3/25/2019 A.C. No. 9537 | Lee v.

Simando

THIRD DIVISION

[A.C. No. 9537. June 10, 2013.]

[Formerly CBD Case No. 09-2489]

DR. TERESITA LEE, complainant, vs. ATTY. AMADOR L.

SIMANDO, respondent.

DECISION

PERALTA, J : p

Before us is a Petition for Disbarment 1 dated July 21, 2009 filed by Dr.
Teresita Lee (Dr. Lee) against respondent Atty. Amador L. Simando (Atty.
Simando) before the Integrated Bar of the Philippines-Commission on Bar
Discipline (IBP-CBD), docketed as CBD Case No. 09-2489, now A.C. No.
9537, for violation of the Code of Judicial Ethics of Lawyers.
The facts of the case, as culled from the records, are as follows:
Atty. Simando was the retained counsel of complainant Dr. Lee from
November 2004 until January 8, 2008, with a monthly retainer fee of Three
Thousand Pesos (Php3,000.00). 2
Sometime during the above-mentioned period, Atty. Simando went to
see Dr. Lee and asked if the latter could help a certain Felicito M. Mejorado
(Mejorado) for his needed funds. He claimed that Mejorado was then awaiting
the release of his claim for informer's reward from the Bureau of Customs.
Because Dr. Lee did not know Mejorado personally and she claimed to be not
in the business of lending money, the former initially refused to lend money.
But Atty. Simando allegedly persisted and assured her that Mejorado will pay
his obligation and will issue postdated checks and sign promissory notes. He
allegedly even offered to be the co-maker of Mejorado and assured her that
Mejorado's obligation will be paid when due. Atty. Simando was quoted
saying: "Ipapahamak ba kita, kliyente kita"; "Sigurado ito, kung gusto mo,
gagarantiyahan ko pa ito, at pipirma din ako"; "Isang buwan lang, at hindi
hihigit sa dalawang buwan ito, bayad ka na." 3 AIHDcC

Due to Atty. Simando's persistence, his daily calls and frequent visits to
convince Dr. Lee, the latter gave in to her lawyer's demands, and finally
agreed to give Mejorado sizeable amounts of money. Respondent acted as

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co-maker with Mejorado in various cash loans, to wit: 4

Date: Amount
November 11, 2006 Php400,000.00
November 24, 2006 200,000.00
November 27, 2006 400,000.00
December 7, 2006 200,000.00
December 13, 2006 200,000.00
——————————————
Total: Php1,400,000.00
=============

When the said obligation became due, despite Dr. Lee's repeated
demands, Mejorado failed and refused to comply with his obligation. Since
Atty. Simando was still her lawyer then, Dr. Lee instructed him to initiate legal
action against Mejorado. Atty. Simando said he would get in touch with
Mejorado and ask him to pay his obligation without having to resort to legal
action. However, even after several months, Mejorado still failed to pay Dr.
Lee, so she again asked Atty. Simando why no payment has been made yet.
Dr. Lee then reminded Atty. Simando that he was supposed to be the co-
maker of the obligation of Mejorado, to which he replied: "Di kasuhan din
ninyo ako!" 5
Despite complainant's repeated requests, respondent ignored her and
failed to bring legal actions against Mejorado. Thus, in January 2008,
complainant was forced to terminate her contract with Atty. Simando.
Subsequently, complainant's new lawyer, Atty. Gilbert Morandarte, sent
a demand letter dated June 13, 2008 to Atty. Simando in his capacity as the
co-maker of some of the loans of Mejorado.
In his Letter dated June 30, 2008, respondent denied his liability as a
co-maker and claimed that novation had occurred because complainant had
allegedly given additional loans to Mejorado without his knowledge. 6
Dr. Lee then accused Atty. Simando of violating the trust and
confidence which she gave upon him as her lawyer, and even took advantage
of their professional relationship in order to get a loan for his client. Worse,
when the said obligation became due, respondent was unwilling to help her to
favor Mejorado. Thus, the instant petition for disbarment against Atty.
Simando. ADECcI

