LEGAL ETHICS
Q: Evelyn, Luisa. Myra, Josefina, Pamela and
Q: What do you understand by Legal Ethics?
Discuss its importance and state its sources.
A: Legal ethics is that branch of moral science which treats
of the duties that an attorney owes to the court, to his
client, to his colleagues, in the profession, and to society.
The sources of legal ethics are the Constitution, the Rules
of Court, some particular provisions of statutes, the Code
of Professional
Responsibility and Judicial decisions.
Legal ethics is important in order to maintain a high moral
standard for the lawyer in performing his duties as an
officer of the court, his duties to his client, to the members
of the legal profession as well as to society. Lawyers wield
so much power and influence in society. Unless their acts
are regulated by high norms of ethical conduct they are
likely to abuse them.
PRACTICE OF LAW (RULE 138)
Definition of the practice of law
Q: Atty. Yabang was suspended as a member of the Bar
for period of one (1) year. During the period of
suspension, he was permitted by his law firm to
continue working in their office, drafting and
preparing pleadings and other legal documents, but
was not allowed to come into direct contact with the
firms’ clients. Atty. Yabang was subsequently sued for
illegal practice of law. Would the case
prosper? Explain. (2005 Bar)
A:The Supreme Court has defined the practice of law as
any activity in or out of court, which requires the
application of law, legal principle, practice or procedure
and calls for legal knowledge, training and experience
(Cayetano vs. Monsod, 201 SCRA 210 [1991]). Based on this
definition, the acts of Atty. Yabang of preparing pleadings
and other legal documents would constitute practice of
law. More so, if his activities are for the benefit of his law
firm, because the employment of a law firm is the
employment of all the members thereof. The case against
him will prosper.
ALTERNATIVE ANSWER:
The traditional concept of practice of law requires the
existence of a lawyer-client relationship as a requisite.
Pursuant to this concept, inasmuch as Atty. Yabang was
not allowed by his law firm to come into direct contact
with the firm’s clients during the period of his suspension,
he cannot be considered as having engaged in illegal
practice of law. . The case against him will not prosper.
Rose are bona fide members of the
Philippine bar. They agree to form a close corporation
to be named LEGALCARE the principal purpose of
which is “to provide clients legal services, research
and advice as well as trial advocacy for a fee." The
services shall be rendered not only by these
enterprising pioneers of LEGALCARE but also by
lawyers to be employed by the projected corporation
on regular monthly salary basis.
May LEGALCARE be legally incorporated?
Discuss fully. (1995 Bar)
A:A corporation cannot engage in the practice of law even
by hiring lawyers to perform legal work. It has been held
that only a natural person can engage in the practice of
law. A lawyer is burdened with peculiar duties and
responsibilities. A corporation cannot take an oath of
office, be an officer of the court or subjected to court
discipline: it cannot engage in law practice directly, it
cannot evade the requirements by employing competent
lawyers to practice for it (Matter of Cooperative Law Co.,
N.Y. 579). Hence, LEGALCARE cannot be legally
incorporated because the principal purpose involves the
practice of law.
Practice of law is a privilege, not a right
Q: Is the practice oflaw a right or a privilege? Discuss
fully. (1995 Bar)
A:The practice of law is basically a privilege because it is
limited to persons of good moral character with special
qualifications duly ascertained and certified (5 Am. Jur.
270). Thus, only those persons are allowed to practice law,
who by reason of attainments previously acquired through
education and study, have been recognized by the courts
as possessing profound knowledge of legal science.
Attorneys are the court’s constituency - to aid it in the
administration of justice (Dodge v. State, 38 NE 745).
Law as a profession, not a business or trade
Q: Why is law a profession and not a trade?
(2006 Bar)
A: Law is a profession and not a trade because its basic
ideal is to render public service and secure justice for
those who seek its aid. The gaining of a livelihood is only a
secondary consideration.
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
per cent lower than those proposed by the other firm,
you will get the company's legal business. How would
you react to the suggestion? (1997 Bar)
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: As a new lawyer, Attorney Novato started with a
practice limited to small claims cases, legal
counseling, and notarization of documents. He put up
a solo practice law office and was assisted by his wife
who served as his secretary/helper. He used a
makeshift hut in a vacant lot near the local courts and
a local transport regulatory agency. With this strategic
location, he enjoyed heavy patronage assisting walk-
in clients in the preparation and filing of pleadings
and in the preparation and notarization of contracts
and documents, and charges a reasonable fee for the
service. He draws electric power from an extension
wire connected to an adjoining small restaurant. He
put up a shingle that reads: “Atty. Novato, Specialist in
Small Claims, Fastest in Notarization; the Be stand
Cheapest in Copier Services.”
Is Atty. Novato’s manner of carrying out his
professional practice –i.e., mixing business with the
practice of law, announcing his activities via a shingle
and locating his office as above-described – in keeping
with appropriate ethical and professional
practice? (2013 Bar)
A: No. Atty. Novato’s manner of carrying out his
professional practice is not in keeping with appropriate
ethical and professional practice. He has degraded the law
profession, which may result to loss of respect to lawyers
as a whole.
The use of a makeshift hut standing alone would create the
impression that the lawyer does not have a permanent
address which is required to be stated in all pleadings he
signs as well as required to be shown in documents he
notarizes.
His shingle shows that he has considered the law
profession as a business. He should have a separate
shingle for his copier services business.
When he included in his shingle the phrases “Specialist in
Small Claims” and “Fastest in Notarization,”he has
1 transgressed the rule that a lawyer in making known his
legal services shall use only dignified information or
statement of facts (Code of Professional Responsibility,
Canon 3). So also the norm that a lawyer shall not use or
permit the use of any misleading, undignified, self-
laudatory or unfair statement or claim regarding his
qualifications or legal services (Ibid., Canon 3, Rule 3.01).
The use of the phrases “Specialist in Small Claims”and
“Fastest in Notarization”is misleading advertisement
because they are likely to create an unjustified expectation
about the results the lawyer can achieve or implies that
the lawyer can achieve results by improper means (ABA
Model Rule 7.1.b).
Q: Cite some of the characteristics of the legal
profession which distinguish it from business. (2015
Bar)
A: The primary characteristics which distinguish the legal
profession from a business are:
1. a duty of public service of which emolument is a by-
product and in which one may attain the highest
eminence without making much money;
2. a relation as officer of the court to the administration
of justice involving thorough sincerity, integrity and
reliability;
3. a relation to client in the highest degree fiduciary;
4. A relation to colleagues characterized by candor,
fairness and unwillingness to resort to current
business methods of advertising and encroachment on
their, or dealing directly with their clients (In Re Sycip,
92 SCRA 1).
Qualifications for admission to the Bar
Q: Upon learning from newspaper reports that bar
candidate Vic Pugote passed the bar examinations.
Miss Adorable immediately lodged a complaint with
the Supreme Court, praying that Vic Pugote be
disallowed from taking the oath as a member of the
Philippine Bar because he was maintaining illicit
sexual relations with several women other than his
lawfully wedded spouse. However, from unexplained
reasons, he succeeded to take his oath as a lawyer.
Later, when confronted with Miss 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? Explain briefly. (2004 Bar)
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: Miguel Jactar, a fourth year law student, drove his
vehicle recklessly and hit the rear bumper of
SimplicioMedroso’s vehicle. Instead of stopping, Jactar
accelerated and sped away. Medroso pursued Jactar
and caught up with him at an intersection.
In their confrontation, Jactar dared Medroso to sue,
bragged about his connections with the courts, and
even uttered veiled threats against Medroso. During
the police investigation that followed, Medroso
learned that Jactar was reviewing for the Bar
examinations.
Under these facts, list and justify the potential
objections that can be made against Jactar’s admission
to the practice of law. (2013 Bar)
A: The potential objection that can be made against
Jactar’s admission to the practice of law is the absence of
good moral character (Rules of Court, Rule 138, Sec. 2).
Jactar’s bragging about his connection with the courts and
uttering veiled threats against Medroso are indications of
his lack of good moral character. His acts are contrary to
justice, honesty, modesty or good morals (In Re Basa, 41
Phil. 276). He has acted in a manner that has violated the
private and social duties which a man owes to his
fellowmen, or to society in general, contrary to the
accepted and customary rule of right and duty between
man and man (Tak Ng v. Republic, G.R. No. L-13017, 106
Phil. 730, December 23, 1959).
NOTE: Any answer which explains the nature of absence
of good moral character should be given full credit.
The following additional objection should not result to a
deduction nor should an absence of the additional
objection also result to a deduction.
a. If light threats would be filed against him, then
another potential objection would be the pendency of
charges against him, involving moral turpitude (Rules
of Court, Rule 138, Sec. 2).
b. The question states, “Under these facts, list and justify
the potential objections that can be made against
Jactar’s admission to the practice of law.”
c. The question requires that an assumption be made
that Jactar has passed the Bar Examination and is
about to take his oath as an attorney. It is suggested
that the better question should have been: “Under
these facts, list and justify the potential objections that
can be made against Jactar’s being admitted to take
the Bar
Examination.”
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
Bar)
A: Rule 7.01 of the Code of Professional Responsibility
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. When the applicant concealed a charge of
a crime against him but which crime does not involve
moral turpitude, this concealment nevertheless will be
taken against him. It is the fact of concealment and not the
commission of the crime itself that makes him morally
unfit to become a lawyer (In Re: Ramon Galang, A.C. No.
1163, August 29, 1975).
Q: Does the legislature have the power to regulate
admission to the bar and the practice of law? Discuss
fully. (1995 Bar)
A: Congress under the 1987 Constitution has no power to
regulate admission to the Bar and the practice of law.
Unlike the 1935 and 1973 Constitutions, the 1987
Constitution no longer provides for the power of the
legislature to repeal, alter and supplement the rules
promulgated by the Supreme Court. Under the 1935
Constitution, the legislature had the power to repeal, alter
the rules promulgated by the Supreme Court although the
power and the responsibility to admit members of the bar
resides in the Supreme Court (In Re: Cunanan, 50 OG
1602). Under the 1987 Constitution however, the Supreme
Court has the exclusive power to promulgate rules
concerning the enforcement of rights, pleadings and
practice and procedures of all courts and the admission to
the practice of law (See Art. 8. Section 5, subpar. 3-5).
1 recognized by the Department of Justice or the
ALTERNATIVE ANSWER:
Agpalo has pointed out that the legislature, in the exercise
of police power, may enact laws regulating the practice of
law to protect the public and promote public welfare, but
it may not pass a law that will control the Supreme Court
in the performance of its function to decide who may be
admitted into the practice of law (Agpalo, Legal Ethics, 5th
Edition, p. 5). Constitutional Commissioner Joaquin C.
Bemas also submits that the matter stays as if the 1935
and 1973 provisions had been re-enacted (Bernas, The
Constitution of the Republic of the Philippines. 1992 ed., Vol.
II. p. 293).
APPEARANCE OF NON-LAWYERS
Law student practice rule (Rule 18-A)
Q: Enumerate the instances when a law student may
appear in court as counsel for
a litigant. (2006 Bar)
A:
a. Under the Student Practice Rule, a law student who
has successfully completed his third year of the
regular four-year prescribed law curriculum and is
enrolled in a recognized law school’s clinical legal
education program approved by the Supreme court,
may appear without compensation in any civil,
criminal or administrative case before any trial court,
tribunal, board or officer, to represent indigent clients
accepted by the legal clinic
of the law school, under the direct supervision and
control of a member of the Integrated Bar of the
Philippines if he appears in a Regional Trial Court, and
without such supervision if he appears in an inferior
court (Bar Matter 730, June 10,
1997);
b. When he appears as an agent or friend of a litigant in
an inferior court (Sec. 34, Rule
138, Revised Rules of Court);
c. When he is authorized by law to appear for the
Government of the Philippines (Sec. 33,
Rule 138, Revised Rules of Court);
d. In remote municipalities where members of the bar
are not available, the judge of an inferior court may
appoint a non-lawyer who is a resident the province
and of good repute for probity and ability, to aid the
defendant in his defense (Sec. 4, Rule 116,
Revised Rules of Court);
e. A law student may appear before the National Labor
Relations Commission or any Labor Arbiter if (a) he
represents himself, as a party to the case, (b) he
represents an organization or its members with
written authorization from them, or (c) he is a duly-
accredited member of any legal aid office duly
Integrated Bar of the Philippines in cases referred to
by the latter (Art. 222, Labor Code;Kanlaon
Construction Enterprises Co., Inc. v. NLRC,
279 SCRA 337 [1997]); and
f. Under the Cadastral Act, a non-lawyer may represent
a claimant before the Cadastral Court (Sec. 8, Act
No.2250).
Q: What is the student practice rule? (2009
Bar)
A: The Student Practice Rule (Rule 138-A) is the Rule
authorizing a law student who has successfully completed
his 3rd year of the regular four-year prescribed law
curriculum and is enrolled in a recognized law school’s
clinical legal education program approved by the Supreme
Court, to appear without compensation in any civil,
criminal or administrative case before any trial court,
tribunal or board or officer, to represent indigent clients
accepted by the legal clinic of the law school, under the
direct supervision and control of a member of the IBP
accredited by the law school.
Non-lawyers in courts
Q: Generally, only those who are members of the bar
can appear in court. Are there
exceptions to this rule? Explain (1996 Bar)
A: The exceptions to the rule that only those who are
members of the bar can appear in court are the following:
a. In the municipal trial court, a party may conduct his
litigation in person or with the aid of an agent or
friend (Sec. 34. Rule 138).
b. In any other court, a party may conduct his litigation
personally (Id.)
c. In criminal proceedings before a municipal trial court
in a locality where a duly licensed member of the bar
is not available, the court may in its discretion admit
or assign a person, resident of the province and of
good repute for probity and ability, to aid the
defendant in his defense, although the person so
assigned is not a duly authorized member of the bar
(Sec. 4. Rule 116).
d. Any official or other person appointed or designated
in accordance with law to appear for the Government
of the
Philippines shall have all the rights of a duly
authorized member of the bar to appear in any case in
which said government has an interest direct or
indirect (Sec. 33. Rule 138).
e. A senior law student who is enrolled in a recognized
law school’s clinical education program approved by
the Supreme Court may appear before any court
without compensation to represent indigent clients
accepted by the Legal Clinic of the law school (Rule
138-A).
f. Non-lawyers may appear before the NLRC or any
Labor Arbiter if they represent themselves or their
labor organization or members thereof (Art. 222,
Labor Code).
g. Under the Cadastral Act, a non-lawyer can rep-resent
a claimant before the Cadastral Court (Sec. 9. Act.
2259).
Q: A, a mere high school graduate, with the aid of a
friend who is a college undergraduate, filed a
complaint for recovery of a sum of money in the
amount of Four Thousand (P4, 000.00) Pesos in the
Metropolitan Trial Court of his town. The Clerk of
Court told A that his complaint might be dismissed for
insufficiency as to form because neither he nor his
friend who is assisting him is a lawyer. Is the Clerk of
Court correct? (1999 Bar)
A: The Clerk of Court is not correct. In the Justice of the
Peace courts (now known as Municipal Trial Court or
Municipal Circuit Trial Courts or Metropolitan Trial
Court), a party may conduct his litigation in person, with
the aid of an agent or friend appointed by him for that
purpose, or with the aid of an attorney (Sec. 34, Rule 138,
Rules of Court).
Q: A, a law graduate but has not passed the bar
examination, filed a Complaint in the Regional Trial
Court for recovery of Fifty Thousand (P50, 000.00)
Pesos owed him by B. At the hearing of the case after
Answer was filed, A appeared by himself alone and
without counsel to prosecute his case. The defendant
pointed out to the Court that A was not a member of
the bar and suggested that for his own protection, A
should engage the services of a counsel duly
accredited as a member of the Bar. The Judge
intimated his willingness to reset the hearing of the
case to another day to enable plaintiff to engage the
services of counsel. Plaintiff replied he could manage
to prosecute his own case, it being but a simple case
for collection of sum of money. If you were the Judge,
will you allow A to continue prosecuting his case by
himself alone?
(1999 Bar)
A: Section 34, Rule 138 of the Rules of Court provides that
in a Regional Trial Court, a party may conduct his litigation
personally or by aid of an attorney, and his appearance
must be either personal or by a duly authorized member
of the bar. Hence, if I were the Judge, I will allow A to
continue prosecuting his case alone, but I will warn him
about the risks involved in his doing so because of his lack
of knowledge of law and legal procedure.
ALTERNATIVE ANSWERS:
a. If I were the Judge, I will not allow A to prosecute his
case. Although he is a law graduate, it does not appear
that he is familiar with procedural law, having filed
the case with the RTC which has no jurisdiction over
the case in view of the amount involved. The judge is
duty bound to see to it that there is no miscarriage of
justice.
b. No. I shall dismiss the case for lack of jurisdiction
because the amount of P50.000.00 is within the
jurisdictional ambit of the Municipal Trial Court.
Consequently, A could not continue prosecuting the
case.
Non-lawyers in administrative tribunals
Q: Raul Catapang, a law graduate and vicepresident for
labor relations of XYZ Labor Union, entered his
appearance as representative of a member of the
union before the Labor Arbiter in a case for illegal
dismissal, unpaid wages and overtime pay. Counsel for
the Company objected to Raul’s appearance and
moved for his disqualification on the ground that he is
not a lawyer. If you were the Labor Arbiter, how would
you resolve the motion? Why? (2002
Bar)
A: I will deny the motion to disqualify Raul. Article 222 of
the Labor Code authorizes nonlawyers to appear before
the National Labor Relations Commission or any Labor
Arbiter in representation of their organization or
members thereof. SANCTIONS FOR PRACTICE
Lawyers without authority
Q:
A. The Supreme Court suspended indefinitely Atty.
Fernandez from the practice of law for gross
immorality. He asked the Municipal Circuit Trial
Court Judge of his town if he can be appointed
counsel de officio for Tony, a childhood friend who
is accused of theft. The judge refused because Atty.
Fernandez’s name appears in the Supreme Court’s
List of Suspended Lawyers. Atty. Fernandez then
inquired if he can appear as a friend for Tony to
defend him. If you were the judge, will you
authorize him to appear in your court as a friend
for Tony?
B. 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 Bar)
A:
A. I will not authorize him to appear as a friend of Tony.
The accused in a criminal case is entitled to be
represented by legal counsel, and only a lawyer can be
appointed as counsel de officio. Although a municipal
trial court may appoint a person of good refute to aid
the accused as counsel de officio in his defense, this is
applicable only where members of the bar are not
present (Sec. 4, Rule 116, Revised Rules of Court).
Necessarily, the friend referred to one who is not a
lawyer. Atty. Fernandez is a lawyer but under
indefinite suspension. He should not be allowed to
practice law even as a counsel de officio.
B. 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.
ALTERNATIVE ANSWERSTO 1 AND 2:
Yes, if Atty. Fernandez was appointed by Tony. Even if
Atty. Fernandez was suspended indefinitely, he may
appear as an. agent or friend of Tony, the party litigant in
the Municipal Trial Court, if Tony appoints him to conduct
his case (Sec. 34, Rule 138, Revised Rules of Court,
Cantimbuhan v. Cruz, Jr., 126 SCRA 190 [1983]).
Q: Atty. E entered his appearance as counsel for
defendant F in a case pending before the Regional Trial
Court. F later complained that he did not authorize
Atty. E to appear for him. F moved that the court
suspend Atty. E from the practice of law. May the judge
grant the motion? Explain. (2000 Bar)
A: The judge may grant the motion. Unauthorized
appearance is a ground for suspension or disbarment (Sec.
27, Rule 138, Rules of Court).
ALTERNATIVE ANSWER:
It depends. A lawyer’s appearance for a party without the
authority of the latter must be willful, corrupt or
contumacious in order that he may be held
administratively liable therefor. But if he has acted in good
faith, the complaint for suspension will fail (Garrido v.
Qutsumbing, 28 SCRA 614 [1969]).
PUBLIC OFFICIALS AND THE PRACTICE OF
LAW
Prohibition or disqualification of former government
attorneys 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 Panowhen he
was still a Prosecutor. Should Atty. de Pano accept
employment as private prosecutor in said estafa case?
Explain. (1992 Bar)
1 A:Atty. de Pano should not accept the employment as
private prosecutor as he will be violating Canon 6, Rule
6.03 of the Code of Professional Responsibility which
provides that a lawyer shall not, after leaving government
service, accept employment in connection with any matter
in which he had intervened while in said service.
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 contended that he
merely appeared at the arraignment on behalf of the
prosecutor assigned to the case who was absent at the
time. Decide. (1991 Bar)
A: Lawyer U should be disqualified from entering his
appearance in this case even only for arraignment of the
accused. His appearance is deemed to be appearing for
conflicting interest.
ALTERNATIVE ANSWER:
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 Tanod-bayan
prosecutor, he certainly had occasion to obtain knowledge
about the prosecution’s evidence.
Public officials who cannot practice law or can
practice law with restrictions
Q:A town mayor was indicted for homicide through
reckless imprudence arising from a vehicular
accident. May his father-in-law who is a lawyer and a
Sangguniang Panlalawigan member represent him in
court? Reason. (2000 Bar)
A: Yes, his father-in-law may represent him in court.
