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[A.C. No. 4017. September 29, 1999]
GATCHALIAN PROMOTIONS TALENTS POOL, INC., complainant, vs. ATTY. PRIMO
R. NALDOZA, respondent.
D E C I S I O N
PER CURIAM:
On April 19, 1993, Gatchalian Promotions Talents Pool, Inc., filed before this
Court a Petition for disbarment against Attorney Primo R. Naldoza. The precursor
of this Petition was the action of respondent, as counsel for complainant, appealing
a Decision of the Philippine Overseas Employment Agency (POEA). In relation to theappeal, complainant asserts that respondent should be disbarred for the following
acts:
1. Appealing a decision, knowing that the same was already final and
executory
2. Deceitfully obtaining two thousand, five hundred and fifty-five US
dollars (US$2,555) from complainant, allegedly for cash bond in the
appealed case
3. Issuing a spurious receipt to conceal his illegal act.[1]
In his Answer,[2]
respondent denies that he persuaded complainant to file an
appeal. On the contrary, he asserts that it was the complainant who insisted on
appealing the case in order to delay the execution of the POEA Decision.
[3]
He alsocontroverts complainants allegation that he asked for a cash bond and that he
issued the fake receipt.[4]
In a Resolution dated May 17, 1993, this Court referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.
The pertinent portions of the complaint were summarized by the IBP in this
wise:
Under its petition, complainant alleges that the respondent was given the task to
defend the interest of the complainant corporation in POEA Case No. 8888-06-468,
entitled Olano, et al. versus Gatchalian Promotions Talents Pool, Inc., et al.; that
when the said case was resolved in favor of the complainant therein on October 5,
1992, the respondent Atty. Naldoza knowing fully well that the said decision had
already become final and unappealable[,] through malpractice in [an] apparent
desire to collect or to bleed his client of several thousand pesos of attorneys fees,
convinced the complainant to appeal the case before the Supreme Court. Thus, on
December 14, 1992, the respondent filed with the Supreme Court a Petition for
Review which was docketed as G.R. No. 107984 and that two (2) days thereafter
misrepresented to the complainant corporation that the complainant ha[d] to pay,
which it did, *a+ Cash Bond in UNITED STATES DOLLAR amounting to TWO
THOUSAND FIVE HUNDRED FIFTY FIVE (U.S. $2,555.00) to the Supreme Court in
order that the said appealed case could be heard or acted upon by the Supreme
Court. The said amount was given to the respondent.
x x x *S+ubsequently the complainant corporation came to know that the fees to bepaid to the Supreme Court consist[ed] only of normal filing and docket fees for such
kind of appeal but in order to cover up respondents misrepresentation, Atty.
Naldoza presented complainant a fake xerox copy of an alleged Supreme court
receipt representing payment of U.S. $2,555.00.
Subsequent verification from the Supreme Court made by the complainant
corporation revealed that the said receipt issued by the treasurers office of the
Supreme Court x x x [was] spurious, meaning a fake receipt. The said verification
revealed that what was only paid by the respondent to the Supreme court was the
amount of P622.00 as shown by the enumerated legal fees of the Supreme Court
Docket-Receiving Section showing the handwritten name of the respondent forpurpose of showing that the said computation was requested by and addressed to
the respondent.[5]
(citations omitted)
Meanwhile, a criminal case[6]
for estafa based on the same facts was filed
against herein respondent before the Regional Trial Court (RTC) of Makati City,
Branch 141. Although acquitted on reasonable doubt, he was declared civilly liable
in the amount of US$ 2,555.
Thereafter, respondent filed before the IBP a Manifestation with Motion to
Dismiss on July 22, 1996, on the ground that he had already been acquitted in the
criminal case for estafa. Complainant opposed the Motion.[7]
On February 16, 1998, this Court received the IBP Board of Governors
Resolution, which approved the investigating commissioners report
[8]
andrecommendation that respondent be suspended from the practice of law for one
(1) year. In his Report, Investigating Commissioner Plaridel Jose justified his
recommendation in this manner:
x x x *R+espondent fails to rebut the position of the complainant that the signature
[on the receipt for the amount of $2,555.00] was his. Hence, respondent anchors
his position on a mere denial that it is not his signature. Likewise, the respondent
denies the check voucher dated December 15, 1992, and the encircled signature of
the respondent, which x x x according to him is falsified and irregular. No evidence,
however, was presented by the respondent that his signature therein was falsified
and irregular. [As to the altered Supreme Court Official Receipt, the respondent
denied] that he ha[d] anything to do with it because it was the complainant who
signed the Petition for Review and tried to explain that his name appear[ed] to be
the payee because he [was] the counsel of record of the petitioner. But while it is
true that the affiant in the said Petition for Review [was] Mr. Rogelio G. Gatchalian,
president of the complainant company, the respondent does not deny that he
signed the said petition as counsel of the petitioner corporation and that he was
actually the one who prepared the same and the notary public before whom the
affiant subscribed and [swore] as the one who caused the preparation of the said
petition.
The legal form (Exh. G) of the legal fees for the Petition for Review re G.R.
107984 was denied by the respondent because according to him he was never given
a chance to cross-examine the person who issued the [certification] x x x. However,
respondent does not deny that he is the person referred to by the handwrittenname P.R. Naldoza who paid the legal fees of P622.00.
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In addition to the said respondents Formal Offer of Evidence, he submitted to this
Commission as his most important piece of evidence the Decision of acquittal in
Criminal Case No. 93-8748 entitled People of the Philippines versus Primo R.
Naldoza, the copy of which Decision is appended to his Manifestation with Motion
to Dismiss dated July 22, 1996 praying for the dismissal of the present
administrative case in view of his being exonerated in the said criminal case based
on the same facts and evidence.[9]
(citations omitted)
Commissioner Jose brushed aside respondents contention that his acquittal in
the companion criminal case should result in the dismissal of this administrativecomplaint. The commissioner emphasized that the criminal case for estafa
[10]was
completely different from the proceedings before him; acquittal in the former did
not exonerate respondent in the latter.[11]
He further noted that the RTC Decision
itself hinted at the administrative liability of respondent, since it found him civilly
liable to herein complainant for $2,555.[12]
We agree with the IBP Board of Governors that respondent should be
sanctioned. However, the recommended penalty is not commensurate to the
gravity of the wrong perpetrated.
