2010 BAR REVIEW PREDICTIONS

in

Legal Ethics and Practical Exercises

by:

Prof. Arturo M. de Castro

(Pre-Bar Reviewer, Global Best Practice, UP Law

Center, PCU; Professor of Law, Ateneo, UP)

1. A & B, both lawyers, enter into a partnership with C, under the firm name
A B & C and Associates, to render legal and accountancy services.

Is the partnership permitted under the Canons of Professional Ethics?

Ans: No. Under Canon No. 33 of Professional Ethics, “Partnerships

between lawyers and members of other professions or non-
professional persons should not be formed or permitted where any
part of the partnership’s employment consists of the practice of
law.”

2. Is the partnership of A & B, both lawyers with B, an Ll.B. graduate but

under Bar permissible?

Ans: No. Canon No. 33 provides that: “In the formation of partnerships
for the practice of law, no person should be admitted or held out as
a practitioner or member who is not a member of the legal
profession duly authorized to practice, amenable to professional
discipline.”

3. Is the continued use of the name of a deceased partner ethical?

Ans: Yes, provided that no imposition or deception is practiced thru their

use. (Canon 33)

4. May the name of a partner appointed to Government service and

precluded from the practice of law be continued in the firm name?

Ans: No. His name should be removed in the firm name to avoid
imposition and deception and unfair advantage from the use of the
name. (Canon 33)

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 

1. May a lawyer legally apply a client’s fund in his possession to satisfy the
professional fees the client owes him?

Ans: Yes, in the absence of any legal dispute as to the legality of the
amount of the fees, and the funds do not belong to third party.

A lawyer may legally apply a client’s funds in his possession to

satisfy professional fees which the client owes him, in the absence
of any dispute as to the legality of the amount thereof. However, the
fact that a lawyer has a lien for his fees on the client’s money in his
possession or the circumstance that the client owes him more than
the client’s funds in his hands may not excuse him from making an
accounting nor entitle him to unilaterally apply the client’s money to
satisfy his disputed claims. In this case, the amount pf P30,000
which the respondents took for themselves as attorney’s fees
belonged to a third person, not their client, as admitted by them in
their complaint; the owner was, in fact, an adverse party
(Malecdan vs. Atty. Pekas and Atty. Kollin, Jan. 26, 2004)

In the course of his professional relationship with his client, a

lawyer may receive money or property for or from the client. He
shall hold such property in trust, and he is under obligation to make
an accounting thereof as required by Rule 16.01 of the Code of
Professional Responsibility. This obligation to hold property in trust
includes money received by a lawyer as a result of a judgment
favorable to his client. In the present case, Atty. Layag did not
make an accounting of the judgment awards he received and the
checks he allegedly turned over to Marie Paz Gonzales. Further,
when complainants demanded that he deliver to them the checks
pertaining to de Guzman Buado and Lising for the judgment in Civil
Case No. C-14265, Atty. Layad did not do so, in violation of Rule
16.03.

The inescapable conclusion we can make, given the circumstances

in this case, is that by his actions, respondent failed to observe the
utmost good faith, loyalty, candor and fidelity required of an
attorney in his dealings with his clients. His acts of misappropriation
the money of his clients are grossly immoral and unprofessional.
There is no doubt in our mind that he deserves severe punishment
(Indefinitely suspended) (de Guzman Buado and Lising vs. Atty.
Layag, August 12, 2004)

2. When may a lawyer sue the client for non-payment of legal fees?

Ans: Only to prevent imposition, in justice or fraud.

The Supreme Court held that the conduct of filing criminal case for
violation of BP No. 22 against the client for the dishonor of the
check for the balance of his fees is highly improper. The lawyer
should have been more tolerant. Lawsuits with the clients should be
resorted to only to prevent injustice, imposition or fraud (Cueto vs.
Jimenez, Jan 20, 2005).

3. What are the factors for fixing reasonable attorney’s fees?

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 Ans: In fixing the reasonable value of attorney’s services or in
determining whether what has been stipulated as counsel fees is
unconscionable or not, the court will take into consideration a
number of factors, among which are (a) the quantity and character
of the services rendered; (b) the labor, time and trouble involved;
(c) the nature and importance of the litigation or business in which
the services were rendered; (d) the responsibility imposed; (e) the
amount of money or the value of the property affected by the
controversy; (f) the skill and experience called for in the
performance of the service; (g) the professional character and
social standing of the lawyer; (h) the novelty and difficulty of
questions involved; (i) the customary charges of the bar for similar
services; (j) the character of employment, whether casual or for
established client; (k) the results secured; and (l) whether or not the
fee is contingent, it being recognized rule that an attorney may
properly charge a higher fee when it is contingent than when it is
absolute. (Agpalo, Ibid, p. 321)

4. Does the adverse result of the litigation by itself deprive the lawyer of the
right to claim reasonable attorney’s fees?

