Escolar Documentos
Profissional Documentos
Cultura Documentos
SECOND DIVISION
[A.C. No. 5108. May 26, 2005]
ROSA F. MERCADO, complainant, vs. ATTY. JULITO D. VITRIOLO, respondent.
DECISION
PUNO, J.:
Rosa F. Mercado filed the instant administrative complaint against Atty. Julito D.
Vitriolo, seeking his disbarment from the practice of law. The complainant alleged that
respondent maliciously instituted a criminal case for falsification of public document
against her, a former client, based on confidential information gained from their
attorney-client relationship.
Let us first hearken to the facts.
Complainant is a Senior Education Program Specialist of the Standards
Development Division, Office of Programs and Standards while respondent is a Deputy
Executive Director IV of the Commission on Higher Education (CHED).[1]
Complainants husband filed Civil Case No. 40537 entitled Ruben G. Mercado v.
Rosa C. Francisco, for annulment of their marriage with the Regional Trial Court (RTC) of
Pasig City. This annulment case had been dismissed by the trial court, and the dismissal
became final and executory on July 15, 1992.[2]
In August 1992, Atty. Anastacio P. de Leon, counsel of complainant, died. On
February 7, 1994, respondent entered his appearance before the trial court as
collaborating counsel for complainant.[3]
On March 16, 1994, respondent filed his Notice of Substitution of
Counsel,[4] informing the RTC of Pasig City that he has been appointed as counsel for
the complainant, in substitution of Atty. de Leon.
It also appears that on April 13, 1999, respondent filed a criminal action against
complainant before the Office of the City Prosecutor, Pasig City, entitled Atty. Julito
Vitriolo, et al. v. Rose Dela Cruz F. Mercado, and docketed as I.S. No. PSG 99-9823, for
violation of Articles 171 and 172 (falsification of public document) of the Revised Penal
Code.[5] Respondent alleged that complainant made false entries in the Certificates of
Live Birth of her children, Angelica and Katelyn Anne. More specifically, complainant
allegedly indicated in said Certificates of Live Birth that she is married to a certain
Ferdinand Fernandez, and that their marriage was solemnized on April 11, 1979, when in
truth, she is legally married to Ruben G. Mercado and their marriage took place on April
11, 1978.
Complainant denied the accusations of respondent against her. She denied using
any other name than Rosa F. Mercado. She also insisted that she has gotten married
only once, on April 11, 1978, to Ruben G. Mercado.
In addition, complainant Mercado cited other charges against respondent that are
pending before or decided upon by other tribunals (1) libel suit before the Office of the
City Prosecutor, Pasig City;[6] (2) administrative case for dishonesty, grave misconduct,
conduct prejudicial to the best interest of the service, pursuit of private business,
vocation or profession without the permission required by Civil Service rules and
regulations, and violations of the Anti-Graft and Corrupt Practices Act, before the then
Presidential Commission Against Graft and Corruption;[7] (3) complaint for dishonesty,
grave misconduct, and conduct prejudicial to the best interest of the service before
the Office of the Ombudsman, where he was found guilty of misconduct and meted
out the penalty of one month suspension without pay;[8] and, (4) the Information for
violation of Section 7(b)(2) of Republic Act No. 6713, as amended, otherwise known as
the Code of Conduct and Ethical Standards for Public Officials and Employees before
the Sandiganbayan.[9]
Complainant Mercado alleged that said criminal complaint for falsification of
public document (I.S. No. PSG 99-9823) disclosed confidential facts and information
relating to the civil case for annulment, then handled by respondent Vitriolo as her
counsel. This prompted complainant Mercado to bring this action against respondent.
She claims that, in filing the criminal case for falsification, respondent is guilty of
breaching their privileged and confidential lawyer-client relationship, and should be
disbarred.
2
go to a lawyer and converse with him upon his rights or supposed rights in any litigation
with absolute assurance that the lawyers tongue is tied from ever disclosing it.[21] With
full disclosure of the facts of the case by the client to his attorney, adequate legal
representation will result in the ascertainment and enforcement of rights or the
prosecution or defense of the clients cause.
Now, we go to the rule on attorney-client privilege. Dean Wigmore cites the factors
essential to establish the existence of the privilege, viz:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal advisor, (8) except the protection be waived.[22]
In fine, the factors are as follows:
(1) There exists an attorney-client relationship, or a prospective attorney-client
relationship, and it is by reason of this relationship that the client made the
communication.
