OCA CIRCULAR NO. 65-2005, May 25, 2005

For the information and guidance of all concerned, quoted
hereunder is the Resolution of the Second Division dated June 28, 2004
in Administrative Case No. 4762, entitled “Linda Vda. de Espino vs.
Atty. Pepito C. Presquito”, to wit:

“On June 9, 1997 , Linda Vda. de Espino wrote a letter-complaint^[1]
with the then Court Administrator Alfredo Benipayo, charging respondent
Atty. Pepito C. Presquito, a member of the Integrated Bar of the
Philippines (IBP), Misamis Oriental Chapter, for ‘having employed fraud,
trickery and dishonest means in refusing to honor and pay [her] late
husband Virgilio Espino, when he was still alive, the sum of
P763,060.00’ According to complainant, respondent’s unlawful refusal and
dilatory tactics partly triggered the death of her husband, who died
‘disillusioned and embittered.’^[2]
The letter-complaint and affidavit also alleged that notwithstanding
the numerous oral demands by Mr. Espino and complaint (after the death
of Mr. Espino), respondent still refused to pay the amounts represented
by the eight checks which had all been dishonored. Complainant surmised
that Atty. Presquito’s refusal to pay may be due to his reliance on the
influence of his father-in-law, a former Executive Judge of the RTC
(Cagayan de Oro), and of his uncle, an RTC judge (Cagayan de Oro).

The records show that sometime in September 1995, respondent was
introduced to complainant’s late husband, Mr. Virgilio M. Espino. Mr.
Espino, a resident of Davao City , had sought the assistance of
respondent, a resident of Cagayan de Oro, regarding the sale of his
piece of land with an area of 11,057.59 sq.m. situated in Misamis
Oriental. The discussion between Mr Espino and the respondent resulted
in the sale of the property to respondent.^[3] Under the terms of the agreement between Mr. Espino and respondent,^[4]the purchase price of the land was Pl,437,410.00, payable on a staggered basis and by installments.^[5] Pursuant to the terms of payment in the agreement, respondent issued eight post­ dated checks, totaling P736,060.00.^[6]
Respondent then entered into a joint venture or partnership agreement
with Mrs. Guadalupe Ares for the subdivision of the land into home-size
lots and its development, with a portion of the land retained by
respondent for his own use.^[7] The land was eventually titled in the name of respondent and Mrs. Ares, and subdivided into 35 to 36 lots.

Meanwhile, the eight post-dated checks issued by respondent were
all dishonored. Mr. Espino made repeated demands for payment from
respondent but the latter refused. Mr. Espino died in December 1996. His
widow, complainant, then tried to collect from respondent the value of
the eight checks. When complainant’s numerous pleas remained unheeded,
she filed the complaint in June 1997.

In his comment dated September 22, 1997 , respondent denied any
wrongdoing, and said that the allegations that he had employed “fraud,
trickery and dishonest means” with the late Mr. Espino were totally
false and baseless. The complaint, according to respondent, stemmed from
complainant’s lack of knowledge as to “the real story” of the
transaction between complainant’s husband and respondent. He also
vehemently took exception to the imputation that he was banking on the
influence of his father-in-law and uncle- in-law.

Respondent does not deny the issuance of the eight checks. What
respondent claims, however, is that the nonpayment was justified by the
unresolved problems he and Mrs. Ares have with respect to the
right-of-way of the land. He alleged that Mr. Espino had made assurances
that the land had a right-of-way required for its development, but
respondent later found out that such road-right-of-way required the
consent of four other land owners, and the expense would be considerably
more than he was made to believe. According to respondent, he and Mr.
Espino had agreed that the latter would not encash the checks or demand
the equivalent of the same until the right-of-way problem of the land
had been resolved.^[8]
Respondent’s position is that until the problem of obtaining a right-
of-way to the land has been resolved, nothing has yet accrued against
him or Mrs. Ares (his partner), as it would be “very unfair and unjust”
for them to pay Mr. Espino when the land could not be developed and
sold.^[9]

Respondent also alleged that he was entitled to set-off against
the amount he owes Mr. Espino or his heirs from the purchase of the
land, the advances he made to Mr. Espino and the cost he incurred when
he defended Mr. Espino’s son in a criminal case. He later on manifested
that he has fully paid the portion of the land which had been titled in
his name through the same advances and incurred expenses.^[10]

In a resolution dated November 26, 1997 ,^[11]
the case was referred to the Integrated Bar of the Philippines (IBP)
for investigation, report and recommendation/decision, and assigned to
the IBP-Commission on Bar Discipline (CBD).

