THIRD DIVISION
[A.C. No. 10334. July 15, 2020.]
JESUSA J. BERIDO, complainant, vs.ATTY. DELFIN V. NACUA and ATTY. BIENVENIDO BARING, JR., respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution dated July 15, 2020, which reads as follows:
"A.C. No. 10334 — (JESUSA J. BERIDO, complainant v. ATTY. DELFIN V. NACUA and ATTY. BIENVENIDO BARING, JR., respondents). — Before the Court is an Administrative Complaint 1 filed by Jesusa J. Berido (complainant) against Atty. Delfin V. Nacua (Atty. Nacua) and Atty. Bienvenido Baring, Jr. (Atty. Baring) for gross negligence, violation of the Code of Professional Responsibility (Code) and the Lawyer's Oath in connection with Civil Case No. CEB-37279 before Regional Trial Court (RTC) of Cebu City, Branch 19, entitled "Sps. Eutiquio and Nelia Dico vs. Sps. Renato Berido and Jesusa Berido."
Factual Antecedents
Spouses Renato Berido and Jesusa J. Berido (spouses Berido) hired the legal services of Atty. Nacua, a 98-year old member of the Philippine Bar, to represent them in a case for reconveyance of property before the RTC or Cebu City. Atty. Nacua prepared, drafted, and filed the Answer dated February 4, 2011 on behalf of the spouses Berido. However, the spouses Berido were declared in default for their failure to appear along with their counsel during the pre-trial conference. This is not the first time that the pre-trial conference was set, prior settings were reset at the instance of the spouses Berido due to the sickness of their counsel. Atty. Nacua filed a motion for reconsideration, and later, an amended motion for reconsideration of the order of default. The motions were, however, denied by the court for not being the proper remedy. According to the RTC, they should have filed a motion to lift order of default. Moreover, the motions were not accompanied by an affidavit of merit. The RTC noted that the spouses Berido participated in the ex-parte presentation of evidence when they filed their comment and opposition to the formal offer of evidence by the plaintiff thereby placing them in estoppel to question the declaration as in default. On January 23, 2013, Atty. Nacua filed a motion to withdraw as defendant's counsel with conformity of the spouses Berido. 2
Atty. Baring entered his appearance in lieu of Atty. Nacua. Atty. Baring prepared and drafted a notice of appeal dated May 17, 2013, which bears his signature. The docket fees for the appealed cases were paid but the notice of appeal itself was never served and filed by Atty. Baring resulting in the finality of the judgment by default. A writ of execution was filed as a matter of course. Thus, complainant filed an administrative complaint for gross negligence, violation of the Code and the Lawyer's Oath against Atty. Nacua and Atty. Baring. 3
Atty. Baring contends that complainant should be blamed for the non-filing the notice of appeal because she insisted on filing a petition for certiorari under Rule 65 of the Rules of Court. In support of his claim, Atty. Baring submitted the affidavit of his office secretary and messenger, Josephine Garrido (Garrido), who stated that she told Atty. Baring it was complainant's decision not to comply with the proper procedure since she was not comfortable with the filing of the notice of appeal, and instead, wanted to file a petition for certiorari. On November 26, 2013, Atty. Baring filed a motion to withdraw as counsel in Civil Case No. CEB-37279, which had the conformity of complainant. The RTC granted the motion. 4
For his part, Atty. Nacua denied the allegation of gross negligence against him claiming excusable neglect due to his poor health. He further stated that he did not know of the hearings conducted by Presiding Judge Wilfredo Navarro on May 20, 2011 and December 7, 2011 because he was confined in the hospital as evidenced by the Certificate of Confinement dated December 5, 2011, signed by Dr. Elfleda A. Hernandez, M.D. Another Medical Certification dated January 27, 2012 signed by Dr. Miguel Pa Mancao was attached to the complaint, advising Atty. Nacua to rest. He argued that his motion for reconsideration and amended motion for reconsideration were very reasonable. However, he was surprised that the RTC denied both motions. 5
Report and Recommendation of the Investigating Commissioner
The Investigating Commissioner submitted the following recommendation: 6
WHEREFORE, it is hereby recommended as follows:
1) That the complaint against Atty. Delfin V. Nacua, be dismissed for lack of merit; and
2) That Atty. Bienvenido V. Baring, Jr. should be admonished for neglect of duty that resulted in the failure to file the Notice of Appeal, with warning that repetition of the same or similar·offense shall be dealt with sternly in the future.
