BRIGIDO TOQUIB, COMPLAINANT, VS. ATTY. VALERIANO TOMOL, JR., RESPONDENT.

On January 3, 1969
We promulgated our decision in the above-entitled
administrative case, the dispo­sitive part of which
reads as follows:

“WHEREFORE, judgment is hereby ren­dered suspending Attorney Valeriano Tomol, Jr. from the
practice of law for one (1) year from the date this judgment becomes final.

“Let this decision be noted in res­pondent’s record – as a
member of the Bar – in this Court.”

Before Us now is a Motion for
Reconsideration filed by respondent on January 20 of the same year, submitting
the following as grounds in support thereof:

“I.    WHEN THE CLIENT IS IN POSSESSION OF THE
PROPERTY IN QUESTION IN A CASE, AND THE SAID CLIENT IS THE DEFENDANT, A LAWYER
IS NOT DERELICT IN HIS DUTY IF HE DOES NOT MOVE FOR THE RESETTING OF THE
CONTINUATION OF THE HEARING OF THE CASE; and

II.    THAT THE NEGLIGENCE FOR WHICH A LAWYER IS
HELD RESPONSIBLE UNDER THE CANONS OF LEGAL ETHICS IS PERSONAL IN NATURE
INASMUCH AS IT HAS TO BE COUPLED WITH AN EVIL, MALICIOUS, DISHONORABLE, OR
CORRUPT MOTIVE; IT CANNOT, THEREFORE, BE A VICARIOUS RESPONSIBILITY, AND COULD
NEVER ARISE BECAUSE OF CONSTRUCTIVE NOTICE, PARTICULARLY IF SUCH CONSTRUCTIVE
NOTICE IS THROUGH A PERSON NOT WITHIN HIS EMPLOY AS A LAWYER.”

Mindful of the fact that the present proceedings involve, on the
one hand, the right of a litigant to seek redress against a member of the Bar
who has, allegedly, caused him damage, either through malice or negligence,
while in the performance of his duties as his counsel, and, on the other, the
right of that member of the Bar to protect and preserve his good name and
reputation, We have again gone over and considered the different aspects of the
case.

It appears that complainant, on behalf of his father, sought to
disbar respondent on the ground that in an action for the recovery of a parcel
of land in the Court of First Instance of Southern Leyte
(Civil Case No. R-958) in which his parents, Teodulo
de Paz and Margarita de Paz, were defendants, respondent neglected to notify
him or his father of the taking of the latter’s deposition, for which reason he
was not able to appear to give such deposition; that by reason thereof the
Court considered the case submitted for decision without the defendants having
been able to present evidence in their behalf; that, subsequently, respondent
also failed to notify complainant or his father of the adverse decision
rendered in said case, for which reason they likewise lost the right to appeal therefrom.

Respondent did not answer inspite of
the fact that he was duly served with a copy of the complaint and docu­ments
attached thereto.  After receiving
complainant’s evidence the Solicitor General, under date of February 28, 1968, submitted his
report, finding the following facts to have been established:

“The Facts

Stripped of unnecessary details, the facts are:  Sometime in 1957, Brigido
Toquib sought to engage the professional services of
respondent to defend his father Hermo­genes Toquib, who was sued by the spouses Teodulo
de Paz and Margarita de Paz in the Court of First Instance of Maasin, Southern Leyte
for recovery of possession of a parcel of land (Case No. R-958;
pp. 5, t.s.n., April 6, 1964;
5, t.s.n., April 10, 1964).  Res­pondent told him that inasmuch as he had
a partner in the law office, and it being their agreement not to accept a case
singly, he (complainant) call on him at his law office to be able to talk with
his partner, Atty. Antonio Veloso (p. 5, t.s.n., April 10, 1964). 
Complainant agreed saying that it was his de­sire to ask Atty. Veloso to handle the case anyway but because he did not
know him, he had to see respondent (ibid.). 
Thereafter, the partners consented to handle the case for complainant’s
father and filed the corres­ponding answer in his behalf (pp. 6, 7, t.s.n., April 10,
1964).

