Philippine_Bar_Exams-Legal_Ethics-Questions_and_Answer_1990-2005.pdf

October 17, 2017 | Author: Paolo Antonio Escalona | Category: Prosecutor, Lawyer, Witness, Usury, Judge
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1990 BAR EXAMINATION

Question No. 1: Mrs. Amy Dizon’s husband was killed in a traffic accident. She wants to sue the bus company for damages but she cannot afford a lawyer. She approached Atty. Larry Rio who agreed to handle the case without any retainer’s fee or expenses on her part, on the condition that in case of recovery of damages, he shall get 33% of the award by the court. Is this arrangement valid and permissible? Decide with reasons.

Answer: In the recent case of Angel L. Bautista vs. Atty. Ramon A. Gonzales, Adm. Matter No. 1625, February 12, 1990, the Supreme Court held that the lawyer shall defray all the expenses of the suit, “it is contrary to Canon 42 of the Canons of Professional Ethics which provides that a lawyer may not properly agree with a client to pay or bear the expenses of litigations (See also Tule 16.04, Code of Professional Responsibility). The Court added that “although a lawyer may in good faith, advance the expenses of litigation, the same should be subject to reimbursement.” And, “an agreement whereby an attorney agrees to pay expenses of proceedings to enforce the client’s rights is champertous” and “against public policy especially where, as in this case, the attorney has agreed to carry on the action at his own expenses in consideration of some bargain to have part of the thing in dispute.” The arrangement between Amy Dizon and Atty. Larry Rio, which provides that the latter will handle the case without any retainer’s fee or expenses on her part, can be taken to mean that the lawyer will carry out the case at his own expenses without reimbursement. On the basis of the foregoing decision of the Supreme Court, such an arrangement is invalid. However, the contingent fee contract is not prohibited by the law and is impliedly sanctioned. A contingent fee is however closely supervised by the court to safeguard the client from unjust charges, and its validity depends, in large measure, upon the reasonableness of the amount fixed under the circumstances of the case. A contingent fee of 33% of the amount of recovery may be reasonable if the bus company fights the case until the Supreme Court and the litigations are hard-fought and long drawn: it may be unreasonable if the bus company agrees to compromise. But the fact that a contingent fee is unreasonable does not preclude the lawyer from being paid his fees on quantum merit basis.

Question No. 2: Your services as a lawyer are engaged by John Dizon to defend him from the charges of malversation of public funds before the Sandigan Bayan. John confessed to you that he actually misappropriated the amount charged but she said it was out of extreme necessity to pay for the emergency operation of his wife. Will you agree to defend him? State your reason.

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

Question No. 3: 1. A judge had been seen having a lunch with a litigant with a case pending before him in a court. He was also seen at the race track placing bet on certain horses. How would you evaluate the behaviour of the judge? Explain. 2. Discuss the propriety of a judge standing as sponsor at the wedding of the son of the litigant his court? Answer: 1. The judge behaviour is highly improper. Canon 2 of the Code of Judicial Conduct requires that a judge should avoid impropriety and the appearance of impropriety in all activities. Rule 2.01 of the same code provides that the

judge should so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary. His having lunch with a litigant with a case pending before him in court violated such rule and gives the adverse party cause to complain against his impartiality.

His going to race track to a place a bet on certain horse puts the judiciary personified by him in a bad light. For the personal behaviour of a judge, not only upon the bench but also in everyday life, should be above reproach and free from the appearance of impropriety. His judicial office circumscribes his personal conduct and imposes a number of restrictions, which he must observe faithfully as the price he has to pay for accepting and occupying an exalted position in the administration of justice. 2. For the reason stated above stated, a judge’s standing as sponsor at the wedding of the son of a litigant in his court is highly improper for it gives the impression, rightly or wrongly, that he is disposed to resolve the case in favour of such litigant. Public confidence in the impartiality of the judge is eroded, and the due administration of justice suffers thereby. It is also a violation of the letter and spirit of rule 2.03 of the Code of Judicial Conduct which states that the prestige if judicial office shall not be used or lent to advance the private interest of others; nor convey or permit others to convey the impression that they are in a special position to influence the judge.

Question No. 4: 1) Would it be proper for the judge to accept a donation of a lawyer’s table and chairs for his sala from the local chapter of the Integrated Bar of the Philippines (IBP)? Explain your answer. 2) May a judge properly solicit for his promotion the endorsement of the local chapter of the IBP to the Judicial and Bar Council? Explain your answer.

Answer: 1) It would be proper for a judge to accept the donations of a lawyer’s table and chairs for his sala from the local chapter of the IBP because the donation comes from an organization of lawyers whose duty, among others, is to help in the proper administration of justice. Accepting the donation is not for the personal benefit of the judge but for providing physical facilities for the administration of justice, which is the concern by both the judge and the IBP local chapter. What is prohibited is accepting presents or donations from litigants or from particular lawyers practicing before him.

2) A judge may not properly solicit for his promotion the endorsement of a local chapter of the IBP to the Judicial and Bar Council because it will give the impression that his promotion is not purely on merit, and the judge may feel beholden to the particular officers of the local chapter which may, in the future, influence him in the dispositions of cases handled by such officers as counsels for litigants. Moreover, considering his position, the local chapter officers may not be able to refuse such solicitation even if they believe that he is not qualified for promotions. The judge should stand by his own ability, qualifications and fitness, without exerting extra efforts on his part to influence the local chapter to endorse his promotion. The local chapter should, on its own and without solicitations from the judge, make its own assessment and appraisal of the judge’s qualifications and fitness for promotion, and if it is convinced that the judge possesses the required qualifications, it is the duty of the local chapter to make known such assessment to the Judicial and Bar Council.

Question No. 5: 1) What would you comment be about a judge who, whenever he promulgates a decision, invites representatives of the print and broadcast media to his sala for the purpose of having the promulgation televised, and that in the process, he gives interviews although he does not discuss his personal views on the merits of the case? Explain your answer. 2) How far should a judge allow publicity of the proceedings and decisions of his court? Explain your answer.

Answer: 1) The judge’s conduct is improper; Canon II Rule 2.02 of the Code of Judicial Conduct provides that a judge should not seek publicity for personal vainglory. A judge should conduct proceedings in court with fitting dignity and decorum and in such a manner as to reflect the importance and seriousness of the inquiry to ascertain the truth. Allowing television coverage of the promulgation of the decision would detract the dignity of the court proceedings, degrade the court and create misconception in the public mind. His giving interviews, even if he does not discuss his personal views on the merits of the case, have no other purpose than to seek publicity for personal vainglory, which is prohibited. 2) A judge may allow publicity by letting his actuations as a judge and his decisions speaks for themselves, without any comment on his part. What makes publicity improper is the employment of traditional dignity of the court proceedings and of the judge himself. Good, efficient, speedy and correct administration of justice on his part has a way of publicizing itself

and catching public attention, and the publicity thereby generated is a normal by-product of efficient discharge of his duties, which is proper.

Question No. 6: A lawyer charged his clients P10,000.00 for filing fees pertaining to the complaint he filled in court. He actually spent only P1,000.00. He did not account for the balance. 1) May his client charge him for misconduct as a member of the Philippine Bar? Explain your answer. 2) Suppose that the lawyer should be charge, how and where should the complaint be filled? Explain your answer.

Answer: 1) The client may charged hid lawyer with misconduct for not accounting for the balance of P9,000.00. It is well settled that where the client gives his lawyer money for a specific purpose, such as to pay the docket fees for the filling of an action in court, so much of the money not used for the purpose belongs to the client and the lawyer holds it in trust for him. And it is the lawyer’s duty to promptly account for all the money received from his client. For this reason, the lawyer’s failure to account for the balance of the money not spent for filling fees will render him liable for misappropriation, which is a ground for disbarment. 2) The client may file a verified complain for disbarment against his lawyer. His verified complain shall state clearly and concisely the facts complained of and shall be supported by affidavits of person or persons having personal knowledge of the facts therein alleged and /or by such documents as may substantiate said facts. The client may file complaint directly with the Supreme Court, in which case at least 18 copies thereof shall be filled, and the Supreme Court may refer the complaint to the IBP Boards of Governors for appropriate action, such as assigning the complaint to an investigator, or to the Solicitor General or court officer or judge for investigation when the interest of justice requires. The client may, however, file his complaint, in six copies, with the IBP Board of Governors, which will then assign the case to an investigator for investigation, or with the Secretary of a local chapter of the IBP, which will in turn transmit the same to the IBP Board of Governors from assignment to an investigator. (Rule139-B of the rules of Court).

Question No. 7:

Atty. Chito Subretodo was retained by Buddy Capilla to handle his case in the Securities and Exchange Commission. There is a tax angle so Sobretodo consulted Atty. Romy Collado, a tax expert, and for his assistance shared 50% of the retainer fees with Collado? Is this proper? Explain your answer.

Answer: There is no impropriety in the sharing of attorney’s fees with tax expert Atty. Romy Collado. This delegation of work and not delegation of a case. As long as Atty. Sobretodo is responsible to his client, Buddy Capilla, even if he delegated the research work to atty. Collado, there is no impropriety in said arrangement. What is prohibited by the Code of Professional Responsibility is splitting of Attorney’s fees with a non lawyer.

Alternative Answer: a) The propriety of Atty. Chito Sobretodo consulting Atty. Romy Collado on the tax aspect of the case depends on the circumstances obtaining. The attorney-client relationship existed between Atty. Chito Sobretodo and Buddy Capilla only, and not with Atty. Romy Collado. If Atty. Romy Collado is an assistant, associate or law partner of Atty. Chito Sobretodo and if the client, Budy Capilla, has not prohibited Atty. Chito Sobretodo from consulting his assistant or law partner, then Atty. Romy Collado on the tax angle of the case. As a general rule the employment of Atty. Chito Sobretodo as a lawyer for Buddy Capilla is deemed a retainer of any member of Atty. Sobretodo’s law firm. However, Atty. Romy Collado is an independent lawyer; Atty. Chito Sobretodo cannot properly consult Attorney Romy Collado on the tax angle of the case without the consent of his client, Buddy Capilla, because the consultation will involve revelation of the client’s secrets, privilege communications or affairs, secret or undisclosed. Moreover, Rule 18.01 of the Code of Professional Responsibility provides that a lawyer shall not undertake a legal service which he knows or should know that is not qualified to render, but he may render such service if, with the consent of his clients, he can obtain as collaborating counsel a lawyer who is competent on the matter. Since Atty. Collado has rendered services, Atty. Sobretodo can very well share 50% of his fees with Atty. Collado, the matter of fee

division being between the two lawyers only because the client is not asked to pay additional amount for Collado’s services as tax expert. b) Division of fees among lawyers is allowed provided there is division of labor and the client consents (Rule 20.02, Canon 20). Hence the sharing between Sobretodo and Collado is proper provided the client’s consent is obtained.

Question No. 8: In a civil case before the Regional Trial Court between Mercy Sanchez and Cora Delano, Sanchez engaged the services of the Reyes Cruz and Santos Law Offices. Delano moved for the disqualification of the Reyes Cruz and Santos Law Offices on the ground that Atty. Cruz is an incumbent senator.

Answer: As judge, I will require that the name of Atty. Cruz, an incumbent Senator, be dropped. From any pending filed in court or from any oral appearance for the law firm by any other member of the law firm, and should the law firm refuse, I will disqualify the law firm. My reasons are as follows: Article VI, Sec.14 of the 1877 Constitution provides that “no Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi judicial and other administrative bodies.” What is prohibited is personal appearance of the Senator, Atty. Cruz, and for as long as the Senator does not personally appear in court of Mercy Sanchez, the prohibition does not apply. Personal appearance includes not only arguing or attending a hearing of a case in court but also the signing of pleading and filing it in court. Hence, the Senator should not allow his name to appear in pleadings filed in court by itself or as part of a law firm name, such as Reyes Cruz and Santos Law Offices, under the signature of another lawyer in the law firm, nor should allow the firm name with his name therein to appear as counsel through another lawyer, without indirectly violating the constitutional restriction, because the signature of an agents amounts to a signing by the Senator through another lawyer is in effects his appearance, the office of attorney being originally one of agency, and because the Senator cannot do directly what the Constitution prohibits directly. The lawyer actually appearing for Mercy Sanchez should drop the name of Atty. Cruz from any pleading or from any oral appearance in the court; otherwise the law firm could be disqualified. Moreover, Rule 6.02 of the Code of Professional Responsibility prohibits a lawyer in government from using his public position to promote or advance his private interests, and the Senator’s name appearing in pleadings or in appearances by other lawyers in the law firm’s client, which can only be avoided by dropping the name of the Senator from the firm name whenever it appears in court.

1992 BAR EXAMINATION

Question No. 1: Atty. V. Suarez represented Altamarino in an ejectment case against Orbido. Judgement was rendered in favor of Altamarino and Orbido vacated the property forthwith. Subsequently, a case for annulment of Altamarino’s title over the property subject of the ejectment case was filed by Orbido who is now represented by Atty. Suarez. Altamarino filed a motion for disqualification of Atty. Suarez for representing conflicting interest as the latter was his lawyer in the ejectment case against attorney and client relationship between her and Altamarino had already terminated and that she did not obtain any confidential information regarding Altamarino’s title in handling the ejectment case, which is different from the present case for annulment of title. Rule on the motion for disqualification of Atty. Suarez should be granted.

Answer: The motion for disqualification of Atty. Suarez should be granted. Atty. Suarez violated Canon 14, rule 14.02 prohibiting lawyers from appearing for conflicting interest. Atty. Suarez is opposing his former client in a related suit. Although the ejectment case had already terminated in favor of Altamarino who was his client, he had already required information concerning the ownership of property. An attorney who appears for opposing clients in the same or related actions put himself in that awkward position where he will have to oppose on behalf of the other client. He cannot in all situations give disinterested advice to both clients.

Alternative Answer: Atty. Suarez is not disqualified on the ground of conflicting interest. It is true that the employment of a lawyer in a subsequent case involving former client would result in a conflicting interest if the two cases are related. In the present case however, the two cases are not related. An ejectment case involves issue of physical possession (Possession de facto): whereas the second case involves a question on the issue of ownership or title.

Question No. 2:

Prosecutor Daniel Marquinez was assigned to handle a case for homicide. After interviewing the witnesses for the prosecution and asking them to narrate to him the incident that caused the death of the victim, he came to the conclusions that the accused was really guilty. However, the version of one eyewitness showed that the accused acted in self defence.

If you were the prosecutor, would you place said eyewitness on the witness stand? Why?

Answer: Under the ordinary rules on trial technique, the prosecutor should not place the eyewitness stand. However, based on the real mission of a lawyer who is to assist the court in the administration of justice, the prosecutor is bound to present the eyewitness in order that the court can properly appreciate the evidence and to decide on the real merit of the case. A public prosecutor is a quasi-judicial officer. He is the representative not of an ordinary party to controversy, but of a sovereignty whose obligation to govern at all and whose interest, therefore, in a criminal prosecution is not that it shall win the case but justice shall be done. A prosecutor complies with his missions as a lawyer even if the man he is prosecuting is acquitted in accordance with the law and justice. Canon 6, Rule 6.01 of the Code of Professional Responsibility provides that the primary duty of a lawyer engaged in public prosecution is not to convict but to see that justice is done. The suppressions of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is caused for disciplinary action.