Matters disclosed by a prospective client to a lawyer are protected by the rule on
privileged communication even if the prospective client does not thereafter retain the
lawyer or the latter declines the employment.[23] The reason for this is to make the
prospective client free to discuss whatever he wishes with the lawyer without fear that
what he tells the lawyer will be divulged or used against him, and for the lawyer to be
equally free to obtain information from the prospective client.[24]
On the other hand, a communication from a (prospective) client to a lawyer for
some purpose other than on account of the (prospective) attorney-client relation is not
privileged. Instructive is the case of Pfleider v. Palanca,[25] where the client and his wife
leased to their attorney a 1,328-hectare agricultural land for a period of ten years. In
their contract, the parties agreed, among others, that a specified portion of the lease
rentals would be paid to the client-lessors, and the remainder would be delivered by
counsel-lessee to client's listed creditors. The client alleged that the list of creditors
which he had confidentially supplied counsel for the purpose of carrying out the terms
of payment contained in the lease contract was disclosed by counsel, in violation of
their lawyer-client relation, to parties whose interests are adverse to those of the client.
As the client himself, however, states, in the execution of the terms of the aforesaid
lease contract between the parties, he furnished counsel with the confidential list of his
creditors. We ruled that this indicates that client delivered the list of his creditors to
counsel not because of the professional relation then existing between them, but on
account of the lease agreement. We then held that a violation of the confidence that
accompanied the delivery of that list would partake more of a private and civil wrong
than of a breach of the fidelity owing from a lawyer to his client.
(2) The client made the communication in confidence.
The mere relation of attorney and client does not raise a presumption of
confidentiality.[26] The client must intend the communication to be confidential.[27]
A confidential communication refers to information transmitted by voluntary act of
disclosure between attorney and client in confidence and by means which, so far as
the client is aware, discloses the information to no third person other than one
reasonably necessary for the transmission of the information or the accomplishment of
the purpose for which it was given.[28]
Our jurisprudence on the matter rests on quiescent ground. Thus, a compromise
agreement prepared by a lawyer pursuant to the instruction of his client and delivered
to the opposing party,[29] an offer and counter-offer for settlement,[30] or a document
given by a client to his counsel not in his professional capacity,[31] are not privileged
communications, the element of confidentiality not being present.[32]
(3) The legal advice must be sought from the attorney in his professional
capacity.[33]
The communication made by a client to his attorney must not be intended for mere
information, but for the purpose of seeking legal advice from his attorney as to his rights
or obligations. The communication must have been transmitted by a client to his
attorney for the purpose of seeking legal advice.[34]
4
SECOND DIVISION
CARPIO,
Chairperson,
- versus - BRION,
PEREZ,
SERENO, and
REYES, JJ.
Promulgated:
ATTY. RODOLFO T. GALING,
Respondent. November 16, 2011
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
PEREZ, J.:
Complainant Justo alleged that sometime in April 2003, she engaged the services of
respondent Atty. Galing in connection with dishonored checks issued by Manila City
Councilor Arlene W. Koa (Ms. Koa). After she paid his professional fees, the respondent
drafted and sent a letter to Ms. Koa demanding payment of the checks.[3] Respondent
advised complainant to wait for the lapse of the period indicated in the demand letter
before filing her complaint.
On 10 July 2003, complainant filed a criminal complaint against Ms. Koa for estafa and
violation of Batas Pambansa Blg. 22 before the Office of the City Prosecutor of Manila.[4]
In his Comment,[6] respondent denied the allegations against him. He admitted that he
drafted a demand letter for complainant but argued that it was made only in
deference to their long standing friendship and not by reason of a professional
engagement as professed by complainant. He denied receiving any professional fee
for the services he rendered. It was allegedly their understanding that complainant
would have to retain the services of another lawyer. He alleged that complainant,
based on that agreement, engaged the services of Atty. Manuel A. Ao.
6
To bolster this claim, respondent pointed out that the complaint filed by complainant
against Ms. Koa for estafa and violation of B.P. Blg. 22 was based not on the demand
letter he drafted but on the demand letter prepared by Atty. Manuel A. Ao.
Respondent contended that he is a close friend of the opposing parties in the criminal
cases. He further contended that complainant Justo and Ms. Koa are likewise long time
friends, as in fact, they are comares for more than 30 years since complainant is the
godmother of Ms. Torralba.[7] Respondent claimed that it is in this light that he
accommodated Ms. Koa and her daughters request that they be represented by him in
the cases filed against them by complainant and complainants daughter. He
maintained that the filing of the Motion for Consolidation which is a non-adversarial
pleading does not evidence the existence of a lawyer-client relationship between him
and Ms. Koa and Ms. Torralba. Likewise, his appearance in the joint proceedings should
only be construed as an effort on his part to assume the role of a moderator or arbiter
of the parties.
