G.R. No.

100113 September 3, 1991

RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON. GUILLERMO
CARAGUE, in his capacity as Secretary of Budget and Management, respondents.

Facts:

 Christian Monsod was nominated to the position of Chairman of the COMELEC in a letter received by the Secretariat
of the CA on April 25, 1991
 Petitioner opposed the nomination because, allegedly, Monsod does not possess the required qualification of having
been engaged in law practice for at least ten years.
 June 5, 1991, CA confirmed the nomination of Monsod as COMELEC Chairman, and on June 18, 1991, he took his oath
of office and assumed office.
 Atty. Christian Monsod passed the Bar in 1960 and has been in good standing since its inception in 1972-73
 Atty. Monsod worked with the World Bank Group from 1963-1970 involved getting acquainted with the laws of
member countries negotiating loans and coordinating legal, economic, and project work of the Bank., in 1970
worked with the MERALCO Group and served as CEO of an investment bank and business conglomerate since
1986. Since 1986 he has rendered services to various companies as a legal and economic consultant or CEO. Also, a
former Secretary General (1986) and National Chairman (1987) of NAMFREL. Member of the Constitutional
Commission (1986-1987)
 Interpreted in the light of the various definitions of the term Practice of law". particularly the modern concept of law
practice, and taking into consideration the liberal construction intended by the framers of the Constitution, Atty.
Monsod's past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a
lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the poor — verily more than satisfy the
constitutional requirement — that he has been engaged in the practice of law for at least ten years. PARAS, J.:

Procedural History:

Issue(s):

Whether or not Atty. Monsod’s prior work experience considered a practice of law

Whether or not the Commission on Appointments committed grave abuse of discretion in confirming Monsod’s
appointment.

Held:

Yes , Atty. Monsod’s prior work experience was considered a practice of law as Interpreted in the light of the various
definitions of the term Practice of law". particularly the modern concept of law practice, and taking into
consideration the liberal construction intended by the framers of the Constitution, Atty. Monsod's past work
experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of
contracts, and a lawyer-legislator of both the rich and the poor — verily more than satisfy the constitutional
requirement — that he has been engaged in the practice of law for at least ten years.

No. COA’s power to give consent to the nomination of the COMELEC chairman by the President is mandated by the
Constitution under Article IX, Section 1 (2), Sub Article C. It provides:
“The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on
Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold
office for seven years, two Members for five years, and the last Members for three years, without reappointment.
Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity.”

The power of appointment is essentially within the discretion to whom it is so vested subject to the only condition that
the appointee should possess the qualification required by law. Therefore, there is no occasion for the Supreme

Applicable Rule of Law:

The 1987 Constitution provides in Section 1 (1), Article IX-C:

There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born
citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college
degree, and must not have been candidates for any elective position in the immediately preceding -elections.
However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged
in the practice of law for at least ten years. (Emphasis supplied)

Black defines "practice of law" as:

The rendition of services requires the knowledge and the application of legal principles and techniques to serve the
interest of another with his consent. It is not limited to appearing in court, or advising and assisting in the conduct of
litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings,
conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It
embraces all advice to clients and all actions taken for them in matters connected with the law. An attorney engages
in the practice of law by maintaining an office where he is held out to a be an attorney, using a letterhead describing
himself as an attorney, counseling clients in legal matters, negotiating with opposing counsel about pending litigation
and fixing and collecting fees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.)

The University of the Philippines Law Center

One may be a practicing attorney in following any line of employment in the profession. If what he does exacts knowledge
of the law and is of a kind usual for attorneys engaging in the active practice of their profession, and he follows some
one or more lines of employment such as this he is a practicing attorney at law within the meaning of the statute.
(Barr v. Cardell, 155 NW 312)

This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:

The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings
and other papers incident to actions and special proceedings, the management of such actions and proceedings on
behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action
taken for them in matters connected with the law incorporation services, assessment and condemnation services
contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim
in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and
guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments,
where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions.
(5 Am. Jr. p. 262, 263). (Emphasis supplied)

They also go to the minutes of the minuting of the committee on Constitutional Commissions and Agencies
Reasoning:

The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation, implicitly
determined that he possessed the necessary qualifications as required by law. The judgment rendered by the
Commission in the exercise of such an acknowledged power is beyond judicial interference except only upon a clear
showing of grave abuse of discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus,
only where such grave abuse of discretion is clearly shown shall the Court interfere with the Commission's judgment.
In the instant case, there is no occasion for the exercise of the Court's corrective power, since no abuse, much less a
grave abuse of discretion, that would amount to lack or excess of jurisdiction and would warrant the issuance of the
writs prayed, for has been clearly shown.

