BaguioEN
BANC
ABDUL
A. SATTAR,
Complainant,
A.
C.
No. 1370
April
18, 1997
-versus-
ATTY.
PERCIVAL
LOPEZ,
Respondent.
R
E S O L U
T I O N
KAPUNAN,
J.:
Abdul A. Sattar filed on
September 24, 1974 an administrative case against lawyer Percival Lopez.
[1] Respondent
is now a regional trial court judge in Quezon City. He was first
appointed
to the judiciary as municipal trial court judge in April 1983.
Complainant charged
respondent with having failed to file an appeal brief with the Court of
Appeals resulting in the dismissal of complainant's appeal from a
conviction
by the trial court in a criminal case.Complainant
alleged that on November 16, 1973, he agreed to give to respondent the
following amounts in consideration of respondent's preparing and filing
an appeal brief in the Court of Appeals: P200 as retaining fee; P1,500
for printing expenses; and P1,500 in the event of complainant's
acquittal
by the appellate court. Complainant further alleged that he was asked
by
respondent to buy two bottles of liquor to be given to a Court of
Appeals
employee who would facilitate respondent's research, but that when he
could
not find the specified brand of liquor, respondent asked for P120
instead.[2]
On October 28, 1974,
respondent filed his answer alleging inter alia that: his
acceptance
of the case was predicated on the express promise of complainant to
furnish
him with the complete records of the case for the preparation of the
brief,
but that complainant failed to do so; respondent himself could not get
the records as these were with the Solicitor General from September 7,
1973 to August 24, 1974; at the time respondent was contracted by
complainant
on November 16, 1973 to prepare the appeal brief, he was not informed
that
the appeal had already been dismissed on November 9, 1973; complainant
informed him of such dismissal only on January 28, 1974; the amount of
P120 was given to him voluntarily by complainant for expenses in
exploring
the revival or reinstatement of the appeal; respondent promptly
informed
complainant of the futility of a revival or reinstatement of the appeal
considering that the cause of the dismissal was the very negligence of
complainant.[3]
In a Resolution dated
November 15, 1974, the Court referred the case to the Solicitor General
for investigation, report and recommendation.[4]
Upon the effectivity of Rule 139-B of the Revised Rules of Court on
June
1, 1988, the case was transferred to the Integrated Bar of the
Philippines
(IBP) for disposition.Roughly
twenty years from the filing of the case, on March 15, 1993, the IBP
Commission
on Discipline, through Commissioner Vicente Q. Roxas, rendered a report
(Commissioner's Report) recommending the suspension of respondent from
the practice of law for a period of three months. The IBP Board of
Governors,
in its Resolution No. 01-94-067 resolved to adopt and approve the
Commissioner's
Report.cralaw:red
The conclusions of the
Investigating Commissioner are as follows:
Complainant did not
hire any counsel to follow up the dismissal of his appeal which fact he
was informed of. In fact complainant testified on January 30,
1975
that while he was given leave from Muntinlupa Prison were he was
serving
sentence (TSN, Sattar, January 30, 1975, page 5)
he
was informed that his appeal of his conviction has been dismissed:
"The appeal has been
dismissed but prior to that or one week after the contract was made,
because
it was our agreement that I will secure some of the stenographic notes
from the Court of First Instance in Quezon City, where I went there in
November, I cannot remember the date but that was one week after the
contract
was made, they handed to me a letter of dismissal from the Court of
Appeals,
so I contacted him." (TSN, January 30, 1975, Sattar,
pages
21-22).
Complainant reasoned that
he could not hire counsel to appeal to the Supreme Court the decision
of
the Court of Appeals affirming the lower court decision because he
could
not afford it anymore. He said that it was his co-accused Francisco
Gonzales
who secured the services of and paid for his own private counsel (ibid.,
page 36).
To prove the fault of
complainant in taking his time to hire counsel in his defense to
undertake
the appeal of the decision of the lower court, respondent
cross-examined
complainant in the hearings:
"Now, from the year
1971 up to November 16, 1973, did you try to secure the services of a
lawyer
in order to prepare your brief before the Court of Appeals?"
Complainant answered:
"I was looking for my
co-accused because I have been indigent and it was our understanding
that
he will be the one to shoulder all the expenses when I could no longer
locate him and that was the time I hired you as my lawyer."
(pages 51-52).cralaw:red
The same question was
answered by complainant:
"Q. From
1971 up to November 15, 1973, did you engage the services of a lawyer?
"A. I did
not." (pages 78 to 79).cralaw:red
"Q. You
did not. Now will you please tell us why on November 16, 1973, all of a
sudden you hired the services of a lawyer?
