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PER CURIAM:
On 22 August 1974, spouses Generosa Buted and Benito
Bolisay filed an administrative complaint for malpractice
against respondent Atty. Harold M. Hernando, charging the
latter with having wantonly abused professional secrets or
information obtained by him as their counsel.
After respondent Hernando filed his Answer on 25 June 1974,
the Court, in a resolution dated 4 October 1974 referred the
complaint to the Solicitor-General for investigation, report and
recommendation.
On 10 February 1975, complainants presented a Joint Affidavit
of Desistance. 1
On 24 October 1975, the Solicitor-General conducted a
hearing where respondent took the witness stand on his own
behalf.
The record of the case shows the following background facts:

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A.C. No. 1359 October 17, 1991
GENEROSA BUTED and BENITO BOLISAY, petitioners, vs.
ATTY. HAROLD M. HERNANDO, respondent.
Jorge A. Dolorfino for petitioners.
RESOLUTION

In an action for partition instituted by Generosa as

compulsory heir of the deceased Teofilo Buted, respondent
was counsel for Luciana Abadilla and a certain Angela Buted.
Involved in said partition case was a parcel of land Identified
as Lot 9439-B. Respondent ultimately succeeded in defending
Luciana Abadilla's claim of exclusive ownership over Lot
9439-B. When Luciana died, respondent withdrew his
appearance from that partition case.
It appears that Luciana Abadilla sold the lot to Benito Bolisay
and a new Transfer Certificate of Title over the lot was issued
in the name of complainant spouses.
When an action for specific performance was lodged by a
couple named Luis Sy and Elena Sy against Benito Bolisay as
one of the defendants, 2 the latter retained the services of
respondent Atty. Hernando however claims that he rendered
his services to Benito Bolisay free of charge. Subject of this
case was a contract of lease executed by Benito's codefendant therein, Enrique Buted, over a house standing on a
portion of Lot No. 9439-B. It appears that the Sy's were
claiming that the lease extended to the aforementioned lot.
Benito was then asserting ownership over the realty by virtue
of a Deed of Sale executed by Luciana Abadilla in his favor.
Eventually, the Sy's were ordered to vacate the house subject
of the lease. Respondent avers that the relationship between
himself and Benito Bolisay as regards this case was
terminated on 4 December 1969. 3
On 23 February 1974, respondent Hernando, without the
consent of the heirs of Luciana Abadilla and complainant
spouses, filed a petition on behalf of the heirs of Carlos,
Dionisia and Francisco all surnamed Abadilla, seeking the
cancellation of the Transfer Certificate of Title (TCT) of
complainant spouses over the lot. Carlos, Dionisia and
Francisco were Luciana's registered co-owners in the original
certificate of title covering Lot No. 9439-B. 4 At the hearing,
respondent Hernando testified that if the petition for
cancellation of TCT was granted, Lot 9439-B would no longer
be owned by complainant spouses but would be owned in
common by all the heirs of Luciana Abadilla. 5

Complainant spouses, upon learning of respondent's

appearance against them in the cadastral proceeding,
manifested their disapproval thereof in a letter dated 30 July
1974. 6 Respondent however, pursued the case until it was
eventually dismissed by the trial court on 2 September 1974
on the ground of prescription. 7
At the hearing before the Office of the Solicitor General and in
his Answer, respondent Hernando admitted his involvement in
the cadastral case as counsel for the Abadillas but denied
having seen or taken hold of the controversial Transfer
Certificate of Title, and having availed himself of any
confidential information relating to Lot 9439-B.
In its Report and Recommendation dated 29 March 1990, the
Solicitor General recommends that respondent be suspended
from the practice of law for three (3) months for violation of
the Canons of Professional Ethics by representing clients with
conflicting interests, and filed before this Court the
corresponding Complaint 8 dated 30 March 1990.
The issue raised in this proceeding is: whether or not
respondent Hernando had a conflict of interests under the
circumstances described above.
The Canons of Professional Ethics, the then prevailing
parameters of behavior of members of the bar, defines a
conflict of interests situation in the following manner:
6. Adverse influence and conflicting interests.
xxx xxx xxx
It is unprofessional to represent conflicting interests,
except by express consent of all concerned given
after a full disclosure of the facts. Within the
meaning of this canon, a lawyer represents
conflicting interests when, in behalf of one client, it is
his duty to contend for that which duty to another
client requires him to oppose.
The obligation to represent the client with undivided
fidelity and not to divulge his secrets or confidence
forbids also the subsequent acceptance of retainers
or employment from others in matters adversely
affecting any interest of the client with respect to
which confidence has been reposed.
(Emphasis supplied)
Though as regards the first and second cases handled by
respondent, no conflict of interest existed, the same cannot
be said with respect to the action for specific performance
and the cadastral proceeding. By respondent's own
admission, he defended the right of ownership over Lot 9439B of complainant Benito Bolisay in the action for specific
performance. He assailed this same right of ownership when
he subsequently filed a petition for cancellation of
complainants' Transfer Certificate of Title over that same lot.
Respondent Hernando was in a conflict of interest situation.
It is clear from the above-quoted portion of the Canons of
Professional Ethics that in cases where a conflict of interests
may exist, full disclosure of the facts and express consent of
all the parties concerned are necessary. 9The present Code of

Professional Responsibility is stricter on this matter

considering that consent of the parties is now required to be
in written form. 10In the case at bar, such consent was
wanting.
Respondent persistently argues that contrary to the claims of
complainant spouses, he had never seen nor taken hold of the
Transfer Certificate of Title covering Lot No. 9439-B nor
obtained any confidential information in handling the action
for specific performance. 11 The contention of respondent is,
in effect, that because complainant has not clearly shown that
respondent had obtained any confidential information from
Benito Bolisay while representing the latter in the action for
specific performance, respondent cannot be penalized for
representing conflicting interests. That is not the rule in this
jurisdiction. The rule here is, rather, that the mere fact that
respondent had acted as counsel for Benito Bolisay in the
action for specific performance should have precluded
respondent from acting or appearing as counsel for the other
side in the subsequent petition for cancellation of the Transfer
Certificate of Title of the spouses Generosa and Benito
Bolisay. There is no necessity for proving the actual
transmission of confidential information to an attorney in the
course of his employment by his first client in order that he
may be precluded from accepting employment by the second
or subsequent client where there are conflicting interests
between the first and the subsequent clients. The reason for
this rule was set out by the Court in Hilado v. David 12 in the
following terms:
Communications between attorney and client are, in
a great number of litigations, a complicated affair,
consisting of entangled relevant and irrelevant,
secret and well known facts. In the complexity of
what is said in the course of the dealings between an
attorney and a client, inquiry of the nature
suggested would lead to the revelation, in advance
of the trial, of other matters that might only further
prejudice the complainant's cause. And the theory
would be productive of other unsalutary results. To
make the passing of confidential communication a
condition precedent; i.e., to make the employment
conditioned on the scope and character of the
knowledge acquired by an attorney in determining
his right to change sides, would not enhance the
freedom of litigants, which is to be sedulously
fostered, to consult with lawyers upon what they
believe are their rights in litigation. The condition
would of necessity call for an investigation of what
information the attorney has received and in what
way it is or it is not in conflict with his new
position. Litigants would be in consequence be
wary in going to an attorney, lest by an unfortunate
turn of the proceeding, if an investigation be held,
the court should accept the attorney's inaccurate
version of the facts that came to him.
Hence the necessity of setting down the existence of
the bare relationship of attorney and client as the
yardstick for testing incompatibility of interests. This
stern rule is designed not alone to prevent the
dishonest practitioner from fraudulent conduct, but
as well to protect the honest lawyer from
unfounded suspicion of unprofessional
practice. (Strong vs. Int. Bldg., etc.; Ass'n. 183 III.,
97; 47 L.R.A., 792) It is founded on principles of

public policy, on good taste. As has been said

another case, the question is not necessarily one of
the rights of the parties, but as to whether the
attorney has adhered to proper professional
standard. With these thoughts in mind, it behooves
attorneys, like Caesar's wife, not only to keep
inviolate the client's confidence, but also to avoid the
appearance of treachery and double-dealing. Only
thus can litigants be encouraged to entrust their
secrets to their attorneys which is of paramount
importance in the administration of
justice. 13 (Emphasis supplied)
This Court went further in San Jose v. Cruz, 14 where the
lawyer was charged with malpractice for having represented
a new client whose interest was opposed to those of his
former clients in another case:
The record shows that the respondent offered his
services to the Matienzo spouses knowing that the
petitioner had obtained a favorable judgment in the
civil case No. 5480 and that his efforts in the
subsequent civil case No. 5952 would frustrate said
judgment and render it ineffectual, as has really
been the result upon his obtaining the writ of
injunction above-mentioned. Obviously his conduct is
unbecoming to an attorney and cannot be
sanctioned by the courts. An attorney owes loyalty to
his client not only in the case in which he has
represented him but also after the relation of
attorney and client has terminated and it is not a
good practice to permit him afterwards to defend in
another case other persons against his former client
under the pretext that the case is distinct from, and
independent of the former case. 15 (Emphasis
supplied)
The appropriate rule has been expressed by Justice Malcolm
in the following manner:
An attorney is not permitted, in serving a new client
as against a former one, to do anything which will
injuriously affect the former client in any manner in
which the attorney formerly represented him, though
the relation of attorney and client has terminated,
and the new employment is in a different case; nor
can the attorney use against his former client any
knowledge or information gained through their
former connection. 16 (Emphasis supplied)
The absence of monetary consideration does not exempt the
lawyer from complying with the prohibition against
pursuing cases where a conflict of interest exists. The
prohibition attaches from the moment the attorney-client
relationship is established and extends beyond the duration of
the professional relationship.
The Court therefore agrees with the Solicitor-General that
respondent Hernando is guilty of violation of the Canons
of Professional Ethics by representing clients with
conflicting interests. We believe, however, that a heavier
penalty is appropriate.

ACCORDINGLY, the Court Resolved to SUSPEND Atty. Harold

M. Hernando from the practice of law for a period of five (5)
months, with a WARNING that repetition of the same or
similar offense will warrant a more severe penalty. A copy of
this Resolution shall be furnished to all courts and to the
Office of the Bar Confidant and spread on the personal record
of respondent.
Fernan, C.J., Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ.,
concur

CBD CASE No. 251 July 11, 1995

ADELINA T. VILLANUEVA, complainant, vs.
ATTY. TERESITA STA. ANA, respondent.
PER CURIAM:
Complainant Adelina T. Villanueva has sought the disbarment
of respondent Attorney Teresita Sta. Ana.
From the Report and Recommendation of the Commission on
Bar Discipline and the records of the case, it would appear
that complainant first met respondent lawyer some time in
April 1992 when the former brought certain documents to the
latter for notarization. Respondent later learned that
complainant had planned to borrow a substantial sum from a
bank or lending institution. Respondent represented that she
could facilitate the loan if complainant could put up a land
collateral and provide a "guaranty deposit" of P150,000.00.
Evidently convinced that respondent could help, complainant
handed over and entrusted to respondent the amount of
P144,000.00, as well as various documents, e.g., a special
power of attorney, deed of sale, tax declaration and land title
(in the name of complainant's father), required for the loan
application. Respondent later told complainant that an
additional amount of P109,000.00 was needed for withholding
and documentary stamp taxes, plus surcharges. Complainant
thereupon decided to forego the loan application. She
demanded from respondent the return of her money;
however, the latter not only failed to heed the request but
also then began to avoid complainant.
Complainant finally sought assistance from the office of the
Vice-President of the Philippines, which referred the matter to
the National Bureau of Investigation ("NBI"). Respondent was
subpoenaed twice by the agent-on-case but she failed in both
instances to appear. The investigation, nonetheless, went
through; thereafter, the NBI recommended that respondent be
criminally charged with estafa under Article 315, paragraph
1(b), of the Revised Penal Code and that disbarment
proceedings be taken against her. In a letter-referral, dated 03
May 1993, then NBI Director Epimaco A. Velasco transmitted
to the Commission on Bar Discipline ("Commission") of the
Integrated Bar of the Philippines ("IBP") the Bureau's
evaluation.
The Commission required respondent to respond to the
charges but respondent neither complied nor appeared at any
of the hearings scheduled by it.

In the course of its proceedings, the Commission noted

several criminal charges filed against respondent; viz:

Rule 1.01 A lawyer shall not engage in unlawful,

dishonest, immoral or deceitful conduct.

(1) Criminal Case No. 92-8849 for Falsification of

Private Document, pending before the Regional Trial
Court of Antipolo, Branch 73;

CANON 16 A lawyer shall hold in trust all moneys

and properties of his client that may come into his
possession.

(2) Criminal Case No. 93-9289 for Estafa under

Article 315, par. 1(b) of the Revised Penal Code,
pending before the Regional Trial Court of Antipolo,
Branch 72;

Rule 16.01 A lawyer shall account for all money or

property collected or received for or from the client.

(3) Criminal Case No. 93-118159 for Estafa through

Falsification of Public Document filed with the
Regional Trial Court of Manila, Branch 15, which
resulted in her conviction. The dispositive portion of
the decision, dated 24 March 1994, read:
WHEREFORE, this Court finds the accused GUILTY
beyond reasonable doubt of the complex crime of
Estafa thru falsification of public document and
hereby imposes upon said accused an indeterminate
penalty of 2 years 4 months of prision correccional as
minimum to 20 years of reclusion temporal as
maximum and indemnify the offended party the sum
of P136,000.00 and to pay the cost. 1

Despite all the opportunities accorded to her, respondent has

failed to present her defense and to refute the charges or, at
the very least, to explain herself. The Court is thus left with
hardly any choice other than to accept the findings and
recommendations of the Integrated Bar of the Philippines and
the Commission on Bar Discipline.
WHEREFORE, respondent Teresita Sta. Ana is DISBARRED. The
Clerk of Court is directed to strike out her name from the Roll
of Attorneys.
SO ORDERED.

A.C. No. 2597 March 12, 1998

(4) Criminal Cases Nos. 8015 and 8019 for Violation
of Section 3(c), Republic Act No. 3019, pending
before the Second Division of the Sandiganbayan;
(5) Criminal Cases Nos. 7351 and 7354 also for
Violation of Section 3(c), Republic Act No. 3019,
pending before the Second Division of the
Sandiganbayan;
(6) Criminal Case No. 7036 for Violation of Section
3(c), Republic Act No. 3019, pending before the
Second Division of the Sandiganbayan; and
(7) Criminal Case No. 6731 for Violation of Section
3(c), Republic Act No. 3019, pending before the
Second Division of the Sandiganbayan.
In the Commission's Report and Recommendation, dated 25
July 1994, Investigating Commissioner Victor C. Fernandez
recommended that "the respondent be disbarred for being
totally unfit to be a member of the legal profession." 2 In its
Resolution No. XI-94-219, dated 14 January 1995, the Board of
Governors of the Integrated Bar of the Philippines ("IBP")
resolved to adopt and approve the report of the Investigating
Commissioner.
We also agree.
Well-settled is the rule that good moral character is not only a
condition precedent to an admission to the legal profession
but it must also remain extant in order to maintain one's good
standing in that exclusive and honored fraternity. 3 The Code
of Professional Responsibility mandates:
CANON 1 . . . .

GLORITO V. MATURAN, petitioner, vs.

ATTY. CONRADO S. GONZALES, respondent.
RESOLUTION
ROMERO, J.:
A complaint for disbarment was filed with this Court on
October 25, 1983, by Glorito V. Maturan against his counsel,
Atty. Conrado S. Gonzales, charging him with immoral,
unethical, and anomalous acts. The respondent filed his
comment thereto on February 6, 1984. On November 11,
1997, or after thirteen (13) years, the Board of Governors of
the Integrated Bar of the Philippines submitted their report
and recommendation on the instant case.
The facts, as culled from the records, are as follows:
Spouses Antonio and Gloria Casquejo instituted their son-inlaw, Glorito V. Maturan (herein petitioner), as their attorney-infact, through a Special Power of Attorney (SPA) dated
November 6, 1981. Said SPA authorized Maturan to file
ejectment cases against squatters occupying Lot 1350-A, Psd50375, located in General Santos City, as well as criminal
cases against the latter for violation of P.D. 772, again in
connection with said lot. Respondent, Atty. Conrado Gonzales,
prepared and notarized said Special Power of Attorney.
Subsequently, Glorito Maturan engaged the services of
respondent in ejecting several squatters occupying Lot 1350A, Psd-50735. While said lot was registered in the name of
Celestino Yokingco, Antonio Casquejo had, however, instituted
a case for reconveyance of property and declaration of nullity
against the former, docketed as Civil Case No. 2067.

