OCA CIRCULAR NO. 42-2004, March 11, 2004

For the information and guidance of all concerned, quoted hereunder is the Decision of the Court. En Banc dated December 11, 2003
in Administrative Case No. 5834, to wit:

“The relationship between a lawyer and a client is highly fiduciary; it requires if high degree of fidelity and good faith.^[1] The ‘Code of Professional Responsibility states:

CANON 17. – A LAWYER OWES.’FIDELITY TO 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.

We are once again called upon to reiterate these dicta in the instant administrative matter before us.

On July 31, 2001, Teresita D. Santeco” filed a Verified Complaint^[2]
with the Committee on Bar Discipline of the Integrated Bar of the
Philippines praying that appropriate sanctions be meted on respondent
Atty. Lima B. Avance for mishandling Civil Case No. 97-275.

Complainant averred that she was the defendant in an action for
ejectment docketed as Civil Case No. 50988 filed with Branch 62 of the
Makati City’ Metropolitan Trial Court (MTC). On March 3, 1997, the trial
court rendered judgment against her. Thereafter, she filed a
supersedeas bond with the Clerk of Court of the Makati MTC.

Sometime in February 1997, during the pendency of the ejectment case, complainant filed an action to Declare Deed of
Absolute Sale Null and Void aad for Reconveyance with Damages with
Branch 147 of the Makati City Regional Trial Court, The case ‘was
entitled, ‘Feticiana DavidSanteco, et ai v. Ramon Gutierrez, et. al. v. Ramos Gutierrez, et al., and docketed s Civil Case No. 97-275.

On or before March 1998; complainant terminated the services of
her then counsel and engaged the services of respondent Atty, Luna B.
Avance as her counsel de parte in both cases. Complainant agreed to and
did pay respondent P12,000.00 as acceptance fee for her services.^[3]

In June 1997 and August 2000, complainant paid respondent the
sums of P1,500.00 and P500.00 respectively in full satisfaction of their
acceptance fee. However respondent refused to issue to complainant the
corresponding receipts therefore, despite demands to do so.

In an Older dated July 6, 1998 in Civil Case No. 97-275, the Presiding
Judge of Branch 147 of the Makati City RTC expunged from the record the
testimony of a witness for complainant, who was one of the plaintiffs
therein.’ ^[4] Respondent, as her counsel, filed a ‘Motion to Reconsider and/or Set Aside Order of July 6, 1998.’^[5] The motion was denied by the trial court in an Order dated June 30, 1999.^[6] Thereafter, on August 27, 1999,^[7]
Civil Case No. 97-275 was dismissed for failure to prosecute.
Respondent filed a ‘Motion to Reconsider and/or Set Aside Order of
August 27, 1999.’^[8]

Subsequently, respondent made representations with complainant
that she was going to file a petition for certiorari with the Court of
Appeals, assailing the dismissal of Civil Case No. 97- 275. For the
proposed service, respondent charged complainant the total sum of
P3,900.00 3 which the latter paid.^[9]
After waiting for some time without any word from, respondent,
complainant personally verified with the docket section of the Court of
Appeals whether or not a petition for certiorari was tiled. She was
dismayed to discover that no such.petition had been filed.

Complainant also alleged that respondent took from her the
official receipt and pictures of the torn-down structures which were the
subject of Civil Case No. 50988, issued by the Clerk of Court of Branch
62 of the Makati City MTC? evidencing her deposit of the supersedeas
bond. Respondent obtained the same under the pretext that she needed
them in the motion for the withdrawal of complainant’s deposit.

Complainant further averred that respondent told her to go to the
court to claim the check for the supersedeas bond and have the same
encashed with the Landbank. However, upon verification with the MTC, she
discovered that there was no such check and that she needs to present
the official receipt to withdraw said deposit. She tried to recover the
official receipt from respondent but the latter kept avoiding her.

