Professional Documents
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Canons 17 - 20 IV-The-Lawyer-and-the-Client-Part-II
Canons 17 - 20 IV-The-Lawyer-and-the-Client-Part-II
Elements of Prohibition
1. There is an attorney-client relationship;
2. The property is in litigation;
3. The attorney is the counsel of record in the case;
4. The attorney, by himself or through an agent, purchases such property during the
pendency of said case [Art. 1491 of the Civil Code]
The prohibition does not apply to instances, such as in the problem, where
the purchase of the big parcel of land by Attorney Xfrom A took place before it
became involved in litigation, notwithstanding Attorney X was the counsel of record
during litigation of the subject property. An attorney may, however, properly acquire
property not in his professional capacity but as a legitimate investment. The fact that
a person happens to be a lawyer does not deprive him of the privilege to engage in
business activities as enjoyed by any other person.
Attorney X did not commit any act of impropriety nor did he violate any law
culpable of disbarment. The case for his disbarment should be dismissed.
2. What are the overt manifestations that a lawyer is serving his client with competence
and diligence?
By accepting a retainer, a lawyer impliedly represents that he possesses
requisite degree of learning, skill, ability which is necessary to the practice of his
profession and which other similarly situated possess;
He will exert his best judgment in the prosecution or defense of the litigation
entrusted to him; he will exercise reasonable and ordinary care and diligence in the
use of his skill and in the application of his knowledge to his client’s cause; he will
take such steps as will adequately safeguard his client’s interest.
No. Pressure and large volume of legal work provide no excuse for the inability to
exercise due diligence. Counsel cannot presume that respondent court will take
cognizance of any other addresses that he may use in his pleadings, or assume that a
given address is his residence, for unless he files a notice of change of address, his
official address remains to be that of his address of record. It may well be a
temporary address or just one of the many offices maintained by counsel. At most, it
merely indicates (as was held in Lopez, supra) that the pleading was prepared in and
mailed from said place and therefore does not supersede his address of record.
Moreover, notices of court processes are ordinarily taken care of by clerks, who are
naturally guided by addresses of record. To require the court and its personnel before
sending out the notices, to be continuously checking the record and the various
addresses from which a counsel may have filed his pleadings and sending them to
such address(es) instead of his address of record which is duly recorded on the cover
of the Rollo is to sow confusion and add an intolerable burden which is not permitted
by the Rules of Court. (PHIL SUBURBAN DEVT. CORP vs.CA, G.R. No. L-33448 Sept.17,
1980)
The SC have held time and again that notices to counsel should properly be sent
to his address of record in the absence of due notice to the court of a change of
address. As held in Lopez vs. Delos Reyes, the fact that counsel used a different
address in later pleadings "should not be taken as notice to the court of either a
change of address or of another address in addition to that which was already of
record."
Yes. Some cases involve specialized fields of law and require special training.
A lawyer should not accept an undertaking in specific area of law which he knows or
should know he is not qualified to enter. However well- meaning he may be, a lawyer
cannot ask another lawyer to collaborate with him in a particular case without the
consent of the client. The fiduciary nature of attorney-client relationship prohibits
this. (Aguirre) &(Agpalo)
BASIS LEGAL ETHICS (5-6)
5. Atty. Primitivo, lawyer of Cresencio in a civil case, received an adverse decision on the
case. He entrusted to his secretary the duty to inform the client of the adverse
decision. The secretary informed the client rather late and with wrong information
that they still have a period of thirty days within which to appeal the decision.
Cresencio, thus, lost his opportunity to appeal the adverse decision. Cresencio filed
an administrative case for disbarment against Atty. Primitivo where the latter for his
defense passed the blame on his secretary. Is Atty. Primitivo guilty of negligence?
(Roldan Vs Panganiban, AC No. 4552, Dec. 14. 2004, Adaza vs Barinaga, AC No., 1604,
May 29. 1981)
Yes.
6. May lawyers be held liable for damages for negligence in the handling of a case?
Rule 18.03, Canon 18 of the CPR providesthat a lawyer shall not neglect a legal
matter entrusted to him and his negligence in connection therewith shall render him
liable.
In his Comment, respondent admits that he was counsel for the complainants in the
action for partition (the previous case) filed before the CFI of Bauang, La Union. He
also admits that he agreed to handle a new case, this time for recovery of ownership
and declaration of nullity of an extrajudicial partition, for complainants. Respondent
stated that in agreeing to accept the new case, he only relied on the order of the CFI
dated October 2, 1975, which he believed could still be enforced. He also believed
that the extrajudicial partition made by Zarate's heirs was null and void, owing to the
CFI's order of partition.Respondent likewise admits having received P10,000.00 from
complainants as acceptance fee. However, he claims to have "no recollection" as to
the status of the case filed before the CFI as it has been a long time ago and he hasno
more record of the case on file in his office.
