlin v. N.Y. Cont. & H.R.R. Co., 71 N.Y. 443, 27 Am. Rep. 75.

'. . . But since the time of Lord Mansfield, it has been the practice of courts to intervene to protect attorneys against settlement made to cheat them out of their costs. If an attorney has commenced an action, and his client settles it with the opposite party before judgment, collusively, to deprive him of his costs, the court will permit the attorney to go on with the suit for the purpose of collecting his costs. Swain v. Senate, 5 Bos. & Pul. 99; Cole v.Bennett, 6 Price, 15; Moore v. Cook, 13 id., 473; Talcott v. Bronson, 4 Paige, 501; Rusquin v. The Knickerbocker Stage Col., 12 Abb. Pr. 324; Ward v.Syme, 9 How. Pr. 16; McDonald v. Napier, 14 Ga. 89.

'There are many cases where this had been allowed to be done. It is impossible to ascertain precisely when this practice commenced, nor how originated, nor upon what principle it was based. It was not upon the principle of a lien, because an attorney has no lien upon the cause of

action before judgment for his costs; nor was it upon the principle that his services had produced the money paid his client upon the settlement, because that could not be known, and in fact no money may have been paid upon the settlement. So far as I can perceive, it was based upon no principle. It was a mere arbitrary exercise of power by the courts; not arbitrary in the sense that it was unjust or improper, but in the sense that it was not based upon any right or principle recognized in other cases. The parties being in court, and a suit commenced and pending, for the purpose of protecting attorneys who were their officers and subject to their control, the courts invented this practice and assumed this extraordinary power to defeat attempts to cheat the attorneys out of their costs. The attorney's fees were fixed in definite sums, easily determined by taxation and this power was exercised to secure them their fees.' (pp. 76-77)

"(b)Randall v. Van Wagenan et al., 22 N.E. 361, 362.

'. . . But where such settlement is made collusively for the purpose of defrauding the attorney out of his costs, courts have been accustomed to intervene, and to protect the attorney by permitting him to proceed with the suit, and, if he is able to establish a right to recover on the cause of action as it originally stood, to permit such recovery to the extent of his costs in the action. Coughlin v. Railroad Co., 71 N.Y. 443, and cases cited. And the court will set aside an order of discontinuance if it stands in the way. This is an adequate remedy, and we think the exclusive remedy where the suit has been fraudulently settled by the parties before judgment to cheat the attorney out of his costs. We have found no case of an equitable action to enforce the inchoate right of an attorney under such circumstances, and no such precedent ought, we think, to be established.'

"(c)Jackson v. Stearns, et al., 43 Ore. 25, 84 Pac. 798.

'. . . Though a party may, without the consent of his attorney, make a bona fide adjustment with the adverse party, and dismiss an action or suit before a judgment or a decree has been rendered therein, if it appears, however, that such settlement was collusive and consummated pursuant to the intent of both parties to defraud the attorney, the court in which the action or suit

was pending may interfere to protect him, as one of its officers, by setting aside the order of dismissal and permitting him to proceed in the cause in the name of his client to final determination to ascertain what sum of money, or interest in the subject-matter, if any, is due him for his services when fully performed. Jones v. Morgan, 99 Am. Dec. 458; Randall v. Van Wagenen (N.Y.) 22 N.E. 361, 12 Am. St. Rep. 828.' (p. 800)

'Before a court will set aside an order dismissing a suit or an action, made upon stipulation of the parties, without the consent of plaintiff's attorney, and allow the latter to proceed with the cause in the name of his client, to determine the amount of fees due him, it must appear that the defendant participated in the fraudulent intent to deprive the attorney of his compensation. Courtney v. McGavok, 25 Wis. 619. When no adequate consideration is given by the defendant for the settlement and discharge of an action or a suit, the insufficiency of the inducement to the contract affords evidence of his bad faith. Young v. Dearborn, 27 N.E. 324. It will be remembered that the complaint alleges that the value of the real property in question is $3,000.00, and that Stearns executed to Wilson a deed to the premises for a nominal consideration. This is a sufficient averment of the defendants intent to deprive the plaintiff of his compensation thereby imputing to Wilson bad faith.' (p. 800).

 

"(d)Desaman v. Butler Bros., 118 Minn. 198, 136 N.W. 747.

'We have recently held that a client has always the right to settle his cause of action and stop litigation at any stage of the proceeding, subject, however, to the right of the attorney to receive compensation for services rendered. Burho vs. Camichael, 135 N.W. 386. It is therefore contended by defendant that a litigant retains the unrestricted right to determine for what amount the cause of action may be settled, and, having so done, the lien of his attorney for services is measured by the amount determined on and actually settled for. Conceding, without deciding, that this may be true at any time prior to the rendition of a verdict in the action which

the attorney has been employed to bring, we are of opinion that after verdict fixing the amount of a plaintiff's cause of action a secret and collusive compromise between parties litigant does not affect the amount of the attorney's lien..; but therein is also clearly indicated by Mr. Justice Brown that, if there be fraud and collusion to deprive the attorney of his lien, the settlement will not be permitted to accomplish such result.' (p. 748).

To be sure, these authorities are quite persuasive, but contrary to petitioner's impression, there is already a precedent setting decision of this Court handed down way back in 1922 in a case very similar to his, that in Rustia vs. the Judge of First Instance of Batangas, et als., 44 Phil. 62. As it is very brief, it can be quoted in full:

"This is a petition for a writ of certiorari, the petitioner alleging that the respondent Judge of the Court of First Instance exceeded his jurisdiction in dismissing a pending action at the instance of the parties but without the intervention of the attorney for the plaintiff in the case, the herein petitioner.

"It appears from the record that on July 31, 1921, the respondent Justo Porcuna, for himself and on behalf of his wife, the respondent Rosa H. de Porcuna, by means of a written contract, retained the petitioner to represent them as their lawyer in case No. 1435 then pending in the Court of First Instance of Batangas and in which Rosa H. de Porcuna was the plaintiff and one Eulalia Magsombol was the defendant. The contract fixed the petitioner's fee at P200 in advance with an additional contingent fee of P1,300. It was also provided in the contract that Justo Porcuna should not compromise the claim against the defendant in the case without express consent of his lawyer, the herein petitioner.

"After trial, the petitioner then being plaintiff's attorney of record, the Court of First Instance, under date of December 24, 1921, rendered judgment in favor of Justo Porcuna and Rosa H. de Porcuna ordering the defendant Eulalia Magsombol to return to them 602 pieces of cloth or in default thereof to pay to them the sum of P3,250. On January 14, 1922, Eulalia Magsombol filed her exception to the judgment and on the following day presented a motion for a new trial, which was denied on the 21st of the same month. She thereupon gave notice of appeal and presented a bill of exceptions which was approved on February 20, 1922. On March 2, 1922, and before the

transmission of the bill of exceptions to the court, the plaintiffs presented the following motion in the Court of First Instance:

'The plaintiffs, without any further intervention of their attorney, now appear before this Honorable Court and respectfully aver:

'That, through Mr. Miguel Olgado, they already settled this case with the herein defendant.

'That the basis of the compromise is that we, the plaintiffs, finally agree that we should be paid the amount of eight hundred pesos (P800) in two installments; P300 to be paid on this same date, and the remaining five hundred pesos (P500) at the end of March, 1922.

'That we, the plaintiffs, recognize not to have any further rights in this case than to the aforesaid amount of eight hundred pesos (P800) and that this is the total amount the defendant Eulalia Magsombol should pay us, and we have no right whatever to any other amount than the aforementioned.

'That we have not sold to any other person our rights as plaintiffs in this case.

'Wherefore, the plaintiffs respectfully request the dismissal of this case, without any pronouncement as to costs, and that the appeal interposed by the defendant be further dismissed.

'Batangas, Batangas, P.I., March 2, 1922.

'(Sgd) ROSA H. PORCUNA

Plaintiff

JUSTO M. PORCUNA

Plaintiff'

"The defendant, through her attorney, Jose Mayo Librea, having signified her assent to the motion, the Court of First Instance on the same day, March 2, dismissed the action without notice to counsel for the plaintiffs.

"The petitioner alleges that he did not discover the dismissal of the action until April 4, 1922. After an unsuccessful effort to

obtain a reconsideration of the order of dismissal from the trial court, he filed the present petition for a writ of certiorari. By resolution dated October 24, 1922, this Court denied the petition and upon motion of the petitioner we shall now briefly state our reasons for such denial.

"The burden of the petitioner's contention is (1) that he, as attorney of record, was entitled to notice of his client's motion to dismiss the case, and (2) that after the approval of the bill of exceptions the lower court has lost jurisdiction of the case and had no power to dismiss it. A moment's reflection should make it clear that neither of these propositions is tenable.

"Both at the common law and under Section 32 of the Code of Civil Procedure a client may dismiss his lawyer at any time or at any stage of the proceedings and there is nothing to prevent a litigant from appearing before the court to conduct his own litigation. (Sec. 34, Code of Civil Procedure.) The client has also an undoubted right to compromise a suit without the intervention of his lawyer.

'Though there is a valid agreement for the payment to the attorney of a large proportion of the sum recovered in case of success, this does not give the attorney such an interest in the cause of action that it prevents plaintiff from compromising the suit.' (4 Cyc. 990, and authorities cited in Note 6; see also Louque vs. Dejan, 129 La. 519; Price vs. Western Loan & Savings Co., 19 Am. Cas. 589 and Note.).

"In the present instance the clients did nothing that they did not have a perfect right to do. By appearing personally and presenting a motion they impliedly dismissed their lawyer. The petitioner's contingent interests in the judgment rendered did not appear of record. Neither as a party in interest nor as an attorney was he therefore entitled to notice of the motion.

"As to the second proposition that the court below could not dismiss the case after the bill of exceptions had been approved, it is very true that upon such approval the lower court loses its jurisdiction over all contentious matters connected with the issues in the case. But there is nothing to prevent all of the parties by agreement to withdraw the bill of exceptions with the consent of said court and resubmit the case to the jurisdiction of the court. That was all that was done in this case. A valid agreement between the parties to a case is the law of

the case in everything covered by the agreement. (Civil Code, Art. 1091; Compaña General de Tabacos vs. Obed, 13 Phil. 391.) The petitioner might have protected his interests by entering an attorney's lien under Section 37 of the Code of Civil Procedure.

"The petition for a writ of certiorari was therefore properly denied. So ordered."

The difference We perceive, however, between petitioner's case, on the one hand, and that of Atty. Rustia, in the above decision, on the other, is that in the latter's case, neither the court nor the party adverse to his clients were aware of the exact agreement as to his fees, whereas in the case of petitioner, both the court and the other parties knew the terms of the contract for professional services between petitioner and his client, the Magtibay brothers, because the written contract therefor, Annex A, was made part of the complaint, and none seriously disputes its authenticity. Besides, the court had already dismissed the case when Atty. Rustia raised the question of his fees before the court; in petitioner's instance, he opposed the motion to dismiss and pleaded with the court to protect his rights as officer of the court before the first order in question was issued by respondent judge. Were it not for these differences, We would have inclined towards denying the herein petition in line with the Rustia ruling that, in any event, certiorari is not the appropriate remedy, the American authorities cited by petitioner notwithstanding.

Withal, there is another Philippine case which moves Us to sustain petitioner. In the case of Recto vs. Harden, 100 Phil. 440, Atty. Claro M. Recto found himself practically in the same situation as petitioner herein. After Atty. Recto had rendered services to Mrs. Esperanza P. de Harden in a protracted suit against her husband for the purposes of securing an increase of her and her daughter's monthly support, (the spouses were separated), to P10,000.00 and of protecting and preserving her rights in the properties of the conjugal partnership, which suit lasted from 1941 to 1949, and after the Court of First Instance of Manila had rendered a judgment favorable to Mrs. Harden acknowledging, inter alia, her rights to the assets of the conjugal partnership, which turned out to be P4,000,000, and awarding her a monthly support of P2,500, practically as prayed for in Atty. Recto's pleadings, while the case was already pending on appeal before this Court, Mrs. Harden and her husband, Mr. Fred Harden, entered into a compromise of their case, without the knowledge of Atty. Recto,

whereby said spouses "purportedly agreed to settle their differences in consideration of the sum of P5,000 paid by Mr. Harden to Mrs. Harden, and a monthly pension of $500 to be paid by him to her; (2) Mr. Harden had created a trust fund of $20,000 from which said monthly pension of $500 would be taken; and (3) Mr. and Mrs. Harden had mutually released and forever discharged each other from all actions, debts, duties, accounts, demands and claims to the conjugal partnership, in consideration of the sum of $1." (p. 435).

 

Whereupon Atty. Recto filed a motion with this Court praying that:

"a)Pending the resolution of this motion, the receiver appointed herein be authorized to continue holding the properties above mentioned in his custody in order not to defeat the undersigned's inchoate lien on them;

"b)A day set aside to receive the evidence of the undersigned and those of the plaintiff and the defendant Fred M. Harden, in order to determine the amount of fees due to the undersigned, by the appointment of a referee or commissioner for the reception of such evidence;

"c)After due hearing, the undersigned be declared entitled to the sum of P400,000 as his fees for services rendered in behalf of the plaintiff in this case, under paragraph 3 of the contract, Annex 'A', and to that end a charging lien therefore be established upon the properties above-mentioned;

"d)And the receiver be ordered to pay to the undersigned the full amount of the fees to which the latter is found to be entitled."

This motion was objected to by Mr. Harden's counsel, who in turn, moved for the dismissal of the case, to which Atty. Recto objected. Under these circumstances, this Court acceded to Atty. Recto's prayer that the case be not dismissed, that the receivership be maintained except as to certain properties not material to mention here, and that the case be remanded to the lower court so that his fees may be determined and ordered paid. Upon the remand of the case to the lower court, a commissioner was appointed to hear the matter of the amount of the fees in question, and after the commissioner had submitted a report recommending the payment to Atty. Recto of the

20% attorney's fees stipulated in the contract for his services, equivalent to P369,410.04, the court rendered judgment as follows:

"The contingent fee to which the claimant is entitled under paragraph 3 of the contract, Exhibit JJJ or 20, is 20% of P1,920,554.85 or the sum of P384,110.97.

"WHEREFORE, this Court hereby approves the recommendation of the Commissioner with the above-stated modification, and finds that Attorney Claro M. Recto is entitled to the sum of THREE HUNDRED EIGHTY-FOUR THOUSAND ONE HUNDRED AND TEN PESOS AND NINETY-SEVEN CENTAVOS (P384,110.97), representing 20% of Esperanza P. de Harden's share in the conjugal properties owned by her and her husband, Fred M. Harden, as contingent fee stipulated in paragraph 3 of the Contract of Professional Services, Exhibit JJJ or 20, and the said Esperanza P. de Harden is hereby ordered to pay the said amount above-stated."

On appeal from this judgment to this Court, the same was affirmed, the decision stating pertinently in part:

"The last objection is based upon principles of equity, but, pursuant thereto, one who seeks equity must come with clean hands (Bastida, et al., vs. Dy Buncio & Co., 93 Phil 195; 30 C.J.S. 475), and appellants have not done so, for the circumstances surrounding the case show, to our satisfaction, that their aforementioned agreements, ostensibly for the settlement of the differences between husband and wife, were made for the purpose of circumventing or defeating the rights of herein appellee, under his abovequoted contract of services with Mrs. Harden. Indeed, having secured a judgment in her favor, acknowledging her rights to the assets of the conjugal partnership, which turned out to be worth almost P4,000,000 in addition to litis expensae in the sum of P175,000, it is inconceivable that Mrs. Harden would have waived such rights, as well as the benefits of all orders and judgments in her favor, in consideration of the paltry sum of $5,000 allegedly paid to her by Mr. Harden and the additional sum of $20,000 to be paid by him in installments, at the rate of $500 a month. In fact, no explanation has been given for this most unusual avowed settlement between Mr. and Mrs. Harden. One can not even consider the possibility of a reconciliation between the spouses, the same being inconsistent with the monetary consideration for said alleged settlement. What is more, the records show

that the relations between said spouses — which were bad indeed, not only in July, 1941, when Mrs. Harden engaged the services of the appellee, but, even, before, for Mr. and Mrs. Harden were separated since 1938 — had worsened considerably thereafter, as evidenced by an action for divorce filed by Mr. Harden in New Jersey, in July 1943, upon the ground of repeated acts of infidelity allegedly committed by Mrs. Harden in 1940 and 1941."

On the same consideration of equity, and for the better protection of lawyers, who, trusting in the good faith of their clients, render professional services on contingent basis, and so that it may not be said that this Court sanctions in any way the questionable practice of clients of compromising their cases at the back of their counsel with the consequence that the stipulated contingent fees of the lawyer are either unreasonably reduced or even completely rendered without basis, as in this case — wherein the clients waived the whole of their rights in favor of their opponent after the latter had acknowledged, in effect, the correctness of said clients' contention — We have decided to grant the herein petition, in so far as the rights of petitioner have been prejudiced by the questioned compromise agreement. While We here reaffirm the rule that "the client has an undoubted right to compromise a suit without the intervention of his lawyer," 8 We hold that when such compromise is entered into in fraud of the lawyer, with intent to deprive him of the fees justly due him, the compromise must be subject to the said fees, and that when it is evident that the said fraud is committed in confabulation with the adverse party who had knowledge of the lawyer's contingent interest or such interest appears of record and who would benefit under such compromise, the better practice is to settle the matter of the attorney's fees in the same proceeding, after hearing all the affected parties and without prejudice to the finality of the compromise in so far as it does not adversely affect the rights of the lawyer. Surely, "the client cannot, by settling, compromising or dismissing his suit during its pendency, deprive the attorney of his compensation for the agreed amount, unless the lawyer consents to such settlement, compromise or dismissal," (Legal and Judicial Ethics by Martin, 1967 Rev. Ed., p. 121) for the attorney is or "shall be entitled to have and recover from his client — a reasonable compensation (not more) for his services, with a view to the importance of the subject-matter of the controversy, the extent of the services rendered, and the professional standing of the attorney," (Sec. 24, Rule 138, on Attorney and Admission to Bar) albeit, under Canon 12 of the Canons of Professional Ethics, "in fixing fees, it should not be

forgotten that the profession is a branch of the administration of justice and not a mere money-getting trade."

True it is also that "a client may, at anytime, dismiss his attorney or substitute another in his place," (Sec. 26, Rule 138) but it must be emphasized that the same provision, which is an incorporation of Republic Act 636 into the Rules of Court, also provides that "if the contract between client and attorney had been reduced to writing and the dismissal of the attorney was without justifiable cause, he shall be entitled to recover from the client full compensation . . ." In the case at bar, by entering into the compromise agreement in question and even inserting therein a prayer to the court to dismiss their case filed by petitioner, (see footnote 6, ante) petitioner's clients impliedly dismissed him. (Rustia vs. the Court etc. supra.) Such implied dismissal appears to Us to have been made without justifiable cause, none is urged anywhere in the record, and so, the abovequoted provision of Section 26, Rule 138 applies here. The terms of the compromise in question, as spelled out in Annex A of Annex I of the petition, indicate clearly that Aurelia Martinez, the defendant aunt-in-law of petitioner's clients, acknowledged that the rights of said clients were practically as alleged by petitioner in the complaint he filed for them. In other words, through the services of petitioner, his clients secured, in effect, a recognition, which had been previously denied by their aunt-in-law, that they were entitled to a 1/4 share in the estate left by their uncle. We hold that under these circumstances, and since it appears that said clients have no other means to pay petitioner, since they instituted their case as paupers, and that their aunt-in-law was aware of the terms of their contract of professional services with petitioner, said clients had no right to waive the portion of their such acknowledged rights in favor of their opponent to the extent that such waiver would prejudice the stipulated contingent interest of their lawyer and their aunt-in- law had no right to accept such waiver unqualifiedly. The Civil Code enjoins that:

"ARTICLE 19.Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith."

Under the circumstance extant in the record, it is clear that the compromise agreement in question falls short of the moral requirements of this quoted article of the Civil Code. If for this reason alone, it should not be allowed to prejudice the rights of petitioner. Accordingly, as all of these circumstances were presented to

respondent judge before he issued the challenged order of dismissal and all the parties were heard thereon, it was incumbent upon His Honor, in equity and to avoid multiplicity of suits, particularly, because the amount claimed by petitioner is only P1,000.00, to have directly passed upon petitioner's claim, and not having done so, it would appear that the court a quo abused its discretion gravely enough to warrant the writ of certiorari herein prayed for in so far as the questioned orders prejudiced petitioner's right to the fees for the professional services which appear to have been creditably rendered by him. Respondents allege that the judgment of dismissal in question is already final because no appeal was taken therefrom, but since We hold that the same was rendered with enough grave abuse of discretion to warrant the certiorari prayed for, such alleged finality could not have materialized; obviously, petitioner could not have appealed, not being a party in the case.