“The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on
Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold
office for seven years, two Members for five years, and the last Members for three years, without reappointment.
Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity.”

The power of appointment is essentially within the discretion to whom it is so vested subject to the only condition that
the appointee should possess the qualification required by law. Therefore, there is no occasion for the Supreme Court
to exercise its corrective power since COA did not commit grave abuse of discretion based on the evidence presented.

Questions/Comments:

[A.C. No. 5713. June 10, 2002.]

(Adm. Case No. 99-634)

DOMINADOR P. BURBE, Complainant, v. Atty. ALBERTO C. MAGULTA, Respondent.

Philippine Supreme Court Jurisprudence

Philippine Supreme Court Jurisprudence > Year 2002 > June 2002 Decisions > A.C. No. 5713 June 10, 2002 - DOMINADOR
P. BURBE v. ALBERTO C. MAGULTA:

PHILIPPINE SUPREME COURT DECISIONS

THIRD DIVISION

[A.C. No. 5713. June 10, 2002.]

(Adm. Case No. 99-634)

DOMINADOR P. BURBE, Complainant, v. Atty. ALBERTO C. MAGULTA, Respondent.

DECISION

PANGANIBAN, J.:

After agreeing to take up the cause of a client, a lawyer owes fidelity to both cause and client, even if the client never paid
any fee for the attorney-client relationship. Lawyering is not a business; it is a profession in which duty to public
service, not money, is the primary consideration.chanrob1es virtua1 1aw 1ibrary

The Case

Before us is a Complaint for the disbarment or suspension or any other disciplinary action against Atty. Alberto C.
Magulta. Filed by Dominador P. Burbe with the Commission on Bar Discipline of the Integrated Bar of the Philippines
(IBP) on June 14, 1999, the Complaint is accompanied by a Sworn Statement alleging the following:chanrob1es
virtua1 1aw 1ibrary

x x x

"That in connection with my business, I was introduced to Atty. Alberto C. Magulta, sometime in September, 1998, in his
office at the Respicio, Magulta and Adan Law Offices at 21-B Otero Building, Juan de la Cruz St., Davao City, who
agreed to legally represent me in a money claim and possible civil case against certain parties for breach of contract;

"That consequent to such agreement, Atty. Alberto C. Magulta prepared for me the demand letter and some other legal
papers, for which services I have accordingly paid; inasmuch, however, that I failed to secure a settlement of the
dispute, Atty. Magulta suggested that I file the necessary complaint, which he subsequently drafted, copy of which is
attached as Annex A, the filing fee whereof will require the amount of Twenty Five Thousand Pesos (P25,000.00);
"That having the need to legally recover from the parties to be sued I, on January 4, 1999, deposited the amount of
P25,000.00 to Atty. Alberto C. Magulta, copy of the Receipt attached as Annex B, upon the instruction that I needed
the case filed immediately;

"That a week later, I was informed by Atty. Alberto C. Magulta that the complaint had already been filed in court, and that
I should receive notice of its progress;

"That in the months that followed, I waited for such notice from the court or from Atty. Magulta but there seemed to be
no progress in my case, such that I frequented his office to inquire, and he would repeatedly tell me just to wait;

"That I had grown impatient on the case, considering that I am told to wait [every time] I asked; and in my last visit to
Atty. Magulta last May 25, 1999, he said that the court personnel had not yet acted on my case and, for my
satisfaction, he even brought me to the Hall of Justice Building at Ecoland, Davao City, at about 4:00 p.m., where he
left me at the Office of the City Prosecutor at the ground floor of the building and told to wait while he personally
follows up the processes with the Clerk of Court; whereupon, within the hour, he came back and told me that the
Clerk of Court was absent on that day;

