Professional Documents
Culture Documents
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rule yet she failed to invoke it at the earliest opportunity. Instead she opted to insist on her innocence. On the other ground raised by respondent, we have sufficiently discussed the implications of her loan agreement with complainant in relation to Rule 16.04 of the Code of Professional Responsibility in our December 13, 2005 resolution. Considering the fiduciary character of respondents relationship with complainant, the nature of their agreement and complainants lack of independent advice when she entered into it, there is neither sufficient ground nor compelling reason to reconsider our earlier resolution. WHEREFORE, respondents motion hereby DENIED WITH FINALITY. for reconsideration is
IMPRESCRIPTIBILITY PROCEEDINGS
EN BANC A.C. No. 6656 [Formerly CBD-98-591]
OF
DISBARMENT
May
4,
2006
BOBIE ROSE V. FRIAS, Complainant, vs. ATTY. CARMELITA S. BAUTISTA-LOZADA,* Respondent. RESOLUTION CORONA, J.: Respondent Atty. Carmelita Bautista-Lozada seeks reconsideration of our December 13, 2005 resolution finding her guilty of violating Rules 15.03 and 16.04 of the Code of Professional Responsibility and of willfully disobeying a final and executory decision of the Court of Appeals and suspending her from the practice of law for two years. Respondent contends that, pursuant to Rule VIII of the Rules of Procedure of the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP), the complaint against her was already barred by prescription. She also asserts that her December 7, 1990 loan agreement with complainant complied with Rule 16.04 because the interest of complainant was fully protected. Respondents contentions have no merit. Respondent anchors her defense of prescription on Rule VIII, Section 1 of the Rules of Procedure of the CBD-IBP which provides: SECTION 1. Prescription. A complaint for disbarment, suspension or discipline of attorneys prescribes in two (2) years from the date of the professional misconduct. However, as early as 1967, we have held that the defense of prescription does not lie in administrative proceedings against lawyers.1 And in the 2004 case of Heck v. Santos,2 we declared that an administrative complaint against a member of the bar does not prescribe. If the rule were otherwise, members of the bar would be emboldened to disregard the very oath they took as lawyers, prescinding from the fact that as long as no private complainant would immediately come forward, they stand a chance of being completely exonerated from whatever administrative liability they ought to answer for. It is the duty of this Court to protect the integrity of the practice of law as well as the administration of justice. No matter how much time has elapsed from the time of the commission of the act complained of and the time of the institution of the complaint, erring members of the bench and bar cannot escape the disciplining arm of the Court. This categorical pronouncement is aimed at unscrupulous members of the bench and bar, to deter them from committing acts which violate the Code of Professional Responsibility, the Code of Judicial Conduct, or the Lawyers Oath. x x x Thus, even the lapse of considerable time from the commission of the offending act to the institution of the administrative complaint will not erase the administrative culpability of a lawyer.3 (emphasis supplied) The CBD-IBP derives its authority to take cognizance of administrative complaints against lawyers from this Court which has the inherent power to regulate, supervise and control the practice of law in the Philippines. Hence, in the exercise of its delegated power to entertain administrative complaints against lawyers, the CBD-IBP should be guided by the doctrines and principles laid down by this Court. Regrettably, Rule VIII, Section 1 of the Rules of Procedure of the CBD-IBP which provides for a prescriptive period for the filing of administrative complaints against lawyers runs afoul of the settled ruling of this Court. It should therefore be struck down as void and of no legal effect for being ultra vires. Moreover, assuming that prescription is a valid defense, respondent raised it only at this late stage. We presume she was familiar with that
Rule VIII, Section 1 of the Rules of Procedure of the Commission on Bar Discipline of the Integrated Bar of the Philippines is hereby declared null and void. Let copies of this resolution be furnished the Integrated Bar of the Philippines and the Office of the Bar Confidant for their information and guidance. SO ORDERED.
CONFLICT OF INTEREST
EN BANC
G.R. No. 105938 September 20, 1996 TEODORO R. REGALA, EDGARDO J. ANGARA, AVELINO V. CRUZ, JOSE C. CONCEPCION, ROGELIO A. VINLUAN, VICTOR P. LAZATIN and EDUARDO U. ESCUETA, petitioners, vs. THE HONORABLE SANDIGANBAYAN, First Division, REPUBLIC OF THE PHILIPPINES, ACTING THROUGH THE PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, and RAUL S. ROCO, respondents. G.R. No. 108113 September 20, 1996 PARAJA G. vs. THE SANDIGANBAYAN and PHILIPPINES, respondents. HAYUDINI, petitioner, THE REPUBLIC OF THE
KAPUNAN, J.: These case touch the very cornerstone of every State's judicial system, upon which the workings of the contentious and adversarial system in the Philippine legal process are based the sanctity of fiduciary duty in the client-lawyer relationship. The fiduciary duty of a counsel and advocate is also what makes the law profession a unique position of trust and confidence, which distinguishes it from any other calling. In this instance, we have no recourse but to uphold and strengthen the mantle of protection accorded to the confidentiality that proceeds from the performance of the lawyer's duty to his client. The facts of the case are undisputed. The matters raised herein are an offshoot of the institution of the Complaint on July 31, 1987 before the Sandiganbayan by the Republic of the Philippines, through the Presidential Commission on Good Government against Eduardo M. Cojuangco, Jr., as one of the principal defendants, for the recovery of alleged ill-gotten wealth, which includes shares of stocks in the named corporations in PCGG Case No. 33 (Civil Case No. 0033), entitled "Republic of the Philippines versus Eduardo Cojuangco, et al." 1 Among the dependants named in the case are herein petitioners Teodoro Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U. Escueta and Paraja G. Hayudini, and herein private respondent Raul S. Roco, who all were then partners of the law firm Angara, Abello, Concepcion, Regala and Cruz Law Offices (hereinafter referred to as
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any proprietary interest in the said shares of stock. 4.5 Defendant ACCRA-lawyer Avelino V. Cruz was one of the incorporators in 1976 of Mermaid Marketing Corporation, which was organized for legitimate business purposes not related to the allegations of the expanded Amended Complaint. However, he has long ago transferred any material interest therein and therefore denies that the "shares" appearing in his name in Annex "A" of the expanded Amended Complaint are his assets. 6 Petitioner Paraja Hayudini, who had separated from ACCRA law firm, filed a separate answer denying the allegations in the complaint implicating him in the alleged ill-gotten wealth. 7 Petitioners ACCRA lawyers subsequently filed their "COMMENT AND/OR OPPOSITION" dated October 8, 1991 with Counter-Motion that respondent PCGG similarly grant the same treatment to them (exclusion as parties-defendants) as accorded private respondent Roco. 8 The Counter-Motion for dropping petitioners from the complaint was duly set for hearing on October 18, 1991 in accordance with the requirements of Rule 15 of the Rules of Court. In its "Comment," respondent PCGG set the following conditions precedent for the exclusion of petitioners, namely: (a) the disclosure of the identity of its clients; (b) submission of documents substantiating the lawyer-client relationship; and (c) the submission of the deeds of assignments petitioners executed in favor of its client covering their respective shareholdings. 9 Consequently, respondent PCGG presented supposed proof to substantiate compliance by private respondent Roco of the conditions precedent to warrant the latter's exclusion as party-defendant in PCGG Case No. 33, to wit: (a) Letter to respondent PCGG of the counsel of respondent Roco dated May 24, 1989 reiterating a previous request for reinvestigation by the PCGG in PCGG Case No. 33; (b) Affidavit dated March 8, 1989 executed by private respondent Roco as Attachment to the letter aforestated in (a); and (c) Letter of the Roco, Bunag, and Kapunan Law Offices dated September 21, 1988 to the respondent PCGG in behalf of private respondent Roco originally requesting the reinvestigation and/or re-examination of the evidence of the PCGG against Roco in its Complaint in PCGG Case No. 33. 10 It is noteworthy that during said proceedings, private respondent Roco did not refute petitioners' contention that he did actually not reveal the identity of the client involved in PCGG Case No. 33, nor had he undertaken to reveal the identity of the client for whom he acted as nominee-stockholder. 11 On March 18, 1992, respondent Sandiganbayan promulgated the Resolution, herein questioned, denying the exclusion of petitioners in PCGG Case No. 33, for their refusal to comply with the conditions required by respondent PCGG. It held: xxx xxx xxx ACCRA lawyers may take the heroic stance of not revealing the identity of the client for whom they have acted, i.e. their principal, and that will be their choice. But until they do identify their clients, considerations of whether or not the privilege claimed by the ACCRA lawyers exists cannot even begin to be debated. The ACCRA lawyers cannot excuse themselves from the consequences of their acts until they have begun to establish the basis for recognizing the privilege; the existence andidentity of the client. This is what appears to be the cause for which they have been impleaded by the PCGG as defendants herein. 5. The PCGG is satisfied that defendant Roco has demonstrated his agency and that Roco has apparently identified his principal, which revelation could show the lack of cause against him. This in turn has allowed the PCGG to exercise its power both under the rules of Agency and under Section
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privilege includes the identity of the client(s). 2. The factual disclosures required by the PCGG are not limited to the identity of petitioners ACCRA lawyers' alleged client(s) but extend to other privileged matters. IV The Honorable Sandiganbayan committed grave abuse of discretion in not requiring that the dropping of party-defendants by the PCGG must be based on reasonable and just grounds and with due consideration to the constitutional right of petitioners ACCRA lawyers to the equal protection of the law. Petitioner Paraja G. Hayudini, likewise, filed his own motion for reconsideration of the March 18, 1991 resolution which was denied by respondent Sandiganbayan. Thus, he filed a separate petition for certiorari, docketed as G.R. No. 108113, assailing respondent Sandiganbayan's resolution on essentially the same grounds averred by petitioners in G.R. No. 105938. Petitioners contend that the exclusion of respondent Roco as partydefendant in PCGG Case No. 33 grants him a favorable treatment, on the pretext of his alleged undertaking to divulge the identity of his client, giving him an advantage over them who are in the same footing as partners in the ACCRA law firm. Petitioners further argue that even granting that such an undertaking has been assumed by private respondent Roco, they are prohibited from revealing the identity of their principal under their sworn mandate and fiduciary duty as lawyers to uphold at all times the confidentiality of information obtained during such lawyer-client relationship. Respondent PCGG, through its counsel, refutes petitioners' contention, alleging that the revelation of the identity of the client is not within the ambit of the lawyer-client confidentiality privilege, nor are the documents it required (deeds of assignment) protected, because they are evidence of nominee status. 13 In his comment, respondent Roco asseverates that respondent PCGG acted correctly in excluding him as party-defendant because he "(Roco) has not filed an Answer. PCGG had therefore the right to dismiss Civil Case No.0033 as to Roco 'without an order of court by filing a notice of dismissal'," 14 and he has undertaken to identify his principal. 15 Petitioners' contentions are impressed with merit. I It is quite apparent that petitioners were impleaded by the PCGG as co-defendants to force them to disclose the identity of their clients. Clearly, respondent PCGG is not after petitioners but the "bigger fish" as they say in street parlance. This ploy is quite clear from the PCGG's willingness to cut a deal with petitioners the names of their clients in exchange for exclusion from the complaint. The statement of the Sandiganbayan in its questioned resolution dated March 18, 1992 is explicit: ACCRA lawyers may take the heroic stance of not revealing the identity of the client for whom they have acted, i.e, their principal, and that will be their choice. But until they do identify their clients, considerations of whether or not the privilege claimed by the ACCRA lawyers exists cannot even begin to be debated. The ACCRA lawyers cannot excuse themselves from the consequences of their acts until they have begun to establish the basis for recognizing the privilege; the existence and identity of the client. This is what appears to be the cause for which they have been impleaded by the PCGG as defendants herein. (Emphasis ours) In a closely related case, Civil Case No. 0110 of the Sandiganbayan, Third Division, entitled "Primavera Farms, Inc., et al. vs. Presidential
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advice in a good cause is an evil which is fatal to the administration of justice. 24 It is also the strict sense of fidelity of a lawyer to his client that distinguishes him from any other professional in society. This conception is entrenched and embodies centuries of established and stable tradition. 25 InStockton v. Ford, 26 the U. S. Supreme Court held: There are few of the business relations of life involving a higher trust and confidence than that of attorney and client, or generally speaking, one more honorably and faithfully discharged; few more anxiously guarded by the law, or governed by the sterner principles of morality and justice; and it is the duty of the court to administer them in a corresponding spirit, and to be watchful and industrious, to see that confidence thus reposed shall not be used to the detriment or prejudice of the rights of the party bestowing it. 27 In our jurisdiction, this privilege takes off from the old Code of Civil Procedure enacted by the Philippine Commission on August 7, 1901. Section 383 of the Code specifically "forbids counsel, without authority of his client to reveal any communication made by the client to him or his advice given thereon in the course of professional employment." 28 Passed on into various provisions of the Rules of Court, the attorney-client privilege, as currently worded provides: Sec. 24. Disqualification by reason of privileged communication. The following persons cannot testify as to matters learned in confidence in the following cases: xxx xxx xxx An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity. 29 Further, Rule 138 of the Rules of Court states: Sec. 20. It is the duty of an attorney: (e) to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client's business except from him or with his knowledge and approval. This duty is explicitly mandated in Canon 17 of the Code of Professional Responsibility which provides that: Canon 17. A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him. Canon 15 of the Canons of Professional Ethics also demands a lawyer's fidelity to client: The lawyers owes "entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability," to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public popularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or
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implicate the client in the very criminal activity for which the lawyer's legal advice was obtained. The Hodge case involved federal grand jury proceedings inquiring into the activities of the "Sandino Gang," a gang involved in the illegal importation of drugs in the United States. The respondents, law partners, represented key witnesses and suspects including the leader of the gang, Joe Sandino. In connection with a tax investigation in November of 1973, the IRS issued summons to Hodge and Zweig, requiring them to produce documents and information regarding payment received by Sandino on behalf of any other person, and vice versa. The lawyers refused to divulge the names. The Ninth Circuit of the United States Court of Appeals, upholding non-disclosure under the facts and circumstances of the case, held: A client's identity and the nature of that client's fee arrangements may be privileged where the person invoking the privilege can show that a strong probability exists that disclosure of such information would implicate that client in the very criminal activity for which legal advice was sought Baird v.Koerner, 279 F. 2d at 680. While in Baird Owe enunciated this rule as a matter of California law, the rule also reflects federal law. Appellants contend that the Baird exception applies to this case. The Baird exception is entirely consonant with the principal policy behind the attorney-client privilege. "In order to promote freedom of consultation of legal advisors by clients, the apprehension of compelled disclosure from the legal advisors must be removed; hence, the law must prohibit such disclosure except on the client's consent." 8 J. Wigmore, supra sec. 2291, at 545. In furtherance of this policy, the client's identity and the nature of his fee arrangements are, in exceptional cases, protected as confidential communications. 36 2) Where disclosure would open the client to civil liability; his identity is privileged. For instance, the peculiar facts and circumstances of Neugass v. Terminal Cab Corporation, 37 prompted the New York Supreme Court to allow a lawyer's claim to the effect that he could not reveal the name of his client because this would expose the latter to civil litigation. In the said case, Neugass, the plaintiff, suffered injury when the taxicab she was riding, owned by respondent corporation, collided with a second taxicab, whose owner was unknown. Plaintiff brought action both against defendant corporation and the owner of the second cab, identified in the information only as John Doe. It turned out that when the attorney of defendant corporation appeared on preliminary examination, the fact was somehow revealed that the lawyer came to know the name of the owner of the second cab when a man, a client of the insurance company, prior to the institution of legal action, came to him and reported that he was involved in a car accident. It was apparent under the circumstances that the man was the owner of the second cab. The state supreme court held that the reports were clearly made to the lawyer in his professional capacity. The court said: That his employment came about through the fact that the insurance company had hired him to defend its policyholders seems immaterial. The attorney is such cases is clearly the attorney for the policyholder when the policyholder goes to him to report an occurrence contemplating that it would be used in an action or claim against him. 38 xxx xxx xxx All communications made by a client to his counsel, for the purpose of professional advice or assistance, are privileged, whether they relate to a suit pending or contemplated, or to any other matter proper for such advice or aid; . . . And whenever the communication made, relates to a matter so connected with the employment as attorney or counsel as to afford presumption that it was the ground of the address by the client, then it is privileged from disclosure. . .
