Legal Ethics.. (1)

PROBLEM AREAS IN LEGAL ETHICS Professor: Atty. Elba S. Cruz

Class: Friday 7:30-9:30

BAR EXAMINATION SUGGESTED ANSWERS FOR 2010-2006 (INCLUDING REVIEWER FOR FINALS)

OUTLINE:

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2010 BAR EXAM-------------------------------------------------1 2009 BAR EXAM-------------------------------------------------6 2008 BAR EXAM------------------------------------------------10 2007 BAR EXAM------------------------------------------------15 2006 BAR EXAM------------------------------------------------19 MIDTERM EXAM ANSWERS--------------------------------25 CODE OF PROFESSIONAL RESPONSIBILITY--------28 RULES OF COURT (RE: LEGAL ETHICS)---------------36

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

2010 LEGAL ETHICS BAR EXAM 1. 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. Atty. X files an administrative complaint against Atty. Y for using abusive language. Atty. Y posits that as lawyer for the down-trodden 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 Justices or Judges. Is Atty. Y administratively liable under the Code of Professional Responsibility? Explain. (3%)

SUGGESTED ANSWER: YES. Case law has it that it is unavailing to presume that labor practitioners are entitled to some latitude of righteous anger. Likewise, the Court is not deterred from exercising supervisory authority over lawyers who misbehave or fail to live up to that standard expected of them as members of the Bar. NLRC exercises quasi-judicial functions and should be accorded with the same respect and demeanor due to courts of law. CANON 8 of the CPR states that a lawyer shall conduct himself with COURTESY, FAIRNESS AND CANDOR towards his professional colleagues. Relative thereto, Rule 8.01 profers that a lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper. In a bid to maintain respect due to courts and to judicial officer, Rule 11.03 again states that A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the courts.

In addition, Rule 11.04 specifically states that a lawyer shall not attribute to a judge motives not supported by the record. Obiter: Canon 7 .states that lawyers should at all times uphold the integrity and dignity of the legal profession and continues in Rule 7.03 to state that lawyers should not behave in a scandalous manner to the discredit of the legal profession. 2 . Atty. XX rented a house of his cousin JJ on a monthto month basis. He left for a 6-month study in Japan without paying his rentals and electric bills while he was away despite JJ‘s repeated demands. 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 of 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. A. Is Atty. XX‘s contention in order? Explain. (3%)

SUGGESTED ANSWER: NO. The Supreme Court ruled that when a lawyer incurs debts, he has the moral duty and legal responsibility to settle them when they become due. Lawyers must at all times faithfully perform their duties to the 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 vs. Atty. Eva Pata- Moya, 556 SCRA 1 2008.) B. Cite two (2) specific Rules in the Code of Professional Responsibility, violation of which subjects a lawyer to disciplinary action by the Supreme Court although the acts complained of are purely personal or private activities that do not involve the practice of law. (2%)

SUGGESTED ANSWER: Rule 7.03 - 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.

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

of the bar in good standing. Rule 7.01 - 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. 3. When is professional incompetence a ground for disbarment under the Rules of Court? Explain. (3%)

SUGGESTED ANSWER: Professional incompetence of a lawyer may be a ground for disbarment when his competence is so total, gross and serious that he cannot be trusted with the duty to protect the rights of clients. Gross incompetence in handling a case constitutes malpractice or gross misconduct in office which are grounds for suspension or disbarment under Section 27, Rule 138 of the Rules of Court. Obiter: CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE. Rules 18.01 - A lawyer shall not undertake a legal service which he knows or should know that he is not qualified to render. However, he may render such service if, with the consent of his client, he can obtain as collaborating counsel a lawyer who is competent on the matter. 4. 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 violate the Code of Professional Responsibility? Why? (3%)

SUGGESTED ANSWER: YES. The CPR clearly provides that: A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY, ASSIST IN THE UNAUTHORIZED PRACTICE OF LAW. (Canon 9) Clearly, the husband and friend are non-lawyers who cannot be partners in a law firm otherwise it constitutes unauthorized practice of law. Similarly, Rule 9.01 states- A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member

5. Atty. Candido commented in a newspaper that the decision of the Court of Appeals was influenced by a powerful relative of the prevailing party. The appellate court found him guilty of indirect contempt. Does this involve moral turpitude? Explain. (3%)

SUGGESTED ANSWER: NO. Moral turpitude has been defined as everything which is done contrary to justice, modesty, or good morals, an act of baseness, vileness or depravity in the private and social duties which a man owes his fellowmen, or to society in general, contrary to justice, modesty or good ,morals. Atty. Candido act of attributing corruption in the court is contemptuous under the CPR but does not constitute moral turpitude. Obiter: Moral turpitude is a moral delinquency that affects the fitness of a member of the bar to continue as such and includes conduct that outrages the generally accepted moral standards of co`mmunity. (Cordova v Cordova) 6. For services to be rendered by Atty. Delmonico as counsel for Wag Yu in a case involving 5,000 square meters (sq.m.) of land, the two agreed on a success fee of P50,000 plus 500 sq.m. of the land. The trial court rendered judgment in favor of Wag Yu which became final and executory. After receiving P50,000, Atty. Delmonico demanded the transfer to him of the promised 500 sq.m. Instead of complying, Wag Yu filed an administrative complaint charging Atty. Delmonico with violation of the Code of Professional Responsibility and Article 1491(5) of the Civil Code for demanding the delivery of a portion of the land subject of litigation. Is Atty. Delmonico liable under the Code of Professional Responsibility and the Civil Code? Explain. (5%)

SUGGESTED ANSWER: NO. Rule 16.03 - A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client.

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court. Here the land is no longer the subject of litigation because the case was already final and executory. 7. .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. (3%)

SUGGESTED ANSWER: NO. In pari delicto will not exempt the lawyer. Case law states that in a disbarment proceeding, it is immaterial that the complainant is in pari delicto because it is not a proceeding to grant relief to the complainant, but one to purge the law profession of unworthy members, to protect the public and the courts. (Mortel v Aspiras). Obiter: Rule 1.01 states that: A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. Immoral conduct is that which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community. (Arciga v. Maniwang) 8. After passing the Philippine Bar in 1986, Atty. 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. 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. A. May the Supreme Court act upon the complaint filed by an anonymous person? Why or why not? (3%)

SUGGESTED ANSWER: NO. An unverified complaint cannot be given due course since the Rule requires that the complaint must be sworn to by the complainant. (Evangelista v. Baes)

As a rule, anonymous complaints are not actionable except when the charges can be fully borne by public records of indubitable integrity, thus needing no corroboration by evidence to be offered by the complainant whose identity and integrity could be material and is of public interest. (In re Echiverri) Obiter: A judge cannot be found guilty on heresay affidavit/ (Negado v. Autajay). ALTERNATIVE ANSWER: YES. Rule 139 –B states that Proceedings for the disbarment, suspension, or discipline of attorneys may be taken by the Supreme Court, motu propio or by the IBP upon the verified complaint of any person. The case at bar shows a complaint by an anonymous person which the Supreme Court, may or may not take cognizance of. Should the SC act in the affirmative, it would normally direct the IBP to investigate, verify the allegations and thereafter file the verified complaint, subject to the right of the attorney to be heard before any removal or suspension under Rule 138. B. Is respondent entitled to resume the practice of law? Explain. (5%)

SUGGESTED ANSWER: YES. Atty. Richards, being a former member of the bar in good standing can resume the practice of law in the Philippines, provided he observes the procedure in reassuming the practice of law. 9. 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? (3%)

SUGGESTED ANSWER: NO. The Judge is not justified in not inhibiting himself since Rebecca is his stepdaughter and is related to him by one degree of affinity .. The Code of Judicial Conduct expressly provides in Rule 3:12 that a -- A judge should take no part in a proceeding where the judge‘s impartiality might reasonably be questioned. These cases include

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

among others, proceedings where:(d) the judge is related by consanguinity or affinity to a party litigant within the sixth degree or to counsel within the fourth degree. 10. Reacting to newspaper articles and verbal complaints on alleged rampant sale of Temporary Restraining Orders by Judge X, the Supreme Court ordered the conduct of a discreet investigation by the Office of the Court Administrator. Judges in the place where Judge X is assigned confirmed the complaints. A. What administrative charge/s may be leveled against Judge X? Explain. (3%)

SUGGESTED ANSWER: Judge X could be charged with Serious Charges punishable under the Rule 140 of the Rules of Court. which specifically include: bribery and dishonesty and violations of the Anti-graft and Corrupt Practices Law (RA 3019) when he made the issuance of TRO‘s for sale In addition, such gross misconduct can also be constitutive of grounds for disbarment under Rule 138 of the Rules of Court. OBITER: If he is guilty of a serious charge, he may be sanctioned with dismissal from service, forfeiture of benefits, disqualification from reinstatement or any public office, suspension and/or a fine. B. What defense/s can Judge X raise in avoidance of any liability? (2%)

SUGGESTED ANSWER: Judge X can raise the defense of denial of due process by questioning the time and manner of notice as well as the lack opportunity to be heard, answer the charges against him and produce witnesses in his behalf and be heard by himself or counsel. He can raise defenses of hearsay evidence, lack of evidence that meets the quantum of evidence required to render him guilty of charges set forth. 11. 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. 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. (3%)

SUGGESTED ANSWER: YES. Atty. Rico is liable for violating Canon 13, CPR- he should refrain from any impropriety which tends to influence or gives the appearance of influencing the court. This is especially true, if Atty. Rico is regularly practicing in the court of the judges. Also, Rule 13.01 states that- A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with judges. In playing golf regularly with judges, familiarity will certainly arise and whether or not they discuss cases is a non-issue. Case law has it, constant company with a lawyer tends to breed intimacy and camaraderie to the point that favors in the future may be asked from the judge which he may find hard to refuse. (Padilla v. Zantua Jr.) B. How about the members of the bench who grace the parties of Rico, are they violating the Code of Judicial Conduct? Explain. (3%)

SUGGESTED ANSWER: YES. Canon 2 enjoins judges to avoid impropriety and the appearance of impropriety in all activities. Canon 1 states that judges should be the embodiment of competence, integrity and independence, of which integrity includes impartiality. Rule 2.03 of Canon 2- A judge shall not allow family, social or other relationships to influence judicial conduct or judgment. The prestige of judicial office shall not be used or lent to advance the private interests of others nor convey the impression that they are in a special position to influence the judge. Case law has it that the actuation of a judge constantly 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 litigants in the impartiality of the judge.

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

12. 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 criminal liability? Explain. (3%)

SUGGESTED ANSWER: YES. Judge L can be said to be administratively liable but not criminally liable.. Rule 5.10 of the Code of Judicial Conduct 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. The rule above does not make kinship an exemption from compliance with the prohibition. 13. Judge X was invited to be a guest speaker during the annual convention of a private organization which was covered by media. Since he was given the liberty to speak on any topic, he discussed the recent decision of the Supreme Court declaring that the President is not, under the Constitution, proscribed from appointing a Chief Justice within two months before the election. In his speech, the judge demurred to the Supreme Court decision and even stressed that the decision is a serious violation of the Constitution. A. Did Judge X incur any administrative liability? Explain. (3%)

SUGGESTED ANSWER: NO. Strictly construed, Judge X will not incur any liability for making such a comment or speech which is an expression of an opinion to a case already decided upon by the SC. What is enjoined to be abstained from is making comments on a pending or impending case: (Rule 3.07, CJC) Furthermore, Canon 4 allows Judges to engage in activities to improve the law, the legal system and the administration of justice. ALTERNATIVE ANSWER. YES. Openly criticizing the decision of the SC, by a member of the bench

does not speak well of the judicial system, much less the administration of justice in relation to the perception and confidence of the people on the people who run the system. Unity and stability within the judiciary is essential to the integrity of the judicial system as a whole. Depending on the extent of the criticism and the language used, he may thus be administratively liable for simple misconduct. A judge should so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary. B. If instead of ventilating his opinion before the private organization, Judge X incorporated it, as an obiter dictum, in one of his decisions, did he incur any administrative liability? Explain. (3%)

SUGGESTED ANSWER: YES. Strictly construed, the loyalty of and faithfulness of the judge to the law vis a vis the Supreme Court with an open and public criticism of the SC decision can constitute simple misconduct which will render him liable for less serious charges under Rule 140. His criticism undermines the authority of the SC and even if bona fide, must still be ventilated, if ever, in the proper forum and proper procedure and not thru the obiter dictum. Obiter: Of more important consideration is the fact that his decision must be based on the law and not his personal opinion. It is hard to imagine how the issue of midnight appointments can he related to the issues in his decided case, and therefore inappropriate and irrelevant under the circumstances. Guidelines in the efficient rendition of judgment or judicial opinion include: if the personal views of the judge contradict the applicable doctrine promulgated by the SC, nonetheless, the judge should decide the case in accordance with the doctrine (Albert v CFI) and not in accordance with his personal views (SC Circular No. 13, 1987). This is to maintain the stability of precedents. However, he is not prohibited from expressing his views if only to invite constructive attention on the matter. 14. Arabella filed a complaint for disbarment against her estranged husband Atty. P on the ground of immorality and use of illegal drugs.

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

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.

SUGGESTED ANSWER: NO. There is no clear showing that the Judge violated any of the provisions of the CJC. There is no prohibition on donating properties, especially if the same is to serve public purpose or welfare.

You are the Investigating Commissioner of the IBP. Bearing in mind that the family is a social institution which the State is duty-bound to preserve, what will be your action on Arabella‘s motion to dismiss the complaint? (3%)

There is no clear showing or evidence that the increase in value of their adjacent property motivated or was made a precondition of the donation. As such, no malice or corrupt intent amounting to misconduct or corruption can be directly imputed to the Judge.

