Archive for the ‘legal ethics’ Category

VDA. DE ROBOSA V. ATTY. MENDOZA, ET AL.

AC No. 6056, Sept. 9, 2015

By: Karen P. Lustica

 

FACTS:

 

On February 20, 1993, upon the behest of Atty. Mendoza, Felicisima signed a Contract for Service3prepared by Atty. Mendoza. The said contract stipulated that in the event of a favorable CENRO or LMB resolution, Felicisima shall convey to Atty. Mendoza one-fifth (1/5) of the lands subject of the application or one-fifth (1/5) of the proceeds should the same property be sold.

The CENRO and the LMB proceedings resulted in the dismissal of Felicisima and her siblings’ application for Lot No. 2489 and the partial grant of their application for Lot No. 3771. Subsequently, Felicisima and her siblings sold the land to Greenfield Corporation (Greenfield) and received the amount of P2,000,000.00 as down payment.

On October 15, 1998, Atty. Mendoza, joined by his wife Filomena S. Mendoza, filed in the RTC claiming that except for the amount of P40,000.00, Felicisima and her siblings refused to pay his attorney’s fees equivalent to 1/5 of the proceeds of the sale of the land as stipulated in the Contract for Service.

In their Answer with Counterclaim, Felicisima and her siblings denied the “existence and authenticity of the x x x Contract of Service.”

The RTC rendered judgment in favor of Atty. Mendoza and against Felicisima and her siblings.

Since no opposition was filed by Felicisima and her siblings, the RTC granted the said motion and issued a writ of execution, which resulted in the levy and eventual transfer of Felicisima’s properties in favor of Atty. Mendoza as the highest bidder in the execution sale.

Felicisima filed a complaint-affidavit for disbarment before this Court against Atty. Mendoza for allegedly deceiving her into signing the Contract for Service by taking advantage of her illiteracy, and against Atty. Navarro for dereliction of duty in handling her case before the CA causing her properties to be levied and sold at public auction.
Felicisima alleges that Atty. Mendoza made her sign a document at her house without the presence of her siblings. Said document (Contract for Service) was written in English which she does not understand. She claims that Atty. Mendoza told her the document will shield her from her siblings’ possible future claims on the property because she alone is entitled to the property as her siblings did not help her in processing the application for original registration. She was not given a copy of the said document and she discovered only during the trial that Atty. Mendoza anchors his claim over Vs of proceeds from the sale of the land awarded by the CENRO and LMB on the same document she had signed.

As to Atty. Navarro, Felicisima claims that her case before the CA was neglected despite repeated follow-ups on her part. She also points out that Atty. Navarro abandoned her case before the RTC when the latter failed to file an opposition to Atty. Mendoza’s motion for execution pending appeal, which resulted in the loss of her properties.

In his Comment, Atty. Mendoza avers that he has been a lawyer since 1954 and retired sometime in 1983 due to partial disability.

Atty. Navarro pleads for mercy and compassion if he had somehow committed some lapses considering that this is the first time he was charged administratively in his almost 39 years of law practice and that he is too willing to take complainant’s cause if not for such apparent miscommunication between a lawyer and his client.

IBP – Atty. Mendoza guilty of taking advantage of Felicisima’s ignorance just to have the Contract for Service signed. Atty. Mendoza violated Canon 17 of the Code of Professional Responsibility (CPR) that a lawyer owes fidelity to the cause of his client and shall be mindful of the trust and confidence reposed on him, as well as Rule 20.04, Canon 20 which exhorts lawyers to avoid controversies with clients concerning matters of compensation and to resort to judicial action only to prevent imposition, injustice or fraud.

As to Atty. Navarro, the Investigating Commissioner held that his participation in politics affected his law practice and caused him to forget about Felicisima’s caseThe Investigating Commissioner further said that Atty. Navarro’s acts showed lack of diligence in violation of Canon 18 of the CPR and his Lawyer’s Oath.

Suspension for two (2) years from the practice of law.

Modified – suspension from two (2) years to six (6) months.

 

ISSUE:

WON disbarment or suspension for the two lawyers

 

HELD:

  1. Dismissal of case against Attorney Mendoza
  2. Suspension for Attorney Navarro

 

RATIO:

  1. The Court has consistently held that in suspension or disbarment proceedings against lawyers, the lawyer enjoys the presumption of innocence, and the burden of proof rests upon the complainant to prove the allegations in his complaint. The evidence required in suspension or disbarment proceedings is preponderance of evidence. In case the evidence of the parties are equally balanced, the equipoise doctrine mandates a decision in favor of the respondent. For the Court to exercise its disciplinary powers, the case against the respondent must be established by clear, convincing and satisfactory proof.

    Contract for Service with Atty. Mendoza
    a contract for contingent fees

    On the basis of the evidence, the Court finds no ground to support Felicisima’s claim that she did not enter into any written agreement with the plaintiff, Juan Mendoza, for the latter to render legal services and the corresponding compensation therefor as set forth in the Contract of Service. However, the Court finds that the amounts received by the plaintiff Juan Mendoza from defendant Felicisima Mendoza during the course of his legal services for the twenty hearings in the amount of P1,300.00 per hearing or a total of P26,000.00 should also be deducted from his claim of P1,384,000.00 leaving an unpaid balance of PI,258,000.00 due plaintiff Juan Mendoza for legal services rendered the defendants.hanrobleslaw

Given the above finding of the RTC that Felicisima in fact entered into a contract for legal services with Atty. Mendoza, thus debunking her defense in her Answer denying the existence and authenticity of the said document, it appears that Felicisima raised the issue of voluntariness of her signing the Contract for Service only during the hearing when she supposedly testified that, having reached only Grade IV and trusting completely her lawyer cousin, Atty. Mendoza who told her that the document will protect her from the claims of her siblings, she actually signed the Contract for Service The RTC, however, found the evidence adduced by Felicisima as insufficient to defeat Atty. Mendoza’s claim for attorney’s fees. Said judgment had attained finality and even pending appeal was already executed on motion by Atty. Mendoza.