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that one year or several years. The voluntary nature of the payment indicates a belief by the taxpayers that more taxes or interest or penalties are due than the sum previously paid, if any. It indicates a feeling of guilt for nonpayment of taxes, though whether it is criminal guilt is undisclosed. But it may well be the link that could form the chain of testimony necessary to convict an individual of a federal crime. Certainly the payment and the feeling of guilt are the reasons the attorney here involved was employed to advise his clients what, under the circumstances, should be done. 43 Apart from these principal exceptions, there exist other situations which could qualify as exceptions to the general rule. For example, the content of any client communication to a lawyer lies within the privilege if it is relevant to the subject matter of the legal problem on which the client seeks legal assistance. 44 Moreover, where the nature of the attorney-client relationship has been previously disclosed and it is the identity which is intended to be confidential, the identity of the client has been held to be privileged, since such revelation would otherwise result in disclosure of the entire transaction. 45 Summarizing these exceptions, information relating to the identity of a client may fall within the ambit of the privilege when the client's name itself has an independent significance, such that disclosure would then reveal client confidences. 46 The circumstances involving the engagement of lawyers in the case at bench, therefore, clearly reveal that the instant case falls under at least two exceptions to the general rule. First, disclosure of the alleged client's name would lead to establish said client's connection with the very fact in issue of the case, which is privileged information, because the privilege, as stated earlier, protects the subject matter or the substance (without which there would be not attorney-client relationship). The link between the alleged criminal offense and the legal advice or legal service sought was duly establishes in the case at bar, by no less than the PCGG itself. The key lies in the three specific conditions laid down by the PCGG which constitutes petitioners' ticket to nonprosecution should they accede thereto: (a) the disclosure of the identity of its clients; (b) submission of documents substantiating the lawyer-client relationship; and (c) the submission of the deeds of assignment petitioners executed in favor of their clients covering their respective shareholdings. From these conditions, particularly the third, we can readily deduce that the clients indeed consulted the petitioners, in their capacity as lawyers, regarding the financial and corporate structure, framework and set-up of the corporations in question. In turn, petitioners gave their professional advice in the form of, among others, the aforementioned deeds of assignment covering their client's shareholdings. There is no question that the preparation of the aforestated documents was part and parcel of petitioners' legal service to their clients. More important, it constituted an integral part of their duties as lawyers. Petitioners, therefore, have a legitimate fear that identifying their clients would implicate them in the very activity for which legal advice had been sought, i.e., the alleged accumulation of ill-gotten wealth in the aforementioned corporations. Furthermore, under the third main exception, revelation of the client's name would obviously provide the necessary link for the prosecution to build its case, where none otherwise exists. It is the link, in the words of Baird, "that would inevitably form the chain of testimony necessary to convict the (client) of a . . . crime." 47 An important distinction must be made between a case where a client takes on the services of an attorney for illicit purposes, seeking advice about how to go around the law for the purpose of committing illegal activities and a case where a client thinks he might have previously committed something illegal and consults his attorney about it. The first case clearly does not fall within the privilege
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requirements of causation and damages, and found in favor of the client. To the same effect is the ruling in Searcy, Denney, Scarola, Barnhart, and Shipley P.A. v. Scheller 55 requiring strict obligation of lawyers vis-a-vis clients. In this case, a contingent fee lawyer was fired shortly before the end of completion of his work, and sought payment quantum meruit of work done. The court, however, found that the lawyer was fired for cause after he sought to pressure his client into signing a new fee agreement while settlement negotiations were at a critical stage. While the client found a new lawyer during the interregnum, events forced the client to settle for less than what was originally offered. Reiterating the principle of fiduciary duty of lawyers to clients in Meinhard v. Salmon 56 famously attributed to Justice Benjamin Cardozo that "Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior," the US Court found that the lawyer involved was fired for cause, thus deserved no attorney's fees at all. The utmost zeal given by Courts to the protection of the lawyer-client confidentiality privilege and lawyer's loyalty to his client is evident in the duration of the protection, which exists not only during the relationship, but extends even after the termination of the relationship. 57 Such are the unrelenting duties required by lawyers vis-a-vis their clients because the law, which the lawyers are sworn to uphold, in the words of Oliver Wendell Holmes, 58 ". . . is an exacting goddess, demanding of her votaries in intellectual and moral discipline." The Court, no less, is not prepared to accept respondents' position without denigrating the noble profession that is lawyering, so extolled by Justice Holmes in this wise: Every calling is great when greatly pursued. But what other gives such scope to realize the spontaneous energy of one's soul? In what other does one plunge so deep in the stream of life so share its passions its battles, its despair, its triumphs, both as witness and actor? . . . But that is not all. What a subject is this in which we are united this abstraction called the Law, wherein as in a magic mirror, we see reflected, not only in our lives, but the lives of all men that have been. When I think on this majestic theme my eyes dazzle. If we are to speak of the law as our mistress, we who are here know that she is a mistress only to be won with sustained and lonely passion only to be won by straining all the faculties by which man is likened to God. We have no choice but to uphold petitioners' right not to reveal the identity of their clients under pain of the breach of fiduciary duty owing to their clients, because the facts of the instant case clearly fall within recognized exceptions to the rule that the client's name is not privileged information. If we were to sustain respondent PCGG that the lawyer-client confidential privilege under the circumstances obtaining here does not cover the identity of the client, then it would expose the lawyers themselves to possible litigation by their clients in view of the strict fiduciary responsibility imposed on them in the exercise of their duties. The complaint in Civil Case No. 0033 alleged that the defendants therein, including herein petitioners and Eduardo Cojuangco, Jr. conspired with each other in setting up through the use of coconut levy funds the financial and corporate framework and structures that led to the establishment of UCPB, UNICOM and others and that through insidious means and machinations, ACCRA, using its wholly-owned investment arm, ACCRA Investment Corporation, became the holder of approximately fifteen million shares representing roughly 3.3% of the total capital stock of UCPB as of 31 March 1987. The PCGG wanted to establish through the ACCRA lawyers that Mr. Cojuangco is their client and it was Cojuangco who furnished all the monies to the subscription payment; hence, petitioners acted as dummies, nominees and/or agents by allowing themselves, among others, to be used as instrument in accumulating ill-gotten wealth through government concessions, etc., which acts constitute gross abuse of official position and authority, flagrant breach of public trust, unjust enrichment, violation of the Constitution and laws of the Republic of the Philippines.
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which if not identical are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding the rest. 63 We find that the condition precedent required by the respondent PCGG of the petitioners for their exclusion as parties-defendants in PCGG Case No. 33 violates the lawyer-client confidentiality privilege. The condition also constitutes a transgression by respondents Sandiganbayan and PCGG of the equal protection clause of the Constitution. 64 It is grossly unfair to exempt one similarly situated litigant from prosecution without allowing the same exemption to the others. Moreover, the PCGG's demand not only touches upon the question of the identity of their clients but also on documents related to the suspected transactions, not only in violation of the attorney-client privilege but also of the constitutional right against selfincrimination. Whichever way one looks at it, this is a fishing expedition, a free ride at the expense of such rights. An argument is advanced that the invocation by petitioners of the privilege of attorney-client confidentiality at this stage of the proceedings is premature and that they should wait until they are called to testify and examine as witnesses as to matters learned in confidence before they can raise their objections. But petitioners are not mere witnesses. They are co-principals in the case for recovery of alleged ill-gotten wealth. They have made their position clear from the very beginning that they are not willing to testify and they cannot be compelled to testify in view of their constitutional right against self-incrimination and of their fundamental legal right to maintain inviolate the privilege of attorney-client confidentiality. It is clear then that the case against petitioners should never be allowed to take its full course in the Sandiganbayan. Petitioners should not be made to suffer the effects of further litigation when it is obvious that their inclusion in the complaint arose from a privileged attorney-client relationship and as a means of coercing them to disclose the identities of their clients. To allow the case to continue with respect to them when this Court could nip the problem in the bud at this early opportunity would be to sanction an unjust situation which we should not here countenance. The case hangs as a real and palpable threat, a proverbial Sword of Damocles over petitioners' heads. It should not be allowed to continue a day longer. While we are aware of respondent PCGG's legal mandate to recover ill-gotten wealth, we will not sanction acts which violate the equal protection guarantee and the right against self-incrimination and subvert the lawyer-client confidentiality privilege. WHEREFORE, IN VIEW OF THE FOREGOING, the Resolutions of respondent Sandiganbayan (First Division) promulgated on March 18, 1992 and May 21, 1992 are hereby ANNULLED and SET ASIDE. Respondent Sandiganbayan is further ordered to exclude petitioners Teodoro D. Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, Victor P. Lazatin, Eduardo U. Escueta and Paraja G. Hayuduni as parties-defendants in SB Civil Case No. 0033 entitled "Republic of the Philippines v. Eduardo Cojuangco, Jr., et al." SO ORDERED. EN BANC A.C. No. 6632. August 2, 2005 NORTHWESTERN UNIVERSITY, INC., NICOLAS, Complainant, vs. Atty. MACARIO D. ARQUILLO, Respondent. DECISION PANGANIBAN, J.: and BEN A.
