Sie sind auf Seite 1von 20

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION A.C. No.

6125 September 19, 2006

SIMON D. PAZ, complainant, vs. ATTY. PEPITO A. SANCHEZ, respondent. DECISION CARPIO, J.: The Case This is a disbarment complaint filed by Simon D. Paz ("complainant") against Atty. Pepito A. Sanchez ("respondent") for representing conflicting interests and violation of the lawyer's oath. The Facts In his complaint dated 23 July 2003, complainant stated that sometime in 1995, complainant and his partners, Alfredo Uyecio and Petronila Catap, engaged the services of respondent to assist them purchase, as well as document the purchase, of several parcels of land from tenant-farmers in Pampanga. Respondent was also tasked to defend complainant's claim on the properties against the claim of a certain George Lizares ("Lizares"). The complaint arose because respondent, allegedly after the termination of his services in May 2000, filed a complaint before the Department of Agrarian Reform Board ("DARAB case") in behalf of one Isidro Dizon ("Dizon") for annulment of Transfer Certificate Title No. 420127-R ("TCT No. 420127-R") in the 1 name of complainant and his partners. Complainant explained that Dizon's property, covered by Emancipation Patent No. 00708554/Transfer Certificate Title No. 25214 ("TCT No. 25214"), was among those properties purchased by complainant with respondent's assistance. Complainant alleged that respondent is guilty of representing conflicting interests when he represented Dizon in a case involving the same properties and transactions in which he previously acted as complainant's counsel. Complainant added that respondent filed the DARAB case with "malicious machination" because respondent used complainant's old address to serve the complaint and summons, enabling respondent to obtain a judgment by default in Dizon's favor. Complainant also stated that on 23 June 2003, respondent, despite knowledge of complainant's pending petition for review of judgment in the DARAB case, filed a civil case ("RTC case") against complainant 2 and Sycamore Venture Corporation ("Sycamore") before the Regional Trial Court of San Fernando, Pampanga, for annulment of Transfer Certificate of Title No. 483629-R ("TCT No. 4836293 R"). Complainant pointed out that respondent should be punished for forum shopping and preparing a false certification of non-forum shopping because respondent failed to disclose complainant's pending petition before the DARAB. Complainant also charged respondent with violation of the lawyer's oath because, "with malice and full knowledge of the real facts," respondent filed groundless and false suits against complainant, his partners and Sycamore. In his comment dated 2 October 2003, respondent stated that he has been representing the tenantfarmers, including Dizon, in their cases before the DARAB and the courts since 1978. Respondent also

represented the tenant-farmers against the claims of Lizares, who filed cases for the cancellation of their emancipation patents. Respondent confirmed that in 1995, complainant and his partners expressed interest in acquiring Dizon's property. Respondent also explained that complainant and his partners, as buyers of the tenant-farmers' properties, were impleaded as defendants in the Lizares cases. Respondent came to represent complainant and his partners because they "did not get a lawyer of their own and allowed respondent to 4 represent them too." On the DARAB case, respondent clarified that the complaint was filed on 15 May 1997 and not, as complainant claimed, after respondent's services was terminated in May 2000. Respondent declared that he was compelled to file the case because he felt responsible for the cancellation of TCT No. 25214. Respondent explained that he lent Dizon's title to complainant and his partners enabling them to transfer the title in their names. Denying that there was "malicious machination" in the filing of the DARAB case, respondent stated that the address he placed was the address of complainant in 1997. The 20 August 6 2002 DARAB decision specifically stated that a copy of the complaint, summons and notices were duly served and received by complainant and his partners. However, complainant and his partners ignored the complaint, summons and notices, which led to the issuance of a judgment in Dizon's favor. Moreover, 7 8 there was entry of judgment on 21 November 2002 and the writ of execution was issued on 10 December 2002. On the RTC case, respondent explained that he was compelled to file the case when he discovered that TCT No. 420127-R, in the name of complainant and his partners, was transferred in the name of Sycamore. Respondent pointed out that unless TCT No. 483629-R is nullified, the Register of Deeds cannot execute the DARAB decision. Respondent denied that he violated the prohibition on forum 9 shopping. Respondent also maintained that the cases he filed were "justifiable, tenable and meritorious." In a Resolution dated 12 November 2003, the Court referred the case to the Integrated Bar of the Philippines ("IBP") for investigation, report and recommendation. Commissioner Milagros V. San Juan ("Commissioner San Juan") set the case for mandatory conference on 4 March 2004. Both parties appeared and were given ten days to submit their position papers. Both parties complied. The IBP's Report and Recommendation The IBP Board of Governors issued Resolution No. XVI-2005-78 dated 12 March 2005 adopting, with 10 modification, Commissioner San Juan's Report and Recommendation finding respondent guilty of violating the prohibition against representing conflicting interests. The IBP Board of Governors recommended the imposition on respondent of a penalty of one year suspension from the practice of law with a warning that a similar offense in the future will be dealt with more severely. The IBP Board of Governors forwarded the case to the Court as provided under Section 12(b), Rule 13911 B of the Rules of Court. The Court's Ruling The Court finds insufficient evidence to hold respondent liable for forum shopping and for filing groundless suits. However, the Court finds respondent liable for violation of the prohibition on representing conflicting interests. On Respondent's Violation of the Rules on Non-Forum Shopping
5

Forum shopping takes place when a litigant files multiple suits, either simultaneously or successively, 12 involving the same parties to secure a favorable judgment. Forum shopping exists if the actions raise 13 identical causes of action, subject matter and issues. The mere filing of several cases based on the same incident does not necessarily constitute forum shopping.
14

