Ortiz v. Tampus

FIRST DIVISION

[A.C. No. 12816. July 6, 2021.][Formerly CBD Case No. 13-3797]

CECILIA AGNES M. ORTIZ, complainant, vs. ATTY. DULCESIMO P. TAMPUS, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution datedJuly 6, 2021which reads as follows:

"A.C. No. 12816 [Formerly CBD Case No. 13-3797] — (Cecilia Agnes M. Ortiz, Complainant, v. Atty. Dulcesimo P. Tampus, Respondent.) — The instant administrative case stemmed from a complaint 1 filed by complainant Cecilia Agnes M. Ortiz (complainant) against respondent Atty. Dulcesimo P. Tampus (respondent) for violation of the rule on conflict of interest under the Code of Professional Responsibility, by reason of his appearance on a civil case against complainant, a former client.

Antecedents

Complainant alleged that she was married to a Japanese national, Atsushi Endo (Endo) n and they previously engaged the legal services of respondent as counsel in the following cases:

a. Civil Case No. 5092-L entitled "Atsushi Endo vs. Cebu Marine Beach" for Recovery of Sum of Money before the RTC, Lapu-Lapu City, 1999;

b. I.S. No. 00-2548 entitled "Cutamora vs. Ortiz and Endo" for Falsification before the Cebu City Prosecutors Office, 2000;

c. I.S. No. 00-557-A entitled "Cutamora vs. Ortiz" for Bigamy before the Cebu City Prosecution Office, 2000;

d. Special Power of Attorney signed by complainant in favor of respondent, 20 July 2001;

e. Civil Case No. CEB-18930 entitled "Ortiz vs. Cutamora" for Declaration of Nullity of Marriage before RTC Branch 22, Cebu City, 2005.

However, in Civil Case No. 6281-L for damages filed by Atsushi Endo against Allied Banking Corporation and Elmer D. Ochea (Ochea), et al., ("Ochea Case") before RTC Branch 27, Lapu-Lapu City, respondent appeared as counsel for defendant Ochea as per his Entry of Appearance and Manifestation dated 05 February 2009. 2 And on 01 March 2013, respondent appeared before the trial court relative to the Ochea Case.

According to complainant, the arguments used by respondent in the said case were information acquired by him during his engagement as their former counsel. As proof, complainant presented the transcript of record showing the following manifestation made by respondent, to wit:

"Atty. Tampus continues —

Sometime in 2009, Mr. Endo died and he was substituted by Agnes Ortiz. Defendant Ochea filed a supplemental answer pursuant to Section 6, Rule 10 when this case was pending. Mr. Endo died in Lapu-Lapu City, survived by two minor children from a relation with Agnes Ortiz aged 14 and 10, respectively. These children are illegitimate, born out of wedlock because of bigamous marriage. Their mother was previously married, which still subsists, when she contracted another marriage to Endo in 2001. x x x.3 [Emphasis supplied.]

In his Verified Answer, 4 respondent denied the charge. He claimed that he entered his appearance in the Ochea Case years after the same was filed in court. Moreover, his appearance therein was more on paper because it was a certain Atty. Rodrigo Peña (Atty. Peña) who prepared all the necessary pleadings in the said case.

According to respondent, his legal services to complainant ended years before he entered his appearance in 2009 as counsel for Ochea. He also asserted that Endo, his other client, has long since died. Moreover, upon learning that Atty. Peña filed a motion to dismiss, he immediately filed a withdrawal and recusation as collaborating counsel before the said motion was heard.

Ruling of the Integrated Bar of the Philippines

In his Report and Recommendation 5 dated 05 May 2014, the Investigating Commissioner found petitioner liable for Violation of Rule 15.03, Chapter III and Canon 21, Chapter IV of the Code of Professional Responsibility. The penalty of suspension from the practice of law for a period of six (6) months from notice was recommended. 6 In a Resolution 7 dated 19 April 2015, the Board of Governors of the Integrated Bar of the Philippines (IBP) adopted and approved Investigating Commissioner's report and recommendation.

Issue

The sole issue for determination is whether or not respondent should be held liable for violations of the Code of Professional Responsibility.

Ruling of the Court

The Court agrees with the findings and recommendations of the IBP. The attendant facts of the case show substantial evidence to support the findings of the IBP with regard to respondent's violation of Canon 15, Rule 15.03, 8 Chapter III and Canon 21, 9 Chapter IV of the Code of Professional Responsibility.

In Mabini Colleges, Inc. v. Pajarillo, 10 the Court explained the tests to determine the existence of conflict of interest, thus:

There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties. The test is "whether or not in behalf of one client, it is the lawyer's duty to fight for an issue or claim, but it is his duty to oppose it for the other client. In brief, if he argues for one client, this argument will be opposed by him when he argues for the other client." This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used. Also, there is conflict of interest if the acceptance of the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation to use against his first client any knowledge acquired through their connection. Another test of the inconsistency of interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof. [Emphasis supplied.]

