OCA CIRCULAR NO. 31-2004, February 20, 2004

For the information and guidance of all concerned, quoted
hereunder is the, Resolution of the Court En Bane August 14, 2003 in
Administrative Case No. 4650 entitled “Rosalina Biascan vs. Alt;.
Marcial F, Lopez”, to wit:

“This Administrative case stems from a verified complaint^[1]
for disbarment, filed on October 4, 1996, by complaint Rosalina Biascan
against the respondent Atty. Marcial F. Lpez for alleged fraud or misrepresentation, breach of his duty as an officer of the court, and
betrayal of his oath as a lawyer amounting to gross misconduct, which
renders him unfit to continue is the practice of law.

Subject of the complaint in a 600-square meter lot located between
Constancia and Miguelin Streets in Sampaloc, Manila. Said property was
originally covered by transfer Certificate of Title (TCT) No. 34127 in
the name of Florencio Biascon. The latter died intestate, leaving behind
two parcels namely: the lot in Sampaloc, Manila, and other parcel in
Novaliches, Quezon City, coverted by TCT No. 87068.

In her complaint, Rosalina Biascan avers that she is the court-
appointed admirtistratix of the estate of her deceased father, Florencio
Biascan. That estate is the subject of Special Proceedings No. 98037
entitled “In the Matter of the Intestate Estate of the Deceased Timptea Zuluetc and Florencio Biascan?
pending before the Regional Trial Court (RTC) of Manila ,- Branch 4. ‘
Pursuant, to her appointment, she filed -her Inventory and Appraisal^[2] Report sometime.in November 1975.

In August 1977, respondent entered his appearance in the inestate
proceedings as counsel for an oppositor, Maria Manuel Biascan (now
deceased).^[3]

In an Order^[4] dated
April 2, 1981, the RTC declared complaint and her brother, German
Biascan, heirs of the late Florencio. Maria Manuel Biascan then, filed a
Motion for Reconsideration^[5] on June 6, 1981, but the trial court denied said motion on April 30, 1985.^[6]
Meanwhile, in complete disregard of the intestate proceedings and
without, knowledge and approval of the: lower court or complainant and
her brother, Maria Manuel Biascan executed an Affidavit of
Self-Adjudication^[7] on June
20, 1983 where she falsely, represented hereself as the sole heir of the
late Florencio Biascan. On July 12, 1983,, she then presenteathe
Affidavit of Self-adjudicatipn to the Register of Deeds of Manila, as a
result of which TCT No. 34127 .was cancelled and TCT No. 155384 issued
in her name.

Complainant further averred that on July 24, 1990, without v
the approval of the intestate court and, taking advantage, of the
aforementioned fraud, respondent Lopez registered with the Register of
Deeds a Deed of Assignment^[8]
dated December 22, 1977, which Maria Manuel Biascaa had executed in his
favor. In that deed, Maria Manuel Biascan ceded to respondent 210
square meters of the 600-square meter land now covered by TCT No 155384
Thereafter, the Register of Deeds of Manila issued TCT No 193790  covering ceded 210 square meters, in respondent’s name.^[9]

On June 15, 1992, respondent sold the 210-square meter lot
covered by TCT No. 193790 to the Spouses Danilo and Corazon Arganozaa in
whose favor TCT No. 208601 was issued.^[10]

According to complainant, all the foregoing transfers occurred
while Special Proceedings No. 98037 was still pending, but she
discovered the transfers, only in February 1993 after inquiries on . her
behalf were made with the Registries of Deeds, of Manila and Caloocan.^[11] Suits for the recovery of the properties are pending with the Regional Trial Courts of Manila, and Caloocan.^[12]

In his Comment/Answer^[13]
filed on November 17, 1998 , respondent Lopez denies committing any
fraud, misconduct, or breach, of duty to the, court, and asserts he
acted in good faith. According to him, what complainant Rosalina Biascan
reported in her Inventory and Appraisal report was a parcel of land
covered by TCT No. 24127 and not the Sampaloc property covered by TCT
No. 34127. Also, his acquisition of subject property and the resulting
issuance of TCT No. 193790 in his name was valid because the land was
payment for his legal services under a valid contingent fee contract
Respondent claims that Maria Manuel Biascan offered to pay him 35% of
the area of TCT No. 155384 for his legal services. Since there was no
notice of lis pendens on TCT No. 155384, he accepted the offer and the
Deed of Assignment was executed between them.^[14]

Respondent further asserts that complainant is guilty of laches,
as she failed to act swiftly to protect her alleged interest over the
subject property. He points out that from June 2, 1975, the date
complainant filed the petition for settlement and administration of the
intestate estate of Florencio Biascan, up to May 28, 1983 or for .
approximately eight (8) years, complainant failed to assert her rights
as owner of the property by either registering a claim to the subject
property or filing a case for recovery thereof.

