Republic of the
PhilippinesSUPREME COURTManilaSECOND
DIVISION
ANGELITA C. ORCINO,
Complainant,
A. C. No. 3773
September 24, 1997
-versus-
ATTY. JOSUE GASPAR,
Respondent.
D E C I S I O N
PUNO, J.:
On June 14,
1992, complainant Angelita C. Orcino,
filed with this Court a letter-complaint dated December 10, 1991
against
respondent Atty. Josue Gaspar, her former counsel. Complainant prayed
that
this Court impose disciplinary sanctions on respondent for abandoning
his
duties and for failing to return the legal fees she fully paid for his
services.
The complaint
arose from the following facts:
Complainant
engaged the services of respondent
to prosecute a criminal case she intended to file against several
suspects
in the slaying of her husband. In consideration thereof, complainant
bound
herself to pay respondent legal fees of P20,000.00, P10,000.00 to
be paid upon signing of the contract and the balance to be paid on or
before
the conclusion of the case. Complainant was also to pay P500.00 per
appearance
of respondent before the court and fiscal. This agreement was embodied
in a contract executed on February 22, 1991.[1]
In accordance
with the contract, complainant paid
respondent the sum of P5,000.00 on February 25, 1991,[2]
another P5,000.00 on March 31, 1991,[3]
and P10,000.00 on May 21, 1991,[4]
for a total of P20,000.00.cralaw:red
Forthwith,
respondent entered into his duties.
He interviewed witnesses and gathered evidence to build a case against
the suspects. He drew up the necessary sworn statements and dutifully
attended
the preliminary investigation. The case was thereafter filed with the
Regional
Trial Court, Branch 37, Baloc, Sto. Domingo, Nueva Ecija.[5]
As private
prosecutor, respondent religiously
attended the bail hearings for the accused although these hearings were
postponed on motion of the accused's counsel. Respondent, however,
failed
to attend the hearing scheduled in August 1991. It was at this hearing
that the court, over complainant's objections, granted bail to all the
accused. After the hearing, complainant immediately went to
respondent's
residence and confronted him with his absence.[6]
Respondent explained that he did not receive formal notice of the
hearing.[7]
Complainant became belligerent and started accusing him of jeopardizing
the case by his absence. Respondent said that her suspicions were based
on rumors and intrigues fed to her by her relatives.[8]
Complainant, however, continued accusing him belligerently. She asked
for
the records of the case saying that she could refer them to another
lawyer.
Stung by her words, respondent gave her the records.[9]
Complainant never
returned the records nor did
she see respondent. On September 18, 1991, respondent filed before the
trial court a "Motion to Withdraw as Counsel."[10]
The motion did not bear the consent of complainant.cralaw:red
On October 23,
1991, the court issued an order
directing respondent to secure complainant's consent to the motion "and
his appearance as private prosecutor shall continue until he has
secured
this consent."[11]
Complainant refused to sign her conformity to respondent's withdrawal.[12]
Meanwhile, the hearings in the criminal case continued. Respondent did
not appear at the hearings nor did he contact complainant. Complainant
was thus compelled to engage the services of another lawyer. Hence, the
letter-complaint.cralaw:red
We referred the
letter-complaint to the Integrated
Bar of the Philippines, Commission on Bar Discipline, for
investigation,
report and recommendation.cralaw:red
The rule in this
jurisdiction is that a client
has the absolute right to terminate the attorney-client relation at any
time with or without cause.[13]
The right of an attorney to withdraw or terminate the relation other
than
for sufficient cause is, however, considerably restricted.[14]
Among the fundamental rules of ethics is the principle that an attorney
who undertakes to conduct an action impliedly stipulates to carry it to
its conclusion.[15]
He is not at liberty to abandon it without reasonable cause.[16]
A lawyer's right to withdraw from a case before its final adjudication
arises only from the client's written consent or from a good cause.[17]
Section 26 of
Rule 138 of the Revised Rules of
Court provides:
Sec. 26. Change of Attorneys.
-
An attorney may retire at any time from any action or special
proceeding,
by the written consent of his client filed in court. He may also retire
at any time from an action or special proceeding, without the consent
of
his client, should the court, on notice to the client and attorney, and
on hearing, determine that he ought to be allowed to retire. In case of
substitution, the name of the attorney newly employed shall be entered
on the docket of the court in place of the former one, and written
notice
of the change shall be given to the adverse party.
A lawyer may retire at any time from any
action
special proceeding with the written consent of his client filed in
court
and copy thereof served upon the adverse party. Should the client
refuse
to give his consent, the lawyer must file an application with the
court.
The court, on notice to the client and adverse party, shall determine
whether
he ought to be allowed to retire. The application for withdrawal must
be
based on a good cause.[18]
In the instant
case, complainant did not give her
written consent to respondent's withdrawal. The court thus ordered
respondent
to secure this consent. Respondent allegedly informed the court that
complainant
had become hostile and refused to sign his motion.[19]
He, however, did not file an application with the court for it to
determine
whether he should be allowed to withdraw.
Granting that respondent's motion without
complainant's
consent was an application for withdrawal with the court, we find that
this reason is insufficient to justify his withdrawal from the case.
Respondent's
withdrawal was made on the ground that "there no longer existed the
confidence"
between them and that there had been "serious differences between them
relating to the manner of private prosecution."[20]
Rule 22.01 of
Canon 22 of the Code of Professional
Responsibility provides:
CANON 22. A LAWYER SHALL WITHDRAW
HIS
SERVICES
ONLY FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE CIRCUMSTANCES.
