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Montecillo vs Del Mar60 SCRA 234 – Legal Ethics – Lawyer’s Duty to the Courts – Contemptuous Language
Jorge Montecillo was accused by Francisco Gica of slander. Atty. Quirico del Mar represented Montecillo and he
successfully defended Monteceillo in the lower
court. Del Mar was even able to win their counterclaim thus the lower court ordered Gica to pay Montecillo the adjudged moral damages.
Gica appealed the award of damages to the Court of Appeals where the latter court reversed the same. Atty. Del Mar then filed a motion for reconsideration where he made a veiled threat against the Court of Appeals judges intimating that he thinks the CA justices “knowingly rendered an unjust decision” and “judgment has been rendered through negligence” and that the CA allowed itself to be deceived. The CA denied the MFR and it admonished Atty. Del Mar from using such tone with the court. Del Mar then filed a second MFR where he again made threats. The CA then ordered del Mar to show cause as to why he should not be punished for contempt.
Thereafter, del Mar sent the three CA justices a copy of a letter which he sent to the President of the Philippines asking the said justices to consider the CA judgment. But the CA did not reverse its judgment. Del Mar then filed a civil case against the three justices of the CA before a Cebu lower court but the civil case was eventually dismissed by reason of a compromise agreementwhere del Mar agreed to pay damages to the justices. Eventually, the CA suspended Atty. Del Mar from practice.
The issue reached the Supreme Court. Del Mar asked the SC to reverse his suspension as well as the CA decision as to the Montecillo case. The SC denied both and this earned the ire of del Mar as he demanded from the Clerk of the Supreme Court as to who were the judges who voted against him. The Supreme Court then directed del Mar to submit an explanation as to why he should not be disciplined. Del Mar in his explanation instead tried to justify his actions even stating that had he not been “convinced that human efforts in [pursuing the case] will be fruitless” he would have continued with the civil case against the CA justices. In his explanation, del Mar also intimated that even the Supreme Court is part among “the corrupt, the grafters and those allegedly committing injustice”.
Del Mar even filed a civil case against some Supreme Court justices but the judge who handled the case dismissed the same.
ISSUE: Whether or not Atty. Del Mar should be suspended. HELD: Yes. Atty. Del Mar, by his contemptuous acts is in
violation of his duties to the courts. As an officer of the court, it is his sworn and moral duty to help build and not
destroy unnecessarily the high esteem and regard towards the court so essential to the proper administration of justice.
It is manifest that del Mar has scant respect for the two highest Courts of the land when on the flimsy ground of alleged error in deciding a case, he proceeded to challenge the integrity of both Courts by claiming that they knowingly rendered unjust judgment. In short, his allegation is that they acted with intent and malice, if not with gross ignorance of the law, in disposing of the case of his client.
Del Mar was then suspended indefinitely.
Rochelle P. Lacsina 3-B Clarita J. Samala vs. Atty. Luciano D. Valencia
A.C. No. 5439; January 22, 2007 Austria-Martinez, J. Facts: Clarita J. Samala (complainant) filed a complaint against Atty. Luciano D. Valencia (respondent) for Disbarment on the following grounds:
(a) serving on two separate occasions as counsel for contending parties;
(b) knowingly misleading the court by submitting false documentary evidence;
(c) initiating numerous cases in exchange for non-payment of rental fees; and
(d) having a reputation of being immoral by siring illegitimate children.
After respondent filed his Comment, the Court referred the case to the IBP for investigation, report, and
recommendation.
After a series of hearings, the parties filed their respective memoranda and the case was deemed submitted for resolution.
The Commissioner found respondent guilty of violating Canons 15 and 21 of the Code of Professional Responsibility and recommended the penalty of suspension for six months. The IBP Board of Governors adopted and approved the report and recommendation of Commissioner Reyes but increased the penalty of suspension from six months to one year.
Issue: Whether or not the respondent violated Canons 15
and 21 of the Code of Professional Responsibility.
Held: This Court adopts the report of the IBP Board of
Governors except as to the issue on immorality and as to the recommended penalty.
(a) On serving as counsel for contending parties.
Respondent, while being the counsel for defendant Valdez, also acted as counsel for the tenants Lagmay, Valencia, Bustamante and Bayuga by filing an Explanation and Compliance before the RTC. The Presiding Judge warned respondent to refrain from repeating the act of being counsel of record of both parties in Civil Case No. 95-105-MK.
