FIRST DIVISION
[A.C. No. 9177. September 29, 2021.][Formerly CBD Case No. 16-5032]
NELSON BRAGADO, complainant, vs.ATTY. LIAM S. PAGDANGANAN, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedSeptember 29, 2021which reads as follows: HTcADC
"A.C. No. 9177 [Formerly CBD Case No. 16-5032] (Nelson Bragado, complainant v. Atty. Liam S. Pagdanganan, respondent).
Before this Court is a Complaint 1(complaint) for disbarment filed on August 8, 2011 by Nelson Bragado (complainant), against the respondent Atty. Liam S. Pagdanganan (respondent). The Integrated Bar of the Philippines (IBP) Board of Governors (Board) recommended the dismissal of the complaint upon ruling favorably on the Motion for Reconsideration filed by respondent. 2
Antecedents
Respondent was counsel of complainant in the civil case entitled "Nelson Bragado v. Landbank of the Philippines," docketed as Civil Case No. 162-SD (02) A.F., for Maintenance of Possession with Prayer for Temporary Restraining Order (TRO) of Preliminary Mandatory Injunction. 3 Complainant alleged in his complaint that sometime in August 2010, respondent suggested settling the case through a "kaliwaan" scheme. 4 Wherein complainant must shell out grease money to facilitate the purchase of the property in dispute in the said civil case for P5,000,000.00. 5 Complainant stated that he issued three (3) checks, in favor of respondent, in the total amount of P5,000,000.00. 6 He also alleged that respondent negotiated and encashed the checks and later failed to return the said amount. 7
In the complaint, complainant accused respondent of violating the following canons and rules of the Code of Professional Responsibility (CPR):
1) Violation of Canon 16, Rules 16.01, and 16.03 for allegedly refusing to return the total amount of Five Million Pesos (Php5,000,000.00) entrusted to him by the Complainant as payment for the purchase of the subject matter in the civil case entitled "Nelson Bragado v. Landbank of the Philippines" docketed as Civil Case No. 162-SD (02) A.F. for Maintenance of Possession with Prayer for TRO of Preliminary Mandatory Injunction (LBP Property). 8
2) Violation of Canon 1, Rules 1.01, 1.02, and 1.03 for allegedly tricking the complainant in giving the said amount for the expeditious settlement of the foregoing civil case but instead was allegedly appropriated by the respondent. 9
3) Violation of Canon 15, Rules 15.05 and 15.06 and Canon 17 for allegedly representing that he had connections and influence of Secretary Proceso Alcala of the Department of Agriculture and member of the Board of Trustees of the Landbank who may help in settling the foregoing case. 10
4) Violation of Canon 3, Rule 3.01 for allegedly recommending the use of a "kaliwaan" scheme wherein the Complainant would shell out grease money to bribe for the purchase of LBP Property. 11
5) Violation of Canon 7, Rule 7.03 for the Respondent's unlawful, dishonest, and deceitful conduct as in his alleged misappropriation of the proceeds of the checks, his failure to return the amount upon Complainant's demand, and his refusal to give information on the status of the case. 12
In respondent's Comment (Comment), 13 filed through registered mail on October 1, 2012, he argued that although he negotiated and encashed the three (3) checks; he did so at the behest of complainant. Respondent also claimed that he immediately turned over the entire amount to complainant upon receipt of the proceeds but failed to have complainant sign an acknowledgment receipt regarding such return. 14 Further, respondent denied the allegation that he had suggested the kaliwaan scheme. Instead, he claimed that he was given the checks to offer a settlement based on the off-the-record remark of the LBP's counsel during trial. 15
The IBP Ruling
On April 10, 2018, Investigating Commissioner Simplicio M. Virtudazo, Jr. (Investigating Commissioner) issued his Report and Recommendation 16(Report) to suspend respondent from the practice of law for six (6) months with a stern warning that a repetition of the same or similar acts will be dealt with more severely. 17
Initially, the IBP Board passed a Resolution dated July 12, 2018 (July 12, 2018 Resolution) it adopted the findings of the Investigating Commissioner, with modification to impose upon respondent a penalty of suspension of two (2) years from the practice of law considering the high amount involved in the case; instead of merely recommending a suspension for six (6) months. 18 Respondent then filed his Motion for Reconsideration 19 dated March 6, 2019. The IBP Board then reversed its ruling, through a Resolution dated June 17, 2019 (June 17, 2019 Resolution), and recommended that the complaint against respondent be dismissed upon finding merit in the arguments raised in respondent's motion for reconsideration. 20
ISSUE
Whether the Court should affirm the recommendation of the IBP Board to dismiss the complaint against respondent.