Thus, complainant filed an action against respondent before the Barangay Office of Barangay Nangka,
Marikina City. Respondent, however, repeatedly failed to appear at the
conciliation proceedings, despite notice of the hearings, prompting the Lupong Tagapayapa, to issue a certification to file action.^[10]
Since then, respondent persistently avoided complainant and failed to
represent her in Civil Case Nos. 50988 and 97-275. According to
complainant, respondent just stopped appearing as her counsel of record
without any justifiable reason. 3 Hence, she prayed that appropriate
sanctions be meted on respondent.

After the filing of the administrative complaint, docketed as CBD Case No. 01-861, an Order dated August 1, 2001^[11]
was issued by the Commission on Bar Discipline requiring respondent to
submit her Answer within fifteen (15) days from receipt tliereof. A copy
of said Order was received by respondent on August 8, 2001. Respondent
failed to file her Answer, which compelled complainant to rile a ‘Motion
to Declare Respondent In Default And To Set Case For Hearing Ex Parte^[12] She furnished respondent copy, of the motion by personal service. The copy was received by one Kins Avance on October 3, 2001.^[13]

Respondent still failed to file her Answer. Thus, the Commission
on Bar Discipline issued an Order dated October 30, 2001 setting the
case for hearing on November 20, 2001. This Order was received by
respondent on November 8, 2001, as reflected in the Registry Return
Receipt thereof.

On the scheduled hearing on November 20, 2001, only the complainant appeared,^[14] In order to abbreviate proceedings, the Commission on Bar Discipline issued an Order^[15]
requiring both parties to submit their respective memoranda within
twenty (20) days from receipt, after which the case shall be deemed
submitted for decision with or without memoranda. Respondent received a
copy of the Order on November 27, 2001, per the Registry Return
Receipt.

Pursuant to the foregoing Order, complainant filed her Position Paper on December 13, 2001.^[16] Again, respondent did not file her memorandum.

On March 14, 2002, Investigating Commissioner Lydia A. Navarro
submitted a Report finding respondent culpable as charged and
recommended that she be suspended from the practice of law for two (2)
years. She found that:

As it is, respondent violated Canon 16 of the Code of
Professional Responsibility for having failed to account to the
complainant the official receipt of the supersedeas bond she got from
complainant to withdrew (sic) the same from the court relative to the ejectment case.

Respondent also violated Canon 18.03 for having failed to file
the [petition for] certiorari before the Court of Appeals as she
promised the complainant and even got litigation expenses relative to
the same.

Likewise, respondent violated Canon 20 when she discontinued
her legal services for complainant without any notice of withdrawal and
even ignored the issuances of the Commission for her to answer the
complaint filed against her.

On August 3 3 2002, the Board of Governors of the Integrated Bar
of the Philippines issued Resolution No. XV-02-408, adopting and
approving the report, and recommendation of the Investigating
Commissioner.

While we agree that indeed respondent is liable, we find the
recommended penalty not commensurate to the degree of her malfeasance.

There can be no question that respondent was grossly remiss in
the performance of her duties as counsel for complainant. The records
show that in engaging the -services of respondent, complainant agreed to
and did pay respondent P12,000.00 as acceptance fee.^[17]
It also appears that on April 20, 1998, a witness for complainant in
Civil Case No. 97-275 testified before the court on direct examination.
For lack of material time, the cross- examination was reset to June 1,
1998. However, the witness failed to attend the hearing on the said
date. Respondent, on the other hand arrived late. Over the vehement
objections of defense counsel, the trial court reset the hearing on July
6, 1998, with the warning that in the event the witness fails to appear
on said date, her direct, examination shall be expunged.. The witness again failed to appear at. the next hearing because she went to Bagnio.
Respondent was likewise not around when the case was called. Thus, on
motion of adverse counsel, the trial court ordered that the testimony of
the witness be stricken off the record.^[18]

These incidentals show respondent’s lackadaisical .manner in
handling her client’s cause. Again, for respondent’s failure to-appear
during the hearings scheduled on August 23 and 27 1999,. Civil Case No.
.97-275 was dismissed for failure to prosecute^[19] Her failure to appear during -those hearings constitutes inexcusable negligence as it proved fatal to the cause of complaint.^[20] She thereafter filed a Motion for Reconsider and/or Set Aside Oder of August 27, 1999 in February 8, 2000 – ^[21]way
beyond the regelementary period for the filling thereof. She proffered
the lame excuse that notices sent to her were returned to the trial
court with the notation: ‘Moved.^[22] However, it was her duty to notify the court of the change in her address, if she had indeed moved.

