SECOND DIVISION
[A.C. No. 11413. July 27, 2016.]
[Formerly CBD Case No. 15-4464]
ATTY. MARIANO R. PEFIANCO, complainant, vs. ATTY. GINA C. GARCIA, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated 27 July 2016 which reads as follows:
"A.C. No. 11413 [Formerly CBD Case No. 15-4464] — (Atty. Mariano R. Pefianco v. Atty. Gina C. Garcia)
Before the Court is a Letter-Complaint 1 filed by Atty. Mariano R. Pefiano (Atty. Pefianco) against Atty. Gina C. Garcia (Atty. Garcia) before the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP-CBD) for violation of Rule 8.02 2 of the Code of Professional Responsibility.
Atty. Pefianco was the counsel of Nelly Bautista (Bautista), in Criminal Case No. 6875, entitled People of the Philippines v. Min Sung Cho while Atty. Garcia represented the accused, Min Sung Cho.
In the November 9, 2011 hearing on the civil aspect of the said case, Atty. Garcia manifested before the trial court that she had submitted an Affidavit, 3 dated August 9, 2011, executed by Bautista stating, among others, that as early as May 4, 2005, she filed her Affidavit of Desistance relative to Criminal Case No. 6875 and the prosecutor subsequently filed a motion to withdraw the case based thereon, and that in 2005, Bautista already terminated the services of Atty. Pefianco in the said case. In the same hearing, Atty. Garcia presented Bautista to confirm the fact that she was no longer interested in pursuing the case against Min Sung Cho and to affirm the documents she had executed in relation to her desistance.
In his letter-complaint, Atty. Pefianco alleged that Atty. Garcia interfered with an existing lawyer-client relationship which he had with Bautista when she submitted the latter's affidavit and presented her in court during the November 9, 2011 hearing of the case. In November 2014, Atty. Garcia filed a Comment 4 before the Court of Appeals in CA-G.R. SP No. 07353, in response to the Compliance/Manifestation of Atty. Pefianco that the affidavit of desistance executed by Bautista was fictitious. In said comment, Atty. Garcia denied the allegation and submitted the original copy of the August 9, 2011 affidavit, copy of the November 9, 2011 Order, Minutes of the hearing conducted on November 9, 2011, and the transcript of the stenographic notes of Bautista's testimony taken on November 9, 2011.
In her answer, 5 Atty. Garcia denied that she had encroached, directly or indirectly, in the professional employment of another lawyer; induced Bautista to disengage the services of Atty. Pefianco and retain her with a promise of a better service, good result or on reduced fees; that her actions were made in the discharge of her professional obligation to her client, Min Sung Cho, and to inform the court of the status of the case filed by Bautista against Min Sung Cho.
In its Report and Recommendation, 6 dated August 14, 2015, the IBP-CBD recommended that the complaint for disbarment against Atty. Garcia be dismissed for lack of merit. It pointed that Atty. Garcia did not violate the CPR when she presented Bautista in court and submitted her affidavit as the latter already terminated the legal services of Atty. Pefianco and the lawyer-client relationship had been severed for more than 5 years already. The IBP-CBD then directed Atty. Pefianco to show cause why he should not be held professionally responsible for his failure to file the mandatory pre-trial brief, to appear before the mandatory conference and file the verified position paper. aDSIHc
On January 21, 2016, the IBP Board of Governors passed a Resolution adopting the recommendation of the IBP-CBD, as follows:
RESOLVED to ADOPT the findings of facts and recommended DISMISSAL of the case by the investigating Commissioner due to insufficiency of evidence.
Hence, the case was elevated.
The Court's Ruling
The Court adopts the findings and recommendation of the IBP.
In administrative proceedings, the burden of proof that respondent committed the act complained of rests on the complainant and in order for the court to exercise its disciplinary powers, the case against the respondent must be established by clear, convincing, and satisfactory proof. 7
The Court agrees with the IBP-CBD conclusion that Atty. Garcia could not be held administratively liable. Apart from the allegations he made in the letter-complaint, Atty. Pefianco failed to proffer any proof tending to show that Atty. Garcia encroached upon his professional employment with Bautista. There was no iota of evidence to show that Atty. Garcia had induced Bautista to disengage his professional services or convince her to engage her legal services. Atty. Garcia was not representing Bautista when she submitted to the court her affidavit and presented her as a witness, but she was merely protecting the interest of her client by informing the court of the desistance of the private complainant and arguing that the criminal case against her client be dismissed.
WHEREFORE, the Court resolves to ADOPT and APPROVE the findings of fact, conclusions of law and recommendations of the Investigating Commissioner in its Report and Recommendation, dated August 14, 2015, which the Board of Governors of the Integrated Bar of the Philippines likewise adopted and approved.
The complaint is DISMISSED for lack of merit.
Accordingly, the case is considered CLOSED and TERMINATED.
SO ORDERED."
Very truly yours,
MA. LOURDES C. PERFECTODivision Clerk of Court
By:
(SGD.) TERESITA AQUINO TUAZONDeputy Division Clerk of Court
Footnotes
1. Rollo, pp. 2-4.
2. 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.
3. Rollo, p. 8.
4. Id. at 5-6.
5. Id. at 26-33.
6. Id. at 193-197.
7. Noriega v. Sison, 210 Phil. 236 (1983).