The Code of Professional Responsibility requires lawyers to observe candor, fairness and loyalty in all their dealings and transactions with their clients.7 Corollary to this duty, lawyers shall not represent conflicting interests, except with all the concerned clients written consent, given after a full disclosure of the facts.8 When a lawyer represents two or more opposing parties, there is a conflict of interests, the existence of which is determined by three separate tests: (1) when, in representation of one client, a lawyer is required to fight for an issue or claim, but is also duty-bound to oppose it for another client; (2) when the acceptance of the new retainer will require an attorney to perform an act that may injuriously affect the first client or, when called upon in a new relation, to use against the first one any knowledge acquired through their professional connection; or (3) when the acceptance of a new relation would prevent the full discharge of an attorneys duty to give undivided fidelity and loyalty to the client or would invite suspicion of unfaithfulness or double dealing in the performance of that duty. 9 In the present case, Atty. Macario D. Arquillo, as counsel for Respondent Jose C. Castro in NLRC Case Nos. I-05-1083-97 to I-051109-97, filed a Motion to Dismiss those cases. Shortly thereafter, a position paper was filed by Atty. Arquillo as counsel for several complainants in consolidated NLRC Case Nos. I-05-1087-97, I-051088-97, I-05-1091-97, I-05-1092-97, I-05-1096-97, I-05-1097-97, and I-05-1109-97. All the cases in the second set were included in the first one, for which he had filed the subject Motion to Dismiss. Furthermore, in his position paper for the complainants, Atty. Arquillo protected his other client, Respondent Jose C. Castro, in these words: "3. More than lack of valid cause for the dismissal of complainants, respondents, except Atty. Jose C. Castroand Atty. Ernesto B. Asuncion, should be made accountable for not according complainants their right to due process."10 In his two-page Motion for Reconsideration, Atty. Arquillo claims that there was no conflict of interest in his representation of both the respondent and the complainants in the same consolidated cases, because all of them were allegedly on the same side. Attaching to the Motion the Decision of Labor Arbiter Norma C. Olegario on the consolidated NLRC cases, Atty. Arquillo theorizes that her judgment absolved Castro of personal liability for the illegal dismissal of the complainants; this fact allegedly showed that there was no conflict in the interests of all the parties concerned. This Court does not agree. Atty. Arquillos acts cannot be justified by the fact that, in the end, Castro was proven to be not personally liable for the claims of the dismissed employees. Having agreed to represent one of the opposing parties first, the lawyer should have known that there was an obvious conflict of interests, regardless of his alleged belief that they were all on the same side. It cannot be denied that the dismissed employees were the complainants in the same cases in which Castro was one of the respondents. Indeed, Commissioner Funa correctly enounced: "As counsel for complainants, [r]espondent had the duty to oppose the Motion to Dismiss filed by Jose G. Castro. But under the circumstance, it would be impossible since [r]espondent is also the counsel of Jose G. Castro. And it appears that it was [r]espondent who prepared the Motion to Dismiss, which he should be opposing [a]s counsel of Jose G. Castro, Respondent had the duty to prove the Complaint wrong. But Respondent cannot do this because he is the counsel for the complainants. Here lies the inconsistency. The inconsistency of interests is very clear. "Thus it has been noted The attorney in that situation will not be able to pursue, with vigor and zeal, the clients claim against the other and to properly represent the latter in the unrelated action, or, if he can do so, he cannot avoid being suspected by the defeated client of disloyalty or partiality in favor of the successful client. The foregoing considerations will strongly tend to deprive the relation of attorney and client of those special elements which make it one of trust and confidence[.] (Legal Ethics, Agpalo, p. 230, 4th ed.; In re De la Rosa, 21 Phil. 258) "11 An attorney cannot represent adverse interests. It is a hornbook doctrine grounded on public policy that a lawyers representation of both sides of an issue is highly improper. The proscription applies when the conflicting interests arise with respect to the same general
10
entitled: "Makadaya L. Sadik and Linang Minalang, plaintiffs versus Great Pacific Life Assurance Corporation, defendant" for Specific Performance. 5. On November 17, 1989, the Regional Trial Court rendered a decision in favor of plaintiffs and against the defendant ordering the latter to pay to the former the sum of P30,000.00 as "benefit due them under Insurance Policy No. 503033." The court denied plaintiffs" claim for double indemnity of P60,000.00 under the accidental death rider. At this time, respondent was already the presiding Judge of the 5th Municipal Circuit Trial Court of Kolambugan-Maigo (now, MCTC of KolambuganTangcal), having assumed such office on September 1, 1989, EXh.7. 6. Upon receipt of the decision, respondent as counsel for plaintiffs filed a notice of appeal to the Court of Appeals even as defendant likewise filed an appeal. Respondent represented the plaintiffs in the appeal. On September 22, 1992, the Court of Appeals affirmed in toto the decision of the lower court. Defendant elevated the case on petition for review to the Supreme Court which dismissed the petition. 7. After the dismissal of its petition by the Supreme Court, Grepalife filed a Manifestation dated 6 July 1993 with the Regional Trial Court, Br. 13, Cotabato City declaring its willingness to pay the judgment award and depositing with said court RCBC check No. 62837 in the amount of P30,000.00 payable to the plaintiffs. Copy of the manifestation was furnished to "Atty. Abdallah M. Casar, Counsel for the Plaintiffs, Kolambugan, Lanao del Norte" (pp. 44 & 55, Records). 8. On October 1, 1992, respondent collected the check from the Clerk of Court of the Regional Trial Court, Br, 13, Cotabato City and thereafter cashed it. 9. Respondent did not deliver the said money judgment to the plaintiffs. 10. On January 26, 1995, complainants filed their administrative complaint. Respondent admitted that he retained the sum of P30,000.00 representing the judgment award in civil Case No. 2747 and that he did not deliver it to the plaintiffs. He interposes the following defenses: 1. He is not guilty of any misconduct because he accepted the case long before he became a judge; 2. He did not misappropriate the money he collected from the court. It is intact but he has the right to retain the amount of P30,000.00 until he is paid his expenses pursuant to Section 137, Rule 138 on attorney's lien; 3. The complainant, Makadaya Sadik is not the real Makadaya Sadik, plaintiff in Civil Case No. 2747 and being an impostor she is not entitled to the money. There is no dispute that when respondent agreed to file the complaint in behalf of Makadaya Sadik and Linang Minalang, he was not yet a member of the judiciary. He was a trial attorney of the Bureau of Forest Development. He claimed that he was authorized to engage in practice in behalf of relatives but presented no documentary authority. He continued to represent the plaintiffs in Civil Case No. 2747 when he joined the Citizens Legal Assistance Office in a private capacity. In fact he took pains to emphasize that he handled the case not as a CLAO lawyer (tsn, p. 39; 11-13-95)
G.R. No. MTJ-95-1053 January 2, 1997 SPOUSES MAKADAYA SADIK SADIK, complainants, vs. JUDGE ABDALLAH CASAR, respondent. and USODAN
PER CURIAM: The case before us stemmed from a verified complaint filed by Spouses Makadaya and Usodan Sadik charging Judge Abdallah Casar, Municipal Circuit Trial Court of Kolambugan-Tangcal, Lanao del Norte with misconduct and misappropriation. Judge Casar filed his answer dated February 28, 1995 averring that the complaint is merely for harassment and intended to ruin his reputation. In the resolution of August 14, 1995, this Court referred this case to Executive Judge Valerio M. Salazar of the Regional Trial Court of Iligan City and Lanao del Norte, Branch 6 for investigation, report and recommendation. In his Report and Recommendation dated November 25, 1995, the Investigating Judge made the following findings: The basic facts are not in dispute are not in dispute, to wit: 1. On February 14, 1985, one Lekiya Paito filed an application for life insurance with the Great Pacific Life Assurance Corporation (Grepalife) in Cotabato City, Exh. 5. The application was approved and Policy No. 0503033 was issued in her name for the amount of P30,000.00 with an accidental death benefit rider. Named as beneficiaries were her daughters, Linang Minalang and Makadaya Sadik. She paid the initial premium of P410.00. 2. On October 12, 1985, Lekiya Paito died in Pagayawan, Tampara, Lanao del Sur. 3. The beneficiaries and/or through their representatives sought for and obtained the assistance of respondent, who was then a trial attorney of the Bureau of Forest Development, Cotabato City, to pursue the approval of their claim for payment of the insurance benefits with Grepalife. Respondent made the necessary follow-ups but in due course Grepalife denied the claim on the grounds of misrepresentation and concealment. 4. On October 10, 1986, respondent, as counsel for the beneficiaries, filed a complaint in the Regional Trial Court, Br. 13, Cotabato City which was docketed therein as Civil Case No. 2747
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I estimated my expenses to be more than Thirty Thousand (P30,000.00 ) Pesos. Q. What is your right in getting the amount of P30,000.00 ? A. Well, pursuant to Rule 138, Section 37 of the Rules of Court known as attorney's liens by virtue of that I have the right to retain the amount until payment of my expenses was paid . . ." (sic) (tsn, pp. 38-39; 11/13/95). This is ridiculous. The judgment award is only P30,000.00 but he spent more than P30,000.00 to recover it. Thus despite winning the case, the client could not collect a single cent and will still have to pay his lawyer. This may be one reason why the ordinary layman holds an unflattering perception of lawyers. His evidence fails to prove the amount of expenses claimed by him. He said that to followup the claim, he went to Manila six times spending for fare alone P3000.00 for each trip. When the case was on appeal to the Supreme Court, he went to Manila to follow-up thrice (tsn, p. 38; 11/13/95). Except for his uncorroborated testimony, there are only two documents showing he was indeed in Manila. Those are Exhs. 26 and 32 indicating that he personally served those letters to Grepalife in Manila. But there is no evidence that he went there for this purpose alone. It is highly probable that the visit to Grepalife was merely one of his purposes in going to Manila. On the other hand, his claim that he went to Manila three times to follow-up the case while it was pending with the Supreme Court is unworthy of credence. He was then already a municipal judge. He could not have openly exposed himself to the Supreme Court as being engaged in private practice. Besides there is no reason to follow-up in person any case with the Supreme Court. Similarly, his claims that he spent a lot of money in looking for witnesses and trying to trace the whereabouts of his clients are selfserving, devoid of corroboration and unsupported by document evidence. Finally, he presented the receipts for the payment of docket fees in the amount of P580.00, Exhs. 28 and 29, which he alleges was paid by him out of his own pocket. Standing alone, those receipts do not prove his claim. The normal practice is for the client to advance to his lawyer the amount for the filing fees. It is the lawyer who pays the docket fees and he can easily procure the issuance of the receipts in his own name. Complainant Makadaya Sadik declared that her husband took care of the payment of the docket fees. Respondent did not cross-examine Usodan Sadik on this point.
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A. The claimants. (tsn, pp. 2122; 11/13/95). xxx xxx xxx COURT: WHO FAILED TO APPEAR? A. Makadaya Sadik and Linang Minalang despite notice. The claimants failed to appear and procured another persons (sic) who are impostors. This Kunug Minalang and Sadik Paito took charge of the witnesses and they presented another witnesses (sic). COURT: I DO NOT UNDERSTAND THIS. ANOTHER WITNESSES OR ANOTHER PERSON WAS PRESENTED TO TESTIFY AS LINANG MINALANG AND SADIK? A. At that time we needed more witnesses so the parties and Barogong Paito agreed to testify but two persons who are principal witnesses failed to come. COURT: SO WHEN THEY FAILED TO COME, WHAT DID SADIK PAITO DO? A. They took charge of presenting another witnesses (sic). Q. WHAT DO YOU MEAN BY "TOOK CHARGE", YOU MEAN, THEY PRESENTED TO YOU PERSONS WHO WERE NOT REALLY LINANG MINALANG AND MAKADAYA SADIK? A. They told me that instead of them who could not go to court, they faked another persons (sic). Q. AND THESE PERSONS WHO WERE FAKED APPEARED AND TESTIFIED AS LINANG MINALANG AND MAKADAYA SADIK? A. As a matter of fact, only Makadaya Sadik took the stand because Linang Minalang failed to come. Q. MAKADAYA SADIK TESTIFIED IN COURT? A. In reality, Makadaya Sadik failed to appear also. Q. BUT SOMEBODY TESTIFIED AS IF HE IS MAKADAYA SADIK? A. Yes. Q. I WANT THIS VERY CLEAR, HADJI SARIP PAITO PRESENTED TO YOU ANOTHER PERSON WHO CLAIM TO BE MAKADAYA SADIK BUT HE IS REALLY NOT MAKADAYA? A. Yes. Q. AND THAT PERSON WHO ACTUALLY TESTIFIED CLAIMING TO BE MAKADAYA SADIK WAS THE PERSON WHO TESTIFIED THE LAST TIME AS MAKADAYA SADIK? A. That is what I can recall. COURT: PROCEED.
