Problem Areas in Legal Ethics Cases

G.R. No. 105938 September 20, 1996 TEODORO R. REGALA, EDGARDO J. ANGARA, AVELINO V. CRUZ, JOSE C. CONCEPCION, ROGELIO A. VINLUAN, VICTOR P. LAZATIN and EDUARDO U. ESCUETA, petitioners, vs. THE HONORABLE SANDIGANBAYAN, First Division, REPUBLIC OF THE PHILIPPINES, ACTING THROUGH THE PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, and RAUL S. ROCO, respondents. G.R. No. 108113 September 20, 1996 PARAJA G. HAYUDINI, petitioner, vs. THE SANDIGANBAYAN and THE REPUBLIC OF THE PHILIPPINES, respondents. KAPUNAN, J.: These case touch the very cornerstone of every State's judicial system, upon which the workings of the contentious and adversarial system in the Philippine legal process are based — the sanctity of fiduciary duty in the client-lawyer relationship. The fiduciary duty of a counsel and advocate is also what makes the law profession a unique position of trust and confidence, which distinguishes it from any other calling. In this instance, we have no recourse but to uphold and strengthen the mantle of protection accorded to the confidentiality that proceeds from the performance of the lawyer's duty to his client. The facts of the case are undisputed. The matters raised herein are an offshoot of the institution of the Complaint on July 31, 1987 before the Sandiganbayan by the Republic of the Philippines, through the Presidential Commission on Good Government against Eduardo M. Cojuangco, Jr., as one of the principal defendants, for the recovery of alleged ill-gotten wealth, which includes shares of stocks in the named corporations in PCGG Case No. 33 (Civil Case No. 0033), entitled "Republic of the Philippines versus Eduardo Cojuangco, et al." 1 Among the dependants named in the case are herein petitioners Teodoro Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U. Escueta and Paraja G. Hayudini, and herein private respondent Raul S. Roco, who all were then partners of the law firm Angara, Abello, Concepcion, Regala and Cruz Law Offices (hereinafter referred to as the ACCRA Law Firm). ACCRA Law Firm performed legal services for its clients, which included, among others, the organization and acquisition of business associations and/or organizations, with the correlative and incidental services where its members acted as incorporators, or simply, as stockholders. More specifically, in the performance of these services, the members of the law firm delivered to its client documents which substantiate the client's equity holdings, i.e., stock certificates endorsed in blank representing the shares registered in the client's name, and a blank deed of trust or assignment covering said shares. In the course of their dealings with their clients, the members of the law firm acquire information relative to the assets of clients as well as their personal and business circumstances. As members of the ACCRA Law Firm, petitioners and private respondent Raul Roco admit that they assisted in the organization and acquisition of the companies included in Civil Case No. 0033, and in keeping with the office practice, ACCRA lawyers acted as nominees-stockholders of the said corporations involved in sequestration proceedings. 2

On August 20, 1991, respondent Presidential Commission on Good Government (hereinafter referred to as respondent PCGG) filed a "Motion to Admit Third Amended Complaint" and "Third Amended Complaint" which excluded private respondent Raul S. Roco from the complaint in PCGG Case No. 33 as party-defendant. 3 Respondent PCGG based its exclusion of private respondent Roco as party-defendant on his undertaking that he will reveal the identity of the principal/s for whom he acted as nominee/stockholder in the companies involved in PCGG Case No. 33. 4 Petitioners were included in the Third Amended Complaint on the strength of the following allegations: 14. Defendants Eduardo Cojuangco, Jr., Edgardo J. Angara, Jose C. Concepcion, Teodoro Regala, Avelino V. Cruz, Rogelio A. Vinluan, Eduardo U. Escueta, Paraja G. Hayudini and Raul Roco of the Angara Concepcion Cruz Regala and Abello law offices (ACCRA) plotted, devised, schemed conspired and confederated with each other in setting up, through the use of the coconut levy funds, the financial and corporate framework and structures that led to the establishment of UCPB, UNICOM, COCOLIFE, COCOMARK, CIC, and more than twenty other coconut levy funded corporations, including the acquisition of San Miguel Corporation shares and its institutionalization through presidential directives of the coconut monopoly. Through insidious means and machinations, ACCRA, being the whollyowned investment arm, ACCRA Investments Corporation, became the holder of approximately fifteen million shares representing roughly 3.3% of the total outstanding capital stock of UCPB as of 31 March 1987. This ranks ACCRA Investments Corporation number 44 among the top 100 biggest stockholders of UCPB which has approximately 1,400,000 shareholders. On the other hand, corporate books show the name Edgardo J. Angara as holding approximately 3,744 shares as of February, 1984. 5 In their answer to the Expanded Amended Complaint, petitioners ACCRA lawyers alleged that: 4.4 Defendants-ACCRA lawyers' participation in the acts with which their codefendants are charged, was in furtherance of legitimate lawyering. 4.4.1 In the course of rendering professional and legal services to clients, defendantsACCRA lawyers, Jose C. Concepcion, Teodoro D. Regala, Rogelio A. Vinluan and Eduardo U. Escueta, became holders of shares of stock in the corporations listed under their respective names in Annex "A" of the expanded Amended Complaint as incorporating or acquiring stockholders only and, as such, they do not claim any proprietary interest in the said shares of stock. 4.5 Defendant ACCRA-lawyer Avelino V. Cruz was one of the incorporators in 1976 of Mermaid Marketing Corporation, which was organized for legitimate business purposes not related to the allegations of the expanded Amended Complaint. However, he has long ago transferred any material interest therein and therefore denies that the "shares" appearing in his name in Annex "A" of the expanded Amended Complaint are his assets. 6 Petitioner Paraja Hayudini, who had separated from ACCRA law firm, filed a separate answer denying the allegations in the complaint implicating him in the alleged ill-gotten wealth. 7 Petitioners ACCRA lawyers subsequently filed their "COMMENT AND/OR OPPOSITION" dated October 8, 1991 with Counter-Motion that respondent PCGG similarly grant the

same treatment to them (exclusion as parties-defendants) as accorded private respondent Roco. 8 The Counter-Motion for dropping petitioners from the complaint was duly set for hearing on October 18, 1991 in accordance with the requirements of Rule 15 of the Rules of Court. In its "Comment," respondent PCGG set the following conditions precedent for the exclusion of petitioners, namely: (a) the disclosure of the identity of its clients; (b) submission of documents substantiating the lawyer-client relationship; and (c) the submission of the deeds of assignments petitioners executed in favor of its client covering their respective shareholdings. 9 Consequently, respondent PCGG presented supposed proof to substantiate compliance by private respondent Roco of the conditions precedent to warrant the latter's exclusion as party-defendant in PCGG Case No. 33, to wit: (a) Letter to respondent PCGG of the counsel of respondent Roco dated May 24, 1989 reiterating a previous request for reinvestigation by the PCGG in PCGG Case No. 33; (b) Affidavit dated March 8, 1989 executed by private respondent Roco as Attachment to the letter aforestated in (a); and (c) Letter of the Roco, Bunag, and Kapunan Law Offices dated September 21, 1988 to the respondent PCGG in behalf of private respondent Roco originally requesting the reinvestigation and/or reexamination of the evidence of the PCGG against Roco in its Complaint in PCGG Case No. 33. 10 It is noteworthy that during said proceedings, private respondent Roco did not refute petitioners' contention that he did actually not reveal the identity of the client involved in PCGG Case No. 33, nor had he undertaken to reveal the identity of the client for whom he acted as nominee-stockholder. 11 On March 18, 1992, respondent Sandiganbayan promulgated the Resolution, herein questioned, denying the exclusion of petitioners in PCGG Case No. 33, for their refusal to comply with the conditions required by respondent PCGG. It held: xxx xxx xxx ACCRA lawyers may take the heroic stance of not revealing the identity of the client for whom they have acted, i.e. their principal, and that will be their choice. But until they do identify their clients, considerations of whether or not the privilege claimed by the ACCRA lawyers exists cannot even begin to be debated. The ACCRA lawyers cannot excuse themselves from the consequences of their acts until they have begun to establish the basis for recognizing the privilege; the existence and identity of the client. This is what appears to be the cause for which they have been impleaded by the PCGG as defendants herein. 5. The PCGG is satisfied that defendant Roco has demonstrated his agency and that Roco has apparently identified his principal, which revelation could show the lack of cause against him. This in turn has allowed the PCGG to exercise its power both under the rules of Agency and under Section 5 of E.O. No. 14-A in relation to the Supreme Court's ruling in Republic v. Sandiganbayan (173 SCRA 72). The PCGG has apparently offered to the ACCRA lawyers the same conditions availed of by Roco; full disclosure in exchange for exclusion from these proceedings (par. 7, PCGG's

COMMENT dated November 4, 1991). The ACCRA lawyers have preferred not to make the disclosures required by the PCGG. The ACCRA lawyers cannot, therefore, begrudge the PCGG for keeping them as party defendants. In the same vein, they cannot compel the PCGG to be accorded the same treatment accorded to Roco. Neither can this Court. WHEREFORE, the Counter Motion dated October 8, 1991 filed by the ACCRA lawyers and joined in by Atty. Paraja G. Hayudini for the same treatment by the PCGG as accorded to Raul S. Roco is DENIED for lack of merit. 12 ACCRA lawyers moved for a reconsideration of the above resolution but the same was denied by the respondent Sandiganbayan. Hence, the ACCRA lawyers filed the petition for certiorari, docketed as G.R. No. 105938, invoking the following grounds: I The Honorable Sandiganbayan gravely abused its discretion in subjecting petitioners ACCRA lawyers who undisputably acted as lawyers in serving as nominee-stockholders, to the strict application of the law of agency. II The Honorable Sandiganbayan committed grave abuse of discretion in not considering petitioners ACCRA lawyers and Mr. Roco as similarly situated and, therefore, deserving of equal treatment. 1. There is absolutely no evidence that Mr. Roco had revealed, or had undertaken to reveal, the identities of the client(s) for whom he acted as nominee-stockholder. 2. Even assuming that Mr. Roco had revealed, or had undertaken to reveal, the identities of the client(s), the disclosure does not constitute a substantial distinction as would make the classification reasonable under the equal protection clause. 3. Respondent Sandiganbayan sanctioned favoritism and undue preference in favor of Mr. Roco in violation of the equal protection clause. III The Honorable Sandiganbayan committed grave abuse of discretion in not holding that, under the facts of this case, the attorney-client privilege prohibits petitioners ACCRA lawyers from revealing the identity of their client(s) and the other information requested by the PCGG. 1. Under the peculiar facts of this case, the attorney-client privilege includes the identity of the client(s). 2. The factual disclosures required by the PCGG are not limited to the identity of petitioners ACCRA lawyers' alleged client(s) but extend to other privileged matters. IV

The Honorable Sandiganbayan committed grave abuse of discretion in not requiring that the dropping of party-defendants by the PCGG must be based on reasonable and just grounds and with due consideration to the constitutional right of petitioners ACCRA lawyers to the equal protection of the law. Petitioner Paraja G. Hayudini, likewise, filed his own motion for reconsideration of the March 18, 1991 resolution which was denied by respondent Sandiganbayan. Thus, he filed a separate petition for certiorari, docketed as G.R. No. 108113, assailing respondent Sandiganbayan's resolution on essentially the same grounds averred by petitioners in G.R. No. 105938. Petitioners contend that the exclusion of respondent Roco as party-defendant in PCGG Case No. 33 grants him a favorable treatment, on the pretext of his alleged undertaking to divulge the identity of his client, giving him an advantage over them who are in the same footing as partners in the ACCRA law firm. Petitioners further argue that even granting that such an undertaking has been assumed by private respondent Roco, they are prohibited from revealing the identity of their principal under their sworn mandate and fiduciary duty as lawyers to uphold at all times the confidentiality of information obtained during such lawyer-client relationship. Respondent PCGG, through its counsel, refutes petitioners' contention, alleging that the revelation of the identity of the client is not within the ambit of the lawyer-client confidentiality privilege, nor are the documents it required (deeds of assignment) protected, because they are evidence of nominee status. 13 In his comment, respondent Roco asseverates that respondent PCGG acted correctly in excluding him as party-defendant because he "(Roco) has not filed an Answer. PCGG had therefore the right to dismiss Civil Case No. 0033 as to Roco 'without an order of court by filing a notice of dismissal'," 14 and he has undertaken to identify his principal. 15 Petitioners' contentions are impressed with merit. I It is quite apparent that petitioners were impleaded by the PCGG as co-defendants to force them to disclose the identity of their clients. Clearly, respondent PCGG is not after petitioners but the "bigger fish" as they say in street parlance. This ploy is quite clear from the PCGG's willingness to cut a deal with petitioners — the names of their clients in exchange for exclusion from the complaint. The statement of the Sandiganbayan in its questioned resolution dated March 18, 1992 is explicit: ACCRA lawyers may take the heroic stance of not revealing the identity of the client for whom they have acted, i.e, their principal, and that will be their choice. But until they do identify their clients, considerations of whether or not the privilege claimed by the ACCRA lawyers exists cannot even begin to be debated. The ACCRA lawyers cannot excuse themselves from the consequences of their acts until they have begun to establish the basis for recognizing the privilege; the existence and identity of the client. This is what appears to be the cause for which they have been impleaded by the PCGG as defendants herein. (Emphasis ours)

In a closely related case, Civil Case No. 0110 of the Sandiganbayan, Third Division, entitled "Primavera Farms, Inc., et al. vs. Presidential Commission on Good Government" respondent PCGG, through counsel Mario Ongkiko, manifested at the hearing on December 5, 1991 that the PCGG wanted to establish through the ACCRA that their "so called client is Mr. Eduardo Cojuangco;" that "it was Mr. Eduardo Cojuangco who furnished all the monies to those subscription payments in corporations included in Annex "A" of the Third Amended Complaint; that the ACCRA lawyers executed deeds of trust and deeds of assignment, some in the name of particular persons; some in blank. We quote Atty. Ongkiko: ATTY. ONGKIKO: With the permission of this Hon. Court. I propose to establish through these ACCRA lawyers that, one, their so-called client is Mr. Eduardo Cojuangco. Second, it was Mr. Eduardo Cojuangco who furnished all the monies to these subscription payments of these corporations who are now the petitioners in this case. Third, that these lawyers executed deeds of trust, some in the name of a particular person, some in blank. Now, these blank deeds are important to our claim that some of the shares are actually being held by the nominees for the late President Marcos. Fourth, they also executed deeds of assignment and some of these assignments have also blank assignees. Again, this is important to our claim that some of the shares are for Mr. Conjuangco and some are for Mr. Marcos. Fifth, that most of thes e corporations are really just paper corporations. Why do we say that? One: There are no really fixed sets of officers, no fixed sets of directors at the time of incorporation and even up to 1986, which is the crucial year. And not only that, they have no permits from the municipal authorities in Makati. Next, actually all their addresses now are care of Villareal Law Office. They really have no address on records. These are some of the principal things that we would ask of these nominees stockholders, as they called themselves. 16 It would seem that petitioners are merely standing in for their clients as defendants in the complaint. Petitioners are being prosecuted solely on the basis of activities and services performed in the course of their duties as lawyers. Quite obviously, petitioners' inclusion as co-defendants in the complaint is merely being used as leverage to compel them to name their clients and consequently to enable the PCGG to nail these clients. Such being the case, respondent PCGG has no valid cause of action as against petitioners and should exclude them from the Third Amended Complaint. II The nature of lawyer-client relationship is premised on the Roman Law concepts of locatio conductio operarum (contract of lease of services) where one person lets his services and another hires them without reference to the object of which the services are to be performed, wherein lawyers' services may be compensated by honorarium or for hire, 17 and mandato (contract of agency) wherein a friend on whom reliance could be placed makes a contract in his name, but gives up all that he gained by the contract to the person who requested him. 18 But the lawyer-client relationship is more than that of the principal-agent and lessor-lessee. In modern day perception of the lawyer-client relationship, an attorney is more than a mere agent or servant, because he possesses special powers of trust and confidence reposed on him by his client. 19 A lawyer is also as independent as the judge of the court, thus his powers are entirely different from and superior to those of an ordinary agent. 20

Moreover, an attorney also occupies what may be considered as a "quasi-judicial office" since he is in fact an officer of the Court 21 and exercises his judgment in the choice of courses of action to be taken favorable to his client. Thus, in the creation of lawyer-client relationship, there are rules, ethical conduct and duties that breathe life into it, among those, the fiduciary duty to his client which is of a very delicate, exacting and confidential character, requiring a very high degree of fidelity and good faith, 22 that is required by reason of necessity and public interest 23 based on the hypothesis that abstinence from seeking legal advice in a good cause is an evil which is fatal to the administration of justice. 24 It is also the strict sense of fidelity of a lawyer to his client that distinguishes him from any other professional in society. This conception is entrenched and embodies centuries of established and stable tradition. 25 In Stockton v. Ford, 26 the U. S. Supreme Court held: There are few of the business relations of life involving a higher trust and confidence than that of attorney and client, or generally speaking, one more honorably and faithfully discharged; few more anxiously guarded by the law, or governed by the sterner principles of morality and justice; and it is the duty of the court to administer them in a corresponding spirit, and to be watchful and industrious, to see that confidence thus reposed shall not be used to the detriment or prejudice of the rights of the party bestowing it. 27 In our jurisdiction, this privilege takes off from the old Code of Civil Procedure enacted by the Philippine Commission on August 7, 1901. Section 383 of the Code specifically "forbids counsel, without authority of his client to reveal any communication made by the client to him or his advice given thereon in the course of professional employment." 28 Passed on into various provisions of the Rules of Court, the attorney-client privilege, as currently worded provides: Sec. 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases: xxx xxx xxx An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity. 29 Further, Rule 138 of the Rules of Court states: Sec. 20. It is the duty of an attorney: (e) to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client's business except from him or with his knowledge and approval. This duty is explicitly mandated in Canon 17 of the Code of Professional Responsibility which provides that: 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 15 of the Canons of Professional Ethics also demands a lawyer's fidelity to client: The lawyers owes "entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability," to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public popularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicanery. He must obey his own conscience and not that of his client. Considerations favoring confidentially in lawyer-client relationships are many and serve several constitutional and policy concerns. In the constitutional sphere, the privilege gives flesh to one of the most sacrosanct rights available to the accused, the right to counsel. If a client were made to choose between legal representation without effective communication and disclosure and legal representation with all his secrets revealed then he might be compelled, in some instances, to either opt to stay away from the judicial system or to lose the right to counsel. If the price of disclosure is too high, or if it amounts to self incrimination, then the flow of information would be curtailed thereby rendering the right practically nugatory. The threat this represents against another sacrosanct individual right, the right to be presumed innocent is at once self-evident. Encouraging full disclosure to a lawyer by one seeking legal services opens the door to a whole spectrum of legal options which would otherwise be circumscribed by limited information engendered by a fear of disclosure. An effective lawyer-client relationship is largely dependent upon the degree of confidence which exists between lawyer and client which in turn requires a situation which encourages a dynamic and fruitful exchange and flow of information. It necessarily follows that in order to attain effective representation, the lawyer must invoke the privilege not as a matter of option but as a matter of duty and professional responsibility. The question now arises whether or not this duty may be asserted in refusing to disclose the name of petitioners' client(s) in the case at bar. Under the facts and circumstances obtaining in the instant case, the answer must be in the affirmative. As a matter of public policy, a client's identity should not be shrouded in mystery 30 Under this premise, the general rule in our jurisdiction as well as in the United States is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of this client. 31 The reasons advanced for the general rule are well established. First, the court has a right to know that the client whose privileged information is sought to be protected is flesh and blood. Second, the privilege begins to exist only after the attorney-client relationship has been established. The attorney-client privilege does not attach until there is a client. Third, the privilege generally pertains to the subject matter of the relationship.

