2007 bar questions and suggested answers (LEGAL ETHICS AND PRACTICAL EXERCISES)

Legal Ethics and Practical Exercises

- I -
(10%)

What are the duties of an attorney?
Per the Attorney’s Oath:
1. To maintain allegiance to the Republic of the Philippines;

2. To support its Constitution;

3. To obey the laws as well as the legal orders of the duly constituted authorities therein;

4. To do no falsehood, nor consent to the doing of any in court;

5. To avoid wittingly or unwittingly promoting or suing any groundless, false or unlawful suit, nor give aid or consent to the same;

6. To delay no man for money or malice;

7. To conduct himself as a lawyer according to the bets of his knowledge and discretion with all good fidelity well to the courts as to his clients

Per Section 20, Rule 138 of the Rules of Court:
To maintain the allegiance to the Republic of the Philippines;

To maintain the respect due to the courts of justice and judicial officers;

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;

To employ, for the purposes of maintaining the causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law;

To maintain inviolate the confidence, and at every peril to himself, to preserve the secret of his client, and to accept no compensation in connection with his client’s business except from him with his knowledge and approval;

To abstain from all offensive personality, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged;

Not to encourage either the commencement or the continuance of an action or proceeding, or delay any man’s cause from any corrupt motive or interest;

Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed;

In the defense of a person accused of crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits, to the end that no person may be deprived of life or liberty, but by due process of law.

Per the Code of Professional Responsibility:
Duties to society in general – to uphold the Constitution, obey the laws of the land and promote respect for the law and legal processes;

Duties to the legal profession – to uphold the dignity and integrity of the legal profession;

Duties to the court – to be candid with and promote respect for the courts and judicial officers, and to assist the courts in rendering speedy and efficient justice; and

Duties to the client – to observe candor, fairness and loyalty to the client; hold the client’s money and property in trust, serve the client with competence and diligence, always mindful of the trust and confidence reposed by the client in him;

N.B. It should be sufficient that the answer contain either the attorney’s oath, the duties of an attorney under Section 20, Rule 138 of the Rules of Court, or the duties under the Code of Professional Responsibility, as any of these provisions sufficiently state the statutory basis of an attorney’s duties.

- II -
(10%)

C engages 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 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 titltes registered in his name. Did attorney D violate the Code of Professional Responsibility? Explain.

The decision of the Supreme Court in the case of Hernandez v. Go, A.C. 1526, January 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 and 17 of the Code of Professional Responsibility, which provide as follows:
Canon 16. A lawyer shall hold in trust all moneys and properties of his client that may come into his possession.

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.

When attorney D acquired the properties of his client, he did not only violate these canons but also Article 1491 of the Civil Code, which prohibits him to acquire by purchase even at a public auction or judicial auction, property of his clients the sale of which has been entrusted to him unless the consent of the client has been given.

- III -
(10%)

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 advese 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 demurer 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 events 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 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 approach 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 prosper? Give reasons for your answer.

Yes. Lawyer M appears negligent because of his failure to file an opposition to the demurrer, appear at the demurrer hearing, and not filing a motion for reconsideration. Under the Code, a lawyer shall not handle any legal matter without adequate preparation (18.02). He shall not neglect a legal matter entrusted to him and his negligence renders him liable (18.03). Canon 18 provides that the lawyer shall serve his client with competence and diligence. Thus, the voluminous record is no justification for the failure of Attorney M to file an opposition to the demurrer to evidence or failing to attend the hearing thereof.

Giving the motion for reconsideration to the friends of N for filing is another instance of negligence on the part of Atty. M. He should have filed his motion himself. (Francisco v. Portugal, A.C. No. 6155, March 14, 2006) Atty. M also 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.” Furthermore, refusing to comply with N’s request to withdraw from the case violated the absolute right of the client to terminate his lawyer at any time with or without cause. (Section 26, Rule 138 of the Rules of Court)

- IV -
(10%)

When is recovery of attorney's fees based on quantum meruit allowed?
The recovery of attorney’s fees on quantum meruit is allowed in the following circumstances:

When there is no agreement as to attorney’s fees.

When the agreement as to attorney’s fees is invalid for some reason other than the illegality of the object of the performance.

When the attorney and the client disregard the contract for attorney’s fees.

When the amount of the attorney’s fees is found to be unconscionable (Section 24, Rule 138 of the Rules of Court).

Where the stipulated fees are in excess of what is expressly fixed by law.

- V -
(10%)

During the hearing of an election protest filed by his brother, Judge E sat in the area reserved for the public, not beside his brother's lawyer. Judge E's brother won the election protest. Y, the 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 protest 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?

Judge E committed an act of impropriety by appearing in another court at the hearing of his brother’s election protest. In the case of Vidal v. Dojillo, Jr., A.M. No. MTJ-05-1591, July 14, 2005, which involved the same facts, the Supreme Court held as follows:

“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.”