 

IN VIEW OF THE FOREGOING, the orders of the respondent court dated November 21, 1964 and January 9, 1965 in Civil Case No. SC-525 are hereby set aside in so far as they prejudice the payment of petitioner's claim of attorney's fees in the form of either one-third of the 1/4 share acknowledged as his clients in the compromise in question or P1,000.00, which should constitute as a lien on the said share, in spite of the waiver thereof in favor of respondent Aurelia Martinez. It is unnecessary to consider the petition for mandamus. Costs against private respondents.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Fernando and Teehankee, JJ ., concur.

Concepcion, C .J ., and Castro, J ., are on leave.

Capistrano, J ., did not take part.

EN BANC

[G.R. No. L-16349. January 31, 1964.]

IN RE TESTATE ESTATE OF DOÑA GABINA RAQUEL. VICENTE J. FRANCISCO, petitioner-appellee, vs. AUREA MATIAS, oppositor-appellant.

Vicente J . Francisco in his own behalf as petitioner-appellee.

J .Gonzales Orense and Ricardo N . Agbunag for oppositor-appellant.

SYLLABUS

1.ATTORNEYS FEES; CONTINGENT FEE; 12.5% OF MARKET VALUE OF ESTATE IN PROBATE CASE. — Considering the circumstances and the previous rulings of the Court on contingent lawyer's fees, 12.5% of the market value of the probate estate is deemed reasonable in the case at bar.

2.ID.; WHEN CHARGEABLE AGAINST ESTATE. — Having charged the estate for the attorney's fees paid by her, the executrix is estopped from denying representative capacity in contracting the services of said attorney.

3.ID.; BASIS; "QUANTUM MERUIT " DESPITE CONTRACT. — Although a written contract for attorney's fees had been made, quantum meruit became the issue, because the lawyer had been misled as to the value of the estate, and the parties had practically agreed to debate the question of reasonable value of the lawyer's services.

4.ID.; ID.; CIRCUMSTANCE THAT LEGATEE WOULD HAVE RECEIVED NOTHING. — In fixing contingent attorney's fees, the Court considered that had the will been disallowed, appellant and the other legatees would have received nothing.

5.ID.; NATURE AND EXTENT OF SERVICES RENDERED. — In determining the nature and extent of the attorney's services, the Court considered the complicated questions involved, the extensive research made, the witnesses interviewed, the period of the trial, the documents presented, the voluminous transcript of stenographic notes, the motions filed, and the difficult labor to secure a reversal of unfavorable judgment.

6.ID.; APPEALS; WEIGHT OF LOWER COURT'S SOLUTION ON APPELLATE JUDGING. — The appellate court, in "revising" the attorney's fees set by the lower court, works under the restraint of the doctrinal injunction to yield to its solution in so far as possible.

D E C I S I O N

BENGZON, C.J p:

Statement. — Aurea Matias has appealed from the resolution of the Cavite Court of First Instance fixing the professional fees of Atty. Vicente J. Francisco at 25% of the current market value of the estate left by the deceased Gabina Raquel. The relevant facts are these:

Material Facts. — In May, 1952, she filed in this expediente, thru Atty. R. N. Agbunag, a petition for the probate of the will of said Gabina Raquel. The petition was in due time, opposed by Basilia Salud, — first cousin of Gabina — on the grounds that: (1) the will was not signed by the deceased; (2) it was not executed in accordance with law; (3) Gabina had been the victim of undue influence and fraud; and (4) the deceased had no mental capacity to make a testament.

On July 16, 1952, said Aurea Matias — named as executrix in the will — engaged the services of Atty. Vicente Francisco, who, with the assistance of Atty. Agbunag and of Attorneys Alberto J. Francisco and J. Gonzales Orense, personally handled the case before three different judges — successively.

The written contract for services signed on the date above- mentioned by both Atty. Francisco and Aurea Matias reads as follows:

R E C E I P T

"RECIBI de la Srta. Aurea Matias la cantidad de cinco mil (P5,000.00) pesos acuenta de los honorarios convenidos de veinte mil (P20,000.00) pesos, bajo las siguientes condiciones: si se gana el asunto la señorita Aurea Matias me pagara el saldo de quince mil (P15,000.00) pesos y que cada dia de vista en que yo comparezca me pagara doscientos pesos. Mis servicios se limitan a la legalizacion del testamento de la difunta Dña. Gabina Raquel."

After more than thirty hearings and thirty-two scheduled hearings — which started in August 1952, 1 and continued on until November 1955 — Judge Primitivo L. Gonzales rendered — in February, 1956, — a decision denying the probate of the will. However, on appeal to this Court, Aurea Matias obtained a reversal of the judgment, the

authenticity and due execution of the will having been upheld (June 1958). Her brief as appellant here — 284 printed pages — was prepared and signed by Atty. Vicente Francisco, although in the name of the four lawyers.

Petition for fees. — After the decision of this Court had become final, said attorney filed on October 7, 1958, in the Cavite court, in this testate proceeding, motion to fix his attorney's fees on the basis of quantum meruit. He alleged, among other things, that the Supreme Court had approved the probate of the will of Gabina Raquel, that he had agreed to receive a contingent fee of P15,000.00 under his erroneous belief, due to misrepresentations of Aurea Matias, that Gabina Raquel had left properties worth only P167,000.00; that he learned, after the decision of the Supreme Court that the said properties actually amounted to much more than that sum; and that, consequently, he was not bound by his agreement to receive a contingent fee of P15,000.00 only. Atty. Francisco prayed that his compensation be fixed at 30% of the market value of the estate.

Objections. — Resisting this motion, Aurea Matias averred that appellee was only one of the four attorneys engaged by her to secure the probate of the will; that she had a written contract for attorney's fees — as above described; that Francisco had already received the amount of P5,000.00 on July 16, 1952, plus a total sum of P6,000.00 for all his appearances in court at P200.00 per day; that inasmuch as there was a written contract for attorney's fees, such contract should prevail; that the estate was worth around P246,329.25 only; that appellee had all the time to investigate — but did not — the value of the property under litigation, and to question the inadequacy of his fees under the contract; that the value of the estate did not warrant the payment of fees greater than that stipulated in the contract.

Consequently, she requested the court to approve the attorney's fees as determined in the said contract and to note the unpaid balance of P15,000.00 as a lien upon the estate.

Motion pendente-lite. — On February 10, 1959, Francisco filed another motion praying that, without prejudice to his aforesaid petition to fix his fees, Aurea Matias be ordered to make immediate payment of the sum of P15,000.00. Appellant interposed seasonable objection thereto.

Hearing. — During the hearing of these motions, the trial judge made the following observations:

"The Court has read very carefully the answer of Atty. Orense (for Aurea Matias) and it gets the impression that his theory is that the amount of P15,000 which still remains unpaid is even excessive and exorbitant. If that be the case, it appears that the question now before the Court is: Should it order the payment of the sum of P15,000 without further proof? Atty. Orense is disputing the reasonableness of that amount; naturally enough, the other party has the right to prove that the amount is not only inadequate but that he is entitled to more for the value of his services. In other words, the issue now is: What is the reasonable amount of attorney's fees of the petitioner for the services he has rendered?"

Thereafter, he denied appellee's motion for immediate payment of the unpaid portion (P15,000) until proof shall have been adduced of the reasonable value of his professional services on the basis of quantum meruit.

So, in deciding the main petition in view of the testimonial and documentary evidence, it brushed aside, as immaterial, the alleged misrepresentation in the making of the written contract, — since "reasonable amount" had become the real issue.

Resolution fixing fee. — In determining the amount of compensation, the Cavite court paid particular attention and made a detailed account of "the extent of the services rendered" by petitioning counsel; "the importance of the subject matter of the controversy;" his "professional standing."

And in line with its various considerations, the said court declared in its resolution of September 24, 1959, that "in the light of its own professional knowledge, considering the skill, labor and time devoted by the movant to the case, he (Francisco) is entitled to 25% of the current market value of the estate of the deceased" — which value it fixed at P1,236,993.46.

Disagreeing with such resolution, Aurea Matias appealed directly to this Court.

Appellant's thesis. — In her brief, Aurea Matias strongly urges the following propositions: (a) the attorney's fees should have been fixed according to the contract — not on the basis of quantum meruit; (b) assuming that the fees could be fixed on quantum meruit, the basis should be the assessed value — not the current market value; (c)

assuming further that the current market value should be the basis, the appraisal made by the Bureau of Internal Revenue should have been adopted; (d) the attorney's fees are chargeable only against appellant, — not against the estate; (e) to award 25% of the gross estate to this attorney would be unreasonable, even unconscionable; (f) there were no special reasons to direct execution pending appeal.

All the above propositions — except the last 2 — will herein be duly considered.

Discussion. — On the strength of Rules 26 and 27 of the Rules of Court, appellant disputes the validity of the hearing in the lower court of appellee's motion to fix, and to pay a portion of his counsel fees.

It appears that the will of Gabina Raquel, who died without forced heirs, bequeathed the greatest part of the estate to appellant, and the rest to Santos Matias, Rafael Matias (her brothers) and to Victorina Salud, Santiago Salud and Policarpio Salud.

Appellant argues here that as notice of the motion had been given neither to her brothers nor to the Saluds, the hearings and the resolution produced no valid and binding effect.

According to the record, at the hearing of October 25, 1958, appellant's counsel called the attention of the lower court to this lack of notice; and during the hearing on June 27, 1959, said counsel again objected on the same ground. Acting upon such objection, the court ruled that the other legatees should also be notified, and accordingly directed that notice be given. In the subsequent hearings which took place on July 13, 1959, and other days of that month, legatee Rafael Matias was present; and appellant's counsel no longer voiced any manifestations or objections.

 

In the resolution now on appeal before this Court, this defect urged by appellant is not discussed. Probably, the other legatees were notified, as ordered.

Anyway, as this particular issue affects appellant's proposition (d) [services not chargeable to estate] both may, for convenience, be jointly taken up.

It is appellee's contention — on these related points — that the attorney's fees for probating the will, constituted a proper charge against the estate 3 , and that a motion to fix such fees should be served, on the executor or administrator of the estate; it being unnecessary to notify the legatees, for the reason that until the project of partition is approved and their portions adjudicated to the legatees, the estate, as well as the heirs and legatees, are legally represented by the executor or administrator. Appellee then concludes that service on appellant as the executrix of the said will, sufficiently complied with the procedural rules on the matter — Aurea Matias having engaged the services of the appellee in her capacity as executrix of the will.

Matias denies having engaged Francisco as executrix. This denial can not prevail as against the following circumstances:

1.Atty. Francisco said he contracted with her as the executrix. The will (shown to him) designated her as such; 2. She later asked to be noted in the estate proceedings, the amount of P15,000.00 (Francisco's fees) as a lien upon the estate (p. 103, R.A.); 3. In her motion ex-parte of July 20, 1959, she petitioned for authority to pay from the estate, the sum of P2,000.00 as part of the retainer fees of Atty. Francisco; 4 She included in her statement of accounts 4 as executrix, Francisco's attorney's fees in the amount of P11,000.00; and 5. The statement of assets and liabilities of the estate filed by her with the lower court on January 10, 1959, listed appellee's fees in the amount of P15,000.00 as an item of estate liability.

Appellant's inconsistent course of action thus meets the judge's eye. Whereas in invoking procedural rules, she denies representative capacity as executrix, she has, as executrix, caused this claim to be recorded as a lien upon the state. Whereas she denied liability of the estate for Francisco's fees, she has charged the estate for the attorney's fees paid by her to him.

On the other hand, if service of the motion upon her does not bind the other legatees — as she claims — because she does not represent them, the question arises, why does she speak for them by insisting on the point?

Finally, it appears that when the lack of notice was called to the attention of the court, service was ordered. Thereafter, hearings were resumed, without any further objection. So, it may be assumed at this level that service was accordingly made; specially because no motion

to reconsider was filed in the court below — which was best fitted to verify compliance with its notification orders.

Quantum meruit. — Proposition (b) addresses itself to the main question: What should be the basis of appellee's fees: the contract or quantum meruit?

Generally speaking, where the employment of an attorney is under an express valid contract 5 fixing the compensation for the attorney, such contract is conclusive as to the amount of compensation. 6

Atty. Francisco assails the written contract, because appellant misrepresented the real value of Gabina's inheritance. Appellant, on the other hand, maintains that the contract should govern, and that if courts could interfere with the stipulated fee, the objective should be to reduce the amount.

Adverse to appellant's contention is the fact that during the hearing on June 27, 1959, after having mulled over the pleadings and listened to oral argument of both parties, the presiding judge defined in open court (a definition to which appellant's counsel acceded), the issue between the parties as, "the reasonable amount of Attorney Francisco's fees for the services he has rendered."

Her counsel's assent to the above definition has placed Aurea in a situation where she could not equitably insist upon the amount fixed in the written contract. Appellant's disavowal of the fee stipulated therein resulted in a repudiation of the contractual compensation.

At this juncture, it may be added: it is very probable, that Atty. Francisco had been actually led to believe that the estate was worth P167,000.00 only; because given his experience and prestige, he would not have undertaken the task of probating a will involving over one million pesos 7 for P15,000.00 only — and contingent at that. 8 Aurea was advised by Simeon del Rosario before going to engage the services of Francisco that the latter charge high fees. — p. 401, Record on Appeal.

In the circumstances, we are constrained to hold that the trial judge did not err in determining the attorney's fees on the basis of quantum meruit in disregard of the written contract.

Assessed value or market value. — With an array of decided cases, appellant argues that in special proceedings, testate or intestate, the value in the inventories submitted by the administrator or executor is considered as the correct value of the estate — binding upon all parties, and even the court, in the proper management and administration of such estate.

Then she points out that in Reyes vs. de la Cruz 9 , a contract providing for compensation of attorney's fees in the amount of 5% of whatever may be adjudicated to the client, was held to refer only to the assessed value of properties adjudicated — and not to their market value.

Refuting this argument, appellee aptly denies analogy between the Reyes decision (supra) and the instant case, because the former merely called for interpretation of the written contract of services 10 ; whereas, the question here at issue is the value of appellee's professional services on the basis of quantum meruit.

This Court must, therefore, determine how much the services of appellee are really worth. And we cannot refuse to take a realistic approach in the performance of the work. Inquiry into the real value of the estate (its true value) becomes imperative.

We note that in Sison vs. Suntal, supra, we fixed the counsel's fees for services rendered in opposing a will on the basis of the market value of the estate.

Market value. — Both parties have submitted for examination, two valuations of the estate. To show that its market value does not exceed P246,329.25, as appellant presented the appraisal for tax purposes of the estate of the deceased by Internal Revenue Examiner Florencio M. Alfonso (Exhibit 3-A); in addition to certificates of the assessed value of such properties in several municipalities of Cavite.

Appellee per contra, substantiated his valuation of the estate at P1,236,993 with official statements of the provincial assessors, and deeds of sale of neighboring realty or of lands similarly situated. And to rebut the certificate Exhibit 3-A, appellee introduced Exhibit "M", and affidavit of Jose Arañas, former Commissioner of Internal Revenue, showing the defect in the methods employed by the Internal Revenue examiners in appraising the inheritance left by deceased taxpayers.

After examining the evidence presented by both sides, we find no important reason to overrule the opinion of the trial judge that the current market value is that reflected in the estimate of the provincial assessors, whose judgment, by reason of their official work and wide experience in such particular line deserves great weight and reliability. Besides, holding court sessions in Cavite City and possessing background information, the trial judge occupied a better position to estimate landed property prices. Furthermore, we cannot discount the fact that the assessment of real properties for tax purposes (the principal element taken into account when the Revenue Examiner made his appraisal) is of little use in a judicial inquiry as to the market value of the land. Lastly, the appraisal made by the Revenue Examiners turned out to be unreliable according to Commissioner of the Internal Revenue Arañas (Exhibit M).

At any rate, we may take judicial notice of the general information that the market value of real property in the provinces is usually three or more times the assessed valuation thereof. 11

Percentage of Fees. — Citing Section 22, Rule 127 of the Rules of Court which says that "an attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services", appellant denounces as unreasonable and unconscionable the 25% given to Atty. Francisco as counsel fees.

This Supreme Court has held the following as the guidelines to be observed in determining the compensation of an attorney: (a) the amount and character of the services rendered; (b) the labor, time and trouble involved; (c) the nature and importance of the litigation or business in which the services were rendered; (d) the responsibility imposed; (e) the amount of money or the value of the property affected by the controversy, or involved in the employment; (f) the skill and experience called for in the performance of the services; (g) the professional character and standing of the attorney; (h) the results secured; (i) and whether or not the fee is absolute or contingent 12 , it being a recognized rule that an attorney may properly charge a much larger fee when it is to be contingent than when it is not." (Moran, Comments on the Rules of Court, Vol. III [1957 Ed.] pp. 644, 645, citing Haussermann vs. Rahmeyer, 12 Phil. 350; and others).

The Court has likewise held that:

"The allowance of counsel fees in probate proceedings rests largely in the sound discretion of the court (probate) which should not be interfered with except for manifest abuse; but it may be modified by the reviewing court, when the fee allowed is inadequate or excessive." (Quintillan vs. Degala, 50 Off. Gaz. 5305.)

By the way, in this Quintillan case, a thirty-percent (30%) or thirty-three percent (33%) contingent fee in opposing a will was held not to be excessive or unreasonable.

 

Importance of the subject matter. — Appellee's services were engaged to secure the probate of the will of Gabina Raquel. Upon the allowance of the will rested the appellant's right to the bulk of an estate, worth more than one million pesos. Had the will been disallowed, appellant and the other legatees named in the will would have received nothing. The whole estate would have passed to the oppositor Basilia Salud, who is the first cousin of the deceased Gabina Raquel — to the exclusion of appellant and the other legatees named in the will. Aurea Matias, whose father is a first cousin of the deceased, stands five degrees removed from Gabina Raquel, whereas Basilia Salud is only four degrees removed from her; and under our rules on succession 13 in case of intestate or legal succession, the relative nearer in degree excludes the more remote ones and considering also, that in the collateral line, the right of representation holds only where nephews and nieces survive with brothers and sisters of the deceased. 14 Note incidentally, that the will favored Aurea because the latter lived with, and rendered services to, her aunt Gabina for more than 32 years.

Nature and extent of the services rendered. — The probate of the will, confronted Aurea's counsel with questions of fact and questions of law. Counsel had to prove that the said will was valid, duly executed in accordance with law. In view of the various grounds of the opposition to the probate of the will, Atty. Francisco had to make wide and extensive research in the field of handwriting, medicine and chemistry — not to mention the interviewing of prospective witnesses.

Indeed, the legal services rendered in the lower court were expectably quite exacting. The trial alone covered almost a period of four years. The preparation and presentation of evidence called for strenuous

work. Thirty-one documents were presented as evidence for the proponent of the will. The transcript of the stenographic notes consisted of more than a thousand pages. Numberless motions were filed. After the closing of the evidence, a memorandum had to be filed to answer the oppositor's motion to reject the will. And then, despite the extensive study, research, and preparation of the evidence, and notwithstanding the skill and experience of Atty. Francisco, the Cavite court denied the probate of the will.

The adverse judgment was appealed to this Court. There was additional labor to be performed, because there was a greater responsibility to discharge. To secure a reversal of judgment was doubly hard. Counsel had to demonstrate the errors of fact and law committed by the lower court in its decision and to persuade the appellate court to reverse — overcoming the presumption in favor of a judicial pronouncement. This Court was actually convinced — the will was admitted to probate. Appellant's brief consisted of 285 printed pages. The reversal of the appealed decision proved the effectiveness of Francisco's appellate advocacy.

Attempting to minimize the importance to the estate of legal services in securing approval of the will, appellant points out that will or no will, the estate remains. The argument, however, plausible, overlooks the significance of the will. It is the desire, the command of the owner of the estate as to how his inheritance shall be distributed. In upholding the will and working for its approval, the attorney was simply serving such departed owner of the estate — and so in effect serving the estate.

As already explained, had the will been disapproved, this appellant and the other legatees would have gotten nothing out of the estate. It is fair to make them pay. "Yes, they are liable, but not the estate" appellant may reply. Such distinction does not seem equitable. Anyway, as stated, service was rendered to the estate.