As a consequence of his engagement by petitioner,

respondent Gonzales filed Civil Case No. 1783-11 for Forcible
Entry and Damages against several individuals. On February
18, 1983, a judgment was rendered in favor of petitioner.
Petitioner, through respondent, filed a motion for issuance of a
writ of execution on March 10, 1983.
In the interim, the parties to Civil Case No. 2067 entered into
a compromise agreement, which was judicially approved in a
judgment dated March 28, 1983.
On June 22, 1983, while the motion for issuance of a writ of
execution was pending, and without withdrawing as counsel
for petitioner, respondent filed, on behalf of Celestino
Yokingco, et al., Civil Case No. 2746, an action to annul the
judgment rendered in Civil Case No. 2067. The action was
predicated on the lack of authority on the part of petitioner to
represent Antonio and Gloria Casquejo, as no such
authorization was shown to be on record in Civil Case No.
2067. On August 24, 1983, respondent, on behalf of Celestino
Yokingco, et al., also filed Special Civil Case No. 161 for
injunction with a prayer for preliminary injunction, with
damages, against petitioner.
Aggrieved by respondent's acceptance of professional
employment from their adversary in Civil Case No. 2067, and
alleging that privileged matters relating to the land in
question had been transmitted by petitioner to respondent in
Civil Case 1783-11, petitioner filed an administrative
complaint against the former for immoral, unethical, and
anomalous acts and asked for his disbarment.
Respondent, in a comment dated January 25, 1984, denied
having committed any malicious, unethical, unbecoming,
immoral, or anomalous act against his client. Respondent
declared that he was of the belief that filing a motion for
issuance of a writ of execution was the last and final act in the
lawyer-client relationship between himself and petitioner, and
that his formal withdrawal as counsel for the Casquejos was
unnecessary in order to sever the lawyer-client relationship
between them. Furthermore, he alleged that his acceptance of
employment from Yokingco was for him, an opportunity to
honestly earn a little more for his children's sustenance.
The investigating commissioner of the Integrated Bar of the
Philippines, in his report dated August 21, 1997, found
respondent guilty of representing conflicting interests and
recommended that he be suspended for three (3) years. The
Board of Governors of the IBP adopted and approved the
report and recommendation of the investigating commissioner
but recommended that the suspension be reduced from three
(3) years to one (1) year.
This Court adopts the findings of the investigating
commissioner finding respondent guilty of representing
conflicting interests. It is improper for a lawyer to appear as
counsel for one party against the adverse party who is his
client in a related suit, as a lawyer is prohibited from
representing conflicting interests or discharging inconsistent
duties. He may not, without being guilty of professional
misconduct, act as counsel for a person whose interest
conflicts with that of his present or former client. 1 That the
representation of conflicting interest is in good faith and with
honest intention on the part of the lawyer does not make the
prohibition inoperative.

The reason for the prohibition is found in the relation of

attorney and client, which is one of trust and confidence of
the highest degree. A lawyer becomes familiar with all the
facts connected with his client's case. He learns from his client
the weak points of the action as well as the strong ones. Such
knowledge must be considered sacred and guarded with care.
No opportunity must be given him to take advantage of the
client's secrets. A lawyer must have the fullest confidence of
his client. For if the confidence is abused, the profession will
suffer by the loss thereof. 2
This Court finds respondent's actuations violative of Canon 6
of the Canons of Professional Ethics which provide in part:
It is unprofessional to represent conflicting interests,
except by express consent of all concerned given
after a full disclosure of the facts. Within the meaning
of this canon, a lawyer represents conflicting
interests when, in behalf of one client, it is his duty to
contend for that which duty to another client requires
him to oppose.
Moreover, respondent's justification for his actions reveal a
patent ignorance of the fiduciary obligations which a lawyer
owes to his client. A lawyer-client relationship is not
terminated by the filing of a motion for a writ of execution. His
acceptance of a case implies that he will prosecute the case
to its conclusion. He may not be permitted to unilaterally
terminate the same to the prejudice of his client.
As to the recommendation that the term of suspension be
reduced from three years to one year, we find the same to be
unwarranted. In similar cases decided by the Supreme Court,
the penalty of two or three years suspension has been
imposed where respondent was found guilty of representing
conflicting interests. In Vda. De Alisbo vs.Jalandoon, Sr., 3 the
respondent, who appeared for complainant in a case for
revival of judgment, even though he had been the counsel of
the adverse party in the case sought to be revived, was
suspended for a period of two years. In Bautista vs.Barrios, 4 a
suspension of two years was imposed on respondent Barrios,
who had drafted a deed of partition for petitioner, but who
appeared for the other party therein, when the same was
sought to be enforced by petitioner. In PNB vs. Cedo, 5 the
Court even suspended the respondent therein for three years,
but only because respondent not only represented conflicting
interests, but also deliberately intended to attract clients with
interests adverse to his former employer. Finally, in Natan
vs.Capule, 6 respondent was suspended for two years after he
accepted professional employment in the very case in which
his former client was the adverse party.
ACCORDINGLY, this Court resolves to MODIFY the IBP
recommendation to suspend respondent for one year and
modifies it to SUSPENSION from the practice of law for TWO
(2) YEARS, effective immediately.
SO ORDERED.
G.R. No. 76232 January 18, 1991
VILL TRANSPORT SERVICE, INC., petitioner, vs.
HON. COURT OF APPEALS, THE ENERGY CORPORATION,

and the DEPUTY SHERIFF of the Regional Trial Court,

Makati, Metro Manila, respondents.

petition for certiorari and mandamus with preliminary

injunction aimed at the setting aside of the order of execution
and the issuance of an order for a new trial.

Romualdo M. Jubay for petitioner.

Castillo, Laman, Tan & Pantaleon for private respondent.

FERNAN, C.J.:p
The issue in this petition for review on certiorari is whether or
not notice of a decision served upon counsel in a case who did
not leave a forwarding address after he had moved from his
address of record, is a valid service thereby making the
decision final and executory after the lapse of the period to
appeal.
The facts as found by the Court of Appeals are as follows:
In Civil Case No. 45167 before the Regional Trial Court of
Makati, Branch CXLI, defendant Vill Transport Service, Inc. (Vill
Transport for brevity) was held liable for damages for breach
of contract in favor of the plaintiff Energy Corporation. Vill
Transport was ordered to pay Energy Corporation
US$25,524.75 or P191,435.62 as damages, P40,000 for
charter fees, P33,931.65 for rental and maintenance costs and
P63,750 for service fees, with all of these amounts being
subject to 12% interest per annum from June 16, 1980, plus
attorney's fees of P8,866.60.
On June 7, 1985 a copy of the decision was sent by registered
mail to Atty. Amante Pimentel, counsel of record of Vill
Transport, at his address at 563 Tanglaw Street, Mandaluyong,
Metro Manila. However, it was returned to the court with the
notation that the addressee had moved out of his given
address without leaving a forwarding address.
On September 14, 1985, Energy Corporation moved for
execution of the decision and on September 19, 1985, the
court favorably acted on the motion. On September 24,1985,
a writ of execution was therefore issued.
A month later, Vill Transport filed an urgent motion for
reconsideration of the order of September 19, 1985 and
served notice of its intention to appeal. It contended that the
decision had not as yet become final because it came to know
of the decision only on October 21, 1985. It also claimed that
the writ of execution was void as no copy of the motion for
execution was served on it.
Energy Corporation filed an opposition to said urgent motion
pointing out that the decision had become final and executory
since a copy of the decision was served on Vill transport
through its counsel at his address of record and no appeal was
perfected within the reglementary period of appeal. It added
that a motion for execution of a final and executory judgment
did not have to be with notice to defendant.
Before the motion for reconsideration could be resolved by
the court, Vill Transport filed a motion for new trial based on
newly-discovered evidence. Again, without waiting for the
resolution of said motion, it filed with the Court of Appeals a

On September 30, 1986, the Court of Appeals 1 rendered a

decision dismissing the petition for lack of merit. 2 It held that
petitioner's counsel was duty-bound to notify the trial court of
any change of address and his failure to do so could not be
excused. It added that the trial court had every reason to
consider the service of its decision completed upon the
expiration of five days from notice to counsel in the absence
of prior notice by the latter of any change of address. It
opined that "to hold that Rule 13, Sec. 8 cannot apply here
because Atty. Pimentel did not get the notice, would be to
encourage litigants or their attorneys to evade the service of
judgments and orders by simply leaving their addresses
without notice of their whereabouts." 3
Its motion for the reconsideration of said decision having been
denied, Vill Transport interposed the instant petition for review
on certiorari.
Petitioner admits the negligence of its counsel in not leaving a
forwarding address but contends that its counsel was not
actually notified of the registered letter containing a copy of
the trial court's decision for he had moved from his address of
record. Hence, service thereof could not have taken effect
after the lapse of the five-day period mentioned in Rule 13,
Section 8 of the Rules of Court. It invokes due process
complaining that it was deprived of its right to appeal from
the decision of the lower court on account of its failure to
receive a copy of the decision.
On the other hand, private respondent avers that the petition
was prosecuted manifestly to delay execution of the decision
of the lower court which had long become final and executory.
It stresses the fact that, being designated by Section 2, Rule
13 of the Rules of Court to receive copies of all court
processes, petitioner's counsel was duty-bound to inform the
court of any changes in his address of record and therefore,
should he fail to do so, service of such processes in his
address of record should be considered complete and binding
upon his client.
We find for the private respondent.
Section 8, Rule 13 of the Rules of Court provides that
"(s)ervice by registered mail is complete upon actual receipt
by the addressee; but if he fails to claim his mail from the post
office within five (5) days from the date of first notice of the
postmaster, service shall take effect at the expiration of such
time." In Barrameda vs. Castillo, 4 the Court held that since
the exception in service by registered mail refers to
constructive service, not to actual receipt of the mail, it is but
fair and just that there be conclusive proof that a first notice
was sent by the postmaster to the addressee. While in the
more recent case of De la Cruz vs. De la Cruz, 5 the Court
appears to have adopted the more stringent rule of requiring
not only that the notice of the registered mail be sent but that
it should also be delivered to and received by the addressee,
We find that this rule cannot be applied in this case wherein
the element of negligence is present.

Petitioner herein disputes that a first notice was ever sent to

its counsel of record because "the post office just returned the
registered letter and put the stampmark . . . 'Moved'"
thereon. 6 To our mind, petitioner's contention is sufficient
proof that indeed a first notice was sent to its counsel of
record. Its non-receipt by the addressee, however, was due
entirely to his neglect in informing the court of the fact that he
had moved and had a new address. To cater to petitioner's
rhetorical argument would put a premium on negligence and
encourage the non-termination of cases by reason thereof.
In Antonio vs. Court of Appeals, 7 the Court categorically
stated that the requirement of conclusive proof of receipt of
the registry notice "presupposes that the notice is sent to the
correct address as indicated in the records of the court. It
does not apply where, as in the case at bar, the notice was
sent to the lawyer's given address but did not reach him
because he had moved therefrom without informing the court
of his new location. The service at the old address should be
considered valid. Otherwise, no process can be served on the
client through his lawyer if the latter has simply disappeared
without leaving a forwarding address. There is no need to
stress that service on the lawyer, if valid, is also valid service
on the client he represents. The rule in fact is that it is on the
lawyer and not the client that the service should first be
made."
Losing a case on account of one's counsel's negligence is a
bitter pill to swallow for the litigant. But then, the Court is
duty-bound to observe its rules and procedures. And, in the
observance thereof for the orderly administration of justice, it
cannot countenance the negligence and ineptitude of lawyers
who wantonly jeopardize the interests of their clients. 8 On his
part, a lawyer shall observe the rules of procedure and shall
not misuse them to defeat the ends of justice. 9
Thus, a lawyer should so arrange matters that official and
judicial communications sent by mail will reach him promptly
and should he fail to do so, not only he but his client as well,
must suffer the consequence of his negligence. 10 Failure to
claim registered mail of which notice had been duly given by
the postmaster is not excusable negligence that would
warrant the reopening of a decided case. 11 The same rule
applies in cases like the instant one where the counsel,
through his negligence, caused the nondelivery of a judicial
notice.
WHEREFORE, the instant petition is hereby denied for lack of
merit. This decision is immediately executory. Costs against
the petitioner.
SO ORDERED.

A.C. No. 4103 September 7, 1995

VERONICA S. SANTIAGO, BENJAMIN Q. HONTIVEROS,
MR. SOCORRO F. MANAS, and TRINIDAD
NORDISTA, complainants, vs.
ATTY. AMADO R. FOJAS, respondent.

DAVIDE JR., J.:

In their letter of 8 September 1993, the complainants, former
clients of the respondent, pray that the latter be disbarred for
"malpractice, neglect and other offenses which may be
discovered during the actual investigation of this complaint."
They attached thereto an Affidavit of Merit wherein they
specifically allege:
1. That we are Defendants-Appellates [sic] in the
Court of Appeals Case No. CA-G.N. CV No. 38153 of
which to our surprise lost unnecessarily the aforesaid
Petition [sic]. A close perusal of the case reveals the
serious misconduct of our attorney on record, Atty.
Amado Fojas tantamount to malpractice and
negligence in the performance of his duty obligation
to us, to defend us in the aforesaid case. That the
said attorney without informing us the reason why
and riding high on the trust and confidence we
repose on him either abandoned, failed to act
accordingly, or seriously neglected to answer the civil
complaint against us in the sala of Judge Teresita
Capulong Case No. 3526-V-91 Val. Metro Manila so
that we were deduced [sic] in default.
2. That under false pretenses Atty. Fojas assured us
that everything was in order. That he had already
answered the complaint so that in spite of the
incessant demand for him to give us a copy he
continued to deny same to us. Only to disclose later
that he never answered it after all because according
to him he was a very busy man. Please refer to Court
of Appeals decision dated August 17, 1993.
3. That because of Atty. Amado Foja's neglect and
malpractice of law we lost the Judge Capulong case
and our appeal to the Court of Appeals. So that it is
only proper that Atty. Fojas be disciplined and
disbarred in the practice of his profession.
In his Comment, the respondent admits his "mistake" in failing
to file the complainants' answer in Civil Case No. 3526-V-91,
but he alleges that it was cured by his filing of a motion for
reconsideration, which was unfortunately denied by the court.
He asserts that Civil Case No. 3526-V-91 was a "losing cause"
for the complainants because it was based on the expulsion of
the plaintiff therein from the Far Eastern University Faculty
Association (FEUFA) which was declared unlawful in the final
decision in NCR-OD-M-90-10-050. Thus, "[t]he unfavorable
judgment in the Regional Trial Court is not imputable to [his]
mistake but rather imputable to the merits of the
case, i.e., the decision in the Expulsion case wherein
defendants (complainants herein) illegally removed from the
union (FEUFA) membership Mr. Paulino Salvador. . . ." He
further claims that the complainants filed this case to harass
him because he refused to share his attorney's fees in the
main labor case he had handled for them. The respondent
then prays for the dismissal of this complaint for utter lack of
merit, since his failure to file the answer was cured and, even
granting for the sake of argument that such failure amounted
to negligence, it cannot warrant his disbarment or suspension
from the practice of the law profession.
The complainants filed a Reply to the respondent's Comment.

