OCA CIRCULAR NO. 51-2005, May 05, 2005

For the information and guidance of all concerned, quoted
hereunder is the Decision of the Second Division dated March 16, 2005 in
Administrative Case No. 5485, entitled “Elmer Canoy vs. Atty. Jose Max
Ortiz”, to wit:

“There are no good reasons that would justify a lawyer virtually
abandoning the cause of the client in the midst of litigation without
even informing the client of the fact or cause of desertion. That the
lawyer forsook his legal practice on account of what might b,e perceived
as a higher calling, election to public office, does not mitigate the
dereliction of professional duty. Suspension from the practice is the
usual penalty, and there is no reason to deviate from the norm in this
case.

A Complaint ^[1]dated
10 April 2001 was filed with the Office of the Bar Confidant by Elmer
Canoy (Canoy) accusing Atty. Jose Max Ortiz (Atty. Ortiz) of misconduct
and malpractice. It was alleged that Canoy filed a complaint for illegal
dismissal against his former employer, Coca Cola Bottlers Philippines.
The complaint was filed with the National Labor Relations Commission
(NLRC) Regional Arbitration Board VI in Bacolod City.^[2]
Atty. Ortiz appeared as counsel for Canoy in this proceeding. In 1998,
the labor arbiter hearing the complaint ordered the parties to submit
their respective position papers. Canoy submitted all the necessary
documents and records to Atty. Ortiz for the preparation of the position
paper. Thereafter, he made several unfruitful visits to the office of
Atty. Ortiz to follow-up the progress of the case. After a final visit
at the office of Atty. Ortiz in April of 2000, during which Canoy was
told to come back as his lawyer was not present, Canoy decided to
follow-up the case himself with the NLRC. He was shocked to learn that
his complaint was actually dismissed way back in 1998, for failure to
prosecute, the parties not having submitted their position papers.^[3]
The dismissal was without prejudice. Canoy alleged that Atty. Ortiz had
never communicated to him about the status of the case, much less the
fact that he failed to submit the position paper.

The Comment ^[4]filed
by Atty. Ortiz is the epitome of self- hagiography. He informs the
Court that since commencing his law practice in 1987, he has mostly
catered to indigent and low-income clients, at considerable financial
sacrifice to himself. Atty. Ortiz claims that for more than ten years,
his law office was a virtual adjunct of the Public Attorney’s Office
with its steady stream of non-paying clients in the “hundreds or
thousands.”^[5] At the same
time, he hosted a legal assistance show on the radio, catering to far
flung municipalities and reaching “the people who need legal advice and
assistance.”^[6] Atty. Ortiz
pursued on with this lifestyle until his election as Councilor of
Bacolod City, a victory which he generously attributes to the help “of
the same people whom he had helped by way of legal assistance before.” ^[7]

Canoy was among those low-income clients whom Atty. Ortiz
deigned to represent. The lawyer was apparently confident that the
illegal dismissal case would eventually be resolved by way of
compromise. He claims having prepared the position paper of Canoy, but
before he could submit the same, the Labor Arbiter had already issued
the order dismissing the case.^[8]
Atty. Ortiz admits though that the period within which to file the
position paper had already lapsed. He attributes this failure to timely
file the position paper to the fact that after his election as Councilor
of Bacolod City, “he was frankly preoccupied with both his functions as
a local government official and as a practicing lawyer.” Eventually,
“his desire to help was beyond physical limitations,” and he withdrew
from his other cases and his “free legal services.”^[9]

According to Atty. Ortiz, “Mr. Canoy should have at least understood
that during all that time, he was free to visit or call the office and
be entertained by the secretary as [he] would normally report to the
office in the afternoon as he had to attend to court trials and report
to the Sanggunian office.”^[10]
He states that it was his policy to inform clients that they should be
the ones to follow-up their cases with his office, as it would be “too
difficult and a financial burden to attend making follow-ups with
hundreds of clients, mostly indigents” with only two office personnel.^[11]

