Alphonso Defensor I-B Legal Ethics

Wen Ming Chen a.k.a Domingo Tan vs. Atty. F.D. Nicolas B. Pichay A.C. No. 7910 September 18, 2009 Facts: Complainant Wen Ming W Chen, also known as Domingo Tan, filed a complaint before the Integrated Bar of the Philippines against Private Respondent, Atty. F.D. Nicolas B. Pichay for (1) violation of Rule 1.01 of the Code of Professional Responsibility when he allegedly extorted money from the complainant; (2) gross misconduct amounting to gross inexcusable ignorance of the law when he filed complaints for damages before the Department of Justice (DOJ); and (3) violation of Rule 10.3 of the Code of Professional Responsibility when he filed a motion before the Regional Trial Court seeking the inclusion of complainants name in the hold departure list of the Bureau of Immigration and Deportation. Respondent is the legal counsel of American Security Systems International (ASSI), an ASSI is engaged in investigating and prosecuting violations of the intellectual property rights of its clients which include Guccio Gucci S.P.A. (Gucci) and Louis Vuitton (LV). Search warrants were implemented and thousands of counterfeit Gucci and LV items were seized from complainants residence. Complainant alleged that respondent requested a meeting during which he demanded P500,000 from complainant in return for not filing criminal charges against the latter. When complainant rejected respondents proposal, the latter filed two complaints for damages before the DOJ. Complainant emphasized that respondent ought to know that the DOJ has no jurisdiction over civil actions for damages. Finally, complainant alleged that respondent applied for the issuance of a hold departure order against complainant despite the absence of a criminal case filed with the Regional Trial Court. Respondent alleged that after the implementation of the search warrant and the seizure of the counterfeit Gucci and LV items, he was informed by Atty. Jose Justo Yap that David Uy who is allegedly a friend of herein complainant requested a meeting. On February 14, 2006 respondent with Atty. Yap who sat in and observed, met with Uy who said he was attending the on behalf of complainant. Uy asked how much damages would Gucci and LV demand, respondent replied that he was only authorized to receive proposals but informed Uy though that based on previous settlements, the damages would range from P500,000 to P1Million. Respondent also informed Uy that the return of the seized items was non-negotiable.

There being no settlement reached, respondent filed two complaints before the DOJ upon instructions of Gucci and LV. In order to protect the interests of his clients, also filed a motion before RTC of Manila for the inclusion of complainants name in the hold departure order list. Respondent vehemently denied extorting money from complainant and emphasized that the meeting was the request of complainant and David Uy and that he has never met said complainant. Respondent explained that Gucci and LV intended to have the civil aspect of the case instituted along with the criminal aspect. According to respondent, these are indications of his awareness of the limited jurisdiction of the DOJ. Even conceding that he erred in this regard, respondent maintained that such does not warrant his disbarment. As regards the filing of the motion for inclusion of complainants name in the hold departure list, respondent argued that the filing was done to protect the interests of his client more so because complainant had been previously blacklisted and ordered for deportation by the BID. Complainant thereafter filed his Reply reiterating his earlier arguments, but did not rebut regards the allegation that he was not even present during the meeting. Complainant claimed that whether respondent has or has no knowledge of the presence of complainant in the said meeting does not change the circumstances of the case. Complainant admitted that he met respondent accompanied by David Uy; however, he did not make any comment on Atty. Yaps presence thereat; he insisted that respondent extorted money from him; that respondent abused the rules of procedure when he filed actions for damages before the DOJ and erroneously applied for the issuance of a hold departure order before the Regional Trial Court. Atty. Jose Justo Yap who admitted that he was present during the meeting that transpired between David Uy and the respondent on Feb. 14, 2006 and he corroborated in all material respects respondents narration of what actually transpired during the said meeting in a filed affidavit. Investigating Commissioner Rebecca Maala of the IBP submitted a recommendation that respondent be suspended for a period of four months from the practice of law and as a member of the Bar. Stating that filing of two cases before the DOJ seeking for an award of damages demonstrates ignorance of the law and illustrates his intention to harass complainant; that the erroneous application for the hold departure order likewise exemplifies his ignorance of the law considering that no Information has been filed in Court. She also stated that in regards to the issue of extortion no sufficient evidence was presented by both parties as to which of them is telling the truth. Hence the petition submitted by the respondent. Issues: Whether or not the respondents actions warrant a suspension from the practice of law? Whether or not the respondent violated the canons of Professional Responsibility?

Held: No, Maalas statement of there being no evidence on record does not take into account the Affidavit of Atty. Justo Yap, which corroborated respondents narration of what actually transpired during the February 14, 2006 meeting. Facts showed that complainant instigated the meeting and not the respondent. Complainant never denied ownership of the seized items. He did not present an affidavit from David Uy who was he said representative to substantiate his claims nor did he rebut or deny Atty. Yaps presence during the meeting and also failed to deny the allegations of Atty. Yap in his affidavit. There was also no allegation that respondent was acquainted to complainant or David Uy prior to the meeting. Thus, it would unlikely for respondent who allegedly met complainant for the first time, to immediately demand money from him, more so in the presence of the NBI Chief of the Intellectual Property Rights Division. It would also be unlikely that respondent, as counsel for ASSI, could unilaterally decide to desist from filing criminal charges against herein complainant without consultation or prior approval of his clients, Gucci and LV. Viewed against complainants bare and self-serving allegation that respondent extorted money from him, the foregoing clearly proves that no such extortion took place. Respondent did not violate the canons of professional responsibility by filing the DOJ complaints; respondent was only taking the next step which in his opinion was the most logical remedy in protecting the interests of Gucci and LV. There is nothing on record to show that the filing of the cases was done for the purpose of harassment. If at all, it was an error of judgment sans bad faith and the same does not merit respondents disbarment or suspension. It has been held that not all mistakes of members of the Bar justify the imposition of disciplinary actions. An attorney-at-law is not expected to know all the law. For an honest mistake or error, an attorney is not liable. The alleged errors are not of such nature which would warrant the imposition of the penalty of suspension for one year. -Canon 1 states that a lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and for legal processes. And rule 1.01 which states that A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. -Canon 10 states that a lawyer owes candor, fairness and good faith to the court. And rule 10.03 which states that A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice. WHEREFORE, the instant complaint filed against Atty. F.D. Nicolas B. Pichay is DISMISSED for lack of merit.

SO ORDERED.