Legal and Judicial Ethics Mock Bar Q A

JURISTS BAR REVIEW CENTER Suggested Answers in Legal and Judicial Ethics Mock Bar 1. ABC corporation hired your services to pursue a collection case against DEF Enterprises. Apparently, DEF has failed to pay its accounts payables to DEF for the past 6 months, amounting to P 500,000.00. The amount was supposed to be the payment due for the computer units delivered by ABC to DEF. ABC has written DEF 4 separate demand letters. Despite such written demand, DEF continues to stubbornly refuse to pay the amount it owed. Draft the complete pleading required by your client to pursue its claims against DEF. (10 points) ANSWER:

Complaint for sum of money with claim for damages.

2. ER was among those who passed the 2000 Bar Examinations. On May 21, 2000, one day before the scheduled mass oath-taking of the successful bar examinees, DMA filed against the respondent a Petition for Denial of Admission to the Bar. Complainant charged respondent with unauthorized practice of law, grave misconduct, violation of law and grave misrepresentation. The SC allowed the respondent to take his oath as member of the Bar during the oath taking. However, the SC ruled that respondent could not sign the Roll of Attorneys pending the resolution of the charge against him. Complainant alleges that respondent, while not yet a lawyer, appeared as counsel for a candidate in the May 2001 elections before the Municipal Board of Election Canvassers of Masbate. It was further alleged that ER filed with the MBEC a pleading entitled “Formal Objection to the Inclusion in the Canvassing of Votes in Some Precincts for the Office of the Vice Mayor.” In the said pleading ER represented himself as counsel for the Vice Mayor and thereafter signed his name as such. Can ER be held administratively liable for unauthorized practice of law? What is the liability of someone who has been determined to have been engaged in the unauthorized practice of law? (10 points) ANSWER: YES. The acts of ER which formed the basis of the complaint filed against him were committed ever before the respondent took his oath of office. Clearly, respondent engaged in the practice of law without being a member of the Bar. To engage in the practice of law is to perform acts which are usually performed by members of the legal profession. Generally, to practice law is to render any kind of service which requires the use of legal knowledge or skill. The right to practice law is not a natural or a constitutional right but a privilege. It is limited to persons of good moral character with special qualifications duly ascertained and certified. A bar candidate does not acquire the right to practice law simply by passing the bar examinations. Having held himself as counsel knowing that he had no authority to practice law, respondent has shown moral unfitness to be a member of the Philippine Bar. The practice of law is a privilege that can be withheld from one who has passed the Suggested Answers in Legal and Judicial Ethics Mock Bar for Jurists Bar Review Center by Prof. Erickson Balmes 1

bar examinations, if the person seeking admission had practiced law without a license. (Donna Marie S. Aguirre v. Edwin Rana, B.M. 1036, June 10, 2003, Carpio.) 3. Atty. Cyril was the lawyer of Ah Moy, a Taiwanese investor, in a case for estafa filed against Ho Bah, an investor from East Asia. In the said case, Ho Bah was represented by Atty. Silver. Since Ho Bah failed to appear during the preliminary investigation of the case nor did he submit his counter affidavit, the prosecutor handling the case filed a criminal complaint for estafa before the Manila RTC. On April 8, 1999, the Manila RTC issued a Warrant of Arrest against Ho Bah. Thereafter, Atty. Silver filed an urgent motion to Quash the Warrant of Arrest. He also filed with the RTC of Zamboanga City, the place of Ah Moy’s and Ho Bah’s mothballed joint venture, a civil complaint for the collection of a sum of money and damages as well as the dissolution of a business venture against Atty. Cyril, Ah Moy and the prosecutor. When confronted by Atty. Cyril, Atty. Silver explained that it was his client who had decided to institute the civil action against him. Atty. Silver claimed that he would suggest to his client to drop the civil case, if complainant would move for the dismissal of the estafa case. Comment on the irregularity, if any, of the actions of Atty. Silver. (10 points) ANSWER: Atty. Silver failed to live up to Canon 8 of the Code of Professional Responsibility. The said canon provides that a “lawyer shall conduct himself with courtesy, fairness and candor towards his professional colleagues and shall avoid harassing tactics against opposing counsel”. Respondent’s actions do not measure up to Canon 8 as it appears that he took the estafa case as a personal affront and used the civil case as a tool to return the inconvenience suffered by his client. Atty. Silver should have used the proper procedural and administrative remedies if had believed that the opposing lawyer and the prosecutor in the criminal case had conspired to act illegally. Lawyers should treat their opposing counsels and other lawyers with courtesy, dignity and civility. Mutual bickering, unjustified recriminations and offensive behavior among lawyers not only detract from the dignity of the legal profession, but also constitute highly unprofessional conduct subject to disciplinary action. Any undue ill feelings between clients should not influence counsels in their conduct and demeanor toward each other. Respondent was suspended from the practice of law for two years. (Atty. Ramon Reyes v. Atty. Victoriano T. Chiong, A.C. No. 5148, July 1, 2003, Panganiban). 4. As the counsel for EP, Atty. RA asked for leave to file demurrer to evidence which was granted by the trial court. All the while, EP thought that the demurrer was filed and the case was dismissed. It was only years later that EP learned that Atty. RA failed to file any demurrer. When asked to comment on the complaint filed by EP against him, Atty. RA claimed that two days after the RTC granted the manifestation of the defense to file motion for leave to file demurrer to evidence, he had finished the draft of the motion and the accompanying pleading which he stored in a magnetic computer diskette, intended for editing prior to its submission in court. A few days before the deadline, herein respondent tried to retrieve the draft from the diskette, but said drafts Suggested Answers in Legal and Judicial Ethics Mock Bar for Jurists Bar Review Center by Prof. Erickson Balmes 2

