A.C. No.
4497            September 26, 2001 that respondent granted and reduced bail in a criminal case without
MR. and MRS. VENUSTIANO G. SABURNIDO, complainants,
vs.
ATTY. FLORANTE E. MADROÑO,1 respondent.
QUISUMBING, J.:
For our resolution is the administrative complaint2 for disbarment of
respondent, Atty. Florante E. Madroño filed by spouses Venustiano and
Rosalia Saburdino. Complainants allege that respondent has been
harassing them by filing numerous complaints against them, in addition
to committing acts of dishonesty.
Complainant Venustiano Saburnido is a member of the Philippine
National Police stationed at Balingasag, Misamis Oriental, while his wife
Rosalia is a public school teacher. Respondent is a former judge of the
Municipal Circuit Trial Court, Balingasag-Lagonglong, Misamis Oriental.
Previous to this administrative case, complainants also filed three
separate administrative cases against respondent.
In A. M. No. MTJ-90-383,3 complainant Venustiano Saburnido filed
charges of grave threats and acts unbecoming a member of the judiciary
against respondent. Respondent was therein found guilty of pointing a
high-powered firearm at complainant, who was unarmed at the time,
during a heated altercation. Respondent was accordingly dismissed
from the service with prejudice to reemployment in government but
without forfeiture of retirement benefits.
Respondent was again administratively charged in the consolidated
cases of Sealana-Abbu v. Judge Madroño, A.M. No. 92-1-084-RTC
and Sps. Saburnido v. Judge Madroño, A.M. No. MTJ-90-486.4 In the first
case, Assistant Provincial Prosecutor Florencia Sealana-Abbu charged
prior notice to the prosecution. In the second case, the spouses
Saburnido charged that respondent, in whose court certain confiscated
smuggled goods were deposited, allowed other persons to take the
goods but did not issue the corresponding memorandum receipts. Some
of the goods were lost while others were substituted with damaged
goods. Respondent was found guilty of both charges and his retirement
benefits were forfeited.
In the present case, the spouses Saburnido allege that respondent has
been harassing them by filing numerous complaints against them,
namely:
1. Adm. Case No. 90-0755,5 for serious irregularity, filed by respondent
against Venustiano Saburnido. Respondent claimed that Venustiano lent
his service firearm to an acquaintance who thereafter extorted money
from public jeepney drivers while posing as a member of the then
Constabulary Highway Patrol Group.
2. Adm. Case No. 90-0758,6 for falsification, filed by respondent against
Venustiano Saburnido and two others. Respondent averred that
Venustiano, with the help of his co-respondents in the case, inserted an
entry in the police blotter regarding the loss of Venustiano's firearm.
3. Crim. Case No. 93-67,7 for evasion through negligence under Article
224 of the Revised Penal Code, filed by respondent against Venustiano
Saburnido. Respondent alleged that Venustiano Saburnido, without
permission from his superior, took into custody a prisoner by final
Judgment who thereafter escaped.
4. Adm. Case No. 95 33,8 filed by respondent against Rosalia Saburnido
for violation of the Omnibus Election Code. Respondent alleged that
Rosalia Saburnido served as chairperson of the Board of Election
Inspectors during the 1995 elections despite being related to a
candidate for barangay councilor.
At the time the present complaint was filed, the three actions filed
against Venustiano Saburnido had been dismissed while the case
against Rosalia Saburnido was still pending.
Complainants allege that respondent filed those cases against them in
retaliation, since they had earlier filed administrative cases against him
that resulted in his dismissal from the judiciary. Complainants assert
that due to the complaints filed against them, they suffered much
moral, mental, physical, and financial damage. They claim that their
children had to stop going to school since the family funds were used up
in attending to their cases.
For his part, respondent contends that the grounds mentioned in the
administrative cases in which he was dismissed and his benefits
forfeited did not constitute moral turpitude. Hence, he could not be
disbarred therefor. He then argues that none of the complaints he filed
against complainants was manufactured. He adds that he "was so
unlucky that Saburnido was not convicted."9 He claims that the
complaint for serious irregularity against Venustiano Saburnido was
dismissed only because the latter was able to antedate an entry in the
police blotter stating that his service firearm was lost. He also points out
that Venustiano was suspended when a prisoner escaped during his
watch. As for his complaint against Rosalia Saburnido, respondent
contends that by mentioning this case in the present complaint, Rosalia
wants to deprive him of his right to call the attention of the proper
authorities to a violation of the Election Code.
In their reply, complainants reiterate their charge that the cases against
them were meant only to harass them. In addition, Rosalia Saburnido
stressed that she served in the BEI in 1995 only because the supposed
chairperson was indisposed. She stated that she told the other BEI
members and the pollwatchers that she was related to one candidate
and that she would desist from serving if anyone objected. Since nobody
objected, she proceeded to dispense her duties as BEI chairperson. She
added that her relative lost in that election while respondent's son won.
In a resolution dated May 22, 1996,10 we referred this matter to the
Integrated Bar of the Philippines (IBP) for investigation, report, and
recommendation.
In its report submitted to this Court on October 16, 2000, the IBP noted
that respondent and his counsel failed to appear and present evidence
in the hearing of the case set for January 26, 2000, despite notice. Thus,
respondent was considered to have waived his right to present evidence
in his behalf during said hearing. Neither did respondent submit his
memorandum as directed by the IBP.
After evaluating the evidence before it, the IBP concluded that
complainants submitted convincing proof that respondent indeed
committed acts constituting gross misconduct that warrant the
imposition of administrative sanction. The IBP recommends that
respondent be suspended from the practice of law for one year.
We have examined the records of this case and find no reason to
disagree with the findings and recommendation of the IBP.
A lawyer may be disciplined for any conduct, in his professional or
private capacity, that renders him unfit to continue to be an officer of
the court.11 Canon 7 of the Code of Professional Responsibility
commands all lawyers to at all times uphold the dignity and integrity of
the legal profession. Specifically, in Rule 7.03, the Code provides:
RULE 7.03. A lawyer shall not engage in conduct that adversely
reflects on his fitness to practice law, nor shall be whether in
 public or private life, behave in a scandalous manner to the an erring attorney from the esteemed brotherhood of lawyers, where
discredit of the legal profession. the evidence calls for it, we will also not disbar him where a lesser
penalty will suffice to accomplish the desired end.13 In this case, we find
Clearly, respondent's act of filing multiple complaints against herein suspension to be a sufficient sanction against respondent. Suspension,
complainants reflects on his fitness to be a member of the legal we may add, is not primarily intended as a punishment, but as a means
profession. His act evinces vindictiveness, a decidedly undesirable trait to protect the public and the legal profession.14
whether in a lawyer or another individual, as complainants were
instrumental in respondent's dismissal from the judiciary. We see in WHEREFORE, respondent Atty. Florante E. Madroño is found GUILTY of
respondent's tenacity in pursuing several cases against complainants gross misconduct and is SUSPENDED from the practice of law for one
not the persistence of one who has been grievously wronged but the year with a WARNING that a repetition the same or similar act will be
obstinacy of one who is trying to exact revenge. dealt with more severely. Respondent's suspension is effective upon his
receipt of notice of this decision. Let notice of this decision be spread in
Respondent's action erodes rather than enhances public perception of respondent's record as an attorney in this Court, and notice of the same
the legal profession. It constitutes gross misconduct for which he may served on the Integrated Bar of the Philippines and on the Office of the
be suspended, following Section 27, Rule 138 of the Rules of Court, Court Administrator for circulation to all the courts concerned.
which provides:
SO ORDERED.
SECTION 27. Disbarment or suspension of attorneys by Supreme
Court, grounds therefor. — A member of the bar may be
disbarred or suspended from his office as attorney by the
Supreme Court for any deceit, malpractice, or other gross
misconduct in such office, grossly immoral conduct, or by
reason of his conviction of a crime involving moral turpitude, or
for any violation of the oath which he is required to take before
admission to practice, or for a wilful disobedience appearing as
an attorney for a party to a case without authority so to do.x x x

Complainants ask that respondent be disbarred. However, we find that

suspension from the practice of law is sufficient to discipline
respondent.

The supreme penalty of disbarment is meted out only in clear cases of

misconduct that seriously affect the standing and character of the
lawyer as an officer of the court.12 While we will not hesitate to remove

