Page |1 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007)
QUESTIONS ASKED MORE THAN ONCE IN THE BAR
QuAMTO (1990-2007) Legal and Judicial Ethics
ACADEMICS COMMITTEE ALIJON D. DE GUZMAN MARK KEVIN U. DELLOSA SHARMAGNE JOY A. BINAY ANTHONY M. ROBLES CLARABEL ANNE R. LACSINA RAFAEL LORENZ SANTOS JAMES BRYAN V. ESTELEYDES
CHAIRPERSON VICE-CHAIR FOR ACADEMICS VICE-CHAIR FOR ADMINISTRATION AND FINANCE VICE-CHAIR FOR LAYOUT AND DESIGN MEMBER, LAYOUT AND DESIGN TEAM MEMBER, LAYOUT AND DESIGN TEAM VICE-CHAIR FOR RESEARCH
RESEARCH COMMITTEE JAMES BRYAN V. ESTELEYDES MARIA JAMYKA S. FAMA PAULINE BREISSEE GAYLE D. ALCARAZ ROBBIE BAÑAGA MONICA S. CAJUCOM DOMINIC VICTOR C. DE ALBAN ANNABELLA HERNANDEZ MA. CRISTINA MANZO-DAGUDAG WILLIAM RUSSELL MALANG CHARMAINE PANLAQUE OMAR DELOSO
RESEACH COMMITTEE HEAD ASST. RESEARCH COMMITTEE HEAD MEMBER MEMBER MEMBER MEMBER MEMBER MEMBER MEMBER MEMBER MEMBER
Page |2 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007)
DISCLAIMER THE RISK OF USE, MISUSE OR NONUSE OF THIS BAR REVIEW MATERIAL SHALL BE BORNE BY THE USER/ NON-USER.
Page |3 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) 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 “Barratry” (1993)
Chasing”
from
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.
Page |4 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) 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.
Page |5 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) 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.
ANNULMENT OF MARRIAGE Competent Lawyer Reasonable Fee Call 221-2221 Mondays to Fridays
The following session day, the Justice called the attention of 8:00 his colleagues and p.m. the Bar Confidant a.m. to 5:00 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
Page |6 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) 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
Page |7 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) 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
Page |8 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) 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 Appeals, 100 SCRA 109 [19080]).
Page |9 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) 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
P a g e | 10 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) 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 forum-shopping. Is he guilty of forumshopping? 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 vicemayor 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}).
P a g e | 11 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) 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
P a g e | 12 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) 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
P a g e | 13 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) 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
P a g e | 14 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) to appear in court. When queried by the Judge if accused Primo is willing to proceed with the hearing despite his counsel’s 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. Is there any impediment to Atty. Dos acting as counsel de oficio for accused Primo? Reason. (2004) A: There is no impediment to Atty. Dos acting as counsel de oficio for accused Primo. There is no conflict of interest involved between Primo and his client Segundo, considering that both are invoking alibi as their defense. Q: May Atty. Tres legally refuse his designation as counsel de oficio of accused Primo? Reason. (2004) A: Atty. Tres may legally refuse his designation as counsel de oficio accused Primo. Since the defense of his client Tercero is that Primo and Segundo actually perpetrated the commission of the offense for which they are all charge, there is a conflict of interest between Tercero and Primo. There is conflicting interest if there is inconsistency in the interests of two or more opposing parties. The test or whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim but it is his duty to oppose it for the other client (Canon 6, Canons of Professional Ethics). Q: You are the counsel for the estate of a deceased person. Your wife is a practicing Certified Public Accountant. She was asked by her client to prepare and submit an itemized claim against the estate you are representing. She asks for your advice on the legal propriety of her client’s claim. What advice would you give her? Explain. (2003) A: I would advise her that it will be improper for her to handle her client’s claim against the estate. As a counsel for the estate, it is my duty to preserve the estate. Her client’s claim seeks to reduce the said estate. If she will handle such claim, I can be suspected of representing conflicting interests. The interests of the estate and of its creditors are adverse to each other (Nakpil v Valdez, 288 SCRA 75{1998}). Even if she is a different person, the fact that she is my wife will still give rise to the impression that we are acting as one. Q: You are the lawyer of Mr.”H”, the plaintiff, in a civil case for rescission of contract. The prospects for an amicable settlement look bright. Impressed by your ability, Mr. “I”, the defendant, would like very much to retain you as his defense counsel in a criminal case for homicide through reckless
imprudence. Mr. “I” wants you to forthwith enter your appearance, the arraignment already having been scheduled. Would you accept the offer? (1997) A: It depends. If the criminal case for homicide through reckless imprudence is against Mr. “H”, I cannot accept the same for that will involve a conflict of interest, although it is an unrelated case. But if it will not involve Mr. “H”, I can accept the same. However, to avoid suspicion and misunderstanding, it would be better if I inform Mr. “H” about the offer and secure his conformity to my handling the same. Q: Atty. B acted as counsel for C in a civil case. He also acted as counsel for D against C in another civil case. When D lost his case against C, he filed an administrative complaint against Atty. B for conflict of interest. Decide. (1991) A: If the case of C in the first case is entirely different and not related with the case of D against C, there is no conflict of interest. If the two cases however are related wherein the attorney has knowledge of the evidence of C then there is conflict of interest. Rule 15.01 provides that: A lawyer in conferring with a prospective client shall ascertain as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client. Rule 15.03 further provides that: A lawyer shall not represent conflicting interest except by written consent of all concerned given after a full disclosure of the facts. Q: The law firm of Sale, Santiago and Aldeguer has an existing and current retainership agreement with XYZ Corporation and ABC Company, both of which were pharmaceutical firms. XYZ Corporation discovered that a number of its patented drugs had been duplicated and sold in the market under ABC Company’s brand names. XYZ Corporation turned to the law firm and asked it to bring suit against ABC Company for patent infringement on several counts. What are the ethical considerations involved in this case and how are you going to resolve them? (1994) A: A lawyer may refuse to accept the representation of a client if he labors under conflict of interest between him and the prospective client or between a present client and the prospective client (Rule 14.03, Canon 14, Code of Professional Responsibility). It is unprofessional for a lawyer to represent conflicting interests, except by express consent of all concerned given after full disclosure of the fact (Canon 6, Canons of Professional Ethics). A lawyer cannot accept a case against a present client either in the same case or a totally unrelated case.
P a g e | 15 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) Q: A, who is charged in Court with estafa for misappropriating funds entrusted to him by B, consulted Atty. C about the case with the intention of engaging his services as defense counsel. Because A could not afford to pay the fee that Atty. C was charging him, A engaged the services of another counsel, Atty. D. At the trial of the case for the estafa against A, the prosecutor announced in open court that his next witness was Atty. C, whom he was calling to the witness stand. Counsel for A, Atty. D, vigorously opposed the prosecutor’s move on the ground Atty. C may not be called as witness for the prosecution as he might disclose a would be client’s confidence and secret. Asked by the presiding Judge what would be the nature of Atty. C’s testimony, the prosecutor said it has something to do with how A obtained from B the funds that the latter received from the former but failed to account for. Thereupon, Atty. A vigorously opposed the prosecutor’s motion. If you were the Judge, how would you rule on the matter? (1999) A: If I were the judge, I will not allow Atty. C to take the witness stand. When A consulted Atty. C about his case, a lawyer-client relationship was established between them. It does not matter that A did not eventually engage his services because of his fees; such relationship has already been created (Hilado v. David,84 Phil 569 ). A lawyer shall be bound by the rule on privileged communication in respect to matters disclosed to him by a prospective client (Rule 15.02 Code of Professional Responsibility). The rule on privileged communication provides that an attorney cannot, without the consent of his client, be examined as to any communication made by the client to him (Sec.21 [b], Rule 130, Rules of Court). The prosecutor has announced that Atty. C will be asked about how A obtained from B the funds that he failed to account for. Atty. C’s knowledge of such matter could have come only from A. Q: In the course of a drinking spree with Atty. Holgado who has always been his counsel in business deals, Simon bragged about his recent sexual adventures with socialites known for their expensive tastes. When Atty. Holgado asked Simon how he manages to finance his escapades, the latter answered that he has been using the bank deposits of rich clients of Banco Filipino where he works as manager. Is Simon’s revelation to Atty. Holgado covered by the Attorney-client privilege? (2006) A: Simon’s revelation to Atty. Holgado is not covered by the lawyer-client privilege. In the first place, it was not made on account of a lawyer-client relationship, that is, it was not made for the purpose of seeking legal advice. In the second place, it was not made in confidence. (Mercado v. Vitriolo, 459 SCRA 1 {2005}). In the third place, the Attorneyclient privilege does not cover information
