2020/21 Bar Examinations

Procedure and Professional Ethics

Suggested Answers
By: Ramon S. Esguerra

1.
A search warrant was issued authorizing the police
to search for and seize (a) documents that will show that
the respondent is guilty of swindling and estafa; (b)
copies of bounced checks; and (c) all other relevant
matters.

Is the search warrant valid? Explain briefly.

Suggested Answer:

No, the search warrant is not valid because it is broad

and does not sufficiently describe the things to be
searched and seized.

According to the Rules of Criminal Procedure, for the

warrant to be valid, it must describe the person and place
to be searched and the particular things to be seized (Rule
126, Section 4).

2.
The last day of a losing party to file a notice of
appeal from the Regional Trial Court to the Court of
Appeals fell on June 12, a legal holiday. The day after, or
on June 13, the counsel for the losing party moved that
the period within which to file a notice of appeal be
extended for 10 days, citing the counsel's “humongous”
case load, among others.

On June 23 that same year, without the motion for

extension being acted upon, the counsel for the losing
party filed a notice of appeal.

Should this appeal be dismissed? Explain briefly.

Suggested Answer:

Yes, the appeal should be dismissed because it was

filed beyond the reglementary period for appeal.

The right to appeal is a mere statutory privilege and

must be exercised only in the manner and in accordance
with the provisions of the law. Failure to do so leads to the
loss of the right to appeal (See Nueva Ecija Electric
Cooperative v. Mapagu, G.R. No. 196084, 15 February 2017).

3.
The spokesperson of a special unit of the Armed
Forces of the Philippines announced in a television
interview that the Armed Forces was putting all
progressive and left-leaning party-list representatives
under surveillance for alleged links to the ongoing
insurgency.

An outspoken and progressive party-list

representative approaches you for advice on how to
discover the information that the Armed Forces may
have collated through the surveillance operations.

Will a petition for the writ of habeas data be the

proper remedy? Explain briefly.

Suggested Answer:

No, the writ of habeas data is not applicable.

The extraordinary writ of habeas data provides a

judicial remedy to protect a person's right to control
information regarding oneself, particularly in instances
where such information is being collected through
unlawful means in order to achieve unlawful ends (See
Bayan Muna Party-List v. Aquino G.R. No. 220028, 10
November 2015)

In this case, petitioners fail to show how their right to

privacy is violated given that the information obtained are
of public knowledge and are readily accessible since they
are party-list representatives and public personalities.

4.
Upon learning of her husband's death, the wife and
their daughter went to a funeral parlor where the
husband's remains lay. The husband had been killed in
a military encounter in the hinterlands. He had been
suspected as one of the members of an insurgent group,
which had been yearning for the violent overthrow of
the status quo for more than 50 years.
 Upon arriving at the funeral parlor, the wife and the
daughter found that the premises were guarded by
heavily armed individuals clad in military uniform.
These individuals accosted the wife and the daughter
when they attempted to approach the husband's casket.
The two were then interrogated for almost an hour.

Fearing for their lives, the wife and the daughter

hurriedly left after the interrogation.

On their way home, they noticed a red car following

them. The same car, which carried individual sporting
crew cuts, parked in front of their home for several days.
The daughter noted the car's license plate and called the
local police for assistance. The local police simply
laughed at her, saying that they should just cooperate
with the military and reveal all that they knew or they
would also suffer the same fate as her father.

Will a petition for the writ of amparo prosper for the

wife and the daughter? Explain briefly.

Suggested Answer:

Yes, a Petition for the Writ of Amparo will prosper.

The Writ of Amparo is a protection extended to

petitioners where threats to life, liberty and security
emanate from the military, police and other state security
forces (See In the matter of Petition for Writ of Amparo of
Vivian A. Sanchez, G.R. No. 242257, 15 October 2019).
 The accosting of the wife and daughter, laughing at
them for their concerns, and threatening them to speak
against her deceased husband were actual or imminent
threats against the petitioner and her children.

5.
In an Information, a man was charged with having
forcible carnal knowledge of a 16-year-old woman. The
Information did not contain any allegation concerning
the victim's relationship with the accused.

During the direct examination of the victim, the

prosecution was able to elicit information that the
accused was the 16-year-old woman's father. The defense
counsel failed to object to the testimony, having also
been surprised by the revelation.

After trial, the judge convicted the accused of

simple rape and imposed the corresponding penalty.
The prosecution moved for reconsideration, claiming
that the accused should be convicted of qualified rape
and not simple rape because the relationship between
the victim and the accused was proven, even as it had
not been alleged in the Information.

Is the prosecution legally correct? Explain briefly.

Suggested Answer:

No, the prosecution is not correct.

