Category: TIPS FOR TRIAL LAWYERS


TRIAL NOTE 0017: COURT ORDERS DIRECTING A PARTY TO FILE PLEADINGS MUST BE OBEYED.

SOURCE: MAGSAYSAY MARITIME CORPORATION AND/OR WASTFEL-LARSEN MANAGEMENT A/S VS. OBERTO S. LOBUSTA (G.R. NO. 177578, 25 JANUARY 2012, VILLARAMA, JR., J.) SUBJECT/S: LABOR CODE APPLIES TO CLAIMS UNDER POEA-APPROVED CONTRACTS; CONCEPT OF PERMANENT TOTAL DISABILITY; ORDERS OF COURT TO FILE PLEADINGS ARE NOT MERE REQUESTS, DISOBEDIENCE CONSTITUTES CONTEMPT. (BRIEF TITLE: MAGSAYSAY MARITIME VS. LOBUSTA)

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SUBJECT/DOCTRINE:

HOW SHOULD ORDERS REQUIRING THE FILING OF PLEADINGS BE VIEWED?

RESOLUTIONS REQUIRING COUNSELS TO FILE PLEADINGS ARE NOT TO BE CONSTRUED AS MERE REQUESTS, NOR SHOULD THEY BE COMPLIED WITH PARTIALLY, INADEQUATELY OR SELECTIVELY. COUNSELS ARE ALSO REMINDED THAT LAWYERS ARE CALLED UPON TO OBEY COURT ORDERS AND WILLFUL DISREGARD THEREOF WILL SUBJECT THE LAWYER NOT ONLY FOR CONTEMPT BUT TO DISCIPLINARY SANCTIONS AS WELL.

Before we end, we note petitioners’ repeated failure to comply with our resolutions, as well as the orders issued by the tribunals below. We remind petitioners and their counsels that our resolutions requiring them to file pleadings are not to be construed as mere requests, nor should they be complied with partially, inadequately or selectively. Counsels are also reminded that lawyers are called upon to obey court orders and willful disregard thereof will subject the lawyer not only for contempt but to disciplinary sanctions as well.35 We may also dismiss petitioners’ appeal for their failure to comply with any circular, directive or order of the Supreme Court without justifiable cause.36 In fact, we actually denied the instant petition on July 9, 2008 since petitioners failed to file the required reply to the comment filed by Lobusta.37 On reconsideration, however, we reinstated the petition.38 But when we required the parties to submit memoranda, petitioners again did not comply.39 As regards the proceedings below, they did not file their position paper on time, despite the extensions granted by the Labor Arbiter.40 Nor did they file the comment and memorandum required by the CA.41

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FIRST DIVISION

 

MAGSAYSAY MARITIME CORPORATION and/or WASTFEL-LARSEN MANAGEMENT A/S·,

Petitioners,

 

 

 

- versus -

G.R. No. 177578

 

Present:

 

CORONA, C.J.,

Chairperson,

LEONARDO-DE CASTRO,

DELCASTILLO,

VILLARAMA, JR., and

MENDOZA,* JJ.

 

OBERTO S. LOBUSTA,

Respondent.

Promulgated:

 

January 25, 2012

x- – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – -x

 

DECISION

 

VILLARAMA, JR., J.:

Petitioners appeal the Decision1 dated August 18, 2006 of the Court of Appeals (CA) in CA-G.R. SP No. 74035 and its Resolution2 dated April 19, 2007, denying the motion for reconsideration thereof. The CA declared that respondent is suffering from permanent total disability and ordered petitioners to pay him US$2,060 as medical allowance, US$60,000 as disability benefits and 5% of the total monetary award as attorney’s fees.

The facts follow:

Petitioner Magsaysay Maritime Corporation is a domestic corporation and the local manning agent of the vessel MV “Fossanger” and of petitioner Wastfel-Larsen Management A/S.3

Respondent Oberto S. Lobusta is a seaman who has worked for Magsaysay Maritime Corporation since 1994.4 In March 1998, he was hired again as Able Seaman by Magsaysay Maritime Corporation in behalf of its principal Wastfel-Larsen Management A/S. The employment contract5 provides for Lobusta’s basic salary of US$515 and overtime pay of US$206 per month. It also provides that the standard terms and conditions governing the employment of Filipino seafarers on board ocean-going vessels, approved per Department Order No. 33 of the Department of Labor and Employment and Memorandum Circular No. 55 of the Philippine Overseas Employment Administration (POEA Standard Employment Contract), both series of 1996, shall be strictly and faithfully observed.

Lobusta boarded MV “Fossanger” on March 16, 1998.6 After two months, he complained of breathing difficulty and back pain. On May 12, 1998, while the vessel was in Singapore, Lobusta was admitted at Gleneagles Maritime Medical Center and was diagnosed to be suffering from severe acute bronchial asthma with secondary infection and lumbosacral muscle strain. Dr. C K Lee certified that Lobusta was fit for discharge on May 21, 1998, for repatriation for further treatment.7

Upon repatriation, Lobusta was referred to MetropolitanHospital. The medical coordinator, Dr. Robert Lim, issued numerous medical reports regarding Lobusta’s condition. Lobusta was first seen by a Pulmonologist and an Orthopedic Surgeon on May 22, 1998.8 Upon reexamination by the Orthopedic Surgeon on August 11, 1998, he opined that Lobusta needs surgery, called decompression laminectomy,9 which was done on August 30, 1998.10 On October 12, 1998, Dr. Lim issued another medical report stating the opinion of the Orthopedic Surgeon that the prognosis for Lobusta’s recovery after the spine surgery is good. However, the Pulmonologist opined that Lobusta’s obstructive airway disease needs to be monitored regularly and that Lobusta needs to be on bronchodilator indefinitely. Hence, Lobusta should be declared disabled with a suggested disability grading of 10-20%.11 The suggestion was not heeded and Lobusta’s treatment continued.

On February 16, 1999, Lobusta was reexamined. Dr. Lim reported that Lobusta still complains of pain at the lumbosacral area although the EMG/NCV12 test revealed normal findings. Lobusta was prescribed medications and was advised to return on March 16, 1999 for re-evaluation.13

On February 19, 1999, Dr. Lim reported that Lobusta has been diagnosed to have a moderate obstructive pulmonary disease which tends to be a chronic problem, such that Lobusta needs to be on medications indefinitely. Dr. Lim also stated that Lobusta has probably reached his maximum medical care.14

Petitioners “then faced the need for confirmation and grading by a second opinion” and “it took the parties time to agree on a common doctor, until they agreed on Dr. Camilo Roa.”15 Dr. Roa’s clinical summary states that Lobusta’s latest follow-up check-up was on December 16, 1999; that Lobusta is not physically fit to resume his normal work as a seaman due to the persistence of his symptoms; that his asthma will remain chronically active and will be marked by intermittent exacerbations; and that he needs multiple controller medications for his asthma.16

As the parties failed to reach a settlement as to the amount to which Lobusta is entitled, Lobusta filed on October 2, 2000, a complaint17 for disability/medical benefits against petitioners before the National Labor Relations Commission (NLRC).

Sometime in October 2000, Magsaysay Maritime Corporation suggested that Lobusta be examined by another company-designated doctor for an independent medical examination. The parties agreed on an independent medical examination by Dr. Annette M. David, whose findings it was agreed upon, would be considered final.

On November 17, 2000, Dr. David interviewed and examined Lobusta.18 Pertinent portions of Dr. David’s report read:

xxx Based on the Classes of Respiratory Impairment as described in the American Medical Association’s Guidelines for the Evaluation of Permanent Impairment, this is equivalent to Class 2 or Mild Impairment of the Whole Person (level of impairment: 10-25% of the whole person). Given the persistence of the symptoms despite an adequate medical regimen, the impairment may be considered permanent.

The determination of disability and fitness for duty/return-to-work is more complex. During asymptomatic periods, Mr. Lobusta could conceivably be capable of performing the duties and responsibilities of an Able Seaman as listed in the memos provided by Pandiman (Duties of an Able Seaman on board an average vessel, January 26, 2000; and Deck Crew general Responsibilities, 95.11.01). However, consideration needs to be given to the following:

    • During the personal interview, Mr. Lobusta reported the need to use a self-contained breathing apparatus (SCBA) for “double bottom” work. While the use of these devices may not appreciably increase the work of breathing, an individual who develops an acute asthmatic attack under conditions requiring the use of an SCBA (oxygen-poor atmospheres) may be at increased risk for a poor outcome.
    • When out at sea, the medical facilities on board an average vessel may not be adequate to provide appropriate care for an acute asthmatic exacerbation. Severe asthmatic attacks require life-sustaining procedures such as endotracheal intubation and on occasion, mechanical ventilation. Asthma can be fatal if not treated immediately. The distance from and the time required to transport an individual having an acute asthmatic attack on a vessel at sea to the appropriate medical facilities on land are important factors in the decision regarding fitness for duty.
    • Several of the duties listed for an Able Seaman require the use of a variety of chemical substances (e.g. grease, solvents, cleaning agents, de-greasers, paint, etc.), many of which are known or suspected asthma triggers in sensitized individuals. The potential for an Able Seaman’s exposure to these asthma triggers is considerable.

Taken altogether, it is my opinion that Mr. Lobusta ought not to be considered fit to return to work as an Able Seaman. While the degree of impairment is mild, for the reasons stated above, it would be in the interest of all parties involved if he were to no longer be considered as capable of gainful employment as a seafarer. It is possible that he may perform adequately in another capacity, given a land-based assignment.19 (Stress in the original by Dr. David.)

As no settlement was reached despite the above findings, the Labor Arbiter ordered the parties to file their respective position papers.

On April 20, 2001, the Labor Arbiter rendered a decision20 ordering petitioners to pay Lobusta (a) US$2,060 as medical allowance, (b) US$20,154 as disability benefits, and (c) 5% of the awards as attorney’s fees.

The Labor Arbiter ruled that Lobusta suffered illness during the term of his contract. Hence, petitioners are liable to pay Lobusta his medical allowance for 120 days or a total of US$2,060. The Labor Arbiter held that provisions of the Labor Code, as amended, on permanent total disability do not apply to overseas seafarers. Hence, he awarded Lobusta US$20,154 instead of US$60,000, the maximum rate for permanent and total disability under Section 30 and 30-A of the 1996 POEA Standard Employment Contract. The Labor Arbiter also awarded attorney’s fees equivalent to 5% of the total award since Lobusta was assisted by counsel.21

Lobusta appealed. The NLRC dismissed his appeal and affirmed the Labor Arbiter’s decision. The NLRC ruled that Lobusta’s condition may only be considered permanent partial disability. While Dr. David suggested that Lobusta’s prospects as seafarer may have been restricted by his bronchial asthma, Dr. David also stated that the degree of impairment is mild. Said qualification puts Lobusta’s medical condition outside the definition of total permanent disability, said the NLRC.22 Later, the NLRC also denied Lobusta’s motion for reconsideration.

Unsatisfied, Lobusta brought the case to the CA under Rule 65 of the 1997 Rules of Civil Procedure, as amended. As aforesaid, the CA declared that Lobusta is suffering from permanent total disability and increased the award of disability benefits in his favor to US$60,000, to wit:

WHEREFORE, the petition for certiorari is hereby GRANTED. The challenged resolution of the NLRC dated 20 June 2002 is MODIFIED, declaring [Lobusta] to be suffering from permanent total disability.

[Petitioners] are ORDERED to pay [Lobusta] the following:

a) US$2,060.00 as medical allowance,

b) US$60,000.00 as disability benefits, and

c) 5% of the total monetary award as attorney’s fees

x x x x23

 

The CA faulted the NLRC for “plucking only particular phrases” from Dr. David’s report and said that the NLRC cannot wantonly disregard the full import of said report. The CA ruled that Lobusta’s disability brought about by his bronchial asthma is permanent and total as he had been unable to work since May 14, 1998 up to the present or for more than 120 days, and because Dr. David found him not fit to return to work as an able seaman.

Hence, this petition which raises two legal issues:

  1.  

WHETHER OR NOT THE POEA CONTRACT CONSIDERS THE MERE LAPSE OF MORE THAN ONE HUNDRED TWENTY (120) DAYS AS TOTAL AND PERMANENT DISABILITY.

 

  1.  

WHETHER OR NOT THERE IS LEGAL BASIS TO AWARD RESPONDENT LOBUSTA ATTORNEY’S FEES.24

Petitioners argue that the CA erred in applying the provisions of the Labor Code instead of the provisions of the POEA contract in determining Lobusta’s disability, and in ruling that the mere lapse of 120 days entitles Lobusta to total and permanent disability benefits. The CA allegedly erred also in holding them liable for attorney’s fees, despite the absence of legal and factual bases.

The petition lacks merit.