Apart from the allegations in her affidavit-complaint, Felicisima failed to establish by clear and satisfactory proof of the deception allegedly committed by Atty. Mendoza when she agreed in writing for the latter’s contingent fees. Fraud and irregularity in the execution of their contingency fee contract cannot be deduced from the fact alone that Atty. Mendoza filed suit to enforce their contract.

  1. Atty. Navarro ‘s Gross Negligence

    With respect to Atty. Navarro, the facts on record clearly established his failure to live up to the standards of diligence and competence of the legal profession.

    In this case, Atty. Navarro agreed to represent Felicisima and her siblings in Civil Case No. T-1080 and as their counsel he filed the Answer with Counterclaim. He likewise attended the hearings of the case until the RTC rendered an adverse judgment. However, after filing the Notice of Appeal, nothing was heard of again from him. He did not file any opposition when Atty. Mendoza moved for execution pending appeal, which resulted in the sale of Felicisima’s properties at public auction and eventual eviction of Felicisima and her children from the said premises. Worse, he failed to file an appellant’s brief despite receipt of the order from the CA directing him to do so within the period specified therein, and to file a motion for reconsideration when the appeal was dismissed due to non-filing of such brief. His motion for extension of time to submit an appellant’s brief was filed 93days late and was thus denied by the CA. Barely a week after, he filed a notice of withdrawal of appearance bearing the conformity of his clients which was granted. It is evident from the foregoing that Atty. Navarro failed to inform Felicisima of the status of the case so that the latter was surprised upon being served the eviction order of the court and eventual dismissal by the CA of their appeal.

    Canon 18 of the CPR mandates that a lawyer shall serve his client with competence and diligence. Rule 18.03 further provides that a lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.

A lawyer who performs his duty with diligence and candor not only protects the interest of his client; he also serves the ends of justice, does honor to the bar and helps maintain the respect of the community to the legal profession.aw

We have held that the failure of counsel to submit the appeal brief for his client within the reglementary period constitutes inexcusable negligence39 an offense that entails disciplinary action.40The filing of a brief within the period set by law is a duty not only to the client, but also to the court.41The failure to file an appellate court brief without any justifiable reason thus deserves sanction.42

 

DISPOSITION: Dismissal of case against Attorney Mendoza

Suspension for 6 months against Attorney Navarro

PEREZ VS. CATINDIG

A.C. No. 5816, March 10, 2015

By: Karen P. Lustica

 

FACTS:

 

Atty. Tristan A. Catindig admitted to Dr. Elmar Perez that he was already wed to Lily Corazon Gomez. Atty. Catindig told Dr. Perez that he was in the process of obtaining a divorce in a foreign country to dissolve his marriage to Gomez, and that he would eventually marry her once the divorce had been decreed. Consequently, sometime in 1984, Atty. Catindig and Gomez obtained a divorce decree from the Dominican Republic.

 

On July 14, 1984, Atty. Catindig married Dr. Perez in the State of Virginia in the United States of America (USA).
Years later, Dr. Perez came to know that her marriage to Atty. Catindig is a nullity since the divorce decree that was obtained from the Dominican Republic by the latter and Gomez is not recognized by Philippine laws. Sometime in 1997, Dr. Perez reminded Atty. Catindig of his promise to legalize their union by filing a petition to nullify his marriage to Gomez.
Sometime in 2001, Dr. Perez alleged that she received an anonymous letter in the mail informing her of Atty. Catindig’s scandalous affair with Atty. Baydo, and that sometime later, she came upon a love letter  written and signed by Atty. Catindig for Atty. Baydo dated April 25, 2001. In the said letter, Atty. Catindig professed his love to Atty. Baydo, promising to marry her once his “impediment is removed.”
On October 31, 2001, Atty. Catindig abandoned Dr. Perez and their son; he moved to an upscale condominium in Salcedo Village, Makati City where Atty. Baydo was frequently seen.

allawlibrary

Atty. Catindig, in his Comment, admitted that he married Gomez on May 18, 1968. He claimed, however, that immediately after the wedding, Gomez showed signs that she was incapable of complying with her marital obligations. Eventually, their irreconcilable differences led to their de facto separation in 1984.
Atty. Catindig claimed that Dr. Perez knew of the foregoing, including the fact that the divorce decreed by the Dominican Republic court does not have any effect in the Philippines.
Atty. Catindig claimed that his relationship with Dr. Perez turned sour. Eventually, he left their home in October 2001 to prevent any acrimony from developing.anroblesvirtuallawlibrary

He denied that Atty. Baydo was the reason that he left Dr. Perez.
For her part, Atty. Baydo denied that she had an affair with Atty. Catindig.

 

IBP – recommended the disbarment of Atty. Catindig for gross immorality, violation of Rule 1.01, Canon 7 and Rule 7.03 of the Code of Professional Responsibility. Complaint against Atty. Baydo – dismissed for dearth of evidence.

 

ISSUE:
WON the respondents committed gross immorality, which would warrant their disbarment.

 

HELD:

 

YES.

 

RATIO:

 

The Code of Professional Responsibility provides:chanRoblesvirtualLawlibrary

 

Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

Canon 7 – A lawyer shall at all times uphold the integrity and dignity of the legal profession and support the activities of the Integrated Bar.

Rule 7.03 – A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.cralawred

 

In this regard, Section 27, Rule 138 of the Rules of Court provides that a lawyer may be removed or suspended from the practice of law, inter alia, for grossly immoral conduct.

 

“A lawyer may be suspended or disbarred for any misconduct showing any fault or deficiency in his moral character, honesty, probity or good demeanor.” Immoral conduct involves acts that are willful, flagrant, or shameless, and that show a moral indifference to the opinion of the upright and respectable members of the community. Immoral conduct is gross when it is so corrupt as to constitute a criminal act, or so unprincipled as to be reprehensible to a high degree, or when committed under such scandalous or revolting circumstances as to shock the community’s sense of decency. The Court makes these distinctions, as the supreme penalty of disbarment arising from conduct requires grossly immoral, not simply immoral, conduct.roblesvirtuallawlibrary

Contracting a marriage during the subsistence of a previous one amounts to a grossly immoral conduct.