Rule 15.03, Canon 15 of the Code of Professional Responsibility provides that a lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts. A lawyer may not, without being guilty of professional misconduct, act as counsel for a person whose interest conflicts with that of his present or former client. He may not also undertake to discharge conflicting duties any more than he may represent antagonistic interests. This stern rule is founded on the principles of public policy and good taste. It springs from the relation of attorney and client which is one of trust and confidence. Lawyers are expected not only to keep inviolate the client's confidence, but also to avoid the appearance of treachery and double-dealing for only then can litigants be encouraged to entrust their secrets to their lawyers, which is of paramount importance in the administration of justice. One of the tests of inconsistency of interests is whether the acceptance of a new relation would prevent the full discharge of the lawyer's duty of undivided fidelity and loyalty to the client or invite suspicion of unfaithfulness or double-dealing in the performance of that duty.
(b) On knowingly misleading the court by submitting false documentary evidence.
Complainant alleges that in Civil Case No. 00-7137 filed before MTC, Branch 75 for ejectment, respondent submitted TCT No. 273020 as evidence of Valdez's ownership despite the fact that a new TCT No. 275500 was already issued in the name of Alba on February 2, 1995.
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During the hearing before Commissioner Raval, respondent avers that when the Answer was filed in the said case, that was the time that he came to know that the title was already in the name of Alba; so that when the court dismissed the complaint, he did not do anything anymore.
Respondent further avers that Valdez did not tell him the truth and things were revealed to him only when the case for rescission was filed in 2002. Respondent failed to comply with Canon 10 of the Code of Professional Responsibility which provides that 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.
It matters not that the trial court was not misled by respondent's submission of TCT No. 273020 in the name of Valdez, as shown by its decision dated January 8, 2002 dismissing the complaint for ejectment. What is decisive in this case is respondent's intent in trying to mislead the court by presenting TCT No. 273020 despite the fact that said title was already cancelled and a new one, TCT No. 275500, was already issued in the name of Alba.
(c) On initiating numerous cases in exchange for nonpayment of rental fees.
Complainant alleged that respondent filed the following cases:
(i) Civil Case No. 2000-657-MK at the RTC, Branch 272; (ii) Civil Case No. 00-7137 at the MTC, Branch 75; and (iii) I.S. Nos. 00-4439 and 01-036162 both entitled "Valencia v. Samala" for estafa and grave coercion, respectively, before the Marikina City Prosecutor. Complainant claims that the two criminal cases were filed in retaliation for the cases she filed against Lagmay docketed as I.S. No. 00-4306 for estafa and I.S. No. 00-4318 against Alvin Valencia (son of
respondent) for trespass to dwelling. As culled from the records, Valdez entered into a retainer agreement with respondent. As payment for his services, he was allowed to occupy the property for free and utilize the same as his office pursuant to their retainer agreement.
The Court finds the charge to be without sufficient basis. The act of respondent of filing the aforecited cases to protect the interest of his client, on one hand, and his own interest, on the other, cannot be made the basis of an administrative charge unless it can be clearly shown that the same was being done to abuse judicial processes to commit injustice. The filing of an administrative case against respondent for protecting the interest of his client and his own right would be putting a burden on a practicing lawyer who is obligated to defend and prosecute the right of his client.
(d) On having a reputation for being immoral by siring illegitimate children.
The Court finds respondent liable for being immoral by siring illegitimate children. During the hearing, respondent admitted that he sired three children by Teresita Lagmay who are all over 20 years of age, while his first wife was still alive. He also admitted that he has eight children by his first wife, the youngest of whom is over 20 years of age, and after his wife died in 1997, he married Lagmay in 1998.
Respondent further admitted that Lagmay was staying in one of the apartments being claimed by complainant. However, he does not consider his affair with Lagmay as a relationship and does not consider the latter as his second family. He reasoned that he was not staying with Lagmay because he has two houses, one in Muntinlupa and another in Marikina.
Under Canon 1, Rule 1.01 of the Code of Professional Responsibility, a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
It may be difficult to specify the degree of moral delinquency that may qualify an act as immoral, yet, for purposes of disciplining a lawyer, immoral conduct has been defined as that "conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of respectable members of the community.
ACCORDINGLY, the Court finds respondent Atty. Luciano D. Valencia GUILTY of misconduct and violation of Canons 21, 10 and 1 of the Code of Professional Responsibility. He is SUSPENDED from the practice of law for three (3) years, effective immediately upon receipt of herein Resolution.