The Court notes that the certification against forum shopping did not form part of the records of the case. However, a comparison of the two cases reveal that there was no forum shopping. Although both cases are related because Dizon's property is involved, the reliefs prayed for are different. In the DARAB case, Dizon prayed for the cancellation of TCT No. 420127-R in the name of complainant and his partners. In the RTC case, Dizon's widow prayed for the cancellation of TCT No. 483629-R in the name of Sycamore. Respondent cannot be held liable for forum shopping. On Respondent's Violation of the Lawyer's Oath Lawyers take an oath that they will not wittingly or willingly promote any groundless, false or unlawful suit, nor give aid or consent to the same. The Court notes that the cases are still pending before the DARAB and the RTC. The Court, therefore, does not have any basis for ruling if there was a violation of the oath. On Respondent's Violation of the Prohibition against Representing Conflicting Interests Rule 15.03 of the Code of Professional Responsibility provides that "a lawyer shall not represent conflicting interests except by written consent of all concerned given after full disclosure of the facts." Lawyers are deemed to represent conflicting interests when, in behalf of one client, it is their duty to 15 contend for that which duty to another client requires them to oppose. The proscription against representation of conflicting interest applies to a situation where the opposing parties are present clients 16 in the same action or in an unrelated action. By respondent's own admission, when he filed the DARAB case on Dizon's behalf against complainant, both complainant and Dizon were respondent's clients at that time. Respondent was representing complainant in the cases against Lizares where respondent was duty-bound to defend complainant's title over the properties against the claims of Lizares. While it is not clear from the records that the Lizares cases included Dizon's property, it is undisputed that respondent acted as complainant's counsel in the Lizares cases. At the same time, respondent was also representing Dizon before the 17 DARAB for cancellation of lis pendens involving Dizon's property, which cancellation was needed for complainant to purchase the Dizon property. In filing the second DARAB case on Dizon's behalf, respondent was duty-bound to assail complainant's title over Dizon's property, which complainant had purchased from Dizon. Respondent was clearly in a conflict of interest situation. The Court notes that respondent did not specifically deny that he represented conflicting interests. Respondent merely offered to justify his actuations by stating that he felt it was his "duty and responsibility" to file the case because he felt responsible for the cancellation of TCT No. 25214 and its 18 subsequent transfer in complainant's name. Respondent stated that he "will forever be bothered by his 19 conscience" if he did not file the case. However, good faith and honest intentions do not excuse the 20 violation of this prohibition. In representing both complainant and Dizon, respondent's duty of undivided fidelity and loyalty to his clients was placed under a cloud of doubt. Respondent should have inhibited himself from representing Dizon against complainant in the DARAB and RTC cases to avoid conflict of interest. In Maturan v. Gonzales, the Court said: The reason for the prohibition is found in the relation of attorney and client, which is one of trust and confidence of the highest degree. A lawyer becomes familiar with all the facts connected with

his client's case. He learns from his client the weak points of the action as well as the strong ones. Such knowledge must be considered sacred and guarded with care. No opportunity must be given him to take advantage of the client's secrets. A lawyer must have the fullest confidence 21 of his client. For if the confidence is abused, the profession will suffer by the loss thereof. On the Appropriate Penalty Against Respondent In cases involving representation of conflicting interests, the Court has imposed on the erring lawyer 22 23 24 either a reprimand, or a suspension from the practice of law from six months to two years. In this case, we deem it proper to suspend respondent from the practice of law for one year as recommended by the IBP. WHEREFORE, the Court finds respondent Atty. Pepito A. Sanchez GUILTY of violating Rule 15.03 of the Code of Professional Responsibility. The Court SUSPENDS respondent from the practice of law for ONE YEAR and WARNS respondent that the commission of a similar act in the future will merit a more severe penalty. Let copies of this decision be furnished the Office of the Bar Confidant, to be appended to respondent's personal record as attorney. Likewise, copies shall be furnished to the Integrated Bar of the Philippines and all courts in the country for their information and guidance. SO ORDERED. Quisumbing, Chairperson, Carpio-Morales, Tinga, Velasco, Jr., J.J., concur.

FIRST DIVISION

[A.C. No. 6183. March 23, 2004]

EDISON G. CHENG, complainant, vs. ATTY. ALEXANDER M. AGRAVANTE, respondent. DECISION YNARES-SANTIAGO, J.: This is an administrative case for disbarment filed with the Integrated Bar of Philippines (IBP) Commission on Bar Discipline. The following facts have been established by the evidence. Respondent Atty. Alexander M. Agravante served as counsel for The Rogemson Co., Inc. (hereinafter, Rogemson) in a case filed against it before the National Labor Relations Commissions (NLRC) Regional Arbitration Branch No. XI in Davao City by its former employee, a certain Beaver Martin B. Barril. On June 18, 1998, Labor Arbiter Newton R. Sancho rendered a decision in favor of the [1] complainant, and ordered Rogemson to pay Barril separation pay and backwages. A copy of said decision was received by respondents law office on September 8, 1998. However, respondent filed a Memorandum of Appeal with the NLRC only on September 22, 1998. Consequently, the NLRC dismissed Rogemsons appeal in a Resolution dated May 27, 1999, and made the following incisive observation: In the case at bar, respondents through counsel were duly served with a copy of the decision (Vol. 1, pp. 67-70) of Labor Arbiter Newton R. Sancho, dated 18 June 1998, declaring complainant illegally dismissed from employment and awarding him with separation pay and backwages in the total sum of P130,000.00 on September 8, 1998, Tuesday, said date being indicated in the mailed decisions registry retu rn receipt which is attached to the records (Vol. 1, p. 75). Consequently, respondents had ten (10) calendar days but not later than September 18, 1998, Friday to perfect their appeal therefrom. However, the records similarly bear that this present appeal was filed belatedly by way of mail on 22 September 1998. It is necessary to state these facts candidly given the inaccurate certification by respondents counsel that he received the decision being assailed on September 10, 1998. (Vol. 2, p. 7) The complainants terminated the services of Atty. Agravante. Through their new lawyers, complainants wrote Atty. Agravante, demanding that they be compensated for the pecuniary damages [2] they had suffered as a result of his negligence. When it appeared that Atty. Agravante had no intention of responding to their letter, Edison G. Cheng, General Manager of Rogemson, filed an affidavit-complaint with the IBP Commission on Bar [3] Discipline. The case was then assigned to Commissioner Caesar R. Dulay for investigation. Allan P. Abelgas, Rogemsons Regional Sales Manager for Cebu, testified that he only learned of the decision of the Labor Arbiter when a secretary of Atty. Agravante informed him that a bond was required in filing an appeal to the NLRC. Abelgas was then about to take an emergency leave of absence, so he [4] delegated the task of securing the bond to his sister Sheila A. Balandra, another Rogemson employee. Balandra testified that on September 18, 1998, she called up Cheng in Manila by phone, who then authorized her to procure the bond. Balandra then called the office of Atty. Agravante to ask if she can submit the bond on Monday, September 21, 1998. She was told to stay on the line while the secretary consulted with one of the other lawyers in the office. When the secretary came back, she informed