SUGGESTED ANSWER: I WILL ACCEPT THE AFFIDAVIT OF DESISTANCE AND PUT ON HOLD THE ADMINISTRATIVE CHARGES AGAINST ATTY. P In the case at bar, there is no compelling reason to continue with the proceedings since there is clear showing that the parties have fully reconciled and the causes of action on which the complaint was filed no longer exist. The rule admits of exception on 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, on the ground enunciated above.

16. A retired member of the Judiciary is now engaged in private practice. In attending hearings, he uses his car bearing his protocol plate which was issued to him while still in the service. Pass on the ethical aspect of the judge‘s use of the protocol plate. (2%)

SUGGESTED ANSWER: Absent any express prohibition to use the plates by official members of the bench, it is still imprudent , if not unethical for the judge to use of his protocol plate after his retirement since he no longer holds that position. The CPR enjoins respect for law which extend to the society, the legal profession and to the court. Rule 1.01 prohibits lawyers from deceit which in turn involves misrepresentation which can he implied if the plates are used after retirement.

Case law supports the following: withdrawal of the complaint and there is no more evidence that could substantiate the charge, then it is dismissible (In Re Tipon) and that lack of interest to prosecute may justify the dismissal of the case. (Worthington v Fernandez; Luyon v. Atencia) 15. On the proposal of Judge G, which was accepted, he and his family donated a lot to the city of Gyoza on the condition that a public transport terminal would be constructed thereon. The donation was accepted and the condition was complied with. The family-owned tracts of land in the vicinity of the donated lot suddenly appreciated in value and became commercially viable as in fact a restaurant and a hotel were soon after built. Did the Judge commit any violation of the Code of Judicial Conduct? (2%)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

LEGAL ETHICS 2009 BAR EXAMS

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

I - TRUE or FALSE II – Objective Questions III – Objective Questions IV 1. 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%)

SUGGESTED ANSWER: 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. 2. 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%)

SUGGESTED ANSWER: 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,

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%)

SUGGESTED ANSWER: 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%)

SUGGESTED ANSWER: 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

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

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ATTY. ELBA S. CRUZ

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.

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-08-46-J, 19 August 2008) IX - Practical Exercises X - Practical Exercises

1. Did Atty. Manuel violate any ethical standard for lawyers? Explain. (3%)

SUGGESTED ANSWER: 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. 2. 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%)

SUGGESTED ANSWER: 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%)

SUGGESTED ANSWER: 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

PART II XI - TRUE or FALSE 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%)

SUGGESTED ANSWER: 1) 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. SUGGESTED ANSWER: 2) Atty. Hyde's defense that his private life has nothing to do with his practice of law is not meri torious. The CPR specifically provides that lawyers should not engage in conduct that adversely reflect s his fitness to practice law, nor behave in a scanda lous manner to discredit the legal profession, wheth er privateor public. Thus, there is a ground for sanctions ions or even his disbarment.

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

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%)

SUGGESTED ANSWER: 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.

complaint can be gleaned as a delaying tactic on the part this time of the client. SUGGESTED ANSWER: 2)

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 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 forum-shopping. Are the defenses of Atty. Wilmar tenable? Explain. (4%)

SUGGESTED ANSWER: 1)

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

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. 1. If Simeon is convicted of estafa, will he be disbarred? Explain. (3%) 2. If Simeon is acquitted of the estafa charge, will the disbarment complaint be dismissed? Explain. (3%)

SUGGESTED ANSWER: 1. 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) 2. 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

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

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%)

SUGGESTED ANSWER: 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.

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.

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 AttorneyClient privilege. Obiter: For communication to be privileged, it must be for a lawful purpose and the existence of an unlawful purpose prevents the privilege from attaching. Rule 12.06, CPR also states that the lawyer shall not knowingly assist a witness to misrepresent himself .

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

2008 LEGAL ETHICS BAR EXAM I Christine was appointed counsel de oficiofor 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. a. In light of Zuma‘s admission, what should Christine do? Explain. (3%)

SUGGESTED ANSWER: Christine should suggest to Zuma that he should plead guilty to the crime as charged. The Code of Professional Responsibility provides that a lawyer who learns that his client had perpetrated a fraud upon the court shall call upon his client to rectify the same. b. Can Christine disclose the admission of Zuma to the court? Why or why not? (2%)

SUGGESTED ANSWER: NO. Christine cannot disclose Zuma's admission to the court because such disclosure to Christine are considered privileged communication and as such may not be disclosed by the attorney without the permission of the client.

2007, Temavous, another telecommunications company, requested B & S to act as its counsel in the following transactions: (a) the acquisition of Acaramba; and (b) the acquisition of Super-6, a company engaged in the power business. In which transactions, if any, can Bianca & Sophia Law Office represent Temavous? Explain fully. (7%)

SUGGESTED ANSWER: Bianca & Sophia Law Office cannot represent Temavous in the acquisition of Acaramba Code of Professional Responsibility provides that a lawyer shall not represent parties with adverse interests to one another. Even though their relationship had already been terminated the Code further provides that a lawyer should safeguard the confidences of his former client. In the case of acquisitions, B&S would appear have an undue advantage or in assisting Temavous‘ acquisition of its former client due to its prior relationship. In a word, there is a conflict of interest despite the termination of the lawyer-client relationship. In contrast, as to the case of Super-6, B&S may represent Temavous because such a transaction is in no way connected to its prior relationship with Acaramba. III

c. Can Christine withdraw as counsel of Zuma should he insist in going to trial? Explain. (3%)

Dumbledore, a noted professor of commercial law, wrote an article on the subject of letters of credit which was published in the IBP Journal.

SUGGESTED ANSWER: YES. Christine may withdraw as counsel for Zuma. The Code of Professional Responsibility provides that an attorney shall not suffer a fraud be committed upon the court by his client.

a. Assume he devoted a significant portion of the article to a commentary on how the Supreme Court should decide a pending case involving the application of the law on letters of credit. May he be sanctioned by the Supreme Court? Explain. (4%)

Jurisprudence provides that the attorney may withdraw by reasoning to the court that his client committed a fraud but may not disclose the specific nature of the fraud due to privileged communication.

SUGGESTED ANSWER: YES. He may be sanctioned by the court. The Code of Professional Responsibility provides that a lawyer shall not make any public statements in the media regarding a pending case that advocate for either side. Violations thereof will render him liable.

II In 1998, Acaramba, a telecommunications company, signed a retainer agreement with Bianca & Sophia Law Office (B & S) for the latter‘s legal services for a fee of P2,000 a month. From 1998 to 2001, the only service actually performed by B & S for Acaramba was the review of a lease agreement and representation of Acaramba as a complainant in a bouncing checks case. Acaramba stopped paying retainer fees in 2002 and terminated its retainer agreement with B & S in 2005. In

b. Assume Dumbledore did not include any commentary on the case. Assume further after the Supreme Court decision on the case had attained finality, he wrote another IBP Journal article, dissecting the decision and explaining why the Supreme Court erred in all its conclusions. May he be sanctioned by the Supreme Court? Explain. (3%)

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

the agreement violates Article 1491 of the Civil Code which prohibits lawyers from acquiring by purchase properties and rights which are the object of litigation in which they take part by reason of their profession. Is the refusal justified? Explain. (4%)

SUGGESTED ANSWER: NO. At this instance, he may not be sanctioned by the court. The Code‘s prohibition on commenting on cases, especially if the same is for constructive attention or study, does not extend to cases that have already been decided with finality. IV 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. 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 P150 Million on the ground that it is excessive. Is the refusal justified? Explain. (4%)

SUGGESTED ANSWER: NO. Contract for contingent fee is not prohibited under Article 1491 of the Civil Code and the Canons. The refusal is not justified since 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 the favorable judgment. (Director of Lands v Ababa) Considering the long, protracted and complex history and nature of the case, Php150 million is a fair and reasonable fee. Obiter: Lawyers cannot be deprived of his attorney‘s fees through the clients maneuvers. V

SUGGESTED ANSWER: NO. Legal fees based on contingent fee are valid and legal. In the case at bar, the contingent fee agreement, including the 15% agreed to by the client at the onset is valid and binding. There being no departure nor any other conditions present to change the determination of the legal fees, the client is now precluded from contesting that the computed fees are excessive. In the case at bar, the elements of a contingent fee contract are met, meaning the lawyer will be paid his legal fees only if he obtains a favorable settlement or end to his clients claim. Obiter: Contract for contingent fee are sanctioned by Canon 13 (CPE) and Rule 20.01 (CPR). In taking the risk that the lawyer may not be paid at all despite exertion of serious efforts, he can charge fees much higher than absolute fee arrangement. Furthermore, the increased sum that is recovered in case of success merely offsets the risk of loss that would have resulted in case of failure (Warvelle, Legal Ethics).. b. Assume there was no settlement and the case eventually reached the Supreme Court which promulgated a decision in favor of Chester. This time Chester refused to convey to Laarni 15% of the litigated land as stipulated on the ground that

The vendor filed a case against the vendee for the annulment of the sale of a piece of land. a. 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. (4%)

SUGGESTED ANSWER: NO. Vendee's counsel would not be entitled to enforce a charging lien. A charging lien to be enforceable there must be a judgment for money. In the case at bar, there was no mention of a judgment for money in favor of the vendee thus vendee's counsel cannot enforce a charging lien. b. Assume, through the excellent work of the vendee‘s counsel at the pre-trial conference and his wise use of modes of discovery, the vendor was compelled to move for the dismissal of the complaint. In its order the court simply granted the motion. Would your answer be the same as in question (a)? Explain. (3%)

SUGGESTED ANSWER: Vendee's counsel would still not be entitled to enforce a charging lien, where a monetary judgment is material to its justification.

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

A dismissal on motion of the plaintiff did not include a judgment for money, hence counsel cannot enforce a charging lien. VI Atty. Abigail filed administrative cases before the Supreme Court against Judge Luis. Thereafter, Atty. Abigail filed a Motion for Inhibition praying that Judge Luis inhibit himself from trying, hearing or in any manner acting on all cases, civil and criminal, in which Atty. Abigail is involved and handling. Should Judge Luis inhibit himself as prayed for by Atty. Abigail? Explain fully. (6%)

SUGGESTED ANSWER: NO. The case at bar, where the judge is charged in administrative cases by the complainant, is not among the mandatory grounds which prohibits the judge from taking part in the proceedings where his impartiality might be reasonably questioned. (CJC Rule 3.12), despite being not limitative and can admit of other valid discretionary grounds. The said rule, except (a0 was based on Rule 137 of the Rules of Court. The 2nd paragraph states ―a judge may, in his sound discretion, disqualify himself .. for just and valid reasons‖, and recognizes a broad-policy oriented ground whch makes inhibition as discretionary. (Del Castillo v. Javelona) However, the facts that Atty. Abigail actually filed several administrative cases against him should deserve serious consideration as well It is the duty if the judge to act on motions for inhibition. A judge is bound never to consider lightly a motion for his inhibition that questions or puts in doubt, however insignificant, his supposed predeliction to a case before him. While he must exercise great prudence and utmost caution in considering and evaluating a challenge to his impartiality, he is expected nevertheless, to act with good dispatch. Any delay, let alone an inaction, on his part can only fuel, whether justified or not, an intensified distrust on his capability to render dispassionate on the case. (Albos v Alaba) Obiter: In a motion to disqualify a justice, the court held that ―a litigant… cannot be permitted to speculate upon the action of the court and raise an

objection of this sort (file for disqualification) after decision has been rendered. (Araneta v Dinglasan) VII In need of legal services, Niko secured an appointment to meet with Atty. Henry of Henry & Meyer Law Offices. During the meeting, Niko divulged highly private information to Atty. Henry, believing that the lawyer would keep the confidentiality of the information. Subsequently, Niko was shocked when he learned that Atty. Henry had shared the confidential information with his law partner, Atty. Meyer, and their common friend, private practitioner Atty. Canonigo. When confronted, Atty. Henry replied that Niko never signed any confidentiality agreement, and that he shared the information with the two lawyers to secure affirmance of his legal opinion on Niko‘s problem. Did Atty. Henry violate any rule of ethics? Explain fully. (7%)

SUGGESTED ANSWER: NO and YES. Canons 15 (Rule 15.02) and 21 of the CPR enunciates the rules regarding privileged communication for a prospective client and a retained client respectively. The general rule is, it is privileged at the onset of a legal consultation and cannot be divulged without the consent of the client. In the case at bar, Rule 21.04 states that he may disclose such information to firm partners unless prohibited by his client. As such, absent any express instruction not to divulge to a law partner or staff thereof, Atty. Henry may be absolved from violation of the rule on ethics, since the consultation is with the law office and not Atty. Henry personally nor exclusively. However, he is not justified when he shared the information with a private practitioner, not a partner of the law firm since he may not disclose such information to outside agencies without the consent of his client. It is immaterial whatever his intentions or purposes, since the CPR clearly state the grounds when Atty. Henry can divulge the information, none of which are present in the case at bar. (Rules 21.01 and 21.03) Obiter: In any of the situations abovementioned, the need for a formal confidentiality agreement, while the same may clearly delineate the scope and limits thereof, it is nonetheless not essential for the privilege communication to attach.

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

VIII State, with a brief explanation, whether the lawyer concerned may be sanctioned for the conduct stated below.

a. Filing a complaint that fails to state a cause of action, thereby resulting in the defendant succeeding in his motion to dismiss. (3%)

SUGGESTED ANSWER: YES. As so provided by the Code of Professional Responsibility, a lawyer shall not handle any legal matter without adequate preparation. As an officer of the court and beacon of justice, it is expected from the lawyer to be, at all times, diligent and prepared to protect the cause of his client. b. A suspended lawyer working as an independent legal assistant to gather information and secure documents for other lawyers during the period of his suspension. (3%)

SUGGESTED ANSWER: YES. Under the law, only lawyers in good standing can perform or engage in the practice of law. In the case of Cayetano vs. Monsod, the Court held that the practice of law involves rendering service to the general public that calls for the professional judgment of a lawyer, the essence of which is his educated ability to relate the general body and philosophy of law to a specified legal problem. Clearly, the act of working as a legal assistant in gathering information and securing documents for other lawyers is within the scope of practicing law. Thus, a suspended lawyer is temporarily prohibited to practice the legal profession. c. A suspended lawyer allowing his non-lawyer staff to actively operate his law office and conduct business on behalf of clients during the period of suspension. (3%)

SUGGESTED ANSWER: YES. Considering that the legal profession is only for the privileged few, the Code of Professional Responsibility states that only those qualified and in good standing shall be allowed to practice law.

