OCA CIRCULAR NO. 174-2003, November 28, 2003

For the information and guidance of all concerned, quoted hereunder is the
Decision of the Third Division of the Supreme Court dated July 14, 2003 in Adm.
Case No. 4078, to wit:

In this complaint for disbarment filed by William. Ong Genato against
respondent Atty. Essex L. Silapan, complainant alleged that in July 1992,
respondent asked if he could rent a small office space in complainant’s
building in Quezon City for ins law practice. Compliant acceded and introduced
respondent to Atty. Benjamin Dacanay, complainant’s retained lawyer, who
accommodated respondent in the building and, made him handle some of
complainant’s cases. Hence, the start of the legal relationship between
complainant and respondent.

The conflict between the parties started when respondent borrowed two hundred
thousand pesos (P200,000.00) from: . complainant which he intended to use as
downpayment for the . purchase of a new car. In return, respondent issued to
complainant a postdated check in the amount of P 176,528.00 to answer for the
six (6) months interest on the loan. He likewise mortgaged to complainant Ids
house and lot in Quezon City but did not surrender its title claiming that it
was the subject of reconstitution proceedings before the Quezon City Register of
Deeds.

With the money borrowed from, complainant, respondent-purchased a new car.
However, the document of sale of the car was issued in complainant’s name and
financed through City Trust Company.

In January 1993, respondent introduced to complainant a certain Emmanuel
Romero. Romero likewise wanted to borrow money from complainant. Complainant
lent Romero the money and, from this transaction, respondent earned commission
in the amount of P52.289.90. Complainant used the commission to pay respondent’s
arrears with the car financing firm.

Subsequently, respondent, failed to pay the authorization on the car and the
financing firm sent demand letters to complainant. Complainant tried to encash
respondent’s postdated check with the drawee bank but it was dishonored as
respondent’s account therein was already closed.

Respondent failed to heed complainant’s repeated demands for payment.
Complainant then filed a criminal case against respondent for violation of Batas
Parabansa Big. 22 and a civil case for judicial foreclosure of real estate
mortgage.

In the foreclosure case respondent made the following allegation in his
Answer.

xxx

xxx

xxx

4. That complainant is a businessman who is engaged in the real estate
   business, trading and buy and sell of deficiency taxed imported cars, shark
   loans and other shady deals and has many cases pending in court;

xxx

xxx

xxx

Complainant denied respondent’s charges and claimed – that respondent’s
allegation is libelous and not privilege as it was irrelevant, to the
foreclosure case. Complainant, further pointed to paragraph 12 of respondent’s
Answer, thus:

12. Thai on January 29, 1993, before paying for the next installment on his car
    on January 30, 1993, defendant Essex L. Silapan asked the complainant to execute
    a Deed of Sale transferring ownership of the car to him but the latter said that
    he will only do so after the termination of his criminal case at Branch 138 of
    the Regional Trial Court of Makati, Metro Manila x x x where he (complainant)
    wanted Essex L. Silapan, his former counsel in that case, to offer bribe money
    to the members of the review committee of the Department of Justice where a
    petition for review of the resolution of the Investigating Prosecutor was
    pending at the time, x x x or, in the event that the said petition for review is
    denied, he wanted Essex L Silapan to offer bribe money to the prosecutor
    assigned at the above-mentioned . Court, and even to the presiding Judge, for
    his eventual acquittal, which defendant Essex L. Silapan aU refused to do not
    only because such acts are immoral and illegal, but also because the complainant
    confided to him that he was really involved in the commission of the crime that
    was charged of in the above-mentioned case, (emphasis supplied)

Complainant gripes that the foregoing allegations are false, immaterial to
the foreclosure case and maliciously designed to defame him. He charged that in
making such allegations, respondent is guilt of breaking their confidential
lawyer-client relationship and should be held administratively liable therefor:
Consequently, he filed this complaint for disbarment, praying also that an
administrative sanction be meted against respondent for his issuance of a
bouncing check.

When required by the Court to comment, respondent explained^[1] that it was complainant who offered him an
office space in his building and retained him as counsel as the latter was
impressed with the way he handled a B.P. 22 case ^[2] filed against complainant. Respondent
insisted that there was nothing libelous in his imputations of dishonest
business practices to complainant and his revelation of complainant’s desire to
bribe government officials in relation to his pending criminal case. He claimed
t6 have made these statements in the course of judicial proceedings to defend
his case and discredit complainant’s credibility by establishing his criminal
propensity to commit fraud, tell lies and violate laws. He argued that he is not
guilty of breaking his confidential lawyer-client, relationship with complainant
as he made the disclosure in defense of his honor and reputation.

Secondly, respondent asserted that he executed the real estate mortgage in
favor of complainant without consideration and only as a “formal requirement” so
he could obtain the P200,000.00 loan and for this reason, he did not surrender
his title over the mortgaged property to complainant.