The facts gathered from the evidence adduced by the parties and, ironically, from Atty. Catindig’s own admission, indeed establish a pattern of conduct that is grossly immoral; it is not only corrupt and unprincipled, but reprehensible to a high degree.

Moreover, assuming arguendo that Atty. Catindig’s claim is true, it matters not that Dr. Perez knew that their marriage is a nullity. The fact still remains that he resorted to various legal strategies in order to render a façade of validity to his otherwise invalid marriage to Dr. Perez. Such act is, at the very least, so unprincipled that it is reprehensible to the highest degree.

Further, after 17 years of cohabiting with Dr. Perez, and despite the various legal actions he resorted to in order to give their union a semblance of validity, Atty. Catindig left her and their son. It was only at that time that he finally decided to properly seek the nullity of his first marriage to Gomez. Apparently, he was then already entranced with the much younger Atty. Baydo, an associate lawyer employed by his firm.

While the fact that Atty. Catindig decided to separate from Dr. Perez to pursue Atty. Baydo, in itself, cannot be considered a grossly immoral conduct, such fact forms part of the pattern showing his propensity towards immoral conduct. Lest it be misunderstood, the Court’s finding of gross immoral conduct is hinged not on Atty. Catindig’s desertion of Dr. Perez, but on his contracting of a subsequent marriage during the subsistence of his previous marriage to Gomez.
Atty. Catindig’s subsequent marriage during the subsistence of his previous one definitely manifests a deliberate disregard of the sanctity of marriage and the marital vows protected by the Constitution and affirmed by our laws. By his own admission, Atty. Catindig made a mockery out of the institution of marriage, taking advantage of his legal skills in the process. He exhibited a deplorable lack of that degree of morality required of him as a member of the bar, which thus warrant the penalty of disbarment.

There is insufficient evidence to prove the affair between the respondents.

As it is, the evidence that was presented by Dr. Perez to prove her claim was mere allegation, an anonymous letter informing her that the respondents were indeed having an affair and the purported love letter to Atty. Baydo that was signed by Atty. Catindig.

The Court has consistently held that in suspension or disbarment proceedings against lawyers, the lawyer enjoys the presumption of innocence, and the burden of proof rests upon the complainant to prove the allegations in his complaint. The evidence required in suspension or disbarment proceedings is preponderance of evidence.

anroblesvirtuallawlibrary
DISPOSITION: Catindig – disbarred. Baydo – dismissed.

 

FABAY v. RESUENA

A.C. No. 8723 | January 26, 2016

By: Karen P. Lustica

 

FACTS:

A Complaint for Disbarment filed by Gregory Fabay (Fabay) against respondent Atty. Rex A. Resuena for Gross Misconduct due to the unauthorized notarization of documents.

Virginia Perez, Marcella Perez, Amador Perez, Gloria Perez, Gracia Perez and Valentino Perez (plaintiffs) filed a complaint for ejectment/forcible entry against Gregory Fabay with respondent Atty. Resuena as their counsel.

Atty. Resuena notarized a special power of attorney (SPA) with plaintiffs as grantors, in favor of Apolo D. Perez. However, it appeared that it was only Remedios Perez who actually signed the SPA in behalf of Amador Perez, Valentino Perez, Gloria Perez and Gracia Perez.

The ejectment case was later on decided in favor of the client of Atty. Resuena. On appeal, the RTC ordered the case to be remanded to the court a quo to try the case on the merits. The trial court noted that both Amador Perez and Valentino Perez have already died.

Complainant alleged that Atty. Resuena violated the provisions of the Notarial Law by notarizing a special power of attorney notwithstanding the fact that two of the principals therein were already dead long before the execution of the SPA.

Complainant added that Atty. Resuena likewise notarized a complaint for ejectment in 2003 where Apolo Perez was made to appear as attorney-in-fact of Amador Perez and Valentino Perez when again the latter could not have possibly authorized him as they were already dead.

Further, complainant averred that Atty. Resuena, as counsel of the plainfiffs, participated in the barangay conciliations which is prohibited under the law.

Atty. Resuena explained that although it was just Remedios Perez who signed the SPA on behalf of Amador Perez, Valentino Perez, Gloria Perez and Gracia Perez, there was no misrepresentation since Remedios Perez is the spouse of Amador Perez and she was likewise previously authorized by the other co-owners, Gloria Perez and Gracia Perez, to represent them.

Atty. Resuena denied that he participated in the barangay conciliations and presented the certificate issued by the barangay captain showing that there was no record of his attendance during the confrontations of the parties before the barangay.

IBP-CBD found Atty. Resuena to have violated the provisions of the notarial law. The IBP-CBD recommended that his notarial commission be revoked and that he be disqualified to be commissioned as notary public for one (1) year.

ISSUE:

WON Atty. Resuena was guilty of Gross Misconduct due to the unauthorized notarization of documents.

HELD:

YES.

RATIO:

Section 2 (b) of Rule IV of the 2004 Rules on Notarial Practice stresses the necessity of the affiant’s personal appearance before the notary public:

x x x x

(b) A person shall not perform a notarial act if the person involved as signatory to the instrument or document –

(1) is not in the notary’s presence personally at the time of the notarization; and

(2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules.

In the instant case, it is undisputed that Atty. Resuena violated not only the notarial law but also his oath as a lawyer when he notarized the subject SPA without all the affiant’s personal appearance.

A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein. The purpose of this requirement is to enable the notary public to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act and deed.

A graver responsibility is placed upon Atty. Resuena by reason of his solemn oath to obey the laws and to do no falsehood or consent to the doing of any. The Code of Professional Responsibility (Rule 1.01 of Canon 1) also commands lawyers not to engage in unlawful, dishonest, immoral or deceitful conduct and to uphold at all times the integrity and dignity of the legal profession.

Moreover, the Notarial Law and the 2004 Rules on Notarial Practice require a duly-commissioned notary public to make the proper entries in his Notarial Register and to refrain from committing any dereliction or act which constitutes good cause for the revocation of commission or imposition of administrative sanction. Unfortunately, Atty. Resuena failed in both respects.