where nowhere to be found despite efforts to retrieve them. What are Atty. RA’s ethical transgressions if any? Is his defense valid? (10 points) ANSWER: It is plain from the records that respondent lawyer failed to submit a demurrer to evidence for which he had earlier asked permission from the trial court and which his client was relying on. More than that, Atty. RA had failed to contact his client and apprise him about the developments of the case leaving complainant completely surprised and without any protection when years later, he received summons from the trial court asking him to present evidence in his defense and, not long after, the trial court issued a warrant for his arrest. While a lawyer may decline a person to become his client for valid reasons, once he agrees to take up the cause of the client, he begins to owe fidelity to such cause and must always be mindful of the trust and confidence reposed in him. - NO, the defense is not valid. Atty. RA’s “erased file” defense was viewed as an outrageous and a contumacious act that only makes a mockery of the Court. Respondent would have the Court believe a very preposterous story of how his draft disappeared, all the time avoiding the simple fact that he failed to submit the necessary pleading before the trial court. The Court will never countenance such a conduct. (Edgar Perea v. Atty. Ruben Almadro, A.C. 5246, March 20, 2003, Austria-Martinez). 5. Can a notary public act at the same time as the witness in the document to be notarized by him?Why Not? Why? (10 points). ANSWER: Yes if the document is not a will and if the notarial act was committed before the August 2004 Rules on Notarial Practice, after the effectivity of the 2004 Rules on Notarial Practice, the notary public cannot witness a document to be notarized by him. 6. A complaint was filed against Judge Badong. He was charged with grave abuse of authority, political harassment, evident partiality, ignorance of the law and election offenses. The complainanst averred that on May 5, 2001, a Saturday, they were criminally charged in the court of respondent judge in the Information which in part reads: “x x x the accused did then and there, willfully, unlawfully and feloniously falsify the Official Ballots for the May 11, 1998 Local and National Elections . . . by switching the official ballots cast in favor of the complainant with faked ballots and simulated ballots that later nullified the valid ballots cast in favor of the complainant x x x . Respondent judge went to the MCTC Camarines Sur purposely to receive, admit and act on a Complaint. The Complaint was erroneously designated as “Falsification of Public Documents” allegedly in violation of Article 172 in relation to Article 171 of the RPC, although nothing in said penal provisions appear to have been violated. Suggested Answers in Legal and Judicial Ethics Mock Bar for Jurists Bar Review Center by Prof. Erickson Balmes 3

