FIRST DIVISION
[A.C. No. 9350. March 13, 2019.][Formerly CBD Case No. 07-2015]
ATTYS. JOEY L. BALUYUT AND PATRICK L. MARIANO, petitioners, vs. ATTY. DEXTER A. TAY, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated March 13, 2019which reads as follows:
"A.C. No. 9350 [Formerly CBD Case No. 07-2015] (Attys. Joey L. Baluyut and Patrick L. Mariano v. Atty. Dexter A. Tay). — In this administrative complaint 1 filed by Atty. Joey L. Baluyut and Atty. Patrick L. Mariano (collectively, complainants) against respondent Atty. Dexter A. Tay (Atty. Tay), We reiterate that a lawyer's act of directly negotiating with the opposing parties without informing their counsel is a violation of Canon 9 of the Canons of Professional Ethics (CPE) and Rule 8.02 of the Code of Professional Responsibility (CPR).
Complainants were counsels for a group of 35 dismissed employees who filed a complaint against their employer E-Pacific Global Contact Center, Inc. (EPAC) before the National Labor Relations Commission (NLRC). 2 Respondent Atty. Tay represented EPAC in the case. The employees obtained a favorable decision which ordered EPAC to pay them the total amount of P331,888.95, plus 10% attorney's fees. 3 The employees filed a partial appeal from the decision, and a motion for partial execution. 4 EPAC did not file an appeal nor posted a bond to hold in abeyance the execution of the decision. 5
Shortly after the Labor Arbiter rendered the decision, several employees went to the office of respondent Atty. Tay. The employees disclosed their intention to amicably settle the dispute and file a motion to dismiss. For its part, EPAC will issue in the employees' favor the remainder of their respective salaries. The parties present during the meeting agreed to formalize their agreement before the Labor Arbiter on March 28, 2007. 6
Accordingly, on March 28, 2007, 19 of the dismissed employees and respondent Atty. Tay met before Atty. Joyrich Golangco (Atty. Golangco), Deputy Executive Clerk, Third Division of the NLRC. 7 In accordance with the agreement, the employees executed quitclaims and releases in favor of EPAC after receiving their respective checks.
The next day, March 29, 2007, complainants received a manifestation 8 signed by Atty. Tay alleging that: (1) 20 employees in the labor case went to his office and divulged their intention to amicably settle the matter upon which they shall desist and file a motion to dismiss, with prejudice, the labor case; (2) EPAC agreed to issue to the employees the remainder of their respective salaries and other monies granted to them; and (3) they agreed to formalize their agreement before and in the presence of the Labor Arbiter on March 28, 2007. 9 aScITE
On May 7, 2007, complainants received a copy of a consolidated motion to dismiss dated April 30, 2007 from respondent Atty. Tay. 10 Moreover, sometime in June 2007, complainants were informed by the employees that some of them had indeed met with Atty. Tay and had already settled their claims with EPAC.
Complainants filed a motion to set for hearing their motion for partial execution on June 29, 2007, furnishing Atty. Tay a copy. Atty. Tay responded by filing an ex-parte motion to hold hearing on partial execution in abeyance dated June 28, 2007 11 alleging that several of the dismissed employees had already settled their claim against EPAC.
In view of the foregoing, complainants filed a complaint against Atty. Tay claiming that in negotiating with their clients behind their backs, respondent knowingly violated the CPR, specifically Canons 8 and 15, Rules 8.02, 15.03, 15.04, 19.01, 19.03, as well as, Sections 20 and 27 of Rule 138 of the Rules of Court. 12
Specifically, complainants alleged that Atty. Tay had their clients sign various documents, including but not limited to waivers, release and quitclaims, in the absence and without their presence as counsel. Complainants further alleged that the same occurred on April 30, 2007, when other employees were made to sign the documents also without their presence as counsel.
In his answer 13 and position paper, 14 Atty. Tay admitted having met with some of complainants' clients but denied having instigated the meeting. 15 He claimed that it was the clients who voluntarily approached him in their desire to finally amicably settle with EPAC. He did not ask the clients to sign various documents as it was the Deputy Executive Clerk of the NLRC who asked them to do so. 16 He also admitted having met complainants' other clients but did not see the need to inform them about it because the clients told him that they have already terminated the services of complainants as their counsel. 17 He likewise admitted that the consolidated motion to dismiss dated April 30, 2007, filed by complainants' clients originated from his office but claimed that he sent the pleading in good faith and in compliance with the Deputy Executive Clerk's directive. 18
In his report and recommendation, 19 Integrated Bar of the Philippines (IBP) Investigating Commissioner Eduardo V. De Mesa (Commissioner De Mesa) found that Atty. Tay violated Canon 9 of the CPR. 20 The IBP-Committee on Bar Discipline (IBP-CBD) found that Atty. Tay knew that the employees were represented by counsel. As a lawyer, he knew that he and the employees, who are not lawyers, were not on equal footing. His allegation that the employees had already terminated the services of complainants cannot absolve him. He should have asked for proof that they notified their counsels of the severance of relationship. Commissioner De Mesa recommended that he be suspended for one year. 21
On May 15, 2011, the IBP Board of Governors (IBP Board) unanimously adopted, with modification, the report and recommendation of Commissioner De Mesa. 22 The IBP Board modified the recommended penalty of one year suspension from the practice of law to a mere reprimand.