DISPOSITION: Atty. Rex A. Resuena is found GUILTY of malpractice as a notary public, and of violating the lawyer’s oath as well as Rule 1.01, Canon 1 of the Code of Professional Responsibility. Accordingly, he is DISBARRED from the practice of law and likewise PERPETUALLY DISQUALIFIED from being commissioned as a notary public.

ACA v. SALVADO

A.C. No. 10952 | January 26, 2016

By: Karen P. Lustica

 

FACTS:

 

Engel Paul Aca filed an administrative complaint3 for disbarment against Atty. Salvado for violation of Canon 1, Rule 1.014 and Canon 7, Rule 7.035 of the Code of Professional Responsibility (CPR).

 

Complainant alleged, among others, that sometime in 2010, he met Atty. Salvado through Atty. Samuel Divina (Atty. Divina), his childhood friend; that Atty. Salvado introduced himself as a lawyer and a businessman engaged in several businesses including but not limited to the lending business; that on the same occasion, Atty. Salvado enticed the complainant to invest in his business with a guarantee that he would be given a high interest rate of 5% to 6% every month; and that he was assured of a profitable investment due by Atty. Salvado as the latter had various clients and investors.

 

As consideration for these investments, Atty. Salvado issued several post-dated checks in the total amount of P6,107,000.00, representing the principal amount plus interests. All checks were drawn from PSBank.

 

Upon presentment, however, complainant was shocked to learn that the aforementioned checks were dishonored as these were drawn from insufficient funds or a closed account.

 

Complainant made several verbal and written demands upon Atty. Salvado. As time went by, however, Atty. Salvado began to avoid complainant’s calls and text messages. This prompted complainant to refer the matter to his lawyer Atty. Divina, for appropriate legal action.

 

Atty. Divina personally served the Notice of Dishonor on Atty. Salvado, directing him to settle his total obligation in the amount of P747,000.00. Atty. Salvado refused to receive the said notice.

 

Complainant went to Atty. Salvado’s house to personally serve the demand letter. A certain “Mark” who opened the gate told the filing clerk that Atty. Salvado was no longer residing there and had been staying in the province already.

 

As they were about to leave, a red vehicle arrived bearing Atty. Salvado. Complainant quickly alighted from his vehicle and confronted him as he was about to enter the gate of the house. Obviously startled, Atty. Salvado told him that he had not forgotten his debt. During this conversation, Atty. Salvado assured complainant that he was working on “something” to pay his obligations. He still refused to personally receive or, at the least, read the demand letter.

 

Despite his promises, Atty. Salvado failed to settle his obligations.

 

Atty. Salvado denied that he told complainant that he had previously entered into various government contracts and that he was previously engaged in some other businesses prior to engaging in the lending and rediscounting business. Atty. Salvado asserted that he never enticed complainant to invest in his business, but it was Atty. Divina’s earnings of good interest that attracted him into making an investment.

 

The checks he issued were merely intended as security or evidence of investment.

 

Atty. Salvado also claimed that, in the past, there were instances when he would request complainant not to deposit a check knowing that it was not backed up by sufficient funds. This arrangement had worked until the dishonor of the checks, for which he readily offered his house and lot located in Marikina City as collateral.

 

Investigating Commissioner recommended that Atty. Salvado be meted a penalty of suspension from the practice of law for six (6) months.

 

IBP-BOG adopted and approved the recommendation with modification – increased the period of suspension from six (6) months to two (2) years.

 

ISSUE:

 

WON ATTY. SALVADO should be suspended for he violated CPR and the Lawyer’s Oath

 

HELD:

 

YES.

 

RATIO:

 

  1. The public is, indeed, inclined to rely on representations made by lawyers. As a man of law, a lawyer is necessarily a leader of the community, looked up to as a model citizen. A man, learned in the law like Atty. Salvado, is expected to make truthful representations when dealing with persons, clients or otherwise. For the Court, and as the IBP-BOG had observed, complainant’s being beguiled to part with his  money and believe Atty. .Salvado as a lawyer and businessman was typical human behavior worthy of belief. The Court finds it hard to believe that a person like the complainant would not find the profession of the person on whose businesses he would invest as important to consider. Simply put, Atty. Salvado’s stature as a member of the Bar had, in one way or another, influenced complainant’s decision to invest.
  2. The excuse of “gullibility and inadvertence” deserves scant consideration. Surely, Atty. Salvado is aware that promoting obedience to the Constitution and the laws of the land is the primary obligation of lawyers. When he issued the worthless checks, he discredited the legal profession and created the public impression that laws were mere tools of convenience that could be used, bended and abused to satisfy personal whims and desires. In Lao v. Medel, the Court wrote that the issuance of worthless checks constituted gross misconduct, and put the erring lawyer’s moral character in serious doubt, though it was not related to his professional duties as a member of the Bar. Covered by this dictum is Atty. Salvado’s business relationship with complainant. His issuance of the subject checks display his doubtful fitness as an officer of the court. Clearly, he violated Rule 1.01 and Rule 7.03 of the CPR.

 

  1. The Court cannot overlook Atty. Salvado’s deceiving attempts to evade payment of his obligations.

 

 

 

DISPOSITION: SUSPENDED from the practice of law for a period of two (2) years.

 

MADRIA V. RIVERA

AC No. 11256 | March 7, 2017

By: Karen P. Lustica

 

FACTS:

 

Complainant Flordeliza A. Madria consulted the respondent to inquire about the process of annulling her marriage with her husband, Juan C. Madria. After giving the details of her marriage and other facts relevant to the annulment, the respondent told her that she had a strong case, and guaranteed that he could obtain for her the decree of annulment. He told her, too, that his legal services would cost P25,000.00.

 

The complainant returned to the respondent’s office. Respondent showed her the petition for annulment, and asked her to sign it. She paid to him an initial amount of P4,000.00. He acknowledged the payment through a handwritten receipt.

 

The complainant again went to the respondent’s office to deliver another partial payment, and to follow up on the case. The respondent advised her to just wait for the resolution of her complaint, and assured her that she did not need to appear in court. He explained that all the court notices and processes would be sent to his office, and that he would regularly apprise her of the developments. She returned to his office to complete her payment, and he also issued his receipt for the payment.

