1. G.R. No. 124074 January 27, 1997
(hereinafter
RESEARCH and SERVICES REALTY, INC., petitioner,
vs.
COURT OF APPEALS and MANUEL S. FONACIER, JR., respondents.
DAVIDE, JR., J.:
This petition for review on certiorari under Rule 45 of the Rules of Court questions the
propriety of the award for, and the reasonableness of the amount of, attorney's fees
granted in favor of the private respondent by the Regional Trial Court (RTC) of Makati
City, Branch 64,1 in Civil Case No. 612,2 which the Court of Appeals affirmed in its
decision3 of 31 March 1995 in CA-G.R. CV No. 44839.
The undisputed facts are as follows:
On 3 November 1969, the petitioner entered into a Joint Venture Agreement with Jose,
Fidel, and Antonia Carreon. Under the said agreement, the petitioner undertook to
develop, subdivide, administer, and promote the sale of the parcels of land owned by
the Carreons. The proceeds of the sale of the lots were to be paid to the Philippine
National Bank (PNB) for the landowner's mortgage obligation, and the net profits to be
shared by the contracting parties on a 50-50 basis.
On 4 April 1983, the Carreons and a certain Patricio C. Sarile instituted before the RTC
of Makati City an action against the petitioner for rescission of the Joint Venture
Agreement. They prayed therein that pending the hearing of the case, a writ of
preliminary injunction be issued to enjoin the petitioner from selling the lots subject of
the agreement and that after hearing, the writ be made permanent; the agreement be
rescinded; and the petitioner be ordered to pay the PNB the stipulated 15% per
annum of the outstanding obligation and to pay the plaintiffs attorney's fees, exemplary
damages, expenses of litigation, and costs of suit. This case was docketed as Civil
Case No. 612 at Branch 64 of the said court.
In its answer, which was prepared and signed by Atty. Apolonio G. Reyes, the
petitioner sought the denial of the writ of preliminary injunction, the dismissal of the
complaint, and payment in its favor of (a) P10 million by way of actual damages; (b) P5
million by way of return to the petitioner of the amount advanced to the Carreons,
payments to the PNB, and cost of the work on the subdivision; (c) P100,000.00 by way
of exemplary damages; (d) any and all damages up to the amount of P4,638,420.00
which the petitioner may suffer under the terms of its Performance Bond in favor of the
National Housing Authority; (e) P50,000.00 as attorney's fees; and (f) costs of suit.
On 9 April 1985, the petitioner engaged the services of private respondent Atty. Manuel
S. Fonacier, Jr.,4 who then entered his appearance in Civil Case No. 612.
While the said case was pending, or on 24 July 1992, the petitioner, without the
knowledge of the private respondent, entered into a Memorandum of Agreement
(MOA)5 with another land developer, Filstream International, Inc.
Filstream). Under this MOA, the former assigned its rights and obligations under the
Joint Venture Agreement in favor of the latter for a consideration of P28 million,
payable within twenty-four months.
On 31 March 1993, the petitioner terminated the legal services of the private
respondent. At the time the petitioner had already received P7 million from Filstream.
Upon knowing the existence of the MOA, the private respondent filed in Civil Case No.
612 an Urgent Motion to Direct Payment of Attorney's Fees and/or Register Attorney's
Charging Lien praying, among other things, that the petitioner be ordered to pay him
the sum of P700,000.00 as his contingent fee in the case.6
After hearing the motion, the trial court issued an order dated 11 October 1993
directing the petitioner to pay the private respondent the sum of P600,000.00 as
attorney's fees on the basis of quantum meruit.
The trial court justified the award in this manner:
Insofar as material to the resolution of this Motion the records of this case
show that movant Atty. Fonacier became the counsel of defendant Research
in May 1985 while this case has been in progress. (Records, p. 770). By this
time also, the defendant Research has been enjoined by the Court from
executing Contracts To Sell involving Saranay Homes Subdivision. . . . (Order
dated December 3, 1984, Records pp. 625-626). However, the said counsel
for defendant Research prepared for the latter various pleadings and
represented it in Court (See Records after May 1985). Until his services were
terminated the lawyer client relationship between Atty. Fonacier and Research
was governed by a "contract" embodied in a letter addressed to Atty. Fonacier
on April 19, 1985 [sic], the pertinent portion of which is reproduced below, as
follows. . . .
xxx xxx xxx
Soon after said letter, cases were referred to him including this case. In
accordance with their agreement, there were instances that Research gave
Atty. Fonacier ten (10%) percent of the amount received as the latter's
attorney's fees pursuant to their agreement.
The instant case in which defendant is praying to be awarded attorney's fees,
is an action for rescission of the Joint Venture Agreement between plaintiffs,
Patricio Sarile, et al., as owners of a parcel of land and defendant Research &
Service Realty, Inc., as developer of the land. At the time Atty. Fonacier
entered his appearance as counsel for defendant Research, the Court has
issued a preliminary injunction against Research. Thus all developmental and
commercial activities of defendant had to stop. In this regard, Atty. Fonacier
did spade work towards persuading the plaintiffs to agree to the relaxation of
the effects of the injunction to pave the way to a negotiation with a third-party,
the Filstream. Atty. Fonacier's efforts were complemented by the efforts of his
counterpart in the plaintiff's side. The third-party Filstream Inc., became the
assignee of defendant Research. In this connection, a memorandum of
agreement was entered into between them. By the terms of agreement,
defendant Research will be receiving from the third-party Filstream
International, Inc. (Filstream) the following amount. . . .
xxx xxx xxx
The termination of the legal services of Atty. Fonacier was made definite on
March 31, 1993 at which time the Memorandum of Agreement which
Research entered into with Filstream, Inc., has already been effective. By this
time also, defendant Research has already received the first two stipulated
consideration of the agreement in the total sum of Six Million (P6,000,000.00).
The necessary and legal consequence of said "Memorandum of Agreement" is
the termination of the case insofar as plaintiff Patricio Sarile, et al. and
defendant Research is concerned. The conclusion of the Memorandum of
Agreement insofar as the cause of Research is concerned, is a legal victory
for defendant Research. What could have been a loss in investment has been
turned to a legal victory. Atty. Fonacier's effort contributed to defendant's
victory, albeit outside the Court which would not have been possible without
the legal maneuvering of a lawyer.
The dismissal of the case before this Court will come in a matter of time
considering that plaintiffs, with the assumption by the third party, Filstream
Inc., of what were supposed to be the obligations to them of defendant
Research pursuant to their Joint Venture Agreement, is no longer interested in
pursuing the rescission.
It is a matter of record that Atty. Fonacier is the last of the three lawyers who
handled this case. Moreover it is Atty. Fonacier who contributed to the forging
of the memorandum of agreement as testified to by Atty. Rogel Atienza one of
the two retained counsels of plaintiffs.
Considering the importance which is attached to this case, certainly it would
not be fair for Atty. Fonacier if his attorney's fees in this case would be
equated only to the measly monthly allowance of (P800.00) Pesos and office
space and other office facilities provided by defendant Research. Ten (10%)
per cent of the amount which Research had received from Filstream at the
time of the termination of a lawyer-client relationship between Atty. Fonacier
and Research or P600,000.00 will be a just and equitable compensation for
Atty. Fonacier's legal services, by way of quantum meruit (See Cabildo v.
Provincial Treasurer, Ilocos Norte, et al., 54 SCRA 26).7
In its Order8 of 12 January 1994, the trial court denied the petitioner's motion for
reconsideration of the above order.
The petitioner appealed to the Court of Appeals. In its Appellant's
Brief, 9 the petitioner alleged that the private respondent was not entitled to attorney's
fees under the retainer contract. Moreover, the private respondent did not exert any
effort to amicably settle the case, nor was he even present during the negotiations for
the settlement of the same. There was, therefore, no legal and factual justification for
the private respondent's "fantastic and unreasonable claim for attorney's fees of
P600,000.00.
On the other hand, the private respondent asserted that he was assured by the
petitioner that non-collection cases were included in the contingent fee arrangement
specified in the retainer contract wherein there was to be contingent compensation for
any award arising from any lawsuit handled by him. According to him, Civil Case No.
612 was not the only "non-collection" case he handled for the petitioner. There was a
"right of way" dispute where the petitioner was awarded P50,000.00, and the latter paid
him P5,000.00, or 10% of the award as attorney's fees. He thus stressed that since
under the memorandum of agreement the petitioner was to receive P28 million, he
should be entitled to 10% thereof or P2.8 million as attorney's fees.
In its decision 10 of 31 March 1995, the Court of Appeals affirmed the challenged order
of the trial court. It ratiocinated as follows:
Movant-appellee, on the other hand, correctly argues that it was the clear
intention of appellant and counsel to compensate the latter for any legal
services rendered by him to the former. Stated otherwise, it was never the
intention of the parties in the instant appeal that counsel's services shall be
free or to be rendered ex gratia.
xxx xxx xxx
It must in addition be underscored that the retainer contract of April 9, 1985 is
the law that governs the relationship between appellant and appellee. In fact,
the following provisions squarely and categorically supports the award of
P600,000.00 to counsel, to wit:
Minimal allowance of P800 per month plus contingent
fees and collection cases (case to case basis) aside from the
attorney's fee recovered from any law suit.
(Paragraph 3, Retainer Contract)
In an American jurisprudence on this point cited in local annotation on the
Canon of Professional Ethics, it was held that "if a lawyer renders valuable
 services to one who receives the benefits thereof, a promise to pay a
reasonable value is presumed, unless such services were intended to be
gratuitous" (Young vs. Buere, 78 Cal. Am. 127). In effect, to compensate a
lawyer, we are faced with the pivotal question: "was the legal services
intended to be free or not?" If it is not free, then, appellant must simply pay.
The 10% contingent fee of the amount collected and/or to be collected in Civil
Case No. 612 of the lower court, is, to Our mind fair and reasonable. As ruled
by the Supreme Court in the case of Cosmopolitan Insurance Co. vs. Angel
Reyes (G.R. L-20199, Nov. 23, 1965) 15% was even deemed reasonable. 11
12
The petitioner filed a motion for reconsideration on the ground, among other things,
that the decision is contrary to the evidence, as the trial court granted the claim for
attorney's fees based on quantum meruit, yet, the Court of Appeals granted the same
on a contingent basis which it based on an erroneous quotation and comprehension of
the following provision of the retainer contract:
Minimal allowance of P800.00 per month plus contingent fees on collection
cases (case to case basis) aside from the attorney's fees recovered from any
law suit. (emphasis ours) 13
In its decision, the Court of Appeals substituted the word "on" after "contingent fees"
with the word "and". Under the aforequoted paragraph, the private respondent was
entitled to attorney's fees on contingent basis in collection cases only. In non-collection
cases, he was entitled only to the attorney's fees that might be recovered in the
lawsuit. 14 Since Civil Case No. 612 is not a collection case but an action for rescission
of a contract, then the aforequoted paragraph is not applicable as a basis for awarding
attorney's fees to the private respondent. 15
Finding nothing new in the motion for reconsideration, the Court of Appeals denied it in
the resolution 16 of 15 February 1996.
The petitioner then came to us via this petition for review wherein it contends that
I The third assigned error is but a logical consequence of the second, and the petitioner
RESPONDENT COURT OF APPEALS HAD DECIDED THE CASE NOT IN
ACCORD WITH LAW AND THE UNDISPUTED FACTS OF THE CASE.
II
RESPONDENT COURT OF APPEALS COMMITTED GRAVE ABUSE OF
DISCRETION IN AWARDING ON CONTINGENT BASIS RESPONDENT-
APPELLEE'S ATTORNEY'S FEES ON THE BASIS OF A MEMORANDUM OF
AGREEMENT IN WHICH HE HAD NO PARTICIPATION IN THE
NEGOTIATION AND PREPARATION THEREOF.
III
RESPONDENT COURT OF APPEALS GRAVELY ABUSED ITS
DISCRETION IN AWARDING EXCESSIVE AND UNREASONABLE
ATTORNEY'S FEES.