Lee vs Tambago, 544 SCRA 393, February 12, 2008 Facts: Complainant, Manuel L. Lee, charged respondent,
Atty. Regino B. Tambago, with violation of Notarial Law and the Ethics of the legal profession for notarizing a will that is alleged to be spurious in nature in containing forged signatures of his father, the decedent, Vicente Lee Sr. and two other witnesses, which were also questioned for the unnotated Residence Certificates that are known to be a copy of their respective voter's affidavit. In addition to such, the contested will was executed and acknowledged before respondent on June 30, 1965 but bears a Residence
Certificate by the Testator dated January 5, 1962, which was never submitted for filing to the Archives Division of the Records Management and Archives Office of the National Commission for Culture and Arts (NCAA). Respondent, on the other hand, claimed that all allegations are falsely given because he allegedly exercised his duties as Notary Public with due care and with due regards to the provision of existing law and had complied with elementary formalities in the performance of his duties and that the complaint was filed simply to harass him based on the result of a criminal case against him in the Ombudsman that did not prosper. However, he did not deny the contention of non-filing a copy to the Archives Division of NCAA. In resolution, the court referred the case to the IBP and the decision of which was affirmed with modification against the respondent and in favor of the complainant.
Issue: Did Atty. Regino B. Tambago committed a violation in
Notarial Law and the Ethics of Legal Profession for notarizing a spurious last will and testament?
Held: Yes. As per Supreme Court, Atty. Regino B. Tambago is
guilty of professional misconduct as he violated the Lawyer's Oath, Rule 138 of the Rules of Court, Canon 1 and Rule 1.01nof the Code of Professional Responsibility, Article 806 of the Civil Code and provision of the Notarial Law. Thus, Atty. Tambago is suspended from the practice of law for one year and his Notarial commission revoked. In addition, because he has not lived up to the trustworthiness expected of him as a notary public and as an officer of the court, he is perpetually disqualified from reappointments as a Notary Public.
In re: Gutierrez
Legal Ethics – 5 SCRA 661 – Conditional Pardon will not bar disbarment
Attorney Gutierrez was convicted for the murder of one Filemon Samaco in 1956. He was sentenced to the penalty of reclusionperpetua. In 1958, after serving a portion of the penalty, he was granted a conditional pardon by the President. He was released on the condition that he shall not commit any crime. Subsequently, the widow of Samaco filed a disbarment case against Gutierrez by reason of the latter’s conviction of a crime involving moral turpitude. Murder, is without a doubt, such a crime.
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ISSUE: Whether or not Gutierrez may be disbarredconsidering the fact that he was granted pardon.
HELD: Yes. The pardon granted to Gutierrez is not absolute
but conditional. It merely remitted his sentence. It does not reach the offense itself. Gutierrez must be judged upon the fact of his conviction for murder without regard to the pardon (which he invoked in defense). The crime was actually qualified by treachery and aggravated by its having been committed in hand, by taking advantage of his official position (Gutierrez being municipal mayor at the time) and with the use of motor vehicle. The degree ofmoral turpitude involved is such as to justify his being purged from the profession.
Case Digest on Felicidad L. Oronce, et al. v. Court of Appeals, et. al. (298 SCRA 133) Gross Misconduct
Facts: During a dispute over land, Flaminiano illegally took possession of the property in litigation using abusive methods. She was aided by her husband, a lawyer. The illegal entry took place while the case was pending in the CA & while a writ of preliminary injunction was in force. Held: Atty. Flaminiano’s acts of entering the property without the consent of its occupants & in contravention of the existing writ or preliminary injunction & making utterances showing disrespect for the law & this Court, are unbecoming of a member of the Bar. Although he says that they “peacefully” took over the property, such “peaceful” take-over cannot justify defiance of the writ of preliminary injunction that he knew was still in force. Through his acts, he has flouted his duties as a member of the legal profession. Under the Code of Professional Responsibility, he is
prohibited from counseling or abetting “activities aimed at defiance of the law or at lessening confidence in the legal system.”
JON DE YSASI III, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION (FOURTH DIVISION), CEBU CITY,
and JON DE YSASI, respondents.
This case is truly unique. For this case is an action filed by an only son, his father's namesake, the only child and therefore the only heir against his own father.
