llepublit of tbe .

tlbilippine~ BY: c--:----Jr : : : : } d ~ ~ ~= -

~upreme ~ourt
:fflanila
THIRD DIVISION

NOT I CE
Sirs/Mesdames:
Please take notice that the Court, Third Division, issued a Resolution
dated February 17, 2020, which reads as follows:

"A.C. No. 12667 (Ceferino B. Garay, Jr. v. Atty. Bernardino M

Mortera). - The instant disbarment case 1 was filed by Ceferino B. Garay, Jr.
(complainant), against Atty. Bernardino M . Mortera (respondent) for allegedly
abandoning and neglecting his duties as counsel for complainant.

Facts of the Case

Complainant engaged respondent as his counsel in a case2 filed before

the Construction Industry Arbitration Commission (CIAC) against Majestic
Technical Skills Development and Landscape Corporation (Majestic) for
unpaid monthly progress billings, interests, unpaid extra work, actual and moral
damages, and attorney's fees. 3 CIAC rendered a Decision4 dated May 9, 2011 ,
awarding complainant the unpaid monthly progress billings of PS,090,835 .58
and interest amounting to P80, 908.36.

Complainant filed a Motion for Correction of Final Arbitral Award, 5

which was denied by the CIAC in its Order6 dated June 7, 2011. Accordingly,
complainant and Majestic both filed a Petition for Review7 before the Court
of Appeals (CA) on July 2011. Since then, complainant has been following up
with respondent on the status of the case. However, respondent has stopped
communicating with complainant since 2014. 8 On November 10, 2014,
complainant was surprised that a Decision9 dated July 31, 2014 was already
rendered by the CA. In the Decision, the CA deleted the award in favor of
complainant and directed him to pay Majestic the amount of Pl,714,533.53

Rollo, Vol. I, pp. l-10.

ld.atll-17.
ld. at I.
Id. at 99- I 19.
Id. at 63-67.
Id. at 61-62.
Id. at 120-151.
Id. at 3.
Id. at 153- 188.

- over -
 Resolution -2 - A.C. No. 12667
February 17, 2020

and '?14,767,323.12 with legal interest of 6% per annum from finality of

judgment until fully paid. 10 On August 11, 2014, a copy of the CA Decision
was allegedly sent to respondent's office, but he was out of the country and
was not informed by his staff. Since then, complainant tried to contact
respondent to no avail until such time that the period to file a motion .for
reconsideration has lapsed. Because of this, complainant allegedly prepared
and filed, by himself, a Motion to Admit the Attached Motion for
Reconsideration. 11

On December 29, 2015, complainant received a copy of the CA

Resolution dated December 17, 2015 denying his Motion to Admit the
Attached Motion for Reconsideration, because it was not filed on time. At this
point, complainant was still trying to contact respondent because without
respondent's alleged negligence, he would have had a chance to win the case
before the CA. As respondent was still unavailable, and considering the big
amount involved in the case, complainant allegedly filed, by himself, a
Petition for Certiorari 12 before the Court. The Court dismissed the petition on
procedural grounds. 13 For this reason, complainant tried to contact respondent,
but there was no response. 14

Distraught by the dismissal of his petition and keeping in mind the

period required to file a motion for reconsideration, complainant filed a
Motion for Reconsideration, 15 allegedly without counsel, which was likewise
denied by the Court in a Resolution dated July 25, 2016. 16

Accordingly, the present disbarment Complaint17 was filed by

complainant against respondent. The Complaint alleged that respondent's
failure to timely file a motion for reconsideration with the CA, which resulted
in the dismissal of the case, constitutes a violation of respondent's Oath of
Office and Canons 17, 18, 18.03, and 18.04 of the Code of Professional
Responsibility (CPR). Moreso, had respondent been vigilant in informing
complainant regarding the status of the case, he would not have lost the case.
Complainant averred that if respondent was not interested in pursuing the
case, he should have told complainant so that he could have engaged another
lawyer. Respondent, by not withdrawing his appearance as counsel for
complainant, was bound to protect his client's cause; however, he neglected his
duties.

In his Answer, 18 respondent denied having "abandoned and neglected"

complainant's case. He argued that when his staff received the Decision of the

JO
Id. at 187-188.
II
Id. at 189- I 93.
12
Id. at 215-249.
13
Id. at 251-252.
14
Id. at 4-5.
15
Id. at 253-260.
16
Id. at 5.
17
Id. at 1-8.
18
Id. at 267-270.