Even as the aforesaid motion for reconsideration was pending,
she made representations with complainant that she would file a petition
for certiorari with the Court of Appeals assailing the trial court’s
dismissal of Civil Case No. 97-275. For the filing and preparation
thereof she charged and was paid the sum of P3900.00 by complainant’^[23] Respondent, however, did not file the petition without notifying the complainant.

Rule 18.03- of the Code of Professional Responsibility mandates
that a lawyer shall not neglect a legal matter entrusted to him.- Her
negligence in connection therewith shall reader her liable. Verily

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 resposed in him. He must serve the client with
wholeheartedly fidelity, care and devotion. Elsewise stated, he owes
entire devotion to 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
except his lawyer to assert every such remedy of 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 negligence 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.^[24]

Aggravating her gross negligence in the performance of her
duties, respondent abruptly stopped appearing as complainant’s counsel even as proceedings were still pending — with neither a withdrawal nor
an explanation for doing so. This was in gross violation of the
following:

CANON 22. A LAWYER SHAH WITHDRAW HIS , SERVICES ONLY FOR GOOD
CAUSE AND UPON NOTICE APPROPRIATE IN THE CIRCUMSTANCES. (Italics
supplied)

It must be remembered that while the right of the client to terminate the relation is absolute, i.e., with or without cause,^[25] the right of the attorney to withdraw or terminate the relation other than for sufficient cause is considerably restricted.^[26]
Among the fundamental rules of ethics is the principle that an attorney
who undertakes to conduct an action impliedly stipulates to carry it to
its termination.^[27] He is not at liberty to abandon it without reasonable cause.^[28]

The grounds wherein a lawyer may withdraw his services are well-defined,^[29] and the abruptness of respondent’s withdrawal hardly tits into any of
them. Be that as it may, whether or not a lawyer has a valid cause for
withdrawing from a case, he can not just do so and leave the client out
in the cold unprotected.^[30] An-attorney may only retire from a case either by written consent of his client or by permission of the court after due notice and hearing, in which event the lawyer should see to it that the name of. the new counsel is recorded in the case.^[31]

Respondent’s consistent refusal to comply with lawful orders in
the proceedings before the Commission on Bar Discipline, with no
explanation offered to justify them,.not only underscores her litter
lack of respect for authority, but also a defiance for law and” order
which is at the very core of her profession. Such defiance is anathema
to those who seek a career in the administration, of justice because obedience
to the-dictates of the law and justice is demanded of every lawyer. How
else would respondent even endeavor to serve justice and uphold the law
when she disdains to follow even simple directives? The first and
foremost command of the Code of Professional Responsibility could not be
any clearer:

CANNON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LEGAL PROCESSES

The inevitable conclusion: is that respondent gravely abused the
confidence that complainant reposed in her and ‘with palpable’ bad
faith. Her persistent refusal to comply with lawful orders directed at
her without any explanation for doing so s is contumacious conduct which
merits to compassion.

A lawyer has the duty to uphold the integrity and dignity of the legal profession at all times and to faithfully perform her duties to society, to the bar, to the courts and to her clients^[32] We can not tolerate any misconduct that tends to besmirch the fair name of an honorable profession.

