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LEGAL ETHICS & PRACTICAL EXERCISES 2005 CENTRALIZED BAR OPERATIONS

MOST FREQUENTLY ASKED BAR QUESTIONS


PRACTICE OF LAW
PRACTICE OF LAW (1985, 1993, 1995, 1996, 1997, 2000, 2002) Question No. 1: What do you understand by practice of law? Answer: Generally, to engage in the practice of law is to do any of those acts which are characteristics of the legal profession. It embraces 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. It involves the carrying on of the calling of an attorney, usually for gain, acting in a representative capacity and rendering service to another. Engaging in the practice of law presupposes the existence of an attorney-client relationship. Hence, where a lawyer undertakes an activity which requires knowledge of law but involves no attorney -client relationship, such as teaching law or writing law books or articles, he cannot be said to be engaged in the practice of his profession as a lawyer.

Question No. 2: A. Is the practice of law a right or a privilege? B. Does the legislature have the power to regulate admission to the bar and the practice of law? Answer: A. The practice of law is basically a privilege because it is limited to persons of good moral character with special qualifications duly ascertained and certified. Thus, only those persons are allowed to practice law, who by reason of attainments previously acquired through education and study, have been recognized by the courts as possessing profound knowledge of legal scie nce. Attorneys are the courts constituency to aid it in the administration of justice. B. Congress under the 1987 Constitution has no power to regulate admission to the Bar and the practice of law. Unlike the 1935 and 1973 Constitutions, the 1987 constit ution no longer provides for the power of the legislature to repeal, alter and supplement the rules promulgated by the Supreme Court. Under the 1935 Constitution, the legislature had the power to repeal or alter the rules promulgated by the Supreme Court although the power and the responsibility to admit members of the bar resides in the Supreme Court. Under the 1987 Constitution, however, the Supreme Court has the exclusive power to promulgate rules concerning the enforcement of rights, pleadings and practice and procedures of all courts and the admission to the practice of law.

RED NOTES IN LEGAL ETHICS

DUTIES OF A LAWYER (1985, 1988, 1994, 2000, 2004) Question No. 3: Being a lawyer and/or a member of the bar is an exceptional privilege worth aspiring for although it entails a lot of responsibilities and obligations (a) to the court; (b) to fellow lawyers; (c) to the clients; and lastly (d) to the public in general. Briefly discuss these obligations and responsibilities. Answer: A. First and foremost among the duties of the lawyer is his duty to the court. The chief mission of an attorney is to assist in the administration of justice. To this end, his clients success in the case is subordinate. His primary responsibility is to uphold the cause of justice. Thus, the lawyer takes orders from the court and not from his client. The lawyer must always maintain respect to the court. He must use respectful language. He must defend the

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dignity and respect to the court. He must also cooperate with the court by being ready with his case and by being punctual and candid with the court. B. The lawyer must maintain harmonious relations with the members of the bar. He must be candid and courteous with fellow lawyers. He should deal fairly and squarely with others and not take undue advantage over them. No ill-feeling must be entertained by him against the lawyer of an adverse party. According to the Supreme Court in People vs. Sesbreno, clients, not the lawyers, are the litigants so that all personalities between counsel and client should be avoided. He should also be a respectable member of the IBP and other bar associations. He must not encroach upon professional employment. He should not solicit cases and advertise his profession. C. The lawyers owes entire devotion to his client, to protect his interest within the bounds of law and legal ethics. He must be candid with his client and advice him properly if he has no valid cause of action. The lawyer must also maintain absolute trust and not to demand unconscionable attorne ys fees. He should not reveal information obtained from him given in secrecy. Likewise, he should not purchase the property which is the subject matter of litigation. He should not appear for conflicting interest. D. The attorneys duties to the public is that he should set an example as a law abiding citizen and give due respect to the lawful authorities. He should not instigate unnecessary lawsuits. One important duty of the lawyer especially at this time is to defend cases of indigent litigants for free. He must take active part in free legal aid services.

PROHIBITED APPEARANCE (1990, 1996, 2000) Question No. 4: 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. Answer: Section 1 of Republic Act No. 910, as amended, provides that 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 subdivision or instrumentality thereof is the adverse party or in any criminal case wherein an officer or employee of the government is accused of an offense committed in relation to his office, or collect any fee for his appearance in any administrative proceedings to maintain an interest adverse to the Government, national, provincial, or municipal, or to any of its legally instituted officers. Inasmuch 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 victims parents in the said case.

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APPEARANCE OF NON-LAWYERS (1993, 1995, 1996, 1999, 2002) Question No. 5: Generally, only those who are members of the bar can appear in court. Are there exceptions to this rule? Explain. Answer: The exceptions to the rule that 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 a friend (Sec. 34, Rule 138).

LEGAL ETHICS & PRACTICAL EXERCISES 2005 CENTRALIZED BAR OPERATIONS


b) In any other court, a party may conduct his litigation personally (id.), except in criminal cases for grave felonies where a party must be represented by a counsel. 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 of good repute for probity and ability, to aid the defendant in his defense, although the person assigned is not a duly authorized member 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 authorized member of the bar to appear in any case which said government has an interest, direct or indirect (Sec. 33, Rule 138). e) A senior law student who is enrolled in a recognized law schools clinical education program approved by the Supreme Court may appear before a court without ny 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).

CHAMPERTOUS CONTRACT (1988, 1990, 1999, 2000) Question No. 6: Atty. As services as a lawyer were engaged by B to recover from C certain construction materials and equipment. Because B did not have the means to defray the expenses of litigation he proposed to Atty. A that he (A) shoulders all expenses of the litigation and he (B) would pay him (A) a portion of the construction materials and equipment to be recovered as compensation for his professional services. May Atty. A correctly agree to such arrangement? Answer: No, Atty. A may not correctly agree to such an agreement. Such an agreement would constitute a champertous contract which is considered void due to public policy, because it would make him acquire a stake in the outcome of the litigation which might lead him to place his own interest above that of the client (Bautista vs. Gonzales, 182 SCRA 151). A champertous contract is one in which a lawyer undertakes to prosecute a case, and bear all the expenses in connection therewith without right of reimbursement, and will be paid his fees by way of a portion of the property or amount that may be recovered, contingent on the success of his efforts. It is different from a contingent fee contract, which is valid, in which the lawyer will also be paid depending on the success of his efforts, but he does not undertake to shoulder all the expenses in the case. He may advance such expenses but always subject to reimbursement by his client.

Question No. 7: Is a contingency fee contract not violative of Article 1491 of the Civil Code? Answer: No, because the litigation is already terminated.

RED NOTES IN LEGAL ETHICS

FORUM SHOPPING (1991, 1995, 1997, 1998, 2002, 2003) Question No. 8: What is your understanding of forum shopping? What are the possible consequences? Answer: Forum shopping is the improper practice of filing 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.

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The possible consequences of forum shopping are: 1. Summary dismissal of the multiple petition or complaint; 2. Penalty for direct contempt of court on the party and his lawyer; 3. Criminal action for a false certification of non forum shopping; 4. Disciplinary proceedings for the lawyer concerned. (Sec. 5, Rule 7 1997 Rules of Civil Procedure)

PROSECUTORS DUTY (1986, 1992, 2001) Question No. 9: 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 conclusion that the accused was really guilty. However, the version of one eyewitness showed that the accused acted in self -defense. If you were the prosecutor, would you place said eye witness on the witness stand? Why? Answer: Under the ordinary rules on trial technique, the prosecutor should not place the eyewitness on the witness stand. However, based on the real mission of a lawyer which 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 a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its 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 mission as a lawyer even if the man he is prosecuting is acquitted in accordance with 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 suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action.

NOTARY PUBLIC (1989, 1995, 1996, 1998) Question No. 10: 1. What are the powers and duties of a notary public? 2. What is the extent of the jurisdiction of a notary public? 3. Who can revoke his notarial commission? Answer: 1. a. A notary public is empowered to do the following acts: 1. Acknowledgments; 2. Oaths and affirmations; 3. Jurats; 4. Signature witnessings; 5. Copy certifications; and 6. Any other act authorized by these Rules. b. A notary public is authorized to certify the affixing of a signature by thumb or other mark on an instrument or document presented for notarization if: 1. The thumb or other mark is affixed in the presence of the notary public and of two (2) disinterested and unaffected witnesses to the instrument or document; 2. Both witnesses sign their own names in addition to the thumb or other mark; 3. The notary public writes below the thumb or other mark: Thumb or Other Mark affixed by (name of signatory by mark) in the presence of (names and addresses of witnesses) and undersigned notary public, and

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LEGAL ETHICS & PRACTICAL EXERCISES 2005 CENTRALIZED BAR OPERATIONS


4. The notary public notarizes the signature by thumb or other mark through an acknowledgment, jurat or signature witnessing.
c. A notary public is authorized to sign on behalf of a person who is physically unable to sign or make a mark on an instrument or document if:

1. The notary public is directed by the person unable to sign or make a mark to sign on his behalf; 2. The signature of the notary public is affixed in the presence of two (2) disinterested and unaffected witnesses to the instrument or document; 3. Both witnesses sign their own names; 4. The notary public writes below his signature: Signature affixed by notary in the presence of (names and addresses of person and two (2) witnesses), and 5. The notary public notarizes his signature by acknowledgment or jurat
The duties of a notary public are the following:

1. To keep a notarial register; 2. To make the proper entry or entries in his notarial register touching his notarial acts in the manner required by the law; 3. To send the copy of the entries to the proper clerk of court within the first 10 days of the month next following; 4. To affix to acknowledgments the date of expiration of his commission, as required by law; 5. To forward his notarial register, when filled, to the proper clerk of court; 6. To make report, within a reasonable time, to the proper judge concerning the performance of his duties, as may be required by such judge; 7. To make the proper notation regarding residence certificates. 2. The jurisdiction of a notary public in a province shall be co-extensive with the province. The jurisdiction of a notary public in the City of Manila shall be co -extensive with said city. No notary shall possess authority to do any notarial act beyond the limits of his jurisdiction. 3. The notarial commission may be revoked by the Executive Judge of the Regional Trial Court who issued the commission or by the Supreme Court itself for any ground on which an application for a commission may be denied. In addition, the Executive Judge may revoke the commission of or impose sanctions upon any notary public who: a. Fails to keep a notarial register; b. Fails to make the appropriate entry or entries in his notarial register concerning his notarial acts; c. Fails to send the copy of the entries to the Executive Judge within the first ten (10) days of the month following; d. Fails to affix to acknowledgments the date of expiration of his commission; e. Fails to submit his notarial register, when filled, to the Executive Judge; f. Fails to make his report, within a reasonable time, to the Executive Judge concerning the performance of his duties, as may be required by the Judge; g. Fails to require the presence of the principal at the time of the notarial act; h. Fails to identify a principal on the basis of personal knowledge or competent evidence; i. Executes a false or incomplete certificate under Section 5, Rule IV; j. Knowingly performs or fails to perform any other act prohibited or mandated by these Rules; and k. Commits any other dereliction or act which in the judgment of the Executive Judge constitutes good cause for the revocation of the commission or imposition of administrative sanction (A.M. No. 02-8-13-SC: Rules on Notarial Practice of 2004).

RED NOTES IN LEGAL ETHICS


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Question No. 11: The agreement between the estranged husband and wife provided for, among others, the liquidation of the conjugal partnership of gains, custody of the children, and support of the children. In the same agreement, the couple waived the right to prosecute each other for bigamy, adultery, concubinage and whatever acts of infidelity. There was also a condonation

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LEGAL ETHICS & PRACTICAL EXERCISES
provision. The agreement was prepared and notarized by a lawyer who was the best man at the wedding. What are the liabilities, if any, of the lawyer? Explain your answer.

Answer: The document executed by the spouses is immoral and contrary to law. the lawyer who drafted and notarized all said documents committed malpractice and can be disbarred or suspended. Although the principal duty of the notary public is to ascertain the identity of the parties and the voluntariness of the declaration, it is nevertheless incumbent upon him to guard against any illegal or immoral agreement, especially so in this case involving marr iage, a social institution which should remain inviolable.

CODE OF PROFESSIONAL RESPONSIBILITY


ADVERTISING (1989, 1993, 1994, 1996, 1997, 1998, 2001, 2002, 2003) Question No. 12: 1. You are a young, brilliant and promising lawyer. Unfortunately, these qualities do not seem to attract as many clients as you wish. Your friend suggested that you advertise. He just arrived from the States and has seen print and television advertisements of lawyers. What kind of advertising, if any, can you do? Explain your answer? 2.Atty. Dulcinea writes a regular column in a newspaper of general circulation and articles on unforgettable legal stories in a leading magazine. Her by -line always includes the name of her firm where she is a name partner. Would you consider this as improper advertising? Explain your answer. Answer: 1. The ethics of the profession forbids a lawyer to solicit professional employment by circulars and advertisements. Even indirect advertisements for professional employment offend the traditions and lower the dignity of the legal profession. The lawyer may make announcement of true, honest, fair, dignified and objective information or statement of facts (Canon 3). 2. Atty. Dulcineas by-line including the firm name where she belongs is improper because it is an indirect way of solicitation or is an advertisement of the law firm.