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A. As far as I know, that is the work of Usodan Hadji Ibrahim. COURT: THIS USODAN HADJI IBRAHIM IS NOT THE PERSON NOW IN COURT? A. As far as I know, he is Usodan Ibrahim. Q. IN OTHER WORDS, THIS IS OR THE PERSON WHO APPEARED AS COMPLAINANT IS ACTUALLY USODAN IBRAHIM? A. As far as I know, he is not working with me. Q. SO THAT THIS PERSON NAMED USODAN SADIK, ONE OF THE COMPLAINANTS, IS ACTUALLY USODAN IBRAHIM? A. Yes. Q. AND YOU NOW CLAIM THAT USODAN IBRAHIM WAS THE ONE WHO PREPARED THE FRAUDULENT POLICY FOR LEKIYA PAITO? A. As far as I was told. (tsn, pp. 30-31; 11/13/95). Yet knowing that the insurance claim was fraudulent, he filed the complaint and compounded it by presenting false witnesses in court. He transgressed not only the Canons of Professional Ethics but also the Revised Penal Code. In his single-minded intent to keep the insurance proceeds for himself and deprive complainant Makadaya Sadik of her share, respondent duga deep hole for himself. His cure is worse than the disease. It is possible that the insurance taken for Lekiya Paito was indeed a scam. It is not an uncommon occurrence in these parts to insure a person who is near death or for an insured to fake his death and collect the proceeds. But scam or not we are convinced that the complainant Makadaya Sadik is not an impostor. She denied that she is the step-daughter of Lekiya Paito. She insisted she is the youngest daughter and she named all her brothers and sisters. And it was respondent who presented her in Civil Case No. 2747 as Makadaya Sadik daughter of Lekiya Sadik and one of the beneficiaries of the latter's insurance policy. The Investigating Judge then recommended that a penalty ranging from a fine of twenty thousand (P20,000. 00) pesos to suspension for six (6) months be imposed depending on respondent's record. Respondent was likewise ordered to pay to herein complainant, Makadaya Sadik, the sum of fifteen thousand (P15,000.00) pesos less the sum of five thousand five hundred (P5,500.00) pesos equivalent to one-half of the expenses and attorney's fees demanded by respondent. In the resolution of March 13, 1996, this Court referred this case to the Office of the Court Administrator fo revaluation, report and recommendation. In its memorandum of August 15, 1996, the Office of the Court Administrator made the following findings and evaluation: The undersigned concurs with the finding of Executive Judge Salazar that respondent be found
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service with prejudice to his appointment to any position in the government, including governmentowned or controlled corporations, and with forfeiture of all retirement benefits except this accrued leave credits; and b) he be ORDERED to turnover to complainant Makadaya-Sadik and Linang Minalang (co-plaintiff in Civil Case No. 2747) the sum of Thirty Thousand Pesos (P30,000.00) which he received from the Clerk of Court of RTC, Branch 13, Cotabato City last 1 October 1993 within fifteen (15) days from receipt of notice. The Court has thoroughly studied the record of this case and has ascertained that the findings of the investigating judge, concurred in by the Office of the Court Administrator, are adequately supported by the evidence and are in accord with applicable legal principles. Consequently, the Court hereby adopts the OCA's recommendation of meting out the supreme penalty of dismissal on herein respondent judge. It must be borne in mind that courts exist to dispense and to promote justice. 1 However, the reality of justice depends, above all, on the intellectual, moral and personal quality of the men and women who are called to serve as our judges. 2 In a piece written by Rosenberg, this point was emphasized, thus: Justice is an alloy of men and mechanisms in which, as Roscoe Pound remarked, "men count more than machinery." Assume the clearest rules, the most enlightened procedures, the most sophisticated court techniques; the key factor is still the judge. In the long run, "There is no guarantee of justice except the personality of the judge. The reason the judge makes or breaks the system of justice is that rules are not self-declaring or self-applying. Even in a government of laws, men make the decisions." 3 In the recent case of Jocelyn Talens-Dabon v. Judge Hermin E. Arceo, 4 the Court emphasized the importance of the role played by judges in the judicial system, thus: The integrity of the Judiciary rests not only upon the fact that it is able to administer justice but also upon the perception and confidence of the community that the people who run the system have done justice. At times, the strict manner by which we apply the law may, in fact, do justice but may not necessarily create confidence among the people that justice, indeed, is served. Hence, in order to create such confidence, the people who run the judiciary, particularly judges and justices, must not only be proficient in both the substantive and procedural aspects of the law, but more importantly, they must possess the highest integrity, probity, and unquestionable moral uprightness, both in their public and private lives. Only then can the people be reassured that the wheels of justice in this country run with fairness and equity, thus creating confidence in the judicial system. Insistence on personal integrity and honesty as indispensable qualifications for judicial office reflect an awareness in the legal profession of the immensity of the damage that can be done to the legal order by judicial corruption. The rationale for this was succinctly put by Jones, thus: If a physician or a professor or a businessman is discovered to be a thief or an influence peddler, the disclosure will not put medicine, higher education, or business into general disrepute. But judges are different and more representative; revelations of judicial corruption create suspicion and loss of confidence in legal processes generally and endanger public respect for law. 5 Indeed, to be effective in his role, a judge must be a man of exceptional integrity and honesty. The special urgency for requiring these qualities in a judge is not hard to understand for the judge acts directly upon the property, liberty, even life, of his countrymen. Hence, being in a position of such grave responsibility in the
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interest because he was engaged by the PPSTA, of which complainants were members, and was being paid out of its corporate funds where complainants have contributed. Despite being told by PPSTA members of the said conflict of interest, respondent refused to withdraw his appearance in the said cases. Moreover, complainants aver that respondent violated Rule 15.062 of the Code of Professional Responsibility when he appeared at the meeting of the PPSTA Board and assured its members that he will win the PPSTA cases. In his Answer,3 respondent stressed that he entered his appearance as counsel for the PPSTA Board Members for and in behalf of the ASSA Law and Associates. As a partner in the said law firm, he only filed a "Manifestation of Extreme Urgency" in OMB Case No. 0-970695.4 On the other hand, SEC Case No. 05-97-5657 was handled by another partner of the firm, Atty. Agustin V. Agustin. Respondent claims that it was complainant Atty. Ricafort who instigated, orchestrated and indiscriminately filed the said cases against members of the PPSTA and its Board. Respondent pointed out that his relationship to Aurelio S. Salunat was immaterial; and that when he entered into the retainer contract with the PPSTA Board, he did so, not in his individual capacity, but in representation of the ASSA Law Firm. He denied that he ensured the victory of the PPSTA Board in the case he was handling. He merely assured the Board that the truth will come out and that the case before the Ombudsman will be dismissed for lack of jurisdiction, considering that respondents therein are not public officials, but private employees. Anent the SEC case, respondent alleged that the same was being handled by the law firm of Atty. Eduardo de Mesa, and not ASSA. By way of Special and Affirmative Defenses, respondent averred that complainant Atty. Ricafort was himself guilty of gross violation of his oath of office amounting to gross misconduct, malpractice and unethical conduct for filing trumped-up charges against him and Atty. De Mesa. Thus, he prayed that the complaint against him be dismissed and, instead, complainant Ricafort be disciplined or disbarred. The complainant was docketed as CBD Case No. 97-531 and referred to the IBP Commission on Bar Discipline. After investigation, Commissioner Lydia A. Navarro recommended that respondent be suspended from the practice of law for six (6) months. The Board of Governors thereafter adopted Resolution No. XV-3003-230 dated June 29, 2002, approving the report and recommendation of the Investigating Commissioner. Respondent filed with this Court a Motion for Reconsideration of the above Resolution of the IBP Board of Governors. The pertinent rule of the Code of Professional Responsibility provides: RULE 15.03. A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts. There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties. The test is "whether or not in behalf of one client, it is the lawyers duty to fight for an issue or claim, but it is his duty to oppose it for the other client. In brief, if he argues for one client, this argument will be opposed by him when he argues for the other client."5 This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used. 6 Also, there is conflict of interests if the acceptance of the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation to use against his first client any knowledge acquired through their connection. 7 Another test of the inconsistency of interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof. 8 In this jurisdiction, a corporations board of directors i s understood to be that body which (1) exercises all powers provided for under the Corporation Code; (2) conducts all business of the corporation; and (3) controls and holds all property of the corporation. 9 Its members have been characterized as trustees or directors clothed with a fiduciary character.10 It is clearly separate and distinct from the corporate entity itself.
BENEDICTO HORNILLA and ATTY. RICAFORT, complainants, vs. ATTY. ERNESTO S. SALUNAT, respondent. RESOLUTION YNARES-SANTIAGO, J.:
On November 21, 1997, Benedicto Hornilla and Federico D. Ricafort filed an administrative complaint 1 with the Integrated Bar of the Philippines (IBP) Commission on Bar Discipline, against respondent Atty. Ernesto S. Salunat for illegal and unethical practice and conflict of interest. They alleged that respondent is a member of the ASSA Law and Associates, which was the retained counsel of the Philippine Public School Teachers Association (PPSTA). Respondents brother, Aurelio S. Salunat, was a member of the PPSTA Board which approved respondents engagement as retained counsel of PPSTA. Complainants, who are members of the PPSTA, filed an intracorporate case against its members of the Board of Directors for the terms 1992-1995 and 1995-1997 before the Securities and Exchange Commission, which was docketed as SEC Case No. 05-97-5657, and a complaint before the Office of the Ombudsman, docketed as OMB Case No. 0-97-0695, for unlawful spending and the undervalued sale of real property of the PPSTA. Respondent entered his appearance as counsel for the PPSTA Board members in the said cases. Complainants contend that respondent was guilty of conflict of
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JOSEFINA M. ANION, Complainant, vs. ATTY. CLEMENCIO SABITSANA, JR., Respondent. DECISION BRION, J.: We resolve this disbarment complaint against Atty. Clemencio Sabitsana, Jr. who is charged of: (1) violating the lawyers duty to preserve confidential information received from his client; 1 and (2) violating the prohibition on representing conflicting interests. 2 In her complaint, Josefina M. Anion (complainant) related that she previously engaged the legal services of Atty. Sabitsana in the preparation and execution in her favor of a Deed of Sale over a parcel of land owned by her late common-law husband, Brigido Caneja, Jr. Atty. Sabitsana allegedly violated her confidence when he subsequently filed a civil case against her for the annulment of the Deed of Sale in behalf of Zenaida L. Caete, the legal wife of Brigido Caneja, Jr. The complainant accused Atty. Sabitsana of using the confidential information he obtained from her in filing the civil case. Atty. Sabitsana admitted having advised the complainant in the preparation and execution of the Deed of Sale. However, he denied having received any confidential information. Atty. Sabitsana asserted that the present disbarment complaint was instigated by one Atty. Gabino Velasquez, Jr., the notary of the disbarment complaint who lost a court case against him (Atty. Sabitsana) and had instigated the complaint for this reason. The Findings of the IBP Investigating Commissioner In our Resolution dated November 22, 1999, we referred the disbarment complaint to the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. In his Report and Recommendation dated November 28, 2003, IBP Commissioner Pedro A. Magpayo Jr. found Atty. Sabitsana administratively liable for representing conflicting interests. The IBP Commissioner opined: In Bautista vs. Barrios, it was held that a lawyer may not handle a case to nullify a contract which he prepared and thereby take up inconsistent positions. Granting that Zenaida L. Caete, respondents present client in Civil Case No. B-1060 did not initially learn about the sale executed by Bontes in favor of complainant thru the confidences and information divulged by complainant to respondent in the course of the preparation of the said deed of sale, respondent nonetheless has a duty to decline his current employment as counsel of Zenaida Caete in view of the rule prohibiting representation of conflicting interests. In re De la Rosa clearly suggests that a lawyer may not represent conflicting interests in the absence of the written consent of all parties concerned given after a full disclosure of the facts. In the present case, no such written consent was secured by respondent before accepting employment as Mrs. Caetes counsel -of-record. x x x xxx Complainant and respondents present client, being contending claimants to the same property, the conflict of interest is obviously present. There is said to be inconsistency of interest when on behalf of one client, it is the attorneys duty to contend for that which his duty to another client requires him to oppose. In brief, if he argues for one client this argument will be opposed by him when he argues for the other client. Such is the case with which we are now confronted, respondent being asked by one client to nullify what he had formerly notarized as a true and valid sale between Bontes and the complainant. (footnotes omitted)3 The IBP Commissioner recommended that Atty. Sabitsana be suspended from the practice of law for a period of one (1) year. 4 The Findings of the IBP Board of Governors In a resolution dated February 27, 2004, the IBP Board of Governors resolved to adopt and approve the Report and Recommendation of the IBP Commissioner after finding it to be fully supported by the evidence on record, the applicable laws and rules. 5 The IBP Board of Governors agreed with the IBP Commissioners recommended penalty.