Professional Standing of counsel. — The professional standing of appellee has been amply attested to by the late Senator Claro M. Recto and the former Secretary of Justice, Jose P. Bengzon. Appellee has been shown to have practiced law since his admission to the bar in 1914, either alone or in association with other equally prominent lawyers; to have figured in several precedent-laying controversies decided by this Court; to have annotated or written commentaries on practically every branch of the law; to have published and edited for 23

years, the Lawyers Journal; to have founded a law school; to have actively participated in various political and civic organizations; to have been elected to the Philippine Senate, obtaining the highest number of votes among all the senatorial candidates in the election held in the year 1945, etc.

There is no doubt, he belongs in the front line of the legal profession. In trial work, there are few who can match his mental acumen and resourcefulness.

Conclusion. — Taking into account all the variables of the process, in the light of our several pronouncements on the matter of contingent lawyer's fees, we feel that modifying the appealed resolution and awarding 12.5% of the market value to the herein appellee would accomplish substantial justice. This figure represents a compromise, some members having voted for a bigger amount 15 , while others voted for less. The Suntay and the Harden cases were specially mentioned, since they belonged to the million-peso class. This award sets a higher ratio than the first, because the latter involved over three million pesos and because Atty. Francisco rendered much greater services to this estate. For one thing, he handled tedious trial work which lasted for about four years — and for another, the fee was contingent. The Harden ratio (20%) was not applied, because attorney and client had entered therein into a valid written contract. 16

Several circumstances account for this drastic reduction, among them: (a) 25% of P1,236,993.46 equals P309,248.36; but Atty. Francisco expressed willingness to receive P100,000.00 only, in his letter of September 15, 1958 (Record on Appeal, p. 132); (b) although admittedly the leading legal counsel, he got the assistance of three other attorneys; (c) believing the estate amounted to P167,000.00, he agreed to receive P15,000.00 as contingent fee, i.e. 9% only; and (d) he has already received a total of P11,000.00.

Judgment. — WHEREFORE, modified as herein indicated, the appealed decision is affirmed. No costs in this instance.

Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ ., concur.

EN BANC

[A.C. No. 2144. April 10, 1989.]

CELEDONIO QUILBAN, ROMUALDO DALAGAN, FORTUNATO RAMIREZ, AMADOR ALARCON and LUIS AGAWAN, complainant, vs. ATTY. SANTIAGO R. ROBINOL, respondent.

[A.C. No. 2180. April 10, 1989.]

ATTY. SANTIAGO R. ROBINOL, complainant, vs. ATTY. A. R. MONTEMAYOR, respondent.

SYLLABUS

1.LEGAL AND JUDICIAL ETHICS; ATTORNEYS; DISBARMENT; GRAVE MISCONDUCT; A CASE OF. — Atty. Robinol is guilty of ethical infractions and grave misconduct that make him unworthy to continue in the practice of the profession. After the Court of Appeals had rendered a Decision favorable to his clients and he had received the latter's funds, suddenly, he had a change of mind and decided to convert the payment of his fees from a portion of land equivalent to that of each of the plaintiffs to P50,000.00, which he alleges to be the monetary value of that area. Certainly, Atty. Robinol had no right to unilaterally appropriate his clients' money not only because he is bound by a written agreement but also because, under the circumstances, it was highly unjust for him to have done so. His clients were mere squatters who could barely eke out an existence. They had painstakingly raised their respective quotas of P2,500.00 per family with which to pay for the land only to be deprived of the same by one who, after having seen the color of money, heartlessly took advantage of them.

2.ID.; ID.; HAS NO RIGHT TO RETAIN THE MONEY OF CLIENT FOR ALLEGED UNJUST DISCHARGE AS COUNSEL. — Atty. Robinol has no basis to claim that since he was unjustly dismissed by his clients he had the legal right to retain the money in his possession. Firstly, there was justifiable ground for his discharge as counsel. His clients had lost confidence in him for he had obviously engaged in dilatory tactics to the detriment of their interests, which he was duty-bound to protect. Secondly, even if there were no valid ground, he is bereft of any legal right to retain his client's funds intended for a specific purpose — the

purchase of land. He stands obliged to return the money immediately to their rightful owners.

3.ID.; ID.; ATTORNEY'S FEES; PRINCIPLE OF QUANTUM MERUIT ; WHEN APPLICABLE. — The principle of quantum meruit applies if a lawyer is employed without a price agreed upon for his services in which case he would be entitled to receive what he merits for his services, as much as he has earned. In this case, however, there was an express contract and a stipulated mode of compensation. The implied assumpsit on quantum meruit, therefore, is inapplicable.

4.ID.; ID.; VIOLATION OF LAWYER'S OATH TO DELAY NO MAN FOR MONEY; DISBARMENT JUSTIFIED. — Atty. Robinol has rendered himself unfit to continue in the practice of law. He has not only violated his oath not to delay any man for money and to conduct himself with all good fidelity to his clients. He has also brought the profession into disrepute with people who had reposed in it full faith and reliance for the fulfillment of a life-time ambition to acquire a homelot they could call their own. Atty. Santiago R. Robinol is hereby DISBARRED for having violated his lawyer's oath to delay no man for money, broken the fiduciary relation between lawyer and client, and proven himself unworthy to continue in the practice of law. By reason of his unethical actuations, he is hereby declared to have forfeited his rights to attorney's fees and is ordered to return the amount of P75,000.00 to the plaintiffs in Civil Case No. Q-16433 through the complainants in the aforementioned Administrative Case.

5.ID.; ID.; MAY BE CHANGED AT ANY TIME FOR LOSS OF TRUST AND CONFIDENCE. — There is no gainsaying that clients are free to change their counsel in a pending case at any time (Section 26, Rule 138, Rules of Court) and thereafter employ another lawyer who may then enter his appearance. In this case, the plaintiffs in the civil suit below decided to change their lawyer, Atty. Robinol, for loss of trust and confidence. That act was well within their prerogative.

R E S O L U T I O N

PER CURIAM p:

Subjected to frustrations were the dreams of thirty-two (32) squatter families to own the land of approximately 50 square meters each on which their respective homes were built. To vindicate their rights they have aired their plight before this Court. Thwarted, too, was the benevolence shown by the original owner of the land which parted with its property at a giveaway price thinking that it was accommodating the landless squatters. prLL

The antecedent facts follow:

The Colegio de San Jose, a Jesuit corporation, (Colegio, for short) used to own a parcel of land at the Seminary Road, Barrio Bathala, Quezon City. Through its administrator, Father Federico Escaler, it sold said land to the Quezon City Government as the site for the Quezon City General Hospital but reserved an area of 2,743 square meters as a possible development site. Squatters, however, settled in the area since 1965 or 1966.

Sometime in 1970, the Colegio, through Father Escaler gave permission to Congressman Luis R. Taruc to build on the reserved site a house for his residence and a training center for the Christian Social Movement. Seeing the crowded shanties of squatters, Congressman Taruc broached to Father Escaler the idea of donating or selling the land cheap to the squatters. Congressman Taruc then advised the squatters to form an organization and choose a leader authorized to negotiate with Father Escaler. Following that advice, the squatters formed the a Samahang Pagkakaisa ng Barrio Bathala" (Samahan, for brevity), with Bernabe Martin as President (Exhibit "24", Robinol), who was entrusted with the task of negotiating on their behalf for the sale of the land to them.

But instead of working for the welfare of the Samahan, Martin went to one Maximo Rivera, a realtor, with whom he connived to obtain the sale to the exclusion of the other Samahan members. On 28 March 1971, the land was ultimately sold to Rivera at P15 per square meter or a total consideration of P41,961.65. The prevailing price of the land in the vicinity then was P100 to P120 per square meter. It was evident that Father Escaler had been made to believe that Rivera represented the squatters on the property. On the same date, 28 March 1971, Rivera obtained TCT No. 175662 to the property in his name alone.

In 1972, thirty-two heads of families of the Samahan filed Civil Case No. Q-16433, Branch IV, Quezon City, entitled a "Celedonio Quilban, et

al., Plaintiffs, vs. Maximo Rivera, et al., Defendants." with the principal prayer that said defendants be ordered to execute a deed of conveyance in favor of said plaintiffs after reimbursement by the latter of the corresponding amount paid by Rivera to the Colegio. The Court of First Instance of Quezon City, however, dismissed the case.

To prosecute the appeal before the Court of Appeals, the Samahan members hired as their counsel Atty. Santiago R. Robinol for which the latter was paid P2,000.00 as attorney's fees on 8 October 1975 (Exhibit "I") Atty. Robinol was also to be given by the members a part of the land, subject matter of the case, equal to the portion that would pertain to each of them. What was initially a verbal commitment on the land sharing was confirmed in writing on 10 March 1979 (Exhibi "2").

On 14 November 1978, the Court of Appeals reversed the CFI Decision by:

"(1)ordering defendant Maximo Rivera and all his co-defendants to execute a deed of conveyance of the land in question in favor of herein plaintiffs after the payment of the corresponding amount paid by the defendants to the Colegio de San Jose, Inc., and in case of refusal or failure on their part to do so, ordering the Clerk of Court to execute the same in favor of plaintiffs and declaring TCT No. 175662 (Annex E) null and void and ordering the Register of Deeds of Quezon City to cancel said certificate and issue a new one in lieu thereof in the name of plaintiffs-appellants, upon presentation of the deed of conveyance to be executed in favor of appellants and (2) ordering appellees jointly and severally to pay appellants the sum of P2,000.00 as attorney's fees, plus costs." (p. 30, Report and Recommendation)

To raise the amount of P41,961.65 ordered paid by the Court of Appeals, plus expenses for ejectment of the non-plaintiffs occupying the property, conveyance, documentation, transfer of title etc., the five officers of the Samahan collected, little by little, P2,500.00 from each head of family. The Treasurer, Luis Agawan, issued the proper receipts prepared by Atty. Robinol.

On 18 May 1979, the sum of P68,970.00 was turned over to Atty. Robinol by the officers; on 31 May 1979 the amounts of P1,030.00 and P2,500.00 respectively; and on 2 June 1979, the sum of P2,500.00, or a total of P75,000.00.

After almost a year, the five officers discovered that no payment had been made to Rivera. When queried, Atty. Robinol replied that there was an intervention filed in the civil case and that a Writ of Execution had not yet been issued by the Court of First Instance of Quezon City. However, it turned out that the motion for intervention had already been dismissed. After confronting Atty. Robinol with that fact, the latter gave other excuses, which the officers discovered to have no basis at all. llcd

On 6 March 1980, 21 out of 32 plaintiffs arrived at a "first consensus" to change their counsel, Atty. Robinol (Exhibit "3"). The officers of the Samahan thereafter approached Atty. Anacleto R. Montemayor, who agreed to be their counsel, after he was shown the document of 6 March 1980 containing the consensus of the Samahan members to change Atty. Robinol as their lawyer. Upon Atty. Montemayor's advice, the officers sent Atty. Robinol a letter dated 17 March 1980 informing the latter of their decision to terminate his services and demanding the return of the P75,000.00 deposited with him (Exhibit "5"). Atty. Robinol turned deaf ears to the demand. A subsequent letter of the same tenor, dated 31 March 1980 (Exhibit "6"), was similarly disregarded by Atty. Robinol.

 

On 20 March 1980, Atty. Montemayor formally entered his appearance in Civil Case No. Q-16433 as counsel for the plaintiffs (Exhibit "8"), vice Atty. Robinol, on the strength of the authority dated 18 March 1980 given him by plaintiffs in said civil case through the five officers (Exhibit "9"). Atty. Montemayor then filed on 20 March 1980 a Motion for Execution praying that the defendants and/or the Clerk of Court be directed to execute a deed of conveyance in favor of the plaintiffs (Exhibit "10"). At the hearing of the Motion for Execution on 5 June 1980, Atty. Robinol manifested that he had no objection to the appearance of and his substitution by Atty. Montemayor (Exhibits "11" & "11-A").

Because Atty. Robinol, however, still questioned the first consensus dated 6 March 1980, another document labelled the "second consensus" (Exhibit "E") was signed by 21 plaintiffs during a meeting held for the purpose on 24 November 1980 to the effect that they had decided to change Atty. Robinol as their counsel because he had delayed paying for their land notwithstanding the Decision of the Court of Appeals in their favor.

Administrative Case No. 2144

On 15 April 1980 the Samahan officers filed this Administrative Complaint before this Court requesting the investigation of Atty. Robinol for refusal to return the P75,000.00 and praying that the Court exercise its power of discipline over members of the Bar unworthy to practice law. The details of their Complaint were embodied in their Joint Affidavit executed on 14 April 1980 describing what had transpired between them and Atty. Robinol.

In his defense, Atty. Robinol maintains that he was hired by Complainants to appeal their case to the Court of Appeals after they had lost in the lower Court; that their agreement as to attorney's fees was on a contingent basis — if he obtains a reversal of the lower Court Decision, they will give him a portion of the property subject matter of the litigation equal to the portion that will pertain to each of the 32 plaintiffs in Civil Case No. Q-16433; that he did not receive P70,000.00 from Complainants on 18 May 1979 but only P56,470.00; that he prepared and signed the receipt dated 18 May 1979 showing that he received P70,000.00 only to save complainants from embarrassment and shame should their co-plaintiffs ask for proof that they (Complainants) have paid their shares, which they have not; that the correct amount in his possession is only P62,470.00 — it would really be P75,000.00 had the five Complainants paid their shares in the amount of P12,500.00 at P2,500.00 each and one Fortunato Ramirez paid his balance of P30.00; that he had the right to hold the money in his possession as guarantee for the payment of his attorney's fees - instead of getting a portion of the property that will pertain to each of the plaintiffs, he wants his portion converted to cash, and the cash equivalent of his portion is P50,000.00 (2,743 square meters divided by 32 plaintiffs equals 85 square meters for each plaintiff, multiplied by P500.00 up per square meter), that considering that P50,000.00 is even less than one-half (1/2) per cent of the total value of the property, which is more than a million pesos, such amount is not unreasonable; that he is ready to due back the amount of P12,470.00, representing the difference between P50,000.00 and the amount of P62,470.00 in his possession; that complainants cannot make this Court a collection agency and that while this Court has the exclusive disciplinary power over members of the Bar, it is equally true that the Court cannot pass judgment on Complainants' plea that the amount deposited by respondent be returned to them as this prayer should be ventilated in an ordinary action; that he does not have the slightest intention to

appropriate the money in his possession (P62,470.00) for himself, but he is holding it until his attorney's fees are satisfied there being no guarantee for its satisfaction because of Complainants' adamant refusal to pay him; that there was no previous notice to him of his discharge; and that Atty. Montemayor accepted the case without his (Robinol's) formal withdrawal and conformity. llcd

Administrative Case No. 2180

Pursuing that tack, on 29 July 1980, Atty. Robinol filed a complaint for Disbarment against Atty. Anacleto R. Montemayor for alleged gross unethical conduct unbecoming of a lawyer in that Atty. Montemayor readily accepted the case without his (Robinol's) formal withdrawal and conformity and knowing fully well that there was no consensus of all the plaintiffs to discharge him as their counsel.

For his part, Atty. Montemayor denied that the attorney's fees agreed upon by plaintiffs and Atty. Robinol were purely on a contingent basis, the truth being that the attorney's fees were payable on a cash basis of P2,000.00 retainer fee, as evidenced by the receipt signed by Atty. Robinol (Annex "I"), plus whatever amount is adjudicated as attorney's fees by the Court of Appeals; that the contingent fee referred to by Atty. Robinol was the result of his insistent demand after the Court of Appeals Decision in Civil Case No. Q-16433 was already final, as shown by the date of the agreement (Annex "2"); that twenty [20] out of thirty-two [32] members of the Samahan signed the agreement to discharge Atty. Robinol and hire a substitute counsel as shown by Annex "3," which is a majority of the membership and, therefore, a valid consensus; that he agreed to act as counsel if only to arrest the growing belief of the Samahan that most members of the Philippine Bar are unprincipled; that although there was no formal Motion for substitution, there was substantial compliance with Sec. 26, Rule 138 of the Rules of Court, as shown by the formal entry of appearance in Civil Case No. Q-16433 (Annex "8"), the written consent of the clients (Annex "9"), notice to Atty. Robinol of his discharge and substitution (Annexes "10" and "11"), non-objection by Robinol of his appearance as counsel (Annex "12"), and implied consent of the Court to the substitution as shown by its Order of 29 May 1980 (Annex "13"); that his professional and personal actuations as counsel for the plaintiffs in Civil Case No. Q-16433, CFI-Quezon City, do not cause dishonor either to himself or to the Philippine Bar; and that the Complaint against him should be dismissed.

On 1 September 1980 and on 17 December 1980, the Court referred Adm. Case No. 2144 and Adm. Case No. 2180, respectively, to the Office of the Solicitor General for investigation, report and recommendation. On 15 December 1988, the Solicitor General submitted his compliance and recommended:

"1.That Atty. Santiago R. Robinol be suspended for three months for refusing to deliver the funds of the plaintiffs in his possession, with the warning that a more severe penalty will be imposed for a repetition of the same or similar act, and that he be ordered to return to the plaintiffs, through the complainants in Adm. Case No. 2134, the sum of P75,000.00.

"2.That the case against Atty. Anacleto R. Montemayor, Adm. Case No. 2180, be dismissed, since he has not committed any misconduct imputed to him by Atty. Robinol." (pp. 59-60, Rollo)

Except for the disciplinary sanction suggested for Atty. Robinol, we concur with the recommendations.

Re: Atty. Santiago R. Robinol

Atty. Robinol has, in fact, been guilty of ethical infractions and grave misconduct that make him unworthy to continue in the practice of the profession. After the Court of Appeals had rendered a Decision favorable to his clients and he had received the latter's funds, suddenly, he had a change of mind and decided to convert the payment of his fees from a portion of land equivalent to that of each of the plaintiffs to P50,000.00, which he alleges to be the monetary value of that area. Certainly, Atty. Robinol had no right to unilaterally appropriate his clients' money not only because he is bound by a written agreement but also because, under the circumstances, it was highly unjust for him to have done so. His clients were mere squatters who could barely eke out an existence. They had painstakingly raised their respective quotas of P2,500.00 per family with which to pay for the land only to be deprived of the same by one who, after having seen the color of money, heartlessly took advantage of them.

Atty. Robinol has no basis to claim that since he was unjustly dismissed by his clients he had the legal right to retain the money in his possession. Firstly, there was justifiable ground for his discharge as counsel. His clients had lost confidence in him for he had obviously engaged in dilatory tactics to the detriment of their interests, which he

was duty-bound to protect. Secondly, even if there were no valid ground, he is bereft of any legal right to retain his client's funds intended for a specific purpose — the purchase of land. He stands obliged to return the money immediately to their rightful owners.  prLL

The principle of quantum meruit applies if a lawyer is employed without a price agreed upon for his services in which case he would be entitled to receive what he merits for his services, as much as he has earned. In this case, however, there was an express contract and a stipulated mode of compensation. The implied assumpsit on quantum meruit, therefore, is inapplicable.

But Atty. Robinol seeks to impress upon the Court that he had received only the sum of P62,470.00 and not P75,000.00 claiming that five (5) officers of the Samahan had not yet paid their shares totalling P12,500.00.

We agree with the Solicitor General that complainants' evidence on this score is the more credible and that he had, in fact, received the total sum of P75,000.00 inclusive of the share of P12,500.00 of the five (5) officers of the Samahan. For, in the pleadings filed by Atty. Robinol himself in the civil case below, namely, the Motion for Execution on 5 June 1979; the Motion for Postponement on 31 August 1979; and the Motion to Set Hearing of Motion for Execution on 10 March 1980, he made mention of seven (7) persons, who, as of that time, had not yet submitted their corresponding shares which list, however, did not include any of the five (5) officers of the Samahan.

 

Inevitable, therefore, is the conclusion that Atty. Robinol has rendered himself unfit to continue in the practice of law. He has not only violated his oath not to delay any man for money and to conduct himself with all good fidelity to his clients. He has also brought the profession into disrepute with people who had reposed in it full faith and reliance for the fulfillment of a life-time ambition to acquire a homelot they could call their own. cdll

Re: Atty. Anacleto R. Montemayor

In so far as Atty. Montemayor is concerned, we agree with the findings of the Solicitor General that he has not exposed himself to any plausible charge of unethical conduct in the exercise of his profession

when he agreed to serve as counsel for the plaintiffs in Civil Case No. Q-16433.

Of the thirty-two (32) plaintiffs in said civil case, twenty-one (21) had signed the first consensus of 6 March 1980 expressing their resolve to change their lawyer. In as much as Atty. Robinol sought to exclude seven (7) of the plaintiffs (out of 32) for non-payment of their shares, only twenty five (25) of them should be considered in determining the majority. Consequently, twenty-one (21) out of twenty-five (25) is sufficient to make the said consensus binding. It is more than a simple majority.