Balandra that she could submit the bond on Monday, September 21, 1998 as long as it reached the law [5] office before 5:00 p.m. On September 21, 1998, Balandra arrived at the office of Atty. Agravante with the bond at 4:00 p.m. She learned that Atty. Agravante had just returned from out of town and had just opened the [6] envelope containing the adverse decision. Not surprisingly, Agravante tells a different story. He neither admitted nor denied receiving the decision of the Labor Arbiter on September 8, 1998. Instead, he alleges that he was out of town on said date and only returned to his office on September 10, 1998. Upon arriving at the office, his secretary handed to him all the correspondence addressed to him, including the envelope containing the Labor Arbiters decision. He alleges that there were several markings on this particular envelope, one of which was the date September 10, 1998, and he allegedly assumed that this was the date of receipt by his [7] office. He then informed Abelgas of the result of the case and the period within which to file a [8] Memorandum of Appeal. The instruction for Rogemson to proceed with the appeal came a full six (6) days later. He offered the services of his law office for procuring the appeal bond, but he was informed that Rogemson would take care of it. He alleges that Rogemson furnished them with the bond only in the [9] morning of September 22, 1998, although the bond documents were notarized on September 21, 1998. On July 23, 2003, Commissioner Dulay submitted his Report recommending that respondent be suspended from the practice of law for two (2) months with an admonition that a similar offense would be [10] dealt with more severely. On August 30, 2003, the Board of Governors of the IBP passed Resolution No. XVI-2003-97, approving the Report and Recommendation of the Investigating Commissioner. The investigating commissioner found that Balandras testimony that she furnished Agravantes law office with the appeal bond on September 21, 1998 and not on September 22, 1998, was not sufficiently rebutted by Agravante, who did not even cross-examine her. More importantly, the fact that the Memorandum of Appeal was filed four (4) days beyond the reglementary period for filing the same, which [11] resulted in its dismissal by the NLRC, shows that Agravante was guilty of negligence. With regard to the date of receipt of the Labor Arbiters decision, the registry return card indicated [12] that respondent received the same on September 8, 1998. Thus, Commissioner Dulay concluded that Agravante misled the NLRC when he certified in his Memorandum of Appeal that he received the adverse [13] decision of the Labor Arbiter on September 10, 1998. Before lawyers are admitted to the bar, they must first solemnly swear to do no falsehood nor [14] consent to the doing of any in court. This oath, to which all lawyers subscribe in solemn agreement to dedicate themselves to the pursuit of justice, is not a mere ceremony or formality for practicing law to be forgotten afterwards, nor is it mere words, drift and hollow, but a sacred trust that every lawyer must [15] uphold and keep inviolable at all times. This duty is expressed in general terms in the Code of Professional Responsibility, thus: CANON 10--- A lawyer owes candor, fairness and good faith to the court. It is codified further in the following rule of the Code of Professional Responsibility: Rule 10.01 ---A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall he mislead or allow the court to be misled by any artifice. In the case at bar, Agravante lied when he said he received the Labor Arbiters decision on September 10, 1998 in order to make it appear that his Memorandum of Appeal was filed on time. It cannot be stressed enough how important it is for a lawyer as an officer of the court to observe [16] [17] honesty at all times, especially before the courts. A lawyer must be a disciple of truth, and Agravante has clearly failed to live up to this duty. Moreover, the Code of Professional Responsibility states that:

CANON 18 --- A lawyer shall serve his client with competence and diligence. xxx xxx xxx

Rule 18.03 --- A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. A lawyer owes entire devotion in protecting the interest of his client, warmth and zeal in the defense of his rights. He must use all his learning and ability to the end that nothing can be taken or withheld from his client except in accordance with the law. He must present every remedy or defense within the authority of the law in support of his clients cause, regardless of his own personal views. In the full discharge of his duties to his client, the lawyer should not be afraid of the possibility that he may [18] displease the judge or the general public. In this case, respondents filing of the Memorandum of Appeal four (4) days after the deadline proves that his efforts fell short of the diligence required of a lawyer. His failure to perfect an appeal within the prescribed period constitutes negligence and malpractice proscribed by the Code of Professional Responsibility, which provide that a lawyer shall not neglect a legal matter entrusted to him and his [19] negligence in connection therewith shall render him liable. Agravantes insistence that it was not his place to file an appeal without express instructions from his client to do so is not persuasive. He could easily withdraw the appeal if his client should later decide not [20] to pursue the same. Furthermore, the belated filing of the Memorandum of Appeal cannot in any way mitigate respondents liability; on the contrary, it shows ignorance on his part. As a lawyer, he ought to know that his Memorandum of Appeal, having been filed beyond the reglementary period, would surely be struck [21] down for late filing. In sum, respondent utterly failed to perform his duties and responsibilities faithfully and well as to [22] protect the rights and interests of his client. A word regarding the imposable penalty. In the case of Perea v. Almadro, the respondent therein was similarly punished for negligence in the discharge of his duty as well as misrepresentation committed before the court. In said case, the respondent lawyer failed to file a demurrer to the evidence after asking for leave to file the same. He compounded this transgression by spinning concocting stories about the loss of the file of his draft, which somehow led him to believe that the pleading had already been filed. Finding him guilty of serious neglect of his duties as a lawyer and of open disrespect for the court and the authority it represents, as embodied in Canon 18, Rules 18.03 and 18.04 and Canon 10, Rule 10.01 of the Code of Professional Responsibility, the Court suspended the respondent therein from the practice of law for one (1) year and imposed a fine in the amount of Ten Thousand (P10,000.00) Pesos, [24] with warning that any similar acts of dishonesty would be dealt with more severely. Evidently, this case seems to be on all fours with the case at bar, so we are thus constrained to increase the penalty recommended by the IBP. WHEREFORE, in view of the foregoing, respondent Atty. Alexander M. Agravante is SUSPENDED from the practice of law for a period of one (1) year and is FINED in the amount of Ten Thousand Pesos (P10,000.00). He is STERNLY WARNED that a repetition of the same or similar offense will be dealt with more severely. No costs. SO ORDERED.
[23]

EN BANC

[A.C. No. 2884. January 28, 1998]

