[ OCA CIRCULAR NO. 34-2004, February 27, 2004 ]

[ OCA CIRCULAR NO. 34-2004, February 27, 2004 ]

[ OCA CIRCULAR NO. 34-2004, February 27, 2004 ]

TO:

THE COURT OF APPEALS, SANDIGANBAYAN, COURT OF TAX APPEALS, REGIONAL TRIAL COURT, SHARI' A DISTRICT COURTS, METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL COURTS, MUNICIPAL CIRCUIT COURTS, THE OFFICE OF THE STATE PROSECUTOR, PUBLIC DEFENDERS OFFICE AND THE INTEGRATED BAR OF THE PHILIPPINES

SUBJECT:

DISBARNMENT OF ATTY. JOEL M. GRIJALDO

For this information and guidance of all concerned, quoted hereunder is the Decision of the Court En Banc dated; April 30, 2003" in Administrative Case No. 4724; entitled "Goretti vs; Atty. Joel M. Grijaldo",to wit:

The fiduciary duty of a lawyer and advocate is what places the law profession in a unique position of trust and confidence and distinguishes in from any other calling. Once this trust and confidence is betrayed, the faith of the people not only in the individual buyer but also in the legal profession as a whole is eroded. To this end, all members of the bar are strictly required to at all times maintain the highest degree of public confidence in the fidelity, honesty and integrity of their profession. [1] In this administrative case for disbarment, respondent Atty. Joel M. Grijaldo failed to perform his sworn duty to preserve the dignity of the legal profession.

Complaint Goretti Ong is a widow residing in Talayan Village, Quezon City. Sometime in the early part of 1996, she engaged the services of respondent, a practicing lawyer in Bacolod City, as private prosecutor in Criminal Case No. 52843 before the Metropolitan Trial Court in Cities in Bacolod City, Branch 5, against Lemuel Sembrano and Arlene Villamil for violation of Batas Pambansa Bilang 22. [2] During one of their civil obligation to complaint by paying the amount of P180,000.00. Complaint accepted the offer on the condition that payment shall be made in cash.

At the hearing held on July 17; 1996, respondent advised respondent to wait outside the courtroom. When he came out, he handed to complainant cash in the amount of P100,000.00 and Metrobank Check No. 070126386.2 for P30,000;00, postdated August 16, 1996, drawn by Atty. Roger Reyes, counsel for the accused. Complainant objected to the check payment and refused to settle the case, but lie assured her that the check was drawn by a reputable lawyer. Complainant was prevailed upon by respondent into signing an affidavit of desistance, but she instructed him not to file it in court until the check is cleared.

Upon presentment on its maturity date, the check was dishonored due to a stop-payment order from the drawer Complainant immediately informed of the dishonor, and the latter told her that he will talk to Atty. Reyes about it. Later, when complaint met with respondent in Manila, he relayed to her Atty. Reyes offer to replace the check with cash. Several weeks despite without any payment of the proceeds of the checks, despite complaint's repeated telephone calls to respondent. Sometime in December 1996, she suggested that respondent move for a hearing of the case, but he told her that courts are not inclined to set hearings near the Christmas season.

On December 17, 1996, complaint personally went to Bacolod City to inquire about the case. She was surprised to learn that the same was dismissed as early as September 26, 1996. [3] Apparently, respondent submitted her Affidavit of Desistance [4] and, on the basis therof the public prosecutor moved for the dismissal of the case which was granted by the court. When complaint confronted respondent, he admitted to her that he had already received the amount of P80,000.00 from Atty. Reyes but he used the same to may for his financial obligations.

Thus on April 2, 1997, complaint filed an Administrative Complaint against respondent for disbarment. [5]

Complaint further alleged in her complaint the respondent represented her in another case, entilted, "People of the Philippines versus Norma Mondia," also violation of B.P. 22, where she was the offended party. Respondent approached the accused. Norma Mondia and offered to delay the hearing of the case in consideration of the amount of P10,000.00. However, Mondia did not have the amount of money. Attached to the complaint is the affidavit of Norma Mondia attesting to this fact. [6]

Furthermore, Henry Tin, a former client of respondent, executed an affidavit, which is attached to the complaint, alleging that he gave respondent the amount of P3,000.00 for the purpose of posting his bail bond, but respondent did not post his bail which resulted in Tiu' s arrest. [7]

Likewise, a certain Luz Diinailig, whose affidavit is also attached to the complaint, averred, that respondent represented her as counsel for plaintiff in a civil case before the Regional Trial Court' of Bacolcd City, Branch 52; that the case was dismissed by the trial court; that the appeal filed by respondent to the Court of Appeals was dismissed due to his failure to file the appellant's brief; and that the petition for review before the Supreme Court was denied for lack of proof of service on the Court of Appeals, late filing and late payment of docket fees. Moreover, Dimailig alleged that she gave respondent the amount of P10,000.00 for settling the said civil case, but she later learned, that he did not remit the money to the defendants or their counsel. [8]

On June 25, 1997, respondent was required to file his comment within ten days from notice. [9] Respondent filed a Motion for Extension of Time, alleging that he has not received a copy of the complaint. [10] On February 5, 1998, [11] complainant- furnished respondent a copy of the" complaint. However, despite receipt of a copy,of the complaint, respondent still failed to file his comment.