Issues having been joined, we required the parties to inform

us whether they were willing to submit this case for decision
on the basis of the pleadings they have filed. In their separate
compliance, both manifested in the affirmative.
The facts in this case are not disputed.
Complainants Veronica Santiago, Benjamin Hontiveros, Ma.
Socorro Manas, and Trinidad Nordista were the President, VicePresident, Treasurer, and Auditor, respectively, of the FEUFA.
They allegedly expelled from the union Paulino Salvador. The
latter then commenced with the Department of Labor and
Employment (DOLE) a complaint (NCR-OD-M-90-10-050) to
declare illegal his expulsion from the union.
In his resolution of 22 November 1990, Med-Arbiter Tomas
Falconitin declared illegal Salvador's expulsion and directed
the union and all its officers to reinstate Salvador's name in
the roll of union members with all the rights and privileges
appurtenant thereto. This resolution was affirmed in toto by
the Secretary of Labor and Employment.
Subsequently, Paulino Salvador filed with the Regional Trial
Court (RTC) of Valenzuela, Metro Manila, Branch 172, a
complaint against the complainants herein for actual, moral,
and exemplary damages and attorney's fees, under Articles
19, 20, and 21 of the Civil Code. The case was docketed as
Civil Case No. 3526-V-91.
As the complainants' counsel, the respondent filed a motion to
dismiss the said case on grounds of (1) res judicataby virtue
of the final decision of the Med-Arbiter in NCR-OD-M-90-10050 and (2) lack of jurisdiction, since what was involved was
an intra-union issue cognizable by the DOLE. Later, he filed a
supplemental motion to dismiss.
The trial court, per Judge Teresita Dizon-Capulong, granted the
motion and ordered the dismissal of the case. Upon Salvador's
motion for reconsideration, however, it reconsidered the order
of dismissal, reinstated the case, and required the
complainants herein to file their answer within a
nonextendible period of fifteen days from notice.
Instead of filing an answer, the respondent filed a motion for
reconsideration and dismissal of the case. This motion having
been denied, the respondent filed with this Court a petition
for certiorari, which was later referred to the Court of Appeals
and docketed therein as CA-G.R. SP No. 25834.
Although that petition and his subsequent motion for
reconsideration were both denied, the respondent still did not
file the complainants' answer in Civil Case No. 3526-V-91.
Hence, upon plaintiff Salvador's motion, the complainants
were declared in default, and Salvador was authorized to
present his evidence ex-parte.
The respondent then filed a motion to set aside the order of
default and to stop the ex-parte reception of evidence before
the Clerk of Court, but to no avail.
Thereafter, the trial court rendered a decision ordering the
complainants herein to pay, jointly and severally, plaintiff
Salvador the amounts of P200,000.00 as moral damages;

P50,000.00 as exemplary damages or corrective damages;

and P65,000.00 as attorney's fees; plus cost of suit.
The complainants, still assisted by the respondent, elevated
the case to the Court of Appeals, which, however, affirmed in
toto the decision of the trial court.
The respondent asserts that he was about to appeal the said
decision to this Court, but his services as counsel for the
complainants and for the union were illegally and unilaterally
terminated by complainant Veronica Santiago.
The core issue that presents itself is whether the respondent
committed culpable negligence, as would warrant disciplinary
action, in failing to file for the complainants an answer in Civil
Case No. 3526-V-91 for which reason the latter were declared
in default and judgment was rendered against them on the
basis of the plaintiff's evidence, which was received ex-parte.
It is axiomatic that no lawyer is obliged to act either as
adviser or advocate for every person who may wish to
become his client. He has the right to decline
employment, 1 subject, however, to Canon 14 of the Code of
Professional Responsibility. Once he agrees to take up the
cause of a client, the lawyer owes fidelity to such cause and
must always be mindful of the trust and confidence reposed in
him. 2 He must serve the client with competence and
diligence, 3 and champion the latter's cause with
wholehearted fidelity, care, and devotion. 4 Elsewise stated, he
owes entire devotion to the interest of the client, warm zeal in
the maintenance and defense of his client's rights, and the
exertion of his utmost learning and ability to the end that
nothing be taken or withheld from his client, save by the rules
of law, legally applied. 5 This simply means that his client is
entitled to the benefit of any and every remedy and defense
that is authorized by the law of the land and he may expect
his lawyer to assert every such remedy or defense. 6 If much is
demanded from an attorney, it is because the entrusted
privilege to practice law carries with it the correlative duties
not only to the client but also to the court, to the bar, and to
the public. A lawyer who performs his duty with diligence and
candor not only protects the interest of his client; he also
serves the ends of justice, does honor to the bar, and helps
maintain the respect of the community to the legal
profession. 7
The respondent admits that it was his duty to file an answer in
Civil Case No. 3526-V-91. He justifies his failure to do so in this
wise:
[I]n his overzealousness to question the
Denial Order of the trial court, 8 [he]
instead, thru honest mistake and excusable
neglect, filed a PETITION
FOR CERTIORARI with the Honorable Court,
docketed as G.R. No. 100983. . . .
And, when the Court of Appeals, to which G.R. No.
100983 was referred, dismissed the petition, he
again "inadvertently" failed to file an answer "[d]ue
to honest mistake and because of his
overzealousness as stated earlier. . . . "

In their Reply, the complainants allege that his failure to file

an answer was not an honest mistake but was "deliberate,
malicious and calculated to place them on the legal
disadvantage, to their damage and prejudice" for, as admitted
by him in his motion to set aside the order of default, his
failure to do so was "due to volume and pressure of legal
work." 9 In short, the complainants want to impress upon this
Court that the respondent has given inconsistent reasons to
justify his failure to file an answer.
We agree with the complainants. In his motion for
reconsideration of the default order, the respondent explained
his non-filing of the required answer by impliedly invoking
forgetfulness occasioned by a large volume and pressure of
legal work, while in his Comment in this case he attributes it
to honest mistake and excusable neglect due to his
overzealousness to question the denial order of the trial court.
Certainly, "overzealousness" on the one hand and "volume
and pressure of legal work" on the other are two distinct and
separate causes or grounds. The first presupposes the
respondent's full and continuing awareness of his duty to file
an answer which, nevertheless, he subordinated to his
conviction that the trial court had committed a reversible
error or grave abuse of discretion in issuing an order
reconsidering its previous order of dismissal of Salvador's
complaint and in denying the motion to reconsider the said
order. The second ground is purely based on forgetfulness
because of his other commitments.
Whether it be the first or the second ground, the fact remains
that the respondent did not comply with his duty to file an
answer in Civil Case No. 3526-V-91. His lack of diligence was
compounded by his erroneous belief that the trial court
committed such error or grave abuse of discretion and by his
continued refusal to file an answer even after he received the
Court of Appeals' decision in the certiorari case. There is no
showing whatsoever that he further assailed the said decision
before this Court in a petition for review under Rule 45 of the
Rules of Court to prove his claim of overzealousness to
challenge the trial court's order. Neither was it shown that he
alleged in his motion to lift the order of default that the
complainants had a meritorious defense. 10 And, in his appeal
from the judgment by default, he did not even raise as one of
the errors of the trial court either the impropriety of the order
of default or the court's grave abuse of discretion in denying
his motion to lift that order.
Pressure and large volume of legal work provide no excuse for
the respondent's inability to exercise due diligence in the
performance of his duty to file an answer. Every case a lawyer
accepts deserves his full attention, diligence, skill, and
competence, regardless of its importance and whether he
accepts it for a fee or for free.
All told, the respondent committed a breach of Canon 18 of
the Code of Professional Responsibility which requires him to
serve his clients, the complainants herein, with diligence and,
more specifically, Rule 18.03 thereof which provides: "A
lawyer shall not neglect a legal matter entrusted to him, and
his negligence in connection therewith shall render him
liable."
The respondent's negligence is not excused by his claim that
Civil Case No. 3526-V-91 was in fact a "losing cause" for the

complainants since the claims therein for damages were

based on the final decision of the Med-Arbiter declaring the
complainants' act of expelling Salvador from the union to be
illegal. This claim is a mere afterthought which hardly
persuades us. If indeed the respondent was so convinced of
the futility of any defense therein, he should have seasonably
informed the complainants thereof. Rule 15.05, Canon 15 of
the Code of Professional Responsibility expressly provides:
A lawyer, when advising his client, shall give
a candid and honest opinion on the merits
and probable results of the client's case,
neither overstating nor understanding the
prospects of the case.
Then too, if he were unconvinced of any defense, we
are unable to understand why he took all the trouble
of filing a motion to dismiss on the grounds of res
judicata and lack of jurisdiction and of questioning
the adverse ruling thereon initially with this Court
and then with the Court of Appeals, unless, of course,
he meant all of these to simply delay the disposition
of the civil case. Finally, the complainants were not
entirely without any valid or justifiable defense. They
could prove that the plaintiff was not entitled to all
the damages sought by him or that if he were so,
they could ask for a reduction of the amounts
thereof.
We do not therefore hesitate to rule that the respondent is not
free from any blame for the sad fate of the complainants. He
is liable for inexcusable negligence.
WHEREFORE, ATTY. AMADO R. FOJAS is hereby REPRIMANDED
and ADMONISHED to be, henceforth, more careful in the
performance of his duty to his clients.
SO ORDERED.

A.C. No. 3923. March 30, 1993.

CONCORDIA B. GARCIA, complainant, vs. ATTY. CRISANTO L.
FRANCISCO, respondent.

SYLLABUS
1. LEGAL ETHICS; MISCONDUCT OF COUNSEL; VIOLATION OF
OATH NOT DELAY ANY MAN OR MONEY OR MALICE;
SUSPENSION FOR ONE YEAR FROM PRACTICE OF LAW FOR
GROSS ABUSE OF RIGHT OF RECOURSE TO THE COURTS BY
ARGUING A CAUSE THAT IS OBVIOUSLY WITHOUT MERIT.
The cause of the respondent's client is obviously without
merit. The respondent was aware of this fact when he wilfully
resorted to the gambits summarized above, continuously
seeking relief that was consistently denied, as he should have
expected . . . By grossly abusing his right of recourse to the
courts for the purpose of arguing a cause that had been
repeatedly rebuffed, he was disdaining the obligation of the
lawyer to maintain only such actions or proceedings as appear

to him to be just and such defenses only as he believes to be

honestly debatable under the law. By violating his oath not to
delay any man for money or malice, he has besmirched the
name of an honorable profession and has proved himself
unworthy of the trust reposed in him by law as an officer of
the Court . . . For this serious transgression of the Code of
Professional Responsibility, he deserves to be sanctioned, not
only as a punishment for his misconduct but also as a warning
to other lawyers who may be influenced by his example.
Accordingly, he is hereby SUSPENDED for ONE YEAR from the
practice of law and from the enjoyment of all the rights and
privileges appurtenant to membership of the Philippine bar.

3. On October 24, 1989, Lee, through Francisco, filed with the

Regional Trial Court of Quezon City a petition for certiorari and
prohibition with preliminary injunction against Judge Bautista,
Garcia and the other lessors. This was docketed as civil Case
No. Q-89-3833. In filing this petition, Francisco knew or should
have known that it violated the Rule on Summary Procedure
prohibiting the filing of petitions for certiorari, mandamus or
prohibition against any interlocutory order issued by the court.
Francisco claims that what he appealed to the Regional Trial
Court in Civil Case No. Q-89-3833 was the denial of his prayer
for dismissal of Civil Case No. 1455. This is not true. Civil Case
Q-89-3833 was clearly a special civil action and not an appeal.

RESOLUTION
PER CURIAM, p:
In a sworn complaint filed with the Court on October 6, 1992,
Concordia B. Garcia seeks the disbarment of Atty. Crisanto L.
Francisco.
On March 9, 1964, Concordia B. Garcia and her husband
Godofredo, the Dionisio spouses, and Felisa and Magdalena
Baetiong leashed a parcel of land to Sotero Baluyot Lee for a
period of 25 years beginning May 1, 1964. Despite repeated
verbal and written demands, Lee refused to vacate after the
expiration of the lease. Lee claimed that he had an option to
extend the lease for another 5 years and the right of preemption over the property.
In this disbarment case, the complainant claims that Lee's
counsel, respondent Francisco, commenced various suits
before different courts to thwart Garcia's right to regain her
property and that all these proceedings were decided against
Lee. The proceedings stemmed from the said lease contract
and involved the same issues and parties, thus violating the
proscription against forum-shopping.
Respondent, in his comment, says that he inserted in defense
of his client's right only such remedies as were authorized by
law.
The tangle of recourses employed by Francisco is narrated as
follows:
1. On March 29, 1989, Lee, through Francisco, filed a
complaint against Garcia and the other lessors for specific
performance and reconveyance with damages in the Regional
Trial Court of Quezon City. This was docketed as Civil Case No.
Q-89-2118. On June 9, 1989, Garcia filed a motion to dismiss
the complaint on the grounds of failure to state a cause of
action, laches and prescription. The case was dismissed by
Judge Felimon Mendoza on August 10, 1989.
2. On May 29, 1989, Garcia and the other lessors filed a
complaint for unlawful detainer against Lee in the
Metropolitan Trial Court of Quezon City. This was docketed as
Civil Case No. 1455. Through Francisco, Lee filed an answer
alleging as special and affirmative defense the pendency of
Civil Case no. Q-89-2118 in the Regional Trial Court of Quezon
City. On September 5, 1989, Judge Marcelino Bautista issued a
resolution rejecting this allegation on the ground that the
issues before the two courts were separate and different.

On November 13, 1989, Judge Abraham Vera issued an order

enjoining Judge Bautista from proceeding with the trial of the
unlawful detainer case. Upon motion of the complainant,
however, the injunction was set aside and Civil Case No. Q-893833 was dismissed on January 9, 1990. Lee did not appeal.
4. On April 6, 1990, Lee through Francisco, filed a petition for
certiorari and prohibition with prayer for preliminary injunction
with the Court of Appeals against Judge Vera, Judge Singzon,
Garcia and the other lessors. Docketed as CA G.R. Sp No.
20476, the petition assailed the January 9, 1990 order of
Judge Vera dismissing Civil Case No. Q-89-3833. On May 31,
1989, the petition was denied.
5. On June 14, 1990, Judge Singzon decided Civil Case no.
1455 in favor of complainant Garcia and the other lessors. Lee
did not appeal. Instead, on, June 21, 1990, through Francisco
again, he filed a petition against Judge Singzon and the other
lessors for certiorari and annulment of the decision in Civil
Case No. 1455 and damages with prayer for issuance of
preliminary injunction. This was docketed as Civil case No. 905852 in the Regional Trial Court of Quezon City, Branch 98,
presided by Judge Cesar C. Paralejo.
In Francisco's comment before us, he alleges that Civil Case
No. Q-90-5852 is an appeal from the unlawful detainer case.
Again, he lies. Civil Case No. Q-90-5852 was a specified civil
action and not an appeal.
On July 2, 1990, Garcia's group filed an Omnibus Motion to
Dismiss Civil Case No. 90-5852. On July 13, 1990, Judge
Paralejo issued an order enjoining Judge Singzon from
enforcing the decision in that case. Garcia attacked this order
in a petition for certiorari and prohibition with prayer for
preliminary injunction docketed as CA Sp. No. 22392. The
petition was granted by the Court of Appeals on September
19, 1991, on the ground that the judgment in the unlawful
detainer case had come final and executory as June 30, 1990.
6. On September 24, 1991, Garcia filed a motion for execution
in the unlawful detainer case. On September 27, 1991, Lee,
through Francisco, filed a motion to inhibit Judge Singzon and
to defer the hearing of the motion. A writ of execution was
nonetheless issued by Judge Singzon on October 8, 1991.
7. Two days later, Lee, through Francisco, filed with the
Supreme Court a petition for certiorari with preliminary
injunction and temporary restraining order against the Court
of Appeals, Judge Singzon, Garcia and the other lessors. This

Court denied the petition on January 27, 1992, and

reconsideration on April 8, 1992.
VITUG, J.:
8. Finally, Lee, still through Francisco, filed a petition for
certiorari with preliminary injunction against Judge Singzon,
Garcia and the other lessors in the Regional Trial Court of
Quezon City to set aside and declare the writs of execution in
Civil Case No. 1455. This was dismissed on August 4, 1992,
and Lee, through Francisco, filed a motion for reconsideration.
According to Francisco, he was relieved as counsel while this
motion was pending.
A lawyer owes fidelity to the cause of his client but not at the
expense of truth and the administration of justice.
The cause of the respondent's client in obviously without
merit. The respondent was aware of this fact when he wilfully
resorted to the gambits summarized above, continuously
seeking relief that was consistently denied, as he should have
expected. He thereby added to the already clogged dockets of
the courts and wasted their valuable time. He also caused
much inconvenience and expense to the complainant, who
was obliged to defend herself against his every move.
By grossly abusing his right of recourse to the courts for the
purpose of arguing a cause that had been repeatedly
rebuffed, he was disdaining the obligation of the lawyer to
maintain only such actions or proceedings as appear to him to
be just and such defense only as he believes to be honestly
debatable under the law. By violating his oath not to delay
any man for money or malice, he has besmirched the name of
an honorable profession and has proved himself unworthy of
trust reposed in him by law as an officer of the Court.
Atty. Crisanto l. Francisco took his oath as a lawyer on March
2, 1956. Considering his age and experience in the practice of
the laws, he should have known better than to trifle with it
and to use it as an instrument for harassment of the
complainant and the misuse of judicial processes. For this
serious transgression of the Code of Professional
Responsibility, he deserves to be sanctioned, not only as
punishment for his misconduct but also as a warning to other
lawyers who may be influenced by his example.
Accordingly, he is hereby SUSPENDED for ONE YEAR from the
practice of law and from the enjoyment of all the rights and
privileges appurtenant to membership in the Philippine bar.
Let a copy of this Resolution be served immediately on the
respondent and circularized to all courts and the Integrated
Bar of the Philippines.
SO ORDERED.
G.R. No. 98149 September 26, 1994
JOSE V. DEL ROSARIO, petitioner, vs.
HON. COURT OF APPEALS and DE DIOS MARIKINA
TRANSPORTATION CO., INC., respondents.
Ponce Enrile, Cayetano, Reyes & Manalastas for petitioner.
Orlando B. Braga for private respondent.

