Republic of the
Supreme Court
THIRD DIVISION
|
AURORA D. CERDAN, Petitioner, - versus - ATTY. CARLO
GOMEZ, Respondent. |
|
A.C. No. 9154 (Formerly CBD No.
07-1965) Present: VELASCO, JR., J., Chairperson, PERALTA, ABAD, PERLAS-BERNABE,
JJ. Promulgated: March 19, 2012 |
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R E S O L U T I
O N
MENDOZA, J.:
Before the Court is the undated Resolution[1] of the
Board of Governors of the Integrated Bar of the
The case stemmed from the affidavit-complaint[2] of
Aurora D. Cerdan (complainant), filed before the Committee on Bar
Discipline of the IBP on P152,000.00 but only
the amount of P100,000.00 was reflected in the receipt.
Complainant claimed that she authorized Atty. Gomez,
thru a special power of attorney (SPA), to settle Rufinos savings
account in FCB-Quezon branch; that the original agreement of a 50-50 sharing
between complainant and the children of Rufino, as proposed by the FCB counsel,
was replaced by the Compromise Agreement entered into by Atty. Gomez, wherein
the heirs of Rufino got 60% of the share while she only received 40%; that Atty.
Gomez included in the Compromise Agreement the savings account in FCB-Narra
Branch when the scope of the SPA was only the account in FCB-Quezon branch;
that Atty. Gomez took her bank book for the FCB account in Narra Branch containing
deposits in the amount of more or less P165,000.00 and never returned it
to her; and that Atty. Gomez withdrew from her FCB accounts and thereafter gave
the amount of P290,000.00 and uttered, ITO NA LAHAT ANG PERA MO AT ANG SA AKIN
NAKUHA KO NA.
Complainant
also
narrated that sometime in 2000, Atty. Gomez was her
counsel in a case against a certain Romeo Necio (Necio) and paid him
attorneys fees and judicial fee in the amount of P15,000.00, and P8,000.00,
respectively; that the parties agreed to settle amicably and decided that Atty.
Gomez would collect from Necio the amount agreed upon; and that as of the
filing of the complaint, Atty. Gomez has yet to remit to complainant the amount
of P12,000.00.
On
In his Answer,[4] Atty.
Gomez admitted that Rufino engaged his legal services in various cases. He,
however, denied the accusations stated in the complaint-affidavit filed by
complainant.
Atty. Gomez averred that he was not aware that
Rufino and complainant were not legally married because they represented
themselves as husband and wife so the cases filed in court were under the names
of spouses Benjamin and Aurora Rufino and that he only learned of said fact
upon the death of Rufino in December 2004. Atty. Gomez claimed that when he had
learned that complainant was not the legal wife, he exerted earnest effort to
locate the surviving heirs of Rufino and substitute them in the cases filed in
court; that he informed complainant of the consequences of her status and
relationship with the late Rufino including her possible denial of any share
from his estate; and that he advised complainant that he would make extra
effort to persuade the legitimate heirs of Rufino to discuss a possible settlement
and share in the estate or ask for compassion if she would be denied her share
in the estate.
With respect to the uncollected amounts, Atty. Gomez
denied the same and said that all the documents relating to the indebtedness
were in the name of Rufino and that he could not do anything if the legitimate
heirs of Rufino collected the same from the debtors.
As to the savings account in FCB-Quezon branch,
Atty. Gomez explained that said account was in the name of Rufino; that he
negotiated with the legitimate heirs of Rufino for the share of the complainant;
and that the proceeds thereof, in the amount of
₱442,547.88, were properly turned over to complainant as evidenced
by an acknowledgment receipt.
Thereafter, the Commission of Bar Discipline through
Commissioner Jose Dela Rama, Jr. (Commissioner Dela Rama) conducted a
mandatory conference and thereafter required the parties to submit their
verified position papers. Upon filing of their respective position papers, the
case was submitted for resolution.
In his Report and Recommendation,[5]
Commissioner Dela Rama wrote his findings as follows:
That it appears on record that
complainant granted the respondent a Special Power of Attorney the specific
powers of which are as follows:
1.
To enter into amicable settlement of my account with
the First Consolidated Bank, Quezon
Branch with Savings Account No.
30-0201-01020-0. (Underlining supplied)
2.
To agree to such matters as they may deem fit and
proper to be done in connection with the said savings account
3.
To withdraw the said amount as agreed on the
settlement, receive and sign for and in my behalf.
The Special Power of Attorney
appears to have been signed and notarized on
It appears further that as
alleged, the complainant maintains two accounts at First Consolidated Bank. One
is in Quezon, Palawan Branch in the amount of ₱442,547.88. The other account being maintained at FBC Narra Branch contains
an amount equivalent to ₱165,000.00, more or
less.