"That sensing I was being given the run-around by Atty. Magulta, I decided to go to the Office of the Clerk of Court with
my draft of Atty. Magulta’s complaint to personally verify the progress of my case, and there told that there was no
record at all of a case filed by Atty. Alberto C. Magulta on my behalf, copy of the Certification dated May 27, 1999,
attached as Annex C;

"That feeling disgusted by the way I was lied to and treated, I confronted Atty. Alberto C. Magulta at his office the
following day; May 28, 1999, where he continued to lie to with the excuse that the delay was being caused by the
court personnel, and only when shown the certification did he admit that he has not at all filed the complaint because
he had spent the money for the filing fee for his own purpose; and to appease my feelings, he offered to reimburse me
by issuing two (2) checks, postdated June 1 and June 5, 1999, in the amounts of P12,000.00 and P8,000.00,
respectively, copies of which are attached as Annexes D and E;

"That for the inconvenience, treatment and deception I was made to suffer, I wish to complain Atty. Alberto C. Magulta for
misrepresentation, dishonesty and oppressive conduct;"

x x x. 1

On August 6, 1999, pursuant to the July 22, 1999 Order of the IBP Commission on Bar Discipline, 2 respondent filed his
Answer 3 vehemently denying the allegations of complainant "for being totally outrageous and baseless." The latter
had allegedly been introduced as a kumpadre of one of the former’s law partners. After their meeting, complainant
requested him to draft a demand letter against Regwill Industries, Inc. — a service for which the former never paid.
After Mr. Said Sayre, one of the business partners of complainant, replied to this letter, the latter requested that
another demand letter — this time addressed to the former — be drafted by respondent, who reluctantly agreed to
do so. Without informing the lawyer, complainant asked the process server of the former’s law office to deliver the
letter to the addressee.
Aside from attending to the Regwill case which had required a three-hour meeting, respondent drafted a complaint
(which was only for the purpose of compelling the owner to settle the case) and prepared a compromise agreement.
He was also requested by complainant to do the following:chanrob1es virtual 1aw library

1. Write a demand letter addressed to Mr. Nelson Tan

2. Write a demand letter addressed to ALC Corporation

3. Draft a complaint against ALC Corporation

4. Research on the Mandaue City property claimed by complainant’s wife

All of these respondent did, but he was never paid for his services by complainant.

Respondent likewise said that without telling him why, complainant later on withdrew all the files pertinent to the
Regwill case. However, when no settlement was reached, the latter instructed him to draft a complaint for breach of
contract. Respondent, whose services had never been paid by complainant until this time, told the latter about his
acceptance and legal fees. When told that these fees amounted to P187,742 because the Regwill claim was almost P4
million, complainant promised to pay on installment basis.

On January 4, 1999, complainant gave the amount of P25,000 to respondent’s secretary and told her that it was for the
filing fee of the Regwill case. When informed of the payment, the lawyer immediately called the attention of
complainant, informing the latter of the need to pay the acceptance and filing fees before the complaint could be filed.
Complainant was told that the amount he had paid was a deposit for the acceptance fee, and that he should give the
filing fee later.

Sometime in February 1999, complainant told respondent to suspend for the meantime the filing of the complaint
because the former might be paid by another company, the First Oriental Property Ventures, Inc., which had offered
to buy a parcel of land owned by Regwill Industries. The negotiations went on for two months, but the parties never
arrived at any agreement.

Sometime in May 1999, complainant again relayed to respondent his interest in filing the complaint. Respondent
reminded him once more of the acceptance fee. In response, complainant proposed that the complaint be filed first
before payment of respondent’s acceptance and legal fees. When respondent refused, complainant demanded the
return of the P25,000. The lawyer returned the amount using his own personal checks because their law office was
undergoing extensive renovation at the time, and their office personnel were not reporting regularly. Respondent’s
checks were accepted and encashed by complainant.
Respondent averred that he never inconvenienced, mistreated or deceived complainant, and if anyone had been
shortchanged by the undesirable events, it was he.

