Ethics Quamto

QUESTIONS ASKED MORE THAN ONCE IN THE

BAR

QuAMTO (1990-2007)

Legal and Judicial Ethics

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CADEMICS

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LIJON

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HARMAGNE

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INAY

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OBLES

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LARABEL

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AFAEL

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ANTOS

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STELEYDES

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AMYKA

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AULINE

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REISSEE

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AYLE

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LCARAZ

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OBBIE

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AÑAGA

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ONICA

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AJUCOM

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OMINIC

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ICTOR

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LBAN

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NNABELLA

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HARMAINE

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LEGAL ETHICS

THE LAWYER AND SOCIETY

Q: During the course of his cross-examination, your client had testified to events and circumstances which you personally know to be untrue. If his testimony was given credence and accepted as fact by the court, you are sure to win your client’s case. Under the Code of Professional Responsibility, what is your obligation to the public (1994)?

A: A lawyer shall not engage in lawful, dishonest,

immoral or deceitful conduct (Rule 1.01, Canon 1,

Code of Professional Responsibility). A lawyer shall

not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system (Rule 1.02, Canon 1).

Q: Atty. BB borrowed P30,000.00 from EG to be paid in six months. Despite reminders from EG, Atty. BB failed to pay the loan on its due date. Instead of suing in court, EG lodged with an IBP chapter a complaint for failure to pay a just debt against Atty. BB. The chapter secretary endorsed the matter to the Commission on Bar Discipline (CBD). A commissioner of the CBD issued an order directing Atty. BB to answer the complaint against him but the latter ignored the order. Another order was issued for the parties to appear before the Commissioner at a certain date and time but only EG showed up. A third order submitting the case for resolution was likewise ignored by Atty. BB. Was Atty. BB justified in ignoring the orders of the Commission on the ground that the Commission had no power to discipline him for acts done in his private capacity? Why? (2002)

A: Atty. BB is not justified in ignoring the orders of

the Commission on Bar Discipline. In doing so, he violated his oath of office for disobeying orders of a duly constituted authority. A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.

(Rule 1.02; Panganiban v. Borromeo, 58 Phil. 367) Q: Atty. Asilo, a lawyer and a notary public, notarized a document already prepared by spouses Roger and Luisa when they approached him. It is stated in the document that Roger and Luisa formally agreed to live separately from each other and either one can have a live-in partner with full consent of the other. What is the liability of Atty. Asilo, if any? (1998, 1992)

A: Atty. Asilo may be held administratively liable for

violating Rule 1.02 of the Code of Professional Responsibility – a lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. An agreement between two spouses to live separately from each other and either one could have a live-in partner

with full consent of the other, is contrary to law and morals. The ratification by a notary public who is a lawyer of such illegal or immoral contract or document constitutes malpractice or gross misconduct in office. He should at least refrain from its consummation (In re Santiago, 70 Phil. 661;

Panganiban v. Borromeo, 58 Phil. 367, In re Bucana, 72 SCRA 14).

Q: A client refuses to pay Atty. A his contracted attorney’s fees on the ground that counsel did not wish to intervene in the process of effecting a fair settlement of the case. Decide. (2001)

A: Rule 1.04 of the Code of Professional

Responsibility provides that “a lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement”. If a lawyer should refuse to intervene in a settlement proceeding, his entitlement to his attorney’s fees may be affected. However, if he has already rendered some valuable services to the client, he must be paid his attorney’s fees on the basis of

quantum meruit, even if it is assumed that he is

dismissed.

Q: Distinguish “Ambulance Chasing” from “Barratry” (1993)

A: Ambulance chasing is any act of improper

solicitation of cases such as fomenting litigation or instigating unnecessary lawsuits. It is the practice of lawyers in frequenting hospitals and homes of the injured in order to convince them to go to court. Barratry is an offense of exciting or stirring up suits and quarrels. Both are improper and unethical acts of a lawyer. Ambulance chasing refers more to a lawyer who instigates a victim in a motor vehicle accident to file a case. Barratry is any form of fomenting suit.

Q: A businessman is looking for a new retainer. He approached you and asked for your schedule of charges. He informed you the professional fees he is presently paying his retainer, which is actually lower than your rates. He said that if your rates are lower, he would engage your services. Will you lower your rates in order to get the client? Explain. (2006)

A: No, I would not. Rule 2.04 of the Code of

Professional Responsibility provides that “a lawyer shall not charge rates lower than those customarily prescribed unless circumstances so warrant.” This is aimed against the practice of “cutthroat competition” which is not in keeping with the principle that the practice of law is a noble profession and not a trade. Moreover, if he agrees, he would be encroaching on the employment of a fellow lawyer, which is prohibited by Rule 8.02 of the Code.

Q: You are the managing partner of a law firm. A new foreign airline company, recently granted rights by the Civil Aeronautics Board at the NAIA, is scouting for a law firm which could handle its cases in the Philippines and provide legal services to the company and its personnel. After discussing with you the extent of the legal services your law firm is prepared to render, the general manager gives you a letter-proposal from another law firm in which its time-billing rates and professional fees for various legal services are indicated. You are asked to submit a similar letter-proposal stating your firm’s proposed fees. The airline company’s general manager also tells you that, if your proposed fees would at least be 25 percent lower than those proposed by the other firm, you will get the company’s legal business. How would you react to the suggestion? (1997)

A: I will emphasize to the General Manager that the

practice of law is a profession and not a trade. Consequently, I will not propose a lower fee just for the sake of competing with another firm, because such practice smacks of commercialism. Moreover, Rule 2.04 of the Code of Professional Responsibility provides that a lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant. I will charge fees that will be reasonable under the circumstances.