DUTY NOT TO ENCROACH UPON EMPLOYMENT OF A COLLEAGUE (1989, 1997, 2001) Question No. 13: You are the counsel of K in his action for specific performance against DEV, Inc., a subdivision developer which is represented by Atty. L. your client believes that the president of DEV, Inc. would be wiling to consider an amicable settlement and your client urges you to discuss the matter with DEV, Inc. without the presence of Atty. L whom he considered to be an impediment to an early compromise. Would it be alright for you to negotiate the terms of the compromise as so suggested above by your client? Answer: No. Rule 8.02, Canon 8 of the Code of Professional Responsibility provides th a lawyer at shall not, directly or indirectly, encroach upon the professional employment of another lawyer. Canon 9 of the Code of Professional Ethics is more particular. A lawyer should not in any way communicate upon the subject of the controversy with a party represented by counsel, much less should he undertake to negotiate or compromise the matter with him but should deal only with his counsel. In the case if Likong vs. Lim, 235 SCRA 414, a lawyer was suspended for negotiating a compromise agreement directly with the adverse party without the presence and participation of her counsels.

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RESPECT DUE TO THE COURT (1986, 1987, 1988, 1997)

LEGAL ETHICS & PRACTICAL EXERCISES 2005 CENTRALIZED BAR OPERATIONS


Question No. 14: When is a public comment and criticism of a court decision permissible and when would it be improper?

Answer: A lawyer, like every citizen, enjoys the right to comment on and criticize the decision of a court. As an officer of the court, a lawyer is expected not only to expose the shortcomings and indiscretions of courts and judges, but such right is subject to the limitations that it shall be bona fide. It is improper to subject them to abuse and slander, degrade them or destroy public confidence in them. Moreover, a lawyer shall not attribute to a Judge motives not supported by the record or have no materiality in the case. (Rule 11.04, Code of Professional Responsibility)

COUNSEL DE OFICIO (1985, 1988, 1989, 1990, 1991, 1993, 1996, 2000, 2001, 2002, 2004) Question No. 15: When may refusal of a counsel to act as counsel de oficio be justified on grounds aside from the reasons of health, extensive travel abroad, or similar reasons of urgency? Support your answer. Answer: Other justified grounds for refusal to act as a cousel de oficio are: Too many de oficio cases assigned to the lawyer (People vs. Daeng, 49 SCRA 222); Conflict of interest (Rule 14.03, CPR); Lawyer is not in a position to carry out the work effectively or competently (supra); Lawyer is prohibited from practicing law by reason of his public office which prohibits appearances in court; and e. Lawyer is preoccupied with too many cases which will spell prejudice to the new clients. a. b. c. d.

Question No. 16: Atty. J. Bonanza, a semi-retired Metro Manila practitioner has a cattle ranch in the remote municipality of Carranglan, Nueva Ecija. He attends to his law office in Manila on Mondays, Tuesdays and Wednesdays, and the rest of the week he spends in his cattle ranch raising horses. In a criminal case pending before the Municipal Trial Court of Carranglan, the only other licensed member of the bar in the place is representing the complainant. The accused is a detention prisoner. The judge wants to expedite proceedings. a. What must the judge do to expedite proceedings? b. If Atty. Bonanza is requested to act as counsel for the accused, could he or should he refuse by saying that in the province, he wants to do nothing except ride horses and castrate bulls? Explain. Answer: a. The judge may appoint attorney Bonanza as counsel de oficio considering that the accused is a detention prisoner and there fore it is assumed that he has no financial means of engaging a paid counsel. b. The attorney cannot refuse to be appointed as counsel de oficio merely on the reason that he is a semi-retired practicing lawyer. Precisely one of the reasons for the integra tion of the bar in the Philippines is to compel all person who have been admitted to the practice of law in the Philippines to perform their duties to assist the courts in the administration of public.

RED NOTES IN LEGAL ETHICS

CONFLICT OF INTEREST (1985, 1989, 1991, 1992, 1993, 1994, 1997, 2000, 2001, 2002, 2003) Question No. 17:

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Huey Company and Dewey Corporation are both retainer clients of Atty. Anama. He is the Corporate Secretary of Huey Company. He represents Dewey Corporation in three pending litigation cases. Dewey corporation wants to file a civil case against Huey Company and has requested Atty. Anama to handle the case. 1. What are the options available to Atty. Anama? Explain your answer. 2. If you were Atty. Anama, which option would you take? Explain. Answer: 1. The options available to Atty. Anama are: a. To decline to accept the case because to do so will constitute representing conflicting interests. It is unethical for a lawyer to represent a client in a case against another client in the said case. b. To accept to file the case against Huey Company, after full disclosure to both retained clients and upon their express and written consent. The written consent may free him from the charge of representing conflicting interests, because written consent amounts to a release by the clients of the lawyers obligation not to represent conflicting interests. 2. If I were Atty. Anama, I will choose the first option and inhibit myself in the case as both entities are my clients. The conflict of interests between the contending clients may reach such a point that, notwithstanding their consent to the common representation, the lawyer may be suspected of disloyalty by one client. His continuing to act in a double capacity strikes deeply in the foundation of the attorney-client relationship.

NEGLIGENCE (1986, 1998, 2000, 2001, 2002) Question No. 18: 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 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? Answer: Yes. Atty. Nilo is guilty of gross negligence in protecting the interests 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 vs, Grageda, 237 SCRA 202, which involves similar facts, the Supreme Court held that the 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.

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ATTORNEYS FEES (1985, 1986,1990, 1991, 1998, 2001, 2002) Question No. 19: An attorney-client relationship starts from the moment the attorney is engaged or retained. a. Discuss briefly the different types of fee arrangements an attorney may enter into with his client. b. In the absence of such a fee arrangement, how would the services of an attorney be compensated? Explain. Answer:

LEGAL ETHICS & PRACTICAL EXERCISES 2005 CENTRALIZED BAR OPERATIONS


a. The following are the types of fee arrangements: 1. Retainers fee where the lawyer is paid for services for an agreed amount for the case. 2. The lawyer agrees to be paid per court appearance. 3. Contingent fee where the lawyer is paid for his services depending on the success of the case. This applies usually in civil suits for money or property where the lawyers fee is taken from the award granted by the court. 4. Attorney de Oficio. The attorney is appointed by the court to defend the indigent litigant in a criminal case. The client is not bound to pay the attorney for his services although he may be paid a nominal fee taken from a public fund appropriated for the purpose. 5. Legal Aid. The attorney renders legal services for those who could not afford to engage the services of paid counsel. 6. Quantum meruit basis. If there is no specific contract between the lawyer and the client, the lawyer is paid on quantum meruit basis, that is what the lawyer deserves for his services. b. In the absence of a fee arrangement, the lawyer is paid on a quantum meruit basis. The factors to be taken into consideration in determining the amount are: 1. The amount and character of the services rendered; 2. The labor, time and trouble involved; 3. The nature and importance of the litigation or business in which the services were rendered; 4. The amount of money or the value of he property affected by the controversy involved in the employment; 5. The skill and experience called for in the performance of the services; 6. The professional character and social standing of attorney; 7. The result secured; and 8. Whether or not the fee is absolute or contingent. (Delgado vs. dela Rama, 43 Phil. 499; Panis vs. Yangco, 52 Phil. 499)

ATTORNEY-CLIENT RELATIONSHIP (1989, 1993, 1999) Question No. 20: 1. Discuss briefly your understanding of the relationship between an attorney and his client. 2. How is such a relationship created? Explain your answer. Answer: 1. The relationship between an attorney and client is fiduciary, confidential and personal. By virtue thereof, the lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him. 2. The attorney and client relationship is created by implied or express contract. The relationship is also created if he is a court appointed counsel.

RED NOTES IN LEGAL ETHICS

RIGHTS OF CLIENTS TO DISMISS COUNSEL (1987, 1989, 1994, 1997, 1998, 2000, 2001) Question No. 21: 1. Does the client have the right to dismiss his lawyer at any time? Explain your answer. 2. Does the client have the right to hire another lawyer as collaborating counsel at any time? Explain your answer. 3. When can a lawyer validly withdraw as counsel? Explain your answer. Answer: 1. Yes, the client has the right to dismiss his lawyer anytime with or without cause. The reason is that a lawyers employment is strictly personal and highly confidential in nature. The clients loss of confidence in his lawyer deprives the relation of that special element of trust.

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2. Yes, the client has the right to hire another lawyer as collaborating counsel anytime. It is the prerogative of the client to employ as many attorneys as he may desire to protect his interest. 3. A lawyer can validly withdraw as counsel for good cause and upon notice. Canon 22, Rule 22.01 provides that a lawyer may withdraw his services in any of the following cases: a. When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling; b. When the client insists that the lawyer pursue conduct violative of these canons and rules; c. When his inability to work with co-counsel will not promote the best interest of the client; d. When the mental and physical condition of the lawyer renders it difficult for him to carry out the employment effectively; e. When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement; f. When the lawyer is elected or appointed to public office; and g. Other similar cases.

DISBARMENT (1985, 1989, 1996, 1998, 1999, 2000, 2002) Question No. 22: Ben filed proceedings for disbarment against his lawyer, Atty. Co, following the latters conviction for estafa for misappropriating funds belonging to his client (Ben). While the proceedings for disbarment was pending, the President granted absolute pardon in favor of Atty. Co. Atty. Co, then, moved for the dismissal of the disbarment case. should the motion be granted? Answer: An absolute pardon by the President is one that operates to wipe out the conviction as well 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).

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Question No. 23: Atty. Santiago was disbarred by a resolution of the Supreme Court. Five years later, Atty. Santiago filed a petition for reinstatement, alleging that he had reformed, and that he had been sufficiently punished and disciplined. However, no action was taken on the petition. In the meantime, in a proceeding for the probate of his fathers will, Atty. Santiago filed a formal opposition on his own behalf and sought to establish that the will was a forgery and that the deceased died intestate. His co-heirs questioned his appearance citing his disbarment. May the appearance of Atty. Santiago be allowed? State your reason. Answer: Atty. Santiago can properly represent himself as oppositor in the probate of the will of his father. While he has been disbarred from practice and has not been reinstated to practice law, he an properly represent himself because representing himself is not practice of law. Rule 138, Section 34 of the Rules of Court allows an individual litigant to conduct his litigation personally. It means that he can do everything in the defense of his rights in the said case. The prohibition against the practice of law by a layman or a disbarred lawyer is not in conflict with the right if an individual to defend or prosecute a cause in which he is a party. An individual has long been permitted to manage, prosecute and defend his own action, but his representation on his behalf is not considered to be the practice of law. One does not practice law by acting for himself any more than he practices medicine by rendering first aid to himself. For this reason, an attorney who is

LEGAL ETHICS & PRACTICAL EXERCISES 2005 CENTRALIZED BAR OPERATIONS


otherwise disqualified to practice law or has been disbarred or suspended from the practice, can validly prosecute or defend his own litigation, he having as much right as that of a layman in that regard.

CODE OF JUDICIAL CONDUCT


IMPROPRIETY (1990, 1999, 2003) Question No. 24: Judge A went to Hong Kong on vacation on board a Philippine Airlines plane and he stayed in a first class hotel for three days and three nights. The round trip ticket Manila Hongkong-Manila and board and lodging in the hotel where he stayed were paid for as a birthday gift to the Judge by a friend whose son has a case for estafa pending in another Branch of the Court where Judge A is assigned. Did Judge A commit any infraction of the Code of Judicial Conduct under the circumstances? Answer: Yes. He violated Canon 5, Rule 5.04 of the Code of Judicial Conduct which provides that a judge or any immediate member of the family shall not accept a gift, bequest, favor or loan from anyone except as may be allowed by law. also, Canon 2 of th same Code provides that a judge e should avoid impropriety and the appearance of impropriety in all activities. Accepting a birthday gift of a vacation in Hong Kong from a friend whose son has a case for estafa pending in another branch of the court where Judge A is assigned raises a suspicion of impropriety on his part. The fact that the case is pending in another branch is immaterial because he could be suspected of having been bribed to influence the presiding judge of the other branch. A judge shall ref rain 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).

