THIRD DIVISION

A.C. No. 6252             October 5, 2004

JONAR SANTIAGO, complainant,
vs.
Atty. EDISON V. RAFANAN, respondent.

DECISION

PANGANIBAN, J.:

Notaries public are expected to exert utmost care in the performance of

their duties, which are impressed with public interest. They are enjoined
to comply faithfully with the solemnities and requirements of the Notarial
Law. This Court will not hesitate to mete out appropriate sanctions to
those who violate it or neglect observance thereof.

The Case and the Facts

A verified Complaint filed by Jonar Santiago, an employee of the Bureau

of Jail Management and Penology (BJMP), for the disbarment of Atty.
Edison V. Rafanan.

The Complaint was filed with the Commission on Bar Discipline (CBD)
of the Integrated Bar of the Philippines (IBP) on January 16, 2001.

It charged Atty. Rafanan with deceit; malpractice or other gross

misconduct in office under Section 27 of Rule 138 of the Rules of Court;
and violation of Canons 1.01, 1.02 and 1.03, Canon 5, and Canons
12.07 and 12.08 of the Code of Professional Responsibility (CPR).

Complainant alleged, among others, that Respondent in notarizing several

documents on different dates failed and/or refused to: a)make the proper
notation regarding the cedula or community tax certificate of the affiants;
b) enter the details of the notarized documents in the notarial register; and
c) make and execute the certification and enter his PTR and IBP numbers
in the documents he had notarized, all in violation of the notarial
provisions of the Revised Administrative Code.

"Complainant likewise alleged that Respondent executed an Affidavit in

favor of his client and offered the same as evidence in the case wherein
he was actively representing his client. Finally, Complainant alleges that
on a certain date, Respondent accompanied by several persons waited for
Complainant after the hearing and after confronting the latter disarmed
him of his sidearm and thereafter uttered insulting words and veiled
threats."

Atty. Rafanan filed his verified Answer. He admitted having administered

the oath to the affiants whose Affidavits were attached to the verified
Complaint. He believed, however, that the non-notation of their
Residence Certificates in the Affidavits and the Counter-affidavits was
allowed.

He opined that the notation of residence certificates applied only to

documents acknowledged by a notary public and was not mandatory for
affidavits related to cases pending before courts and other government
offices. He pointed out that in the latter, the affidavits, which were sworn
to before government prosecutors, did not have to indicate the residence
certificates of the affiants. Neither did other notaries public in Nueva
Ecija -- some of whom were older practitioners -- indicate the affiants’
residence certificates on the documents they notarized, or have entries in
their notarial register for these documents.

As to his alleged failure to comply with the certification required by

Section 3 of Rule 112 of the Rules of Criminal Procedure, respondent
explained that as counsel of the affiants, he had the option to comply or
not with the certification. To nullify the Affidavits, it was complainant
who was duty-bound to bring the said noncompliance to the attention of
the prosecutor conducting the preliminary investigation.

As to his alleged violation of Rule 12.08 of the CPR, respondent argued

that lawyers could testify on behalf of their clients "on substantial
matters, in cases where [their] testimony is essential to the ends of
justice." Complainant charged respondent’s clients with attempted
murder. Respondent averred that since they were in his house when the
alleged crime occurred, "his testimony is very essential to the ends of
justice."

Respondent alleged that it was complainant who had threatened and

harassed his clients after the hearing of their case by the provincial
prosecutor . Respondent requested the assistance of the Cabanatuan City
Police the following day, January 5, 2001, which was the next scheduled
hearing, to avoid a repetition of the incident and to allay the fears of his
clients. In support of his allegations, he submitted Certifications10 from
the Cabanatuan City Police and the Joint Affidavit11 of the two police
officers who had assisted them.
Lastly, he contended that the case had been initiated for no other purpose
than to harass him, because he was the counsel of Barangay Captain
Ernesto Ramos in the cases filed by the latter before the ombudsman and
the BJMP against complainant.

After receipt of respondent’s Answer, the CBD, through Commissioner

Tyrone R. Cimafranca, set the case for hearing on June 5, 2001, at two
o’clock in the afternoon. Notices12 of the hearing were sent to the parties
by registered mail. On the scheduled date and time of the hearing, only
complainant appeared. Respondent was unable to do so, apparently
because he had received the Notice only on June 8, 2001. 13 The hearing
was reset to July 3, 2001 at two o’clock in the afternoon.