Alternative Answer: If I were the prosecutor, I would not present this eyewitness. This does not involve suppression of evidence. It is true that a public prosecutor’s primary duty is not to convict but to do justice and it is unethical for a prosecutor to convict but to do justice and its unethical for a prosecutor to conceal evidence that is favourable to the accused. In the present case, however, the prosecutor considered the testimony of several witnesses and came to the conclusion that the accused was really guilty. Clearly the prosecutor did not find need of the testimony of the eyewitness who said that the accused acted in self defence. A lawyer or a prosecutor is not duty-bound to present a witness whose credibility is in doubt.

Question No. 3: Atty. Herminio de Pano is a former Prosecutor of the City of Manila who established his own law office after taking advantage of the Early Retirement Law. He was approached by Estrella Cabigao to act as private prosecutor in an estafa case in which she is the complainant. It appears that the said estafa case was investigated by Atty. De Pano when he was still a Prosecutor. Should Atty. Pano accept employment as private prosecutor is said estafa case? Explain.

Answer: Atty. De Pano should not accept the employment as private prosecutor as he will be violating Canon 6, Rule 6.03 of the Code of Professional Responsibility which provides that a lawyer shall not, after leaving government service, accept employment in connection with any matter in which he had intervened while in said service. The restriction against a public official from using his public position as a vehicle to promote or advance his private interests extends beyond his tenure on certain matters which intervened as a public official.

Question No. 4: Atty. Belle Montes is a former partner in the Rosales Law Office which is representing Corporation X before the Securities and Exchange Commission. Atty. Montes who is now practicing on her own, entered her appearance as counsel for Corporation Y in a suit between said corporation and Corporation X. Atty. Montes claims that since she did not personally handle the case of Corporation X when she was still with the Rosales Law Office she will not be representing conflicting interests. Is such argument valid? Explain.

Answer: Atty. Belle Montes will be deemed to be appearing for conflicting interests if she appears for Corporation Y against Corporation X. This question is similar to the case of Philippine Blooming Mills vs. Court of Appeals, November 1989. In the said case, the Philippine Blooming Mills was retainer of the ACCRA Law Office. Three lawyers of ACCRA Law Office separated from said law firm and established their own law office. The three

lawyers were disqualified from appearing for a corporation against the Philippine Blooming Mills. The rule prohibiting appearing for conflicting interests applies to law firms. The employment of one member of a law firms considered as an employment of the law firm and that the employment of the law firm is equivalent to a retainer of the members thereof.

Question No. 5: Judge Dino was transferred to regional trial Court of Pasig after serving as Judge of the Regional Trial Court in Sorsogon. Delighted with her transfer, she immediately assumed her new post. However, she brought with her the records of five cases which are completely heard by her in her former assignment and already submitted for decisions. Thereupon, she prepared the decision in said five cases, by registered mail to her former Clerk of Court. One of the losing parties questioned the authority of the Judge Dino in deciding the cases after she transfer to Pasig. Are the decisions rendered by Judge Dino in the five cases valid? Why?

Answer: The decisions are valid considering that the Regional Trial Court in Sorsogon is co-equal with that of the regional trial Court in Manila. It is assumed of course that the five cases were already submitted for decisions at the time Judge Dino transferred to Manila (Valentine v. Sta. Maria, 55 SCRA 40).

Question No. 6: Gliceria Magat who works as clerk typist in the Dimakali Law Offices wrote a letter to the Supreme Court accusing her employer Atty. Dimakali of violating her honor several times. He would invite her to go out on official business only to bring her Regina Court, a motel in Ermita. There he would force his desires on her. Whenever she remonstrated and fought him, he would threaten to dismiss her. She asked the Supreme Court to disbar that “monster lawyer who thinks nothing of violating the honor and purity of virgins like me.” 1) Is there any ground for disciplining Atty. Dimakali? Explain. 2) Suppose Atty. Dimakali is the Head of the Legal Division of the Department of Agrarian reform. Under the foregoing set of facts, would you advise Ms. Magat to take the same action, that is, ask the Supreme Court to disbar her lawyer boss? Explain your answer.

Answer: 1) Yes, there is a ground for disciplining Atty. Dimakali for his immoral behaviour and abuse of his authority on his lady clerk-typist. This is a plain sexual harassment. 2) Yes, I would advise Ms. Magat to take the same action with the Supreme Court. It has been ruled in Collantes vs. Renomeron, 2000 SCRA 584. Canon 6 of the Code of Professional Responsibility also applies to lawyers in the government service.

Question No. 7: Atty. Cecilio Hilado, a member of the Sangguniang Panlalawigan og Bohol was engaged by Irene Gemora as counsel in a case for malversation of public funds which she filed against City Treasurer Paulino Alvarez. When Hilado accepted the case, City Treasurer Alvarez filed an administrative case against Hidlado for practicing law in violation of Sec 7 of republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) which inter alia states that:”(b) Public Officials, during their incumbency shall not ....(2) engaged in the private practice of their profession unless authorized by the Constitution of law....” Hilado then filed a Motion to dismiss on the Ground that 1) he is very selective in accepting cases and appears in court only outside of sessions, hours of Sangguniang Panlalawigan; and 2) in any event it is the Supreme Court alone, under Art. VIII, Sec 5 of the Constitution that has the power to “promulgate rules concerning pleading, practice and procedure in all courts....” How valid are the arguments of Hilado? Resolve the case.

Answer: The arguments of Atty. Hilado are not valid. 1) Atty. Hilado should not appear in said case which involves a criminal prosecution of city treasurer. Section 90 (b) (2) of the Local Government Code provides: Sec. 90 Practice of Profession. Xxxx b) Sanggunian members may practice their professions, engaged in any occupation, or teach in school except during session hours; provided, that the Sanggunian members who are also members of the bar shall not:

xxxxx (2)Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office. In fairness to the examinee, this question is not proper in legal ethic as it is governed by Local Government Code. 2) While it is true that it is the Supreme Court that promulgated rules concerning pleading, practice and procedure, the matter in questions involves administrative law governing public officials prohibiting practicing law while holding a public office in criminal cases as provided in the aforesaid Section 90 of the Local government Code.

Question No. 8: A complaint was filed with the Integrated Bar of the Philippines (IBP) by Mrs. Remy Rozon against Atty. Matapobre asking that the latter be suspended from the practice of law indefinitely for being a notorious usurer and for filing groundless suits for various sums of money against his victims. Mrs. Razon described the modus operandi of respondent thus: Matapobre would require a prospective borrower to secure a promissory note in bank, if he has none at the moment. Then Matapobre would fill up the notes showing the principal, as well as the interest rate at 20% a month or 120% per annum, plus other charges and attorneys fees. Before maturity of the checks, Matapobre would inquire from the debtor whether his deposit is already funded. If he answers in the negative, which was more often than not, Matapobre would magnanimously assure the debtor that he would forgo presentment of the checks as long as the debt is paid. However, the moment the debt falls due, regardless of whether the checking account is funded, Matapobre would insist on payment. If none is forth coming, Matapobre would file a criminal case against the delinquent debtor for issuance of a bouncing check in violation of Batas Pambansa Blg. 22. Mr. Rozon declared that Matapobre, having victimized several persons and pushed them to brink of penury, has acquired the reputation of being a loan shark, it was only she who had he courage to file charges against the lawyer/usurer. During the investigation before the IBP, Matapobre interposed the following defences: 1) he cannot possibly be charged with usury since the Usury Law has been virtually repealed and the Central Bank allows the imposition of any rate of interest; 2) even assuming that he charges “usurious” rates of interest, the debtor freely assumes the obligation; 3) the charges being preferred against him concern his personal conduct and has nothing to do with the practice of his profession; and 4) the IBP has no jurisdiction over his acts, personal or professional. If at all, it is only the Supreme Court that can discipline him.

How do you dispose of Matapobre’s arguments? Rebut each one in sequence.

Answer: 1) What is in issue in this question is not the violation of the Usury law but the action of Attorney Matapobre in taking undue advantage of borrowers to make it appear that the Bouncing Check Law was violated by his victims. Certainly it is grossly immoral for the lawyer to manipulate the transactions which resulted in charging excessive rates of interests o loans an later threatening them with violation of the Bouncing check law. Canon Rule 1, Rule 1.01 provides that a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. 2) It is not altogether true that the borrowers freely assumed the obligation as it was the lawyer himself who drafted and manipulated the documents and made the borrowers sign them which they did not fully comprehend. 3) The lawyer is liable even for acts not connected in his legal profession. 4) The IBP has jurisdiction to investigate the case through the Grievance Committee under Rule 139 (b) of the Rules of Court.

Question No. 9: In connection with a sensational criminal case, the Public Relation Officer of All Judges Association, Inc. Issued two press releases, one stating that the trial judge should not have granted bail to the accused since evidence of guilt was strong and the other, calling upon said judge to inhibit himself from trying the case since he did not exhibit the cold neutrality of an impartial judge in ruling upon certain motions. Comment on the actuations of the Public Relations Officer who is presumably authorized by the Associations.

Answer: The actuation of the Public Relation Officer of All Judges Association is improper. What the All Judges Association should do is to report the matter to the Supreme Court and file proper damages. The Supreme Court may refer the matter for investigation to a justice of the Court of Appeals. The issuance of the press release is in violation of the rule that charges and investigations against Judges should be confidential in character and should not be published. The Public Relation Officers can even be held in contempt of court.

Furthermore, Rule 2.04 of the Code of Judicial Conduct states that “a judge shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court or administrative agency.” Rule 3.07 of the same Code states that “a judge should abstain from making public comments on any pending case and should require similar restrain on the part of court personnel.”

Question No. 10: The Court Appeals affirmed the judgement of conviction of Atty. Gncho for violation of B.P. Blg. 2 and likewise suspended him indefinitely from the practice of law. There upon Atty. Gancho filed a Motion for Reconsideration assailing the validity of his suspension from the practice of law contending that the Court of Appeals acted as offended party, prosecutor and judge all at the same time.

1) Resolve this motion. 2) Despite the order suspending him from the practice of law, Atty. Gancho still continued, to prosecute the ejectment cases which he himself filed against his tenants. The tenants then questioned the authority of Atty. Gancho to prosecute the cases when he is under suspension.

May Atty. Gancho be allowed to continue appearing in the ejectment cases? Answer: 1) The motion for reconsideration should be denied. It is now: a settled rule that a lawyer found guilty of violation of B.P. Blg. 22 otherwise known as the Bouncing Check Law is a crime involving moral turpitude which is a ground for disbursement. 2) Atty. Gancho may still continue prosecuting the case not as a lawyer but as a party litigant.

Question No. 11: Atty. Nicasio handled a case for Lydia Domondon wherein judgement was rendered in the latter’s favour in the amount of P10,000.00. Upon finality of the judgement, the judgement debtor paid the full amount of P110,000.00 to Atty. Nicasio. However, Atty. Nicasio turned over only P80,000.00 to Lydia Domondon, explaining that he has already deducted the amount of P20,000.00 for his professional services in accordance with their written agreement, and the amount

of P10,000.00 awarded by the court by way of attorney’s fees from the total sum of P110,000.00 received by him from the judgement debtor. Comment on the proprietary of the action of Atty. Nicasio. Answer: The action of Atty. Nicasio in retaining the amount of P10,000.00 as attorney’s fees said amount belongs to his client. The award of attorney’s fees and damages under article 2208, paragraph 10 of the Civil Code refers to damages suffered by the client.

1994 BAR EXAMINATIONS

Question No. 1:

On the day of his arraignment, your client confided in you that he in fact killed the victim for which he was being charged with murder. You had been led to believe Initially that he was just being framed and that another person had committed the crime.

1. How will you advise your client to plead?

2.If he should refuse to heed your advise, what course of action will you pursue?

Answer:

1. I would first inquire fully into the circumstances under which he killed the victim. If I find out that he is guilty as charged. I would advise him to plead guilty. After explaining his constitutional rights and the importance of the plead guilty.

2.If he would refuse to follow my advice, I would still render effective legal assistance to him. I will spare no effort to save him from an unrighteous conviction and to present, by all fair and reasonable means, every defense or mitigating circumstances that the law permits to the end that he may not be deprived of life or liberty but by due process of law legally applied.

Question No. 2:

Atty. Aguirre as counsel de officio for boy Batong Bakal, was able to win an acquittal for Boy who was charged with robbery in band. A year later, Atty. Aguirre discovered that Boy in fact had a lot of money which he had been bragging as part of the loot in the crime which he is acquitted. Knowing that Boy can no longer be prosecuted on the grounds of double jeopardy, Atty. Aguirre sent him a bill for his services as counsel de officio.

Please give your reasoned comments on the ethical CONSIDERATIONS if any is involved in the above case.

Answer:

A counsel de officio is a lawyer appointed by the court to defend an indigent defendant in a criminal case. The lawyer designated as counsel de officio cannot charge the indigent litigant for his professional services. In a sense, there is no contract for legal services between him and the defendant. In the absence of an express or an implied contract there is no obligation to compensate. Suing his client for attorney’s fees might also involve a violation of the confidential nature of a lawyer client relationship.

Question No. 3:

The law firm of Rodriguez, Delfin and Zafra had been in existence for almost 25 years and had built up an excellent reputation and a well heeled clientele. Sometimes last year Partner Zafra died of coronary disease but Rodriguez and Delfin refused to drop his name from the firm name.

May Rodriguez and Delfin insist on keeping the name of Zafra as part of the firm name?

Answer: Yes, they may continue to use the name of Zafra in the firm name, provided that they indicate in all communications that he is deceased. Rule 3.02 of the code of professional responsibility that the continued name of a deceased partner is permissible provided that The firm indicates in all communication that the said partner passed away.

Alternative Answer: They may keep the name of Zafra provided that the consent of the heirs is obtained.

Question No. 4:

During the course of his cross examination, your client had testified to events and circumstances which you personally know to be untrue. If his testimony was given credence and accepted as fact by the court, you are sure to win your clients case. Under the code of professional responsibility, what is your obligation to: a) The Court b) Your client c)The public? Answer:

a) A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall he mislead or allow the court to be misled by any artifice (Rule 10.01, Canon 10, and Code of Professional Responsibility). A lawyer shall not knowingly assist a witness to misrepresent himself or to impersonate other ( Rule 12.06 canon 12 Code of Professional Responsibility)

b) A lawyer who has received information that his client has, in the course of representation, perpetuated a fraud upon a person or tribunal, shall promptly call upon his client to rectify the same, and failing to follow will allow to terminate the

client attorney relationship in accordance with (Rule 19.02 Canon 19 Code of Professional Responsibility).

c) A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct (Rule 1.01 Canon 1 of the code of professional responsibility). A lawyer shall not counsel or abet activities aimed at the defiance of law or at lessening confidence on the legal system (Rule 1.02 Canon 1 Code of Professional Responsibility)

Question No. 5:

The client with whom you have a retainer agreement had not been paying you contrary to your stipulations on legal fees as you continue to appear at hearings in his case. A judgment was finally rendered in your clients favor awarding him the real property in litigation as well as a substantial amount in damages.

