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    08 2019 Ethics

    Uploaded by

    Hannah Sy

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    © All Rights Reserved
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    Training & Convention Division University of the Philippines Law Center SUGGESTED ANSWERS TO THE 2019 BAR EXAMINATIONS IN. LEGAL AND JUDICIAL ETHICS. PARTI Al. Atty. A, a duly licensed notary public, has maintained several notarial registers in his separate offices in order to cater to the needs of his clients and accommodate their growing number. Due to Atty. A's busy schedule, Atty. A's secretary would usually perform the notarial acts on his behalf. Sometime in April 2017, Mrs. B, an Overseas Filipino Worker staying in Singapore, sought the legal services of Atty. A for the nullification of her Qmarriage. Consequently, Atty. A drafted a petition with verification which was sent from his law office in Manila to Singapore for the signature of <{Mrs. B, who, after signing the same, sent it back to Atty. A. When the document arrived in Atty. A's office, his secretary, as per usual practice, notarized the signed document upon Atty. A's instruction. a © a) Name at least two (2) violations of the Rules on Notarial Practice ~ committed by Atty. A. (3%) SUGGESTED ANSWER: Atty. A violated Section 1 (a) and (b), Rule VI of the Rules on Notarial Practice for simultaneously keeping several active notarial registers in several offices. These provisions respectively require a notary public to "keep, maintain, protect and provide for lawful inspection, a chronological official register of notarial acts consisting of a permanently bound book with numbered papers" and to "keep only one active notarial register at any given time." (Gimeno v. Zaide, A.C. No. 10303, April 22, 2015) Atty. A also violated Section 2 (b) (1), Rule IV of the Rules on Notarial Practice which prohibits the performance of a notarial act if the person involved as signatory to the instrument or document is not in the notary's presence personally at the time of the notarization. (Almario v. Llera-Agno, A.C. No. 10689, January 8, 2018) UP LAW TRAINING AND CONVENTION DIVISION| BRICDNAPA2020| Page 1 of 21 Atty. A further violated the Rules on Notarial Practice for allowing his secretary to perform official acts of a notary public on his behalf. Under Section 9, Rule II of the Notarial Rules, a "Notary Public" refers to any person commissioned to perform official acts. A notary public's secretary is not commissioned to perform such official acts of a notary public. (Angeles, Jr. v. Bagay, A.C. No. 8103, December 3, 2014). A notarial commission is personal to each lawyer; hence, the notary public must personally administer the notarial acts that the law authorizes him to execute. (Gimeno v. Zaide, A.C. No. 10303, April 22, 2015) (b) May Atty. A be also held liable under the Code of Professional Responsibility for the same infractions committed by him as a notary public? Explain. (2%) SUGGESTED ANSWER: Yes, Atty. A may be held liable under the Code of Professional Responsibility (CPR) for the same infractions. For his failure to strictly comply with the Rules on Notarial Practice regarding notarial registers, Atty. A violated Canon 1 of the Code which mandates the obedience of every lawyer to laws and legal processes. (Roa-Buenafe v. Lirazan, A.C. No. 9361, March 20, 2019) g For notarizing the document without the personal presence of Mrs. Sb, Atty. A violated Rule 1.01 of the CPR, which proscribes a lawyer from engaging in any unlawful, dishonest, immoral, and deceitful conduct. (Ko v. Uy-Lapmasa, A.C. No. 11584, March 6, 2019) Finally, for allowing his secretary to perform notarial acts, he Oviolated Canon 9, Rule 9.01 of the Code of Professional Responsibility Qwhich states that "a lawyer shall not delegate to any unqualified person Othe performance of any task which by law may only be performed by a member of the Bar in good standing." (Roa-Buenafe s. Lirazan, A.C. No. 9361, March 20, 2019) (©) What does the phrase "competent evidence of identity" refer to under the Rules on Notarial Practice? (3%) SUGGESTED ANSWER: The phrase "competent evidence of identity" under the Rules on Notarial Practice refers to the identification of an individual based on: (a) at least one current identification document issued by an official agency bearing the photograph and signature of the individual; or (b) the oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who UP LAW TRAINING AND CONVENTION DIVISION |BRICDNAPA2020 |Page 2 of 21 each personally knows the individual and shows to the notary public documentary identification. (Section 12, Rule II, Rules on Notarial Practice) A2. Y, who is a businessman, and Atty. X are good friends. Due to their closeness, Atty. X