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Three, despite the knowledge of the clashing interests between his two clients, Atty. Sabitsana accepted the engagement from Zenaida Caete. Four, Atty. Sabitsanas actual knowledge of the conflicting interests between his two clients was demonstrated by his own actions: first, he filed a case against the complainant in behalf of Zenaida Caete; second, he impleaded the complainant as the defendant in the case; and third, the case he filed was for the annulment of the Deed of Sale that he had previously prepared and executed for the complainant. By his acts, not only did Atty. Sabitsana agree to represent one client against another client in the same action; he also accepted a new engagement that entailed him to contend and oppose the interest of his other client in a property in which his legal services had been previously retained. To be sure, Rule 15.03, Canon 15 of the Code of Professional Responsibility provides an exception to the above prohibition. However, we find no reason to apply the exception due to Atty. Sabitsanas failure to comply with the requirements set forth under the rule. Atty. Sabitsana did not make a full disclosure of facts to the complainant and to Zenaida Caete before he accepted the new engagement with Zenaida Caete. The records likewise show that although Atty. Sabitsana wrote a letter to the complainant informing her of Zenaida Caetes adverse claim to the property covered by the Deed of Sale and, urging her to settle the adverse claim; Atty. Sabitsana however did not disclose to the complainant that he was also being engaged as counsel by Zenaida Caete. 11 Moreover, the records show that Atty. Sabitsana failed to obtain the written consent of his two clients, as required by Rule 15.03, Canon 15 of the Code of Professional Responsibility. Accordingly, we find as the IBP Board of Governors did Atty. Sabitsana guilty of misconduct for representing conflicting interests. We likewise agree with the penalty of suspension for one (1) year from the practice of law recommended by the IBP Board of Governors. This penalty is consistent with existing jurisprudence on the administrative offense of representing conflicting interests. 12 We note that Atty. Sabitsana takes exception to the IBP recommendation on the ground that the charge in the complaint was only for his alleged disclosure of confidential information, not for representation of conflicting interests. To Atty. Sabitsana, finding him liable for the latter offense is a violation of his due process rights since he only answered the designated charge. We find no violation of Atty. Sabitsanas due process rights. Althoug h there was indeed a specific charge in the complaint, we are not unmindful that the complaint itself contained allegations of acts sufficient to constitute a violation of the rule on the prohibition against representing conflicting interests. As stated in paragraph 8 of the complaint: Atty. Sabitsana, Jr. accepted the commission as a Lawyer of ZENAIDA CANEJA, now Zenaida Caete, to recover lands from Complainant, including this land where lawyer Atty. Sabitsana, Jr. has advised his client [complainant] to execute the second sale[.] Interestingly, Atty. Sabitsana even admitted these allegations in his answer.13 He also averred in his Answer that: 6b. Because the defendant-to-be in the complaint (Civil Case No. B1060) that he would file on behalf of Zenaida Caneja-Caete was his former client (herein complainant), respondent asked [the] permission of Mrs. Caete (which she granted) that he would first write a letter (Annex "4") to the complainant proposing to settle the case amicably between them but complainant ignored it. Neither did she object to respondents handling the case in behalf of Mrs. Caete on the ground she is now invoking in her instant complaint. So respondent felt free to file the complaint against her. 141wphi1 We have consistently held that the essence of due process is simply the opportunity to be informed of the charge against oneself and to be heard or, as applied to administrative proceedings, the opportunity to explain ones side or the opportunity to seek a reconsideration of the action or ruling complained of.15 These opportunities were all afforded to Atty. Sabitsana, as shown by the above circumstances. All told, disciplinary proceedings against lawyers are sui generis.16 In the exercise of its disciplinary powers, the Court merely calls upon a
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Samson and his relatives later demanded from Atty. Era that they be given instead a deed of absolute sale to enable them to liquidate the property among themselves. It took some period of negotiations between them and Atty. Era before the latter delivered to them on November 27, 2003 five copies of a deed of absolute sale involving the property. However, Atty. Era told them that whether or not the title of the property had been encumbered or free from lien or defect would no longer be his responsibility. He further told them that as far as he was concerned he had already accomplished his professional responsibility towards them upon the amicable settlement of the cases between them and ICS Corporation.4 When Samson and his co-complainants verified the title of the property at the Registry of Deeds and the Assessors Office of Antipolo City, they were dismayed to learn that they could not liquidate the property because it was no longer registered under the name of ICS Corporation but was already under the name of Bank Wise Inc.5Upon their urging, Atty. Era negotiated as their counsel with ICS Corporation. Due to the silence of Atty. Era for sometime thereafter, Samson and his group wrote to him on September 8, 2004 to remind him about his guarantee and the promise to settle the issues with Sison and her cohorts. But they did not hear from Atty. Era at all.6 During the hearings in the RTC, Atty. Era did not anymore appear for Samson and his group. This forced them to engage another lawyer. They were shocked to find out later on, however, that Atty. Era had already been entering his appearance as the counsel for Sison in her other criminal cases in the other branches of the RTC in Quezon City involving the same pyramiding scam that she and her ICS Corporation had perpetrated.7 In this regard, they established Atty. Eras legal representation of Sison by submitting several certified copies of the minutes of the proceedings in the criminal cases involving Sison and her group issued by Branch 102 and Branch 220 of the RTC in Quezon City showing that Atty. Era had appeared as the counsel of Sison in the cases for estafa pending and being tried in said courts.8 They also submitted a certification issued on November 3, 2004 indicating that Atty. Era had visited Sison, an inmate in the Female Dormitory in Camp Karingal, Sikatuna Village, Quezon City as borne out by the blotter logbook of that unit.9 On January 20, 2005, Samson executed an affidavit alleging the foregoing antecedents, and praying for Atty. Eras disbarment on the ground of his violation of the trust, confidence and respect reposed in him as their counsel.10 Upon being required by the Court to comment on the complaint against him within 10 days from notice, Atty. Era several times sought the extension of his period to file the comment to supposedly enable him to collate documents relevant to his comment. 11 The Court granted his request and allowed him an extension totaling 40 days. But despite the lapse of the extended period, he did not file his comment. On September 27, 2005, Samson reiterated his complaint for disbarment against Atty. Era.12 By its resolution dated March 1, 2006, 13 the Court required Atty. Era to show cause why he should not be disciplinarily dealt with or held in contempt for such failure to submit his comment. In the comment that he subsequently filed on April 11, 2006 in the Office of the Bar Confidant,14 Atty. Era alleged that the conclusion on April 23, 2002 of the compromise settlement between Samson and his group, on one hand, and Sison and her ICS Corporation, on the other, had terminated the lawyer-client relationship between him and Samson and his group; and that on September 1, 2003, he had been appointed as counsel de officio for Sison by Branch 102 of the RTC in Quezon City only for purposes of her arraignment. On July 17, 2006, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. 15 In his report and recommendation dated October 1, 2007, 16 the Investigating Commissioner of the IBP Commission on Bar Discipline (IBPCBD) found Atty. Era guilty of misconduct for representing conflicting interests, for failing to serve his clients with competence and diligence, and for failing to champion his clients cause with wholehearted fidelity, care and devotion. The Investigating Commissioner observed that the evidence did not sustain Atty. Eras claim that his legal services as counsel for Samson
An attorney who wittingly represents and serves conflicting interests may be suspended from the practice of law, or even disbarred when circumstances so warrant. Antecedents Ferdinand A. Samson has brought this complaint for disbarment charging respondent Atty. Edgardo O. Era with violation of his trust and confidence of a client by representing the interest of Emilia C. Sison, his present client, in a manner that blatantly conflicted with his interest. Samson and his relatives were among the investors who fell prey to the pyramiding scam perpetrated by ICS Exports, Inc. Exporter, Importer, and Multi-Level Marketing Business (ICS Corporation), a corporation whose corporate officers were led by Sison. The other officers were Ireneo C. Sison, William C. Sison, Mimosa H. Zamudio, Mirasol H. Aguilar and Jhun Sison. Samson engaged Atty. Era to represent and assist him and his relatives in the criminal prosecution of Sison and her group. Pursuant to the engagement, Atty. Era prepared the demand letter dated July 19, 2002 demanding the return or refund of the money subject of their complaints. He also prepared the complaint-affidavit that Samson signed and swore to on July 26, 2002. Subsequently, the complaintaffidavit charging Sison and the other corporate officials of ICS Corporation with several counts of estafa1was presented to the Office of the City Prosecutor of Quezon City (OCPQC). After the preliminary investigation, the OCPQC formally charged Sison and the others with several counts of estafa in the Regional Trial Court, Branch 96 (RTC), in Quezon City.2 In April 2003, Atty. Era called a meeting with Samson and his relatives to discuss the possibility of an amicable settlement with Sison and her cohorts. He told Samson and the others that undergoing a trial of the cases would just be a waste of time, money and effort for them, and that they could settle the cases with Sison and her group, with him guaranteeing the turnover to them of a certain property located in Antipolo City belonging to ICS Corporation in exchange for their desistance. They acceded and executed the affidavit of desistance he prepared, and in turn they received a deed of assignment covering land registered under Transfer Certificate of Title No. R-4475 executed by Sison in behalf of ICS Corporation. 3
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There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties. The test is "whether or not in behalf of one client, it is the lawyers duty to fight for an issue or claim, but it is his duty to oppose it for the other client. In brief, if he argues for one client, this argument will be opposed by him when he argues for the other client." This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used. Also, there is conflict of interests if the acceptance of the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation to use against his first client any knowledge acquired through their connection. Another test of the inconsistency of interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof.28 The prohibition against conflict of interest rests on five rationales, rendered as follows: x x x. First, the law seeks to assure clients that their lawyers will represent them with undivided loyalty. A client is entitled to be represented by a lawyer whom the client can trust. Instilling such confidence is an objective important in itself. x x x. Second, the prohibition against conflicts of interest seeks to enhance the effectiveness of legal representation. To the extent that a conflict of interest undermines the independence of the lawyers professional judgment or inhibits a lawyer from working with appropriate vigor in the clients behalf, the clients expectation of effective representation x x x could be compromised. Third, a client has a legal right to have the lawyer safeguard the clients confidential information xxx. 1wphi1 Preventing use of confidential client information against the interests of the client, either to benefit the lawyers personal interest, in aid of some other client, or to foster an assumed public purpose is facilitated through conflicts rules that reduce the opportunity for such abuse. Fourth, conflicts rules help ensure that lawyers will not exploit clients, such as by inducing a client to make a gift to the lawyer xxx. Finally, some conflict-of-interest rules protect interests of the legal system in obtaining adequate presentations to tribunals. In the absence of such rules, for example, a lawyer might appear on both sides of the litigation, complicating the process of taking proof and compromise adversary argumentation x x x.29 The rule prohibiting conflict of interest was fashioned to prevent situations wherein a lawyer would be representing a client whose interest is directly adverse to any of his present or former clients. In the same way, a lawyer may only be allowed to represent a client involving the same or a substantially related matter that is materially adverse to the former client only if the former client consents to it after consultation.30 The rule is grounded in the fiduciary obligation of loyalty.31 Throughout the course of a lawyer-client relationship, the lawyer learns all the facts connected with the client's case, including the weak and strong points of the case. Knowledge and information gathered in the course of the relationship must be treated as sacred and guarded with care.1wphi1 It behooves lawyers not only to keep inviolate the clients 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 paramount in the administration of justice.32 The nature of that relationship is, therefore, one of trust and confidence of the highest degree.33 Contrary to Atty. Eras ill-conceived attempt to explain his disloyalty to Samson and his group, the termination of the attorney-client relationship does not justify a lawyer to represent an interest adverse to or in conflict with that of the former client. The spirit behind this rule is that the clients confidence once given should not be stripped by the mere expiration of the professional employment. Even after the severance of the relation, a lawyer should not do anything that will injuriously affect his former client in any matter in which the lawyer previously represented the client. Nor should the lawyer disclose or use any of the clients confidences acquired in the previous relation.34 In this regard, Canon 17 of the Code of Professional Responsibility expressly declares that: "A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him."
