Bar Q & A, Legal Ethics

2015 Bar Exam Suggested Answers in Legal Ethics by the UP Law Complex

I.

Define the following terms: (4%)
(A) counsel de oficio
(B) counsel de parte
(C) amicus curiae
(D) attorney of record
SUGGESTED ANSWER

(A) counsel de officio – a lawyer appointed by the court to represent a
party who cannot afford to secure a lawyer to represent him in a case.

(B) counsel de parte – a lawyer chosen by a party to represent him in a case.

(C) amicus curiae – literally, a friend of the court; a lawyer appointed by the court, not to represent a party to the case, but to advise the court on intricate questions of law in a case that the lawyer may have some expertise in

(D) counsel of record – a lawyer whose name and address appears in the or a case as representing a party; same as a counsel de parte.

II.

In open court, accused Marla manifested that she had already settled in full the civil aspect of the criminal case filed against her in the total amount of P58,000.00. Marla further alleged that she paid directly to private complainant Jasmine the amount of P25,000.00. The balance of P33,000.00 was delivered to Atty. Jeremiah, Jasmine’s lawyer, evidenced by a receipt signed by Atty. Jeremiah himself.
However, Jasmine manifested that she did not receive the amount of P33,000.00 which Marla turned over to Atty. Jeremiah. Despite Jasmine’s requests to turn over the money, Atty. Jeremiah failed to do so. It was only after Jasmine already filed an administrative complaint against Atty. Jeremiah that the latter finally paid the P33,000.00 to the former, but in three installment payments of P11,000.00 each. Atty. Jeremiah claimed that he decided to hold on to the P33,000.00 at first because Jasmine had not yet paid his attorney’s fees.

Is Atty. Jeremiah administratively liable? Explain. (3%)

SUGGESTED ANSWER

Atty. Jeremiah is administratively liable for violating Rule 16.01 of the Code of Professional Responsibility (CPR) which provides that “a lawyer shall account for all money and property collected or received by him for or from the client.” His claim that he held on to the P33,000.00 because his client Jasmine had not yet paid his attorney’s fees, is lame. Rule 16.03 of the CPR provides that “a lawyer shall have a lien over the funds (of the client) and may apply as much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client”. But the Supreme Court has held that this can be availed of by a lawyer only if there is an agreement between him and the client as to the amount of his attorney’s fees. There is no evidence of such agreement in this case. In fact, Atty. Jeremiah claimed his exercise of a retaining lien only after an administrative case was already filed against him; moreover, it is belied by the fact that Atty. Jeremiah paid the P33,000.00 to his client Jasmine, albeit in installments.

 

III.

Maria and Atty. Evangeline met each other and became good friends at zumba class. One day, Maria approached Atty. Evangeline for legal advice. It turned out that Maria, a nurse, previously worked in the Middle East. So she could more easily leave for work abroad, she declared in all her documents that she was still single. However, Maria was already married with two children. Maria again had plans to apply for work abroad but this time. wished to have all her papers in order. Atty. Evangeline, claiming that she was already overloaded with other cases, referred Maria’s case to another lawyer. Maria found it appalling that after Atty. Evangeline had learned of her secrets, the latter refused to handle her case. Maria’s friendship with Atty. Evangeline permanently turned sour after Maria filed an administrative case against the latter for failing to return borrowed jewelry. Atty. Evangeline, on the other hand, threatened to charge Maria with a criminal case for falsification of public documents, based on the disclosures Maria had earlier made to Atty. Evangeline.

(A) Was the consultation of Maria with Atty. Evangeline considered privileged? (1%)

(B) What are the factors to establish the existence of attorney-client privilege? (3%)

SUGGESTED ANSWER

(A) The consultation of Maria with Atty. Evangeline is considered privileged. In the case of Hadjula v. Madianda (A.C. No. 6711, July 3, 2007), which involves basically the same facts, the Supreme Court held as follows:

“As it were, complainant went to respondent, a lawyer who incidentally was also then a friend, to bare what she considered personal secrets and sensitive documents for the purpose of obtaining legal advice and assistance. The moment complainant approached the then recep tive respondent to seek legal advice, a veritable lawyerclient relationship evolved between the two. Such relationship, imposes upon the lawyer certain restrictions circumscribed by the ethics of the profession. Among the burdens of the relationship is that which enjoins the lawyer, respondent in this instance, to keep inviolate confidential information acquired or revealed during legal consultations. The fact that one is, at the end of the day not inclined to handle the client’s case is hardly of consequence. Of little moment too, is the fact that no formal professional engagement follows the consultation. Nor will it make any difference, that no contract whatsoever was executed by the parties to memorialize the relationship.”
(B) In the same case, the Supreme Court cited Wigmore on the factors essential to establish the attorney-client privilege as follows:

(1) Where legal advise of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communication relating to that purpose, (4) made in confidence (5) by the client (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.”

