EN BANC
TERESITA
D.
SANTECO,
Complainant,
A.C.
No.
5834
December 11, 2003
-versus-
ATTY.
LUNA B.
AVANCE,
Respondent.
chanroblesvirtualawlibrary
D E C I S I O N
YNARES-SANTIAGO,
J.:
The relationship
between a lawyer and a client is highly fiduciary; it requires a high
degree
of fidelity and good faith.[1]The
Code of Professional Responsibility, states:chanrobles virtuallaw libraryred
CANON 17. —
A LAWYER OWES FIDELITY TO CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL
OF
THE TRUST AND CONFIDENCE REPOSED IN HIM.chanrobles virtuallaw libraryred
CANON 18. — A
LAWYER
SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.chanrobles virtuallaw libraryred
We are once again
called
upon to reiterate these dicta in the instant administrative matter
before
us.
On July 31, 2001, Teresita
D. Santeco filed a Verified Complaint[2]
with the Committee on Bar Discipline of the Integrated
Bar of the Philippines praying that appropriate sanctions be meted
on respondent Atty. Luna B. Avance for mishandling Civil Case No.
97-275.chanrobles virtuallaw libraryred
Complainant averred
that she was the defendant in an action for ejectment docketed as Civil
Case No. 50988 filed with Branch 62 of the Makati City Metropolitan
Trial
Court (MTC). On March 3, 1997, the trial court rendered judgment
against
her. Thereafter, she filed a supersedeas bond with the Clerk of Court
of
the Makati MTC.chanrobles virtuallaw libraryred
Sometime in February
1997, during the pendency of the ejectment case, complainant filed an
action
to Declare Deed of Absolute Sale Null and Void and for Reconveyance
with
Damages with Branch 147 of the Makati City Regional Trial Court. The
case
was entitled, "Feliciana David Santeco, et al. v. Ramon Gutierrez, et
al.,"
and docketed as Civil Case No. 97-275.chanrobles virtuallaw libraryred
On or before March 1998,
complainant terminated the services of her then counsel and engaged the
services of respondent Atty. Luna B. Avance as her counsel de parte in
both cases. Complainant agreed to and did pay respondent P12,000.00 as
acceptance fee for her services.[3]chanrobles virtuallaw libraryred
In June 1997 and August
2000, complainant paid respondent the sums of P1,500.00 and P500.00
respectively
in full satisfaction of their acceptance fee. However, respondent
refused
to issue to complainant the corresponding receipts therefor, despite
demands
to do so.chanrobles virtuallaw libraryred
In an Order dated July
6, 1998 in Civil Case No. 97-275, the Presiding Judge of Branch 147 of
the Makati City RTC expunged from the record the testimony of a witness
for complainant, who was one of the plaintiffs therein.[4]
Respondent, as her counsel, filed a "Motion to Reconsider and/or Set
Aside
Order of July 6, 1998."[5]
The motion was denied by the trial court in an Order dated June 30,
1999.[6]
Thereafter, on August 27, 1999,[7]
Civil Case No. 97-275 was dismissed for failure to prosecute.
Respondent
filed a "Motion to Reconsider and/or Set Aside Order of August 27,
1999."[8]chanrobles virtuallaw libraryred
Subsequently, respondent
made representations with complainant that she was going to file a
petition
for certiorari with the Court of Appeals, assailing the dismissal of
Civil
Case No. 97-275. For the proposed service, respondent charged
complainant
the total sum of P3,900.00, which the latter paid.[9]
After waiting for some time without any word from respondent,
complainant
personally verified with the docket section of the Court of Appeals
whether
or not a petition for certiorari was filed. She was dismayed to
discover
that no such petition had been filed.chanrobles virtuallaw libraryred
Complainant also alleged
that respondent took from her the official receipt and pictures of the
torn-down structures which were the subject of Civil Case No. 50988,
issued
by the Clerk of Court of Branch 62 of the Makati City MTC, evidencing
her
deposit of the supersedeas bond. Respondent obtained the same under the
pretext that she needed them in the motion for the withdrawal of
complainant's
deposit.chanrobles virtuallaw libraryred
Complainant further
averred that respondent told her to go to the court to claim the check
for the supersedeas bond and have the same encashed with the Landbank.
