Sc.judiciary.gov.Ph-Navarro vs Meneses III 313 January 30 1998 Per Curiam en Banc

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  sc.judiciary.gov.ph http://sc.judiciary.gov.ph/jurisprudence/1998/jan1998/cbd_ac_313.htm Navarro vs Meneses III : 313 : January 30, 1998 : Per Curiam : EnBanc EN BANC[CBD A.C. No. 313. January 30, 1998] ATTY. AUGUSTO G. NAVARRO, for and in behalf of PAN-ASIA INTERNATIONAL COMMODITIES, INC., complainant  , vs . ATTY. ROSENDO MENESES III, respondent  .D E C I S I O N PER CURIAM: This administrative case against respondent Atty. Rosendo Meneses III was initiated by a complaint-affidavit[1] filedby Atty. Augusto G. Navarro on June 7, 1994 before the Commission on Bar Discipline of the Integrated Bar of thePhilippines (hereinafter, the Commission), for and in behalf of Pan-Asia International Commodities, Inc. Hereincomplainant charges respondent Meneses with the following offenses, viz  .: (1) malpractice and gross misconductunbecoming a public defender; (2) dereliction of duty, by violating his oath to do everything within his power toprotect his clients interest; (3) willful abandonment; and (4) loss of trust and confidence, due to his continued failureto account for the amount of P50,000.00 entrusted to him to be paid to a certain complainant for the amicablesettlement of a pending case.[2]The complaint-affidavit alleged that Frankwell Management and Consultant, Inc., a group of companies whichincludes Pan Asia International Commodities, Inc., through its Administrative Manager Estrellita Valdez, engaged thelegal services of respondent Atty. Meneses. While serving as such counsel, Atty. Meneses handled various casesand was properly compensated by his client in accordance with their retainer agreement.[3] One of the litigationshandled by him was the case of People vs. Lai Chan Kow, a.k.a. Wilson Lai, and Arthur Bretaa, pending beforeBranch 134, Regional Trial Court of Makati. On December 24. 1993, respondent received the sum of P50,000.00from Arthur Bretaa, the accused in said case, to be given to therein offended party, a certain Gleason, asconsideration for an out-of-court settlement and with the understanding that a motion to dismiss the case would befiled by respondent Meneses.Despite subsequent repeated requests, respondent failed to present to his client the receipt acknowledging thatGleason received said amount. A verification made with the Regional Trial Court of Makati revealed that no motion todismiss or any pleading in connection therewith had been filed, and the supposed amicable settlement was notfinalized and concluded. Despite repeated demands in writing or by telephone for an explanation, as well as theturnover of all documents pertaining to the aforementioned case, respondent Meneses deliber ately ignored the pleas of herein complainant.The case was assigned by the Commission to Commissioner Victor C. Fernandez for investigation. Respondentwas thereafter ordered to submit his answer to the complaint pursuant to Section 5, rule 139-B of the Rules of Court.[4] Two successive ex parte  motions for extension of time to file an answer were filed by respondent andgranted by the Commission.[5] On November 14, 1994, respondent filed a motion to dismiss,[6] instead of an answer.In said motion, respondent argued that Atty. Navarro had no legal personality to sue him for and in behalf of Pan- Asia International Commodities, Inc. because his legal services were retained by Frankwell Management and 1/4  Consultant, Inc.; that Navarro had not represented Pan-Asia International Commodities, Inc. in any case nor hadbeen authorized by its board of directors to file this disbarment case against respondent; that the retainer agreement between him and Frankwell Management and Consultant, Inc. had been terminated as of December 31,1993 according to the verbal advice of its Administrative Officer Estrellita Valdez; that the case of Arthur Bretaa wasnot part of their retainer agreement, and Bretaa was not an employee of Frankwell Management and Consultant,Inc. which retained him as its legal counsel; and that the settlement of said case cannot be concluded because thesame was archived and accused Bretaa is presently out of the country.Herein complainant, in his opposition to the motion to dismiss,[7] stresses that respondent Meneses is resorting totechnicalities to evade the issue of his failure to account for the amount of P 50,000.00 entrusted to him; that therespondents arguments in his motion to dismiss were all designed to mislead the Commission; and that he was fullyaware of the interrelationship of the two corporations and always coordinated his legal work with Estrellita Valdez.On November 28, 1994, Investigating Commissioner Victor C. Fernandez resolved to deny said motion to dismissfor lack of merit and directed respondent to file his answer.[8] On January 2, 1995, respondent filed a manifestationthat he was adopting the allegations in his motion to dismiss his answer.[9] When the case was set for hearing onFebruary 9, 1995, respondent failed to attend despite due notice. He thereafter moved to postpone and reset thehearing of the case several times allegedly due to problems with his health.On the scheduled hearing on June 15, 1995, respondent again failed to attend. The commissioner accordinglyreceived an ex parte  the testimony of complainants sole witness, Estrellita Valdez, and other documentaryevidence.[10] Thereafter, complainant rested its case. Respondent filed a so-called Urgent Ex-parte  Motion for Reconsideration with Motion to Recall Complainants Witness for Cross-Examination[11] which was granted by theCommission.[12] Estrellita Valdez was directed by the Commission to appear on the scheduled hearing for cross-examination.Several postponement and resetting of hearings were later requested and granted by the Commission. When thecase was set for hearing for the last time on May 31, 1996, respondent failed to attend despite due notice andrepeated warnings. Consequently, the Commission considered him to have waived his right to present evidence inhis defense and declared the case submitted for resolution.[13]On February 4, 1997, the Commission on Bar Discipline, through its Investigating Commissioner Victor C.Fernandez, submitted its Report and Recommendation[14] to the Board of Governors of the Integrated Bar of thePhilippines. The Commission ruled that the refusal and/or failure of respondent to account for the sum of P50,000.00he received from complainant for the settlement of the aforestated case of Lai Chan Kow and Arthur Bretaa provesbeyond any shadow of a doubt that he misappropriated the same, hence he deserved to be penalized.The Commission recommended that respondent Meneses he suspended from the practice of the legal professionfor a period of three (3) years and directed to return the P50,000.00 he received from the petitioner within fifteen(15) days from notice of the resolution. It further provided that failure on his part to comply with such requirementwould result in his disbarment.