[A.C. No. 6025. July 26, 2006]

ONGKIKO KALAW MANHIT & ACORDA LAW OFFICES (REPRESENTED BY ITS MANAGING PARTNER, ATTY. MARIO E. ONGKIKO) AND VIRGINIA S. DIO, COMPLAINANTS versus ATTY. JOE FRANK E. ZUÑIGA, RESPONDENT

Third Division

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated JULY 26, 2006.

A.C. No. 6025 (Ongkiko Kalaw Manhit & Acorda Law Offices (Represented by its Managing Partner, Atty. Mario E. Ongkiko) and Virginia S. Dio, Complainants versus Atty. Joe Frank E. Zuñiga, Respondent)

x ------------------------------------------------------------------------------------------------------------------------- x

RESOLUTION

Before us is a verified complaint[1] of the law firm Ongkiko Kalaw Manhit and Acorda Law Offices and Virginia S. Dio charging respondent Atty. Joe Frank E. Zuñiga with breach of professional ethics and violation of his oath of office.

Respondent was counsel for the plaintiff in Civil Case (SEC) Case No. 7572 entitled "Subic Bay Marine Exploratorium Inc. (SBMEI), represented by its Chairman and Chief Executive Officer Timothy Desmond v. Virginia S. Dio, Atty. Winston M. Ginez and HS Equities Ltd.," which was pending before the Regional Trial Court of Balanga, Bataan, Branch 2. Complainant law firm was the legal counsel of the defendant in said case, complainant Virginia S. Dio.

On December 13, 2002, during the trial of Civil Case (SEC) Case No. 7572, the parties entered into an agreement that for a period of four months the defendants shall not, inter alia, disrupt the negotiations of SBMEI with its various investors.[2]

The trial court noted the agreement on December 16, 2002, and enjoined the parties to strictly comply with the terms of said agreement.[3] Subsequently, however, complainants learned that respondent and his client, Timothy Desmond, had filed a complaint-affidavit for libel[4] against complainant Virginia Dio four days before entering into the said agreement. Complainants also discovered that respondent had stated at the preliminary investigation of the libel case that complainant Virginia Dio's address was "Pacific Ace Building, Triboa Bay, Subic Bay Freeport Zone" even though respondent knew fully well that such was not complainant Dio's address.

On May 5, 2003, complainants filed the instant complaint against respondent. Complainants charge that respondent deliberately and in bad faith withheld from them during the negotiations for the agreement that his client had filed a libel case against complainant Dio. Complainants allege that said fact was material to them and that had they known of the filing of the libel case, they would not have entered into the agreement. They thus charge respondent with dishonesty and lack of candor.[5]

Complainants, in addition, charge respondent of violating his oath of office. They allege that as early as November 2002, respondent knew that complainant Dio resides in Hong Kong because said fact was clearly stated in the two pleadings which she had filed in Civil Case (SEC) Case No. 7572. In fact, in her reply in said case, she attached a copy of her certificate of residency[6] clearly stating her address in Hong Kong. Despite this knowledge, however, respondent maliciously indicated a wrong address in the Memorandum for Preliminary Investigation[7] to deprive her of an opportunity to contest the charges of libel against her.[8]

On September 12, 2003, respondent filed his comment denying the charges against him. He stresses that the filing of the libel case was a legal strategy which he was under no obligation to divulge to the opposing counsel. Moreover, the agreement entered into in Civil Case (SEC) Case No. 7572 pertained to an intra-corporate dispute and was therefore totally alien to the libel case which is personal to Timothy Desmond.[9]

As regards complainant Dio's address, respondent asserts that complainant Dio has been using the Pacific Ace Building address in Subic Bay Freeport Zone. According to him, complainant Dio's electronic mail (email) address VSD@pacificace.com, which she has used to email Timothy Desmond in the past, clearly shows that her emails originated from said building.[10] He stresses that complainants have used as attachment in one case an envelope which had been sent to complainant Dio at said address and averred that she received the notice of special stockholder's meeting contained in said envelope. Additionally, in her motion to recall warrant of arrest, which she filed at the Regional Trial Court of Bataan, Branch 1, complainant Dio herself had stated that she received the copy of the Resolution of the Prosecutor's Office which was also sent to her at said address.[11]

On October 8, 2003, complainants filed a reply. They stress that respondent has admitted withholding vital information regarding the filing of the libel case and should thus be held liable for deception. They also point out that the word "pacificace" in the email address is a website and has nothing to do with the origin of complainant Dio's emails to Timothy Desmond.[12] The envelope containing the notice of a special stockholder's meeting which was sent to complainant Dio and which was attached to a complaint which she had filed, did not prove that she held office in said building. Complainants also clarified that the Resolution from the Prosecutor's Office was not received by complainant Dio, but by a certain Shirley Caiga who swore that she is not an employee of Pacific Ace nor is she authorized to receive communication in behalf of complainant Dio.[13]

On November 12, 2003, respondent filed a rejoinder reiterating his defenses. Complainants, for their part, filed a surrejoinder containing a repetition of their charges.[14]

On November 17, 2003, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.[15]

On April 27, 2006, the Board of Governors of the IBP passed Resolution No. XVII-2006-222 finding respondent liable for submitting a wrong and false address of complainant Virginia Dio when he had been previously informed of the correct address and imposing on respondent the penalty of reprimand.

After a careful review of the records of this case, we find the penalty of reprimand appropriate.

It is clear from the records that respondent never knew for certain whether complainant Dio resides or holds office at the Pacific Ace Building in Triboa Bay, Subic Bay Freeport Zone. He merely presumed that complainant Dio either resided or held office in said place. He mistakenly assumed that emails sent through the email address VSD@pacificace.com meant that said emails originated from the Pacific Ace Building, not knowing that an email address is a mere address in cyberspace and has no actual physical location. He also mistakenly relied on the address indicated on an envelope which had been used as attachment by complainants in one case.

But while respondent was not shown to have acted in bad faith or any intent to deprive complainant Dio of a chance to refute the charges of libel against her, his carelessness in ascertaining the latter's correct address is inexcusable. Respondent is reminded that his duty to represent the interest of his client Timothy Desmond in the libel case is no license for him to be careless. A lawyer's duty not to do any falsehood, nor consent to the doing of any in court and not to allow the court to be mislead by any artifice applies equally well at preliminary investigation or anywhere a lawyer exercises his profession. In this case, a copy of complainant Dio's certificate of residence in Hong Kong has been attached in her reply in Civil Case (SEC) Case No. 7572 and received by respondent. Thus, respondent could have ascertained her correct address had he simply been more careful. His carelessness, though in good faith, deserves a reprimand.

The other charge of deception and breach of professional ethics for allegedly withholding vital information from opposing counsel is dismissed for lack of merit. Respondent was under no legal obligation to divulge to opposing counsel that his client had filed a libel case against complainant Dio. There is likewise no showing that respondent acted with malice and an intent to deceive when he chose not to divulge his legal strategies to complainant law firm, who though having been informed of an earlier threat that such a case would be filed, never asked respondent if said threat had been made good.

WHEREFORE, respondent Atty. Joe Frank E. Zuñiga is REPRIMANDED. He is admonished henceforth to exercise greater care and diligence in the performance of his duties towards his clients and the courts and warned that repetition of the same or similar offense will be more severely dealt with.

SO ORDERED.

Very truly yours,

(Sgd.) LUCITA ABJELINA-SORIANO

Clerk of Court