Moreover, the following developments estop Atty. Robinol from questioning his discharge as counsel: On 17 March 1980 he was informed in writing by plaintiffs of the termination of his services (Exhibit "5"). That was followed by another letter of 31 March 1980 of the same tenor (Exhibit "6"). In his Memorandum of 12 December 1985 and during the proceedings before the lower Court on 5 June 1980 he had stated that he had no objection to Atty. Montemayor's appearance in Civil Case Q-16433. When the latter did enter his appearance, therefore, on 20 March 1980 it was only after assuring himself that Atty. Robinol's services had been formally terminated. He had in no way encroached upon the professional employment of a colleague.

There is no gainsaying that clients are free to change their counsel in a pending case at any time (Section 26, Rule 138, Rules of Court) and thereafter employ another lawyer who may then enter his appearance. In this case, the plaintiffs in the civil suit below decided to change their lawyer, Atty. Robinol, for loss of trust and confidence. That act was well within their prerogative. cdll

In so far as the complaint for disbarment filed by Atty. Robinol against Atty. Montemayor is concerned, therefore, we find the same absolutely without merit.

ACCORDINGLY, 1)In Administrative Case No. 2144, Atty. Santiago R. Robinol is hereby DISBARRED for having violated his lawyer's oath to delay no man for money, broken the fiduciary relation between lawyer and client, and proven himself unworthy to continue in the practice of law. By reason of his unethical actuations, he is hereby declared to have forfeited his rights to attorney's fees and is ordered to return the amount of P75,000.00 to the plaintiffs in Civil Case No. Q-16433 through the complainant in the aforementioned Administrative Case.

2)Administrative Case No. 2180 against Atty. Anacleto R. Montemayor for disbarment is hereby DISMISSED for lack of merit.

Let copies of this Resolution be entered in the respective personal records of Attys. Santiago R. Robinol and Anacleto R. Montemayor.

This Resolution is immediately executory.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado, JJ.,concur.

 

EN BANC

[G.R. No. L-27832. May 28, 1970.]

TESTATE ESTATE OF AMADEO MATUTE OLAVE, Deceased, CARLOS V. MATUTE, general administrator-appellant, MATIAS S. MATUTE, co-administrative-appellant, PATERNO R. CANLAS, appellant, vs. JOSE S. MATUTE, ANUNCIACION CANDELARIO, ELENA MATUTE Y CANDELARIO and AMADEO MATUTE Y CANDELARIO, JR., appellees.

Paterno R. Canlas in his own behalf and for all other appellants.

Antonio Enrile Inton, Jose W. Diokno and Ledesma Associates for appellees.

SYLLABUS

1.LEGAL ETHICS; ATTORNEY AND CLIENT; RETAINING LIEN; ATTORNEY CANNOT BE COMPELLED TO SURRENDER DOCUMENTS OF TITLE IN HIS POSSESSION WITHOUT PRIOR PROOF OF SATISFACTION OF HIS FEES. — The explicit terms of Rule 138, Section 37 of the Rules of Court afford no other alternative but to uphold the claim of appellant Paterno

Canlas with respect to the seventeen documents of title to diverse properties of the estate of the deceased which are in his possession. His right, as counsel for the deceased and his estate, "to retain the same until his lawful fees and disbursements have been paid" is incontestable, and under the rule and section aforesaid, the attorney can not be compelled to surrender the monuments of title mentioned without prior proof that his fees have been duly satisfied.

2.ID.; ID.; ID.; COURTS BOUND TO PROTECT THE ATTORNEY'S LIEN. — The courts, in the exercise of their supervisory authority over attorneys as officers of the court, are bound to respect and protect the attorneys' lien as a necessary means to preserve the decorum and respectability of the profession.

3.ID.; ID.; ID.; COURTS CAN REQUIRE SURRENDER OF DOCUMENTS UPON FILING OF ADEQUATE SECURITY FOR LAWYERS' COMPENSATION. — If it be entirely indispensable for the court to gain possession of the documents that have come to the attorney and are held by him in the course of his employment as counsel, it can require surrender thereof by requiring the client or claimant to first file proper and adequate security for the lawyer's compensation.

4.ID.; ID.; ID.; RULING IN INTON VS. MATUTE NOT IN CONFLICT WITH INSTANT CASE. — Our ruling in Inton vs. Matute, L-21283, 31 August 1966, 17 SCRA 1010, is not in conflict with the present decision. In that case, the retention of documents belonging to the estate was denied because the counsel had served not the estate but the administrator in his individual capacity.

D E C I S I O N

REYES, J.B.L., J p:

Perfected prior to the effectivity of Republic Act No. 5440, this appeal by Carlos V. Matute and Matias V. Matute, co-administrators of the Testate Estate of the late Amadeo Matute Olave (Special Proceedings No. 25876 of the Court of First Instance of Manila), and by their attorney-at-law, Paterno Canlas, was interposed to seek reversal, on points of law, of the probate court's order of 22 April 1967 requiring

these appellants to surrender seventeen (17) titles to diverse properties of the estate to the assistant clerk of court for safekeeping.

The incident originated in a motion filed by respondents Jose S. Matute, Anunciacion Candelario, and Elena and Amadeo, both surnamed Matute y Candelario, praying that the former administrator, Matias S. Matute, be ordered to surrender 17 titles to various properties of the Estate to the assistant clerk of court, from whom said Matias had received them on 28 September 1966. The motion was vigorously resisted by the co-administrators Matias and Carlos Matute and several other heirs (through counsel Paterno Canlas), who pleaded that the removal of Matias as administrator and his replacement by Jose S. Matute were still under appeal; that the titles aforesaid had been delivered to both Matias and Carlos Matute; that the latter "is at present and from time to time in possession of the said seventeen (17) titles", and "the co-administrator Matias S. Matute is no longer in possession of said titles" (Record on Appeal, page 6); that Attorney Paterno Canlas had a pending claim for P261,000.00, on account of legal services rendered to the estate for the study, preparation, drafting, due execution and probate of the 1962 testament of the deceased; that the claim was later compromised for P2,000,000.00; that —

"the undersigned who is from time to time also in possession of the seventeen (17) titles belonging to the Estate in his capacity as counsel for the Estate is also retaining said titles in the exercise of his retention lien for services rendered to the estate (not to the Administrators) . . . ;" (Record on Appeal, pages 7-8)

and invoked Rule 138, Section 37, of the Rules of Court.

As aforesaid, the probate court granted the motion to surrender the documents to the clerk of court for safekeeping, "in order to prevent any possible controversy regarding any transaction involving the remaining properties of the estate" (Record on Appeal, page 18).

Reconsideration of the order was sought and denied 29 May 1967, the Court ordering Attorney Paterno S. Canlas to surrender said documents "immediately . . . upon receipt hereof."

Wherefore, the oppositors duly perfected the present appeal, insisting that it was error for the court below to have granted the motion to

surrender the titles in question in view of Rule 138, Section 37, of the Rules of Court, specifically prescribing that —

"SEC. 37.Attorneys' liens. — An attorney shall have a lien upon the funds, documents and papers of his client which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof . . . "

The explicit terms of this section afford no alternative but to uphold the claim of appellant Paterno Canlas with respect to the seventeen documents in his possession. His right, as counsel for the deceased and his estate, "to retain the same until his lawful fees and disbursements have been paid "is incontestable, and under the rule and section aforesaid, the attorney can not be compelled to surrender the muniments of title mentioned without prior proof that his fees have been duly satisfied. 1The courts, in the exercise of their supervisory authority over attorneys as officers of the court, are bound to respect and protect the attorney's lien as a necessary means to preserve the decorum and respectability of the profession. 2

But if it be entirely indispensable for the court to gain possession of the documents that have come to the attorney and are held by him in the course of his employment as counsel, it can require surrender thereof by requiring the client or claimant to first file proper and adequate security for the lawyers' compensation (Rustia vs. Abeto, 72 Phil. 139).

"We are aware of the inconvenience that may accrue to the client because of the retention of important papers by an attorney claiming fees for services rendered, but this is the reason and essence of the lien. Withal, the courts may require the attorney to deliver up the papers in his possession which may serve to embarrass his client, provided the client files proper security for the attorney's compensation. This proceeds from the power of the courts to control its own officers and to compel attorneys to act equitably and fairly towards their clients. (Chitton v. Pardon, Turner & Russel's Reports, 301; Richards v. Platel, Craig & Philipp's Report, 79; Matter of Jewitt, 34 Beav. 22; Matter of Galland, 31 Chancery Division, 296; Robinson v. Rogers, 237 N. Y. 467, 472-473.)"

In so far as the court below required surrender of the documents here in question without first providing for satisfaction of his fees or, at

least, proper security for their payment, the appealed order is plainly in error.

Whatever doubt may have arisen on account of the lawyer's ambiguous expression that he "is from time to time also in possession of the seventeen (17) titles belonging to the Estate" (Record on Appeal, page 7) is set at rest by the finding of the probate court, in its order of 29 May 1967, that Attorney Paterno Canlas "has admitted the fact that he is in possession of the 17 titles of the properties of the estate" (Record on Appeal, page 30). In the light of this order, it is patent that the stated possession "from time to time" of the documents in question should be construed to mean that the attorney came into possession thereof at different times, a circumstance that does not impair his right of retention until payment.

Our ruling in Inton vs. Matute, L-21283, 31 August 1966, 17 SCRA 1010, is not in conflict with the present decision. In that case, the retention of documents be longing to the estate was denied because the counsel had served not the estate but the administrator in his individual capacity.

IN VIEW OF THE FOREGOING, the orders of the probate court dated 22 April 1967 and 29 May 1967, in so far as denying appellant Attorney Paterno Canlas' right to retain the seventeen (17) documents in his hands, as counsel for the estate, and requiring him to surrender the same without his claim for fees being first satisfied, are hereby reversed and set aside. Costs against appellees.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Fernando, Teehankee, Barredo and Villamor, JJ., concur.

Castro, J., took no part.

EN BANC

[G.R. No. L-27394. July 31, 1970.]

ARMANDO V. AMPIL, petitioner, vs. THE HONORABLE JUDGE CORAZON JULIANO-AGRAVA, ANTONIO M. PEREZ and BENIGNO PEREZ Y TUASON, respondents.

Antonio P. Coronel for petitioner.

Alfonso Felix, Jr. for respondent Antonio M. Perez.

Leonardo Abola for respondent Benigno Perez y Tuason.

D E C I S I O N

TEEHANKEE, J p:

An original action of certiorari to annul the lower court's questioned order requiring petitioner to surrender three certificates of title, notwithstanding his assertion of his right of an attorney's retaining lien over them.

Petitioner, for a considerable period of time, was the counsel for Angela Tuason de Perez in several cases, The principal cases so handled successfully by petitioner for Angela were the following:

Civil Case No. 34626 of the Court of First Instance of Manila filed against Angela by herein respondents Antonio M. Perez and Benigno Perez y Tuason, her husband and son, respectively, asking principally that Angela be placed under guardianship because of her alleged prodigality and that a suitable person be appointed to administer her properties. On May 2, 1958, the parties submitted to the said court a compromise agreement, of the same date, which shortly afterwards was denounced by Angela. On September 30, 1958, without passing on the validity of the compromise agreement, the said court dismissed the action for lack of jurisdiction. 1

Case G.R. No. L-14874 was the appeal to the Supreme Court taken by respondents Perezes from the court of first instance's dismissal of their action. This Court in its decision handed down on September 30, 1960, affirmed the dismissal, holding that jurisdiction properly pertained to the Juvenile and Domestic Relations Court of Manila.

Special Proceedings No. 03123 of the domestic court of Manila was then filed on November 10, 1960 by respondents Perezes, whose objective was limited to seeking the said court's approval of the above compromise agreement submitted on May 2, 1958 to the Manila court of first instance. Upon motion on behalf of Angela, the domestic

relations court dismissed the proceeding on the ground of lack of jurisdiction over the subject matter, holding that "(T)he compromise agreement herein sought to be approved was allegedly entered into during the pendency of Civil Case No. 34626 of the Court of First Instance of Manila presumably to settle it amicably. But the said case was dismissed by that Court for lack of jurisdiction, and as its decision was affirmed by the Supreme Court, there was no more case to be settled by compromise because the three causes of action involved therein had not been refiled in this Court." 2

G.R. No. L-19711, the appeal to the Supreme Court taken in turn by respondents Perezes from the domestic court's dismissal of their second action.

Petitioner asserts and it is not disputed, that sometime in November, 1966, Angela, acting through a new attorney in-fact in the person of her daughter, Angela Perez y Tuason de Staley, terminated his services as counsel without just and lawful cause and without paying him for his professional services, for which he presented his bill in due course, as well as asserted his retaining lien over the three titles entrusted to him by Angela in the course of his professional employment in his letter of February 16, 1967 to respondents' counsel. 3

After petitioner's discharge as counsel, developments ensued which gave rise to the present action. In Case No. L-19711, the pending appeal from the domestic court's order of dismissal of respondents Perezes' action, the very same compromise agreement of May 2, 1958 was submitted anew to this Court which approved the same in its Resolution of November 17, 1966 as follows:

"In L-19711 (Antonio M. Perez, et al. vs. Angela Tuason de Perez), the appearance of A. Pison, Jr. as counsel for respondent-appellee in substitution of Attys. C. S. Tanjuatco & Associates and Atty. Armando V. Ampil, is NOTED; and considering the motion filed by respondent Angela Tuason de Perez by and through her daughter and attorney-in-fact Angela Perez y Tuason de Staley and assisted by new counsel for said respondent, manifesting (1) that said daughter is her duly authorized attorney-in-fact; (2) that said respondent now confirms the compromise agreement entered into by her husband and her son on May 2, 1958, copy of which is attached to the motion as Annex 'B'; and (8) that said respondent affirms that this compromise agreement was right and proper, THE COURT RESOLVED to approve said compromise agreement." 4

In the said compromise agreement, 5 Angela, inter alia, ceded in full ownership to her son, respondent Benigno Perez, the Sampaloc, Manila property covered by T.C.T. No. 34769 and to her husband, respondent Antonio M. Perez, seven other properties 6 all situated in Sampaloc, Manila covered by seven separate titles, among them, T.C.T. Nos. 24927 and 24928 — which three titles are the ones involved herein. Angela likewise agreed to pay her husband the sum of P63,000.00 in full settlement of his claim for damages. In turn, respondents Perezes, (with Antonio signing on behalf of his son Benigno as guardian ad litem) renounced any and all claims against Angela and acknowledged that "defendant (Angela) owns in full ownership the interests and properties presently in her name in J. M. Tuason and Co. and Gregorio Araneta, Inc., acknowledge that she is fully entitled to administer and/or encumber and/or alienate the said interests and properties as well as such other properties that she may acquire with the proceeds of the sale, exchange or encumbrance of the same."

Thereafter, respondents Perezes, having failed to obtain from petitioner the three titles to the properties ceded to them as above stated in the compromise agreement, as petitioner asserted his retaining lien over them, filed on February 22, 1967 with respondent domestic court a so-called motion ,for partial execution disputing petitioner's asserted lien of retention and asking the court to order petitioner to surrender the three titles to them.

Overruling petitioner's opposition asking the court to respect his right to retain the titles until the value of the professional services rendered by him to Angela shall have been paid in full by the latter, respondent court ordered under date of March 8, 1967 petitioner to surrender the titles to respondents Perezes within five days from notice, holding that "(A)s the Compromise Agreement has already been approved, it is believed that the Court can have it enforced and, in connection therewith, can compel Atty. Ampil to deliver the owners duplicates of T.C.T.'s Nos. 24927, 24928 and 34769 to the Perezes . . . Any attorney's lien in favor of Mr. Ampil, as attorney of Tuason should be enforced against his client. and not against the Perezes." 7

Petitioner thereupon, sought the present recourse and the Court in a resolution of April 13, 1967 issued a writ of preliminary injunction against the enforcement of respondent court's questioned order. Petitioner urges that respondent court acted with grave abuse of discretion in having granted the motion to surrender the titles in his possession, notwithstanding the provisions of the first part of Rule 138,

section 37 of the Rules of Court, expressly recognizing his right of retaining lien:

"SEC. 37.Attorneys' liens. — An attorney shall have a lien upon the funds, documents and papers of his client which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof . . ."

Petitioner must prevail.

1.Full recognition of an attorney's retaining lien, present the elements of lawyer-client relationship, lawful possession of the client's funds, documents and papers and unsatisfied claim for attorney's fees, has invariably been extended by the Court in view of the categorical terms of the cited Rule. 8 In the latest case of Matute vs. Matute, 9 the Court again emphasized, speaking through Mr. Justice J.B.L. Reyes, that a counsel's right to retain muniments of title in his possession until payment of his lawful fees and disbursements is effected "is incontestable, and under the rule and section aforesaid, the attorney can not be compelled to surrender the muniments of title mentioned without prior proof that his fees have been duly satisfied. The courts, in the exercise of their supervisory authority over attorneys as officers of the court, are bound to respect and protect the attorneys' lien as a necessary means to preserve the decorum and respectability of the profession.

2.The Court cited therein the late Justice Laurel's opinion in Rustia vs. Abeto, 10 with regard to the inconvenience that may accrue to the client, and to the client's adversary for that matter as in the case at bar, because of the retaining lien thus exercised by an attorney, that such inconvenience "is the reason and essence of the lien." But as in Rustia, we pointed out that "if it be entirely indispensable for the court to gain possession of the documents that have come to the attorney and are held by him in the course of his employment as counsel, it can require the surrender thereof by requiring the client or claimant to first file proper and adequate security for the lawyers' compensation." 11 This alternative was in fact availed of by respondent Antonio M. Perez, who, upon motion filed on August 10, 1967 alleging that "the properties in question awarded to Antonio Perez have a market value of easily a quarter of a million pesos and the property awarded to Benigno Perez easily has an equal value," secured from the Court its resolution of October 13, 1967 lifting the preliminary

injunction as to Titles Nos. 24927 and 24928 of Manila upon his filing and the approval of a bond in the sum of P25,000.00 answerable for whatever damages may be suffered by petitioner.

 

3.It should be underscored that the retaining lien of an attorney is only a passive right and cannot be actively enforced, It amounts to a mere right to retain the documents and papers as against the client, until the attorney is fully paid, the exception being that funds of the client in the attorney's possession may be applied to the satisfaction of his fees. An attorney's retaining or possessory lien is distinguished from his charging or special lien, which is an attorney's specific lien for compensation on the fund or judgment which he has recovered by means of his professional services for his client in a particular case and is provided in the second part of Rule 138, section 37. 12 Such charging lien covers only the services rendered by an attorney in the action in which the judgment was obtained and takes effect under the cited rule after the attorney shall have caused a statement of his claim of such lien to be entered upon the records of the particular action with written notice thereof to his client and to the adverse party. It presupposes that the attorney has secured a favorable money judgment for his client and grants the attorney "the same right and power over such judgments and executions as his client would have to enforce his lien and, secure the payment of his just fees and disbursements." On the other hand, the attorney's retaining lien is a general lien for the balance of the account between the attorney and his client, and applies to the documents and funds of the client which may come into the attorney's possession in the course of his employment. 13 The attorney's retaining lien attaches to the client's documents and funds in the attorney's possession regardless of the outcome, favorable or adverse, of any cases he may have handled for his client. Called upon at all times to exert utmost zeal with unstinted fidelity in upholding his client's cause and subject to appropriate disciplinary action if he should fail to live up to such exacting standard, the attorney in return is given the assurance through his liens — retaining and charging — that collection of his lawful fees and disbursements is not rendered difficult, if not altogether thwarted, by an unappreciative client. He is thereby given an effective hold on his client to assure payment of his services in keeping with his dignity as an officer of the court.

4.The fact that the client Angela, in the compromise agreement, undertook to transfer her properties covered by the titles in question to

respondents Perezes would not defeat petitioner's retaining lien over the same. Petitioner's position is similar to that of a creditor who holds an attachment lien over the properties, and the client debtor must discharge the lien before he can dispose the properties to a third person free of such lien. In enforcing his retaining lien over the titles, petitioner was enforcing the same against Angela as his former client who was admittedly the owner of the properties and not against her adversaries to whom the client had undertaken to transfer the same under the compromise agreement, without first discharging the attorney's lien by payment of the fees due to petitioner. What obviously was lost sight of by respondent court in ruling that petitioner's lien "should be enforced against his client and not against the Perezes" was that petitioner obtained possession of the titles when ,they did appertain to his then client, Angela. As of that time, petitioner's retaining lien was fastened to the titles and respondent court was bound to respect and protect the same.

