OCA CIRCULAR NO. 66-2005, May 25, 2005

For the information and guidance of all concerned, quoted
hereuiider is the Decision of the Third Division dated October 7, 2004
in Administrative Case No. 5113, entitled “Dolores Silva Vda. De Fajardo
vs. Atty. Rexie Efren A. Bugaring”, to wit:

“Lawyers must be completely truthful, more so when they plead
their own causes against former clients. In the present case, the lawyer
misrepresented facts in his claim for attorney’s fees; hence, he must
be sanctioned.

The Case

The administrative case before the Court stems from a Complaint^[1]
filed by Dolores Silva vda. de Fajardo, seeking the disbarment of Atty.
Rexie Efren A. Bugaring for untruthful statements in allegedly trying
to fleece her of P3,352,170 in attorney’s fees. The Complaint and
respondent’s Comment^[2] thereon were referred^[3] by the Court to the.Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

IBP Commissioner Rebecca Villanueva-Maala’s Report^[4]
recommending the suspension of respondent from the practice of law for
one year was adopted and approved by the IBP Board of Governors in its
June 21, 2003 Resolution^[5]
No. XV-2003-348 On June 30, 2003 , the Notice of the IBP Resolution 5
and the records of the case — including the Commissioner’s Report – were
forwarded to this Court by Atty. Julio C. Elamparo, director for bar
discipline of the IBP. ^[6]

The Facts

The facts are narrated by the investigating commissioner in her Report as follows:

“Complainant alleged that she had known respondent since 1989
when she, together with her co­ heirs, were trying to sell [the]
properties which they inherited from their predecessors, Jose and
Buenaventura Silva xxx. [They] were encountering disputes with the heirs
of Alfredo Silva Cruz (‘Cruz Famiy’), then represented by- one Atty.
Ricardo Dantes, and with their tenants, over x x x Lots 2434 and 2454
located in Sta. Rosa, Laguna, [which they were trying to sell] to Golden
Bay Realty and Development Corporation.

“Atty. Bugaring was recommended by Atty. Dantes to complainant
to assist her and her co-heirs with the legal aspects of the disputes
they were encountering. Atty. Bugaring and Atty. Dantes were close
associates and they hold and belong to the same law office of Bugaring,
Tugonon and Associates Law Offices. Whenever complainant and her
companion Maria Luisa Tamondong would go to the office of Atty. Bugaring
to see him, they also see Atty. Dantes at the same office. Thinking
that Atty. Bugaring was an honest and honorable man, complainant
accepted the recommendation. At that time, complainant thought that
there was nothing wrong or anomalous in she being represented by Atty.
Bugaring, who belong to the same law office as that of Atty. Dantes,
counsel of the Cruz family with which complainant and her co-heirs were
then having disputes over Lots 2434 and 2454. She did not know that it
was improper and unethical for lawyers of the same firm to handle
conflicting interests of clients.

“Initially, Atty. Bugaring assisted complainant with their
problems with the tenants- of Lots 2434 and 2454. The tenants then had
the preferential right to purchase the said properties they were
occupying xxx. [T]hey [had] verbally expressed their non-interest in
purchasing the same but refused to vacate the premises [and] demanded
that they be given 1/3 of the total land area of the two lots before
they agree to vacate. Atty. Bugaring wrote, on behalf of the complainant
and her co-heirs, the said tenants and the Agrarian Reform Office.
Meanwhile, the dispute of complainant and her co-heirs with the Cruz
family later led to the filing of the case entitled ‘Alicia Cruz et al.,
vs. Dolores Fajardo, et al. 1 with the Regional Trial Court of Binan,
Laguna, docketed as Civil Case No B- 3472 (hereinafter the ‘Mother Case
1). The Cruz family was asserting an alleged right over Lots 2434 and
2454 Attv Bugaring represented the complainant and her co-heirs for
purposes of this case.

“Every time there was a hearing in the ‘Mother Case’ in Laguna,
the driver of complainant would fetch Atty. Bugaring at 5:00 o’clock in
the morning from his residence/office in Quezon City , and would
likewise drive him back after the hearing. Complainant paid Atty.
Bugaring every hearing an appearance fee of P1.000.00, whether hearings
were postponed or not, treated him to lunch and used to send him off
with vegetables, candies and other goodies.