 

IV.

The Lawyer’s Oath is a source of obligation and its violation is a ground for suspension, disbarment, or other disciplinary action. State in substance the Lawyer’s Oath. (3%)

SUGGESTED ANSWER

I, ________, having been permitted to continue in the practice of law in the Philippines, do solemnly swear that I recognize the supreme authority of the Republic of the Philippines; I will support its Constitution and obey the law as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the courts as to my clients; and ! impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God.”

 

V.

Judge Ana P. Sevillano had an issue with the billings for the per cellular phone services of her 16-year-old daughter for the last three consecutive months. Although Judge Sevillano had been repeatedly came the Customer Service Hotline of Universal Telecoms, the billings issuem never fully settled to Judge Sevillano’s satisfaction. Finally, Judge Sevillante wrote the National Telecommunications Commission a letter of compra against Universal Telecoms, using her official court stationery and signing the letter as “Judge Ana P. Sevillano.” Did Judge Sevillano violate any professional or ethical standard for judges? Justify your answer. (3%)

SUGGESTED ANSWER

Judge Sevillano violated Section 8, Canon 4, of the New Code of Judicial Conduct for the Philippine Judiciary, which provides that “judges shall not use or lend the prestige of the judicial office to advance their private interests, or those of a member of their family or of anyone else, nor shall they convey or permit others to convey the impression that anyone is in a special position improperly to influence them in the performance of judicial duties”, as well as Rule 6.02 of the Code of Professional Responsibility which provides that “a lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties”.

In the case of Ladigon v. Garong (A.M. MTJ-08-1712, August 20, 2008), where a Municipal Trial Court Judge wrote a letter to a religious organization abroad, about the complaint of one of its members, using the stationary of his court and signing with his title of “Judge”, the Supreme Court held with regard to the use of the stationary, that “In the present case, the respondent Judge crossed the line of propriety when he used his letterhead to report a complaint involving an alleged violation of church rules and, possibly, of
Philippine laws. Coming from a judge with the letter addressed to a foreign reader, such report could indeed have conveyed the impression of official recognition or notice of the reported violation.”

With regard to the use of the judge’s title in signing the letter, the Supreme Court held that:

“The same problem that the use of letterhead poses, occurs in the use of the title of judge or Justice in the correspondence of a member of the Judiciary. While the use of the title is an official designation as well as an honor that an incumbent has earned, a line still has to be drawn based on the circumstances of the use of the appellation. While the title can be used for social and other identification purposes, it cannot be used with the intent to use the prestige of his judicial office to gainfully advance his personal, family or other pecuniary interests. Nor can the prestige of a judicial office be used or lent to advance the private interests of others, or to convey or permit others to convey the impression that they are in a special position to influence the judge. To do any of these is to cross into the prohibited field of impropriety.”

VI.

Casper Solis graduated with a Bachelor of Laws degree from Achieve University in 2000 and took and passed the bar examinations given that same year. Casper passed the bar examinations and took the Attorney’s Oath together with other successful bar examinees on March 19, 2001 at the Philippine International Convention Center (PICC). He was scheduled to sign the Roll of Attorneys on May 24, 2001 but he misplaced the Notice to Sign the Roll of Attorneys sent by the Office of the Bar Confidant after he went home to the province for a vacation. Since taking his oath in 2001, Casper had been employed by several law firms and private corporations, mainly doing corporate and taxation work. When attending a seminar as part of his Mandatory Continuing Legal Education in 2003, Casper was unable to provide his roll number. Seven years later in 2010, Casper filed a Petition praying that he be allowed to sign the Roll of Attorneys. Casper alleged good faith, initially believing that he had already signed the Roll before entering PICC for his oath-taking on March 19, 2001.

a. Can Casper already be considered a member of the Bar and be allowed to use the title of “attorney”? Explain. (1%)

b. Did Casper commit any professional or ethical transgression for which he could be held administratively liable? (2%)

c. Will you grant Casper’s Petition to belatedly sign the Roll of Attorneys? Why? (2%)

SUGGESTED ANSWER

(A) Casper cannot already be considered a member of the Bar and be allowed to use the title of attorney. In the case of In Re: Petition to Sign on the Roll of Attorneys, Michael A. Medado, Petitioner (B.M. No. 2540, September 24, 2013), and Aguirre v. Rana (B.M. No. 1036, June 10, 2003, 451 SCRA 428), involving the same facts, the Supreme Court held that it is the act of signing the Roll of Attorneys that makes a successful Bar examinee a full-fledged member of the Philippine Bar.