concerning a crime or a fraud being committed or proposed to be committed. Q: Mrs. F, a young matron, was referred to you for legal advice by your good friend in connection with the matron’s jewelry business. She related to you the facts regarding a sale on consignment of pieces of jewelry to someone she did not name or identify. Since she was referred to you by a close friend, you did not bill her for the consultation. Neither did she offer to compensate you. Six months later, Mrs. G, the wife of the general manager of a client company of your law firm, asked you to defend her in a criminal case for estafa filed by Mrs. F. Would you agree to handle her case? (1997) A: First, I will inquire if the case for estafa filed by Mrs. F against the wife of the general manager is the same matter concerning which Mrs. F consulted me six months before. If it is a same matter, I will not be able to handle the case for the general manager’s wife, because of a conflict of interest. When Mrs. F consulted me and I give her professional advice, a lawyer-client relationship was created between us, regardless of that fact that I was not compensated for it. It would involve a conflict of interest if I will handle the case for the opposite party on the same matter (Hilado v. David, 84 Phil. 571). Q: Atty. Juan Cruz, a practicing lawyer, was employed by Pilipinas Bank as its bank attorney and notary public in three of its branches in Manila. While thus employed, Maria del Rio, who was unaware of Atty. Cruz’s employment in the bank, engaged Atty. Cruz’s services as a lawyer in a case that was filed by Pilipinas Bank for collection of sum of money involving one of its branches in Quezon City which Atty. Cruz accepted. The Quezon City Regional Trial Court, after due proceeding and hearing, rendered judgment in favor of Pilipinas Bank and against Maria del Rio who wanted to appeal the adverse judgment. But upon advice of Atty. Cruz, the adverse judgment was not appealed. Thereafter, Maria del Rio learned Atty. Cruz was employed by Pilipinas Bank as one of its attorneys. She now consults with you and asks you to take legal steps against Atty. Cruz for his apparent misconduct. What do you think of what Atty. Cruz did? Is there a valid and legal basis to discipline him? (1999, 2006) A: In agreeing to represent Maria del Rio in a case which Pilipinas Bank filed against her, Atty. Cruz violated the rule against representing conflicting interests. Rule 15.03 of the Code of Professional Responsibility provides that a lawyer shall not represent conflicting interests except by written consent of all concerned after a full disclosure of the facts. It is improper for a lawyer to appear as counsel for a person whose interest conflicts with that of his present or former client, even in an unrelated case (Philippine National Bank vs. Cedo, 243 SCRA 1). It
P a g e | 16 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) does not matter that the Pilipinas Bank branch in Quezon City is not the one of the branches he services in Manila. The bank itself is his client. This constitutes malpractice for which Atty. Cruz can be disciplined. Q: 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. What are the options available to Atty. Anama? Explain your answer. (1993) A: 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 lawyer’s obligation not to represent conflicting interests. Q: If you were Atty. Anama, which option would you take? Explain. (1993) A: 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 as point that, notwithstanding their consent to the common representation, the lawyer maybe suspected of disloyalty by one client. His continuing to act in a double capacity strikes deeply in the foundation of the Atty. client relationship. Q: Atty. Japzon, a former partner of XXX law firm, is representing Kapuso Corporation in a civil case against Kapamilya Corporation whose legal counsel is XXX law firm. Atty. Japzon claims that she never handled the case of Kapamilya Corporation when she was still with XXX law firm. Is there a conflict of interest? Explain. (2005) A: There is a conflict of interest when a lawyer represents inconsistent interests. This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used. Also, there is conflict of interest if the new retainer will require the attorney to perform an act which he represents him and also where he will be called upon in his new relation to use against his first client any knowledge acquired through their connection
(Santos vs. Beltran, 418 SCRA 17 [2003]). Since Atty. Japzon was a partner of the XXX law firm which has Kapamilya Corporation as its client, she cannot handle a case against it as such will involve conflict of interest. The employment of a law firm is equivalent to the retainer of the members therof. It does not matter if Atty. Japzon never handled a case of the Kapamilya Corporation when she was still with the XXX law firm. Q: Winnie retained the services of Atty. Derecho to file a collection case against Carmen. Winnie paid Atty. Derecho a sizeable retainer’s fee which the latter accepted. Later, in the process of determining the amount of debt to be collected from Carmen, Atty. Derecho noticed that of the total claim of 8.5 Million, certain invoices covering 3.5 Million appeared to be irregular. Winnie while admitting the irregularity assures her lawyer that there would be no problem as Carmen was by nature negligent in keeping her records and would not notice the mistakes anyway. Atty. Derecho tried to convince Winnie to exclude the amount of 3.5 Million but Winnie refused. As a consequence Atty. Derecho terminated their relationship and withdrew from the case. Was Atty. Derecho right in terminating their relationship and withdrawing from the case? How about the fact that he had already accepted a sizeable retainer’s fee from his client? Discuss fully. (1995) A: Atty. Derecho was right terminating the lawyerclient relationship and withdrawing from the case. Rule 22.01 of the Code of Professional Responsibility provides that a lawyer may withdraw his services when the client pursues an illegal or immoral course of conduct in connection with the matter 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). The fact that Atty. Derecho had already accepted a sizeable retainer’s fee should make no difference on his decision to withdraw. Moreover, he may retain the fees he has already received, his withdrawal being justified (Pineda, Legal & Judicial Ethics, 1994 edition, p. 223), unless the same is unconscionable. Q: A lawyer charged his client P10, 000.00 for filing fees pertaining to the complaint he filed in court. He actually spent only P1, 000.00. He did not account the balance. May his client charge him for misconduct as a member of the Philippine bar? Explain your answer. (1990) A: The client may charge his lawyer with misconduct for not accounting for the balance on P9, 000.00. it is well settled that where the client gives his lawyer money for a specific purpose, such as to pay the
P a g e | 17 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) docket fees for the filling of an action in court, so much of the money not used for the purpose belongs to the client and the lawyer holds in it trust for him. And it is the lawyer’s duty to promptly account for all money received from his client. For this reason, the lawyer’s failure to account for the balance of the money not spent for filling fees will render him liable for misappropriation, which is a ground for disbarment. Q: C engaged the services of attorney D concerning various mortgage contracts entered into by her husband from whom she is separated fearful that her real estate properties will be foreclosed and of impending suits for sums of money against her. Attorney D advised C to give him her land titles covering her lots so he could sell them to enable her to pay her creditors. He then persuaded her to execute deeds of sale in his favor without any monetary or valuable consideration, to which C agreed on condition that he would sell the lots and from the proceeds pay her creditors. Later on, C came to know that attorney D did not sell her lots but instead paid her creditors with his own funds and had her land titles registered in his name. Did attorney D violate the Code of Professional Responsibility? Explain. (2007) A: The decision of the Supreme Court in the case of Hernandez v. Go, (450 SCRA 1 [2005]), is squarely applicable to this problem. Under the same set of facts, the Supreme Court held the lawyer to have violated Canons 16 of the Code of Professional Responsibility, which provides as follows: Canon 16. A lawyer shall hold in trust all moneys and properties of his client hat may come into his possession. Canon 17 of the same Code, which provides follows: “Canon 17, A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him. The Supreme Court further held that the lawyer concerned has engaged in deceitful, dishonest, unlawful and grossly immoral acts, which might lessen the trust and confidence reposed by the public in the fidelity, honesty, and integrity of the legal profession, consequently, the Court disbarred him. Q: Attorney M accepted a civil case for the recovery of title and possession of land in behalf of N. Subsequently, after the Regional Trial Court had issued a decision adverse to N, the latter filed an administrative case against attorney M for disbarment. He alleged that attorney M caused the adverse ruling against him; that Attorney M did not file an opposition to the Demurrer to Evidence filed in the case, neither did he appear at the formal hearing on the demurrer, leading the trial court to assume that plaintiff’s counsel (Attorney M) appeared convinced of the validity of the demurrer filed; that attorney M did not even file a motion for
reconsideration, causing the order to become final and executory; and that even prior to the above elements and in view of attorney M’s apparent loss of interest in the case, he verbally requested attorney M to withdraw, but attorney M refused. Complainant further alleged that Attorney M abused his client’s trust and confidence and violated his oath of office in failing to defend his client’s cause to the very end. Attorney M replied that N did not give him his full cooperation; that the voluminous records turned over to him were in disarray, and that when he appeared for N, he had only half of the information and background of the case; that he was assured by N’s friends that they had approached the judge; that they requested him (M) to prepare a motion for reconsideration which he did and gave to them; however, these friends did not return the copy of the motion. Will the administrative case proper? Give reasons for your answer. (2007) A: The administrative case will prosper. In failing to file an opposition to the Demurrer to Evidence and to appear at the hearing thereof, and, more so, in failing to file a motion for reconsideration of the order granting the demurrer, thereby causing the same to become final and executor, Attorney M violated Canon 18 of the Code of Professional Responsibility, which provides that a lawyer shall serve his client with competence and diligence, and Rule 18.03 which provides that a lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall make him liable. In refusing to comply with N’s request to withdraw from the case, Atty. M violated the rule that a client has the absolute right to terminate the lawyer client relationship at any time with or without cause. Atty. M’s defense that the voluminous records turned over to him were in disarray and when he appeared for B he had only half of the information and background of the case, is not meritorious. Rule 18.02 provides that he shall not handle any legal matter without adequate preparation. He should have been competent and diligent enough to organize the records given to him, and not go to trial with only half of the information and knowledge of the case. It is his duty to go to trial to go to trial adequately prepared (Rule 12.01, Code of Professional Responsibility). His defense that friends of N assured him that they will file a motion of reconsideration, which he allegedly did and gave to them, is incredible. Even if true, Atty. M violated Canon No.13 of the Code of Professional Responsibility which provides that “a lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence or gives the appearance of influencing the court.”
