THIRD DIVISION
[A.C. No. 11882. March 14, 2018.]
FERNANDO M. CAPATI, complainant, vs. ATTY. MARCELINO M. MILLO, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedMarch 14, 2018, which reads as follows:
"A.C. No. 11882 (Fernando M. Capati v. Atty. Marcelino M. Millo) — This resolves the Complaint-Affidavit 1 for disbarment or disciplinary action filed by Fernando M. Capati (complainant) against Atty. Marcelito M. Millo (respondent) for alleged violation of Rule 1.03 of Canon 1, and Rules 12.02 and 12.04 of Canon 12 of the Code of Professional Responsibility.
The Antecedents
Complainant is the defendant in Civil Case No. 940-C-11 for Annulment of Real Estate Mortgage, Extrajudicial Foreclosure Proceedings, Certificate of Sale and Transfer of Certificate of Title filed by Teodoro Tanglao, Jr., Eliseo Tanglao, Silos Tanglao, Rebecca Tanglao Mallari, Adelina Tanglao Descanzo, Carlito Galang, Janus Galang, Carlyle Galang, Cris Imilo Galang, Lea Mallari, and heirs of Lamberto Tanglao represented by Melanie Tanglao (plaintiffs). It appears that Lea Mallari (Mallari), one of the plaintiffs, obtained a loan from complainant with real estate mortgage over a parcel of land covered by TCT No. 442839. Mallari allegedly defaulted on the payment of the loan so complainant sent a demand letter for payment on August 18, 2009. Despite demand, Mallari did not pay the loan.
As a result, complainant filed a petition for extrajudicial foreclosure. Mallari filed the following pleadings and initiated the following actions with the assistance of respondent: (1) Appearance with Motion for Suspension of Public Auction; (2) Consignation, Civil Case No. 14237 with Branch 58, Angeles City; (3) Petition for Certiorari, CA G.R. No. SP No. 116264, Court of Appeals; (4) Petition for Certiorari, CA G.R. No. SP No. 112132, Court of Appeals; and (5) Motion for Reconsideration of Decision. Other pleadings supposedly filed by Mallari and the plaintiffs with the assistance of respondent counsel include: (1) Verified Opposition to Ex-Parte Issuance of Writ of Possession in LRC Case No. 726-C-11; (2) Urgent Verified Motion to Set Aside Sale and Writ of Possession; (3) Complaint for Annulment of Real Estate Mortgage, Extrajudicial Foreclosure Proceedings, Certificate of Sale and Transfer Certificate of Title; and (4) Motion to Quash Writ of Possession. Plaintiffs also caused the annotation of a Notice of Lis Pendens on the title of the subject property.
As alleged by complainant, the courts upheld the validity of the real estate mortgage and extrajudicial foreclosure and the property subject of the mortgage was registered in complainant's name.
The core allegations in the complaint against respondent are:
1. Instead of actually making a choice of the forum of their actions, plaintiffs, conceivably through the encouragement of their lawyer, filed their actions in all available courts, and invoke all relevant remedies simultaneously and successively. Such practice will result to conflicting adjudications among different courts and consequent confusion inimical to an orderly administration of justice. This additionally had created extreme inconvenience to me; 2
xxx xxx xxx
3. The foregoing acts constitute violation of oath of office, and thus, the disbarment, suspension or sanction of the counsel of the plaintiffs, Atty. Marcelito M. Millo, is warranted. He is insisting on his clients' patently unmeritorious case and interposed multiple suits merely to delay litigation. 3 x x x (emphasis, italics, and underscoring in the original)
Through an Order 4 dated August 15, 2012, the Integrated Bar of the Philippines (IBP)-Commission on Bar Discipline (Commission) ordered respondent to submit his comment within fifteen (15) days from receipt of the order. Respondent filed a Motion for Extension of Time to File Answer 5 dated September 24, 2012, asking for an extension of fifteen (15) days. The Commission subsequently issued a Notice of Mandatory Conference, 6 directing the parties to appear before the commission on February 26, 2014.