G.R. No. L-28546 July 30, 1975
VENANCIO CASTANEDA and NICETAS HENSON, petitioners,
vs.
PASTOR D. AGO, LOURDES YU AGO and THE COURT OF
APPEALS, respondents.
The parties in this case, except Lourdes Yu Ago, have been commuting
to this Court for more than a decade.
In 1955 the petitioners Venancio Castañeda and Nicetas Henson filed a
replevin suit against Pastor Ago in the Court of First Instance of Manila
to recover certain machineries (civil case 27251). In 1957 judgment was
rendered in favor of the plaintiffs, ordering Ago to return the
machineries or pay definite sums of money. Ago appealed, and on June
30, 1961 this Court, in Ago vs. Castañeda, L-14066, affirmed the
judgment. After remand, the trial court issued on August 25, 1961 a writ
of execution for the sum of P172,923.87. Ago moved for a stay of
execution but his motion was denied, and levy was made on Ago's
house and lots located in Quezon City. The sheriff then advertised them
for auction sale on October 25, 1961. Ago moved to stop the auction
sale, failing in which he filed a petition for certiorari with the Court of
Appeals. The appellate court dismissed the petition and Ago appealed.
On January 31,1966 this Court, in Ago vs. Court of Appeals, et al., L-
19718, affirmed the dismissal. Ago thrice attempted to obtain a writ of
preliminary injunction to restrain the sheriff from enforcing the writ of
execution "to save his family house and lot;" his motions were denied,
and the sheriff sold the house and lots on March 9, 1963 to the highest
bidders, the petitioners Castañeda and Henson. Ago failed to redeem,
and on April 17, 1964 the sheriff executed the final deed of sale in favor
of the vendees Castañeda and Henson. Upon their petition, the Court of
First Instance of Manila  issued a writ of possession to the properties.
However, on May 2, 1964 Pastor Ago, now joined by his wife, Lourdes
Yu Ago, as his co-plaintiff, filed a complaint in the Court of First Instance
of Quezon City (civil case Q-7986) to annul the sheriff's sale on the
ground that the obligation of Pastor Ago upon which judgment was
rendered against him in the replevin suit was his personal obligation,
and that Lourdes Yu Ago's one-half share in their conjugal residential
house and lots which were levied upon and sold by the sheriff could not
legally be reached for the satisfaction of the judgment. They alleged in
their complaint that wife Lourdes was not a party in the replevin suit,
that the judgment was rendered and the writ of execution was issued
only against husband Pastor, and that wife Lourdes was not a party to
her husband's venture in the logging business which failed and resulted
in the replevin suit and which did not benefit the conjugal partnership.
The Court of First Instance of Quezon City issued an ex parte  writ of
preliminary injunction restraining the petitioners, the Register of Deeds
and the sheriff of Quezon City, from registering the latter's final deed of
sale, from cancelling the respondents' certificates of title and issuing
new ones to the petitioners and from carrying out any writ of
possession. A situation thus arose where what the Manila court had
ordered to be done, the Quezon City  court countermanded. On
November 1, 1965, however, the latter court lifted the preliminary
injunction it had previously issued, and the Register of deeds of Quezon
City cancelled the respondents' certificates of title and issued new ones
in favor of the petitioners. But enforcement of the writ of possession
was again thwarted as the Quezon City court again issued a temporary
restraining order which it later lifted but then re-restored. On May 3,
1967 the court finally, and for the third time, lifted the restraining order.
While the battle on the matter of the lifting and restoring of the
restraining order was being fought in the Quezon City court, the Agos
filed a petition for certiorari and prohibition with this Court under date
of May 26, 1966, docketed as L-26116, praying for a writ of preliminary
injunction to enjoin the sheriff from enforcing the writ of possession.
This Court found no merit in the petition and dismissed it in a minute
resolution on June 3, 1966; reconsideration was denied on July 18,
1966. The respondents then filed on August 2, 1966 a similar petition for
certiorari and prohibition with the Court of Appeals (CA-G.R. 37830-R),
praying for the same preliminary injunction. The Court of Appeals also
dismissed the petition. The respondents then appealed to this Court (L-
27140).1äwphï1.ñët  We dismissed the petition in a minute resolution
on February 8, 1967.
The Ago spouses repaired once more to the Court of Appeals where
they filed another petition for certiorari  and prohibition with
preliminary injunction (CA-G.R. 39438-R). The said court gave due
course to the petition and granted preliminary injunction. After hearing,
it rendered decision, the dispositive portion of which reads:
WHEREFORE, writ of preliminary injunction from
enforcement of the writ of possession on and ejectment
from the one-half share in the properties involved
belonging to Lourdes Yu Ago dated June 15, 1967 is
made permanent pending decision on the merits in Civil
Case No. Q-7986 and ordering respondent Court to
proceed with the trial of Civil Case No. Q-7986 on the
merits without unnecessary delay. No pronouncement
as to costs.
Failing to obtain reconsideration, the petitioners Castañeda and Henson
filed the present petition for review of the aforesaid decision.
1. We do not see how the doctrine that a court may not interfere with
the orders of a co-equal court can apply in the case at bar. The Court of
First Instance of Manila, which issued the writ of possession, ultimately
was not interfered with by its co-equal court, the Court of First Instance
of Quezon City as the latter lifted the restraining order it had previously
issued against the enforcement of the Manila court's writ of possession;
it is the Court of Appeals that enjoined, in part, the enforcement of the
writ.
2. Invoking Comilang vs. Buendia, et al.,1 where the wife was a party in
one case and the husband was a party in another case and a levy on
their conjugal properties was upheld, the petitioners would have
Lourdes Yu Ago similarly bound by the replevin judgment against her
husband for which their conjugal properties would be answerable. The
case invoked is not at par with the present case. In Comilang the actions
were admittedly instituted for the protection of the common interest of
the spouses; in the present case, the Agos deny that their conjugal
partnership benefited from the husband's business venture.
3. Relying upon Omnas vs. Rivera, 67 Phil. 419, the Court of Appeals
held that a writ of possession may not issue until the claim of a third
person to half-interest in the property is adversely determined, the said
appellate court assuming that Lourdes Yu Ago was a "stranger" or a
"third-party" to her husband. The assumption is of course obviously
wrong, for, besides living with her husband Pastor, she does not claim
ignorance of his business that failed, of the relevant cases in which he
got embroiled, and of the auction sale made by the sheriff of their
conjugal properties. Even then, the ruling in Omnas  is not that a writ of
possession may not issue until the claim of a third person is adversely
determined, but that the writ of possession being a complement of the
writ of execution, a judge with jurisdiction to issue the latter also has
jurisdiction to issue the former, unless in the interval between the
judicial sale and the issuance of the writ of possession, the rights of
third parties to the property sold have supervened. The ruling
in Omnas  is clearly inapplicable in the present case, for, here, there has
been no change in the ownership of the properties or of any interest
therein from the time the writ of execution was issued up to the time
writ of possession was issued, and even up to the present.
4. We agree with the trial court (then presided by Judge Lourdes P. San
Diego) that it is much too late in the day for the respondents Agos to
raise the question that part of the property is unleviable because it
belongs to Lourdes Yu Ago, considering that (1) a wife is normally privy
to her husband's activities; (2) the levy was made and the properties
advertised for auction sale in 1961; (3) she lives in the very properties in
question; (4) her husband had moved to stop the auction sale; (5) the
properties were sold at auction in 1963; (6) her husband had thrice
attempted to obtain a preliminary injunction to restrain the sheriff from
enforcing the writ of execution; (7) the sheriff executed the deed of final
sale on April 17, 1964 when Pastor failed to redeem; (8) Pastor had
impliedly admitted that the conjugal properties could be levied upon by
his pleas "to save his family house and lot" in his efforts to prevent
execution; and (9) it was only on May 2, 1964 when he and his wife filed
the complaint for annulment of the sheriff's sale upon the issue that the
wife's share in the properties cannot be levied upon on the ground that
she was not a party to the logging business and not a party to the
replevin suit. The spouses Ago had every opportunity to raise the issue
in the various proceedings hereinbefore discussed but did not; laches
now effectively bars them from raising it.
Laches, in a general sense, is failure or neglect, for an
unreasonable and unexplained length of time, to do
that which, by exercising due diligence, could or should
have been done earlier; it is negligence or omission to
assert a right within a reasonable time, warranting a
presumption that the party entitled to assert it either
has abandoned it or declined to assert it.2
5. The decision of the appellate court under review suffers from two
fatal infirmities.
(a) It enjoined the enforcement of the writ of possession to and
ejectment from the one-half share in the properties involved belonging
to Lourdes Yu Ago. This half-share is not in esse, but is merely an
inchoate interest, a mere expectancy, constituting neither legal nor
equitable estate, and will ripen into title when only upon liquidation and
settlement there appears to be assets of the community.3 The decision
sets at naught the well-settled rule that injunction does not issue to
protect a right not in esse and which may never arise.4
(b) The decision did not foresee the absurdity, or even the impossibility,
of its enforcement. The Ago spouses admittedly live together in the
same house5 which is conjugal property. By the Manila court's writ of
possession Pastor could be ousted from the house, but the decision
under review would prevent the ejectment of Lourdes. Now, which part
of the house would be vacated by Pastor and which part would Lourdes
continue to stay in? The absurdity does not stop here; the decision
would actually separate husband and wife, prevent them from living
together, and in effect divide their conjugal properties during coverture
and before the dissolution of the conjugal union.
6. Despite the pendency in the trial court of the complaint for the
annulment of the sheriff's sale (civil case Q-7986), elementary justice
demands that the petitioners, long denied the fruits of their victory in
the replevin suit, must now enjoy them, for, the respondents Agos,
abetted by their lawyer Jose M. Luison, have misused legal remedies
and prostituted the judicial process to thwart the satisfaction of the
judgment, to the extended prejudice of the petitioners. The
respondents, with the assistance of counsel, maneuvered for fourteen
(14) years to doggedly resist execution of the judgment thru manifold
tactics in and from one court to another (5 times in the Supreme Court).
We condemn the attitude of the respondents and their counsel who,
far from viewing courts as sanctuaries for those who
seek justice, have tried to use them to subvert the very
ends of justice.6
Forgetting his sacred mission as a sworn public servant and his exalted
position as an officer of the court, Atty. Luison has allowed himself to
become an instigator of controversy and a predator of conflict instead
of a mediator for concord and a conciliator for compromise, a virtuoso
of technicality in the conduct of litigation instead of a true exponent of
the primacy of truth and moral justice.
A counsel's assertiveness in espousing with candour and
honesty his client's cause must be encouraged and is to
be commended; what we do not and cannot
countenance is a lawyer's insistence despite the patent
futility of his client's position, as in the case at bar.
It is the duty of a counsel to advise his client, ordinarily
a layman to the intricacies and vagaries of the law, on
the merit or lack of merit of his case. If he finds that his
client's cause is defenseless, then it is his bounden duty
to advise the latter to acquiesce and submit, rather than
traverse the incontrovertible. A lawyer must resist the
whims and caprices of his client, and temper his clients
propensity to litigate. A lawyer's oath to uphold the
cause of justice is superior to his duty to his client; its
primacy is indisputable.7
7. In view of the private respondents' propensity to use the courts for
purposes other than to seek justice, and in order to obviate further
delay in the disposition of the case below which might again come up to
the appellate courts but only to fail in the end, we have motu
proprio  examined the record of civil case Q-7986 (the mother case of
the present case). We find that
(a) the complaint was filed on May 2, 1964 (more than 11 years ago) but
trial on the merits has not even started;
(b) after the defendants Castañedas had filed their answer with a
counterclaim, the plaintiffs Agos filed a supplemental complaint where
they impleaded new parties-defendants;
(c) after the admission of the supplemental complaint, the Agos filed a
motion to admit an amended supplemental complaint, which impleads
an additional new party-defendant (no action has yet been taken on this
motion);
(d) the defendants have not filed an answer to the admitted
supplemental complaint; and
(e) the last order of the Court of First Instance, dated April 20, 1974,
grants an extension to the suspension of time to file answer.
(Expediente, p. 815)
We also find that the alleged causes of action in the complaint,
supplemental complaint and amended supplemental complaint are all
untenable, for the reasons hereunder stated. The Complaint
Upon the  first cause of action, it is alleged that the sheriff levied upon
conjugal properties of the spouses Ago despite the fact that the
judgment to be satisfied was personal only to Pastor Ago, and the
business venture that he entered into, which resulted in the replevin
suit, did not redound to the benefit of the conjugal partnership. The
issue here, which is whether or not the wife's inchoate share in the
conjugal property is leviable, is the same issue that we have already
resolved, as barred by laches, in striking down the decision of the Court
of Appeals granting preliminary injunction, the dispositive portion of
which was herein-before quoted. This ruling applies as well to the first
cause of action of the complaint.
Upon the second cause of action, the Agos allege that on January 5,
1959 the Castañedas and the sheriff, pursuant to an alias  writ of
seizure, seized and took possession of certain machineries, depriving
the Agos of the use thereof, to their damage in the sum of P256,000 up
to May 5, 1964. This second cause of action fails to state a valid cause of
action for it fails to allege that the order of seizure is invalid or illegal.
It is averred as a third cause of action that the sheriff's sale of the
conjugal properties was irregular, illegal and unlawful because the
sheriff did not require the Castañeda spouses to pay or liquidate the
sum of P141,750 (the amount for which they bought the properties at
the auction sale) despite the fact that there was annotated at the back
of the certificates of title a mortgage of P75,000 in favor of the
Philippine National Bank; moreover, the sheriff sold the properties for
P141,750 despite the pendency of L-19718 where Pastor Ago contested
the amount of P99,877.08 out of the judgment value of P172,923.37 in
civil case 27251; and because of said acts, the Agos suffered
P174,877.08 in damages.
Anent this third cause of action, the sheriff was under no obligation to
require payment of the purchase price in the auction sale because
"when the purchaser is the judgment creditor, and no third-party claim
has been filed, he need not pay the amount of the bid if it does not
exceed the amount of his judgment." (Sec. 23, Rule 39, Rules of Court)
The annotated mortgage in favor of the PNB is the concern of the
vendees Castañedas but did not affect the sheriff's sale; the cancellation
of the annotation is of no moment to the Agoo.
Case L-19718 where Pastor Ago contested the sum of P99,877.08 out of
the amount of the judgment was dismissed by this Court on January 31,
1966.
This third cause of action, therefore, actually states no valid cause of
action and is moreover barred by prior judgment.
The  fourth cause of action  pertains to moral damages allegedly suffered
by the Agos on account of the acts complained of in the preceding
causes of action. As the fourth cause of action derives its life from the
preceding causes of action, which, as shown, are baseless, the said
fourth cause of action must necessarily fail.
The Counterclaim
As a counterclaim against the Agos, the Castañedas aver that the action
was unfounded and as a consequence of its filing they were compelled
to retain the services of counsel for not less than P7,500; that because
the Agos obtained a preliminary injunction enjoining the transfer of
titles and possession of the properties to the Castañedas, they were
unlawfully deprived of the use of the properties from April 17, 1964, the
value of such deprived use being 20% annually of their actual value; and
that the filing of the unfounded action besmirched their feelings, the
pecuniary worth of which is for the court to assess.
The Supplemental Complaint
Upon the  first cause of action, it is alleged that after the filing of the
complaint, the defendants, taking advantage of the dissolution of the
preliminary injunction, in conspiracy and with gross bad faith and
evident intent to cause damage to the plaintiffs, caused the registration
of the sheriff's final deed of sale; that, to cause more damage, the
defendants sold to their lawyer and his wife two of the parcels of land in
question; that the purchasers acquired the properties in bad faith; that
the defendants mortgaged the two other parcels to the Rizal
Commercial Banking Corporation while the defendants' lawyer and his
wife also mortgaged the parcels bought by them to the Rizal
Commercial Bank; and that the bank also acted in bad faith.
The second cause of action  consists of an allegation of additional For the same reason, the same holding applies to the remaining cause
damages caused by the defendants' bad faith in entering into the of action in the supplemental complaint and the amended supplemental
aforesaid agreements and transactions. complaint.

The Amended Supplemental Complaint
The amendment made pertains to the first cause of action of the
supplemental complaint, which is, the inclusion of a paragraph averring
that, still to cause damage and prejudice to the plaintiffs, Atty. & Mrs.
Juan Quijano, in bad faith sold the two parcels of land they had
previously bought to Eloy Ocampo who acquired them also in bad faith,
while Venancio Castañeda and Nicetas Henson in bad faith sold the two
other parcels to Juan Quijano (60%) and Eloy Ocampo (40%) who
acquired them in bad faith and with knowledge that the properties are
the subject of a pending litigation.
ACCORDINGLY, the decision of the Court of Appeals under review is set
aside. Civil case Q-7986 of the Court of First Instance of Rizal is ordered
dismissed, without prejudice to the re-filing of the petitioners'
counterclaim in a new and independent action. Treble costs are
assessed against the spouses Pastor Ago and Lourdes Yu Ago, which
shall be paid by their lawyer, Atty. Jose M. Luison. Let a copy of this
decision be made a part of the personal file of Atty. Luison in the
custody of the Clerk of Court.

Discussion on The Causes of Action

of The Supplemental Complaint And
The Amended Supplemental Complaint

Assuming hypothetically as true the allegations in the first cause of

action of the supplemental complaint and the amended supplemental
complaint, the validity of the cause of action would depend upon the
validity of the first cause of action of the original complaint, for, the
Agos would suffer no transgression upon their rights of ownership and
possession of the properties by reason of the agreements subsequently
entered into by the Castañedas and their lawyer if the sheriff's levy and
sale are valid. The reverse is also true: if the sheriff's levy and sale are
invalid on the ground that the conjugal properties could not be levied
upon, then the transactions would perhaps prejudice the Agos, but, we
have already indicated that the issue in the first cause of action of the
original complaint is barred by laches, and it must therefore follow that
the first cause of action of the supplemental complaint and the
amended supplemental complaint is also barred.
A.C. No. 5299               August 19, 2003
ATTY. ISMAEL G. KHAN, JR., Assistant Court Administrator and Chief,
Public Information Office, Complainant,
vs.
ATTY. RIZALINO T. SIMBILLO, Respondent.
x-----------------------x
G.R. No. 157053               August 19, 2003
ATTY. RIZALINO T. SIMBILLO, Petitioner,
vs.
IBP COMMISSION ON BAR DISCIPLINE and ATTY. ISMAEL G. KHAN, JR.,
in his capacity as Assistant Court Administrator and Chief, Public
Information Office, Respondents.
RESOLUTION
YNARES-SANTIAGO, J.:
This administrative complaint arose from a paid advertisement that
appeared in the July 5, 2000 issue of the newspaper, Philippine Daily
Inquirer, which reads: "ANNULMENT OF MARRIAGE Specialist 532-
4333/521-2667."1
Ms. Ma. Theresa B. Espeleta, a staff member of the Public Information
Office of the Supreme Court, called up the published telephone number
and pretended to be an interested party. She spoke to Mrs. Simbillo,
who claimed that her husband, Atty. Rizalino Simbillo, was an expert in
handling annulment cases and can guarantee a court decree within four
to six months, provided the case will not involve separation of property
or custody of children. Mrs. Simbillo also said that her husband charges
a fee of P48,000.00, half of which is payable at the time of filing of the
case and the other half after a decision thereon has been rendered.
Further research by the Office of the Court Administrator and the Public
Information Office revealed that similar advertisements were published
in the August 2 and 6, 2000 issues of the Manila Bulletin and August 5,
2000 issue of The Philippine Star.2
On September 1, 2000, Atty. Ismael G. Khan, Jr., in his capacity as
Assistant Court Administrator and Chief of the Public Information Office,
filed an administrative complaint against Atty. Rizalino T. Simbillo for
improper advertising and solicitation of his legal services, in violation of
Rule 2.03 and Rule 3.01 of the Code of Professional Responsibility and
Rule 138, Section 27 of the Rules of Court.3
In his answer, respondent admitted the acts imputed to him, but argued
that advertising and solicitation per se are not prohibited acts; that the
time has come to change our views about the prohibition on advertising
and solicitation; that the interest of the public is not served by the
absolute prohibition on lawyer advertising; that the Court can lift the
ban on lawyer advertising; and that the rationale behind the decades-
old prohibition should be abandoned. Thus, he prayed that he be
exonerated from all the charges against him and that the Court
promulgate a ruling that advertisement of legal services offered by a
lawyer is not contrary to law, public policy and public order as long as it
is dignified.4
The case was referred to the Integrated Bar of the Philippines for
investigation, report and recommendation.5 On June 29, 2002, the IBP
Commission on Bar Discipline passed Resolution No. XV-2002-
306,6 finding respondent guilty of violation of Rules 2.03 and 3.01 of the
Code of Professional Responsibility and Rule 138, Section 27 of the Rules
of Court, and suspended him from the practice of law for one (1) year
with the warning that a repetition of similar acts would be dealt with
more severely. The IBP Resolution was noted by this Court on
November 11, 2002.7
In the meantime, respondent filed an Urgent Motion for
Reconsideration,8 which was denied by the IBP in Resolution No. XV-
2002-606 dated October 19, 20029
Hence, the instant petition for certiorari, which was docketed as G.R.
No. 157053 entitled, "Atty. Rizalino T. Simbillo, Petitioner versus IBP
Commission on Bar Discipline, Atty. Ismael G. Khan, Jr., Asst. Court
Administrator and Chief, Public Information Office, Respondents." This
petition was consolidated with A.C. No. 5299 per the Court’s Resolution
dated March 4, 2003.
In a Resolution dated March 26, 2003, the parties were required to
manifest whether or not they were willing to submit the case for
resolution on the basis of the pleadings.10 Complainant filed his
Manifestation on April 25, 2003, stating that he is not submitting any
additional pleading or evidence and is submitting the case for its early
resolution on the basis of pleadings and records thereof. 11 Respondent,
on the other hand, filed a Supplemental Memorandum on June 20,
2003.
We agree with the IBP’s Resolutions Nos. XV-2002-306 and XV-2002-
606.
Rules 2.03 and 3.01 of the Code of Professional Responsibility read:
Rule 2.03. – A lawyer shall not do or permit to be done any act designed
primarily to solicit legal business.
Rule 3.01. – A lawyer shall not use or permit the use of any false,
fraudulent, misleading, deceptive, undignified, self-laudatory or unfair
statement or claim regarding his qualifications or legal services.
Rule 138, Section 27 of the Rules of Court states:
SEC. 27. Disbarment and suspension of attorneys by Supreme Court,
grounds therefor. – A member of the bar may be disbarred or
suspended from his office as attorney by the Supreme Court for any
deceit, malpractice or other gross misconduct in such office, grossly
immoral conduct or by reason of his conviction of a crime involving
moral turpitude, or for any violation of the oath which he is required to
take before the admission to practice, or for a willful disobedience
appearing as attorney for a party without authority to do so.
It has been repeatedly stressed that the practice of law is not a
business.12 It is a profession in which duty to public service, not money,
is the primary consideration. Lawyering is not primarily meant to be a
money-making venture, and law advocacy is not a capital that
necessarily yields profits.13 The gaining of a livelihood should be a
secondary consideration.14 The duty to public service and to the
administration of justice should be the primary consideration of
lawyers, who must subordinate their personal interests or what they
owe to themselves.15 The following elements distinguish the legal
profession from a business:
1. A duty of public service, of which the emolument is a by-
product, and in which one may attain the highest eminence
without making much money;
2. A relation as an "officer of the court" to the administration of
justice involving thorough sincerity, integrity and reliability;
3. A relation to clients in the highest degree of fiduciary;
4. A relation to colleagues at the bar characterized by candor,
fairness, and unwillingness to resort to current business
 methods of advertising and encroachment on their practice, or
dealing directly with their clients.16
There is no question that respondent committed the acts complained of.
He himself admits that he caused the publication of the advertisements.
While he professes repentance and begs for the Court’s indulgence, his
contrition rings hollow considering the fact that he advertised his legal
services again after he pleaded for compassion and after claiming that
he had no intention to violate the rules. Eight months after filing his
answer, he again advertised his legal services in the August 14, 2001
issue of the Buy & Sell Free Ads Newspaper. 17 Ten months later, he
caused the same advertisement to be published in the October 5, 2001
issue of Buy & Sell.18 Such acts of respondent are a deliberate and
contemptuous affront on the Court’s authority.
What adds to the gravity of respondent’s acts is that in advertising
himself as a self-styled "Annulment of Marriage Specialist," he wittingly
or unwittingly erodes and undermines not only the stability but also the
sanctity of an institution still considered sacrosanct despite the
contemporary climate of permissiveness in our society. Indeed, in
assuring prospective clients that an annulment may be obtained in four
to six months from the time of the filing of the case, 19 he in fact
encourages people, who might have otherwise been disinclined and
would have refrained from dissolving their marriage bonds, to do so.
Nonetheless, the solicitation of legal business is not altogether
proscribed. However, for solicitation to be proper, it must be
compatible with the dignity of the legal profession. If it is made in a
modest and decorous manner, it would bring no injury to the lawyer
and to the bar.20 Thus, the use of simple signs stating the name or names
of the lawyers, the office and residence address and fields of practice, as
well as advertisement in legal periodicals bearing the same brief data,
are permissible. Even the use of calling cards is now
acceptable.21 Publication in reputable law lists, in a manner consistent
with the standards of conduct imposed by the canon, of brief
biographical and informative data is likewise allowable. As explicitly
stated in Ulep v. Legal Clinic, Inc.:22
Such data must not be misleading and may include only a statement of
the lawyer’s name and the names of his professional associates;
addresses, telephone numbers, cable addresses; branches of law
practiced; date and place of birth and admission to the bar; schools
attended with dates of graduation, degrees and other educational
distinctions; public or quasi-public offices; posts of honor; legal
authorships; legal teaching positions; membership and offices in bar
associations and committees thereof, in legal and scientific societies and
legal fraternities; the fact of listings in other reputable law lists; the
names and addresses of references; and, with their written consent, the
names of clients regularly represented.
The law list must be a reputable law list published primarily for that
purpose; it cannot be a mere supplemental feature of a paper,
magazine, trade journal or periodical which is published principally for
other purposes. For that reason, a lawyer may not properly publish his
brief biographical and informative data in a daily paper, magazine,
trade journal or society program. Nor may a lawyer permit his name to
be published in a law list the conduct, management, or contents of
which are calculated or likely to deceive or injure the public or the bar,
or to lower dignity or standing of the profession.
The use of an ordinary simple professional card is also permitted. The
card may contain only a statement of his name, the name of the law
firm which he is connected with, address, telephone number and special
branch of law practiced. The publication of a simple announcement of
the opening of a law firm or of changes in the partnership, associates,
firm name or office address, being for the convenience of the
profession, is not objectionable. He may likewise have his name listed in
a telephone directory but not under a designation of special branch of
law. (emphasis and italics supplied)