Thrice the case was set for hearing during which respondent’s
partner, now deceased, per­sonally appeared on the first two occasions and the
respondent himself, on the last (p. 7, t. s.n., April 10, 1964). 
After plaintiffs had finished presenting their evidence respondent
orally prayed the Court to allow him to take the deposition of complainant’s
father in Hi­nunangan where he was residing, as he
was too old to journey to Maasin being already 89
years old, which motion was granted and the deposi­tion taking set for December
22, 1960 (pp. 5, April 6, 1964; 32, April 8, 1964; pp. 8, 9, 11, April 10,
1964).

On the date set for the taking of the deposition before the Justice
of the Peace, respondent travelled to Hinunangan, taking a boat from Tacloban
to Cabalian and a bus from the last mentioned place
to Hinunangan, arriving there at noon (pp. 11, 12, t.s.n., April 10, 1964; pp. 3, 4, 5, t.s.n.,
November 19, 1964).  When the case was
called by the Justice of the Peace at 2:00
o’clock in the afternoon, only counsel for the plaintiff, Atty.
Feliciano Nombrado, and for the defendant, the herein
respondent, appeared (pp. 17, 18, t.s.n., Nov. 19, 1964).  Respondent moved that the case be called
later to await the defendant, complainant’s father, whose deposition was to be
taken (p. 18, t.s.n., Nov. 19, 1964).  The Judge granted him one hour within which to
wait for the would-be deponent (p. 19, t.s.n., Nov.
19, 1964).  When the case was called
again at 3:00 o’clock in the afternoon respondent moved for postponement
because the would-be deponent had not yet arrived, but the Judge denied his
motion on the ground that his authority was to take the deposition only on that
date and nothing more, whereupon he informed the parties present that he would
submit the corresponding report to the Court of First Instance which he did
(pp. 13, 19, 20, t.s.n., Nov. 19, 1964).

On May 19, 1961,
the Court of First Instance entered an order considering the case (No. R-958)
submitted for decision in view of the therein defendant’s failure to attend the
scheduled deposition (Exhibit D-2, p. 8, Sup. Crt. rec.; p. 38, t.s.n., April 8, 1964).

On May 25, 1961,
the Court of First Instance rendered judgment in favor of the plaintiffs and
against the defendant declar­ing the former the true and real owners of the
property and ordering the latter to vacate the same immediately (Exhibit E, pp.
3-5, rec., supra; p. 37, t.s.n., April 8,
1964).

Between June and August, 1961 complainant on several occasions went
to see respondent inquiring about the status of the case and asking him when
his turn to present evidence would be, but respondent consistently advised him
to wait for the notice of hearing (pp. 9, 10, t.s.n.,
April 6, 1964; pp. 8, 9, t.s.n., April 8, 1964).

Sometime in June 1962, complainant’s father received a writ of
execution served upon him by the provincial sheriff in Case No. R-958 (p. 11, t.s.n., April 6, 1964; p.
10, t.s.n., April 8, 1964).  Complainant lost no time in seeing respondent
and asked him why the writ since his father had not even presented his evidence
(ibid.).  Respondent advised him
to tell his father to accept the writ (p. 13, t.s.n.,
April 6, 1964).

Because respondent did not take any action in the case, complainant
engaged the services of Atty. Romeo Gomez who filed a notice of appeal (p. 15, t.s.n., Apr. 6, 1964). 
Upon checking up the record in court complainant found that on June 7,
1961, res­pondent received a copy of the decision through Manuel Labrador, whom
he had authorized to re­ceive mail matters in his behalf, as evidenced by the
registry receipt card, Exhibit C (p. 31, O.S.G. rec.; pp. 16, 20, 21, 22, t.s.n., April 6, 1964; p. 10, t.s.n.,
Nov. 19, 1964; pp. 5, 6, 7, t.s.n., Nov. 20, 1964).