Petitioner suffered physical injuries, requiring two (2) major

operations, when he fell from, and then was dragged along
the asphalted road by, a passenger bus operated by private
respondent transportation company. The incident occurred
when the bus driver bolted forward at high speed while
petitioner was still clinging on the bus door's handle bar that
caused the latter to lose his grip and balance. The refusal of
private respondent to settled petitioner's claim for damages
constrained petitioner to file, on 26 June 1985, a complaint for
damages against private respondent.
After the reception of evidence, the trial court, on 11
December 1989, rendered its decision, the dispositive portion
reading thusly:
WHEREFORE, judgment is hereby rendered
dismissing defendant De Dios Marikina
Transportation Co., Inc.'s counterclaim for lack of
merit and ordering said defendant to pay plaintiff
Jose V. Del Rosario: (a) the sum of P76,944.41, as
actual and compensatory damages; (b) the sum of
P15,000.00, as moral and exemplary damages; and
(c) the sum of P33,641.50, as attorney's fees, a s well
as to pay the costs of suit; and, as regards the thirdparty complaint herein, ordering third-party
defendant First Quezon City Insurance Co., Inc. to
indemnify third-party plaintiff
De Dios Marikina Transportation Co., Inc. in the sum
of P12,000.00, with interest thereon at the legal rate
from date of filing of the third-party complaint on
August 20, 1985, until full payment thereof. Further,
there being no satisfactory warrant, therefor, the
Court hereby dismisses the rest of the claims in the
complaint and third-party complaint herein.
IT IS SO ORDERED.
On appeal to it, the Court of Appeals affirmed in toto the
findings of fact of the trial court, as well as the grant to
petitioner of damages, but it reduced the award for attorney's
fees from P33,641.50 to P5,000.00. Petitioner's motion for
reconsideration questioning the reduction of attorney's fees
was denied by the appellate court. Hence, this petition raising
this sole issue.
We see merit in the petition.
There is no question that a court may, whenever it deems it
just and equitable, allow the recovery by the prevailing party
of attorneys fees. 1 In determining the reasonableness of such
fees, this Court in a number of cases 2 has provided various
criteria which, for convenient guidance, we might collate
thusly:
a) the quantity and character of the services
rendered;
b) the labor, time and trouble involved;

c) the nature and importance of the litigation;

d) the amount of money or the value of the property
affected by the controversy;
e) the novelty and difficulty of questions involved;
f) the responsibility imposed on counsel;

GRIO-AQUINO, J.:
The issue in this case is whether or not an attorney who was
engaged on a contingent fee basis may, in order to collect his
fees, prosecute an appeal despite his client's refusal to appeal
the decision of the trial court.

i) the customary charges of the bar for similar

services;

On September 7, 1963, the petitioner, a practicing attorney,

entered into a written agreement with the private respondent
Rosa del Rosario to appear as her counsel in a petition for
probate of the holographic will of the late Maxima C. Reselva.
Under the will, a piece of real property at Sales Street, Quiapo,
Manila, was bequeathed to Del Rosario. It was agreed that
petitioner's contigent fee would be thirty-five per cent (35%)
of the property that Rosa may receive upon the probate of the
will (Annex "A", p. 59, Rollo).

j) the character of employment, whether casual or for

establishment client;

In accordance with their agreement, Leviste performed the

following services as Del Rosario's counsel:

g) the skill and experience called for in the

performance of the service;
h) the professional character and social standing of
the lawyer;

k) whether the fee is absolute or contingent (it being

the rule that an attorney may properly charge a
higher fee when it is contingent than when it is
absolute); and

(1) Thoroughly researched and studied the law on

probate and succession;
(2) Looked for and interviewed witnesses, and took
their affidavits;

1) the results secured.

In this instance, the complaint for damages was instituted by
petitioner in June 1985, following the refusal of private
respondent to settle petitioner's claim, and the decision
thereon was promulgated by the court a quo only in
December 1989 or about four years and six months later.
Several pleadings were filed and no less than twenty
appearances were made by petitioner's counsel, not counting
the various other pleadings ultimately filed with the Court of
Appeals and now before this Court. Given the nature of the
case, the amount of damages involved, and the evident effort
exerted by petitioner's counsel, the trial court's award of
attorney's fees for P33,641.50 would appear to us to be just
and reasonable.
WHEREFORE, the instant petition is hereby GRANTED, and the
decision of the Court of Appeals is MODIFIED by REINSTATING
the trial court's award of attorney's fees.

(3) Filed the petition for. probate is Special

Proceeding No. 58325;
(4) Made the proper publications;
(5) Presented at the trial the following witnesses:
a) Eleuterio de Jesus
b) Lucita de Jesus
c) Purita L. Llanes
d) Rita Banu
e) Jesus Lulod.

SO ORDERED
G.R. No. L-29184 January 30, 1989
BENEDICTO LEVISTE, petitioner, vs.
THE COURT OF APPEALS, HON. JUDGE LUIS B. REYES,
COURT OF FIRST INSTANCE OF MANILA, ROSA DEL
ROSARIO, RITA BANU, CARMEN DE GUZMAN-MARQUEZ,
JESUS R. DE GUZMAN, RAMON R. DE GUZMAN, JACINTO
R. DE GUZMAN and ANTONIO R. DE
GUZMAN, respondents.
Benedicto Leviste for and in his own behalf.
Gatchalian, Ignacio & Associates for respondents de Guzman.

On August 20, 1965, Leviste received a letter from Ms. Del

Rosario, informing him that she was terminating his services
as her counsel due to "conflicting interest." This consisted,
according to the letter, in petitioner's moral obligation to
protect the interest of his brother-in-law, Gaudencio M. Llanes,
whom Del Rosario and the other parties in the probate
proceeding intended to eject as lessee of the property which
was bequeathed to Del Rosario under the will (Annex "B", p.
60, Rollo).
On September 20, 1965, petitioner filed a "Motion to
Intervene to Protect His Rights to Fees for Professional
Services." (Annex "B", p. 60, Rollo.)

In an order dated November 12, 1965 the trial court denied

his motion on the ground that he had "not filed a claim for
attorney's fees nor recorded his attorney's lien." (p. 3, Rollo.)
On November 23, 1965, petitioner filed a "Formal Statement
of Claim for Attorney's Fees and Recording of Attorney's Lien,'
which was noted in the court's order of December 20, 1965
(Annexes "D" and "E", pp. 63 & 64, Rollo).
Although the order denying his motion to intervene had
become final, petitioner continued to receive copies of the
court's orders, as well the pleadings of the other parties in the
case. He also continued to file pleadings. The case was
submitted for decision without the respondents' evidence.
On November 23, 1966, Del Rosario and Rita Banu, the special
administratrix-legatee, filed a "Motion To Withdraw Petition for
Probate" alleging that Del Rosario waived her rights to the
devise in her favor and agreed that the De Guzman brothers
and sisters who opposed her petition for probate, shall inherit
all the properties left by the decedent. (Annex "F", p. 65,
Rollo.)
In an order of April 13, 1967 the trial court denied the motion
to withdraw the petition for being contrary to public policy
(Annex "G", pp. 66-67, Rollo).
Nonetheless, on August 28, 1967, the court disallowed the
will, holding that the legal requirements for its validity were
not satisfied as only two witnesses testified that the will and
the testatrix's signature were in the handwriting of Maxima
Reselva.
The petitioner filed an appeal bond, notice of appeal, and
record on appeal. The private respondents filed a motion to
dismiss the appeal on the ground that petitioner was not a
party in interest.
The petitioner opposed the motion to dismiss his appeal,
claiming that he has a direct and material interest in the
decision sought to be reviewed. He also asked that he be
substituted as party-petitioner, in lieu of his former client, Ms.
Del Rosario.
On March 28, 1968, the trial judge dismissed the appeal and
denied petitioner's motion for substitution.
The petitioner filed in the Court of Appeals a petition
for mandamus (CA-G.R. No. 41248) praying that the trial court
be ordered to give due course to his appeal and to grant his
motion for substitution.
On May 22, 1968, the Court of Appeals dismissed the petition
for being insufficient in form and substance as the petitioner
did not appear to be the proper party to appeal the decision in
Special Proceeding No. 58325 (Annex 1, p. 77, Rollo).
Upon the denial of his motion for reconsideration, petitioner
appealed by certiorari to this Court, assigning the following
errors against the Court of Appeals' resolution:
1. The Court of Appeals erred in finding that the
petitioner appears not to be the proper party to

appeal the decision in Sp. Proc. No. 58325 of the

Court of First Instance of Manila.
2. Assuming the petitioner's right of appeal is
doubtful, the Court of Appeals erred in dismissing his
petition for mandamus; and
3. The Court of Appeals erred in not reversing the
decision in Sp. Proc. No. 58325 denying the probate
of the holographic will of the late Maxima C. Reselva,
said decision being patently erroneous.
Under his first assignment of error, petitioner argues that by
virtue of his contract of services with Del Rosario, he is a
creditor of the latter, and that under Article 1052 of the Civil
Code which provides:
ART. 1052. If the heir repudiates the inheritance to
the prejudice of his own creditors, the latter may
petition the court to authorize them to accept it in
the name of the heir.
The acceptance shall benefit the creditors only to an
extent sufficient to cover the amount of their credits.
The excess, should there be any, shall in no case
pertain to the renouncer, but shall be adjudicated to
the persons to whom, in accordance with the rules
established in this Code, it may belong.
he has a right to accept for his client Del Rosario to the extent
of 35% thereof the devise in her favor (which she in effect
repudiated) to protect his contigent attorney's fees.
The argument is devoid of merit. Article 1052 of the Civil Code
does not apply to this case. That legal provision protects the
creditor of a repudiating heir. Petitioner is not a creditor of
Rosa del Rosario. The payment of his fees is contingent and
dependent upon the successful probate of the holographic
will. Since the petition for probate was dismissed by the lower
court, the contingency did not occur. Attorney Leviste is not
entitled to his fee.
Furthermore, Article 1052 presupposes that the obligor is an
heir. Rosa del Rosario is not a legal heir of the late Maxima C.
Reselva. Upon the dismissal of her petition for probate of the
decedent's will, she lost her right to inherit any part of the
latter's estate. There is nothing for the petitioner to accept in
her name.
This Court had ruled in the case of Recto vs. Harden, 100 Phil.
1427, that "the contract (for contingent attorney's fees)
neither gives, nor purports to give, to the appellee (lawyer)
any right whatsoever, personal or real, in and to her (Mrs.
Harden's) aforesaid share in the conjugal partnership. The
amount thereof is simply a basis for thecomputation of said
fees."
The Court of Appeals did not err in dismissing the petition
for mandamus, for while it is true that, as contended by the
petitioner, public policy favors the probate of a will, it does not
necessarily follow that every will that is presented for probate,
should be allowed. The law lays down procedures which
should be observed and requisites that should be satisfied
before a will may be probated. Those procedures and

requirements were not followed in this case resulting in the

disallowance of the will. There being no valid will, the motion
to withdraw the probate petition was inconsequential.
Petitioner was not a party to the probate proceeding in the
lower court. He had no direct interest in the probate of the
will. His only interest in the estate is an indirect interest as
former counsel for a prospective heir. In Paras vs. Narciso, 35
Phil. 244, We had occassion to rule that one who is only
indirectly interested in a will may not interfere in its probate.
Thus:
... the reason for the rule excluding strangers from
contesting the will, is not that thereby the court
maybe prevented from learning facts which would
justify or necessitate a denial of probate, but rather
that the courts and the litigants should not be
molested by the intervention in the proceedings of
persons with no interest in the estate which would
entitle them to be heard with relation thereto. (Paras
vs. Narciso, 35 Phil. 244, 246.)
Similary, in Morente vs. Firmalino, 40 O.G. 21st Supp. 1, We
held:
We are of the opinion that the lower court did not err
in holding that notice of an attorney's lien did not
entitle the attorney-appellant to subrogate himself in
lieu of his client. It only gives him the right to collect
a certain amount for his services in case his client is
awarded a certain sum by the court.
WHEREFORE, the petition for certiorari is denied for lack of
merit. Costs against the petitioner.
SO ORDERED.
G.R. No. 117438 June 8, 1995
RAUL SESBREO, petitioner, vs.
HON, COURT OF APPEALS, and PATRICIA GIAN, SOTERO
BRANZUELA, ANDRES C. YPIL, SANTIAGO BACAYO,
BRIGIDO COHITMINGAO, VICTORINO DINOY, GUILLERMO
MONTEJO and EMILIO RETUBADO,respondents.

ROMERO, J.:
Of interest to all law practitioners is the issue at bench,
namely, whether the Court of Appeals had the authority to
reduce the amount of attorney's fees awarded to petitioner
Atty. Raul H. Sesbreo, notwithstanding the contract for
professional services signed by private respondents.
The antecedent facts of the case follow.
Fifty-two employees sued the Province of Cebu and then
Governor Rene Espina for reinstatement and
backwages. 1 Herein petitioner, Raul H. Sesbreo, replaced the
employees' former counsel Atty. Catalino Pacquiao.

Thirty-two of the fifty-two employees signed two documents

whereby the former agreed to pay petitioner 30% as
attorney's fees and 20% as expenses to be taken from their
back salaries.
On September 12, 1974, the trial court rendered a decision
ordering the Province of Cebu to reinstate the petitioning
employees and pay them back salaries. Said decision became
final and executory after it was affirmedin toto by the Court of
Appeals and the petition to review the appellate decision,
denied by this Court in 1978. 2
A compromise agreement was entered into by the parties
below in April 1979 whereby the former employees waived
their right to reinstatement among others. Likewise, pursuant
to said compromise agreement, the Province of Cebu released
P2,300,000.00 to the petitioning employees through petitioner
as "Partial Satisfaction of Judgment." The amount represented
back salaries, terminal leave pay and gratuity pay due to the
employees.
Sometime November and December 1979, ten employees,
herein private respondents, 3 filed manifestations before the
trial court asserting that they agreed to pay petitioner 40% to
be taken only from their back salaries.
The lower court issued two orders, with which petitioner
complied, requiring him to release P10,000.00 to each of the
ten private respondents and to retain 40% of the back salaries
pertaining to the latter out of the P2,300,000.00 released to
him.
On March 28, 1980, the trial court fixed petitioner's attorney's
fees at 40% of back salaries, terminal leave, gratuity pay and
retirement benefits and 20% as expenses, or a total of 60% of
all monies paid to the employees.
Private respondents' motion for reconsideration was granted
and on June 10, 1980, the trial court modified the award after
noting that petitioner's attorney's lien was inadvertently
placed as 60% when it should have been only 50%. The
dispositive portion of the order reads:
WHEREFORE, in view of all the foregoing the
order of this Court fixing 60% as attorney's
fee[s] of Atty. Sesbreo should be 50% of all
monies which the petitioners (Suico, et al.)
may receive from the Provincial
Government.
Obviously not satisfied with the attorney's fees fixed by the
trial court, petitioner appealed to the Court of Appeals
claiming additional fees for legal services before the Supreme
Court, reimbursement for expenses and a clear statement
that the fee be likewise taken from retirement pay awarded to
his clients. Unfortunately, the respondent appellate court did
not agree with him as the generous award was further
reduced. 4
The appellate court noted that in this jurisdiction, attorney 's
fees are always subject to judicial control and deemed the
award of 20% of the back salaries awarded to private
respondents as a fair, equitable and reasonable amount of
attorney's fee. The decretal portion of the decision reads:

WHEREFORE, the questioned order is MODIFIED. The

attorney's fees due Atty. Raul Sesbreo is fixed at an
amount equivalent to 20% of all back salaries which
the Province of Cebu has awarded to herein 10
petitioners. 5
Hence this petition for review where he claims that attorney's
fees amounting to 50% of all monies awarded to his clients as
contingent fees should be upheld for being consistent with
prevailing case law and the contract of professional services
between the parties. He adds that since private respondents
did not appeal, they are not entitled to affirmative relief other
than that granted in the regional trial court.
We find no reversible error in the decision of the Court of
Appeals and vote to deny the petition.

lawyer, the following to be taken from our back

salaries:
30% as attorney's fees
20% as expenses
That we enter into agreement in order to be paid our
back salaries as early as possible and so that we may
be reinstated as early as possible.
A stipulation on a lawyer's compensation in a written contract
for professional services ordinarily controls the amount of fees
that the contracting lawyer may be allowed, unless the court
finds such stipulated amount unreasonable unconscionable. 12

Respondent court found that the contract of professional

services entered into by the parties 6 authorized petitioner to
take a total of 50% from the employees' back salaries only.
The trial court, however, fixed the lawyer's fee on the basis of
all monies to be awarded to private respondents.