IRENE RAYOS-OMBAC, complainant, vs. ATTY. ORLANDO A. RAYOS, respondent. DECISION PUNO, J.: This case stemmed from a petition for disbarment filed with this Court by Mrs. Irene Rayos-Ombac against her nephew, Atty. Orlando A. Rayos, a legal practitioner in Metro Manila, for "his failure to adhere [1] to the standards of mental and moral fitness set up for members of the bar." The records show that in January 1985, respondent induced complainant who was then 85 years old to withdraw all her bank deposits and entrust them to him for safekeeping. Respondent told her that if she withdraws all her money in the bank, they will be excluded from the estate of her deceased husband and his other heirs will be precluded from inheriting part of it. Acting on respondent's suggestion, complainant preterminated all her time deposits with the Philippine National Bank on January 18, 1985. She withdrew P588,000.00. Respondent then advised complainant to deposit the money with Union Bank where he was working. He also urged her to deposit the money in his name to prevent the other heirs of her husband from tracing the same. Complainant heeded the advice of respondent. On January 22, 1985, respondent deposited the amount of P588,000.00 with Union Bank under the name of his wife in trust for seven beneficiaries, including his son. The maturity date of the time deposit was May 22, 1985. On May 21, 1985, complainant made a demand on respondent to return the P588,000.00 plus interest. Respondent told her that he has renewed the deposit for another month and promised to return the whole amount including interest on June 25, 1985. Respondent, however, failed to return the money on June 25, 1985. On August 16, 1985, respondent informed complainant that he could only return P400,000.00 to be paid on installment. Complainant acceded to respondent's proposal as she was already old and was in dire need of money. On the same date, respondent and complainant executed a memorandum of agreement stating: "WHEREAS, on January 22, 1985, (complainant) entrusted for safekeeping to (respondent) the sum of FIVE HUNDRED EIGHTY EIGHT THOUSAND PESOS (P588,000.00) which sum of money was withdrawn by the parties from the Philippine National Bank on said date. WHEREAS, the said amount was deposited by (respondent) with the consent of (complainant) with the UNION BANK, J.P. Rizal Branch, Makati, Metro Manila. WHEREAS, upon mutual agreement of the parties, they have agreed as they hereby agree on the following terms for the purpose of disposing of the above sum, to wit: 1. Of the sum of P588,000.00 received in trust, (respondent) shall return only the sum of P400,000.00 to (complainant) in the following manner:

a) P100,000.00 upon execution of this agreement; b) P200,000.00 on or before October 19, 1985, to be covered by postdated check; c) P100,000.00 on or before November 19, 1985, to be covered by a postdated check. 2. (Respondent) hereby undertakes and guarantees that at the time the aforesaid postdated checks fall due, the same should be backed up with sufficient funds on a best efforts basis. 3. That the remaining balance of P188,000.00, (respondent) hereby acknowledges the same as his indebtedness to (complainant) to be paid by the former when able or at his option. (Complainant) however assures (respondent) that she will not institute any collection suit against (respondent) (sic), neither will she transmit the same by way of testamentary succession to her heirs, neither are (respondent's) heirs liable. 4. That the parties have executed this agreement with the view of restoring their previous cordial filial [2] relationship." In accordance with the memorandum of agreement, respondent issued to complainant the following checks: 1. UCPB Check No. 487974 dated August 19, 1985 in the amount of P100,000.00; 2. UCPB Check No. 487975 dated October 19, 1985 in the amount of P200,000; 3. UCPB Check No. 487976 dated November 19, 1985 in the amount of P100,000.00. Complainant was not able to encash UCPB Check No. 487974 as it was dishonored due to insufficient funds. Respondent, nonetheless, asserted that he was not duty-bound to fund the check because under paragraph 2 of the memorandum of agreement, he only guaranteed that the checks shall be "backed up with sufficient funds on a best efforts basis." This prompted the other relatives of respondent and complainant to intervene in the brewing dispute between the two. They begged respondent to pay his obligation to complainant. Heeding their plea, respondent replaced UCPB Check No. 487974 with two new checks, one for P64,800.00 and another for P35,200.00. Complainant was able to encash the first check but not the second because it was dishonored by the drawee bank. The remaining checks, UCPB Check No. 487975 and UCPB Check No. 487976, were likewise dishonored by the drawee bank for lack of funds. On November 15, 1985, complainant filed a complaint for estafa against respondent and a corresponding information was filed against him by the provincial fiscal. Respondent thereafter made a proposal to complainant for an amicable settlement. To pay his debt, respondent offered to complainant two second hand cars and cash amounting toP40,000.00. Complainant refused the offer because she needed cash to provide for her daily needs. The records also show that respondent filed several suits against complainant. First, in February 1985, respondent filed a criminal case for estafa against complainant. It appears that respondent has previously told the tenants of a parcel of land owned by complainant that she had promised to sell them the land and that she had authorized him to negotiate with them. He obtained from the tenants advance payment for the lots they were occupying. Respondent then prepared a special [3] power of attorney authorizing him to sell the land and asked complainant to sign it. Complainant, however, refused to sign because she did not intend to make respondent her attorney-in-fact. Hence, the

tenants sued respondent for estafa. Respondent, in turn, sued complainant for estafa for allegedly reneging on her promise to sell the land. Then, on April 5, 1986, respondent filed a pleading entitled "Motion to Review Acts of Administratrix as a Prelude for Formal Motion to (sic) her Discharge" in Special Proceedings No. 5544 for the settlement of the estate of complainant's husband, pending before the Regional Trial Court of Lingayen, [4] Pangasinan. Respondent filed the pleading although he was not a party to the case. Finally, on May 19, 1986, respondent indicted complainant for "falsification by private individuals and use of falsified documents under Article 172 of the Revised Penal Code" for allegedly making untruthful [5] statements in her petition for appointment as administratrix of the estate of her deceased husband. Thus, in June 1986, complainant filed with this Court a complaint to disbar respondent on two grounds: (1) that respondent employed clever scheme to defraud complainant, and (2) that respondent filed frivolous cases against complainant to harass her. Respondent subsequently filed a complaint for disbarment against complainant's counsel, Atty. Abelardo Viray. The complaint cited four causes of action: (1) assisting client to commit tax fraud; (2) [6] use of unorthodox collection method; (3) ignorance of the law; and (4) subornation of perjury. Both disbarment cases were consolidated and referred to the Office of the Solicitor General for investigation, report and recommendation. The cases were transferred to the Integrated Bar of the Philippines (IBP) for investigation and disposition pursuant to Section 20 Rule 139-B which took effect on June 1, 1988. After investigation, the Commission on Bar Discipline of the IBP recommended the suspension of respondent from the practice of law for two years. It also recommended the dismissal of the complaint to [7] disbar Atty. Viray for lack of merit. On January 27, 1996, the Board of Governors of the IBP passed Resolution No. XII-96-22 stating: "RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the above entitled case, hereinmade part of this Resolution/Decision as Annex "A"; and, finding the recommendation therein to be supported by the evidence on record and the applicable laws and rules, Respondent Atty. Orlando A. Rayos is hereby SUSPENDED from the practice of law for two (2) years and the complaint against Atty. [8] Abelardo V. Viray is hereby DISMISSED for lack of merit." On June 6, 1996, respondent filed a Motion for Reconsideration with regard to Administrative Case [9] No. 2884. The Board of Governors of the IBP, however, denied the motion in Resolution No. XII-96[10] 193. On September 15, 1997, respondent filed with this Court a Motion to Lift Suspension for Two Years, [11] alleging that complainant has executed an affidavit withdrawing the complaint for disbarment. We deny the motion of respondent. Rule 1.01 of the Code of Professional Responsibility states: "A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct." Rule 1.03 of the same Code, on the other hand, provides: "A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man's cause." Respondent violated the Code of Professional Responsibility, as well as his oath as an attorney when he deceived his 85-year old aunt into entrusting to him all her money, and later refused to return the