Petitioners are mistaken that it is only the POEA Standard Employment Contract that must be considered in determining Lobusta’s disability. In Palisoc v. Easways Marine, Inc.,25 we said that whether the Labor Code’s provision on permanent total disability applies to seafarers is already a settled matter. In Palisoc, we cited the earlier case of Remigio v. National Labor Relations Commission26 where we said (1) that the standard employment contract for seafarers was formulated by the POEA pursuant to its mandate under Executive Order No. 24727 “to secure the best terms and conditions of employment of Filipino contract workers and ensure compliance therewith,” and “to promote and protect the well-being of Filipino workers overseas”; (2) that Section 29 of the 1996 POEA Standard Employment Contract itself provides that all rights and obligations of the parties to the contract, including the annexes thereof, shall be governed by the laws of the Republic of the Philippines, international conventions, treaties and covenants where the Philippines is a signatory; and (3) that even without this provision, a contract of labor is so impressed with public interest that the Civil Code expressly subjects it to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects.28

In affirming the Labor Code concept of permanent total disability, Remigio further stated:

Thus, the Court has applied the Labor Code concept of permanent total disability to the case of seafarers. In Philippine Transmarine Carriers v. NLRC, seaman Carlos Nietes was found to be suffering from congestive heart failure and cardiomyopathy and was declared as unfit to work by the company-accredited physician. The Court affirmed the award of disability benefits to the seaman, citing ECC v. Sanico, GSIS v. CA, and Bejerano v. ECC that “disability should not be understood more on its medical significance but on the loss of earning capacity. Permanent total disability means disablement of an employee to earn wages in the same kind of work, or work of similar nature that [he] was trained for or accustomed to perform, or any kind of work which a person of [his] mentality and attainment could do. It does not mean absolute helplessness.” It likewise cited Bejerano v. ECC, that in a disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one’s earning capacity.

The same principles were cited in the more recent case of Crystal Shipping, Inc. v. Natividad. In addition, the Court cited GSIS v. Cadiz and Ijares v. CA that “permanent disability is the inability of a worker to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body.”

x x x x

These facts clearly prove that petitioner was unfit to work as drummer for at least 11-13 months – from the onset of his ailment on March 16, 1998 to 8-10 months after June 25, 1998. This, by itself, already constitutes permanent total disability. x x x29

In Vergara v. Hammonia Maritime Services, Inc.,30 we also said that the standard terms of the POEA Standard Employment Contract agreed upon are intended to be read and understood in accordance with Philippine laws, particularly, Articles 191 to 193 of the Labor Code, as amended, and the applicable implementing rules and regulations in case of any dispute, claim or grievance.

Thus, the CA was correct in applying the Labor Code provisions in Lobusta’s claim for disability benefits. The Labor Arbiter erred in failing to apply them.

Article 192(c)(1) under Title II, Book IV of the Labor Code, as amended, reads:

ART. 192. Permanent total disability. – x x x

x x x x

(c) The following disabilities shall be deemed total and permanent:

(1) Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided in the Rules;

x x x x

Section 2(b), Rule VII of the Implementing Rules of Title II, Book IV of the Labor Code, as amended, or the Amended Rules on Employees’ Compensation Commission (ECC Rules), reads:

Sec. 2. Disability. – x x x

(b) A disability is total and permanent if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period exceeding 120 days, except as otherwise provided for in Rule X of these Rules.

x x x x

Section 2, Rule X of the ECC Rules reads:

SEC. 2. Period of entitlement.— (a) The income benefit shall be paid beginning on the first day of such disability. If caused by an injury or sickness it shall not be paid longer than 120 consecutive days except where such injury or sickness still requires medical attendance beyond 120 days but not to exceed 240 days from onset of disability in which case benefit for temporary total disability shall be paid. However, the System may declare the total and permanent status at any time after 120 days of continuous temporary total disability as may be warranted by the degree of actual loss or impairment of physical or mental functions as determined by the System.

x x x x

According to Vergara,31 these provisions of the Labor Code, as amended, and implementing rules are to be read hand in hand with the first paragraph of Section 20(B)(3) of the 2000 POEA Standard Employment Contract which reads:

Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared fit to work or the degree of permanent disability has been assessed by the company-designated physician[,] but in no case shall this period exceed one hundred twenty (120) days.

Vergara continues:

As these provisions operate, the seafarer, upon sign-off from his vessel, must report to the company-designated physician within three (3) days from arrival for diagnosis and treatment. For the duration of the treatment but in no case to exceed 120 days, the seaman is on temporary total disability as he is totally unable to work. He receives his basic wage during this period until he is declared fit to work or his temporary disability is acknowledged by the company to be permanent, either partially or totally, as his condition is defined under the POEA Standard Employment Contract and by applicable Philippine laws. If the 120 days initial period is exceeded and no such declaration is made because the seafarer requires further medical attention, then the temporary total disability period may be extended up to a maximum of 240 days, subject to the right of the employer to declare within this period that a permanent partial or total disability already exists. The seaman may of course also be declared fit to work at any time such declaration is justified by his medical condition.

x x x x

As we outlined above, a temporary total disability only becomes permanent when so declared by the company physician within the periods he is allowed to do so, or upon the expiration of the maximum 240-day medical treatment period without a declaration of either fitness to work or the existence of a permanent disability.32

 

To be sure, there is one Labor Code concept of permanent total disability, as stated in Article 192(c)(1) of the Labor Code, as amended, and the ECC Rules. We also note that the first paragraph of Section 20(B)(3) of the 2000 POEA Standard Employment Contract was lifted verbatim from the first paragraph of Section 20(B)(3) of the 1996 POEA Standard Employment Contract, to wit:

Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared fit to work or the degree of permanent disability has been assessed by the company-designated physician, but in no case shall this period exceed one hundred twenty (120) days.

Applying the foregoing considerations, we agree with the CA that Lobusta suffered permanent total disability. On this point, the NLRC ruling was not in accord with law and jurisprudence.

Upon repatriation, Lobusta was first examined by the Pulmonologist and Orthopedic Surgeon on May 22, 1998. The maximum 240-day (8-month) medical-treatment period expired, but no declaration was made that Lobusta is fit to work. Nor was there a declaration of the existence of Lobusta’s permanent disability. On February 16, 1999, Lobusta was still prescribed medications for his lumbosacral pain and was advised to return for reevaluation. May 22, 1998 to February 16, 1999 is 264 days or 6 days short of 9 months.

On Lobusta’s other ailment, Dr. Roa’s clinical summary also shows that as of December 16, 1999, Lobusta was still unfit to resume his normal work as a seaman due to the persistence of his symptoms. But neither did Dr. Roa declare the existence of Lobusta’s permanent disability. Again, the maximum 240-day medical treatment period had already expired. May 22, 1998 to December 16, 1999 is 19 months or 570 days. In Remigio, unfitness to work for 11-13 months was considered permanent total disability. So it must be in this case. And Dr. David’s much later report that Lobusta “ought not to be considered fit to return to work as an Able Seaman” validates that his disability is permanent and total as provided under the POEA Standard Employment Contract and the Labor Code, as amended.

In fact, the CA has found that Lobusta was not able to work again as a seaman and that his disability is permanent “as he has been unable to work since 14 May 1998 to the present or for more than 120 days.” This period is more than eight years, counted until the CA decided the case in August 2006. On the CA ruling that Lobusta’s disability is permanent since he was unable to work “for more than 120 days,” we have clarified in Vergara that this “temporary total disability period may be extended up to a maximum of 240 days.”

Thus, we affirm the award to Lobusta of US$60,000 as permanent total disability benefits, the maximum award under Section 30 and 30-A of the 1996 POEA Standard Employment Contract. We also affirm the award of US$2,060 as sickness allowance which is not contested and appears to have been accepted by the parties.

On the matter of attorney’s fees, under Article 220833 of the Civil Code, attorney’s fees can be recovered in actions for recovery of wages of laborers and actions for indemnity under employer’s liability laws. Attorney’s fees are also recoverable when the defendant’s act or omission has compelled the plaintiff to incur expenses to protect his interest.34 Such conditions being present here, we affirm the award of attorney’s fees, which we compute as US$3,103 or 5% of US$62,060.

Before we end, we note petitioners’ repeated failure to comply with our resolutions, as well as the orders issued by the tribunals below. We remind petitioners and their counsels that our resolutions requiring them to file pleadings are not to be construed as mere requests, nor should they be complied with partially, inadequately or selectively. Counsels are also reminded that lawyers are called upon to obey court orders and willful disregard thereof will subject the lawyer not only for contempt but to disciplinary sanctions as well.35 We may also dismiss petitioners’ appeal for their failure to comply with any circular, directive or order of the Supreme Court without justifiable cause.36 In fact, we actually denied the instant petition on July 9, 2008 since petitioners failed to file the required reply to the comment filed by Lobusta.37 On reconsideration, however, we reinstated the petition.38 But when we required the parties to submit memoranda, petitioners again did not comply.39 As regards the proceedings below, they did not file their position paper on time, despite the extensions granted by the Labor Arbiter.40 Nor did they file the comment and memorandum required by the CA.41

Finally, we note that the Labor Arbiter improperly included Miguel Magsaysay as respondent in his decision.42 It should be noted that Lobusta sued Magsaysay Maritime Corporation and/or Wastfel-Larsen Management A/S in his complaint.43 He also named them as the respondents in his position paper.44 Petitioners are the proper parties.

WHEREFORE, we DENY the present petition for review on certiorari and AFFIRM the Decision dated August 18, 2006 of the Court of Appeals and its Resolution dated April 19, 2007 in CA-G.R. SP No. 74035. We ORDER petitioners Magsaysay Maritime Corporation and/or Wastfel-Larsen Management A/S to pay respondent Oberto S. Lobusta US$65,163 as total award, to be paid in Philippine pesos at the exchange rate prevailing during the time of payment.

With costs against the petitioners.

SO ORDERED.

 

MARTIN S. VILLARAMA, JR.

Associate Justice

 
 

WE CONCUR:

RENATO C. CORONA

Chief Justice

Chairperson

 

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

 

 
       

 

 

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

 

 

 

RENATO C. CORONA

Chief Justice

 

 

  • ·Also referred to as Westfal-Larsen Management A/S.

*Designated additional member per Raffle dated February 10, 2010 vice Associate Justice Lucas P. Bersamin who recused himself from the case due to prior action in the Court of Appeals.

1Rollo, pp. 34-44. Penned by Associate Justice Santiago Javier Ranada with the concurrence of Associate Justices Portia Aliño-Hormachuelos and Amelita G. Tolentino.

2Id. at 46-47. Penned by Associate Justice Portia Aliño-Hormachuelos with the concurrence of Associate Justices Lucas P. Bersamin (now a Member of this Court) and Amelita G. Tolentino.

3Id. at 11.

4Records, p. 50.

5Id. at 3.

6Rollo, p. 49.

7Id. at 34-35, 73.

8Id. at 74.

9Id. at 81.

10Id. at 83.

11Id. at 84-85.

12Electromyography/Nerve Conduction Velocity.

13Rollo, p. 91.

14Id. at 92.

15Id. at 53.

16Id. at 95.

17Records, p. 2.

18Rollo, pp. 101-103.

19Id. at 103.

20Id. at 43-57.

21Id. at 51-56.

22Id. at 334-336.

23Rollo, p. 43.

24Id. at 18.

25G.R. No. 152273, September 11, 2007, 532 SCRA 585, 592.

26G.R. No. 159887, April 12, 2006, 487 SCRA 190.

27Reorganizing the Philippine Overseas Employment Administration and for Other Purposes.

28Supra note 26 at 207.

29Id. at 207-208, 212.

30G.R. No. 172933, October 6, 2008, 567 SCRA 610, 626.

31Id. at 627.

32Id. at 628-629.

33ART. 2208. In the absence of stipulation, attorney’s fees and expenses of litigation, other than judicial costs, cannot be recovered except:

x x x x

(7) In actions for the recovery of wages of x x x laborers x x x;

(8) In actions for indemnity under workmen’s compensation and employer’s liability laws;

x x x x

34Remigio v. National Labor Relations Commission, supra note 26 at 215.

35Sebastian v. Bajar, A.C. No. 3731, September 7, 2007, 532 SCRA 435, 449.

36Rules of Court, Rule 56, Section 5. Grounds for dismissal of appeal. – x x x

x x x x

(e) Failure to comply with any circular, directive or order of the Supreme Court without justifiable cause.

x x x x

37Rollo, p. 300.

38Id. at 319.

39Id. at 337.

40Records, p. 48.

41CA rollo, pp. 182, 183-245.

42Records, p. 43.

43Id. at 2.

44Id. at 18.

