A.C. No. 9976 [Formerly CBD Case No. 09-2539], June 25, 2014 - ALMIRA C. FORONDA, Complainant, v. ATTY. JOSE L. ALVAREZ, JR., Respondent.
This refers to the complaint1
for disbarment filed before the Integrated Bar of the Philippines, Commission on Bar Discipline (IBP-CBD) by Almira C. Foronda (complainant) against Atty. Jose L. Alvarez, Jr. (respondent) for the following alleged infractions:chanRoblesvirtualLawlibrary
Fraud and deceit in luring [the complainant] in transacting business with [the respondent];
Dishonesty and misrepresentation when [the respondent] misinformed [the complainant] that [her] annulment case was already filed when in fact it was not;
Issuing unfunded checks as payment for [the respondent’s] obligations to [the complainant];
Violation of Canon 15.06 of the Code of Professional Responsibilities when [the respondent] represented to [the complainant] that he know[s] of court personnel who will help facilitate [the complainant’s] annulment case;
Violation of Canons 16.01 and 16.03 for failure to return [the complainant’s] money despite numerous demands; and
Violation of Canon 18.04 when [the respondent] misinformed [the complainant] regarding the status of [her] annulment case.2
The complainant is an overseas Filipino worker in Dubai. In May 2008, she returned to the Philippines to institute a case for the nullification of her marriage. The respondent was referred to her and the complainant agreed to engage his services for a fee of P195,000.00 to be paid as follows: 50% or P100,000.00 upon the signing of the contract; 25% or P50,000.00 on or before June 10, 2008; and 25% or P45,000.00 before the filing of the case.3
The complainant paid the amounts as agreed. The amount of P45,000.00 was even paid on June 10, 2008,4
after being informed by the respondent that the petition for the annulment of marriage was ready for filing.
The complainant averred that the respondent promised to file the petition after he received the full payment of his attorney’s fee, or on June 11, 2008. In September 2008, the complainant inquired about the status of her case and was allegedly told by the respondent that her petition was pending in court; and in another time, she was told that a decision by the court was already forthcoming. However, when she came back to the country in May 2009, the respondent told her that her petition was still pending in court and apologized for the delay. Eventually, the complainant was able to get a copy of her petition and found out that it was filed only on July 16, 2009.5cralawred
The complainant further alleged in her complaint that the week after she signed the contract of service with the respondent, the latter requested for a meeting. Thinking that they were going to discuss her case, she agreed. But during the meeting, the respondent invited her to be an investor in the lending business allegedly ran by the respondent’s sister-in-law.6
The respondent encouraged her to invest P200,000.00 which he said can earn five percent (5%) interest per month.
The complainant finally agreed on the condition that the respondent shall issue personal and post-dated checks in her favor dated the 10th of each month starting July 2008 until June 10, 2009, representing the five percent (5%) interest that the complainant’s money shall earn. Thus, the complainant gave P200,000.00 to the respondent upon the security of thirteen (13) United Coconut Planters Bank (UCPB) checks. Eleven (11) of said checks were for P8,000.00 each. The other two (2) checks dated June 8, 2009 and June 10, 2009 were for P100,000.00 and P108,000.00, respectively.7cralawred
According to the complainant, upon presentment of these checks, the drawee-bank honored the first two (2) checks, but the rest were dishonored for being drawn against a closed account. When she brought the matter to the respondent, he promised to pay her in cash. He actually paid her certain amounts as interest through her representative. Nevertheless, the respondent failed to pay the entire obligation as promised. Thereafter, the respondent issued eight (8) Banco de Oro (BDO) checks as replacement for the dishonored UCPB checks. However, the BDO checks were likewise dishonored for being drawn against a closed account.8cralawred
In his Answer,9
the respondent admitted that he filed the petition for annulment only in July 2009 but this was not due to his own fault. The delay was caused by the complainant herself who allegedly instructed him to hold the filing of the said petition as she and her husband were discussing a possible reconciliation.10
He further claimed that he filed the petition on July 16, 2009 after negotiations with the complainant’s husband apparently failed.11cralawred
The respondent also admitted that he invited the complainant to be a partner in a lending business and clarified that the said business was being managed by a friend. He further stated that he was also involved in the said business as a partner.12cralawred
