5/10/2020 [ AC. No.

10912, January 19, 2016 ]

778 Phil. 557

EN BANC
[ AC. No. 10912, January 19, 2016 ]
PAULINA T. YU COMPLAINANT, VS. ATTY. BERLIN R. DELA
CRUZ, RESPONDENT.
DECISION

PER CURIAM:

Subject of this disposition is the September 28, 2014 Resolution[1] of the Integrated Bar of
the Philippines Board of Governors (IBP-BOG) which adopted and approved the findings
and the recommendation of the Investigating Commissioner for the disbarment of Atty.
Berlin Dela Cruz (respondent lawyer).

It appears from the records that respondent lawyer agreed to represent Paulina T. Yu
(complainant) in several cases after having received various amounts as acceptance fees, to
wit:

Case Title Acceptance Fees

People v. Tortona for attempted homicide
(Case No. 06-359) filed with the Metropolitan P 20,000.00
Trial Court, Bacoor, Cavite
Paulina T. Yu v. Pablo and Rodel Gamboa for
qualified theft/estafa (I.S. No. XV-07-INV-
P 8,000.00
116-05339) filed with the City Prosecutor of
Manila
Paulino T. Yu v. Roberto Tuazon et al. (Civil
Case No. LP-00-0087) filed before the P 15,000.00
Regional Trial Court of Las Piñas[2]

On November 29, 2011, while the lawyer-client relationship was subsisting, respondent
lawyer borrowed pieces of jewelry from complainant and pledged the same with the
Citystate Savings Bank, Inc. for the amount of P29,945.50, as shown in the Promissory Note
with Deed of Pledge.[3] Respondent lawyer appropriated the proceeds of the pledge to his
personal use. In order to facilitate the redemption of the said jewelry, respondent lawyer
issued to complainant, Citystate Savings Bank Check No. 0088551, dated August 31, 2011,
in the amount of P34,500.00. Upon presentment, however, complainant was shocked to learn
that the check was dishonored for the reason, "Account Closed."[4] Complainant
immediately notified respondent lawyer of the dishonor of the check.

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In a letter,[5] dated March 23, 2012, complainant demanded for the refund of the acceptance
fees received by respondent lawyer prior to the "abandonment" of the cases and the payment
of the value of the jewelry, but to no avail.

In another letter,[6] dated April 18, 2012, this time represented by another lawyer, Atty.
Francisco C. Miralles, complainant yet again demanded the redemption of the check in cash
within five days from notice; the refund of the paid acceptance fees, in exchange for which
no service was rendered; the payment of the value of the pledged jewelry in the amount of
PI00,000.00 in order to avoid the interests due and the possible foreclosure of the pledge;
and moral damages of P 300,000.00.

For his failure to heed the repeated demands, a criminal case for violation of Batas Pambansa
Blg. 22 was filed with the Office of the City Prosecutor, Las Pinas City, against him.[7]

On June 7, 2012, a verified complaint was filed with the IBP-Commission on Bar Discipline
(IBP-CBD),[8] where complainant prayed for the disbarment of respondent lawyer on
account of grave misconduct, conduct unbecoming of a lawyer and commission of acts in
violation of the lawyer's oath. The IBP-CBD required respondent lawyer to submit his
answer to the complaint.[9] Despite having been duly served with a copy of the complaint
and the order to file his answer, as shown in a certification[10] issued by the Post Master of
the Las Piñas Central Post Office, respondent still failed to file an answer.

Respondent lawyer was likewise notified of the scheduled mandatory conference/hearing on

November 23, 2012, but only the complainant and her counsel appeared on the said day. The
IBP-CBD then ordered the resetting of the mandatory conference for the last time to January
11, 2013 and the personal service of the notice thereof to respondent lawyer's given address.
[11] Notwithstanding the receipt of the notice by respondent lawyer's mother,[12] he still
failed to appear during the conference, prompting complainant to move for the termination
of the conference and the submission of the case for report and recommendation.

