A.C. No. 6707 - GISELA HUYSSEN v. ATTY. FRED L. GUTIERREZ
[A.C. NO. 6707 : March 24, 2006]
GISELA HUYSSEN, Complainant, v. ATTY. FRED L. GUTIERREZ, Respondent.
D E C I S I O N
This treats of a Complaint1 for Disbarment filed by Gisela Huyssen against respondent Atty. Fred L. Gutierrez.
Complainant alleged that in 1995, while respondent was still connected with the Bureau of Immigration and Deportation (BID), she and her three sons, who are all American citizens, applied for Philippine Visas under Section 13[g] of the Immigration Law. Respondent told complainant that in order that their visa applications will be favorably acted upon by the BID they needed to deposit a certain sum of money for a period of one year which could be withdrawn after one year. Believing that the deposit was indeed required by law, complainant deposited with respondent on six different occasions from April 1995 to April 1996 the total amount of US$20,000. Respondent prepared receipts/vouchers as proofs that he received the amounts deposited by the complainant but refused to give her copies of official receipts despite her demands. After one year, complainant demanded from respondent the return of US$20,000 who assured her that said amount would be returned. When respondent failed to return the sum deposited, the World Mission for Jesus (of which complainant was a member) sent a demand letter to respondent for the immediate return of the money. In a letter dated 1 March 1999, respondent promised to release the amount not later than 9 March 1999. Failing to comply with his promise, the World Mission for Jesus sent another demand letter. In response thereto, respondent sent complainant a letter dated 19 March 1999 explaining the alleged reasons for the delay in the release of deposited amount. He enclosed two blank checks postdated to 6 April and 20 April 1999 and authorized complainant to fill in the amounts. When complainant deposited the postdated checks on their due dates, the same were dishonored because respondent had stopped payment on the same. Thereafter, respondent, in his letter to complainant dated 25 April 1999, explained the reasons for stopping payment on the checks, and gave complainant five postdated checks with the assurance that said checks would be honored. Complainant deposited the five postdated checks on their due dates but they were all dishonored for having been drawn against insufficient funds or payment thereon was ordered stopped by respondent. After respondent made several unfulfilled promises to return the deposited amount, complainant referred the matter to a lawyer who sent two demand letters to respondent. The demand letters remained unheeded.
Thus, a complaint2 for disbarment was filed by complainant in the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP).
On 15 November 2000, Victor C. Fernandez, Director for Bar Discipline, required3 respondent to submit his answer within 15 days from receipt thereof.
In his Counter-Affidavit dated 2 July 2001,4 respondent denied the allegations in the complaint claiming that having never physically received the money mentioned in the complaint, he could not have appropriated or pocketed the same. He said the amount was used as payment for services rendered for obtaining the permanent visas in the Philippines. Respondent explained thus:
a) Through a close-friend, Jovie Galaraga, a Pastor and likewise a friend of the complainant, the latter was introduced to me at my office at the Bureau of Immigration with a big problem concerning their stay in the Philippines, herself and three sons, one of which is already of major age while the two others were still minors then. Their problem was the fact that since they have been staying in the Philippines for almost ten (10) years as holders of missionary visas (9G) they could no longer extend their said status as under the law and related polic[i]es of the government, missionary visa holders could only remain as such for ten (10) years after which they could no longer extend their said status and have to leave the country.
b) Studying their case and being U.S. Citizen (sic), I advised them that they better secure a permanent visa under Section 3 of the Philippine Immigration Law otherwise known as Quota Visa and thereafter, provided them with list of the requirements in obtaining the said visa, one of which is that the applicant must have a $40,000 deposited in the bank. I also inform that her son Marcus Huyssen, who was already of major age, has to have the same amount of show money separate of her money as he would be issued separate visa, while her two minor children would be included as her dependents in her said visa application. I advised them to get a lawyer (sic), complainant further requested me to refer to her to a lawyer to work for their application, which I did and contacted the late Atty. Mendoza, an Immigration lawyer, to do the job for the complainant and her family.