 

TRIAL NOTE 0016: ON CONFLICT OF INTEREST IN LEGAL PRACTICE

 

SOURCE: LYDIA CASTRO-JUSTO VS. ATTY. RODOLFO T. GALING (A.C. NO. 6174, 16 NOVEMBER 2011, PEREZ, J.) SUBJECTS: CLIENT-LAWYER RELATIONSHIP; CONFLICT OF INTERESTS; WHEN ALLOWED.  (BRIEF TITLE: JUSTO VS. ATTY. GALING)

 

======================== 

 

SUBJECTS/ DOCTRINES/ DIGEST:

 

 

MS. JUSTO REQUESTED ATTY. GALING TO MAKE DEMAND LETTER TO MS. KOA FOR DISHONORED CHECKS. ATTY. GALING PREPARED DEMAND LETTER. WHEN THE CASE WAS FILED IN COURT ATTY. GALING REPRESENTED MS. KOA.  MS. JUSTO FILED DISBARMENT CASE AGAINST ATTY. GALING FOR CONFLICT OF INTEREST. ATTY. GALING ARGUED THAT THERE WAS NO CLIENT-LAWYER RELATIONSHIP BECAUSE SHE HAS NOT YET PAID HIM. ALSO IN THE CRIMINAL COMPLAINT IT WAS NOT HIS DEMAND LETTER USED BUT THAT OF ANOTHER LAWYER. WAS THERE ALREADY A CLIENT-LAWYER RELATIONSHIP?

 

 

 

YES.  THE RELATIONSHIP WAS ESTABLISHED THE MOMENT COMPLAINANT SOUGHT LEGAL ADVICE FROM RESPONDENT REGARDING THE DISHONORED CHECKS.  BY DRAFTING THE DEMAND LETTER RESPONDENT FURTHER AFFIRMED SUCH RELATIONSHIP.

 

 

        We are not persuaded.  A lawyer-client relationship can exist notwithstanding the close friendship between complainant and respondent.  The relationship was established the moment complainant sought legal advice from respondent regarding the dishonored checks.  By drafting the demand letter respondent further affirmed such relationship.  The fact that the demand letter was not utilized in the criminal complaint filed and that respondent was not eventually engaged by complainant to represent her in the criminal cases is of no moment.  As observed by the Investigating Commissioner, by referring to complainant Justo as “my client” in the demand letter sent to the defaulting debtor[1][10], respondent admitted the existence of the lawyer-client relationship.  Such admission effectively estopped him from claiming otherwise.

 

XXXXXXXXXXXXXXXXXXXXX

 

 

 

BUT THERE WAS NO PAYMENT YET OF PROFESSIONAL FEE. WILL THIS EXCULPATE ATTY. GALING FROM LIABILITY.

 

 

NO. ABSENCE OF MONETARY CONSIDERATION DOES NOT EXEMPT LAWYERS FROM COMPLYING WITH THE PROHIBITION AGAINST PURSUING CASES WITH CONFLICTING INTERESTS.

 

XXXXXXXXXXXXXXXXXX

 

 

WHEN DOES SUCH PROHIBITION AGAINST PURSUING CASES WITH CONFLICTING INTERESTS BEGINS AND WHEN DOES IT ENDS?

 

 

THE PROHIBITION ATTACHES FROM THE MOMENT THE ATTORNEY-CLIENT RELATIONSHIP IS ESTABLISHED AND EXTENDS BEYOND THE DURATION OF THE PROFESSIONAL RELATIONSHIP.[2][11]

 

Likewise, the non-payment of professional fee will not exculpate respondent from liability.  Absence of monetary consideration does not exempt lawyers from complying with the prohibition against pursuing cases with conflicting interests.  The prohibition attaches from the moment the attorney-client relationship is established and extends beyond the duration of the professional relationship.[3][11]  We held in Burbe v. Atty. Magulta[4][12] that it is not necessary that any retainer be paid, promised or charged; neither is it material that the attorney consulted did not afterward handle the case for which his service had been sought.[5][13]

 

 

XXXXXXXXXXXXXXXXXX

 

 

CAN THE LAWYER STILL REPRESENT CONFLICTING INTERESTS?

 

 

YES. BY WRITTEN CONSENT OF ALL CONCERNED GIVEN AFTER A FULL DISCLOSURE OF THE FACTS.

 

 

        Under Rule 15.03, Canon 15 of the Code of Professional Responsibility, “[a] lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.”  Respondent was therefore bound to refrain from representing parties with conflicting interests in a controversy.   By doing so, without showing any proof that he had obtained the written consent of the conflicting parties, respondent should be sanctioned.

 

XXXXXXXXXXXXXXX

 

 

 

WHAT IS THE GROUND FOR THE PROHIBITION AGAINST REPRSENTING CONFLICTING INTEREST?

 

 

 

PRINCIPLES OF PUBLIC POLICY AND GOOD TASTE. THE RELATIONSHIP IS ONE OF TRUST AND CONFIDENCE OF THE HIGHEST DEGREE. ONLY THEN CAN LITIGANTS ENTRUST THEIR SECRETS TO THEIR LAWYERS.

 

 

        The prohibition against representing conflicting interest is founded on principles of public policy and good taste.[6][14]   In the course of the lawyer-client relationship, the lawyer learns of the facts connected with the client’s case, including the weak and strong points of the case.  The nature of the relationship is, therefore, one of trust and confidence of the highest degree.[7][15] 

 

        It behooves lawyers not only to keep inviolate the client’s confidence, but also to avoid the appearance of treachery and double-dealing for only then can litigants be encouraged to entrust their secrets to their lawyers, which is of paramount importance in the administration of justice.[8][16]

 

 

WHEN IS THERE CONFLICT OF INTEREST?

 

 

IN THE FOLLOWING INSTANCES:

 

 

-                     WHEN LAWYER REPRESENTS INCONSISTENT INTERESTS OF TWO OR MORE OPPOSING PARTIES.

 

 

-                     WHEN THE  ACCEPTANCE OF THE NEW RETAINER WILL REQUIRE THE ATTORNEY TO PERFORM AN ACT WHICH WILL INJURIOUSLY AFFECT HIS FIRST CLIENT IN ANY MATTER IN WHICH HE REPRESENTS HIM

 

 

-                     WHEN   HE WILL BE CALLED UPON IN HIS NEW RELATION TO USE AGAINST HIS FIRST CLIENT ANY KNOWLEDGE ACQUIRED THROUGH THEIR CONNECTION.[9][20]

 

 

XXXXXXXXXXXXXXXXXXX

 

 

 

WHAT ARE  THE TESTS TO KNOW IF THERE IS CONFLICT OF INTEREST.

 

 

-       ONE TEST OF THE INCONSISTENCY OF INTERESTS IS WHETHER THE ACCEPTANCE OF A NEW RELATION WILL PREVENT AN ATTORNEY FROM THE FULL DISCHARGE OF HIS DUTY OF UNDIVIDED FIDELITY AND LOYALTY TO HIS CLIENT OR INVITE SUSPICION OF UNFAITHFULNESS OR DOUBLE DEALING IN THE PERFORMANCE THEREOF.[10][21]

 

 

-                     ANOTHER TEST IS ‘WHETHER OR NOT IN BEHALF OF ONE CLIENT, IT IS THE LAWYER’S DUTY TO FIGHT FOR AN ISSUE OR CLAIM, BUT IT IS HIS DUTY TO OPPOSE IT FOR THE OTHER CLIENT.  IN BRIEF, IF HE ARGUES FOR ONE CLIENT, THIS ARGUMENT WILL BE OPPOSED BY HIM WHEN HE ARGUES FOR THE OTHER CLIENT.’[11][18]

 

 

The case of Hornilla v. Atty. Salunat[12][17] is instructive on this concept, thus:

 

                There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties.  The test is ‘whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim, but it is his duty to oppose it for the other client.  In brief, if he argues for one client, this argument will be opposed by him when he argues for the other client.’[13][18]  This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used.[14][19]  Also, there is conflict of interests if the acceptance of the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation to use against his first client any knowledge acquired through their connection.[15][20] Another test of the inconsistency of interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof.[16][21]

 

 

XXXXXXXXXXXXXXXXXX

 

 

 

HOW ABOUT THE CONTENTION THAT ANOTHER LAWYER TOOK OVER THE CASE? WILL THIS NOT GIVE THE LAWYER THE RIGHT TO REPRESENT THE OPPOSING PARTY?

 

 

 

NO. THE TAKE- OVER OF A CLIENT’S CAUSE OF ACTION BY ANOTHER LAWYER DOES NOT GIVE THE FORMER LAWYER THE RIGHT TO REPRESENT THE OPPOSING PARTY.  IT IS NOT ONLY MALPRACTICE BUT ALSO CONSTITUTES A VIOLATION OF THE CONFIDENCE RESULTING FROM THE ATTORNEY-CLIENT RELATIONSHIP. 

 

 

        The excuse proffered by respondent that it was not him but Atty. Año who was eventually engaged by complainant will not exonerate him from the clear violation of Rule 15.03 of the Code of Professional Responsibility.  The take- over of a client’s cause of action by another lawyer does not give the former lawyer the right to represent the opposing party.  It is not only malpractice but also constitutes a violation of the confidence resulting from the attorney-client relationship. 

 

 

=========================

 

SECOND DIVISION

 

 

LYDIA CASTRO-JUSTO,

                              Complainant,

 

 

 

-  versus  -

 

 

 

 

 

ATTY. RODOLFO T. GALING,

                              Respondent.

  A.C. No. 6174

 

Present:

 

CARPIO,

      Chairperson,

BRION,

PEREZ,

SERENO, and

REYES, JJ.

 

Promulgated:

 

November 16, 2011

     

x- – – – – – – – – – – – – – – – – – – – – – – – – – – – –  – – – – – – – – – – – – – –  – – -x

 

D E C I S I O N

 

PEREZ, J.:

 

 

          Before us for consideration is Resolution No. XVIII-2007-196[17][1] of the Board of Governors, Integrated Bar of the Philippines (IBP), relative to the complaint[18][2] for disbarment filed by Lydia Castro-Justo against Atty. Rodolfo T. Galing. 

 

          Complainant Justo alleged that sometime in April 2003, she engaged the services of respondent Atty. Galing in connection with dishonored checks issued by Manila City Councilor Arlene W. Koa (Ms. Koa).  After she paid his professional fees, the respondent drafted and sent a letter to Ms. Koa demanding payment of the checks.[19][3]  Respondent advised complainant to wait for the lapse of the period indicated in the demand letter before filing her complaint.  

 

          On 10 July 2003, complainant filed a criminal complaint against Ms. Koa for estafa and violation of Batas Pambansa Blg. 22 before the Office of the City Prosecutor of Manila.[20][4]

 

          On 27 July 2003, she received a copy of a Motion for Consolidation[21][5] filed by respondent for and on behalf of Ms. Koa, the accused in the criminal cases, and the latter’s daughter Karen Torralba (Ms. Torralba).  Further, on 8 August 2003, respondent appeared as counsel for Ms. Koa before the prosecutor ofManila.

 

          Complainant submits that by representing conflicting interests, respondent violated the Code of Professional Responsibility.

 

          In his Comment,[22][6] respondent denied the allegations against him.  He admitted that he drafted a demand letter for complainant but argued that it was made only in deference to their long standing friendship and not by reason of a professional engagement as professed by complainant.  He denied receiving any professional fee for the services he rendered.  It was allegedly their understanding that complainant would have to retain the services of another lawyer.   He alleged that complainant, based on that agreement, engaged the services of Atty. Manuel A. Año.

 

          To bolster this claim, respondent pointed out that the complaint filed by complainant against Ms. Koa for estafa and violation of B.P. Blg. 22 was based not on the demand letter he drafted but on the demand letter prepared by Atty. Manuel A. Año.

 

          Respondent contended that he is a close friend of the opposing parties in the criminal cases.  He further contended that complainant Justo and Ms. Koa are likewise long time friends, as in fact, they are “comares” for more than 30 years since complainant is the godmother of Ms. Torralba.[23][7]  Respondent claimed that it is in this light that he accommodated Ms. Koa and her daughter’s request that they be represented by him in the cases filed against them by complainant and complainant’s daughter.  He maintained that the filing of the Motion for Consolidation which is a non-adversarial pleading does not evidence the existence of a lawyer-client relationship between him and Ms. Koa and Ms. Torralba.  Likewise, his appearance in the joint proceedings should only be construed as an effort on his part to assume the role of a moderator or arbiter of the parties.

 

          He insisted that his actions were merely motivated by an intention to help the parties achieve an out of court settlement and possible reconciliation.  He reported that his efforts proved fruitful insofar as he had caused Ms. Koa to pay complainant the amount of P50,000.00 in settlement of one of the two checks subject of I.S. No. 03G-19484-86.

 

          Respondent averred that the failure of Ms. Koa and Ms. Torralba to make good the other checks caused a lot of consternation on the part of complainant. This allegedly led her to vent her ire on respondent and file the instant administrative case for conflict of interest. 