In view of this, We required the IBP Board, through Resolution dated March 19, 2012, 23 to justify the modification in the penalty. In compliance with the Resolution, the IBP-CBD submitted a letter dated January 20, 2015 24 explaining that by reason of the changes of administration in the IBP, and the dearth of any record (in their possession) regarding the case, they could not ascertain the reason behind the IBP Board's modification of the penalty.
We adopt the findings of Commissioner De Mesa, but modify the penalty recommended.
Canon 9 of the CPE provides, thus:
9. Negotiations with opposite party.
A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel, much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law. HEITAD
Rule 8.02 of the CPR states, thus:
Rule 8.02 A lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer; however, it is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel.
In Likong v. Lim, 25 We held that a lawyer's failure to notify the opposing party's counsels about the compromise agreement (that the lawyer drafted) between his client and the opposing party is a violation of Canon 9 of the CPE and Rules 1.01, 26 8.02, and 15.03 27 of the CPR. Subsequently in Camacho v. Pangulayan, 28 We ruled that negotiating with the opposing parties without even communicating with their counsel of record is "an inexcusable violation of the canons of professional ethics and in utter disregard of a duty owing to a colleague." 29 In the recent case of Cabalida v. Lobrido, 30 We held that a lawyer's act of preparing a Memorandum of Agreement without at least notifying the opposing counsel prior to its submission to the court is a violation of Rule 8.02 of the CPR.
In this case, Commissioner De Mesa found that Atty. Tay failed to comply with Canon 9 of the CPE and Rule 8.02 of the CPR when he met with complainants' clients on several occasions without complainants' knowledge and consent. 31 This is despite Atty. Tay's knowledge that the employees were represented by complainants. Commissioner De Mesa noted that complainants, as counsels, were furnished with a copy of EPAC's Answer to Appellant's Memorandum on Appeal. 32 Commissioner De Mesa also noted the Manifestation dated March 24, 2007 filed by Atty. Tay informing complainants about the agreement, but was received by the latter only on March 29, 2007, a day after the March 28, 2007 meeting before the Labor Arbiter. Consequently, the meeting proceeded without the presence of complainants. 33
Supposing as true that the employees have indeed voluntarily gone to Atty. Tay's office to settle their case without their counsels, Atty. Tay was well aware that he and the employees (who are not lawyers) were then, not on equal footing. During that meeting, the employees were not assisted by counsel, who could have at least sufficiently informed them about the consequences of the agreement; especially so that the signing of the waivers, release and quitclaims entailed a bar against all other claims of the employees against EPAC. This is precisely the inequitable situation, which the rules prohibiting lawyers from conferring with the adverse party in the absence of counsel, tries to avert.
There is also no proof to respondent's allegations that the employees informed him that they had already terminated the services of complainants as their counsel. Hence, owing at least to professional courtesy, Atty. Tay should have verified the alleged termination of lawyer-client relationship with complainants. This failure, whether by design or oversight, is inexcusable and is in utter disregard of a duty and of simple courtesy owing to a colleague. 34
In Jader-Manalo v. Pilares, 35 We held Atty. Pilares liable for violation of Rule 8.02 of the CPR. In that case, Atty. Pilares was the counsel for the mother and the granddaughter in an estate proceeding against the children of the deceased. The opposing counsel, Jader-Manalo filed a disbarment complaint against Atty. Pilares for meeting with the opposing counsel's clients, and having them sign a Special Power of Attorney in favor of their mother to dispose of the inherited properties, without complainant's knowledge. Jader-Manalo cited another instance when the trial prosecutor manifested (in a related falsification case involving the same parties) that her clients, assisted by Atty. Pilares' secretary, went to the prosecutor's office to execute an affidavit of desistance, again without her consent. Jader-Manalo further submitted that she was surprised when respondent manifested in open court that a compromise agreement was already executed by the parties, also without her knowledge and consent. Based on these circumstances, Jader-Manalo posited that Atty. Pilares maliciously violated the CPR.