c) The application was filed, processed and followed-up by the said Atty. Mendoza until the same was finished and the corresponding permanent visa were obtained by the complainant and her family. Her son Marcus Huyssen was given an independent permanent visa while the other two were made as dependents of the complainant. In between the processing of the papers and becoming very close to the complainant, I became the intermediary between complainant and their counsel so much that every amount that the latter would request for whatever purpose was coursed through me which request were then transmitted to the complainant and every amount of money given by the complainant to their counsel were coursed thru me which is the very reason why my signature appears in the vouchers attached in the complaint-affidavit;
d) That as time goes by, I noticed that the amount appeared to be huge for services of a lawyer that I myself began to wonder why and, to satisfy my curiosity, I met Atty. Mendoza and inquired from him regarding the matter and the following facts were revealed to me:
1) That what was used by the complainant as her show money from the bank is not really her money but money of World Mission for Jesus, which therefore is a serious violation of the Immigration Law as there was a misrepresentation. This fact was confirmed later when the said entity sent their demand letter to the undersigned affiant and which is attached to the complaint-affidavit;
2) That worst, the same amount used by the complainant, was the very same amount used by her son Marcus Huyssen, in obtaining his separate permanent visa. These acts of the complainant and her son could have been a ground for deportation and likewise constitute criminal offense under the Immigration Law and the Revised Penal Code. These could have been the possible reason why complainant was made to pay for quite huge amount.
e) That after they have secured their visas, complainant and her family became very close to undersigned and my family that I was even invited to their residence several times;
f) However after three years, complainant demanded the return of their money given and surprisingly they want to recover the same from me. By twist of fate, Atty. Mendoza is no longer around, he died sometime 1997;
g) That it is unfortunate that the real facts of the matter is now being hidden and that the amount of money is now being sought to be recovered from me;
h) That the fact is I signed the vouchers and being a lawyer I know the consequences of having signed the same and therefore I had to answer for it and pay. I tried to raised the fund needed but up to the present my standby loan application has not been released and was informed that the same would only be forthcoming second week of August. The same should have been released last March but was aborted due to prevalent condition. The amount to be paid, according to the complainant has now become doubled plus attorney's fees of
Complainant submitted her evidence on 4 September 2002 and April 2003, and filed her Formal Offer of Evidence on 25 August 2003.
On several occasions, the complaint was set for reception of respondent's evidence but the scheduled hearings (11 settings) were all reset at the instance of the respondent who was allegedly out of the country to attend to his client's needs. Reception of respondent's evidence was scheduled for the last time on 28 September 2004 and again respondent failed to appear, despite due notice and without just cause.
On 5 November 2004, Investigating Commissioner Milagros V. San Juan submitted her report5 recommending the disbarment of respondent. She justified her recommendation in this manner:
At the outset it should be noted that there is no question that respondent received the amount of US$20,000 from complainant, as respondent himself admitted that he signed the vouchers (Annexes A to F of complainant) showing his receipt of said amount from complainant. Respondent however claims that he did not appropriate the same for himself but that he delivered the said amount to a certain Atty. Mendoza. This defense raised by respondent is untenable considering the documentary evidence submitted by complainant. On record is the 1 March 1999 letter of respondent addressed to the World Mission for Jesus (Annex H of Complaint) where he stated thus:
"I really understand your feelings on the delay of the release of the deposit but I repeat, nobody really intended that the thing would happen that way. Many events were the causes of the said delay particularly the death of then Commissioner L. Verceles, whose sudden death prevented us the needed papers for the immediate release. It was only from compiling all on the first week of January this year, that all the said papers were recovered, hence, the process of the release just started though some important papers were already finished as early as the last quarter of last year. We are just going through the normal standard operating procedure and there is no day since January that I do not make any follow - ups on the progress of the same."
and his letter dated 19 March 1999 (Annex L of Complaint) where he stated thus:
"I am sending you my personal checks to cover the refund of the amount deposited by your good self in connection with the procurement of your permanent visa and that of your family. It might take some more time before the Bureau could release the refund as some other pertinent papers are being still compiled are being looked at the files of the late Commissioner Verceles, who approved your visa and who died of heart attack. Anyway, I am sure that everything would be fine later as all the documents needed are already intact. This is just a bureaucratic delay."
From the above letters, respondent makes it appear that the US$20,000 was officially deposited with the Bureau of Immigration and Deportation. However, if this is true, how come only Petty Cash Vouchers were issued by respondent to complainant to prove his receipt of the said sum and official receipts therefore were never issued by the said Bureau? Also, why would respondent issue his personal checks to cover the return of the money to complainant if said amount was really officially deposited with the Bureau of Immigration? All these actions of respondent point to the inescapable conclusion that respondent received the money from complainant and appropriated the same for his personal use. It should also be noted that respondent has failed to establish that the "late Atty. Mendoza" referred to in his Counter-Affidavit really exists. There is not one correspondence from Atty. Mendoza regarding the visa application of complainant and his family, and complainant has also testified that she never met this Atty. Mendoza referred to by respondent.