Atty. Gomez advised complainant to go back to respondent to ask
from him a copy of the decision (p. 15, t.s.n., April
6, 1964).  When complainant went to see
respondent again, the latter gave him a letter for delivery to Atty. Gomez
stating that he had not received a copy of the decision and suggesting that he
‘study the possibility of filing an action for the annullment
of the decision, inasmuch as the reglementary period
for filing a motion to vacate the judgment under the same proceedings has already
expired’ (Exhibit B, p. 30, O.S.G. rec.; pp. 20, t.s.n.,
April 6, 1964; p. 7, t.s.n., April 10, 1964).”

As stated in the report of the Solicitor General, the acts or
omissions constituting negligence inquired into in the investigation of the
case were:  (1) respondent’s failure to
notify complainant or his father of the deposition set for December 22, 1960
before the Justice of the Peace of Hinunangan; (2)
his failure to take steps to protect the interest of his client, and (3) his
failure to notify the client or his father of the adverse decision rendered by
the Court of First Instance, in order that an appeal therefrom
could be taken to a higher court.

Anent the first point of inquiry, the Solicitor General says the
following in his report:

“In regard to the first point of inquiry, complainant claims
that respondent never notified him of the scheduled deposition and that everytime he came to see him to inquire for the date when
evidence in behalf of his father would be adduced, respondent’s invariable
answer was for him to wait for the notice of hearing but which never received
(pp. 9, 10, t.s.n., April 6, 1964; p. 32, April 8,
1964).  Respondent, however, testified
that on the date of the last hearing in the Court of First Instance, during
which he orally moved that he be allowed to take the deposition of
complainant’s father in Hinunangan before the Justice
of the Peace, which motion was granted, he notified the complainant who was present
in Court, of the date set for the taking of the deposition of his father on
December 22, 1960; that on that date he proceeded to Hinunangan,
taking a boat from Tacloban to Cabalian
and a bus from the last mentioned place to Hinunangan
where he arrived at noon of the same day; that when the case was called at 2:00
o’clock in the afternoon, complainant or his father was not present; that he
asked that the case be called later to await them; that when the case was
called again an hour later, he asked that the taking of the deposition be
postponed but in view of the objection of counsel for the plaintiffs the Judge
denied his motion for postponement, claiming that his authority was only to
take the witness’ deposition; and that when he saw complainant in the public
market and asked him why he and his father failed to appear in court,
complainant said that he forgot all about it (pp. 11, 12, 13, t.s.n., April 10, 1964; pp. 3, 4, 5, 18, t.s.n., November 19, 1964).

“We are inclined to believe that res­pondent really informed
complainant of the date set for the taxing of his father’s de­position
otherwise respondent who was resid­ing in Silago
would not have journeyed all the way from Tacloban to
Cabalian by boat and to Hinunangan
by bus on the said date.

“However, we do not find respondent to­tally blameless.  He himself said that after the Justice of the
Peace of Hinunangan had denied his motion for
postponement of the tak­ing of the deposition of complainant’s father on
December 22, 1960, and had informed the parties present that he would make a
report to the Court of First Instance, he thought that proper notice would be
sent to the par­ties by the Court.  But
when questioned by the investigating Solicitor if he asked the Court of First
Instance for another date to take the deposition of the witness, he answered he
did not.  Respondent’s inaction evinces
neglect on his part to protect the interest of his client.”

We concur with the finding made and the conclusion arrived at by
the Solicitor General, as set forth in the above-quoted portion of his
report.  We feel, however, that something
more must be said about matters related thereto.