 

The complainant’s daughter Vanessa thereafter made several follow- ups on behalf of her mother. The respondent informed the complainant that her petition had been granted. Thus, Vanessa went to the respondent’s office and received a copy of the trial court’s decision signed by Judge Lyliha Abella Aquino.

 

According to the complainant, the respondent advised her to allow five months to lapse after the release of the decision before she could safely claim the status of “single.” After the lapse of such time, she declared in her Voter’s Registration Record (VRR) that she was single.

 

The complainant, again through Vanessa, received from the respondent a copy of the certificate of finality dated September 26, 2003 signed by one Jacinto C. Danao.

 

Believing that the documents were authentic, the complainant used the purported decision and certificate of finality in applying for the renewal of her passport. However, she became the object of an investigation by the National Bureau of Investigation (NBI) because her former partner, Andrew Dowson Grainge, had filed a complaint charging that she had fabricated the decision for the annulment of her marriage.

 

Only then did she learn that the decision and the certificate of finality given by the respondent did not exist in the court records, as borne out by the letter signed by Atty. Aura Clarissa B. Tabag- Querubin, Clerk of Court of the RTC Branch IV, to wit – As per records of this Court, the above- entitled case was filed on April 25, 2003 but was dismissed as per Order of this Court dated April 6, 2004. The signature of the [sic] Judge Lyliha Abella Aquino as appearing in the alleged decision attached to your letter is a blatant forgery.

 

As a result, the complainant faced criminal charges for violation of the Philippine Passport Act. She claims that she had relied in good faith on the representations of the respondent; and that he had taken advantage of his position in convincing her to part with her money and to rely on the falsified court documents.

 

The respondent denies the allegations of the complainant. He averred that he had informed her that he would still be carefully reviewing the grounds to support her petition; that she had insisted that he should prepare the draft of her petition that she could show to her foreigner fiance; that she had also prevailed upon him to simulate the court decision to the effect that her marriage had been annulled, and to fabricate the certificate of finality; that she had assured him that such simulated documents would be kept strictly confidential; that he had informed her that the petition had been filed in April 2003, but she had paid no attention to such information; that she had not appeared in any of the scheduled hearings despite notice; and that he had not heard from her since then, and that she had not even returned to his office.

 

IBP concluded that the respondent had violated his Lawyer’s Oath; and recommended his suspension from the practice of law for a period of two years. The IBP Board of Governors modified it to disbarment.

 

ISSUE:

 

WON ATTY. RIVERA should be disbarred

 

HELD:

 

YES.

 

RATIO:

 

The respondent acknowledged authorship of the petition for annulment of marriage, and of the simulation of the decision and certificate of finality. His explanation of having done so only upon the complainant’s persistent prodding did not exculpate him from responsibility. For one, the explanation is unacceptable, if not altogether empty. Simulating or participating in the simulation of a court decision and a certificate of finality of the same decision is an outright criminal falsification or forgery. One need not be a lawyer to know so, but it was worse in the respondent’s case because he was a lawyer. Thus, his acts were legally intolerable. Specifically, his deliberate falsification of the court decision and the certificate of finality of the decision reflected a high degree of moral turpitude on his part, and made a mockery of the administration of justice in this country. He thereby became unworthy of continuing as a member of the Bar.

 

The respondent directly contravened the letter and spirit of Rules 1.01 and 1.02, Canon 1, and Rule 15.07, Canon 15 of the Code of Professional Responsibility, to wit:

 

CANON 1 – A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW OF AND LEGAL PROCESSES.

 

Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

 

Rule 1.02 – A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.

 

x x x x

 

CANON 15 – A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS.

 

Rule 15.07. – A lawyer shall impress upon his client compliance with the laws and the principles of fairness.

 

Surely, too, he could not have soon forgotten his express undertaking under his Lawyer’s Oath to “do no falsehood, nor consent to its commission,” Indeed; the ethics of the Legal Profession rightly enjoined every lawyer like him to act with the highest standards of truthfulness, fair play and nobility in the course of his practice of law.

 

Also, Canon 15 and Rule 18.04 of Canon 18 of the Code of Professional Responsibility required the respondent be true to the complainant as his client. By choosing to ignore his fiduciary responsibility for the sake of getting her money, he committed a further violation of his Lawyer’s Oath by which he swore not to “delay any man’s cause for money or malice,” and to “conduct [him]self as a lawyer according to the best of [his] knowledge and discretion with all good fidelity as well to the courts as to [his] clients.” He compounded this violation by taking advantage of his legal knowledge to promote his own selfish motives, thereby disregarding his responsibility under Canon 17.

 

Under Section 27,23 Rule 138 of the Rules of Court, a lawyer may be disbarred on any of the following grounds, namely: (1) deceit; (2) malpractice; (3) gross misconduct in office; (4) grossly immoral conduct; (5) conviction of a crime involving moral turpitude; (6) violation of the lawyers oath; (7) willful disobedience of any lawful order of a superior court; and (8) corruptly or willfully appearing as a lawyer for a party to a case without authority so to do.

 

Falsifying or simulating the court papers amounted to deceit, malpractice or misconduct in office, any of which was already a ground sufficient for disbarment under Section 27, Rule 38 of the Rules of Court.

 

We note that the respondent was previously sanctioned for unprofessional conduct. In Cruz- Villanueva v. Rivera he was suspended from the practice of law because he had notarized documents without a notarial commission. This circumstance shows his predisposition to beguile other persons into believing in the documents that he had falsified or simulated. It is time to put a stop to such proclivity. He should be quickly removed through disbarment.

 

It is true that the power to disbar is always exercised with great caution and only for the most imperative reasons or in cases of clear misconduct affecting the standing and moral character of the lawyer as an officer of the court and member of the bar. But we do not hesitate when the misconduct is gross, like in the respondent’s case.