However, upon verification with the MTC, she discovered that there was
no such check and that she needs to present the official receipt to
withdraw
said deposit. She tried to recover the official receipt from respondent
but the latter kept avoiding her.chanrobles virtuallaw libraryred
Thus, complainant filed
an action against respondent before the Barangay Office of Barangay
Nangka,
Marikina City. Respondent, however, repeatedly failed to appear at the
conciliation proceedings, despite notice of the hearings, prompting the
Lupong Tagapayapa, to issue a certification to file action.[10]
Since then, respondent persistently avoided complainant and failed to
represent
her in Civil Cases Nos. 50988 and 97-275. According to complainant,
respondent
just stopped appearing as her counsel of record without any justifiable
reason. Hence, she prayed that appropriate sanctions be meted on
respondent.cralaw:red
After the filing of
the administrative complaint, docketed as CBD Case No. 01-861, an Order
dated August 1, 2001[11]
was issued by the Commission on Bar Discipline requiring respondent to
submit her Answer within fifteen (15) days from receipt thereof. A copy
of said Order was received by respondent on August 8, 2001. Respondent
failed to file her Answer, which compelled complainant to file a
"Motion
To Declare Respondent In Default And To Set Case For Hearing Ex Parte".[12]
She furnished respondent copy of the motion by personal service. The
copy
was received by one Kins Avance on October 3, 2001.[13]
Respondent still failed
to file her Answer. Thus, the Commission on Bar Discipline issued an
Order
dated October 30, 2001 setting the case for hearing on November 20,
2001.
This Order was received by respondent on November 8, 2001, as reflected
in the Registry Return Receipt thereof.chanrobles virtuallaw libraryred
On the scheduled hearing
on November 20, 2001, only the complainant appeared.[14]
In order to abbreviate proceedings, the Commission on Bar Discipline
issued
an Order[15]
requiring both parties to submit their respective memoranda within
twenty
(20) days from receipt, after which the case shall be deemed submitted
for decision with or without memoranda. Respondent received a copy of
the
Order on November 27, 2001, per the Registry Return Receipt.cralaw:red
Pursuant to the foregoing
Order, complainant filed her Position Paper on December 13, 2001.[16]
Again, respondent did not file her memorandum.cralaw:red
On March 14, 2002, Investigating
Commissioner Lydia A. Navarro submitted a Report finding respondent
culpable
as charged and recommended that she be suspended from the practice of
law
for two (2) years. She found that:chanrobles virtuallaw libraryred
As it is,
respondent
violated Canon 16 of the Code
of Professional Responsibility for having failed to account to the
complainant the official receipt of the supersedeas bond she got from
complainant
to withdrew (sic) the same from the court relative to the ejectment
case.chanrobles virtuallaw libraryred
Respondent also
violated
Canon 18.03 for having failed to file the petition for certiorari
before
the Court of Appeals as she promised the complainant and even got
litigation
expenses relative to the same.chanrobles virtuallaw libraryred
Likewise,
respondent
violated Canon 20 when she discontinued her legal services for
complainant
without any notice of withdrawal and even ignored the issuances of the
Commission for her to answer the complaint filed against her.chanrobles virtuallaw libraryred
On August 3, 2002,
the
Board of Governors of the Integrated
Bar of the Philippines issued Resolution No. XV-02-408, adopting
and
approving the report and recommendation of the Investigating
Commissioner.chanrobles virtuallaw libraryred
While we agree that
indeed
respondent is liable, we find the recommended penalty not commensurate
to the degree of her malfeasance.chanrobles virtuallaw libraryred
There can be no question
that respondent was grossly remiss in the performance of her duties as
counsel for complainant. The records show that in engaging the services
of respondent, complainant agreed to and did pay respondent P12,000.00
as acceptance fee.[17]
It also appears that on April 20, 1998, a witness for complainant in
Civil
Case No. 97-275 testified before the court on direct examination. For
lack
of material time, the cross-examination was reset to June 1, 1998.