In the IBP-CBD Report dated November 12, 2002,^[12]
Investigating Commissioner Caesar R. Dulay found that “the facts and
credible evidence made available in this case indubitably establish
respondent’s failure to live up to the demands of the Lawyers Code of
Professional Responsibility and the Canons of Professional Ethics.” For
having failed to act with candor and fairness toward complainant,
Commissioner Dulay recommended that respondent be suspended from the
practice of law for six (6) months, and ordered to immediately account
with complainant regarding the sale of the piece of land which had been
subdivided in the name of respondent and his business partner. On June
21, 2003, the Board of Governors of the IBP passed a Resolution
adopting/approving the Report and Recommendation of Commissioner Dulay,
finding that “respondent’s lack of fairness and candor and honesty [was]
in violation of Rule 1.01 of the Code of Professional Responsibility.”

After a careful consideration of the record of the instant case,
we agree that respondent was wanting in fairness, candor and honesty
demanded of him by the Code of Professional Responsibility and the
Canons of Professional Ethics. We find, however, the recommended penalty
of six (6) months suspension too light considering respondent’s gross
misconduct.

Complainant’s testimony and exhibits have clearly established
that: (1) there was an agreement between respondent and complainant’s
late husband for the sale of the latter’s land; (2) respondent had
issued the eight checks in connection with said agreement; (3) these
checks were dishonored and remain unpaid; and (4) the land sold had an
existing road-right-of-way. Complainant’s exhibits were formally offered
as early as January 6, 1999^[13] and were admitted without objection from respondent.^[14]

In the face of these uncontroverted facts, it was incumbent upon
respondent to prove a legal excuse or defense for nonpayment of the
eight checks.

Respondent utterly failed in this regard.

From the termination of complainant’s presentation of evidence
on December 1998 until Commissioner Dulay’s report on November 12, 2002,
the records show that respondent was unable to present evidence –
either testimonial or documentary – to prove that he had legal cause to
refuse payment, or that he was entitled to legal compensation. Even
respondent’s own statements – which, without corroborating evidence,
remain mere self-serving allegations – fall short of testimony, as he
failed to submit to cross-examination by opposing counsel or for
clarificatory questions by the IBP-CBD. Worse, respondent attached
eighteen documents to his comment, hut only went so far as to mark (without
a formal offer) the agreement between him and Mr. Espino (for the sale
of the land), and the partnership agreement between him and Mrs. Ares. Thus, respondent had no evidence other than his own allegations.

Respondent’s failure to present evidence is a breach of Rule 12.01 of the Code of Professional Responsibility,^[15]especially
in the light of the numerous postponements and resettings he requested
for and was granted with on the ground that he needed more time to
prepare his evidence. We note that respondent was first scheduled to
present his evidence on December 14, 1998 . Two years – five resettings,
and three orders submitting the case for resolution – later, respondent
still had not proffered testimonial or documentary evidence.

Respondent claims that his failure to present evidence was due to his financial difficulties, i.e., he could not afford to spend for. travel expenses of his witnesses.^[16]
We are not persuaded. First, it boggles the mind how financial
constraints could have prevented respondent from presenting the
originals of the documents attached to his comment, proving, among
others, the alleged advances and costs on Mr. Espino’s behalf. The
originals of these documents are presumably in his possession. Second,
with respect to the absence of testimony, respondent could have
submitted the affidavits of his witnesses – the taking of which he could
have done himself in Cagayan de Oro to keep down the cost. The records
are clear that he was allowed this option.^[17] But he did neither.

All these circumstances lead us to the ineluctable conclusion that respondent could not present evidence because there really was none to justify his nonpayment.^[18]

Even if we were to excuse respondent’s procedural lapse and
consider his written pleadings as testimony, we agree with Commissioner
Dulay that respondent’s problems with respect to the right-of-way or his
partnership with Mrs. Ares do not excuse his nonpayment. As stated in
the IBP-CBD Report:

[T]he solution to the right-of-way problem however clearly
lies in the hands of respondent…. We note that respondent has already
taken title over the property together with Guadalupe Ares by making
complainant’s late husband, sign over the property by way of the Deed of
Sale. We therefore find respondent’s position vis-a-vis the widowed
complainant sneaky and unfair. We reiterate that respondent has assumed
responsibility for the negotiations on the road-right-of-way and was
aware of the problem. To [sic] our mind he has used the alleged
road-right-of-way problem only as an afterthought and a reason to delay
and in fact deny the complainant payment of what is due her. Respondent
also alleges and blames the deceased husband of complainant for the
failed project but the facts show otherwise. They are just bare
allegations and remain unsubstantiated. Besides, respondent and Ares
took risks in the business venture and are now the titled owners of the
property. The seller cannot be blamed for any failure in the project.
Respondent’s actuations in the whole transactions is [sic] not at par with the standards demanded of him as a member of the bar. Respondent is lacking in fairness and candour [sic] and
honesty. The fact that he has unreasonably delayed and failed to
account with complainant for a long time and the fact of his having
allowed the checks he issued to bounce is [sic] unacceptable and censurable behavior for a member of the bar. ^[19][citations omitted]

Having no legal defense to refuse payment of the eight
dishonored checks, respondent’s indifference to complainant’s
entreaties, for payment was conduct unbecoming of a member of the bar
and an officer of the court. Respondent violated the Code of
Professional Responsibility by his unlawful, dishonest and deceitful
conduct towards , complainant and her late husband,^[20]first
by allowing the eight (8) checks he issued to bounce, then by ignoring
the repeated demands for payment until complainant was forced to file
this complaint, and finally by deliberately delaying the disposition of
this case with dilatory tactics. Considering that the property of
complainant and her late husband is already in respondent and Mrs. Ares’
name, the injustice of respondent’s different maneuvers to evade
payment of the eight checks – due and unpaid since 1996 – becomes more manifest.