During the scheduled preliminary hearing, neither the complainant nor the respondent appeared. A representative of respondent, however, filed a motion for postponement. Hence, the mandatory conference was reset to April 23, 2014. 7 At the April 23, 2014 mandatory conference, the respondent appeared but not the complainant. Parties were ordered to submit their respective verified position papers within ten (10) days from receipt of the order. 8 The case was thereafter re-raffled and assigned to Commissioner Leilani R. Vizconde-Escueta (Investigating Commissioner). The parties were again directed to appear at a mandatory conference set on December 7, 2015. 9 At the second mandatory conference, only respondent appeared. The mandatory conference was terminated and both parties were ordered to submit their respective verified position papers. 10 Respondent filed a motion for a fresh period to file his position paper. 11
Despite filing his motion for extension to file answer and motion for fresh period to file position paper, respondent failed to submit any pleading relating to his defense. Thus, in IBP Resolution No. XXII-2016-482 12 dated August 27, 2016, IBP Director Ramon S. Esguerra was ordered to issue a show cause order against respondent for his failure to file a verified answer. A show cause order 13 was thereafter issued.
The Investigating Commissioner proceeded with the resolution of the case despite the absence of position papers from either party.
Position of complainant
In his complaint-affidavit dated July 24, 2012, complainant asseverates that the pleadings and motions filed by the plaintiffs were filed in different fora but asked for the same relief. Through the encouragement of respondent, the plaintiffs filed the actions and invoked all relevant remedies simultaneously and successively, which would result in conflicting decisions of the courts and inconvenience to him. Respondent insisted on Mallari's and plaintiffs' case and filed the multiple suits to cause delay in the administration of justice. 14 Thus, respondent violated the Lawyer's Oath and the Code of Professional Responsibility as his acts resulted in the lack of resolution on the case for three (3) years, which delay is solely attributed to respondent.
Position of respondent
Respondent raises no defense as he failed to submit an answer and verified position paper. From the records, the only instance respondent defended his side was in response to the show cause order, 15 wherein he filed his compliance/explanation. He states therein that he thought, in good faith, that the Commission would be able to resolve the complaint even without him filing an answer. He further claims that the pleadings filed were all meritorious and made use of legal remedies that plaintiffs can use. 16
Report and Recommendation of the IBP
The Report and Recommendation 17 of investigating Commissioner dated June 3, 2016 recommended that the complaint against respondent be dismissed. The Investigating Commissioner stated that the complainant has the burden to prove the allegations in the complaint. In administrative proceedings, the standard of substantial evidence is required. According to Investigating Commissioner, while complainant attached copies of oppositions, motions, replies and the complaint filed by respondent on behalf of his clients, these proved nothing except that respondent filed the same. The evidence did not meet the standard that could have been the bases of administrative sanctions on respondent. 18
The IBP-Board of Governors adopted the recommendation of Investigating Commissioner in its Resolution No. XXII-2016-482. 19 It, however, directed the issuance of a show cause order for failure of respondent to file an answer. 20
In a Memorandum 21 dated May 19, 2017, Juan Orendain P. Buted, Assistant Director for Bar Discipline (Asst. Dir. Buted), recommended that respondent be reprimanded for his failure to file his verified answer with a warning that a repetition of such conduct shall be dealt with more severely.
Thereafter, the IBP transmitted the case to the Court for final action.
The sole issue here is whether respondent should be held administratively liable for violating the Code of Professional Responsibility and the Lawyer's Oath.
The Court's Ruling
This Court finds no cogent reason to depart from the findings and recommendation of Investigating Commissioner which were adopted by the IBP Board of Governors.
Respondent allegedly violated the Lawyer's Oath and the Code of Professional Responsibility for the filing of pleadings, complaint, and petitions before various courts. The pertinent provisions of the Code of Professional Responsibility state:
RULE 1.03. A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man's cause.
RULE 12.02. A lawyer shall not file multiple actions arising from the same cause.
RULE 12.04. A lawyer shall not unduly delay a case, impede the execution of a Judgment or misuse Court processes.
A proceeding for disbarment continues despite the desistance of a complainant, failure of complainant to prosecute the same, or the failure of respondent to answer the charges against him. 22 And so, despite the seeming disinterest of complainant here, the case continued. Relevantly, a disbarment case is sui generis, the issue being whether respondent is still fit to continue to be an officer of the court in the dispensation of justice, and thus within the interest of the Court to resolve disbarment complaints.
For administrative proceedings such as the case at bar, the quantum of proof is substantial evidence. This has been the rule subscribed to by the Court in a long line of cases, most recently in Dela Fuente Torres v. Dalangin. 23 As defined in Rule 133, Section 5 of the Rules of Court, substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.
