EN BANC

A.C. No. 8243, July 24, 2009

ROLANDO B. PACANA, JR., Complainant,

- versus ATTY. MARICEL PASCUAL-LOPEZ, Respondent.
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DECISION

PER CURIAM:

This case stems from an administrative complaint[1] filed by Rolando Pacana, Jr.
against Atty. Maricel Pascual-Lopez charging the latter with flagrant violation of the
provisions of the Code of Professional Responsibility.[2] Complainant alleges that
respondent committed acts constituting conflict of interest, dishonesty, influence
peddling, and failure to render an accounting of all the money and properties
received by her from complainant.

On January 2, 2002, complainant was the Operations Director for Multitel

Communications Corporation (MCC). MCC is an affiliate company of Multitel
International Holdings Corporation (Multitel). Sometime in July 2002, MCC changed
its name to Precedent Communications Corporation (Precedent).[3]

According to complainant, in mid-2002, Multitel was besieged by demand letters

from its members and investors because of the failure of its investment schemes.
He alleges that he earned the ire of Multitel investors after becoming the assignee
of majority of the shares of stock of Precedent and after being appointed as trustee

of a fund amounting to Thirty Million Pesos (P30,000,000.00) deposited at Real

Bank.

Distraught, complainant sought the advice of respondent who also happened to be

a member of the Couples for Christ, a religious organization where complainant and
his wife were also active members. From then on, complainant and respondent
constantly communicated, with the former disclosing all his involvement and
interests in Precedent and Precedents relation with Multitel. Respondent gave legal
advice to complainant and even helped him prepare standard quitclaims for
creditors. In sum, complainant avers that a lawyer-client relationship was
established between him and respondent although no formal document was
executed by them at that time. A Retainer Agreement[4] dated January 15, 2003
was proposed by respondent. Complainant, however, did not sign the said
agreement because respondent verbally asked for One Hundred Thousand Pesos
(P100,000.00) as acceptance fee and a 15% contingency fee upon collection of the
overpayment made by Multitel to Benefon,[5] a telecommunications company
based in Finland. Complainant found the proposed fees to be prohibitive and not
within his means.[6] Hence, the retainer agreement remained unsigned.[7]

After a few weeks, complainant was surprised to receive a demand letter from
respondent[8] asking for the return and immediate settlement of the funds invested
by respondents clients in Multitel. When complainant confronted respondent about
the demand letter, the latter explained that she had to send it so that her clients
defrauded investors of Multitel would know that she was doing something for them
and assured complainant that there was nothing to worry about.[9]

Both parties continued to communicate and exchange information regarding the

persistent demands made by Multitel investors against complainant. On these
occasions, respondent impressed upon complainant that she can closely work with
officials of the Anti-Money Laundering Council (AMLC), the Department of Justice
(DOJ), the National Bureau of Investigation (NBI), the Bureau of Immigration and
Deportations (BID),[10] and the Securities and Exchange Commission (SEC)[11] to
resolve complainants problems. Respondent also convinced complainant that in
order to be absolved from any liability with respect to the investment scam, he
must be able to show to the DOJ that he was willing to divest any and all of his
interests in Precedent including the funds assigned to him by Multitel.[12]
Respondent also asked money from complainant allegedly for safekeeping to be
used only for his case whenever necessary. Complainant agreed and gave her an
initial amount of P900,000.00 which was received by respondent herself.[13]

Sometime thereafter, complainant again gave respondent P1,000,000.00.[14] Said

amounts were all part of Precedents collections and sales proceeds which
complainant held as assignee of the companys properties.[15]

When complainant went to the United States (US), he received several messages
from respondent sent through electronic mail (e-mail) and short messaging system
(SMS, or text messages) warning him not to return to the Philippines because
Rosario Baladjay, president of Multitel, was arrested and that complainant may later
on be implicated in Multitels failed investment system. Respondent even said that
ten (10) arrest warrants and a hold departure order had been issued against him.
Complainant, thereafter, received several e-mail messages from respondent
updating him of the status of the case against Multitel and promised that she will
settle the matter discreetly with government officials she can closely work with in
order to clear complainants name.[16] In two separate e-mail messages,[17]
respondent again asked money from complainant, P200,000 of which was handed
by complainants wife while respondent was confined in Saint Lukes Hospital after
giving birth,[18] and another P700,000 allegedly to be given to the NBI.[19]

Through respondents persistent promises to settle all complainants legal problems,

respondent was able to convince complainant who was still in the US to execute a
deed of assignment in favor of respondent allowing the latter to retrieve 178 boxes
containing cellular phones and accessories stored in complainants house and inside
a warehouse.[20] He also signed a blank deed of sale authorizing respondent to sell
his 2002 Isuzu Trooper.[21]

Sometime in April 2003, wary that respondent may not be able to handle his legal
problems, complainant was advised by his family to hire another lawyer. When
respondent knew about this, she wrote to complainant via e-mail, as follows:

Dear Butchie,

Hi! Ok ka lang? Hope you are fine. Sorry if I shocked you but I had to do it as your
friend and lawyer. The charges are all non-bailable but all the same as the SEC
report I told you before. The findings are the same, i.e. your company was the front
for the fraud of Multitel and that funds were provided you.