same despite demand. Respondent's wicked deed was aggravated by the series of unfounded suits he filed against complainant to compel her to withdraw the disbarment case she filed against him. Indeed, respondent's deceitful conduct makes him unworthy of membership in the legal profession. The nature of the office of a lawyer requires that he shall be of good moral character. This qualification is not only a condition precedent to admission to the legal profession, but its continued possession is essential to [12] maintain one's good standing in the profession. Considering the depravity of respondent's offense, we find the penalty recommended by the IBP to be too mild. Such offense calls for the severance of respondent's privilege to practice law not only for two years, but for life. The affidavit of withdrawal of the disbarment case allegedly executed by complainant does not, in any way, exonerate the respondent. A case of suspension or disbarment may proceed regardless of interest or lack of interest of the complainant. What matters is whether, on the basis of the facts borne [13] out by the record, the charge of deceit and grossly immoral conduct has been duly proven. This rule is premised on the nature of disciplinary proceedings. A proceeding for suspension or disbarment is not in any sense a civil action where the complainant is a plaintiff and the respondent lawyer 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 [14] the proper administration of justice. Hence, if the evidence on record warrants, the respondent may be suspended or disbarred despite the desistance of complainant or his withdrawal of the charges. In the instant case, it has been sufficiently proved that respondent has engaged in deceitful conduct, in violation of the Code of Professional Responsibility. IN VIEW WHEREOF, respondent is hereby DISBARRED. Let a copy of this decision be attached to respondent's record in the Bar Confidant's Office and furnished the IBP and all our courts. SO ORDERED. THIRD DIVISION [A.C. No. 5235. March 22, 2000] FERNANDO C. CRUZ AND AMELIA CRUZ, complainants, vs. ATTY. ERNESTO C. JACINTO, respondents. Juris RESOLUTION MELO, J.: In their sworn complaint, spouses Fernando C. Cruz and Amelia Manimbo Cruz seek the disbarment of Atty. Ernesto C. Jacinto. The Integrated Bar of the Philippines, through Commissioner Jesulito A. Manalo of the Commissioner on Bar discipline, conducted an investigation. Thereafter, he submitted his Findings and Recommendation, thusly: This is a disbarment case filed by the spouses Fernando and Amelia Cruz against Atty. Ernesto C. Jacinto. This case was filed with the Commission on Bar Discipline last 30 January 1991. The evidence of the complainants show that sometime in June 1990, Atty. Ernesto Jacinto, lawyer of the couple in an unrelated case, requested the Cruz spouses for a loan in behalf of a certain Concepcion G. Padilla, who he claimed to be an old friend as she

was allegedly in need of money. The loan requested was for PhP 285,000.00 payable after 100 days for PhP 360,000 to be secured by a real estate mortgage on a parcel of land located at Quezon City. Sc juris The spouses, believing and trusting the representations of their lawyer that Padilla was a good risk, authorized him to start preparing all the necessary documents relative to the registration of the Real Estate Mortgage to secure the payment of the loan in favor of the Cruz spouses. On 4 July 1990, the complainants agreed to the request of Atty. Jacinto and were presented by the latter with a Real Estate Mortgage Contract and a Transfer Certificate of Title No. 127275 in the name of Concepcion G. Padilla. The amount of PhP 285,000.00 was given by the spouses to the respondent in cash (PhP 270,000.00) and a PBCom check no. 713929 for PhP 15,000.00. Upon maturity of the loan on 15 October 1990, the spouses demanded payment from Concepcion G. Padilla by going to the address given by the respondent but there proved to be no person by that name living therein. When the complainants verified the genuineness of TCT No. 127275 with Register of Deeds of Quezon City, it was certified by the said office to be a fake and spurious title. Further efforts to locate the debtormortgagor likewise proved futile. Juris sc In their sworn affidavits given before the National Bureau of Investigation (NBI), the spouses claim that they relied much on the reassurances made by Atty. Jacinto as to Concepcion G. Padillas credit, considering that he was their lawyer. It was also their trus t and confidence in Atty. Jacinto that made them decide to forego meeting the debtormortgagor. The complainants evidence also included the sworn statements of Estrella Ermino Palipada, the secretary of the respondent at the Neri Law Office, and Avegail Payos, a housemaid of Atty. Jacinto. Ms. Palipada stated that: 1. she was the one who prepared the Real Estate Mortgage Contract and the Receipt of the loan upon the instruction of the respondents; 2. she was a witness to the transaction and never once saw the person of Concepcion G. Padilla, the alleged mortgagor; and that 3. she was instructed by Atty. Jacinto to notarize the said contract by signing the name of one Atty. Ricardo Neri. Avegail Payos, the housemaid of the respondent, in turn stated that she was the one who simulated the signature of one Emmanuel Gimarino, the Deputy Register of Deeds of Quezon City upon the instruction of Atty. Jacinto. This was done to make it appear that the real estate mortgage was registered and the annotation to appear at the back of the TCT as an encumbrance. On 14 November 1997, a case for Estafa thru Falsification of Public documents under Art. 315 was filed against Atty. Jacinto. He was arrested and detained by the NBI. The defense of the respondent, on the other hand, was embodied in his Answer with Motion to Dismiss filed with the Commission on Bar Discipline. Therein, he alleged that

