OCA CIRCULAR NO. 50-2004, March 31, 2004

For the information and guidance of all concerned, quoted
hereunder is the decision of the First Division dated December 4, 2003
in Administrative Case No. 5718, to wit:

“The failure to file an appellate court brief without any
justifiable reason deserves sanction. Lawyers who disagree with the
pursuit of an appeal should properly withdraw their appearance and
fallow their client to retain another counsel.

The Case and the Facts

In a Complaint^[1]
dated June 21, 2002 ; Eduardo T. Abay charges Atty. Raul T. Montesino
with gross negligence, gross incompetence and evident bad faith, in
violation of his oath as a member of the Philippine bar.

Complainant avers that the Negros Institute of Technology (NIT),
of which he is a stockholder, hired respondent as counsel in an action
for “Cancellation of Title of Ownership, Recovery of Ownership and
Possession and Damages with Preliminary Injunction” against the estate
of Vicente T. Galo. The matter was docketed as Civil Case No. 1329 at
the Regional Trial Court (RTC) of BacolodCity (Branch 45).

On April 27, 1995 , the RTC rendered a Decision dismissing the
civil case. Respondent’s Motion for Reconsideration of the judgment of
dismissal was denied by the trial court in its Order dated November 3,
1995. Although respondent filed a Notice of Appeal with the Court of
Appeals (CA), he thereafter failed to submit an appellant’s brief.
Consequently, in a Resolution dated March 19, 1999 , the CA dismissed
the appeal with the following admonition:

‘We made a warning in our Resolution dated as
early as October 20,1998 that no further extension will be entertained.
Precisely because of non-submission of the Brief, we directed, on
January 8,1998 , the dismissal of the appeal. This is not to mention the
fact that a total of 120 days extension, over and above the 45-day
reglementary period, has already been granted. This brings us to the
February 9, 1999 ruling by the Supreme Court (A.M. No. 99-2-03-SC)
giving the Solicitor General a limited time of 60 days and 90 days
within which to submit his comment or appellee’s brief, with a warning
that no further extension will be granted. This precisely applies to a
First Motion for Extension. The period can even be shortened, in cases
of extreme urgency.

‘We cannot see any reason why the court’s admonishing
for a limited time to do compliance does not apply to this case now
before Us.’^[2]

Complainant attributes the failure of respondent to submit the
brief to the latter’s gross negligence and evident bad faith. Respondent
allegedly abandoned the appeal without the knowledge and consent of the
NIT. Worse, he supposedly never lold the Institute that its appeal had
already been dismissed. Complainant thus prayed that respondent be duly
sanctioned with disbarment.^[3]

In his Comment^[4]
dated October 29, 2002 , respondent denied that he was negligent in his
duty as counsel of NIT. According to him, while Civil Case No. 1329 was
pending appeal, he discovered that the property that it was seeking to
recover had been the subject of another case, Civil Case No. 6017, which
was for “Annulment of Sale, Deed of Donation, Cancellation of Titles
and Damages.” The latter case was a result of the overlapping transfers
of rights effected by the heirs of Vicente Galo through (1) a Contract
of Sale executed on April 12, 1985^[5] in favor of Floserfma Grandea^[6] and (2) Contract of Mortgage executed on September 3, 1985 in favor of Ludovico Hilado. ^[7]

Believing that the heirs of Vicente Galo had already validly
transferred to another party the ownership of the properly that the NIT
was seeking to recover, respondent felt that to pursue the appeal would
be ‘dilatory, expensive, frivolous and taxing [to] the precious time of
the [CA].^[8] Thus, he deemed
it wise to advise the stockholders of the NIT to abandon the appeal and
instead Tile appropriate Complaint(s) against x x x Floserfma Grandea of
Bacolod City and x x x Ludovico Hilado x x x of Silay City x x x to
recover the ownership and possession of the NTT’s claimed properties.’^[9]

Respondent avers that complainant was ‘unjustly adamant in his
demand to continue with [the] appeal despite x x x said legal [advice]/
However, because he sincerely felt that the ‘best way to protect the
rights of NIT was to file appropriate complaint(s) against [Grandea] and
[Hilado], x x x [he] x x x allowed the period to submit NIT’s
Appellant’s Brief to [lapse.’^[10]

Furthermore, respondent maintains that despite the fact that the
NTT did not pay his legal fees or reimburse him for his expenses, he
still faithfully performed his duty during the entire time he served as
its counsel.

In a Resolution^[11]
dated January 20, 2003, the Court referred this case to the Integrated
Bar of the Philippines (IBP) for investigation, report and
recommendation.

Report of the Investigating Commissioner

In her April 24, 2003 Report,^[12]
Investigating IBP Commissioner Milagros V. San Juan found respondent
guilty of violating the Code of Professional Responsibility.

According to Commissioner San Juan, respondent was not able to
justify his failure to file the brief. She explained that ‘if respondent
actually believed [that] it was futile to pursue [the appeal], why did
he request from the Court of Appeals numerous extensions of time to file
x x x the same within the given extension periods? Also, it should be
noted that respondent admits that after he advised NIT and herein
complainant [about] the futility of pursuing the appeal, the latter
expressed the wish to continue with [the appeal]. At the very least,
respondent should have given due importance to the decision of his
client to avail of a legal remedy available to it under the legal
system.’^[13]

She recommended that respondent be suspended from the practice
of law for a period of six months, with a warning that a harsher penalty
would be meted out for a similar infraction in the future.^[14]

Recommendation of the IBP Board of Governors

On June 21, 2003 , the Board of Governors of the IBP passed Resolution No. XV-2003-339^[15] adopting the Report and Recommendation of the investigating commissioner.’^[16]

The Court’s Ruling

We agree with the findings and recommendation of the IBP.

