EN BANC
[ A.C. No. 11095 [Formerly CBD Case No. 11-3140], September 20, 2016 ]EUFEMIA A. CAMINO v. ATTY. RYAN REY L. PASAGUI +
EUFEMIA A. CAMINO, COMPLAINANT, VS. ATTY. RYAN REY L. PASAGUI, RESPONDENT.
D E C I S I O N
EUFEMIA A. CAMINO v. ATTY. RYAN REY L. PASAGUI +
EUFEMIA A. CAMINO, COMPLAINANT, VS. ATTY. RYAN REY L. PASAGUI, RESPONDENT.
D E C I S I O N
PER CURIAM:
Before us is a Disbarment Complaint[1] dated July 13, 2011 filed by Eufemia A. Camino against respondent Atty. Ryan Rey L. Pasagui before the Integrated Bar of the Philippines-Commission on Bar Discipline (IBP-CBD), docketed as CBD Case No. 11-3140, now A.C. No. 11095.
The facts are as follows:
Complainant Eufemia A. Camino (Camino) is the vendor of a lot covered by Transfer Certificate of Title (TCT) No. T-70247,[2] still registered under the name of the Heirs of Camino's father. Respondent Atty. Ryan Rey L. Pasagui (Atty. Pasagui) was allegedly the lawyer of Congresswoman Mila Tan (Tan) who was in charge of handling the payments for the property which Camino sold to Tan in 2010. Camino narrated that sometime after the election, Atty. Pasagui offered her Tan's payment in the amount of Thirty Thousand Pesos (P30,000.00). However, Camino refused to accept the same as she wanted to have the payment in full and added that she also returned to Atty. Pasagui the postdated check amounting to Two Million Pesos (P2,000,000.00) which Tan previously issued.
Atty. Pasagui then advised her to this effect, "maupay ngani na war ay mo karawta, kay magrerecall man ngani diri ka na mababaydan kay war ay na hi Congresswoman Mila Tan kwarta. Pamiling nala hin iba na buyer ibabalik nato it kwarta ha iya ngan maghihimo nala ako hin demand letter na kinahanglan na maimpasan kay kun diri makahatag, ibabalik nala an iya nahatag" (Good that you did not accept it because there will be a recall and Congresswoman Mila would not have enough money to pay you. Look for another buyer and we'll return her money. I will prepare a demand letter that she must pay you or else you will just pay her back the amount she has paid). Camino further alleged that Atty. Pasagui assured her that he will take care of everything and encouraged her to look for another buyer and advised her to set its price at Seven Million Pesos (Php7,000,000.00).
Few weeks after, Camino informed Atty. Pasagui that she has a buyer but the latter wanted to have a clean title of the property since said property is still under the names of all the heirs of her father. Atty. Pasagui then asked for the title to make the verifications and facilitate the transferring of the title under her name considering that she has paid her siblings with their respective shares. Atty. Pasagui then told her that the transfer of the title in her name will cost about Seven Hundred Thousand Pesos (P700,000.00) or more and that the said amount would be enough because he can ask for discounts from his friend at the Bureau of Internal Revenue (BIR).
Sometime in January 2011, Atty. Pasagui told Camino that they will proceed with the sale to another buyer since Tan did not give any payment yet even after sending her the demand letter. Atty. Pasagui, however, failed to show Camino the said demand letter.
Convinced by Atty. Pasagui's assurance that she could still sell the property to another buyer, she consented to his proposition and told him that she will look for a sufficient amount of money necessary for the processing of the transfer of the title.
In the evening of February 3, 2011, Camino informed Atty. Pasagui that she already has the amount of P120,000.00 to start the processing of the transfer of title in her name. However, on the day they were supposed to meet, Atty. Pasagui failed to meet her and instead sent his mother, Susie Pasagui, to receive the P120,000.00.[3]
Thereafter, Atty. Pasagui advised Camino to apply for a loan at Perpetual Help Credit Cooperative, Inc. (PHCCI), Alang-alang, Leyte, using her residential house and lot at V & G as collateral. The proceeds thereof will then be used for the necessary expenses in transferring the title in Camino's name. He claimed that the loan can be released in one (1) week.