However,
the witness failed to attend the hearing on the said date. Respondent,
on the other hand, arrived late. Over the vehement objections of
defense
counsel, the trial court reset the hearing to July 6, 1998, with the
warning
that in the event the witness fails to appear on said date, her direct
examination shall be expunged. The witness again failed to appear at
the
next hearing because she went to Baguio. Respondent was likewise not
around
when the case was called. Thus, on motion of adverse counsel, the trial
court ordered that the testimony of the witness be stricken off the
record.[18]chanrobles virtuallaw libraryred
These incidents show
respondent's lackadaisical manner in handling her client's cause.
Again,
for respondent's failure to appear during the hearings scheduled on
August
23 and 27, 1999, Civil Case No. 97-275 was dismissed for failure to
prosecute.[19]
Her failure to appear during those hearings constitutes inexcusable
negligence
as it proved fatal to the cause of complainant.[20]
She thereafter filed a Motion to Reconsider and/or Set Aside Order of
August
27, 1999 on February 8, 2000[21]
— way beyond the reglementary period for the filing thereof. She
proffered
the lame excuse that notices sent to her were returned to the trial
court
with the notation: "Moved."[22]
However, it was her duty to notify the court of the change in her
address,
if she had indeed moved.chanrobles virtuallaw libraryred
Even as the aforesaid
motion for reconsideration was pending, she made representations with
complainant
that she would file a petition for certiorari with the Court of Appeals
assailing the trial court's dismissal of Civil Case No. 97-275. For the
filing and preparation thereof, she charged and was paid the sum of
P3,900.00
by complainant.[23]
Respondent, however, did not file the petition without notifying the
complainant.chanrobles virtuallaw libraryred
Rule 18.03 of the Code
of Professional Responsibility mandates that a lawyer shall not
neglect
a legal matter entrusted to him. Her negligence in connection therewith
shall render her liable. Verily,chanrobles virtuallaw libraryred
Once he
agrees
to take up the cause of a client, a lawyer owes fidelity to such cause
and must always be mindful of the trust and confidence reposed in him.
He must serve the client with competence and diligence and champion the
latter's cause with wholehearted fidelity, care and devotion. Elsewise
stated, he owes entire devotion to the interest of the client, warm
zeal
in the maintenance and defense of his client's rights, and the exertion
of his utmost learning and ability to the end that nothing be taken or
withheld from his client, save by the rules of law, legally applied.
This
simply means that his client is entitled to the benefit of any and
every
remedy and defense that is authorized by the law of the land and he may
expect his lawyer to assert every such remedy or defense. If much is
demanded
from an attorney, it is because the entrusted privilege to practice law
carries with it the correlative duties not only to the client but also
to the court, to the bar and to the public. A lawyer who performs his
duty
with diligence and candor not only protects the interest of his client;
he also serves the ends of justice, does honor to the bar and helps
maintain
the respect of the community to the legal profession.[24]chanrobles virtuallaw libraryred
Aggravating her gross
negligence
in the performance of her duties, respondent abruptly stopped appearing
as complainant's counsel even as proceedings were still pending with
neither
a withdrawal nor an explanation for doing so. This was in gross
violation
of the following:chanrobles virtuallaw libraryred
CANON 22. A
LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND UPON NOTICE
APPROPRIATE IN THE CIRCUMSTANCES. (Italics supplied.) chanrobles virtuallaw libraryred
It must be remembered
that
while the right of the client to terminate the relation is absolute,
i.e.,
with or without cause,[25]
the right of the attorney to withdraw or terminate the relation other
than
for sufficient cause is considerably restricted.[26]
Among the fundamental rules of ethics is the principle that an attorney
who undertakes to conduct an action impliedly stipulates to carry it to
its termination.[27]
He is not at liberty to abandon it without reasonable cause.[28]
The grounds wherein
a lawyer may withdraw his services are well-defined,[29]
and the abruptness of respondent's withdrawal hardly fits into any of
them.