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On 24 October 1975, the Solicitor-General conducted a hearing where respondent took the witness stand on his own behalf. The record of the case shows the following background facts: In an action for partition instituted by Generosa as compulsory heir of the deceased Teofilo Buted, respondent was counsel for Luciana Abadilla and a certain Angela Buted. Involved in said partition case was a parcel of land Identified as Lot 9439-B. Respondent ultimately succeeded in defending Luciana Abadilla's claim of exclusive ownership over Lot 9439-B. When Luciana died, respondent withdrew his appearance from that partition case. It appears that Luciana Abadilla sold the lot to Benito Bolisay and a new Transfer Certificate of Title over the lot was issued in the name of complainant spouses. When an action for specific performance was lodged by a couple named Luis Sy and Elena Sy against Benito Bolisay as one of the defendants, 2 the latter retained the services of respondent Atty. Hernando however claims that he rendered his services to Benito Bolisay free of charge. Subject of this case was a contract of lease executed by Benito's co-defendant therein, Enrique Buted, over a house standing on a portion of Lot No. 9439-B. It appears that the Sy's were claiming that the lease extended to the aforementioned lot. Benito was then asserting ownership over the realty by virtue of a Deed of Sale executed by Luciana Abadilla in his favor. Eventually, the Sy's were ordered to vacate the house subject of the lease. Respondent avers that the relationship between himself and Benito Bolisay as regards this case was terminated on 4 December 1969. 3 On 23 February 1974, respondent Hernando, without the consent of the heirs of Luciana Abadilla and complainant spouses, filed a petition on behalf of the heirs of Carlos, Dionisia and Francisco all surnamed Abadilla, seeking the cancellation of the Transfer Certificate of Title (TCT) of complainant spouses over the lot. Carlos, Dionisia and Francisco were Luciana's registered co-owners in the original certificate of title covering Lot No. 9439-B. 4 At the hearing, respondent Hernando testified that if the petition for cancellation of TCT was granted, Lot 9439-B would no longer be owned by complainant spouses but would be owned in common by all the heirs of Luciana Abadilla. 5 Complainant spouses, upon learning of respondent's appearance against them in the cadastral proceeding, manifested their disapproval thereof in a letter dated 30 July 1974. 6 Respondent however, pursued the case until it was eventually dismissed by the R trial court on 2 September 1974 on the ground of prescription. 7 E At the hearing before the Office of the Solicitor General and in his S Answer, respondent Hernando admitted his involvement in the cadastral case as counsel for the Abadillas but denied having seen or O hold of the controversial Transfer Certificate of Title, and having taken availed himself of any confidential information relating to Lot 9439-B. L In U its Report and Recommendation dated 29 March 1990, the Solicitor General recommends that respondent be suspended from theTpractice of law for three (3) months for violation of the Canons of Professional Ethics by representing clients with conflicting interests, and I filed before this Court the corresponding Complaint 8 dated 30 March 1990. O The issue raised in this proceeding is: whether or not respondent N Hernando had a conflict of interests under the circumstances described above. The Canons of Professional Ethics, the then prevailing parameters of behavior of members of the bar, defines a conflict of interests situation in the following manner: 6. Adverse influence and conflicting interests. xxx xxx xxx It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.
A.C. No. 1359 October 17, 1991 GENEROSA BUTED and BENITO BOLISAY, petitioners, vs. ATTY. HAROLD M. HERNANDO, respondent. Jorge A. Dolorfino for petitioners.
PER CURIAM:p On 22 August 1974, spouses Generosa Buted and Benito Bolisay filed an administrative complaint for malpractice against respondent Atty. Harold M. Hernando, charging the latter with having wantonly abused professional secrets or information obtained by him as their counsel. After respondent Hernando filed his Answer on 25 June 1974, the Court, in a resolution dated 4 October 1974 referred the complaint to the Solicitor-General for investigation, report and recommendation. On 10 February 1975, complainants presented a Joint Affidavit of Desistance. 1
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principles of public policy, on good taste. As has been said another case, the question is not necessarily one of the rights of the parties, but as to whether the attorney has adhered to proper professional standard. With these thoughts in mind, it behooves attorneys, like Caesar's wife, not only to keep inviolate the client's confidence, but also to avoid the appearance of treachery and double-dealing. Only thus can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of justice. 13 (Emphasis supplied) This Court went further in San Jose v. Cruz, 14 where the lawyer was charged with malpractice for having represented a new client whose interest was opposed to those of his former clients in another case: The record shows that the respondent offered his services to the Matienzo spouses knowing that the petitioner had obtained a favorable judgment in the civil case No. 5480 and that his efforts in the subsequent civil case No. 5952 would frustrate said judgment and render it ineffectual, as has really been the result upon his obtaining the writ of injunction above-mentioned. Obviously his conduct is unbecoming to an attorney and cannot be sanctioned by the courts. An attorney owes loyalty to his client not only in the case in which he has represented him but also after the relation of attorney and client has terminated and it is not a good practice to permit him afterwards to defend in another case other persons against his former client under the pretext that the case is distinct from, and independent of the former case. 15 (Emphasis supplied)
MA. LUISA HADJULA, complainant, vs. ATTY. ROCELES F. MADIANDA, respondent. DECISION GARCIA, J.: Under consideration is Resolution No. XVI-2004-472 of the Board of Governors, Integrated Bar of the Philippines (IBP), relative to the complaint for disbarment filed by herein complainant Ma. Luisa Hadjula against respondent Atty. Roceles F. Madianda. The case started when, in an AFFIDAVIT-COMPLAINT1 bearing date September 7, 2002 and filed with the IBP Commission on Bar Discipline, complainant charged Atty. Roceles F. Madianda with violation of Article 2092 of the Revised Penal Code and Canon Nos. 15.02 and 21.02 of the Code of Professional Responsibility. In said affidavit-complaint, complainant alleged that she and respondent used to be friends as they both worked at the Bureau of Fire Protection (BFP) whereat respondent was the Chief Legal Officer while she was the Chief Nurse of the Medical, Dental and Nursing Services. Complainant claimed that, sometime in 1998, she approached respondent for some legal advice. Complainant further alleged that, in the course of their conversation which was supposed to be kept confidential, she disclosed personal secrets and produced copies of a marriage contract, a birth certificate and a baptismal certificate, only to be informed later by the respondent that she (respondent) would refer the matter to a lawyer friend. It was malicious, so complainant states, of respondent to have refused handling her case only after she had already heard her secrets. Continuing, complainant averred that her friendship with respondent soured after her filing, in the later part of 2000, of criminal and disciplinary actions against the latter. What, per complainant's account, precipitated the filing was when respondent, then a member of the BFP promotion board, demanded a cellular phone in exchange for the complainant's promotion.
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RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and , finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering the actuation of revealing information given to respondent during a legal consultation, Atty. Roceles Madianda is hereby REPRIMANDED. We AGREE with the recommendation and the premises holding it together. As it were, complainant went to respondent, a lawyer who incidentally was also then a friend, to bare what she considered personal secrets and sensitive documents for the purpose of obtaining legal advice and assistance. The moment complainant approached the then receptive respondent to seek legal advice, a veritable lawyer-client relationship evolved between the two. Such relationship imposes upon the lawyer certain restrictions circumscribed by the ethics of the profession. Among the burdens of the relationship is that which enjoins the lawyer, respondent in this instance, to keep inviolate confidential information acquired or revealed during legal consultations. The fact that one is, at the end of the day, not inclined to handle the client's case is hardly of consequence. Of little moment, too, is the fact that no formal professional engagement follows the consultation. Nor will it make any difference that no contract whatsoever was executed by the parties to memorialize the relationship. As we said inBurbe v. Magulta,6 A lawyer-client relationship was established from the very first moment complainant asked respondent for legal advise regarding the former's business. To constitute professional employment, it is not essential that the client employed the attorney professionally on any previous occasion. It is not necessary that any retainer be paid, promised, or charged; neither is it material that the attorney consulted did not afterward handle the case for which his service had been sought. It a person, in respect to business affairs or troubles of any kind, consults a lawyer with a view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces with the consultation, then the professional employments is established. Likewise, a lawyer-client relationship exists notwithstanding the close personal relationship between the lawyer and the complainant or the non-payment of the former's fees. Dean Wigmore lists the essential factors to establish the existence of the attorney-client privilege communication, viz: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived. 7 With the view we take of this case, respondent indeed breached his duty of preserving the confidence of a client. As found by the IBP Investigating Commissioner, the documents shown and the information revealed in confidence to the respondent in the course of the legal consultation in question, were used as bases in the criminal and administrative complaints lodged against the complainant. The purpose of the rule of confidentiality is actually to protect the client from possible breach of confidence as a result of a consultation with a lawyer. The seriousness of the respondent's offense notwithstanding, the Court feels that there is room for compassion, absent compelling evidence that the respondent acted with ill-will. Without meaning to condone the error of respondent's ways, what at bottom is before the Court is two former friends becoming bitter enemies and filing charges and counter-charges against each other using whatever convenient tools and data were readily available. Unfortunately, the personal information respondent gathered from her conversation with complainant became handy in her quest to even the score. At the end of the day, it appears clear to us that respondent was actuated by the urge to retaliate without perhaps realizing that, in the process of
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was found guilty of misconduct and meted out the penalty of one month suspension without pay;8 and, (4) the Information for violation of Section 7(b)(2) of Republic Act No. 6713, as amended, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees before the Sandiganbayan. 9 Complainant Mercado alleged that said criminal complaint for falsification of public document (I.S. No. PSG 99-9823) disclosed confidential facts and information relating to the civil case for annulment, then handled by respondent Vitriolo as her counsel. This prompted complainant Mercado to bring this action against respondent. She claims that, in filing the criminal case for falsification, respondent is guilty of breaching their privileged and confidential lawyer-client relationship, and should be disbarred. Respondent filed his Comment/Motion to Dismiss on November 3, 1999 where he alleged that the complaint for disbarment was all hearsay, misleading and irrelevant because all the allegations leveled against him are subject of separate fact-finding bodies. Respondent claimed that the pending cases against him are not grounds for disbarment, and that he is presumed to be innocent until proven otherwise.10 He also states that the decision of the Ombudsman finding him guilty of misconduct and imposing upon him the penalty of suspension for one month without pay is on appeal with the Court of Appeals. He adds that he was found guilty, only of simple misconduct, which he committed in good faith.11 In addition, respondent maintains that his filing of the criminal complaint for falsification of public documents against complainant does not violate the rule on privileged communication between attorney and client because the bases of the falsification case are two certificates of live birth which are public documents and in no way connected with the confidence taken during the engagement of respondent as counsel. According to respondent, the complainant confided to him as then counsel only matters of facts relating to the annulment case. Nothing was said about the alleged falsification of the entries in the birth certificates of her two daughters. The birth certificates are filed in the Records Division of CHED and are accessible to anyone.12 In a Resolution dated February 9, 2000, this Court referred the administrative case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. 13 The IBP Commission on Bar Discipline set two dates for hearing but complainant failed to appear in both. Investigating Commissioner Rosalina R. Datiles thus granted respondent's motion to file his memorandum, and the case was submitted for resolution based on the pleadings submitted by the parties.14 On June 21, 2003, the IBP Board of Governors approved the report of investigating commissioner Datiles, finding the respondent guilty of violating the rule on privileged communication between attorney and client, and recommending his suspension from the practice of law for one (1) year. On August 6, 2003, complainant, upon receiving a copy of the IBP report and recommendation, wrote Chief Justice Hilario Davide, Jr., a letter of desistance. She stated that after the passage of so many years, she has now found forgiveness for those who have wronged her. At the outset, we stress that we shall not inquire into the merits of the various criminal and administrative cases filed against respondent. It is the duty of the tribunals where these cases are pending to determine the guilt or innocence of the respondent. We also emphasize that the Court is not bound by any withdrawal of the complaint or desistance by the complainant. The letter of complainant to the Chief Justice imparting forgiveness upon respondent is inconsequential in disbarment proceedings. We now resolve whether respondent violated the rule on privileged communication between attorney and client when he filed a criminal case for falsification of public document against his former client. A brief discussion of the nature of the relationship between attorney and client and the rule on attorney-client privilege that is designed to protect such relation is in order. In engaging the services of an attorney, the client reposes on him special powers of trust and confidence. Their relationship is strictly personal and highly confidential and fiduciary. The relation is of such