Are the defenses of Atty. Libatique meritorious?
No. Atty. Libatique’s defenses are devoid of merit. It is his duty as a lawyer to
serve his client with competence and diligence and he should exert his best efforts to
protect the interest of his client.
Canon 18 provides that a lawyer shall serve his client with competence and
diligence.
Rule 18.03, Canon 18 of the CPR A lawyer is enjoined not to neglect a legal
matter entrusted to him, and his negligence in connection therewith shall render him
liable.
Rule 18.04. A lawyer shall keep the client informed of the status of his case
and shall respond within a reasonable time to the clients request for information.
Respondent cannot simply say that he lost track of the first partition case
because he had numerous other commitments to attend to. Like all professionals, he
is expected to devise ways to follow the course of his cases and to keep his files
updated. None of these would have happened had respondent been more mindful of
his responsibilities as an attorney.
Respondent breached his duty to his client when he conveniently forgot about
the appeal filed by Zarate. His negligence shows a glaring lack of the competence and
diligence required of every lawyer, and his admission of negligence does not mitigate
his liability. He cannot now shift the blame to complainants for failing to inquire
about the status of the case, since, as stated above, it was his duty as lawyer to
inform his clients of the status of cases entrusted to him. His failure to do so is an
infraction that the SC will not countenance.(Zarate-Bustamante vs. Libatique)
Clearly, there is want of required diligence when Atty. Libatique failed without
sufficient justification to notify and to update his client of the status of the case, of
the appeal the adverse party had taken, to take steps to have the adverse decision
reconsidered or appealed, to ascertain the correct date of receipt of decision, to
acquaint himself with what has happened to the litigation, though records revealed
that respondent was duly served court processes in connection with the appeal.
BASIS LEGAL ETHICS (8)
8. (a) Is a client bound by the negligence of his counsel? Reason.
Exceptions: (LIPIG)
Truly, a litigant bears the responsibility to monitor the status of his case, for
no prudent party leaves the fate of his case entirely in the hands of his lawyer. It is
the client’s duty to be in contact with his lawyer from time to time in order to be
informed of the progress and developments of his case; hence, to merely rely on the
bare reassurances of his lawyer that everything is being taken care of is not enough.
(Bejarasco,JR.,vsPeople)
(b) Explain the doctrine of imputed knowledge (notice to counsel is notice to client).
Note: Notice to counsel is notice to client, but not vice versa if the latter appeared by
attorney
General Rule: The law requires that service of any notice upon a party who has
appeared by attorney shall be made upon his attorney. Notice sent to a party who has
appeared by counsel is not notice in law, it being immaterial that the client actually
received the notice or volunteered to get a copy thereof.
BASIS LEGAL ETHICS (9)
9. (a) How far may a lawyer go in supporting a client’s cause?
Canon 19. A lawyer shall represent his client with zeal within the bounds of law.
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).
Rule 19.01. A lawyer shall employ only fair and honest means to attain the lawful
objectives of his client and shall not present, participate in presenting or threaten to
present unfounded criminal charges to obtain an improper advantage in any case or
proceeding.
Rule 19.02 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.
(b) What is the extent of a lawyer’s authority in handling a case for the client? Whose
will must prevail in the handling of the case – the lawyer’s or the client’s?
Rule 19.03. A lawyer shall not allow his client to dictate the procedure in handling the
case.
1. As to matters of procedure - it is the client who yields to the lawyer and not the
lawyer yielding to the client. (Lapena 2009)
NOTE: The basis of this rule is that the lawyer is better trained and skilled in law.
NOTE: Cause of action, claim or demand, and subject of litigation are within client’s
control. Proceedings to enforce the remedy are within the exclusive control of the
attorney.
BASIS LEGAL ETHICS (10)
10. Atty. Maximo prepared and sent a demand letter on behalf of his client wherein he
threatened the adverse party that should the latter fail to pay the amounts proposed
as settlement, he would file a case against them and would claim bigger amounts
including moral damages, as well as multiple charges such as tax evasion, falsification
of documents, and cancellation of business license to operate due to violations of
law. Was the move of Atty. Maximo ethical? Why?
No.
Canon 19. A lawyer shall represent his client with zeal within the bounds of law.
Rule 19.01. A lawyer shall employ only fair and honest means to attain the lawful
objectives of his client and shall not present, participate in presenting or threaten to
present unfounded criminal charges to obtain an improper advantage in any case or
proceeding.
This rule obligates a lawyer, in protecting the interest of his client, to employ only
such means as are consistent with truth and honor. Atty. Maximo should not file or
threaten to file multiple charges whether civil or criminal or that hewould claim
bigger amounts including moral damages against the adversaries of his client
designed to compel the adversaries to yield to the proposed monetary settlement
stated in the demand letter. The lawyer’s obligation to represent his client with zeal
and devotion must always be within the bounds of the law.