Rule 22.01 A lawyer may withdraw his
services
in any of the following cases:
(a) When the client pursues an
illegal or
immoral
course of conduct in connection with the matter he is handling;
(b) When the client insists that
the
lawyer pursue
conduct violative of these canons and rules;
(c) When his inability to work
with
co-counsel
will not promote the best interest of the client;
(d) When the mental or physical
condition of the
lawyer renders it difficult for him to carry out the employment
effectively;
(e) When the client deliberately
fails
to pay
the fees for the services or fails to comply with the retainer
agreement;
(f) When the lawyer is elected or
appointed to
public office; and
(g) Other similar cases.
A lawyer may withdraw his services from
his
client
only in the following instances: (a) when a client insists upon an
unjust
or immoral conduct of his case; (b) when the client insists that the
lawyer
pursue conduct violative of the Code of Professional Responsibility;
(c)
when the client has two or more retained lawyers and the lawyers could
not get along to the detriment of the case; (d) when the mental or
physical
condition of the lawyer makes him incapable of handling the case
effectively;
(e) when the client deliberately fails to pay the attorney's fees
agreed
upon; (f) when the lawyer is elected or appointed to public office; (g)
other similar cases.
The instant
case does not fall under any of the grounds
mentioned. Neither can this be considered analogous to the grounds
enumerated.
As found by the Commission on Bar Discipline, this case arose from a
simple
misunderstanding between complainant and respondent. Complainant was
upset
by respondent's absence at the hearing where bail was granted to the
suspected
killers of her husband. She vehemently opposed the grant of bail. It
was
thus a spontaneous and natural reaction for her to confront respondent
with his absence. Her belligerence arose from her overzealousness,
nothing
more. Complainant's words and actions may have hurt respondent's
feelings
considering the work he had put into the case. But her words were
uttered
in a burst of passion. And even at that moment, complainant did not
expressly
terminate respondent's services. She made this clear when she refused
to
sign his "Motion to Withdraw as Counsel."
Assuming,
nevertheless, that respondent was justified
in terminating his services, he, however, cannot just do so and leave
complainant
in the cold unprotected. The lawyer has no right to presume that his
petition
for withdrawal will be granted by the court.[21]
Until his withdrawal shall have been approved, the lawyer remains
counsel
of record who is expected by his client as well as by the court to do
what
the interests of his client require.[22]
He must still appear on the date of hearing[23]
for the attorney-client relation does not terminate formally until
there
is a withdrawal of record.[24]
Respondent
expressly bound himself under the contract
to bring the criminal case to its termination. He was in fact paid in
full
for his services. Respondent failed to comply with his undertaking,
hence,
it is but fair that he return to complainant half of the amount paid
him.
The peculiar circumstances of the case have rendered it impossible for
respondent and complainant to continue their relation under the
contract.cralaw:red
IN VIEW WHEREOF,
respondent is admonished to exercise
more prudence and judiciousness in dealing with his clients. He is also
ordered to return to complainant within fifteen (15) days from notice
the
amount of ten thousand pesos (P10,000.00) representing a portion of his
legal fees received from the latter with a warning that failure on his
part to do so will result in the imposition of stiffer disciplinary
action.cralaw:red
SO ORDERED.cralaw:red
Regalado and
Torres, Jr., JJ., concur.
Mendoza, J., is on leave.cralaw:red
________________________________
Endnotes
[1]
Exhibit "C."
[2]
Exhibit "D."
[3]
Exhibit "E."
[4]
Exhibit "F."
[5]
Criminal Case No. SD-66[91] entitled "People of the Philippines v.
Venancio
Salazar, Danilo Salazar and Celso Salazar."
[6]
T. S. N.of November 22, 1993, pp. 14-16.
[7]
Id., p. 15.
[8]
Answer, p. 4, Records, p. 24; Exhibit "1."
[9]
Exhibit "1," p. 1.
[10]
Exhibit "G."
[11]
Exhibit "H."
[12]
T. S. N. of August 31, 1995, p. 6.
[13]
Rinconanda Tel. Co., Inc. v. Buenviaje, 184 SCRA 701, 704 [1990];
Second
paragraph, Section 26, Rule 138, Revised Rules of Court provides: A
client
may at any time dismiss his attorney or substitute another in his
place,
but if the contract between client and attorney has been reduced to
writing
and the dismissal of the attorney was without justifiable cause, he
shall
be entitled to recover from the client the full compensation stipulated
in the contract.
[14]
Martin, Legal and Judicial Ethics, p. 102 [1988]; and Pineda, Legal and
Judicial Ethics, p. 266 [1994] citing 7 C.J.S. 940.
[15]
Dais v. Garduno, 49 Phil. 165, 169 [1925]; Stork County v. Mishel, 173
N.W. 817, 820, 6 ALR 174 [1919], cited in Agpalo, Legal Ethics, pp.
289-290
[1992]; Martin, supra, and Pineda, supra.
[16]
Id.
[17]
Agpalo, supra, at 290, citing Rule 138, Sec. 26; Canon 22, Code of
Professional
Responsibility; Canon 44, Canons of Professional Ethics.
[18]
Agpalo, supra.
[19]
T. S. N. of August 31, 1995, pp. 6-7.
[20]
Exhibit "G."
[21]
Visitacion v. Manit, 27 SCRA 523, 531 [1969].
[22]
People v. Casimiro, 45 SCRA 554, 556-557 [1972]; Wack Wack Golf &
Country
Club v. Court of Appeals, 106 Phil. 501, 504-505 [1959].
[23]
Visitacion v. Manit, supra; Wack Wack Golf & Country Club v. Court
of Appeals, supra.
[24]
Tumbagahan v. Court of Appeals, 165 SCRA 485 [1988]; Visitacion v.
Manit,
supra. |