Under the Local Government Code (R.A. 7160), members
of the Sanggunian may engage in the practice of law,
except in the following: (1) they shall not appear as
counsel before any court in any civil case wherein a local
government unit or any office, agency or instrumentality
of the government is the adverse party; (2) they shall not
appear as counsel in any criminal case wherein an officer
or employee of the national or local government is accused
of an offense committed in relation to his office; (3) they
shall not collect any fee for their appearance in
administrative proceedings including the local
government unit of which he is an official; and (4) they
shall not use property and personnel of the Government
except when the Sanggunian member concerned is
defending the interests of the government. In this case, the
town mayor was indicted for homicide through reckless
imprudence, an offense that is not related to his office.
Q:In a civil case before the Regional Trial Court
between Mercy Sanchez and Cora Delano, Sanchez
engaged the services of the Reyes Cruz & Santos Law
Offices. Delano moved for the disqualification of the
Reyes Cruz & Santos Law Offices on the ground that
Atty. Cruz is an incumbent senator. Rule on the motion
with reasons. (1990
Bar)
A:As a judge, I will require that the name of Atty. Cruz, an
incumbent Senator, be dropped from any pleading filed in
court or from any oral appearance for the law firm by any
other member of the law firm, and should the law firm
refuse, I will disqualify the law firm. My reasons are as
follows:
Article VI, Sec. 14 of the 1987 Constitution provides that
“no Senator or Member of the House of Representatives
may personally appear as counsel before any court of
Justice or before the Electoral Tribunals, or quasi-judicial
and other administrative bodies." What is prohibited is
personal appearance of the Senator Atty. Cruz, and for as
long as the Senator does not personally appear in court for
Mercy Sanchez, the prohibition does not apply. Personal
appearance includes not only arguing or attending a
hearing of a case in court but also the signing of a pleading
and filing it in court. Hence, the Senator should not allow
his name to appear in pleadings filed in court by itself or
as part of a law firm name, such as Reyes Cruz and Santos
Law Offices, under the signature of another lawyer in the
law firm, nor should he allow the firm name with his name
therein to appear as counsel through another lawyer,
without indirectly violating the constitutional restriction,
because the signature of an agent amounts to a signing by
the Senator through another lawyer is in effect his
appearance, the office of attorney being originally one of
agency, and because the Senator cannot do indirectly what
the Constitution prohibits directly. The lawyer actually
appearing for Mercy Sanchez should drop the name of
Atty. Cruz from any pleading or from any oral appearance
in court, otherwise the law firm could be disqualified.
Moreover, Rule 6.02 of the Code of Professional
Responsibility prohibits a lawyer in government from
using his public position to promote or advance his private
interests, and the Senator’s name appearing in pleadings
or in appearances by other lawyers in the law firm may be
misconstrued as indirectly influencing the judge to decide
the case in favor of the law firm’s client, which can only be
avoided by dropping the name of the Senator from the
firm name whenever it appears in court.
ALTERNATIVE ANSWERS:
a. The motion to disqualify the Reyes Cruz and Santos
Law Offices may not prosper as Article VI, Section 14
of the Constitution prohibits a Senator or Member of
the House of Representatives to personally appear as
counsel in any court of justice. If Attorney Cruz who is
a Senator personally appears, he may be disqualified.
b. I will deny the motion. The Constitution prohibits
personal appearance by a member of Congress before
the Courts but does not totally prohibit law practice.
As long as the Senator does not personally or
physically appear in court, there is no disqualification.
Lawyers who are authorized to represent government
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 Bar)
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
wellguarded 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: 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? (2017, 2006 Bar)
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 institution of marriage (Art 48, Family
Code). “The task of protecting marriage as an inviolable
social institution 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 interests of the parties.
 LAWYER’S OATH
Q: The Lawyer’s Oath is a source of obligation and its
violation is a ground for suspension, disbarment, or
other disciplinary action. State in substance the
Lawyer’s Oath. (2015, 2009 Bar)
1 advance no fact prejudicial to the honor or reputation
Answer:
“I, ____________________________________________, having been
permitted to continue in the practice of law in the
Philippines, do solemnly swear that I recognize the
supreme authority of the Republic of the Philippines; I will
support its Constitution and obey the law as well as the
legal orders of the duly constituted authorities therein; I
will do no falsehood, nor consent to the doing of any in
court; I will not wittingly or willingly promote or sue any
groundless, false or unlawful suit, nor give aid nor consent
to the same; I will delay no man for money or malice, and
will conduct myself as a lawyer according to the best of my
knowledge and discretion with all good fidelity as well to
the courts as to my clients; and I impose upon myself this
voluntary obligation without any mental reservation or
purpose of evasion. So help me God.”
Q: What is the significance of lawyer's oath?
(1996, 2003 Bar)
A: “The significance of the oath is that it not only
impresses upon the attorney his responsibilities but it also
stamps him as an officer of the court with rights, powers
and duties as important as those of the judge themselves.
The oath of a lawyer is a condensed code of legal ethics. It
is a source of his obligation and its violation is a ground
for his suspension, disbarment or other disciplinary
action" (Agpalo, Legal Ethics, 5th ed., p.59).
Q: Section 20, Rule 138 of the Rules of Court
enumerates nine (9) duties of attorneys. Give at least
three (3) of them. (2000, 2007
Bar)
A: Under Section 20, Rule 138, it is the duty of an attorney:
1. To maintain allegiance to the Republic of the
Philippines;
2. To maintain the respect due to the courts of justice
and judicial officers;
3. 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;
4. To employ, for the purpose 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;
5. 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;
6. To abstain from all offensive personality, and to
of a party or witness, unless required by the justice of
the cause with which he is charged;
7. 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;
8. Never to reject, for any consideration personal to
himself, the cause of the defenseless or oppressed; and
9. 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.
Q: State the duties of a lawyer imposed by the
Lawyer’s oath (2016 Bar)
A: The following are the duties of a lawyer imposed by the
lawyer’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;
4. To do no falsehood nor consent to the doing of the
same in any court;
5. Not to wittingly or willingly promote or sue any
groundless, false or unlawful suit nor to give nor to
consent to the doing of the same;
6. To delay no man for money or malice;
7. To conduct himself as a lawyer according to the best
of his knowledge and discretion, with all good fidelity
to the courts as to his clients; and
8. To impose upon himself that voluntary obligation
without any mental reservation or purpose of evasion.
The Code of Professional Responsibility
TO SOCIETY (CANONS 1-6)
Respect for law and legal processes
Q: Atty. Doblar represents Eva in a contract suit
against Olga. He is also defending Marla in a
substantially identical contract suit filed by Emma. In
behalf of Eva, Atty. Doblar claims that the statute of
limitations runs from the time of the breach of the
contract. In the action against Marla, Atty. Doblar now
argues the reverse position – i.e. that the statute of
limitation does not run until one year after discovery
of the breach.
Both cases are assigned to Judge Elrey. Although not
the sole issue in the two cases, the statute of
limitations issue is critical in both.
Is there an ethical/professional responsibility
problem in this situation? If a problem exists, what are
its implications or
potential consequences? (2013 Bar)
A: Yes. There is an ethical/professional responsibility
problem that results from the actuation of Atty. Doblar in
arguing the reverse positions.
The signatures of Atty. Doblar on the pleadings for Eva and
for Marla, constitute a certificate by him that he has read
the pleadings; that to the best of his knowledge,
information and belief there is good ground to support
them; and that the pleadings were not interposed for delay
(Rules of Court, Rule 7, Sec. 3, 2nd par.). Atty. Doblar could
not claim he has complied with the foregoing requirement
because he could not take a stand for Eva that is contrary
to that taken for Marla. His theory for Eva clearly
contradicts his theory for Marla. He has violated his
professional responsibility mandated under the Rules of
Court.
He has likewise violated the ethical responsibility that his
appearance in court should be deemed equivalent to an
assertion on his honor that in his opinion his client’s case
is one proper for judicial determination (Canons of
Professional Ethics, Canon 30, 2nd par., last sentence).
In counseling on the contradictory positions, Atty. Doblar
has likewise counseled or abetted activities aimed at
defiance of the law or at lessening confidence in the legal
system (Code of Professional Responsibility, Canon 1, Rule
1.02) because conflicting opinions may result arising from
an interpretation of the same law.
Atty. Doblar could not seek refuge under the umbrella that
what he has done was in protection of his clients. This is so
because a lawyer’s duty is not to his client but to the
administration of justice. To that end, his client’s success is
wholly subordinate. His conduct ought to and must always
be scrupulously observant of the law and ethics (Ernesto
Pineda, LEGAL AND JUDICIAL ETHICS, 211 [1999], citing
Maglasang v. People, G.R. No.
90083, October 4, 1990).
Any means, not honorable, fair and honest, which is
resorted to by the lawyer, even in the pursuit of his
devotion to his client’s cause, is condemnable and
unethical (Ibid.).
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 to 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 Bar)
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 defiance of the law or at lessening
confidence in the leg 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 in 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: Atty. XX rented a house of his cousin JJ on a month-
to-months basis. He left for a 6month study in Japan
without paying his rentals and electric bills while he
was away despite JJ’s repeated demands.
Upon his return to the Philippines, Atty. XX still failed
to settle his rental arrearages and electric bills,
drawing JJ to file an administrative complaint against
Atty. XX.
Atty. XX contended that his non-payment rentals and
bills to his cousin is a personal matter which has no
bearing on his profession as a lawyer and, therefore,
he did not violate the Code of Professional
Responsibility.Is Atty. XX’s contention in
order? Explain. (2010 Bar)
A: No. In a case involving the same facts, the Supreme
Court held that having incurred just debts, a lawyer has a
moral duty and legal responsibility to settle them when
they become due. “Verily, lawyers must at all times
faithfully perform their duties to society, to the bar, to the
court and to their clients. As part of their duties, they must
promptly pay their financial obligations” (Wilson Cham v.
Atty. Eva Pata-Moya, 556 SCRA 1 [2008]).
True, honest, fair, dignified and objective information
on legal services
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
Bar)
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. A lawyer
is not authorized to use in his practice of profession a
name other than the one inscribed in the Roll of Attorneys.
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
Bar)
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. It is highly unethical for an
attorney to advertise his talents or skill as a merchant.
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
The following session day, the Justice called the
attention of his colleagues and the Bar Confidant was
directed to verify the advertisement. It turned out that
the number belongs to Attorney X, who was then
directed to explain to the court why he should not be
disciplinarily dealt with for the improper
advertisement. Attorney X, in his answer, averred that
(1) the advertisement was not improper because his
name was not mentioned in the ad; and (2) he could
not be subjected to disciplinary action because there
was no complaint against him. Rule on Attorney X’s
contention. (2017, 2003, 1998 Bar)
A: 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
1 case of Ulep v. Legal Clinic, Inc., 223 SCRA 378, 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.
A complaint is not necessary to initiate disciplinary action
against a lawyer. In Sec. 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 advertisements
by an attorney are ethical or unethical. Write “Ethical”
or “Unethical”, as the case may be, opposite each letter
and explain.
a. A calling card, 2x2 in size, bearing his name in
bold print, office, residence and e-mail address,
telephone and facsimile numbers.
b. A business card, 3’’x4’’ in size, indicating the
aforementioned data with his photo, 1’’x1’’ in size.
c. A pictorial press release in a broadsheet
newspaper made by the attorney showing him
being congratulated by the president of a client
corporation for winning a multimillion damage
suit against the company in the Supreme Court.
d. The same press release made in a tabloid by the
attorney’s client.
e. A small announcement that the attorney is giving
free legal advice on November 30, 2017 published
in Balita,
a tabloid in Filipino. (2017, 2002 Bar)
A:
a. Ethical – A lawyer, in making known his legal services
shall use only true, honest, fair, dignified and objective
information or statement of facts (Code of Professional
Responsibility, Canon 3). For solicitation to be proper,
it must be compatible with the dignity of the legal
profession. If made in a modest and decorous manner,
it would bring no injury to the lawyer or to the bar
(Warvelle, Legal Ethics, p.55).
b. Unethical – The size of the card and the inclusion of
the lawyer’s photo in it smacks of commercialism. It is
highly unethical for an attorney to advertise his
talents or skill as a merchant.
c. Unethical – A lawyer shall not pay or give anything of
value to representatives of the mass media in
anticipation of, or in return for, publicity to attract
legal business (Code of Professional Responsibility, Rule
3.04). A lawyer should not resort to indirect
 advertisements such as a pictorial press release in a
newspaper to attract legal business.
d. Ethical – A lawyer cannot be held liable for the action
of his client, provided he had no knowledge of the
client’s act. However, it would be unethical if the
lawyer knew of the client’s intention to publish but
nonetheless failed to prevent it.
e. Ethical– The proffer of free legal services to the
indigent, even when broadcast over the radio or
tendered through circulation
of printed matter to the general public, offends no
ethical rule. The rule prescribing advertising or
solicitation of business is aimed at commercialization
of the profession and has to do with the effort to
obtain remunerative business. It was never aimed at a
situation in which a group of lawyers announce that
they are willing to devote some of their time and
energy to the interests of indigent citizens (Agpalo,
Legal and Judicial Ethics, 8th Ed., p. 123).
Q: A sign was posted at the building where the law
office of Atty. RedentorWalang-Talo is located. The
sign reads:
Atty. Redentor A. Walang-Talo Chairman, IBP Legal
Aid Committee Makati City IBP Chapter
Free conciliation, mediation and court
representation
Suite 210, Galaxy Building, J.P. Rizal Street,
Makati City
a. Does the posting constitute solicitation?
A: There is nothing wrong with the advertisement. The
statement that he is the chairman of the IBP Legal Aid
Committee is factual and true. Canon 27 of the Code of
Professional Ethics states that “memberships and offices
in bar associations and committees thereof” may be
included in a lawyer’s advertisement. The statement that
he gives free consultation, mediation and court
representation services is for the purpose of promoting
the IBP Legal Aid Committee.
b. Suppose the sign reads:
Atty. Redentor A. Walang-Talo Attorney and Counsel-
at-Law General Practitioner
(Accepts pro bono cases pursuant to the IBP
Legal Aid Program) Does the posting
constitute solicitation?
(2016 Bar)
A: On the other hand, this advertisement is for the benefit
of the lawyer alone and constitutes solicitation.
ALTERNATIVE ANSWER:
This does not constitute solicitation. The lawyer does not
claim to be a specialist, but only a “general practitioner.”
The statement that he accepts pro bono cases is not for the
purpose of promoting his “business’’, as ”pro
bono” means “for free.”
TO THE LEGAL PROFESSION
INTEGRATED BAR OF THE PHILIPPINES
(RULE 139-A)
Membership and dues
Q: Not paying the annual IBP dues. (2008
Bar)
A: It is the duty of every lawyer to support the activities of
the Integrated Bar of the Philippines (Canon 7, CPR).
Default in payment of IBP dues for six months shall
warrant suspension of membership to the Integrated Bar,
and default to make such payment for one year shall be a
ground for the removal of the delinquent member from
the Roll of Attorneys (In Re Atty. Marcial Edillon, 84 SCRA
554 [1978]).
Upholding the dignity and integrity of the profession
Q:Atty. Kuripot was one of Town Bank's valued clients.
In recognition of his loyalty to the bank, he was issued
a gold credit card with a credit limit of P250,000.00.
After two months, Atty. Kuripot exceeded his credit
limit, and refused to pay the monthly charges as they
fell due. Aside from a collection suit, Town Bank also
filed a disbarment case against Atty. Kuripot.
In his comment on the disbarment case, Atty. Kuripot
insisted that he did not violate the Code of
Professional Responsibility, since his obligation to the
bank was personal in nature and had no relation to his
being a lawyer.Is Atty. Kuripot correct?
Explain your answer. (2017, 2005 Bar)
A: No. Atty. Kuripot is not correct. A lawyer should act
according to the standards of the legal profession even in
his personal acts. A lawyer shall not engage in conduct
that adversely affects 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
(Code of Professional Responsibility, Rule 7.03).
Q: Sonia, who is engaged in the lending business,
extended to Atty. Roberto a loan of P50, 000.00 with
interest of P25, 000.00 to be paid not later than May
20, 2016. To secure the loan, Atty. Roberto signed a
promissory note and issued a postdated check. Before
the due date, Atty. Roberto requested Sonia to defer
the deposit of the check. When Atty. Roberto still
failed to pay, Sonia deposited the check which was
dishonored. Atty. Roberto ignored the notice of
dishonor and refused to pay.
a. Did Roberto commit any violation of the CPR?
Explain.
b. Can he be held civilly liable to Sonia in an
administrative case for suspension or
disbarment? (2016 Bar)
A:
a. Atty. Roberto committed a violation of Canon 1 Rule
1.01, Canon 7 and Rule 7.03 in issuing a bouncing
check. He should very well know that the issuance of a
bouncing check is an unlawful act, a crime involving
moral turpitude. (Co v. Bernardino, A.C. No. 3919,
January 28,
1998)
b. No. The sole issue in an administrative case is the
determination of whether or not a lawyers is still fit to
continue being a lawyer. The Supreme Court will not
order the return of money which is not intimately
related to a lawyer-client relationship (Wong v. Moya,
A.C. 6972, October 17, 2008; Sps. Concepcion v. Atty.
De La Rosa, A.C. No. 10681, Feb. 3, 2015).
Courtesy, fairness and candor towards professional
colleagues
Q: You are the counsel of K in his action for specific
performance against DEV. Inc., a subdivision
developer which is represented by Atty. L. Your client
believes that the president of DEV, Inc., would be
willing to consider an amicable settlement and your
client urges you to discuss the matter with DEV. Inc.,
without the presence of Atty. L whom he considered to
be an impediment to an early compromise. Would it
be all right for you to negotiate the terms of the
compromise as so suggested above by your
client? (1997 Bar)
A:No. Rule 8.02, Canon 8 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 is more particular, "a lawyer should not in any way
communicate upon the subject of the controversy with a
party represented by counsel, much less should he
undertake to negotiate or compromise the matter with
him but should deal only with his counsel." In the case of
Likong vs. Liin, 235 SCRA 414, a lawyer was suspended for
negotiating a compromise agreement directly with the
adverse party without the presence and participation of
her counsels.
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
1 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 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
Bar)
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: Gretel’s residence in Makati village was foreclosed
by Joli Bank. Armed with a writ of possession issued
by the lower court, the sheriff and Joli Bank’s lawyers
evicted Gretel and padlocked the house. A restraining
order issued by the Court of Appeals which Gretel
showed the sheriff was disregarded. Gretel requested
Hansel, an attorney who lives in the same village, to
assist her in explaining the restraining order, since
Gretel’s counsel of record was out of town. The
discussion on the restraining order was conducted on
the sidewalk along Gretel’s house. The village security
guards were attracted by the commotion brought
about by the discussion, so they called the Makati
Police and the CAPCOM who responded immediately.
The CAPCOM colonel, who arrived at the scene with
his troop took it upon himself to open the house and
declare Gretel as the rightful possessor. The colonel
invited Gretel and Hansel to enter the house. Five days
later, Hansel was made a co-respondent (together
with Gretel) in a complaint for trespass to dwelling
filed by Joli Bank’s lawyers before the Makati
Fiscal’s office.
Discuss the propriety of the act of Joli Bank’s lawyers,
considering that all lawyers are mandated to conduct
themselves with courtesy, fairness and candor toward
their professional colleagues and to avoid harassing
tactics against opposing counsel.
(1989 Bar)
A: Considering that there was a restraining order issued
by the Court of Appeals, it was proper for Gretel to take
steps to maintain possession of his residence with the
assistance of Hansel as lawyer.
It was not proper for the Joli Bank’s lawyers to file an
action of trespass to dwelling against Gretel and lawyer
Hansel. Canon 8 of the Code of Professional Responsibility
provides that a lawyer shall conduct himself with fairness
and candor towards his professional colleagues and shall
avoid harassing tactics against opposing counsel.
No assistance in 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 therefrom.Will
you agree to the
arrangement? Explain. (2017, 2005 Bar)
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, not
being a lawyer, is not licensed to practice law and not
entitled to a share of the fees for legal services rendered,
particularly in notarizing affidavits.
Q: Atty. Monica Santos-Cruz registered the firm name
“Santos-Cruz Law Office” with the Department of
Trade and Industry as a single proprietorship. In her
stationery, she printed the names of her husband and
a friend who are both non-lawyers as her senior
partners in light of their investments in the firm. She
allowed her husband to give out calling cards bearing
his name as senior partner of the firm and to appear
in courts to move for postponements. Did Atty. Santos-
Cruz violated the Code of Professional Responsibility?
Why? (2010
Bar)
A: Yes, she did. In the case of Cambaliza v. Cristobal-
Tenorio (434 SCRA 288 [2004]), which involves the same
facts, the Supreme Court held that a lawyer who allows a
non-member of the Bar to misrepresent himself as a
lawyer and to practice law, is guilty of violating Canon 9
and Rule 9.01 of the Code of Professional Responsibility
which provide as follows: “Canon 9. A lawyer shall not
directly or indirectly assist in the unauthorized practice of
law.”
“Rule 9.01. A lawyer shall not delegate to any
unauthorized person the performance of any task which
by law may only be performed by a
member of the bar in good standing.”
TO THE COURTS
Candor, fairness and good faith towards the courts
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 Bar)
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 decidendiof a Supreme
Court decision shows, at least, lack of diligence on the part
of Atty. A (Commission on Election v. Noynay, 292 SCRA
254).