The situation would be different where title to the property is the very subject in dispute in the case and the court adjudges the client's adversary to be rightfully en-titled thereto. In such a case, the titles to the property could not be said to be properties of the client, over which the attorney may claim a retaining lien. The attorney may enforce his lien only over properties of his client and not against those of his client's adversary. 14 And the adversary's right as prevailing party to enforce the judgment for the property adjudged to him should not depend on or be prejudiced by the client's ability or refusal to pay the attorney. The Court, however, has seen no need to make any pronouncement on such a hypothetical situation that is not involved in the issues of the present case.

5.The fact that the properties involved were exclusively paraphernal properties of Angela is undisputed. This fact is admitted in respondents' very petition in the proceedings below, (Annex A, petition) where they alleged that Angela was squandering and liquidating her properties for the benefit of a third party with whom she had fallen in love and that the fruits of these properties belong to her conjugal partnership of gains with respondent Antonio M. Perez and are the main source of income of said partnership.

6.It is error for respondents to contend that petitioner has no right to assert a lien over properties that no longer belong to his client Angela but to them. By virtue of the transfers as seemingly agreed to by Angela in November, 1966, after petitioner's discharge as counsel, the

properties thenceforth may be deemed to have been validly transferred to respondents, as stipulated by the contracting parties. And petitioner is in no way interfering with their taking possession of theproperties so transferred to them nor with their enjoyment of the fruits thereof. All that petitioner asserts and exercises is his passive lien of retaining the muniments of title thereto. Such retention impedes the corresponding registration and transfer of the titles to respondents, it is true. But rather than enforcing execution of the compromise agreement against petitioner, who is in no way respondents' adversary and disregarding petitioner's valid retaining lien, respondent court is vested with due authority to enforce the same against Angela as the actual adverse party in interest, by requiring her to produce the titles to effect registration of the covenanted transfers and thereby compelling her to satisfy petitioner's just fees or to file proper and adequate security for their payment. (Matute, supra).

7.Respondents' argument that the compromise agreement was executed since May 2, 1958, over eight years before petitioner's discharge as Angela's counsel and that petitioner as Angela's counsel pursued interests adverse to them and "sought to obtain the discharge of the compromise agreement" 15 (which, in fact, petitioner successfully blocked until his discharge as counsel) — implying thereby that petitioner should be held bound by said compromise agreement — does not change the legal picture. It should be remembered that the said compromise agreement was executed by one Roberto Della Rosa as Angela's attorney-in-fact to settle Civil Case 34626 in the Manila court of first instance; 16 that one of Angela's grounds in denouncing the same was that it was not freely or validly entered into by her representative 17 and that this Court, speaking through Mr. Justice Reyes, rejected respondents' contention that the Manila court should have held that Angela was in estoppel, by the execution and submittal of the compromise agreement, to question the jurisdiction of said courts. 18

Subsequently, when the same compromise agreement was sought to be submitted by respondents in the proceedings below for the limited objective of seeking respondent court's approval thereof, said court dismissed the proceedings on the ground of lack of jurisdiction over the subject-matter, since Civil Case No. 34626 of the Manila court which was presumably to be settled amicably by the compromise agreement was dismissed by final decision of that court as affirmed by

this Court and "there was no more case to be settled by compromise." (supra.)

The only question then appealed to this Court in the second case, No. 19711, was the correctness of respondent court's order of dismissal; if the same was set aside, the case would be remanded to respondent court for trial and hearing on the myriad built-in issues. When pending said appeal and after petitioner's discharge, the same compromise agreement (of dismissed Civil Case No. 34626) was submitted anew in November, 1966, to this Court by her new attorney-in-fact, assisted by newcounsel, manifesting inter alia that Angela "now confirms the (said) compromise agreement," the picture that clearly emerges is that in legal contemplation, Angela and respondents Perezes had then executed a new agreement for the transfer of her said properties to respondents. The transfer of said properties to respondents could in no way be deemed to retroact to over 8 years back on May 2, 1958, when the compromise agreement was originally executed. presumably to settle Case No. 34626 which was eventually dismissed in 1960 for lack of jurisdiction of the Manila court. The transfer of the said properties as provided in the compromise agreement as now confirmed in November, 1966 by Angela and approved by this Court in its Resolution of November 17, 1966 was effective only as of this much later date.

There can be no question, then, that these properties were exclusively Angela's prior to November, 1966 and that respondents could lay no claim thereto by virtue of the transfers provided in the compromise agreement until after its confirmation by Angela and approval in November, 1966; and that respondents' contention that petitioner could not exercise his retaining lien over the titles which had properly come into his possession during his engagement as Angela's counsel long before November, 1966 is untenable.

Even respondent court so understood it correctly, when in its questioned order, it related that "(T)he case has been returned to this Court with a resolution of the appellate tribunal approving the Compromise Agreement. That is now the law of the case. It is as if, after the petition herein had been filed, this Court, acceding to the prayer of the Perezes, had by final order adjudged Tuason to be an incompetent, had decided to dispense with the appointment of a guardian by directly assuming the functions of one, and lastly had approved the Compromise Agreement on behalf of the ward. Questions

of procedural propriety, or of jurisdiction, are no longer open because of the final action taken in the premises by the highest tribunal of the land." 19

 

ACCORDINGLY, the writ of certiorari is granted and the order of respondent court of March 8, 1967 is hereby declared null and void and set aside. With costs against private respondents. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando and Villamor, JJ., concur.

Barredo, J., reserves the filing of his separate dissenting opinion.

SECOND DIVISION

[G.R. No. L-28899. May 30, 1974.]

ALFREDO C. TAJAN, petitioner, vs. HON. VICENTE N. CUSI, JR., Judge, Court of First Instance of Davao, respondent.

Jose P. Arro for petitioner.

Hon. Vicente N. Cusi, Jr. in his own behalf.

D E C I S I O N

ANTONIO, J p:

In this original action of prohibition petitioner Alfredo C. Tajan challenges the authority of respondent Judge of the Court of First Instance of Davao to hear Administrative Case No. 59 of said court involving a disciplinary action initiated against petitioner as a member of the Philippine Bar.

In a letter dated December 5, 1967 addressed to petitioner Alfredo C. Tajan, he was required by respondent Judge to explain within 72 hours

why he should not be removed or suspended from the practice of law for preparing, or causing to be prepared, a petition in court containing factual averments which petitioner knew were false, to wit:

"The records and the transcript of stenographic notes of Misc. Case No. 2968 of this Court show that you prepared and/or caused to be prepared a verified petition for issuance of a new owner's duplicate copy of Transfer Certificate of Title No. T-7312 in favor of Vicente Calongo, alleging therein as grounds therefor, 'That the aforesaid Transfer Certificate was lost by the herein petitioner in his house in Mati, Davao; That in spite of the diligent search of the aforesaid title, the same could not be found and is therefore now presumed to be lose,' and had the petition signed by Atty. Justo Cinco, when you know very well that the owner's duplicate copy has always been in the custody of Municipal Judge Bernardo P. Saludares of the Municipality of Kapalong to whom the same was entrusted by Vicente Calongo, and that as a result of the petition, this Court, through the Hon. Vicente P. Bullecer, Presiding Judge of Branch IV, issued an Order on June 28, 1967, directing the Register of Deeds of the City of Davao to issue a new owner's duplicate of Transfer Certificate of Title No. T-7312.

"In view thereof, you are hereby given seventy-two (72) hours from the receipt hereof to explain why you shall not be removed or suspended from the practice of law."

Petitioner, in answer thereto, wrote a letter to respondent Judge on December 7, 1967 denying the material averments of respondent Judge's letter and explaining the circumstances under which he prepared the aforementioned petition.

Apparently not satisfied with petitioner's answer, respondent Judge had his letter filed and docketed as Adm. Case No. 59 against petitioner, and, together with Adm. Case No. 58 against Atty. Justo Cinco, gave due course thereto and set the same for hearing on January 24 and 25, 1968. At the hearing on January 24, 1968, petitioner questioned, among others, the propriety of the proceedings, contending that since the case was one for disbarment, respondent Judge had no jurisdiction over the person of petitioner as well as the subject matter thereof. Petitioner orally moved that respondent Judge inhibit himself from hearing the administrative case in view of the latter's conflicting positions as prosecutor and judge at the same time. The oral motion was denied.

On February 1, 1968, respondent Judge proceeded to hear the evidence against petitioner. At the said hearing Municipal Judge Saludares testified by more or less reiterating the testimony he previously gave at the hearing of the petition for relief from the order in Misc. Case No. 2968 allowing the issuance of an owner's duplicate of title. The continuation of the hearing was set for April 26, 1968.

On April 15, 1968, petitioner filed the present petition, and on April 17, 1968, this Court gave due course thereto and ordered the issuance of a writ of preliminary injunction upon petitioner's posting of a bond.

Petitioner's thesis is that respondent Judge has no authority on his own motion to hear and determine proceedings for disbarment or suspension of attorneys because jurisdiction thereon is vested exclusively and originally in the Supreme Court and not in courts of first instance. Petitioner also contends that assuming arguendo that courts of first instance have such authority, the procedure outlined in Rule 139 of the Revised Rules of Court should govern the filing and investigation of the complaint.

We find petitioner's contentions without merit.

1.The power to exclude unfit and unworthy members of the legal profession stems from the inherent power of the Supreme Court to regulate the practice of law and the admission of persons to engage in that practice. It is a necessary incident to the proper administration of justice. An attorney-at-law is an officer of the court in the administration of justice and as such he is continually accountable to the Court for the manner in which he exercises the privilege which has been granted to him. His admission to the practice of law is upon the implied condition that his continued enjoyment of the right conferred, is dependent upon his remaining a fit and safe person to exercise it. When it appears by acts of misconduct that he has become unfit to continue with the trust reposed upon him, his right to continue in the enjoyment of that trust and for the enjoyment of the professional privilege accorded to him may and ought to be forfeited. The law accords to the Court of Appeals and the Court of First Instance the power to investigate and suspend members of the bar.

The following provisions of Rule 138 of the Revised Rules of Court are applicable:

"SEC. 28.Suspension of attorney by the Court of Appeals or a Court of First Instance. — Court of Appeals or a Court of First Instance may suspend an attorney from practice for any of the causes named in the last preceding section, and after such suspension such attorney shall not practice his profession until further action of the Supreme Court in the premises.

"SEC. 29.Upon suspension by Court of Appeals or Court of First Instance, further proceedings in Supreme Court. Upon such suspension, the Court of Appeals or the Court of First Instance shall forthwith transmit to the Supreme Court a certified copy of the order of suspension and a full statement of the facts upon which the same was based. Upon the receipt of such certified copy and statement, the Supreme Court shall make full investigation of the facts involved and make such order revoking or extending the suspension, or removing the attorney from his office as such, as the facts warrant.

"SEC. 30.Attorney to be heard before removal or suspension. — No attorney shall be removed or suspended from the practice of his profession, until he has had full opportunity upon reasonable notice to answer the charges against him, to produce witnesses in his own behalf, and to be heard by himself or counsel. But if upon reasonable notice he fails to appear and answer the accusation, the court may proceed to determine the matter ex parte."

These provisions were taken from Sections 22, 23 and 25, respectively, of the Code of Civil Procedure, which read:

"SEC. 22.Suspension of lawyers. — Courts of First Instance may suspend a lawyer from the further practice of his profession for any of the causes named in the last preceding section, and after such suspension such lawyer will not be privileged to practice his profession in any of the courts of the Islands until further action of the Supreme Court in the premises.

"SEC. 23.Proceedings upon suspension. — Upon such suspension the judge of the Court of First Instance ordering the suspension shall forthwith transmit to the Supreme Court a certified copy of the order of suspension and a full statement of the facts upon which the same was based. Upon the receipt of such certified copy and statement, the Supreme Court shall make full investigation of the facts involved and make such order revoking or extending the suspension, or removing the

lawyer permanently from the roll as it shall find the facts to warrant.

"SEC. 25.Hearing of charges. — No lawyer shall be removed from the roll or be suspended from the performance of his profession until he has had full opportunity to answer the charges against him, and to produce witnesses in his own behalf and to be heard by himself and counsel, if he so desires, upon reasonable notice. But if upon reasonable notice the accused fails to appear and answer the accusation, the court may proceed to determine the matter ex parte."

2.It should be observed that proceedings for the disbarment of members of the bar are not in any sense a civil action where there is a plaintiff and the respondent is a defendant. Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are undertaken and prosecuted solely for the public welfare. They are undertaken for the purpose of preserving courts of justice from the official ministration of persons unfit to practice in them. The attorney is called to answer to the court for his conduct as an officer of the court. The complainant or the person who called the attention of the court to the attorney's alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper administration of justice. The court may therefore act upon its own motion and thus be the initiator of the proceedings, because, obviously the court may investigate into the conduct of its own officers.1 Indeed it is not only the right but the duty of the Court to institute upon its own motion, proper proceedings for the suspension or the disbarment of an attorney, when from information submitted to it or of its own knowledge it appears that any attorney has so conducted himself in a case pending before said court as to show that he is wanting in the proper measure of respect for the court of which he is an officer, or is lacking in the good character essential to his continuance as an attorney. This is for the protection of the general public and to promote the purity of the administration of justice.

 

3.Procedural due process requires that no attorney may be "removed or suspended from the practice of his profession, until he has had full opportunity upon reasonable notice to answer the charges against him, to produce witnesses in his own behalf, and to be heard by himself or counsel" (Sec. 30, Rule 138, Revised Rules of Court). 2

While the aforecited Sec. 30 of Rule 138 does not state what is a reasonable notice, Sec. 9 of Rule 139, of the Revised Rules, provides that as far as applicable, the procedure outlined by the preceding sections of Rule 139 "shall govern the filing and investigation of complaints against attorneys in the Court of Appeals or in Courts of First Instance." Section 2 of Rule 139, provides that the respondent lawyer in disciplinary proceedings is granted 10 days from service of a copy of the complaint within which to file his answer. It is desirable, therefore, that a similar period should be granted by the Court of First Instance to attorneys charged before it, for the purpose of uniformity in procedure. We find, however, that in the case at bar, petitioner not only failed to question as unreasonable, the period granted to him by the court within which to answer the complaint, but actually was not substantially prejudiced thereby as he filed his answer to the complaint within the period of 72 hours from receipt thereof.

Petitioner claims that pursuant to Section 9 of Rule 139, which provides that as far as may be applicable, the procedure for the investigation by the Solicitor General of complaints against lawyers referred to said official by the Supreme Court shall govern the filing and investigation of complaints against lawyers in the Court of Appeals and in Courts of First Instance, the Solicitor General, and not respondent Judge, should be the one to conduct the present investigation. Sections 3 to 6 of Rule 139 are not applicable to the investigation of complaints against attorneys in the Court of Appeals and in Courts of First Instance. The investigation by the Solicitor General in Section 8 of Rule 139 refers to complaints referred to said office by this Court and not to investigations in suspension proceedings before the Court of Appeals or Courts of First Instance, because Sections 28 to 30 of Rule 138 authorize said courts and confer upon them the power to conduct the investigation themselves, subject to another and final investigation by the Supreme Court in the event of suspension of the lawyer. On the basis of the certified copy of the order of suspension and the statement of the facts upon which the same is based, required by Section 29 of Rule 138, the Supreme Court "shall make full investigation of the facts involved and make such order revoking or extending the suspension or removing the attorney from his office as such, as the facts warrant." In other words, under such circumstances the intervention of the Solicitor General would, therefore, be unnecessary.

WHEREFORE, the present petition is denied, and the writ of preliminary injunction previously issued by this Court is ordered dissolved, with costs against petitioner.

Zaldivar (Chairman), Fernando, Barredo, Fernandez and Aquino, JJ., concur.

EN BANC

[A.M. No. R-705-RTJ. August 23, 1989.]

LIGAYA GONZALES-AUSTRIA, LEONILA FUERTES and EDGARDO SERVANDO, complainants, vs. JUDGE EMMANUEL M. ABAYA, RTC, Br. 51, Puerto Princesa City and ANNABELLE CARDENAS, respondents.

[A.M. No. R-698-P. August 23, 1989.]

JUDGE EMMANUEL M. ABAYA, complainant, vs. LIGAYA GONZALES-AUSTRIA, Branch Clerk of Court, RTC, Br. 52, Puerto Princesa City,respondent.

[A.C. No. 2909. August 23, 1989.]

JUDGE EMMANUEL M. ABAYA, complainant, vs. LIGAYA GONZALES-AUSTRIA, Branch Clerk of Court, RTC, Br. 52, Puerto Princesa City,respondent.

SYLLABUS

1.LEGAL AND JUDICIAL ETHICS; JUDGES; ESTAFA THRU FALSIFICATION OF PUBLIC OR OFFICIAL DOCUMENT; CASE AT BAR. — We find the charges against Judge Abaya and Annabelle Cardenas to be supported by substantial evidence. Especially damaging evidence sufficient to support complainants' theory that JudgeAbaya appropriated the money for himself.

2.ID.; ID.; GROSS DISHONESTY AND CORRUPTION; ABSENCE OF IMPROPER MOTIVE OF COMPLAINANT IN IMPUTING CHARGES. — We quote with approval Justice Herrera's perceptive reasons for giving full faith and credence to Mrs. Fuertes' testimony: "We find no improper motive as to why Mrs. Fuertes, a school teacher, would impute such a serious offense against a judge unless it be the truth. Mrs. Fuertes is not a disgruntled litigant. Judge Abaya having denied the petition for bail of the suspected killer of Mrs. Fuertes' son, she should, under normal circumstances be grateful to the Judge. Yet she charged him with a serious offense, and travelled all the way from Palawan to Manila to testify against the Judge. Under the circumstances, We cannot accept Judge Abaya's contention that Mrs. Fuertes perjured herself just to accommodate the vengeance-ful ire of Atty. Austria against Judge Abaya. That would be contrary to the ordinary promptings of men.

3.ID.; ID.; ILLEGAL EXACTION; CHARGE SO DEMEANING TO AN RTC JUDGE THAT IT REQUIRES MORE THAN A BARE ALLEGATION TO SUSTAIN IT. — While the investigating officer, Justice Herrera observed that both Servando and Jamora "testified in a natural and straightforward, albeit in an angry manner without attempting to conceal their contempt for Judge Abaya," he concluded that "the evidence in this regard would be unable to withstand judicial scrutiny for want of ample corroboration. It would simply be the word of one against a judge." We are in accord with this observation, for indeed, the charge if true is so demeaning to an RTC judge that it requires more than a bare allegation to sustain it. In this regard, we give respondent Judge the benefit of the doubt.

4.ID.; ID.; PURPOSE OF EXISTENCE OF OFFICE. — The office of a judge exists for one solemn end — to promote justice by administering it fairly and impartially.

5.ID.; ID.; VISIBLE REPRESENTATION OF THE LAW AND OF JUSTICE. — The judge is the visible representation of the law and of justice. From him, the people draw their will and awareness to obey the law. For him then to transgress the highest ideals of justice and public service for personal gain is indeed a demoralizing example constituting a valid cause for disenchantment and loss of confidence in the judiciary as well as in the civil service system.

6.ID.; ID.; UNWORTHINESS OF THE HONOR ATTACHED TO OFFICE; FORFEITURE OF RETIREMENT BENEFITS EXCEPT EARNED LEAVE

CREDITS OF A RETIRED JUDGE. — By these acts, Judge Abaya has demonstrated his unfitness and unworthiness of the honor and perquisites attached to his office. As he had previously resigned, we hereby order the forfeiture of his retirement benefits, except earned leave credits, as recommended by the investigating officer Justice Herrera.

7.ID.; ATTORNEYS; BRANCH CLERK OF COURT; FORGING OF JUDGE'S SIGNATURE IN A PROBATION ORDER; PENALTY. — The complaints for dishonesty and grave misconduct and for disbarment against Atty. Ligaya Gonzales-Austria, then Clerk of Court of Branch 52, RTC Palawan, stem from her act of having allegedly forged the signature of Judge Abaya in a probation order dated April 22, 1986 in Criminal Case No. 4999 of said court entitled "People of the Philippines vs. Leonardo Cruz" for attempted homicide. Atty. Ligaya Gonzales-Austria admits to having signed the probation order and of having promulgated it, but explains that these were done with the knowledge and consent of Judge Abaya, who had asked her to prepare orders and decisions in Branch 52 to ease his load of presiding over two (2) branches. We find Atty. Austria's misconduct as Branch Clerk of Court to affect her qualification as a member of the Bar, for precisely as a lawyer, she ought to have known the illegality of the act complained of. The resignation of Atty. Ligaya Gonzales-Austria as Branch Clerk of Court IS ACCEPTED as of December 31, 1987 and any and all benefits accruing during her government service are declared forfeited, except her earned leave credits. Her SUSPENSION as a member of the Bar for a period of one year from the finality of this decision is further decreed.

