OCA CIRCULAR NO. 16-2004, February 03, 2004

For the information and guidance of all concerned, quoted
hereunder is the Decision of the Court En Bane dated September 3, 2003
in Administrative Case No. 6084, entitled “Felicitas Berbano vs. Atty.
Wenceslao C. Barcelona”, to wit:

“A lawyer shall at all times uphold the integrity and dignity of the legal profession. The trust and confidence necessarily reposed
by clients require in the attorney a high standard and appreciation of
his duty to his clients, his profession, the courts and the public. The
bar should maintain a high standard of legal proficiency as well as of
honesty and fair dealing. Generally speaking, a lawyer can do honor to
the legal profession by faithfully performing his duties to society, to
the bar, to the courts and to his clients. To this end, nothing should
be done by any member of the legal fraternity which might tend to lessen
in any degree the confidence of the public in the fidelity, honesty and
integrity of the profession. ^[1]

In a sworn Affidavit-Complaint dated March 11, 1999 filed before
the Integrated Bar of the Philippines (IBP), complainant Felicitas
Berbano seeks the disbarment of Atty. Wenceslao Barcelona for
Malpractice and Gross Misconduct Unbecoming a Lawyer, Dereliction of
Duty and Unjust EnrichmenT^[2] Complainant alleges:

1. I amone oftheheirs of Rufino Esteban Hilapo, owner of a
   244-hectare lot situated at Alabang, Muntinlupa, which property is being
   claimed by Filinvest Dev. Corp. in a case pending with the Commission
   on the Settlement of Land Problems (COSLAP), Quezon City. The heirs of
   REH has appointed Mr. PORFIRIO DAEN as their attorney-in-fact giving him
   authority to prosecute the case for and in their behalf.

2. On January 26, 1999, Mr. Profirio Daen was arrested by a
   Muntinlupa police on the strength of an expired warrant of arrest-it was
   issued on February 1990 and subsequently detained at the Muntinlupa
   City Jail, Tunasan, Muntinlupa City, until his release on February 18,
   1999.

3. Since Mr. Daen needed the assistance of a lawyer for his
   release from the incarceration, we tried to look for one. We told our
   friend Naty Sibuya, about the predicament of Mr. Daen, who recommended
   Atty. Wenceslao Barcelona to us, his wife being Naty’s cousin/relative.

4. So on January 26, 1999, at about 10:30 in the evening, Atty.
   Wenceslao Barcelona arrived at the Muntinlupa City Jail and coffered
   with Mr. Daen. We learned later that Mr. Daen has enganged the services
   of Atty. Barcelona for the latter to secure the release of the former
   from prison. After their conservation, Atty. Barcelona told us that if
   you could produce the amount of FIFTY THOUSAND (P50,000.00) Pesos he
   will cause the release of Mr. Daen from prison the following day. I told
   him that it was already late in the evening and I cannot any more
   produce the amount. So, what i did was ask my relatives who were with me
   at the time to contribute and we were able to raise FIFTEEN THOUSAND
   SEVEN-HUNDRED (15,700) Pesos. In the meantime, Atty. Barcelona proceeded
   to Chowking Restaurant which is just located across the city jail where
   he waited for us there.

5. At he aforesaid restaurant, I handed to Atty. Barcelona the
   amount who accepted the same. He reiterated his promise to secure the
   release of Mr. Daen the following day. Before he left, he asked us to
   meet him at Max’s Restaurant at around 12:00 noon at EDSA Crossing. He
   thereafter left because according to him, he would go and see somebody,
   (a justice) from the Supreme Court who could help the release of Mr.
   Daen. It was already about 12:30 in the early morning of January 27,
   1999.

6. As agreed upon, I together with Romana Soriano, proceeded to
   Max’ Restaurant We arrived at around 12:00 noon. Atty. Barcelona came at
   around 1:00 P.M. He even told us that he just came from the Supreme
   Court where he “fixed” the case of Mr. Daen. It surprised me though,
   that he did not have with him any single document at the time. Then, I
   handed him a “pay-to-cash” check for TWENTY-FOUR THOUSAND (P24,000.00)
   Pesos, dated January 29, 1999. We told him that the check may be
   encashed on the said date. Although, he said that the Justices of the
   Supreme Court do not accept check he nonetheless, accepted it saying
   that he will have the same rediscounted. We thereafter left.