The IBP’s Recommendation

In its Report and Recommendation dated March 8, 2000, the Commission on Bar Discipline of the Integrated Bar of the
Philippines (IBP) opined as follows:jgc:chanrobles.com.ph

". . . [I]t is evident that the P25,000 deposited by complainant with the Respicio Law Office was for the filing fees of the
Regwill complaint. With complainant’s deposit of the filing fees for the Regwill complaint, a corresponding obligation
on the part of respondent was created and that was to file the Regwill complaint within the time frame contemplated
by his client, the complainant. The failure of respondent to fulfill this obligation due to his misuse of the filing fees
deposited by complainant, and his attempts to cover up this misuse of funds of the client, which caused complainant
additional damage and prejudice, constitutes highly dishonest conduct on his part, unbecoming a member of the law
profession: The subsequent reimbursement by the respondent of part of the money deposited by complainant for
filing fees, does not exculpate the respondent for his misappropriation of said funds. Thus, to impress upon the
respondent the gravity of his offense, it is recommended that respondent be suspended from the practice of law for a
period of one (1) year." 4

The Court’s Ruling

We agree with the Commission’s recommendation.

Main Issue:chanrob1es virtual 1aw library

Misappropriation of Client’s Funds

Central to this case are the following alleged acts of respondent lawyer: (a) his non-filing of the Complaint on behalf of his
client and (b) his appropriation for himself of the money given for the filing fee.

Respondent claims that complainant did not give him the filing fee for the Regwill complaint; hence, the former’s failure
to file the complaint in court. Also, respondent alleges that the amount delivered by complainant to his office on
January 4, 1999 was for attorney’s fees and not for the filing fee.

We are not persuaded. Lawyers must exert their best efforts and ability in the prosecution or the defense of the client’s
cause. They who perform that duty with diligence and candor not only protect the interests of the client, but also
serve the ends of justice. They do honor to the bar and help maintain the respect of the community for the legal
 profession. 5 Members of the bar must do nothing that may tend to lessen in any degree the confidence of the public
in the fidelity, the honesty, and integrity of the profession. 6

Respondent wants this Court to believe that no lawyer-client relationship existed between him and complainant, because
the latter never paid him for services rendered. The former adds that he only drafted the said documents as a
personal favor for the kumpadre of one of his partners.

We disagree. A lawyer-client relationship was established from the very first moment complainant asked respondent for
legal advice regarding the former’s business. To constitute professional employment, it is not essential that the client
employed the attorney professionally on any previous occasion. It is not necessary that any retainer be paid,
promised, or charged; neither is it material that the attorney consulted did not afterward handle the case for which
his service had been sought.

If a person, in respect to business affairs or troubles of any kind, consults a lawyer with a view to obtaining professional
advice or assistance, and the attorney voluntarily permits or acquiesces with the consultation, then the professional
employment is established. 7

Likewise, a lawyer-client relationship exists notwithstanding the close personal relationship between the lawyer and the
complainant or the nonpayment of the former’s fees. 8 Hence, despite the fact that complainant was kumpadre of a
law partner of respondent, and that respondent dispensed legal advice to complainant as a personal favor to the
kumpadre, the lawyer was duty-bound to file the complaint he had agreed to prepare — and had actually prepared
— at the soonest possible time, in order to protect the client’s interest. Rule 18.03 of the Code of Professional
Responsibility provides that lawyers should not neglect legal matters entrusted to them.

This Court has likewise constantly held that once lawyers agree to take up the cause of a client, they owe fidelity to such
cause and must always be mindful of the trust and confidence reposed in them. 9 They owe entire devotion to the
interest of the client, warm zeal in the maintenance and the defense of the client’s rights, and the exertion of their
utmost learning and abilities to the end that nothing be taken or withheld from the client, save by the rules of law
legally applied. 10

Similarly unconvincing is the explanation of respondent that the receipt issued by his office to complainant on January 4,
1999 was erroneous. The IBP Report correctly noted that it was quite incredible for the office personnel of a law firm
to be prevailed upon by a client to issue a receipt erroneously indicating payment for something else. Moreover,
upon discovering the "mistake" — if indeed it was one — respondent should have immediately taken steps to correct
the error. He should have lost no time in calling complainant’s attention to the matter and should have issued
another receipt indicating the correct purpose of the payment.