At the outset, the Court agrees with the IBP that respondents Motion to
Dismiss should be denied. In that Motion, he maintains that he should be cleared
of administrative liability, because he has been acquitted of estafa which involvedthe same facts. He argues that the issue involved there was the very same issue
litigated in this case,[13]
and that his exoneration was a result a full blown trial on
the merits of this case.[14]
In a similar case, we have said:
x x x The acquittal of respondent Ramos *of+ the criminal charge is not a bar to
these [administrative] proceedings. The standards of legal profession are not
satisfied by conduct which merely enables one to escape the penalties of xxx
criminal law. Moreover, this Court in disbarment proceedings is acting in an entirely
different capacity from that which courts assume in trying criminal cases. [15]
Administrative cases against lawyers belong to a class of their own.[16]
They are
distinct from and they may proceed independently of civil and criminal cases.
The burden of proof for these types of cases differ. In a criminal case, proofbeyond reasonable doubt is necessary;
[17]in an administrative case for disbarment
or suspension, clearly preponderant evidence is all that i s required.[18]
Thus, a
criminal prosecution will not constitute a prejudicial question even if the same facts
and circumstances are attendant in the administrative proceedings.[19]
It should be emphasized that a finding of guilt in the criminal case will not
necessarily result in a finding of liability in the administrative case .[20]
Conversely,
respondents acquittal does not necessarily exculpate him administratively. In the
same vein, the trial courts finding of civil liability against the respondent will not
inexorably lead to a similar finding in the administrative action before this
Court. Neither will a favorable disposition in the civil action absolve the
administrative liability of the lawyer.[21]
The basic premise is that criminal and civilcases are altogether different from administrative matters, such that the disposition
in the first two will not inevitably govern the third and vice versa. For this reason, it
would be well to remember the Courts ruling inIn re Almacen,[22]
which we quote:
x x x Disciplinary proceedings against lawyers are sui generis. Neither purely civil
nor purely criminal, they do not involve a trial of an action or a suit, but are rather
investigations by theCourt into the conduct of one of its officers. Not being
intended to inflict punishment, [they are] in no sense a criminal
prosecution. Accordingly, there is neither a plaintiff nor a prosecutor
therein. [They] may be initiated by the Court motu proprio . Public interest is [their]
primary objective, and the real question for determination is whether or not theattorney is still a fit person to be allowed the privileges as such. Hence, in the
exercise of its disciplinary powers, the Court merely calls upon a member of the Bar
to account for his actuations as an officer of the Court with the end in view of
preserving the purity of the legal profession and the proper and honest
administration of justice by purging the profession of members who by their
misconduct have prove[n] themselves no longer worthy to be entrusted with the
duties and responsibilities pertaining to the office of an attorney. x x x (emphasis
ours)
We shall now discuss seriatimthe specific charges against respondent.
First. Complainant alleges that respondent appealed the POEA Decision,
despite knowing that it had already become final and executory. The IBPinvestigating commissioner had no explicit finding on this point. Rogelio G.
Gatchalian testified that during the pendency of the appeal, his company had
received from the POEA a Writ of Execution which led him to the conlcusion that
they *had+ lost the case before the Supreme Court.[23]
This, however, does not
substantiate the charge.
Complainant has failed to present proof regarding the status of the
appeal. Neither has there been any showing that the appeal was dismissed on the
ground that the POEA Decision had become final and executory. Worse, there has
been no evidence that respondent knew that the case was unappealable. Indeed,
the records of this Court shows that the Petition for Review was dismissed for
petitioners failure to submit an Affidavit of Service and a legible duplicate of the
assailed Order. Clearly, this charge has no leg to stand on.Second.Be that as it may, we agree with the IBP that respondent obtained
from complainant the amount of $2,555, on the false representation that it was
needed for the appeal before this Court. According to Gatchalian,[24]
respondent
explained that the amount would cover all the expenses to be incurred in the
Petition for Review with the Supreme Court and which amount also will answer for
the payment as sort of deposit so that if our case is lost, the money will be given or
paid to the complainant in that case so that our deposit with the bank would not be
garnished.[25]
Corroborating Gatchalians testimony, Edna Deles declared that
respondent received the amount on the representation that it would be paid to
the Supreme Court in connection with the Olano case.[26]
The defense of denial proferred by respondent is not convincing. Quite thecontrary, when he paid P10,000 and issued a check to complainant as his moral
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allegations. Bayani Melo had signed as the representative of Ronald Reagan
Hernandez, while Matias Magnaye as a witness to the Consent to Quarry.
In reply, complainant submitted an affidavit, dated April 23, 1998, received by
this Court the following day. Respondent was required to file a rejoinder within 10
days, but he did not do so.
In her reply-affidavit, complainant submitted a copy of the resolution of the
provincial prosecutor of Batangas in I.S. No. 97-3353 (for falsification of public
document), finding probable cause against respondent and recommending the filing
of an information for falsification of a public document against all the respondentsnamed in the case, including herein respondent Atty. Alfredo Datingaling. The
prosecutor stated:
After a painstaking study and careful analysis of the evidence presented by both
parties, the undersigned has observed the following striking dissimilarities on the
two copies of the document Consent to Quarry (Authorization) which would
clearly distinguish one from the other, to wit:
Page 1 of the unnotarized consent to quarry dated July 2, 1997 reveals that it has
that blank space for the technical description of a parcel of land subject of their
agreement; it is undated; it is signed by Bayani Melo at the bottom but unsigned by
Lucila Umali Magboo and it has insertions and modifications thereon.
On the other hand, page 1 of the notarized copy of that consent to quarry revealsthat the technical description refers to two parcels of land located at Anilao,
Mabini, Batangas described in Tax Declaration No. 003-00097 and in the approved
plan/Application for Small Scale Mining Permit for Quarry; it is dated July 3, 1997,
it has two signatures of Bayani Melo and one signature of Ronald Reagan
Hernandez and it is also unsigned by Lucila Umali Magboo.
Page 2 of the unnotarized consent to quarry dated July 2, 1997 shows the
signatures of Mena U. Gerona, Feliciano Umali and Aurelia Miranda as well as the
signatures of witnesses Rosemarie, Matias, Geronimo and Apolonia before the
acknowledgment portion; a signature of Lucila N. Magboo at the acknowledgment
portion; blank as to the Notary Public and the Doc., Page No., Book No., and Series
of.
Page 2 of the notarized copy of the Consent to Quarry bears the signatures ofMena, Feliciano, and Aurelia as well as the witnesses before the acknowledgment
portion; it is dated July 2, 1997 and signed by Notary public A.R. Datingaling and it is
docketed as Doc. No. 3473, Page No. 67, Book No. XXVII, Series of 1997.
It has been also established that the said document was brought to Menas
residence on July 2, 1997 ready for signatures and in fact it was signed there by
Mena, Feliciano, Aurelia and Bayani Melo in the presence of those witnesses. After
the signing of said document, a copy was left with Mena and the other copies were
brought by the group of Bayani Melo, which copies were notarized by Atty. Alfredo
R. Datingaling on July 3, 1997. The issue now is whether the crime of falsification
has been committed by the respondents?
