G.R. No. 1107. April 02, 1904

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3 Phil. 577

[ G.R. No. 1107. April 02, 1904 ]




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 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

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 Balmori 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

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 f 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 a few pages, Avas 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

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 f
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 by making application, to the court for an order
authorizing them to retire.

Second. That they entered into a contract of employment with
thousands 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
retainers 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 Kenado. (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

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 readied, 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 respondent,
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 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 respondents 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 respondents 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 respondents 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 that 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.Dommguez, 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 interests 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

On the 2d of December Lieutenant Trent mailed amended complaints
against Cardona to Montagne & Dominguez at Manila. Lieutenant Trent
telegraphed Mr. Dominguez at Manila December 2 that Cardona would be
arraigned on Thursday. He telegraphed to Rosales December 10, to
Dominguez, not to fail to stop on his way to Manila. He also
telegraphed 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 defending 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

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 imprisoned 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
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

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 statement 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

At the trial of Sarmiento, when it was proposed to introduce this
money in evidence, respondents consented on condition that the court
authorize ” 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 lengthy and ingenious argument, in which they contend that these
proceedings should be dismissed, without regard to the merits; for the

” 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
client; 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

Section 21 of the Code of Civil Procedure provides that a member of
the bar may be removed 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 or 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 fine 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 that party, 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 provision 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, 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 complaint 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 practices of the respondents constituted the gravest offends,
we are inclined to take a lenient view of the charges. While we can not
excuse the respondents, 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., did not sit in this case.


Date created: January 24, 2019


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