REY J. VARGAS AND EDUARDO A. PANES, JR., Complainants, - versus - ATTY. MICHAEL A. IGNES, ATTY. LEONARD BUENTIPO MANN, ATTY. RODOLFO U. VIAJAR, JR., AND ATTY. JOHN RANGAL D. NADUA, Respondents. | A.C. No. 8096 Present: MORALES, BRION, BERSAMIN, ABAD, VILLARAMA, JR., Promulgated: July 5, 2010 |
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RESOLUTION
VILLARAMA, JR., J.:
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After a careful study of the case and the parties' submissions, we find respondents administratively liable.
At the outset, we note that the parties do not dispute the need for OGCC and COA conformity if a GOCC hires private lawyers. Nonetheless, we shall briefly recall the legal basis of this rule. Under Section 10, Chapter 3, Title III, Book IV of the Administrative Code of 1987, it is the OGCC which shall act as the principal law office of all GOCCs. And Section 3 of Memorandum Circular No. 9, issued by President Estrada on August 27, 1998, enjoins GOCCs to refrain from hiring private lawyers or law firms to handle their cases and legal matters. But the same Section 3 provides that in exceptional cases, the written conformity and acquiescence of the Solicitor General or the Government Corporate Counsel, as the case may be, and the written concurrence of the COA shall first be secured before the hiring or employment of a private lawyer or law firm. In Phividec Industrial Authority v. Capitol Steel Corporation, we listed three (3) indispensable conditions before a GOCC can hire a private lawyer: (1) private counsel can only be hired in exceptional cases; (2) the GOCC must first secure the written conformity and acquiescence of the Solicitor General or the Government Corporate Counsel, as the case may be; and (3) the written concurrence of the COA must also be secured.
In the case of respondents, do they have valid authority to appear as counsels of KWD?
We find that Attys. Nadua, Viajar, Jr. and Mann had no valid authority to appear as collaborating counsels of KWD in SCA Case No. 50-24 and Civil Case No. 1799. Nothing in the records shows that Atty. Nadua was engaged by KWD as collaborating counsel. While the 4th Whereas Clause of Resolution No. 009 partly states that he and Atty. Ignes "presently stand as KWD legal counsels," there is no proof that the OGCC and COA approved Atty. Nadua's engagement as legal counsel or collaborating counsel. Insofar as Attys. Viajar, Jr. and Mann are concerned, their appointment as collaborating counsels of KWD under Resolution No. 009 has no approval from the OGCC and COA.
Attys. Nadua, Viajar, Jr. and Mann are in the same situation as the private counsel of Phividec Industrial Authority in Phividec. In that case, we also ruled that said private counsel of Phividec Industrial Authority, a GOCC, had no authority to file the expropriation case in Phividec's behalf considering that the requirements set by Memorandum Circular No. 9 were not complied with.
Thus, Resolution No. 009 did not grant authority to Attys. Nadua, Viajar, Jr. and Mann to act as collaborating counsels of KWD. That Atty. Ignes was not notified of the pre-termination of his own retainership contract cannot validate an inexistent authority of Attys. Nadua, Viajar, Jr. and Mann as collaborating counsels.
Thus, Resolution No. 009 did not grant authority to Attys. Nadua, Viajar, Jr. and Mann to act as collaborating counsels of KWD. That Atty. Ignes was not notified of the pre-termination of his own retainership contract cannot validate an inexistent authority of Attys. Nadua, Viajar, Jr. and Mann as collaborating counsels.
In the case of Atty. Ignes, he also appeared as counsel of KWD without authority, after his authority as its counsel had expired. True, the OGCC and COA approved his retainership contract for one (1) year effective April 17, 2006. But even if we assume as true that he was not notified of the pre-termination of his contract, the records still disprove his claim that he stopped representing KWD after April 17, 2007.
Atty. Ignes offered no rebuttal to the verified manifestation of complainants filed with the IBP on March 10, 2008. Attached therein was the transcript of stenographic notes in Civil Case No. 1799 taken on January 28, 2008 when Atty. Ignes argued the extremely urgent motion for the immediate return of the facilities of the KWD to the KWD Arellano Office. The RTC was compelled to ask him why he seeks the return of KWD properties if he filed the motion as counsel of Ms. Gomba. When the RTC noted that KWD does not appear to be a party to the motion, Atty. Ignes said that KWD is represented by Ms. Gomba per the caption of the case. Atty. Ignes also manifested that they will file a motion for reconsideration of the orders dismissing Civil Case No. 1799 and Civil Case No. 1793. The RTC ruled that it will not accept any motion for reconsideration in behalf of KWD unless he is authorized by the OGCC, but Atty. Ignes later filed a notice of appeal dated February 28, 2008, in Civil Case No. 1799. As the notice of appeal signed by Atty. Ignes was filed by one (1) not duly authorized by law, the RTC, in its Order dated April 8, 2008, denied due course to said notice of appeal.