the criminal information for estafa thru falsification filed against him had already been dismissed because of the voluntary desistance of the complainants. Misj uris In his version of the facts, Atty. Jacinto averred that while he indeed facilitated the loan agreement between the Cruz spouses and Concepcion G. Padilla, he had no idea that the latter would give a falsified Certificate of Title and use it to obtain a loan. He claimed that he himself was a victim under the circumstances. Respondent further alleged that he had not been remiss nor negligent in collecting the proceeds of the loan; that in fact, he had even advanced the full payment of the loan due to the complainants from his own savings, even if Concepcion G. Padilla had not yet paid, much less found. RECOMMENDATIONS It is every lawyers sworn duty to obey the laws of the land to promote respect for law and legal processes. The Code of Professional Responsibility command that he shall not engage in unlawful, dishonest, immoral or deceitful conduct. (Rule 1.01, Code of Professional Responsibility) Jj lex In the instant case, there was a clear yet unrebutted allegation in the complaint that the Respondent had ordered his secretary and housemaid to falsify the signatures of the notary public and the Deputy Register of Deeds respectively to make it appear that the real estate mortgage contract was duly registered and thus binding. While it may be true that the complaint for Estafa thru Falsification filed against the Respondent had been dismissed, the dismissal was because of the complainants voluntary desistance and not a finding of innocence. It neither confirms nor denies Respondents non-culpability. Furthermore, it is well-settled that disciplinary proceedings are "sui generis", the primary object of which is not so much to punish the individual attorney himself, as to safeguard the administration of justice by protecting the court and the public from the misconduct of lawyers, and to remove from the professions persons whose disregard of their oath have proven them unfit to continue discharging the trust reposed in them as members of the bar. Thus, disciplinary cases may still proceed despite the dismissal of civil and/or criminal cases against a lawyer. A lawyer who does any unlawful fraudulent or dishonest act may and should be held administratively liable therefor. In the case at bar, the Respondent should not be made an exception. While it may be shown that he indeed advanced the payment due to his erstwhile clients, such will not exempt him from administrative liability. At best it can only mitigate. Respondent is recommended to be suspended for six (6) months from the practice of law. (Findings and Recommendation, pp. 1-4) New miso On February 28, 1998, the Board of Governors of the IBP passed Resolution XIII-97-199 adopting and approving the Findings and Recommendation of the Investigating Commissioner, which reads: RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this Resolution/Decision as Annex "A" and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, respondent Atty. Ernesto C. Jacinto is SUSPENDED from the practice of law for six (6) months for his unlawful, fraudulent or dishonest act.

(Notice of resolution [dated Feb. 28, 1998]). In his Comment and Answer with Motion to Dismiss, respondent averred that complainants have no cause of action against him as the same has been waived, settled, and extinguished on account of the affidavits of voluntary desistance and quitclaim executed by them in the criminal case filed against him. Ncmmis The assertion must necessarily fail. The practice of law is so intimately affected with public interest that it is both a right and a duty of the State to control and regulate it in order to promote the public welfare. The Constitution vests this power of control and regulation in this Court. Since the practice of law is inseparably connected with the exercise of its judicial power in administration of justice, the Court cannot be divested of its constitutionally ordained prerogative which includes the authority to discipline, suspend or disbar any unfit and unworthy member of the Bar by a mere execution of affidavits of voluntary desistance and quitclaim (par. [5], Sec. 5, 1987 Constitution). A lawyer may be disciplined or suspended for any misconduct, whether in his professional or private capacity, which shows him to be wanting in moral character, in honesty, in probity and good demeanor, thus rendering unworthy to continue as an officer of the court (Maligsa vs. Cabanting, 272 SCRA 408 [1997]), and the complainants who called the attention of the Court to the attorneys alleged misconduct are in no sense a party, and have generally no interest in the outcome except as all good citizens may have in the proper administration of justice (Rayos-Ombac vs. Rayos, 285 SCRA 93 [1998]). Undeniably, respondent represented complainants in the loan transaction. By his own admission, he was the one who negotiated with the borrower, his long-time friend and a former client. He acted not merely as an agent but as a lawyer of complaints, thus, the execution of the real estate mortgage contract, as well as its registration and annotation on the title were entrusted to him. In fact, respondent even received his share in the interest earnings which complainants realized from the transaction. His refusal to recognize any wrongdoing or carelessness by claiming that he is likewise a victim when it was shown that the title to the property, the registration of the real estate mortgage contract, and the annotation thereon were all feigned, will not at all exonerate him. Scncm As a rule, a lawyer is not barred from dealing with his client but the business transaction must be characterized with utmost honesty and good faith. However, the measure of good faith which an attorney is required to exercise in his dealings with this client is a much higher standard than is required in business dealings where the parties trade at arms length. Business transactions between an attorney and his client are disfavored and discouraged by the policy of the law. Hence, courts carefully watch these transactions to be sure that no advantage is taken by a lawyer over his client. This rule is founded on public policy for, by virtue of his office, an attorney is in an easy position to take advantage of the credulity and ignorance of his client. Thus, no presumption of innocence or improbability of wrongdoing is considered in an attorneys favor (Nakpit vs. Valdes, 286 SCRA 758 [1998]). Further, his fidelity to the cause of his client requires him to be evermindful of the responsibilities that should be expected of him. Verily, a lawyer may not, without being guilty of professional misconduct, act as counsel for a person whose interest conflicts with that of his former client. The reason for the prohibition is found in the relation of attorney and client, which is one of trust and confidence at the highest degree (Maturan vs. Gonzales, 287 SCRA 943 [1998]). Sdaamiso Respondent utterly failed to perform his duties and responsibilities faithfully and well as to protect the rights and interests of his clients and by his deceitful actuations constituting violations of the Code of Professional Responsibilities must be subjected to disciplinary measures for his own good, as well as for the good of the entire membership of the Bar as a whole. WHEREFORE, the Court hereby adopts the resolution of the Board of Governors of the Integrated Bar of the Philippines and orders respondent Atty. Ernesto C. Jacinto suspended from the practice of law for six

(6) months with the warning that a repetition of the same or similar offense will be dealt with more severely. Sdaad SO ORDERED. CRUZ vs. JACINTO A.C. No. 5235, March 22, 2000

Facts: Respondent Atty. Jacinto, being the lawyer of the complainants, requested the Cruz spouses to grant a loan in behalf of Padilla, who he claimed to be his old friend. The spouses, believing and trusting the representations of their lawyer that Padilla was a good risk, authorized him to start preparing all the necessary documents relative to the registration of the Real Estate Mortgage to secure the payment of the loan in favor of the Cruz spouses. Upon maturity of the loan, the spouses demanded payment from Padilla by going to the address given by respondent but there proved to be no person by that name living therein. They also discovered that the certificate of title given to them by virtue of the mortgage was fake. In their sworn affidavits, the spouses claim that they relied much on reassurances made by Atty. Jacinto as to Padillas credit, considering that he was their

lawyer. There was also an unrebutted evidence that respondent had ordered his secretary and housemaid to falsify the signatures of the notary public and the Deputy Register of Deeds respectively to make it appear that the real estate mortgage contract was duly registered and thus binding.

