OCA CIRCULAR NO. 43-2005, April 22, 2005

For the information and guidance of all concerned,
quoted hereunder is the Decision of the First Division dated February
18, 2005 in Administrative Case No. 5302, entitled “Marcial L. Abiero
vs. Atty. Bernardo G. Juanino”, to wit:

“A lawyer owes fidelity to the cause of
his client at all times, mindful of the trust and confidence reposed in
him. Fie must always serve with competence and diligence, and never
neglect a legal matter entrusted to him. An attorney should endeavor to
keep his client informed of the status of his case and respond within a
reasonable time to the latter’s request for information. Failure to
comply with these abiding precepts of ethical conduct renders counsel
liable for violating the canons of his profession.

On July 20, 2000, an administrative complaint^[1]
was filed by Marcial L. Abiero charging respondent Atty. Bernardo G.
Juanino with negligence in connection with a legal matter entrusted to
him.

It appears that complainant engaged the services of respondent of the law firm P.C. TNolasco and Associates as counsel de parte in NLRC NCR OCW Case No. 00-12-00904-95.^[2]
On January 29, 1998, Labor Arbiter Eduardo J. Carpio ruled in favor of
complainant by ordering the respondents to pay complainant his unpaid
wages and unpaid vacation leave pay, to refund his plane fare and to pay
moral damages and attorney’s fees.^[3]

On appeal, the National Labor Relations Commission reversed the arbiter’s decision and dismissed the case for lack of basis.^[4]

For several times, complainant, either personally
or through his designated agents, tried to follow up the status of the
case. Each time, respondent would advise him to call on a later date at
which time he may have some news for any development with the case.^[5]

Respondent filed with the Court of Appeals a
motion for extension of time to file a petition for review and paid the
corresponding docket fee.

When complainant verified with the Court of
Appeals the status of the case, he found out that respondent never filed
a Petition for Review of his labor case. Consequently, the NLRC
decision became final and executory. Thus, complainant filed this
administrative complaint against respondent.

On August 30, 2000 , respondent was required to file his comment within 10 days from notice.^[6] On September 25, 2000 , respondent requested for additional time to file comment.^[7]
Subsequently, respondent filed a series of motions for extension to
file comment. On February 28, 2001, respondent was warned that no
further extension shall be granted.^[8] Notwithstanding, and despite 11 extensions, respondent still failed to file his comment.

Consequently, on July 29, 2002 , respondent was
required to show cause why he should not be disciplinary dealt with or
held in contempt for failure to comply with our directives.^[9]

On September 2, 2002 , respondent filed his Compliance with Motion for Final Twelve (12) Day Extension With No Further Extension..^[10]

Finally, on September 17, 2002, respondent filed his comment^[11] together with a Motion to Admit Comment Filed One Day Late.

In a Resolution dated October 21, 2002 , respondent’s Motion to Admit Comment filed One Day Late was referred to the Integrated Bar of the Philippines for investigation, report and recommendation.^[12]

As summarized, respondent alleged by way of defense, the following:

(1) that complainant became respondent’s
client after respondent handled these cases for complainant’s uncle
Aniceto Encio and his family namely Criminal Case No. F-10088, POEA Case
No. M-91-06-602, I.S. No. 93 E- 17909 and POEA Case No. L-93-04-610;
that respondent successfully handled these cases which led to the
dismissal of the criminal case against Aniceto Encio and recovery of
monetary awards in the other cases; (2) that NLRC NCR OCW Case No.
00-12-00904-95 was referred by Aniceto Encio to respondent for handling;
that herein complainant and Aniceto Encio requested’ respondent not to
charge them an acceptance fee for said case and instead
offered to pay respondent 30% of any monetary award recovered in said
case; … that on appeal to the National Labor Relations Commission, the
Decision of Labor Arbiter Carpio was reversed and NliRC OCW Case No.
00-12-00904-95 was dismissed by the NLRC for lack of merit; … (4) that
at the time respondent advanced the docket fees, complainant and
respondent did not have any agreement that a Petition for Certiorari
would be filed with the Court of Appeals; … (5) that weeks later, when
complainant reimbursed respondent for the docket fees he had advanced,
respondent advised complainant and his uncle that respondent intended to
appeal |the Decision of the NLRC to the Court of Appeals and so he
filed a Petition for Extension of Time to File Petition …; (7j) that
there was an error in judgment on respondent’s part when instead of
filing a Petition for Certiorari as originally intended, respondent
chose to pursue another course of action, that of entertaining the idea
of filing a Motion [or Execution to enforce the Labor Arboter’s Decision against the other respondents who did not appeal said Decision; (8)
that respondent pleads good faith in the subsequent course of action
taken; that respondent entertained the idea that he could enforce the
original Decision through a Motion for Execution; … (9) that
respondent tried his best to win complainant’s labor case and in fact,
he won it at the Labor Arbiter’s level; (10) that respondent appeals to
the sense of fairness of complainant; that in the 4 cases respondent
handled for complainant and his uncle, respondent won 3 cases for them
especially the criminal complaint for Homicide against complainant’s
uncle; that in said criminal case, respondent did not charge a single
centavo for attorney’s fees.^[13]