ROSA F. MERCADO, complainant, vs. ATTY. JULITO D. VITRIOLO, respondent. DECISION PUNO, J.: Rosa F. Mercado filed the instant administrative complaint against Atty. Julito D. Vitriolo, seeking his disbarment from the practice of law. The complainant alleged that respondent maliciously instituted a criminal case for falsification of public document against her, a former client, based on confidential information gained from their attorneyclient relationship. Let us first hearken to the facts. Complainant is a Senior Education Program Specialist of the Standards Development Division, Office of Programs and Standards while respondent is a Deputy Executive Director IV of the Commission on Higher Education (CHED). 1 Complainant's husband filed Civil Case No. 40537 entitled "Ruben G. Mercado v. Rosa C. Francisco," for annulment of their marriage with the Regional Trial Court (RTC) of Pasig City. This annulment case had been dismissed by the trial court, and the dismissal became final and executory on July 15, 1992.2 In August 1992, Atty. Anastacio P. de Leon, counsel of complainant, died. On February 7, 1994, respondent entered his appearance before the trial court as collaborating counsel for complainant. 3 On March 16, 1994, respondent filed his Notice of Substitution of Counsel,4 informing the RTC of Pasig City that he has been appointed as counsel for the complainant, in substitution of Atty. de Leon. It also appears that on April 13, 1999, respondent filed a criminal action against complainant before the Office of the City Prosecutor, Pasig City, entitled "Atty. Julito Vitriolo, et al. v. Rose Dela Cruz F. Mercado," and docketed as I.S. No. PSG 99-9823, for violation of Articles 171 and 172 (falsification of public document) of the Revised Penal Code.5 Respondent alleged that complainant made false entries in the Certificates of Live Birth of her children, Angelica and Katelyn Anne. More specifically, complainant allegedly indicated in said Certificates of Live Birth that she is married to a certain Ferdinand Fernandez, and that their marriage was solemnized on April 11, 1979, when in truth, she is legally married to Ruben G. Mercado and their marriage took place on April 11, 1978. Complainant denied the accusations of respondent against her. She denied using any other name than "Rosa F. Mercado." She also insisted that she has gotten married only once, on April 11, 1978, to Ruben G. Mercado. In addition, complainant Mercado cited other charges against respondent that are pending before or decided upon by other tribunals (1) libel suit before the Office of the City Prosecutor, Pasig City;6 (2) administrative case for dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, pursuit of private business, vocation or profession without the permission required by Civil Service rules and regulations, and violations of the "Anti-Graft and Corrupt Practices Act," before the then Presidential Commission Against Graft and Corruption;7 (3) complaint for dishonesty, grave misconduct, and conduct prejudicial to the best interest of the service before the Office of the Ombudsman, where he
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Our jurisprudence on the matter rests on quiescent ground. Thus, a compromise agreement prepared by a lawyer pursuant to the instruction of his client and delivered to the opposing party, 29 an offer and counter-offer for settlement,30 or a document given by a client to his counsel not in his professional capacity, 31 are not privileged communications, the element of confidentiality not being present. 32 (3) The legal advice must be sought from the attorney in his professional capacity.33 The communication made by a client to his attorney must not be intended for mere information, but for the purpose of seeking legal advice from his attorney as to his rights or obligations. The communication must have been transmitted by a client to his attorney for the purpose of seeking legal advice.34 If the client seeks an accounting service, 35 or business or personal assistance,36 and not legal advice, the privilege does not attach to a communication disclosed for such purpose. Applying all these rules to the case at bar, we hold that the evidence on record fails to substantiate complainant's allegations. We note that complainant did not even specify the alleged communication in confidence disclosed by respondent. All her claims were couched in general terms and lacked specificity. She contends that respondent violated the rule on privileged communication when he instituted a criminal action against her for falsification of public documents because the criminal complaint disclosed facts relating to the civil case for annulment then handled by respondent. She did not, however, spell out these facts which will determine the merit of her complaint. The Court cannot be involved in a guessing game as to the existence of facts which the complainant must prove. Indeed, complainant failed to attend the hearings at the IBP. Without any testimony from the complainant as to the specific confidential information allegedly divulged by respondent without her consent, it is difficult, if not impossible to determine if there was any violation of the rule on privileged communication. Such confidential information is a crucial link in establishing a breach of the rule on privileged communication between attorney and client. It is not enough to merely assert the attorney-client privilege.37 The burden of proving that the privilege applies is placed upon the party asserting the privilege.38 IN VIEW WHEREOF, the complaint against respondent Atty. Julito D. Vitriolo is hereby DISMISSED for lack of merit. SO ORDERED. ANGARA VS. SB GO TO CASES ON CONFLICT OF INTEREST EN BANC G.R. No. L-9231 January 6, 1915 CHICO, plaintiff-appellant, SOCIETY, LIMITED, ET
Beaumont and Tenney for Bruce, Lawrence, Ross and Block for appellees. TRENT, J.:
appellant.
An appeal from a judgment dismissing the complaint upon the merits, with costs. The plaintiff seeks to recover the face value of two insurance policies upon a stock of dry goods destroyed by fire. It appears that the father of the plaintiff died in 1897, at which time he was conducting a business under his own name, Uy Layco. The plaintiff and his brother took over the business and continued it under the same name, "Uy Layco." Sometime before the date of the fire, the plaintiff purchased his brother's interest in the business and continued to carry on the business under the father's name. At the time of the fire "Uy Layco" was heavily indebted and subsequent thereto the creditors of the estate of the plaintiff's father. During the course of these proceedings, the plaintiff's attorney surrendered the policies of insurance to the administrator of the estate, who compromised with the insurance company for one-half their face value, or P6,000. This money was
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It is manifest that the objection to the testimony of the plaintiff's attorney as to his authority to compromise was properly overruled. The testimony was to the effect that when the attorney delivered the policies to the administrator, he understood that there was a compromise to be effected, and that when he informed the plaintiff of the surrender of the policies for that purpose the plaintiff made no objection whatever. The evidence is sufficient to show that the plaintiff acquiesced in the compromise settlement of the policies. Having agreed to the compromise, he cannot now disavow it and maintain an action for the recovery of their face value. For the foregoing reasons the judgment appealed from is affirmed, with costs. So ordered. THIRD DIVISION A.C. No. 4078 July 14, 2003 GENATO, complainant,
In this complaint for disbarment filed by William Ong Genato against respondent Atty. Essex L. Silapan, complainant alleged that in July 1992, respondent asked if he could rent a small office space in complainant's building in Quezon City for his law practice. Complainant acceded and introduced respondent to Atty. Benjamin Dacanay, complainant's retained lawyer, who accommodated respondent in the building and made him handle some of complainant's cases. Hence, the start of the legal relationship between complainant and respondent. The conflict between the parties started when respondent borrowed two hundred thousand pesos (P200,000.00) from complainant which he intended to use as downpayment for the purchase of a new car. In return, respondent issued to complainant a postdated check in the amount of P176,528.00 to answer for the six (6) months interest on the loan. He likewise mortgaged to complainant his house and lot in Quezon City but did not surrender its title claiming that it was the subject of reconstitution proceedings before the Quezon City Register of Deeds. With the money borrowed from complainant, respondent purchased a new car. However, the document of sale of the car was issued in complainant's name and financed through City Trust Company. In January 1993, respondent introduced to complainant a certain Emmanuel Romero. Romero likewise wanted to borrow money from complainant. Complainant lent Romero the money and, from this transaction, respondent earned commission in the amount of P52,289.90. Complainant used the commission to pay respondent's arrears with the car financing firm. Subsequently, respondent failed to pay the amortization on the car and the financing firm sent demand letters to complainant. Complainant tried to encash respondent's postdated check with the drawee bank but it was dishonored as respondent's account therein was already closed. Respondent failed to heed complainant's repeated demands for payment. Complainant then filed a criminal case against respondent for violation of Batas Pambansa Blg. 22 and a civil case for judicial foreclosure of real estate mortgage. In the foreclosure case, respondent made the following allegation in his Answer: xxx xxx xxx
4. That complainant is a businessman who is engaged in the real estate business, trading and buy and sell of deficiency taxed imported cars, shark loans and other shady deals and has many cases pending in court; xxx xxx xxx
Complainant denied respondent's charges and claimed that respondent's allegation is libelous and not privilege as it
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Prefatorily, we stress that we shall not delve into the merits of the various criminal and civil cases pending between the parties. It is for the trial courts handling these cases to ascertain the truth or falsity of the allegations made therein. For this reason, it is not for us to sanction respondent for his issuance of a bouncing check. His liability has yet to be determined by the trial court where his case is pending. The only issue in this administrative case is whether respondent committed a breach of trust and confidence by imputing to complainant illegal practices and disclosing complainant's alleged intention to bribe government officials in connection with a pending case. Canon 17 of the Code of Professional Responsibility provides that a lawyer owes fidelity to the cause of his client and shall be mindful of the trust and confidence reposed on him. The long-established rule is that an attorney is not permitted to disclose communications made to him in his professional character by a client, unless the latter consents. This obligation to preserve the confidences and secrets of a client arises at the inception of their relationship. 3 The protection given to the client is perpetual and does not cease with the termination of the litigation, nor is it affected by the party's ceasing to employ the attorney and retaining another, or by any other change of relation between them. It even survives the death of the client. 4 It must be stressed, however, that the privilege against disclosure of confidential communications or information is limited only to communications which are legitimately and properly within the scope of a lawful employment of a lawyer. It does not extend to those made in contemplation of a crime or perpetration of a fraud. 5 If the unlawful purpose is avowed, as in this case, the complainant's alleged intention to bribe government officials in relation to his case, the communication is not covered by the privilege as the client does not consult the lawyer professionally. It is not within the profession of a lawyer to advise a client as to how he may commit a crime as a lawyer is not a gun for hire. Thus, the attorney-client privilege does not attach, there being no professional employment in the strict sense. Be that as it may, respondent's explanation that it was necessary for him to make the disclosures in his pleadings fails to satisfy us. The disclosures were not indispensable to protect his rights as they were not pertinent to the foreclosure case. It was improper for the respondent to use it against the complainant in the foreclosure case as it was not the subject matter of litigation therein and respondent's professional competence and legal advice were not being attacked in said case. A lawyer must conduct himself, especially in his dealings with his clients, with integrity in a manner that is beyond reproach. His relationship with his clients should be characterized by the highest degree of good faith and fairness. Thus, the Court agrees with the evaluation of the IBP and finds that respondent's allegations and disclosures in the foreclosure case amount to a breach of fidelity sufficient to warrant the imposition of disciplinary sanction against him. However, the recommended penalty of one (1) year suspension of respondent from the practice of law seems to be disproportionate to his breach of duty considering that a review of the records of this Court reveals that this is the first administrative complaint against him. IN VIEW WHEREOF, respondent Atty. Essex L. Silapan is ordered suspended from the practice of law for a period of six (6) months effective upon receipt of this Decision. Let a copy of this Decision be furnished the Office of the Bar Confidant and the Integrated Bar of the Philippines. The Court Administrator is directed to circulate this order of suspension to all courts in the country. SO ORDERED. SECOND DIVISION ADM. CASE No. 4426 February 17, 2000
RAMON SAURA, JR., complainant, vs. ATTY. LALAINE LILIBETH AGDEPPA, respondent. x-----------------------------x ADM. CASE No. 4429 February 17, 2000
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First. The respondent was given notice on various occasions but she chose to ignore them and failed to exercise her right to be heard.
Sec. 30. Attorney to be heard before removal or suspension. No attorney shall be removed or suspended from the practice of his profession, until he has full opportunity upon reasonable notice to answer the charges against him, to produce witness in his behalf, and to be heard by himself or counsel. But if upon reasonable notice he fails to appear and answer the accusations, the court may proceed to determine the matter ex parte. Since respondent repeatedly ignored the notices sent to her by this Court, we cannot be expected to wait indefinitely for her answer. While respondent may have changed her address and did not, thus, receive the previous notices, still, on March 2, 1998, she came to know of the Supreme Court Resolution dated June 19, 1995. 5 The prudent thing for her to do was to file an answer immediately and not to delay the matter any further. Sadly, the respondent ignored the Resolution6 of the Supreme Court ordering her to file an answer. Second. The request for the information regarding the sale of the property and to account for the proceeds is not a violation of the attorney-client privilege. Rule 130, Section 24 (b) of the Rules of Court provides: Sec. 24. Disqualification by reason of privileged communication. The following persons cannot testify as to matters learned in confidence in the following cases: xxx xxx xxx
(b) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity. The information requested by petitioners is not privileged. The petitioners are only asking for the disclosure of the amount of the sale or account for the proceeds. Petitioners certainly have the right to ask for such information since they own the property as co-heirs of the late Ramon E. Saura and as co-administrators of the property. Hence, respondent cannot refuse to divulge such information to them and hide behind the cloak of the attorney-client relationship. WHEREFORE, for the refusal of Atty. Lalaine Lilibeth Agdeppa to comply with our Resolutions dated June 7 and 19, 1995 directing her to file an answer to the petitions. the Court hereby penalizes her with a FINE of two thousand pesos (P2,000.00) which. should be paid within ten (10) days from receipt hereof; otherwise, a penalty of imprisonment for five (5) days shall be imposed. This resolution shall be immediately executory. SO ORDERED. EN BANC
A.C. No. 2597 March 12, 1998 GLORITO V. MATURAN, petitioner, vs. ATTY. CONRADO S. GONZALES, respondent. RESOLUTION
ROMERO, J.: A complaint for disbarment was filed with this Court on October 25, 1983, by Glorito V. Maturan against his counsel, Atty. Conrado S.