It is equally well-settled that the burden of proof rests with complainant in disbarment proceedings. The complainant should be able to establish his case against the respondent by clear, convincing and satisfactory evidence. 24 The power to disbar should only be exercised in clear cases of misconduct such that the misconduct affects the standing and character of the lawyer as an officer of the Court and as a member of the bar. 25 As found by the Investigating Commissioner, complainant was unable to overcome the burden of proof. The Court notes the findings of Investigating Commissioner, to wit:
In an effort to prove his allegations, Complainant attached to his Complaint copies of Oppositions, Motions, Replies and Complaint filed by Respondent on behalf of his clients. Notably, these pleadings prove nothing but that the Respondent indeed filed the same. Sad to say, Complainant did not submit any affidavit of witnesses to support his charge of inducing his clients to file or initiate baseless pleadings.
Regrettably, the evidence against Respondent does not meet the mandated standard. At best, Complainant's allegations are mere presumptions which, unfortunately, cannot be a valid basis to slap Respondent with administrative sanctions.
Looking at the present instance with an absolutely objective eye, this Commission is not disposed to accept as gospel truth complainant's imputation of administrative wrongdoing to Respondent in view of the existence of a wide chasm between the accusations and proof. The accusations should be fittingly treated for what they are — mere accusations founded on speculation and conjecture, if not sheer temerity. 26 (emphasis supplied)
Complainant's main argument is that plaintiffs filed numerous pleadings and insisted on their case conceivably through respondent's encouragement. However, the allegation against respondent, that he encouraged his clients to continue with the case and avail of all possible remedies outside of the ambit of propriety of his role as legal counsel, was not proven by substantial evidence. Surely, a lawyer owes entire devotion in protecting the interest of his client, warmth and zeal in the defense of the clients' rights. 27 Without any showing that this was improper or against the law, this cannot give rise to a lawyer's administrative liability.
The finding of non-culpability for violation of the Code of Professional Responsibility based on the complaint notwithstanding, the Court cannot ignore respondent's inaction on the complaint against him. He requested for extensions to file an answer and a verified position paper but submitted neither. A show cause order was issued to make him explain his failure to file an answer. 28 In answering the show cause order, he claimed that he thought the Commission would be able to resolve the complaint even without his answer.
The Court takes judicial notice of the fact that this is not the first disbarment complaint against respondent where he showed this disrespectful attitude. In the case of Pesto v. Millo, 29 respondent displayed the same attitude towards disbarment proceedings against him, and the Court already remarked that this demeanor should not be countenanced, to wit:
A serious administrative complaint like this one should not be taken for granted or lightly by any respondent attorney. Yet, Atty. Millo did not take the complaint of Johnny seriously enough, and even ignored it for a long period of time. Despite being given several opportunities to do so, Atty. Millo did not file any written answer. He thereby forfeited his right and chance to reasonably explain the circumstances behind the charges against him. Had the complaint been untrue and unfair, it would have been quite easy for him to refute it quickly and seasonably. Indeed, a refutation was the requisite response from any worthy and blameless respondent lawyer. His belated and terse characterization of the charge by claiming that the charge had emanated from a mere "misunderstanding" was not sufficient. He did not thereby refute the charge against him, which omission indicated that the complaint had substance. It mattered little now that he had in the meantime returned the amount of P14,000.00 to the clients, and that the application for adoption had been eventually granted by the trial court. Such events, being not only post facto, but also inevitable from sheer passage of time, did not obliterate his liability based on the neglect and ineptitude he had inflicted on his clients. The severe lesson that he must now learn is that he could not ignore without consequences the liberal opportunity the Court and the IBP allowed him to justify his neglect and ineptitude in serving his clients' concerns. Towards him the Court now stays its hand of leniency, lest the Court be unfairly seen as too willing to forego the exaction of responsibility upon a lawyer as neglectful and inept as he had been towards his clients.
It even seems very likely that Atty. Millo purposely disregarded the opportunity to answer the charges granted to him out of a desire to delay the investigation of the complaint until both Johnny and Abella, being residents in Canada, would have already lost interest in prosecuting it, or, as happened here, would have already departed this world and be no longer able to rebut whatever refutations he would ultimately make, whether true or not. But the Court is not about to condone such selfish disregard. Let it be emphasized to him and to others similarly disposed that an attorney who is made a respondent in a disbarment proceeding should submit an explanation, and should meet the issue and overcome the evidence against him. The obvious reason for the requirement is that an attorney thus charged must thereby prove that he still maintained that degree of morality and integrity expected of him at all times.