Two (2) observations were noted that may justify why this labor case deserves special considerations. First, most of the complaints that petitioner and private respondent had with each other, were personal matters affecting father and son relationship. And secondly, if any of the complaints pertain to their work, they allow their personal relationship to come in the way.
Facts: Petitioner Jon de Ysasi III was employed by his father Jon de Ysasi and private respondent in this case, as farm administrator of Hacienda Manucao in Hinigaran, Negros Occidental sometime in April, 1980. His employment as farm administrator was on a fixed salary, and his duties include supervision of daily activities and operations of the sugarcane farm such as land preparation, planting, etc. He lived on the farm, occupying the upper floor of the house there. Following his marriage on June 6, 1982, petitioner moved to Bacolod City with his wife and commuted to work daily. He suffered various ailments and was hospitalized on two separate occasions in June and August, 1982.
In November, 1982, he underwent fistulectomy, or the surgical removal of the fistula, a deep sinuous ulcer. In June, 1983, he was confined for acute gastroenteritis and, thereafter, for infectious hepatitis from December, 1983 to January, 1984.
During the entire periods of petitioner's illnesses, private respondent took care of his medical expenses and petitioner continued to receive compensation.
However, in April, 1984, without due notice, private respondent ceased to pay the latter's salary. Petitioner made oral and written demands for an explanation for the sudden withholding of his salary from Atty. Apolonio Sumbingco, private respondent's auditor and legal adviser, as well as for the remittance of his salary. Both demands, however, were not acted upon. Petitioner then filed an action with the NLRC, Regional Arbitration Branch No. VI, Bacolod City, for illegal dismissal against private respondent.
NLRC dismissed the case and the subsequent MR filed by the petitioner was denied. The SolGen opined that the
petitioner's illness and strained family relation with respondent Jon de Ysasi II may be considered as justifiable reason for petitioner Jon de Ysasi III's absence from work during the period of October 1982 to December 1982. In any event, such absence does not warrant outright dismissal without notice and hearing.
ISSUE (relevant to the subject PALE): Was the conduct of the lawyers in this case in violation of the Code of Professional Responsibility?
Ruling: The conduct of the respective counsel of the parties, as revealed by the records, sorely disappoints the Court and invites reproof. Both counsels may well be reminded that their ethical duty as lawyers to represent their clients with zeal goes beyond merely presenting their clients' respective causes in court. It is just as much their responsibility, if not more importantly, to exert all reasonable efforts to smooth over legal conflicts, preferably out of court and especially in consideration of the direct and immediate consanguineous ties between their clients. Once again, we reiterate that the useful function of a lawyer is not only to conduct litigation but to avoid it whenever possible by advising settlement or withholding suit. He is often called upon less for dramatic forensic exploits than for wise counsel in every phase of life. He should be a mediator for concord and a conciliator for compromise, rather than a virtuoso of technicality in the conduct of litigation. Rule 1.04 of the Code of Professional Responsibility explicitly provides that "(a) lawyer shall encourage his client to avoid, end or settle the controversy if it will admit of a fair settlement." On this point, we find that both counsels herein fell short of what was expected of them, despite their avowed duties as officers of the court. The records do not show that they took pains to initiate steps geared toward effecting a rapprochement between their clients. On the contrary, their acerbic and protracted exchanges could not but have exacerbated the situation even as they may have found favor in the equally hostile eyes of their respective clients. In the same manner, we find that the labor arbiter who handled this regrettable case has been less than faithful to the letter and spirit of the Labor Code mandating that a labor arbiter "shall exert all efforts towards the amicable settlement of a labor dispute within his jurisdiction." Note: Petitioner was illegally dismissed. Dispositive portion: Private respondent is ORDERED to pay petitioner back wages for a period not exceeding three (3) years, without qualification or deduction, and, in lieu of reinstatement, separation pay equivalent to one (1) month for every year of service, a fraction of six (6) months being considered as one (1) whole year.
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PAJARES VS. ABAD SANTOS30 SCRA 748
FACTS:
1. Udharam Bazar & Co., sued Gloria Pajares before the Municipal Court of Manila for recovery of a certain sum of money. (Php 354.85)
2. The complaint averred that defendant ordered from the plaintiff quantities of ready made goods and delivered to her in good condition and same were already sold, but did not make the full payment up to the present time.
