FERNANDO MARTIN O. PENA, A.C.
No. 7298
Complainant, [Formerly
CBD Case No. 05-1565]
Present:
-
versus - QUISUMBING, J.,
Chairperson,
CARPIO,
CARPIO
MORALES,
TINGA,
and
ATTY.
LOLITO G. APARICIO, VELASCO,
JR., JJ.
Respondent.
Promulgated:
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R E S O L U T I O N
Tinga,
J.:
In this administrative complaint, a
lawyer is charged with violation of Rule 19.01 of Canon 19 of the Code of
Professional Responsibility for writing a demand letter the contents of which
threatened complainant with the filing of criminal cases for tax evasion and
falsification of documents.
Atty. Lolito
G. Aparicio (respondent) appeared as legal counsel for Grace C. Hufana in an
illegal dismissal case before the National Labor Relations Commission (NLRC).
Sometime in August 2005, complainant Fernando Martin O. Pena, as President of
MOF Company, Inc. (
BUT if these
are not paid on
1. Tax
evasion by the millions of pesos of income not reported to the government.
2. Criminal
Charges for Tax Evasion
3. Criminal
Charges for Falsification of Documents
4. Cancellation
of business license to operate due to violations of laws.
These are reserved
for future actions in case of failure to pay the above amounts as settlements
in the National Labor Relations Commission (NLRC).[1]
Believing that the contents of the letter
deviated from accepted ethical standards, complainant filed an administrative
complaint[2]
with the Commission on Bar Discipline of the Integrated Bar of the Philippines
(IBP). Respondent filed an Answer with Impleader (Motion to Dismiss and
Counterclaims)[3] claiming
that Atty. Emmanuel A. Jocson, complainant’s legal counsel, also played an
important part in imputing the malicious, defamatory, and fabricated charges against
him. Respondent also pointed out that the complaint had no certification
against forum shopping and was motivated only to confuse the issues then
pending before the Labor Arbiter. By way of counterclaim, respondent asked for
damages and for the disbarment of Atty. Jocson. Respondent also asked the IBP
to endorse the prosecution of Atty. Jocson for Usurpation of Public Functions[4] and
for violation of the Notarial Law.[5]
A mandatory conference was held on
The Report and Recommendation[7] of
Investigating Commissioner Milagros V. San Juan found that complainant, failed
to file his position paper and to comply with Administrative Circular No. 04-94
requiring a certificate against forum shopping and, accordingly, recommended
the dismissal of the complaint against respondent. On P400,000,000.00), or its equivalent in dollars,
for filing the “false, malicious, defamers [sic], fraudulent, illegal
fabricators [sic], malevolent[,] oppressive, evasive filing [of] a groundless
and false suit.”[11]
Complainant thereafter filed this
Petition for Review (of the Resolution of the IBP Commission on Bar Discipline)[12]
alleging that he personally submitted and filed with the IBP his position
paper, after serving a copy thereof on respondent by registered mail. He
further alleges that he was deprived of his right to due process when the IBP
dismissed his complaint without considering his position paper and without ruling
on the merits thereof.
Complainant accordingly prays for the
reversal and setting aside of the 26 May 2006 Resolution[13]
of the IBP Board of Governors and the remand of the case to the IBP Commission
on Bar Discipline for proper adjudication and disposition on the merits.
Based on the records, there is truth
to complainant’s assertion that he filed his position paper on
Complainant, however, omitted to offer
any explanation in his petition before this Court for his failure to attach a
certification against forum shopping in his complaint against respondent.
The requirement of a certification
against forum shopping was originally required by Circular No. 28-91, dated
1997 Rules of Civil Procedure.[15] Said rule states that a violation thereof
would constitute contempt of court and be cause for the summary dismissal of
both petitions without prejudice to the taking of appropriate action against
the counsel of the party concerned.[16]
The Investigating Commissioner and
the IBP Board of Governors took against complainant his failure to attach the
certification against forum shopping to his complaint and consequently
dismissed his complaint. This Court, however, disagrees and, accordingly, grants
the petition. However, a remand of the case to the IBP would unduly prolong its
adjudication.
The Court’s determination is anchored
on the sui generis
nature of disbarment proceedings, the reasons for the certification against
forum shopping requirement, complainant’s subsequent compliance with the
requirement, and the merit of complainant’s complaint against respondent.
The Court, in the case of In re Almacen,[17]
dwelt on the sui generis
character of disciplinary proceedings against lawyers, thus:
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 is rather an investigation
by the Court into the conduct of one of its officers. Not being intended to inflict punishment, it
is in no sense a criminal prosecution.