Q: 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 suspicions. 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? (1998)

A: Yes. Atty. Nilo is guilty of gross negligence in

protecting the interests of his client. A lawyer should not neglect a legal matter entrusted to him liable, (Rule 3.01 Code of Professional Responsibility). Worse, he was negligent because he placed his own interest in receiving a high notarial fee over and above the interest of his client. In the case of

Nadayag v. Grageda, 237 SCRA 202, which involves

similar facts, the Supreme Court held that 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 a vowed duties of a worthy member of the Bar.”

Q: Prosecutor Coronel entered his appearance on behalf of the State before a Family Court in a case for declaration of nullity of marriage, but he failed to appear in all the subsequent proceedings. When required by the Department of Justice to explain, he argued that the parties in the case were ably represented by their respective counsels and that his time would be better employed in more substantial prosecutorial functions, such as investigations, inquests and appearances in court hearings. Is Atty. Coronel’s explanation tenable? (2006)

A: Atty. Coronel’s explanation is not tenable the role

of the State’s lawyer in nullification of marriage cases is that of protector of the institute of marriage (Art 48, Family Code). “The task of protecting marriage as an inviolable social institute requires vigilant and zealous participation and not mere pro forma compliance” (Malcampo-Sin v. Sin, 355 SCRA

285 [2001]). This role could not be left to the private

counsels who have been engaged to protect the private interest of the parties.

Q: Atty. E has a daily 10-minute radio program billed as a “Court of Common Troubles.” The program is advertised by the radio station as a public service feature for those who seek but cannot afford to pay for legal advice. Its sponsors include a food processing company and a detergent manufacturing firm which share with the radio station the monthly remuneration of Atty. E. Is there any impropriety in Atty. E’s role under the above arrangement? (1997)

A: Giving advice on legal matters through the

medium of a newspaper column or radio or television broadcast is improper. It would involve indirect advertising and violation of the confidential relation between lawyer and client (Agpalo, Legal

Ethics, 1992 ed. P. 82).

Q: Atty. Thess Tuazon writes a regular column in a newspaper of general circulation, as well as legal articles in a leading magazine. Her by-line always includes the name of her law firm where she is a name partner. Would you consider this as improper advertising? Explain. (1993)

A: I would consider putting the by-line under the

name of her law firm improper. It is an indirect way of advertising her law firm. Naming her law firm achieves no other purpose than to inform the public and possible clientele of the existence of her law firm and of her being actively engaged in the practice of law.

Q: Determine whether the following advertisements by an attorney are ethical or unethical. Write “Ethical” or “Unethical”, as the case may be, opposite each letter and explain.

1.

A calling card, 2x2 in size, bearing his name in bold print, office, residence and e-mail address, telephone and facsimile numbers.

2.

A business card, 3’’x4’’ in size, indicating the aforementioned data with his photo, 1’’x1’’ in size. (2002)

A:

1.

Ethical – A lawyer, in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts

(Canon 3, Code of Professional Responsibility)

2.

Unethical – The size of the card and the inclusion of the lawyer’s photo in it smacks of commercialism.

Q: A Justice of the Supreme Court, while reading a newspaper one weekend, saw the following advertisement.

The following session day, the Justice called the attention of his colleagues and the Bar Confidant was directed to verify the advertisement. It turned out that the number belongs to Attorney X, who was then directed to explain to the court why he should not be disciplinarily dealt with for the improper advertisement. Attorney X, in his answer, averred that (1) the advertisement was not improper because his name was not mentioned in the ad; and (2) he could not be subjected to disciplinary action because there was no complaint against him. Rule on Attorney X’s contention. (2003, 1998)

A:

1. The advertisement is improper because it is a solicitation of legal business and is tantamount to self-praise by claiming to be a “competent lawyer”. The fact that his name is not mentioned does not make the advertisement proper. His identity can be easily determined by calling the telephone number stated. In the case of Ulep v. Legal Clinic, Inc., 223

SCRA 378 (1993), the Supreme Court found a similar

advertisement to be improper is spite of the fact that the name of a lawyer was also not mentioned. 2. A complaint is not necessary to initiate disciplinary action against a lawyer. In Section 1, Rule 139-B of the Rules of Court, disciplinary action against a lawyer may be initiated by the Supreme Court motu

proprio.

Q: Determine whether the following advertisement by an attorney is ethical or unethical. Write “Ethical” or “Unethical”, as the case may be, opposite each letter and explain.

A small announcement in BALITA, a tabloid in Filipino that the attorney is giving free legal advice for (the indigent within the month of) September 2002. (2002)

A: Unethical – The announcement in a newspaper

that he will give free legal advice to the indigent is a form of self-praise. [In re: Tagorda, 53 Phil. 37

(1929)]

Q: Facing disciplinary charges for advertising as a lawyer, Atty. A argues that although the calling card of his businessman friend indicates his law office and his legal specialty, the law office is located in his friend’s store. Decide. (2001)

A: This appears to be a circumvention of the

prohibition on improper advertising. There is no valid reason why the lawyer’s businessman friend should be handling out calling cards which contains the lawyer’s law office and legal specialty, even if his office is located in his friend’s store. What makes it more objectionable is the statement of his supposed legal specialty.

Q: A lone law practitioner Bartolome D. Carton, who inherited the law office from his deceased father Antonio C. Carton, carries these names: “Carton & Carton Law Office.” Is that permissible or objectionable? Explain. (2001, 1996, 1994)

A: Rule 3.02 of the Code of Professional

Responsibility provides as follows: “In the choice of a firm name, no false, misleading or assumed name shall be used; the continued use of the name of deceased partner is permissible provided that the firm indicates in all its communications that the partner is deceased.”

