Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
A.C. No. 9390 August 1, 2012
EMILIA O. DHALIWAL, Complainant,
vs.
ATTY. ABELARDO B. DUMAGUING, Respondent.
R E S O L U T I O N
PERLAS-BERNABE, J.:
Emilia O. Dhaliwal filed a complaint for violation of Canon 16 of the Code of Professional Responsibility against Atty. Abelardo B. Dumaguing.
In her sworn statement, complainant alleged that she engaged the services of respondent in connection with the purchase of a parcel of land from Fil-Estate Development, Inc. (Fil-Estate). On June 13, 2000, upon the instruction of respondent, complainant's daughter and son-in-law withdrew ₱ 342,000.00 from the Philippine National Bank (PNB) and handed the cash over to respondent. They then proceeded to BPI Family Bank Malcolm Square Branch where respondent purchased two manager's checks in the amounts of ₱ 58,631.94 and ₱ 253,188.00 both payable to the order of Fil-Estate Inc. When asked why the manager's checks were not purchased at PNB, respondent explained that he has friends at the BPI Family Bank and that is where he maintains an account. These manager's checks were subsequently consigned with the Housing and Land Use Regulatory Board (HLURB) after complainant’s request to suspend payments to Fil-Estate had been granted. On September 22, 2000, respondent, on behalf of complainant, filed with the HLURB a complaint for delivery of title and damages against Fil-Estate. A week after or on September 29, 2000, he withdrew the two manager's checks that were previously consigned. On March 3, 2003, complainant informed the HLURB through a letter that respondent was no longer representing her. On March 11, 2003, the HLURB promulgated its Decision, adverse to complainant, finding the case for delivery of title and damages premature as there was no evidence of full payment of the purchase price. Thereafter, complainant made demands upon respondent to return and account to her the amounts previously consigned with the HLURB. Respondent did not comply. Thus, complainant prays that respondent be disbarred.
In his answer, respondent admitted substantially all of the allegations in the complaint. In defense, he claims that the amount of P311,819.94 was consigned to the HLURB to cover the full payment of the balance of the purchase price of the lot with Fil-Estate. Fil-Estate, however, did not accept the same as it wanted complainant to also pay interests and surcharges totalling more than ₱ 800,000.00. Because the amount was formally consigned with the HLURB, he allegedly filed a motion1 to verify if the judgment in the case was already satisfied. He claimed that his motion has not yet been acted upon; hence, he did not deem it proper as yet to return the consigned amount.
Following the submission by complainant of her verified position paper and the failure of respondent to submit his, despite having been given ample opportunity to do so, the Commission on Bar Discipline, through Attorney Gerely C. Rico, submitted its Report and Recommendation finding complainant to have sufficiently established that respondent violated Canon 16 of the Code of Professional Responsibility. It also found respondent to have submitted a false and fabricated piece of documentary evidence, as the January 2004 Motion attached to his answer as Annex A did not bear any proof of service upon the opposing party and proof of filing with the HLURB. The Commission recommended that respondent be suspended from the practice of law for a period of one (1) year. On September 19, 2007, the IBP Board of Governors passed Resolution No. XVIII-2007-93, adopting with modification the Commission's Report and Recommendation, to wit:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondent's violation of Canon 16 of the Code of Professional Responsibility by his failure to return and account to complainant the amount previously consigned with the HLURB despite demand, Atty. Abelardo B. Dumaguing is hereby SUSPENDED from the practice of law for six (6) months and Orderedto Return the amount of ₱ 311,819.94 to complainant within thirty (30) days from receipt of notice.
Respondent's motion for reconsideration was denied by the IBP Board of Governors in Resolution No. XX-2012-42.
The Court adopts the IBP's findings of fact and conclusions of law.
The Code of Professional Responsibility provides:
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.
Rule 16.02-A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him.
Rule 16.03-A lawyer shall deliver the funds and property of his client when due or upon demand.
Money entrusted to a lawyer for a specific purpose, such as payment for the balance of the purchase price of a parcel of land as in the present case, but not used for the purpose, should be immediately returned.2 "A lawyer's failure to return upon demand the funds held by him on behalf of his client gives rise to the presumption that he has appropriated the same for his own use in violation of the trust reposed in him by his client. Such act is a gross violation of general morality as well as of professional ethics. It impairs public confidence in the legal profession and deserves punishment."3
Since respondent withdrew the consignation of the BPI manager’s checks in the total amount of ₱ 311,891.94 from the HLURB and the same was not used to settle the balance of the purchase price of the parcel of land purchased by complainant from Fil-Estate, then reimbursement with legal interest4 was properly ordered by the IBP.
Respondent's proffered excuse of having to await the HLURB action on his alleged motion-- the filing of which he miserably failed to prove-- as a condition to the return of the sum of ₱ 311 ,891.94 to complainant compounds his liability and even bolstered his attitude to use dishonest means if only to evade his obligation. It underlines his failure to meet the high moral standards required of members of the legal profession.
WHEREFORE, Atty. Abelardo B. Dumaguing is adjudged GUILTY of violating Canon 16 of the Code of Professional Responsibility. He is hereby SUSPENDED from the practice of law for a period of six (6) months effective upon receipt of this Resolution. He is also ordered to return to complainant Emilia O. Dhaliwal, the amount of P311,819.94 with legal interest of six percent (6%) per annum from the time of his receipt of the money on September 29, 2000 up to the finality of this Resolution and twelve percent (12%) per annum from finality thereof until paid.
Let copies of this Resolution be furnished the Office of the Bar Confidant to be entered into respondent’s personal records as attorney. Copies shall likewise be furnished the IBP and the Office of the Court Administrator for circulation to all courts concerned.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate justice
Chairperson
DIOSDADO M. PERALTA
Associate justice |
LUCAS P. BERSAMIN*
Associate justice |
ROBERTO A. ABAD
Associate justice
Footnotes
* Designated member in lieu of Justice Jose C. Mendoza, per Special Order No. 1282 dated August 1, 2012.
1 Dated January 19, 2004.
2 Rhodora B. Yutuc v. Atty. Daniel Rafael B. Penuela, A.C. No. 7904, September 22, 2008,citingAdrimisin v. Javier, A.C. No. 2591, September 8, 2006, 501 SCRA 192, 199.
3 Adrimisin v. Javier, Id. at 199-200.
4 Eastern Shipping Lines, Inc. v. Court of Appeals, G.R. No. 97412, July 12, 1994, 234 SCRA 78.
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