(B) He can be held liable for unauthorized practice of law. Canon 9 of the Code of Professional Responsibility provides that a lawyer shall not directly or indirectly assist in the unauthorized practice of law.” In the Medado case, the Supreme Court held that “while a reading of Canon 9 appears to merely prohibit lawyers from assisting in the unauthorized practice of law, the unauthorized practice of law by the lawyer himself is subsumed under this provision, because at the heart of Canon 9 is the lawyer’s duty to prevent the unauthorized practice of law”.

(C) I will grant Casper’s petition to belatedly sign the Roll of Attorneys.
He demonstrated good faith and moral character in voluntarily filing his petition. He did not wait for a third party to file a complaint against him for his transgression. However, he should be allowed to sign the Roll only one year afterwards, which is tantamount to a suspension, as was done in the Medado case.

 

VII

Cite some of the characteristics of the legal profession which distinguish it from business. (4%)

SUGGESTED ANSWER

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

 

VIII

Engr. Gilbert referred his friends, spouses Richard and Cindy Maylupa, to Atty. Jane for the institution of an action for partition of the estate of Richard’s deceased father. In a letter, Atty. Jane promised to give Engr. Gilbert a commission equivalent to 15% of the attorney’s fees she would receive from the spouses Maylupa. Atty. Jane, however, failed to pay Engr. Gilbert the promised commission despite already terminating the action for partition and receiving attorney’s fees amounting to about P600,000.00. Engr. Gilbert repeatedly demanded payment of his commission but Atty. Jane ignored him. May Atty. Jane professionally or ethically promise a commission to Engr. Gilbert? Explain. (3%)

SUGGESTED ANSWER
Atty. Jane may not professionally or ethically promise a commission to Engr. Gilbert. Rule 9.02 of the Code of Professional Responsibility (CPR) provides that “a lawyer shall not divide or stipulate to divide a fee for legal services with persons not authorized to practice law”.

 

IX.

(A) Explain the doctrine of quantum meruit in determining the amount of attorney’s fees. (2%)

(B) Identify the factors to be considered in determining attorney’s fees on a quantum meruit basis. (2%)

SUGGESTED ANSWER

(A) Quantum meruit means as much as the services of a lawyer are worth.
Recovery of attorney’s fees on the basis of quantum meruit is authorized when (1) there is no express contract for the payment of attorney’s fees; (2) although there is a contract for attorney’s fees, the fees stipulated are found unconscionable by the court; (3) the contract for attorney’s fees is void due to formal defects of execution; (4) the lawyer was not able to finish the case for justifiable cause; (5) the lawyer and the client disregard the contract for attorney’s fees; and (6) the client dismissed his counsel or the latter withdrew therefrom, for valid reasons.

(B) The factors are those set in Rule 20.01 of the Code of Professional
Responsibility (CPR), as follows:

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 from 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.”

X

The spouses Manuel were the registered owners owners of a parcel of land measuring about 200,000 square meters. On May 4, 2000, Manuel sold the land for P3,500,000.00 to the spouses Rivera who were issued a certificate of title of the said lands. Because the Spouses Rivera falled to pay the balance of the purchase price for the land, the spouses Manuel, through Atty. Enriquez, instituted an action on March 18, 2010 before the Regional Trial Court (RTC) for sum of money and/or annulment of sale, docketed as Civil Case No. 1111. The complaint in Civil Case No. 1111 specifically alleged that Atty. Enriquez would be paid P200,000.00 as attorney’s fees on a contingency basis. The RIC subsequently promulgated its decision upholding the sale of the land to the spouses Rivera. Atty. Enriquez timely filed an appeal on behalf of the spouses Manuel before the Court of Appeals. The appellate court found for the spouses Manuel, declared the sale of the land to the spouses Rivera null and void, and ordered the cancellation of the spouses Rivera’s certificate of title for the land. The Supreme Court dismissed the spouses Rivera’s appeal for lack of merit. With the finality of judgment in Civil Case No. 1111 on October 20, 2014, Atty. Enriquez filed a motion for the issuance of a writ of execution.

Meanwhile, the spouses Rivera filed on November 10, 2014 before the RTC a case for quieting of title against the spouses Manuel, docketed as Civil Case No. 2222. The spouses Manuel, again through Atty. Enriquez, filed a motion to dismiss Civil Case No. 2222 on the ground of res judicata given the final judgment in Civil Case No. 1111. Pending the resolution of the motion to dismiss in Civil Case No. 2222, the RTC granted on February 9, 2015 the motion for issuance of a writ of execution in Civil Case No. 1111 and placed the spouses Manuel in possession of the land. Atty. Enriquez, based on a purported oral agreement with the spouses Manuel, laid claim to 1/2 of the land, measuring 100,000.00 Square meters with market value of P1,750,000.00, as his attorney’s fees.