Since Atty. Antonio C. Carton is a solo

practitioner, it is improper for him to use the firm

name “Carton & Carton Law Office”, which indicates that he is and/or was in partnership with his father. Even if he indicates in all his communication that his father is already dead, the use of the firm name is still misleading because his father was never his partner before.

Q: Determine whether the following advertisements by an attorney are ethical or unethical. Write “Ethical” or “Unethical”, as the case may be, opposite each letter and explain.

A.

xxx

B.

xxx

C.

A pictorial press release in a broadsheet newspaper made by the attorney showing him being congratulated by the president of a client

ANNULMENT OF MARRIAGE

Competent Lawyer

Reasonable Fee

Call 221-2221

Mondays to Fridays

8:00 a.m. to 5:00 p.m.

corporation for winning a multi-million damage suit against the company in the Supreme Court.

D.

The same Press release made by his client in a tabloid. (2002)

A:

C. Unethical – A lawyer should not resort to indirect advertisements such as procuring his photograph to be published in a newspaper in connection with a case he is handling. He should not pay or give something of value to representatives of mass media in anticipation of, or return for, publicity to attract legal business (Rule 3.04, Code of Professional

responsibility)

D. Ethical – The lawyer can no longer be held responsible for the action of his client. However, it would be unethical if he knew about his client’s intention to publish and still did nothing to stop it.

Q: Upon learning from newspaper reports that the 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 Adorable’s complaint formally, Pugote moved for its dismissal on the ground that it is already moot and academic. Should Miss Adorable’s complaint be dismissed or not? (2004)

A: It should not be dismissed. Her charge involves a

matter of good moral character which is not only a requisite for admission to the Bar, but also a continuing condition for remaining a member of the Bar. As such, the admission of Vic Pugote to the Bar does not render the question moot and academic.

Q: Under the Code of Professional Responsibility what is the principal obligation of a lawyer towards the development of the legal system? (2004) A: A lawyer shall participate in the improvement of

the legal system by initiating or supporting efforts in law reform and in the administration of justice (Canon 4, Code of Professional Responsibility). He shall keep abreast of legal developments; participate in continuing legal education programs, support efforts to achieve high standards in law school as well as in the practical training of law students and assist in disseminating information regarding the law and jurisprudence. (Canon 5, Code of Professional

Responsibility)

Q: D was charged with estafa by C before the barangay for misappropriating the proceeds of sale of jewelry on commission. In (the) settlement of

the case, D turned over to the barangay captain, a lawyer, the amount of P2,000.00 with the request that the barangay captain turn over the money to C. Several months passed without C being advised of the status of her complaint. C contacted D who informed her that she (D) had long before turned over the amount of P2,000.00 to the barangay captain who undertook to give the money to her (C). C thus filed a case against the barangay captain who at once remitted the amount of P2,000.00 to C. May the barangay captain be faulted administratively? Explain. (2000, 1992)

A: Yes. The Code of Professional Responsibility

applies to lawyers who are in the government service. As a general rule, a lawyer who holds a government office may not be disciplined as a member of the bar for misconduct in the discharge of his office as a government official. However, if that misconduct as a government official is of such character as to affect his qualification as a lawyer or to show moral delinquency, then he may be disciplined as a member of the bar on such ground. (Dinsay v. Cioco, 264 SCRA 703 [1996]). In the case of

Penticostes v. Ibanez, 304 SCRA 281 (1999), a

barangay captain who failed to remit for several months the amount given to him for payment of an obligation, was found to have violated the Code of Professional Conduct.

Q: From the viewpoint of legal ethics, why should it be mandatory that the public prosecutor be present at the trial of a criminal case despite the presence of a private prosecutor? (2001, 1992)

A: The public prosecutor must be present at the trial

of the criminal case despite the presence of a private prosecutor in order to see to it that the interest of the State is well-guarded and protected, should the private prosecutor be found lacking in competence in prosecuting the case. Moreover, the primary duty of a public prosecutor is not to convict but to see to it that justice is done (Rule 6.01, Code of Professional

Responsibility). A private prosecutor would be

naturally interested only in the conviction of the accused.

Q: Atty. Herminio de Pano is a former prosecutor of the City of Manila who established his own law office after taking advantage of the Early Retirement Law. He was approached by Estrella Cabigao to act as private prosecutor in an estafa case in which she is the complainant. It appears that said estafa case was investigated by Atty. de Pano when he was still a prosecutor. Should Atty. de Pano accept employment as private prosecutor in said estafa case? Explain. (1991)

A: Atty. de Pano should not accept the employment

as private prosecutor as he will be violating Canon 6, Rule 6.03 of the Code of Professional Responsibility which provides that a lawyer shall not, after leaving

government service, accept employment in connection with any matter in which he had intervened while in said service. The restriction against a public official using his public position as a vehicle to promote or advance his tenure in certain matters which (he) intervened as a public official.