Finally, due process considerations require that the opposing party should, as a general rule, know his adversary. "A party suing or sued is entitled to know who his opponent is." 32 He cannot be obliged to grope in the dark against unknown forces. 33 Notwithstanding these considerations, the general rule is however qualified by some important exceptions. 1) Client identity is privileged where a strong probability exists that revealing the client's name would implicate that client in the very activity for which he sought the lawyer's advice. In Ex-Parte Enzor, 34 a state supreme court reversed a lower court order requiring a lawyer to divulge the name of her client on the ground that the subject matter of the relationship was so closely related to the issue of the client's identity that the privilege actually attached to both. In Enzor, the unidentified client, an election official, informed his attorney in confidence that he had been offered a bribe to violate election laws or that he had accepted a bribe to that end. In her testimony, the attorney revealed that she had advised her client to count the votes correctly, but averred that she could not remember whether her client had been, in fact, bribed. The lawyer was cited for contempt for her refusal to reveal his client's identity before a grand jury. Reversing the lower court's contempt orders, the state supreme court held that under the circumstances of the case, and under the exceptions described above, even the name of the client was privileged. U .S. v. Hodge and Zweig, 35 involved the same exception, i.e. that client identity is privileged in those instances where a strong probability exists that the disclosure of the client's identity would implicate the client in the very criminal activity for which the lawyer's legal advice was obtained. The Hodge case involved federal grand jury proceedings inquiring into the activities of the "Sandino Gang," a gang involved in the illegal importation of drugs in the United States. The respondents, law partners, represented key witnesses and suspects including the leader of the gang, Joe Sandino. In connection with a tax investigation in November of 1973, the IRS issued summons to Hodge and Zweig, requiring them to produce documents and information regarding payment received by Sandino on behalf of any other person, and vice versa. The lawyers refused to divulge the names. The Ninth Circuit of the United States Court of Appeals, upholding non-disclosure under the facts and circumstances of the case, held: A client's identity and the nature of that client's fee arrangements may be privileged where the person invoking the privilege can show that a strong probability exists that disclosure of such information would implicate that client in the very criminal activity for which legal advice was sought Baird v. Koerner, 279 F. 2d at 680. While in Baird Owe enunciated this rule as a matter of California law, the rule also reflects federal law. Appellants contend that the Baird exception applies to this case. The Baird exception is entirely consonant with the principal policy behind the attorneyclient privilege. "In order to promote freedom of consultation of legal advisors by clients, the apprehension of compelled disclosure from the legal advisors must be removed; hence, the law must prohibit such disclosure except on the client's consent." 8 J. Wigmore, supra sec. 2291, at 545. In furtherance of this policy, the client's identity and the nature of his fee arrangements are, in exceptional cases, protected as confidential communications. 36

2) Where disclosure would open the client to civil liability; his identity is privileged. For instance, the peculiar facts and circumstances of Neugass v. Terminal Cab Corporation, 37 prompted the New York Supreme Court to allow a lawyer's claim to the effect that he could not reveal the name of his client because this would expose the latter to civil litigation. In the said case, Neugass, the plaintiff, suffered injury when the taxicab she was riding, owned by respondent corporation, collided with a second taxicab, whose owner was unknown. Plaintiff brought action both against defendant corporation and the owner of the second cab, identified in the information only as John Doe. It turned out that when the attorney of defendant corporation appeared on preliminary examination, the fact was somehow revealed that the lawyer came to know the name of the owner of the second cab when a man, a client of the insurance company, prior to the institution of legal action, came to him and reported that he was involved in a car accident. It was apparent under the circumstances that the man was the owner of the second cab. The state supreme court held that the reports were clearly made to the lawyer in his professional capacity. The court said: That his employment came about through the fact that the insurance company had hired him to defend its policyholders seems immaterial. The attorney is such cases is clearly the attorney for the policyholder when the policyholder goes to him to report an occurrence contemplating that it would be used in an action or claim against him. 38 xxx xxx xxx All communications made by a client to his counsel, for the purpose of professional advice or assistance, are privileged, whether they relate to a suit pending or contemplated, or to any other matter proper for such advice or aid; . . . And whenever the communication made, relates to a matter so connected with the employment as attorney or counsel as to afford presumption that it was the ground of the address by the client, then it is privileged from disclosure. . . It appears . . . that the name and address of the owner of the second cab came to the attorney in this case as a confidential communication. His client is not seeking to use the courts, and his address cannot be disclosed on that theory, nor is the present action pending against him as service of the summons on him has not been effected. The objections on which the court reserved decision are sustained. 39 In the case of Matter of Shawmut Mining Company, 40 the lawyer involved was required by a lower court to disclose whether he represented certain clients in a certain transaction. The purpose of the court's request was to determine whether the unnamed persons as interested parties were connected with the purchase of properties involved in the action. The lawyer refused and brought the question to the State Supreme Court. Upholding the lawyer's refusal to divulge the names of his clients the court held: If it can compel the witness to state, as directed by the order appealed from, that he represented certain persons in the purchase or sale of these mines, it has made progress in establishing by such evidence their version of the litigation. As already suggested, such testimony by the witness would compel him to disclose not only that he was attorney for certain people, but that, as the result of communications made to him in the course of such employment as such attorney, he knew that they were interested in certain transactions. We feel sure that under such conditions no case has ever gone to the length

of compelling an attorney, at the instance of a hostile litigant, to disclose not only his retainer, but the nature of the transactions to which it related, when such information could be made the basis of a suit against his client. 41 3) Where the government's lawyers have no case against an attorney's client unless, by revealing the client's name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime, the client's name is privileged. In Baird vs. Korner, 42 a lawyer was consulted by the accountants and the lawyer of certain undisclosed taxpayers regarding steps to be taken to place the undisclosed taxpayers in a favorable position in case criminal charges were brought against them by the U.S. Internal Revenue Service (IRS). It appeared that the taxpayers' returns of previous years were probably incorrect and the taxes understated. The clients themselves were unsure about whether or not they violated tax laws and sought advice from Baird on the hypothetical possibility that they had. No investigation was then being undertaken by the IRS of the taxpayers. Subsequently, the attorney of the taxpayers delivered to Baird the sum of $12, 706.85, which had been previously assessed as the tax due, and another amount of money representing his fee for the advice given. Baird then sent a check for $12,706.85 to the IRS in Baltimore, Maryland, with a note explaining the payment, but without naming his clients. The IRS demanded that Baird identify the lawyers, accountants, and other clients involved. Baird refused on the ground that he did not know their names, and declined to name the attorney and accountants because this constituted privileged communication. A petition was filed for the enforcement of the IRS summons. For Baird's repeated refusal to name his clients he was found guilty of civil contempt. The Ninth Circuit Court of Appeals held that, a lawyer could not be forced to reveal the names of clients who employed him to pay sums of money to the government voluntarily in settlement of undetermined income taxes, unsued on, and with no government audit or investigation into that client's income tax liability pending. The court emphasized the exception that a client's name is privileged when so much has been revealed concerning the legal services rendered that the disclosure of the client's identity exposes him to possible investigation and sanction by government agencies. The Court held: The facts of the instant case bring it squarely within that exception to the general rule. Here money was received by the government, paid by persons who thereby admitted they had not paid a sufficient amount in income taxes some one or more years in the past. The names of the clients are useful to the government for but one purpose — to ascertain which taxpayers think they were delinquent, so that it may check the records for that one year or several years. The voluntary nature of the payment indicates a belief by the taxpayers that more taxes or interest or penalties are due than the sum previously paid, if any. It indicates a feeling of guilt for nonpayment of taxes, though whether it is criminal guilt is undisclosed. But it may well be the link that could form the chain of testimony necessary to convict an individual of a federal crime. Certainly the payment and the feeling of guilt are the reasons the attorney here involved was employed — to advise his clients what, under the circumstances, should be done. 43 Apart from these principal exceptions, there exist other situations which could qualify as exceptions to the general rule. For example, the content of any client communication to a lawyer lies within the privilege if it is relevant to the subject matter of the legal problem on which the client seeks legal

assistance. 44 Moreover, where the nature of the attorney-client relationship has been previously disclosed and it is the identity which is intended to be confidential, the identity of the client has been held to be privileged, since such revelation would otherwise result in disclosure of the entire transaction. 45 Summarizing these exceptions, information relating to the identity of a client may fall within the ambit of the privilege when the client's name itself has an independent significance, such that disclosure would then reveal client confidences. 46 The circumstances involving the engagement of lawyers in the case at bench, therefore, clearly reveal that the instant case falls under at least two exceptions to the general rule. First, disclosure of the alleged client's name would lead to establish said client's connection with the very fact in issue of the case, which is privileged information, because the privilege, as stated earlier, protects the subject matter or the substance (without which there would be not attorney-client relationship). The link between the alleged criminal offense and the legal advice or legal service sought was duly establishes in the case at bar, by no less than the PCGG itself. The key lies in the three specific conditions laid down by the PCGG which constitutes petitioners' ticket to non-prosecution should they accede thereto: (a) the disclosure of the identity of its clients; (b) submission of documents substantiating the lawyer-client relationship; and (c) the submission of the deeds of assignment petitioners executed in favor of their clients covering their respective shareholdings. From these conditions, particularly the third, we can readily deduce that the clients indeed consulted the petitioners, in their capacity as lawyers, regarding the financial and corporate structure, framework and set-up of the corporations in question. In turn, petitioners gave their professional advice in the form of, among others, the aforementioned deeds of assignment covering their client's shareholdings. There is no question that the preparation of the aforestated documents was part and parcel of petitioners' legal service to their clients. More important, it constituted an integral part of their duties as lawyers. Petitioners, therefore, have a legitimate fear that identifying their clients would implicate them in the very activity for which legal advice had been sought, i.e., the alleged accumulation of ill-gotten wealth in the aforementioned corporations. Furthermore, under the third main exception, revelation of the client's name would obviously provide the necessary link for the prosecution to build its case, where none otherwise exists. It is the link, in the words of Baird, "that would inevitably form the chain of testimony necessary to convict the (client) of a . . . crime." 47 An important distinction must be made between a case where a client takes on the services of an attorney for illicit purposes, seeking advice about how to go around the law for the purpose of committing illegal activities and a case where a client thinks he might have previously committed something illegal and consults his attorney about it. The first case clearly does not fall within the privilege because the same cannot be invoked for purposes illegal. The second case falls within the exception because whether or not the act for which the client sought advice turns out to be illegal, his name cannot be used or

disclosed if the disclosure leads to evidence, not yet in the hands of the prosecution, which might lead to possible action against him. These cases may be readily distinguished, because the privilege cannot be invoked or used as a shield for an illegal act, as in the first example; while the prosecution may not have a case against the client in the second example and cannot use the attorney client relationship to build up a case against the latter. The reason for the first rule is that it is not within the professional character of a lawyer to give advice on the commission of a crime. 48 The reason for the second has been stated in the cases above discussed and are founded on the same policy grounds for which the attorney-client privilege, in general, exists. In Matter of Shawmut Mining Co., supra, the appellate court therein stated that "under such conditions no case has ever yet gone to the length of compelling an attorney, at the instance of a hostile litigant, to disclose not only his retainer, but the nature of the transactions to which it related, when such information could be made the basis of a suit against his client." 49 "Communications made to an attorney in the course of any personal employment, relating to the subject thereof, and which may be supposed to be drawn out in consequence of the relation in which the parties stand to each other, are under the seal of confidence and entitled to protection as privileged communications." 50 Where the communicated information, which clearly falls within the privilege, would suggest possible criminal activity but there would be not much in the information known to the prosecution which would sustain a charge except that revealing the name of the client would open up other privileged information which would substantiate the prosecution's suspicions, then the client's identity is so inextricably linked to the subject matter itself that it falls within the protection. The Baird exception, applicable to the instant case, is consonant with the principal policy behind the privilege, i.e., that for the purpose of promoting freedom of consultation of legal advisors by clients, apprehension of compelled disclosure from attorneys must be eliminated. This exception has likewise been sustained in In re Grand Jury Proceedings 51 and Tillotson v. Boughner. 52 What these cases unanimously seek to avoid is the exploitation of the general rule in what may amount to a fishing expedition by the prosecution. There are, after all, alternative source of information available to the prosecutor which do not depend on utilizing a defendant's counsel as a convenient and readily available source of information in the building of a case against the latter. Compelling disclosure of the client's name in circumstances such as the one which exists in the case at bench amounts to sanctioning fishing expeditions by lazy prosecutors and litigants which we cannot and will not countenance. When the nature of the transaction would be revealed by disclosure of an attorney's retainer, such retainer is obviously protected by the privilege. 53 It follows that petitioner attorneys in the instant case owe their client(s) a duty and an obligation not to disclose the latter's identity which in turn requires them to invoke the privilege. In fine, the crux of petitioners' objections ultimately hinges on their expectation that if the prosecution has a case against their clients, the latter's case should be built upon evidence painstakingly gathered by them from their own sources and not from compelled testimony requiring them to reveal the name of their clients, information which unavoidably reveals much about the nature of the transaction which may or may not be illegal. The logical nexus between name and nature of transaction is so intimate in this case the it would be difficult to simply dissociate one from the other. In this sense, the name is as much "communication" as information revealed directly about the transaction in question itself, a communication which is clearly and distinctly privileged. A lawyer

cannot reveal such communication without exposing himself to charges of violating a principle which forms the bulwark of the entire attorney-client relationship. The uberrimei fidei relationship between a lawyer and his client therefore imposes a strict liability for negligence on the former. The ethical duties owing to the client, including confidentiality, loyalty, competence, diligence as well as the responsibility to keep clients informed and protect their rights to make decisions have been zealously sustained. In Milbank, Tweed, Hadley and McCloy v. Boon, 54 the US Second District Court rejected the plea of the petitioner law firm that it breached its fiduciary duty to its client by helping the latter's former agent in closing a deal for the agent's benefit only after its client hesitated in proceeding with the transaction, thus causing no harm to its client. The Court instead ruled that breaches of a fiduciary relationship in any context comprise a special breed of cases that often loosen normally stringent requirements of causation and damages, and found in favor of the client. To the same effect is the ruling in Searcy, Denney, Scarola, Barnhart, and Shipley P.A. v. Scheller 55 requiring strict obligation of lawyers vis-a-vis clients. In this case, a contingent fee lawyer was fired shortly before the end of completion of his work, and sought payment quantum meruit of work done. The court, however, found that the lawyer was fired for cause after he sought to pressure his client into signing a new fee agreement while settlement negotiations were at a critical stage. While the client found a new lawyer during the interregnum, events forced the client to settle for less than what was originally offered. Reiterating the principle of fiduciary duty of lawyers to clients in Meinhard v. Salmon 56 famously attributed to Justice Benjamin Cardozo that "Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior," the US Court found that the lawyer involved was fired for cause, thus deserved no attorney's fees at all. The utmost zeal given by Courts to the protection of the lawyer-client confidentiality privilege and lawyer's loyalty to his client is evident in the duration of the protection, which exists not only during the relationship, but extends even after the termination of the relationship. 57 Such are the unrelenting duties required by lawyers vis-a-vis their clients because the law, which the lawyers are sworn to uphold, in the words of Oliver Wendell Holmes, 58 ". . . is an exacting goddess, demanding of her votaries in intellectual and moral discipline." The Court, no less, is not prepared to accept respondents' position without denigrating the noble profession that is lawyering, so extolled by Justice Holmes in this wise: Every calling is great when greatly pursued. But what other gives such scope to realize the spontaneous energy of one's soul? In what other does one plunge so deep in the stream of life — so share its passions its battles, its despair, its triumphs, both as witness and actor? . . . But that is not all. What a subject is this in which we are united — this abstraction called the Law, wherein as in a magic mirror, we see reflected, not only in our lives, but the lives of all men that have been. When I think on this majestic theme my eyes dazzle. If we are to speak of the law as our mistress, we who are here know that she is a mistress only to be won with sustained and lonely passion — only to be won by straining all the faculties by which man is likened to God. We have no choice but to uphold petitioners' right not to reveal the identity of their clients under pain of the breach of fiduciary duty owing to their clients, because the facts of the instant case clearly fall within recognized exceptions to the rule that the client's name is not privileged information.

If we were to sustain respondent PCGG that the lawyer-client confidential privilege under the circumstances obtaining here does not cover the identity of the client, then it would expose the lawyers themselves to possible litigation by their clients in view of the strict fiduciary responsibility imposed on them in the exercise of their duties. The complaint in Civil Case No. 0033 alleged that the defendants therein, including herein petitioners and Eduardo Cojuangco, Jr. conspired with each other in setting up through the use of coconut levy funds the financial and corporate framework and structures that led to the establishment of UCPB, UNICOM and others and that through insidious means and machinations, ACCRA, using its wholly-owned investment arm, ACCRA Investment Corporation, became the holder of approximately fifteen million shares representing roughly 3.3% of the total capital stock of UCPB as of 31 March 1987. The PCGG wanted to establish through the ACCRA lawyers that Mr. Cojuangco is their client and it was Cojuangco who furnished all the monies to the subscription payment; hence, petitioners acted as dummies, nominees and/or agents by allowing themselves, among others, to be used as instrument in accumulating ill-gotten wealth through government concessions, etc., which acts constitute gross abuse of official position and authority, flagrant breach of public trust, unjust enrichment, violation of the Constitution and laws of the Republic of the Philippines. By compelling petitioners, not only to reveal the identity of their clients, but worse, to submit to the PCGG documents substantiating the client-lawyer relationship, as well as deeds of assignment petitioners executed in favor of its clients covering their respective shareholdings, the PCGG would exact from petitioners a link "that would inevitably form the chain of testimony necessary to convict the (client) of a crime." III In response to petitioners' last assignment of error, respondents alleged that the private respondent was dropped as party defendant not only because of his admission that he acted merely as a nominee but also because of his undertaking to testify to such facts and circumstances "as the interest of truth may require, which includes . . . the identity of the principal." 59 First, as to the bare statement that private respondent merely acted as a lawyer and nominee, a statement made in his out-of-court settlement with the PCGG, it is sufficient to state that petitioners have likewise made the same claim not merely out-of-court but also in the Answer to plaintiff's Expanded Amended Complaint, signed by counsel, claiming that their acts were made in furtherance of "legitimate lawyering." 60 Being "similarly situated" in this regard, public respondents must show that there exist other conditions and circumstances which would warrant their treating the private respondent differently from petitioners in the case at bench in order to evade a violation of the equal protection clause of the Constitution. To this end, public respondents contend that the primary consideration behind their decision to sustain the PCGG's dropping of private respondent as a defendant was his promise to disclose the identities of the clients in question. However, respondents failed to show — and absolute nothing exists in the records of the case at bar — that private respondent actually revealed the identity of his client(s) to the PCGG. Since the undertaking happens to be the leitmotif of the entire arrangement between Mr. Roco and the PCGG, an undertaking which is so material as to have justified PCGG's special treatment exempting the private respondent from prosecution, respondent

Sandiganbayan should have required proof of the undertaking more substantial than a "bare assertion" that private respondent did indeed comply with the undertaking. Instead, as manifested by the PCGG, only three documents were submitted for the purpose, two of which were mere requests for re-investigation and one simply disclosed certain clients which petitioners (ACCRA lawyers) were themselves willing to reveal. These were clients to whom both petitioners and private respondent rendered legal services while all of them were partners at ACCRA, and were not the clients which the PCGG wanted disclosed for the alleged questioned transactions. 61 To justify the dropping of the private respondent from the case or the filing of the suit in the respondent court without him, therefore, the PCGG should conclusively show that Mr. Roco was treated as species apart from the rest of the ACCRA lawyers on the basis of a classification which made substantial distinctions based on real differences. No such substantial distinctions exist from the records of the case at bench, in violation of the equal protection clause. The equal protection clause is a guarantee which provides a wall of protection against uneven application of status and regulations. In the broader sense, the guarantee operates against uneven application of legal norms so that all persons under similar circumstances would be accorded the same treatment. 62 Those who fall within a particular class ought to be treated alike not only as to privileges granted but also as to the liabilities imposed. . . . What is required under this constitutional guarantee is the uniform operation of legal norms so that all persons under similar circumstances would be accorded the same treatment both in the privileges conferred and the liabilities imposed. As was noted in a recent decision: "Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not identical are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding the rest. 63 We find that the condition precedent required by the respondent PCGG of the petitioners for their exclusion as parties-defendants in PCGG Case No. 33 violates the lawyer-client confidentiality privilege. The condition also constitutes a transgression by respondents Sandiganbayan and PCGG of the equal protection clause of the Constitution. 64 It is grossly unfair to exempt one similarly situated litigant from prosecution without allowing the same exemption to the others. Moreover, the PCGG's demand not only touches upon the question of the identity of their clients but also on documents related to the suspected transactions, not only in violation of the attorney-client privilege but also of the constitutional right against self-incrimination. Whichever way one looks at it, this is a fishing expedition, a free ride at the expense of such rights. An argument is advanced that the invocation by petitioners of the privilege of attorneyclient confidentiality at this stage of the proceedings is premature and that they should wait until they are called to testify and examine as witnesses as to matters learned in confidence before they can raise their objections. But petitioners are not mere witnesses. They are co-principals in the case for recovery of alleged ill-gotten wealth. They have made their position clear from the very beginning that they are not willing to testify and they cannot be compelled to testify in view of their constitutional right against selfincrimination and of their fundamental legal right to maintain inviolate the privilege of attorney-client confidentiality.