IV
THE TRIAL COURT AND THE RESPONDENT COURT OF APPEALS HAVE
NO JURISDICTION TO SATISFY ATTORNEY'S CHARGING LIEN ON A
SUM OF MONEY THAT THE COURT HAD NO AUTHORITY TO DISPOSE
OF AND OVER WHICH THE TRIAL COURT HAD MADE NO FINAL
ADJUDICATION.
The petitioner's more important argument in support of the first error is the Court of
Appeals' misquotation of the provision in the retainer contract regarding attorney's fees
on contingent basis, which the petitioner had stressed in its motion for reconsideration.
The petitioner maintains that under the contract, attorney's fees on contingent basis
could only be awarded in collection cases, and Civil Case No. 612 is not a collection
case. Hence, the Court of Appeals erred in affirming the award on that basis, while the
trial court was correct in applying the principle of quantum meruit.
In its second assigned error, the petitioner asserts that the private respondent admitted
in his Urgent Motion to Direct Payment of Attorney's Fees and/or Register Attorney's
Charging Lien that he had not participated in the negotiations and preparation of the
memorandum of agreement, thus:
Despite the dishonest concealment, by the light of Providence coupled with a
streak of good luck, counsel discovered in the first week of March 1993 that
the parties had respectively entered into a meaningful agreement with a third-
party as early as July 27, 1992, which in the case of client, case in the form of
a "Memorandum of Agreement" (MOA). . . . 17
maintains that since the private respondent "did not do anything spectacular or out of
the ordinary" in Civil Case No. 612, "except to ask for the suspension or postponement
of the proceedings thereof from 1985 to 1993," the P600,000.00 attorney's fees,
whether on contingent basis or quantum meruit, is excessive and unreasonable.
In the fourth imputed error, the petitioner argues that the memorandum of agreement
was never submitted to the trial court, and the trial court never made any disposition or
adjudication over the proceeds of the said agreement. What would eventually happen
then is the dismissal of Civil Case No. 612, as the trial court itself had intimated in its
challenged order. Necessarily then, there would be no money adjudication in favor of
the petitioner as the defendant therein. Since such lien is collectible only from an award
of money that a court would adjudicate in a judgment rendered in favor of the attorney's
client pursuant to Section 37, Rule 138 of the Rules of Court, it would follow that no
attorney's charging lien could be validly entered.
We uphold the petitioner, but not necessarily on the strength of its arguments.
The parties are in agreement that the lawyer-client relationship between the petitioner
and the private respondent, Atty. Manuel S. Fonacier, Jr., was governed by a retainer
contract dated 9 April 1985. The petitioner's undertakings thereunder are outlined as
follows:
I. CORPORAT[ION]:
I. Corporation will provide the following:
a. Office space — air conditioned
b. Furnishings, tables, executive chairs, visitor's chair & steel filing cabinet
c. Telephone facilities and partial secretarial services.
2. Legal service referrals by the corporation to its clients for additional income
of the lawyer.
3. Minimal allowance of P800 per month plus contingent fees on contingent
fees on collection cases (case to case basis) aside from the attorney's fees
recovered from any lawsuit.
4. That in case of legal problems to be attended to outside Metro Manila and
Suburbs, the corporation shall defray expenses for transportation, lodging and
other legal expenses incidental in the case. 18
An analysis of the contract clearly shows that it was a general retainer, since its
primary purpose was to secure beforehand the services of the private respondent for
any legal problem which might afterward arise. 19 The fixed retaining fee was P800.00
a month. A retaining fee is a preliminary fee paid to ensure and secure a lawyer's
future services, to remunerate him for being deprived, by being retained by one party,
of the opportunity of rendering services to the other party and of receiving pay from
him. In the absence of an agreement to the contrary, the retaining fee is neither made
nor received in consideration of the services contemplated; it is apart from what the
client has agreed to pay for the services which he has retained him to perform. 20
In the retainer contract in question, there was no intention to make the retaining fee as
the attorney's fees for the services contemplated. This is evident from the provision
allowing additional attorney's fees in collection cases consisting of (1) a "contingent
fee" and (2) whatever the petitioner might recover as attorney's fees in each case. The
latter could only refer to the attorney's fees which the court might award to the
petitioner in appropriate cases.
While the contract did not mention non-collection cases, it is, nevertheless, clear
therefrom that such cases were not excluded from the retainership, as borne out by the
provision requiring the private respondent to "make appearances in court for cases
involving the corporation or any allied cases pertaining to the latter." As to such cases,
there was no specific stipulation of additional attorney's fees. Nevertheless, nothing
therein shows that the private respondent agreed to render professional service in such
cases gratuitously. The absence then of the stipulation of additional attorney's fees
cannot be construed as a bar to the collection of additional attorney's fees in non-
collection cases.
Two basic principles come into play. The first is as stated earlier, viz., that the retaining
fee is neither made nor received in consideration of the services contemplated unless
the contract itself so provides. The second is that, unless expressly stipulated, rendition
of professional services by a lawyer is for a fee or compensation and is not gratuitous.
This is implicit from the opening clause of Section 24, Rule 138 of the Rules of Court,
which states that "[an] attorney shall be entitled to have and recover from his client no
more than a reasonable compensation for his services. . . ," and by virtue of the
innominate contract of facio ut des (I do and you give), as enunciated by this Court
in Corpus v. Court of Appeals, 21 thus:
Moreover, the payment of attorney's fees . . . may also be justified by virtue of
the innominate contract of facio ut des (I do and you give) which is based on
the principle that "no one shall unjustly enrich himself at the expense of
another." Innominate contracts have been elevated to a codal provision in the
New Civil Code by providing under Article 1307 that such contracts shall be
regulated by the stipulations of the parties, by the general provisions or
principles of obligations and contracts, by the rules governing the most
analogous nominate contracts, and by the customs of the people. The
rationale of this article was stated in the 1903 case of Perez vs. Pomar (2 Phil.
682).
In Perez v. Pomar, 22 this Court stated:
[B]ut whether the plaintiffs services were solicited or whether they were offered
to the defendant for his assistance, inasmuch as these services were
accepted and made use of by the latter, we must consider that there was a
tacit and mutual consent as to the rendition of the services. This gives rise to
the obligation upon the person benefited by the services to make
compensation therefor, since the bilateral obligation to render service as
interpreter, on the one hand, and on the other to pay for the services rendered,
is thereby incurred. (Arts. 1088, 1089, and 1262 of the Civil Code).
Accordingly, as to non-collection cases where the petitioner was either a plaintiff or a
defendant, the private respondent could still collect attorney's fees, apart from his
regular retaining fee, on the basis of any supplemental agreement or, in its absence,
under the principle of quantum meruit. There was no such supplemental agreement in
this case.
We cannot sustain the private respondent's theory that he could collect attorney's fees
on contingent basis because in the other "non-collection" cases he handled for the
petitioner, he was paid on contingent basis at the rate of 10% of what was awarded to
the petitioner. In the first place, Civil Case No. 612 is still unresolved, and no judgment
has yet been rendered in favor of the petitioner. The amount in the memorandum of
agreement could not be made the basis of a "contingent fee" in the said case for at
least three reasons. First, in his own Urgent Motion to Direct Payment of Attorney's
Fees and/or Register Attorney's Charging Lien, the private respondent based the
contingent fee not only in Civil Case No. 612 but in a "multitude of peripheral cases,"
and the contingent fee would become due and collectible only if and when the
petitioner obtains a judgment in his favor in Civil Case No. 612. The second paragraph
of page 3 of the said motion reads as follows:
Hence, from May 1985 and continuously thru the years without interruption
and surviving a series of no less than five (5) changes of Presiding Judges,
the undersigned counsel labored tirelessly in handling the defense of client. In
addition to the instant lawsuit, a multitude of peripheral cases, civil, criminal
and administrative, arising from the non-delivery of titles by client on fully paid
lots in the subdivision project were also filed as a consequence, not only
against defendant but also against its President and Chief Executive
Officer (CEO). Needless to state, the undersigned was designated to handle
majority of these cases for both, where he appeared and conducted trial
without any "appearance fees" for more than eight (8) long years solely relying
on the contingent fee in case of recovery in the instant main
case. 23 (emphasis supplied)
Second, the amount of P28 million, which Filstream agreed to pay the petitioner, was
not a judgment or award in favor of the petitioner in Civil Case No. 612. It was the
consideration of the assignment, transfer, and conveyance to Filstream of all the
petitioner's "rights, interest and participation embodied and specified in the Joint
Venture Agreement (Annex "A") and in all the eight hundred seventy-five (875) parcels
of land comprising the SARANAY HOMES subdivision. . . ." The plaintiffs in Civil Case
No. 612 were not parties to the memorandum of agreement, and there is no showing
that they agreed to the assignment of the petitioner's rights, interest, and participation
in the Joint venture Agreement. While paragraph 10 of the memorandum of agreement
provides that the petitioner
shall cause to sign a JOINT MOTION TO DISMISS, together with the
CARREONS regarding Civil Case No. 612 of the Regional Trial Court
of Makati and to further DISMISS, the case filed against PNB
docketed as Civil Case No. 6918 of the Regional Trial Court of Makati
. . . [and] shall obtain the dismissal of all cases filed by lot buyers
against it now pending with the HLURB
the fact remains that no such motion to dismiss has been filed yet in Civil Case
No. 612, and there is no assurance whatsoever that the plaintiffs therein will
sign a joint motion to dismiss. Third, as correctly posited by the petitioner, the
private respondent had no participation in the negotiations leading to, and in
the preparation of, the memorandum of agreement.
Indisputably then, the private respondent's attorney's fee on "contingent basis" in Civil
Case No. 612 is unwarranted. If at all, he could only be entitled to attorney's fees
on quantum meruit basis as of the expiration of his retainer contract on 31 March 1993.
Quantum meruit simply means "as much as he deserves." 24 In no case, however, must
a lawyer be allowed to recover more than what is reasonable, pursuant to Section 24,
Rule 138 of the Rules of Court, which provides:
Sec. 24. Compensation of attorneys, agreement as to fees. — An attorney
shall be entitled to have and recover from his client no more than a reasonable
compensation for his services, with a view to the importance of the subject-
matter of the controversy, the extent of the services rendered, and the
professional standing of the attorney. No court shall be bound by the opinion
of attorneys as expert witnesses as to the proper compensation, but may
disregard such testimony and base its conclusion on its own professional
knowledge. A written contract for services shall control the amount to be paid
therefor unless found by the court to be unconscionable or unreasonable.
This Court had earlier declared the following as circumstances to be considered in
determining the reasonableness of a claim for attorney's fees: (1) the amount and
character of the service rendered; (2) labor, time, and trouble involved; (3) the nature
and importance of the litigation or business in which the services were rendered; (4)
the responsibility imposed; (5) the amount of money or the value of the property
affected by the controversy or involved in the employment; (6) the skill and experience
called for in the performance of the services; (7) the professional character and social
standing of the attorney; (8) the results secured; and (9) whether the fee is absolute or
contingent, it being recognized that an attorney may properly charge a much larger fee
when it is contingent than when it is not. 25
Rule 20.1, Canon 20 of the Code of Professional Responsibility enumerates the
following factors which should guide a lawyer in determining his fees:
(a) The time spent and the extent of the services rendered or required;
(b) The novelty and difficulty of the questions involved;
(c) The importance of the subject matter;
 (d) The skill demanded;
(e) The probability of losing other employment as a result of acceptance of the
proffered case;
(f) The customary charges for similar services and the schedule of fees of the
IBP Chapter to which he belongs;
(g) The amount involved in the controversy and the benefits resulting to the
client from the service;
(h) The contingency or certainty of compensation;
(i) The character of the employment, whether occasional or established; and
(j) The professional standing of the lawyer.
It was incumbent upon the private respondent to prove the reasonable amount of
attorney's fees, taking into account the foregoing factors or circumstances. The records
before us and the trial court's 11 October 1993 order do not confirm that the private
respondent proved by either testimonial or documentary evidence that the award of
P600,000.00 was reasonable. The private respondent's testimony thereon was crucial.
Yet, it does not appear from the 11 October 1993 order that he took the witness stand.
