PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
ELEGIO carnal knowledge with his daughter, OLEBY NADERA, twelve
NADERA, JR. Y SADSAD, accused-appellant.
DECISION
These cases are before us on automatic review of the decision
of the Regional Trial Court, Branch 40, Calapan, Oriental
Mindoro, finding accused-appellant Elegio Nadera, Jr. guilty of
four counts of rape of his minor daughters, Oleby and
Maricris Nadera, and sentencing him to suffer the penalty
of reclusion perpetua for one count of rape and death for
each of the remaining three counts. Accused-appellant was
also ordered to indemnify complainants Oleby Nadera in the
amount of P150,000.00 and Maricris Nadera in the amount of
P50,000.00, without subsidiary imprisonment in case of
insolvency. MENDOZAJ
Reversal of the decision is sought on the sole ground that -
THE TRIAL COURT GRAVELY ERRED IN ACCEPTING ACCUSED-
APPELLANT'S IMPROVIDENT PLEA OF GUILTY TO A CAPITAL
OFFENSE AND IN FAILING TO CONDUCT A SEARCHING
INQUIRY TO DETERMINE WHETHER THE ACCUSED FULLY
UNDERSTOOD THE CONSEQUENCE OF HIS PLEA.[1]
The facts are as follows:
Accused-appellant Elegio Nadera, Jr. has four children by his
wife Daisy, namely: Oleby, born on October 2, 1982; Maricris,
born on March 16, 1984; March Anthony, born on January 8,
1986; and Sherilyn, born on September 27, 1987.[2]
On September 22, 1991, Daisy left for a job in Bahrain, and
came home to the Philippines for vacation only in July 1993.
She then left again for Bahrain in September 1993 and did not
return until September 12, 1995.[3]
On April 28, 1996, Oleby and Maricris, assisted by a neighbor,
Lita Macalalad, told their mother that they had been raped by
their father, herein accused-appellant. Thereupon, they went
to the police authorities of Naujan and filed a complaint
against accused-appellant.[4]
After preliminary examination, on June 6, 1996, four
informations charging accused-appellant with rape on various
dates were filed in the Regional Trial Court, Calapan, Oriental
Mindoro.
[5]
In Criminal Case No. C-4982, the information alleged-
That on or about the 17th day of May, 1992, at around 10:00
o'clock in the evening, at Barangay Bayani, Municipality of
Naujan, Province of Oriental Mindoro, Philippines and within
the jurisdiction of this Honorable Court, the above-named
accused, motivated by lust and lewd design, and by means of
force and intimidation, wilfully, unlawfully and feloniously did
lie and succeeded in having carnal knowledge with his
daughter, OLEBY NADERA, nine (9) years of age at that time
against the latter's will and consent.
In Criminal Case No. C-4983, the information[6] charged -
That on or about the 17th day of April, 1995 at Barangay
Bayani, Municipality of Naujan, Province of Oriental Mindoro,
Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, motivated by lust and lewd
design, and by means of force and intimidation, wilfully, and
unlawfully and feloniously did lie and succeeded in having
(12) years of age at that time against the latter's will and
consent.
In Criminal Case No. C-4984, the information[7] stated-
That on or about the 24th day of April, 1995, sometime in the
evening, at Barangay Bayani, Municipality of Naujan, Province
of Oriental Mindoro, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, motivated
by lust and lewd design, and by means of force and
intimidation, wilfully, unlawfully and feloniously did lie and
succeeded in having carnal knowledge with his daughter,
OLEBY NADERA, twelve (12) years of age at that time against
the latter's will and consent.
In Criminal Case No. C-4985, the information[8] recited -
That on or about the 3rd day of March 1996 at around 8:00
o'clock in the evening, at Barangay Bayani, Municipality of
Naujan, Province of Oriental Mindoro, Philippines and within
the jurisdiction of this Honorable Court, the above-named
accused, motivated by lust and lewd design, and by means of
force and intimidation, wilfully, unlawfully and feloniously did
lie and succeeded in having carnal knowledge with his
daughter, MARICRIS NADERA, eleven (11) years of age against
the latter's will and consent.
The record shows that at his arraignment on July 23, 1996,
accused-appellant, assisted by Atty. Manolo A. Brotonel of the
Public Attorney's Office, pleaded not guilty to the charges
filed against him.[9] However, on August 5, 1997, after the
prosecution had presented Dr. Cynthia S. Fesalbon, accused-
appellant pleaded guilty to the crime charged in all the
informations.
The prosecution presented four witnesses, namely: Dr.
Cynthia Fesalbon, Oleby Nadera, Maricris Nadera, and Daisy
Nadera.
Dr. Cynthia S. Fesalbon, Medical Officer IV of the Oriental
Mindoro Provincial Hospital, who conducted the medical
examination of both complainants, submitted a report on the
result of Oleby Nadera's examination as follows: [10]
PHYSICAL EXAMINATION:
- No sign of external physical injuries as of time of
examination.
- Breast developed
- Abdomen: flat, soft non-tender.
EXTERNAL GENITALIA
- Minimal pubic hair
- Healed incomplete hymenal lacerations at 5, 7, 12 o'clock
positions.
- No bleeding.
INTERNAL SPECULUM EXAMINATION
- Vagina admits 2 fingers with ease.
- Cervix small, firm, close non-tender (-) bleeding.
- Uterus not enlarged.
- Adnexae negative
LABORATORY EXAMINATION:
- Smear for the presence of spermatozoa revealed positive
result.
She testified that the hymenal lacerations may have been
caused by the insertion of a hard object, the patient's history
of genitalic insertions, a straddle injury, or sitting on hard
wood. She could not determine when these lacerations were
sustained because they had healed over a period beyond
seven days.[11]
Dr. Fesalbon likewise rendered a report[12] on the medical
examination of Maricris Nadera, the pertinent parts of which
state:
PHYSICAL EXAMINATION:
- No sign of external physical injuries as of time of
examination.
- Abdomen, flat, soft.
EXTERNAL GENITALIA:
- Absence of pubic hair healed hymenal lacerations,
incomplete at 1, 5, 8, 11 o'clock positions.
INTERNAL EXAMINATION:
- Vagina admits 1 finger with ease.
- Cervix small (-) bleeding
- Uterus not enlarged.
-Adnexae (-).
LABORATORY EXAMINATION
- Smear for the presence of spermatozoa revealed Negative
result.
In the case of Maricris Nadera, Dr. Fesalbon explained that the
hymenal lacerations could have been caused by penetration
such as through instrumentation or insertion of an object
inside the vagina. They could also have been caused by the
penetration of the penis. Upon inquiry from the court, Dr.
Fesalbon stated that the fact that Maricris had more hymenal
lacerations than Oleby could be due to the difference in the
impact of penetration. She added that the number of times
each of the girls had sexual intercourse could not be
ascertained merely from the hymenal lacerations, although it
could be concluded that an object had been inserted in the
vagina.[13]
Oleby Nadera testified about the rapes committed by her
father against her as follows:
On May 17, 1992, at around 10 o'clock in the evening, while
Daisy was away working as a domestic helper in Bahrain,
accused- appellant pulled Oleby, then nine years of age,
towards a bed, removed her panties and shorts and ordered
her to keep quiet. He then placed himself on top of her and
inserted his penis into her vagina. He proceeded to make an
up and down motion while on top of his daughter. All the
while, Oleby was crying, pleading with her father, "Huwag
po!", "Huwag po!" Accused-appellant again ordered Oleby to
keep quiet lest her brother and sisters were awakened.
Afterwards, accused-appellant told Oleby to put on her
panties and shorts and to go to sleep. Oleby went to the bed
where her brother and sisters were sleeping and cried.