Atty. Enriquez caused the subdivision of the land in two equal portions and entered into the half the appropriated for himself. Based on the professional and ethical standards for lawyers, may Atty. Enriquez claim 1/2 of the land as his contingency fee? Why? (4%)

SUGGESTED ANSWER

Atty. Enriquez may not claim 1/2 of the land as his contingency fee. In the first place, a lawyer cannot charge his client a contingent fee or a percentage of the amount recovered as his fees in the absence of an express contract to that effect (Corpus v. Court of Appeals, G.R. No. L-40424, June 30, 1980, 98 SCRA 424). There is no such contract in this case. As a matter of fact, the claim of a purported oral agreement for a contingency fee of 1/2 of the land is contradicted by the allegation in the Complaint in Civil Case No. 1111 for a contingency fee of P200,000.00 only. Moreover, the amount claimed as contingent fee appears to be excessive and unreasonable. The issue involved in the case was simple and did not require extensive skill, effort and research on the part of Atty. Enriquez. Furthermore, Atty. Enriquez caused the division of the land and appropriated one half thereof, pending resolution of the motion to dismiss in Civil Case No. 2222. This constitutes a violation of Article 1491 of the New Civil Code, because the case in which the property is involved has not yet been terminated (The Conjugal Partnership of the Spouse Cadavedo v. Victorino T. Lacaya, G.R. No. 173188, January 15, 2014).

 

XI

Atty. Belinda appeared as counsel for accused Popoy in a case being heard before Judge Tadhana. After Popoy was arraigned, Atty. Belinda movcu a resetting of the pre-trial conference. This visibly irked Juage and and so before Atty. Belinda could finish her statement, Judge Tadhana cut her off by saying that if she was not prepared to handle the case, then he could easily assign a counsel de oficio for Popoy. Judge Tadhana also uttered that Atty. Belinda was wasting the precious time of the court. Atty. Belinda tried to explain that she was capable of handling the case but before she could finish her explanation, Judge Tadhana again cut her off and accused her of always making excuses for her incompetence. Judge Tadhana even declared that he did not care if Atty. Belinda filed a thousand administrative cases against him. According to Atty. Belinda, Judge Tadhana had also humiliated her like that in the past for the flimsiest of reasons. Even Atty. Belinda’s clients were not spared from Judge Tadhana’s wrath as he often scolded witnesses who failed to respond immediately to questions asked of them on the witness stand. Atty. Belinda filed an administrative case against Judge Tadhana. Do the acts of Judge Tadhana as described above constitute a violation of the Code of Judicial Conduct? Explain. (3%)

SUGGESTED ANSWER

Judge Tadhana has violated Section 6, Canon 6 of the New Code of Judicial Conduct for the Philippine Judiciary which provides that:”Sec. 6. Judges shall maintain order and decorum in all proceedings before the court, and be patient, dignified and courteous in relation to litigants, witnesses, lawyers and others
with whom the judge deals in an official capacity. Judges shall require similar conduct of legal representatives, court staff and others subject to their influence, direction or control”
The Supreme Court has held as follows:
“The duty to maintain respect for the dignity of the court applies to members of the bench and bar alike. A judge should be courteous both in his conduct and in his language especially to those appearing before him. He can hold counsels to a proper appreciation of their duties to the court, their clients and the public in general without being petty, arbitrary, overbearing, or tyrannical.. He should refrain from conduct that demeans his office and remember that courtesy begets courtesy. Above all, he must conduct himself in such a manner that he gives no reason for reproach” (Ruiz v. Bringas, A. H. No. MTJ-00-1266, April 6, 2000, 330 SCRA 62).

XII

(A) What is the best form of advertising possible for a lawyer (27)
(B) What are the allowable or permissible forms of advertising by a lawyer? (3%)

SUGGESTED ANSWER

(A) The best form of advertising is a well-merited reputation for professional capacity and fidelity to trust, which must be earned as an outcome of character and conduct (Ulep v. Legal Clinic, Inc., Bar Matter No.553, June 17, 1993, 223 SCRA 378 [2012]).

(B)
1. Publication in reputable law lists of brief biographical and honest informative data; 2. Use of an ordinary professional business card;
3. Announcements of specialization and availability of service in a legal journal for lawyers; 4. Seeking of appointment to a public office requiring lawyers;
5. Advertising to seek full-time position as counsel for a corporation;
6. Offering free legal service to indigents through radio broadcasts or printed matter;
7. Announcement of opening of a law firm, changes ofpersonnel, firm name or office address;
8. Listings in a telephone directory.