Atty. Millo made his situation even worse by consistently absenting himself from the scheduled hearings the IBP had set for his benefit. His disregard of the IBP's orders requiring his attendance in the hearings was not only irresponsible, but also constituted utter disrespect for the Judiciary and his fellow lawyers. Such conduct was absolutely unbecoming of a lawyer, because lawyers are particularly called upon to obey Court orders and processes and are expected to stand foremost in complying with orders from the duly constituted authorities. Moreover, in Espiritu v. Ulep, the Court saw the respondent attorney's odious practice of repeatedly and apparently deliberately not appearing in the scheduled hearings as his means of wiggling out from the duty to explain his side. A similar treatment of Atty. Millo's disregard is justified. Indeed, he thereby manifested evasion, a bad trait that no worthy member of the Legal profession should nurture in himself. 30 (emphasis supplied)
In the case of Pesto, respondent was found guilty of violating Canon 18, Rule 18.03 of the Code of Professional Responsibility. He was suspended from the practice of law for a period of six (6) months and was sternly warned that any similar infraction will be dealt with more severely.
Generally, the non-filing of an answer and verified position paper is punished by a reprimand with a warning that a repetition of the same or similar act or offense will be dealt with more severely. 31 The Court has also previously imposed the penalty of fine ranging from P500.00 to P2,000.00 32 for a respondent's inability to file a comment or answer to administrative complaints. This being respondent's second time committing this infraction, the Court imposes upon him a fine of P2,000.00. This fine is without prejudice to the action of the IBP Board of Governors on the May 19, 2017 Memorandum of Asst. Dir. Buted on respondent's failure to file a verified answer.
WHEREFORE, the Court ADOPTS and APPROVES the Resolution of the Integrated Bar of the Philippines-Board of Governors dated August 27, 2016 as to the administrative complaint filed by Fernando M. Capati. The complaint against Atty. Marcelito M. Millo is hereby DISMISSED for insufficiency of evidence.
For his failure to file an answer and position paper, respondent Atty. Marcelito M. Millo is ordered to pay a FINE of P2,000.00 payable directly to the Court with a STERN WARNING that a repetition of the same or similar acts would be dealt with more severely. Such fine is without prejudice to any further action that the Integrated Bar of the Philippines may take on the May 19, 2017 Memorandum of Atty. Juan Orendain P. Buted.
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITAN
Division Clerk of Court
Footnotes
1.Rollo, pp. 2-9.
2.Id. at 5.
3.Id. at 6.
4.Id. at 114.
5.Id. at 115.
6.Id. at 118.
7.Id. at 120.
8.Id. at 125.
9.Id. at 126.
10.Id. at 128.
11.Id. at 129-130.
12.Id. at 140-141.
13.Id. at 136-139.
14.Id. at 7.
15.Supra note 12.
16.Id. at 137-138.
17.Id. at 142-146.
18.Id. at 145.
19.Supra note 15.
20. In the same Resolution, the IBP Board of Governors ordered Dir. Ramon S. Esguerra to issue a show cause order to respondent regarding the latter's non-filing of his verified answer. In a Memorandum dated May 19, 2017 submitted by Assistant Director for Bar Discipline Juan Orendain P. Buted to Director Ramon S. Esguerra, the former recommended that respondent be reprimanded for failing to file his verified answer.
21.Id. at 136-139.
22.Bunagan-Bansig v. Atty. Celera, 724 Phil. 141, 150 (2014).
23. A.C. No. 10758, December 5, 2017.
24.Gaviola v. Atty. Salcedo, 472 Phil. 624, 627-628 (2004), citing Martin v. Felix, 246 Phil. 113 (1988).
25.Jimenez v. Atty. Jimenez, 517 Phil. 68, 73 (2006).
26.Rollo, pp. 145-146.
27.Reontoy v. Atty. Ibadlit, 349 Phil. 1, 5 (1998).
28.Supra note 20.
29. 706 Phil. 286 (2013).
30.Id. at 293-294.
31.Dumanlag v. Intong, A.C. No. 8638, October 10, 2016.
32.Spouses Bautista, et al. v. Atty. Cefra, 702 Phil. 203, 205 (2013).