Was the respondent judge justified in taking cognizance of the Complaint considering that the body of the same showed that it is election related? (10 points) ANSWER: NO. Under the Comelec Rules of Procedure, it is the COMELEC that has the exclusive authority to prosecute offenses found to be election related. Notwithstanding that complainants called the attention of the respondent judge by filing a Motion for Inhibition and referred the case to the Provincial Prosecutor’s Office, the respondent issued the warrants of arrest. The issuance was made despite knowledge that under the offense charged, no probable cause exists. Respondent is ignorant of the law because he assumed jurisdiction over the case which is election-related. As a rule, it is the allegations contained in the body of the Complaint that controls not the designation of the offense. Judges are called upon to exhibit more than a cursory acquaintance with the statutes and procedural laws. Anything less would constitute gross ignorance of the law. (Evelio Pena et al., v. Judge Orlando A. Martizano, etc. A.M. No. MTJ-02-1451, May 30, 2003). 7. SPO4 Chester Casares (“CC”) arrested AL on March 6, 1999, a Saturday, pursuant to a warrant of arrest issued by the MTCC of Ormoc in Criminal Case 5678 for violation of BP 22. On the same day, Judge AA of the MCTC of Leyte released the accused on the basis of a cash bond posted only on March 8, 1999. In addition, Judge AA issued on March 6, 1999 another order of release on the basis of a property bond which was subscribed and sworn to before him by the bondsman on March 10, 1999. The said date was, however, changed to March 6. In essence, Judge AA issued the release orders before the posting of the bond, whether cash or property, and thus released prematurely released AL who turned out to be a relative of Judge AA. Consequently, SPO4 CC filed an administrative complaint against Judge AA who, in his defense, asserted that the cash bond was actually posted on March 6, but since the order of release was prepared by his clerk of court who thought that he would only be available on March 7, he dated the release order on March 7. Judge AA further alleged that the cash bond was actually posted on March 6 but his Clerk of Court altered the date of the official receipt covering the said cash bond from March 6 to March 8 so that the date would not reflect that it was posted on a Saturday, a non working day. Can Judge AA be held liable for his actuations? Why? Why Not? (10 points) ANSWER: YES for gross ignorance of the law, a judge must exhibit more than a cursory knowledge of the law, he must be familiar with basic legal precepts, the more basic the law violated the greater the ignorance manifested. 8. Judge MC was the subject of an administrative complaint filed his own former clerk-stenographer for signing marriage contracts without the required marriage license. Judge MC performed this act in at least three (3) occasions. When asked to comment on the charges filed against him, the respondent judge asserted that he desisted from performing marriages upon learning of the contracting Suggested Answers in Legal and Judicial Ethics Mock Bar for Jurists Bar Review Center by Prof. Erickson Balmes 4

parties failure to produce the requisite marriage license. Can Judge MC be held administratively liable? ANSWER: YES. Respondent’s admission of signing the marriage contracts before the issuance of the requisite marriage licenses, although not necessarily fraudulent, amounts to gross negligence, if not gross irresponsibility, in performing his official functions. Respondent’s act of gratuitously signing marriage contracts in utter disregard of its legal effects, had been remiss in his duty of exercising due care and circumspection in the performance of his official duties. In so doing, he exhibited a cavalier proclivity of ignoring the norms of diligence, efficiency, competence and dedication of a man donning a judicial robe. (Pedrita Harayo v. Judge Mamerto Coliflores, AM No. MTJ-92-710, June 19, 2003, Bellosillo, J). 9. While Atty. MR was awaiting for his case to be called, Judge RV approached the representative of Atty. MR’s client and told him “Popoy, tell your boss that his lawyer is just bleeding him dry!”. The remark was made within hearing distance of other litigants awaiting their turn inside the courtroom. In another occasion, Judge RV told Atty. MR, “Panero, tell you client, he cannot outlive this case!” Will a complaint for conduct unbecoming of a member of the judiciary prosper against Judge RV under the facts obtaining in the instant case? (10 points) ANSWER: Yes, because a judge is expected not only to manifest the cold neutrality of an impartial judge, but his integrity in words and in deeds must be above reproach. The conduct of the judge here is clearly way below the minimum level of conduct expected of him. 10. JP is the defendant in a case for annulment pending before the sala of the Judge RB. At the time that Judge RB took over , the said case has already been submitted for decision. JP avers that sometime in November 1998, Judge RB came to see him at Manila Hotel’s Lobby Lounge, where complainant was then employed as a pianist. Judge RB told JP that he wanted the case settled. The judge then suggested that JP should agree to a 1/3 : 2/3 sharing of the conjugal assets between and his two children by his estranged wife. JP refused Their conversation ended with Judge RB assuring JP that he would inhibit himself from the case if complainant would file a motion to inhibit. Subsequently, JP filed a motion to inhibit to inhibit Judge RB. The same was denied for “being untenable as the apprehensions of movant are unfounded and do not constitute legal grounds for inhibition”. When his Motion for Reconsideration of the denial was also denied, JP filed an administrative complaint against Judge RB. Under the facts obtaining, will the case against Judge RB prosper?(10 points) ANSWER: Yes, because a judge is expected not only to manifest the cold neutrality of an impartial judge, but his integrity in words and in deeds must be above reproach. The conduct of the judge here is clearly way below the minimum level of conduct expected of him. His conduct clearly reveals a bias against JP and in favor of jp’s wife.