“Complainant had always asked Atty. Bugaring how much [he would]
charge for his professional fees, but Atty. Bugaring would just answer:
‘Huwag na ninyo alalahanin iyon. Para ko na kayong nanay o lola.’ All
along, complainant was swayed to believe that Atty. Bugaring was nice
and courteous.

“Later, the dispute of complainant and her co-heirs with the
Cruz family got worse. The ‘Mother Case’ soon branched out to more and
more cases, about eleven (11) cases in all, which were but the offshoots
of the ‘Mother Case,’ (Civil Case No. 3472). Atty. Bugaring continued
to represent the complaint and her co-heirs in the foregoing cases and
as in the ‘Mother Case, 1 whenever there were hearings, Atty. Bugaring
was fetched back and forth by complainant’s driver x x x, [was paid] an
appearance fee of Pl.OOO.OO per hearing, [was] treated to lunch and sent
x x x off [with] some goodies. In all these cases, complainant had
asked Atty. Bugaring of his professional fees, but the complainant would
get the usual reply of: ‘Huwag na ninyo alalahanin iyon. Para ko na
kayong nanay o lola.” With the rate things were going on then, Atty.
Bugaring all the more earned the trust and respect of the complainant
more than anybody else.

“In November 1992, complainant had a meeting with her co-heirs
and the latter expressed their discontent with the way Atty. Bugaring
was handling the “Mother Case’ and the offshoot cases because the cases
were derailing their intended sale of Lots 2434 and 2454 to Golden Bay
Realty and Development Corporation. Complainant was hounded by questions
regarding her arrangement with Atty. Bugaring to which complainant
could not give any answer because there really was no contract or
agreement between her and Atty. Bugaring, who refused to discuss any
arrangement with complainant. After their meeting, complainant told
Atty. Bugaring of the discontent of her co-heirs, and Atty. Bugaring
told complainant that he can draw a fictitious ‘Contract’ for his
services which complainant can show to her co-heirs. Indeed Atty.
Bugaring drew up two (2) fictitious ‘Contract of Services’ both dated 11
December 1992.- One specifically states that it was for the ‘Mother
Case 1 and the other was for the case of ‘Catalina Roberto, et al. v.
Dolores Fajardo, et al. 1 Each of said fictitious contracts stipulate^] x
x x an acceptance fee of P50 000 00 per appearance fee of P1,000.00 and
upon the termination of the case, an additional attorney’s fee
‘equivalent to 25% of the value of the subject property in litigation.’
When the fictitious contracts were shown to complainant she was assured
by Atty. Bugaring that the contracts were not valid and binding and told
her ‘Ito ho ay para lamang may maipakita kayo sa kanila, pero hindi ito
totoo.’ With that assurance, complainant signed the contract and was
given a copy of the same.

“Around 1992, complainant and her co-heirs entered into separate
compromise agreements with the tenants of Lots 2434 and 2454 and with
the Cruz family. The agreement with the Cruz family was later put into
writing with the execution of a Compromise Agreement dated 7 June 1992,
which was submitted to the court before which the ‘Mother Case’ was
pending. [l]t became the basis of the Judgment dated 22 November 1993 x x
x [and the dismissal of] all the offshoot cases x x x. [On the other
hand,] the Compromise Agreement reached with the tenants of Lots 2434
and [2454] consisted of an agreement totally ceding Lot 2454 to the
tenants as [disturbance [compensation. Complainant and her co-heirs
decided not to reveal these agreements [to Atty. Bugaring] until they
were finalized because they knew that [he] did not want such settlement
for reasons known [only] to him.

“With the settlement of the disputes over Lots 2434 and 2454,
the sale of the remaining property .( Lot 2434) to Golden Bay [R]ealty
and Development Corporation materialized on 2 March 1994 . Complainant
was accompanied by Atty. Bugaring and Maria Luisa Tam[o]ndong to the
office of Golden Bay Realty when the sale was finalized. When
complainant received the proceeds of the sale, they went to see Atty.
Bugaring to settle their account with him. They tendered to Atty.
Bugaring the amount of P100,000.00 which they believed was commensurate
for his services considering [that] the cases ended x x x by compromise
agreement. However, Atty. Bugaring rejected the amount. On said
occasion, Atty. Bugaring requested the companions of complainant to step
out of the room first and said he wanted to talk to complainant alone.
Atty. Bugaring proposed to complainant a deal to the effect that only
P85,000.00 will be paid to him by complainant and he will charge the
estate or the complainant’s co-heirs the amount of P1,200,000.00
[C]omplainant vehemently objected to [this] because the estate or her
co-heirs did not have that amount of money. The co-heirs of complainant
maintained that they would only pay Atty. Bugaring P100.000.00, which
[amount] the latter rejected.

