Philippine Supreme Court Jurisprudence > Year 2012 > June 2012 Decisions > [A.C. No. 6368 : June 13, 2012] FIDELA BENGCO AND TERESITA BENGCO, COMPLAINANTS, VS. ATTY. PABLO S. BERNARDO, RESPONDENT. :

This is a complaint^[1] for disbarment filed by complainants Fidela G. Bengco (Fidela) and Teresita N. Bengco (Teresita) against respondent Atty. Pablo Bernardo (Atty. Bernardo) for deceit, malpractice, conduct unbecoming a member of the Bar and violation of his duties and oath as a lawyer.cralaw

The acts of the respondent which gave rise to the instant complaint are as follows:

That sometime on or about the period from April 15, 1997 to July 22, 1997, Atty. Pablo Bernardo with the help and in connivance and collusion with a certain Andres Magat [wilfully] and illegally committed fraudulent act with intent to defraud herein complainants Fidela G. Bengco and Teresita N. Bengco by using false pretenses, deceitful words to the effect that he would expedite the titling of the land belonging to the Miranda family of Tagaytay City who are the acquaintance of complainants herein and they convinced herein complainant[s] that if they will finance and deliver to him the amount of [P]495,000.00 as advance money he would expedite the titling of the subject land and further by means of other similar deceit like misrepresenting himself as lawyer of William Gatchalian, the prospective buyer of the subject land, who is the owner of Plastic City at Canomay Street, Valenzuela, Metro Manila and he is the one handling William Gatchalian�s business transaction and that he has contracts at NAMREA, DENR, CENRO and REGISTER OF DEEDS which representation he well knew were false, fraudulent and were only made to induce the complainant[s] to give and deliver the said amount ([P]495,000.00) and once in possession of said amount, far from complying with his obligation to expedite and cause the titling of the subject land, [wilfully], unlawfully and illegally misappropriated, misapplied and converted the said amount to his personal use and benefit and despite demand upon him to return the said amount, he failed and refused to do so, which acts constitute deceit, malpractice, conduct unbecoming a member of the Bar and Violation of Duties and Oath as a lawyer.^[2]

In support of their complaint, the complainants attached thereto Resolutions dated December 7, 1998^[3] and June 22, 1999^[4] of the Third Municipal Circuit Trial Court (MCTC) of Sto. Tomas and Minalin, Sto. Tomas, Pampanga and the Office of the Provincial Prosecutor of San Fernando, Pampanga, respectively, finding probable cause for the filing of the criminal information^[5] against both Atty. Bernardo and Andres Magat (Magat) before the Regional Trial Court (RTC) of San Fernando, Pampanga, Branch 48, charging them with the crime of Estafa punishable under Article 315, par. 2(a) of the Revised Penal Code.

The respondent was required to file his Comment.^[6] On September 24, 2004, the respondent filed an undated Comment,^[7] wherein he denied the allegations against him and averred the following:

2.  He had not deceived both complainants between the period from April 15, 1997 to July 22, 1997 for purposes of getting from them the amount of [P]495,000.00. It was Andy Magat whom they contacted and who in turn sought the legal services of the respondent. It was Andy Magat who received the said money from them.

3. There was no connivance made and entered into by Andy Magat and respondent. The arrangement for titling of the land was made by Teresita N. Bengco and Andy Magat with no participation of respondent.

4. The acceptance of the respondent to render his legal service is legal and allowed in law practice.^[8]

The case was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

On February 16, 2005, the IBP ordered the respondent to submit a verified comment pursuant to Rule 139-B, Section 6 of the Rules of Court as it appeared that the respondent�s undated comment filed with the Court was not verified.^[9]

On March 15, 2005, respondent through counsel requested for an additional fifteen (15) days from March 17, 2005, or until April 1, 2005, within which to comply due to his medical confinement.^[10]

Thereafter, on April 4, 2005, the respondent filed a second motion^[11] for extension praying for another 20 days, or until April 22, 2005, alleging that he was still recovering from his illness.

On August 3, 2005, the case was set for mandatory conference.^[12] The respondent failed to appear; thus, the IBP considered the respondent in default for his failure to appear and for not filing an answer despite extensions granted. The case was then submitted for report and recommendation.^[13]

Based on the records of the case, Investigating Commissioner Rebecca Villanueva-Maala made the following findings:

[O]n or before the period from 15 April 1997 to 22 July 1997, respondent with the help and in connivance and collusion with a certain Andres Magat (�Magat�), by using false pretenses and deceitful words, [wilfully] and illegally committed fraudulent acts to the effect that respondent would expedite the titling of the land belonging to the Miranda family of Tagaytay City, who were the acquaintance of complainants.