UNDUE INTERFERENCE (1987, 1996, 2001, 2002, 2003) Question No. 25: While Ms. 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 plaintiffs counsel moved that the judge 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? Why? 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, 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. Thus, if in asking four questions alternately with counsel for the 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 the impression that he was already acting as a counsel for the defendant, his conduct is improper. B. The judge can justify his intervention on any of the grounds mentioned by the rule, namely, to promote justice, avoid waste of time, or clear up some obscurity.

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INHIBITION (1985, 1986, 1989, 1991, 1994, 1996, 1997) Question No. 26: 1. Discuss briefly the grounds for disqualification or inhibition of judges to try a case. 2. A judge rendered a decision in a criminal case finding the accused guilty of estafa. Counsel for the accused filed a motion for reconsideration which was submitted without arguments. Later, another lawyer entered his appearance for the accused. The judge issued an order inhibiting himself from further sitting in the case because the latter lawyer had been among those who recommended him to the Bench. Can the judges voluntary inhibition be sustained? Answer: 1. Under Rule 137 Section 1 of the Rules of Court, a judge is disqualified to sit in every case in which he, or his wife or child, is pecuniarily interested as heirs, legatee, creditor, or otherwise, or 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 civil law or in which he has been executor, administrator, guardian, trustee or counsel, or 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, signed by them and entered upon the record. This rule enumerates the grounds under which a judge is legally disqualified from sitting in a case, and excludes all other grounds not specified therein. The judge may, however, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above. Under said rule, the judge may voluntarily inhibit himself from sitting in a case, for just and valid reasons other than those mentioned in the rule. 2. The judge may not voluntarily inhibit himself by the mere fact that a lawyer recommended him to the Bench. In fact, the appearance of said lawyer is a test as to whether the judge can act independently and courageously in deciding the case according to his conscience. Inhibition is not allowed at every instance that a friend, classmate, associate or patron of a presiding judge appears before him as counsel for one of the parties to a case. Utang na loob, per se, should not be a hindrance to the administration of justice. Nor should recognition of such value in Philippine society prevent the performance of ones duties as judge, x x x. However, in order to avoid any suspicion of partiality, it is better for the judge to voluntarily inhibit himself.

EXTRA-JUDICIAL ACTIVITIES (1987, 1990, 1997, 2000, 2002) Question No. 27: 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? Explain.

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Answer: The judge is liable for misconduct. In the case of Dionisio vs. Escano 302 SCRA 411 (1999), the Supreme Court held that the acts of posting advertisements for restaurant personnel on the court bulletin board, using his court address to receive applications, and of screening applicants in his court, constitute involvement in private business and improper use of court facilities for the promotion of family business 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 the judges with regard to their own business interests is based on the possible interference which may be created by these business involvements in the exercise of their judicial duties which tend to corrode the respect and dignity of the courts as the bastion of justice. Judges must not allow themselves to be distracted from the performance of their judicial tasks by other lawful enterprises.

CONTEMPT (1986, 1989, 1993, 1998, 2000)

LEGAL ETHICS & PRACTICAL EXERCISES 2005 CENTRALIZED BAR OPERATIONS


Question No. 28: While Judge Tuparin was in his chambers dictating an order to a stenographer, two lawyers who were in the courtroom waiting for the start of the session almost came to blows as a result of a heated argument. Tuparin came out of his chambers and after identifying the lawyers involved in the commotion promptly declared them in contempt of court. Was the action of Judge Tuparin proper? Explain. Answer: The action of Judge Tuparin in promptly declaring the two lawyers in contempt of court was improper. The act committed by the two lawyers was indirect contempt violative of the rule punishing any improper conduct tending directly or indirectly , to impede, obstruct, or degrade the administration of justice, since the judge was then engaged in dicta ting an order before the morning session was called. The act of the two lawyers constituted obstruction of the administration of justice, which was indirect contempt. Accordingly, they could only be punished after notice and hearing.

REMITTAL OF DISQUALIFICATION Question No. 29: What is remittal of disqualification? Answer: As provided under Rule 3.13 of the Rules of Court, remittal of disqualification means that a judge disqualified to in a proceeding may, instead of withdrawing from the proceeding, disclose on the record the basis of the disqualification. If, based on such disclosure, the parties and lawyers independently of the judges participation, all agree in writing that the reason for the inhibition is immaterial or insubstantial, the judge may then participate in the proceeding. The agreement, signed by all parties and lawyers, shall be Incorporated in the record of the proceeding.

BAR TYPE QUESTIONS


PRACTICE OF LAW
NOTARY PUBLIC Heck filed a complaint praying for the disbarment of retired Judge Santos. It was alleged that Judge Santos, prior to his appointment as RTC judge, notarized documents without the requisite notarial commission therefor. Should a retired judge charged with notarizing documents without the requisite notarial commission more than twenty years ago be disciplined for such delinquency? YES. It is settled that a judge may be disciplined for acts committed prior to his appointment to the judiciary. Although the judge has already retired from the judiciary, he is still considered as a member of the bar and as such, is not immune to the disciplining arm of the Supreme Court. The fact that a judge has retired or has otherwise been separated from the service does not necessarily divest the Court of its jurisdiction to determine the veracity of the allegations of the complaint, pursuant to its disciplinary authority over members of the bench. An administrative complaint against an erring lawyer who was thereafter appointed as a judge, albeit filed only twenty-four years after the offending act was committed, is not barred by prescription. It is the duty of this Court to protect the integrity of the practice of law as well as the administration of justice. No matter how much time has elapsed from the time of the commission of the act complained of and the time of the institution of the complaint, erring members of the bench and bar cannot escape the disciplining arm of the Court. Accordingly, it must be remembered that notarization is invested with public interest, such that only those who are qualified or authorized may act as notaries public. The Court has characterized a lawyer's act of notarizing documents without the requisite commission therefore as "reprehensible, constituting as it does not only constitute malpractice, but also the crime of falsification of public documents." For such

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reprehensible conduct, the Court has sanctioned erring lawyers by suspension from the practice of law, revocation of the notarial commission and disqualification from acting as such, and eve n disbarment. Time and again, we have stressed the settled principle that the practice of law is not a right but a privilege bestowed by the State on those who show that they possess the qualifications required by law for the conferment of such privilege. Possession of good moral character is not only a prerequisite to admission to the bar but also a continuing requirement to the practice of law. A high sense of morality, honesty, and fair dealing is expected and required of a member of the bar. By his actuations, Judge Santos failed to live up to such standards; he undermined the confidence of the public on notarial documents and thereby breached Canon I of the CPR, which requires lawyers to uphold the Constitution, obey the laws of the land and promote re spect for the law and legal processes. (HEINZ R. HECK vs. JUDGE ANTHONY E. SANTOS, REGIONAL TRIAL COURT, BRANCH 19, CAGAYAN DE ORO CITY [A.M. No. RTJ -01-1657. February 23, 2004.])

DUTY OF A SHERIFF Daguman is a special assistant of the Spouses Oscar Martin and Mercedes Yvette Lopez and is authorized to represent and attend the auction sale of their property. The auction was to be held at 10:00 a.m. on August 28, 2002, at the Muntinlupa City Hall Quadrangle, National Road, Putatan, City of Muntinlupa. Daguman reported to the Office of the Clerk of Court of the RTC of Muntinlupa City, while Sheriff Bagabaldo arrived at his office at about 11:40 a.m. The sheriff assured Daguman that the auction sale would be conducted after the lunch break, upon the arrival of the mortgagee's representative. Daguman then returned to the sheriff's office at 1:05 p.m., and, to his surprise, the latter informed him that the auction sale had already been conducted at 12:20 p.m. The sheriff showed him the minutes of the auction sale indicating that the subject property was "sold" to DBS Bank of the Philippines, Inc. A complaint for dereliction of duty was filed against the sheriff. Should the sheriff be held guilty of dereliction of duty? YES. By his actuations, the sheriff displayed conduct short of the stringent standards required of court employees. He is guilty of simple neglect of duty, which has been defined as the failure of an employee to give one's attention to a task expected of him, and signifies a disregard of a duty resulting from carelessness or indifference. Sheriffs play an important role in the administration of justice and as agents of the law, high standards are expected of them. The sheriff should be reminded that as an officer of the court, he should at all t imes show a high degree of professionalism in the performance of his duties. The imperative and sacred duty of each and everyone in the court is to maintain its good name and standing as a temple of justice. The Court condemns and would never countenance any conduct, act or omission on the part of all those involved in the administration of justice, which would violate the norm of public accountability and diminish or even just tend to diminish the faith of the people in the judiciary. (RENATO M. DAGUMAN vs. MELVIN T. BAGABALDO [A.M. No. P-04-1799. March 31, 2004.])

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A notice to vacate was issued by Sheriff Amoranto regarding a writ of execution that was issued by a judge. Thereafter, the order was enforced, however, the subject ejectment was actually and illegally executed at a different premise than that referred to in the order. Should the sheriff be held liable for negligence? YES. The unfortunate incident could have been avoided had the sheriff observed due care and diligence in ascertaining the exact location of the property subject of the execution. The sheriff is a ranking officer of the court, a public official entrusted with a fiduciary role. He plays an important part in the administration of justice and is called upon to discharge his duties wi h t integrity, due care and circumspection. Anything less is unacceptable. This is because in serving the court's writs and processes and in implementing the orders of the court, sheriffs cannot afford to err without affecting the efficiency of the process of the administration of justice. Good faith on the part of the sheriff, or lack of it, in proceeding to properly execute his mandate would be of no moment, for he is chargeable with the knowledge that being an officer of the court tasked therefore, it behooves him to make due compliances. His duty in the execution of a writ is purely ministerial; he is to execute the order of the court strictly to the letter. (ANDY LOBREGAT vs.

LEGAL ETHICS & PRACTICAL EXERCISES 2005 CENTRALIZED BAR OPERATIONS


CENEN L. AMORANTO, SHERIFF III, BRANCH 36, MeTC, QUEZON CITY [A.M. No. P -04-1781. February 18, 2004.]) Notices to vacate were served to residents of San Isidro, Makati by Sheriffs Camposano and Acle. A few days thereafter, the sheriffs together with police escorts and a demolition team went to the barangay to implement the demolition order. The demolition was not implemented due to the strong resistance put up by the affected residents, including the Eberos. A heated argument ensued. In the course of the argument, the sheriffs ordered the police escorts to place the Eberos inside the patrol vehicle and bring them to Makati Police Station. A complaint for obstruction of justice were filed against the Eberos and they were detained and were released only when the charge of obstruction of justice was dismissed by the inquest prosecutor. The Eberos then filed an administrative complaint against the sheriffs. Should the sheriffs be held liable even if no adequate evidence was presented by the Eberos? NO. The quantum of proof necessary for a finding of guilt is substantial evidence or su ch relevant evidence as a reasonable mind may accept as adequate to support a conclusion. The presumption of regularity in the performance by the sheriffs of their duties must prevail. Allegations of the Eberos are not supported by those of another witness; neither are the contentions of respondents corroborated by those of another witness. In other words, the evidence on record deals only with the word of complainants to be pitted against that of respondents. Sheriff's duty to execute a judgment is ministerial. In the implementation of writs of demolition, as in the instant case, the sheriffs are mandated to use reasonable and necessary force to see that the judgment debtors vacate the premises. (INOCENCIO D. EBERO and JUANITO D. EBERO vs. MAKATI CITY SHERIFFS RAUL T. CAMPOSANO and BAYANI T. ACLE [A.M. No. P-04-1792. March 12, 2004])

ADMINISTRATIVE CASE; DESISTANCE OF COMPLAINANT Guinto filed an election case against Manlastas which requires the revision of a number of ballot boxes. Judge Flores who is handling the case appointed a revision committee which thereafter submitted its report to the court. Judge Flores then issued an Order declaring the case submitted for decision despite Manalastas objections and demands for a hearing. A complaint was thereafter filed against Judge Flores. Thereafter, the complainant withdrew his complaint. Should Judge Flores be held administratively liable even if the complainant already withdrew his complaint? YES, Judge Flores is administratively liable. The withdrawal of the complaint or the execution of an affidavit of desistance does not automatically result in the dismissal of an administrative case. To condition as administrative action upon the will of the complainant, who for one reason or another, condones a detestable act, would be to strip this Court of its power to supervise and discipline erring members of the judiciary. The withdrawal of the complaints cannot divest the Court of its jurisdiction nor deprive of its power to determine the veracity of the charges made and to discipline, such as the results of its investigation may warrant, an erring respondent . (MANALASTAS VS. JUDGE FLORES [A.M. No. MTJ-04-1523. Feb. 06, 2004.])