XIII

In a land registration case before Judge Lucio, the petitioner is represented by the second cousin of Judge Lucio’s wife.
(A) Differentiate between compulsory and voluntary disqualification and determine if Judge Lucio should disqualify himself under either circumstance. (3%)
(B) If none of the parties move for his disqualification, may Judge Lucio proceed with the case? (2%)

SUGGESTED ANSWER

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

Section 5, Canon 3 of the New Code of Judicial Conduct for the Philippine Judiciary adds the following grounds:
a) the judge has actual bias or prejudice concerning a party or personal knowledge of dispute the proceedings;

b) knowledge of disputed evidentiary facts concerning the judge has previously served as a lawyer or was witness in the matter under controversy.

In voluntary disqualification, a judge may inhibit himself in the exercise of his discretion. Paragraph 2. Rule 137 of the Revised Rules of court provides that “a judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just and valid reasons other than those mentioned above”. The New Code of Professional Conduct for the Philippine Judiciary adds that “judges shall disquality themselves from participating in any proceedings in which they are unable to decide the matter impartially or in which it may appear to a reasonable observer that they are unable to decide the matter impartially.” There is no mandatory ground for Judge Lucio to disqualify himself. The second cousin of his wife, a sixth degree relative, is appearing not as a party but as a counsel.

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

XIV

Identify and briefly explain three of the canons under the New Code of Judicial Conduct for the Philippine judiciary. (6%)

SUGGESTED ANSWER

(Any three of the following:)

Canon No. 1 – Independence. Judicial independence is a pre-reguisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify the judicial function independently on the basis of their assessment of the facts and in accordance a conscientious understanding of the law, free from any extraneous influence, inducement, pressure, threat or interference, direct or indirect, from any quarter or for any reason.

Canon No. 2 – Integrity. Integrity is essential not only to the proper discharge of the judicial office but also to the personal demeanor of judges. The behavior and conduct of judges must reaffirm the people’s faith in the integrity of the judiciary. Justice must not be merely done but must also be seen to be done.

Canon No. 3. – Impartiality. Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made. Judges shall perform their judicial functions without favor, bias or prejudice.

Canon No. 4. – Propriety. Propriety and the appearance of propriety are essential to the performance of all the activities of a judge. Judges shall avoid impropriety and the appearance of impropriety in all their activities.

Canon No. 5. – Equality. Ensuring equality of treatment to all before the courts is essential to the performance of the judicial office. Judges shall be aware of, and understand, diversity in society and differences arising from various sources, including, but not limited to, race, color, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status and other like causes.

Canon No. 6. – Competence and Diligence. Competence and diligence are prerequisites for the due performance of judicial office. Judges shall take reasonable steps to maintain and enhance their knowledge, skills and personal qualities necessary for the proper performance of judicial duties.

XV

Jon served as Chief Executive Officer (CEO) of PBB Cars, Inc. (PRR) family-owned corporation engaged in the buying and selling of second hand cars. Atty. Teresa renders legal services to PBB on a retainer basis In 2010, Jon engaged Atty. Teresa’s services for a personal case. Attu Teresa represented Jon in a BP. Big. 22 case filed against him by the spouses Yuki, Jon paid a separate legal fee for Atty. Teresa’s services, Jon subsequently resigned as CEO of PBB in 2011. In 2012, Atty. Teresa filed on behalf of PBB a complaint for replevin and damages against Jon to recover the car PBB had assigned to him as a service vehicle. Atty. Teresa, however, had not yet withdrawn as Jon’s counsel of record in the BP Big. 22 case, which was still then pending. jon filed an administrative case for disbarment against Atty. Teresa for representing conflicting interests and violating the Code of Professional Responsibility. Atty. Teresa countered that since the BP Big. 22 case and the replevin case are unrelated and involved different issues, parties, and subject matters, there was no conflict of interest and she acted within the bounds of legal ethics.
Is Atty. Teresa’s contention tenable? Explain. (3%)

SUGGESTED ANSWER

The Supreme Court has adopted the following tests for determining conflict of interest.
(1) Whether a lawyer is duty bound to fight for an issue or claim in behalf of one client, and at the same time, to oppose that claim for another client.

(2) Whether the acceptance of a new relation would prevent the full discharge of his duty of undivided loyalty to his client.
(3) Whether the acceptance of a new relation would invite suspicion of unfaithfulness or double-dealing in the performance of his duty of fidelity and loyalty.
(4) Whether in the acceptance of the new relation, he would be called upon to injure his former client on a matter that he has handled for him, or require him to reveal information that his former client has given to him.

