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Undertaking legal services; collaborating counsel, C4S2 CPRA

Section 2, Canon IV

SECTION 2. Undertaking legal services; collaborating counsel. – A lawyer shall only undertake legal services he or she can deliver.
With the prior written consent of the client, a lawyer may secure the services of a collaborating counsel. (2023 Code of Professional Responsibility and Accountability or CPRA)

1. Undertaking legal services; collaborating counsel

a. Undertaking legal services

Under this section, lawyers are required to “only undertake legal services he or she can deliver.”

BASECO v. Consunji, En Banc, A.C. No. 11439, January 04, 2022, Per Curiam:

• From the foregoing, it is evident that Atty. Consunji was remiss in fulfilling his obligation to his client. The affidavit of Maligalig stating that Atty. Consunji was able to prepare substantial preparatory works is self-serving. If indeed Atty. Consunji was able to make substantial preparatory works, he should have presented these works/documents to the IBP or the Court. Had he really done substantial work for the processing of the titles, he could have submitted documentary or object evidence to support his claim. There was no showing of what substantial preparatory works were done and what specific actions were taken by Atty. Consunji to fulfill his legal obligation. He does not deny having received the legal fees in relation to the engagements. Thus, it is incumbent upon him to prove that he has duly complied with his obligation or that he has substantially performed tasks to fulfill the same but was prevented from completing it for reasons not attributable to him. However, Atty. Consunji failed to prove that he did his professional duties properly and meticulously.

• The act of receiving money as acceptance fee for legal services in handling complainant’s case and subsequently failing to render such services is a clear violation of Canon 18 of [the old CPR] which provides that a lawyer shall serve his client with competence and diligence. A member of the legal profession owes his client entire devotion to his genuine interest, warm zeal in the maintenance and defense of his rights. An attorney is expected to exert his best efforts and ability to preserve his client’s cause, for the unwavering loyalty displayed to his client likewise serves the ends of justice. Verily, the entrusted privilege to practice law carries with it the corresponding duties, not only to the client, but also to the court, to the bar and to the public.

1) Qualifications

Baldado v. Mejica, A.C. No. 9120, March 11, 2013, Per Peralta, J.:

• Complainant Augusto P. Baldado was a former member of the Sangguniang Bayan of the Municipality of Sulat, Eastern Samar. He ran and won in the 2004 National and Local Elections.

• Florentino C. Nival, a losing candidate during the said elections, filed a Petition for Quo Warranto with the Regional Trial Court (RTC) of Borongan, Eastern Samar against complainant, questioning his qualifications as a candidate, as he was allegedly an American citizen. The case was docketed as Civil Case No. 3900 and assigned to the RTC of Borongan, Eastern Samar, Branch 2 (trial court).

• Complainant hired the legal services of respondent for the said case.

• Respondent filed an Answer, and later filed a motion to dismiss on the ground of lack of jurisdiction of the trial court over the case due to the failure of Florentino C. Nival to pay the appropriate filing or docket fee.

• The trial court denied the motion to dismiss on the ground that the motion is proscribed after the filing of an Answer, as provided in Section 1, Rule 16 of the 1997 Rules of Civil Procedure.

• Respondent filed a motion for reconsideration from the denial of the motion to dismiss. In a Resolution1 dated January 14, 2005, the trial court denied the motion on the ground that there was no notice of hearing pursuant to Sections 4, 5 and 6, Rule 15 of the 1997 Rules of Civil Procedure.

• Respondent filed a second motion for reconsideration, which was denied by the trial court in a Resolution dated April 29, 2005, for being a prohibited pleading under Section 2, Rule 52 of the 1997 Rules of Civil Procedure.

• On May 6, 2005, the trial court rendered a Decision,2 directing the issuance of a Writ of Quo Warranto ousting complainant Augusto P. Baldado from the Office of the Sangguniang Bayan of the Municipality of Sulat, Eastern Samar, and declaring vacant the position of complainant as Sangguniang Bayan member.3 The trial court stated that when complainant, formerly an American citizen, reacquired his Philippine citizenship on September 29, 2003, he also reacquired his residency in the Philippines on September 29, 2003, short of the required one-year period immediately preceding the election. Hence, the trial court held that complainant was not eligible to register as a candidate for the Office of the Sangguniang Bayan of Sulat, Eastern Samar during the May 2004 elections.

• On May 19, 2005, respondent received a copy of the Decision of the trial court, and he had a period of five days within which to appeal the trial court’s Decision to the Commission on Elections (COMELEC).

• On May 21, 2005, complainant and his wife, having obtained their own copy of the trial court’s Decision, proceeded hurriedly to respondent and urged him to immediately file a notice of appeal from the said decision.

• Respondent did not heed the prodding of complainant to file a Notice of Appeal, because according to respondent, the notice of the decision could not be deemed to have been officially received by him as the said decision had not yet been promulgated in open court; hence, the prescriptive period to appeal would not toll yet.