SUGGESTED ANSWER: YES. The Code provides that a lawyer should account for all money he collected immediately. He should not wait that the client would ask or demand for the money.

e. Refusing to return certain documents to the client pending payment of his attorney‘s fees. (3%)

SUGGESTED ANSWER: NO. Rule 138, Section 37 of the Rules of Court states that ―an attorney shall have a lien upon the funds, documents and papers of his client which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof.‖ Hence, he may keep the documents pending payment of his attorney's fees. f. An unwed female lawyer carrying on a clandestine affair with her unwed male hairdresser. (3%)

SUGGESTED ANSWER: NO. The supposed clandestine affair is considered of no moment. Both parties are of age and qualified to marry each other hence the affair is not one which is grossly immoral. It is not so corrupt nor so unprincipled to warrant sanction from the court. g. Not paying the annual IBP dues. (3%)

SUGGESTED ANSWER: YES. Default in payment of IBP dues for 6 months shall warrant suspension of membership to the IBP and default in payment for one year shall warrant for the removal of the member in the Roll of Attorneys. IX State, with a brief explanation, whether the judge concerned may be sanctioned for the conduct stated below.

a. Refusing to inhibit himself although one of the lawyers in the case is his second cousin. (3%)

d. Keeping money he collected as rental from his client‘s tenant and remitting it to the client when asked to do so. (3%)

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

SUGGESTED ANSWER: NO. Under Canon 3, Rule 3.12 a judge should take no part in a proceeding where the judge's impartiality might reasonably be questioned. One of the cases would be where the judge is related by consanguinity or affinity to counsel within the fourth degree. A second cousin is a relative within the 6th degree, hence it is not covered by the prohibition. b. Deciding a case in accordance with a Supreme Court ruling but adding that he does not agree with the ruling. (3%)

SUGGESTED ANSWER: NO. There is no law or rule prohibiting such conduct. Regardless of his opinion, the judge still followed the Supreme Court's ruling thus there is really nothing wrong with such act. Further, his opinion is of no bearing as it is not part of the decision but is just a dissenting one. c. Dictating his decision in open court immediately after trial. (3%)

SUGGESTED ANSWER: NO. There is no prohibition under the Code nor under any laws of the land for him to dictate his decision immediately after trial. What the Code states is that for the Judge to have a reasoned decision based on the facts and evidence presented before his court.

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

2007 LEGAL ETHICS BAR EXAM - I - (10%) What are the duties of an attorney?

SUGGESTED ANSWER: 

Per the Attorney‘s Oath:

1. To maintain allegiance to the Republic of the Philippines; 2. To support its Constitution; 3. To obey the laws as well as the legal orders of the duly constituted authorities therein; 4. To do no falsehood, nor consent to the doing of any in court; 5. To avoid wittingly or unwittingly promoting or suing any groundless, false or unlawful suit, nor give aid or consent to the same; 6. To delay no man for money or malice; 7. To conduct himself as a lawyer according to the bets of his knowledge and discretion with all good fidelity well to the courts as to his clients



Per Section 20, Rule 138 of the Rules of Court:

1. To maintain the allegiance to the Republic of the Philippines; 2. To maintain the respect due to the courts of justice and judicial officers; 3. 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; 4. To employ, for the purposes 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; 5. 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;

6. 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; 7. 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; 8. Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed; 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.



Per the Code of Professional Responsibility:

1) Duties to society in general – to uphold the Constitution, obey the laws of the land and promote respect for the law and legal processes; 2) Duties to the legal profession – to uphold the dignity and integrity of the legal profession; 3) Duties to the court – to be candid with and promote respect for the courts and judicial officers, and to assist the courts in rendering speedy and efficient justice; and 4) Duties to the client – to observe candor, fairness and loyalty to the client; hold the client‘s money and property in trust, serve the client with competence and diligence, always mindful of the trust and confidence reposed by the client in him; 5) N.B. It should be sufficient that the answer contain either the attorney‘s oath, the duties of an attorney under Section 20, Rule 138 of the Rules of Court, or the duties under the Code of Professional Responsibility, as any of these provisions sufficiently state the statutory basis of an attorney‘s duties.

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

- II - (10%) C engages 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.

SUGGESTED ANSWER: YES. Attorney D violated the Code of Professional Responsibility, particularly Canons 16 and 17 which states:  

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

Rule 16.02 clearly states that a lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him. The lawyer is under strict obligation to label and to identify his client‘s property and keep it separate and apart from his own. (CBA, Code of Professional Conduct) Accountability and transparency lies at the heart of the violation of fiduciary relation between the lawyer and the client. Questionable are the circumstances which eventually led to the conveyance of the property of the client (which in this instance was not yet subject to litigation). Consent of the client is vague at some instances. A lawyer was disbarred for having used the money of his client without the consent of the client. (Businos v Ricafort) Case law has it that ―whether the deed of conveyance was exercised at the instance of the client, driven by financial necessity, or at the instance of the lawyer is of no moment ―(In Re Atty. Ruste). ―In either case, an attorney occupies a

vantage position to press upon or dictate his terms to a harassed client… The act constitutes malpractice and the prohibition applies even if the lawyer has not paid money for it….‖ (Ordonio v Eduarte) The decision of the Supreme Court in the case of Hernandez v. Go is squarely applicable to this problem. It was declared that such sale is "void and inexistent from the beginning". By that, the lawyer violates his oath of office - to obey the laws of the land. Thus, he is guilty of malpractice and should be disciplined for his acts. Obiter: The attorney-client relationship is highly fiduciary in nature and of a very delicate, exacting and very confidential character, requiring the highest degree of fidelity and good faith. In view of that special relationship, lawyers are bound to promptly account for money or property received by them on behalf of their clients and failure to do so constitutes professional misconduct meriting disbarment. (Businos v Ricafort). - III - (10%) Attorney M. accepted a civil case for the recovery of title and possession of land in behalf of N. Subsequently, after the Regional Trial Court had issued a decision adverse to N, the latter filed an administrative case against attorney M for disbarment. He alleged that attorney M caused the adverse ruling against him; that attorney M did not file an opposition to the Demurrer to Evidence filed in the case, neither did he appear at the formal hearing on the demurrer, leading the trial court to assume that plaintiff's counsel (Attorney M) appeared convinced of the validity of the demurer filed; that Attorney M did not even file a motion for reconsideration, causing the order to become final and executory; and that even prior to the above events and in view of Attorney M's apparent loss of interest in the case, he verbally requested Attorney M to withdraw, but Attorney M refused. Complainant N further alleged that Attorney M abused his client's trust and confidence and violated his oath of office in failing to defend his client's cause to the very end. Attorney M replied that N did not give him his full cooperation; that the voluminous records turned over to him were in disarray, and that when he appeared for N, he had only half of the information and background of the case; that he was assured by N's friends that they had approach the judge; that they requested him (M) to prepare a motion for reconsideration which he did and gave to them; however these friends did not return the

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

copy of the motion. Will the administrative case prosper? Give reasons for your answer.

SUGGESTED ANSWER: YES. The administrative case for disbarment will prosper on the ground of misconduct as a result of the violation of the CPR and the lawyer‘s oath. Canon 18 states that a lawyer shall serve his client with competence and diligence.. As such, it presumes that the lawyer is expected to exercise ordinary diligence of a good father and must be always protective of the interests of his client, which includes vigilance and attention His acceptance of the case entitles his client to effective representation which begins with full and adequate preparation to protect the clients interest. There is no clear showing that these were observed in the case at bar. A lawyer was actually suspended from the practice of law for not appealing (Petition for Review) the adverse decision of the CA to the prejudice of the client. (Guiang v Antonio) which is similar to the case at bar. As such, a lawyer may be held liable when by his negligence as the proximate cause of the, actual loss is suffered by the client. (Amjur) Lititgants should nonetheless give the needed assistance to their counsel for what is at stake is their interest (Greenhills Aircon & Services v NLRC). Jurisprudence states that litigant cannot expect his case to be properly and intelligently handled without listening to hi his own counsel and extending full cooperation to him (Villafuerte vs Cortez). Thus, Lawyer M appears negligent because of his failure to file an opposition to the demurrer, appear at the demurrer hearing, and not filing a motion for reconsideration. There is showing also that counsel was negligent when he failed to inform the client of the status of the cases until it was too late as is enjoined in Rule 18.04. This however has a counterpart duty on the part of the litigant to be in contact with his client to know the progress of his case, and not to be totally reliant on counsel to litigate his case. (Bernardo v CA)

Furthermore, Atty. M‘s refusal to comply with N‘s request to withdraw from the case violated the absolute right of the client to terminate his lawyer at any time with or without cause (Section 26, Rule 138 of the Rules of Court). The case is analogous to Anderson Jr. vs Cardeno, wherein the court held that as a lawyer representing the cause of his client, should have taken more control over the handling of the cases and, in consequence of his violation of Canons 17 and 18, he was suspended for 6 months. - IV - (10%) When is recovery of attorney's fees based on quantum meruit allowed?

SUGGESTED ANSWER: The recovery of attorney‘s fees on quantum meruit is allowed in the following circumstances: 1. When there is no express contract for payment of attorney's fees agreed upon between the lawyer and the client; 2. When although there is a formal contract for attorney's fees, the fees stipulated are found unconscionable or unreasonable by the court; 3. When the attorney's fees is void due to purely formal matters or defects of execution; 4. When the counsel, for justifiable case, was not able to finish the case to its conclusion; and 5. When the lawyer and client disregard the contract for attorney's fees.

- V - (10%) During the hearing of an election protest filed by his brother, Judge E sat in the area reserved for the public, not beside his brother's lawyer. Judge E's brother won the election protest. Y, the defeated candidate for mayor, filed an administrative case against Judge E for employing influence and pressure on the judge who heard and decided the election protest. Judge E explained that the main reasons why he was there in the courtroom were because he wanted to observe how election protest are conducted as he has never conducted one and because he wanted to give moral support to his brother. Did Judge E commit an act of impropriety as a member

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

of the judiciary? Explain?

SUGGESTED ANSWER: YES. In the case of Vidal v. Dojillo, Jr., which involved the same facts, the Supreme Court held as follows: ―Canon 2 of the Code of Judicial Conduct requires a judge to avoid not only impropriety but also the mere appearance of impropriety in all activities. Even if respondent did not intend to use his position as a judge to influence the outcome of his brother‘s election protest, it cannot be denied that his presence in the courtroom during the hearing of his brother‘s case would immediately give cause for the community to suspect that his being a colleague in the judiciary would influence the judge trying the case to favor his brother. - VI - ( 10%) a. A and B are accused of Estafa by C, the wife of Regional Trial Court Judge D. Judge D testified as a witness for the prosecution in the Estafa case. Did Judge D commit an act of impropriety? Give reasons for your answer. (5%)

SUGGESTED ANSWER: NO. There is no express provision in law, statutory or in jurisprudence that prohibits a member of the bench from testifying in support of case filed by his wife or any other person. Judge D did not commit an act of impropriety as proscribed in Canon 2 of the Code of Judicial Conduct which states that that a judge should avoid impropriety and the appearance of impropriety in all activities. This includes a judge‘s behavior in the performance of his judicial duties, outside of it, and in his private capacity. There is no showing that his testimony per se was sought as a means to extend influence to the judgment to be made by the member of the bench assigned to hear the case. Neither is there a showing that other acts such as regular appearance in the hearings, apart from the time of testimony was made that may be construed as improper.

judiciary is not prohibited from being a witness to a case. Furthermore, Judge D did not give an opinion nor participated in any proceeding that could slant the evaluation and resolution of the case in favor of the party he identifies himself with. This is supported by the Supreme Court decision in Perez vs. Costales. The act of influencing in any manner the the outcome of the litigation or dispute pending before another court is proscribed in Rule 2.04, which again is not clear in the case at bar. Obiter: In the case at bar, the judge took the witness stand in support of the estafa case filed by his wife. This is analogous to Rule 3.12 of the CJC which enumerates the list of mandatory prohibitions of proceedings of which the judge cannot take in. None is present in the case at bar. c. What qualities should an ideal judge possess under the New Code of Judicial Conduct for the Philippine Judiciary? (5%)

SUGGESTED ANSWER: Qualities of an ideal judge under the NCJC are as follows: Canon 1 - Integrity and Independence; Canon 2 - Avoid impropriety and the appearance of impropriety; Canon 3 – Honesty, impartiality and diligence vis a vis professional competence; Canon 4 – Supportive of activities that improve the law, the legal system and the administration of justice; Canon 5- Regulated extra-judicial activities Obiter: Under the Code of Judicial Ethics are: 1. Independence (Canon 1); 2. Integrity (Canon 2); 3. Impartiality (Canon 3); 4. Propriety (Canon 4); and 5. Competence and Diligence (Canon 5)

Case law has it his participation in the Estafa case as limited to being a witness, and a member of the CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

2006 LEGAL ETHICS BAR EXAM -I1. Why is law a profession and not a trade? 2.5%

SUGGESTED ANSWER: Law is profession and not a trade because the basic ideal of law is to render public service and secure justice for those who seek its aid. The gaining of a livelihood is only secondary.

