Republic of the Philippines
SUPREME COURT
EN BANC
A.C. No. 6656 December 13, 2005
(formerly CBD-98-591)
BOBIE ROSE V. FRIAS, Complainant,
vs.
ATTY. CARMENCITA BAUTISTA LOZADA, Respondent.
R E S O L U T I O N
CORONA, J.:
In this disbarment case, we are faced with conflicting versions of the incidents surrounding the filing of the verified complaint1 for deception and malpractice allegedly committed by Atty. Carmencita Bautista Lozada.
For her part, complainant Bobie Rose Frias alleged that respondent became her retained counsel and legal adviser in the early part of 1990. She entrusted to respondent documents and titles of properties in November of that year. Sometime in December 1990, respondent persuaded complainant to sell her house located at 589 Batangas East, Ayala Alabang Village, Muntinlupa City. Respondent allegedly acted as broker as she was in need of money.
On December 7, 1990 respondent hastily arranged a meeting with her and a prospective buyer, Dra. Flora San Diego, in Valenzuela, Manila. She was allegedly made to sign a Memorandum of Agreement (MOA)2 without her having read it because "they had to reach the bank before it closed at 3:00 p.m."
When they arrived at the Security Bank branch in Valenzuela, San Diego handed respondent ₱2M in cash and ₱1M in check, instead of ₱3M in cash as the down payment3 indicated in the MOA.
Out of the ₱2M in cash, respondent took ₱1M as her commission without complainant’s consent. When complainant protested, respondent promised to sign a promissory note later. The ₱1M check was later on dishonored by the bank because it was a stale check.
San Diego eventually backed out from the sale. However, she converted the aborted sale into a mortgage loan at 36% p.a. interest, as provided for in the MOA.
Since the transaction between her and San Diego did not materialize, complainant allegedly tried to recover from respondent the title4 to the property and other documents.5 Respondent, however, started avoiding her. Complainant recovered the documents placed inside an envelope only on May 6, 1991. On the same day, however, the envelope was allegedly stolen from her Pajero. She reported the incident to the police.6 She also informed respondent about the incident, and the latter prepared an affidavit of loss.7 Complainant later offered this affidavit as evidence in a petition for issuance of a duplicate copy of the title she filed in the RTC of Makati, Branch 142.8
A perjury case9 was then filed by San Diego against complainant on the ground that the title to the property was never really lost (as alleged by complainant in the affidavit of loss) but was with San Diego all along. San Diego maintained that complainant handed it to her on the day they signed the MOA. Complainant denied these allegations. She instead claimed that the perjury case was filed by San Diego, with respondent as counsel, to coerce her (complainant) to assign the property to San Diego and to abandon her claim of ₱1M from respondent.
San Diego also filed a case10 for the return of the ₱3M she paid complainant, at 36% p.a. interest. Complainant claimed that her failure to return the money to San Diego was by reason of respondent’s refusal to give back the ₱1M she took as commission. Complainant was thus constrained to file a civil case against respondent. Despite the favorable decision11 of the trial court, which was affirmed by the Court of Appeals12 , respondent refused to return the money.
In her answer13 to the disbarment complaint, respondent claimed that, although complainant was engaged in the buy-build-and-sell of real property, she represented her only in labor cases relative to the latter’s overseas recruitment business. Respondent denied that she persuaded complainant to sell the property in Ayala Alabang. Rather, it was complainant who offered to sell or mortgage the property to respondent. Since respondent did not have enough money, complainant requested her to sell or mortgage the property and offered her a loan, commission and attorney’s fees on the basis of the selling price.
According to respondent, complainant confided that on October 29, 1990 she offered the Alabang property to a certain Nelia Sta. Cruz. Complainant received ₱400,000 as earnest money in this transaction on the condition that she would return the said amount to Sta. Cruz in two weeks in case the latter decided not to proceed with the sale.14 The said amount would in turn be used to buy another property.
