OCA CIRCULAR NO. 59-2003, May 19, 2003

For the information and guidance of all concerned, quoted hereimder
is the decision of the Court’s First Division in Administrative Case No.
5811 entitled “Maritess Garcia vs. Atty. Iluminado M. Manuel” dated
January 20, 2003, to wit:

“For our resolution is the .administrative complaint for disbarment
filed by complainant Maritess Garcia against respondent Atty. Iluminado
M. Manuel for gross misconduct for ineffectively handling her case and
failing to return to her
the money she gave ton.

x x x x

Sometime in February 1999, Maritess Garcia, divorced from husband
Oscar Fauni, approached respondent- for legal advice concerning child
support and her condominium unit in San Juan, Metro Manila, which-her
erstwhile husband refused, to vacate. Respondent agreed to handle her
case at a fee of P70,000. Finding respondent’s fees reasonable,
complainant entrusted to respondent all pertinent papers for Ms study.
An advance fee of P10,000 was then asked by respondent from complainant.

On 17 February 1999, a retainer agreement was entered by
complainant with respondent, calling for the payment of (1) P35,000
payable in weekly installments of preferably P5,000 but not less than
P2,000; (2) P35.000 to come from the proceeds of the sale of her
condominium unit or from any amount that miaht be recovered from Mr.
Fauni, except that pertaining to child support; (3) a contingent fee of
5% of any amount that, might be recovered from Mr. Faum except, that for
child support. Incidental expenses, such as iilmg fees and postage
fees, were also made chargeable to the account, of the complainant.’^[1] On the same occasion, complainant gave respondent the advance fee of P10,000.^[2] Thereafter, respondent informed complainant that, he needed P10.000 for the filing fees.

On 4 March 1999, complainant gave respondent P10,000 for the filing fees in the ejectment, case.^[3]
She, however, asked respondent as to why the fees cost so much.
Respondent, replied thai filing fees are based on a certain percentage
of the price of the property and the amount of child support, prayed
for. A demand letter to vacate, the premises of the condominium dated 4
March 1999 was then prepared by respondent and mailed to Mr.’Faiini on 8
March 1999.^[4]

In the interim, complainant made several follow-ups with respondent
inquiring particularly as to whether the ejectment. case had already
been filed. Through a telephone conversation with respondent on 7 April
1999, complainant found out that the ejectment case had not been filed
yet by respondent. Agitated by the information, complainant immediately
went to respondent’s residence, An altercation between respondent and
complainant took place. After serious exchange of words, respondent
returned to complainant all of her documents. No amount of money was,
however, retained by respondent to complainant despite the tetter’s
demand for its return.

X X X X

A lawyer may be disciplined for any conduct, in, his professional
or private capacity, that renders him unfit to continue to be an officer
of the court. Canon 1 of the Code of Professional Responsibility
commands all lawyers to uphold at all time the dignity and integrity of
the legal profession. Specifically, Rule 1.01 thereof provides:

Rule 1.01—A lawyer shall not engage in unlawful, dishonest and immoral or deceitful conduct.

There is no need to stretch one’s imagination to arrive at an
inevitable conclusion that respondent committed dishonesty and abused
the confidence reposed in him by the complainant. Respondent Manuel
fully knew that the jurisdictional requirement of demand to vacate had
to be complied with before an ejectment case could be filed,^[8] and yet he asked complainant to raise the filing fee of P10,000 as early as 17 February 1999.^[9]
He likewise cannot take refuge behind his claim, that he did not file
the ejectment case because he had not yet received the registry return
card. The records reveal that despite Atty. Manuel’s receipt of the
registry return card on 24 March 1999^[10] he still did not file an ejectment case.

Finally, if indeed respondent was in good faith in dealing with
complainant, he should have informed or advised the complainant of the
status of her case or, at the least, responded to her inquiries. Canon
18, Rule 18.04 provides:

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

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 development of the case and should not be left, in the
dark as to the mode and manner in wliich his interests are being
defended. It is only thus that the trust and faith in the counsel may
remain unimpaired.^[11]

Respondent also failed to comply with the norms embodied, in Canon 16 of the Code of Professional Responsibility, to wit:

Canon 16. A lawyer shall hold in trust all moneys and properties of his client that may come into his possession.

Rule 16.01 — A lawyer shall account for all money and property collected or received for or from the client.