A contingent fee arrangement is valid in this jurisdiction 13 and

is generally recognized as valid and binding but must be laid
down in an express contract. 14 The amount of contingent fees
agreed upon by the parties is subject to the stipulation that
counsel will be paid for his legal services only if the suit or
litigation prospers. A much higher compensation is allowed as
contingent fees in consideration of the risk that the lawyer
may get nothing if the suit fails.

Fifty per cent of all monies which private respondents may

receive from the provincial government, according to the
Court of Appeals, is excessive and unconscionable, not to say,
contrary to the contract of professional services. 7 After
considering the facts and the nature of the case, as well as
the length of time and effort exerted by petitioner, respondent
court reduced the amount of attorney's fees due him.

Contingent fee contracts are under the supervision and close

scrutiny of the court in order that clients may be protected
from unjust charges. 15 Its validity depends in large measure
on the reasonableness of the stipulated fees under the
circumstances of each case. 16

It is a settled rule that what a lawyer may charge and receive

as attorney's fees is always subject to judicial control.8 A
lawyer is primarily an officer of the court charged with the
duty of assisting the court in administering impartial justice
between the parties. When he takes his oath, he submits
himself to the authority of the court and subjects his
professional fees to judicial control. 9
As stated by the Court in the case of Sumaong v. Judge:

10

A lawyer is not merely the defender of his client's

cause and a trustee of his client in respect of the
client's cause of action and assets; he is also, and
first and foremost, an officer of the court and
participates in the fundamental function of
administering justice in society. It follows that a
lawyer's compensation for professional services
rendered are subject to the supervision of the court,
not just to guarantee that the fees he charges and
receives remain reasonable and commensurate with
the services rendered, but also to maintain the
dignity and integrity of the legal profession to which
he belongs. Upon taking his attorney 's oath as an
officer of the court, a lawyer submits himself to the
authority of the courts to regulate his right to
professional fees. 11
In the case at bench, the parties entered into a contingent fee
contract. The Agreement provides:
WE, the undersigned petitioners in the case
of POLICRONIO BELACHO, ET AL., VS. RENE ESPINA
ET AL., hereby agree to pay Atty. Sesbreo, our

When the courts find that the stipulated amount is excessive

or the contract is unreasonable or unconscionable, or found to
have been marred by fraud, mistake, undue influence or
suppression of facts on the part of the attorney, public policy
demands that said contract be disregarded to protect the
client from unreasonable exaction. 17
Stipulated attorney's fees are unconscionable whenever the
amount is by far so disproportionate compared to the value of
the services rendered as to amount to fraud perpetrated upon
the client. This means to say that the amount of the fee
contracted for, standing alone and unexplained would be
sufficient to show that an unfair advantage had been taken of
the client, or that a legal fraud had been perpetrated on
him. 18
The decree of unconscionability or unreasonableness of a
stipulated amount in a contingent fee contract, will not
however, preclude recovery. It merely justifies the court's
fixing a reasonable amount for the lawyer's services.
Courts may always ascertain, if the attorney's fees are found
to be excessive, what is reasonable under the
circumstances. Quantum meruit, meaning "as much as he
deserves," is used as the basis for determining the lawyer's
professional fees in the absence of a contract. Factors such as
the time spent and extent of services rendered; novelty and
difficulty of the questions involved; importance of the subject
matter; skill demanded; probability of losing other
employment as a result of acceptance of the proffered case;
customary charges for similar services; amount involved in
the controversy and the benefits resulting to the client;
certainty of compensation; character of employment; and

professional standing of the lawyer, are considered in

determining his fees. 19
There is nothing irregular about the respondent court's finding
that the 50% fee of petitioner is unconscionable As aptly put
by the court:
It effectively deprives the appellees of a meaningful
victory of the suit they have passionately pursued.
Balancing the allocation of the monetary award, 50%
of all monies to the lawyer and the other 50% to be
allocated among all his 52 clients, is too lop-sided in
favor of the lawyer. The ratio makes the practice of
law a commercial venture, rather than a noble
profession.
. . . Also, the 52 employees who are the plaintiffs in
the aforementioned civil case were dismissed from
employment, their means of livelihood. All 52 hired
claimant-appellant as counsel so that they could be
reinstated and their source of income restored. It
would, verily be ironic if the counsel whom they had
hired to help would appropriate for himself 50% or
even 60% of the total amount collectible by these
employees. Here is an instance where the courts
should intervene. 20
Considering the nature of the case, which is a labor case, the
amount recovered and petitioner's participation in the case,
an award of 50% of back salaries of his 52 clients indeed
strikes us as excessive. Under the circumstances, a fee of
20% of back salaries would be a fair settlement in this case. In
any event, this award pertains only to the ten private
respondents herein. Petitioner has already been compensated
in the amount of 50% of all monies received, by the rest of his
clients in the case below.
WHEREFORE, in view of the foregoing, the petition is DENIED
and the appealed decision AFFIRMED.
SO ORDERED.
G.R. No. L-67970 January 15, 1988
JOSE ABROGAR and JUANA DESEAR, petitioners, vs.
INTERMEDIATE APPELLATE COURT, SOCORRO DESEAR
and BRIGIDA DESEAR, respondents.

executory judgment in the said civil case amounting to

P2,553.00 only, their two parcels of land with a combined
market value of P75,000.00, were levied on execution and
advertised for public sale by the Provincial Sheriff. 3 The
auction sale was scheduled for March 27, 1971 but the same
did not push through because the trial court, upon motion of
private respondent Socorro Desear, issued an order on March
26, 1971, or one day before the date fixed, postponing the
auction sale on condition that the publication fees would be
paid by the movant. The movant did not pay as ordered.
Instead of proceeding with the auction sale on March 27,
1971, considering that there was no valid postponement, the
condition thereof not having been complied with, the
Provincial Sheriff of Pangasinan nevertheless held the auction
almost four months later, on July 16, 1971, when the two
parcels of land were sold, for, as earlier stated, P2,553.00
only. Subsequently, a Sheriffs Certificate of Sale was issued.
There was no showing that private respondent Socorro Desear
agreed to the July 16, 1971 auction sale. However, it is
indisputable that there was neither new notice nor new
publication of the said auction sale. 4
The trial court ruled that the Sheriffs Final Sale was null and
void for lack of notice and publication and awarded attorney's
fees in the amount of P2,000.00 in favor of the private
respondents. 5
Now before us, the petitioners assigned several errors of the
respondent appellate court. We summarize these assigned
errors into two, to wit: (1) in ruling that there was no valid
postponement of the date of the auction sale originally set for
March 27, 1971; and (2) in awarding attorney's fees of
P2,000.00 in the absence of any prayer and legal bases
therefor. 6
As correctly pointed out by the respondent court (and the trial
court), the proper notice and publication in a newspaper was
made for the sale at public auction scheduled for March 27,
1971. On motion, however, of private respondents, the trial
court in an Order dated March 26, 1971, directed the sale set
for March 27, 1971 postponed provided the movant would pay
the publication fees, otherwise the public auction would
continue at a date to be designated by the Sheriff. The
movant did not pay the publication fees hence there was no
postponement of the public auction sale since the condition
precedent or suspensive condition (that of paying the
publication fees) was not complied with. 7 There was therefore
no valid postponement of the public auction sale. And there
was no written consent of debtor and creditor and neither was
there any agreement in writing by the parties authorizing the
sheriff or the officer making the sale to adjourn the same "to
any date agreed upon in writing by the parties." 8

SARMIENTO, J.:

This is a Petition for Review on certiorari of the Decision of the

then Intermediate Appellate Court, 1 now Court of Appeals,
affirming in toto the decision of the trial court which annulled
a sheriff sale.
The petitioners and private respondents were judgment
plaintiffs and defendants, respectively, in a civil case 2decided
by the trial court and affirmed by the appellate court. For
failure of the private respondents to satisfy a final and

The public auction sale set for March 27, 1971, should have
been held considering that the said schedule complied with all
the requirements of law regarding a public sale, including
notice and publication. The officer may adjourn the sale from
day to day if it is necessary to do so for lack of time to
complete the sale on the date fixed in the notice. 9 But he
may not adjourn to another date unless with the written
consent of the parties. 10 This was precisely the point of the
appellate court when it stressed the fact that there was no
written agreement between the debtor and the creditor to
postpone the sale, and in fact there was no sale held on the

scheduled date 11 to warrant the application of Section 24,

Rule 39 of the Revised Rules of Court.
Considering, therefore, that there was no valid postponement
of the original date of the auction sale on March 27, 1971,
"then the alleged public auction sale on July 16, 1971 or close
to four months after the original date of sale on March 27,
1971 without the proper notice and publication is null and
void" as correctly pointed out by the respondent court. 12
The second issue raised by the petitioners is meritorious.
There is neither an allegation nor evidence to support the
award of P2,000.00 by way of attorney's fees in favor of
private respondents. The complaint does not pray for
attorney's fees. 13 Even the transcript of stenographic notes in
the trial does not contain any testimony to support an award
of attorney's fees. 14 As succinctly put, the claim for attorney's
fees was neither pleaded nor proved !
The exercise of judicial discretion in the award of attorney's
fees under Article 2208 (ii) of the New Civil Code demands a
factual, legal, and equitable justification. Without such
justification, the award is a conclusion without a premise, its
basis being improperly left to speculation and conjecture. 15
Attorney's fees are recoverable not as a matter of right. 16 It is
the import of Article 2208 that the award of attorney's fees is
an exception and that the decision must contain an express
finding of fact to bring the case within the exception and
justify the grant of attorney's fees. "Just and equitable" under
paragraph 11, Article 2208, New Civil Code is not a matter of
feelings, but demonstration. 17 The reason for the award of
attorney's fees must be stated in the text of the court's
decision, otherwise, if it is stated only in the dispositive
portion of the decision, the same must be disallowed on
appeal. 18
In the light of all the foregoing, the award of attorney's fees in
favor of the private respondents in the case before us has no
basis. Hence, attorney's fees must be disallowed.
WHEREFORE, the Decision of the respondent court declaring
null and void the public auction sale on July 16, 1971 for lack
of notice and publication, is hereby AFFIRMED. However, the
award of attorney's fees is REVERSED. Costs against
petitioners.
This Decision is IMMEDIATELY EXECUTORY.

G.R. No. 97255 August 12, 1994

SOLID HOMES, INC., petitioner,
vs.
HON. COURT OF APPEALS, INVESTCO, INC., ANGELA
PEREZ STALEY, and ANTONIO PEREZ, respondents.
Rene A. Diokno for petitioner.

RESOLUTION

VITUG, J.:
An action for collection of sums of money, damages and
attorney's fees was filed with the Regional Trial Court (Civil
Case No. 40615) of Pasig by private respondents Investco,
Angela Perez Staley and Antonio Perez Jr. against petitioner
Solid Homes, Inc.
Private respondents averred that, on 07 September 1976,
they sold, under an agreement entitled "contract to sell and to
buy," to Solid Homes six (6) parcels of land in Quezon City and
Marikina, with an area of 704,443 sq.m., for a total selling
price of P10,211,075.00 payable (in accordance with
paragraph 1 thereof), as follows:
a) P100,000.00, Philippine Currency, as part down
payment upon signing and execution of this contract
receipt of which in full is hereby acknowledged;
b) P2,042,215.00, Philippine Currency, as down
payment payable on the following dates:
1 July 22, 1977 P400,000.00
2 October 22, 1977 711,107.50
3 January 22, 1978 711,107.50
It is hereby agreed that the above down payment
included the first down payment of P199,000.00.
Should the FIRST PARTY obtain titles to the properties
above-described after July 22, 1977, the due dates of
the down payment and all subsequent payments on
the balance shall be adjusted accordingly.
c) The balance of P8,188,860.00 shall be payable in
ten (10) semi-annual installments for a period of five
(5) years and shall earn interest at the rate of twelve
(12%) per annum, the first installment to be due on
July 22, 1978. The installment due together with the
Schedule of Payments attached hereto as Schedule
"A" and made an integral part of this contract (Exh.
A). 1
The second paragraph of Exhibit "A" stipulated that should
Solid Homes fail to pay any of the installments on their
respective due dates, an interest of one percent (1%) per
month on the defaulted amount would be paid for up to two
months or pro-rata thereof; thereafter, should the installment
due, as well as the interest thereon, still remain unpaid, the
entire balance of the purchase price would then become
immediately due and demandable. Such due and demandable
sum would be payable within thirty (30) days, counted from
the expiration of the 2-month period, without further need for
judicial action.
Private respondents asserted that Solid Homes violated the
terms of the agreement by refusing to pay the balance of
P4,800,282.91 and by failing to negotiate a settlement with
the tenants and squatters of the property despite its receipt
from Investco of P350,000.00 for that specific purpose.