From the Minutes of the trial court attached to the Rollo of CA-G.R. CV No. 44839, 26 it
appears that only Atty. Atienza, and Mr. Suazo gave oral testimony on the motion.
It necessarily follows then that the 11 October 1993 order has insufficient factual basis,
and the trial court committed grave abuse of discretion in arbitrarily fixing the private
respondent's attorney's fees at P600,000.00. The affirmance of the said order by the
Court of Appeals premised on the provision in the retainer contract regarding
contingent fee is thus fatally flawed.
The interest for both the petitioner and the private respondent demands that the trial
court should conduct further proceedings in Civil Case No. 612 relative to the private
respondent's motion for the payment of attorney's fees and, thereafter, fix it in light of
Section 24, Rule 138 of the Rules of Court; Rule 20.1, Canon 20 of the Code of
Professional Responsibility; and the jurisprudentially established guiding principles in
determining attorney's fees on quantum meruit basis.
WHEREFORE, the instant petition is GRANTED. The challenged Decision of 31 March
1995 of the Court of Appeals in CA-G.R. CV No. 44839 and the Order of 11 October
1993 of the Regional Trial Court of Makati, Branch 64, in Civil Case No. 612 are hereby
SET ASIDE. The trial court is further. DIRECTED to set for further hearing the private
respondent's Urgent Motion to Direct Payment of Attorney's Fees and/or Register
Attorney's Charging Lien and thereafter to fix the private respondent's attorney's fees in
Civil Case No. 612 as of 31 March 1993 when his contract with the petitioner was
effectively terminated, taking into account Section 24, Rule 138 of the Rules of Court;
Rule 20.1, Canon 20 of the Code of Professional Responsibility; and the
jurisprudentially established guiding principles in determining attorney's fees
on quantum meruit basis. No pronouncement as to costs. SO ORDERED.
2. A.C. No. 13021, A.C. No. 13912, A.C. No. 15433 June 30, 2008
CONSTANCIA L. VALENCIA, complainant,
vs.
ATTY. DIONISIO C. ANTINIW, respondents.
DECISION
LEONARDO-DE CASTRO, J.:
This is an appeal for reinstatement to the Bar of respondent Dionisio C. Antiniw.
The record shows that respondent was disbarred and his name stricken off the Roll of
Attorneys on April 26, 1991 in a consolidated Decision4 of this Court, the dispositive
portion of which reads:
WHEREFORE, judgment is hereby rendered declaring: 1. Dionisio Antiniw
DISBARRED from the practice of law, and his name is ordered stricken off
from the roll of attorneys; 2. Arsenio Fer Cabanting SUSPENDED from the
practice of law for six months from finality of this judgment; and 3.
Administrative Case No. 1391 against Atty. Eduardo Jovellanos and additional
charges therein, and Administrative Case No. 1543 DISMISSED.
In the aforesaid consolidated Decision, respondent was found guilty of malpractice in
falsifying a notarized deed of sale and subsequently introducing the same as evidence
for his client in court.
Respondent’s motion for reconsideration of the consolidated decision disbarring him
was denied by the Resolution of August 26, 1993.5 In the same Resolution, the Court
also held with respect to respondent’s plea for mercy and compassion that:
x x x the same is merely NOTED until such time as he would have been able
to satisfactorily show contrition and proof of his being again worthy of
membership in the legal profession.
Subsequently, in a Manifestation dated September 17, 1993,6 respondent proffered his
apologies to the Court for his shortcomings as a legal practitioner asserting that if there
was an offense or oversight committed against the legal profession, it was due to his
sincere belief that he was doing it honestly to protect the interest of his client. He
pleaded that, pending his submission of proof showing that he is again worthy of
membership in the Bar, he be permitted to continue with his notarial work. In a
Resolution dated October 19, 1993,7 the Court denied respondent’s plea in the
aforesaid Manifestation.
On January 4, 1994, respondent filed a Petition dated December 8, 19938 praying for
leave to submit proof of his being again worthy to be re-admitted to the legal
profession. Attached to the Petition were testimonials, affidavits and sworn
certifications of known and outstanding members of his community at Urdaneta,
Pangasinan, as well as manifestos and resolutions of groups and associations
representing various sectors thereat, all attesting to his honesty, worthiness,
respectability and competency as a lawyer and as an elected Board Member in
Pangasinan. In a Resolution dated January 27, 1994,9 the Court denied said petition. A
Letter dated February 1, 199510 which was sent to the Court by Bishop Jesus C.
Galang, D.D. of the Diocese of Urdaneta, Pangasinan, pleading for respondent’s
reinstatement, was noted in the Court’s Resolution dated March 14, 1995.11
12
Respondent filed an Appeal for Reinstatement dated March 8, 1996, declaring that
since his disbarment, he had embarked on and actively participated in civic and
humanitarian activities in the Fifth District of Pangasinan where he was again elected
for the third time as a Provincial Board Member and for which activities he received
Plaques of Appreciation and Recognition, Resolution/Letters, Awards and
Commendations from local government officials of Pangasinan and different groups
and associations in the province, all showing that he is worthy to once again practice
the legal profession. His appeal, however, was denied by the Resolution dated April
23, 1996.13
On December 17, 1996, respondent filed a Plea for Re-Admission dated December 8,
1996,14 reiterating his earlier plea for the lifting of his disbarment. The plea was also
denied on January 28, 1997.15
On September 1, 1997, respondent again filed a Plea for Judicial Clemency and
Reinstatement to the Bar dated August 30, 1997,16 submitting in support thereof the
favorable indorsements, letters and resolutions from the Pangasinan Chapter of the
Integrated Bar of the Philippines (IBP); the Executive Judges of the Regional Trial
Courts at Lingayen and Urdaneta, Pangasinan; the Provincial Prosecutor’s Association
of Pangasinan; Eastern Pangasinan Lawyer’s League; the Provincial Board of
Pangasinan; Rotary Club of Urdaneta; and the past National President of the IBP, Atty.
Numeriano G. Tanopo Jr. The foregoing plea was merely noted by the Court on
October 14, 1997.17
The following year, respondent filed an Appeal dated July 8, 1998,18 reiterating therein
his apologies to the Court and promising that should he be given back his license to
practice law, he will live up to the exacting standards of the legal profession and abide
by the Code of Professional Ethics and the Lawyer’s Oath. Among the written proofs
appended to his appeal was the Letter dated June 18, 199819 from Bishop Galang, of
the Diocese of Urdaneta, Pangasinan, wherein he reiterated his earlier plea for
respondent’s reinstatement.
In a Letter dated July 13, 199820 received by this Court on July 23, 1998, Bishop
Galang withdrew his letter dated July 10, 1998 recommending respondent’s
reinstatement for being misled into signing the same.
Thereafter, respondent filed a Manifestation and Motion dated December 22,
1998,21 wherein he pointed out that more than seven (7) years had elapsed from the
time of his disbarment and that others who were likewise disbarred but for a shorter
duration, namely Attys. Benjamin Grecia and Benjamin Dacanay,22 had already been
reinstated to the law profession. Among the attachments to respondent’s Manifestation
was Resolution No. 98-7c dated 6 July 1998 issued by the IBP, Pangasinan Chapter,
strongly indorsing respondent’s plea for judicial clemency and reinstatement, and the
letter dated June 18, 1998 from Bishop Galang supporting his reinstatement to the Bar.
In a Resolution dated February 9, 1999,23 the Court noted (a) the letters dated June 18,
1998 and July 13, 1998 of Bishop Galang; (b) Appeal dated July 8, 1998 and
Manifestation and Motion dated December 22, 1998 both filed by respondent.
Respondent was also required to comment on Bishop Galang’s letter dated July 13,
1998 within ten days from notice.
In his Comments with Motion dated March 23, 1999,24 on Bishop Galang’s letter dated
July 13, 1998, respondent denied the existence of a letter dated July 10, 1998 of
Bishop Galang but acknowledged the existence of the letter dated June 18, 1998.
Respondent averred that if the Bishop was indeed referring to the June 18, 1998 letter,
he never misled or had any intention to mislead the bishop into signing the same. By its
Resolution dated June 22, 1999,25 the Court noted the aforesaid Comments with
Motion of respondent
An Appeal Reiterating Earlier Petition, Appeal, Pleas and Motion for Reinstatement to
the Bar dated August 28, 199926 was filed by the respondent on September 21, 1999.
In a Resolution dated November 16, 1999,27 the Court noted said appeal and denied
for lack of merit respondent’s prayer that his Plea for Judicial Clemency and
Reinstatement dated September 1, 1997 and Manifestation and Motion for
Reinstatement dated December 22, 1998 be approved and given due course.
Thereafter, respondent’s wife, Manuela A. Antiniw, sent to the Court a Letter of Appeal
dated February 7, 2000,28 asking for clemency in behalf of her husband and affirming
therein that her husband had for eight (8) years continuously pleaded for his
reinstatement and that he had submitted proof by way of testimonials of (a) his
character and standing prior to his disbarment, (b) his conduct subsequent to his
disbarment, and (c) his efficient government service. Attached to the letter of
respondent’s wife was a sworn testimonial of one of the complainants in the
consolidated administrative cases, Lydia Bernal, attesting to the respondent’s
character reformation. The aforesaid letter was noted by the Court in a Resolution
dated 28 February 2000.29
Respondent filed a Plea for Judicial Clemency and Reinstatement dated March 19,
2001,30 therein asserting that the long period of his disbarment gave him sufficient time
to soul-search and reflect on his professional conduct, redeem himself, and prove once
more that he would be able to practice law and at the same time uphold the dignity of
the legal profession. The Court, in its Resolution of June 26, 2001,31 denied the
aforesaid plea.
By its Indorsement dated September 10, 2001,32 the Office of the Chief Justice referred
to the Bar Confidant the letter dated August 24, 200133 of Assistant Commissioner
Jesse J. Caberoy of the Civil Service Commission (CSC) requesting comment on the
contention of respondent that the disbarment of a lawyer only prevents him from
practicing his profession and does not operate to divest him of his earned eligibility by
passing the Bar examination. In a Letter dated September 20, 2001,34 respondent cited
pertinent provisions of the Omnibus Rules Implementing Book V of Executive Order
No. 292 and other pertinent Civil Service Laws in support of his aforementioned stand.
The aforesaid Letters dated August 24, 2001 and September 20, 2001, of CSC
Assistant Commissioner and respondent, respectively, were noted by the Court’s
Resolution dated November 20, 2001.35 Likewise in said Resolution, the letters were
referred to the Office of the Bar Confidant (OBC) for evaluation, report and
recommendation.
In its Report and Recommendation dated January 25, 2002,36 the OBC opined that the
eligibility vested in a successful bar candidate would not be prejudiced or forfeited by
his disbarment and the matter of enjoying first- grade eligibility by passing the Bar, in
relation to the position of City Administrator, should be determined by the CSC.
Nevertheless, the OBC was of the view that the controversy between the CSC and
respondent could not be considered as already ripe for judicial determination. Thus, the
OBC recommended that the CSC, through Assistant Commissioner Caberoy, and
respondent be advised to institute the corresponding legal remedy before the proper
court.
In a Resolution dated February 12, 2002,37 the Court held that it could only resolve
actual controversies brought before it and would thus, refrain from rendering advisory
opinions. Accordingly, the Letter dated August 24, 2001 of Assistant Commissioner
Caberoy and Letter dated September 20, 2001 of respondent were merely noted.
Respondent then filed a Plea for Reinstatement to the Bar dated February 28,
2002,38 stating therein that for the past ten (10) years since he was disbarred, he had
deeply regretted having violated his obligations as a lawyer; that he realized the gravity
of his mistakes; and that because of such disbarment, he even lost his chance to be
permanently appointed as City Administrator of Urdaneta City and/or as City Legal
Officer, after his stint as a Provincial Board Member in Pangasinan for three (3)
consecutive terms. In the event his disbarment is lifted, respondent then promised
never to cause dishonor again to the legal profession and to abide by the ideals and
canons thereof. Attached to his Plea for Reinstatement to the Bar were certifications
from various civic and religious groups attesting to his good moral character and to his
worthiness to be a member of the legal profession. In a Resolution dated April 23,
2002,39 the Court noted the aforesaid Plea. Subsequently, the Court required the IBP to
Comment on the aforesaid respondent’s Plea through its Resolution dated July 23,
2002.40
In its Comment of September 9, 2002,41 the IBP, through its Commission on Bar
Discipline, recommended the following:
Considering that the respondent has shown that he has been repentant of
what he had done which was a gross violation of his lawyer’s oath and of the
Canon of Professional Ethics and that he has been completely reformed and is
therefore worthy to be reinstated in the Roll of Attorney’s as evidenced by
Certifications of different religious and civic groups, it is recommended that he
be allowed to again practice the legal profession.