As we see it, Atty. Ignes portrayed that his appearance on January 28, 2008 was merely as counsel of Ms. Gomba. He indicted himself, however, when he said that Ms. Gomba represents KWD per the case title. In fact, the extremely urgent motion sought the return of the facilities of KWD to its Arellano Office. Clearly, Atty. Ignes filed and argued a motion with the interest of KWD in mind. The notice of appeal in Civil Case No. 1799 further validates that Atty. Ignes still appeared as counsel of KWD after his authority as counsel had expired. This fact was not lost on the RTC in denying due course to the notice of appeal.
Now did respondents willfully appear as counsels of KWD without authority?
The following circumstances convince us that, indeed, respondents willfully and deliberately appeared as counsels of KWD without authority. One, respondents have admitted the existence of Memorandum Circular No. 9 and professed that they are aware of our ruling in Phividec. Thus, we entertain no doubt that they have full grasp of our ruling therein that there are indispensable conditions before a GOCC can hire private counsel and that for non-compliance with the requirements set by Memorandum Circular No. 9, the private counsel would have no authority to file a case in behalf of a GOCC. Still, respondents acted as counsels of KWD without complying with what the rule requires. They signed pleadings as counsels of KWD. They presented themselves voluntarily, on their own volition, as counsels of KWD even if they had no valid authority to do so.
Two, despite the question on respondents' authority as counsels of KWD which question was actually raised earlier in Civil Case No. 1799 by virtue of an urgent motion to disqualify KWD's counsels dated February 21, 2007 and during the hearing on February 23, 2007 respondents still filed the supplemental complaint in the case on March 9, 2007. And despite the pendency of this case before the IBP, Atty. Ignes had to be reminded by the RTC that he needs OGCC authority to file an intended motion for reconsideration in behalf of KWD.
With the grain of evidence before us, we do not believe that respondents are innocent of the charge even if they insist that the professional fees of Attys. Nadua, Viajar, Jr. and Mann, as collaborating counsels, were paid not from the public coffers of KWD. To be sure, the facts were clear that they appeared as counsels of KWD without authority, and not merely as counsels of the members of the Dela Peña board and KWD personnel in their private suits.
Consequently, for respondents' willful appearance as counsels of KWD without authority to do so, there is a valid ground to impose disciplinary action against them. 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, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as an attorney for a party to a case without authority to do so.
Disbarment, however, is the most severe form of disciplinary sanction, and, as such, the power to disbar must always be exercised with great caution, and should be imposed only for the most imperative reasons and in clear cases of misconduct affecting the standing and moral character of the lawyer as an officer of the court and member of the bar. Accordingly, disbarment should not be decreed where any punishment less severe such as a reprimand, suspension or fine, would accomplish the end desired. In Santayana, we imposed a fine of P5,000 on the respondent for willfully appearing as an attorney for a party to a case without authority to do so. The respondent therein also appeared as private counsel of the National Electrification Administration, a GOCC, without any approval from the OGCC and COA.
Conformably with Santayana, we impose a fine of P5,000 on each respondent.
On another matter, we note that respondents stopped short of fully narrating what had happened after the RTC issued four (4) orders on March 24, 2007 and on April 13, 2007 in Civil Case No. 1799.
As willingly revealed by complainants, all four (4) orders were nullified by the Court of Appeals. We are compelled to issue a reminder that our Code of Professional Responsibility requires lawyers, like respondents, to always show candor and good faith to the courts.
As willingly revealed by complainants, all four (4) orders were nullified by the Court of Appeals. We are compelled to issue a reminder that our Code of Professional Responsibility requires lawyers, like respondents, to always show candor and good faith to the courts.
WHEREFORE, the petition is GRANTED. The assailed Resolution No. XVIII-2008-335 passed on July 17, 2008 by the IBP Board of Governors in CBD Case No. 07-1953 is REVERSED and SET ASIDE.
Respondents Attys. Michael A. Ignes, Leonard Buentipo Mann, Rodolfo U. Viajar, Jr., and John Rangal D. Nadua are found GUILTY of willfully appearing as attorneys for a party to a case without authority to do so and FINED
P5,000 each, payable to this Court within ten (10) days from notice of this Resolution. They are STERNLY WARNED that a similar offense in the future will be dealt with more severely.
P5,000 each, payable to this Court within ten (10) days from notice of this Resolution. They are STERNLY WARNED that a similar offense in the future will be dealt with more severely.
Let a copy of this Resolution be attached to respondents' personal records in the Office of the Bar Confidant.
SO ORDERED.