P a g e | 18 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) For the matter, even his alleged giving of his motion for reconsideration to the friends of N for filing, is another instance of negligence on the part of Atty. M. He should have taken care to file his motion himself (Francisco v. Portugal, 484 SCRA 57 [2006]’). Q: What should a lawyer, generally obligated by law to accept a retainer, do if he knows or should know that he is not qualified to render the legal service required? Explain. (2001) A: “A lawyer shall not undertake a legal service which he knows or should know that he is not qualified to render. However, he may render such service if, with the consent of his client, he can obtain as collaborating counsel a lawyer who is competent on the matter.” (Rule 18.0, Code of Professional Conduct) Q: On account of his mistake, is counsel liable to his client for damages? Explain. (2002) A: A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall make him liable (Rule 18.03, Code of Professional Responsibility). A client who suffers prejudice by reason of his counsel’s inexcusable negligence in the discharge of his duty may file an action for damages against him. However, there must be a showing that had the lawyer exercise due diligence, the client under the facts and the law would have succeeded in recovering from the adverse party on in resisting the claim of the latter. Q: Attorney M accepted a civil case for the recovery of title and possession of land in behalf of N. Subsequently, after the Regional Trial Court had issued a decision adverse to N, the latter filed an administrative case against attorney M for disbarment. He alleged that attorney M caused the adverse ruling against him; that Attorney M did not file an opposition to the Demurrer to Evidence filed in the case, neither did he appear at the formal hearing on the demurrer, leading the trial court to assume that plaintiff’s counsel (Attorney M) appeared convinced of the validity of the demurrer filed; that attorney M did not even file a motion for reconsideration, causing the order to become final and executor; and that even prior to the above elements and in view of attorney M’s apparent loss of interest in the case, he verbally requested attorney M to withdraw, but attorney M refused. Complainant n further alleged that attorney M abused his client’s trust and confidence and violated his oath of office in failing to defend his client’s cause to the very end. Attorney M replied that N did not give him his full cooperation; that the voluminous records turned over to him were in disarray, and that when he appeared for N, he had only half of the information and background of the case; that he
was assured by N’s friends that they had approached the judge; that they requested him (M) to prepare a motion for reconsideration which he did and gave to them; however, these friends did not return the copy of the motion. Will the administrative case proper? Give reasons for your answer. (2007) A: The administrative case will prosper. In failing to file an opposition to the Demurrer to Evidence and to appear at the hearing thereof, and, more so, in failing to file a motion for reconsideration of the order granting the demurrer, thereby causing the same to become final and executor, Attorney M violated Canon 18 of the Code of Professional Responsibility, which provides that a lawyer shall serve his client with competence and diligence, and Rule 18.03 which provides that a lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall make him liable. In refusing to comply with N’s request to withdraw from the case, Atty. M violated the rule that a client has the absolute right to terminate the lawyer client relationship at any time with or without cause. Atty. M’s defense that the voluminous records turned over to him were in disarray and when he appeared for B he had only half of the information and background of the case, is not meritorious. Rule 18.02 provides that he shall not handle any legal matter without adequate preparation. He should have been competent and diligent enough to organize the records given to him, and not go to trial with only half of the information and knowledge of the case. It is his duty to go to trial to go to trial adequately prepared (Rule 12.01, Code of Professional Responsibility). His defense that friends of N assured him that they motion of reconsideration, which he allegedly did and gave to them, is incredible. Even if true, Atty. M violated Canon No.13 of the Code of Professional Responsibility which provides that “a lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence or gives the appearance of influencing the court.” For the matter, even his alleged giving of his motion for reconsideration to the friends of n for filing, is another instance of negligence on the part of Atty. M. He should have taken care to file his motion himself (Francisco v. Portugal, 484 SCRA 57 [2006]’). Q: After reading the decision against his client Jose Kapuspalad, Atty. Calmante was convinced that it had a reasonable basis and that he would have difficulty obtaining a reversal. For this reason, Atty. Calmante did not appeal. When Jose learned about the judgment against him, he blamed Atty. Calmante for not taking a timely appeal and filed an
P a g e | 19 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) administrative complaint for negligence against the latter. Decide the case. (2002) A: I would rule in favor of Jose Kapuspalad. In Reontoy v. Ibadlit, 285 SCRA 88 (1998), the Supreme Court found a lawyer to be negligent for failing, first of all, to notify his client about the adverse decision, and, secondly, for failing to file an appeal in the belief that such appeal would be useless. He thus deprived his client of his right to appeal. If a lawyer cannot contact his client at once after receiving the adverse decision, the prudent step for him to take to it file a notice of appeal, and withdraw it afterwards if his client should decide against the appeal. It is the client’s decision whether or not to appeal. Q: Under Canon 19 of the Code of Professional Responsibility, “a lawyer shall represent his client with zeal within the bounds of the law.” How far, in general terms, may lawyer go in advocating, supporting and defending the cause of his client in a criminal case filed against the latter? (2003) A: “The right to counsel must be more than just the presence of the lawyer in the court room or the mere propounding of the standard questions and objections. The right to counsel means that the accused is simply accorded legal assistance extended by a counsel who commits himself to the cause of the defense and acts accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind the basic rights of the accused, his being well-versed on the case and his knowing the fundamental procedure, essential laws and existing jurisprudence. The right of an accused to counsel finds substance in the performance by the lawyer of his sworn duty of fidelity to his client. Tersely put, it means an efficient and truly decisive legal assistance and not a simple perfunctory representation.” (People v. Bernas, 306 SCRA 293 [1999], cited in People v. Sta. Teresa, 354 SCRA 697 [2001]). However, a lawyer shall employ only honorable and honest means in the maintenance of his client’s cause. (Section 20, Rule 128). Q: Under the Code of Professional Responsibility, a lawyer owes fidelity to the cause of his client and shall represent his and shall represent his client with zeal in the maintenance and defense of his rights. How far, in general terms, may a lawyer go in advocating, supporting and defending his client’s rights and interests? (1997) A: Rule 19.01 of Code of Professional Responsibility provides that a lawyer shall employ only fair and honest means to obtain the lawful objectives of is client. In championing the cause of his client a lawyer should employ only such means are consistent with truth and honor. He should not go beyond the bounds of the ethics of his profession.
Q: Atty. A discovered his client’s fraud against the adverse party. What steps should he take so that his client will secure only that which is legally and justifiably due him? (2001) A: “A lawyer shall not undertake a legal service which he knows or should know that he is not qualified to render. However, he may render such service if, with the consent of his client, he can obtain as collaborating counsel a lawyer who is competent on the matter.” (Rule 18.0 Code of Professional Conduct) 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 you obligation to your client (1994) A: A lawyer who has received information that his client has, in the course of representation, perpetuated a fraud upon a person or tribunal, shall promptly call upon his client to rectify the same, and failing which he has to terminate the relationship with such client in accordance with the Rules of Court (Rule 19.02, Canon 19, Code of Professional Responsibility). Q: When is recovery of attorney’s fees based on quantum meruit allowed? (2007) A: Recovery of attorney’s fees on the basis of quantum meruit is authorized when (1) there is no express contract for payment of attorney’s fees agreed upon between the lawyer in the client; (2) when although there is a formal contract for attorney’s fees, the fees stipulated are found unconscionable or unreasonable by the court; and (3) when the contract for attorney’s fees is void due to purely formal defects of execution; (4) when the counsel, for justifiable cause, was not able to finish the case to its conclusion; (5) when lawyer and client disregard the contract for attorney’s fees ( Rilloraza vs. Eastern Telecommunications Phils., 308 SCRA 566 [1999]). Q: What is your understanding of quantum meruit as attorney’s fees? (1998) A: Quantum meruit literally means “as such as he deserve”. It is a measure for the lawyer’s fees in the absence of a contract, or when the fees stipulated in a contract are found unconscionable, or when the lawyer’s services are terminated for a cause. The lawyer is entitled to receive what he merits for his services, as much as he has earned. The factors to be taken into consideration are enumerated in Rule 22 of the Code of Professional responsibility.
P a g e | 20 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) Q: Mindful that the law is a profession and not a trade or business, what are the factors must you, as a lawyer, consider in charging reasonable compensation for your services? (1994) A: (a) The time spent and the extent of the services rendered or required; (b) The novelty and difficulty of the questions involved; (c) The importance of the subject; (d) The skill demanded; (e) The probability of losing other employment as a result of acceptance of the preferred case; (f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs; (g) The amount involved in the controversy and the benefits resulting to the client from the services; (h) The contingency or certainty of compensation; (i) The character of the employment, whether occasional or established; and (j) The professional standing of the lawyer. (Rule 20.1, Canon 20, Code of Professional Responsibility) Q: Miss Amparo engaged the services of Atty. Rito, a young lawyer and her former boyfriend, to act as her counsel in a case. True to his lawyer is oath, Atty. Rito represented her to the best of his ability even when he had no opportunity to talk to her on the progress of the case. When the case was terminated, Amparo refused to pay Atty. Rito fees on the ground that there was no written contract of their professional relationship. Can Amparo justify her action? (1991) A: Amparo may not justify her refusal to compensate Atty. Rito for his legal services. An attorney is entitled to attorney’s fees for services rendered even in the absence of a contract for attorney’s fees. Q: If Amparo cannot, upon what basis then may Atty. Rito be compensated? What are the considerations to be taken into account? (1991) A: Atty. Rito has the right to demand attorney’s fees based on an implied contract and for services rendered. The determination of the amount of attorney’s fees will be based on quantum meruit, namely; time spent and extent of services rendered; novelty of the case; importance of the subject matter; skill demanded; probability of losing other employment; customary changes, amount involved; contingency or certainty of compensation; professional standing and capacity of the client to pay.