Respondent and Magat convinced complainants that if they finance and deliver to them the amount of [P]495,000.00 as advance money, they would expedite the titling of the subject land. Respondent represented himself to be the lawyer of William Gatchalian, the owner of Plastic City located at Canomay Street, Valenzuela, Metro Manila, who was allegedly the buyer of the subject land once it has been titled. Respondent and Magat also represented that they have contacts at NAMREA, DENR, CENRO and the Register of Deeds which representation they knew to be false, fraudulent and were only made to induce complainants to give and deliver to them the amount of [P]495,000.00. Once in possession of the said amount, far from complying with their obligation to expedite and cause the titling of the subject land, respondent and Magat [wilfully], unlawfully and illegally misappropriated, misapplied and converted the said amount to their personal use and benefit and despite demand upon them to return the said amount, they failed and refused to do so.

In view of the deceit committed by respondent and Magat, complainants filed a complaint for Estafa against the former before the Third Municipal Circuit Trial Court, of Sto. Tomas and Minalin, Sto. Tomas, Pampanga. In the preliminary investigation conducted by the said court, it finds sufficient grounds to hold respondent and Magat for trial for the crime of Estafa defined under par. 2(a) of Art. 315 of the Revised Penal Code, as amended. The case was transmitted to the Office of the Provincial Prosecutor of Pampanga for appropriate action as per Order dated 7 December 1998.

The Assistant Provincial Prosecutor of the Office of the Provincial Prosecutor of Pampanga conducted a re-investigation of the case. During the re-investigation thereof, Magat was willing to reimburse to complainants the amount of [P]200,000.00 because according to him the amount of [P]295,000.00 should be reimbursed by respondent considering that the said amount was turned over to respondent for expenses incurred in the documentation prior to the titling of the subject land. Both respondent and Magat requested for several extensions for time to pay back their obligations to the complainants. However, despite extensions of time granted to them, respondent and Magat failed to fulfil their promise to pay back their obligation. Hence, it was resolved that the offer of compromise was construed to be an implied admission of guilt. The Asst. Provincial Prosecutor believes that there was no reason to disturb the findings of the investigating judge and an Information for Estafa was filed against respondent and Magat on 8 July 1999 before the Regional Trial Court, San Fernando, Pampanga.

The failure of the lawyer to answer the complaint for disbarment despite due notice on several occasions and appear on the scheduled hearings set, shows his flouting resistance to lawful orders of the court and illustrates his despiciency for his oath of office as a lawyer which deserves disciplinary sanction x x x.

From the facts and evidence presented, it could not be denied that respondent committed a crime that import deceit and violation of his attorney�s oath and the Code of Professional Responsibility under both of which he was bound to �obey the laws of the land.� The commission of unlawful acts, specially crimes involving moral turpitude, acts of dishonesty in violation of the attorney�s oath, grossly immoral conduct and deceit are grounds for suspension or disbarment of lawyers (Rule 138, Section 27, RRC).

The misconduct complained of took place in 1997 and complainants filed the case only on 16 April 2004. As provided for by the Rules of Procedure of the Commission of Bar Discipline, as amended, dated 24 March 2004, �A complaint for disbarment, suspension or discipline of attorneys prescribes in two (2) years from the date of the professional misconduct� (Section 1, Rule VIII).^[14]

The Investigating Commissioner recommended that:

x x x [R]espondent ATTY. PABLO A. BERNARDO be SUSPENDED for a period of TWO YEARS from receipt hereof from the practice of his profession as a lawyer and as a member of the Bar. ^[15]

On February 1, 2007, the IBP Board of Governors issued Resolution No. XVII-2007-065, viz:

RESOLVED to ADOPT and APPROVE, as it is 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 the applicable laws and rules, Atty. Pablo S. Bernardo is hereby ordered, the restitution of the amount of [P]200,000.00 within sixty (60) days from receipt of notice with Warning that if he does not return the amount with in sixty days from receipt of this Order then he will be meted the penalty of Suspension from the practice of law for one (1) year.^[16]