In his letter-reply filed on February averred the following statements originally in the vernacular:

… it is not true that there was no because
complainant paid respondent P1.500 plus the amount of P500 per receipts
were issued for these payments; truth to respondent’s allegation that
complainant was in the truth to respondent’s allegation that the
complaint was in the province because complaint’s uncle called
respondent 3 times a week to follow-up the Petition for, Review; that it
was actually complainant who paid for the docket fees but respondent
who physically paid the same to the Court of Appeals; and that
respondent made several promises to complainant’s uncle regarding the
status of the Petition for Review but nothing came out of said promises.^[14]

The lone issue for resolution is whether respondent violated Canons 17 and 18 of the Code of Professional Responsibility.

In its Report and Recommendation, the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP),^[15]
held that there was no sufficient justification for respondent’s
failure to file the petition for review with the Court of Appeals. It
found that respondent was aware of the period for filing said petition
because he himself paid the docket fees and filed the Motion for Extension of Time to File the Petition for Review.
His claim that he was pursuing another legal remedy in the labor case
did not justify his failure to file the petition for review within the
prescribed period. Complainant had placed his trust in respondent to
handle his claims against his previous employer. Failure to comply with
his legal duty as counsel of complainant in NLRC NCR OCW Case No. 00-12-
00904-95 has caused damage and prejudice to the latter. Thus, in
failing to file the petition for review, respondent was held to have
breached Canons 17 and 18 of the Code of Professional Responsibility.
The Commission on Bar of IBP recommended that respondent be suspended
from the practice of law for a period of six (6) months.^[16]

The Board of Governors of the In Philippines, adopted the Report and Recommendation Investigating Commissioner, thus:

above-entitled case, herein made
Resolution/Decision as Annex “A”; ar recommendation fully supported by
the evidence on record and the applicable laws and rules, and
considering respondent’s violation of Canons 17 & 18 of the Code of
Professional Responsibility by failing to file! the Petition for
Certiorari, Atty. Bernardo G. Juanino is hereby SUSPENDED from the
practice of law for six (6) months.^[17]

We agree with the feelings of the IBP Investigating Commissioner.

The lawyer has the duty to exert his best judgment in
the prosecution of defense of the case entrusted to him and to
exercise reasonable and ordinary care and diligence in the pursuit or
defense of the case.^[18] By his own admission, respondent entertained the idea of filing a motion for execution, thus:

I honestly believed then that since the
other respondents did not appeal the Decision to the Commission of the
NLRC, I could enforce the Decision (See THIRD REASON) against these
other respondents who did not appeal. So undersigned went to Honorable
Labor Arbiter Eduardo J. Carpio and explained to him about my plan to
file a Motion for Execution against the other respondents who did not
appeal the Decision to the Commission of the NLRC. I was not able to see
him the first two times that I went as I was informed he was assigned
to certain task force and when I saw him the third time, Honorable Labor
Arbiter Eduardo J. Carpio informed me that since decision was reversed
on appeal and the complaint dismissed, there would be no basis for
filing a Motion for Execution to enforce Decision. I was dumbfounded as
the period to file a Petition for Certiorari already expired.^[19]

As a lawyer, respondent should know that he is not
required to seek prior approval from the labor arbiter before he could
file a motion for execution. Notwithstanding, he presented himself, not
once, but thrice, before the office of the arbiter to discuss his plan
to file a motion for execution, only to discover that such resource was
not feasible. Worse, while respondent was waiting for the arbiter’s
opinion, the period to file the petition before the Court of
Appeal scontinued to run, as in fact, it eventually expired.

Failure to appeal to the Court of Appeals despite
instructions by the client to do so constitutes inexcusable negligence
on the part of the counsel. Once a lawyer consents to defend the cause
of his client, he owes fidelity to such caused and must at all times be
mindful of the trust and confidence reposed in him. He is bound to
protect his client’s interest to the best of his ability and perform his
duties to his client with utmost diligence. Nothing less can be
expected from a member of the Philippine Bar. For having neglected a
legal matter entrusted to him by his client, respondent did not serve
his client with diligence and competence. His inexcusable negligence on
such matter renders him liable for violation of Canons 17 and 18 of the
Code of Professional Responsibility.^[20]

As we held in the recent case of Barbuco v. Beltran,^[21]
an attorney is bound to protest his client’s interest to the best of
his ability and with utmost diligence. Thus, failure to file brief for
his client certainly constitutes inexcusable negligence on his part,
especially if such failure took the form of filling a pleading after the
deadline for filing the same has passed. Respondent has indeed
committed a serious lapse in judgment in failing to perform his
professional duty to his client under the canons of his profession.