On another occasion, on April 17, 1995, accused-appellant
sent Sherilyn and Maricris to the sari-sari store while he asked
March Anthony to gather firewood. While Oleby was left
alone inside their house in Barangay Bayani, Naujan, Oriental
Mindoro, accused-appellant again raped her. Oleby was 12
years old at that time. Accused-appellant closed the door and
windows, removed Oleby's panties and shorts and sat down.
While sitting down, accused-appellant placed Oleby's legs on
his thighs and inserted his penis into her vagina. Later on, he
told Oleby to put on her panties and shorts and told her to
fetch her brother and sisters.
Oleby was raped by her father for the third time on April 24,
1995. That evening, she woke up to find her father on top of
her, taking off her shorts and panties and inserting his penis
into her vagina. As her father was taking off her clothes, Oleby
cried and pleaded, "Huwag po! Huwag po!" Instead of
desisting, accused-appellant told her to keep quiet so as not
to awaken her brother and sisters, and threatened her with
harm if she made any noise. Accused-appellant then made a
pumping motion, consummating the sexual act with his
daughter.[14]
After Oleby's direct examination had been finished, Atty.
Brotonel, accused-appellant's counsel, did not conduct any
cross examination on the ground that he was convinced Oleby
was telling the truth.[15]
On that same day, Maricris also testified. She related how she
was raped by her father on March 3, 1996, the year before,
when she was 11 years old. At about eight o'clock in the
evening of said date, while her brother and sisters were
sleeping, she was pulled by her father towards his bed and
told to lie down. Accused-appellant then placed himself on
top of Maricris and inserted his penis into her vagina. Maricris
pleaded "Papa, huwag po, maawa naman kayo sa
amin." Ignoring his daughter's pleas, accused-appellant
continued raping her by making a pumping motion and
threatened to kill all of them if she cried. Accused-appellant
afterwards asked Maricris to put on her shorts and panties
and return to bed. He told Maricris not to cry so as not to
awaken her siblings. She did not tell anyone what befell her
because she was afraid. A neighbor, named Lita Macalalad,
asked her if Oleby had been raped by their father. It turned
out Oleby had told her ordeal to Lita Macalalad while they
were washing clothes and talking about Oleby's parents.
Oleby also told Lita Macalalad that Maricris had been raped
by their father as well, a fact related to Oleby by Maricris. [16]
Daisy Nadera, accused-appellant's wife, also testified for the
prosecution. Her testimony focused on the dates of births of
her children and the fact that she was out of the country
when the alleged rapes occurred. She testified that she and
her daughters filed a complaint for rape against accused-
appellant after discovering his hideous acts. Thereafter, her
children were subjected to a medical examination.[17]
On August 12, 1997, the prosecution formally offered its
documentary evidence and rested its case thereafter.
Accused-appellant did not present any evidence in his
defense.
On August 27, 1997, the trial court rendered judgment finding
accused-appellant guilty of four counts of rape against his
daughters. The dispositive portion of its decision[18] reads:
ACCORDINGLY, the Court finds accused Elegio Nadera, Jr.,
guilty beyond reasonable doubt, as principal, of the crime of
Rape [4 counts] with the qualifying circumstance that the
victims are under 18 years of age and the offender is a parent.
He is hereby sentenced to suffer the penalty ofReclusion
Perpetua ranging from 20 years and 1 day to 40 years for the
rape committed on May 17, 1992 and three DEATH
PENALTIES for the rape committed on April 17 and 24, 1995
and March 3, 1996, together with the accessory penalties
provided by law. He is also ordered to indemnify victim Oleby
Nadera the total amount of P150,000.00 in Criminal Case Nos.
C-4982, C-4983 and C-4984 and Maricris Nadera, the amount
of P50,000.00 in Criminal Case No. C-4985, without subsidiary
imprisonment in case of insolvency, and to pay the costs.
S OO R D E R E D.
As already stated, accused-appellant's lone assignment of
error is that the trial court accepted his plea of guilty to a
capital offense without making a searching inquiry to
determine whether he understood the consequences of his
plea. In support of his contention, accused-appellant invokes
the ruling in the case of People v. Dayot[19] in which this Court
ruled that, in criminal cases, the judge must be convinced that
the accused, in pleading guilty, is truly guilty. This could be
done by requiring him to narrate the events leading to the
crime, making him reenact it, or asking him to supply missing
details. The judge must satisfy himself that: (1) the accused is
voluntarily pleading guilty, and (2) he is truly guilty and there
is a rational basis for a finding of guilt based on his testimony.
We find merit in accused-appellant's allegations. In addition,
we find that there was inadequate representation of his case
in court, thus necessitating the remand of this case for further
proceedings.
I.
Rule 116 of the Rules on Criminal Procedure provides:
SEC. 3. Plea of guilty to capital offense; reception of evidence.-
When the accused pleads guilty to a capital offense, the court
shall conduct a searching inquiry into the voluntariness and
full comprehension of the consequences of his plea and
require the prosecution to prove his guilt and the precise
degree of culpability. The accused may also present evidence
on his behalf.
Under this Rule, three things are enjoined upon the trial court
when a plea of guilty to a capital offense is entered: (1) the
court must conduct a searching inquiry into the voluntariness
of the plea and the accused's full comprehension of the
consequences thereof; (2) the court must require the
prosecution to present evidence to prove the guilt of the
accused and the precise degree of his culpability; and, (3) the
court must ask the accused if he desires to present evidence
on his behalf and allow him to do so if he desires.[20]
What constitutes a searching inquiry, as explained in People v.
Alicando,[21] is that the plea of guilt must be based on a free
and informed judgment. Hence, a searching inquiry must
focus on: (1) the voluntariness of the plea, and (2) the full
comprehension of the consequences of the plea.
In the case at bar, the record does not show what exactly
transpired at the re-arraignment of accused-appellant, for
what reason he changed his plea from "not guilty" to "guilty,"
and whether he fully understood the consequences of his
guilty plea. The only indication in the record that accused-
appellant changed his plea to guilty is the Certificates of Re-
Arraignment, dated August 5, 1997, in Criminal Case Nos. C-
4982 to C-4985.[22] On what exactly accused-appellant said in
entering his plea of guilty and what exactly he had been told
by the trial judge, the records shed no light. There is thus no
evidence to show that accused-appellant's guilty plea was
voluntarily made or that he had fully understood the
consequences of such plea.
In its decision, the trial court described the manner in which
the accused pleaded guilty, thus:
Upon arraignment, accused, assisted by Atty. Manolo A.
Brotonel of the Public Attorney's Office, pleaded not guilty to
the crime charged. However, on August 5, 1997, when these
cases were called for pre-trial and trial, counsel for the
accused manifested that the accused, realizing the futility of
entering into trial and considering that he actually committed
the acts complained of, intimated his intention to enter a plea
of guilty to the above- mentioned charges. The accused was
then asked by this Court if he was aware of the consequences
of a plea of guilty to a capital offense: that for the rape he
committed on May 17, 1992 against his daughter, Oleby
Nadera, who was 9 years old at the time, he would be
sentenced to reclusion perpetua and for the three other
counts of rape committed on April 17 and 24, 1995 [both
against Oleby Nadera] and on March 3, 1996 [against Maricris
Nadera, 11 years old at the time], he would be sentenced to
death by lethal injection. After having been informed of this,
he insisted that he is willing to enter a plea of guilty to the
crimes charged and is ready to face the consequences
thereof.[23]
The warnings given by the trial court in this case fall short of
the requirement that it must make a searching inquiry to
determine whether accused-appellant understood fully the
import of his guilty plea. As has been said, a mere warning
that the accused faces the supreme penalty of death is
insufficient.[24] For more often than not, an accused pleads
guilty upon bad advice or because he hopes for a lenient
treatment or a lighter penalty. The trial judge must erase such
mistaken impressions.[25] He must be completely convinced
that the guilty plea made by the accused was not made under
duress or promise of reward. The judge must ask the accused
the manner the latter was arrested or detained, and whether
he was assisted by counsel during the custodial and
preliminary investigations. In addition, the defense counsel
should also be asked whether he conferred with the accused
and completely explained to him the meaning and the
consequences of a plea of guilt. Furthermore, since the age,
educational attainment and socio-economic status of the
accused may reveal insights for a proper verdict in the case,
the trial court must ask questions concerning them. [26] In this
case, absent any showing that these questions were put to
accused-appellant, a searching inquiry cannot be said to have
been undertaken by the trial court.