7. The following morning, January 28, 1999, at around 7:00 o’
   clock Atty. Barcelona called me up by phone to sat that since he was
   unable to have the check rediscounted, I must produce the amount of
   P5,000 and give the amount to him at Max’ Restaurant at EDSA Crossing at
   around 12:000 noon. We were unable to meet him because we arrived at
   about 1:00 o’ clock already. Nonetheless, we waited for him until 3:00
   in the afternoon. Thereafter, I called him through his pager saying that
   we were waiting for him at Max’. I also called up our house and inquire
   (sic) if a lawyer has called up. I was able to talk to my husband who
   informed me that a certain Atty. Barcelona called up. That Atty.
   Barcelona wanted to meet at McDonald’s at Barangka Drive, Madaluyong. So
   we rushed to the place but he was not there. I again paged him
   informing that we were already at McDonald’s and to return my call
   through my cellphone. After a while, his wife called up to inform us to
   proceed to their house which was just five houses away from McDonald’s.
   When we reached their house, we were met by his daughter who called her
   mother. We were ushered insider the house and after introducing
   ourselves, we gave not only P5,000.00, but TEN THOUSAND (P10,000.00)
   Pesos in cash to his wife in the presence of his daughter. Then we went
   to Putatan. Muntinlupa, hoping that he might be there.

8. We arrived at Putatan, Muntinlupa at around 4:30 in the
   afternoon and there we saw Atty. Barcelona. We informed him that we left
   that the P10,000.00 with his wife in their house. Since Atty. Barcelona
   informed us that he could not secure the release of Mr. Daen because
   the check had not been encashed, Mr. Gil Daen, a nephew of Porfilo Daen,
   gave him FIFTEEN THOUSAND (P15,000.00) Pesos in cash. I also gave him
   additional P1,000.00 for his gasoline expenses.

9. The next time that we saw Atty. Barcelona was on February 3,
   1999, Wednesday at around 6:00 in the evening at Putatan, Muntinlupa. He
   informed us that he just came from the city jail where he had a
   conservation with Mr. Daen. He told us that the he is going to release
   Mr. Daen from prison tomorrow, February 4, 1999. However, in the morning
   of February 4, we learned from the wife of Atty. Barcelona when she
   returned may call that her husband lad left for Mindanao early that
   morning on board a private plane owned by Chiongbian allegedly to attend
   a peace talk with the Muslims.

10. After more than a week, I went to Putatan, Muntinlupa, because
    I was informed by the son of Mr. Daen that he saw Atty. Barcelona
    there. When I saw him about his undertaking to release Mr. Daen from
    prison, but he only advised us not to worry and promised (again) that he
    will return the entire amount of P64,000.00 more or less, on Thursday,
    February 18, 1999. But I never saw him again since then. I have
    repeatedly paged him to return my call but he never returned any of my
    calls.^[3]

In an Order dated April 15, 1999, Investigating Commissioner
Virgilio A. Bautista of the Commission on Bar Discipline of the IBP,
required respondent to submit his answer to the complaint, with a
warning that he will be considered in default and the case will be heard
ex parte, if he fails to do so.^[4] Despite due notice, ^[5] respondent failed to file his answer. Thus, complainant filed a motion to declare respondent in default,^[6]
resolution of which was held in abeyance by the Investigating
Commissioner who required the parties to appear for hearing before the
Commission on August 13, 1999.^[7] On said date, respondent again failed to appear despite due receipt of notice.^[8]
Commissioner Bautista was thus constrained to consider respondent in
default and complainant was allowed to present her evidence ex parte. Complainant testified and affirmed under oath the truthfulness and veracity of her Affidavit-Complaint.^[10] Complainant also manifested that she will present the check in the amount of P24,000.00!° at the next date of hearing.