On June 7, 2013, the Investigating Commissioner recommended the disbarment of

respondent lawyer from the practice of law.[13] Based on the evidence on record, respondent
lawyer was found to have violated Rule 16.04 of the Code of Professional Responsibility
(CPR), which proscribed the borrowing of money from a client, unless the latter's interests
were fully protected by the nature of the case or by independent advice. Worse, respondent
lawyer had clearly issued a worthless check in violation of law which was against Rule 1.01
of Canon 1 of the CPR stating that, "[a] lawyer shall not engage in unlawful, dishonest and
immoral or deceitful conduct."

On September 28, 2014, the IBP-BOG affirmed the said recommendation in Resolution No.
XXI-2014-698.[14]

Neither a motion for reconsideration before the BOG nor a petition for review before this
Court was filed. Nonetheless, the IBP elevated to this Court the entire records of the case for
appropriate action with the IBP Resolution being merely recommendatory and, therefore,
would not attain finality, pursuant to par. (b), Section 12, Rule 139-B of the Rules of Court.
[15]

The Court acknowledges the fact that respondent lawyer failed to refute the accusations
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against him despite the numerous opportunities afforded to him to explain his side. All
means were exhausted to give respondent lawyer a chance to oppose the charges against him
but to no avail and for reasons only for known to him. Whether respondent lawyer had
personally read the orders by the IBP-CBD or his mother failed to forward the same for his
personal consideration may only be an object of surmise in which the Court cannot indulge.
"Disbarment of lawyers is a proceeding that aims to purge the law profession of unworthy
members of the bar. It is intended to preserve the nobility and honor of the legal profession."
[16] Surely, respondent lawyer's failure or refusal to participate in the IBP-CBD proceedings
does not hinder the Court from determining the full extent of his liability and imposing an
appropriate sanction, if any.

After a judicious review of the records, the Court finds no reason to deviate from the
findings of the Investigating Commissioner with respect to respondent lawyer's violation of
Canons 1,[17] 16,[18] 17,[19] and Rules 1.01,[20] 16.04,[21] of the CPR.

In the case at bench, the complaint stemmed from the use by respondent lawyer of his
client's property. He had, indeed, come into possession of valuable pieces of jewelry which
he presented as security in a contract of pledge. Complainant voluntarily and willingly
delivered her jewelry worth P135,000.00 to respondent lawyer who meant to borrow it and
pawn it thereafter. This act alone shows respondent lawyer's blatant disregard of Rule 16.04.
Complainant's acquiescence to the "pawning" of her jewelry becomes immaterial
considering that the CPR is clear in that lawyers are proscribed from borrowing money or
property from clients, unless the latter's interests are fully protected by the nature of the case
or by independent advice. Here, respondent lawyer's act of borrowing does not constitute an
exception. Respondent lawyer used his client's jewelry in order to obtain, and then
appropriate for himself, the proceeds from the pledge. In so doing, he had abused the trust
and confidence reposed upon him by his client. That he might have intended to subsequently
pay his client the value of the jewelry is inconsequential. What deserves detestation was the
very act of his exercising influence and persuasion over his client in order to gain undue
benefits from the latter's property. The Court has repeatedly emphasized that the relationship
between a lawyer and his client is one imbued with trust and confidence. And as true as any
natural tendency goes, this "trust and confidence" is prone to abuse.[22] The rule against
borrowing of money by a lawyer from his client is intended to prevent the lawyer from
taking advantage of his influence over his client.[23] The rule presumes that the client is
disadvantaged by the lawyer's ability to use all the legal maneuverings to renege on his
obligation.[24] Suffice it to say, the borrowing of money or property from a client outside the
limits laid down in the CPR is an unethical act that warrants sanction.

Due to complainant's respect for respondent lawyer, she trusted his representation that the
subject jewelry would be redeemed upon maturity. She accepted respondent lawyer's check,
which was eventually dishonored upon presentment. Despite notice of the dishonor,
respondent lawyer did not take steps to remedy the situation and, on the whole, reneged on
his obligation, constraining complainant to avail of legal remedies against him.