WHEREFORE, in view of the foregoing, respondent RIZALINO T.

SIMBILLO is found GUILTY of violation of Rules 2.03 and 3.01 of the Code
of Professional Responsibility and Rule 138, Section 27 of the Rules of
Court. He is SUSPENDED from the practice of law for ONE (1) YEAR
effective upon receipt of this Resolution. He is likewise STERNLY
WARNED that a repetition of the same or similar offense will be dealt
with more severely.

Let copies of this Resolution be entered in his record as attorney and be

furnished the Integrated Bar of the Philippines and all courts in the
country for their information and guidance.

SO ORDERED.
 Echague, Isabela. He offers free consultation, and is willing to
help and serve the poor.)

The respondent further admits that he is the author of a letter

addressed to a lieutenant of barrio in his home municipality written in
Ilocano, which letter, in translation, reads as follows:
March 23, 1929
ECHAGUE, ISABELA, September 18, 1928
In re LUIS B. TAGORDA,
MY DEAR LIEUTENANT: I would like to inform you of the
Duran & Lim for respondent. approaching date for our induction into office as member of the
Attorney-General Jaranilla and Provincial Fiscal Jose for the Provincial Board, that is on the 16th of next month. Before my
Government. induction into office I should be very glad to hear your
suggestions or recommendations for the good of the province in
MALCOLM, J.: general and for your barrio in particular. You can come to my
house at any time here in Echague, to submit to me any kind of
The respondent, Luis B. Tagorda, a practising attorney and a member of suggestion or recommendation as you may desire.
the provincial board of Isabela, admits that previous to the last general
elections he made use of a card written in Spanish and Ilocano, which, in I also inform you that despite my membership in the Board I will
translation, reads as follows: have my residence here in Echague. I will attend the session of
the Board of Ilagan, but will come back home on the following
LUIS B. TAGORDA day here in Echague to live and serve with you as a lawyer and
Attorney notary public. Despite my election as member of the Provincial
Notary Public Board, I will exercise my legal profession as a lawyer and notary
CANDIDATE FOR THIRD MEMBER public. In case you cannot see me at home on any week day, I
Province of Isabela assure you that you can always find me there on every Sunday. I
also inform you that I will receive any work regarding
(NOTE. — As notary public, he can execute for you a deed of preparations of documents of contract of sales and affidavits to
sale for the purchase of land as required by the cadastral office; be sworn to before me as notary public even on Sundays.
can renew lost documents of your animals; can make your
application and final requisites for your homestead; and can I would like you all to be informed of this matter for the reason
execute any kind of affidavit. As a lawyer, he can help you that some people are in the belief that my residence as member
collect your loans although long overdue, as well as any of the Board will be in Ilagan and that I would then be
complaint for or against you. Come or write to him in his town, disqualified to exercise my profession as lawyer and as notary
 public. Such is not the case and I would make it clear that I am
free to exercise my profession as formerly and that I will have
my residence here in Echague.
I would request you kind favor to transmit this information to
your barrio people in any of your meetings or social gatherings
so that they may be informed of my desire to live and to serve
with you in my capacity as lawyer and notary public. If the
people in your locality have not as yet contracted the services of
other lawyers in connection with the registration of their land
titles, I would be willing to handle the work in court and would
charge only three pesos for every registration.
Yours respectfully,
(Sgd.) LUIS TAGORDA
Attorney
Notary Public.
The facts being conceded, it is next in order to write down the
applicable legal provisions. Section 21 of the Code of Civil Procedure as
originally conceived related to disbarments of members of the bar. In
1919 at the instigation of the Philippine Bar Association, said codal
section was amended by Act No. 2828 by adding at the end thereof the
following: "The practice of soliciting cases at law for the purpose of gain,
either personally or through paid agents or brokers, constitutes
malpractice."
The statute as amended conforms in principle to the Canons of
Professionals Ethics adopted by the American Bar Association in 1908
and by the Philippine Bar Association in 1917. Canons 27 and 28 of the
Code of Ethics provide:
27. ADVERTISING, DIRECT OR INDIRECT. — The most worthy and
effective advertisement possible, even for a young lawyer, and
especially with his brother lawyers, is the establishment of a
well-merited reputation for professional capacity and fidelity to
trust. This cannot be forced, but must be the outcome of
character and conduct. The publication or circulation of ordinary
simple business cards, being a matter of personal taste or local
custom, and sometimes of convenience, is not per se improper.
But solicitation of business by circulars or advertisements, or by
personal communications or interview not warranted by
personal relations, is unprofessional. It is equally unprofessional
to procure business by indirection through touters of any kind,
whether allied real estate firms or trust companies advertising
to secure the drawing of deeds or wills or offering retainers in
exchange for executorships or trusteeships to be influenced by
the lawyer. Indirect advertisement for business by furnishing or
inspiring newspaper comments concerning the manner of their
conduct, the magnitude of the interest involved, the importance
of the lawyer's position, and all other like self-laudation, defy
the traditions and lower the tone of our high calling, and are
intolerable.
28. STIRRING UP LITIGATION, DIRECTLY OR THROUGH AGENTS.
— It is unprofessional for a lawyer to volunteer advice to bring a
lawsuit, except in rare cases where ties of blood, relationship or
trust make it his duty to do so. Stirring up strife and litigation is
not only unprofessional, but it is indictable at common law. It is
disreputable to hunt up defects in titles or other causes of
action and inform thereof in order to the employed to bring
suit, or to breed litigation by seeking out those with claims for
personal injuries or those having any other grounds of action in
order to secure them as clients, or to employ agents or runners
for like purposes, or to pay or reward directly or indirectly,
those who bring or influence the bringing of such cases to his
 office, or to remunerate policemen, court or prison officials,
physicians, hospital attaches or others who may succeed, under
the guise of giving disinterested friendly advice, in influencing
the criminal, the sick and the injured, the ignorant or others, to
seek his professional services. A duty to the public and to the
profession devolves upon every member of the bar having
knowledge of such practices upon the part of any practitioner
immediately to inform thereof to the end that the offender may
be disbarred.
Common barratry consisting of frequently stirring up suits and quarrels
between individuals was a crime at the common law, and one of the
penalties for this offense when committed by an attorney was
disbarment. Statutes intended to reach the same evil have been
provided in a number of jurisdictions usually at the instance of the bar
itself, and have been upheld as constitutional. The reason behind
statutes of this type is not difficult to discover. The law is a profession
and not a business. The lawyer may not seek or obtain employment by
himself or through others for to do so would be unprofessional.
(State vs. Rossman [1909], 53 Wash., 1; 17 Ann. Cas., 625;
People vs. Mac Cabe [1893], 19 L. R. A., 231; 2 R. C. L., 1097.)
It becomes our duty to condemn in no uncertain terms the ugly practice
of solicitation of cases by lawyers. It is destructive of the honor of a
great profession. It lowers the standards of that profession. It works
against the confidence of the community in the integrity of the
members of the bar. It results in needless litigation and in incenting to
strife otherwise peacefully inclined citizens.
The solicitation of employment by an attorney is a ground for
disbarment or suspension. That should be distinctly understood.
Giving application of the law and the Canons of Ethics to the admitted
facts, the respondent stands convicted of having solicited cases in
defiance of the law and those canons. Accordingly, the only remaining
duty of the court is to fix upon the action which should here be taken.
The provincial fiscal of Isabela, with whom joined the representative of
the Attorney-General in the oral presentation of the case, suggests that
the respondent be only reprimanded. We think that our action should
go further than this if only to reflect our attitude toward cases of this
character of which unfortunately the respondent's is only one. The
commission of offenses of this nature would amply justify permanent
elimination from the bar. But as mitigating, circumstances working in
favor of the respondent there are, first, his intimation that he was
unaware of the impropriety of his acts, second, his youth and
inexperience at the bar, and, third, his promise not to commit a similar
mistake in the future. A modest period of suspension would seem to fit
the case of the erring attorney. But it should be distinctly understood
that this result is reached in view of the considerations which have
influenced the court to the relatively lenient in this particular instance
and should, therefore, not be taken as indicating that future convictions
of practice of this kind will not be dealt with by disbarment.
In view of all the circumstances of this case, the judgment of the court is
that the respondent Luis B. Tagorda be and is hereby suspended from
the practice as an attorney-at-law for the period of one month from
April 1, 1929,
 respondent’s services instead, in exchange for a loan of ₱50,000.
Complainant also attached "respondent’s" calling card:6

Front

NICOMEDES TOLENTINO

LAW OFFFICE
A.C. No. 6672               September 4, 2009
CONSULTANCY & MARITIME SERVICES
PEDRO L. LINSANGAN, Complainant, W/ FINANCIAL ASSISTANCE
vs.
ATTY. NICOMEDES TOLENTINO, Respondent. Fe Marie L. Labiano
Paralegal
RESOLUTION

CORONA, J.: Tel: 362-

1st MIJI Mansion, 2nd
7820
Flr. Rm. M-01
This is a complaint for disbarment1 filed by Pedro Linsangan of the Fax: (632)
6th Ave., cor M.H. Del
Linsangan Linsangan & Linsangan Law Office against Atty. Nicomedes 362-7821
Pilar
Tolentino for solicitation of clients and encroachment of professional Cel.:
Grace Park, Caloocan
services. (0926)
City
2701719
Complainant alleged that respondent, with the help of paralegal Fe
Marie Labiano, convinced his clients2 to transfer legal representation.
Respondent promised them financial assistance3 and expeditious Back
collection on their claims.4 To induce them to hire his services, he
persistently called them and sent them text messages.

To support his allegations, complainant presented the sworn

affidavit5 of James Gregorio attesting that Labiano tried to prevail upon SERVICES OFFERED:
him to sever his lawyer-client relations with complainant and utilize
 We adopt the findings of the IBP on the unethical conduct of
CONSULTATION AND ASSISTANCE respondent but we modify the recommended penalty.
TO OVERSEAS SEAMEN
REPATRIATED DUE TO ACCIDENT, The complaint before us is rooted on the alleged intrusion by
INJURY, ILLNESS, SICKNESS, DEATH respondent into complainant’s professional practice in violation of Rule
AND INSURANCE BENEFIT CLAIMS 8.02 of the CPR. And the means employed by respondent in furtherance
ABROAD. of the said misconduct themselves constituted distinct violations of
ethical rules.
1avvphi1
Canons of the CPR are rules of conduct all lawyers must adhere to,
including the manner by which a lawyer’s services are to be made
known. Thus, Canon 3 of the CPR provides:

(emphasis supplied) CANON 3 - A lawyer in making known his legal services shall use only
true, honest, fair, dignified and objective information or statement of
Hence, this complaint. facts.