What the trial court did in this case, as described in its
decision, is similar to what happened in People v. Sevilleno.
[27]
In that case, the accused was charged with the rape and
homicide of a nine-year old girl. The accused pleaded guilty
whereupon the judge asked him questions: (1) Do you
understand your plea of guilt? and (2) Do you know that your
plea of guilt could bring the death penalty? This Court held
that these questions did not constitute a searching inquiry.
. . . In every case where the accused enters a plea of guilty to
a capital offense, especially where he is an ignorant person
with little or no education, the proper and prudent course to
follow is to take such evidence as are available and necessary
in support of the material allegations of the information,
including the aggravating circumstances therein enumerated,
not only to satisfy the trial judge himself but also to aid the
Supreme Court in determining whether the accused really
and truly understood and comprehended the meaning, full
significance and consequences of his plea.[28]
Clearly, the plea of guilty of accused-appellant in this case was
made improvidently.
II.
Convictions based on an improvident plea of guilt are set
aside only if such plea is the sole basis of the judgment. If the
trial court relied on sufficient and credible evidence to convict
the accused, the conviction must be sustained, because then
it is predicated not merely on the guilty plea of the accused
but on evidence proving his commission of the offense
charged.[29]
As already stated, the prosecution evidence consisted of the
testimonies of Oleby and Maricris Nadera, the results of their
medical examinations, and the testimonies of their mother,
Daisy, and the physician who conducted the medical
examination of the two girls, Dr. Cynthia Fesalbon. Certain
circumstances present in this case, however, persuade us that
a remand of this case is necessary.
First. A perusal of the decision of the court reveals that the
trial judge failed to state the factual and legal reasons on
which he based accused-appellant's conviction. Except for the
narration of the prosecution's evidence and a bare recital of
R.A. No.7659, amending Art. 335 of the Revised Penal Code,
there is nothing else to indicate the reason for the decision.
There is no evaluation of the evidence and no reason given
why the court found the testimonies of the witnesses
credible. Rule 120 of the 1985 Rules on Criminal Procedure
provides:
Sec. 2. Form and contents of judgment.- The judgment must
be written in the official language, personally and directly
prepared by the judge and signed by him and shall contain
clearly and distinctly a statement of the facts proved or
admitted by the accused and the law upon which the
judgment is based.
If it is of conviction, the judgment shall state (a) the legal
qualification of the offense constituted by the acts committed
by the accused, and the aggravating or mitigating
circumstances attending the commission thereof, if there be
any; (b) participation of the accused in the commission of the
offense, whether as principal, accomplice, or accessory after
the fact; (c) the penalty imposed upon the accused; and (d)
the civil liability or damages caused by the wrongful act to be
recovered from the accused by the offended party, if there be
any, unless the enforcement of the civil liability by a separate
action has been reserved or waived.
In case of acquittal, unless there is a clear showing that the
act from which the civil liability might arise did not exist, the
judgment shall make a finding on the civil liability of the
accused in favor of the offended party.
In People v. Bugarin,[30] we stated:
The requirement that the decisions of courts must be in
writing and that they must set forth clearly and distinctly the
facts and the law on which they are based serves many
functions. It is intended, among other things, to inform the
parties of the reason or reasons for the decision so that if any
of them appeals, he can point out to the appellate court the
finding of facts or the rulings on points of law with which he
disagrees. More than that, the requirement is an assurance to
the parties that, in reaching judgment, the judge did so
through the processes of legal reasoning. It is, thus, a
safeguard against the impetuosity of the judge, preventing
him from deciding by ipse dixit. Vouchsafed neither the sword
nor the purse by the Constitution but nonetheless vested with
the sovereign prerogative of passing judgment on the life,
liberty or property of his fellowmen, the judge must
ultimately depend on the power of reason for sustained
public confidence in the justness of his decision. The decision
of the trial court in this case disrespects the judicial function.
Second. The cavalier attitude of accused-appellant's counsel,
Atty. Manolo A. Brotonel of the Public Attorney's Office,
cannot go unnoticed. It is discernible in (a) his refusal to cross
examine Oleby Nadera; (b) the manner in which he conducted
Maricris Nadera's cross examination; and, (c) his failure not
only to present evidence for the accused but also to inform
the accused of his right to do so, if he desires.
Only faithful performance by counsel of his duty towards his
client can give meaning and substance to the accused's right
to due process and to be presumed innocent until proven
otherwise. Hence, a lawyer's duty, especially that of a defense
counsel, must not be taken lightly. It must be performed with
all the zeal and vigor at his command to protect and
safeguard the accused's fundamental rights.
In the case of People vs. Bermas,[31] no less than three PAO
lawyers were found by the Court to have failed in performing
their duties to their client, an accused charged with raping his
daughter. The first lawyer inexplicably waived the cross
examination of the private complainant and later asked to be
relieved of her duties as counsel de oficio. A second lawyer
appointed by the court missed several hearings during the
trial and could no longer be located. The third PAO lawyer
appointed by the trial court accepted his duties reluctantly
and later ceased to appear for the accused. This Court held
that:
The right to counsel must be more than just the presence of a
lawyer in the courtroom or the mere propounding of standard
questions and objections. The right to counsel means that the
accused is amply accorded legal assistance extended by a
counsel who commits himself to the cause for the defense
and acts accordingly. The right assumes an active involvement
by the lawyer in the proceedings, particularly at the trial of
the case, his bearing constantly in mind of the basic rights of
the accused, his being well-versed on the case and his
knowing the fundamental procedures, essential laws and
existing jurisprudence. The right of an accused to counsel
finds substance in the performance by the lawyer of his sworn
duty of fidelity to his client. Tersely put, it means an efficient
and truly decisive legal assistance and not a simple
perfunctory representation.
Measured by this standard, the defense counsels conduct in
this case falls short of the quality of advocacy demanded of
him, considering the gravity of the offense charged and the
finality of the penalty. A glaring example of his manifest lack
of enthusiasm for his client's cause is his decision not to cross
examine Oleby Nadera, as revealed in the following portion of
the records:
COURT:
.Any cross?
ATTY. BROTONEL:
.....If Your Honor please, we are not conducting any cross-
examination, because this representation, from the demeanor
of the witness, I am convinced that she is telling the truth. [32]
It may be so that defense counsel personally found Oleby's
testimony to be believable. Nonetheless, he had the bounden
duty to scrutinize private complainant's testimony to ensure
that the accused's constitutional right to confront and
examine the witnesses against him was not rendered for
naught.
It bears pointing out that in rape cases, it is often the word of
the complainant against that of the accused, the two being
the only persons present during the commission of the
offense. While the lone testimony of the victim is sufficient to
convict the accused, such testimony must be clear, positive,
convincing and consistent with human nature and the normal
course of things. Complainant's testimony cannot be accepted
with precipitate credulity without denying the accused's
constitutional right to be presumed innocent.[33] This is where
cross examination becomes essential to test the credibility of
the witnesses, expose falsehoods or half-truths, uncover the
truth which rehearsed direct examination testimonies may
successfully suppress, and demonstrate inconsistencies in
substantial matters which create reasonable doubt as to the
guilt of the accused and thus to give substance to the
constitutional right of the accused to confront the witnesses
against him. For unless proven otherwise to be guilty beyond
all reasonable doubt, the accused is presumed to be innocent.