According to the complainant, she
did not authorize the respondent to enter into a settlement with respect to the
properties left by Benjamin Rufino.
X x x x
To begin with, respondent was
given a Special Power of Attorney with respect to FCB Quezon account. That as far
as the respondent can recall the account with FCB Quezon Branch had ₱1 million, more or less.
COMM. DE LA RAMA: At that time, how much is the amount of deposit in FCB
Quezon?
Atty. Gomez: I believe, Your Honor, its Php1 million.
COMM. DE LA RAMA: How much is the Narra Branch?
Atty. Gomez: I am not aware, Your Honor. In fact, I have not even seen
the bank account passbook.
(TSN pages 30-31,
Based on the Compromise Agreement marked
as Annex F, with respect to Quezon Branch with account No. 3030-0201-0102-0,
the same shall be divided as follows: 60 percent goes to the heirs of Benjamin
Rufino, Jr. and 40 percent goes to Aurora Cerdan who was then presented by the
respondent. This time, it was Atty. Gomez who signed the said agreement by
virtue of the Special Power of Attorney dated
While it is clear that in the
Compromise Agreement where the complainant was supposed to receive 40% refers
to FCB Quezon Branch, it cannot also be denied that in the same Compromise
Agreement it speaks of FCB Narra Branch which, as admitted by the respondent,
he has no authority to bind the complainant.
But in the said Compromise
Agreement, it cannot be denied that the respondent entered into an agreement
with respect to FCB Narra Branch. Portion of the agreement reads as follows:
X x x x
The first question is, when the
respondent entered into a Compromise Agreement on
The undersigned Commissioner
believes that the respondent acted beyond the powers granted to him by virtue
of the Special Power of Attorney.
It is very specific that the
respondent was only authorized to enter into an amicable settlement with
respect to FCB Quezon Branch and not with the account in FCB Narra Branch.
X x x x
The respondent, despite the fact
that he was not armed with a particular
document authorizing him to enter into an agreement with respect to Narra
account, entered and signed a compromise agreement to the prejudice and
surprise of his client. In effect, he forfeited the lawful share of his client
with respect to FCB Narra Branch.
X x x x
According to the complainant, the
amount of cash that was given to the respondent amounted to ₱152,000.00 as attorneys fees. The respondent got
the money at her house in Quezon,
Respondent on the other hand,
during the preliminary conference stated the following:
COMM. DE LA RAMA, JR.: What I am asking you is did
you receive Php100,000.00 from the services rendered from Mrs. Cerdan?
Atty. Gomez: Your Honor, please. That is the reason
why I likewise fired out my secretary.
COMM. DE LA RAMA, JR.: Why, did you not receive Php
100,000.00?
Atty. Gomez: I deny that I received
Php100,000.00, Your Honor.
COMM. DE LA RAMA, JR.: So you are telling us that it
was your secretary who received the ₱100,000.00.
Atty. Gomez: Probably, Your Honor.
COMM. DE LA RAMA, JR.: Did you file any action
against your secretary?
Atty. Gomez: I cannot locate her anymore.
COMM. DE LA RAMA, JR.: You know what to do, you are
a lawyer. And did you file any civil case?
Atty. Gomez: None, Your Honor because the family
went to my office asking for compassion.
(TSN pages 107-109,
What puzzles the undersigned
Commissioner is the complainant even stated that she did not give ₱100,000.00 to the secretary.
COMM. DE LA RAMA, JR.: Maam Cerdan, when you went
to the office of Atty. Gomez, did you give ₱100,000.00 to the secretary?
Mrs. Cerdan: No.
(TSN Page 110,
Further, Mrs. Cerdan did not
promise anything to Atty. Gomez by of way of compensation. The complaint stated
the following:
COMM. DE LA RAMA, JR.: Okay. Liliwanagin ko lang
para sa kapakanan ng lahat, meron po ba kayong ipinangako naman kay Atty. Gomez
na kung maiaayos niya ang usaping ito ay magkakaroon siya ng attorneys fees?
Mrs. Cerdan: Wala po.
Likewise, on the part of the
respondent, he claims that he has no agreement with respect to his professional
fees.
COMM. DE LA RAMA, JR.: How about you Atty. Gomez,
any agreement with complainant?
Atty. Gomez: None, Your Honor. I volunteer myself
to assist Mrs. Cerdan.
COMM. DE LA RAMA, JR.: Without expecting anything?
Atty. Gomez: Yes, Your Honor, in fact, I spent money
to assist her.
(TSN Page 111,
X x x x
Although the respondent is denying
that he received a compensation for the services rendered, we cannot deny the
fact that his own law office issued an acknowledgement receipt on
Commissioner Dela Rama found that Atty. Gomez violated
Canon 16 of the Code of Professional Responsibility and recommended that he be
suspended from the practice of law for six (6) months.