Be that as it may, whether or not a lawyer has a valid cause for
withdrawing
from a case, he can not just do so and leave the client out in the cold
unprotected.[30]
An attorney may only retire from a case either by written consent of
his
client or by permission of the court after due notice and hearing, in
which
event the lawyer should see to it that the name of the new counsel is
recorded
in the case.[31]chanrobles virtuallaw libraryred
Respondent's consistent
refusal to comply with lawful orders in the proceedings before the
Commission
on Bar Discipline, with no explanation offered to justify them, not
only
underscores her utter lack of respect for authority, but also a
defiance
for law and order which is at the very core of her profession. Such
defiance
is anathema to those who seek a career in the administration of justice
because obedience to the dictates of the law and justice is demanded of
every lawyer. How else would respondent even endeavor to serve justice
and uphold the law when she disdains to follow even simple directives?
The first and foremost command of the Code
of Professional Responsibility could not be any clearer:chanrobles virtuallaw libraryred
CANON 1. A
LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND
PROMOTE
RESPECT FOR LEGAL PROCESSES.chanrobles virtuallaw libraryred
The inevitable
conclusion
is that respondent gravely abused the confidence that complainant
reposed
in her and with palpable bad faith. Her persistent refusal to comply
with
lawful orders directed at her without any explanation for doing so, is
contumacious conduct which merits no compassion.chanrobles virtuallaw libraryred
A lawyer has the duty
to uphold the integrity and dignity of the legal profession at all
times
and to faithfully perform her duties to society, to the bar, to the
courts
and to her clients.[32]
We can not tolerate any misconduct that tends to besmirch the fair name
of an honorable profession.chanrobles virtuallaw libraryred
All told, respondent
has dismally failed to do her duty to her client and has clearly
violated
the Code of Professional Responsibility. Respondent's actions erode the
public perception of the legal profession. They constitute gross
misconduct,
and the sanctions for such malfeasance is provided by Section 27, Rule
138 of the Rules
of
Court which states:chanrobles virtuallaw libraryred
Sec. 27.
Disbarment
and suspension of attorneys by Supreme Court, grounds therefore. — A
member
of the bar may be disbarred or suspended from his office as attorney by
the Supreme Court for any deceit, malpractice or other gross misconduct
in such office, grossly immoral conduct or by reason of his conviction
of a crime involving moral turpitude, or for any violation of the oath
which he is required to take before the admission to practice, or for a
willful disobedience appearing as attorney for a party without
authority
to do so.chanrobles virtuallaw libraryred
The penalty of
suspension
"for a period of two (2) years" recommended by the Board of Governors
of
the IBP is too light and inadequate given the prevailing facts of this
case. For the deliberate violation and defiance of not merely one but
several
Canons of the Code
of Professional Responsibility, coupled with palpable bad faith and
dishonesty in her dealings with complainant, respondent deserves a
graver
penalty — that of suspension for a period of five (5) years from the
practice
of law.[33]chanrobles virtuallaw libraryred
WHEREFORE, in view of
all the foregoing, respondent ATTY. LUNA B. AVANCE is found GUILTY of
gross
misconduct and is hereby SUSPENDED from the practice of law for a
period
of five (5) years. She is directed to return to complainant the amount
of P3,900.00 within ten (10) days from notice.cralaw:red
This decision shall
take effect immediately. Copies thereof shall be furnished the Office
of
the Bar Confidant, to be appended to respondent's personal record. The
Court Administrator shall also furnish all lower courts with copies of
this Decision.chanrobles virtuallaw libraryred
SO ORDERED.chanrobles virtuallaw libraryred
Davide, Jr., C.J.,
Puno, Vitug, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio,
Austria-Martinez,
Corona, Carpio Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.chan
robles virtual law library
____________________________
Endnotes:
[1]
Espiritu V. Atty. Juan Cabredo IV, A.C. No. 5831, 13 January 2003,
citing
Angeles V. Uy, 386 Phil. 6[2000].