Respondent, in his defense, denied knowing Labiano and authorizing
the printing and circulation of the said calling card.7
The complaint was referred to the Commission on Bar Discipline (CBD)
of the Integrated Bar of the Philippines (IBP) for investigation, report
and recommendation.8
Based on testimonial and documentary evidence, the CBD, in its report
and recommendation,9 found that respondent had encroached on the
professional practice of complainant, violating Rule 8.0210 and other
canons11 of the Code of Professional Responsibility (CPR). Moreover, he
contravened the rule against soliciting cases for gain, personally or
through paid agents or brokers as stated in Section 27, Rule 13812 of the
Rules of Court. Hence, the CBD recommended that respondent be
reprimanded with a stern warning that any repetition would merit a
heavier penalty.
Time and time again, lawyers are reminded that the practice of law is a
profession and not a business; lawyers should not advertise their talents
as merchants advertise their wares.13 To allow a lawyer to advertise his
talent or skill is to commercialize the practice of law, degrade the
profession in the public’s estimation and impair its ability to efficiently
render that high character of service to which every member of the bar
is called.14
Rule 2.03 of the CPR provides:
RULE 2.03. A lawyer shall not do or permit to be done any act designed
primarily to solicit legal business.
Hence, lawyers are prohibited from soliciting cases for the purpose of
gain, either personally or through paid agents or brokers. 15 Such
actuation constitutes malpractice, a ground for disbarment.16
Rule 2.03 should be read in connection with Rule 1.03 of the CPR which
provides:
RULE 1.03. A lawyer shall not, for any corrupt motive or interest,
encourage any suit or proceeding or delay any man’s cause.
This rule proscribes "ambulance chasing" (the solicitation of almost any
kind of legal business by an attorney, personally or through an agent in
order to gain employment)17 as a measure to protect the community
from barratry and champerty.18
Complainant presented substantial evidence19 (consisting of the sworn
statements of the very same persons coaxed by Labiano and referred to
respondent’s office) to prove that respondent indeed solicited legal
business as well as profited from referrals’ suits.
Although respondent initially denied knowing Labiano in his answer, he
later admitted it during the mandatory hearing.
Through Labiano’s actions, respondent’s law practice was benefited.
Hapless seamen were enticed to transfer representation on the strength
of Labiano’s word that respondent could produce a more favorable
result.
Based on the foregoing, respondent clearly solicited employment
violating Rule 2.03, and Rule 1.03 and Canon 3 of the CPR and Section
27, Rule 138 of the Rules of Court.1avvphi1
With regard to respondent’s violation of Rule 8.02 of the CPR, settled is
the rule that a lawyer should not steal another lawyer’s client nor
induce the latter to retain him by a promise of better service, good
result or reduced fees for his services.20 Again the Court notes that
respondent never denied having these seafarers in his client list nor
receiving benefits from Labiano’s "referrals." Furthermore, he never
denied Labiano’s connection to his office.21 Respondent committed an
unethical, predatory overstep into another’s legal practice. He cannot
escape liability under Rule 8.02 of the CPR.
Moreover, by engaging in a money-lending venture with his clients as
borrowers, respondent violated Rule 16.04:
Rule 16.04 – A lawyer shall not borrow money from his client unless the
client’s interests are fully protected by the nature of the case or by
independent advice. Neither shall a lawyer lend money to a client
except, when in the interest of justice, he has to advance necessary
expenses in a legal matter he is handling for the client.
The rule is that a lawyer shall not lend money to his client. The only
exception is, when in the interest of justice, he has to advance
necessary expenses (such as filing fees, stenographer’s fees for
transcript of stenographic notes, cash bond or premium for surety bond,
etc.) for a matter that he is handling for the client.
The rule is intended to safeguard the lawyer’s independence of mind so
that the free exercise of his judgment may not be adversely affected.22 It
seeks to ensure his undivided attention to the case he is handling as well
as his entire devotion and fidelity to the client’s cause. If the lawyer
lends money to the client in connection with the client’s case, the
lawyer in effect acquires an interest in the subject matter of the case or
an additional stake in its outcome.23 Either of these circumstances may
lead the lawyer to consider his own recovery rather than that of his
client, or to accept a settlement which may take care of his interest in
the verdict to the prejudice of the client in violation of his duty of
undivided fidelity to the client’s cause.24
As previously mentioned, any act of solicitation constitutes
malpractice25 which calls for the exercise of the Court’s disciplinary
powers. Violation of anti-solicitation statutes warrants serious sanctions
for initiating contact with a prospective client for the purpose of
obtaining employment.26 Thus, in this jurisdiction, we adhere to the rule
to protect the public from the Machiavellian machinations of
unscrupulous lawyers and to uphold the nobility of the legal profession.
Considering the myriad infractions of respondent (including violation of
the prohibition on lending money to clients), the sanction
recommended by the IBP, a mere reprimand, is a wimpy slap on the
wrist. The proposed penalty is grossly incommensurate to its findings.
A final word regarding the calling card presented in evidence by
petitioner. A lawyer’s best advertisement is a well-merited reputation
for professional capacity and fidelity to trust based on his character and
conduct.27 For this reason, lawyers are only allowed to announce their
services by publication in reputable law lists or use of simple
professional cards.
Professional calling cards may only contain the following details:
(a) lawyer’s name;
(b) name of the law firm with which he is connected;
(c) address;
(d) telephone number and
(e) special branch of law practiced.28
Labiano’s calling card contained the phrase "with financial assistance."
The phrase was clearly used to entice clients (who already had
representation) to change counsels with a promise of loans to finance
their legal actions. Money was dangled to lure clients away from their
original lawyers, thereby taking advantage of their financial distress and
emotional vulnerability. This crass commercialism degraded the
integrity of the bar and deserved no place in the legal profession.
However, in the absence of substantial evidence to prove his culpability,
the Court is not prepared to rule that respondent was personally and
directly responsible for the printing and distribution of Labiano’s calling
cards.
WHEREFORE, respondent Atty. Nicomedes Tolentino for violating Rules
1.03, 2.03, 8.02 and 16.04 and Canon 3 of the Code of Professional
Responsibility and Section 27, Rule 138 of the Rules of Court is
hereby SUSPENDED from the practice of law for a period of one
year effective immediately from receipt of this resolution. He
is STERNLY WARNED that a repetition of the same or similar acts in the
future shall be dealt with more severely.
Let a copy of this Resolution be made part of his records in the Office of
the Bar Confidant, Supreme Court of the Philippines, and be furnished
to the Integrated Bar of the Philippines and the Office of the Court
Administrator to be circulated to all courts.
SO ORDERED.