 

          In a resolution dated 19 October 2007, the Board of Governors of the IBP adopted and approved with modification the findings of its Investigating Commissioner.  They found respondent guilty of violating Canon 15, Rule 15.03 of the Code of Professional Responsibility by representing conflicting interests and for his daring audacity and for the pronounced malignancy of his act.   It was recommended that he be suspended from the practice of law for one (1) year with a warning that a repetition of the same or similar acts will be dealt with more severely.[24][8] 

 

          We agree with the Report and Recommendation of the Investigating Commissioner,[25][9] as adopted by the Board of Governors of the IBP. 

 

          It was established that in April 2003, respondent was approached by complainant regarding the dishonored checks issued by Manila City Councilor Koa. 

 

          It was also established that on 25 July 2003, a Motion for Consolidation was filed by respondent in I.S. No. 03G-19484-86 entitled “Lydia Justo vs. Arlene Koa” and I.S. No. 03G-19582-84 entitled “Lani C. Justo vs. Karen Torralba”.   Respondent stated that the movants in these cases are mother and daughter while complainants are likewise mother and daughter and that these cases arose out from the same transaction.  Thus, movants and complainants will be adducing the same sets of evidence and witnesses.

 

          Respondent argued that no lawyer-client relationship existed between him and complainant because there was no professional fee paid for the services he rendered.  Moreover, he argued that he drafted the demand letter only as a personal favor to complainant who is a close friend.

 

          We are not persuaded.  A lawyer-client relationship can exist notwithstanding the close friendship between complainant and respondent.  The relationship was established the moment complainant sought legal advice from respondent regarding the dishonored checks.  By drafting the demand letter respondent further affirmed such relationship.  The fact that the demand letter was not utilized in the criminal complaint filed and that respondent was not eventually engaged by complainant to represent her in the criminal cases is of no moment.  As observed by the Investigating Commissioner, by referring to complainant Justo as “my client” in the demand letter sent to the defaulting debtor[26][10], respondent admitted the existence of the lawyer-client relationship.  Such admission effectively estopped him from claiming otherwise.

 

          Likewise, the non-payment of professional fee will not exculpate respondent from liability.  Absence of monetary consideration does not exempt lawyers from complying with the prohibition against pursuing cases with conflicting interests.  The prohibition attaches from the moment the attorney-client relationship is established and extends beyond the duration of the professional relationship.[27][11]  We held in Burbe v. Atty. Magulta[28][12] that it is not necessary that any retainer be paid, promised or charged; neither is it material that the attorney consulted did not afterward handle the case for which his service had been sought.[29][13]

 

          Under Rule 15.03, Canon 15 of the Code of Professional Responsibility, “[a] lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.”  Respondent was therefore bound to refrain from representing parties with conflicting interests in a controversy.   By doing so, without showing any proof that he had obtained the written consent of the conflicting parties, respondent should be sanctioned.

 

          The prohibition against representing conflicting interest is founded on principles of public policy and good taste.[30][14]   In the course of the lawyer-client relationship, the lawyer learns of the facts connected with the client’s case, including the weak and strong points of the case.  The nature of the relationship is, therefore, one of trust and confidence of the highest degree.[31][15] 

 

          It behooves lawyers not only to keep inviolate the client’s confidence, but also to avoid the appearance of treachery and double-dealing for only then can litigants be encouraged to entrust their secrets to their lawyers, which is of paramount importance in the administration of justice.[32][16]

 

          The case of Hornilla v. Atty. Salunat[33][17] is instructive on this concept, thus:

 

                   There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties.  The test is ‘whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim, but it is his duty to oppose it for the other client.  In brief, if he argues for one client, this argument will be opposed by him when he argues for the other client.’[34][18]  This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used.[35][19]  Also, there is conflict of interests if the acceptance of the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation to use against his first client any knowledge acquired through their connection.[36][20] Another test of the inconsistency of interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof.[37][21]

 

          The excuse proffered by respondent that it was not him but Atty. Año who was eventually engaged by complainant will not exonerate him from the clear violation of Rule 15.03 of the Code of Professional Responsibility.  The take- over of a client’s cause of action by another lawyer does not give the former lawyer the right to represent the opposing party.  It is not only malpractice but also constitutes a violation of the confidence resulting from the attorney-client relationship. 

 

          Considering that this is respondent’s first infraction, the disbarment sought in the complaint is deemed to be too severe.  As recommended by the Board of Governors of the IBP, the suspension from the practice of law for one (1) year is warranted.

 

          Accordingly, the Court resolved to SUSPEND Atty. Rodolfo T. Galing from the practice of law for one (1) year, with a WARNING that a repetition of the same or similar offense will warrant a more severe penalty. Let copies of this Decision be furnished all courts, the Office of the Bar Confidant and the Integrated Bar of thePhilippines for their information and guidance.  The Office of the Bar Confidant is directed to append a copy of this Decision to respondent’s record as member of the Bar.

 

 

SO ORDERED.

 

 

 

 

 

 

JOSE PORTUGAL PEREZ

Associate Justice

 

 

WE CONCUR:

 

 

 

ANTONIO T. CARPIO

Associate Justice

Chairperson

 

 

    

 

   ARTURO D. BRION               MARIA LOURDES P. A. SERENO        

       Associate Justice                                  Associate Justice

 

 

 

BIENVENIDO L. REYES

Associate Justice

 

 

 

 

 

 


 


[1][10]         Id. at 48.

[2][11]          Buted v. Hernando, A.C. No. 1359, 17 October 1991, 203 SCRA 1, 8.

[3][11]          Buted v. Hernando, A.C. No. 1359, 17 October 1991, 203 SCRA 1, 8.

[4][12]          432 Phil. 840 (2002).

[5][13]         Id. at 848.

[6][14]          Hilado v. David, 84 Phil 569, 578 (1949).

[7][15]          Maturan v. Gonzales, A.C. No. 2597, 12 March 1998, 287 SCRA 443, 446.

[8][16]          Supra note 14 at 579.

[9][20]          Id. at 111-112 citing Pineda, Legal and Judicial Ethics, p.199, citing Pierce v. Palmer,      31 R.I.     432.

[10][21]         Id. at 112 citing Agpalo, Legal Ethics, p. 220, citing in Re De la Rosa, 27 Phil.     258[1914]; Grievance Committee v. Rottner, 152 Conn. 59, 203 A 2d 82 [1954] and      Titania v. Ocampo, 200 SCRA 472 [1991].

[11][18]         Id. at 111 citing Pineda, Legal and Judicial Ethics, p. 199 [1999 ed.].

[12][17]         453 Phil. 108 (2003).

[13][18]         Id. at 111 citing Pineda, Legal and Judicial Ethics, p. 199 [1999 ed.].

[14][19]         Id. citing Hilado v. David, 84 Phil. 569[1949]; Nombrado v. Hernandez, 26 SCRA 13             [1968];    Bautista v. Barrios, 9 SCRA 695 [1963].

[15][20]         Id. at 111-112 citing Pineda, Legal and Judicial Ethics, p.199, citing Pierce v. Palmer,      31 R.I.     432.

[16][21]         Id. at 112 citing Agpalo, Legal Ethics, p. 220, citing in Re De la Rosa, 27 Phil.     258[1914]; Grievance Committee v. Rottner, 152 Conn. 59, 203 A 2d 82 [1954] and      Titania v. Ocampo, 200 SCRA 472 [1991].

[17][1]          Rollo, p. 45.

[18][2]         Id. at 1-2.

[19][3]         Id. at 3-4.

[20][4]         Id. at 5-6.

[21][5]         Id. at 10-11.

[22][6]         Id. at 14-22.

[23][7]         Id. at 16.

[24][8]         Id. at 45.

[25][9]         Id. at 46-53.

[26][10]        Id. at 48.

[27][11]         Buted v. Hernando, A.C. No. 1359, 17 October 1991, 203 SCRA 1, 8.

[28][12]         432 Phil. 840 (2002).

[29][13]        Id. at 848.

[30][14]         Hilado v. David, 84 Phil 569, 578 (1949).

[31][15]         Maturan v. Gonzales, A.C. No. 2597, 12 March 1998, 287 SCRA 443, 446.

[32][16]         Supra note 14 at 579.

[33][17]         453 Phil. 108 (2003).

[34][18]         Id. at 111 citing Pineda, Legal and Judicial Ethics, p. 199 [1999 ed.].

[35][19]         Id. citing Hilado v. David, 84 Phil. 569[1949]; Nombrado v. Hernandez, 26 SCRA 13             [1968];    Bautista v. Barrios, 9 SCRA 695 [1963].

[36][20]         Id. at 111-112 citing Pineda, Legal and Judicial Ethics, p.199, citing Pierce v. Palmer,      31 R.I.     432.

[37][21]         Id. at 112 citing Agpalo, Legal Ethics, p. 220, citing in Re De la Rosa, 27 Phil.     258[1914]; Grievance Committee v. Rottner, 152 Conn. 59, 203 A 2d 82 [1954] and      Titania v. Ocampo, 200 SCRA 472 [1991].

TRIAL NOTE 0015: THE DISBARMENT CASE AGAINST ATTY. ZENAIDA P. REYES.

 

SOURCE: MARITES E. FREEMAN VS. ATTY. ZENAIDA REYES (A.C. NO. 6246, 15 NOVEMBER 2011, PER CURIAM) SUBJECT: DISBARMENT; DUTY TO ACCOUNT FOR MONEYS RECEIVED FROM CLIENT; ADMIN CASE AGAINST LAWYERS SUI GENERIS; RETURNS EXPECTED FROM LAWYERING; FIDUCIARY RELATION BETWEEN CLIENT AND LAWYER. (BRIEF TITLE: FREEMAN VS. ATTY. REYES)

 

====================

 

DISPOSITIVE:

 

        WHEREFORE, respondent Atty. Zenaida P. Reyes is found guilty of gross misconduct and DISBARRED from the practice of law.  Let her name be stricken off the Roll of Attorneys.  This Decision is immediately executory.

 

        Let all the courts, through the Office of the Court Administrator, Integrated Bar of thePhilippines, and the Office of the Bar Confidant, be notified of this Decision and be it duly recorded in the personal file of the respondent. 

 

        Respondent is ORDERED to turn over to complainant Marites E. Freeman the proceeds of the insurance policies remitted to her by Lincoln Financial Group, in the amount of £10,489.57, and Eagle Star Life Assurance Company Limited, £471.06, or in the total amount of £10,960.63, which is approximately equivalent to P700,000.00, pursuant to the prevailing exchange rate at the time of the subject transaction.  

        SO ORDERED.

 

====================

 

 

SUBJECTS/DOCTRINES/DIGEST:

 

LESSONS:

 

WHEN YOU RECEIVE MONEYS FROM CLIENT FOR SPECIFIC PURPOSES, MAKE AN ACCOUNTING OF THE MONEY. IF YOU FAIL TO DO SO, THE PRESUMPTION IS YOU MISAPPROPRIATED THE MONEY.

 

NEVER GET MONEY FROM CLIENT FOR TRAVEL ABROAD TO ATTEND TO HIS CONCERNS THERE WHEN IN FACT YOUR PURPOSE IS TO ATTEND A CONVENTION.

 

NEVER REQUEST MONEY FOR LAGAY IN WRITING. THAT WRITTEN DOCUMENT CAN BE USED AGAINST YOU BECAUSE A LAWYER SHOULD NOT ENGAGE IN SOMETHING UNLAWFUL LIKE GIVING LAGAY.

 

XXXXXXXXXXXXXX

 

SC FOUND THAT  ATTY. REYES RECEIVED MONIES FROM HER CLIENT FOR SECURING INSURANCE CLAIMS OF CLIENT’S DECEASED HUSBAND. SHE FAILED TO PRESENT AN ACCOUNTING OF THE MONIES RECEIVED. SHE RECEIVED THE INSURANCE PROCEEDS EQUIVALENT TO P700,000.00 BUT FAILED TO REMIT THEM TO HER CLIENT.  SHE FALSIFIED AN SPA AUTHORIZING HER TO RECEIVE THE INSURANCE PROCEEDS. SHE RECEIVED MONEY FOR A TRIP TO UK TO PURSUE THE INSURANCE CLAIMS OF CLIENT BUT HER TRIP TO UK WAS ACTUALLY TO ATTEND AN INTERNATIONAL CONVENTION. WHAT IS THE APPROPRIATE SANCTION?

 

 

DISBARMENT.

 

 

The Court agrees with the observation of the Investigating Commissioner that complainant had sufficiently substantiated the charge of gross dishonesty against respondent, for having appropriated the insurance proceeds of the complainant’s deceased husband, and the recommendation of the IBP Board of Governors that respondent should be disbarred.

 

XXXXXXXXXXXXX

 

 

WHAT IS THE OBJECT OF DISBARMENT?