The primary characteristics which distinguish the legal profession from trade are: a. a duty of service, of which the emolument is a by-product, and in which one may attain the highest eminence without making such money; b. It involves a relation as an ‗officer of court‘ to the administration of justice involving thorough sincerity, integrity and reliability; c. It involves a relation to clients in the highest degree of fiduciary; d. It involves a relation to colleagues at the bar characterized by candor, fairness and unwillingness to resort to current business methods of advertising and encroachment on their practice or dealing with their clients.

SUGGESTED ANSWER: YES. ―Practicing lawyer‖ is engaged in any activity in and out of the court which requires the application of law, legal procedures, knowledge, training and experience. While, a ―trial lawyer‖ is a one who personally handles cases in court which means engaged in actual trial work either for prosecution or for the defense of the client (Cayetano v. Monsod). All Trial lawyers are practicing lawyers, but not all practicing lawyers are trial lawyers. 2. Enumerate the instances when a law student may appear in court as counsel for a litigant. 2.5% (KEYWORD: C.R.A.N.G.S.)

SUGGESTED ANSWER:

1) 1) Under Cadastral Act, a non-lawyer may represent a claimant before the Cadastral Court. (Sec. 8, Act. 2250)

2) In a Remote municipalities where members of the are not available, the judge of an inferior court may appoint a non-lawyer who is a KEYWORD:

  

REMOTE –RAG

resident of the province and of good repute for probity and ability, to aid the defendant in his defense. (Sec. 7, Rule 116, Revised Rules of Court)

3) When he appears as an agent or friendof a 2. Why is an attorney considered an officer of the court? 2.5%

SUGGESTED ANSWER: An attorney is an officer of the court because he forms part of the machinery of justice, exercising privileges which are indispensable in the administration of justice and as such is subject to disciplinary authority of court. He owes candor, fairness and good faith to the court.

litigant in an inferior court. (Sec.34, Rule 138, Revised Rules of Court)

4) A law student may appear before NLRC or Labor Arbiter if he represents himself:

  

―A lawyer shall exert every effort and consider it his duty to assist in the speedy and sufficient administration of justice.‖(Canon 12, CPR) - II 1. Is there a distinction between "practicing lawyer" and "trial lawyer"? 2.5%

(KEYWORD:NLRC- PAL)

as a party to the case, he represents an organization or its member with written authorization from them, or he is duly accredited member of any legal aid office duly recognized by DOJ or IBP in cases referred by the latter (Art. 222LC; Sec. 6,Rule 3 NLRC Rules of Procedure)

5) When he is authorized by law to appear for the Government of the Philippines. (Sec. 33, Rule 138, Revised Rules of Court)

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

6) A law student who has successfully completed rd

his 3 year of the regular four-year prescribed law curriculum who: (KEYWORD: SENIOR LAW



STUDENT-E-DAW)

is enrolled in a recognized law school‘s clinical legal education program,  with direct supervision of IBP member duly accredited by school,  approved by the Supreme Court may appear  without compensation in any civil, criminal, administrative case before any trial court, tribunal, board or officer, to represent indigent clients accepted by the Legal Clinic of the law school,  under direct supervision and control of a member of the IBP, if he appears in a RTC, and  without such supervision if he appears in an inferior court. (Student practice rule-Rule 138-A; Bar Matter 730) - III 1. 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 oficio 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? 5%

SUGGESTED ANSWER: NO. The practice of law is a privilege burdened with conditions.. Continuing to practice law during his suspension constitutes gross misconduct and willful disregard of suspension order. It is a flouting resistance to lawful orders and violation of his oath. (Gaerlan v. Navarro 185 SCRA 230). Be it noted that a lawyer cannot take off his hat, for it will set a dangerous precedence. 2. 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? 5%

SUGGESTED ANSWER: NO. Notwithstanding the civil or criminal case, the effect of such suspension is the same in all cases. Atty. Fernandez cannot practice his profession until such

suspension be revoked by the Supreme Court; or else, it will be a violation of Rule 9.01 CPR, ―A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the Bar in good standing.‖ - IV Atty. Oldie, 80 years old, refuses to pay his IBP dues. He argues he is a senior citizen and semi-retired from the practice of law. Therefore, he should be exempt from paying IBP dues. 1. Is his argument correct? 3%

SUGGESTED ANSWER: NO. Canon 7 CPR states that ‖A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the activities of the Integrated bar.‖ Paying IBP dues is a continuing requirement in the practice of law as a member and to maintain the good standing. If a lawyer is still actively engaged in practice of law, he is required to comply with its requirements. And seniority is not an exemption. 2. For the same reasons, Atty. Oldie also insist that he should be exempt from the Mandatory Continuing Legal Education (MCLE) requirements. Should he be exempt? 3%

SUGGESTED ANSWER: NO. Canon 5 of the CPR, a lawyer should ―keep abreast of legal developments and participate in the continuing legal educational program.‖ Atty. Oldie is not also exempt from MCLE, provided he is still in the practice of law. MCLE is a continuing requirement for all members of IBP. Being a senior citizen is not one of the exemptions. -VMyrna, petitioner in case for custody of children against her husband, sought advice from Atty. Mendoza whom she met at a party. She informed Atty. Mendoza that her lawyer, Atty. Khan, has been charging her exorbitant appearance fees when all he does move for postponements which have unduly delayed the proceedings; and that recently, she learned that Atty. Khan approached her husband asking for a huge amount in exchange for the withdrawal of her Motion for issuance of Hold Departure Order so that he and his children can leave for abroad.

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

1. Is it ethical for Atty. Mendoza to advise Myrna to terminate the services of Atty. Khan and hire him instead for a reasonable attorney's fees? 5%

SUGGESTED ANSWER: NO. The advice is unethical and is against the prohibition on acts, direct or indirect that can be construed as an encroachment upon the professional employment of another as enjoined in Rule 8.02. This supports Canon 8 which reads ―A lawyer owes his candor, fairness and courtesy towards his professional colleagues.‖ Competition among attorneys is contrary to the long established etiquette of the legal profession. No self-respecting lawyer will voluntarily tender his services to pending matters being conducted by another counsel and will not obtrude criticism on acts of a party‘s attorney. (CPE, Warvelle, Legal Ethics) 2. What should Atty. Mendoza do about the information relayed to him by Myrna that Atty. Khan approached her husband with an indecent proposal? 5%

SUGGESTED ANSWER: The rule on encroachment admits of an exception, such as the case of an unfaithful and neglectful counsel. In this situation, the CPR states that Atty. Mendoza may give proper advice and assistance. Any advice or assistance given after proper verification is not encroachment and is justified under the circumstances. A lawyer shall not abet activities aimed at defiance of the law or at lessening the confidence in the legal system. (Rule 1.02, CPR) A lawyer who has acquired knowledge of the malpractices of another lawyer now has the duty to the public and to the bar to inform the SC and/or the IBP for the purpose discontinuing the malpractice together with the attendant and appropriate discipline. - VI In his petition for certiorari filed with the Supreme Court, Atty. Dizon alleged that Atty. Padilla, a legal researcher in the Court of Appeals, drafted the assailed Decision; that he is ignorant of the applicable laws; and that he should be disbarred. Can Atty. Dizon, in castigating Atty. Padilla, be held liable for unethical conduct against the Court of Appeals? 5%

SUGGESTED ANSWER: YES. Rule 8.01 of the CPR provides: ―A lawyer shall not, in his professional dealings use language which is abusive, offensive or otherwise improper.― A lawyer‘s language should be forceful but dignified, empathic but respectful as befitting an advocate and in keeping with the dignity of the legal profession (Surigao Mineral v Cloribel) While a lawyer is entitled to present his case with vigor and courage, such enthusiasm does not justify the use of offensive and abusive language. Language abounds with countless possibilities for one to be emphatic but respectful, convincing but not derogatory, illuminating but not offensive. Lawyers must abstain from all offensive personality in keeping with the dignity of the legal profession. (Saberon vs Larong; April 16, 2008) ALTERNATIVE ANSWER : YES. Courtesy to fellow lawyers is necessary in the administration of justice. Lawyers are officers of the court and include judges, prosecutors and legal practitioners—and belong to an exclusive profession privileged with the practice of law. This tenet of dignity necessitates that lawyers conduct themselves honorable, candidly and fairly towards each other. Respect begets respect. The CPR enjoins lawyers to avoid harassing tactics and their battle for justice still requires them to put on courtesy and fairness-avoiding those they do not want to be done to them as members of the Bar. Disrespectful and, abusive and abrasive language, offensive personalities, unfounded and naïve accusations or intemperate words tending to obstruct, embarrass and influence the court or its members, including bringing it into disrepute have no place in a pleading, such as the Petition for Certiorari herein filed. Case law has is, ―their employment serves no useful purpose and on the contrary constitutes direct contempt or contempt in facie curiae (Surigao Mineral v Cloribel, Macia v Malig) A lawyer who uses intemperate, abusive, abrasive or threatening language betrays disrespect to the court, disgraces the Bar and invites the exercise by the Court of its disciplinary powers. (Surigao Mineral v Cloribel, Zaldicar v Gonzalez)

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

- VII Provincial Prosecutor Bonifacio refused to represent the Municipality of San Vicente in a case for collection of taxes. He explained that he cannot handle the case with sincerity and industry because he does not believe in the position taken by the municipality. Can Prosecutor Bonifacio be sanctioned administratively? 5%

SUGGESTED ANSWER: YES A public prosecutor is a quasi –judicial officer. He is a representative not of an ordinary party but of sovereignty... (Suarez vs. Platon 69 Phil 556). Unlike a practicing lawyer who has the right to decline employment, a government lawyer cannot refuse the performance of his duties on grounds not provided by law without violating his oath of office. A public office is a public trust and a public servant owes utmost fidelity to the public service. He cannot allow his personal beliefs to interfere with his duties. ALTERNATIVE ANSWER: YES. Canon 6 states that the CPR also applies to lawyers in government service in the discharge of their official duties. Rule 6.01 states that the primary duty of those in public prosecution is to ―see to it that justice is done‖. In the words of Justice Sutherland of the US SC, ―he is a representative ,,, of a sovereignty ..and whose interest is…that justice shall be done.‖ (Suarez v Platon) Under RA 6713, the norms of conduct include among others, commitment to public interest over personal interest and political neutrality) Under the above legal premises, while Prosecutor Bonifacio is not beholden to the Municipality he is assigned to, his personal interest and views are subservient to his official duties. In the case at bar, he must be mindful that insofar as collection of taxes are concerned, it is the law and not his personal position that must guide him in prosecuting the case. Note further that taxes are construed liberally in favor of the government. If he allows his personal view to prevail contrary to the law, them he can be administratively held liable. - VIII 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? 5%

SUGGESTED ANSWER: NO. Rule 10.03 of the CPR provides that a lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice. Any attempt to pervert the ends for which they are intended deserves condemnation. The prosecutor is deputized by the Office of the Solicitor General to appear on its behalf and on behalf of the State. This is so because the State is a party to the cases abovementioned and cannot be represented by the other party-litigants. His presence in the hearings, as well as in filing the necessary observations and objections cannot be arbitrarily excused or waived. To state simply, his participation is required. His excuse is therefore untenable and can be held administratively liable. Obiter: The role of State‘s lawyer in nullification of marriage cases is that of protector of the institution of marriage. It is inviolable and requires vigilant and zealous participation and not mere pro forma compliance. (Sin vs Sin 355 SCRA 285) - IX Atty .Marie consulted Atty .Hernandez whether she can successfully prosecute her case for declaration of nullity of marriage she intends to file against her husband. Atty. Hernandez advised her in writing that the case will not prosper for the reasons stated therein. Atty .Marie, however, decided to file the case and engaged the services of another lawyer, Atty .Pe. Her husband, Noel, having learned about the opinion of Atty .Hernandez, hired him as his lawyer . Is Atty. Hernandez's acquiescence to be Noel's counsel ethical? 3%

SUGGESTED ANSWER: NO. Rule 15.03 provides: ―A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.‖ Atty. Hernandez‘s assent to be Noel‘s counsel will

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

constitute a conflict of interest. At the instance of the first legal consultation, privileged communication attaches and established the prospective lawyer-client relation ensued. This being the case, the receipt of confidential information raises the issue of conflict of interest and bars Atty. Hernandez from accepting employment essentially concerning same matter consulted. This is analogous to the a case decided by the SC. (Hidalgo vs. David)

contract where the lawyer stipulates with his client that in the prosecution of the case, he will bear all the expenses for the recovery of things or property being claimed by the client and the latter agrees to pay the former a portion of the thing/property recovered as compensation. This kind of contract is prohibited being contrary to public policy. Obiter: The condition to pay 60% of the property as contingent fee is not per se invalid and may be made separable from the clause of assuming all the costs of litigation.