Thus, Camino and her husband, Perpetuo P. Camino, executed a Special Power of Attorney (SPA)[4] in favor of respondent Atty. Pasagui, authorizing the latter to obtain a loan in their behalf with PHCCI to be secured by their own property covered by TCT No. T-35197.[5]
A month after, Camino went to Atty. Pasagui's house to inquire about the status of the loan application. She was then told that the application was still in process and the maximum loanable amount was only Seven Hundred Thousand Pesos (P700,000.00) and that the release will be on a staggered basis.
Doubtful, Camino personally went to PHCCI and asked for the copy of his loan application. Upon securing a copy of the application, Camino discovered that the loan was already approved and that the proceeds thereof amounting to One Million Pesos (P1,000,000.00) was released on February 15, 2011.
Sometime in April 2011, Atty. Pasagui, together with his parents invited complainant and her son, Francis Peter Camino, to the pension house where Tan was staying. At that time, Camino have yet to confront Atty. Pasagui about her discovery that he already collected the loan proceeds from PHCCI as she was hoping that he would be the one to tell her himself.
On the way to the pension house, Camino recalled that Atty. Pasagui advised her to refuse payment from Tan should she attempt to hand over an amount less than Two Hundred Thousand Pesos (P200,000.00). Camino then wondered why Tan would still offer her payment of P200,000.00 when she thought that Atty. Pasagui already told her that the sale of the property will no longer push through.
When they reached the pension house, Atty. Pasagui went directly to the room of Tan and spent almost thirty minutes inside. When they got out of the room, Tan handed to her an envelope containing the amount of P150,000.00. Atty. Pasagui then gave her a signal to accept the said amount. She accepted the money from Tan who also promised her the full payment on April 28, 2011.
On April 28, 2011, Camino tried to call Atty. Pasagui to follow up on Tan's payment but he did not answer her call. Neither did Atty. Pasagui get in touch with her after their meeting.
Camino then decided to check the status of the title of the property at the Register of Deeds. She found out that Atty. Pasagui neither processed the transfer of the title in her name nor paid the necessary fees for its transfer. Camino also went to Atty. Pasagui's house to inquire about Tan's promise of payment but he was not around.
Confused, on June 6, 2011, with the assistance of a lawyer, Camino wrote Atty. Pasagui and reminded him of their agreement that he will be the one to facilitate and secure a loan with PHCCI in order to finance the payment of the necessary expenses for the transfer of the title in her name.[6] Camino mentioned that she was able to secure a printout of the loan interest worksheet and that it was reflected therein that Atty. Pasagui already received the proceeds of the loan. Camino alleged that sufficient time have elapsed already, yet, even after several inquiries and verification from the Register of Deeds and other government agencies concerned, there had been no transaction filed in connection with the transfer of the ownership of the property. Camino added that she tried to get in touch with Atty. Pasagui but the same was futile, thus, she demanded from him to account and turn-over the proceeds of the real estate loan from the PHCCI and to return back to her all pertinent documents and papers which were entrusted to him.[7]
In his Answer[8] dated June 16, 2011, Atty. Pasagui explained, to wit
Atty. Pasagui, in his Answer[10] dated September 21, 2011, admitted that he had indeed applied for a loan with PHCCI but insisted that the same was personal to him, thus, he will also be the one to personally pay for it. He further alleged that he is not under any obligation to report or account to Camino where the proceeds of the loan went because it is he, himself, Who will pay it anyway.
On October 12, 2011, the IBP-CBD notified the parties to appear before the Commission for the mandatory conference.[11]
In its Report and Recommendation[12] dated July 10, 2014, the IBP-CBD found Atty. Pasagui guilty of violating Rule 1.01 of the Code of Professional Responsibility for Lawyers which is a mandate for lawyers to desist from "dishonest, immoral or deceitful conduct." It recommended that Atty. Pasagui be reprimanded with a warning that a repetition of the same infraction will result in the imposition of a more severe penalty.
In Resolution No. XXI-2014-938[13] dated December 14, 2014, the IBP-Board of Governors resolved to adopt and approve with modification as to the penalty the Report and Recommendation of the IBP-CBD. Instead, it recommended that Atty. Pasagui be suspended from the practice of law for one (1) year for violation of Rule 1.01 of the Code of Professional Responsibility, without prejudice to the filing by the complainant of an appropriate action in court.
We sustain the findings of the IBP-CBD except as to the penalty.