I anticipated this, that is why I really pushed for a quitclaim. Rolly is willing to return
the Crosswind, laptap (sic) and [P]alm [P]ilot. Manny Cancio really helped. Anthony
na lang. Then, I will need the accounting of all the funds you received from the sale
of the phones, every employees and directors[] quitclaim (including yours), the
funds transmitted to the clients through me, the funds you utilized, and whatelse
(sic) is still unremitted, every centavo must be accounted for as DOJ and NBI can
have the account opened.

I will also need the P30 M proof of deposit with Real [B]ank and the trust given [to]
you. So we can inform them [that] it was not touched by you.

I have been informed by Efie that your family is looking at hiring Coco Pimentel. I
know him very well as his sister Gwen is my best friend. I have no problem if you
hire him but I will be hands off. I work differently kasi. In this cases (sic), you cannot
be highprofile (sic) because it is the clients who will be sacrificed at the expense of
the fame of the lawyer. I have to work quietly and discreetly. No funfare. Just like
what I did for your guys in the SEC. I have to work with people I am comfortable
with. Efren Santos will sign as your lawyer although I will do all the work. He can
help with all his connections. Vals friend in the NBI is the one is (sic) charge of
organized crime who is the entity (sic) who has your warrant. My law partner was
the state prosecutor for financial fraud. Basically we have it covered in all aspects
and all departments. I am just trying to liquidate the phones I have allotted for you s
ana (sic) for your trooper kasi whether we like it or not, we have to give this
agencies (sic) to make our work easier according to Val. The funds with Mickey are
already accounted in the quit claims (sic) as attorneys (sic) fees. I hope he will be
able to send it so we have funds to work with.
As for your kids, legally they can stay here but recently, it is the children who (sic)
the irate clients and government officials harass and kidnap to make the individuals
they want to come out from hiding (sic). I do not want that to happen. Things will be
really easier on my side.

Please do not worry. Give me 3 months to make it all disappear. But if you hire Coco,
I will give him the free hand to work with your case. Please trust me. I have never
let you down, have I? I told you this will happen but we are ready and prepared. The
clients who received the phones will stand by you and make you the hero in this
scandal. I will stand by you always. This is my expertise. TRUST me! That is all. You
have an angel on your side. Always pray though to the best legal mind up there. You
will be ok!

Candy[22]

On July 4, 2003, contrary to respondents advice, complainant returned to the

country. On the eve of his departure from the United States, respondent called up
complainant and conveniently informed him that he has been cleared by the NBI
and the BID.[23]

About a month thereafter, respondent personally met with complainant and his wife
and told them that she has already accumulated P12,500,000.00 as attorneys fees
and was willing to give P2,000,000.00 to complainant in appreciation for his help.
Respondent allegedly told complainant that without his help, she would not have
earned such amount. Overwhelmed and relieved, complainant accepted
respondents offer but respondent, later on, changed her mind and told complainant
that she would instead invest the P2,000,000.00 on his behalf in a business venture.
Complainant declined and explained to respondent that he and his family needed
the money instead to cover their daily expenses as he was no longer employed.
Respondent allegedly agreed, but she failed to fulfill her promise.[24]
Respondent even publicly announced in their religious organization that she was
able to help settle the ten (10) warrants of arrest and hold departure order issued
against complainant and narrated how she was able to defend complainant in the
said cases.[25]

By April 2004, however, complainant noticed that respondent was evading him.
Respondent would either refuse to return complainants call or would abruptly
terminate their telephone conversation, citing several reasons. This went on for
several months.[26] In one instance, when complainant asked respondent for an
update on the collection of Benefons obligation to Precedent which respondent had
previously taken charge of, respondent arrogantly answered that she was very busy
and that she would read Benefons letter only when she found time to do so.