On October 19, 1993, respondent was required to show cause why he should not be disciplinary dealt with or held in contempt for failing to file his comment [12] Respondent filed a Compliance, stating that the copy of the complaint he received from complainant was not legible. Complainant again furnished respondent with a clearer and more legible copy of the complaint including its annexes; but respondent still did not file his comment. Consequently, on June 14, 2000, another show cause order was issued against respondent. [13] Respondent replied by stating that the quality of the copy furnished him by complainant was worse than the first one he received.

Dissatisfied with respondent's explanation, respondent was ordered to pay a fine of P1,000.00, .which he complied with on November 27, 2000. [14] However, he again failed to file his comment and, instead, moved for additional time to file said comment.

On August 31, 2001, this case was referred to the Integrated. Bar of the Philippines (IBP) for investigation, report and recommendation. [15] The records of Hie IBP show that respondent has not filed his comment to the complaint On January 18, 2002^ the Investigating Commissioner, Manuel A. Tiuseco, submitted his report recommending the disbarment of respondent. [16] However, in its Resolution No. XV-2002-553 dated October 19, 2002, the IBP Board of Governors modified the penalty of disbarment and recommended instead respondent's indefinite suspension from the practice of law for grossly immoral conduct and deceit [17]

After a careful review of the records of this case, we find the recommendation of Commissioner Manuel A. Tiuseco well-taken.

It is clear that respondent gravely abused the trust and confidence reposed in him by his client, the complainant. Were it not for complainant's vigilance in inquiring into the status of her case, she would not have known that the same had already been dismissed on September 26,1996. Respondent deliberately withheld this fact from her, notwithstanding that she talked to him sometime in December 1996.

Canon 18 of the Code of Professional Responsibility provides that, a lawyer shall serve his client with competence and diligence. More specifically, Rule 18.03..and Rule 18.04 state:

Rule 18.03. A lawyer shall not neglect a legal matter entrusted to him ; and his negligence in connection therewith shall re-rider him liable.

Rule 18.04. A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client's request for information.

Respondent breached his duty to his client when he failed to inform complainant of Hie status of the criminal case. His negligence shows a glaring lack of the competence and diligence required "of every lawyer. [18] His infraction is rendered all the more deplorable by the fact that complainant is a resident of Quezon City and!" the case was filed in Bacolod City. It was precisely for this reason that complainant engaged the services of respondent, a BacolocUbased lawyer, so that, her interests hi the case may be amply protected:in. hex; absence. Respondent's failure to look after his client's welfare in.the-case was a gross betrayal of his fiduciary duty and a breach of the trust and confident which was reposed in him. In a similar case, we held:

it is settled that a lawyer is not obliged to act as counsel for every person who may wish to become his client. He has the right to decline employment subject , however, to the provision of Canon 14 of the Code of Professional Responsibility. Once he agrees to take up the cause of a client, he owes fidelity to such cause and must always be mindful of the trust and confidence resposed on him. Respondent Meneses, as counsel, and the obligation to inform his client of the status of the case and to respond within a reasonable time to his client's request for information. Respondent failure to communicate with his client by deliberately disregarding its request for an audience of conference is an unjustifiable denial to its right to be fully informed of the developments in and status of its case. [19]

Worse, when respondent used the money which re received from Atty. Reyes to pay for his own obligations, he violated Canon 16 of the Code of Professional Responsibility, which states that "[a] lawyer shall hold in trust all moneys and properties of his client that may come into his possession." Furthermore:

Rule16.01. A Sawyer shall account for all money or property collected or received for or from the client.

Rule 15.02. 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, ho shall have a lien over the funds anti may apply so much thereof as may be necessary to satisfy his lawful lees and disbursements; giving notice promptly thereafter to his client. He shall also have a Hen 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 misappropriation of the money entrusted to him and his refusal to .account for it to his client despite repeated demands were competent proof of his unfitness for the confidence and trust reposed on him. His acts showed a lack of personal honesty and good moral character as to render him unworthy of public confidence. He held the money in trust for his client as settlement of the case he was handling. Upon receipt thereof, he was under obligation to immediately turn it over, in His absence of a showing 'hat he had a.li«n over it As a lawyer, he should have been scrupulously careful in handling money entrusted.to him in his professional capacity, because-a-high degree-of fidelity and good faith of his part is exacted. [20]

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 client 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 consent. Respondent, by converting the money of his client to Ms own personal use without her consent, was guilty of deceit, malpractice and gross misconduct Not only he degrade himself but as an unfaithful lawyer he besmirched the fan- name of an honorable profession. [21]

Aside from violating the Code of Professional Responsibility, respondent's failure to" promptly turn over the money to his client and his conversion of the same for his personal use rendered him liable for contempt under Rule 138, Section 25 of the Rules of Court, to wit:

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.

