Substitution of Attorneys  

SPOUSES AQUINO vs. COURT OF APPEALSG.R. No. 109493, July 2, 1999

  FACTS:     A decision of the Regional Trial Court had become final and executory due to the failure of the petitioners to file their appellants’ brief within the reglementary period. The Court of Appeals denied the motion for reconsideration on the ground that it was beyond the power of the court to modify the dismissal since the order dismissing the appeal had become final and executory and an entry of judgment was already issued.                       The petitioners contend that the Court of Appeals erred when it served copies of resolutions upon their former counsel de parte (Atty. Barican) and not to the counsel of record (Atty. Mala). Furthermore, the CA erred in not serving the resolution to the petitioner despite knowledge of the death of their counsel of record. ISSUE:    Was there a valid substitution of attorneys? HELD:      NONE. Section 26, Rule 138 of the Rules of Court states that the proper procedure for the withdrawal of a lawyer as counsel in a case. It provides: Section 26 – Change of Attorneys – An attorney may retire at anytime from an action  or special proceeding, by the written consent of his client filed in court. He may also retire at anytime from an action or special proceeding, without consent of his client, should the court,  on notice to the client and attorney, and on hearing, determine that he ought to be allowed to retire. In case of substitution, the name of the attorney newly employed shall be entered on the docket of the court in place of the former one, and the written notice of the change shall be given to the adverse party x x x.”                       Unless the procedure prescribed in the above mentioned section is complied with, the attorney of record is regarded as the counsel who should be served with copies of the judgments, orders and pleadings and who should be held responsible for the case. In case of substitution of attorneys the following requisites must be complied with: (1) written application for substitution; (2) written consent of the client; and (3) a written consent of the attorney to be substituted. In case the consent of the attorney to be substituted cannot be obtained, there must at least be proof that notice of the motion for substitution has been served upon him in the manner prescribed by our rules.                      In the present case, petitioners admit that Atty. Barican represented them in the proceedings before the lower court but that Atty. Mala substituted Atty. Barican when the case was elevated to the court of Appeals. No proof was presented by the petitioners to show compliance with the above procedural requirements for the withdrawal of Atty. Barican and the substitution of Atty. Mala in his stead; no written application for substitution or written consent of the client was filed in court. The Certification made by Atty. Barican to the effect that he was the former counsel of record of the petitioners but that he withdrew as their counsel is not controlling in the absence of compliance with the above procedural requirements. It is therefore irrelevant that Atty. Mala did not receive the copy of the resolution of the court of Appeals which dismissed their appeal since he was not the counsel of record and had never entered his appearance as counsel of the petitioners. 

 7. Disbarment of lawyer requires clear and preponderant evidence

 Danilo Conception vs. Daniel FandinoA. C. No. June 21, 2000. 334 SCAR 136 PONENTE: Mendoza FACTS: A complaint for disbarment was filed against Atty. Fandiño for gross misconduct, deceit and malpractice for having notarized several documents without having been appointed or commissioned as a notary public. The complaint was dismissed by the IBP because the documents submitted by complainant were mere photocopies. HELD     Although disciplinary proceedings against lawyers are not civil or criminal nature, but rather investigations by the Court into the conduct of its officers, the rules on evidence cannot be disregarded considering that the

exercise of one’s profession is at stake. Under the Best Evidence Rule, mere photocopies of the alleged notarized documents is inadmissible in evidence, in the absence of evidence to prove that the original copies of the same were lost or destroyed or cannot be otherwise produced. Considering the serious consequence of the disbarment or suspension of a member of the Bar, clear and preponderant evidence is necessary to justify the imposition of the administrative penalty, with the burden of proof resting upon the complainant. 

Procedure for Complaints against Lawyers

  

COTTAM vs. LAYSA

A.C. No. 4834,  February 29, 2000  

Facts:     Respondent was being charged for gross misconduct and dishonesty.  The Court, after finding merit to the case, referred the case to IBP for investigation, report and recommendation.  IBP Commissioner recommended that respondent lawyer be suspended from the practice of law for 1 year and that her appointment as Notary Public be revoked whose decision was adopted by the IBP Board of Governors.  Upon learning of such decision, Atty. Laysa sought for reconsideration averring that no formal investigation was held and that she was not afforded a right to be heard. Issue:        Was the proper procedure followed? Held:             NO. Complaints against lawyers for misconduct are normally addressed the Court. If, at the outset, the Court finds a complaint to be clearly wanting in merit, it may outrightly dismisses the case. If, however, the Court deems it necessary that further inquiry should be made, such as when the matter could not be resolved by merely evaluating the pleadings submitted, a referral is made to the IBP for a formal investigation of the case during which the parties are accorded an opportunity to be heard. An ex parte investigation may only be conducted when respondent fails to appear despite reasonable notice. 

