Ethics Quamto 2018.pdf

University of Santo Tomas Faculty of Civil Law

LEGAL AND JUDICIAL ETHICS Questions Asked More Than Once

(QuAMTO 2018) *QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2018 Bar Exams. *Bar questions are arranged per topic in accordance with the bar syllabus released by the Supreme Court and were selected based on their occurrence on past bar examinations from 1987 to 2017.

ACADEMICS COMMITTEE EDREA JEAN V. RAMIREZ

SECRETARY GENERAL

ARIANNA LAINE T. SARMIENTO MARIA ANGELICA J. HADLOC MARIELLA A. MARASIGAN GENA MYRTLE P. TERRE

EXECUTIVE COMMITTEE

LAURISSE MARIE T. PERIANES JED NATHANIEL M. GONZALEZ

LAYOUT AND DESIGN

QUAMTO COMMITTEE MEMBERS MARHEN CASTRO MARIE ANGELICA HADLOC EDREA JEAN RAMIREZ ARIANNA LAINE SARMIENTO

ATTY. AL CONRAD B. ESPALDON ADVISER

QUAMTO (1987-2017) considered as having engaged in illegal practice of law. . The case against him will not prosper.

LEGAL ETHICS QUAMTO LEGAL ETHICS

Q: Evelyn, Luisa. Myra, Josefina, Pamela and Rose are bona fide members of the Philippine bar. They agree to form a close corporation to be named LEGALCARE the principal purpose of which is “to provide clients legal services, research and advice as well as trial advocacy for a fee." The services shall be rendered not only by these enterprising pioneers of LEGALCARE but also by lawyers to be employed by the projected corporation on regular monthly salary basis.

Q: What do you understand by Legal Ethics? Discuss its importance and state its sources. A: Legal ethics is that branch of moral science which treats of the duties that an attorney owes to the court, to his client, to his colleagues, in the profession, and to society. The sources of legal ethics are the Constitution, the Rules of Court, some particular provisions of statutes, the Code of Professional Responsibility and Judicial decisions. Legal ethics is important in order to maintain a high moral standard for the lawyer in performing his duties as an officer of the court, his duties to his client, to the members of the legal profession as well as to society. Lawyers wield so much power and influence in society. Unless their acts are regulated by high norms of ethical conduct they are likely to abuse them.

May LEGALCARE be legally incorporated? Discuss fully. (1995 Bar) A:A corporation cannot engage in the practice of law even by hiring lawyers to perform legal work. It has been held that only a natural person can engage in the practice of law. A lawyer is burdened with peculiar duties and responsibilities. A corporation cannot take an oath of office, be an officer of the court or subjected to court discipline: it cannot engage in law practice directly, it cannot evade the requirements by employing competent lawyers to practice for it (Matter of Cooperative Law Co., N.Y. 579). Hence, LEGALCARE cannot be legally incorporated because the principal purpose involves the practice of law.

PRACTICE OF LAW (RULE 138) Definition of the practice of law Q: Atty. Yabang was suspended as a member of the Bar for period of one (1) year. During the period of suspension, he was permitted by his law firm to continue working in their office, drafting and preparing pleadings and other legal documents, but was not allowed to come into direct contact with the firms’ clients. Atty. Yabang was subsequently sued for illegal practice of law. Would the case prosper? Explain. (2005 Bar)

Practice of law is a privilege, not a right Q: Is the practice oflaw a right or a privilege? Discuss fully. (1995 Bar) A:The practice of law is basically a privilege because it is limited to persons of good moral character with special qualifications duly ascertained and certified (5 Am. Jur. 270). Thus, only those persons are allowed to practice law, who by reason of attainments previously acquired through education and study, have been recognized by the courts as possessing profound knowledge of legal science. Attorneys are the court’s constituency - to aid it in the administration of justice (Dodge v. State, 38 NE 745).

A:The Supreme Court has defined the practice of law as any activity in or out of court, which requires the application of law, legal principle, practice or procedure and calls for legal knowledge, training and experience (Cayetano vs. Monsod, 201 SCRA 210 [1991]). Based on this definition, the acts of Atty. Yabang of preparing pleadings and other legal documents would constitute practice of law. More so, if his activities are for the benefit of his law firm, because the employment of a law firm is the employment of all the members thereof. The case against him will prosper.

Law as a profession, not a business or trade Q: Why is law a profession and not a trade? (2006 Bar) A: Law is a profession and not a trade because its basic ideal is to render public service and secure justice for those who seek its aid. The gaining of a livelihood is only a secondary consideration.

ALTERNATIVE ANSWER: The traditional concept of practice of law requires the existence of a lawyer-client relationship as a requisite. Pursuant to this concept, inasmuch as Atty. Yabang was not allowed by his law firm to come into direct contact with the firm’s clients during the period of his suspension, he cannot be

Q: You are the managing partner of a law firm. A new foreign airline company, recently granted rights by the Civil

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Aeronautics Board at the NAIA, is scouting for a law firm which could handle its cases in the Philippines and provide legal services to the company and its personnel. After discussing with you the extent of the legal services your law firm is prepared to render, the general manager gives you a letter-proposal from another law firm in which its time-billing rates and professional fees for various legal services are indicated. You are asked to submit a similar letter-proposal stating your firm's proposed fees. The airline company's general manager also tells you that, if your proposed fees would at least be 25 per cent lower than those proposed by the other firm, you will get the company's legal business. How would you react to the suggestion? (1997 Bar)

may result to loss of respect to lawyers as a whole. The use of a makeshift hut standing alone would create the impression that the lawyer does not have a permanent address which is required to be stated in all pleadings he signs as well as required to be shown in documents he notarizes. His shingle shows that he has considered the law profession as a business. He should have a separate shingle for his copier services business. When he included in his shingle the phrases “Specialist in Small Claims” and “Fastest in Notarization,”he has transgressed the rule that a lawyer in making known his legal services shall use only dignified information or statement of facts (Code of Professional Responsibility, Canon 3). So also the norm that a lawyer shall not use or permit the use of any misleading, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services (Ibid., Canon 3, Rule 3.01).

A:I will emphasize to the General Manager that the practice of law is a profession and not a trade. Consequently, I will not propose a lower fee just for the sake of competing with another firm. Because such practice smacks of commercialism. Moreover, Rule 2. 04 of the Code of Professional Responsibility provides that a lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant. I will charge fees that will be reasonable under the circumstances.

The use of the phrases “Specialist in Small Claims”and “Fastest in Notarization”is misleading advertisement because they are likely to create an unjustified expectation about the results the lawyer can achieve or implies that the lawyer can achieve results by improper means (ABA Model Rule 7.1.b).

Q: As a new lawyer, Attorney Novato started with a practice limited to small claims cases, legal counseling, and notarization of documents. He put up a solo practice law office and was assisted by his wife who served as his secretary/helper. He used a makeshift hut in a vacant lot near the local courts and a local transport regulatory agency. With this strategic location, he enjoyed heavy patronage assisting walk-in clients in the preparation and filing of pleadings and in the preparation and notarization of contracts and documents, and charges a reasonable fee for the service. He draws electric power from an extension wire connected to an adjoining small restaurant. He put up a shingle that reads: “Atty. Novato, Specialist in Small Claims, Fastest in Notarization; the Be stand Cheapest in Copier Services.”

Q: Cite some of the characteristics of the legal profession which distinguish it from business. (2015 Bar) A: The primary characteristics which distinguish the legal profession from a business are: 1.

2.

3.

Is Atty. Novato’s manner of carrying out his professional practice –i.e., mixing business with the practice of law, announcing his activities via a shingle and locating his office as above-described – in keeping with appropriate ethical and professional practice? (2013 Bar)

4.

Qualifications for admission to the Bar

A: No. Atty. Novato’s manner of carrying out his professional practice is not in keeping with appropriate ethical and professional practice. He has degraded the law profession, which

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a duty of public service of which emolument is a by-product and in which one may attain the highest eminence without making much money; a relation as officer of the court to the administration of justice involving thorough sincerity, integrity and reliability; a relation to client in the highest degree fiduciary; A relation to colleagues characterized by candor, fairness and unwillingness to resort to current business methods of advertising and encroachment on their, or dealing directly with their clients (In Re Sycip, 92 SCRA 1).

Q: Upon learning from newspaper reports that bar candidate Vic Pugote passed the bar examinations. Miss Adorable immediately lodged a complaint with the

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QUAMTO (1987-2017) Supreme Court, praying that Vic Pugote be disallowed from taking the oath as a member of the Philippine Bar because he was maintaining illicit sexual relations with several women other than his lawfully wedded spouse. However, from unexplained reasons, he succeeded to take his oath as a lawyer. Later, when confronted with Miss Adorable’s complaint formally, Pugote moved for its dismissal on the ground that it is already moot and academic.

The following additional objection should not result to a deduction nor should an absence of the additional objection also result to a deduction. a.

b.

Should Miss Adorable’s complaint be dismissed or not? Explain briefly. (2004 Bar)

c.

A: It should not be dismissed. Her charge involves a matter of good moral character which is not only a requisite for admission to the Bar, but also a continuing condition for remaining a member of the Bar. As such, the admission of Vic Pugote to the Bar does not render the question moot and academic.

If light threats would be filed against him, then another potential objection would be the pendency of charges against him, involving moral turpitude (Rules of Court, Rule 138, Sec. 2). The question states, “Under these facts, list and justify the potential objections that can be made against Jactar’s admission to the practice of law.” The question requires that an assumption be made that Jactar has passed the Bar Examination and is about to take his oath as an attorney. It is suggested that the better question should have been: “Under these facts, list and justify the potential objections that can be made against Jactar’s being admitted to take the Bar Examination.”

Q: Prior to his admission to the freshman year in a reputable law school, bar examinee A was charged before the Municipal Trial Court with damage to property through reckless imprudence for accidentally sideswiping a parked jeepney. The case was amicably settled with A agreeing to pay the claim of the jeepney owner for P1,000.00. In his application to take the 1997 Bar Examinations, A did not disclose the above incident. Is he qualified to take the Bar Examinations? (1997, 2005 Bar)

Q: Miguel Jactar, a fourth year law student, drove his vehicle recklessly and hit the rear bumper of SimplicioMedroso’s vehicle. Instead of stopping, Jactar accelerated and sped away. Medroso pursued Jactar and caught up with him at an intersection. In their confrontation, Jactar dared Medroso to sue, bragged about his connections with the courts, and even uttered veiled threats against Medroso. During the police investigation that followed, Medroso learned that Jactar was reviewing for the Bar examinations. Under these facts, list and justify the potential objections that can be made against Jactar’s admission to the practice of law. (2013 Bar)

A: Rule 7.01 of the Code of Professional Responsibility provides that “a lawyer shall be answerable for knowingly making a false statement or suppressing a material fact in connection with his application for admission to the bar”. In the case of In Re: Ramon Galang, 66 SCRA 245, the respondent repeatedly omitted to make mention of the fact that there was a pending criminal case for slight physical injuries against him in all four (4) applications for admission to take the bar examinations. He was found to have fraudulently concealed and withheld such fact from the Supreme Court and committed perjury. The Supreme Court cited the rule that “the concealment of an attorney in his application to take the bar examinations of the fact that he had been charged with, or indicted for, an alleged crime, is a ground for revocation of his license to practice law.”

A: The potential objection that can be made against Jactar’s admission to the practice of law is the absence of good moral character (Rules of Court, Rule 138, Sec. 2). Jactar’s bragging about his connection with the courts and uttering veiled threats against Medroso are indications of his lack of good moral character. His acts are contrary to justice, honesty, modesty or good morals (In Re Basa, 41 Phil. 276). He has acted in a manner that has violated the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man (Tak Ng v. Republic, G.R. No. L-13017, 106 Phil. 730, December 23, 1959).

A’s failure to disclose that he had been charged with damage to property through reckless imprudence in his application for admission to the bar examinations disqualifies him. It does not matter that the offense charged does not involve moral turpitude or has been amicably settled. When the applicant concealed a charge of a crime against him but which crime does not involve moral turpitude, this concealment

NOTE: Any answer which explains the nature of absence of good moral character should be given full credit.

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Legal and Judicial Ethics

nevertheless will be taken against him. It is the fact of concealment and not the commission of the crime itself that makes him morally unfit to become a lawyer (In Re: Ramon Galang, A.C. No. 1163, August 29, 1975). Q: Does the legislature have the power to regulate admission to the bar and the practice of law? Discuss fully. (1995 Bar)

b.

A: Congress under the 1987 Constitution has no power to regulate admission to the Bar and the practice of law. Unlike the 1935 and 1973 Constitutions, the 1987 Constitution no longer provides for the power of the legislature to repeal, alter and supplement the rules promulgated by the Supreme Court. Under the 1935 Constitution, the legislature had the power to repeal, alter the rules promulgated by the Supreme Court although the power and the responsibility to admit members of the bar resides in the Supreme Court (In Re: Cunanan, 50 OG 1602). Under the 1987 Constitution however, the Supreme Court has the exclusive power to promulgate rules concerning the enforcement of rights, pleadings and practice and procedures of all courts and the admission to the practice of law (See Art. 8. Section 5, subpar. 3-5).

c. d.

e.

ALTERNATIVE ANSWER: Agpalo has pointed out that the legislature, in the exercise of police power, may enact laws regulating the practice of law to protect the public and promote public welfare, but it may not pass a law that will control the Supreme Court in the performance of its function to decide who may be admitted into the practice of law (Agpalo, Legal Ethics, 5th Edition, p. 5). Constitutional Commissioner Joaquin C. Bemas also submits that the matter stays as if the 1935 and 1973 provisions had been re-enacted (Bernas, The Constitution of the Republic of the Philippines. 1992 ed., Vol. II. p. 293).

f.

Q: What is the student practice rule? (2009 Bar) A: The Student Practice Rule (Rule 138-A) is the Rule authorizing a law student who has successfully completed his 3rd year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school’s clinical legal education program approved by the Supreme Court, to appear without compensation in any civil, criminal or administrative case before any trial court, tribunal or board or officer, to represent indigent clients accepted by the legal clinic of the law school, under the direct supervision and control of a member of the IBP accredited by the law school.

APPEARANCE OF NON-LAWYERS Law student practice rule (Rule 18-A) Q: Enumerate the instances when a law student may appear in court as counsel for a litigant. (2006 Bar) A: a.

Non-lawyers in courts

Under the Student Practice Rule, a law student who has successfully completed his third year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school’s clinical legal education program approved by the Supreme court, may appear without compensation in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to represent indigent clients accepted by the legal clinic

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of the law school, under the direct supervision and control of a member of the Integrated Bar of the Philippines if he appears in a Regional Trial Court, and without such supervision if he appears in an inferior court (Bar Matter 730, June 10, 1997); When he appears as an agent or friend of a litigant in an inferior court (Sec. 34, Rule 138, Revised Rules of Court); When he is authorized by law to appear for the Government of the Philippines (Sec. 33, Rule 138, Revised Rules of Court); In remote municipalities where members of the bar are not available, the judge of an inferior court may appoint a non-lawyer who is a resident the province and of good repute for probity and ability, to aid the defendant in his defense (Sec. 4, Rule 116, Revised Rules of Court); A law student may appear before the National Labor Relations Commission or any Labor Arbiter if (a) he represents himself, as a party to the case, (b) he represents an organization or its members with written authorization from them, or (c) he is a duly-accredited member of any legal aid office duly recognized by the Department of Justice or the Integrated Bar of the Philippines in cases referred to by the latter (Art. 222, Labor Code;Kanlaon Construction Enterprises Co., Inc. v. NLRC, 279 SCRA 337 [1997]); and Under the Cadastral Act, a non-lawyer may represent a claimant before the Cadastral Court (Sec. 8, Act No.2250).

Q: Generally, only those who are members of the bar can appear in court. Are there exceptions to this rule? Explain (1996 Bar) A: The exceptions to the rule that only those who are members of the bar can appear in court are the following:

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QUAMTO (1987-2017) a. b. c.

d.

e.

f.

g.

In the municipal trial court, a party may conduct his litigation in person or with the aid of an agent or friend (Sec. 34. Rule 138). In any other court, a party may conduct his litigation personally (Id.) In criminal proceedings before a municipal trial court in a locality where a duly licensed member of the bar is not available, the court may in its discretion admit or assign a person, resident of the province and of good repute for probity and ability, to aid the defendant in his defense, although the person so assigned is not a duly authorized member of the bar (Sec. 4. Rule 116). Any official or other person appointed or designated in accordance with law to appear for the Government of the Philippines shall have all the rights of a duly authorized member of the bar to appear in any case in which said government has an interest direct or indirect (Sec. 33. Rule 138). A senior law student who is enrolled in a recognized law school’s clinical education program approved by the Supreme Court may appear before any court without compensation to represent indigent clients accepted by the Legal Clinic of the law school (Rule 138-A). Non-lawyers may appear before the NLRC or any Labor Arbiter if they represent themselves or their labor organization or members thereof (Art. 222, Labor Code). Under the Cadastral Act, a non-lawyer can rep-resent a claimant before the Cadastral Court (Sec. 9. Act. 2259).

was not a member of the bar and suggested that for his own protection, A should engage the services of a counsel duly accredited as a member of the Bar. The Judge intimated his willingness to reset the hearing of the case to another day to enable plaintiff to engage the services of counsel. Plaintiff replied he could manage to prosecute his own case, it being but a simple case for collection of sum of money. If you were the Judge, will you allow A to continue prosecuting his case by himself alone? (1999 Bar) A: Section 34, Rule 138 of the Rules of Court provides that in a Regional Trial Court, a party may conduct his litigation personally or by aid of an attorney, and his appearance must be either personal or by a duly authorized member of the bar. Hence, if I were the Judge, I will allow A to continue prosecuting his case alone, but I will warn him about the risks involved in his doing so because of his lack of knowledge of law and legal procedure. ALTERNATIVE ANSWERS: a.

b.

Q: A, a mere high school graduate, with the aid of a friend who is a college undergraduate, filed a complaint for recovery of a sum of money in the amount of Four Thousand (P4, 000.00) Pesos in the Metropolitan Trial Court of his town. The Clerk of Court told A that his complaint might be dismissed for insufficiency as to form because neither he nor his friend who is assisting him is a lawyer. Is the Clerk of Court correct? (1999 Bar)

If I were the Judge, I will not allow A to prosecute his case. Although he is a law graduate, it does not appear that he is familiar with procedural law, having filed the case with the RTC which has no jurisdiction over the case in view of the amount involved. The judge is duty bound to see to it that there is no miscarriage of justice. No. I shall dismiss the case for lack of jurisdiction because the amount of P50.000.00 is within the jurisdictional ambit of the Municipal Trial Court. Consequently, A could not continue prosecuting the case.

Non-lawyers in administrative tribunals Q: Raul Catapang, a law graduate and vicepresident for labor relations of XYZ Labor Union, entered his appearance as representative of a member of the union before the Labor Arbiter in a case for illegal dismissal, unpaid wages and overtime pay. Counsel for the Company objected to Raul’s appearance and moved for his disqualification on the ground that he is not a lawyer. If you were the Labor Arbiter, how would you resolve the motion? Why? (2002 Bar)

A: The Clerk of Court is not correct. In the Justice of the Peace courts (now known as Municipal Trial Court or Municipal Circuit Trial Courts or Metropolitan Trial Court), a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney (Sec. 34, Rule 138, Rules of Court).

A: I will deny the motion to disqualify Raul. Article 222 of the Labor Code authorizes nonlawyers to appear before the National Labor Relations Commission or any Labor Arbiter in representation of their organization or members thereof.

Q: A, a law graduate but has not passed the bar examination, filed a Complaint in the Regional Trial Court for recovery of Fifty Thousand (P50, 000.00) Pesos owed him by B. At the hearing of the case after Answer was filed, A appeared by himself alone and without counsel to prosecute his case. The defendant pointed out to the Court that A

SANCTIONS FOR PRACTICE OR APPEARANCE WITHOUT AUTHORITY

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Regional Trial Court. F later complained that he did not authorize Atty. E to appear for him. F moved that the court suspend Atty. E from the practice of law. May the judge grant the motion? Explain. (2000 Bar)

Lawyers without authority Q: A. The Supreme Court suspended indefinitely Atty. Fernandez from the practice of law for gross immorality. He asked the Municipal Circuit Trial Court Judge of his town if he can be appointed counsel de officio for Tony, a childhood friend who is accused of theft. The judge refused because Atty. Fernandez’s name appears in the Supreme Court’s List of Suspended Lawyers. Atty. Fernandez then inquired if he can appear as a friend for Tony to defend him. If you were the judge, will you authorize him to appear in your court as a friend for Tony?

A: The judge may grant the motion. Unauthorized appearance is a ground for suspension or disbarment (Sec. 27, Rule 138, Rules of Court). ALTERNATIVE ANSWER: It depends. A lawyer’s appearance for a party without the authority of the latter must be willful, corrupt or contumacious in order that he may be held administratively liable therefor. But if he has acted in good faith, the complaint for suspension will fail (Garrido v. Qutsumbing, 28 SCRA 614 [1969]).

B. Supposing Tony is a defendant in a civil case for collection of sum of money before the same court, can Atty. Fernandez appear for him to conduct his litigation? (2006 Bar)

PUBLIC OFFICIALS AND THE PRACTICE OF LAW Prohibition or disqualification of former government attorneys Q: Atty. Herminio de Pano is a former Prosecutor of the City of Manila who established his own law office after taking advantage of the Early Retirement Law. He was approached by Estrella Cabigao to act as private prosecutor in an estafa case in which she is the complainant. It appears that said estafa case was investigated by Atty. de Panowhen he was still a Prosecutor. Should Atty. de Pano accept employment as private prosecutor in said estafa case? Explain. (1992 Bar)

A: A. I will not authorize him to appear as a friend of Tony. The accused in a criminal case is entitled to be represented by legal counsel, and only a lawyer can be appointed as counsel de officio. Although a municipal trial court may appoint a person of good refute to aid the accused as counsel de officio in his defense, this is applicable only where members of the bar are not present (Sec. 4, Rule 116, Revised Rules of Court). Necessarily, the friend referred to one who is not a lawyer. Atty. Fernandez is a lawyer but under indefinite suspension. He should not be allowed to practice law even as a counsel de officio.

A:Atty. de Pano should not accept the employment as private prosecutor as he will be violating Canon 6, Rule 6.03 of the Code of Professional Responsibility which provides that a lawyer shall not, after leaving government service, accept employment in connection with any matter in which he had intervened while in said service.

B. Even if Tony is a defendant in a civil case, Atty. Fernandez cannot be allowed to appear for him to conduct his litigation; otherwise, the judge will be violating Canon 9 of the Code of Professional Responsibility which provides that "a lawyer shall not, directly or indirectly, assist in the unauthorized practice of law.

Q: Lawyer U, a retired Tanodbayan prosecutor, now in the private practice of law entered his appearance for and in behalf of an accused in a case before the Sandiganbayan. The prosecution moved for his disqualification on the ground that he had earlier appeared for the prosecution in the case and is knowledgeable about the prosecution's evidence, both documentary and testimonial. U contended that he merely appeared at the arraignment on behalf of the prosecutor assigned to the case who was absent at the time. Decide. (1991 Bar)

ALTERNATIVE ANSWERSTO 1 AND 2: Yes, if Atty. Fernandez was appointed by Tony. Even if Atty. Fernandez was suspended indefinitely, he may appear as an. agent or friend of Tony, the party litigant in the Municipal Trial Court, if Tony appoints him to conduct his case (Sec. 34, Rule 138, Revised Rules of Court, Cantimbuhan v. Cruz, Jr., 126 SCRA 190 [1983]).

A: Lawyer U should be disqualified from entering his appearance in this case even only for arraignment of the accused. His appearance

Q: Atty. E entered his appearance as counsel for defendant F in a case pending before the

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QUAMTO (1987-2017) is deemed to be appearing for conflicting interest.

firm refuse, I will disqualify the law firm. My reasons are as follows:

ALTERNATIVE ANSWER:

Article VI, Sec. 14 of the 1987 Constitution provides that “no Senator or Member of the House of Representatives may personally appear as counsel before any court of Justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies." What is prohibited is personal appearance of the Senator Atty. Cruz, and for as long as the Senator does not personally appear in court for Mercy Sanchez, the prohibition does not apply. Personal appearance includes not only arguing or attending a hearing of a case in court but also the signing of a pleading and filing it in court. Hence, the Senator should not allow his name to appear in pleadings filed in court by itself or as part of a law firm name, such as Reyes Cruz and Santos Law Offices, under the signature of another lawyer in the law firm, nor should he allow the firm name with his name therein to appear as counsel through another lawyer, without indirectly violating the constitutional restriction, because the signature of an agent amounts to a signing by the Senator through another lawyer is in effect his appearance, the office of attorney being originally one of agency, and because the Senator cannot do indirectly what the Constitution prohibits directly. The lawyer actually appearing for Mercy Sanchez should drop the name of Atty. Cruz from any pleading or from any oral appearance in court, otherwise the law firm could be disqualified. Moreover, Rule 6.02 of the Code of Professional Responsibility prohibits a lawyer in government from using his public position to promote or advance his private interests, and the Senator’s name appearing in pleadings or in appearances by other lawyers in the law firm may be misconstrued as indirectly influencing the judge to decide the case in favor of the law firm’s client, which can only be avoided by dropping the name of the Senator from the firm name whenever it appears in court.

Canon 36 provides that a lawyer, having once held public office or having been in public employ, should not, after his retirement, accept employment in connection with any matter he has investigated or passed upon while in such office or employ. The contention of U that he merely appeared at the arraignment on behalf of the absent prosecutor, is not enough. As a former Tanod-bayan prosecutor, he certainly had occasion to obtain knowledge about the prosecution’s evidence. Public officials who cannot practice law or can practice law with restrictions Q:A town mayor was indicted for homicide through reckless imprudence arising from a vehicular accident. May his father-in-law who is a lawyer and a Sangguniang Panlalawigan member represent him in court? Reason. (2000 Bar) A: Yes, his father-in-law may represent him in court. Under the Local Government Code (R.A. 7160), members of the Sanggunian may engage in the practice of law, except in the following: (1) they shall not appear as counsel before any court in any civil case wherein a local government unit or any office, agency or instrumentality of the government is the adverse party; (2) they shall not appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office; (3) they shall not collect any fee for their appearance in administrative proceedings including the local government unit of which he is an official; and (4) they shall not use property and personnel of the Government except when the Sanggunian member concerned is defending the interests of the government. In this case, the town mayor was indicted for homicide through reckless imprudence, an offense that is not related to his office.