It is clear then that the case against petitioners should never be allowed to take its full course in the Sandiganbayan. Petitioners should not be made to suffer the effects of further litigation when it is obvious that their inclusion in the complaint arose from a privileged attorney-client relationship and as a means of coercing them to disclose the identities of their clients. To allow the case to continue with respect to them when this Court could nip the problem in the bud at this early opportunity would be to sanction an unjust situation which we should not here countenance. The case hangs as a real and palpable threat, a proverbial Sword of Damocles over petitioners' heads. It should not be allowed to continue a day longer. While we are aware of respondent PCGG's legal mandate to recover ill-gotten wealth, we will not sanction acts which violate the equal protection guarantee and the right against self-incrimination and subvert the lawyer-client confidentiality privilege. WHEREFORE, IN VIEW OF THE FOREGOING, the Resolutions of respondent Sandiganbayan (First Division) promulgated on March 18, 1992 and May 21, 1992 are hereby ANNULLED and SET ASIDE. Respondent Sandiganbayan is further ordered to exclude petitioners Teodoro D. Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, Victor P. Lazatin, Eduardo U. Escueta and Paraja G. Hayuduni as parties-defendants in SB Civil Case No. 0033 entitled "Republic of the Philippines v. Eduardo Cojuangco, Jr., et al." SO ORDERED. Bellosillo, Melo and Francisco, JJ., concur. Padilla, Panganiban and Torres, Jr., JJ., concur in the result. Romero and Hermosisima, Jr., JJ., took no part. Mendoza, J., is on leave. A.M. No. 936 July 25, 1975 (65 SCRA 304) FERMINA LEGASPI DAROY, LYDIA LEGASPI and AGRIPINO LEGASPI, complainants, vs. ATTORNEY RAMON CHAVES LEGASPI, respondent. AQUINO, J.: Fermina Legazpi-Daroy, Lydia Legaspi-Acha and Agripino Legaspi of Iligan City, in a verified complaint dated March 10, 1970, charged Attorney Ramon Chaves Legaspi of Cagayan de Oro City with malpractice for having misappropriated the sum of four thousand pesos which he had collected for them. They prayed that the respondent be disbarred. 1 (He was 59 years old in 1974. He passed the 1954 bar examinations with a rating of 75.75%). The evidence shows that the complainants hired the respondent in May, 1962 to represent them in the intestate proceeding for the settlement of the estate of the spouses Aquilino Gonzaga and Paz Velez-Gonzaga. The complainants, together with their brother, Vivencio, who was abroad, were adjudged as one of the six groups of heirs of the late Gonzaga spouses, their deceased mother, Consuelo Gonzaga-Legaspi, being a daughter of the spouses. The heirs in a joint petition dated April 11, 1969, which the respondent signed as counsel for the complainants, agreed that the coconut land left by the decedents would be

divided into six equal parts, that the administrator be authorized to sell the land, and that, after payment of the obligations of the estate, the net proceeds would be distributed among the six groups of heirs. The probate court approved that agreement in its order of April 29, 1969 (Spec. Proc. Nop. 640 of the Misamis Oriental CFI, Exh. A). The land was sold. Fermina Legaspi-Daroy came to know of the sale only when the respondent wrote a note dated November 28, 1969 to her father, Teofilo Legaspi, wherein he stated "that the money we have deposited may be withdrawn on December 8, 1969 at 9:00 o'clock". The respondent advised Teofilo Legaspito see him on that date so that the money could be withdrawn (Exh. B). The complainants were not able to get the money on December 8 because the respondent on December 7 sent to Mrs. Daroy a telegram countermanding his prior advice and directing here to go to Cagayan de Oro City on December 10, a Wednesday, to receive the money (Exh. C). On December 9, a certain Atty. Sugamo sent a handwritten note to Mrs. Daroy advising her not to go to Cagayan de Oro City on December 10 because according to the respondent "his postdated checks can be paid and/or collected either Thursday or Friday yet" (Exh. D). In the afternoon of that same day, December 9, Mrs. Daroy received another note, this time from the respondent himself, "Cousin Ramon". The note contained the disturbing intelligence that Mrs. Daroy's "Cousin Ramon" had withdrawn the money amounting to P4,000 and had spent it. The letter, a sort of extrajudicial confession or mea culpa on respondent's part, reads as follows (Exh. E): Dear Fermina, I wrote this letter with the hope that you will understand me. I have received P4,000.00 our share in the case filed and is now in my custody. Previous (sic) I have a case wherein I was forced to use our money to solve my problem. Now to pay the amount I have used, I sold my jeep to Mr. Ricarte Gorospe, an Employee of the BIR here in Cag. But I am not paid as yet. So, I am waiting as he will pay at 3:00 p.m. today and it's close as I have promised to give it on the 10th, I mean our money. Kindly help me, defer the giving you of the sum or at least until Thursday or Friday, I bring it to you. I know, my responsibility on this matter. Thanks Cousin Ramon It turned out that on October 20, 1969 the respondent, as to "counsel for Fermina Daroy et al.", received from Deputy Provincial Sheriff Jose V. Yasay the said sum of P4,000 as "one (1) share in participation of my clients Fermina Daroy et al. in connection with (the) order of Judge B. K. Gorospe" in the aforementioned intestate proceeding. The respondent signed a receipt for that amount (Exh. L-1). The sheriff paid to Attorneys Angel Quimpo, Leovigildo Tandog, Jr. and Teogenes Velez, Jr. the respective shares of the other groups of

heirs also in the sum of P4,000 for each group. Those lawyers turned over the amounts withdrawn to their respective clients (Exh. L). It is evident that the respondent, in writing on November 28, 1969 to Teofilo Legaspi that the money deposited could be withdrawn on December 8, 1969, acted in bad faith. He had already withdrawn the money before that date. He concealed that fact from the complainants. Before the disbarment complaint was filed several demands were made upon the respondent to pay to the complainants the amount which he had misappropriated. He repeatedly broke his promises to make payment. As complainants' patience was already exhausted, they filed their complaint for disbarment on March 13, 1970. 2 Atty. Alfredo R. Busico, the lawyer for the complainants, in a letter to this Court's Clerk of Court dated May 26, 1970, expressed the hope that preferential attention would be given to the case. He said that he had "reliable information from Cagayan de Oro City" that the respondent "has been bragging that nothing will happen to this case" (p. 20, Rollo).1äwphï1.ñët The case was referred to the Solicitor General for investigation, report and recommendation. In 1973 he requested the City Fiscal of Iligan City to conduct the investigation. 3 After the investigation was finished, the case was set for hearing. The respondent did not appear at the hearing. Respondent Legaspi in his testimony admitted that he received the said sum of P4,000 as shown in the receipt, Exhibit D dated October 20, 1969. He said that after receiving it he immediately wired Teofilo Legaspi at Iligan City to see him (the respondent) in his office at Cagayan de Oro City so that Teofilo Legaspi could tell him "the proper disposal" of that amount. Teofilo Legaspi supposedly went to see him on October 21, 1969 and at their conference they supposedly agreed that the sum of P700 would be deducted from the P4,000 to cover the expenses which he (Legaspi) described as "expenses involved from the parties litigants, expenses seeking evidence and other expenses relevant to the case" and "major expenses" in the case (sic); that his attorney's fees would be equivalent "to a share of the petitioners", an agreement which was later placed in formal form (referring to 1968 extrajudicial settlement attached to his answer); that the balance of P3,300 would be divided into six equal parts (six because of the four Legaspi children, the father Teofilo Legaspi and the lawyer Ramon C. Legaspi); that under such division each participant would receive P412 each (P3,300 divided by six gives a quotient of P550 not P412), and that he gave Teofilo the sum of P412. The respondent did not present any receipt to prove that alleged payment. He said that at first Teofilo Legaspi told him to keep the share of Vivencio Legaspi, who was abroad, but at the end of October or the first week of November, 1969 Teofilo got from him (the respondent) Vivencio's share. Again, the respondent did not ask Teofilo to sign a receipt for Vivencio's share. After paying the shares of Teofilo and Vivencio, the balance of the amount left in respondent's possession amounted to P2,476. According to respondent's version, the complainants "refused consistently to receive" the said balance from him because they wanted the full amount of P4,000. He said that he had already paid to them the sum of P2,000 and that only the sum of P476 was left in his

custody. He did not present any receipt to prove the alleged payment of P2,000. He said that he could deliver that amount of P476 to the complainants. Mrs. Daroy, in rebuttal, denied that her father, Teofilo Legaspi, received the sum of P412 from the respondent. She said that her father never went to Cagayan de Oro City to confer with the respondent. She said that there was no agreement that the respondent would participate like an heir in the partition of the sum of P4,000. She denied that the respondent offered to pay her and her brother and sister the sum of P2,746. She denied that the respondent paid to the complainants P2,000. After a careful examination of the evidence, we find that respondent's testimony cannot be given any credence. In his memorandum he stated that after he received from the sheriff "on October 29, 1969" the sum of P4,000, he "immediately wired" his kinsman, Teofilo Legaspi, to come to Cagayan de Oro City and that Teofilo "came on October 21, 1969". Respondent meant October 20, 1969, the date of the receipt, Exhibit L-1. The truth is that he did not send any such wire. The statement of the sheriff and respondent's office clerk in their affidavits of March 18, 1975 that such a wire was sent is false. What he sent to Teofilo Legaspi was a handwritten note dated November 28, 1969 (Exh. B) wherein the respondent made it appear that the said sum of P4,000 was going to be withdrawn on "December 8, 1969 at nine o'clock". That the respondent in his testimony and memorandum forgot that note, which is Annex C of the complaint for disbarment and which he admitted in paragraph 4 of his answer, is an indication that he does not know the facts of his own case and that he had no scruples in trying to mislead and deceive this Court. That note of respondent to Teofilo Legaspi, his telegram and his letter (already quoted) to Mrs. Daroy dated December 7 and 9, 1969, respectively (Exh. B, C and E) overwhelmingly belie his fabricated theory that he conferred with Teofilo Legaspi at the end of October or in the first week of November, 1969. He was tempted to concoct a story as to his alleged payments to Teofilo Legaspi because the latter is dead and could not refute him. However, complainants' documentary evidence refutes his prevarications, distortions and fabrications. He attached to his memorandum (of which he did not furnish complainants a copy) his Exhibit 2, a supposed typewritten claim against him which totalled P10,406.05. Exhibit 2 does not bear any signature. The respondent wants to imply that the complainants were trying to blackmail him. No probative value can be given to Exhibit 2. The flimsiness and incredible character of respondent's defense are discernible in his Exhibit 1, which he attached to his answer to the original complaint. Exhibit 1 as a carbon copy of a supposed extrajudicial partition executed in 1968 by the four children of Consuelo Gonzaga, by her surviving husband, Teofilo Legaspi and by the respondent, Atty. Legaspi, all the six being described in the document as "the legitimate children and sole heirs of Consuelo Gonzaga, who died on March 12. 1941". Why the respondent was an heir of Consuelo Gonzaga was not explained. In that curious instrument, the spaces for the day and month when it was signed and acknowledged before a notary, the spaces for the description of the fourth parcel of land, the spaces for the shares adjudicated to the heirs, the spaces for the instrumental witnesses and the spaces for the numbers of the residence certificates and the dates and

places of issue were left blank. Yet the instrument was signed by the above six persons and duly notarized by a notary whose signature is illegible. In that extrajudicial partition Consuelo Gonzaga was alleged to have left four parcels of land located at Barrio Maputi, Initao, Misamis Oriental which she inherited from her father Aquilino Gonzaga. However, in the order of the Court of First Instance of Misamis Oriental dated April 29, 1969 Consuelo Gonzaga inherited only a one-sixth share in a parcel of land located at Maputi, Initao, Misamis Oriental. How Vivencio Legaspi, who, according to the instrument, was a resident of Alameda, California, was able to sign it and to appear before a notary was not explained. The incomplete document, far from being of any help to respondent Legaspi, casts a reflection on his competency and integrity as a lawyer and on the competency and integrity of the notary before whom it was acknowledged. As already noted, it was made to appear herein that respondent Legaspi was an heir of Consuelo Gonzaga when, obviously, he did not possess that status. The document does not even mention whether the deceased died intestate. That document has no connection with the P4,000 and does misappropriation or breach of trust committed by the respondent.

not

justify

the

A lawyer, under his oath, pledges himself not to delay any man for money or malice and is bound to conduct himself with all good fidelity to his clients. He is obligated to report promptly the money of his clients that has come into his possession. He should not commingle it with his private property or use it for his personal purposes without his client's consent. He should maintain a reputation for honesty and fidelity to private trust (Pars. 11 and 32, Canons of Legal Ethics). Money collected by a lawyer in pursuance of a judgment in favor of his clients is held in trust and must be immediately turned over to them (Aya vs. Bigornia, 57 Phil. 8, 11).1äwphï1.ñët Section 25, Rule 138 of the Rules of Court provides that when an attorney unjustly retains in his hands money of his client after it has been demanded, he may be punished for contempt as an officer of the court who has misbehaved in his official transactions and he is liable to a criminal prosecution. A lawyer may be disbarred for any deceit, malpractice or other gross misconduct in his office as attorney or for any violation of the lawyer's oath (Ibid, sec. 27). "The relation between an attorney and his client is highly fiduciary in its nature and of a very delicate, exacting and confidential character, requiring a high degree of fidelity and good faith" (7 Am. Jur. 2d 105). In view of that special relationship, "lawyers are bound to promptly account for money or property received by them on behalf of their clients and failure to do so constitutes professional misconduct. The fact that a lawyer has a lien for fees on money in his hands collected for his clients does not relieve him from the duty of promptly accounting for the funds received." (Syllabus, In re Bamberger, 49 Phil. 962). The conversion of funds entrusted to an attorney is a gross violation of general morality as well as professional ethics. It impairs public confidence in the legal profession, "It deserves severe punishment" (Sturr vs. State Bar of California, 52 Cal. 2d 125, 338 Pac. 2d 897).1äwphï1.ñët

A member of the bar who converts the money of his client to his own benefit through false pretenses is guilty of deceit, malpractice and gross misconduct in his office of lawyer. The attorney, who violates his oath of office, betrays the confidence reposed in him by a client and practices deceit cannot be permitted to continue as a law practitioner. Not alone has he degraded himself but as an unfaithful lawyer he has besmirched the fair name of an honorable profession (In re Paraiso, 41 Phil. 24, 25; In re David, 84 Phil. 627; Manaloto vs. Reyes, Adm. Case No. 503, October 29, 1965, 15 SCRA 131; See Cabigao and Yzquierdo vs. Fernando Rodrigo, 57 Phil. 20). We find respondent Legaspi guilty of deceit, malpractice and professional misconduct for having misappropriated the funds of his clients. His manufactured defenses, his lack of candor and his repeated failure to appear at the investigation conducted by the City Fiscal of Iligan and at the hearings scheduled by this Court, thus causing this proceeding to drag on for a long time, demonstrate his unworthiness to remain as a member of the noble profession of law. (See Capulong vs. Aliño, Adm. Case No. 381, February 10, 1968, 22 SCRA 491). Taking into account the environmental circumstances of the case, we hold that the proper disciplinary action against the respondent is disbarment. Its salutary purpose is to protect the court and the public from the misconduct of an officer of the court. It is premised on the assumption that a member of the bar should be competent, honorable and reliable, a person in whom courts and clients may repose confidence (In re MacDougall, 3 Phil. 70, 78). Its objectives are to compel the lawyer to deal fairly and honestly with his client and to remove from the profession a person whose misconduct has proven him unfit for the duties and responsibilities belonging to the office of an attorney (6 Moran's Comments on the Rules of Court, 1970 Ed., p. 242).1äwphï1.ñët The prayer of the complainants that the respondent be ordered to pay them the said amount of P4,000 plus attorney's fees and miscellaneous expenses incurred in the prosecution of this case amounting to more than P1,000 cannot be granted in this disbarment proceeding. That amount should be recovered in an ordinary action. WHEREFORE, the respondent is disbarred. The Clerk of Court is directed to strike out his name from the Roll of Attorneys. SO ORDERED. Makalintal, C.J., Castro, Fernando, Barredo, Makasiar, Antonio, Esguerra, Muñoz Palma, Concepcion Jr., and Martin, JJ., concur. Teehankee, J., is on leave.

Footnotes 1 On July 3, 1975 Matilde Sacay Isip filed in this Court a complaint for disbarment against the same respondent, Atty. Legaspi, on the ground of malpractice (Administrative Case No. 1490)..

2 In view of respondent's failure to comply with his promise to pay the said sum of P4,000 to the complainants, they consulted Attorney Alfredo R. Busico as to what they should do. Following that lawyer's advice, they sent a telegram to the respondent on January 10, 1970, requesting him to pay the P4,000 within a week or they would file civil and administrative actions against him (Exh. F). In reply, the respondent sent a telegram to Mrs. Daroy, promising that he would be able to make payment on or before January 30, 1970 (Exh. G). On January 21, 1970 the complainants sent a wire to the respondent, warning him that if he did not comply with his commitment within the extended period, they would file actions against him without any further notice (Exh. H). Inasmuch as the respondent had reneged on his promise to pay the P4,000 on or before January 30, Mrs. Daroy, accompanied by Atty. Busico, repaired to Cagayan de Oro City in order to make a personal demand on the respondent. They were not able to see him in his office. They left with his secretary an ultimatum, stating that it would be to respondent's advantage to settle the matter and that, if within a week no such settlement was made, the necessary actions would be filed in the proper tribunals (Exh. 1). The respondent requested Atty. Busico as a matter of compañerismo to give him one week to effect the settlement (Exh. J dated February 14, 1970). Atty. Busico in a reply-telegram dated February 17,1970 clarified that the respondent had until February 21 within which to make payment. He asked the respondent to wire how the payment would be made (Exh. K). The respondent did not bother to reply. 3 The Fiscal issued a subpoena to the respondent to attend the hearing scheduled on August 3, 1973. The respondent did not appear. The Fiscal motu propio cancelled the hearing in order to give the respondent a chance to be heard. The case was set for hearing on August 6, 1973 with due notice to the respondent. He did not appear. Mrs. Daroy testified at the hearing. The complainants presented their Exhibits A to L-1. On January 2, 1974 the Solicitor General filed a complaint for disbarment against respondent Legaspi (See Sec. 5, Rule 139, Rules of Court). After the respondent had filed his answer through counsel, which answer is at variance with his answer to the original complaint, the case was again referred to the City Fiscal of Iligan City for the reception of respondent's evidence. He set the case for hearing on June 25 and July 2, 1974 with due notice to the respondent and his counsel. On those dates the complainants and their counsel appeared but the respondent and his counsel did not appear. The hearing for July 30, 1974 was postponed at respondent's instance. At his request, the case was set for hearing on August 2,1974. As usual, the respondent and counsel did not appear. The case was set for hearing on August 27 for the last time. On that date the respondent presented his evidence. He asked for a continuance. The continuation of the hearing was set for August 30. The respondent did not appear. The Fiscal heard complainants' rebuttal evidence. Respondents' additional evidence was received in this Court only on April 1, 1975. His memorandum was submitted in June, 1975

G.R. No. L-6789

February 16, 1912 (91 Phil 512)

THE UNITED STATES, plaintiff-appellee, vs. CALIXTO LARANJA, defendant-appellant. J. A. Wolfson for appellant. Acting Attorney-General Harvey for appellee TRENT, J.: The defendant Calixto Laranja, having been convicted by the Court of First Instance of the Province of Iloilo, the Honorable J. S. Powell presiding , and sentenced to seventeen years four months and one day of reclusion temporal, to pay the heirs of the deceased P1,000, and to pay the costs, for the crime of homicide, appealed to this court. From the record it appears that the appellant, who is the son of a man named Apolinar, and four or five companions went to the house of one Candoy on the night of November 8, 1910; that sometime after these men arrived at this house on the night, they, together with the people living in said house, began singing and drinking; that a quarrel and fight ensued which resulted in the death of Candoy and Ando. Subsequently thereto, criminal complaints were filed in the Court of First Instance against this appellant and one Iyon, charging them with the crime of homicide. Iyon was tried first. When the case against the appellant was called, a certain agreement with reference to admitting the testimony taken in the case against Iyon was entered into by counsel for the defendant and the provincial fiscal. This agreement, as stated by the trial court, was as follows: Counsel de oficio, Mr. Lozano, stated that with the sworn statement of the defendant in addition to the evidence taken in the case No. 1889, that he would submit the case, He said, and it was within the knowledge of the court, that he had been present all during the trial assisting the fiscal in the case against Iyon and that Calixto had been present and heard all the testimony in the case against Iyon, and that he was willing for the record in the case against Iyon to be used in the trial of this case. The fiscal agreed to this, and the defendant, after being sworn, went upon the stand. The case was submitted upon the testimony of the appellant and that taken in the case against Iyon. Counsel for the defendant now insists that the trial court erred in allowing, to the prejudice of the defendant, a stipulation between the fiscal and the defendant's counsel, or, in other words, that the court erred in admitting the testimony taken in the Iyon case, and cities in support of this alleged error the case of the United States vs. Pobre (11 Phil. Rep., 51). On the other hand, the Attorney-General insists that no such error was committed for the reason, as he says, that the defendant waived his right to be confronted with and to crossexamine the witnesses against him, and in support of his position cites the following cases: U. S. vs. Donato (9 Phil. Rep., 701), U. S. vs. Castañeda (10 Phil Rep., 761), U. S. vs. Manlimos (11 Phil. Rep., 547).