As a counsel who had not been paid what steps can you take to protect your interest?

Answer: I will cause charging lien for my fees to be recorded and attached to the judgment in so far as it is for the payment of money in damages. Then I will have the right to collect my fees out of such judgments and execution in issuance pursuance thereof.

Question No. 6:

A verified complaint for disbarment was filed against Atty. Cruz who was accused of misappropriating funds belonging to the complainant. The matter was referred to the IBP which forthwith conducted an investigation through its local chapter. During the pendency of the investigation, the complainant filed an Affidavit of Desistance claiming that Atty. Cruz has already reimbursed him for the funds which he had accused him of unlawfully spending for his own use. Atty. Cruz moved for the dismissal of the complaint. As the hearing officer, how will you react to the motion of Atty. Cruz?

Answer:

The desistance of a complaint in a disbarment proceedings or his withdrawal of the charges against a lawyer does not deprive the court of the authority to proceed and determine the matter. Nor does it necessary result in the dismissal of the complaint, except when, as a consequence of withdrawal or desistance, no evidence is adduced to prove the charges, Since a disbarment proceeding is neither a civil or criminal action but one presented solely for public interest; the fact that the complainant and the respondent have considered the case close, is unimportant.

As, a hearing officer, I will deny the motion of Atty. Cruz and continue the hearing.

Question No. 7:

JG, a known vagrant was defended by Atty. Go in his trial for robbery with homicide. After he had been convicted, he appealed to reverse the decision of the court claiming he was deprived the constitutional right to counsel when the court appointed Atty. Go as counsel de officio in spite of his request to the court that he preferred Atty. Concepcion whom he knew to be an excellent criminal lawyer. Is JG correct?

Answer:

The accused is entitled to a counsel of his choice and a counsel de officio may be appointed for him if he has no counsel de parte. In the case of(People vs Malunsing, 63 SCRA 793), the Supreme Court set aside the judgment of conviction because the court appointed a counsel de officio and the accused insisted that he gets his own lawyer.

Alternative Answer:

JG is not correct. An accused is entitled to be assisted by counsel. To constitute a violation of an accused’s right to counsel of his choice; the accused must inform the trial court of his desire to be defended by a counsel de parte and if a counsel de officio is appointed, he must protest such appointment and the actuation of the

counsel de officio, otherwise he cannot rightly claim that his right was violated. Thus, where a counsel de officio has been assigned to an accused on trial and such counsel has acted without objection from the accused. The latter’s conviction cannot be set aside on the sole ground that his counsel was not of his own choice (People vs Solis, 128 SCRA 217) the said ruling is applicable to this question. While JG expressed his preference to be defended by Atty. Concepcion, he really did not object to the appointment of Atty. Go until after his conviction. Beside if Atty. Concepcion was his counsel of choice, he should have retained him as counsel de parte.

Question No. 8:

Atty. Queliza was convicted of qualified seduction. He was subsequently disbarred at the initiative of the IBP. Before he could complete the service of his sentence, he was given an absolute pardon of the president. He thereupon petitioned the Supreme Court for reinstatement to the practice of law as a legal and logical consequence of the absolute pardon. Is he entitled to reinstatement?

Answer:

An absolute pardon granted to a lawyer who has been previously disbarred for conviction of a crime involving moral turpitude does not automatically entitle him to reinstatement. The matter of his reinstatement is still subject to the discretion of the Supreme Court. He should still show by evidence aside from absolute pardon that he is now a person of good moral character, a fit and proper person to practice law. (In Re: Rovero)

Question No. 9:

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

1. Did the judge act within his discretion in awarding attorney’s fees? 2. As counsel for the plaintiff, are you entitled to receive the attorney’s fee thus awarded in addition to your stipulated attorney’s fees? Answer:

1. A party may recover attorney’s fees by cases of malicious prosecution against him in action for damages against the party responsible therefore( Art 2208(8) civil code) But he must prove not only that he was acquitted in the criminal action, but the person who charged him, knowingly made a false statement of facts to induce the prosecutor to prosecute or that the institution of the criminal action was prompted by a sinister design to vex or humiliate him and to cast upon him dishonor and disgrace. 2. No, attorney’s fees in the concept or as an item of damages are an indemnity sustained by the client, and belong to him.

Question No. 10:

The law firm of Sale, Santiago and Aldeguer has an existing and current retainership agreement with XYZ corporation and ABC company, both of which were pharmaceutical firms, XYZ corporation discovered that a number of its patented drugs had been duplicated and sold in the market under ABC company’s brand names, XYZ corporation turned to the law firm and asked it to bring suit against ABC company for patent infringement on several counts.

What are the ethical considerations in this case and how are you going to resolve them?

Answer:

A lawyer may refuse to accept representation of a client if he labors under conflict of interest between him and the prospective client or between a present client or prospective client ( Rule 14.03 Canon 14 Code of Professional Responsibility). It is unprofessional for a lawyer to represent conflicting facts (Canon 6, Code of Professional Responsibility). A lawyer cannot accept a case against a present client either in the same case or a totally unrelated case.

Question No. 11:

1. May a client dismiss his lawyer at any time? 2. May a lawyer withdraw as counsel at any time? Answer:

1. A client may dismiss his lawyer at any time with or without cause because the relationship is one of trust and confidence, 2. A lawyer may withdraw as counsel only with the consent of the client and with leave of court and only for good cause enumerated in (Rule 22.01 Canon 22 Code of Professional Responsibility). Question No. 12:

Mindful that the law is a profession and not a trade or business; what are the factors must you, as a lawyer consider in charging reasonable compensation for your services?

Answer: 1. a) The time spent and the extent of the services rendered or required; b) The novelty and difficulty of the questions involved; c) The importance of the subject matter; d) The skill demanded; e) The probability of losing other employment as a result of acceptance of the proffered case; f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs; g) The amount involved in the controversy and the benefits resulting to the client form the service; h) The contingency or certainty of compensation; i) The character of the employment, whether occasional or established; and j) The professional standing of the lawyer.( Rule 20.01 Canon 20 Code of Professional Responsibility). Question No. 13:

In a civil case, the defendant discovered that the counsel for plaintiff was used to be a member of the Judicial and Bar Council during whose time the Judge presiding over the case was appointed and confirmed by him. He filed a motion to inhibit the Judge on the ground that latter’s ability to act independently and

judiciously had been compromised and seriously impaired because of his “utang na loob” to the plaintiff’s counsel.

If you were the Judge, how will your rule the motion?

Answer:

I will deny the Motion for Inhibition because every Judge is sworn to upheld the decision of cases in accordance with the law. The fact that the judge was recommended by the JBC which has seven members and deliberated even confidentially does not make the judge even morally indebted to the JBC member who may not even vote for him.

Alternative Answer:

Section 1 Rule 137 of the Rules of Court provides specific grounds where it is mandatory for a Judge to be legally disqualified from sitting in a case. None of those grounds is applicable to the facts given in this case. However, the same rule allows that the Judge may exercise of his sound discretion to disqualify himself from sitting in the case for a just and valid reason. The Supreme Court has held that when a suggestion is made that a judge might be induced to act in favor of one party and against another arising out of circumstances capable of inciting such a state of mind; he should exercise his discretion in a way the people’s faith in the court of justice is not impaired (Masadao and Elizaga Re: Crim Case No, 4954-M 155 SCRA 72).

The fact that the counsel of one of the parties was a member of the Judicial and Bar Council during the time that the Judge was appointed would not by in itself constitute sufficient ground to inhibit himself. However there is a probability that the losing party on the back of his mind that the judge had unmeritoriously tilted the scales of justice against him; It maybe more prudent that the Judge inhibit himself. Question No. 14:

After a study of the records of the case and deciding that the plaintiff was entitled to a favorable judgment, Judge Reyes requested Atty. Sta. Ana for the plaintiff, to prepare a draft decision. Judge Reyes then reviewed the draft decision prepared by Atty. Sta. Ana and adopted its decision for the plaintiff. Judge Reyes saw nothing

unethical in the procedure he would asked the other party to do the same if it were the prevailing party.

Please Comment if Judge Reyes decision was ethical and proper?

Answer:

The procedure of Judge Reyes was unethical because the judge is duty bound to review the case himself; he must personally and directly prepare his decisions and not delegate it to other person especially a lawyer in the case. (Section 1 Rule 36 Rules of Court)

Question No. 15:

While Atty. Lancia was on his way to the office in Makati, he chanced upon a vehicular accident involving a wayward bus and a small Kia whose driver, a Mr. Malas, suffered serious physical injuries. Coming to the succor of the injured Mr. Malas; Atty. Lancia drove him to the nearest hospital. On the wqay to the Hospital Mr. Malas found out that Atty. Lancia was a practicing lawyer In gratitude of his help , Mr Malas retained Atty. Lancia to file a suit against the bus company and its driver.

If you were Atty. Lancia would you accept the case?

Answer:

I will not accept the case if I were Atty. Lancia because it is difficult to dismiss the suspicion that Atty. Lancia had assisted Mr. Alas for the purpose of soliciting legal business. It is not clear from the facts how Mr. Alas learned Atty. Lancia was a practicing lawyer. This could have been only if Atty. Lancia introduced himself as a lawyer. Moreover Atty. Lancia can be utilized as a witness to the case.

1996 BAR EXAMINATION Question No. 1: 1) Define legal ethics. 2) What is the significance of lawyer’s oath?

Answer: 1) Legal ethics is that branch of moral science which treats of the duties which an attorney owes to the court, his client, to his colleagues in the profession, and to the public. 2) “The significance of the oath is that it not only impress upon the attorney his responsibilities but it also stamps him as an officer of the court with rights, powers and oath of a lawyer is a condensed code of legal ethics. It is a source of his obligation and its violation is a ground for his suspension, disbarment or other disciplinary action.” (Agpalo, Legal Ethics, 5th. Edition, p.59)

Question No. 2 1) The Code of Professional Responsibility is to lawyers, as the Code of Judicial Conduct is to members of the bench. How would you characterize the relationship between the judge and the lawyer? Explain. 2) Generally, only those who are members of the bar can appear in court. Are the exclusions to this rule? Explain. 3) Should a lawyer accept a losing case: (a) in a criminal case; (b) in a civil case. Explain.

Answer: 1) The Code of Professional Responsibility requires lawyers to observe and maintained respect for judicial officers (Canon 11). On the other hand, the Code of Judicial Conducts requires judges to be patient, attentive and courteous to lawyers (Rule 3.03). In a word, a lawyer and judge owe each other mutual respect and courtesy.

Alternative Answer: a) The relationship between a judge and a lawyer must be based on independence and self-respect. He must neither be a mindless fawning slave of the judge, nor must he take an attitude of hostility towards the judge. The lawyer must maintain toward the court a respectful attitude and to uphold and protect the dignity of the court. b) Being an officer of the court, the first and foremost duty of a lawyer is to the court. He is bound to obey lawful orders and decisions of the court. Like the court itself, the lawyer is an instrument to advance the ends of justice. Should there be a conflict between the duty to his client and that of the court, he should resolve conflict against his client and obey the lawful orders of the court. On the other hand, judges should be courteous and impartial to counsel. To maintain impartiality, the judge should not associate too much with lawyers. 2) The exceptions to the rule that the only those who are members of the bar can appear in court are the following: a) In the municipal trial court, a party may conduct his litigation in person or with the aid of an agent or friend (Sec. 34, Rule 138). b) In any other court, a party may conduct his litigation personally.(id) c) In criminal proceedings before a municipal trial court in a locality where a duly licensed member of the bar is not available, the court may in its discretion admit or assign a person, resident of the province and of good repute for probity and ability, to aid the defendant in his defence, although the person so assigned is not a duly authorized members of the bar (Sec. 4, Rule 116). d) Any official or other person appointed or designated in accordance with the law to appear for the government of the Philippines shall have all the rights of a duly authored member of the bar to appear in any case in which said government has an interest direct of indirect (Section 33, Rule 138). e) A senior law student who is enrolled in a recognized law school’s clinical education program approved by the Supreme court may appear before any court without compensation, to represent indigent clients accepted by the legal clinic of the law school (Rule 138-A). f) Non-lawyers may appear before the NLRC or any Labor Arbiter if they represent themselves or their labor organization or members thereof (Art.222, Labor Code). g) Under the Cadastral Act, a non-lawyer can represent a claimant before the Cadastral Court Sec. 9, Act. 2259).

(Note: We suggest that any four instances will be sufficient.)

3) a) A lawyer may accept a “losing” criminal case. An accused is presumed to be innocent until his guilt is proven beyond reasonable doubt by procedure recognized by the law. Rule 14.01 of Code of Professional Responsibility provides that a lawyer shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life, or because of his own opinion regarding the guilt of said persons. Otherwise innocent persons might be denied proper defence. b) A lawyer may not accept a “loosing” civil case. Firstly, his signature in every pleading constitutes a certification that there is a good cause to support it and that it is not interposed for delay (Sec. 5, Rule 7, Rules of Court). Secondly, it is the lawyer’s duty to counsel or maintain such actions or proceedings only as appear to him to be just and such defences only as he believes to be honestly debatable under the law (Sec. 20 (a), Rule 138, Rules of Court). Thirdly, h is not to encourage either the commencement or continuance of an action or proceeding or delay in any man’s cause for any corrupt motive or interest (Sec.20 (g), rule 138). Fourthly, he must decline to conduct a civil cause or to make a defence when convinced that it is intended merely to harass or injure the opposite party to work oppression or wrong (Canon 130, Canons of Professional Ethics). If a lawyer were to accept a bad civil case, it will wither be exert his best efforts towards a compromise or it unsuccessful, to advice his client to confess judgement. Alternative Answer: A lawyer may also accept a losing civil case provided that in so doing, he must not engaged in dilatory tactics and must advise his client about the prospects and the advantage of settling a compromise in a case.

Question No. 3 1) Why is a lawyer an “officer of the court?” Explain. 2) Is a lawyer (a) always a notary public; or (b) is a notary public always a lawyer? Explain.

Answer: 1) Lawyers are “officers of the court” because they form part of the machinery of the law for the administration of justice (Hilado v. David, 84 Phil. 569). Under Canon 12 of the Code of Professional Responsibility, the lawyer shall exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. 2) a) A lawyer is not always a notary public. In order to be a notary public, he has to be issued a commission by the Executive Judge of the Court of First Instance (now Regional Trial Court) where he has applied for such commission (Adm. Order No. 6, June 30, 1975).

c) On the other hand, a notary public need not be a lawyer, Sec. 233 of the Revised Administrative Code provides that persons who have completed and passed the study of law in a reputable school or university, or who have passed the examinations for office of justice of the peace or clerk or deputy clerk of court for a period of not less than two years, may also be appointed notaries public. In municipalities and municipal districts where there are no lawyers or persons having the qualifications above specified, or having them, refused to hols such office, the judges may appoint other persons temporarily to exercise the office of notary public who have the qualifications of fitness and morality.