On the same day, June 5, 2001, complainant filed his Reply 14 to the
verified Answer of respondent. The latter’s Rejoinder was received by the
CBD on July 13, 2001.15 It also received complainant’s Letter-
Request16 to dispense with the hearings. Accordingly, it granted that
request in its Order17 dated July 24, 2001, issued through Commissioner
Cimafranca. It thereby directed the parties to submit their respective
memoranda within fifteen days from receipt of the Order, after which the
case was to be deemed submitted for resolution.

The CBD received complainant’s Memorandum18 on September 26,

2001. Respondent did not file any.

The IBP’s Recommendation

IBP Board of Governors issued Resolution No. XVI-2003-172 approving

and adopting the Investigating Commissioner’s Report that respondent
had violated specific requirements of the Notarial Law on the execution
of a certification, the entry of such certification in the notarial register,
and the indication of the affiant’s residence certificate. The IBP Board of
Governors found his excuse for the violations unacceptable. It modified,
however, the recommendation of the investigating commissioner by
increasing the fine to "₱3,000 with a warning that any repetition of the
violation will be dealt with a heavier penalty."

The other charges -- violation of Section 27 of Rule 138 of the Rules of

Court; and Canons 1.01 to 1.03, 12.07 and 12.08 of the CPR -- were
dismissed for insufficiency of evidence.

The Court’s Ruling

We agree with the Resolution of the IBP Board of Governors.

 Respondent’s Administrative Liability

Violation of the Notarial Law

The Notarial Law is explicit on the obligations and duties of notaries

public. They are required to certify that the party to every document
acknowledged before them has presented the proper residence certificate
(or exemption from the residence tax); and to enter its number, place of
issue and date as part of such certification. They are also required to
maintain and keep a notarial register; to enter therein all instruments
notarized by them; and to "give to each instrument executed, sworn to, or
acknowledged before [them] a number corresponding to the one in [their]
register [and to state therein] the page or pages of [their] register, on
which the same is recorded." Failure to perform these duties would result
in the revocation of their commission as notaries public.23

These formalities are mandatory and cannot be simply neglected,

considering the degree of importance and evidentiary weight attached to
notarized documents. Notaries public entering into their commissions are
presumed to be aware of these elementary requirements.

In Vda. de Rosales v. Ramos,24 the Court explained the value and

meaning of notarization as follows:

"The importance attached to the act of notarization cannot be

overemphasized. Notarization is not an empty, meaningless, routinary act.
It is invested with substantive public interest, such that only those who
are qualified or authorized may act as notaries public. Notarization
converts a private document into a public document thus making that
document admissible in evidence without further proof of its authenticity.
A notarial document is by law entitled to full faith and credit upon its
face. Courts, administrative agencies and the public at large must be able
to rely upon the acknowledgment executed by a notary public and
appended to a private instrument."

For this reason, notaries public should not take for granted the solemn
duties pertaining to their office. Slipshod methods in their performance of
the notarial act are never to be countenanced. They are expected to exert
utmost care in the performance of their duties, 25 which are dictated by
public policy and are impressed with public interest.

It is clear from the pleadings before us -- and respondent has readily

admitted -- that he violated the Notarial Law by failing to enter in the
documents notations of the residence certificate, as well as the entry
number and the pages of the notarial registry.

Respondent believes, however, that noncompliance with those

requirements is not mandatory for affidavits relative to cases pending
before the courts and government agencies. He points to similar practices
of older notaries in Nueva Ecija.

We cannot give credence to, much less honor, his claim. His belief that
the requirements do not apply to affidavits is patently irrelevant. No law
dispenses with these formalities. Au contraire, the Notarial Law makes no
qualification or exception. It is appalling and inexcusable that he did
away with the basics of notarial procedure allegedly because others were
doing so. Being swayed by the bad example of others is not an acceptable
justification for breaking the law.

We note further that the documents attached to the verified Complaint are
the Joint Counter-Affidavit of respondent’s clients Ernesto Ramos and
Rey Geronimo, as well as their witnesses’ Affidavits relative to Criminal
Case No. 69-2000 for attempted murder, filed by complainant’s brother
against the aforementioned clients. These documents became the basis of
the present Complaint.

As correctly pointed out by the investigating commissioner, Section 3 of

Rule 112 of the Rules of Criminal Procedure expressly requires
respondent as notary -- in the absence of any fiscal, state prosecutor or
government official authorized to administer the oath -- to "certify that he
has personally examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits." Respondent failed
to do so with respect to the subject Affidavits and Counter-Affidavits in
the belief that -- as counsel for the affiants -- he was not required to
comply with the certification requirement.