Ans: The adverse result of the litigation does not in itself deprive a
lawyer of the right to claim a reasonable compensation for his
services unless such result is due to the lawyer’s misconduct or the
fee stipulated is contingent upon the favorable outcome of the
action. Thus, the dismissal of the client’s case for failure of his
counsel to appear at the hearing precludes recovery of attorney’s
fees even though such failure is due to excusable negligence
because the fact remains that the client lost the litigation due to the
lawyer’s omission. But a mere honest mistake in the discharge of
his duties does not defeat his right to fees. For instance, the
circumstance that the document prepared by a lawyer was
subsequently declared void by the court does not justify
disallowance of his fees for drafting it, unless there is a showing
that he has prior knowledge of the act which gave rise to its nullity.
(Agpalo, Ibid, p. 304)

5. May a lawyer charge exhorbitant legal fees?

Ans: No. Accepting unreasonable or exhorbitant consulting fees violates

Canon 20 that “A lawyer shall charge only fair and reasonable
fees”. There is, however, no hard and fast rule which will serve as
guide in determining what is or what is not a reasonable fee. That
must be determined from the facts of each case. The power to
determine the reasonableness or the unconscionable character of a
lawyer’s fee is a matter falling within the regulatory prerogative of
the Court. (Dalisay vs. Atty. Mauricio, April 22, 2005)



1. What is the sanction for a lawyer who made a mockery of marriage by

obtaining an illegal divorce abroad, marrying another woman abroad to
avoid being charged of bigamy and cohabiting with the latter in the
Philippines while his civil case for declaration of nullity under Art. 36 for
psychological incapacity of the first wife is still pending in the Philippines?

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 Ans: Disbarment. Misconduct which demonstrates lack of good moral
character is a condition precedent for admission and continued
membership in the Bar, whether the misconduct is committed
professionally or in private life. A lawyer who, being lawfully
married, carried an illicit love affair with another woman is disbarred
(In RE: Alejandrino, Feb. 13, 2004; Macarrubo, Feb. 27, 2004).

Evidently, respondent had breached the high and exacting moral

standards set for members of the law profession. He has made a
mockery of marriage which is a sacred institution demanding
respect and dignity. (Disbarred) (Dantes vs. Atty. Dantes,
September 22, 2004)

2. A lawyer issues checks from Closed Account. What breach of professional

ethics is commited and what is the imposable sanction?

Ans: Issuing worthless checks from a closed account constitutes gross

misconduct as will as moral that merits the supreme penalty of
Disbarment (Maria Elena Moreno vs. Atty. Ernesto Araneta, April
27, 2005)

3. What is the duty of a lawyer after accepting a case and receiving money
from the client?

Ans: Acceptance of money from a client establishes an attorney-client

relationship and gives rise to the duty of fidelity to the client’s
cause. Every case accepted by a lawyer deserves full attention,
diligence, skill and competence, regardless of importance.

The act of receiving money as acceptance fee for legal services in

handling complainant’s case and subsequently failing to render
such services is a clear violation of Canon 18 of the Code of
Professional Responsibility which provides that a lawyer shall serve
his client with competence and diligence. (Reyes vs. Atty. Vitan,
April 15, 2005)

4. When may a lawyer represent conflicting interest?

Ans: By written consent of all concerned given after a full disclosure of

the facts (Rule 15:03, Canon 15, Code of Professional
Responsibility).

5. May a lawyer represent the adversary of his former client in a civil case
which has been terminated in criminal case against his former client?

Ans: nonetheless, be that as it may, it cannot be denied that when

respondent was the counsel of complainant in Civil Case No. 1648,
he became privy to the documents and information that
complainant possessed with respect to the said parcel of land.
Hence, whatever may be said as to whether or not respondent
utilized against complainant any information given to him in a
professional capacity, the mere fact of their previous relationship
should have precluded him from appearing as counsel for the
opposing side.

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 Thus, respondent should have declined employment in Criminal
Case No. 3159 so as to avoid suspicion that he used in the criminal
action any information he may have acquired in Civil Case No.
1648.