Q: Atty. Chito Sobretodo was retained by Buddy Capilla to handle his case in the Securities and Exchange Commission. There is a tax angle so Sobretodo consulted Atty. Romy Collado, a tax expert, and for his assistance shared 50% of the retainer fees with Collado. Is this proper? Explain your answer. (1990) A: There is no impropriety in the sharing of attorney’s fees with tax expert Atty. Romy Collado. This is delegation of work and not delegation of a case. As long as Atty. Sobretodo is responsible to his client, Buddy Capilla, even if he delegated the research work to Atty. Collado, there is no impropriety in said arrangement. What is prohibited by the Code of Professional Responsibility is splitting of Attorney’s fees with a non-lawyer. Q: A real estate company, elated over the decision in a case regarding a dispute over a personal matter between its top sales representative and his neighbor, gifted Atty. O, who represented its sales representative in the litigation, with a 240-squaremeter lot in its newly developed subdivision. The case handled by Atty. O had nothing to do with the sales representative in the litigation, with a 240 square-meter lot in its newly developed subdivision. The case handled by Atty. O had nothing to do with the sales representative’s work for the real estate company. The latter’s offer of the lot, which Atty. O accepted, was in consideration of its sales representative’s being the firm’s Number one salesman. Was there a breach of the Code of Professional Responsibility by Atty. O when he accepted the 240 square-meter lot? (1997) A: Rule 20.03 of the Code of Professional Responsibility provides that a lawyer shall not, without the full knowledge and consent of the client, accept any fee, reward, costs, commission, interest, rebate of forwarding allowance or other compensation whatsoever related to his professional employment from anyone other than the client. “(T)here should be no room for suspicion on the part of the client that his lawyer is receiving compensation in connection with the case from third persons with hostile interest” (Report of IBP Committee. p. 112). Even if the secret compensation comes from a friendly person, if the act is discovered, it is bound to create dissension in the client-lawyer relationship. Worse, the lawyer will be able to enrich himself by receiving more than what is due him as attorney’s fees. (Pineda. Legal & Judicial Ethics, 1995 ed. p. 243) Q: Discuss the propriety of a lawyer filing a suit against his client concerning his fees. (1998) A: Rule 20.04 of the Code of Professional Responsibility provides that “a lawyer shall avoid controversies with his clients concerning his compensation and shall resort to judicial action only
P a g e | 21 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) to prevent imposition, injustice or fraud.” The legal profession is not a money-making trade but a form of public service. Lawyers should avoid giving the impression that they are mercenary (Perez v. Scottish Union and National Insurance Co.,76 Phil. 325). It might even turn out to be unproductive for him for potential clients are likely to avoid a lawyer with a reputation of using his clients. Q: What is “Assumpsit” and when is it proper? (2006) A: Assumpsit is an action in common law for the recovery of damages for the non-performance of a parol or simple contract, (Bouvier’s Law Dictionary, Vol. 1, pp. 269-270). The term has been used in relation to the collection of attorney’s fees on a quantum meruit basis. Where the lawyer has been employed without a contract for his compensation, he is entitled to recover an amount his services merit, on the basis of an implied promise by the client to pay for such services. This has been referred to as assumpsit on quantum meruit (Qui/ban v. Robino/171 SCRA 768 [1989]). Q: Six months ago, Atty. Z was consulted by A about a four-door apartment in Manila left by her deceased parents. A complained that her two siblings, B and C, who were occupying two units of the apartment, were collecting the rentals from the other two units and refusing to give her any part thereof. Atty. Z advised A to first seek the intervention of her relatives and told her that, if this failed, he would take legal action as A asked him to do. Today, September 22, 2002. B asks Atty. Z to defend him in a suit brought by A against him (B) and C through another counsel. Should Atty. Z tell B that A consulted him earlier about the same case? Why? (2002) A: Rule 21.07 of the Code of Professional Responsibility provides that “a lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest.” In this case, he has to reveal to B that he had been consulted by A with respect to the particular case where B has offered to retain his services. This revelation should be done in order to avoid a possible conflict of interest. Q: Cite at least five (5) valid reasons under any of which a lawyer may be allowed to withdraw from a case even without her client’s consent. (1997) A: (1) When the client pursues an illegal or immoral course of conduct in connection with the matters he (the lawyer) is handling. (2) When the client insists that the lawyer pursue conduct violative of these canons and rules.
(3) When his inability to work with co-counsel will not promote the best interest of the client. (4) When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively. (5) When the lawyer is elected or appointed to a public office. (6) Other similar cases. (Rule 22.01, Code of Professional Responsibility). Q: 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 (2) 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 attorney’s fees. When the case was called for hearing the next morning, the lawyer forthwith moved in open court that he be relieved as counsel for the defendant. Both the defendant and the plaintiff’s counsel objected to the motion. Under the given facts, is the defense lawyer legally justified in seeking withdrawal from the case? Why or why not? Reason briefly. (2004) A: Yes, he is justified. Under Rule 22.01 of the Code of Professional Responsibility, a lawyer may withdraw his services “if the client insists that the lawyer pursue conduct violative of these canons and rules”. The insistence of the client that the lawyer present witnesses whom he personally knows to have been perjured, will expose him to criminal and civil liability and violate his duty of candor, fairness and good faith to the court. Q: Atty. A objects to the collaboration of Atty. B as proposed by client C in a pending case. How would A, B and C handle the situation? (2001) A: A, B and C may handle the situation in the following manner“A” can offer to withdraw his services. Rule 22.01 (c) of the Code of Professional Responsibility allows a lawyer to withdraw his services if his inability to work with co-counsel will not promote the best interest of his client. Here, by objecting to the collaboration of Atty. B, Atty. A foresees his inability to work with the former. “A” may with withdraw to give his client a free hand in protecting his interest. “B” should refuse to accept the case, otherwise, he may be encroaching on the professional employment of another lawyer, A lawyer should decline association as colleague if it is objectionable to the original counsel, but if the lawyer first retained is relieved, another may come
P a g e | 22 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) into the case. (Canon 7, Canons of Professional Ethics.) “C” the client must choose only one of the lawyers. If he wants Atty. B as his lawyer, he should formally terminate the services of “A” so “B” can formally enter his appearance in the case. Q: Atty. X filed a notice of withdrawal of appearance as counsel for the accused Y after the prosecution rested its case. The reason for the withdrawal of Atty. X was the failure of accused Y to affix his conformity to the demand of Atty. X for increase in attorney’s fees. Is the ground for withdrawal justified? Explain. (2000) A: The ground for withdrawal is not justified. Rule 22.01 (e) of the Code of Professional Responsibility provides that a lawyer may withdraw his services when the client deliberately fails to pay the fees for his services or fails to comply with the retainer agreement. He has only refused to agree with the lawyer’s demand for an increase in his fees. It is his rigth to refuse; that is part of his freedom of contract. Q: What steps should first be done by the attorney befrore he can endorse or object to his clientis intention to plead guilty? State your reasons. (2001) A: It is duty of defense counsel to (a) study thoroughly the record and surrounding circumstances of the case and determine if there are valid defenses he can use, (b) confer with the accused and obtain from him his account of what had happened. (c) advise him of his constitutional and statutory rights, including advisabilty of entering plea bargaining, (d) thoroughly explain to him the impact of a guilty plea and the inevitable conviction that will follow, and (e) if the client still insists on pleading guilty, see to it that theprescribed procedure necessary to the administration of justice is strictly followed and disclosed in the court records. SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS Q: Atty. X was retained by E in a case for violation of BP 22 filed by B before the scheduled hearing. Atty. X assured B that E would pay the value of the dishonored check. Elated at the prospect of being paid , B wined and dined Atty. X several times. Atty. X convinced B not to appear at the scheduled hearings. Due to non-appearance of B, the estafa case was dismissed for failure to prosecute. B, however, was never paid. Thus, she filed a case for disbarment against Atty. X. (1996) A: Yes, the conduct of Atty. S constitutes malpractice. A lawyer owes candor, fairness and good faith to not do any falsehood or shall be misled or allow the court to be misled by any artifice. He
owes loyalty to his client. In a case involving similar facts, the Supreme Court found that the lawyer concerned obstructed the administration of justice and suspended him for two years (Cantorne v. Ducusin 57 Phil.20 ). Q: Atty Walasunto has been a member of the Philippine Bar for twenty (20) years but has never plied 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 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 (2004) A: No. His contentions are not meritorious. In the first place, a ground for disbarment is conviction of a crime involving moral turpitude (Sec. 27, Rule 138, Rules of Court), and the violation of B.P. Blg. 22 is considered to be a crime involving moral turpitude (People v. Tuanda, 181 SCRA 692 [1990]). In the second place, Rule 7.03 of the Code of Professional Responsibility provides that “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.” Additionally, Rule 1.01 of the same Code provides that “a lawyer shall not engage in unlawful, dishonest, immoral or deceiptful conduct.” Q: Atty. N. had an extramarital affair with O, a married woman, as a result of which they begot a child P and undertook to support him. On the basis of the admission, is Atty. N. subject to disciplinary action by the Supreme Court? Why? (2002) A: In the case of Tucay v. Tucay, 318 SCRA 229 (1999), the Supreme Court held that the finding that a lawyer had been carrying on an illicit affair with a married woman is a “grossly immoral conduct and only indicative of an extremely low regard for the fundamental ethics of his profession.” 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
P a g e | 23 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) 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. May disciplinary action be taken against Atty. BB for his failure to pay the loan? Why? (2002) A: In the case of Toledo v Abalos, 315 SCRA 419 (1999), the Supreme Court held that a lawyer may not be disciplined for failure to pay her loan obligation. The remedy is to file an action for collection against her in the regular courts. However, unwarranted obstinacy in evading the payment of a debt has been considered as gross misconduct [Constantino v. Saludares, 228 SCRA 233 (1993)]. A lawyer is obligated to promote respect for legal processes. This includes order of the Commission on Bar Discipline of the IBP. (The lawyer’s oath likewise says “I will obey the duly constituted authorities.”) CANONS OF PROFESSIONAL ETHICS Q: In the course of a judicial proceeding, a conflict opinion as to a particular legal course of action to be taken arose between AB and CD, two (2) lawyers hired by Mr. XX, a party-litigant, to act jointly as his counsel. How should such problem be resolved, and whose opinion should prevail? 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 a legally and factually wellgrounded as her opinion is? Explain briefly. (2004) A: “When lawyers jointly associated in a cause cannot agree as to any matter vital to the interest of the client, the conflict of opinion should be frankly stated to him for his final determination. His decision should be accepted unless the nature of the difference makes it impracticable for the lawyer whose judgment has been overruled to cooperate effectively. In this event, it is his duty to ask the client to relieved him (Canon 7, Canon of Professional Ethics). Q: M has a pending case for collection of sum of money. He is not satisfied with his lawyer N, who almost always goes to court evidently unprepared. He wants you to promptly take over the case. You agree to handle the case. What steps must you take to formalize the engagement? (1997) A: I will ask M to first terminate or secure the withdrawal of N as his counsel. If N’s services are terminated, I can subsequently enter my appearance as the new counsel of M. If he agrees to withdraw simultaneously with my appearance, I will prepare a substitution of attorney to be filed in court, containing the written conformities of M and N. Q: Atty. A’s client filed a case against Atty. B’s client for pirating the book of A’s client. A’s client is a friend of B. A filed a disbarment complaint against