Respondent's motion for reconsideration raised the following grounds to overturn the IBP Board's initial recommendation for his suspension: a) complainant failed to substantiate the allegations against him, as complainant failed not only to reply to the affirmative allegations he raised in his comment, but also failed to appear at the mandatory conference and to file his position paper; b) complainant even retracted his statements against respondent as shown by the Affidavit of Desistance dated April 20, 2018, which he submitted to the IBP Commission on Bar Discipline on May 16, 2018; and c) respondent returned the legal fees of P300,000.00 paid to him, and the entire sum of P5,000,000.00, to buy peace and settle the matter with complainant. 21
The Court's Ruling
This Court disagrees with the recommendation of the IBP Board. There is substantial evidence that respondent violated Canon 16, Rule 16.03 of the CPR.
Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. 22 The burden of proof rests on the complainant. 23 In this case, while complainant failed to attach physical evidence to his complaint, which unsubstantiated allegations, it must be emphasized that respondent had admitted to encashing the checks and receiving the proceeds therein. The pertinent paragraphs in respondent's Comment 24 provide:
13. When Atty. Diomedes Bragado and Constancia Bragado left for the United States; the Complainant requested the respondent to come over to their house and requested the latter to negotiate the manager's checks in Complainant's possession which are payable to Respondent and thereafter, deliver to the Complainant the proceeds thereof. Complainant also required the Respondent to bring the manager's check payable to LBP.
13.1 When they met, Respondent inquired if Atty. Bragado knows about this and Complainant said yes. He added that he will be the one to negotiate with their contact since he has been talking to him already. Considering that the money was not his, the Respondent obliged. Respondent, together with the Complainant negotiated the Union Banks manager's check in the amount of Php250,000.00. Thereafter, Respondent immediately delivered the cash to the Complainant after negotiating the first check.
13.2 Thereafter, Complainant suggested that [Respondent] go to BDO Tomas Morato Branch to encash the Php2.75 million check also payable to Respondent. Respondent begged off since he had to return to his office in Makati. Before he left, Respondent handed to the Complainant the manager's check payable to LBP in the amount of Php2 million.
13.3 A few days after, Complainant insisted that Respondent negotiate the check for Php2.75 million. Respondent obliged, went with Complainant to the bank and negotiated the check and handed the entire proceeds thereof to the Complainant. Thereafter, Complainant invited Respondent to dine in the area.
14. Sometime in November 2010, the Complainant again requested the Respondent to negotiate the manager's check in the amount of Php2 million, previously payable to LBP but now payable to respondent. Apparently, Complainant was able to negotiate the check previously payable to LBP and make the Respondent the new payee thereof.
14.1 As it was not his money in the first place, the Respondent again obliged the request. After negotiating the Php2 Million check, Respondent handed the entire proceeds thereof to the Complainant. 25 (emphases supplied)
Respondent admitted to encashing the three (3) checks and receiving the proceeds thereon. 26 Later, he adopted the foregoing statements, when he adopted his Comment as his Answer in the proceedings before the IBP. 27 These are considered as judicial admissions. 28 Judicial admissions need not be proved. 29 Thus, complainant need not provide further evidence as to the fact of encashment and receipt by respondent of the checks and proceeds thereon. It is noted that the June 17, 2019 Resolution failed to discuss the effect of this admission and merely focused on the fact that complainant did not provide physical evidence to substantiate his claims.
Given the foregoing admission, respondent then raised the defense that he immediately turned over the proceeds to complainant. Thus, the burden of evidence shifted to respondent to prove his defense. 30 The burden of evidence is "the duty of a party to present evidence to establish or rebut fact in issue to establish a prima facie case." 31 Respondent, however, has not offered any evidence regarding his alleged return of the said amount upon complainant's demand. He merely raised unsubstantiated allegations that he turned over the proceeds to complainant. No credible evidence was presented that he indeed handed over the proceeds of the checks to complainant after the checks were encashed. This gives rise to the presumption that the P5,000,000.00 was appropriated for himself in violation of the trust reposed by complainant. 32
Jurisprudence states that a receipt of payment is the best evidence of the fact of payment. 33 A receipt is a written and signed acknowledgment that money or goods have been delivered. 34 However, respondent explains that he was unable to secure any receipt of payment from complainant as he trusted the latter's representations. 35 Such excuse is unavailing in the light of respondent's judicial admission that he received the proceeds of the checks, which is a substantial amount. Thus, respondent is unable to prove his defense through any evidence other than his own claim. As such, he has failed to satisfy the burden of evidence to rebut the fact of his receipt of the proceeds and failure to return the amount upon complainant's demand.
Further, complainant's Affidavit of Desistance 36 does not affect the proceedings herein. Contrary to the position of respondent, 37 the Court has not "long abandoned" Section 5, Rule 139-B of the Rules of Court, 38 which provides that no investigation shall be interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of the charges or failure of the complainant to prosecute the same.