The failure to timely file a pleading is by itself a
sin of omission on the part of the respondent. However, complaint’s travails were further compounded by the failure of the respondent to
maintain an open line communication with his client in direct
contravention of Cannon 18, Rule 18.04 of the Code of Professional
Responsibility which requires a lawyer to keep his client informed of
the status of his case and respond within a reasonable time to the
client’s request for information.^[22]

In Legarda v. Court of Appeals,^[23] counsel’s
failure to exercise due diligence in protecting the interest of his
client caused the latter material prejudice. The moment counsel takes a
client’s cause, he covenants that he will exert all effort for its prosecution until its final resolution. A lawyer who fails to exercise
due diligence or abandon’s his client’s cause makes him unworthy of the
trust reposed on him by the latter; he owes fealty, not only to his
client, but also to the Court of which he is an officer.^[24]

We observed in Pariñas v. Atty. Paguinto^[25]
that a lawyer should give adequate attention, care and time to his
client’s case. Once he agrees to handle a case, he should undertake the
task with dedication and care. If he fails in this duty, he is not true
to his oath as a lawyer. Thus, a lawyer should accept only as much cases
as he can efficiently handle in order to sufficiently protect his
clients’ interest. It is not enough that a lawyer possesses the
qualification to handle the legal matter’; he must also give adequate
attention to his legal work. Utmost fidelity is demanded once counsel
agrees to take the cudgels for his client’s cause.

In Barbuco v. Atty. Beltran, Guiang v. Atty. Antonio,^[26] and Sps. Villaluz v. Judge Armenta,^[27]
the Court suspended counsel for six months upon a finding that their
failure to perfect an appeal was inexcusable and persuasively
demonstrative of negligence and malpractice, a violation of Rule 18.03
of Code of Professional Responsibility which declares that “a lawyer
shall not neglect a legal matter entrusted to him and his negligence in
connection therewith shall render him liable.”

We cannot overstate the duty of a lawyer to uphold
the integrity and dignity of the legal profession at all times. He can
do this do faithfully performing his duties to society, to the bar, to
the courts and to his clients.^[28]

Incidentally, we note that respondent delayed the
filing of the comment for more than two (2) years. Despite numerous
extensions, which were all granted, still, he filed the comment one (1)
day late. By neglecting his duties to his client and to this Court,
respondent transgressed the canons of legal ethics enshrined in the Code
of Professional Responsibility. Such misconduct should not be
countenanced.

WHEREFORE, in view of the foregoing, respondent Atty. Bernardo G. Juanino is found guilty of negligence and is SUSPENDED from the practice of law for six (6) months effective upon receipt of this Decision, with a WARNING that a repitition of the same or similar acts will be dealt with more severely.

Let a copy of this Decision be furnished to the
Office of the Bar Confidant, the Integrated Bar of the Philippines, and
all courts in the Philippines, for their information and guidance.

SO ORDERED.”

Copy of the Decision was received by the received by the respondent on March 30, 2005 as shown by Registry No. 31307.

__22__ April 2005.

^[2] Marcial O. Abiero v. Diamond-H Marine Services and Shipping Agency, Inc. et al.

^[3] Rollo, p. 48.

^[4] Id., p 65.

^[5] Id., p 1.

^[6] Id., p 67.

^[7] Id., p 68.

^[8] Id., p 85.

^[9] Id., p 145.

^[10] Id., p 147.

^[11] Id., p 150-154.

^[12] Id., p 163.

^[13] Report and
Recommendation of the Commission on Bar Discipline, Integrated Bar of
the Philippines , pp. 2-5. IBP Investigating Commissioner is Milagros V.
San Juan.

^[14] Id., pp. 5-6.

^[15] Id., pp. 6-7.

^[16] Id.

^[17] Resolution No. XV-2003-337, Adm. Case No. 5302, Marcial L. Abierro v. Atty. Bernardo G. Juanino, 21 June 2003.

^[18] Pariñas v. Atty. Paguinto, A.C. No. 6297, 13 July 2004 , pp. 6-7.

^[19] Comment, p. 4; Rollo, p. 153.

^[20] Canon 17 of the Code
of Professional Responsibility provides that “[a] lawyer owes fidelity
to the cause of his client and he shall be mindful and confidence
respond him.” Canon 18 states the “[a] lawyer shall serve his client
with competence and diligence.” Specifically, Canon 18, Rule 18.03
provides that “[a] lawyer shall not neglect a legal matter entrusted to
him, and his negligence in connection therewith shall render him
liable.”

^[21] A.C. No. 5092, 11 August 2004 , p. 4.

^[22] Id.

^[23]G.R. No. 94457, 10 June 1992 , 209 SCRA 722, 730-731.

^[24] Id.

^[25] A.C. No. 6297, 13 July 2004 , p. 7.

^[26] A.C. No. 2473, 3 February 1993 , 218 SCRA 381, 384.

^[27] 348 Phil. 776, 784(1998).

^[28] Reyes v. Atty. Javier, 426 Phil. 243, 248 (2002).