ALTERNATIVE ANSWERS: a.

Q:In a civil case before the Regional Trial Court between Mercy Sanchez and Cora Delano, Sanchez engaged the services of the Reyes Cruz & Santos Law Offices. Delano moved for the disqualification of the Reyes Cruz & Santos Law Offices on the ground that Atty. Cruz is an incumbent senator. Rule on the motion with reasons. (1990 Bar)

b.

A:As a judge, I will require that the name of Atty. Cruz, an incumbent Senator, be dropped from any pleading filed in court or from any oral appearance for the law firm by any other member of the law firm, and should the law

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The motion to disqualify the Reyes Cruz and Santos Law Offices may not prosper as Article VI, Section 14 of the Constitution prohibits a Senator or Member of the House of Representatives to personally appear as counsel in any court of justice. If Attorney Cruz who is a Senator personally appears, he may be disqualified. I will deny the motion. The Constitution prohibits personal appearance by a member of Congress before the Courts but does not totally prohibit law practice. As long as the Senator does not personally or physically appear in court, there is no disqualification.

Legal and Judicial Ethics

Lawyers who are authorized to represent government

consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the courts as to my clients; and I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God.”

Q: From the viewpoint of legal ethics, why should it be mandatory that the public prosecutor be present at the trial of a criminal case despite the presence of a private prosecutor? (2001 Bar) A: The public prosecutor must be present at the trial of the criminal case despite the presence of a private prosecutor in order to see to it that the interest of the State is wellguarded and protected, should the private prosecutor be found lacking in competence in prosecuting the case. Moreover, the primary duty of a public prosecutor is not to convict but to see to it that justice is done (Rule 6.01, Code of Professional Responsibility). A private prosecutor would be naturally interested only in the conviction of the accused.

Q: What is the significance of lawyer's oath? (1996, 2003 Bar) A: “The significance of the oath is that it not only impresses upon the attorney his responsibilities but it also stamps him as an officer of the court with rights, powers and duties as important as those of the judge themselves. The oath of a lawyer is a condensed code of legal ethics. It is a source of his obligation and its violation is a ground for his suspension, disbarment or other disciplinary action" (Agpalo, Legal Ethics, 5th ed., p.59).

Q: Prosecutor Coronel entered his appearance on behalf of the State before a Family Court in a case for declaration of nullity of marriage, but he failed to appear in all the subsequent proceedings. When required by the Department of Justice to explain, he argued that the parties in the case were ably represented by their respective counsels and that his time would be better employed in more substantial prosecutorial functions, such as investigations, inquests and appearances in court hearings. Is Atty. Coronel’s explanation tenable? (2017, 2006 Bar)

Q: Section 20, Rule 138 of the Rules of Court enumerates nine (9) duties of attorneys. Give at least three (3) of them. (2000, 2007 Bar) A: Under Section 20, Rule 138, it is the duty of an attorney: 1.

A:Atty. Coronel’s explanation is not tenable. The role of the State’s lawyer in nullification of marriage cases is that of protector of the institution of marriage (Art 48, Family Code). “The task of protecting marriage as an inviolable social institution requires vigilant and zealous participation and not mere pro forma compliance" (Malcampo-Sin v. Sin, 355 SCRA 285 [2001]). This role could not be left to the- private counsels who have been engaged to protect the private interests of the parties.

2.

LAWYER’S OATH

5.

Q: The Lawyer’s Oath is a source of obligation and its violation is a ground for suspension, disbarment, or other disciplinary action. State in substance the Lawyer’s Oath. (2015, 2009 Bar)

6.

3.

4.

Answer: “I, ____________________________________________, having been permitted to continue in the practice of law in the Philippines, do solemnly swear that I recognize the supreme authority of the Republic of the Philippines; I will support its Constitution and obey the law as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor

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7.

8.

8

To maintain allegiance to the Republic of the Philippines; To maintain the respect due to the courts of justice and judicial officers; To counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law; To employ, for the purpose of maintaining the causes confided to him such means only as are consistent with truth and honor, and never seek to mislead the judge or any Judicial officer by an artifice or false statement of fact or law; To maintain inviolate the confidence, and at every peril to himself, to preserve the secret of his client, and to accept no compensation in connection with his client’s business except from him with his knowledge and approval; To abstain from all offensive personality, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged; Not to encourage either the commencement or the continuance of an action or proceeding or delay any man’s cause, from any corrupt motive or interest; Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed; and

QUAMTO (1987-2017) 9.

In the defense of a person accused of crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits, to the end that no person may be deprived of life or liberty, but by due process of law.

The signatures of Atty. Doblar on the pleadings for Eva and for Marla, constitute a certificate by him that he has read the pleadings; that to the best of his knowledge, information and belief there is good ground to support them; and that the pleadings were not interposed for delay (Rules of Court, Rule 7, Sec. 3, 2nd par.). Atty. Doblar could not claim he has complied with the foregoing requirement because he could not take a stand for Eva that is contrary to that taken for Marla. His theory for Eva clearly contradicts his theory for Marla. He has violated his professional responsibility mandated under the Rules of Court.

Q: State the duties of a lawyer imposed by the Lawyer’s oath (2016 Bar) A: The following are the duties of a lawyer imposed by the lawyer’s oath: 1. 2. 3. 4. 5.

6. 7.

8.

To maintain allegiance to the Republic of the Philippines; To support its Constitution; To obey the laws as well as the legal orders of the duly constituted authorities; To do no falsehood nor consent to the doing of the same in any court; Not to wittingly or willingly promote or sue any groundless, false or unlawful suit nor to give nor to consent to the doing of the same; To delay no man for money or malice; To conduct himself as a lawyer according to the best of his knowledge and discretion, with all good fidelity to the courts as to his clients; and To impose upon himself that voluntary obligation without any mental reservation or purpose of evasion.

He has likewise violated the ethical responsibility that his appearance in court should be deemed equivalent to an assertion on his honor that in his opinion his client’s case is one proper for judicial determination (Canons of Professional Ethics, Canon 30, 2nd par., last sentence). In counseling on the contradictory positions, Atty. Doblar has likewise counseled or abetted activities aimed at defiance of the law or at lessening confidence in the legal system (Code of Professional Responsibility, Canon 1, Rule 1.02) because conflicting opinions may result arising from an interpretation of the same law. Atty. Doblar could not seek refuge under the umbrella that what he has done was in protection of his clients. This is so because a lawyer’s duty is not to his client but to the administration of justice. To that end, his client’s success is wholly subordinate. His conduct ought to and must always be scrupulously observant of the law and ethics (Ernesto Pineda, LEGAL AND JUDICIAL ETHICS, 211 [1999], citing Maglasang v. People, G.R. No. 90083, October 4, 1990).

The Code of Professional Responsibility TO SOCIETY (CANONS 1-6) Respect for law and legal processes Q: Atty. Doblar represents Eva in a contract suit against Olga. He is also defending Marla in a substantially identical contract suit filed by Emma. In behalf of Eva, Atty. Doblar claims that the statute of limitations runs from the time of the breach of the contract. In the action against Marla, Atty. Doblar now argues the reverse position – i.e. that the statute of limitation does not run until one year after discovery of the breach.

Any means, not honorable, fair and honest, which is resorted to by the lawyer, even in the pursuit of his devotion to his client’s cause, is condemnable and unethical (Ibid.). Q: Atty. Asilo, a lawyer and a notary public, notarized a document already prepared by spouses Roger and Luisa when they approached him. It is stated in the document to Roger and Luisa formally agreed to live separately from each other and either one can have a live-in partner with full consent of the other. What is the liability of Atty. Asilo, if any? (1998 Bar)

Both cases are assigned to Judge Elrey. Although not the sole issue in the two cases, the statute of limitations issue is critical in both. Is there an ethical/professional responsibility problem in this situation? If a problem exists, what are its implications or potential consequences? (2013 Bar)

A: Atty. Asilo may be held administratively liable for violating Rule 1.02 of the Code of Professional Responsibility - a lawyer shall not counsel or abet activities aimed defiance of the law or at lessening confidence in the leg system. An agreement between two spouses to live separately from each other and either one could have a live-in partner with full consent of the other, is contrary to law and morals. The

A: Yes. There is an ethical/professional responsibility problem that results from the actuation of Atty. Doblar in arguing the reverse positions.

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Legal and Judicial Ethics

ratification by a notary public who is a lawyer of in illegal or immoral contract or document constitutes malpractice or gross misconduct in office. He should at least refrain from its consummation (In Re Santiago, 70 Phil. 661 Panganiban v. Borromeo; 58 Phil. 367, In re Bucana, 72 SCRA 14).

Q: Facing disciplinary charges for advertising as a lawyer, Atty. A argues that although the calling card of his businessman friend indicates his law office and his legal specialty, the law office is located in his friend’s store. Decide. (2001 Bar)

Q: Atty. XX rented a house of his cousin JJ on a month-to-months basis. He left for a 6month study in Japan without paying his rentals and electric bills while he was away despite JJ’s repeated demands.

A: This appears to be a circumvention of the prohibition on improper advertising. There is no valid reason why the lawyer’s businessman friend should be handling out calling cards which contains the lawyer’s law office and legal specialty, even if his office is located in his friend’s store. What makes it more objectionable is the statement of his supposed legal specialty. It is highly unethical for an attorney to advertise his talents or skill as a merchant.

Upon his return to the Philippines, Atty. XX still failed to settle his rental arrearages and electric bills, drawing JJ to file an administrative complaint against Atty. XX. Atty. XX contended that his non-payment rentals and bills to his cousin is a personal matter which has no bearing on his profession as a lawyer and, therefore, he did not violate the Code of Professional Responsibility.Is Atty. XX’s contention in order? Explain. (2010 Bar)

Q: A Justice of the Supreme Court, while reading a newspaper one weekend, saw the following advertisement:

ANNULMENT OF MARRIAGE

A: No. In a case involving the same facts, the Supreme Court held that having incurred just debts, a lawyer has a moral duty and legal responsibility to settle them when they become due. “Verily, lawyers must at all times faithfully perform their duties to society, to the bar, to the court and to their clients. As part of their duties, they must promptly pay their financial obligations” (Wilson Cham v. Atty. Eva Pata-Moya, 556 SCRA 1 [2008]).

Competent Lawyer Reasonable Fee Call 221-2221 The following session day, the Justice called the attention of his colleagues and the Bar Confidant was directed to verify the advertisement. It turned out that the number belongs to Attorney X, who was then directed to explain to the court why he should not be disciplinarily dealt with for the improper advertisement. Attorney X, in his answer, averred that (1) the advertisement was not improper because his name was not mentioned in the ad; and (2) he could not be subjected to disciplinary action because there was no complaint against him. Rule on Attorney X’s contention. (2017, 2003, 1998 Bar)

True, honest, fair, dignified and objective information on legal services Q: A lone law practitioner Bartolome D. Carton, who inherited the law office from his deceased father Antonio C. Carton, carries these names:“Carton& Carton Law Office.” Is that permissible or objectionable? Explain. (2001, 1996, 1994 Bar) A: Rule 3.02 of the Code of Professional Responsibility provides as follows: “In the choice of a firm name, no false, misleading or assumed name shall be used; the continued use of the name of deceased partner is permissible provided that the firm indicates in all its communications that the partner is deceased.” Since Atty. Antonio C. Carton is a solo practitioner, it is improper for him to use the firm name “Carton & Carton Law Office”, which indicates that he is and/or was in partnership with his father. Even if he indicates in all his communication that his father is already dead, the use of the firm name is still misleading because his father was never his partner before. A lawyer is not authorized to use in his practice of profession a name other than the one inscribed in the Roll of Attorneys.

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A: The advertisement is improper because it is a solicitation of legal business and is tantamount to self-praise by claiming to be a “competent lawyer”. The fact that his name is not mentioned does not make the advertisement proper. His identity can be easily determined by calling the telephone number stated. In the case of Ulep v. Legal Clinic, Inc., 223 SCRA 378, the Supreme Court found a similar advertisement to be improper is spite of the fact that the name of a lawyer was also not mentioned. A complaint is not necessary to initiate disciplinary action against a lawyer. In Sec. 1,

10

QUAMTO (1987-2017) Rule 139-B of the Rules of Court, disciplinary action against a lawyer may be initiated by the Supreme Court motu proprio.

of printed matter to the general public, offends no ethical rule. The rule prescribing advertising or solicitation of business is aimed at commercialization of the profession and has to do with the effort to obtain remunerative business. It was never aimed at a situation in which a group of lawyers announce that they are willing to devote some of their time and energy to the interests of indigent citizens (Agpalo, Legal and Judicial Ethics, 8th Ed., p. 123).

Q: Determine whether the following advertisements by an attorney are ethical or unethical. Write “Ethical” or “Unethical”, as the case may be, opposite each letter and explain. a.

A calling card, 2x2 in size, bearing his name in bold print, office, residence and e-mail address, telephone and facsimile numbers. 
 b. A business card, 3’’x4’’ in size, indicating the aforementioned data with his photo, 1’’x1’’ in size. c. A pictorial press release in a broadsheet newspaper made by the attorney showing him being congratulated by the president of a client corporation for winning a multimillion damage suit against the company in the Supreme Court. d. The same press release made in a tabloid by the attorney’s client. e. A small announcement that the attorney is giving free legal advice on November 30, 2017 published in Balita, a tabloid in Filipino. (2017, 2002 Bar)

Q: A sign was posted at the building where the law office of Atty. RedentorWalang-Talo is located. The sign reads: Atty. Redentor A. Walang-Talo Chairman, IBP Legal Aid Committee Makati City IBP Chapter Free conciliation, mediation and court representation Suite 210, Galaxy Building, J.P. Rizal Street, Makati City a.

A: There is nothing wrong with the advertisement. The statement that he is the chairman of the IBP Legal Aid Committee is factual and true. Canon 27 of the Code of Professional Ethics states that “memberships and offices in bar associations and committees thereof” may be included in a lawyer’s advertisement. The statement that he gives free consultation, mediation and court representation services is for the purpose of promoting the IBP Legal Aid Committee.

A: a.

b.

c.

d.

e.

Does the posting constitute solicitation?

Ethical – A lawyer, in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts (Code of Professional Responsibility, Canon 3). For solicitation to be proper, it must be compatible with the dignity of the legal profession. If made in a modest and decorous manner, it would bring no injury to the lawyer or to the bar (Warvelle, Legal Ethics, p.55). 
 Unethical – The size of the card and the inclusion of the lawyer’s photo in it smacks of commercialism. It is highly unethical for an attorney to advertise his talents or skill as a merchant. 
 Unethical – A lawyer shall not pay or give anything of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business (Code of Professional Responsibility, Rule 3.04). A lawyer should not resort to indirect advertisements such as a pictorial press release in a newspaper to attract legal business. Ethical – A lawyer cannot be held liable for the action of his client, provided he had no knowledge of the client’s act. However, it would be unethical if the lawyer knew of the client’s intention to publish but nonetheless failed to prevent it. Ethical– The proffer of free legal services to the indigent, even when broadcast over the radio or tendered through circulation

b. Suppose the sign reads: Atty. Redentor A. Walang-Talo Attorney and Counsel-at-Law General Practitioner (Accepts pro bono cases pursuant to the IBP Legal Aid Program) Does the posting constitute solicitation? (2016 Bar) A: On the other hand, this advertisement is for the benefit of the lawyer alone and constitutes solicitation. ALTERNATIVE ANSWER: This does not constitute solicitation. The lawyer does not claim to be a specialist, but only a “general practitioner.” The statement that he accepts pro bono cases is not for the purpose of promoting his “business’’, as ”pro bono” means “for free.” TO THE LEGAL PROFESSION INTEGRATED BAR OF THE PHILIPPINES (RULE 139-A) Membership and dues

11

Legal and Judicial Ethics

a.

Q: Not paying the annual IBP dues. (2008 Bar) A: It is the duty of every lawyer to support the activities of the Integrated Bar of the Philippines (Canon 7, CPR). Default in payment of IBP dues for six months shall warrant suspension of membership to the Integrated Bar, and default to make such payment for one year shall be a ground for the removal of the delinquent member from the Roll of Attorneys (In Re Atty. Marcial Edillon, 84 SCRA 554 [1978]).

b.

Upholding the dignity and integrity of the profession

Courtesy, fairness and candor towards professional colleagues

Q:Atty. Kuripot was one of Town Bank's valued clients. In recognition of his loyalty to the bank, he was issued a gold credit card with a credit limit of P250,000.00. After two months, Atty. Kuripot exceeded his credit limit, and refused to pay the monthly charges as they fell due. Aside from a collection suit, Town Bank also filed a disbarment case against Atty. Kuripot.

Q: You are the counsel of K in his action for specific performance against DEV. Inc., a subdivision developer which is represented by Atty. L. Your client believes that the president of DEV, Inc., would be willing to consider an amicable settlement and your client urges you to discuss the matter with DEV. Inc., without the presence of Atty. L whom he considered to be an impediment to an early compromise. Would it be all right for you to negotiate the terms of the compromise as so suggested above by your client? (1997 Bar)

In his comment on the disbarment case, Atty. Kuripot insisted that he did not violate the Code of Professional Responsibility, since his obligation to the bank was personal in nature and had no relation to his being a lawyer.Is Atty. Kuripot correct? Explain your answer. (2017, 2005 Bar)

A:No. Rule 8.02, Canon 8 of the Code of Professional Responsibility provides that "a lawyer shall not directly or indirectly, encroach upon the professional employment of another lawyer." Canon 9 of the Code of Professional Ethics is more particular, "a lawyer should not in any way communicate upon the subject of the controversy with a party represented by counsel, much less should he undertake to negotiate or compromise the matter with him but should deal only with his counsel." In the case of Likong vs. Liin, 235 SCRA 414, a lawyer was suspended for negotiating a compromise agreement directly with the adverse party without the presence and participation of her counsels.

A: No. Atty. Kuripot is not correct. A lawyer should act according to the standards of the legal profession even in his personal acts. A lawyer shall not engage in conduct that adversely affects his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession (Code of Professional Responsibility, Rule 7.03). Q: Sonia, who is engaged in the lending business, extended to Atty. Roberto a loan of P50, 000.00 with interest of P25, 000.00 to be paid not later than May 20, 2016. To secure the loan, Atty. Roberto signed a promissory note and issued a postdated check. Before the due date, Atty. Roberto requested Sonia to defer the deposit of the check. When Atty. Roberto still failed to pay, Sonia deposited the check which was dishonored. Atty. Roberto ignored the notice of dishonor and refused to pay.

Q: After the pre-trial Atty. Hans Hilado, counsel for plaintiff Jennifer Ng, persuaded defendant Doris Dy to enter into a compromise agreement with the plaintiff without the knowledge and participation of defendant’s counsel, Atty. Jess de Jose. Doris acceded and executed the agreement. Therein Doris admitted her obligation in full and bound herself to pay her obligation to Jennifer at 40% interest per annum in ten (10) equal monthly installments. The compromise agreement was approved by the court.

a.

Did Roberto commit any violation of the CPR? Explain. b. Can he be held civilly liable to Sonia in an administrative case for suspension or disbarment? (2016 Bar) A:

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Atty. Roberto committed a violation of Canon 1 Rule 1.01, Canon 7 and Rule 7.03 in issuing a bouncing check. He should very well know that the issuance of a bouncing check is an unlawful act, a crime involving moral turpitude. (Co v. Bernardino, A.C. No. 3919, January 28, 1998) No. The sole issue in an administrative case is the determination of whether or not a lawyers is still fit to continue being a lawyer. The Supreme Court will not order the return of money which is not intimately related to a lawyer-client relationship (Wong v. Moya, A.C. 6972, October 17, 2008; Sps. Concepcion v. Atty. De La Rosa, A.C. No. 10681, Feb. 3, 2015).

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QUAMTO (1987-2017) Realizing that she was prejudiced, Doris Dy filed an administrative complaint against Atty. Hilado alleging that the latter prevented her from consulting her lawyer Atty. de Jose when she entered into the compromise agreement, thereby violating the rules of professional conduct. Atty. Hilado countered that Doris Dy freely and voluntarily entered into the compromise agreement which in fact was approved by the court. Was it proper for the judge to approve the compromise agreement since the terms thereof were just and fair even if counsel for one of the parties was not consulted or did not participate therein? Explain. (1995 Bar)

A: Considering that there was a restraining order issued by the Court of Appeals, it was proper for Gretel to take steps to maintain possession of his residence with the assistance of Hansel as lawyer.

A: It was not proper for the Judge to approve the compromise agreement without the participation of the lawyer of one of the parties, even if the agreement was Just and fair. Even if a client has exclusive control of the cause of action and may compromise the same, such right is not absolute. He may not, for example, enter into a compromise to defeat the lawyer’s right to a just compensation. Such right is entitled to protection from the court.

Q: You had just taken your oath as a lawyer. The secretary to the president of a big university offered to get you as the official notary public of the school. She explained that a lot of students lose their Identification Cards and are required to secure an affidavit of loss before they can be issued a new one. She claimed that this would be very lucrative for you, as more than 30 students lose their Identification Cards every month. However, the secretary wants you to give her one-half of your earnings therefrom.Will you agree to the arrangement? Explain. (2017, 2005 Bar)

It was not proper for the Joli Bank’s lawyers to file an action of trespass to dwelling against Gretel and lawyer Hansel. Canon 8 of the Code of Professional Responsibility provides that a lawyer shall conduct himself with fairness and candor towards his professional colleagues and shall avoid harassing tactics against opposing counsel. No assistance in unauthorized practice of law

Q: Gretel’s residence in Makati village was foreclosed by Joli Bank. Armed with a writ of possession issued by the lower court, the sheriff and Joli Bank’s lawyers evicted Gretel and padlocked the house. A restraining order issued by the Court of Appeals which Gretel showed the sheriff was disregarded. Gretel requested Hansel, an attorney who lives in the same village, to assist her in explaining the restraining order, since Gretel’s counsel of record was out of town. The discussion on the restraining order was conducted on the sidewalk along Gretel’s house. The village security guards were attracted by the commotion brought about by the discussion, so they called the Makati Police and the CAPCOM who responded immediately. The CAPCOM colonel, who arrived at the scene with his troop took it upon himself to open the house and declare Gretel as the rightful possessor. The colonel invited Gretel and Hansel to enter the house. Five days later, Hansel was made a co-respondent (together with Gretel) in a complaint for trespass to dwelling filed by Joli Bank’s lawyers before the Makati Fiscal’s office.

A: No, I will not agree. Rule 9.02 of the Code of Professional Responsibility provides that “a lawyer shall not divide or stipulate to divide a fee for legal service with persons not licensed to practice law". The secretary, not being a lawyer, is not licensed to practice law and not entitled to a share of the fees for legal services rendered, particularly in notarizing affidavits. Q: Atty. Monica Santos-Cruz registered the firm name “Santos-Cruz Law Office” with the Department of Trade and Industry as a single proprietorship. In her stationery, she printed the names of her husband and a friend who are both non-lawyers as her senior partners in light of their investments in the firm. She allowed her husband to give out calling cards bearing his name as senior partner of the firm and to appear in courts to move for postponements. Did Atty. Santos-Cruz violated the Code of Professional Responsibility? Why? (2010 Bar) A: Yes, she did. In the case of Cambaliza v. Cristobal-Tenorio (434 SCRA 288 [2004]), which involves the same facts, the Supreme Court held that a lawyer who allows a non-member of the Bar to misrepresent himself as a lawyer and to practice law, is guilty of violating Canon 9 and Rule 9.01 of the Code of Professional Responsibility which provide as follows:

Discuss the propriety of the act of Joli Bank’s lawyers, considering that all lawyers are mandated to conduct themselves with courtesy, fairness and candor toward their professional colleagues and to avoid harassing tactics against opposing counsel. (1989 Bar)

13

Legal and Judicial Ethics

“Canon 9. A lawyer shall not directly or indirectly assist in the unauthorized practice of law.”

Atty. Billy’s opponent, Atty. Ally, a very conscientious former editor of her school’s law journal, noticed many discrepancies in Atty. Billy’s supposed quotations from the Supreme Court decision when she read the text of the case from her copy of the Philippine Reports. Atty. Billy failed to reproduce the punctuation marks and font sizes used by the Court. Worse, he quoted the arguments of one party as presented in the case, which arguments happened to be favorable to his position, and not the ruling or reasoning of the Court, but this distinction was not apparent in his brief. Appalled, she filed a complaint against him.

“Rule 9.01. A lawyer shall not delegate to any unauthorized person the performance of any task which by law may only be performed by a member of the bar in good standing.” TO THE COURTS Candor, fairness and good faith towards the courts Q: In a pending labor case, Atty. A filed a Position Paper on behalf of his client, citing a Supreme Court case and quoting a portion of the decision therein which he stated reflected the ratio decidendi. However, what he quoted was not actually the Supreme Court ruling but the argument of one of the parties to the case. May Atty. A be faulted administratively? Explain. (2000 Bar)

a.

Did Atty. Billy fail in his duty as a lawyer? What rules did he violate, if any? b. How should lawyer quote a Supreme Court decision? (2015, 1994 Bar) A:

A: Yes, he may be faulted administratively. A lawyer owes candor, fairness and good faith to the court. Rule 10.02 of the Code of Professional Conduct expressly provides that a lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not has been proved. To cite an argument of one of the parties as a ratio decidendiof a Supreme Court decision shows, at least, lack of diligence on the part of Atty. A (Commission on Election v. Noynay, 292 SCRA 254).

A. Atty. Billy has violated Canon 10, Rules 10.01 and 10.02 of the Code of Professional Responsibility (CPR) which provide as follows: CANON 10. A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT. Rule 10.01. A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall he mislead or allow the Court to be misled by any artifice. Rule 10.02. A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of the opposing counsel, or the text of a decision or authority, or knowingly cite a law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved.

Q: Atty. Billy, a young associate in a medium-sized law firm, was in a rush to meet the deadline for filing his appellant’s brief. He used the internet for legal research by typing keywords on his favorite search engine, which led him to many websites containing text of Philippine jurisprudence. None of these sites was owned or maintained by the Supreme Court. He found a case believed to be directly applicable to his client’s cause, so he copied the text of the decision from the blog of another law firm, and pasted the text to the document he was working on. The formatting of the text he had copied was lost when he pasted it to the document, and he could not distinguish anymore, which portions were the actual findings or rulings of the Supreme Court, and which were quoted portions from the other sources that were used in the body of the decision. Since his deadline was fast approaching, he decided to just make it appear as if every word he quoted was part of the ruling of the Court, thinking that it would not be discovered.