Issue:

Is the respondent lawyer guilty of professional misconduct?

Held: YES. Respondent represented complainants in the loan transaction. By his own admission, he was the one who negotiated with the borrower, his long-time friend and a former client. He acted not merely as an agent but as a lawyer of complainants, thus, the execution of the real estate mortgage contract, as well as its registration and annotation on the title were entrusted to him. In fact, respondent even received his share in the interest earnings which complainants realized from the transaction. His refusal to recognize any wrongdoing or carelessness by claiming that he is likewise a victim when it was shown that the title to the property, the registration of the real estate mortgage contract, and the annotation thereon were all feigned, will not at all exonerate him. As a rule, a lawyer is not barred from dealing with his client but the business transaction must be characterized with utmost honesty and good faith. However, the measure of good faith which an attorney is required to exercise in his dealings with his client is a much higher standard than is required in business dealings where the parties trade at arms length. Business transactions between an attorney and his client are disfavored and discouraged by the policy of the law. Hence, courts carefully watch these transactions to be sure that no advantage is taken by a lawyer over his client. This rule is founded on public policy for, by virtue of his office, an attorney is in an easy position to take advantage of the credulity and ignorance of his client. Thus, no presumption of innocence or

improbability of wrongdoing is considered in an attorney's favor. Further, his fidelity to the cause of his client requires him to be ever mindful of the responsibilities that should be expected of him. Respondent utterly failed to perform his duties and responsibilities faithfully as well as to protect the rights and interests of his clients and by his deceitful actuations constituting violations of the Code of Professional Responsibilities must be subjected to disciplinary measures for his own good, as well as for the good o the entire membership of the Bar as a whole.

EN BANC

[CBD A.C. No. 313. January 30, 1998]

ATTY. AUGUSTO G. NAVARRO, for and in behalf of PAN-ASIA INTERNATIONAL COMMODITIES, INC., complainant, vs. ATTY. ROSENDO MENESES III, respondent. DECISION PER CURIAM: This administrative case against respondent Atty. Rosendo Meneses III was initiated by a complaint[1] affidavit filed by Atty. Augusto G. Navarro on June 7, 1994 before the Commission on Bar Discipline of the Integrated Bar of the Philippines (hereinafter, the Commission), for and in behalf of Pan-Asia International Commodities, Inc. Herein complainant charges respondent Meneses with the following offenses, viz.: (1) malpractice and gross misconduct unbecoming a public defender; (2) dereliction of duty, by violating his oath to do everything within his power to protect his clients interest; (3) willful abandonment; and (4) loss of trust and confidence, due to his continued failure to account for the amount of P50,000.00 entrusted to him to be paid to a certain complainant for the amicable settlement of a [2] pending case. The complaint-affidavit alleged that Frankwell Management and Consultant, Inc., a group of companies which includes Pan Asia International Commodities, Inc., through its Administrative Manager Estrellita Valdez, engaged the legal services of respondent Atty. Meneses. While serving as such counsel, Atty. Meneses handled various cases and was properly compensated by his client in accordance [3] with their retainer agreement. One of the litigations handled by him was the case of People vs. Lai Chan Kow, a.k.a. Wilson Lai, and Arthur Bretaa, pending before Branch 134, Regional Trial Court of Makati. On December 24. 1993, respondent received the sum of P50,000.00 from Arthur Bretaa, the accused in said case, to be given to therein offended party, a certain Gleason, as consideration for an out-of-court settlement and with the understanding that a motion to dismiss the case would be filed by respondent Meneses. Despite subsequent repeated requests, respondent failed to present to his client the receipt acknowledging that Gleason received said amount. A verification made with the Regional Trial Court of Makati revealed that no motion to dismiss or any pleading in connection therewith had been filed, and the supposed amicable settlement was not finalized and concluded. Despite repeated demands in writing or by telephone for an explanation, as well as the turnover of all documents pertaining to the aforementioned case, respondent Meneses deliberately ignored the pleas of herein complainant. The case was assigned by the Commission to Commissioner Victor C. Fernandez for investigation. Respondent was thereafter ordered to submit his answer to the complaint pursuant to [4] Section 5, rule 139-B of the Rules of Court. Two successive ex parte motions for extension of time to file [5] an answer were filed by respondent and granted by the Commission. On November 14, 1994, [6] respondent filed a motion to dismiss, instead of an answer. In said motion, respondent argued that Atty. Navarro had no legal personality to sue him for and in behalf of Pan-Asia International Commodities, Inc. because his legal services were retained by Frankwell Management and Consultant, Inc.; that Navarro had not represented Pan-Asia International Commodities, Inc. in any case nor had been authorized by its board of directors to file this disbarment case against respondent; that the retainer agreement between him and Frankwell Management and Consultant, Inc. had been terminated as of December 31, 1993 according to the verbal advice of its Administrative Officer Estrellita Valdez; that the case of Arthur Bretaa was not part of their retainer agreement, and Bretaa was not an employee of Frankwell Management and Consultant, Inc. which