Question No. 4 1) Atty. Z, a Notary public commissioned in Quezon City, attended a wedding at Makati, B requested Z to notarized a deed of sale executed between X and Y who were both in Baguio City. Atty. Z who has a portable notarial seal, notarized the document. Subsequently, X assailed the document alleging that his signature thereon was falsified. X files a case for disbarment against Atty. Z. a) What is the liability of Atty. Z, if any? Explain. b) Where the complaint for disbarment should be filed? 2) Congress woman C is a senior partner in a law firm. Although C is no longer appear in court, she advises clients and corrects the pleadings of her assistants. A political opponent lodged a complaint with the House Committee on ethics contending that Congresswoman C is prohibited by the Constitution to practice law. Will the complaint prosper? Explain.

Answer: 1) a) Atty. Z may be held criminally liable for violating Article 171 (Falsification by Public Officer) of the Revised Penal Code, by making it appear that X and Y appeared and acknowledged having executed the deed of sale before him, when in fact they did so appear or acknowledge. He may also administratively liable for not obeying the laws of the land (Canon 1, Code of Professional Responsibility). Moreover, his jurisdiction as notary is only in Quezon City. b) The complaint for disbarment may be filed with the Supreme Court or with the Board of governors of the Integrated bar of the Philippines, or with the IBP chapter of which Atty. Z is member (Rule 139-B, Rules of Court).

2) b) The complaint will not prosper, Sec. 14, Article IV of the Constitution provides that “No senator or member of the House of the Representatives may personally appears as counsel before any court of justice or before the electoral tribunals, or quasi-judicial and other administrative bodies.” What is prohibited is “personal appearance.” Since the practice of law covers a wide range of activities senators and congressmen are allowed to engaged in the aspects of legal practice such as the giving of legal advice to clients (Pineda, Legal and Judicial Ethics, 1995 ed.,p.20). However, he should not sign any pleading.

Question No. 5 1) Talbog, a small town, has only two practicing lawyers. Jose, a good friend of Judge M, requested the latter to notarize a deed of sale for his farm lot, because the two lawyers of their town charged exorbitant fees. Judge M notarized the document and charged P10.00 as fee. The two lawyers complained to the Supreme Court. a) Will their complaint prosper? Explain b) Can Judge M charge a fee? 2) Atty. X retained by E in case for violation of BP 22 filed by B before the scheduled hearing, Atty. X assured B that E would pay the value of the dishonored check. Elated at the prospect of being paid, B wined and dined Atty. X several times. Atty. X convinced B not to appear at the scheduled hearing. Due to non-appearance of B , the estafa case was dismissed for failure to prosecute. B, however, was never paid. Thus, she filed a case for disbarment against Atty. X. Does the conduct of Atty. X constitute malpractice? Explain.

Answer: 1) a) The complaint will prosper, Circular No 1-90 of the Supreme Court provides that Municipal Circuit Trial Court Judges may act as notaries public ex officio only in the notarization of documents connected with the exercise of their official functions and duties. They may not, as notaries public officio, undertake the preparation and acknowledgement of private documents, contracts and other acts of conveyances which bear no direct relation to the performance of their functions as judges. As an exception, MTC and MCTC judges assigned to municipalities or circuits with no lawyers or notaries public may, in their capacity as notaries public exofficio, perform any act within the competency of a regular notary public, provided that (1) all notarial fees charged shall be for the amount of the government and turned over to the municipal treasurer, and (2) certification be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit. In this case there were two lawyers available in the municipality, only that they were charging exorbitant fees, which is not an exemption to the general rule.

b) As can be seen from Circular No. 1-90 above, the judge, if allowed to perform the functions of a regular notary, may charge a fee, but such fee shall be for the account of the government and turned over to the municipal treasurer. 2) Yes, the conduct of Atty. S constitutes malpractice. A lawyer owes candor, fairness and good faith to the court. He shall not do any falsehood or shall be mislead or allow the court to be misled by any artifice. He owes loyalty to his client. In a case involving similar facts, the Supreme Court found that the lawyer concerned obstructed the administration of justice and suspended him for two years (Cantorne v. Ducusin, 57, Phil. 20).

Question No. 6 1) May a law firm use the name of a deceased partner? Qualify. 2) Y hires the services of Atty. Z in a case where Y is accused of rape. Atty. Z, firmly believes that Y is guilty of the crime of rape. If you were Atty. Z, would you still accept the case? Explain.

Answer: 1) Rule 3.02 of the Code of Professional responsibility provides in part that “The continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased.” However, several justices of the Supreme Court dissented from this rule. 2) I would still accept the case. It is not for me to judge that Y is guilty of the crime. The law presumes him to be innocent, and is entitled to an acquittal unless his guilt is proven beyond reasonable doubt with due process of law. The lawyer’s work is to see to it that due process of law is observed. Otherwise, may accused will be defenceless.

Question No. 7 1) In a hearing before the Court of Tax Appeals, Atty. G was invited to appear as amicus curiae. One of the Judges hearing the tax case is the father of Atty. G. The counsel for the respondent moved for the inhibition of the judge in view of the father-son relationship. Is there merit to the motion? Decide.

2) A group of businessmen formed a corporation, the primary purpose of which is furnish legal advised and service to the subscribers as a collection agency. To accomplish this purpose, the group planned to employ a staff of lawyers to initiate and prosecute collection suits entrusted to it by its clients. The SEC denied registration of the corporation on the ground that it was disqualified to practice law. Is the SEC correct? Discuss briefly.

Answer: 1) There is no merit to the motion. Rule 3.12 of the Code of Judicial Responsibility provides that “A judge should take no part where the judge’s impartiality might reasonably be questioned.” Among the instances for the disqualification of a judge is that he is related to a party litigant within the sixth degree or to counsel within the fourth degree of consanguinity or affinity. But this refers to counsel of the parties. An amicus curiae is supposed to be an experienced and impartial attorney invited by the court to appear and help in the disposition of issues submitted to it. He represents no

party to the case. There is, therefore, no ground to fear the loss of the judge’s impartiality in this case if his son is appointed amicus curiae. Alternative Answer: Yes, there is merit in the motion. Although Atty. G. was appearing only as amicus curiae, his opinion may influence the decision of one of the judges who is his father. Rule 137, par. 1 of the rules of Court does not distinguish whether the lawyer who is related to the judge within fourth degree is appearing as amicus curiae or hired counsel. 2) The SEC is correct. It is well settled that a corporation cannot engaged in the practice of law. Only a natural person may be admitted to the practice of law. (Sec. 1, Rule 138, Rules of Court). A corporation cannot perform the conditions required for membership in the bar, such as possession of good moral character. A corporation cannot practice law directly or indirectly by employing a lawyer to practice for it or to appear for others for its benefit.

Question No. 8 1) May a judge be disciplined by the Supreme Court based solely on a complaint filed by the complainant and the answer of respondent Judge? If so, under what circumstances? What is the rationale behind this power of the Supreme Court? 2) A Judge of the regional Trial Court, notwithstanding the fact that he was facing criminal charges at the time he obtained his appointment, did not disclosed the pendency of the cases either to the President or to the Supreme Court. He claims that: (a) he enjoys presumption of innocence in the pending criminal cases; (b) that the said cases even if sustained after trial do not involve moral turpitude; and (3) before an administrative complaint based on a criminal prosecution can be given due course there must be a conviction by final judgement.

May the Judge be considered as an undeserving appointee and therefore be removed from his office?

Answer: 1) A judge may be disciplined by the Supreme Court based solely on the basis of the complaint filed by the complainant and answer of the respondent judge, under the principles of res ipsa loquitur. The Supreme Court has held that when the facts alleged in the complaint are admitted or are ready how negate the strong inference of evil intent is forthcoming, no further hearing to establish such facts to support a judgement as to culpability of the

respondent is necessary (In Re: Petition for dismissal of Judge Dizon, 173 SCRA 719). 2) He may be considered as undeserving and removed from office. This problem falls quarterly under the decision of the Supreme Court in the case of Court Administrator v. Estacion, 181 SCRA 33, wherein a complaint was filed concerning the appointment of a Regional Trial Court judge notwithstanding the fact that he was then facing criminal charges for homicide and attempted homicide. The judge also claimed that (a) he enjoys the presumption of innocence, (b) the said cases, even if sustained, do not involved moral turpitude, and (c) before an administrative complained based on a criminal prosecution is given due course, there must be a conviction by final judgement. The Supreme Court held: “The argument that he had not yet been convicted and should be presumed innocent is beside the point, and so is the contention that the crimes of homicide and attempted homicide do not involve moral turpitude. The important consideration is that he had a duty to inform appointing authority and this Court of the pending criminal charges against him to enable them to determine on the basis of his record, eligibility for the position he was seeking. He did not discharge that duty. His record did not contain the important information in question because he deliberately withheld and thus effectively hid it. His lack of candor is as obvious as his reason for suppression of such vial fact, which he knew would have been taken into account against him if it had been disclosed. As stressed in the report, it behoves every prospective appointee to the judiciary to appraise the appointing authority of every matter bearing on his fitness for judicial office, including such circumstances as may reflect on his integrity and probity. These are qualifications specifically required of appointees to the judiciary under Article VIII Sec. 7(3) of the Constitution. The fact alone of his concealment of the two criminal cases against him is clear proof of his lack of the said qualifications and renders him unworthy to sit as a judge.” The respondent judge was accordingly removed from office.

Question No. 9 1) In a homicide case, Atty. M was appointed by the Court as counsel de officio for F, the accused. After trial F was acquitted. Atty. M sent F a bill for attorney’s fees. a) Can F be compelled to pay? Explain. b) Can F employ a counsel de parte to collaborate with Atty. M, his counsel de officio? Explain.

2) In a murder trial, Judge to asked searching questions of all the witnesses for the accused prompting Atty. O counsel of the accused, to request Judge T to desist from acting as counsel for the prosecution. The Judge, however, reminded Atty. O that she wanted to determine whether the accused was guilty of the crime charged. Is it proper for Judge T to take an active part on the examination of the accused witnesses? Answer: 1) a) No, F may not be compelled to pay attorney’s fees. A counsel de officio is a lawyer appointed to render professional services in favour of an indigent to render professional services in favour of an indigent client. In the absence of a law allowing compensation, he cannot charge the indigent litigant for his professional services. One of the obligation which the lawyer assumed when he took his oath as a lawyer is to render free legal services when required b the law to do so. The Rules of Court provides a token compensation for an attorney de officio to be paid by the state. He may do so, but if he can afford to employ a counsel de parte, then he is no longer indigent and will not need a counsel de officio. The latter can withdraw as his counsel if he chooses to. 2) No, it is not proper. Rule 3.06 of the Code of Judicial conduct provides that “While a judge may, to promote justice, prevent waste of time or clear up some obscurity, properly intervene in the presentation of evidence during the trial, it should always be borne in mind that undue interference may prevent the proper presentation of the cause or the ascertainment of truth.” The intervention of the judge in a case must be done with considerable circumspection. It must be done sparingly and not throughout trial, which will have the effect of or will tend to build or bolster the case for one of the parties. The reason for the rule is that the judge should not only be impartial but also appear to be impartial.

Question No. 10 1) Judge P decide an annulment of title suit in favour of A. After the decision had become final and executor. A sold property to a realty firm. Judge P, a

good friend of the owner of the realty firm, purchased two lots in the property at a substantial discount. a) Did Judge P violate any provision of the Civil Code with respect to the purchase of a litigated property? b) Did Judge P go against any provision of the Civil Code with respect to the purchase of a litigated property? 2) Justice C recently retired. The parents of the victims of the OZONE Disco tragedy retained him in the case for damages which they filed against the owners of the Disco, Quezon City officials and Quezon City. Can he appear as counsel for the victims’ parents? Explain. 3) Upon being replaced by Justice C, Atty. B, the former counsel of the victims of the Ozone Disco tragedy, was directed toward all the documents in his possessions to Justice c. Atty. B refused, demanding full compensation pursuant to their written contract. Sensing that a favourable judgement was forthcoming, Atty. B filed a motion in court relative to his attorney’s fees, furnishing his former clients with copies thereof. Is Atty. B legally and ethically correct in refusing to turn over the documents and in filing the motion? Explain.

Answer: 1) A) Article 1941 of the Civil Code provides as follows: “Art. 1941. The following persons cannot acquire by purchase, even at a public or judicial auction, either in person or through the mediation of another. X

X

X

X

X

X

X

X

X

X

(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers and employees connected with the administration of justice, the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective function; this prohibition includes the act of acquiring by assignment and shall apply to lawyer with respect to the property and rights which may be the object of any litigation to which they may take part by virtue of the profession.”

In the case of Macariola v. Asuncion, 14 SCRA 77, the Supreme Court held the Article 1491 does not apply where the property was not acquired from any of the parties to the case, or when the litigation is already terminated. In this realty firm was not a party to the case. Moreover, his judgement had already become final and executor; hence the property was no longer in litigation. There is no violation of Article 1941. b) However, in the same case, the Supreme Court held that while the respondent judge may not have violated Art. 1941 of the Civil Code, still, it was improper for him to have acquired the property concerned. He has violated Canon 3 of the Canons of Judicial Ethics which requires that judge’s official conduct should be free from the appearance of improperly, and his personal behaviour, not only upon the bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach. It was unwise and indiscreet of him to have acquired the subject property, because it gives cause for doubt or mistrust in the uprightness of the administration of justice. 2) Section 1 of Republic Act No. 910, as amended provides hat “it is a condition of the pension provided for herein that no retiring justice or judge of a court of record or city or municipal judge during the time that he is receiving the said pension shall appear before any court in any civil case wherein the government or any of its legally instituted officers.” In as much as the case being offered to Justice C is a civil case against not only the disco itself, but also against Quezon City and its officials, he will be violating the aforesaid condition if he appears as counsel for the victim’s parents in the said case. 3) Atty. B is legally and ethically correct in refusing to turn over the documents. He is entitled to a retaining lien which gives him the right to retain the funds, documents and papers of his clients which have lawfully come to his possession until his lawful fees and disbursement have been paid (Sec. 37, Rule 138, Rules of Court, Rule 16.03, Code of Professional Responsibility). Likewise, he is legally and ethically correct in filing a motion in court relative to his fees. He is entitled to a charging lien upon all judgements for the payment of money, and executions issued in pursuance of such judgements, which he has secured in a litigation of his client, from and after the time when the records of the court rendering such judgement or issuing such execution (ibid.)