3. Instead of answering the complaint, Gloria moved for a bill of particulars praying that Udharam Bazar itemize the kinds of goods which she supposedly purchased from the said company, the respective dates they were taken and by whom they were received as well as their purchase prices, alleging that without this bill she would not be able to meet the issues raised in the complaint.
4. The court , through Judge Estrella Abad Santos, denied the motion for a bill of particulars.
5. When her motion for reconsideration was denied, Gloria filed a petition for certiorari in the CFI of Manila alleging that respondent Judge acted in grave abuse of discretion in denying her motion for a bill of particulars
6. Udharam Bazar filed a motion to dismiss the petition for the reasons that the allegations of the complaint are clear, specific and sufficiently appraise the defendant of the nature of the case of action against her and that the things asked for in the motion for a bill of particulars are evidentiary matters which are beyond the pale of such bill.
7. The lower court dismissed the petition also a motion for reconsideration
8. Hence this appeal. ISSUE:
Are the allegations of the complaint sufficient to appraise Gloria Pajares of the nature of the cause of action against her?
HELD:
It is plain and clear that no error of law, much less any grave abuse of discretion, was committed by respondent judge in denying appellant's motion for a bill of particulars in the collection case instituted in the Municipal Court of Manila by private respondent- appellee for the recovery of her indebtedness of P 354.85 representing the overdue balance of her account for ready-made goods ordered by and delivered to her in 1961. Appellee’s complaint precisely and concisely informed appellant of the ultimate or essential facts constituting the cause of action against her, in accordance with the requirement of the Rules of Court. It was therefore improper for appellant, through her counsel, to insist on her motion that appellee as plaintiff “submit a bill of particulars, specifying therein in detail the goods represented by the alleged amount of P 354.85, giving the dates and invoice numbers on which they were delivered to the defendant, the amount due on each such invoice and by whom they were received.|” These particulars sought all concerned evidentiary matters and do not come within the scope of Rule 12, Section 1 of the Rules of Court which
permits a party “to move for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him to prepare his responsive pleading or to prepare for trial.”
MANUEL C. YUHICO, vs. ATTY. FRED L. GUTIERREZ A.C. No. 8391 November 23, 2010
FACTS: Atty. Fred Gutierrez asked for a cash loan of
P30,000.00 from Manuel Yuhico. Gutierrez then claimed that he needed money to pay for the medical expenses of his mother who was seriously ill. Yuhico immediately handed the money. In turn, Gutierrez promised to pay the loan very soon, since he was expecting to collect his attorney's fees from a Japanese client. Gutierrez again asked Yuhico for a loan, in the amount of P60,000.00, allegedly to pay the medical expenses of his wife who was also hospitalized. Again, Yuhico readily issued to Gutierrez a check amounting to P60,000.00. Again, Gutierrez promised to pay his two loans totalling to P90,000.00 "within a short time." Yuhico asked Gutierrez to pay his loans. Gutierrez failed to pay and in a text message he asked for an extension of time to pay. Later, thru a text message, Gutierrez attempted to borrow money from Yuhico again. Gutierrez claimed that his daughter needed P70,000.00 to pay the fees required to take the licensure examination in the U.S. Medical Board. Gutierrez assured him that he will pay all his debts within a month. However, this time, Yuhico refused to lend Gutierrez any amount of money. Instead, he demanded from Gutierrez the payment of his debts. Gutierrez then sent another text message to Yuhico and requested him to give him another week to pay his debts. Gutierrez failed to make the payment. Yuhico's counsel sent a demand letter to Gutierrez to pay his debts, but to no avail. Thus, Yuhico filed the instant
complaint against Gutierrez before the Integrated Bar of the Philippines-Commission on Bar Discipline (IBP-CBD). On January 12, 2006, the IBP-CBD directed Gutierrez to submit his Answer on the complaint against him. In a Resolution, IBP-CBD found Gutierrez guilty of non-payment of just debts and ordered him to return the amount of P90,000.00 to Yuhico, with interest until full payment.
ISSUE: Whether or not Gutierrez guilty of non-payment of just debts and likewise guilty of gross misconduct.
RULING: Atty. Gutierrez is guilty of GROSS MISCONDUCT. He is ordered to pay the amount of P90,000.00 to the Yuhico with interest.