It must be emphasized that the primary duty of lawyers is to obey the

laws of the land and promote respect for the law and legal
processes.26 They are expected to be in the forefront in the observance
and maintenance of the rule of law. This duty carries with it the
obligation to be well-informed of the existing laws and to keep abreast
with legal developments, recent enactments and jurisprudence.27 It is
imperative that they be conversant with basic legal principles. Unless
they faithfully comply with such duty, they may not be able to discharge
competently and diligently their obligations as members of the bar.
Worse, they may become susceptible to committing mistakes.
Where notaries public are lawyers, a graver responsibility is placed upon
them by reason of their solemn oath to obey the laws.28 No custom or age-
old practice provides sufficient excuse or justification for their failure to
adhere to the provisions of the law. In this case, the excuse given by
respondent exhibited his clear ignorance of the Notarial Law, the Rules of
Criminal Procedure, and the importance of his office as a notary public.

Nonetheless, we do not agree with complainant’s plea to disbar

respondent from the practice of law. The power to disbar must be
exercised with great caution.29 Disbarment will be imposed as a penalty
only in a clear case of misconduct that seriously affects the standing and
the character of the lawyer as an officer of the court and a member of the
bar. Where any lesser penalty can accomplish the end desired, disbarment
should not be decreed.30 Considering the nature of the infraction and the
absence of deceit on the part of respondent, we believe that the penalty
recommended by the IBP Board of Governors is a sufficient disciplinary
measure in this case.

Lawyer as Witness for Client

Complainant further faults respondent for executing before Prosecutor

Leonardo Padolina an affidavit corroborating the defense of alibi
proffered by respondent’s clients, allegedly in violation of Rule 12.08 of
the CPR: "A lawyer shall avoid testifying in behalf of his client."

Rule 12.08 of Canon 12 of the CPR states:

"Rule 12.08 – A lawyer shall avoid testifying in behalf of his client,

except:

a) on formal matters, such as the mailing, authentication or custody of an

instrument and the like;

b) on substantial matters, in cases where his testimony is essential to the

ends of justice, in which event he must, during his testimony, entrust the
trial of the case to another counsel."

Parenthetically, under the law, a lawyer is not disqualified from being a

witness,31 except only in certain cases pertaining to privileged
communication arising from an attorney-client relationship.32

The reason behind such rule is the difficulty posed upon lawyers by the
task of dissociating their relation to their clients as witnesses from that as
advocates. Witnesses are expected to tell the facts as they recall them. In
contradistinction, advocates are partisans -- those who actively plead and
defend the cause of others. It is difficult to distinguish the fairness and
impartiality of a disinterested witness from the zeal of an advocate. The
question is one of propriety rather than of competency of the lawyers who
testify for their clients.

"Acting or appearing to act in the double capacity of lawyer and witness

for the client will provoke unkind criticism and leave many people to
suspect the truthfulness of the lawyer because they cannot believe the
lawyer as disinterested. The people will have a plausible reason for
thinking, and if their sympathies are against the lawyer’s client, they will
have an opportunity, not likely to be neglected, for charging, that as a
witness he fortified it with his own testimony. The testimony of the
lawyer becomes doubted and is looked upon as partial and untruthful."33

Thus, although the law does not forbid lawyers from being witnesses and
at the same time counsels for a cause, the preference is for them to refrain
from testifying as witnesses, unless they absolutely have to; and should
they do so, to withdraw from active management of the case.34

Notwithstanding this guideline and the existence of the Affidavit

executed by Atty. Rafanan in favor of his clients, we cannot hastily make
him administratively liable for the following reasons:

First, we consider it the duty of a lawyer to assert every remedy and

defense that is authorized by law for the benefit of the client, especially in
a criminal action in which the latter’s life and liberty are at stake. 35 It is
the fundamental right of the accused to be afforded full opportunity to
rebut the charges against them. They are entitled to suggest all those
reasonable doubts that may arise from the evidence as to their guilt; and
to ensure that if they are convicted, such conviction is according to law.

Having undertaken the defense of the accused, respondent, as defense

counsel, was thus expected to spare no effort to save his clients from a
wrong conviction. He had the duty to present -- by all fair and honorable
means -- every defense and mitigating circumstance that the law
permitted, to the end that his clients would not be deprived of life, liberty
or property, except by due process of law.36

The Affidavit executed by Atty. Rafanan was clearly necessary for the
defense of his clients, since it pointed out the fact that on the alleged date
and time of the incident, his clients were at his residence and could not
have possibly committed the crime charged against them. Notably, in his
Affidavit, complainant does not dispute the statements of respondent or
suggest the falsity of its contents.