8.ID.; ID.; GENERALLY SPEAKING, A LAWYER HOLDING A GOVERNMENT OFFICE MAY NOT BE DISCIPLINED AS A MEMBER OF THE BAR FOR MISCONDUCT IN THE DISCHARGED OF HIS DUTIES. — Generally speaking, a lawyer who holds a government office may not be disciplined as a member of the bar for misconduct in the discharge of his duties as a government official. However, if that misconduct as a government official is of such a character as to affect his qualification as a lawyer or to show moral delinquency, then he may be disciplined as a member of the bar on such ground.

D E C I S I O N

FERNAN, C.J p:

In a complaint under oath dated July 21, 1986, docketed as Adm. Matter No. R-705-RTJ, Atty. Ligaya Gonzales-Austria, then Branch Clerk of Court of the Regional Trial Court (RTC), Branch 52, Puerto Princesa City, 1 Mrs. Leonila Fuertes and Mr. Edgardo Servando charged Judge Emmanuel M. Abaya, then Presiding Judge of RTC, Branch 51, Puerto Princesa City 2 with:

"1.Estafa through falsification of public or official documents, by verifying official hours rendered by one employee in the person of Miss Anabelle Cardenas who never reported for duty from August 1983 to May 1984 by encashing and receiving salaries of said Miss Cardenas through forgery of payee's signature in the treasury warrants, thus deceiving the government and defrauding the Government treasury of a big amount of money;

"2.Gross dishonesty and corruption by soliciting, demanding, receiving bribed (sic) money in exchange for favorable resolutions and decisions from different litigants in Branch 52, where said Judge was temporarily assigned from November 1984 to April 1986 and of which one of the undersigned complainant (sic), LIGAYA GONZALES-AUSTRIA is the Branch Clerk of Court;

"3.Illegal exaction of portion of the salaries of his subordinate Edgardo Servando as part and condition of his continued employment in Branch 51, where Judge Abaya is the presiding judge." 3

Judge Abaya denied all these charges in his comment dated August 29, 1986, filed in compliance with the Court Resolution of August 12, 1986. He asserted that these charges were concocted in retaliation against the administrative complaint docketed as Adm. Matter No. 698-P he earlier filed on July 18, 1986 against one of his accusers, Atty. Ligaya Gonzales-Austria for dishonesty and grave misconduct in having forged his signature in a probation order in Criminal Case No. 4995 of the RTC, Branch 52, Puerto Princesa, entitled "People of the Philippines vs. Leonardo Cruz," for attempted murder. Adm. Matter No. 698-P was followed by a petition dated August 5, 1986 docketed as Adm. Case No. 2909 for the disbarment of Atty. Ligaya Gonzales-Austria based on the same alleged offense.

After Atty. Ligaya Gonzales-Austria had filed her comment on the charges against her, the Court resolved to consolidate these related cases.

On October 28, 1986, the Court granted the motion of the complainants in Adm. Matter No. R-705-RTJ to amend their complaint by including Annabelle Cardenas as defendant in the charge of Estafa thru Falsification of Public Documents. It was averred therein that the initial exclusion was due to oversight and that it was never intended to exclude her as a co-principal.

By resolution of December 11, 1986, the cases were referred to Court of Appeals Justice Oscar M. Herrera for investigation, report and recommendation. Based on the evidence presented by the parties, Justice Herrera finds the respondents guilty of the charges against them and thereby recommends:

"1.The FORFEITURE of retirement benefits of Judge Abaya except earned leave credits;

"2.The REMOVAL of Annabelle Cardenas from office as Court Stenographer;

"3.A one-year SUSPENSION from office as Attorney of Atty. Ligaya G. Austria in AC-2909." 4

We now consider these well-thought out recommendations.

I.ADMINISTRATIVE MATTER NO. R-705-RTJ:

a.Estafa thru Falsification of Public or Official Documents by Judge Abaya and Annabelle Cardenas. — The gravamen of this charge is that Annabelle Cardenas who was appointed as Stenographic Reporter of Branch 51, RTC, Palawan in August 1983 upon the recommendation of Judge Abaya as Presiding Judge therein, was a ghost employee from August 1983 to May 1984 as she never reported for work during said period, being then employed at Princess Tours Rafols Hotel as a tourist guide. Notwithstanding, with her knowledge and consent, Judge Abaya verified as true and correct her daily time records as stenographic reporter purportedly showing that she rendered service and incurred no absences or tardiness from August 9 to September 30, 1983 and rendered service for the period from October 1, 1983 to May 31, 1984 and was granted leave of absence

from March 14 to 30, 1984 and from April 23 to 27, 1984. Thus, she was paid her salaries corresponding to the periods allegedly worked. Some of the Treasury Warrants covering her salaries were, according to complainants, encashed by Judge Abaya by forging Annabelle Cardenas' signature.

 

Both Judge Abaya and Annabelle Cardenas vehemently denied the charges, countering that the latter worked as stenographic reporter from August 1983 to May 31, 1984.

We find the charges against Judge Abaya and Annabelle Cardenas to be supported by substantial evidence. Especially damaging to the pretensions of the respondents that Annabelle Cardenas rendered service as stenographic reporter during the period under consideration are the school records of the Holy Trinity College, showing that Annabelle Cardenas was attending school in the first semester of school year 1983-1984 from 2:00 P.M. to 8:15 P.M. 5 While she claimed to have been permitted by her teacher to attend her typing and stenography classes after office hours, the school records reveal that she has other subjects such as Business Organization and Management (3 units), Ten Commandments (3 units), Sining ng Pakikipagtalastas (3 units) and Accounting for Single Proprietorship (3 units), her attendance in which can be safely concluded from the passing grades she received in said subjects. Equally damaging to respondents' assertion are the Daily Time Records of Princess Tours 6 showing that Annabelle Cardenas acted as tourist guide on 43 working days when she was supposedly rendering service as stenographic reporter. Her explanation that her name was placed on the daily time record as team leader, although she did not actually conduct the tours reflected herein is too shallow to merit belief.

It is indeed quite intriguing that during the ten-month period under consideration, the court calendar for Branch 51 never once carried Annabelle Cardenas' name to signify her attendance at a court session. Moreover, she could not produce any single order, transcript or official stenographic notes that had been taken by her in any case, civil or criminal. All she presented were so-called practice notes.

Judge Abaya stated in his comment that it was Annabelle Cardenas who was collecting her salary "without intervention from your respondent." 7 It was however proved that Judge Abaya collected

Annabelle Cardenas' salaries on several occasions, as in fact, said Annabelle Cardenas even executed a special power of attorney in his favor authorizing him not only to collect the treasury warrants but to endorse and negotiate them as well. 8 Be that as it may, we find the evidence insufficient on the one hand to overthrow the explanation of respondents that Judge Abaya collected Annabelle Cardenas' salaries in Manila so that he could bring the same to Candon, Ilocos Sur for delivery to her mother, who is a good friend of the Judge; and on the other hand to support complainants' theory that Judge Abayaappropriated the money for himself.

b.Charges of Gross Dishonesty and Corruption by Soliciting, Demanding and Receiving Bribe Money against Judge Abaya. — The act complained of was allegedly committed by Judge Abaya while temporarily assigned to Branch 52, RTC-Palawan vice Judge Jose G. Genilo, Jr., who was temporarily assigned to Batangas City. It must be recalled that complainant Atty. Ligaya Gonzales-Austria was then Branch Clerk of Court of Branch 52.

It was alleged that Judge Abaya denied the application for bail of the accused in Criminal Case No. 5304 entitled "People vs. Henry Arias and Fernando Oniot" for murder, in consideration of the sum of P2,000.00 given by Mrs. Leonila Fuertes, complainant and mother of the victim in the aforesaid case.

Mrs. Leonila Fuertes, a school teacher, testified that she went to Branch 52 at about 5:00 P.M. on August 13, 1985 in response to a telephone call from court stenographer Nelly Vicente that Judge Abaya wanted to see her personally. Nelly Vicente referred her to Carmencita P. Baloco, the officer-in-charge who then called Judge Abaya from the other branch. Judge Abaya directed her to the adjoining courtroom where he told her, "Ang kaso ninyo ay medyo tagilid, 50-50 dahil walang eyewitness." (Your case is shaky with only a 50-50 chance of winning because there is no eyewitness.) She retorted that there was an eyewitness but the Judge insisted that there was none because the supposed eyewitness had his back turned when her son was stabbed. Nonetheless, the Judge assured her that he would be able to do something about it ("Ngunit lahat ay magagawan ko ng paraan dahil ako ang nakakaalam sa mga decision dito"). When Mrs. Fuertes asked the Judge what he wanted, he told her that he has a problem. "Kailangan ko ng pera Limang Libo at idedeny ko ang bail na mga acusado" (I need Five Thousand Pesos and I will deny bail to the accused). Mrs. Fuertes expressed puzzlement on why she had to give

money when she was the aggrieved party, but the Judge cut her off by saying he needed the money badly before he leaves for Manila. Mrs. Fuertes answered that she would have to consult her brothers-in-law about the matter. The Judge told her to see him at his house at 7:00 o'clock in the evening.

Mrs. Fuertes consulted her brothers-in-law as well as the then prosecuting fiscal, now Judge Angel R. Miclat about the matter. Although they were all against the idea of her acceding to the Judge's demand, she delivered the amount of P1,200.00 to Judge Abaya on August 15, 1985 in his chambers, telling him that that was all she could afford. Judge Abaya looked dissatisfied but said "Never mind" and that he would just contact her at the next trial for the final judgment. 9

Roselyn Teologo, stenographic reporter of Branch 52 corroborated that portion of Mrs. Fuertes' testimony relating to the phone call of Nelly Vicente to Mrs. Fuertes, the latter's arrival on August 13, 1985 at Branch 52 and Mrs. Fuertes having been closeted with Judge Abaya inside the courtroom for about 20 minutes. She further testified that Carmen Baloco who eavesdropped on the Judge and Mrs. Fuertes' conversation remarked, "Grabe ito, nanghihingi ng pera." (This is terrible, he is asking money.) She added that when Judge Abaya emerged from the courtroom, he instructed her not to tell anybody that Mrs. Fuertes had been there. 10

Additional corroborative evidence was given by Judge Angel R. Miclat, then acting City Fiscal for Puerto Princesa City handling Criminal Case No. 5304. He testified that Mrs. Fuertes came to him in August of 1986 to inform him that Judge Abaya was asking P5,000.00 from her so that the bail application of the accused would be denied. While he advised her to file a complaint against Judge Abaya, he was informed later on that Mrs. Fuertes gave Judge Abaya not the amount being asked, but only about P1,200.00. 11

Likewise submitted in evidence by the complainants were the entries in Mrs. Fuertes' diary, thus:

"August 13, 1985 called by Judge Abaya to see him after office hours. He asked me for my case was 50-50. 12

"August 15 I went to town to see Baby Francisco, gave P2,000 and I brought the money to Judge." 13

"July 2, 1986 Judge Abaya with companion Rufo Gonzales and Celia Fernandez. Purpose — they convinced me to sign my name in the affidavit stating that I will deny the previous affidavit I made stated that Judge asked from me certain amount and his request was granted. But I did not sign and asked me to see him in town at the residence of Menchie his niece personally nakiusap kay Baby upang maideny ang affidavit ko through Atty. Austria ay nakiusap pa rin. He is talking cay Nanette na idinay ko." 13

Judge Abaya denied the solicitation as well as the receipt of money from Mrs. Fuertes He alleged that the bail application of the accused in Criminal Case No. 5304 was denied, not because of any outside interference, but because the evidence of guilt was strong. He surmised that Mrs. Fuertes and Nelly Vicente had been pressured by Atty. Ligaya Gonzales-Austria into testifying against him out of sheer vindictiveness and that Mrs. Fuertes might have been blaming him for the delay in the resolution of the criminal case against her son's alleged killers. LexLib

We quote with approval Justice Herrera's perceptive reasons for giving full faith and credence to Mrs. Fuertes' testimony:

"We find no improper motive as to why Mrs. Fuertes, a school teacher, would impute such a serious offense against a judge unless it be the truth. Mrs. Fuertes is not a disgruntled litigant. Judge Abaya having denied the petition for bail of the suspected killer of Mrs. Fuertes' son, she should, under normal circumstances be grateful to the Judge. Yet she charged him with a serious offense, and travelled all the way from Palawan to Manila to testify against the Judge. Under the circumstances, We cannot accept Judge Abaya's contention that Mrs. Fuertes perjured herself just to accommodate the vengeance-ful ire of Atty. Austria against Judge Abaya. That would be contrary to the ordinary promptings of men.

"Upon the other hand, the testimony of Mrs. Fuertes is too rich in details brought out on cross-examination which cannot simply be swept aside as mere fabrications. They find support in collateral but highly significant circumstances pointed to by Mrs. Teologo, such as (1) the visible presence of Mrs. Fuertes in the courtroom in conference with Judge Abaya at 5:00 o'clock in the afternoon of August 15, (should be 13) 1985; and (2) the highly credible testimony of Judge Miclat on the report made to him by Mrs. Fuertes, as then acting City Fiscal, on the

solicitation of Judge Abaya. It certainly cannot be said that Mrs. Fuertes merely concocted her story at the time regarding the solicitation of Judge Abaya in connection with the pending case of the suspected killers of her son. There was absolutely no motive for her to do so." 14

c.Charge of Illegal Exaction against Judge Abaya. — It is alleged that Judge Abaya exacted portions of the salaries of two (2) employees in Branch 51 of the Palawan RTC as a condition for their continued employment. Edgardo Servando, one of the complainants herein, and who was appointed stenographer on September 3, 1984 upon the recommendation of Judge Abaya, declared that such recommendation was made in consideration of his agreement to give Judge Abaya P1,000.00 from his initial salary and thereafter a monthly amount of P400.00, which undertaking he complied with. However, in December when the Judge before leaving for Manila for the Christmas vacation asked him for P1,000.00 from his fringe benefits, medical allowance and year-end bonus, he was unable to comply as he did not then have cash, the payment of said benefits having been in checks. A week later, he received a notice of termination effective at the close of business hours on December 31, 1984 from the Supreme Court upon the recommendation of Judge Abaya. 15

 

Nilo Jamora, a former stenographer of Branch 51 testified that since his employment in said Branch, Judge Abaya had been exacting from him P350.00 every payday, which exaction ceased only in March 1986 when Atty. Ligaya Gonzales-Austria filed her charges against Judge Abaya. He further stated that when he refused to retract his charges against Judge Abaya before the Sangguniang Panlalawigan despite the Judge's offer of money, the latter demoted him to process server. 16

Judge Abaya likewise denied this charge, labelling the same as sheer vindictiveness due to Servando's termination and Jamora's demotion, fanned by Atty. Austria's proddings. He insists that the personnel action taken on Servando and Jamora was due to their inefficiency.

While the investigating officer, Justice Herrera observed that both Servando and Jamora "testified in a natural and straightforward, albeit in an angry manner without attempting to conceal their contempt for Judge Abaya," 17 he concluded that "the evidence in this regard would

be unable to withstand judicial scrutiny for want of ample corroboration. It would simply be the word of one against a judge." 18

We are in accord with this observation, for indeed, the charge if true is so demeaning to an RTC judge that it requires more than a bare allegation to sustain it. In this regard, we give respondent Judge the benefit of the doubt.

In summation, we find Judge Emmanuel M. Abaya guilty of grave and serious misconduct affecting his integrity and moral character which would have warranted his dismissal from the service had his resignation not been accepted.

The office of a judge exists for one solemn end — to promote justice by administering it fairly and impartially. In regarding justice as a commodity to be sold at a price, Judge Abaya betrayed the very essence of magistracy. In complicity with Annabelle Cardenas, he likewise abused the trust and confidence of the people, shortchanging them of services undoubtedly vital to the speedy administration of justice.

The judge is the visible representation of the law and of justice. From him, the people draw their will and awareness to obey the law. 19 For him then to transgress the highest ideals of justice and public service for personal gain is indeed a demoralizing example constituting a valid cause for disenchantment and loss of confidence in the judiciary as well as in the civil service system.

By these acts, Judge Abaya has demonstrated his unfitness and unworthiness of the honor and perquisites attached to his office. As he had previously resigned, we hereby order the forfeiture of his retirement benefits, except earned leave credits, as recommended by the investigating officer Justice Herrera.

We further mete out to Annabelle Cardenas in consequence of her grave misconduct as above-described the penalty of removal from office as Court Stenographer with prejudice to her re-appointment to the Judiciary.

II.A.M. No. R-698-P and Adm. Case No. 2909.

The complaints for dishonesty and grave misconduct in A.M. No. R-698-P and for disbarment in Adm. Case No. 2909 against Atty.

Ligaya Gonzales-Austria, then Clerk of Court of Branch 52, RTC Palawan, stem from her act of having allegedly forged the signature of Judge Abaya in a probation order dated April 22, 1986 in Criminal Case No. 4999 of said court entitled "People of the Philippines vs. Leonardo Cruz" for attempted homicide.

Atty. Ligaya Gonzales-Austria admits to having signed the probation order and of having promulgated it, but explains that these were done with the knowledge and consent of Judge Abaya, who had asked her to prepare orders and decisions in Branch 52 to ease his load of presiding over two (2) branches. She adverts to JudgeAbaya's order of November 4, 1985 which granted accused Leonardo Cruz' motion for reconsideration of the order denying probation. This order, which carried certain conditions, set the promulgation of the probation order on January 16, 1986 at 8:00 o'clock in the morning. In the meantime, Judge Abaya requested Atty. Austria to prepare the probation order with the day and month in blank for the signature of the Judge.

On January 16, 1986, Judge Abaya was absent so the promulgation was reset to April 16, 1986. On the latter date, the provincial warden failed to bring the accused to court, hence the promulgation of the probation order was again reset to June 3, 1986, with Judge Abaya allegedly giving instructions before he left for Manila to promulgate said order even in his absence should the probationer Leonardo Cruz arrive in court.

On April 21, 1986, Leonardo Cruz came and begged that the probation order be promulgated the following day, April 22, 1986 as he had to leave for Coron in the same pumpboat that brought him to Puerto Princesa and he had no money to sustain him up to the time the Judge arrives from Manila. As requested, the promulgation was set on April 22, 1986, only for Atty. Austria to discover that Judge Abaya had neglected to sign the probation order. In view of the predicament of Leonardo Cruz and the authority granted to her by Judge Abaya, Atty. Austria signed Judge Abaya's name to the probation order and promulgated it.

Atty. Austria justifies her action under the theory of agency (Art. 1881 of the Civil Code) 20 that having been granted full authority to promulgate the probation order, she necessarily had the authority to sign the Judge's name if the need arose. She further maintains that as Judge Abaya never complained about the alleged forgery, he is deemed to have ratified it and is now estopped from questioning her

authority. Lastly, she compares the probation order to a writ of execution which is usually done by the Clerk of Court. 21

Respondent's arguments are quite novel but unpersuasive. As thoroughly explained by Justice Herrera: LexLib

". . . her explanation that she is the one preparing decisions and orders in Branch 52 with the knowledge and consent of Judge Abaya during the time that the latter was acting as Presiding Judge of said branch and that she was directed to promulgate the probation order in favor of Leonardo Cruz only to discover that the judge overlooked to sign the order, even if true, is not a valid justification for her to simulate the signature of Judge Abaya in the probation order. This is patently illegal. As a lawyer and branch clerk of court, she ought to know that under no circumstances is her act of signing the name of the judge permissible. She could have probably released the order with the statement that it is 'upon orders of the judge' or 'by authority of the judge' but she could not under any circumstance make it appear as she did in this case that the Judge signed the order when in fact he did not. The duties of the clerk of court in the absence of any express direction of the Judge is well defined under Section 5, Rule 136 of the Rules of Court which reads:

'Sec. 5.Duties of the Clerk in the absence or by direction of the judge. — In the absence of the judge, the clerk may perform all the duties of the judge in receiving applications, petitions, inventories, reports, and the issuance of all orders and notices that follow as a matter of course under these rules, and may also, when directed so to do by the judge, receive the accounts of executors, administrators, guardians, trustees, and receivers, and all evidence relating to them, or to the settlement of the estates of deceased persons, or to guardianship, trusteeships, or receiverships, and forthwith transmit such reports, accounts, and evidence to the judge, together with his findings in relation to the same, if the judge shall direct him to make findings and include the same in his report."

"Signing orders in the name of, and simulating the signature of the judge is not one of them.