Accordingly, there is neither a plaintiff nor a prosecutor therein. It may be initiated by the Court motu
proprio. Public interest is its 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 proved themselves no longer worthy to
be entrusted with the duties and responsibilities pertaining to the office of
an attorney. In such posture, there can thus be no occasion to speak of a
complainant or a prosecutor.[18] [Emphasis
supplied]
In view of the nature of disbarment
proceedings, the certification against forum shopping to be attached to the
complaint, if one is required at all in such proceedings, must refer to another
administrative case for disciplinary proceedings against the same respondent,
because such other proceedings or “action” is one that necessarily involves
“the same issues” as the one posed in the disbarment complaint to which the
certification is supposedly to be attached.
Further, the rationale for the
requirement of a certification against forum shopping is to apprise the Court
of the pendency of another action or claim involving
the same issues in another court, tribunal or quasi-judicial agency, and
thereby precisely avoid the forum shopping situation. Filing multiple petitions
or complaints constitutes abuse of court processes,[19]
which tends to degrade the administration of justice, wreaks havoc upon orderly
judicial procedure, and adds to the congestion of the heavily burdened dockets
of the courts.[20] Furthermore,
the rule proscribing forum shopping seeks to promote candor and transparency
among lawyers and their clients in the pursuit of their cases before the courts
to promote the orderly administration of justice, prevent undue inconvenience
upon the other party, and save the precious time of the courts. It also aims to prevent the embarrassing
situation of two or more courts or agencies rendering conflicting resolutions
or decisions upon the same issue.[21]
It is in this light that we take a
further look at the necessity of attaching a certification against forum
shopping to a disbarment complaint. It would seem that the scenario sought to
be avoided, i.e., the filing of multiple suits and the possibility of
conflicting decisions, rarely happens in disbarment complaints considering that
said proceedings are either “taken by the Supreme Court motu
proprio, or by the Integrated Bar of the
Philippines (IBP) upon the verified complaint of any person.”[22] Thus, if the complainant in a disbarment case
fails to attach a certification against forum shopping, the pendency
of another disciplinary action against the same respondent may still be
ascertained with ease. We have previously held that the rule requiring a
certification of forum shopping to accompany every initiatory pleading, “should
not be interpreted with such absolute
literalness as to subvert its own
ultimate and legitimate objective or the goal of all rules of procedure—which
is to achieve substantial justice as expeditiously as possible.”[23]
At any rate, complainant’s subsequent
compliance with the requirement cured the supposed defect in the original complaint.
The records show that complainant submitted the required certification against
forum shopping on
Finally, the intrinsic merit of complainant’s
case against respondent justifies the grant of the present petition. Respondent
does not deny authorship of the threatening letter to complainant, even
spiritedly contesting the charge that the letter is unethical.
Canon 19 of the Code of Professional
Responsibility states that “a lawyer shall represent his client with zeal
within the bounds of the law,” reminding legal practitioners that a lawyer’s
duty is not to his client but to the administration of justice; to that end,
his client’s success is wholly subordinate; and his conduct ought to and must
always be scrupulously observant of law and ethics.[24]
In particular, Rule 19.01 commands that a “lawyer shall employ only fair and
honest means to attain the lawful objectives of his client and shall not
present, participate in presenting or threaten to present unfounded criminal
charges to obtain an improper advantage in any case or proceeding.” Under this
Rule, a lawyer should not file or threaten to file any unfounded or baseless
criminal case or cases against the adversaries of his client designed to secure
a leverage to compel the adversaries to yield or withdraw their own cases
against the lawyer’s client.[25]
In the case at bar, respondent did
exactly what Canon 19 and its Rule proscribe. Through his letter, he threatened
complainant that should the latter fail to pay the amounts they propose as
settlement, he would file and claim bigger amounts including moral damages, as
well as multiple charges such as tax evasion, falsification of documents, and
cancellation of business license to operate due to violations of laws. The
threats are not only unethical for violating Canon 19, but they also amount to blackmail.
Blackmail is “the extortion of money
from a person by threats of accusation or exposure or opposition in the public
prints,…obtaining of value from a person as a condition of refraining from
making an accusation against him, or disclosing some secret calculated to
operate to his prejudice.” In common parlance and in general acceptation, it is
equivalent to and synonymous with extortion, the exaction of money either for
the performance of a duty, the prevention of an injury, or the exercise of an
influence. Not infrequently, it is extorted by threats, or by operating on the
fears or the credulity, or by promises to conceal or offers to expose the
weaknesses, the follies, or the crime of the victim.[26]
In Sps.