As found by the IBP, there was conflict of interest under the foregoing circumstances:

First, respondent was the former counsel of complainant and Endo to whom the latter revealed information relative to the cases he handled for them. These information, perforce, were acquired from complainant on the basis of trust and confidence that characterize their prior attorney-client relationship.

Second, respondent became counsel in another case against complainant. Such engagement called for use of confidential information acquired by him through his previous engagement as counsel, in particular, as regards the bigamy and declaration of nullity cases he handled for complainant and Endo, as shown in the transcript of records. The details of the information he manifested before, i.e., that complainant's children were borne out of wedlock due to a bigamous marriage, and that her previous marriage was still subsisting when she married Endo, are not only incendiary but likewise confidential.

Third, respondent had full knowledge that in accepting a new client would entail the risk of representing conflicting interests. To be sure, the contents of the manifestation he filed before the trial court against complainant are matters he could not have obtained where it not for his previous engagement as her counsel. 11

While respondent maintains that he entered his appearance in the Ochea Case (05 February 2009) after Endo's death (2007), it does not miss the attention of the Court that respondent was even notified of the substitution of complainant as plaintiff in lieu of her deceased husband, Endo. More telling is respondent's eventual recusal as collaborating counsel in the Ochea Case, in an apparent but belated bid to avoid conflicting interests, 12 long after he had argued vigorously on behalf of Ochea during the hearing on 01 March 2013. However, the confidential matters he acquired during the time of his engagement as complainant's legal counsel were already disclosed in the Ochea Case through the manifestation he filed.

A lawyer's duty to protect the interest and confidence of his client, together with the corollary obligation not to represent interest in conflict or inconsistent with the same is perpetual as extends even beyond the end of his professional engagement with said client. It even survives the death of the client. In Heirs of Falame v. Baguio,13 the Court explained:

The termination of attorney-client relation provides no justification for a lawyer to represent an interest adverse to or in conflict with that of the former client. The client's confidence once reposed should not be divested by mere expiration of processional employment. Even after the severance of the relation, a lawyer should not do anything which will injuriously affect his former client in any natter n in which he previously represented him nor should he disclose or use any of the client's confidences acquired in the previous relation.

In the case of Senior Marketing Corp. v. Bolinas,14 where the respondent lawyer similarly violated Rules 15.01 and 15.03 of Canon 15 and Canon 21 of the Code of Professional Responsibility, respondent lawyer therein was suspended for a period of six (6) months. We thus find the recommended penalty of six (6) months suspension from the practice of law proper.

WHEREFORE, the Letter dated 17 February 2020 of the Integrated Bar of the Philippines Commission on Bar Discipline and the Notice of Resolution dated 19 April 2015 of the Board of Governors of the Integrated Bar of the Philippines are NOTED. For violations of Rule 15.03, and Canon 21 of the Code of Professional Responsibility, respondent ATTY. DULCESIMO P. TAMPUS is SUSPENDED from the practice of law for a period of six (6) months. He is likewise WARNED that a repetition of the same or similar act shall be dealt with more severely.

Atty. Dulcesimo P. Tampus, upon receipt of this Resolution, shall immediately serve his suspension and formally manifest to this Court that his suspension has started, copy furnish all courts and quasi-judicial bodies where he has entered his appearance, within five (5) days upon receipt of this Resolution. He shall also serve copies of his manifestation on all adverse parties in all the cases he entered his formal appearance.

Let a copy of this Resolution be furnished to the Office of the Bar Confidant to be attached to Atty. Dulcesimo P. Tampus' personal record. Copies of this Resolution should also be served on the Integrated Bar of the Philippines for its proper disposition, and the Office of the Court Administrator for circulation to all courts in the country.

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. 02-03.

2.Id. at 16.

3.Id. at 63.

4.Id. at 23-27.

5.Id. at 159-163; signed by Commissioner Joel L. Bodegon.

6.Id. at 163.

7.Id. at 158.

8. 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.

9. Canon 21. A Lawyer shall preserve the confidence and secrets of his client even after the attorney-client relationship is terminated.

10. 764 Phil. 352 (2015), A.C. No. 10687, 22 July 2015 [Per J. Villarama, Jr.], citing Hornilla v. Salunat, 453 Phil. 108 (2003), A.C. No. 5804 (Resolution), 01 July 2003 [Per J. Ynares-Santiago].

11.Rollo, p. 162.

12.Id. at 48-49.

13. 571 Phil. 428 (2008), A.C. No. 6876 (Resolution), 07 March 2008 [Per J. Tinga].

14. A.C. No. 6740 (Notice), 26 February 2014.

n Note from the Publisher: Written as "Atushi Endo (Endo)" in the official document.

n Note from the Publisher: Copied verbatim from the official document.