“x x x [C]omplainant did not hear x x x from Atty. Bugaring
[since April 1994]. [However, almost three years later], she learned
that her property in Tandang Sora was already attached by Atty.
Bugaring. Unknown to complainant, Atty. Bugaring had filed the case
entitled ‘Rexie Efren A. Bugaring vs. Dolores Fajardo’ docketed as Civil
Case No Q-96-29422 in the Regional Trial Court of Quezon City , Branch
78, for Sum of Money and Damages with Prayer for Preliminary Attachment
for x x x collection of his legal x x x fees. Atty. Bugaring
specifically prayed for the attachment of complainant’s properties and
other assets to answer for his claim of P3.532,170.00 plus 12% interest
per annum for x x x unpaid attorney’s fees, P1,000,000.00 as moral
damages, P500.000.00 as exemplary damages and such amount equivalent to
25% from the total claim as attorney’s fees plus P2,000.00 per court
attendance as appearance fee plus other proven litigation expenses.

xxx

xxx

xxx

“Atty. Bugaring, by way of comment, avers that from 1991 to May
1994, complainant retained his services as her personal legal consultant
and x x x lawyer in nineteen (19) court cases. Considering that Civil
Case Nos. B-3472 and 3[8]96 before the RTC, Binan, Laguna, involved
various real estate properties, complainant asked Atty. Bugaring to
prepare a written contract for his attorney’s fees, which was thereafter
signed by the complainant x x x. [The] Contract of Services dated 11
December 1992 x x x provide[d] that complainant will pay Atty. Bugaring
an (1) acceptance fee of P50,000.00; (2) appearance fee for every court
appearance of P1,000.00 and (3) attorney’s fee equivalent to 25% of the
value of the properties in litigation. [As to] all the other cases [he]
handled, [Atty. Bugaring charged] a minimum amount of P50,000.00 as
attorney’s fees and P1,000.00 appearance fee [for] every court
attendance. Under these conditions, considering the complexities of the
cases, Atty. Bugaring laboriously and painstakingly represented the
rights and interest of the complainant, and thereby successfully
terminated all cases, except Civil Cases Nos. B-3971 and 3[8]96, which
were still under litigation.

“Due to the failure and adamant refusal of complainant to settle
and pay Atty. Bugaring x x x his accumulated professional fees, he was
constrained to make verbal, and finally, written demands on 30 April
1994 and 6 May 1994 . Notwithstanding the receipts of the demand
letters, which explicitly indicated to her the computation of the amount
of professional fees demanded, complainant simply remained silent about
the matter, thereby signifying her adamant refusal to settle and pay
her legitimately contracted obligations to Atty. Bugaring. . With no
other extra-judicial recourse, and after Atty. Bugaring was able to save
an amount for payment of filing fees, attachment bond and other initial
expenses (P100,000.00 more or less) for a collection case on the
matter, x x x Atty. Bugaring instituted an action for sum of money with
damages against complainant before RTC Quezon City, Branch 78, docketed
as Civil Case No. Q-96- 29442 [on 11 November 1996 ]. After receiving
complainant’s Answer to the Complaint, the trial court set the case for
[p]re-trial conference on 3 June 1997 . However, due to the failure of
complainant and her counsel to appear, the court declared complainant in
default and Atty Bugaring was allowed to present evidence ex-parte x x x
on 6 June 1997. On 15 October 1997 , the court rendered judgment in
favor of Atty. Bugaring As no appeal was undertaken by complainant,
Atty. Bugarinq on 14 July 1998 filed his Motion for Issuance of Writ of
Execution thereto which was granted by the court on 28 September 1998 .
When the Writ of Execution was issued on 24 December 1998 , complainant
filed [a] Petition for Certiorari with Temporary Restraining Injunction
and/or Temporary Restraining Order with the Court of Appeals docketed as
CA G.R. SP No. 49866, questioning the trial court’s orders dated 3 and
13 February 1998 , as well as the resolution dated 28 September 1998 .
The Court of Appeals, finding no merit in the petition, dismissed the
same and affirmed the trial court’s Resolution on 4 February 1999 .
Complainant, finding the adverse decision of the Court of Appeals, filed
a Motion for Reconsideration on 26 April 1999 . Complainant also filed a
Motion dated 15 July 1999 asking for the issuance of a Cease, Desist
and Refrain Order against the [p]ublic [a]uction sale [scheduled] on 30
July 1999 [by] the deputy sheriff of the trial court. Acting on
complainant’s motion, the Court of Appeals issued a Temporary
Restraining Order dated 29 July 1999 . [H]owever, on 30 September 1999 ,
the appellate court finally issued its resolution denying complainant’s
Motion for Reconsideration.”^[7]