• On May 26, 2005,4 respondent filed with the COMELEC a Petition for Certiorari and Prohibition with prayer for restraining order and/or injunction to annul or set aside the trial court’s Resolutions dated January 14, 2005 and April 9, 2005, denying the motions for reconsideration of the trial court’s Resolution dated November 10, 2004, denying the motion to dismiss the quo warranto case. Respondent did not appeal from the trial court’s Decision dated May 6, 2005.

• On May 16, 2006, the First Division of the COMELEC issued a Resolution dismissing the petition for certiorari for lack of merit. It held that the correct filing fees had been paid by petitioner Florentino P. Nival, as evidenced by the Legal Fees Form, which barred complainant from assailing the jurisdiction of the trial court. The COMELEC declared that complainant’s petition was moot and academic with the rendition of the trial court’s Decision in the quo warranto case. It stated that as the trial court had acquired jurisdiction over the case, the remedy of complainant should have been to appeal the trial court’s Decision under Section 14, Rule 36 of the COMELEC Rules of Procedure, which provides that from any decision rendered by the court, the aggrieved party may appeal to the COMELEC within five days after the promulgation of the decision. On the other hand, certiorari, under Section 1, Rule 28 of the COMELEC Rules of Procedure, is allowed only when there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. The COMELEC stated that petitioner lost his opportunity to appeal granted by law.

• Florentino Nival filed a motion for execution in the quo warranto case, which was granted by the trial court. On July 11, 2005, complainant was removed from his office as member of the Sangguniang Bayan of the Municipality of Sulat, Eastern Samar.

• Complainant hired a new counsel, who filed a motion for reconsideration of the Resolution of the First Division of the COMELEC, dated May 16, 2006. However, the motion for reconsideration was denied for lack of merit by the COMELEC en banc in a Resolution dated June 21, 2007.

• On July 17, 2006, complainant filed this administrative case against respondent. Complainant contended that in handling his case, respondent committed these serious errors: (1) Respondent improperly filed a Motion to Dismiss after he had filed his Answer, allegedly due to lack of jurisdiction for failure of therein petitioner Florentino C. Nival to pay the correct docket fees, but the trial court denied said motion because a motion to dismiss is proscribed after filing an Answer; (2) Respondent filed a Motion for Reconsideration from the denial of his Motion to Dismiss which was denied for failure to attach the Notice of Hearing; (3) respondent filed a second motion for reconsideration, which was again denied on the ground that it was a prohibited pleading; and (4) Respondent refused to file a Notice of Appeal from the Decision of the trial court on the Petition for Quo Warranto without justification despite the advice and insistence of complainant, and instead filed a petition for certiorari before the COMELEC, assailing the trial court’s Resolutions dated January 14, 2005 and April 29, 2005 denying the motions for reconsideration of the denial of the motion to dismiss the quo warranto case.

• Complainant contended that respondent’s mishandling of his case amounted to gross incompetence and gross negligence in rendering service to his client, as well as gross ignorance of the law, in violation of Canon 17 and Canon 18: Rules 18.01, 18.02 and 18.03 of [the old Code of Professional Responsibility] for which respondent should be disbarred or suspended from legal practice. Complainant stated that respondent’s failure to render legal service, in accordance with the Code of Professional Responsibility, caused him (complainant) to lose in the quo warranto case, which resulted in his removal from his office, and made him suffer grave and irreparable damage, mental anguish, wounded feelings and social humiliation.

• In his Position Paper, respondent explained that a Motion to Dismiss was filed after the Answer was filed, because he found out days after filing the Answer that Florentino C. Nival failed to pay the filing fee amounting to ₱300.00. Respondent claimed that the trial court failed to understand that Section 1, Rule 16 (Motion to Dismiss) of the Rules of Court is the general rule, while the exceptions are found in Section 1, Rule 9 of the Rules of Court, which provides that lack of jurisdiction over the subject matter, among others, is a defense that is not deemed waived even if it is not pleaded in a motion to dismiss or in the answer.

• Respondent stated that he failed to place a notice of hearing in his motion for reconsideration (of the denial of his motion to dismiss) due to inadvertence. However, he contended that since the adverse party submitted an Opposition to the Motion for Reconsideration, it is sufficient proof that petitioner was given the opportunity to be heard; hence, the dismissal of the motion for reconsideration due to the absence of notice of hearing was improper.

• Moreover, respondent asserted that the alleged omission or negligence regarding the failure to file an appeal from the trial court’s Decision was neither induced by bad faith nor malice, but founded on good faith and a well-researched legal opinion that the five-day period within which to file a notice of appeal did not commence due to the failure of the trial court to promulgate its decision, as required under Section 12, Rule 36 of the COMELEC Rules of Procedure.