CRUZ vs. JACINTO

A.C. No. 5235, March 22, 2000

  Facts:           Respondent Atty. Jacinto, being the lawyer of the complainants, requested the Cruz spouses to grant a loan in behalf of Padilla, who he claimed to be his old friend. The spouses, believing and trusting the representations of their lawyer that Padilla was a good risk, authorized him to start preparing all the necessary documents relative to the registration of the Real Estate Mortgage to secure the payment of the loan in favor of the Cruz spouses.  Upon maturity of the loan, the spouses demanded payment from Padilla by going to the address given by respondent but there proved to be no person by that name living therein.  They also discovered that the certificate of title given to them by virtue of the mortgage was fake.                  In their sworn affidavits, the spouses claim that they relied much on reassurances made by Atty. Jacinto as to Padilla’s credit, considering that he was their  lawyer.  There was also an unrebutted evidence that respondent had ordered his secretary and housemaid to falsify the signatures of the notary public and the Deputy Register of Deeds respectively to make it appear that the real estate mortgage contract was duly registered and thus binding.  Issue:           Is the respondent lawyer guilty of professional misconduct? 

Held:           YES.  Respondent represented complainants in the loan transaction. By his own admission, he was the one who negotiated with the borrower, his long-time friend and a former client. He acted not merely as an agent but as a lawyer of complainants, thus, the execution of the real estate mortgage contract, as well as its registration and annotation on the title were entrusted to him. In fact, respondent even received his share in the interest earnings which complainants realized from the transaction. His refusal to recognize any wrongdoing or carelessness by claiming that he is likewise a victim when it was shown that the title to the property, the registration of the real estate mortgage contract, and the annotation thereon were all feigned, will not at all exonerate him.

             As a rule, a lawyer is not barred from dealing with his client but the business transaction must be characterized with utmost honesty and good faith. However, the measure of good faith which an attorney is required to exercise in his dealings with his client is a much higher standard than is required in business dealings where the parties trade at arms length. Business transactions between an attorney and his client are disfavored and discouraged by the policy of the law. Hence, courts carefully watch these transactions to be sure that no advantage is taken by a lawyer over his client. This rule is founded on public policy for, by virtue of his office, an attorney is in an easy position to take advantage of the credulity and ignorance of his client. Thus, no presumption of innocence or improbability of wrongdoing is considered in an attorney's favor.  Further, his fidelity to the cause of his client requires him to be ever mindful of the responsibilities that should be expected of him.

      Respondent utterly failed to perform his duties and responsibilities faithfully as well as to protect the

rights and interests of his clients and by his deceitful actuations constituting violations of the Code of Professional

Responsibilities must be subjected to disciplinary measures for his own good, as well as for the good o the entire

membership of the Bar as a whole.

 

Professional Misconduct

  

JUDGE ANGELES vs. UY

A.C. No. 5019, April 6, 2000

  

Facts:           In a letter addressed to the Office of the Chief Justice, Judge Angeles of the RTC of Caloocan City charged Atty. Uy Jr. with violation of Canon 16 of the Code of Professional Responsibility.

The accused manifested that she had already settled in full the civil aspect in the criminal case handled by respondent under the sala of judge complainant.  Accused further alleged that she paid P20,000.00 directly to the private complainant and the balance of P16,500.00 was delivered to Atty. Uy, Jr., the lawyer of the private complainant and conformably produced in open court the receipt for such payment signed by no less than the aforesaid lawyer.  However, private complainant manifested that she did not receive the amount paid to his lawyer, herein respondent, thereby constraining the court to direct respondent to turn over the money to private complainant which he received in trust for the client. Atty. Uy however argued that his client did not like to accept the money but the assertion of the lawyer was belied by his own client, the herein private complainant, who manifested in open court  her willingness to accept the money. The Court again directed Atty. Uy to produce the money but the latter argued that he kept it in his office. Consequently, the Court suspended the proceedings to enable Atty. Uy to get the money from his law office which is located only at the second floor of the same building where this court is located.  However, respondent did not show up anymore. Issue:           Is the respondent guilty of professional misconduct?