 

 

TO SAFEGUARD THE ADMINISTRATION OF JUSTICE. NOT SO MUCH TO PUNISH THE LAWYER.

XXXXXXXXXXXXXXXXXXXX

 

 

HOW IS ADMINISTRATION OF JUSTICE SAFEGUARDED?

 

 

-         BY PROTECTING THE COURT AND THE PUBLIC FROM THE MISCONDUCT OF OFFICERS OF THE COURT;

 

 

-         BY REMOVING  FROM THE PROFESSION OF LAW PERSONS WHOSE DISREGARD FOR THEIR OATH OF OFFICE HAVE PROVED THEM UNFIT TO CONTINUE DISCHARGING THE TRUST REPOSED IN THEM AS MEMBERS OF THE BAR.[1][33] 

 

 

        The object of a disbarment proceeding is not so much to punish the individual attorney himself, as to safeguard the administration of justice by protecting the court and the public from the misconduct of officers of the court, and to remove from the profession of law persons whose disregard for their oath of office have proved them unfit to continue discharging the trust reposed in them as members of the bar.[2][33] 

 

 

Xxxxxxxxxxxxxxxxxxxxxxxx

 

 

WHAT IS THE NATURE OF A DISCIPLINARY PROCEEDING AGAINST A LAWYER.

 

 

IT IS SUI GENERIS. IT IS NOT A CRIMINAL PROCEEDING NOR A CIVIL PROCEEDING. IT IS NOT CRIMINAL BECAUSE IT IS NOT INTENDED TO PUNISH. IT IS NOT CIVIL BECAUSE IT IS NOT INTENDED TO AWARD DAMAGES. THERE IS NO PROSECUTOR NOR PLAINTIFF.

 

XXXXXXXXXXXXXXXXX

 

 

WHAT IS THE REAL QUESTION TO BE DETERMINED IN SUCH PROCEEDING:

 

WHETHER OR NOT THE ATTORNEY IS STILL FIT TO BE ALLOWED THE PRIVILEGES AS SUCH.  THE COURT MERELY CALLS UPON THE LAWYER TO ACCOUNT FOR HIS ACTUATIONS. TRIAL IS NOT NECESSARY.

 

 

        A disciplinary proceeding against a lawyer is sui generis.  Neither purely civil nor purely criminal, it does not involve a trial of an action or a suit, but rather an investigation by the Court into the conduct of one of its officers.  Not being intended to inflict punishment, it is in no sense a criminal prosecution.  Accordingly, there is neither a plaintiff nor a prosecutor therein.  It may be initiated by the Court motu proprio.  Public interest is its primary objective, and the real question for determination is whether or not the attorney is still fit to be allowed the privileges as such.  Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court, with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice, by purging the profession of members who, by their misconduct, have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney.[3][34]

 

        Being a sui generis proceeding, the main disposition of this Court is the determination of the respondent’s administrative liability.  This does not include the grant of affirmative reliefs, such as moral and exemplary damages as prayed for by the complainant, which may very well be the subject of a separate civil suit for damages arising from the respondent’s wrongful acts, to be filed in the regular courts.

 

XXXXXXXXXXXXXXXXXX

 

 

ATTY. REYES RECEIVED P167,000.00 FROM THE CLIENT FOR SPECIFIC PURPOSES. WHAT WAS HER DUTY IN CONNECTION WITH SUCH MONEY?

 

 

SHE SHOULD HAVE MADE AN  ACCOUNTING OF THE MONEY. SPECIFICALLY, RULE 16.01 STATES THAT A LAWYER SHALL ACCOUNT FOR ALL MONEY OR PROPERTY COLLECTED OR RECEIVED FOR OR FROM THE CLIENT, AND RULE 16.03 THEREOF REQUIRES THAT A LAWYER SHALL DELIVER THE FUNDS AND PROPERTY OF A CLIENT WHEN DUE OR UPON DEMAND. 

 

 

        Be that as it may, assuming that respondent acted within the scope of her authority to represent the complainant in pursuing the insurance claims, she should never deviate from the benchmarks set by Canon 16 of the Code of Professional Responsibility which mandates that a lawyer shall hold in trust all moneys and properties of his client that may come into his possession.  Specifically, Rule 16.01 states that a lawyer shall account for all money or property collected or received for or from the client, and Rule 16.03 thereof requires that a lawyer shall deliver the funds and property of a client when due or upon demand. 

        When a lawyer receives money from the client for a particular purpose, the lawyer is bound to render an accounting to the client showing that the money was spent for a particular purpose.  And if he does not use the money for the intended purpose, the lawyer must immediately return the money to his client.[4][39]  In the present case, the cash/check voucher and the temporary receipts issued by respondent, with the letterhead of her law firm, Z.P. Reyes Law Office, indubitably showed that she received the total amount of P167,000.00[5][40] from the complainant, in connection with the handling of the latter’s case.  Respondent admitted having received money from the complainant, but claimed that the total amount of P120,000.00[6][41] she received was in accordance with their agreement.  Nowhere was it shown that respondent rendered an accounting or, at least, apprised the complainant of the actual expenses incurred.  This leaves a quandary as to the discrepancy in the actual amount that respondent should receive, supposedly pursuant to an agreement of engaging respondent to be her counsel, as there was absence of a formal contract of legal services. 

 

XXXXXXXXXXXXXXXXXX

 

 

ATTY. REYES ASKED P43,000.00 AS GREASE MONEY OR LAGAY. DOES THIS MAKE HER LIABLE ADMINISTRATIVELY EVEN IF IT IS CUSTOMARY?

 

 

YES. RULE 1.01 OF CANON 1 OF THE CODE OF PROFESSIONAL RESPONSIBILITY  STATES THAT A LAWYER SHALL NOT ENGAGE IN UNLAWFUL, DISHONEST, IMMORAL OR DECEITFUL CONDUCT.   

 

        Further, on December 4, 1998, complainant gave P50,000.00 to the respondent for the purpose of assisting her in claiming the insurance proceeds; however, per Application for United Kingdom Entry Clearance,[7][42] dated December 8, 1998, it showed that respondent’s primary purpose in traveling to London was to attend the International Law Conference in Russell Square, London.  It is appalling that respondent had the gall to take advantage of the benevolence of the complainant, then grieving for the loss of her husband, and mislead her into believing that she needed to go to London to assist in recovering the proceeds of the insurance policies.  Worse, respondent even inculcated in the mind of the complainant that she had to adhere to the nefarious culture of giving “grease money” or lagay, in the total amount of P43,000.00,[8][43] to the British Embassy personnel, as if it was an ordinary occurrence in the normal course of conducting official business transactions, as a means to expedite the visa applications.  This runs afoul the dictum in Rule 1.01 of Canon 1 of the Code of Professional Responsibility which states that a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.   

XXXXXXXXXXXXXXXXX

 

 

AN ESTAFA CASE FILED AGAINST ATTY. REYES BY THE COMPLAINANT FOR HER FAILURE TO ACCOUNT FOR MONEYS WAS WITHDRAWN FOR LACK OF EVIDENCE. DOES THIS EXONERATE HER ADMININSTRATIVELY?

 

 

NO. A CRIMINAL CASE IS DIFFERENT FROM AN ADMINISTRATIVE CASE. THE DISMISSAL OF A CRIMINAL CASE DOES NOT PRECLUDE THE CONTINUANCE OF A SEPARATE AND INDEPENDENT ACTION FOR ADMINISTRATIVE LIABILITY, AS THE WEIGHT OF EVIDENCE NECESSARY TO ESTABLISH THE CULPABILITY IS MERELY SUBSTANTIAL EVIDENCE.

 

        A criminal case is different from an administrative case, and each must be disposed of according to the facts and the law applicable to each case.[9][47]  Section 5, in relation to Sections 1[10][48] and 2,[11][49] Rule 133, Rules of Court states that in administrative cases, only substantial evidence is required, not proof beyond reasonable doubt as in criminal cases, or preponderance of evidence as in civil cases.  Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.  Applying the rule to the present case, the dismissal of a criminal case does not preclude the continuance of a separate and independent action for administrative liability, as the weight of evidence necessary to establish the culpability is merely substantial evidence.  Respondent’s defense that the criminal complaint for estafa against her was already dismissed is of no consequence.  An administrative case can proceed independently, even if there was a full-blown trial wherein, based on both prosecution and defense evidence, the trial court eventually rendered a judgment of acquittal, on the ground either that the prosecution failed to prove the respondent’s guilt beyond reasonable doubt, or that no crime was committed.  More so, in the present administrative case, wherein the ground for the dismissal of the criminal case was because the trial court granted the prosecution’s motion to withdraw the information and, a fortiori, dismissed the case for insufficiency of evidence.                                                                                                          

 

XXXXXXXXXXXXXXXX

 

 

SUPPOSE A LAWYER FAILS TO ACCOUNT FOR MONEYS GIVEN TO HIM. WHAT IS THE PRESUMPTION?

 

 

THE PRESUMPTION IS THAT HE MISAPPROPRIATED THE MONEY. A LAWYER’S FAILURE TO RETURN UPON DEMAND THE FUNDS OR PROPERTY HELD BY HIM ON BEHALF OF HIS CLIENT GIVES RISE TO THE PRESUMPTION THAT HE HAS APPROPRIATED THE SAME FOR HIS OWN USE TO THE PREJUDICE OF, AND IN VIOLATION OF THE TRUST REPOSED IN HIM BY, HIS CLIENT.

 

 

WHY?

 

 

BECAUSE THE RELATION BETWEEN ATTORNEY AND CLIENT IS HIGHLY FIDUCIARY IN NATURE.

 

 

 

        In Velez v. De Vera,[12][50] the Court ruled that the relation between attorney and client is highly fiduciary in nature.  Being such, it requires utmost good faith, loyalty, fidelity, and disinterestedness on the part of the attorney.  Its fiduciary nature is intended for the protection of the client.  The Canon of Professional Ethics provides that 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.  Money of the client or collected for the client, or other trust property coming into the possession of the lawyer, should be reported and accounted for promptly and should not, under any circumstances, be commingled with his own or be used by him.  Consequently, a lawyer’s failure to return upon demand the funds or property held by him on behalf of his client gives rise to the presumption that he has appropriated the same for his own use to the prejudice of, and in violation of the trust reposed in him by, his client.  It is a gross violation of general morality as well as of professional ethics; it impairs the public confidence in the legal profession and deserves punishment.  Lawyers who misappropriate the funds entrusted to them are in gross violation of professional ethics and are guilty of betrayal of public confidence in the legal profession. Those who are guilty of such infraction may be disbarred or suspended indefinitely from the practice of law.[13][51]  Indeed, lawyering is not a business.  It is a profession in which duty to public service, not money, is the primary consideration.[14][52]

 

XXXXXXXXXX

 

 

GIVE EXAMPLES OF CASES WHERE THE COURT STRIPPED LAWYERS OF THE PRIVILEGE TO PRACTICE THEIR PROFESSION FOR BREACH OF TRUST PERTAINING TO CLIENT’S MONEYS?

 

 

AS FOLLOWS:

 

 

 

In Manzano v. Soriano,[15][53] therein respondent, found guilty of grave misconduct (misappropriating the funds belonging to his client) and malpractice, represented therein complainant in a collection suit, but failed to turn over the amount of P50,000.00 as stipulated in their agreement and, to conceal the misdeed, executed a simulated deed of sale, with himself as the vendor and, at the same time, the notary public. 

 

 

In Lemoine v. Balon, Jr.,[16][54] therein respondent, found guilty of malpractice, deceit, and gross misconduct, received the check corresponding to his client’s insurance claim, falsified the check and made it payable to himself, encashed the same, and appropriated the proceeds. 

 

 

XXXXXXXXXXXXXXXXXXX

 

 

WHAT ARE EXPECTED RETURNS OF LAW PRACTICE?

 

 

SIMPLE REWARDS FOR A JOB DONE OR SERVICE RENDERED.

 

 

NOT PROFITS BECAUSE LAW ADVOCACY IS NOT CAPITAL WHICH YIELDS PROFITS.

 

 

        Law advocacy, it has been stressed, is not capital that yields profits.  The returns it births are simple rewards for a job done or service rendered.  It is a calling that, unlike mercantile pursuits which enjoy a greater deal of freedom from government interference, is impressed with public interest, for which it is subject to State regulation.[17][55]  Respondent’s repeated reprehensible acts of employing chicanery and unbecoming conduct to conceal her web of lies, to the extent of milking complainant’s finances dry, and deceitfully arrogating upon herself the insurance proceeds that should rightfully belong to complainant, in the guise of rendering legitimate legal services, clearly transgressed the norms of honesty and integrity required in the practice of law.  This being so, respondent should be purged from the privilege of exercising the noble legal profession.   