Considering that respondent was able to perpetrate the fraud by taking advantage of his position with the Board of Special Inquiry of the Bureau of Immigration and Deportation, makes it more reprehensible as it has caused damage to the reputation and integrity of said office. It is submitted that respondent has violated Rule 6.02 of Canon 6 of the Code of Professional Responsibility which reads:
"A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties."
On 4 November 2004, the IBP Board of Governors approved6 the Investigating Commissioner's report with modification, thus:
RESOLVED to ADOPT and APPROVE, as it hereby ADOPTED and APPROVED, with modification, 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, and considering respondent's violation of Rule 6.02 of Canon 6 of the Code of Professional Responsibility, Atty. Fred L. Gutierrez is hereby DISBARRED from the practice of law and ordered to return the amount with legal interest from receipt of the money until payment. This case shall be referred to the Office of the Ombudsman for prosecution for violation of Anti-Graft and Corrupt Practices Acts and to the Department of Justice for appropriate administrative action.
We agree with the IBP Board of Governors that respondent should be severely sanctioned.
We begin with the veritable fact that lawyers in government service in the discharge of their official task have more restrictions than lawyers in private practice. Want of moral integrity is to be more severely condemned in a lawyer who holds a responsible public office.7
It is undisputed that respondent admitted8 having received the US$20,000 from complainant as shown by his signatures in the petty cash vouchers9 and receipts10 he prepared, on the false representation that that it was needed in complainant's application for visa with the BID. Respondent denied he misappropriated the said amount and interposed the defense that he delivered it to a certain Atty. Mendoza who assisted complainant and children in their application for visa in the BID.11 Such defense remains unsubstantiated as he failed to submit evidence on the matter. While he claims that Atty. Mendoza already died, he did not present the death certificate of said Atty. Mendoza. Worse, the action of respondent in shifting the blame to someone who has been naturally silenced by fate, is not only impudent but downright ignominious. When the integrity of a member of the bar is challenged, it is not enough that he deny the charges against him; he must meet the issue and overcome the evidence against him.12 He must show proof that he still maintains that degree of morality and integrity which at all times is expected of him. In the case at bar, respondent clearly fell short of his duty. Records show that even though he was given the opportunity to answer the charges and controvert the evidence against him in a formal investigation, he failed, without any plausible reason, to appear several times whenever the case was set for reception of his evidence despite due notice.
The defense of denial proferred by respondent is, thus, not convincing. It is settled that denial is inherently a weak defense. To be believed, it must be buttressed by a strong evidence of non-culpability; otherwise, such denial is purely self-serving and is with nil evidentiary value.
When respondent issued the postdated checks as his moral obligation, he indirectly admitted the charge. Such admissions were also apparent in the following letters of respondent to complainant:
1) Letter13 dated 01 March 1992, pertinent portion of which reads:
Be that as it may, may I assure you for the last time that the said deposit is forthcoming, the latest of which is 09 March 1999. Should it not be released on said date, I understand to pay the same to you out of my personal money on said date. No more reasons and no more alibis. Send somebody here at the office on that day and the amount would be given to you wether (sic) from the Bureau or from my own personal money.
2) Letter14 dated 19 March 1999, reads in part:
I am sending you my personal checks to cover the refund of the amount deposited by your goodself in connection with the procurement of your permanent visa and that of your family.
It might take some more time before the Bureau could release the refund as some other pertinent papers are still being compiled and are being looked at the files of the late Commissioner Verceles, who approved your visa and who died of heart attack. Anyway, I am sure that everything would be fine later as all the documents needed are already intact. This is just a bureaucratic delay.
x x x
As you would see, I have to pay you in peso. I have issued you 2 checks, one dated April 6, 1999 and the other one dated April 20, 1999. I leave the amount vacant because I would want you to fill them up on their due dates the peso equivalent to $10,000 respectively. This is to be sure that the peso equivalent of your
P20,000 would be well exchanged. I have postdated them to enable me to raise some more pesos to cover the whole amount but don't worry as the Lord had already provided me the means.
3) Letter15 dated 25 April 1999 provides:
Anyway, let me apologize for all these troubles. You are aware that I have done my very best for the early return of your money but the return is becoming bleak as I was informed that there are still papers lacking. When I stopped the payment of the checks I issued, I was of the impression that everything is fine, but it is not. I guess it is time for me to accept the fact that I really have to personally return the money out of my own. The issue should stop at my end. This is the truth that I must face. It may hurt me financially but it would set me free from worries and anxieties.