1998 BAR EXAMINATION Question No. 1 Judge C was appointed MTC Judge in 1993. Subsequently, the Judicial and Bar Council received information that previously he had been dismissed as Assistant City Prosecutor of Manila. It appeared that when he applied for appointment to the Judiciary, his answer to the question in the personal data sheet“Have you ever been retired, dismissed or forced to resign from any employment?” was- “Optional under Republic Act No. 1145.” The truth is, he was dismissed for gross misconduct as Assistant City prosecutor. May he be dismissed as Judge? (5%)

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

Question No. 2 What is your understanding of forum-shopping? What are the possible consequences? (5%)

Answer: Forum-shopping is the improper practice of filling several actions or petitions in the same or different tribunals arising from the same cause and seeking substantially identical reliefs in the hope of winning in one of them. The possible consequences of forum-shopping are: 1) 2) 3) 4)

Summary dismissal of the multiple petition or complaint. Penalty for direct contempt of court on the party and his lawyer. Criminal action for a false certification of non forum shopping. Disciplinary proceeding for the lawyer concerned. (Sec. 5, Rule 7, 1997 Rules of Civil Procedure)

Question No. 3 When Atty. Aldrin received copy of the decision of the court of Appeals, he files a motion for reconsideration using intemperate and disrespectful language with a subtle threat that “knowingly rendering an unjust judgement is punishable under the Revised Penal Code.” The Court of Appeals ordered him to explain why he should not be cited in contempt of court. Instead of complying, he submitted to the Court of Appeals his Petition to Retire from the practice of law which he immediately filed with the Supreme Court after receiving the citation for contempt. May he be allowed to retire from the practice of law? (5%).

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

Question No. 4 Nene approached Atty. Nilo and asked him if it was alright to buy a piece of land which Maneng was selling. What was shown by Maneng to Nene was an Original Certificate of title with many annotations and old patches, to which Nene expressed suspicion. However, Atty. Nilo, desirous of pushing through with the transaction because of the high notarial fee promised to him, told Nene that the title was alright and that the title was alright and that she should not worry since he is an attorney and that he knew Maneng well. He notarized the Deed of Sale and Nene paid Maneng P108,000.00. It turned out that Maneng had previously sold the same property to another person. For the injustice done to Nene, may Atty. Nilo be disciplined? (5%).

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

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

Question No. 5 A lawyer advertised in the newspaper the following: “Can secure annulment of your marriage promptly. Expert in legal separation cases. Consult anytime.” Is the advertisement proper? (5%)

Answer: No. A lawyer in making known his legal services should not use any false, fraudulent, misleading, deceptive, undignified or self-laudatory statements regarding Professional Responsibility, In re Tagorda, 53 Phil. 37). The claim that he can secure annulment of marriage promptly is false and misleading and his claim that he is an expert in legal separation is self-laudatory. The advertisement constitutes improper solicitation and violates the sanctity of the institution of marriage which the States should protect (Ulep v. Legal Clinic, Inc. 221 SCRA 378).

Question No. 6 State the rule on (a) the right of the client to dismiss his lawyer and (b) the prerogative of a lawyer to withdraw as counsel. (5%).

Answer: (a) A client has the right to dismiss his lawyer at any time, with or without just cause. The existence or non-existence of just cause. The existence or nonexistence of just cause is material only for determining the right of the lawyer to compensation for the services rendered. The client’s right to terminate the lawyer’s services springs from the strictly personal and highly confidential nature of the client loses confidence in his lawyer, he has the right to dismiss him. (b) On the other hand, the lawyer does not have an unqualified right to withdraw as counsel. As an officer of the court, he may not withdraw or to be permitted to withdraw as counsel if such withdrawal will work injustice to a

client of frustrate the ends of justice. A lawyer may withdraw at anytime with his client’s written consent. Without such consent, he may withdraw his services only for good because and upon notice appropriate in the circumstances (Canon 22, Code of Professional Responsibility).

Question No. 7 A mayor charged with Homicide engaged your services as his lawyer. Since there is only one witness to the incident, the mayor disclosed to you his plan to kill the lone witness through a contrived vehicular accident. 1) What are the moral and legal obligations to the mayor, and to the authorities? (3%) 2) Should the killing push through and are you certain that the mayor is one responsible, are you under obligation to disclose to the authorities what was confided to you? Is this not a privilege communication between client and attorney? (2%).

Answer: 1) It is the duty of an attorney to divulge the communication of his client as to his announced intention to commit a crime to the proper authorities to prevent the act or to protect the person against whom it is threatened. 2) Public policy and the lawyer’s duty to counsel obedience to the law forbid that an attorney should assist in the commission of a crime or permit the relation of attorney and client to conceal a wrong doing. He owes it to himself and to the public to use his best efforts to restraint his client from doing any unlawful act and if, notwithstanding his advice, his client proceeds to execute the illegal deed, he may disclose it or be examined as to any communication relating thereto. There is privileged communication only as to crimes already committed before its communication to the lawyer.

Question No. 8 A judge, in order to ease his clogged docket, would exert efforts to compel the accused in criminal cases to plead guilty to a lesser offense and advise party litigants in civil cases, whose positions appear weak, to accept the compromise offered by the opposing party. Is the practice legally acceptable? (5%)

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

Question No. 9 Atty. Asilo, a lawyer and a notary public, notarized a document already prepared by spouses Roger and Luisa when they approached him. It stated in the document that Roger and and Luisa formally agreed to live separately from each other and either one can have a live-in partner with full consent of the other. What is the liability of Atty. Asilo if any? (5%).

Answer: Atty. Asilo maybe held administratively liable for violating Rule 1.02 of Code of Professional responsibility. A lawyer shall not counsel of abet activities aimed at defiance of the law or at lessening confidence in the legal system. An agreement between two spouses to live separately from each other and either one could have a live-in partner with full consent of the other, is contrary to law and morals. The ratification by a notary public who is a layer of such illegal or immoral contract or document constitutes malpractice or gross misconduct in office. He should at least refrain from its consumption. (In re Santiago, 70 Phil.661; Panganiban v. Borromeo, 58 Phil. 38 Phil. 367, In re Bucana, 72 SCra 14).

Question No. 10 What is your understanding of quantum merit as attorney’s fee? (5%)

Answer: Quantum merit literally means “as much as he deserves.” It is a measure for the lawyer’s fee in the absence of a contract, or when the fees stipulated in a contract are found unconscionable, or when the lawyer’s services are terminated for cause. The lawyer is entitled to receive what merits for his services, as much as

he has earned. The factors to be taken into consideration are enumerated in Rule 22 of the Code of Professional Responsibility.

Question No. 11 For his failure to appear for trial despite notice Atty. Umali was summarily pronounced guilty of direct contempt and was fined P10,000.00 by judge. Is the Judge correct? (5%).

Answer: The judge is not correct. A lawyer who fails to appear for trials is only liable for indirect contempt, which cannot be punished summarily. (People v. Torio, 118 SCRA 14; Atty. Himiniano D. Silva v. Judge German G. Lee, 169 SCRA 512).

Question No. 12 Ben filed proceedings for disbarment against his lawyer, Atty. Co, following the latter’s conviction for estafa for misappropriating funds belonging to his client (Ben). While the proceedings for disbarment was pending, the President granted absolute pardon in favour of Atty. Co, then moved for the dismissal of the disbarment case. Should the motion be granted? (5%).

Answer: An absolute pardon by the President is one that operates to wipe out the conviction as was as the offense itself. The grant thereof to a lawyer is a bar to a proceeding for disbarment against him, if such proceeding is based solely on the fact of such conviction ( In re Parcasion, 69 SCRA 336). But where the proceeding to disbar is founded on the professional misconduct involved in the transaction which culminated in his conviction, the effect of the pardon is only to relieve him of the penal consequences of his act and does not operate as a bar to the disbarment proceeding, inasmuch as the criminal acts may nevertheless constitute proof that the attorney does not possess good moral character (In re Lontoc, 43 Phil.293).

Question No. 13 Discuss the propriety of a lawyer filing a suit against his client concerning his fees. (5%).

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

Question No. 14 Judge Silva upon seeing a reckless tricycle driver almost hitting a boy by the side of the road gave chase and stopped the tricycle. Judge Silva then confiscated the driver’s license and told him to get it from his office. Was the conduct of Judge Salva proper?” (5%).

Answer: The facts are akin to those in Paguirigan v. Clavano (61 SCRA 411 (1074), where the Supreme Court held: While respondent might have been motivated by a spirit of civicism in cooperating with the city authorities in the enforcement of traffic rules and regulations, the arrest of errant motor vehicle drivers and the confiscation of their licenses are essentially police functions which are specifically vested by law upon law enforcement officers of the government. Respondent as Judge of the City Court will necessarily hear and decide all cases filed in his court regarding such violations and infractions of the Motor Vehicle Law or traffic regulations by the law enforcement officers. It is patent, therefore, that respondent should not have taken upon himself the responsibility of confiscating the license of the motor cab driver but he should have referred the matter to the police. We deemed it relevant to emphasize that the official conduct of a judge should be free from impropriety or any appearance thereof. His personal behaviour in the performance of his official duties and in his everyday life should be beyond approach. By confiscating the driver’s license without issuing any traffic Violation Report (TVR) and losing the same while in his possession, respondent Judge has acted in ), a barangay captain manner unbefitting his high judicial office.

2000 BAR EXAMINATION Question No. 1 X was indicated for murder. As he had no counsel on arraignment, the trial court appointed Atty. A. His counsel de officio. When Atty. A asked X what was his stand, X said he was guilty. X thereupon pleaded guilty. X thereupon pleaded guilty. Trial was thereafter conducted. When the turn of the defence to present evidence came, Atty. A manifested that he was not presenting and that he was submitting the case for decision, praying that X’s plea be considered mitigating. Did Atty. A’s assistance or conduct approximate the competence and diligence which the Code of Professional Responsibility expected of him? Explain. (5%).

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

Question No. 2 D was charged with estafa by C before the barangay for misappropriating the proceeds of sale of jewelry on commission. In settlement of the case , D turned over to the barangay captain, a lawyer, the amount of P2,000.00 with the request that the barangay captain turn over the money to C. Several months passed without C being advised of the status of her complaint. C contacted D who informed her that she (D) had long before turned over the amount of P2,000.00 to the barangay captain who undertook to give the money to her (C). C thus filed a case against the barangay captain who at once remitted the amount of P2,000.00 to C. May the barangay captain be faulted administratively?

Answer: Yes. The Code of Professional Responsibility applies to lawyers who are in the government service. As a general rule, a lawyer who holds a government office may not be disciplined as a member of the bar for misconduct in the discharge of his office as a government official. However, if that misconduct as a government official is of such character as to affect his qualification as a lawyer or to show moral delinquency, then he may be disciplined as a member of the bar on such ground (Dinsay v. Cioco, 264 SCRA 703 (1996). In the case of Penticostes v. Ibanez, SCRA 281 (1999), a barangay captain who failed to remit for several

months the amount given to him for payment of an obligation, was found to have violated the Code of Professional Conduct.

Question No. 3 A town mayor was indicted for homicide through reckless imprudence arising from a vehicular accident. May his father-in-law who is a layer and a Sangguniang Panlalawigan member represent him in court? Reason. (5%).

Answer: Yes. His father-in-law may represent him in court. Under the Sanggunian may engage in the practice of law, except in the following: (1) they shall not appear as counsel before any court in any civil case where in a local government unit or any office, agency or instrumentality of the government is the adverse party; (2) they shall not appear as counsel in any criminal case where in an officer or employee of the national or local government is accused of an offense committed in relation to his office; (3) they shall not collect any fee for their appearance in administrative proceedings including the local government unit of which he is an official; and (4) they shall not use property and personnel of the government except when the Sanggunian member concerned is defending the interest of the government. In this case, the town mayor was indicated for homicide through reckless imprudence, an offense that is not related to his office.

Question No. 4 Atty. A was found guilty of indirect contempt by the Regional Trial Court and summarily suspended indefinitely from the practice of law. Atty. A appealed to the Supreme Court. Is his appeal meritorious? Reason. (5%).

Answer: His appeal is meritorious. A person cannot be summarily penalized for indirect contempt. In indirect contempt, the law requires that there can be a charge in writing duly filed in court and an opportunity to the person charged to be heard by himself or counsel.

Question No. 5 Atty. X filed a notice of withdrawal of appearance a counsel for the accused Y after the prosecution rested its case. The reason for the withdrawal of Atty. X was the failure of accused Y to affix his conformity to the demand of Atty. X for increase in attorney’s fees. Is the ground for withdrawal justified? Explain. (5%).

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

Question No. 6 C filed a verified administrative complaint against Atty. D. In the course of investigation, C presented an affidavit of desistance which she identified on the witness stand. What course of action should the investigator take? Explain. (5%).

Answer: The investigator should continue with the investigation. A disbarment proceeding is sui generis, neither a civil or criminal action. As such, a desistance by the complainant is unimportant. The case may proceed regardless of interest or lack of interest of the complainant (Rayos-Ombac v. Rayos, 285 SCRA 93 (1998). If the evidence on record warrants, the respondents may be suspended or disbarred regardless of the desistance of the complaint. Of course, if the complainant refuses to testify and the charges cannot then be substantiated, the court will have no alternative but to dismiss the case.

Question No. 7 Atty. E entered his appearance as counsel for defendant F in case pending before the regional Trial Court. F later complained that he did not authorize Atty. E to appear for him. F moved that the court suspended Atty. E from the practice of law. May the judge grant the motion? Explain. (5%).

Answer: The judge may grant the motion. Unauthorized appearance is a ground for suspension or disbarment (Sec. 27, Rule 138, Rules of Court).

Alternative Answer: It depends. A lawyer’s appearance for a party without the authority of the latter must be wilful, corrupt or contumacious in order that he may held administratively liable therefor. But if he has acted in good faith, the complaint for suspension will fail. (Garrido v. Quisumbing, 28 SCRA 614 (1969).

Question No. 8 a) What is a champertous contract? Is it valid? (2%) b) Distinguish between a champertous contract and a contingent fee contract. (3%).

Answer: a) A champertous contract is one where the lawyer agrees to conduct the litigation on his own account and to pay the expenses thereof, and to receive as his fee; a portion of the proceeds of the judgement. It is contrary to public policy and invalid because it violates the fiduciary relationship between the lawyer and his client (Bautista v. Gonzales, 182 SCRA 151 (1990). In effect, he is investing in the case with the expectation of making profit. The practice of law is a profession ad not a business venture. b) A contingent fee contract is an agreement in which the lawyer’s fee, usually a fixed percentage of what may be recovered in the action, is made to depend upon the success in the effort to enforce or defend the client’s right. It is a valid agreement. It is different from champertous contract in that the lawyer does not undertake to shoulder the expenses of the litigation.

Question No. 9 a) Define an attorney’s retaining lien. (2%) b) G was appointed administrator of the estate of her deceased father. She engaged the services of Atty. H as her personal counsel to represent her in court proceedings. G later discharged the services of Atty. H. Invoking his retaining lien, Atty. H retained documents bearing on the estate of the decedent of the documents justified? Explain. (3%).

Answer: a) A retaining lien is the right of an attorney to retain the funds, documents and papers of his client which have lawfully come into his possession until his

lawful fees and disbursements have been paid, and to apply such funds to satisfaction thereof (Sec. 37, Rule 138, Rules of Court).

b) The retention of the documents in this case is not justified. Atty. H was the personal counsel of G. He was not the counsel of the estate. The documents bearing on the estate of decedent entrusted by G to him are not properties of G but the estate which is not his client. Atty. H has no right to exercise a retaining lien over such documents.