On August 12, 2009, the IBP-CBD ordered respondent to submit his

Answer on the complaint against him. 7
In his Answer 8 dated September 17, 2009, Atty. Simando claimed that
complainant, who is engaged in lending money at a high interest rate, was the
one who initiated the financial transaction between her and Mejorado. He
narrated that complainant asked him if it is true that Mejorado is his client as
she found out that Mejorado has a pending claim for informer's reward with
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the Bureau of Customs. When he affirmed that Mejorado is his client,

complainant signified that she is willing to give money for Mejorado's financial
needs while awaiting for the release of the informer's reward. Eventually,
parties agreed that Mejorado will pay double the amount and that payment
shall be made upon receipt by Mejorado of the payment of his claim for
informer's reward. 9
Meanwhile, Atty. Simando stressed that Dr. Lee gave Mejorado a total
of Php700,000.00 as an investment but he signed as co-maker in all the
receipts showing double the amount or Php1,400,000.00. 10
Respondent claimed that complainant is a money-lender exacting high
interest rates from borrowers. 11 He narrated several instances and civil cases
where complainant was engaged in money-lending where he divulged that
even after defendants had already paid their loan, complainant still persists in
collecting from them. 12 Respondent asserted that he knew of these
transactions, because he was among the four lawyers who handled
complainant's case. 13
Respondent averred that from the time that Mejorado and Dr. Lee had
become close to each other, the latter had given Mejorado additional
investments and one (1) Silverado Pick-up at the price of P500,000.00 and
fifty (50) sacks of old clothings. He claimed that the additional investments
made by Dr. Lee to Mejorado were given without his knowledge.
Atty. Simando further alleged that with Dr. Lee's investment of around
P2 Million which included the Silverado Pick-up and the fifty (50) sacks of old
clothings, the latter required Mejorado to issue five (5) checks with a total
value of P7,033,500.00, an amount more than the actual value which
Mejorado received. 14 DCESaI

Atty. Simando added that while Dr. Lee and Mejorado agreed that the
issued checks shall be presented to the bank only upon payment of his
informer's reward, Dr. Lee presented the checks to the bank despite being
aware that Mejorado's account had no funds for said checks. Atty. Simando
further denied that he refused to take legal action against Mejorado. He
claimed that complainant never instructed him to file legal action, since the
latter knew that Mejorado is obligated to pay only upon receipt of his
informer's reward.
Finally, Atty. Simando insisted that he did not violate their lawyer-client
relationship, since Dr. Lee voluntarily made the financial investment with
Mejorado and that he merely introduced complainant to Mejorado. He further
claimed that there is no conflict of interest because he is Mejorado's lawyer
relative to the latter's claim for informer's reward, and not Mejorado's lawyer
against Dr. Lee. He reiterated that there is no conflicting interest as there was
no case between Mejorado and Dr. Lee that he is handling for both of them. 15

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In her Reply dated October 30, 2009, Dr. Lee denied that what she
entered into was a mere investment. She insisted that she lent the money to
Mejorado and respondent, in his capacity as co-maker and the transaction
was actually a loan. 16 To prove her claim, Dr. Lee submitted the written loan
agreements/receipts which categorically stated that the money received was a
loan with due dates, signed by Mejorado and respondent as co-maker. 17 She
further claimed that she did not know Mejorado and it was respondent who
brought him to her and requested her to assist Mejorado by lending him
money as, in fact, respondent even vouched for Mejorado and agreed to sign
as co-maker.
Complainant further emphasized that what she was collecting is the
payment only of the loan amounting to One Million Four Hundred Thousand
Pesos (Php1,400,000.00) which respondent had signed as co-maker. Thus,
respondent's claim that his obligation was already extinguished by novation
holds no water, since what was being collected is merely his obligation
pertaining to the loan amounting to Php1,400,000.00 only, and nothing more.
Finally, complainant lamented that respondent, in his comments, even
divulged confidential informations he had acquired while he was still her
lawyer and even used it against her in the present case, thus, committing
another unethical conduct. She, therefore, maintained that respondent is
guilty of violating the lawyer-client confidentiality rule. HaEcAC