In the case relied upon by counsel de oficio for the defendant, the fiscal and counsel for the accused in that case agreed that the internal-revenue agent and his companions would testify confirming the complaint in all of its parts; that the witnesses for the defense would declare that the alleged opium referred to in the complaint was ashes of the said drug, and that if the said article was found in the house of the accused, it was because the Chinaman Quin-quio, who was authorized to have it in his possession, had left it there and that the neighbors of the accused would declare that he was not in the habit of smoking opium. Upon this agreement the case was submitted to the court and the accused found guilty and sentenced accordingly. Upon appeal, this court said: The agreement entered into between the fiscal of Ilocos Norte and counsel for the defendant refers to facts which favor the defense and to others connected with the prosecution; no evidence whatever was adduced, nor was the testimony of the witnesses mentioned in the agreement taken. This is a practice which is not authorized and defeats the purpose of the criminal law, being an open violation of the rules of criminal procedure, and particularly of the provisions of section 32 of General Orders, No. 58. The judgment was set aside and a new trial ordered. In the first case cited by the Attorney-General, only one witness was examined, but several agreements were made between the representative of the Government and the attorneys for the defense, to the effect that certain witnesses would testify affirming the declaration of the witness for the prosecution, and other witnesses would testify to certain facts which would be material to the defense. The declarations of the witness and of the accused were received verbally. The accused were all convicted and appealed. The Supreme Court said: This court, however, upon attempting to review the evidence, has found it impossible to do so because of the reprehensible abuse committed in resorting to such unlawful agreements, thereby frustrating the purposes of the law, which has been openly violated. The judgment appealed from was declared null and void and a new trial ordered. In the second case, the defendant Castañeda, as postmaster, was short in his accounts. He stated in defense that the shortage was caused by the theft of funds by one Velleros. Certain witnesses for the defense failed to appear and counsels agreed as to the nature of the testimony which they would have given. As the accused knew the thief but made no complaint no effort to recover the money, his testimony was considered unworthy of belief, and sell as all the defaulting witnesses were favorable to the defendant and counsel for the Government accepted his statements as to the nature of the proposed evidence as true, such non-appearance was held insufficient for granting a new trial, and the judgment was affirmed. In the third case, the defendant Manlimos was convicted of the crime of estafa and sentenced accordingly. Five witnesses testified, two for the prosecution and three — including the defendant — for the defense. A certain agreement was entered into between the fiscal and counsel for the accused. With reference to this agreement, this Supreme Court said: We can not accept as the full equivalent of proof on oath the agreement of counsel that, if certain additional witnesses were produced and sworn on behalf of the prosecution as well

as of the defense, they would testify as the actual witnesses had done as to the very substance of the issue. The defendant was acquitted of the crime charged, not upon the ground that this agreement was entered into, but upon a review of the record the court found that the offense, if one had been committed, did not constitute estafa. It is clear that the doctrine set forth in these cases is not applicable to the case at bar. In the case cited by the counsel for the appellant, no testimony whatever was taken, while in the case at bar we have before us not only the testimony of the appellant himself, but also all of the evidence taken in the case against Iyon. In the first case cited by the AttorneyGeneral, this court could not review the testimony taken because such testimony, with the exception of one witness, was not before it. In the second case, some of the witnesses were examined and other witnesses for the accused failed to appear, but he expressly waived his right to present these witnesses, and the Government, having accepted the statements as to the nature of the proposed evidence as true, thereby waived its right to cross-examine the absent witnesses. This case might be applicable to the case at bar if no other question presented itself except that raised by the Attorney-General. In the last case, while it is true that this court said that it could not accept as the full equivalent of proof on oath that if certain witnesses were produced they would testify as the actual witnesses had done as to the very substance of the issue, yet the decision did not rest upon this ground, but upon the ground that if a crime had been committed at all it was not that of estafa. In the case under consideration we not only have before us, as we have said, the testimony of the defendant himself but also of the evidence taken in the case against Iyon, and furthermore, there is in this record, as above quoted, an express waiver on the part of the defendant through his attorney of his constitutional right to be confronted with and cross-examine the witnesses against him. That a defendant in criminal prosecution may waive the benefit of the constitutional privilege of being confronted with the benefit of the constitutional privilege of being confronted with the witnesses against him is, we think, well settled. (12 Cyc., 545, and a long array of cases cited therein.) Again, the evidence complained of was admitted by the court on the express stipulation and agreement of the parties made in open court. Its admission thereupon became an established fact. Its admissibility ceased to be a question. It could not be raised here any more than it could in the court below. The only question remaining relative to such evidence is its probative force and value. By reason of the stipulation and agreement of the attorney de oficio for the defendant and the fiscal, the court made no ruling or decision on the admissibility of the evidence. There being no ruling or decision of the court, there could be nothing in reference to this question to review. Judge Cooley, speaking for a majority of the court in the case of the People vs. Murray (52 Mich., 290, 291), said: The respondent stands convicted of the murder of one Emery at Chesaning. The homicide took place while a circus was on exhibition at the place. I shall notice in this case only such errors assigned as, after the full presentation of the facts by Mr. Justice Sherwood, seem essential. A chief ground of error relied upon is that the prosecution was allowed to put in evidence certain depositions taken out of court of witnesses not present at the trial. The facts seem

to be that the attorneys for the respective parties stipulated to put in certain depositions on both sides, and they were put in accordingly. This, it is said, was in violation of the respondent's constitutional right to be confronted with his witnesses. But the court made no ruling in the matter; what was done was voluntarily done by the parties; the defendant had the benefit of the stipulation, and, for aught we can know, it may have been made chiefly in his interest. But however that may be, when the court has made no ruling we can have nothing to review. This court can not relieve a party from a criminal conviction because of his own voluntary action on the trial. It is said the counsel for respondent was counsel assigned to him by the court and may not have been counsel of his choice. We do not know how the fact was, but we know it is customary to allow the respondent to choose for himself. But however that may be, the counsel acted for the respondent without objection, and without objection, and without complaint that he did not do the best he could for him. The defendant undoubtedly had a constitutional right to be confronted with his witnesses. He waived that right in this case, apparently for his own supposed advantage and to obtain evidence on his behalf. It would have been a mere impertinence for the court to have inferred and precluded this stipulation being acted upon. But it would have been more than an impertinence; it would have been gross error. And it would be palpable usurpation of power for us now to set aside a judgment for a neglect of the court not at the time complained of, but in respect to something where any other course would have been plain error. Under the view taken by the respondent it would seem that, when the evidence had been obtained under this stipulation, the court was put in position where it was impossible to avoid error; for if the evidence was received, he might complain, as he does now, that his constitutional right was violated, and if the court refused to received it when he was consenting, the respondent would be entitled to have the conviction set aside for that error. I shall always be ready to preserve in its integrity every constitutional right; but I do not understand that the Constitution is an instrument to play fast and loose with in criminal cases any more then in any other, or that it is the business of courts to be astute in the discovery of technical difficulties in the punishment of parties for their criminal conduct. The record in the Iyon case was admitted as evidence on the express stipulation of the parties. The court below had no discretion. To hold that that evidence was inadmissible puts the trial court in the position described by Judge Cooley in the quotation above. If the court admitted the evidence it was subject, according to the theory of counsel for the appellant, to be charged with violating the defendant's constitutional right to be confronted with the witnesses against him and of admitting incompetent evidence. If the court had excluded such evidence, the defendant would have been entitled to have the conviction set aside for error involved in excluding from the case evidence whose admissibility was agreed upon by all, and which the defendant himself, through his counsel, expressly asked to have admitted as essential to his proper defense. In other words, the court would be reversed if it did and reversed if it did not. If the judgment appealed from is to be reversed and the case remanded for a new trial, it must be upon the ground of the disqualification of the attorney de oficio who represented the appellant in the court below. If the attorney was in fact disqualified, this disqualification would not effect the legality of any particular step in the proceedings alone, but would touch equally every part of the case from its inception to its close. If an

attorney is disqualified, it is presumed that he can not properly advise the accused as to his rights; or as to how he should plead; or present testimony of his own; or sum up the case finally to the court; or do anything in the conduct of the case from beginning to end. To determine this question it is necessary to inquire whether or not the attorney changed or had an opportunity to change his position; that is, was his position when he was assisting the prosecution in the case against Iyon inconsistent or could it have been made so with of his being attorney for this defendant? It must be borne in mind that the attorney was appointed by the court to present the appellant, and we understand that it is customary in this country for the court, through its clerk, to appoint attorneys to defend paupers charged with the criminal offenses from a roster kept by the clerk. This method is followed in order to divide the work equally among the attorneys, and we see no objection to such a method. But generally, the attorney appointed is not selected by the defendant, who is given no choice in the matter. The defendant must accept whosoever is designated. These are the facts with reference to the question under consideration in the case at bar: Iyon killed Ando. Calixto, the appellant, killed Candoy. Candoy, who was killed first, was the father of Iyon. Ando was a brother-in-law of Calixto. The trouble which resulted in the death of these two men arose in the house of Candoy. Ando and his brother-in-law and their companions were in Candoy's house on the night of the trouble by invitation. The attorney's position in assisting the prosecution in the case against Iyon was that of showing that Iyon was the guilty party and that the killing of Ando was not justifiable. In defending Calixto (the defendant), it was the duty of attorney to show, if it could be done, that Candoy was the aggressor and not Calixto. The testimony which was used to convict Iyon was incorporated by stipulation of the parties bodily into the case against this appellant. In addition, the defendant himself testified. This constitutes the evidence in the present case. An analysis of the testimony taken in the Iyon case shows that there was in fact nothing in that testimony presented by the prosecution upon which a conviction of this appellant could be based. It was the testimony of the defense in that case which convicted this appellant. The record in the Iyon case shows that there was no attempt on the part of Attorney Lozano to cross-examine the witnesses presented by the defendant in that case from the viewpoint of the defense in the case at bar. The first time that the theory of the appellant was squarely before the court was when he himself took the stand. The record does not disclose whether Mr. Lozano was appointed to represent this appellant before or after the trial of Iyon. If he was appointed before that trial, he did not, as we have said, develop by cross-examination of the defendant's witnesses in that case against Iyon the theory of self-defense which was the plea of this defendant. Had the attorney attempted to develop the theory of self-defense of Calixto, the court might have held that that would have been improper in the case against Iyon. Again, if the lawyer had been appointed before the trial of Iyon, he could have consulted (and we do not know whether he did or not) with Calixto and obtained from him all the facts about how the killing occurred, and the defense of this appellant. This knowledge probably could have been used to advantage in the prosecution of Iyon and to the prejudice of the appellant. At least, there was an opportunity to do so. If the attorney was appointed after the Iyon case was closed, he would have had no reason, of course, for developing the testimony in the case against Iyon which would have aided the defense of the appellant. Viewed from any standpoint, there was an opportunity for the attorney to have acted in double capacity. The appearance of such injustice to clients must be avoided. Courts will give approval in no agree to the conduct of Mr. Lozano. He should have called the attention of the trial court to these facts, and the court would then no doubt have relieved him as attorney de oficio for the appellant. Public policy prohibits him from defending the appellant under these circumstances; the reason for this prohibition is found in the relation of attorney and client, which is one of confidence and trust in the very highest degree. An attorney becomes familiar with all the facts connected with his client's cause. He learns from his

client the weak points of the case as well as the strong ones. Such knowledge must be considered scared and guarded with great care. No opportunity must be given attorneys to take advantage of the secrets of clients obtained while the confidential relation of attorney and client exists. The members of the profession must have the fullest confidence of their clients. If it may be abused, the profession will suffer by the loss of the confidence of the people. The good of the profession as well as the safety of the clients demands a strict recognition and enforcement of the rules governing the relation of attorney and client. We believe there are sufficient reasons in this case under the facts and circumstances as presented to hold that Mr. Lozano was disqualified and could not legally represent the defendant in the court below. The judgment appealed from must be set aside and a new trial ordered. Arellano, C.J., Torres, Mapa and Johnson, JJ., concur. Carson and Moreland, JJ., concur on the ground last set forth.

G.R. No. L-961

September 21, 1949 (84 Phil 569)

BLANDINA GAMBOA HILADO, petitioner, vs. JOSE GUTIERREZ DAVID, VICENTE J. FRANCISCO, JACOB ASSAD and SELIM JACOB ASSAD, respondents. Delgado, Dizon and Flores for petitioner. Vicente J. Francisco for respondents. TUASON, J.: It appears that on April 23, 1945, Blandina Gamboa Hilado brought an action against Selim Jacob Assad to annul the sale of several houses and lot executed during the Japanese occupation by Mrs. Hilado's now deceased husband. On May 14, Attorneys Ohnick, Velilla and Balonkita filed an answer on behalf of the defendant; and on June 15, Attorneys Delgado, Dizon, Flores and Rodrigo registered their appearance as counsel for the plaintiff. On October 5, these attorneys filed an amended complaint by including Jacob Assad as party defendant.

On January 28, 1946, Attorney Francisco entered his appearance as attorney of record for the defendant in substitution for Attorney Ohnick, Velilla and Balonkita who had withdrawn from the case. On May 29, Attorney Dizon, in the name of his firm, wrote Attorney Francisco urging him to discontinue representing the defendants on the ground that their client had consulted with him about her case, on which occasion, it was alleged, "she turned over the papers" to Attorney Francisco, and the latter sent her a written opinion. Not receiving any answer to this suggestion, Attorney Delgado, Dizon, Flores and Rodrigo on June 3, 1946, filed a formal motion with the court, wherein the case was and is pending, to disqualify Attorney Francisco. Attorney Francisco's letter to plaintiff, mentioned above and identified as Exhibit A, is in full as follows: VICENTE J. FRANCISCO Attorney-at-Law 1462 Estrada, Manila July 13, 1945. Mrs. Blandina Gamboa Hilado Manila, Philippines My dear Mrs. Hilado: From the papers you submitted to me in connection with civil case No. 70075 of the Court of First Instance of Manila, entitled "Blandina Gamboa Hilado vs. S. J. Assad," I find that the basic facts which brought about the controversy between you and the defendant therein are as follows: (a) That you were the equitable owner of the property described in the complaint, as the same was purchased and/or built with funds exclusively belonging to you, that is to say, the houses and lot pertained to your paraphernal estate; (b) That on May 3, 1943, the legal title to the property was with your husband, Mr. Serafin P. Hilado; and (c) That the property was sold by Mr. Hilado without your knowledge on the aforesaid date of May 3, 1943. Upon the foregoing facts, I am of the opinion that your action against Mr. Assad will not ordinarily prosper. Mr. Assad had the right to presume that your husband had the legal right to dispose of the property as the transfer certificate of title was in his name. Moreover, the price of P110,000 in Japanese military notes, as of May 3, 1943, does not quite strike me as so grossly inadequate as to warrant the annulment of the sale. I believe, lastly, that the transaction cannot be avoided merely because it was made during the Japanese occupation, nor on the simple allegation that the real purchaser was not a citizen of the Philippines. On his last point, furthermore, I expect that you will have great difficulty in proving that the real purchaser was other than Mr. Assad, considering that death has already sealed your husband's lips and he cannot now testify as to the circumstances of the sale.

For the foregoing reasons, I regret to advise you that I cannot appear in the proceedings in your behalf. The records of the case you loaned to me are herewith returned. Yours very truly, (Sgd.) VICENTE J. FRANCISCO VJF/Rag. In his answer to plaintiff's attorneys' complaint, Attorney Francisco alleged that about May, 1945, a real estate broker came to his office in connection with the legal separation of a woman who had been deserted by her husband, and also told him (Francisco) that there was a pending suit brought by Mrs. Hilado against a certain Syrian to annul the sale of a real estate which the deceased Serafin Hilado had made to the Syrian during the Japanese occupation; that this woman asked him if he was willing to accept the case if the Syrian should give it to him; that he told the woman that the sales of real property during the Japanese regime were valid even though it was paid for in Japanese military notes; that this being his opinion, he told his visitor he would have no objection to defending the Syrian; That one month afterwards, Mrs. Hilado came to see him about a suit she had instituted against a certain Syrian to annul the conveyance of a real estate which her husband had made; that according to her the case was in the hands of Attorneys Delgado and Dizon, but she wanted to take it away from them; that as he had known the plaintiff's deceased husband he did not hesitate to tell her frankly that hers was a lost case for the same reason he had told the broker; that Mrs. Hilado retorted that the basis of her action was not that the money paid her husband was Japanese military notes, but that the premises were her private and exclusive property; that she requested him to read the complaint to be convinced that this was the theory of her suit; that he then asked Mrs. Hilado if there was a Torrens title to the property and she answered yes, in the name of her husband; that he told Mrs. Hilado that if the property was registered in her husband's favor, her case would not prosper either; That some days afterward, upon arrival at his law office on Estrada street, he was informed by Attorney Federico Agrava, his assistant, that Mrs. Hilado had dropped in looking for him and that when he, Agrava, learned that Mrs. Hilado's visit concerned legal matters he attended to her and requested her to leave the "expediente" which she was carrying, and she did; that he told Attorney Agrava that the firm should not handle Mrs. Hilado's case and he should return the papers, calling Agrava's attention to what he (Francisco) already had said to Mrs. Hilado; That several days later, the stenographer in his law office, Teofilo Ragodon, showed him a letter which had been dictated in English by Mr. Agrava, returning the "expedients" to Mrs. Hilado; that Ragodon told him (Attorney Francisco) upon Attorney Agrava's request that Agrava thought it more proper to explain to Mrs. Hilado the reasons why her case was rejected; that he forthwith signed the letter without reading it and without keeping it for a minute in his possession; that he never saw Mrs. Hilado since their last meeting until she talked to him at the Manila Hotel about a proposed extrajudicial settlement of the case; That in January, 1946, Assad was in his office to request him to handle his case stating that his American lawyer had gone to the States and left the case in the hands of other attorneys; that he accepted the retainer and on January 28, 1946, entered his appearance.