It should be stressed that respondent issued (8) worthless
checks, seemingly without regard to its deleterious effects to public
interest and public order. We have already declared, most recently in Lao v. Medel ^[21]
that the issuance of worthless checks constitute gross misconduct, and
puts the erring lawyer’s moral character in serious doubt, though it is
not related to his professional duties as a member of the bar. 2 He not
only sets himself liable for a serious criminal offense under B.P. Big.,^[22]
but also transgresses the Code of Professional Responsibility,
specifically the mandate of Canon 1 to obey the laws of the land and
promote the respect for law.

It behooves respondent to remember that a lawyer may be suspended or disbarred for any misconduct, even if it pertains to his private activities,
as long as it shows him to be wanting in moral character, honesty,
probity or good demeanor. Possession of good moral character is not only
a good condition precedent to the practice of law, but a continuing
qualification for all members of the bar.^[23]
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.^[24]Thus, the Code of Professional Responsibility provides:

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

xxx

xxx

xxx

Rule 7.03 A lawyer shall not engage in conduct that adversely
reflects on his fitness to practice law, nor shall he, whether in public
or private life, behave in a scandalous manner to the discredit of the
legal profession.

Given the foregoing, and in line with jurisprudence involving lawyers who issued worthless checks – Lao v. Medel, ^[25] Co v. Bernardino,^[26]and Ducat v. Villalon, Jr., ^[27] – we find respondent’s reprehensible conduct warrants suspension from the practice of law for one (1) year.

WHEREFORE, respondent ATTY. PEPITO C.
PRESQUITO is found guilty of gross misconduct and is hereby SUSPENDED
from the practice of law for one (1) year, and ORDERED to immediately
account with complainant regarding the sale ot the piece of land, which
has been subdivided in the name of respondent and his business partner.

Let a copy of this decision be spread in his file at the Office
or the Bar Confidant and of the Integrated Bar of the Philippines .

SO ORDERED.”

Copy of the resolution was received by respondent on July 30
2004 and his motion for reconsideration was denied with finality in the
resolution of the Court dated December 13, 2004 which he received on
January 18, 2005 .

__25__ May 2005.

	ZENAIDA N. ELEPAÑO
	Acting Court Administrator

^[2] Id.

^[3] Rollo, pp. 31-32 (Respondent’s Comment, Annex “1”).

^[4] Id.

^[5] Id.

^[6] Rollo, Vol. II, pp. 13-23.

^[7] Rollo, p. 90-97.

^[8] Id. p. Vol. II, pp. 13-23.

^[9] Id., pp. 20-24.

^[10] Id., p. 85.

^[11] Id. , p. 68.

^[12] Id., pp. 71-77.

^[13] Rollo, Vol. II, pp. 13-23.

^[14] Id. , p. 73.

^[15] Ru1e P12.01 – A lawyer
shall not appear for trial unless he has adequately prepared himself for
the law and the facts of his case, the evidence he will adduce and the
order of its profference. He should also be ready with the original
documents or comparison with the copies.

^[16] Rollo, pp. 84.

^[17] Rollo, Vol. II, p. 76.

^[18]Rule 132. Section 34
of the Rules on Evidence provides: Offer of evidence- The court shall
consider no evidence which has not been formally offered. The purpose
for which the evidence is offered must be specified.

^[19] Rollo, pp 75-76.

^[20] Rule 1 .01 – a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

^[21] A.C. No. 5916 ( July 1,2003 ).

^[22] Lao v. Medel A.C. No. 59l 6 ( July 1, 2003 ), citing Co v. Bernardino, A.C. No. 3919 (January 28, 1998).

^[23] Rural Bank of Silay, Inc. v. Pilla, 350 SCRA 138 (2001).

^[24] Ducat v. Villalon, Jr., A.C. No. 3910 ( August 14,2000 ) citing Cruz v. Jacinto, A.C. No. 5235 (March 22, 2000), Maligsa v. Cabantig, 272 SCRA 408 (1997).

^[25] A.C. No. 5916 ( July 1,2003).

^[26]A.C. No. 3919 (January 28, 1998).

^[27] A.C. No. 3910 ( August 14, 2000 ).