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B.They should be verbatim reproductions of the Supreme Court’s decisions, down to the last word and punctuation mark (Insular Life Assurance Co., Ltd., Employees Association v. Insular Life Assurance Co., Ltd., G.R. No. L-25291, January 30, 1971, 37 SCRA 244). Q: Atty. X was retained by E in a case for violation of BP 22 filed by B before the scheduled hearing, Atty. X assured B that E would pay the value of the dishonored check. Elated at the prospect of being paid, B wined and dined Atty. X several times. Atty. X convinced B not to appear at the scheduled hearings. Due to non-appearance of B, the estafa case was dismissed for failure to prosecute. B, however, was never paid. Thus, she filed a case for disbarment against Atty. X. Does the conduct of Atty. X constitute malpractice? Explain. (1996 Bar) A: Yes, the conduct of Atty. S constitutes

14

QUAMTO (1987-2017) malpractice. A lawyer owes candor, fairness and good faith to the court. He shall not do any falsehood or shall be mislead or allow the court to be misled by any artifice. He owes loyalty to his client. In a case involving similar facts, the Supreme Court found that the lawyer concerned obstructed the administration of justice and suspended him for two years (Cantome v. Ducusin, 57 Phil. 20)

Q: Atty. Y, in his Motion for Reconsideration of the Decision rendered by the National Labor Relations Commission (NLRC), alleged that there was connivance of the NLRC Commissioners with Atty. X for monetary considerations in arriving at the questioned Decision. He insulted the Commissioners for their ineptness in appreciating the facts as borne by the evidence presented.

Respect for the courts and judicial officers

Atty. X files an administrative complaint against Atty. Y for using abusive language.

Q: Atty. Luna Tek maintains an account in the social media network called Twitter and has 1,000 followers there, including fellow lawyers and some clients. Her Twitter account is public so even her non-followers could see and read her posts, which are called tweets. She oftentimes takes to Twitter to vent about her daily sources of stress like traffic or to comment about current events. She also tweets her disagreement and disgust with the decisions of the Supreme Court by insulting and blatantly cursing the individual Justices and the Court as an institution.

Atty. Y posits that as lawyer for the downtrodden laborers, he is entitled to express his righteous anger against the Commissioners for having cheated them; that his allegations in the Motion for Reconsideration are absolutely privileged; and that proscription against the use of abusive language does not cover pleadings filed with the NLRC, as it is not a court, nor are any of its Commissioners Justice or Judges. Is Atty. Y administratively liable under the Code of Professional Responsibility? Explain. (2010 Bar)

a.

Does Atty. Luna Tek act in a manner consistent with the Code of Professional Responsibility? Explain the reasons for your answer. b. Describe the relationship between a lawyer and the courts. (2015 Bar)

A: Atty. Y “has clearly violated Canons 8 and 11 of the Code of Professional Responsibility and is administratively liable. A lawyer shall not in his professional dealings, use language which is abusive, offense or otherwise improper” (Rule 8.01, CPR). A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the courts (Rule 11.03, CPR).

A: a.

b.

Atty. Luna did not act in a manner consistent with the Code of Professional Responsibility (CPR). Canon 11 of the Code provides that “a lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct with others.” As an officer of the court, a lawyer should set the example in maintaining a respectful attitude towards the court. Moreover, he should abstain from offensive language in criticizing the courts. Atty. Luna Tek violated this rule in insulting and blatantly cursing the individual Justices and the Supreme Court in her tweets. Lawyers are expected to carry their ethical responsibilities with them in cyberspace (Lorenzana v. Judge Ma. Cecilia L. Austria, A.M. No. RTJ-09-2200, April 2, 2014). A lawyer is an officer of the court. As such, he is much a part of the machinery of justice as a judge is. The judge depends on the lawyer for the proper performance of his judicial duties. Thus, Canon 10 enjoins a lawyer to be candid with the courts; Canon 11 requires him to show respect to judicial officers; and Canon 12 urges him to exert every effort and consider it his duty to assist in the speedy and efficient administration of justice.

In the case of Johnny Ng v. Atty. Benjamin C. Alar (507 SCRA 465 [2006]), which involves the same facts, the Supreme Court held that the argument that the NLRC is not a court, is unavailing. The lawyers remains a member of the Bar, an “oath-bound servant of the law, whose first duty is not to his client but to the administration of justice and whose conduct ought to be and must be scrupulously observant of the law and ethics.” The Supreme Court also held that the argument that labor practitioners are entitled to some latitude of righteous anger is unavailing. It does not deter the Court from exercising its supervisory authority over lawyers who misbehave or fail to live up to that standard expected of them as members of the bar. Q: Having lost in the Regional Trial Court and then in the Court of Appeals, Atty. Mercado appealed to the Supreme Court. In a minute resolution, the Supreme Court denied his petition for review for lack of merit. He filed a motion for reconsideration which was also denied. After the judgment had become final and executory, Atty.

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Legal and Judicial Ethics

Mercado publicly criticized the Supreme Court for having rendered what he called an unjust judgment, even as he ridiculed the members of the Court by direct insults and vituperative innuendoes. Asked to explain why he should not be punished for his clearly contemptuous statements, Atty. Mercado sets up the defense that his statements were uttered after the litigation had been finally terminated and that he is entitled to criticize Judicial actuations. Is Atty. Mercado's contention tenable? Explain. (1993 Bar)

of Court. The specific rationale for the sub judice rule is that courts, in the decision of issues of fact and law should be immune from every extraneous influence; that facts should be decided upon evidence produced in court; and that the determination of such facts should be uninfluenced by bias, prejudice or sympathies. (Marantan v. Diokno, 716 SCRA 164, Feb. 12, 2014) After a case is decided, however, the decision is open to criticism, subject only to the condition that all such criticism shall be bona fide, and shall not spill over the walls of decency and propriety.

A: Atty. Mercado’s contention is not tenable. While he is free to criticize the decision itself, he is not at liberty to call said judgment an unjust judgment and to ridicule the members of the court. It is one thing to analyze and criticize the decision itself, which is proper, and it is another thing to ridicule the members of the court, which is wrong. The right of a lawyer to comment on or criticize the decision of a judge or his actuations is not unlimited. It is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety. A wide chasm exists between fair criticism, on the one hand, and abuse and slander of courts and judges on the other. A publication in or outside the court tending to impede, obstruct, embarrass or influence the courts in administering Justice in a pending suit, or to degrade the courts, destroy public confidence in them or bring them in any way into disrepute, whether or not there is a pending litigation, transcends the limits of fair comment. Such publication or intemperate and unfair criticism is a gross violation of the lawyer’s duty to respect the courts. It is a misconduct that subjects him to disciplinary action.

A wide chasm exists between fair criticism, on the one hand, and abuse and slander of courts and the judges thereof, on the other. Intemperate and unfair criticism is a gross violation of the duty of respect to courts. It is such a misconduct that subjects a lawyer to disciplinary action (In Re Almace, G.R. L-27654, February 18, 1970). In this case, the published comment of Atty. Harold was made after the decision of the Supreme Court was rendered, but the same was not yet final. The case was still pending. Hence, the publication of such comment was inappropriate, and Atty. Harold may be penalized for indirect contempt of court. ALTERNATIVE ANSWER: Although the comment of Atty. Harold was made while the case was technically pending, it was made after a decision was rendered, and the comment made is within the grounds of decency and propriety. Hence, the lawyer does not deserve punishment for the same. Q: The Code of Professional Responsibility is to lawyers, as the Code of Judicial Conduct is to members of the bench. How would you characterize the relationship between the Judge and a lawyer? Explain. (1996 Bar)

Q: Atty. Harold wrote in the Philippine Star his view that the decision of the Supreme Court in a big land case is incorrect and should be re-examined. The decision is not yet final. Atty. Alfonso, the counsel for the winning party in that case, filed a complaint for disbarment against Atty. Harold for violation of sub judice rule and Canon 11 of the CPR that a lawyer shall observe and maintain respect due to the courts. Explain the sub judice rule and rule on the disbarment case. (2016 Bar)

A: The Code of Professional Responsibility requires lawyers to observe and maintain respect for judicial officers (Canon 11). On the other hand, the Code of JudicialConduct requires judge to be patient, attentive and courteous to lawyers (Rule 3). In a word, lawyers and judges owe each other mutual respect and courtesy. ALTERNATIVE ANSWERS:

A: The sub judice rule restricts comments and disclosures pertaining to pending judicial proceedings, not only by participants in the pending case, members of the bar and bench, litigants and witnesses, but also to the public in general, which necessarily includes the media, in order to avoid prejudging the issue, influencing the court, or obstructing the administration of justice. A violation of this rule may render one liable for indirect contempt under Sec. 3(d), Rule 71 of the Rules

UST BAR OPERATIONS

a.

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The relationship between a judge and a lawyer must be based on independence and self-respect. He must neither be a mindless fawning slave of the judge, nor must he take an attitude of hostility towards the Judge. The lawyer must maintain toward the court a respectful attitude and to uphold and protect the dignity of the court.

QUAMTO (1987-2017) b.

Being an officer of the court, the first and foremost duty of the lawyer is to the court. He is bound to obey lawful orders and decisions of the court. Like the court itself, the lawyer is an instrument to advance the ends of justice. Should there be a conflict between the duty to his client and that of the court, he should resolve the conflict against his client and obey the lawful orders of the court. On the other hand, judges should be courteous and impartial to counsel. To maintain impartiality, the judge should not associate too much with lawyers.

Another ethical rule provides that when “a lawyer discovers that some fraud or deception has been practiced, which is unjustly imposed upon the court or a party, he should endeavor to rectify it; at first by advising his client, and if his client refuses to forego the advantage thus unjustly gained,he should promptly inform the injured person or his counsel, so that they may take appropriate steps". A literal application of these ethical injunctions requires the disclosure of the falsification. On the other hand, the attorney’s duty to keep inviolate the client's confidence demands that he refrain from revealing the client’s wrong-doing, the same being a past offense. Resigning as a lawyer will enable the lawyer to observe such loyalties. If the decision is already final, as a lawyer, I would advise my client to withdraw any claim on the donation mortis causa and have the property be given to the rightful owner of the property the subject matter of the donation.

Assistance in the speedy and efficient administration of justice Q: The Supreme Court issued a resolution in a case pending before it, requiring the petitioner to file, within ten (10) days from notice, a reply to the respondent's comment. Attorney A, representing the petitioner, failed to file the reply despite the lapse of thirty (30) days from receipt of the Court’s resolution. The Supreme Court dismissed the petition for non-compliance with its resolution. Attorney A timely moved for the reconsideration of the dismissal of the petition, claiming that his secretary, who was quite new in the office, failed to remind him of the deadline within which to file a reply. Resolve Attorney A's motion. (2003 Bar)

This action is in compliance with my duty as a lawyer to assist in the administration of justice and in compliance of my oath: “I will do no falsehood, nor consent to the doing of any in court; that I will not wittingly or willingly promote or sue any groundless, false and or unlawful suit, nor give aid nor consent to the same”. Reliance on merits of his cause and avoidance of any impropriety which tends to influence or gives the appearance of influence upon the courts

A: Attorney A’s motion is not meritorious. He has violated Rule 12.03 of the Code of Professional Responsibility which provides that “a lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so”. His claim that it was the fault of his secretary is not sufficient. He cannot take refuge behind the inefficiency of his secretary because the latter is not a guardian of the lawyer’s responsibilities (Nidua v. Lazaro, 174 SCRA 581 [1989]).

Q: Atty. Hermano requested his fraternity brother, Judge Patron, to introduce him to Judge Apestado, before whom he has a case that had been pending for sometime. Judge Patron, a close friend of Judge Apestado, acceded to the request, telling the latter that Atty. Hermano is his fraternity “brod” and that Atty. Hermano simply wanted to ask for advice on how to expedite the resolution of his case. They met, as arranged, in the fine dining restaurant of a five-star hotel. Atty. Hermano hosted the dinner.

Q: Atty. Cua wins a case involving a donation mortis causa. Afterwards, she discovers, and is convinced, that the Deed of Donation was falsified, and that it was her client who did the falsification. If you were Atty. Cuawhat would you do? Explain. (1993 Bar)

Did Atty. Hermano, Judge Patron and Judge Apestado commit any ethical/administrative violation for which they can be held liable? (2013 Bar) A: Yes, the three (3) of them committed ethical/administrative violations for which they can be held liable.

A: If I were Atty. Cua., I would resign as his lawyer. The question as to whether the attorney should disclose the falsification to the court or to the prosecuting attorney involves a balancing of loyalties. One ethical rule states that “counsel upon the trial of a cause in which perjury has been committed owes it to the profession and the public to bring the matter to the knowledge of the prosecuting authorities".

For hosting the dinner, Atty. Hermano acted in contravention of ethical standards. A lawyer should refrain from any impropriety which tends to influence or give the appearance of influencing the court (Code of Professional Responsibility, Canon 13, Rule 13.01). A lawyer

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Legal and Judicial Ethics

shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with judges (Ibid., Canon 13, Rule 13.01). Marked attention and unusual hospitality on the part of a lawyer to a judge, uncalled for by the personal relations on the parties, subject both the judge and the lawyer to misconstruction of motive and should be avoided (Canons of Professional Ethics, canon 3, 2nd par., 1st sentence). Even if the purpose of the meeting was merely to “ask advice on how to expedite the resolution of his case,” Atty. Hermano still acted outside of the bounds of ethical conduct. This is so because a lawyer deserves rebuke and denunciation for any device or attempt to gain from a judge a special personal consideration or favor (Ibid., Canon 3, 2nd par., 2nd sentence).

into the community, and having learned that Judge K takes his breakfast at a coffee shop near his (Judge K's) boarding house, Atty. J made it a point to be at the coffee shop at about the time that Judge K takes his breakfast. Comment on Atty. J's acts. Do they violate the Code of Professional Responsibility? (2000 Bar) A: Yes, his actions violate the Code of Professional Responsibility. Canon 13 of the said Code provides that a lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court. Rule 13.01 of the same Code provides that a lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for, cultivating familiarity with Judges. Atty. J obviously sought opportunity for cultivating familiarity with Judge K by being at the coffee shop where the latter takes his breakfast, and is extending extraordinary attention to the judge by inviting him to be a principal sponsor at the wedding of his son.

Both judge patron and Judge Apestado may be held liable for having the dinner meeting with Atty. Hermano. Judges shall ensure that not only is their conduct above reproach, but that it is perceived to be so in the view of a reasonable observer (New Code of Conduct for the Philippine Judiciary, Canon 2, Sec.1). Judges shall avoid impropriety and the appearance of impropriety in all of their activities (Ibid., Canon 4, Sec. 1). Their having dinner with Atty. Hermano, a practicing lawyer, could be construed as appearance of impropriety.

Q: After a study of the records and deciding that plaintiff was entitled to a favorable Judgment, Judge Reyes requested Atty. Sta. Ana, counsel for the plaintiff, to prepare the draft of the decision. Judge Reyes then reviewed the draft prepared by Atty. Sta. Ana and adopted it as his decision for plaintiff. Judge Reyes saw nothing unethical in this procedure as he would ask the other party to do the same if it were the prevailing party.

Judge Patron for having allowed himself to be used as a “bridge” by Atty. Hermano, his fraternity “brod”, to meet with Judge Apestado exhibited judicial misconduct in the following manner: Judges shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court (Ibid., Canon 1, Sec. 3). Furthermore, in allowing Atty. Hermano to take advantage of his fraternity bond, Judge Patron allowed the prestige of judicial office to advance the private interests of others, conveyed or permitted hos fraternity “brod” to convey the impression that he is in a special position to influence the judge (Ibid., Canon 1, Sec 4, 2nd sentence).

Please comment on whether Judge Reyes' approach to decision-writing is ethical and proper. (1994 Bar) A:This procedure of Judge Reyes is unethical because the judge is duty bound to study the case himself; he must personally and directly prepare his decisions and not delegate it to another person especially a lawyer in the case (Section 1. Rule 36, Rules of Court).

The specific violations of Judge Apestado were committed when he allowed himself to be convinced by Judge Patron to have the dinner meeting with Atty. Hermano to discuss how the case may be expedited. In performing judicial duties, judges shall be independent form judicial colleagues in respect of decisions which the judge is obliged to make independently (Ibid., Canon 1, Sec. 2). Finally, in having dinner meeting with Atty. Hermano who has a pending case with his sala, Judge Apestado has exhibited an appearance of impropriety in his activities (Ibid., Canon 4, Sec 1).

ALTERNATIVE ANSWER: In the case of Lantoria vs. Bunyi, 209 SCRA 528, a lawyer was suspended for preparing drafts of decisions for a judge. The Supreme Court held that this violated Canon No. 13 and Rule 13.01 of the Code of Professional Responsibility which provide that: “CANON 13. – A lawyer shall rely upon the merits of his case and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court."

Q: Atty. J requested Judge K to be a principal sponsor at the wedding of his son. Atty. J met Judge K a month before during the IBPsponsored reception to welcome Judge K

UST BAR OPERATIONS

“Rule 13.01 – A lawyer should not extend extraordinary attention or hospitality to nor seek opportunity for cultivating familiarity with the judge."

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QUAMTO (1987-2017) b.

Conversely, therefore, a judge should not ask lawyers of parties to a case before him to draft his decisions. “A judge should so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary." (Rule 2.01, Code of Judicial Conduct) Q: Atty. A is offered professional engagement to appear before Judge B who is A’s relative, compadre and former office colleague. Is A ethically compelled to refuse the engagement? Why? (2001 Bar) A: There is no ethical constraint against a lawyer appearing before a judge who is a relative, compadre or former office colleague as long as the lawyer avoids giving the impression that he can influence the judge. On the other hand, the judge is required by the Code of Judicial Conductnot to take part in any proceeding where his impartiality may be reasonably questioned (Code of Judicial Conduct, Rule 3.12). Among the grounds for mandatory disqualification of the judge is if any of the lawyers is a relative by consanguinity or affinity within the fourth degree.

TO THE CLIENTS AVAILABILITY OF SERVICE WITHOUT DISCRIMINATION Services regardless of a person’s status Q: M was criminally charged with violation of a special law. He tried to engage the service of Atty. N. Atty. N believed, however, that M is guilty on account of which he declined. Would it be ethical for Atty. N to decline? Explain. (2000, 1996 Bar)

Q: Rico, an amiable, sociable lawyer, owns a share in Marina Golf Club, easily one of the more posh golf courses. He relishes hosting parties for government officials and members of the bench.

A: It would not be ethical for Atty. N to decline. Rule 14.01 of the Code of Professional Responsibility provides that’ a lawyer shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life, or because of his own opinion regarding the guilt of said person. It is for the judge, not the lawyer, to decide the guilt of the accused, who is presumed to be innocent until his guilt is proved beyond reasonable doubt by procedure recognized by law.

One day, he had a chance meeting with a judge in the Intramuros golf course. The two readily got along well and had since been regularly playing golf together at the Marina Golf Club. a.

If Atty. Rico does not discuss cases with members of the bench during parties and golf games, is he violating the Code of Professional Responsibility? Explain. b. How about the members of the bench who grace the parties of Rico, are they violating the Code of Judicial Conduct? Explain. (2010 Bar)

Q: Atty. DD’s services were engaged by Mr. BB as defense counsel in a lawsuit. In the course of the proceedings, Atty. DD discovered that Mr. BB was an agnostic and a homosexual. By reason thereof, Atty. DD filed a motion to withdraw as counsel without Mr. BB’s express consent. Is Atty. DD’s motion legally tenable? Reason briefly. (2004 Bar)

A: a.

Members of the bench who grace the parties of Atty. Rico would be guilty of violating Sec. 3, Canon 4 of the New Code of Judicial Conduct for the Philippine Judiciary which provides that “judges shall, in their personal relations with individual members of the legal profession who practice regularly in their court, avoid situations which might reasonably give rise to the suspicion or appearance of favoritism or partiality”. It has been held that “if a judge is seen eating and drinking in public places with a lawyer who has cases pending in his or her sala, public suspicion may be aroused, thus tending to erode the trust of litigants in the impartiality of the judge” (Padilla v. Zantua, 237 SCRA 670). But if Atty. Rico is not a practicing lawyer, such suspicion may not be aroused.

Yes. A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with judges (Code of Professional Responsibility, Rule 13.01). Moreover, he should refrain from any impropriety which gives the appearance of influencing the court (CPR, Canon 13). In regularly playing golf with judges, Atty. Rico will certainly raise the suspicion that they discuss cases during the game, although they actually do not. However, if Rico is known to be a non-practicing lawyer, there is not much of an ethical problem.

A: No. Atty. DD’s motion is not legally tenable. He has no valid cause to terminate his services. His client, Mr. BB, being an agnostic and homosexual, should not be deprived of his counsel’s representation solely for that reason. A lawyer shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life or because of his own opinion regarding the guilt of said person (Code of Professional Responsibility, Canon 14,

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Legal and Judicial Ethics

Rule 14.01).

b. Can F employ a counsel de parte to collaborate with Atty. M, his counsel de oficio? Explain. (1996 Bar)

Q: Your services as a lawyer are engaged by John Dizon to defend him from the charge of malversation of public funds before the Sandiganbayan. John confessed to you that he actually misappropriated the amount charged but he said it was out of extreme necessity to pay for the emergency operation of his wife.

A: a.

Will you agree to defend him? State your reason. (1990 Bar) A:I will agree to defend him, notwithstanding his confession to me that he actually misappropriated the amount. Rule 14.01 of the Code of Professional Responsibility provides that a lawyer shall not decline to represent a person because of his own opinion regarding the guilt of the person. One of the duties of an attorney is that he should, in the defense of a person accused of a crime, by all fair and honorable means regardless of his personal opinion as to guilt of the accused, present every defense that the law permits, to the end that no person may be deprived of life liberty but by due process of law. The burden of proof lies with the prosecution and if the prosecution fails to discharge such burden, the lawyer can always invoke the presumption of innocence for the acquittal of his client. If the prosecution proves the guilt of the accused beyond reasonable doubt, the lawyer can strive to lower the penalty by presenting mitigating circumstances, for he is not necessarily expected to sustain the client’s innocence. A lawyer is an advocate, not a judge, and if he has rendered effective legal assistance to his client as allowed by law, he can rightfully say that he has faithfully discharged his duties as a lawyer, even if the accused is found guilty by the court.

b.

Q: Atty. Aguirre, as counsel de oficio for Boy Batongbakal, was able to win an acquittal for Boy who was charged with robbery in band. A year later, Atty. Aguirre discovered that Boy in fact had a lot of money which he had been bragging was part of the loot in the crime for which he was acquitted. Knowing that Boy could no longer be prosecuted on the ground of double jeopardy, Atty. Aguirre sent him a bill for his services as his counsel de oficio. Please give your reasoned comments on the ethical considerations involved, if any, in the above case. (1994 Bar) A:A counsel de oficio is a lawyer appointed by the court to defend an indigent defendant in a criminal case. The lawyer designated as counsel de officio cannot charge the indigent litigant for his professional services. In a sense, there is no contract for legal services between him and the defendant. In the absence of an express or implied contract, there is no obligation to compensate. Suing his client for attorney’s fees might also involve a violation of the confidential nature of a lawyer-client relationship.

Services as counsel de officio Q: May a lawyer decline an appointment by the court as counsel de oficio for an accused because he believes, and is fully convinced that the accused is guilty of the crime charged? (1991 Bar) A: A lawyer may not decline an appointment as counsel de oficio even if he is convinced that the accused is guilty. It is his obligation to at least protect his rights. He might even have him acquitted or at least reduce his penalty depending on the evidence presented during the trial.

Q: Atty. Vidal, a semi-retired Metro Manila law practitioner, has a cattle ranch in the remote municipality of Caranglan, Neuva Ecija. He attends to his law office in Manila on Mondays, Tuesdays and Wednesdays, and spends the rest of the week in his cattle ranch riding horses and castrating bulls. In a criminal case pending before the Municipal Trial Court of Caranglan, the only other licensed member of the Bar is representing the private complainant. The accused is a detention prisoner. The judge

Q: In a homicide case, Atty. M was appointed by the Court as counsel de oficio for F, the accused. After trial, F was acquitted. Atty. M sent F a bill for attorney’s fees. a.

Can F be compelled to pay? Explain.

UST BAR OPERATIONS

No, F may not be compelled to pay attorney’s fees. A counsel de officio is a lawyer appointed to render professional services in favor of an indigent client. In the absence of a law allowing compensation, he cannot charge the indigent litigant for his professional services. One of the obligations which the lawyer assumed when he took his oath as a lawyer is to render free legal services when required by the law to do so. The Rules of Court provides a token compensation for an attorney de officio to be paid by the state. He may do so, but if he can afford to employ a counsel de parte, then he is no longer indigent and will not need a counsel de officio. The latter can withdraw as his counsel if he chooses to.

20

QUAMTO (1987-2017) wants to expedite proceedings.

later after accepting the case and while trial is ongoing that his client was indeed the perpetrator of the crime, may the lawyer withdraw his appearance from the case? Why or why not? (2014 Bar) 


a.

What must the judge do to expedite proceedings? b. If Attorney Vidal is appointed to act as counsel de oficio for the accused, could he refuse by saying that in the province, he does not want to do anything except ride horses and castrate bulls? Explain. (1993 Bar)

A: a.

A: a.

b.

The judge may appoint Atty. Vidal as counsel de oficio in order to expedite the proceedings. This is especially because the accused is a detention prisoner who is presumed to be indigent and cannot retain a paid counsel. Atty. Vidal cannot validly refuse the appointment as counsel de oficio. While it is true that he stays in the province to rest during the latter part of the week as lawyer he must comply with his oath to assist in the administration of justice. Precisely one of the objectives of the Integrated Bar is to compel all lawyers in the active practice of law to comply with their obligation to assist the courts in the administration of justice.

b.

Valid grounds for refusal to serve Q: When may refusal of a counsel to act as counsel de oficio be justified on grounds aside from reasons of health, extensive travel abroad, or similar reasons of urgency? Support your answer. (2001 Bar)

CANDOR, FAIRNESS AND LOYALTY TO CLIENTS

A: Other justified grounds for refusal to act as counsel de oficio are: a. b. c. d. e.

