OCA CIRCULAR NO. 90-2004, August 16, 2004

For the information and guidance of all concerned, quoted hereunder
is the Decision of the Third Division of this Court dated January 29,
2004 in Administrative Case No. 4401 entitled “Biomie Sarenas-Ochagabia
vs. Atty.

Balmes L.. Ocampos”, to wit:

“On January 25, 1995, complainant Biomie Sarenas-Ochagabia lodged a complaint^[1]
against her former counsel, respondent Atty. Balmes L. Ocampos, whose
legal services she, together with her aunts Toribia Garban de Detalla
and Rosenda Garban vda. de Denore as co-plaintiffs, engaged in Civil
Case No. 91-39 before Branch 15 of the Regional Trial Court of Ozamis
City (for recovery of possession and ownership of a parcel of land).

An adverse decision^[2]
having been rendered against the plaintiffs in above-mentioned civil
case on September 7,1992 , Atty. Ocampos filed a notice of appeal^[3] at the behest of the former.^[4]

The Court of Appeals gave the plaintiffs-appellants 45 days from notice to file their brief^[5] but before the lapse of the period, their counsel Atty. Ocampos, upon motion,^[6]
was granted a 90-day extension of time to file the brief. The extended
period lapsed, without, however, any appellants’ brief being filed,
prompting the

Depite the grant of respondent’s motion for extension of time to submit his position paper,^[18] he failed to submit one.^[19]

The committee created for the purpose of investigating the case
in Ozamis City thereupon recommended that the case be resolved on the
basis of the pleadings and records on file.^[20]

Investigating Commissioner Victoria G. de los Reyes, in her Report and Recommendation^[21] dated August 29, 2003, faulted respondent for violation of the Code of Professional Responsibility, “particularly Rule 18.01^[22] and Rule 18.03 x x x,” and recommended the imposition of the penalty of suspension for six months, she ”observing as follows:

It is worthwhile to mention here that in the case of “in re Santiago F. Marcos, 156 SCRA 844 (1987)”, a lawyer’s failure to file brief for his client amounts to inexcusable negligence, x x x

In the instant case, the respondent Arty. Ocampos had no
justifiable excuse for not preparing and filing the needed appellants’
brief. Granting that he was HI during that time, he could have written
to the complainant about it so that the latter will be able to hire
another lawyer to handle the case for her and to prepare and file the
appellants’ brief. He also failed to make the necessary Manifestation
and Motion with the Court of Appeals. Sad to state, the respondent
failed to do all these in blatant violation of his duty towards his
client and to the Courts.

We therefore maintain that a lawyer’s neglect of duty should not be tolerated and for such inaction he has to be penalized.

The undersigned Commissioner could have , recommended for a
stiffer penalty. But considering that he ;’ ‘ is now in the twilight
years of his life, and for humanitarian reasons, it is recommended that
he just be suspended from the practice of law. (Emphasis in the
original)^[23]

By Resolution of September 27, 2003 , the IBP Board of Governors
adopted the Report and Recommendation of the Investigating Commissioner
with the modification that the penalty of suspension should only be for
four months.^[24]

This Court finds the IBP Board Resolution faulting respondent in
order. A laywer engaged to respondent a client in a case bears the
responsibility of protecting the latter’s interest with outmust
diligence. By failing to file appellants’ brief, respondent was remiss
in the discharge of such responsibilty. He thus violated the Code of
Professional which provides:

Rule 12.03. A lawyeiTshall not, after obtaining extensions of
time to file pleadings, memoranda or briefs, let the period lapse
without submitting the same or offering an explanation for his failure
to do so.

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

That respondent accepted to represent complainant et al. gratis et amove
does not justify his failure to exercise due diligence in the
performance of his duty to file appellants’ brief. Every case a lawyer
accepts deserves full attention, diligence, skill, and competence
regardless of its importance and whether he accepts it for a fee or for
free.^[26]

It bears emphasis that a client is entitled to the benefit of any
and every remedy and defense that is authorized by the law and expects
his lawyer to assert every such remedy or defense.^[27]

Respondent’s claim that he conferred with complainant to request
Atty. Osorio to draft and file the appellants’ brief does not persuade,
especially given his filing of a motion of extension of time to file
brief upon the grounds therein stated, without him mentioning that Atty.
Osorio was going to be the one to prepare and file it

Until his final release from the professional relationship with a
client, a counsel of record is under obligation to protect the client’s
interest. That is why if a party has a counsel of record, a court does
not recognize any other representation on behalf thereof unless it is in
collaboration with such counsel of record or until a formal
substitution of counsel is effected. Since respondent had not then
withdrawn as counsel as he, it bears repeating, in fact filed a motion
for extension of time to file brief, he was under obligation to
discharge his professional responsibility.

As for complainant’s allegation that respondent denied that the
appeal was dismissed by the appellate court, it does not merit
consideration, no factual finding thereof being reflected in the IBP
Report and Recommendation.

A word on the penalty to be imposed In administrative complaints,
this Court has exercised its discretion on what penalty to impose on the
basis of the facts thereof. Thus, for a lawyer’s failure to file a
bried or their pleading, this Court imposed penalties ranging from
reprimand,^[28] warning with fine,^[29] suspension^[30] and, aggrevated cases disbarment.^[31]

In the present case, owing to respondent’s advanced age, this Court imposes upon him the penalty of suspension for three months.

WHEREFORE, for violation of the Code of
Professional Responsibility, respondent Atty. Balmes L. Ocampos is
SUSPENDED from the practice of law for three (3) months effective upon
the finality hereof, with WARNING that a repitition thereof will be
dealt with more severely.

SO ORDERED.”

In a resolution of the Third Division dated May 19, 2004, the Court
Resolved to let the copy of the decision of January 29, 2004 he deemed
served on Atty. Ocampos, it appearing that said copy of the decision was
returned unserved with postmaster’s notation “party out”.

__16__ August 2004.