The respondent admitted that only the first two (2) of the checks he issued were honored by the drawee-bank. He stated that prior to the presentment and dishonor of the rest of the UCPB checks, he advised the complainant that the third check should not be deposited just yet due to losses in their lending business caused by the failure of some borrowers to settle their obligations.13
Apart from the foregoing, the respondent denied most of the allegations in the complaint, including the dishonor of the BDO checks, for lack of sufficient information to form a belief as to the truth thereof.14cralawred
By way of special and affirmative defense, the respondent asserted the following: that it was the complainant who owed him notarial fee amounting to P80,000.00 as he notarized a deed of conditional sale executed between her and a certain Rosalina A. Ruiz over a real property worth P4,000,000.00;15
and that the contract he executed with the complainant was a mere contract of loan. Being a contract of loan, he cannot be held guilty of violation of Batas Pambansa Bilang
22 (B.P. Blg. 22) since the checks he issued were to serve only as security for it.16cralawred
The parties were called to a mandatory conference before the IBP-CBD on January 18, 2010 by the Investigating Commissioner.17
Thereafter, the parties were required to submit their respective position paper.
In an undated Report,18
the Investigating Commissioner made the following factual findings:chanRoblesvirtualLawlibrary
From the foregoing, it appears that the following facts are not disputed. The complainant is an overseas Filipino worker based in Dubai. During her vacation in the Philippines in May 2008, she contracted the services of respondent to file a petition for the annulment of her marriage for an agreed packaged fee of [P]195,000.00 which she paid in full by June 2008. Respondent, however, filed the petition for the annulment of her marriage only in July 2009. In the meantime, more specifically in June 2008, respondent obtained [P]200,000.00 from complainant with the promise to pay the same with interest at 4% per month starting July 2008 until June 2009. Respondent issued complainant eleven (11) checks for [P]8,000.00 each postdated checks monthly from 10 July 2008 until 10 May 2009 plus a check for [P]108,000.00 payable on 10 June 2009 and another check for [P]100,000.00 payable on 8 June 2009. When presented for payment, the first two (2) checks were good but the rest of the checks were dishonored for being drawn against a closed account. When complainant demanded payment, respondent issued to her eight (8) new replacement postdated checks dated 25th of every month from June 2009 to January 2010. All of the replacement checks, however, were likewise dishonored for being drawn against a closed account. When respondent was unable to pay respondent, complainant filed a criminal complaint against him for violation of BP 22 before the Office of the City Prosecutor of Muntinlupa. The criminal complaint was eventually dismissed after complainant executed an affidavit of desistance after she was paid a certain amount by respondent.19
The Investigating Commissioner found that there was basis to hold the respondent liable, to wit:chanRoblesvirtualLawlibrary
1. Respondent Atty. Alvarez, Jr. is guilty of delay in the filing of the petition for annulment of the marriage of complainant for almost a year. Initially, in his Answer, he claims that the delay was due to the instruction of complainant to hold in abeyance the filing of the petition as she and her husband discussed possible reconciliation. In his Position Paper, he claims that the delay was due to the failure of the complainant to submit to an interview by the psychologist and the time it took him to research on the guidelines on the matter. Finally, in his Supplemental Affidavit, he admits the delay and apologizes for it. For delaying in filing the petition for complainant, respondent should be deemed guilty of violating Canons 17 and 18 of the Code of Professional Responsibility which pertinent read:chanRoblesvirtualLawlibrary
CANON 17 – A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.2. Respondent lied about the delay. The allegations of complainant about how respondent lied to her about the delay in the filing of the petition are very detailed. While denying he misrepresented to complainant that the petition has been filed when it was not, respondent did not care to refute also in detail the allegations of complainant. In his Answer, he simply denied the same for the reason [that] he has no sufficient information to form a belief as to the truth thereof. It should be noted, however, that the allegations pertains [sic] to things respondent said and did[,] and are therefore[,] matters which he knew or should have known. His denial is therefore tantamount to an admission. In doing so, respondent is guilty of violating not only Canon 15 but also Rule 18.04 of the Code of Professional Responsibility, which read:chanRoblesvirtualLawlibrary
CANON 18. – A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE[.]