LAWYER AND THE LEGAL PROFESSION

Q: Under the Code of Professional Responsibility, what is the principal obligation of a lawyer towards: the legal profession and the Integrated Bar? (2004)

A: A lawyer shall at all times uphold the integrity and

dignity of the legal profession, and support the activities of the integrated bar. (Canon 7, Code of

Professional Responsibility)

Q: Prior to his admission to the freshman year in a reputable law school. Bar examinee A was charged before the Municipal Trial Court with damage to property through reckless imprudence for accidentally sideswiping a parked jeepney. The case was amicably settled with A agreeing to pay the claim of the jeepney owner for P1,000.00. In his application to take the 1997 Bar Examinations, A did not disclose the above incident. Is he qualified to take the Bar Examinations? (1997, 2005)

A: Rule 7.01 of the Code of Professional Responsility

provides that “a lawyer shall be answerable for knowingly making a false statement or suppressing a material fact in connection with his application for admission to the bar” In the case of In Re Ramon

Galang, 66 SCRA 245, the respondent repeatedly

omitted to make mention of the fact that there was a pending criminal case for slight physical injuries against him in all four (4) applications for admission to take the bar examinations. He was found to have fraudulently concealed and withheld such fact from the Supreme Court and committed perjury. The Supreme Court cited the rule that “the concealment of an attorney in his application to take the bar examinations of the fact that he had been charged with, or indicted for, an alleged crime, is a ground for revocation of his license to practice law.”

A’s failure to disclose that he had been charged with damage to property through reckless imprudence in his application for admission to the bar examinations disqualifies him. It does not matter that the offense charged does not involve moral turpitude or has been amicably settled. It is up to the Supreme Court to determine whether the offense charged involved moral turpitude or not. What is important is that he concealed such fact from the Supreme Court or even misrepresented under oath that he had not been charged. This produces an unfavorable impression on his moral character.

Q: Under the Code of Professional Responsibility, what is the principal obligation of a lawyer towards his professional colleagues? (2004)

A: “A lawyer shall conducted himself with courtesy,

fairness and candor towards his professional colleagues, and shall avoid harassing tactics against opposing counsel.” (Canon 8, Code of Professional

Responsibility)

Q: May a lawyer give a proper advice and assistance to a client of another lawyer? Support your answer. (2001)

A: There is nothing wrong with giving proper advice

and assistance to a client of another lawyer, as long as no conflict of interest is involved and he does not encroach, directly or indirectly, on the employment of the said lawyer. However, Rule 8.02 of the Code of Professional Responsibility allows a lawyer, “without fear or favor, to give a proper advice and assistance to those seeking relief against unfaithful and neglectful counsel.”

Q: You are the counsel of K in his action for specific performance against DEV, Inc., a subdivision developer which is presented by Atty. L. Your client believes that the president of DEV, Inc., would be willing to consider an amicable settlement and your client urges to discuss the matter with DEV, Inc., without the presence of Atty. L whom he considered to be an implement to an early comprise. Would it be all right for you to negotiate the terms of the compromise as so suggested above by your client? (1997, 2006)

A: No. Rule 8.02, Canon 8 for the Code of

Professional Responsibility provides that “a lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer.” Canon 9 of the Code 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.” In the case of Likong v. Lim, 135 SCRA 414, a lawyer was suspended for negotiating a compromise agreement directly with the adverse party without the presence and participation of her counsels.

Q: After the pre-trial Atty. Hans Hilado, counsel for plaintiff Jennifer Ng, persuaded defendant Doris Dy to enter into a compromise agreement with the plaintiff without the knowledge and participation of defendant’s counsel, Atty. Jess de Jose. Doris acceded and executed the agreement. Therein Doris admitted her obligation in full and bound herself per annum in ten (10) equal monthly installments. The compromise agreement was approved by the court. Realizing that she was prejudiced, Doris Dy filed an administrative complaint against Atty. Hilado alleging that the

latter prevent her from consulting her lawyer Atty. De Jose when she entered into the compromise agreement, thereby violating the rule of professional conduct, Atty. Hilado countered that Doris Dy freely and voluntary entered into the compromise agreement which in fact was approved bythe court. Did Atty. Hans Hilado commit malpractice and grave misconduct as a lawyer? Explain. (1995)

A: Atty. Hilado committed an act of malpractice.

Rule 8.02 of the Code of Professional Responsibility provides that “a lawyer shall not directly or indirectly encroach upon the professional employment of another lawyer.” Canon 9 of the Code of Professional Ethics that that a lawyer should not in any way communicate upon the subject of a controversy with a party represented by a counsel: much should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. Under similar facts the lawyer concern was suspended for committing acts constituting malpractice and grave misconduct (Likong v. Lim, 235 SCRA 414).

Q: Myrna, petitioner for a case for custody of children against her husband, sought advice from Atty. Mendoza whom she met at a party. She informed Atty. Mendoza that her lawyer, Atty. Khan, has been charging her exorbitant appearance fees when all he does is move for postponement which have unduly delayed the proceedings; and that recently, she learned that Atty. Khan approached her husband asking for huge amount in exchange for the withdrawal of her Motion for Issuance of Hold Departure Order so that he and his children can leave for abroad. What should Atty. Mendoza do about the information relayed to him by Myrna that Atty. Khan approached her husband with an indecent proposal? (2006)

A: Atty. Mendoza can advise her to terminate the

service of Atty. Khan and/or file an administrative case against Atty. Khan. It is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaith or neglectful counsel (Rule 8.02, CPR).

Q: Supposing Tony is a defendant in a civil case for collection of sum of money before the same court, can Atty. Fernandez appear for him to conduct his litigation? (2006)

A: Even if Tony is a defendant in a civil case, Atty.

Fernandez cannot be allowed to appear for him to conduct his litigation; otherwise, the judge will be violating Canon 9 of the Code of Professional Responsibility which provides that “a lawyer shall not, directly or indirectly, assist in the unauthorized practice of law.