Although the case for replevin filed by Atty. Teresa against Jon is different from the BP Big. 22 case she was handling for him, the pendency of the two cases at the same time is likely to invite suspicion of unfaithfulness or double-dealing in the performance of her duty and fidelity to Jon Teresa’s contention is, therefore, not tenable.

XVI

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

(A) Does Atty. Luna Tek act in a manner consistent with the Code of Professional Responsibility? Explain the reasons for your answer. (3%)

(B) Describe the relationship between a lawyer and the courts. (3%)

SUGGESTED ANSWER

(A) Atty. Luna Tek did not act in a manner consistent with the Code of Professional Responsibility (CPR). Canon 11 of the Code provides that “a lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct with others”. As an officer of the court, a lawyer should set the example in maintaining a respectful attitude towards the court. Moreover, he should abstain from offensive language in criticizing the courts. Atty. Luna Tek violated this rule in insulting and blatantly cursing the individual Justices and the Supreme Court in her tweets. Lawyers are expected to carry their ethical responsibilities with them in cyberspace (Lorenzana V. Judge Ma. Cecilia L. Austria, A.M. No. RTJ-09-2200, April 2, 2014).

(B) A lawyer is an officer of the court. As such, he is as much a part of the machinery of justice as a judge is. The judge depends on the lawyer for the proper performance of his judicial duties. Thus, Canon 10 enjoins a lawyer to be candid with the courts; Canon 11 requires him to show respect to judicial officers; and Canon 12 urges him to exert every effort and consider it his duty to assist in the speedy and efficient administration of justice.”

XVII

Give three instances when a lawyer is allowed to withdraw bis/her services. (3%)

SUGGESTED ANSWER

(Any three of the following)

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

XVIII

Atty. Javier sold a piece of land in favor of Gregorio for P 2,000,000.00. Atty. Javier drafted the Deed of Sale with Right to Repurchase which he and Gregorio signed on August 12, 2002. Under said Deed, Atty. Javier represented that he had”the perfect right to dispose as owner in fee simple” the land and that the land is “free from all liens and encumbrances. The Dec also stated that Atty. Javier had two years within which to repurchase is property. Atty. Javier turned over the owner’s copy of his certificate of title, TCT No. 12121, to Gregorio. Gregorio then immediately took possession of the land.

Atty. Javier failed to exercise his right to repurchase within two years. Gregorio sent Atty. Javier a letter dated April 8, 2005 demanding that the latter already repurchase the property. Despite receipt of Gregorio’s letter, Atty. Javier still failed to repurchase the property. Gregorio remained in peaceful possession of the land until July 25, 2013, when he received notice from Trustworthy Bank informing him that the land was mortgaged to said bank, that the bank already foreclosed on the land, and that Gregorio should therefore vacate the land. Upon investigation, Gregorio discovered that Atty. Javier’s TCT No. 12121 had already been cancelled when another bank foreclosed on a previous mortgage on the land, but after a series of transactions, Atty. Javier was able to reacquire the land and secure TCT No 34343 for the same. With TCT No. 34343, Atty. Javier constituted another mortgage on the land in favor of Trustworthy Bank on February 22, 2002. Gregorio was subsequently dispossessed of the property. Gregorio filed an administrative complaint against Atty. Javier. In his defense, Atty. Javier argued that he could not be held administratively liable as there was no attorney-client relationship between him and Gregorio. Moreover, the transaction was not actually one of sale with right to repurchase, but one of equitable mortgage, wherein he still had the legal right to mortgage the land to other persons.

(A) If you are tasked to investigate and report on Gregorio’s administrative complaint against Atty. Javier, what will be your recommendation and finding? (3%)

(B) in the same administrative case, may Atty. Javier be ordered to return the P2,000,000.00 purchase price to Gregorio? Explain. (3%)

SUGGESTED ANSWER

(A) In the case of Saladagay. Atty. Arturo Astorga (A.C. No. 4697, November 25, 2014), involving the same facts, the Supreme Court found that:

“Respondent dealt with complainant with bad faith, falsehood, and deceit when he entered into the “Deed of Sale with Right to Repurchase” dated December 2, 1981 with the latter. He made it appear that the property was covered by TCT No. T-662 under his name, even giving complainant the owner’s copy of the said certificate of title, when the truth is that the said TCT had already been cancelled some nine years earlier by TCT No. T-3211 in the name of PNB. He did not even care to correct the wrong statement in the deed when he was subsequently issued a new copy of TCT No. T-7235 on January 4, 1982, 21 days or barely a month after the execution of the said deed. All told, respondent clearly committed an act of gross dishonesty and deceit against complainant (Canon 1 and Rule 1.01 of the Code of Professional Responsibility)”.