 According to the Rules on Criminal Procedure, the
information shall state the designation of the offense given
by the statute, aver the acts or omissions constituting the
offense, and specify its qualifying and aggravating
circumstances (Section 8).

Since the information did not allege the qualifying

circumstance of relationship, the Court cannot appreciate
the same in rendering its conviction. Otherwise, the
accused’s right to be informed of the offense charged is
violated. (See People v. Lapore, G.R. No. 191197, June 2015).

6.
Will a petition for mandamus lie to compel the
Secretary of Foreign Affairs to convene representatives
of neighboring countries similarly situated with the
Philippines in order for them to find diplomatic
solutions to enforce the Arbitral Award relating to the
West Philippine Sea? Explain briefly.

Suggested Answer:

No, a petition for mandamus will not lie as there is no

duty under the law which the DFA Secretary failed to
perform.

Rule 65 of the Rules of Court provides that a petition

for mandamus may be filed when any tribunal,
corporation, board, officer or person unlawfully neglects
the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station
(Section 3).

In this case, the petition will not prosper since the

DFA Secretary does not have a ministerial duty to convene
the representatives.

7.
Can dolphins be plaintiffs in a suit to enjoin a land
reclamation that will affect a biodiverse coral reef?
Explain briefly.

Suggested Answer:

Yes, Dolphins can be plaintiffs in a suit but it is

imperative that they be represented in a citizen’s suit by
their stewards.

Under the Rules on Civil Procedure, only natural or

juridical persons, or entities authorized by law may be
parties in a civil action (Rule 3, Section 1). Nevertheless,
under the Rules of Procedure in Environmental Cases, any
Filipino citizen may file a citizen suit on behalf of minors
and generations yet unborn to enforce rights under
environmental laws (Rule 2, Section 5; See Resident Marine
Mammals v. Secretary Reyes, G.R. No. 180771, 21 April 2015)

8.
Is the printout of a photograph from your mobile
phone showing a fly in the soup you ordered admissible
evidence in an action for damages against the restaurant
owner? Explain briefly.
Suggested Answer:

Yes, the printout of the photograph is admissible.

Aside from being relevant and competent, the printout is
considered as an original document under the Revised
Rules on Evidence. Rule 130, Section 4(a) provides that an
original of a photograph includes any print thereof.

9.
Inspired by the movie On The Job, the
Superintendent of the New Bilibid Prison, without any
court order, transferred 10 persons deprived of liberty to
an agricultural farm in Davao del Norte to plant camote.
The owner of the agricultural farm promised to ensure
that the persons deprived of liberty would not escape
and would always wear the proper uniforms.

Two of these 10 persons deprived of liberty found a

way to approach you and suggested that you file a
petition for the writ of habeas corpus on their behalf.
The persons deprived of liberty added that they had no
family in Davao and that their families had no means to
visit them there.

Is a petition for the writ of habeas corpus the proper

remedy for their case? Explain briefly.

Suggested Answer:

No, a petition for the issuance of a writ of habeas

corpus is not proper remedy since their deprivation of
liberty is lawful. The persons are serving their sentence by
virtue of a valid final judgement.

The prerogative writ of habeas corpus is a speedy and

effectual remedy to relieve persons from unlawful
restraint by having the court ascertain whether he is held
under lawful authority. Thus, if a person's liberty is
restrained by some legal process, the writ of habeas
corpus is unavailing (See In Re: Abellana v. Paredes, G.R.
No. 232006, 10 July 2019).

However, the Superintendent may be fined for

transferring the 10 persons deprived of liberty from the
New Bilibid Prison to Davao Del Norte without any court
order.

(Note: Rule 102, Section 18 provides that “[a] person

committed to prison, or in custody of an officer, for any
criminal matter, shall not be removed therefrom into the
custody of another unless by legal process, or the prisoner
be delivered to an inferior officer to carry to jail, or, by
order of the proper court or judge, be removed from one
place to another within the Philippines for trial, or in case
of fire epidemic, insurrection, or other necessity or public
calamity; and a person who, after such commitment,
makes signs, or counter-signs any order for such removal
contrary to this section, shall forfeit to the party aggrieved
the sum of one thousand pesos, to be recovered in a
proper action.)

10.
On her deathbed, your grandmother revealed to you
that in 1994, she and her family won a civil action for
damages against a former President for human rights
atrocities committed against them during martial law.

The judgment was never appealed.

Your grandmother informed you that she never had

the judgment executed because she wanted this to be her
parting gift for you when she passed. She said that she
also felt the need to wait for one of her grandchildren to
become a lawyer. It so happened that you have just
passed the #BestBarEver2020_21.