A lawyer is duty-bound to observe candor, fairness and loyalty in all his dealings and transactions with his clients. The profession, therefore, demands of an attorney an absolute abdication of every personal advantage conflicting in any way, directly or indirectly, with the interest of his client. In this case, Atty. Pasagui failed to measure up to the exacting standard expected of him.[14]
Rule 1.0, Canon 1 of the Code of Professional Responsibility, provides that "[a] lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct." It is well established that a lawyer's conduct is "not confined to the performance of his professional duties. A lawyer may be disciplined for misconduct committed either in his professional or private capacity. The test is whether his conduct shows him to be wanting in moral character, honesty, probity, and good demeanor, or whether it renders him unworthy to continue as an officer of the court."[15]
Any act or omission that is contrary to, or prohibited or unauthorized by, or in defiance of, disobedient to, or disregards the law is "unlawful." "Unlawful" conduct does not necessarily imply the element of criminality although the concept is broad enough to include such element. To be "dishonest" means the disposition to lie, cheat, deceive, defraud or betray; be unworthy; lacking in integrity, honesty, probity, integrity in principle, fairness and straight-forwardness, while conduct that is "deceitful" means the proclivity for fraudulent and deceptive misrepresentation, artifice or device that is used upon another who is ignorant of the true facts, to the prejudice and damage of the party imposed upon.[16]
In the instant case, Atty. Pasagui's guilt is undisputed. Atty. Pasagui's defense that the loan was personal to him fails to convince. A perusal of the Special Power of Attorney issued by Camino and her husband to Atty. Pasagui clearly shows that the application of the loan with PHCCI was in behalf of the Caminos and that the property mortgaged was likewise the property of the latter. If it were true that it was a personal loan to him, Atty. Pasagui failed to provide an explanation as to why he used Camino's property as collateral. There was likewise no explanation as to why the Caminos would allow such set up of applying a loan for the personal benefit of Atty. Pasagui using their own property as collateral. In the absence of any agreement between the parties, as in this case, it does not make sense that the Caminos would allow their own residential property to be mortgaged in order to finance something that will not be of benefit to them. It is then plausible that the true intention of the Caminos in designating Atty. Pasagui as attorney-in-fact was for the purpose of obtaining a loan with the PHCCI to finance the expenses of the transfer of title in Camino's name. Thus, by his failure to make good of their agreement to use the proceeds of the loan for the transfer of the title in Camino's name, Atty. Pasagui not only betrayed the trust and confidence reposed upon him but he is also guilty of engaging in dishonest and deceitful conduct. The failure of Atty. Pasagui to inform Camino of the status of the transfer of title despite the release of the loan to finance the transfer of the title, is a clear indicium that he converted the money for his own use and constituted a gross violation of professional ethics and betrayal of public confidence in the legal profession.[17] He violated Canon 16 of the Code of Professional Responsibility, which states that "[a] lawyer shall hold in trust all moneys and properties of his client that may come into his possession." Furthermore:
Furthermore, Atty. Pasagui's act of propositioning himself as a lawyer of Tan and Camino who have opposing interests as one being the seller and the other one, the buyer, is deplorable. As lawyer of the buyer, Tan, he facilitated the buyer's payments to Camino, but at the same time when it seemed that he could get a higher price from another buyer, he encouraged Camino to cancel the sale in favor of Tan. Clearly, such actuations of Atty. Pasagui are tantamount to double-dealing and conflict of interest, and manifests unethical practice of law. Attorneys, like Caesar's wife, must not only keep inviolate their client's confidence, but must also avoid the appearance of treachery and double-dealing, for only then can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of justice.[19]
PENALTY
A member of the Bar may be penalized, even disbarred or suspended from his office as an attorney, for violation of the lawyer's oath and/or for breach of the ethics of the legal profession as embodied in the Code of Professional Responsibility. For the practice of law is "a profession, a form of public trust, the performance of which is entrusted to those who are qualified and who possess good moral character." The appropriate penalty for an errant lawyer depends on the exercise of sound judicial discretion based on the surrounding facts.[20]
Here, Atty. Pasagui demonstrated not just a negligent disregard of his duties as a lawyer but a wanton betrayal of the trust of his client and, in general, the public. Accordingly, the Court finds that the suspension for one (1) year recommended by the IBP-Board of Governors is not sufficient punishment for Atty. Pasagui's unacceptable acts and omissions. The acts of the respondent constitute malpractice and gross misconduct in his office as attorney. His incompetence and appalling indifference to his duty to his client, the courts and society render him unfit to continue discharging the trust reposed on him.