The trial court rendered judgment on 14 February 1985; the

dispositive portion read:
WHEREFORE, judgment is hereby rendered ordering
the defendant to pay the plaintiffs:
1) The amount of P4,800,282.91 with interest thereof
at the rate of one percent per month from February
23, 1981, until fully paid;
2) The amount of P99,559.00 representing cost of
science and transfer taxes which defendant credited
to its account with interest at the legal rate from the
filing of the complaint;
3) The amount of P250,000.00 to cover attorney's
fees and litigation expenses. 2
On appeal, the Court of Appeals (CA-G.R. CV No. 13400),
modified the trial court's judgment and rendered its own
decision, dated 21 January 1991, resolving thusly:
PREMISES CONSIDERED, the judgment of the trial
court is hereby modified by ordering defendantappellant to pay plaintiff the amount of
P4,800,282.91 with interest thereon at the rate of
one percent per month from March 22, 1982. The
amount of attorney's fees is hereby reduced from
P250,000.00 to P50,000.00. The decision is
AFFIRMED in all other aspects. 3
In the instant petition for review, petitioner Solid Homes
argues (a) that the Court of Appeals should not have awarded
attorney's fees, there being an absence of any special finding
of fact to justify such award, and (b) that it erred in declaring
due and demandable the entire unpaid balance still owing to
private respondents.
The Second Division of this Court required respondents to
comment on the petition in its Resolution of 22 April 1991.
Meanwhile, Atty. Alejandro Barin withdrew as counsel for
respondents Investco, Inc., Angela Perez Staley and Antonio
Perez, Jr. 4 We required private respondents to submit the
name and address of their new counsel; to this day, no
compliance has yet been made. In our resolution, dated 01
December 1993, we required the parties to move in the
premises and to advise the Court whether "supervening
events may have rendered this case moot and academic." 5

Solid Homes, Inc., plaintiff versus AFPMBAI, Investco,

Inc., and Register of Deeds for Pasig covering titles
registered in Pasig, Metro Manila, both for
nullification of the said second deed of sale over the
same properties involved in the instant case.
Quezon City RTC Civil Case No. 46570 was decided in
favor of plaintiffs, Solid Homes, Inc.; on appeal, the
Court of Appeals (CA G.R. No. 22365) reversed the
decision; same was elevated to the Supreme Court
where it is pending in SC G.R. No. 100437.
Pasig RTC, Civil Case No. 52999 was decided in favor
of plaintiff Solid Homes, Inc.; defendants appealed to
the Court of Appeals (CA G.R. No. 27398), which
affirmed the RTC Decision; on the main cause of
action Petition for Review by this to this Honorable
Court is pending under G.R. No. 104769.
Under the circumstances, herein petitioner, in
compliance with the Resolution dated December 1,
1993, hereby manifests that supervening events
since the Petition herein was filed has not rendered
this case as moot and academic, considering that the
issue involved is the amount to be paid in SOLID
HOMES, INC. as balance on the consideration of the
original sale by Investco, Inc. to it and the
concomitant transfer of titles to the latter upon
payment thereof, whereas in G.R. No. 100437 and
G.R. No. 104769, the issue is whether the second
buyer AFPMBAI had actual or constructive notice of
the prior sale by Investco, Inc. to herein Petitioner,
Solid Homes, Inc. 6
As of this late date, the Court has yet to hear from private
respondents. Given the premises, and in order to permit this
case to be finally resolved and terminated, the required
comment on the petition for review should now be, as it is
hereby, dispensed with.
Article 2208 of the Civil Code allows attorney's fees to be
awarded by a court when its claimant is compelled to litigate
with third persons or to incur expenses to protect his interest
by reason of an unjustified act or omission of the party from
whom it is sought. While judicial discretion is here extant, an
award thereof demands, nevertheless, a factual, legal or
equitable justification. The matter cannot and should not be
left to speculation and conjecture (Mirasol vs. De la Cruz, 84
SCRA 337; Stronghold Insurance Company Inc. vs. Court of
Appeals, 173 SCRA 619).

Petitioner submitted its compliance and manifested thusly:

In the meantime, on April 15, 1985 before judgment
was rendered by the RTC in Civil Case No. 40615
Investco, Inc. (respondent herein) sold the very same
parcels of land involved in said case, in favor of
Armed Forces of the Philippines Mutual Benefit
Association, Inc. (AFPMBAI)
Solid Homes, Inc. (herein petitioner) filed Civil Case
No. Q-46570 RTC Quezon City entitled 'Solid Homes,
Inc., plaintiff versus AFPMBAI, Investco, Inc. and the
Register of Deeds of Quezon City covering titles
registered in Quezon City and Civil Case No. 52999

In the case at bench, the records do not show enough basis

for sustaining the award for attorney's fees and to adjudge its
payment by petitioner. On the contrary, the appellate court
itself has found that petitioner's act of withholding payment
could not be said to be all that unjustified. The disagreement
of the parties on the demandability of the amount still due
and the accrual date of interest has persisted largely because
of supervening circumstances and the perceived
inexplicitness of the contract itself. The decision of the
appellate court, has, in fact, reversed that of the trial court on
the imposition of interest from 23 February 1981, thus
upholding, which we similarly find to be in order, the position
of petitioner that the accrual dated should instead start only
on 28 March 1982.

Relative to the demandability of the entire unpaid balance, we

agree with, and so adopt as our own that of respondent
court; viz:
The amount actually paid on account of the contract
to buy and sell (Exh. A or 1) is not an area of
controversy in the first cause of action. The sum of
P2,042,215.00 corresponding to the down payment,
as well as P4,084,430.00 with respect to the first four
semi-annual installments and a portion of the fifth
installment, had been received making a total of
P6,126,645.00. It is conceded that a balance of
P4,800,282.91 is left unpaid. The dispute is with
respect to the period when defendant had defaulted
and, consequently, when payment of interest shall
begin. The plaintiffs claim that said period should
start on February 23, 1981; while the defendant
contends that the period must be adjusted should
the titles be obtained by the plaintiff corporation
after July 22, 1977, as provided in Par. 1(b) of the
contract to sell and to buy. Considering that titles
were actually transferred to Investco, Inc. between
March 21 to March 28, 1979, the defendant avers
that the original schedule of payment must not be
followed and the 5th installment shall only be due on
March 22, 1982.
xxx xxx xxx
It is undisputed that appellant Solid Homes had made
a total payment of P6,126,645.00 leaving a balance
of P4,800,282.91, which refers to the 6th to the 10th
installments. Of the 5th installment due on July 22,
1980, the following payments were made by
appellant:
Oct. 30, 1980 to Nov. 10, 1980 P150,000.00
Nov. 18, 1980 to Dec. 10, 1980 270,000.00
Dec. 18, 1980 to Jan. 14, 1981 101,853.12
Jan. 20 to Feb. 12, 1981 95,000.00
Feb. 16 to Feb. 19, 1981 115,000.00

P731,853.12
Thereafter, no further payment was made by
appellant contending that under the provisions of
paragraph 1(b) of the contract, the payment
schedule should be adjusted. The said provisions
states as follows:
Par. 1, sub-par. (b)
Should the FIRST PARTY (plaintiff Investco)
obtain titles to the properties abovedescribed after July 22, 1977, the due dates
of the downpayment and the subsequent
payments on the balance shall be adjusted
accordingly.'
Admittedly, the subject titles were obtained during
the period of March 21, to March 28, 1979, or after
July 22, 1977 (Exhs. D to 1 and Exhs. 2 to 10). Thus,
implementing par. 1(b) of the Contract, the due dates
of payments should have been adjusted as follows:

Due Dates
Per Contract Installment Adjusted
Schedule A Number Due Dates
Downpayment
July 22, 1977 March 28, 1979
October 22, 1977 June 08, 1979
January 22, 1978 September 28, 1979
Balance
July 22, 1978 No. 1 March 08, 1980
January 22, 1979 No. 2 September 28, 1980
July 22, 1979 No. 3 March 28, 1981
January 22, 1981 No. 4 September 28, 1981
July 22, 1980 No. 5 March 28, 1982
January 22, 1981 No. 6 September 28, 1982
July 22, 1981 No. 7 March 28, 1983
January 22, 1982 No. 8 September 28, 1983
July 22, 1982 No. 9 March 28, 1984
January 22, 1983 No. 10 September 28, 1984
In view of the adjustment of due dates in accordance
with par. 1(b) of the Contract payments made should
correspond to the adjusted dates. Thus, the payment
on the 4th installment which is supposed to have
been made on January 22, 1980, should be credited
on September 28, 1981, and the next payment on
the 5th installment which should have been made on
July 22, 1981 under the contract would have to be
credited on March 28, 1981, the adjusted due date. 7
It is but proper, therefore, to indeed declare 28 March 1982 to
be the due date for the payment of the 5th installment. The
total amount of P731,853.12, representing payments for the
5th installment made by petitioner, should rightly be credited
on 28 March 1982, the adjusted due date. Since no payment
appears to have been made after 1981, petitioner should
thereby be likewise held in default in the payment of the 6th
to the 10th installments. Under the terms of the contract,
hereinbefore recited, petitioner's default has effectively
activated the acceleration clause of the contract, and we see
no error on the part of the appellate court in ordering
petitioner to pay the entire unpaid balance of P4,800,282.91
with interest thereon at the rate of 1% per month to be
computed from 22 March 1982.
WHEREFORE, except on the award of attorney's fees which is
hereby DELETED, the decision of the Court of Appeals is
AFFIRMED. No costs.
SO ORDERED.

G.R. No. L-41862 February 7, 1992

B. R. SEBASTIAN ENTERPRISES, INC., petitioner,
vs.
HON. COURT OF APPEALS, EULOGIO B. REYES, NICANOR
G. SALAYSAY, in his capacity as Provincial Sheriff of

Rizal, and ANTONIO MARINAS, in his capacity as

Deputy Sheriff, respondents.
Benito P. Fabie for petitioner.
Ildefonso de Guzman-Mendiola for private respondents.

dismissed (for failure to file the appellant's brief

within the reglementary period which expired on
April 5, 1974) within the period of 10 days fixed in
the resolution of July 9, 1974, copy of which was
received by said counsel on July 17, 1974; . . . 6

This is a petition for prohibition and mandamus, with prayer

for preliminary injunction, to review the Resolution dated 10
November 1975 of respondent Court of Appeals in C.A.-G.R.
No. 53546-R denying petitioner's motion to reinstate its
appeal, earlier dismissed for failure to file the Appellant's
Brief.

On 28 September 1974, petitioner, this time thru the BAIZAS

LAW OFFICE, filed a motion for reconsideration 7 of the
resolution dismissing its appeal alleging that as a result of the
death of Atty. Crispin Baizas, senior partner in the law firm of
BAIZAS, ALBERTO & ASSOCIATES, the affairs of the said firm
are still being settled between Atty. Jose Baizas (son of Crispin
Baizas) and Atty. Ruby Alberto, the latter having established
her own law office; furthermore, Atty. Rodolfo Espiritu, the
lawyer who handled this case in the trial court and who is
believed to have also attended to the preparation of the
Appellant's Brief but failed to submit it through oversight and
inadvertence, had also left the firm.

The material operative facts of this case, as gathered from the

pleadings of the parties, are not disputed.

In its Resolution of 9 October 1974, respondent Court denied

the motion for reconsideration, stating that:

DAVIDE, JR., J.:

Eulogio B. Reyes, now deceased, filed an action for damages

with the then Court of First Instance (now Regional Trial Court)
of Rizal, Pasay City Branch, against the Director of Public
Works, the Republic of the Philippines and petitioner herein, B.
R. Sebastian Enterprises, Inc. The case was docketed as Civil
Case No. 757-R. 1
On 7 May 1973, the trial court rendered a decision finding
petitioner liable for damages but absolving the other
defendants. 2
Petitioner, thru its counsel, the law firm of Baizas, Alberto and
Associates, timely appealed the adverse decision to the
respondent Court of Appeals, which docketed the case as
C.A.-G.R. No. 53546-R. 3
During the pendency of the appeal, the plaintiff-appellee
therein, Eulogio B. Reyes, died. Upon prior leave of the
respondent Court, he was substituted by his heirs Enrique
N. Reyes, Felicisima R. Natividad, Donna Marie N. Reyes and
Renne Marie N. Ryes who are now the private respondents
in this present petition.
On 19 February 1974, petitioner, thru its then counsel of
record, received notice to file Appellant's Brief within 45 days
from receipt thereof. It had, therefore, until 5 April 1974 within
which to comply.
Counsel for petitioner failed to file the Brief; thus, on 9 July
1974, respondent Court issued a Resolution requiring said
counsel to show cause why the appeal should not be
dismissed for failure to file the Appellant's Brief within the
reglementary period. 4 A copy of this Resolution was received
by counsel for petitioner on 17 July 1974. 5
As the latter failed to comply with the above Resolution,
respondent Court, on 9 September 1974, issued another
Resolution this time dismissing petitioner's appeal:
It appearing that counsel for defendant-appellant
failed to show cause why the appeal should not be

Upon consideration of the motion of counsel for

defendant-appellant, praying, on the grounds therein
stated, that the resolution of September 9, 1974,
dismissing the appeal, be set aside, and that
appellant be granted a reasonable period of time
within which to file its brief: considering that six (6)
months had elapsed since the expiration of the
original period and more than two and one-half (2-)
months since counsel received copy of the resolution
requiring him to show cause why the appeal should
not be dismissed for failure to file brief; Motion
Denied. 8
No action having been taken by petitioner from the above
Resolution within the period to file a petition for review, the
same became final and executory, and the records of the case
were remanded to the court of origin for execution.
The trial court issued a writ of execution on 21 October
1975. 9 Pursuant thereto, respondent Provincial Sheriff and
Deputy Sheriff attached petitioner's Hough Pay Loader with
Hercules Diesel Engine and issued on 5 November 1975 a
Notice of Sheriff's Sale, scheduling for Friday, 14 November
1975 at 10:00 o'clock in the morning, the auction sale
thereof. 10
On 6 November 1975, petitioner filed with respondent Court a
Motion to Reinstate Appeal with Prayer for Issuance of a Writ
of Preliminary Injunction 11 dated 5 November 1975, and
containing the following allegations:
1. That late as it may be, this Honorable Court has
the inherent power to modify and set aside its
processes, in the interest of justice, especially so in
this case when the case was dismissed on account of
the untimely death of Atty. Crispin D. Baizas, counsel
of BRSEI (B.R. Sebastian Enterprises, Inc.).
2. That to dismiss the case for failure to file the
appellant's brief owing to the untimely death of the
late Atty. Crispin D. Baizas would be tantamount to
denying BRSEI its (sic) day in court, and is, therefore,

a clear and unmistakable denial of due process on

the part of BRSEI.
3. That to reinstate BRSEI's appeal would not impair
the rights of the parties, since all that BRSEI is asking
for, is a day in court to be heard on appeal in order to
have the unfair, unjust and unlawful decision, set
aside and reversed.
The respondent Court denied the said motion in its Resolution
of 10 November 1975: 12
. . . it appearing that appellant was represented by
the law firm of Baizas, Alberto & Associates, and
while Atty. Baizas died on January 16, 1974, his law
firm was not dissolved since it received the notice to
file brief on February 19, 1974, and the copy of the
Resolution of July 9, 1974, requiring appellant to
show cause why the appeal should not be dismissed
was received by the law firm on July 17, 1974 and no
cause was shown; . . .
Hence, on 13 November 1975, petitioner filed the original
petition 13 in this case against the Court of Appeals, Eulogio B.
Reyes, Nicanor G. Salaysay, as Provincial Sheriff of Rizal, and
Antonio Marinas, as Deputy Sheriff. The petition likewise
prayed for the issuance of a Temporary Restraining Order.
In the Resolution of 13 November 1975, this Court required
respondents to comment on the petition within ten (10) days
from receipt thereof, and issued a Temporary Restraining
Order. 14
On 12 January 1976, respondents filed a Partial Comment on
the Petition with a Motion to Suspend the Proceedings 15 on
the ground that respondent Eulogio B. Reyes is already dead
and his lawful heirs had already been ordered substituted for
him during the pendency of the appeal before the respondent
Court of Appeals.
In the Resolution of 21 January 1976, this Court ordered
petitioner to amend its petition within then (10) days from
receipt of notice, and suspended the filing of respondents'
Comment until after the amendment is presented and
admitted. 16
In compliance therewith, petitioner filed on 9 February 1976 a
Motion for Leave to Admit Amended Petition to which it
attached the said Amended Petition. 17 The amendment
consists in the substitution of Eulogio B. Reyes with his heirs.
This Court admitted the Amended Petition 18 and required the
respondents to file their Comment within ten (10) days from
notice thereof, which they complied with on 5 April
1976. 19 Petitioner filed its Reply to the Comment on 29 April
1976.20
In the Resolution of 12 May 1976, this Court denied the
petition for lack of merit: 21
L-41862 (B.R. Sebastian Enterprises, Inc. vs. Court of
Appeals, et. al.). Considering the allegations,
issues and arguments adduced in the amended

petition for review on certiorari of the decision of the

Court of Appeals, respondents' comment thereon, as
well as petitioner's reply to said comment, the Court
Resolved to DENY the petition for lack of merit.
However, on 31 May 1976, petitioner filed a motion for its
reconsideration 22 claiming that since it was deprived of the
right to appeal without fault on its part, the petition should be
given due course.
Respondents submitted on 22 July 1976 their Comment
said Motion for Reconsideration.

