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Issues
The issues to be resolved in this case are as follows: (1) whether there was a violation of Atty. Tolentino's constitutional right to due process; and (2) whether Atty. Tolentino committed deceit, malpractice and gross misconduct through the aforementioned falsifications in violation of the Code of Professional Responsibility and the Lawyer's Oath which would merit his disbarment and removal from the legal profession.
The Court's Ruling
The Court resolves to deny Atty. Tolentino's motion and affirm the IBP Resolution with modification.
There was no denial of due process and opportunity to be heard.
Atty. Tolentino, like any respondent in a disbarment or administrative proceeding,
is entitled to due process. The most basic tenet of due process is the right to be heard, hence, denial of due process means the total lack of opportunity to be heard or to have one's day in court.48 As a rule, no denial of due process takes place where a party has been given an opportunity to be heard and to present his case.49chanrobleslaw
Rule 138, Section 30 of the Revised Rules of Court also
provides:ChanRoblesVirtualawlibrary Sec. 30. Attorney to be heard before removal or suspension. - No attorney shall be removed or suspended from the practice of his profession, until he has had full opportunity upon reasonable notice to answer the charges against him, to produce witnesses in his own behalf, and to be heard by himself or counsel. But if upon reasonable notice he fails to appear and answer the accusation, the court may proceed to determine the matter ex-parte. Contrary to his claims, Atty. Tolentino was not denied due process or deprived of an opportunity to be heard. The records show that his then counsel Atty. Fuentes filed a Comment on his behalf. He also filed a Motion for Reconsideration of the May 13, 2011 Resolution of the IBP Board, and a Supplemental Motion for Reconsideration. His participation through pleadings and motions cured whatever defect that may have attended the issuance of notices regarding the proceedings held before the IBP.
In Vivo v. Philippine Amusement and Gaming Corporation,50 we held that any defect in the observance of due process is cured by the filing of a motion for reconsideration and that denial of due process cannot be successfully invoked by a party who was afforded the opportunity to be heard.51 We likewise reiterated that defects in procedural due process may be cured when the party has been afforded the opportunity to appeal or to reconsideration of the action or ruling complained of.52chanrobleslaw
Knowing that there is a pending administrative complaint against him, Atty.
Tolentino should have actively and voluntarily participated in the case especially so when he believes that his defense is meritorious. Instead, after filing his Comment containing bare denials and facts unsupported by any proof, Atty. Tolentino deliberately failed to participate in the proceeding and now hides behind the flimsy excuse that no notices were received by him or his counsel.
As a lawyer, Atty. Tolentino is presumed to understand the gravity of a disbarment
proceeding. His failure to present his side of the controversy, despite opportunity for him to do so, constitutes a waiver by him of such right.53chanrobleslaw