-XIn 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? 5%

SUGGESTED ANSWER: NO. Atty. Holgado is not covered by lawyer-client privilege. Strictly construed, the privilege extends to legal matters and information in the course of the legal engagement and not on personal matters. Neither is the case at bar among those exceptions to the privilege which include: when there is consent or waiver of the client; it was not made in confidence; and, when such communications were made in contemplation of a crime or the perpetration of a fraud. Obiter: Similarly, the main purpose of privileged communication is to encourage a client of make a full disclosure of facts of the case to his counsel without fear and to allow the layer freedom to obtain full information from his client. - XI The contract of attorney's fees entered into by Atty .Quintos and his client, Susan, stipulates that if a judgment is rendered in her favor, he gets 60% of the property recovered as contingent fee. In turn, he will assume payment of all expenses of the litigation. 1. Is the agreement valid? 2.5% SUGGESTED ANSWER: NO. The agreement to assume all the expenses of the litigation is in the nature of a ―champertous contract‖. Otherwise out, it is a

2. May Atty .Quintos and Susan increase the amount of the contingent fee to 80%? 2.5%

SUGGESTED ANSWER: NO. Increase of contingent fee to 80% is unreasonable. A lawyer must charge only fair and reasonable fees. (Canon 20). Atty. Quintos and Susan can freely elect to increase attorney‘s fee, be that, as it may, they cannot lay down unconscionable amounts. Attorney‘s fees are always subject to the control by the courts. - XII 1. What is "assumpsit" and when is it proper? 2%

SUGGESTED ANSWER: Assumpsit is used in relation to collection of attorney‘s fees on a quantum meruitbasis.When a lawyer has been employed without a contract for his compensation, he is entitled to recover an amount his services merit, on basis of an implied promise by the client to pay such services. This refers to an assumpsit on quantum meruit. 2. Give 4 instances when a client may validly refuse to pay his lawyer the full amount of attorney's fees stipulated in their written contract. 4%

SUGGESTED ANSWER: 1) When the services called for were not performed as when the lawyer withdrew before the case was finished, he will be allowed only reasonable fees; 2) When the stipulated attorney‘s fees are in excess of what is expressly provided by law; 3) When the lawyer is guilty of fraud or bad faith toward his client in the matter of his employment; 4) When contract is contrary to law, morals or public policy.

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

- XIII What are the primary duties imposed by the Lawyer‘s Oath upon every member of the Bar? 5%

SUGGESTED ANSWER: The primary duties imposed by the Lawyer‘s Oath upon every member of the Bar are the following:

SUGGESTED ANSWER: No. 7 does not constitute a ground. Appearance of a non-lawyer as an attorney for a litigant in a case does not constitute a ground for disbarment. Only lawyers can be disbarred; a non-lawyer cannot be disbarred. Moreover, a non-lawyer is allowed conduct litigations in certain instances.

a. Maintain allegiance to the Republic of the Philippines; b. Support its constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; c. Do no falsehood, nor consent to the doing of any in court; d. Not willingly nor wittingly promote or sue any groundless, false or unlawful suit, or give aid nor consent to the same; e. Delay no man for money or malice; f. Conduct himself as a lawyer according to the best of his knowledge and discretion, with all good fidelity as well to the court as to his clients. - XIV 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 constitute a ground for his automatic disbarment in the Philippines? 2.5% SUGGESTED ANSWER: NO. Automatically disbarring Atty. Perez here in the Philippines will violate his right to due process The acts which led to his disbarment in New York, are mere grounds for filing a care for disbarment in this jurisdiction. It is for the SC to take cognizance of and give merit to the attendant facts and circumstances of the case/decision and determine whether the same is constitutive of the grounds for disbarment in this jurisdiction. . - XV Which of the following acts does not constitute a ground for disbarment? Explain. 2.5% 1. Gross misconduct 2. Fraudulent misrepresentation 3. Grossly immoral conduct 4. Violation of the Lawyer's Oath 5. Willful disobedience to a lawful order of the Supreme Court 6. Malpractice 7. Appearance of a non-lawyer as an attorney for a litigant in a case

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

MIDTERM EXAMINATION ARELLANO UNIVERSITY SCHOOL OF LAW PROBLEM AREAS IN LEGAL ETHICS - MIDTERM EXAMINATIONS January 27, 2012 ANSWER GUIDE Atty. ELBA S. CRUZ INSTRUCTIONS: READ QUESTIONS CAREFULLY. ANSWER WITH PRECISION. I.

Q & A -- (4 points each for a total of 20 points)

What are the major principles may be correlated to making legal services available?  2,7,12,14,20 and 22 while upholding the legal profession and withdraw only for cause and upon notice 2. State at least 2 rules under the canon n upholding the Constitution, obeying laws and promoting respect for law and legal processes.  1.01 not engage in unlawful, dishonest, immoral and deceitful conduct  1.02 not counsel or abet activities that defy the law and lessen confidence in the system  1.03 not encourage any suit or proceeding or delay any man‘s cause for any corrupt motive or interest  1.04 encourage his client to avoid, end or settle if it will admit of a fair settlement 3. State at least 2 rules that illustrate serving the client with competence and diligence.  18.01 not undertake service if he knows he is not qualified to render; except if he has clients consent to get collaborating counsel who is competent  18.02 not handle any legal matter without adequate preparation  18.03 not neglect legal matter entrusted to him, and his negligence will render him liable  18.04 shall keep client informed of the status of his case and shall respond within a reasonable time to the clients request for information 4. What are the exceptions to the rule on revealing the confidences or secrets of a client?



21.01 when authorized by client after acquainting him of the consequences of the disclosure;  When required by law;  When necessary to collect his fees or to defend himself, his employees or associates or by judicial action. 5. How should privileged communication be construed?  Strictly construed against the lawyer  15.02 lawyer is bound by matters disclosed by prospective client. II.

CONCEPTS - (3 points each for a total of 30 points). Cite the appropriate canon, rule or case law that briefly expounds the following concepts.

1.

Practice of law is not a trade. - Practice of law is a profession. It is improper to lower your legal rates just because another lawyer has offered a lower legal fee. The order of priority between the duty to the administration of justice and to the client. Case law has it that the first duty of the lawyer is not to his client but to the AOJ. His clients success is wholly subordinate to AOJ. His conduct ought to and must always be scrupulously observant of laws and ethics.. a lawyers fidelity to his client must not be pursued at the expense of truth & orderly AOJ. It must be done within the confines of reason & common sense. Attribution of judges motives. Rule 11.04 not attribute to a judge motives not supported by the record or have any materiality to the case. Obiter: a lawyer may criticize provided it us bonafide, exercised properly and in the proper forum. The issue of inadvertence. – This borders or negligence ( not being careful enough as to overlook or omit something proferred in his preparations and actions) and incompetence (for lack of complete preparation). Privilege communication on crimes already committed. - The same is privileged having already been committed. Differentiate rule on accepting/declining a retainer in civil and criminal cases. – lawyer has more latitude to decline civil cases if he believes the same is not meritorious. He should only maintain actions which are just & interpose defences which he believes are honestly debatable under the law. For criminal cases, other than for grounds provided by law , he should accept the criminal retainer and defend his clients rights regardless of his personal conviction.

1.

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

2.

3.

4.

5.

6.

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

7. Burden to impress compliance with the laws and principles of fairness – Burden is on the lawyer in accordance with 15.07 for lawyer to impress to his client on compliance and principles of fairness 8. Implication of accepting a retainer insofar as lawyer is concerned  He possesses the competence required  He exerts his best judgment in the defense or prosecution of client‘s cause  He will exercise reasonable & ordinary diligence in the performance of his duties  He will adequately guard his client‘s interest 9. Criterion to what are fair and reasonable fees  20.01 Time spent & extent of the service rendered or required;  Novelty & difficulty of questions involved;  Importance of the subject matter;  Skill demanded;  Probability of losing other employment as a result of acceptance of the preferred case;  Customary charges for similar services & benefits resulting to client  Contingency or certainty of compensation;  Character of employment (occasional or established)  Professional standing of the lawyer 10. Case where a retained client commits a fraud 19.02 upon a person or tribunal, lawyer 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 RC III.

QUICK DEFINITIONS in accordance with Legal Ethics. (2 points each for a total of 20 points)

1. Barratry - offense of frequently exciting & stirring quarrels & suits, either at law or otherwise, for any action in any body 2. Fidelity - quality of being faithful..sysnosymous with allegiance, fealty, loyalty and devotion. 3. Candor and fairness 4. Assumpsit – equivalent to quantum meruit meaning ― as much as the lawyer deserves‖ considering the value of the services he rendered 5. Contempt in general - Rule 71  is punished summarily  defined as a ―misbehaviour in the presence of or so near a court as to obstruct or interrupt the proceedings CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

6.

7.

8.

9.

10.

IV.

before the same, including disrespect toward the court‖.  Disrespectful and threatening language in a memo or pleading filed in court constitutes direct contempt and not indirect contempt.  Indirect contempt is punished after hearing & hearing. Disqualification by reason of privileged communication - Rule 130 Sec 24 RC; FF cannot testify as to matters learned in confidence: lawyer, w/o consent of his client, on any communication made by client to him, or his advice given thereon or with view of professional employment; prohibition attaches also to secretary, stenographer, clerk , without the consent of the client and his employer concerning any fact the knowledge of which was acquired in such capacity. Disqualification of judicial officers - Rule 137 – a judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just and valid reasons Amicus Curiae - Sec 36 RC a friend of the court; an impartial and experienced lawyer who is invited by the court to give an opinion regarding a difficult issue before it Retaining Lien – Sec 37 RC gives the lawyer the right to retain client‘s money, property and documents that he has legally come into his possession until the attorney has been paid all his fees for all his services. Charging Lien – Sec 37 RC gives the lawyer the right to charge a favourable judgment for money and its execution with his fees for services rendered.

PROBLEM SOLVING. DO NOT ASSUME OR ADD FACT S. EXPLAIN YOUR ANSWERS. (5 points each for a total of 20 points)

1. Madonna Batungbakal (a single mother) wanted to adopt a Filipino boy Bato (age 3) so that her own biological child (an American citizen) would have a brother. However, Madonna has already obtained her US residency and would be hard pressed to bring Bato to America. She then convinced her sister Britney (also childless and single) to adopt Bato promising to help her with the finances. They both turned to Atty. Beyonce for advice. a) Discuss the ethical issues (canons and rules) pertaining to the Code of Professional Responsibility? b) What will you do if the decision of Madonna is to simulate the birth?

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

2. Lawyer Bernardo is employed as in-house counsel by a Makati corporation. On the side he lawyered for widow Linda whom he advised to dissolve her late husband‘s corporation which was steeped in debt. He notarized an extrajudicial settlement of estate stipulating that the estate of Linda‘s deceased husband had no debts. The reality was that the unsecured creditors sued for collection and cancellation of the extrajudicial settlement. Linda alleges, through the same counsel that she is a mere housewife and does not know much about legalities. Bernardo was also living in condominium owned by Linda. a) Did Atty. Bernardo violate the ethical laws for lawyers? Explain. b) If you were the judge in Bernardo‘s disbarment proceedings, Decide.)

1. Lawyer‘s Oath – 5 points. 2. Arellano Law Hymn – 5 pts

3. Architect Aljur Bang is currently law student. His earlier indiscretion led him to marry his girlfriend in a civil ceremony out of jest some 15 years ago. They later separated after their relation deteriorated and he discovered that she was in fact married prior to their marriage. He did not verify the same and they actually parted peacefully and went their separate ways. Since then, he has maintained that he is single. On one occasion at a party, Aljur discussed his situation with Atty. Angel Rivera who was also a party guest.. a. If you were Atty. Rivera, what course(s) of action would you do to uphold the ethical standards of lawyers. 4. Atty. XYZ rented a house of his aunt ABC on a monthly basis. His law office sent Atty. XYZ on a study leave abroad for 1 year. Atty. XYZ left without paying his rent including the previous electrical bills despite his aunts demands. Upon his return to the country, Atty. XYZ forgot further to settle his bills which prompted his aunt to file disbarment proceedings. Atty. XYZ contended that his non-payment was a personal ,matter between members of family and no bearing on his profession as a lawyer? a. Is Atty XYZ‘s contention valid? Explain. b. Cite 2 specific Rules in the CPR, violation of which subjects a lawyer to disciplinary action, although the acts complained of are purely personal r private activities that do not involve the practice of law.

V.

BONUS Answer with precision (10 points)

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

27

PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

LEGAL ETHICS CODE OF PROFESSIONAL RESPONSIBILITY, ‗SC, June 21, 1988

defenseless Integrity, independence & dignity of LP Effective and efficient legal service Candor, fairness, courtesy, good faith, loyalty True, honest, fair, dignified, objective/refrain from impropriety unauthorized practice of law Speedy and efficient Admin of Justice Fidelity, trust and confidence / competence & diligence /zeal Legal developments & participation in activities Preserve secrets and confidences of clients Applicable to lawyers in government

PALE 2011 Sources of legal ethics questions (19002008) Code of Professional Responsibility - 37% Rules of Court - 18% Code of Judicial Conduct - 14% Other Sources - 14% Canon of Professional Ethics - 10% Canons of Judicial Ethics - 1% Code of professional responsibility SIGNIFICANT CPR CORRELATION 1.

General Rule – (Canons 1 & 11) Obey Constitution a nd laws. Respect law, court and judicial officers.

2.

-Making Services available (Canons 2,7,12, 14, 22 & 20) while upholding the legal profession & withdraw o nly for cause and upon notice.

3.

  

Services must be true, honest, fair, dignified & objective. Refrain from impropriety. Rendered with competence, diligence and zeal but within the law. Owe fidelity, trust and confidence, including monies & properties received.



4. 5.      

-Independence, integrity and effectiveness of the LP. -Candor, Fairness & (courtesy, good faith and loyalty to bar, court and client respectively) (Canons 3, 8,9,,10,13,15,16,17,18,19 and 21)

Speedy administration of justice (Canons 4 and 12)

Support legal developments (Canons 5 & 7) Cpr: Duties to society - Canons 1 - 6 Respect for Law & Legal Processes Efficient & Convenient Legal Services True, Honest, Fair, Dignified & Objective Information on Legal Services Participation in Improvement & Reforms in Legal System Participation in Legal Education Program

Uphold constitution; obey laws; respect for law & legal processes Services available to needy, oppressed,

1

BAR

COURT

CLIENT

7

2

3

12

8

3

3 4

10

15

13

16

9 12

17, 18, 19

3

5

7

21

6

TO THE PUBLIC: (CANON 1-6) Canon 1 - Uphold the Constitution, obey laws and promote respect for law and legal processes. a) Not engage in unlawful, dishonest, immoral or deceitful co nduct. b) Not counsel or abet activities that defy the law and lessen confidence in the system c) Not encourage any suit or proceeding or delay any man‘s cause, for any corrupt motive or interest. d) Encourage to avoid, end or settle if it will admit of a fair set tlement.   