It is, however recommended that he be placed on probation, meaning that the
reinstatement should only be temporary and that he be placed under
observation for one year.
If during the period of one year, he proves that he has completely lived up to
the high standards of the legal profession, by then it will be recommended that
his reinstatement as a member of the Bar be made permanent.42
The aforesaid comment was noted and referred to the IBP Board of Governors for
comment and recommendation by the Resolution dated December 3, 2002.43
The IBP Board of Governors issued its Resolution No. XVI-2005-99, dated March 12,
2005 44 resolving as follows:
xxx to approve respondent’s Plea for Reinstatement and recommend the reinstatement
of Atty. Dionisio C. Antiniw as member of the bar immediately.
On June 6, 2006, the Court issued a Resolution45 referring the case to the Office of the
Bar Confidant (OBC) for study and recommendation.
On March 23, 2007, the OBC submitted its Report and Recommendation,46 to wit:
Indeed the high standards of the Bar require an impeccable record but our
findings show that respondent has been sufficiently punished for the last
fifteen (15) years of his disbarment and he has sufficiently reformed to be a
worthy member of the Bar. In all candor, he promises the Court that should he
be reinstated to practice the legal profession, he will faithfully abide by the
ideals, canons and ethics of the legal profession and by his oath as a lawyer.
xxx
In the light of the foregoing, it is respectfully submitted that the disbarment of
respondent DIONISIO C. ANTINIW from the practice of law be LIFTED and he
be allowed to resume the practice of law. 47
We agree with the foregoing recommendations of the Office of the Bar Confidant and
the IBP Commission on Bar Discipline as affirmed by the IBP Board of Governors.
Respondent was disbarred from the practice of law pursuant to the Decision
promulgated on April 26, 199148 which pertinently reads, as follows:
There is a clear preponderant evidence that Atty. Antiniw committed
falsification of a deed of sale, and its subsequent introduction in court
prejudices his prime duty in the administration of justice as an officer of the
court.
A lawyer owes entire devotion to the interest of his client. (Santos vs. Dichoso,
84 SCRA 622) but not at the expense of truth. (Cosmos Foundry Shopworkers
Union vs. La Bu, 63 SCRA 313). The first duty of a lawyer is not to his client
but to the administration of justice. (Lubiano vs. Gordalla, 115 SCRA 459) To
that end, his client’s success is wholly subordinate. His conduct ought to and
must always be scrupulously observant of law and ethics. While a lawyer must
advocate his client’s cause in utmost earnestness and with the maximum skill
he can marshall, he is not at liberty to resort to illegal means for his client’s
interest. It is the duty of an attorney to employ, for the purpose of maintaining
the causes confided to him, such means as are consistent with truth and
honor. (Pangan vs Ramos, 93 SCRA 87).
Membership in the Bar is a privilege burdened with conditions. By far, the most
important of them is mindfulness that a lawyer is an officer of the court. (In re:
Ivan T. Publico, 102 SCRA 722). This Court may suspend or disbar a lawyer
whose acts show his unfitness to continue as a member of the Bar. (Halili vs.
CIR, 136 SCRA 112). Disbarment, therefore, is not meant as a punishment
depriving him of a source of livelihood but is rather intended to protect the
administration of justice by requiring that those who exercise this function
should be competent, honorable and reliable in order that courts and the
public may rightly repose confidence in them. (Noriega vs. Sison 125 SCRA
293). Atty. Antiniw failed to live up to the high standards of the law
profession.49
However, the record shows that the long period of respondent’s disbarment gave him
the chance to purge himself of his misconduct, to show his remorse and repentance,
and to demonstrate his willingness and capacity to live up once again to the exacting
standards of conduct demanded of every member of the bar and officer of the court.
During respondent’s disbarment for more than fifteen (15) years to date for his
professional infraction, he has been persistent in reiterating his apologies and pleas for
reinstatement to the practice of law and unrelenting in his efforts to show that he has
regained his worthiness to practice law, by his civic and humanitarian activities and
unblemished record as an elected public servant, as attested to by numerous civic and
professional organizations, government institutions, public officials and members of the
judiciary.
In Adez Realty, Inc. v. Court of Appeals,50 the disbarment of a lawyer was lifted for the
reasons quoted hereunder:
The disbarment of movant Benjamin M. Dacanay for three (3) years has, quite
apparently, given him sufficient time and occasion to soul-search and reflect
on his professional conduct, redeem himself and prove once more that he is
worthy to practice law and be capable of upholding the dignity of the legal
profession. His admission of guilt and repeated pleas for compassion and
reinstatement show that he is ready once more to meet the exacting standards
the legal profession demands from its practitioners.51
Moreover, it is well-settled that the objective of a disciplinary case is not so much to
punish the individual attorney as to protect the dispensation of justice by sheltering the
judiciary and the public from the misconduct or inefficiency of officers of the court.
Restorative justice, not retribution, is our goal in disciplinary proceedings.52
Guided by this doctrine and considering the evidence submitted by respondent
satisfactorily showing his contrition and his being again worthy of membership in the
legal profession, the Court finds that it is now time to lift herein respondent’s
disbarment and reinstate him to the august halls of the legal profession, but with the
following reminder:
[T]he practice of law is a privilege burdened with conditions. Adherence to the
rigid standards of mental fitness, maintenance of the highest degree of
morality and faithful compliance with the rules of the legal profession are the
conditions required for remaining a member of good standing of the bar and
for enjoying the privilege to practice law. The Supreme Court, as guardian of
the legal profession, has ultimate disciplinary power over attorneys. This
authority to discipline its members is not only a right but a bounden duty as
well x x x. That is why respect and fidelity to the Court is demanded of its
members.53
Likewise, respondent is enjoined to keep in mind that:
Of all classes and professions, the lawyer is most sacredly bound to uphold
the laws, as he is their sworn servant; and for him, of all men in the world, to
repudiate and override the laws, to trample them under foot and to ignore the
very bonds of society, argues recreancy to his position and office and sets a
pernicious example to the insubordinate and dangerous elements of the body
politic.54
WHEREFORE, the disbarment of DIONISIO C. ANTINIW from the practice of law
is LIFTED and he is therefore allowed to resume the practice of law upon payment. SO
ORDERED.

3. United States Supreme Court
SAMPLINER v. MOTION PICTURE PATENTS CO.(1920)
No. 89
Argued: November 12, 1920Decided: December 6, 1920
[254 U.S. 233, 234] Messrs. John G. White, of Cleveland, Ohio, Gustavue A. Rogers
and Saul E. Rogers, both of New York City, E. C. Brandenburg, of Washington, D. C.,
and Austin V. Cannon, of Cleveland, Ohio, for plaintiff in error.
Messrs. Samuel Seabury, William M. Seabury, and Charles F. Kingsley, all of New
York City, and Robert H. McCarter, of Newark, N. J., for defendants in error.
Mr. Justice McREYNOLDS delivered the opinion of the Court.
The opinion below is reported in 255 Fed. 242, 168 C. C. A. 202.
By an assignment executed in Ohio December 28, 1911, the Lake Shore Film & Supply
Company, a corporation of that state, undertook to convey to plaintiff in error its claim
and right of action against defendants for damages resulting from their violations of the
Sherman Act (Comp. St. 8820 et seq.). Relying upon the assignment, he brought suit
for $750,000 January 16, 1917, in the United States District Court, Southern District of
New York. The defendants denied liability, and set up the following as a separate and
distinct defense:
'The plaintiff at the time of his alleged purchase of the claims in controversy, set up in
the complaint herein, was an attorney and counselor at law of the state of Ohio,
practicing as such before the courts of that state. ... That at the time of such alleged
purchase it was, and is now, the law of the state of Ohio that an attorney who
purchased a demand with full knowledge and notice that the same was contested and
would be litigated, and with the intent and for the purpose of bringing an action thereon,
was guilty of maintenance and champerty and got no title to such demand by such
purchase [254 U.S. 233, 235] which could be enforced either at law or in equity, and
that the same was at said time, and still is, the law of the state of New York . ... That
the plaintiff purchased the demand set forth in the complaint with full knowledge and
notice that the same was contested and would be litigated and with the intent and for
the purpose of bringing action thereon.'
All parties agreeing, the court directed a separate trial before a jury upon the issues of
fact and law arising under the special defense. Plaintiff in error testified in his own
behalf and called two other witnesses-none were called by the defendants. The
essential facts as well stated by the Circuit Court of Appeals follow:
'The assignment states that 'for value received the Lake Shore ... Company ... hereby
sells, assigns, and transfers to J. H. Sampliner all of its rights and interests in and to
any and all damages which it has sustained and suffered by reason of injury to its
business, because of the unlawful combination and monopoly in restraint of interstate
commerce, and in violation of the Sherman Anti-Trust Act, brought about, engaged in
and as a result of the unlawful agreement by and between the Motion Picture Patents
Company; ... all of said parties having conspired together for the purpose of ruining and
destroying the business of the Lake Shore ... Company, and contrary to and in violation
of the Sherman Anti-Trust Act. ...'
'The testimony shows that the plaintiff had rendered legal services to the assignor as
its general counsel in connection with the difficulties in which it found itself with the
defendants, and that those services extended over a period from July, 1910, to
December, 1911. The plaintiff regarded the reasonable value of his services as worth
from $8,000 to $10,000. On December 10, 1911, he was asked by the president of the
Lake Shore Company whether he would be willing to bring suit against the defendants,
[254 U.S. 233, 236] and that he replied that he would bring the suit, being satisfied
that the company had a valid claim, and that it would cost from $8, 000 to $10,000. He
was informed by the president of the company that it had been losing money very
heavily, and it was absolutely impossible for it to undertake any litigation of that kind.
He was asked what the company already owed him, and replied in the neighborhood of
$9,000 or $10,000. He was told the company did not have the money and could not
pay him, and thereupon he said, that if the company would pay him $5,000, in cash he
would cancel the indebtedness. After some reflection the president, Mr. Mandelbaum,
told him that the corporation would transfer to him all rights it had against the
defendants, if he would be willing to accept it as a satisfaction of the company's
indebtedness to him. The plaintiff told him that he would think it over and give him an
answer. After a few days' reflection the plaintiff expressed a willingness to accept the
assignment, and was told that the board of directors wanted to know whether, if they
made an assignment, the plaintiff would as a part of the consideration defend the
company and its officers in case any suit was brought against them in matters growing
out of their difficulties with the defendants. He agreed to do this, and the assignment
was executed.
'It appears, therefore, that the assignment originated, not with the plaintiff, but with the
Lake Shore Company, and that the consideration for the agreement involved the
payment of a past indebtedness, as well as for future services of a professional
character. It is also to be noted that the invalidity of the assignment is set up, not by the
client, the assignor, who has at no time sought to repudiate it, but by third parties,
between whom and the plaintiff no fiduciary relations have existed.'
At the conclusion of the evidence the defendants asked a directed verdict 'on the
ground that the plaintiff has [254 U.S. 233, 237] not shown title to this cause of action
and it now affirmatively appears from the evidence that the agreement under which the
plaintiff assumes to bring this suit is champertous and void.' Thereupon the following
occurred- Mr. Rogers representing the plaintiff:
'Mr. Rogers: If your honor is going to grant the motion for a direction of a verdict I will
take a formal objection to it, but my request is that if your honor is going to find for the
defendant, that it be a nonsuit to the plaintiff's cause of action. I think that is as far as
your honor can go.