Attorney Francisco filed an affidavit of stenographer Ragodon in corroboration of his answer. The judge trying the case, Honorable Jose Gutierrez David, later promoted to the Court of Appeals, dismissed the complaint. His Honor believed that no information other than that already alleged in plaintiff's complaint in the main cause was conveyed to Attorney Francisco, and concluded that the intercourse between the plaintiff and the respondent did not attain the point of creating the relation of attorney and client. Stripped of disputed details and collateral matters, this much is undoubted: That Attorney Francisco's law firm mailed to the plaintiff a written opinion over his signature on the merits of her case; that this opinion was reached on the basis of papers she had submitted at his office; that Mrs. Hilado's purpose in submitting those papers was to secure Attorney Francisco's professional services. Granting the facts to be no more than these, we agree with petitioner's counsel that the relation of attorney and client between Attorney Francisco and Mrs. Hilado ensued. The following rules accord with the ethics of the legal profession and meet with our approval: In order to constitute the relation (of attorney and client) a professional one and not merely one of principal and agent, the attorneys must be employed either to give advice upon a legal point, to prosecute or defend an action in court of justice, or to prepare and draft, in legal form such papers as deeds, bills, contracts and the like. (Atkinson vs. Howlett, 11 Ky. Law Rep. (abstract), 364; cited in Vol. 88, A. L. R., p. 6.) To constitute professional employment it is not essential that the client should have employed the attorney professionally on any previous occasion. . . . It is not necessary that any retainer should have been paid, promised, or charged for; neither is it material that the attorney consulted did not afterward undertake the case about which the consultation was had. If a person, in respect to his business affairs or troubles of any kind, consults with his attorney in his professional capacity with the view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces in such consultation, then the professional employment must be regarded as established. . . . (5 Jones Commentaries on Evidence, pp. 4118-4119.) An attorney is employed-that is, he is engaged in his professional capacity as a lawyer or counselor-when he is listening to his client's preliminary statement of his case, or when he is giving advice thereon, just as truly as when he is drawing his client's pleadings, or advocating his client's cause in open court. (Denver Tramway Co. vs. Owens, 20 Colo., 107; 36 P., 848.) Formality is not an essential element of the employment of an attorney. The contract may be express or implied and it is sufficient that the advice and assistance of the attorney is sought and received, in matters pertinent to his profession. An acceptance of the relation is implied on the part of the attorney from his acting in behalf of his client in pursuance of a request by the latter. (7 C. J. S., 848-849; see Hirach Bros. and Co. vs. R. E. Kennington Co., 88 A. L. R., 1.) Section 26 (e), Rule 123 of the Rules of Court provides that "an attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment;" and section 19 (e) of Rule 127 imposes upon an attorney the duty "to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client." There is no law or provision

in the Rules of Court prohibiting attorneys in express terms from acting on behalf of both parties to a controversy whose interests are opposed to each other, but such prohibition is necessarily implied in the injunctions above quoted. (In re De la Rosa, 27 Phil., 258.) In fact the prohibition derives validity from sources higher than written laws and rules. As has been aptly said in In re Merron, 22 N. M., 252, L.R.A., 1917B, 378, "information so received is sacred to the employment to which it pertains," and "to permit it to be used in the interest of another, or, worse still, in the interest of the adverse party, is to strike at the element of confidence which lies at the basis of, and affords the essential security in, the relation of attorney and client." That only copies of pleadings already filed in court were furnished to Attorney Agrava and that, this being so, no secret communication was transmitted to him by the plaintiff, would not vary the situation even if we should discard Mrs. Hilado's statement that other papers, personal and private in character, were turned in by her. Precedents are at hand to support the doctrine that the mere relation of attorney and client ought to preclude the attorney from accepting the opposite party's retainer in the same litigation regardless of what information was received by him from his first client. The principle which forbids an attorney who has been engaged to represent a client from thereafter appearing on behalf of the client's opponent applies equally even though during the continuance of the employment nothing of a confidential nature was revealed to the attorney by the client. (Christian vs. Waialua Agricultural Co., 30 Hawaii, 553, Footnote 7, C. J. S., 828.) Where it appeared that an attorney, representing one party in litigation, had formerly represented the adverse party with respect to the same matter involved in the litigation, the court need not inquire as to how much knowledge the attorney acquired from his former during that relationship, before refusing to permit the attorney to represent the adverse party. (Brown vs. Miller, 52 App. D. C. 330; 286, F. 994.) In order that a court may prevent an attorney from appearing against a former client, it is unnecessary that the ascertain in detail the extent to which the former client's affairs might have a bearing on the matters involved in the subsequent litigation on the attorney's knowledge thereof. (Boyd vs. Second Judicial Dist. Court, 274 P., 7; 51 Nev., 264.) This rule has been so strictly that it has been held an attorney, on terminating his employment, cannot thereafter act as counsel against his client in the same general matter, even though, while acting for his former client, he acquired no knowledge which could operate to his client's disadvantage in the subsequent adverse employment. (Pierce vs. Palmer [1910], 31 R. I., 432; 77 Atl., 201, Ann. Cas., 1912S, 181.) Communications between attorney and client are, in a great number of litigations, a complicated affair, consisting of entangled relevant and irrelevant, secret and well known facts. In the complexity of what is said in the course of the dealings between an attorney and a client, inquiry of the nature suggested would lead to the revelation, in advance of the trial, of other matters that might only further prejudice the complainant's cause. And the theory would be productive of other un salutary results. To make the passing of confidential communication a condition precedent; i.e., to make the employment conditioned on the scope and character of the knowledge acquired by an attorney in determining his right to change sides, would not enhance the freedom of litigants, which is to be sedulously fostered, to consult with lawyers upon what they believe are their rights in litigation. The condition would of necessity call for an investigation of what information

the attorney has received and in what way it is or it is not in conflict with his new position. Litigants would in consequence be wary in going to an attorney, lest by an unfortunate turn of the proceedings, if an investigation be held, the court should accept the attorney's inaccurate version of the facts that came to him. "Now the abstinence from seeking legal advice in a good cause is by hypothesis an evil which is fatal to the administration of justice." (John H. Wigmore's Evidence, 1923, Section 2285, 2290, 2291.) Hence the necessity of setting down the existence of the bare relationship of attorney and client as the yardstick for testing incompatibility of interests. This stern rule is designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to protect the honest lawyer from unfounded suspicion of unprofessional practice. (Strong vs. Int. Bldg., etc.; Ass'n, 183 Ill., 97; 47 L.R.A., 792.) It is founded on principles of public policy, on good taste. As has been said in another case, the question is not necessarily one of the rights of the parties, but as to whether the attorney has adhered to proper professional standard. With these thoughts in mind, it behooves attorneys, like Caesar's wife, not only to keep inviolate the client's confidence, but also to avoid the appearance of treachery and double-dealing. Only thus can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of justice. So without impugning respondent's good faith, we nevertheless can not sanction his taking up the cause of the adversary of the party who had sought and obtained legal advice from his firm; this, not necessarily to prevent any injustice to the plaintiff but to keep above reproach the honor and integrity of the courts and of the bar. Without condemning the respondents conduct as dishonest, corrupt, or fraudulent, we do believe that upon the admitted facts it is highly in expedient. It had the tendency to bring the profession, of which he is a distinguished member, "into public disrepute and suspicion and undermine the integrity of justice." There is in legal practice what called "retaining fee," the purpose of which stems from the realization that the attorney is disabled from acting as counsel for the other side after he has given professional advice to the opposite party, even if he should decline to perform the contemplated services on behalf of the latter. It is to prevent undue hardship on the attorney resulting from the rigid observance of the rule that a separate and independent fee for consultation and advice was conceived and authorized. "A retaining fee is a preliminary fee given to an attorney or counsel to insure and secure his future services, and induce him to act for the client. It is intended to remunerate counsel for being deprived, by being retained by one party, of the opportunity of rendering services to the other and of receiving pay from him, and the payment of such fee, in the absence of an express understanding to the contrary, is neither made nor received in payment of the services contemplated; its payment has no relation to the obligation of the client to pay his attorney for the services which he has retained him to perform." (7 C.J.S., 1019.) The defense that Attorney Agrava wrote the letter Exhibit A and that Attorney Francisco did not take the trouble of reading it, would not take the case out of the interdiction. If this letter was written under the circumstances explained by Attorney Francisco and he was unaware of its contents, the fact remains that his firm did give Mrs. Hilado a formal professional advice from which, as heretofore demonstrated, emerged the relation of attorney and client. This letter binds and estop him in the same manner and to the same degree as if he personally had written it. An information obtained from a client by a member or assistant of a law firm is information imparted to the firm. (6 C. J., 628; 7 C. J. S., 986.) This is not a mere fiction or an arbitrary rule; for such member or assistant, as in our case, not only acts in the name and interest of the firm, but his information, by the

nature of his connection with the firm is available to his associates or employers. The rule is all the more to be adhered to where, as in the present instance, the opinion was actually signed by the head of the firm and carries his initials intended to convey the impression that it was dictated by him personally. No progress could be hoped for in "the public policy that the client in consulting his legal adviser ought to be free from apprehension of disclosure of his confidence," if the prohibition were not extended to the attorney's partners, employers or assistants. The fact that petitioner did not object until after four months had passed from the date Attorney Francisco first appeared for the defendants does not operate as a waiver of her right to ask for his disqualification. In one case, objection to the appearance of an attorney was allowed even on appeal as a ground for reversal of the judgment. In that case, in which throughout the conduct of the cause in the court below the attorney had been suffered so to act without objection, the court said: "We are all of the one mind, that the right of the appellee to make his objection has not lapsed by reason of failure to make it sooner; that professional confidence once reposed can never be divested by expiration of professional employment." (Nickels vs. Griffin, 1 Wash. Terr., 374, 321 A. L. R. 1316.) The complaint that petitioner's remedy is by appeal and not by certiorari deserves scant attention. The courts have summary jurisdiction to protect the rights of the parties and the public from any conduct of attorneys prejudicial to the administration of the justice. The summary jurisdiction of the courts over attorneys is not confined to requiring them to pay over money collected by them but embraces authority to compel them to do whatever specific acts may be incumbent upon them in their capacity of attorneys to perform. The courts from the general principles of equity and policy, will always look into the dealings between attorneys and clients and guard the latter from any undue consequences resulting from a situation in which they may stand unequal. The courts acts on the same principles whether the undertaking is to appear, or, for that matter, not to appear, to answer declaration, etc. (6 C.J., 718 C.J.S., 1005.) This summary remedy against attorneys flows from the facts that they are officers of the court where they practice, forming a part of the machinery of the law for the administration of justice and as such subject to the disciplinary authority of the courts and to its orders and directions with respect to their relations to the court as well as to their clients. (Charest vs. Bishop, 137 Minn., 102; 162, N.W., 1062, Note 26, 7 C. J. S., 1007.) Attorney stand on the same footing as sheriffs and other court officers in respect of matters just mentioned. We conclude therefore that the motion for disqualification should be allowed. It is so ordered, without costs. Moran, C.J., Ozaeta, Paras, Feria, Bengzon, Padilla, Montemayor, Reyes and Torres, JJ., concur.

A.C. No. 6711

July 3, 2007

MA. LUISA HADJULA, complainant, vs. ATTY. ROCELES F. MADIANDA, respondent. DECISION GARCIA, J.: Under consideration is Resolution No. XVI-2004-472 of the Board of Governors, Integrated Bar of the Philippines (IBP), relative to the complaint for disbarment filed by herein complainant Ma. Luisa Hadjula against respondent Atty. Roceles F. Madianda. The case started when, in an AFFIDAVIT-COMPLAINT1 bearing date September 7, 2002 and filed with the IBP Commission on Bar Discipline, complainant charged Atty. Roceles F. Madianda with violation of Article 2092 of the Revised Penal Code and Canon Nos. 15.02 and 21.02 of the Code of Professional Responsibility. In said affidavit-complaint, complainant alleged that she and respondent used to be friends as they both worked at the Bureau of Fire Protection (BFP) whereat respondent was the Chief Legal Officer while she was the Chief Nurse of the Medical, Dental and Nursing Services. Complainant claimed that, sometime in 1998, she approached respondent for some legal advice. Complainant further alleged that, in the course of their conversation which was supposed to be kept confidential, she disclosed personal secrets and produced copies of a marriage contract, a birth certificate and a baptismal certificate, only to be informed later by the respondent that she (respondent) would refer the matter to a lawyer friend. It was malicious, so complainant states, of respondent to have refused handling her case only after she had already heard her secrets. Continuing, complainant averred that her friendship with respondent soured after her filing, in the later part of 2000, of criminal and disciplinary actions against the latter. What, per complainant's account, precipitated the filing was when respondent, then a member of the BFP promotion board, demanded a cellular phone in exchange for the complainant's promotion. According to complainant, respondent, in retaliation to the filing of the aforesaid actions, filed a COUNTER COMPLAINT3 with the Ombudsman charging her (complainant) with violation of Section 3(a) of Republic Act No. 3019,4 falsification of public documents and

immorality, the last two charges being based on the disclosures complainant earlier made to respondent. And also on the basis of the same disclosures, complainant further stated, a disciplinary case was also instituted against her before the Professional Regulation Commission. Complainant seeks the suspension and/or disbarment of respondent for the latter's act of disclosing personal secrets and confidential information she revealed in the course of seeking respondent's legal advice. In an order dated October 2, 2002, the IBP Commission on Bar Discipline required respondent to file her answer to the complaint. In her answer, styled as COUNTER-AFFIDAVIT,5 respondent denied giving legal advice to the complainant and dismissed any suggestion about the existence of a lawyer-client relationship between them. Respondent also stated the observation that the supposed confidential data and sensitive documents adverted to are in fact matters of common knowledge in the BFP. The relevant portions of the answer read: 5. I specifically deny the allegation of F/SUPT. MA. LUISA C. HADJULA in paragraph 4 of her AFFIDAVIT-COMPLAINT for reason that she never WAS MY CLIENT nor we ever had any LAWYER-CLIENT RELATIONSHIP that ever existed ever since and that never obtained any legal advice from me regarding her PERSONAL PROBLEMS or PERSONAL SECRETS. She likewise never delivered to me legal documents much more told me some confidential information or secrets. That is because I never entertain LEGAL QUERIES or CONSULTATION regarding PERSONAL MATTERS since I know as a LAWYER of the Bureau of Fire Protection that I am not allowed to privately practice law and it might also result to CONFLICT OF INTEREST. As a matter of fact, whenever there will be PERSONAL MATTERS referred to me, I just referred them to private law practitioners and never entertain the same, NOR listen to their stories or examine or accept any document. 9. I specifically deny the allegation of F/SUPT. MA. LUISA C. HADJULA in paragraph 8 of her AFFIDAVIT-COMPLAINT, the truth of the matter is that her ILLICIT RELATIONSHIP and her illegal and unlawful activities are known in the Bureau of Fire Protection since she also filed CHILD SUPPORT case against her lover … where she has a child …. Moreover, the alleged DOCUMENTS she purportedly have shown to me sometime in 1998, are all part of public records …. Furthermore, F/SUPT. MA. LUISA C. HADJULA, is filing the instant case just to get even with me or to force me to settle and withdraw the CASES I FILED AGAINST HER since she knows that she will certainly be DISMISSED FROM SERVICE, REMOVED FROM THE PRC ROLL and CRIMINALLY CONVICTED of her ILLICIT, IMMORAL, ILLEGAL and UNLAWFUL ACTS. On October 7, 2004, the Investigating Commissioner of the IBP Commission on Bar Discipline came out with a Report and Recommendation, stating that the information related by complainant to the respondent is "protected under the attorney-client privilege communication." Prescinding from this postulate, the Investigating Commissioner found the respondent to have violated legal ethics when she "[revealed] information given to her during a legal consultation," and accordingly recommended that respondent be reprimanded therefor, thus: WHEREFORE, premises considered, it is respectfully recommended that respondent Atty. Roceles Madianda be reprimanded for revealing the secrets of the complainant.

On November 4, 2004, the IBP Board of Governors issued Resolution No. XVI-2004-472 reading as follows: RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and , finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering the actuation of revealing information given to respondent during a legal consultation, Atty. Roceles Madianda is hereby REPRIMANDED. We AGREE with the recommendation and the premises holding it together. As it were, complainant went to respondent, a lawyer who incidentally was also then a friend, to bare what she considered personal secrets and sensitive documents for the purpose of obtaining legal advice and assistance. The moment complainant approached the then receptive respondent to seek legal advice, a veritable lawyer-client relationship evolved between the two. Such relationship imposes upon the lawyer certain restrictions circumscribed by the ethics of the profession. Among the burdens of the relationship is that which enjoins the lawyer, respondent in this instance, to keep inviolate confidential information acquired or revealed during legal consultations. The fact that one is, at the end of the day, not inclined to handle the client's case is hardly of consequence. Of little moment, too, is the fact that no formal professional engagement follows the consultation. Nor will it make any difference that no contract whatsoever was executed by the parties to memorialize the relationship. As we said in Burbe v. Magulta,6 A lawyer-client relationship was established from the very first moment complainant asked respondent for legal advise regarding the former's business. To constitute professional employment, it is not essential that the client employed the attorney professionally on any previous occasion. It is not necessary that any retainer be paid, promised, or charged; neither is it material that the attorney consulted did not afterward handle the case for which his service had been sought. It a person, in respect to business affairs or troubles of any kind, consults a lawyer with a view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces with the consultation, then the professional employments is established. Likewise, a lawyer-client relationship exists notwithstanding the close personal relationship between the lawyer and the complainant or the non-payment of the former's fees. Dean Wigmore lists the essential factors to establish the existence of the attorney-client privilege communication, viz: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.7 With the view we take of this case, respondent indeed breached his duty of preserving the confidence of a client. As found by the IBP Investigating Commissioner, the documents

shown and the information revealed in confidence to the respondent in the course of the legal consultation in question, were used as bases in the criminal and administrative complaints lodged against the complainant. The purpose of the rule of confidentiality is actually to protect the client from possible breach of confidence as a result of a consultation with a lawyer. The seriousness of the respondent's offense notwithstanding, the Court feels that there is room for compassion, absent compelling evidence that the respondent acted with ill-will. Without meaning to condone the error of respondent's ways, what at bottom is before the Court is two former friends becoming bitter enemies and filing charges and countercharges against each other using whatever convenient tools and data were readily available. Unfortunately, the personal information respondent gathered from her conversation with complainant became handy in her quest to even the score. At the end of the day, it appears clear to us that respondent was actuated by the urge to retaliate without perhaps realizing that, in the process of giving vent to a negative sentiment, she was violating the rule on confidentiality. IN VIEW WHEREOF, respondent Atty. Roceles F. Madianda is hereby REPRIMANDED and admonished to be circumspect in her handling of information acquired as a result of a lawyer-client relationship. She is also STERNLY WARNED against a repetition of the same or similar act complained of. SO ORDERED. Puno, (Chief Justice), Corona, Azcuna, Garcia, JJ., concur. Sandoval-Gutierrez,J., on leave. A.C. No. 5280 March 30, 2004 WILLIAM S. UY, complainant, vs. ATTY. FERMIN L. GONZALES, respondent. RESOLUTION AUSTRIA-MARTINEZ, J.: William S. Uy filed before this Court an administrative case against Atty. Fermin L. Gonzales for violation of the confidentiality of their lawyer-client relationship. The complainant alleges: Sometime in April 1999, he engaged the services of respondent lawyer to prepare and file a petition for the issuance of a new certificate of title. After confiding with respondent the circumstances surrounding the lost title and discussing the fees and costs, respondent prepared, finalized and submitted to him a petition to be filed before the Regional Trial Court of Tayug, Pangasinan. When the petition was about to be filed, respondent went to his (complainant’s) office at Virra Mall, Greenhills and demanded a certain amount from him other than what they had previously agreed upon. Respondent left his office after reasoning with him. Expecting that said petition would be filed, he was shocked to find out later that instead of filing the petition for the issuance of a new certificate of title, respondent filed a letter-complaint dated July 26, 1999 against him with the Office of the Provincial Prosecutor of Tayug, Pangasinan for "Falsification of Public Documents."1 The letter-complaint contained facts and circumstances pertaining to the transfer certificate of