Suggested Answers in Legal and Judicial Ethics Mock Bar for Jurists Bar Review Center by Prof. Erickson Balmes 5

11. Give your comment on the propriety of the acts of the municipal judge who prepared and notarized the following documents: (5 points each,20% ) a. A deed of absolute sale executed by two of his friends; i. This will only be allowed if there is no notary public commissioned in the territorial jurisdiction of the municipal judge. Provided: 1. The money paid for the notarial services goes directly to the municipality, duly receipted by the municipal treasurer 2. There must be a certification in the document notarized that there is no notary public commissioned within the territorial jurisdiction of the municipal judge. b. An extrajudicial settlement of estate of his cousins; i. This will only be allowed if there is no notary public commissioned in the territorial jurisdiction of the municipal judge. Provided: 1. The money paid for the notarial services goes directly to the municipality, duly receipted by the municipal treasurer; 2. There must be a certification in the document notarized that there is no notary public commissioned within the territorial jurisdiction of the municipal judge. c. A memorandum of agreement between a building contractor and a neighboring municipality; i. Could be performed by the judge ex officio, as part of his functions provided there is no notary public commissioned within his territorial jurisdiction. d. A memorandum of agreement between another private contractor and the municipal where he sits as judge. i. Could be performed by the judge ex officio, as part of his functions provided there is no notary public commissioned within his territorial jurisdiction 12. Define Gross Misconduct. How is it classified as an administrative offense under the Rules of Court? (10%). ANSWER: Grave misconduct is the transgression of some established or definite rule of action, more particularly, unlawful behavior or gross ignorance. - Under section 8(3), Rule 140 of the Revised Rules of Court, as amended, gross misconduct is classified as a serious administrative offense punishable by any of the sanctions enumerated in Section 11 of the same Rule i.e. a. dismissal from the service, forfeiture of all or part of the benefits as the Court may determine and disqualification from reinstatement or appointment to any Suggested Answers in Legal and Judicial Ethics Mock Bar for Jurists Bar Review Center by Prof. Erickson Balmes 6

public office, including government owned or controlled corporation. Provided, however, that the forfeiture of benefits shall in no case include accrued leave benefits; b. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; c. A fine of more than P 20,000.00 but not exceeding P 40,000.00 (John Siy Lim v. Judge Antonio Fineza, A.M. RTJ-02-1705, May 5, 2003, Sandoval Gutierrez). 13. Upon being replaced by Justice C, Atty. B, the former counsel of the parents of the victims of the OZNE 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. (10%). ANSWER: Atty. B. is not correct, while his right to a retaining lien is recognized under the law, such right does not allow him to retain all the documents of his clients in his possession. He is duty bound to cooperate and assist the counsel who replaced him by forwarding to the latter documents and records needed to familiarize himself with the facts of the case. The right of Atty. B to his unpaid attorney’s fees can protected by other means such as the recording of a charging lien. 14. In a civil case, the defendant discovered that the counsel for the plaintiff used to be a member of the Judicial and Bar Council during whose time the Judge presiding over the case was appointed and confirmed. He filed a 'Motion to Inhibit the Judge' on the ground that the latter's ability to act independently and judiciously had been compromised and seriously impaired because of his 'utang na loob" to the plaintiff’s counsel.If you were the Judge, how would you rule on the Motion? (10%) ANSWER: The motion should be denied, the Judicial and Bar Council works as a committee and the vote of a single person does not make an applicant to the judiciary a judge. Further the appointing authority is not vested with the JBC but with the Office of the President. 15. State the Sub-Judice Rule. Explain the rationale behind our observance in this jurisdiction of this rule? (5%)