Q: You had just taken your oath as a lawyer. The secretary to the president of a big university offered to get you as the official notary public of the school. She explained that a lot of students lose their Identification Cards and are required to secure an affidavit of loss before they can be issued a new one. She claimed that this would be very lucrative for you, as more than 30 students lose their Identification Cards every month. However, the secretary wants you to give her one-half of your earnings there from. Will you agree to the arrangement? Explain. (2005)

A: No, I will not agree. Rule 9.02 of the Code of

Professional Responsibility provides that “a lawyer shall not divide or stipulate to divide a fee for legal service with persons not licensed to practice law “. The secretary is not licensed to practice law and is not entitled to a share of the fees for notarizing affidavits, which is a legal service.

LAWYER AND THE COURTS

Q: During the course of his cross-examination, your client had testified to events and circumstances which you personally know to be untrue. If his testimony was given credence and accepted as fact by the court, you are sure to win your client’s case. Under the Code of Professional Responsibility, what is your obligation to the court? (1994)

A: A lawyer shall do any falsehood, nor consent to

any in court; nor shall he mislead or allow the court to be misled by any artifice (Rule 10.01, Canon 10,

Code of Professional of Responsibility). A lawyer shall

not knowingly assist a witness to misrepresent himself or to impersonate another (Rule 12.06,

Canon 12)

Q: Due to the number of cases handled by Atty. Cesar, he failed to file a notice of change of address with the Court of Appeals. Hence, he was not able to file an appellant’s brief and consequently, the case was dismissed. Aggrieves, Atty. Cesar filed a motion for reconsideration of the resolution dismissing the appeal and to set aside the entry of judgment on the ground that he already indicated in his “Urgent Motion for Extension of Time to File Appeal Brief” his new address and that his failure to file a notice of change of address is an excusable negligence. Will the motion prosper? Explain. (2005)

A: The motion will not prosper. It is the lawyer’s duty

to inform the court or to make of record of his change of address. His failure to do so does not constitute excusable negligence. The lawyer cannot presume that the court will take cognizance of the new address in his motion for extension of time (Philippines Suburban Dev. Corp. Vs. Court of

Q: In a pending labor case, Atty. A filed a Position Paper on behalf of his client, citing a Supreme Court case and quoting a portion of the decision therein which he stated reflected the ratio decidendi. However, what he quoted was not actually the Supreme Court ruling but the argument of one of the parties to the case. May Atty. A be faulted administratively? Explain. (2000)

A: Yes, he may be faulted administratively. A lawyer

owes candor, fairness and good faith to the court. Rule 10.02 of the Code of Professional Conduct expressly provides that a lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not has been proved. To cite an argument of one of the parties as a ratio decidendi of a Supreme Court decision shows, at least, lack of diligence on the part of Atty. A (Commission on

Election v. Noynay, 292 SCRA 254[1998]).

Q: When is public comment and criticism of a court decision permissible and when would it be improper? (1997)

A: A lawyer, like every citizen, enjoys the right to

comment on and criticize the decision of the court. As an officer of the court, a lawyer is expected not only to exercise that right but also to consider it his duty to expose the shortcomings and indiscretion of courts and judges. But such right is subject to the limitation that it shall be bona fide. It is proper to criticize the court and judges, but 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 motive not supported by the record or have no materiality in the case” (Rule 11.04, Code of Professional

Responsibility).

Q: Having lost in the Regional Trial Court and then in the Court of Appeals, Atty. Mercado appealed to the Supreme Court. In a minute resolution, the Supreme Court denied his petition for review for lack of merit. He filed a motion for reconsideration which was also denied. After the judgment had become final and executor, Atty. Mercado publicly criticized the Supreme Court for having rendered what he called an unjust judgment, even as he ridiculed the members of the Court by direct insults and vituperative innuendoes. Asked to explain why he should not be punished for his clearly contemptuous statements, Atty. Mercado sets up the defense that his statements were uttered after the litigation had been finally terminated and that he is entitled to criticize judicial actuations. Is Atty. Mercado’s contention tenable? Explain. (1993)

A: Atty. Mercado’s contention is not tenable. While

he is free to criticize the decision itself, he is not at liberty to call said judgment an unjust judgment and to ridicule the members of the court. It is one thing to analyze and criticize the decision itself, which is proper, and it is another thing to ridicule the members of the court, which is wrong. The right of a lawyer to comment on or criticize decision of a judge or his actualizations is not unlimited. It is the cardinal condition of all such criticism that it shall be

bona fide, and shall not spell over the walls or

decency and propriety. A wide chasm exists between fair criticism, on the one hand, and abuse and slander of courts and judges on the other. A publication in or outside the court tending to impede, obstruct, embarrass or influence the courts in administering justice in a pending suit, or to degrade the courts, destroy public confidence in them or bring them into disrepute, whether or not there is a pending litigation, transcends the limits of fair comment. Such publication or intemperate and unfair criticism is a gross violation of the lawyer’s duty to respect the courts. It is a misconduct that subjects him to disciplinary action.