Second, paragraph (b) of Rule 12.08 contemplates a situation in which

lawyers give their testimonies during the trial. In this instance, the
Affidavit was submitted during the preliminary investigation which, as
such, was merely inquisitorial.37 Not being a trial of the case on the
merits, a preliminary investigation has the oft-repeated purposes of
securing innocent persons against hasty, malicious and oppressive
prosecutions; protecting them from open and public accusations of crime
and from the trouble as well as expense and anxiety of a public trial; and
protecting the State from useless and expensive prosecutions. 38 The
investigation is advisedly called preliminary, as it is yet to be followed by
the trial proper.

Nonetheless, we deem it important to stress and remind respondent to

refrain from accepting employment in any matter in which he knows or
has reason to believe that he may be an essential witness for the
prospective client. Furthermore, in future cases in which his testimony
may become essential to serve the "ends of justice," the canons of the
profession require him to withdraw from the active prosecution of these
cases.

No Proof of Harassment

The charge that respondent harassed complainant and uttered insulting

words and veiled threats is not supported by evidence. Allegation is never
equivalent to proof, and a bare charge cannot be equated with
liability.39 It is not the self-serving claim of complainant but the version
of respondent that is more credible, considering that the latter’s
allegations are corroborated by the Affidavits of the police officers and
the Certifications of the Cabanatuan City Police.

WHEREFORE, Atty. Edison V. Rafanan is found guilty of violating the

Notarial Law and Canon 5 of the Code of Professional Responsibility and
is hereby FINED ₱3,000 with a warning that similar infractions in the
future will be dealt with more severely.

SO ORDERED.

Sandoval-Gutierrez, Corona, and Carpio Morales

A.C. No. 4808               November 22, 2011

TERESITA T. BAYONLA, Complainant,
vs.
ATTY. PURITA A. REYES, Respondent.

DECISION

BERSAMIN, J.:

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 lawful
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.

- Code of Professional Responsibility.

This canon of professional responsibility is at the center of this

administrative complaint for disbarment for gross dishonesty, deceit,
conversion, and breach of trust filed against Atty. Purita A. Reyes by
Teresita T. Bayonla, her client.1

Antecedents

Petra Durban and Paz Durban were sisters who had jointly owned a
parcel of land situated in Butuan City in their lifetimes. They died
without leaving a will. Their land was thereafter expropriated in
connection with the construction of the Bancasi Airport. An expropriation
compensation amounting to ₱2,453,429.00 was to be paid to their heirs.
Bayonla and her uncle, Alfredo Tabada (Alfredo), were the compulsory
heirs of Paz, being, respectively, Paz’s granddaughter and son.2

Bayonla alleged that she and Alfredo had engaged the legal services of
Atty. Reyes to collect their share in the expropriation compensation from
the Air Transportation Office (ATO), Cagayan De Oro City, 3 agreeing to
her attorney’s fees of 10% of whatever amount would be collected;

November 1993, Atty. Reyes had collected ₱1 million from the ATO;
that Bayonla’s share, after deducting Atty. Reyes’ attorney’s fees, would
be ₱75,000.00, but Atty. Reyes had delivered to her only ₱23,000.00, and
had failed to deliver the balance of ₱52,000.00 despite repeated demands;
On June 5, 1995, Atty. Reyes had collected the amount of ₱121,119.11
from the ATO; that Bayonla’s share, after deducting Atty. Reyes’
attorney’s fees, would be ₱109,007.20, but Atty. Reyes had handed her
only ₱56,500.00, and had failed to deliver the balance of ₱52,507.20;

Bayonla charged Atty. Reyes with gross dishonesty, deceit, conversion,

breach of trust and should be disbarred for depriving her of her just share.

In her comment That she had given to Bayonla more than what had been
due to her

That Alfredo had received from the ATO the check for the second
release corresponding to the share of both Bayonla and Alfredo;

That Alfredo had gotten more than Bayonla out of the second release;

That on June 5, 1995 she had received out of the second release by the
ATO only her 40% contingent fee;

That Bayonla and Alfredo had agreed to bear the expenses for the
collection of their share;

That she had incurred travel and other expenses in collecting such share;
and that she should be absolved from liability arising from the complaint.