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Does the dismissal or withdrawal of charges and the desistance of witnesses au tomatically result in the dismissal of an administrative case? NO. The withdrawal of the complaint does not have the legal effect of automatically exonerating the respondent from any administrative disciplinary action. It does not operate to divest this Court with jurisdiction to determine the truth behind the matter stated in the complaint. Furthermore, the need to maintain the faith and confidence of the people in the government and its agencies and instrumentalities should not be made to depend on the w hims and caprices of the complainants who are, in a real sense, only witnesses therein. (ARTEMIO SABATIN vs. JUDGE EFREN B. MALLARE [A.M. No. MTJ-04-1537. March 25, 2004.])

San Beda College of Law


LEGAL ETHICS & PRACTICAL EXERCISES
ADMINISTRATIVE CASE; BURDEN OF PROOF Montes is the accused in a criminal case for estafa which is being heard by Judge Mallare. Montes then filed a complaint against Judge Mallare for allegedly conspiring with the complainant in the criminal case in having him arrested and jailed. The complaint filed by Montes was referred to an executive judge for investigation, report and recommendation. The case was scheduled for hearing but the notice thereof to Montes was returned unserved. According to the Sheriff, Montes changed residence without leaving a forwarding address. The hearing of the case was reset to another date but Montes again failed to appear. The Executive Judge recommended that as the complainant presented no evidence at all to substantiate the charges against Judge Mallare, the complaint should be dismissed for lack of evidence. Thereafter, the Office of the Court Administrator received a letter from Montes requesting that the Executive Judge be discharged as the investigating officer on the averment that he likewise instituted a complaint against the Executive Judge but it was dismissed. Is there merit in the complaint? NONE. It must be stressed that in administrative proceedings, the complainant has the burden of proving the allegations in his complaint with substantial evidence. In the absence of evidence to the contrary, the presumption that the respondent has regularly performed his duties will prevail. Even in administrative cases, if a respondent judge should be disciplined for a grave offense, the evidence against him should be competent and should be derived from direct knowledge. In this case, the complainant failed to substantiate the charges he made against the respondent judge, let alone appear before the investigating magistrate to prove his allegations. While it is our duty to investigate and determine the truth behind every matter in complaints against judges and other court personnel, it is also our duty to see to it that they are protected and exonerated from baseless administrative charges. The Court will not shirk from its responsibility of imposing discipline upon its magistrates, but neither will it hesitate to shield them from unfounded suits that serve to disrupt rather than promote the orderly administration of justice. ( MONTES VS. JUDGE MALLARE [A.M. NO. MTJ-04-1528. Feb. 06, 2004])

CODE OF PROFESSIONAL RESPONSIBILTY


CONFLICT OF INTEREST Atty. Sorsogon was Navas counsel for many years but due to the lawyers health condition, he withdrew as her counsel. However, Atty. Sorsogon allegedly represented another client in a case against Nava. Atty. Sorsogon is insisting that the attorney-client relationship between him and Nava had ceased and that his health incapacitated him from further performing his obligations. Should Atty. Sorsogon be held liable for violating the Code of Professional Responsibility by representing clients with conflicting interests even if no formal investigation was mad by the IBP? YES. At the time respondent accepted his engagement as counsel for another client and filed a case against the complainant, he was still acting as counsel for the latter in a number of cases. In complaints for disbarment, a formal investigation is a mandatory requirement. The Court may dispense with the normal referral to the Integrated Bar of the Philippines if the records are complete and the question raised is simple. Similarly, if no further factual determination is necessary, the Court may decide the case on the basis of the extensive pleadings on record. Complaints against lawyers for misconduct are normally addressed to the Court. If, at the outset, the Court finds a complaint to be clearly wanting in merit, it outrightly dismisses the case. If, however, the Court deems it necessary that further inquiry should be made, such as when the matter could not be resolved by merely evaluating the plea dings submitted, a referral is made to the IBP for a formal investigation of the case during which the parties are accorded an opportunity to be heard. (MERCEDES NAVA vs. ATTY. BENJAMIN P. SORSOGON [A.C. No. 5442. January 26, 2004])

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ATTORNEYS FEES A deed of sale covering a parcel of land located in Baguio was executed by Malecdan and Eliza Fanged. The amount paid by the former was received by Eliza Fanged and deposited in the account of Atty. Artemio Bustamante, then counsel for the latter. It was found out later by Malecdan that the land is subject to a controversy. When Atty. Bustamante refused to release the proceeds of the sale to Eliza Fanged, the latter, through her new counsel respondent Atty. Kollin, filed a complaint for rescission of contract. A compromise agreement was then executed wherein Malecdan was not a signatory as she was in the United States at the time. The money was then transferred to the respective accounts as prayed for in the compromise settlement. Thereafter, Malecdan filed a complaint charging Atty. Kollin, with violation of the lawyer's oath, on the account that the lawyer knowingly caused the withdrawal from the bank of the purchase price of the lot in question, despite their knowledge of a defect in their client's right to claim the said amount. Does the lawyer have the right to apply the subject amount as payment of their professional fees despite the existence of a dispute on the legality of the amount? NONE. A lawyer may legally apply a client's funds in his possession to satisfy professional fees which the client owes him, in the absence of any dispute as to the legality of the amount thereof. However, the fact that a lawyer has a lien for his fees on the client's money in his possession or the circumstance that the client owes him more than the client's funds in his hands may not excuse him from making an accounting nor entitle him to unilaterally apply the client's money to satisfy his disputed claims. It is a settled principle that the compensation of a lawyer should be but a mere incident of the practice of law, the primary purpose of which is to render public service. The practice of law is a profession and not a money -making trade. As they are an indispensable part of the system of administering justice, attorneys must comply strictly with the oath of office and the canons of professional ethics a duty more than imperative during these critical times when strong and disturbing criticisms are hurled at the practice of law. Canon 1 of the Code of Professional Responsibility mandates all members of the bar to obey the laws of the land and promote respect for the law. Rule 1.01 of the Code specifically provides that "a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct." A lawyer is expected, at all times, to uphold the integrity of the legal profession. Whenever it is made to appear that a lawyer is no longer worthy of the trust and confidence of the public, it becomes not only the right but the duty of the Court which made him one of its officers and gave him the privilege of ministering within its bar to withdraw the privilege. (MARY D. MALECDAN vs. ATTY. PERCIVAL L. PEKAS and ATTY. MATTHEW P. KOLLIN [A.C. No. 5830. January 26, 2004.])

CODE OF JUDICIAL CONDUCT


GROSS IGNORANCE OF LAW Cortes filed an administrative complaint against three Justices claiming that the proceedings made before the Sandiganbayan were irregular, as it terminated the case without the defense having conducted a cross-examination on him to rebut the direct testimonies against the accused. Cortes also questioned the pronouncement made by the Sandiganbayan that "he slept on his rights" for failing to redeem the property in question within the one -year period as required under the law. He avers that there was no need for him to redeem the property as the auction sale was not duly registered with the Register of Deeds of the Province of Bataan, hence, null and void. Should the complaint filed by Cortes prosper? NO. It must be stressed that as a matter of policy, the acts of a judge in his judicial capacity are not subject to disciplinary action. He cannot be subjected to liability civil, criminal or administrative for any of his official acts, no matter how erroneous, as long as he acts in good faith. Only judicial errors tainted with fraud, dishonesty, gross ignorance, bad faith or deliberate intent to do an injustice will be administratively sanctioned. To hold otherwise would be to render judicial office untenable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in his judgment. The provisions of Article 204 of the Revised Penal Code as to "rendering knowingly unjust judgment" refer to an individual judge who does so "in any case submitted to him for decision" and has no application to the members of a

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collegiate court such as the Sandiganbayan or its divisions, who reach their conclusions in consultation and accordingly render their collective judgment after due deliberation. The remedy of the aggrieved party is not to file an administrative complaint against the judge, but to elevate the assailed decision or order to the higher court for review and correction. An administrative complaint is not an appropriate remedy where judicial recourse is still available, such as a motion for reconsideration, an appeal, or a petition for certiorari, unless the assailed order or decision is tainted with fraud, malice, or dishonesty. (LEONIDES T. CORTES vs. SANDIGANBAYAN JUSTICES MINITA V. CHICO-NAZARIO, MA. CRI STINA G. CORTEZ-ESTRADA and RODOLFO G. PALATTAO [A.M. No. SB-04-11-J. February 13, 2004.])

A complaint was filed against Judge Pamintuan for ignorance of the law and arrogance. It was alleged that in seventeen different cases, Judge Pamintuan had misapp lied the Indeterminate Sentence Law. Furthermore, complainants also alleged that Judge Pamintuan insults lawyers by means of intemperate and harsh words in the presence of litigants in public and that he verbally assault lawyers. Furthermore, he promulgated decisions with copies thereof not readily released to the parties. Should Judge Pamintuan be disciplined administratively? YES. The application of the Indeterminate Sentence Law in the imposition of penalties in crimes punishable by the Revised Penal Co is a basic precept. Judge Pamintuans repeated de misapplication thereof in quite a number of criminal cases he had rendered constitutes gross ignorance of the law. A judge is presumed to know the law and when the law is so elementary, not to be aware of it constitutes gross ignorance of the law. Indeed, judges are duty bound to have more than a cursory acquaintance with laws and jurisprudence. Failure to follow basic legal commands constitutes gross ignorance of the law from which no one may be excused, n even a ot judge. With regards to the other allegation, 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 without being petty, arbitrary, overbearing, or tyrannical. He should refrain from conduct that demeans his office and remember always that courtesy begets courtesy. Above all, he must conduct himself in such a manner that he gives no reason for reproach. Clearly, the respondent judge has failed to observe courtesy and civility to the lawyers as well as to the litigants who appeared before him. The Court frowns upon the highly irregular practice of the respondent judge of promulgating a deci sion, copies of which were not then ready for release to the parties. (THE OFFICERS AND MEMBERS OF THE IBP BAGUIO-BENGUET CHAPTER vs. FERNANDO VIL PAMINTUAN [A.M. No. RTJ -02-1691. January 16, 2004.])

Should a judge be held administratively liable for ignorance of the law for granting bail to an accused in a criminal case without the requisite bail hearing, and despite the fact that there was an eyewitness to the murder who made a positive identification of the accused? YES. It is already settled that when a judge grants bail to a person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment without conducting the required bail hearing, he is considered guilty of ignorance or incompetence the gravity of which cannot be excused by a claim of good faith or excusable negligence. When a judge displays an utter unfamiliarity with the law and the rules, he erodes the confidence of the public in the courts. A judge owes the public and the court the duty to be proficien in the law and is expected to keep t abreast of laws and the prevailing jurisprudence. Ignorance of the law by a judge can easily be the mainspring of injustice. (JOCELYN V. GRAGEDA vs. JUDGE NIETO T. TRESVALLES [A.M. MTJ No. 04-1526. February 2, 2004])

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PROMPT DISPOSITION OF CASES Imbang is the plaintiff in a case involving a collection of money with damages. Judge del Rosario failed to decide on the case within the 90-day reglementary period and even after the

LEGAL ETHICS & PRACTICAL EXERCISES 2005 CENTRALIZED BAR OPERATIONS


lapse of ten months, the judge had not yet resolved the case. Should Judge del Rosario be sanctioned administratively for his failure to resolve a case within the reglementary period? YES. The Failure Of A Judge To Immediately Resolve Pending Motions and to Decide Cases Within The 90-Day Reglementary Period Constitutes Gross Inefficiency. Rule 3.05 of The Code of Judicial Conduct requires judges to dispose of the court's business promptly and to act, one way or the other, on cases pending before him within the prescribed period therefore. Undue de in lay resolving a pending motion constitutes gross inefficiency. Delay results in undermining the people's faith in the judiciary and from whom the prompt hearing of their supplications is anticipated and expected, and reinforces in the mind of the litigants the impression that the wheels of justice grind ever so slowly. Certainly, undue delay cannot be countenanced at a time when the clogging of the court dockets is still the bane of the judiciary. Judges are expected to observe utmost diligence and dedication in the performance of their judicial functions and the discharge of their duties. Judge Del Rosario is meted with a fine in the amount of Ten Thousand Pesos. (DOLORES IMBANG vs. JUDGE DEOGRACIAS K. DEL ROSARIO [A.M. No. MTJ -03-1515. February 3, 2004.]) Should a judge be disciplined for his failure to decide the election cases within the reglementary period? YES. Judges should dispose of court business promptly within the period prescribed by law or the extended time granted them by this Court. This is mandated by Rule 3.05 of Canon 3 of the Code of Judicial Conduct, and by no less than the Constitution itself. Canon 6 reminds a judge to be prompt in disposing of all matters submitted to him or her, remembering that justice delayed is often justice denied. Delay in the disposition of cases erodes the faith and confidence of the public in the institution of justice, lowers its standards and brings them into disrepute. Every judge must cultivate a capacity for quick decision; he must not delay the judgm ent which a party justly deserves. The public trust reposed in a judges office imposes upon him the highest degree of responsibility to promptly administer justice. The Court, however, is not unaware of the heavy caseload of judges and the rigors of tra vel that they sometimes have to make because of detail to vacant salas. It is precisely for this reason that the Court has been sympathetic to requests for extensions of time within which to decide cases and resolve matters and incidents related thereto. Indeed, the Court allows a certain degree of latitude to judges and grants them a reasonable extension of time to decide and resolve cases upon proper application by the judge concerned and on meritorious grounds.(ROMERO TEODOSIO, ROLANDO RICO vs. HON. JUD GE ARTURO R. CARPIO [A. M. No. MTJ-02-1416. February 27, 2004])

PARTIALITY Does a judges active participation during the hearing of the writ of preliminary injunction amount to an evident display of his bias and partiality in favor of the private respo ndents and should he therefore disqualify himself from further hearing the civil case?