SOCIETY

2



11

Rule 1.01 Not engage in unlawful, dishonest, immoral and deceitful conduct. Rule 1.02 Not counsel or abet activities that defy the law and lessen confidence in the system Rule 1.03 Not encourage any suit or proceeding or delay any man‘s cause for any corrupt motive or interest. Rule 1.04 Encourage his client to avoid, end or settle if it will admit of a fair settlement.

Ambulance Chasing – unethical practice of inducing persnal injury victims to bring suit it is disreputable to:

2

12

14, 20, 22

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

Hunt up defects in titles or other causes of action

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

To breed litigation by seeking those with claims for personal injuries To pay or reward directly/indirectly, those who bring in cases to his office To pay people including public officers, admin to bring suit (CPE)

Barratry - is the offense of frequently exciting & stirring quarrels & suits, either at law or otherwise, for any action in any body A lawyer may not be disciplined for non-payment of a debt but may be considered as gross misconduct. Constantino v Saludares, 1993 A lawyer marrying someone while there is a subsisting marriage constitutes grossly immoral conduct as a ground for disbarment. (Cojuanco Jr v Palma, 2005) Canon 2 – Make legal services available in an efficient and convenient manner w/ the independence, integrity and effectiveness of the profession. a) Not reject the defenseless and oppressed, except for valid reasons. b) In case of rejection, still render advice to the extent of safeguarding the rights. c) Not solicit legal business. d) Not charge rates lower than customary, unless warran ted,    

Rule 2.01 Not reject the defenseless & oppressed, except for valid reasons. Rule 2.02 In case of rejection, still render advice to the extent of safeguarding the rights of client. Rule 2.03 Not solicit legal business. Rule 2.04 Not charge rates lower than customary unless warranted.



Rule 3.01 Not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, selflaudatory or unfair statement or claim regarding his qualifications or legal services.  Rule 3.02 In choice of firm name, no false, misleading or assumed name may be used.  Rule 3.03 When a partner accepts a public office, he shall withdraw from the firm and his name dropped from firm name unless the law allows him to practice law currently.  Rule 3.04 Not pay or give anything of value to mass media for publicity or to attract legal business. Canon 4 - Participate in improvement of legal system by initiating and supporting efforts in law reform and in AOJ. Canon 5 - Keep abreast with legal developments, participate in CLE, support efforts to achieve high standards in law schools including practical training of law students and assist in dissemination of information regarding law and jurisprudence. o MCLE is program which requires lawyers to show proof of having undertaken improvement in their legal knowledge as a precondition for renewing their license to practice. Canon 6 - CPR applicable to lawyers in government service in the discharge of their official duties.  Rule 6.01 Primary duty of lawyer engaged in public prosecution is not to convict but to see that justice is done. The suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action.  Rule 6.02  Rule 6.03 After leaving government service, one may not accept engagement or employment in connection with any matter in which he had intervened while in said service. 

In criminal cases, the prosecutor is present for the ff reasons: To protect the interest of the state. To see to it that justice is done. A former government lawyer may appear in a case vs the government unless he is expressly prohibited. A former government lawyer may be prohibited from accepting a legal engagement in the ff: i. In connection with any matter in which he has intervened while in the service. ii. Retired members of judiciary receiving pensions from the government should not practice law where the government is the adverse party or in a criminal case where a government employee is charged in relation to his duties.

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

29

It is indirect advertising & solicitation & is likewise violative of L-C confidentiality when a lawyer over his radio program, encourages indigent party litigants to consult him for free. (In re Tagorda) The practice of law is a profession and not a trade. It is improper to lower you legal rates just because another lawyer has offered a lower legal fee. It is unethical for a lawyer to resort to advertisment as a merchant would advertise his wares. (Director of Religious Affairs v Bayot) Canon 3 – In making legal services available, use only true, honest, fair, dignified and objective information or statement of facts a)

Not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services. b) In choice of firm name, no false, misleading or assumed name may be used. c) Not pay or give anything of value to mass media for publicity or to attract legal business.

PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

TO THE LEGAL PROFESSION (CANON 7-9) Cpr: Duties to the legal profession - canons 7 - 9  Integrated Bar of the Philippines  RC o Membership Dues; o Effect of Non-Payment of Dues; o Voluntary Termination of Membership; o Reinstatement  Upholding the Dignity and Integrity of the Profession  Courtesy, Fairness & Candor Towards Professional Colleagues  No Assistance in Unauthorized Practice of Law

Canon 7 - Uphold the integrity and dignity of the legal profession, and support activities of the integrated bar. a) Lawyer is answerable for knowingly making false stateme nt or suppressing material fact in application for admission to the bar. b) Not support unqualified applicant in respect to character, e ducation, or other relevant attribute c) Not engage in conduct that adversely reflects his fitness to practice law, nor behave in a scandalous manner to discre dit the LP, whether private or public.   

Rule 7.01 Lawyer is answerable for knowingly making false statement or suppressing a material fact in his application for admission to the bar. Rule 7.02 Not support an unqualified applicant in respect to character, education or other relevant attribute. Rule 7.03 Not engage in conduct that adversely reflects his fitness to practice law, nor behave in a scandalous manner to discredit the legal profession, whether private or public.

Canon 8 - Courtesy, fairness and candor towards colleagues and avoid harassing tactics against opposing counsel. a) Not use language which is abusive, offensive or improper. b) Not directly or indirectly encroach upon professional emplo yment of another; however, one can give advice and assi stance to those seeking relief against unfaithful or neglectf ul counsel.  



Rule 8.01 Not use language which is abusive, offensive or improper. Rule 8.02 Not directly or indirectly encroach upon professional employment of another; however, one can give advice and assistance to those seeking relief against unfaithful or neglectful counsel. There is nothing wrong with giving advice or assistance provided there is no conflict of interest & no encroachment on the employment of the other counsel.

b)

k which by law may only be performed by a lawyer in good standing. Not divide or stioulate to divide a fee for legal services with non-lawyers, except: A. There is pre-existing agreement with a deceased par tner or associate, money shall be paid to his estate o r to the persons specified in the agreement. B. Where a lawyer undertakes to complete unfinished le gal business of a deceased lawyer; or C. Where lawyer or law firm includes non-lawyer emplo yees in a retirement plan, even if the plan is based in whole or in part on a profit sharing agreement.

Rule 9.01 Not delegate to unqualified person the performance of a task which by law may only be performed by a lawyer in good standing. Rule 9.02 Not divide or stipulate to divide a fee for legal services with non-lawyers except: 1. There is a pre-existing agreement with a deceased partner or associate, money shall be paid to his estate or to the persons specified in the agreement. 2. Where a lawyer undertakes to complete an unfinished legal business of a deceased lawyer. 3. Where a lawyer or law firm includes non-lawyer employees in a retirement plan, even if the plan is based in whole or in part on a profit sharing agreement.

TO THE COURTS (CANON 10-13) Cpr: Duties to the courts - canons 10 - 13 Candor, Fairness & Good Faith Towards the Courts  Respect for Courts & Judicial Officers  Assistance in the Speedy & Efficient Administration of Justice  Reliance on Merits of Case, Not from Improper Influence Upon the Courts

Canon 10 – Owes candor, fairness and good faith to the court. a) Not do falsehood nor consent to it in court, nor mislead or allow the court to be misled by any artifice. b) Not knowingly misquote or misrepresent the contents of a paper, the language or argument of opposing counsel, or cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that has not been proved. c) Observe rules of procedure and shall not misuse them to defeat the ends of justice.

Canon 9 - Not directly or indirectly assist in the unauthorized practice of law. a) Not delegate to unqualified person the performance of tas CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

 

Rule 10.01 Not do falsehood not consent to it in court, nor mislead nor allow the curt to be misled by any artifice. Rule 10.02 Not knowingly misquote or misrepresent the contents of a paper, the language or argument of opposing counsel, or text of a decision or authority, or

30

PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved. 

A. B.

Rule 10.03 Observe the rules of procedure and shall not misuse them to defeat the ends of justice.

On formal matters, such as mailing, authenticatio n or custody of an instrument and the like; On substantial matters, in cases where his testim ony is essential to the end of justice, in which vent he must, during his testimony, entrust the trial of t he case to another counsel.

Case law - 2005 An officer of the court has the duty to uphold the dignity & authority of the courts & to promote confidence in the fair administration of justice. The first duty of an attorney is not to his client, but to the administration of justice, to which his client‘s success is wholly subordinate. His conduct ought to & must always be scrupulously observant of law & ethics….the lawyer‘s fidelity to his client must not be pursued at the expense of truth & orderly administration of justice. It must be done within the confines of reason & common sense. Canon 11- Observe and maintain respect to court and judicial officers and insist on similar conduct by others. a) Appear in court properly attired. b) Appear punctually at court hearings. c) Abstain from scandalous offensive or menacing l anguage or behavior. d) Not attribute to a judge motives not supported by the record or having no materiality to the case. e) Submit grievances against a judge to the proper authorities only.     

Rule 11.01 Appear in court properly attired. Rule 11.02 Appear punctually at court hearings. Rule 11.03 Abstain from scandalous, offensive or menac9ing language or behavior. Rule 11.04 Not attribute to a judge motives not supported by the record or have no materiality to the case. Rule 11.05 Submit grievances against a judge to the porper authorities only. 

A lawyer may criticize the court provided: i. Bonafide ii. Exercised properly & in the proper forum.

Canon 12 – Exert every effort and consider it a duty to assist in the speedy and efficient AOJ. a) Not appear for trial unless he has adequately prepared hi mself with the law, the facts, the evidence and the order of its preference. He should also be ready with the original d ocuments for comparison to the copies. b) Not file multiple actions for the same cause. c) Not the period lapse without submitting or offering an expl anation for failure, his pleading, memoranda or briefs. d) Not unduly delay a case, impede the execution of a judgm ent or misuse court processes. e) Refrain from talking to his witness during a break or reces s in the trial, while the witness is still under examination. f) Not knowingly assist a witness to misrepresent himself or t o impersonate another. g) Not abuse, browbeat or harass a witness nor needlessly in convenience him. h) Avoid testifying in behalf of his client, except:

Rule 12.01 Not appear for trial unless he has adequately prepared himself with the law, the facts, the evidence & the order of its preference. He should also be ready with the original documents for comparison to the copies. Rule 12.02 Not file multiple actions for the same cause.  Rule 12.03 After obtaining extensions of time to file pleadings, memoranda or briefs, not let the period lapse without submitting the same or offering an explanation for his failure to do so.  Rule 12.04 Not unduly delay a case, impede the execution of a judgment or misuse Court processes.  Rule 12.05 Refrain from talking to his witness during a break or recess in the trial, while the witness is still under examination.  Rule 12.06 Not knowingly assist a witness to misrepresent himself or to impersonate another.  Rule 12.07 Not abuse, browbeat or harass a witness nor needlessly inconvenience him.  Rule 12.08 Avoid testifying in behalf of his client, except: On formal matters, such as the mailing, authentication or custody of an instrument, and the like; or, On substantial matters, in cases where his testimony is essential to the needs of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel. Canon 13 - Rely upon merits of case and refrain from impropriety which tend to influence, or give appearance of influencing the court. a) Not extend extraordinary attention or hospitality to, nor see k opportunity for, cultivating familiarity with judges. b) Not make public statements in media regarding a pending case tending to arouse public opinion for or against a party . c) Not brook or invite interference by another branch or agen cy of the govt in the normal course of judicial proceedings.

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

  

Rule 13.01 Not extend extraordinary attention or hosp itality to, nor seek opportunity for cultivating familiarity with judges. Rule 13.02 Not make public statements in the media r egarding a pending case tending to arouse public opi nion for or against a party. Rule 13.03 Not brook or invite interference by another branch or agency of the government in the normal co urse of judicial proceedings.

31

PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

cio/pr bono cases Prohibited from practicing by reason of his p ublic office If legal aid is sought in a civil case, the l awyer can decline if he believes that the action or defense is not meritorious. He should only maintain actions which are j ust & interpose defenses which he belie ves to be honestly debatable under the l aw.

TO THE CLIENT (CANON 14-22) Cpr: Duties to the clients - Canons 14 - 22 Availability of Service without Discrimination Candor, Fairness & Loyalty RC, Disqualification by Reason of Privileged Communication RPC, Betrayal of Trust by an Attorney or Solicitor – Revelation of Secrets Client‘s Moneys & Properties Fidelity to Client‘s Cause Competence & Diligence Representation with Zeal Within Legal Bounds Attorney‘s Fees RC, Compensation of Services; Agreement as to Fees Case Law, Acceptance Fees & Contingency Fee Agreements RC, Attorney’s Liens RC, Unlawful Retention of Client’s Funds; Contempt RC, Change of Attorneys Preservation of Client‘s Confidences Withdrawal of Services

Canon 14 - Not refuse services to the needy. a) 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. b) Not decline, except for serious and sufficient cause, an ap pointment as counsel de oficio or as amicus curiae or a re quest from the IBP or any of its chapters for free legal aid. c) May refuse to accept representation if: i. He is in no position to carry out the work effectiv ely or competently; ii. He labors under conflict of interest. d) Observe the same standard of conduct governing his relati ons with paying clients.  





Canon 15 – Candor, fairness and loyalty in all his dealings and transactions. a) Ascertain as soon as practicable if there is a conflict of int erest, and shall inform the prospective client. b) Be bound by the rule on privilege communication in respec t to matters disclosed to him by a prospective client. c) Not represent conflicting interest except by written consent of all concerned given after a full disclosure of the facts. d) With a written consent of all concerned, act as mediator, c onciliator or arbitrator in settling disputes. e) When advising client, give candid and honest opinion on t he merits and probable results of the client‘s case. f) Not state nor imply that he is able to influence any public o fficial, tribunal or legislative body. g) Impress compliance with the laws and the principles of fair ness. h) If engaged in another profession or occupation concurrentl y with the practice of law, shall make clear whether he is a cting as a lawyer or in another capacity. 