Deliberate failure to pay just debts constitutes gross misconduct, for which a lawyer may be sanctioned with suspension from the practice of law. Lawyers are
instruments for the administration of justice and vanguards of our legal system. They are expected to maintain not only legal proficiency, but also a high standard of morality, honesty, integrity and fair dealing so that the people¶s faith and confidence in the judicial system is ensured. They must, at all times, faithfully perform their duties to society, to the bar, the courts and to their clients, which include prompt payment of financial obligations. They must conduct themselves in a manner that reflects the values and norms of the legal profession as embodied in the Code of Professional Responsibility. In the instant case, there is no question as to Gutierrez's guilt. His admission of the loan he contracted and his failure to pay the same leaves no room for interpretation. Neither can he justify his act of non-payment of debt by his dire financial condition. Gutierrez should not have
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contracted loans which are beyond his financial capacity to pay.
Likewise, it cannot be overlooked Gutierrez's propensity of employing deceit and misrepresentations for the purpose of obtaining debts without the intention of paying them. Records show Gutierrez's pattern of habitually making promises of paying his debts, yet repeatedly failing to deliver. The series of text messages he sent to Yuhico promising to pay his loans, while simultaneously giving excuses without actually making good of his promises, is clearly reprehensible. Undoubtedly, his acts demonstrate lack of moral character to satisfy the responsibilities and duties imposed on lawyers as professionals and as officers of the court. Supreme Court also noted that in Huyssen v. Atty. Gutierrez, the Court had already disbarred Gutierrez from the practice of law for gross misconduct due to non-payment of just debts and issuance of bouncing checks. In view of the foregoing, while the court agrees with the findings of the IBP, it cannot, however, adopt its recommendation to disbar Gutierrez for the second time, considering that Gutierrez had already been previously disbarred. Indeed, as the IBP pointed out, the court does not have double or multiple disbarments in its laws or jurisprudence. Neither do it have a law mandating a minimum 5year requirement for readmission, as cited by the IBP. Thus, while Gutierrez's infraction calls for the penalty of disbarment, court cannot disbar him anew.
Nelia Pasumbal de Chavez-Blanco vs Atty. Jaime Lumasag, Jr, R E S O L U T I O N TINGA, J.:
This is an administrative complaint for disbarment filed
by complainant Nelia P. de Chavez-Blanco
against respondent Atty. Jaime Lumasag, Jr., for deceit, dishonesty and gross misconduct.
In a Report and Recommendation dated 11 December 2001,[1] the Integrated Bar of the Philippines (IBP)
Commissioner Milagros San Juan found respondent guilty of the charges and recommended the penalty of disbarment. Subsequently, the IBP Board of Governors reduced the penalty to a five (5)-year suspension in its Resolution XV-2002-229 dated 29 June 2001. In a Resolution dated 9 December 2002, the Court, however, remanded the case to the IBP in view of its findings that no formal
hearing/investigation was conducted.
Upon remand to the IBP, the case was re-assigned to IBP Commissioner Dennis A.B. Funa and hearings were accordingly held thereafter.
Through her attorney-in-fact, Atty. Eugenia J. Muñoz, complainant alleged in her Complaint[2] that she was a
resident of theUnited States of America together with her husband, Mario Blanco. She also stated that she owned two (2) adjacent parcels of land in Quezon City, each with an area of 400 square meters, covered by Transfer Certificates of Title (TCT) Nos. 22162 and 22163 registered in her name. In a document dated 20 November 1989, she authorized respondent, who were her husband’s first cousin, to sell said lots.[3]
In a letter dated 20 March 1990, respondent reported that he had sold only one lot for the price of P320,000.00 and therefrom he deducted P38,130.00 for taxes and
commissions. And, allegedly, per complainant’s instructions, he remitted the remaining balance of P281,900.00 to a certain Belen Johnnes.[4]
In 1995, complainant was informed by respondent that the other lot remained unsold due to the presence of squatters on the property.
In December 1998, Mario Blanco discovered that in truth, the two (2) lots had been sold on 11 March 1990 to the spouses Celso and Consolacion Martinez for the price of P1,120,000.00, and that new titles had been issued to the transferees. Mario Blanco confronted respondent with these facts in a letter, but the latter disregarded the same. Thus, in May 1999, complainant, through Atty. Muñoz sent a demand letter to respondent directing him to remit and turn over to her the entire proceeds of the sale of the properties.