Rule 14.04 of the Code of Professional Responsibility provides that a lawyer shall not decline to represent a person solely on account of his own opinion regarding the guilt of the said person. It is not the duty of a lawyer to determine whether the accused is guilty or not, but the judge’s. Besides, in a criminal case, the accused is presumed innocent, and he is entitled to an acquittal unless his guilt is proven beyond reasonable doubt. The role of the lawyer is to see to it that his constitutional right to due process is observed. 
 He may withdraw his appearance but in accordance with procedure in Sec. 26, Rule 138 of the Rules of Court. Moreover, Rule 19.02 of the Code of Professional Responsibility provides that “a lawyer who has received information that his client has, in the course of the representation, perpetuated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which, he shall terminate the relationship with such client in accordance with the Rules of Court.”

Privileged communications

Too many de oficio cases assigned to the lawyer (People v. Daeng, 49 SCRA 222); Conflict of interest (Rule 14.03, CPR); Lawyer is not in a position to carry out the work effectively or competently (supra); Lawyer is prohibited from practicing law by reason of his public office which prohibits appearances in court; and Lawyer is preoccupied with too many cases which will spell prejudice to the new clients.

Q: A, who is charged in Court with estafa for misappropriating funds entrusted to him by B, consulted Atty. C about the case with the intention of engaging his services as defense counsel. Because A could not afford to pay the fee that Atty. C was charging him, A engaged the services of another counsel, Atty. D. At the trial of the case for the estafa against A, the prosecutor announced in open court that his next witness was Atty. C, whom he was calling to the witness stand. Counsel for A, Atty. D, vigorously opposed the prosecutor’s move on the ground Atty. C may not be called as witness for the prosecution as he might disclose a wouldbe client’s confidence and secret. Asked by the presiding Judge what would be the nature of Atty. C’s testimony, the prosecutor said it has something to do with how A obtained from B the funds that the latter received from the former but failed to account for. Thereupon, Atty. A vigorously opposed the prosecutor’s motion. If you were the Judge, how would you rule on the matter? (1999 Bar)

Q: A is accused of robbery in a complaint filed by B. A sought free legal assistance from the Public Attorney’s Office (PAO) and Atty. C was assigned to handle his case. After reviewing the facts as stated in the complaint and as narrated by A, Atty. C is convinced that A is guilty. a.

May Atty. C refuse to handle the defense of A and ask to be relieved? Explain fully. b. In problem (a), if the lawyer is counsel de parte for the accused and he learns

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Legal and Judicial Ethics

A: If I were the judge, I will not allow Atty. C to take the witness stand. When A consulted Atty. C about his case, a lawyer-client relationship was established between them. It does not matter that A did not eventually engage his services because of his fees; such relationship has already been created (Hilado v. David,84 Phil 569). A lawyer shall be bound by the rule on privileged communication in respect to matters disclosed to him by a prospective client (Code of Professional Responsibility, Rule 15.02). The rule on privileged communication provides that an attorney cannot, without the consent of his client, be examined as to any communication made by the client to him (Rules of Court, Rule 130, Sec. 21 [b]). The prosecutor has announced that Atty. C will be asked about how A obtained from B the funds that he failed to account for. Atty. C’s knowledge of such matter could have come only from A.

permanently turned sour after Maria filed an administrative case against the latter for failing to return borrowed jewelry. Atty. Evangeline, on the other hand, threatened to charge Maria with a criminal case for falsification of public documents, based on the disclosures Maria had earlier made to Atty. Evangeline. Was the consultation of Maria with Atty. Evangeline considered privilege? (2015 Bar) A: The consultation of Maria with Atty. Evangeline is considered privileged. The moment the complainant approached the then receptive respondent to seek legal advice, a veritable lawyer-client relationship evolved between the two. Such relationship imposes upon the lawyer certain restrictions circumscribed by the ethics of the profession. Among the burdens of the relationship is that which enjoins the lawyer to keep inviolate confidential information acquired or revealed during legal consultations. The fact that one is, at the end of the day not inclined to handle the client’s case is hardly of consequence. Of little moment too, is the fact that no formal professional engagement follows consultation. Nor will it make any difference, that no contract whatsoever was executed by the parties to memorialize the relationship (Hadjula v. Madianda, A.C. No. 6711, July 3, 2007).

Q: In the course of a drinking spree with Atty. Holgado who has always been his counsel in business deals, Simon bragged about his recent sexual adventures with socialites known for their expensive tastes. When Atty. Holgado asked Simon how he manages to finance his escapades, the latter answered that he has been using the bank deposits of rich clients of Banco Filipino where he works as manager. Is Simon’s revelation to Atty. Holgado covered by the Attorney-client privilege? (2006 Bar) A: Simon’s revelation to Atty. Holgado is not covered by the lawyer-client privilege. In the first place, it was not made on account of a lawyer-client relationship, that is, it was not made for the purpose of seeking legal advice. In the second place, it was not made in confidence (Mercado v. Vitriolo, 459 SCRA 1). In the third place, the attorney-client privilege does not cover information concerning a crime or a fraud being committed or proposed to be committed.

Conflict of Interest Q: St. Ivan’s Hospital, Inc. (St. Ivan’s) and allied Construction Co. (Allied) separately retained the legal services of Tomas and Benedicto Law Offices. St. Ivan’s engaged the service of Allied for the construction of a new building but failed to pay the contract price after the completion of the works. A complaint for sum of money was filed by Atty. Budoy, a former associate of Tomas and Benedicto Law Offices, on behalf of Allied against St. Ivan’s. St. Ivans, lost the case and was held liable to Allied.

Q: Maria and Atty. Evangeline met each other and became good friends at zumba class. One day, Maria approached Atty. Evangeline for legal advice. It turned out that Maria, a nurse, previously worked in the Middle East. So she could more easily leave for work abroad, she declared in all her documents that she was still single. However, Maria was already married with two children. Maria again had plans to apply for work abroad but this time, wished to have all her papers in order. Atty. Evangeline, claiming that she was already overloaded with other cases, referred Maria’s case to another lawyer. Maria found it appalling that after Atty. Evangeline had learned of her secrets, the latter refused to handle her case.

Thereafter, St. Ivan’s filed a disbarment complaint against Atty. Budoy. It claimed that while Atty. Budo has established his own law office, an arrangement was made whereby Tomas and Benedicto Law Offices assign cases for him to handle, and that it can be assumed that Tomas and Benedicto Law Offices collaborate with Atty. Budo in the cases referred to him, creating a conflict of interest. Rule on the complaint with reasons. (2016 Bar) A: I will rule in favor of St. Ivan’s and against Atty. Budoy. St. Ivan’s was a client of Tomas and Benedicto Law Offices, of which Atty. Budoy was an associate attorney. As such, St. Ivan’s was also his client, because of the

Maria’s friendship with Atty. Evangeline

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QUAMTO (1987-2017) principle that when a party hires a law firm, he hires all the lawyers therein. Moreover, Atty. Budoy was in a position to know the information transmitted by St. Ivan’s to the firm. “There is conflict of interest if the acceptance of a new retainer will require the lawyer to perform a act which will injuriously affect his new client in any matter in which he represents him, and also whether he will be called upon in his new relation to use against his first client any knowledge acquired during their relation” (Hornilla v. Salunat, 453 Phil. 108, July 01, 2003).

to another client or invite suspicion of unfaithfulness or double-dealing in the performance thereof. It is improper for a lawyer to appear as counsel for one party against his present client even in a totally unrelated case. With regard to former client, the traditional rule is to distinguish between related and unrelated cases. A lawyer may not represent a subsequent client against former client in a controversy that is related, directly or indirectly, to the subject matter of the previous litigation in which he appeared for the former client, otherwise, he may. However, in the case of Rosacia vs. Atty.B. Bulalacao, 248 SCRA 665, the Supreme Court ruled that a lawyer may not accept a case against a former client, even on an unrelated matter.

“As such, a lawyer is prohibited from representing new clients whose interests oppose those of a former client in any manner, whether or not they are parties in the same action or on totally unrelated cases. The prohibition is founded on the principles of public policy and good taste” (Anglo v. Atty. Valencia, A.C. No. 10567, Feb. 25, 2015).

The Court reiterates that an attorney owes loyalty to his client not in the case in which he has represented him but also after the relation of attorney and client has terminated as it is not good practice to permit afterwards to defend in another case other person against his former client under the pretext that the other case. It behooves respondent not only to keep inviolate the client’s confidence but also to avoid the appearance of treachery and doubledealing for only then can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of justice.

Q: Mrs. F, a young matron, was referred to you for legal advice by your good friend in connection with the matron’s jewelry business. She related to you the facts regarding a sale on consignment of pieces of jewelry to someone she did not name or identify. Since she was referred to you by a close friend, you did not bill her for the consultation. Neither did she offer to compensate you. Six months later, Mrs. G, the wife of the general manager of a client company of your law firm, asked you to defend her in a criminal case for estafa filed by Mrs. F. Would you agree to handle her case? (1997 Bar)

Q: Atty. Belle Montes is a former partner in the Rosales Law Office which is representing Corporation X before the Securities and Exchange Commission. Atty. Montes who is now practicing on his own, entered her appearance as counsel for Corporation Y in a suit between said corporation and Corporation X. Atty. Montes claims that since she did not personally handle the case of Corporation X when she was still with the Rosales Law Office she will not be representing conflicting interests. Is such argument valid? Explain. (1992 Bar)

A: First, I will inquire if the case for estafa filed by Mrs. F against the wife of the general manager is the same matter concerning which Mrs. F consulted me six months before. If it is a same matter, I will not be able to handle the case for the general manager’s wife, because of a conflict of interests. When Mrs. F consulted me and I give her professional advice, a lawyerclient relationship was created between us, regardless of the fact that I was not compensated for it. It would involve a conflict of interests if I will handle the case for the opposite party on the same matter (Hilado v. David, 84 Phil. 571).

A: Atty. Belle Montes will be deemed to be appearing for conflicting interests if she appears for Corporation Y against Corporation X.

Q: Explain your understanding of “Conflict of Interests” under the Code of professional Responsibility. (2009, 1997, 1993 Bar)

This question is similar to the case of Philippine Blooming Mills vs. Court of Appeals. In said case, the Philippine Blooming Mills was the retainer of the ACCRA Law Office. Three lawyers of the ACCRA Law Office separated from said law firm and established their own law office. The three lawyers were disqualified from appearing for a corporation against the Philippine Blooming Mills.

A: A lawyer is prohibited from representing conflicting interests. There is conflict of interests within the context of the rule when, on behalf of client, it is the lawyer’s duty to contend for that which his duty to another client requires him to oppose. Another test is whether the acceptance of a new lawyer-client relation will prevent a lawyer from discharging fully his duty of undivided fidelity and loyalty

The rule which prohibits appearing for conflicting interests applies to law firms. The

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Legal and Judicial Ethics

employment of one member of a law firm is considered as an employment of the law firm and that the employment of a law firm is equivalent to a retainer of the members thereof.

ability, Mr. “I”, the defendant, would like very much to retain you as his defense counsel in a criminal case for homicide through reckless imprudence. Mr. “I” wants you to forthwith enter your appearance, the arraignment already having been scheduled. Would you accept the offer? (1997 Bar)

Q: R is a retained counsel of ABC BankErmita Branch. One day, his balik bayan compadre, B, consulted him about his unclaimed deposits with the said branch of ABC Bank, which the bank had refused to give to him claiming that the account had become dormant. R agreed to file a case against the bank with the Regional Trial Court (RTC) of Manila. B lost the case, but upon the advice of R, he no longer appealed the decision. B later discovered that R was the retained counsel of ABC Bank-Ermita Branch.

A: It depends. If the criminal case for homicide through reckless imprudence is against Mr. “H”, I cannot accept the same for that will involve a conflict of interest, although it is an unrelated case. But if it will not involve Mr. “H”, I can accept the same. However, to avoid suspicion and misunderstanding, it would be better if I inform Mr. “H” about the offer and secure his conformity to my handling the same.

Does B have any remedy? Discuss the legal and ethical implications of the problem. (2014 Bar)

Q: Atty. B acted as counsel for C in a civil case. He also acted as counsel for D against C in another civil case. When D lost his case against C, he filed an administrative complaint against Atty. B for conflict of interests. Decide. (1991 Bar)

A: Atty. R clearly violated the rule against representing conflicting interests (Rule 15.03, Code of Professional Responsibility). B may file an action to set aside the judgment on the theory that if a lawyer is disqualified from appearing as counsel for a party on account of conflict of interests, he is presumed to have impropriety and prejudicially advised and represented the party in the conduct of the litigation from beginning to end. He may also file an action for damages against Atty. R, aside from an administrative complaint due to his misconduct. He was prejudiced by the adverse decision against him, which he no longer appealed upon the advice of Atty. R.

A: If the case of C in the first case is entirely different and not related with the case of D against C, there is no conflict of interests. If the two cases however are related wherein the attorney has knowledge of the evidence of C then there is conflict of interests. Rule 15.01 provides that: A lawyer in conferring with a prospective client shall ascertain as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client. Rule 15.03 further provides that: A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.

Q: You are the counsel for the estate of a deceased person. Your wife is a practicing Certified Public Accountant. She was asked by her client to prepare and submit an itemized claim against the estate you are representing. She asks for your advice on the legal propriety of her client’s claim. What advice would you give her? Explain. (2003 Bar)

Q: The law firm of Sale, Santiago and Aldeguer has an existing and current retainership agreement with XYZ Corporation and ABC Company, both of which were pharmaceutical firms. XYZ Corporation discovered that a number of its patented drugs had been duplicated and sold in the market under ABC Company’s brand names. XYZ Corporation turned to the law firm and asked it to bring suit against ABC Company for patent infringement on several counts. What are the ethical considerations involved in this case and how are you going to resolve them? (1994 Bar)

A: I would advise her that it will be improper for her to handle her client’s claim against the estate. As a counsel for the estate, it is my duty to preserve the estate. Her client’s claim seeks to reduce the said estate. If she will handle such claim, I can be suspected of representing conflicting interests. The interests of the estate and of its creditors are adverse to each other (Nakpil v. Valdez, 288 SCRA 75). Even if she is a different person, the fact that she is my wife will still give rise to the impression that we are acting as one.

A: A lawyer may refuse to accept the representation of a client if he labors under conflict of interests between him and the prospective client or between a present client and the prospective client (Code of Professional Responsibility, Canon 14, Rule 14.03). It is

Q: You are the lawyer of Mr.”H”, the plaintiff, in a civil case for rescission of contract. The prospects for an amicable settlement look bright. Impressed by your

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QUAMTO (1987-2017) unprofessional for a lawyer to represent conflicting interests, except by express consent of all concerned given after full disclosure of the fact (Canons of Professional Ethics, Canon 6). A lawyer cannot accept a case against a present client either in the same case or in a totally unrelated case.

interests. It is unethical for a lawyer to represent a client in a case 
 against 2.

Q: Atty. Juan Cruz, a practicing lawyer, was employed by Pilipinas Bank as its bank attorney and notary public in three of its branches in Manila. While thus employed, Maria del Rio, who was unaware of Atty. Cruz’s employment in the bank, engaged Atty. Cruz’s services as a lawyer in a case that was filed by Pilipinas Bank for collection of sum of money involving one of its branches in Quezon City which Atty. Cruz accepted. The Quezon City Regional Trial Court, after due proceeding and hearing, rendered judgment in favor of Pilipinas Bank and against Maria del Rio who wanted to appeal the adverse judgment. But upon advice of Atty. Cruz, the adverse judgment was not appealed. Thereafter, Maria del Rio learned Atty. Cruz was employed by Pilipinas Bank as one of its attorneys. She now consults with you and asks you to take legal steps against Atty. Cruz for his apparent misconduct. What do you think of what Atty. Cruz did? Is there a valid and legal basis to discipline him? (2006, 1999 Bar)

Q: Atty. Japzon, a former partner of XXX law firm, is representing Kapuso Corporation in a civil case against Kapamilya Corporation whose legal counsel is XXX law firm. Atty. Japzon claims that she never handled the case of Kapamilya Corporation when she was still with XXX law firm. Is there a conflict of interests? Explain. (2005 Bar) A: There is a conflict of interests when a lawyer represents inconsistent interests. This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used. Also, there is conflict of interests if the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation to use against his first client any knowledge acquired through their connection (Santos vs. Beltran, 418 SCRA 17). Since Atty. Japzon was a partner of the XXX law firm which has Kapamilya Corporation as its client, she cannot handle a case against it as such will involve conflict of interests. The employment of a law firm is equivalent to the retainer of the memberstherof. It does not matter if Atty. Japzon never handled a case of the Kapamilya Corporation when she was still with the XXX law firm.

A: In agreeing to represent Maria del Rio in a case which Pilipinas Bank filed against her, Atty. Cruz violated the rule against representing conflicting interests. Rule 15.03 of the Code of Professional Responsibility provides that a lawyer shall not represent conflicting interests except by written consent of all concerned after a full disclosure of the facts. It is improper for a lawyer to appear as counsel for a person whose interest conflicts with that of his present or former client, even in an unrelated case (Philippine National Bank v. Cedo, 243 SCRA 1). It does not matter that the Pilipinas Bank branch in Quezon City is not one of the branches he services in Manila. The bank itself is his client. This constitutes malpractice for which Atty. Cruz can be disciplined.

Representation with zeal within legal bounds Q: Winnie retained the services of Atty. Derecho to file a collection case against Carmen. Winnie paid Atty. Derecho a sizeable retainer’s fee which the latter accepted. Later, in the process of determining the amount of debt to be collected from Carmen, Atty. Derecho noticed that of the total claim of 8.5 Million, certain invoices covering 3.5 Million appeared to be irregular. Winnie while admitting the irregularity assures her lawyer that there would be no problem as Carmen was by nature negligent in keeping her records and would not notice the mistakes anyway. Atty. Derecho tried to convince Winnie to exclude the amount of 3.5 Million but Winnie refused. As a

Q: Huey Company and Dewey Corporation are both retainer clients of Atty. Anama. He is the Corporate Secretary of Huey Company. He represents Dewey Corporation in three pending litigation cases. Dewey Corporation wants to file a civil case against Huey Company and has requested Atty. Anama to handle the case. What are the options available to Atty. Anama? Explain your answer. (1993 Bar) A: The options available to Atty. Anama are: 1.

another client in the said case. 
 To accept to file the case against Huey Company, after full disclosure to both retained clients and upon their express and written consent. The written consent may free him from the charge of representing conflicting interests, because written consent amounts to a release by the clients of the lawyer’s obligation not to represent conflicting interests.

To decline to accept the case because to do so will constitute representing conflicting

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Legal and Judicial Ethics

consequence Atty. Derecho terminated their relationship and withdrew from the case. Was Atty. Derecho right in terminating their relationship and withdrawing from the case? How about the fact that he had already accepted a sizeable retainer’s fee from his client? Discuss fully. (1995 Bar)

answer. (1990 Bar) A: The client may charge his lawyer with misconduct for not accounting for the balance on P9, 000.00. It is well-settled that where the client gives his lawyer money for a specific purpose, such as to pay the docket fees for the filing of an action in court, so much of the money not used for the purpose belongs to the client and the lawyer holds in it trust for him. And it is the lawyer’s duty to promptly account for all money received from his client. For this reason, the lawyer’s failure to account for the balance of the money not spent for filing fees will render him liable for misappropriation, which is a ground for disbarment.

A: Atty. Derecho was right in terminating the lawyer-client relationship and withdrawing from the case. Rule 22.01 of the Code of Professional Responsibility provides that a lawyer may withdraw his services when the client pursues an illegal or immoral course of conduct in connection with the matter he is handling, or when the client insists that the lawyer pursue conduct violative of the canons and rules. Rule 15.07 provides that a lawyer shall impress upon his client compliance with the laws and the principles of fairness. While he owes his client warm zeal, it should always be within the bounds of the law (Code of Professional Responsibility, Canon 19). The fact that Atty. Derecho had already accepted a sizeable retainer’s fee should make no difference on his decision to withdraw. Moreover, he may retain the fees he has already received, his withdrawal being justified (Pineda, Legal & Judicial Ethics, 1994 edition, p. 223), unless the same is unconscionable.

Client’s moneys and properties; Fidelity to client’s cause Q: C engaged the services of attorney D concerning various mortgage contracts entered into by her husband from whom she is separated fearful that her real estate properties will be foreclosed and of impending suits for sums of money against her. Attorney D advised C to give him her land titles covering her lots so he could sell them to enable her to pay her creditors. He then persuaded her to execute deeds of sale in his favor without any monetary or valuable consideration, to which C agreed on condition that he would sell the lots and from the proceeds pay her creditors. Later on, C came to know that attorney D did not sell her lots but instead paid her creditors with his own funds and had her land titles registered in his name. Did attorney D violate the Code of Professional Responsibility? Explain. (2009, 2007 Bar)

Q: What are the three (3) tests to determine conflict of interest for practicing lawyers? Explain each briefly. (2009 Bar) A: 1.

2.

When in representation of one client, a lawyer is required to fight for an issue or claim, but is also duty bound to oppose it for another client; When the acceptance of the new retainer will require an attorney to perform an act that may injuriously affect the first client or when called upon in a new relation to use against the first client any knowledge acquired through their professional connection;

A: The decision of the Supreme Court in the case of Hernandez v. Go (450 SCRA 1) is squarely applicable to this problem. Under the same set of facts, the Supreme Court held the lawyer to have violated Canons 16 and 17 of the Code of Professional Responsibility, which provide as follows:

When the acceptance of a new relation would prevent the full discharge of an attorney’s duty to give undivided fidelity and loyalty to the client or would invite suspicion of unfaithfulness or double-dealing in the performance of that duty (Northwestern University v. Arquillo, 415 SCRA 513 [2005]).

Canon 16. A lawyer shall hold in trust all moneys and properties of his client hat may come into his possession.

CLIENT’S MONEYS AND PROPERTIES

The Supreme Court further held that the lawyer concerned has engaged in deceitful, dishonest, unlawful and grossly immoral acts, which might lessen the trust and confidence reposed by the public in the fidelity, honesty, and integrity of the legal profession, consequently, the Court disbarred him.

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.

Fiduciary relationship Q: A lawyer charged his client P10, 000.00 for filing fees pertaining to the complaint he filed in court. He actually spent only P1, 000.00. He did not account the balance. May his client charge him for misconduct as a member of the Philippine bar? Explain your

UST BAR OPERATIONS

Delivery of Funds

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QUAMTO (1987-2017) Q: D was charged with estafa by C before the barangay for misappropriating the proceeds of sale of jewelry on commission. In settlement of the case, D turned over to the barangay captain, a lawyer, the amount of P2,000.00 with the request that the barangay captain turn over the money to C. Several months passed without C being advised of the status of her complaint. C contacted D who informed her that she (D) had long before turned over the amount of P2, 000.00 to the barangay captain who undertook to give the money to her (C). C thus filed a case against the barangay captain who at once remitted the amount of P2,000.00 to C. May the barangay captain be faulted administratively? Explain. (2000 Bar)

Competence and diligence a.

Adequate protection

Q: X was indicted for murder. As he had no counsel on arraignment, the trial court appointed Atty. A as his counsel de oficio. When Atty. A asked X what was his stand, X said he was guilty. X thereupon pleaded guilty. Trial was thereafter conducted. When the turn of the defense to present evidence came, Atty. A manifested that he was not presenting any and that he was submitting the case for decision, praying that X’s plea be considered mitigating. Did Atty. A’s assistance or conduct approximate the competence and diligence which the Code of Professional Responsibility expected of him? Explain. (2000 Bar)

A: Yes. The Code of Professional Responsibility applies to lawyers who are in the government service. As a general rule, a lawyer who holds a government office may not be disciplined as a member of the bar for misconduct in the discharge of his office as a government official. However, if that misconduct as a government official is of such character as to affect his qualification as a lawyer or to show moral delinquency, then he may be disciplined as a member of the bar on such ground (Dinsay v. Ctoco, 264 SCRA 703 [1996]). In the case of Penticostes v. Ibanez, 304 SCRA 281 [1999], a barangay captain who failed to remit for several months the amount given to him for payment of an obligation, was found to have violated the Code of Professional Conduct.

A: No. It is the duty of defense counsel when his client desires to enter a plea of guilty to fully acquaint himself with the facts and surrounding circumstances of the case, advise his client of his constitutional rights and the full import of a plea of guilty, see to it that the prescribed procedure is observed, present evidence, including possible mitigating circumstances, so that the precise degree of his client's culpability is established and the appropriate penalty is imposed, and thus leave no room for doubt that there was a mistake or misunderstanding as to the nature of the charges to which his client has pleaded guilty. Atty. A has fallen short of this required conduct.

Q: Marlyn, a widow engaged the services of Atty. Romanito in order to avert the foreclosure of several parcels of land mortgaged by her late husband to several creditors. Atty. Romanito advised the widow to execute in his favor deeds of sale over the properties, so that he could sell them and generate funds to pay her creditors. The widow agreed. Atty. Romanito did not sell the properties, but paid the mortgage creditors with his own funds, and had the land titles registered in his name. Atty. Romanito succeeds in averting the foreclosure. Is he administratively liable? Reasons. (2009 Bar)

b. Negligence Q: Nene approached Atty. Nilo and asked him if it was alright to buy a piece of land which Maneng was selling. What was shown by Maneng to Nene was an Original Certificate of Title with many annotations and old patches, to which Nene expressed suspicion. However, Atty. Nilo, desirous of pushing through with the transaction because of the high notarial fee promised to him, told Nene that the title was alright and that she should not worry since he is an attorney and that he knew Maneng well. He notarized the Deed of Sale and Nene paid Maneng P 108,000.00. It turned out that Maneng had previously sold the same property to another person. For the injustice done to Nene, may Atty. Nilo be disciplined? (1998 Bar)

A: Yes, Atty. Romanito is administratively liable. The basic facts in this case are the same as the facts in Hernandez v. Go (450 SCRA 1 [2005]), where the Supreme Court found the lawyer to have violated Canons 16 and 17 of the Code of Professional Responsibility, and disbarred him. The Supreme Court held that a lawyer’s acts of acquiring for himself the lots entrusted to him by his client are, by any standard, acts constituting gross misconduct. The lawyer in that case was disbarred.

A: Yes. Atty. Nilo is guilty of gross negligence in protecting the interests of his client. A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable (Rule 18.03, Code of Professional Responsibility). Worse, he was negligent because he placed his own interest in receiving a high notarial fee over and above the

FIDELITY TO CLIENT’S CAUSE

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Legal and Judicial Ethics

Interest of his client. In the case of Nadayag v. Grageda, 237 SCRA 202, which involves similar facts, the Supreme Court held that the lawyer "should have been conscientious in seeing to it that justice permeated every aspect of a transaction for which his services had been engaged, in conformity with the avowed duties of a worthy member of the Bar."

objection of the original counsel? (2014, 1989 Bar) A: Yes, the client is entitled to have as many lawyers as he can afford. Professional courtesy, however, demands that a lawyer retained as a collaborating counsel should at least communicate with the original counsel and should at least communicate with the original counsel before entering his appearance. On the part of the original counsel, he should not look at the employment of a collaborating counsel as a loss of confidence in him.