Finally, respondent prayed for the suspension of the instant
administrative case on the ground that the recovery suits pending before
the RTCs of Manila and Galodcan raise issues that must first be
resolved before the instant complaint can proceed; otherwise, there
might be conflicting fir dings between said lower courts and this Court.

In our Resolution^[15]
of March 1, 1999 , we referred the instant complaint to the. Integrated
Bar of the Philippines (IBP) for investigation, report, and
recommendation.

On-August 3, 2002, the IBP Board of Governors passed Resolution .No. XV-2002-394, the full text of which reads as follows:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner of the Resolution/Decision as Annex “A”; and, finding the
recommendation fully supported by the evidence on record and the
applicable laws and rules, and considering that it misconduct which have
caused damage and prejudice to complaint and her brother, respondent is
hereby SUSPENDED from the practice of law for three (3) years.^[16]

This Resolution is now before this Court for confirmation.

At the outset, we note that there appears to be some concision
between the parties on whether the original TCT covering the property in
question was TCT No. 24127 or TCT No. 34127. Resort to the records
show, however, that both parties are in fact referring to the lot
located between Constancia and Miguelin Streets in Sampaloc, Manila.

On the issue of respondent’s liability, this Court agrees with the findings of the IBP Board of Governors.

It is clear from the records that when respondent entered his
appearance in Special Proceedings No. 98037 as counsel for Maria Manuel
Biascan in August 1977, complainant had already filed her Inventory and
Appraisal Report dated November 22, 1975, which listed the realty
covered by TCT No. 34127, as one of the properties forming part of the
Estate of Florencio Biascan. As counsel for an opposite, respondent must
have gone over the records of Special Proceedings No. 98037,, which
included the aforesaid Inventory and Appraisal Report. .Also, the. Deed
of Assignment itself stated that TCT.No.34127 was registered in
Florencio Biascan’s name and was the subject of Special Proceedings No.
98037. Clearly therefore, when Maria Manuel Biascan executed the Deed of
Assignment in December 22, 1977 to cover respondent’s contingent fees,
respondent had actual knowledge that the lot subject of said deed formed
part of the estate of Florencio Biascan. Notwithstanding this and the
fact that Special Proceedings No. 98037 was still pending,^[17]
respondent registered the Deed of Assignment in his -favor on July 24,
1990 and caused the transfer of title over the part of the land Maria
Manuel Biascan assigned to Mm. In so doing, the respondent transgressed
Article 1491^[18] of the Civil
Code expressly prohibiting a lawyer from acquiring property or rights
that may be the object of any litigation in which they, may take” part
by virtue of their profession.

Respondent’s assertion that the assignment was made pursuant to a
contingent fee contract will not exonerate him. True, a contract for a contingent fee is generally not covered by Article 1491

and is valid because the transfer or assignment of the property in
litigation takes effect only after the finality of a favorable judgment^[19] However, as aforesaid respondent caused the transfer of the subject property in his name during the pendency of Special Proceedings No. 98037. Thus, the. prohibition in Article 1491. clearly applies.^[20] Respondent is, therefore, liable for malpractice.^[21]

As a member of the bar, respondent is strictly mandated to comply
with the Attorney’s Oath as well as the Code of Professional
Responsibility,^[22] both of
which require him to obey the laws as well as the legal orders of duly
constituted authorities. The transgression of any, provision of law by a
lawyer is a reprehensible act, which the Court will not countenance.^[23]

Likewise, respondent defied the tenor and intent of the trial
court’s Order of April 2, 1981 when on July 24, 1990, he proceeded to
register the Deed of Assignment and caused the issuance of a new TCT in
his name. Note that respondent proceeded with such registration of
property included in the Estate of Florencio Biascan, despite the fact
that the trial court had ruled that aside from Maria Manuel Biascan,
complainant and her brother were legal heirs of Florencio Biascan. That
the Order 4ate4 April 2, 1981 was the subject of an appeal and had not
become final at the time he acquired title to the property does not
change the fact that there,is such an; Order. As a .lawyer and an
officer of the court, respondent should have respected said Order^[24]
and refrained from doing any act, which would have rendered such Order
ineffectual. It bears repeating that a lawyer should uphold the dignity
and authority of the court.^[25]
His actions violate Canon 1 of the Code of Professional
Responsibility., that requires every member of the, bar to promote
respect for law and legal processes.^[26]

Finally, respondent’s contention that the result of the recovery
suits should be awaited before any action is taken in the instant
Complaint fails to persuade us. What is addressed in this case is
whether respondent knowingly. acquired an interest over property subject
of Special Proceedings No. 98037 to the damage and prejudice of the
persons lawfully, entitled to said property as legal heirs and in
violation of respondent’s oath as a lawyer and his duty V as an officer
of the court. The question of whether complainant. herein, is entitled
to recovery is not in issue. Thus, the outcome of the recovery suits has
no bearing in the instant case.