"Atty. Austria's theory of agency that she lawfully acted as agent of the Judge is wholly devoid of merit. The judicial power vested in a judge and its exercise is strictly personal to the Judge because of, and by reason of his highest qualification, and can never be the subject of agency. That would not only be contrary to law, but also subversive of public order and public policy. Nor could her void act in signing the name of the judge be validly ratified by the latter. JudgeAbaya himself is bereft of any power to authorize the clerk of court to sign his name in his official capacity in a matter pending adjudication before him. The issuance of the order in question is strictly judicial and is exclusively vested in the judge which is beyond his authority to delegate." 22

Generally speaking, a lawyer who holds a government office may not be disciplined as a member of the bar for misconduct in the discharge of his duties as a government official. 23 However, if that misconduct as a government official is of such a character as to affect his qualification as a lawyer or to show moral delinquency, then he may be disciplined as a member of the bar on such ground. 24

We find Atty. Austria's misconduct as Branch Clerk of Court to affect her qualification as a member of the Bar, for precisely as a lawyer, she ought to have known the illegality of the act complained of.  cdrep

WHEREFORE, finding the respondents Judge Emmanuel M. Abaya, Annabelle Cardenas and Atty. Ligaya Gonzales-Austria guilty as charged, except that of illegal exaction against Judge Abaya, the Court hereby orders:

1.In Adm. Matter No. R-705-RTJ, the FORFEITURE of the retirement benefits of Judge Emmanuel M. Abaya, except his earned leave credits; and the DISMISSAL from office of Annabelle Cardenas as Stenographic Reporter with prejudice to her reappointment to the Judiciary; and,

2.In Adm. Matter No. R-698-P and Adm. Case No. 2909, the resignation of Atty. Ligaya Gonzales-Austria as Branch Clerk of Court IS ACCEPTED as of December 31, 1987 and any and all benefits accruing during her government service are declared forfeited, except her earned leave credits. Her SUSPENSION as a member of the Bar for a period of one year from the finality of this decision is further decreed.

 

Let copies of this resolution be furnished the Ombudsman for the filing of appropriate criminal charges against respondents if warranted.

Copies of this resolution shall be attached to the respondents' respective personal records.

Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

EN BANC

[A.C. No. RTJ-92-845. September 3, 1993.]

JOEY CUARESMA AND ABRAHAM CUARESMA, complainants, vs. JUDGE RESTITUTO AGUILAR, respondent.

D E C I S I O N

PUNO, J p:

The facts show that in an Information dated November 15, 1991, the Provincial Prosecutor of Occidental Mindoro, Gorgonio D. Olarte, charged Florencio Banite with the murder of Daniel Acosta, a relative of herein complainants. The Information, which carried no recommendation for bail, was docketed as Criminal Case No. 2-648 in Branch 44 of the RTC of Mamburao, Occidental Mindoro presided by the Honorable Venancio M. Tarriela. LibLex

The accused Banite was arraigned on January 3, 1992 where he pleaded not guilty. His case was set for pre-trial and trial on February 24, 25 and 26, 1992. It appears, however, that on January 28, 1992, Prosecutor Olarte amended the Information against Banite to Homicide and recommended a bail of P20,000.00, without leave of court. Judge Tarriela ordered Prosecutor Olarte to explain his action considering that the accused Acosta had already been arraigned.

On February 4, 1992, Mrs. Agripina Agbayari Zubiri, Supervising Steno-Reporter IV at the Office of the Provincial Prosecutor, San Jose, Occidental Mindoro, went to see the respondent judge, the Hon. Restituto L. Aguilar, in his chambers. Respondent judge is the Executive and Presiding Judge of Branch 45, RTC, San Jose, Occidental Mindoro. Mrs. Zubiri informed the respondent judge that she was sent by Prosecutor Olarte to request for the release of accused Banite on a bail of P20,000.00. All pertinent papers, including the Property Bail Bond, the Order approving the bond and directing the release of the accused, etc., were already prepared for the signature of the respondent judge. On the same day, respondent judge signed and issued the Order dated February 4, 1992 approving the property bond, and the Order directing the annotation of said undertaking as lien with the Register of Deeds.

On the strength of the above Orders, accused Banite was released.

Complainants, Joey and Abraham Cuaresma, charged respondent judge with grave abuse of authority. They claim that respondent judge has no right to order the release of Banite since the latter's case was being tried in the sala of Judge Tarriela. They also aver that the release of Banite has endangered their lives. Respondent judge justifies his action under Section 14(a), Rule 114 of the Rules of Court. He also invokes good faith.

We find merit in the complaint.

The reliance of respondent judge on Section 14(a), Rule 114 is misplaced. We quote said section:

"Bail in the amount fixed may be filed with the court where the case is pending, or, in the absence or unavailability of the judge thereof, with another branch of the same court within the province or city. If the accused is arrested in a province, city or municipality other than where the case is pending, bail may be filed also with any regional trial court of said place, or if no judge thereof is available, with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein."  LLpr

The case against accused Banite was filed in Branch 44, presided by the Judge Tarriela. Respondent judge who presides in Branch 45, had no power to act on the request to release on bail accused Banite. The record does not show that at the time respondent judge ordered

Banite's release, Judge Tarriela was absent or unavailable and could not have acted on the request. It was also irregular for respondent judge to entertain the request considering that it did not appear that a formal motion had been filed by the accused to that effect. Indeed, respondent judge did not even examine the records of the case as he merely signed the Orders allegedly prepared by Prosecutor Olarte. His indifference to duty prevented him from discovering that at the time he ordered the release of accused Banite, the Information charging the latter with Murder with no recommendation for bail had not been properly amended.

This Court has not been wanting in its warnings that judges should endeavor to maintain at all times the confidence and high respect accorded to those who wield the gavel of justice. Circular No. 13, dated July 1, 1987, enjoins judges "to conduct themselves strictly in accordance with the mandate of existing laws and the Code of Judicial Conduct that they be exemplars in their communities and the living personification of justice and the Rule of Law." In Ramirez vs. Corpus-Macandog (Adm. Matter No. R-359-RTJ, September 26, 1986, 144 SCRA 462), this court stressed:

"Judges are required to observe due care in the performance of their official duties. They are likewise charged with the knowledge of internal rules and procedures, especially those which relate to the scope of their authority. They are duty bound to observe and abide by these rules and procedures, designed as they are, primarily to ensure the orderly administration of justice."

Respondent judge's action shows such lack of familiarity with our laws, rules and regulations as to undermine the public confidence in the integrity of our courts. LexLib

PREMISES CONSIDERED, respondent Judge Restituto Aguilar, Executive Judge and Presiding Judge of the Regional Trial Court, Branch 45, San Jose, Occidental Mindoro, is hereby ordered to pay a fine of two thousand pesos (P2,000.00). Further, he is admonished to exercise greater care and prudence in the performance of his official duties for repetition of the same or similar act or omission in the future shall be dealt with more severely by this Court.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo, Quiason and Vitug, JJ., concur.

THIRD DIVISION

[A.C. No. 5333. October 18, 2000.]

(A.C. No. CBD 371)

ROSA YAP PARAS, complainant, vs. ATTY. JUSTO DE JESUS PARAS, respondent.

Angara Abello Concepcion Regala & Cruz for complainant.

SYNOPSIS

A disbarment case was filed by Rosa Y. Paras against her husband, Atty. Justo de Jesus Paras, charging the latter for forging her signatures in the bank in loan documents and for immorality for siring a child with another woman. After the parties submitted their pleadings and other pieces of evidence, the Commission on Bar Discipline (CBD) of the IBP found respondent guilty as charged and recommended his suspension from the practice of law.

The Supreme Court upheld the findings and recommendations of the CBD, finding the evidence against the respondent overwhelming. Continued possession of good moral character is essential to remain in the practice of law. Disbarment, however, should never be decreed where any lesser penalty, such as temporary suspension, could accomplish the desired end.

SYLLABUS

1.LEGAL AND JUDICIAL ETHICS; ATTORNEYS; PRACTICE OF LAW; REQUIRES CONTINUED POSSESSION OF GOOD MORAL CHARACTER; CASE AT BAR. — It is a time-honored rule that good moral character is not only a condition precedent to admission to the practice of law. Its continued possession is also essential for remaining in the practice of

law (People vs. Tunda, 181 SCRA 692 [1990]; Leda vs. Tabang, 206 SCRA 395 [1992]). In the case at hand, respondent has fallen below the moral bar when he forged his wife's signature in the bank loan documents, and, sired a daughter with a woman other than his wife. IaSCTE

2.ID.; ID.; DISBARMENT; DECREED ONLY IN A SERIOUS CASE OF MISCONDUCT. — However, the power to disbar must be exercised with great caution, and only in a clear case of misconduct that seriously affects the standing and character of the lawyer as an officer of the Court and as a member of the bar (Tapucar vs. Tapucar, Adm. Case No. 4148, July 30, 1998). Disbarment should never be decreed where any lesser penalty, such as temporary suspension, could accomplish the end desired (Resurrecion vs. Sayson, 300 SCRA 129 [1998]).

D E C I S I O N

MELO, J p:

This has reference to a case for disbarment initiated by complainant Rosa Yap Paras against her husband, Atty. Justo de Jesus Paras. The parties exchanged tirades and barbs in their copious pleadings, hurling invectives, cutting remarks, and insults at each other. Reduced to its essentials, Rosa Paras charged her husband with dishonesty and falsification of public documents, harassment and intimidation, and immorality for siring a child with another woman. Respondent denied the allegations, contending that his wife, in cahoots with her family, is out to destroy and strip him of his share in their multi-million peso conjugal assets. cDTHIE

The parties come from wealthy families in Negros Oriental. They were married on May 21, 1964 and have two grown-up children. They have vast sugarlands and other businesses. Respondent was a Municipal Judge for 14 years and served as Mayor in their town for 2 terms during the administration of President Aquino. Complainant is a businesswoman. Sometime in 1988, their marriage fell apart, when due to "marital strain that has developed through the years," respondent left his wife and children to live with his mother and sister in Dumaguete City and thence started his law practice. Complainant, in the meantime, filed a case for the dissolution of their marriage, which case is still pending in court.

The complaint charged:

DISHONESTY, FALSIFICATION and FRAUD

. . . respondent obtained loans from certain banks in the name of complainant by counterfeiting complainant's signature, falsely making it appear that complainant was the applicant for said loans. Thereafter, he carted away and misappropriated the proceeds of the loans.

. . . to guarantee the above loans, respondent mortgaged some personal properties belonging to the conjugal partnership without the consent of complainant.

GROSSLY IMMORAL CONDUCT ANDCONCUBINAGE

Respondent is . . . engaged in the immoral and criminal act of concubinage as he maintained an illicit relationship with one Ms. Jocelyn A. Ching, siring an illegitimate child with her while married to complainant.

UNETHICAL AND UNPROFESSIONALCONDUCT

Respondent abused courts of justice and misused his legal skills to frighten, harass and intimidate all those who take a position diametrically adverse to his sinister plans by unethically filing complaints and other pleadings against them. He utilized strategies to obstruct justice.

OBSTRUCTION OF JUSTICE

(Respondent) utilized strategies to obstruct justice. In the criminal actions initiated against him, respondent used his legal skills not to prove his innocence but to derail all the proceedings.

(Complaint, Rollo, p. 2)

In his Answer, respondent interposed the following defenses:

(1)On the Charge of Falsification of Public Documents:

That during the sugarboom in the 1970's, his wife executed in his favor a Special Power of Attorney to negotiate for an agricultural or crop loan authorizing him "to borrow money and apply for and secure any agricultural or crop loan for sugar cane from the Bais Rural Bank, Bais City . . ." (Rollo, Annex "3", p. 262)

(2)On the Charge of Forgery:

That the Report of the National Bureau of Investigation which found that "the questioned signatures (referring to the alleged forged signatures of complainant) and the standard sample signatures JUSTO J. PARAS were written by one and the same person. . ."(Annex "B" of the Complaint, Rollo, p. 26) was doctored, and that his wife filed against him a string of cases for falsification of public documents because he intends to disinherit his children and bequeath his inchoate share in the conjugal properties to his own mother.

(3)On the Charge of Grossly Immoral Conduct and Concubinage:

That this is a malicious accusation fabricated by his brother-in-law, Atty. Francisco D. Yap to disqualify him from getting any share in the conjugal assets. He cites the dismissal of the complaint for concubinage filed against him by his wife before the City Prosecutor of Negros Oriental as proof of his innocence.

Respondent, however, admits that he, his mother and sister, are solicitous and hospitable to his alleged concubine, Ms. Jocelyn Ching, and her daughter, Cyndee Rose (named after his own deceased daughter), by allowing them to stay in their house and giving them some financial assistance, because they pity Ms. Ching, a secretary in his law office, who was deserted by her boyfriend after getting her pregnant.

(4)On the Charge of Obstruction of Justice:

That "the legal remedies pursued by (him) in defense and offense are legitimate courses of action done by an embattled lawyer."

The Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines investigated the complaint against respondent, summarizing the causes of action as follows:

(1)Falsification of complainant's signature and misuse of conjugal assets; and

(2)Immorality and criminal acts of concubinage with one Ms. Ma. Jocelyn A. Ching (for) siring an illegitimate child with her while married to complainant, and, abandonment of his own family.

(Rollo, Report of the IBP, p. 34)

No actual hearing was conducted as the parties agreed to merely submit their respective memoranda, depositions, and other pieces of evidence attached to their pleadings.

Thereafter, the CBD found respondent guilty as charged and recommended:

(1)Respondent's suspension from the practice of law for three (3) months on the first charge; and

(2)Respondent's indefinite suspension from the practice of law on the second charge.

(ibid., p. 57)

The CBD held that the dismissal of the criminal cases against respondent for falsification and use of falsified documents (Criminal Case No. 11768) and for concubinage (I.S. No. 93-578) will not bar the filing of an administrative case for disbarment against him. In a criminal case, proof beyond reasonable doubt is required for conviction, while in an administrative complaint, only a preponderance of evidence is necessary.

The CBD gave credence to the NBI Report that "the questioned signatures (referring to the signatures appearing in the loan agreements, contracts of mortgage, etc.) and the standard sample signatures of respondent were written by one and the same person." This affirms the allegation of complainant Rosa Yap Paras that her husband forged her signatures in those instruments. Respondent denies this but his denial was unsubstantiated and is, therefore, self-serving.

In finding respondent liable for Immorality, the CBD relied heavily on the uncontroverted sworn affidavit-statements of respondent's children

and three other eyewitnesses to respondent's illicit affair with Ms. Jocelyn Ching. For a better appreciation of their statements, their affidavits are hereby reproduced in full. Thusly,

"I, DAHLIA Y. PARAS, of legal age, single, resident of Bindoy, Negros Oriental, but presently living in Dumaguete City, after being duly sworn hereby depose and say:

1.I am a nurse by profession. I finished my BSN degree at the College of Nursing, Silliman University.

2.My mother is Rosa Yap Paras and my father Justo J. Paras. My father has left the family home in Bindoy and now lives at his mother's house at San Jose Ext., Dumaguete City.

3.My father has a "kabit" or concubine by the name of Ma. Jocelyn Ching. They have a child named Cyndee Rose, who was delivered at the Silliman University Hospital Medical Center on July 19, 1990.

4.Jocelyn used to be the secretary of my father and Atty. Melchor Arboleda when they practice law together in 1988 to 1989. Their relationship started in 1989. When she became pregnant, my father rented an apartment for her at the Amigo Subdivision, Dumaguete City.

5.Following delivery of the baby, my father built a house for Jocelyn in Maayong Tubig, Dauin, Negros Oriental. My father spend time there often with Jocelyn and their child.

 

6.I used to visit my father at San Jose Extension these past years, and almost every time I was there, I would see Jocelyn, sitting, watching TV, serving coffee in my father's law office, and one time, she was washing my father's clothes.

7.I first saw their child Cyndee Rose in 1992, about early May, at San Jose Extension. I was there to ask for my allowance. He was there at the time, and when I looked at Cyndee Rose closely, I became convinced that she was my father's daughter with Jocelyn.

8.Incidentally, I had an elder sister also named Cindy Rose (now deceased).

9.In September 1992 when I went to visit my father, I saw toys and child's clothes in my father's room.

10.Whenever, I saw Jocelyn at San Jose Extension, I wanted to talk to her or be alone with her, but she would deliberately avoid me. I could see that she was hiding something from me." p. 109, Records.

SUPPLEMENTAL AFFIDAVIT

xxx xxx xxx

1.. . . sometime during the period of April-September, 1992, I made several visits to my father at his mother's house in San Jose Extension, Dumaguete City, where he had moved after he left our home in Bindoy;

2.That these visits were made on different times and different days of the week;

3.That most of my visits, I would meet a woman who was also living at my father's place. This woman is now known to me to be Ma. Jocelyn Ching;

4.That my basis for observing that Ms. Ching was living in my father's house is that during my visits, whether during office hours or after office hours, I would meet her at my father's place, not his office; she was wearing house clothes and slippers, such as skimpy clothes, shorts and T-shirt, not street or office clothes; she was generally unkempt, not made up for work or going out; on one occasion, I even saw her, washing my father's clothes as well as a small child's clothing; and she conducted herself around the house in the manner of someone who lived there; cIHDaE

5.That on one of my visits, I confirmed that Ms. Ching was living with my father from Josie Vailoces, who was then a working student living at my father's place;

6.Ms. Vailoces subsequently confirmed under oath the fact that my father and Ms. Jocelyn Ching were living together as husband and wife at my father's place in a deposition taken in connection with Civil Case No. 10613, RTC-Dumaguete City, Branch 30, the Honorable Enrique C. Garovillo, presiding. A copy of the transcript of the

deposition of Ms. Vailoces is already part of the record of this case. For emphasis, photocopies of the pertinent portion of the written deposition of Josie Vailoces is hereto attached as Annexes "A" and "A-1". p. 111, Records

Respondent's son has this to say:

"I, RHOUEL Y. PARAS, 15 years old, single, resident of Bindoy, Negros Oriental, but presently living in Dumaguete City, after being duly sworn according to law, depose and say:

1.I am a high school student at the Holy Cross High School, Dumaguete City.

2.My mother is Rosa Yap Paras, and my father Justo J. Paras, a lawyer.

3.My father has left our home in Bindoy, and now lives at his mother's house in San Jose Extension, Dumaguete City. He is not giving us support any more.

4.However, from October 1991 to December 1992, I was getting my allowance of P50.00 a week. I would go to their house at San Jose Extension and personally ask him for it.

5.In October 1992, between 11:30 AM and 1:00 PM, I went to San Jose Extension for my weekly allowance. I asked Josephus, an adopted son of my father's sister, if my father was around. Josephus said my father was in his room.

6.So I went direct to his room and because the door was not locked, I entered the room without knocking. There I saw my father lying in bed side by side with a woman. He was only wearing a brief. The woman was wearing shorts and T-shirt.

7.They both appeared scared upon seeing me. My father hurriedly gave me P100.00 and I left immediately because I felt bad and embarrassed.

8.Before that incident, I used to see the woman at my father's house in San Jose Extension. Every time I went to see my father, she was also there.

9.I later came to know that she was Ms. Jocelyn Ching, and that she was my father's "kabit" or concubine.

10.I am no longer getting my weekly allowance from my father." p. 112, Records

Added to the foregoing sworn statements of respondent's children is the damaging statement under oath of Virgilio Kabrisante who was respondent's secretary when respondent was mayor of Bindoy, Negros Oriental which reads as follows:

"I, VIRGILIO V. KABRISANTE, of legal age, married, Filipino, a resident of Malaga, Bindoy, Negros Oriental, after having been sworn in accordance with law, do hereby depose and state that:

1.I personally know Justo J. Paras, having been his secretary during his incumbency as Mayor of Bindoy, Negros Oriental. In fact, through the latter's recommendation and intercession, I was later on appointed as OIC Mayor of the same town from December 1986 to January 1987.

2.When Justo J. Paras decided to practice law in Dumaguete City, I became his personal aide and performed various chores for the same. As his personal aide, I stayed in the same house and room with the latter.

3.Sometime in January 1989, Justo J. Paras confided to me that he felt attracted to my lady friend named Ma. Jocelyn A. Ching. He then requested me to invite the latter to a dinner date at Chin Loong Restaurant.

4.Conveying the invitation which was accepted by Ma. Jocelyn Ching, the latter, Justo J. Paras and myself then had dinner at the above-mentioned restaurant.

5.At the behest of Justo J. Paras, I invited Ma. Jocelyn A. Ching, on several occasions, always to a picnic at a beach in Dauin, Negros Oriental. Said invitations were always accepted by the latter.

6.At each of the above-mentioned picnics, I observed that Justo J. Paras and Ma. Jocelyn A. Ching had become more and more intimate with each other.

7.Sometime in March 1989, at around 7:00 o'clock in the evening on a Friday, I accompanied Justo J. Paras to the area in front of the Silliman University Medical Center, where he said he was going to meet someone.

