2009 Legal Ethics Bar Exam Questions

PART I I TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

NEW CODE OF JUDICIAL CONDUCT A. The Bangalore Draft, approved at a Roundtable Meeting of Chief Justices held at The Hague, is now the New Code of Judicial Conduct in the Philippines. (True of False, explain) TRUE. The Bangalore Draft was adopted by the Philippine Supreme Court through Admin matter No. 03-05-01-SC and which took effect on June 1, 2004.

RULE 138 Attorneys and Admission to Bar A. A charging lien, as distinguished from a retaining lien, is an active lien which can be enforced by execution TRUE. A lawyer to insure the payment of his professional fee is either to retain the funds, documents, and papers of his client which may have lawfully come into his possession, or to enforce it upon any judgment for the payment of money he may secure in favor of his client. And it has been held that the retaining lien is dependent upon possession and does not attach to anything not in attorney's hands. The lien exists only so long as the attorney's retains possession ends (De Caina vs Victoriano) B. An attorney ad hoc is a lawyer appointed by the court to represent an absentee defendant in a suit in which the appointment is made. (TRUE OR FALSE) TRUE. C. What is the object of the bar examinations? Explain. ANSWER: Jurisprudence have provided that “the practice of law is not a right but a privilege bestowed by the State upon those who show that they possess, and continue to possess, the qualifications required by law for the conferment of such privilege.” Therefore, in order to stay true with the aforementioned principles, the object of the bar exam is to serve as a mechanism to determine who are qualified to practice law.

D. May a party appear as his own counsel in a criminal or in a civil case? Explain. Yes. In criminal cases, Sec 1(c) of Rule 115 of the Rules of Court provide that upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his right without the assistance of counsel. On the other hand, with respect to civil cases, Rule 138, Sec 34 states that “in the court of a justice of the peace a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for the purpose, or with the aid an attorney. In any other 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.” E. What is the student practice rule? Under this rule, 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, 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 of the law school. (Rule 138-A, Rules of Court)

CODE OF PROFESSIONAL RESPONSIBILITY CANON 15 - A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS. A. Lawyer cannot refuse to divulge the name or identity of his client. (True or False) FALSE. There are certain exceptions wherein the lawyer may refuse divulge the identity of his client. He may do so: 1. Where a strong probability exists that revealing the identity would implicate the client in the very activity for which he sought the lawyer’s advice. 2. Where disclosure would open the client to civil liability. 3. Where the government’s lawyers have no case against an attorney’s client unless by revealing the client’s name.

B. What are the three (3) tests to determine conflict of interest for practicing lawyers? Explain each briefly. In the case of Quiambao vs Bamba the S.C. held that “developments in jurisprudence have particularized various tests to determine whether a lawyer’s conduct lies within this proscription. One test is whether a lawyer is duty-bound to fight for an issue or claim in behalf of one client and, at the same time, to oppose that claim for the other client. Thus, if a lawyer’s argument for one client has to be opposed by that same lawyer in arguing for the other client, there is a violation of the rule. Another test of inconsistency of interests is whether the acceptance of a new relation would prevent the full discharge of the lawyer’s duty of undivided fidelity and loyalty to the client or invite suspicion of unfaithfulness or doubledealing in the performance of that duty. Still another test is whether the lawyer would be called upon in the new relation to use against a former client any confidential information acquired through their connection or previous employment.”

RULES ON NOTARIAL PRACTICE A. A notary public is disqualified from performing a notarial act when the party to the document is a relative by affinity within the 4th civil degree. (True or False) True. Under Sec 3 (c) of the 2004 Rules on Notarial Practice notary public is disqualified from performing a notarial act if he is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree. May a party appear as his own counsel in a criminal or in a civil case? Explain. (3%) Yes. In criminal cases, Sec 1(c) of Rule 115 of the Rules of Court provide that upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his right without the assistance of counsel. On the other hand, with respect to civil cases, Rule 138, Sec 34 states that “in the court of a justice of the peace a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for the purpose, or with the aid an attorney. In any other 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.”

