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LEGAL ETHICS

MOCK BAR EXAM

Question No. 1: Mrs. Amy Dizons husband was killed in a traffic accident. She wants to sue the bus
company for damages but she cannot afford a lawyer. She approached Atty. Larry Rio who agreed to
handle the case without any retainers fee or expenses on her part, on the condition that in case of
recovery of damages, he shall get 33% of the award by the court. Is this arrangement valid and
permissible? Decide with reasons.

Answer:

In the recent case of Angel L. Bautista vs. Atty. Ramon A. Gonzales, Adm. Matter No. 1625, February 12,
1990, the Supreme Court held that the lawyer shall defray all the expenses of the suit, it is contrary to
Canon 42 of the Canons of Professional Ethics which provides that a lawyer may not properly agree with
a client to pay or bear the expenses of litigations (See also Tule 16.04, Code of Professional
Responsibility). The Court added that although a lawyer may in good faith, advance the expenses of
litigation, the same should be subject to reimbursement. And, an agreement whereby an attorney
agrees to pay expenses of proceedings to enforce the clients rights is champertous and against public
policy especially where, as in this case, the attorney has agreed to carry on the action at his own
expenses in consideration of some bargain to have part of the thing in dispute. The arrangement
between Amy Dizon and Atty. Larry Rio, which provides that the latter will handle the case without any
retainers fee or expenses on her part, can be taken to mean that the lawyer will carry out the case at
his own expenses without reimbursement. On the basis of the foregoing decision of the Supreme Court,
such an arrangement is invalid. However, the contingent fee contract is not prohibited by the law and is
impliedly sanctioned. A contingent fee is however closely supervised by the court to safeguard the client
from unjust charges, and its validity depends, in large measure, upon the reasonableness of the amount
fixed under the circumstances of the case. A contingent fee of 33% of the amount of recovery may be
reasonable if the bus company fights the case until the Supreme Court and the litigations are hard-
fought and long drawn: it may be unreasonable if the bus company agrees to compromise. But the fact
that a contingent fee is unreasonable does not preclude the lawyer from being paid his fees on quantum
merit basis.

Question No. 2: Your services as a lawyer are engaged by John Dizon to defend him from the charges of
malversation of public funds before the Sandigan Bayan. John confessed to you that he actually
misappropriated the amount charged but she said it was out of extreme necessity to pay for the
emergency operation of his wife. Will you agree to defend him? State your reason.

Answer: I will agree to defend him, notwithstanding his confession to me that he actually
misappropriated the amount. Rule 14.01 of the Code of Professional Responsibility provides that a
lawyer shall not decline to represent a person because of his own opinion regarding the guilt of the
person. One of the duties of an attorney is that he should, in the defence of a person accused of a crime,
by all fair and honourable means regardless of his personal opinion as to guilt of the accused, present
every defence that the law permits, to the end that no person may be deprived of life liberty but by due
process of law. The burden of proof lies with the prosecution and if the prosecution fails to discharge
such burden, the lawyers can always invoke the presumption of innocence for the acquittal of his client.
If the prosecution proves the guilt of the accused beyond reasonable doubt, the lawyer can strive to
lower the penalty by presenting mitigating circumstances, for he is not necessarily expected to sustain
the clients innocence. A lawyer is an advocate, not a judge, and if he has rendered effective legal
assistance to his client as allowed by law, he can rightfully say that he has faithfully discharged his duties
as a lawyer, even if the accused is found guilty by the court.

Question No. 3: Atty. Japzon, a former partner of XXX law firm, is representing Kapuso Corporation in a
civil case against Kapamilya Corporation whose legal counsel is XXX law firm. Atty. Japzon claims that
she never handled the case of Kapamilya Corporation when she was still with XXX law firm. Is there a
conflict of interest?

Answer: There is a conflict of interest when a lawyer represents inconsistent interests. This rule covers
not only cases in which confidential communications have been confided, but also those in which no
confidence has been bestowed or will be used. Also, there is no conflict of interest if the new retainer
will require the attorney to perform an act which will injuriously affect his first client in any matter in
which he represents him and also where he will be called upon in his new relation to use against his first
client any knowledge acquired through their connection (Santos vs Beltran 418 SCRA 17) Since Atty.
Japzon was a partner of XXX law firm which has Kapamilya Corporation as its client, she cannot handle
against it as such will involve conflict of interest. The employment of law firm is equivalent to the
retainers of the members thereof. It does not matter if Atty. Japzon never handled a case of kapamilya
Corporation when she was still with the XXX law firm.

Question 4: Atty. Yabang was suspended as a member of the Bar for the period of one year. During the
period of suspension, he was permitted by his law firm to continue working in their office, drafting and
preparing pleadings and other legal documents, but was not allowed to direct contact with firms clients.
Atty. Yabang was subsequently sued for illegal practice of law. Would the case prosper?`

Answer: The Supreme Court defined the practice of law as any activity in or out of court, which requires
the application of law, legal principle, practice or procedure and calls for legal knowledge training and
experience ( Cayetano vs Monsod 201 SCRA 210). Based on this Definition, the acts of Atty. Yabang of
preparing pleadings and other legal documents, would constitute practice of law; If so his activities are
for the benefit of his law firm, because the employment of all the members thereof. The case against
him will prosper.