The Court also deems it appropriate to order the return of the moneys which respondent received as attorney-in-fact, for the purpose of facilitating the transfer of the title in the name of the complainant with the corresponding payment of legal interest as pronounced in the case of Nacar v. Gallery Frames.[21] True, in disciplinary proceedings against lawyers, the only issue is whether the officer of the court is still fit to be allowed to continue as a member of the Bar. In such cases, the Court's only concern is the determination of respondent's administrative liability; it should not involve his civil liability for moneys received from his client in a transaction separate, distinct, and not intrinsically linked to his professional engagement. However, in this case, it appeared that the Caminos entrusted the task of facilitating the transfer of the title by virtue of respondent's legal expertise. The receipt of the moneys was not by virtue of a personal transaction between the complainant and respondent. After all, if a person, in respect to business affairs or troubles of any kind, consults a lawyer with a view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces with the consultation, as in this case, then the professional employment is established.[22] Once lawyers agree to take up the cause of a client, they owe fidelity to such cause and must always be mindful of the trust and confidence reposed in them.[23]
WHEREFORE, Resolution No. XXI-2014-938 dated December 14, 2014 of the IBP-Board of Governors which found respondent Atty. Ryan Rey L. Pasagui GUILTY of violation of Rule 1.01 of the Code of Professional Responsibility is AFFIRMED with MODIFICATION as to the penalty. Respondent Atty. Ryan Rey L. Pasagui is instead meted the penalty of DISBARMENT. Respondent is further ORDERED to immediately RETURN the loan proceeds amounting to P1,000,000.00 and to pay legal interest at the rate of twelve percent (12%) per annum computed from the release of the loan on February 15, 2011 up to June 30, 2013, and six percent (6%) per annum from July 1, 2013 until fully paid, as well as, the P120,000.00 received for the purpose of transferring the title in the name of the complainant and to pay legal interest at the rate of twelve percent (12%) per annum computed from receipt of the amount on February 3, 2011 up to June 30, 2013, and six percent (6%) per annum from July 1, 2013 until fully paid. He is likewise ORDERED to RETURN all other documents pertinent to the loan obtained from PHCCI and those received from complainant.
Let a copy of this Decision be furnished to the Office of the Bar Confidant, to be appended to the personal record of respondent; the Integrated Bar of the Philippines; and the Office of the Court Administrator for circulation to all courts in the country for their information and guidance.
This Decision shall be immediately executory.
SO ORDERED.
Sereno, C. J., Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Perez, Mendoza, Reyes, Perlas-Bernabe, Leonen, Jardeleza, and Caguioa, JJ., concur.
Carpio, J., on official leave.
Sirs/Mesdames:
Please take notice that on September 20, 2016 a Decision/Resolution, copy attached herewith, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on October 21, 2016 at 1:25 p.m.
[1] Rollo, pp. 2-7.
[2] Id. at 59.
[3] Id. at 8.
[4] Id. at 9-10.
[5] Id. at 12-13.
[6] Id. at 15.
[7] Id.
[8] Id. at 16.
[9] Id. at 39.
[10] Id. at 51-57.
[11] Id. at 166.
[12] Id. at 238-239.
[13] Id. at 236-237.
[14] Barnachea v. Atty. Quiocho, 447 Phil. 67, 75 (2003).
[15] Navarro, et al., v. Atty. Solidum, Jr., 725 Phil. 358, 367 (2014), citing Roa v. Moreno, 633 Phil. 1, 7 (2010).
[16] Jimenez v. Francisco, A.C. No. 10548, December 10, 2014, 744 SCRA 215, 230.
[17] Villanueva v. Atty. Gonzales, 568 Phil. 379, 386 (2008).
[18] Belleza v. Atty. Macasa, 611 Phil. 179, 190 (2009), citing In re Nueno, 48 Phil. 178 (1948).
[19] Suntay v. Atty. Suntay, 435 Phil. 482, 492-493 (2002).
[20] Jimenez v. Atty. Francisco, A.C. No. 10548 , December 10, 2014, 744 SCRA 215, 240.
[21] 716 Phil. 267 (2013).
[22] Hilado v. David, 84 Phil. 569, 576 (1949).
[23] Aromin v. Atty. Boncavil, 373 Phil. 612, 618 (1999).