 

Rule 14.01 Not decline to represent a person solely on ac count of the latter‘s race, sex, creed or status of life, or bec ause of his own opinion regarding the guilt of said person. Rule 14.02 Not decline, except for serious & sufficient cau se, an appoint as counsel de officio or as amicus curiae, o r a request from IBP or any of its chapters for rendition of f ree legal aid. Rule 14.03 Not refuse to accept representation of an indig ent client unless:



He is not in a position to carry out the work e ffectively or competently; He labors under conflict of interest betw een him and the prospective client or be tween present client and the prospective client.



Rule 14.04 Observe the same standard of conduct govern ing his relations with paying clients, as those unable to pay . Some grounds to refuse assignment as coun sel de officio: Has already been assigned too many de offi



 

Rule 15.01 In conferring with a prospective client, shall ascertain as soon as practicable whether the matter involves a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client. Rule 15.02 Be bound by the rule on privileged communication in respect of matters disclosed to him by the prospective client. Rule 15.03 Not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts. Rule 15.04 May act as mediator, conciliator or arbitrator in settling disputes, with the written consent of all concerned. Rule 15.05 When advising client, shall give a candid & honest opinion on the merits and probable results of the client‘s case, neither overstating nor understating the prospects of the case. Rule 15.06 Not state or imply that he is able to influence any public official, tribunal or legislative body. Rule 15.07 Shall impress upon his client compliance with the laws and the principles of fairness. Rule 15.08 If engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity.

The rule on privilege communication does not include matters communicated when there is no lawyer-client relationship or when the matters revealed concern a crime that is yet to be committed. A lawyer is prohibited from representing conflicting interests when: Even after the L-C relation is terminated since this is based on trust & confidence. In the course of

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

32

PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

engagement, both strengths & weaknesses are known to lawyer and the client needs reassurance that these will not be used against him. This will protect an honest lawyer from an unfounded suspicion of unprofessional practice. Canon 16 – Hold in trust all moneys and properties that may come into his possession. a) Account for all money or property collected or re ceived for or from the client. b) Keep the funds of each client separate and apart from his won and those of others kept by him. c) Deliver the funds and property of his client when due and upon demand. However, he has a lien over the funds and may apply as may be necess ary to satisfy his lawful fees and disbursements, giving notice promptly to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for by the Rules of Court. d) Not borrow money from his client unless the clie nt‘s interests are fully protected by the nature of the case or by independent advice. Neither shal l he lend money to client except, when in the inte rest of justice; he has to advance necessary exp enses in a leg matter he is handling for the client .   



Rule 16.01 Shall account for all money or property collected or received for or from the client. Rule 16.02 Shall keep the funds of each client separate and apart from his own and those of others kept by him. Rule 16.03 Shall deliver the funds & property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the RC. Rule 16.04 Not borrow from his client unless the client‘s interests are fully protected by the nature of the case or by independent advice. Neither shall he lend money to a client except, when in the interest of justice; he has to advance necessary expenses in a legal matter he is handling for the client. If a client gives money to his counsel for a specific purpose he must render an accounting of said money. Failure to do so may constitute a ground for dismissal. Failure to return moneys upon demand by client will raise the presumption of malversation on the part of the lawyer.

Canon 17 – Owe fidelity to cause of client and mindful of the trust and confidence reposed in him. Fidelity – The quality of being faithful…. Allegiance, fealty, loyalty, devotion… Canon 18 - Serve with competence and diligence. a) Not undertake a legal service which he knows he is not qu alified to render. However, with the consent of his client, h

b) c) d) 

  

e can get a collaborating counsel who is competent. Not handle any legal matter without adequate protection Not neglect a legal matter entrusted to him, otherwise he s hall be held liable. Keep client informed of the status of his case and shall res pond within reasonable time for request for information.

Rule 18.01 Not undertake a legal service which he knows or should know that he is not qualified to render. However, he may render such service if, with the consent of his client, he can obtain as collaborating counsel a lawyer who is competent on the matter. Rule 18.02 Not handle any legal matter without adequate preparation. Rule 18.03 Not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. Rule 18.04 Shall keep the client informed of the status of his case and shall respond within a reasonable time to the client‘s request for information. Canon 19 – Represent with zeal within the bounds of law. a) Employ only fair and honest means to attain the lawful obj ectives of client. Not threaten, participate and otherwise p resent unfounded criminal charges to obtain an improper a dvantage in any case or proceeding. b) In the course of representation, lawyer received informatio n on client‘s perpetuation of a fraud upon a person or tribu nal, shall promptly ask client to rectify it. Otherwise, he sh ould terminate the relationship in accordance with the Rule s of Court. 





Rule 19.01 Employ only fair & honest means to attain the lawful objectives of his client & shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding. Rule 19.02 In the course of representation, and he receives information that his client has 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 RC. Rule 19.03 Shall not allow his client to dictate the procedure in handling the case.

Canon 20 – Charge only fair and reasonable fees a) Factors in determining fees: i. Time spent and extent of services required; ii. Novelty and difficulty; iii. Importance of subject matter; iv. Skill demanded; v. Probability of losing other employment; vi. Customary charges of similar fees and schedul e of fees of IBP in his chapter; vii. Contingencies and certainty of compensation; viii. Character of employment (occasional or establi shed); ix. Professional standing of lawyer. b) Be entitled to division of fees, in case of referral and with t he consent of client. This is based on work performed and responsibility assumed. c) Not accept any fee, reward, costs, commission, interest, re bate or forwarding allowance or other compensation from anyone other than client, without the full knowledge and co

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

d)

nsent of the client. Avoid controversies with client concerning his compensati on and shall resort to judicial action only to prevent imposit ion, injustice or fraud.



Rule 20.01 Shall be guided by the ff factors in determining his fees: 1. Time spent & extent of the service rendered or required; 2. Novelty & difficulty of questions involved; 3. Importance of the subject matter; 4. Skill demanded; 5. Probability of losing other employment as a result of acceptance of the proffered case; 6. Customary charges for similar services & the schedule of fees of the IBP chapter which he belongs; 7. Amount involved in the controversy & the benefits resulting to the client; 8. Contingency or certainty of compensation; 9. Character of employment whether occasional or established; and, 10. Professional standing of the lawyer.



Rule 20.02 In case of referral and with consent of the client, he shall be entitled to a division of fees in proportion to the work performed & responsibility assumed.



Rule 20.03 Without the full knowledge & consent of client, he shall not accept any fee, reward, costs, commission, interest, rebate or forwarding allowance or other compensation whatsoever related to his professional employment from anyone other than the client.



Rule 20.04 Avoid all controversies with clients concerning his compensation & shall resort to judicial action only to prevent imposition, injustice or fraud.



When lawyer accepts the retainer/fees, it is implied that: 1. He possesses the competence required for the practice of the profession 2. He exerts his best judgment in the defense or prosecution of the cause of his client 3. He will exercise reasonable & ordinary diligence in the performance of his duties 4. He will adequately guard his client‘s interest. Lawsuits for collection of attorney’s fees (suit in assumpsit) should be resorted only to prevent injustice, imposition, or fraud since one working to prevent injustice should himself not be the subject of an injustice. Quantum meruit meaning ―as much as the lawyer deserves‖ considering the reasonable value of the services he has rendered is also referred to as ―ASSUMPSIT‖ is applied when:

1. 2. 3. 4. 5.

There is no agreement as to fees Agreement is invalid for whatever reason other than illegality of the object of the performance When attorney and client disregarded the contract for attorney‘s fees When amount is unconscionable When services are terminated for a just cause

6.

When stipulated fees are in excess as what is provided in law

Canon 21 - Preserve the confidences and secrets even after the A-C relation is terminated. a) Not reveal the confidences or secrets of client except: i. When authorized by client after acquainting him with consequences of disclosure. ii. When required by law. iii. When necessary to collect his fees or to defend himself, his employees or associates or by judic ial action. b) Not use information acquired during the course of employ rd ment, or use the same to his advantage or that of 3 perso n, to the disadvantage of the client and with the latter‘s co nsent and full knowledge of the circumstances. c) Not give information from his files to an outside agency se eking the same for auditing, statistical, bookkeeping, acco unting, data processing, or any similar purpose without the written consent of the client. d) May disclose affairs of the e) May disclose affairs of a client of the firm to partners or as sociates, unless prohibited by the client. f) Adopt measures to prevent those whose services are utiliz ed by him, from disclosing or suing confidences or secrets of the client. g) Avoid indiscreet conversation about a client‘s affairs even with members of his family. h) Not reveal that he has been consulted about a particular c ase except to avoid a possible conflict of interest. 





 

 

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

Rule 21.01 Shall not reveal the confidences or secrets of his client except: 1. When authorized by client after acquainting him of the consequences of the disclosure; 2. When required by law; (NB: a lawyer is proscribed from testifying the theory of the case.) 3. When necessary to collect his fees or to defend himself, his employees or associates or by judicial action. Rule 21.02 Shall not use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a 3rd person, to the disadvantage of his client and unless the client consents with full knowledge of the circumstances. Rule 21.03 Shall not give information from his files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or any similar process, without the written consent of his client. Rule 21.04 May disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client. Rule 21.05 Shall adopt such measures as may be required to prevent those whose services are used by him, from disclosing or using confidences or secrets of the clients. Rule 21.06 Shall avoid indiscreet conversation about a client‘s affairs even with members of his family. Rule 21.07 Shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest.

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

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ATTY. ELBA S. CRUZ

Canon 22 – Withdraw his services only for good cause and upon appropriate notice a) May withdraw his services if: i. Client pursues an illegal or immoral course of c onduct in connection with matter he is handling. ii. Client insists that lawyer pursue conduct violativ e of the canons and rules (CPR). iii. Inability to work with co-counsel will not promot e the best interest of the client. iv. Mental and physical condition of the lawyer ren ders it difficult for him to carry out the employme nt effectively. v. Client deliberately fails to pay the fees for the se rvices or fails to comply with the retainer agree ment. vi. Lawyer is elected or appointed to public office a nd vii. Other similar cases b)

Upon withdrawal or discharge but subject to a retaining lie n,, immediately turn over all papers and property to which his client is entitled, and shall cooperate with his successo r in the orderly transfer of the matter, including information necessary for the proper handling of the matter.



Rule 22.01 May withdraw his services in any of the ff case: Client pursues an illegal or immoral course of conduct Client insists that the lawyer pursue conduct violative of the CPR Inability to work with co-counsel will not promote client‘s best interest Mental or physical condition of lawyer renders it difficult for him to carry out the employment effectively Client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement Lawyer is elected or appointed to public office Other similar cases

1. 2. 3. 4. 5. 6. 7. 

Rule 22.02 Subject to a retaining lien, a lawyer who withdraws or is discharged shall immediately turn over all papers & property to which the client is entitled, & shall cooperate with his successor in the orderly transfer of the matter, including all information necessary for its proper handling.

LAWYER’S OATH (Sec 3 of Rule 138, Rules of Court) a)

Recognize the supreme authority of the RP

b)

Support its constitution, obey laws and legal orders of the duly constituted authorities Do no falsehood nor consent to the doing of any in court

c) d)

e) f)

Not wittingly or unwittingly promote or sue any groundless , false and unlawful sui;, nor give aid nor consent to the sa me Delay no man for money or malice Conduct himself as a lawyer according to the best of his k nowledge and discretion with all good fidelity to the court s and his clients.

DUTIES OF ATTORNEYS (Sec. 20 Rule 138 of the Rules of Court) a)

Maintain allegiance to republic, support the Constitution a nd obey laws

b) c)

Observe and maintain the respect due to courts Only counsel or maintain such actions or proceedings that appear just Only employ means that are true and honourable Maintain inviolate the confidence and preserve the secret s of the clients Abstain from all offensive personality

d) e) f) g) h) i)

Do not encourage commencement or continuance of an a ction or proceeding for any corrupt motive Never to reject the cause of the defenseless or oppressed Present evidence that the law permits, in the defense of a person accused of a crime

GROUNDS FOR SUSPENSION AND DISBARMENT (Sec. 27 of the Rules of Court) 1. 2. 3. 4. 5. 6. 7.

Deceit, malpractice or other gross misconduct Grossly immoral conduct Conviction of as crime involving moral turpitude Violation of the oath Willful disobedience of any lawful; order of a superior cour t Corruptly or willfully appearing as an attorney without auth ority to do so Soliciting cases for purpose of gain (and constitutes malpr actice)

PRACTICE OF LAW (Cayetano vs. Monsod) Any activity in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. To engage in the practice of law is to perfor,m those acts which are characteristic of the profession. Generally, to practice law is to give notice or render any kind of service which device or service requires the use of in any degree of legal knowledge or skill. DISSENT: According to Justice Padilla, criteria is a) Habitually – implies customarily or habitually holding ones elf out to the public as a lawyer. (People v. Villanueva) b) Compensation – presented himself to be in active practice and that his professional services are available for the pub lic for compensation. c) Application of law, legal principle, practice or procedure w hich calls for legal knowledge, training and experience (Ma rtin) d) Attorney-client relationship.