 

DISPOSITION: DISBARMENT

MONARES vs. MUÑOZ

A.C. No. 5582 | January 24, 2017

By: Karen P. Lustica

 

FACTS:

Arthur O. Monares is the plaintiff in a civil case filed against Ludolfo Muñoz (Ludolfo) before the Regional Trial Court (RTC) of Legazpi City. In his complaint, Monares alleged that Atty. Levi P. Muñoz represented his brother Ludolfo in the said case during regular government hours while employed as Provincial Legal Officer of Albay City.

Under the chairmanship of Atty. Oliver 0.Olaybal, ALECO’s old board of directors (BOD) engaged Muñoz as retained counsel sometime in June 1998. Olaybal averred that Muñoz did not inform ALECO’s old BOD that he was employed as Provincial Legal Officer at such time. Olaybal raised that after its administrator, the National Electrification Administration (NEA), deactivated the old BOD on the ground of mismanagement, Muñoz served as retained counsel of the NEA-appointed team which took over the management of ALECO. Moreover, Olaybal alleged that Muñoz illegally collected payments in the form of notarial and professional fees in excess of what was agreed upon in their retainer agreement.

Constante is the Executive Assistant for Legal Affairs of Sunwest Construction and Development Corporation (Sunwest). Constante claimed that Muñoz filed ten (10) cases against Sunwest on Ludolfo’s behalf before the Office of the Ombudsman (Ombudsman) while he was serving as Provincial Legal Officer.

All three (3) complaints prayed that Muñoz be disbarred for unlawfully engaging in private practice. In addition, Olaybal sought Muñoz’s disbarment for acts of disloyalty, particularly, for violating the rule against conflict of interest.

To support their position, the complainants raised that Muñoz had been previously disciplined by the Ombudsman and was convicted by the Municipal Trial Court in Cities (MTCC) in two criminal cases for violation of Section 7(b)(2) in relation to Section 11 of Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees).

Muñoz claimed that he had requested Governor Al Francis C. Bichara for authority to continue his private practice shortly after his appointment. This request was granted. Thereafter, Muñoz submitted the same request to Rafael C. Alunan III, then Secretary of the Department of the Interior and Local Government (DILG). Acting Secretary Alexander P. Aguirre granted Muñoz’s request, under the following conditions:

  1. That no government time, personnel, funds or supplies shall be utilized in connection (sic) and that no conflict of interest with your present position as Provincial Legal Officer shall arise thereby;chanrobleslaw
  2. That the time so devoted outside of office hours, the place(s) and under what circumstances you can engage in private employment shall be fixed by the Governor of Albay to the end that it will not impair in any way your efficiency; and

Pursuant to the DILG’s authorization, Governor Bichara imposed the following conditions upon Muñoz:

  1. [Y]ou cannot handle cases against the Province of Albay;chanrobleslaw
  2. [Y]ou will be on call and you will have no fix (sic) working hours provided that the efficiency of the Provincial Legal Office shall not be prejudiced;chanrobleslaw

IBP Report and on automatic review – Commissioner Aguila recommended that Muñoz be found guilty of gross misconduct and violation of Rules 1.01, 6.02, 15.01 and 15.03 of the Code of Professional Responsibility (CPR). The penalty of suspension from the practice of law for an aggregate period of four (4) years was recommended.

In his Appeal, Muñoz, insisted that when he served as Provincial Legal Officer from June 1995 to May 2002, he engaged in private practice pursuant to the three (3) written authorities issued by Governor Bichara, and the written authority of the DILG issued during his first term, which he claims had never been revoked. Muñoz also argued that no conflict of interest existed between ALECO’s old BOD and the NEA management team, since he was engaged as retained counsel of ALECO as an institution, not its management teams.

ISSUE:

WON Atty. Levi P. Muñoz is GUILTY of gross misconduct and violation of CPR.

HELD:

YES.

RATIO:

Muñoz violated the conditions of his
DILG authorization.

Notably, Muñoz did not deny Monares’ allegation that he made at least eighty-six (86) court appearances in connection with at least thirty (30) cases from April 11, 1996 to August 1, 2001. He merely alleged that his private practice did not prejudice the functions of his office.

Court appearances are necessarily made within regular government working hours, from 8:00 in the morning to 12:00 noon, and 1:00 to 5:00 in the afternoon. Additional time is likewise required to study each case, draft pleadings and prepare for trial. The sheer volume of cases handled by Muñoz clearly indicates that government time was necessarily utilized in pursuit of his private practice, in clear violation of the DILG authorization and Rule 6.02 of the CPR.

Muñoz should have requested for
authority to engage in private practice
from the Secretary of DILG for his
second and third terms.

Section 12, Rule XVIII of the Revised Civil Service Rules which provides, in part:

No officer or employee shall engage directly in any private business, vocation, or profession or be connected with any commercial, credit, agricultural, or industrial undertaking without a written permission from the head of Department.

Memorandum 17 was issued more than nine (9) years prior to Muñoz’s appointment as Provincial Legal Officer, hence, he cannot feign ignorance thereof. As a local public official, it was incumbent upon Muñoz to secure the proper authority from the Secretary of the DILG not only for his first term, but also his second and third. His failure to do so rendered him liable for unauthorized practice of his profession and violation of Rule 1.01 of the CPR.

Muñoz represented conflicting interests.

Muñoz cannot elude Olaybal’s allegations of disloyalty. In Mabini Colleges, Inc. v. Pajarillo, the Court explained the tests to determine the existence of conflict of interest, thus:

There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties. The test is “whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim, but it is his duty to oppose it for the other client. In brief, if he argues for one client, this argument will be opposed by him when he argues for the other client.” This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used. Also, there is conflict of interest if the acceptance of the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation to use against his first client any knowledge acquired through their connection. Another test of the inconsistency of interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof.

Muñoz acted as counsel for ALECO under the management of the old BOD in the two civil cases.

Muñoz served as retained counsel of ALECO under the direction of the NEA management team. The conflict of interest between Olaybal’s board on one hand, and NEA and its management team on the other, is apparent. By representing conflicting interests without the permission of all parties involved, Muñoz violated Rules 15.01 and 15.03 of the CPR.

DISPOSITION: SUSPENDED from the practice of law for a period of three (3) years.