Consequently, the Court held that:

“The actions of respondent in connection with the execution of the “Deed of Sale with Right to Repurchase”
clearly fall within the concept of unlawful, dishonest, and deceitful conduct. They violate Article 19 of the Civil Code. They show a disregard for Section 63 of the Land Registration Act. They also reflect bad faith, dishonesty, and deceit on respondent’s part. Thus, respondent deserves to be sanctioned.”
Following the said precedent, I will recommend that Atty. Javier be likewise sanctioned.
(B) However, Atty. Javier may not be ordered to return the P2,000,000.00 to Gregorio in the administrative case. This is a civil liability which is best determined in a civil case. The sole issue in an administrative proceeding is whether or not the respondent deserves to remain a member of the Bar (Concepcion and Blesilda S. Concepcion v. Atty. Elmer A. Dela Rosa, A.C. No. 10681, February 3, 2015).

XIX

(A) What are the grounds for disbarment or suspension from office of an attorney? ( 4%)

(B) If Atty. Babala is also admitted as an attorney in a foreign jurisdiction, what is the effect of his disbarment or suspension by a competent court or other disciplinary authority in said foreign jurisdiction to his membership in the Philippine Bar? (2%)

SUGGESTED ANSWER

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

(B) He may also be disbarred or suspended in the Philippines, if the
ground for his suspension or disbarment in a foreign jurisdiction is also a ground for suspension or disbarment here. He is, however, still entitled to notice and hearing, and the decision of the foreign tribunal will only be prima facie evidence of his guilt.

XX

Cecilio is one of the 12 heirs of his father Vicente, who owned an tural land located in Bohol. Cecilio filed a complaint charging Judge Love Koto with abuse of discretion and authority for preparing and not a document entitled “Extra-judicial Partition with Simultaneous Sale” executed by Cecilio’s mother Divina and brother Jose. Jose signed on Deed on his own behalf and purportedly also on behalf of his brothers and sisters, including Cecilio. Cecilio though alleged that in his Special Power of Attorney, he merely granted Jose the authority to mortgage sald agricultural land but not to partition, much less to sell the same. Judge Koto contended that in a municipality where a notary public is unavailable, a municipal judge is allowed to notarize documents or deeds as ex officio notary public. He claimed that he acted in good faith and only wanted to help. Did Judge Koto violate any rules? Discuss. (3%)

SUGGESTED ANSWER

Municipal Trial Court judges are notaries public ex oficio; however, they may notarize only such documents as are related to their functions. The exception to this is that, in remote municipalities where there is no notary public available, an MTC judge may notarize a private document provided that he shall state in his certification the absence of a notary public in the municipality, and that the notarial fees should be paid to the Municipal Treasurer. Assuming, nevertheless, that the exception applies in this case, Judge Koto should not have notarized the “Extra-Judicial Partition with Simultaneous Deed of Sale” submitted to him for notarization. This is because not all of the parties concerned signed and appeared before him. In the particular case of Cecilio, his brother Jose signed for him purportedly on the basis of a Special Power of Attorney. Judge Koto should have asked for the production of the Special Power of Attorney and determined whether or not Cecilio indeed authorized Jose to sign the deed of partition and sale on his behalf.

XXI

Judge Junior attended the 50th birthday party of his fraternity brother, Atty. Vera. Also present at the party was Atty. Rico who was Atty. Vera’s classmate way back in high school and who was handling Civil Case No. 5555 currently pending before Judge Junior’s court. Well-aware that Atty. Rico had a case before his sala, Judge Junior still sat next to Atty. Rico at a table, and the two conversed with each other, and ate and drank together throughout the night. Since Atty. Vera was a well-known personality, his birthday party was featured in a magazine. The opposing party to Atty. Rico’s client in Civil Case No. 5555, while flipping through the pages of the magazine, came upon the pictures of Judge Junior and Atty. Rico together at the party and used said pictures as bases for instituting an administrative case against Judge Junior. Judge Junior, in his answer, reasoned that he attended Atty. Vera’s party in his private capacity, that he had no control over who Atty. Vera invited to the party, and that he and Atty. Rico never discussed Civil Case No. 5555 during the party. Did Judge Junior commit an administrative infraction? Explain. (3%)

SUGGESTED ANSWER

Section 3, Canon 4 of the New Code of Conduct for the Philippine Judiciary provides that “judges shall, in their personal relations with individual members of the legal profession who practice regularly in their court, avoid situations which might reasonably give rise to the suspicion of favouritism or partiality.” The act of Judge Junior in sitting next to Atty. Rico, a lawyer whom he knew had a case before his sala, and dining and conversing with him throughout the night, violates the foregoing rule. It tends to give rise to suspicion of partiality. It is improper conduct for which he may be reprimanded.

