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Rednotes Legal Ethics

Rednotes Legal Ethics

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Published by Joseph Rinoza Plazo

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Published by: Joseph Rinoza Plazo on Feb 11, 2012
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L
EGAL
E
THICS
 
&
 
P
RACTICAL
E
XERCISES
 
2005
C
ENTRALIZED
B
 AR 
O
PERATIONS
 
 N 
 O  S I   N  
 G 
I   C  S 
1
MOST FREQUENTLY ASKED BAR QUESTIONS
P
RACTICE OF
L
AW
 
PRACTICE OF LAW (1985, 1993, 1995, 1996, 1997, 2000, 2002)Question No. 1:What do you understand by ´practice of lawµ?Answer:
Generally, to engage in the practice of law is to do any of those acts which arecharacteristics of the legal profession. It embraces any activity, in or out of court, which requiresthe application of law, legal principle, practice or procedure and calls for legal knowledge, trainingand experience. It involves the carrying on of the calling of an attorney, usually for gain, acting ina representative capacity and rendering service to another. Engaging in the practice of lawpresupposes the existence of an attorney-client relationship. Hence, where a lawyer undertakes anactivity which requires knowledge of law but involves no attorney-client relationship, such asteaching law or writing law books or articles, he cannot be said to be engaged in the practice of hisprofession as a lawyer.
Question No. 2:A.
 
Is the practice of law a right or a privilege?B. Does the legislature have the power to regulate admission to the bar and thepractice of law?Answer:A.
 
T
he practice of law is basically a privilege because it is limited to persons of good moralcharacter with special qualifications duly ascertained and certified.
T
hus, only those persons areallowed to practice law, who by reason of attainments previously acquired through education andstudy, have been recognized by the courts as possessing profound knowledge of legal science.Attorneys are the court·s constituency ² to aid it in the administration of justice.
B.
 
C
ongress under the 1987
C
onstitution has no power to regulate admission to the Bar and thepractice of law. Unlike the 1935 and 1973
C
onstitutions, the 1987 constitution no longer providesfor the power of the legislature to repeal, alter and supplement the rules promulgated by theSupreme
C
ourt. Under the 1935
C
onstitution, the legislature had the power to repeal or alter therules promulgated by the Supreme
C
ourt although the power and the responsibility to admitmembers of the bar resides in the Supreme
C
ourt. Under the 1987
C
onstitution, however, theSupreme
C
ourt 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.
DUTIES OF A LAWYER (1985, 1988, 1994, 2000, 2004)Question No. 3:Being a lawyer and/or a member of the bar is an exceptional privilege worth aspiring foralthough it entails a lot of responsibilities and obligations (a) to the court; (b) to fellow lawyers;(c) to the clients; and lastly (d) to the public in general. Briefly discuss these obligations andresponsibilities.Answer:
A.
First and foremost among the duties of the lawyer is his duty to the court.
T
he chiefmission of an attorney is to assist in the administration of justice.
T
o this end, his client·s successin the case is subordinate. His primary responsibility is to uphold the cause of justice.
T
hus, the lawyer takes orders from the court and not from his client.
T
he lawyer mustalways maintain respect to the court. He must use respectful language. He must defend the
 
San Beda College of Law
 
L
EGAL
E
THICS
 
&
 
P
RACTICAL
E
XERCISES
 
   S
   A   N
   B
   E   D   A
   C
   O   L   L   E   G   E   O   F
   L
   A   W
 
2
dignity and respect to the court. He must also cooperate with the court by being ready with hiscase and by being punctual and candid with the court.
B.
T
he lawyer must maintain harmonious relations with the members of the bar. He must becandid and courteous with fellow lawyers. He should deal fairly and squarely with others and nottake undue advantage over them. No ill-feeling must be entertained by him against the lawyer ofan adverse party. According to the Supreme
C
ourt in
People vs. Sesbreno,
clients, not the lawyers,are the litigants so that all personalities between counsel and client should be avoided.He should also be a respectable member of the IBP and other bar associations. He must notencroach upon professional employment. He should not solicit cases and advertise his profession. 
C.
T
he lawyers owes entire devotion to his client, to protect his interest within the bounds oflaw and legal ethics. He must be candid with his client and advice him properly if he has no validcause of action.
T
he lawyer must also maintain absolute trust and not to demand unconscionable attorney·sfees. He should not reveal information obtained from him given in secrecy. Likewise, he shouldnot purchase the property which is the subject matter of litigation. He should not appear forconflicting interest.
D.
T
he attorney·s duties to the public is that he should set an example as a law abiding citizenand give due respect to the lawful authorities. He should not instigate unnecessary lawsuits.One important duty of the lawyer especially at this time is to defend cases of indigentlitigants for free. He must take active part in free legal aid services.
PROHIBITED APPEARANCE (1990, 1996, 2000)Question No. 4:Justice C recently retired. The parents of the victims of the OZONE Disco tragedyretained him in the case for damages which they filed against the owners of the Disco, QuezonCity officials and Quezon City. Can he appear as counsel for the victim·s parents? Explain.Answer:
Section 1 of Republic Act No. 910, as amended, provides that ´it is a condition of thepension provided for herein that no retiring justice or judge of a court of record or city ormunicipal judge during the time that he is receiving the said pension shall appear before any courtin any civil case wherein the government or any subdivision or instrumentality thereof is theadverse party or in any criminal case wherein an officer or employee of the government is accusedof an offense committed in relation to his office, or collect any fee for his appearance in anyadministrative proceedings to maintain an interest adverse to the Government, national, provincial,or municipal, or to any of its legally instituted officers.µ Inasmuch as the case being offered toJustice
C
is a civil case against not only the disco itself, but also against Quezon
C
ity and itsofficials, he will be violating the aforesaid condition if he appears as counsel for the victim·sparents in the said case.
APPEARANCE
 