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NO. Paragraph (2), Section 1 of Rule 137, Rules of Court, provides that a judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned in the said provision. But it does not give judges the unfettered discretion to decide whether to desist from hearing a case. The inhibition must be for just and valid reasons. The mere imputation of bias or partiality is not enough ground for them to inhibit, especially when the charge is without basis. Mere intervention of the respondent judge during the hearing of preliminary injunction by simply asking the materiality of a question directed upon the witness and ruling against the petitioners are within the prerogatives and powers of the judge. The fact that the judge asked questions in the course of the trial does not make him a biased judge. It is not only the right but also the duty of a trial judge to examine witnesses when it appears necessary for the elucidation of the record. A judge may also properly intervene in the presentation of evidence to expedite and prevent unnecessary waste of time and clarify obscure and incomplete details after the witness has given direct testimony. Mere suspicion of partiality is not enough. There should be hard evidence to prove it, as well as a manifest showing of bias and partiality stemming from extrajudicial source or some other basis. In the absence of clear an convincing d

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evidence to prove the charge, a ruling not to inhibit oneself cannot just be overturned. Furthermore, just because the opinion of a party is at variance with that of the judge, the former cannot use it as an excuse to hurl imputations of unfairness and partiality in the absence of clear and convincing proof. (SPOUSES LEOPOLDO HIZON and PERLITA DELA FUENTE HIZON vs. SPOUSES GIGI DELA FUENTE and JOSEPHINE MANGAHAS, SPOUSES JORGE MAGBITANG and ADELAIDA VILLACORTA MAGBITANG [G.R. No. 152328. March 23, 2004.])

LANDMARK DECISIONS
LEGAL ETHICS
ADMISSION TO THE PRACTICE OF LAW The Supreme Court and the Philippine Bar have always tried to maintain a high standard for the legal profession, both in academic preparation and legal training, as well as in honesty and fair dealing. One of the ways of achieving this end is to admit to the practice only those persons who are known to be honest, possess good moral character, and show proficiency in and knowledge of the law by the standard set by this Court by passing the Bar Examinations honestly and in the regular and usual manner. Consequently, any charge or insinuation of anomaly in the conduct of Bar Examinations, of necessity is imbued with wide and general interest and material importance. (In Re Investigation of Angel Parazo [82 Phil 230. December 3, 1948])

PRACTICE OF LAW The right to practice law proceeds not from the territorial boundaries of the licensing authority but within the jurisdiction of the licensing authority. Petitioner has confused her license to practice law in the Philippines to include the courts of other jurisdiction located within the Philippine territory. The US Naval Courts Martial are courts duly constituted and under the jurisdiction of the US government. They are not extensions of Philippine Courts. They function independently and are guided by their own rules of procedure. (Fidela Vargas vs. Kilcline [No. 142 SCRA 232. June 6, 1986]) Practice of law under modem conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys (Cayetano vs. . Monsod, [G.R. No. 100113, September 3,1991])

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PRACTICE OF LAW; PATENT OFFICE Members of the Philippine Bar authorized to practice law, and in good standing, may practice their profession before the Patent Office, for the reason that much of the business in said office involves the interpretation and determination of the scope and application of the Patent Law and other laws applicable, as well as the presentation of evidence to establish facts involved; that part of the functions of the Patent director are judicial or quasi-judicial, so much so that appeals from his orders and decisions are, under the law, taken to the Supreme Court. (Philippine Lawyers Association vs. Agrava [G.R. NO . L-12426. February 16, 1959])

POWER OF CONGRESS TO REGULATE THE BAR The Bar Flunkers Act of 1953 is not a legislation; it is a judgment - a judgment promulgated by this Court during the aforecited years affecting the bar candidates concerned; and although this Court certainly can revoke these judgments even now, for justifiable reasons, it is no less certain that only this Court, and not the legislative nor executive department, that may do so. Any attempt on the part of these departments would be a clear usurpation of its function, as is the case with the law in question. The ultimate power to grant license for the practice of law belongs exclusively to this Court, and the law passed by Congress on the matter is of permissive character, or as other authorities say, merely to fix the minimum conditions for the license. (In re Cunanan [94 Phil. 534 (1954)])

LAWYERS IN THE GOVERNMENT SERVICE The Code of Professional Responsibility applies to lawyers in government service in the discharge of their official tasks (Canon 6). Just as the Code of Conduct and Ethic Standards for al Public Officials requires public officials and employees to process documents and papers expeditiously and prohibits them from directly or indirectly having a financial or material interest in any transaction requiring the approval of their office, and likewise bars them from soliciting gifts or anything of monetary value in the course of any transaction which may be affected by the functions of their office, the Code of Professional Responsibility forbids a lawyer to engage in unlawful, dishonest, immoral or deceitful conduct (Rule 1.01, Code of Professional Responsibility), or delay any man's cause "for any corrupt motive or interest" (Rule 1.03). (Collantes vs. Renomeron [200 SCRA 584. August 16, 1991])

CLERK OF COURT There can be no question that personal differences and family problems are not lawful grounds and valid justification for the frequent absences of an employee in the public service. Pursuant to Civil Service Act (P.D. No. 807), frequent unauthorized absences are grounds for disciplinary action and the Court considers respondents misconduct, a dereliction of duty and, therefore, prejudicial to the public service. (Hon. J. Cezar Sangco vs. Francisca Hidalgo [84 SCRA 816. December 27, 1979])

RED NOTES IN LEGAL ETHICS

LEGAL PROFESSION vs. BUSINESS A partnership for the practice of law cannot be likened to partnerships formed by other professionals or for business. A partnership for the practice of law is not a legal entity. It is a mere relationship or association for a particular purpose. It is not a partnership formed for the purpose of carrying on trade or business or of holding property." Thus, it has been stated that "the use of a nom de plume, assumed or trade name in law practice is improper. Primary characteristics which distinguish the legal profession from business are: 1. A duty of public service, of which the emolument is a byproduct, and in which one may attain the highest eminence without making much money.

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2. A relation as an "officer of the court" to the administration of justice involving thorough sincerity, integrity, and reliability. 3. A fiduciary relation to clients in the highest degree. 4. A relation to colleagues at the bar characterized by candor, fairness, and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients. (In re Sycip [July 30, 1979])

LAWYERS SIGNATURE IN A PLEADING A lawyers signature in a pleading constitutes a certificate by him that to the best of his knowledge, information and belief, there is a good ground to support it and that it is not interposed for delay. This rule imposes upon a lawyer the affirmative duty to check useless litigations, willful violations of which may subject him to appropriate disciplinary action. (Arambulo vs. Perez [G.R. No. L-185. April 30, 1947])

CODE OF PROFESSIONAL RESPONSIBILITY


ADVERTISING THE LEGAL PROFESSION It is highly unethical for an attorney to advertise his talents or skill as a merchant advertises his wares. Law is a profession and not a trade. Under Canon 27 of the Code of Professional Ethics, The most worthy and effective advertisement possible, even for a young lawyer is the establishment of a well-merited reputation for professional capacity and fidelity to trust. This cannot be forced but must be the outcome of character and conduct. (The Director of Religious Affairs vs. Estanislao Bayot [74 Phil 749. March 20, 1944])

ADVERTISING A lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts. He is not supposed to use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services. Nor shall he pay or give something of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business. Prior to the adoption of the Code of Professional Responsibility, the Canons of Professional Ethics had also warned that lawyers should not resort to indirect advertisements for professional employment, such as furnishing or inspiring newspaper comments, or procuring his photograph to be published in connection with causes in which the lawyer have been engaged or concerning the manner of the conduct, the magnitude of the interest involved, the importance the lawyer's position, and all other like self-laudatory claims. (Ulep vs. Legal Clinic [223 SCRA 378. June 17, 1993])

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SOLICITATION OF CASES The agreement is void because it was tantamount to malpractice which is the practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers. Malpractice ordinarily refers to any malfeasance or dereliction of duty committed by a lawyer. The practice of law is a profession, not a business. The lawyer may not seek or obtain employment by himself or through others for to do so would be unprofessional. (Tan Tek Beng vs. Timoteo A. David [126 SCRA 389. December 29, 1983])

USE OF DISRESPECTFUL LANGUAGE IN THE PLEADINGS A lawyer is an officer of the courts; he is, like the court itself, an instrument or agency to advance the ends of justice. His duty is to uphold the dignity and authority of the courts to whi h c

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he owes fidelity, not to promote distrust in the administration of justice. It bears emphasis that the use in pleadings of language disrespectful to the court or containing offensive personalities serves no useful purpose and on the contrary constitutes direct contempt. (In Re: Rafael C. Climaco [55 SCRA 107. January 21, 1974])

USE OF INTEMPERATE LANGUAGE; RESPECT FOR THE JUDICIARY The Court finds Atty. Sangcos remarks in his motion for reconsideration, disparaging, intemperate, and uncalled for. His suggestions that the Court might have been guilty of graft and corruption in acting on these cases are not only unbecoming, as well, as an open assault upon the Courts honor and integrity. In rendering its judgment, the Court yielded to the records before it, and to the records alone, and not to outside influences, much less, the influence of any of the parties. Atty. Sangco, as a former judge of an inferior court, should know better that in any litigation, one party prevails, but his success will not justify indictments of bribery by the other party. He should be aware that because of his accusations, he has done an enormous disservice to the integrity of the highest tribunal and to the stability of the administration of justice in general. Atty. Sangco is entitled to his opinion, but not to a license to insult the Court with derogatory statements and recourses to argumenta ad hominem. (Jose Sangalang, et. al. vs. Intermediate Appellate Court [177 SCRA 87. August 30, 1989])

DUTY OF ATTORNEY TO BE PURE AND TO APPEAR TO BE SO Court advise lawyers to be like Caesar's wife to be pure and to appear to be so. This stern rule is designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well as to protect the honest lawyer from unfounded suspicion of unprofessional practice. It is founded on principles of public policy, on good taste. As has been said in another case, the question is not necessarily one of the rights of the parties, but as to whether the attorney has adhered to proper professional standard. With these thoughts in mind, it behooves attorneys, like Caesar's wife, not only to keep inviolate the client's confidence, but also to avoid the appearance of treachery and double-dealing. Only thus can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of justice. (Hilado vs. David [84 Phil. 571])

DUTY OF ATTORNEY TO HONOR HIS OATH; EFFECT OF FAILURE THEREOF Attorneys are reminded of their solemn oath upon their admission to the Philippine Bar that they will do no falsehood and conduct themselves as lawyers according to the best of their knowledge and discretion with all good fidelity to the courts and their clients. The unsatisfactory explanation given by Atty. Delante as against the pleadings of record in the case at bar evinces a willful disregard of his solemn duty as an attorney to employ in the conduct of a case such means only as are consistent with truth and honor, and never seek to mislead the courts by an artifice or false statement of fact or law. The Court has ever stressed that a lawyer must do his best to honor his oath, as there would be a great detriment to, if not failure of, the administration of justice if courts could not rely on the submissions and representations made by lawyers in the conduct of a case. As stated by the Court in one case, "Time and time again, lawyers have been admonished to remember that they are officers of the court, and that while they owe their clients the duty of complete fidelity and the utmost diligence, they are likewise held to strict accountability insofar as candor and honesty towards the court is concerned." (Liberato Casals, et. al. vs. Hon. Vicente N. Cusi, Jr. [52 SCRA 58. July 12, 1973])

RED NOTES IN LEGAL ETHICS

DUTY OF A LAWYER TO OBEY LAWFUL ORDERS OF THE COURT Consistent with respondent's failure to file an answer to the complaint herein filed against him, he also did not appear, despite due notice on the four occasions when the hearing of the present complaint was set at the Office of the Solicitor General. Neither has respondent shown concern or interest about the status of the complaint filed against him. The inaction of respondent

