JOSE B. PEÑA AND JUAN B. BAÑEZ, JR., COMPLAINANTS, VS. NESTOR M. ANDRADA, RESPONDENT.

In a verified petition filed with this Court on January 31, 1970,
Jose B. Peña and Juan B. Bañez,
Jr. alleged that the respondent, Nestor M. Andrada,
is a member of the Philippine Bar and before his appointment as Provincial
Fiscal of Oriental Mindoro, was a practicing
attorney; that sometime in 1968, Jose B. Peña
engaged the services of respondent as private prosecutor in Criminal Case No.
88333 for estafa entitled “People of the Philippines
versus Juan B. Bañez, Jr. and Amelita Joaquin” of the Court of First
Instance of Manila, Branch XVIII, presided by Judge Ruperto
Kapunan, Jr.; that the parties, with the conformity
and consent of the Court, agreed to settle the case amicably with Juan B. Bañez, Jr. and his wife, Amelita
Joaquin, undertaking to pay Jose B. Peña the amount
of the loan involved in the case plus interest; that pursuant to said
agreement, Juan B. Bañez, Jr. paid Jose B. Peña, through the latter’s attorney, respondent Nestor M. Andrada, the amount of P10,000.00 covered by three (3)
checks, receipt of which was duly acknowledged by the respondent; that aside
from the amount covered by the checks, during the period from December 4, 1968
to March 24, 1969, inclusive, the respondent, directly and/or through a
representative, obtained from Juan B. Bañez, Jr. and
his wife various amounts with a total of P4,050.00 on the assurance of the
respondent that he was going to pay the said amount to his client, Jose B. Peña; that all
the aforesaid amounts were never received by Jose B. Peña;
that the checks covering the amount of P10,000.00 were cashed by the respondent
himself or through his representative, and together with the other amounts
which the respondent received in cash from Juan B. Bañez,
Jr. and his wife were all misappropriated by said respondent for his own use
and benefit; that despite repeated demands by Jose B. Peña
and Juan B. Bañez, Jr., the respondent refused to
deliver the aforesaid amounts to Jose B. Peña; that
as a consequence of respondent’s refusal to deliver the aforesaid amounts to
Jose B. Peña, the respondent was charged with estafa before the City Fiscal of Manila, docketed as I.S.
No. 69-21152; and that the respondent’s act in unjustly retaining money due his client constitutes gross misconduct which is a sufficient
ground for removal or suspension
from his office as an attorney.^[1]

This Court required the respondent to file an answer to the
complaint within ten (10) days from notice.^[2]

In his answer dated March 12, 1970, the respondent admits having
received the amount of P10,000.00 but not the other amounts mentioned in the
petition, and avers, as special defenses, that while the criminal case of estafa against Juan B. Bañez, Jr.
and his wife was pending in the Court of First Instance of Manila, involving the sum of P27,000.00, the
parties agreed to settle the case amicably by the accused paying the entire
amount due plus interest and other expenses; that as a result of this
agreement, Juan B. Bañez, Jr. started paying Jose B. Peña, through the respondent, the sum of P10,000.00; that
the additional sum of P4,050.00 was the subject discussed in the preliminary
investigation wherein the respondent agreed to return the sum of P10,000.00;
that this administrative charge filed against the respondent was only the
result of misunderstanding as the respondent accepted in good faith the amount
of P10,000.00 for which he issued the corresponding receipt; and that
notwithstanding the fact that the respondent rendered legal services to Jose B.
Peña, the respondent is willing to return the amount
of P10,000.00.^[3]

This Court referred on April
3, 1970 this case to the Solicitor General for investigation,
report and recommendation.^[4]

In the report and recommendation submitted by the Solicitor
General on May 30, 1979,
the following facts were stated:

“It appears that respondent was the lawyer of Jose B. Peña in two (2) cases to wit:

a) an administrative case involving a
parcel of land in Davao
which was already terminated; and

b) in Criminal Case No. 88333, Court of First Instance of
Manila, Branch XVII, entitled:  ‘People
of the Philippines
vs. Juan B. Bañez, Jr. and Amelita
S. Joaquin’, for estafa in the amount of P27,200.00
and wherein Jose E. Peña was the complainant.

Before the criminal case could be terminated, the complainant
therein Jose B. Peña (now one of the petitioners
herein), and the accused therein Juan B. Bañez, Jr.
(also a petitioner herein), and his spouse, agreed to settle the case amicably
(par. 5 petition).  Pursuant to the
agreement, Bañez started paying Peña,
thru respondent herein, as follows:

1.  P5,000 under
Treasurer’s Check No. T-44105 of the Manufacturers Bank & Trust Co. dated October 16, 1968;

2.  P1,000 under Pacific
Bank Check No. 1230806-L, dated December
10, 1968;

3.  P4,000 under Pacific
Bank Check No. 1230807 dated December
16, 1968.

The said payments were properly receipted and were made with the
knowledge of Peña.