All told, respondent has dismally failed to do her duty to her
client and has clearly violated the Code of Professional
Responsibility. Respondent’s actions erode the public perception of the
legal profession, They constitute gross misconduct, and the sanctions
for such malfeasance is provided by Section 27, Rule (38 of the Rules
of Court which states:

SEC. 27. Disbarment and suspension of attorneys by Supreme Court, grounds therefore.
—A member of the bar may be disbarred or suspended from his office-as
attorney by the Supreme Court far any deceit, malpractice or other gross
misconduct in such office, grossly immoral conduct or by reason of his
conviction.of a crime involving moral turpitude, or for any violation of
the oath which he is required to take before the admission to practice,
or for a willful disobedience appearing as attorney for a party without
authority to do so.

The penalty of suspension ‘for a period of two (2) years
recommended by the Board of Governors of the IBP is too light and
inadequate given the prevailing facts of this case. For the deliberate
violation and defiance of not merely one but several Canons of
the Code of Professional Responsibility, coupled with palpable bad faith
and dishonesty in her dealings with complainant, respondent deserves a
graver penalty – that of suspension for a period of five (5) years from
the practice of law.^[33]

WHEREFORE, in view of all the foregoing, respondent ATTY. LUNA B, A VANCE is found GUILTY
of gross misconduct and is hereby SUSPENDED from the practice of law
for a period of five (5) years. She is directed to return to complainant
the amount of P3,900.0G within ten (10) days from notice.

This decision shall take effect immediately. Copies thereof
shall be furnished the Office of the Bar Confidant, to be appended to
respondent’s personal record. The Court Administrator shall also furnish
all lower courts with copies of this Decision.

SO ORDERED”

Copy of the decision was received by respondent on January 7,
2004, as manifested in her January 15, 2004 “Motion to Reconsider
Decision dated December 11, 2003.”

__11__March 2004.

.

 ^[2] Rollo, p.1.

 ^[3] Id., p. 19.

 ^[4] Id., p. 20.

 ^[5] Id., p. 22.

 ^[6] Id., p. 25.

 ^[7] Id., p. 27.

 ^[8] Id., pp. 28-32.

 ^[9] Id., p. 4.

 ^[10] Id., p. 6.

 ^[11] Id., p. 7.

 ^[12] Id., p. 8.

 ^[13] Id.,

 ^[14] Id., p. 11.

 ^[15] Id., p. 12.

 ^[16] Id., pp. 13-18.

 ^[17] Id., p. 19.

 ^[18] Id., p. 25.

 ^[19] Id., p. 27.

 ^[20] See Rizalino Fernandez v. Atty. Reynaldo Novero, Jr., A. C. No. 5394, 2 December 2002.

 ^[21] Rollo, pp. 29-30.

 ^[22] Id., pp. 29-30.

 ^[23] Id., p. 19.

 ^[24] Ramos v. Jacobs, A_C. No. 550’5,27 September 2001.

 ^[25] Recomadia.Telephone Co., Inc. v. Buenviaje, 263 Phil. 162 [1990], citing Aro v. Nanawa, 137 Phil. 745 [1969].

 ^[26] Pineda, EX. Legal and Judicial Ftbics, 1999 ed., p, 300, citing 7. C.J.S. 940.

 ^[27] Id.

 ^[28] Id., citing Stork v. MisheJ, 6 ALR 174.

 ^[29] Rule 22.01. – A lawyer, may withdraw his services many of the following cases:

a)When the client pursues an illegal or immoral course of conduct in connection with the, matter he is handling;

b) When the client insists that the lawyer pursue conduct violative of these canons mid rules;

c) When his inability to work with co-counsel will not promote the best, interest of his client; ;

d) When the mental and physical condition of the Sawyer renders it difficult for him to carry out the employment effectively;

e) When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement;

f) When the lawyer is elected or appointed to public office; and

g) Other similar cases.

 ^[30]Pineda, Legal and Judicial Ethics, supra, p. 300.

 ^[31] Guanzon v. Aragon, 107 Ptril. 315 [1960]; see also Section 26 4 Rule 13S Rules of Court.

 ^[32] Teodolfo Reyes v. Atty. Rolando Javier, A.C. No. 5574,2 Februajry 2002.

 ^[33]Soledad Nuñez v. Atty. Ro,mulo Ricafort, A. C. No. 5054, 29 May 2002.