Q: In a petition for certiorari filed with the Supreme Court, Atty. Dizon alleged that Atty. Padilla, a legal researcher in the Court of Appeals drafted the assailed Decision; that he is ignorant of the applicable laws and that he should be disbarred. Can Atty. Dizon, in castigating Atty. Padilla, be held liable for unethical conduct against the Court of Appeals? (2006)

A: Yes. He can be held liable for lack of respect for

the Court of Appeals. “Decisions are rendered by the courts and not the persons or personnel who may participate therein by virtue of their office. It is highly improper and unethical for counsel to impute the allegations against Atty. Padilla. Counsel for the petitioner should be reminded of the elementary rules of the legal profession regarding respect for the courts by the use of proper language in its pleading and should be admonished for his improper references to the researcher of the CA in his petition. A lawyer should avoid scandalous, offensive or menacing language or behavior before the courts” (Maglucot-Aw v. Maglucot, 329 SCRA 78 [2000])

Q: Under the Code of Professional Responsibility, what is the principal obligation of a lawyer towards the administration of justice (2004)

A: “A lawyer shall not exert every effort and consider

his duty to assist in the speedy and efficient administration of justice.”(Canon 12, Code of

Professional Responsibility)

Q: On June 8, 2001, RJ field with the Supreme Court a petition for prohibition, with a prayer for a temporary restraining order or preliminary injunction, to forestall his removal as chairman and

general manager of the government agency. He believed he had a fixed term until January 31, 2004, but there are indications that the new president would replace him. As he had apprehended, an Administrative Order was issued by the Chief Executive on July 2, 2001 recalling RJ’s appointment. Shortly thereafter, PT was appointed to the position. On July 3, 2003, RJ filed a motion to withdraw his petition. On the same day, without waiting for the resolution of his motion, he filed another petition with the Regional Trial Court seeking to prevent his removal as chairman and general manager of the government agency. On July 8, 2001, his motion to withdraw the first petition was granted by the Supreme Court without prejudice to his liability, if any, for contempt for engaging in shopping. Is he guilty of forum-shopping? Explain. (2002, 1991)

A: RJ is guilty of forum-shopping. Forum-shopping is

the practice of filing multiple actions arising from the same cause (Rule 12.02, Code of Professional

Responsibility). It is clear that RJ’s petition for

prohibition was still pending in the Supreme Court when he filed the same petition in the Regional Trial Court. He should have waited first for the resolution of his motion to withdraw before filing the second petition because he cannot assume that the motion will be granted.

Q: The Supreme Court issued a resolution in a case pending before it, requiring the petitioner to file, within ten (10) days from notice, a reply to the respondent’s comment. Attorney A, representing the petitioner, failed to file the reply despite the extension given by the Court. The Supreme Court dismissed the petition for non-compliance with its resolution. Attorney A timely moved for the reconsideration of the dismissal of the petition, claiming that his secretary, who was quite new in the office, failed to remind him of the deadline within which to file a reply. Resolve Attorney A’s motion. (2003)

A: Attorney A’s motion is not meritorious. He has

violated Rule 12.03 of the Code of Professional Responsibility which provides that “a lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, led the period lapse without submitting the same or offering an explanation for his failure to do so”. His claim that it was the fault of his secretary is not sufficient. He cannot take refuge behind the inefficiency of his secretary because the latter is not a guardian of the lawyer’s responsibilities (Nidua v. Lazaro, 174 SCRA

581).

Q: Atty. A is offered professional engagement to appear before Judge B who is A’s relative,

compadre and former office colleague. Is A ethically

compelled to refuse the engagement? Why? (2001)

A: A lawyer shall rely upon the merits of the cause

and refrain from any impropriety which tends to influence, or gives the appearance of the influencing the court (Canon 13, Code of Professional Conduct). There is no ethical constraint against a lawyer appearing before a judge who is a relative, compadre or former office colleague as long as the lawyer avoids giving the impression that he can influence the judge. On the other hand, the judge is required by the Code of Judicial Conduct not to take part in any proceeding where his impartiality may be reasonably questioned (Rule 3.12 Code of Judicial

Conduct). Among the grounds for mandatory

disqualification of the judge is if any of the lawyers is a relative by consanguinity or affinity within the fourth degree.

Q: Attorney A is the legal counsel of “Ang Manggagawa,” a labor union whose case is pending before the Court of Appeals. In order to press for the early resolution of their case, the union officers decided to stage a demonstration in front of the Court of Appeals, which Attorney A, when consulted, approved of, saying that it was their constitutional right to peaceably assemble and petition the government for redress of their grievances and for the speedy disposition of their cases before all judicial, quasi-judicial or administrative bodies. Is it appropriate for Attorney A to give that advice to the union officers? Explain. (2003)

A: The advice of Attorney A is not proper. In the case of Nestle’ Philippines, Inc. v. Sanchez, 154 SCRA 542 (1987), the Supreme Court held that picketing before

a court are attempts to pressure or influence the courts of justice and constitute contempt of court. The duty of advising the picketers and their leaders lies heavily on their lawyers.

Q: Before he joined the bench, Judge J was a former vice-mayor. Judge J also writes a weekly column in a local newspaper. In his column, Judge J wrote:

“I was wondering if the present vice-mayor can shed off his crocodile hide so that he can feel the clamor of the public for the resignation of hoodlum public officers of which he is one”.

When charged administratively, Judge J invoked freedom of expression. Is his defense tenable? Explain. (2000)

A: The judge’s reliance on freedom of expression is

untenable. The judge’s vicious writings compromise his duties as a judge in the impartial administration of justice. His writings lack judicial decorum which requires the use of temperate language at all times. The judge should not instigate litigation (Galang v.

Santos, 307 SCRA 583 {1999}, Royeca v. Animas, 71 SCRA 1 {1976}).

Q: Atty. J requested Judge K to be a principal sponsor at the wedding of his son. Atty. J met Judge K a month before. During an IBP-sponsored reception to welcome Judge K into the community, and having learned that Judge K takes his breakfast at a coffee shop near his (Judge K’s) boarding house, Atty. J made it a point to be at the coffee shop at about the time that Judge K takes his breakfast. Comment on Atty. J’s acts. Do they violate the Code of Professional Responsibility? (2000)

A: Yes, his actions violate the Code of Professional

Responsibility. Rule 13.01 of the same Code provides that a lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for, cultivating familiarity with judges. Atty. J obviously sought opportunity for cultivating familiarity with Judge K by being at the coffee shop where the latter takes his breakfast, and is extending extraordinary attention to the judge by inviting him to be a principal sponsor at the weeding of his son.