The facts are as follows:
Complainant Eufemia A. Camino (Camino) is the vendor of a lot covered by Transfer Certificate of Title (TCT) No. T-70247,[2] still registered under the name of the Heirs of Camino's father. Respondent Atty. Ryan Rey L. Pasagui (Atty. Pasagui) was allegedly the lawyer of Congresswoman Mila Tan (Tan) who was in charge of handling the payments for the property which Camino sold to Tan in 2010. Camino narrated that sometime after the election, Atty. Pasagui offered her Tan's payment in the amount of Thirty Thousand Pesos (P30,000.00). However, Camino refused to accept the same as she wanted to have the payment in full and added that she also returned to Atty. Pasagui the postdated check amounting to Two Million Pesos (P2,000,000.00) which Tan previously issued.
Atty. Pasagui then advised her to this effect, "maupay ngani na war ay mo karawta, kay magrerecall man ngani diri ka na mababaydan kay war ay na hi Congresswoman Mila Tan kwarta. Pamiling nala hin iba na buyer ibabalik nato it kwarta ha iya ngan maghihimo nala ako hin demand letter na kinahanglan na maimpasan kay kun diri makahatag, ibabalik nala an iya nahatag" (Good that you did not accept it because there will be a recall and Congresswoman Mila would not have enough money to pay you. Look for another buyer and we'll return her money. I will prepare a demand letter that she must pay you or else you will just pay her back the amount she has paid). Camino further alleged that Atty. Pasagui assured her that he will take care of everything and encouraged her to look for another buyer and advised her to set its price at Seven Million Pesos (Php7,000,000.00).
Few weeks after, Camino informed Atty. Pasagui that she has a buyer but the latter wanted to have a clean title of the property since said property is still under the names of all the heirs of her father. Atty. Pasagui then asked for the title to make the verifications and facilitate the transferring of the title under her name considering that she has paid her siblings with their respective shares. Atty. Pasagui then told her that the transfer of the title in her name will cost about Seven Hundred Thousand Pesos (P700,000.00) or more and that the said amount would be enough because he can ask for discounts from his friend at the Bureau of Internal Revenue (BIR).
Sometime in January 2011, Atty. Pasagui told Camino that they will proceed with the sale to another buyer since Tan did not give any payment yet even after sending her the demand letter. Atty. Pasagui, however, failed to show Camino the said demand letter.
Convinced by Atty. Pasagui's assurance that she could still sell the property to another buyer, she consented to his proposition and told him that she will look for a sufficient amount of money necessary for the processing of the transfer of the title.
In the evening of February 3, 2011, Camino informed Atty. Pasagui that she already has the amount of P120,000.00 to start the processing of the transfer of title in her name. However, on the day they were supposed to meet, Atty. Pasagui failed to meet her and instead sent his mother, Susie Pasagui, to receive the P120,000.00.[3]
Thereafter, Atty. Pasagui advised Camino to apply for a loan at Perpetual Help Credit Cooperative, Inc. (PHCCI), Alang-alang, Leyte, using her residential house and lot at V & G as collateral. The proceeds thereof will then be used for the necessary expenses in transferring the title in Camino's name. He claimed that the loan can be released in one (1) week.
Thus, Camino and her husband, Perpetuo P. Camino, executed a Special Power of Attorney (SPA)[4] in favor of respondent Atty. Pasagui, authorizing the latter to obtain a loan in their behalf with PHCCI to be secured by their own property covered by TCT No. T-35197.[5]
A month after, Camino went to Atty. Pasagui's house to inquire about the status of the loan application. She was then told that the application was still in process and the maximum loanable amount was only Seven Hundred Thousand Pesos (P700,000.00) and that the release will be on a staggered basis.
Doubtful, Camino personally went to PHCCI and asked for the copy of his loan application. Upon securing a copy of the application, Camino discovered that the loan was already approved and that the proceeds thereof amounting to One Million Pesos (P1,000,000.00) was released on February 15, 2011.
Sometime in April 2011, Atty. Pasagui, together with his parents invited complainant and her son, Francis Peter Camino, to the pension house where Tan was staying. At that time, Camino have yet to confront Atty. Pasagui about her discovery that he already collected the loan proceeds from PHCCI as she was hoping that he would be the one to tell her himself.
On the way to the pension house, Camino recalled that Atty. Pasagui advised her to refuse payment from Tan should she attempt to hand over an amount less than Two Hundred Thousand Pesos (P200,000.00). Camino then wondered why Tan would still offer her payment of P200,000.00 when she thought that Atty. Pasagui already told her that the sale of the property will no longer push through.