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to the resolutions of this Honorable Court requiring him to file his Answer to the Complaint filed against him and his subsequent failure to attend the hearings on the said complaint indicate that respondent has not obeyed the legal orders of the duly constituted authorities and he has not conducted himself as a lawyer according to the best of his knowledge and discretion with all good fidelity as well to the courts as to his clients (Sec. 3, Rule 138, Rules of Court). Further, lawyers are particularly called upon to obey court orders and processes. They should stand foremost in complying with the court's directives or instructions being themselves officers of the court (p. 75, Legal Ethics, Ruben Agpalo, 2nd Ed.). This lack of concern shown by respondent regarding the matter that involved the very foundation of his right to engage in the practice of law would show how much less he would regard the interest of his clients." (Ngayen vs. Tugade [193 SCRA 779. 1991])

NEGLIGENCE OF COUNSEL As a general rule, a client is bound by his counsel's conduct, negligence, and mistakes in handling the case during the trial. However, the rule admits of exceptions. A new trial may be granted where the incompetency of counsel is so great that the defendant is prejudiced and prevented from fairly presenting his defense. Where a case is not tried on t merits because of he the negligence of counsel rather than the plaintiff, the case may be dismissed but, in the interest of justice, without prejudice to the filing of a new action. Clearly, petitioner was deprived of her right to present and prove her defense due to the negligence of her counsel. The appearance of a certain Atty. Buen Zamar is of no moment as there was no client-attorney relationship between him and petitioner who did not engage his services to represent her in said cases. The fact that n otices of the promulgation of judgment were sent to petitioner at her address of record produced no legal consequence because notice to a party is not effective notice in law. (Romina Suarez vs. Court of Appeals [220 SCRA 274. March 22, 1993[)

EXCEPTION TO THE RULE THAT THE MISTAKE OF THE LAWYER BINDS THE CLIENT While this Court is cognizant of the rule that, generally, a client will suffer the consequences of the negligence, mistake or lack of competence of his counsel, in the interest of justice and equity, exceptions may be made to such rule, in accordance with the facts and circumstances of each case. Adherence to the general rule would, in the instant case, result in the outright deprivation of their property through a technicality. The Court finds that the negligence of counsel in this case appears to be so gross and inexcusable. This was compounded by the fact, that after petitioner gave said counsel another chance to make up for his omissions by asking him to file a petition for annulment of the judgment in the appellate court, again counsel abandoned the case of petitioner in that after he received a copy of the adverse judgment of the appellate court, he did not do anything to save the situation or inform his client of the judgment. He allowed the judgment to lapse and become final. Such reckless and gross negligence should not be allowed to bind the petitioner. Petitioner was thereby effectively deprived of her day in court. (Victoria Legarda vs. Court of Appeals [195 SCRA 418. March 18, 1991])

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EXCEPTION TO THE RULE THAT A CLIENT IS BOUND BY THE MISTAKES OF HIS LAWYER Petitioners right to appeal should not be lost through technicalities. His liberty is at stake. He faces a jail term of 17 years and 4 months to 20 years. If he has to spend this long stretch in prison, his guilt must be established beyond reasonable doubt. He cannot lose his liberty because of the gross irresponsibility of his lawyer. Losing liberty by default of an insensitive lawyer should be frowned upon despite the fiction that a client is bound by the mistakes of his lawyer. (Aceyork Aguilar vs. Court of Appeals and the People of the Philippines [250 SCRA 371. November 28, 1995])

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DUTY OF A LAWYER TO RETURN THE PROPERTY OF HIS CLIENT ENTRUSTED TO HIM A lawyer, under his oath, pledges himself not to delay any man for money or malice and is bound to conduct himself with all good fidelity to his clients. He is obligated to report promptly the money of his clients that has come into his possession. He should not commi gle it with his n private property or use it for his personal purposes without his clients consent. He should maintain a reputation for honesty and fidelity to private trust. (Fermina Legaspi Daroy, et. al. vs. Atty. Ramon Chaves Legaspi [65 SCRA 304. July 25, 1975])

APPEARANCE OF COUNSEL The appearance of a lawyer, as counsel for a party and his participation in a case as such counsel does not make him a party to the action. The fact that he represents the interests of his client or that he acts in their behalf will not hold him liable for or make him entitled to any award that the court may adjudicate to the parties, other than his professional fees. The principle that a counterclaim cannot be filed against persons who are acting in representation of another in their individual capacities could be applied with more force and effect in the case of a counsel whose participation in the action is merely confined to the preparation of the defense of his client. (Marcelo de Borja vs. Juan de Borja [No. L-6622. July 31, 1957])

SUBSTITUTION OF ATTORNEYS; REQUISITES The settled rule is that in order that there may be a valid substitution of attorneys in a given case, there must be (a) a written application for substitution; (b) a written consent of the client; and (c) a written consent of the attorney to be substituted. In case the consent of the attorney to be substituted cannot be obtained, there must at least be proof that notice of the motion for substitution has been served upon him in the manner prescribed by the rules. In law it is assumed prima facie that every attorney who appears in court does so with sufficient authority. The fact that a second attorney enters an appearance on behalf of a litigant does not authorize a presumption that the authori y of the first attorney has been withdrawn, t There is no question that a party may have two or more lawyers working in collaboration as his counsel in a given litigation. Here, petitioner's counsel, Atty. Vasquez, not only affirmed his continued connection with the case, but also explained Atty. Hermosisima's appearance as collaborating counsel. While it may be desirable in the interest of an orderly conduct of judicial proceedings, that a counsel for a party should file with the court his formal written appearance in the case, before filing a pleading therein, or mention in said pleading that he is submitting the same in collaboration with the counsel of record, the mere circumstance that such acts were not done does not warrant the conclusion that the plea ding filed by such counsel has no legal effect whatsoever. (Ong Ching vs. Hon. Jose Ramolete, et. al. [51 SCRA 13. May 18, 1973])

WITHDRAWAL AS COUNSEL DE OFICIO There was no incompatibility between the duty of petitioner to the accused and to the court and the performance of his task as an election registrar of the Commission on Elections and that the ends of justice would be served by allowing and requiring Mr. Ledesma to continue as counsel de oficio, since the prosecution has already rested its case The role of a member of the . Bar in the defense of an accused is indispensable. Such consideration could have sufficed for petitioner not being allowed to withdraw as counsel de oficio. There are times, and this is one of them, when duty to court and to client takes precedence over the promptings of self -interest. (Antonio Ledesma vs. Hon. Rafael Climaco [57 SCRA 473. June 28, 1974])

RED NOTES IN LEGAL ETHICS

WITHDRAWAL OF COUNSEL It is not disputed that the Withdrawal of Appearance of Atty. Jose Jimenez, Jr. was filed with the trial court on February 12, 1991. Since the withdrawal was with the clients consent, no 25

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approval thereof by the trial court was required because a court approval is indispensable only if the withdrawal is without the clients consent. The retirement is completed once the withdrawal is filed in court. No further action thereon by the court is needed other than the mechanical act of the clerk of court of entering the name of the new counsel in the docket and of giving written notice thereof to the adverse party. The failure of the clerk of court to do either does not affect the validity of the retirement. The appearance of the new counsel, Atty. Pineda, did not likewise require the approval of the court. An appearance may be made by simply filing a formal motion, plea or answer, or through the formal method, viz., by delivering to the clerk of court a written direction ordering him to enter the appearance of the counsel. The latter method is exactly what Atty. Pineda followed. (Eloisa Arambulo, et. al. vs. Court of Appeals and Engr. Danilo Ferreras [226 SCRA 589. September 17, 1993])

ATTORNEYS FEES When there was no express agreement between petitioner Corpus and respondent David as regards attorneys fees, the facts of the case support the po sition of respondent David that there was at least an implied agreement for the payment of attorneys fees. Petitioners act of giving the check of P2,000.00 through his April 18, 1962 letter to respondent David indicates petitioners commitment to pay the former attorneys fees, which is stressed by expressing that I wish I could give more but as you know we were banking on a SC decision reinstating me and reimbursing my back salaries. This last sentiment constitutes a promise to pay more upon his rein statement and payment of his back salaries. The absence of an express contract for attorneys fees between respondent David and petitioner Corpus is no argument against the payment of the attorneys fees, considering their close relationship which signifies mutual trust and confidence between them. (Marino Corpus vs. Court of Appeals and Juan T. David [98 SCRA 424. June 30, 1980]) QUANTUM MERUIT This court has repeatedly fixed counsel fees on a quantum meruit basis whenever the fees stipulated appear excessive, unconscionable, or unreasonable, because a lawyer is primarily a court officer charged with the duty of assisting the court in administering impartial justice between the parties, and hence, his fees should be subject to judicial control. Nor it should be ignored that sound public policy demands that courts disregard stipulations for counsel fees whenever they appear to be a source of speculative profit at the expense of the debtor or mortgagor. (Bachrach vs. Golingco, 39 Phil. 138 (1918)])

CONTINGENT FEE CONTRACT An attorney hired on a contingent arrangement and whose services were terminated by his clients because of his refusal to represent them in the out of court settlement of their claims, has no right to interfere in the implementation of the settlement agreement in his efforts to collect attorneys fees not due him. (Celia B. Chua, et. al. vs. National Labor Relations Commission [190 SCRA 554. October 17, 1990])

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RETAINING LIEN Construing Section 37 of Rule 138 of the Revised Rules of Court, there is no question that a lawyer has a retaining lien upon the funds, documents and papers of his client that may have lawfully come into his possession until his lawful fees are duly paid. However, where the appellant lawyer was appointed by the former administrator of the estate and such appointment was not in pursuance to any court order, nor was it approved by the probate court, it should be regarded as an act personal to the administrator. The creation of professional relationship between the appellant and the administrator did not, therefore, make the estate also a client of the said lawyer. Consequently, the appellant cannot claim to have a retaining lien over any funds, papers or

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documents belonging to the estate, even if these properties may have come into his possession in the course of his work as such counsel for the administrator. (Testate Estate of Amadeo Matute Re Incident on the Retaining Lien of Atty. Antonio Enrile Inton vs. Julian Villanueva Matute [17 SCRA 1010. August 31, 1966])

INTEGRATED BAR OF THE PHILIPPINES


MEMBERSHIP IN THE INTEGRATED BAR OF THE PHILIPPINES To compel a lawyer to be a member of the Integrated Bar is not violative of the constitutional freedom to associate. A lawyer becomes a member of the Bar when he passed the Bar Examinations. All that integration actually does is provide an official national organization for the well-defined but unorganized and incohesive group of which every lawyer is already a member. The Supreme Court, in order to further the States legitimate interest in elevating the quality of professional legal services, may require that the cost of improving the profession in this fashion be shared by the subjects and beneficiaries of the regulatory program the lawyers. (In Re Atty. Marcial A. Edillon [84 SCRA 554. August 3, 1978])

S USPENSION AND DISBARMENT


DISBARMENT That the misconduct committed by Atty. Almacen is of considerable gravity cannot be overemphasized. However, heeding the stem injunction that disbarment should n ever be decreed where a lesser sanction would accomplish the end desired, and believing that it may not perhaps be futile to hope that in the sober light of some future day, Atty. Almacen will realize that abrasive language never fails to do disservice to an advocate and that in every effervescence of candor there is ample room for the added glow of respect, it is our view that suspension will suffice under the circumstances. His demonstrated persistence in his misconduct by neither manifesting repentance nor offering apology therefor leave us no way of determining how long that suspension should last and, accordingly, we are impelled to decree that the same should be indefinite. (In Re Almacen [31 SCRA 562. February 18, 1970])

TO BE EXERCISED WITH GREAT C AUTION The power to disbar must be exercised with great caution. Only in a clear case of misconduct that seriously affects the standing and character of the lawyer as an officer of the Court and member of the bar will disbarment be imposed as a penalty. It should never be decreed where a lesser penalty, such as temporary suspension, would accomplish the end desired. (Montano vs. Integrated Bar of the Philippines [A.C. No. 4215, 21 May 2001, 358 SCRA 1])

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DUTY AND RIGHT OF COURT TO INSTITUTE UPON ITS OWN MOTION SUSPENSION OR DISBARMENT PROCEEDINGS WHEN CIRCUMSTANCES DEMAND THE FILING THEREOF It should be observed that proceedings for the disbarment of members of the bar are not in any sense a civil action where there is a plaintiff and the respondent is a defendant. Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are undertaken and prosecuted solely for the public welfare. They are undertaken for the purpose of preserving courts of justice from the official ministration of persons unfit to practice in them. The attorney is called to answer to the court for his conduct as an officer of the court. The complainant or the person who called the attention of the court to the attorney's alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper administration of justice. The court may therefore act upon its own motion and thus be the initiator of the proceedings, because, obviously the court may investigate into the conduct of its own officers. Indeed it is not only the right but the duty of the Court to institute upon its own