[34]
Indeed, cross examining Oleby Nadera becomes indispensable
if her testimony is viewed together with the results of her
medical examination. Oleby Nadera claimed that she was last
raped by her father on April 24, 1995. [35] Yet, the medical
examination conducted on her on April 30, 1996 [36] revealed
the presence of spermatozoa in the vaginal canal on that
date. This was a year after the last rape allegedly committed
by her father. This evident discrepancy leads to only one
natural conclusion: Oleby engaged in sexual intercourse a few
days before she was examined. This raises a number of
questions that bear upon the credibility of Oleby as a witness
and upon the guilt of accused- appellant. This may not
necessarily mean that she was lying when she said that on
April 24, 1995 she had been raped by accused-appellant, but
it does indicate a necessity-that of cross examining her in
order to ferret out the truth.
The same may be said of defense counsel's treatment of
Maricris' testimony. While she was cross examined by defense
counsel, the examination was at best a half-hearted attempt
to comply with a lawyer's obligation, lacking the rigor and zeal
required considering that a man's life is at stake. The cross
examination centered on what Maricris did or did not do
while she witnessed her sister being raped, and on her failure
to report the allegedly incestuous rapes against them. Said
cross examination did not even touch upon the specific details
concerning the rape committed against her. Containing lurid
details as it may be, it was nonetheless important to probe
Maricris' testimony, especially since it was substantially
similar to the first incident of rape narrated by her sister, and
thus raised the possibility that it was a rehearsed, if not
concocted, story.
Lastly, not only did defense counsel fail to object to the
documentary evidence presented by the prosecution,
according to the trial court's decision, he even expressed his
conformity to the admission of the same. Neither did he
present any evidence on behalf of accused-appellant.
[37]
Worse, nowhere in the records is it shown that accused-
appellant was informed, either by his counsel or by the court,
of his right to present evidence, if he so desires.
Atty. Brotonel, as counsel de oficio, had the duty to defend his
client and protect his rights, no matter how guilty or evil he
perceives accused-appellant to be. The performance of this
duty was all the more imperative because the life of accused-
appellant hangs in the balance. His duty was no less because
he was counsel de oficio.
In view of the foregoing, we find it necessary to remand the
case for the proper arraignment and trial of the accused,
considering not only the accused's improvident plea of guilt
but also his lawyer's neglect in representing his cause. A new
trial has been ordered in criminal cases on the ground of
retraction of witnesses, negligence or incompetency of
counsel, improvident plea of guilty, disqualification of an
attorney de oficio to represent the accused in the trial court,
and where a judgment was rendered on a stipulation of facts
entered into by both the prosecution and the defense.[38]
WHEREFORE, the decision, dated April 27, 1997, of the
Regional Trial Court, Branch 40, Calapan, Oriental Mindoro, is
hereby SET ASIDE and Criminal Case Nos. C-4982, C-4983, C-
4984 and C-4985 are REMANDED to it for further proceedings
in accordance with this decision. The trial court is enjoined to
conduct the proper trial of accused-appellant with all
deliberate speed upon receipt of the records of the cases.
SO ORDERED.2/28/00 9:29 AM
Hadjula vs. Atty Madiana [A.C. No. 6711. July 3, 2007]
FACTS:
[C]omplainant alleged that she and respondent used to be
friends as they both worked at the Bureau of Fire Protection
(BFP), claimed that she approached respondent for some
legal advice and further alleged that in the course of their
conversation which was supposed to be kept confidential she
disclosed personal secrets 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.
[R]espondent denied giving legal advice to the complainant
and dismissed any suggestion about the existence of a lawyer-
client relationship between them. Respondent also stated the
observation that the supposed confidential data and sensitive
documents adverted to are in fact matters of common
knowledge in the BFP.
ISSUE:
Whether or not the Atty. Madiana breached her duty of
preserving the confidence of a client and violated the Code of
Professional Responsibility.
HELD:
YES. Respondent was reprimanded and admonished.
RATIO:
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 seriousness of the respondents offense notwithstanding,
the Supreme 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
respondents 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 the Court that respondent was actuated by the urge to
retaliate without perhaps realizing that, in the process of
giving vent to a negative sentiment, she was violating the rule
on confidentiality.
A.C. No. 9390 August 1, 2012
EMILIA O. DHALIWAL, Complainant,
vs.
ATTY. ABELARDO B. DUMAGUING, Respondent.
RESOLUTION
PERLAS-BERNABE, J.:
Emilia O. Dhaliwal filed a complaint for violation of Canon 16
of the Code of Professional Responsibility against Atty.
Abelardo B. Dumaguing.
In her sworn statement, complainant alleged that she
engaged the services of respondent in connection with the
purchase of a parcel of land from Fil-Estate Development, Inc.
(Fil-Estate). On June 13, 2000, upon the instruction of
respondent, complainants daughter and son-in-law
withdrew P 342,000.00 from the Philippine National Bank
(PNB) and handed the cash over to respondent. They then
proceeded to BPI Family Bank Malcolm Square Branch where
respondent purchased two managers checks in the amounts
of P 58,631.94 and P 253,188.00 both payable to the order of
Fil-Estate Inc. When asked why the managers checks were
not purchased at PNB, respondent explained that he has
friends at the BPI Family Bank and that is where he maintains
an account. These managers checks were subsequently
consigned with the Housing and Land Use Regulatory Board
(HLURB) after complainants request to suspend payments to
Fil-Estate had been granted. On September 22, 2000,
respondent, on behalf of complainant, filed with the HLURB a
complaint for delivery of title and damages against Fil-Estate.
A week after or on September 29, 2000, he withdrew the two
managers checks that were previously consigned. On March
3, 2003, complainant informed the HLURB through a letter
that respondent was no longer representing her. On March
11, 2003, the HLURB promulgated its Decision, adverse to
complainant, finding the case for delivery of title and
damages premature as there was no evidence of full payment
of the purchase price. Thereafter, complainant made
demands upon respondent to return and account to her the
amounts previously consigned with the HLURB. Respondent
did not comply. Thus, complainant prays that respondent be
disbarred.
In his answer, respondent admitted substantially all of the
allegations in the complaint. In defense, he claims that the
amount of P311,819.94 was consigned to the HLURB to cover
the full payment of the balance of the purchase price of the
lot with Fil-Estate. Fil-Estate, however, did not accept the
same as it wanted complainant to also pay interests and
surcharges totalling more than P 800,000.00. Because the
amount was formally consigned with the HLURB, he allegedly
filed a motion1 to verify if the judgment in the case was
already satisfied. He claimed that his motion has not yet been
acted upon; hence, he did not deem it proper as yet to return
the consigned amount.
Following the submission by complainant of her verified
position paper and the failure of respondent to submit his,
despite having been given ample opportunity to do so, the
Commission on Bar Discipline, through Attorney Gerely C.
Rico, submitted its Report and Recommendation finding
complainant to have sufficiently established that respondent
violated Canon 16 of the Code of Professional Responsibility.
It also found respondent to have submitted a false and
fabricated piece of documentary evidence, as the January
2004 Motion attached to his answer as Annex A did not bear
any proof of service upon the opposing party and proof of
filing with the HLURB. The Commission recommended that
respondent be suspended from the practice of law for a
period of one (1) year. On September 19, 2007, the IBP Board
of Governors passed Resolution No. XVIII-2007-93, adopting
with modification the Commissions Report and
Recommendation, to wit:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED
and APPROVED, with modification, 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 Respondents violation of Canon 16 of the
Code of Professional Responsibility by his failure to return and
account to complainant the amount previously consigned
with the HLURB despite demand, Atty. Abelardo B.