On November 9, 2004, fed up and dismayed with respondents arrogance and

evasiveness, complainant wrote respondent a letter formally asking for a full
accounting of all the money, documents and properties given to the latter.[27]
Respondent rendered an accounting through a letter dated December 20, 2004.[28]
When complainant found respondents explanation to be inadequate, he wrote a
latter expressing his confusion about the accounting.[29] Complainant repeated his

request for an audited financial report of all the properties turned over to her;
otherwise, he will be constrained to file the appropriate case against respondent.
[30] Respondent replied,[31] explaining that all the properties and cash turned over
to her by complainant had been returned to her clients who had money claims
against Multitel. In exchange for this, she said that she was able to secure quitclaim
documents clearing complainant from any liability.[32] Still unsatisfied, complainant
decided to file an affidavit-complaint[33] against respondent before the Commission
on Bar Discipline of the Integrated Bar of the Philippines (IBP) seeking the
disbarment of respondent.

In her Answer-Affidavit,[34] respondent vehemently denied being the lawyer for

Precedent. She maintained that no formal engagement was executed between her
and complainant. She claimed that she merely helped complainant by providing him
with legal advice and assistance because she personally knew him, since they both
belonged to the same religious organization.[35]

Respondent insisted that she represented the group of investors of Multitel and that
she merely mediated in the settlement of the claims her clients had against the
complainant. She also averred that the results of the settlement between both
parties were fully documented and accounted for.[36] Respondent believes that her
act in helping complainant resolve his legal problem did not violate any ethical
standard and was, in fact, in accord with Rule 2.02 of the Code of Professional
Responsibility.[37]

To bolster her claim that the complaint was without basis, respondent noted that a
complaint for estafa was also filed against her by complainant before the Office of
the City Prosecutor in Quezon City citing the same grounds. The complaint was,
however, dismissed by Assistant City Prosecutor Josephus Joannes H. Asis for
insufficiency of evidence.[38] Respondent argued that on this basis alone, the
administrative case must also be dismissed.

In her Position Paper,[39] respondent also questioned the admissibility of the

electronic evidence submitted by complainant to the IBPs Commission on Bar
Discipline. Respondent maintained that the e-mail and the text messages allegedly
sent by respondent to complainant were of doubtful authenticity and should be
excluded as evidence for failure to conform to the Rules on Electronic Evidence
(A.M. No. 01-7-01-SC).

After due hearing, IBP Investigating Commissioner Patrick M. Velez issued a Report
and Recommendation[40] finding that a lawyer-client relationship was established
between respondent and complainant despite the absence of a written contract.
The Investigating Commissioner also declared that respondent violated her duty to
be candid, fair and loyal to her client when she allowed herself to represent
conflicting interests and failed to render a full accounting of all the cash and
properties entrusted to her. Based on these grounds, the Investigating
Commissioner recommended her disbarment.

Respondent moved for reconsideration,[41] but the IBP Board of Governors issued a
Recommendation[42] denying the motion and adopting the findings of the
Investigating Commissioner.

The case now comes before this Court for final action.

We affirm the findings of the IBP.

Rule 15.03, Canon 15 of the Code of Professional responsibility provides:

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

This prohibition is founded on principles of public policy, good taste[43] and, more
importantly, upon necessity. In the course of a lawyer-client relationship, the lawyer
learns all the facts connected with the clients case, including its weak and strong
points. Such knowledge must be considered sacred and guarded with care. No
opportunity must be given to him to take advantage of his client; for if the
confidence is abused, the profession will suffer by the loss thereof.[44] It behooves
lawyers not only to keep inviolate the clients confidence, but also to avoid the
appearance of treachery and double dealing for only then can litigants be
encouraged to entrust their secrets to their lawyers, which is paramount in the
administration of justice.[45] It is for these reasons that we have described the
attorney-client relationship as one of trust and confidence of the highest degree.
[46]

Respondent must have known that her act of constantly and actively
communicating with complainant, who, at that time, was beleaguered with
demands from investors of Multitel, eventually led to the establishment of a lawyerclient relationship. Respondent cannot shield herself from the inevitable
consequences of her actions by simply saying that the assistance she rendered to
complainant was only in the form of friendly accommodations,[47] precisely
because at the time she was giving assistance to complainant, she was already
privy to the cause of the opposing parties who had been referred to her by the SEC.
[48]

Respondent also tries to disprove the existence of such relationship by arguing that
no written contract for the engagement of her services was ever forged between
her and complainant.[49] This argument all the more reveals respondents patent
ignorance of fundamental laws on contracts and of basic ethical standards expected
from an advocate of justice. The IBP was correct when it said:

The absence of a written contract will not preclude the finding that there was a
professional relationship between the parties. Documentary formalism is not an
essential element in the employment of an attorney; the contract may be express or
implied. To establish the relation, it is sufficient that the advice and assistance of an
attorney is sought and received in any matter pertinent to his profession.[50]
(Emphasis supplied.)