When they reached the pension house, Atty. Pasagui went directly to the room of Tan and spent almost thirty minutes inside. When they got out of the room, Tan handed to her an envelope containing the amount of P150,000.00. Atty. Pasagui then gave her a signal to accept the said amount. She accepted the money from Tan who also promised her the full payment on April 28, 2011.
On April 28, 2011, Camino tried to call Atty. Pasagui to follow up on Tan's payment but he did not answer her call. Neither did Atty. Pasagui get in touch with her after their meeting.
Camino then decided to check the status of the title of the property at the Register of Deeds. She found out that Atty. Pasagui neither processed the transfer of the title in her name nor paid the necessary fees for its transfer. Camino also went to Atty. Pasagui's house to inquire about Tan's promise of payment but he was not around.
Confused, on June 6, 2011, with the assistance of a lawyer, Camino wrote Atty. Pasagui and reminded him of their agreement that he will be the one to facilitate and secure a loan with PHCCI in order to finance the payment of the necessary expenses for the transfer of the title in her name.[6] Camino mentioned that she was able to secure a printout of the loan interest worksheet and that it was reflected therein that Atty. Pasagui already received the proceeds of the loan. Camino alleged that sufficient time have elapsed already, yet, even after several inquiries and verification from the Register of Deeds and other government agencies concerned, there had been no transaction filed in connection with the transfer of the ownership of the property. Camino added that she tried to get in touch with Atty. Pasagui but the same was futile, thus, she demanded from him to account and turn-over the proceeds of the real estate loan from the PHCCI and to return back to her all pertinent documents and papers which were entrusted to him.[7]
In his Answer[8] dated June 16, 2011, Atty. Pasagui explained, to wit
As of the moment, however, the undersigned is already facilitating for the release of your documents from Perpetual Help Credit Cooperative, Inc., Alang-alang Branch, Alang-alang, Leyte. As to your pertinent documents relative to Transfer Certificate of Title No. T-70247, the same is not within my possession as those documents are in the possession of the person who bought the same real properly way back in the year 2009.On August 12, 2011, the IBP-CBD ordered Atty. Pasagui to submit his Answer to the complaint.[9]
Atty. Pasagui, in his Answer[10] dated September 21, 2011, admitted that he had indeed applied for a loan with PHCCI but insisted that the same was personal to him, thus, he will also be the one to personally pay for it. He further alleged that he is not under any obligation to report or account to Camino where the proceeds of the loan went because it is he, himself, Who will pay it anyway.
On October 12, 2011, the IBP-CBD notified the parties to appear before the Commission for the mandatory conference.[11]
In its Report and Recommendation[12] dated July 10, 2014, the IBP-CBD found Atty. Pasagui guilty of violating Rule 1.01 of the Code of Professional Responsibility for Lawyers which is a mandate for lawyers to desist from "dishonest, immoral or deceitful conduct." It recommended that Atty. Pasagui be reprimanded with a warning that a repetition of the same infraction will result in the imposition of a more severe penalty.
In Resolution No. XXI-2014-938[13] dated December 14, 2014, the IBP-Board of Governors resolved to adopt and approve with modification as to the penalty the Report and Recommendation of the IBP-CBD. Instead, it recommended that Atty. Pasagui be suspended from the practice of law for one (1) year for violation of Rule 1.01 of the Code of Professional Responsibility, without prejudice to the filing by the complainant of an appropriate action in court.
We sustain the findings of the IBP-CBD except as to the penalty.