Evaluation and Recommendation of the IBP

Commissioner Maala found respondent guilty of
gross misconduct for making untruthful statements and for misleading the
trial courts on several occasions in Civil Case No. Q-96-29422 and
Civil Case No. B-3896. Respondent allegedly lied to and misled these
courts in the following instances:

1. When he included in his claim for attorney’s fees in Civil Case
   Q-96-29422 25 percent of the value of two lots (at P3,670,000 and
   P750,000), which were not among the properties in litigation in the
   “Mother Case” and had already been sold in 1987 and 1968, respectively

2. When he concealed the fact that Lot 2454 had been given to complainant’s tenants as disturbance compensation
3. When he failed to disclose that the Contract of Service for the
   “Mother Case” was executed six months after it had already been settled
   by a Compromise Agreement on June 7, 1992

4. When he led the RTC of San Pedro Laguna (Branch 93), to believe
   in his Petition for Recording and Enforcement of Attorney’s Lien in
   Civil Case No. B-3896 that no other action or claim was pending except
   his case for collection

5. When he made two inconsistent statements regarding the date when
   his professional services had actually been engaged by complainant

Commissioner Maala also found that respondent had not completely been honest with the Commission. According to his Comment,^[8]he
decided to forego his professional fees amounting to P2 million in
Civil Case No. B-3896; actually, those fees were included in his
collection case. It was also in the said case that he filed a Petition
for the Recording and Enforcement of Attorney’s Lien.

Commissioner Maala held that respondent had violated his sworn
duty to tell no falsehood in court. Hence, she recommended his
suspension from the practice of law for one year.

The Court’s Ruling

We agree with the findings and recommendation of IBP.

Respondent’s Administrative Liability

Canon 10 of the Code of Professional Responsibility provides
that a lawyer owes candor, fairness and good faith to the courts.
Accordingly, Rule 10.01 requires a member of the bar “not [to tell] any
falsehood, nor consent to the doing of any in court, nor shall he
mislead, or allow the court to be misled by any artifice.”

Moreover, Section 20(d) of Rule 138 of the Rules of Court
provides that a lawyer must employ “such means only as are consistent
with truth and honor, and never seek to mislead the judge or any
judicial officer by any artifice or false statement of fact or law.”

In his September 28, 2003 Comment/Opposition^[9]
to the IBP Commissioner’s Report and Recommendation, respondent points
out alleged distortions in the findings of fact. Upon a review of the
records, however, the Court finds the investigating commissioner’s
conclusions to be in order.

Falsehood

Indeed, respondent has not completely been honest when he
claimed that the entire estate of Adela Silva was the subject of
litigation in the case for partition. First, it is clear that Lots 2434 and 2454 were the only properties mentioned in the Complaint^[10] for partition, which we quote:

“x x x. The late Adela Silva died intestate, single and
without surviving heirs except the herein plaintiffs and defendants. She
died x x x leaving as her estate the two (2) parcels of land located at
Bgy. Platero, Binan, Laguna. The first known as Lot 2434 of the Binan
Estate is covered by TCT No. RT-1702 (N.A.) while the second known as
Lot 2454 of the same Binan Estate is embraced by TCT No. Rt-1703 (N.A.)
issued by the Register of Deeds (Calamba branch) of Laguna;”^[11]