a. 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. (3%) YES. Rule 3.12 of the CJC expressly provides that judges should take no part in the proceeding where the judge‘s impartiality might be reasonably questioned which includes, among other, having personal knowledge of disputed evidentiary facts concerning the proceeding. Furthermore, the issue of voluntary inhibition is primarily a matter of sound discretion on the part of the judge. Discretion is given to judges as an acknowledgement of the fact that they are in a better position to determine whether they should inhibit or not. b. After being diagnosed with stress dermatitis, Judge Rosalind, without seeking permission from the Supreme Court, refused to wear her robe during court proceedings. When her attention was called, she explained that whenever she wears her robe she is reminded of her heavy caseload, thus making her tense. This, in turn, triggers the outbreak of skin rashes. Is Judge Rosalind justified in not wearing her judicial robe? Explain. (3%) NO. Judge Rosalind is not justified in not wearing her judicial robes, absent a clear exemption granted to her by the Supreme Court from mandatory compliance with SC Administrative Circular (AC No. 25 of June 9,1989) requires the wearing of black robes by judges during sessions in their respective courts. Her medical condition per se is not a defense and is untenable since she is not in a position nor has the authority to disregard a clear directive. V 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. (4%)

YES. The disbarment case will prosper against Cliff for lack of continuing requirement as a lawyer.

In a case analogous to the instant case, a lawyer who led a woman into believing that they had been married civilly was disbarred because the Court considered the lawyer complained of as lacking in integrity and good moral character for him to remain as a member of the bar. (Cabrera vs. Agustin, 106 Phil. 256) VI 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. (3%) NO. The affidavit was not validly notarized in accordance with the Rules on Notarial Practice. The rules provide that a notary public shall not perform a notarial act outside his regular place of work or business. A cockpit is clearly not a notary public‘s regular place of business. Atty,.Sabungero‘s notarization of the affidavit is not valid. Furthermore, the facts in the case at bar is not one of the exceptional occasions or situations where a notarial act may be performed outside the notary public‘s office and territorial jurisdiction. (Section 2, Rule IV of the 2004 Rules on Notarial Practice) VII Atty. Manuel is counsel for the defendant in a civil case pending before the RTC. After receiving the plaintiff’s Pre-Trial Brief containing the list of witnesses, Atty. Manuel interviewed some of the witnesses for the plaintiff without the consent of plaintiff’s counsel. a. Did Atty. Manuel violate any ethical standard for lawyers? Explain. (3%) NO. Statutory law provides that a lawyer may interview a prospective witness for the opposing side in any civil or criminal case without the consent of the opposing counsel or party. This is supported by Canon 39 of the Canons of Professional Ethics b. Will your answer be the same if it was the plaintiff who was interviewed by Atty. Manuel without the consent of plaintiff’s counsel? Explain. (2%) YES. A witness is distinct and different from the adverse party. The rule earlier enunciated does not include permission to interview the adverse party without the consent of his counsel. This is supported by Canon 9 of the Canons of Professional Ethics. VIII

