Gisela Huyssen vs. Atty. Fred L. Gutierrez A.C. No. 6707 March 24, 2006 Facts
Gisela Huyssen vs. Atty. Fred L. Gutierrez A.C. No. 6707 March 24, 2006 Facts
GUTIERREZ
A.C. No. 6707; March 24, 2006
Facts:
A.
B.
A Complaint for disbarment was filed by Huyssen against respondent Atty. Fred
L. Gutierrez. Allegations are as follows:
that in 1995, while respondent was still connected with the Bureau of Immigration
and Deportation (BID), she (petitioner herein) and her three sons, who are all
American citizens, applied for Philippine Visas under Section 13[g] of the
Immigration Law
Respondent told the petitioner that their visa applications will be acted favourably
if they deposit a certain sum of money for a period of one year which could be
withdrawn after one year.
Complainant deposited with respondent on six different occasions from April
1995 to April 1996 the total amount of US$20,000, believing it was required by
law.
Respondent prepared receipts/vouchers as proofs that he received the amounts
deposited by the complainant but refused to give her copies of official receipts
despite her demands
Complainant demanded the deposited sum after a year but respondent failed to
return.
Thus, the World Mission for Jesus (of which complainant was a member) sent a
demand letter to respondent for the immediate return of the money
In a letter (March 9, 1999), respondent promised to release the amount not later
than 9 March 1999. But he failed to do so.
World Mission for Jesus sent another demand letter
In a letter explaining the alleged reasons for the delay in the release of deposited
amount (19 March 1999), he enclosed two blank checks postdated to 6 April and
20 April 1999 and authorized complainant to fill in the amounts.
When complainant deposited the postdated checks on their due dates, the same
were dishonored because respondent had stopped payment on the same.
In a letter (25 April 1999) respondent explained again for stopping payments and
gave complainant five postdated checks with the assurance that said checks
would be honoured
Complainant deposited the five postdated checks on their due dates but they
were all dishonored for having been drawn against insufficient funds or payment
thereon was ordered stopped by respondent.
Hence, complainant referred the matter to a lawyer who sent two demand letters
to respondent, which remained unheeded.
Complaint disbarment was filed by Huyssen in the Commission on Bar Discipline
of the Integrated Bar of the Philippines (IBP). On 15 November 2000, Victor C.
Fernandez, Director for Bar Discipline, required respondent to submit his answer
within 15 days from receipt thereof
C.
F.
G.
1)That what was used by the complainant as her show
money from the bank is not really her money but money
of World Mission for Jesus, which therefore is a serious
violation of the Immigration Law as there was a
misrepresentation. This fact was confirmed later when
the said entity sent their demand letter to the
undersigned affiant and which is attached to the
complaint-affidavit; ECISAD
2)That worst, the same amount used by the
complainant, was the very same amount used by her
son Marcus Huyssen, in obtaining his separate
permanent visa. These acts of the complainant and her
son could have been a ground for deportation and
likewise constitute criminal offense under the
Immigration Law and the Revised Penal Code. These
could have been the possible reason why complainant
was made to pay for quite huge amount.
e)That after they have secured their visas, complainant and her
family became very close to undersigned and my family that I was
even invited to their residence several times;
f)However after three years, complainant demanded the return of
their money given and surprisingly they want to recover the same
from me. By twist of fate, Atty. Mendoza is no longer around, he
died sometime 1997;
g)That it is unfortunate that the real facts of the matter is now being
hidden and that the amount of money is now being sought to be
recovered from me;
H.
11 settings of hearings were all rest by respondent, who was allegedly out of the
country to attend to his client's needs. The last, on 28 September 2004,
respondent failed to appear, despite due notice and without just cause.
5 November 2004 Investigating Commissioner Milagros V. San Juan submitted
her report recommending the disbarment of respondent
a.
Basis: From the letters sent by respondent, he made it appear that the
US$20,000 was officially deposited with the Bureau of Immigration
and Deportation. However, if this is true, how come only Petty Cash
Vouchers were issued by respondent to complainant to prove his
receipt of the said sum and official receipts therefore were never
issued by the said Bureau? Also, why would respondent issue his
personal checks to cover the return of the money to complainant if
said amount was really officially deposited with the Bureau of
Immigration? All these actions of respondent point to the inescapable
conclusion that respondent received the money from complainant and
appropriated the same for his personal use. It should also be noted
that respondent has failed to establish that the "late Atty. Mendoza"
referred to in his Counter-Affidavit really exists. There is not one
correspondence from Atty. Mendoza regarding the visa application of
complainant and his family, and complainant has also testified that
she never met this Atty. Mendoza referred to by respondent.
Considering that respondent was able to perpetrate the fraud by
taking advantage of his position with the Board of Special Inquiry of
the Bureau of Immigration and Deportation, makes it more
reprehensible as it has caused damage to the reputation and integrity
of said office. It is submitted that respondent has violated Rule 6.02 of
Canon 6 of the Code of Professional Responsibility
4 November 2004 IBP Board of Governors approved the Investigating
Commissioner's report with modification. Atty. Fred L. Gutierrez
was DISBARRED from the practice of law and ordered to return the amount
with legal interest from receipt of the money until payment.
a.
The case was also referred to the Office of the Ombudsman for
prosecution for violation of Anti-Graft and Corrupt Practices Acts and
to the Department of Justice for appropriate administrative action
Issue: WON respondent has violated Rule 6.02 of Canon 6 of the Code of Professional
Responsibility and must severely penalized.