Dumaguing is hereby SUSPENDED from the practice of law for
six (6) months and Ordered to Return the amount
of P 311,819.94 to complainant within thirty (30) days from
receipt of notice.
Respondents motion for reconsideration was denied by the
IBP Board of Governors in Resolution No. XX-2012-42.
The Court adopts the IBPs findings of fact and conclusions of
law.
The Code of Professional Responsibility provides:
Canon 16-A lawyer shall hold in trust all moneys and
properties of his client that may come into his possession.
Rule 16.01-A lawyer shall account for all money or property
collected or received for or from the client.
Rule 16.02-A lawyer shall keep the funds of each client
separate and apart from his own and those of others kept by
him.
Rule 16.03-A lawyer shall deliver the funds and property of
his client when due or upon demand.
Money entrusted to a lawyer for a specific purpose, such as
payment for the balance of the purchase price of a parcel of
land as in the present case, but not used for the purpose,
should be immediately returned.2 A lawyers failure to return
upon demand the funds held by him on behalf of his client
gives rise to the presumption that he has appropriated the
same for his own use in violation of the trust reposed in him
by his client. Such act is a gross violation of general morality
as well as of professional ethics. It impairs public confidence
in the legal profession and deserves punishment. 3
Since respondent withdrew the consignation of the BPI
managers checks in the total amount of P 311,891.94 from
the HLURB and the same was not used to settle the balance
of the purchase price of the parcel of land purchased by
complainant from Fil-Estate, then reimbursement with legal
interest4 was properly ordered by the IBP.
Respondents proffered excuse of having to await the HLURB
action on his alleged motion the filing of which he miserably
failed to prove as a condition to the return of the sum
of P 311 ,891.94 to complainant compounds his liability and
even bolstered his attitude to use dishonest means if only to
evade his obligation. It underlines his failure to meet the high
moral standards required of members of the legal profession.
WHEREFORE, Atty. Abelardo B. Dumaguing is
adjudged GUILTY of violating Canon 16 of the Code of
Professional Responsibility. He is hereby SUSPENDED from
the practice of law for a period of six (6) months effective
upon receipt of this Resolution. He is also ordered to return to
complainant Emilia O. Dhaliwal, the amount of P311,819.94
with legal interest of six percent (6%) per annum from the
time of his receipt of the money on September 29, 2000 up to
the finality of this Resolution and twelve percent (12%) per
annum from finality thereof until paid.
Let copies of this Resolution be furnished the Office of the Bar
Confidant to be entered into respondents personal records as
attorney. Copies shall likewise be furnished the IBP and the
Office of the Court Administrator for circulation to all courts
concerned.
SO ORDERED.
MANALANG V. ANGELES
FACTS:
Manalang and Cirillo alleged that they were the complainants
in a case for overtime and separation pay filed against their
employer, the Philippine Racing Club Restaurant, before the
National Labor Relations. Respondent was their counsel.
Judgment was rendered in their favor, in the amount of
P6,500. After the decision became final, a writ of execution
issued. However, without authority from his clients,
respondent compromised the award and was able to collect
P5,500 only.
Complainants said they made several demands upon
respondent to turn over to them the amount collected minus
the agreed upon attorney's fees of thirty percent (30%), but
Atty. Angeles refused and offered to give them only the sum
of P2,650.
Respondent counsel stated that he offered to give
complainants their money, but they insisted that he "deduct
from this attorney's fees the amount of P2,000, representing
the amount discounted by the counsel of the Philippine
Racing Club Restaurant, together with sheriff legal fees and
other administrative expenses." Respondent claimed that to
accept complainants' proposition meant that he "would not
be compensated for prosecuting and handling, the case.
ISSUE:
Whether respondent Atty. Francisco F. Angeles should be
suspended from the practice of law because of grave
misconduct related to his clients' funds.
HELD
Where a member of the bar stands charged with malpractice,
the proceedings are not meant solely to rule on his culpability
but also to determine if the lawyer concerned is possessed of
that good moral character, which is a condition precedent to
the privilege of practicing law and continuing in the practice
thereof.
Money claims due to workers cannot, as a rule, be the object
of settlement or compromise effected by counsel without the
consent of the workers concerned . A client has every right to
expect from his counsel that nothing will be taken or withheld
from him, save by the rules of law validly applied. By
compromising the judgment without the consent of his
clients, respondent not only went against the stream of
judicial dicta, he also exhibited an uncaring lack of devotion to
the interest of his clients as well as want of zeal in the
maintenance and defense of their rights. In so doing, he
violated Canon 17 of the Code of Professional Responsibility.
A lawyer shall hold in trust all moneys and properties of his
client that may come into his possession. In the instant case,
the records clearly and abundantly point to respondent's
receipt of and failure to deliver upon demand, the amount of
P4,550 intended for his clients. This is a clear breach of Rule
16.03, Canon 16 of the Code of Professional Responsibility.
Moreover, his excuse in his answer, that he should be allowed
to deduct sheriff's fees and other administrative expenses
before delivering the money due his clients, is unsatisfactory.
Respondent clearly failed to comply with the Rules of Court in
the enforcement of an attorney's liens. The records of this
case are barren of any statement of respondent's claims for
lien or payment of his alleged disbursements. Nor did
respondent present any showing that he caused written
notices of his lien on the money judgment to be served upon
his clients and to the losing party
His act of holding on to his clients' money without their
acquiescence is conduct indicative of lack of integrity and
propriety. He was clinging to something which was not his,
and to which he had no right. He appears oblivious of the
admonition that a member of the legal fraternity should
refrain from any act or omission which might lessen the trust
and confidence reposed by the public in the fidelity, honesty,
and integrity of the legal profession.
This is the first case on record against him, a fact which could
be taken into account by way of mitigation. Considering
further the amount involved, the penalty of six (6) months
suspension appears to us in order.
A.C. No. 8158 February 24, 2010
ATTY. ELMER C. SOLIDON, Complainant,
vs.
ATTY. RAMIL E. MACALALAD, Respondent.
DECISION
BRION, J.:
In a verified complaint1 before the Commission on Bar
Discipline of the Integrated Bar of the Philippines (IBP
Commission on Bar Discipline), Atty. Elmer C. Solidon (Atty.
Solidon) sought the disbarment of Atty. Ramil E. Macalalad
(Atty. Macalalad) for violations of Rule 16.01,2 Rule
18.03,3 and Rule 18.044 of the Code of Professional
Responsibility involving negligence in handling a case.
The Facts
Atty. Macalalad is the Chief of the Legal Division of the
Department of Environment and Natural Resources (DENR),
Regional Office 8, Tacloban City. Although he is in public
service, the DENR Secretary has given him the authority to
engage in the practice of law.
While on official visit to Eastern Samar in October 2005, Atty.
Macalalad was introduced to Atty. Solidon by a mutual
acquaintance, Flordeliz Cabo-Borata (Ms. Cabo-Borata). Atty.
Solidon asked Atty. Macalalad to handle the judicial titling of a
parcel of land located in Borongan, Eastern Samar and owned
by Atty. Solidons relatives. For a consideration of Eighty
Thousand Pesos (P80,000.00), Atty. Macalalad accepted the
task to be completed within a period of eight (8) months. Atty.
Macalalad received Fifty Thousand Pesos (P50,000.00) as
initial payment; the remaining balance of Thirty Thousand
Pesos (P30,000.00) was to be paid when Atty. Solidon
received the certificate of title to the property.
Atty. Macalalad has not filed any petition for registration over
the property sought to be titled up to the present time.
In the Complaint, Position Papers5 and documentary evidence
submitted, Atty. Solidon claimed that he tried to contact Atty.
Macalalad to follow-up on the status of the case six (6)
months after he paid the initial legal fees. He did this through
phone calls and text messages to their known acquaintances
and relatives, and, finally, through a letter sent by courier to
Atty. Macalalad. However, he did not receive any
communication from Atty. Macalalad.
