THIRD DIVISION
[A.C. No. 9433. January 13, 2016.]
JOCELYN SORENSEN, petitioner, vs. PROS. REYNALDO ACOSTA, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution dated January 13, 2016, which reads as follows:
"A.C. No. 9433 (Jocelyn Sorensen v. Pros. Reynaldo Acosta). — The Court resolves to NOTE:
(1) the Notice of Resolution No. XXI-2014-821 dated October 11, 2014 of the Integrated Bar of the Philippines (IBP) Board of Governors adopting and approving the report and recommendation of the investigating commissioner, and dismissing the case for lack of merit; and
(2) the letter dated September 18, 2015 of the IBP transmitting the documents pertaining to this case with information that no motion for reconsideration was filed.
For resolution is a complaint for disbarment filed by Jocelyn Sorensen against Atty. Reynaldo Acosta, a retired member of the National Prosecution Service. The complaint was originally filed with the Integrated Bar of the Philippines (IBP) — Commission on Bar Discipline on April 19, 2012, but was subsequently forwarded to the Office of the Bar Confidant, Supreme Court, pursuant to Bar Matter No. 1645 dated September 5, 2006. In compliance with the Supreme Court's Resolution dated August 15, 2012, respondent, through counsel, filed his undated Comment. In a Resolution dated February 11, 2013, the Supreme Court referred the complaint to the IBP Commission on Bar Discipline for investigation, report and recommendation or resolution.
The Report and Recommendation dated March 27, 2014 of Investigating Commissioner Rommel V. Cuison, Commission on Bar Discipline, IBP follows:
The Complaint charges respondent of violating Rule 16.04 of [the] Code of Professional Responsibility (CPR), which provides:
A lawyer shall not borrow money from his client unless the client's interests are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client.
as well as Canon 17 of the CPR, which states that "a lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him."
According to complainant, respondent obtained several loans from her amounting to Php60,000.00. The first loan, in the amount of Php15,000.00, was allegedly extended to respondent sometime in October 1992. Complainant allegedly handed the said sum to respondent at the Palace of Justice, Cebu City, in the presence of one Gene Kasayan, who was then working with the City Prosecution Office of Cebu. A few days later, respondent again allegedly loaned another Php15,000.00 from complainant, thus bringing his total obligation to Php30,000.00. Despite repeated verbal demands from complainant, respondent purportedly failed to pay his debt.
Sometime thereafter, respondent allegedly requested complainant to purchase a personal computer for him which he proposed to pay in instalments. Complainant agreed and delivered the personal computer worth Php30,000.00 at respondent's office, in the presence of several other persons who worked there. Again, respondent allegedly failed to pay complainant for the personal computer despite demand.
Finally, complainant alleges that she engaged respondent's services for the purpose of filing civil and/or criminal actions against her defaulting debtors. To this end, complainant, on July 11, 2003, delivered 10 folders to respondent. She also handed to him the amount of Php30,000.00, which was to answer for the filing fees for the cases and related expenses. However, complainant claims that respondent failed to file a single complaint despite complainant's repeated demands. cEaSHC
In his Comment, respondent denies having obtained any loan from complainant or having requested her to purchase a personal computer, to be paid for by him in instalments. He also denied having been engaged by complainant for the purpose of taking legal action against complainant's defaulting debtors. According to respondent, complainant's retained counsel was one Atty. Bienvenido Baring, Jr., with whom he shared the same office space. Respondent, however, admitted that he appeared as counsel for complainant in a few hearings, at Atty. Baring's request whenever the latter was indisposed. This notwithstanding, respondent maintains that complainant did not engage him for the purpose of filing collection suits against complainant's defaulting debtors.
This Office finds for respondent and, accordingly, dismisses this complaint.
It is basic in law that he who alleges must prove, and in administrative cases such as the instant complaint, the quantum of proof required is substantial evidence. Hence, the burden of proof lies with complainant, who must establish by way of substantial evidence that: (a) respondent obtained loans from complainant, whom he failed to pay for; and (b) respondent was engaged as complainant's counsel for the purpose of filing collection and other suits against certain of complainant's debtors.