Boyboy v. Atty. Yabut,
Jr.,[27] we held
that “[a]n accusation for blackmail and extortion is a very serious one which,
if properly substantiated, would entail not only respondent’s disbarment from
the practice of law, but also a possible criminal prosecution.”[28]
While the respondent in Boyboy was
exonerated for lack of evidence, the same may not be said of respondent in the
present case for he admits to writing the offensive letter.
In
fact, respondent does not find anything wrong with what he wrote, dismissing
the same as merely an act of pointing out massive violations of the law by the
other party, and, with boldness, asserting that “a lawyer is under obligation
to tell the truth, to report to the government commission of offenses
punishable by the State.”[29]
He further asserts that the writing of demand letters is a standard practice
and tradition and that our laws allow and encourage the settlement of disputes.
Respondent’s assertions, however, are
misleading, for it is quite obvious that respondent’s threat to file the cases
against complainant was designed to secure some leverage to compel the latter
to give in to his client’s demands. It was not respondent’s intention to point
out complainant’s violations of the law as he so gallantly claims. Far from it,
the letter even contains an implied promise to “keep silent” about the said
violations if payment of the claim is made on the date indicated.
Indeed, the writing of demand letters
is a standard practice and tradition in this jurisdiction. It is usually done
by a lawyer pursuant to the principal-agent relationship that he has with his client,
the principal. Thus, in the performance of his role as agent, the lawyer may be
tasked to enforce his client’s claim and to take all the steps necessary to
collect it, such as writing a letter of demand requiring payment within a
specified period. However, the letter in this case contains more than just a
simple demand to pay. It even contains a threat to file retaliatory charges
against complainant which have nothing to do with his client’s claim for
separation pay. The letter was obviously designed to secure leverage to compel complainant
to yield to their claims. Indeed, letters of this nature are definitely
proscribed by the Code of Professional Responsibility.
Respondent cannot claim the sanctuary
provided by the privileged communication rule under which a private
communication executed in the performance of a legal duty is not actionable.
The privileged nature of the letter was removed when respondent used it to blackmail
complainant and extort from the latter compliance with the demands of his client.
However, while the writing of the
letter went beyond ethical standards, we hold that disbarment is too severe a
penalty to be imposed on respondent, considering that he wrote the same out of
his overzealousness to protect his client’s interests. Accordingly, the more
appropriate penalty is reprimand.
WHEREFORE, premises considered, the
petition is granted. The
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
(On
Official Leave)
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
ANTONIO T. CARPIO CONCHITA CARPIO MORALES
Associate
Justice Associate Justice
Acting Chairperson
PRESBITERO J. VELASCO,
JR.
Associate Justice
[1]Rollo, pp. 10-11.
[2]
[3]
[4]Respondent
claims that Atty. Jocson signed the administrative complaint against him
without indicating his Roll of Attorney Number.
[5]Respondent
claims that Atty. Jocson notarized the complaint despite the expiration of his notarial commission.
[6]Rollo, p. 49.
[7]
[8]
[9]
[12]
[14]
[15]Said provision states:
Sec. 5. Certification against forum shopping. ― The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice unless otherwise provided, upon motion and hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt as well as a cause for administrative sanctions.
[16]Land
Car, Inc. v. Dev’t Bachelor Express, Inc., 462 Phil. 796, 801 (2003), citing Administrative
Circular No. 04-94, April 1, 1994; Fil-Estate Golf and Development, Inc. v.
Court of Appeals, 265 SCRA 614; Prubankers Association v. Prudential
Bank & Trust Company, 302 SCRA 74.
[17]No.
L-27654,
[19]Wee
v. Galvez, G.R. No. 147394,
[20]
[21]
[22]Rules of Court, Rule 139-B, Sec. 1.
[23]Supra
note 19, at 110, citing Dar v. Alonzo-Legasto,
G.R. No. 143016, 30 August 2000, 339 SCRA 306, 309 citing Gabionza
v. Court of Appeals, G.R. No. 112547, 18 July 1994, 234 SCRA 192, 198.
[24]See E.L. Pineda, Legal and Judicial Ethics (1995 Ed.), p. 210, citing Maglasang
v. People, 190 SCRA 306.
[25]
[26]See Am. Jur. 2d,
Vol. 5, citing Hess v. Sparks, 24 P. 979, 980, 44
[27]449 Phil. 664 (2003).