- VI -
( 10%)

a. A and B are accused of Estafa by C, the wife of Regional Trial Court Judge D. Judge D testified as a witness for the prosecution in the Estafa case. Did Judge D commit an act of impropriety? Give reasons for your answer. (5%)

If Judge D is a material witness to the offense being prosecuted, he should testify and his action cannot be considered improper. However, if his testimony can be dispensed with, being corroborative in nature, Judge D should refrain from testifying as it may be viewed as a subtle attempt to influence the outcome of the case. He should refrain from influencing in any manner the outcome of litigation or dispute pending before another court or agency. (Canon 1.03, New Code of Judicial Conduct)

b. What qualities should an ideal judge possess under the New Code of Judicial Conduct for the Philippine Judiciary? (5%)

Qualities of an ideal judge under the New Code of Judicial Conduct are:
1. Independence (Canon 1);
2. Integrity (Canon 2);
3. Impartiality (Canon 3);
4. Propriety (Canon 4); and
5. Competence and Diligence (Canon 5)

- VII -
(10%)

a. What evidence of identity does the 2004 Rules on Notarial Practice require before a notary public can officially affix his notarial seal on and sign a document presented by an individual whom the notary public does not personally know? (5%)

Section 12, Rule II of the 2004 Rules on Notarial Practice defined competent evidence of identity as referring to any of the following identification of an individual:
(a) at least one current identification document issued by an official agency bearing the photograph and signature of the individual; or

(b) the oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification.

b. When can Judges of the Municipal Trial Courts (MTC) and Municipal Circuit Trial Courts (MCTC) perform the function of notaries public ex officio, even if the notarization of the documents are not in connection with the exercise of their official function and duties? (5%)

MTC and MCTC judges assigned to municipalities or circuits with no lawyers or notaries public may, in the capacity as notaries public ex-officio, perform any act within the competency of a regular notary public, provided that: (1) all notarial fees charged be made for the account of the Government and turned over to the municipal treasurer (Tabao v. Asis, A.M. No. RTJ-95-1330, January 30, 1996; Lapena, Jr. v. Marcos, A.M. No. 1969-MJ, June 29, 1982); and (2) certification be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit. (Doughlas v. Lopez, Jr., A.M. No. MTJ-96-1076, February 9, 2000; Gravela v. Villanueva, A.M. No. 02-1414-MTJ, January 28, 2003)

- VIII -
(10%)

Prepare a clause stipulating a right of first refusal to be embodied in a contract of lease, in case of sale of the property leased.

Right of First Refusal. A right of first refusal is granted to the lessee in case lessor intends to sell the leased property. Lessee shall be given priority to buy the property or match the offer of any potential buyer within a period agreed upon by the parties. Should the Lessee fail or refuse to purchase the leased property, the Lessor shall be free to sell the property at a price not lower than that offered to the Lessee.

- IX -
(10%)

Prepare an affidavit of merits to be attached to a Petition for Relief.

Affidavit of merit should state:
Fraud, accident, mistake or excusable negligence preventing the filing of answer or appearing in pre-trial or trial; and Valid and substantial cause of action or defense (Section 3, Rule 138 of the Rules of Court)

REPUBLIC OF THE PHILIPPINES ) S.S.
CITY OF MANILA )
Affidavit of Merit
I, Mr. B, of legal age, single, and a resident of Quezon City, after being duly sworn to, depose and say that:

I am the defendant in the case entitled “A versus B,” docketed as Civil Case No. 1234 of the Regional Trial Court of Manila, Branch 56, for collection of a sum of money;

On July 7, 2007, while on our way to the court to attend the hearing of said case, we figured in a vehicular accident when a truck bumped the taxi cab in which my counsel and I were riding, causing serious physical injuries to my lawyer and myself, necessitating our hospitalization for two months;

Upon out failure to appear, the Honorable Regional Trial Court proceeded with the trial and thereafter rendered judgment against me for the amount of P500,000 with interest from January 10, 2006, plus costs;

Said decision was served on my counsel only on September 15, 2007;

If given the chance to present evidence, I can provide as a valid and substantial defense that the amount being collected from me by the plaintiff has been fully paid as shown by a receipt, a machine copy of which is attached hereto as Annex 1 of this Affidavit; and

I have executed this Affidavit in support of my Petition for Relief from final judgment of the RTC of Manila.

FURTHER, Affiant sayeth naught.

Manila, September 19, 2007.

(Sgd.) B
Affiant

SUBSCRIBE AND SWORN to before me, this 21st day of September 2007, the affiant personally appeared and exhibited to me his Passport No. 345678 issues in Manila on January 12, 2007.

WITNESS MY HAND AND SEAL.

CD
NOTARY PUBLIC
Until December 31, 2007
Commission No.
(Address)
Attorney’s Roll No.________
IBP Membership No._______
PTR O.R. No. ______Manila,
01/0/07

Doc. No.____
Page No. ___
Book No.____
Series of 2007

- X -
(10%)

Prepare an arbitration clause to be included in a contract.

Any dispute between parties arising from contract should first be referred to an arbitration panel of three members before resorting to court action, one member each to be designated by the parties and third member chosen by the two. Any decision of the Arbitration Committee shall be final, enforceable and binding on the parties.

NOTHING FOLLOWS.