 

 

 

=====================

 

 

Republic of thePhilippines

Supreme Court

Manila

 

EN BANC

 

 

MARITES E. FREEMAN,                                                                                                

                      Complainant,

 

 

 

 

 

 

 

 

 

- versus -

 

 

 

 

 

 

 

 

 

 

ATTY. ZENAIDA P. REYES,

                             Respondent.                                                   

A.C. No. 6246   

[Formerly CBD No. 00-730]

 

Present:

 

    CORONA, C.J.,*

    CARPIO,

    VELASCO, JR.,*

    LEONARDO-DE CASTRO,**

    BRION,

    PERALTA,

    BERSAMIN,*

    DELCASTILLO,**

    ABAD,

    VILLARAMA, JR.,

    PEREZ,

    MENDOZA,

    SERENO,

REYES, and

PERLAS-BERNABE, JJ.

 

Promulgated:

 

        November 15, 2011

 

x—————————————————————————————x

 

D E C I S I O N

 

 

PER CURIAM:

 

          Before this Court is an administrative complaint, filed by complainant Marites E. Freeman, seeking the disbarment of respondent Atty. Zenaida P. Reyes, for gross dishonesty in obtaining money from her, without rendering proper legal services, and appropriating the proceeds of the insurance policies of her deceased husband.  Complainant also seeks recovery of all the amounts she had given to respondent and the insurance proceeds, which was remitted to the latter, with prayer for payment of moral and exemplary damages.

 

          In her sworn Complaint-Affidavit[18][1] dated April 7, 2000, filed on May 10, 2000, complainant alleged that her husband Robert Keith Freeman, a British national, died in London on October 18, 1998.  She and her son,  Frank Lawrence applied for visas, to enable them to attend the wake and funeral, but their visa applications were denied.  Complainant engaged the services of respondent who, in turn, assured her that she would help her secure the visas and obtain the death benefits and other insurance claims due her.  Respondent told complainant that she had to personally go to London to facilitate the processing of the claims, and demanded that the latter bear all expenses for the trip.  On December 4, 1998, she gave respondent the amount of P50,000.00.  As acknowledgment for the receipt of P47,500.00 for service charge, tax, and one round trip ticket to London, respondent gave her a Cash/Check Voucher,[19][2] issued by Broadway Travel, Inc., but on the right margin thereof, the notations in the amount of “P50,000.00” and the date “12-5-98” were written and duly initialled.  On December 9, 1998, she acceded into giving respondent the amount of P20,000.00 for legal costs in securing the visas, as shown by the Temporary Receipt[20][3] bearing said date, issued by Z.P. Reyes Law Office (respondent’s law firm).  On December 18, 1998, she went to see respondent to follow-up the visa applications, but the latter asked for the additional amount of P10,000.00 for travel expenses, per Temporary Receipt[21][4] bearing said date, issued by respondent’s law firm.  After several phone calls inquiring about the status of the visa applications, respondent told her, “Mahirap gapangin ang pagkuha ng visa, kasi blacklisted at banned ka sa Embassy.”  (It is difficult to railroad the process of securing visa, because you are blacklisted and banned by the Embassy).  Sometime in February 1999, respondent told her that to lift the travel ban on her, she should shell out P18,000.00 as “panlagay” or “grease money” to bribe some staff of the British Embassy.  After a week, respondent informed her that the ban was lifted, but the visas would be issued on a later date, as she had convinced the British Embassy to issue resident visas instead of tourist visas.  Respondent told her that to expedite the release of the resident visas, she should again give P20,000.00 and a bottle of wine, worth P5,000.00, as “grease money” to bribe the British Embassy personnel.  After several weeks, respondent told her that the period for visa applications had lapsed, and that another amount of P18,000.00 was needed to reinstate the same.  Later, respondent asked for P30,000.00 as legal costs, per Temporary Receipt,[22][5] dated April 19, 1999, to be used for booking the former’s flight to London, and P39,000.00 for legal costs, per Temporary Receipt[23][6] dated May 13, 1999, to cover the expenses for the plane tickets.  Both temporary receipts were issued by respondent’s law firm. 

 

          Complainant said that despite repeated follow-ups with respondent, nothing came out.  Instead, she received a picture of her husband’s burial, sent by one Stanley Grist, a friend of the deceased.  She later learned that respondent left for Londonalone, without informing her about it.  Respondent explained that she needed to go to Londonto follow-up the insurance claims, and warned her not to communicate with Grist who allegedly pocketed the proceeds of her husband’s insurance policy.  She told respondent that she received a letter[24][7] dated March 9, 1999 from one Martin Leigh, an Officer of H.M. Coroner’s Court, London, informing her about the arrangements for the funeral and that her late husband was covered by three insurance policies, to wit:  Nationwide Building Society (Account Number 0231/471 833 630), Lincoln Assurance Company (British National Life Policy No. PP/85/00137851), and Scottish Equitable PLC (Policy No. 2779512).[25][8] Respondent offered to help and assured her that representations with the insurance companies had earlier been made, so that the latter would be receiving the insurance proceeds soon. 

 

          According to the complainant, respondent required her to affix her signature in a Special Power of Attorney (SPA),[26][9] dated November 6, 1998 [first SPA], which would authorize the respondent to follow-up the insurance claims.  However, she found out that the SPA [first SPA] she signed was not notarized, but another SPA,[27][10] dated April 6, 1999, was notarized on April 30, 1999 [second SPA], and that her signature therein was forged.  Later, she came across a similar copy of the SPA,[28][11] dated April 6, 1999, also notarized on April 30, 1999 [third SPA], but this time, additionally bearing the signatures of two witnesses.  She said that without her knowledge and consent, respondent used the third SPA, notarized on April 30, 1999, in her correspondence with the insurance companies inLondon. 

 

          Complainant discovered that in an undated letter,[29][12] addressed to one Lynn O. Wilson of Scottish Equitable PLC (Policy No. 2779512), respondent made representations that her husband left no will and that she had no verified information as to the total value of her husband’s estate and the existence of any property in London that would be subjected to Grant of Representation.  Said letter requested that complainant be advised on the value for probate in the amount of £5231.35 and the procedure for its entitlement.  Respondent added therein that “As to the matter of the installments due, as guaranteed by Mr. Freeman’s policy, Mrs. Freeman requests that the remittance be sent directly to Account No. 0148-27377-7 Far East Bank, Diliman Branch, with business address at Malakas St. Barangay Central District, Quezon City, Philippines under the account name:  Reyes/Mendiola, which serves as her temporary account until further notice.”

 

          Subsequently, in a letter[30][13] dated July 29, 1999, addressed to one Andrea Ransom of Lincoln Financial Group (PP/8500137851), respondent, declaring that she is the “Counsel/Authorized Representative [of the complainant], per SPA dated April 20, 1999 [should be April 30, 1999],” replied that she had appended the documents required (i.e., marriage certificate and birth certificate), in her previous letter,[31][14] dated April 20, 1999, to the said insurance company; that pursuant to an SPA[32][15] executed in her favor, all communications pertaining to complainant should be forwarded to her law firm; that she sought clarification on whether complainant is entitled to death benefits under the policy and, if so, the amount due and the requirements to be complied with; and that in the absence of a Grant of Probate (i.e., the deceased having left no will), she “enclosed an alternative document [referring to the Extrajudicial Settlement[33][16] dated June 1, 1999, notarized by respondent] in support of the claim of the surviving spouse (Mrs. Freeman) and their sole child (Frank Lawrence Freeman).”  In the same letter, respondent reiterated that complainant “requests that any amount of monies due or benefits accruing, be directly deposited to Account No. 0148-27377-7 at Far East Bank, Diliman Branch, Malakas St., Quezon City, Philippines under Reyes/Mendiola, which serves as her temporary account until further notice.” 

 

          Complainant declared that in November 1999, she made a demand upon the respondent to return her passport and the total amount of P200,000.00 which she gave for the processing of the visa applications.  Not heeding her demand, respondent asked her to attend a meeting with the Consul of the British Embassy, purportedly to discuss about the visa applications, but she purposely did not show up as she got disgusted with the turn of events.  On the supposed rescheduled appointment with the British Consul, respondent, instead, brought her to Airtech Travel and Tours, and introduced her to one Dr. Sonny Marquez, the travel agency’s owner, who assured her that he would help her secure the visas within a week.  Marquez made her sign an application for visa and demanded the amount of P3,000.00.  After a week, she talked to one Marinez Patao, the office secretary of respondent’s law firm, who advised her to ask respondent to return the total amount of P200,000.00.  

          In her Counter-Affidavit/Answer[34][17] dated June 20, 2000, respondent countered that in 1998, complainant, accompanied by former Philippine Sports Commission (PSC) Commissioner Josefina Bauzon and another woman whose identity was not ascertained, sought legal advice regarding the inheritance of her deceased husband, a British national.[35][18]  She told complainant to submit proof of her marriage to the deceased, birth certificate of their son, and other documents to support her claim for the insurance proceeds.  She averred that before she accepted the case, she explained to complainant that she would be charging the following amounts:  acceptance fee of P50,000.00, P20,000.00 for initial expenses, and additional amount of P50,000.00 on a contingent basis.  She said complainant agreed to these rates and, in fact, readily paid her the said amounts.  With an SPA,[36][19] dated April 6, 1999 and notarized on April 30, 1999 [second SPA], having been executed in her favor, she made preliminary communications with the insurance companies inLondon regarding complainant’s claims.  Having received communications from said insurance companies, she stated that complainant offered, which she accepted, to shoulder her plane ticket and the hotel accommodation, so that she can personally attend to the matter.  She left forLondon in May 1999 and, upon her return, she updated the complainant about the status of her claims. 

 

          As to the visa arrangements, respondent said that when she met with complainant, she asked her why she had not left for London, and the latter replied that her contacts with the embassy had duped her.  She explained to complainant that she could refer her to a travel consultant who would handle the visa arrangements for a fee, to which the latter agreed.  She stated that when complainant acceded to such arrangement, she accompanied her, in December 1999, to a travel consultant of Airtech Travel and Tours, who found out that complainant’s previous visa applications had been denied four times, on the ground of falsity of information.  Thereafter, complainant was able to secure a visa through the help of the travel consultant, who charged her a “professional fee” of P50,000.00.  She added that she had no participation in the foregoing transactions, other than referring complainant to the said travel consultant.

          With regard to the alleged falsified documents, respondent denied knowledge about the existence of the same, and declared that the SPA,[37][20] dated April 6, 1999, which was notarized on April 30, 1999 [second SPA], was her basis for communications with the insurance companies in London.  She stated that in her absence, complainant, through wily representations, was able to obtain the case folder from Leah Buama, her office secretary, and never returned the same, despite repeated demands.  She said that she was unaware of the loss of the case folder as she then had no immediate need of it.  She also said that her secretary failed to immediately report about the missing case folder prior to taking a leave of absence, so as to attend to the financial obligations brought about by her mother’s lingering ailment and consequent death.[38][21]  Despite repeated requests, complainant failed to return the case folder and, thus, the law firm was prevented from pursuing the complainant’s insurance claims.  She maintained that through complainant’s own criminal acts and machinations, her law office was prevented from effectively pursuing her claims.  Between January to February 2000, she sent complainant a billing statement which indicated the expenses incurred[39][22] by the law firm, as of July 1999; however, instead of settling the amount, the latter filed a malicious suit against her to evade payment of her obligations.  

 

 

 

          On January 19, 2001, complainant filed a Motion Submitting the Instant Case for Immediate Resolution with Comments on Respondent’s Answer, alleging, among others, that upon seeing the letter[40][23] dated March 9, 1999 of the Coroner’s Court, respondent began to show interest and volunteered to arrange for the insurance claims; that no acceptance fee was agreed upon between the parties, as the amounts earlier mentioned represented the legal fees and expenses to be incurred attendant to the London trip; that the parties verbally agreed to a 20% contingent fee out of the total amount to be recovered; that she obtained the visas with the assistance of a travel consultant recommended by respondent; that upon return from abroad, respondent never informed her about the arrangements with the insurance companies in London that remittances would be made directly to the respondent’s personal account at Far East Bank; that the reason why respondent went to London was primarily to attend the International Law Conference, not solely for her insurance claims, which explained why the receipt for the P50,000.00, which she gave, bore the letterhead of Broadway Travel, Inc. (in the amount of P47,500.00) and that she merely made a handwritten marginal note regarding the receipt of the amount of P50,000.00; that with the use of an SPA [referring to the second SPA] in favor of the respondent, bearing her forged signature, the amount of £10,546.7 [should be £10,960.63],[41][24] or approximately equivalent to P700,000.00, was remitted to the personal bank account of respondent, but the same was never turned over to her, nor was she ever informed about it; and that she clarified that she never executed any SPA that would authorize respondent to receive any money or check due her, but that the only SPA [first SPA] she executed was for the purpose of representing her in court proceedings. 