'The Court: You may be right, but the defendant has rested and moves for the direction
of a verdict, and I am going to pass on that motion.
'Mr. Rogers: But, your honor, I submit there aren't any questions of fact on which to go
to the jury; I submit the matter is purely a matter of law for your honor to determine;
and I think the question whether the agreement is or is not champertous is one of law
for the court.
'The Court: Well, Mr. Rogers, you may either rest on the motion of the defense and
take an exception to such ruling as I make, if it should be adverse, or you can ask to go
to the jury. That is entirely for you to determine.
'Mr. Rogers: Well, if there are any questions of fact to be disposed of, your honor, I ask
to go to the jury upon the questions of fact.
'Mr. Seabury: I think he should specify, and not put a hypothetical motion.
'The Colurt: I cannot have any 'ifs.' If you think, under section 973 of the Code, the
court has no right to make a direction, and you are right about it, you will have a good
exception; if, on the other hand, the court is right, your exception will be addressed, not
to [254 U.S. 233, 238] the question of practice, but to the substantive questions in the
case.
'Mr. Rogers: Then, your honor, may I state my position on the record?
'The Court: Yes, certainly.
'Mr. Rogers: The defendant having moved for a direction in order to preserve the
plaintiff's rights, I beg leave to state my position on the record with the permission of
the court.
'Mr understanding is that the question is one of law to be passed upon by the court
from the facts adduced. If, however, it is necessary in order to preserve the plaintiff's
rights that I make a request to go to the jury, I ask to go to the jury upon the question
as to whether or not the plaintiff took an assignment of the cause of action for the intent
and purpose to begin an action thereon, and whether the assignment to him was bona
fide for an antecedent indebtedness.
'The Court: The court cannot take conditional offers. Counsel is at liberty, if so advised,
to request to go to the jury and the court will rule.
'Mr. Rogers: Then I move for a direction, your honor, for the plaintiff, upon the issue
framed under your honor's order on the ground the defendant has failed to make out
the defense set up in the answer, to wit, that the plaintiff purchased this cause of
action- that is the defense that is set up-and I desire to call you honor's attention
particularly to the form of the defense as pleaded. The defense that this plaintiff's title is
void because he purchased this cause of action with the intent to sue thereon. It now
appears uncontradicted, from the evidence, that instead of having purchased this
cause of action, it was assigned to him under a bona fide assignment for an
antecedent indebtedness owing to him for services which he had performed for the
corporation.
'The Court: Both sides having moved for a direction [254 U.S. 233, 239] of a verdict, I
find as a fact that the plaintiff purchased this cause of action with intent to sue thereon.
'I find, as a fact, also, that the so-called assignment, Plaintiff's Exhibit No. 1, was
executed by the Lake Shore Company, through its officers, pursuant to action at a
special meeting of the board of directors.'
A verdict for the defendants was directed and judgment entered thereon. The Circuit
Court of Appeals declared itself concluded by the trial court's finding 'that the plaintiff
purchased this cause of action with intent to sue thereon,' and held:
'We must dispose of this case upon the theory that the plaintiff did not in fact take this
assignment to extinguish a precedent debt but that he purchased it for the purpose of
suing upon it; that he, an attorney at law, purchased from his client for $5,000 a cause
of action which he values at $750,000. The question we must answer therefore is
whether the law sanctions such a transaction between parties standing in the
confidential relation of attorney and client. We are satisfied that the common law does
not sanction it.'
Among other things counsel for plaintiff in error now insist that--
'If there were any questions of fact to be decided or divergent inferences of fact to be
made the District Court erred in not submitting them to the jury.'
The point is well taken.
Statements by plaintiff's counsel made it sufficiently plain that while he sought an
instructed verdict he also requested to go to the jury if the court held a contrary view
concerning the evidence. In the circumstances disclosed we think the request was
adequate and timely under former opinions of this court. Empire State Cattle Co. v.
Atchison, Topeka & Santa Fe Ry. Co., 210 U.S. 1, 8 , 28 S. Sup. Ct. 607, 15 Ann. Cas.
70; Sena v. American Turquois Co., 220 U.S. 497, 501 , 31 S. Sup. Ct. 488; Schmidt v.
Bank of Commerce, 234 U.S. 64, 66 , 34 S. Sup. Ct. 730; Williams v. Vreeland, 250
U.S. 295, 298 , 39 S. Sup. Ct. 438, 3 A. L. R. 1038. It should have been granted.
Clearly some substantial evidence strongly [254 U.S. 233, 240] tended to show that
the assignment was taken in extinguishment of an existing indebtedness and not for
mere speculation upon the outcome of intended litigation.
The judgment below must be reversed and the cause remanded to the District Court
for further proceedings in conformity with this opinion.
4. A.C. No. 10548 December 10, 2014
CAROLINE CASTANEDA JIMENEZ, Complainant, vs.
ATTY. EDGAR B. FRANCISCO, Respondent.
DECISION
MENDOZA, J.:
This refers to the Resolutions of the Integrated Bar of the Philippines, Board of
Governors (IBP-BOG), dated January 3, 20131 and March 22, 2014,2 adopting and
approving the findings of the Commission on Bar Discipline (CBD) which found Atty.
Edgar 8. Francisco (Alty Francisco) administratively liable for multiple violations of the
Code of Professional Responsibility (CPR) and recommended the penalty of
suspension of one (1) year from the practice of law.
On September 6, 2007, the CBD received a complaint, dated July 14, 2007,3 filed by
Caroline Castañeda Jimenez (complainant)against Atty. Francisco for multiple
violations of the CPR. On October 24, 2007, Atty. Francisco filed his Answer. 4 On June
26, 2009, the mandatory conference was held and terminated. Only the counsel for
Atty. Francisco appeared. The notice of the said conference addressed to complainant
was returned with the notation "unknown at the given address." No new address was
provided by the complainant. Both parties wererequired to submit their respective
position papers. For this purpose, Atty. Francisco adopted his Answer. The
Antecedents
Mario Crespo, otherwise known as Mark Jimenez (Jimenez), filed a complaint for
estafa against complainant, her sister Rosemarie Flaminiano, Marcel Crespo,
Geraldine Antonio, Brenda Heffron, Magdalena Cunanan, and Isabel Gonzalez.5 The
said complaint was docketed as IS No. 074314 with the Office of the City Prosecutor of
Makati City. Jimenez alleged that he was the true and beneficial owner of the shares of
stock in Clarion Realty and Development Corporation (Clarion), which was
incorporated specifically for the purpose of purchasing a residential house located in
Forbes Park, Makati City (Forbes property). The incorporators and original
stockholders of Clarion were as follows:
Thomas K. Chua - ₱500,000.00
Teresita C. Alsua - ₱500,000.00
Myla Villanueva - ₱249,998.00
Edgar B. Francisco - ₱1.00
Soledad Gamat - ₱1.00
Simultaneous with the drafting of Clarion’s Articles of Incorporation, the above-named
stockholders, except for Myla Villanueva (Myla), executed a deed of assignment of
their respective shares in favor of complainant, who was then Jimenez’s common-law
partner.Clarion’s total capitalization was only ₱5,000,000.00. Thus, in order to achieve
its purpose of purchasing the Forbes property, Clarion simulated a loan from the
complainant in the amount of ₱80,750,000.00. Thereafter, Clarion purchased the
Forbes property in the amount of ₱117,000,000.00 from Gerardo Contreras. To effect
the sale, Myla handed a check in the said amount which was funded entirely by
Jimenez. The sale, however, was undervalued. In the deed of sale, it was made to
appear that the Forbes property was purchased for ₱78,000,000.00 only. Further, the
money used as the purchase price was not reflected in the books of Clarion.
On July 19, 2001, Thomas Chua and Teresita Alsua assigned their shares in Clarion to
Jimenez by virtue of a deed of trust. On the other hand, Myla’s 249,997 shares were
transferred to complainant based on a deed of assignment. The remaining one (1)
share was transferred to Ma. Carolina C. Crespo. These transactions appeared in
Clarion’s General Information Sheet (GIS)filed with the Securities and Exchange
Commission (SEC). Resultantly, the subscribed shares of Clarion were as follows:
Mark Jimenez - P 500,000.00
Caroline Jimenez - P 749,997.00
Ma. Carolina C. Crespo - P 1.00
Edgar B. Francisco - P 1.00
Soledad Gamat - P 1.00
On November 5, 2002, Jimenez transferred all his shares to complainant by another
deed of assignment, making her the holder of Clarion shares amounting to
₱1,249,997.00.
According to Jimenez’s complaint, while he was in prison in the United States in 2004,
he learned from Atty. Francisco that his son, Marcel Crespo (Marcel), approached the
complainant and threatened her, claiming that the United States Internal Revenue
Service (IRS)was about to go after their properties. Marcel succeeded in persuading
complainant to transfer her nominal shares in Clarion to Geraldine Antonio, through
another deed of assignment. Again, this was reflected in Clarion’s GIS for the year
2004.
Thereafter, Jimenez was informed by Atty. Francisco that, through fraudulent means,
complainant and her co-respondents in the estafa case, put the Forbes property for
sale sometimein August 2004. The said property was eventually sold to Philmetro
Southwest Enterprise Inc. (Philmetro)for the amount of ₱118,000,000.00 without
Jimenez’s knowledge. This sale was again undervalued at ₱78,000.000.00 per the
deed of sale. Atty. Francisco relayed to Jimenez that he was the one who received the
payment for the sale of the Forbes property and that he handed all the proceeds
thereof to Rosemarie Flaminiano in the presence of complainant.
Jimenez’s complaint for estafa was based on complainant’s alleged participation in the
fraudulent means in selling the Forbes property which was acquired by Clarion with
Jimenez’s money. Complainant was duty bound to remit all the proceeds of the sale to
Jimenez as the true and beneficial owner. Complainant and her co-respondents,
however, misappropriated and converted the fundsfor their personal use and benefit.
In support of Jimenez’s complaint for estafa, Atty. Francisco executed an affidavit
reiterating its factual averments.6 A perusal of this affidavit likewise would show the
following claims and admissions, among other things, of Atty. Francisco:
1. Sometime in August 2004, complainant called him, asking for assistance in
the documentation of the sale of the Forbes property owned by Clarion. Atty.
Francisco asked her if she had secured permission from Mark Jimenez and
complainant answered in the affirmative.
2. The Board of Directors of Clarion issued a resolution authorizing him to
negotiate the sale of the property.
3. For purposes of the sale, he opened an account with Security Bank, San
Francisco Del Monte branch. When the cash payment was deposited, he
withdrew the amount and handed the same to Rosemarie Flaminiano in the
presence of complainant.
4. All transfers of shares were caused without any consideration. The transfer
taxes, however, were paid.
5. When Mark Jimenez returned to the Philippines, he was able to confirm that
the sale of the Forbes property was without his knowledge and approval. The
proceeds of the sale had already been farmed out to different corporations
established by complainant and her sister.
6. The frequent changes in stockholdings were premeditated in order to steal
the money of Mark Jimenez.
The Complaint
Complainant was shocked upon reading the allegations in the complaint for estafa filed
by Jimenez against her. She felt even more betrayed when she read the affidavit of
Atty. Francisco, on whom she relied as her personal lawyer and Clarion’s corporate
counsel and secretary of Clarion. This prompted her to file a disciplinary case against
Atty. Francisco for representing conflicting interests. According to her, she usually
conferred with Atty. Francisco regarding the legal implications of Clarion’s transactions.
More significantly, the principal documents relative to the sale and transfer of Clarion’s
property were all prepared and drafted by Atty. Francisco or the members of his law
office.7 Atty. Francisco was the one who actively participated in the transactions
involving the sale of the Forbes property. Without admitting the truth of the allegations
in his affidavit, complainant argued that its execution clearly betrayed the trust and
confidence she reposed on him as a lawyer. For this reason, complainant prayed for
the disbarment of Atty. Francisco.