title that was the subject matter of the petition which respondent was supposed to have filed. Portions of said letter-complaint read: The undersigned complainant accuses WILLIAM S. UY, of legal age, Filipino, married and a resident of 132-A Gilmore Street corner 9th Street, New Manila, Quezon City, Michael Angelo T. UY, CRISTINA EARL T. UY, minors and residents of the aforesaid address, Luviminda G. Tomagos, of legal age, married, Filipino and a resident of Carmay East, Rosales, Pangasinan, and F. Madayag, with office address at A12, 2/F Vira Mall Shopping Complex, Greenhills, San Juan, Metro Manila, for ESTAFA THRU FALSIFICATION OF PUBLIC DOCUMENTS, committed as follows: That on March 15, 1996, William S. Uy acquired by purchase a parcel of land consisting of 4.001 ha. for the amount of P100,000.00, Philippine Currency, situated at Brgy. Gonzales, Umingan, Pangasinan, from FERMIN C. GONZALES, as evidenced by a Deed of Sale executed by the latter in favor of the former…; that in the said date, William S. Uy received the Transfer Certificate of Title No. T-33122, covering the said land; That instead of registering said Deed of Sale and Transfer Certificate of Title (TCT) No. T33122, in the Register of Deeds for the purpose of transferring the same in his name, William S. Uy executed a Deed of Voluntary Land Transfer of the aforesaid land in favor of his children, namely, Michael Angelo T. Uy and Cristina Earl T. Uy, wherein William S. Uy made it appear that his said children are of legal age, and residents of Brgy. Gonzales, Umingan, Pangasinan, when in fact and in truth, they are minors and residents of Metro Manila, to qualify them as farmers/beneficiaries, thus placing the said property within the coverage of the Land Reform Program; That the above-named accused, conspiring together and helping one another procured the falsified documents which they used as supporting papers so that they can secure from the Office of the Register of Deeds of Tayug, Pangasinan, TCT No. T-5165 (Certificate of Land Ownership Award No. 004 32930) in favor of his above-named children. Some of these Falsified documents are purported Affidavit of Seller/Transferor and Affidavit of NonTenancy, both dated August 20, 1996, without the signature of affiant, Fermin C. Gonzales, and that on that said date, Fermin C. Gonzales was already dead… ; That on December 17, 1998, William S. Uy with deceit and evident intent to defraud undersigned, still accepted the amount of P340,000.00, from Atty. Fermin L. Gonzales, P300,000.00, in PNB Check No. 0000606, and P40,000.00, in cash, as full payment of the redemption of TCT No. 33122…knowing fully well that at that time the said TCT cannot be redeemed anymore because the same was already transferred in the name of his children; That William S. Uy has appropriated the amount covered by the aforesaid check, as evidenced by the said check which was encashed by him…; That inspite of repeated demands, both oral and in writing, William S. Uy refused and continue to refuse to deliver to him a TCT in the name of the undersigned or to return and repay the said P340,000.00, to the damage and prejudice of the undersigned.2 With the execution of the letter-complaint, respondent violated his oath as a lawyer and grossly disregarded his duty to preserve the secrets of his client. Respondent unceremoniously turned against him just because he refused to grant respondent’s request for additional compensation. Respondent’s act tarnished his reputation and social standing.3

In compliance with this Court’s Resolution dated July 31, 2000,4 respondent filed his Comment narrating his version, as follows: On December 17, 1998, he offered to redeem from complainant a 4.9 hectare-property situated in Brgy. Gonzales, Umingan, Pangasinan covered by TCT No. T-33122 which the latter acquired by purchase from his (respondent’s) son, the late Fermin C. Gonzales, Jr.. On the same date, he paid complainant P340,000.00 and demanded the delivery of TCT No. T-33122 as well as the execution of the Deed of Redemption. Upon request, he gave complainant additional time to locate said title or until after Christmas to deliver the same and execute the Deed of Redemption. After the said period, he went to complainant’s office and demanded the delivery of the title and the execution of the Deed of Redemption. Instead, complainant gave him photocopies of TCT No. T-33122 and TCT No. T-5165. Complainant explained that he had already transferred the title of the property, covered by TCT No.T-5165 to his children Michael and Cristina Uy and that TCT No. T-5165 was misplaced and cannot be located despite efforts to locate it. Wanting to protect his interest over the property coupled with his desire to get hold of TCT No. T-5165 the earliest possible time, he offered his assistance pro bono to prepare a petition for lost title provided that all necessary expenses incident thereto including expenses for transportation and others, estimated at P20,000.00, will be shouldered by complainant. To these, complainant agreed. On April 9, 1999, he submitted to complainant a draft of the petition for the lost title ready for signing and notarization. On April 14, 1999, he went to complainant’s office informing him that the petition is ready for filing and needs funds for expenses. Complainant who was with a client asked him to wait at the anteroom where he waited for almost two hours until he found out that complainant had already left without leaving any instructions nor funds for the filing of the petition. Complainant’s conduct infuriated him which prompted him to give a handwritten letter telling complainant that he is withdrawing the petition he prepared and that complainant should get another lawyer to file the petition. Respondent maintains that the lawyer-client relationship between him and complainant was terminated when he gave the handwritten letter to complainant; that there was no longer any professional relationship between the two of them when he filed the lettercomplaint for falsification of public document; that the facts and allegations contained in the letter-complaint for falsification were culled from public documents procured from the Office of the Register of Deeds in Tayug, Pangasinan.5 In a Resolution dated October 18, 2000, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.6 Commissioner Rebecca Villanueva-Maala ordered both parties to appear on April 2, 2003 before the IBP.7 On said date, complainant did not appear despite due notice. There was no showing that respondent received the notice for that day’s hearing and so the hearing was reset to May 28, 2003.8 On April 29, 2003, Commissioner Villanueva-Maala received a letter from one Atty. Augusto M. Macam dated April 24, 2003, stating that his client, William S. Uy, had lost interest in pursuing the complaint he filed against Atty. Gonzales and requesting that the case against Atty. Gonzales be dismissed.9 On June 2, 2003, Commissioner Villanueva-Maala recommendation, portions of which read as follows:

submitted

her

report

and

The facts and evidence presented show that when respondent agreed to handle the filing of the Verified Petition for the loss of TCT No. T-5165, complainant had confided to respondent the fact of the loss and the circumstances attendant thereto. When respondent filed the Letter-Complaint to the Office of the Special Prosecutor in Tayug, Pangasinan, he violated Canon 21 of the Code of Professional Responsibility which expressly provides that "A lawyer shall preserve the confidences and secrets of his client even after the attorney-client relation is terminated." Respondent cannot argue that there was no lawyer-client relationship between them when he filed the Letter-Complaint on 26 July 1999 considering that as early as 14 April 1999, or three (3) months after, respondent had already terminated complainant’s perceived lawyer-client relationship between them. The duty to maintain inviolate the client’s confidences and secrets is not temporary but permanent. It is in effect perpetual for "it outlasts the lawyer’s employment" (Canon 37, Code of Professional Responsibility) which means even after the relationship has been terminated, the duty to preserve the client’s confidences and secrets remains effective. Likewise Rule 21.02, Canon 21 of the Rules of Professional Responsibility provides that "A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with the full knowledge of the circumstances consents thereto." On 29 April 2003, the Commission received a letter dated 24 April 2003 from Atty. Augusto M. Macam, who claims to represent complainant, William S. Uy, alleging that complainant is no longer interested in pursuing this case and requested that the same be dismissed. The aforesaid letter hardly deserves consideration as proceedings of this nature cannot be "interrupted by reason of desistance, settlement, compromise, restitution, withdrawal of the charges, or failure of the complainant to prosecute the same. (Section 5, Rule 139-B, Rules of Court). Moreover, in Boliver vs. Simbol, 16 SCRA 623, the Court ruled that "any person may bring to this Court’s attention the misconduct of any lawyer, and action will usually be taken regardless of the interest or lack of interest of the complainant, if the facts proven so warrant." IN VIEW OF THE FOREGOING, we find respondent Atty. Fermin L. Gonzales to have violated the Code of Professional Responsibility and it is hereby recommended that he be SUSPENDED for a period of SIX (6) MONTHS from receipt hereof, from the practice of his profession as a lawyer and member of the Bar.10 On June 21, 2003, the Board of Governors of the Integrated Bar of the Philippines issued Resolution No. XV-2003-365, thus: RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution/Decision as Annex "A"; and finding the recommendation fully supported by the evidence on record and applicable laws and rules, and considering that respondent violated Rule 21.02, Canon 21 of the Canons of Professional Responsibility, Atty. Fermin L. Gonzales is hereby SUSPENDED from the practice of law for six (6) months.11 Preliminarily, we agree with Commissioner Villanueva-Maala that the manifestation of complainant Uy expressing his desire to dismiss the administrative complaint he filed against respondent, has no persuasive bearing in the present case. Sec. 5, Rule 139-B of the Rules of Court states that: ….

No investigation shall be interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of the charges, or failure of the complainant to prosecute the same. This is because: A proceeding for suspension or disbarment is not in any sense a civil action where the complainant is a plaintiff and the respondent lawyer is a defendant. Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are undertaken and prosecuted solely for the public welfare. They are undertaken for the purpose of preserving courts of justice from the official ministration of persons unfit to practice in them. The attorney is called to answer to the court for his conduct as an officer of the court. The complainant or the person who called the attention of the court to the attorney's alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper administration of justice. Hence, if the evidence on record warrants, the respondent may be suspended or disbarred despite the desistance of complainant or his withdrawal of the charges.12 Now to the merits of the complaint against the respondent. Practice of law embraces any activity, in or out of court, which requires the application of law, as well as legal principles, practice or procedure and calls for legal knowledge, training and experience.13 While it is true that a lawyer may be disbarred or suspended for any misconduct, whether in his professional or private capacity, which shows him to be wanting in moral character, in honesty, probity and good demeanor or unworthy to continue as an officer of the court,14 complainant failed to prove any of the circumstances enumerated above that would warrant the disbarment or suspension of herein respondent. Notwithstanding respondent’s own perception on the matter, a scrutiny of the records reveals that the relationship between complainant and respondent stemmed from a personal transaction or dealings between them rather than the practice of law by respondent. Respondent dealt with complainant only because he redeemed a property which complainant had earlier purchased from his (complainant’s) son. It is not refuted that respondent paid complainant P340,000.00 and gave him ample time to produce its title and execute the Deed of Redemption. However, despite the period given to him, complainant failed to fulfill his end of the bargain because of the alleged loss of the title which he had admitted to respondent as having prematurely transferred to his children, thus prompting respondent to offer his assistance so as to secure the issuance of a new title to the property, in lieu of the lost one, with complainant assuming the expenses therefor. As a rule, an attorney-client relationship is said to exist when a lawyer voluntarily permits or acquiesces with the consultation of a person, who in respect to a business or trouble of any kind, consults a lawyer with a view of obtaining professional advice or assistance. It is not essential that the client should have employed the attorney on any previous occasion or that any retainer should have been paid, promised or charged for, neither is it material that the attorney consulted did not afterward undertake the case about which the consultation was had, for as long as the advice and assistance of the attorney is sought and received, in matters pertinent to his profession.15 Considering the attendant peculiar circumstances, said rule cannot apply to the present case. Evidently, the facts alleged in the complaint for "Estafa Through Falsification of

Public Documents" filed by respondent against complainant were obtained by respondent due to his personal dealings with complainant. Respondent volunteered his service to hasten the issuance of the certificate of title of the land he has redeemed from complainant. Respondent’s immediate objective was to secure the title of the property that complainant had earlier bought from his son. Clearly, there was no attorney-client relationship between respondent and complainant. The preparation and the proposed filing of the petition was only incidental to their personal transaction. Canon 21 of the Code of Professional Responsibility reads: Canon 21 – A LAWYER SHALL PRESERVE THE CONFIDENCE AND SECRETS OF HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT RELATION IS TERMINATED. Rule 21.01 – A lawyer shall not reveal the confidences or secrets of his client except: a) When authorized by the client after acquainting him of the consequences of the disclosure; b) When required by law; c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action. The alleged "secrets" of complainant were not specified by him in his affidavit-complaint. Whatever facts alleged by respondent against complainant were not obtained by respondent in his professional capacity but as a redemptioner of a property originally owned by his deceased son and therefore, when respondent filed the complaint for estafa against herein complainant, which necessarily involved alleging facts that would constitute estafa, respondent was not, in any way, violating Canon 21. There is no way we can equate the filing of the affidavit-complaint against herein complainant to a misconduct that is wanting in moral character, in honesty, probity and good demeanor or that renders him unworthy to continue as an officer of the court. To hold otherwise would be precluding any lawyer from instituting a case against anyone to protect his personal or proprietary interests. WHEREFORE, Resolution No. XV-2003-365 dated June 21, 2003 of the Integrated Bar of the Philippines is REVERSED and SET ASIDE and the administrative case filed against Atty. Fermin L. Gonzales, docketed as A.C. No. 5280, is DISMISSED for lack of merit. SO ORDERED. Puno, (Chairman), Quisumbing, Callejo, Sr., and Tinga, JJ., concur.

March 23, 1929 (53 Phil 37) In re LUIS B. TAGORDA,

Duran & Lim for respondent. Attorney-General Jaranilla and Provincial Fiscal Jose for the Government. MALCOLM, J.: The respondent, Luis B. Tagorda, a practising attorney and a member of 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 translation, reads as follows: LUIS B. TAGORDA Attorney Notary Public CANDIDATE FOR THIRD MEMBER Province of Isabela (NOTE. — As notary public, he can execute for you a deed of sale for the purchase of land as required by the cadastral office; can renew lost documents of your animals; can make your application and final requisites for your homestead; and can execute any kind of affidavit. As a lawyer, he can help you collect your loans although long overdue, as well as any complaint for or against you. Come or write to him in his town, 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: ECHAGUE, ISABELA, September 18, 1928 MY DEAR LIEUTENANT: I would like to inform you of the approaching date for our induction into office as member of the Provincial Board, that is on the 16th of next month. Before my induction into office I should be very glad to hear your suggestions or recommendations for the good of the province in 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 suggestion or recommendation as you may desire. I also inform you that despite my membership in the Board I will have my residence here in Echague. I will attend the session of the Board of Ilagan, but will come back home on the following day here in Echague to live and serve with you as a lawyer and notary public. Despite my election as member of the Provincial Board, I will exercise my legal profession as a lawyer and notary public. In case you cannot see me at home on any week day, I assure you that you can always find me there on every Sunday. I also inform you that I will receive any work regarding preparations of documents of contract of sales and affidavits to be sworn to before me as notary public even on Sundays. I would like you all to be informed of this matter for the reason that some people are in the belief that my residence as member of the Board will be in Ilagan and that I would then be 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 attorneyat-law for the period of one month from April 1, 1929, Street, Johns, Romualdez, and Villa-Real, JJ., concur. Johnson, J., reserves his vote.

G.R. No. L-26868

February 27, 1969 (27 SCRA 106)

IN THE MATTER OF ATTORNEY LOPE E. ADRIANO Member of the Philippine Bar. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. REMIGIO ESTEBIA, accused-appellant. SANCHEZ, J.: Once again, this Court is confronted with the unwanted task of ascertaining whether certain acts and conduct of a member of the Bar deserve disciplinary action. The problem arose because of facts that follow: One Remigio Estebia was convicted of rape by the Court of First Instance of Samar, 1 and sentenced to suffer the capital punishment. His case came up before this Court on review. On December 14, 1966, Lope E. Adriano, a member of the Bar, was appointed by this Court as Estebia's counsel de oficio. In the notice of his appointment, Adriano was required to prepare and file his brief within thirty days from notice. He was advised that to enable him to examine the case, the record would be at his disposal. Adriano received this notice on December 20, 1966. On January 19, 1967, Adriano sought for a 30-day extension to file appellant's brief in mimeographed form. On February 18, Adriano again moved for a 20-day extension (his second). This was followed by a third filed on March 8, for fifteen days. And a fourth on March 27, also for fifteen days. He moved for a "last" extension of ten days on April 11. On April 21, he even sought a special extension of five days. All these motions for extension were granted. The brief was due on April 26, 1967. But no brief was filed. On September 25, 1967, Adriano was ordered to show cause within ten days from notice thereof why disciplinary action should not be taken against him for failure to file appellant's brief despite the lapse of the time therefor. Adriano did not bother to give any explanation. For failing to comply with the September 25, 1967 resolution, this Court, on October 3, 1968, resolved to impose upon him a fine of P500 payable to this Court within fifteen days from notice with a warning that upon further non-compliance with the said resolution of September 25, 1967 within the same period of fifteen days, "more drastic disciplinary action will be taken against him." Still, counsel paid no heed. Finally, on December 5, 1968, this Court ordered Adriano to show cause within ten days from notice thereof why he should not be suspended from the practice of law "for gross misconduct and violation of his oath of office as attorney." By express order of this

Court, the resolution was personally served upon him on December 18, 1968. He ignored the resolution. Upon the facts just narrated, we now pass judgment. 1. By specific authority, this Court may assign an attorney to render professional aid to a destitute appellant in a criminal case who is unable to employ an attorney. Correspondingly, a duty is imposed upon the lawyer so assigned "to render the required service." 2 A lawyer so appointed "as counsel for an indigent prisoner", our Canons of Professional Ethics demand, "should always exert his best efforts" in the indigent's behalf. 3 No excuse at all has been offered for non-presentation of appellant's brief. And yet, between December 20, 1966, when he received notice of his appointment, and December 5, 1968, when the last show cause order was issued by this Court, more than sufficient time was afforded counsel to prepare and file his brief de oficio. The death sentence below imposed was upon a plea of guilty. The record of the proceedings leading to the lower court's sentence consists of but 31 pages. Counsel had the record since January 19, 1967. In fact, in his third motion for extension of time, he manifested that the drafting of apellant's brief "is more than half-way through" and that "additional time is needed to review, effectuate the necessary corrections, put in final form and print the said brief." In his motion for fourth extension, he intimated that the preparation of the brief "is almost through" and that "additional time is needed to redraft and rehash some significant portions of said brief and have the same stencilled and mimeographed upon completion of a definitive text." His motion for last (fifth) extension of time came with the excuse that he "suddenly got sick (influenza) in the course of redrafting and rehashing some significant portions of said brief, which ailment hampered and interrupted his work thereon for sometime." Finally, in his "Special Extension of Time" to file brief, he claimed that he needed only five days from April 21, 1967 to put said brief in final form and have the same stencilled and mimeographed.lawphi1.nêt In the face of the fact that no brief has ever been filed, counsel's statements in his motions for extension have gone down to the level of empty and meaningless words; at best, have dubious claim to veracity. It is true that he is a court-appointed counsel. But we do say that as such counsel de oficio, he has as high a duty to the accused as one employed and paid by defendant himself. Because, as in the case of the latter, he must exercise his best efforts and professional ability in behalf of the person assigned to his care. His is to render effective assistance. The accused defendant expects of him due diligence, not mere perfunctory representation. We do not accept the paradox that responsibility is less where the defended party is poor. It has been said that courts should "have no hesitancy in demanding high standards of duty of attorneys appointed to defend indigent persons charged with crime." 4 For, indeed, a lawyer who is a vanguard in the bastion of justice is expected to have a bigger dose of social conscience and a little less of self interest. Because of this, a lawyer should remain ever conscious of his duties to the indigent he defends. Worth remembering is the 1905 case of In the matter of Jose Robles Lahesa. 5 He was counsel de oficio before the Supreme Court in two cases: one for robo en cuadrilla and the other for homicide. He failed to take any action in behalf of the defendants in both eases. This Court imposed upon him a fine of P200. Significant is the pronouncement we there made that: "This court should exact from its officers and subordinates the most