was able to borrow P300,000.00 from Y, which amount was intended to refurbish Atty. X's law office. Months after, Y got into a contractual dispute with Z, one of his business partners. Hence, Y sought the legal services of Atty. X for the filing of the proper action against Z. In consideration for his legal services, Y paid Atty. X an acceptance fee of P50,000.00. Unfortunately, Atty. X and Y's relationship turned sour. Thus, all communications between them were cut, and worse, Atty. X failed to file the required initiatory pleading against Z on the date agreed upon. Aggrieved, Y filed an administrative complaint, seeking that Atty. X be sanctioned and that the P50,000.00 acceptance fee and the P300,000.00 personal loan be returned to him. (a) What administrative violation/s did Atty. X commit, if any? g Explain. (3%) Oo SUGGESTED ANSWER: a 3 For borrowing money from his client, Atty. X violated Canon 16, ORule 16.04 of the CPR, which states that “a lawyer shall not borrow Omoney from his client unless the client's interests are fully protected by {the nature of the case or by independent advice.” Atty. X's failure to file Othe required initiatory pleading on the date agreed upon also amounts to a violation of Canon 18, Rule 18.03 of the CPR, which states that "a lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable." (b) May V's prayer for the return of the P50,000.00 acceptance fee and the P300,000.00 personal loan prosper? Explain. (5%) SUGGESTED ANSWER: Y's prayer for the return of the 50,000.00 acceptance fee will prosper, considering that said claim involves money received by the lawyer from his client in view of his professional engagement (Lopez v. Cristobal, A.C. No. 12146, October 10, 2018), especially since Atty. X had not performed any service at all. UP LAW TRAINING AND CONVENTION DIVISION |BRICDNAPA2020 |Page 3 of 21 On the other hand, Y's prayer for the return of the P300,000.00 personal loan in the administrative case will not prosper because said claim is purely civil in nature and is not related to Atty. X's professional engagement. (Lopez v. Cristobal, A.C. No. 12146, October 10, 2018) Disciplinary proceedings do not involve private interest and do not afford redress for private grievance. They are undertaken and prosecuted solely for the public welfare and the purpose of disbarment is mainly to determine the fitness of a lawyer to continue acting as an officer of the court and as participant in the dispensation of justice. (Sosa v. Mendoza, A.C. No. 8776, March 23, 2015) AB. Pending resolution of a high-profile case against him, Justice K uttered, in a public forum hosted by a local Integrated Bar of the Philippines chapter, his comments on the perceived bias of the court against him, as well as on the issues raised by the complainants, his defenses, and the commentaries published by Some local newsmen in relation to the case. This is only one instance of his many appearances in different gatherings of such nature in order to defend his public Image. (a) Did Justice K, in his capacity as a lawyer, commit any violation of the Code of Professional Responsibility? If so, what rule did Justice K violate? Explain. (3%) SUGGESTED ANSWER: NAPA2020 Yes, Justice K violated Canon 13 , Rule 13.02 and Canon 11 of the Gcode of Professional Responsibility. His public statements tend to Qinfluence the public and the Members of the Court, and to attack the Qdignity and authority of the institution. By raising comments on the perceived bias of the court against him, his statements went beyond the supposed arguments and contentions contained in his and the complainant's pleadings. His public utterances do not only tend to arouse public opinion on the matter but such speeches and interviews given by Justice K in different forums indisputably tend to tarnish the Court's integrity and unfairly attribute false motives against its Members. (Re: Republic v. Sereno, A.M. No. 18-06-01-SC, July 17, 2018) (b) Arguing that he should be treated as any other ordinary litigant in the said case, may Justice K validly claim that his comments were made in a purely private capacity and hence, not subject to administrative sanction? Explain. (3%) UP LAW TRAINING AND CONVENTION DIVISION |BRICDNAPA2020 |Page 4 of 21 SUGGESTED ANSWER: No, Justice K may not validly claim that his comments are not subject to administrative sanction because they were made in a purely private capacity as a party-litigant. Lawyers must conduct themselves with great propriety and their behavior must be beyond reproach anywhere and at all times, whether they are dealing with their clients or the public at large. Any errant behavior on the part of a lawyer and/or a judge, whether in their public or private activities, which tends to show said lawyer/judge deficient in moral