I have arranged for a loan from money lenders and was able to secure one last Saturday the releases of which are on the following:
May 4, 1999 - 200,000
May 11, 1999 -200,000
May 20, 1999-200,000
June 4, 1999-200,000
I have given my property (lot situated in the province) as my collateral.
I am therefore putting an end to this trouble. I am issuing four checks which I assure you will be sufficiently funded on their due dates by reason of my aforestated loans. Just bear with me for the last time, if any of these checks, is returned, don't call me anymore. Just file the necessary action against me, I just had to put an end to this matter and look forward. x x x
4) Letter16 dated 12 May 1999, which reads:
The other day I deposited the amount of
P289,000 to the bank to cover the first check I issued. In fact I stopped all payments to all other checks that are becoming due to some of my creditors to give preference to the check I issued to you.
This morning when I went to the Bank, I learned that the bank instead of returning the other checks I requested for stop payment - instead honored them and mistakenly returned your check. This was a very big surprise to me and discouragement for I know it would really upset you.
In view of this I thought of sending you the amount of
P200,000 in cash which I initially plan to withdraw from the Bank. However, I could not entrust the same amount to the bearer nor can I bring the same to your place considering that its quite a big amount. I am just sending a check for you to immediately deposit today and I was assured by the bank that it would be honored this time.
Normally, this is not the actuation of one who is falsely accused of appropriating the money of another. As correctly observed by the Investigating Commissioner, respondent would not have issued his personal checks if said amount were officially deposited with the BID. This is an admission of misconduct.
Respondent's act of asking money from complainant in consideration of the latter's pending application for visas is violative of Rule 1.0117 of the Code of Professional Responsibility, which prohibits members of the Bar from engaging or participating in any unlawful, dishonest, or deceitful acts. Moreover, said acts constitute a breach of Rule 6.0218 of the Code which bars lawyers in government service from promoting their private interest. Promotion of private interest includes soliciting gifts or anything of monetary value in any transaction requiring the approval of his office or which may be affected by the functions of his office.19 Respondent's conduct in office betrays the integrity and good moral character required from all lawyers, especially from one occupying a high public office. A lawyer in public office is expected not only to refrain from any act or omission which might tend to lessen the trust and confidence of the citizenry in government; he must also uphold the dignity of the legal profession at all times and observe a high standard of honesty and fair dealing. Otherwise said, a lawyer in government service is a keeper of the public faith and is burdened with high degree of social responsibility, perhaps higher than his brethren in private practice.
In a desperate attempt to put up a smoke or to camouflage his misdeed, he went on committing another by issuing several worthless checks, thereby compounding his case.
In a recent case, we have held that the issuance of worthless checks constitutes gross misconduct,20 as the effect "transcends the private interests of the parties directly involved in the transaction and touches the interests of the community at large. The mischief it creates is not only a wrong to the payee or holder, but also an injury to the public since the circulation of valueless commercial papers can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and the public interest. Thus, paraphrasing Black's definition, a drawer who issues an unfunded check deliberately reneges on his private duties he owes his fellow men or society in a manner contrary to accepted and customary rule of right and duty, justice, honesty or good morals."21
Consequently, we have held that the act of a person in issuing a check knowing at the time of the issuance that he or she does not have sufficient funds in, or credit with, the drawee bank for the payment of the check in full upon its presentment, is also a manifestation of moral turpitude.22
Respondent's acts are more despicable. Not only did he misappropriate the money of complainant; worse, he had the gall to prepare receipts with the letterhead of the BID and issued checks to cover up his misdeeds. Clearly, he does not deserve to continue, being a member of the bar.
Time and again, we have declared that the practice of law is a noble profession. It is a special privilege bestowed only upon those who are competent intellectually, academically and morally. A lawyer must at all times conduct himself, especially in his dealings with his clients and the public at large, with honesty and integrity in a manner beyond reproach. He must faithfully perform his duties to society, to the bar, to the courts and to his clients. A violation of the high standards of the legal profession subjects the lawyer to administrative sanctions which includes suspension and disbarment.23 More importantly, possession of good moral character must be continuous as a requirement to the enjoyment of the privilege of law practice; otherwise, the loss thereof is a ground for the revocation of such privilege.24
Indeed, the primary objective of administrative cases against lawyers is not only to punish and discipline the erring individual lawyers but also to safeguard the administration of justice by protecting the courts and the public from the misconduct of lawyers, and to remove from the legal profession persons whose utter disregard of their lawyer's oath have proven them unfit to continue discharging the trust reposed in them as members of the bar.25 These pronouncement gain practical significance in the case at bar considering that respondent was a former member of the Board of Special Inquiry of the BID. It bears stressing also that government lawyers who are public servants owe fidelity to the public service, a public trust. As such, government lawyers should be more sensitive to their professional obligations as their disreputable conduct is more likely to be magnified in the public eye.26
As a lawyer, who was also a public officer, respondent miserably failed to cope with the strict demands and high standards of the legal profession.