OF
 
NON-LAWYERS
 
(1993,
 
1995,
 
1996,
 
1999,
 
2002)Question No. 5:Generally, only those who are members of the bar can appear in court.Are thereexceptions to this rule? Explain.Answer:
T
he exceptions to the rule that only those who are members of the bar can appear in courtare the following:a)
 
In the municipal trial court, a party may conduct his litigation in person or with the aidof an agent or a friend
Sec. 34, Rule 138).
 
 
 
L
EGAL
E
THICS
 
&
 
P
RACTICAL
E
XERCISES
 
2005
C
ENTRALIZED
B
 AR 
O
PERATIONS
 
 N 
 O  S I   N  
 G 
I   C  S 
3
b)
 
In any other court, a party may conduct hislitigation personally
(id 
.)
, except in criminal cases for grave felonies where a partymust be represented by a counsel.c)
 
In criminal proceedings before a municipal trial court in a locality where a duly licensedmember of the bar is not available, the court may in its discretion admit or assign aperson, resident of the province of good repute for probity and ability, to aid thedefendant in his defense, although the person assigned is not a duly authorized memberof the bar
Sec. 4, Rule 116).
 d)
 
Any official or other person appointed or designated in accordance with the law toappear for the Government of the Philippines shall have all the rights of a dulyauthorized member of the bar to appear in any case which said government has aninterest, direct or indirect
Sec. 33, Rule 138).
 e)
 
A senior law student who is enrolled in a recognized law school·s clinical educationprogram approved by the Supreme
C
ourt may appear before any court withoutcompensation, to represent indigent clients accepted by the Legal
C
linic of the lawschool
Rule 138-A).
 f)
 
Non-lawyers may appear before the NLR
C
or any Labor Arbiter if they representthemselves or their labor organization or members thereof
 Art. 222, Labor Co
e).
 
 g)
 
Under the
C
adastral Act, a non-lawyer can represent a claimant before the cadastralcourt
Sec. 9, Act 2259).
CHAMPERTOUS CONTRACT (1988, 1990, 1999, 2000)Question No. 6:Atty. A·s services as a lawyer were engaged by B to recover from C certain constructionmaterials and equipment. Because B did not have the means to 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 ascompensation for his professional services. May Atty. A correctly agree to such arrangement? Answer:
No, Atty. A may not correctly agree to such an agreement. Such an agreement wouldconstitute a champertous contract which is considered void due to public policy, because it wouldmake him acquire a stake in the outcome of the litigation which might lead him to place his owninterest above that of the client (
B
aut
i
sta vs. Gonzales, 182 SCRA 151)
. A champertous contract isone in which a lawyer undertakes to prosecute a case, and bear all the expenses in connectiontherewith without right of reimbursement, and will be paid his fees by way of a portion of theproperty or amount that may be recovered, contingent on the success of his efforts. It is differentfrom a contingent fee contract, which is valid, in which the lawyer will also be paid depending onthe success of his efforts, but he does not undertake to shoulder all the expenses in the case. Hemay advance such expenses but always subject to reimbursement by his client.
Question No. 7:Is a contingency fee contract not violative of Article 1491 of the Civil Code?Answer:
No, because the litigation is already terminated.
FORUM SHOPPING (1991, 1995, 1997, 1998, 2002, 2003)Question No. 8:What is your understanding of forum shopping? What are the possible consequences?
 
Answer:
Forum shopping is the improper practice of filing several actions or petitions in the same ordifferent tribunals arising from the same cause and seeking substantially identical reliefs in thehope of winning in one of them.

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