The criminal case against the Bañez
spouses could not, however, be dismissed since the balance of P17,200.00 remained unpaid. 
Meanwhile, the respondent held on to the amount pending settlement of
his attorney’s fees in the administrative case adverted to above as well as in
the criminal case against the Bañez spouses.

That was the situation when the respondent was appointed on June 16, 1969 as Provincial Fiscal of
Oriental Mindoro. 
By reason of his said appointment, the respondent withdrew as private
prosecutor in the criminal case.  It was
at that juncture that the respondent had a misunderstanding with his then
client, Jose B. Peña, anent the amount of attorney’s
fees.  Peña
even went to the extent of denying having given authority to respondent in the
collection of the various amounts from
the Bañez spouses.

Respondent, who was then attending to his duties as Provincial
Fiscal of Oriental Mindoro, decided to return the
amount to Jose B. Bañez, Jr. who, however, claimed
that aside from the amounts covered by receipts, he had also given respondent
and the latter’s representative on different dates, cash totalling
P4,050.00.  As respondent vehemently
denied having received the latter amount, Bañez filed
with the Fiscal’s Office of Manila a complaint for estafa against the herein respondent.  It was at this time when the petition for
disbarment was filed with this Honorable Court.

An information for estafa
was subsequently filed against the respondent in the Court of First Instance of
Manila (Criminal Case No. 1563).  On July 30, 1971, however, the spouses Bañez executed an affidavit of desistance (Annex ‘A’ Motion
to Dismiss) which reads as follows:

‘JUAN B. BAÑEZ, JR.
and ANGELITA S. JOAQUIN, spouses, of legal age, and with residence at No. 54 Capalad Street, Balangkas,
Valenzuela, Bulacan, being first duly sworn, under
oath, jointly depose and state:

1.  That they are the complaining witness in
Criminal Case No. 1563 entitled ‘People of the Philippines vs. Nestor M. Andrada‘ of the Court of First Instance of Manila, which is
now the subject of re-investigation by the City Fiscal’s
Office of Manila upon petition of the accused;

2.  That said case which is for estafa arose out of the delivery of the sum of P14,050.00
by complainants Juan B. Bañez, Jr. and Amelita S. Joaquin to accused Nestor M. Andrada
for him to deliver to his client, Jose B. Peña, in
connection with the settlement of a certain criminal case (Crim.
Case No. 88333), People vs. Bañez, et al. CFI Manila)
in which herein complainants and said Mr. Peña were
parties;

3.  That Atty. Andrada
acknowledged having received the aforementioned amount of P14,050.00, even
signing receipts therefor, but kept the amount
because he was waiting for complainants to complete the total sum of their
obliga­tion before turning the same to his client, Mr. Peña;

4.  That due to misunderstanding and lack of
communication between complainants, Mr. Peña and
Atty. Andrada, who had, in the meantime, withdrawn as
Mr. Peña’s counsel due to his appointment as
provincial fiscal of Oriental Mindoro, herein
complainants entertained the thought that Atty. Andrada
absconded with or retained the money
entrusted to him for delivery to Mr. Peña, which led
to the filing of the present cri­minal case in the City Fiscal’s
Office of Manila, against Atty. Andrada;

5.  That when this case was pending preliminary
investigation in the City Fiscal’s Office, accused
Atty. Andrada, being then the provincial fiscal of
Oriental Mindoro and saddled with the duties of his
position there, was not always present at the investigation, so much so that he
had not the full opportunity to amplify his defense and because of his repeated
failures to attend the preliminary investigations, the Investigating Fiscal, on
June 4, 1970, filed the aforesaid Criminal case in the Court of First Instance
of Manila;

6.  That on June 11, 1970, accused Atty. Andrada returned to herein complainants the amount of
P14,050.00, which they themselves delivered to Mr. Peña
in full settlement of their obligation thereby resulting in the dismissal by
the Court of First Instance of the criminal case (Crim.
Case No. 88333), on the very same day;

7.  That the accused had explained his side of the
matter, which explanation the herein complainants found reasonable and
satisfactory, and that complainants, after a careful deliberation on all the
facts and circumstances surrounding the
case, were fully convinced that accused Atty. Andrada
had no intention whatsoever to defraud them or to abscond or retain the money
for his own use and benefit;

8.  That in view of all the foregoing, herein
complaining wit are no longer interested in, and have decided to desist from,
further prosecuting Criminal Case No. 1563 against accused Nestor M. Andrada, or further appearing or testifying before any
investigating body, court or administrative body, in any case having to do with
the matter that gave rise to the filing of the present criminal case;

9.  That, in the interest of fairness and to
prevent a miscarriage of justice, complainants herein respectfully request that
the City Fiscal’s Office of Manila recommend or take
such steps that would lead to the prompt dismissal of Criminal Case No. 1563.