B for convincing A’s client to settle the case. Decide. (2001) A: The complaint shall prosper. A lawyer should not in any way communicate upon the subject of 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. (Canon 9, Canons of Professional Ethics, Likong v. Atty. Lim, A.C No. 3149, August 17, 1994) Q: As a rule, why should an attorney not testify as a witness for his client? (2001, 1993) A: “The underlying reason for the impropriety of a lawyer acting in such dual capacity lies in the difference between the function of a witness and that of an advocate. The function of a witness is to tell the facts as he recalls them in answer to questions. The function of an advocate is that of a partisan. It is difficult to distinguish between the zeal of an advocate and the fairness and impartiality of a disinterested witness. The lawyer will find it hard to disassociate his relation to his client as an attorney and his relation to the party as a witness. ” (Agpalo, p. 129) Q: While Atty. Ambo Lancia was on his way to office in Makati, he chanced upon a vehicular accident involving a wayward bus with a small Kia whose driver, a Mr. Malas, suffered serious physical injuries. Coming to the succor of the badly injured Mr. Malas, Atty. Lancia droved him to the nearest hospital. On their way to the hospital, Mr. Malas found out that Atty. Lancia was a practicing lawyer. In gratitude for his help, Mr. Malas retained Atty. Lancia to file suit against the bus company and its driver. If you were Atty. Lancia; would you accept the case? (1994) A: I will not accept the case if I were Atty. Lancia because it is difficult to dismiss the suspicion that Atty. Lancia had assisted Mr. Malas for the purpose of soliciting legal business. It is not clear from the facts how Mr. Malas learned that Atty. Lancia was a practicing lawyer. This could have happen only if Atty. Lancia introduced himself as a lawyer. Moreover, Atty. Lancia may be utilized as a witness. Q: Lawyer U, a retired Tanodbayan prosecutor, now in the private practice of law entered his appearance for and in behalf of an accused in a case before the Sandiganbayan. The prosecution moved for his disqualification on the ground that he (had) earlier appeared for the prosecution in the case and is knowledgeable about the prosecution’s evidence, both documentary and testimonial. U contented that he merely appeared at the arraignment on behalf of the prosecutor assigned to the case who was absent at that time. Decide. (1991)
P a g e | 24 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) A: Canon 36 provides that a lawyer, having once held public office or having been in public employ, should not, after his retirement, accept employment in connection with any matter he has investigated or passed upon while in such office or employ. The contention of U that he merely appeared at the arraignment on behalf of the absent prosecutor is not enough. As a former Tanodbayan prosecutor, he certainly had occasion to obtain knowledge about the prosecution’s evidence. Q: Atty. Cua wins a case involving a donation mortis causa. Afterwards, she discovers, and is convinced, that the Deed of Donation was falsified, and that it was her client who did the falsification. If you were Atty. Cua, what would you do? Explain. (1993) A: If I were Atty. Cua, I would resign as his lawyer. The question as to whether the attorney should disclose the falsification to the court or to the prosecuting attorney involves a balancing of loyalties. One ethical rule states that “counsel upon the trial of a cause in which perjury has been committed owes it to the profession and the public to bring the matter to the knowledge of the prosecuting authorities”. Another ethical rule provides that when “a lawyer discovers that some fraud or deception has been practiced, which is unjustly imposed upon the court or a party, he should endeavor to rectify it; at first by advising his client, and if his client refuses to forego the advantage thus unjustly gained, he should promptly inform the injured person or his counsel, so that they may take appropriate steps”. A literal application of these ethical injunctions requires the disclosure of the falsification. On the other hand, the attorney’s duty to keep inviolate the client’s confidence demands that he refrain from revealing the client’s wrong-doing, the same being a past offense. Resigning as a lawyer will enable the lawyer to observe such loyalties. If the decision is already final, as a lawyer, I would advise my client to withdraw any claim on the donation mortis causa and have the property be given to the rightful owner of the property in subject matter of the donation. This action is in compliance with my duty as a lawyer to assist in the administration of justice and in compliance of my oath: “I will do know falsehood, nor consent to the doing of any in court; that I will not wittingly or willingly promote or sue any groundless, false and/or unlawful suit, nor give aide nor consent to the same”. Q: Mrs. Amy Dizon’s husband was killed in a traffic accident. She wants to sue the bus company for damages but she cannot afford a lawyer. She approached Atty. Larry Rio who agreed to handle the case without any retainer’s fee or expenses on her part, on the condition that in case of recovery of damages, he shall get 33% of the award by the
court. Is this arrangement valid and permissible? Decide with reasons. (1990) A: In the recent case of Angel L. Bautista v Atty. Ramon A. Gonzales, Adm. Matter No. 1625, February 12, 1990, the Supreme Court held that an agreement as to attorney’s fees which provides that the lawyer shall defray all the expenses of the suit, “is contrary to Canon 42 of the Canons of Professional Ethics which provides that a lawyer may not properly agree with a client to pay or bear the expenses of litigation. The Court added that “although a lawyer may in good faith, advance the expenses of litigation, the same should be subject to reimbursement.” And, “an agreement whereby an attorney agrees to pay the expenses of proceedings to enforce the client’s rights is champertous” and “against public policy especially where, as in this case, the attorney has agreed to carry on the action at his own expense in consideration of some bargain to have part of the thing in dispute.” The arrangement between Amy Dizon and Atty. Larry Rio, which provides the latter will handle the case without any retainer’s fee or expenses on her part, can be taken to mean that the lawyer will carry out the case at his own expenses without reimbursement. On the basis of the foregoing decision of the Supreme Court, such an arrangement is invalid. However, the contingent fee contract is not prohibited by law and is impliedly sanctioned. A contingent fee is however closely supervised by the court to safeguard the client from unjust charges, and its validity depends, in large measure, upon the reasonableness of the amount fixed under the circumstances of the case. A contingent fee of 33% of the amount of recovery may be reasonable if the bus company fights the case until the Supreme Court and the litigation is hard-fought and long drawn; it may be unreasonable if the bus company agrees to compromise. But the fact that a contingent fee is unreasonable does not preclude the lawyer from being paid his fees on quantum meruit basis. Q: The contract of attorney’s fees entered into by Atty. Quintos and his client, Susan, stipulates that if a judgment is rendered in her favor, he gets 60% of the property recovered as a contingent fee. In turn, he will assume payment of all expenses of litigation. Is the agreement valid? (2006) A: The agreement that a lawyer will assume payment of all the expenses of litigation makes it a champertous contract, which is invalid. Q: What is a champertous contract? (2000) A: A champertous contract is one where the lawyer agrees to conduct litigation on his own account and to pay the expenses thereof, and to receive as his
P a g e | 25 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) fee a portion of the proceeds of judgment. It is contrary to public policy and invalid because it violates the fiduciary relationship between the lawyer and his client (Bautista v Gonzales, 182 SCRA 151 [1990]). In effect, he is investing in the case with the expectation of making profit. The practice of law is a profession and not a business venture. Q: Distinguish between a champertous contract and a contingent fee contract. (2000, 1999) A: A contingent fee contract is an agreement in which the lawyer’s fee, usually a fixed percentage of what may be recovered in the action, is made to depend upon the success in the effort to enforce or defend the client’s right. It is a valid agreement. It is different from a champertous contract in that the lawyer does not undertake to shoulder the expenses of litigation. JUDICIAL ETHICS Q: Would it be proper for the judge to accept a donation of a lawyer’s table and chairs for his sala from the local chapter of the Integrated Bar of the Philippines (IBP)? Explain your answer. (1990) A: It would be proper for the judge to accept the donation of a lawyer’s table and chairs for his sala from the local chapter of the IBP because the donation comes from an organization of lawyers whose duty, among others, is to help in the proper administration of justice. Accepting the donation is not for the personal benefit of the judge but for providing physical facilities for the administration of justice, which is the concern by both the judge and the IBP local chapter. What is prohibited is accepting presents or donations from the litigants or from particular lawyers practicing before him. Q: May a judge properly solicit for his promotion the endorsement of the local chapter of the IBP to the judicial and bar council? Explain your answer. (1990) A: A judge may not properly solicit for his promotion the endorsement of the local chapter of the IBP to the judicial and bar council because it will give the impression that his promotion is not purely on merits, and the judge may feel beholden to the particular officers of the local chapter which may, in the future, influence him in the disposition of the cases handled by such officers as counsel litigants. Moreover, considering his position, the local chapter officers may not be able to refuse such solicitations even if they believed that he is not qualified for promotion. The judge should stand by his own ability, qualifications and fitness, without exerting extra effort on his part influence the local chapter to endorse his promotion. The local chapter should, on its own and without solicitation from the judge, make its own assessment and appraisal of the
judge’s qualifications and fitness for promotion, and if it is convinced that the judge possesses the required qualifications, it is the duty of the local chapter to make known such assessment to the Judicial and Bar Council. Q: Pending before the sala of Judge Magbag is the case of CDG versus JQT. The legal counsel of JQT is Atty. Ocsang who happens to be the brother of Atty. Ferreras, a friend of Judge Magbag. While the case was still being heard, Atty. Ferreras and his wife celebrated their wedding anniversary. They invited their friends and family to a dinner party at their house in Forbes Park. Judge Magbag attended the party and was seen conversing with Atty. Ocsang while they were eating at the same table. Comment on the propriety of Judge Magbag’s act. (2005) A: A Judge is not required to live in seclusion. He is permitted to have a social life as long as it does not interfere with his judicial duties or detract from the dignity of the court (Canon 5, Code of Judicial Conduct). However, he should be scrupulously careful to avoid such action as may reasonably tend to awaken the suspicion that his social or business relations or friendships constitute an element in determining his judicial action (Canon 30, Canons of Judicial Ethics). A Judge should avoid impropriety and appearance of impropriety in all activities (Canon 2, Code of Judicial Conduct). Sitting on the same table and conversing with a lawyer with a pending case before him raises such appearance of impropriety. Q: 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. (2004) A: I would advise him against it. Rule 5.07 of the Code of Judicial Conduct expressly and absolutely prohibits judges from engaging in the private practice of law, because of the incompatible nature between the duties of a judge and a lawyer. Moreover, as a Judge he can influence to a certain extent the outcome of the case even if it is with another court. A Judge shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court or administrative agency (Rule 2.04, Code of Judicial Conduct). Q: In an extrajudicial settlement of the estate of the late Juan Mayaman, the heirs requested Judge Maawain, a family friend, to go over the document prepared by a new lawyer before they signed it. Judge Maawain agreed and even acted as an
P a g e | 26 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) instrumental witness. Did Judge Maawain engage in the unauthorized practice of law? Why? (2002) A: Section 35, Rule 138 of the Revised Rules of Court and Rule 5.07 of the Code of Judicial Conduct prohibit a judge from engaging in the private practice of law as a member of the bar or giving professional advice to clients. In the case of De Castro v. Capulong, 118 SCRA 5 (1982), the Supreme Court held that a judge who merely acted as a witness to a document and who explained to the party waiving his rights of redemption over mortgaged properties and the consequences thereof, does not engage himself in the practice of law. This appears to be more applicable to the case of Judge Maawain. He did not give professional advice in anticipation of litigation. He was just asked to review a deed of extrajudicial settlement of estate. He signed merely as an instrumental witness and not as a legal counsel. Besides, his act was an isolated act. Q: Justice X of the Court of Appeals, by mutual agreement of two opposing parties, asked him to be their sole arbitrator in the controversy that arose out of the construction of a building in Makati City. The fee that would be paid to him was substantial, it amounting to double his annual salary and allowances. When Justice X declined the offer, the parties suggested that he go on leave of absence for three months to enable him to do the job. May Justice X accept the work offered to him while on leave of absence? (1999) A: Justice X may not accept the work offered him even while on leave of absence from the Court of Appeals. A justice should regulate extra-judicial activities to minimize the risk of conflict with judicial duties (Canon 5, Code of Judicial Ethics). He shall not accept appointment or designation to any agency performing quasi-judicial or administrative functions (Rule 5.09, Code of Judicial Conduct). This is specially so since decisions of voluntary arbitrators are appealable to the Court of Appeals. He must minimize the risk of conflict with judicial duties (Canons 4 and 5, Code of Professional Responsibility). Moreover, he will create the impression that he is merely interested in the fee involved, which will detract from the integrity of the judiciary. Q: What qualities should an ideal judge possess under the New Code of Judicial Conduct for the Philippine Judiciary? (2007) A: The qualities required of judges by the New Code of Judicial Conduct for the Philippine Judiciary are Independence (Canon 1), Integrity (Canon 2), Impartiality (Canon 3), Propriety (Canon 4), Equality (Canon 5), and Competence and Diligence (Canon 6).