He insisted that his actions were merely motivated by an intention to help the parties
achieve an out of court settlement and possible reconciliation. He reported that his
efforts proved fruitful insofar as he had caused Ms. Koa to pay complainant the amount
of P50,000.00 in settlement of one of the two checks subject of I.S. No. 03G-19484-86.
Respondent averred that the failure of Ms. Koa and Ms. Torralba to make good the
other checks caused a lot of consternation on the part of complainant. This allegedly
led her to vent her ire on respondent and file the instant administrative case for conflict
of interest.
In a resolution dated 19 October 2007, the Board of Governors of the IBP adopted and
approved with modification the findings of its Investigating Commissioner. They found
respondent guilty of violating Canon 15, Rule 15.03 of the Code of Professional
Responsibility by representing conflicting interests and for his daring audacity and for
the pronounced malignancy of his act. It was recommended that he be suspended
from the practice of law for one (1) year with a warning that a repetition of the same or
similar acts will be dealt with more severely.[8]
It was also established that on 25 July 2003, a Motion for Consolidation was filed by
respondent in I.S. No. 03G-19484-86 entitled Lydia Justo vs. Arlene Koa and I.S. No. 03G-
19582-84 entitled Lani C. Justo vs. Karen Torralba. Respondent stated that the movants
in these cases are mother and daughter while complainants are likewise mother and
daughter and that these cases arose out from the same transaction. Thus, movants and
complainants will be adducing the same sets of evidence and witnesses.
We are not persuaded. A lawyer-client relationship can exist notwithstanding the close
friendship between complainant and respondent. The relationship was established the
moment complainant sought legal advice from respondent regarding the dishonored
checks. By drafting the demand letter respondent further affirmed such relationship. The
fact that the demand letter was not utilized in the criminal complaint filed and that
respondent was not eventually engaged by complainant to represent her in the
7
Under Rule 15.03, Canon 15 of the Code of Professional Responsibility, [a] lawyer shall
not represent conflicting interests except by written consent of all concerned given
after a full disclosure of the facts. Respondent was therefore bound to refrain from
representing parties with conflicting interests in a controversy. By doing so, without
showing any proof that he had obtained the written consent of the conflicting parties,
respondent should be sanctioned.
It behooves lawyers not only to keep inviolate the clients confidence, but also to avoid
the appearance of treachery and double-dealing for only then can litigants be
encouraged to entrust their secrets to their lawyers, which is of paramount importance
in the administration of justice.[16]
The excuse proffered by respondent that it was not him but Atty. Ao who was
eventually engaged by complainant will not exonerate him from the clear violation of
Rule 15.03 of the Code of Professional Responsibility. The take- over of a clients cause of
action by another lawyer does not give the former lawyer the right to represent the
opposing party. It is not only malpractice but also constitutes a violation of the
confidence resulting from the attorney-client relationship.
8
Considering that this is respondents first infraction, the disbarment sought in the
complaint is deemed to be too severe. As recommended by the Board of Governors of
the IBP, the suspension from the practice of law for one (1) year is warranted.
Accordingly, the Court resolved to SUSPEND Atty. Rodolfo T. Galing from the practice of
law for one (1) year, with a WARNING that a repetition of the same or similar offense will
warrant a more severe penalty. Let copies of this Decision be furnished all courts, the
Office of the Bar Confidant and the Integrated Bar of the Philippines for their
information and guidance. The Office of the Bar Confidant is directed to append a
copy of this Decision to respondents record as member of the Bar.
SO ORDERED.
9
EN BANC
RESOLUTION
PERLAS-BERNABE, J.:
For resolution is the Petition (For Extraordinary Mercy) filed by respondent Edmundo L.
Macarubbo (respondent) who seeks to be reinstated in the Roll of Attorneys.
Records show that in the Decision1 dated February 27, 2004, the Court disbarred
respondent from the practice of law for having contracted a bigamous marriage with
complainant Florence Teves and a third marriage with one Josephine Constantino
while his first marriage to Helen Esparza was still subsisting, which acts constituted gross
immoral conduct in violation of Canon 1, Rule 1.01 and Canon 7, Rule 7.03 of the Code
of Professional Responsibility. The dispositive portion of the subject Decision reads:
SO ORDERED.2
judicial clemency and reinstatement in the Roll of Attorneys. The Court initially treated
the present suit as a second motion for reconsideration and accordingly, denied it for
lack of merit in the Resolution dated September 4, 2012.6 On December 18, 2012, the
same petition was endorsed to this Court by the Office of the Vice President7 for re-
evaluation, prompting the Court to look into the substantive merits of the case.