 

XXII

(A) Describe briefly the Mandatory Continuing Legal Education for a member of the Integrated Bar of the Philippines and the purpose of the same. (2%)

(B) Name three parties exempted from the MCLE. (3%)

SUGGESTED ANSWER

(A) Mandatory Continuing Legal Education (MCLE) is a rule promulgated by the Supreme Court requiring all lawyers, with a few exceptions, to earn 36 units of legal education every three (3) years. Its purpose is to ensure that members of the bar keep abreast with law and juris: prudence, maintain the ethics of the profession, and enhance the standards of the practice of law.

(B) Select three from the following:

a. President and Vice-President, Secretaries and Undersecretaries of Executive Departments;
b. Senators and Members of the House of Representatives;
c. Chief Justice and Associate Justices of the Supreme Court, incumbent and retired members of the judiciary, incumbent members of the Judicial and Bar Council, incumbent court
lawyers covered by the Philippine Judicial Academy:
d. Chief State Counsel, Chief State Prosecutor, and Assistant Secretaries of the Department of Justice;
e. Solicitor General and Assistant Solicitor General;
f. Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel;
g. Chairmen and Members of Constitutional Commissions;
h. The Ombudsman, over-all Deputy Ombudsman, Deputy Ombudsman and Special Prosecutor of the Office of the Ombudsman;
I. Heads of government agencies exercising quasi-judicial functions;
j. Incumbent deans, bar reviewers and professors of law who have teaching experience for at least ten years in accredited law schools;
K. The Chancellor, Vice-Chancellor and members of the Corps of Professors and Professorial Lecturers of the Philippine Judicial Academy.

 

XXIII

Atty. Billy, a young associate in a medium-sized law firm, was in a rush to meet the deadline for filing his appellant’s brief. He used the internet for legal research by typing keywords on his favorite search engine, which led him to many websites containing text of Philippine jurisprudence. None on these sites was owned or maintained by the Supreme Court. He found a case he believed to be directly applicable to his client’s cause, so he copied the text of the decision from the blog of another law firm, and pasted the text to the document he was working on. The formatting of the text he had copied was lost when he pasted it to the document, and he could not distinguish anymore which portions were the actual findings or rulings of the Supreme Court, and which were quoted portions from the other sources that were used in the body of the decision. Since his deadline was fast approaching, he decided to just make it appear as if every word he quoted was part of the ruling of the Court, thinking that it would not be discovered. Atty. Billy’s opponent, Atty. Ally, a very conscientious former editor of her school’s law journal, noticed many discrepancies in Atty. Billy’s supposed quotations from the Supreme Court decision when she read the text of the case from her copy of the Philippine Reports. Atty. Billy failed to reproduce the punctuation marks and font sizes used by the Court. Worse, he quoted the arguments of one party as presented in the case, which arguments happened to be favorable to his position, and not the ruling or reasoning of the Court, but this distinction was not apparent in his brief. Appalled, she filed a complaint against him.

(A) Did Atty. Billy fail in his duty as a lawyer? What rules did he violate, if any? (2%)

(B) How should lawyers quote a Supreme Court decision? (2%)

SUGGESTED ANSWER

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

(B) They should be verbatim reproductions of the Supreme Court’s decisions, down to the last word and punctuation mark (Insular Life Assurance Co., Ltd., Employees Association v. Insular Life Assurance Co., Ltd., G.R. No. L-25291, January 30, 1971, 37 SCRA 244).

XXIV

An anonymous letter addressed to the the Supreme Court was sent by one concerned citizen, complaining against Judge Hambog, ing Judge of the RTC of Mahangin City, Branch 7. Malcolm X reported that Judge Hambog is acting arrogantly in cours and inappropriate language; and embarrassing and insulting parties, witnesses, and even lawyers appearing before him. Attached to the letter were pages from transcripts of records in several cases heard before Judge Hambog, with Judge Hambog’s arrogant, abusive, inappropriate, embarrassing and/or insulting remarks or comments highlighted.

(A) Will the Court take cognizance of the letter-complaint even coming from an anonymous source? Explain. (2%)

(B) Describe briefly the procedure followed when giving due course to a complaint against an RTC judge. (3%)

SUGGESTED ANSWER

(A) Yes. Section 1, Rule 140 of the Revised Rules of Court provides that proceedings for the discipline of judges of regular and special courts, and Justices of the Court of Appeals and the Sandiganbayan, may be instituted “upon an anonymous complaint, ‘supported by public records of indubitable integrity”.

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

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