Q: Atty. Billy, a young associate in a medium-sized law
firm, was in a rush to meet the deadline for filing his
appellant’s brief. He used the internet for legal
research by typing keywords on his favorite search
engine, which led him to many websites containing
text of Philippine jurisprudence. None of these sites
was owned or maintained by the Supreme Court. He
found a case believed to be directly applicable to his
client’s cause, so he copied the text of the decision
from the blog of another law firm, and pasted the text
to the document he was working on. The formatting of
the text he had copied was lost when he pasted it to
the document, and he could not distinguish anymore,
which portions were the actual findings or rulings of
the Supreme Court, and which were quoted portions
from the other sources that were used in the body of
the decision. Since his deadline was fast approaching,
he decided to just make it appear as if every word he
quoted was part of the ruling of the Court, thinking
that it would not be discovered.
Atty. Billy’s opponent, Atty. Ally, a very conscientious
former editor of her school’s law journal, noticed
many discrepancies in Atty. Billy’s supposed
quotations from the Supreme Court decision when she
read the text of the case from her copy of the
Philippine Reports. Atty. Billy failed to reproduce the
punctuation marks and font sizes used by the Court.
Worse, he quoted the arguments of one party as
presented in the case, which arguments happened to
be favorable to his position, and not the ruling or
reasoning of the Court, but this distinction was not
apparent in his brief. Appalled, she filed a complaint
against him.
a. Did Atty. Billy fail in his duty as a lawyer? What
rules did he violate, if any?
b. How should lawyer quote a Supreme Court
decision? (2015, 1994 Bar)
A:
A. Atty. Billy has violated Canon 10, Rules 10.01 and 10.02
of the Code of Professional
Responsibility (CPR) which provide as follows:
CANON 10. A LAWYER OWES CANDOR, FAIRNESS AND
GOOD FAITH TO THE COURT.
Rule 10.01. A lawyer shall not do any falsehood, nor
consent to the doing of any in court; nor shall he mislead
or allow the Court to be misled by any artifice.
Rule 10.02. A lawyer shall not knowingly misquote or
misrepresent the contents of a paper, the language or the
argument of the opposing counsel, or the text of a decision
or authority, or knowingly cite a law a provision already
rendered inoperative by repeal or amendment, or assert
as a fact that which has not been proved.
B.They should be verbatim reproductions of the Supreme
Court’s decisions, down to the last word and punctuation
mark (Insular Life Assurance Co., Ltd., Employees
Association v. Insular Life Assurance Co., Ltd., G.R. No. L-
25291, January 30, 1971, 37 SCRA 244).
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. Does the conduct of Atty. X
constitute malpractice? Explain. (1996 Bar)
A: Yes, the conduct of Atty. S constitutes malpractice. A
lawyer owes candor, fairness and good faith to the court.
He shall not do any falsehood or shall be mislead 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
(Cantome v. Ducusin, 57 Phil. 20)
1
Respect for the courts and judicial officers
Q: Atty. Luna Tek maintains an account in the social
media network called Twitter and has 1,000 followers
there, including fellow lawyers and some clients. Her
Twitter account is public so even her non-followers
could see and read her posts, which are called tweets.
She oftentimes takes to Twitter to vent about her daily
sources of stress like traffic or to comment about
current events. She also tweets her disagreement and
disgust with the decisions of the Supreme Court by
insulting and blatantly cursing the individual Justices
and the Court as an institution.
a. Does Atty. Luna Tek act in a manner consistent
with the Code of Professional Responsibility?
Explain the reasons for your answer.
b. Describe the relationship between a
lawyer and the courts. (2015 Bar)
A:
a. Atty. Luna did not act in a manner consistent with the
Code of Professional Responsibility (CPR). Canon 11
of the Code provides that “a lawyer shall observe and
maintain the respect due to the courts and to judicial
officers and should insist on similar conduct with
others.” As an officer of the court, a lawyer should set
the example in maintaining a respectful attitude
towards the court. Moreover, he should abstain from
offensive language in criticizing the courts. Atty. Luna
Tek violated this rule in insulting and blatantly
cursing the individual Justices and the Supreme Court
in her tweets. Lawyers are expected to carry their
ethical responsibilities with them in cyberspace
(Lorenzana v. Judge Ma. Cecilia L. Austria, A.M. No. RTJ-
09-2200, April 2, 2014).
b. A lawyer is an officer of the court. As such, he is much
a part of the machinery of justice as a judge is. The
judge depends on the lawyer for the proper
performance of his judicial duties. Thus, Canon 10
enjoins a lawyer to be candid with the courts; Canon
11 requires him to show respect to judicial officers;
and Canon 12 urges him to exert every effort and
consider it his duty to assist in the speedy and
efficient administration of justice.
Q: Atty. Y, in his Motion for Reconsideration of the
Decision rendered by the National Labor Relations
Commission (NLRC), alleged that there was
connivance of the NLRC Commissioners with Atty. X
for monetary considerations in arriving at the
questioned Decision. He insulted the Commissioners
for their ineptness in appreciating the facts as borne
by the evidence presented.
Atty. X files an administrative complaint against Atty.
Y for using abusive language.
Atty. Y posits that as lawyer for the downtrodden
laborers, he is entitled to express his righteous anger
against the Commissioners for having cheated them;
that his allegations in the Motion for Reconsideration
are absolutely privileged; and that proscription
against the use of abusive language does not cover
pleadings filed with the NLRC, as it is not a court, nor
are any of its Commissioners Justice or Judges.
Is Atty. Y administratively liable under the Code of
Professional Responsibility?
Explain. (2010 Bar)
A: Atty. Y “has clearly violated Canons 8 and 11 of the Code
of Professional Responsibility and is administratively
liable. A lawyer shall not in his professional dealings, use
language which is abusive, offense or otherwise improper”
(Rule 8.01, CPR). A lawyer shall abstain from scandalous,
offensive or menacing language or behavior before the
courts (Rule 11.03, CPR).
In the case of Johnny Ng v. Atty. Benjamin C. Alar (507 SCRA
465 [2006]), which involves the same facts, the Supreme
Court held that the argument that the NLRC is not a court,
is unavailing. The lawyers remains a member of the Bar,
an “oath-bound servant of the law, whose first duty is not
to his client but to the administration of justice and whose
conduct ought to be and must be scrupulously observant
of the law and ethics.”
The Supreme Court also held that the argument that labor
practitioners are entitled to some latitude of righteous
anger is unavailing. It does not deter the Court from
exercising its supervisory authority over lawyers who
misbehave or fail to live up to that standard expected of
them as members of the bar.
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
executory, 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 Bar)
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
the decision of a judge or his actuations is not unlimited. It
is the cardinal condition of all such criticism that it shall be
bona fide, and shall not spill over the walls of 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 in
any way 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: Atty. Harold wrote in the Philippine Star his view
that the decision of the Supreme Court in a big land
case is incorrect and should be re-examined. The
decision is not yet final. Atty. Alfonso, the counsel for
the winning party in that case, filed a complaint for
disbarment against Atty. Harold for violation of sub
judice rule and Canon 11 of the CPR that a lawyer shall
observe and maintain respect due to the courts.
Explain the sub judice rule and rule on the
disbarment case. (2016 Bar)
A: The sub judice rule restricts comments and disclosures
pertaining to pending judicial proceedings, not only by
participants in the pending case, members of the bar and
bench, litigants and witnesses, but also to the public in
general, which necessarily includes the media, in order to
avoid prejudging the issue, influencing the court, or
obstructing the administration of justice. A violation of
this rule may render one liable for indirect contempt
under Sec. 3(d), Rule 71 of the Rules of Court. The specific
rationale for the sub judice rule is that courts, in the
decision of issues of fact and law should be immune from
every extraneous influence; that facts should be decided
upon evidence produced in court; and that the
determination of such facts should be uninfluenced by
bias, prejudice or sympathies. (Marantan v. Diokno, 716
SCRA 164, Feb. 12, 2014) After a case is decided, however,
the decision is open to criticism, subject only to the
condition that all such criticism shall be bona fide, and
shall not spill over the walls of decency and propriety.
A wide chasm exists between fair criticism, on the one
hand, and abuse and slander of courts and the judges
thereof, on the other. Intemperate and unfair criticism is a
gross violation of the duty of respect to courts. It is such a
misconduct that subjects a lawyer to disciplinary action
(In Re Almace, G.R. L-27654, February 18, 1970).
In this case, the published comment of Atty. Harold was
made after the decision of the Supreme Court was
rendered, but the same was not yet final. The case was still
pending. Hence, the publication of such comment was
inappropriate, and Atty. Harold may be penalized for
indirect contempt of court.
ALTERNATIVE ANSWER:
Although the comment of Atty. Harold was made while the
case was technically pending, it was made after a decision
was rendered, and the comment made is within the
grounds of decency and propriety. Hence, the lawyer does
not deserve punishment for the same.
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 the
Judge and a lawyer? Explain. (1996 Bar)
A: The Code of Professional Responsibility requires
lawyers to observe and maintain respect for judicial
officers (Canon 11). On the other hand, the Code of
JudicialConduct requires judge to be patient, attentive and
courteous to lawyers (Rule 3). In a word, lawyers and
judges owe each other mutual respect and courtesy.
ALTERNATIVE ANSWERS:
a. The relationship between a judge and a lawyer
must be based on independence and self-respect. He
must neither be a mindless fawning slave of the judge,
nor must he take an attitude of hostility towards the
Judge. The lawyer must maintain toward the court a
respectful attitude and to uphold and protect the
dignity of the court.
b. Being an officer of the court, the first and foremost
duty of the lawyer is to the court. He is bound to obey
lawful orders and decisions of the court. Like the court
itself, the lawyer is an instrument to advance the ends
of justice. Should there be a conflict between the duty
to his client and that of the court, he should resolve
the conflict against his client and obey the lawful
orders of the court. On the other hand, judges should
be courteous and impartial to counsel. To maintain
impartiality, the judge should not associate too much
with lawyers.
Assistance in the speedy and efficient administration
of justice
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 lapse of
thirty (30) days from receipt of the Court’s resolution.
1 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 Bar)
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,
let 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 [1989]).
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.
Cuawhat would you do? Explain. (1993
Bar)
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 the 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 no 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 aid nor consent to the same”.
Reliance on merits of his cause and avoidance of any
impropriety which tends to influence or gives the
appearance of influence upon the courts
Q: Atty. Hermano requested his fraternity brother,
Judge Patron, to introduce him to Judge Apestado,
before whom he has a case that had been pending for
sometime.
Judge Patron, a close friend of Judge Apestado,
acceded to the request, telling the latter that Atty.
Hermano is his fraternity “brod” and that Atty.
Hermano simply wanted to ask for advice on how to
expedite the resolution of his case. They met, as
arranged, in the fine dining restaurant of a five-star
hotel. Atty. Hermano hosted the dinner.
Did Atty. Hermano, Judge Patron and Judge
Apestado commit any ethical/administrative violation
for which
they can be held liable? (2013 Bar)
A: Yes, the three (3) of them committed
ethical/administrative violations for which they can be
held liable.
For hosting the dinner, Atty. Hermano acted in
contravention of ethical standards. A lawyer should
refrain from any impropriety which tends to influence or
give the appearance of influencing the court (Code of
Professional Responsibility, Canon 13, Rule 13.01). A lawyer
shall not extend extraordinary attention or hospitality to,
nor seek opportunity for cultivating familiarity with
judges (Ibid., Canon 13, Rule 13.01). Marked attention and
unusual hospitality on the part of a lawyer to a judge,
uncalled for by the personal relations on the parties,
subject both the judge and the lawyer to misconstruction
of motive and should be avoided (Canons of Professional
Ethics, canon 3, 2nd par., 1st sentence). Even if the purpose of
the meeting was merely to “ask advice on how to expedite
the resolution of his case,” Atty. Hermano still acted
outside of the bounds of ethical conduct. This is so because
a lawyer deserves rebuke and denunciation for any device
or attempt to gain from a judge a special personal
consideration or favor (Ibid., Canon 3, 2nd par., 2nd
sentence).
Both judge patron and Judge Apestado may be held liable
for having the dinner meeting with Atty. Hermano. Judges
shall ensure that not only is their conduct above reproach,
but that it is perceived to be so in the view of a reasonable
observer (New Code of Conduct for the Philippine Judiciary,
Canon 2, Sec.1). Judges shall avoid impropriety and the
appearance of impropriety in all of their activities (Ibid.,
Canon 4, Sec. 1). Their having dinner with Atty. Hermano, a
practicing lawyer, could be construed as appearance of
impropriety.
Judge Patron for having allowed himself to be used as a
“bridge” by Atty. Hermano, his fraternity “brod”, to meet
with Judge Apestado exhibited judicial misconduct in the
following manner: Judges shall refrain from influencing in
any manner the outcome of litigation or dispute pending
before another court (Ibid., Canon 1, Sec. 3). Furthermore,
in allowing Atty. Hermano to take advantage of his
fraternity bond, Judge Patron allowed the prestige of
judicial office to advance the private interests of others,
conveyed or permitted hos fraternity “brod” to convey the
impression that he is in a special position to influence the
judge (Ibid., Canon 1, Sec 4, 2nd sentence).
The specific violations of Judge Apestado were committed
when he allowed himself to be convinced by Judge Patron
to have the dinner meeting with Atty. Hermano to discuss
how the case may be expedited. In performing judicial
duties, judges shall be independent form judicial
colleagues in respect of decisions which the judge is
obliged to make independently (Ibid., Canon 1, Sec. 2).
Finally, in having dinner meeting with Atty. Hermano who
has a pending case with his sala, Judge Apestado has
exhibited an appearance of impropriety in his activities
(Ibid., Canon 4, Sec
1).
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 the IBPsponsored 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 Bar)
A: Yes, his actions violate the Code of Professional
Responsibility. Canon 13 of the said Code 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. 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 wedding of his son.
Q: After a study of the records and deciding that
plaintiff was entitled to a favorable Judgment, Judge
Reyes requested Atty. Sta. Ana, counsel for the
plaintiff, to prepare the draft of the decision. Judge
Reyes then reviewed the draft prepared by Atty. Sta.
Ana and adopted it as his decision for plaintiff. Judge
Reyes saw nothing unethical in this procedure as he
would ask the other party to do the same if it were the
prevailing party.
Please comment on whether Judge Reyes' approach to
decision-writing is ethical and proper. (1994 Bar)
A:This procedure of Judge Reyes is unethical because the
judge is duty bound to study the case himself; he must
personally and directly prepare his decisions and not
delegate it to another person especially a lawyer in the
case (Section 1. Rule 36, Rules of Court).
ALTERNATIVE ANSWER:
In the case of Lantoria vs. Bunyi, 209 SCRA 528, a lawyer
was suspended for preparing drafts of decisions for a
judge. The Supreme Court held that this violated Canon
No. 13 and Rule 13.01 of the Code of Professional
Responsibility which provide that:
“CANON 13. – A lawyer shall rely upon the merits of his
case and refrain from any impropriety which tends to
influence, or gives
the appearance of influencing the court."
“Rule 13.01 – A lawyer should not extend extraordinary
attention or hospitality to nor seek opportunity for
cultivating familiarity with the judge."
Conversely, therefore, a judge should not ask lawyers of
parties to a case before him to draft his decisions. “A judge
should so behave at all times as to promote public
confidence in the integrity and impartiality of the
judiciary."
(Rule 2.01, Code of Judicial Conduct)
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 Bar)
A: 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
Conductnot to take part in any proceeding where his
impartiality may be reasonably questioned (Code of
Judicial Conduct, Rule 3.12). 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: Rico, an amiable, sociable lawyer, owns a share in
Marina Golf Club, easily one of the more posh golf
courses. He relishes hosting parties for government
officials and members of the bench.
One day, he had a chance meeting with a judge in the
1 Intramuros golf course. The two readily got along well
and had since been regularly playing golf together at
the Marina Golf Club.
a. If Atty. Rico does not discuss cases with members
of the bench during parties and golf games, is he
violating the Code of Professional Responsibility?
Explain.
b. How about the members of the bench who grace
the parties of Rico, are they violating the Code of
Judicial Conduct? Explain. (2010 Bar)
A:
a. Yes. A lawyer shall not extend extraordinary attention
or hospitality to, nor seek opportunity for cultivating
familiarity with judges (Code of
Professional Responsibility, Rule 13.01). Moreover, he
should refrain from any impropriety which gives the
appearance of influencing the court (CPR, Canon 13).
In regularly playing golf with judges, Atty. Rico will
certainly raise the suspicion that they discuss cases
during the game, although they actually do not.
However, if Rico is known to be a non-practicing
lawyer, there is not much of an ethical problem.
b. Members of the bench who grace the parties of Atty.
Rico would be guilty of violating Sec. 3, Canon 4 of the
New Code of Judicial Conduct for the Philippine
Judiciary which provides that “judges shall, in their
personal relations with individual members of the
legal profession who practice regularly in their court,
avoid situations which might reasonably give rise to
the suspicion or appearance of favoritism or
partiality”. It has been held that “if a judge is seen
eating and drinking in public places with a lawyer who
has cases pending in his or her sala, public suspicion
may be aroused, thus tending to erode the trust of
litigants in the impartiality of the judge” (Padilla v.
Zantua, 237 SCRA 670). But if Atty. Rico is not a
practicing lawyer, such suspicion may not be aroused.
TO THE CLIENTS
AVAILABILITY OF SERVICE WITHOUT
DISCRIMINATION
Services regardless of a person’s status
Q: M was criminally charged with violation of a special
law. He tried to engage the service of Atty. N. Atty. N
believed, however, that M is guilty on account of which
he declined. Would it be ethical for Atty. N to
decline? Explain. (2000, 1996 Bar)

A: It would not be ethical for Atty. N to decline. Rule 14.01
of the Code of Professional
Responsibility provides that’ 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. It is for the judge, not
the lawyer, to decide the guilt of the accused, who is
presumed to be innocent until his guilt is proved beyond
reasonable doubt by procedure recognized by law.
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 Bar)
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 (Code of Professional Responsibility, Canon 14, Rule
14.01).
Q: Your services as a lawyer are engaged by John
Dizon to defend him from the charge of malversation
of public funds before the Sandiganbayan. John
confessed to you that he actually misappropriated the
amount charged but he said it was out of extreme
necessity to pay for the emergency operation of his
wife.
Will you agree to defend him? State your
reason. (1990 Bar)
A:I will agree to defend him, notwithstanding his
confession to me that he actually misappropriated the
amount. Rule 14.01 of the Code of Professional
Responsibility provides that a lawyer shall not decline to
represent a person because of his own opinion regarding
the guilt of the person. One of the duties of an attorney is
that he should, in the defense of a person accused of a
crime, by all fair and honorable means regardless of his
personal opinion as to guilt of the accused, present every
defense that the law permits, to the end that no person
may be deprived of life liberty but by due process of law.
The burden of proof lies with the prosecution and if the
prosecution fails to discharge such burden, the lawyer can
always invoke the presumption of innocence for the
acquittal of his client. If the prosecution proves the guilt of
the accused beyond reasonable doubt, the lawyer can
strive to lower the penalty by presenting mitigating
circumstances, for he is not necessarily expected to
sustain the client’s innocence. A lawyer is an advocate, not
a judge, and if he has rendered effective legal assistance to
his client as allowed by law, he can rightfully say that he
has faithfully discharged his duties as a lawyer, even if the
accused is found guilty by the court.
Services as counsel de officio
Q: May a lawyer decline an 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 Bar)
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: In a homicide case, Atty. M was appointed by the
Court as counsel de oficio for F, the accused. After trial,
F was acquitted. Atty. M sent F a bill for attorney’s fees.
a. Can F be compelled to pay? Explain.
b. Can F employ a counsel de parte to collaborate
with Atty. M, his counsel de
oficio? Explain. (1996 Bar)
A:
a. No, F may not be compelled to pay attorney’s fees. A
counsel de officio is a lawyer appointed to render
professional services in favor of an indigent client. In
the absence of a law allowing compensation, he cannot
charge the indigent litigant for his professional
services. One of the obligations which the lawyer
assumed when he took his oath as a lawyer is to
render free legal services when required by the law to
do so. The Rules of Court provides a token
compensation for an attorney de officio to be paid by
the state.
b. He may do so, but if he can afford to employ a counsel
de parte, then he is no longer indigent and will not
need a counsel de officio. The latter can withdraw as
his counsel if he chooses to.
Q: Atty. Aguirre, as counsel de oficio for Boy
Batongbakal, was able to win an acquittal for Boy who
was charged with robbery in band. A year later, Atty.
Aguirre discovered that Boy in fact had a lot of money
which he had been bragging was part of the loot in the
crime for which he was acquitted. Knowing that Boy
could no longer be prosecuted on the ground of
double jeopardy, Atty. Aguirre sent him a bill for his
services as his counsel de oficio.
Please give your reasoned comments on the ethical
considerations involved, if any, in
the above case. (1994 Bar)
A:A counsel de oficio is a lawyer appointed by the court to
defend an indigent defendant in a criminal case. The
lawyer designated as counsel de officio cannot charge the
indigent litigant for his professional services. In a sense,
there is no contract for legal services between him and the
defendant. In the absence of an express or implied
contract, there is no obligation to compensate. Suing his
client for attorney’s fees might also involve a violation of
the confidential nature of a lawyer-client relationship.