 

          Meanwhile, respondent filed a criminal complaint[42][25] for malicious mischief, under Article 327 of the Revised Penal Code, against complainant and one Pacita Mamaril (a former client of respondent), for allegedly barging into the law office of the former and, with the use of a pair of scissors, cut-off the cords of two office computer keyboards and the line connections for the refrigerator, air conditioning unit, and electric fan, resulting in damage to office equipment in an estimated amount of P200,000.00.  In the Resolution,[43][26] dated July 31, 2000, the Assistant City Prosecutor of Quezon City recommended that the complaint be dismissed for insufficiency of evidence.  The case was subsequently dismissed due to lack of evidence and for failure of respondent to appear during the preliminary investigation of the case.[44][27]

 

          Thereafter, complainant filed a criminal case for estafa, under Article 315, paragraph 2 (a) of the Revised Penal Code, against respondent, docketed as Criminal Case No. Q-02-108181, before the Regional Trial Court of Quezon City, Branch 83.  On Motion for Reinvestigation by respondent, the City Prosecutor of Quezon City, in the Resolution[45][28] dated October 21, 2002, recommended that the information, dated February 8, 2002, for estafa be withdrawn, and that the case be dismissed, for insufficiency of evidence.  On November 6, 2002, the Assistant City Prosecutor filed a Motion to Withdraw Information.[46][29]  Consequently, in the Order[47][30] dated November 27, 2002, the trial court granted the withdrawal of the information, and dismissed the case.

 

          In the Report and Recommendation[48][31] dated August 28, 2003, Investigating Commissioner Milagros V. San Juan of the Integrated Bar of the Philippines (IBP) Commission on Bar Discipline found respondent to have betrayed the trust of complainant as her client, for being dishonest in her dealings and appropriating for herself the insurance proceeds intended for complainant.   The Investigating Commissioner pointed out that despite receipt of the approximate amount of P200,000.00, respondent failed to secure the visas for complainant and her son, and that through deceitful means, she was able to appropriate for herself the proceeds of the insurance policies of complainant’s husband. Accordingly, the Investigating Commissioner recommended that respondent be suspended from the practice of law for the maximum period allowed under the law, and that she be ordered to turn over to complainant the amounts she received from theLondon insurance companies.  

 

          On September 27, 2003, the IBP Board of Governors, in Resolution No. XVI-2003-166,[49][32] adopted and approved the recommendation of the Investigating Commissioner, with modification that respondent be disbarred.

          The Court agrees with the observation of the Investigating Commissioner that complainant had sufficiently substantiated the charge of gross dishonesty against respondent, for having appropriated the insurance proceeds of the complainant’s deceased husband, and the recommendation of the IBP Board of Governors that respondent should be disbarred.

          The object of a disbarment proceeding is not so much to punish the individual attorney himself, as to safeguard the administration of justice by protecting the court and the public from the misconduct of officers of the court, and to remove from the profession of law persons whose disregard for their oath of office have proved them unfit to continue discharging the trust reposed in them as members of the bar.[50][33] 

 

          A disciplinary proceeding against a lawyer is sui generis.  Neither purely civil nor purely criminal, it does not involve a trial of an action or a suit, but rather an investigation by the Court into the conduct of one of its officers.  Not being intended to inflict punishment, it is in no sense a criminal prosecution.  Accordingly, there is neither a plaintiff nor a prosecutor therein.  It may be initiated by the Court motu proprio.  Public interest is its primary objective, and the real question for determination is whether or not the attorney is still fit to be allowed the privileges as such.  Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court, with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice, by purging the profession of members who, by their misconduct, have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney.[51][34]

 

          Being a sui generis proceeding, the main disposition of this Court is the determination of the respondent’s administrative liability.  This does not include the grant of affirmative reliefs, such as moral and exemplary damages as prayed for by the complainant, which may very well be the subject of a separate civil suit for damages arising from the respondent’s wrongful acts, to be filed in the regular courts.

 

          In the absence of a formal contract, complainant engaged the legal services of respondent to assist her in securing visa applications and claiming the insurance proceeds of her deceased husband.  There are conflicting allegations as to the scope of authority of respondent to represent the complainant.  A perusal of the [first] SPA,[52][35] dated November 6, 1998, which was not notarized, showed that complainant merely authorized respondent to represent her and her son, in order to protect their rights and interests, in the extrajudicial and/or judicial proceeding and the possibility of any amicable settlement, relating to the estate of her deceased husband, both in the Philippines and United Kingdom.  The [second] SPA,[53][36] dated April 6, 1999 and notarized on April 30, 1999, allegedly bearing the forged signature of complainant, in addition to the foregoing representations, authorized respondent to appear and represent the complainant, in connection with her insurance claims, and to receive monies and/or encash treasury warrants, checks arising from said claims, deposit the same, and dispose of such funds as may be necessary for the successful pursuit of the claims.  The [third] SPA,[54][37] also dated April 6, 1999 and notarized on April 30, 1999, allegedly bearing the forged signature of complainant, but additionally bearing the signatures of two witnesses, was a faithful reproduction of the second SPA, with exactly the same stipulations.  The three SPAs, attached to the pleadings of the parties and made integral parts of the records of the case, were not certified true copies and no proof was adduced to verify their genuineness and authenticity.  Complainant repudiates the representation of respondent in her behalf with regard to the insurance claims; however, the admission of respondent herself, as lawyer, that she received payment from complainant, her client, constitutes sufficient evidence to establish a lawyer-client relationship.[55][38] 

 

          Be that as it may, assuming that respondent acted within the scope of her authority to represent the complainant in pursuing the insurance claims, she should never deviate from the benchmarks set by Canon 16 of the Code of Professional Responsibility which mandates that a lawyer shall hold in trust all moneys and properties of his client that may come into his possession.  Specifically, Rule 16.01 states that a lawyer shall account for all money or property collected or received for or from the client, and Rule 16.03 thereof requires that a lawyer shall deliver the funds and property of a client when due or upon demand. 

          When a lawyer receives money from the client for a particular purpose, the lawyer is bound to render an accounting to the client showing that the money was spent for a particular purpose.  And if he does not use the money for the intended purpose, the lawyer must immediately return the money to his client.[56][39]  In the present case, the cash/check voucher and the temporary receipts issued by respondent, with the letterhead of her law firm, Z.P. Reyes Law Office, indubitably showed that she received the total amount of P167,000.00[57][40] from the complainant, in connection with the handling of the latter’s case.  Respondent admitted having received money from the complainant, but claimed that the total amount of P120,000.00[58][41] she received was in accordance with their agreement.  Nowhere was it shown that respondent rendered an accounting or, at least, apprised the complainant of the actual expenses incurred.  This leaves a quandary as to the discrepancy in the actual amount that respondent should receive, supposedly pursuant to an agreement of engaging respondent to be her counsel, as there was absence of a formal contract of legal services. 

          Further, on December 4, 1998, complainant gave P50,000.00 to the respondent for the purpose of assisting her in claiming the insurance proceeds; however, per Application for United Kingdom Entry Clearance,[59][42] dated December 8, 1998, it showed that respondent’s primary purpose in traveling to London was to attend the International Law Conference in Russell Square, London.  It is appalling that respondent had the gall to take advantage of the benevolence of the complainant, then grieving for the loss of her husband, and mislead her into believing that she needed to go to London to assist in recovering the proceeds of the insurance policies.  Worse, respondent even inculcated in the mind of the complainant that she had to adhere to the nefarious culture of giving “grease money” or lagay, in the total amount of P43,000.00,[60][43] to the British Embassy personnel, as if it was an ordinary occurrence in the normal course of conducting official business transactions, as a means to expedite the visa applications.  This runs afoul the dictum in Rule 1.01 of Canon 1 of the Code of Professional Responsibility which states that a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.   

 

          More importantly, apart from her bare denials that no remittance was made to her personal bank account, as shown by the monthly transaction report (covering January to December for the years 2000-2001),[61][44] respondent never attempted to reconcile the discrepancy, or give a satisfactory explanation, as to why she failed to render an accounting, on the proceeds of the insurance policies that should rightfully belong to the complainant vis-á-vis the correspondence by the insurance companies based in London, pertaining to the remittance of the following amounts to the respondent’s personal bank account, to wit:  Per letter[62][45] dated November 23, 2000, from one Rupesh Majithia, Administrator, Customer Services Department of Lincoln Financial Group, addressed to complainant, stating, among others, that “An amount of £10,489.57 was paid out under the Power of Attorney on 27th September 2000),” and per letter,[63][46] dated April 28, 2000, from one Jeff Hawkes, Customer Services Claims (CLD), of the Eagle Star Life Assurance Company Limited, addressed to one Andrea Ransom of the Lincoln Financial Group, The Quays, stating, among others, that “I can confirm that a death claim was made on the policy on 13 October 1999 when an amount of £471.06 was sent by International Moneymover to the client’s legal representative, ZP Reyes Law Office of Quezon City, Philippines.”  Clearly, there is no doubt that the amounts of £10,489.57 and £471.06 were remitted to respondent through other means of international transactions, such as the International Moneymover, which explains why no direct remittance from the insurance companies in London could be traced to the personal bank account of respondent, per monthly transaction report, covering January to December for the years 2000-2001.

 

 

 

          A criminal case is different from an administrative case, and each must be disposed of according to the facts and the law applicable to each case.[64][47]  Section 5, in relation to Sections 1[65][48] and 2,[66][49] Rule 133, Rules of Court states that in administrative cases, only substantial evidence is required, not proof beyond reasonable doubt as in criminal cases, or preponderance of evidence as in civil cases.  Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.  Applying the rule to the present case, the dismissal of a criminal case does not preclude the continuance of a separate and independent action for administrative liability, as the weight of evidence necessary to establish the culpability is merely substantial evidence.  Respondent’s defense that the criminal complaint for estafa against her was already dismissed is of no consequence.  An administrative case can proceed independently, even if there was a full-blown trial wherein, based on both prosecution and defense evidence, the trial court eventually rendered a judgment of acquittal, on the ground either that the prosecution failed to prove the respondent’s guilt beyond reasonable doubt, or that no crime was committed.  More so, in the present administrative case, wherein the ground for the dismissal of the criminal case was because the trial court granted the prosecution’s motion to withdraw the information and, a fortiori, dismissed the case for insufficiency of evidence.                                                                                                           

 

          In Velez v. De Vera,[67][50] the Court ruled that the relation between attorney and client is highly fiduciary in nature.  Being such, it requires utmost good faith, loyalty, fidelity, and disinterestedness on the part of the attorney.  Its fiduciary nature is intended for the protection of the client.  The Canon of Professional Ethics provides that 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.  Money of the client or collected for the client, or other trust property coming into the possession of the lawyer, should be reported and accounted for promptly and should not, under any circumstances, be commingled with his own or be used by him.  Consequently, a lawyer’s failure to return upon demand the funds or property held by him on behalf of his client gives rise to the presumption that he has appropriated the same for his own use to the prejudice of, and in violation of the trust reposed in him by, his client.  It is a gross violation of general morality as well as of professional ethics; it impairs the public confidence in the legal profession and deserves punishment.  Lawyers who misappropriate the funds entrusted to them are in gross violation of professional ethics and are guilty of betrayal of public confidence in the legal profession. Those who are guilty of such infraction may be disbarred or suspended indefinitely from the practice of law.[68][51]  Indeed, lawyering is not a business.  It is a profession in which duty to public service, not money, is the primary consideration.[69][52]

          In some cases, the Court stripped lawyers of the privilege to practice their profession for breach of trust and confidence pertaining to their clients’ moneys and properties.  In Manzano v. Soriano,[70][53] therein respondent, found guilty of grave misconduct (misappropriating the funds belonging to his client) and malpractice, represented therein complainant in a collection suit, but failed to turn over the amount of P50,000.00 as stipulated in their agreement and, to conceal the misdeed, executed a simulated deed of sale, with himself as the vendor and, at the same time, the notary public.  In Lemoine v. Balon, Jr.,[71][54] therein respondent, found guilty of malpractice, deceit, and gross misconduct, received the check corresponding to his client’s insurance claim, falsified the check and made it payable to himself, encashed the same, and appropriated the proceeds. 

 

          Law advocacy, it has been stressed, is not capital that yields profits.  The returns it births are simple rewards for a job done or service rendered.  It is a calling that, unlike mercantile pursuits which enjoy a greater deal of freedom from government interference, is impressed with public interest, for which it is subject to State regulation.[72][55]  Respondent’s repeated reprehensible acts of employing chicanery and unbecoming conduct to conceal her web of lies, to the extent of milking complainant’s finances dry, and deceitfully arrogating upon herself the insurance proceeds that should rightfully belong to complainant, in the guise of rendering legitimate legal services, clearly transgressed the norms of honesty and integrity required in the practice of law.  This being so, respondent should be purged from the privilege of exercising the noble legal profession.   