Section 27, Rule 138 of the Revised Rules of Court mandates that a lawyer may be disbarred or suspended by this Court for any of the following acts: (1) deceit; (2) malpractice; (3) gross misconduct in office; (4) grossly immoral conduct; (5) conviction of a crime involving moral turpitude; (6) violation of the lawyer's oath; (7) willful disobedience of any lawful order of a superior court; and (8) willfully appearing as an attorney for a party without authority to do so.27
In Atty. Vitriolo v. Atty. Dasig,28 we ordered the disbarment of a lawyer who, during her tenure as OIC, Legal Services, Commission on Higher Education, demanded sums of money as consideration for the approval of applications and requests awaiting action by her office. In Lim v. Barcelona,29 we also disbarred a senior lawyer of the National Labor Relations Commission, who was caught by the National Bureau of Investigation in the act of receiving and counting money extorted from a certain person.
Respondent's acts constitute gross misconduct; and consistent with the need to maintain the high standards of the Bar and thus preserve the faith of the public in the legal profession, respondent deserves the ultimate penalty of expulsion from the esteemed brotherhood of lawyers.30
WHEREFORE, Atty. Fred L. Gutierrez is hereby DISBARRED from the practice of law and ordered to return the amount he received from the complainant with legal interest from his receipt of the money until payment. This case shall be referred to the Office of the Ombudsman for criminal prosecution for violation of Anti-Graft and Corrupt Practices Acts and to the Department of Justice for appropriate administrative action. Let copies of this Decision be furnished the Bar Confidant to be spread on the records of the respondent; the Integrated Bar of the Philippines for distribution to all its chapters; and the Office of the Court Administrator for dissemination to all courts throughout the country.
* On official leave.
1 Rollo, pp. 1-5.
2 Id., pp. 1-5.
3 Id., p. 23.
4 Id., pp. 31-34.
5 Id., pp. 293-300.
6 Id., p. 292.
7 Macoco v. Diaz, 70 Phil. 97, 98 (1940).
8 Rollo, pp. 32-34, Respondent's counter-affidavit.
9 Id., pp. 6-8, Annexes "A", "B", "C", "D", and "E".
10 Id., pp. 9-10, Annexes "E" and "F".
11 Id., p. 33.
12 Heck v. Santos, A.M. No. RTJ-01-1657, 23 February 2004, 423 SCRA 329, 348; Reyes v. Gaa, 316 Phil. 97, 101 (1995).
13 Rollo, p. 12.
14 Id., pp. 100-103.
15 Id., pp. 106-108.
16 Id., pp. 118-121.
17 Rule 1.01. - A lawyer shall not engage in unlawful, dishonest, immoral, and deceitful conduct.
18 Rule 6.02. - A lawyer in the government service shall not use his public position to promote or advance his private interest, nor allow the latter to interfere with his public duties.
19 Atty. Vitriolo v. Atty. Dasig, 48 Phil. 199, 209 (2003).
20 Lao v. Medel, 453 Phil. 115, 121 (2003).
21 Villaber v. Commission on Elections, 420 Phil. 930, 939-940 (2001).
22 Moreno v. Araneta, A.C. No. 1109, 27 April 2005, 457 SCRA 329, 337.
23 Re: Administrative Case Against Atty. Occena, 433 Phil. 138, 156 (2002).
24 Ui v. Atty. Bonifacio, 388 Phil 691, 705 (2000).
25 Rivera v. Atty. Corral, 433 Phil. 331, 340 (2002).
26 Igoy v. Atty. Soriano, 419 Phil. 346, 359 (2001).
27 Hernandez v. Go, A.C. No. 1526, 31 January 2005, 450 SCRA 1, 10.
28 Supra note 19, pp. 207-208.
29 A.C. No. 5438, 10 March 2004, 425 SCRA 67, 75.
30 Hernandez v. Go, supra note 27, p. 11.
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