 

Held:            YES. The relationship between a lawyer and a client is highly fiduciary; it requires a high degree of fidelity and good faith. It is designed "to remove all such temptation and to prevent everything of that kind from being done for the protection of the client." Thus, Canon 16 of the Code of Professional Responsibility provides that "a lawyer shall hold in trust all moneys and properties of his client that may come into his possession." Furthermore, Rule 16.01 of the Code also states that "a lawyer shall account for all money or property collected or received for or from the client." The Canons of Professional Ethics is even more explicit: "The lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client.

In the present case, it is clear that respondent failed to promptly report and account for the P16,500 he had received from Trajano on behalf of his client. Although the amount had been entrusted to respondent, his client revealed during the hearing that she had not yet received it. Worse, she did not even know where it was.

                      The records do not clearly show whether Atty Uy had in fact appropriated the said amount; in fact, his

client acknowledged that she had received it. They do show, however, that respondent failed to promptly report that

amount to her. This is clearly a violation of his professional responsibility. It is settled that money collected by a

lawyer in favor of his clients must be immediately turned over to them and that lawyers are bound to promptly

account for money or property received by them on behalf of their clients and failure to do so constitutes

professional misconduct.

      Verily, the question is not necessarily whether the rights of the clients have been prejudiced, but whether the

lawyer has adhered to the ethical standards of the bar. In this case, respondent has not done so.

  

Gross Misconduct and/or Deceit of a Lawyer

  

SALONGA vs. HILDAWAAdm. Case No. 5105, August 12, 1999

  

Facts:              Respondent lawyer was a retained counsel of STAVA, a vendors association, for a number of years and represented the association in an ejectment case against several stallholders at the Alabang market. The accrued rentals which was deposited with the court was withdrawn by respondent lawyer without the authority from the association. To make matters even worse, respondent lawyer appeared as  counsel of the opponent association of STAVA. Issue:       Is respondent lawyer guilty of gross misconduct and/or deceit? Held:      YES.  Respondent lawyer has transgressed Canon 21 which requires a lawyer to preserve the confidences and secrets of his client even after the attorney-client relation ceases, a mandate that he has placed in possible jeopardy by agreeing to appear as counsel for a party his client has previously contented with in a case similarly involving said parties.

 Violation of Lawyer's Oath & Disregard of the Canons Of Professional Ethics  

SAURA, ET AL. vs. AGDEPPAAdm. Case No. 4426, February 17, 2000

  

Facts:      Respondent handled the settlement case involving a piece of property owned in common by the petitioners with other siblings. It appears that the negotiations for the settlement of the property dragged on for three years. Petitioners learned that the administrators of the property, with the assistance of the respondent, who in fact notarized the Deed of Sale, sold the property without the knowledge and participation of petitioners. Petitioners allege that despite repeated demands, respondent have refused to disclose the amount of the sale. The petitioners have thus been constrained to institute criminal and civil actions.                      However, at the scheduled hearing, there was no appearance for the respondent despite receipt of the copy of the petition. To date, no response has been forth coming from respondent.                                               Issues:     (1.) Should the petitions against respondent be dismissed as according to her, she was not accorded her right to due process?

                        (2.) Is the respondent correct in saying that she could not answer the charges against her without

divulging certain pieces of information in violation of the attorney-client privilege?

 Held:        (1.) NO. The respondent was given notice on various occasions but she chose to ignore them and failed to exercise her right to be heard.

Section 30, Rule 138 of the Rules of Court specifically provides that: “SECTION 30.      Attorney to be heard before removal or suspension charges against him, to produce witness in his behalf, and to be. — No attorney shall be removed or suspended from the practice of his profession, until he has full opportunity upon reasonable notice to answer the 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, the Court cannot be expected to wait

indefinitely for her answer.

 

 

(2.) NO. 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:

"SECTION 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

Negligence

  

TORRES vs. ORDEN

A.C. No. 4646,  April 6, 2000

  

Facts:           This  is an administrative complaint against respondent for his failure to properly discharge his duty as counsel when he failed to submit an appellee’s brief before the Court of Appeals for the case which he handles on behalf of the complainants despite the notice.  Subsequently, the appealed case was submitted for decision sans appellee’s brief.  As the result of which, the appellate court decided not in favor the complainant. Issue:            Is the respondent counsel guilty of negligence? Held:            YES. We note that inspite of Atty. Orden's repeated declarations which would create the unmistakable impression that he had in fact prepared and completed his client's brief, no such brief was ever submitted to the Supreme Court

                      We are convinced that Atty. Amado Orden, despite his avowals has not prepared any such brief.