Question No. 10 a) State the exemption to the rule that the negligence of counsel binds the clients. (2%). b) Section 20, rule 18 of the Rules of Court enumerates nine (9) duties of attorneys. Give at least three (3) of them. (3%).

Answer: a) It is well-settled that the negligence of counsel binds the client. The exception is where the reckless or gross negligence of counsel deprives the client of due process of law or where its application results in the outright deprivation of one’s property through a technicality (Salonga v. Court of Appeals, 269 SCRA 534 (1997), or when the application of the general rule will result in serious injustice (San Miguel Corporation v. Laguesma, 236 SCRA 595 (1994). b) Under Section 20, rule 138, it is the duty of an attorney: 1. To maintained 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 defences only as he believes to be honestly debatable under the law; 4. To employ, for the purpose of maintaining the causes confided to him, such means only as re 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 clients, 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 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 defenceless or oppressed; 9. In the defence of a person accused of crime, by all fair and honourable means, regardless of his personal opinion as to the guilt of the accused, to present every defence that the law permits, to the end that no person may be deprived of life or liberty, but by due process of law.

Question No. 11 Atty. J requested Judge K to be a principal sponsor at the wedding of his son. Atty. J met Judge K a month before during the IBP sponsored reception to welcome Judge K into the community, and having learned that Judge K takes his breakfast at a coffee shop near his (Judge K’s) boarding house, Atty. J made it appoint to be at the coffee shop at about the time that Judge K takes his breakfast. Comment on Atty. J’s act. Do they violate the Code of Professional Responsibility? (5%).

Answer: Yes, his actions violate the Code of Responsibility. Canon 13 of the said Code provides that lawyer shall relay upon the merits of his cause and refrain from any impropriety which tend t influence, or gives the appearance of influencing the court. Rule 13.03 of the same Code provides that a lawyer shall not extend extra ordinary attention or hospitality to, nor seek opportunity for, cultivating familiarity with judges, Atty. J obviously sought opportunity for cultivating familiarity with Judge K by being at the coffee shop where the latter takes his breakfast, and is extending extraordinary attention to the judge by inviting him to be a principal sponsor at the wedding of his son.

Question No. 12 M was criminally charged with violation of a special law. He tried to engage the services of Atty. N. Atty. N believed, however that M is guilty on account of which he declined. Would it be ethical for Atty. N to decline? Explain. (5%).

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

Question No. 13: In a pending labor case, Atty. A files a Position Paper on behalf of his client, citing a Supreme Court case and quoting a portion of the decision therein which he stated reflected the ratio decidendi. However, what he quoted was not actually the Supreme Court ruling but the argument of one of the parties to case. May Atty. A be faulted administratively? Explain. (5%).

Answer: Yes, he may be faulted administratively. A lawyer owes candor, fairness and good faith to the court Rule 10.02 of the Code of Professional Conduct expressly provides that a lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved. To cite an argument of one of the parties as a ratio decidendi of a Supreme Court decision shoes, at least, lack of diligence on the party of Atty. A. (Commission on Election v. Noynoy, 292 SCRA 254 (1998).

Question No. 14: Before he joined the bench, Judge J was a vice-mayor. Judge J resumed writing weekly column in a local newspaper. In his column, Judge J wrote: “I was wondering if the present vice-mayor can shed off his crocodiles hide so that he can feel the clamor of the public for the resignation of hoodlum public officers of which he is one.” When charged administratively, Judge J invoked freedom of expression. Is his defence tenable? Explain. (5%).

Answer:

The judge’s reliance on freedom of expression is untenable. The judge’s vicious writings compromise his duties as judge in the impartial administration of justice. His writings lack judicial decorum which requires the use of temperate, language at all times. The judge should not instigate litigation (Galang v. Santos, 307 SCRA 583 (1999), Royeca v. Animas, 71 SCRS (1976).

Question No. 15: In a contentious transaction of sale and purchase involving real property between X (seller) and Y (Purchaser), whose interests were diametrically opposed to each other, Atty. Z with the knowledge and consent of X and Y, acted as the attorney for both parties. Did Atty. Z commit malpractice? Explain. (5%).

Answer: Rule 15.03 of Code of Professional Responsibility provides that a lawyer shall not represent conflicting interest except by written consent of all concerned given after a full disclosure of the facts. In this case, although Atty. Z acted as lawyer for both X and Y with the knowledge an consent of both, such consent was made in writing, Atty. Z may be held liable for malpractice.

Alternative Answer: In case of In Re: Dela Rosa, 27 Phil. 258 (1914), the Supreme Court held that where a lawyer acted as attorney for both a vendor and a purchaser, whose interest wee diametrically opposed to each other, but either the knowledge and consent of both parties, this did not constitute malpractice under the law. Neither party was deceived by the lawyer, and neither one suffered involuntary damages by reason of his action. Nevertheless, the lawyer’s conduct constituted a practice severely to be condemned.

Question No. 16: Before his appointment to the judiciary, Judge K was the administrator of the estate of his second cousin. After joining the judiciary, could Judge K continue to be the administrator? Explain. (5%).

Answer: No, Judge K may no longer continue to be the administrator of the estate of his second cousin. Rule 5.06 of the Code of Judicial Conduct provides that: “(a) judge should not serve as the executor, administrator, trustee, guardian, or other fiduciary, except for the estate, trust, or person of a member of the immediate

family, and then only if such service will not interfere with the proper performance of judicial duties. “Member of immediate family shall be limited to the spouse and relatives within the second degree of consanguinity.” A second cousin is not a relative within the second degree of consanguinity.

2002 BAR EXAMINATIONS

Question 1:

A. After reading the decision against his client Jose Kapuspalad, Atty. Calmante was convinced that it had a reasonable basis and that he would have difficulty obtaining a reversal. For this reason. Atty. Calmante did not appeal. When Jose learned about the judgment against him, he blamed Atty. Calmante for not taking a timely appeal and filed an administrative complaint for negligence against the latter. Decide the case.

B. What is a lawyer’s duty if he finds that he cannot honestly put up a valid or meritorious defense but his client insist that he litigate? Explain?

Answer:

A. I would rule in favor of Jose Kapuspalad. (In Reontoy v. Ibadit 285 SCRA 88 1988). The Supreme Court found a lawyer to negligent for falling, first of all, to notify his client about the adverse decision and secondly for failing to file an appeal in belief that such appeal would be useless. He thus deprived his client of his right to appeal. If a lawyer cannot contact his client at once after receiving the adverse decision, the prudent step for him to take is to file a notice of appeal, and withdraw it afterwards if his client should decide against the appeal. It is the client’s decision whether or not to appeal.

B. It depends. If it is a criminal case, he may not decline to represent the accused solely on his opinion regarding the guilt of the person ( Rule 14.01 Code of Professional Responsibility).The Supreme Court has held that a counsel de officio has the duty to defend his client no matter how guilty he perceives him tobe(People v. Nadera Jr. 324 SCRA 490). But if the case is a civil case, he should decline to accept the same. In a civil action, the rules and ethics of profession enjoin a lawyer

from taking a bad case. The attorney’s signature in every pleading constitutes a certification that there is a good cause to support it and that it is not imposed to delay. It is the attorney’s duty 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.

Question 2:

Raul Catapang, a law graduate and vice-president for labor relations of XYZ Labor Union, entered his appearance as representative of a member of the union before the Labor Arbiter in a case for illegal dismissal, unpaid wages and overtime pay. Counsel for the Company objected to Raul’s appearance and move for his disqualification on the ground that he is not a lawyer. If you were the Labor Arbiter, how would you resolve the motion? Answer:

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

Question 3:

Determine whether the following advertisements by an attorney are ethical or unethical as the case maybe, opposite each letter and explain.

A. A calling card 2x2 in size, bearing his name in bold print, office, residence and email addresses, telephone and facsimile numbers? B. A business card 3x4 in size, indicating the aforementioned data with his photo 1x1 in size. C. A pictorial press release in a broadsheet newspaper made by the attorney showing him being congratulated by the president of a client corporation for winning a multimillion damage suit against the company in the Supreme Court. D. The same press release made by his client in a tabloid. E. A small announcement in BALITA, a tabloid in Filipino, that the attorney is giving free legal advice for September 2002.

Answer:

A. Ethical- a lawyer in making his legal services, shall use only true, honest, fair, dignified and objective information or statement of facts. (Canon 3 Code of Professional Responsibility). B. Unethical- the size of the card and the inclusion of the lawyer’s photo in it smacks of commercialism. C. Unethical- a lawyer should not resort to indirect advertising such as procuring his photograph to be published in a newspaper in connection with a case he is handling. He should not pay or give something of value to representatives of the mass media in anticipation of, or return for publicity to attract legal business (Rule 3.04 Code of Professional Responsibility). D. Ethical- The lawyer can no longer be held responsible for the action of his client. However, it would be unethical if he knew that his client’s intention to publish it and not to stop it. E. Unethical- the announcement in a newspaper that he will give free legal advise to the indigent, is a form of self-praise (In Re Tagorda).

Question 4:

A. State the rule on whether a client is bound by mistake. B. On account of his mistake, is counsel liable to his client for damages? Answer:

A. A client is bound by the mistakes of his lawyer( Cabales vs Nery 94 SCRA 374 San Miguel Corporation vs Ledesma 236 SCRA 596) B. A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall make him liable ( Rule 18.03 Code of Professional Responsibility). A client who suffers prejudice by reason of his counsel’s inexcusable negligence in the discharge of his duty may file an action for damages against him. However, there must be a showing that had the lawyer exercised due diligence, the client under the facts and the law would have succeeded in recovering from the adverse party or in resisting the claim of latter.

Question 5:

On June 28, 2001, RJ filed with the Supreme Court a petition for prohibition, with a prayer for temporary restraining order/ preliminary injunction, to forestall his removal as chairman and general manager of a government agency, He believed he had a fixed term until January 31, 2004, but there were indications that the new President would replace him. As he had apprehended, an Administrative Order was issued by the Chief Executive On July 2, 2001 recalling RJ’s appointment, shortly thereafter, PT was appointed to the position in question.

On July 3, 2001 RJ filed a motion to withdraw his petition, on the same day, without waiting for the resolution of his motion; he filed another petition with the Regional Trial Court seeking to prevent his removal as chairman and general manager of the government agency. On July 8, 2001 his motion to withdraw the first petition was granted by the Supreme Court without prejudice to his liability, if any for contempt for engaging in forum shopping.

A. Is he guilty of forum shopping? B. Give three Instance of forum shopping?

Answer:

A. RJ is guilty of forum shopping . Forum Shopping is the practice of filing Multiple actions from the same cause of action ( Rule 12.02 of the Code of Professional Responsibility). It is clear that RJ’s petition for prohibition was still pending in the Supreme Court while he filed the same petition in the Regional Trial Court. He should have waited first for the resolution of his motion to withdraw before filing the second petition because he cannot assume that the motion will be granted. B. Instances of Forum Shopping: 1. When, as a result of an adverse opinion in one forum, a party seeks a favorable opinion(other than appeal or certiorari) in another . 2. When he institutes two or more actions or proceeding grounded by a same cause of action, on the gamble that one or more court would make a favorable decision. 3. Filing a second suit in a court without jurisdiction.

4. Filing an action is still pending in an administrative proceeding 5. When counsel omits to disclose the pendency of an appeal, in filing a certiorari case. Question 6:

Atty. CJ handled the case for plaintiff GE against defendant XY. In an action for damages, Judgment was rendered for plaintiff GE. When a writ of execution was issued, The sheriff levied on a 400 square meter lot of defendant XY. Pursuant to their contingent fee contract, plaintiff GE executed a deed of assignment in favor of Atty. CJ of one-half the lot. Atty. CJ accepted the assignment.

A. Is the Contract for contingent fee valid? B. Did Atty. CJ commit any violation of the Code of Professional Responsibility? Answer:

A. A contract for contingent fee is a contract wherein the attorney’s fee, usually a percentage of what may be recovered in the action, is made to depend upon the success of the lawyer in enforcing or defending his clients right it is a valid contract, unlike a champertous contract which is invalid because the lawyer undertakes to shoulder the expenses of the litigation. However the amount of the fee agreed upon maybe reduced by the courts should it be unconscionable or if necessary. 50% of what the client may recover may or may not be unconscionable depending on the factors to be considered in determining the reasonableness of an attorney’s fee.

B. In the case of Daroy vs Abecia 298 SCRA 239 the Supreme Court ruled that the assignment to a lawyer of a portion of the property levied on by the sheriff for the satisfaction of a judgment in favor of his client does not violate Article 1491 of the New Civil Code, If the property was not involved in litigation handled by the lawyer. In this case, since the action held by Atty.CJ was for damages, the property was not apparently involved in the litigation. Hence, his acquisition of the 50% of the same is ethical.

Question 7:

A. May a lawyer decline a request for free legal aid to an indigent accused made by a chapter of the Integrated Bar of the Philippines? B. Will your answer be different if the legal aid is requested in a civil case? Answer:

A. Rule 14.02 of the Code of Professional Responsibility provides that “a lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de officio or as amicus curiae or a request from the Integrated Bar of the Philippines or any of its chapter for rendition of free legal aid. He may, decline such appointment for serious and sufficient cause. For example, he may decline if such appointment will involve conflict of interest with another client. B. My answer will not be exactly the same, because in a civil case, the lawyer can also decline if he believes the action or defense to be unmeritorious. He is ethically bound to maintain only actions and proceedings which appear to him to be just and only such defenses which he believes to be honestly debatable under the law. Question 8:

Six months ago, Atty. Z was consulted by A about a four –door apartment in Manila left by her deceased parents. A complained that her two siblings B and C, who were occupying two units of the apartment were collecting the rentals from the other two units and refusing to give her any part thereof. Atty. Z advised A to first seek the intervention of her relatives and told her that, if this failed he would take legal action as A asked him to do. Today September 22, 2002 B asks Atty. Z to defend him in a suit brought by A against him (B) and C through another counsel.

A. Should Atty. Z accept the case? Why? B. Should Atty. Z tell B that A consulted him earlier about the same case?

Answer:

A. Atty. Z should not accept the case. When A consulted him about his complaint against B and C, a lawyer and client relationship was established between A and Atty. Z. He cannot subsequently represent B against A in a

matter he was consulted about. This constitutes conflict of interest. It does not matter if Atty. Z is not handling the case for A. B. Rule 21.07 of the Code of Professional Responsibility provides that a lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest. In this case, he has to reveal to B that he had been consulted by A on the case that B if offering to retain his services, in order to avoid a possible conflict of interest. Question 9:

When a proceeding for disbarment case is considered sui generis?

Answer:

A disbarment proceeding is considered sui generis or a class by itself, because of the following reason:

1. 2. 3. 4.