The Respondent’s Position
In his Answer,8 Atty. Francisco replied that Jimenez initially engaged his services in
1998 for the incorporation of Clarion for the purpose of purchasing a residential house
in Forbes Park, where he intended to live with his long-time partner, the complainant;
that the original incorporators and stockholders of Clarion held their respective shares
in trust for Jimenez; that the subsequent changes in the ownership of Clarion
shareholdings were also pursuant to Jimenez’s orders; and that as the corporate
secretary and legal counsel of Clarion, he prepared all the legal documentation togive
effect to the said transfers and, ultimately, to the purchase of the Forbes property.
Atty. Francisco further stated that sometime in 2004, Jimenez was imprisoned in the
United States for excessive contributions to the Democratic Party; that during this time,
Jimenez’s son, Marcel, and the complainant, asked him again to changethe ownership
of Clarion shares in order to avoid the attachment of Jimenez’s properties in a tax
evasion case; that he acceded to the request on the belief that this was in accordance
with Jimenez’s wishes; and that as a result, almost 100% of Clarion’s ownership was
transferred in the name of Geraldine Antonio.
Atty. Francisco also claimed that, thereafter, complainant tasked him to talk to
prospective buyers and to negotiate the sale of the Forbes property until it was sold for
₱118,000,000.00; that Marcel and complainant led him to believe that Jimenez had
knowledge of the sale as they were in constant communication with him; that all these
representations, however, turned out to be false when Jimenez returned tothe
Philippines and discovered that the proceeds of the sale were coursed through other
corporations set up by complainant and her sister; that Jimenez likewise learned of the
successive sale of his other properties, including Meridian Telekoms Inc., by the
members of his family; and that this led to the filing of the estafa case against the
complainant and the others. As a witness to the fraud committed against Jimenez, Atty.
Francisco executed the affidavit narrating the facts and circumstances surrounding the
said transactions.
Atty. Francisco mainly argued thathe violated neither the rule on disclosures of
privileged communication nor the proscription against representing conflicting interests,
on the ground that complainant was not his client. He was the lawyer of Jimenez and
the legal counsel of Clarion, but never of the complainant. He might have assisted her
in some matters, but these were all under the notion that Jimenez had given him
authority to do so. Further, though he acted as legal counsel for Clarion, no attorney-
client relationship between him and complainant was formed, as a corporation has a
separate and distinct personality from its shareholders. While he admitted that the legal
documentation for the transfer of shares and the sale of the Forbes property were
prepared by him and notarized by the members of his law firm, he averred that these
acts were performed in his capacity as the corporate secretary and legal counsel
ofClarion, and not as a lawyer of complainant. Therefore, he served no conflicting
interests because it was not a "former client" and a "subsequent client" who were the
opposing parties in litigation.
He opined that assuming that complainant was indeed his client, the rule on privileged
communication does not apply to his case. Here, complainant failed to allege,
muchless prove, the requisites for the application of the privilege. When Atty. Francisco
denied being her lawyer, the complainant should have established, by clear and
convincing evidence, that a lawyer-client relationship indeed existed between them.
Complainant failed to do this.
Arguing that the execution of his affidavit in the estafa case was but a truthful narration
of facts by a witness, Atty. Francisco cited Gonzaga v. Cañete,9 where the Court ruled
that "the fact that one of the witnesses for the defendant had been formerly the lawyer
for the defendant in this suit was no ground for rejecting his testimony." In this case, he
merely attested to the fraudulent acts of complainant, in the course of which, he
defended and served Jimenez as a client. This was likewise pursuant to the rule that
unlawful and illegal motives and purposes were not covered by the privilege. It was just
unfortunate that he fell for the ploy of complainant.
The Findings of the Investigating Commissioner
In the Commissioner’s Report,10 dated November 7, 2011, the Investigating
Commissioner, Atty. Jose I. dela Rama, Jr. (Investigating Commissioner),found Atty.
Francisco guilty of violations of the CPR and recommended that he be suspended for
one (1) year from the practice of law. Initially, the Investigating Commissioner noted
that the subsequent affidavit of desistance executed by Jimenez in the estafa case did
not affect the investigation conducted by the CBD as it was not an ordinary court which
accepted compromises or withdrawals of cases. After weighing on the claims of the
parties, the Investigating Commissioner concluded that nothing in the records would
show that a lawyer-client relationship existed between Atty. Francisco and
Jimenez.11 The circumstances would show that Atty. Francisco was an original
incorporator and shareholder of Clarion. He was also the legal counsel and corporate
secretary of the said corporation, the articles of incorporation of which did not include
Jimenez as an original incorporator. He became a stockholder only in 2001, when
Jimenez acquired shares from Thomas Chua and Teresita Alsua. Jimenez’s
participation in Clarion affairs again stopped when he assigned the entirety of his
shares in favor of complainant.
Granting that Jimenez really owned 100% of Clarion as alluded to by Atty. Francisco,
the report stated that it would appear that the latter permitted misrepresentations as to
Clarion’s ownership to be reported to the SEC through its GIS. The Investigating
Commissioner also pointed out Atty. Francisco’s clear admission that the transfer of
shares within Clarion were "without any consideration," ran counter to the deeds of
assignment that he again admittedly executed as corporate counsel. Worse, Atty.
Francisco admitted to have simulated the loan and undervalued the consideration of
the effected sale of the Forbes property, which displayed his unlawful, dishonest,
immoral, and deceitful conduct in violation of Canon 1 of the CPR. Further, when he
executed the affidavit containing allegations against the interest of Clarion and
complainant, the Investigating Commissioner held that Atty. Francisco violated the rule
on privileged communication and engaged in an act that constituted representation of
conflicting interests in violation of Canons 15 and 21 of the CPR.
In its January 3, 2013 Resolution,12 the IBP-BOG adopted and approved, in toto, the
findings and recommendation of the CBD against Atty. Francisco.
The respondent received a copy of the said resolution on March 26, 2013 and moved
for its reconsideration.13
Atty. Francisco appealed to the compassion of the IBP-BOG, reasoning out that the
penalty of suspension of one (1) year is too severe considering that in his more than
three decades of practice, he had never been involved in any act that would warrant
the imposition of disciplinary action upon him. It was only in 2007, when his client,
Jimenez, experienced a difficult crisis involving his children and common-law partner
that he experienced a major upheaval in his professional life. He apologized for his not
being too circumspect in dealing with the relatives of Jimenez.
As to the charges against him, Atty. Francisco reiterated that his participation in the
execution of the documents pertaining to the sale of the Forbes property were all
connected to his capacity as Clarion’s corporate secretary and legal counsel, not to
mention his ties with his client and friend, Jimenez. He admitted that he owed fidelity to
Clarion and Jimenez, but denied that this duty extended to the incorporators and
shareholders of Clarion. Thus, when complainant sought advice in her capacity as a
shareholder in Clarion, no fiduciary duty arose on his part. In his own words, Atty.
Francisco insisted that "Carol is not Clarion and vice versa."14
Attached to Atty. Francisco’s motion for reconsideration was an affidavit executed by
Jimenez, stating that he had retained the legal services of Atty. Francisco since 1999.
Espousing Atty. Francisco’s defenses, Jimenez asserted that Atty. Francisco’s law firm
was in charge of all the companies he owned in the Philippines.He directed Atty.
Francisco to execute all the documentation to show his ownership of these companies,
including Clarion. These documents were in the possession of complainant for
safekeeping. When Jimenez ran for Congress in 2001,Atty. Francisco personally
assisted him in the filing ofhis certificate of candidacy and the proceedings before the
electoral tribunals. While he was in prison in the United States, it was Atty. Francisco
who visited and told him that his children, Myla and Marcel, were then facilitating the
sale of one of his companies, Meridian Telekoms, Inc., without his knowledge. He
asked Atty. Francisco to keep quiet about his children’s betrayal and to wait until he
could go home. When he filed the criminal cases against his children and complainant,
the latter even filed a frivolous kidnapping case against Atty. Francisco. According to
Jimenez, the people who committed crimes against him were now exhausting all
possible means to keep Atty. Francisco silent and to prevent the latter from performing
his duties as a lawyer.
In its March 22, 2014 Resolution,15 the IBP-BOG denied the respondent’s motion for
reconsideration.
No petition for review was filed with the Court.
The Court’s Ruling
Violations of Canons 1 and 10
of the CPR and the Lawyer’s Oath
Canon 1 and Rule 1.01 of the CPR provide:
CANON 1 – A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS
OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES.
Rule 1.0 – A lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct.
Canon 1 clearly mandates the obedience of every lawyer to laws and legal processes.
To the best of his ability, a lawyer is expected to respect and abide by the law and,
thus, avoid any act or omission that is contrary thereto. A lawyer’s personal deference
to the law not only speaks of his character but it also inspires respect and obedience
tothe law, on the part of the public.
Rule 1.0, on the other hand, states the norm of conduct to be observed by all lawyers.
Any act or omission that is contraryto, or prohibited or unauthorized by, or in defiance
of, disobedient to, or disregards the law is "unlawful." "Unlawful" conduct does not
necessarily imply the element of criminality although the concept is broad enough to
include such element.16 To be "dishonest" means the disposition to lie, cheat, deceive,
defraud or betray; be unworthy; lacking in integrity, honesty, probity, integrity in
principle, fairness and straight forwardness17 while conduct that is "deceitful" means
the proclivity for fraudulent and deceptive misrepresentation, artifice or device that is
used upon another who is ignorant of the true facts, to the prejudice and damage of the
party imposed upon.18
Membership in the legal profession is bestowed upon individuals who are not only
learned in law, but also known to possess good moral character. Lawyers should act
and comport themselves with honesty and integrity in a manner beyond reproach,
inorder to promote the public’s faith in the legal profession.19 "To say that lawyers must
at all times uphold and respect the law is to state the obvious, but such statement can
never be over emphasized. Considering that, of all classes and professions, [lawyers
are] most sacredly bound to uphold the law, it is imperative that they live by the law."20
When Atty. Francisco was admitted to the Bar, he also took an oath to "obey the laws,"
"do no falsehood," and conduct himself as a lawyer according to the best of his
knowledge and discretion.21
In the facts obtaining in this case, Atty. Francisco clearly violated the canons and his
sworn duty. He is guilty of engaging in dishonest and deceitful conduct when he
admitted to having allowed his corporate client, Clarion, to actively misrepresent to the
SEC, the significant matters regarding its corporate purpose and subsequently, its
corporate shareholdings. In the documents submitted to the SEC, such as the deeds of
assignment and the GIS, Atty. Francisco, in his professional capacity, feigned the
validity of these transfers of shares, making it appear that these were done for
consideration when, in fact, the said transactions were fictitious, albeit upon the alleged
orders of Jimenez. The Investigating Commissioner was correct in pointing out that this
ran counter to the deeds of assignment which he executed as corporate counsel. In his
long practice as corporate counsel, it is indeed safe to assume that Atty. Francisco is
knowledgeable in the law on contracts, corporation law and the rules enforced by the
SEC. As corporate secretary of Clarion, it was his duty and obligation to register valid
transfers of stocks. Nonetheless, he chose to advance the interests of his clientele with
patent disregard of his duties as a lawyer. Worse, Atty. Francisco admitted to have
simulated the loan entered into by Clarion and to have undervalued the consideration
of the effected sale of the Forbes property. He permitted this fraudulent ruse to cheat
the government of taxes. Unquestionably, therefore, Atty. Francisco participated in a
series of grave legal infractions and was content to have granted the requests of the
persons involved.
Despite assertions that these were in accordance to Jimenez’s wishes, or pursuant to
complainant’s misrepresentations, the Court cannot turn a blind eye on Atty.
Francisco’s act of drafting, or at the very least, permitting untruthful statements to be
embodied in public documents. If the Court allows this highly irregular practice for the
specious reason that lawyers are constrained to obey their clients’ flawed scheming
and machinations, the Court would, in effect, sanction wrongdoing and falsity. This
would undermine the role of lawyers as officers of the court.