IBP Commissioner Lydia A. Navarro (Commissioner Navarro) rendered

a report, whereby she found and recommended against Atty. Reyes as
follows:

In so far as this case of disbarment is concerned, the issue hinges only on

the complainant’s position; one of the heirs of Paz Durban whose legal
services of the respondent was not revoked.

The parties were required to submit documents relative to their respective

defenses (sic) specially the actual amounts released by ATO, actual
amount due to the complainant as her share, the remittances made by the
respondent to the complainant of her share and receipts to prove the
same.

Unfortunately, only the respondent filed an answer without the necessary

documents required of them and attached only a xerox copy of the
computation made by Atty. Ismael Laya for the heir of Pedro Durban
which had already been previously attached to the records of this case.
In the said computation it appears that for the release on February 17,
1993, the heirs of Durban received ₱84,852.00 and for the second release
each of them as well as the complainant was entitled ₱121,119.11. It
could be inferred from here that complainant was supposed to received
(sic) ₱205,971.11 as her share.

Considering that complainant was supposed to receive the amount due

her which was ₱123,582.66 and actually received only ₱79,000.00; then
respondent still has to remit to complainant the amount of ₱44,582.66.

From the records of this case respondent alleged that she only collected
the 40% attorney’s fees for the second release whereby Alfredo Tabada
the other heir of Paz Durban received the check from ATO and got a
large part of the same. Respondent did not mention how much she got as
attorney’s fees against complainant’s share but on the whole amounting
to ₱496,895.00 which is unfair to the complainant.

As counsel for the heirs of Paz Durban, complainant herein should have
been advised by the respondent and given a breakdown of whatever
amount was received or came to her knowledge as complainant’s counsel.
Short of the foregoing, respondent violated Rule 16.01 Canon 16 Chapter
III of the Code of Professional Responsibility; to wit:

"Rule 16.01 – A lawyer shall account for all money or property collected
or received for or from the client."

Respondent was given a chance to rectify whatever errors or misgivings

(sic) she had done for her client but she unfortunately failed to do so and
did not comply with the Order dated October 29, 1998.

Wherefore, in view of the foregoing, the Undersigned respectfully

recommends that the respondent be required to render an accounting or
inventory duly confirmed by the complainant of all the collected shares
due the complainant and remit to the latter the said amount of
₱44.582.66;

Until such time that respondent had complied with the aforementioned,
she is suspended from the practice of her legal profession.

Respectfully submitted.

On June 19, 1999, the IBP Board of Governors adopted and approved the
report of Commissioner Navarro through Resolution No. XIII-99-165.8
Atty. Reyes moved for reconsideration, but on September 27, 1999 the
IBP Board of Governors denied her motion for reconsideration through
Resolution No. XIV-99-117.9

Atty. Reyes then filed a motion for reinvestigation. However, through its
Resolution No. XV-2001-111 adopted on July 28, 2001, the IBP Board of
Governors denied the motion for reinvestigation for lack of jurisdiction,
stating that the matter had already been endorsed to the Court.10

On July 30, 2002, the Court directed the IBP Board of Governors to
report on whether Atty. Reyes had already accounted for and remitted the
amount of ₱44,582.66 to Bayonla.11

On August 22, 2002, the IBP Board of Governors informed the Court that
per the manifestation of Bayonla’s counsel Atty. Reyes had not yet
rendered an accounting and had not yet remitted the amount of
₱44,582.66 to Bayonla.12

Through her manifestation dated September 4, 2002 to the Court,13 Atty.

Reyes posed some queries, as follows: (a) whether she could be
compelled to pay the amount of ₱44,582.66 to Bayonla even if the latter’s
claims had been based on perjured statements; (b) whether the payment
of the amount would operate to dismiss the estafa case previously filed by
Bayonla against her for allegedly failing to deliver the balance of
Bayonla’s share; and (c) whether she could deposit the amount of
₱44,582.66 with either the IBP Board of Governors or the Court.

Atty. Reyes also stated in the manifestation that the IBP Board of
Governors did not accord to her the right to confront Bayonla during the
investigation conducted by the IBP Board of Governors; that Bayonla’s
counsel had induced Bayonla to file the estafa charge against her; and that
this had prompted her to initiate a disbarment complaint against
Bayonla’s counsel.14

On May 24, 2010, the Office of the Bar Confidant (OBC) recommended
the final resolution of this case.15 The recommendation was noted by the
Court on June 29, 2010.16

Issue

Whether or not the findings and recommendations of the IBP Board of

Governors were proper.