On the matter of the imposable penalty, however, ibis Court is unable to
agree with the recommendation of the IBP Board of .Governors, it being
too harsh and not in accord with jurisprudence. In Valencia v. Cabanting,^[27]Bautista v. Gonzates,^[28] and Ordonio v. Eduarte^[29]
all involving violations of Article 1491 of the Civil Code, this Court
imposed the penalty of suspension of six (6) months on the respondents
therein. Considering the nature of the acts of professional misconduct
respondent committed, and the facts and circumstances of this case, the
Court finds, sufficient grounds to suspend respondent from the practice
of law for six (6) months.

WHEREFORE, respondent ATTY, MARCIAL F. LOPEZ is declared LIABLE for SERIOUS MISCONDUCT
as a lawyer. He is ordered SUSPENDED from the practice of law for SIX
(6) MONTHS, effective upon receipt of this Resolution, with a STERN WARNING’
that any future misconduct on respondent’s part will be dealt with more
severely. Let copies of this Resolution be circulated soonest to all
courts, tribunals, and quasi-judicial agencies of the country for their
information and guidance, and spread in the personal record of
respondent, Atty. Marcial F. Lopez.

SO ORDERED.”

Copy of this resolution was served upon the respondent thru his
counsel, on September 3, 2003, under Registry Return Receipt No. 27101.
Respondent’s motion for reconsideration of this Resolution was denied
with finality on 17 November 2003.

__20__ February 2004.

.

^[2] Id. at 10-11.

 ^[3] Id. at 2.

 ^[4] Id. at 12-18.

 ^[5] Id. at 19-21.

 ^[6] Id. at 24.

 ^[7] Id. at 22-23.

 ^[8] Id. at 30-32, 127.

 ^[9] Id. at 4, 33-34.

 ^[10] Id. at 4, 35-38.

 ^[11] Id. at 5.

 ^[12] Ibid.

 ^[13] Id. at 113.120.

 ^[14] Id. at 117.

 ^[15] Id. at 122.

 ^[16] Id. at 124.

 ^[17] Id. at 5, 115.

 ^[18] ART. 1491. The
foil owing, persons cannot acquire, purchase, even at a public or
judicial auction, either in person or through the mediation of another:

(1) The guardian, the property of the person or persons who may be. under his guardianship;

(2) Agents, the property whose.administration or sale may have
been entrusted to them unless the consent of the principal lias been
given;

(3) Executors and administrators, the property of the estate under administration;

(4) Public officers and employees, the property of the State or
of any subdivision thereof, or of any government owned or controlled
corporation, or institution, the administration of which : has been
entrusted to them; this provision shall apply to judges and government
experts in any manner whatsoever take part in the sale;

(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 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 the object of
any litigation in which they may-take part by virtue of their profession
(italics for emphasis).

(6) Any other special disqualified by law.

 ^[19] Director of Lands v. Ababa, G.R. No. L-26096, 27 February 1979, 88 SCRA 513, 520.

 ^[20] See Director of Lands v. Ababa, supra, at 519 citing Vda. De Laig vs. Court of Appeals, G.R. No. L-26882, 21 Noyember 1978, 86SCRA641

 ^[21] See Valencia v. Cabaziting, A.C.°Nos. 1302, 1391 & 1543, 26 April 1991 , 196 SCRA 302, 308.

 ^[22] Gamillav. Mariño, Jr.; A.C. No. 4763, 20 March 2003 , p. 14.

 ^[23] Bautista.v. Gonzalcs. AM. No. 1625. 12 February 1990 , 182 SCRA 151,160.

 ^[24] De Leon v. Torres, 99 Phil. 462, 466 (1956).

 ^[25] Surigao Minerd Reservation Board y. CIcribe!, G.R. No; L-27072, 9 January 1970 ,31 SCRA 1, 16-17.

 ^[26] CANON l.- A lawyer
shall uphold the Constitution, obey the laws of the land and promote
respect for law and legal processes. ..See also CANON 11.- A. lawyer
shall observe and maintain the respect due to the courts and to judicial
officers and should insist on similar conduct by others.

 ^[27] Supra, note 21 at 311.

 ^[28] Supra, note 23 at 165.

 ^[28] A. M. No. 3216, 16 March 1992, 207 SCRA 229, 233.