- over - (pt)
• I ,.

Resolution -3 - A.C. No. 12667

February 17, 2020

CA on August 11, 2014, he was in Kennett, Missouri, USA, and complainant

was "mentally dishonest" in claiming that he found out about the CA' s
Decision only on November 10, 2014. He also argued that the Decision was
furnished to both parties and their counsels. In addition, he and complainant
were exchanging text messages and emails earlier than November 10, 2014
and he helped in the preparation of the Motion for Reconsideration and the
Motion to Admit the Attached Motion for Reconsideration filed before the
CA, both of which were allegedly done in his house in Bacoor, Cavite. He
also claimed that complainant has "not really lost track of his whereabouts,"
since complainant knew his former office in Pasay City and his new office in
Ermita, Manila. He added that he was very patient with complainant even if
he was being paid less. When complainant received on December 29, 2015,
the resolution of the CA denying the Motion to Admit Attached Motion for
Reconsideration, he tried to contact respondent, but there was no response. He
was dismayed by the "unfriendly and ungrateful" tenor of the Complaint
because he treated complainant as a brother, and he had been his adviser since
2008. In fact, it was through respondent and his brother that complainant was
able to close a big contract with Majestic but they never received any
consideration for it.

Recommendation of the Integrated Bar of the Philippines

Commissioner and Board of Governors

On August 30, 2018, the Integrated Bar of the Philippines (IBP)

Investigating Commissioner submitted a Report and Recommendation 19and
found respondent negligent in handling complainant's case. The Investigating
Commissioner recommended his suspension of one year from the practice of
law, and that he be reprimanded for failure to file the required position paper
in the proceedings. 20

The Investigating Commissioner found that respondent was negligent

when he failed to timely file a motion for reconsideration of the Decision
dated July 31, 2014 of the CA. His justification that he was in the USA when
he received the Decision was not an excuse. Even assuming that complainant
knew about his trip, his failure to effect a system to adequately protect his
client's cause was considered negligence and a betrayal of his client's trust.
As counsel, it was his duty to take necessary steps and ordinary care as his
client's interests may require. The failure of his client to pay him fees did not
warrant abandomnent of the case.2 1

In addition, the Investigating Commissioner considered respondent's

argument that he and complainant were furnished by the CA with a copy of
its Decision dated July 3 1, 2014 as a clear acknowledgment that respondent
received the same. Nonetheless, respondent did not mention any steps he had
taken, if any, to protect his client's interest. What was clear from the records
19
Rollo, Vol. II, pp. 164-170.
20
Jd. at 170.
21
Id. at 168-169.

- over -
 Resolution -4 - A.C. No. 12667
February 17, 2020

was that complainant had to sign and file by himself a belated Motion to Admit
the Attached Motion for Reconsideration before the CA, a Petition for
Certiorari and a Motion for Reconsideration with the Court.22

In a Resolution23 dated February 16, 2019, the IBP Board of Governors

adopted the Report and Recommendation of the Investigating Commissioner
with modification, by imposing the penalty of six months suspension from the
practice of law with a stern warning against respondent.

On July 15, 2019, respondent filed a Manifestation24 that he would no

longer file a motion for reconsideration and he would stop practicing law as
mandated by the IBP Board of Governors.

Ruling of the Court

The Court adopts the findings of the Investigating Commissioner and the
recommendation of the IBP Board of Governors.

Canons 17, 18, and Rules 18.03 and 18.04 of the CPR state:

CANON 17 - A lawyer owes fidelity to the cause of his client and he shall be
mindful of the trust and confidence reposed in him.

CANON 18 - A lawyer shall serve his client with competence and diligence.

xxxx

Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him, and
his negligence in connection therewith shall render him liable.

Rule 18.04 - A lawyer shall keep the client informed of the status of his case
and shall respond within a reasonable time to the client's request for
information.

In this case, respondent's failure to communicate with his client

regarding the status of the case and his failure to timely file a motion for
reconsideration before the CA, despite due notice and without proper
justification, exhibits his inexcusable lack of care and diligence in managing
his client's cause, which are in violation of Canons 17 and 18, and Rules 18.03
and 18.04 of the CPR. As such, he neglected the legal matters entrusted to him
for which he must be clearly held administratively liable.