The Practice of Law — a

Profession, Not a Business

In this day and age, members of the bar often forget that the practice of law is a profession and not a business. 11
Lawyering is not primarily meant to be a money-making venture, and law advocacy is not a capital that necessarily
yields profits. 12 The gaining of a livelihood is not a professional but a secondary consideration. 13 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. The practice of law is a noble calling in which emolument is
a byproduct, and the highest eminence may be attained without making much money. 14

In failing to apply to the filing fee the amount given by complainant — as evidenced by the receipt issued by the law office
of respondent — the latter also violated the rule that lawyers must be scrupulously careful in handling money
entrusted to them in their professional capacity. 15 Rule 16.01 of the Code of Professional Responsibility states that
lawyers shall hold in trust all moneys of their clients and properties that may come into their possession.

Lawyers who convert the funds entrusted to them are in gross violation of professional ethics and are guilty of betrayal
of public confidence in the legal profession. 16 It may be true that they have a lien upon the client’s funds, documents
and other papers that have lawfully come into their possession; that they may retain them until their lawful fees and
disbursements have been paid; and that they may apply such funds to the satisfaction of such fees and
disbursements. However, these considerations do not relieve them of their duty to promptly account for the moneys
they received. Their failure to do so constitutes professional misconduct. 17 In any event, they must still exert all
effort to protect their client’s interest within the bounds of law.

If much is demanded from an attorney, it is because the entrusted privilege to practice law carries with it correlative
duties not only to the client but also to the court, to the bar, and to the public. 18 Respondent fell short of this
standard when he converted into his legal fees the filing fee entrusted to him by his client and thus failed to file the
complaint promptly. The fact that the former returned the amount does not exculpate him from his breach of
duty.chanrob1es virtua1 1aw 1ibrary

On the other hand, 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. Only in a clear case of misconduct that seriously affects the standing and
the character of the bar will disbarment be imposed as a penalty. 19

WHEREFORE, Atty. Alberto C. Magulta is found guilty of violating Rules 16.01 and 18.03 of the Code of Professional
Responsibility and is hereby SUSPENDED from the practice of law for a period of one (1) year, effective upon his
receipt of this Decision. Let copies be furnished all courts as well as the Office of the Bar Confidant, which is
instructed to include a copy in respondent’s file.chanrob1es virtua1 1aw 1ibrary

Sandoval-Gutierrez and Carpio, JJ., concur.

Puno, J., abroad, on official leave.

Endnotes:
1. Records, pp. 2-3.

2. Ibid., p. 15.

3. Id., at pp. 20-28.

4. Report and Recommendation, pp. 10-11; records, 261-262.

5. R. Agpalo, Legal Ethics, 1997 ed., p. 156.

6. Sipin-Nabor v. Baterina, AC No. 4073, June 28, 2001.

7. Hilado v. David, 84 Phil. 569, September 21, 1949.

8. Junio v. Grupo, AC No. 5020, December 18, 2001.

9. Aromin v. Boncavil, 315 SCRA 1, September 22, 1999.

10. Tan v. Lapak, 350 SCRA 74, January 23, 2001.

11. Cantiller v. Potenciano, 180 SCRA 246, December 18, 1989.

12. Canlas v. Court of Appeals, 164 SCRA 160, August 8, 1988.

13. R. Agpalo, supra, p. 12.

14. Ibid., p. 13.

15. Medina v. Bautista, 12 SCRA 1, September 26, 1964.

16. Sipin-Nabor v. Baterina, supra; Gonato v Adaza, 328 SCRA 694, March 27, 2000, citing Obia v. Catimbang, 196 SCRA
23, April 19, 1991.

17. Tanhueco v. De Dumo, 172 SCRA 760, April 25, 1989.

18. Aromin v. Boncavil, supra.

19. Montano v. Integrated Bar of the Phils. Et. Al., AC No. 4215, May 21, 2001.