GARCIA vs. SESBREÑO

A.C. No. 7973 and A.C. No. 10457 | February 3, 2015

By: Karen P. Lustica

FACTS:

Garcia filed a complaint for disbarment against Sesbreño before the Office of the Bar Confidant.

Garcia alleged that in 2005 while he was in Japan, Sesbreño, representing Maria Margarita and Angie Ruth, filed an action for support against him and his sister Milagros Garcia Soliman. At the time of the filing of the case, Maria Margarita was already 39 years old while Angie Ruth was 35 years old. The case was dismissed. In 2007, Garcia returned from Japan. When Sesbreño and Garcia’s children learned about his return, Sesbreño filed a Second Amended Complaint against him.

Garcia alleged that he learned that Sesbreño was convicted by the Regional Trial Court of Cebu City, Branch 18, for Homicide in Criminal Case No. CBU-31733. Garcia alleged that Sesbreño is only on parole. Garcia alleged that homicide is a crime against moral turpitude; and thus, Sesbreño should not be allowed to continue his practice of law.

In his answer to the complaint, Sesbreño alleged that his sentence was commuted and the phrase “with the inherent accessory penalties provided by law” was deleted. Sesbreño argued that even if the accessory penalty was not deleted, the disqualification applies only during the term of the sentence. Sesbreño further alleged that homicide does not involve moral turpitude. Sesbreño claimed that Garcia’s complaint was motivated by extreme malice, bad faith, and desire to retaliate against him for representing Garcia’s daughters in court.

 

ISSUES:

  1. WON conviction for the crime of homicide involves moral turpitude.
  2. WON Sesbreño should be disbarred

HELD:

  1. YES.
  2. YES.

 

RATIO:

 1. This is not to say that all convictions of the crime of homicide do not involve moral turpitude. Homicide may or may not involve moral turpitude depending on the degree of the crime. Moral turpitude is not involved in every criminal act and is not shown by every known and intentional violation of statute, but whether any particular conviction involves moral turpitude may be a question of fact and frequently depends on all the surrounding circumstances. While x x x generally but not always, crimes mala in se involve moral turpitude, while crimes mala prohibitado not, it cannot always be ascertained whether moral turpitude does or does not exist by classifying a crime as malum in se or as malum prohibitum, since there are crimes which are mala in se and yet rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. It follows therefore, that moral turpitude is somewhat a vague and indefinite term, the meaning of which must be left to the process of judicial inclusion or exclusion as the cases are reached.

The IBP-CBD correctly stated that Amparado and Yapchangco were just at the wrong place and time. They did not do anything that justified the indiscriminate firing done by Sesbreño that eventually led to the death of Amparado.

We cannot accept Sesbreño’s argument that the executive clemency restored his full civil and political rights. Sesbreño cited In re Atty. Parcasio to bolster his argument. In that case, Atty. Parcasio was granted “an absolute and unconditional pardon” which restored his “full civil and political rights,” a circumstance not present in these cases. Here, the Order of Commutation did not state that the pardon was absolute and unconditional.

There are four acts of executive clemency that the President can extend: the President can grant reprieves, commutations, pardons, and remit fines and forfeitures, after conviction by final judgment. In this case, the executive clemency merely “commuted to an indeterminate prison term of 7 years and 6 months to 10 years imprisonment” the penalty imposed on Sesbrefio. Commutation is a mere reduction of penalty. Commutation only partially extinguished criminal liability. The penalty for Sesbrefio’ s crime was never wiped out. He served the commuted or reduced penalty, for which reason he was released from prison.

 

  1. Section 27, Rule 138 of the Rules of Court states that a member of the bar may be disbarred or suspended as attorney by this Court by reason of his conviction of a crime involving moral turpitude. This Court has ruled that disbarment is the appropriate penalty for conviction by final judgment for a crime involving moral turpitude. Moral turpitude is an act of baseness, vileness, or depravity in the private duties which a man owes to his fellow men or to society in general, contraryto justice, honesty, modesty, or good morals.

DISPOSITION: Respondent Raul H. Sesbreno is DISBARRED.

EMBIDO vs. PE

Posted: April 8, 2017 in case digests, legal ethics, PALE
Tags:

EMBIDO vs. PE
A.C. No. 6732           October 22, 2013
By: Karen P. Lustica

FACTS:
Atty. Ronel F. Sustituya received two written communications from Mr.
Ballam Delaney Hunt. The letter requested a copy of the decision dated
February 12, 1997 rendered by Judge Rafael O. Penuela in Special
Proceedings Case No. 084 entitled In the Matter of the Declaration of
Presumptive Death of Rey Laserna, whose petitioner was one Shirley
Quioyo.
Judge Penuela instructed the civil docket clerk to retrieve the
records of Special Proceedings Case No. 084 entitled In the Matter of
the Declaration of Presumptive Death of Rey Laserna. It was then
discovered that the RTC had no record of Special Proceedings No. 084
wherein Shirley Quioyo was the petitioner. Instead, the court files
revealed that Judge Penuela had decided Special Proceedings No. 084
entitled In the Matter of the Declaration of Presumptive Death of
Rolando Austria, whose petitioner was one Serena Catin Austria.
Informed that the requested decision and case records did not exist,
Mr. Hunt sent a letter attaching a machine copy of the purported
decision in Special Proceedings No. 084 entitled In the Matter of the
Declaration of Presumptive Death of Rey Laserna that had been
presented by Shirley Quioyo in court proceedings in the UK.
After comparing the two documents and ascertaining that the document
attached to the October 12, 2004 letter was a falsified court
document, Judge Penuela wrote Mr. Hunt to apprise him of the
situation.
The discovery of the falsified decision prompted the Clerk of Court to
communicate on the situation in writing to the NBI, triggering the
investigation of the falsification.
Dy Quioyo, a brother of Shirley Quioyo, executed an affidavit wherein
he stated that it was the respondent who had facilitated the issuance
of the falsified decision in Special Proceedings No. 084 entitled In
the Matter of the Declaration of Presumptive Death of Rey Laserna for
a fee of P60,000.00. The allegations against the respondent were
substantially corroborated by Mary Rose Quioyo, a sister of Shirley
Quioyo.
The NBI invited the respondent to explain his side but he invoked his
constitutional right to remain silent.

