SECOND DIVISION
A.C. No. 7428, November 25, 2019
VICTORIA C. SOUSA, COMPLAINANT, v. ATTY. J. ALBERT R. TINAMPAY, RESPONDENT.
D E C I S I O N
INTING, J.:
Once a lawyer agrees to handle a case, he is required to undertake the task with zeal, care and utmost devotion. Acceptance of money from a client establishes an attorney-client relationship and gives rise to the duty of fidelity to the client's cause.1]
For the Court's resolution is a Complaint2 for disbarment/suspension filed by Victoria C. Sousa (complainant) against Atty. J. Albert R. Tinampay (respondent) for professional misconduct and malpractice, fraud, misrepresentation and conflict of interest.
Complainant is a co-defendant in Civil Case No. 103 entitled Spouses Antonio L. Dominguez and Fe D. Dominguez v. Victoria Cabilan Sousa, et al., a case for annulment of sale. It was raffled to the Municipal Circuit Trial Court (MCTC) of Dauis, Panglao, Bohol, but was eventually dismissed for lack of jurisdiction.3 It was later refiled with the Regional Trial Court (RTC) of Tagbilaran City and docketed as Civil Case No. 6657.4 The RTC treated it as an original case. In connection with it, on January 13, 2000, complainant executed a Special Power of Attorney (SPA)5 in favor of respondent, naming, constituting, and appointing him to be her attorney-in-fact.6
According to the complainant, respondent did not enter his appearance as her counsel in the proceedings before the MCTC.7 Further, during the pre-trial of the refiled case in the RTC, complainant was declared in default since neither she nor her former counsel appeared; and although respondent was present, he remained silent and did not submit any notice for his substitution as the new counsel of the complainant. Respondent never admitted in open court that he is the legal counsel of the complainant, but he continuously accepted payment from the complainant.8
In his Comment9 and Position Paper,10 respondent countered that he was never the counsel of complainant. He insisted that Atty. Teofisto Cabilan was the counsel of record of the complainant, and that he represented complainant's co-defendants in Civil Case No. 6657.11 In fact, there was never any retainer agreement between him and complainant engaging him as counsel. He admitted though that he had billed complainant for the case and was paid P41,500.00 as referral fee.12
Under the circumstances, it is relevant to inquire whether there was a legal obligation on the part of respondent to represent complainant in said pretrial-either as regular counsel or only as counsel on special appearance for that particular occasion. What appears to be indubitable was that here was a clear obligation on the part of respondent to represent complainant in said pretrial as her attorney-in-fact, considering that she was in the United States at that time and that he was her duly designated attorney-in-fact for the Dominguez case under the relevant SPA. The rationalization of respondent that no actual prejudice was inflicted upon complainant arising from the declaration of default, even if true, is not material at all in determining his liability.
x x x x
This Commissioner finds respondent clearly negligent and unmindful of his duties to complainant with regards to the Dominguez case during the pre-trial which resulted in her being declared in default. He was present during the proceedings, supposedly representing the other co-defendants (Cuals), and yet inexplicably did not do anything to protect the interest of complainant either as attorney-in-fact or counsel on special appearance in view of the absence of regular counsel. Moreover, respondent did not report such incident at least soon enough to complainant so that appropriate action could be taken to reverse the default order.
Whether such negligence as committed in his professional capacity in that respondent failed to represent complainant as legal counsel in said pre-trial, or such negligence is in his private capacity in that he failed to represent respondent as attorney-in-fact in said pre-trial does not really matter. x x x. The Code of Professional Responsibility is replete with provisions which oblige the lawyer to observe candor, fairness and loyalty in all his dealings and transactions with his client, to be faithful to the cause of his client and to serve his client with competence and diligence. Certainly, the failure of respondent to represent and to protect the interest of complainant during the said pretrial violates such canons and could be considered a misconduct.15
It bears pointing out that the cases handled by Respondent for Complainant as well as those for her protege, the Cuals, were all brought to a successful conclusion. As to the money in question, it can be gleaned from the enumerated events and instructions of Complainant to Respondent as to how her funds should be disbursed, that she is indeed a whimsical lady who is used to getting what she wants. It is now obvious that it was only when she dealt with Respondent in an "unprofessional" manner that matters became complicated; it was then that herein Respondent rebuked her "unprofessional" demands which ultimately gave rise to the instant case.19Ultimately, the question herein is whether or not the IBP Board of Governors is correct in absolving respondent of any liability.20
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.It is axiomatic that no lawyer is obliged to act either as adviser or advocate for every person who may wish to become his client. Every lawyer has the right to decline employment but once he agrees to take on 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. At that point, he owes entire devotion to the interest of the client, warm zeal in the maintenance and defense of his client's rights, as well as the exertion of his utmost learning and ability to the end that nothing be taken or withheld from his client, save by the rules of law, legally applied. Simply put, a client is entitled to the benefit of any and every remedy authorized by the law and he may expect his lawyer to assert every such remedy or defense.30
CANON 18 - A lawyer shall serve his client with competence and diligence.
x x x x
Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable.