Your grandmother spent her last moments narrating

how she had been arrested by the military during
martial law, and was then tortured and raped while
under detention. She emphasized that her case was not
unique, and that until now, she was yet to receive an
apology from any member of the former President's
family.

With her last breath, she instructed you not to let

her experience happen again. Her parting words to you
were: “Never again!”

Is an action for revival of judgment the proper

remedy to enable the judgment's execution? Explain
briefly.

Suggested Answer:

No, the action for revival of judgment is not the

proper remedy.
 Once a judgment becomes final and executory, the
prevailing party can have it executed as a matter of right
by mere motion within five (5) years from the date of
entry of judgment, or by independent action for revival of
judgment after the lapse of five (5) years from entry, and
before it its barred by the statute of limitations. (Section 6,
Rule 39, Rules of Court). Under Article 1143(3) of the Civil
Code, actions upon a judgment must be brought within
ten (10) years from entry of judgment.

Since more than 10 years had passed after the 1994

case for civil damages, the action had already prescribed.
(See Rufa A. Rubio et al. v. Lourdes Alabata, G.R. No. 203947,
26 February 2014)

11.
A party, through counsel, filed a complaint to
nullify the extrajudicial foreclosure of mortgage done by
a creditor bank. The bank had already filed its answer.
However, the counsel for the plaintiff felt that the judge
was partial to the defendant's counsel.

Wanting to bolster the chances of winning for their

client, the counsel for the plaintiff filed a second case
against the same bank seeking to nullify the same
extrajudicial foreclosure, but this time adding a prayer
for the award of damages.
The second case was raffled to another judge.
 The defendant bank's counsel then moved to
dismiss the second case.

Will the motion prosper? Explain briefly.

Suggested Answer:

Yes, the motion to dismiss will prosper as there is

forum shopping and litis pendentia.

To determine whether a party violated the rule

against forum shopping, the most important factor to ask
is whether the elements of litis pendentia are present, or
whether a final judgment in one case will amount to res
judicata in another (See Young v. Keng Seng, 446 Phil. 823,
832 (2003).

All the elements of litis pendentia are present in this

case. There is identity of parties, the rights asserted and
the relief prayed for are founded on the same facts, and
that judgment in any of the cases would result in res
judicata in the other. (See Zamora v. Quianan, G.R. No.
216139, 29 November 2017)

12.
Two years after receiving a copy of a decision
rendered by a Regional Trial Court, a party engaged a
counsel and asked them to work on reopening the case.
The party explained that it took two years to find the
best legal counsel available, and that counsel had to
await two years to pass the #BestBarEver2020_21.
 After perusing the judgment and the case records,
the counsel filed before the Court of Appeals a petition
for annulment of judgment under Rule 47 of the Rules
of Civil Procedure, asserting that the trial judge
improperly assessed the evidence and misapplied a
doctrine long adopted by the Supreme Court.

Will the petition for annulment of judgment

prosper? Explain briefly.

Suggested Answer:

No, the petition for annulment of judgment will not

prosper. The annulment may be based only on the
grounds of extrinsic fraud and lack of jurisdiction. Since
the petition did not allege extrinsic fraud or lack of
jurisdiction, then no annulment may be had (Sec. 2, Rule
47 of the Rules of Civil Procedure, as amended)

13.
While attending a wedding, a lawyer got to dance
with and talk to another guest who ended up sharing
details of their marital problems. When asked by the
guest, the lawyer explained the distinctions among legal
separation, annulment, declaration of nullity, and
divorce. The lawyer went on to not only extend advice,
but even to map out a strategy on how the guest's marital
woes could be addressed.
 At the end of the conversation, the lawyer and the
guest agreed to meet at a later time to continue their
discussion.

After the dance, the lawyer returned to their seat

and shared with their best friend the guest's marital
problems.

Did the lawyer breach attorney-client privilege?

Explain briefly.

Suggested Answer:

Yes, the lawyer breached the attorney-client privilege.

An attorney-client relationship is established once a
lawyer is sought, in his professional capacity, for legal
advice or assistance. Thus, under Canon 17 of the Code of
Professional Responsibility, the lawyer already owes
fidelity to the cause of his client and he shall be mindful of
the trust and confidence reposed in him.

14.
During work, an overseas Filipino seafarer was
seriously injured after falling into the elevator shaft of a
foreign vessel. After initial treatment in Singapore, the
seafarer was flown to the Philippines to continue
medical treatment.

While the seafarer was confined in a hospital, two

paralegals representing a lawyer approached the seafarer
offering that lawyer's services at a significantly
discounted rate. They explained that they could sue the
employer for indemnity and added that the lawyer had a
good track record at the National Labor Relations
Commission. The paralegals even bragged about the
lawyer's connections at the Supreme Court.