Administrative Liability of Respondent

The legal profession is invested with public trust.^[17] Its goal is to render public service and secure justice for those -who seek its aid.^[18]
Thus, the practice of law is considered a privilege, not a right,
bestowed by the State on those who show that they possess and continue
to possess the legal qualifications required for the conferment of such
privilege.^[19]

Verily, lawyers are expected to maintain at all times a high
standard of legal proficiency and of morality — which includes honesty,
integrity and fair dealing.^[20]
They must perform their four­ fold duty to society, the legal
profession, the courts and their clients in accordance with the values
and norms of the legal profession; as embodied in the Code of
Professional Responsibility. Any conduct found wanting in these
considerations, whether in their professional or private capacity, shall
subject them to disciplinary action. In the present case, the failure
of respondent to file the appellant’s brief was a clear violation of his
professional duty to his client.

The Code of Professional Responsibility mandates lawyers to serve their clients with compitence and diligence.^[21] Rules 18.03 and 18.04 specifically provide:

‘Rule 18.03 – A lawyer shall not neglect a
legal matter entrusted to him and his negligence in connection therewith
shall render him liable.

‘Rule 18.04 – A lawyer shall keep the client informed
of the status of his case and shall respond within a reasonable time to
the client’s request for information.’

It must be noted that respondent and complainant disagreed on
the legal course to be taken regarding the appealed case. The former
strongly advised the latter to abandon the appeal and to consider the
other available remedies. Complainant, on the other hand, wanted to
pursue it. Feeling that he was ‘unjustly adamant’ in wanting to do so,
respondent – contrary to the desire of the former – deemed it wise to
abandon the appeal without informing his client.

Not filing an appellant’s brief is prejudicial because, as
happened in this case, such failure could result in the dismissal of the
appeal.^[22] The conduct of
respondent shows that he failed to exercise due diligence, and that he
had a cavalier attitude towards the cause of his client. The abandonment
by the former of the latter’s cause made him unworthy of the trust that
his client reposed in him. Even if respondent was ‘honestly and
sincerely’ protecting the interests of complainant, the former still had
no right to waive the appeal without the latter’s knowledge and
consent. If indeed respondent felt unable or unwilling to continue his
retainership, he should have properly withdrawn his appearance and
allowed the client to appoint another lawyer.

Moreover, the appellate court noted that respondent failed to
file the appellant’s brief despite being granted several extensions of
time to file it. He therefore violated Rule 12.03 of the Code of
Professional Responsibility, which mandates that ‘[a] lawyer shall not,
after obtaining extensions of time to file pleadings, memoranda or
briefs, let the period lapse without submitting the same or offering an
explanation for his failure to do so.

We emphasize that all lawyers owe fidelity to their client’s cause.^[23]
Regardless of their personal views, they must present every remedy or
defense within the authority of the law in support of that cause.^[24] We have said in Ong v. Atty. Grijaldo.^[25]

‘Once [a lawyer] 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 9 s cause
with wholehearted fidelity, care, and devotion. [Otherwise 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 extension 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.’ ^[26]

WHEREFORE, Atty. Raul T. Montesino is found guilty of negligence and is hereby SUSPENDED from the practice of law for six months, effective upon receipt of this Decision. He is WARNED that a repetition of the same or a similar act will be dealt with more severely.

A copy of this Decision shall be entered in the record of.
respondent as attorney. Further, let copies of this Decision be served
on the IBP as well as on the court administrator, who is directed to
circulate these to all the courts in the country for their information
and guidance.

SO ORDERED.”

Copy of the decision was received by respondent on January 12, 2004, as shown by Registry Receipt No. 270.

__31__March 2004.

 ^[2] Id., p. 13.

 ^[3]Complaint, p. 5; rollo, p. 5.

 ^[4] Rollo,pp. 33-47.

 ^[5] See Annex “4” of respondent’s Comment; rollo, p. 67.

 ^[6] Comment, p. 8; id, p. 40

 ^[7] Ibid.

 ^[8] Id., pp, 9 & 41.

 ^[9] Id, pp. 8 & 40.

 ^[10] Id., pp. 9 & 41.

 ^[11] Rollo, p. 84.

 ^[12] Id., 119-131.

 ^[13] Report and Recommendation dated April 24,2003 , pp, 12-13; rollo, pp. 130-131.

 ^[14] Id., pp. 13 & 131.

 ^[15] Rollo, p.118.

 ^[16] Ibid.

 ^[17] People v. Santocildes Jr., 378 Phil. 943, December 21,1999; In the Matter of foe Petition for Anthony, to Continue Use of the Firm Name “Ozaeta, Romsdo, etc.” 91 SCEA 1, July 30, 1979 .

 ^[18] Docena v. Limon, 356 Phil. 570, September 10,1998.

 ^[19] Eustaquso v. Atfy. Rimorin, AC No. 5081, March24,2003; Sebastian v. Atty. Calis, 372 Phil September 9,1999; Arrieta v. Uosa, 346 Phil, 932, November 28, 1997.

 ^[20] Tapucar v. Atty. Tapucar, 355 Phil. 66 S July 30, 1998; Maligsa v. Atty. Cabanting, 388 Phil. 14,1997.

 ^[21] Cannon 18.

 ^[22] Torresv.Atty. Orden s 386Phil. 216, April 6, 2000

 ^[23] Canon 17 of the Code of Professional Responsibility.

 ^[24] Reontoy v. Atty. Ibad lit, 285 SCRA88, January 28, 1998 .

 ^[25]AC No. 4724, April 30,2003; citing Eamos v. Atty. Jacoba, 418 Phil. 346, September- 27, 2001.

 ^[26] Id.,p. 8, percuriam, J.; id, p. 351,perMendoza, J.