EN
BANC
LOURDES
R. BUSIÑOS,
Complainant,
A. C. No. 4349
December 22, 1997
-versus-
ATTY.
FRANCISCO RICAFORT,
Respondent.
R
E S O L U T I O N
PER CURIAM:
In a sworn
complaint for disbarment dated 31
October 1994 but received by Us on 21 November 1994, complainant
Lourdes
R. Busiños charged respondent Atty. Francisco Ricafort, a
practicing
lawyer in Oas, Albay, with having committed the crime of estafa under
Article
315(1) (b) of the Revised Penal Code by misappropriating the sum of
P32,000.00.
Of this amount, P30,000.00 was entrusted to respondent for deposit in
the
bank account of complainant's husband, while P2,000.00 represented the
amount respondent demanded from complainant supposedly for a bond in
Civil
Case No. 5814, when no such bond was required.
In the resolution
of 18 January 1995, We required
respondent to comment on the complaint. Despite his receipt of a copy
of
the resolution, respondent did not comply, compelling us in the
resolution
of 17 July 1995 to require him to show cause why he should not be
disciplinarily
dealt with or held in contempt for such failure.cralaw:red
Again, respondent
failed to comply. Hence, in
the resolution of 25 September 1996, We ordered him once more to file
his
comment within ten (10) days from notice, and within the same period,
to
pay a fine of P1,000.00 or suffer imprisonment of ten (10) days should
he fail to so pay. In a Compliance and Motion dated 24 October 1996,
respondent
transmitted the fine of P1,000.00 by way of postal money order, but
asked
for five (5) days from date to file his comment. As respondent still
failed
to so file, We then declared, in the resolution of 2 December 1996,
that
respondent was deemed to have waived his right to file his comment, and
referred the complaint to the Office of the Bar Confidant for reception
of complainant's evidence and submission of a report and recommendation
thereon.cralaw:red
On 16 October
1997, the Bar Confidant, Atty. Erlinda
C. Verzosa, submitted her Report and Recommendation, material portions
of which read as follows:
Respondent Atty. Francisco Ricafort
stands
charged
with having misappropriated the sum of P30,000.00 intended for his
clients
as well as having deceived his clients into giving him the sum of
P2,000.00
purportedly to be deposited as a bond in the case he was handling.
Complainant Lourdes R. Businos is one of
the
heirs of Pedro Rodrigo who are the defendants in Civil Case No. 1584,
apparently
a case involving the properties of the late Pedro Rodrigo, father of
herein
complainant. Respondent was the counsel of record for the defendants in
the said case. On July 10, 1994, complainant, representing her
co-heirs,
executed a special power of attorney, appointing and constituting
respondent
and/or Pedro Rodrigo, Jr. to be her true and lawful attorney-in-fact
with
the following powers:
1. To attend to and represent me,
testify, or
otherwise enter into compromise during the pre-trial stage or other
proceedings
in Civil Case No. 1584, entitled "Heirs of Rosario Rodrigo-Reantaso,
vs.
Heirs of Pedro Rodrigo Sr., et. al." now pending before the Regional
Trial
Court, Branch 12, Ligao, Albay;
2. To demand, collect and receipt for
any and
all sums of money that may now be deposited in said court by the
defendant
Oas Standard High School or hereafter be deposited by said defendant,
due
and owing to me or said Heirs of Pedro Rodrigo, Sr., representing the
rentals
of said defendant for the lease of the property involved in said case;
and
3. To sign, authenticate, issue and
deliver
any
and all deeds, instruments, papers and other records necessary and
pertinent
to the above stated transactions.
On August 10, 1994, the Regional Trial
Court
of Ligao, Albay, Br. 12 issued an order, directing the Clerk of Court
"to
release any and all deposits of rentals made in connection with this
case
[Civil Case No. 1584] to the defendants Heirs of Pedro Rodrigo through
Lourdes Rodrigo Businos who were receiving the rentals from Oas
Standard
High School prior to the institution of this case."
In a letter dated August 10, 1994, the
Clerk
of Court of RTC, Ligao informed herein complainant that respondent had
already received the rental deposit of P25,000.00 on even date [see
Annex
"C" to the complaint]. Respondent also received from Oas Standard High
School on August 17, 1994 the sum of P5,000.00 as payment for rental of
school site for the month of July 1994 [See Annex "D" to the
complaint].
The said sum was entrusted to respondent with an obligation on his part
to deposit the same in the account of complainant's husband at PNB,
Ligao
Branch. Instead, however, of depositing the money, respondent converted
the money to his own personal use, and despite several demands, he
failed
to return the same to complainant. She was thus constrained to file a
criminal
case for estafa and an administrative case for disbarment against him.
Thus, on November 21, 1994, complainant filed the instant
administrative
case against respondent.