Disbarment proceedings are sui generis, 39 its main purpose is to determine the fitness of a lawyer to continue acting as an officer and participate in the dispensation of justice. 40 This administrative proceeding is imbued with public interest. 41 Hence, these proceedings should not be made to depend on the whim and caprices of complainants who are merely witnesses to the proceedings. 42
With regard to the proper penalty to be imposed upon respondent, the Court has decided similar cases. In Sison v. Atty. Valdez, 43 the Court imposed a penalty of suspension of three (3) months for violations of Rule 18.04, Canon 18 and Rules 16.01 and 16.03, Canon 16 of the CPR, albeit Atty. Valdez's return of P200,000.00 and an additional P118,352.00. The Court considered the following circumstances in the imposition of the foregoing penalty: a) the duration of the engagement, b) the return of the money, c) the respondent's expression of humility and remorse, and d) the fact that this is the respondent's first administrative case. 44
While in Isalos v. Atty. Cristal, 45 the Court imposed a penalty of one (1) year suspension for violations of Rules 16.01 and 16.03, Canon 16 of the CPR, even though Atty. Cristal had returned the entire amount of P1,200,000.00. This penalty was imposed by the Court after considering the cases that imposed a penalty of suspension from the practice of law for two (2) years. Thus, the return of the full amount owed to the client mitigated the initial penalty.
Given the foregoing, the Court imposes a penalty of one (1) year suspension considering the amount involved, the return of the full amount entrusted to respondent, respondent's expression of humility, and that this is respondent's first administrative case.
WHEREFORE, Atty. Liam S. Pagdanganan is GUILTY of violating Rule 16.03, Canon 16 of the Code of Professional Responsibility. He is hereby SUSPENDED from the practice of law for a period of one (1) year with a STERN WARNING that a repetition of the same or similar acts shall be dealt with more severely. He is DIRECTED to report the date of his receipt of this Resolution to enable the Court to determine when his suspension shall take effect.
Let a copy of this Resolution be furnished the Office of the Bar Confidant to be entered into Atty. Liam S. Pagdanganan's records. Copies shall likewise be furnished to the Integrated Bar of the Philippines and the Office of the Court Administrator for circulation to all courts concerned.
The Notice of Resolution dated July 12, 2018 of the Integrated Bar of the Philippines' Board of Governors; and the Notice of Resolution dated June 17, 2019 and Extended Resolution dated July 29, 2020 of the Integrated Bar of the Philippines' Board of Governors, transmitted by letter dated April 28, 2021 of Atty. Randall C. Tabayoyong, Director for Bar Discipline of IBP Commission on Bar Discipline, together with the records and flash drive file of the case, are NOTED.
SO ORDERED."
By authority of the Court:
(SGD.) LIBRADA C. BUENADivision Clerk of Court
By:
MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1.Rollo, pp. 1-6.
2.Id. at 1-7.
3.Id. at 1.
4.Id. at 1-2.
5.Id. at 2.
6.Id.
7.Id.
8.Id. at 4.
9.Id.
10.Id. at 5.
11.Id.
12.Id. at 5-6.
13.Id. at 47-73.
14.Id. at 51.
15.Id. at 50.
16.Id. at 188-203.
17.Id. at 203.
18.Id. at 187.
19.Id. at 210-223.
20.Id. at 238.
21.Id.
22. Section 6, Rule 133, 2019 Amendments to the 1989 Revised Rules on Evidence, A.M. No. 19-08-15-SC.
23. Section 1, Rule 131, 2019 Amendments to the 1989 Revised Rules on Evidence, A.M. No. 19-00-15-SC.
24.Id. at 47-73.
25.Id. at 51.
26.Id. at 3-4.
27.Id. at 131.
28.Gonzales-Saldana v. Spouses Niamatali, 843 Phil. 787, 793 (2018).
29. Section 4, Rule 129, 2019 Amendments to the 1989 Revised Rules on Evidence, A.M. NO. 19-08-15-SC.
30. See Cham v. Atty. Paita-Moya, 578 Phil. 566, 573 (2008); citing Alonzo v. San Juan and Far East Bank and Trust Company v. Quemerit, 424 Phil. 721, 731 (2002).
31.Supra note 23.
32.Ko v. Attys. Maduramente, A.C. No. 11118, July 14, 2020; citing Egger v. Duran, 795 Phil. 9, 17 (2016).
33.Alonzo v. San Juan, 491 Phil. 232, 244 (2005).
34.Id.
35.Rollo, p. 54.
36.Id. at 227.
37.Id. at 212.
38. Section 5, Rules 139-B of the Rules of Court which states:
Section 5. Service or dismissal. — x x x
No investigation shall be interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of the charges or failure of the complainant to prosecute the same, unless the Supreme Court motu proprio or upon recommendation of the IBP Board of Governors, determines that there is no compelling reason to continue with the disbarment or suspension proceedings against the respondent.
39.Atty. Yumul-Espina v. Atty. Tabaquero, 759 Phil. 653, 658 (2016).
40.Bernal, Jr. v. Atty. Prias, A.C. No. 11217, 7 October 2020.
41.Laurel v. Delute, A.C. No. 12298, September 1, 2020.
42. See Antonio v. Meñara, 489 Phil. 752, 759 (2005).
43. 814 Phil. 1007 (2017).
44.Id. at 1017-1018.
45. 821 Phil. 175 (2017).