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FRIAL,
VELASCO, JR., J.: A.C. No. 7820
September 12, 2008
FACTS:
The writ was used to attach two (2) cars of complainant-a black
1995 Volvo and a green 1993 Nissan Sentra.
PETITIONERS CONTENTIONS
Architect Roberto S. Perez and three others saw and took video
and photo shots of the same car while in the Manresa Shell station
at, Quezon City.
As Atty. Salomon further alleged, when the misuse of the car was
reported, paving for Liquigans apprehension, Atty. Frial, in a letter,
acknowledged having authorized Liquigan to bring the car
in custodia legis to a mechanic.
As it turned out later, the Volvo was totally destroyed by fire, but
the court was not immediately put on notice of this development.
RESPONDENTS CONTENTIONS
Atty. Frial admitted taking custody of the cars thru his own
undertaking, without authority and knowledge of the court.
The subject vehicles, according to him, were first parked near the
YMCA building in front of the Manila City Hall where they remained
for four months.
He said that the car could not have plausibly been spotted in
Project 3 on December 13, 2006, parked as it was then in front of
Liquigans house for mechanical check-up.
ISSUE: whether or not Atty. Frial was guilty of infidelity in the custody of
the attached properties.
HELD: YES
When Atty. Frial took custody of the Nissan Sentra and Volvo cars,
he was duty bound to keep and preserve these in the same
condition he received them so as to fetch a good price
should the vehicles be auctioned.
Admitted too was the fact that he secured the release of the Volvo
on the strength alone of his own written undertaking; 3 and that the
car was almost totally destroyed by fire on while parked in his
residence.
He could not, however, explain the circumstances behind
the destruction, but admitted not reporting the burning to
the court or the sherif.
While the burning of the car happened before the mediation
hearing, Atty. Frial, upon inquiry of Atty. Salomon, did not give
information as to the whereabouts of the cars.
The destruction of the Volvo in Atty. Frials residence was
not an ordinary occurrence; it was an event that could
have not easily escaped his attention.
there is a strong reason to believe that Atty. Frial
deliberately concealed the destruction of said vehicle from
the court during the hearings in, which were the opportune
times to reveal the condition of the Volvo car.
A writ of attachment issues to prevent the defendant from
disposing of the attached property, thus securing the satisfaction
of any judgment that may be recovered by the plaintiff or any
proper party.
When the objects of the attachment are destroyed, then the
attached properties would necessarily be of no value and the
attachment would be for naught.
there is no question that Atty. Frial is guilty of grave misconduct
arising from his violation of Canon 11 of the Canons of
Professional Ethics that states:
o
11. Dealing with trust property
o
The lawyer should refrain from any action whereby
for his personal benefit or gain he abuses or takes
advantage of the confidence reposed in him by his
client.
o
Money of the client or collected for the client or other
trust property coming into the possession of the
lawyer should be reported and accounted for
promptly and should not under any circumstances
be commingled with his own or be used by him.
A lawyer is first and foremost an officer of the court. As such, he is
expected to respect the courts order and processes.
Atty. Frial miserably fell short of his duties as such officer.
He trifled with the writ of attachment the court issued.
Atty. Frial was remiss in his obligation of taking good care
of the attached cars. He also allowed the use of the Nissan
Sentra car by persons who had no business using it.
David L. Almendarez, Jr. ("complainant") filed this complaintaffidavit1 before the Integrated Bar of the Philippines (IBP), seeking
the disbarment of Atty. Minervo T. Langit ("respondent") for acts
unbecoming a lawyer.
the trial court issued an alias writ of execution for the satisfaction
of the decision.
the two withdrawal slips drawn from the trial court's savings
account.
Instead, he paid her creditors with his own funds and had
her land titles registered in his name, depriving her of her
real properties worth millions.1a\^/phi1.net
His children used to call her "Lola" due to her frequent visits to his
residence.
It is evident from the records that respondent was the one who
notarized the documents involving the said properties redeemed
or repurchased by the complainant from her creditors which ended
up in respondents name like in the deed of sale executed by
Victoriano Dejerano in favor of Nazaria Hernandez
The original complainant was Arnulfo A. Tarog, but his wife, Erlinda
R. Tarog, substituted him upon his intervening death.
the Tarogs and Vidal went to the office of Atty. Ricafort to deliver
the P65,000.00.
The Tarogs further claimed that the Regional Trial Court, Branch
52, in Sorsogon (RTC), had required the parties to file their
memoranda. Accordingly, they deliveredP15,000.00 to Atty.
Ricafort for that purpose, but he did not file the
memorandum.6
two versions about the transaction. On the one hand, the Tarogs
insisted that the amount was to be consigned in court for purposes
of their civil case; on the other hand, Atty. Ricafort claimed that
the amount was for his fees under a "package deal" arrangement.