Q: Judge C was appointed MTC Judge in 1993. Subsequently, the Judicial and Bar Council received information that previously he had been dismissed as Assistant City Prosecutor of Manila. It appeared that when he applied for appointment to the Judiciary, his answer to the question in the personal Data Sheet – “Have you ever been retired, dismissed or forced to resign from any employment?” was – “Optional under Republic Act No. 1145.” The truth is, he was dismissed for gross misconduct as Assistant City prosecutor. May he be dismissed as Judge? (1998) A: Yes, by his concealment of his previous dismissal from the public service, which the Judicial and Bar Council would have taken into consideration in acting on his application for appointment as a judge, he (the judge) committed an act of dishonesty that rendered him unfit to be appointed, and to remain, in the Judiciary he has tarnished with his falsehood. (Re: Inquiry on the Appointment of Judge Enrique A. Cube, 227 SCRA 193; Jose Estacion, 181 SCRA 33, Estanislao Belan, August 6, 1998). Q: In the Course of a petition for bail in a case for illegal possession of firearms in furtherance of rebellion pending before him, judge AM (who has been long frustrated with his work because he has not been appointed to the Court of Appeals despite the strong recommendations of several Members of Congress) made statements contrary to the rulings of the Supreme Court on the matter. He further made utterances imputing bias to the Supreme Court in favor of the Administration which, according to him, is the reason why all petitions for bail in similar cases were denied despite the apparent weakness of the evidence for the prosecution. What are the implications of Judge AM’s actuations? (1991) A: The implication of Judge AM is actuations are that he could be violating his oath of office of upholding the law and the Code of Judicial conduct to administer his office with due regard to the integrity of the system of law. He could also be violating his duty as a minister of justice under a government of laws and not of men. 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 to pay her obligation to Jennifer at 40% interest 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 prevented her from
P a g e | 27 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) consulting her lawyer Atty. de Jose when she entered into the compromise agreement, thereby violating the rules of professional conduct, Atty. Hilado countered that Doris Dy freely and voluntarily entered into the compromise agreement which in fact was approved by the court. Was it proper for the judge to approve the compromise agreement since the terms thereof were just and fair even if counsel for one of the parties was not consulted or did not participate therein? Explain. (1995) A: It was not proper for the judge to approve the compromise agreement without the participation of the lawyer of one of the parties, even if the agreement was just and fair. Even if a client has exclusive control of the cause of action and may compromise the same, such right is not absolute. He may not, for example, enter into a compromise to defeat the lawyer’s right to a just compensation. Such right is entitled to protection from the court. Q: A judge, in order to ease his clogged docket, would exert efforts to compel the accused in criminal cases to plead guilty to a lesser offense and advise party litigants in civil cases, whose positions appear weak, to accept the compromise offered by the opposing party. Is the practice legally acceptable? (1998) A: The practice is legally acceptable as long as the judge does not exert pressure on the parties and takes care that he does not appear to have prejudged the case. Where a judge has told a party that his case is weak before the latter was fully heard, such was considered a ground for his disqualification (Castilli v Juan, 62 SCRA 124) Q: What would your comment be about a judge who, whenever he promulgates a decision, invites representatives of the print and broadcast media to his sala for the purpose of having promulgation televised, and that in the process, he gives interviews although he does not discuss his personal views on the merits of the case? Explain your answer. (1990) A: The judge’s conduct is improper. Canon II, Rule 2.02 of the Code of Judicial Conduct provides that a judge should not seek publicity for personal vainglory. A judge should conduct proceedings in court with fitting dignity and decorum and in such a manner as to reflect the importance and seriousness of the inquiry to ascertain the truth. Allowing television coverage of the promulgation of the decision would detract the dignity of the court proceedings, degrade the court and create misconception in the public mind. His giving interviews, even if he does not discuss his personal views on the merits of the case, has no other purpose than to seek publicity for personal
vainglory, which is prohibited. Q: How far should the judge allow publicity of the proceedings and decisions of his court? Explain your answer. (1990) A: A judge may allow publicity by letting his actuations as a judge and his decisions speak for themselves, without any comment on his part. What makes publicity improper is the employment of traditional dignity of court proceedings and of the judge himself. Good, efficient, speedy, and correct administration of justice on his part has a away of publicizing itself and catching public attention, and the publicity thereby generated is a normal byproduct of the efficient discharge of his duties, which is proper. Q: In connection with a sensational criminal case, the Public Relations Officer of the All-Judges Association Inc. issued two press releases, one stating that the trial judge should not have granted bail to the accused since evidence of guilt was strong and the other, calling upon said judge to inhibit himself from trying the case since he did not exhibit the cold neutrality of an impartial judge in ruling upon certain motions. Comment on the actuations of the Public Relations Officer who is presumably authorized by the Association. (1992) A: The actuations of the Public Relation Officer of the All-Judges Association are improper. What the All-Judges association should do is to report the matter to the Supreme Court and file the proper charges. The Supreme Court may refer the matter for investigation to a justice of the Court of Appeals. The issuance of the press release is in violation of the rule that charges and investigations against Judges should be confidential in character and should not be published. The Public Relation Officer can even be held in contempt of court. Furthermore, Rule 2.04 of the Code of Judicial Conduct states that “a judge shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court or administrative agency.” Rule 3.07 of the same Code states that “a judge should abstain from making public comments on any pending case and should require similar restraint on the part of court personnel.” Q: Judge Aficionado was among the several thousands of spectators watching a basketball game at the Rizal Memorial Coliseum who saw the stabbing of referee Maykiling by player Baracco in the course of the game. The criminal case correspondingly filed against Baracco for the stabbing of Maykiling 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. (2004)
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A: No, he should not preside over the case. Rule 3.12 (a) of the Code of Judicial Conduct provides that a judge should not take part in any proceeding where the judge has personal knowledge of disputed evidentiary facts concerning the same. 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 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 and former office colleague as long as the lawyer avoids giving impressions 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: In a hearing before the Court Tax of Appeals, Atty. G was invited to appear as amicus curiae. One of the judges hearing the tax case is the father of Atty. G. The counsel for the respondent moved for the inhibition of the judge in view of the father-son relationship. Is there merit to the motion? Decide. (1996)
himself in the case because the defendant never sought his disqualification. (1999) A: Judge X is liable for misconduct in office. Rule 3.12 of the Code of Judicial Conduct provides that a judge should take no part in a proceeding where impartiality might reasonably be questioned. In fact, it is mandatory for him to inhibit or disqualify himself if he is related by consanguinity or affinity to a party litigant within the sixth degree or to counsel within the fourth degree (Hurtado v. Jurdalena, 84 SCRA 41). He need not wait for a motion of the parties in order to disqualify himself. Q: RTC Judge Q is a deacon in the Iglesia ni Kristo church in San Francisco del Monte, Quezon City. R, a member of the same religious sect belonging to the same INK community in San Francisco del Monte, filed a case against S who belongs to the El Shaddai charismatic group. The case was raffled to Judge Q‘s sala. The lawyer of S filed a motion to disqualify Judge Q on the ground that since he and the plaintiff belonged to the same religious sect and community in San Francisco del Monte, Judge Q would not possess the cold neutrality of an impartial judge. Judge Q denied the motion on the ground that the reason invoked for his disqualification was not among the grounds for disqualification under the Rules of Court and the Code of Judicial Conduct. Was Judge Q’s denial of the motion for inhibition well founded? (1997)
A: There is no merit to the motion. Rule 3.12 of the Code of Judicial Conduct provides that “A judge should take no part where the judge’s impartiality might reasonably be questioned.” Among the instances for the disqualification of a judge is that he is related to a party litigant within the sixth degree or to counsel within the fourth degree of consanguinity or affinity. But this refers to counsel of the parties. An amicus curiae is supposed to be an experienced and impartial attorney invited by the court to appear and help in the disposition of issues submitted to it. He represents no party to the case. There is, therefore, no ground to fear the loss of the judge’s impartiality in this case if his son is appointed amicus curiae.