11. What is the duty of a defense counsel when his client intends to plead guilty to the
offense with which he is charged?
It is the duty of defense counsel when his client desires to enter a plea of guilty, to:
1. Fully acquaint himself with the records and surrounding circumstances of the case;
2. Confer with the accused and obtain from him his account of what had happened;
3. Advise him of his constitutional rights;
4. Thoroughly explain to him the import of a guilty plea and the inevitable conviction
that will follow; and
5. See to it that the prescribed procedure which experience has shown to be
necessary to the administration of justice is strictly followed and disclosed in the
court records.
12. Conrado, client of Atty. Carreon, intimated to him that he intends to liquidate the
essential witnessin the criminal case where Conrado is the accused.
A lawyer should use his best efforts to restrain and to prevent his client from
doing such unlawful act, he has the moral obligation to advise his client not to
continue with his plan, if his client persists to continue with his wrongdoings,
particularly with reference to the conduct toward the court, judicial officer, witness
and suitor, then Atty. Carreon should terminate their relation.
(b) Suppose the information that Conrado bribed the Judge was disclosed by him to
Atty. Carreon after the act had already been consummated, what must Atty. Carreon
do?
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 accordancewith the Section 26, Rule 138 of the Rules
of Court. As provided for by Rule 19.02 of Canon 19, a lawyer shall not allow his
client to perpetrate fraud. He shall promptly advise the client to rectify the same, and
if the client refuses to heed the lawyer's advice for rectification, the lawyer must
withdraw from the case (People v. Sandiganbayan, 275 SCRA 505)
(c) Relative to question (b), may Atty. Carreon report his client to the authorities for
the filing of a bribery case against him?
No. Rule 19.02 merely requires 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.
NOTE: Generally, the amount of attorney’s fees due is that stipulated in the
retainer agreement which is conclusive as to the amount of lawyer’s
compensation (Funa, 2009) unless the stipulated amount in the written
contract is found by the court to be unconscionable or unreasonable. (Sec. 24,
Rule 138, RRC)
In the absence thereof, the amount of attorney’s fees is fixed on the basis of
quantum meruit. (Sesbreno v. Court of Appeals, G.R. No. 117438, June 8,
1995; Funa, 2009)
14. What is/are the difference/s between ordinary and extraordinary attorney’s fees?
15. Discuss what is QUANTUM MERUIT. Cite at least five examples when lawyer’s fee will
be on quantum meruit basis.
Quantum Meruit− means as much as the lawyer deserves or such amount as his
services merit.
Determining Attorney’s Fees on Quantum Meruit Basis (TINS)
1. Time spent and extent of the services rendered or required – a lawyer is justified
in fixing higher fees when the case is so complicated and requires more time and
effort to finish it.
2. Novelty and difficulty of questions involved – when the questions in a case are
novel and difficult, greater effort, deeper study and research are bound to burn the
lawyer’s time and stamina considering that there are no local precedents to rely upon
3. Importance of subject matter − the more important the subject matter or the
bigger the value of the interest of property in litigation, the higher is the attorney’s
fees
4. Skill demanded of a lawyer − the totality of the lawyer’s experience provides him
the skill and competence admired in lawyers.
2. When although there is a formal contract for attorney’s fees, the fees stipulated
are found unconscionable.
3. When the contract for attorney’s fees is void due to formal matter.
4. When for justifiable cause the lawyer was not able to finish the case.
5. When the lawyer and the client disregard the contract for fees.
6. When the client dismissed his counsel before the termination of the case or the
latter withdrew therefrom for valid reasons.
BASIS LEGAL ETHICS (16)
16. Differentiate retaining lien and charging lien.
ATTORNEY’S LIEN
1. Charging Lien - is an equitable right to have the fees and lawful disbursements due
a lawyer for his services in a suit secured to him out of the judgment for the payment
of money and executions issued in pursuance thereof in the particular suit.
CONTINGENT FEE – payment which may be stipulated uponby the attorney and
clientthat is conditioned on the securing of a favorable judgment and recovery of
money or property and the amount of which may be on a percentage basis.It is
allowed since it neither gives nor purports to give to the attorney an absolute right,
personal or real, in the subject matter during the pendency of the litigation; the
measure of compensation provided is a mere basis for the computation of fees and
the payment made from the proceeds of the litigation is effected only after its
successful termination.
CHAMPERTOUS CONTRACT- one where the lawyer stipulates with his client in the
prosecution of the case that he will bear all of the expenses for the recovery of things
or property being claimed by the client, and the latter agrees to pay the former a
portion of the thing or property recovered as compensation. It is void for being
against public policy; it is purchasing an interest in the litigation to enable a lawyer to
litigate on his own account or to abuse the client’s confidence which is prohibited.