The seafarer agreed to engage the lawyer's services.

The employer proposed to settle the case out of

court and eventually paid PHP5,000,000.00. The
employer deposited this amount in the lawyer's bank
account. The lawyer tried to remit PHP1,000,000.00 to the
seafarer, making it appear that the settlement was only
for that amount.

The seafarer refused to accept the amount of

PHP1,000,000.00, as no prior approval had been given to
the lawyer to settle the case. The seafarer filed a
complaint before the Supreme Court for the lawyer's
disbarment.

Does the seafarer have legal grounds to file the

complaint? Explain briefly.

Suggested Answer:

Yes, the seafarer has legal grounds to file the case for
disbarment. The lawyer violated Canon 16 of the Code of
Professional Responsibility (CPR), which states that a
lawyer must hold in trust all moneys and properties of his
client that may come into his possession, deliver the funds
and property of his client when due or upon demand, and
account for all money or property collected for or from
client. He also actively solicited his business by ambulance
chasing, which is also prohibited by the CPR. The
violation of the lawyer's oath and/or breach of the ethics of
the legal profession embodied in the CPR may, depending
on the exercise of sound judicial discretion, result in the
suspension or disbarment of a lawyer (See Palencia v.
Linsangan, A.C. No. 10557, 10 July 2018).

15.
The lawyer of an accused filed a motion to inhibit,
alleging as ground that the judge was the cousin of the
private complainant, which is within the fourth degree
of consanguinity

Should the judge inhibit? Explain briefly.

Suggested Answer:

Yes, the judge must inhibit. Under the Rules of Court,

no judge shall sit in any case in which he is related to
either party within the sixth degree of consanguinity or
affinity. (Rule 137, Rules of Court). As he is related to
private complainant within the fourth degree of
consanguinity, the judge should inhibit.

16.
A known tax lawyer in Iloilo became a member of
the Integrated Bar of the Philippines in 1974. This
lawyer later migrated to the United States and became
an American citizen in 1989. In 2006, the lawyer
reacquired their Philippine citizenship by taking the
oath of allegiance as a Filipino citizen before the
Philippine consulate in Washington, D.C. in the United
States.

The lawyer now intends to return to Iloilo and

resume legal practice.

Can this lawyer continue to practice law in the

Philippines? Explain briefly.

Suggested Answer:

The lawyer may resume their practice of law in the

Philippines but such right will not automatically accrue.
Under R.A. No. 9225, if a person intends to practice the
legal profession in the Philippines and they reacquire
Filipino citizenship pursuant to its provisions, he or she
shall apply with the proper authority for a license or
permit to engage in such practice. In this case, the lawyer
must secure the authority to practice from the Court
conditioned on payment of IBP annual membership dues
and professional tax, completion of at least 36 credit hours
of mandatory continuing legal education, and retaking the
lawyer’s oath. (See Petition for leave to resume practice of law,
Dacanay, B.M. No. 1678, 17 December 2007)

17.
JURAT

REPUBLIC OF THE PHILIPPINES)

_______________ ) S.S.
 SUBSCRIBED AND SWORN to before me on this __
day of __________ at _____________, affiant who is
personally known to me, and/or has satisfactorily proven
to me his/her identity through competent evidence,
exhibiting his/her _________________________________.

Doc. No. _____

Page No. _____
Book No. _____
Series of 2022.

18.
CERTIFICATION OF NON-FORUM SHOPPING

I, _________________________, of legal age, with

address at ___________________, under oath, state that:

1. I am the __________ in this case;

2. I caused the preparation of the foregoing

__________, and have read the contents thereof, all of
which are true and correct, of my own personal
knowledge or based on authentic records. Further, this
__________was not filed to harass, cause unnecessary
delay, or increase the cost of litigation of the opposing
party, and the factual allegations therein have evidentiary
support; and

3. I hereby certify that: (a) I have not commenced

any action or filed any other complaint or petition, except
for herein ___________, involving the same subject matter
or issues in any court, tribunal, or agency; and (b) if I
hereafter learn that a similar action or proceeding has been
filed or is pending before the Supreme Court, the Court of
Appeals, or any other tribunal or agency, I undertake to
report this fact to this Honorable Court within five (5)
days therefrom.

_______________________________
Affiant

REPUBLIC OF THE PHILIPPINES)

_______________ ) S.S.

SUBSCRIBED AND SWORN to before me on this __

day of __________ at _____________, affiant who is
personally known to me, and/or has satisfactorily proven
to me his/her identity through competent evidence,
exhibiting his/her _________________________________.

Doc. No. _____

Page No. _____
Book No. _____
Series of 2022.