character, honesty, probity or good demeanor, is sufficient to warrant suspension or disbarment. (Re: Republic v. Sereno, A.M. No. 18-06-01-SC, July 17, 2018) AA, Mr. L sought legal advice from his lawyer, Atty. M, regarding the possibility of annulling his marriage. In the course of their conversation, Mr. L mentioned that he would be able to immediately pay Atty. M's legal fees because he received a huge kickback from a favored supplier in relation to his work as member of his Municipality's Bids and Awards Committee. (a) Is the communication made by Mr. L to Atty. M regarding the kickback he received presumed to be confidential? Explain. (3%) 020 SsuGGESTED ANSWER: a x No, the communication made by Mr. L to Atty. M regarding the Fkickback he received is not presumed to be confidential. Indeed, the Orelationship between attorney and client is strictly personal and highly Qconfidential and fiduciary. However, matters disclosed by a prospective client to a lawyer are only presumed to be confidential when: 1) There is a prospective attorney-client relationship and it is by reason of this relationship that the client made the communication; 2) The client made the communication in confidence; and 3) The legal advice must be sought from the attorney in his professional capacity. The third requirement means that the communication is not intended for mere information, but for the purpose of seeking legal advice from his attorney as to his rights or obligations. (Jimenez v. Atty. Francisco, A.C. No. 10548, December 10, 2014; Mercado v. Vitriolo, A.C. No. 5108, May 26, 2005) In the instant case, the communication regarding the kickback was merely mentioned by Mr. L for the purpose of informing Atty. M that he would be able to immediately pay the latter's legal fees, and not for the purpose of obtaining his legal advice regarding the annulment case he was planning to file. Thus, although there is a prospective attorney-client relationship between them and the communication was made in confidence, the information was not given for the purpose of seeking UP LAW TRAINING AND CONVENTION DIVISION |BRICDNAPA2020 |Page 5 of 21 legal advice and therefore not covered by the rule on privileged communication. (b) What is the duty of a lawyer when, in the course of his representation, he discovered that his client committed fraud upon a person or a tribunal? (2%) SUGGESTED ANSWER: Under Rule 19.02 of the CPR, the lawyer has the duty to order his client to rectify such fraud. If the client refuses to do so, the lawyer shall terminate his relationship with said client in accordance with the Rules of Court. AS. P was dismissed by his former employer, Company X, for allegedly misappropriating company funds entrusted to him. P alleged that there was no proof to substantiate the same; hence, his dismissal was invalid. Aggrieved, P engaged the services of ABCDE Law Office to represent him in an illegal dismissal case against Company X. Atty. A, a partner of the said law firm, was assigned to handle P's case. Eventually, the illegal dismissal case was terminated upon settlement Iby all parties, and thus, P's engagement with ABCDE Law Office ceased. IAPA2020 Two (2) years after, a criminal case for Qualified Theft was filed by Zcompany X against P based on the same events which led to his dismissal. Oo his surprise, P found out that Company X was being represented by Q2ABCDE Law Office in the criminal case. Decrying a violation of the rule on COconflict of interest, P filed an administrative complaint against Attys. A, B, C, D, and E, the partners of ABCDE Law Office. (a) Was the rule on conflict of interest violated in this case? Explain. (3%) SUGGESTED ANSWER: Yes, the rule on conflict of interest was violated. A lawyer should not file a case against a previous client, whether or not the two cases are related. “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. Valencia, AC 10587, Feb. 25, 2015) UP LAW TRAINING AND CONVENTION DIVISION |BRICDNAPA2020 |Page 6 of 21 (b) Is the prior termination of P's engagement with ABCDE Law Office a valid defense to the administrative charge against Attys. A,B,C, D, and E? Explain. (2.5%) SUGGESTED ANSWER: No, the prior termination of P's engagement with ABCDE Law Office is not a valid defense. The rule on conflict of interest does not only apply to present clients but to former clients as well. A lawyer owes his former client to maintain inviolate the client's confidence or to refrain from doing anything which will injuriously affect the client in any matter in which the lawyer previously represented him. (Canillo v. Angeles, A.C. No. 9899, et al., September 4, 2018) (©) May Attys. B, C, D, and E be held administratively liable for violating the rule on conflict of interest despite the fact that it was only Atty. A, the handling