RESPONDENTS CONTENTIONS:
He claimed that the fees were agreed upon after considering the
value of the property, his skill and experience as a lawyer, the
labor, time, and trouble involved, and his professional character
and social standing;
fee on a package deal basis and under said deal, he will answer
the filing fee, attorneys fees and other expenses incurred up to
the time the judgment is rendered.
Atty. Ricafort violated Canon 15, and Rules 16.01, 16.02 and 16.03
of Canon 16 of the Code of Professional Responsibility by taking
advantage of the vulnerability of his clients and by being
After she was informed by the court that respondent had already
withdrawn the money, she expected in vain to receive the money
a week later in Tarlac as respondent failed to effect the deposit of
the said sum in her account.
She demanded from him to give her the money, but he informed
her that he had already spent the same.
Respondent did not give her a receipt for the said amount.
1.
2.
For his part, Atty. Montemayor denied that the attomey's fees
agreed upon by plaintiffs and Atty. Robinol were purely on a
contingent basis, the truth being that the attomey's fees were
payable on a cash basis of P 2,000.00 retainer fee, as evidenced
by the receipt signed by Atty. Robinol, plus whatever amount is
adjudicated as attomey's fees by the Court of Appeals;
that the contingent fee referred to by Atty. Robinol was the result
of his insistent demand after the Court of Appeals Decision in Civil
Case was already final, as shown by the date of the agreement
His clients were mere squatters who could barely eke out
an existence
2.
RESPONDENTS CONTENTIONS:
His failure to transfer the title of the property under the name of
the complainant was caused by his difficulty in making good the
claimed amount, compounded by his affliction with diabetes and
the consequent loss of sight of his right eye.
Respondent further alleged that he was a licensed real estate and
insurance broker and had been a freelance business management
consultant.
that he gave up the practice of his profession as a lawyer and
subsequently managed to put up a business center with fellow
insurance underwriters for their common insurance underwriting
practice.
He further claimed that an insurance client introduced
complainant as an insurance prospect to him. In the course of their
dealing, complainant intimated to respondent her willingness to
consider respondents insurance proposal provided the latter
would help her facilitate the cancellation and eventual transfer to
her name the property covered by TCT No. 334411 in the name of
complainants sister, Lutgarda Amor D. Barnachea.
Respondent agreed to help complainant in the transfer of the title
to her name, with the condition that no diligent study or
verification of complainants documents, nor preparation of any
additional document or any application or petition whatsoever, will
be made by respondent.
He explained to complainant that his task was merely to go
through the regular process of presenting the available
documents, paying the taxes and fees, and following up the
processing for the cancellation and issuance of the certificate of
title.
In other words, respondent ofered to complainant services
which a non-lawyer familiar with the procedure and the
related offices can perform and provide to the complainant
with respect to the transfer of the title of the property in
her name.
Respondent asserted that, he discovered and became aware for
the first time that the original copy of TCT No. 334411 with the
Register of Deeds of Quezon City was destroyed in a fire in Quezon
City Hall several years earlier and that complainants copy of the
title needed to be reconstituted before it can be cancelled and
transferred.
the working relations of respondent in the business center with his
non-lawyer associates had become difficult and strained, impelling
him to sever his business relations with them and cease from to
going to the business center.
Consequently, telephone communications between respondent
and complainant at the business center was cut.
Communications became much more limited when, apart from the
fact that respondent did not have a landline at his residence,
respondents mobile phone was stolen.
IBP FINDINGS:
Issue: Whether the sale of the land is prohibited under Article 1491.
Held: YES
Article 1491 says that The following persons cannot acquire any
purchase, even at a public or judicial auction, either in person or
through the mediation of another. (5) Justices, judges,
prosecuting attorneys, clerks of superior and inferior courts, and
other officers and employees connected with the administration of
justice, the property and rights in litigation or levied upon an
execution before the court within whose jurisdiction or territory
they exercise their respective functions;
this prohibition includes the act of acquiring by assignment and
shall apply to lawyers, with respect to the property and rights
which may be the object of any litigation in which they may take
part by virtue of their profession.
The present case clearly falls under this, especially since the case
was still pending appeal when the sale was made.
Legal effect of a sale falling under Article1491? NULL AND
VOID.CANNOT BE RATIFIED.
ALISBO V JALINDOON
GRINO-AQUINO; July 18, 1991
FACTS
dealings with his client, which call for the exercise of this
Court's disciplinary power.
Disposition It was more than simple negligence; the Court found
respondent guilty of serious misconduct and infidelity and was
suspended for a period of 2 years.
NGAYAN V TUGADE
PER CURIAM; February 7, 1991
FACTS
ISSUE: WON Atty. Tugade failed to uphold the trust and confidence
conferred to him by his clients
HELD: YES.