Question 5: A. Judge Segotier is a member of Phi Nu Phi Fraternity. Atty. Nonato filed a motion to
disqualify Judge Segotier on the ground that the counsel for the opposing party is also a member of the
Judges fraternity. Judge Segotier denied the motion. Comment on his ruling? B. In an intestate
proceeding, a petition for the issuance of letters of administration in favor of a Regional Trial Court
Judge was filed by one of the heirs. Another heir opposed the petition on the ground that the Judge is
disqualified to become an administrator of the estate as he is the brother-inlaw of the deceased. Rule on
the Petition.
Answer: A. The ruling of the Judge Segotier is correct. The fact that a judge is a former classmate of one
of his counsel to the case has been held insufficient ground for the disqualification of the Judge( V.da de
Bonifacio vs B.L.T. Bus Co. 34 SCRA 618). Intimacy or friendship between a judge and an attorney of
record has also been held to be insufficient ground for the formers disqualification. B. I will deny the
petition for issuance of letters of administration in favor of the Regional Trial Court Judge( Rule 5.06 of
the Code of Judicial Conduct) provides that a judge should not serve as the executor, administrator,
trustee, guardian or other fiduciary, except for the estate, trust, or person of a member of the
immediate family, and then only if such interference with the proper performance of his judicial duties.
The exception is not applicable

Question No. 6: A verified complaint for disbarment was filed against Atty. Cruz who was accused of
misappropriating funds belonging to the complainant. The matter was referred to the IBP which
forthwith conducted an investigation through its local chapter. During the pendency of the investigation,
the complainant filed an Affidavit of Desistance claiming that Atty. Cruz has already reimbursed him for
the funds which he had accused him of unlawfully spending for his own use. Atty. Cruz moved for the
dismissal of the complaint. As the hearing officer, how will you react to the motion of Atty. Cruz?

Answer: The desistance of a complaint in a disbarment proceedings or his withdrawal of the charges
against a lawyer does not deprive the court of the authority to proceed and determine the matter. Nor
does it necessary result in the dismissal of the complaint, except when, as a consequence of withdrawal
or desistance, no evidence is adduced to prove the charges, Since a disbarment proceeding is neither a
civil or criminal action but one presented solely for public interest; the fact that the complainant and the
respondent have considered the case close, is unimportant.

Question No. 7: Atty. Herminio de Pano is a former Prosecutor of the City of Manila who established his
own law office after taking advantage of the Early Retirement Law. He was approached by Estrella
Cabigao to act as private prosecutor in an estafa case in which she is the complainant. It appears that
the said estafa case was investigated by Atty. De Pano when he was still a Prosecutor. Should Atty. Pano
accept employment as private prosecutor is said estafa case? Explain.

Answer: Atty. De Pano should not accept the employment as private prosecutor as he will be violating
Canon 6, Rule 6.03 of the Code of Professional Responsibility which provides that a lawyer shall not,
after leaving government service, accept employment in connection with any matter in which he had
intervened while in said service. The restriction against a public official from using his public position as
a vehicle to promote or advance his private interests extends beyond his tenure on certain matters
which intervened as a public official.

Question No. 8 A judge, in order to ease his clogged docket, would exert efforts to compel the accused
in criminal cases to plead guilty to a lesser offense and advise party litigants in civil cases, whose
positions appear weak, to accept the compromise offered by the opposing party. Is the practice legally
acceptable? (5%)

Answer: The practice is legally acceptable as long as the judge does not pressure on the parties and
takes care that he does not appear to have prejudged the case. Where a judge has told a party that his
case is weak before the latter was fully heard, such was considered ground for his disqualification
(Castillo v. Juan 62 SCRA 124).

Question No. 9: Ben filed proceedings for disbarment against his lawyer, Atty. Co, following the latters
conviction for estafa for misappropriating funds belonging to his client (Ben). While the proceedings for
disbarment was pending, the President granted absolute pardon in favour of Atty. Co, then moved for
the dismissal of the disbarment case. Should the motion be granted? (5%). Answer: An absolute pardon
by the President is one that operates to wipe out the conviction as was as the offense itself. The grant
thereof to a lawyer is a bar to a proceeding for disbarment against him, if such proceeding is based
solely on the fact of such conviction ( In re Parcasion, 69 SCRA 336). But where the proceeding to disbar
is founded on the professional misconduct involved in the transaction which culminated in his
conviction, the effect of the pardon is only to relieve him of the penal consequences of his act and does
not operate as a bar to the disbarment proceeding, inasmuch as the criminal acts may nevertheless
constitute proof that the attorney does not possess good moral character (In re Lontoc, 43 Phil.293).

Question No. 10: X was indicated for murder. As he had no counsel on arraignment, the trial court
appointed Atty. A. His counsel de officio. When Atty. A asked X what was his stand, X said he was guilty.
X thereupon pleaded guilty. X thereupon pleaded guilty. Trial was thereafter conducted. When the turn
of the defence to present evidence came, Atty. A manifested that he was not presenting and that he
was submitting the case for decision, praying that Xs plea be considered mitigating. Did Atty. As
assistance or conduct approximate the competence and diligence which the Code of Professional
Responsibility expected of him? Explain. (5%).

Answer: No. It is the duty of defence counsel when his client desires to enter a plea of guilty to fully
acquaint himself with the facts and surrounding circumstances of the case, advise his client of his
constitutional rights and the full import of a plea guilty, see to it that the precise degree of his clients
culpability is established and the appropriate penalty is imposed, and thus leave no room for doubt that
there was a mistake or misunderstanding as to the nature of the charges to which his client had pleaded
guilty. Atty. A has fallen short of his required conduct.

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