Given the situation, the most decent and ethical thing which respondent should
have done was either to advise complainant to engage the services of another
lawyer since she was already representing the opposing parties, or to desist from
acting as representative of Multitel investors and stand as counsel for complainant.
She cannot be permitted to do both because that would amount to double-dealing
and violate our ethical rules on conflict of interest.

In Hornilla v. Atty. Salunat,[51] we explained the concept of conflict of interest, thus:

There is conflict of interest when a lawyer represents inconsistent interests of two

or more opposing parties. The test is whether or not in behalf of one client, it is the

lawyers duty to fight for an issue or claim, but it is his duty to oppose it for the
other client. In brief, if he argues for one client, this argument will be opposed by
him when he argues for the other client. This rule covers not only cases in which
confidential communications have been confided, but also those in which no
confidence has been bestowed or will be used. Also, there is conflict of interests if
the acceptance of the new retainer will require the attorney to perform an act which
will injuriously affect his first client in any matter in which he represents him and
also whether he will be called upon in his new relation to use against his first client
any knowledge acquired through their connection. Another test of the inconsistency
of interests is whether 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.[52]

Indubitably, respondent took advantage of complainants hapless situation, initially,

by giving him legal advice and, later on, by soliciting money and properties from
him. Thereafter, respondent impressed upon complainant that she had acted with
utmost sincerity in helping him divest all the properties entrusted to him in order to
absolve him from any liability. But simultaneously, she was also doing the same
thing to impress upon her clients, the party claimants against Multitel, that she was
doing everything to reclaim the money they invested with Multitel. Respondent
herself admitted to complainant that without the latters help, she would not have
been able to earn as much and that, as a token of her appreciation, she was willing
to share some of her earnings with complainant.[53] Clearly, respondents act is
shocking, as it not only violated Rule 9.02, Canon 9 of the Code of Professional
Responsibility,[54] but also toyed with decency and good taste.
Respondent even had the temerity to boast that no Multitel client had ever
complained of respondents unethical behavior.[55] This remark indubitably displays
respondents gross ignorance of disciplinary procedure in the Bar. As a member of
the Bar, she is expected to know that proceedings for disciplinary actions against
any lawyer may be initiated and prosecuted by the IBP Board of Governors, motu
proprio or upon referral by this Court or by the Board of Officers of an IBP
Chapter[56] even if no private individual files any administrative complaint.

Upon review, we find no cogent reason to disturb the findings and recommendations
of the IBP Investigating Commissioner, as adopted by the IBP Board of Governors,
on the admissibility of the electronic evidence submitted by complainant. We,
accordingly, adopt the same in toto.

Finally, respondent argues that the recommendation of the IBP Board of Governors
to disbar her on the grounds of deceit, malpractice and other gross misconduct,
aside from violation of the Lawyers Oath, has been rendered moot and academic by
voluntary termination of her IBP membership, allegedly after she had been placed
under the Department of Justices Witness Protection Program.[57] Convenient as it
may be for respondent to sever her membership in the integrated bar, this Court
cannot allow her to do so without resolving first this administrative case against her.

The resolution of the administrative case filed against respondent is necessary in

order to determine the degree of her culpability and liability to complainant. The
case may not be dismissed or rendered moot and academic by respondents act of
voluntarily terminating her membership in the Bar regardless of the reason for
doing so. This is because membership in the Bar is a privilege burdened with
conditions.[58] The conduct of a lawyer may make him or her civilly, if not
criminally, liable to his client or to third parties, and such liability may be
conveniently avoided if this Court were to allow voluntary termination of
membership. Hence, to terminate ones membership in the Bar voluntarily, it is
imperative that the lawyer first prove that the voluntary withdrawal of membership
is not a ploy to further prejudice the public or to evade liability. No such proof exists
in the present case.

WHEREFORE, respondent Attorney Maricel Pascual-Lopez is hereby DISBARRED for

representing conflicting interests and for engaging in unlawful, dishonest and
deceitful conduct in violation of her Lawyers Oath and the Code of Professional
Responsibility.

Let a copy of this Decision be entered in the respondents record as a member of

the Bar, and notice of the same be served on the Integrated Bar of the Philippines,
and on the Office of the Court Administrator for circulation to all courts in the
country.

SO ORDERED.

REYNATO S. PUNO
Chief Justice