It is neither civil nor a criminal proceeding; Double Jeopardy cannot be availed of as a defense; It can be initiated motu proprio by the Supreme Court or by the IBP; It can proceed regardless of conflict of interest or lack of interest of the complainant 5. It is imprescriptible; 6. It is confidential 7. It is in itself due process. Question 10:

Atty. N had an extramarital affair with O, a married woman as a result which begot a child, P. Atty. N admitted paternity of the child P and undertook support him. On the basis of this admission, Is Atty. N subjected to the disciplinary action of the Supreme Court. Why?

Answer:

Yes, In the case of (Tucay vs Tucay 318 SCRA 229). The Supreme Court held that the finding that a lawyer had been carrying on an illicit affair with a married woman is grossly immoral conduct and only indicative of an extremely low regard for the fundamental ethics of the profession.

Question 11:

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

May his suspension abroad be considered a ground for disciplinary action against Atty. La in the Philippines?

Answer:

The suspension of Atty. LA from the practice of law abroad maybe considered as a ground for disciplinary action here if such suspension was based on one of the grounds for disbarment in the Philippines or shows a loss of his good moral character, a qualification he has to maintain in order to remain a member of the Philippine Bar.

Question 12:

Atty. BB borrowed P 30,000 from EG to be paid in six months. Despite the reminders from EG, Atty. BB failed to pay the loan on its due date. Instead of suing in court EG lodged a complaint for failure to pay just debt against Atty. BB. The chapter secretary endorsed the matter to the Commission on Bar Discipline. A Commissioner of the CBD issued an order directing Atty. BB to answer the complaint against him but latter ignored the order. Another was issued for the parties to appear before the Commissioner at a certain date and time but only EG showed up. A third order submitting the case for resolution was likewise ignored by Atty. BB.

A. May Disciplinary Action be taken against Atty. BB for his failure to pay the loan? Why? B. Was Atty. BB justified in ignoring the orders of the Commission on the ground that the Commission had no power to discipline him for the acts done in private capacity? Why?

Answer:

A. In the case of Toldedo vs Abalos 315 SCRA 419 the Supreme Court held that a lawyer may not be disciplined for failure to pay her loan obligation. The remedy is to file an action for collection against her in the regular courts. However, unwarranted obstinacy in evading the payment of debt has been considered as gross misconduct. (Constantino vs. Saludares 228 SCRA 233) B. Atty. BB is not justified in ignoring the orders of the Commission on Bar Discipline. In doing so, he violated his oath of office for disobeying orders of duly constituted authority. Question 13:

In an extrajudicial settlement of the estate of the late Juan Mayaman, the heirs requested Judge Maawain, a family friend, to go over the document prepared by a new lawyer before they signed it. Judge Maawain agreed and even acted as an instrumental witness.

Did Judge Maawain engage in the unauthorized practice of law?

Answer:

Section 35, Rule 138 of the Revised Rules of Court and Rule 5.07 of the Code of Judicial Conduct prohibit a judge from engaging in the private practice of law as a member of the bar giving professional advice to the clients. In the case of (De Castro vs Capulong, 118 SCRA 5) the Supreme Court Ruled that a judge who merely acted as a witness to a document and who explained to the party waiving his rights of redemption over the mortgaged property and the consequence thereof, does not engage himself in the practice of law. This appears to be more applicable to the case of Judge Maawain. He did not give professional advice in anticipation of litigation. He was just asked to review was a deed of extrajudicial settlement of estate. He signed merely as an instrumental witness and not as a legal counsel.

Question 14:

The family of Judge Matrabaho owns a small department store. With his knowledge, an employee of the store posted on the bulletin board of his court an ad for job openings informing the public that applications must be filed in the office of the judge. For this purpose, the applicants would also be interviewed therein. Is the judge liable for misconduct?

Answer:

The judge is liable for misconduct. In the case of (Dionisio vs Escano, 302 SCRA 411). The Supreme Court held that the acts of posting advertisements for restaurant personnel on court bulletin board, using his court address to receive applications, and of screening applicants in his court, institute involvement in private business and improper use of court facilities for the promotion of family business is in violation of the Code of Judicial Conduct. The Restriction Enshrined in Rules 5.02 and 5.03 of the Code of Judicial Conduct on judges which regards their own business interests is based on the possible interference which may be created by their business involvements in the exercise of their judicial duties corrodes the respect and dignity of the courts as a bastion of justice. Judges Must not allow themselves to be distracted from performance of their Judicial tasks by other lawful enterprises.

Question 15:

While Miss Malumanay, a witness for the plaintiff, was under cross examination, Judge Mausisa asked questions alternately with the counsel for the defendant. After four questions by the judge, the plaintiff’s counsel moved that the judged refrain from asking further questions which tended to favor the defense and leave the examination of the witness to the defendants counsel, who was a new lawyer. The Judge explained that he was entitled to ask searching questions.

A. Is the motion tenable? B. Can the judge justify his intervention how?

Answer: A. It depends Rule 3.06 of the Code of Judicial Conduct provides that while a judge may, to promote justice, prevent waste of time or clear up some obscurity, he may properly intervene in the presentation of evidence during the trial. But it should always be borne in mind that undue interference may prevent the proper presentation of evidence of the cause or the ascertainment of the truth. Thus, if in asking four questions alternately with counsel for defendant, Judge Mausisa was only trying to clear up some obscurity. He cannot be accused of undue interference. But if his searching questions were such as to give impression that is already acting as counsel for the defendant that is the time it is improper. B. The judge can justify his intervention on any of the grounds mentioned by the rule to promote justice avoid waste of time or clear up obscurity.

2004 BAR EXAMINATIONS

Question 1:

Under the Code of Professional Responsibility what are the principal obligations of a lawyer towards:

A. B. C. D. E.

The legal profession and the Integrated Bar of the Philippines? His professional colleagues? The development if the legal system? The administration of justice? His client?

Answer:

A. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR (Canon 7 Code of Professional Responsibility). B.

A LAWYER SHALL CONDUCT HIMSELF WITH COURTESY, FAIRNESS AND CANDOR TOWARD HIS PROFESSIONAL COLLEAGUES, AND SHALL AVOID HARASSING TACTICS AGAINST OPPOSING COUNSEL.(Canon 8 Code of Professional Responsibility). C. A LAWYER SHALL PARTICIPATE IN THE DEVELOPMENT OF THE LEGAL SYSTEM BY INITIATING OR SUPPORTING EFFORTS IN LAW REFORM AND IN THE IMPROVEMENT OF THE ADMINISTRATION OF JUSTICE(Canon 4 Code of Professional Responsibility). A LAWYER SHALL KEEP ABREAST OF LEGAL DEVELOPMENTS, PARTICIPATE IN CONTINUING LEGAL EDUCATION PROGRAMS, SUPPORT EFFORTS TO ACHIEVE HIGH STANDARDS IN LAW SCHOOLS AS WELL AS IN THE PRACTICAL TRAINING OF LAW STUDENTS AND ASSIST IN DISSEMINATING INFORMATION REGARDING THE LAW AND JURISPRUDENCE. (Canon 5 Code of Professional Responsibility). D. A LAWYER SHALL PARTICIPATE IN THE DEVELOPMENT OF THE LEGAL SYSTEM BY INITIATING OR SUPPORTING EFFORTS IN LAW REFORM AND IN THE IMPROVEMENT OF THE ADMINISTRATION OF JUSTICE. (Canon 4 Code of Professional Responsibility).

A LAWYER SHALL EXERT EVERY EFFORT AND CONSIDER IT HIS DUTY TO ASSIST IN THE SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE. (Canon 12 Code of Professional Responsibility). E. A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS. (Canon 15 Code of Professional Responsibility).

Question 2:

In the course the judicial proceeding , a conflict of opinions as to particular legal course of action to be taken arose between AB and CD, two lawyers hired by MR XX, a party litigant, to act jointly as his counsel.

How should such problem be resolved, and whose opinion should prevail?

Answer:

When lawyers jointly associated in a cause cannot agree as to any matter vital to the interest of the client, the conflict of opinion should be frankly stated to him for final determination. His decision should be accepted unless the nature of the difference make it impracticable for the lawyers whose judgment has been overruled to cooperative effectively, In this event, it is his duty to ask his client to relieve him (Canon 7 Code of Professional Responsibility).

Question 3:

On the eve of the initial hearing for the reception of evidence for defense, the defendant and his counsel had a conference where the client directed the lawyer to present as principal defense witness two persons whose testimonies were personally known to the lawyer to have been perjured. The lawyer informed his client that he refused to go with the unwarranted course of action proposed by the defendant. But the client insisted on his directive, or else he would not pay the agreed attorney’s fees.

When the case was called for hearing the next morning, the lawyer forthwith moved in open court that he be relieved as counsel for defendant. Both the defendant and the plaintiff’s counsel objected the motion.

A. Under the facts given, is the defense lawyer legally justified in seeking withdrawal to the case? B. Was the motion for relief as counsel made by the defense lawyer in full accord with the procedural requirements for a lawyer’s withdrawal from a court case? Answer:

A. Yes, he is justified, under Rule 22.01 of the Code of Professional Responsibility; a lawyer may withdraw his services “If the client insists that the lawyer pursue a conduct violating the canons and rules in the Code of Professional Responsibility. The insistence of the client that the lawyer present witnesses whom he personally knows to have perjured, will exposed him to criminal and civil liability and violate his duty of candor fairness and good faith to the court. B. No, his actuation is not in accord with the procedural requirements for the lawyer’s withdrawal from the court case, he cannot just do so and leave the client in the cold unprotected. He must serve a copy of his petition upon the

client and the adverse party. He should moreover, present his petition well in advance of the trial of the action to enable the client to secure the services of another lawyer. Question 4:

Upon opening the session of his court, the Presiding Judge noticed the presence of television cameras set up at strategic places in his courtroom and the posting of media practitioners all over the sala with their video cameras. The Judge forthwith issued an order directing the exclusion from the courtroom of all television paraphernalia and further instructing the reporters inside the hall not to operate their “video cams” during the proceedings. The defense lawyers objected to the courts order, claiming that it was in violation of their client’s right to a public trial.

A. In issuing the questioned order, did the Judge act in violation of the rights of the accused to a public trial? B. Did the Judge act in derogation of the press freedom when he directed the exclusion of the television paraphernalia from the courtroom and when he prohibited the news reporters in the courtroom from operating their video cams during the court proceedings? Answer:

A. No, the Judge did not violate the right of the accused to a public trial. A trial is public when anyone interested in observing the manner a judge conducts the proceedings in his courtroom may do so (Garcia vs Domingo 52 SCRA 143). There is to be no ban on the attendance. In the question given, the judge did not bar the attendance, only the use of television paraphernalia and video cameras. B. No, pressed freedom was never transgressed. The serious risks posed to the fair administration of justice by live TV and Radio broadcast, especially when emotions are running high on issues stirred by the case, should be taken into consideration before addressing the issue of press freedom. The right of the accused to a fair trial, not by trial by publicity takes precedence over press freedom as invoked by TV Reporters in the case (Perez vs Estrada 365 SCRA 62). In considering the premise of the judge, He did not act in derogation of press freedom. In an En Banc Resolution dated October 23, 1991 Re: Live TV and Radio coverage of the Hearing of President Corazon C. Aquino’s libel case The Supreme Court ruled:

Considering the Prejudice it poses to the defendants right to due process as well as to a fair and orderly administration of justice, and considering further that freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of court proceedings shall not be allowed. Video footages if court hearings for news purposes shall be restricted to shots of the courtroom, the judicial officers, the parties and their counsel prior to the commencement of official proceedings. No video shots or photographs shall be permitted during the trial proper.

Question 5:

Primo, Segundo and Tercero are co-accused in the information charging them with the crime of homicide. They are respectively represented by Atty. Juan Uno, Jose Dos and Pablo Tres. During the pre-trial conference, Attys. Uno and Dos manifested to the court that their clients’ are invoking an alibi as their defense. Atty. Tres made it known that Primo and Segundo actually perpetrated the commission of the offense charged in the information.

In one hearing during the presentation of the prosecution’s evidence in chief, Atty. Uno failed to appear in court. When queried by the Judge if accused Primo is willing to proceed with the hearing despite his counsel’s absent, Primo give his consent provided that Atty. Dos and Tres would be designated as his joint counsel de officio for that particular act as counsel de officio of accused Primo only for purposes of the scheduled hearing.

Atty. Dos accepted the designation but Atty. Tres Refused.

A. Is there any impediment to Atty. Dos acting as counsel de officio for accused Primo? B. May Atty. Tres legally refuse his designation as counsel de officio

Answer:

A. There is no impediment to Atty. Dos acting as counsel de officio for accused Primo. There is no conflict of interest involved between Primo and his client Segundo; considering that both are invoking an alibi as a defense.

B. Atty. Tres may legally refuse his designation as counsel de officio for accused primo. Since the defense of his client Tercero is that of Primo and Segundo actually perpetrated the offense which they are all charged, there is a conflict of interest if there is consistency in the interests of two or more opposing parties. The test is whether or not in behalf of one client it is the duty to oppose it for other client (Canon 6 Code of Professional Responsibility).

Question 6:

A. Atty. DD services were engaged by Mr. BB as defense counsel in a lawsuit, In the course of the Court Proceedings, Atty. DD discovered that Mr. BB was an Agnostic and a homosexual. By a reason thereof Atty.DD filed a motion to withdraw as counsel without Mr. BB’s express consent. Is Atty. DD’s motion legally tenable?

B. Assume that your friend and colleague, Judge Peter Mahinay. A Regional Trial Court stationed at KL city, would seek your advice regarding his intention to ask the permission of the Supreme Court to act as counsel for and thus represent her wife in the Regional Trial Court of Appari, Cagayan What would be your advice to him?

Answer:

A. No, Atty. DD’s motion is not legally tenable. He has no valid cause to terminate his services. His client, Mr. BB, being an agnostic and homosexual, should not be deprived of his counsel’s representation solely for that reason. A lawyer shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life or because of his own opinion regarding the guilt of the person(Canon 14 Rule 14.01 Code of Professional Responsibility). B. I will advise him against it. Rule 5.07 of the Code of Judicial Conduct expressly and absolutely prohibits judges from engaging in the private practice of law, because of the incompatible nature between duties of a lawyer and a judge. Moreover as a Judge he can influence to a certain extent the outcome of the case even if it is with another court. A judge shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court or administrative agency(Rule 2.04 Code of Judicial Conduct).

Question 7:

A. Upon learning from newspaper reports that bar candidate Vic Pugote passed the bar examinations, Miss Adorable immediately lodged a complaint with the Supreme Court. Praying Vic Pugote be disallowed from taking the oath as a member of the Philippine Bar because he was maintaining illicit relationship with several women other than his lawfully wedded spouse, however from unexplained reasons, he succeeded to take his oath as a lawyer. Later, when confronted with Miss Adorable’s complaint formally; Pugote moved for the dismissal of the case on the ground of it being moot and academic. Should Miss Adorable’s, complaint be dismissed or not?