Suggested Answers in Legal and Judicial Ethics Mock Bar for Jurists Bar Review Center by Prof. Erickson Balmes 7

ANSWER: Judges and lawyers are prohibited from making comments in public regarding a case deemed submitted for resolution to avoid a trial by publicity. 16. Enumerate at least 3 exemptions under Bar Matter 850 (5%) ANSWER: The following are exempted from the MCLE requirement: a. The Executive 1. The President, Vice-President of the Philippines, and the Secretaries and Undersecretaries of the Executive Departments of the Philippine Government; 2. The Chief State Counsel, Chief State Prosecutor, and Assistant Secretaries of the Department of Justice; 3. The Solicitor General and the Assistant Solicitors General; 4. The Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel; 5. Heads of government agencies exercising quasi-judicial functions; b. The Legislative Senators and Members of the House of Representatives; c. The Judiciary The Chief Justice and Associate Justices of the Supreme Court, incumbent and retired members of the Judiciary, incumbent members of the Judicial and Bar Council, and incumbent court lawyers covered by the Philippine Judicial Academy program of continuing judicial education; d. The Constitutional Bodies 1. The Chairmen and Members of the Constitutional Commissions; 2. The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsman and the Special Prosecutor of the Office of the Ombudsman. e. Law Schools/Academe 1. Incumbent deans, bar reviewers and professors of law who have had teaching experience for at least ten (10) years in accredited law schools; 2. The Chancellor, Vice-Chancellor and members of the Corps of Professors and Professional Lecturers of the Philippine Judicial Academy; f. Local Government Governors and mayors; g. Non-Practicing Lawyers 1. Lawyers who are not in practice, whether private or public; and 2. Those who have retired from law practice with the approval of the IBP Board of Governors. 17. May a judge be disciplined by the Supreme Court based solely on a complaint filed by the complainant and the answer of respondent Judge? If so, under what circumstances? What is the rationale behind this power of the Supreme Court? (10%) ANSWER: Yes, under the principle of res ipsa loquitor, things speak for itself, the power of the Supreme Court to discipline judges is all encompassing and absolute. Suggested Answers in Legal and Judicial Ethics Mock Bar for Jurists Bar Review Center by Prof. Erickson Balmes 8

18. Atty. Palomar lost a case in the RTC and then in the Court of Appeals. He appealed the case to the Supreme Court. His appeal was subsequently denied in a minute resolution for lack of merit. His motion for reconsideration was similarly denied. When the judgement became final and executory, Atty. Palomar publicly criticized the Supreme Court for having rendered what he calls an unjust judgment, even as he ridiculed the members of the Supreme Court by direct insult and vituperative innuendoes. Asked to explain why he should not be punished for his clearly contumacious statements, Atty. Palomar set up the defense that his statements were uttered after the litigation had been finally terminated and that he is entitled to criticize judicial actuations. Rule on the contention of Atty. Palomar. (10%) ANSWER: Such contention deserves no merit. While lawyer have the right to criticize the decisions of the court, such criticism must always be couched in respectful language since lawyers are officers of the court. 19. Discuss the propriety of a lawyer filing court litigations against his client over his fees. (10%) ANSWER: Such a case must only be resorted to as a remedy of last resort. A lawyer must avoid controversies with his client regarding unpaid attorney’s fees since he can be perceived as nothing more than a mercenary who is only after the payment of his unpaid attorney’s fees. Lawyers have a duty to maintain the respect owing and the nobility of their profession. 20. Paguio and Alonte, both lawyers, and Gana, a certified public accountant, in order to enhance their respective practice, desire to pool their resources together and establish a partnership for the combined purpose of law and accounting practice under the firm name, Gana, Alonte and Paguio or GAP Law etc. and Associatess. Is the proposed partnership ethical ? (10%) ANSWER: This is not ethical, a lawyer is prohibited from entering into a partnership for the practice of a profession with non lawyers.

Suggested Answers in Legal and Judicial Ethics Mock Bar for Jurists Bar Review Center by Prof. Erickson Balmes 9