23

to

On 10 September 1976, this Court resolved to reconsider 24 its

Resolution of 12 May 1976 and required both parties to submit
simultaneously their respective Memoranda within thirty (30)
days from notice thereof.
Petitioner submitted its Memorandum on 5 November
1976 25 while respondents submitted theirs on 22 November
1976. 26 On 29 November 1976, this Court deemed the
present case submitted for decision. 27
The sole issue to be addressed is whether or not the
respondent Court of Appeals gravely abused its discretion in
denying petitioner's motion to reinstate its appeal, previously
dismissed for failure to file the Appellant's Brief.
Petitioner, in its Memorandum, extensively expounds on
respondent Court's authority to reinstate dismissed appeals
and cites as basis thereof the decision of this Court in Heirs of
Clemente Celestino vs. Court of Appeals, et al., 28 Indeed, in
said case, this Court affirmed the resolution of the Court of
Appeals reinstating an appeal after being dismissed for
failure by the appellants therein to file their brief, and after
entry of judgment and remand of the records to the lower
court and cancelled the entry of judgment, requiring the
lower court to return the records to the Court of Appeals and
admit appellant's brief. Said case, however, had a peculiar or
singular factual situation" which prompted the Court of
Appeals to grant the relief and which this Court found
sufficient to justify such action. As this Court, through
Associate Justice Ramon Aquino, said:
We are of the opinion that under the peculiar or
singular factual situation in this case and to forestall
a miscarriage of justice the resolution of the Court of
Appeals reinstating the appeal should be upheld.
That Court dismissed the appeal of the Pagtakhans in
the mistaken belief that they had abandoned it
because they allegedly failed to give to their counsel
the money needed for paying the cost of printing
their brief.
But presumably the Appellate Court realized later
that fraud might have been practised on appellants
Pagtakhans since their oppositions were not included
in the record on appeal. In (sic) sensed that there
was some irregularity in the actuations of their
lawyer and that Court (sic) itself had been misled
into dismissing the appeal.

Counsel for the Pagtakhans could have furnished

them with copies of his motions for extension of time
to file brief so that they would have known that the
Court of Appeals had been apprised of their alleged
failure to defray the cost of printing their brief and
they could have articulated their reaction directly to
the Court. Counsel could have moved in the
Appellate Court that he be allowed to withdraw from
the case or that the Pagtakhans be required to
manifest whether they were still desirous of
prosecuting their appeal or wanted a mimeographed
brief to be filed for them (See People vs. Cawili, L30543, August 31, 1970, 34 SCRA 728). Since
counsel did none of those things, his representation
that the appellants had evinced lack of interest in
pursuing their appeal is difficult to believe.
If the appellate court has not yet lost its jurisdiction,
it may exercise its discretion in reinstating an appeal,
having in mind the circumstances obtaining in each
case and the demands of substantial justice (Alquiza
vs. Alquiza, L-23342, February 10, 1968, 22 SCRA
494, 66 O.G. 276; C. Vda. de Ordoveza vs.
Raymundo, 62 Phil. 275; Chavez vs. Ganzon, 108
Phil. 6).
But even if it has already lost jurisdiction over the
appeal by reason of the remand of the record to the
lower court, it, nevertheless, has the inherent right to
recall the remittitur or the remand of the record to
the lower court if it had rendered a decision or issued
a resolution which was induced by fraud practised
upon it. Such a right is not affected by the statutory
provision that after the record has been remanded,
the appellate court has no further jurisdiction over
the appeal (5 Am Jur. 2nd 433 citingLovett vs. State,
29 Fla. 384, 11 So. 176; 84 ALR 595; State vs.
Ramirez, 34 Idaho 623, 203 Pac. 279).
In the instant case, no fraud is involved; what obtain is simple
negligence on the part of petitioner's counsel, which is neither
excusable nor unavoidable. Petitioner thus failed to
demonstrate sufficient cause to warrant a favorable action on
its plea.
As held in Chavez, et al. vs. Ganzon, et al., 29 and reiterated
in Negros Stevedoring Co., Inc. vs. Court of Appeals, 30We
said:
Granting that the power or discretion to reinstate an
appeal that had been dismissed is included in or
implied from the power or discretion to dismiss an
appeal, still such power or discretion must be
exercised upon a showing of good and sufficient
cause, in like manner as the power or discretion
vested in the appellate court to allow extensions of
time for the filing of briefs. There must be such a
showing which would call for, prompt and justify its
exercise (sic). Otherwise, it cannot and must not be
upheld.
To justify its failure to file the Appellant's Brief, petitioner
relies mainly on the death of Atty. Crispin Baizas and the
supposed confusion it brought to the firm of BAIZAS, ALBERTO
& ASSOCIATES. It says: 31

Petitioner, thru its president Bernardo R. Sebastian,

engaged the services of Atty. Crispin D. Baizas to
handle its defense in Civil Case No. 757-R; however,
it appears that Atty. Baizas entered petitioner's case
as a case to be handled by his law firm operating
under the name and style "Crispin D. Baizas &
Associates." Hence, the Answer to the complaint,
Answer to Cross-Claim, and Answer to Fourth-party
Complaint filed for petitioner in said case, evince that
the law firm "Crispin D. Baizas & Associates"
represents petitioner in the action.
After rendition of the assailed Decision of the trial
court, petitioner's counsel appears to have changed
its firm name to "Baizas, Alberto & Associates." The
appeal was thus pursued for petitioner by the law
firm "Baizas, Alberto & Associates."
On January 16, 1974, Atty. Crispin D. Baizas died as a
result of a brief heart attack. In consequence (sic) of
his death, the law firm "Baizas, Alberto & Associates"
was in a terribly confused state of affairs. In effect,
said law firm was dissolved. Atty. Ruby Alberto
formed her own law office and other associates left
the dissolved law firms (sic) joining other offices or
putting up their own. Atty. Jose Baizas, son of
deceased Crispin D. Baizas, took over the
management of why may have been left of his
father's office, it appearing that some, if not many,
cases of the defunct office were taken over by the
associates who left the firm upon its dissolution.
But, none of the former partners and
associates/assistants of the dissolved law firm filed
the required appellant's brief for herein petitioner in
its appealed case before the respondent Court of
Appeals. No notice was served upon petitioner by
any of the surviving associates of the defunct law
firm that its appellant's brief was due for filing or that
the law office had been dissolved and that the law
office had been dissolved and that none of the
lawyers herein formerly connected desired to handle
the appealed case of petitioner. . . .
The circumstances that the law firm "Baizas, Alberto
& Associates" was dissolved and that none of the
associates took over petitioner's case, and no notice
of such state of affairs was given to petitioner who
could have engaged the services of another lawyer
to prosecute its appeal before respondent Court,
constitutes (sic) an UNAVOIDABLE CASUALTY that
entitles petitioner to the relief prayed for. On the
other hand, the non-dissolution of said law firm
"Baizas, Alberto & Associates" will not defeat
petitioner's claim for relief since, in such event, the
said firm had ABANDONED petitioner's cause, which
act constitutes fraud and/or reckless inattention the
result of which is deprivation of petitioner's day in
court. In the abovementioned Yuseco case, this
Honorable Court had emphatically and forcefully
declared that it will always be disposed to grant relief
to parties aggrieved by perfidy, fraud, reckless
inattention and downright incompetence of lawyers,
which has the consequence of depriving their day
(sic) in court.

We find no merit in petitioner's contentions. Petitioner's

counsel was the law firm of BAIZAS, ALBERTO & ASSOCIATES
and not merely Atty. Crispin Baizas. Hence, the death of the
latter did not extinguish the lawyer-client relationship
between said firm and petitioner.
In Gutierrez & Sons, Inc. vs. Court of Appeals, 32 the appeal
filed by the law firm of BAIZAS, ALBERTO & ASSOCIATES on
behalf of respondent therein was dismissed for failure to
comply with the requisites enumerated in the Rules of Court;
the excuse presented by said counsel was also the death of
Atty. Crispin Baizas. This Court held therein that:
The death of Attorney Baizas was not a valid excuse
on the part of his associates for not attending to
Alvendia's appeal, supposing arguendo that his office
was solely entrusted with the task of representing
Alvendia in the Court of Appeals. Attorney Espiritu
(not Attorney Baizas) was the one actually
collaborating with Viola in handling Alvendia's case.
He did not file a formal appearance in the Court of
Appeals.
Undoubtedly, there was inexcusable negligence on the part of
petitioner's counsel in failing to file the Appellant's Brief. As
revealed by the records, petitioner's counsel, the BAIZAS
ALBERTO & ASSOCIATES law firm, received the notice to file
Brief on 19 February 1974. It failed to do so within the 45 days
granted to it. Said law firm also received a copy of the
respondent Court's Resolution of 9 July 1974 requiring it to
show cause why the appeal should not be dismissed for failure
to file the Brief within the reglementary period. Petitioner
chose not to comply with it, thus compelling the respondent
Court to issue on 9 September 1974 a Resolution dismissing
the appeal, a copy of which the former also received. Then, on
28 September 1974, the BAIZAS LAW OFFICE moved for
reconsideration of the said Resolution which respondent Court
denied in its Resolution of 9 October 1974. Nothing more was
heard from petitioner until after a year when, on 6 November
1975, it filed the instant petition in reaction to the issuance of
a writ of execution by the trial court following receipt of the
records for the respondent Court.

to adopt a system of distributing pleadings and

notices, whereby lawyers working therein receive
promptly notices and pleadings intended for them, so
that they will always be informed of the status of
their cases. Their Court has also often repeated that
the negligence of clerks which adversely affect the
cases handled by lawyers, is binding upon the latter.
Compounding such negligence is the failure of the BAIZAS
LAW OFFICE, which filed on 28 September 1974 the motion for
reconsider the Resolution of 9 September 1974, to take any
further appropriate action after the respondent Court denied
said motion on 9 October 1974. The appearance of said
counsel is presumed to be duly authorized by petitioner. The
latter has neither assailed nor questioned such appearance.
The rule is settled that negligence of counsel binds the
client. 33
Moreover, petitioner itself was guilty of negligence when it
failed to make inquiries from counsel regarding its case. As
pointed out by respondents, the president of petitioner
corporation claims to be the intimate friend of Atty. Crispin
Baizas; hence, the death of the latter must have been known
to the former. 34 This fact should have made petitioner more
vigilant with respect to the case at bar. Petitioner failed to act
with prudence and diligence, thus, its plea that they were not
accorded the right to procedural due process cannot elicit
either approval or sympathy. 35
Based on the foregoing, it is clear that there was failure to
show a good and sufficient cause which would justify the
reinstatement of petitioner's appeal. Respondent Court of
Appeals did not them commit any grave abuse of discretion
when it denied petitioner's motion to reinstate its appeal.
WHEREFORE, the Petition is hereby DISMISSED and the
temporary restraining order issued in this case is lifted.
Costs against petitioner.
IT SO ORDERED.

The "confusion" in the office of the law firm following the

death of Atty. Crispin Baizas is not a valid justification for its
failure to file the Brief. With Baizas' death, the responsibility
of Atty. Alberto and his Associates to the petitioner as counsel
remained until withdrawal by the former of their appearance
in the manner provided by the Rules of Court. This is so
because it was the law firm which handled the case for
petitioner before both the trial and appellate courts. That Atty.
Espiritu, an associate who was designated to handle the case,
later left the office after the death of Atty. Baizas is of no
moment since others in the firm could have replaced him..
Upon receipt of the notice to file Brief, the law firm should
have re-assigned the case to another associate or, it could
have withdrawn as counsel in the manner provided by the
Rules of Court so that the petitioner could contract the
services of a new lawyer.
In the Negros Stevedoring case, supra., this Court held:
The negligence committed in the case at bar cannot
be considered excusable, nor (sic) is it unavoidable.
Time and again the Court has admonished law firms

A. C. No. 7421

October 10, 2007

ELISA V. VENTEREZ, GENARO DE VERA, INOCENCIA V.

RAMIREZ, PACITA V. MILLS, ANTONINA V. PALMA and
RAMON DE VERA, Complainants,
vs.
ATTY. RODRIGO R. COSME, Respondent.
RESOLUTION
CHICO-NAZARIO, J.:
Before Us is a Complaint filed by complainants Eliza V.
Venterez, Genaro de Vera, Inocencia V. Ramirez, Pacita V. Mills,
Antonina V. Palma and Ramon de Vera against respondent
Atty. Rodrigo R. Cosme, charging the latter with
Abandonment, Gross Negligence and Dereliction of Duty.

Complainants contracted the legal services of respondent in

Civil Case No. 981 entitled, "Sps. Daniel and Lolita Oviedo, et
al. v. Eliza de Vera, et al.," for Declaration of Ownership with
Damages filed before the Municipal Trial Court (MTC) of
Calasiao, Pangasinan. Respondent represented the
complainants, who were defendants in said case, until a
Decision thereon was rendered by the MTC on 25 February
2004. The MTC ruled against the complainants. Respondent
received a copy of the said Decision on 3 March 2004.

Salvador Ramirez came to see the respondent only on 3 May

2005, when the respondent asked him to sign a Notice of
Retirement of Counsel signed by Salvador Ramirez which
respondent immediately filed in court."

Complainants alleged that they directed the respondent to

either file a Motion for Reconsideration or a Notice of Appeal,
but respondent failed or refused to do so. The 15-day period
within which to file an appeal or a motion for reconsideration
of the MTC Decision expired on 18 March 2004. Complainant
Elisa V. Venterez was constrained to contract another lawyer
to prepare the Motion for Reconsideration which was filed on
19 March 2004. It must be stressed that the said motion was
signed by complainant Elisa V. Venterez herself as the said
lawyer did not enter his appearance.

On 11 April 2006, Investigating Commissioner Dennis A. B.

Funa submitted his Report and Recommendation,9finding
respondent liable for gross negligence and recommending the
imposition upon him of the penalty of three months
suspension, to wit:

On 23 March 2004, the said Motion for Reconsideration was

denied1 by the MTC. Respondent was not furnished a copy of
the denial of the motion per a Certification2 issued by Clerk of
Court II Zenaida C. de Vera. On 31 March 2004, a Motion for
Issuance of Writ of Execution3 was filed by the plaintiffs in Civil
Case No. 981 but respondent never bothered to file an
opposition to or any comment on the said motion despite
receipt thereof. The motion was eventually granted4 by the
MTC on 23 April 2004. On 28 April 2004, a Writ of
Execution5 was issued and on 26 April 2004, an Entry of
Judgment6 was made in the said case.
Two months after respondent received a copy of the Decision,
the respondent filed his Notice of Retirement of Counsel with
the MTC on 3 May 2004.
Feeling aggrieved by respondents actuations, complainants
filed the instant administrative complaint against him. 7
8

In his Answer, respondent denied the claim of complainants

that soon after the Decision was rendered by the MTC, they
(complainants) directed him to file an appeal or a motion for
reconsideration thereof. For his defense, respondent averred
that Salvador Ramirez (the son of one of the complainants,
Inocencia V. Ramirez), informed him that "he [was]
withdrawing the case from the respondent because he already
engaged another lawyer to take over the case, so respondent
gave the records of the case to him." Respondent explained
that "after Salvador Ramirez withdrew the case from the
respondent, and engaged another lawyer, the respondent
turned over the records of the case to him and the respondent
ceased as the counsel of the complainants." Respondent
further alleged that the said Motion for Reconsideration was
already prepared by another lawyer. He denied being
furnished a copy of the Motion for Reconsideration allegedly
prepared and filed by another lawyer engaged by complainant
Elisa V. Venterez and that he was served with a copy of the
denial of the said Motion by the MTC. Respondent also
clarified that the "last day of the 15-day period for the
perfection of the appeal is 19 March 2004 since a copy of the
decision was served on the respondent on 4 March 2004."
Finally, respondent argued that "when the respondent was
served a copy of the Motion for Writ of Execution, he
immediately notified Salvador Ramirez about said Motion but

Pursuant to the complaint, a hearing was conducted by the

Commission on Bar Discipline of the Integrated Bar of the
Philippines (IBP) at the IBP Building, Ortigas Center, Pasig City,
on 15 February 2006.