Given the circumstances, the Court does not harbor any doubt in favor of respondent lawyer.
Obviously, his unfulfilled promise to facilitate the redemption of the jewelry and his act of
issuing a worthless check constitute grave violations of the CPR and the lawyer's oath. These
shortcomings on his part have seriously breached the highly fiduciary relationship between
lawyers and clients. Specifically, his act of issuing worthless checks patently violated Rule
1.01 of Canon 1 of the CPR which requires that "[a] lawyer shall not engage in unlawful,
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dishonest, immoral or deceitful conduct." This indicates a lawyer's unfitness for the trust and
confidence reposed on him, shows such lack of personal honesty and good moral character
as to render him unworthy of public confidence, and constitutes a ground for disciplinary
action,[25] and thus seriously and irreparably tarnishes the image of the profession.[26] Such
conduct, while already off-putting when attributed to an ordinary person, is much more
abhorrent when exhibited by a member of the Bar.[27] In this case, respondent lawyer turned
his back from the promise that he once made upon admission to the Bar. As "vanguards of
the law and the legal system, lawyers must at all times conduct themselves, especially in
their dealings with their clients and the public at large, with honesty and integrity in a
manner beyond reproach."[28]

As to the penalty commensurate to respondent lawyer's actions, the Court takes heed of the
guidepost provided by jurisprudence, viz.: "Disbarment should not be decreed where any
punishment less severe, such as reprimand, suspension, or fine, would accomplish the end
desired. This is as it should be considering the consequence of disbarment on the economic
life and honor of the erring person."[29] Hence, caution is called for amidst the Court's
plenary power to discipline erring lawyers. In line with prevailing jurisprudence,[30] the
Court finds it proper to impose the penalty of three-year suspension against respondent
lawyer, with a stern warning that a repetition of any of the infractions attributed to him in
this case, or any similar act, shall merit a heavier penalty.

Anent the monetary demands made by complainant, the Court reiterates the rule that in
disciplinary proceedings against lawyers, the only issue is whether the officer of the court is
still fit to be allowed to continue as a member of the Bar.[31] Thus, the Court is not
concerned with the erring lawyer's civil liability for money received from his client in a
transaction separate, distinct, and not intrinsically linked to his professional engagement.
Accordingly, it cannot order respondent lawyer to make the payment for the subject jewelry
he pawned, the value of which is yet to be determined in the appropriate proceeding.

As to the return of acceptance fees, a clarification is in order. The Investigating

Commissioner erred in referring to them as "attorney's fees"—

As to the charge that respondent abandoned the cases he accepted after payment
of attorney's fees, this commission is not fully satisfied that the complainant was
able to prove it with substantial or clear evidence. It was not fully explained in
the complaint how or in what manner were the cases "abandoned" by the
respondent; and what prejudice was caused to the complainant. This Commission
noted that not a single document or order coming from the court of prosecutor's
office was appended to the Complaint-Affidavit that would at least apprise this
body of what the respondent actually did with the cases he represented.[32]

There is a distinction between attorney's fee and acceptance fee. It is well-settled that
attorney's fee is understood both in its ordinary and extraordinary concept.[33] In its ordinary
sense, attorney's fee refers to the reasonable compensation paid to a lawyer by his client for
legal services rendered. Meanwhile, in its extraordinary concept, attorney's fee is awarded by
the court to the successful litigant to be paid by the losing party as indemnity for damages.
[34] On the other hand, acceptance fee refers to the charge imposed by the lawyer for merely

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accepting the case. This is because once the lawyer agrees to represent a client, he is
precluded from handling cases of the opposing party based on the prohibition on conflict of
interest. Thus, this incurs an opportunity cost by merely accepting the case of the client
which is therefore indemnified by the payment of acceptance fee. Since the acceptance fee
only seeks to compensate the lawyer for the lost opportunity, it is not measured by the nature
and extent of the legal services rendered.[35]

In the case at bench, the amounts of P20,000.00, P18,000.00, and P15,000.00, respectively,
were in the nature of acceptance fees for cases in which respondent lawyer agreed to
represent complainant. Despite this oversight of the Investigating Commissioner, the Court
affirms the finding that aside from her bare allegations, complainant failed to present any
evidence showing that respondent lawyer committed abandonment or neglect of duty in
handling of cases. Hence, the Court sees no legal basis for the return of the subject
acceptance fees.

WHEREFORE, finding respondent Atty. Berlin R. Dela Cruz GUILTY of violating

Canons 1, 16, 17, and Rules 1.01 and 16.04 of the Code of Professional Responsibility, the
Court hereby SUSPENDS him from the practice of law for THREE YEARS with a
STERN WARNING

that a repetition of the same or similar act would be dealt with more severely.