This Office notes that complainant's evidence consists merely of her own affidavit and the affidavit of her helper, Julito Clavero, nothing more. To the mind of the undersigned Investigating Commissioner, these affidavits are self-serving and, hence, have little or no probative value.
For one, complainant admits that she is engaged in the business of lending and that her clients were mostly employees working at the Provincial Capitol in Cebu City. If indeed it were true that complainant extended several loans to respondent in the regular pursuit of the business, then she surely would have required respondent to execute a promissory note or other document that will establish the existence of the loan. According to complainant, she never required respondent to execute any such document since she knew lawyers to be gentlemen and trustworthy. This reasoning simply does not inspire belief, especially since there is no showing of any special relationship between complainant and respondent apart from the fact that the latter was allegedly one of complainant's borrowers. The fact that complainant was unable to produce a single document, such as a promissory note, loan agreement, acknowledgment receipt or similar document simply renders her affidavit completely self-serving. Indeed, this [complaint] cannot prosper on the basis merely of complainant's bare allegations. IAETDc
Even if complainant's bare allegations were to be taken at face value, still, these should be rejected for simply being incredible. It should be noted that complainant extended loans to respondent on three different occasions. This Office cannot fathom how complainant would continue loaning money to respondent despite the fact that he allegedly defaulted on all his past obligations to complainant. Being in the business of lending, complainant surely would not risk increasing her financial exposure by extending a loan to someone who has a proven dismal credit history.
In like manner, she would not have entrusted the handling of her cases to someone who had previously violated her confidence. At the very least, complainant should have exercised more caution by documenting the lawyer-client relations, the turnover of records or the deposit made for filing fees and other expenses. The fact that complainant has not submitted any document of this nature casts serious doubts on her claims. Indeed, it is well-settled that testimony should not only come from the mouth of a credible witness, the testimony itself should be credible, thus:
The foregoing circumstances indeed tainted Flores' credibility and reliability, his story being contrary to ordinary human experience. "Settled is the rule that testimonial evidence to be believed must not only proceed from the mouth of a credible witness but must foremost be credible in itself. Hence, the test to determine the value or credibility of the testimony of a witness is whether the same is in conformity with common knowledge and is consistent with the experience of mankind."
Unfortunately for complainant, her narration simply does not inspire relief. On the contrary, respondent was able to point out glaring inconsistencies, foremost of which was the fact that respondent was not yet working at the Provincial Capitol in Cebu City in 1992, which assertion was corroborated by the Certification dated November 6, 2012, as well as respondent's personnel record. In stark contrast with complainant's bare claims, respondent was able to adduce documentary evidence in support of his defenses. Hence, the substantial evidence on record favors respondent.
Neither may the Affidavit of Julito Clavero be given any evidentiary value. For one, a reading of Mr. Clavero's Affidavit shows that he has no personal knowledge regarding the cash loans allegedly extended by complainant to respondent. Further, this Office cannot ignore the fact that Mr. Clavero is complainant's employee, which renders his testimony suspect. The ruling of the Supreme Court in Uy v. Centro Ceramica Corporation finds relevance, thus:
As to the affidavits submitted by the respondents, these are at best self-serving having been executed by employees beholden to their employer and which evidence by themselves did not refute petitioner's main cause of action — the fact of his summary dismissal on February 19, 2002.
It should be noted that complainant alleged that several other persons were present when the alleged transactions took place. Yet, she failed to submit a single affidavit from these supposed witnesses. Instead, complainant relied on her own affidavit, as well as that of her helper, Julito Clavero, to prove her claims. As discussed previously, these are patently self-serving and, hence, have no probative value whatsoever. As such, this complaint has no leg to stand on and perforce should he dismissed.
WHEREFORE, premises considered, let this disbarment complaint against Atty. Reynaldo Acosta be dismissed as it is hereby dismissed. 1
In Resolution No. XXI-2014-821, the Board of Governors of the IBP, adopted and approved the Report and Recommendation of the Investigating Commissioner for the dismissal of the case against the respondent.
Finding the recommendation of the IBP to be fully supported by the evidence on record and applicable laws, the Court RESOLVES to DISMISS the case against Atty. Reynaldo Acosta. The case is deemed CLOSED and TERMINATED.
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1. Rollo, pp. 145-149.