Q: Atty. Vidal, a semi-retired Metro Manila law
practitioner, has a cattle ranch in the remote
municipality of Caranglan, Neuva Ecija. He attends to
his law office in Manila on Mondays, Tuesdays and
Wednesdays, and spends the rest of the week in his
cattle ranch riding horses and castrating bulls. In a
criminal case pending before the
Municipal Trial Court of Caranglan, the only other
licensed member of the Bar is representing the
private complainant. The accused is a detention
prisoner. The judge wants to expedite proceedings.
a. What must the judge do to expedite proceedings?
b. 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 Bar)
A:
a. 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.
b. 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. Precisely one of the
objectives of the Integrated Bar is to compel all
lawyers in the active practice of law to comply with
their obligation to assist the courts in the
administration of justice.
Valid grounds for refusal to serve
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 Bar)
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
1 e. Lawyer is preoccupied with too many cases which will
spell prejudice to the new clients.
Q: A is accused of robbery in a complaint filed by B. A
sought free legal assistance from the Public Attorney’s
Office (PAO) and Atty. C was assigned to handle his
case. After reviewing the facts as stated in the
complaint and as narrated by A, Atty. C is convinced
that A is guilty.
a. May Atty. C refuse to handle the defense of A and
ask to be relieved? Explain fully.
b. In problem (a), if the lawyer is counsel de parte for
the accused and he learns later after accepting the
case and while trial is ongoing that his client was
indeed the perpetrator of the crime, may the
lawyer withdraw his appearance from the case?
Why or why not? (2014 Bar)
A:
a. Rule 14.04 of the Code of Professional Responsibility
provides that a lawyer shall not decline to represent a
person solely on account of his own opinion regarding
the guilt of the said person. It is not the duty of a
lawyer to determine whether the accused is guilty or
not, but the judge’s. Besides, in a criminal case, the
accused is presumed innocent, and he is entitled to an
acquittal unless his guilt is proven beyond reasonable
doubt. The role of the lawyer is to see to it that his
constitutional right to due process is observed.
b. He may withdraw his appearance but in accordance
with procedure in Sec. 26, Rule
138 of the Rules of Court. Moreover, Rule 19.02 of the
Code of Professional
Responsibility provides that “a lawyer who has
received information that his client has, in the course
of the representation, perpetuated a fraud upon a
person or tribunal, shall promptly call upon the client
to rectify the same, and failing which, he shall
terminate the relationship with such client in
accordance with the Rules of Court.”
CANDOR, FAIRNESS AND LOYALTY TO CLIENTS
Privileged communications
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 wouldbe 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 Bar)
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
(Code of Professional Responsibility, Rule 15.02). 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 (Rules of
Court, Rule 130, Sec. 21 [b]). 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 Bar)
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). In the third place, the attorney-
client privilege does not cover information concerning a
crime or a fraud being committed or proposed to be
committed.
Q: Maria and Atty. Evangeline met each other and
became good friends at zumba class. One day, Maria
approached Atty. Evangeline for legal advice. It turned
out that Maria, a nurse, previously worked in the
Middle East. So she could more easily leave for work
abroad, she declared in all her documents that she
was still single. However, Maria was already married
with two children. Maria again had plans to apply for
work abroad but this time, wished to have all her
papers in order. Atty. Evangeline, claiming that she
was already overloaded with other cases, referred
Maria’s case to another lawyer. Maria found it
appalling that after Atty. Evangeline had learned of
her secrets, the latter refused to handle her case.
Maria’s friendship with Atty. Evangeline permanently
turned sour after Maria filed an administrative case
against the latter for failing to return borrowed
jewelry. Atty. Evangeline, on the other hand,
threatened to charge Maria with a criminal case for
falsification of public documents, based on the
disclosures Maria had earlier made to Atty.
Evangeline.
Was the consultation of Maria with Atty. Evangeline
considered privilege? (2015 Bar)
A: The consultation of Maria with Atty. Evangeline is
considered privileged. The moment the complainant
approached the then receptive respondent to seek legal
advice, a veritable lawyer-client relationship evolved
between the two. Such relationship imposes upon the
lawyer certain restrictions circumscribed by the ethics of
the profession. Among the burdens of the relationship is
that which enjoins the lawyer to keep inviolate
confidential information acquired or revealed during legal
consultations. The fact that one is, at the end of the day not
inclined to handle the client’s case is hardly of
consequence. Of little moment too, is the fact that no
formal professional engagement follows consultation. Nor
will it make any difference, that no contract whatsoever
was executed by the parties to memorialize the
relationship (Hadjula v.
Madianda, A.C. No. 6711, July 3, 2007).
Conflict of Interest
Q: St. Ivan’s Hospital, Inc. (St. Ivan’s) and allied
Construction Co. (Allied) separately retained the legal
services of Tomas and Benedicto Law Offices. St. Ivan’s
engaged the service of Allied for the construction of a
new building but failed to pay the contract price after
the completion of the works. A complaint for sum of
money was filed by Atty. Budoy, a former associate of
Tomas and Benedicto Law Offices, on behalf of Allied
against St. Ivan’s. St. Ivans, lost the case and was held
liable to Allied.
Thereafter, St. Ivan’s filed a disbarment complaint
against Atty. Budoy. It claimed that while Atty. Budo
has established his own law office, an arrangement
was made whereby Tomas and Benedicto Law Offices
assign cases for him to handle, and that it can be
assumed that Tomas and Benedicto Law Offices
collaborate with Atty. Budo in the cases referred to
him, creating a conflict of interest. Rule on the
complaint with reasons. (2016 Bar)
A: I will rule in favor of St. Ivan’s and against Atty. Budoy.
St. Ivan’s was a client of Tomas and Benedicto Law Offices,
of which Atty. Budoy was an associate attorney. As such,
St. Ivan’s was also his client, because of the principle that
when a party hires a law firm, he hires all the lawyers
therein. Moreover, Atty. Budoy was in a position to know
the information transmitted by St. Ivan’s to the firm.
“There is conflict of interest if the acceptance of a new
retainer will require the lawyer to perform a act which
will injuriously affect his new client in any matter in which
he represents him, and also whether he will be called upon
in his new relation to use against his first client any
knowledge acquired during their relation” (Hornilla v.
Salunat, 453 Phil. 108, July 01, 2003).
“As such, a lawyer is prohibited from representing new
clients whose interests oppose those of a former client in
any manner, whether or not they are parties in the same
action or on totally unrelated cases. The prohibition is
founded on the principles of public policy and good taste”
(Anglo v. Atty. Valencia, A.C. No. 10567, Feb. 25, 2015).
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 Bar)
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
interests. When Mrs. F consulted me and I give her
professional advice, a lawyerclient relationship was
created between us, regardless of the fact that I was not
compensated for it. It would involve a conflict of interests
if I will handle the case for the opposite party on the same
matter (Hilado v. David, 84 Phil. 571).
Q: Explain your understanding of “Conflict of
Interests” under the Code of professional
Responsibility. (2009, 1997, 1993 Bar)
A: A lawyer is prohibited from representing conflicting
interests. There is conflict of interests within the context
of the rule when, on behalf of client, it is the lawyer’s duty
to contend for that which his duty to another client
requires him to oppose. Another test is whether the
acceptance of a new lawyer-client relation will prevent a
lawyer from discharging fully his duty of undivided fidelity
and loyalty to another client or invite suspicion of
unfaithfulness or double-dealing in the performance
thereof.
1
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 to permit afterwards
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 doubledealing for only then can litigants be
encouraged 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 Bar)
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 which prohibits 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: R is a retained counsel of ABC BankErmita Branch.
One day, his balik bayan compadre, B, consulted him
about his unclaimed deposits with the said branch of
ABC Bank, which the bank had refused to give to him
claiming that the account had become dormant. R
agreed to file a case against the bank with the
Regional Trial Court (RTC) of Manila. B lost the case,
but upon the advice of R, he no longer appealed the
decision. B later discovered that R was the retained
counsel of ABC Bank-Ermita Branch.
Does B have any remedy? Discuss the legal and ethical
implications of the problem. (2014 Bar)
A: Atty. R clearly violated the rule against representing
conflicting interests (Rule 15.03, Code of Professional
Responsibility). B may file an action to set aside the
judgment on the theory that if a lawyer is disqualified
from appearing as counsel for a party on account of
conflict of interests, he is presumed to have impropriety
and prejudicially advised and represented the party in the
conduct of the litigation from beginning to end. He may
also file an action for damages against Atty. R, aside from
an administrative complaint due to his misconduct. He
was prejudiced by the adverse decision against him, which
he no longer appealed upon the advice of Atty. R.
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 Bar)
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). 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 Bar)
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
interests. Decide. (1991 Bar)
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 interests. If the two cases however are related wherein
the attorney has knowledge of the evidence of C then there
is conflict of interests. 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 interests 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
Bar)
A: A lawyer may refuse to accept the representation of a
client if he labors under conflict of interests between him
and the prospective client or between a present client and
the prospective client (Code of Professional Responsibility,
Canon 14, Rule 14.03). It is unprofessional for a lawyer to
represent conflicting interests, except by express consent
of all concerned given after full disclosure of the fact
(Canons of Professional Ethics, Canon 6). A lawyer cannot
accept a case against a present client either in the same
case or in a totally unrelated case.
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? (2006, 1999 Bar)
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 v. Cedo, 243 SCRA 1). It does not matter that
the Pilipinas Bank branch in Quezon City is not 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 Bar) A: The options
available to Atty. Anama are:
1. 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.
2. 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: 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
interests? Explain. (2005 Bar)
A: There is a conflict of interests when a lawyer represents
inconsistent interests. This rule covers not only cases in
1 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 interests if the new
retainer will require the attorney to perform an act which
will injuriously affect his first client in any matter in which
he represents him and also whether 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). 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 interests. The employment of a law firm
is equivalent to the retainer of the memberstherof. It does
not matter if Atty. Japzon never handled a case of the
Kapamilya Corporation when she was still with the XXX
law firm.
Representation with zeal within legal
bounds
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 Bar)
A: Atty. Derecho was right in terminating the lawyer-client
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 (Code of
Professional Responsibility, Canon 19). 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: What are the three (3) tests to determine conflict of
interest for practicing
lawyers? Explain each briefly. (2009 Bar)
A:
1. When in representation of one client, a lawyer is
required to fight for an issue or claim, but is also duty
bound to oppose it for another client;
2. When the acceptance of the new retainer will require
an attorney to perform an act that may injuriously
affect the first client or when called upon in a new
relation to use against the first client any knowledge
acquired through their professional
connection;
When the acceptance of a new relation would prevent the
full discharge of an attorney’s duty to give undivided
fidelity and loyalty to the client or would invite suspicion
of unfaithfulness or double-dealing in the performance of
that duty (Northwestern
University v. Arquillo, 415 SCRA 513 [2005]).
CLIENT’S MONEYS AND PROPERTIES
Fiduciary relationship
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 Bar)
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 docket fees for the
filing 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 filing fees will render him liable
for misappropriation, which is a ground for disbarment.
Client’s moneys and properties; Fidelity to client’s
cause
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. (2009, 2007 Bar)
A: The decision of the Supreme Court in the case of
Hernandez v. Go (450 SCRA 1) 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 hat 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.
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.
Delivery of Funds
Q: D was charged with estafa by C before the barangay
for misappropriating the proceeds of sale of jewelry
on commission. In 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
Bar)
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. Ctoco, 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: Marlyn, a widow engaged the services of Atty.
Romanito in order to avert the foreclosure of several
parcels of land mortgaged by her late husband to
several creditors. Atty. Romanito advised the widow
to execute in his favor deeds of sale over the
properties, so that he could sell them and generate
funds to pay her creditors. The widow agreed. Atty.
Romanito did not sell the properties, but paid the
mortgage creditors with his own funds, and had the
land titles registered in his name. Atty. Romanito
succeeds in averting the foreclosure. Is he
administratively liable? Reasons. (2009
Bar)
A: Yes, Atty. Romanito is administratively liable. The basic
facts in this case are the same as the facts in Hernandez v.
Go (450 SCRA 1 [2005]), where the Supreme Court found
the lawyer to have violated Canons 16 and 17 of the Code
of Professional Responsibility, and disbarred him. The
Supreme Court held that a lawyer’s acts of acquiring for
himself the lots entrusted to him by his client are, by any
standard, acts constituting gross misconduct.
The lawyer in that case was disbarred.
FIDELITY TO CLIENT’S CAUSE
Competence and diligence
a. Adequate protection
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 diligence
which the Code of Professional Responsibility
expected of him? Explain. (2000 Bar)
A: No. It is the duty of 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 of 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 or misunderstanding as
to the nature of the charges to which his client has pleaded
guilty. Atty. A has fallen short of this required conduct.
1
b. Negligence
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 suspicion. However,
Atty. Nilo, desirous of pushing through with the
transaction because of the high notarial fee promised
to him, told Nene that the title was alright and that she
should not worry since he is an attorney and that he
knew Maneng well. He notarized the Deed of Sale and
Nene paid Maneng P 108,000.00. 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 Bar)
A: Yes. Atty. Nilo is guilty of gross negligence in protecting
the interests of his client. A lawyer shall not neglect a legal
matter entrusted to him and his negligence in connection
therewith shall render him liable (Rule 18.03, Code of
Professional Responsibility). Worse, he was negligent
because he placed his own interest in receiving a high
notarial fee over and above the Interest of his client. In the
case of Nadayag 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 avowed
duties
of a worthy member of the Bar."
Q: May a lawyer be held liable for damages by his
client for the lawyer’s failure to file the necessary
pleadings to prosecute the client’s case and as a result
of which the
client suffered damages? (2014 Bar)
A: Yes, he may be held liable. Rule 18.03 of the Code of
Professional Responsibility provides that “a lawyer shall
not neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him
liable.” But attorney-client relationship, want of
reasonable care and diligence, and injury sustained by the
client as the proximate result thereof, are the
prerequisites to the maintenance of an action for damages
against a lawyer.
Q:
a. State the rule on whether a client is bound by the
mistake of his counsel.
b. On account of his mistake, is counsel liable to his
client for damages? Explain.
(2002 Bar)
A:
a. A client is bound by the mistakes of his lawyer
[Cabales v. fiery, 94 SCRA 374 (1979); Valerio v.
Secretary of Agriculture, 7
SCRA 719(1963)]. However, when the lawyer has
practically sold his client down the river or when the
negligence is so gross that the client was deprived of
due process, the client is not bound by the negligence
of the lawyer [PHHC v. Tiongco, 12 SCRA 471(1964);
San Miguel Corp. v. Laguesma, 236 SCRA 595(1994)].
b. 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 exercised due diligence, the client
under the facts and the law would have succeeded in
recovering from the adverse party or in resisting the
claim of the latter.
c. Collaborating counsel
Q: May a client hire additional counsel as collaborating
counsel over and above the objection of the original
counsel? (2014,
1989 Bar)
A: Yes, the client is entitled to have as many lawyers as he
can afford. Professional courtesy, however, demands that
a lawyer retained as a collaborating counsel should at
least communicate with the original counsel and should at
least communicate with the original counsel before
entering his appearance. On the part of the original
counsel, he should not look at the employment of a
collaborating counsel as a loss of confidence in him.
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 Bar)
A: A, B, and C may handle the situation in the following
manner:
a. "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. "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 into the case (Canon 7, Canons of
Professional Ethics).
c. "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.
REPRESENTATION WITH ZEAL WITHIN LEGAL
BOUNDS
Use of fair and honest means
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 a lawyer go in advocating,
supporting and defending the cause of his client in a
criminal case filed against the latter? (2003, 1997 Bar)
A: The right to counsel must be more than just the
presence of a lawyer in the courtroom or the mere
propounding of 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. Bemas, 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).
Client’s fraud
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 justly
due him? (2001 Bar)
A: A lawyer who has received information that his client
has, in the course of the
representation, perpetrated a fraud upon a person or
tribunal, shall promptly call upon the client to rectify the
same, and failing which he shall terminate the relationship
with such client in accordance with the Rules of Court
(Rule 19.02, Code of Professional Conduct).
Attorney’s Fees
a. Contingency fee arrangements
Q: For services to be rendered by Atty. Hamilton as
counsel for Gener in a civil case involving the recovery
of the ownership and possession of a parcel of land
with an area of 5,000 square meters, the two of them
agreed on a success fee for Atty. Hamilton of
P50,000.00 plus 500 square meters of the land. The
trial court ultimately rendered judgment in favor of
Gener, and the judgment became final and executory.
After receiving P50,000.00, Atty. Hamilton demanded
the transfer to him of the promised 500 square meters
of the land.
Instead of complying, Gener brought an
administrative complaint charging Atty. Hamilton
with violation of the Code of Professional
Responsibility and Art. 1491(5) of the Civil Code for
demanding the delivery of a portion of the land
subject of the litigation.
Is Atty. Hamilton liable under the Code of Professional
Responsibility and the Civil Code? Explain your answer.
(2017, 2010 Bar)
A: No. Atty. Hamilton is not liable for violation of the Code
of Professional Responsibility and the Civil Code. The
agreement on a success fee of P50,000.00 and 500 sq. m.
of the land involved in the case is valid. The parties
entered into a contingent fee contract that is allowed
under Canon 20, Rules 20.01 of the Code of Professional
Responsibility and Canon 13 of the Code of Professional
Ethics.
A contract for a contingent fee is not covered by Article
1491 because the transfer or assignment of the property
in litigation takes effect only after the finality of a
favorable judgment (Director of Lands v. Ababa, G.R. No.
L-26096 February 27, 1979).
Q: The spouses Manuel were the registered owners of
a parcel of land measuring about 200,000 square
meters. On May 4, 2008, the spouses Manuel sold the
land for P3,500,000.00 to the spouses Rivera who
were issued a certificate of title for said land in their
names. Because the spouses Rivera failed to pay the
balance of the purchase price for the land, the spouses
Manuel, through Atty. Enriquez, instituted an action
on March 18, 2010 before the Regional Trial Court
(RTC) for sum of money and/or annulment of sale,
docketed as Civil Case No. 1111. The complaint in Civil
Case No. 1111 specifically alleged that Atty. Enriquez
would be paid P200,000.00 as attorney’s fees on
contingent basis. The RTC subsequently promulgated
its decision upholding the sale of the land to the
spouses Rivera. Atty. Enriquez timely filed an appeal
on behalf of the spouses Manuel before the Court of
Appeals. The appellate court found for the spouses
1 Manuel, declared the sale of the land to the spouses
Rivera null and void, and ordered the cancellation of
the spouses Rivera’s certificate of title for the land.
The Supreme Court dismissed the spouses Rivera’s
appeal for lack of merit. With the finality of judgment
in Civil Case No. 1111 on October 20, 2014, Atty.
Enriquez filed a motion for the issuance of a writ of
execution.
Meanwhile, the spouses Rivera filed on November 10,
2014 before the RTC a case for quieting of title against
the spouses Manuel, docketed as Civil Case No. 2222.
The spouses Manuel, again through Atty. Enriquez,
filed a motion to dismiss Civil Case No. 2222 on the
ground of res judicata given the final judgment in Civil
Case No.
1111.
Pending the resolution of the motion to dismiss in
Civil Case No. 2222, the RTC granted on February 9,
2015 the motion for issuance of a writ of execution in
Civil Case No. 1111 and placed the spouses Manuel in
possession of the land. Atty. Enriquez, based on a
purported oral agreement with the spouses Manuel,
laid claim to ½ of the land, measuring 100,000.00
square meters with market value of P1,750,000.00, as
his attorney’s fees.
Atty. Enriquez caused the subdivision of the land in
two equal portions and entered into the half he
appropriated for himself. Based on the professional
and ethical standards for lawyers, may Atty. Enriquez
claim ½ of the land as his contingency fee? Why?
(2015
Bar)
A: Atty. Enriquez may not claim ½ of the land as his
contingency fee. In the first place, a lawyer cannot charge
his client a contingent fee or a percentage of the amount
recovered as his fees in the absence of an express contract
to that effect (Corpus v. Court of Appeals, G.R. No. L-40424,
June 30, 1980, 98 SCRA 424). There is no such contract in
this case. As a matter of fact, the claim of a purported oral
agreement for a contingency fee of ½ of the land is
contradicted by the allegation in the Complaint in Civil
Case No. 1111 for a contingency fee of P200,000.00 only.
Moreover, the amount claimed as contingent fee appears
to be excessive and unreasonable. The issue involved in
the case was simple and did not require extensive skill,
effort and research on the part of Atty. Enriquez.
Furthermore, Atty. Enriquez caused the division of the
land and appropriate one half thereof, pending resolution
of the motion to dismiss in Civil Case No. 2222. This
constitutes a violation of Article 1491 of the New Civil
Code, because the case in which the property is involved
has not yet been terminated (The Conjugal Partnership of
the Spouse Cadavedo v. Victorino T. Lacaya, G.R. No.
173188, January 15, 2014).
Q: Atty. CJ handled the case for plaintiff GE against
defendant XY in an action for damages. Judgment was
rendered for plaintiff GE. When a writ of execution
was issued, the sheriff levied on a 400 square meter
lot of defendant XY. Pursuant to their contingent fee
contract, plaintiff GE executed a deed of assignment in
favor of Atty. CJ of one-half of the lot. Atty. CJ accepted
the assignment.
Is the contract for contingent fee valid?