Respondent also claimed that on December 4, 1990, she introduced complainant to another client, Dra. San Diego, as a prospective buyer. They visited the Alabang property to check on the house. It was there that complainant offered the house to San Diego for either sale or mortgage. They then discussed the terms and conditions to be contained in the MOA.15 The agreement was thereafter signed in respondent’s office in Valenzuela, Metro Manila on December 7, 1990, duly notarized by Atty. Manuel Aguinaldo.16 They then proceeded to Prudential Bank (not Security Bank as alleged in the complaint) to withdraw ₱2M in cash. Upon receipt of ₱2M in cash and ₱1M check down payment, complainant gave San Diego the TCT.
Complainant then handed to respondent ₱900,000 as commission and loan, duly receipted in a promissory note.17 Complainant further entrusted ₱100,000 to respondent to be given to Nelia Sta. Cruz as partial reimbursement of the ₱400,000 earnest money.18
Respondent maintained that when San Diego backed out from the transaction, the latter demanded the return of only ₱2M, not ₱3M, as clearly stated in San Diego’s letter19 to the complainant dated March 20, 1991.
Respondent denied that complainant previously demanded the return of the ₱1M until the civil case against her was instituted. She expressed her willingness to pay the ₱900,000 plus the agreed interest, but not the ₱1M plus interest baselessly demanded from her by complainant. In an attempt to settle the controversy, respondent offered to pay the ₱900,000 to complainant in the presence of San Diego, so complainant could in turn pay San Diego the ₱2M.
Respondent also denied that she prepared the affidavit of loss which was offered as evidence by complainant in the petition for issuance of lost title.
Respondent further denied that she represented San Diego in the criminal cases of perjury and false testimony which the latter filed against complainant.
In a report and recommendation dated July 25, 2000, the IBP Investigating Commissioner20 found respondent guilty of dishonesty and malpractice for concealing the identity of the person in actual possession of complainant’s documents and for preparing an affidavit of loss even if she knew that the documents were in San Diego’s custody. A suspension for six months from the practice of law was accordingly recommended.
A careful study of the records reveals that the IBP recommendation relied solely on complainant’s self-serving and unsupported claims. A re-examination of the differing claims of the parties, however, discloses that, instead of the grounds relied on by the IBP, respondent should be held accountable for certain serious violations of the Code of Professional Responsibility.
Canon 15.03 of the Code of Professional Responsibility provides:
A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.
A lawyer may not, without being guilty of professional misconduct, act as counsel for a person whose interest conflicts with that of his present21 or former client.22 He may not also undertake to discharge conflicting duties any more than he may represent antagonistic interests. This stern rule is founded on the principles of public policy and good taste.23 It springs from the relation of attorney and client which is one of trust and confidence.
The test of conflict of interest 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 its performance.24 The conflict exists 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 represented him and also whether he will be called upon in his new relation to use against the first client any knowledge acquired through their connection.25
In this case, respondent not only admitted that she represented both complainant and San Diego in unrelated actions but also counseled both of them in the sale of the Alabang property.
As their lawyer, she was duty-bound to protect both of their interests. She should have therefore refrained from jumbling their affairs. Yet she introduced complainant to another client of hers as a buyer of the property. She even had the temerity to broker the transaction. At that early stage, she should have realized that her role as their lawyer had been seriously compromised. Since buyer and seller had evident antagonistic interests, she could not give both of them sound legal advice. On top of this, respondent’s obvious tendency then was to help complainant get a high selling price since the amount of her commission was dependent on it.
After several suits were filed as an offshoot of the transaction between her two clients, respondent found herself in a very tight situation. Although she denied that she represented any of them, her active participation in the transaction was obvious and it clearly displayed an utter disregard of the rule against discharging inconsistent duties to her clients. The great likelihood was that she would be called upon to use against either the complainant or San Diego information acquired through her professional connection with them.