In the Answer,6 Position Paper,7 and affidavits of witnesses,
Atty. Macalalad posited that the delay in the filing of the
petition for the titling of the property was caused by his
clients failure to communicate with him. He also explained
that he had no intention of reneging on his obligation, as he
had already prepared the draft of the petition. He failed to file
the petition simply because he still lacked the needed
documentary evidence that his clients should have furnished
him. Lastly, Atty. Macalalad denied that Atty. Solidon tried to
communicate with him.
The Findings of the IBP
In his Report and Recommendation dated June 25, 2008,
Investigating Commissioner Randall C. Tabayoyong made the
following finding of negligence against Atty. Macalalad:
complainant submitted in his position paper the affidavit of
Flordeliz Cabo-Borata, the mutual acquaintance of both
complainant and respondent. In the said affidavit, Mrs. Cabo-
Borata described how she repeatedly followed-up the matter
with respondent and how respondent turned a deaf ear
towards the same. There is nothing on record which would
prompt this Office to view the allegations therein with
caution. In fact, considering that the allegations corroborate
the undisputed facts of the instant case
As respondent has failed to duly present any reasonable
excuse for the non-filing of the application despite the lapse
of about a year from the time his services were engaged, it is
plain that his negligence in filing the application remains
uncontroverted. And such negligence is contrary to the
mandate prescribed in Rule 18.03, Canon 18 of the Code of
Professional Responsibility, which enjoins a lawyer not to
neglect a legal matter entrusted to him. In fact, Rule 18.03
even provides that his negligence in connection therewith
shall render him liable.
Acting on this recommendation, the Board of Governors of
the IBP Commission on Bar Discipline passed Resolution No.
XVIII-2008-336 dated July 17, 2008, holding that:
RESOLVED TO ADOPT and APPROVE, as it is hereby
unanimously ADOPTED and APPROVED, with modification,
the Report and Recommendation of the Investigating
Commissioner of the above-entitled case, herein made part of
this Resolution and, finding the recommendation fully
supported by the evidence on record and the applicable laws
and rules, and considering Respondents violation of Rule
18.03 of the Code of Professional Responsibility, Atty. Ramil E.
Macalalad is hereby SUSPENDED from the practice of law for
three (3) months and Ordered to Return the amount of Fifty
Thousand Pesos (P50,000) with 12% interest per annum to
complainant
The case is now before this Court for our final action pursuant
to Section 12(b), Rule 139-B of the Rules of Court, considering
that the IBP Commission on Bar Discipline imposed the
penalty of suspension on Atty. Macalalad.
The Courts Ruling
We agree with the IBPs factual findings and legal conclusions.
In administrative cases against lawyers, the quantum of proof
required is preponderance of evidence which the complainant
has the burden to discharge.8 We fully considered the
evidence presented and we are fully satisfied that the
complainants evidence, as outlined above, fully satisfies the
required quantum of proof in proving Atty. Macalalads
negligence.
Rule 18.03, Canon 18 of the Code of Professional
Responsibility provides for the rule on negligence and states:
Rule 18.03 A lawyer shall not neglect a legal matter
entrusted to him and his negligence in connection therewith
shall render him liable.
This Court has consistently held, in construing this Rule, that
the mere failure of the lawyer to perform the obligations due
to the client is considered per se a violation.
Thus, in Villafuerte v. Cortez,9 we held that a lawyer is
negligent if he failed to do anything to protect his clients
interest after receiving his acceptance fee. In In Re: Atty.
Briones,10 we ruled that the failure of the counsel to submit
the required brief within the reglementary period (to the
prejudice of his client who languished in jail for more than a
year) is an offense that warrants disciplinary action. In Garcia
v. Atty. Manuel, we penalized a lawyer for failing to inform the
client of the status of the case, among other matters. 11
Subsequently, in Reyes v. Vitan,12 we reiterated that the act of
receiving money as acceptance fee for legal services in
handling the complainants case and, subsequently, in failing
to render the services, is a clear violation of Canon 18 of
the Code of Professional Responsibility. We made the same
conclusion in Canoy v. Ortiz13 where we emphatically stated
that the lawyers failure to file the position paper was per se a
violation of Rule 18.03 of the Code of Professional
Responsibility.
The circumstance that the client was also at fault does not
exonerate a lawyer from liability for his negligence in handling
a case. In Canoy, we accordingly declared that the lawyer
cannot shift the blame to his client for failing to follow up on
his case because it was the lawyers duty to inform his client
of the status of the case.14 Our rulings in Macarilay v.
Seria,15 in Heirs of Ballesteros v. Apiag,16 and in Villaflores v.
Limos17 were of the same tenor. In Villaflores, we opined that
even if the client has been equally at fault for the lack of
communication, the main responsibility remains with the
lawyer to inquire and know the best means to acquire the
required information. We held that as between the client and
his lawyer, the latter has more control in handling the case.
All these rulings drive home the fiduciary nature of a lawyers
duty to his client once an engagement for legal services is
accepted. A lawyer so engaged to represent a client bears the
responsibility of protecting the latters interest with utmost
diligence.18 The lawyer bears the duty to serve his client with
competence and diligence, and to exert his best efforts to
protect, within the bounds of the law, the interest of his or
her client.19 Accordingly, competence, not only in the
knowledge of law, but also in the management of the cases by
giving these cases appropriate attention and due preparation,
is expected from a lawyer.20
The records in this case tell us that Atty. Macalalad failed to
act as he committed when he failed to file the required
petition. He cannot now shift the blame to his clients since it
was his duty as a lawyer to communicate with them. At any
rate, we reject Atty. Macalalads defense that it was his clients
who failed to contact him. Although no previous
communication transpired between Atty. Macalalad and his
clients, the records nevertheless show that Atty. Solidon, who
contracted Atty. Macalalads services in behalf of his relatives,
tried his best to reach him prior to the filing of the present
disbarment case. Atty. Solidon even enlisted the aid of Ms.
Cabo-Borata to follow-up on the status of the registration
application with Atty. Macalalad.
As narrated by Ms. Cabo-Borata in her affidavit,21 she
succeeded several times in getting in touch with Atty.
Macalalad and on those occasions asked him about the
progress of the case. To use Ms. Cabo-Boratas own words,
she received no clear-cut answers from him; he just
informed her that everything was on process. We give
credence to these narrations considering Atty. Macalalads
failure to contradict them or deny their veracity, in marked
contrast with his vigorous denial of Atty. Solidons allegations.
We consider, too, that other motivating factors specifically,
the monetary consideration and the fixed period of
performance should have made it more imperative for Atty.
Macalalad to promptly take action and initiate
communication with his clients. He had been given initial
payment and should have at least undertaken initial delivery
of his part of the engagement.
We further find that Atty. Macalalads conduct refutes his
claim of willingness to perform his obligations. If Atty.
Macalalad truly wanted to file the petition, he could have
acquired the necessary information from Atty. Solidon to
enable him to file the petition even pending the IBP
Commission on Bar Discipline investigation. As matters now
stand, he did not take any action to initiate communication.
These omissions unequivocally point to Atty. Macalalads lack
of due care that now warrants disciplinary action.
In addition to the above finding of negligence, we also find
Atty. Macalalad guilty of violating Rule 16.01 of the Code of
Professional Responsibility which requires a lawyer to account
for all the money received from the client. In this case, Atty.
Macalalad did not immediately account for and promptly
return the money he received from Atty. Solidon even after he
failed to render any legal service within the contracted time
of the engagement.22
The Penalty
Based on these considerations, we modify the IBP
Commission on Bar Disciplines recommended penalty by
increasing the period of Atty. Macalalads suspension from the
practice of law from three (3) months, to six (6) months.23 In
this regard, we follow the Courts lead in Parias v.