[2]
Rollo, p. 1.chanrobles virtuallaw libraryred
[3]
Id., p. 19.chanrobles virtuallaw libraryred
[4]
Id., p. 20.chanrobles virtuallaw libraryred
[5]
Id., p. 22.chanrobles virtuallaw libraryred
[6]
Id., p. 25.chanrobles virtuallaw libraryred
[7]
Id., p. 27.chanrobles virtuallaw libraryred
[8]
Id., pp. 28-32.chanrobles virtuallaw libraryred
[9]
Id., p. 4.chanrobles virtuallaw libraryred
[10]
Id., p. 6.chanrobles virtuallaw libraryred
[11]
Id., p. 7.chanrobles virtuallaw libraryred
[12]
Id., p. 8.chanrobles virtuallaw libraryred
[13]
Id.chanrobles virtuallaw libraryred
[14]
Id., p. 11.chanrobles virtuallaw libraryred
[15]
Id., p. 12.chanrobles virtuallaw libraryred
[16]
Id., pp. 13-18.chanrobles virtuallaw libraryred
[17]
Id., p. 19.chanrobles virtuallaw libraryred
[18]
Id., p. 25.chanrobles virtuallaw libraryred
[19]
Id., p. 27.chanrobles virtuallaw libraryred
[20]
See Rizalino Fernandez v. Atty. Reynaldo Novero, Jr., A.C. No. 5394, 2
December 2002
[21]
Rollo,pp. 28-36.chan
robles virtual law librarychan robles virtual law library
[22]
Id., pp. 29–30.chan
robles virtual law librarychan robles virtual law library
[23]
Id., p. 19.chan
robles virtual law librarychan robles virtual law library
[24]
Ramos v. Jacoba, A.C. No. 5505,27 September 2001.chanrobles virtuallaw libraryred
[25]
Rincomada Telephone Co., Inc. v. Buenviaje, 263 Phil. 162 [1990),
citing
Aro v. Nañawa, 137 Phil. 745 [1969].
[26]
Pineda, E. L. Legal and Judicial Ethics, 1999 ed., p. 300, citing 7,
C.J.S.
940.chanrobles virtuallaw libraryred
[27]
Id.chanrobles virtuallaw libraryred
[28]
Id., citing Stork v. Mishel, 6 ALR 174.chanrobles virtuallaw libraryred
[29]
Rule 22.01. — A lawyer may withdraw his services in any of the
following
cases:chanroblesvirtuallawlibrarychanrobles virtuallaw libraryred
a) When the client pursues an illegal or immoral course of conduct in
connection
with the matter he is handling;
b) When the client insists that the lawyer pursue conduct violative of
these canons and rules;
c) When his inability to work with co-counsel will not promote the best
interest of his client;chanrobles virtuallaw libraryred
d) When the mental and physical condition of the lawyer renders it
difficult
for him to carry out the employment effectively;
e) When the client deliberately fails to pay the fees for the services
or fails to comply with the retainer agreement;
f) When the lawyer is elected or appointed to public office; andchanrobles virtuallaw libraryred
g) Other similar cases.chanrobles virtuallaw libraryred
[30]
Pineda, Legal and Judicial Ethics, supra, p. 300.chanrobles virtuallaw libraryred
[31]
Guanzon v. Aragon, 107 Phil. 315 [1960]; see also Section 26, Rule 138
Rules of Court.chanrobles virtuallaw libraryred
[32]
Teodolfo Reyes v. Atty. Rolando Javier, A.C. No. 5574, 2 February 2002.chanrobles virtuallaw libraryred
[33]
Soledad Nuñez v. Atty. Romulo Ricafort, A.C. No. 5054, 29 may
2002.chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred |