SECOND DIVISION
[A.C. No. 10941. January 25, 2016.][Formerly CBD Case No. 12-3551]
ROMEL H. RIVERA, complainant, vs. ATTY. MARK NOLAN C. CABALAN, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated 25 January 2016 which reads as follows:
"A.C. No. 10941: [Formerly CBD Case No. 12-3551] ROMEL H. RIVERA v. ATTY. MARK NOLAN C. CABALAN
Wanting to annul his marriage, complainant Romel H. Rivera (Rivera) sought the legal advice of respondent Atty. Mark Nolan C. Cabalan (Atty. Cabalan) from August to September 2011. 1 Atty. Cabalan asked for P30,000.00 as lawyer's fees for the period covering the time of his acceptance until the court renders a decision. 2
On October 7, 2011, Rivera gave P15,000.00 as partial payment, 3 for which Atty. Cabalan issued an acknowledgment receipt. 4
On the third week of December 2011, Rivera handed Atty. Cabalan the initial report of psychiatrist Dr. Gomez 5 to be used as evidence. 6 Atty. Cabalan asked for P3,000.00 as additional partial payment for his professional fees. 7 He did not issue an acknowledgment receipt for this. 8
Meanwhile, Rivera asked Atty. Cabalan when the petition could be filed before the Regional Trial Court of La Trinidad, Benguet. 9 Atty. Cabalan replied that his client would have to wait for his report on the case and that it would be better if Rivera furnished him with Dr. Gomez's final report. 10 Rivera told Atty. Cabalan that Dr. Gomez would give it on the first week of January 2012. 11
On January 3, 2012, Rivera informed Atty. Cabalan through text message that he already had the final report and would give this to Atty. Cabalan. 12 Atty. Cabalan replied that he was still in the province and that they could just meet the following day. 13 Atty. Cabalan promised to file the petition that week. 14
On the following day, January 4, 2012, Atty. Cabalan failed to meet with Rivera. Instead, he texted Rivera on January 7, 2012 asking the latter to submit Dr. Gomez's final report. At that time, Rivera was in Bulacan so he told Atty. Cabalan that he would give Dr. Gomez's report immediately upon his return. 15
On January 10, 2012, Rivera gave the final report to Atty. Cabalan. Failing to file the annulment case the week before, Atty. Cabalan again promised to prepare and file the petition within the week. 16
On January 18, 2012, Rivera texted Atty. Cabalan asking whether the petition had already been filed. Atty. Cabalan did not reply. Several text messages were also sent to Atty. Cabalan from January 29, 2012 to February 1, 2012, but no reply was received. Rivera tried calling Atty. Cabalan, but Atty. Cabalan's phone was always unattended or turned off. 17
Rivera sought Atty. Cabalan's address from some of the lawyers in Baguio. He was able to speak with Atty. Marlon Quadra, Atty. Cabalan's neighbor, who gave him Atty. Cabalan's address. Rivera went to visit his lawyer. 18
At Atty. Cabalan's house, Rivera asked him if the petition could already be filed. He also informed Atty. Cabalan that Dr. Gomez wanted to modify her report. 19
On March 2, 2012, Rivera received Dr. Gomez's revised report and immediately informed Atty. Cabalan about it. 20 He met with Atty. Cabalan the following day to give the revised report. 21 He asked Atty. Cabalan whether he was ready to file the case on March 7, 2012. 22
On March 7, 2012, Atty. Cabalan informed Rivera that he needed to talk to Dr. Gomez to verify something in her report. Rivera then arranged a meeting between Atty. Cabalan and Dr. Gomez in the afternoon of the same day. 23 Atty. Cabalan failed to attend as he was in another place. 24 He told Rivera that he would just go to Dr. Gomez's clinic at another time. 25
Rivera sent several text messages to Atty. Cabalan from March 14 to 28, 2012, but he received no reply. 26 After March 28, 2012, Rivera continued texting him, but to no avail. Rivera also tried calling Atty. Cabalan, but his cellular phone could not be reached. Rivera likewise went back to Atty. Cabalan's house several times, but was told that the lawyer was not around. 27 AHCETa
Rivera sent several text messages to Atty. Cabalan requesting him to just return the amount of P18,000.00 given him, but Atty. Cabalan did not reply. 28
On June 1, 2012, Rivera filed an administrative Complaint 29 against Atty. Cabalan before the Integrated Bar of the Philippines — Baguio-Benguet Chapter. 30 Rivera assailed Atty. Cabalan's failure to prepare and file the petition for declaration of nullity of marriage despite receipt of payment for professional fees. 31 He also assailed Atty. Cabalan's failure to return the amount of P18,000.00 despite demand. 32 Rivera charged Atty. Cabalan with violation of Canons 15 to 18 of the Code of Professional Responsibility:
CANON 15 — A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS.
CANON 16 — A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS POSSESSION.
CANON 17 — A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.
CANON 18 — A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.
On June 9, 2012, the Committee on Ethics of the Integrated Bar of the Philippines — Baguio-Benguet Chapter (Committee) formally notified Atty. Cabalan of the verified Affidavit Complaint filed against him and required him to comment. The Committee invited Atty. Cabalan to a conciliation conference on June 9, 2012. The Notice, which was sent to Atty. Cabalan's last known address, was received by Violy Bascos on June 26, 2012. 33 Rivera appeared in the preliminary conference, but Atty. Cabalan did not. Rivera agreed to reset the conciliation conference on August 8, 2012. 34
On August 8, 2012, the Committee's Report on Proceedings stated that "there is no return yet as to whether [Atty. Cabalan] has received the notice" 35 of the conciliation conference. The occupant at Atty. Cabalan's last known address said that he was not authorized to receive the notice for Atty. Cabalan. 36 Atty. Cabalan is a member of the Integrated Bar of the Philippines — Baguio-Benguet Chapter. 37 His last known address is No. 99 Leonard Wood Road, Baguio City. 38
Due to Atty. Cabalan's consecutive absences in the conciliation conference, the Committee forwarded 39 the case to the National Office of the Integrated Bar of the Philippines. 40
On September 4, 2012, Pura Angelica Y. Santiago, then Director for Bar Discipline of the Integrated Bar of the Philippines, ordered Atty. Cabalan to submit his verified answer, otherwise he would be declared in default and the case would be heard ex parte. 41 Atty. Cabalan failed to submit his answer. Neither was he able to attend the mandatory conference set on different dates. 42 He also failed to submit 43 his verified position paper despite the Commission on Bar Discipline's Order. 44
In light of Atty. Cabalan's neglect of his client's case, Integrated Bar of the Philippines Commissioner Eldrid C. Antiquiera (Commissioner Antiquiera) found him liable for violating Rule 18.03 45 of the Code of Professional Responsibility. Commissioner Antiquiera considered Atty. Cabalan's disregard of the proceedings at the Integrated Bar of the Philippines an aggravating circumstance and recommended that he be suspended for one (1) year. 46 The Board of Governors of the Integrated Bar of the Philippines adopted and approved these findings in a Notice of Resolution dated October 10, 2014. 47
We have previously held that a lawyer is "duty[-]bound to serve his client with competence, and to attend to his client's cause with diligence, care and devotion." 48 This is because a lawyer "owes fidelity to [his client's] cause and must always be mindful of the trust and confidence reposed on him." 49
Here, respondent did not handle complainant's annulment case with the degree of care, diligence, and competence required of a lawyer. 50 Respondent's evasion of duty is manifest. Despite the lapse of around nine (9) months, 51 the partial payment of his legal fees, and the repeated demands for information or performance made upon him, respondent failed to act on his client's case.
Respondent's conduct evinces "his appalling indifference to his clients' cause and a brazen disregard of his duties as a lawyer." 52 He not only failed to act on the case; he also kept the money complainant paid him. 53 Respondent likewise failed to keep complainant abreast as to the developments pertinent to the case. 54 Thus:
The failure to exercise that degree of vigilance and attention expected of an Officer of the Court makes such lawyer unworthy of the trust reposed in him by his clients and makes him answerable not just to his client but also to the legal profession, the courts, and the society. When a lawyer violates his duties to his client, the courts, the legal profession, and the public, he engages in unethical and unprofessional conduct for which he should be held accountable. 55
Respondent's actions are in clear violation of the following provisions on the Code of Professional Responsibility:
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 therewith shall render him liable.
Rule 18.04 — A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client's request for information.
Respondent could have easily refuted the allegations had he submitted an answer, shown up at the mandatory conference, or submitted his position paper before the Integrated Bar of the Philippines. Instead, he chose to disregard the orders of the Integrated Bar of the Philippines and waive his right to be heard. ScHADI
Respondent may not claim that he had no opportunity to answer. Violy Bascos, the occupant at respondent's last known address, would not have signed and received the formal notice of the Affidavit Complaint had there been no Atty. Cabalan residing in that place. The Integrated Bar of the Philippines found that respondent "evaded seeing the complainant in order to explain why he failed to file the petition in court." 56
Respondent's "unjustified refusal to obey the orders of the IBP directing [him] to file an answer to the complaint . . . and to appear at the scheduled mandatory conference" 57 aggravates his misconduct. A lawyer must give due respect to "judicial officers and other duly constituted authorities, including the IBP." 58 Failure to do so is a violation of Canon 11 of the Code of Professional Responsibility:
CANON 11 — A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS.
In addition, when, without reason, he neglected to file the case as was agreed upon, respondent became obliged to return the funds given him after complainant demanded for these. 59 The Code of Professional Responsibility states:
CANON 16 — A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS POSSESSION.
Rule 16.01 — A lawyer shall account for all money or property collected or received for or from the client.
xxx xxx xxx
Rule 16.03 — A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court.
Generally, a lawyer must not withhold the client's funds, save for one's retaining lien. 60 As the case at hand does not involve a retaining lien, respondent must, therefore, return the amount of P18,000.00, which complainant paid for the case to be filed. Respondent's receipt of this amount is duly supported by an authenticated 61 copy of the Acknowledgment Receipt. DACcIH
In Del Mundo v. Capistrano, 62 this court meted the penalty of one (1) year suspension for the lawyer who neglected and failed to file his client's case. He was also ordered to return the lawyer's fees he received from his client, which amounted to P73,500.00. In Baldado v. Mejica, 63 the lawyer was suspended for three (3) months for failing to respect the rules and procedures of the Integrated Bar of the Philippines. These two infractions would have totalled an errant lawyer's suspension to one (1) year and three (3) months. However, in view of the lower amount of legal fees retained by respondent, we find that the Integrated Bar of the Philippines' recommended penalty of one (1) year suspension is reasonable under the circumstances.
After considering the allegations, issues, and arguments adduced in the Complaint filed by Romel H. Rivera, this court ACCEPTS and APPROVES with MODIFICATIONS the findings of fact and recommendations of the Board of Governors in the Notice of Resolution No. XXI-2014-743 dated October 10, 2014. 64
WHEREFORE, having clearly violated Canon 11, Canon 18, Rules 18.03 and 18.04, and Canon 16, Rules 16.01 and 16.03 of the Code of Professional Responsibility, respondent Atty. Mark Nolan C. Cabalan is SUSPENDED from the practice of law for one (1) year, with a stern warning that a repetition of the same or similar acts shall be dealt with more severely.
Respondent is also ORDERED to return to complainant Romel H. Rivera the full amount of P18,000.00 within 30 days from notice of this Resolution and is DIRECTED to submit to this court proof of such payment.
SO ORDERED."
Very truly yours,
MA. LOURDES C. PERFECTODivision Clerk of Court
By:
(SGD.) TERESITA AQUINO TUAZONDeputy Division Clerk of Court
Footnotes
1. Rollo, p. 6, Affidavit Complaint.
2. Id.
3. Id.
4. Id. at 12, Acknowledgment Receipt.
5. Dr. Gomez's full name was not provided in the records.
6. Rollo, p. 6, Affidavit Complaint.
7. Id.
8. Id.
9. Id. at 7.
10. Id.
11. Id.
12. Id.
13. Id.
14. Id.
15. Id.
16. Id.
17. Id.
18. Id.
19. Id.
20. Id.
21. Id.
22. Id.
23. Id.
24. Id. at 8.
25. Id.
26. Id.
27. Id.
28. Id.
29. Id. at 6-9.
30. Id. at 2.
31. Id. at 6.
32. Id. at 8.
33. Id. at 4, Committee on Ethics' Notice to Atty. Cabalan.
34. Id. at 3, Committee on Ethics' Report on Proceedings dated June 9, 2012.
35. Id.
36. Id.
37. See the IBP website <http://www.ibp.ph/ibp%20website/html/lawlistflawlist_c.html> (visited January 5, 2016):
Name: ATTY. CABALAN, MARK-NOLAN CHOMENWEY
Chapter: BAGUIO-BENGUET
Roll No.: 46637
Year Admitted: 2002
38. Rollo, p. 2, Committee on Ethics' Formal Endorsement to the IBP National Office.
39. Id. at 3, Committee on Ethics' Report on Proceedings dated August 8, 2012.
40. Id.
41. Id. at 13, Commission on Bar Discipline Order dated September 4, 2012.
42. Id. at 14, Notice of Mandatory Conference. Commissioner Eldrid C. Antiquiera set the mandatory conference first on October 24, 2013 (Id.), and later reset it on November 28, 2013 (Id. at 16, Order).
43. Id. at 21.
44. Id. at 17.
45. Code of Professional Responsibility, Canon 18, rule 18.03 provides:
Rule 18.03 — A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable.
46. Rollo, pp. 21-22, Report and Recommendation.
47. Id. at 20.
48. Lad vda. de Dominguez v. Agleron, Sr., A.C. No. 5359, March 10, 2014, 718 SCRA 219, 222 [Per J. Mendoza, Third Division].
49. Id.
50. Lad vda. de Dominguez v. Agleron, Sr., A.C. No. 5359, March 10, 2014, 718 SCRA 219 [Per J. Mendoza, Third Division].
51. Counted from September 2011, when respondent's services were engaged, until June 1, 2012, when the administrative case was brought before the IBP.
52. Fernandez v. Cabrera II, 463 Phil. 352, 357 (2003) [Per J. Quisumbing, Second Division].
53. Id.
54. See Code of Professional Responsibility, Canon 18, Rule 18.04.
55. Fernandez v. Cabrera II, 463 Phil. 352, 357 (2003) [Per J. Quisumbing, Second Division].
56. Rollo, p. 22, Commission on Bar Discipline's Report and Recommendation. The Report and Recommendation was penned by Investigating Commissioner Eldrid C. Antiquiera.
57. Heenan v. Espejo, A.C. NO. 10050, December 3, 2013, 711 SCRA 290, 299 [Per J. Velasco, Jr., En Banc].
58. Almendarez, Jr. v. Langit, 528 Phil. 814, 821 (2006) [Per J. Carpio, En Banc].
59. Jinon v. Jiz, A.C. No. 9615, March 5, 2013, 692 SCRA 348 [Per J. Perlas-Bernabe, En Banc].
60. Ribaya v. Lawsin, A.C. No. 7965, November 13, 2013, 709 SCRA 287 [Per J. Perlas-Bernabe, Second Division].
61. Immanuel B. Awisan, Public Attorney II of the Public Attorney's Office, authenticated the Acknowledgement Receipt.
62. Del Mundo v. Capistrano, 685 Phil. 687 (2012) [Per J. Perlas-Bernabe, Third Division].
63. Baldado v. Mejica, 706 Phil. 1 (2013) [Per J. Peralta, Third Division].
64. Rollo, p. 20.