Second, the Compromise Agreement and the Judgment in
the “Mother Case” for partition did not indicate that the subject of
partition was the late Adela Silva’s estate, but they did refer to the
other properties belonging to her, including the 73,404 square-meter
agricultural land in Puting Kahoy, Silang, Cavite ; and the 150
square-meter residential lot in Sampaloc, Manila . What appears from the
Compromise Agreement and the Judgment is that these properties were
enumerated merely to show that Lots 2434 and 2454 were part of the said
estate. That only these lots were referred to is plain from the terms
and conditions of the Judgment:

“1. That the parties herein hereby agree to refrain from
discussing whether their claims and counter claims over Lot 2434 (TCT
12702) and Lot 2454 (TCT 1703) are meritorious or not, and further agree
to put an end to all their litigations x x x. Thus to this effect, all
their claims are hereby waived and abandoned subject to the following
terms and conditions:

1. That the defendant Dolores Silva Fajardo hereby agree[s] to
   pay the plaintiffs’ representative Alicia Cruz, the sum of four hundred
   thousand (P400.000.00) pesos Philippine currency upon signing of this
   Agreement.

2. That the defendant Dolores Silva Fajardo be authorized to
   consummate the sale of Lot No. 2434, and Lot 2454, covered by TCT No.
   1702 and 1703, respectively of the Registry of Deeds of Laguna, Calamba
   branch, and to execute all the necessary documents in favor of the
   Vendee Golden Bay Realty and Development Corporation.”^[12]

Third, it was adequately established that the Cavite
and the Sampaloc lots mentioned in the Compromise Agreement and the
Judgment had already been sold long before the advent of Civil Case
B-3472. There is no reason to doubt that respondent, as complainant’s
counsel, knew this fact.

Lastly, we note that the failure of respondent to
include all the properties of the estate in his claim for attorney’s
fees runs counter ” to his other claim that complainant’s entire estate was in litigation. If it were so, should he not then have also asked for 25 percent of the value of all such properties enumerated in the Judgment?

As regards his professional fees, we stress that the proper
time to deal with this delicate issue is upon the commencement of the
lawyer-client relationship. In this case, respondent should have
determined and entered into an agreement regarding his fees in 1991 at
the latest, when he was first retained by complainant as her counsel in
the partition case. Such prudence would have spared the Court this
controversy over a lawyer’s compensation, a suit that should be avoided
except to prevent imposition, injustice or fraud.^[13]

To be sure, a lawyer is entitled to the protection of the
courts against any attempt on the part of a client to escape payment of
legitimate attorney’s fees.^[14]
However, such protection must not be sought at the expense of truth.
Complete candor or honesty is expected from lawyers, particularly when
they appear and plead before the courts for their own causes against
former clients, as in this case. With his armada of legal knowledge and
skills, respondent clearly enjoyed the upper hand. More important, he
had the sole opportunity to present evidence in the collection case
after complainant was declared in default, and after he was allowed to
present his evidence ex parte.

Respondent is thus reminded that he is first and foremost an
officer of the court. His bounden duty is to assist it in rendering
justice to all.^[15] Lest he has forgotten, lawyers must always be disciples of truth.^[16]
It is highly reprehensible when they themselves make a travesty of the
truth and mangle the ends of justice. Such behavior runs counter to the
standards of honesty and fair dealing expected from court officers.

Equally without merit are respondent’s other arguments that
the real issue herein is his claim for attorney’s fees, whose merit has
already been adjudicated in court, as well as of his allegation that
complainant has engaged in forum shopping to delay the execution ot the
judgment against her for attorney’s fees.

To start with, this proceeding is not about the merits of
respondent’s fees, but about his conduct as an officer of the court. It
has been emphasized in a number of cases that disbarment proceedings
belong to a class of their own, distinct from that of a civil or a
criminal action.^[17] In Re Almacen^[18] explained this basic principle:

“x x x [Disciplinary proceedings x x x are sui generic. Neither purely civil nor purely criminal, this proceeding is not – and does not involve – a trial of an action or a suit, but is rather an investigation by the Court into the conduct of its officers.
Not being intended to inflict punishment, it is in no sense a criminal
prosecution. Accordingly, there is neither a plaintiff nor a prosecutor
therein. It may be initiated by the Court motu proprio. Public
interest is its primary objective, and the real question for
determination is whether or not the attorney is still a fit person to be
allowed the privileges as such. Hence, in the exercise of its
disciplinary powers, the Court merely calls upon a member of the Bar to
account for his actuations as an officer of the Court with the end in
view of preserving the purity of the legal profession and the proper and
honest administration of justice by purging the profession of members
who by their misconduct have proved themselves no longer worthy to be
entrusted with the duties and responsibilities pertaining to the office
of an attorney, x x x.”^[19] (ltalics supplied)