RESPECTFULLY SUBMITTED. 7
Recommendation of the Integrated Bar of the Philippines (IBP) Board of Governors
On June 20, 2015, a resolution was passed by the IBP Board of Governors, thus:
RESOLUTION NO. XXI-2015-529
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this Resolution as Annex "A", and finding the recommendation to be fully supported by the evidence on Record and applicable laws, and considering that the Complaint against Atty. Delfin V. Nacua lacks merit, the case against him is hereby DISMISSED. For Respondent's neglect of duty resulting to his failure to file a Notice of Appeal, Atty. Bienvenido V. Baring, Jr. is hereby ADMONISHED with Warning that repetition of similar act shall be dealt with more severely.8
Not satisfied, complainant filed a motion for reconsideration. 9 On January 26, 2017, a Resolution 10 was passed by the IBP Board of Governors denying complainant's motion for reconsideration, as follows:
RESOLUTION NO. XXII-2017-763
RESOLVED to DENY the Motion for Reconsideration there being no new reason and/or new argument adduced to reverse the previous findings and decision of the Board of Governors.11
The Court's Ruling
In administrative cases for disbarment or suspension against lawyers, it is the complainant who has the burden to prove by preponderance of evidence the allegations in the complaint. 12 In the instant case, complainant was not able to prove by preponderance of evidence that Atty. Nacua violated the Code and the Lawyer's Oath.
This Court agrees with the findings of the Investigating Commissioner that Atty. Nacua sufficiently explained the reason for his absence during the pre-trial conference, that is his poor health due to his advanced age. Meanwhile, the spouses Berido did not explain satisfactorily why they did not appear during the pre-trial conference. It is the absence of the spouses that caused the declaration in default. Pursuant to Section 4, Rule 18 of the 2019 Amended Rules of Court, it is not only the presence of counsel that is required during the pre-trial conference but more importantly, the presence of the parties. This Court cannot issue an order of default if the defendant is present even though the counsel is absent. Conversely, the court can declare the defendant as in default for failure to appear during the pre-trial conference even though the counsel is present.
On the other hand, with respect to Atty. Baring, the facts on record clearly established his failure to live up to the standards of diligence and competence in the legal profession. Atty. Baring cannot put the blame on his office secretary and messenger Garrido, together with complainant, as to why the notice of appeal was not filed at all. Atty. Baring should not have assumed that his instructions were followed and should have verified whether the notice of appeal was indeed filed. Lawyers engaged to represent a client in a case bear the responsibility of protecting the latter's interest with warmth, zeal and utmost diligence. 13 They must constantly keep in mind that their actions or omissions would be binding on the client. 14 Considering, however, that this is Atty. Baring's first offense, the mitigating circumstance in the imposition of the penalty should benefit him.
CANON 18, Rules 18.03 of the Code of Professional Responsibility clearly provides:
CANON 18 — A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.
Rule 18.03 — A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection there with shall render him liable. (Emphasis supplied)
The relationship between a lawyer and a client is "imbued with utmost trust and confidence." 15 Lawyers are expected to exercise the necessary diligence and competence in managing cases entrusted to them. They commit not only to review cases or give legal advice, but also to represent their clients to the best of their ability without need to be reminded by either the client or the court. The expectation to maintain a high degree of legal proficiency and attention remains the same whether the represented party is a high-paying client or an indigent litigant. 16
In cases involving a lawyer's failure to file a brief or other pleading before an appellate court, this Court has imposed suspension from the practice of law for periods ranging from three to six months, and in most serious cases, even disbarment. 17 Considering that this is Atty. Baring's first administrative offense, we find that his suspension from the practice of law for three months is appropriate under the circumstances.
WHEREFORE, the Court finds Atty. Bienvenido V. Baring, Jr., GUILTY of violation of Rule 18.03 of the Code of Professional Responsibility, and he is hereby SUSPENDED from the practice of law for three (3) months effective upon finality of this Resolution, with warning that a repetition of the same or similar violation shall be dealt with more severely. The charges against Atty. Delfin V. Nacua are hereby DISSMISSED for lack of merit.
SO ORDERED."
By authority of the Court:
(SGD.) MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court
Footnotes
1.Rollo, pp. 3-9.
2.Id. at 441-442.
3.Id. at 442.
4.Id.
5.Id. at 442-443.
6.Id. at 441-447.
7.Id. at 446-447.
8.Id. at 440.
9.Id. at 449-456.
10.Id. at 474-475.
11.Id. at 474.
12. See Penilla v. Atty. Alcid, Jr., 717 Phil. 210, 222 (2013).
13.Credito v. Atty. Sabio, 510 Phil. 92, 97 (2005), citing Macarilay v. Serina, 497 Phil. 348, 357 (2005); Reyes v. Vilan, 496 Phil. 1, 4-5 (2005); and Amaya v. Tecson, 491 Phil. 111, 117 (2005).
14.Id. citing Tamayo v. Tamayo, Jr., 504 Phil. 179, 185 (2005); Torres v. Orden, 386 Phil. 216, 220 (2000); and Manila Electric Company v. Court of Appeals, 265 Phil. 206, 215 (1990).
15.Caranza Vda. de Saldivar v. Atty. Cabanes Jr., 713 Phil. 530, 537 (2013).
16.Id. at 538.
17.MENDOZA Vda. de Robosa v. Atty. Mendoza, 769 Phil. 359, 377 (2015).