Worse, we are just as convinced that Atty. Orden has displayed a glaring ignorance of procedures and a grossly

negligent failure to keep abreast of the latest resolution and circulars of the Supreme Court and the Appellate Court

in regard to appeals. To be sure as a practitioner, Atty. Orden ought to have kept himself attuned to the Rules of

Court and the latest jurisprudence and rulings of the Supreme Court. Briefly stated, respondent Atty. Orden has not

been honest with the Supreme Court. Worse, he has not been honest with his client and worst with himself.

 Grossly Immoral Conduct 

TUCAY vs. TUCAYA.C. No. 5170, November 17, 1999

 FACTS:      Complainant Lilia Tucay and respondent Atty. Manuel Tucay took their vows in 1963. In 1993, while respondent’s first marriage is still subsisting, respondent lawyer contracted another marriage with one Tuplano. Respondent left the conjugal dwelling to cohabit with the latter.

       Complainant Tucay seeks the latter’s disbarment. 

ISSUE:     Should respondent Manuel Tucay be disbarred for carrying on an illicit affair with a married woman? HELD:       YES. The records of the administrative case against Atty. Tucay indeed show that respondent has been carrying on an illicit affair with a married woman, a grossly immoral conduct and only indicative of an extremely low regard for the fundamental ethics of his professional. This detestable behavior renders him regrettably unfit and undeserving of the treasured honor and privileges which his license confers upon him.                     A lawyer may be disbarred or suspended for any violation of his oath, a patent disregard of his duties, or an odious deportment unbecoming of an attorney. The grounds enumerated in Section 27, Rule 138, of the Rules

of Court, including deceit, malpractice, or other gross misconduct in office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to the practice of law, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as a n attorney for a party to a case without authority to do so , are not preclusive in nature even as they are broad enough as to cover practically any kind of impropriety that a lawyer does or commits in his professional career or in his private life. A lawyer at no time must be wanting in probity and moral fiber which not only are conditions precedent to his entrance to, but are likewise essential demands for his continued membership, in a great and noble profession. 

Gross Immorality

  

UI vs. BONIFACIO

Adm. Case No. 3319, June 8, 2000  

Facts:     A complaint for disbarment was filed by the complainant, Leslie Ui against respondent Atty. Iris Bonifacio before the Commission on Bar Discipline of the IBP on the grounds of immorality, for carrying  on an illicit relationship with the complainant’s husband, Carlos Ui. It is respondent’s contention that her relationship with Carlos Ui is not illicit because they were married abroad and that after June 1998 when respondent discovered Carlos Ui’s true civil status, she cut off all her ties with him. Issue:    Did the respondent conduct herself in an immoral manner for which she deserves to be barred from the practice of law? Held:        NO. The practice of law is a privilege. A bar candidate does not have the right to enjoy the practice of the legal profession simply by passing the bar examinations. It is a privilege that can be revoked, subject to the mandate of due process, once a lawyer violates his oath and the dictates of legal ethics.  If good moral character is a sine qua non for admission to the bar, then the continued possession of good moral character is also requisite for retaining membership in the legal profession.

           Membership in the bar may be terminated when a lawyer ceases to have good moral character. A lawyer may be disbarred for “grossly immoral conduct or by reason of his conviction of a crime involving moral turpitude”. A member of the bar should have moral integrity in addition to professional probity.

           Circumstances existed which should have aroused respondent’s suspicion that something was amiss in her relationship with Ui, and moved her to ask probing questions. Respondent was imprudent in managing her personal affairs. However, the fact remains that her relationship  with Carlos Ui, clothed as it was with what respondent believed was a valid marriage, cannot be considered as an immoral. For immorality connotes conduct that shows indifference to the moral norms of society and to opinion of good and respectable member of the community. Moreover, for such conduct to warrant disciplinary action, the same must be grossly immoral, that is it must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree.

            A member of the Bar and officer of the court is not only required to refrain from adulterous relationships . . . but must also so behave himself as to avoid scandalizing the public by creating the belief that he is flouting those moral standards. Respondents act of immediately distancing herself from Carlos Ui upon discovering his true civil status belies just that alleged moral indifference and proves that she had no intention of flaunting the law and the high moral standard of the legal profession.