"A. Because
I had been looking for a good lawyer and Amirul Hadjirul told me that
you
are a brilliant lawyer, hence, I hired your services." (pages
79-80).cralaw:red
The Commission cannot
give credence to the allegation of respondent-attorney with respect to
the fact that it was a condition for his acceptance of the case that
the
records of the case be furnished him by complainant, because the lawyer
has the responsibility to exert his best efforts at the case which
includes
necessarily that he secure the records himself as part of his duty. The
Commission, therefore, would rather believe complainant who testified
that:
"Q. And you promised
Atty. Lopez or the respondent to bring over the records to his office
in
order that he could study your case, is it not?
"A. Yes,
but I told the respondent that when I went to the Court of First
Instance,
the court personnel informed me that the records has been forwarded to
the Court of Appeals and I told him that I could no longer contact
Atty.
Calvario and you told me 'never mind, after all, I will be the one to
research
with the Court of Appeals.'" (pages 93-94).cralaw:red
We cannot attribute
fault in this regard to the respondent because his client knew that the
records were being transmitted from the lower court to the Court of
Appeals.
Aside from this matter, no other allegations in the complaint was
substantiated
with proof primarily because the complainant stopped testifying against
respondent. On April 16, 1975, the last recorded hearing was held
wherein
the complainant manifested that he had filed an affidavit of desistance
in favor of respondent, having forgiven respondent because every
individual
is subject to commit mistakes so that respondent Atty. Percival Lopez
is
but human to commit mistake. (pages 1-4, TSN Sattar,
April
16, 1975, Office of the Solicitor General).cralaw:red
The investigator then
asked probing questions, disregarding the affidavit of desistance but
the
complainant no longer wanted to testify against respondent.cralaw:red
After the promulgation
of Rule 139-B, all the cases against lawyers pending before the Office
of the Solicitor General were endorsed to the Integrated Bar of the
Philippines.
When the new Commissioners were appointed to the Commission on Bar
Discipline,
several hearings were called but both complainant and respondent could
no longer be located. Hence, this Commission considered this case
submitted
for resolution based on existing evidence.cralaw:red
Rule 139-B mandates
that even if there is desistance by complainant, the investigation must
proceed and continue. The wisdom of this provision is exemplified in
this
particular case because despite the fact that complainant has already
desisted,
from the existing evidence gathered up to the time complainant desisted
which is sometime in the third full-scale hearing, there had been
enough
gathered to look into the character of the attorney and judge him on
his
actions.cralaw:red
There are two important
points that have to be considered here. First is the admission by
respondent
that he accepted the case of complainant on November 16, 1973. Second,
respondent admits that he was informed by complainant of the dismissal
of the appeal with the Court of Appeals one week after the complainant
informed respondent that the clerk in the lower court had informed him
of the November 9, 1973 Resolution of the Court of Appeals dismissing
the
appeal of complainant.cralaw:red
In the testimonies of
complainant above-quoted, We discover that his appeal with the Court of
Appeals was dismissed because of inaction by the complainant himself
from
1971 when the conviction was meted out up to November 16, 1973 when
respondent
was hired. This means that the dismissal of the appeal was not the
respondent's
fault because the date of the order of dismissal of the appeal by the
Court
of Appeals is November 9, 1973 whereas respondent was only hired on
November
16, 1973. In that regard, respondent herein should not be blamed.cralaw:red
However, as to the other
point, respondent, after he was hired on November 16, 1973, did not
perform
anything for the sake of complainant's case despite the fact that he
has
admittedly received compensation for the purpose of continuing the case
on appeal. Respondent admits that even after he was informed by
complainant
of the dismissal of the appeal in the Court of Appeals, which was one
week
after respondent was hired, respondent did not undertake to do any
service
for respondent and did not even bother to return the money paid to him
by the complainant if there was nothing more than can be done for the
complainant.
Respondent admits that he did not file any brief because the original
records
of the case were with the Office of the Solicitor General and,
therefore,
not with the Court of Appeals.cralaw:red
It is possible that
when complainant went to the Court of Appeals, the records had just
been
delivered in view of the certification issued by the Records Department
of the Court of Appeals that the Solicitor General had the records for
some time. But it is highly unimaginable that respondent did not file
any
motion for reconsideration or at least inform the court as to his
appearance
or of having been recently hired as counsel for the complainant and as
to the unavailability of the expediente which had been with the Office
of the Solicitor General in order to seek a deferment of the deadline
or
seek reconsideration of dismissal from the Court of Appeals.cralaw:red
We cannot agree with
the argument of respondent that the engagement of respondent was
limited
to the filing of an appeal brief because respondent himself admits that
when respondent accepted the engagement, he accepted the whole case for
appeal and not merely restricted to any one single motion or
proceeding.