A.C. No. 6622               July 10, 2012
MIGUEL G. VILLATUYA, Complainant,
vs.
ATTY. BEDE S. TABALINGCOS, Respondent.
In this Complaint for disbarment filed on 06 December 2004 with the
Office or the Bar Confidant, complainant Manuel G. Villatuya
(complainant) charges Atty. Bcde S. 'L1halingcos (resrondent) with
unlawful solicitation of cases, violation of the ('ode or Professional
Responsibility for nonpayment of fees to complainant, and gross
immorality for marrying two other women while respondent’s first
marriage was subsisting.1
In a Resolution2 dated 26 January 2005, the Second Division of this Court
required respondent to file a Comment, which he did on 21 March
2005.3 The Complaint was referred to the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation within
sixty (60) days from receipt of the record.4
On 23 June 2005, the Commission on Bar Discipline of the IBP
(Commission) issued a Notice5 setting the mandatory conference of the
administrative case on 05 July 2005. During the conference,
complainant appeared, accompanied by his counsel and respondent.
They submitted for resolution three issues to be resolved by the
Commission as follows:
1. Whether respondent violated the Code of Professional
Responsibility by nonpayment of fees to complainant
2. Whether respondent violated the rule against unlawful
solicitation, and
3. Whether respondent is guilty of gross immoral conduct for
having married thrice.6
The Commission ordered the parties to submit their respective verified
Position Papers. Respondent filed his verified Position Paper,7 on 15 July
2005 while complainant submitted his on 01 August 2005.8
Complainant’s Accusations
Complainant averred that on February 2002, he was employed by
respondent as a financial consultant to assist the latter on technical and
financial matters in the latter’s numerous petitions for corporate
rehabilitation filed with different courts. Complainant claimed that they
had a verbal agreement whereby he would be entitled to ₱ 50,000 for
every Stay Order issued by the court in the cases they would handle, in
addition to ten percent (10%) of the fees paid by their clients. He
alleged that, from February to December 2002, respondent was able to
rake in millions of pesos from the corporate rehabilitation cases they
were working on together. Complainant also claimed that he was
entitled to the amount of ₱ 900,000 for the 18 Stay Orders issued by the
courts as a result of his work with respondent, and a total of ₱
4,539,000 from the fees paid by their clients.9 Complainant appended to
his Complaint several annexes supporting the computation of the fees
he believes are due him.
Complainant alleged that respondent engaged in unlawful solicitation of
cases in violation of Section 27 of the Code of Professional
Responsibility. Allegedly respondent set up two financial consultancy
firms, Jesi and Jane Management, Inc. and Christmel Business Link, Inc.,
and used them as fronts to advertise his legal services and solicit cases.
Complainant supported his allegations by attaching to his Position Paper
the Articles of Incorporation of Jesi and Jane,10 letter-proposals to clients
signed by respondent on various dates11 and proofs of payment made to
the latter by their clients.12
On the third charge of gross immorality, complainant accused
respondent of committing two counts of bigamy for having married two
other women while his first marriage was subsisting. He submitted a
Certification dated 13 July 2005 issued by the Office of the Civil Registrar
General-National Statistics Office (NSO) certifying that Bede S.
Tabalingcos, herein respondent, contracted marriage thrice: first, on 15
July 1980 with Pilar M. Lozano, which took place in Dasmarinas, Cavite;
the second time on 28 September 1987 with Ma. Rowena Garcia Piñon
in the City of Manila; and the third on 07 September 1989 with Mary
Jane Elgincolin Paraiso in Ermita, Manila.13
Respondent’s Defense
In his defense, respondent denied the charges against him. He asserted
that complainant was not an employee of his law firm – Tabalingcos and
Associates Law Office14 – but of Jesi and Jane Management, Inc., where
the former is a major stockholder.15 Respondent alleged that
complainant was unprofessional and incompetent in performing his job
as a financial consultant, resulting in the latter’s dismissal of many
rehabilitation plans they presented in their court cases.16 Respondent
also alleged that there was no verbal agreement between them
regarding the payment of fees and the sharing of professional fees paid
by his clients. He proffered documents showing that the salary of
complainant had been paid.17
As to the charge of unlawful solicitation, respondent denied committing
any. He contended that his law firm had an agreement with Jesi and
Jane Management, Inc., whereby the firm would handle the legal aspect
of the corporate rehabilitation case; and that the latter would attend to
the financial aspect of the case’ such as the preparation of the
rehabilitation plans to be presented in court. To support this contention,
respondent attached to his Position Paper a Joint Venture Agreement
dated 10 December 2005 entered into by Tabalingcos and Associates
Law Offices and Jesi and Jane Management, Inc.;18 and an Affidavit
executed by Leoncio Balena, Vice-President for Operations of the said
company.19
On the charge of gross immorality, respondent assailed the Affidavit
submitted by William Genesis, a dismissed messenger of Jesi and Jane
Management, Inc., as having no probative value, since it had been
retracted by the affiant himself.20 Respondent did not specifically
address the allegations regarding his alleged bigamous marriages with
two other women.
On 09 January 2006, complainant filed a Motion to Admit Copies of 3
Marriage Contracts.21 To the said Motion, he attached the certified true
copies of the Marriage Contracts referred to in the Certification issued
by the NSO.22 The appended Marriage Contracts matched the dates,
places and names of the contracting parties indicated in the earlier
submitted NSO Certification of the three marriages entered into by
respondent. The first marriage contract submitted was a marriage that
took place between respondent and Pilar M. Lozano in Dasmarinas,
Cavite, on 15 July 1980.23 The second marriage contract was between
respondent and Ma. Rowena G. Piñon, and it took place at the
Metropolitan Trial Court Compound of Manila on 28 September
1987.24 The third Marriage Contract referred to a marriage between
respondent and Mary Jane E. Paraiso, and it took place on 7 September
1989 in Ermita, Manila. In the second and third Marriage Contracts,
respondent was described as single under the entry for civil status.
On 16 January 2006, respondent submitted his Opposition to the
Motion to Admit filed by complainant, claiming that the document was
not marked during the mandatory conference or submitted during the
hearing of the case.25 Thus, respondent was supposedly deprived of the
opportunity to controvert those documents.26 He disclosed that criminal
cases for bigamy were filed against him by the complainant before the
Office of the City Prosecutor of Manila. Respondent further informed
the Commission that he had filed a Petition to Declare Null and Void the
Marriage Contract with Rowena Piñon at the Regional Trial Court (RTC)
of Biñan, Laguna, where it was docketed as Civil Case No. B-3270.27 He
also filed another Petition for Declaration of Nullity of Marriage Contract
with Pilar Lozano at the RTC-Calamba, where it was docketed as Civil
Case No. B-3271.28 In both petitions, he claimed that he had recently
discovered that there were Marriage Contracts in the records of the
NSO bearing his name and allegedly executed with Rowena Piñon and
Pilar Lozano on different occasions. He prayed for their annulment,
because they were purportedly null and void.
On 17 September 2007, in view of its reorganization, the Commission
scheduled a clarificatory hearing on 20 November 2007.29 While
complainant manifested to the Commission that he would not attend
the hearing,30 respondent manifested his willingness to attend and
moved for the suspension of the resolution of the administrative case
against the latter. Respondent cited two Petitions he had filed with the
RTC, Laguna, seeking the nullification of the Marriage Contracts he
discovered to be bearing his name.31
On 10 November 2007, complainant submitted to the Commission
duplicate original copies of two (2) Informations filed with the RTC of
Manila against respondent, entitled "People of the Philippines vs. Atty.
Bede S. Tabalingcos."32 The first criminal case, docketed as Criminal Case
No. 07-257125, was for bigamy for the marriage contracted by
respondent with Ma. Rowena Garcia Piñon while his marriage with Pilar
Lozano was still valid.33 The other one, docketed as Criminal Case No. 07-
257126, charged respondent with having committed bigamy for
contracting marriage with Mary Jane Elgincolin Paraiso while his
marriage with Pilar Lozano was still subsisting.34 Each of the Informations
recommended bail in the amount of P24,000 for his provisional liberty
as accused in the criminal cases.35
On 20 November 2007, only respondent attended the clarificatory
hearing. In the same proceeding, the Commission denied his Motion to
suspend the proceedings pending the outcome of the petitions for
nullification he had filed with the RTC–Laguna. Thus, the Commission
resolved that the administrative case against him be submitted for
resolution.36
IBP’s Report and Recommendation
On 27 February 2008, the Commission promulgated its Report and
Recommendation addressing the specific charges against
respondent.37 The first charge, for dishonesty for the nonpayment of
certain shares in the fees, was dismissed for lack of merit. The
Commission ruled that the charge should have been filed with the
proper courts since it was only empowered to determine respondent’s
administrative liability. On this matter, complainant failed to prove
dishonesty on the part of respondent.38 On the second charge, the
Commission found respondent to have violated the rule on the
solicitation of client for having advertised his legal services and
unlawfully solicited cases. It recommended that he be reprimanded for
the violation. It failed, though, to point out exactly the specific provision
he violated.39
As for the third charge, the Commission found respondent to be guilty
of gross immorality for violating Rules 1.01 and 7.03 of the Code of
Professional Responsibility and Section 27 of Rule 138 of the Rules of
Court. It found that complainant was able to prove through
documentary evidence that respondent committed bigamy twice by
marrying two other women while the latter’s first marriage was
subsisting.40 Due to the gravity of the acts of respondent, the
Commission recommended that he be disbarred, and that his name be
stricken off the roll of attorneys.41
On 15 April 2008, the IBP Board of Governors, through its Resolution
No. XVIII-2008-154, adopted and approved the Report and
Recommendation of the Investigating Commissioner.42 On 01 August
2008, respondent filed a Motion for Reconsideration, arguing that the
recommendation to disbar him was premature. He contends that the
Commission should have suspended the disbarment proceedings
pending the resolution of the separate cases he had filed for the
annulment of the marriage contracts bearing his name as having
entered into those contracts with other women. He further contends
that the evidence proffered by complainant to establish that the latter
committed bigamy was not substantial to merit the punishment of
disbarment. Thus, respondent moved for the reconsideration of the
resolution to disbar him and likewise moved to archive the
administrative proceedings pending the outcome of the Petitions he
separately filed with the RTC of Laguna for the annulment of Marriage
Contracts.43
On 26 June 2011, the IBP Board of Governors denied the Motions for
Reconsideration and affirmed their Resolution dated 15 April 2008
recommending respondent’s disbarment.44
The Court’s Ruling
The Court affirms the recommendations of the IBP.
First Charge:
Dishonesty for nonpayment of share in the fees
While we affirm the IBP’s dismissal of the first charge against
respondent, we do not concur with the rationale behind it.
The first charge of complainant against respondent for the nonpayment
of the former’s share in the fees, if proven to be true is based on an
agreement that is violative of Rule 9.0245 of the Code of Professional
Responsibility. A lawyer is proscribed by the Code to divide or agree to
divide the fees for legal services rendered with a person not licensed to
practice law. Based on the allegations, respondent had agreed to share
with complainant the legal fees paid by clients that complainant
solicited for the respondent. Complainant, however, failed to proffer
convincing evidence to prove the existence of that agreement.
We ruled in Tan Tek Beng v. David46 that an agreement between a
lawyer and a layperson to share the fees collected from clients secured
by the layperson is null and void, and that the lawyer involved may be
disciplined for unethical conduct. Considering that complainant’s
allegations in this case had not been proven, the IBP correctly dismissed
the charge against respondent on this matter.
Second Charge:
Unlawful solicitation of clients
Complainant charged respondent with unlawfully soliciting clients and
advertising legal services through various business entities. Complainant
submitted documentary evidence to prove that Jesi & Jane
Management Inc. and Christmel Business Link, Inc. were owned and
used as fronts by respondent to advertise the latter’s legal services and
to solicit clients. In its Report, the IBP established the truth of these
allegations and ruled that respondent had violated the rule on the
solicitation of clients, but it failed to point out the specific provision that
was breached.
A review of the records reveals that respondent indeed used the
business entities mentioned in the report to solicit clients and to
advertise his legal services, purporting to be specialized in corporate
rehabilitation cases. Based on the facts of the case, he violated Rule
2.0347 of the Code, which prohibits lawyers from soliciting cases for the
purpose of profit.
A lawyer is not prohibited from engaging in business or other lawful
occupation. Impropriety arises, though, when the business is of such a
nature or is conducted in such a manner as to be inconsistent with the
lawyer’s duties as a member of the bar. This inconsistency arises when
the business is one that can readily lend itself to the procurement of
professional employment for the lawyer; or that can be used as a cloak
for indirect solicitation on the lawyer’s behalf; or is of a nature that, if
handled by a lawyer, would be regarded as the practice of law.48
It is clear from the documentary evidence submitted by complainant
that Jesi & Jane Management, Inc., which purports to be a financial and
legal consultant, was indeed a vehicle used by respondent as a means to
procure professional employment; specifically for corporate
rehabilitation cases. Annex "C"49 of the Complaint is a letterhead of Jesi
& Jane
Management, Inc., which proposed an agreement for the engagement
of legal services. The letter clearly states that, should the prospective
client agree to the proposed fees, respondent would render legal
services related to the former’s loan obligation with a bank. This
circumvention is considered objectionable and violates the Code,
because the letter is signed by respondent as President of Jesi & Jane
Management, Inc., and not as partner or associate of a law firm.
Rule 15.0850 of the Code mandates that the lawyer is mandated to
inform the client whether the former is acting as a lawyer or in another
capacity. This duty is a must in those occupations related to the practice
of law. The reason is that certain ethical considerations governing the
attorney-client relationship may be operative in one and not in the
other.51 In this case, it is confusing for the client if it is not clear whether
respondent is offering consultancy or legal services.
Considering, however, that complainant has not proven the degree of
prevalence of this practice by respondent, we affirm the
recommendation to reprimand the latter for violating Rules 2.03 and
15.08 of the Code.
Third Charge:
Bigamy
The third charge that respondent committed bigamy twice is a serious
accusation. To substantiate this allegation, complainant submitted NSO-
certified copies of the Marriage Contracts entered into by respondent
with three (3) different women. The latter objected to the introduction
of these documents, claiming that they were submitted after the
administrative case had been submitted for resolution, thus giving him
no opportunity to controvert them.52 We are not persuaded by his
argument.
We have consistently held that a disbarment case is sui generis. Its focus
is on the qualification and fitness of a lawyer to continue membership in
the bar and not the procedural technicalities in filing the case. Thus, we
explained in Garrido v. Garrido:53
Laws dealing with double jeopardy or with procedure — such as the
verification of pleadings and prejudicial questions, or in this case,
prescription of offenses or the filing of affidavits of desistance by the
complainant — do not apply in the determination of a lawyer's
qualifications and fitness for membership in the Bar. We have so ruled
in the past and we see no reason to depart from this ruling. First,
admission to the practice of law is a component of the administration of
justice and is a matter of public interest because it involves service to
the public. The admission qualifications are also qualifications for the
continued enjoyment of the privilege to practice law. Second, lack of
qualifications or the violation of the standards for the practice of law,
like criminal cases, is a matter of public concern that the State may
inquire into through this Court.
In disbarment proceedings, the burden of proof rests upon the
complainant.1âwphi1 For the court to exercise its disciplinary powers,
the case against the respondent must be established by convincing and
satisfactory proof.54 In this case, complainant submitted NSO-certified
true copies to prove that respondent entered into two marriages while
the latter’s first marriage was still subsisting. While respondent denied
entering into the second and the third marriages, he resorted to vague
assertions tantamount to a negative pregnant. He did not dispute the
authenticity of the NSO documents, but denied that he contracted those
two other marriages. He submitted copies of the two Petitions he had
filed separately with the RTC of Laguna – one in Biñan and the other in
Calamba – to declare the second and the third Marriage Contracts null
and void.55
We find him guilty of gross immorality under the Code.
We cannot give credence to the defense proffered by respondent. He
has not disputed the authenticity or impugned the genuineness of the
NSO-certified copies of the Marriage Contracts presented by
complainant to prove the former’s marriages to two other women aside
from his wife. For purposes of this disbarment proceeding, these
Marriage Contracts bearing the name of respondent are competent and
convincing evidence proving that he committed bigamy, which renders
him unfit to continue as a member of the bar. The documents were
certified by the NSO, which is the official repository of civil registry
records pertaining to the birth, marriage and death of a person. Having
been issued by a government agency, the NSO certification is accorded
much evidentiary weight and carries with it a presumption of regularity.
In this case, respondent has not presented any competent evidence to
rebut those documents.
According to the respondent, after the discovery of the second and the
third marriages, he filed civil actions to annul the Marriage Contracts.
We perused the attached Petitions for Annulment and found that his
allegations therein treated the second and the third marriage contracts
as ordinary agreements, rather than as special contracts contemplated
under the then Civil Code provisions on marriage. He did not invoke any
grounds in the Civil Code provisions on marriage, prior to its
amendment by the Family Code. Respondent’s regard for marriage
contracts as ordinary agreements indicates either his wanton disregard
of the sanctity of marriage or his gross ignorance of the law on what
course of action to take to annul a marriage under the old Civil Code
provisions.
What has been clearly established here is the fact that respondent
entered into marriage twice while his first marriage was still subsisting.
In Bustamante-Alejandro v. Alejandro,56 we held thus:
We have in a number of cases disciplined members of the Bar whom we
found guilty of misconduct which demonstrated a lack of that good
moral character required of them not only as a condition precedent for 3. Atty. Bede S. Tabalingcos is DISBARRED for engaging in
their admission to the Bar but, likewise, for their continued membership bigamy, a grossly immoral conduct.
therein. No distinction has been made as to whether the misconduct
was committed in the lawyer’s professional capacity or in his private life. Let a copy of this Decision be attached to the personal records of Atty.
This is because a lawyer may not divide his personality so as to be an Bede S. Tabalingcos in the Office of the Bar Confidant, and another copy
attorney at one time and a mere citizen at another. He is expected to be furnished to the Integrated Bar of the Philippines.
competent, honorable and reliable at all times since he who cannot
apply and abide by the laws in his private affairs, can hardly be expected The Clerk of Court is directed to strike out the name of Bede S.
to do so in his professional dealings nor lead others in doing so. Tabalingcos from the Roll of Attorneys.
Professional honesty and honor are not to be expected as the
accompaniment of dishonesty and dishonor in other relations. The SO ORDERED.
administration of justice, in which the lawyer plays an important role
being an officer of the court, demands a high degree of intellectual and
moral competency on his part so that the courts and clients may rightly
repose confidence in him.

Respondent exhibited a deplorable lack of that degree of morality

required of him as a member of the bar. He made a mockery of
marriage, a sacred institution demanding respect and dignity.57 His acts
of committing bigamy twice constituted grossly immoral conduct and
are grounds for disbarment under Section 27, Rule 138 of the Revised
Rules of Court.58

Thus, we adopt the recommendation of the IBP to disbar respondent

and order that his name be stricken from the Roll of Attorneys.

WHEREFORE, this Court resolves the following charges against Atty.

Bede S. Tabalingcos as follows:

1. The charge of dishonesty is DISMISSED for lack of merit.

2. Respondent is REPRIMANDED for acts of illegal advertisement

and solicitation.
 BUENA VISTA PROPERTIES, INC., Complainant
vs.
ATTY. AMADO B. DELORIA, Respondent

The Facts

On May 7, 1992, BPI, a corporation duly organized and existing under

Philippine laws, entered into a Joint Venture Agreement2 (JVA) with La
Savoie Development Corporation3 (LSDC), represented by Atty. Deloria,
for the development of a parcel of land into a mixed-use commercial
and residential subdivision and for the sale of the subdivided lots. BPI
alleged that the plans, applications, and other documents of LSDC
relative thereto were submitted to, processed, and evaluated by the
Housing and Land Use Regulatory Board (HLURB) at the time when Atty.
Deloria was one of its Commissioners.4

LSDC then sold the subdivided lots, albeit at very low prices. Further,
LSDC misrepresented5 itself as the owner of the lots, prompting BPI to
demand that LSDC refrain from further selling them. However, LSDC
disregarded BPI's demands;6 hence, the latter filed a complaint7 against
the former for termination of contract, recovery of property and
damages, with prayer for the issuance of a temporary restraining order
and a writ of preliminary mandatory injunction (civil case) before the
Regional Trial Court (RTC) of Quezon City. With Atty. Deloria as counsel,
LSDC filed an answer with counterclaim and a prayer for the issuance of
a writ of preliminary mandatory injunction8 to direct BPI to execute the
deeds of absolute sale and release the corresponding titles to the lot
buyers. However, LSDC's application for a writ of preliminary mandatory
injunction was denied.9