Soon thereafter, respondent admitted the sale of the properties and his receipt of its proceeds, but he never tendered or offered to tender the same to complainant. Despite repeated and continued demands, respondent has since not remitted the amount equivalent to P838,100.00 (P278,000.00 for the first parcel of land and P560,000.00 for the second).[5]
Complainant also averred that the Special Power of Attorney dated 16 January 1989, which respondent had used to sell the lots is a forgery and a falsified document, as the signature therein were not the real signatures of
complainant and her spouse. In addition, they could not have acknowledged the document before a notary, as they were not in the Philippines at the time.[6]
For his part, respondent vehemently denied all the accusations of deceit, dishonesty and gross misconduct.[7]
Respondent countered that Mario Blanco was the true owner of the properties, which had to be titled in complainant’s name, as Mario Blanco was a U.S. citizen. Mario Blanco had requested him to look for a buyer of the properties and, in the course of selling them, respondent claimed that he had only transacted with the former and never with complainant. Respondent averred that he had been authorized in November 1989 to sell the property, through a Special Power of Attorney, for a price of not less thanP250,000.00 net for the owner.[8]
Respondent also alleged that the deed of absolute sale if the two (2) lots had been executed on 19 March 1990 but, only one lot was initially paid in the amount of P281,980.00, which he immediately remitted to Mario Blanco. The payment for the other lot was withheld, pending the relocation of the squatters who had been occupying the premises. And when respondent had finally collected the proceeds of the second lot more than three (3) years after, he asked Mario Blanco if the former could use the amount for a real estate venture whose profit, if successful, he would share with the latter. Mario Blanco allegedly did not think twice and consented to the proposal. The venture, however, did not push through.[9]
Respondent strongly maintained that the two (2) lots had been sold for only P563,960.00.[10]
Finally, respondent denied the charge of falsification. He claimed that complainant and her spouse, Mario Blanco, had in fact signed the Special Power of Attorney, but it was only notarized later.[11]
In his Report and Recommendation dated 4 December 2006, Atty. Dennis A.B. Funa arrived at the following findings:
It appears from the records that the two lots were sold by Respondent
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for P560,000.00, not P1,120,000.00 as alleged by Complainant. The basis is the Deed of Absolute Sale dated March 11, 1990 which shows that the two lots composing 800 sq. meters being sold forP560,000.00. There appears to be no documentary basis for the claimed amount of P1,120,000.00 of Complainant. However, Respondent in his Comment stated that the two lots were sold by him for P563,960.00. In any case, we shall uphold and apply the amount stated in the Deed of Absolute Sale.
In Respondent’s letter
dated March 20, 1990, he acknowledged that he already received P320,000.00 as the “total value of one lot”. Moreover, the computation shows that the P320,000.00 was only for 400 sq.m. as the
computation stated: “400 sq.m.
x 800p/sqm=P320,000.00.” Therefore, if the first lot was sold for P320,000.00, then the second lot must have been sold for P240,000 x x x
x x x there was clear
deception on the part of
Respondent when he wrote the letter
dated March 20, 1990 “informing” the Blanco spouses that he had sold only
one of the two parcels of land
for P320,000.00. This is belied by the fact that on March 11, 1990, or 9 days before he wrote the letter, a Deed of Absolute Sale was executed by him selling the two lots for P560,000.00. This Deed of Absolute Sale was notarized on March 19, 1990. During the hearing, Respondent admitted that the Deed of Sale covered
two lots. Clearly, Respondent was not
forthcoming towards the Blanco spouses.
x x x
x x x Instead of representing that two lots had been sold
for P560,000.00. Respondent only represented that he sold only one lot forP320,000.00 and pocketing the balance of P240,000.00.
x x x
During the course of hearing, Respondent claims that the Deed of Sale referred to above is a fake, and that there is a Deed of Sale showing a selling price of P320,000.00 which is the real Deed of Sale. However, no such Deed of Sale has been presented by Respondent and no such Deed of Sale appears in the records. Later in the hearing, Respondent retracted his statement claiming he was merely confused.
As for the alleged falsification of a Special Power of Attorney dated January 16, 1989, wherein the signatures of the Blanco spouses appear in the SPA when they were not in the Philippines on January 16, 1989 but were allegedly in the United States, their absence in the country has not been satisfactorily established since mere xerox copies of their passports, although noted by a notary public, cannot duly establish their
absence in the country on that date. Other acceptable documents such as a
certification from the Bureau of Immigration would have been
appropriate but which, however, had not been presented. In any case, Respondent denies the charge of
falsification.[12] (Citations omitted)
[Emphasis supplied]
Accordingly, the IBP Commissioner recommended that, in view of the fact that respondent was already 72 years old, he be meted out the penalty of suspension of one (1)-year suspension, not disbarment as had been prayed for and not 5 year-suspension as had been earlier resolved by the IBP Board of Governors. Moreover, the IBP Commissioner recommended that respondent be ordered to deliver to Complainant the amount of P240,000.00 plus the legal interest rate of 6% per annum computed from March 1990.