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motion, proper proceedings for the suspension or the disbarment of an attorney, when from information submitted to it or of its own knowledge it appears that any attorney has so conducted himself in a case pending before said court as to show that he is wanting in proper measure of respect for the court of which he is an officer, or is lacking in the good character essential to his continuance as an attorney. This is for the protection of the general public and to promote the purity of the administration of justice. (Alfredo Tejan vs. Hon. Vicente N. Cusi, Jr. [57 SCRA 154. May 30, 1974])

CODE OF JUDICIAL CONDUCT


PROPRIETY The three (3) meetings by Judge Abastillas with interested parties who had a stake on the outcome of the criminal case and the recorded telephone conversation where said cases were discussed manifested Judge Abastillas willingness, nay, propensity to enter into deals with motivation incongruous to the merits of the cases pending before him. Judge Abastillas committed serious misconduct no less. It is peculiarly essential that the system for establishing and dispensing justice be developed to a high degree of proficiency, to gain the absolute confidence of the public in the integrity and impartiality of its administration, because appearance is as important as reality, so much so that a judge, like Cesars wife, must not only be pure but b eyond suspicion. (Johnson Lee and Sonny Moreno vs. Hon. Renato E. Abastillas [234 SCRA 29. July 11, 1994])

INHIBITION OF JUDGES Inhibition is not allowed at every instance that a friend, classmate, associate or patron of a presiding judge appears before him as counsel for one of the parties to a case. "Utang na loob", per se, should not be a hindrance to the administration of justice. Nor should recognition of such value in Philippine society prevent the performance of one's duties as judge. However, whe as in this re, case, the judge admits that he may be suspected of surrendering to the persuasions of utang na loob or he may even succumb to it considering that he "and the members of his family, no less, shall ever remain obliged in eternal gratitude to Justice Reyes", the negative answer to the question of judge Elizaga yields to exceptions in extraordinary cases. (Judges Masadao and Elizaga Re: Criminal Case No. 4954-M) A judge may not be legally prohibited from sitting in a litigation, this when sugges tion is made of record that he might be induced to act in favor of one party or with bias or prejudice against a litigant arising out of circumstances reasonably capable of inciting such a state of mind, he, should conduct a careful self-examination. He .should exercise his discretion in a way that the people's faith in the courts of justice is not impaired. A salutary norm is that he reflect on the probability that a losing party might nurture at the back of his mind the thought that the judge had unmeritoriously, tilted the scales of Justice against him. That passion on the part of a judge may he generated because of serious charges of misconduct against him by a suitor or his counsel. is not altogether remote. He is a man, subject to the frailties of othe men. He should, therefore, r exercise great care and caution before making up his mind to act or withdraw from a suit where that party or counsel is involved. He could in good grace inhibit himself where that case could be heard by another judge and where no appreciable prejudice would be occasioned to others involved thereon. On the result of his decisions to sit or not to sit may depend to a great extent that all important confidence in the impartiality of the judiciary. If after reflection he should reso lve to voluntarily desist from sitting in a case where his motives or fairness might be seriously impugned, his action is to be interpreted as giving meaning and substance to the second paragraph of Section 1, Rule 137. He serves the cause of the law who forestalls miscarriage of justice. (Pimentel v. Salanga [21 SCRA 160])

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DISQUALIFICATION OF JUDGES

LEGAL ETHICS & PRACTICAL EXERCISES 2005 CENTRALIZED BAR OPERATIONS


Atty. Calanog appears to be sincerely repentant. He describes the effect of the decision in this case as a healing surgery for him. Atty. Calanog is a relatively young man of 54. If his contributions during the four years that he was an RTC Judge were any measure of his potentiality for public service, he has productive years still ahead of him which should not be foreclosed. The penalty of disqualification from appointment to any public office should be lifted so that the opportunity for public service in other fields may be opened to him. His return to the judiciary may not be feasible at this time considering the recency of our decision, but certainly in the vast field of public service there should be room for the gainful employment of his talents. Indeed in the past this Court showed compassion in imposing penalties, taking into account the peculiar circumstances of the case. (Emma Castillo vs. Judge Manuel M. Calanog, Jr. [239 SCRA 268. December 16, 1994])

2004 BAR EXAM QUESTIONS & ANSWERS


PRACTICE OF LAW
QUALIFICATIONS Question 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 that Vic Pugote be disallowed from taking the oath as a member of the Philippine Bar because he was maintaining illicit sexual relations 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 Adorables complaint formally, Pugote moved for its dismissal on the ground that it is already moot and academic. Should Miss Adorables complaint be dismissed or not? Explain briefly. Answer The complaint of Miss Adorable should not be dismissed. In the case of Tapucar v. Tapucar the Supreme Court ruled that good moral character is not only a condition precedent for admission to the legal profession, but it must also remain intact in order to maintain ones good standing in that exclusive and honored fraternity. The grounds for disbarment or suspension of a lawyer consist of those acts of misconduct committed before and after his admissio to practice. The acts of n misconduct prior to admission include those which indicate that at the time the lawyer took his oath he did not possess the required qualifications for membership in the bar, such as good moral character, citizenship, completion of the educational requirements and passing the bar examinations. Anything which shows that he has none of any of these qualifications will justify cancellation of his license. Thus, the taking of the oath as a member of the Philippine Bar neither warrants the dismissal of the complaint against Vic Pugote nor does it render said complaint moot and academic. Alternative Answer Atty. Malibus 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 o ffice 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

RED NOTES IN LEGAL ETHICS


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prescription. The ordinary statute of limitations has no application to disbarment proceedings. (Calo vs. Degamo, 20 SCRA 1162 [1967]).

RIGHTS OF THE ACCUSED Question Upon opening 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 his 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 violative of their clients constitutional right to a public trial. In issuing the questioned order, did the Judge act in violation of the rights of the accused to a public trial? Discuss briefly. Did the Judge act in derogation of 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 proceedings? Reason briefly.

Answer: A. No, the Judge did not act in violation of the rights of the accused to a public trial. The right assured under the Constitution covers the right of the defendant to be given a opportunity to n be heard and that judgment be rendered upon lawful hearing. The judge has the right to order the exclusion of the reporters from the courtroom since under Rule 3.03 of the Code of Judicial Conduct, A judge shall maintain order and proper decorum in the court. 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 [1973]). There is to be no ban on attendance. In the question given, the judge did not bar attendance, only the use of television paraphernalia and video cams. B. No. Press freedom is not violated when the judge directed the exclusion of the television paraphernalia from the courtroom since Rule 1.03 of the Code of Judicia Conduct provides that A l judge should be vigilant against any attempt to subvert the independence of the judiciary and resist any pressure from whatever source. The judge may lawfully do so since he merely protecting the Court by proscribing public comments on pending litigations which is not allowed if such would impede obstruct, embarrass or influence the courts in administering justice in a pending suit or proceeding. The serious risks posed to the fair administration of justice by live TV and radio broadcast, especially when emotions are running high on the 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 the TV reporters in this case. ( Sec.Perez vs. Estrada, 365 SCRA 62, [2001]).

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CODE OF PROFESSIONAL RESPONSIBILITY


LAWYERS DUTIES Question: Under the Code of Professional Responsibility, what is the principal obligation o a f lawyer towards: 1. 2. 3. 4. The legal profession and the Integrated Bar? His professional colleagues? The development of the legal system? The administration of justice?

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5. His client? Answer: 1. The principal obligations of a lawyer to the legal profession and the Integrated Bar are: a. uphold the integrity of the Legal Profession b. observe candor, fairness, and truthfulness in relating with other colleagues c. prevent unauthorized practice of law d. avoid solicitation and advertising e. pay membership fees in the Integrated Bar of the Philippines 2. The principal obligations of a lawyer to his professional colleagues are: c. observe candor, fairness, and truthfulness in relating with other colleagues d. use temperate language in professional dealings with other lawyers e. avoid encroachment upon the business of another lawyer 3. The principal obligations of a lawyer to the development of the legal system are: a. Participate in the development of the legal system b. Initiate or support efforts in law reform and in improvement of the administration of justice c. Keep abreast of legal developments d. Participate in continuing legal education programs e. Support efforts to achieve high standards in law schools f. assist in disseminating information regarding law and jurisprudence 4. The principal obligations of a lawyer to the administration of justice are: a. come to the court adequately prepared b. avoid filing multiple actions and forum shopping c. disclose pending case d. temper client's propensity to litigate e. file pleading within the reglementary period f. duty not to delay or impede execution of judgment g. duty not to talk to a witness during recess h. duty not to assist a witness to misrepresent i. duty not to harass a witness 5. The principal obligations of a lawyer to his client are: a. ascertain possible conflict of interest b. preserve the secrets of a prospective client c. duty not to decline unpopular clients d. duty not to decline appointment by the court or by IBP e. observe the same standard for all clients f. give candid advice on the merits of the case g. comply with clients lawful request h. restrain client from impropriety i. avoid influence-peddling j. employ only honorable means k. rectify client's fraud l. render service only when qualified to do so m. not to handle a case without adequate preparation n. keep client fully informed o. not to borrow from, nor lend money to, client p. account for client's funds q. not to commingle client's funds r. deliver client's funds subject to his lien s. not to purchase client's property in litigation t. preserve client's confidence

RED NOTES IN LEGAL ETHICS

COLLABORATING COUNSEL Question: In the course of a judicial proceeding, a conflict of opinions as to a 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.

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How should such problem be resolved, and whose opinion should prevail? What can AB, the lawyer whose opinion was not followed, do when she honestly believes that the opinion of CD, the other counsel, is not as legally and factually well grounded as her opinion is? Explain briefly. Answer: The opinion of the client should prevail as to what course of action should be taken. In case the opinion of lawyer AB was not followed, AB may ask the client to relieve him, Canon 7 of the Canons of Professional Ethics provides that "When lawyers jointly associated in a cause cannot agree as to any matter vital to the interest of the client, which the client should resolve, the lawyer whose judgment has been overruled should, if the nature of the conflict makes it impracticable for him to cooperate effectively, ask the client to relieve him."
WITHDRAWAL FROM CASE

Question On the eve of the initial hearing for the reception of evidence for the defense, the defendant and his counsel had a conference where the client directed the lawyer to present as principal defense witnesses two persons whose testimonies were personally known to the lawyer to have been perjured. The lawyer informed his client that he refused to go along 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 attorneys 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 the defendant. Both the defendant and the plaintiffs counsel objected to the motion. A. Under the given facts, is the defense lawyer legally justified in seeking withdrawal from the case? Why or why not? Reason briefly. B. Was the motion for relief as counsel made by the defense lawyer in full accord with the procedural requirements for a lawyers withdrawal form a court case? Explain briefly. Answer: A. Yes, the defense lawyer is legally justified in seeking withdrawal from the case because Rule 22.01 of the Code of Professional Responsibility provides that a lawyer may withdraw from a case even without the consent of the client when the client pursues an illegal or immoral course of conduct in connection with the matters he is handling, or when the client insists that the lawyer pursue conduct violative of the canons and rules. Rule 15.07 provides that a lawyer shall impress upon his client compliance with the laws and the principles of fairness. While he owes his client warm zeal, it should always be within the bounds of the law (Canon 19, Code of Professional Responsibility). B. No, Canon 4 of the Canons of Professional Ethics requires a lawyer to serve a copy of his petition upon his client and the adverse party at least three days before the date set for hearing, otherwise the court may treat the application as a mere scratch of paper. 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. Whether or not a lawyer has a valid cause to withdraw from a case, he cannot just do so and leave the client in the cold unprotected.

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Question Atty. DDs services were engaged by Mr. BB as defense counsel in a lawsuit. In the course of the proceedings, Atty. DD discovered that Mr. BB was an agnostic and a homosexual. By reason thereof, Atty. DD filed a motion to withdraw as counsel without Mr. BBs express consent. Is Atty. DDs motion legally tenable? Reason briefly. Answer No, Atty. DDs contention is not legally tenable. Canon 22 of the Code of Professional Responsibility and Canon 44 of the Canons of Professional Ethics provides that a lawyer or counsel shall withdraw his services only for good cause. Furthermore, Rule 22.01, Canon 22 of the Code of Professional Responsibility enumerates the instances when a lawyer may withdr his services. In aw

LEGAL ETHICS & PRACTICAL EXERCISES 2005 CENTRALIZED BAR OPERATIONS


the case at bar the reason of Atty. DD that Mr. BB was an agnostic and a homosexual cannot be considered as a good cause because it is not included in those mentioned in Rule 22.01, Canon 22 of the Code of Professional Responsibility. Furthermore, Section 26, Rule 138 of the Revised Rules of Court enunciates that written consent of the client must be obtained first before an attorney can withdraw from the case in certain cases. Accordingly, Atty. DDs right to retire from the case befo its final adjudication re arises only from the clients written consent and for a good causes.