Further hearings were set by the Commissioner, on October 1, 1999,
November 19, 1999, October 12, 2001, December 14, 2001 and June 28,
2002, but both parties failed to appear on said dates despite due
notice.^[11]

Commissioner Bautista submitted his Final Report and
Recommendation on December 23, 2002 finding respondent guilty of
malpractice and serious breach of the Code of Professional
Responsibility and recommending that respondent be disbarred and ordered
to return to complainant the amount of P64,000.00. The IBP Board of
Governors adopted Commissioner Bautista’s findings but reduced the
penalty to suspension from the practice of law for six years.

The Court disagrees with the 7BP Board of Governors in reducing
the penalty and upholds the findings and recommendation of Commissioner
Bautista. Under the facts established by complainant, respondent should
not only be suspended, but disbarred from practice.

The object of a disbarment proceeding is not so much to punish the
individual attorney himself, as to safeguard the administration of
justice by protecting the court and the public from the misconduct of
officers of the court, and to remove from the profession of law persons
whose disregard for their oath of office have proved them unfit to
continue discharging the trust reposed in them as members of the bar.^[12]

In In re Almacen, the Court expounded on the nature of disbarment proceedings, viz.:

… Disciplinary proceedings against lawyers are sui generis.
Neither purely civil nor purely criminal, they do not involve a trial
of an action or a suit, but are rather investigations by the Court into
the conduct of one of its , officers. Not being intended to inflict
punishment, [they are] in no sense a criminal prosecution. Accordingly,
there is neither a plaintiff nor a prosecutor therein. [They] may be
initiated by the Court motu proprio. Public interest is [their]
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 provefn] themselves no longer worthy to be
entrusted with the duties and responsibilities pertaining to the office
of an attorney….^[13]

As in the Ricafort case,^[14]
herein respondent chose to forget that by swearing the lawyer’s oath,
he became a guardian of truth and the rule of law, and an indispensable
instrument in the fair and impartial administration of justice – a vital
function of democracy a failure of which is disastrous to society.^[15]
In disbarment proceedings, the burden of proof rests upon the
complainant, and for the court to exercise its disciplinary powers, the
case against the respondent must be established by clear, convincing and
satisfactory proof.^[16]
Considering the serious consequence of the disbarment or suspension of a
member of the Bar, this Court has consistently held that clear
preponderant evidence is necessary to justify the imposition of the
administrative penalty.^[17]

Complainant’s evidence consists solely of her Affidavit- Complaint
and testimony before the Commission attesting to the truth of the
allegations laid down in her affidavit. Commissioner Bautista and the
IBP Board of Governors found her testimony together with her affidavit
sufficient to support the finding that respondent committed the acts
complained of The matter of assigning values to the testimony of
witnesses is best done by the investigating body (which in this case is
the Investigating Commissioner) because unlike appellate courts, it can
weigh such testimony in light of the demeanor, conduct and attitude of
the witnesses at the trial.^[18] Witnesses are weighed not numbered, and the testimony of a single witness may suffice if trustworthy and reliable.^[19]

The non-presentation of the check given to respondent does not affect
complainant’s case as it will merely serve to corroborate

her testimony and there is no law which requires that the
testimony of a single witness needs corroboration except where the law
expressly mandates such corroboration^[20] which is not so required in administrative cases.

The act of respondent in not filing his answer and. ignoring the
hearings set by the Investigating Commission, despite due notice,
emphasized his contempt for legal proceedings. Thus, the Court finds no
compelling reason to overturn the Investigating Commissioner’s judgment.

Respondent is guilty of culpable violations of several Canons of the Code of Responsibility, to wit:

CANON 1 – A lawyer shall uphold the constitution, obey the laws
of the land and promote respect for law and for legal processes.

CANON 7 – A lawyer shall at all times upholds the integrity and
dignity of the legal profession, and support the activities of the
integrated bar.

CANON 11 – A lawyer shall observe and maintain the respect due
to the courts and to judicial officers and should insist on sir ; ar
conduct by others.

CANON 16 – A lawyer shall hold in trust all moneys and properties of his claim that may come into his possession.