Q: May a lawyer be held liable for damages by his client for the lawyer’s failure to file the necessary pleadings to prosecute the client’s case and as a result of which the client suffered damages? (2014 Bar)

Q: Atty. A objects to the collaboration of Atty. B as proposed by Client C in a pending case. How would A, B and C handle the situation? (2001 Bar)

A: Yes, he may be held liable. Rule 18.03 of the Code of Professional Responsibility provides that “a lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable.” But attorney-client relationship, want of reasonable care and diligence, and injury sustained by the client as the proximate result thereof, are the prerequisites to the maintenance of an action for damages against a lawyer.

A: A, B, and C may handle the situation in the following manner: a.

Q: a.

State the rule on whether a client is bound by the mistake of his counsel. b. On account of his mistake, is counsel liable to his client for damages? Explain. (2002 Bar)

b.

A: a.

b.

c.

A client is bound by the mistakes of his lawyer [Cabales v. fiery, 94 SCRA 374 (1979); Valerio v. Secretary of Agriculture, 7 SCRA 719(1963)]. However, when the lawyer has practically sold his client down the river or when the negligence is so gross that the client was deprived of due process, the client is not bound by the negligence of the lawyer [PHHC v. Tiongco, 12 SCRA 471(1964); San Miguel Corp. v. Laguesma, 236 SCRA 595(1994)]. A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall make him liable (Rule 18.03, Code of Professional Responsibility). A client who suffers prejudice by reason of his counsel’s inexcusable negligence in the discharge of his duty may file an action for damages against him. However, there must be a showing that had the lawyer exercised due diligence, the client under the facts and the law would have succeeded in recovering from the adverse party or in resisting the claim of the latter.

c.

REPRESENTATION WITH ZEAL WITHIN LEGAL BOUNDS Use of fair and honest means Q: Under Canon 19 of the Code of Professional Responsibility, "a lawyer shall represent his client with zeal within the bounds of the law." How far, in general terms, may a lawyer go in advocating, supporting and defending the cause of his client in a criminal case filed against the latter? (2003, 1997 Bar) A: The right to counsel must be more than just the presence of a lawyer in the courtroom or the mere propounding of standard questions and objections. The right to counsel means that the accused is simply accorded legal assistance extended by a counsel who commits himself to

Collaborating counsel

Q: May a client hire additional counsel as collaborating counsel over and above the

UST BAR OPERATIONS

"A" can offer to withdraw his services. Rule 22.01(c) of the Code of Professional Responsibility allows a lawyer to withdraw his services if his inability to work with co-counsel will not promote the best interest of his client. Here, by objecting to the collaboration of Atty. B, Atty. A foresees his inability to work with the former. “A” may with withdraw to give his client a free hand in protecting his interest. "B" should refuse to accept the case, otherwise, he may be encroaching on the professional employment of another lawyer. A lawyer should decline association as colleague if it is objectionable to the original counsel, but if the lawyer first retained is relieved, another may come into the case (Canon 7, Canons of Professional Ethics). "C" the client must choose only one of the lawyers. If he wants Atty. B as his lawyer, he should formally terminate the services of "A" so "B" can formally enter his appearance in the case.

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QUAMTO (1987-2017) the cause of the defense and acts accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind the basic rights of the accused, his being well-versed on the case, and his knowing the fundamental procedure, essential laws and existing jurisprudence. The right of an accused to counsel finds substance in the performance by the lawyer of his sworn duty of fidelity to his client. Tersely put, it means an efficient and truly decisive legal assistance and not a simple perfunctory representation. (People v. Bemas, 306 SCRA 293 [1999], cited in People v. Sta. Teresa, 354 SCRA 697 [2001]). However, a lawyer shall employ only honorable and honest means in the maintenance of his client’s cause. (Section 20, Rule 128).

Code? Explain your answer. (2017, 2010 Bar) A: No. Atty. Hamilton is not liable for violation of the Code of Professional Responsibility and the Civil Code. The agreement on a success fee of P50,000.00 and 500 sq. m. of the land involved in the case is valid. The parties entered into a contingent fee contract that is allowed under Canon 20, Rules 20.01 of the Code of Professional Responsibility and Canon 13 of the Code of Professional Ethics. A contract for a contingent fee is not covered by Article 1491 because the transfer or assignment of the property in litigation takes effect only after the finality of a favorable judgment (Director of Lands v. Ababa, G.R. No. L-26096 February 27, 1979).

Client’s fraud

Q: The spouses Manuel were the registered owners of a parcel of land measuring about 200,000 square meters. On May 4, 2008, the spouses Manuel sold the land for P3,500,000.00 to the spouses Rivera who were issued a certificate of title for said land in their names. Because the spouses Rivera failed to pay the balance of the purchase price for the land, the spouses Manuel, through Atty. Enriquez, instituted an action on March 18, 2010 before the Regional Trial Court (RTC) for sum of money and/or annulment of sale, docketed as Civil Case No. 1111. The complaint in Civil Case No. 1111 specifically alleged that Atty. Enriquez would be paid P200,000.00 as attorney’s fees on contingent basis. The RTC subsequently promulgated its decision upholding the sale of the land to the spouses Rivera. Atty. Enriquez timely filed an appeal on behalf of the spouses Manuel before the Court of Appeals. The appellate court found for the spouses Manuel, declared the sale of the land to the spouses Rivera null and void, and ordered the cancellation of the spouses Rivera’s certificate of title for the land. The Supreme Court dismissed the spouses Rivera’s appeal for lack of merit. With the finality of judgment in Civil Case No. 1111 on October 20, 2014, Atty. Enriquez filed a motion for the issuance of a writ of execution.

Q: Atty. A discovered his client's fraud against the adverse party. What steps should he take so that his client will secure only that which is legally and justly due him? (2001 Bar) A: A lawyer who has received information that his client has, in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he shall terminate the relationship with such client in accordance with the Rules of Court (Rule 19.02, Code of Professional Conduct). Attorney’s Fees a.

Contingency fee arrangements

Q: For services to be rendered by Atty. Hamilton as counsel for Gener in a civil case involving the recovery of the ownership and possession of a parcel of land with an area of 5,000 square meters, the two of them agreed on a success fee for Atty. Hamilton of P50,000.00 plus 500 square meters of the land. The trial court ultimately rendered judgment in favor of Gener, and the judgment became final and executory. After receiving P50,000.00, Atty. Hamilton demanded the transfer to him of the promised 500 square meters of the land.

Meanwhile, the spouses Rivera filed on November 10, 2014 before the RTC a case for quieting of title against the spouses Manuel, docketed as Civil Case No. 2222. The spouses Manuel, again through Atty. Enriquez, filed a motion to dismiss Civil Case No. 2222 on the ground of res judicata given the final judgment in Civil Case No. 1111.

Instead of complying, Gener brought an administrative complaint charging Atty. Hamilton with violation of the Code of Professional Responsibility and Art. 1491(5) of the Civil Code for demanding the delivery of a portion of the land subject of the litigation.

Pending the resolution of the motion to dismiss in Civil Case No. 2222, the RTC granted on February 9, 2015 the motion for issuance of a writ of execution in Civil Case

Is Atty. Hamilton liable under the Code of Professional Responsibility and the Civil

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Legal and Judicial Ethics

No. 1111 and placed the spouses Manuel in possession of the land. Atty. Enriquez, based on a purported oral agreement with the spouses Manuel, laid claim to ½ of the land, measuring 100,000.00 square meters with market value of P1,750,000.00, as his attorney’s fees.

champertous contract which is invalid because the lawyer undertakes to shoulder the expenses of the litigation. However, the amount of the fee agreed upon may be reduced by the courts if it should be unconscionable. Fifty percent (50%) of what the client might recover may or may not be unconscionable depending on the factors to be considered in determining the reasonableness of an attorney's fee.

Atty. Enriquez caused the subdivision of the land in two equal portions and entered into the half he appropriated for himself. Based on the professional and ethical standards for lawyers, may Atty. Enriquez claim ½ of the land as his contingency fee? Why? (2015 Bar)

Q: Atty. A’s services as a lawyer were engaged by B to recover from C certain construction materials and equipment. Because B did not have the means of defray the expenses of litigation, he proposed to Atty. A that he (A) shoulders all expenses of the litigation and he (B) would pay him (A) a portion of the construction materials and equipment to be recovered as compensation for his professional services.

A: Atty. Enriquez may not claim ½ of the land as his contingency fee. In the first place, a lawyer cannot charge his client a contingent fee or a percentage of the amount recovered as his fees in the absence of an express contract to that effect (Corpus v. Court of Appeals, G.R. No. L-40424, June 30, 1980, 98 SCRA 424). There is no such contract in this case. As a matter of fact, the claim of a purported oral agreement for a contingency fee of ½ of the land is contradicted by the allegation in the Complaint in Civil Case No. 1111 for a contingency fee of P200,000.00 only.

May Atty. A correctly agree to such arrangement? (1999 Bar) A: No, Atty. A may not correctly agree to such an agreement. Such an arrangement would constitute a champertous contract which is considered void due to public policy, because it would make him acquire a stake in the outcome of the litigation which might lead him to place his own interest above that of the client (Bautista v. Gonzales, 182 SCRA 151). A champertous contract is one in which a lawyer undertakes to prosecute a case, and bear all the expenses in connection therewith without right of reimbursement, and will be paid his fees by way of a portion of the property or amount that may be recovered, contingent on the success of his efforts. It is different from a contingent fee contract, which is valid, in which the lawyer will also be paid depending on the success of his efforts, but he does not undertake to shoulder all the expenses in the case. He may advance such expenses but always subject to reimbursement by his client.

Moreover, the amount claimed as contingent fee appears to be excessive and unreasonable. The issue involved in the case was simple and did not require extensive skill, effort and research on the part of Atty. Enriquez. Furthermore, Atty. Enriquez caused the division of the land and appropriate one half thereof, pending resolution of the motion to dismiss in Civil Case No. 2222. This constitutes a violation of Article 1491 of the New Civil Code, because the case in which the property is involved has not yet been terminated (The Conjugal Partnership of the Spouse Cadavedo v. Victorino T. Lacaya, G.R. No. 173188, January 15, 2014). Q: Atty. CJ handled the case for plaintiff GE against defendant XY in an action for damages. Judgment was rendered for plaintiff GE. When a writ of execution was issued, the sheriff levied on a 400 square meter lot of defendant XY. Pursuant to their contingent fee contract, plaintiff GE executed a deed of assignment in favor of Atty. CJ of one-half of the lot. Atty. CJ accepted the assignment. Is the contract for contingent fee valid? Explain. (2002 Bar)

Q: Chester asked Laarni to handle his claim to a sizeable parcel of land in Quezon City against a well-known property developer on a contingent fee basis. Laarni asked for 15% of the land that may be recovered or 15% of whatever monetary settlement that may be received from the property developer as her only fee contingent upon securing a favorable final judgment or compromise settlement. Chester signed the contingent fee agreement.

A: Contract for contingent fee is a contract wherein the attorney’s fee, usually a percentage of what may be recovered in the action, is made to depend upon the success of the lawyer in enforcing or defending his client’s right. It is a valid contract, unlike a

Assume the property developer settled the case after the case was decided by the Regional Trial Court in favor of Chester for P1 Billion. Chester refused to pay Laarni PI50 Million on the ground that it is excessive. Is the refusal justified?

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30

QUAMTO (1987-2017) Explain. (2008 Bar)

Q:Define an attorney's retaining lien. (2000, 1998 Bar)

A: The refusal of Chester to pay is unjustified. A contingent fee is impliedly sanctioned by Rule 20.01 (f) of the CPR. A much higher compensation is allowed as contingent fees in consideration of the risk that the lawyer will get nothing if the suit fails. In several cases, the Supreme Court has indicated that a contingent fee of 30% of the money or property that may be recovered is reasonable. Moreover, although the developer settled the case, it was after the case was decided by the Regional Trial Court in favor of Chester, which shows that Atty. Laarni has already rendered service to the client.

A: A retaining lien is the right of an attorney to retain the funds, documents, and papers of his client which have lawfully come into his possession until his lawful fees and disbursements have been paid, and to apply such funds to the satisfaction thereof (Sec. 37, Rule 138, Rules of Court). Q: Upon being replaced by Justice C, Atty. B, the former counsel of the parents of the victims of the OZONE Disco tragedy, was directed to forward all the documents in his possession to Justice C. Atty. B refused, demanding full compensation pursuant to their written contract. Sensing that a favorable Judgment was forthcoming, Atty. B filed a motion in court relative to his attorney’s fees, furnishing his former clients with copies thereof. Is Atty. B legally and ethically correct in refusing to turn over the documents and in filing the motion? Explain. (1998 Bar)

ALTERNATIVE ANSWER: Chester’s refusal to pay Atty. Laarni P150 million as attorney’s fees on the ground that it is excessive, is justified. In the case of Sesbreno v. Court of Appeals (245 SCRA 30 [1995]), the Supreme Court held that “contingent fee contracts are under the supervision and close scrutiny of the court in order that clients may be protected from unjust charges” and that “its validity depends on a large measure on the reasonableness of the stipulated fees under the circumstances of each case.” Also, “stipulated attorney’s fees are unconscionable whenever the amount is by far so disproportionate compared to the value of the services rendered as to amount to fraud perpetuated against the client.” Considering the circumstances that the case was decided by settlement of the property developer, the attorney’s fee of P150 Million would be unconscionable.

A: Atty. B is legally and ethically correct in refusing to turn over the documents. He is entitled to a retaining lien which gives him the right to retain the funds, documents and papers of his client which have lawfully come to his possession until his lawful fees and disbursement have been paid (Sec. 37, Rule 138. Rules of Court. Rule 16.03, Code of Professional Responsibility). Likewise, he is legally and ethically correct in filing a motion in court relative to his fees. He is entitled to a charging lien upon all judgments for the payment of money, and executions issued in pursuance of such judgments, which he has secured in a litigation of his client, from and after the time when the records of the court rendering such judgment or issuing such execution (ibid.)

b. Attorney’s Liens Q: M engaged the services of Atty. D to prosecute his annulment of marriage case in the Regional Trial Court (RTC). After a long-drawn trial, Atty. D was able to secure a favourable judgment from the court. Unfortunately, M failed to pay in full the stipulated attorney’s fees of Atty. D. How can Atty. D collect his fees from M? Discuss fully. (2014 Bar)

Q: Harold secured the services of Atty. Jarencio to collect from various debtors. Accordingly. Atty. Jarencio filed collection cases against the debtors of Harold and in fact obtained favorable Judgments in some. Atty. Jarencio demanded from Harold his attorney’s fees pursuant to their agreement but Harold refused. When one of the defendants paid his indebtedness of 20,000.00 through Atty. Jarencio, the latter refused to turn over the money to Harold; instead, Atty. Jarencio applied the amount to his attorney’s fees having in mind the provisions of the Civil Code on legal compensation or set-off to justify his act.

A: He can allot his fees either by filing a motion in the annulment of marriage case that he handled, and to order M to pay the same, or he can file a separate action for the recovery of his attorney’s fees. Of the two, the first is preferable because the judge in the annulment case will be in a better position to evaluate the amount and value of his services. In the meantime, he may avail of the retaining lien, which is to retain the moneys and properties of M in his possession until he is paid for his services, or a charging lien, which is to charge the money judgment in the case for the payment of his fees.

Was Atty. Jarencio correct in refusing to turn over to his client the amount he collected? Discuss fully. (1995 Bar) A: A lawyer has a retaining lien which entitled him to retain possession of a client’s document,

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Legal and Judicial Ethics

money or other property which come into the hands of the attorney professionally, until the general balance due him for professional services is paid. Under Rule 138, Section 37 of the Rules of Court, the attorney cannot be compelled to surrender the documents in his possession without prior proof that his fees have been duly satisfied.

A retaining lien is general lien; it may be resorted to in order to secure payment of the lawyer’s fees in all the cases he has handled and services he has rendered to the client. A charging lien is a special lien; it can be utilized for the purpose of collecting only the unpaid fees and disbursements of the lawyer in the case where the judgment for a sum of money may be secured.

However, Atty. Jarencio here cannot appropriate the sum of 20,000.00. If there is a dispute between him and Harold as to the amount of the fees that he can collect, what he should do if Harold disputes the amount of the fees he is entitled, he must file an action for the recovery of his fee or record a charging lien so that the court can fix the amount to which he is entitled.

c. Q: a.

Explain the doctrine of quantum meruit in determining the amount of attorney’s fees. b. Identify the factors to be considered in determining attorney’s fees on a quantum meruit basis. (2015, 2014, 2007, 1998 Bar)

Q: The vendor filed a case against the vendee for the annulment of the sale of a piece of land. Assume the vendee obtained a summary judgment against the vendor. Would the counsel for the defendant vendee be entitled to enforce a charging lien? Explain. (2008 Bar)

A: a.

A: A charging lien, to be enforceable as security for payment of attorney’s fees, requires as a condition sine qua nona judgment for money and execution in pursuance of such judgment secured in the main action by the attorney in favor of his client (Metropolitan Bankv. Court of Appeals,181 SCRA 367 [1990]). A summary judgment against the vendor in this case only means that his complaint was dismissed. This is not a judgment for payment of money, hence, a charging lien cannot attach. However, if the judgment should include a money judgment in favor of the vendee on his counterclaim, a charging lien can properly be enforced.

b.

Q: Differentiate “retaining lien” from “charging lien” (2016 Bar) A: A retaining lien gives the lawyer the right to retain the funds, documents and papers of the client which have lawfully come into his possession, until his lawful fees and disbursements have been paid. A charging lien is a lien upon all judgments for payment of sum of money and executions thereof, to ensure payment of his fees and disbursements in the said case.

Quantum meruit means as much as the services of a lawyer are worth. Recovery of attorney’s fees on the basis of quantum meruit is authorized when (1) there is no express contract for the payment of attorney’s fees; (2) although there is a contract for attorney’s fees, the fees stipulated are found unconscionable by the court; (3) the contract for attorney’s fees is void due to formal defects of execution; (4) the lawyer was not able to finish the case for justifiable cause; (5) the lawyer and the client disregard the contract for attorney’s fees; and (6) the client dismissed his counsel or the latter withdrew therefrom, for valid reasons. The factors are those set in Rule 20.01 of the Code of Professional Responsibility (CPR), as follows: i. ii. iii. iv. v. vi.

A retaining lien is a passive lien; the lawyer is not required to perform any act except to hold on to the client’s funds, documents and papers, until his fees and disbursements are paid. A charging lien is an active lien; the lawyer is required to file a motion in court, with copy served on the adverse party, to have a statement of his claim to such fees and disbursements charged or attached to the decision in such case and executions thereof.

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Fees and controversies with clients (Quantum Meruit)

vii.

viii. ix.

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the time spent and the extent of the services rendered or required; the novelty and difficulty of the questions involved; the importance of the subject matter; the skill demanded; the probability of losing other employment as a result of acceptance of the proffered case; the customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs; the amount involved in the controversy and the benefits resulting to the client from the service; the contingency or certainty of compensation; the character of the employment, whether occasional or established; and

QUAMTO (1987-2017) x.

the professional standing of the lawyer.

Extraordinary concept Q: A real estate company, elated over the decision in a case regarding a dispute over a personal matter between its top sales representative and his neighbor, gifted Atty. O, who represented its sales representative in the litigation, with a 240square-meter lot in its newly developed subdivision. The case handled by Atty. O had nothing to do with the sales representative in the litigation, with a 240 square-meter lot in its newly developed subdivision. The case handled by Atty. O had nothing to do with the sales representative's work for the real estate company. The latter's offer of the lot, which Atty. O accepted, was in consideration of its sales representative’s being the firm's Number One salesman. Was there a breach of the Code of Professional Responsibility by Atty. O when he accepts the 240 squaremeter lot? (1997 Bar)

Q: Define champerty. (2017, 2000 Bar) A: Champerty is any agreement by a lawyer to conduct the litigation in his own account, to pay the expenses thereof or to save his client therefrom and to receive as his fee a portion of the proceeds of the judgment. It is contrary to public policy as it violates the fiduciary relationship between the lawyer and his client (Spouses Cadavedo v. Lacaya, G.R. No. 173188, January 15, 2014). Q: A inherited a parcel of land situated in Batasan Hills which is occupied by informal settlers. He wants to eject the occupants, but he has no financial means to pursue the ejectment case. He contracted the services of Atty. B, who agreed to defray all the expenses of the suit on the condition that he will be paid one-half (1/2) of the property to be recovered as his compensation.

A: Rule 20.03 of the Code of Professional Responsibility provides that a lawyer shall not, without the full knowledge and consent of the client, accept any fee, reward, costs, commission, interests, rebate of forwarding allowance or other compensation whatsoever related to his professional employment from anyone other than the client.

What is the kind of attorney’s fees? Can Atty. B enforce this contract against A? What are the respective remedies relative to the collection of attorney’s fees, if any, of A and Atty. B against each other? (2014, 2010, 1988 Bar) A: This is a champertous fee agreement because Atty. B agreed to defray all the expenses of the action and will be paid only if he is successful in recovering A’s property. Atty. B cannot enforce it because it is contrary to public policy and the ethics of the legal profession. The remedy of A is to file an action to have the agreement declared null and void, or simply to refuse to pay attorney’s fees to Atty. B on the basis of the said agreement. On the other hand, Atty. B will still be entitled to collect attorney’s fees on a quantum meruit basis. He may bring an action to collect such fees.

There should be no room for suspicion on the part of the client that his lawyer is receiving compensation in connection with the case from third persons with hostile interests (Report of IBP Committee, p. 112). Even if the secret compensation comes from a friendly person, if the act is discovered, it is bound to create dissension in the client-lawyer relationship. Worse, the lawyer will be able to enrich himself by receiving more than what is due him as attorney’s fees (Pineda. Legal & Judicial Ethics, 1995 ed. p. 243). ALTERNATIVE ANSWER:

Q: Discuss the propriety of a lawyer filing a suit against his client concerning his fees. (1998 Bar)

The gift of the real estate company does not come from the adverse party, hence, there is no violation of the lawyer is duty of loyalty to his clients. The property given was not his client's property involved in the litigation. Hence, it does not violate Article 1491 of the Civil Code. The lawyer's acceptance of the gift is proper. However, it would be better if he informs his client.

A: Rule 20.04 of the Code of Professional Responsibility provides that “a lawyer shall avoid controversies with his clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice or fraud.” The legal profession is not a moneymaking trade but a form of public service. Lawyers should avoid giving the impression that they are mercenary (Perez v. Scottish Union and National Insurance Co., 76 Phil. 325). It might even turn out to be unproductive for him for potential clients are likely to avoid a lawyer with a reputation of suing his clients.

Q: Deciding a case for malicious prosecution, Judge Sales awarded attorney's fees and expenses of litigation, in addition to exemplary damages, to the plaintiff. a.

d. Concepts of Attorney’s fees

33

Did the judge act within his discretion in awarding attorney's fees?

Legal and Judicial Ethics

b. As counsel for the plaintiff, are you entitled to receive the attorney's fees thus awarded in addition to your stipulated legal fees? (1994 Bar)

Gregory and the others, the public prosecutor approaches you (as the least guilty person who will qualify for a discharge as a state witness) and offers to make you a state witness. Should you accept the offer? Explain your answer.

A: a.

b.

A party may recover attorney's fees in cases of malicious prosecution against him in an action for damages against the party responsible therefore (Art. 2208 (3), Civil Code). But he must prove not only that he was acquitted in the criminal action, but that the person who charged him knowingly made a false statement of facts to induce the prosecutor to prosecute or that the institution of the criminal action was prompted by a sinister design to vex or humiliate him and to cast upon him dishonor and disgrace. No. Attorney’s fees in the concept or as an item of damages is an indemnity for damages sustained by the client, and belongs to him.

B. Under the facts of the preceding question, assume that you had resigned from the Brando & Luzon Law Office prior to the filing of the money laundering case against Gregory and the others, and that you were not implicated in the case. However, you had assisted in handling the Cobra Co. account during your time with the law firm. Cobra Co. was largely owned by Cable Co. The public prosecutor handling the case against Gregory and the others asks you, as a former member of the Brando & Luzon Law Office, to help strengthen the case for the Government, and hints that you may be implicated in the case if you do not cooperate. What is your legal and ethical course of action? Explain your answer. (2017, 2013 Bar)

Q: A, after taking his oath as a lawyer in 1985, was maliciously charged with the crime of seduction by Amor, his former girlfriend. Her parents instigated the filing of the case. A appeared for and defended himself. In the decision acquitting him, the court explicitly stated that he was a victim of malicious prosecution. A then filed a complaint for damages and attorney’s against Amor and her parents. A likewise appeared for himself in the case. Can her recover attorney’s fees? (1991 Bar)

A: A. No. The information acquired involving the criminal case against Gregory is covered by the privileged communications rule. Rule 15.02of the Code of Professional Responsibility provides that “A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client.” There being a lawyer-client relationship between the parties, the lawyer cannot serve as a state witness and disclose the information obtained from his client.

A:No. Attorney A is not entitled to attorney's fees. He may, however, be entitled to attorney’s fees in the form of damages upon proof of bad faith of the defendant and a definite ruling be made by the court on the claim. PRESERVATION OF CLIENT’S CONFIDENCES

B. Decline to testify against the defendants and to provide evidence in the case as the attorney-client privilege lasts even beyond the termination of the relationship.

Prohibited disclosures and use Q:

The duty of a lawyer to preserve his client’s secrets and confidence outlasts the termination of the attorney-client relationship, and continues even after the client’s death (Mercado v. Vitriolo, A.C. No. 5108, May 26, 2005).

A. Brando & Luzon Law Office had a retainer agreement with Gregory, a businessman with shady connections. Gregory was recently charged in the RTC in Manila with money laundering in relation to an illegal drugs syndicate using Cable Co., his holding company, as its money-laundering conduit. The members of the Brando & Luzon Law Office assigned to handle Gregory's account, including yourself, were implicated in the money laundering case for their role in the incorporation of Cable Co. and in the active management of its business affairs.