ISSUE: Whether or not a member of the Philippine Bar who was disbarred
or suspended from the practice of law in a foreign jurisdiction where he has
also been admitted as an attorney be meted the same sanction as a
member of the Philippine Bar for the same infraction committed in the
foreign jurisdiction.
HELD:
valid grounds for his suspension from the practice of law in the
Philippines.
Such acts are violative of a lawyers sworn duty to act with fidelity
toward his clients.
They are also violative of the Code of Professional
Responsibility, specifically, Canon 17 which states that [a]
lawyer owes fidelity to the cause of his client and shall be
mindful the trust and confidence reposed in him; and Rule
1.01 which prohibits lawyers from engaging in unlawful, dishonest,
immoral or deceitful conduct.
The requirement of good moral character is not only a condition
precedent to admission to the Philippine Bar but is also a
continuing requirement to maintain ones goods standing in the
legal profession.
The Guam Superior Courts judgment ordering Maqueras
suspension from the practice of law in Guam does not
automatically result in his suspension or disbarment in the
Philippines.
Under Section 27, Rule 138 of the Revised Rules of Court, the acts
which led to his suspension in Guam are mere grounds for
disbarment or suspension in this jurisdiction, at that only if the
basis of the foreign courts action includes any of the grounds for
disbarment or suspension in this jurisdiction.
Likewise, the judgment of the Superior Court of Guam only
constitutes prima facie evidence of Maqueras unethical acts as a
lawyer.
More fundamentally, due process demands that he be given the
opportunity to defend himself and to present testimonial and
documentary evidence on the matter in an investigation to be
conducted in accordance with Rule 139-B of the Revised Rules of
Court.
Said rule mandates that a respondent lawyer must in all cases be
notified of the charges against him.
It is only after reasonable notice and failure on the part of the
respondent lawyer to appear during the scheduled investigation
that an investigation may be conducted ex parte.
Atty. Leon G. Maquera is required to SHOW CAUSE, within fifteen
(15) days from receipt of this Resolution, why he should not be
suspended or disbarred for his acts which gave rise to the
disciplinary proceedings against him in the Superior Court of Guam
and his subsequent suspension in said jurisdiction.
The Case
days to file his Answer. The CBD granted the extension in the
Order dated 19 March 2003. 3However, Paguinto failed to file his
Answer within the extended period and thus the CBD declared him
in default in the Order dated 15 July 2003.4 After the hearing,
Parias submitted her Position Paper praying that the CBD declare
Paguinto guilty of violation of Rule 16.01 and Rule 18.03 of the
Code of Professional Responsibility.
On 10 September 2003, Parias filed an Affidavit of Withdrawal 5 of
the complaint. Parias stated that Paguinto "personally explained
exhaustively the reasons why he failed to comply with his
obligations" and she realized that the complaint arose due to a
"misapprehension
of
facts,
misunderstanding
and
miscommunication." Parias manifested that she was withdrawing
the complaint, as she was no longer interested in pursuing the
case.
On the same date, Paguinto filed a Manifestation and
Motion6 explaining that he failed to attend the hearing on 30 July
2003 because he was in Tabuk, Kalinga attending a hearing in a
criminal case for frustrated homicide. He apologized to Parias for
his actuations claiming "himself solely to be blamed." He further
declared that he failed to timely prepare and file the petition for
annulment because he spends his time mostly in Gen. Mariano
Alvarez, Cavite where he practices law catering to those "clients
who have less in life."
Commissioner's Report & Recommendation
The
IBP
designated
Atty.
Rebecca
Villanueva-Maala
("Commissioner") as Commissioner to conduct a formal
investigation of the case. The Commissioner found Paguinto
negligent in performing his duties as a lawyer and as an officer of
the court. The Commissioner declared that a lawyer has the duty
to give adequate attention, care and time to his cases, accepting
only as many cases as he can handle. Paguinto failed to comply
with this duty. The Commissioner recommended the suspension of
Paguinto from the practice of law for six months.
The Court's Ruling
We agree with the Commissioner.
Parias gave Paguinto P10,000 cash as partial payment of the
acceptance fee. Parias also gave PaguintoP2,500 for the filing
fee. Paguinto led Parias to believe that he had filed the
annulment case. Paguinto informed Parias that the case was filed
with the RTC-Manila, Branch 64, before Judge Ricaforte. However,
Parias later found out that Paguinto never filed the annulment
case in court.
complainant did not furnish him with the records and stenographic
notes of the previous proceedings despite his repeated requests.
He alleged that he failed to formally offer the exhibits because
complainant tried to take over the handling of the case by insisting
on presenting more witnesses who failed to appear during trial.
The Office of the Bar Confidant submitted a report finding
respondent guilty of violation of the Code of Professional
Responsibility and recommending his suspension.
The Integrated Bar of the Philippines also submitted a report and
recommendation for the suspension of respondent from the
practice of law for a period of six (6) months.