Time and again, the Court has reminded lawyers that their support for the cause of
their clients should never be attained at the expense of truth and justice. While a
lawyer owes absolute fidelity to the cause of his client, full devotion to his genuine
interest, and warm zeal in the maintenance and defense of his rights, as well as the
exertion of his utmost learning and ability, he must do so only within the bounds of the
law. It needs to be emphasized that the lawyer's fidelity to his client must not be
pursued at the expense of truth and justice, and mustbe held within the bounds of
reason and common sense. His responsibility to protect and advance the interests of
his client does not warranta course of action propelled by ill motives and malicious
intentions.22
In the same vein, Atty. Francisco’s admissions show that he lacks candor regarding his
dealings. Canon 10 of the CPR provides that, "[a] lawyer owes candor, fairness and
good faith to the court." Corollary thereto, Rule 10.0 of the CPR provides that "a lawyer
shall do no falsehood, nor consent to the doing of any in Court, nor shall he mislead or
allow the Court to be misled by an artifice." Lawyers are officers of the court, called
upon to assist in the administration of justice. They act as vanguards of our legal
system, protecting and upholding truth and the rule oflaw. They are expected to act
with honesty in all their dealings, especially with the court.23
From the foregoing, Atty. Francisco clearly violated his duties as a lawyer embodied in
the CPR, namely, to avoid dishonest and deceitful conduct, (Rule 1.01, Canon 1) and
to actwith candor, fairness and good faith (Rule 10.01, Canon 10). Also, Atty. Franciso
desecrated his solemn oath not to do any falsehood nor consent to the doing of the
same.
Rule on Conflicting Interests and
Disclosure of Privileged
Communication
With respect to Atty. Francisco’s alleged representation of conflicting interests and
disclosure of privileged communication, the Court deviates from the findings of the IBP-
BOG.
Rule 15.03, Canon 15 of the CPR provides that, "[a] lawyer shall not represent
conflicting interests except by written consent of all concerned given after a full
disclosure of the facts."24 "The relationship between a lawyer and his/her client should
ideallybe imbued with the highest level of trust and confidence. This is the standard of
confidentiality that must prevail to promote a full disclosure of the client’s most
confidential information to his/her lawyer for an unhampered exchange of information
between them. Needless to state, a client can only entrust confidential information to
his/her lawyer based on an expectation from the lawyer of utmost secrecy and
discretion; the lawyer, for his part, is duty-bound to observe candor, fairness and
loyalty in all his dealings and transactions withthe client. Part of the lawyer’s duty in this
regard isto avoid representing conflicting interests…"25 Thus, even if lucrative fees
offered by prospective clients are at stake, a lawyer must decline professional
employment if the same would trigger a violation of the prohibition against conflict of
interest.
In Quiambao v. Bamba,26 the Court discussed the application of the rule on conflict of
interest in this wise:
In broad terms, lawyers are deemed to represent conflicting interests when, in behalf of
one client, it is their duty to contend for that which duty to another client requires them
to oppose. Developments in jurisprudence have particularized various tests to
determine whether a lawyer’s conduct lies within this proscription. One test is whether
a lawyer is duty-bound to fight for an issue or claim in behalf of one client and, at the
same time, to oppose that claim for the other client. Thus, if a lawyer’s argument for
one client has to be opposed by that same lawyer in arguing for the other client, there
is a violation of the rule.
Another test of inconsistency of interests is whether the acceptance of a new relation
would prevent the full discharge of the lawyer’s duty of undivided fidelity and loyalty to
the client or invite suspicion of unfaithfulness or double-dealing in the performance of
that duty. Still another test is whether the lawyer would be called upon in the new
relation to use against a former client any confidential information acquired through
their connection or previous employment.
The proscription against representation of conflicting interest applies to a situation
where the opposing parties are present clients in the same actionor in an unrelated
action. It is of no moment that the lawyer would not be called upon to contend for one
client that which the lawyer has to oppose for the other client, or that there would be no
occasion to use the confidential information acquired from one to the disadvantage of
the other as the two actions are wholly unrelated. It is enough that the opposing parties
in one case, one of whom would lose the suit, are present clients and the nature or
conditions of the lawyer’s respective retainers with each of them would affect the
performance of the duty of undivided fidelity to both clients.
From the foregoing, it is obvious that the rule on conflict of interests presupposes a
lawyer-client relationship. The purpose of the rule is precisely to protect the fiduciary
nature of the ties between an attorney and his client. Conversely, a lawyer may not be
precluded from accepting and representing other clients on the ground of conflict of
interests, if the lawyer-client relationship does not exist in favor of a party in the first
place.
In determining whether or not Atty. Francisco violated the rule on conflict of interests, a
scrutiny of the parties’ submissions with the IBP reveals that the complainant failed to
establish that she was a client of Atty. Francisco.
First, complainant’s claim of being Atty. Francisco’s client remains unsubstantiated,
considering its detailed refutation. All that the complaint alleged was that Atty.
Francisco was Clarion’s legal counsel and that complainant sought advice and
requested documentation of several transfers of shares and the sale of the Forbes
property. This was only successful in showing that Atty. Francisco, indeed, drafted the
documents pertaining to the transaction and that he was retained as legal counsel of
Clarion. There was no detailed explanation as to how she supposedly engaged the
services of Atty. Francisco as her personal counsel and as to what and how she
communicated with the latter anent the dealings she had entered into. With the
complaint lacking in this regard, the unrebutted answer made by Atty. Francisco,
accompanied with a detailed narrative of his engagement as counsel of Jimenez and
Clarion, would have to prevail.
Second, there is a stark disparity inthe amount of narrative details presented by the
parties. Atty. Francisco’s claim thathe was the counsel of Clarion and Jimenez, and not
of the complainant, was clearly established in a sworn statement executed by Jimenez
himself. Complainant’s evidence pales in comparison with her claims of being the client
of Atty. Francisco couched in general terms that lacked particularity of circumstances.
Third, noteworthy is the fact that complainant opted not to file a reply to Atty.
Francisco’s answer. This could have given her opportunity to present evidence
showing their professional relationship. She also failed to appear during the mandatory
conference with the IBP-CBD without even updating her residential address on record.
Her participation in the investigation of the case apparently ended at its filing.
In suspension or disbarment proceedings, lawyers enjoy the presumption of innocence,
and the burden of proof rests upon the complainant to clearly prove the allegations in
the complaint by preponderant evidence. Preponderance of evidence means that the
evidence adduced by one side is, as a whole, superior to or has greater weight than
that of the other. It means evidence which is more convincing to the court as worthy of
belief than that which is offered in opposition thereto. Under Section 1 of Rule 133, in
determining whether or not there is preponderance of evidence, the court may consider
the following: (a) all the facts and circumstances of the case; (b) the witnesses’ manner
of testifying, their intelligence, their means and opportunity of knowing the facts to
which they are testifying, the nature of the facts towhich they testify, the probability or
improbability of their testimony; (c) the witnesses’ interest or want of interest, and also
their personal credibility so far as the same may ultimately appear in the trial; and (d)
the number of witnesses, although it does not mean that preponderance is necessarily
with the greater number.27
Markedly, Atty. Francisco could have prevented his entanglement with this fiasco
among the members of Jimenez’s family by taking an upfront and candid stance in
dealing with Jimenez’s children and complainant. He could have been staunch in
reminding the latter that his tasks were performed in his capacity as legal counsel for
Clarion and Jimenez. Be that as it may, Atty. Francisco’s indiscretion does not detract
the Court from finding that the totality of evidence presented by the complainant
miserably failed to discharge the burden of proving that Atty. Francisco was her lawyer.
At most, he served as the legal counsel of Clarion and, based on the affirmation
presented, of Jimenez. Suffice it to say, complainant failed to establish that Atty.
Francisco committed a violation of the rule on conflict of interests.
Consequently, the rule on lawyer-client privilege does not apply. In Mercado v.
Vitriolo,28 the Court elucidated on the factors essential to establish the existence of the
said privilege, viz:
In fine, the factors are as follows:
(1) There exists an attorney-client relationship, or a prospective attorney-client
relationship, and it is by reason of this relationship that the client made the
communication.
Matters disclosed by a prospective client to a lawyer are protected by the rule on
privileged communication even if the prospective client does not thereafter retain the
lawyer or the latter declines the employment. The reason for this is to make the
prospective client free to discuss whatever he wishes with the lawyer without fear that
what he tells the lawyer will be divulged or used against him, and for the lawyer to be
equally free to obtain information from the prospective client. xxx
(2) The client made the communication in confidence.
The mere relation of attorney and client does not raise a presumption of confidentiality.
The client must intend the communication to be confidential.
A confidential communication refers to information transmitted by voluntary act of
disclosure between attorney and client in confidence and by means which, so far as
the client is aware, discloses the information to no third person other than one
reasonably necessary for the transmission of the information or the accomplishment of
the purpose for which it was given.
Our jurisprudence on the matter rests on quiescent ground. Thus, a compromise
agreement prepared by a lawyer pursuant to the instruction of his client and delivered
to the opposing party, an offer and counter-offer for settlement, or a document given by
a client to his counsel not in his professional capacity, are not privileged
communications, the element of confidentiality not being present.
(3) The legal advice must be sought from the attorney in his professional capacity.
The communication made by a client to his attorney must not be intended for mere
information, but for the purpose of seeking legal advice from his attorney as to his
rights or obligations. The communication must have been transmitted by a client to his
attorney for the purpose of seeking legal advice.
If the client seeks an accounting service, or business or personal assistance, and not
legal advice, the privilege does not attach to a communication disclosed for such
purpose.
[Emphases supplied]
Considering these factors in the case at bench, the Court holds that the evidence on
record fails to demonstrate the claims of complainant. As discussed, the complainant
failed to establish the professional relationship between her and Atty. Francisco. The
records are further bereft of any indication that the "advice" regarding the sale of the
Forbes property was given to Atty. Francisco in confidence. Neither was there a
demonstration of what she had communicated to Atty. Francisco nor a recital of
circumstances under which the confidential communication was relayed. All that
complaint alleged in her complainant was that "she sought legal advice from
respondent in various occasions."29 Considering that complainant failed to attend the
hearings at the IBP, there was no testimony as to the specific confidential information
allegedly divulged by Atty. Francisco without her consent. It is, therefore, difficult, if not
impossible, to determine if there was any violation of the rule on privileged
communication. As held in Mercado, such confidential information is a crucial link in
establishing a breach of the rule on privileged communication between attorney and
client. It is not enough to merely assert the attorney-client privilege.30 It cannot be
gainsaid then that complainant, who has the burden of proving that the privilege
applies, failed in this regard.
The Penalty
A member of the Bar may be penalized, even disbarred or suspended from his office
as an attorney, for violating of the lawyer’s oath and/or for breaching the ethics of the
legal profession as embodied in the CPR,31 for the practice of law is a profession, a
form of public trust, the performance of which is entrusted to those who are qualified
and who possess good moral character.32 The appropriate penalty on an errant lawyer
depends on the exercise of sound judicial discretion based on the surrounding facts.33
Under Section 27, Rule 138 of the Revised Rules of Court, a member of the Bar may
be disbarred or suspended on any of the following grounds: (1) deceit; (2) malpractice
or other gross misconduct in office; (3) grossly immoral conduct; (4) conviction of a
crime involving moral turpitude; (5) violation of the lawyer's oath; (6) willful
disobedience of any lawful order of a superior court; and (7) willful appearance as an
attorney for a party without authority. A lawyer may be disbarred or suspended for
misconduct, whether in his professional or private capacity, which shows him to be
wanting in moral character, honesty, probity and good demeanor, or unworthy to
continue as an officer of the court.
While the Court finds no violation of the rule on conflict of interests and disclosure of
privileged communication, the acts of Atty. Francisco, in actively and passively allowing
Clarion tomake untruthful representations to the SEC and in other public documents,
still constitute malpractice and gross misconduct in his office as attorney, for which a
suspension from the practice of law for six (6) months is warranted.
WHEREFORE, the Court finds Atty. Edgar B. Francisco GUILTY of violation of Canons
1 and 10 of the Code of Professional Responsibility for which he is SUSPENDED from
the practice of law for a period of six (6) months, effective upon receipt of this Decision,
with a STERN WARNING that a commission of the same or similar offense in the
future will result in the imposition of a more severe penalty.