Rule 18.03 – A lawyer shall not neglect a legal matter entrusted to him, and the negligence in connection therewith shall render him liable.
x x x x
CANON 15. – A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENT.3. Respondent induced complainant to lend him money at 5% interest per month but failed to pay the same. This is admitted by respondent. Rule 16.04 provides that a lawyer shall not borrow money from his client unless the client’s interests are fully protected by the nature of the case or by independent advice. Obviously, respondent borrowed money from his client and his client’s interest was not fully protected. In fact, respondent repeatedly failed to comply with his promise to pay complainant. The fact that he subsequently paid complainant more than the amount due from him as part of the settlement of the criminal complaint filed by her against him hardly serves to mitigate his liability. x x x.
Rule 18.04 – A lawyer shall keep his client informed of the status of his case and shall respond within a reasonable time to the client’s request for information.
x x x x
4. He issued two sets of checks which were dishonored when presented for payment. This is admitted by respondent. x x x.20
The Investigating Commissioner, thereby, recommended the penalty of two years suspension from the practice of law with a warning that a repetition of the offenses shall merit a heavier penalty.21cralawred
In a Resolution dated December 14, 2012, the Board of Governors of the IBP adopted and approved with modification the findings of the Investigating Commissioner. It directed the suspension of the respondent from the practice of law for one year with warning that repetition of the similar conduct shall be dealt with more severely.22cralawredThe Court’s Ruling
At the outset, it must be stressed that “[a] lawyer, by taking the lawyer’s oath, becomes a guardian of the law and an indispensable instrument for the orderly administration of justice.”23
He can be disciplined for any conduct, in his professional or private capacity, which renders him unfit to continue to be an officer of the court.24
For of all classes and professions, it is the lawyer who is most sacredly bound to uphold the laws, for he is their sworn servant.25cralawred
“Disbarment of lawyers is a proceeding that aims to purge the law profession of unworthy members of the bar. It is intended to preserve the nobility and honor of the legal profession.”26
Therefore, it is incumbent upon this Court to determine the full extent of the respondent’s liability, and to impose the proper penalty therefor.
It was established that the complainant engaged the professional services of the respondent. She expected the immediate filing of the petition for the nullity of her marriage after the full payment of attorney’s fees on June 10, 2008. However, the respondent filed the said petition only on July 16, 2009. The respondent gave out different reasons for the delay in an attempt to exculpate himself. At the end, the respondent admitted the delay and apologized for it. It cannot be gainsaid that the complainant through her agent was diligent in following up the petition. The different excuses proffered by the respondent also show his lack of candor in his dealings with the complainant.
“Once a lawyer 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 in him.”27
“[H]e is required by the Canons of Professional Responsibility to undertake the task with zeal, care and utmost devotion.”28
“A lawyer who performs his duty with diligence and candor 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.”29cralawred
Anent the P200,000.00 which was received by the respondent from the complainant, the respondent argued that it was a loan and not really meant to be the latter’s investment in any money-lending business. At any rate, the respondent issued 13 UCPB checks to serve as security for the alleged loan; among which, only two of said checks were honored by the drawee-bank while the rest were dishonored for having been drawn against a closed account. By reason of said dishonor, the respondent paid certain amounts in cash to the complainant as interest to the said loan. Ultimately, the respondent issued eight BDO checks as replacement for the dishonored UCPB checks. However, the BDO checks were also dishonored due to the same reason – they were drawn against a closed account.