Moreover, nothing on record would show that respondent fully

apprised complainant and his new clients and secured or at least
tried to secure their consent when he took the defense of the
accused in Criminal Case No. 3159.

Respondent also asserts that when he accepted employment in

Criminal Case No. 3159, the attorney-client relations between him
and complainant in Civil Case No. 1648 had already been
terminated. This defense does not hold water because the
termination of the relation of attorney and client provides no
justification for a lawyer to represent an interest adverse to or in
conflict with that of the former client. (Fined P10,000) (Pormento,
Sr. vs. Atty. Pontevedra, March 31, 2005)

6. Is violation of forum shopping a breach of professional ethics?

Ans: In filing multiple petitions before various courts concerning the

same subject matter, the respondent violated Canon 12 of the Code of
Professional Responsibility, which provides that a lawyer shall exert every
effort and consider it his duty to assist in the speedy and efficient
administration of justice. He also violated Rule 12.02 and Rule 12.04 of
the Code, as well as a lawyer’s mandate “to delay no man for money or
malice.” (Suspended for 2 years) (Foronda vs. Atty. Guerrero, August
10, 2004)

7. What is the duty of lawyer who withdraws or is terminated from handling

the case?

Ans: Immediately turn over the papers and property entrusted to him,
subject to retaining lien (Rule 22.02, Code of Professional
Responsibility; Jayne Y Yu vs. Renato Bondal, Jun 17, 2005)

V

1. May a lawyer finance a litigation?

Ans: No, that is a contract of champerty or agreement to carry the suit at

his expense, which is contrary to public policy.

2. May a lawyer be a witness for his client?

Ans: Except in formal matter, such as attestation or custody of the

instrument, he must leave the trial of the case to other counsel. He
should avoid testifying in court on behalf of his client, except when
essential to the ends of justice.

1. What are the duties of a lawyer to a) society and the profession? b) the
Courts? c) to the clients?

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 Ans: See pp. 293, et seq., 2nd (blue) Study Guide

V

1. What are the factors taken into account in the reinstatement of a

suspended or disbarred attorney?

Ans: The following:

1. Moral reformation

2. Mental qualifications

The Court may require an applicant for reinstatement to enroll in

and pass review classes in a recognized school as a condition
to re-admission.

3. The applicant’s character before his disbarment, the nature of

the misconduct, his conduct subsequent to disbarment, the time
elapsed from disbarment to application for reinstatement, and
the applicant’s appreciation of his dereliction and his assurance
that he now pressures the requisite probity and integrity to
guarantee if he is worthy to be reinstated to the practice of law.
The Court has to be convinced that the rehabilitation of his
character is real and true.

The Court, in reinstating a lawyer, may impose certain

conditions on his re-admission. It may, for example, require that
the lawyer recognize and support his child with the complaining
woman who was responsible for his disbarment on ground of
gross immorality. (Agpalo, Ibid, pp. 434-435)

V

1. What is the duty of the Judge aside from being neutral and impartial?

Ans: To be free from any suspicion as to his fairness, impartiality and

integrity. Like, Caesar’s wife, a just must not only be pure but
beyond suspicion (Palang vs. Zosa, 58 SCRA 776 [1974])

2. What are the grounds for disqualification and/or voluntary inhibition of a

Judge?

Ans: No judge or judicial officer shall sit in every 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 the sixth
degree of consanguinity or affinity, or to counsel within the fourth
degree, computed according to the rules of the 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
(Rule 137, Sec. 1, Rules of Court). 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

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 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 (Rule 137, Sec. 1, Rules of
Court) (Agpalo, Ibid, p. 443)

V

1. A, a married RTC Judge, sires 2 children with a mistress. a) May he be

removed from the service? b) What is the imposable penalty?

Ans:
a) Yes, on the ground of immorality.

b) dismissal from the service with forfeiture of retirement benefits

and disqualification from being appointed to public office.

2. May he be disbarred in the same proceeding for his removal as a Judge?

Ans: Yes, under a Supreme Court Circular, issued sometime in

September, 2002, the proceedings for the removal of a Judge or
other government official who is a lawyer may include his
disbarment.

X
1. Draw a Complaint for Unlawful Detainer.

2. Donation Mortis Causa. Must conform to the formal requisites of a will.

3. Contract – with acknowledgment (Before me personally appeared)

4. Affidavit jurat (Subscribed and Sworn to)

5. Complaint-Affidavit of Counter-Affidavit must have the Certification of the

Fiscal that he has examined the affiant and that he is satisfied that the
affiant voluntarily executed the same.

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