A: The fact that Judge Q and Litigant R both belong to the Iglesia Ni Kristo while Litigant S belongs to the El Shaddai group, is not a mandatory ground for disqualifying Judge Q from presiding over the case. The motion for his inhibition is addressed to his sound discretion and he should exercise the same in a way (that) the people’s faith in the courts of justice (will) not (be) impaired. He should 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 (Dimacuha vs. Concepcion, 117 SCRA 630). Under the circumstances of this case, where the only ground given for his disqualification is that he and one of the litigants are members of the same religious community, I believe that his denial of the motion for his disqualification is proper. In Vda. De Ignacio vs. BLT Bus Co., 34 SCRA 618, the Supreme Court held that the fact that one of the counsels in a case was a classmate of the trial judge is not a legal ground for the disqualification of the judge.
Q: In a case before him, it was the son of Municipal Trial Court Judge X who appeared as a counsel for the plaintiff. After the proceeding, judgment was rendered in favor of the plaintiff and against the defendant. B, the defendant in the case, complained against Judge X for not disqualifying himself in hearing and deciding the case. In his defense, Judge X alleged that he did not disqualify
Q: In a civil case, the defendant discovered that the counsel for the plaintiff used to be a member of the Judicial and Bar Council during whose time the Judge presiding over the case was appointed and confirmed. He filed a “Motion to Inhibit the Judge” on the ground that the latter’s ability to act independently and judiciously had been compromised and seriously impaired because of his
P a g e | 29 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) “utang na loob” to the plaintiff’s counsel. If you were the judge, how would you rule on the Motion? (1994) A: I will deny the Motion for Inhibition because every judge is sworn to uphold the decisions of cases in accordance with the law. The fact that the judge was recommended by the JBC which has seven (7) members and deliberated even confidentially does not make the judge morally indebted to the JBC member who may not even have voted for him. Q: Judge Segotier is a member of Phi Nu Phi Fraternity. Atty. Nonato filed a motion to disqualify Judge Segotier on the ground that the counsel for the opposing party is also a member of the Phi Nu Phi Fraternity. Judge Segotier denied the motion. Comment on his ruling. (2005) A: The ruling of Judge Segotier is correct. The fact that a judge is a former classmate of one of the counsels in a case has been held to be insufficient ground for the disqualification of the judge (Vda. De Bonifacio vs. B.L.T. Bus Co., Inc. 34 SCRA, 618 [1970]). Intimacy or friendship between judge and an attorney of record has also been held to be insufficient ground for the former’s disqualification (Masadao & Elizaga, Re Criminal Case No. 4954-M, 155 SCRA 72 [1987]). Q: During the hearing of an election protest filed by his brother, Judge E sat in the area reserved for the public, not besides his brother’s lawyer. Judge E’s brother won the election the protest. Y, defeated candidate for mayor, filed an administrative case against Judge E for employing influence and pressure on the judge who heard and decided the election protest. Judge E explained that the main reasons why he was there in the courtroom were because he wanted to observe how election protests are conducted as he has never conducted one and because he wanted to give moral support to his brother. Did Judge E commit an act of impropriety as a member of the judiciary? Explain. (2007) A: Judge E commited an act of impropriety in appearing in another court at the hearing of his brother’s election protest. In the case of Vidal v. Dojillo, Jr., (463 SCRA 264 [2005]), which involved the same facts, the Supreme Court as follows: “Respondent, in his defense, stated that he attended the hearing of his brother’s election protest case just to give moral support and, in the process, also observe how election protest proceedings are conducted. Although concern for family members is deeply ingrained in the Filipino culture, respondent, being a judge, should bear in the mind that he is also called upon to serve the higher interest of preserving the integrity of the entire judiciary. Canon 2 of the Code of Judicial Conduct requires a judge to avoid not only
impropriety but also the mere appearance of impropriety in all activities. Even if respondent did not intend to use his position as a judge to influence the outcome of his brother’s election protest, it cannot be denied that his presence in the courtroom during the hearing of his brother’s case would immediately give cause for the community to suspect that his being a colleague in the judiciary would influence the judge trying the case to favor his brother.” Q: X, a Municipal Trial Court Judge, received the amount of One thousand (P1, 000.00) Pesos in cash from accused charged with slightly physical injuries in his court, whereupon he was released from custody. After dismissal of the case against him, the accused sought to withdraw the amount he had deposited as bail. It was not returned at once to the accused because according to the Judge, it was stolen from the drawer of his table where he kept it after receipt. Nonetheless, the amount was returned to the accused. Is the Judge guilty of misconduct for which he may be disciplined? (1999) A: Yes. The judge is guilty of misconduct and maybe disciplined. He was negligent in keeping the money in his drawer instead of depositing it with the municipal treasurer as required by law. His failure to return it at once after acquittal of the accused creates a suspicion that he misappropriated the money. A judge should avoid impropriety and the appearance of impropriety in all his activities (Canon 2, Code of Judicial Conduct) Q: Judge Silva upon seeing a reckless tricycle driver almost hitting a boy by the side of the road, gave chase and stopped the tricycle. Judge Silva then confiscated the driver’s license and told him to get it from his office. Was the conduct of Judge Silva proper? (1998) A: The facts are akin to those in Paguirigan v. Clavano (61 SCRA 411 [1074]), where the Supreme Court held: While respondent might have been motivated by a spirit of civicism in cooperating with the city authorities in the enforcement of traffic laws, it is obvious that the investigation of violations of traffic rules and regulations, the arrest of errant motor vehicle drivers and the confiscation of their licenses are essentially police functions which are specifically vested by law upon law enforcement officers of the government. Respondent as Judge of the City Court will necessarily hear and decide all cases filed in his court regarding such violations and infractions of the Motor Vehicle Law or traffic regulations by the law enforcement officers. It is patent, therefore, that respondent should not have taken upon himself the responsibility of confiscating the license of the motor cab driver but he should have referred the matter to the police. We deem it relevant to emphasize that the official conduct of a
P a g e | 30 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) judge should be free from impropriety or any appearance thereof. His personal behavior in the performance of his official duties and in his everyday life should be beyond reproach. By confiscating the driver’s license without issuing any Traffic Violation Report (TVR) and losing the same while in his possession, respondent Judge has acted in a manner unbefitting his high judicial office. Q: A judge was seen having lunch with a litigant in a case pending before him in court. He was also seen at the racetrack placing his bet on certain horses. How would you evaluate the behavior of the judge? Explain. (1990) A: The judge’s behavior is highly improper. Canon 2 of the Code of Judicial Conduct requires that a judge should avoid impropriety and the appearance of impropriety in all activities. Rule 2.01 of the same Code provides that a judge should so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary. His having lunch with a litigant with a case pending before him in court violates such rule and gives the adverse party cause to complain against his impartiality. His going to the racetrack to place bets on certain horses puts the judiciary personified by him in a bad light. For the personal behavior of a judge, not only upon the bench but also in everyday life, should be above reproach and free from the appearance of impropriety. His judicial office circumscribes his personal conduct and imposes a number of restrictions, which he must observe faithfully as the price he has to pay for accepting and occupying an exalted position in the administration of justice. Q: Discuss the propriety of a judge standing as sponsor at the wedding of the son of the litigant in his court? (1990) A: For reasons above stated, a judge’s standing as sponsor at the wedding of the son of a litigant in his court is highly improper for it gives the impression, rightly or wrongly, that he is disposed to resolve the case in favor of such litigant. Public confidence in the impartiality of the judge is eroded, and the due administration of justice suffers thereby. It is also a violation of the letter and spirit of Rule 2.03 of the Code of Judicial Conduct which states that the prestige of judicial office shall not be used or lent to advance the private interests of others, nor convey or permit others to convey the impressions that they are in a special position to influence the judge. Q: Judge A went to Hong Kong on vacation on board a Philippine Airlines plane and they (sic) stayed in a first class hotel for three days and three nights. The round trip ticket Manila-Hong KongManila 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? (1999) A: 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 the same Code provides that a judge 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 refrain from influencing in any manner the outcome litigation or dispute pending before another court administrative agency (Rule 2.04, Code of Judicial Conduct). Q: At the pre-trial of a civil case for collection, one of the parties mentioned that he expected to settle his obligation as he was investing in some stocks of a realty corporation that were sure to soar in the market because of some confidential information he obtain from his brother-in-law, a top-rank officer of the corporation. Upon hearing the information the judge lost no time in buying stocks in the realty corporation and as predicted made a lot of money. Is the judge guilty of unethical conduct? Discuss fully. (1995) A: Yes. Rule 5.05 of the Code of Judicial Conduct provides that “No information acquired in a judicial capacity shall be used or disclosed by a judge in any financial dealing or for any other purpose not related to judicial activities.” The judge in this case has violated the forgoing rule, and acted unethically. Q: Justice AR of the Sandiganbayan was named executor of the will of his good friend BT whose estate is valued approximately at Two Billion (P2,000,000,000.00) Pesos. Upon BT’S death, may Justice AR accept the trust and serve as executors of BT’s Will while still in office? (1999) A: No, he may not. Rule 5.06 of the Code of Judicial Conduct provides that a judge shall not serve as the executor, administrator, trustee, guardian, or other fiduciary except for the estate, trust, or person of a member of the immediate family, and then only if such service will not interfere with the proper performance of judicial duties. Members of immediate family shall be limited to the spouse and relatives within the second degree of consanguinity.