Furthermore, her role as their counsel in the other unrelated cases was also compromised. Both parties had, at this point, become wary of her since she had by then taken – for her own convenience – San Diego’s side by refusing to return the ₱900,000 to complainant until San Diego was paid. It was not surprising therefore that complainant filed this administrative case because of the suspicion that respondent had double-crossed her.
The records further establish that respondent collected her full commission even before the transaction between complainant and San Diego was completed. This unmasked respondent’s greed which she now wants us so badly to ignore. Her integrity was placed in serious doubt the moment her promised commission started motivating her every move. Her behavior was, sad to say, simply distasteful.
Likewise, her act of borrowing money from a client was a violation of Canon 16.04 of the Code of Professional Responsibility:
A lawyer shall not borrow money from his client unless the client’s interests are fully protected by the nature of the case and by independent advice.
A lawyer’s act of asking a client for a loan, as what respondent did, is very unethical. It comes within those acts considered as abuse of client’s confidence. The canon presumes that the client is disadvantaged by the lawyer’s ability to use all the legal maneuverings to renege on her obligation.
Finally, respondent should be reminded that a lawyer should, at all times, comply with what the court lawfully requires.26 Here, respondent continues to disregard the final order of the Court of Appeals finding her liable for the ₱900,000 she received from complainant. We see no justification for her continued delay in complying with an order that has long become final. Respondent adamantly insists that she and complainant should simultaneously settle their obligations. As a lawyer, she should have known that her obligation to complainant was independent of and separate from complainant’s obligation to the buyer. Her refusal to comply with the appellate court’s order is, therefore, a willful disobedience to its lawful orders and must not be left unpunished.
WHEREFORE, respondent Atty. Carmencita Bautista Lozada is hereby found guilty of violating Rule 15.03 and 16.04 of the Code of Professional Responsibility and of willfully disobeying a final and executory decision of the Court of Appeals. She is hereby SUSPENDED from the practice of law for a period of two (2) years from notice, with a STERN WARNING that a repetition of the same or similar acts will be dealt with more severely.
Let copies of this Resolution be furnished all courts of the land, the Integrated Bar of the Philippines, as well as the Office of the Bar Confidant for their information and guidance, and let it be entered in respondent’s personal records.
SO ORDERED.
RENATO C. CORONA
Associate Justice
W E C O N C U R :
|
HILARIO G. DAVIDE, JR.
Chief Justice |
|
REYNATO S. PUNO
Associate Justice |
ARTEMIO V. PANGANIBAN
Associate Justice |
|
LEONARDO A. QUISUMBING
Associate Justice |
CONSUELO YNARES-SANTIAGO
Associate Justice |
|
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice |
ANTONIO T. CARPIO
Associate Justice |
|
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice |
CONCHITA CARPIO MORALES
Associate Justice |
|
ROMEO J. CALLEJO, SR.
Associate Justice |
ADOLFO S. AZCUNA
Associate Justice |
|
DANTE O. TINGA
Associate Justice |
MINITA CHICO-NAZARIO
Associate Justice |
|
CANCIO C. GARCIA
Associate Justice |
Footnotes
1 Dated August 8, 1998; Rollo, pp. 1-7.
2 Id., pp. 8-10.
3 The selling price of the Alabang property was ₱6.4M.
4 TCT No. 168173; Id., pp. 101-102.
5 Deed of Sale executed by Island Masters Realty and Development Corporation in favor of complainant covering the subject property.
6 Police Blotter; Id., p. 32.
7 Id., p. 116.
8 Order issued by RTC, Br. 142, Makati in Case No. M-2282, April 10, 1992; Id., pp. 117-119.
9 Id., pp. 33-37.
10 Decision of Civil Case No. 93-65367 rendered by RTC, Br. 30, Manila in favor of San Diego; January 31, 1996; Penned by Judge Senecio O. Ortile; Id., pp. 120-126.
11 Decision of Civil Case No. 92-2988 rendered by RTC, Br. 63, Manila in favor of Bobie Rose Frias; November 11, 1994; Penned by Judge Julio R. Logarta; Id., pp. 137-139.