8.After waiting for a few minutes, Ma. Jocelyn Ching arrived and immediately boarded at the back seat of the Sakbayan vehicle I was driving for Justo J. Paras. The latter then requested me to drive both of them (Justo Paras and Ma. Jocelyn A. Ching) to Honeybee Motel somewhere in Sibulan, Negros Oriental.

9.When we arrived there, Justo J. Paras asked me to wait for them outside the room, while he and Ma. Jocelyn A. Ching entered the said room.

10.I waited outside the room for about two (2) hours after which the two of them emerged from the room. We then proceeded to Chin Loong to eat supper.

11.After eating supper, we dropped Ma. Jocelyn A. Ching off in front of the Dumaguete City Cockpit.

12.This meeting was repeated two more times, at the same place and always on a Friday.

13.On April 3, 1988, I went home to Bindoy and stopped working for Justo Paras." pp. 56-57, Records.

SUPPLEMENTAL AFFIDAVIT

xxx xxx xxx

1.Sometime in May 1989, I returned to Dumaguete City to look for a job, having been jobless since I left Dumaguete City to go home to Bindoy, Negros Oriental.

2.While looking for a job, I stayed at the house where my friend, Bernard Dejillo was staying at Mangnao, Dumaguete City. My friend Bernard Dejillo was occupying a room at the second floor of the said house which he shared with me.

3.Sometime in the last week of May 1989, in the course of my job hunting, I met Justo J. Paras. Having not seen each other for some time, we talked for a while, discussing

matters about the barangay elections in Bindoy, Negros Oriental. EDACSa

4.When our discussion was finished, Justo J. Paras asked me where I was staying, to which I answered that I was staying at the aforementioned house. He then requested me to find out if there was an available room at the said house which he could rent with Ma. Jocelyn A. Ching. I told him that I would have to ask my friend Bernard Dejillo about the matter.

5.When I arrived at the house that evening, I asked my friend Bernard Dejillo about the matter, to which the latter signified his approval. He told me that a room at the first floor of the same house was available for rental to Justo Paras and Ma. Jocelyn A. Ching.

6.The next day, I immediately informed Justo J. Paras of Bernard Dejillo's approval of his request.

7.Sometime in the first week of June 1989, Ma. Jocelyn Ching moved in to the room she had rented at the first floor of the house I was also staying at.

8.Almost every night thereafter, Justo J. Paras would come to the house and stay overnight. When he came at night Justo J. Paras and I would converse and while conversing, drink a bottle of Tanduay Rum. Oftentimes, Ma. Jocelyn Ching would join in our conversation.

9.After we finish drinking and talking, Justo J. Paras and Ma. Jocelyn Ching would enter the room rented and sleep there, while I would also go upstairs to my room.

10.The next morning I could always observe Justo J. Paras came out of said room and depart from the house.

11.The coming of Justo J. Paras to the house I was staying ceased after about one (1) month when they transferred to another house.

12.I myself left the house and returned to Bindoy, Negros Oriental some time in June 1989.

13.Sometime in January 1993, on a Saturday at about noontime, I went to the house of Justo J. Paras to consult

him about a Kabataang Barangay matter involving my son. When I arrived at his house, I noticed that the same was closed and there was no one there.

14.Needing to consult him about the above-mentioned matter, I proceeded to the resthouse of Justo J. Paras located at Maayong Tubig, Dauin, Negros Oriental.

15.When I arrived at the said resthouse, Justo J. Paras was not there but the person in charge of the said resthouse informed me that Justo J. Paras was at his house at Barangay Maayong Tubig, Dauin, Negros Oriental. The same person also gave me directions so that I could locate the house of Justo J. Paras he referred to earlier.

 

16.With the help of the directions given by said person, I was able to locate the house of Justo J. Paras.

17.At the doorway of the said house, I called out if anybody was home while knocking on the door.

18.After a few seconds, Ma. Jocelyn Ching opened the door. Upon seeing the latter, I asked her if Justo J. Paras was home. She then let me in the house and told me to sit down and wait for a while. She then proceeded to a room.

19.A few minutes later, Justo J. Paras came out of the same room and sat down near me. I noticed that the latter had just woke up from a nap.

20.We then started to talk about the matter involving my son and sometime later, Ma. Jocelyn Ching served us coffee.

21.While we were talking and drinking coffee I saw a little girl, about three (3) years old, walking around the sala, whom I later came to know as Cyndee Rose, the daughter of Justo J. Paras and Ma. Jocelyn Ching.

22.After our conversation was finished, Justo J. Paras told me to see him at this office at San Jose Extension, Dumaguete City, the following Monday to discuss the matter some more.

23.I then bid them goodbye and went home to Bindoy, Negros Oriental.

24.I am executing this affidavit as a supplement to my affidavit dated 22 July 1993." pp. 58-60, Records

(Ibid., pp. 44-52)

The CBD likewise gave credence to the sworn affidavits and the deposition of two other witnesses, namely, Salvador de Jesus, a former repairman of the Paras' household, and, Josie Vailoces, a working student and former ward of the Paras' family, who both gave personal accounts of the illicit relationship between respondent and Jocelyn Ching, which led to the birth of Cyndee Rose. De Jesus swore that while doing repair works in the Paras' household he observed Ms. Ching and Cyndee Rose practically living in the Paras' house (p. 85, Rollo, Annex "H"). Vailoces, on the other hand, deposed that she was asked by respondent Paras to deliver money to Ms. Ching for the payment of the hospital bill after she gave birth to Cyndee Rose. Vailoces was also asked by respondent to procure Cyndee Rose Paras' baptismal certificate after the latter was baptized in the house of respondent; she further testified that in said baptismal certificate, respondent appears as the father of Cyndee Rose which explains why the latter is using the surname "Paras." (p. 87, Annex "1", Rollo)

The findings and the recommendations of the CBD are substantiated by the evidentiary record.

ON THE CHARGE OF FALSIFICATIONOF COMPLAINANT'S SIGNATURE

The handwriting examination conducted by the National Bureau of Investigation on the signatures of complainant Rosa Yap Paras and respondent Justo de Jesus Paras vis-a-vis the questioned signature "Rosa Y. Paras" appearing in the questioned bank loan documents, contracts of mortgage and other related instrument, yielded the following results:

CONCLUSION:

1.The questioned and the standard sample signatures JUSTO J. PARAS were written by one and the same person.

2.The questioned and the standard sample signatures ROSA YAP PARAS were not written by one and the same person.

(Annex "B", Rollo, p. 26, italics ours;)

The NBI did not make a categorical statement that respondent forged the signatures of complainant. However, an analysis of the above findings lead to no other conclusion than that the questioned or falsified signatures of complainant Rosa Y. Paras were authored by respondent as said falsified signatures were the same as the sample signatures of respondent.

To explain this anomaly, respondent presented a Special Power of Attorney (SPA) executed in his favor by complainant to negotiate for an agricultural or crop loan from the Bais Rural Bank of Bais City. Instead of exculpating respondent, the presence of the SPA places him in hot water. For if he was so authorized to obtain loans from the banks, then why did he have to falsify his wife's signatures in the bank loan documents? The purpose of an SPA is to especially authorize the attorney-in-fact to sign for and on behalf of the principal using his own name.

ON THE CHARGE OF IMMORALITYAND CONCUBINAGE

The evidence against respondent is overwhelming. The affidavit statements of his children and three other persons who used to work with him and have witnessed the acts indicative of his infidelity more than satisfy this Court that respondent has strayed from the marital path. The baptismal certificate of Cyndee Rose Paras where respondent was named as the father of the child (Annex "J", Rollo, p. 108); his naming the child after his deceased first-born daughter Cyndee Rose; and his allowing Jocelyn Ching and the child to live in their house in Dumaguete City bolster the allegation that respondent is carrying on an illicit affair with Ms. Ching, the mother of his illegitimate child.

It is a time-honored rule that good moral character is not only a condition precedent to admission to the practice of law. Its continued possession is also essential for remaining in the practice of law (People vs. Tunda, 181 SCRA 692 [1990]; Leda vs. Tabang, 206 SCRA 395 [1992]). In the case at hand, respondent has fallen below the moral bar when he forged his wife's signature in the bank loan documents, and,

sired a daughter with a woman other than his wife. However, the power to disbar must be exercised with great caution, and only in a clear case of misconduct that seriously affects the standing and character of the lawyer as an officer of the Court and as a member of the bar (Tapucar vs. Tapucar, Adm. Case No. 4148, July 30, 1998). Disbarment should never be decreed where any lesser penalty, such as temporary suspension, could accomplish the end desired (Resurrecion vs. Sayson, 300 SCRA 129 [1998]).

In the light of the foregoing, respondent is hereby SUSPENDED from the practice of law for SIX (6) MONTHS on the charge of falsifying his wife's signature in bank documents and other related loan instruments; and for ONE (1) YEAR from the practice of law on the charges of immorality and abandonment of his own family, the penalties to be served simultaneously. Let notice of this decision be spread in respondent's record as an attorney, and notice of the same served on the Integrated Bar of the Philippines and on the Office of the Court Administrator for circulation to all the courts concerned.

SO ORDERED.

Vitug, Panganiban, Purisima and Gonzaga-Reyes, JJ., concur.

 

SECOND DIVISION

[A.C. No. 284 . July 29, 1977.]

HECTOR FULE, ET AL. petitioners, vs. SOLON F. CORDERO, respondent.

R E S O L U T I O N

SANTOS, J p:

Respondent, Solon F. Cordero, a member of the Philippine Bar and Auxiliary Justice of the Peace of San Pablo City stands charged — by his first cousins, namely, Attorneys Hector C. Fule and Conrado C. Fule

(brothers), the latter being the Justice of the Peace of Alaminos, Laguna — with violation of his attorney's oath, allegedly by blackmailing the Fule brothers.

The alleged blackmail consists in respondent's threat to file criminal and administrative charges against Conrado C. Fule for alleged falsification of public documents, namely, Daily Time Records, or Municipal Form No. 45 (A), if Hector C. Fule would not desist from pursuing his application for the position of solicitor in the Solicitor General's Office, Department of Justice, because respondent was himself interested in said position. 1 Despite the threats made by respondent, however, petitioner, Hector Fule, pursued his application for the position of solicitor in the Solicitor General's Office, and was, in fact, appointed solicitor. 2 Whereupon, respondent made good his threat and filed five (5) separate administrative charges with the Department of Justice and a criminal complaint on five (5) counts with the Office of the Provincial Fiscal of Laguna, against Conrado C. Fule, i.e., Estafa Through Falsification of Public Documents, allegedly for having falsified daily time records or Municipal Form No. 45 (A), a form prescribed by the General Auditing Office for certification of services rendered by members of the judiciary, for the purpose of entitling them to the salaries claimed for a particular period of time. 3 A series of charges and countercharges were thereafter filed by respondent against petitioners and vice-versa, ranging from criminal cases to administrative charges, coupled with an exchange of unsavory vilifications. Cdpr

Due to the close inter-relationship of the events that had made up the case at bar and the aforementioned charges, the present administrative case filed by the Fule brothers against respondent had to await the developments and the outcome of the charges filed by him against Conrado C. Fule. 4 In due time, the criminal complaint filed against Conrado C. Fule by Solon F. Cordero was dismissed for insufficiency of evidence 5 by the Investigating Fiscal, after preliminary investigation, in a resolution dated October 11, 1960, which is now under appeal to the Secretary of Justice. 6 The administrative charges resulted in admonition to Municipal Judge Conrado C. Fule. 7

After the issues in this case were joined, the same was referred to the Solicitor General for investigation, report and recommendation in a resolution of this Court dated June 9, 1961. 8 In pursuance thereof, the Solicitor General's Office - after suspension of this proceeding as adverted to above - submitted its Report and Recommendation dated

June 14, 1977, consisting of two (2) pages. The Solicitor General recommends that, in view of the death of respondent, Solon F. Cordero, on January 9, 1977 (as reported by Cordero's counsel) the instant petition should be dismissed as moot and academic. 9

WHEREFORE, let this administrative case be, as it is hereby, DISMISSED. The Solicitor General is directed to forward to this Court a copy of the death certificate of Atty. Solon F. Cordero. Let a copy of this resolution be entered in the Bar record of deceased respondent.  LibLex

Fernando (Chairman), Barredo, Antonio, Aquino and Concepcion, Jr., JJ., concur.

EN BANC

[A.C. No. 2756. December 18, 1990.]

PRUDENTIAL BANK, petitioner, vs. BENJAMIN M. GRECIA, respondent.

Ruperto G. Martin for respondent.

R E S O L U T I O N

PER CURIAM, p:

In a Decision, dated 12 November 1987, this Court, upon finding that respondent Benjamin Grecia had "proven himself unfit to continue in the pursuit of his profession," ordered his disbarment.

Respondent Grecia thereafter sought a reconsideration of the said Resolution on 14 December 1987. This was denied in the Resolution of 12 January 1988 for lack of merit, the issues raised having previously been duly considered and passed upon.

Undaunted, respondent filed, on 10 February 1988 a "Petition for Redress and Exoneration and for Voluntary Inhibition," praying that the decision of 12 November 1987, and the resolution of the denial of the Motion for Reconsideration of the said decision be set aside and a new

one entered dismissing the administrative complaint and exonerating him.

We denied his plea in a Resolution dated 15 March 1988, it being in the nature of a second Motion for Reconsideration filed without leave of court, besides the fact that the first Motion for Reconsideration filed by him had already been denied with finality on January 12, 1988.  Cdpr

This notwithstanding, respondent filed another Motion requesting an extension of time to file a Motion for Reconsideration, this time, of the Resolution of 15 March 1988 simultaneously praying that the Bar Confidant furnish him with a certified true copy of the Solicitor General's Report and Recommendation. These requests were denied in the Resolution of 5 May 1988.

Seven months later, or on 29 December 1988, respondent, through counsel, filed a "Petition for Reinstatement as a Member of the Bar," this time praying for "justice, leniency, understanding and mercy from the Members of this Honorable Court," citing several cases of lawyers previously disbarred but who were eventually reinstated. Respondent averred that he comes to court "on bended knees asking for the same kindness, understanding, liberality and leniency."

This was once again denied in the Resolution of 15 June 1989 the same being substantially a repetition of the Motion for Reconsideration of the Decision of 12 November 1987, which was already denied with finality in the Resolution dated 12 January 1988.

A "Motion for Leave to File Testimonials to Support Petition for Reinstatement" was filed on 11 May 1989 which Motion was accompanied by various testimonials from prominent members of the Bar urging the Court to grant his plea for reinstatement, which the Court Noted in its Resolution of 30 May 1989.

Unrelenting in his efforts, respondent Grecia, on 13 July 1989, filed a "Motion for Reconsideration of Resolution Denying Petition for Reinstatement." Varying the tenor of his previous submissions, respondent in this instance:

". . . begs to apologize to this Honorable Supreme Court for repeating in his petition for reinstatement what he already alleged in his Motion for reconsideration of the decision of this Honorable Court dated 12 November 1987. There petition was

due to his confused state of mind caused by the tremendous impact of the denial of his motion for reconsideration of the aforesaid decision.

To rectify the error committed, and with the kind permission and leave of this Honorable Court, respondent is hereby openly and unequivocally retracting, withdrawing and abandoning all the statements and arguments of, and allusions and references to, the previously denied motion for reconsideration which have been alleged or used in his petition for reinstatement.

In consequence, respondent respectfully prays that this Honorable Court ignore them and treat the petition for reinstatement of respondent, as one limited to, and mainly and exclusively predicated on, his plea for leniency, understanding, liberality, mercy and judicial clemency."

Unmoved, we denied the motion with finality in our Resolution of 19 October 1989 there being no compelling reason raised to warrant reconsideration of the questioned Resolution.  cdphil

On 24 November 1989, respondent filed a "Motion for Permission to Reiterate his Petition for Reinstatement" stating that he humbly begs permission to plead again for its forgiveness and clemency; that he has suffered the harsh and supreme sanction of disbarment for two long years now; that this is his first offense; that he solemnly declares that he has fully realized his mistake and the gravity of his offense for which he is fully repentant and learned the most bitter lesson of his life to such an extent that he solemnly vows never to commit any offense again; that his sufferance of the extreme sanction of disbarment has changed him for the better; that he had fully purged himself in the proper and irreproachable manner and that he prays that he be forgiven and pardoned by this Court. The Motion was denied with finality in the Resolution of 21 December 1989.

On 21 May 1990, Mrs. Maria Luisa B. Grecia, wife of respondent wrote a letter addressed to the Chief Justice and Associate Justices of this Court stating that she has long wanted to write and if it need be, on bended knees, to ask the Court sincerely to forgive her husband and permit him to practice his profession; that it is not only he who is suffering the anguish and shame caused by his disbarment but also his children and herself; that it is now two and a half (2 1/2) years since her husband has been disbarred and completely without any means to support his family; that their youngest daughter may altogether have

to stop studying; that during these years, her husband has deeply repented and is now very humble and prayerful and has reformed for the better and that she pleads that her husband be forgiven and reinstated as a lawyer. The letter was Noted for the time being in the Resolution of 28 June 1990.

On 17 October 1990, the Quezon City Chapter of the Integrated Bar, submitted to the Bar Confidant for the Court's consideration, Resolution No. 90-057, adopted on 9 October 1990, praying that the Court extend its judicial clemency to respondent Grecia and reinstate him as a member of the Philippine Bar, reasoning among others, that he has been "sufficiently punished," has reformed and rehabilitated himself, and can again be entrusted with the exercise of the noble profession of law.

In a letter, dated 21 November 1990, addressed to the Chief Justice and Associate Justices of the Court, respondent Grecia pleaded anew that once the Court restores him to the practice of law, he "unreservedly bind(s)" himself "henceforth to act and behave carefully as a worthy member of the Philippine Bar."

Without overlooking the charge which caused respondent's disbarment, reinstatement may now be warranted, predicated on the following objective and criterion:

"The sole object of the Court upon an application for reinstatement to practice, by one previously disbarred, is to determine whether or not the applicant has satisfied and convinced the Court by positive evidence that the effort he has made toward the rehabilitation of his character has been successful, and, therefore, he is entitled to be readmitted to a profession which is intrinsically an office of trust. (In Re: Rusiana, Adm. Case No. 270, 29 March 1974, 56 SCRA 240).  Cdpr

"The criterion for reinstatement has been stated as follows: Whether or not the applicant shall be reinstated rests to a great extent in the sound discretion of the court. The court action will depend, generally speaking, on whether or not it decides that the public interest in the orderly and impartial administration of justice will be conserved by the applicant's participation therein in the capacity of an attorney and counselor at law. The applicant must, like a candidate for admission to the Bar, satisfy the Court that he is a person of good moral character — a fit and proper person to practice law. The Court will take into

consideration the applicant's character and standing prior to the disbarment, the nature and character of the charge for which he was disbarred, his conduct subsequent to the disbarment, and the time that has elapsed between the disbarment and the application for reinstatement." (5 Am. Jur., Sec. 301, p. 443, cited in In Re: Juan T. Publico, February 20, 1981, 102 SCRA 721).

The testimonials submitted in respondent's favor are from well-respected and prominent members of the legal community namely: Former Chief Justice of the Supreme Court Querube Makalintal, Senate President Jovito R. Salonga, Former Senator Ambrosio Padilla, former Presiding Justice of the Court of Appeals, Lourdes Paredes San Diego, former Supreme Court Justice Ruperto Martin, Senator Neptali Gonzales, Attys. Dakila F. Castro, Camilo Quiason, Gregorio Purugganan, Teofilo F. Manalo (Past Governor, Integrated Bar of the Philippines, 1975-1977), Manuel T. Molina and Diosdado P. Peralta, President of the Capitol Bar Association. All their testimonials attest to respondent's good moral character and to the fact that he has mended his ways towards the rehabilitation of his character such that his reinstatement "will not only be an act of compassion but also of justice" (Records, Vol. II, Testimonial of former Supreme Court Justice Querube Makalintal).

Cognizant, therefore, "that the power to discipline, especially if amounting to disbarment, should be exercised on the preservative and not on the vindictive principle," (In re Juan T. Publico, supra), we heed respondent's plea for reinstatement. His expiation subsequent to his disbarment; his realization of his mistake and the gravity of his offense; the testimonials from exemplary members of the Bar as to his fitness to resume the practice of law; and his solemn pledge to the Court, that if his disbarment is lifted, he will always closely and faithfully abide by the ideals, canons and ethics of the legal profession, call for this affirmative response. prcd

ACCORDINGLY, respondent Benjamin M. Grecia is hereby ordered READMITTED to membership in the Bar.

 

SO ORDERED.