Explain. (2002 Bar)
A: Contract for contingent fee is a contract wherein the
attorney’s fee, usually a percentage of what may be
recovered in the action, is made to depend upon the
success of the lawyer in enforcing or defending his client’s
right. It is a valid contract, unlike a champertous contract
which is invalid because the lawyer undertakes to
shoulder the expenses of the litigation. However, the
amount of the fee agreed upon may be reduced by the
courts if it should be unconscionable. Fifty percent (50%)
of what the client might recover may or may not be
unconscionable depending on the factors to be considered
in determining the reasonableness of an attorney's fee.
Q: Atty. A’s services as a lawyer were engaged by B to
recover from C certain construction materials and
equipment. Because B did not have the means of
defray the expenses of litigation, he proposed to Atty.
A that he (A) shoulders all expenses of the litigation
and he (B) would pay him (A) a portion of the
construction materials and equipment to be
recovered as compensation for his professional
services.
May Atty. A correctly agree to such arrangement?
(1999 Bar)
A: No, Atty. A may not correctly agree to such an
agreement.
Such an arrangement would constitute a champertous
contract which is considered void due to public policy,
because it would make him acquire a stake in the outcome
of the litigation which might lead him to place his own
interest above that of the client (Bautista v. Gonzales, 182
SCRA 151). A champertous contract is one in which a
lawyer undertakes to prosecute a case, and bear all the
expenses in connection therewith without right of
reimbursement, and will be paid his fees by way of a
portion of the property or amount that may be recovered,
contingent on the success of his efforts. It is different from
a contingent fee contract, which is valid, in which the
lawyer will also be paid depending on the success of his
efforts, but he does not undertake to shoulder all the
expenses in the case. He may advance such expenses but
always subject to reimbursement by his client.
Q: Chester asked Laarni to handle his claim to a
sizeable parcel of land in Quezon City against a well-
known property developer on a contingent fee basis.
Laarni asked for 15% of the land that may be
recovered or 15% of whatever monetary settlement
that may be received from the property developer as
her only fee contingent upon securing a favorable final
judgment or compromise settlement. Chester signed
the contingent fee agreement.
Assume the property developer settled the case
after the case was decided by the Regional Trial
Court in favor of Chester for P1 Billion. Chester
refused to pay Laarni PI50 Million on the ground
that it is excessive. Is the refusal justified?
Explain. (2008 Bar)
A: The refusal of Chester to pay is unjustified. A contingent
fee is impliedly sanctioned by Rule 20.01 (f) of the CPR. A
much higher compensation is allowed as contingent fees
in consideration of the risk that the lawyer will get nothing
if the suit fails. In several cases, the Supreme Court has
indicated that a contingent fee of 30% of the money or
property that may be recovered is reasonable. Moreover,
although the developer settled the case, it was after the
case was decided by the Regional Trial Court in favor of
Chester, which shows that Atty. Laarni has already
rendered service to the client.
ALTERNATIVE ANSWER:
Chester’s refusal to pay Atty. Laarni P150 million as
attorney’s fees on the ground that it is excessive, is
justified. In the case of Sesbreno v. Court of Appeals (245
SCRA 30 [1995]), the Supreme Court held that “contingent
fee contracts are under the supervision and close scrutiny
of the court in order that clients may be protected from
unjust charges” and that “its validity depends on a large
measure on the reasonableness of the stipulated fees
under the circumstances of each case.” Also, “stipulated
attorney’s fees are unconscionable whenever the amount
is by far so disproportionate compared to the value of the
services rendered as to amount to fraud perpetuated
against the client.” Considering the circumstances that the
case was decided by settlement of the property developer,
the attorney’s fee of P150 Million would be
unconscionable.
b. Attorney’s Liens
Q: M engaged the services of Atty. D to prosecute his
annulment of marriage case in the Regional Trial
Court (RTC). After a long-drawn trial, Atty. D was able
to secure a favourable judgment from the court.
Unfortunately, M failed to pay in full the stipulated
attorney’s fees of Atty. D. How can Atty. D collect his
fees from M? Discuss fully. (2014 Bar)
A: He can allot his fees either by filing a motion in the
annulment of marriage case that he handled, and to order
M to pay the same, or he can file a separate action for the
recovery of his attorney’s fees. Of the two, the first is
preferable because the judge in the annulment case will be
in a better position to evaluate the amount and value of his
services. In the meantime, he may avail of the retaining
lien, which is to retain the moneys and properties of M in
his possession until he is paid for his services, or a
charging lien, which is to charge the money judgment in
the case for the payment of his fees.
Q:Define an attorney's retaining lien. (2000,
1998 Bar)
A: A retaining lien is the right of an attorney to retain the
funds, documents, and papers of his client which have
lawfully come into his possession until his lawful fees and
disbursements have been paid, and to apply such funds to
the satisfaction thereof (Sec. 37, Rule 138, Rules of Court).
Q: Upon being replaced by Justice C, Atty. B, the former
counsel of the parents of the victims of the OZONE
Disco tragedy, was directed to forward all the
documents in his possession to Justice C. Atty. B
refused, demanding full compensation pursuant to
their written contract. Sensing that a favorable
Judgment was forthcoming, Atty. B filed a motion in
court relative to his attorney’s fees, furnishing his
former clients with copies thereof.
Is Atty. B legally and ethically correct in refusing to
turn over the documents and in
filing the motion? Explain. (1998 Bar)
A: Atty. B is legally and ethically correct in refusing to turn
over the documents. He is entitled to a retaining lien
which gives him the right to retain the funds, documents
and papers of his client which have lawfully come to his
possession until his lawful fees and disbursement have
been paid (Sec. 37, Rule 138. Rules of Court. Rule 16.03,
Code of Professional Responsibility). Likewise, he is legally
and ethically correct in filing a motion in court relative to
his fees. He is entitled to a charging lien upon all
judgments for the payment of money, and executions
issued in pursuance of such judgments, which he has
secured in a litigation of his client, from and after the time
when the records of the court rendering such judgment or
issuing such
execution (ibid.)
Q: Harold secured the services of Atty. Jarencio to
collect from various debtors. Accordingly. Atty.
Jarencio filed collection cases against the debtors of
Harold and in fact obtained favorable Judgments in
some. Atty. Jarencio demanded from Harold his
attorney’s fees pursuant to their agreement but
1 Harold refused. When one of the defendants paid his
indebtedness of
20,000.00 through Atty. Jarencio, the latter refused to
turn over the money to Harold; instead, Atty. Jarencio
applied the amount to his attorney’s fees having in
mind the provisions of the Civil Code on legal
compensation or set-off to justify his act.
Was Atty. Jarencio correct in refusing to turn over to
his client the amount he collected? Discuss fully.
(1995 Bar)
A: A lawyer has a retaining lien which entitled him to
retain possession of a client’s document, money or other
property which come into the hands of the attorney
professionally, until the general balance due him for
professional services is paid. Under Rule 138, Section 37 of
the Rules of Court, the attorney cannot be compelled to
surrender the documents in his possession without prior
proof that his fees have been duly satisfied.
However, Atty. Jarencio here cannot appropriate the sum
of 20,000.00. If there is a dispute between him and Harold
as to the amount of the fees that he can collect, what he
should do if Harold disputes the amount of the fees he is
entitled, he must file an action for the recovery of his fee
or record a charging lien so that the court can fix the
amount to which he is entitled.
Q: The vendor filed a case against the vendee for the
annulment of the sale of a piece of land.
Assume the vendee obtained a summary judgment
against the vendor. Would the counsel for the
defendant vendee be entitled to enforce a charging
lien? Explain.
(2008 Bar)
A: A charging lien, to be enforceable as security for
payment of attorney’s fees, requires as a condition sine
qua nona judgment for money and execution in pursuance
of such judgment secured in the main action by the
attorney in favor of his client (Metropolitan Bankv. Court
of Appeals,181 SCRA 367 [1990]). A summary judgment
against the vendor in this case only means that his
complaint was dismissed. This is not a judgment for
payment of money, hence, a charging lien cannot attach.
However, if the judgment should include a money
judgment in favor of the vendee on his counterclaim, a
charging lien can properly be enforced.
Q: Differentiate “retaining lien” from “charging lien”
(2016 Bar)
A: A retaining lien gives the lawyer the right to retain the
funds, documents and papers of the client which have
lawfully come into his possession, until his lawful fees and
disbursements have been paid. A charging lien is a lien
upon all judgments for payment of sum of money and
executions thereof, to ensure payment of his fees and
disbursements in the said case.
A retaining lien is a passive lien; the lawyer is not required
to perform any act except to hold on to the client’s funds,
documents and papers, until his fees and disbursements
are paid. A charging lien is an active lien; the lawyer is
required to file a motion in court, with copy served on the
adverse party, to have a statement of his claim to such fees
and disbursements charged or attached to the decision in
such case and executions thereof.
A retaining lien is general lien; it may be resorted to in
order to secure payment of the lawyer’s fees in all the
cases he has handled and services he has rendered to the
client. A charging lien is a special lien; it can be utilized for
the purpose of collecting only the unpaid fees and
disbursements of the lawyer in the case where the
judgment for a sum of money may be secured.
c. Fees and controversies with clients (Quantum
Meruit)
Q:
a. Explain the doctrine of quantum meruit in
determining the amount of attorney’s fees.
b. Identify the factors to be considered in
determining attorney’s fees on a quantum meruit
basis. (2015, 2014,
2007, 1998 Bar)
A:
a. Quantum meruit means as much as the services of a
lawyer are worth. Recovery of attorney’s fees on the
basis of quantum meruit is authorized when (1) there
is no express contract for the payment of attorney’s
fees; (2) although there is a contract for attorney’s
fees, the fees stipulated are found unconscionable by
the court; (3) the contract for attorney’s fees is void
due to formal defects of execution; (4) the lawyer was
not able to finish the case for justifiable cause; (5) the
lawyer and the client disregard the contract for
attorney’s fees; and (6) the client dismissed his
counsel or the latter withdrew therefrom, for valid
reasons.
b. The factors are those set in Rule 20.01 of the Code of
Professional Responsibility (CPR), as follows:
i. the time spent and the extent of the services
rendered or required;
ii. the novelty and difficulty of the questions
involved;
iii. the importance of the subject
matter;
iv. the skill demanded;
v. the probability of losing other employment as a
result of
acceptance of the proffered case;
vi. the customary charges for similar services and
the schedule of fees of the IBP chapter to which
he belongs; vii. the amount
involved in the controversy
and the benefits resulting to the
client from the service;
viii. the contingency or certainty
of compensation;
ix. the character of the employment, whether
occasional or established; and
x. the professional standing of the lawyer.
Q: Define champerty. (2017, 2000 Bar)
A: Champerty is any agreement by a lawyer to conduct the
litigation in his own account, to pay the expenses thereof
or to save his client therefrom and to receive as his fee a
portion of the proceeds of the judgment. It is contrary to
public policy as it violates the fiduciary relationship
between the lawyer and his client (Spouses Cadavedo v.
Lacaya, G.R. No. 173188, January 15, 2014).
Q: A inherited a parcel of land situated in Batasan Hills
which is occupied by informal settlers. He wants to
eject the occupants, but he has no financial means to
pursue the ejectment case. He contracted the services
of Atty. B, who agreed to defray all the expenses of the
suit on the condition that he will be paid one-half
(1/2) of the property to be recovered as his
compensation.
What is the kind of attorney’s fees? Can Atty. B enforce
this contract against A? What are the respective
remedies relative to the collection of attorney’s fees, if
any, of A and Atty. B against each other? (2014,
2010, 1988 Bar)
A: This is a champertous fee agreement because Atty. B
agreed to defray all the expenses of the action and will be
paid only if he is successful in recovering A’s property.
Atty. B cannot enforce it because it is contrary to public
policy and the ethics of the legal profession. The remedy of
A is to file an action to have the agreement declared null
and void, or simply to refuse to pay attorney’s fees to Atty.
B on the basis of the said agreement. On the other hand,
Atty. B will still be entitled to collect attorney’s fees on a
quantum meruit basis. He may bring an action to collect
such fees.
Q: Discuss the propriety of a lawyer filing a suit
against his client concerning his fees.
(1998 Bar)
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 to prevent imposition, injustice or
fraud.” The legal profession is not a moneymaking 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
suing his clients.
d. Concepts of Attorney’s fees Extraordinary concept
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 240square-
meter 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 accepts the 240 squaremeter lot?
(1997 Bar)
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, interests, rebate of forwarding
allowance or other compensation whatsoever related to
his professional employment from anyone other than the
client.
There 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
interests (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).
ALTERNATIVE ANSWER:
The gift of the real estate company does not come from the
adverse party, hence, there is no violation of the lawyer is
duty of loyalty to his clients. The property given was not
his client's property involved in the litigation. Hence, it
does not violate Article 1491 of the Civil Code. The
lawyer's acceptance of the gift is proper. However, it
would be better if he informs his client.
Q: Deciding a case for malicious prosecution, Judge
Sales awarded attorney's fees and expenses of
1 litigation, in addition to exemplary damages, to the
plaintiff.
a. Did the judge act within his discretion in awarding
attorney's fees?
b. As counsel for the plaintiff, are you entitled to
receive the attorney's fees thus awarded in
addition to your
stipulated legal fees? (1994 Bar)
A:
a. A party may recover attorney's fees in cases of
malicious prosecution against him in an action for
damages against the party responsible therefore (Art.
2208 (3), Civil Code). But he must prove not only that
he was acquitted in the criminal action, but that the
person who charged him knowingly made a false
statement of facts to induce the prosecutor to
prosecute or that the institution of the criminal action
was prompted by a sinister design to vex or humiliate
him and to cast upon him dishonor and disgrace.
b. No. Attorney’s fees in the concept or as an item of
damages is an indemnity for damages sustained by the
client, and belongs to him.
Q: A, after taking his oath as a lawyer in 1985, was
maliciously charged with the crime of seduction by
Amor, his former girlfriend. Her parents instigated the
filing of the case. A appeared for and defended
himself. In the decision acquitting him, the court
explicitly stated that he was a victim of malicious
prosecution. A then filed a complaint for damages and
attorney’s against Amor and her parents. A likewise
appeared for himself in the case. Can her recover
attorney’s fees? (1991 Bar)
A:No. Attorney A is not entitled to attorney's fees. He may,
however, be entitled to attorney’s fees in the form of
damages upon proof of bad faith of the defendant and a
definite ruling be made by the court on the claim.
PRESERVATION OF CLIENT’S CONFIDENCES
Prohibited disclosures and use
Q:
A. Brando & Luzon Law Office had a retainer
agreement with Gregory, a businessman with
shady connections. Gregory was recently charged
in the RTC in Manila with money laundering in
 relation to an illegal drugs syndicate using Cable
Co., his holding company, as its money-laundering
conduit. The members of the Brando & Luzon Law
Office assigned to handle Gregory's account,
including yourself, were implicated in the money
laundering case for their role in the incorporation
of Cable Co. and in the active management of its
business affairs.
In a bid to fortify the case against Gregory and the
others, the public prosecutor approaches you (as the
least guilty person who will qualify for a discharge as
a state witness) and offers to make you a state
witness. Should you accept the offer? Explain your
answer.
B. Under the facts of the preceding question, assume
that you had resigned from the Brando & Luzon
Law Office prior to the filing of the money
laundering case against Gregory and the others,
and that you were not implicated in the case.
However, you had assisted in handling the Cobra
Co. account during your time with the law firm.
Cobra Co. was largely owned by Cable Co.
The public prosecutor handling the case against
Gregory and the others asks you, as a former
member of the Brando & Luzon Law Office, to help
strengthen the case for the Government, and hints
that you may be implicated in the case if you do
not cooperate. What is your legal and ethical
course of action? Explain your answer. (2017,
2013 Bar)
A:
A. No. The information acquired involving the criminal
case against Gregory is covered by the privileged
communications rule. Rule 15.02of the Code of
Professional Responsibility provides that “A lawyer
shall be bound by the rule on privilege communication
in respect of matters disclosed to him by a prospective
client.” There being a lawyer-client relationship
between the parties, the lawyer cannot serve as a state
witness and disclose the information obtained from
his client.
B. Decline to testify against the defendants and to
provide evidence in the case as the attorney-client
privilege lasts even beyond the termination of the
relationship.
The duty of a lawyer to preserve his client’s secrets
and confidence outlasts the termination of the
attorney-client relationship, and continues even after
the client’s death (Mercado v. Vitriolo, A.C. No. 5108,
May 26, 2005).
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 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 that Atty. C may not
be called as a 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 answered
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 Bar)
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.
COMMENT:There seems to be a typographical error in the
last sentence which refers to Atty. A. Perhaps, the
examiner intended to refer to simply A or to his counsel
Atty.D. It is recommended that the use by the candidate of
Atty. A should not detract from the appreciation of his
answer.
Q: Christine was appointed counsel de oficio for Zuma,
who was accused of raping his own daughter. Zuma
pleaded not guilty but thereafter privately admitted to
Christine that he did commit the crime charged.
Can Christine disclose the admission of Zuma to the
court? Why or why not? (2008
Bar)
A: Christine cannot disclose the admission of Zuma to the
Court. If she does so, she will violate her obligation to
preserve confidences or secrets of her client (Canon 21,
Rule 21.02, CPR). The privileged communication between
lawyer and client may be used as a shield to defend crimes
already committed.
Q: When Atty. Romualdo interviewed his client,
Vicente, who is accused of murder, the latter
confessed that he killed the victim in cold blood.
Vicente also said that when he takes the witness
stand, he will deny having done so. Is Atty. Romualdo
obliged, under his oath as lawyer, to inform the judge
(a) that his client is
guilty? (2009 Bar)
A: Atty. Romualdo cannot reveal to the judge that Vicente
is guilty. He is bound to keep what Vicente told him in
confidence, because that is an admission of a crime
already committed.
Disclosure, when allowed
Q: When Atty. Romualdo interviewed his client,
Vicente, who is accused of murder, the latter
confessed that he killed the victim in cold blood.
Vicente also said that when he takes the witness stand,
he will deny having done so. Is Atty. Romualdo
obliged, under his oath as lawyer, to inform the judge
that (b) his client will commit perjury
on the witness stand? Explain. (2009 Bar)
A: Atty. Romualdo can reveal to the judge that Vicente will
commit perjury on the witness stand. This is already a
revelation of a crime still to be committed, and that lies
outside the mantle of privileged communication.
Q: Atty. Serafin Roto is the Corporate Secretary of a
construction corporation that has secured a multi-
million infrastructure project from the government. In
the course of his duties as corporate secretary, he
learned from the company president that the
corporation had resorted to bribery to secure the
project and had falsified records to cut implementing
costs after the award of the project.
The government filed a civil action to annul the
infrastructure contract and has subpoenaed Atty. Roto
to testify against the company president and the
corporation regarding the bribery. Atty. Roto moved
to quash the subpoena, asserting that lawyerclient
privilege prevents him from testifying against the
president and the corporation.
Resolve the motion to quash. (2013 Bar)
A: Motion denied. The motion should be denied because
Atty. Roto did not learn of the bribery and falsification in
connection with a lawyerclient relation. Being a corporate
secretary does not create a lawyer-client relation because
membership to the Bar is not a requirement to perform
the functions of a corporate secretary. Consequently, Atty.
Roto does not owe any obligation of confidentiality to the
corporation.
Atty. Roto may be compelled to testify. As an officer of the
court, a “lawyer shall exert every effort and consider it his
1 duty to assist in the speedy and efficient administration of
justice” (Code of Professional Responsibility, Canon 12).
Furthermore, “a lawyer owes candor, fairness and good
faith to the court” (Ibid., Canon 10).
ALTERNATIVE ANSWER:
Motion Granted.It is true that being a corporate secretary
does not necessarily constitute a lawyer-client
relationship. However, Atty. Roto may be considered in
the practice of law if part of his duties as a corporate
secretary is to give legal advice to or prepares legal
documents for the corporation. Thus a lawyer-client
relationship may have been constituted between Atty.
Roto and the corporation. Consequently, it is his duty as an
attorney “to maintain inviolate the confidence, and at
every peril to himself, to preserve the secrets of his client”
(Rules of Court, Rule 138, Sec. 20, par. E, paraphrasing and
arrangement supplied).
Atty. Roto learned from the company president of the
bribery and falsification, while Atty. Roto was in the
course of his performance of his duties as corporate
secretary. Thus, he could not be examined on that matter
without the consent of his client. [Ibid., Rule 130, Sec.
24(b)].
Q: A mayor charged with Homicide engaged your
services as his lawyer. Since there is only one witness
to the incident, the mayor disclosed to you his plan to
kill the lone witness through a contrived vehicular
accident.
a. What are the moral and legal obligations of an
attorney to the mayor and to the authorities?
b. Should the killing push through and are you
certain that the mayor is the one responsible, are
you under obligation to disclose to the authorities
what was confided to you? Is this not a privileged
communication between client and
attorney? (1998 Bar)
A:
a. It is the duty of an attorney to divulge the
communication of his client as to his announced
intention to commit a crime to the proper authorities
to prevent the act or to protect the person against
whom it is threatened.
b. Public policy and the lawyer's duty to counsel
obedience to the law forbid that an attorney should
assist in the commission of a crime or permit the
 relation of attorney and client to conceal a
wrongdoing. He owes it to himself and to the public to
use his best efforts to restrain his client from doing
any unlawful act and if, notwithstanding his advise, his
client proceeds to execute the illegal deed, he may
disclose it or be examined as to any communication
relating thereto. There is privileged communication
only as to crimes already committed before its
communication to the lawyer.