ISSUE:
WON Pe should be disbarred.

HELD:
YES.

RATIO:
In light of the established circumstances, the respondent was guilty
of grave misconduct for having authored the falsification of the
decision in a non-existent court proceeding. Canon 7 of the Code of
Professional Responsibility demands that all lawyers should uphold at
all times the dignity and integrity of the Legal Profession. Rule 7.03
of the Code of Professional Responsibility states that “a lawyer shall
not engage in conduct that adversely reflects on his fitness to
practice law, nor shall he whether in public or private life, behave
in a scandalous manner to the discredit of the legal profession.”
Lawyers are further required by Rule 1.01 of the Code of Professional
Responsibility not to engage in any unlawful, dishonest and immoral or
deceitful conduct.
Gross immorality, conviction of a crime involving moral turpitude, or
fraudulent transactions can justify a lawyer’s disbarment or
suspension from the practice of law. Specifically, the deliberate
falsification of the court decision by the respondent was an act that
reflected a high degree of moral turpitude on his part. Worse, the act
made a mockery of the administration of justice in this country, given
the purpose of the falsification, which was to mislead a foreign
tribunal on the personal status of a person. He thereby became
unworthy of continuing as a member of the Bar.
It then becomes timely to remind all members of the Philippine Bar
that they should do nothing that may in any way or degree lessen the
confidence of the public in their professional fidelity and integrity.
The Court will not hesitate to wield its heavy hand of discipline on
those among them who wittingly and willingly fail to meet the enduring
demands of their Attorney’s Oath for them to:
x x x support the Constitution and obey the laws as well as the legal
orders of the duly constituted authorities therein; xxx do no
falsehood, nor consent to the doing of any in court; x x x not
wittingly or willingly promote or sue on groundless, false or unlawful
suit, nor give aid nor consent to the same; x x x delay no man for
money or malice, and x x x conduct themselves as lawyers according to
the best of their knowledge and discretion with all good fidelity as
well to the courts as to their clients x x x.
No lawyer should ever lose sight of the verity that the practice of
the legal profession is always a privilege that the Court extends only
to the deserving, and that the Court may withdraw or deny the
privilege to him who fails to observe and respect the Lawyer’s Oath
and the canons of ethical conduct in his professional and private
capacities.

DISPOSITION:
The Court FINDS AND PRONOUNCES ASST. PROVINCIAL PROSECUTOR SALVADOR N.
PE, JR. guilty of violating Rule 1.01 of Canon 1, and Rule 7.03 of
Canon 7 of the Code of Professional Responsibility, and DISBARS him.

TABANG vs. GACOTT
A.C. No. 6490 July 9, 2013
By: Karen P. Lustica

FACTS:
Lilia Tabang intended to purchase a total of thirty (30) hectares of
agricultural land. Judge Gacott noted that under the government’s
agrarian reform program, Tabang was prohibited from acquiring vast
tracts of agricultural land as she already owned other parcels. Thus,
Judge Gacott advised her to put the titles of the parcels under the
names of fictitious persons.
Lilia Tabang was able to purchase seven parcels and obtained the
corresponding Transfer Certificates of Title (TCT) under the names of
fictitious persons.
Complainants decided to sell the seven parcels as they were in need of
funds for their medication and other expenses. Claiming that he would
help complainants by offering the parcels to prospective buyers,
respondent Glenn Gacott borrowed from Lilia Tabang the TCTs covering
the parcels.
Respondent then told the complainants that he had lost all seven titles.
Upon learning that Lilia Tabang had filed a new set of petitions,
respondent executed several documents that included revocations of
SPAs and various affidavits of recovery purportedly signed by the
parcels’ (fictitious) owners. Respondent then caused the annotation of
these documents on the TCTs of the seven parcels.
Also, respondent caused the publication of notices where he
represented himself as the owner of the parcels and announced that
these were for sale. Later, respondent succeeded in selling the seven
parcels.
Alleging that respondent committed gross misconduct, dishonesty, and
deceit, complainants filed their complaint directly with the
Integrated Bar of the Philippines.

ISSUE:
WON Gacott should be disbarred.

HELD:
YES.

RATIO:
After a careful examination of the records, the Court concurs with and
adopts the findings and recommendation of Commissioner Limpingco and
the IBP Board of Governors. It is clear that respondent committed
gross misconduct, dishonesty, and deceit in violation of Rule 1.01 of
the CPR when he executed the revocations of SPAs and affidavits of
recovery and in arrogating for himself the ownership of the seven (7)
subject parcels.
While it may be true that complainant Lilia Tabang herself engaged in
illicit activities, the complainant’s own complicity does not negate,
or even mitigate, the repugnancy of respondent’s offense. Quite the
contrary, his offense is made even graver. He is a lawyer who is held
to the highest standards of morality, honesty, integrity, and fair
dealing. Perverting what is expected of him, he deliberately and
cunningly took advantage of his knowledge and skill of the law to
prejudice and torment other individuals. Not only did he countenance
illicit action, he instigated it. Not only did he acquiesce to
injustice, he orchestrated it. Thus, We impose upon respondent the
supreme penalty of disbarment.
Under Rule 138, Section 27 of the Rules of Court (Rules), a lawyer may
be disbarred for any of the following grounds:
deceit;
malpractice;
gross misconduct in office;
grossly immoral conduct;
conviction of a crime involving moral turpitude;
violation of the lawyer’s oath;
willful disobedience of any lawful order of a superior court; and
willfully appearing as an attorney for a party without authority to do so.
It is established in Jurisprudence that disbarment is proper when
lawyers commit gross misconduct, dishonesty, and deceit in usurping
the property rights of other persons.
In this case, complainants have shown by a preponderance of evidence
that respondent committed gross misconduct, dishonesty, and deceit in
violation of Rule 1.01 of the CPR.
DISPOSITION: Respondent ATTY. GLENN C. GACOTT, having clearly violated
the Canons of Professional Responsibility through his unlawful,
dishonest, and deceitful conduct, is DISBARRED and his name ordered
STRICKEN from the Roll of Attorneys.