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[A.C. No. 5827. August 6, 2003]

HABAL, SR. vs. REYES

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated AUG 6 2003.

A.C. No. 5827 (Domingo Habal, Sr. vs. Atty. Jocelyn P. Reyes *.)

In an Affidavit-Complaint, dated March 29, 2000, filed before the Integrated Bar of the Philippines (IBP), Domingo Habal, Sr. is seeking the disbarment of Atty. Jocelyn P. Reyes for Gross Malpractice.

It appears from the records that complainant is the defendant-appellant in CA-G.R. CV No. 57735 entitled "Leopoldo Abella, et al. vs. Domingo Habal, Sr." pending in the Court of Appeals. He engaged the services of the respondent to represent him in said case and paid her the amount of P20,000.00 as acceptance fee. Habal, Sr. complains that thereafter, on three occasions, respondent asked from him a total sum of P72,200.00 for payment of certain fees to the Court of Appeals for which respondent gave him three separate official receipts of said court. Suspecting that he was being cheated because of respondent's successive demands for payment, complainant alleges that he personally went to the Court of Appeals to verify the authenticity of all the official receipts that respondent gave him; that he discovered that no such receipts for those dates and for the alleged purposes existed; that he obtained a certification from the Court of Appeals of said fact; that thereupon, he consulted and sought the services of a new counsel, Atty. Alfonso A. Orioste, who sent demand letters to respondent which the latter completely ignored. [1] cralaw

In an Order dated March 31, 2000, the IBP-Commission on Bar Discipline required the respondent to file an Answer/Comment within 15 days from receipt. [2] cralaw The affidavit-complaint was referred to Investigating Commissioner Atty. Winston D. Abuyuan for investigation, report and recommendation.

On October 10, 2000, the Investigating Commissioner issued a Notice to both parties for the initial hearing set on November 9, 2000. [3] cralaw However, only the complainant and his counsel appeared on said date. Thereupon, the Investigating Commissioner issued an Order which reads:

When this case was called for hearing, only the complainant and his counsel appeared. There is no proof of service that respondent was notified of today's hearing.

The records of this case show, however, that an earlier Order dated March 31, 2000 requiring respondent to submit an Answer within fifteen (15) days was duly acknowledged. This has not been complied with.Whether or not the same was conveniently ignored by respondent considering the lapse of time given to respondent, the filing of the Answer is now deemed waived.

In view thereof, this case is now considered submitted for decision.

SO ORDERED. [4] cralaw

Subsequently, the Investigating Commissioner submitted to the IBP Board of Governors his Report and Recommendation dated December 4, 2001.

In a transmittal letter dated September 2, 2002, Atty. Victor C. Fernandez, IBP Director for Bar Discipline, submitted to the Court: (a) a Notice of Resolution of the IBP Board of Governors, and (b) the records of the case consisting of one volume with 13 pages. In its Resolution No. XV-2002-402, IBP Board of Governors adopted the recommendation of the Investigating Commissioner, thus:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the investigating Commissioner of the above-entitled case, herein made part of this Resolution/Decision as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, with modification, and considering that the act of deceiving complainant was done with deliberate intent, Respondent is hereby SUSPENDED from the Practice of law for two (2) years.

An examination of the records reveals that no formal investigation was conducted by the Investigating Commissioner. He considered the case submitted for decision simply upon the failure of the respondent to file an answer and to appear during the initial hearing of the case; and based his report and recommendation merely on the complaint and attached annexes.

The procedure undertaken by the Investigating Commissioner falls short of the exacting standard of Section 8 of Rule 139-B of the Rules of Court, to wit:

SEC. 8. Investigation. - Upon joinder of issues or upon failure of the respondent to answer, the Investigator shall, with deliberate speed, proceed with the investigation of the case. He shall have the power to issue subpoenas and administer oaths. The respondent shall be given full opportunity to defend himself to present witnesses on his behalf and be heard by himself and counsel. However, if upon reasonable notice, the respondent fails to appear, the investigation shall proceed ex parte.

The Investigator shall terminate the investigation within three (3) months from the date of its commencement unless extended for good cause by the Board of Governors upon prior application.

Willful failure to refusal to obey a subpoena or any other lawful order issued by the Investigator shall be dealt with as for indirect contempt of Court. The corresponding charge shall be filed by the Investigator before the IBP Board of Governors which shall require the alleged contemnor to show cause within ten (10) days from notice. The IBP Board of Governors may thereafter conduct hearings, if necessary, in accordance with the procedure set forth in this Rule for hearings before the Investigator. Such hearing shall as far as practicable be terminated within fifteen (15) days from its commencement. Thereafter, the IBP Board of Governors shall within a like period of fifteen (15) days issue a resolution setting forth its findings and recommendations, which shall forthwith be transmitted to the Supreme Court for final action and if warranted, the imposition of penalty. (Emphasis supplied)

The rule is clear that in the event a respondent fails to answer or to appear despite reasonable notice, an ex parte hearing should be conducted to determine the veracity of the contentions of the complainant. The complainant should be heard on the allegations of his complaint and given the opportunity to offer evidence to prove his claims against the respondent, especially considering that he seeks for the latter's disbarment. Indeed, the supreme penalty of disbarment is meted out only in clear cases of misconduct that seriously affect the standing and character of the lawyer as an officer of the court and member of the bar. [5] cralaw Thus, a formal investigation is a mandatory requirement which may not be dispensed with except for valid and compelling reasons. [6] cralaw The procedure outlined by the rule is meant to ensure that the innocents are spared from wrongful condemnation and that only the guilty are meted their just due. Obviously, these requirements cannot, and should not, be taken lightly. [7] cralaw

Considering the gravity of the offense charged and the sanction recommended by the IBP, coupled with the fact that the IBP Investigating Commissioner merely based his report and recommendation on the complaint and attached annexes and finding no compelling reason to dispense with the procedure laid down in Section 8, Rule 139-B, the Court is constrained to remand this administrative case to the IBP for further investigation.

WHEREFORE, Resolution No. XV-2002-402 is SET ASIDE. The instant administrative case is REMANDED to the Integrated Bar of the Philippines for further proceedings. The IBP is directed to act on this referral with deliberate dispatch and to take the appropriate steps to inform its Investigating Commissioners to comply strictly with Rule 139-B of the Rules of Court in the conduct of investigations. Administrative sanctions may be taken against Investigating Commissioners who fail to comply with said Rule.

SO ORDERED.

Very truly yours,

(Sgd.)TOMASITA B. MAGAY-DRIS
Clerk of Court



Endnotes:

* Jocelyn P. Reyes was admitted to the Philippine Bar on May 2, 1983.

[1] cralaw IBP Records, pp. 1-7.

[2] cralaw IBP Records, p. 8.

[3] cralaw IBP Records, p. 9.

[4] cralaw IBP Records, p. 11.

[5] cralaw Tapucar vs. Tapucar, 293 SCRA 331, 339-340 (1998).

[6] cralaw Arandia vs. Magalong, A.C. No. 5094, August 6, 2002, p. 5; Baldomar vs. Paras, 348 SCRA 212, 216 (2000).

[7] cralaw Cottam vs. Laysa, 326 SCRA 614, 619 (2000).


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