 

          WHEREFORE, respondent Atty. Zenaida P. Reyes is found guilty of gross misconduct and DISBARRED from the practice of law.  Let her name be stricken off the Roll of Attorneys.  This Decision is immediately executory.

 

          Let all the courts, through the Office of the Court Administrator, Integrated Bar of thePhilippines, and the Office of the Bar Confidant, be notified of this Decision and be it duly recorded in the personal file of the respondent. 

 

          Respondent is ORDERED to turn over to complainant Marites E. Freeman the proceeds of the insurance policies remitted to her by Lincoln Financial Group, in the amount of £10,489.57, and Eagle Star Life Assurance Company Limited, £471.06, or in the total amount of £10,960.63, which is approximately equivalent to P700,000.00, pursuant to the prevailing exchange rate at the time of the subject transaction.  

          SO ORDERED.

 

                                                         

                                         RENATO C. CORONA

                                                      Chief Justice

 

 

 

 

 

           ANTONIO T. CARPIO                     PRESBITERO J. VELASCO, JR.        

                   Associate Justice                                         Associate Justice

 

 

                   On official leave

TERESITA J. LEONARDO-DE CASTRO             ARTURO D. BRION

                  Associate Justice                                          Associate Justice

 

 

 

 

                   DIOSDADO M. PERALTA                           LUCAS P. BERSAMIN                      

                           Associate Justice                                            Associate Justice

 

 

 

                      On official leave                                                                  

                 MARIANO C. DEL CASTILLO                     ROBERTO A. ABAD  

                              Associate Justice                                        Associate Justice

 

 

 

  

              MARTIN S. VILLARAMA, JR.                   JOSE PORTUGAL PEREZ

                            Associate Justice                                          Associate Justice

 

 

 

 

     JOSE CATRAL MENDOZA                     MARIA LOURDES P. A. SERENO         

                Associate Justice                                           Associate Justice

 

 

 

       BIENVENIDO L. REYES                    ESTELA M. PERLAS-BERNABE

                 Associate Justice                                          Associate Justice

\

 

 

 

 


 


[1][33]                               Berbano v. Barcelona, A.C. No. 6084, September 3, 2003, 410 SCRA 258, 264.

[2][33]                               Berbano v. Barcelona, A.C. No. 6084, September 3, 2003, 410 SCRA 258, 264.

[3][34]          In re Almacen, G.R. No. L-27654, February 18, 1970, 31 SCRA 562, 600, cited in Pena v. Aparicio, A.C. No. 7298, June 25, 2007, 525 SCRA 444, 453 and Berbano v. Barcelona, id. at 264.

[4][39]          Celaje v. Soriano, A.C. No. 7418, October 9, 2007, 535 SCRA 217, 222, citing Small v. Banares, A.C. No. 7021, February 21, 2007, 516 SCRA 323, which cited Meneses v. Macalino, A.C. No. 6651, February 27, 2006, 483 SCRA 212 and Barnachea v. Quiocho, 447 Phil. 67, 75 (2003).

[5][40]          The amounts are as follows:  P50,000.00 for service charge, tax, and one round trip ticket to London; P20,000.00 for legal costs;  P10,000.00 for travel expenses,  P30,000.00 for legal costs; P39,000.00 for legal costs, and P18,000.00 to reinstate the lapsed application (no receipt was issued).

[6][41]          The amounts are as follows:  P50,000.00 as acceptance fee, P20,000.00 for initial expenses, and P50,000.00 as contingency fee.

[7][42]          Annex “L” of complainant’s Motion Submitting Instant Case for Immediate Resolution with Comments on Respondent’s Answer dated January 19, 2001, rollo, pp. 52-54.

[8][43]          The amounts are as follows:   P18,000.00, P20,000.00, and P5,000.00 worth of wine.

[9][47]          Office of the Court Administrator v. Claudio M. Lopez, Process Server, Municipal Trial Court, Sudipen, La Union, A.M. No. P-10-2788, January 18, 2011.

[10][48]        Section 1.  Preponderance of evidence, how determined. – In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence.  In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial.  The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.

[11][49]         Section 2.  Proof beyond reasonable doubt. – In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt.  Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty.  Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.

[12][50]        A.C. No. 6697, B.M. No. 1227 and A.M. No. 05-5-15-SC, July 25, 2006, 496 SCRA 345.

[13][51]        Id. at 380-381, citing Espiritu v. Ulep, A.C. No. 5808, May 4, 2005, 458 SCRA 1, 8-9.

[14][52]         Adrimisin v. Javier, A.C. No. 2591, September 8, 2006, 501 SCRA 192, 198.

[15][53]         A.C. No. 8051, April 7, 2009, 584 SCRA 1.

[16][54]         A.C. No. 5829, October 28, 2003, 414 SCRA 511.

[17][55]        Rayos v. Hernandez, G.R. No. 169079, February 12, 2007, 515 SCRA 517, 527, citing Metropolitan Bank & Trust Company v. Court of Appeals, G.R. Nos. 86100-03, January 23, 1990, 181 SCRA 367, 377, which cited Canlas v. Court of Appeals, G.R. No. L-77691, August 8, 1988, 164 SCRA 160, 173-174.

*               No part.

**             On official leave.

[18][1]          Rollo, pp. 1-8.

[19][2]          Annex “A” of complainant’s Complaint-Affidavit dated April 7, 2000, id. at 9.

[20][3]          Annex “B” of complainant’s Complaint-Affidavit dated April 7, 2000, id. at 10.

[21][4]          Annex “C” of complainant’s Complaint-Affidavit dated April 7, 2000, id.

[22][5]          Annex “D” of complainant’s Complaint-Affidavit dated April 7, 2000, id. at 11.

[23][6]          Annex “E” of complainant’s Complaint-Affidavit dated April 7, 2000, id.

[24][7]          Annex “F” of complainant’s Complaint-Affidavit dated April 7, 2000, id. at 12-14.

[25][8]                          Id. at 13.

[26][9]          Annex “G” of complainant’s Complaint Affidavit dated April 7, 2000, id. at 15; Exhibit “7” of respondent’s Motion for Reconsideration dated January 31, 2006, id. at 120.

[27][10]         Annex “H” of complainant’s Complaint Affidavit dated April 7, 2000, id. at 16; Exhibit “8” of respondent’s Motion for Reconsideration dated January 31, 2006, id. at 121.

[28][11]         Annex “I” of complainant’s Complaint Affidavit dated April 7, 2000, id. at 18.

[29][12]         Annex “J” of complainant’s Complaint-Affidavit dated April 7, 2000, id. at 19.

[30][13]         Id. at 20-21.

[31][14]                         Id.

[32][15]                                     Respondent did not make any specific mention as to which SPA she was referring to.

[33][16]        Annex “O-5” of complainant’s Motion Submitting the Instant Case for Immediate Resolution with Comments on Respondent’s Answer dated January 19, 2001, id. at 70-72.

[34][17]         Id. at 30-35.

[35][18]                             Affidavit of Josefina V. Bauzon dated June 26, 2000, id. at 39-40.

[36][19]         Respondent made reference to Annex “H” of complainant’s Complaint-Affidavit dated April 7, 2000, id. at 16.

[37][20]         Id.

[38][21]                         Affidavit of Leah Buama dated June 26, 2000, id. at 36-38

[39][22]        The Statement of Account as of July 1999 indicated the following:  Refund of ZPR’s [initials of respondent] travel expenses to London (May 1999) in the amounts of:  P45,061.00 round trip ticket, P5,000.00 travel tax and others, P20,000.00 hotel accommodation, and P10,000.00 representation expenses, or a total of  P80,061.00; and professional fees in the amounts of:   P50,000.00 acceptance fee,  P15,000.00 legal costs/documentation research, and 10% of award/claim (to be determined later), or the total amount of  P145,061.00, id. at 138. 

[40][23]                         Supra note 7. 

[41][24]        The following amounts were remitted to respondent’s personal bank account by the insurance companies based in London, to wit:  Per letter dated November 23, 2000, £10,489.57 from Lincoln Financial Group, id. at 63; and per letter April 28, 2000, £471.06 from Eagle Star Life Assurance Company Limited, id. at 74.

[42][25]         Annex “M” of complainant’s Motion Submitting the Instant Case for Immediate Resolution with Comments on Respondent’s Answer dated January 19, 2001, id. at 55-58.

[43][26]         Annex “N” of complainant’s Motion Submitting Instant Case for Immediate Resolution with Comments on Respondent’s Answer dated January 19, 2001, id. at 60.

[44][27]         Complainant’s Motion Submitting Instant Case for Immediate Resolution with Comments on Respondent’s Answer dated January 19, 2001, id. at 50.

[45][28]                             Exhibit “22” of respondent’s Motion for Reconsideration dated January 31, 2006, id. at 140-142.

[46][29]                             Id.

[47][30]                             Exhibit “21” of respondent’s Motion for Reconsideration dated January 31, 2006, id. at 139.

[48][31]         Id. at 79-93.

[49][32]         Id. at 78.

[50][33]                             Berbano v. Barcelona, A.C. No. 6084, September 3, 2003, 410 SCRA 258, 264.

[51][34]         In re Almacen, G.R. No. L-27654, February 18, 1970, 31 SCRA 562, 600, cited in Pena v. Aparicio, A.C. No. 7298, June 25, 2007, 525 SCRA 444, 453 and Berbano v. Barcelona, id. at 264.

[52][35]                         Supra note 9.

[53][36]                         Supra note 10.

[54][37]                             Supra note 11.

[55][38]        Spouses Rabanal v. Atty. Tugade, 432 Phil. 1064, 1068 (2002), citing Villafuerte v. Cortez, A.C. No. 3455, April 14, 1998, 288 SCRA 687.

[56][39]        Celaje v. Soriano, A.C. No. 7418, October 9, 2007, 535 SCRA 217, 222, citing Small v. Banares, A.C. No. 7021, February 21, 2007, 516 SCRA 323, which cited Meneses v. Macalino, A.C. No. 6651, February 27, 2006, 483 SCRA 212 and Barnachea v. Quiocho, 447 Phil. 67, 75 (2003).

[57][40]        The amounts are as follows:  P50,000.00 for service charge, tax, and one round trip ticket to London; P20,000.00 for legal costs;  P10,000.00 for travel expenses,  P30,000.00 for legal costs; P39,000.00 for legal costs, and P18,000.00 to reinstate the lapsed application (no receipt was issued).

[58][41]        The amounts are as follows:  P50,000.00 as acceptance fee, P20,000.00 for initial expenses, and P50,000.00 as contingency fee.

[59][42]        Annex “L” of complainant’s Motion Submitting Instant Case for Immediate Resolution with Comments on Respondent’s Answer dated January 19, 2001, rollo, pp. 52-54.

[60][43]         The amounts are as follows:   P18,000.00, P20,000.00, and P5,000.00 worth of wine.

[61][44]        Referred to as Far East Bank and Trust Company (FEBTC), now Bank of the Philippine Islands (BPI) monthly records, respondent’s Motion for Reconsideration dated January 31, 2006, Exhibits “17” to “17-a” to “17-I” [should be “17-J,”], id. at 126-136.

[62][45]         Annex “O” of complainant’s Motion Submitting Instant Case for Immediate Resolution with Comments on Respondent’s Answer dated January 19, 2001, id. at 63.

[63][46]         Annex “O-7” of complainant’s Motion Submitting the Instant Case for Immediate Resolution with Comments on Respondent’s Answer dated January 19, 2001, id. at 74.

[64][47]        Office of the Court Administrator v. Claudio M. Lopez, Process Server, Municipal Trial Court, Sudipen, La Union, A.M. No. P-10-2788, January 18, 2011.

[65][48]        Section 1.  Preponderance of evidence, how determined. – In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence.  In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial.  The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.

[66][49]         Section 2.  Proof beyond reasonable doubt. – In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt.  Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty.  Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.

[67][50]        A.C. No. 6697, B.M. No. 1227 and A.M. No. 05-5-15-SC, July 25, 2006, 496 SCRA 345.

[68][51]        Id. at 380-381, citing Espiritu v. Ulep, A.C. No. 5808, May 4, 2005, 458 SCRA 1, 8-9.

[69][52]         Adrimisin v. Javier, A.C. No. 2591, September 8, 2006, 501 SCRA 192, 198.

[70][53]         A.C. No. 8051, April 7, 2009, 584 SCRA 1.

[71][54]         A.C. No. 5829, October 28, 2003, 414 SCRA 511.

[72][55]        Rayos v. Hernandez, G.R. No. 169079, February 12, 2007, 515 SCRA 517, 527, citing Metropolitan Bank & Trust Company v. Court of Appeals, G.R. Nos. 86100-03, January 23, 1990, 181 SCRA 367, 377, which cited Canlas v. Court of Appeals, G.R. No. L-77691, August 8, 1988, 164 SCRA 160, 173-174.

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