Q: A, who is charged in Court with estafa for misappropriating funds entrusted to him by B, consulted Atty. C about the case with the intention of engaging his services as defense counsel. Because A could not afford to pay the fee that Atty. C was charging him, A engaged the services of another counsel, Atty. D. At the trial of the case for estafa against A the prosecutor announced in open court that his next witness was Atty. C. whom he was calling to the witness stand.

In a bid to fortify the case against

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QUAMTO (1987-2017) Counsel for A. Atty. D, vigorously opposed the prosecutor's move on the ground that Atty. C may not be called as a witness for the prosecution as he might disclose a would be client's confidence and secret. Asked by the presiding Judge what would be the nature of Atty. C's testimony, the prosecutor answered it has something to do with how A obtained from B the funds that the latter received from the former but failed to account for. Thereupon, Atty. A vigorously opposed the prosecutor's motion.

victim in cold blood. Vicente also said that when he takes the witness stand, he will deny having done so. Is Atty. Romualdo obliged, under his oath as lawyer, to inform the judge (a) that his client is guilty? (2009 Bar) A: Atty. Romualdo cannot reveal to the judge that Vicente is guilty. He is bound to keep what Vicente told him in confidence, because that is an admission of a crime already committed. Disclosure, when allowed

If you were the Judge, how would you rule on the matter? (1999 Bar)

Q: When Atty. Romualdo interviewed his client, Vicente, who is accused of murder, the latter confessed that he killed the victim in cold blood. Vicente also said that when he takes the witness stand, he will deny having done so. Is Atty. Romualdo obliged, under his oath as lawyer, to inform the judge that (b) his client will commit perjury on the witness stand? Explain. (2009 Bar)

A: If I were the judge, I will not allow Atty. C to take the witness stand. When A consulted Atty. C about his case, a lawyer-client relationship was established between them. It does not matter that A did not eventually engage his services because of his fees; such relationship has already been created (Hilado v. David, 84 Phil 569). A lawyer shall be bound by the rule on privileged communication in respect to matters disclosed to him by a prospective client (Rule 15.02 Code of Professional Responsibility). The rule on privileged communication provides that an attorney cannot, without the consent of his client, be examined as to any communication made by the client to him (Sec. 21 [b], Rule 130, Rules of Court). The prosecutor has announced that Atty. C will be asked about how A obtained from B the funds that he failed to account for. Atty. C's knowledge of such matter could have come only from A.

A: Atty. Romualdo can reveal to the judge that Vicente will commit perjury on the witness stand. This is already a revelation of a crime still to be committed, and that lies outside the mantle of privileged communication. Q: Atty. Serafin Roto is the Corporate Secretary of a construction corporation that has secured a multi-million infrastructure project from the government. In the course of his duties as corporate secretary, he learned from the company president that the corporation had resorted to bribery to secure the project and had falsified records to cut implementing costs after the award of the project.

COMMENT:There seems to be a typographical error in the last sentence which refers to Atty. A. Perhaps, the examiner intended to refer to simply A or to his counsel Atty.D. It is recommended that the use by the candidate of Atty. A should not detract from the appreciation of his answer.

The government filed a civil action to annul the infrastructure contract and has subpoenaed Atty. Roto to testify against the company president and the corporation regarding the bribery. Atty. Roto moved to quash the subpoena, asserting that lawyerclient privilege prevents him from testifying against the president and the corporation.

Q: Christine was appointed counsel de oficio for Zuma, who was accused of raping his own daughter. Zuma pleaded not guilty but thereafter privately admitted to Christine that he did commit the crime charged.

Resolve the motion to quash. (2013 Bar)

Can Christine disclose the admission of Zuma to the court? Why or why not? (2008 Bar) A: Christine cannot disclose the admission of Zuma to the Court. If she does so, she will violate her obligation to preserve confidences or secrets of her client (Canon 21, Rule 21.02, CPR). The privileged communication between lawyer and client may be used as a shield to defend crimes already committed.

A: Motion denied. The motion should be denied because Atty. Roto did not learn of the bribery and falsification in connection with a lawyerclient relation. Being a corporate secretary does not create a lawyer-client relation because membership to the Bar is not a requirement to perform the functions of a corporate secretary. Consequently, Atty. Roto does not owe any obligation of confidentiality to the corporation.

Q: When Atty. Romualdo interviewed his client, Vicente, who is accused of murder, the latter confessed that he killed the

Atty. Roto may be compelled to testify. As an officer of the court, a “lawyer shall exert every effort and consider it his duty to assist in the

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Legal and Judicial Ethics

speedy and efficient administration of justice” (Code of Professional Responsibility, Canon 12). Furthermore, “a lawyer owes candor, fairness and good faith to the court” (Ibid., Canon 10).

communication relating thereto. There is privileged communication only as to crimes already committed before its communication to the lawyer.

ALTERNATIVE ANSWER:

Q: In a prosecution for murder against a ranking army officer, the latter engaged the services of Atty. Carlos Malilin, a wellknown trial lawyer, to whom the officer in one of their conferences disclosed a plan to “eliminate” or “salvage”— i.e., kill or otherwise cause to disappear— the only witness, a fellow military officer, through a contrived traffic or highway accident.

Motion Granted.It is true that being a corporate secretary does not necessarily constitute a lawyer-client relationship. However, Atty. Roto may be considered in the practice of law if part of his duties as a corporate secretary is to give legal advice to or prepares legal documents for the corporation. Thus a lawyer-client relationship may have been constituted between Atty. Roto and the corporation. Consequently, it is his duty as an attorney “to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client” (Rules of Court, Rule 138, Sec. 20, par. E, paraphrasing and arrangement supplied).

a.

What are the legal and moral obligations of Atty. Carlos Malillin to his client and to the authorities, under the given circumstances? b. Should the planned “accident” take place and the only witness for the prosecution be killed as a result, is Atty. Carlos Malillin under any obligation to disclose to the authorities the plan that his client had mentioned to him as above mentioned? Reasons. (1988, 1987 Bar)

Atty. Roto learned from the company president of the bribery and falsification, while Atty. Roto was in the course of his performance of his duties as corporate secretary. Thus, he could not be examined on that matter without the consent of his client. [Ibid., Rule 130, Sec. 24(b)].

A:

Q: A mayor charged with Homicide engaged your services as his lawyer. Since there is only one witness to the incident, the mayor disclosed to you his plan to kill the lone witness through a contrived vehicular accident.

a.

b.

a.

What are the moral and legal obligations of an attorney to the mayor and to the authorities? b. Should the killing push through and are you certain that the mayor is the one responsible, are you under obligation to disclose to the authorities what was confided to you? Is this not a privileged communication between client and attorney? (1998 Bar)

Withdrawal of services Q: Give three instances when a lawyer is allowed to withdraw his/her services. (2015, 1997, 1988 Bar)

A: a.

b.

Attorney Malillin has the moral and legal obligation to advise the army officer not to execute his plan. If the accused army officer does not abide by his advise, Atty. Malillin should withdraw from the case. Atty. Malillin has the obligation to testify in said case if he is called upon by the Court to do so. The obligation of the lawyer to keep the secrets of his client obtained in the course of his employment covers only lawful purposes.

A: (Any three of the following:) It is the duty of an attorney to divulge the communication of his client as to his announced intention to commit a crime to the proper authorities to prevent the act or to protect the person against whom it is threatened. Public policy and the lawyer's duty to counsel obedience to the law forbid that an attorney should assist in the commission of a crime or permit the relation of attorney and client to conceal a wrongdoing. He owes it to himself and to the public to use his best efforts to restrain his client from doing any unlawful act and if, notwithstanding his advise, his client proceeds to execute the illegal deed, he may disclose it or be examined as to any

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1. 2. 3. 4. 5. 6.

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When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling; When the client insists that the lawyer pursue conduct violative of these canons and rules; When his inability to work with co-counsel will not promote the best interest of the client; When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively; When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement; When the lawyer is elected or appointed to apublic office.

QUAMTO (1987-2017) 7.

Other similar cases.

injured person or his counsel, so that they may take the appropriate steps (Canons of Professional Ethics, Canon 41).

Q: B hired Atty. Z to file a replevin case against C for an agreed acceptance fee of P30,000.00 which was evidenced by a written contract. After the complaint was filed by Atty. Z, B terminated his services and hired a new lawyer for the same amount of attorney’s fees. How much attorney’s fees is Atty. Z entitled? (2014 Bar)

Finally, as part of my duty to do no falsehood, nor consent to the doing of any in court (Code of Professional Responsibility, Canon 10, Rule 10.01, and the Attorney’s oath). I shall file a manifestation with the court attaching thereto the notice of termination as Limot’s counsel. Q: On the eve of the initial hearing for the reception of evidence for the defense, the defendant and his counsel had a conference where the client directed the lawyer to present as principal defense witnesses two (2) persons whose testimonies were personally known to the lawyer to have been perjured. The lawyer informed his client that he refused to go along with the unwarranted course of action proposed by the defendant. But the client insisted on his directive, or else he would not pay the agreed attorney’s fees. When the case was called for hearing the next morning, the lawyer forthwith moved in open court that he be relieved as counsel for the defendant. Both the defendant and the plaintiffs counsel objected to the motion.

A: Atty. Z is entitled to the entire amount of the attorney’s fees agreed upon because his services were terminated by the client without just cause (Sec. 26, Rule 138, Rules of Court). Q: Atty. Bravo represents Carlos Negar (an insurance agent for Dormir Insurance Co.) in a suit filed by insurance claimant Andy Limot who also sued Dormir Insurance. The insurance policy requires the insured/claimant to give a written notice to the insurance company or its agent within 60 days from the occurrence of the loss. Limot testified during the trial that he had mailed the notice of the loss to the insurance agent, but admitted that he lost the registry receipt so that he did not have any documentary evidence of the fact of mailing and of the timeliness of the mailed notice. Dormir Insurance denied liability, contending that the timely notice had not been given either to the company or its agent. Atty. Bravo’s client, agent Negar, testified and confirmed that he never received any notice.

Under the given facts, is the defense lawyer legally justified in seeking withdrawal from the case? Why or why not? Reason briefly. (2004 Bar) A: Yes, he is justified. Under Rule 22.01 of the Code of Professional Responsibility, a lawyer may withdraw his services "if the client insists that the lawyer pursue conduct violative of these canons and rules". The insistence of the client that the lawyer present witnesses whom he personally knows to have been perjured, will expose him to criminal and civil liability and violate his duty of candor, fairness and good faith to the court.

A few days after Negar testified, he admitted to Atty, Bravo that he had lied when he denied receipt of Limot’s notice, he did receive the notice by mail but immediately shredded it to defeat Limot’s claim. If you were Atty. Bravo, what would you do in light of your client’s disclosure that he perjured himself when he testified? (2013 Bar)

Q: Atty. X filed a notice of withdrawal of appearance as counsel for the accused Y after the prosecution rested its case. The reason for the withdrawal of Atty. X was the failure of accused Y to affix his conformity to the demand of Atty. X for increase in attorney’s fees. Is the ground for withdrawal justified? Explain. (2000 Bar)

A: If I were Atty. Bravo I shall promptly call upon Carlo Negar, my client, to rectify his perjured testimony by recanting the same before the court. Should he refuse or fail to do so I shall then terminate my relationship with him (Code of Professional Responsibility, Canon 19, Rule 19.02) stating that with his having committed perjury he pursued an illegal conduct in connection with the case (Ibid., Canon 22, Rule 22.01).

A: The ground for the withdrawal is not justified. Rule 22.01 (e) of the Code of Professional responsibility provides that a lawyer may withdraw his services when the client deliberately fails to pay the fees for his services or fails to comply with the retainer agreement. In this case, the client has not failed to pay the lawyer’s fees or to comply with the retainer agreement. He has only refused to agree with the lawyer’s demand for an increase

Since my client Limot refuses to forego the advantage thus unjustly gained as a result of his perjury, I should promptly inform the

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in his fees. It is his right to refuse; that is part of his freedom of contract.

NATURE AND CHARACTERISTICS OF DISCIPLINARY ACTIONS AGAINST LAWYERS

Q:Atty. Jessa was the counsel for Mr. Nolan, a cantankerous millionaire, in the latter's personal case. Soon after the case was submitted for decision, Mr. Nolan withdrew the files from Atty. Jessa and informed her that he was engaging another lawyer. On that same day, a copy of the decision in the case was received by Atty. Jessa but she did not do anything anymore with the decision. She did not also file a withdrawal of her appearance. Mr. Nolan's new counsel did not file any notice of his appearance. By the time Mr. Nolan found out about the adverse decision, his period to appeal had lapsed. Was the service of the decision on Atty. Jessa still effective? Explain your answer. (2017, 2012 bar)

Sui generis Q: Is the defense of Atty. R in a disbarment complaint for immorality filed by his paramour P that P is in pari delicto material or a ground for exoneration? Explain. (2010 Bar) A: The defense of in pari delicto is immaterial in an administrative case which is sui generis. The administrative case is about the lawyer’s conduct, not the woman’s (Mortel v. Aspiras, 100 Phil. 586 [1956]; Po Cham v. Pizarro, 467 SCRA 1 [2005]; Marjorie F. Samaniego v. Atty. Andrew V. Ferrer, 555 SCRA 1 [2008]). Q: Arabella filed a complaint for disbarment against her estranged husband Atty. P on the ground of immorality and use of illegal drugs.

A: Yes. The service of decision to Atty. Jessa is still effective. Atty. Jessa is still considered the counsel of record until his withdrawal of appearance has been actually filed and granted.

After Arabella presented evidence and rested her case before the Investigating Commissioner of the IBP Committee on Bar Discipline, she filed an Affidavit of Desistance and motion to dismiss the complaint, she and her husband having reconciled for the sake of their children.

Q: State the rule on (a) the right of the client to dismiss his lawyer and (b) the prerogative of a lawyer to withdraw as counsel. (1998,1994, 1989 Bar) A: a.

b.

You are the Investigating Commissioner of the IBP. Bearing in mind that the family is a social institution which the State is dutybound to preserve, what will be your action on Arabella’s motion to dismiss the complaint? (2010 Bar)

A client has the right to dismiss his lawyer at any time, with or without just cause. The existence or non-existence of just cause is material only for determining the right of the lawyer to compensation for services rendered. The client's right to terminate the lawyer's services springs from the strictly personal and highly confidential nature of the relationship between the lawyer and the client. Once the client loses confidence in his lawyer, he has the right to dismiss him. On the other hand, the lawyer does not have an unqualified right to withdraw as counsel. As an officer of the court, he may not withdraw or be permitted to withdraw as counsel if such withdrawal will work injustice to a client or frustrate the ends of justice. A lawyer may withdraw at any time with his client's written consent. Without such consent, he may withdraw his services only for good cause and upon notice appropriate in the circumstances (Canon 22, Code of Professional Responsibility).

A: I would still deny the motion to dismiss. The general rule is that “no investigation shall be interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of the charges or failure of the complainant to prosecute the same unless the Supreme Court motu proprio or upon recommendation of the IBP Board of Governors determines that there is no compelling reason to continue with the proceedings. An administrative investigation of a lawyer is sui generis, neither a civil nor criminal proceeding. An affidavit of desistance has no place in it. Q: A proceeding for disbarment is considered sui generis, explain briefly, giving at least five (5) reasons in support of your answer. (2002 Bar) A: A disbarment proceeding is sui generis or a class by itself, because of the following reasons:

SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS (RULE 139-B, RULES OF COURT)

a. b.

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It Is neither a civil nor a criminal proceeding; Double jeopardy cannot be availed of as a defense;

QUAMTO (1987-2017) c. d. e. f. g.

It can be initiated motu proprio by the Supreme Court or by the IBP; It can proceed regardless of interest or lack of interest of the complainant; It is imprescriptible; It is confidential; It is in itself due process.

Q: What are the grounds for disbarment or suspension from office of an attorney? (2015 Bar) A: Under Sec. 27, Rule 138, the grounds for suspension or disbarment of a lawyer are “any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience appearing as an attorney for a party or to a cause without authority to do so.” The practice of soliciting cases for the purposes of gain, either personally or through paid agents or brokers constitutes malpractice.

Q: Alleging that Atty. Malibu seduced her when she was only sixteen (16) years old, which resulted in her pregnancy and the birth of a baby girl, Miss Magayon filed a complaint for his disbarment seven years after the alleged seduction was committed. Atty. Malibu contended that, considering the period of delay, the complaint filed against him can no longer be entertained much less prosecuted because the alleged offense has already prescribed.

Q: Atty. Forma is a member of the Philippine Bar. He went to New York City, took the New York State Bar, and passed the same. He then practiced in New York City. One of his American clients filed a case for disbarment against him for pocketing the money which was entrusted to him as payment for the filing fee and other incidental expenses of his damage suit. Atty. Forma was later disbarred for dishonesty. Disheartened, Atty. Forma came back to the Philippines and practiced as a lawyer.

Is Atty. Malibu’s contention tenable or not? Reason briefly. (2017, 2004 Bar) A: No. Atty. Malibu’s contention is not tenable. The ordinary statute of limitations has no application to disbarment proceedings (Calo v. Degamo, A.C. No. 516, June 27, 1967). Disciplinary proceedings against lawyers are sui generis. They are neither civil nor criminal proceedings. Its purpose is not to punish the individual lawyer but to safeguard the administration of justice by protecting the court and the public from the misconduct of lawyers and to remove from the profession of law persons whose disregard of their oath of office proves them unfit to continue discharging the trust reposed in them as members of the bar. Unlike ordinary proceedings, it is not subject to the defense of prescription.

Will his disbarment in New York be used against him for purposes of disbarment proceedings here in the Philippines? (2014, 2006, 2002 Bar) A: Atty. Forma may be disbarred in the Philippines if the ground for his disbarment in New York is also a ground for disbarment in this country. But he is still entitled to due process of law, and the foreign court’s judgment against him only constitutes prima facie evidence of unethical conduct as a lawyer. He is entitled to be given an opportunity to defend himself in an investigation to be conducted in accordance with Rule 139 of the Revised Rules of Court (In Re: Suspension from the Practice of Law in the Territory of Guam of Atty. Leon Maquera, B.M. 793, July 30, 2004; Velez v. De Vera, A.C. No. 6697, July 25, 2006).

Q: C filed a verified administrative complaint against Atty. D. In the course of the investigation, C presented an affidavit of desistance which she identified on the witness stand. What course of action should the investigator take? Explain. (2000 Bar) A: The investigator should continue with the investigation. A disbarment proceeding is sui generis, neither a civil nor criminal action. As such, a desistance by the complainant is unimportant. The case may proceed regardless of interest or lack of interest of the complainant (Rayos-Ombac v. Rayos, 285 SCRA 93 [1998]). If the evidence on record warrants, the respondent may be suspended or disbarred regardless of the desistance of the complainant. Of course, if the complainant refuses to testify and the charges cannot then be substantiated, the court will have no alternative but to dismiss the case.

Q: Cliff and Greta were law school sweethearts. Cliff became a lawyer, but Greta dropped out. One day, Cliff asked Greta to sign a marriage contract. The following day, Cliff showed Greta the document already signed by an alleged solemnizing officer and two witnesses. Cliff then told Greta that they were already married and Greta consented to go on a honeymoon. Thereafter, the couple cohabited and begot a child. Two years later, Cliff left Greta and married a Venezuelan beauty. Incensed, Greta filed a disbarment complaint against Cliff. Will the case prosper? Explain. (2009 Bar)

Grounds

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Legal and Judicial Ethics

A: The disbarment case will prosper. In the case of Cabrera v. Agustin (106 Phil. 256 [1959]), a lawyer who deceived a woman to believe that they were already married after they had signed an application for a marriage license, and afterwards took advantage of her belief to satisfy his lust, until she bore him a child, was considered by the Supreme Court to be lacking in integrity and good moral character to remain a member of the bar.

A: The document executed by the spouses is immoral and contrary to law. The lawyer who drafted and notarized all said documents committed malpractice and can be disbarred or suspended. Although the principal duty of the notary public is to ascertain the identity of the parties and the voluntariness of the declaration, it is nevertheless incumbent upon him to guard against any illegal or immoral agreement.

Q: Atty. Walasunto has been a member of the Philippine Bar for twenty (20) years but has never plied his profession as a lawyer. His sole means of livelihood is selling and buying real estate. In one of his transactions as a real estate broker, he issued a bouncing check. He was criminally prosecuted and subsequently convicted for violating B.P. Big. 22. In the disbarment proceedings filed against him, Atty. Walasunto contended that his conviction for violation of B.P. Big. 22 was not a valid ground for disciplinary action against a member of the bar. He further argued that his act in issuing the check was done in relation to his calling as a real estate broker and not in relation to the exercise of the profession of a lawyer.

Proceedings Q: A disbarment complaint against a lawyer was referred by the Supreme Court to a Judge of the Regional Trial Court for investigation, report and recommendation. On the date set for the hearing of the complaint, the Judge had the case called for trial in open court and proceeded to receive evidence for the complainant. What would you have done if you were the counsel for the respondent-lawyer? Why? Reason briefly. (2004 Bar) A: I would object to the holding of a trial in public. Disciplinary proceedings against an attorney are confidential in nature until its termination. The professional success of a lawyer depends almost entirely on his good reputation. If that is tarnished, it is difficult to restore the same (Ibanez v. Vina, 107 SCRA 607 [1981]). To avoid the unnecessary ruin of a lawyer’s name, disbarment proceedings are directed to be confidential until their final determination (Sec. 18, Rule 139-B, Rules of Court).

Are the contentions of Atty. Walasunto meritorious or not? Reason. (2004, 1992 Bar) A: No. His contentions are not meritorious. In the first place, a ground for disbarment is conviction of a crime involving moral turpitude (Sec. 27, Rule 138, Rules of Court), and the violation of B.P. 22 is considered to be a crime involving moral turpitude (People v. Tuanda, 181 SCRA 692 [1990]). In the second place, Rule 7.03 of the Code of Professional Responsibility provides that “a lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.” Additionally, Rule 1.01 of the same Code provides that “a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct."

Q: Atty. D was required by Judge H of the Regional Trial Court (RTC) of Manila to show cause why he should not be punished for contempt of court for shouting invectives at the opposing counsel and harassing his witness. Assuming that there was sufficient cause or ground, may Judge H suspend Atty. D from the practice of law? If Judge H finds that the actuations of Atty. D are grossly unethical and unbecoming of a member of the bar, may Judge H disbar Atty. D instead?

Q: The agreement between the estranged husband and wife provided for, among others, the liquidation of the conjugal partnership of gains, custody of the children, and support for the children. In the same agreement, the couple waived the right to prosecute each other for bigamy, adultery, concubinage and whatever acts of infidelity. There was also a condonation provision. The agreement was prepared and notarized by a lawyer who was the best man at the wedding. What are the liabilities, if any, of this lawyer? Explain your answer. (1989 Bar)

UST BAR OPERATIONS

Explain your answer. (2014 Bar) A: Under Section 28, Rule 138 of the Rules of Court, a Regional Trial Court may suspend a lawyer from the practice of law for any of the causes provided in Section 27, until further action of the Supreme Court. But it may not disbar him, for only the Supreme Court can disbar a lawyer pursuant to its constitutional power to admit persons to the practice of law. Q: Atty. Hyde, a bachelor, practices law in the Philippines. On long weekend, he dates beautiful actresses in Hong Kong. Kristine, a

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QUAMTO (1987-2017) neighbor in the Philippines, filed with the Supreme Court an administrative complaint against the lawyer because of sex videos uploaded through the internet showing Atty. Hyde’s sordid dalliance with the actresses in Hong Kong.

tasked to investigate the case reviewed all the pleadings of the parties and their respective witnesses. This implies that Atty. A was given an opportunity to present his side. Due process has been satisfied. This is especially true if the principle of res ipsa loquitur is applicable. (However, it may be noted that the IBP Board of Governors is not authorized to impose the penalty of suspension).

In his answer, Atty. Hyde (1) questions the legal personality and interest of Kristine to institute the complaint and (2) insists that he is a bachelor and the sex videos relate to his private life which is outside public scrutiny and have nothing to do with his law practice.

Q: A engaged the services of Atty. B to defend him in a case for collection of sum of money that was brought against him in the Municipal Trial Court by D. Despite notice of the scheduled dates of hearing, Atty. B failed to appear much less to inform A about it. The case was decided against A. It was only when the adverse judgment was being executed against him that A learned he had lost the case. When he went to see counsel, Atty. B put up the excuse that he was busy attending to his cases which were more important than A's.

Rule on the validity of Atty. Hyde’s defenses. (2009 Bar) A: a.

b.

The legal personality and interest of Kristine to initiate the complaint for disbarment is immaterial. A disbarment proceedings is sue generis, neither a civil nor a criminal proceeding. Its sole purpose is to determine whether or not a lawyer is still deserving to be a member of the bar. In a real sense, Kristine is not a plaintiff; hence, interest on her part is not required.

Before whom can A seek redress against Atty. B who apparently was negligent in attending his case? (1999 Bar) A: He may file a verified complaint against Atty. B, asking that he be administratively disciplined, with either the Supreme Court, the Board of Governors of the Integrated Bar of the Philippines (IBP), or the EBP Chapter to which Atty. B belongs (Sec. 1, Rule 139-B).

Atty. Hyde’s second defense is untenable. His duty not to engage in unlawful, dishonest, immoral and deceitful conduct under Rule 1.01 of the CPR, as well as his duty not to engage in scandalous conduct to the discredit of the legal profession under Rule 7.03, is applicable to his private as well as to his professional life.

ADDITIONAL ANSWER: He may also file a complaint against Atty. B before a Regional Trial Court or Municipal Trial Court, depending on the amount involved, for damages he may have sustained due to the latter's negligence. Q: When Atty. Aldrin received copy of the decision of the Court of Appeals, he filed a motion for reconsideration using intemperate and disrespectful language with a subtle threat that “knowingly rendering an unjust judgment is punishable under the Revised Penal Code."

Q: Y hired Attorney X to represent him in a collection case he filed against Z. The parties later on agreed to settle the case and Z turned over to Attorney X the amount of P25,000.00 as partial settlement of his obligation. Attorney X kept the money. Y, upon learning of Attorney X’s action, filed a disbarment case against the latter before the Supreme Court, which in turn, referred the case to the Integrated Bar of the Philippines for investigation, report and recommendation.