It is, of course, obvious that complainant’s credi­bility has not
been enhanced by his claim that respondent had not notified him at all
regarding the date set for the taxing of the deposition of his father – a claim
correctly overruled by the Solicitor General, Indeed, were it true that
respondent had failed to give proper notice to com­plainant or his father, his
going to Hinunangan and his appearance before the
Justice of the Peace of said munici­pality on December 22, 1960 – which for him
meant a long trip by land and sea – would have been completely sense­less.  As he did so, the presumption must be that he
had duly notified his client, through the latter’s son, the complainant, of the
date and place fixed for the taking of the deposition and had, therefore,
reasonable grounds to expect that the deponent would be present there.

We are also of the belief that, upon the record, the justice of
the peace was not entirely blameless.  In
view of deponent’s non-appearance, it would have been perfectly within his
Honor’s prerogative to postpone – as, indeed, respondent prayed him to do – the
taking of the deposition to some future date, instead of denying respondent’s
motion for postponement and forthwith considering the matter closed, and
submitting thereafter the corresponding report to the Court of First Instance.

On the other hand, the actions taken in the premises by the Court
of First Instance:  (a) issuing on May 19, 1961 an order considering the
case (Civil Case No. R-958) submit­ted for decision in view of the failure of
one of the therein defendants to attend the scheduled deposition, and (b) the
rendition on the 25th of the same month of a judgment in favor of the
plaintiffs declaring them to be the true and real owners of the property in
question and ordering the defendants to vacate the same immediately, were –
procedural­ly speaking – wrong, if not irregular.  Instead of taking such drastic steps, the
said court should have either issued an order requiring the defendants to show
cause why the case should not be deemed submitted for decision, or set the case
for a resumption of the trial.  Either
procedural step was proper considering firstly, that even if the deposition had
been taken as scheduled, it was still necessary thereafter to set the case for
trial to enable the defendants to formally present said deposition as part of
their evidence; and secondly, that from the date set for the taking of the
deposition (December 22, 1960) to the date when the Court entered the order
considering the case submitted for decision (May 19, 1961), only a little less
than five months had elapsed.  The error
of the court was further compounded and became more prejudicial by the
rendition of judgment on May 25, 1961,
without further proceedings.

The shortcomings of the courts discussed above do not, of course,
absolve respondent of the charge of negli­gence in the performance of his
duties as counsel of com­plainant’s parents. 
Indeed, it is quite clear from the foregoing that after the Justice of
the Peace of Hinunangan had refused to postpone the
taking of the deposition of complainant’s father, (1) respondent could have
proceeded to give notice of the taking of the deposition of his client in
accordance with Rule 24 of the Rules of Court, and (2) after said justice of
the peace had submitted his report to the Court of First Instance, respondent
could have asked the latter either to set another date for the taking of the
deposition aforesaid or to set the case for trial for the presentation of such
evidence as was at his disposal to support his client’s case.  While, to a certain degree, he was right in
waiting for a court notice concerning the con­tinuation of the trial, this did
not relieve him of his duty, as defendant’s counsel, to seek from the court the
reliefs already mentioned.  Instead, he allowed the period of several
months to elapse without taking any step in the premises, his inaction having
prompted the Court of First Instance to declare the case submitted for decision
and, subsequently, to render its decision therein.

The question of whether or not notice of the judgment aforesaid
was duly served on respondent is, upon the evidence of record, not free from
doubt.