Nonetheless, Atty. Ortiz notes that the dismissal of Canoy’s
complaint was without prejudice, thus the prescriptive period had been
tolled. He claims not being able to remember whether he immediately
informed Canoy of the dismissal of the case, though as far as he could
recall, Canoy had conveyed a message to him that he had a lawyer to
handle the case, thus his office did not insist on refiling the same.^[12]

The matter was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.^[13]
Canoy eventually submitted a motion withdrawing the complaint, but this
was not favorably acted upon by the IBP in view of the rule that the
investigation of a case shall not be interrupted or terminated by reason
of withdrawal of the charges.^[14]
Eventually, the investigating commissioner concluded that “clearly, the
records show that [Atty. Ortiz] failed to exercise that degree of
competence and diligence required of him in prosecuting his clients’
(sic) claim,” and recommended that Atty. Ortiz be reprimanded.^[15]
The IBP Commission on Discipline adopted the recommendation, with the
slight modification that Atty. Ortiz be likewise warned that a
repetition of the same negligence shall be dealt with more severely in
the future.

The Court is sensitive to the difficulties in obtaining legal
representation for indigent or low-income litigants. Apart from the
heroic efforts of government entities such as the Public Attorney’s
Office, groups such as the IBP National Committee on Legal Aid and the
Office of Legal Aid of the UP College of Law have likewise been at the
forefront in the quest to provide legal representation for those who
could not otherwise afford the services of lawyers. The efforts of
private practitioners who assist in this goal are especially
commendable, owing to their sacrifice in time and resources beyond the
call of duty and without expectation of pecuniary reward.

Yet, the problem of under-representation of indigent or low-
income clients is just as grievous as that of non-representation.
Admirable as the apparent focus of Atty. Ortiz’s legal practice may have
been, his particular representation of Canoy in the latter’s illegal
dismissal case leaves much to be desired.

Several of the canons and rules in the Code of Professional
Responsibility guard against the sort of conduct displayed by Atty.
Ortiz with respect to the handling of Canoy’s case.

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 18-A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.

Rule 18.03-A lawyer shall not neglect a legal matter entrusted
to him, and his negligence in connection therewith shall render him
liable.

Rule 18.04-A lawyer shall keep the client informed of the
status of his case and shall respond within a reasonable time to the
client’s request for information.

CANON 22-A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE CIRCUMSTANCES.

Rule 22.02- A lawyer who withdraws or is discharged shall,
subject to a retainer lien, immediately turn over all papers and
property to which the client is entitled, and shall cooperate with his
successor in the orderly transfer of the matter, including all
information necessary for the proper handling of the matter.

Atty. Ortiz should have filed the position paper on time, owing
to his duty as counsel of Canoy to attend to this legal matter entrusted
to him. His failure to do so constitutes a violation of Rule 18.03 of
the Code of Professional Responsibility.

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 o 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.^[16]

It indeed Atty. Ortiz’s schedule, workload, or physical
condition was such that he would not be able to make a timely filing, he
should have informed Canoy of such fact. The relationship of
lawyer-client being one of confidence, there is ever present the need
for the client to be adequately and fully informed of the developments
of the case and should not be left in the dark as to the mode and manner
in which his/her interests are being defended.^[17]

There could have been remedies undertaken to this inability of
Atty. Ortiz to file on time the position paper had Canoy been told of
such fact, such as a request for more time to file the position paper,
or maybe even the hiring of collaborating counsel or substitution of
Atty. Ortiz as counsel. Since Atty. Ortiz did not exercise the necessary
degree of care by either filing the position paper on time or informing
Canoy that the paper could not be submitted seasonably, the ignominy of
having the complaint dismissed for failure to prosecute could not be
avoided.