Rule 16.01 – A lawyer shall account for all money or property collected or receive for or from the client.

The Code exacts from lawyers not only a firm respect for law,
legal processes and the courts but also mandates the utmost degree of
fidelity and good faith in dealing with clients and the moneys entrusted
to them pursuant to thei iduciary relationship. Instead of promoting
respect for law and the legal processes, respondent callously demeaned
the legal profession by taking money from a client under the pretext of
having connections with a Member of this Court

The Court has taken ihtej consideration the penalties imposed in other administrative cases involving similar offenses, e.g.:

In Judge Angeles vs. Atty Uy, Jr., ^[21]
Ihe respondent was suspended from the practice of law for one month for
failing to promptly report a&& remit the amount of P16,500.00
he received on behalf of his client.

In Gonato vs. Atty. Addza, ^[22]
the respondent was suspended from the practice of law for six months
for charging his clients the amount of P15,000.00 as filing fees when in
fact no such fees were due.

In Dumadag vs. Lumaya ^[23]
the Court ordered the indefinite suspension of a lawyer for not
remitting to his client the amount of P4,344.00 that he had received
pursuant to an execution.

In Gatchalian Promotions Talents Pool, Inc. vs. Atty. Naldoza^[24]
the respondent was disbarred for obtaining from his client the amount
of US$2,555.00 allegedly as cash bond in an appealed case before this
Court, when in fact no such amount has been paid or that the Court
required such payment.

In the present case, respondent collected money from the
complainant and the nephew of the detained person in the total amount of
P64,000.00 for the immediate release of the detainee through his
alleged connection with a Justice of the Supreme Court He deserves to be
disbarred from me practice of law.

This is not the first time that respondent has been charged with and found guilty of conduct xitibecoming a lawyer. In Gil T. Aquino vs. Atty. Yencestao C. Barcelona, ^[25]
respondent misrepresented to the complainant that he could secure the
restructuring of the complainant’s loan with the PNB through his
connection with a certain Gonzalo Mericullo, legal assistant in the PNB.
Based on such misrepresentation, respondent asked and received the
amount of F,50,000.0C from the complainant allegedly to be paid to the
PKB. It turned oat that there was no such employee in the PNB by the
name Gonzalo Mericullo and the complainant’s property was eventually
foreclosed. As in the present case respondent did not appear before the
IBP Commission on Bar Discipline despite receipt of the notices sent and
duly received by him. After due proceedings, th. IBP Board of
Governors found respondent guilty of professional misconduct, and
recommended that he be suspended from the practice of law for six months
and ordered to render the accounting and restitute whatever remained
of the P60,000.00 to the complainant The Court adopted such finding and
recommendation and respondent was ordered suspended from the practice of
law for six months, effective immediately.

Respondent has demonstrated a penchant for misrepresenting to
clients that he has the proper connections to secure the relief they
seek, and thereafter, ask for money, which will allegedly be given to
such connections. In this case, respondent misrepresented to complainant
that he could get the release of Mr. Porfirio Daen through his
connection with a Supreme Court Justice. Not only that, respondent even
had the audacity to tell complainant that the Justices of the Supreme
Court do not accept checks.

In so doing, respondent placed the Court in dishonor and public contempt In Surigao Mineral Reservation Board vs. Cloribel,^[26] the Court expounded on a lawyer’s duty to the courts, viz:

A lawyer is an officer of the courts; he is, “like the court
itself, an instrument or agency to advance the ends of justice.’ [People
ex rel. Karlin vs. CulkirL, 60 A.L.R. 851, 855]. His duty is to uphold
the dignity and authority of the courts to which he owes fidelity, ‘not
to promote distrust in the administration of justice.” [In re Sotto, 82
Phil. 595, 602]. Faith in the courts a lawyer should seek to preserve.
For, to undermine the judicial edifice “is disastrous to the continuity
of the government and to the attainment of the liberties of the people.”
[Malcolm Legal and Judicial Ethics, 1949 ed., p. 160], Thus has it been
said of a lawyer that “[a]s an officer of the court, it is his sworn
and moral duty to help build and not destroy unnecessarily that high
esteem and regard towards the courts so essential to the proper
administratira of justice,”

