SOLEDAD NUÑEZ VS. ATTY. ROMULO RICAFORT A.C. NO. 5054. MAY 29, 2002

Facts: Sometime in October 1982 petitioner authorized respondent attorney to sell her two parcels of land located in Legazpi City for P40,000. She agreed to give respondent 10 percent of the price as commission. Respondent succeeded in selling the lots, but despite complainant’s repeated demands, he did not turn over to her the proceeds of the sale. This forced complainant to file against respondent and his wife an action for a sum of money before the Regional Trial Court of Quezon City. Respondent was declared in default and judgment was rendered in favor of petitioner. Respondent appealed said decision to the Court of Appeals but the same was dismissed for failure to pay the docket fee within the required period. A writ of execution was issued, it appeared however that only a partial amount has been paid by the lawyer. Four postdated checks were subsequently issued to cover the balance. Said checks however, upon presentment were dishonored because the account against which they were drawn was closed. Demands to make good the checks were to no avail so a case for violation of BP 22 was filed by petitioner. The lawyer denied the allegations and filed several motions for extension of time to file comment. Complainant filed a motion to cite lawyer for contempt for his alleged delaying tactics unbecoming of a lawyer and a law dean.

Issue: What is the liability of the lawyer?

Held: Atty. Romulo Ricafort is guilty of grave misconduct in his dealings with complainant. Rule 1:01 of Canon 1 of the Code of Professional Responsibility which provides that “A lawyer shall not engage in unlawful, dishonest and immoral or deceitful conduct”. Respondent had no intention to “honor” the money judgment against him in as can be gleaned from his (1) issuance of postdated checks; (2) closing of the account against which said checks were drawn; and (3) continued failure to make good the amounts of the checks.

JONAR SANTIAGO vs. ATTY. EDISON V. RAFANANA.C. No. 6252, October 5, 2004

PANGANIBAN, J.:

FACTS:Complainant Jonar Santiago, an employee of the Bureau of Jail Management and Penology,

lodged a disbarment complaint against respondent Atty. Edison Rafanan before the Integrated Bar of the Philippines alleging, inter alia, that Atty. Rafanan violated Rule 12.07 and Rule 12.08 of Canon 12 of the Code of Professional Responsibility when the latter executed an affidavit in favour of his client and offered the same as evidence in a case where he is actively representing his client. The complaint also alleged that after the hearing of the case, respondent accompanied by several persons waited for Complainant and after confronting the latter disarmed him of his sidearm and thereafter uttered insulting words and veiled threats.

In his answer, respondent denied having disarmed the complainant and uttered insulting words nor veiled threats against the latter. He however admitted that he executed an affidavit in favour of his client and offered the same as evidence in a case where he is actively representing his client but interposed the defense that lawyers could testify on behalf of their clients "on substantial matters, in

cases where [their] testimony is essential to the ends of justice." Complainant charged respondent’s clients with attempted murder. Respondent averred that since they were in his house when the alleged crime occurred, "his testimony is very essential to the ends of justice.”

The IBP, while finding that administrative offense was committed by respondent for violating the notarial law, recommended the dismissal of the complaint for alleged violation of Rule 12.07 and Rule 12.08 of Canon 12 of the Code of Professional Responsibility for insufficiency of evidence. Hence, the present action was commenced.

ISSUE:May a lawyer testify on substantial matters relative to the cause of the party which he is actively

representing in a case without violating the Code of Professional Responsibility?

HELD:YES. Parenthetically, under the law, a lawyer is not disqualified from being a witness, except

only in certain cases pertaining to privileged communication arising from an attorney-client relationship. The reason behind such rule is the difficulty posed upon lawyers by the task of dissociating their relation to their clients as witnesses from that as advocates. Witnesses are expected to tell the facts as they recall them. In contradistinction, advocates are partisans -- those who actively plead and defend the cause of others. It is difficult to distinguish the fairness and impartiality of a disinterested witness from the zeal of an advocate. The question is one of propriety rather than of competency of the lawyers who testify for their clients.

Thus, although the law does not forbid lawyers from being witnesses and at the same time counsels for a cause, the preference is for them to refrain from testifying as witnesses, unless they absolutely have to; and should they do so, to withdraw from active management of the case.

Notwithstanding this guideline and the existence of the Affidavit executed by Atty. Rafanan in favor of his clients, we cannot hastily make him administratively liable for the following reasons:

First, we consider it the duty of a lawyer to assert every remedy and defense that is authorized by law for the benefit of the client, especially in a criminal action in which the latter’s life and liberty are at stake. Having undertaken the defense of the accused, respondent, as defense counsel, was thus expected to spare no effort to save his clients from a wrong conviction. The Affidavit executed by Atty. Rafanan was clearly necessary for the defense of his clients, since it pointed out the fact that on the alleged date and time of the incident, his clients were at his residence and could not have possibly committed the crime charged against them. Notably, in his Affidavit, complainant does not dispute the statements of respondent or suggest the falsity of its contents.

Second, paragraph (b) of Rule 12.08 contemplates a situation in which lawyers give their testimonies during the trial. In this instance, the Affidavit was submitted during the preliminary investigation which, as such, was merely inquisitorial. Not being a trial of the case on the merits, a preliminary investigation has the oft-repeated purposes of securing innocent persons against hasty, malicious and oppressive prosecutions; protecting them from open and public accusations of crime and from the trouble as well as expense and anxiety of a public trial; and protecting the State from useless and expensive prosecutions. The investigation is advisedly called preliminary, as it is yet to be followed by the trial proper.

Nonetheless, we deem it important to stress and remind respondent to refrain from accepting employment in any matter in which he knows or has reason to believe that he may be an essential witness for the prospective client. Furthermore, in future cases in which his testimony may become essential to serve the "ends of justice," the canons of the profession require him to withdraw from the active prosecution of these cases.