That the case was dismissed without prejudice, thus allowing
Canoy to refile the case, hardly serves to mitigate the liability of
Atty. Ortiz, as the failure to file the position paper is per se a violation of Rule 18.03.^[18]

Neither is the Court mollified by the circumstance of Atty.
Ortiz’s election as a City Councilor of Bacolod City, as his adoption of
these additional duties does not exonerate him of his negligent
behavior. The Code of Professional Responsibility does allow a lawyer to
withdraw his legal services if the lawyer is elected or appointed to a
public office.^[19] Statutes
expressly prohibit the occupant of particular public offices from
engaging in the practice of law, such as governors and mayors,^[20] and in such instance, the attorney-client relationship is terminated.^[21]
However, city councilors are allowed to practice their profession or
engage in any occupation except during session hours, and in the case of
lawyers such as Atty. Ortiz, subject to certain prohibitions which are
not relevant to this case.^[22] In such case, the lawyer nevertheless had the choice to withdraw his/her services.^[23]
Still, the severance of the relation of attorney-client is not
effective until a notice of discharge by the client or a manifestation
clearly indicating that purpose is filed with the court or tribunal, and
a copy thereof served upon the adverse party, and until then, the
lawyer continues to be counsel in the case.^[24]

Assuming that Atty. Ortiz was justified in terminating his
services, he, however, cannot just do so and leave complainant in the
cold unprotected. ^[25] Indeed,
Rule 22.02 requires that a lawyer who withdraws or is discharged shall,
subject to a lien, immediately turn over all papers and property to
which the client is entitled, and shall cooperate with his successor in
the orderly transfer of the matter. Atty. Ortiz claims that the reason
why he took no further action on the case was that he was informed that
Canoy had acquired the services of another counsel. Assuming that were
true, there was no apparent coordination between Atty. Ortiz and this
new counsel.

In fact, it took nearly two years before Canoy had learned that
the position paper had not been filed and that the case had been
dismissed. This was highly irresponsible of Atty. Ortiz, much more so
considering that Canoy was one of the indigent clients whom Atty. Ortiz
proudly claims as his favored clientele. It does not escape the Court’s
attention that Atty. Ortiz faults Canoy for not adequately following up
the case with his office.^[26]
He cannot now shift the blame to complainant for failing to inquire
about the status of the case, since, as stated above, it was his duty as
lawyer to inform his clients of the status of cases entrusted to him.^[27]

The appropriate sanction is within the sound discretion of this
Court. In cases of similar nature, the penalty imposed by the Court
consisted of either a reprimand, a fine of five hundred pesos with
warning, suspension of three months, six months, and even disbarment in
aggravated cases.^[28] Given
the circumstances, the Court finds the penalty recommended by the IBP
too lenient and instead suspends Atty. Ortiz from the practice of law
for one (1) month. The graver penalty of suspension is warranted in lieu
of an admonition or a reprimand considering that Atty. Ortiz’s
undisputed negligence in failing to timely file the position paper was
compounded by his failure to inform Canoy of such fact, and the
successive dismissal of the complaint.

Lawyers who devote their professional practice in representing
litigants who could ill afford legal services deserve commendation.
However, this mantle of public service will not deliver the lawyer, no
matter how well-meaning, from the consequences of negligent acts. It is
not enough to say that all pauper litigants should be assured of legal
representation. They deserve quality representation as well.

WHEREFORE, respondent Atty. Jose Max S. Ortiz is ordered
SUSPENDED from the practice of law for one (1) month from notice, with
the warning that a repetition of the same negligence will be dealt with
more severely. Let a copy of this decision be attached to respondent’s
personal record in the Office of the Bar Confidant and copies be
furnished to all chapters of the Integrated Bar of the Philippines and
to all the courts in the land.

SO ORDERED.”

Copy of the decision was received by respondent on April 12, 2005 as shown by Registry Return Receipt No. 35987.

__05__ May 2005.

	PRESBITERO J. VELASCO, JR.
	Court Administrator

^[2] Id. at 2.

^[3] Id. at 3.

^[4] Id. at 23-29.

^[5] Id. at23.

^[6] Id. at 24.

^[7] Ibid.

^[8] Id. at 26

^[9] Ibid.

^[10] Ibid.

^[11] Ibid.