From the glaring dissimilarities between the copies of the document consent toquarry and the testimony of the complainant and his brother Feliciano, the
undersigned honestly believes that indeed the crime of falsification had been
committed by the respondents in conspiracy with one another. The evidence is
clear that Mena Umali and her brother and sisters had not presented themselves or
appeared before said Notary Public for the acknowledgment of said document as
their free act and voluntary deed and that the lots described in the notarized
document are different from the lot they intended to be the subject of their
agreement. From the unnotarized copy dated July 2, 1997 which bears the
proposed insertions/modifications, the land intended to be described as the subject
of that agreement is but a parcel of land while in the notarized copy, it describestwo parcels of land. Further, had the complainant and her brother and sisters
appeared before the Notary Public for notarization of said document, then there is
no reason why Lucila Magboo, Mena Umali, Feliciano Umali and Aurelia Miranda
would not be required to sign on the first page of the document. In fact, Bayani
Melo signed again the said document on the first page while Ronald Reagan
Hernandez who is already represented by Bayani Melo was required to sign said
document on the first page. Hence, there is sufficient ground to hold respondents
for trial for the said offense under I.S. No. 97-3353.
. . . .
WHEREFORE, in view of the foregoing, it is respectfully recommended that an
information for Falsification of Public Document be filed against all the respondentsunder I.S. No. 97-3353 . . . .[6]
In addition, complainant submitted on December 4, 2000 a list of criminal
cases, eight in all, filed against respondent, including that filed by
complainant. Four of the cases had been dismissed, while four others were
pending. Most of the cases were for violation of B.P. Blg. 22, estafa, and estafa
through falsification of a public document.
The case was referred to the Integrated Bar of the Philippines
(IBP). Thereafter, the IBP Investigating Commissioner, Atty. Renato G. Cunanan, to
whom this case was assigned, recommended the suspension of respondent Alfredo
R. Datingaling from the practice of the profession for a period of one year. In his
report, Atty. Cunanan stated:
We are therefore of the impression that, to say the least, the respondent has notshown qualities that endear him to the profession or the Bar. While complainants
present criminal case against the respondent may be pending, and he still enjoys
the presumption of innocence so far as Crim. Case No. 9426 (I.S. No. 97-3353) is
concerned, the fact remains that for purposes of this administrative complaint, the
evidence presented by the complainant considered vis--vis the unconvincing
explanation of the respondent, his silence and failure to file a rejoinder, and the
criminal cases filed against him, it is clear that Atty. Alfredo R. Datingaling has
violated the Code of Professional Responsibility, more particularly Canons 1 and 7.
We therefore recommend the suspension of Atty. Alfredo R. Datingaling from the
practice of the profession for a period of one (1) year.[7]
The IBP Board of Governors approved the report with modification:
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RESOLVED to ADOPT and APPROVE, . . . the Report and Recommendation of the
Investigating Commissioner . . .; and, finding the recommendation fully supported
by the evidence on record and the applicable laws and rules, with modification, and
considering respondents violation of the Code of Professional Responsibility more
particularly Canons 1 and 7, Respondents Commission as Notary Public is hereby
SUSPENDED with disqualification for appointment as Notary Public for two years
from receipt of notice.[8]
Respondent filed a motion for reconsideration declaring himself innocent and
insisting he had no participation in the transaction. In addition, he denied receipt ofthe resolution requiring him to file a rejoinder. However, his motion was denied by
the IBP Board of Governors on the ground that it no longer had jurisdiction over the
case as it had already been endorsed to this Court. The IBP Board cited Rule 139-B,
12(b) of the Rules of Court as the basis of this resolution.
Rule 139-B, 12(b) provides:
Section 12.Review and decision by the Board of Governors.
. . . .
(b) If the Board, by the vote of a majority of its total membership, determines
that the respondent should be suspended from the practice of law or disbarred, it
shall issue a resolution setting forth its findings and recommendations which,
together with the whole record of the case, shall forthwith be transmitted to theSupreme Court for final action.
As the provision reads, no mention is made of motions for
reconsideration. However, it was held in Halimao v. Villanueva[9]
that although Rule
139-B, 12(c) does not mention motions for reconsideration, there is nothing in its
text or history which prohibits the filing of such motion. A motion for
reconsideration of a resolution of the IBP Board of Governors may be filed within 15
days from notice to a party appealing. Indeed, the filing of such motion before the
Board is in fact encouraged before resort is made to this Court as a matter of
exhaustion of administrative remedies, to afford the agency rendering the
judgment an opportunity to correct any error it may have committed through a
misapprehension of facts or misappreciation of the evidence.[10]
Be that as it may and considering that the motion for reconsideration was filedafter the records of this case had been forwarded to this Court, we have decided to
treat the motion as a petition for review within the contemplation of Rule 139-B,
12 (b).
After due consideration of respondents motion for reconsideration, we find
the motion to be without merit.
First. As regards the charge of falsification of a public document filed against
respondent, the records show that as of the date of filing of respondents Urgent
Motion for Reconsideration on September 16, 2002, the same is still pending trial
before Branch 8, Regional Trial Court of Batangas City.[11]
Respondent claims that
although he notarized the document, he had no participation whatsoever in the
transaction. He merely notarized the document on the representation of thepersons who appeared before him.
[12]
The power to disbar must be exercised with great caution, and only in a clear
case of misconduct that seriously affects the standing and character of a
respondent as an officer of the court and as a member of the bar .[13]
Disbarment
should never be decreed where any lesser penalty, such as temporary suspension,
could accomplish the end desired.[14]
To be sure, conviction in a criminal case is not
necessary for finding a member of the bar guilty in an administrative
proceeding. As we have held inCalub v. Suller,[15]
the dismissal of a criminal case is
not determinative of the liability of the accused for disbarment. In the case at bar,
however, the criminal prosecution based on the same acts charged in this case isstill pending in the court. To avoid contradictory findings, therefore, any
administrative disciplinary proceedings for the same act must await the outcome of
the criminal case for falsification of a public document.
Second. The findings of IBP Investigating Commissioner, Atty. Renato
Cunanan, as to the violation of Act No. 2103 are fully supported by the
evidence. Act No. 2103, 1(a) provides:
The acknowledgment shall be made before a notary public or an officer duly
authorized by law of the country to take acknowledgments of instruments or
documents in the place where the act is done. The notary public or the officer
taking the acknowledgment shall certify that the person acknowledging the
instrument or document is known to him and that he is the same person whoexecuted it, and acknowledged that the same is his free act and deed. The
certificate shall be made under his official seal, if he is by law required to keep a
seal, and if not, his certificate shall so state.[16]
Respondent had a duty to require the persons claiming to have executed the
document to appear personally before him and to attest to the contents and truth
of what are stated in the document. If the parties were represented by other
persons, their representatives names should appear in the said documents as the
ones who had executed the same and the latter should be required to affirm their
acts.[17]
Respondent failed to do this.