Thereafter, the lot buyers demanded LSDC to release the titles covering
A.C. No. 12160
the subdivided lots; in turn, LSDC demanded the same from BPI.
However, BPI refused, contending that it was not a party to the
transactions between LSDC and the lot buyers, and that LSDC sold the
lots despite its objections. Eventually, the RTC also denied LSDC's prayer
for a writ of mandatory injunction.10
Subsequently, LSDC, through Atty. Deloria, filed a complaint11 against
BPI before the BLURB to compel the latter to execute the deeds of
absolute sale and deliver the titles of the subdivided lots, the same
reliefs prayed for in LSDC's answer with counterclaim in the civil
case. Meanwhile, BPI further alleged that in order to shield LSDC from
liability, Atty. Deloria convinced the lot buyers that the former was
responsible for the non-delivery of their titles. Thus, several lot buyers
appointed12 him as counsel to file cases on their behalf against BPI
before the HLURB.13
In March 2004, however, lot buyers Spouses Corazon Flores (Corazon)
and Roberto Flores (collectively, Spouses Flores), through their attorney-
in-fact Mariano L. Celis,14 filed a criminal case for estafa15 against LSDC
President Jeanne G. Menguito (Menguito), premised on the latter's
misrepresentation that she was the owner of the lot that Corazon
purchased. An Information16 was later filed before the Metropolitan
Trial Court of Makati City.17
Thereafter, Atty. Deloria filed several complaints18 for delivery of title
against BPI before the HLURB on behalf of the lot buyers, which
included the case entitled "Marlon Bautista, Luisito V. lngalia, and
Wilfredo Latuja, represented by Atty. Amado B. Deloria, Attorney-in-Fact
v. Buenavista Properties, Inc. and/or Josephine Conde,
President" docketed as HLURB Case No. REM-C-03-8-1171.19
On September 6, 2005, Corazon executed a Sinumpaang
Salaysay20 stating, among others, that she was induced by a "fixer" to
engage the services of Atty. Deloria as her lawyer for the purpose of
filing a case against BPI before the HLURB. She also attested that
although Atty. Deloria represented her before the HLURB, he neglected
his duties as counsel by refusing to communicate with her and failing to
file the required pleadings.21
Finally, BPI alleged22 that Atty. Deloria made it appear that a certain
Madelyn Hesola (Hesola) was the secretary of the President of BPI and
in such capacity, received the HLURB's Notice of Decision23 of a
judgment against BPI, by reason of which Atty. Deloria moved for the
issuance of a writ of execution.24 However, BPI denied that Hesola was
its employee, much more the secretary of its President. It likewise
alleged that Atty. Deloria misquoted various provisions in the JVA in a
position paper he filed before the HLURB.25
In view of the foregoing, BPI prayed for the suspension or disbarment of
Atty. Deloria for committing multiple violations of the CPR, to
wit: (a) Rule 1.03,26 for encouraging the lot buyers to file cases against
BPI in order to deflect the charges that the lot buyers have against LSDC;
(b) Rules 2.0327 and 8.0228 for convincing the Spouses Flores to
withdraw the estafa case against Menguito and to appoint him as
lawyer to file a case against BPI instead; (c) Rules
1.0129 and 10.0230 when he resorted to lies with respect to the
employment of Hesola and for misquoting the JV A in his
pleadings; (d) Rule 1.01 for inducing the lot buyers to file cases against
BPI; (e) Rules 15.0131 and 15.0332 for acting as counsel for LSDC and the
lot buyers at the same time; (f) Rule 12.0233 for having filed two (2)
cases involving the same parties, issues, facts, and reliefs; (g) Canon
1734 and Rules 18.0335 and 18.04,36 Canon 18,37 for failing to file the
necessary pleadings on behalf of Corazon in the HLURB case;
and (h) Rule 6.0338 for acting as counsel for LSDC after leaving the
government service as HL URB Commissioner.39
In his defense,40 Atty. Deloria argued that while the plans of the
subdivision project of BPI were submitted to the HLURB in 1992 for
evaluation, he wielded no influence to approve the said plans because
the evaluation and approval of subdivision plans were vested with the
Commissioner for Planning. He added that being only one of the four (4)
commissioners of the HLURB, which always acted as a collegial body, he
had very limited functions. Moreover, he denied that he resorted to
machinations and "hoodwinked" the lot buyers into engaging him as
their lawyer, explaining that he only wanted to help the fully-paid lot
buyers to obtain their tit1es.41
Atty. Deloria likewise claimed that it was the staff of LSDC who served
the Notice of Decision issued by the HLURB to Hesola. Further, he
asserted that Section 7 (b) of Republic Act (RA) No. 6713,42 otherwise
known as the "Code of Conduct and Ethical Standards for Public Officials
and Employees," which proscribed his appearance before the HLURB
within one (1) year from resignation, retirement, or separation from
public office, no longer applies to him, considering that he has retired as
HL URB Commissioner thirteen (13) years prior to becoming LSDC's
counsel.43
Finally, he averred that: (a) being an artificial person incapable of
experiencing physical suffering or mental anguish, BPI cannot institute
this action; (b) assuming without admitting that it can do so, no
resolution of the Board of Directors of BPI was passed authorizing the
filing of this complaint; (c) LSDC has the authority, under the JVA, to sell
lots in the subdivision project; (d) the right to the delivery of the title of
a buyer who has fully paid cannot be affected by any misunderstanding
or litigation between the parties to a JV A; and (e) the complaint is
tainted with bad faith, considering that two (2) days before the filing of
the present complaint, the President of BPI informed him of an
imminent disbarment case should he fail to cause the withdrawal of the
lot buyers' complaints against BPI.44
The IBP's Report and Recommendation
In a Report and Recommendation45 dated July 20, 2016, the IBP
Investigating Commissioner found Atty. Deloria administratively liable,
and accordingly, recommended that he be meted the penalty of
suspension from the practice of law for two (2) years.46
The Investigating Commissioner found that Atty. Deloria did not violate
Rules 1.03, 2.03, and 8.02 of the CPR on the ground of insufficiency of
evidence. Likewise, Atty. Deloria was found not guilty of violating Rules
1.01 and 10.02 of the CPR as BPI failed to show that he had a role in the
wrongful designation of Hesola or that he knowingly misquoted the JVA
in a position paper he filed with the HLURB.47
However, the Investigating Commissioner found Atty. Deloria guilty of
violating Rules 15.01 and 15.03 of the CPR for representing conflicting
interests. Records show that on March 30, 2004, Corazon filed
the estafa case against Menguito, President of LSDC, whose lawyer was
Atty. Deloria. The basis for the estafa charges was Menguito's
misrepresentation that she was the owner of the lot Corazon
purchased. Thereafter, or on June 15, 2004, Atty. Deloria, on behalf of
Corazon, filed a complaint for delivery of title with the HLURB against
BPI with LSDC as third-party respondent. Thus, Atty. Deloria
simultaneously represented LSDC President Menguito and Corazon, a
lot buyer, who had conflicting interests. Likewise, he represented
several lot buyers as complainants in the HLURB case against BPI while
also representing LSDC as third-party respondent therein. The
Investigating Commissioner noted that Atty. Deloria failed to show that
he obtained the written consent of the parties concerned.48
Similarly, the Investigating Commissioner found Atty. Deloria liable for
violating Rule 12.02 of the CPR on forum shopping, having prayed in its
answer with counterclaim with prayer for the issuance of a writ of
preliminary mandatory injunction in the civil case before the RTC that
BPI be directed to execute the deeds of absolute sale and deliver the
titles covering the subdivided lots, and thereafter, when the prayer for
injunction was denied, filed a complaint before the HLURB praying for
the same reliefs. In fact, the HLURB eventually dismissed the complaint
filed before it on the ground of litis pendentia, finding the presence of
all the elements therefore.49
Finally, Atty. Deloria was also found to have violated Canon 17 and Rules
18.03 and 18.04, Canon 18 of the CPR for his failure to file the necessary
pleadings for his client and to inform and communicate with her, as
attested to by Corazon in her Sinumpaang Salaysay.50
As regards the alleged violation of Rule 6.03 of the CPR, the
Investigating Commissioner found no violation thereof, as the
proscription under Section 7 (b) of RA 6713 prohibiting a former public
officer from engaging in certain transactions applies only for a period of
one (1) year after his/her resignation, retirement, or separation from
office. As Atty. Deloria was engaged as LSDC's counsel thirteen (13)
years after his retirement from HLURB, the prohibition no longer applies
to him. Moreover, BPI failed to prove that Atty. Deloria intervened in
any of the transactions where LSDC was involved during his stint as
HLURB Commissioner.51
Parenthetically, as regards BPI's standing to institute the present case,
the Investigating Commissioner noted that a corporate entity may
institute disbarment proceedings,52 as in this case.
In a Resolution53 dated June 17, 2017, the IBP Board of Governors
adopted the aforesaid report and recommendation.54
The Issue Before the Court
The essential issue in this case is whether or not grounds exist to hold
Atty. Deloria administratively liable for any violations of the CPR.
The Court's Ruling
After a punctilious review of the records, the Court concurs with the
conclusion of the IBP Board of Governors that Atty. Deloria should be
held administratively liable in this case.
Atty. Deloria represented
conflicting interests
Rules 15.01 and 15.03, Canon 15 of the CPR state:
CANON15-xxx
Rule 15.01 - A lawyer, in conferring with a prospective client, shall
ascertain as soon as practicable whether the matter would involve a
conflict with another client or his own interest, and if so, shall forthwith
inform the prospective client.
xxxx
Rule 15.03 - A lawyer shall not represent conflicting interests except by
written consent of all concerned given after a full disclosure of the facts.
In Hornilla v. Salunat,55 the Court explained the test to determine
conflict of interest, to wit:
There is conflict of interest when a lawyer represents inconsistent
interests of two or more opposing parties. The test is "whether or not in
behalf of one client, it is the lawyer's duty to fight for an issue or claim,
but it is his duty to oppose it for the other client. In brief, if he argues for
one client, this argument will be opposed by him when he argues for the
other client." This rule covers not only cases in which confidential
communications have been confided, but also those in which no
confidence has been bestowed or will be used. Also, there is conflict of
interest if the acceptance of the new retainer will require the attorney
to perform an act which will injuriously affect his first client in any
matter in which he represents him and also whether he will be called
upon in his new relation to use against his first client any knowledge
acquired through their connection. Another test of the inconsistency of
interests is whether the acceptance of a new relation will prevent an
attorney from the full discharge of his duty of undivided fidelity and
loyalty to his client or invite suspicion of unfaithfulness or double-
dealing in the performance thereof.56 <<
"The rule against conflict of interest also 'prohibits a lawyer from
representing new clients whose interests oppose those of a former
client in any manner, whether or not they are parties in the same action
or on totally unrelated cases,' since the representation of opposing
clients, even in unrelated cases, 'is tantamount to representing
conflicting interests or, at the very least, invites suspicion of double-
dealing which the Court cannot allow."'57 Moreover, the requirement
under Rule 15.03 is quite clear. A lawyer must secure the written
consent of all concerned parties after a full disclosure of the
facts;58 failure to do so would subject him to disciplinary action 59 as he
would be found guilty of representing conflicting interests.60
In this case, Atty. Deloria represented Menguito, the President of LSDC,
in the criminal case for estafa that the Spouses Flores filed against
her.1awp++i1 Subsequently, however, Atty. Deloria filed a
complaint61 for delivery of title against BPI on behalf of Corazon before
the HLURB. As such, Atty. Deloria simultaneously represented Menguito
and Corazon despite their conflicting interests, considering that
Corazon's estafa case against Menguito was premised on the latter's
and LSDC's alleged misrepresentation62 of ownership over the lots sold
and LSDC's eventual failure to deliver the title.63 It must be stressed that
it was LSDC that obligated itself to ensure the transfer of the ownership
of the purchased lot to Corazon, a lot buyer, pursuant to the Contract to
Sell64 executed between them. Thus, Atty. Deloria's simultaneous
representation of Menguito and Corazon sans their written consent
after a full disclosure of the facts violated the rules on conflict of
interest.
Moreover, he represented several lot buyers as complainants in HLURB
Case No. REM-C-03-8-1171 against BPI while also representing LSDC as
third-party respondent therein. In fact, he even filed a Position
Paper65 on behalf of both the complainants therein and LSDC. Such dual
representation without the written consent of the parties again
constitutes a violation of Rules 15.01 and 15.03, Canon 15 of the CPR,
warranting disciplinary action therefor.
Atty. Deloria committed
forum shopping
Likewise, Atty. Deloria violated Rule 12.02, Canon 12 of the CPR on
forum shopping, which states:
CANON12-xxx
xxxx
Rule 12.02 - A lawyer shall not file multiple actions arising from the
same cause.
Forum shopping exists when, as a result of an adverse decision in one
forum, or in anticipation thereof, a party seeks a favorable opinion in
another forum through means other than appeal or certiorari.66 There is
forum shopping when the elements of litis pendentia are present or
where a final judgment in one case will amount to res judicata in
another. They are as follows: (a) identity of parties, or at least such
parties that represent the same interests in both actions; (b) identity of
rights or causes of action; and (c) identity of relief sought.67
In the civil case before the RTC, Atty. Deloria, on behalf of LSDC, filed an
answer with counterclaim and prayed for the issuance of a writ of
preliminary mandatory injunction68 to direct BPI to execute the deeds of
absolute sale and release the titles covering the purchased subdivided
lots. Notwithstanding the RTC's denial of LSDC's application for a writ of
preliminary mandatory injunction in an Order69 dated August 11, 1998,
as well as the pendency of the main case therein, Atty. Deloria
nonetheless lodged a complaint70 before the HLURB praying for the
same relief as that pleaded for in its answer with counterclaim - to
compel BPI to execute deeds of absolute sale and deliver the titles over
the subdivided lots. Clearly, the elements of litis pendentia are present,
considering: (a) the identity of parties, i.e., BPI and LSDC; (b) identity of
rights or causes of action, i.e., BPI and LSDC being parties to the JV A,
from which sprang their respective rights and obligations; and (c)
identity of reliefs sought, i.e., to compel BPI to execute the deeds of
absolute sale and deliver the titles of the purchased lots. In fact, the
HLURB in its Decision71 dated September 27, 2000 dismissed LSDC's
complaint based on the same ground.
Atty. Deloria neglected his
duties to his client
Finally, Atty. Deloria violated Canon 17 and Rules 18.03 and 18.04,
Canon 18 of the CPR, which state:
CANON 17 - A lawyer owes fidelity to the cause of his client and he shall
be mindful of the trust and confidence reposed in him.
CANON 18 - A lawyer shall serve his client with competence and
diligence.
xxxx
Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him,
and his negligence in connection therewith shall render him liable.
Rule 18.04 - A lawyer shall keep the client informed of the status of his
case and shall respond within a reasonable time to the client's request
for information.
In this case, Corazon attested to the fact that Atty, Deloria failed to
communicate with and inform her, as his client, about her complaint
against BPI before the HLURB. Likewise, Atty. Deloria failed to file the
required position paper and draft decision before the HLURB. As such,
he neglected the legal matters entrusted to him and failed to serve his
client with competence and diligence, for which he must be clearly held
administratively liable.
Penalty imposed upon
Atty. Deloria
In Quiambao v. Bamba,72 the Court explained that the penalty solely for
a lawyer's representation of conflicting interests on the basis of
jurisprudence is suspension from the practice of law for one (1) to three
(3) years.73 On the other hand, in the case of Williams v. Enriquez,74 the
Court imposed the penalty of suspension from the practice of law for six
(6) months upon the respondent for violating the rule on· forum
shopping. Finally, in Pilapil v. Carillo,75 the Court suspended a lawyer
from the practice of law for six (6) months after finding that he had
failed to file a petition for certiorari from the adverse decision rendered
in the case of his client despite the latter's repeated follow-ups. The
Court imposed a similar penalty in Quiachon v. Ramos76 for respondent's
failure to keep the client informed of the status of the case and to
promote the client's cause, thereby neglecting the case entrusted to
him.
In view thereof, and under the circumstances of the present case, the
Court finds that a penalty of two (2) years suspension from the practice
of law would suffice. Further, Atty. Deloria is warned that a repetition of
this and other similar acts will be dealt with more severely.
WHEREFORE, respondent Atty. Amado B. Deloria is found GUILTY of
violating Rules 15.01 and 15.03 of Canon 15, Rule 12.02 of Canon 12,
Canon 17, and Rules 18.03 and 18.04 of Canon 18 of the Code of
Professional Responsibility. Accordingly, he is hereby SUSPENDED from
the practice of law for a period of two (2) years, effective upon his
receipt of this Decision, with a STERN WARNING that a repetition of the
same or similar acts will be dealt with more severely.
The suspension from the practice of law shall take effect immediately
upon receipt by respondent of this Decision. Respondent is DIRECTED to
immediately file a Manifestation to the Court that his suspension has
started, copy furnished all courts and quasi-judicial bodies where he has
entered his appearance as counsel.
Let copies of this Decision be furnished the Office of the Bar Confidant
to be entered in respondent's personal record as a member of the
Philippine Bar, the Integrated Bar of the Philippines for distribution to all
its chapters, and the office of the Court Administrator for circulation to
all courts.
SO ORDERED.
A.C. No. 10557
JERRY M. PALENCIA, Complainant
vs.
Atty. PEDRO L. LINSANGAN, Atty. GERARD M. LINSANGAN, and Atty.
GLENDA M. LINSANGAN-BINOYA, Respondents
DECISION
PER CURIAM  :
Before us is a complaint1 filed by Jerry M. Palencia (complainant) against
Attorneys (Attys.) Pedro L. Linsangan, Gerard M. Linsangan 2 and Glenda
Linsangan-Binoya (respondents) for disciplinary action.
Complainant was an overseas Filipino worker seafarer who was
seriously injured during work when he fell into the elevator shaft of the
vessel M/T "Panos G" flying a Cyprus flag.3 After initial treatment in
Singapore, complainant was discharged and flown to the Philippines to
continue his medical treatment and rehabilitation. While confined at the