The Judiciary h&> been besieged enough with accusations of
corruption and malpractice. For a member of the legal profession to
further stoke the embers of mistrust on the judicial system with such
irresponsible representations is reprehensible and cannot be tolerated.
Respondent made a mockery of the Judiciary and further eroded public
confidence iri courts and lawyers when he ignored the proceedings in the
Aquino case and in the present case. More so, when he misrepresented to
complainant that he has connections with a Member of the Court to
accommodate his client and that Justices of the Court accept money.
Indubitably, he does not deserve to remain a member of the Bar any:m;
mte longer.

The practice of law is a privilege burdened with condition.
Adherence to the rigid standards of mental fitness, maintenance of the
highest degree of morality and faithful compliance with the rules of the
legal profession are the conditions required for remaining a member of
good standing of the bar and for enjoying the privilege to practice law.
The Supreme Court, as guardian of the legal profession, has ultimate
disciplinary power over attorneys. This authority to discipline its
members is not only a right but a bounden duty as well . . . That is why
respect and fidelity to the Court is demanded of its members.^[27]

WHEREFORE, for gross misconduct, respondent Wenceslao C. Barcelona
is DISBARRED from the practice of law. His name is ordered STRICKEN
from, the Roll of Attorneys. He is further directed to return to
complainant Felicitas Berbano the amount of Sixty Four Thousand Pesos
(P64,000.00) within thirty (30) days from notice of this Decision.

This Decision shall take effect immediately.

Let copies hereof be furnished the Office of the Bar Confidant, to
be appended to respondent’s personal record; the Integrated Bar of the
Philippines; the Office of the President; the Department of Justice; the Philippine Judges Association; and all courts of the land for their
information and guidance.

SO ORDERED.”

Copy of this decision was received by respondent on September 15, 2003.

__3__February 2004.

.

^[2] Rolio, p,4.

 ^[3] Exhibit “A”, Affidavit-Complaint, Rollo, pp. 2-4.

 ^[4] Id., p. 6.

 ^[5] Per Registry Return Receipt showing that the order was received on April 20, 1999. Rollo, back of p.6.

 ^[6]Rollo, pp. 7-8.

 ^[7] Per Order dated July 9,1999 , Rollo, p. 10.

 ^[8]Per Registry Return Receipt showing that the order was received on July 22,1999 , back of p. 10.

 ^[9] Rollo, p. 12, Order dated August 13,1999 .

 ^[10] Rollo, p. 13.

^[11] Id, pp. 14,16,18,21 and 27; Rollo, see back of pp. 18-26.

^[12] Deles vs. Aragona, Jr., Adm. Case No. 598, March 28,1969,27 SCRA 633,644.

 ^[13] Gatchalian Promotions Talents Pool, Inc., vs. Aity. Naldoza, A.C No. 4017, September 29,1999 ,374 Phil. 1,10.

 ^[14] See Note 1.

 ^[15] Ibid.

 ^[16] Concepcion vs. Fandifio, Jr., 334 SCRA 136,142 (200).

 ^[17] Id.

 ^[18] Office of the Court Administrator vs. Sumilnng, A.M. No. MTJ-94-989 April 18,1997 ,271 SCRA 316, 325.

 ^[19] Naval vs. Panday, A.M. No. RTJ-95-1283, December 21,1999 ,321 SCRA 290,301; citing People vs. Nimo, 227 SCRA 69 (1993).

 ^[20] Ibid.

 ^[21] A.C. No. 5019, April 6,2000 ,386 Phil. 221.

 ^[22] A.C. No. 4083, March 27,2000 , 328 SCRA 694.

 ^[23] A.C. No. 2614, June 29,2000 ,334 SCRA 513.

 ^[24]Gatchalisn case, supra,, Note 18.

 ^[25] A.C. No. 5668, April 19,2002.

 ^[26] 31 SCRA 1,16-17(1970).

 ^[27] Dmnadag case, supra., Note 23.