Respondent also failed to controvert complainants evidence that Wendy
Sunshine Umali are actually two different persons named Wendy and Sunshine,
both surnamed Umali; that they were minors at the time of the execution of theaforesaid document; and that their signatures therein had been made by an
unidentified person. It is clear even from the face of the Consent to Quarry that
Wendy and Sunshine Umali are two different minors, who were represented by a
person who signed the document in their behalf, thus lending credence to
complainants claim that the document is fictitious. In fact, the residence certificate
number of Wendy Sunshine Umali is not stated in the notarized document. In
addition, page one of the agreement appears to have been intercalated and to have
been typed with a different machine.
The acknowledgment of a document is not an empty act. By it a private
document is converted into a public document, making it admissible in court
without further proof of its authenticity.[18]
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The importance of the function of a notary public cannot therefore be
overemphasized. No less than the public faith in the integrity of public documents
is at stake in every aspect of that function.
However, the suspension of respondent from his commission as a notary
public for two years, as recommended by the IBP Board of Governors, is too severe
a penalty for what he has committed. InVillarin v. Sabate, Jr.,[19]
this Court
suspended respondents commission as a notary public for one year for notarizing
the verification of a motion to dismiss when the fact was that three of the affiants
had not appeared before him and for notarizing the same instrument of which hehad been one of the signatories. In accordance with that case, the suspension of
respondent from his commission as notary public for one year would be proper.
WHEREFORE, respondent Atty. Alfredo Datingaling is found guilty of violation
of Act No. 2103, 1(a) and is hereby SUSPENDED from his commission as notary
public for a period of one (1) year, with WARNING that a repetition of the same or
similar negligent act charged in this complaint will be dealt with more severely. The
charge of falsifying a public document is DISMISSED without prejudice to the filing
of an administrative case for the same act should the evidence warrant such action.
SO ORDERED.
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[B.M. No. 793. July 30, 2004]
IN RE: SUSPENSION FROM THE PRACTICE OF LAW IN THE TERRITORY OF GUAM OF
ATTY. LEON G. MAQUERA
R E S O L U T I O N
TINGA,J.:
May a member of the Philippine Bar who was disbarred or suspended from
the practice of law in a foreign jurisdiction where he has also been admitted as an
attorney be meted the same sanction as a member of the Philippine Bar for the
same infraction committed in the foreign jurisdiction? There is a Rule of Courtprovision covering this cases central issue. Up to this juncture, its reach and
breadth have not undergone the test of an unsettled case.
In a Letterdated August 20, 1996,[1]
the District Court of Guam informed this
Court of the suspension of Atty. Leon G. Maquera (Maquera) from the practice of
law in Guam for two (2) years pursuant to the Decision rendered by the Superior
Court of Guam on May 7, 1996 in Special Proceedings Case No. SP0075-94,[2]
a
disciplinary case filed by the Guam Bar Ethics Committee against Maquera.
The Court referred the matter of Maqueras suspension in Guam to the Bar
Confidant for comment in its Resolutiondated November 19, 1996.[3]
Under Section
27, Rule 138 of the Revised Rules of Court, the disbarment or suspension of a
member of the Philippine Bar in a foreign jurisdiction, where he has also beenadmitted as an attorney, is also a ground for his disbarment or suspension in this
realm, provided the foreign courts action is by reason of an act or omission
constituting deceit, malpractice or other gross misconduct, grossly immoral
conduct, or a violation of the lawyers oath.
In a Memorandumdated February 20, 1997, then Bar Confidant Atty. Erlinda
C. Verzosa recommended that the Court obtain copies of the record of Maqueras
case since the documents transmitted by the Guam District Court do not contain
the factual and legal bases for Maqueras suspension and are thus insufficient to
enable her to determine whether Maqueras acts or omissions which resulted in his
suspension in Guam are likewise violative of his oath as a member of the Philippine
Bar.[4]
Pursuant to this Courts directive in itsResolutiondated March 18, 1997,[5]theBar Confidant sent a letter dated November 13, 1997 to the District Court of Guam
requesting for certified copies of the record of the disciplinary case against
Maquera and of the rules violated by h im.[6]
The Court received certified copies of the record of Maqueras case from the
District Court of Guam on December 8, 1997.[7]
Thereafter, Maqueras case was referred by the Court to the Integrated Bar of
the Philippines (IBP) for investigation report and recommendation within sixty (60)
days from the IBPs receipt of the case records.[8]
The IBP sent Maquera a Notice of Hearing requiring him to appear before the
IBPs Commission on Bar Discipline on July 28, 1998.[9]
However, the notice was
returned unserved because Maquera had already moved from his last knownaddress in Agana, Guam and did not leave any forwarding address.
[10]
On October 9, 2003, the IBP submitted to the Court its Report and
Recommendationand its Resolution No. XVI-2003-110, indefinitely suspending
Maquera from the practice of law within the Philippines until and unless he updates
and pays his IBP membership dues in full.[11]
The IBP found that Maquera was admitted to the Philippine Bar on February
28, 1958. On October 18, 1974, he was admitted to the practice of law in the
territory of Guam. He was suspended from the practice of law in Guam for
misconduct, as he acquired his clients property as payment for his legal services,
then sold it and as a consequence obtained an unreasonably high fee for handlinghis clients case.
[12]
In its Decision, the Superior Court of Guam stated that on August 6, 1987,
Edward Benavente, the creditor of a certain Castro, obtained a judgment against
Castro in a civil case. Maquera served as Castros counsel in said case. Castros
property subject of the case, a parcel of land, was to be sold at a public auction in
satisfaction of his obligation to Benavente. Castro, however, retained the right of
redemption over the property for one year. The right of redemption could be
exercised by paying the amount of the judgment debt within the aforesaid
period.[13]
At the auction sale, Benavente purchased Castros property for Five Hundred
U.S. Dollars (US$500.00), the amount which Castro was adjudged to pay him.
[14]
On December 21, 1987, Castro, in consideration of Maqueras legal services in
the civil case involving Benavente, entered into an oral agreement with Maquera
and assigned his right of redemption in favor of the latter.[15]
On January 8, 1988, Maquera exercised Castros right of redemption by paying
Benavente US$525.00 in satisfaction of the judgment debt. Thereafter, Maquera
had the title to the property transferred in his name.[16]
On December 31, 1988, Maquera sold the property to C.S. Chang and C.C.