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt

LAWYER-CLIENT RELATIONSHIP (LCR) (Burbe vs. Magulta) a)

b)

c)

LCR was established from the very first moment client ask ed for legal advice regarding the former‘s business. To co nstitute professional employment, it is not essential that th e client employed the attorney professionally on any previ ous occasion. Not necessary that any retainer be paid, promised or char ged; Neither is it material that the attorney consulted did n ot afterward handle the case for which his service had bee n sought. Absence of a written contract will not preclude a professio nal relationship. Documentary formalism is not an essenti al element. It is sufficient that the advice and assistance is sought and received in any manner pertinent to his profes sion. It is an implied acceptance if attorney acting on beha lf of the client and upon the latter‘s request. (Dee v. CA)

RULES OF COURT Rule 36 Sec 1 Judgments, Final Orders & Entry - A judgment or final order determining the merits of the case shall be in writing, personally & directly prepared by the judge, stating clearly the facts & the law on which it is based. It is an infraction for the judge to ask one of the parties to draft the decision & he adopts the same verbatim. Rule 71

Contempt Direct contempt punished summarily.

Defined as “misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court…” ―Disrespectful & threatening language in a memo or pleading filed with the court constitutes direct contempt not indirect contempt.‖ Indirect contempt is to be punished after charge &

Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice Assuming to be an attorney or an officer of the court, and acting as such without authority Failure to obey a subpoena duly served The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. Rule 116 Sec 7 Arraignment & Plea - ―…in localities where such members of the bar are not available, the court may appoint any person, resident of the province & of good repute for probity & ability, to defend the accused.‖ Rule 130 Sec 24 Rules of admissibility on Disqualification by reason of privileged communication - The ff cannot testify as to matters learned in confidence: … an attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon or with view to professional employment, nor can an attorney‘s secretary, stenographer or clerk be examined, without the consent of the client & his employer, concerning any fact the knowledge of which has been acquired in such capacity. Rule 135 Powers & Duties of Courts & Judicial Officers … it shall be lawful for him to prepare & sign his decision in said case anywhere in the Phil. He shall send the same by registered mail to the clerk of court where the case was heard or argued to be filed therein as of the date when the same was received by the clerk, in the same manner as if he had been present in court to direct the filing of the judgment. Rule 137 Disqualification of Judicial Officers - … a judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above.

Rule 138

hearing. Indirect contempt may be gleaned from: Misbehavior of an officer of a court in the performance of his official duties or in his official transactions. Disobedience or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters, attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

Sec 1 Who may practice law? Sec 2 Requirement for eligibility to take the bar exams Sec 5 Additional requirements to take the bar Sec 20 Duties of attorneys Sec 22 Lawyer in lower court is presumed to be lawyer on appeal Sec 24 Compensation Sec 26 Duty to follow procedural requirement upon discharge Sec 27 Grounds for suspension & disbarment Sec 30 Attorney to be heard before removal or suspension

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PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

Sec 33 Standing in court of persons authorized to appear for govt Sec 34 Litigation without an attorney… PRO SE Sec 35 Judge on private practice Sec 36 Amicus Curiae Sec 37 Definition of Retaining Lien

8.

9.

Never to reject, for any consideration personal to himself, the cause of the defenseless & the oppressed In the defense of a person accused of a crime, by all fair & 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 or property, without due process of law

Sec 1 Who may practice law? ―…duly admitted as a member of the bar …. And who is in good & regular standing, is entitled to practice law‖

Sec 22 Lawyer in lower court is presumed to be lawyer on appeal Sec 24 Compensation

Sec 2 Requirement for eligibility to take the bar exams Citizen of the Phil; at least 21 yrs old; good moral character; resident of the Phil; produce before SC satisfactory evidence of GMC, and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Phil

A written contract for services shall control the amount to be paid therefor unless found by the court to be unconscionable or unreasonable. The following may allow client to validly refuse to pay full amount to lawyer:

Sec 5 Additional requirements to take the bar exams i. ii.

Studied law for 4 years & has successfully completed all the prescribed courses in law school officially approved & recognized by the Sec. of Education Before studying law, the applicant must have satisfactorily completed in a recognized or authorized college or university, requiring for admission thereto the completion of a four year High school course. The course prescribed for a bachelors degree in arts or science with any of the following subjects: political science, logic, english, spanish, history & economics.

iii. iv. v. vi.

Sec 26 Duty to follow procedural requirement upon discharge & withdrawal in a court case: Serve a copy of his petition to the client & adverse party Present his petition well in advance of the trial of the action to enable the client to secure the service of another lawyer

Sec 20 Duties of attorneys 1. 2. 3.

4.

5.

6.

7.

Maintain allegiance to the RP & to support the Constitution & obey the laws of the Phil Observe & maintain the respect due to the courts of justice & judicial officers 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 Employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth & honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law Maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client‘s business except from him or with his knowledge & approval Abstain from all offensive personality & to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by justice of the cause with which he is charged Not to encourage ether the commencement or the continuance of an action or proceeding, or delay any man‘s cause, from any corrupt motive or interest

Fee is unconscionable or unreasonable. Both lawyer & client agree to set aside contract Lawyer did not perform his part in the contract Contract is terminated for valid cause without fault on both parties Contract is void Lawyer represents a conflicting interest without client‘s consent

Sec 27 Grounds for suspension & disbarment For any deceit, malpractice, or other gross misconduct By reason of his conviction of a crime involving moral turpitude (including BP22) For any violation of the oath For a willful disobedience of any lawful order of a superior court For corruptly or willfully appearing as an attorney for a party to a case without authority to do so (exception: if he acted in good faith) For soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.  NB A non-lawyer cannot be disbarred. Sec 30 Attorney to be heard before removal or suspension

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

37

PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

Sec 33 Standing in court of persons authorized to appear for govt Sec 34 Litigation without an attorney…

Under the direct supervision & control of a member of the IBP duly accredited by law school All pleadings, motions, briefs, memoranda or other papers signed by supervising lawyer

PRO SE means ―on one‘s own behalf, & without an attorney) … NB a lawyer who has been disbarred may appear to defend himself in a criminal case

Sec 3 Privileged Communication – applied to law student

Sec 35 Judge on private practice

Sec 4 Standards of Conduct & Supervision Standards of professional conduct governing lawyers apply to the law student

General Rule, not allowed to private practice as a member of bar & give advice to client Exception: A judge who merely acted as witness to a document & explained the contents of the document is not practice of law

Rule 139 A Integrated Bar of the Philippines Sec 13 Non-political Bar IBP is strictly non-political, and every activity tending to impair this basic feature is strictly prohibited & shall be penalized accordingly.

Sec 36 Amicus Curiae A friend of the court. An impartial & experienced lawyer who is invited by the court to give an opinion regarding a difficult issue before it. Sec 37 Definition of Retaining Lien Retaining Lien – gives the lawyer the right to retain client‘s money, property & documents that has legally come to his possession until the attorney has been paid all his fees for all his services Charging Lien – gives the lawyer the right to charge a favorable judgment for money and its execution with his fees for services rendered. It is not proper for a lawyer to exercise his right of retention over the documents of the estate of the deceased, when he was engaged as counsel for the administrator of the estate. He is lawyer of the administrator and nor the estate of the deceased. The documents are not owned by the administrator but by the estate, hence he cannot exercise retaining lien over said documents.

Rule 138 A Law Student Practice Rule Sec 1 Conditions for Student Practice Rule Successfully completed 3rd year of a regular 4-year curriculum Enrolled in law school‘s clinical legal education program approved by SC Appear without compensation in any civil, criminal or administrative Representing indigent clients accepted by the legal clinic

Sec 9 Annual Membership Dues As determined by Board of Governors and approved by the Supreme Court 10% of the collection of each chapter shall be set aide as welfare fund for disabled members & compulsory heirs of deceased members.

NB Senior Citizen Act is not applicable to IBP dues,

Rule 139 B Disbarment & Discipline of Lawyers Sec 1 How instituted Who: Supreme Court, IBP, IBP Board of Governors What: Disbarment & suspension; in the case of IBP BG, may initiate & prosecute proper charges How: SC: motu propio; IBP: upon verified complaint of any person; IBPBG: motu prprio; referral by SC, by chapter; and instance of any person Sec 1-8 Procedure outlined. Due process is implied when procedure followed. Sec 18 Proceedings are private & confidential. Final order shall be published. It would be unfair for a lawyer whose case is dismissed since it will be difficult to restore his tarnished image if the final decision is not published.

NB Champertous contract one whereby the lawyer agrees to prosecute suits at his own expense for the recovery of things or property (not sum of money) belonging to or claimed by the client, the latter agreeing to pay the former a portion of thing/property recovered as compensation. A champertous contract is considered invalid.

Sec 2 Appearance CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

38

PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

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ATTY. ELBA S. CRUZ

Other laws NCC, Attorney’s Fees Art 1491 on assignment of property o

NCC, Attorney‘s Fees Art 2208 on exceptions to recovery of fees & expenses of litigation in the absence of stipulation



Constitution, Prohibition of practice of law not appearance by members of Congress Constitution, Qualities of Member of judiciary Constitution, Powers of Supreme Court Labor Code, Non-lawyers to appear before NLRC Art 222 LGC, What Sanggunian members may or may not do?  Special Laws, BP 129 on Reorganizing the Judiciary , Sec 15 Qualifications of RTC judge RA 910 on The Retirement Law for the Judiciary Administrative Cases All cases vs Justices of Appellate Courts & Judges of lower courts fall under exclusive jurisdiction of the Supreme Court

       

  

IBP Board of Governors may initiate & prosecute proper charges against erring lawyers including those in government service The filing of an administrative case against a judge is not a ground for disqualification Trial courts retain jurisdiction over criminal offenses against justices/judges

Contract of Contingent Fee Where the attorney‘s fee is usually a percentage of what may be recovered in the action. It is made to depend on the success in enforcing rights of his client. The limit as to what percent will depend upon the circumstances of each case. A 50% contingent fee is unconscionable depending on the circumstances.

To protect & preserve the legal profession To compel lawyers to comply with the duties & obligations prescribed by the CPR

Disbarment, Other matters SC held that a lawyer who is dismissed in government service for grave misconduct can also be disbarred for the same offense. Suspension from foreign bar can be ground for action in the Phil. Same is not automatic. A conditional pardon merely relieves the lawyer from the penal consequence. The conviction may be ground for suspension/disbarment for inability to maintain GMC. An absolute pardon which wipes out the conviction is a bar to the proceeding for disbarment. He is not entitled to automatic reinstatement & subject to the discretion of the SC. He must show evidence of GMC and fit to practice law.

Forum Shopping Definition & Instances of There is forum shopping when as a result of an adverse o the other opinion in one forum, a party seeks a favorable opinion in another forum. When 2 or more actins instituted are grounded on the same causes, chancing that the other court would render a more favorable decision. Filing a second action in a court without jurisdiction The filing of an action in a court while another action with the same cause is pending in an administrative body. When the lawyer does not disclose that there is a pending appeal when he files for certiorari. Consequences of Summary dismissal of multiple petition or complaint Penalty for direct contempt on the client as well as the lawyer Criminal action for false certification of nonforum shopping Disciplinary action against lawyer under the Rules of Court

Government Lawyers Counsel de Officio appointed according to ff: Defendant is confined in prison & unable to file a bond He is without means to employ an attorney. He is indigent. He desires to be represented by counsel de officio

SC held that government lawyers cannot refuse to perform their duties on the ground that they do not believe on the position taken by the government. They must comply with their duty and oath of office.

Lawyer’s Oath, Significance

Disbarment, Characteristics of Sui generis in nature, not a civil or criminal proceeding Double jeopardy cannot be availed of as a defense It can be instituted motu proprio by Sc or IUBP It can proceed regardless of interest or lack thereof by the complainant It is confidential It is imprescriptible It constitutes due process in itself

Contains the responsibilities, obligations & duties of an officer of the court with rights & powers as important as that of a judge. It is a condensed form of legal ethics.

Legal Ethics

Disbarment, Purpose of To protect the public CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

The branch of moral science listing the duties which a lawyer owes to the public or society, court, his colleagues in the legal profession and to his client. It is important because a lawyer must maintain a high moral standard in performing his duties especially since he occupies a noble and important position in society.

39

PALE BAR EXAMINATION SUGGESTED ANSWERS (2010-2006)

Including: Reviewer for FINALS

ATTY. ELBA S. CRUZ

Mistake of Counsel General Rule: A client is bound by the mistake of his lawyer. Exception: i. The negligence is gross. ii. Application of general rule out rightly deprives one of his property by mere technicality. iii. Client was deprived of due process

In Alonso v IAC, ―…do we apply the law even if it is unjust or do we administer justice even if it is against the law…we do not equivocate. That answer is that we do neither because we are a court both of law and justice. We apply the law with justice for this is our mission and purpose and the scheme of out Republic.‖

Moral Turpitude An act of baseness, vileness, depravity in the private life & social duties which a man owes his fellow man or society in general. It includes everything done that is contrary to justice, honesty, modesty or good morals. These include, among others, robbery, rape, estafa & falsification of documents.

Practice of Law Any activity in or out of court which requires the application of law, legal procedure, knowledge, training & experience….In People v Villanueva… actual & habitual exercise of a lawyer‘s legal knowledge & skill especially in court appearances & p-leadings. This is generally done for compensation. It is a privilege & limited to those with good moral character & possess special qualifications that can be ascertained.

Practicing Lawyer vs. Trial Lawyer Former engages in the practice of law & the latter litigates in court

Res Ipsa Loquitor – Thing speaks for itself A judge may be validly dismissed even without formal investigation if his liability is unquestionable & clear according to the records.

Withdrawal 



By the Client – at any time with or without cause. Just cause is only material in determining the lawyer‘s compensation. The relation is strictly personal & loss of confidence is enough to justify withdrawal by the client. By the Lawyer – he cannot withdraw if it will cause injustice to his client or frustrate the ends of justice. It must be with clients consent or with leave of court , following procedure in Rule 138 Sec 26 RC

Other Matters What is legal is not necessarily moral. Nonetheless, the purpose of legal ethics is to govern ethical & moral behavior of lawyers. The law should be interpreted with the purpose of administering justice.

CMF (A man who dares to waste one hour of time has not discovered the value of life.-by: Charles Darwin)

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