COUNSEL DE OFICIO Question Primo. Segundo and Tercero are co-accused in an information charging them with the crime of homicide. They are respectively represented by Attys. 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 alibi as their defense. Atty. Tres made it known that accused Tercero denies involvement and would testify that Primo and Segundo actually perpetrated the commission of the offense charged in the information. In one hearing during the presentation of the prosecutions 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 counsels absence, Primo gave his consent provided Attys. Dos and Tres would be designated as his joint counsel de oficio for that particular hearing. Thereupon, the court directed Attys. Dos and Tres to act as counsel de oficio of accused Primo only for purposes of the scheduled hearing. Atty. Dos accepted his designation, but Atty. Tres refused. A. Is there any impediment to Atty. Dos acting as counsel de oficio for accused Primo? Reason. B. May Atty. Tres legally refuse his designation as counsel de oficio of accused Primo? Reason. Answer: A. Atty. Dos may act as counsel de oficio for accused Primo since both Primo and Segundo are invoking alibi as their defense. In criminal cases, it is the duty of a lawyer to undertake the defense of a person accused of a crime due to the Constitutional presumption of innocence and that the accuseds guilt must be proven beyond reasonable doubt. B. Atty. Tres may validly refuse his designation as counsel de oficio of the accused Primo since there is a conflict of interest between Primo and his client. There is already an attorney -client relationship that is existing between Atty. Tres and Tercero and accepting the appointment as de oficio would adversely affect the interest of his client. There is conflicting interest if there is inconsistency in the interests of two or more opposing parties. The test is whether or notin behalf of one client, it is the lawyers duty to fight for an issue or claim but it is his duty to oppose it for the other client. Atty. Tres may not then be expected to fulfill his duty to render effective service and exert his best effort on behalf of the accused.

RED NOTES IN LEGAL ETHICS

CODE OF JUDICIAL CONDUCT


JUDGE, PRACTICE OF LAW Ti Question Assume that your friend and colleague, Judge Peter X. Mahinay, a Regional Trial Court judge 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 his wife in the trial of a civil case for damages pending before the Regional Trial Court of Aparri, Cagayan. What would be your advice to him? Discuss briefly. Answer As a friend and colleague of Judge Peter X. Mahinay, I would advise him not to represent his wife as counsel but instead seek the services of another counsel. Under Rule 138, Section 35 of the

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Revised Rules of Court, judges are prohibited from engaging in the private practice of law or giving professional advice to clients. This is reiterated in Rule 5.07 of the Code of Judicial Conduct, thus, A judge shall not engage in the private practice of law. Unless prohibited by the Constitution or law, a judge may engage in the practice of any other profession provided that such practice will not conflict or tend to conflict with his judicial functions. In Gragera vs. Francisco, A.M. No. RTJ-02-1670, June 26, 2003, 405 SCRA 17, The proscription against the private practice of law, or just giving professional advice to clients, by Judges is based on public policy. The prohibition applies equally well to the appointment of and acceptance by judges to the post of attorney-in-fact in actual litigations, a fact which also, by and large, incompatible with the high office, functions, prestige and privileges of a judge. It is of no moment, albeit worse, that the case where he accepts such designation as attorney -in-fact is one that pends before his own court. The mere perception that the judge might or could unduly influence the conduct, as well as the outcome of the case, can und ermine, or compromise in the eyes of the public at the very least, the integrity and independence of the court. Thus, it is often said, a judge should avoid not only an actual impropriety but also even the appearance of impropriety.

UNJUST JUDGMENT Question: Atty. Jarazo filed a civil suit for damages against his business associates. After due trial, Judge Dejado rendered judgment dismissing Atty. Jarazos complaint. Atty. Jarazo did not appeal from the decision rendered by Judge Dejado, thereby rendering the judgment final and executory. Thereafter, Atty. Jarazo lodged a criminal complaint accusing Judge Dejado of rendering a manifestly unjust judgment before the Office of the Ombudsman. Will Atty. Jarazos complaint against Judge Dejado prosper? Why or why not? Reason. Answer: Atty. Jarazos complaint against Judge Dejado for rendering a manifestly unjust judgment before the Office of the Ombudsman will not prosper. In Heirs of the Late Justice Jose B.L. Reyes vs. Demetria, A.M. No. CA-01-21, January 23, 2002, 374 SCRA 206, In order to discipline a judge, it must be clearly shown that the judgment or order is unjust as being contrary to law and that the judge rendered it with conscious and deliberate intent to do an injustice. Judges cannot be subjected to liabilitycivil, criminal or administrativefor any of their official acts, no matter how erroneous, so long as they act in good faith. It is only when they act fraudulently or corruptly, or with gross ignorance may they be held criminally or administratively responsible. An erroneous decision or order is presumed to have been issued in good faith in the absence of proof to the contrary. Thus, absence of any cavil that the judgment is unjust as being contrary to law or is not supported by evidence, and that the judge rendered it with conscious and deliberate intent to do an injustice, the criminal complaint against Judge Dejado will not prosper.

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PARTIALITY Question: Judge Aficionado was among the several thousands of spectators watching a baske tball 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 the stabbing of Maykilling was raffled to the Regional Trial Court Branch presided over by Judge Aficionado. Should Judge Aficionado sit in judgment over and try the case against Baracco? Explain. Answer:

LEGAL ETHICS & PRACTICAL EXERCISES 2005 CENTRALIZED BAR OPERATIONS


Judge Aficionado should not sit in judgment over the case. Rule 3.12 of the Code of Judicial Conduct provides the instances in which a judge should take no part in a proceeding where the judges impartiality might reasonably be questioned. These cases include, among others, proceedings where: (a) the judge has personal knowledge of disputed evidentiary facts concerning the proceeding The rule on disqualification of a judge, whether compulsory or voluntary, to hear a case finds its rationale in the salutary principle that no judge should preside in a cause in which he is not wholly free, disinterested, impartial and independent, which is aimed at preserving the peoples faith and confidence in the courts of justice. The judge may, however, instead of withdrawing from the proceeding, disclose on the record the basis of disqualification. If based on such disclosure, the parties and lawyers independently of the judge participation, all agree in writing that the reason for the inhibition is immaterial or insubstantial, the judge may then participate in the proceeding. (Rule 3.13 of the Code of Judicial Canon) This is known as remittal of disqualification.

DISBARMENT
DELAY IN FILING A COMPLAINT Question: Alleging that Atty. Malibu seduced her when she was only sixteen years old, which resulted in her pregnancy and the birth if 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, the complaint filed against him can no longer be entertained much less prosecuted because the alleged offense has already prescribed. Is Atty. Malibus contention tenable or not? Reason briefly. Answer: No, Atty. Malibus contention is bereft of any merit. In Macarrubo vs. Atty. Macarrubo [A.C. No. 6148. February 27, 2004], As officers of the court, lawyers must not on in fact be of good ly moral character but must also be perceived to be of good moral character and must lead a life in accordance with the highest moral standards of the community. The moral delinquency that affects the fitness of a member of the bar to continue as such, including that which makes a mockery of the inviolable social institution of marriage, outrages the generally accepted moral standards of the community. In sum, respondent has breached the following precepts of the Code of Professional Responsibility: Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. CANON 7 A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the activities of the Integrated Bar. Rule 7.03 A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.

RED NOTES IN LEGAL ETHICS

DISBARMENT PROCEDURE Question: 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 o pen court and proceeded to receive evidence for the complainant. What would you have done if you were the counsel for the respondent-lawyer? Why? Reason briefly. Answer: As the counsel for the respondent lawyer, I shall ask that the complaint be dismissed since the procedure provided under the Rules of Court was not followed. It is provided in Rule 139 of -B the Revised Rules of Court that if the Court deems it necessary that further inquiry should be made in connection with a disbarment case, such as when the matter could not be resolved by merely

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LEGAL ETHICS & PRACTICAL EXERCISES
evaluating the pleadings submitted, a referral is made to the Solicitor General, any officer of the SC, or any judge of a lower court for a formal investigation of the case during which it is only the respondent who is given the right to fully defend himself, to present witnesses on his behalf and be heard by himself and counsel. The complainant in such cases does not have the right to present evidence.

MORAL TURPITUDE Question: Atty. Walasunto has been a member of the Philippine Bar for twenty years but has never practiced his profession as a lawyer. His sole means of livelihood is selling and buying real estate. In one of his transactions as a real estate broker, he issued a bouncing check. He was criminally prosecuted and subsequently convicted for violating B.P. Blg. 22. In the disbarment proceedings filed against him, Atty. Walasunto contended that his conviction for violation of B.P. Blg. 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 relation to his calling as a real estate broker and not in relation to the exercise of the profession of a lawyer. Are the contentions of Atty. Walasunto meritorious or not? Reason. Answer: NO, the contentions of Atty. Walasunto are not meritorious. Under Section 27, Rule 138 of the Revised Rules of Court, a lawyer may be disbarred or suspended from his office as attorney by the Supreme Court by reason of his conviction of a crime i volving moral turpitude. The term n moral turpitude means anything which is done contrary to justice, honesty, modesty or good morals, or to any act of vileness, baseness or depravity in the private and social duties that a man owes his fellowmen or to society, contrary to the accepted rule of right and duty between man and man. (In re Gutierrez, GR Adm. Code No. 363, July 31, 1962). In Sanchez vs. Somoso, A.C. No. 6061, October 3, 2003, 412 SCRA 569, the Supreme Court said x x x Clearly Respondents action of issuing his personal checks in payment for his medical bills, knowing fully well that his account with the drawee bank has by then already been closed, constituted a gross violation of the basic norm of integrity required of all members of the lega l profession. The Code of Professional Responsibility specifically mandates that: Canon 1A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal processes. Rule 1.01.A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. Canon 7.A lawyer shall at all times uphold the integrity and dignity of the legal profession and support the activities of the integrated bar. Rule 7.03A lawyer shall not engage in conduct that adverse reflects on his ly fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. The canons emphasize the high standard of honesty and fairness expected of a lawyer not only in the practice of the legal profession but also in his personal dealings as well. A lawyer must conduct himself with great propriety, and his behavior should be beyond reproach anywhere and at all times. Hence, any gross misconduct on the part of a lawyer, though not related to his professional duties as member of the bar, which puts his moral character in serious doubt, may render him unfit to continue in the practice of law. Likewise, by his conviction, the lawyer himself has shown that he is unfit to protect the administration of justice or that he is no longer of good moral character, either of which justifies his suspension or disbarment.

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LEGAL ETHICS & PRACTICAL EXERCISES 2005 CENTRALIZED BAR OPERATIONS

PROCEDURE FOR DISBARMENT OR DISCIPLINE OF ATTORNEYS BY THE SUPREME COURT, MOTU PROPIO (RULE 139-B)

Supreme Court shall refer the case to an investigator, who may either be: 1. Solicitor General, 2. Any officer of the SC, or 3. Any judge of a lower court

Respondent Notified

RESPONDENTS VERIFIED ANSWER (Must be filed within 15 days from service)

RED NOTES IN LEGAL ETHICS

INVESTIGATION
(terminate within 3 months)

REPORT TO SUPREME COURT (to be submitted not later than 30 days from investigations termination) REPORT MUST CONTAIN THE INVESTIGATORS: 1. Findings of fact 2. Recommendations

SUPREME COURT FOR REVIEW / JUDGMENT

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IBP Motu Propio (Committee on Bar Discipline through National Grievance Investigator)

VERIFIED COMPLAINT TO THE IBP BY ANY PERSON Complaint must be: 1. In writing 2. State facts complained of 3. Supported by affidavits / documents

Shall appoint an investigator / panel of investigators and notify respondent

RECOMMEND DISMISSAL IF NOT MERITORIUS

IF MERITORIOUS, RESPONDENTS VERIFIED ANSWER (Must be filed within 15 days from service)

PROCEDURE
DISMISSAL BY BOARD OF GOVERNORS

FOR
INVESTIGATION (terminate within 3 months) 1. Investigator may issue subpoenas 2. Provide respondent with opportunity to be heard. 3. May proceed with investigation ex parte should respondent fail to appear

DISBARMENT OR DISCIPLINE OF ATTORNEYS BY THE IBP

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BOARD OF GOVERNORS FOR REVIEW (issues a

REPORT TO BOARD OF GOVERNORS (Submitted not later than 30 days from termination of investigation) containing: y Findings of facts y Recommendations y Disbar y Suspend y Dismiss

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ISSUE DECISION IF: y Exonerated y Sanction is less than suspension / disbarment

SUPREME COURT FOR JUDGMENT