Paguinto24 where we imposed on the respondent lawyer
suspension of six (6) months from the practice of law for
violations of Rule 16.01 and Rule 18.03 of the Code of
Professional Responsibility.
WHEREFORE, premises considered, we hereby AFFIRM WITH
MODIFICATION Resolution No. XVIII-2008-336 dated July 17,
2008 of the Board of Governors of the IBP Commission on Bar
Discipline. We impose on Atty. Ramil E. Macalalad the penalty
of SIX (6) MONTHS SUSPENSION from the practice of law for
violations of Rule 16.03 and Rule 18.03 of the Code of
Professional Responsibility, effective upon finality of this
Decision. Atty. Macalalad is STERNLY WARNED that a
repetition of the same or similar acts will be dealt with more
severely.
Atty. Macalalad is also ORDERED to RETURN to Atty. Elmer C.
Solidon the amount of Fifty Thousand Pesos (P50,000.00)
with interest of twelve percent (12%) per annum from the
date of promulgation of this Decision until the full amount is
returned.
Let copies of this Decision be furnished the Office of the Bar
Confidant and noted in Atty. Macalalads record as a member
of the Bar.
SO ORDERED.
ATTY. GEORGE C. BRIONES V. ATTY. JACINTO D.
JIMENEZ
FACTS:
The complainant in this disbarment case is Atty.
Briones. The respondent is Atty. Jimenez. Complainant Briones
is the Special Administrator of the Henson Estate, while
respondent Jimenez is the counsel for Heirs of Henson.
The root of herein administrative complaint for
Disbarment is an RTC Order (2002). The RTC Order directed
complainant Briones to deliver the residue of the estate to the
Heirs in proportion to their shares. Complainant Briones did not
reply to the demand, so respondent Jimenez opted to file a
criminal complaint in behalf of his clients for refusal to obey the
lawful order of the court.
Complainant Briones now claims that respondent
Jimenez is guilty of violation of Rule 19.01 of the Code of
Professional responsibility by filing the unfounded criminal
complaint against complainant to obtain an improper
advantage:
Rule 19.01 - A lawyer shall employ only fair and
honest means to attain the lawful objectives of his client and
shall not present, participate in presenting or threaten to
present unfounded criminal charges to obtain an improper
advantage in any case of proceeding.
ISSUE:
Whether or not respondent Atty. Jimenez should be
administratively liable.
HELD:
Yes. Atty. Jacinto D. Jimenez is found guilty of and
REPRIMANDED [since no evidence of malice or bad faith] for
violation of Rule 19.01 of the Code of Professional
Responsibility Fair play demands that respondent should have
filed the proper motion with the RTC to attain his goal of having
the residue of the estate delivered to his clients and not subject
complainant to a premature criminal prosecution.
Canon 19 of the Code of Professional Responsibility
enjoins a lawyer to represent his client with zeal. However, the
same Canon provides that a lawyers performance of his duties
towards his client must be within the bounds of the law. Rule
19.01 of the same Canon requires, among others, that a
lawyer shall employ only fair and honest means to attain the
lawful objectives of his client. To permit lawyers to resort to
unscrupulous practices for the protection of the supposed
rights of their clients is to defeat one of the purposes of the
state the administration of justice. While lawyers owe their
entire devotion to the interest of their clients and zeal in the
defense of their clients right, they should not forget that they
are, first and foremost, officers of the court, bound to exert
every effort to assist in the speedy and efficient administration
of justice.
OROCIO VS ANGULUAN
GR No. 179892-93; 30 January 2009
Facts:
NAPOCOR passed a resolution approving the grant of a
monthly welfare allowance equivalent to 10% of basic pay to
all its employees effective 1 October 1978. This was called the
NAPOCOR Welfare Fund. Later on NAPOCOR passed a
resolution lowering it to 5%.After 2 decades Congress passed
EPIRA which directed the reorganization of NAPOCOR.
Following the directive of EPIRA NAPOCOR abolished the
fund. Later on NAPOCOR was approved to release P184M
from the fund for distribution to members who resigned,
retired or separated. Anguluhan however issued a
memorandum that allowed the release to separated
members only to the exclusion of those who resigned, retired
or separated prior to the EPIRA.
Segovia, Baysic and affected employees affected represented
by Atty. Orocio filed with the RTC a petition for mandamus
with a prayer for a TRO against NPC. Orocio and his clients
settled for a contingency fee of 15%. The parties settled for a
compromise agreement which granted earning differential to
the affected members and allowed Orocio to collect 15% from
it as attorneys fees.
RTC issued a writ of execution for Orocio to collect his
attorneys fees. A notice of garnishment was also issued. But,
respondents contended that the amount Orocio based his
15% fees was merely an estimate. Respondents appealed to
the CA which issued a TRO. The CA held that Orocio may only
collect P1M on the basis of quantum meruit because the
employees settled through a compromise agreement and not
won by Orocio in a trial.
Issue:
Whether the Atty. Orocio may collect 15% of the
amountstated in the Compromise Agreement.
Ruling:
No. First, herein respondents are not clients of Orocio they
are in fact the opponents of Orocios clients. There had been
no objection by his clients when he partially collected from
payments by NAPOCOR to them. His clients do not claim any
damage or injury by the issuance of the writ of execution. The
15% to be collected by Orocio is from the agreement with his
clients that he will only collect contingency fees. This kind of
arrangement is allowed by law subject to Canon 20 which
provides that a lawyer shall charge fair and reasonable fees.
The principle of quantum meruit may be a basis for
determining reasonable attorneys fees. This principle may
apply even if there is already an agreed written fee as long as
the court finds it unconscionable.
The SC found Orocio to have worked diligently and if it were
not for him there would have been no compromise
agreement. However, the attorneys fees had to be reduced to
10% which is also the percentage allowed by the labor code.
The practice of law is a profession and not a moneymaking
venture.
ATTY. CARMEN LEONOR M. ALCANTARA, VICENTE P.
MERCADO, SEVERINO P. MERCADO AND SPOUSES JESUS
AND ROSARIO MERCADO, Complainants,
vs.
ATTY. EDUARDO C. DE VERA, Respondent.
For our review is the Resolution1 of the Board of Governors of
the Integrated Bar of the Philippines (IBP) finding respondent
Atty. Eduardo C. De Vera liable for professional malpractice
and gross misconduct and recommending his disbarment.
The facts, as appreciated by the investigating
commissioner,2 are undisputed.
The respondent is a member of the Bar and was the former
counsel of Rosario P. Mercado in a civil case filed in 1984 with
the Regional Trial Court of Davao City and an administrative
case filed before the Securities and Exchange Commission,
Davao City Extension Office.3
Pursuant to a favorable decision, a writ of execution pending
appeal was issued in favor of Rosario P. Mercado. Herein
respondent, as her legal counsel, garnished the bank deposits
of the defendant, but did not turn over the proceeds to
Rosario. Rosario demanded that the respondent turn over the
proceeds of the garnishment, but the latter refused claiming
that he had paid part of the money to the judge while the
balance was his, as attorneys fees. Such refusal prompted
Rosario to file an administrative case for disbarment against
the respondent.4
On March 23, 1993, the IBP Board of Governors promulgated
a Resolution holding the respondent guilty of infidelity in the
custody and handling of clients funds and recommending to
the Court his one-year suspension from the practice of law. 5
Following the release of the aforesaid IBP Resolution, the
respondent filed a series of lawsuits against the Mercado
family except George Mercado. The respondent also
instituted cases against the family corporation, the
corporations accountant and the judge who ruled against the
reopening of the case where respondent tried to collect the
balance of his alleged fee from Rosario. Later on, the
respondent also filed cases against the chairman and
members of the IBP Board of Governors who voted to
recommend his suspension from the practice of law for one
year. Complainants allege that the respondent committed
barratry, forum shopping, exploitation of family problems,
and use of intemperate language when he filed several
frivolous and unwarranted lawsuits against the complainants
and their family members, their lawyers, and the family
corporation.6 They maintain that the primary purpose of the
cases is to harass and to exact revenge for the one-year
suspension from the practice of law meted out by the IBP
against the respondent. Thus, they pray that the respondent
be disbarred for malpractice and gross misconduct under
Section 27,7 Rule 138 of the Rules of Court.