A lawyer is duty-bound to observe candor, fairness and loyalty in all his dealings and transactions with his clients. The profession, therefore, demands of an attorney an absolute abdication of every personal advantage conflicting in any way, directly or indirectly, with the interest of his client. In this case, Atty. Pasagui failed to measure up to the exacting standard expected of him.[14]
Rule 1.0, Canon 1 of the Code of Professional Responsibility, provides that "[a] lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct." It is well established that a lawyer's conduct is "not confined to the performance of his professional duties. A lawyer may be disciplined for misconduct committed either in his professional or private capacity. The test is whether his conduct shows him to be wanting in moral character, honesty, probity, and good demeanor, or whether it renders him unworthy to continue as an officer of the court."[15]
Any act or omission that is contrary to, or prohibited or unauthorized by, or in defiance of, disobedient to, or disregards the law is "unlawful." "Unlawful" conduct does not necessarily imply the element of criminality although the concept is broad enough to include such element. To be "dishonest" means the disposition to lie, cheat, deceive, defraud or betray; be unworthy; lacking in integrity, honesty, probity, integrity in principle, fairness and straight-forwardness, while conduct that is "deceitful" means the proclivity for fraudulent and deceptive misrepresentation, artifice or device that is used upon another who is ignorant of the true facts, to the prejudice and damage of the party imposed upon.[16]
In the instant case, Atty. Pasagui's guilt is undisputed. Atty. Pasagui's defense that the loan was personal to him fails to convince. A perusal of the Special Power of Attorney issued by Camino and her husband to Atty. Pasagui clearly shows that the application of the loan with PHCCI was in behalf of the Caminos and that the property mortgaged was likewise the property of the latter. If it were true that it was a personal loan to him, Atty. Pasagui failed to provide an explanation as to why he used Camino's property as collateral. There was likewise no explanation as to why the Caminos would allow such set up of applying a loan for the personal benefit of Atty. Pasagui using their own property as collateral. In the absence of any agreement between the parties, as in this case, it does not make sense that the Caminos would allow their own residential property to be mortgaged in order to finance something that will not be of benefit to them. It is then plausible that the true intention of the Caminos in designating Atty. Pasagui as attorney-in-fact was for the purpose of obtaining a loan with the PHCCI to finance the expenses of the transfer of title in Camino's name. Thus, by his failure to make good of their agreement to use the proceeds of the loan for the transfer of the title in Camino's name, Atty. Pasagui not only betrayed the trust and confidence reposed upon him but he is also guilty of engaging in dishonest and deceitful conduct. The failure of Atty. Pasagui to inform Camino of the status of the transfer of title despite the release of the loan to finance the transfer of the title, is a clear indicium that he converted the money for his own use and constituted a gross violation of professional ethics and betrayal of public confidence in the legal profession.[17] He violated Canon 16 of the Code of Professional Responsibility, which states that "[a] lawyer shall hold in trust all moneys and properties of his client that may come into his possession." Furthermore:
Rule 16.01. A lawyer shall account for all money or property collected or received for or from the client.A lawyer, under his oath, pledges himself not to delay any man for money or malice and is bound to conduct himself with all good fidelity to his clients. He is obligated to report promptly the money of his client that has come into his possession. He should not commingle it with his private property or use it for his personal purposes without his client's consent. When a lawyer collects or receives money from his client for a particular purpose (such as for filing fees, registration fees, transportation and office expenses), he should promptly account to the client how the money was spent. If he does not use the money for its intended purpose, he must immediately return it to the client.[18] Respondent, by converting the money of his client to his own personal use without her consent, was guilty of deceit, malpractice and gross misconduct. Not only did he degrade himself but as an unfaithful lawyer he besmirched the fair name of an honorable profession.
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. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court.
Furthermore, Atty. Pasagui's act of propositioning himself as a lawyer of Tan and Camino who have opposing interests as one being the seller and the other one, the buyer, is deplorable. As lawyer of the buyer, Tan, he facilitated the buyer's payments to Camino, but at the same time when it seemed that he could get a higher price from another buyer, he encouraged Camino to cancel the sale in favor of Tan. Clearly, such actuations of Atty. Pasagui are tantamount to double-dealing and conflict of interest, and manifests unethical practice of law. Attorneys, like Caesar's wife, must not only keep inviolate their client's confidence, but must also avoid the appearance of treachery and double-dealing, for only then can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of justice.[19]
A member of the Bar may be penalized, even disbarred or suspended from his office as an attorney, for violation of the lawyer's oath and/or for breach of the ethics of the legal profession as embodied in the Code of Professional Responsibility. For the practice of law is "a profession, a form of public trust, the performance of which is entrusted to those who are qualified and who possess good moral character." The appropriate penalty for an errant lawyer depends on the exercise of sound judicial discretion based on the surrounding facts.[20]
Here, Atty. Pasagui demonstrated not just a negligent disregard of his duties as a lawyer but a wanton betrayal of the trust of his client and, in general, the public. Accordingly, the Court finds that the suspension for one (1) year recommended by the IBP-Board of Governors is not sufficient punishment for Atty. Pasagui's unacceptable acts and omissions. The acts of the respondent constitute malpractice and gross misconduct in his office as attorney. His incompetence and appalling indifference to his duty to his client, the courts and society render him unfit to continue discharging the trust reposed on him.