Furthermore, respondent violated his oath of office and duties as counsel when lie approached his client's opponent and offered to delay the case in exchange for money. His offer to delay the case would have frustrated die interests of his client which he had sworn to protect. As a-lawyer, respondent should avoid any unethical or improper practices that impede, obstruct or prevent the speedy, efficient and impartial adjudication of cases. [22]

Once he agrees to take up the cause of a client, the lawyer owes fidelity to such cause and must always be mindful of the trust and confidence reposed on him. He must serve the client with competence and diligence, and champion the letter's cause with wholehearted fidelity, care, and devotion Likewise stated, he owes entire devotion to the interest of the client, warm zeal in the maintenance and defense of his clients rights, and the exertion of his utmost learning and ability to the end that nothing betaken or withheld from his client, save, by the rules-of law, legally, applied. This simply means that his client is entitled.to ibc benefit of any.and every remedy and defense thatjs authorized by fhs law of the land and he may expect his lawyer to assert every such remedy or defense. If much is demanded from an attorney, it is because the entrusted privilege to practice law carries with it the correlative duties not only to the client but also to the court, to the bar, and to the public. A lawyer who performs his duty with diligence and eerier not only protects the interest of his client; he also serves the ends of justice, does honor to the bar and helps maintain the respect of 'the community to the legal profession. [23]

Respondent's act of propositioning his client's opponent and offering to delay the case against her was intended to benefit the latter. Hence, such act amounted to double-dealing and conflict of interest and was unethical practice of law. Attorneys, like Caesar's wife, must not only keep inviolate their client's confidence, but must also avoid the appearance of treachery and double-dealing, for only then can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of justice. [24]

Finally, respondent's cavalier attitude in repeatedly ignoring the directives of tills Court to file his comment constitutes utter disrespect to the judicial institution. His conduct indicates a high degree of irresponsibility. A resolution of this Court is not to be construed as a mere request, nor should it be complied with partially, inadequately or selectively. [25] Respondent's obstinate refusal to comply therewith not only betrays a recalcitrant flaw in his character; it also underscores his disrespect of our lawful orders which is only too deserving of reproof

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 especially so, as in the instant case, 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. [26]

All told, respondent's transgressions manifested dishonesty and amounted to grave misconduct and grossly unethical behavior which caused dishonor, not only to complainant, 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. [27] He has proved himself unworthy of membership in the legal profession and must, therefore, be disbarred.

WHEREFORE, for. dishonesty, grave misconduct, and' grossly unethical behavior, respondent ATTY. JOEL GRIJALDO is DISBARRED from the practice of law. His name is ordered STRICKEN from the Roll of Attorneys. He is further directed to PAY complainant Goretti Ong the amount of P80,000.00 within ten (10) days from notice of this Decision.

This Decision shall take effect immediately. 'Copies thereof shall be furnished the Office of the Bar Confidant, to be appended to respondent's personal record; the Integrated Bar of the Philippines; the Office of the. President; the Department of Justice; the Court of Appeals; the Sandiganbayan; the Philippines Judges Association; and all courts of the land for their information and guidance.

"SO ORDERED."

Copy of the decision was received by respondent, under Registry Return Receipt. No. 52229 on June 5, 2003. Respondent's motion for reconsideration this decision was denied with finality on 29 July 2003.

__27 __ February 2004.

PRESBITERO J. VELASCO, JR.

Court Administrator

[1] Burbe v. Magulia, A. C. No. 5713, 10 June 2002, citing Sipin-Nabor v. Baterina, A. C. No. 4073, 28 June 2001, 306 SCRA 6.

[2] Rollo, pp. 2-3.

[3] Id., p. 8.

[4] Id., p. 9.

[5] Id., pp. 2-7.

[6] Id., pp. 11-12.

[7] Id., p. 13.

[8] Id., pp. 16-18.

[9] Id., p. 31.

[10] Id., p. 32-34.

[11] Id., p. 41.

[12] Id., p. 45.

[13] Id., p. 68.

[14] Id., p. 84.

[15] Id., p. 91.

[16] Id., p. 94-97.

[17] Id., p. 93.

[18] Zarate-Bustamante v. Libatique, A.C. No. 4990, 26 September 2001, 366 SCRA 8.

[19] Navarro v. Meneses, CBD A.C. No. 313, 30 January 1998, 285 SCRA 586.

[20] Id.

[21] Businos v. Ricafort, A.C. No. 43-49, 22 December 1997, 283 SCRA 407.

[22] Manila Pilots Association v. Philippine Ports Authority, G. R. No. 130150, 1 October 1998, 297 SCRA 30.

[23] Ellis v. Jacoba, A.C. No. 5505, 27 September 2001, 366 SCRA 91.

[24] Philippine National Bank v. Cedo, A.C. No. 3701, 28 March 1995, 243 SCRA 1,6.

[25] Gurrero v. Judge Deray, A.M. No. MTJ-02-1466, 10 December 2002.

[26] Manila Pilots Association v. Philippine Ports Authority, G. R. No. 130150, 1 October 1998, 297 SCRA 30.

[27] Id.