Clearly then, this disbarment case may proceed independently
of the civil action for collection, without running afoul of the
prohibition against forum shopping. Moreover, the elements of forum
shopping 20 are conspicuously absent. Between these two .cases, there is
no identity of parties, as the complainant is in no sense a party to
the administrative proceeding. Obviously, there is neither identity of
rights asserted nor reliefs prayed for. Lastly, the judgment in the
disbarment proceeding would not bar the collection case.

WHEREFORE, Respondent Rexie Efren A. Bugaring is found LIABLE for gross misconduct and is hereby SUSPENDED from the practice of law for a period of ONE (1) YEAR, effective upon the finality of this Decision. He is WARNED that a repitition of the same or of a similar misconduct will be dealt with more than severly.

Copy of the Decision was received by respondent on October 25
2004 as shown by Registry Return Receipt No. 6005. Respondent’s Motion
fo Reconsideration was denied with finality in the Resolution of the
Court dated December 15 2004 which was sent to respondent and returned
unserved to the Court on February 3, 2005 . The Court in its resolution
dated March 7 2005 deemed served on said respondent, the resolution of
D.ecember 15, 2004.

__25__ May 2005.

	ZENAIDA N. ELEPAÑO
	Acting Court Administrator

---

^[1] Records, Vol. I, pp. 1-12. The Complaint was dated July 28, 1999 .

^[2] Id., pp. 32-56. The Comment was dated October 28, 1999 .

^[3] See Resolution dated November 25, 1999 ; records, Vol. I, p. 116.

^[4] Records, Vol. V, pp. 3-13. The Comment is dated March 10, 2003.

^[5] Signed by Atty. Jaime M Vibar, national secretary of the IBP; records, Vol. II, p. 2.

^[6] See
Letter; records, Vol. V, p. 1. The Notice of Resolution and the
accompanying documents were noted during the August 27, 2003 session of
the Third Division of this Court.

^[7] IBP Report and Recommendation, pp. 1-9; records, Vol. V, pp. 3-11.

^[8] Comment dated October 28, 1999 , p. 20; records, Vol. I, p. 51 .

^[9] This was favorably admitted by the Court in its Resolution of April 5,2004 . See records, Vol. V, p,62.

^[10] Annex ” L” of complainant’s Affidavit before the IBP Commission on Bar Discipline; records, Vol. IV, pp. 141-143.

^[11] The complaint is Civil Case B-3472, pp. 1-2; records, Vol. IV, pp. 141-142.

^[12] Judgment in CivilCase B-3472; pp. 3-4; records, Vol. I, pp. 74-75.

^[13] Rule 20.04 of the Code of Professional Responsibility.

^[14] Albanov. Coloma, 128 Phil. 433, 442, October 11, 1967

^[15] Libit v. Oliva, 237 SCRA 375, 378, October 7, 1994 .

^[16] Benguet Electric Cooperative v. Flores, 350 Phil. 889, 904, March 12, 1998 .

^[17] Gatchaian Promotions Talent Pool, Inc. v. Naldoza, 374 Phil. 1, 9, September 29, 1999 ; In Re Wenceslao Lmtreta, 148 SCRA 382, 442, March 12, 1987 ; InReAlmacen.31 SCRA 562, February 18, 1970.

^[18] Supra.

^[19] Id. , pp. 600-601, per Castro, J.

^[20] For forum
shopping to exist, the following elements must be present: (a) identity
of parties, or at least such parties as would represent the same
interest in both actions; (b) identity of rights asserted and reliefs
prayed for, the reliefs being founded on the same facts; and (c)
identity of the two preceding particulars, such that any judgment
rendered in the other action will, regardless of which party is
successful, amount to res judicata in the action under consideration. Government Service Insurance System v. Bengson Commercial Buildings, Inc., 426 Phil. 111, 125, January 31, 2002 .