The Investigating Commissioner found respondent liable for simple misconduct and recommended a penalty of reprimand. The IBP Board adopted the findings, but modified the penalty of reprimand to include a stern warning "to be more circumspect in his conduct as senior and old-time practicing lawyer."
This Court adopted the findings of the IBP, but modified the penalty to six months suspension in the practice of law. It held, to wit:
Lawyers must not engage in unlawful, dishonest, immoral, or deceitful conduct in their professional dealings. They also have the correlative duty to exhibit courtesy, candor, and fairness to their colleagues. Under Canon 1, Rule 1.01 and Canon 8 of the Code of Professional Responsibility: ATICcS
Rule 1.01 — A lawyer shall not engage in unlawful, dishonest, immoral, or deceitful conduct.
xxx xxx xxx
Canon 8 — A lawyer shall conduct himself with courtesy, fairness and candor toward his professional colleagues, and shall avoid harassing tactics against opposing counsel.
Atty. Pilares does not deny that he assisted Atty. Jader-Manalo's clients in filing an affidavit of desistance to benefit his own client, without Atty. Jader-Manalo's knowledge. Even in the event that he was merely following his client's directive or that Atty. Jader-Manalo's clients were amenable to his assistance, he should have known that assisting them without their counsel's knowledge is unethical.
Atty. Pilares represented conflicting interests in the litigation. All his communications to the opposing parties should have been coursed through their counsel. When he was informed by his client that the opposing parties were open to withdrawing the criminal case, he should have contacted their counsel as a matter of professional courtesy. His act of directly contacting and assisting his opposing counsel's clients without her knowledge gave him an unethical advantage in the litigation. x x x 36
In view of the foregoing, We hold that Atty. Tay engaged in conduct unbecoming of a member of the legal profession, in violation of Canon 9 of the CPE, and Rule 8.02 of the CPR. We also find that a penalty of suspension of six months is appropriate following our rulings 37 imposing the same period of suspension on the erring lawyer for violation of Rule 8.02 of the CPR.
WHEREFORE, Atty. Dexter A. Tay is found GUILTY of violating Canon 9 of the Canons of Professional Ethics, and Rule 8.02 of the Code of Professional Responsibility. He is hereby SUSPENDED from the practice of law for SIX (6) MONTHS effective from notice, with a stern warning that any similar infraction in the future will be dealt with more severely.
Let a copy of this Resolution be entered in respondent's personal record as an attorney and member of the Bar, and furnished the Bar Confidant and the Court Administrator for circulation to all courts in the country. The Integrated Bar of the Philippines is hereby ORDERED to observe the directive herein.
SO ORDERED."
Very truly yours,
(SGD.) LIBRADA C. BUENADivision Clerk of Court
Footnotes
1.Rollo, pp. 1-11.
2.Id. at 135.
3.Id.
4.Rollo, pp. 23-25, 135-136.
5.Id. at 5.
6.Id. at 27-28.
7.Id. at 136.
8.Id. at 27-29.
9.Id. at 27-28.
10.Id. at 137.
11.Id. at 32-34.
12.Id. at 9-10.
13.Id. at 36-50.
14.Id. at 113-122.
15.Id. at 61.
16.Id. at 62-63.
17.Id. at 63.
18.Id. at 65.
19.Id. at 133-141.
20.Id. at 138-141. The Report of Commissioner De Mesa cites Canon 9 of the Code of Professional Responsibility, but the provision quoted refers to Canon 9 of the Canons of Professional Ethics (CPE). Id. at 138.
21.Id. at 141.
22. Id. at 132.
23. Id. at 142.
24. Id. at 154.
25. A.C. No. 3149, August 17, 1994, 235 SCRA 414.
26. Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
27. Rule 15.03 A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.
28. A.C. No. 4807, March 22, 2000, 328 SCRA 631.
29. Id. at 634.
30. A.C. No. 7972, October 3, 2018.
31. Rollo, p. 138.
32. Id. at 139. We also note that complainants were also furnished a copy of the ex parte motion to hold hearing on partial execution in abeyance, and the consolidated motion to dismiss, all of which were filed by Atty. Tay.
33. Id.
34. Cabalida v. Lobrido, Supra note 30, at 20.
35. A.C. No. 10664 (Formerly CBD Case No. 11-3050), January 27, 2016.
36. Id.
37. Cabalida v. Lobrido, Supra note 30, at 24; Binay-an v. Addog, A.C. No. 10449, July 28, 2014.