Q: As a defense counsel for the accused in a sensational case for abduction which the media is covering, you are fully convinced from the judge’s actuations that he is biased against your client. You are asked by the reporters to comment on the proceedings and the judge’s conduct. How should you react on the matter? (2003)

A: I will decline to give any comment. Rule 13.02 of

the Code of Professional Responsibility provides that “a lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for against a party.”

LAWYER AND THE CLIENT

Q: Atty. DD’s 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. BB’s express consent. Is Atty. DD’s motion legally tenable? Reason briefly. (2004) A: No. Atty. DD’s motion is not legally tenable. He

has no valid cause to terminate his services. His client, Mr. BB, being an agnostic and homosexual, should not be deprived of his counsel’s representation solely for that reason. A lawyer shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life or because of his own opinion regarding the guilt of said person (Canon 14,Rule 14.01, Code of

Professional Responsibility).

Q: What is a lawyer’s duty if he finds that he cannot honestly put up a valid or meritorious defense but his client insists that he litigate? Explain. (2002, 2001)

A: It depends, if it is a criminal case, he may not

decline to represent the accused solely on his opinion regarding the guilt of said person (Rule

14.01, Code of Professional Responsibility). The

Supreme Court has held that a counsel de officio has the duty to defend his client no matter how guilty he perceives him to be {People v. Nadera, Jr.,324 SCRA

490(2002)}. But if the case is a civil case, he should

decline to accept the same. In a civil action, the rules and ethics of the profession enjoin a lawyer from taking a bad case. The Attorney’s signature in every pleading constitutes a certification that there is good cause to support it and that it is not interposed for delay. It is the Attorney’s duty to counsel or maintain such actions or proceedings only as appear to him to be just and such defenses only as he believes to be honestly debatable under the law.

Q: May lawyer decline a request for the free legal aid to an indigent accused made by a chapter of the Integrated Bar of the Philippines (IBP)? Explain. (2002)

A: Rule 14.02 of the Code of Professional

Responsibility provides that “a lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de officio for as amicus

curiae or a request from the Integrated Bar of the

Philippines or any of its chapter for rendition of free legal aid.” He may, therefore, decline such as appointment for “serious and sufficient cause.” For example, he may decline such appointment if it will involve a conflict of interest with another client.

Q: When may refusal of a counsel to act as counsel

de oficio be justified on grounds aside from reasons

of health, extensive travel abroad, or similar reasons of urgency? Support your answer. (2001) A: Other justified grounds for refusal to act as

counsel de oficio are:

(a) Too many de oficio cases assigned to the lawyer (People v. Daeng, 49 SCRA 222); (b) Conflict of interest (Rule 14.03, CPR); (c) Lawyer is not in a position to carry out the

work effectively or competently (supra); (d) 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.

Q: Atty. Vidal, a semi-retired Metro Manila law practitioner, has a cattle ranch in the remote municipality of Caranglan, Neuva Ecija. He attends to his law office in Manila on Mondays, Tuesdays and Wednesdays, and spends the rest of the week in his cattle ranch riding horses and castrating bulls. In a criminal case pending before the Municipal Trial Court of Caranglan, the only other licensed member of the Bar is representing the private

complainant. The accused is a detention prisoner. The judge wants to expedite proceedings.

1. What must the judge do to expedite proceedings?

2. If Attorney Vidal is appointed to act as counsel

de oficio for the accused, could he refuse by saying

that in the province, he does not want to do anything except ride horses and castrate bulls? Explain. (1993)

A:

1. The judge may appoint Atty. Vidal as counsel de

oficio in order to expedite the proceedings. This is

especially because the accused is a detention prisoner who is presumed to be indigent and cannot retain a paid counsel.

2. Atty. Vidal cannot validly refuse the appointment as counsel de oficio. While it is true that he stays in the province to rest during the latter part of the week as lawyer he must comply with his oath to assist in the administration of justice. This precisely one the objective of the Integrated Bar which is to compel all lawyers in the active practice or not to comply with their obligation to assist in the administration of justice.

Q: May a lawyer decline as appointment by the court as counsel de oficio for an accused because he believes, and is fully convinced that the accused is guilty of the crime charged? (1991)

A: A lawyer may not decline an appointment as

counsel de oficio even if he is convinced that the accused is guilty. It is his obligation to at least protect his rights. He might even have him acquitted or at least reduce his penalty depending on the evidence presented during the trial.

Q: Will your answer be different if the legal aid is requested in a civil case? (2002)

A: My answer will not be exactly the same, because

in a civil case, the lawyer can also decline if he believes the action or defense to be unmeritorious. He is ethically bound to maintain only actions and proceedings which appear to him to be just and only such defenses which he believes to be honestly debatable under the law.

Q: Should a lawyer accept the losing case in a civil case. Explain. (1996)

A: A lawyer may not accept a “losing” civil case.