12 Decision of CA-G.R. CV No. 50636 rendered by the Court of Appeals affirming RTC, Br. 63, Manila but reducing the award to P P900,000; March 3, 1999; Penned by Justice Ramon Mabutas, Jr. and concurred in by Justices Hilarion L. Aquino and Candido V. Rivera of the Thirteenth Division; Id., pp. 140-149.
13 Id., pp. 15-27.
14 Id., p. 28.
15 In the MOA, the buyer Dra. San Diego-Sison agreed to pay ₱3M to complainant which could either be considered as: (a) down payment to the ₱6.4M selling price of the property, in case she decides to buy within the 6-month period agreed upon; and (b) loan with 36% per annum interest, in case she decides not to proceed with the sale.
16 Id., p. 10.
17 AGREEMENT
FOR VALUE RECEIVED, I, CARMENCITA S. BAUTISTA-LOZADA, of legal age, Filipino, married and presently residing at 154 Palasan, Valenzuela, Metro Manila do hereby promise to pay BOBIE ROSE FRIAS the amount of NINE HUNDRED THOUSAND (₱900,000) within one year from this date with interest (bank rate).
Payment of the said amount shall be subject to the following conditions:
(1) If the sale of the house and lot at Ayala Alabang between Dra. Flora San Diego-Sison would materialize and consummate within a period of one (1) year from this date, I will not return the ₱600,000 and the same shall be considered as commission and attorney’s fees. However, the amount of ₱300,000 shall be returned to Bobie Rose Frias.
(2) If the sale does not materialize, I will return the whole amount within one year from this date with interest (bank rate).
(3) In case I will be able to sell the said property to other persons, the commission and attorney’s fees shall be as follows which amount Bobie Rose Frias agreed to pay to me:
Selling Price Commission/Attorney’s Fees
₱ 6.4M ₱ 600,000.00
7.0M 1,000,000.00
7.5M 1,200,000.00
8.0M 1,400,000.00
Done this 7th day of December, 1990.
(signed) (signed)
BOBIE ROSE FRIAS ATTY. CARMENCITA S. BAUTISTA-LOZADA
(signed)
WITNESS
Id., p. 29.
18 December 7, 1990
This is to acknowledge receipt of the sum of ONE HUNDRED THOUSAND (₱100,000) from Bobie Rose Frias to be given to Nelia Sta. Cruz
Received by:
(signed)
Atty. Carmencita Bautista-Lozada
Id., p. 30.
19 March 20, 1991
Ms. Bobie Rose Frias
Marcelo Green Village
Parañaque, Metro Manila
Dear Ms. Bobie Rose Frias:
This is to formally inform you that I have finally decided not to proceed with the purchase of your house and lot at Ayala Alabang due to the objection of my husband.
While you have given me a period of six months within which to decide whether or not to purchase the said property, I am informing you of my decision this early so you could offer the property to other interested buyers.
As per our agreement, the amount of ₱2,000,000.00 which you received from me will be considered as loan in the event that I would decide not to purchase the property within six months and the property will serve as security or collateral for the loan plus the interest of 36% per annum (bank rate at the time the money was given).
Upon payment of the ₱2,000,000.00 plus interest, I shall be most willing to release the encumbrance on your property and deliver the title to you.
Thank you.
Yours truly,
(signed)
DRA. FLORA SAN DIEGO-SISON
Id., p. 31.
20 Lydia Navarro.
21 Abaqueta v. Atty. Florido, 443 Phil. 688 (2003).
22 Cruz v. Jacinto, 385 Phil. 359 (2000).
23 Agpalo, Legal Ethics, 6th Edition, p. 219, 225; citing cases.
24 Gamilla v. Mariño, Jr., 447 Phil. 419 (2003).
25 Hornilla v. Salunat, A.C. No. 5804, 1 July 2003, 405 SCRA 220.
26 Agpalo, p. 389, citing cases.
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