P a g e | 31 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) Q: In an intestate estate proceeding a petition for the issuance of letters of administration in favor of an RTC judge was filed by one of the heirs. Another heir opposed the petition on the ground that the judge was disqualified to become administrator of the estate as he was the first cousin of the deceased. The petitioner however argued that the judge was not disqualified as the case was not pending before him. Rule on the petition. Discuss fully. (1995) A: Rule 5.06 of the Code of Judicial Conduct provides that “ A judge should not serve as the executor, administrator, trustee, guardian, or other fiduciary, except for the estate, trust or person of a member of the immediate family, and then only if such service will not interfere with the proper performance of judicial duties. Members of immediate family’ shall be limited to the spouse and relatives within the second degree of consanguinity”. Under the forgoing rule, the petition should be denied. The judge should not be appointed administrator of the estate of his first cousin, who is not a relative within the second degree of consanguinity. Q: Judge Horacio would usually go to the cockpits on Saturdays for relaxation, as the owner of the cockpit is a friend of his. He also goes to the casino once a week to accompany his wife who loves to play the slot machines. Because of this, Judge Horacio was administratively charged. When asked to explain, he said that although he goes to these places, he only watches and does not place any bets. (2005) A: The explanation of Judge Horacio is not tenable. In the case of City of Tagbilaran vs. Hontanosas, Jr., 375 SCRA 1[2002], the Supreme Court penalized a city court judge for going to gambling casinos and cockpits on weekends. According to the Court, going to a casino violates Circular No. 4, dated August 27,1980, which enjoins judges of inferior courts from playing or being present in gambling casinos. The prohibition refers to both actual gambling and mere presence in gambling casinos. A judge’s personal behavior, not only in the performance of judicial duties, but also in his everyday life, should be beyond reproach. With regard to going to cockpits, the Supreme Court held that “verily, it is plainly despicable to see a judge inside a cockpit and more so, to see him bet therein. Mixing with the crowd cockfighting enthusiasts and bettors is unbecoming of a judge and undoubtedly impairs the respect due him. Ultimately, the Judiciary suffers therefrom because a judge is a visible representation of the Judiciary” (City of Tagbilaran v. Hantonosas, Jr.,ibid ar p. 8) Q: Judge Roman Pulido, an incumbent RTC judge, ran for President of the Rotary Club of Bacolor and won. His first project was to put up a livelihood
center to help the lahar victims. To raise funds he sent to the business community solicitation letters for contributions. His rival in their club filed an administrative charge against Judge Pulido alleging unethical conduct for socializing and being actively involved in an organization the members of which are mostly practicing lawyers, and for soliciting contributions. Are the grounds raised valid for the charge of unethical conduct? Discuss fully. (1995) A: Rules 5.01, Canon 5, of the Code of Judicial Conduct provides that; “Rule 5.01. A judge may engage in the following activities provided that they do not interfere with the performance of judicial duties or detract from the dignity of the court: x x x x (c) participate in civil and charitable activities; (d) serve as an officer, director, trustee, or non-legal adviser of a non-political, educational, religious, charitable, fraternal, or civic organization”. A judge is not required to live in seclusion. However, Section 24, Code of Judicial Ethics provides that a judge should avoid giving ground for reasonable suspicion that he is utilizing the power or prestige of his office to persuade or coerce others to patronize or contribute to charitable enterprises. Hence, while it is ethical for Judge Pulido to become president of Rotary Club of Bacolor, it would be unethical for him to send letters soliciting contributions from the business community. Q: As the guest speaker in Rotary Club weekly luncheon meeting, Judge P was asked during the open forum what might his personal opinion be on PIRMA’s move to initiate a people’s initiative to amend the Constitution. He expressed the view that PIRMA’s crusade should be allowed because it would be in consonance with the declaration in the Constitution that “sovereignty resides in the people and all government authority emanates from them.” He likewise enjoined the members to support PIRMA. An administrative complaint was filed against him by a club member, a staunch oppositor to the PIRMA petition before the COMELEC, alleging that the judge’s public statement had constituted conduct unbecoming a judge. Judge P’s answer to the complaint was that membership in the judiciary did not deprive him of his right to free speech, that he was entitled to express his view even on political issues, and that any issue requiring resolution on the PIRMA petition was outside the jurisdiction of Regional Trial Courts. Was there a breach of the Code of Judicial conduct by Judge P? (1997) A: Yes, there is a breach. Rule 5.10 of the Code of Judicial Conduct provides that a judge is entitled to entertain personal views on political questions. But to avoid suspicion of political partisanship, a judge shall not make political speeches, contribute to party
P a g e | 32 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1990-2007) funds, publicly endorse candidates for political office or participate in other partisan political activities. Since Judge P considered the PIRMA petition to be a political issue, he should have refrained from making his speech and enjoining his listeners to support PIRMA because he might be suspected (of) engaging in partisan political activity. Q: B, who was given no more than six (6) months to live by her physician, requested her cousin Judge A to introduce her to Judge C before whose sala she has a case submitted for resolution. B would wish to have the case decided before her expected demise. Judge A, who personally knows Judge C, accompanied B to the latter, introduced her as his cousin, and explained that all that B wants is for her case to be expeditiously resolved, without, in any way, suggesting in whose favor it should be decided. Comment on the conduct of Judge A. (2003) A: The conduct of Judge A may be considered unethical. Rule 2.04 of the Code of Judicial Conduct provides that “a judge shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court or administrative agency.” Although Judge A did not suggest to Judge C in whose favor the case should be decided, the fact that he introduced B as his cousin is enough suggestion as to how the case should be decided. Canon 2 of the Code of Judicial Conduct explicitly provides that “a judge should avoid impropriety and appearance of impropriety in all activities. Q: In the contract of lease of the house and lot located in Quezon City that A entered into with B, it is stipulated that if at the end of the lease term, the lessee B should refuse and fail to vacate the premises and the parties fail to agree on the extension of the lease period, the case for eviction should be filed with the Regional Trial Court in Manila, as agreed upon. The judge of the Regional Trial Court to whom the case was assigned motu proprio dismissed the case for lack of jurisdiction. Plaintiff A and defendant B presented separate motions urging the Court to reconsider its order and jurisdiction of their case by mutual agreement. The Judge denied their motion insisting that his Court has no jurisdiction over the case for detainer. May the Regional Trial Court upon the facts of the case assume jurisdiction of it as suggested by the parties? (1999) A: No, the Regional Trial Court may not assume jurisdiction. Jurisdiction over subject matter is conferred by the law and not by agreement of the parties. While rule 3.13 of the Code of Judicial Conduct provides for the Remittal of Disqualification of judges, it refers to remittal of the disqualification of the judge to take part in the case on the ground that his impartiality may be placed in doubt. It is not applicable to lack of jurisdiction.
Q: A complaint for rape against ZZ was filed by the father of Dulce, an 11- year old girl, of the Municipal Trial Court of Bantayan, Cebu. After preliminary examination of the offended party and witnesses, Judge YY of said court issued an order finding probable cause and ordering to arrest ZZ without bail. ZZ was arrested and detained. He filed: (1) a Waiver of Preliminary Investigation, and (2), an Ex parte Motion to Fix Bail Bond, Judge YY granted the waiver and forthwith elevated the records of the case to the RTC, which forwarded the same to the Office of Provincial Prosecutor. Ten (10) days after the elevation of the records, YY, acting on the Motion To Fix Bail, issued an order fixing the bail bond at P20, 000.00. The father of Dulce filed against YY an administrative complaint for ignorance of the law, oppression grave abuse of discretion and partiality. If you were the judge of the RTC designated to investigate the case and to make a report and recommendation thereon, what would be your recommendation? (1991) A: The fact narrated in this case is similar to the decision of the Supreme Court in 1989. The judge was found guilty of ignorance of the law for granting bail despite the fact that he had already lost jurisdiction after elevating the record of the case to the Regional Trial Court. If I am the RTC Judge assigned to investigate the case I would recommend the dismissal of the judge for gross ignorance of the law. Q: A judge, in order to ease his clogged docket, would exert efforts to compel the accused in criminal cases to plead guilty to lesser offense and advise party litigants in civil cases whose positions appear weak, to accept the compromise offered by opposing party. Is the practice legally acceptable? (1998) A: The practice is legally acceptable as long as the Judge does not exert pressure on the parties and takes care that he does not appear to have prejudged the case. Where a judge has told the party that his case is weak before the latter was fully heard, such was considered as a ground for his disqualification (Castillo v. Juan, 62 SCRA 124). Q: The Code of Professional Responsibility is to lawyers, as the Code of Judicial Conduct is to members of the bench. How would you characterize the relationship between a judge and a lawyer? Explain. (1996) A: The Code of Professional Responsibility requires lawyers to observed and maintain respect for the Judicial Officers (Canon 11). On the other hand, the Code of Judicial Conduct requires judges to be patient, attentive and courteous to lawyers (Rule 3.03). In a word, lawyers and judges owe each other mutual respect and courtesy.
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Q: 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 positing 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 court’s order, claiming that it was violative of their client’s 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. (2004) A: The Judge did not violate the right of the accused to a public trial. A trial is public “when anyone interested in observing the manner a judge conducts the proceedings in his courtroom may do so” (Garcia v. 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”. Q: Did the Judge act the 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. (2004) A: No. Press freedom was never transgressed. The serious risks posed to the fair administration of justice by live TV and radio broadcast, especially when emotions are running high on the issues stirred by the case, should be taken into consideration before addressing the issue not of press freedom. The right of the accused to a fair trial, not by a trial by publicity takes precedence over press freedom as invoked by the TV reporters in this case (Sec. Perez v. Estrada, 365 SCRA 62, [2001]). Q: While Miss Malumanay, a witness for the plaintiff, was under cross-examination, Judge Mausisa asked questions alternately with the counsel for the defendant. After four questions by the judge, the plaintiff’s counsel moved the judge refrain from asking further questions which tended to favor the defense and leave the examination of the witness to the defendant’s counsel, who was a new lawyer. The judge explained that he was entitled to ask searching questions. Is the motion tenable? Why? (2002) 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. Q: Can the judge justify his intervention? How? (2002) A: 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. Q: In a murder trial, Judge T asked searching questions of all the witnesses for the accused prompting Atty. O, counsel the accused, to request Judge T to desist from acting as counsel for the prosecution. The Judge, However, reminded Atty. O that she wanted to determine whether the accused was guilty of the crime charged. Is it proper for Judge T to take an active part on the examination of the accused’s witnesses? (1996) A: No, it is not proper. Rule 3.06 of the Code of Judicial conduct provides that “While a judge may, to promote justice, prevent waste of time or clear up some obscurity, properly intervene in the presentation of evidence during the trial, it should always be borne in mind that undue interference may prevent the proper presentation of the cause or the ascertainment of truth.” The intervention of the judge in a case must be done with considerable circumspection. It must be done sparingly and not throughout the trial, which will have the effect of or will tend to build or bolster the case for one of the parties. The reason for this rule is that the judge should not only be impartial but also appear to be impartial.