Firstly, his signature in every pleading constitutes a certification that there is good cause to support it and that it is not interposed for delay (Sec. 5, Rule 7,

Rules of Court). Secondly, it is the lawyer’s duty to

counsel or maintain such actions or proceedings only as appear to him to be just and such defenses only as he believes to be honestly debatable under law

(Sec. 20(a), Rule 138, Rules of Court). Thirdly, he is

not to encourage either the commencement or

continuance of an action or proceeding or delay in any mans cause for any corrupt motive or interests

(Sec. 20(g), Rule 138). Fourthly, he must decline to

conduct a civil cause or to make a defense when convinced that it is intended merely to harass or endure the opposite party or to work oppression or wrong (Canon 130, Canons of Professional Ethics). If a lawyer were to accept a bad civil case, it will either be to exert to his best efforts towards a compromise or, if unsuccessful, to advice his client to confess judgment.

Q: Would your be the same if he is asked to be counsel for a defendant in a civil case whose defense is based on falsified documents? If your answer is different, explain the ethical considerations for difference. (1991)

A: If the defense in a civil case is based on falsified

documents the lawyer should decline. That is in compliance with the lawyer’s oath that he should not wittingly nor willingly promote or sue any groundless false or unlawful cause or give nor consent to the same. He is obligated not to delay a man’s cause for money or malice.

LAWYER AND THE CLIENT

Q: Under the Code of Professional Responsibility, what is the principal obligation of a lawyer towards his client (2004)

A: “A lawyer shall observe candor, fairness and

loyalty in all his dealings and transactions with his client.” (Canon 15, Code of Professional Responsibility)

Q: X was indicted for murder. As he had no counsel on arraignment, the trial court appointed Atty. A as his counsel de oficio. When Atty. A asked X what was his stand, X said he was guilty. X thereupon pleaded guilty. Trial was thereafter conducted. When the turn of the defense to present evidence came, Atty. A manifested that he was not presenting any and that he was submitting the case for decision, praying that X’s plea be considered mitigating. Did Atty. A’s assistance or conduct approximate the competence and deligence which the Code of Professional Responsibility expected him? Explain. (2000)

A: No, it is the duty of the defense counsel when his

client desires to enter a plea of guilty to fully acquaint himself with the facts and surrounding circumstances of the case, advise his client of his constitutional rights and the full import of a plea guilty, see to it that the prescribed procedure is observed, present evidence, including possible mitigating circumstances, so that the precise degree of his client’s culpability is established and the appropriate penalty is imposed, and thus leave no room for doubt that there was a mistake and

misunderstanding as to the nature of the charges to which his client has pleaded guilty. Atty. A has fallen short of this required conduct.

Q: On the day of his arraignment, your client confided in you that he in fact killed the victim for which he was being charged with murder. You had been led to believe initially that he was just being framed and that another person had committed the crime. How would you advise your client to plead? (1994)

A: I would first inquire fully into the circumstances

under which he killed the victim. If I find out that he is guilty as charged, I would advise him to plead guilty, after explaining to him his constitutional rights and the import of plea of guilty.

Q: On the day of his arraignment, your client confided in you that he in fact killed the victim for which he was being charged with murder. You had been led to believe initially that he was just being framed and that another person had committed the crime. If he should refuse to heed your advice, what course of action would you pursue? (1994)

A: If he should refuse to follow my advice, I will still

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

Q: Explain your understanding of “Conflict of Interest” under the Code of professional Responsibility. (1997, 1993)

A: A lawyer is prohibited from representing

conflicting interest. There is conflict of interests within the context of the rule when, on behalf of client, it is the lawyer’s duty to contented for that which his duty to another client requires him to oppose. Another test is wether the acceptance of a charging fully his duty of undivided fidelity and loyalty to another client or invite suspicion of unfaithfulness or double-dealing in the performance thereof.

It is improper for a lawyer to appear as counsel for one party against his present client even in a totally unrelated case. With regard to former client, the traditional rule is to distinguish between related and unrelated cases. A lawyer may not represent a subsequent client against former client in a controversy that is related, directly or indirectly, to the subject matter of the previous litigation in which he appeared for the former client, otherwise, he may. However, in the case of Rosacia vs. Atty.B.

Bulalacao, 248 SCRA 665, the Supreme Court ruled

that a lawyer may not accept a case against a former client, even on an unrelated matter.

“The Court reiterates that an attorney owes loyalty to his client not in the case in which he has represented him but also after the relation of attorney and client has terminated as it is not good practice permit after-wards to defend in another case other person against his former client under the pretext that the other case. It behooves respondent not only to keep inviolate the client’s confidence but also to avoid the appearance of treachery and double-dealing for only then can litigants be encourage to entrust their secrets to their attorneys which is of paramount importance in the administration of justice.”

Q: Atty. Belle Montes is a former partner in the Rosales Law Office which is representing Corporation X before the Securities and Exchange Commission. Atty. Montes who is now practicing on his own, entered her appearance as counsel for Corporation Y in a suit between said corporation and Corporation X. Atty. Montes claims that since she did not personally handle the case of Corporation X when she was still with the Rosales Law Office she will not be representing conflicting interests. Is such argument valid? Explain. (1992) A: Atty. Belle Montes will be deemed to be

appearing for conflicting interests if she appears for Corporation Y against Corporation X.

This question is similar to the case of

Philippine Blooming Mills vs. Court of Appeals. In said

case, the Philippine Blooming Mills was the retainer of the ACCRA Law Office. Three lawyers of the ACCRA Law Office separated from said law firm and established their own law office. The three lawyers were disqualified from appearing for a corporation against the Philippine Blooming Mills.

The rule prohibiting appearing for conflicting interests applies to law firms. The employment of one member of a law firm is considered as an employment of the law firm and that the employment of a law firm is equivalent to a retainer of the members thereof.

Q: Primo, Segundo and Tercero are co-accused in 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 prosecution’s evidence in chief, Atty. Uno failed