On May 16, 2007, the respondent promptly filed a Motion for Reconsideration^[17] of the aforesaid Resolution of the IBP. The respondent averred that: (1) the IBP resolution is not in accord with the rules considering that the complaint was filed more than two (2) years from the alleged misconduct and therefore, must have been dismissed outright; (2) he did not commit any misrepresentation in convincing Fidela to give him money to finance the titling of the land; (3) he was hired as a lawyer through Magat who transacted with Teresita as evidenced by a Memorandum of Agreement^[18] signed by the latter; (4) he was denied due process when the Investigating Commissioner considered him as in default after having ignored the representative he sent during the hearing on August 3, 2005; and (5) he long restituted the amount of P225,000.00 not as an offer of compromise but based on his moral obligation as a lawyer due to Teresita�s declaration that he had to stop acting as her legal counsel sometime in the third quarter of 1997. The respondent pointed out the admission made by Fidela in her direct testimony before the RTC that she received the amount, as evidenced by photocopies of receipts.

In an Order^[19] dated May 17, 2007 issued by the IBP, the complainant was required to comment within fifteen (15) days from receipt thereof.

In her Comment,^[20] Fidela explained that it took them quite some time in filing the administrative case because they took into consideration the possibility of an amicable settlement instead of a judicial proceeding since it would stain the respondent�s reputation as a lawyer; that the respondent went into hiding which prompted them to seek the assistance of CIDG agents from Camp Olivas in order to trace the respondent�s whereabouts; that the respondent was duly accorded the opportunity to be heard; and finally, that no restitution of the P200,000.00 plus corresponding interest has yet been made by the respondent.

On June 21, 2008, Fidela filed a Manifestation^[21] stating that the RTC rendered a decision in the criminal case for Estafa finding the accused, Atty. Bernardo and Magat �guilty of conspiracy in the commission of Estafa under Article 315 par. 2(a) of the Revised Penal Code and both are sentenced to suffer six (6) years and one (1) day of Prision Mayor as minimum to twelve (12) years and one (1) day of Reclusion Temporal as maximum.�^[22]

In a Letter^[23] dated March 23, 2009, addressed to the IBP, Fidela sought the resolution of the present action as she was already 86 years of age. Later, an Ex-parte Motion to Resolve the Case^[24] dated September 1, 2010 was filed by the complainants. In another Letter dated October 26, 2011, Fidela, being 88 years old, sought for Atty. Bernardo�s restitution of the amount of P200,000.00 so she can use the money to buy her medicine and other needs.

The Court adopts and agrees with the findings and conclusions of the IBP.

It is first worth mentioning that the respondent�s defense of prescription is untenable. The Court has held that administrative cases against lawyers do not prescribe. The lapse of considerable time from the commission of the offending act to the institution of the administrative complaint will not erase the administrative culpability of a lawyer. Otherwise, members of the bar would only be emboldened to disregard the very oath they took as lawyers, prescinding from the fact that as long as no private complainant would immediately come forward, they stand a chance of being completely exonerated from whatever administrative liability they ought to answer for.^[25]

Further, consistent with his failure to file his answer after he himself pleaded for several extensions of time to file the same, the respondent failed to appear during the mandatory conference, as ordered by the IBP. As a lawyer, the respondent is considered as an officer of the court who is called upon to obey and respect court processes. Such acts of the respondent are a deliberate and contemptuous affront on the court�s authority which can not be countenanced.

It can not be overstressed that lawyers are instruments in the administration of justice. As vanguards of our legal system, they are expected to maintain not only legal proficiency but also a high standard of morality, honesty, integrity and fair dealing. In so doing, the people�s faith and confidence in the judicial system is ensured. Lawyers may be disciplined � whether in their professional or in their private capacity � for any conduct that is wanting in morality, honesty, probity and good demeanor.^[26]

Rules 2.03 and 3.01 of the Code of Professional Responsibility read:

Rule 2.03. � A lawyer shall not do or permit to be done any act designed primarily to solicit legal business.

Rule 3.01. � A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services.

There is no question that the respondent committed the acts complained of. He himself admitted in his answer that his legal services were hired by the complainants through Magat regarding the purported titling of land supposedly purchased. While he begs for the Court�s indulgence, his contrition is shallow considering the fact that he used his position as a lawyer in order to deceive the complainants into believing that he can expedite the titling of the subject properties. He never denied that he did not benefit from the money given by the complainants in the amount of P495,000.00.