Ruling
We affirm the findings of the IBP Board of Governors, which were
supported by the records, but we modify the sanctions to be imposed on
Atty. Reyes.

I
Respondent was guilty of violating the canons
of the Code of Professional Responsibility

Canon 16 of the Code of Professional Responsibility requires that a

lawyer shall hold in trust all moneys and properties of her client that may
come into her possession. Rule 16.01 of Canon 16 imposes on the lawyer
the duty to account for all money or property collected or received for or
from the client. Rule 16.03 of Canon 16 demands that the lawyer shall
deliver the funds and property of his client when due or upon demand,
subject to the lawyer’s lien over the funds, or the lawyer’s option to apply
so much of the funds as may be necessary to satisfy the lawful fees and
disbursements, giving notice promptly thereafter to the client.

The canons are appropriate considering that the relationship between a

lawyer and her client is highly fiduciary, and prescribes on a lawyer a
great degree of fidelity and good faith. There is no question that the
money or property received by a lawyer for her client properly belongs to
the latter.17 Conformably with these canons of professional responsibility,
we have held that a lawyer is obliged to render an accounting of all the
property and money she has collected for her client. This obligation
includes the prompt reporting and accounting of the money collected by
the lawyer by reason of a favorable judgment to his client.18

Based on the records, Bayonla and her uncle would each receive the
amount of ₱84,852.00 out of the first release, and the amount of
₱121,119.11 out of the second release. Her total share from the two
releases was ₱205,971.11. With Atty. Reyes being entitled to ₱82,388.44
as attorney’s fees, the equivalent of 40% of Bayonla’s share, the net share
of Bayonla was ₱123,582.67. Yet, Atty. Reyes actually delivered to her
only ₱79,000.00,19 which was short by ₱44,582.67. Despite demands by
Bayonla and despite the orders from the IBP Board of Governors for her
to remit the shortage,20 Atty. Reyes refused to do so.

By not delivering Bayonla’s share despite her demand, Atty. Reyes

violated the aforestated canons. The money collected by Atty. Reyes as
the lawyer of Bayonla was unquestionably money held in trust to be
immediately turned over to the client.21 The unjustified withholding of
money belonging to the client warrants the imposition of disciplinary
sanctions on the lawyer.22 Without doubt, Atty. Reyes’ failure to
immediately account for and to deliver the money upon demand was
deceit, for it signified that she had converted the money to her own use, in
violation of the trust Bayonla had reposed in her. It constituted gross
misconduct for which the penalty of suspension from the practice of law
became justified pursuant to Section 27, Rule 138 of the Rules of Court,
to wit:

Section 27. Disbarment or 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 admission to practice, or for a wilful disobedience appearing as an
attorney for a party to a case without authority so to do. The practice of
soliciting cases at law for the purpose of gain, either personally or
through paid agents or brokers, constitutes malpractice.

The disbarment or suspension of a member of the Philippine Bar by a

competent court or other disciplinary agency in a foreign jurisdiction
where he has also been admitted as an attorney is a ground for his
disbarment or suspension if the basis of such action includes any of the
acts hereinabove enumerated.

The judgment, resolution or order of the foreign court or disciplinary

agency shall be prima facie evidence of the ground for disbarment or
suspension. (As amended by SC Resolution dated February 13, 1992.)

II
Pendency of other cases not an obstacle
to administrative proceeding against respondent

The filing of the perjury charge by Atty. Reyes against Bayonla and of
the estafa charge by Bayonla against Atty. Reyes could not halt or excuse
the duty of Atty. Reyes to render an accounting and to remit the amount
due to Bayonla. Nor did the pendency of such cases inhibit this
administrative matter from proceeding on its due course. It is indisputable
that the pendency of any criminal charges between the lawyer and her
client does not negate the administrative proceedings against the lawyer.
We explained why in Suzuki v. Tiamson ,23 to wit:

The settled rule is that criminal and civil cases are different from
administrative matters, such that the disposition in the first two will not
inevitably govern the third and vice versa. In this light, we refer to this
Court’s ruling in Berbano vs. Barcelona, citing In re Almacen, where it
was held:

Disciplinary proceedings against lawyers are sui generis. Neither purely

civil nor purely criminal, they do not involve a trial of an action or a suit,
but rather investigations by the Court into the conduct of one of its
officers. Not being intended to inflict punishment, [they are] in no sense a
criminal prosecution. Accordingly, there is neither a plaintiff nor a
prosecutor therein. [They] may be initiated by the Court motu proprio.
Public interest is [their] primary objective, and the real question for
determination is whether or not the attorney is still a fit person to be
allowed the privileges as such. Hence, in the exercise of its disciplinary
powers, the Court merely calls upon a member of the Bar to account for
his actuations as an officer of the Court with the end in view of
preserving the purity of the legal profession and the proper and honest
administration of justice by purging the profession of members who by
their misconduct have prove[n] themselves no longer worthy to be
entrusted with the duties and responsibilities pertaining to the office of an
attorney.