The Court also deems it appropriate to order the return of the moneys which respondent received as attorney-in-fact, for the purpose of facilitating the transfer of the title in the name of the complainant with the corresponding payment of legal interest as pronounced in the case of Nacar v. Gallery Frames.[21] True, in disciplinary proceedings against lawyers, the only issue is whether the officer of the court is still fit to be allowed to continue as a member of the Bar. In such cases, the Court's only concern is the determination of respondent's administrative liability; it should not involve his civil liability for moneys received from his client in a transaction separate, distinct, and not intrinsically linked to his professional engagement. However, in this case, it appeared that the Caminos entrusted the task of facilitating the transfer of the title by virtue of respondent's legal expertise. The receipt of the moneys was not by virtue of a personal transaction between the complainant and respondent. After all, if a person, in respect to business affairs or troubles of any kind, consults a lawyer with a view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces with the consultation, as in this case, then the professional employment is established.[22] Once lawyers agree to take up the cause of a client, they owe fidelity to such cause and must always be mindful of the trust and confidence reposed in them.[23]
WHEREFORE, Resolution No. XXI-2014-938 dated December 14, 2014 of the IBP-Board of Governors which found respondent Atty. Ryan Rey L. Pasagui GUILTY of violation of Rule 1.01 of the Code of Professional Responsibility is AFFIRMED with MODIFICATION as to the penalty. Respondent Atty. Ryan Rey L. Pasagui is instead meted the penalty of DISBARMENT. Respondent is further ORDERED to immediately RETURN the loan proceeds amounting to P1,000,000.00 and to pay legal interest at the rate of twelve percent (12%) per annum computed from the release of the loan on February 15, 2011 up to June 30, 2013, and six percent (6%) per annum from July 1, 2013 until fully paid, as well as, the P120,000.00 received for the purpose of transferring the title in the name of the complainant and to pay legal interest at the rate of twelve percent (12%) per annum computed from receipt of the amount on February 3, 2011 up to June 30, 2013, and six percent (6%) per annum from July 1, 2013 until fully paid. He is likewise ORDERED to RETURN all other documents pertinent to the loan obtained from PHCCI and those received from complainant.
Let a copy of this Decision be furnished to the Office of the Bar Confidant, to be appended to the personal record of respondent; the Integrated Bar of the Philippines; and the Office of the Court Administrator for circulation to all courts in the country for their information and guidance.
This Decision shall be immediately executory.
SO ORDERED.
Sereno, C. J., Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Perez, Mendoza, Reyes, Perlas-Bernabe, Leonen, Jardeleza, and Caguioa, JJ., concur.
Carpio, J., on official leave.
NOTICE OF JUDGMENT
Sirs/Mesdames:
Please take notice that on September 20, 2016 a Decision/Resolution, copy attached herewith, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on October 21, 2016 at 1:25 p.m.
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| Very truly yours, |
(SGD) |
|
FELIPA G. BORLONGAN-ANAMA | |
Clerk of Court |
[1] Rollo, pp. 2-7.
[2] Id. at 59.
[3] Id. at 8.
[4] Id. at 9-10.
[5] Id. at 12-13.
[6] Id. at 15.
[7] Id.
[8] Id. at 16.
[9] Id. at 39.
[10] Id. at 51-57.
[11] Id. at 166.
[12] Id. at 238-239.
[13] Id. at 236-237.
[14] Barnachea v. Atty. Quiocho, 447 Phil. 67, 75 (2003).
[15] Navarro, et al., v. Atty. Solidum, Jr., 725 Phil. 358, 367 (2014), citing Roa v. Moreno, 633 Phil. 1, 7 (2010).
[16] Jimenez v. Francisco, A.C. No. 10548, December 10, 2014, 744 SCRA 215, 230.
[17] Villanueva v. Atty. Gonzales, 568 Phil. 379, 386 (2008).
[18] Belleza v. Atty. Macasa, 611 Phil. 179, 190 (2009), citing In re Nueno, 48 Phil. 178 (1948).
[19] Suntay v. Atty. Suntay, 435 Phil. 482, 492-493 (2002).
[20] Jimenez v. Atty. Francisco, A.C. No. 10548 , December 10, 2014, 744 SCRA 215, 240.
[21] 716 Phil. 267 (2013).
[22] Hilado v. David, 84 Phil. 569, 576 (1949).
[23] Aromin v. Atty. Boncavil, 373 Phil. 612, 618 (1999).