Both parties failed to appear during the mandatory conference on

January 15, 2010. Both parties requested for resetting of the mandatory
conference, however, both failed to agree on a certain date. Hence, the IBP,
so as not to delay the disposition of the complaint, terminated the mandatory
conference and instead required the parties to submit their respective position
papers. 18
On March 18, 2010, the IBP-CBD found Atty. Simando guilty of violating
the Code of Professional Responsibility. It recommended that respondent be
suspended from the practice of law for six (6) months.
On December 29, 2010, the IBP Board of Governors adopted and
approved the Report and Recommendation of the IBP-CBD to suspend Atty.
Simando from the practice of law for a period of six (6) months.
Respondent moved for reconsideration.
On March 10, 2012, the IBP Board of Governors granted respondent's
motion for reconsideration for lack of sufficient evidence to warrant the penalty
of suspension. The Resolution dated December 29, 2010 was reversed and
the case against respondent was dismissed.
RULING
We reverse the ruling of the IBP Board of Governors.

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Jurisprudence has provided three tests in determining whether a lawyer

is guilty of representing conflicting interest:
One test is whether a lawyer is duty-bound to fight for an issue or
claim in behalf of one client and, at the same time, to oppose that
claim for the other client. Thus, if a lawyer's argument for one client
has to be opposed by that same lawyer in arguing for the other
client, there is a violation of the rule. EACTSH

Another test of inconsistency of interests is whether the

acceptance of a new relation would prevent the full discharge
of the lawyer's duty of undivided fidelity and loyalty to the
client or invite suspicion of unfaithfulness or double-dealing in
the performance of that duty. Still another test is whether the
lawyer would be called upon in the new relation to use against a
former client any confidential information acquired through their
connection or previous employment. 19
In the instant case, we find substantial evidence to support respondent's
violation of the above parameters, as established by the following
circumstances on record:
First, it is undisputed that there was a lawyer-client relationship between
complainant and Atty. Simando as evidenced by the retainer fees received by
respondent and the latter's representation in certain legal matters pertaining to
complainant's business;
Second, Atty. Simando admitted that Mejorado is another client of him
albeit in a case claiming rewards against the Bureau of Customs;
Third, Atty. Simando admitted that he was the one who introduced
complainant and Mejorado to each other for the purpose of entering into a
financial transaction while having knowledge that complainant's interests
could possibly run in conflict with Mejorado's interests which ironically such
client's interests, he is duty-bound to protect; SHTcDE

Fourth, despite the knowledge of the conflicting interests between his

two clients, respondent consented in the parties' agreement and even signed
as co-maker to the loan agreement;
Fifth, respondent's knowledge of the conflicting interests between his
two clients was demonstrated further by his own actions, when he:
(a) failed to act on Mejorado's failure to pay his obligation to
complainant despite the latter's instruction to do so;
(b) denied liability despite signing as co-maker in the
receipts/promissory notes arising from the loan
agreement between his two clients;

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(c) rebutted complainant's allegations against Mejorado and

him, and even divulged informations he acquired while he
was still complainant's lawyer.
Clearly, it is improper for respondent to appear as counsel for one party
(complainant as creditor) against the adverse party (Mejorado as debtor) who
is also his client, since a lawyer is prohibited from representing conflicting
interests. He may not, without being guilty of professional misconduct, act as
counsel for a person whose interest conflict with that of his present or former
client.
Respondent's assertion that there is no conflict of interest because
complainant and respondent are his clients in unrelated cases fails to
convince. His representation of opposing clients in both cases, though
unrelated, obviously constitutes conflict of interest or, at the least, invites
suspicion of double-dealing. 20 Moreover, with the subject loan agreement
entered into by the complainant and Mejorado, who are both his clients,
readily shows an apparent conflict of interest, moreso when he signed as co-
maker. IEDHAT