Q: In a prosecution for murder against a ranking army
officer, the latter engaged the services of Atty. Carlos
Malilin, a wellknown trial lawyer, to whom the officer
in one of their conferences disclosed a plan to
“eliminate” or “salvage”— i.e., kill or otherwise cause
to disappear— the only witness, a fellow military
officer, through a contrived traffic or highway
accident.
a. What are the legal and moral obligations of Atty.
Carlos Malillin to his client and to the authorities,
under the given circumstances?
b. Should the planned “accident” take place and the
only witness for the prosecution be killed as a
result, is Atty. Carlos Malillin under any obligation
to disclose to the authorities the plan that his
client had mentioned to him as above mentioned?
Reasons. (1988,
1987 Bar)
A:
a. Attorney Malillin has the moral and legal obligation to
advise the army officer not to execute his plan. If the
accused army officer does not abide by his advise,
Atty. Malillin should withdraw from the case.
b. Atty. Malillin has the obligation to testify in said case if
he is called upon by the Court to do so. The obligation
of the lawyer to keep the secrets of his client obtained
in the course of his employment covers only lawful
purposes.
Withdrawal of services
Q: Give three instances when a lawyer is allowed to
withdraw his/her services.
(2015, 1997, 1988 Bar)
A: (Any three of the following:)
1. When the client pursues an illegal or immoral course
of conduct in connection with the matter he is
handling;
2. When the client insists that the lawyer pursue conduct
violative of these canons and rules;
3. When his inability to work with co-counsel will not
promote the best interest of the client;
4. When the mental or physical condition of the lawyer
renders it difficult for him to carry out the
employment effectively;
5. When the client deliberately fails to pay the fees for
the services or fails to comply with the retainer
agreement;
6. When the lawyer is elected or appointed to apublic
office.
7. Other similar cases.
Q: B hired Atty. Z to file a replevin case against C for an
agreed acceptance fee of P30,000.00 which was
evidenced by a written contract. After the complaint
was filed by Atty. Z, B terminated his services and
hired a new lawyer for the same amount of attorney’s
fees. How much attorney’s fees is Atty. Z entitled?
(2014
Bar)
A: Atty. Z is entitled to the entire amount of the attorney’s
fees agreed upon because his services were terminated by
the client without just cause (Sec. 26, Rule 138, Rules of
Court).
Q: Atty. Bravo represents Carlos Negar (an insurance
agent for Dormir Insurance Co.) in a suit filed by
insurance claimant Andy Limot who also sued Dormir
Insurance. The insurance policy requires the
insured/claimant to give a written notice to the
insurance company or its agent within 60 days from
the occurrence of the loss.
Limot testified during the trial that he had mailed the
notice of the loss to the insurance agent, but admitted
that he lost the registry receipt so that he did not have
any documentary evidence of the fact of mailing and of
the timeliness of the mailed notice. Dormir Insurance
denied liability, contending that the timely notice had
not been given either to the company or its agent. Atty.
Bravo’s client, agent Negar, testified and confirmed
that he never received any notice.
A few days after Negar testified, he admitted to Atty,
Bravo that he had lied when he denied receipt of
Limot’s notice, he did receive the notice by mail but
immediately shredded it to defeat Limot’s claim.
If you were Atty. Bravo, what would you do in light of
your client’s disclosure that he perjured himself when
he testified? (2013
Bar)
A: If I were Atty. Bravo I shall promptly call upon Carlo
Negar, my client, to rectify his perjured testimony by
recanting the same before the court.
Should he refuse or fail to do so I shall then terminate my
relationship with him (Code of Professional Responsibility,
Canon 19, Rule 19.02) stating that with his having
committed perjury he pursued an illegal conduct in
connection with the case (Ibid., Canon 22, Rule 22.01).
Since my client Limot refuses to forego the advantage thus
unjustly gained as a result of his perjury, I should
promptly inform the injured person or his counsel, so that
they may take the appropriate steps (Canons of
Professional Ethics, Canon 41).
Finally, as part of my duty to do no falsehood, nor consent
to the doing of any in court (Code of Professional
Responsibility, Canon 10, Rule 10.01, and the Attorney’s
oath). I shall file a manifestation with the court attaching
thereto the notice of termination as Limot’s counsel.
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 plaintiffs 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 Bar)
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. 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 Bar)
A: The ground for the 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. In this case,
the client has not failed to pay the lawyer’s fees or 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 right to refuse; that is part of his freedom of
contract.
1
Q:Atty. Jessa was the counsel for Mr. Nolan, a
cantankerous millionaire, in the latter's personal case.
Soon after the case was submitted for decision, Mr.
Nolan withdrew the files from Atty. Jessa and
informed her that he was engaging another lawyer. On
that same day, a copy of the decision in the case was
received by Atty. Jessa but she did not do anything
anymore with the decision. She did not also file a
withdrawal of her appearance. Mr. Nolan's new
counsel did not file any notice of his appearance. By
the time Mr. Nolan found out about the adverse
decision, his period to appeal had lapsed. Was the
service of the decision on Atty. Jessa still effective?
Explain your answer. (2017, 2012 bar)
A: Yes. The service of decision to Atty. Jessa is still
effective. Atty. Jessa is still considered the counsel of
record until his withdrawal of appearance has been
actually filed and granted.
Q: State the rule on (a) the right of the client to dismiss
his lawyer and (b) the prerogative of a lawyer to
withdraw as
counsel. (1998,1994, 1989 Bar)
A:
a. A client has the right to dismiss his lawyer at any time,
with or without just cause. The existence or non-
existence of just cause is material only for determining
the right of the lawyer to compensation for services
rendered. The client's right to terminate the lawyer's
services springs from the strictly personal and highly
confidential nature of the relationship between the
lawyer and the client. Once the client loses confidence
in his lawyer, he has the right to dismiss him.
On the other hand, the lawyer does not have an
unqualified right to withdraw as counsel. As an officer
of the court, he may not withdraw or be permitted to
withdraw as counsel if such withdrawal will work
injustice to a client or frustrate the ends of justice. A
lawyer may withdraw at any time with his client's
written consent. Without such consent, he may
withdraw his services only for good cause and upon
notice appropriate in the circumstances (Canon 22,
Code of Professional
Responsibility).
 SUSPENSION, DISBARMENT AND DISCIPLINE OF
LAWYERS (RULE 139-B, RULES OF COURT)
NATURE AND CHARACTERISTICS OF
DISCIPLINARY ACTIONS AGAINST LAWYERS
Sui generis
Q: Is the defense of Atty. R in a disbarment complaint
for immorality filed by his paramour P that P is in pari
delicto material or a ground for exoneration? Explain.
(2010
Bar)
A: The defense of in pari delicto is immaterial in an
administrative case which is sui generis. The
administrative case is about the lawyer’s conduct, not the
woman’s (Mortel v. Aspiras, 100 Phil. 586 [1956]; Po Cham
v. Pizarro, 467 SCRA 1 [2005]; Marjorie F. Samaniego v.
Atty.
Andrew V. Ferrer, 555 SCRA 1 [2008]).
Q: Arabella filed a complaint for disbarment against
her estranged husband Atty. P on the ground of
immorality and use of illegal drugs.
After Arabella presented evidence and rested her
case before the Investigating Commissioner of the
IBP Committee on Bar Discipline, she filed an
Affidavit of Desistance and motion to dismiss the
complaint, she and her husband having reconciled for
the sake of their children.
You are the Investigating Commissioner of the IBP.
Bearing in mind that the family is a social institution
which the State is dutybound to preserve, what will
be your action on Arabella’s motion to dismiss the
complaint? (2010 Bar)
A: I would still deny the motion to dismiss. The general
rule is that “no investigation shall be interrupted or
terminated by reason of the desistance, settlement,
compromise, restitution, withdrawal of the charges or
failure of the complainant to prosecute the same unless
the Supreme Court motu proprio or upon recommendation
of the IBP Board of Governors determines that there is no
compelling reason to continue with the proceedings. An
administrative investigation of a lawyer is sui generis,
neither a civil nor criminal proceeding. An affidavit of
desistance has no place in it.
Q: A proceeding for disbarment is considered sui
generis, explain briefly, giving at least five (5) reasons
in support of
your answer. (2002 Bar)
A: A disbarment proceeding is sui generis or a class by
itself, because of the following reasons:
a. It Is neither a civil nor a criminal proceeding;
b. Double jeopardy cannot be availed of as a
defense;
c. It can be initiated motu proprio by the
Supreme Court or by the IBP;
d. It can proceed regardless of interest or
lack of interest of the complainant;
e. It is imprescriptible;
f. It is confidential;
g. It is in itself due process.
Q: Alleging that Atty. Malibu seduced her when she
was only sixteen (16) years old, which resulted in her
pregnancy and the birth of a baby girl, Miss Magayon
filed a complaint for his disbarment seven years after
the alleged seduction was committed.
Atty. Malibu contended that, considering the period of
delay, the complaint filed against him can no longer be
entertained much less prosecuted because the alleged
offense has already prescribed.
Is Atty. Malibu’s contention tenable or not?
Reason briefly. (2017, 2004 Bar)
A: No. Atty. Malibu’s contention is not tenable. The
ordinary statute of limitations has no application to
disbarment proceedings (Calo v. Degamo, A.C. No. 516,
June 27, 1967). Disciplinary proceedings against lawyers
are sui generis. They are neither civil nor criminal
proceedings. Its purpose is not to punish the individual
lawyer but to safeguard the administration of justice by
protecting the court and the public from the misconduct of
lawyers and to remove from the profession of law persons
whose disregard of their oath of office proves them unfit
to continue discharging the trust reposed in them as
members of the bar. Unlike ordinary proceedings, it is not
subject to the defense of prescription.
Q: C filed a verified administrative complaint against
Atty. D. In the course of the investigation, C presented
an affidavit of desistance which she identified on the
witness stand. What course of action should
the investigator take? Explain. (2000 Bar)
A: The investigator should continue with the investigation.
A disbarment proceeding is sui generis, neither a civil nor
criminal action. As such, a desistance by the complainant
is unimportant. The case may proceed regardless of
interest or lack of interest of the complainant (Rayos-
Ombac v. Rayos, 285 SCRA 93 [1998]). If the evidence on
record warrants, the respondent may be suspended or
disbarred regardless of the desistance of the complainant.
Of course, if the complainant refuses to testify and the
charges cannot then be substantiated, the court will have
no alternative but to dismiss the case.
Grounds
Q: What are the grounds for disbarment or suspension
from office of an attorney?
(2015 Bar)
A: Under Sec. 27, Rule 138, the grounds for suspension or
disbarment of a lawyer are “any deceit, malpractice, or
other gross misconduct in such office, grossly immoral
conduct, or by reason of conviction of a crime involving
moral turpitude, or for any violation of the oath which he
is required to take before admission to practice, or for a
willful disobedience appearing as an attorney for a party
or to a cause without authority to do so.” The practice of
soliciting cases for the purposes of gain, either personally
or through paid agents or brokers constitutes malpractice.
Q: Atty. Forma is a member of the Philippine Bar. He
went to New York City, took the New York State Bar,
and passed the same. He then practiced in New York
City. One of his American clients filed a case for
disbarment against him for pocketing the money
which was entrusted to him as payment for the filing
fee and other incidental expenses of his damage suit.
Atty. Forma was later disbarred for dishonesty.
Disheartened, Atty. Forma came back to the
Philippines and practiced as a lawyer.
Will his disbarment in New York be used against him
for purposes of disbarment proceedings here in the
Philippines? (2014,
2006, 2002 Bar)
A: Atty. Forma may be disbarred in the Philippines if the
ground for his disbarment in New York is also a ground for
disbarment in this country. But he is still entitled to due
process of law, and the foreign court’s judgment against
him only constitutes prima facie evidence of unethical
conduct as a lawyer. He is entitled to be given an
opportunity to defend himself in an investigation to be
conducted in accordance with Rule 139 of the Revised
Rules of Court (In Re: Suspension from the Practice of Law
in the Territory of Guam of Atty. Leon Maquera, B.M. 793,
July 30, 2004; Velez v. De Vera, A.C. No. 6697, July 25, 2006).
Q: Cliff and Greta were law school sweethearts. Cliff
became a lawyer, but Greta dropped out. One day, Cliff
asked Greta to sign a marriage contract. The following
day, Cliff showed Greta the document already signed
by an alleged solemnizing officer and two witnesses.
Cliff then told Greta that they were already married
and Greta consented to go on a honeymoon.
Thereafter, the couple cohabited and begot a child.
Two years later, Cliff left Greta and married a
Venezuelan beauty. Incensed, Greta filed a disbarment
complaint against Cliff. Will the
case prosper? Explain. (2009 Bar)
A: The disbarment case will prosper. In the case of
Cabrera v. Agustin (106 Phil. 256 [1959]), a lawyer who
deceived a woman to believe that they were already
married after they had signed an application for a
marriage license, and afterwards took advantage of her
belief to satisfy his lust, until she bore him a child, was
1 considered by the Supreme Court to be lacking in integrity
and good moral character to remain a member of the bar.
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. Big. 22. In
the disbarment proceedings filed against him, Atty.
Walasunto contended that his conviction for violation
of B.P. Big. 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, 1992
Bar)
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. 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 deceitful
conduct."
Q: The agreement between the estranged husband and
wife provided for, among others, the liquidation of the
conjugal partnership of gains, custody of the children,
and support for the children. In the same agreement,
the couple waived the right to prosecute each other
for bigamy, adultery, concubinage and whatever acts
of infidelity. There was also a condonation provision.
The agreement was prepared and notarized by a
lawyer who was the best man at the wedding. What
are the liabilities, if any, of this lawyer? Explain your
answer.
(1989 Bar)
A: The document executed by the spouses is immoral and
contrary to law. The lawyer who drafted and notarized all
said documents committed malpractice and can be
disbarred or suspended. Although the principal duty of the
notary public is to ascertain the identity of the parties and
the voluntariness of the declaration, it is nevertheless
incumbent upon him to guard against any illegal or
immoral agreement.
Proceedings
Q: A disbarment complaint against a lawyer was
referred by the Supreme Court to a Judge of the
Regional Trial Court for investigation, report and
recommendation. On the date set for the hearing of
the complaint, the Judge had the case called for trial in
open court and proceeded to receive evidence for the
complainant. What would you have done if you were
the counsel for the respondent-lawyer? Why? Reason
briefly. (2004 Bar)
A: I would object to the holding of a trial in public.
Disciplinary proceedings against an attorney are
confidential in nature until its termination. The
professional success of a lawyer depends almost entirely
on his good reputation. If that is tarnished, it is difficult to
restore the same (Ibanez v. Vina, 107 SCRA 607 [1981]). To
avoid the unnecessary ruin of a lawyer’s name, disbarment
proceedings are directed to be confidential until their final
determination (Sec. 18, Rule 139-B, Rules of Court).
Q: Atty. D was required by Judge H of the Regional
Trial Court (RTC) of Manila to show cause why he
should not be punished for contempt of court for
shouting invectives at the opposing counsel and
harassing his witness.
Assuming that there was sufficient cause or ground,
may Judge H suspend Atty. D from the practice of law?
If Judge H finds that the actuations of Atty. D are
grossly unethical and unbecoming of a member of the
bar, may Judge H disbar Atty. D instead?
Explain your answer. (2014 Bar)
A: Under Section 28, Rule 138 of the Rules of Court, a
Regional Trial Court may suspend a lawyer from the
practice of law for any of the causes provided in Section
27, until further action of the Supreme Court. But it may
not disbar him, for only the Supreme Court can disbar a
lawyer pursuant to its constitutional power to admit
persons to the practice of law.
Q: Atty. Hyde, a bachelor, practices law in the
Philippines. On long weekend, he dates beautiful
actresses in Hong Kong. Kristine, a neighbor in the
Philippines, filed with the Supreme Court an
administrative complaint against the lawyer because
of sex videos uploaded through the internet showing
Atty. Hyde’s sordid dalliance with the actresses in
Hong Kong.
In his answer, Atty. Hyde (1) questions the legal
personality and interest of Kristine to institute the
complaint and (2) insists that he is a bachelor and the
sex videos relate to his private life which is outside
public scrutiny and have nothing to do with his law
practice.
Rule on the validity of Atty. Hyde’s defenses.
(2009 Bar)
A:
a. The legal personality and interest of Kristine to
initiate the complaint for disbarment is immaterial. A
disbarment proceedings is sue generis, neither a civil
nor a criminal proceeding. Its sole purpose is to
determine whether or not a lawyer is still deserving to
be a member of the bar. In a real sense, Kristine is not
a plaintiff; hence, interest on her part is not required.
b. Atty. Hyde’s second defense is untenable. His duty not
to engage in unlawful, dishonest, immoral and
deceitful conduct under Rule 1.01 of the CPR, as well
as his duty not to engage in scandalous conduct to the
discredit of the legal profession under Rule 7.03, is
applicable to his private as well as to his professional
life.
Q: Y hired Attorney X to represent him in a collection
case he filed against Z. The parties later on agreed to
settle the case and Z turned over to Attorney X the
amount of P25,000.00 as partial settlement of his
obligation. Attorney X kept the money. Y, upon
learning of Attorney X’s action, filed a disbarment case
against the latter before the Supreme Court, which in
turn, referred the case to the Integrated Bar of the
Philippines for investigation, report and
recommendation.
The IBP Commissioner tasked to investigate the case
reviewed all the pleadings submitted by Y and
Attorney X and their respective witnesses, and
promptly made a report recommending that Attorney
X be suspended for six months. The IBP Board of
Governors adopted the recommendation of the
Investigating Commissioner. Attorney X assailed his
suspension on the ground of an impingement on his
right to due process. Is Attorney X's contention
sustainable?
Explain. (2003 Bar)
A: There is no impingement on Attorney X’s right to due
process. The IBP Commissioner tasked to investigate the
case reviewed all the pleadings of the parties and their
respective witnesses. This implies that Atty. A was given
an opportunity to present his side. Due process has been
satisfied. This is especially true if the principle of res ipsa
loquitur is applicable. (However, it may be noted that the
IBP Board of Governors is not authorized to impose the
penalty of suspension).
Q: A engaged the services of Atty. B to defend him in a
case for collection of sum of money that was brought
against him in the Municipal Trial Court by D. Despite
notice of the scheduled dates of hearing, Atty. B failed
to appear much less to inform A about it. The case was
decided against A. It was only when the adverse
judgment was being executed against him that A
learned he had lost the case. When he went to see
counsel, Atty. B put up the excuse that he was busy
attending to his cases which were more important
than A's.
Before whom can A seek redress against Atty. B who
apparently was negligent in
attending his case? (1999 Bar)
A: He may file a verified complaint against Atty. B, asking
that he be administratively disciplined, with either the
Supreme Court, the Board of Governors of the Integrated
Bar of the Philippines (IBP), or the EBP Chapter to which
Atty. B belongs (Sec. 1, Rule 139-B).
ADDITIONAL ANSWER:
He may also file a complaint against Atty. B before a
Regional Trial Court or Municipal Trial Court, depending
on the amount involved, for damages he may have
sustained due to the latter's negligence.
Q: When Atty. Aldrin received copy of the decision of
the Court of Appeals, he filed a motion for
reconsideration using intemperate and disrespectful
language with a subtle threat that “knowingly
rendering an unjust judgment is punishable
under the Revised Penal Code."
The Court of Appeals ordered him to explain why he
should not be cited in contempt of court. Instead of
complying, he submitted to the Court of Appeals his
Petition to Retire from the practice of law which he
immediately filed with the Supreme Court after
receiving the citation for contempt. May he be allowed
to retire
from the practice of law? (1998 Bar)
A: No.A practicing lawyer and officer of the court facing
contempt proceedings cannot just be allowed to
voluntarily retire from the practice of law which would
negate the inherent power of the court to punish him for
contempt (Montecillo v. Gica, 60 SCRA 234).
Q: Ben filed proceedings for disbarment against his
lawyer, Atty. Co, following the latter’s conviction for
estafa for misappropriating funds belonging to his
client (Ben). While the proceedings for disbarment
was pending, the President granted absolute pardon
in favor of Atty. Co. Atty. Co. then, moved for the
dismissal of the disbarment case.
Should the motion be granted? (1998 Bar)
1 A: An absolute pardon by the President is one that
operates to wipe out the conviction as well as the offense
itself. The grant thereof to a lawyer is a bar to a
proceeding for disbarment against him, if such proceeding
is based solely on the fact of such conviction (In Re:
Parcasion, 69 SCRA 336). But where the proceeding to
disbar is founded on the professional misconduct involved
in the transaction which culminated in his conviction, the
effect of the pardon is only to relieve him of the penal
consequences of his act and does not operate as a bar to
the disbarment proceeding, inasmuch as the criminal acts
may nevertheless constitute proof that the attorney does
not possess good moral character (In Re:
Lontoc, 43 Phil. 293).
Q: A verified complaint for disbarment was filed
against Atty. Cruz who was accused of
misappropriating funds belonging to the complainant.
The matter was referred to the IBP which forthwith
conducted an investigation through its local chapter.