Let copies of this decision be furnished the Bar Confidant to be entered in the personal
record of the respondent as a member of the Philippine Bar; the Integrated Bar of the
Philippines for distribution to all its chapters; and the Office of the Court Administrator for
circulation to all courts throughout the country.

SO ORDERED.

Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Peralta, Bersamin, Del Castillo,
Perez, Mendoza, Reyes, Perlas-Bernabe, Leonen and Jardeleza, JJ., concur.
Brion, J., on leave.

NOTICE OF JUDGMENT

Sirs/Mesdames:

Please take notice that on January 19, 2015 a Decision/Resolution, copy attached herewith,
was rendered by the Supreme Court in the above-entitled case, the original of which was
received by this Office on January 28, 2016 at 9:50 a.m.

Very truly yours,

(SGD)
FELIPA G. BORLONGAN-ANAMA
Clerk of Court

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[1] Rollo, pp. 35-36.

[2] Id. at 10-13, as shown in an Employment Contract between the parties, dated September
6, 2011.

[3] Id. at 12.

[4] Id. at 13.

[5] Id. at 9.

[6] Id. at 7-8.

[7] Id. at 6, docketed as XV-04-INV-12-0043 5.

[8] Id. at 2-5.

[9] Id. at 17.

[10] Id. at 19.

[11] Id. at 27.

[12] Id. at 28.

[13] Id. at 37-41.

[14] Id. at 35-36.

[15]
Section 12. Review and decision by the Board of Governors,
xxxx

b) If the Board, by the vote of a majority of its total membership, determines that the
respondent should be suspended from the practice of law or disbarred, it shall issue a
resolution setting forth its findings and recommendations which, together with the whole
record of the case, shall forthwith be transmitted to the Supreme Court for final action.

xxx

[16] Foronda v. Alvarez, Jr., A.C. No. 9976, June 25, 2014, 727 SCRA 155, 164, citing Arma
v. Montevilla, 581 Phil. 1, 8(2008).

[17]CANON 1 - A lawyer shall uphold the constitution, obey the laws of the land and
promote respect for law and legal processes.
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[18]
CANON 16 - A lawyer shall hold in trust all moneys and properties of his client that
may come into his possession.

[19] CANON 17 - A lawyer owes fidelity to the cause of his client and he shall be mindful of
the trust and confidence reposed in him.

[20]Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct.

[21]Rule 16.04 - A lawyer shall not borrow money from his client unless the client's interests
are fully protected by the nature of the case or by independent advice. Neither shall a lawyer
lend money to a client except, when in the interest of justice, he has to advance necessary
expenses in a legal matter he is handling for the client.

[22] Spouses Conception v. Dela Rosa, A.C. No. 10681, February 3, 2015.

[23] Junio v. Grupo, 423 Phil. 808, 816 (2001).

[24] Frias v. Lozada, 513 Phil. 512, 521-522 (2005).

[25] Wong v. Moya II, 590 Phil. 279, 289 (2008).

[26]
Dizon v. De Taza, A.C. No. 7676, June 10, 2014, 726 SCRA 70, 80, citing Wilkie v.
Limos, 591 Phil. 1, 8 (2008).

[27] Id.

[28] Resurrection v. Sayson, 360 Phil. 313, 322 (1998).

[29] Anacta v. Resurrection, 692 Phil. 488, 499 (2012).

[30]
Junto v. Grupo, supra note 23, Wong v. Atty. Moya II, 590 Phil. 279 (2008), Lao v.
Medel, 453 Phil. 115 (2003), Barrientos v. Libiran-Meleoro, 480 Phil. 661 (2004).

[31] Roa v. Moreno, 633 Phil. 1, 8 (2010).

[32] Rollo, pp. 40-41.

[33] Traders Royal Bank Employees Union-Independent v. NLRC, 336 Phil. 705, 712 (1997).

[34] Ortiz v. San Miguel Corporation, 582 Phil. 627, 640 (2008).

[35] Dalupan v. Gacott, A.C. No. 5067, June 29, 2015.

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