The respondent’s act of issuing worthless checks is a violation of Rule 1.01 of the Code of Professional Responsibility which requires that “a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.”30
“[T]he issuance of checks which were later dishonored for having been drawn against a closed account indicates a lawyer’s unfitness for the trust and confidence reposed on him, shows such lack of personal honesty and good moral character as to render him unworthy of public confidence, and constitutes a ground for disciplinary action.”31cralawred
It cannot be denied that the respondent’s unfulfilled promise to settle his obligation and the issuance of worthless checks have seriously breached the complainant’s trust. She went so far as to file multiple criminal cases for violation of B.P. Blg. 22 against him. “The relationship of an attorney to his client is highly fiduciary. Canon 15 of the Code of Professional Responsibility provides that ‘a lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his client.’ Necessity and public interest enjoin lawyers to be honest and truthful when dealing with his client.”32cralawred
All told, this Court finds that the respondent is liable for violation of Canons 15,33
and Rule 16.0436
of the Code of Professional Responsibility. Likewise, he is also liable under Rule 1.0137
thereof pursuant to our ruling in Co v. Atty. Bernardino
The complainant seeks the disbarment of the respondent. However, “[d]isbarment, jurisprudence teaches, should not be decreed where any punishment less severe, such as reprimand, suspension, or fine, would accomplish the end desired. This is as it should be considering the consequence of disbarment on the economic life and honor of the erring person.”39cralawred
“The severity of disbarment or suspension proceedings as the penalty for an attorney’s misconduct has always moved the Court to treat the complaint with utmost caution and deliberate circumspection.”40
While the Court has the plenary power to discipline erring lawyers through this kind of proceedings, it does so in the most vigilant manner so as not to frustrate its preservative principle. The Court, in the exercise of its sound judicial discretion, is inclined to impose a less severe punishment if through it the end desired of reforming the errant lawyer is possible.41cralawred
In Baldado v. Mejica,42
the Court found Atty. Aquilino A. Mejica guilty of violating Canon 18 of the Code of Professional Responsibility for his negligence in protecting the interest of his client, and suspended him from the practice of law for a period of three months, with a warning that a repetition of the same or a similar act will be dealt with more severely.
In Solidon v. Macalalad
the Court imposed on Atty. Ramil E. Macalalad (Atty. Macalalad) the penalty of six months suspension from the practice of law for violations of Rule 16.01 and Rule 18.03 of the Code of Professional Responsibility. In said case, Atty. Macalalad failed to file the required petition and did not account for the money he received, as attorney’s fee, from the complainant.
In Junio v. Atty. Grupo,44
Atty. Salvador M. Grupo was found guilty of violating Rule 16.04 of the Code of Professional Responsibility for borrowing money from his client and was suspended from the practice of law for a period of one month.
In Wong v. Atty. Moya II
Atty. Salvador N. Moya II was ordered suspended from the practice of law for two years, because aside from issuing worthless checks and failure to pay his debts, he also had seriously breached his client’s trust and confidence to his personal advantage and had shown a wanton disregard of the IBP orders in the course of its proceedings.
Further, in Wilkie v. Atty. Limos
the Court held, to wit:chanRoblesvirtualLawlibrary
In Barrios v. Martinez, we disbarred the respondent who issued worthless checks for which he was convicted in the criminal case filed against him.
In Lao v. Medel, we held that the deliberate failure to pay just debts and the issuance of worthless checks constitute gross misconduct, for which a lawyer may be sanctioned with one-year suspension from the practice of law. The same sanction was imposed on the respondent-lawyer in Rangwani v. Dino having been found guilty of gross misconduct for issuing bad checks in payment of a piece of property the title of which was only entrusted to him by the complainant.