In his defense the respondent basically offers a denial of the
charges against him.
He denies he has committed barratry by instigating or stirring
up George Mercado to file lawsuits against the complainants.
He insists that the lawsuits that he and George filed against
the complainants were not harassment suits but were in fact
filed in good faith and were based on strong facts. 8
Also, the respondent denies that he has engaged in forum
shopping. He argues that he was merely exhausting the
remedies allowed by law and that he was merely constrained
to seek relief elsewhere by reason of the denial of the trial
court to reopen the civil case so he could justify his attorneys
fees.
Further, he denies that he had exploited the problems of his
clients family. He argues that the case that he and George
Mercado filed against the complainants arose from their
perception of unlawful transgressions committed by the latter
for which they must be held accountable for the public
interest.
Finally, the respondent denies using any intemperate, vulgar,
or unprofessional language. On the contrary, he asserts that it
was the complainants who resorted to intemperate and
vulgar language in accusing him of extorting from Rosario
shocking and unconscionable attorneys fees. 9
After careful consideration of the records of this case and the
parties submissions, we find ourselves in agreement with the
findings and recommendation of the IBP Board of Governors.
It is worth stressing that the practice of law is not a right but a
privilege bestowed by the State upon those who show that
they possess, and continue to possess, the qualifications
required by law for the conferment of such
privilege.10 Membership in the bar is a privilege burdened
with conditions. A lawyer has the privilege and right to
practice law only during good behavior and can only be
deprived of it for misconduct ascertained and declared by
judgment of the court after opportunity to be heard has been
afforded him. Without invading any constitutional privilege or
right, an attorneys right to practice law may be resolved by a
proceeding to suspend or disbar him, based on conduct
rendering him unfit to hold a license or to exercise the duties
and responsibilities of an attorney. It must be understood that
the purpose of suspending or disbarring an attorney is to
remove from the profession a person whose misconduct has
proved him unfit to be entrusted with the duties and
responsibilities belonging to an office of an attorney, and thus
to protect the public and those charged with the
administration of justice, rather than to punish the
attorney.11 In Maligsa v. Cabanting,12 we explained that the bar
should maintain a high standard of legal proficiency as well as
of honesty and fair dealing. A lawyer brings honor to the legal
profession by faithfully performing his duties to society, to the
bar, to the courts and to his clients. To this end a member of
the legal profession should refrain from doing any act which
might lessen in any degree the confidence and trust reposed
by the public in the fidelity, honesty and integrity of the legal
profession. An attorney may be disbarred or suspended for
any violation of his oath or of his duties as an attorney and
counselor, which include statutory grounds enumerated in
Section 27, Rule 138 of the Rules of Court.
In the present case, the respondent committed professional
malpractice and gross misconduct particularly in his acts
against his former clients after the issuance of the IBP
Resolution suspending him from the practice of law for one
year. In summary, the respondent filed against his former
client, her family members, the family corporation of his
former client, the Chairman and members of the Board of
Governors of the IBP who issued the said Resolution, the
Regional Trial Court Judge in the case where his former client
received a favorable judgment, and the present counsel of his
former client, a total of twelve (12) different cases in various
fora which included the Securities and Exchange Commission;
the Provincial Prosecutors Office of Tagum, Davao; the Davao
City Prosecutors Office; the IBP-Commission on Bar Discipline;
the Department of Agrarian Reform; and the Supreme
Court.13
In addition to the twelve (12) cases filed, the respondent also
re-filed cases which had previously been dismissed. The
respondent filed six criminal cases against members of the
Mercado family separately docketed as I.S. Nos. 97-135; 97-
136; 97-137; 97-138; 97-139; and 97-140. With the exception
of I.S. No. 97-139, all the aforementioned cases are re-filing of
previously dismissed cases.14
Now, there is nothing ethically remiss in a lawyer who files
numerous cases in different fora, as long as he does so in
good faith, in accordance with the Rules, and without any ill-
motive or purpose other than to achieve justice and fairness.
In the present case, however, we find that the barrage of
cases filed by the respondent against his former client and
others close to her was meant to overwhelm said client and
to show her that the respondent does not fold easily after he
was meted a penalty of one year suspension from the
practice of law.
The nature of the cases filed by the respondent, the fact of re-
filing them after being dismissed, the timing of the filing of
cases, the fact that the respondent was in conspiracy with a
renegade member of the complainants family, the
defendants named in the cases and the foul language used in
the pleadings and motions15 all indicate that the respondent
was acting beyond the desire for justice and fairness. His act
of filing a barrage of cases appears to be an act of revenge
and hate driven by anger and frustration against his former
client who filed the disciplinary complaint against him for
infidelity in the custody of a clients funds.
In the case of Prieto v. Corpuz,16 the Court pronounced that it
is professionally irresponsible for a lawyer to file frivolous
lawsuits. Thus, we stated in Prieto,
Atty. Marcos V. Prieto must be sanctioned for filing this
unfounded complaint. Although no person should be
penalized for the exercise of the right to litigate, however, this
right must be exercised in good faith.17
As officers of the court, lawyers have a responsibility to assist
in the proper administration of justice. They do not discharge
this duty by filing frivolous petitions that only add to the
workload of the judiciary.
A lawyer is part of the machinery in the administration of
justice. Like the court itself, he is an instrument to advance its
ends the speedy, efficient, impartial, correct and
inexpensive adjudication of cases and the prompt satisfaction
of final judgments. A lawyer should not only help attain these
objectives but should likewise avoid any unethical or
improper practices that impede, obstruct or prevent their
realization, charged as he is with the primary task of assisting
in the speedy and efficient administration of justice. 18 Canon
12 of the Code of Professional Responsibility promulgated on
21 June 1988 is very explicit that lawyers must exert every
effort and consider it their duty to assist in the speedy and
efficient administration of justice.
Further, the respondent not only filed frivolous and
unfounded lawsuits that violated his duties as an officer of
the court in aiding in the proper administration of justice, but
he did so against a former client to whom he owes loyalty and
fidelity. Canon 21 and Rule 21.02 of the Code of Professional
Responsibility19 provides:
CANON 21 A lawyer shall preserve the confidence and
secrets of his client even after the attorney-client relation is
terminated.
Rule 21.02 A lawyer shall not, to the disadvantage of his
client, use information acquired in the course of employment,
nor shall he use the same to his own advantage or that of a
third person, unless the client with full knowledge of the
circumstances consents thereto.
The cases filed by the respondent against his former client
involved matters and information acquired by the respondent
during the time when he was still Rosarios counsel.
Information as to the structure and operations of the family
corporation, private documents, and other pertinent facts
and figures used as basis or in support of the cases filed by
the respondent in pursuit of his malicious motives were all
acquired through the attorney-client relationship with herein
complainants. Such act is in direct violation of the Canons and
will not be tolerated by the Court.
WHEREFORE, respondent Atty. Eduardo C. De Vera is hereby
DISBARRED from the practice of law effective immediately
upon his receipt of this Resolution.
Let copies of this Resolution be furnished the Bar Confidant to
be spread on the records of the respondent; the Integrated
Bar of the Philippines for distribution to all its chapters; and
the Office of the Court Administrator for dissemination to all
courts throughout the country.
SO ORDERED.