Let a copy of this Decision be entered into the records of Atty. Edgar B. Francisco and
furnished to the Office of the Clerk of Court, the Office of the Bar Confidant, the
Integrated Bar of the Philippines, and all courts in the Philippines, for their information
and guidance.
Atty. Francisco is DIRECTED to inform the Court of the date of his receipt of this
Decision so that the Court can determine the reckoning point when his suspension
shall take effect. SO ORDERED.
5. A.C. No. 5108 May 26, 2005
ROSA F. MERCADO, complainant, vs.
ATTY. JULITO D. VITRIOLO, respondent.
DECISION
PUNO, J.:
Rosa F. Mercado filed the instant administrative complaint against Atty. Julito D.
Vitriolo, seeking his disbarment from the practice of law. The complainant alleged that
respondent maliciously instituted a criminal case for falsification of public document
against her, a former client, based on confidential information gained from their
attorney-client relationship.
Let us first hearken to the facts.
Complainant is a Senior Education Program Specialist of the Standards Development
Division, Office of Programs and Standards while respondent is a Deputy Executive
Director IV of the Commission on Higher Education (CHED).1
Complainant's husband filed Civil Case No. 40537 entitled "Ruben G. Mercado v. Rosa
C. Francisco," for annulment of their marriage with the Regional Trial Court (RTC) of
Pasig City. This annulment case had been dismissed by the trial court, and the
dismissal became final and executory on July 15, 1992.2
In August 1992, Atty. Anastacio P. de Leon, counsel of complainant, died. On February
7, 1994, respondent entered his appearance before the trial court as collaborating
counsel for complainant.3
On March 16, 1994, respondent filed his Notice of Substitution of Counsel, 4 informing
the RTC of Pasig City that he has been appointed as counsel for the complainant, in
substitution of Atty. de Leon.
It also appears that on April 13, 1999, respondent filed a criminal action against
complainant before the Office of the City Prosecutor, Pasig City, entitled "Atty. Julito
Vitriolo, et al. v. Rose Dela Cruz F. Mercado," and docketed as I.S. No. PSG 99-9823,
for violation of Articles 171 and 172 (falsification of public document) of the Revised
Penal Code.5 Respondent alleged that complainant made false entries in the
Certificates of Live Birth of her children, Angelica and Katelyn Anne. More specifically,
complainant allegedly indicated in said Certificates of Live Birth that she is married to a
certain Ferdinand Fernandez, and that their marriage was solemnized on April 11,
1979, when in truth, she is legally married to Ruben G. Mercado and their marriage
took place on April 11, 1978.
Complainant denied the accusations of respondent against her. She denied using any
other name than "Rosa F. Mercado." She also insisted that she has gotten married only
once, on April 11, 1978, to Ruben G. Mercado.
In addition, complainant Mercado cited other charges against respondent that are
pending before or decided upon by other tribunals – (1) libel suit before the Office of
the City Prosecutor, Pasig City;6 (2) administrative case for dishonesty, grave
misconduct, conduct prejudicial to the best interest of the service, pursuit of private
business, vocation or profession without the permission required by Civil Service rules
and regulations, and violations of the "Anti-Graft and Corrupt Practices Act," before the
then Presidential Commission Against Graft and Corruption;7 (3) complaint for
dishonesty, grave misconduct, and conduct prejudicial to the best interest of the
service before the Office of the Ombudsman, where he was found guilty of misconduct
and meted out the penalty of one month suspension without pay;8 and, (4) the
Information for violation of Section 7(b)(2) of Republic Act No. 6713, as amended,
otherwise known as the Code of Conduct and Ethical Standards for Public Officials and
Employees before the Sandiganbayan.9
Complainant Mercado alleged that said criminal complaint for falsification of public
document (I.S. No. PSG 99-9823) disclosed confidential facts and information relating
to the civil case for annulment, then handled by respondent Vitriolo as her counsel.
This prompted complainant Mercado to bring this action against respondent. She
claims that, in filing the criminal case for falsification, respondent is guilty of breaching
their privileged and confidential lawyer-client relationship, and should be disbarred.
Respondent filed his Comment/Motion to Dismiss on November 3, 1999 where he
alleged that the complaint for disbarment was all hearsay, misleading and irrelevant
because all the allegations leveled against him are subject of separate fact-finding
bodies. Respondent claimed that the pending cases against him are not grounds for
disbarment, and that he is presumed to be innocent until proven otherwise.10 He also
states that the decision of the Ombudsman finding him guilty of misconduct and
imposing upon him the penalty of suspension for one month without pay is on appeal
with the Court of Appeals. He adds that he was found guilty, only of simple misconduct,
which he committed in good faith.11
In addition, respondent maintains that his filing of the criminal complaint for falsification
of public documents against complainant does not violate the rule on privileged
communication between attorney and client because the bases of the falsification case
are two certificates of live birth which are public documents and in no way connected
with the confidence taken during the engagement of respondent as counsel. According
to respondent, the complainant confided to him as then counsel only matters of facts
relating to the annulment case. Nothing was said about the alleged falsification of the
entries in the birth certificates of her two daughters. The birth certificates are filed in the
Records Division of CHED and are accessible to anyone.12
In a Resolution dated February 9, 2000, this Court referred the administrative case to
the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.13
The IBP Commission on Bar Discipline set two dates for hearing but complainant failed
to appear in both. Investigating Commissioner Rosalina R. Datiles thus granted
respondent's motion to file his memorandum, and the case was submitted for
resolution based on the pleadings submitted by the parties.14
On June 21, 2003, the IBP Board of Governors approved the report of investigating
commissioner Datiles, finding the respondent guilty of violating the rule on privileged
communication between attorney and client, and recommending his suspension from
the practice of law for one (1) year.
On August 6, 2003, complainant, upon receiving a copy of the IBP report and
recommendation, wrote Chief Justice Hilario Davide, Jr., a letter of desistance. She
stated that after the passage of so many years, she has now found forgiveness for
those who have wronged her.
At the outset, we stress that we shall not inquire into the merits of the various criminal
and administrative cases filed against respondent. It is the duty of the tribunals where
these cases are pending to determine the guilt or innocence of the respondent.
We also emphasize that the Court is not bound by any withdrawal of the complaint or
desistance by the complainant. The letter of complainant to the Chief Justice imparting
forgiveness upon respondent is inconsequential in disbarment proceedings.
We now resolve whether respondent violated the rule on privileged communication
between attorney and client when he filed a criminal case for falsification of public
document against his former client.
A brief discussion of the nature of the relationship between attorney and client and the
rule on attorney-client privilege that is designed to protect such relation is in order.
In engaging the services of an attorney, the client reposes on him special powers of
trust and confidence. Their relationship is strictly personal and highly confidential and
fiduciary. The relation is of such delicate, exacting and confidential nature that is
required by necessity and public interest.15 Only by such confidentiality and protection
will a person be encouraged to repose his confidence in an attorney. The hypothesis is
that abstinence from seeking legal advice in a good cause is an evil which is fatal to
the administration of justice.16 Thus, the preservation and protection of that relation will
encourage a client to entrust his legal problems to an attorney, which is of paramount
importance to the administration of justice.17 One rule adopted to serve this purpose is
the attorney-client privilege: an attorney is to keep inviolate his client's secrets or
confidence and not to abuse them.18 Thus, the duty of a lawyer to preserve his client's
secrets and confidence outlasts the termination of the attorney-client relationship,19 and
continues even after the client's death.20 It is the glory of the legal profession that its
fidelity to its client can be depended on, and that a man may safely go to a lawyer and
converse with him upon his rights or supposed rights in any litigation with absolute
assurance that the lawyer's tongue is tied from ever disclosing it.21 With full disclosure
of the facts of the case by the client to his attorney, adequate legal representation will
result in the ascertainment and enforcement of rights or the prosecution or defense of
the client's cause.
Now, we go to the rule on attorney-client privilege. Dean Wigmore cites the factors
essential to establish the existence of the privilege, viz:
(1) Where legal advice of any kind is sought (2) from a professional legal
adviser in his capacity as such, (3) the communications relating to that
purpose, (4) made in confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or by the legal advisor,
(8) except the protection be waived.22
In fine, the factors are as follows:
(1) There exists an attorney-client relationship, or a prospective attorney-client
relationship, and it is by reason of this relationship that the client made the
communication.
Matters disclosed by a prospective client to a lawyer are protected by the rule on
privileged communication even if the prospective client does not thereafter retain the
lawyer or the latter declines the employment.23 The reason for this is to make the
prospective client free to discuss whatever he wishes with the lawyer without fear that
what he tells the lawyer will be divulged or used against him, and for the lawyer to be
equally free to obtain information from the prospective client.24
On the other hand, a communication from a (prospective) client to a lawyer for some
purpose other than on account of the (prospective) attorney-client relation is not
privileged. Instructive is the case of Pfleider v. Palanca,25 where the client and his wife
leased to their attorney a 1,328-hectare agricultural land for a period of ten years. In
their contract, the parties agreed, among others, that a specified portion of the lease
rentals would be paid to the client-lessors, and the remainder would be delivered by
counsel-lessee to client's listed creditors. The client alleged that the list of creditors
which he had "confidentially" supplied counsel for the purpose of carrying out the terms
of payment contained in the lease contract was disclosed by counsel, in violation of
their lawyer-client relation, to parties whose interests are adverse to those of the client.
As the client himself, however, states, in the execution of the terms of the aforesaid
lease contract between the parties, he furnished counsel with the "confidential" list of
his creditors. We ruled that this indicates that client delivered the list of his creditors to
counsel not because of the professional relation then existing between them, but on
account of the lease agreement. We then held that a violation of the confidence that
accompanied the delivery of that list would partake more of a private and civil wrong
than of a breach of the fidelity owing from a lawyer to his client.
(2) The client made the communication in confidence.
The mere relation of attorney and client does not raise a presumption of
confidentiality.26 The client must intend the communication to be confidential.27
A confidential communication refers to information transmitted by voluntary act of
disclosure between attorney and client in confidence and by means which, so far as
the client is aware, discloses the information to no third person other than one
reasonably necessary for the transmission of the information or the accomplishment of
the purpose for which it was given.28
Our jurisprudence on the matter rests on quiescent ground. Thus, a compromise
agreement prepared by a lawyer pursuant to the instruction of his client and delivered
to the opposing party,29 an offer and counter-offer for settlement,30 or a document given
by a client to his counsel not in his professional capacity,31 are not privileged
communications, the element of confidentiality not being present. 32
(3) The legal advice must be sought from the attorney in his professional capacity.33
The communication made by a client to his attorney must not be intended for mere
information, but for the purpose of seeking legal advice from his attorney as to his
rights or obligations. The communication must have been transmitted by a client to his
attorney for the purpose of seeking legal advice.34
If the client seeks an accounting service,35 or business or personal assistance,36 and
not legal advice, the privilege does not attach to a communication disclosed for such
purpose.
Applying all these rules to the case at bar, we hold that the evidence on record fails to
substantiate complainant's allegations. We note that complainant did not even specify
the alleged communication in confidence disclosed by respondent. All her claims were
couched in general terms and lacked specificity. She contends that respondent violated
the rule on privileged communication when he instituted a criminal action against her
for falsification of public documents because the criminal complaint disclosed facts
relating to the civil case for annulment then handled by respondent. She did not,
however, spell out these facts which will determine the merit of her complaint. The
Court cannot be involved in a guessing game as to the existence of facts which the
complainant must prove.
Indeed, complainant failed to attend the hearings at the IBP. Without any testimony
from the complainant as to the specific confidential information allegedly divulged by
respondent without her consent, it is difficult, if not impossible to determine if there was
any violation of the rule on privileged communication. Such confidential information is a
crucial link in establishing a breach of the rule on privileged communication between
attorney and client. It is not enough to merely assert the attorney-client privilege.37 The
burden of proving that the privilege applies is placed upon the party asserting the
privilege.38
IN VIEW WHEREOF, the complaint against respondent Atty. Julito D. Vitriolo is hereby
DISMISSED for lack of merit.
SO ORDERED.
6. 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, 1991,2 another 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.6 Respondent 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 letter-complaint.
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 hearing23 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.