In Re: Letter of Judge Augustus C. Diaz, Metropolitan Trial Court of Quezon City, Branch
37, Appealing for Clemency,8 the Court laid down the following guidelines in resolving
requests for judicial clemency, to wit:
1. There must be proof of remorse and reformation. These shall include but should not
be limited to certifications or testimonials of the officer(s) or chapter(s) of the Integrated
Bar of the Philippines, judges or judges associations and prominent members of the
community with proven integrity and probity. A subsequent finding of guilt in an
11
administrative case for the same or similar misconduct will give rise to a strong
presumption of non-reformation.
2. Sufficient time must have lapsed from the imposition of the penalty to ensure a
period of reform.
3. The age of the person asking for clemency must show that he still has productive
years ahead of him that can be put to good use by giving him a chance to redeem
himself.
5. There must be other relevant factors and circumstances that may justify clemency.9
(Citations omitted)
Moreover, to be reinstated to the practice of law, the applicant must, like any other
candidate for admission to the bar, satisfy the Court that he is a person of good moral
character.10
Applying the foregoing standards to this case, the Court finds the instant petition
meritorious.
Respondent has sufficiently shown his remorse and acknowledged his indiscretion in the
legal profession and in his personal life. He has asked forgiveness from his children by
complainant Teves and maintained a cordial relationship with them as shown by the
herein attached pictures.11 Records also show that after his disbarment, respondent
returned to his hometown in Enrile, Cagayan and devoted his time tending an orchard
and taking care of his ailing mother until her death in 2008.12 In 2009, he was appointed
as Private Secretary to the Mayor of Enrile, Cagayan and thereafter, assumed the
position of Local Assessment Operations Officer II/ Office-In-Charge in the Assessors
Office, which office he continues to serve to date.13 Moreover, he is a part-time
instructor at the University of Cagayan Valley and F.L. Vargas College during the School
Year 2011-2012.14 Respondent likewise took an active part in socio-civic activities by
helping his neighbors and friends who are in dire need.
The following documents attest to respondents reformed ways: (1) Affidavit of Candida
P. Mabborang;15 (2) Affidavit of Reymar P. Ramirez;16 (3) Affidavit of Roberto D.
Tallud;17 (4) Certification from the Municipal Local Government Office;18 (5)
Certification by the Office of the Municipal Agriculturist/Health Officer, Social Welfare
Development Officer;19 (6) Certification from the Election Officer of Enrile, Cagayan;20
(7) Affidavit of Police Senior Inspector Jacinto T. Tuddao;21 (8) Certifications from nine
(9) Barangay Chairpersons;22 (9) Certification from the Office of the Provincial
Assessor;23 (10) Certification from the Office of the Manager, Magsaka ca Multi-
Purpose Cooperative;24 and (11) Certification of the Office of the Federation of Senior
Citizens, Enrile Chapter.25 The Office of the Municipal Treasurer also certified that
respondent has no monetary accountabilities in relation to his office26 while the Office
of the Human Resource Management Officer attested that he has no pending
administrative case.27 He is not known to be involved in any irregularity and/or
accused of a crime. Even the National Bureau of Investigation (NBI) attested that he
has no record on file as of May 31, 2011.28
previous marital squabbles,33 as in fact, no opposition to the instant suit was tendered
by complainant Teves. He sends regular support34 to his children in compliance with
the Courts directive in the Decision dated February 27, 2004.
The Court notes the eight (8) long years that had elapsed from the time respondent
was disbarred and recognizes his achievement as the first lawyer product of Lemu
National High School,35 and his fourteen (14) years of dedicated government service
from 1986 to July 2000 as Legal Officer of the Department of Education, Culture and
Sports; Supervising Civil Service Attorney of the Civil Service Commission; Ombudsman
Graft Investigation Officer; and State Prosecutor of the Department of Justice.36 From
the attestations and certifications presented, the Court finds that respondent has
sufficiently atoned for his transgressions. At 5837 years of age, he still has productive
years ahead of him that could significantly contribute to the upliftment of the law
profession and the betterment of society. While the Court is ever mindful of its duty to
discipline and even remove its errant officers, concomitant to it is its duty to show
compassion to those who have reformed their ways,38 as in this case.
SO ORDERED.