IN WITNESS WHEREOF, deponents Juan B. Bañez,
Jr. and Amelita S. Joaquin have set their signatures hereinbelow this 29th day of July, 1971, at the City of
Manila, Philippines.

(SGD) JUAN B. BAÑEZ, JR.

(SGD) AMELITA S. JOAQUIN

SUBSCRIBED AND SWORN to before me this 30th day of July, 1971, at
the City of Manila, Philippines.

(SGD) MILAGROS V. CAGUIOA

Investigating Fiscal’

On the basis of said affidavit, Assistant City Fiscal Milagros V.
Caguios of the City of Manila
filed a Motion to Dismiss, (Annex ‘B’, Motion) the criminal case against the
respondent.  On October 27, 1971, the CFI of Manila promulgated
an Order of Dismissal (Annex ‘C’ Motion) dismissing the criminal case against
respondent.”^[5]

On the different hearings
of the disbarment case scheduled by the Office of the Solicitor General, complainants
did not appear.  In view thereof, the
Solicitor General made the following recommendation:

“From the foregoing, it is clear that the petitioners are no
longer interested in prosecuting this Administrative case.  No clear and positive step was ever taken by
petitioners to prove or substantiate the charges in their petition for
respondent’s disbarment or suspension. 
On the other hand, respondent has shown dogged determination in
defending himself as shown by his presence in all the proceedings taken before
the Office of the Solicitor General wherein he adduced competent documentary
evidence marked as Exhibits ‘1’, ‘2’ and ‘3’ which in effect exonerates him
from the charge of ‘unjustly retaining money due his client and/or
misappropriating for his own use and benefit money of his client’.

The Supreme Court has set the guideline for the quantum of evidence
that is necessary to justify the imposition of a penalty against a member of
the Bar in a disbarment case.  Thus, in
Lim vs. Antonio, Administrative Case No. 848, September 39, 1971, 41 SCRA, Sept. 30, 1971, p. 44, this Honorable Court ruled, as
follows:

‘Considering the serious consequences of the disbarment or
suspension of a member of the Bar, We have consistently held that clearly
preponderant evidence is necessary to justify the imposition of either penalty. 
More so in the instant case where it has been clearly established that
complainant’s motives are not beyond suspicion. 
The evidence of record shows that the respondent was instrumental in the
filing of Criminal Cases Nos. 3681 and 91293, the first for perjury filed in
the Municipal Court of Masbate, Masbate,
and the second for falsification of a public and/or official document filed in
the Court of First Instance of Manila, against said complainant.’

In a subsequent case, (Magno vs. Gellada, Administrative Case No. 767, December 20, 1971, 42
SCRA, December 20, 1971, p. 549) this Honorable Court held that:

‘It is a well-settled rule that 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
convincing proof.  Thus, as held in one
case, the power to disbar attorneys ought always to be exercised with great
caution, and should follow only where there is a clear preponderance of
evidence against the respondent.  For the
presumption is – an attorney is innocent of the charges prepared and has
performed his duty as an officer of the court in accordance with his oath.’

IN VIEW OF THE FOREGOING consideration, it is respectfully
recommended that the instant petition for disbarment against res­pondent Nestor
M. Andrada be dismissed.

Respectfully
submitted.

Manila,
May 21, 1979.”^[6]

The recommendation of the Solicitor
General is well-founded.

The complainants, Jose B. Peña and Juan
B. Bañez, Jr.,
by filing this disbarment case
which they later failed to prosecute, wasted the valuable time of the
Supreme Court and of the Office of the Solicitor General.  This practice should be discouraged.

WHEREFORE, the complaint for disbarment against Nestor M. Andrada,
a member of the Philippine Bar and Provincial Fiscal of Oriental Mindoro, is hereby
DISMISSED.

The petitioners are ordered to show cause within ten (10) days from notice why they
should not be held in contempt of court for filing a petition for disbarment which they failed to prosecute.

SO ORDERED.

Teehankee, (Chairman), Makasiar, Guerrero, De Castro, and Melencio-Herrera, JJ., concur.

^[1]
Petition, Rollo, pp. 29-26.

^[2]
Resolution dated February 5, 1970,
Rollo, p. 14.

^[3]
Answer, Rollo, pp. 3-2.

^[4]
Rollo, p. 1.

^[5]
Report and Recommendation, pp. 6-10.

^[6]
Ibid., pp. 16-17.