Thirdly, respondent
claimed that he issued the postdated check, not for account or for value, but
only: (a) to serve as “some kind of acknowledgment” that he already received in
advance a portion of his attorney’s fees from the complainant for the legal
services he rendered, and (b) as a form of assurance that he will not abandon
the cases he was handling for complainant.

Lastly, respondent denied that he received a P52,289.90 commission from
Romero’s loan which he allegedly helped facilitate. He alleged that the amount
was paid to him by Romero as attorney’s fees, the latter being his client. He
used this amount to pay his arrears with the car financing firm. On January 29,
1993, before paying the next amortization on the car, he asked complainant to
execute a deed of sale transferring ownership of the car to him. Complainant
refused and insisted that he would transfer ownership of the car only after the
termination of his criminal case which respondent was handling as his defense
lawyer. Consequently, respondent stopped paying the amortization on the car.
Respondent also alleged that he filed a perjury case against complainant who, in
turn, filed a complaint for libel against him

In a Resolution, dated October 27, 1993, the Court referred the
administrative case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.

On August 3, 2002, the Board of Governors of the IBP approved the report of
the investigating commissioner finding the respondent guilty as charged and
recommending his suspension from the practice of law for one (1) year.

We affirm the findings and recommendation of the IBP.

Prefatorily, we stress that we shall not delve into the merits of the various
qprninal and civil cases pending between the parties. It is for the trial courts
handling these cases to ascertain the truth or falsity of the allegations made
therein. For this reason, it is not for us to sanction respondent for his
issuance of a bouncing check. His liability has yet to be determined by the
trial court where his case is pending.

The only issue in this administrative case is whether respondent committed a
breach of trust and confidence by imputing to complainant illegal practices and
disclosing complainant’s alleged intention to bribe government officials in
connection with a pending case.

Canon 17 of the Code of Professional Responsibility provides that a lawyer
owes fidelity to the cause of his client and shall be mindful of the trust and
confidence reposed on him. The long-established rule is that an attorney is not
permitted to disclose communications made to him in his professional character
by a client, unless the latter consents. This obligation to preserve the
confidences and secrets of a client arises at the inception of their
relationship^.[3] The protection given to
the client is perpetual and does not cease with the termination of the
litigation, nor is it affected by the party’s ceasing to employ the attorney and
retaining another, or by any other change of relation between them. It even
survives the death of the client.^[4]

It must be stressed, however, that the privilege against disclosure of
confidential communication or information is limited only to communications
which are legitimately and properly within the scope of a lawful employment of a
lawyer. It does not extend to those made in contemplation of a crime or
perpetration of a fraud.^[5] If the
unlawful purpose is avowed, as in this case, the complainant’s alleged intention
to bribe government officials in relation to his case, the communication is not
covered by the privilege as the client does not consult the lawyer
professionally. It is not within the profession of a lawyer to advise a client
as to how he may commit a crime as a lawyer is not a gun for hire. Thus, the
attorney-client privilege does not attach, there being no professional
employment in the strict sense.

Be that as it may, respondent’s explanation that it was necessary for him to
make the disclosures in his pleadings fails to satisfy us. The disclosures were
not indispensable to protect his rights as they were not pertinent, to the
foreclosure case. It was improper’ for the respondent to use it against the
complainant in the foreclosure case as it was not the-subject matter of
litigation therein and respondent’s professional competence and legal advice
were not being attacked in said case A lawyer must conduct himself, especially
in his dealings with his clients, with integrity in a manner that is beyond
reproach. His relationship with his clients should be characterized by the
highest degree of good faith and fairness.

Thus, this Court agrees with the evaluation of the IBP and finds that
respondent’s allegation and disclosures in the foreclosure case amount to a
breach of fidelity sufficient to warrant the imposition of disciplinary sanction
against him. However, the recommended penalty of one (1) year suspension of
respondent from the practice of law seems to be disproportionate to his breach
of duty considering that a review of the records of this Court reveals that this
is the first administrative complaint against him.

IN VIEW WHEREOF, respondent Atty. Essex L. Silapan is ordered suspended from
the practice of law for a period of six (6) months effective upon receipt of
this Decision, x x x.

The Decision was served upon respondent on July 14, 2003.

____ November 2003.

^[2] It was allegedly in this case that
the complaint committed to respondent heis desire to briebe the members of the
review committee of the Department of Justice where the case was pending
evaluation and eventually also the prosecutor and judge who would handle the
casw when filed in court.

^[3] Hoyas vs. State (Fla App D3) 456
So 2d 1225, 9 FLW 1993

^[4] Schwimmer vs. United States (Ca8
mo) 232 F2d 855, 353 US 833, 1 L Ed 2d 52, 77 S Ct 48

^[5] People vs. Van Alshine,23 NW 594
(1885), Regala vs. Sandiganbayan, 262 SCRA 122 (1990).