A lawyer has a duty to serve his or her client with competence and
diligence. Abandoning a client by refusing to see or talk to him or her, refusing
to answer calls to his or her cellular phone, and not replying to a client is
22
Id. at 162.
23
Id. at 162-163.
24
Id. at 159-160.
~,f
- over - (187)
 J,
. I

Resolution - 5 - A.C. No. 12667

February 17, 2020

violative of Canon 18 and Rule 18.03 of the CPR. 25 Respondent's defense that
complainant knew the location of his house and office, hence not losing track of
his whereabouts, is not tenable. As a lawyer, it was his duty to update the client
with the case status and to communicate with him. Likewise, being paid less is
not an excuse to abandon the cause of his client. A lawyer may not justify the
failure to file a pleading on the ground that a client had not fully paid the agreed
attorney's fees. 26 An attorney is bound to protect his or her client's interest to the
best of his or her ability and with utmost diligence.27

The practice of law is a special privilege bestowed only upon those who
are competent intellectually, academically and morally. This Court has been
exacting in its expectations for the members of the Bar to always uphold the
integrity and dignity of the legal profession and refrain from any act or omission
that might lessen the trust and confidence of the public.28

WHEREFORE, the Court ADOPTS and AFFIRMS the Resolution

dated February 16, 2019 of the Integrated Bar of the Philippines Board of
Governors in CBD Case No. 16-5155 and ORDERS the SUSPENSION of
respondent Atty. Bernardino M. Mortera from the practice of law for SIX (6)
MONTHS from finality of this Resolution, with a STERN WARNING that a
commission of the same or similar acts in the future shall be dealt with more
severely.

Let a copy of this Resolution be entered in the personal records of

respondent as a member of the Bar, and copies furnished to the Office of the
Bar Confidant, 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.

SO ORDERED."

Very truly yours,

~\ ~D~W
MISAEL DOMINGO C. BATTP~PLIII
Division Clerk of Courtj1J-I/J.f~

Mr. Cefe rino B. Garay, Jr.

Complainant
CBG Building, N o. 16 Yakal West St. cor.-
Marcos H i-way, Santolan, 1600 Pasig City

25
Ferrer v. Tebelin, 500 Phil. 1, IO (2005).
26
Tan v. Lapak, 402 Phil. 920, 932 (2001 ).
27
Id.
28
Villa.flares v. Limos, 563 Phi l. 453, 463 (2007).
~
- over- (187)
 Resolution -6 - A.C. No. 12667
February 17, 2020

ESPEJO & PARTNERS

Counsel for Complainant
111 Morning Star Building, Central
Condominium, Central Avenue
1107 Quezon City

Atty. Clarolyn Jane A. Capellan

Coll. Counsel for Complainant
Unit 305 Phil. College of Surgeons Bldg.
992 EDSA, I I 00 Quezon City

Atty. Bernadina M. Mortera

Respondent
Xanadu Hotel, YMCA Compound, 350 A.J.
Villegas St., Ermita, 1000 Manila

Atty. Amor P. Entila

Assistant Bar Confidant
OFFICE OF THE BAR CONDIOANT
Supreme Court, Manila

Atty. Randall C. Tabayoyong

Director for Bar Discipline
INTEGRATED BAR OF THE PHILIPPINES
Dofia Julia Vargas Avenue
1600 Pasig City, Ortigas Center

Hon. Jose Midas P. Marquez

Court Administrator
OFFICE OF THE COURT ADMINISTRATOR
Supreme Court, Manila

Hon. Raul Bautista Villanueva

Hon. Jenny Lind R. Aldecoa-Delorino
Hon. Leo T. Madrazo
Deputy Court Administrators
OFFICE OF THE COURT ADMINISTRATOR
Supreme Court, Manila

Hon. Lilian C. Barribal-Co

Hon. Maria Regina Adoracion Filomena M . Ignacio
Assistant Court Administrators
OFFICE OF THE COURT ADMINISTRATOR
Supreme Court, Manila

Court Management Office (Atty. Marina B. Ching)

OFFICE OF THE COURT ADMINISTRATOR
Supreme Court, Manila

PUBLIC INFORMATION OFFICE

Supreme Court, Manila
· [For uploading pursuant to A.M. 12-7- 1-SC]

LIBRARY SERVICES
Supreme Court, Manila

A.C. No. 12667

!joy