Wednesday, May 12, 2010

Conflict of interest; gross ignorance of the law.

The case of ROBERT BERNHARD BUEHS vs. ATTY. INOCENCIO T. BACATAN, A.C. No. 6674, June 30, 2009, involves a petition for the disbarment of respondent Atty. Inocencio T. based on representation of conflicting interests and gross misconduct for usurpation of authority.

The Supreme Court found the respondent GUILTY of gross misconduct for representing conflicting interests, gross ignorance of the law for issuing an order without authority, and failure to update his membership dues to the IBP; and was SUSPENDED from the practice of law for two (2) years, with a stern warning that a repetition of the same or similar acts will be dealt with more severely.

The Court further made the following pronouncements, thus:

1. Respondent is mistaken. Jurisdiction, once acquired, is not lost upon the instance of the parties but continues until the case is terminated, or until the writ of execution has been issued to enforce the judgment. The Indorsement was dated June 26, 2003, at which time the decision had not yet been enforced, as evidenced by respondent’s issuance of an Alias Writ of Execution dated December 28, 2004.

2. Even assuming that he had already lost jurisdiction over the illegal dismissal case, he remains liable for representing conflicting interests. Relevant provisions of the Code of Professional Responsibility state:

Rule 15.01 – A lawyer, in conferring with a prospective client, shall ascertain as soon as practicable whether the matter would involve a conflict with another client or is own interest, and if so, shall forthwith inform the prospective client.

Rule 15.03 – A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.

3. In Samala v. Valencia, the Court held that a lawyer may not 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, which springs from the relation of attorney and client, which is one of trust and confidence. Lawyers should not only keep inviolate the client's confidence, but also avoid the appearance of treachery and double-dealing. Only then can litigants be encouraged to entrust their secrets to their lawyers, which is of paramount importance in the administration of justice.

4. A conflict of interests also exists when 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 the performance thereof.

5. In the present case, respondent was appointed as Voluntary Arbitrator for the parties in the illegal dismissal case. He took on the duty to act as a disinterested person to hear the parties’ contentions and give judgment between them. However, instead of exhibiting neutrality and impartiality expected of an arbitrator, respondent indorsed a criminal complaint to the Office of the City Prosecutor of Zamboanga City for possible criminal prosecution against herein complainant, and signed the said Indorsement as counsel for complainants in the illegal dismissal case. The Court cannot accept the contention of respondent that the phrase “counsel for the complainants,” found in the Indorsement, was a mere misprint. For if it were so, he could have easily crossed out the phrase or prepared another Indorsement deleting said phrase. His claim of misprint, therefore, is a last futile attempt based on the clearly established evidence that he was acting in both capacities as counsel and arbitrator at the same time, an act which was clearly reprehensible and violative of the principle of conflict of interests.

6. Respondent likewise showed gross ignorance of the law when he issued a Hold Departure Order requesting the BID to place petitioner in its Watchlist, completely contravening Supreme Court Circular No. 39-97, which provides that said Orders shall be issued only in criminal cases within the exclusive jurisdiction of the Regional Trial Courts. Apropos is Tadlip v. Borres, Jr., where therein respondent, lawyer and provincial adjudicator, failed to apply the specific provisions of the 1994 New Rules of Procedure of the Department of Agrarian Reform Regional Arbitration Board (DARAB). The Court found him guilty of gross ignorance of the law and ruled that, since respondent became part of the quasi-judicial system of the government, his case may be likened to administrative cases of judges whose manner of deciding cases was also subject of administrative cases.

7. Lastly, as the Investigating Commissioner also discovered that respondent failed to update his IBP membership dues and pay his community tax certificate for the year 2004, he is likewise liable under Sections 9 and 10, Rule 139-A of the Rules Court, which read:

Section 9. Membership dues. – Every member of the Integrated Bar shall pay such annual dues as the Board of Governors shall determine with the approval of the Supreme Court. A fixed sum equivalent to ten percent (10%) of the collections from each Chapter shall be set aside as a Welfare Fund for disabled members of the Chapter and the compulsory heirs of deceased members.

Section 10. Effect of non-payment of dues. – Subject to the provisions of Section 12 of this Rule, default in the payment of annual dues for six months shall warrant suspension of membership in the Integrated Bar, and default in such payment for one year shall be a ground for the removal of the name of the delinquent member from the Roll of Attorneys.

8. Under Section 27, Rule 138 of the Rules of Court, a member of the Bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office. Gross misconduct has been defined as any inexcusable, shameful or flagrantly unlawful conduct on the part of the person involved in the administration of justice, conduct that is prejudicial to the rights of the parties or to the right determination of the cause. Such conduct is generally motivated by a premeditated, obstinate or intentional purpose. The term, however, does not necessarily imply corruption or criminal intent.

In previous cases involving representation of conflicting interests, the Court has sanctioned erring lawyers either by reprimand, or by suspension from the practice of law from six months to two years.

In the afore-cited case Tadlip v. Borres, Jr., therein respondent lawyer and provincial adjudicator found guilty of gross ignorance of the law was suspended from the practice of law for six (6) months.

In Santos, Jr. v. Llamas, where the respondent lawyer did not pay his IBP dues for eight years because he believed that as a senior citizen, he was exempt from paying the same, the Court suspended him from the practice of law for one (1) year, or until the respondent paid his dues.

In the present case, the Investigating Commissioner recommended the imposition of a one (1) year suspension, while the IBP Board of Governors recommended a two (2) year suspension. The Court, taking into account the recommendations of the Investigating Commissioner and the Board of Governors of the IBP, deems it appropriate to impose a penalty of two (2)- year suspension upon respondent, which is within the range of the penalty of six (6) months to two (2) years for offenses similar to those committed by respondent Atty. Bacatan, as held in several cases.