OCA CIRCULAR NO. 47-2005, April 27, 2005

For the information and guidance of all concerned,
quoted hereunder is the Decision of the Second Division dated October
21, 2004 in Administrative Case No. 6441 (formerly CBD 02-946), entitled
“Violeta R. Tahaw vs. Atty. Jeremias P. Vitan”, to wit:

“A lawyer must at all times comport himself in a
manner befitting a member of this noble profession and worthy of his
esteemed position in society. Public confidence in law and lawyers may
be eroded by the irresponsible and improper conduct of a member of the
Bar.^[1] Thus, any indicia of erosion in the dignity of the profession will be dealt with accordingly by this Court.

In a Complaint ^[2]dated
11 March 2002 , Violeta R. Tahaw claimed that she secured the services
of respondent for filing the appropriate action for the partition of a
real property located in Makati City sometime in 1999. As agreed upon,
petitioner delivered to respondent four (4) checks in the total amount
of P30,000.00 representing payment of the latter’s professional fee.
However, after almost a year without petitioner hearing from respondent
about the case he would file in court, petitioner sent respondent a
letter-inquiry as to the status of the case. Respondent assured
complainant that he had already filed the appropriate Case in Makati .
Not convinced by her counsel’s assurance, complainant went to the Office
of the Clerk of Court of Makati City to check if a case was indeed
filed by respondent for and in her behalf.

A Certification dated 15 August 2000 issued by the
assistant Clerk of Court of Makati City confirmed complainant’s
suspicion that respondent did not file the case as agreed upon. She
wrote respondent informing him that she is terminating the latter’s
services as counsel and demanded the refund of the P30,000.00.
Respondent failed to refund the aforesaid amount, and complainant was
thus prompted to seek the assistance of the Integrated Bar of the
Philippines (IBP).

The IBP, responding to complainant’s predicament and wrote respondent two (2) letters,^[3] informing the latter of complainant’s grievance and asking his position thereon. Respondent, through a letter^[4]
to the IBP, claimed that the problem arose from a miscommunication
between client and counsel. In addition, respondent insinuated that the
case he was supposed to file for the complainant was complicated by the
filing of other earlier complaints which he was not privy to. He
promised to refund the complainant the P30,000.00.

The IBP acknowledged receipt of respondent’s
response and instructed him to issue six (6) postdated checks, each in
the amount of P5,000.00 and dated a month apart, and to deliver the same
to the IBP’s office to facilitate the return of the P30,000.00 to
complainant. Despite the instruction, respondent failed to refund the
amount to complainant, and succeeded only in having complainant go back
and forth to his office. Complainant once more wrote to respondent
regarding the checks, only to be told by respondent that he will just
send the checks through his secretary. Complainant then filed a
complaint for disbarment or suspension with the IBP.

For his part, respondent denied that he obligated
himself to file the partition case upon receipt of the P30,000.00 as
claimed by complainant. He averred that the said amount represents
consultation fees, research fees, and minimal acceptance fees.^[5]
He stated that complainant failed to disclose to him circumstances
which would have adverse effects on the case sought to be filed^[6] and that when confronted complainant about these, the latter became “lukewarm.”^[7]
Furthermore, he claimed that he asked complainant for the filing fees
but the latter “dilly­ dallied” and after a while he received a letter
terminating his services.^[8]
In fact, complainant had already affixed her signature to the complaint
but was probably swayed by other advisers not to proceed with, the case
and instead pursue the refund of the P30,000.00.^[9]

On 27 November 2003 , IBP Commissioner Acerey C.
Pacheco submitted his report and recommendation to the IBP Board of
Governors. As per the report, respondent’s agreement to represent
complainant in the partition case intended to be filed was established.^[10]
Likewise, the report pointed out the inconsistency between respondent’s
statement in his Answer denying that he obligated himself to file the
case upon receipt of P30,000.00 and complainant’s dilly-dallying in
giving him the amount for filing fees, as against his assurances to
complainant that the case was already filed.^[11]
The report noted that respondent’s failure to reply to or deny
complainant’s allegation in her letter terminating his services was an
admission that he miserably failed to diligently attend to the latter’s
case.^[12] Finally, the report
stated that respondent failed to comply with his commitment to return
the P30,000.00. Considering that the amount was paid by the complainant
for his professional services which he miserably failed to perform, the
same must be returned to complainant without delay.^[13]
The report recommended that respondent.be reprimanded and admonished to
be more careful in the performance of his duty to his clients.^[14]