• From the foregoing, herein respondent should have filed an appeal from the Decision of the trial court within five days from receipt of a copy of the decision on May 19, 2005.

• As regards the filing of the motion to dismiss after filing an Answer, Panganiban v. Pilipinas Shell Petroleum Corporation held that the requirement that a motion to dismiss should be filed within the time for filing the answer is not absolute. Even after an answer has been filed, a defendant can still file a motion to dismiss on the following grounds: (1) lack of jurisdiction, (2) litis pendentia (3) lack of cause of action, and (4) discovery during trial of evidence that would constitute a ground for dismissal.17 In this case, respondent sought the dismissal of the quo warranto case on the ground of lack of jurisdiction. Even if the trial court denied the motion to dismiss, respondent could still have raised the alleged lack of jurisdiction of the trial court in the appeal of the trial court’s decision to the COMELEC; however, no such appeal was filed.

• Hence, respondent’s negligence in protecting the interest of his client was the failure to appeal the trial court’s decision in the quo warranto case before the COMELEC.

• The Court notes that this is the first case respondent handled after he passed the bar examinations in September 2003, took his oath and signed the roll of attorneys. Respondent prays for compassionate justice as he is the only breadwinner in the family. In Tolentino v. Mangapit, the Court took into consideration the fact that the omission committed by respondent counsel therein to inform her client and the latter’s other lawyers of the adverse decision may be traced to her inexperience, as the case and decision was the first she handled after passing the bar, and she acted under an honest mistake in the exercise of her duty as a lawyer. Thus, in Tolentino, the Court merely admonished the respondent instead of suspending her from the practice of law for at least a month, as recommended by the Solicitor General. In this case, suspending respondent from the practice of law for three months is proper.

b. Collaborating counsel

Lead counsel – is “the lawyer on either side of a litigated action who is charged with the principal management and direction of the party’s case, as distinguished from his collaborating counsels or subordinates.” (Santos v. Lacurom, A.M. No. RTJ-04-1823, August 28, 2006, Per Carpio, J.)

Lawyers who intend to secure the service of a collaborating counsel should first obtain a “prior written consent of the client.”

1) Presumption in favor of authority of collaborating counsel

The case of Ong Ching v. Ramolete, is on all fours with the instant controversy. The trial court therein held that the period to appeal had already lapsed rendering the assailed decision final and executory because petitioner’s motion for reconsideration, though presented within the reglementary period, is without legal effect having been filed by a lawyer other than petitioner’s counsel of record. It disregarded petitioner’s written authorization belatedly filed by said new lawyer as the same was not appended to the motion for reconsideration previously filed. In debunking the ruling of the trial court, we stressed that the new counsel who filed the motion for reconsideration in behalf of the client is presumed to be authorized even if he filed no formal notice of entry of appearance. Hence, said motion effectively tolled the running of the period to appeal. (Landbank of the Philippines v. Pamintuan Development Co., G.R. No. 167886, October 25, 2005, Per Ynares-Santiago, J., citing Ong Ching v. Ramolete, En Banc, G.R. No. L-35356, May 18, 1973)

Ong Ching v. Ramolete, En Banc, G.R. No. L-35356, May 18, 1973, Per Antonio, J.:

• Here petitioner’s counsel, Atty. Vasquez, not only affirmed his continued connection with the case, but also explained Atty. Hermosisima’s appearance as collaborating counsel. While it may be desirable in the interest of an orderly conduct of judicial proceedings, that a counsel for a party should file with the court his formal written appearance in the case, before filing a pleading therein, or mention in said pleading that he is submitting the same in collaboration with the counsel of record, the mere circumstance that such acts were not done does not warrant the conclusion that the pleading filed by such counsel has no legal effect whatsoever.

Sublay v. NLRC, G.R. No. 130104, January 31, 2000, Per Bellosillo, J.:

• Although working merely as a collaborating counsel who entered his appearance for petitioner as early as May 1996, i.e., more or less six (6) months before the termination of the proceedings a quo, Atty. Alikpala had the bounden duty to monitor the progress of the case. A lawyer has the responsibility of monitoring and keeping track of the period of time left to file an appeal. He cannot rely on the courts to appraise him of the developments in his case and warn him against any possible procedural blunder. Knowing that the lead counsel was no longer participating actively in the trial of the case several months before its resolution, Atty. Alikpala who alone was left to defend petitioner should have put himself on guard and thus anticipated the release of the Labor Arbiter’s decision. Petitioner’s lead counsel might have been negligent but she was never really deprived of proper representation. This fact alone militates against the grant of this petition.

• Once again we remind the members of the legal profession that every case they handle deserves their full and undivided attention, diligence, skill and competence, regardless of its importance and whether they accept it for a fee or for free keeping in mind that not only the property but also the life and liberty of their clients may be at stake.

References

Canon IV, 2023 Code of Professional Responsibility

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