PREMISES CONSIDERED, it is submitted that Respondent is

GUILTY of Gross Negligence and should be given the penalty
of THREE (3) MONTHS SUSPENSION.
Thereafter, the IBP Board of Governors passed
Resolution10 No. XVII-2006-457 dated 8 September 2006,
approving and adopting the recommendation of the
Investigating Commissioner, thus:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED
and APPROVED, the Report and Recommendation of the
Investigating Commissioner of the above-entitled case, herein
made part of this Resolution as Annex "A"; and, finding the
recommendation fully supported by the evidence on record
and the applicable laws and rules, and considering that
Respondent is guilty of gross negligence, Atty. Rodrigo Cosme
is hereby SUSPENDED from the practice of law for three (3)
months.11
We sustain the findings and recommendation of the IBP Board
of Governors.
The core issue is whether the respondent committed culpable
negligence in handling complainants case, as would warrant
disciplinary action.
No lawyer is obliged to advocate for every person who may
wish to become his client, but once he agrees to take up the
cause of a client, the lawyer owes fidelity to such cause and
must be mindful of the trust and confidence reposed in
him.12 Among the fundamental rules of ethics is the principle
that an attorney who undertakes an action impliedly stipulates
to carry it to its termination, that is, until the case becomes
final and executory. A lawyer is not at liberty to abandon his
client and withdraw his services without reasonable cause and
only upon notice appropriate in the circumstances.13 Any
dereliction of duty by a counsel affects the client.14 This
means that his client is entitled to the benefit of any and
every remedy and defense that is authorized by the law and
he may expect his lawyer to assert every such remedy or
defense.15
The Decision in Civil Case No. 981 was rendered by the MTC of
Calasaio, Pangasinan, on 25 February 2004. Respondent
admitted16 that he was served a copy of the said Decision on 4
March 2004. After having received a copy of the MTC Decision,
respondent did not bother to file a Motion for Reconsideration
or a notice of appeal with the proper courts. Thus,

complainants were compelled to engage the services of a new

counsel to file a Motion for Reconsideration with the MTC who
did not, however, enter his appearance as new counsel. It
bears stressing that during this time, respondent had not yet
filed any notice of withdrawal as counsel for the complainants
in Civil Case No. 981. Respondent only formally withdrew as
counsel for complainant in Civil Case No. 981 when he filed
with the MTC his Notice17 of Retirement as Counsel on 5 May
2004, on the ground that "he was also retired as Counsel for
the [complainants] two days after he received copy of the
decision rendered in this case when SALVADOR RAMIREZ, a
representative of the [complainants], withdrew all the records
of the case from [respondent] to be given to his new counsel."
We cannot accept respondents defense that he had already
withdrawn from the case two days after his receipt of the MTC
Decision and that he had allegedly communicated this
withdrawal to Salvador Ramirez, son of one of the herein
complainants, Inocencia Ramirez. It is an apparent attempt on
the part of respondent to wash his hands of any liability for
failing to pursue any of the available remedies to
complainants from the adverse MTC Decision.
The rule in this jurisdiction is that a client has the absolute
right to terminate the attorney-client relation at any time with
or without cause.18 The right of an attorney to withdraw or
terminate the relation other than for sufficient cause is,
however, considerably restricted.19 Among the fundamental
rules of ethics is the principle that an attorney who
undertakes to conduct an action impliedly stipulates to carry it
to its conclusion.20 He is not at liberty to abandon it without
reasonable cause.21 A lawyer's right to withdraw from a case
before its final adjudication arises only from the client's
written consent or from a good cause.22
Section 26, Rule 138 of the Revised Rules of Court provides:
Sec. 26. Change of attorneys -- An attorney may retire at any
time from any action or special proceeding, by the written
consent of his client filed in court. He may also retire at any
time from an action or special proceeding, without the
consent of his client, should the court, on notice to the client
and attorney, and on hearing, determine that he ought to be
allowed to retire. In case of substitution, the name of the
attorney newly employed shall be entered on the docket of
the court in place of the former one, and written notice of the
change shall be given to the adverse party.
A lawyer may retire at any time from any action or special
proceeding with the written consent of his client filed in court
and with a copy thereof served upon the adverse party.
Should the client refuse to give his consent, the lawyer must
file an application with the court. The court, on notice to the
client and adverse party, shall determine whether the lawyer
ought to be allowed to retire. The application for withdrawal
must be based on a good cause.23
What constitute good cause for the withdrawal of services by
the counsel are identified under Rule 22.01, Canon 22 of the
Code of Professional Responsibility, which provides:
CANON 22 -- A LAWYER SHALL WITHDRAW HIS SERVICES ONLY
FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE
CIRCUMSTANCES.

Rule 22.01-- A lawyer may WITHDRAW his services in any of

the following cases:
a) When the client pursues an illegal or immoral
course of conduct in connection with the matter he is
handling;
b) When the client insists that the lawyer pursue
conduct violative of these canons and rules;
c) When his inability to work with co-counsel will not
promote the best interest of the client;
d) When the mental or physical condition of the
lawyer renders it difficult for him to carry out the
employment effectively;
e) When the client deliberately fails to pay the fees
for the services or fails to comply with the retainer
agreement;
f) When the lawyer is elected or appointed to public
office; and
g) Other similar cases.
The instant case does not fall under any of the grounds
aforementioned. Neither can the circumstances of this case
be considered analogous to the grounds thus explicitly
enumerated. Contrary to respondents contention, his
professional relations as a lawyer with his clients are not
terminated by the simple turnover of the records of the case
to his clients. Respondents defense completely crumbles in
face of the fact that Salvador Ramirez is not even a party in
Civil Case No. 981 and, hence, had no authority to withdraw
the records of the said case from respondent or to terminate
the latters services.
Assuming, nevertheless, that respondent was justified in
withdrawing his services, he, however, cannot just do so and
leave complainants in the cold, unprotected. The lawyer has
no right to presume that his petition for withdrawal will be
granted by the court.24 Until his withdrawal shall have been
approved, the lawyer remains counsel of record who is
expected by his clients, as well as by the court, to do what the
interests of his clients require.25 He must still appear before
the court to protect the interest of his clients by availing
himself of the proper remedy, for the attorney-client relations
are not terminated formally until there is a withdrawal of
record.
Without a proper revocation of his authority and withdrawal as
counsel, respondent remains counsel of record for the
complainants in Civil Case No. 981; and whether he has a
valid cause to withdraw from the case, he cannot immediately
do so and leave his clients without representation. An attorney
may only retire from the case either by a written consent of
his client or by permission of the court after due notice and
hearing, in which event, the attorney should see to it that the
name of the new attorney is recorded in the
case.26 Respondent did not comply with these obligations.
Therefore, he remains the counsel of record for the
complainants in Civil Case No. 981 with the duty to protect
complainants interest. Had he made the necessary inquiries

as to the status of the case, he would have known that he was

still the counsel of record as no entry of appearance was ever
made by another counsel. It would have been easily
discernible on his part that there was no change in his status
as complainants lawyer. As of that time, their client-lawyer
relationship was still subsisting. Therefore, he would have
known that the Motion for Reconsideration was denied; and a
writ of execution had been issued under the circumstances.
All told, we rule and so hold that on account of respondents
failure to protect the interest of complainants, respondent
indeed violated Rule 18.03, Canon 18 of the Code of
Professional Responsibility, which states that "a lawyer shall
not neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable."
Respondent is reminded that the practice of law is a special
privilege bestowed only upon those who are competent
intellectually, academically and morally. This Court has been
exacting in its expectations for the members of the Bar to
always uphold the integrity and dignity of the legal profession
and refrain from any act or omission which might lessen the
trust and confidence of the public.1wphi1
The determination of the appropriate penalty to be imposed
on an errant lawyer involves the exercise of sound judicial
discretion based on the facts of the case.27 In cases of similar
nature, the penalty imposed by the Court consisted of
reprimand,28 fine of five hundred pesos with
warning,29 suspension of three months,30 six months31and
even disbarment32 in an aggravated case.
The facts of the case show that respondent failed to live up to
his duties as a lawyer pursuant to the Code of Professional
Responsibility. We conclude that a 3-month suspension from
the practice of law is a just penalty under the circumstances.
WHEREFORE, the resolution of the IBP Board of Governors
approving and adopting the report and recommendation of
the Investigating Commissioner is hereby AFFIRMED.
Accordingly, ATTY. RODRIGO R. COSME is hereby SUSPENDED
from the practice of law for a period of THREE (3) MONTHS,
with a stern warning that a repetition of the same or similar
wrongdoing will be dealt with more severely.
Let a copy of this decision be attached to respondents
personal record with the Office of the Bar Confidant and
copies be furnished to all chapters of the Integrated Bar of the
Philippines and to all courts of the land.
SO ORDERED

A.C. No. 3773 September 24, 1997

ANGELITA C. ORCINO, complainant,
vs.
ATTY. JOSUE GASPAR, respondent.

PUNO, J.:

On June 14, 1992, complainant Angelita C. Orcino filed with

this Court a letter-complaint dated December 10, 1991
against respondent Atty. Josue Gaspar, her former counsel.
Complainant prayed that this Court impose disciplinary
sanctions on respondent for abandoning his duties and for
failing to return the legal fees she fully paid for his services.
The complaint arose from the following facts: Complainant
engaged the services of respondent to prosecute a criminal
case she intended to file against several suspects in the
slaying of her husband. In consideration thereof, complainant
bound herself to pay respondent legal fees of P20,000.00
P10,000.00 to be paid upon signing of the contract and the
balance to be paid on or before the conclusion of the case.
Complainant was also to pay P500.00 per appearance of
respondent before the court and fiscal. This agreement was
embodied in a contract executed on February 22, 1991. 1
In accordance with the contract, complainant paid respondent
the sum of P5,000.00 on February 25, 1991, 2another
P5,000.00 on March 31, 1991, 3 and P10,000.00 on May 21,
1991, 4 for a total of P20,000.00.
Forthwith, respondent entered into his duties. He interviewed
witnesses and gathered evidence to build a case against the
suspects. He drew up the necessary sworn statements and
dutifully attended the preliminary investigation. The case was
thereafter filed with the Regional Trial Court, Branch 37, Baloc,
Sto. Domingo, Nueva Ecija. 5
As private prosecutor, respondent religiously attended the bail
hearings for the accused although these hearings were
postponed on motion of the accused's counsel. Respondent
however failed to attend the hearing scheduled in August
1991. It was at this nearing that the court, over complainant's
objections, granted bail to all the accused. After the hearing,
complainant immediately went to respondent's residence and
confronted him with his absence. 6Respondent explained that
he did not receive formal notice of the hearing. 7 Complainant
became belligerent and started accusing him of jeopardizing
the case by his absence. Respondent said that her suspicions
were based on rumors and intrigues fed to her by her
relatives. 8 Complainant, however, continued accusing him
belligerently. She asked for the records of the case saying that
she could refer them to another lawyer. Stung by her words,
respondent gave her the records. 9
Complainant never returned the records nor did she see
respondent. On September 18, 1991, respondent filed before
the trial court a "Motion to Withdraw as Counsel." 10 The
motion did not bear the consent of complainant.
On October 23, 1991, the court issued an order directing
respondent to secure complainant's consent to the motion
"and his appearance as private prosecutor shall continue until
he has secured this consent." 11
Complainant refused to sign her conformity to respondent's
withdrawal. 12 Meanwhile, the hearings in the criminal case
continued. Respondent did not appear at the hearings nor did
he contact complainant. Complainant was thus compelled to

engage the services of another lawyer. Hence, the lettercomplaint.

We referred the letter-complaint to the Integrated Bar of the
Philippines, Commission on Bar Discipline, for investigation,
report and recommendation.
The rule in this jurisdiction is that a client has the absolute
right to terminate the attorney-client relation at any time with
or without cause. 13 The right of an attorney to withdraw or
terminate the relation other than for sufficient cause is,
however, considerably restricted. 14 Among the fundamental
rules of ethics is the principle that an attorney who
undertakes to conduct an action impliedly stipulates to carry it
to its conclusion. 15 He is not at liberty to abandon it without
reasonable cause. 16 A lawyer's right to withdraw from a case
before its final adjudication arises only from the client's
written consent or from a good cause. 17
Section 26 of Rule 138 of the Revised Rules of Court provides:
Sec. 26. Change of attorneys An attorney may
retire at any time from any action or special
proceeding, by the written consent of his client filed
in court. He may also retire at any time from an
action or special proceeding, without the consent of
his client, should the court, on notice to the client
and attorney, and on hearing, determine that he
ought to be allowed to retire. In case of substitution,
the name of the attorney newly employed shall be
entered on the docket of the court in place of the
former one, and written notice of the change shall be
given to the adverse party.
xxx xxx xxx
A lawyer may retire at any time from any action special
proceeding with the written consent of his client filed in court
and copy thereof served upon the adverse party. Should the
client refuse to give his consent, the lawyer must file an
application with the court. The court, on notice to the client
and adverse party, shall determine whether he ought to be
allowed to retire. The application for withdrawal must be
based on a good cause. 18
In the instant case, complainant did not give her written
consent to respondent's withdrawal. The court thus ordered
respondent to secure this consent. Respondent allegedly
informed the court that complainant had become hostile and
refused to sign his motion. 19 He, however, did not file an
application with the court for it to determine whether he
should be allowed to withdraw.
Granting that respondent's motion without complainant's
consent was an application for withdrawal with the court, we
find that this reason is insufficient to justify his withdrawal
from the case. Respondent's withdrawal was made on the
ground that "there no longer exist[ed] the . . . confidence"
between them and that there had been "serious differences
between them relating to the manner of private
prosecution." 20
Rule 22.01 of Canon 22 of the Code of Professional
Responsibility provides:

CANON 22 A LAWYER SHALL WITHDRAW HIS

SERVICES ONLY FOR GOOD CAUSE AND UPON
NOTICE APPROPRIATE IN THE CIRCUMSTANCES.
Rule 22.01 A lawyer may withdraw his
services in any of the following cases:
a) When the client pursues an illegal or
immoral course of conduct in connection
with the matter he is handling;
b) When the client insists that the lawyer
pursue conduct violative of these canons
and rules;
c) When his inability to work with co-counsel
will not promote the best interest of the
client;
d) When the mental or physical condition of
the lawyer renders it difficult for him to
carry out the employment effectively;
e) When the client deliberately fails to pay
the fees for the services or fails to comply
with the retainer agreement;
f) When the lawyer is elected or appointed
to public office; and
g) Other similar cases.
A lawyer may withdraw his services from his client only in the
following instances: (a) when a client insists upon an unjust or
immoral conduct of his case; (b) when the client insists that
the lawyer pursue conduct violative of the Code of
Professional Responsibility; (c) when the client has two or
more retained lawyers and the lawyers could not get along to
the detriment of the case; (d) when the mental or physical
condition of the lawyer makes him incapable of handling the
case effectively; (e) when the client deliberately fails to pay
the attorney's fees agreed upon; (f) when the lawyer is
elected or appointed to public office; (g) other similar cases.
The instant case does not fall under any of the grounds
mentioned. Neither can this be considered analogous to the
grounds enumerated. As found by the Commission on Bar
Discipline, this case arose from a simple misunderstanding
between complainant and respondent. Complainant was upset
by respondent's absence at the hearing where bail was
granted to the suspected killers of her husband. She
vehemently opposed the grant of bail. It was thus a
spontaneous and natural reaction for her to confront
respondent with his absence. Her belligerence arose from her
overzealousness, nothing more. Complainant's words and
actions may have hurt respondent's feelings considering the
work he had put into the case. But her words were uttered in a
burst of passion. And even at that moment, complainant did
not expressly terminate respondent's services. She made this
clear when she refused to sign his "Motion to Withdraw as
Counsel."

Assuming, nevertheless, that respondent was justified in

terminating his services, he, however, cannot just do so and
leave complainant in the cold unprotected. The lawyer has no
right to presume that his petition for withdrawal will be
granted by the court. 21 Until his withdrawal shall have been
approved, the lawyer remains counsel of record who is
expected by his client as well as by the court to do what the
interests of his client require. 22 He must still appear on the
date of hearing 23 for the attorney-client relation does not
terminate formally until there is a withdrawal of record. 24
Respondent expressly bound himself under the contract to
bring the criminal case to its termination. He was in fact paid
in full for his services. Respondent failed to comply with his
undertaking, hence, it is but fair that he return to complainant
half of the amount paid him. The peculiar circumstances of
the case have rendered it impossible for respondent and
complainant to continue their relation under the contract.

IN VIEW WHEREOF, respondent is admonished to exercise

more prudence and judiciousness in dealing with his clients.
He is also ordered to return to complainant within fifteen (15)
days from notice the amount of ten thousand pesos
(P10,000.00) representing a portion of his legal fees received
from the latter with a warning that failure on his part to do so
will result in the imposition of stiffer disciplinary action.
SO ORDERED.
Regalado and Torres, Jr., JJ., concur.
Mendoza, J., is on leave.