During the pendency of the investigation, the
complainant filed an Affidavit of Desistance claiming
that Atty. Cruz had already reimbursed him for the
funds which he had accused him of unlawfully
spending for his own use. Atty. Cruz moved for the
dismissal of the complaint.
As the hearing officer, how will you act on
the motion of Atty. Cruz? (1994 Bar)
A: The desistance of a complaint in a disbarment
proceedings or his withdrawal of the charges against a
lawyer does not deprive the court of the authority to
proceed to determine the matter. Nor does it necessary
result in the dismissal of the complaint, except when, as a
consequence of withdrawal or desistance, no evidence is
adduced to prove the charges. Since a disbarment
proceeding is neither a civil nor a criminal action but one
presented solely for public interest, the fact that the
complainant and the respondent have considered the case
closed, is unimportant.
As hearing officer, I will deny the motion of Atty. Cruz and
continue the hearings.
Q: A lawyer charged his client P 10,000.00 for filing
fees pertaining to the complaint he filed in court. He
actually spent only P1,000,00. He did not account for
the balance.
Suppose that the lawyer should be charged, how and
where should the complaint be
filed? Explain your answer. (1990 Bar)
A: The client may file a verified complaint for disbarment
against his lawyer. His verified complaint shall state
clearly and concisely the facts complained of and shall be
supported by affidavits of person or persons having
personal knowledge of the facts therein alleged and/or by
such documents as may substantiate said facts. The client
may file the complaint directly with the Supreme Court, in
which case at least 18 copies thereof shall be filed, and the
Supreme Court may refer the complaint to the IBP Board
of Governors for appropriate action, such as assigning the
complaint to an investigator, or to the Solicitor General or
court officer or judge for investigation when the interest of
justice requires. The client may, however, file his
complaint, in six copies, with the IBP Board of Governors,
which will then assign the case to an investigator for
investigation, or with the Secretary of a local chapter of
the IBP, which will in turn transmit the same to the IBP
Board of Governors for assignment to an investigator
(Rule 139-B of the Rules of Court).
Q: How may a proceeding for disbarment, suspension
or discipline of attorneys be instituted? (1989 Bar)
A: A proceeding for disbarment, or suspension or
discipline of attorneys may be taken by the Supreme
Court, the Court of Appeals or the Regional Trial Court, on
its own motion, or upon complaint under oath of another
in writing. The Integrated Bar of the Philippines may
investigate the matter and recommend to the Supreme
Court the disbarment and suspension from the practice of
law of the erring lawyer.
DISCIPLINE OF FILIPINO LAWYERS PRACTICING
ABROAD
Q: Atty. Perez was admitted as a member of the New
York Bar. While in Manhattan, he was convicted of
estafa and was disbarred.
Does his disbarment in New York a ground for his
automatic disbarment in the
Philippines? (2006 Bar)
A: The disbarment or suspension of a member of the
Philippine Bar by a competent court or other disciplinary
agency in a foreign jurisdiction where he has also been
admitted as an attorney is a ground for his disbarment or
suspension if the basis of such action includes any of the
acts hereinabove enumerated.
The judgment, resolution or order of the foreign court or
disciplinary agency shall be primafacie evidence of the
ground for disbarment or suspension (pars. 2 & 3, Section
27, Rule 138, as amended by Supreme Court Resolution,
dated February 13,1992).
Thus, the disbarment of Atty. Perez in New York for estafa
is a ground for his disbarment in the Philippines. However,
such disbarment in the Philippines is not automatic. Atty.
Perez is still entitled to due notice and hearing (In Re
Suspension from the Practice of Law in the Territory of
Guam of Atty. Leon G. Maquera, 435 SCRA 417 (2004]).
Q: Atty. LA is a member of the Philippine Bar and the
California Bar in the United States. For willful
disobedience of a lawful order of a Superior Court in
Los Angeles, Atty. LA was suspended from the practice
of law in California for one (1) year.
May his suspension abroad be considered a ground for
disciplinary action against Atty.
LA in the Philippines? Why? (2002 Bar)
A: The suspension of Atty. LA from the practice of law
abroad may be considered as a ground for disciplinary
action here if such suspension was based on one of the
grounds for disbarment in the Philippines or shows a loss
of his good moral character, a qualification he has to
maintain in order to remain a member of the Philippine
Bar.
READMISSION TO THE BAR
LAWYERS WHO HAVE BEEN DISBARRED
Q: Atty. Queliza was convicted of qualified seduction.
He was subsequently disbarred at the initiative of the
IBP. Before he could complete the service of his
sentence, he was given an absolute pardon by the
President. He thereupon petitioned the Supreme
Court for reinstatement to the practice oflaw as a legal
and logical consequence of the absolute pardon.
Is he entitled to reinstatement? (1994 Bar)
A:An absolute pardon granted to a lawyer who has been
previously disbarred for conviction of a crime involving
moral turpitude does not automatically entitle him to
reinstatement. The matter of his reinstatement is still
subject to the discretion of the Supreme Court. He should
still show by evidence aside from the absolute pardon that
he is now a person of good moral character, a fit and
proper person to practice law (In Re Rovero, 101 SCRA
797).
Q: The Faculty of the College of Law of the University of
the Philippines pleaded for compassion on behalf of
Atty. Juan Santos. The Supreme Court had earlier
found Atty. Santos guilty of grave professional
misconduct and imposed upon him “an indefinite
suspension, leaving it to him to prove at some future
and opportune time that he shall have once again
regained the fitness to be allowed to resume the
practice
of law as an officer of the court."
Is the plea of the Faculty for Atty. Juan
Santos well taken? Explain. (1993 Bar)
A: The plea of the Faculty of Law of the University of the
Philippines asking compassion on behalf of Atty. Juan
Santos is not well taken.
In order that a lawyer who was disbarred can be
reinstated, he must show with convincing proof that he
has good moral character acquired through positive
efforts, honorable dealings and moral reformation as to be
fit to practice law again. Mere allegation of compassion for
a lawyer is not sufficient. In one decision of the Supreme
Court, in order that a disbarred lawyer can be reinstated,
he must prove his good moral character as if he is applying
for admission to the bar.
LAWYERS WHO HAVE BEEN REPATRIATED
Q: Atty. Repatriar, a law school classmate, approached
you on your 25th Class Reunion, with questions on how
he can resume the practice of law in the Philippines.
He left the country in 1977 after two (2) years of
initial law practice, and migrated to the United States
where he was admitted to the practice of law in the
State of New York. He asks that you give him a formal
legal opinion on his query.
Outline briefly the steps and the supporting legal
reasons you would state in your legal opinion on what
Atty. Repatriar should do to resume his Philippine
practice. (2013
Bar)
A: Atty. Repatriar must prepare a sworn petition to
reacquire the privilege to practice law in the Philippines.
He should manifest in his petition his desire to resume his
law practice in the Philippines, and he is not disqualified
to practice law. The “right to resume the practice of law” is
not automatic. R.A. No. 9225 provides that a person who
intends to practice his profession in the Philippines must
apply with the proper authority for a license or permit to
engage in such practice. It cannot be overstressed that the
practice of law is a privilege burdened with conditions. It
is so delicately affected with public interest that it is both
the power and duty of the State (through this Court) to
control and regulate it in order to protect and promote the
public welfare.
Adherence to rigid standards of mental fitness,
maintenance of the highest degree of morality, faithful
observance of the legal profession, compliance with the
mandatory continuing legal education requirement and
payment of membership fees to the Integrated Bar of the
Philippines (IBP) are the conditions required for
membership in good standing in the bar and for enjoying
the privilege to practice of law. Any breach by a lawyer of
any of these conditions makes him unworthy of the trust
and confidence which the courts and clients repose in him
for the continued exercise of his professional privilege” (In
Re: Petition to reacquire the privilege to practice law in the
Philippines, Epifanio B. Muneses, B.M. No. 2112, July 24,
1 2012).
He should file the petition with the Supreme Court,
through the Bar Confidant accompanied by the original or
certified copies of the following documents:
1. Showing that he is still a Filipino citizen. ”The Court
reiterates that Filipino citizenship is a requirement for
admission to the bar and is, in fact, a continuing
requirement for the practice of law” (In Re: Petition to
Re-acquire the Privilege to Practice Law in the
Philippines, B.M. No. 2112, supra). Having retained
Philippine citizenship could be evidenced by the
Philippine passport, the U.S. Green card showing
Philippine citizenship and U.S. residency or other
authentic documents which the Supreme Court may
require.
On the other hand, if Atty. Repatriar has lost his Philippine
citizenship, he must submit the following:
a. Petition for Re-Acquisition of Philippine
Citizenship;
b. Order (for Re-Acquisition of Philippine citizenship);
c. Oath of Allegiance to the Republic of the
Philippines;
d. Identification Certificate (IC) issued by the Bureau of
Immigration.
The loss of Filipino citizenship means termination of Atty.
Repatriar’s membership in the bar; ipso jure the privilege
to engage in the practice of law. Under R.A. No. 9225,
naturalborn citizens who have lost their Philippine
citizenship by reason of their naturalization as citizens of a
foreign country are deemed to have re-acquired their
Philippine citizenship upon taking the oath of allegiance to
the Republic. Thus, a Filipino lawyer who becomes a
citizen of another country and later reacquires his
Philippine citizenship under R.A. No. 9225, remains to be a
member of the
Philippine Bar (B.M. No. 2112, In re: Petition to re-acquire
the privilege to practice law in the Philippines, supra).
2. Certification from the IBP indicating updated
payments of annual membership dues;
3. Proof of payment of professional tax; and
4. Certificate of compliance issued by the MCLE Office.
(Ibid.)
5. A certificate of good moral character attested to by at
least three (3) members of the bar; and
6. A certification from the State Bar of New York that
Atty. Repatriar does not have any previous or pending
disciplinary action filed against him before that body.

Q: After passing the Philippine Bar in 1986, Richards
practiced law until 1996 when he migrated to
Australia where he subsequently became an
Australian citizen in 2000. As he kept abreast of legal
developments, petitioner learned about the
Citizenship Retention and Re-Acquisition Act of 2003
(Republic Act No. 9225), pursuant to which he
reacquired his Philippine citizenship in 2006. He took
his oath of allegiance as a Filipino citizen at the
Philippine Embassy in Canberra, Australia. Jaded by
the laid back life in the outback, he returned to the
Philippines in December 2008. After the holidays, he
established his own law office and resumed his
practice of law.
Months later, a concerned woman who had secured
copies of Atty. Richards’ naturalization papers with
consular authentication, filed with the Supreme Court
an anonymous complaint against him for illegal
practice of law.
Is respondent entitled to resume the practice of Law?
Explain. (2010 Bar)
A: Yes, as long as he observes the procedure laid down in
Petition for Leave to Resume Practice of Law of Benjamin
M. Dacanay (B.M. No. 1678, December 17, 2007, 540 SCRA
424), to wit:
a. Updating and payment in full of the annual
membership dues in the IBP;
b. Payment of the professional tax;
c. Completion of at least 36 credit hours of mandatory
continuing legal education; and,
d. Pre-taking of the lawyer’s oath.
NOTARIAL PRACTICE (A.M. NO. 02-8-13-SC,
AS AMENDED)
POWERS AND LIMITATIONS
Q: Enumerate the instances when a Notary Public may
authenticate documents without requiring the
physical presence of the signatories. (2010 Bar)
A:
1. If the signatory is old or sick or otherwise unable to
appear, his presence may be dispensed with if one
credible witness not privy to the instrument and who
is known to the notary public, certifies under oath or
affirmation the identity of the signatory.
2. If two credible witnesses neither of whom is privy to
the instrument, not known to the notary public but
can present their own competent evidence of identity,
certify under oath or affirmation to the identity of the
signatory.
3. In case of copy certification and issuance of certified
true copies.
Q: What are the powers and duties of a
notary public? (1995 Bar)
A: Every notary public shall have power to administer all
oaths and affirmations provided for by law, in all matters
incidents to his notarial office, and in the execution of
affidavits, depositions, and other documents requiring an
oath; to receive the proof or acknowledgment of all
writings relating to commerce or navigation, such as bills
of exchange, bottomries, mortgages, and hypothecations of
ships, vessels, or boats, charter parties or affreightments,
letters of attorney, deeds, mortgages, transfers and
assignments of land or buildings, or an interest therein,
and such other writings as are commonly proved or
acknowledged before notaries; to act as a magistrate in the
writing of affidavits or depositions, and to make
declarations and certify the truth thereof under his seal of
office, concerning all matters done by him by virtue of his
office (Sec. 241, Notarial Law).
The duties of a notary public are the following:
1. To keep a notarial register;
2. To make the proper entry or entries in the notarial
register touching his notarial acts in the manner
required by the law;
3. To send the copy of the entries to the proper clerk of
court within the first 10 days of the month next
following;
4. To affix to acknowledgments the date of expiration of
his commission, as required by law;
5. To forward his notarial register, when filled, to the
proper clerk of court;
6. To make report, within a reasonable time, to the
proper judge concerning the performance of his
duties, as may be required by such judge;
7. To make the proper notation regarding residence
certificates (Sec. 247, Rev. Adm.
Code).
Q: Comment on the propriety of the acts of the
municipal judge who prepared and notarized the
following documents:
a. a deed of absolute sale executed by two of his
friends;
b. an extrajudicial settlement of estate of his cousins;
c. a memorandum of agreement between a building
contractor and a neighboring municipality;
d. a memorandum of agreement between another
private contractor and the municipality where he
sits as judge.
(1995 Bar)
A: Municipal Judges may not engage in notarial work
except as notaries public ex-officio. As notaries public ex-
officio, they may engage only in notarization of documents
connected with the exercise of their judicial functions.
They may not as such notaries public ex-officio, undertake
the preparation and acknowledgment of private
documents, contracts and other acts of conveyance, which
bear no relation to the performance of their functions as
judges.
However, taking judicial notice of the fact that there are
still municipalities which have neither lawyers nor
notaries public, the Supreme Court ruled that MTC and
MCTC Judges assigned to municipalities or circuits with no
lawyers or notaries public may, in their 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 for the account of the
Government and turned to the municipal treasurer and (2)
certification be made in the notarized documents attesting
to the lack of any lawyer or notary public of such
municipality or circuit (Balayon, Jr. vs. Ocampo, 218 SCRA
13).
On the basis of the foregoing, I would say that the
propriety of the actuations of the municipal judge in this
problem depends on whether or not there are notaries
public available in his community. If there are notaries
available, his acts are improper. Otherwise they are
proper, provided that the two conditions mentioned above
are complied with.
JURISDICTION OF NOTARY PUBLIC AND
PLACE OF NOTARIZATION
Q: Atty. Sabungero obtained a notarial commission.
One Sunday, while he was at the cockpit, a person
approached him with an affidavit that needed to be
notarized. Atty. Sabungero immediately pulled out
from his pocket his small notarial seal, and notarized
the document. Was the affidavit
validly notarized? Explain. (2009 Bar)
A: Section 2, Rule IV of the 2004 Rules on Notarial Practice
provides that a Notary Public shall not perform a notarial
act outside his regular place of work, except in few
exceptional occasions or situations, at the request of the
parties. Notarizing in a cockpit is not one of such
exceptions. The prohibition is aimed to eliminate the
practice of ambulatory notarization. However, assuming
that the cockpit is within his notarial jurisdiction, the
notarization may be valid but the notary public should be
disciplined.
Q: What is the extent of the jurisdiction of a
notary public? (1995 Bar)
A: The Jurisdiction of a notary public in a province shall be
co-extensive with the province. The jurisdiction of a
notary public in the City of Manila shall be co-extensive
with said city. No notary shall possess authority to do any
notarial act beyond the limits of his jurisdiction (Sec. 240,
Rev. Adm. Code).
Q: Atty. Z, a notary public commissioned in Quezon
1 City, attended a wedding at Makati. B requested Z to
notarize a deed of sale executed between X and Y who
were both in Baguio City. Atty. Z who has a portable
notarial seal, notarized the document. Subsequently, X
assailed the document alleging that his signature
thereon was falsified. X filed a case for disbarment
against Atty. Z.
Will the complaint prosper? Explain. (1996
Bar)
A: Atty. Z may be held criminally liable for violating Article
171 (Falsification by Public Officer) of the Revised Penal
Code, by making it appear that X and Y appeared and
acknowledged having executed the deed of sale before
him, when in fact they did not so appear or acknowledged.
He may also be administratively liable for not obeying the
laws of the land (Canon 1, Code of Professional
Responsibility). Moreover, his jurisdiction as notary is only
in Quezon City.
Q: Jojo, a resident of Cavite, agreed to purchase the lot
owned by Tristan, a resident of Bulacan. Atty. Agaton,
Jojo’s lawyer who is also a notary public, prepared the
Deed of Sale and Jojo signed the document in Cavite.
Atty. Agaton then went to Bulacan to get the signature
of Tristan. Thereafter, Atty. Agaton went back to his
office in Cavite where he notarized the Deed of Sale. Is
the notarization legal
and valid? Explain. (2016 Bar)
A: The Notarization is not legal and valid. Rule IV, Section
2(b) of the 2004 Rules on Notarial Practice provides that a
person shall not perform a notarial act if the person
involved as signatory to the instrument or document is not
personally in the notary’s presence at the time of
notarization. Tristan was not in Atty. Agaton’s presence
when the latter notarized the deed of sale in his office in
Cavite; moreover, Tristan signed in Bulacan which is
outside the Atty. Agaton’s territorial jurisdiction.
CANONS OF PROFESSIONAL ETHICS
Q: Under the Code of Professional Responsibility, what
is the principal obligation of a lawyer towards:
a. The legal professional and the
Integrated Bar?
b. His professional colleagues?
c. The development of the legal system?
d. The administration of justice?
e. His client? (2004 Bar)
A:
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).
b. A lawyer shall conduct himself with courtesy, fairness
and candor towards his professional colleagues, and
shall avoid harassing tactics against opposing counsel
(Canon 8, Code of Professional
Responsibility).
c. 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).
ALTERNATIVE ANSWER:
a. A lawyer shall keep abreast of legal developments,
participate in continuing legal education programs,
support efforts to achieve high standards in law
schools 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).
b. A lawyer shall exert every effort and consider his duty
to assist in the speedy and efficient administration of
justice (Canon 12, Code of Professional
Responsibility).
ALTERNATIVE ANSWER:
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).
b. A lawyer shall observe candor, fairness and loyalty in
all his dealings and transactions with his client (Canon
15, Code of Professional Responsibility).
JUDICIAL ETHICS
Disqualification of Justices and Judges (Rule 137)
Q: In a land registration case before Judge Lucio, the
petitioner is represented by the second cousin of
Judge Lucio’s wife.
a. Differentiate between compulsory and voluntary
disqualification and determine if Judge Lucio
should disqualify himself under either
circumstances.
b. If none of the parties move for his disqualification,
may Judge Lucio
proceed with the case? (2015 Bar)
A:
a. In compulsory disqualification, the judge is compelled
to inhibit himself from presiding over a case when any
of the ground provided by the law or the rules exist.
Under Section 1, Rule 137 of the Revised Rules of
Court, no judge or judicial officer shall sit in any case
(1) in which he, or his wife or child, is pecuniarily
interested as heir, legatee, creditor or otherwise, or
(2) in which he is related to either party within the
sixth degree of consanguinity or affinity or to counsel
within the fourth degree computed according to the
rules of the civil law, or (3) in which he has been
executor, administrator, trustee or counsel, or (4) in
which he has presided in any inferior court when his
ruling or decision is the subject of review, without
consent of all parties in interest and entered upon the
record.
Section 5, Canon 3 of the New Code of Judicial Conduct
for the Philippine Judiciary adds the following
grounds:
a. The judge has actual bias or prejudice concerning
a party or personal knowledge of disputed
evidentiary facts concerning the proceedings;
b. The judge has previously served as a lawyer or
was a material witness in the matter under
controversy.
In voluntary disqualification, a judge may inhibit
himself in the exercise of his discretion. Paragraph 2,
Rule 137 of the Revised Rules of Court provides that
“a judge may, in the exercise of his sound discretion,
disqualify himself from sitting in a case, for just and
valid reasons other than those mentioned above”. The
New Code of Professional Conduct for the Philippine
Judiciary adds that “judges shall disqualify themselves
from participating in any proceedings in which they
are unable to decide the matter impartially or in
which it may appear to a reasonable observer that
they are unable to decide the matter impartially.”
There is no mandatory ground for Judge Lucio to
disqualify himself. The second cousin of his wife, a
sixth degree relative, is appearing not as a party but as
counsel.
b. If none of the parties moves for his disqualification,
Judge Lucio may proceed with the case. All the more
so if, without the participation of the Judge, the parties
and their lawyers execute a written agreement that
Judge Lucio may proceed with the same, and such
agreement Is signed by them and made a part of the
records of the case.
Q: Rebecca’s complaint was raffled to the sala of Judge
A. Rebecca is a daughter of Judge A’s wife by a
previous marriage. This is known to the defendant
who does not, however, file a motion to inhibit the
Judge. Is the Judge justified in not inhibiting himself
from the case? (2010 Bar)
1 motion. Instead of filing a Petition for Review, lawyer
A: The judge is not justified in not inhibiting himself. It is
mandatory for him to inhibit if he is related to any of the
parties by consanguinity or affiant within the sixth civil
degree (Sec. 3 [f] Canon 3, New Code of Judicial Conduct for
the Philippine Judiciary). Judge A, being the stepfather of
Rebecca, is related to her by affinity by just one degree.