lawyer, who had knowledge of P's engagement as a client? Explain. (2.5%) SUGGESTED ANSWER: Yes, Attys. B, C, D, and E can be held administratively liable. Even though only Atty. A had knowledge of P’s engagement as a client, all of Qthe lawyers were part of ABCDE Law Office, and the acts of the law Coffice are also deemed to be the acts of the individual members of the Qtirm, and vice-versa. ABCDE Law Office as a firm is duty-bound to Qensure that there are no conflicts of interest between their past, present, Sand future clients. (Anglo v. Valencia, AC 10587, Feb. 25, 2015) Ab. BRICD! Atty. U was being investigated by the Integrated Bar of the Philippines regarding a complaint for immorality filed by his wife, Y. Pending resolution of the case, complainant Y filed an affidavit of desistance and withdrawal of the complaint on the ground that she mistakenly filed the complaint out of jealousy. What is the effect of V's filing of an affidavit of desistance and the withdrawal of her complaint in the administrative case against Atty. U? Explain. (2.5%) SUGGESTED ANSWER: A case for suspension or disbarment may proceed regardless of interest or lack of interest of the complainants, if the facts proven so warrant. It follows that the withdrawal of the complainant from the case, or even the filing of an affidavit of desistance, does not conclude the administrative case against an erring lawyer. (Spouses Rogelio Amatorio UP LAW TRAINING AND CONVENTION DIVISION |BRICDNAPA2020 |Page 7 of 21 and Aida Amatorio v. Atty. Francisco Dy Yap and Atty. Whelma F. Siton- yap A.C. No. 5914, March 11, 2015) Moreover, disbarment proceedings are sui generis, and so there can be no affidavit of desistance. AT. Every new lawyer must be acquainted with the consequences of non- compliance with the essential obligations attendant to the legal profession. Among these obligations are compliance with the requirements on Mandatory Continuing Legal Education (MCLE), and payment of Integrated Bar of the Philippines (IBP) dues. (a) What are the consequences of non-compliance with the requirements on MCLE? (2.5%) SUGGESTED ANSWER: Under the SC En Banc Resolution dated January 14, 2014 amending Bar Matter No. 1922, the failure of counsel to indicate in the pleadings the number and date of issue of his or her MCLE Compliance Certificate will no longer result in the dismissal of the case and the expunction of the pleadings from the records, but will only subject the counsel to the prescribed fine and/or disciplinary action. (Spouses Cruz v. Onshore QStrategies Assets (SPV-AMC), Inc, G.R. No. 212862, June 17, 2019) SMeanwhile, if a lawyer failed to comply with the MCLE requirements within the compliance period, Rule 13 of Bar Matter No. 850 lays down Q.the following consequences: 1) payment of non-compliance fee; and 2) Sisting as delinquent member. (Turla v. Caringal, A.C. No. 11641, March O12, 2019) (b) What are the consequences of non-payment of IBP dues? (2.5%) BRIC! SUGGESTED ANSWER: The consequences of non-payment of IBP dues are provided under Section 10, Rule 139-A of the Rules of Court, to wit: SECTION 10. Effect of non-payment of dues. — Subject to the provisions of Section 12 of this Rule, default in the payment of annual dues for six months shall warrant suspension of membership in the Integrated Bar, and default in such payment for one year shall be a ground for the removal of the name of the delinquent member from the Roll of Attorneys. UP LAW TRAINING AND CONVENTION DIVISION |BRICDNAPA2020 |Page 8 of 21 AS. A lawyer advertised in the newspaper the following: "Expert in annulment of marriage, Fast and sure, Consult any time." Is the advertisement proper? Explain. (2.5%) SUGGESTED ANSWER: No, the advertisement is not proper. In the case of Khan v. Simbillo, involving similar facts, the Supreme Court held that an advertisement where a lawyer refers to himself as a “specialist” is self- laudatory, which is improper advertising violative of Rule 2.03 and 3.01 of the CPR. The same thing is true by a lawyer calling himself an expert in a field of law such as in this case. Moreover, by claiming that the annulment of a marriage is “fast and sure”, the lawyer makes it appear that it is easy to annul a marriage, and couples who would not think otherwise will be attracted to securing an annulment. This is against the constitutional policy of protecting a marriage. (Atty. Khan, Jr. v. Atty. Simbillo, A.C. No. 5299, August 19, 2003) Ad. PA2020 Mr. 0 was disbarred from the practice of law in 2009 for gross immorality. Ten (10) years later, at age 58, he asked for judicial clemency Zand filed a petition for his reinstatement in the Roll of Attorneys. Mr. 0 had lasked forgiveness from his children and maintained a cordial relationship

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