In the instant case, respondent received the amount of P10,000
specifically for filing fees in the ejectment case. Thus, he was under
the obligation to. render an accounting of the same. The highly
fiduciary and confidential relation of attorney and client requires that
the lawyer should promptly account for all the funds received from, or
held by him for, the client.^[12]

Moreover a lawyer who obtains possession of the funds and
properties of Ins client, in the course of Ms professional employment
shall deliver tlie same to his client (a) when they become due or (b)
upon demand.^[13] In the
instant case, respondent failed to account the return of P10,000 for the
filing, fees despite complainant’s repealed demands.

We find untenable respondent’s claim that, since complainant was
already in arrears with his fees, it was proper for him to apply the
filing fees to his attorney’s fees/ It has been held that an attorney’s
lien is not an excuse for a lawyer’s non-rendition of accounting.^[14]
And while a lawyer is allowed to apply so much of the client’s funds as
may be necessary to satisfy his lawful fees and disbursements, the
lawyer is however under the obligation to promptly thereafter notify his
client.^[15] Nothing on record
supports respondent’s claim, that complainant was adequately notified
as to the application of the P10.000 (for the.filing fees) to her
arrears.

Besides, the receipt dated 4 March 1999 states that:

In the event that whatever is left of the P10,000 after the
filing of the ejectment case is insufficient for the filing fee in the
other collection case, tlie said balance shall be applied to the
installment due for the retainer agreement.

A close reading of the receipt reveals that .while it authorizes
respondent to apply whatever would be left of the P10,000 (intended for
tlie filing fees) to the retainer fee, it clearly presupposes that the
filing fee in tlie ejectment cases must have been paid already.

We find unwarranted respondent’s claim that complainant impliedry
terminated his services when she asked for the return of all her
documents. Complainant was upset by respondent’s non-filing of the
ejectment case. She honestly believed that respondent would already file
the ejectment case after giving him the P10,000 of tlie filing fees It
was thus a spontaneous and natural reaction for her to confront
respondent of his inaction. Her belligerence arose from her zealoiraess
to have her former husband ejected from her condominium unit. Assuming
that complainant terminated respondent’s services. respondent, would
not, nonetheless, be relieved of his duty to render the necessary
accounting for all the monies received by his from complainant.

Respondent’s action erode the public perception of the legal
profession. They constitute misconduct for which he may be suspended,
following Section 27, Rule 138 of the Rules of Court, which provides:

Section 27. Disbarment or 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 for 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.

Complainant asks that respondent be disbarred. However, we find
that suspension from the practice of law is sufficient to discipline
respondent. The supreme penalty of disbarment is meted out only in clear
cases of misconduct that seriously affect, the standing and character
of the lawyer as an officer of the court and member of the bar. ^[17]
While we will not hesitate to remove an erring attorney from the
esteemed brotherhood of lawyers, where tht evidence calls for it, we
will also not disbar him where a lesser penalty will suffice to
accomplish the desired end.^[18]
In this case, we find suspension to be sufficient sanction against
respondent. Suspension, we may add, is not primarily intended as
punishment, but as a means to protect the public and the legal,
profession.^[19]

WHEREFORE, respondent Atty. Iluminado M. Manuel is found GUILTY of
gross misconduct and is SUSPENDED from the practice of law for a period
of six (6) months, effective immediately, with a warning that a
repetition of the same or similar act will be dealt with more severely.
Further, respondent k ordered to render, within thirty (30) days from
notice of this’ Resolution, an accounting of all monies received by him
from complainant.

X X X X”

Copy of this Resolution was received by respondent on February 4,
2003. His Motion for Reconsideration of the said resolution was denied
with finality on

March 19, 2003

^[2] Exhibit “C-1,” Rollo, 5.

^[3] Exhibit “C”, “Rollo, 5.

^[4] Exhibit “1-B”, Rollo, 15.

^[5] TSN, 24, April 2000, 12.

^[6] TSN, 28 February 2000, 9.

^[7]  TSN, 24 April 2000, 38.

^[8]  Tolentino v. Mangapite, 124 SCRa 741, 745 (1983).

^[12] In re Bamobenger, 49 Phil, 952; 964 (1924)

^[13] Rule 16.03. Canon 16, code of Professional Responsibility.

^[14] Daroy v. Legaspi, 65 SCRA 304, 312 (1975)

^[15] Cannon 16, 16.03, Code of Professional Responsibility

Rule 16.03— A lawyer deliver the funds and property of his client
when due or upon demend. However, he shall have a lien over the funds
and may apply so much thereof as may be necessary to satisfy his lawful
fee and disbursement, giving notice promptly therefore to his client.

^[17] Tapucar v. Tapucar, 293 SCRA 331, 339-340 (1998)

^[18]Saburdino v. Madrono, A. C. No. 4497, September 26, 2001

^[19] Magat v. Santiago 07 SCRA 1,3 (1980