But in Barrientos v. Libiran-Meteoro, we meted out only a six-month suspension to Atty. Elerizza Libiran-Meteoro for having issued several checks to the complainants in payment of a pre-existing debt without sufficient funds, justifying the imposition of a lighter penalty on the ground of the respondent’s payment of a portion of her debt to the complainant, unlike in the aforementioned Lao and Rangwani cases where there was no showing of any restitution on the part of the respondents.47 (Citations omitted and emphases ours)
In the instant case, the Court very well takes note of the fact that the criminal charges filed against the respondent have been dismissed upon an affidavit of desistance executed by the complainant.48
The Court also acknowledges that he dutifully participated in the proceedings before the IBP-CBD and that he completely settled his obligation to the complainant, as evidenced by the Acknowledgment Receipt signed by the complainant’s counsel. Therein, it was acknowledged that the respondent paid the amount of P650,000.00 in payment for the: (1) P200,000.00 for the amount of checks he issued in favor of the complainant; (2) P195,000.00 for the attorney’s fees he received for the annulment case; and (3) cost and expenses that the complainant incurred in relation to the cases the latter filed against the respondent including the instant complaint with the IBP.49
Unlike in Solidon
where the respondent failed to file the required petition and did not account for the money he received, the respondent was able to file, albeit belatedly, the complainant’s petition. In addition, he returned in full the money he received as attorney’s fee in spite of having gone through all the trouble of preparing the required petition and in filing the same – not to mention the cost he incurred for the purpose.50cralawred
In light of the foregoing and the Court’s rulings in the cases mentioned above, the Court finds that the penalty of six months suspension from the practice of law is commensurate, with a stern warning that a repetition of any of the infractions attributed to him in this case, or any similar act, shall merit a heavier penalty.WHEREFORE,
respondent Atty. Jose L. Alvarez, Jr. is SUSPENDED FOR SIX (6) MONTHS
from the practice of law with a stern warning that a repetition of any of the offenses involved in this case or a commission of similar acts will merit a more severe penalty. Let a copy of this Decision be entered in Atty. Jose L. Alvarez, Jr.’s record as a member of the Bar, and notice of the same be served on the Integrated Bar of the Philippines, and on the Office of the Court Administrator for circulation to all courts in the country.SO ORDERED.Sereno, C.J., (Chairperson), Leonardo-De Castro, Bersamin,
and Villarama, Jr., JJ.,
1Rollo, pp. 2-19.
2 Id. at 2.
3 Id. at 20.
4 Id. at 5.
5 Id. at 53-61.
6 Id. at 3-4.
7 Id. at 4-5.
8 Id. at 6-8, 12-13.
9 Id. at 82-88.
10 Id. at 83.
11 Id. at 85.
12 Id. at 83.
13 Id. at 84.
14 Id. at 85.
15 Id. at 85-86.
16 Id. at 86.
17 Id. at 101.
18 Id. at 183-189.
19 Id. at 187.
20 Id. at 187-188.
21 Id. at 188-189.
22 Id. at 182.
23 Manzano v. Atty. Soriano, 602 Phil. 419, 426-427 (2009).
24de Chavez-Blanco v. Atty. Lumasag, Jr., 603 Phil. 59, 65 (2009).
25Lorenzana v. Atty. Fajardo, 500 Phil. 382, 388 (2005).
26 Arma v. Atty. Montevilla, 581 Phil. 1, 8 (2008).
27Baldado v. Mejica, A.C. No. 9120, March 11, 2013, 693 SCRA 1, 13.
28Cerdan v. Gomez, A.C. No. 9154, March 19, 2012, 668 SCRA 394, 402.
29 Baldado v. Mejica, supra note 27.
30Co v. Atty. Bernardino, 349 Phil. 16, 23 (1998).
31Wong v. Atty. Moya II, 590 Phil. 279, 289 (2008).
32Overgaard v. Atty. Valdez, 588 Phil. 422, 431 (2008).
33 CANON 15 – A LAWYER SHALL OBSERVE CANDOR AND FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENT.
34 CANON 17 – A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.
35 Rule 18.04 – A lawyer shall keep his client informed of the status of his case and shall respond within a reasonable time to the client’s request for information.
36 Rule 16.04 – A lawyer shall not borrow money from his client unless the client’s interests are fully protected by the nature of the case or by independent advice.
37 Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral and deceitful conduct.
38 349 Phil. 16 (1998).
39Anacta v. Resurreccion, A.C. No. 9074, August 14, 2012, 678 SCRA 352, 365.
40Seares, Jr. v. Gonzales-Alzate, A.C. No. 9058, November 14, 2012, 685 SCRA 397, 402.
41 Arma v. Atty. Montevilla, supra note 26.
42 A.C. No. 9120, March 11, 2013, 693 SCRA 1.
43 A.C. No. 8158, February 24, 2010, 613 SCRA 472.
44 423 Phil. 808 (2001).
45 590 Phil. 279 (2008).
46 591 Phil. 1 (2008).
47 Id. at 10-11.
48Rollo, p. 135.
49 Id. at 137.