Court of Appeals (CA) Justice Juris was administratively charged with gross ignorance of the law for having issued an order "temporarily enjoining" the implementation of a writ of execution, and for having issued another order for the parties to "maintain the status quo" in the same case. Both orders are obviously without any legal basis and violate CA rules. In his defense, Justice Juris claims that the challenged orders were collegial acts of the CA Division to which he belonged. Thus, he posits that the charge should not be filed against him alone, but should include the two other CA justices in the Division. Is the contention of Justice Juris tenable? Explain. (3%) NO. The contention of Justice Juris is untenable. Case law has it that while actions of a case pending in the CA are actions of that court as a collegial body, the 2002 Internal Rules of the Court of Appeals provides that it is the ponente who initiates the actions on said motions, papers and pleadings. Hence, there can be no action on a motion, paper or any other incident except upon prior instruction of the ponente. He has the primary responsibility of ensuring that the pending incidents in a case assigned to him are properly and promptly acted on. (Orocio v. Roxas, A.M. Nos. 07-115-CA-J and CA-0846-J, 19 August 2008) IX Alexander Sison, resident of 111 Libertad St., Sampaloc, Manila, engages your services as lawyer. He tells you that a certain Mr. Juan Jamero of 222 Juan Luna St., Tondo, Manila, owes him P1,000,000.00; that the debt is long overdue; and that, despite repeated demands, Jamero has failed to comply with his obligation. He also shows you a promissory note, executed on January 3, 2008, wherein Jamero promises to pay the amount of P1,000,000.00, with 12% interest per annum, within one (1) year from date of note. Sison agrees to pay you attorney’s fees in the amount of P75,000.00, and a fee of P3,000.00 for every appearance in court. As Sison’s lawyer, prepare the complaint that you will file in court against Juan Jamero. (10%) X Given the same facts in No. IX above, assume that summons had been served on Jamero, but no responsive pleading was filed within the reglementary period. Prepare a motion to declare Jamero in default. (4%) PART II XI TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

a. The duty of a lawyer to his client is more paramount than his duty to the Court. b. It is ethical for a lawyer to advise his client to enter a plea of guilty in a criminal case if the lawyer is personally convinced that he cannot win the case for his client. c. There is no presumption of innocence or improbability of wrongdoing in an attorney’s favor when he deals with his client concurrently as lawyer and as businessman. d. The satisfaction of a judgment debt does not, by itself, bar or extinguish the attorney’s liens, except when there has been a waiver by the lawyer, as shown by his conduct or his passive omission. e. A companion or employee of the judge who lives in the judge’s household is included in the definition of the "judge’s family." XII Write the complete text of the attorney’s oath. (5%) XIII Atty. Hyde, a bachelor, practices law in the Philippines. On long weekends, he dates beautiful actresses in Hong Kong. Kristine, a 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. 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. Rule on the validity of Atty. Hyde’s defenses. (5%) The first defense does not lie because the legal personality and interest of Kristine to initiate the complaint is not material to the disbarment case. Disbarment proceedings are sui generis, and are not considered as civil actions. Hence, a real party-in-interest, which is required in civil actions, is not required in disbarment cases. Public interest is the primary objective of disbarment cases and not merely private interest.

Atty. Hyde's defense that his private life has nothing to do with his practice of law is not meritorious. The CPR specifically provides that lawyers should not engage in conduct that adversely reflects his fitness to practice law, nor behave in a scandalous

manner to discredit the legal profession, whether privateor public. Thus, there is a ground for sanctions ions or even his disbarment. XIV 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. (3%) YES. Atty. Romanito is administratively liable. The CPR provides that a lawyer shall keep the funds of clients separate from his own, nor shall a lawyer lend money to a client except in the interest of justice. In this case, Atty. Romanito paid the creditors of Marlyn, thereby indirectly lending money to his client and effectively merges the funds of the client with his own, in violation of the CPR. Furthermore, when he appropriated the properties by registering the mortgaged lands in his name it is an act of taking advantage of his client and violates a lawyer‘s duty of fidelity to his clients.

XV Atty. Wilmar represented Beatriz in a partition case among heirs, and won. When Wilmar demanded payment of attorney’s fees, Beatriz refused to pay. Wilmar sued Beatriz for the unpaid attorney’s fees and obtained a favorable judgment. Thereafter, Beatriz filed an administrative complaint against Wilmar claiming that he lied when he stated in his claim for attorney’s fees that the subject of the partition case involved the entire estate of the deceased when, in fact, it covered only 50% thereof. Wilmar set up the defenses that (1) Beatriz filed the complaint only to delay the execution of the judgment ordering her to pay attorney’s fees and (2) Beatriz engaged in forumshopping. Are the defenses of Atty. Wilmar tenable? Explain. (4%) YES. The defenses of Atty. Wilmar are tenable since Atty. Wilmar had already obtained a favorable judgment both doe his clients case as well as his demand for payment of attorney‘s fees due him. Under the circumstances where services has already been rendered, and his demand passed upon by a court, the subsequent administrative complaint can be gleaned as a delaying tactic on the part this time of the client.