The Court of Appeals ordered him to explain why he should not be cited in contempt of court. Instead of complying, he submitted to the Court of Appeals his Petition to Retire from the practice of law which he immediately filed with the Supreme Court after receiving the citation for contempt. May he be allowed to retire from the practice of law? (1998 Bar)

The IBP Commissioner tasked to investigate the case reviewed all the pleadings submitted by Y and Attorney X and their respective witnesses, and promptly made a report recommending that Attorney X be suspended for six months. The IBP Board of Governors adopted the recommendation of the Investigating Commissioner. Attorney X assailed his suspension on the ground of an impingement on his right to due process. Is Attorney X's contention sustainable? Explain. (2003 Bar)

A: No.A practicing lawyer and officer of the court facing contempt proceedings cannot just be allowed to voluntarily retire from the practice of law which would negate the inherent power of the court to punish him for contempt (Montecillo v. Gica, 60 SCRA 234).

A: There is no impingement on Attorney X’s right to due process. The IBP Commissioner

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Q: Ben filed proceedings for disbarment against his lawyer, Atty. Co, following the latter’s conviction for estafa for misappropriating funds belonging to his client (Ben). While the proceedings for disbarment was pending, the President granted absolute pardon in favor of Atty. Co. Atty. Co. then, moved for the dismissal of the disbarment case.

P1,000,00. He did not account for the balance. Suppose that the lawyer should be charged, how and where should the complaint be filed? Explain your answer. (1990 Bar) A: The client may file a verified complaint for disbarment against his lawyer. His verified complaint shall state clearly and concisely the facts complained of and shall be supported by affidavits of person or persons having personal knowledge of the facts therein alleged and/or by such documents as may substantiate said facts. The client may file the complaint directly with the Supreme Court, in which case at least 18 copies thereof shall be filed, and the Supreme Court may refer the complaint to the IBP Board of Governors for appropriate action, such as assigning the complaint to an investigator, or to the Solicitor General or court officer or judge for investigation when the interest of justice requires. The client may, however, file his complaint, in six copies, with the IBP Board of Governors, which will then assign the case to an investigator for investigation, or with the Secretary of a local chapter of the IBP, which will in turn transmit the same to the IBP Board of Governors for assignment to an investigator (Rule 139-B of the Rules of Court).

Should the motion be granted? (1998 Bar) A: An absolute pardon by the President is one that operates to wipe out the conviction as well as the offense itself. The grant thereof to a lawyer is a bar to a proceeding for disbarment against him, if such proceeding is based solely on the fact of such conviction (In Re: Parcasion, 69 SCRA 336). But where the proceeding to disbar is founded on the professional misconduct involved in the transaction which culminated in his conviction, the effect of the pardon is only to relieve him of the penal consequences of his act and does not operate as a bar to the disbarment proceeding, inasmuch as the criminal acts may nevertheless constitute proof that the attorney does not possess good moral character (In Re: Lontoc, 43 Phil. 293). Q: A verified complaint for disbarment was filed against Atty. Cruz who was accused of misappropriating funds belonging to the complainant. The matter was referred to the IBP which forthwith conducted an investigation through its local chapter. During the pendency of the investigation, the complainant filed an Affidavit of Desistance claiming that Atty. Cruz had already reimbursed him for the funds which he had accused him of unlawfully spending for his own use. Atty. Cruz moved for the dismissal of the complaint.

Q: How may a proceeding for disbarment, suspension or discipline of attorneys be instituted? (1989 Bar) A: A proceeding for disbarment, or suspension or discipline of attorneys may be taken by the Supreme Court, the Court of Appeals or the Regional Trial Court, on its own motion, or upon complaint under oath of another in writing. The Integrated Bar of the Philippines may investigate the matter and recommend to the Supreme Court the disbarment and suspension from the practice of law of the erring lawyer.

As the hearing officer, how will you act on the motion of Atty. Cruz? (1994 Bar) A: The desistance of a complaint in a disbarment proceedings or his withdrawal of the charges against a lawyer does not deprive the court of the authority to proceed to determine the matter. Nor does it necessary result in the dismissal of the complaint, except when, as a consequence of withdrawal or desistance, no evidence is adduced to prove the charges. Since a disbarment proceeding is neither a civil nor a criminal action but one presented solely for public interest, the fact that the complainant and the respondent have considered the case closed, is unimportant.

DISCIPLINE OF FILIPINO LAWYERS PRACTICING ABROAD Q: Atty. Perez was admitted as a member of the New York Bar. While in Manhattan, he was convicted of estafa and was disbarred. Does his disbarment in New York a ground for his automatic disbarment in the Philippines? (2006 Bar) A: The disbarment or suspension of a member of the Philippine Bar by a competent court or other disciplinary agency in a foreign jurisdiction where he has also been admitted as an attorney is a ground for his disbarment or suspension if the basis of such action includes any of the acts hereinabove enumerated.

As hearing officer, I will deny the motion of Atty. Cruz and continue the hearings. Q: A lawyer charged his client P 10,000.00 for filing fees pertaining to the complaint he filed in court. He actually spent only

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QUAMTO (1987-2017) The judgment, resolution or order of the foreign court or disciplinary agency shall be primafacie evidence of the ground for disbarment or suspension (pars. 2 & 3, Section 27, Rule 138, as amended by Supreme Court Resolution, dated February 13,1992).

compassion on behalf of Atty. Juan Santos. The Supreme Court had earlier found Atty. Santos guilty of grave professional misconduct and imposed upon him “an indefinite suspension, leaving it to him to prove at some future and opportune time that he shall have once again regained the fitness to be allowed to resume the practice of law as an officer of the court."

Thus, the disbarment of Atty. Perez in New York for estafa is a ground for his disbarment in the Philippines. However, such disbarment in the Philippines is not automatic. Atty. Perez is still entitled to due notice and hearing (In Re Suspension from the Practice of Law in the Territory of Guam of Atty. Leon G. Maquera, 435 SCRA 417 (2004]).

Is the plea of the Faculty for Atty. Juan Santos well taken? Explain. (1993 Bar) A: The plea of the Faculty of Law of the University of the Philippines asking compassion on behalf of Atty. Juan Santos is not well taken.

Q: Atty. LA is a member of the Philippine Bar and the California Bar in the United States. For willful disobedience of a lawful order of a Superior Court in Los Angeles, Atty. LA was suspended from the practice of law in California for one (1) year.

In order that a lawyer who was disbarred can be reinstated, he must show with convincing proof that he has good moral character acquired through positive efforts, honorable dealings and moral reformation as to be fit to practice law again. Mere allegation of compassion for a lawyer is not sufficient. In one decision of the Supreme Court, in order that a disbarred lawyer can be reinstated, he must prove his good moral character as if he is applying for admission to the bar.

May his suspension abroad be considered a ground for disciplinary action against Atty. LA in the Philippines? Why? (2002 Bar) A: The suspension of Atty. LA from the practice of law abroad may be considered as a ground for disciplinary action here if such suspension was based on one of the grounds for disbarment in the Philippines or shows a loss of his good moral character, a qualification he has to maintain in order to remain a member of the Philippine Bar.

LAWYERS WHO HAVE BEEN REPATRIATED Q: Atty. Repatriar, a law school classmate, approached you on your 25th Class Reunion, with questions on how he can resume the practice of law in the Philippines. He left the country in 1977 after two (2) years of initial law practice, and migrated to the United States where he was admitted to the practice of law in the State of New York. He asks that you give him a formal legal opinion on his query.

READMISSION TO THE BAR LAWYERS WHO HAVE BEEN DISBARRED Q: Atty. Queliza was convicted of qualified seduction. He was subsequently disbarred at the initiative of the IBP. Before he could complete the service of his sentence, he was given an absolute pardon by the President. He thereupon petitioned the Supreme Court for reinstatement to the practice oflaw as a legal and logical consequence of the absolute pardon.

Outline briefly the steps and the supporting legal reasons you would state in your legal opinion on what Atty. Repatriar should do to resume his Philippine practice. (2013 Bar) A: Atty. Repatriar must prepare a sworn petition to reacquire the privilege to practice law in the Philippines. He should manifest in his petition his desire to resume his law practice in the Philippines, and he is not disqualified to practice law. The “right to resume the practice of law” is not automatic. R.A. No. 9225 provides that a person who intends to practice his profession in the Philippines must apply with the proper authority for a license or permit to engage in such practice. It cannot be overstressed that the practice of law is a privilege burdened with conditions. It is so delicately affected with public interest that it is both the power and duty of the State (through this Court) to control and regulate it in order to protect and promote the public welfare.

Is he entitled to reinstatement? (1994 Bar) A:An absolute pardon granted to a lawyer who has been previously disbarred for conviction of a crime involving moral turpitude does not automatically entitle him to reinstatement. The matter of his reinstatement is still subject to the discretion of the Supreme Court. He should still show by evidence aside from the absolute pardon that he is now a person of good moral character, a fit and proper person to practice law (In Re Rovero, 101 SCRA 797). Q: The Faculty of the College of Law of the University of the Philippines pleaded for

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Legal and Judicial Ethics

Adherence to rigid standards of mental fitness, maintenance of the highest degree of morality, faithful observance of the legal profession, compliance with the mandatory continuing legal education requirement and payment of membership fees to the Integrated Bar of the Philippines (IBP) are the conditions required for membership in good standing in the bar and for enjoying the privilege to practice of law. Any breach by a lawyer of any of these conditions makes him unworthy of the trust and confidence which the courts and clients repose in him for the continued exercise of his professional privilege” (In Re: Petition to reacquire the privilege to practice law in the Philippines, Epifanio B. Muneses, B.M. No. 2112, July 24, 2012).

2. 3. 4. 5. 6.

Q: After passing the Philippine Bar in 1986, Richards practiced law until 1996 when he migrated to Australia where he subsequently became an Australian citizen in 2000. As he kept abreast of legal developments, petitioner learned about the Citizenship Retention and Re-Acquisition Act of 2003 (Republic Act No. 9225), pursuant to which he reacquired his Philippine citizenship in 2006. He took his oath of allegiance as a Filipino citizen at the Philippine Embassy in Canberra, Australia. Jaded by the laid back life in the outback, he returned to the Philippines in December 2008. After the holidays, he established his own law office and resumed his practice of law.

He should file the petition with the Supreme Court, through the Bar Confidant accompanied by the original or certified copies of the following documents: 1.

Showing that he is still a Filipino citizen. ”The Court reiterates that Filipino citizenship is a requirement for admission to the bar and is, in fact, a continuing requirement for the practice of law” (In Re: Petition to Re-acquire the Privilege to Practice Law in the Philippines, B.M. No. 2112, supra). Having retained Philippine citizenship could be evidenced by the Philippine passport, the U.S. Green card showing Philippine citizenship and U.S. residency or other authentic documents which the Supreme Court may require.

Months later, a concerned woman who had secured copies of Atty. Richards’ naturalization papers with consular authentication, filed with the Supreme Court an anonymous complaint against him for illegal practice of law.

On the other hand, if Atty. Repatriar has lost his Philippine citizenship, he must submit the following: a. b. c. d.

Is respondent entitled to resume the practice of Law? Explain. (2010 Bar)

Petition for Re-Acquisition of Philippine Citizenship; Order (for Re-Acquisition of Philippine citizenship); Oath of Allegiance to the Republic of the Philippines; Identification Certificate (IC) issued by the Bureau of Immigration.

A: Yes, as long as he observes the procedure laid down in Petition for Leave to Resume Practice of Law of Benjamin M. Dacanay (B.M. No. 1678, December 17, 2007, 540 SCRA 424), to wit: a.

The loss of Filipino citizenship means termination of Atty. Repatriar’s membership in the bar; ipso jure the privilege to engage in the practice of law. Under R.A. No. 9225, naturalborn citizens who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are deemed to have re-acquired their Philippine citizenship upon taking the oath of allegiance to the Republic. Thus, a Filipino lawyer who becomes a citizen of another country and later reacquires his Philippine citizenship under R.A. No. 9225, remains to be a member of the Philippine Bar (B.M. No. 2112, In re: Petition to re-acquire the privilege to practice law in the Philippines, supra).

UST BAR OPERATIONS

Certification from the IBP indicating updated payments of annual membership dues; Proof of payment of professional tax; and Certificate of compliance issued by the MCLE Office. (Ibid.) A certificate of good moral character attested to by at least three (3) members of the bar; and A certification from the State Bar of New York that Atty. Repatriar does not have any previous or pending disciplinary action filed against him before that body.

b. c. d.

Updating and payment in full of the annual membership dues in the IBP; Payment of the professional tax; Completion of at least 36 credit hours of mandatory continuing legal education; and, Pre-taking of the lawyer’s oath.

NOTARIAL PRACTICE (A.M. NO. 02-8-13-SC, AS AMENDED) POWERS AND LIMITATIONS Q: Enumerate the instances when a Notary Public may authenticate documents without

44

QUAMTO (1987-2017) requiring the physical presence of the signatories. (2010 Bar)

Q: Comment on the propriety of the acts of the municipal judge who prepared and notarized the following documents:

A: 1.

2.

3.

a.

a deed of absolute sale executed by two of his friends; b. an extrajudicial settlement of estate of his cousins; c. a memorandum of agreement between a building contractor and a neighboring municipality; d. a memorandum of agreement between another private contractor and the municipality where he sits as judge. (1995 Bar)

If the signatory is old or sick or otherwise unable to appear, his presence may be dispensed with if one credible witness not privy to the instrument and who is known to the notary public, certifies under oath or affirmation the identity of the signatory. If two credible witnesses neither of whom is privy to the instrument, not known to the notary public but can present their own competent evidence of identity, certify under oath or affirmation to the identity of the signatory. In case of copy certification and issuance of certified true copies.

A: Municipal Judges may not engage in notarial work except as notaries public ex-officio. As notaries public ex-officio, they may engage only in notarization of documents connected with the exercise of their judicial functions. They may not as such notaries public ex-officio, undertake the preparation and acknowledgment of private documents, contracts and other acts of conveyance, which bear no relation to the performance of their functions as judges.

Q: What are the powers and duties of a notary public? (1995 Bar) A: Every notary public shall have power to administer all oaths and affirmations provided for by law, in all matters incidents to his notarial office, and in the execution of affidavits, depositions, and other documents requiring an oath; to receive the proof or acknowledgment of all writings relating to commerce or navigation, such as bills of exchange, bottomries, mortgages, and hypothecations of ships, vessels, or boats, charter parties or affreightments, letters of attorney, deeds, mortgages, transfers and assignments of land or buildings, or an interest therein, and such other writings as are commonly proved or acknowledged before notaries; to act as a magistrate in the writing of affidavits or depositions, and to make declarations and certify the truth thereof under his seal of office, concerning all matters done by him by virtue of his office (Sec. 241, Notarial Law).

However, taking judicial notice of the fact that there are still municipalities which have neither lawyers nor notaries public, the Supreme Court ruled that MTC and MCTC Judges assigned to municipalities or circuits with no lawyers or notaries public may, in their capacity as notaries public ex-officio, perform any act within the competency of a regular notary public, provided that: (1) all notarial fees charged be for the account of the Government and turned to the municipal treasurer and (2) certification be made in the notarized documents attesting to the lack of any lawyer or notary public of such municipality or circuit (Balayon, Jr. vs. Ocampo, 218 SCRA 13).

The duties of a notary public are the following: 1. 2. 3. 4. 5. 6.

7.

On the basis of the foregoing, I would say that the propriety of the actuations of the municipal judge in this problem depends on whether or not there are notaries public available in his community. If there are notaries available, his acts are improper. Otherwise they are proper, provided that the two conditions mentioned above are complied with.

To keep a notarial register; To make the proper entry or entries in the notarial register touching his notarial acts in the manner required by the law; To send the copy of the entries to the proper clerk of court within the first 10 days of the month next following; To affix to acknowledgments the date of expiration of his commission, as required by law; To forward his notarial register, when filled, to the proper clerk of court; To make report, within a reasonable time, to the proper judge concerning the performance of his duties, as may be required by such judge; To make the proper notation regarding residence certificates (Sec. 247, Rev. Adm. Code).

JURISDICTION OF NOTARY PUBLIC AND PLACE OF NOTARIZATION Q: Atty. Sabungero obtained a notarial commission. One Sunday, while he was at the cockpit, a person approached him with an affidavit that needed to be notarized. Atty. Sabungero immediately pulled out from his pocket his small notarial seal, and notarized the document. Was the affidavit validly notarized? Explain. (2009 Bar) A: Section 2, Rule IV of the 2004 Rules on

45

Legal and Judicial Ethics

Notarial Practice provides that a Notary Public shall not perform a notarial act outside his regular place of work, except in few exceptional occasions or situations, at the request of the parties. Notarizing in a cockpit is not one of such exceptions. The prohibition is aimed to eliminate the practice of ambulatory notarization. However, assuming that the cockpit is within his notarial jurisdiction, the notarization may be valid but the notary public should be disciplined.

of notarization. Tristan was not in Atty. Agaton’s presence when the latter notarized the deed of sale in his office in Cavite; moreover, Tristan signed in Bulacan which is outside the Atty. Agaton’s territorial jurisdiction. CANONS OF PROFESSIONAL ETHICS Q: Under the Code of Professional Responsibility, what is the principal obligation of a lawyer towards:

Q: What is the extent of the jurisdiction of a notary public? (1995 Bar) A: The Jurisdiction of a notary public in a province shall be co-extensive with the province. The jurisdiction of a notary public in the City of Manila shall be co-extensive with said city. No notary shall possess authority to do any notarial act beyond the limits of his jurisdiction (Sec. 240, Rev. Adm. Code).

a.

The legal professional and the Integrated Bar? b. His professional colleagues? c. The development of the legal system? d. The administration of justice? e. His client? (2004 Bar) A:

Q: Atty. Z, a notary public commissioned in Quezon City, attended a wedding at Makati. B requested Z to notarize a deed of sale executed between X and Y who were both in Baguio City. Atty. Z who has a portable notarial seal, notarized the document. Subsequently, X assailed the document alleging that his signature thereon was falsified. X filed a case for disbarment against Atty. Z.

a.

b.

Will the complaint prosper? Explain. (1996 Bar)

c.

A: Atty. Z may be held criminally liable for violating Article 171 (Falsification by Public Officer) of the Revised Penal Code, by making it appear that X and Y appeared and acknowledged having executed the deed of sale before him, when in fact they did not so appear or acknowledged. He may also be administratively liable for not obeying the laws of the land (Canon 1, Code of Professional Responsibility). Moreover, his jurisdiction as notary is only in Quezon City.

ALTERNATIVE ANSWER: a.

Q: Jojo, a resident of Cavite, agreed to purchase the lot owned by Tristan, a resident of Bulacan. Atty. Agaton, Jojo’s lawyer who is also a notary public, prepared the Deed of Sale and Jojo signed the document in Cavite. Atty. Agaton then went to Bulacan to get the signature of Tristan. Thereafter, Atty. Agaton went back to his office in Cavite where he notarized the Deed of Sale. Is the notarization legal and valid? Explain. (2016 Bar)

b.

A lawyer shall keep abreast of legal developments, participate in continuing legal education programs, support efforts to achieve high standards in law schools as well as in the practical training of law students and assist in disseminating information regarding the law and jurisprudence (Canon 5, Code of Professional Responsibility). A lawyer shall exert every effort and consider his duty to assist in the speedy and efficient administration of justice (Canon 12, Code of Professional Responsibility).

ALTERNATIVE ANSWER:

A: The Notarization is not legal and valid. Rule IV, Section 2(b) of the 2004 Rules on Notarial Practice provides that a person shall not perform a notarial act if the person involved as signatory to the instrument or document is not personally in the notary’s presence at the time

UST BAR OPERATIONS

A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the activities of the integrated bar (Canon 7, Code of Professional Responsibility). A lawyer shall conduct himself with courtesy, fairness and candor towards his professional colleagues, and shall avoid harassing tactics against opposing counsel (Canon 8, Code of Professional Responsibility). A lawyer shall participate in the improvement of the legal system by initiating or supporting efforts in law reform and in the administration of justice (Canon 4, Code of Professional Responsibility).

a.

46

A lawyer shall participate in the improvement of the legal system by initiating or supporting efforts in law reform and in the administration of justice (Canon 4, Code of Professional Responsibility).

QUAMTO (1987-2017) b.

A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his client (Canon 15, Code of Professional Responsibility).

Philippine Judiciary adds that “judges shall disqualify themselves from participating in any proceedings in which they are unable to decide the matter impartially or in which it may appear to a reasonable observer that they are unable to decide the matter impartially.”

JUDICIAL ETHICS Disqualification of Justices and Judges (Rule 137)

There is no mandatory ground for Judge Lucio to disqualify himself. The second cousin of his wife, a sixth degree relative, is appearing not as a party but as counsel.

Q: In a land registration case before Judge Lucio, the petitioner is represented by the second cousin of Judge Lucio’s wife.

b.

a.

Differentiate between compulsory and voluntary disqualification and determine if Judge Lucio should disqualify himself under either circumstances. b. If none of the parties move for his disqualification, may Judge Lucio proceed with the case? (2015 Bar) A: a.

Q: Rebecca’s complaint was raffled to the sala of Judge A. Rebecca is a daughter of Judge A’s wife by a previous marriage. This is known to the defendant who does not, however, file a motion to inhibit the Judge. Is the Judge justified in not inhibiting himself from the case? (2010 Bar)

In compulsory disqualification, the judge is compelled to inhibit himself from presiding over a case when any of the ground provided by the law or the rules exist. Under Section 1, Rule 137 of the Revised Rules of Court, no judge or judicial officer shall sit in any case (1) in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or (2) in which he is related to either party within the sixth degree of consanguinity or affinity or to counsel within the fourth degree computed according to the rules of the civil law, or (3) in which he has been executor, administrator, trustee or counsel, or (4) in which he has presided in any inferior court when his ruling or decision is the subject of review, without consent of all parties in interest and entered upon the record.

A: The judge is not justified in not inhibiting himself. It is mandatory for him to inhibit if he is related to any of the parties by consanguinity or affiant within the sixth civil degree (Sec. 3 [f] Canon 3, New Code of Judicial Conduct for the Philippine Judiciary). Judge A, being the stepfather of Rebecca, is related to her by affinity by just one degree. “Judges shall disqualify themselves from participating in any proceeding in which they are unable to decide the matter impartially or in which it may appear to a reasonable observer that they are unable to decide the matter impartially” (Id., Sec. 5, Canon 3). The fact that Rebecca is a daughter of Judge A’s wife is liable to make a reasonable observer doubt his impartially.

Section 5, Canon 3 of the New Code of Judicial Conduct for the Philippine Judiciary adds the following grounds: a.

b.

If none of the parties moves for his disqualification, Judge Lucio may proceed with the case. All the more so if, without the participation of the Judge, the parties and their lawyers execute a written agreement that Judge Lucio may proceed with the same, and such agreement Is signed by them and made a part of the records of the case.

Q: RTC Judge Q is a deacon in the IglesianiKristo church in San Francisco del Monte, Quezon City. R, a member of the same religious sect belonging to the same INK community in San Francisco del Monte, filed a case against S who belongs to the El Shaddai charismatic group. The case was raffled to Judge Q's sala. The lawyer of S filed a motion to disqualify Judge Q on the ground that since he and the plaintiff belonged to the same religious sect and community in San Francisco del Monte, Judge Q would not possess the cold neutrality of an impartial judge. Judge Q denied the motion on the ground that the, reason invoked for his disqualification was not among the grounds for disqualification under the Rules of Court and the Code of Judicial Conduct. Was Judge Q’s denial of

The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings; The judge has previously served as a lawyer or was a material witness in the matter under controversy.

In voluntary disqualification, a judge may inhibit himself in the exercise of his discretion. Paragraph 2, Rule 137 of the Revised Rules of Court provides that “a judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just and valid reasons other than those mentioned above”. The New Code of Professional Conduct for the

47

Legal and Judicial Ethics

the motion for inhibition well founded? (1997 Bar)

the judge's voluntary inhibition be sustained? (1989, 1988 Bar)

A: The fact that Judge Q and Litigant R both belong to the Iglesia Ni Kristo while Litigant S belongs to the El Shaddai group, is not a mandatory ground for disqualifying Judge Q from presiding over the case. The motion for his inhibition is addressed to his sound discretion and he should exercise the same in a way the people's faith in the courts of justice is not impaired. He should reflect on the probability that a losing party might nurture at the back of his mind the thought that the Judge had unmeritoriously tilted the scales of Justice against him (Dimacuha vs. Concepcion. 117 SCRA630). Under the circumstances of this case, where the only ground given for his disqualification is that he and one of the litigants are members of the same religious community, I believe that his denial of the motion for his disqualification is proper. In Vda. de Ignacio v. BLTBus Co., 34 SCRA 618, the Supreme Court held that the fact that one of the counsels in a case was a classmate of the trial judge is not a legal ground for the disqualification of the judge.

A: 1.

Q: Lawyer W lost his ejectment case in the Municipal Trial Court. He appealed the decision to the RTC which V, the judge thereof, affirmed through a memorandum decision. He filed a motion for reconsideration praying that the RTC should state the facts and the law on which its decision is based. Judge V denied his motion. Instead of filing a Petition for Review, lawyer W filed an administrative complaint against Judge V for breach of the Code of Judicial Conduct. What is the liability of Judge V, if any? (1991 Bar)

Under said rule, the judge may voluntarily inhibit himself from sitting in a case, for just and valid reasons other than those mentioned in the rule. 2.

A: There is no breach of the Code of Judicial Conduct committed by the RTC Judge. The memorandum decision rendered in an appeal from the Municipal Court in its original jurisdiction carries with it the statement of facts found by the Municipal Court which are deemed affirmed by the RTC judge. Memorandum decisions are allowed on appeal. Q: 1. Discuss briefly the grounds for disqualification or inhibition of judges to try a case. 2. A judge rendered a decision in a criminal case finding the accused guilty of estafa. Counsel for the accused filed a motion for reconsideration which was submitted without arguments. Later, another lawyer entered his appearance for the accused. The judge issued an order inhibiting himself from further sitting in the case because the latter lawyer had been among those who recommended him to the Bench. Can

UST BAR OPERATIONS

Under Rule 137 Section 1 of the Rules of Court, a judge is disqualified to sit in every case in which he, or his wife or child, is pecuniarily interested as heirs; legatee, creditor, or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree computed according to the rules of civil law or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record. This rule enumerates the grounds under which a judge is legally disqualified from sitting in a case, and excludes all other grounds not specified therein. The judge may, however, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above.