B. Alleging that Atty. Malibu seduced her when she was sixteen years old, which resulted in her pregnancy and the birth of a baby girl, Miss Magayon filed a complaint for his disbarment seven years after the alleged seduction was committed. Atty. Malibu contended that considering the period of delay that the complaint was file. It can no longer be entertained much less prosecuted since the offense already prescribed. Is Atty. Malibu’s contention tenable?

Answer:

A. It should not be dismissed. Her charge involves a matter of good moral character which is not only a requisite in the admission to the Bar, but also a continuing condition for remaining a member to the Bar. As such admission of Vic Pugote to the Bar does not make it moot and Academic. B. Atty. Malibu’s contention is not tenable. Disciplinary proceedings are Sui Generis. They are neither civil nor criminal proceedings. Its purpose is not to punish the individual lawyer but to safeguard the administration of justice by protecting the court and the public from the misconduct of lawyers and to remove from the profession of law persons whose disregard of their oath of office proves them unfit to continue discharging the trust reposed in them as members of the bar. Disbarment is imprescriptible. Unlike ordinary proceedings, it is not subject to the defense of prescription. The ordinary statute of limitations has no application to disbarment proceedings ( Calo vs Degamo 20 SCRA 1162). Question 8:

A. A disbarment complaint against a lawyer was referred by the Supreme Court to a Judge of the Regional Trial Court for investigation, report and recommendation. On the date set for the hearing of the complaint, the Judge had the case called for trial in open court and proceeded to receive evidence for the complainant, the Judge receive evidence for the complaint. What would you have done if you were the counsel for the respondent lawyer, why? B. Atty. Jarazo filed a civil suit for damages against his business. Associates. After due trial, Judge Dejado rendered the judgment, dismissing Atty. Jarazo complaint. Thereby rendering the judgment final and executory. Thereafter Atty. Jarazo filed a criminal complaint accusing Judge Dejado of rendering a manifestly unjust judgment before the office of the Ombudsman. Will Atty. Jarazo’s complaint against Judge Dejado prosper? Answer:

A. I would object to the holding of a trial in public. Disciplinary proceedings against an attorney are confidential in nature until its termination. The professional success of a lawyer depends almost entirely on his good reputation. If that is tarnished, it is difficult to restore the same. To avoid the unnecessary ruin of a lawyers name, disbarment proceedings are directed to be confidential until their final determination.(Sec. 18 Rule 139-B Rules of Court). B. Atty. Jarazo complaint will not prosper. The rule is that before a civil action or criminal action against a judge for violating Art.204 of the revised penal code(knowingly rendering an unjust judgment) can be entertained, there must be a final and authoritative declaration that the decision is indeed unjust( De Vera vs Pelayo 355 SCRA 281). By not appealing the decision of Judge Dejado to a higher court, Atty. Jarazo cannot prove that there is an authoritative and final declaration that the said decision is unjust. Thus his criminal complaint will not prosper. Question 9:

A. Judge Aficionado was among the several thousands of spectators watching a basketball game at the Rizal Memorial Coliseum who saw the stabbing of referee Maykilling by player Baracco in the course of the game. The criminal case correspondingly filed against Baracco for stabbing of Maykilling was raffled to the Regional Trial court branch presided by Judge Aficionado. Should the Judge sit in Judgment over and try the case against Baracco? B. Atty. Walasunto has been a member of the Philippine Bar for twenty years but has never plied his profession as a lawyer. His sole means of livelihood is selling and buying real estate. In one of the transactions as a real estate broker, he issued a bouncing check. He was criminally prosecuted and subsequently convicted violating B.P. 22. In the disbarment proceedings filed against him, Atty. Walasunto contented that his conviction for violation of B.P. 22 was not a valid ground for disciplinary action against a member of the bar. He further argued that his act in issuing the check was done in

relations to his calling as a real estate broker and not in the relation of the practice of law. Are the contentions of Atty. Walasunto meritorious or not?

Answer:

A. No she should not preside over the case. Rule 3.12(a) of the Code of Judicial Conduct provides that a judge should not take part in any proceedings where the judge has personal knowledge of disputed evidentiary facts concerning the same. B. No, his contentions are not meritorious. In the first place, a ground for disbarment is conviction of a crime involving moral turpitude( Sec. 27 Rule 138, Rules of Court) and violation of B.P. 22 is considered a crime involving moral turpitude( People v. Tuanda, 181 SCRA 692). In the second place Rule 7.03 of the Code of Professional Responsibility provides that a lawyer shall not engage in conduct adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in scandalous manner to the discredit of the legal profession. Additionally Rule 1.01 of the same Code provides that a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

2005 BAR EXAMINATIONS

Question 1:

1. Which of the following need not be verified?

a. b. c. d. e.

Petition for Certiorari. Interpleader. Petition for Habeas Corpus. Answer with compulsory counterclaim. All pleadings under the rules of summary procedure.

2. Which of the following statement is false? a. All administrative cases against erring Justices of the appellate courts and judges of lower courts fall exclusively within the jurisdiction of the Supreme Court.

b. Administrative cases against erring Justice of the Court of Appeals and Sandigan bayan,judges lawyers in the government are not automatically treated in a disbarment case. c.The IBP Board of governors may motu proprio or upon referral by the Supreme Court or by a Chapter Board of Officers, or at the instance of any person, initiate and prosecute against erring lawyers including those in government service. d. filing of an administrative case against the judge is not a ground for disqualification or inhibition.. 3.On which of the following the lawyer is proscribed from testifying as a witness in a case he is handling for a client. a. On the mailing of documents b.On authentication or custody of any instrument. c.On the theory of the case d. On substantial matters in cases where his testimony is essential to the ends of justice

Answer: 1. B and D does not need to be verified 2. B is false 3. C.

Question 2:

Mike Andelantado, an aspiring lawyer, disclosed in his petition to take the 2003 bar examinations that there were to civil cases pending against him for nullification of contract and damages. He was thus allowed to conditionally take the bar and subsequently placed third in the said exams. In 2004, after the two civil cases had been resolved, Mike Adelantado filed his petition to take the lawyers oath and sign the Roll of Attorneys before the Supreme Court. The Office of the Bar Confidant, However had received two anonymous letters; the first alleged that the time Mike Adelantado filed his petition to take the bar, he had two other civil cases pending against him, as well as a criminal case for violation of B.P. 22 the other letter alleged that Mike Adelantado, as Sangguniang Kabataan Chairperson had been signing the attendance sheets of meetings as Atty. Mike Adelantado.

a. Having passed the bar, can Mike Adelantado already use the appellation

Attorney? b. Should Mike be allowed to take his oath and sign the Attorney’s Roll? Answer:

a. No, only those who have been admitted to the Philippine Bar can be called Attorney(Alawin vs Alauya 268 SCRA 628) Passing the bar examination is not sufficient for admission of a person to the Philippine Bar. He still has to take oath of office and sign the Attorney’s Roll as prerequisite for admission. b. No, he should not be allowed to take his oath and sign the Attorney’s Roll(Canon 7 Rule 7.01 Code of Professional Responsibility). Provides that a lawyer shall be answerable knowingly making a false statement or suppressing material facts in connection with his application to the bar. Mr. Adelantado made a false statement in his application to the bar by revealing only that there were two pending civil cases against him, and suppressed material facts that there was also a criminal case pending against him. This is a sufficient ground for him to be denied admission to the Philippine Bar. He also showed lack of good moral character in using the title attorney before admission to the bar. Question 3:

Atty. Kuripot was one of the Town Bank’s valued clients, In recognition of his loyalty to the bank; he was issued a gold credit card with a limit of 250,000 php. After two months. Atty. Kuripot exceeded his credit limit and refused to pay the monthly charges as they fell due. Aside from collection suit,Town Bank also filed a disbarment case against Atty. Kuripot.

In his comment on the disbarment case, Atty. Kuripot insisted that he did not violate the Code of Professional Responsibility, since his obligation to the bank was personal in nature and had no relation his being a lawyer.

A. Is Atty. Kuripot Correct? B. Explain whether Atty. Kuripot should be held administratively liable for his refusal to settle his credit card bill. Answer: A. Atty. Kuripot is not correct. (Canon 7 Rule 7.03 Code of Professional Responsibility).provides that a lawyer shall not engage in conduct that adversely affect his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to discredit the legal profession. B. He may not be administratively liable. The Supreme Court has held that it does not take original jurisdiction of complaints for collection of debts. The creditor’s course of action is civil not administrative in nature and proper

reliefs may be obtained from the regular courts ( Litigio vs Dicon 246 SCRA 9). Although lawyers have been held administratively liable for obstinacy in evading payment of a debt. The facts given do not show obstinacy shown in this case.

Question 4:

You had, taken your oath as a lawyer. The secretary to the president of a big university offered to get you as the official notary public of the school. She explained that, a lot of their student lost their identification card and is required to secure an affidavit of loss before they can issue a new one. She claimed that it will be lucrative for you as more than 30 students lost their identification cards every month. However the secretary wants you to give half of your earning to the secretary of the school.

Will you agree to the arrangement?

Answer;

No, I will not agree (Canon 9 Rule 9.02 Code of Professional Responsibility). Provides; that a lawyer shall not divide or stipulate to divide legal service with persons not licensed to practice law. The secretary is not licensed to practice law and is not entitled to practice law and not entitled to a share of the fees for notarizing affidavits, which is a legal service.

Question 5:

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

Is his excuse tenable?

Answer:

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

The prohibition refers to both actual gambling and mere presence in gambling casinos. A judge personal behavior, not only in the performance of judicial duties, but also in his everyday life, should be beyond reproach.

With regard to going to cockpits, the Supreme Court held that Verily it is plainly despicable to see a judge inside a cockpit or any gambling establishments more so to see him bet therein. It is an unbecoming of a Judge and undoubtedly impairs the respect due to him. Ultimately the Judiciary suffers therefrom because a Judge is a visible representation of the Judiciary ( City of Tagbilaran vs Hontanosas Jr.)

Question 6:

A businessman is looking for a new retainer. He approached you and asked for your schedule of fees or charges. He informed you of the professional fees he is presently paying his retainer, which is actually lower than your rates. He said if you lower your rates he will engage your services.

Will you lower your rates in order to get the client?

Answer:

No, I would not (Canon 2 Rule 2.04 Code of Professional Responsibility).provides that a lawyer shall not charge rates lower than those customarily prescribed unless circumstances so warrant. This is aimed against practice cutthroat competition which is not in keeping with the principle that the practice of law is a noble profession and not a trade. Moreover, if he agrees, he would be encroaching on the employment of a fellow lawyer.

Question 7:

A. Judge Segotier is a member of Phi Nu Phi Fraternity. Atty. Nonato filed a motion to disqualify Judge Segotier on the ground that the counsel for the opposing party is also a member of the Judge’s fraternity. Judge Segotier denied the motion. Comment on his ruling? B. In an intestate proceeding, a petition for the issuance of letters of administration in favor of a Regional Trial Court Judge was filed by one of the heirs. Another heir opposed the petition on the ground that the Judge is disqualified to become an administrator of the estate as he is the brother-inlaw of the deceased. Rule on the Petition.

Answer: A. The ruling of the Judge Segotier is correct. The fact that a judge is a former classmate of one of his counsel to the case has been held insufficient ground for the disqualification of the Judge( V.da de Bonifacio vs B.L.T. Bus Co. 34 SCRA 618). Intimacy or friendship between a judge and an attorney of record has also been held to be insufficient ground for the formers disqualification. B. I will deny the petition for issuance of letters of administration in favor of the Regional Trial Court Judge( Rule 5.06 of the Code of Judicial Conduct) provides that a judge should not serve as the executor, administrator, trustee, guardian or other fiduciary, except for the estate, trust, or person of a member of the immediate family, and then only if such interference with the proper performance of his judicial duties. The exception is not applicable

because member of the immediate family is defined in the same rule as the limited spouses and relatives within the second degree of consanguinity. The deceased brother in law of the judge is not a relative within the second degree of consanguinity but of affinity. Question 8:

Due to the number of cases handled by Atty. Cesar he failed to file a notice of change of address to the court of Appeals. Hence he was not able to file an Appellant’s Brief and consequently the case was dismissed. Aggrieved Atty. Cesar filed a motion for reconsideration of the resolution dismissing the appeal and to set aside the entry of judgment on the ground that he already indicated in his urgent motion for extension of time to file and appellant’s brief, his new address and that his failure to file a notice of change of address is an inexcusable negligence. Will the motion Prosper?

Answer:

The motion will not prosper, it is the lawyer’s duty to inform the court or to make of record of the changes in his address. His failure to do so does not constitute excusable negligence. The lawyer cannot presume that the court will take cognizance of the new address in his motion for the extension of time.

Question 9:

Darius is charge with the crime of murder. He sought Atty. Francia’s help and assured the latter that he did not commit the crime. Atty. Francia Agreed to represent him in court. During the trial the prosecution presented several witnesses whose testimonies convinced Atty. Francia that her client is Guilty. She confronted his client and eventually admitted the crime. In view of this admission, Atty. Francia decided to withdraw the case. Should Atty. Francia be allowed to do so?

Answer:

1. No,he should not be allowed to withdraw. A lawyer may withdraw as counsel only with the consent of the client and with leave of court and only for good cause enumerated in (Rule 22.01 Canon 22 Code of Professional Responsibility). A lawyer shall not decline to represent a person solely because of his opinion regarding the guilt of the person (Rule 14.01 Canon 14 Code of Professional Responsibility).

Question 10:

Atty. Yabang was suspended as a member of the Bar for the period of one year. During the period of suspension, he was permitted by his law firm to continue working in their office, drafting and preparing pleadings and other legal documents, but was not allowed to direct contact with firms clients. Atty. Yabang was subsequently sued for illegal practice of law. Would the case prosper?`

Answer:

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

Question 11:

Atty. Japzon, a former partner of XXX law firm, is representing Kapuso Corporation in a civil case against Kapamilya Corporation whose legal counsel is XXX law firm. Atty. Japzon claims that she never handled the case of Kapamilya Corporation when she was still with XXX law firm. Is there a conflict of interest?

Answer:

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

Question 12:

Pending before the sala of Judge Magbag is the case of CDG versus JQT. The legal counsel of JQT is Atty. Ocsing who happens to be the brother of Atty. Ferreras, A friend of JudgeMagabag. While case is still being heard Atty. Ferreras and his wife invited Judge Magabag on their wedding anniversary. Judge Magbag attended the party and was seen conversing with Atty. Ocsing while they were eating at the same table. Comment on the Propriety of the act of Judge Magbag?

Answer:

A judge is not required to live in seclusion he is permitted to have a social life as long as it does not interfere with his judicial duties or detract from the dignity of the court (Canon 5, Code of Judicial Conduct).However he should be scrupulously careful to avoid such action as nay reasonably tend to awaken the suspicion that his social or business relations or friendships constitute an element in determining his judicial action. A judge should avoid impropriety and appearance of impropriety in all activities(Canon 2, Code of Judicial Conduct).Sitting on the sane table and conversing with a lawyer with a pending case before him raises such appearance of impropriety.

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