On
Atty. Gomez moved for
reconsideration,[8]
but
in its Resolution No. XIX-2011-415 dated
The Court agrees with the findings of the IBP.
A lawyer-client relationship is highly fiduciary in
nature and it requires a high standard of conduct and demands utmost fidelity,
candor, fairness, and good faith.[9] Once a lawyer agrees to handle a case, he is
required by the Canons of Professional Responsibility to undertake the task
with zeal, care and utmost devotion.[10]
In the case at bench, Atty. Gomez failed to observe the utmost good faith,
loyalty, candor, and fidelity required of an attorney in his dealings with complainant.
Atty. Gomez exceeded his authority when he entered into a compromise agreement
with regard to the FCB account in Quezon Branch, where he agreed that
complainant shall receive 40 percent of the proceeds while the heirs of Rufino
shall get the 60 percent, which was contrary to the original agreement of 50-50
sharing. Atty. Gomez likewise acted beyond the scope of the SPA when he
included in the compromise agreement the FCB account in Narra branch when it was
issued only with respect to the FCB account, Quezon branch. Moreover, Atty.
Gomez entered into a compromise agreement with respect to the other properties
of Rufino without authority from complainant.
Furthermore, Atty. Gomez failed to account for the
money he received for complainant as a result of the compromise agreement. Worse,
he remitted the amount of ₱290,000.00 only, an amount substantially less
than the share of complainant. Records reveal that complainants share from the
FCB savings accounts amounted to ₱442,547.88 but only P290,000.00 was
remitted by Atty. Gomez after deducting his share.
This Court will not tolerate such acts. Atty. Gomez
has no right to unilaterally retain his lawyers lien.[11] Having obtained the funds in
the course of his professional employment, Atty. Gomez had the obligation to
account and deliver such funds to his client when they became due, or upon
demand. Moreover, there was no
agreement between him and complainant that he could deduct therefrom his
claimed attorneys fees.
The Code of Professional Responsibility specifically
Section 16, provides:
CANON 16 A lawyer shall hold in trust all moneys and properties of his client that may come into his possession.
Rule 16.01 A lawyer shall account for all money or property collected or received for or from the client.
X x x x
The fiduciary nature of the relationship between
counsel and client imposes on a lawyer the duty to account for the money or
property collected or received for or from the client.[12] He is obliged to render a
prompt accounting of all the property and money he has collected for his client.[13]
Lawyers should always live
up to the ethical standards of the legal profession as embodied in the Code of
Professional Responsibility. Public confidence in law and in lawyers may be
eroded by the irresponsible and improper conduct of a member of the bar. Thus,
every lawyer should act and comport himself in a manner that would promote
public confidence in the integrity of the legal profession.[14]
The penalty for violation of Canon 16 of the Code of
Professional Responsibility usually ranges from suspension for six months,[15] to
suspension for one year,[16] or two years[17] and
even disbarment[18]
depending on the amount involved and the severity of the lawyers misconduct.
Considering that this is Atty. Gomezs first offense, the penalty of suspension
for one (1) year is a sufficient sanction.
WHEREFORE, respondent Atty. Carlo Gomez is hereby
declared GUILTY of violation of Canon 16 of the Code of
Professional Responsibility and is SUSPENDED from the practice of law for a
period of one (1) year effective upon receipt of this Resolution, with a WARNING that a repetition of the
same or similar acts will be dealt with severely.
Let a copy of this decision
be furnished the Court Administrator for distribution to all courts of the
land, the IBP, the Office of the Bar Confidant, and entered into the personal
records of Atty. Gomez as an attorney and as a member of the Philippine Bar.
SO
ORDERED.
JOSE CATRAL
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate
Justice
Chairperson
DIOSDADO M.
PERALTA ROBERTO A.
ABAD
Associate Justice Associate Justice
ESTELA M. PERLAS-BERNABE
Associate
Justice
[1] Rollo,
p. 433.
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9] Macarilay v. Seria,
497 Phil. 348, 356
(2005).
[10] Rollon v.
Naraval, 493
Phil. 24, 29 (2005).
[11] Aldovino v. Pujalte, 467
Phil. 556, 561 (2004).
[12] Belleza v. Macasa, A.C.
No. 7815,
[13] Bayonla
v. Reyes, A.C.
No. 4808,
[14] Belleza v. Macasa, supra
note 12 at 562.
[15] Espiritu v. Ulep, 497
Phil. 339, (2005).
[16] Villanueva v. Atty. Ishiwata,
486 Phil. 1 (2004); Aldovino v. Pujalte, supra
note 11.
[17] Mortera v.
Atty. Pagatpatan, 499 Phil. 93 (2005).
[18] Hernandez
v. Atty. Go, 490 Phil. 420 (2005).