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The reason for the prohibition is found in the relation of attorney and client, which is one of trust and confidence of the highest degree. A lawyer becomes familiar with all the facts connected with his client's case. He learns from his client the weak points of the action as well as the strong ones. Such knowledge must be considered sacred and guarded with care. No opportunity must be given him to take advantage of the client's secrets. A lawyer must have the fullest confidence of his client. For if the confidence is abused, the profession will suffer by the loss thereof. 2 This Court finds respondent's actuations violative of Canon 6 of the Canons of Professional Ethics which provide in part: It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose. Moreover, respondent's justification for his actions reveal a patent ignorance of the fiduciary obligations which a lawyer owes to his client. A lawyer-client relationship is not terminated by the filing of a motion for a writ of execution. His acceptance of a case implies that he will prosecute the case to its conclusion. He may not be permitted to unilaterally terminate the same to the prejudice of his client. As to the recommendation that the term of suspension be reduced from three years to one year, we find the same to be unwarranted. In similar cases decided by the Supreme Court, the penalty of two or three years suspension has been imposed where respondent was found guilty of representing conflicting interests. In Vda. De Alisbo vs.Jalandoon, Sr., 3 the respondent, who appeared for complainant in a case for revival of judgment, even though he had been the counsel of the adverse party in the case sought to be revived, was suspended for a period of two years. In Bautista vs. Barrios, 4 a suspension of two years was imposed on respondent Barrios, who had drafted a deed of partition for petitioner, but who appeared for the other party therein, when the same was sought to be enforced by petitioner. In PNB vs. Cedo, 5 the Court even suspended the respondent therein for three years, but only because respondent not only represented conflicting interests, but also deliberately intended to attract clients with interests adverse to his former employer. Finally, in Natan vs. Capule, 6 respondent was suspended for two years after he accepted professional employment in the very case in which his former client was the adverse party. ACCORDINGLY, this Court resolves to MODIFY the IBP recommendation to suspend respondent for one year and modifies it to SUSPENSION from the practice of law for TWO (2) YEARS, effective immediately. SO ORDERED. EN BANC
G.R. Nos. 115439-41 July 16, 1997 PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE SANDIGANBAYAN, MANSUETO V. HONRADA, CEFERINO S. PAREDES, JR. and GENEROSO S. SANSAET, respondents.
REGALADO, J.: Through the special civil action for certiorari at bar, petitioner seeks the annulment of the resolution of respondent Sandiganbayan, promulgated on December 22, 1993, which denied petitioner's motion for the discharge of respondent Generoso S. Sansaet to be utilized as a state witness, and its resolution of March 7, 1994 denying the motion for reconsideration of its preceding disposition. 1 The records show that during the dates material to this case, respondent Honrada was the Clerk of Court and Acting Stenographer of the First Municipal Circuit Trial Court, San Francisco-BunawanRosario in Agusan del Sur. Respondent Paredes was successively the Provincial Attorney of Agusan del Sur, then Governor of the same
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case; and a certification of Presiding Judge Ciriaco Ario that said perjury case in his court did not reach the arraignment stage since action thereon was suspended pending the review of the case by the Department of Justice. 14 Respondents filed their respective counter-affidavits, but Sansaet subsequently discarded and repudiated the submissions he had made in his counter-affidavit. In a so-called Affidavit of Explanations and Rectifications, 15respondent Sansaet revealed that Paredes contrived to have the graft case under preliminary investigation dismissed on the ground of double jeopardy by making it appear that the perjury case had been dismissed by the trial court after he had been arraigned therein. For that purpose, the documents which were later filed by respondent Sansaet in the preliminary investigation were prepared and falsified by his co-respondents in this case in the house of respondent Paredes. To evade responsibility for his own participation in the scheme, he claimed that he did so upon the instigation and inducement of respondent Paredes. This was intended to pave the way for his discharge as a government witness in the consolidated cases, as in fact a motion therefor was filed by the prosecution pursuant to their agreement. Withal, in a resolution 16 dated February 24, 1992, the Ombudsman approved the filing of falsification charges against all the herein private respondents. The proposal for the discharge of respondent Sansaet as a state witness was rejected by the Ombudsman on this evaluative legal position: . . . Taking his explanation, it is difficult to believe that a lawyer of his stature, in the absence of deliberate intent to conspire, would be unwittingly induced by another to commit a crime. As counsel for the accused in those criminal cases, Atty. Sansaet had control over the case theory and the evidence which the defense was going to present. Moreover, the testimony or confession of Atty. Sansaet falls under the mantle of privileged communication between the lawyer and his client which may be objected to, if presented in the trial. The Ombudsman refused to reconsider that resolution 17 and, ostensibly to forestall any further controversy, he decided to file separate informations for falsification of public documents against each of the herein respondents. Thus, three criminal cases, 18 each of which named one of the three private respondents here as the accused therein, were filed in the graft court. However, the same were consolidated for joint trial in the Second Division of the Sandiganbayan. As stated at the outset, a motion was filed by the People on July 27, 1993 for the discharge of respondent Sansaet as a state witness. It was submitted that all the requisites therefor, as provided in Section 9, Rule 119 of the Rules of Court, were satisfied insofar as respondent Sansaet was concerned. The basic postulate was that, except for the eyewitness testimony of respondent Sansaet, there was no other direct evidence to prove the confabulated falsification of documents by respondents Honrada and Paredes. Unfortunately for the prosecution, respondent Sandiganbayan, hewing to the theory of the attorney-client privilege adverted to by the Ombudsman and invoked by the two other private respondents in their opposition to the prosecution's motion, resolved to deny the desired discharge on this ratiocination: From the evidence adduced, the opposition was able to establish that client and lawyer relationship existed between Atty. Sansaet and Ceferino Paredes, Jr., before, during and after the period alleged in the information. In view of such relationship, the facts surrounding the case, and other confidential matter must have been disclosed by accused Paredes, as client, to accused Sansaet, as his lawyer in his professional capacity. Therefore, the testimony of Atty. Sansaet on the facts surrounding the offense charged in the information is privileged. 19 Reconsideration of said resolution having been likewise denied, 20 the controversy was elevated to this Court by the prosecution in an original action for the issuance of the extraordinary writ of certiorari against respondent Sandiganbayan.
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Statements and communications regarding the commission of a crime already committed, made by a party who committed it, to an attorney, consulted as such, are privileged communications. Contrarily, the unbroken stream of judicial dicta is to the effect that communications between attorney and client having to do with the client'scontemplated criminal acts, or in aid or furtherance thereof, are not covered by the cloak of privileges ordinarily existing in reference to communications between attorney and client. 25 (Emphases supplied.) 3. In the present cases, the testimony sought to be elicited from Sansate as state witness are the communications made to him by physical acts and/or accompanying words of Parades at the time he and Honrada, either with the active or passive participation of Sansaet, were about to falsify, or in the process of falsifying, the documents which were later filed in the Tanodbayan by Sansaet and culminated in the criminal charges now pending in respondent Sandiganbayan. Clearly, therefore, the confidential communications thus made by Paredes to Sansaet were for purposes of and in reference to the crime of falsification which had not yet been committed in the past by Paredes but which he, in confederacy with his present co-respondents, later committed. Having been made for purposes of a future offense, those communications are outside the pale of the attorney-client privilege. 4. Furthermore, Sansaet was himself a conspirator in the commission of that crime of falsification which he, Paredes and Honrada concocted and foisted upon the authorities. It is well settled that in order that a communication between a lawyer and his client may be privileged, it must be for a lawful purpose or in furtherance of a lawful end. The existence of an unlawful purpose prevents the privilege from attaching. 26 In fact, it has also been pointed out to the Court that the "prosecution of the honorable relation of attorney and client will not be permitted under the guise of privilege, and every communication made to an attorney by a client for a criminal purpose is a conspiracy or attempt at a conspiracy which is not only lawful to divulge, but which the attorney under certain circumstances may be bound to disclose at once in the interest of justice." 27 It is evident, therefore, that it was error for respondent Sandiganbayan to insist that such unlawful communications intended for an illegal purpose contrived by conspirators are nonetheless covered by the so-called mantle of privilege. To prevent a conniving counsel from revealing the genesis of a crime which was later committed pursuant to a conspiracy, because of the objection thereto of his conspiring client, would be one of the worst travesties in the rules of evidence and practice in the noble profession of law. II On the foregoing premises, we now proceed to the consequential inquiry as to whether respondent Sansaet qualifies, as a particeps criminis, for discharge from the criminal prosecution in order to testify for the State. Parenthetically, respondent court, having arrived at a contrary conclusion on the preceding issue, did not pass upon this second aspect and the relief sought by the prosecution which are now submitted for our resolution in the petition at bar. We shall, however, first dispose likewise of some ancillary questions requiring preludial clarification. 1. The fact that respondent Sandiganbayan did not fully pass upon the query as to whether or not respondent Sansaet was qualified to be a state witness need not prevent this Court from resolving that issue as prayed for by petitioner. Where the determinative facts and evidence have been submitted to this Court such that it is in a position to finally resolve the dispute, it will be in the pursuance of the ends of justice and the expeditious administration thereof to resolve the case on the merits, instead of remanding it to the trial court. 28 2. A reservation is raised over the fact that the three private respondents here stand charged in three separate informations. It will be recalled that in its resolution of February 24, 1992, the Ombudsman recommended the filing of criminal charges for falsification of public documents against all the respondents herein. That resolution was affirmed but, reportedly in order to obviate further controversy, one information was filed against each of the three respondents here, resulting in three informations for the same acts of falsification. This technicality was, however, sufficiently explained away during the deliberations in this case by the following discussion thereof by Mr. Justice Davide, to wit:
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compared to those of his co-accused, and not merely the fact that in law the same or equal penalty is imposable on all of them. Eventually, what was just somehow assumed but not explicity articulated found expression in People vs. Ocimar, et al., 36 which we quote in extenso: Ocimar contends that in the case at bar Bermudez does not satisfy the conditions for the discharge of a co-accused to become a state witness. He argues that no accused in a conspiracy can lawfully be discharged and utilized as a state witness, for not one of them could satisfy the requisite of appearing not to be the most guilty. Appellant asserts that since accused Bermudez was part of the conspiracy, he is equally guilty as the others. We do not agree. First, there is absolute necessity for the testimony of Bermudez. For, despite the presentation of four (4) other witnesses, none of them could positively identify the accused except Bermudez who was one of those who pulled the highway heist which resulted not only in the loss of cash, jewelry and other valuables, but even the life of Capt. Caeba, Jr. It was in fact the testimony of Bermudez that clinched the case for the prosecution. Second, without his testimony, no other direct evidence was available for the prosecution to prove the elements of the crime. Third, his testimony could be, as indeed it was, substantially corroborated in its material points as indicated by the trial court in its well-reasoned decision. Fourth, he does not appear to be the most guilty . As the evidence reveals, he was only invited to a drinking party without having any prior knowledge of the plot to stage a highway robbery. But even assuming that he later became part of the conspiracy, he does not appear to be the most guilty. What the law prohibits is that the most guilty will be set free while his co-accused who are less guilty will be sent to jail. And by "most guilty" we mean the highest degree of culpability in terms of participation in the commission of the offense and not necessarily the severity of the penalty imposed . While all the accused may be given the same penalty by reason of conspiracy, yet one may be considered least guilty if We take into account his degree of participation in the perpetration of the offense. Fifth, there is no evidence that he has at any time been convicted of any offense involving moral turpitude. xxx xxx xxx Thus, We agree with the observations of the Solicitor General that the rule on the discharge of an accused to be utilized as state witness clearly looks at his actual and individual participation in the commission of the crime, which may or may not have been perpetrated in conspiracy with the other accused. Since Bermudez was not individually responsible for the killing committed on the occasion of the robbery except by reason of conspiracy, it cannot be said then that Bermudez appears to be the most guilty. Hence, his discharge to be a witness for the government is clearly warranted. (Emphasis ours.) The rule of equality in the penalty to be imposed upon conspirators found guilty of a criminal offense is based on the concurrence of criminal intent in their minds and translated into concerted physical action although of varying acts or degrees of depravity. Since the Revised Penal Code is based on the classical school of thought, it is the identity of the mens rea which is considered the predominant consideration and, therefore, warrants the imposition of the same penalty on the consequential theory that the act of one is thereby the act of all. Also, this is an affair of substantive law which should not be equated with the procedural rule on the discharge of particeps criminis. This adjective device is based on other considerations, such as the need for giving immunity to one of them in order that not all shall escape, and the judicial experience that the candid admission of an accused regarding his participation is a guaranty that he will testify truthfully. For those reasons, the Rules provide for certain qualifying criteria which, again, are based on judicial experience distilled into a judgmental policy. III The Court is reasonably convinced, and so holds, that the other requisites for the discharge of respondent Sansaet as a state witness
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