Chang for Three Hundred Twenty Thousand U.S. Dollars (US$320,000.00).[17]
On January 15, 1994, the Guam Bar Ethics Committee (Committee) conducted
hearings regarding Maqueras alleged misconduct.[18]
Subsequently, the Committee filed a Petition in the Superior Court of Guam
praying that Maquera be sanctioned for violations of Rules 1.5 [19]and 1.8(a)[20]ofthe Model Rules of Professional Conduct (Model Rules) in force in Guam. In its
Petition,the Committee claimed that Maquera obtained an unreasonably high fee
for his services. The Committee further alleged that Maquera himself admitted his
failure to comply with the requirement in Rule 1.8 (a) of the Model Rules that a
lawyer shall not enter into a business transaction with a client or knowingly acquire
a pecuniary interest adverse to a client unless the transaction and the terms
governing the lawyers acquisition of such interest are fair and reasonable to the
client, and are fully disclosed to, and understood by the client and reduced in
writing.[21]
The Committee recommended that Maquera be: (1) suspended from the
practice of law in Guam for a period of two [2] years, however, with all but thirty(30) days of the period of suspension deferred; (2) ordered to return to Castro the
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difference between the sale price of the property to the Changs and the amount
due him for legal services rendered to Castro; (3) required to pay the costs of the
disciplinary proceedings; and (4) publicly reprimanded. It also recommended that
other jurisdictions be informed that Maquera has been subject to disciplinary action
by the Superior Court of Guam.[22]
Maquera did not deny that Castro executed a quitclaim deed to the property
in his favor as compensation for past legal services and that the transaction, except
for the deed itself, was oral and was not made pursuant to a prior written
agreement. However, he contended that the transaction was made three daysfollowing the alleged termination of the attorney-client relationship between them,
and that the property did not constitute an exorbitant fee for his legal services to
Castro.[23]
On May 7, 1996, the Superior Court of Guam rendered
its Decision[24]
suspending Maquera from the practice of law in Guam for a period of
two (2) years and ordering him to take the Multi-State Professional Responsibility
Examination (MPRE) within that period. The court found that the attorney-client
relationship between Maquera and Castro was not yet completely terminated when
they entered into the oral agreement to transfer Castros right of redemption to
Maquera on December 21, 1987. It also held that Maquera profited too much from
the eventual transfer of Castros property to him since he was able to sell the same
to the Changs with more than US$200,000.00 in profit, whereas his legal fees for
services rendered to Castro amounted only to US$45,000.00. The court also
ordered him to take the MPRE upon his admission during the hearings of his case
that he was aware of the requirements of the Model Rules regarding business
transactions between an attorney and his client in a very general sort of way.[25]
On the basis of the Decision of the Superior Court of Guam, the IBP concluded
that although the said court found Maquera liable for misconduct, there is no
evidence to establish that [Maquera] committed a breach of ethics in the
Philippines.[26]
However, the IBP still resolved to suspend him indefinitely for his
failure to pay his annual dues as a member of the IBP since 1977, which failure is, in
turn, a ground for removal of the name of the delinquent member from the Roll of
Attorneys under Section 10, Rule 139-A of the Revised Rules of Court.[27]The power of the Court to disbar or suspend a lawyer for acts or omissions
committed in a foreign jurisdiction is found in Section 27, Rule 138 of the Revised
Rules of Court, as amended by Supreme Court Resolutiondated February 13, 1992,
which states:
Section 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 forany 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 admission to practice , or for a willful disobedience
appearing as attorney for a party to a case without authority to do so. The practice
of soliciting cases at law for the purpose of gain, either personally or through paid
agents or brokers, constitutes malpractice.
The disbarment or suspension of a member of the Philippine Bar by a competent
court or other disciplinatory agency in a foreign jurisdiction where he has also
been admitted as an attorney is a ground for his disbarment or suspension if the
basis of such action includes any of the acts hereinabove enumerated.
The judgment, resolution or order of the foreign court or disciplinary agency shall
be prima facie evidence of the ground for disbarment or suspension (Emphasis
supplied).The Court must therefore determine whether Maqueras acts, namely:
acquiring by assignment Castros right of redemption over the property subject of
the civil case where Maquera appeared as counsel for him; exercising the right of
redemption; and, subsequently selling the property for a huge profit, violate
Philippine law or the standards of ethical behavior for members of the Philippine
Bar and thus constitute grounds for his suspension or disbarment in this
jurisdiction.
The Superior Court of Guam found that Maquera acquired his clients property
by exercising the right of redemption previously assigned to him by the client in
payment of his legal services. Such transaction falls squarely under Article 1492 in
relation to Article 1491, paragraph 5 of the Civil Code of the Philippines. Paragraph
5 of Article 1491[28]
prohibits the lawyers acquisition by assignment of the clients
property which is the subject of the litigation handled by the lawyer. Under Article
1492,[29]
the prohibition extends to sales in legal redemption.
The prohibition ordained in paragraph 5 of Article 1491 and Article 1492 is
founded on public policy because, by virtue of his office, an attorney may easily
take advantage of the credulity and ignorance of his client[30]
and unduly enrich
himself at the expense of his client.
The case of In re: Ruste[31]
illustrates the significance of the aforementioned
prohibition. In that case, the attorney acquired his clients property subject of a
case where he was acting as counsel pursuant to a deed of sale executed by his
clients in his favor. He contended that the sale was made at the instance of his
clients because they had no money to pay him for his services. The Court ruled thatthe lawyers acquisition of the property of his clients under the circumstances
obtaining therein rendered him liable for malpractice. The Court held:
Whether the deed of sale in question was executed at the instance of the spouses
driven by financial necessity, as contended by the respondent, or at the latters
behest, as contended by the complainant, is of no moment. In either case an
attorney occupies a vantage position to press upon or dictate his terms to a
harassed client, in breach of the rule so amply protective of the confidential
relations, which must necessarily exist between attorney and client, and of the
rights of both.[32]
The Superior Court of Guam also hinted that Maquerasacquisition of Castros
right of redemption, his subsequent exercise of said right, and his act of selling theredeemed property for huge profits were tainted with deceit and bad faith when it
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concluded that Maquera charged Castro an exorbitant fee for his legal services. The
court held that since the assignment of the right of redemption to Maquera was in
payment for his legal services, and since the property redeemed by him had a
market value of US$248,220.00 as of December 21, 1987 (the date when the right
of redemption was assigned to him), he is liable for misconduct for accepting
payment for his legal services way beyond his actual fees which amounted only to
US$45,000.00.
