In the very recent case of OFELIA R. SOMOSOT vs. ATTY. GERARDO F. LARA, A.C. No. 7024, January 30, 2009, the Philippine Supreme Court suspended the respondent ATTY. GERARDO F. LARA from the practice of law for a period of three (3) months. The Court did not disbar the lawyer. It found that the client was equally negligent.
I wish to digest hereunder the said decision for purposes of legal research of the visitors of this blog.
The complainant alleged that she retained the services of the respondent as her counsel in Civil Case No. Q01-43544, entitled “Golden Collection Marketing Corporation v. Ofelia Somosot, et al.,” filed against her and her co-defendants for the collection of a sum of money amounting to P1.3 Million. Her defense was that it was the plaintiff who actually owed her P800,000.00. She claimed that she had the evidence to prove this defense at the trial. The respondent agreed to handle the case and duly entered his appearance as counsel after securing his acceptance fee.
In his comment, the respondent denied that he failed to exercise the diligence required of him as counsel in Civil Case No. Q01-43544. He argued that pursuant to his oath as counsel, he pursued the complainant's case “according to his own ability and knowledge.”
The Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP) recommended that respondent be reprimanded for lack of reasonable diligence in representing the complainant. Thus:
"It appears that the respondent was to some degree, remiss in fulfilling his duties to complainant Somosot. While it may be true that he had filed an answer in Civil Case No. Q01-43544, objected to the plaintiff's interrogatories and requests for admission, asked for reconsideration of the decision rendered by the court and opposed the adverse party's efforts to have the same executed, it can nevertheless be seen that the remedial measures taken by the respondent were inadequate, especially in view of the direction which the proceedings were taking.
"The respondent is not incorrect in saying that a lawyer may be relieved of his duties even without the conformity of his client when he lost all contact with the latter, and the complainant's failure to settle his unpaid fees is not received without sympathy. The fact remains, however, that the respondent's efforts to be discharged as counsel were disallowed by the court, under the circumstances, he was bound by his oath to represent complainant Somosot and to advocate her cause to the best of his ability.
"The respondent claims that in late December 2001, he was finally able to talk to complainant Somosot and was told that she already had another lawyer by the name of Atty. Tomas Dulay. Considering his stated desire to withdraw from the case and his own declaration that he had again come into the means of contacting the complainant, it is thus entirely puzzling why he did not at this point, revive his efforts to be relieved of his responsibilities in Civil Case No. Q02-43544 given complainant Somosot's alleged engagement of Atty. Tomas Dulay and her presumed willingness to give her consent to such discharge. As it is, respondent Atty. Lara remained as counsel of record and for some undisclosed reason did not appeal the decision against his client."
This is not to say that the client is entirely without fault. While complainant Ofelia Somosot's narrative is in many respects at odds with that of the respondent, it is nevertheless clear from her submissions that she never made any effort to contact the respondent to follow up the status of the case, but instead expected the latter to take complete initiative in this regard.
It has been held that it is the duty of a party-litigant to remain in contact with his lawyer in order to be informed of the progress of his case. “True enough, the party-litigant should not rely totally on his counsel to litigate his case even if the latter expressly assures that the former's presence in court will no longer be needed. No prudent party will leave the fate of his case entirely to his lawyer. Absence in one or two hearings may be negligible but want of inquiry or update on the status of his case for several months (four, in this case) is inexcusable. It is the duty of a party-litigant to be in contact with his counsel from time to time in order to be informed of the progress of his case.” Thus the complainant did not do, and such circumstance can only mitigate in respondent's favor.
The Supreme Court held that the respondent had violated the basic rule, expressed under Canon 18 of the Code of Professional Responsibility, that “a lawyer shall serve his client with competence and diligence.”
While it may be said that the respondent did not completely abandon the case, his handing of the complainant’s defense left much to be desired, the Court said.
At any rate, according to the Court, what lightens the impact of the respondent’s mishandling of the case is the complainant’s own failings as a client. The non-payment of fees is a factor that we cannot simply disregard. As a rule, law practice is not a pro bono proposition and a lawyer’s sensitivity and concern for unpaid fees are understandable; lawyers incur expenses in running their practice and generally depend, too, on their law practice income for their living expenses. Likewise, the respondent’s appointment as a consultant should be considered although it is a matter that none of the parties have fully examined. Both the non-payment of fees and the appoint to a public office, however, were not reasons properly presented before the trial court through a motion that informed the court of all the surrounding circumstances of the desired withdrawal. Instead, another reason was given by way of a mere notice lacking the client’s express consent. Thus, the court’s denial of the desired withdrawal was not totally unexpected.
More than these reasons and as Commissioner Limpingco correctly noted, the complainant never made any effort to contact the respondent to follow up the status of her case, expecting instead the respondent to take full and complete initiative in this regard. While the respondent, as counsel, has the obligation to inform his client of the material developments in the case, particularly of the aspects of the case that would require the client’s instructions or participation, this obligation is balanced by a complementary duty on the part of a party-litigant to remain in contact with his lawyer in order to be informed of the progress of the case.
The complainant’s failing in this regard is her failure to inform her counsel of her change of business address, a serious lapse but one that a resourceful counsel could have easily handled. In a balancing, the greater fault still lies with the respondent as he did not appear, based on the records of the case, to be a lawyer whose practice routine included regular reporting to clients on matters other than billings. We note that he did not bother to report (or even allege that he bothered to report) on the interrogatories and request for admission – incidents that can make or break a case as it did break the defendant’s case before the trial court. Despite knowledge of his client’s location gained in late December 2001, he did not likewise bother to inform the complainant of the adverse decision against her in June 2002, taking it upon himself to simply file a motion for reconsideration and to accept the court’s ruling when his motion was denied. In our view, these are law practice mortal sins that we cannot allow to simply be glossed over or be penalized by a simple reprimand.
The Court stated that it could not disbar the respondent as the complainant demands in light of the complainant’s own contributory faults. Disbarment is an ultimate remedy in the professional world, no less serious and weighty as the power to impose reclusion perpetua in criminal cases; in both, recovery from the penalty – although not totally impossible – is extremely difficult to attain. Thus, the Court must at all times act with caution and due consideration, taking into account not only the interests of the immediate parties, but the interest of the public, the bar and the administration of justice as well.
