TOPIC: SUSPENSION OF A LAWYER| Guidelines to Lift
DOCTRINE: see below the guidelines to lift the order of suspension
TOMAS P. TAN v. GUMBA | AC. No. 9000, Jan 10, 2018
FACTS:
Atty. Gumba obtained a P350Kloan from Mr. Tan and offered the parcel of land regi
stered in her father’s name as security. She even showed a
SPA that she was authorized to sell/ encumber the property. Atty. Gumba defaulted
on her loan obligation and failed to pay the same. So, Mr. Tan went to the
Register of Deeds to register the sale, only to find out that the SPA did not give res
pondent the power to sell the property but only empowered respondent to mortgag
e the property solely to banks.
Commissioner's Report: For selling the property, and not just mortgaging it to
complainant, who was not even a bank, Gumba acted beyond her authority.
Having done so, she committed gross violation of the Lawyer's Oath as well as
Canon 1, Rule 1.01, and Canon 7of the Code of Professional Responsibility. As such,
he recommended that respondent be suspended from the practice of law for one
year.
Action of the Supreme Court: It suspended respondent from the practice of law for
6 months, effective immediately, with a warning that a repetition of same or similar
act will be dealt with more severely.
Judge Armea of the MTCC of Naga City, wrote a letter inquiring from the OCA
whether respondent could continue representing her clients and appear in courts.
She also asked the OCA if the decision relating to respondent's suspension, wc was
downloaded from the internet, constitutes sufficient notice to disqualify her to
appear in courts for the period of her suspension. Her inquiry is due to the fact that
Gumba represented a party in a case pending in her court; Gumba denied that she
was suspended to practice law since she respondent had not yet received a copy of
the Court's resolution on the matter.
Gumba accused the OCA and the OBC of suspending her from the practice of law
even if the administrative case against her was still pending with the IBP. She
likewise faulted the OBC for requiring her to submit a clearance from its office
before she resumes her practice of law after the suspension. In turn, she argued
that Atty. Paraiso benefited from this supposed "bogus suspension" by publicly
announcing the disqualification of respondent to practice law.
In its Answer, the OCA argued that the RTC had no jurisdiction over the action, it
stressed that respondent should raise such matter by filing a motion for
reconsideration in the administrative case, instead of filing a complaint with the
RTC. The OBC opined that for failing to comply with the order of her suspension,
respondent deliberately refusedtsed to obey a lawful order of the Court. Thus, it
recommended that a stiffer penalty be imposed against respondent.
ISSUE: Is respondent administratively liable for engaging in the practice of law
during the period of her suspension and prior to an order of the Court lifting such
suspension?
RULING: Yes. Respondent's violation of the lawful order of the Court is two-fold:
Violation 1: she filed pleadings and appeared in court as counsel during the period
of her suspension, and prior to the lifting of such order of her suspension;
and Violation 2: she did not comply with the Court's directive for her to file a
sworn statement in compliance with the guidelines for the lifting of the suspension
order.
Violation 1: Similarly, in this case, the Court notified respondent of her
suspension. However, she continued to engage in the practice law by filing
pleadings and appearing as counsel in courts during the period of her suspension. It
is common sense that when the Court orders the suspension of a lawyer from the
practice of law, the lawyer must desist from performing all functions which require
the application of legal knowledge within the period of his or her suspension. To
stress, by practice of law, we refer to "any activity, in or out of court, which
requires the application of law, legal procedure, knowledge, training, and
experience. It includes performing acts which are characteristic of the legal
profession, or rendering any kind of service which requires the use in any degree of
legal knowledge or skill.” In fine, it will amount to unauthorized practice, and a
violation of a lawful order of the Court if a suspended lawyer engages in the
practice of law during the pendency of his or her suspension.
Violation 2: Under Section 27, Rule 138 of the Rules of Court, a member of the bar
may be disbarred or suspended from practice of law for willful disobedience of any
lawful order of a superior court, among other grounds. Here, respondent willfully
disobeyed the Court's lawful orders by failing to comply with the order of
her suspension, and to the Court's directive to observe the guidelines for the
lifting thereof.
Guidelines to lift the order of suspension:
In Maniago v. Atty. De Dios, the Court laid down the guidelines for the lifting of an
order of suspension, to wit:
1) After a finding that respondent lawyer must be suspended from the practice of
law, the Court shall render a decision imposing the penalty;
2) Unless the Court explicitly states that the decision is immediately executory upon
receipt thereof, respondent has 15 days within which to file a motion for
reconsideration thereof. The denial of said motion shall render the decision final and
executory;
3) Upon the expiration of the period of suspension, respondent shall file a Sworn
Statement with the Court, through the Office of the Bar Confidant, stating therein
that he or she has desisted from the practice of law and has not appeared in any
court during the period of his or her suspension;
4) Copies of the Sworn Statement shall be furnished to the Local Chapter of the IBP
and to the Executive Judge of the courts where respondent has pending cases
handled by him or her, and/or where he or she has appeared as counsel;
5) The Sworn Statement shall be considered as proof of respondent's compliance
with the order of suspension;
6) Any finding or report contrary to the statements made by the lawyer under oath
shall be a ground for the imposition of a more severe punishment, or disbarment,
as may be warranted.
Is a downloaded decision valid service?
While, indeed, service of a judgment or resolution must be done only personally or
by registered mail, and that mere showing of a downloaded copy of the Resolution
to respondent is not a valid service, the fact however, that respondent was duly
informed of her suspension remains unrebutted. Again, as stated above, she filed a
motion for reconsideration on the Resolution, and the Court duly notified her of the
denial of said motion. It thus follows that respondent's six months suspension
commenced from the notice of the denial of her motion for reconsideration.
Is the lifting of the order of suspension automatic?
Moreover, the lifting of a suspension order is not automatic. It is necessary that
there is an order from the Court lifting the suspension of a lawyer to practice law.
To note, in Maniago, the Court explicitly stated that a suspended lawyer shall, upon
the expiration of one’s suspension, file a sworn statement with the Court, and that
such statement shall be considered proof of the lawyer’s compliance with the order
of suspension.
In this case, the Court directed respondent to comply with the guidelines for the
lifting of the suspension order against her by filing a sworn statement on the
matter. However, respondent did not comply. Instead, she filed a complaint against
the OCA, the OBC and a certain Atty. Paraiso with the RTC. For having done so,
respondent violated a lawful order of the Court, that is, to comply with the
guidelines for the lifting of the order of suspension against her.
Penalty: Pursuant to prevailing Jurisprudence, the suspension for six (6) months
from the practice of law against respondent is in order. An additional period of six
(6) months (from her original six (6) months suspension) and WARNED that a
repetition of the same or similar offense will be dealt with more severely.