retained him as its legal counsel; and that the settlement of said case cannot be concluded because the same was archived and accused Bretaa is presently out of the country. Herein complainant, in his opposition to the motion to dismiss, stresses that respondent Meneses is resorting to technicalities to evade the issue of his failure to account for the amount of P50,000.00 entrusted to him; that the respondents arguments in his motion to dismiss were all designed to mislead the Commission; and that he was fully aware of the interrelationship of the two corporations and always coordinated his legal work with Estrellita Valdez. On November 28, 1994, Investigating Commissioner Victor C. Fernandez resolved to deny said [8] motion to dismiss for lack of merit and directed respondent to file his answer. On January 2, 1995, respondent filed a manifestation that he was adopting the allegations in his motion to dismiss his [9] answer. When the case was set for hearing on February 9, 1995, respondent failed to attend despite due notice. He thereafter moved to postpone and reset the hearing of the case several times allegedly due to problems with his health. On the scheduled hearing on June 15, 1995, respondent again failed to attend. The commissioner accordingly received an ex parte the testimony of complainants sole witness, Estrellita Valdez, and other [10] documentary evidence. Thereafter, complainant rested its case. Respondent filed a so-called Urgent Ex-parte Motion for Reconsideration with Motion to Recall Complainants Witness for Cross [11] [12] Examination which was granted by the Commission. Estrellita Valdez was directed by the Commission to appear on the scheduled hearing for cross-examination. Several postponement and resetting of hearings were later requested and granted by the Commission. When the case was set for hearing for the last time on May 31, 1996, respondent failed to attend despite due notice and repeated warnings. Consequently, the Commission considered him to have waived his right to present evidence in his defense and declared the case submitted for [13] resolution. On February 4, 1997, the Commission on Bar Discipline, through its Investigating Commissioner [14] Victor C. Fernandez, submitted its Report and Recommendation to the Board of Governors of the Integrated Bar of the Philippines. The Commission ruled that the refusal and/or failure of respondent to account for the sum of P50,000.00 he received from complainant for the settlement of the aforestated case of Lai Chan Kow and Arthur Bretaa proves beyond any shadow of a doubt that he misappropriated the same, hence he deserved to be penalized. The Commission recommended that respondent Meneses he suspended from the practice of the legal profession for a period of three (3) years and directed to return the P50,000.00 he received from the petitioner within fifteen (15) days from notice of the resolution. It further provided that failure on his part to [15] comply with such requirement would result in his disbarment. The Board of Governors adopted and approved the report and recommendation of the Investigating Commissioner in its Resolution No. XII-97[16] 133, dated July 26, 1997. On August 15, 1997, the Court received the Notice of Resolution, the Report and Recommendation of the Investigating Commissioner, and the records of this case through the Office of the Bar Confidant for [17] final action pursuant to Section 12 (b) of Rule 139-B. It appears therefrom that respondent was duly furnished a copy of said resolution, with the investigating commissioners report and recommendation annexed thereto. The Court agrees with the findings and conclusion of the Integrated Bar of the Philippines that respondent Meneses misappropriated the money entrusted to him and which he has failed and/or refused to account for to his client despite repeated demands therefor. Such conduct on the part of respondent indicating his unfitness for the confidence and trust reposed on him, or showing such lack of personal honesty or of good moral character as to render him unworthy of public confidence, constitutes a ground [18] for disciplinary action extending to disbarment. Respondent Meneses misconduct constitute a gross violation of his oath as a lawyer which, inter alia, imposes upon every lawyer the duty to delay no man for money or malice. He blatantly disregarded Rule 16.01 of Canon 16 of the Code of Professional Responsibility which provides that a lawyer shall
[7]

account for all money or property collected or received for or from his client. Respondent was merely holding in trust the money he received from his client to used as consideration for amicable settlement of a case he was handling. Since the amicable settlement did no materialize, he was necessarily under obligation to immediate return the money, as there is no showing that he has a lien over it. As a lawyer, he should be scrupulously careful in handling money entrusted to him in his professional capacity, [19] because a high degree of fidelity and good faith on his part is exacted. The argument of respondent that complainant has no legal personality to sue him is unavailing. Section 1 Rule 139-B of the Rules of Court provides that proceedings for the disbarment, suspension, or discipline of attorneys may be taken by the Supreme Court motu propio or by the Integrated Bar of the Philippines upon the verified complainant of any person. The right to institute a disbarment proceeding is not confined to clients nor is it necessary that the person complaining suffered injury from the alleged wrongdoing. Disbarment proceedings are matters of public interest and the only basis for judgment is the proof or failure of proof of the charge. The evidence submitted by complainant before the Commission on Bar Discipline sufficed to sustain its resolution and recommended sanctions. It is settled that a lawyer is not obliged to act as counsel for every person who may wish to become [20] his client. He has the right to decline employment subject however, to the provision of Canon 14 of the [21] Code of Professional Responsibility. Once he agrees to take up the cause of a client, he owes fidelity [22] to such cause and must always be mindful of the trust and confidence reposed to him. Respondent Meneses, as counsel, had the obligation to inform his client of the status of the case and to respond within a reasonable time to his clients request for information. Respondents failure to communicate with his client by deliberately disregarding its request for an audience or conference is an unjustifiable denial of its right to be fully informed of the developments in and the status of its case. On January 7, 1998, the Bar Confidant submitted to the Court a copy of the letter of Atty. Augusto G. Navarro, dated December 18, 1997, to the effect that although a copy of the aforestated Resolution No. XII-97-133 was personally delivered to respondents address and received by his wife on October 9, 1997, he had failed to restitute the amount of P50,000.00 to complainant within the 15-day period provided therein. Neither has he filed with this Court any pleading or written indication of his having returned said amount to complainant. In line with the resolution in this case, his disbarment is consequently warranted and exigent. A note and advice on the penalty imposed in the resolution is in order. The dispositive portion thereof provides that: x x x Respondent Atty. Rosendo Meneses is hereby SUSPENDED from the practice of law for three (3) years and is hereby directed to return the Fifty Thousand Pesos he received from the petitioner within fifteen (15) days from receipt of this resolution. Failure on his part to comply will [23] result (i)n his DISBARMENT. In other words, it effectively purports to impose either a 3-year suspension or disbarment, depending on whether or not respondent duly returns the amount to complainant. Viewed from another angle, it directs that he shall only be suspended, subject to the condition that he should make restitution as prescribed therein. Dispositions of this nature should be avoided. In the imposition of penalties in criminal cases, it has long been the rule that the penalty imposed in a judgment cannot be in the alternative, even if the law [24] [25] provides for alternative penalties, not can such penalty be subject to a condition. There is no reason why such legal principles in penal law should not apply in administrative disciplinary actions which, as in this case, also involve punitive sanctions. Besides, if the purpose was to extenuate the liability of respondent, the only possible and equivalent rule is in malversation cases holding that the restitution of the peculated funds would be analogous to [26] voluntary surrender if it was immediately and voluntarily made before the case was instituted. The evidently is not the situation here. Also the implementation of the penalty provided in the resolution will involve a cumbersome process since, in order to arrive at the final action to be taken by this Court, it will have to wait for a verified report on whether or not respondent complied with the condition subsequent.

WHEREFORE, Atty. Rosendo Meneses III is hereby DISBARRED. Let a copy of this decision be attached to respondents personal records in this Court and furnished the Integrated Bar of the Philippines, together with all courts in the county. SO ORDERED.

Das könnte Ihnen auch gefallen