Held: YES.
h)That the fact is I signed the vouchers and being a lawyer I know
the consequences of having signed the same and therefore I had to
answer for it and pay. I tried to raised the fund needed but up to the
present my standby loan application has not been released and
was informed that the same would only be forthcoming second
week of August. The same should have been released last March
but was aborted due to prevalent condition. The amount to be paid,
according to the complainant has now become doubled plus
attorney's fees of P200,000.00.]
D.
E.
SC explained that:
A. Lawyers in government service in the discharge of their official task have more
restrictions than lawyers in private practice. Want of moral integrity is to be more
severely condemned in a lawyer who holds a responsible public office.
B. Defense of respondent remains unsubstantiated as he failed to submit evidence
on the matter. While he claims that Atty. Mendoza already died, he did not
present the death certificate of said Atty. Mendoza. Worse, the action of
respondent in shifting the blame to someone who has been naturally silenced by
fate, is not only impudent but downright ignominious. When the integrity of a
member of the bar is challenged, it is not enough that he deny the charges
against him; he must meet the issue and overcome the evidence against him. He
must show proof that he still maintains that degree of morality and integrity which
at all times is expected of him. In the case at bar, respondent clearly fell short of
his duty. Records show that even though he was given the opportunity to answer
C.
D.
E.
the charges and controvert the evidence against him in a formal investigation, he
failed, without any plausible reason, to appear several times whenever the case
was set for reception of his evidence despite due notice. The defense of denial
proferred by respondent is, thus, not convincing. It is settled that denial is
inherently a weak defense. To be believed, it must be buttressed by a strong
evidence of non-culpability; otherwise, such denial is purely self-serving and is
with nil evidentiary value
When respondent issued the postdated checks as his moral obligation, he
indirectly admitted the charge. Such admissions were also apparent in the letters
of respondent to complainant. (lifted parts of the letter were quoted by SC
decision)
Normally, this is not the actuation of one who is falsely accused of appropriating
the money of another. As correctly observed by the Investigating Commissioner,
respondent would not have issued his personal checks if said amount were
officially deposited with the BID. This is an admission of misconduct.
WHAT WAS VIOLATED IN THE CPR?
a.
Respondent's act of asking money from complainant in consideration
of the latter's pending application for visas is violative of Rule 1.01,
which prohibits members of the Bar from engaging or participating in
any unlawful, dishonest, or deceitful acts.
b.
Moreover, said acts constitute a breach of Rule 6.02 of the Code
which bars lawyers in government service from promoting their private
interest. Promotion of private interest includes soliciting gifts or
anything of monetary value in any transaction requiring the approval of
his office or which may be affected by the functions of his office.
i. Respondent's conduct in office betrays the integrity and
good moral character required from all lawyers, especially
from one occupying a high public office. A lawyer in public
office is expected not only to refrain from any act or
omission which might tend to lessen the trust and
confidence of the citizenry in government; he must also
uphold the dignity of the legal profession at all times and
observe a high standard of honesty and fair dealing.
Otherwise said, a lawyer in government service is a keeper
of the public faith and is burdened with high degree of
social responsibility, perhaps higher than his brethren in
private practice.
ii. In a desperate attempt to put up a smoke or to camouflage
his misdeed, he went on committing another by issuing
several worthless checks, thereby compounding his case.
iii. Respondent's acts are more despicable. Not only did he
misappropriate the money of complainant; worse, he had
the gall to prepare receipts with the letterhead of the BID
and issued checks to cover up his misdeeds. Clearly, he
does not deserve to continue, being a member of the bar.
iv. Time and again, we have declared that the practice of law
is a noble profession. It is a special privilege bestowed only
upon those who are competent intellectually, academically
and morally. A lawyer must at all times conduct himself,
especially in his dealings with his clients and the public at
large, with honesty and integrity in a manner beyond
reproach. He must faithfully perform his duties to society, to
the bar, to the courts and to his clients. A violation of the
high standards of the legal profession subjects the lawyer
F.
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PCGG v SANDIGANBAYAN
*kalokohan na kaso to, 140++ pages (disclaimer) main decision 28 pages lang
Facts:
Concurring Opinions:
Panganiban & Carpio: the congruent interest prong of Rule 6.03 should
have a prescriptive period
Tinga: Rule 6.03 cannot apply retroactively to Mendoza (when he was
Solicitor General, no Rule 6.03 yet)
Bottom line, they are all questioning the unfairness of the rule if applied
without any prescriptive period and if applied retroactively
Notes:
Issue:
Genbank. This is not the matter contemplated by Rule 6.03 of the Code of
Professional Responsibility.
The matter involved in the liquidation of Genbank is entirely different from
the matter involved in the PCGG case against the Lucio Tan group.
The intervention contemplated in Rule 6.03 should be substantial and
important. The role of Mendoza in the liquidation of Genbank is considered
insubstantial.
SC is even questioning why PCGG took such a long time to revive the
motion to disqualify Mendoza. Apparently, PCGG already lost a lot of cases
against Mendoza. Kyles interpretation: PCGG getting desperate
Something to think about: SC is somehow of the opinion that Rule 6.03 will
make it harder for the government to get good lawyers in the future to work
for them because of the prohibition of accepting cases in the future that
were related to ones work as a government counsel.
Held:
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