Hence, our only concern in the instant case is the determination of

respondent’s administrative liability and our findings herein should not in
any way be treated as having any material bearing on any other judicial
action which the parties may choose to file against each other. [emphasis
supplied]

Relevantly, we have also emphasized in Gatchalian Promotions Talents

Pool, Inc. v. Naldoza 24 that –

xxx a finding of guilt in the criminal case will not necessarily result in a
finding of liability in the administrative case. Conversely, respondent’s
acquittal does not necessarily exculpate him administratively. In the same
vein, the trial court’s finding of civil liability against the respondent will
not inexorably lead to a similar finding in the administrative action before
this Court. Neither will a favorable disposition in the civil action absolve
the administrative liability of the lawyer.

It serves well to mention, lastly, that the simultaneous pendency of an

administrative case and a judicial proceeding related to the cause of the
administrative case, even if the charges and the evidence to be adduced in
such cases are similar, does not result into or occasion any unfairness, or
prejudice, or deprivation of due process to the parties in either of the
cases.25
 III
No denial of due process to respondent

Atty. Reyes contends that she was denied her right to due process because
the IBP Board of Governors did not permit her to personally confront the
complainant.

We do not consider Atty. Reyes’s contention valid. She was accorded full
due process, for she in fact participated in all stages of the proceedings.

It is true that a lawyer shall not be disbarred or suspended from the

practice of law until she has had full opportunity upon reasonable notice
to answer the charges against her, to produce witnesses in her behalf, and
to be heard by herself or counsel. 26 Contrary to Atty. Reyes’ insistence,
however, the IBP Board of Governors was under no legal obligation to
conduct a trial-type proceeding at which she could have personally
confronted Bayonla. In other words, the lack of such proceeding neither
diminished her right to due process nor deprived her of the right. A
formal investigation entailing notice and hearing is required in
administrative proceedings for disbarment, but the imperative need of
notice and hearing does not always mean the holding of an adversarial
trial-type proceeding. Due process is still satisfied when the parties are
afforded the reasonable opportunity to be heard and to submit evidence in
support of their respective sides.27 As the Court said in Samalio v. Court
of Appeals:28

Due process in an administrative context does not require trial-type

proceedings similar to those in courts of justice. Where opportunity to be
heard either through oral arguments or through pleadings is accorded,
there is no denial of procedural due process. A formal or trial-type
hearing is not at all times and in all instances essential. The requirements
are satisfied where the parties are afforded fair and reasonable
opportunity to explain their side of the controversy at hand. The standard
of due process that must be met in administrative tribunals allows a
certain degree of latitude as long as fairness is not ignored. In other
words, it is not legally objectionable for being violative of due process for
an administrative agency to resolve a case based solely on position
papers, affidavits or documentary evidence submitted by the parties as
affidavits of witnesses may take the place of their direct testimony.

In this case, petitioner was heard through the various pleadings which he
filed with the Board of Discipline of the BID when he filed his answer
and two motions to dismiss, as well as other motions and papers. He was
also able to participate in all stages of the administrative proceeding. He
was able to elevate his case to the Secretary of Justice and, subsequently,
to the CSC by way of appeal.

We have consistently held that the essence of due process is simply the
opportunity to be heard or, as applied to administrative proceedings, the
opportunity to explain one’s side or the opportunity to seek a
reconsideration of the action or ruling complained of. And any seeming
defect in its observance is cured by the filing of a motion for
reconsideration. Denial of due process cannot be successfully invoked by
a party who has had the opportunity to be heard on his motion for
reconsideration. [bold emphasis supplied]