Manila Doctors Hospital, one "Moises," and later Jesherel L. Millena
(Jesherel), paralegals in respondents' law office, approached
complainant. They convinced him to engage the services of
respondents' law office in order to file a suit against his employers for
indemnity.4 After several visits from the paralegals and respondent Atty.
Pedro Linsangan, complainant executed (1) an Attorney-Client
Contract,5 and (2) a Special Power of Attomey,6 where he engaged the
legal services of respondents and Gurbani & Co., a law firm based in
Singapore, and agreed to pay attorney's fees of 35% of any recovery or
settlement obtained for both.
After execution of the contract, complainant, through the efforts of
respondents, was paid by his employer the following amounts:
US$60,000.00 as indemnity and US$20,000.00 under their collective
bargaining agreement. From these amounts, respondents charged
complainant attorney's fees of 35%.7
Respondents and Gurbani & Co. also filed a tort case against the owners
of "Panos G" before the High Court of Singapore (Singapore case). For
this case, respondents engaged the services of Papadopoulos, Lycourgos
& Co., a law firm based in Cyprus, to draft a written opinion on the
issues involving Cyprus law, among others.8 They also engaged the
services of retired Justice Emilio Gancayco (Justice Gancayco) for his
expert opinion regarding various issues raised by defendant's lawyer
and representatives.9 Thereafter, negotiations led to a settlement award
in favor of complainant in the amount of US$95,000.00. Gurbani & Co.
remitted to respondents the amount of US$59,608.40. 10 From this
amount, respondents deducted: (1) US$5,000.00 as payment to Justice
Gancayco; (2) their attorney's fees equivalent to 35%; and (3) other
expenses, leaving the net amount of US$ l 8, 132.43 for complainant. 11
Respondents tendered the amount of US$20,756.05 (representing the
US$18,132.43) to complainant, which the latter refused. 12 As
complainant contested the amount comprised of the expenses and
attorney's fees deducted, the following civil actions ensued between
complainant and respondents:
(1) On September 12, 2005, respondents filed an action for preliminary
mandatory injunction (Civil Case No. 05113475) before the Regional
Trial Court (R TC) of Manila to compel complainant to receive the
amount tendered.13 This case was dismissed by the RTC, and the
dismissal was eventually upheld by this Court on July 7, 2008.14
(2) On September 22, 2005, complainant filed with the RTC of Ligao City
an action for accounting, remittance of settlement amounts and
damages (Civil Case No. 2401 or accounting case). 15 On June 16, 2011,
the RTC ruled in favor of complainant and ordered respondents to make
proper accounting, among others. 16 Although the RTC upheld the
stipulated attorney's fees as binding between the parties, it determined
that the fees are lumped for both respondents and Gurbani & Co. 17 On
appeal, the CA affirmed the RTC's Decision but reduced the rate of
attorney's fees to 10%.18 This Court affirmed the CA Decision in our
Resolution dated February 20, 2013 in G.R. No. 205088. An Entry of
Judgment was issued on August 8, 2013.
On March 28, 2007, complainant also filed the subject letter-
complaint19 with the Integrated Bar of the Philippines (IBP) Commission
on Bar Discipline (CBD). He requested that an investigation be
conducted and the corresponding disciplinary action be imposed upon
respondents for committing the following unethical acts: (1) refusing to
remit the amount collected in the Singapore case worth US$95,000.00,
and in offering only US$20,756.05; (2) depositing complainant's money
into their own account; and (3) engaging in "ambulance chasing" by
deploying their agents to convince complainant to hire respondents'
services while the former was still bedridden in the hospital.
In their answer,20 respondents explained that complainant retained
respondents and Gurbani & Co. 's services in 2004 for purposes of filing
a claim against the ship owner, its agents and principals. This led to the
filing of a claim before the Singapore High Court. They averred that on
April 29, 2005, Gurbani & Co. advised respondents of the settlement of
the claim in Singapore for US$95,000.00.21 On June 20, 2005,
respondents sent a letter to complainant informing him that they
already received the settlement amount and requested him to come to
the former' s office to get his net share.22 Complainant went to
respondents' law office on June 28, 2005 where respondents tendered
to the former his net share of US$20,756.05.23 However, complainant
unjustly refused to accept the amount. Complainant also refused their
tender of payment in their letter dated August 3, 2005. 24 On September
12, 2005, respondents even filed a "consignation case" (Civil Case No.
05113475) before the RTC of Manila.25
Respondents denied that they deposited the amount to their own
account. They claimed that the amount of US$20,756.05 has been
placed for safekeeping in a vault located inside their office ever
since.26 On May 3, 2007, after their receipt of the complaint and the IBP-
CBD's Order dated April 3, 2007, they decided to deposit the money
with Bank of the Philippine Islands in an interest savings account, in
trust for complainant.27
As to the allegations of ambulance chasing, respondents averred that
they provide free legal advice to the public. It was in the course of this
public service when they met complainant.28
After proceedings, the IBP-CBD in its Report and
Recommendation29 ruled that respondents violated the canons of the
Code of Professional Responsibility (CPR): (1) in soliciting legal business
through their agents while complainant was in the hospital; (2) in failing
to account for, and deliver the funds and property of his client when
due or upon demand; and (3) in hiring the services of a foreign law firm
and another lawyer without prior knowledge and consent of
complainant of the fees and expenses to be incurred. 30 The IBP-CBD
found that all three respondents connived and thus recommended that
all respondents be suspended from the practice of law for a period of
one year. It also directed respondents to comply with the Decision in
the accounting case (Civil Case No. 2401) in favor of complainant. 31
The IBP Board of Governors adopted the Report and
Recommendation. 32 After respondents' motion for
reconsideration33 and complainant's opposition34 thereto, the IBP Board
of Governors modified the penalty and increased respondents'
suspension from the practice of law to two years with warning, and
ordered respondents to return the 5% of the amount assessed to
complainant as attorney's fees. 35
We adopt the findings of the IBP on the unethical conduct of
respondents Attys. Pedro L. Linsangan and, Gerard M. Linsangan. We,
however, absolve respondent Atty. Glenda M. Linsangan-Binoya for lack
of any evidence as to her participation in the acts complained of.
I
The practice of law is a profession and not a business. 36 Lawyers are
reminded to avoid at all times any act that would tend to lessen the
confidence of the public in the legal profession as a noble calling,
including, among others, the manner by which he makes known his legal
services.
A lawyer in making known his legal services must do so in a dignified
manner.37 They are prohibited from soliciting cases for the purpose of
gain, either personally or through paid agents or brokers.38 The CPR
explicitly states that "[a] lawyer shall not do or permit to be done any
act designed primarily to solicit legal business."39 Corollary to this duty is
for lawyers not to encourage any suit or proceeding for any corrupt
motive or interest.40 Thus, "ambulance chasing," or the solicitation of
almost any kind of business by an attorney, personally or through an
agent, in order to gain employment, is proscribed.41
Here, there is sufficient evidence to show that respondents violated
these rules. No less than their former paralegal Jesherel admitted that
respondent Atty. Pedro Linsangan came with her and another paralegal
named Moises, to Manila Doctors Hospital several times to convince
complainant to hire their services.42 This is a far cry from respondents'
claim that they were merely providing free legal advice to the public.
Moreover, while respondents deny Jesherel's connection with their law
firm, this was sufficiently rebutted by complainant when he presented
Jesherel's resignation letter as received by respondents' firm. 43 In
employing paralegals to encourage complainant to file a lawsuit against
his employers, respondents indirectly solicited legal business and
encouraged the filing of suit. These constitute malpractice44 which calls
for the exercise of the court's disciplinary powers and warrants serious
sanctions.45
II
The relationship between a lawyer and his client is highly
fiduciary. 46 This relationship holds a lawyer to a great degree of fidelity
and good faith especially in handling money or property of his
clients.47 Thus, Canon 16 and its rules remind a lawyer to: (1) hold in
trust all moneys and properties of his client that may come into his
possession;48 (2) deliver the funds and property of his client when due
or upon demand subject to his retaining lien;49 and (3) account for all
money or property collected or received for or from his client.50
Money collected by a lawyer on a judgment rendered in favor of his
client constitutes trust funds and must be immediately paid over to the
client.51 As he holds such funds as agent or trustee, his failure to pay or
deliver the same to the client after demand constitutes
conversion.52 Thus, whenever a lawyer collects money as a result of a
favorable judgment, he must promptly report and account the money
collected to his client. 53
It is the lawyer's duty to give a prompt and accurate account to his
client. Upon the collection or receipt of property or funds for the benefit
of the client, his duty is to notify the client promptly and, absent a
contrary understanding, pay or remit the same to the client, less
only proper fees and disbursements, as soon as reasonably
possible. 54 He is under absolute duty to give his client a full, detailed,
and accurate account of all money and property which has been
received and handled by him, and must justify all transactions and
dealings concerning them. 55 And while he is in possession of the client's
funds, he should not commingle it with his private property or use it for
his personal purposes without his client's consent. 56
Here, respondents claim that they promptly accounted for the total
award of US$95,000.00, and after deducting their fees, tendered the
amount of US$20,756.05. Complainant, however, refused to accept the
amount because he contested both the expenses and the separate
deduction of attorney's fees by respondents and Gurbani & Co.
We find that while respondents gave prompt notice to complainant of
their receipt of money collected in the latter's favor, they were amiss in
their duties to give accurate accounting of the amounts due to
complainant, and to return the money due to client upon demand.
The Attorney-Client Contract between the parties states: "We/I hereby
voluntarily agree and bind ourselves, our heirs and assigns to pay Atty.
Pedro L. Linsangan and his collaborating Singapore counsels, the sum
equivalent to thirty-five [35%] percent of any recovery or settlement
obtained."57 Clearly, the stipulated rate referred to the combined
professional fees of both respondents and their collaborating Singapore
counsel, Gurbani & Co.58 Nevertheless, respondents proceeded to
deduct separate fees on top of the amount already deducted by
Gurbani & Co. Complainant contested this deduction and refused to
accept the amount being tendered by respondents. Since a claim for
attorney's fees may be asserted either in the very action in which the
services of a lawyer had been rendered, or in a separate
action,59 respondents, instead of forcibly deducting their share, should
have moved for the judicial determination and collection of their
attorney's fees. The fact alone that a lawyer has a lien for his attorney's
fees on money in his hands collected for his client does not entitle him
to unilaterally appropriate his client's money for himself.60
Worse, respondents allegedly kept the money inside the firm's vault for
two years until they were made aware of the disciplinary complaint
against them before the IBP-CBD. However, as noted by the IBP-CBD in
its Report and Recommendation:
[T]he defense of respondents that they kept in their office vault the
share of complainant as computed by them in the amount of US$18,
132.43, hence, they forgot the same and remembered it only when they
received the Order of this Commission for them to file an Answer to
complainant's Complaint [which is more than 2 years] is rather highly
incredible considering that it involves a substantial amount, the series of
communications between the parties, and the Civil cases subsequently
filed. 61 (Italics in the original.)
Even if we give credence to this explanation, it is improper for the
lawyer to put his client's funds in his personal safe deposit vault.62 Funds
belonging to the client should be deposited in a separate trust account
in a bank or trust company of good repute for safekeeping. 63
It is apparent from the foregoing that respondents failed to handle their
client's money with great degree of fidelity. Respondents also showed
their lack of good faith when they appropriated for themselves more
than what is allowed under their contract. They have demonstrated that
the payment of their attorney's fees is more important than their
fiduciary and faithful duty of accounting and returning what is rightfully
due to their client. More, they also failed to observe proper safekeeping
of their client's money. Respondents violated the trust reposed in them,
and demonstrated their lack of integrity and moral
64
soundness.   Respondents' flagrant and malicious refusal to comply
with the CPR amounts to gross misconduct.65 This warrants the
imposition of disciplinary sanctions. 66
III
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.67 Thus, the violation of the lawyer's oath
and/or breach of the ethics of the legal profession embodied in the CPR
may, depending on the exercise of sound judicial discretion based on
the surrounding facts, result in the suspension or disbarment of a
member of the Bar.68
While we find respondents Attys. Pedro Linsangan and Gerard Linsangan
to have violated Rule 1.03, Rule 2.03, Canon 3, Canon 16, Rule 16.01,
and Rule 16.03 of the CPR, the records do not support respondent Atty.
Glenda Linsangan-Binoya's participation in their unethical activities.
Complainant himself admits that he only dealt with respondents Attys.
Pedro and Gerard Linsangan.69 Thus, we hold that the case against Atty.
Glenda Linsangan-Binoya be dismissed.
For his violation of the proscription on ambulance chasing, we have
previously imposed the penalty of suspension of one year. 70 We find no
reason not to impose the same penalty here.
On the other hand, the penalty for violation of Canon 16 of the CPR
usually ranges from suspension for six months, to suspension for one
year, or two years, and even disbarment depending on the amount
involved and the severity of the lawyer's misconduct.71 In addition, the
penalty for gross misconduct consisting in the failure or refusal, despite
demand, of a lawyer to account for and to return money or property
belonging to a client has been suspension from the practice of law for
two years. 72 Complainant, who was impaired for life, was constrained to
file this complaint and the action for accounting because of his lawyers'
lack of fidelity and good faith in handling the award he received. We
recognize, however, respondents' efforts in tendering payment, albeit of
an improper amount, to complainant, as well as the fact that this is their
first offense. The imposition of a one year suspension is sufficient under
the circumstances. 73
This penalty of one year suspension for the second infraction is justified,
and does not deserve a further reduction. The fact that it is
respondents' first administrative case cannot serve to mitigate the
penalty. In Cerdan v. Gomez,74 respondent there was still suspended for
a period of one year, after already taking into account that it was his
first offense. More, there are several decisions which support the
imposition of the one year suspension for similar violations. 75 In Viray v.
Sanicas, 76 the court imposed a one year penalty for the same infraction
even after exercising its "compassionate judicial discretion."77
More importantly, respondents' acts do not merely constitute a
violation of Canon 16 and its rules, but already amounts to gross
misconduct.78 First, respondents breached the trust reposed in them
when they betrayed the express language of their Attorney-Client
Contract that they are only entitled to a single 35% attorney's fees
together with the Singapore counsels. In the process, respondents have
also unjustly retained for themselves the 35% of the settlement award
amounting to US$95,000.00-which is more or less US$33,250.00 or
roughly around ₱1.5 million pocketed, and also immensely disparaging
to the US$20,756.05 they tendered to complainant. Second, their
actions following complainant's objection manifests their disregard of
their fiduciary duties. For two years, respondents insisted on, and
forcibly deducted the amount when there are alternative avenues to
determine the correct amount of attorney's fees. They instead treaded
to a path where they advanced their own interests ahead of their
client's. Third, respondents also mishandled their client's money when
they did not exercise proper safekeeping over it; they failed to deposit it
in a separate trust account in a bank or trust company of good repute
for safekeeping but co-mingled it with their own funds. Undoubtedly,
the gravity of these acts amounts to gross misconduct that warrants, at
the very least, a suspension. 79
For both violations, we adopt the recommendation of the IBP Board of
Governors of the imposition of two-year suspension for respondents
Attys. Pedro L. Linsangan and Gerard M. Linsangan. We emphasize that
this penalty of two years of suspension corresponds to the compounded
infractions of the violations of Rule 1.03, Rule 2.03, Canon 3, Canon 16,
Rule 16.01, and Rule 16.03 of the CPR: (1) the penalty of suspension of
one year is imposed for the violation of the proscription on ambulance
chasing; and (2) the penalty of one year suspension for gross
misconduct consisting in the failure or refusal, despite demand, of a
lawyer to account for and toreturn money or property belonging to a
client.
To reiterate, there is no basis, and would even be unjust under the
circumstances, to reduce the penalty imposed on
respondents.1âwphi1 Quite the contrary, respondents should find
themselves so fortunate that for all their exploits, including their
ambulance chasing, this Court would only impose a two-year
suspension.
Finally, we note that this Court, in G.R. No. 205088, has already affirmed
the CA's ruling as to the issue of how much respondents can collect
from complainant as attorney's fees. This judgment has long attained
finality and, in fact, appears to be set for execution. For this reason, we
do not adopt the IBP Board of Governors' recommendation for
respondents to return to complainant 5% of the amount assessed. The
principle of immutability of judgments behooves us from making any
further statements on this particular issue
WHEREFORE, we find respondents Attys. Pedro L. Linsangan and Gerard
M. Linsangan GUILTY. Accordingly, we SUSPEND respondents Attys.
Pedro Linsangan and Gerard Linsangan from the practice of law for TWO
YEARS effective upon finality of this Decision, with a WARNING that a
repetition of the same or similar act in the future will be dealt with
more severely. The complaint against Atty. Glenda M. Linsangan-Binoya
is DISMISSED.