[15] The Board of Governors adopted and approved the report and recommendationof the Investigating Commissioner in its Resolution No. XII-97-133, dated July 26, 1997.[16]On August 15, 1997, the Court received the Notice of Resolution, the Report and Recommendation of theInvestigating Commissioner, and the records of this case through the Office of the Bar Confidant for final actionpursuant to Section 12 (b) of Rule 139-B.[17] It appears therefrom that respondent was duly furnished a copy of saidresolution, with the investigating commissioners report and recommendation annexed thereto.The Court agrees with the findings and conclusion of the Integrated Bar of the Philippines that respondent Menesesmisappropriated the money entrusted to him and which he has failed and/or refused to account for to his clientdespite repeated demands therefor. Such conduct on the part of respondent indicating his unfitness for theconfidence and trust reposed on him, or showing such lack of personal honesty or of good moral character as to 2/4  render him unworthy of public confidence, constitutes a ground for disciplinary action extending to disbarment.[18]Respondent Meneses misconduct constitute a gross violation of his oath as a lawyer which, inter alia , imposesupon every lawyer the duty to delay no man for money or malice. He blatantly disregarded Rule 16.01 of Canon 16of the Code of Professional Responsibility which provides that a lawyer shall account for all money or propertycollected or received for or from his client. Respondent was merely holding in trust the money he received from hisclient to used as consideration for amicable settlement of a case he was handling. Since the amicable settlement didno materialize, he was necessarily under obligation to immediate return the money, as there is no showing that hehas a lien over it. As a lawyer, he should be scrupulously careful in handling money entrusted to him in hisprofessional capacity, because a high degree of fidelity and good faith on his part is exacted.[19]The argument of respondent that complainant has no legal personality to sue him is unavailing. Section 1 Rule 139-B of the Rules of Court provides that proceedings for the disbarment, suspension, or discipline of attorneys may betaken by the Supreme Court motu propio  or by the Integrated Bar of the Philippines upon the verified complainant of any person. The right to institute a disbarment proceeding is not confined to clients nor is it necessary that theperson complaining suffered injury from the alleged wrongdoing. Disbarment proceedings are matters of publicinterest and the only basis for judgment is the proof or failure of proof of the charge. The evidence submitted bycomplainant before the Commission on Bar Discipline sufficed to sustain its resolution and recommended sanctions.It is settled that a lawyer is not obliged to act as counsel for every person who may wish to become his client. Hehas the right to decline employment[20] subject however, to the provision of Canon 14 of the Code of ProfessionalResponsibility.[21] Once he agrees to take up the cause of a client, he owes fidelity to such cause and must alwaysbe mindful of the trust and confidence reposed to him.[22] Respondent Meneses, as counsel, had the obligation toinform his client of the status of the case and to respond within a reasonable time to his clients request for information. Respondents failure to communicate with his client by deliberately disregarding its request for anaudience or conference is an unjustifiable denial of its right to be fully informed of the developments in and thestatus of its case.On January 7, 1998, the Bar Confidant submitted to the Court a copy of the letter of Atty. Augusto G. Navarro, datedDecember 18, 1997, to the effect that although a copy of the aforestated Resolution No. XII-97-133 was personallydelivered to respondents address and received by his wife on October 9, 1997, he had failed to restitute the amountof P50,000.00 to complainant within the 15-day period provided therein. Neither has he filed with this Court anypleading or written indication of his having returned said amount to complainant. In line with the resolution in thiscase, his disbarment is consequently warranted and exigent. A note and advice on the penalty imposed in the resolution is in order. The dispositive portion thereof provides that:x x x Respondent Atty. Rosendo Meneses is hereby SUSPENDED from the practice of law for three (3) years and ishereby directed to return the Fifty Thousand Pesos he received from the petitioner within fifteen (15) days fromreceipt of this resolution. Failure on his part to comply will result (i)n his DISBARMENT.[23]In other words, it effectively purports to impose either a 3-year suspension or disbarment, depending on whether or not respondent duly returns the amount to complainant. Viewed from another angle, it directs that he shall only besuspended, subject to the condition that he should make restitution as prescribed therein.Dispositions of this nature should be avoided. In the imposition of penalties in criminal cases, it has long been therule that the penalty imposed in a judgment cannot be in the alternative, even if the law provides for alternativepenalties,[24] not can such penalty be subject to a condition.[25] There is no reason why such legal principles in penal law should not apply in administrative disciplinary actions which, as in this case, also involve punitivesanctions.Besides, if the purpose was to extenuate the liability of respondent, the only possible and equivalent rule is in 3/4  malversation cases holding that the restitution of the peculated funds would be analogous to voluntary surrender if itwas immediately and voluntarily made before the case was instituted.[26] The evidently is not the situation here. Also the implementation of the penalty provided in the resolution will involve a cumbersome process since, in order to arrive at the final action to be taken by this Court, it will have to wait for a verified report on whether or notrespondent complied with the condition subsequent. WHEREFORE , Atty. Rosendo Meneses III is hereby DISBARRED. Let a copy of this decision be attached torespondents personal records in this Court and furnished the Integrated Bar of the Philippines, together with allcourts in the county.SO ORDERED.Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco,Panganiban, and Martinez, JJ., concur. 4/4
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