Rule 18.04 - A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to client's request for information.
When respondent accepted the amount of P17,000.00 from complainant, it was understood that he agreed to take up the latter's case and that an attorney-client relationship between them was established. From then on, it was expected of him to serve his client, herein complainant, with competence and attend to his cause with fidelity, care and devotion.In the present case. evidence shows that complainant availed herself of the legal services of respondent as evidenced by the SPA she executed in his favor on January 13, 2000. The pertinent portion of the document reads:
The act of receiving money as acceptance fee for legal services in handling complainant's case and subsequently failing to render such services is a dear violation of Canon 18 of the Code of Professional Responsibility which provides that a lawyer shall serve his client with competence and diligence.33
I, VICTORIA C. SOUSA, a citizen of the United States of America by marriage but a Filipino by birth, of legal age, married, temporarily residing at 182 Pres. Carlos P. Garcia North Ave., Tagbilaran City, Philippines, do hereby name, constitute, and appoint my legal counsel, Atty. J. Albert R. Tinampay, a Filipino, of legal age, married to Tita Lim-Tinampay, with office address at Bohol Quality Complex, Tagbilaran City, 6300, Philippines, to be my true and lawful attorney-in-fact, for me and in my name, place and stead, to do and perform the following acts and things to wit:As expressly stated, respondent shall represent complainant in all the cases filed for or against her. These include Civil Case No. 6657, previously docketed as Civil Case No. 103, pending before the RTC of Tagbilaran City. The SPA, considerably, categorically directed respondent to appear in all stages of the case such as the pre-trial conference. Here, respondent was present during the pre-trial stage of Civil Case No. 6657, but failed to represent complainant well enough and protect her interest either as an attorney-in-fact or by way of special appearance. Consequently, complainant was declared in default. The situation became worse when respondent failed to at least inform the complainant about the progress of the case so that proper action could be taken to reverse the default order.
To represent me before any court, person or office relative to whatever properties I have acquired wherever located in the Philippines; to appear for and in my in all stages all cases filed for or against me, including Civil Case No. 6358, RTC-Bohol, Sousa v. Dominguez, et al., Civil Case No. 103, 14th Municipal Circuit Trial Court of Dauis-Panglao, Bohol, Dominguez. et al. V. Victoria Cabilan Sousa, et al., and in all other cases that may be filed by or against me, whether it be civil, criminal. administrative or whatever: to appear in all stages, including pre-trial and amicable settlement; to sign for and in my behalf any other document relative thereto.34 (Underscoring supplied.)
Endnotes:
* Designated additional member per Special Order No. 2724 dated October 25, 2019.
1San Gabriel v. Atty. Sempio, A.C. No. 12423, March 26, 2019.
2Rollo, pp. 8-17.
3Id. at 258.
4 Referred as Civil Case No. 6577 in some parts of the rollo.
5Id. at 21.
6Id.
7Id. at 14.
8Id.
9Id. at 59-65.
10Id. at 112-126.
11Id. at 62, 117-118.
12Id. at 119, 260.
13Id. at 257-264.
14Id. at 262-263.
15Id.
16Rollo, pp. 255-256.
17Id. at 255.
18Id. at 335-336.
19Id. at 336.
20Id. at 355.
21Id. at 348-365.
22Id. at 359.
23Id. at 358.
24Id. at 360-362.
25Id. at 406-411.
26Id. at 406-407.
27Ball v. Atty. Mataro, A.C. No. 12294 (Resolution), January 30, 2019 citing Caranza Vda. De Saldivar v. Atty. Cabanes, Jr., 713 Phil. 530 (2013).
28Id.
29Id.
30United Coconut Planters Bank v. Atty. Noel, A.C. No. 3951, June 19, 2018 citing Santiago v. Atty Fojas, 318 Phil. 79, 86-87 (1995).
31 A.C. No. 3951, June 19, 2018.
32 496 Phil. 1 (2005).
33Id. at 4.
34Rollo, p. 21.
35San Gabriel v. Atty. Sempio, supra note 1.
36 721 Phil. 44 (2013).
37Id. at 53.
38 A.C. No. 12296, December 4, 2018.
39Rollo, p. 397.
40Id. at 398.
41Id. at 400.
42Id. at 401.
43Id. at 402.
44San Gabriel v. Arty. Sempio, supra note 1.