On 27 February 2004 , the IBP Board of Governors
issued a resolution adopting and approving the Report and Recommendation
of the Investigating Commissioner,^[15] to wit:
 

RESOLVED to ADOPT and APPROVE, as it
is hereby ADOPTED and APPROVED, the Report and Recommendation of the
Investigating Commissioner of the above-entitled case, herein made part
of this Resolution as Annex “A;” and, finding the recommendation fully
supported by the evidence on record and applicable laws and rules,
considering that a lawyer should refrain from any action whereby for his
personal benefit or gain he abuses or takes advantage of the confidence
reposed in him by his client, Arty. Jeremi[as] P. Vitan is hereby
REPRIMANDED and ADMONISHED to be, henceforth, more careful in the
performance of his duty to his clients and Ordered to Immediately Return
the amount of, P30,000.00 to complainant.

After a careful consideration of the record of the
instant case, the Court agrees with the IBP in its findings and
conclusion that respondent has been remiss in his responsibilities.
However, this Court holds that the appropriate sanction should be a
suspension for a period of six (6) months.

Canon 17 of the Code of Professional
Responsibility provides: “A lawyer owes fidelity to the cause of his
client and he shall be mindful of the trust and confidence reposed in
him.” In the case of Aromin v. Atty. Boncavil, ^[16]this Court held:

Once he agrees to take up the cause of a client,
the lawyer owes fidelity to such cause and must always be mindful of the
trust and confidence reposed in him. He must serve the client with
competence and diligence, and champion the latter’s cause with
wholehearted 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
expect his lawyer to assert every such remedy or 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 diligence 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.^[17]

The trust and confidence necessarily reposed by
clients require in a lawyer a high standard and appreciation of his duty
to them. 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 legal
profession.^[18]

A perusal of the records of the case reveals that
complainant wanted to partition a parcel of residential land owned in
part by her deceased husband, Simeon Tahaw, Sr.^[19]
Allegedly, Simeon owed complainant sums of money which the former
failed to pay, as a result of which, complainant filed a case against
him. To settle the case, the spouses entered into an agreement^[20]
dated 27 May 1987 wherein Simeon Tahaw, Sr. and complainant agreed that
a specific forty (40) square meter portion of the same parcel of land
“shall pass on to complainant as her exclusive property to the exclusion
of all other heirs.”^[21] When
Simeon died, complainant went to respondent to seek the partition of
the same parcel of land with the forty (40) square meter portion thereof
awarded to her.

It is an elementary principle in civil law that every donation between the spouses during the marriage is void.^[22]
The agreement relied upon by complainant for the proposed partition
case partakes the nature of a donation by Simeon of a part of his
undivided share in the property. Hence, the agreement is void and cannot
be the source of any right in favor of complainant. The partition case
was premised on a void agreement and thus could not prosper.

Even if complainant did not disclose the previous
litigation and agreements between her and her deceased husband,
respondent would eventually find out, as in fact he did, about it in the
course of drafting the proposed complaint. Any lawyer worth his salt
would know that the partition case sought to be filed would have no
basis and would not proper. Respondent should have immediately appraised
complainant on the lack of merit of her case. Instead, he asked for
money for filing fees, and worse, pretended to have filed the complaint.

Clearly, respondent’s protestations that the delay
and eventual non-filing of the case for complainant was due to the
latter’s fault fall flat in view of the circumstances surrounding the
case. Complainant’s assertion that respondent reassured her that the
case had already been filed remains uncontroverted by the latter. Why
would respondent lead complainant to believe that a case has been filed,
and why would the latter expect that it be filed, if as respondent
claims, he was still waiting for the filing fees from the complainant?
Moreover, in his letter to the IBP dated 29 November 2003,^[23]
respondent stated that he was willing to arrange for the refund of the
P30.000.00, as he “in conscience cannot file a case merely just for the
sake of filing a case to earn [a] few bucks.”^[24]
If respondent believes that complainant’s case appeared hopeless, why
did he not advise her so? Why did he let the matter drag until this very
proceeding before he explained the non-filing of the proposed case?

