Adriane Gabrielle M Pundavela

PALE 3E

MEMORANDUM

To: Atty. Juan Dela Cruz

From: Atty. Adriane Gabrielle M Pundavela

Date: May 5, 2019

Re: Possible violation of the Code of Professional Responsibility.

Facts
If it can be established that the private complainant Calapate, seek the advice and legal assistance
of the Respondent Atty. Abad Abogado for illegal dismissal and that the Complainant never
attempted to bribe the cashier, unpaid of correct amounts of benefits and that never in his tenure
did he cause damage, injury and loss to his employer by tempering of receipts and that the
statement of the cashier against him was a total lie. As fo failure in arriving in a fair settlement,
both parties were asked to submit their Position Papers whereas the respondent Calapate
provided the correct date of dismissal as stated in his Notice of Termination and the same with
his Memorandum. That the Respondent Atty. Abad Abogado never introduced the date of
dismissal but merely stated in toto what was written in the statement. From the documents at
hand, respondent observed several inconsistencies, foremost of which is the date of dismissal.
For the respondent, these inconsistencies are serious in manner that cod show that there are
reasons to doubt the credibility of the complainants claim with regard to the alleged tampering of
the receipts and bribery.

Issue
Whether or not Respondent Atty. Abad Abogado violates the Code of Professional
Responsibility when it failed to exercise the duties owed by him to his client and to the court of
justice

Brief Answer
Probably no. If the court believes that Respondent Atty. Abad Abogado did not deliberately,
without intent and malice used the error on the date of dismissal to thwart the truth and to
successfully win an illegal dismissal case. Then the court shall believe that Respondent Abad
Abogado did not violate the Code of Professional Responsibility.

Discussion
As explained earlier, the statement with regard to the date of dismissal was a direct citation from
complainant's own Memorandum and Notice of Disposition. The reference is apparent in the
Statement of Fact in the Position Paper.
Adriane Gabrielle M Pundavela
PALE 3E

In citing the date and the fact that it was in conflict with the dates stated in other documents, The
Position Paper was able to stress herein complainant's inconsistencies which to herein respondent
and his client affected complainant's credibility. Such belief is not baseless. Jurisprudence holds
that inconsistent, self-serving statements before a labor tribunal negate a party's claim.
Under the code of Professional Responsibility, to wit:
“CANON 12 - A LAWYER SHALL EXERT EVERY EFFORT AND CONSIDER IT HIS DUTY TO
ASSIST IN THE SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE.”
It is the duty of the lawyer as counsel to his client to exert all efforts necessary and to give the
justice that his client deserves. And the Respondent in doing so, only based the inconsistencies of
the statements of the opposing party not to mislead the court but to prove that there are reasons to
doubt the truthfulness of the statements of the opposing party and to question their credibility
with regard to the allegations and accusations against his client.
In the case of Fernandez vs. De Ramos- Villaon. The court ruled that:
“A lawyer has the duty to be truthful in all his dealings, however this duty does not require him
to advance matters of defense on behalf of his or her client’s opponent. Villalon was not duty
bound to build the case for Fernandez. The cause of action chosen by Palacios was for the
annulment of the deed of donation. Palacios had told her that the deed of sale was void for lack
of consideration. It was not a necessary fact for his case”
“Only the client’s operative facts and not the other evidentiary facts need to be included in the
Complaint. It is correct for the respondent to argue that pointing out the existence of the January
12 Deed of Absolute Sale was a matter of defense which the defendant in said civil case can
freely point out to the trial judge through his own pleadings. It cannot be argued that there was
suppression of evidence on the part of the respondent as she is not the only person who had
access or possession of the said Deed of Absolute Sale”
“It was a document readily available to the general public through the NotarialOffice. Moreover,
it was a document which was fully known to herein complainant as he was supposed to be a
party to the said Deed of Absolute Sale. In other words, a person cannot possibly suppress the
existence of a document which everyone else, especially the opposing party-litigant, knows
about.”
Respondent was justified in relying on complainant's Memorandum and Notice of Disposition.
Under the doctrine of best evidence, a written instrument is itself always regarded as the primary
or best possible evidence of its existence and contents; a copy or the recollection of a witness,
would be secondary evidence. Thus, even granting for the sake of argument that the complaint
contained a different date from that of complainant's memorandum and Notice of Disposition,
the latter evidence would carry more evidentiary weight than the former which is based on mere
recollection.
In addition,, herein complainant could not impugn its own documents. Under the principle of
estoppel by deed, herein complainant could not assert against the respondent and his client any
right in derogation to the instrument it issued. "Estoppel by deed is a bar which precludes one
party to a deed and his privies from asserting as against the other party and his
Adriane Gabrielle M Pundavela
PALE 3E

privies the right or title in derogation of the deed or from denying the truth of any material facts
asserted in it.
Furthermore, the offer Memorandum and Notice were not objected to at a proper time and as
such they were duly admitted as evidence. Accordingly, the labor arbiter was correct in
considering them and the contents they stated.
Lastly, the effect of a verified pleading is that the party verifying attests to the truthfulness of the
pleading's contents. Accordingly, a lawyer should be insulated from any issues arising from facts
stated in the verified pleading.

Conclusion
The probable outcome of Respondent Atty. Abad Abogado depends on what the court finds
concerning his situation and with respect to the case law on point with facts of his case.
Respondent’s case involves whether or not he violated the Code of Professional Responsibility
when he failed to exercise all duties expected of him by the code. The Law states that a lawyer
shall not engage in unlawful, dishonest, immoral or deceitful conduct. And that a lawyer shall
not do any falsehood, nor consent to the doing of any in Court; nor shall he mislead, or allow the
Court to be misled by any artifice. According to the complaint, Respondent Atty. Abad Abogado
did not deliberately perpetrated the falsehood as the counsel of complainant Calapate. The false
date and other inconsistencies were only used by the Respondent Atty. Abad Abogado to
strengthen his claim of untruthfulness in the allegations and accusations of the opposing party
and to further question the credibility of the testimony of their witness. The alleged falsehood did
not also originate from the respondent. The respondent simply reiterated what the statement in
the position paper says. He did not furnish false facts and aid the complainant Calapate to resort
to falsehood and mislead the court of justice. If the court believes this, then Respondent Atty.
Abad Abodago is not guilty of violation of the Code of Professional Responsibility and the
disbarment case shall be dismissed.