NO. There is strictly no forum shopping. Forum shopping is the result when there is an adverse opinion in one forum, and a party seeks a favorable decision (other than by appeal or certiorari) in another forum. Here Beatriz, instead of filing an appeal or a certiorari in a higher court to contest the award for legal fees, chose to file an administrative complaint based on the ground of dishonesty which is not exactly the identical with the issue raised in the demand for legal fees. Otherwise put, the issues pertaining to the demand for legal fees have been rendered and are due for execution, The issues Beatriz is raising, whether meritorious or otherwise, do not involve the same causes of action. Rather, it pertains to an aspect of the facts of the case which should have been agreed upon at the onset. XVI Atty. Simeon persuaded Armando, Benigno and Ciriaco to invest in a business venture that later went bankrupt. Armando, Benigno and Ciriaco charged Atty. Simeon with estafa. Simultaneously, they filed an administrative complaint against the lawyer with the Supreme Court. a. If Simeon is convicted of estafa, will he be disbarred? Explain. (3%) YES, if Atty. Simeon is convicted of estafa, he will be disbarred because estafa is a crime involving moral turpitude. Under the law, conviction of a crime involving moral turpitude is a ground for disbarment. (Section 27, Rule 138) b. If Simeon is acquitted of the estafa charge, will the disbarment complaint be dismissed? Explain. (3%) It depends, if the acquittal is based on the ground that no crime was committed, then the administrative case may be dismissed. But if the acquittal is based merely on reasonable doubt, then the disbarment case may still continue. The purpose of the disbarment case is to determine whether a lawyer still deserves to remain a member of the bar. XVII 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 [a] his client is guilty and [b] his client will commit perjury on the witness stand? Explain. (4%) a) Atty. Romualdo cannot and is not obliged to reveal to the judge that Vicente is guilty of murder. Under the rule on privileged communication, admission of a crime already committed is deemed privileged. Attorney-Client privilege attaches and he is bound under such rule to keep secret what his client, Vicente, told him in confidence. b) Under

the circumstances that his client expressly told him that he will commit perjury when he takes the witness stand, such communication is no longer privileged since it pertains to a crime yet to be commited. What Atty. Romualdo must do first is discourage his client to commit perjury, since a lawyer must impress upon his client to obey the law. If he cannot convince him, then the CPR directs him and gives him a ground to discontinue his services. (Rule 15.07, CPR) Prudence and practice show that it may not be in his best interest to be the one to reveal to the judge that Vicente will commit perjury on the witness stand since this revelation lies outside the Attorney-Client privilege. XVIII On a Saturday, Atty. Paterno filed a petition for a writ of amparo with the Court of Appeals (CA). Impelled by the urgency for the issuance of the writ, Atty. Paterno persuaded his friend, CA Justice Johnny de la Cruz, to issue the writ of amparo and the notice of hearing without the signature of the two other Justices-members of the CA division. Are Atty. Paterno and Justice de la Cruz guilty of unethical conduct? Explain. (4%) SUGGESTED ANSWER: YES. Atty. Paterno violated the CPR which provides that a lawyer shall rely on the merits of his case and refrain from any impropriety which influence or gives the appearance of influencing the court. Atty. Paterno‘s act of using his friendship with Justice dela Cruz in order to acquire the writ of amparo without a hearing is not in accordance with this rule. Atty. Paterno should have let the process continue on its own without using connections or influence. YES. Justice dela Cruz violated the NCJC which provides that judges shall, in their personal relations with individual members of the legal profession, avoid situations which might reasonably give rise to the suspicion or appearance of favoritism or partiality. By issuing the writ of amparo alone, in violation of the law, he has violated this rule.