Complainant further accuses respondent
for
demanding
and receiving P2,000.00 from her which he said will be used for the
bond
in Civil Case No. 1584, but said amount was never used as intended
since
no bond was required in the said case. Thus, respondent merely pocketed
the said amount.
Complainant, upon questioning by the
undersigned,
testified that: She authorized respondent to withdraw the money
amounting
to P35,000.00 representing the rental fee paid by Oas Standard High
School
from the Clerk of Court, with the instruction to deposit the same in
her
savings account at the PNB. After she was informed by the court that
respondent
had already withdrawn the money, she expected in vain to receive the
money
a week later in Tarlac as respondent failed to effect the deposit of
the
said sum in her account. She demanded from him to give her the money,
but
he informed her that he had already spent the same. He promised,
though,
to pay her the said amount. [pp. 7-8, TSN, Reception of Evidence, April
18, 1997]. She clarified that respondent withdrew only the sum of
P30,000.00
from the Clerk of Court, while the P5,000.00 was withdrawn by
respondent
from Oas Standard High School [TSN, p. 8]. Despite several demands,
both
from her and her lawyer, respondent failed to make good his promise to
give her the money he withdrew from the Clerk of Court and Oas Standard
High School [TSN, pp. 11-13]. She was then constrained to file a
criminal
case for estafa and an administrative case against respondent sometime
in November of 1994 to recover the money in question [TSN, pp. 14-16].
On their third hearing of the estafa case sometime in 1995, respondent
came with the money and paid complainant inside the courtroom [TSN, pp.
15, 19-20]. Because of this development, she did not anymore pursue the
estafa case against respondent [TSN, p. 17]. She has no intention,
however,
of withdrawing the instant complaint [TSN, p. 18].
She further testified that respondent
demanded
from her the sum of P2,000.00 for the bond required in the civil case.
[TSN, p. 18]. Respondent did not give her a receipt for the said
amount.
[TSN, p. 19]. Respondent gave back the P2,000.00 to complainant. He
paid
complainant a total of P60,000.00 representing the money he withdrew
from
the Clerk of Court and Oas Standard High School, the P2,000.00 he got
from
complainant and attorney's fees, which he undertook to foot as a way of
settlement. [TSN, p. 19].
Although complainant failed to submit the
original
or certified true copies of the documents in support of her complaint
against
respondent, respondent's repeated failure to comply with several
resolutions
of the Court requiring him to comment on the complaint lends credence
to
the allegations of the complainant. It manifests his tacit admission
thereto.
We have no other alternative, therefore, but to accept the said
documents
at their (sic) face value.
There is no doubt that respondent is
guilty of
having used the money of his clients without their consent. As the
evidentiary
value of the documents should be given more weight than the oral
testimony
of complainant, we place the amount illegally used by respondent at
P30,000.00
and not P35,000.00 as claimed by complainant. Respondent's illegal use
of his client's money is made more manifest (by) his letters to
complainant,
all promising the latter to make good his promise to pay the money he
withdrew
from the Clerk of Court and Oas Standard High School [See Annex "E" to
the complaint].
It bears emphasis that a lawyer, under
his
oath,
pledges himself not to delay any man for money or malice and is bound
to
conduct himself with all good fidelity to his clients. He is obligated
to report promptly the money of his clients that has come into his
possession.
He should not commingle it with his private property or use it for his
personal purposes without his client's [sic] consent. He should
maintain
a reputation for honesty and fidelity to private trust [Daroy vs.
Legaspi,
65 SCRA 304].
Money collected by a lawyer in pursuance
of a
judgment in favor of his clients is held in trust and must be
immediately
turned over to them [Aya vs. Bigornia, 57 Phil. 8]. Respondent, by
converting
the money of his clients to his own personal use without their consent,
and by deceiving the complainant into giving him the amount of
P2,000.00
purportedly to be used as a bond which was not required is,
undoubtedly,
guilty of deceit, malpractice and gross misconduct. By so doing, he
betrays
the confidence reposed in him by his clients. Not only has he degraded
himself but as an unfaithful lawyer he has besmirched the fair name of
an honorable profession.
His belated payment of the amount he
illegally
used and fraudulently obtained do not relieve him from any liability if
only to impress upon him that the relation between an attorney and his
client is highly fiduciary in its nature and of a very delicate,
exacting
and confidential character, requiring high degree of fidelity and good
faith. In view of that special relationship, lawyers are bound to
promptly
account for money or property received by them on behalf of their
clients
and failure to do so constitutes professional misconduct [Daroy vs.
Legaspi, supra].
Moreover, his repeated failure to comply
with
the resolutions of the Court, requiring him to comment on the complaint
indicate the high degree of irresponsibility of respondent.