scrupulous performance of their official duties, especially when negligence in the performance of those duties necessarily result in delays in the prosecution of criminal cases and the detention of accused persons pending appeal." The validity of the foregoing observation remains to the present day. 6 It applies to the present case. Here, appellant was without brief since December 20, 1966. The effect of this long delay need not be essayed. We, therefore, find that Attorney Lope E. Adriano has violated his oath that he will conduct himself as a lawyer according to the best of his "knowledge and discretion". 2. An attorney's duty of prime importance is "[t]o observe and maintain the respect due to the courts of justice and judicial officers. The first Canon of the Code of Ethics enjoins a lawyer "to maintain towards the Courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance." By the oath of office, the lawyer undertook to "obey the laws as well as the legal orders of the duly constituted authorities." In People vs. Carillo, 8 this Court's pointed observation was that as an officer of the court, it is a lawyer's "sworn and moral duty to help build and not destroy unnecessarily that high esteem and regard towards the courts so essential to the proper administration of justice." Here, we have a clear case of an attorney whose acts exhibit willful dis-obedience of lawful orders of this Court. A cause sufficient is thus present for suspension or disbarment. 9 Counsel has received no less than three resolutions of this Court requiring compliance of its orders. To be recalled is that on September 25, 1967, this Court directed him, in ten days from notice, to show cause why disciplinary action should not be taken against him for his failure to file appellant's brief despite the lapse of the time therefor. Nothing was done by counsel for over a year. To impress upon counsel the gravity of his repeated failure to obey this Court's orders, on October 3,1968, a fine of P500 was clamped upon him. He was directed to pay that fine in ten days. He was in that order also required to file his brief in fifteen days. He was warned that more drastic disciplinary action would be taken upon his failure to do either. Still he remained unmoved. Then, this Court issued the peremptory order of December 5, 1968 commanding him to show cause within ten days from notice thereof why he should not be suspended from the practice of law for gross misconduct and violation of his oath of office. The Court made it certain that this order would reach him. He personally acknowledged receipt thereof. He has not paid the fine. He has done nothing. This is 1969. No brief has as yet been filed. And this, inspite of the fact that as early as March 27, 1967, when he moved for a fourth extension of time to file his brief de oficio, he represented to this Court that all that was needed was to redraft and to rehash some significant portions of the brief which was almost through and to have the same stencilled and mimeographed upon completion of a definitive text. Disrespect is here present. Contumacy is as patent. Disciplinary action is in order. Controlling here is the 1961 decision In the Matter of Atty. Filoteo Dianala Jo. 10 There, as here, counsel failed to file appellant's brief (in a criminal case) despite extensions of time granted him by this Court. Likewise, this Court issued a show-cause order why disciplinary action should not be taken against him. The explanation was considered unsatisfactory. This Court imposed a fine of P50 payable in ten days from notice. Attorney Dianala Jo did not pay that fine. Came the subsequent resolution of this Court advising him to pay the fine, otherwise, he would be arrested and confined to jam. This warning was not heeded. On November 18, 1960, the Court resolved to give him ten

days from notice within which to explain why he should not be suspended from the practice of law. Despite receipt of this notice, he did not care to explain his behaviour which this Court considered as "consumacy and unwillingness to comply with the lawful orders of this Court of which he is an officer or to conduct himself as a lawyer should, in violation of his oath of office." He was suspended from the practice of law for three months. In the present case, counsel's pattern of conduct, it would seem to us, reveals a propensity on the part of counsel to benumb appreciation of his obligation as counsel de oficio and of the courtesy and respect that should be accorded this Court. For the reasons given, we vote to suspend Attorney Lope E. Adriano from the practice of law throughout the Philippines for a period of one (1) year. Let a copy of this resolution be attached to the personal record, in this Court, of Lope E. Adriano as member of the Bar. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Capistrano, Teehankee and Barredo, JJ., concur.

G.R. No. L-29015 April 29, 1975

(63 SCRA 493)

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FELIPE MALUNSING, ET AL., defendants, MANUEL VILLEGAS, defendant-appellant. Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Isidro C. Borromeo and Solicitor Dominador L. Quiroz for plaintiff-appellee. Pablito Pielago for defendant-appellant.

FERNANDO, J.:ñé+.£ªwph!1 It was the failure of the lower court to respect the constitutional right to counsel, 1 so it is alleged, that is the basis for seeking the reversal of a conviction for murder of appellant Manuel Villegas. 2 There is more than ample support in the records for the charge thus hurled. As therein shown, Attorney Geronimo Pajarito explicitly manifested in the opening of the trial that appellant intimated to him that he had his own lawyer. 3 There was an admission that he did appear for him in the preliminary investigation but only because there was no other counsel. 4 Parenthetically, it may be observed that while in the original complaint there were two other accused with the same surname as the lawyer, Geremias Pajarito and Samuel Pajarito, after such preliminary investigation, no doubt due to the efforts of this particular lawyer, possibly a kinsman, they "were both discharged for lack of probable cause." 5 To resume, the lower court at this stage then asked whether the appellant notified Attorney Pajarito about his change of mind. When he answered in the negative, the Court stated: "All right, you have a lawyer who is appearing for you." 6 It is to the credit of such counsel that he had reservations about the matter, stating that as the

accused had manifested that he had dispensed with his services, his representation might later on be questioned. 7 The court was not sufficiently impressed. Appellant was informed that "the Court will give you a lawyer. Atty. Pajarito is appointed as counsel de oficio for you. We will proceed with the trial." 8 After marking it of record that he was appointed as such counsel de oficio, the attorney was asked whether he wanted to confer with appellant. This was the answer: "I think I know the case." 9 The Court then immediately proceeded with the hearing, having the first witness called. 10 In the decision itself, there is this meaningful admission by the court: "No evidence was presented for and in behalf of Manuel Villegas." 11 This is how the matter was characterized in the brief of appellant: "The prosecution during the trial presented its witnesses, and likewise all the defendants, ... except the appellant Manuel Villegas, took the witness stand and testified for and in their defense. The appellant is a very old man, ignorant and unlettered; during the entire proceedings in the case, the appellant while present did not know what was going on; the trial court never apprised the appellant of his fundamental right to be assisted by a lawyer; the trial court did not even bother inquiring why the appellant Manuel Villegas did not take the witness stand, [something out of the ordinary as] all defendants, except the appellant, had testified; and the trial court went on throughout the proceedings of the case without knowing why the appellant did not testify, that if the appellant testified what would his testimony be like, what would be his demeanor during his testimony, ..." 12 Hence, his insistence that no deference was shown to the constitutional right to counsel. We are inclined to agree and we reverse. Considering, however, the gravity of the offense charged, instead of an acquittal, there should be a new trial with all the safeguards thrown around an accused. 1. That would be to vindicate a fundamental safeguard which in this case, perhaps from a desire of the lower court to proceed with the trial and thus ease what could be a congestion in its sala, was inadvertently disregarded. It is not enough that a counsel de oficio was appointed, especially so as here, where the accused had indicated that he wanted a lawyer of his choice, a decision prompted moreover by the fact that he had lost confidence in the member of the bar thus designated. Nor is it to manifest respect for this right if the counsel de oficio thus named, instead of conferring with the accused, would just blithely inform the judge that he was already fully prepared for his exacting responsibility. It was unintended, of course, but the result could not rightly be distinguished from pure travesty. Appellant could then rightfully invoke this constitutional guarantee. Inasmuch as it is intended to assure a just and fair proceeding, he is entitled at the most to a new trial where he can be duly represented either by a counsel of his choice or by one appointed de oficio, one who would discharge his task in a much more diligent and conscientious manner and would not readily assume that he need not bother himself unduly with familiarizing himself further with all aspects of the case. For only in such a way may there be an intelligent defense. If the matter be viewed thus, there is no unfairness to the state either. It can still see to it that a person against whom a probable cause had been found would have to stand trial, but, to repeat, with all the constitutional safeguards. 2. It would not be amiss to refer to the opinion of Chief Justice Moran in People v. Holgado, 13 where the importance of this right was stressed. Thus: "In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And

this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his own." 14 There are a number of American Supreme Court decisions to the same effect. In one of them, William v. Kaiser, Justice Douglas succinctly summed up the matter thus: "[The accused] needs the aid of counsel lest he be the victim of overzealous prosecutors, of the law's complexity, or of his own ignorance or bewilderment." 15 What is more, it is one of the worthwhile innovations of the present Constitution that even at the stage of custodial interrogation when the police agencies are investigating a man's possible connection with a crime, he is already entitled to counsel. 16 In a true sense, that is merely to underscore the historical fact that even under the organic acts 17 prior to the 1935 Constitution, there was an awareness of the importance of the right to counsel. 18 This is not of course to assert that this Court in the past had invariably accorded it an interpretation favorable to the stand of an accused. Thus in United States v. Labial, 19 a 1914 decision, it was held that the failure of the record to disclose affirmatively that the trial judge advised the accused of their right to counsel is not sufficient ground for the reversal of a conviction. When Labial was affirmed in United States v. Escalante, 20 decided in 1917, Justice Malcolm was moved to file a vigorous dissent. It suffices to recall his conformity to the view of Cooley that this is "perhaps the privilege most important to the person accused of crime. 21 It is in that spirit, or something akin to it, that the framers of the 1935 Constitution approached the subject. Of even greater relevance is the fact that the present fundamental law has, as above indicated, vitalized still further its worth and significance. WHEREFORE, the lower court decision of December 4, 1967 insofar as it found Manuel Villegas guilty of the crime of murder is reversed and a new trial ordered forthwith for such accused. This decision is immediately executory. No costs. Barredo, Antonio, Aquino and Concepcion, Jr., JJ., concur.1äwphï1.ñët G.R. No. L-23815 June 28, 1974

(57 Scra 473)

ADELINO H. LEDESMA, petitioner, vs. HON. RAFAEL C. CLIMACO, Presiding Judge of the Court of First Instance of Negros Occidental, Branch I, Silay City, respondent. Adelino H. Ledesma in his own behalf. Hon. Rafael C. Climaco in his own behalf.

FERNANDO, J.:p What is assailed in this certiorari proceeding is an order of respondent Judge denying a motion filed by petitioner to be allowed to withdraw as counsel de oficio. 1 One of the

grounds for such a motion was his allegation that with his appointment as Election Registrar by the Commission on Elections, he was not in a position to devote full time to the defense of the two accused. The denial by respondent Judge of such a plea, notwithstanding the conformity of the defendants, was due "its principal effect [being] to delay this case." 2 It was likewise noted that the prosecution had already rested and that petitioner was previously counsel de parte, his designation in the former category being precisely to protect him in his new position without prejudicing the accused. It cannot be plausibly asserted that such failure to allow withdrawal of de oficio counsel could ordinarily be characterized as a grave abuse of discretion correctible by certiorari. There is, however, the overriding concern for the right to counsel of the accused that must be taken seriously into consideration. In appropriate cases, it should tilt the balance. This is not one of them. What is easily discernible was the obvious reluctance of petitioner to comply with the responsibilities incumbent on the counsel de oficio. Then, too, even on the assumption that he continues in his position, his volume of work is likely to be very much less at present. There is not now the slightest pretext for him to shirk an obligation a member of the bar, who expects to remain in good standing, should fulfill. The petition is clearly without merit. According to the undisputed facts, petitioner, on October 13, 1964, was appointed Election Registrar for the Municipality of Cadiz, Province of Negros Occidental. Then and there, he commenced to discharge its duties. As he was counsel de parte for one of the accused in a case pending in the sala of respondent Judge, he filed a motion to withdraw as such. Not only did respondent Judge deny such motion, but he also appointed him counsel de oficio for the two defendants. Subsequently, on November 3, 1964, petitioner filed an urgent motion to be allowed to withdraw as counsel de oficio, premised on the policy of the Commission on Elections to require full time service as well as on the volume or pressure of work of petitioner, which could prevent him from handling adequately the defense. Respondent Judge, in the challenged order of November 6, 1964, denied said motion. A motion for reconsideration having proved futile, he instituted this certiorari proceeding. 3 As noted at the outset, the petition must fail. 1. The assailed order of November 6, 1964 denying the urgent motion of petitioner to withdraw as counsel de oficio speaks for itself. It began with a reminder that a crime was allegedly committed on February 17, 1962, with the proceedings having started in the municipal court of Cadiz on July 11, 1962. Then respondent Judge spoke of his order of October 16, 1964 which reads thus: "In view of the objection of the prosecution to the motion for postponement of October 15, 1964 (alleging that counsel for the accused cannot continue appearing in this case without the express authority of the Commission on Elections); and since according to the prosecution there are two witnesses who are ready to take the stand, after which the government would rest, the motion for postponement is denied. When counsel for the accused assumed office as Election Registrar on October 13, 1964, he knew since October 2, 1964 that the trial would be resumed today. Nevertheless, in order not to prejudice the civil service status of counsel for the accused, he is hereby designated counsel de oficio for the accused. The defense obtained postponements on May 17, 1963, June 13, 1963, June 14, 1963, October 28, 1963, November 27, 1963, February 11, 1964, March 9, 1964, June 8, 1964 July 26, 1964, and September 7, 1964." 4 Reference was then made to another order of February 11, 1964: "Upon petition of Atty. Adelino H. Ledesma, alleging indisposition, the continuation of the trial of this case is hereby transferred to March 9, 1964 at 8:30 in the morning. The defense is reminded that at its instance, this case has been postponed at least eight (8) times, and that the government witnesses have to come all the way from Manapala." 5 After which, it was noted in such order that there was no incompatibility between the duty

of petitioner to the accused and to the court and the performance of his task as an election registrar of the Commission on Elections and that the ends of justice "would be served by allowing and requiring Mr. Ledesma to continue as counsel de oficio, since the prosecution has already rested its case." 6 2. What is readily apparent therefore, is that petitioner was less than duly mindful of his obligation as counsel de oficio. He ought to have known that membership in the bar is a privilege burdened with conditions. It could be that for some lawyers, especially the neophytes in the profession, being appointed counsel de oficio is an irksome chore. For those holding such belief, it may come as a surprise that counsel of repute and of eminence welcome such an opportunity. It makes even more manifest that law is indeed a profession dedicated to the ideal of service and not a mere trade. It is understandable then why a high degree of fidelity to duty is required of one so designated. A recent statement of the doctrine is found in People v. Daban: 7 "There is need anew in this disciplinary proceeding to lay stress on the fundamental postulate that membership in the bar carries with it a responsibility to live up to its exacting standard. The law is a profession, not a trade or a craft. Those enrolled in its ranks are called upon to aid in the performance of one of the basic purposes of the State, the administration of justice. To avoid any frustration thereof, especially in the case of an indigent defendant, a lawyer may be required to act as counsel de oficio. The fact that his services are rendered without remuneration should not occasion a diminution in his zeal. Rather the contrary. This is not, of course, to ignore that other pressing matters do compete for his attention. After all, he has his practice to attend to. That circumstance possesses a high degree of relevance since a lawyer has to live; certainly he cannot afford either to neglect his paying cases. Nonetheless, what is incumbent upon him as counsel de oficio must be fulfilled." 8 So it has been from the 1905 decision of In re Robles Lahesa, 9 where respondent was de oficio counsel, the opinion penned by Justice Carson making clear: "This Court should exact from its officers and subordinates the most scrupulous performance of their official duties, especially when negligence in the performance of those duties necessarily results in delays in the prosecution of criminal cases ...." 10 Justice Sanchez in People v. Estebia 11 reiterated such a view in these words: "It is true that he is a court-appointed counsel. But we do say that as such counsel de oficio, he has as high a duty to the accused as one employed and paid by defendant himself. Because, as in the case of the latter, he must exercise his best efforts and professional ability in behalf of the person assigned to his care. He is to render effective assistance. The accused-defendant expects of him due diligence, not mere perfunctory representation. For, indeed a lawyer who is a vanguard in the bastion of justice is expected to have a bigger dose of social conscience and a little less of self-interest." 12 The weakness of the petition is thus quite evident. 3. If respondent Judge were required to answer the petition, it was only due to the apprehension that considering the frame of mind of a counsel loath and reluctant to fulfill his obligation, the welfare of the accused could be prejudiced. His right to counsel could in effect be rendered nugatory. Its importance was rightfully stressed by Chief Justice Moran in People v. Holgado in these words: "In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and; without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be

assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his own." 13 So it was under the previous Organic Acts. 14 The present Constitution is even more emphatic. For, in addition to reiterating that the accused "shall enjoy the right to be heard by himself and counsel," 15 there is this new provision: "Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence." 16 Thus is made manifest the indispensable role of a member of the Bar in the defense of an accused. Such a consideration could have sufficed for petitioner not being allowed to withdraw as counsel de oficio. For he did betray by his moves his lack of enthusiasm for the task entrusted to him, to put matters mildly. He did point though to his responsibility as an election registrar. Assuming his good faith, no such excuse could be availed now. There is not likely at present, and in the immediate future, an exorbitant demand on his time. It may likewise be assumed, considering what has been set forth above, that petitioner would exert himself sufficiently to perform his task as defense counsel with competence, if not with zeal, if only to erase doubts as to his fitness to remain a member of the profession in good standing. The admonition is ever timely for those enrolled in the ranks of legal practitioners that there are times, and this is one of them, when duty to court and to client takes precedence over the promptings of self-interest. WHEREFORE, the petition for certiorari is dismissed. Costs against petitioner. Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur. Barredo, J., took no part.

A.C. No. 959 July 30, 1971

(40 Scra 128)

PEDRO OPAREL, SR., complainant, vs. ATTY. DOMINADOR ABARIA, respondent. R E S O L UT I O N FERNANDO, J.: This administrative proceeding was started by Pedro Oparel, Sr., who identified himself as a pauper in his complaint filed with this Court on August 27, 1970 against respondent Dominador Abaria, a member of the Philippine Bar. The charge was that respondent, whose services were retained to assist complainant recover damages from his employer for injuries suffered, acted dishonestly. Apparently, a settlement was reached, complainant having been made to sign a receipt in the sum of P500.00 for his claim, out of which was deducted P55.00 as attorney's fees, when the truth, according to the complaint, was that respondent did receive the much larger amount of P5,000.00. In a resolution of September 14, 1970, the respondent was required to file an answer within ten days from notice. It was duly filed on October 19, 1970 with a vehement denial on the part of the respondent, alleging that the complaint was "irresponsible, baseless and [should] not merit even the scantiest consideration" of this Court. He further alleged that while complainant was asking only for P200.00, he was able to secure a settlement from the employer in the sum of P500.00, admitting that he was given as fees the aforesaid AMOUNT of P55.00. He accounted for the alleged sum of P5,000.00 by stating that P3,500 was spent by the employer for plaintiff's operation and medical bills, another P1,000.00 given to complainant's family during his confinement in the hospital, and then the P500.00 received in cash by way of additional settlement. He prayed that the complaint be dismissed. This Court, in a resolution of October 23, 1970, referred the matter to the Solicitor General for investigation, report and recommendation. Such report and recommendation was submitted on June 2, 1971. It was therein stated that the city fiscal of Bacolod City, who was designated to act as investigator, as the parties were residents of the place, submitted on March 2, 1971 a report recommending dismissal due to the desistance of complainant. It appeared that when the case was called for investigation on February 17, 1971, the complainant manifested that he was no longer interested in pushing through his complaint against respondent. In his affidavit of desistance, he admitted that the administrative charge arose out of a misunderstanding between him and respondent. He likewise admitted that there was no deception practiced on him by respondent when he was made to sign the affidavit of September 20, 1966 wherein it appeared that the amount received by him was P500.00, no mention being made therein of the other P4,500.00 which, as noted in the answer of respondent, consisted of P3,500.00 for expenses incurred for complainant's operation and medical bills and P1,000.00 given to his family for support while he was staying in the hospital. The Solicitor General agreed with such a recommendation and prayed that the case be dismissed. While it would appear that under the circumstances no case lies against respondent Dominador Abaria, it is not amiss to impress on members of the Bar that the utmost care be taken to minimize occasions for any misunderstanding between them and their clients. The relationship being one of confidence, there is ever present the need for the latter being adequately and fully informed of the mode and manner in which their interest is defended. They should not be left in the dark. They are entitled to the fullest disclosure of why certain steps are taken and why certain matters are either included or excluded from

the documents they are made to sign. It is only thus that their faith in counsel may remain unimpaired. Where, as did happen here, the client happens to be poor and unlettered, seeking to enforce what he considers his just demands against an employer, it is even more imperative that matters be explained to him with all precision and clarity. More than that, no effort should be spared for him to get fully what he is entitled to under the law. The same zeal should characterize a lawyer's efforts as when he is defending the rights of property. As it is, there is even the fear that a lawyer works harder when he appears for men of substance. To show how unfounded is such a suspicion, he must exert his utmost, whoever be his client. More specifically, in a case like the present, he should not invite loss of trust by inadvertence or even by a failure to use the simplest and most understandable language in communicating matters. For he may lend himself to the suspicion that he is lacking in candor and may be taking undue advantage of his client for his own profit and advantage in any dealing with the adverse party. At any rate, with complainant having been satisfied with the explanation of respondent, he could not be justly charged of being recreant to his trust for personal gain. The dismissal of this case is therefore warranted. WHEREFORE, the administrative case filed by Pedro Oparel, Sr. against respondent Dominador Abaria is dismissed. Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro, Teehankee, Barredo and Makasiar, JJ., concur. Villamor J., took no part. Dizon, J., is on leave.