Maqueras acts in Guam which resulted in his two (2) -year suspension from
the practice of law in that jurisdiction are also valid grounds for his suspension fromthe practice of law in the Philippines. Such acts are violative of a lawyers sworn
duty to act with fidelity toward his clients. They are also violative of the Code of
Professional Responsibility, specifically, Canon 17 which states that *a+ lawyer
owes fidelity to the cause of his client and shall be mindful the trust and confidence
reposed in him; and Rule 1.01 which prohibits lawyers from engaging in unlawful,
dishonest, immoral or deceitful conduct. The requirement of good moral character
is not only a condition precedent to admission to the Philippine Bar but is also a
continuing requirement to maintain ones goods standing in the legal profession.[33]
It bears stressing that the Guam Superior Courts judgment ordering
Maqueras suspension from the practice of law in Guam does not automatically
result in his suspension or disbarment in the Philippines. Under Section 27,[34]
Rule
138 of the Revised Rules of Court, the acts which led to his suspension in Guam are
mere grounds for disbarment or suspension in this jurisdiction, at that only if the
basis of the foreign courts action includes any of the grounds for disbarment or
suspension in this jurisdiction.[35]
Likewise, the judgment of the Superior Court of
Guam only constitutesprima facieevidence of Maqueras unethical acts as a
lawyer.[36]
More fundamentally, due process demands that he be given the
opportunity to defend himself and to present testimonial and documentary
evidence on the matter in an investigation to be conducted in accordance with Rule
139-B of the Revised Rules of Court. Said rule mandates that a respondent lawyer
must in all cases be notified of the charges against him. It is only after reasonable
notice and failure on the part of the respondent lawyer to appear during the
scheduled investigation that an investigation may be conducted ex parte.[37]The Court notes that Maquera has not yet been able to adduce evidence on
his behalf regarding the charges of unethical behavior in Guam against him, as it is
not certain that he did receive the Noticeof Hearingearlier sent by the IBPs
Commission on Bar Discipline. Thus, there is a need to ascertain Maqueras current
and correct address in Guam in order that another notice, this time specifically
informing him of the charges against him and requiring him to explain why he
should not be suspended or disbarred on those grounds (through this Resolution),
may be sent to him.
Nevertheless, the Court agrees with the IBP that Maquera should be
suspended from the practice of law for non-payment of his IBP membership dues
from 1977 up to the present.
[38]
Under Section 10, Rule 139-A of the Revised Rulesof Court, non-payment of membership dues for six (6) months shall warrant
suspension of membership in the IBP, and default in such payment for one year
shall be ground for removal of the name of the delinquent member from the Roll of
Attorneys.[39]
WHEREFORE, Atty. Leon G. Maquera is required to SHOW CAUSE, within
fifteen (15) days from receipt of this Resolution, why he should not be suspended or
disbarred for his acts which gave rise to the disciplinary proceedings against him in
the Superior Court of Guam and his subsequent suspension in said jurisdiction.
The Bar Confidant is directed to locate the current and correct address of Atty.
Maquera in Guam and to serve upon him a copy of this Resolution.In the meantime, Atty. Maquera is SUSPENDED from the practice of law for
ONE (1) YEAR or until he shall have paid his membership dues, whichever comes
later.
Let a copy of this Resolutionbe attached to Atty. Maqueras personal record in
the Office of the Bar Confidant and copies be furnished to all chapters of the
Integrated Bar of the Philippines and to all courts in the land.
SO ORDERED.
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[A.C. No. 4552. December 14, 2004]
JOSE A. ROLDAN, complainant, vs.ATTY. NATALIO PANGANIBAN and ATTY.
JUANITO P. NOEL, respondents.
R E S O L U T I O N
AUSTRIA-MARTINEZ,J.:
Before us is an administrative case for disbarment filed by complainant Jose A.
Roldan against respondents Atty. Natalio M. Panganiban and Atty. Juanito P.
Noel. Complainant charges that respondent lawyers reneged in their duties and
obligations towards him as their client, especially in the complainants right toappeal to the higher court after losing his case in the lower courts. The allegations
in the complaint dated February 12, 1996[1]
in support of the accusations are as
follows:
1. Na ako ang plaintiff sa Civil Case No. 144860-CV M.I.T. Branch 25 Jose A.
Roldan vs. Ramon Montano & Robert Montano, na ang Judge ay si Honorable
Severino De Castro, Jr. na ang kaso ay Recovery of possession with damages. Itoy
iniapila ko sa RTC Branch 43 with Civil Case No. 95-73739 na ang Judge naman dito
ay si Honorable Manuel F. Lorenzo ng RTC. Si Atty. Panganiban at Atty. Noel ang
abogado ko.
. . .
4. Na noong February 6, 1995 bago kami pumasok sa court room ay nagtanong
sa akin si Atty. Noel, ng ganito: Mr. Roldan nasaan nga pala yung resibo na ibinigay
ni Tessie sa iyo na nagbigay ka ng down payment na Ten Thousand Pesos
(P10,000.00) noong March 1, 1986. Agad akong sumagot at sinabi ko sa kaniya,
Atty. Noel lahat po ng original ay hiningi ninyo sa akin, lahat po ay binigay ko sa
inyo kasama iyong resibo ni Tessie Dalusong, na akoy magbigay ng Ten Thousand
Pesos bilang downpayment sa ipinagbili niyang bahay sa akin. Agad siyang sumagot
Wala kang ibinibigay sa akin!
5. Na kaya nga sinabi ko kay Atty. Noel na: Ibigay ninyo sa akin ang folder at
ako ang hahanap ng resibo ni Tessie Dalusong. Tumulong din si Atty. Noel, at
nakita din namin. Sinabi ni Atty. Noel Sayang hindi na natin maipasok ito, hindi na
kasi pwedeng magpasok pa ng mga ibidensya. Di ko alam kung bakit hindi niya
ipinasok noon pa man. (Ang resibo na nagpapatunay na ako ang unang nakabili ngbahay sa 1723 Pedro Gil St., Paco, Maynila).