On 31 May 2007, the IBP Board of Governors passed Resolution No. XVII-2007-222 adopting and approving the Report and Recommendation of the IBP Commissioner.[13]
The Court agrees with the findings and conclusion of the IBP, but a reduction of the recommended penalty is called for, following the dictum that the appropriate penalty for an errant lawyer depends on the exercise of sound judicial discretion based on the surrounding facts.[14]
A lawyer may be disciplined for any conduct, in his professional or private capacity, that renders him unfit to continue to be an officer of the court. Canon 1 of the Code of Professional Responsibility commands all lawyers to uphold at all times the dignity and integrity of the legal
profession. Specifically, Rule 1.01 thereof provides:
Rule 1.01—A lawyer shall not engage in unlawful, dishonest and immoral or deceitful conduct.
There is no need to stretch one’s imagination to arrive at an inevitable conclusion that respondent committed dishonesty and abused the confidence reposed in him by the complainant and her spouse.
Records show that two lots had been sold by respondent as evidenced by the Deed of Absolute Sale of 11 March 1990. Respondent, however, taking advantage of the absence of complainant and her spouse from the Philippines and their complete trust in him, deceitfully informed them in a letter dated 20 March 1990 that he had sold only one. It can be reasonably deduced from the exchanges between the parties that the proceeds of the first lot had been transmitted to complainant and her spouse. Respondent’s contention, though, that he had been authorized to retain the proceeds of the second is specious, as complainant and her spouse could not have given the same, having been left in the dark as regards its sale. And despite repeated demands, to date, there is no showing that the outstanding amount has been paid. Thus, respondent’s deceitful conduct warrants disciplinary sanction and a directive for the remittance of the remaining proceeds is in order.
As to the charge of falsification, the Court agrees with the IBP that the same appears to be unsubstantiated. Settled is the rule that, in administrative proceedings, the burden of proof that the respondent committed the acts complained of rests on the complainant. In fact, if the complainant, upon whom rests the burden of proving his cause of action, fails to show in a satisfactory manner the facts upon which he bases his claim, the respondent is under no obligation to prove his exception or defense.[15] Mere
allegation is not evidence and is not equivalent to proof.[16]
7
Respondent’s actions erode the public perception of the legal profession. They constitute gross misconduct for which he may be suspended, following Section 27, Rule 138 of the Rules of Court, which provides:
Sec. 27. Disbarment or
suspension of attorneys by Supreme Court, grounds therefor.— A member of the bar
may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before the admission to practice, or for a willful disobedience appearing as attorney for a party to a case without authority to so do.
Complainant asks that respondent be
disbarred. The Court finds, however, that suspension from the practice of law is sufficient to discipline respondent. The supreme penalty of disbarment is meted out only in clear cases of misconduct that seriously affect the standing and character of the lawyer as an officer of the court and member of the bar. While the Court will not hesitate to remove an erring attorney from the esteemed brotherhood of lawyers, where the evidence calls for it, the Court will also not disbar him where a lesser penalty will suffice to accomplish the desired end. In this case, the Court finds the recommended penalty of suspension of two (2) years for respondent to be too severe, considering his advanced age. The Court believes that a suspension of six (6) months is sufficient. Suspension, by the way, is not primarily intended as punishment, but as a means to protect the public and the legal profession.[17]
WHEREFORE, in view of the foregoing, respondent
Atty. Jaime Lumasag, Jr. is SUSPENDED from the practice of law for a period of SIX (6) MONTHS, effective immediately, with a warning that a repetition of the same or a similar act will be dealt with more severely. Further, respondent is ordered to deliver to complainant the amount
of P240,000.00 plus legal interest rate of 6% per annum computed from March 1990.
Let notice of this Resolution be spread in
respondent’s record as an attorney in this Court, and notice thereof be served on the Integrated Bar of
the Philippines and on the Office of the Court Administrator for circulation to all the courts concerned.