G.R. No. 1107

April 2, 1904

(3 Phil 577)

In the matter of the proceedings for the disbarment of AUGUSTUS A. MONTAGNE and FRANK E. DOMINGUEZ. Attorney-General Wilfley for the Government. Gibbs and Kincaid and Hartigan, Marple, Solignac and Gutierrez for appellants. MCDONOUGH, J.: On or about the 15th day of November, 1902, the Attorney-General of the Philippine Islands presented to the Supreme Court of said Islands a petition, and on or about January 15, 1903, a supplemental petition, alleging that Augustus A. Montagne and Frank E. Dominguez were practicing attorneys at law in the courts of said Islands, and were members of the firm of lawyers known as Montagne & Dominguez; and in said petition and supplemental petition the said Attorney-General charged said lawyers and said firm with having violated their oaths of office as attorneys at law and with failure to faithfully perform the duties of their office as such attorneys toward their clients. Upon notice to the parties, and on motion of the Attorney-General, this court appointed a commissioner to take the proofs of the parties. In due time of the commissioner made his report and filed in this court all the evidence taken in the proceeding, and thereafter the matter was ably and fully argued by the Attorney-General and the attorneys for the respondents. This evidence is so voluminous that nothing more can be incorporated in the space given us to this opinion than a brief reference to it, and even that reference is to be confined to the facts of four of the most serious of the charges against the respondents, viz, the "Balmori" charge, the hacienda "Esperanza" charge, the "Cordona" charge, and the "Sarmiento" charge. These charges, and a brief statement of the evidence to sustain them, are as follows: First. That the respondents accepted employment in February, 1902, to represent one Felix Balbmori in a criminal case, on appeal to the Supreme Court, receiving a retainer in said case; and that after entering upon such employment and accepting a fee pursuant thereto, they abandoned and deserted their said client's case, to his great prejudice. In this case the respondents agreed, for the sum of $200, Mexican currency, to take an appeal to the Supreme Court, and to conduct such appeal. The appeal was taken on or about the 15th of February, 1902. The respondents received $100, Mexican currency, of their fee, and although it was stated that the fee was to cover "expenses of translation, printing of briefs, and costs of going to Pasig," they failed and neglected to make and file a printed brief in the Supreme Court, as required by the rules of that court, although requested so to do by the Solicitor-General and although their time to do so had been extended by the Solicitor-General.

Finally a motion was made by the Solicitor-General to have the case abandoned for failure to file the brief, and on the return day the respondents appeared and made an oral argument, and offered to prepare and file a typewritten brief. The court, holding that a printed brief was necessary, declared the appeal abandoned and dismissed it. That the respondents had ample time and opportunity to prepare and present a printed brief in the case appears clearly by reference to the dates of the several steps taken in the case. Balmori was convicted in the Court of First Instance of estafa February 5, 1902, before the respondents were retained in the case. In the latter part of February the respondents made a motion to let the defendant Balmori to bail, and on March 31 he was let to bail in a bond of 500 pesos. Nothing further seems to have been done in the case until after the time for filing and serving defendant's brief had expired. Subsequently the Solicitor-General, at the request of the respondents, verbally extended their time to serve their brief, but such service was not made prior to August 8, 1902. On that day the Solicitor-General made a motion to have the appeal of Balmori declared abandoned, for the reason that the printed brief was not filed, and on the 18th of August the Supreme Court granted the motion. At the hearing the respondents contended that a typewritten brief was sufficient to satisfy the law, although the evidence shows that their retainer covered, among other things, the expense of "printing a brief." Balmori testified that the respondents gave him no notice of the dismissal of his appeal, and that he learned that fact at the office of the clerk of the court, and then sought another lawyer. On October 1, Mr. Lawrence appeared as attorney for Balmori, and made a motion to have the case reinstated, and on October 10 the Supreme Court granted his motion, and gave him thirty days to prepare and file his brief. This brief, consisting of few pages, was filed in time, and subsequently the defendant was acquitted. Balmori, not satisfied with the action of the respondents, demanded a return of the retainer given them in his case, and on the 14th of October they gave back a part of it, 60 pesos, retaining the remainder for certain disbursements. The excuse advanced by the respondents for their neglect and failure to prepare and file a printed brief in this case is that the fee to be paid to them was to be $200, Mexican currency, and that only half of this had been paid, and that they desired to collect the remaining $100 before filing the brief. They did not seek to retire from the case, after becoming attorneys of record, by obtaining the consent of their client, nor the making application to the court for an order authorizing them to retire. Second. That they entered into a contract of employment with thousand of Filipinos in the Province of Pangasinan, in December, 1901, to represent said inhabitants in a suit or suits involving the title and possession to a large tract of land, and, after accepting restainers from their said clients, and rendering certain professional services in connection with such suits, they deserted and abandoned their clients' cases at a critical time, in violation of their contract, and to the great injury of such clients. It appears from the evidence in this charge that the respondents had consultations with a large number of Filipinos in the month of December, 1902, in the Province of Pangasinan, relative to the title and possession of the land occupied by those persons, which lands were claimed by Francisco Gonzales as a part of his estate, known as the Hacienda Esperanza, containing about 50,000 acres of land. The respondents, on or about

December 12, 1902, entered into an agreement with these people to protect them in the enjoyment of the possession of and in their rights to the parcels of land which each one of them possessed, as against the demands of Francisco Gonzales y Renado. (See contract, p. 19, Attorney-General's brief.) Public meetings of these people were held, which were addressed by the respondents, or one of them, and large sums of money, about 6,000 pesos, were subscribed by these clients and paid to the respondents pursuant to said agreement. These people were assured by their attorneys that they had a good cause of action, and that they would win their case. Legal proceedings had been instituted by Gonzales against these clients, or some of them, in a justice's court, and those proceedings were attended by respondents; and two suits were brought in the Court of First Instance involving rights to said land. W. J. Rohde acted for a time as counsel in these matters with the respondents, but before the trial he withdrew from the cases. E. H. Lamme, who became a member of respondent's law firm, also acted with them, and remained in the cases until after the trial. On the 1st of February, 1902, an order was made and entered, setting these cases down for trial at a special term of the court to be held March 10, 1902, thus giving the respondents over five weeks in which to get ready for trial. When the trial day arrived Augustus A. Montagne and Edward H. Lamme appeared in court and made a motion to have their case continued, for the reasons, first, that it was not at issue, and secondly, because one of their important parties to the suit, upon whom they relied for information about the facts, was sick and could not be present. It appears that in one of these two suits pending, that in which Gonzales was defendant, he served a supplemental answer on March 3, 1902, alleging and praying for damages in the sum of $50,000 suffered because of the issuance of an injunction against him, and it further appears that on March 6, 1902, Gonzales filed a supplemental complaint in the second action, in which he was plaintiff, in which he alleged and prayed for damages in the sum of $50,000 suffered by him because of the dissolution of the receivership. After hearing argument the court denied this application for a continuance, but offered to let the cases go over if the attorneys for both sides could agree upon a time for trial. Such agreement was not reached, whereupon the court offered to suspend the hearing for one week to give the respondents an opportunity to prepare for trial. This offer was declined, and the respondents took an exception to the ruling of the court. The court consolidated the two cases, against the objection of the respondents, and proceeded with the trial. Thereupon the respondents, Montagne, and his associate, Lamme, left the court room, and withdrew from the trial of the case. It does not appear that the respondents had subpoenaed witnesses for the trial or notified their clients, other than Chinchilla, who was unable to attend on account of illness. No survey of the property had been made by respondents or for them. At the trial they claimed it was necessary to make a survey, and that would take three months. The trial was finished and the judgment, which was in favor of Gonzales, was signed on Saturday, march 15, 1902. The special term of the court was closed on or about March 24, 1902. The respondent say that no notice of the judgment was given to them by the clerk of the court, but admit that through unofficial sources they learned soon after the fact, that a judgment had been rendered against their client, for Mr. Lamme, on March 21, wrote to an attorney at Lingayen for a copy of the judgment and other papers in the case.

The respondent strongly contend that the court erred at the trial (1) in not granting a continuance; (2) in forcing them to trial when issue was not joined, inasmuch as they claimed the right to make reply to the allegations of Gonzales contained in his supplemental complaint and answer, and (3) because of the consolidation of the two actions. But no appeal was taken to the Supreme Court from these rulings of the court below. The excuse given by the respondents for not appealing is: First. The term of the court was closed before they were notified of the judgment, and that it was then too late to appeal. Second. That Judge Lamme had principal charge of this case; that he intended to appeal, and was making preparation, when, to his great surprise, he learned that they "had been deprived of the power to appeal by the hurried closing of the term of the court within which they could so appeal." Third. Because on June 7 and 12 two letters were received from some of their clients revoking their authority to proceed further and asking for an accounting for the money paid to respondents. The respondent did not take any further proceedings in this case after they left the court, March 10. At the hearing of these disbarment proceedings Mr. Montagne testified that when he examined copies of the title deeds of Gonzales, after the trial, he became dubious about the rights of their clients. These deeds standing alone, made a good title. Gonzales had a very good paper title. It appears that respondents made no efforts to see these deeds or to ascertain their contents before beginning their action. Mr. Lamme was not a member of the bar of these Islands. He had taken two examinations for admission, but failed to pass on both occasions. Immediately after the decision of the court refusing a continuance, Mr. Dominguez and Mr. Lamme went into the Rosales country and told their clients there, who were interested in a similar question, that respondents would go right on with the case, and that the fight had only begun. They then and there collected from clients more money, 43 pesos at Santo Tomas, on March 13, and 400 pesos in Alcala. Third. That they were retained in October, 1901, to defend one Juan Cardona, who was then held as a prisoner on a criminal charge in the Province of Tarlac. The accused received from Cardona a retainer in his case and afterwards deserted him and failed to appear for him in court when his case was called for trial. It appears in this charge that one Juan Cardona, who had been secretary of the Province of Tarlac, was in prison at the place under several charges, and retained the respondents to defend him. The amount of the net sum to be paid to respondents for their professional services is disputed, but it is conceded that they were paid, through Mr. Dominguez, the sum of 500 pesos.

On or about the 18th of November, 1901, Lieut. Grant T. Trent was detailed to take charge of the prosecution of Cardona and was ordered to proceed to Tarlac for that purpose, and this fact was made known to Mr. Dominguez on or about the last-mentioned date. On the 30th of November, 1901, Cardona appeared before the Court of First Instance for arraignment, and being informed that he was entitled to counsel, and his counsel not appearing for him, he was given three days' time to procure counsel. On the 5th of December, 1901, Cardona was again taken to court. He stated that his lawyers, Messrs. Montagne & Dominguez, had not yet arrived from Manila, and asked for further time. He was granted three days' further time. On the 12th day of December, 1901, the accused again appeared in court, and was asked to plead to the charge of highway robbery, which he did, through other counsel, and was granted three days' further time to prepare for trial. The respondents did not attend the court on any of these dates to take charge of the interest of their said client. They contend that, in a conversation had between one of them and Mr. Trent on the train, December 7, 1901, Mr. Trent consented to an adjournment of the case for a few days, whereas Lieutenant Trent says this conversation took place prior to November 27, and that the understanding was that Montagne & Dominguez would attend to the case within three or four days. On the 2nd of December Lieutenant Trent mailed amended complaints against Cardona to Montagne & Dominguez at Manila. Lieutenant Trent telegraph Mr. Dominguez at Manila December 2 that Cardona would be arraigned on Thursday. He telegraph to Rosales December 10, to Dominguez, not to fail to stop on his way to Manila. He also telegraph him at Lingayen December 12 to know when he could be present to look after the Cardona matter, and got no replies to any of these telegrams. The delivery sheet of the telegraph company showed that the dispatch to Manila was delivered to Dominguez on December 2. Cardona swore that he telegraphed and wrote to the respondents about the setting of his case for hearing, and requested their presence, and that because of their failure to appear for him he had to employ other counsel. Cardona contends that the fee for defendant him in all his cases was fixed at 1,000 pesos, of which he paid in advance 500 pesos, whereas respondents claim that the fee was to be 5,000 pesos. Respondents showed that they examined papers and proceedings had at the preliminary hearing of Cardona, and took steps to have him let out on habeas corpus before trial, but without success. Fourth. That they undertook, in November, 1901, the defense of one Ramon Sarmiento, who was charged with the crimes of estafa and falsification, and who was imprisonment on those charges in Manila; that though they were paid 500 pesos for their services, they subsequently, on an order of the court, obtained possession of 300 pesos which had been deposited in court as the money of said Sarmiento, and retained said sum of 300 pesos and appropriated it to their own use and benefit, against the instructions of their said client and to his injury. The facts are that Sarmiento had deposited $300, Mexican, with his chief of the customs service, to cover a shortage, and this sum was subsequently deposited in court. The complaint for estafa was filed against him November 9 and for falsification November 12. The respondents defended Sarmiento. He was convicted of one of the offenses February 20, 1902. The 500 pesos paid to them were paid as follows: November 11, 1901,

300 pesos, and November 18, 1901, 200 pesos. The respondents claim that their fees were to be 1,000 pesos. This statements is denied. Before the judgment in the case (February 20) the respondents, on the request of the wife of the defendant, Sarmiento, and on the consent of herself and husband, obtained an order of the court for the payment of the 300 pesos deposited in the court. This money was paid to the respondents, and they retained it, although the wife said she did not want them to do so; that it was for her and for the support of her children. At the trial of Sarmiento, when it was proposed to introduce this money in evidence, respondents consented on condition that the court authorized "the wife of the defendant to finally receive said sum, since they are very needy." The wife testified in this proceeding that respondents wanted to retain this money to pay for conducting an appeal in her husband's case, and that she told them she did not want them to appeal the case. Sarmiento subsequently sued the respondents for this money, and recovered judgment for the same in the Court of First Instance. After this judgment was entered the respondents agreed with the attorney for Sarmiento to pay the same, and did pay a part thereof, but when they ascertained that their conduct in the case was being investigated by the Attorney-General, and that the plaintiff gave a statement to the Attorney-General, they annulled their agreement and demanded and received from the said attorney the sum so paid to him. Fifth. That in seven other cases, called the "Cuyapo" case, the "Pearsons" case, the "Dorr" case, the "Gleason" case, the "Finnick" case, the "Quiao" case, and the "Mauline" case, the accused, as such attorneys, at various times mentioned in said petitions, after being employed and retained by clients, and after receiving fees from their clients, abandoned their cases, and failed and neglected to render such faithful services for said clients as the law required. The Attorney-General states in his brief that "any one of the first six charges, as they appear in this brief, is sufficient to warrant disbarment. This is not true of any of the remaining five. The latter are cited for the purpose of throwing light upon respondents' conduct in general, and to establish the proposition that they are guilty of a line of conduct in which good morals and professional ethics are totally ignored." We are of opinion that there should be added to these latter five charges those against the respondents in the "Pearson" case and in the "Mauline" case, thus making in all seven charges, no one of which is sufficient to warrant suspension or disbarment, and these seven charges are therefore dismissed. The respondents have filed with us, by one of their attorneys, a very lengthly and ingenious argument, in which they contend that these proceedings should be dismissed, without regard to the merits; for the reasons — First. The acts alleged in the information are made the object of articles 356 and 357 of the Penal Code, and original jurisdiction thereof is vested in the Courts of First Instance. Second. If it be determined that articles 356 and 357 of the Penal Code have been repealed by section 21 of the Code of Civil Procedure, then the proceedings should be dismissed, because the respondents are deprived of the right granted them by section 5 of the act of Congress No. 235, approved on the 1st day of July, 1902, to be prosecuted for a

criminal offense by due process of law, and to the equal protection of the law — rights and privileges which we expressly invoke. Articles 356 and 357 of the Penal Code provide, in effect, for the punishment by a fine of an attorney who maliciously abuses his profession, or by inexcusable ignorance or negligence prejudices his clients; and provide for punishment by fine and suspension, in case an attorney having been retained to defend the cause of one party, subsequently without his consent, defends the opposite side in the same action. Section 21 of the Code of Civil Procedure provides that a member of the bar may be remove or suspended from his office as lawyer, by the Supreme Court, for any deceit, malpractice, or other gross misconduct in such office, or by reason of his conviction of a crime involving moral turpitude, or for violation of the oaths prescribed in section 18, or for the willful disobedience of any lawful order of the Supreme Court of Courts of First Instance, or for corruptly or willfully appearing as a lawyer for a party to an action or proceeding without authority so to do. It will be noticed that under article 356 of the Penal Code the penalty for a violation of that article is a fine only; and, under article 357, a file and suspension may be imposed only for one cause, viz, when an attorney is retained by one party and subsequently, and without the consent of the partly, defends the opposite side in the same action. Section 21 of the Code of Civil Procedure is much broader than these articles of the Penal Code, for the reason that causes for a fine only, in article 356, are causes for suspension or disbarment under the provisions of the Code of Civil Procedure. Moreover, a violation of these articles of the Penal Code constitutes a crime for the trial of which the Courts of First Instance have jurisdiction, whereas, this court has exclusive jurisdiction in proceedings of this nature, and the object of the proceedings before us is not to convict the respondents of a crime, but simply to protect the court and the public from the misconduct of officers of the court. It follows that this court has jurisdiction to hear and determine this proceeding, regardless of the provisions of the Penal Code. As to the second point made by the respondents, that, inasmuch as section 5 of the act of Congress of July 1, 1902, provides that no one shall be prosecuted for a criminal offense except by due process of law, and that everyone shall be entitled to the equal protection of the law, their rights and privileges are taken from them by this proceeding; the answer is, first, that this is not a criminal proceeding, and secondly, it is conducted according to law — it is due process of law. In Ex parte Wall (107 U.S., 265), where it appeared that an attorney had joined a mob and took part in the lynching of a man, the respondent insisted, in disbarment proceedings, that his acts constituted a crime under the State laws, and that, until tried and convicted in the State court he could not be lawfully disbarred. The Supreme Court of the United States held that his acts were such as to justify disbarment; that the proceedings do not violate the constitutional provisions that no person shall be deprived of life, liberty, or property without due process of law; that a disbarment proceeding is not a criminal one; that it is not intended for punishment, but to protect the court from the official ministration of persons unfit to practice as attorneys therein; and that the proceeding itself, when instituted in proper cases, is due process of law. It was held in Rochester Bar Association vs. Dorthy (152 N. Y., 596), where the defendant was charged with seven acts of deceit and malpractice and was disbarred, that where the

charges involved professional misconduct disbarment proceedings could be maintained even though the same acts may constitute crimes. We are constrained to condemn the acts of the respondents complained of in the four charges not herein dismissed. It is the duty of the court, when complaints is made, to see to it that its own sworn officers shall be held to strict account for their behavior toward the court, their clients, and the public. In re Percy (36 N. Y., 651) the court went so far as to hold that inasmuch as the right to admission to practice law depended on good moral character, joined with requisite learning, this character should be preserved after admission; and that where the acts of an attorney were such as to destroy his credibility and character, the court had authority to disbar him. Inasmuch as in the case at bar the charges and proofs do not show that the practice of the respondents constituted the gravest offenses, we are inclined to take a lenient view of the charges. While we can not excuse the respondent, yet we are of opinion that total disbarment would be too severe a penalty for their acts. The court, therefore, is of opinion that the respondents, Augustus A. Montagne and Frank E. Dominguez, should be suspended from the practice of their profession as lawyers in these Islands for a term of one year. So ordered. Arellano, C. J., Torres, Cooper, Willard, and Mapa, JJ., concur. Johnson, J., took no part.