When a lawyer takes a client’s cause, he thereby
covenants that he will exert all effort for its prosecution until its
final conclusion.^[25] Thus,
when respondent’s services were engaged by complainant, the former took
it upon. himself to perform the legal services required of him. In the
instant case, however, respondent seemed to have forgotten his sworn
duty after he received the money from his client.

Canon 7 of the Code of Professional Responsibility
mandates that a “lawyer shall at all times uphold the integrity and
dignity of the legal profession.” The strength of the legal profession
lies in the dignity and integrity of its members. For this reason, this
Court has been exacting in its demand of integrity and good moral
character of the members of the Bar. As explained in Sipin-Nabor v. Atty. Baterina? ^[26] 

This Court has been exacting in its
demand for integrity and good moral character of the members of the Bar.
A lawyer shall at all times uphold the integrity and dignity of the
legal profession. The trust and confidence necessarily reposed by
clients requires in the attorney a high standard and appreciation of his
duty to his clients, his profession, the courts and the public. The bar
must 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, members of the
legal fraternity can do nothing that might tend to lessen in any degree
the confidence of the public in the fidelity, honesty and integrity of
the profession.^[27]

Once a lawyer agrees to handle a case, he should
undertake the task with dedication and care, and if he should do any
less, then he is not true to his lawyer’s oath.^[28]
The records of the case clearly show that respondent failed to live up
to the duties and responsibilities of a member of the legal profession.

WHEREFORE, respondent Atty. Jeremias P. Vitan is
hereby found GUILTY of violation of Canons 7 and 17 of the Code of
.Professional Responsibility for” his failure to file the necessary
pleading for his client’s case and for the failure to return and
immediately deliver the funds of his client advanced for the purpose of
filing the said case, upon demand, and even after his commitment with
the IBP to do so. The respondent is hereby SUSPENDED for a period of six
(6) months effective from the date of promulgation hereof, with a STERN
WARNING that a repetition of the same and similar acts shall be dealt
with more severely. Atty. Vitan is ORDERED to immediately RETURN the
amount of P30 5000.00 to complainant.

Let a copy of this Decision be attached
to Atty. Vitan’s personal record in the Office of the Bar Confidant and
copies thereof be furnished to the Integrated Bar of the Philippines .

SO ORDERED.”

Copy of the Decision was received by the respondent on November 12, 2004 as shown by Registry No. 7190.

__27__ April 2005.

	PRESBITERO J. VELASCO, JR.
	Court Administrator

^[2] Rollo, pp. 1-4.

^[3] Id. at 9-10.

^[4] Id. at 11.

^[5] Id. at 17-18.

^[6] Respondent claims that
complainant previously filed a case against her husband and that she
signed an agreement with her husband “practically as settlement of the
case.” Id. at 18.

^[7] Id. at 18.

^[8] Ibid

^[9] Id., at 19.

^[10] Id. at 82.

^[11] Id. at 82-83

^[12] Id. at 83.

^[13] Id. at 85.

^[14] Id. at 85-86.

^[15] Id. at 76.

^[16] 373 Phil. 612(1999).

^[17] Id. at 618 citing Santiago v. Fojas, 248 SCRA 68 (1995).

^[18]  Supra, note 1 at 628.

^[19] Id. at 22-27.

^[20] Id. at 41.

^[21] Id.

^[22] Art. 133, Civil Code and Art. 87 of the Family Code.

^[23] Rollo,p. 11.

^[24] Ibid.

^[25] Cantiller v. Potenciano A.C. No. 3195, 18 December 1989 , 180 SCRA 246, 252.

^[26] 412 Phil 419 (2001).

^[27] Id. at 424 citing Marcelo v. Javier, 214 SCRA 1 (1992); Fernandez v. Grecia, 223 SCRA 425 (1993).

^[28]Moton v. Cadiao, 377 Phil. 1, 5 (1999).