That argument is only plausible if an original counsel has control of
the
case and respondent was hired merely as collaborating counsel only for
purposes of filing the appeal brief. But that is not the case here.
Respondent
was hired as counsel with full control of the case and not merely as
collaborating
counsel.cralaw:red
Although We find that
respondent is not responsible for the dismissal of the appeal by the
Court
of Appeals, We cite his lack of diligence in handling the case he has
accepted
on appeal. It is the duty of counsel to be vigilant in the prosecution
or defense of the case for his client. The high standards of the
profession
has no room for lawyers who are more interested in their purse than in
the interest of their client so much so that clients' interest is
neglected.
Lawyers should also be careful in dealing with clients on appeal
especially
in this case where complainant had already been convicted in a criminal
case and therefore needs prompt and significant assistance in his
appeal.cralaw:red
We are cognizant of
the desperate situation that complainant is in, having been convicted
already
and not having had the money for two years since conviction to get a
lawyer
and the fact that respondent may be the only one on whom complainant
can
lay the blame for his imprisonment he refusing to pin it on
himself.
That is why We are
not blaming respondent for the dismissal of the appeal by the Court of
Appeals. We are not concerned with whether he won or lost the case.
What
We are concerned about is respondent's inaction despite his acceptance
of the money given him as fees. Respondent in fact did not raise a
finger
and that is tantamount to abandonment and undue advantage of his
client.[5]
In two letters dated
May 23, 1995 and June 9, 1995, respondent asked that he be allowed to
submit
a memorandum. Respondent's request was granted by the Court in a
Resolution
dated June 20, 1995.
The matter thereafter
was referred to the Bar Confidant for resolution, report and
recommendation.
In her Report dated March 15, 1996, the Bar Confidant recommended that
the complaint be dismissed.cralaw:red
We cannot agree with
the IBP Commissioner's Report.cralaw:red
Respondent brands as
"suspicious," "puzzling" and "indicative of mischief" the revival of
the
complaint after twenty years.[6]
Though we hesitate to ascribe, as respondent does, ill will on the part
of the IBP Board of Governors and its Investigating Commissioner, We
are
inclined to think that the rendering of the decision was ill-conceived.cralaw:red
Procedural due process
in disbarment or suspension proceedings require that the respondent be
given full opportunity upon reasonable notice to answer the charges
against
him, to produce witnesses in his own behalf, and to be heard by himself
or counsel.[7]
As pointed out by respondent and borne by the record, he was not
notified
of the alleged several hearings conducted by the investigating
committee,
contrary to the statement in the Commissioner's Report that "several
hearings
were called but both complainant and respondent could no longer be
located."[8]
Respondent emphasized that "the IBP could have easily ascertained [his]
appointment as a judge and some of the IBP officers from 1988 up to the
present are known by [him]."[9]
Thus it is not at all
improbable that respondent in all good faith believed this
administrative
case to have been closed and terminated by the lack of notice of any
further
proceedings through the ensuing twenty years. His surprise at the IBP
Report
recommending his three-month suspension is quite believable.
In the proceedings
conducted
before the Office of the Solicitor General, respondent did not pursue
cross-examination
of complainant and did not introduce evidence in his defense by reason
of complainant's desistance. Complainant himself had not testified on
substantial
matters. As noted in the Commissioner's Report, "(a)side from this
matter
[re whether respondent's acceptance of the case was predicated on
complainant
furnishing him with the records], no other allegations in the complaint
was (sic) substantiated with proof
primarily
because complainant stopped testifying against respondent."[10]
Rule 139-B of the Revised
Rules of Court mandates that no investigation shall be terminated by
reason
of the desistance of the complainant, the rationale being that the case
may proceed regardless of interest or lack of interest of the
complainants,
if the facts proven so warrant.[11]
We find the Investigating Commissioner's finding of culpability lacking
in substantial basis.cralaw:red
Interestingly enough,
the Commissioner's Report stated that the dismissal of the appeal was
not
respondent's fault. What the Investigating Commission held against
respondent
was that despite respondent's receipt of compensation, he "did not
perform
anything for the sake of complainant's case," and "did not even bother
to return the money paid to him by complainant if there was nothing
more
that can be done for the complainant."[12]
Respondent asserts that
he cannot be held liable for "inaction" and "abandonment" of a client's
cause. He alleges that he learned of the dismissal of the appeal two
months
after complainant himself learned of such dismissal. Annexed to his
answer
was the affidavit of a certain Amirul Hajirul attesting to the truth of
this allegation, and which form part of the records considered by the
IBP
Committee.[13]
Respondent contends
that complainant's delay in informing him of the dismissal of the
appeal
is merely one of the circumstances showing complainant's "pattern of
negligent
behavior in failing to put his affairs in order which was consistent
with
his failure to provide the case records to respondent;"[14]
and given complainant's neglect, respondent could not find any
authority
in support of a revival or reinstatement of complainant's appeal.