6. Na noong nasa loob na kami ng court room ay handa na ako sa sinasabi ni
Atty. Noel no Rebuttal pero nagtaka ako kinumbinsi ako na diumano ay malinaw
na ang aking deklarasyon at malinaw ang mga ebidensya kaya hindi na raw dapat
mag rebuttal i-waive na lang daw sa Memorandum kaya nga sinabi ng Judge
na: Gumawa kayo ng Memoranda within fifteen days submitted for
decision. Noong March 8, 1995 ang memorandum ay submitted for decision;
7. Na noong Abril 7, 1995 sinabi ko kay Atty. Noel, Ba kit may ibinigay na zerox
copies ng decision si Robert Montano na aking kalaban sumagot si Atty. Noel, at
sinabi sa akin Tsekin mo sa court. Gayon nga ang aking ginawa. At bumalik ako
kay Atty. Noel, at sinabi ko: Totoo nga na may decision na. Sinabi ni Atty. Noel na:Ginapang nila yun, sapalagay mo, magkano ang inilagay nila? Sa palagay ko ay
hindi lang trenta mil (P30,000.00) pesos ang magagastos nila sa kasong ito, yun ang
isinagot ko;
8. Na iminungkahi ko kay Atty. Noel na magpayl ng mot ion for reconsideration,
sinagat ako ni Atty. Noel na: Ginapang na nila yun kaya dapat umapila na lang
tayo. Sinabi ko kay Atty. Noel na: Kung matalo pa rin ako dito, ay dalhin natin sa
Supreme Court para parehas ang laban; Na bilang bahagi nito inilakip ko dito ang
decision ng MTC; at ang apilasyon sa RTC, at ang petsa ng decision ng RTC na
tinaggap ni Atty. Noel.
9. Na noong Abril 24, 1995 umapila ako sa Court of Appeal makaraan ang ilangbuwan ay dumating sa office ni Atty. Noel at Atty. Panganiban, noong November 13,
1995 ang decision subalit tinawagan ako ng sekretarya nila Atty. Noel at Atty.
Panganiban noon lang November 24, 1995. Tinanong ko ang sekretarya ni Atty.
Panganiban kung nasaan si Atty. Noel, ang sagot ng sekretarya ay Nasa probinsiya
maraming inaasikaso doon. Agad kong sinabi: Hindi ba fifteen days lang para
maka-apila sa Supreme Court. Sumagot si Zeny at sinabi Isang buwan daw yun
para sagutin.
10. Na madalas kong tawagan si Zeny (ang sekretarya ni Atty. Panganiban) na
sinasabi kong nakahanda na ang pangbayad gawin na ninyo ang apilasyon sa
Supreme Court, itoy madalas kong sabihin sa sekretarya (si Zeny) kayat ibinigay
niya ang bagong office ni Atty. Noel sa Gedisco Centre Rm. 134, 1564 Mabini St.,
Ermita, Manila.
11. Na madalas akong magpunta sa bagong office ni Atty. Noel gaya noong Dec. 1,
1995, Dec. 4, 1995, Dec. 5, 1995, Dec. 7, 1995, Dec. 8, 1995 at noon pang huling
linggo ng November ay sisimulan ko ng sabihin sa dalawang sekretarya (si Zeny at
Marie Cris) na gawin na ang aking apilasyon sabihin kay Atty. Noel sa Supreme
Court.
12. Na noong December 12, 1995 maaga pa ay nagpunta ako sa office ni Atty.
Noel sa Gedisco 3rd
Flr. Mabini St., Ermita, Manila. Tinanong ko ang kaniyang
sekretarya kung nakausap si Atty. Noel, sinagot ako ng sekretarya at sinabing
Tinanong ko si Atty. Noel kung yari na yung apilasyong ipinagagawa ninyo (Jose
Roldan) hindi po niya ako sinasagot.
13. Na kaya agad akong magpunta sa RTC Branch 43 upang alamin angkatotohanan nabatid ko noon lang, na akoy natalo ng walang kalaban-laban, pagkat
nag-laps na o lampas na ang panahong ibinibigay ng batas para makapag-payl ng
apilasyon sa Supreme Court.
14. Na dahil dito sa mga panloloko, at pagwawalang bahala sa aking kaso ni Atty.
Noel, at Atty. Panganiban ay idinidimanda ko sila ng Damages na halagang one
hundred fifty thousand (P150,000.00) pesos at dapat silang alisan ng karapatan na
makapag-practice sa kanilang propesyon.
In his Comment dated August 8, 1996, Atty. Panganiban avers that he was
neither aware nor did he participate in the prosecution of Civil Case No. 144860-CV
M.I.T. Branch 25 Jose A. Roldan vs. Ramon Montano & Robert Montano and in the
appeal of said case to the Regional Trial Court (RTC), Branch 43; they do not have alawyer-client relationship because he is on leave in the practice of law since
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October 18, 1993 when he was designated Acting Mayor of Laurel, Batangas, and
during his incumbency as such, and up to the filing of this administrative complaint
in 1996, he is still on leave as law practitioner because he was elected Mayor of
Laurel, Batangas in the last 1995 election; probably, complainant included him as
respondent because he thought that he is practicing law and is still an associate of
Atty. Juanito P. Noel, due to the fact that on some occasions complainant might
have seen him or they might have talked casually in the law office from which he
was on leave in his practice of law because he drops there from time to time to
meet visitors from Laurel who are living and who have problems in Metro Manila;and he has not received any single centavo from the complainant.
In his Comment, dated August 29, 1996, Atty. Noel alleges: Sometime in 1994,
he agreed to represent complainant in recovering a one-half portion of the ground
floor of a house located at 1723 Pedro Gil St., Paco, Manila which complainant
bought from one Simplicia Villanueva represented by her daughter Teresita
Dalusong on November 28, 1986. A civil complaint for recovery of ownership and
possession was filed on February 8, 1994 with the RTC but upon the effectivity of
the law expanding the jurisdiction of the Metropolitan Trial Court (MTC) the case
was transferred to the MTC. From the evidence of the defendant, he honestly saw
no need to present a rebuttal evidence. The MTC rendered a decision dismissing
the case on the alleged ground that the identity of the subject matter of the action
was not clearly established. He filed an appeal in due time to the RTC of Manila
(Branch 43) and not with the Court of Appeals as stated in paragraph 9 of the
complaint. On November 13, 1995, he received a copy of the RTC decision dated
October 10, 1995, affirming the decision of the MTC. Through the telephone, he
informed the complainant about the decision of the RTC. Complainant instructed
him to prepare an appeal to the higher court which actually refers to the Court of
Appeals and not with the Supreme Court as complainant claims. He advised the
complainant that he could find no error in the said decision and a further appeal
would be frivolous and without merit and requested the complainant to come over
so that he could discuss the matter with him. Whenever the complainant went to
the law office, he failed to see him because the latter was still attending court
hearings. The complainant asked for the records of the case which was given by hissecretary. Complainant never returned the case folder to him, neither did he call up
by phone, or see him personally. He then assumed that the complainant had hired
another lawyer to handle the appeal. He was surprised when he received on July
18, 1996 a copy of the resolution of this Honorable Court dated June 19, 1996,
requiring them to file their comment on the complaint of Jose A. Roldan.
We referred the matter to the Integrated Bar of the Philippines (IBP) for
investigation. After hearing, IBP Investigating Commissioner Manuel A. Quiambao
submitted his Report and Recommendation dismissing the complaint against Atty.