SO ORDERED.

U.S. Supreme Court

McCloskey v. Tobin, 252 U.S. 107 (1920)

McCloskey v. Tobin

No. 79

Submitted November 12, 1919

Decided March 1, 1920

The rights under the Fourteenth Amendment of a layman engaged in

the business of collecting and adjusting claims are not infringed by a
state law prohibiting the solicitation of such employment. P. 252 U. S.
108.

Affirmed.

The case is stated in the opinion.

MR. JUSTICE BRANDEIS delivered the opinion of the Court.
Article 421 of the Penal Code of Texas defined, with much detail, the
offense of barratry. In McCloskey v. San Antonio Traction Co., 192 S.W.
1116, a decree for an injunction restraining the plaintiff in error from
pursuing the practice of fomenting and adjusting claims was reversed on
the ground that this section had superseded the common law offense of
barratry and that, by the Code, "only an attorney at law is forbidden to
solicit employment in any suit himself or by an agent." Article 421 was
then amended (Act March 29, 1917, c. 133) so as to apply to any person
who "shall seek to obtain
Page 252 U. S. 108
employment in any claim to prosecute, defend, present or collect the
same by means of personal solicitation of such employment. . . ."
Thereafter, McCloskey was arrested on an information which charged
him with soliciting employment to collect two claims, one for personal
injuries, the other for painting a buggy. He applied for a writ of habeas
corpus, which was denied both by the county court and the court of
criminal appeals. The case comes here under § 237 of the Judicial Code,
McCloskey having claimed below, as here, that the act under which he
was arrested violates rights guaranteed him by the Fourteenth
Amendment.
The contention is that, since the state had made causes of action in tort
as well as in contract assignable, Galveston &c. Ry. Co. v. Ginther, 96
Tex. 295, they had become an article of commerce, that the business of
obtaining adjustment of claims is not inherently evil, and that therefore,
while regulation was permissible, prohibition of the business violates
rights of liberty and property and denies equal protection of the laws.
The contention may be answered briefly. To prohibit solicitation is to
regulate the business, not to prohibit it. Compare Brazee v.
Michigan, 241 U. S. 340. The evil against which the regulation is directed
is one from which the English law has long sought to protect the
community through proceedings for barratry and champerty. Co.Litt. p.
368 (Day's Edition, 1812, vol. 2, § 701 [368, b.]); 1 Hawkins, Pleas of the
Crown, 6th ed., 524; Peck v. Heurich, 167 U. S. 624, 167 U. S. 630.
Regulation which aims to bring the conduct of the business into
harmony with ethical practice of the legal profession, to which it is
necessarily related, is obviously reasonable. Ford v. Munroe, 144 S.W.
349. The statute is not open to the objections urged against it.
Affirmed.
State Bar of Texas v. Kilpatrick
Supreme Court of Texas
Jun 27, 1994
874 S.W.2d 656 (Tex. 1994)Copy Citation
No. D-4055.
January 5, 1994. Rehearing Overruled February 2, 1994. Certiorari
Denied June 27, 1994. See 114 S.Ct. 2740.
Appeal from the 55th District Court, Harris County, Leonard E. Hoffman,
Jr. J.
James McCormack, Linda A. Acevedo, Austin, for petitioner.
David W. Holman, Houston, for respondent.

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ON APPLICATION FOR WRIT OF ERROR
PER CURIAM.
In this disciplinary proceeding, the court of appeals reversed and
remanded the trial court's order disbarring Donald Kilpatrick for
soliciting employment in violation of State  Bar disciplinary rules. We
reverse the judgment of the court of appeals, and render judgment
disbarring Kilpatrick.
Bill Camp, a Houston attorney, suffered brain damage during a routine
medical procedure on June 13, 1989. A week later, on June 20, his wife
was appointed as his temporary guardian. On September 1, 1989, she
became his permanent guardian.
Kilpatrick visited Camp at the Texas Institute for Research and
Rehabilitation on July 19, 1989. During this meeting, Kilpatrick obtained
Camp's signature on a power of attorney, which purported to authorize
Kilpatrick to represent Camp in a medical malpractice claim. Only
Kilpatrick and Camp were present, and neither Camp, his family, nor any
legal representative requested or authorized Kilpatrick's visit. Kilpatrick
later testified he knew Camp only as a "brother in the bar," that they
had not been close friends or socialized together, and that their only
previous acquaintance had been as opposing counsel on some criminal
cases. He said that he had heard of Camp's misfortune through a law
firm that, in turn, had learned the news from the emergency room
physician on duty at the time of Camp's injury. Kilpatrick learned of
Camp's location by calling Camp's office.
On July 21, 1989, two days after Kilpatrick obtained Camp's signature,
Hornbuckle Montgomery, the firm that had contacted Kilpatrick, filed a
malpractice lawsuit against the doctors who treated Camp. When Ms.
Camp learned of Kilpatrick's actions, she told Kilpatrick that the power
of attorney was invalid, that she was Camp's guardian, and that Bill
Camp was in no condition to retain a lawyer. Ms. Camp also hired a
probate lawyer, Robert McIntyre, to assist her with the guardianship.
At Ms. Camp's behest, McIntyre went to Kilpatrick's office and
demanded that Kilpatrick relinquish any claim to represent Camp under
the power of attorney. Kilpatrick refused, and insisted on a referral fee.
When McIntyre repeated his demand to Kilpatrick in a letter dated
October 6, 1989, Kilpatrick demanded $277,000.00 in exchange for his
release.
As guardian, Ms. Camp filed a TEX.R.CIV.P. 12 Motion for Attorney to
Show Authority with the probate court concerning Kilpatrick's power of
attorney. On November 17, 1989, the probate court determined that
Camp was mentally incompetent on the date he signed the power of
attorney, and that Kilpatrick had no authority to represent him. The
probate court also directed Kilpatrick to reimburse Ms. Camp for the
attorneys' fees she had incurred as a result of his actions. On December
8, 1989, the same day the court issued its order, Kilpatrick appeared at
McIntyre's office with an unfiled Motion to Recuse the probate judge.
Kilpatrick threatened to file the motion unless Ms. Camp paid him the
requested referral fee.
Some time after the court held Kilpatrick was disqualified, Ms. Camp
retained Richard Mithoff to handle the malpractice claim. Mithoff
eventually reached a settlement with Camp's doctors.
In April 1991, the State Bar filed a disciplinary action against Kilpatrick,
charging him with violations of five disciplinary rules. At trial, the jury
found that Kilpatrick (1) initiated contact with a prospective client for
the purpose of obtaining employment, (2) engaged in conduct involving
dishonesty, deceit, or misrepresentation, and (3) with intent to obtain
an economic benefit to himself, solicited employment for himself to
prosecute or collect a claim. On March 13, the trial court rendered
judgment on the verdict, disbarring Kilpatrick.
The court of appeals reversed the trial court's judgment and remanded
for new trial on two grounds. 869 S.W.2d 361. First, the court of appeals
held that the trial court had erroneously permitted the State Bar to
amend its pleadings at trial to include an allegation of barratry. Id. at
364. Second, the court held that the trial court abused its discretion in
ordering disbarment based on a single act of solicitation. Id. at 366. We
disagree with the court of appeals on both counts.
The State Bar's expert witness, Fred Hagans, testified on the issue of
barratry, first during cross-examination by Kilpatrick's attorney, and
then on redirect examination. At the subsequent charge conference, the
State Bar requested a trial amendment alleging  barratry as defined
in TEX.PENAL CODE ANN. § 38.12(a) (Vernon Supp. 1993), reprinted
in TEX.PENAL CODE ANN. § 38.12 note (Vernon Supp. 1994) (Historical
and Statutory Notes), amended by TEX.PENAL CODE ANN. §
38.12(a) (Vernon Supp. 1994). Over Kilpatrick's objection, the trial court
permitted the trial amendment, and included the issue in the charge.
If evidence is objected to at trial on the ground that it is not within the
issues made by the pleadings, the court may allow the pleadings to be
amended and shall do so freely when the presentation of the merits will
be subserved thereby and the objecting party fails to satisfy the court
that the amendment would prejudice that party in maintaining the
action or defense on the merits. TEX.R.CIV.P. 66 (emphasis supplied). A
court may not refuse a trial amendment unless (1) the opposing party
presents evidence of surprise or prejudice, or (2) the amendment
asserts a new cause of action or defense, and thus is prejudicial on its
face. Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex.
1990). The burden of showing surprise or prejudice rests on the party
resisting the amendment. Id. If the trial amendment is not mandatory,
then the decision to permit or deny the amendment rests within the
sound discretion of the trial court. TEX.R.CIV.P. 66; Greenhalgh, 787
S.W.2d at 939. In such a case, the court's decision to allow or deny a
trial amendment may be reversed only if it is a clear abuse of
discretion. Hardin v. Hardin, 597 S.W.2d 347, 349-50 (Tex. 1980).
The court of appeals held that the trial amendment alleging barratry
was "prejudicial on its face" because it added a new cause of action. 869
S.W.2d at 365. In so doing the court of appeals effectively held that all
nonmandatory trial amendments under Rule 66 must be rejected. To
the contrary, we hold that the decision to grant or deny the trial
amendment was discretionary, and under the circumstances the trial
court did not abuse that discretion.
The trial amendment added an additional cause of action to the extent
it alleged another ground of attorney misconduct under former Article
X, section 7 of the STATE BAR RULES. See also TEX.R.DISCIPLINARY P.
1.06(Q) (1992), reprinted in TEX.GOV'T CODE ANN., tit. 2, subtit. G, app.
A-1 (Vernon Supp. 1994) (current version of same rule). The initial
pleadings alleged multiple forms of attorney misconduct in violation of
STATE BAR RULES art. X, § 7(1), which is a general prohibition
concerning acts or omissions that violate the Texas Code of Professional
Responsibility. The trial amendment added an allegation under a
different subdivision of the same article and section of the disciplinary
rules. STATE BAR RULES art. X, § 7(5) ("engaging in conduct that
constitutes barratry as defined by [TEX.PENAL CODE ANN. §
38.12(a) (Vernon Supp. 1993) ]"). See also TEX.R.DISCIPLINARY P.
1.06(Q)(5) (1992) (current version).
The central allegation in the State Bar's initial complaint was that
Kilpatrick violated former TEX.CODE PROFESSIONAL RESPONSIBILITY DR
2-103(D)(1), which prohibited attorneys from initiating contact with
prospective clients for the purpose of obtaining employment if the
lawyer knew or reasonably should have known the person could not
have exercised reasonable judgment in employing a lawyer. See
also, TEX.DISCIPLINARY R.PROF.CONDUCT 7.02 (1989), reprinted
in TEX.GOV'T CODE ANN., tit. 2, subtit. G, app. A (Vernon Supp. 1994)
(STATE BAR RULES art. X § 9). Former DR 2-103(D)(1) shares common
elements with the criminal offense of barratry, and the evidence
presented at trial supported discipline under either theory. Thus, the
trial court, in its discretion, could reasonably have concluded that the
trial amendment did not impair Kilpatrick's ability to present his
defense. We therefore hold that the trial amendment did not involve
the kind of calculated surprise or unfair prejudice that would render it
an abuse of discretion.
Barratry is the solicitation of employment to prosecute or defend a
claim with intent to obtain a personal benefit. TEX.PENAL CODE ANN. §
38.12(a)(3) (Vernon Supp. 1993), amended by TEX.PENAL CODE ANN. §
38.12(a) (Vernon Supp. 1994).
The court of appeals further based its reversal on the fact that Kilpatrick
had not  been convicted of barratry in criminal proceedings: "[T]here
was no criminal prosecution, yet, the State Bar obtained a finding of
criminal wrongdoing without the hardship of the higher burden of proof
which is necessary for a conviction." 869 S.W.2d at 365. The court of
appeals erred, however, in its assumption that an attorney may not be
disciplined for barratry in civil proceedings without first being convicted
in criminal proceedings. While barratry is a crime for which an attorney
may be prosecuted, a criminal prosecution is not a prerequisite to
disciplinary proceedings based on that offense. TEX.GOV'T CODE ANN. §
82.062 (Vernon 1988) ("Any attorney who is guilty of barratry . . . may
be [disciplined] . . . regardless of whether the attorney is being
prosecuted for, or has been convicted of the offense."). Thus, we hold
that the trial amendment resulted in no unfair prejudice, and was
clearly within the trial court's discretion.
The court of appeals also concluded that the trial court's judgment
should be reversed because the sanction of disbarment was so
disproportionate to Kilpatrick's misconduct that it constituted an abuse
of discretion. 869 S.W.2d at 366. We disagree.
The court of appeals characterized Kilpatrick's misconduct as an
"isolated act of solicitation." Comparing it to other reported disciplinary
cases in which the attorney misconduct "was much more egregious but
in which the appellate court approved lesser sanctions," the court
concluded that the sanction of disbarment was "so heavy" as be an
abuse of discretion. 869 S.W.2d at 366.
The judgment of a trial court in a disciplinary proceeding may be so
light, or so heavy, as to constitute an abuse of discretion. See State v.
Ingram, 511 S.W.2d 252, 253 (Tex. 1974). At the same time, the trial
court has broad discretion to determine whether an attorney guilty of
professional misconduct should be reprimanded, suspended, or
disbarred. Id.; State v. O'Dowd, 158 Tex. 348, 312 S.W.2d 217, 221 (Tex.
1958). In determining the appropriate sanction for attorney misconduct,
a trial court must consider the nature and degree of the professional
misconduct, the seriousness of and circumstances surrounding the
misconduct, the loss or damage to clients, the damage to the
profession, the assurance that those who seek legal services in the
future will be insulated from the type of misconduct found, the profit to
the attorney, the avoidance of repetition, the deterrent effect on others,
the maintenance of respect for the legal profession, the trial of the case,
and other relevant evidence concerning the attorney's personal and
professional background. TEX.R.DISCIPLINARY P. 3.10 (1992). The court
may, in its discretion, hold a separate evidentiary hearing and take
evidence on these issues. Id.
The sanction of disbarment does not turn on whether an attorney has
engaged in a single act, as opposed to repeated and systematic pattern,
of misconduct. Under Disciplinary Rule 3.10, a multitude of factors must
be considered. In light of the facts and circumstances presented, we
cannot say that the trial court abused its discretion, and we disagree
with the court of appeals that the sanction of disbarment is
disproportionate to Kilpatrick's misconduct.

We therefore grant the application of the State Bar and, without

hearing argument, a majority of the court reverses the judgment of the
court of appeals, and renders judgment disbarring Donald Kilpatrick.
TEX.R.APP.P.