Likewise, respondent's argument that the money received was an

investment and not a loan is difficult to accept, considering that he signed as
co-maker. Respondent is a lawyer and it is objectionable that he would sign
as co-maker if he knew all along that the intention of the parties was to
engage in a mere investment. Also, as a lawyer, signing as a co-maker, it can
be presupposed that he is aware of the nature of suretyship and the
consequences of signing as co-maker. Therefore, he cannot escape liability
without exposing himself from administrative liability, if not civil liability.
Moreover, we noted that while complainant was able to show proof of receipts
of various amounts of money loaned and received by Mejorado, and signed
by the respondent as co-maker, the latter, however, other than his bare
denials, failed to show proof that the money given was an investment and not
a loan.
It must be stressed that the proscription against representation of
conflicting interests finds application where the conflicting interests arise with
respect to the same general matter however slight the adverse interest may
be. It applies even if the conflict pertains to the lawyer's private activity or in
the performance of a function in a non-professional capacity. In the process of
determining whether there is a conflict of interest, an important criterion is
probability, not certainty, of conflict. 21
We likewise note that respondent offered several excuses in order to
avoid payment of his liability. First, in his Answer to complainant's demand
letter, he claimed there was novation which extinguished his liability;
Secondly, he claimed that the amount received by Mejorado for which he
signed as co-maker was merely an investment and not a loan. Finally, he
alleged that it was agreed that the investment with profits will be paid only

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after Mejorado receives the payment for his claim for reward which
complainant violated when she presented the checks for payment
prematurely. These actuations of Atty. Simando do not speak well of his
reputation as a lawyer. 22
Finally, we likewise find respondent guilty of violating Rule 21.01 of the
Code of Professional Responsibility. 23 In his last-ditch effort to impeach the
credibility of complainant, he divulged informations 24 which he acquired in
confidence during the existence of their lawyer-client relationship. HaECDI

We held in Nombrado v. Hernandez 25 that the termination of the

relation of attorney and client provides no justification for a lawyer to represent
an interest adverse to or in conflict with that of the former client. The reason
for the rule is that the client's confidence once reposed cannot be divested by
the expiration of the professional employment. Consequently, a lawyer should
not, even after the severance of the relation with his client, do anything which
will injuriously affect his former client in any matter in which he previously
represented him nor should he disclose or use any of the client's confidences
acquired in the previous relation.
Accordingly, we reiterate that lawyers are enjoined to look at any
representation situation from "the point of view that there are possible
conflicts," and further, "to think in terms of impaired loyalty" that is to evaluate
if his representation in any way will impair loyalty to a client. 26
WHEREFORE, premises considered, this Court resolves to ADOPT the
findings and recommendation of the IBP in Resolution No. XIX-2010-733
suspending respondent Atty. Amador L. Simando for six (6) months from the
practice of law, with a WARNING that a repetition of the same or similar
offense will warrant a more severe penalty.
Let copies of this Decision be furnished all courts, the Office of the Bar
Confidant and the Integrated Bar of the Philippines for their information and
guidance. The Office of the Bar Confidant is DIRECTED to append a copy of
this Decision to respondent's record as member of the Bar.
Atty. Simando is DIRECTED to inform the Court of the date of his
receipt of this Decision so that we can determine the reckoning point when his
suspension shall take effect.
This Decision shall be immediately executory.
SO ORDERED.
Velasco, Jr., Abad, Mendoza and Leonen, JJ., concur.

Footnotes
1. Rollo, pp. 1-13.

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2. Id. at 2.
3. Id. at 2.
4. Id. at 3.
5. Id.
6. Id.
7. Id. at 14.
8. Id. at 26-40.
9. Id. at 28.
10. Id.
11. Id. at 30.
12. Id.
13. Id.
14. Id. at 29.
15. Id. at 33.
16. Id. at 123.
17. Id. at 135-137.
18. Id. at 184.
19. Josefina M. Aninon v. Atty. Clemencio Sabitsana, Jr., A.C. No. 5098,
April 11, 2012. (Emphasis supplied.)
20. Id.
21. Quiambao v. Atty. Bamba, A.C. No. 6708, August 25, 2005, 465 SCRA
1, 13.
22. Rollo, pp. 135-137.
23. Rule 21.01. — A lawyer shall not, to the disadvantage of his client, use
information acquired in the course of employment, nor shall he use the
same to his own advantage or that of a third person, unless the client with
full knowledge of the circumstances consents thereto.
24. Respondent's Answer dated September 17, 2009, rollo, pp. 30-31.
25. 135 Phil. 5, 9 (1968).
26. Heirs of Falame v. Atty. Baguio, A.C. No. 6876, March 7, 2008, 548
SCRA 1, 15.

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