The judge may not voluntarily inhibit himself by the mere fact that a lawyer recommended him to the Bench. In fact, the appearance of said lawyer is attest as to whether the judge can act independently and courageously in deciding the case according to his conscience. Inhibition is not allowed at every instance that a friend, classmate, associate or patron of a presiding judge appears before him as counsel for one of the parties to a case. “Utang na loob”, per se, should not be a hindrance to the administration of justice. Nor should recognition of such value in Philippine society prevent the performance of one’s duties as judge, xxx (Masadao and Elizaga Re: Criminal Case No. 4954-M; 155 SCRA 7879). However, in order to avoid any suspicion of partiality, it is better to the judge to voluntarily inhibit himself.

Q: Judge L is assigned in Turtle Province. His brother ran for Governor in Rabbit Province. During the election period this year, judge L took a leave of absence to help his brother conceptualize the campaign strategy. He even contributed a modest amount to the campaign kitty and hosted lunches and dinners. Did Judge L incur administrative and/or

48

QUAMTO (1987-2017) criminal liability? Explain. (2010 Bar)

b.

A: Judge L incurred administrative liability. Rule 5.18 of the Code of Judicial Conduct (which is applicable in a suppletory character to the New Code of Conduct for the Philippine Judiciary) provides that “[A] Judge is entitled to entertain personal views on political questions, but to avoid suspicion of political partisanship, a judge shall not make political speeches, contribute to party funds, publicly endorse candidates for political office or participate in other partisan political activities.”

c. d.

e.

He may also be held criminally liable for violation of Section 26 (I) of the Omnibus Election Code, which penalizes any officer or employee in the civil service who, directly or indirectly, intervenes, in any election campaign or engages in any partisan political activity, except to vote or to preserve public order.

f.

g.

Q: Judge C was appointed MTC Judge in 1993. Subsequently, the Judicial and Bar Council received information that previously he had been dismissed as Assistant City Prosecutor of Manila. It appeared that when he applied for appointment to the Judiciary, his answer to the question in the personal Data Sheet “Have you ever been retired, dismissed or forced to resign from any employment?" was - “Optional under Republic Act No. 1145.” The truth is, he was dismissed for gross misconduct as Assistant City prosecutor.

Section 1, Rue 137 of the Revised Rules of Court, provides for similar grounds. Q:In a case for homicide filed before the Regional Trial Court (RTC), Presiding Judge Quintero issued an order for the arrest of the accused, granted a motion for the reduction of bail, and set the date for the arraignment of the accused. Subsequently, Judge Quintero inhibited himself from the case, alleging that even before the case was raffled to his court, he already had personal knowledge of the circumstances surrounding the case. Is Judge Quintero’s inhibition justified? Explain. (2009, 2004 Bar)

May he be dismissed as Judge? [1998 Bar] A: Yes. By his concealment of his previous dismissal from the public service, which the Judicial and Bar Council would have taken into consideration in acting on his application for appointment as a judge, he (the judge) committed an act of dishonesty that rendered him unfit to be appointed, and to remain, in the Judiciary he has tarnished with his falsehood (Re: Inquiry on the Appointment of Judge Enrique A. Cube, 227 SCRA 193; Jose Estacion, 181 SCRA 33, EstanislaoBelan, August 6, 1998).

A: Judge Quintero’s inhibition is justified. One of the grounds for inhibition under Section 5, Canon 3 of the New Code of Judicial Conduct for the Philippine Judiciary is “where the judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings.”

Compulsory Q: State at least five (5) instances where judges should disqualify themselves from participating in any proceedings where their impartiality might reasonably be questioned (2016 Bar)

Q: In a case before him, it was the son of Municipal Trial Court Judge X who appeared as counsel for the plaintiff. After the proceeding, judgment was rendered in favor of the plaintiff and against the defendant, B. the defendant in the case, complained against Judge X for not disqualifying himself in hearing and deciding the case. In his defense, Judge X alleged that he did not disqualify himself in the case because the defendant never sought his disqualification.

A: Any five (5) of the following instances provided in Sec. 5, Canon 3 of the New Code of Conduct for the Philippine Judiciary: a.

The judge previously served as a lawyer or was a material witness in the matter in controversy; The judge or a member of his or her family has an economic interest in the outcome of the matter in controversy; The judge served as executor, administrator, guardian, trustee or lawyer in the case or matter in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein; The judge’s ruling in a lower court is the subject of review; The judge is related by consanguinity or affinity to a party litigant within the sixth civil degree or to counsel within the fourth civil degree; or The judge knows that his or her spouse or child has a financial interest, as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceedings.

The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings;

49

Legal and Judicial Ethics

Is Judge X liable for misconduct in office? (1999 Bar)

Court held that the Court of Appeals Justice concerned was not legally bound to inhibit himself from the case. However, he “should have been more prudent and circumspect and declined to take on the case, owing to his earlier involvement in the case,” because “a judge should not handle a case in which he might be perceived, rightly or wrongly, to be susceptible to bias and partiality.” This axiom is “intended to preserve and promote public confidence in the integrity and respect for the judiciary.”

A: Judge X is liable for misconduct in office. Rule 3.12 of the Code of Judicial Conduct provides that a judge should take no part in a proceeding where his impartiality might reasonably be questioned. In fact, it is mandatory for him to inhibit or disqualify himself if he is related by consanguinity or affinity to a party litigant within the sixth degree or to counsel within the fourth degree (Hurtado v. Jurdalena, 84 SCRA 41). He need not wait for a motion of the parties in order to disqualify himself.

Q: The criminal case arising from the P10 Billion Peso pork barrel scandal was raffled to Sandiganbayan Justice Marciano Cobarde. Afraid that he would antagonize the parties, his political patrons and ultimately, his judicial career, he decided to inhibit from participating in the case, giving “personal reasons” as his justification.

Voluntary Q: Judge Clint Braso is hearing a case between Mr. Timothy and Khristopher Company, a company where his wife used to work as one of its Junior Executives for several years. Doubting the impartiality of the Judge, Mr. Timothy filed a motion to inhibit Judge Clint Braso refused on the ground that his wife has long resigned from the company. Decide. (2014 Bar)

If you were to question the inhibition of SB Justice Cobarde, on what legal basis, and where and how will you do this? (2013 Bar) A: The grounds relied upon by Justice Cobarde for his inhibition conveys the impression that “the parties” and “his political patrons” are in a special position improperly to influence him in the performance of judicial duties (New Code of Conduct for the Philippine Judiciary, Canon 4, Sec. 8). Furthermore, the Sandiganbayan sits in Divisions, so the fears of Justice Cobarde are unfounded. Justice Cobarde should not shirk from the performance of his judicial duties. I would file a motion with the Division of the Sandiganbayan in which Justice Cobarde is sitting for the remittal of his voluntary inhibition. I would advance in motion the reasons why the “personal reasons” set forth by the Justice are insubstantial and does not merit his inhibition. I would likewise set the motion for hearing as appropriate.

A: The fact that Judge Braso’s wife used to work for Khristopher Company is not a mandatory ground for his inhibition. However, Section 2, Canon 3 of the New Code of Judicial Conduct for the Philippine Judiciary provides that judges should disqualify themselves from participating in any proceeding in which “it may appear to a reasonable observer that they are unable to decide the matter in partially.” The Supreme Court has advised that a judge “should exercise his decision in a way that the people’s faith in the courts of justice is not impaired” (Pimentel v. Salanga, G.R. No. L27934, September 18, 1967). While it may not be reasonable to believe that Judge Braso cannot be impartial because his wife used to work as a Junior Executive for Khristopher Company, the better part of prudence would dictate that he inhibit himself from the case involving the said company.

Q4: Assume that your friend and colleague, Judge Peter X. Mahinay, a Regional Trial Court judge stationed at KL City, would seek your advice regarding his intention to ask the permission of the Supreme Court to act as counsel for and thus represent his wife in the trial of a civil case for damages pending before the Regional Trial Court of Aparri, Cagayan.

Q: Justice B of the Court of Appeals (CA) was a former Regional Trial Court (RTC) Judge. A case which he heard as a trial judge was raffled off to him. The appellant sought his disqualification from the case but he refused on the ground that he was not the judge who decided the case as he was already promoted to the appellate court before he could decide the case.

What would be your advice to him? Discuss briefly. (2004 Bar) A: I would advise him against it. Rule 5.07 of the Code of Judicial Conduct expressly and absolutely prohibits judges from engaging in the private practice of law, because of the incompatible nature between the duties of a judge and a lawyer. Moreover, as a Judge he can influence to a certain extent the outcome of the case even if it is with another court. A Judge shall refrain from influencing in any manner

Was the refusal of Justice B to recuse from the case proper? Explain your answer. (2014 Bar) A: The refusal of Justice B to recuse from the case is improper. In the case of Sandoval v. CA (G.R. No. 106657, August 1, 1996, 260 SCRA 283), involving the same facts, the Supreme

UST BAR OPERATIONS

50

QUAMTO (1987-2017) the outcome of litigation or dispute pending before another court or administrative agency (Rule 2.04, Code of Judicial Conduct).

the letter were pages from transcripts of records in several cases heard before Judge Hambog, with Judge Hambog’s arrogant, abusive, inappropriate, embarrassing and/or insulting remarks or comments highlighted.

Q: On what grounds may a judge be disqualified, or asked to voluntarily inhibit himself from hearing a case? Briefly explain each ground. (1988 Bar)

Describe briefly the procedure followed when giving due course to a complaint against an RTC judge. (2015 Bar)

A: Rule 137, Section 1 of the Rules of Court provides that a judge is disqualified from sitting on any case in which he or his wife or child is pecuniarily interested as heir, legatee, creditor or otherwise or in which he is related to either party within sixth degree of consanguinity of affinity or to counsel within the fourth civil degree.

A: If the complaint is sufficient in form and substance, a copy thereof shall be sent to the respondent, and he shall be required to comment within 10 days from date of service. Upon the filing of the respondent’s comment, the Supreme Court shall refer the matter to the Office of the Court Administrator for evaluation, report and recommendation, or assign the case to a Justice of the Court of Appeals, for investigation, report and recommendation. The investigating Justice shall set a date for the hearing and notify the parties thereof, and they may present evidence, oral or documentary, at such hearing. The investigating Justice shall terminate the investigation within 90 days from its commencement, and submit his report and recommendation to the Supreme Court within 30 days from the termination of the investigation. The Supreme Court shall take action on the report as the facts and the law may warrant (Rule 140).

Under the last sentence of Rule 137, Section 1 of the Rules of Court, a judge may voluntarily inhibit himself from participating in a case for just and valid reasons. The rule on voluntarily inhibition of judges was set by the Supreme Court in Pimentel v. Salonga, 21 SCRA160 as follows: All the foregoing notwithstanding, this should be a good occasion as any to draw the attention of all judges to appropriate guidelines in a situation where their capacity to try and decide fairly and judiciously comes to the fore by way of challenge from any one of the parties. A judge may not be legally prohibited from sitting in a litigation. But when the suggestion is made of record that he might be induced to act in favor 'of one party or with bias or prejudice ‘against a litigant arising out of circumstances reasonably capable of inciting such a state of mind, he should conduct a careful self-examination.

Q: Judge A has an illicit relationship with B, his Branch Clerk of Court. C, the wife of Judge A, discovered the illicit affair and consulted a lawyer to vindicate her violated marital rights. If you were that lawyer, what would you advice C, and if she agrees and asks you to proceed to take action, what is the legal procedure that you should follow? Discuss fully. (2014 Bar) A: I will advice her to file an administrative case against Judge A with the Supreme Court. I can tell her that she can also file civil or criminal actions against him. But an administrative case is confidential in nature and will not unnecessarily drag the name and reputation of the court into the picture.

He should exercise his discretion in a way that the people’s faith in the courts of justice is not impaired.

DISCIPLINE OF MEMBERS OF THE JUDICIARY

INITIATION OF COMPLAINT AGAINST JUDGES AND JUSTICES

Lower court judges and justices of the Court of Appeals, Sandiganbayan and Court of Tax Appeals (Rule 140)

Q: An anonymous letter addressed to the Supreme Court was sent by one Malcolm X, a concerned citizen, complaining against Judge Hambog, Presiding Judge of the RTC of Mahangin City, Branch 7. Malcolm X reported that Judge Hambog is acting arrogantly in court; using abusive and inappropriate language; and embarrassing and insulting parties, witnesses, and even lawyers appearing before him. Attached to

Q: A complaint for rape against ZZ was filed by the father of Dulce, an 11-year old girl, with the Municipal Trial Court of Bantayan, Cebu. After preliminary examination of the offended party and the witnesses, Judge YY of said court issued an order finding probable cause and ordering the arrest of ZZ without bail. ZZ was arrested and

51

Legal and Judicial Ethics

detained. He file: (1) a Waiver of Preliminary Investigation, and (2) an ExParte Motion to Fix Bail Bond. Judge YY granted the waiver and forthwith elevated the records of the case to the RTC, which forwarded the same to the Office of the Provincial Prosecutor.

The application of the “res ipsa loquitur” rule in the removal of judges is assailed in various quarters as inconsistent with due process and fair play.

Ten (10) days after the elevation of the records. YY, acting on the Motion To Fix Bail, issued an order fixing the bail bond at P20, 000.00. The father of Dulce filed against YY an administrative complaint for ignorance of law, oppression, grave abuse of discretion and partiality. If you were the executive judge of the RTC designated to investigate the case and to make a report and recommendation thereon, what would be your recommendation? (1991 Bar)

A: In one view, there is a basis for the reaction against the res ipsa loquitur rule on removing judges. According to the position taken by the Philippine Bar Association. The res ipsa loquitur rule might violate the principle of due process, that is the right to be heard before one is condemned

Is there basis for such a reaction? Explain. (1988 Bar)

Moreover, Rule 140 of the Rules of Court provides for the procedure for the removal of judges. Upon service of the complaint against him, he is entitled to file his answer. If the answer merits a hearing, it is referred to a justice of the Court of Appeals for investigation, the report of the investigation is submitted to the Supreme Court for proper disposition.

A: The facts narrated in this case is similar to the decision of the Supreme Court in 1989. The judge was found guilty of ignorance of the law for granting bail despite the fact that he had already lost jurisdiction after elevating the records of the case to the Regional Trial Court.

The danger in applying the res ipsa loquitur rule is that the judge may have committed only an error of judgment. His outright dismissal does violence to the jurisprudence set In Re Horilleno, 43 Phil. 212.

If I am the RTC Judge assigned to investigate the case I would recommend the dismissal of the Judge for gross ignorance of the law. Q: Under the grievance procedures in Rule 139-B of the Rules of Court, may judges be investigated by the Integrated Bar of the Philippines? Explain. (1989 Bar)

The other view taken by the Supreme Court is that the lawyer or a judge can be suspended or dismissed based in his activities or decision, as long as he has been given an opportunity to explain his side. No investigation is necessary.

A: Judges may not be investigated under the grievance procedure in Rule 139-B of the Rules of Court. Complaints against judges are filed with the Supreme Court which has administrative supervision over all courts. This was the ruling of the Supreme Court in a minute resolution in reply to the letter of acting Presiding Justice of the Court of Appeals Rodolfo Nocon 03 January 1989.

Grounds

Q: In Administrative Circular No. 1 addressed to all lower courts dated January 28, 1988, the Supreme Court stressed:

Q: An Audit team from the Office of the Court Administrator found that Judge Contaminada committed serious infractions through the indiscriminate grant of petitions for annulment of marriage and legal separation. In one year, the judge granted 300 of such petitions when the average number of petitions of similar nature granted by an individual judge in his region was only 24 petitions per annum.

All judges are reminded that the Supreme Court has applied the “Res Ipsa Loquitur” rule in the removal of judges even without any formal investigation whenever a decision, on its face, indicates gross incompetence or gross ignorance of the law or gross misconduct (See: People vs. Valenzuela, 135 SCRA 712; Cathay Pacific Airways vs. Romillo, Jr., 142 SCRA 262).

The audit revealed many different defects in the granted petitions; many petitions had not been verified; the required copies of some petitions were not furnished to the Office of the Solicitor General and the Office of the Provincial Prosecutor; docket fees had not been fully paid; the parties were not actual residents within the territorial jurisdiction of the court; and, in some cases, there was no record of the crossexaminations conducted by the pubic prosecutor or any documentary evidence marked and formally offered. All these, viewed in their totality, supported the improvident and indiscriminate grant that the OCA found.

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QUAMTO (1987-2017) If you were the counsel for Andy Malasuerte and other litigants whose marriages had been improperly and finally annulled, discuss your options in administratively proceeding against JudgeContaminada, and state where and how you would exercise these options. (2013 Bar)

Q: Before he joined the bench, Judge J was a vice-mayor. Judge J resumed writing a weekly column in a local newspaper. In his column, Judge J wrote: “It was wondering if the present vice-mayor can shed off his crocodile hide so that he can feel the clamor of the public for the resignation of hoodlum public officers of which he is one".

A: As a counsel for Andy Malasuerte, I have the option of participating in the administrative proceedings by filing a verified complaint in writing against Judge Contaminado, with the Office of the Court Administrator, supported by affidavits of persons who have personal knowledge of the facts alleged therein or by documents which may substantiate said allegations. The complaint shall state clearly and concisely the acts and omissions constituting violations of standards of conduct prescribed for judges by law, the Rules of Court, the Code of Judicial Conduct (Rules of Court, Rule 140, Sec. 1) and the new Code of Conduct for the Philippine Judiciary.

When charged administratively, Judge J invoked freedom of expression. Is his defense tenable? Explain. (Bar) A: The Judge’s reliance on freedom of expression is untenable. The judge's vicious writings compromise his duties as judge in the impartial administration ofjustice. His writings lack judicial decorum which requires the use of temperate language at all times. The judge should not instigate litigation (Galang v. Santos, 307 SCRA 583 [1999], Royeca v. Animas. 71 SCRA 1 [1976]).

Q: Judge Horacio would usually go to the cockpits on Saturdays for relaxation, as the owner of the cockpit is a friend of his. He also goes to the casino once a week to accompany his wife who loves to play the slot machines. Because of this, Judge Horacio was administratively charged. When asked to explain, he said that although he goes to these places, he only watches and does not place any bets.

Q: A judge, in order to ease his clogged docket, would exert efforts to compel the accused in criminal cases to plead guilty to a lesser offense and advise party litigants in civil cases, whose positions appear weak, to accept the compromise offered by the opposing party. Is the practice legally acceptable? (1998 Bar)

Is his explanation tenable? Explain. (2005 Bar)

A: The practice is legally acceptable as long as the judge does not exert pressure on the parties and takes care that he does not appear to have prejudged the case. Where a judge has told a party that his case is weak before the latter was fully heard, such was considered as a ground for his disqualification (Castillo v. Juan, 62 SCRA 124).

A: The explanation of Judge Horacio is not tenable. In the case of City of Tagbilaran vs. Hontanosas, Jr., 375 SCRA 1 [2002], the Supreme Court penalized a city court judge for going to gambling casinos and cockpits on weekends. According to the Court, going to a casino violates Circular No. 4, dated August 27, 1980, which enjoins judges of inferior courts from playing or being present in gambling casinos.

Q: A Judge of the Regional Trial Court, notwithstanding the fact that he was facing criminal charges at the time he obtained his appointment, did not disclose the pendency of the cases either to the President or to the Supreme Court. He claims that: (a) he enjoys presumption of innocence in the pending criminal cases; (b) that the said cases even if sustained after trial do not involve moral turpitude; and (3) before an administrative complaint based on a criminal prosecution can be given due course there must be a conviction by final Judgment.

The prohibition refers to both actual gambling and mere presence in gambling casinos. A judge’s personal behavior, not only in the performance of judicial duties, but also in his everyday life, should be beyond reproach. With regard to going to cockpits, the Supreme Court held that “verily, it is plainly despicable to see a judge inside a cockpit and more so, to see him bet therein. Mixing with the crowd of cockfighting enthusiasts and bettors is unbecoming a judge and undoubtedly impairs the respect due him. Ultimately, the Judiciary suffers therefrom because a judge is a visible representation of the Judiciary" (City of Tagbilaran v. Hontanosas, Jr., ibid at p. 8).

May the Judge be considered as an undeserving appointee and therefore be removed from his office? (1996 Bar) A: He may be considered as undeserving and removed from office. This problem falls squarely under the decision of the Supreme

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Legal and Judicial Ethics

Court in the case of Court Administrator v. Estacion, 181 SCRA 33, wherein a complaint was filed concerning the appointment of a Regional Trial Court judge notwithstanding the fact that he was then facing criminal charges for homicide and attempted homicide. The Judge also claimed that (a) he enjoys the presumption of innocence, (b) the said cases, even if sustained, do not involved moral turpitude, and (c) before an administrative complaint based on a criminal prosecution is given due course, there must be a conviction by final judgment. The Supreme Court held:

A.B., Filipino, of legal age, single, with residence at _______________ and hereafter called the LESSOR - andB.D., Filipino, of legal age, single, with residence at _________________and hereafter called the LESSEE. WITNESSETH: THAT, for and in consideration of the rentals to be paid, the LESSOR has hereby leased to the LESSEE and the LESSEE hereby accepts the same In lease, the * following described property:

“The argument that he had not yet been convicted and should be presumed innocent is beside the point, and so is the contention that the crimes of homicide and attempted homicide do not involve moral turpitude. The important consideration is that he had a duty to inform appointing authority and this Court of the pending criminal charges against him to enable them to determine on the basis of his record, eligibility for the position he was seeking. He did not discharge that duty. His record did not contain the important information in question because he deliberately withheld and thus effectively hid it. His lack of candor is as obvious as his reason for suppression of such vital fact, which he knew would have been taken into account against him if it had been disclosed. As stressed in the report, it behooves every prospective appointee to the judiciary to apprise the appointing authority of every matter bearing on his fitness for judicial office, including such circumstances as may reflect on his integrity and probity. These are qualifications specifically required of appointees to the judiciary under Article VIII, Sec. 7 (3) of the Constitution. The fact alone of his concealment of the two criminal cases against him is clear proof of his lack of the said qualifications and renders him unworthy to sit as a Judge."

(description of apartment) subject to the following terms and conditions: 1.

Period of the Lease-

2.

Rentals to be Paid –

3.

(Other terms and conditions)

IN WITNESS WHEREOF, the parties hereto have signed these presents, at __________________, this _________________day of _____________, 1998. A.B. Lessor

C.D. Lessee

WITNESSES (acknowledgment)

SIMPLE CONTRACTS – LEASE, SALE OF REALTY

Q: Gerry Cruz is the owner of a 1,000square meter lot covered by Transfer Certificate of Title No. 12345 located in Sampaloc. Metro Manila. Gerry decided to sell the property but did not have the time to look for a buyer. He then designated his brother, Jon, to look for a buyer and negotiate the sale. Jon met Angelo Santos who expressed his interest to buy the lot. Angelo agreed to pay PI Million for the property on September 26. 2005.

Q: Prepare a Contract of Lease of an apartment unit, (1998, 1996, 1988, 1987)

Draft the Deed of Sale of Real Property. (2005, 1991, 1989)

A:

A:

CONTRACT OF LEASE

DEED OF ABSOLUTE SALE

KNOW ALL MEN BY THESE PRESENTS:

KNOW ALL MEN BY THESE PRESENTS:

This contract of lease, entered into by and between:

This instrument, executed by and between:

The respondent Judge removed from office.

was

accordingly

PRACTICAL EXERCISES

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QUAMTO (1987-2017) GERRY CRUZ, of legal age, single, and a resident of _______________, herein represented by his Attorney-in-Fact, JON CRUZ, of legal age and a resident of _____________ and _____________ hereafter referred to as the VENDOR, -

deed, and the free and voluntary act and deed of the principal whom Mr. JON CRUZ represents. I further certify that the foregoing instrument is a deed of sale of a parcel of land located in Sampaloc, Manila, and consists of ____ pages, including this page, and is signed on each and every page by the said parties and their instrumental witnesses.

and -

ANGELO SANTOS, Filipino, of legal age, single, a resident of _____________ and hereafter referred to as the VENDEE,

WITNESS MY HAND AND SEAL.

WITNESSETH:

NOTARY PUBLIC My Commission expires on December 31, 2005 (Address) Commission No._______, Manila Attorney’s Roll No. IBP Membership No. PTR O.R. No. ________, Manila, 2005

THAT, for and in consideration of the sum of One Million Pesos (P1,000,000.00), in hand paid by the VENDEE to the VENDOR and receipt of which is herein acknowledged by the latter, the VENDOR has sold, transferred and conveyed, and by these presents does hereby sell, transfer and convey, unto the VENDEE, that certain parcel of land with an area of 1,000 square meters, more or less, located in Sampaloc, Manila, covered by Transfer Certificate of Title No. 12345 of the Register of Deeds of Manila, and which is more particularly described as follows:

Doc. No. Page No. Book No. Series of 2005. PROMISSORY NOTE

(technical description)

Q: Prepare a negotiable promissory note. (1994, 1991 Bar)

IN WITNESS WHEREOF, the parties hereto have signed these presents at Manila, this 26th day of September, 2005. GERRY CRUZ SANTOS Vendor T.I.N. _________

A: City of Manila, September 28, 1994 6,000.00

ANGELO Vendee T.I.N. _________

Thirty (30) days after date, I, Arturo M. Padilla, hereby promise to pay to the order of Milagros Concepcion, the sum of six thousand (6,000.00) Pesos (Philippine Currency).

By: JON CRUZ Attorney-in-Fact

(Sgd.) Arturo M. Padilla VERIFICATION AND CERTIFICATE OF NONFORUM SHOPPING

WITNESSES: ___________________ _________________

Q: Prepare a Verification and Certification against Forum Shopping. (2010, 2003) A:

ACKNOWLEDGMENT

VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING

REPUBLIC OF THE PHILIPPINES) CITY OF MANILA ) S.S.

X, after being duly sworn, hereby deposes and states:

IN THE CITY OF MANILA, Philippines, personally appeared before me, Mr. JON CRUZ, with Community Tax Certificate No. ____________issued at ____________ on ______________, 2005, in his capacity as Attorney-in-Fact of Mr. GERRY CRUZ, with Community Tax Certificate No. ____________issued at ____________ on ______________, 2005, both of whom are personally known to me to be the same persons who executed the foregoing instrument, and they acknowledged to me that the same is their free and voluntary act and

That he is the plaintiff in the above-entitled case; that he has caused the foregoing Complaint to be prepared; that he has read the same and that the allegations of fact therein contained are true of his personal knowledge or based on authentic documents;

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Legal and Judicial Ethics

That (a) he has not heretofore commenced any action of filed an claim involving the same issued in any court, tribunal or quasi-judicial agency, and to the best of his knowledge, no such other action or claim is pending therein; and (b) if he should thereafter learn that the same of similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to this Honorable Court.

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