Panganiban and imposing censure to Atty. Noel. In a Resolution dated February 27,
2004, the IBP adopted and approved the said Report and Recommendation.
We shall first resolve the issue of the existence or non-existence of lawyer-client relationship between Atty. Panganiban and the complainant.
From a careful reading of the records of this case, it appears that Atty.
Panganiban and Atty. Noel used to be law associates. However, Atty. Panganiban
went on leave from the practice of law since October 18, 1993 when he was
designated as acting mayor of Laurel, Batangas[2]
due to the indefinite leave of
absence filed by the mayor and by reason of his election as mayor of the said
municipality in 1995. The complainant claims that he secured the services of Atty.
Panganiban on January 6, 1994.[3]
It is thus clear that Atty. Panganiban was not an
active associate of the law firm, since at that time, he was already on leave from the
practice of law. Moreover, the complaint filed in 1996 before the RTC for Recoveryof Possession and Ownership with Damages was prepared and signed by Atty. Noel
alone and not in any representation of any law firm. In fact from the filing of the
said civil case in the RTC, it was Atty. Noel who represented the complainant. Not
once did Atty. Panganiban appear for the complainant nor did he sign any
document pertaining with the aforesaid case. Necessarily, the complaint against
Atty. Panganiban must be dismissed.
As to the complaint against Atty. Noel.
The main issues to be resolved are: (1) whether there was a deliberate
attempt to suppress evidence on the part of Atty. Noel, to the prejudice of
complainant and (2) whether it was correct for Atty. Noel to refuse to file a further
appeal of the case to the Court of Appeals by way of petition for review despite the
manifest desire of the complainant to do so.
Anent the first issue.
Complainant insists that Atty. Noels failure to present in evidence the receipt
dated March 1, 1986 was fatal to his cause. The receipt shows that complainant
made a partial payment of P10,000.00 of the P40,000.00 price of the subject
property. Complainant claims that this piece of document proves that complainant
bought the subject property ahead of the defendants who bought it only on July 30,
1986. Thus, to the mind of the complainant, the non-presentation of the subject
receipt is suppression of evidence.
Atty. Noel denied receiving the subject receipt and asserts that the same was
mere fabrication of the complainant. He insists that said receipt did not exist during
the preparation and filing of the complaint and even during the presentation ofevidence. Otherwise, he argues that such fact should have been alleged in the
complaint to show that complainant bought the subject property ahead of the
other buyer. Atty. Noel also claims that assuming that the receipt was given to him,
the same cannot be used as evidence because the receipt shows that it was signed
by one Romeo Dalusong who is not a party to the sale; neither does it appear in the
receipt that Romeo was acting in a representative capacity.
A short historical backdrop is necessary for a clearer insight of this issue.
It appears that the subject property was subjected to a double sale by the
same seller. The Deed of Sale of the complainant is dated November 28, 1986 while
that of the other buyer is dated July 30, 1986. But complainant claims that actually
the sale as to him took place on March 1, 1986 as evidenced by the subjectreceipt. Complainant however failed to take possession of the subject property as
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the same is already in the possession of the other buyer. Complainant filed an
ejectment case[4]
against the tenant of the other buyer but the same was dismissed
for the reason that complainant failed to show that he had proprietary right over
the property in question. Unable to take possession of the subject property,
complainant filed a case against the seller for the annulment of the contract of sale,
the Deed of Sale dated November 28, 1986. Complainant won and the court
awarded him damages of P80,000.00.
Subsequently, the seller and the complainant entered into a Compromise
Agreement.[5]
The seller, agreed to sell one-half of her duplex house which is thesame property that was previously sold to complainant on November 28, 1986,
including all her proprietary rights over the land, in the amount
of P80,000.00. Since the Court awarded damages to the complainant in the same
amount, this was set-off against the price of the property. Pursuant to the said
compromise agreement, a Deed of Absolute Sale and Transfer of Right[6]
in favor of
the complainant was executed on December 22, 1990 by the seller over the said
property.
Even with the sale on December 22, 1990 over the subject property as a result
of the compromise agreement, complainant still failed to take possession of the
subject property, hence he filed a complaint for Recovery of Possession and
Ownership with Damages against the other buyer. It is in this case that complainant
claims that Atty. Noel failed to present the subject receipt. The MTC dismissed the
complaint and the RTC on appeal, dismissed it again. Upon failure of Atty. Noel to
file a petition for review with the Court of Appeals, complainant filed the present
administrative complaint against him.
We find credence to the allegation of Atty. Noel that the subject receipt was
not in existence at the time he prepared the complaint or even at the time of
presentation of evidence. The complaint was verified by the complainant stating
the fact that he caused its preparation, that he read the same and attested that the
contents thereof are true and correct. If complainants allegation that he gave the
receipt to Atty. Noel at that time, and considering the importance of the subject
receipt to his case, he should have called the attention of Atty. Noel that there was
no allegation of the existence of the subject receipt.We thus hold that Atty. Noel is not guilty of suppressing evidence.
As to the second issue, that is, the issue of propriety of Atty. Noels refusal or
failure to file a petition for review before the Court of Appeals.
It is the contention of the complainant that he lost the right to file a further
appeal because he was not informed immediately of the result of the appeal to the
RTC. Complainant insists that Atty. Noel, through his secretary, called the
complainant only on November 24, 1995 or 11 days after the receipt of the adverse
RTC decision and was given the impression that he has still one month within which
to file an appeal. The complainant also said that he paid the respondents visits on
December 1, 4, 5, 7 and 8, 1995, to follow up the filing of the appeal to the higher
court but that he was not able to talk to Atty. Noel; that it was only when he went
to the RTC that he learned that he lost the case because the period of the appeal
has lapsed.
Atty. Noel contends that he received the RTC decision on November 13, 1995
and on the following day, he instructed his secretary to contact the complainant to
inform him of the adverse RTC decision with the directive for the complainant to
call up Atty. Noel; that when complainant called, he was instructed by the
complainant to prepare an appeal to the higher court; that he told the complainant
that there is no need to appeal the case because, first, the decision of the court is
correct, and second, he is obligated by the code of professional responsibilities torefrain from filing a frivolous and unmeritorious appeal; that thereafter,
complainant went to his office twice, the last of this instance was when
complainant took all the records of the case and never came back which led him to
believe that complainant will not appeal the adverse RTC decision. Atty. Noel
further states that, in any event, his relationship with the complainant ended upon
the issuance of the decision and that the complainant should not expect that he
would still appeal the case.
We find for the complainant.
It is noted that the complainant has been very diligent in fo
Recommended