It is not disputed that, as evidenced by the registry return card
Exhibit C, the registered matter supposed to contain the decision rendered by
the Court of First Instance in Civil Case No. R-958 was received by Manuel Labrador,
postmaster of the municipality of Hinunangan.  Equally beyond question is the fact that Labrador
was not connected in any capacity whatsoever with respondent’s law office.  At the time material to this particular
question, respondent was the municipal mayor of Silago
to which position he had been elected in 1959. 
While there seems to be no concrete evidence showing that the office of
respondent as mayor and that of Labrador as postmaster
were located in the same building, it is justified to presume, We believe, that they were in fact located in the same
building or in buildings relatively near to one another.  These facts are relevant in the determination
of the conflicting claims of the parties on the question of whether postmaster Labrador
was or was not authorized by respondent to receive registered letters addressed
to him.  Labrador
says that he was, but respondent denies it. 
We, therefore, nave respondent’s word against Labrador‘s.  It may be contended that the latter’s word is
more credible because he is not biased, having nothing to gain or lose in the
present proceedings.  This is, however,
more apparent than real because if, as respondent claims, he had never
authorized Labrador to receive any mail matter, registered or otherwise, on his
behalf, and this not withstanding Labrador received the registered letter to
which the return card Exhibit C refers, it is clear that the could be called to
account for such unauthorized act.  He
was, there­fore, naturally interested in maintaining that respondent had given
him such authority.  If their offices
were in the same building or in different buildings but relatively near each
other, what need was there for respondent to give such authority to Labrador
when he had the municipal secretary or any clerk in his office as mayor who
could accept delivery of mail matters from the post office on his behalf?

On the other hand, it is likewise obvious that respondent is
vitally interested in showing that he had not given such authority to Labrador
because if he did, the inevitable conclusion would be that Labrador’s
act is binding upon him.

Assuming that, in the light of these circumstances, Labrador’s
testimony could merit more weight than that of respondent, We
ask:  Is it sufficient to justify a
finding of guilt against respondent in connection with the matter under
discussion?  We believe it is not.

Moreover, even assuming that such authority was in fact given to
Labrador, the latter could go no farther than to testify that he delivered the
registered letter containing the decision of the Court not to respondent
himself, but to a certain Francisco Celleza,
municipal secretary of Hinunangan.  Assuming again that the latter actually
received the, registered letter from postmaster Labrador,
is there positive evidence in the record showing that he, Celleza,
thereafter delivered it to respondent? 
There is none.  The most that
complainant’s side could possibly say in this regard is that it must be
presumed that Celleza did deliver said registered
letter to respondent.  This presumption
is not of strong validity, considering that respondent could not have possibly
remained passive or inactive after receiving the adverse decision of the
Court.  There is no indication of any
kind in the record that he had turned hostile to his own client and that he had
ever intended to deprive the latter of his right to appeal from said
decision.  That for a considerable time
after Labrador received the registered letter containing the decision of the
court respondent had taken no step to move for its reconsideration or to appeal
therefrom, would seem to bolster respondent’s
contention that he had no actual knowledge at all of that decision until com­plainant
told him about the writ of execution issued by the court.  From the foregoing, it is obvious that there
is a missing link in the chain of evidence necessary to hold respondent liable
of actually having received the decision mentioned heretofore and of having,
thereafter, through negligence or malice, failed to notify his client about it
and to take proper steps to protect his rights.

It has been said that charges meriting disciplinary actions
against a member of the Bar generally involve the motives that induced him to
commit the act or acts charged and that, to justify disbarment or suspension
the case against him must be clear and free from doubt, not only as to the act
charged but as to his motive.  As punishment
by disbarment or suspension, will deeply affect a lawyer’s professional life,
neither should be imposed unless the case against him is free from doubt not
only as to the act charged but as to his motive.  In the case at bar, the question of whether
or not respondent actually received the decision rendered by the Court of First
Instance would seem to be fairly debatable. 
Besides, as far as the record discloses, respondent had no motive or
reason at all to maliciously refrain from advising his client of the rendition
of the adverse decision and to take corresponding steps in the case to protect
his rights.

It is, therefore, our considered view that respondent may be
found guilty, as he is hereby found guilty only of negligence in the
performance of his duties as attorney of record of the spouses Teodulo de Paz and Margarita de Paz, as above indicated for
which he is hereby reprimanded, with warning that any similar misconduct will
be punished more drastically.  Let this
judgment be recorded in res­pondent’s personal record as a member of the Bar.

To the extent above indicated, the original decision rendered in
this case is modified.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro,
Fernando, Teehankee, Barredo,
and Villamor, JJ., concur.