Nevertheless, the IBP Board of Governors actually conducted a formal

investigation of the complaint against Atty. Reyes upon the directive of
the Court. In her formal investigation of the complaint, Commissioner
Navarro allowed both parties to submit their respective proofs on the
actual amounts released by the ATO, the amounts due to Bayonla as her
share, Atty. Reyes’ corresponding contingent fees, the remittances by
Atty. Reyes to Bayonla, and the receipts showing such remittances. 29 In
due course, Atty. Reyes submitted her written answer, attaching to the
answer the documents supporting her defenses. 30 Commissioner Navarro
took all of Atty. Reyes’ submissions into good and proper account, as
borne out by her report.31 And even after the IBP Board of Governors had
adopted Commissioner Navarro’s report (and its recommendation), Atty.
Reyes was still afforded the fair opportunity to challenge the adverse
findings by filing her motion for reconsideration, although such motion
was ultimately resolved against her.32

IV
Sanction

The penalty for gross misconduct consisting in the failure or refusal

despite demand of a lawyer to account for and to return money or
property belonging to a client has been suspension from the practice of
law for two years. In Almendarez, Jr. v. Langit,33 the lawyer who
withdrew the rentals pertaining to his client totaling ₱255,000.00 without
the knowledge of the client and who ignored the demand of the client to
account for and to return the amount was suspended from the practice of
law for two years. In Mortera v. Pagatpatan,34 the lawyer received
₱155,000.00 from the adversary of his clients as partial payment of a final
and executory decision in favor of the clients pursuant to a secret
arrangement between the lawyer and the adversary, and deposited the
amount to the lawyer’s personal bank account without the knowledge of
the clients; the lawyer thereafter refused to surrender the money to his
clients. The suspension of the lawyer for two years from the practice of
law was ordered by the Court. In Small v. Banares,35 a similar penalty of
suspension for a period of two years from the practice of law was
imposed on a lawyer who had failed to file a case for the purpose of
which he had received an amount of ₱80,000.00, and to return the amount
upon demand. In Barcenas v. Alvero,36 the Court suspended for a period
of two years from the practice of law a lawyer who had failed to
immediately account for and to return ₱300,000.00 received from a client
for the purpose of depositing it in court, after the lawyer had been found
not to have deposited the money in court.

Considering that the sin of Atty. Reyes had striking resemblance with the
sins thus sanctioned in the aforementioned precedents, the proper penalty
for her is suspension from the practice of law for two years, with warning
that a similar offense by her will be dealt with more severely.

Atty. Reyes is further obliged to pay to Bayonla the amount of

₱44,582.67, which the IBP Board of Governors found to be still unpaid,
by way of restitution. Although the Court renders this decision in an
administrative proceeding primarily to exact the ethical responsibility on
a member of the Philippine Bar, the Court’s silence about the respondent
lawyer’s legal obligation to restitute the complainant will be both unfair
and inequitable. No victim of gross ethical misconduct concerning the
client’s funds or property should be required to still litigate in another
proceeding what the administrative proceeding has already established as
the respondent’s liability. That has been the reason why the Court has
required restitution of the amount involved as a concomitant relief in the
cited cases of Mortera v. Pagatpatan, supra, Almendarez, Jr. v. Langit,
supra, and Small v. Banares, supra.

In addition, Atty. Reyes is liable for interest of 12% per annum reckoned
from June 22, 1997, the date when she was formally charged with
disbarment. This rate of interest was prescribed by the Court in
Almendarez, Jr. v. Langit and Small v. Banares.

WHEREFORE, the Court FINDS AND PRONOUNCES ATTY.

PURITA A. REYES guilty of violating Rule 16.01 and Rule 16.03 of
Canon 16 of the Code of Professional Responsibility, and SUSPENDS
her from the practice of law for a period of two years effective upon
receipt of this Decision, with warning that a similar offense by her will be
dealt with more severely.
The Court ORDERS Atty. Reyes to pay to complainant Teresita T.
Bayonla within 30 days from receipt of this Decision the amount of
₱44,582.67, with interest of 12% per annum from June 22, 1997, and to
render unto the complainant a complete written accounting and inventory
of: - (a) the amounts she had collected from the Air Transportation Office
as expropriation compensation; (b) the total amount due to the
complainant; (c) the total amount she had actually remitted to the
complainant; and (d) the amount she had deducted as her contingent fee
vis-à-vis the complainant.1âwphi1

Within the same period of compliance, Atty. Reyes shall submit to the
Court, through the Office of the Bar Confidant, authentic written proof
that her accounting, inventory, and payment were furnished to and
received by the complainant in due course.

This Decision is without prejudice to any pending or contemplated

proceedings against Atty. Reyes.

Let this Decision be disseminated to all lower courts and to the Integrated
Bar of the Philippines, with a copy of it to be included in Atty. Reyes’ file
in the Office of the Bar Confidant.

SO ORDERED.