The practice of law is not a business. It is a profession in which duty to public service, not money, is the primary consideration. Lawyering is not primarily meant to be a money-making venture, and law advocacy is not a capital that necessarily yields profits. The gaining of a livelihood should be a secondary consideration. The duty to public service and to the administration of justice should be the primary consideration of lawyers, who must subordinate their personal interests or what they owe to themselves.^[27]

It is likewise settled that a disbarment proceeding is separate and distinct from a criminal action filed against a lawyer despite having involved the same set of facts. Jurisprudence has it �that a finding of guilt in the criminal case will not necessarily result in a finding of liability in the administrative case. Conversely, the respondent�s acquittal does not necessarily exculpate him administratively.�^[28]

In Yu v. Pala�a,^[29] the Court held that:

Respondent, being a member of the bar, should note that administrative cases against lawyers belong to a class of their own. They are distinct from and they may proceed independently of criminal cases. A criminal prosecution will not constitute a prejudicial question even if the same facts and circumstances are attendant in the administrative proceedings. Besides, it is not sound judicial policy to await the final resolution of a criminal case before a complaint against a lawyer may be acted upon; otherwise, this Court will be rendered helpless to apply the rules on admission to, and continuing membership in, the legal profession during the whole period that the criminal case is pending final disposition, when the objectives of the two proceedings are vastly disparate. Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are undertaken and prosecuted solely for the public welfare and for preserving courts of justice from the official ministration of persons unfit to practice law. The attorney is called to answer to the court for his conduct as an officer of the court.^[30] (Citations omitted)

As the records reveal, the RTC eventually convicted the respondent for the crime of Estafa for which he was meted the penalty of sentenced to suffer six (6) years and one (1) day of Prision Mayor as minimum to twelve (12) years and one (1) day of Reclusion Temporal as maximum. Such criminal conviction clearly undermines the respondent�s moral fitness to be a member of the Bar. Rule 138, Section 27 provides that:

SEC. 27. Disbarment and suspension of attorneys by Supreme Court, grounds therefor. � A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice or other gross misconduct in such office, grossly immoral conduct or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before the admission to practice, or for a wilful disobedience appearing as attorney for a party without authority to do so.

In view of the foregoing, this Court has no option but to accord him the punishment commensurate to all his acts and to accord the complainants, especially the 88-year old Fidela, with the justice they utmost deserve.cralaw

WHEREFORE, in view of the foregoing, respondent Atty. Pablo S. Bernardo is found guilty of violating the Code of Professional Responsibility. Accordingly, he is SUSPENDED from the practice of law for ONE (1) YEAR effective upon notice hereof.

Further, the Court ORDERS Atty. Pablo S. Bernardo (1) to RETURN the amount of P200,000.00 to Fidela Bengco and Teresita Bengco within TEN (10) DAYS from receipt of this Decision and (2) to SUBMIT his proof of compliance thereof to the Court, through the Office of the Bar Confidant within TEN (10) DAYS therefrom; with a STERN WARNING that failure to do so shall merit him the additional penalty of suspension from the practice of law for one (1) year.

Let copies of this Decision be entered in his record as attorney and be furnished the Integrated Bar of the Philippines and all courts in the country for their information and guidance.

SO ORDERED.

Carpio, (Chairperson), Brion, Perez, and Sereno, JJ., concur.

Endnotes:

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^[1] Rollo, pp. 1-3

^[2] Id. at 1-2.

^[3] Id. at 4-7.

^[4] Id. at 8-10.

^[5] Id. at 11.

^[6] Resolution dated June 2, 2004; id. at 13.

^[7] Id. at 17-18.

^[8] Id. at 17.

^[9] IBP Folder, Vol. II, p. 1

^[10] Id. at 2.

^[11] Id. at 3.

^[12] Id. at 4.

^[13] Id. at 6.

^[14] IBP Folder, Report and Recommendation, pp. 4-7.

^[15] Id. at 7.

^[16] Id. at 1.

^[17] Id. at 8-10.

^[18] Id. at 16-19.

^[19] Id. at 23.

^[20] Id. at 24-25.

^[21] Id. at 31-33.

^[22] Id. at 34.

^[23] Id. at 36.

^[24] Id. at 38-39.

^[25] Frias v. Atty. Bautista-Lozada, 523 Phil. 17, 19 (2006), citing Heck v. Santos, 467 Phil. 798 (2004).

^[26] Tomlin II v. Atty. Moya II, 518 Phil. 325, 330 (2006).

^[27] Atty. Khan, Jr. v. Atty. Simbillo, 456 Phil. 560, 565-566 (2003).

^[28] Gatchalian Promotions Talents Pools, Inc. v. Atty. Nadoza, 374 Phil. 1, 10 (1999).

^[29] A.C. No. 7747, July 14, 2008, 558 SCRA 21.

^[30] Id. at 28.