Respondent
asserts that he "could not have sought a 'deferment of the deadline of
or seek reconsideration of dismissal of the Court of Appeals' without
running
the risk of being disciplined for trifling with the Court of Appeals.
Besides,
respondent promptly informed complainant of the futility of a
reinstatement
or revival."[15]
As an attorney, it was
respondent's duty under Rule 130, Section 20 of the Revised Rules of
Court:
"(c) To counsel or
maintain such actions or proceedings only as appear to him to be just,
and such defenses only as he believes to be honestly debatable under
the
law."
We do not here consider
the wisdom of respondent's opinion not to pursue the revival or
reinstatement
of complainant's appeal. We, however, note that respondent was not
lacking
in candor when he promptly counseled complainant that in respondent's
assessment
a revival or reinstatement of the appeal would be unavailing,[16]
giving complainant ample time and opportunity to seek other legal
opinions.[17]
In holding respondent
culpable for neglect, the Investigating Commissioner also concluded
that
respondent was hired, not merely to prepare and file the appeal brief,
but as counsel "with full control of the case."[18]
We disagree.cralaw:red
In the trial court as
well as the appellate court, the counsel of record was a certain Atty.
Calvario. It was this Atty. Calvario who filed the notice of appeal in
the trial court.[19]
Atty. Calvario also received the Court of Appeals' orders and
processes;
for instance, he received on September 19, 1973 the appellate court's
resolution
requiring him to show cause why the appeal should not be dismissed for
failure to file brief.[20]
It does not appear that Atty. Calvario filed a formal petition
withdrawing
his appearance in the appellate court.[21]
Furthermore, the tenor
of the contract signed by respondent and complainant bespeak of a
special
retainership with respondent hired to render the special service of
preparing
and filing the appeal brief.[22]
We also cannot find
fault, as the Investigating Commissioner does, in respondent not having
returned the amounts of P200 and P120 given him by complainant.cralaw:red
A lawyer has the right
to be paid for the legal services he has extended to his client, which
compensation must not be unreasonable.[23]
It cannot be said that respondent did not spend time and effort on the
case, time taken from his other clients and other concerns, in
consultation
with complainant and in research on the appeal and the matter of the
revival
or reinstatement of the lost appeal. Considering such, we find the P320
paid respondent not in the least unconscionable, even by the standards
of the early 1970's.cralaw:red
CONSIDERING THE FOREGOING,
the Court Resolved to DISMISS A.C. No. 1370 against Percival Lopez.cralaw:red
SO ORDERED.cralaw:red
Narvasa, C.J.,
Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Mendoza, Francisco, Panganiban and Torres, Jr., JJ., concur.
Hermosisima, Jr., J.,
is on leave.cralaw:red
__________________________
Endnotes
[1]
Rollo, pp. 2-4.
[2]
Id., at 2-3.
[3]
Id., at 17-22.
[4]
Id., at 27.
[5]
Commissioner's Report, pp. 3-9.
[6]
Memorandum, p. 3 and p. 20.
[7]
Rule 138, Section 30, Revised Rules of Court; See Section 8, Rule
139-B,
Revised Rules of Court; Also Valencia v. Cabanting, 196 SCRA 302 (1991).
[8]
See Note 5, p. 6.
[9]
See Note 4, at pp. 2-3.
[10]
See Note 6, at p. 5.
[11]
Valencia v. Cabanting, supra.; Munar v. Flores, 122 SCRA 448 (1983); Go
v. Cabdoy; 21 SCRA 439 (1967).
[12]
At p.7.
[13]
See Note 1, at p. 25.
[14]
See Note 4, at p. 12.
[15]
Id., at 14.
[16]
See Canon 15, Rule 15.05, Code of Professional Responsibility.
[17]
See Santiago V. Fojas, 248 S 68 (1995).
[18]
See Note 6, at p. 8.
[19]
TSN, January 30, 1975, pp. 24, 34, 25.
[20]
See Court of Appeals Resolution in CA-G.R. No. 13453-CR dated November
9, 1973 dismissing complainant's appeal, Annex "A" of respondent's
answer.
[21]
See Rule 138, Sec. 22, Revised Rules of Court.
[22]
See Note 1, at p. 6.
[23]
Rule 138, Sec. 24, Revised Rules of Court; Lorenzo v. Court of Appeals,
189 SCRA 260 (1990); See also Canon 20, Rule 20.1, Code of Professional
Responsibility. |