PREMISES CONSIDERED, it is respectfully
recommended
that respondent Atty. Francisco Ricafort be SUSPENDED from the practice
of law for a period of ONE (1) YEAR.
While the
findings are in order, the penalty recommended
is not commensurate to respondent's infractions. Plainly, respondent
breached
Section 25 of Rule 138 of the Rules of Court, Rule 1.01 of Canon 1 and
Rules 16.01, 16.02 and 16.03 of Canon 16 of the Code of Professional
Responsibility,
which read:
Sec. 25. Unlawful retention of
client's
funds;
contempt.- When an attorney unjustly retains in his hands
money
of his client after it has been demanded he may be punished for
contempt
as an officer of the Court who has misbehaved in his official
transactions;
but proceedings under this section shall not be a bar to a criminal
prosecution.
CANON 1.
A LAWYER SHALL UPHOLD THE
CONSTITUTION,
OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL PROCESS.
Rule 1.01. A lawyer shall not
engage in
unlawful, dishonest, immoral or deceitful conduct.
CANON 16.
A LAWYER SHALL HOLD IN TRUST ALL MONEYS
AND
PROPERTIES
OF HIS CLIENT THAT MAY COME INTO HIS POSSESSION.
Rule 16.01. A lawyer shall
account for
all money or property collected or received for or from the client.
Rule 16.02. A lawyer shall keep
the
funds
of each client separate and apart from his own and those of others kept
by him.
Rule 16.03. A lawyer shall
deliver the
funds and property of his client when due or upon demand. However, he
shall
have a lien over the funds and may apply so much thereof as may be
necessary
to satisfy his unlawful fees and disbursements, giving notice promptly
thereafter to his client. He shall also have a lien to the same extent
on all judgments and executions he has secured for his client as
provided
for in the Rules of Court.
Respondent's
transgressions manifested dishonesty
and amounted to grave misconduct and grossly unethical behavior which
caused
dishonor, not merely to respondent, but to the noble profession to
which
he belongs, for it cannot be denied that the respect of litigants for
the
profession is inexorably diminished whenever a member of the Bar
betrays
their trust and confidence.
This Court has
been nothing short of exacting
in its demand for integrity and good moral character from members of
the
Bar. In Marcelo v. Javier [A. C. No. 3248, 18 September 1992, 214 SCRA
1, 12-13], reiterated in Fernandez v. Grecia, [A. C. No. 3694, 17 June
1993, 223 SCRA 425, 434], this Court declared:
A lawyer shall at all times uphold the
integrity
and dignity of the legal profession. The trust and confidence
necessarily
reposed by clients require in the attorney a high standard and
appreciation
of his duty to his client, his profession, the courts and the public.
The
bar should maintain a high standard of legal proficiency as well as of
honesty and fair dealing. Generally speaking, a lawyer can do honor to
the legal profession by faithfully performing his duties to society, to
the bar, to the courts and to his clients. To this end, nothing should
be done by any member of the legal fraternity which might tend to
lessen
in any degree the confidence of the public in the fidelity, honesty and
integrity of the profession.
Here,
respondent chose to forget that by swearing
the lawyer's oath, he became a guardian of truth and the rule of law,
and
an indispensable instrument in the fair an impartial administration of
justice a vital function of democracy a failure of which is
disastrous
to society. Any departure from the path which a lawyer must
follow
as demanded by the virtues of his profession shall not be tolerated by
this Court as the disciplining authority. This is specially so, as
here,
where respondent even deliberately defied the lawful orders of the
Court
for him to file his comment on the complaint, thereby transgressing
Canon
11 of the Code of Professional Responsibility which requires a lawyer
to
observe and maintain the respect due the courts.
WHEREFORE, for
dishonesty, grave misconduct, grossly
unethical behavior in palpable disregard of Section 25 of Rule 138 of
the
Rules of Court, Rule 1.01 of Canon 1 and Rules 16.01, 16.02 and 16.03
of
Canon 16 of the Code of Professional Responsibility, aggravated by a
violation
of Canon 11 thereof, and consistent with the urgent need to maintain
the
esteemed traditions and high standards of the legal profession and to
preserve
undiminished public faith in the members of the Philippine Bar, the
Court
resolves to DISBAR respondent ATTY. FRANCISCO RICAFORT from the
practice
of law. His name is hereby stricken from the Roll of Attorneys.cralaw:red
This resolution
shall take effect immediately
and copies thereof furnished the Office of the Bar Confidant, to be
appended
to respondent's personal record; the National Office and the Albay
Chapter
of the Integrated Bar of the Philippines; the Philippine Judges
Association;
and all courts of the land for their information and guidance.cralaw:red
SO ORDERED.
Narvasa, C.J.,
Regalado, Davide Jr., Romero,
Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Panganiban
and Martinez, JJ., concur. |