“Judges shall disqualify themselves from participating in
any proceeding in which they are unable to decide the
matter impartially or in which it may appear to a
reasonable observer that they are unable to decide the
matter impartially” (Id., Sec. 5, Canon 3). The fact that
Rebecca is a daughter of Judge A’s wife is liable to make a
reasonable observer doubt his impartially.
Q: RTC Judge Q is a deacon in the
IglesianiKristo 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 Bar)
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 the people's faith in the courts
of justice is not 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 SCRA630). 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
v. BLTBus 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: Lawyer W lost his ejectment case in the Municipal
Trial Court. He appealed the decision to the RTC which
V, the judge thereof, affirmed through a memorandum
decision. He filed a motion for reconsideration
praying that the RTC should state the facts and the law
on which its decision is based. Judge V denied his
W filed an administrative complaint against Judge V
for breach of the Code of Judicial Conduct. What is the
liability of Judge V, if any? (1991 Bar)
A: There is no breach of the Code of Judicial Conduct
committed by the RTC Judge. The memorandum decision
rendered in an appeal from the Municipal Court in its
original jurisdiction carries with it the statement of facts
found by the Municipal Court which are deemed affirmed
by the RTC judge.
Memorandum decisions are allowed on appeal.
Q:
1. Discuss briefly the grounds for disqualification or
inhibition of judges to try a case.
2. A judge rendered a decision in a criminal case
finding the accused guilty of estafa. Counsel for the
accused filed a motion for reconsideration which
was submitted without arguments. Later, another
lawyer entered his appearance for the accused.
The judge issued an order inhibiting himself from
further sitting in the case because the latter
lawyer had been among those who recommended
him to the Bench. Can
the judge's voluntary inhibition be
sustained? (1989, 1988 Bar)
A:
1. Under Rule 137 Section 1 of the Rules of Court, a judge
is disqualified to sit in every case in which he, or his
wife or child, is pecuniarily interested as heirs;
legatee, creditor, or otherwise, or in which he is
related to either party within the sixth degree of
consanguinity or affinity, or to counsel within the
fourth degree computed according to the rules of civil
law or in which he has been executor, administrator,
guardian, trustee or counsel, or in which he has
presided in any inferior court when his ruling or
decision is the subject of review, without the written
consent of all parties in interest, signed by them and
entered upon the record. This rule enumerates the
grounds under which a judge is legally disqualified
from sitting in a case, and excludes all other grounds
not specified therein. The judge may, however, in the
exercise of his sound discretion, disqualify himself
from sitting in a case, for just or valid reasons other
than those mentioned above.
 Under said rule, the judge may voluntarily inhibit
himself from sitting in a case, for just and valid
reasons other than those mentioned in the rule.
2. The judge may not voluntarily inhibit himself by the
mere fact that a lawyer recommended him to the
Bench. In fact, the appearance of said lawyer is attest
as to whether the judge can act independently and
courageously in deciding the case according to his
conscience. Inhibition is not allowed at every instance
that a friend, classmate, associate or patron of a
presiding judge appears before him as counsel for one
of the parties to a case. “Utang na loob”, per se, should
not be a hindrance to the administration of justice.
Nor should recognition of such value in Philippine
society prevent the performance of one’s duties as
judge, xxx (Masadao and Elizaga Re: Criminal Case No.
4954-M; 155 SCRA 7879). However, in order to avoid
any suspicion of partiality, it is better to the judge to
voluntarily inhibit himself.
Q: Judge L is assigned in Turtle Province. His brother
ran for Governor in Rabbit Province. During the
election period this year, judge L took a leave of
absence to help his brother conceptualize the
campaign strategy. He even contributed a modest
amount to the campaign kitty and hosted lunches and
dinners.
Did Judge L incur administrative and/or criminal
liability? Explain. (2010 Bar)
A: Judge L incurred administrative liability. Rule 5.18 of
the Code of Judicial Conduct (which is applicable in a
suppletory character to the New Code of Conduct for the
Philippine Judiciary) 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 funds,
publicly endorse candidates for political office or
participate in
other partisan political activities.”
He may also be held criminally liable for violation of
Section 26 (I) of the Omnibus Election Code, which
penalizes any officer or employee in the civil service who,
directly or indirectly, intervenes, in any election campaign
or engages in any partisan political activity, except to vote
or to preserve public order.
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 Bar]
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, EstanislaoBelan, August 6, 1998).
Compulsory
Q: State at least five (5) instances where judges should
disqualify themselves from participating in any
proceedings where their impartiality might
reasonably be questioned (2016 Bar)
A: Any five (5) of the following instances provided in Sec.
5, Canon 3 of the New Code of Conduct for the Philippine
Judiciary:
a. The judge has actual bias or prejudice concerning a
party or personal knowledge of disputed evidentiary
facts concerning the proceedings;
b. The judge previously served as a lawyer or was a
material witness in the matter in controversy;
c. The judge or a member of his or her family has an
economic interest in the outcome of the matter in
controversy;
d. The judge served as executor, administrator, guardian,
trustee or lawyer in the case or matter in controversy,
or a former associate of the judge served as counsel
during their association, or the judge or lawyer was a
material witness therein;
e. The judge’s ruling in a lower court is the subject of
review;
f. The judge is related by consanguinity or affinity to a
party litigant within the sixth civil degree or to
counsel within the fourth civil degree; or
g. The judge knows that his or her spouse or child has a
financial interest, as heir, legatee, creditor, fiduciary,
or otherwise, in the subject matter in controversy or
in a party to the proceeding, or any other interest that
could be substantially affected by the outcome of the
proceedings.
Section 1, Rue 137 of the Revised Rules of Court, provides
for similar grounds.
Q:In a case for homicide filed before the Regional Trial
Court (RTC), Presiding Judge Quintero issued an order
for the arrest of the accused, granted a motion for the
reduction of bail, and set the date for the arraignment
of the accused. Subsequently, Judge Quintero inhibited
himself from the case, alleging that even before the
case was raffled to his court, he already had personal
knowledge of the circumstances surrounding the case.
Is Judge Quintero’s inhibition justified? Explain.
(2009, 2004
Bar)
A: Judge Quintero’s inhibition is justified. One of the
grounds for inhibition under Section 5, Canon 3 of the New
Code of Judicial Conduct for the Philippine Judiciary is
“where the judge has actual bias or prejudice concerning a
party or personal knowledge of disputed evidentiary
facts concerning the proceedings.”
Q: In a case before him, it was the son of Municipal
Trial Court Judge X who appeared as 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 himself in the case because the defendant
never sought his disqualification.
Is Judge X liable for misconduct in office?
(1999 Bar)
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 his 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.
Voluntary
Q: Judge Clint Braso is hearing a case between Mr.
Timothy and Khristopher Company, a company where
his wife used to work as one of its Junior Executives
for several years. Doubting the impartiality of the
Judge, Mr. Timothy filed a motion to inhibit Judge Clint
Braso refused on the ground that his wife has long
resigned from
the company. Decide. (2014 Bar)
A: The fact that Judge Braso’s wife used to work for
Khristopher Company is not a mandatory ground for his
inhibition. However, Section 2, Canon 3 of the New Code of
Judicial Conduct for the Philippine Judiciary provides that
judges should disqualify themselves from participating in
any proceeding in which “it may appear to a reasonable
observer that they are unable to decide the matter in
partially.” The Supreme Court has advised that a judge
“should exercise his decision in a way that the people’s
faith in the courts of justice is not impaired” (Pimentel v.
Salanga, G.R. No. L27934, September 18, 1967). While it
may not be reasonable to believe that Judge Braso cannot
be impartial because his wife used to work as a Junior
Executive for Khristopher Company, the better part of
prudence would dictate that he inhibit himself from the
case involving the said company.
1
Q: Justice B of the Court of Appeals (CA) was a former
Regional Trial Court (RTC) Judge. A case which he
heard as a trial judge was raffled off to him. The
appellant sought his disqualification from the case but
he refused on the ground that he was not the judge
who decided the case as he was already promoted to
the appellate court before he could decide the case.
Was the refusal of Justice B to recuse from the case
proper? Explain your answer.
(2014 Bar)
A: The refusal of Justice B to recuse from the case is
improper. In the case of Sandoval v. CA (G.R. No. 106657,
August 1, 1996, 260 SCRA 283), involving the same facts,
the Supreme Court held that the Court of Appeals Justice
concerned was not legally bound to inhibit himself from
the case. However, he “should have been more prudent
and circumspect and declined to take on the case, owing to
his earlier involvement in the case,” because “a judge
should not handle a case in which he might be perceived,
rightly or wrongly, to be susceptible to bias and partiality.”
This axiom is “intended to preserve and promote public
confidence in the integrity and respect for the
judiciary.”
Q: The criminal case arising from the P10 Billion Peso
pork barrel scandal was raffled to Sandiganbayan
Justice Marciano Cobarde. Afraid that he would
antagonize the parties, his political patrons and
ultimately, his judicial career, he decided to inhibit
from participating in the case, giving “personal
reasons” as his justification.
If you were to question the inhibition of SB Justice
Cobarde, on what legal basis, and
where and how will you do this? (2013 Bar)
A: The grounds relied upon by Justice Cobarde for his
inhibition conveys the impression that “the parties” and
“his political patrons” are in a special position improperly
to influence him in the performance of judicial duties
(New Code of Conduct for the Philippine Judiciary, Canon 4,
Sec. 8). Furthermore, the Sandiganbayan sits in Divisions,
so the fears of Justice Cobarde are unfounded. Justice
Cobarde should not shirk from the performance of his
judicial duties. I would file a motion with the Division of
the Sandiganbayan in which Justice Cobarde is sitting for
the remittal of his voluntary inhibition. I would advance in
motion the reasons why the “personal reasons” set forth
by the Justice are insubstantial and does not merit his
inhibition. I would likewise set the motion for hearing as
appropriate.
Q4: 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 Bar)
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: On what grounds may a judge be disqualified, or
asked to voluntarily inhibit himself from hearing a
case? Briefly explain
each ground. (1988 Bar)
A: Rule 137, Section 1 of the Rules of Court provides that a
judge is disqualified from sitting on any case in which he
or his wife or child is pecuniarily interested as heir,
legatee, creditor or otherwise or in which he is related to
either party within sixth degree of consanguinity of
affinity or to counsel within the fourth civil degree.
Under the last sentence of Rule 137, Section 1 of the Rules
of Court, a judge may voluntarily inhibit himself from
participating in a case for just and valid reasons.
The rule on voluntarily inhibition of judges was set by the
Supreme Court in Pimentel v.
Salonga, 21 SCRA160 as follows:
All the foregoing notwithstanding, this
should be a good occasion as any to draw
the attention of all judges to appropriate
guidelines in a situation where their
capacity to try and decide fairly and
judiciously comes to the fore by way of
challenge from any one of the parties. A
judge may not be legally prohibited from
sitting in a litigation. But when the
suggestion is made of record that he
might be induced to act in favor 'of one
party or with bias or prejudice ‘against a
litigant arising out of circumstances
reasonably capable of inciting such a
state of mind, he should conduct a careful
self-examination.
He should exercise his discretion in a way that the people’s
faith in the courts of justice is not impaired.
INITIATION OF COMPLAINT AGAINST JUDGES AND
JUSTICES
Q: An anonymous letter addressed to the Supreme
Court was sent by one Malcolm X, a concerned citizen,
complaining against Judge Hambog, Presiding Judge of
the RTC of Mahangin City, Branch 7. Malcolm X
reported that Judge Hambog is acting arrogantly in
court; using abusive and inappropriate language; and
embarrassing and insulting parties, witnesses, and
even lawyers appearing before him. Attached to the
letter were pages from transcripts of records in
several cases heard before Judge Hambog, with Judge
Hambog’s arrogant, abusive, inappropriate,
embarrassing and/or insulting remarks or comments
highlighted.
Describe briefly the procedure followed when giving
due course to a complaint against an RTC judge. (2015
Bar)
A: If the complaint is sufficient in form and substance, a
copy thereof shall be sent to the respondent, and he shall
be required to comment within 10 days from date of
service. Upon the filing of the respondent’s comment, the
Supreme Court shall refer the matter to the Office of the
Court Administrator for evaluation, report and
recommendation, or assign the case to a Justice of the
Court of Appeals, for investigation, report and
recommendation. The investigating Justice shall set a date
for the hearing and notify the parties thereof, and they
may present evidence, oral or documentary, at such
hearing. The investigating Justice shall terminate the
investigation within 90 days from its commencement, and
submit his report and recommendation to the Supreme
Court within 30 days from the termination of the
investigation. The Supreme Court shall take action on the
report as the facts and the law may warrant (Rule 140).
Q: Judge A has an illicit relationship with B, his Branch
Clerk of Court. C, the wife of Judge A, discovered the
illicit affair and consulted a lawyer to vindicate her
violated marital rights. If you were that lawyer, what
would you advice C, and if she agrees and asks you to
proceed to take action, what is the legal procedure
that you should follow?
Discuss fully. (2014 Bar)
A: I will advice her to file an administrative case against
Judge A with the Supreme Court. I can tell her that she can
also file civil or criminal actions against him. But an
administrative case is confidential in nature and will not
unnecessarily drag the name and reputation of the court
into the picture.
DISCIPLINE OF MEMBERS OF THE JUDICIARY
Lower court judges and justices of the Court of
Appeals, Sandiganbayan and Court of Tax Appeals
(Rule 140)
Q: A complaint for rape against ZZ was filed by the
father of Dulce, an 11-year old girl, with the Municipal
Trial Court of Bantayan, Cebu. After preliminary
examination of the offended party and the witnesses,
Judge YY of said court issued an order finding
probable cause and ordering the arrest of ZZ without
bail. ZZ was arrested and detained. He file: (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
the 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 law, oppression, grave abuse of discretion and
partiality. If you were the executive judge of the RTC
designated to investigate the case and to make a
report and recommendation thereon, what would
be your recommendation? (1991 Bar)
A: The facts 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
records 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: Under the grievance procedures in Rule 139-B of
the Rules of Court, may judges be investigated by the
Integrated Bar of the
Philippines? Explain. (1989 Bar)
A: Judges may not be investigated under the grievance
procedure in Rule 139-B of the Rules of Court. Complaints
against judges are filed with the Supreme Court which has
administrative supervision over all courts. This was the
ruling of the Supreme Court in a minute resolution in reply
to the letter of acting Presiding Justice of the Court of
Appeals Rodolfo Nocon 03 January 1989.
Q: In Administrative Circular No. 1 addressed to all
lower courts dated January 28, 1988, the Supreme
Court stressed:
All judges are reminded that the
Supreme Court has applied the “Res
Ipsa Loquitur” rule in the removal of
judges even without any formal
investigation whenever a decision, on
1 its face, indicates gross incompetence
or gross ignorance of the law or gross
misconduct (See: People vs. Valenzuela,
135 SCRA 712; Cathay Pacific Airways
vs. Romillo, Jr., 142 SCRA 262).
The application of the “res ipsa loquitur” rule in the
removal of judges is assailed in various quarters as
inconsistent with due process and fair play.
Is there basis for such a reaction? Explain.
(1988 Bar)
A: In one view, there is a basis for the reaction against the
res ipsa loquitur rule on removing judges. According to the
position taken by the Philippine Bar Association. The res
ipsa loquitur rule might violate the principle of due
process, that is the right to be heard before one
is condemned
Moreover, Rule 140 of the Rules of Court provides for the
procedure for the removal of judges. Upon service of the
complaint against him, he is entitled to file his answer. If
the answer merits a hearing, it is referred to a justice of
the Court of Appeals for investigation, the report of the
investigation is submitted to the Supreme Court for proper
disposition.
The danger in applying the res ipsa loquitur rule is that the
judge may have committed only an error of judgment. His
outright dismissal does violence to the jurisprudence set
In Re Horilleno, 43 Phil. 212.
The other view taken by the Supreme Court is that the
lawyer or a judge can be suspended or dismissed based in
his activities or decision, as long as he has been given an
opportunity to explain his side. No investigation is
necessary.
Grounds
Q: An Audit team from the Office of the Court
Administrator found that Judge Contaminada
committed serious infractions through the
indiscriminate grant of petitions for annulment of
marriage and legal separation. In one year, the judge
granted 300 of such petitions when the average
number of petitions of similar nature granted by an
individual judge in his region was only 24 petitions
per annum.
The audit revealed many different defects in the
granted petitions; many petitions had not been
verified; the required copies of some petitions were
not furnished to the Office of the Solicitor General and
the Office of the Provincial Prosecutor; docket fees
had not been fully paid; the parties were not actual
residents within the territorial jurisdiction of the
court; and, in some cases,
there was no record of the crossexaminations
conducted by the pubic prosecutor or any
documentary evidence marked and formally offered.
All these, viewed in their totality, supported the
improvident and indiscriminate grant that the OCA
found.
If you were the counsel for Andy Malasuerte and other
litigants whose marriages had been improperly and
finally annulled, discuss your options in
administratively proceeding against
JudgeContaminada, and state where and how you
would exercise
these options. (2013 Bar)
A: As a counsel for Andy Malasuerte, I have the option of
participating in the administrative proceedings by filing a
verified complaint in writing against Judge Contaminado,
with the Office of the Court Administrator, supported by
affidavits of persons who have personal knowledge of the
facts alleged therein or by documents which may
substantiate said allegations. The complaint shall state
clearly and concisely the acts and omissions constituting
violations of standards of conduct prescribed for judges by
law, the Rules of Court, the Code of Judicial Conduct (Rules
of Court, Rule 140, Sec. 1) and the new Code of Conduct for
the Philippine Judiciary.
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.
Is his explanation tenable? Explain. (2005
Bar)
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 of cockfighting enthusiasts and bettors is
unbecoming 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. Hontanosas, Jr., ibid at p. 8).
Q: Before he joined the bench, Judge J was a vice-
mayor. Judge J resumed writing a weekly column in a
local newspaper. In his column, Judge J wrote:
“It was wondering if the present vice-mayor can shed
off his crocodile hide so that he can feel the clamor of
the public for the resignation of hoodlum public
officers of which he is one".
When charged administratively, Judge J invoked
freedom of expression. Is his
defense tenable? Explain. (Bar)
A: The Judge’s reliance on freedom of expression is
untenable. The judge's vicious writings compromise his
duties as judge in the impartial administration ofjustice.
His writings lack judicial decorum which requires the use
of temperate language at all times. The judge should not
instigate litigation (Galang v. Santos, 307 SCRA 583 [1999],
Royeca v. Animas. 71 SCRA 1 [1976]).
Q: 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
Bar)
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 as a ground for
his disqualification (Castillo v. Juan, 62 SCRA 124).
Q: A Judge of the Regional Trial Court, notwithstanding
the fact that he was facing criminal charges at the time
he obtained his appointment, did not disclose the
pendency of the cases either to the President or to the
Supreme Court. He claims that: (a) he enjoys
presumption of innocence in the pending criminal
cases; (b) that the said cases even if sustained after
trial do not involve moral turpitude; and (3) before an shall report that fact within five (5) days therefrom to this
administrative complaint based on a criminal Honorable Court.
prosecution can be given due course there must be a
conviction by final Judgment.

May the Judge be considered as an undeserving

appointee and therefore be removed from his office? 1
(1996 Bar)

A: He may be considered as undeserving and removed

from office. This problem falls squarely under the decision
of the Supreme Court in the case of Court Administrator v.
Estacion, 181 SCRA 33, wherein a complaint was filed
concerning the appointment of a Regional Trial Court
judge notwithstanding the fact that he was then facing
criminal charges for homicide and attempted homicide.
The Judge also claimed that (a) he enjoys the presumption
of innocence, (b) the said cases, even if sustained, do not
involved moral turpitude, and (c) before an administrative
complaint based on a criminal prosecution is given due
course, there must be a conviction by final judgment. The
Supreme Court held:

“The argument that he had not yet been convicted and

should be presumed innocent is beside the point, and so is
the contention that the crimes of homicide and attempted
homicide do not involve moral turpitude. The important
consideration is that he had a duty to inform appointing
authority and this Court of the pending criminal charges
against him to enable them to determine on the basis of
his record, eligibility for the position he was seeking. He
did not discharge that duty. His record did not contain the
important information in question because he deliberately
withheld and thus effectively hid it. His lack of candor is as
obvious as his reason for suppression of such vital fact,
which he knew would have been taken into account
against him if it had been disclosed.
As stressed in the report, it behooves every prospective
appointee to the judiciary to apprise the appointing
authority of every matter bearing on his fitness for judicial
office, including such circumstances as may reflect on his
integrity and probity. These are qualifications specifically
required of appointees to the judiciary under Article VIII,
Sec. 7 (3) of the Constitution. The fact alone of his
concealment of the two criminal cases against him is clear
proof of his lack of the said qualifications and renders him
unworthy to sit
as a Judge."

The respondent Judge was accordingly removed from

office.

That (a) he has not heretofore commenced any action of

filed an claim involving the same issued in any court,
tribunal or quasi-judicial agency, and to the best of his
knowledge, no such other action or claim is pending
therein; and (b) if he should thereafter learn that the same
of similar action or claim has been filed or is pending, he