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IV.

Dilemma 5: Last Will and Testament and Successional Rights On April 2005, four years after the plane crash, probate proceedings for Manuels will were initiated. In the will, Manuel left P100, 000 to Cora, and the rest of all his properties to Wendy and Ben equally (see Appendix H, Will of Manuel Soriano). Louis, entrusted with the will, knew that if the will was to be followed, it would be unfair to Wendy, since Ben was really Manuels illegitimate child. Louis advises Wendy to contest the will. He adds, however that if she contests the will, she has to tell the whole world that Ben is not her biological child. Wendy does not want to give Ben up to his biological mother, since she (Wendy) has learned to love him. However, she is adamant about not giving Cora the P500, 000. For Class Discussion Faculty Guide a. Should Wendy contest the will? I. See Appendix H, Will of Manuel Soriano II. Consider the following: i. Civil Code, Article 892, 894, 897 Art. 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one-fourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same. If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants. In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator. Art. 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of the hereditary estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of the testator. Art. 897. When the widow or widower survives with legitimate children or descendants, and acknowledged natural children, or natural children by legal fiction, such surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children which must be taken from that part of the estate which the testator can freely dispose of. b. Louie reminds Wendy that in all their years of friendship, she and Manuel have gone to him for their legal problems but not once did he charge them a fee. Due to the time involved in litigating this case (as to not giving Cora the P500, 000), he accepts the case but demands

from Wendy payment of P150, 000, his standard fee. Wendy refuses. Can Louis withdraw from the case? I. Consider the following: a. Code of Professional Responsibility, Canons 22, 22.01, 20.04, 14.04 CANON 22 - A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE CIRCUMSTANCES. Rule 22.01 - A lawyer may withdraw his services in any of the following case: (a) When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling; (b) When the client insists that the lawyer pursue conduct violative of these canons and rules; (c) When his inability to work with co-counsel will not promote the best interest of the client; (d) When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively; (e) When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement; (f) When the lawyer is elected or appointed to public office; and (g) Other similar cases. Rule 20.04 - A lawyer shall avoid controversies with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice or fraud. Rule 14.04 - A lawyer who accepts the cause of a person unable to pay his professional fees shall observe the same standard of conduct governing his relations with paying clients. b. Santiago vs. Fojas, 248 SCRA 68 "It is axiomatic that no lawyer is obliged to act either as adviser or advocate for every person who may wish to become his client. he has the right to decline employment, subject, however, to Canon14 of the CPR. Once he agrees to take up the cause of a client, the lawyer owes fidelity to such cause and must always be mindful of the trust and confidence repose in him. he must serve his client with competence and diligence, and champion the latter's cause with wholehearted fidelity, care, and devotion...." c. If instead, Louie agrees to take the case upon Wendys promise to give him the entire P500,000 meant for Cora, should he win the case but only P25,000 should he lose, would this be correctly characterized as a contingent fee?

I. Consider the following: i. Taganas vs. NLRC, GR 118746, 9/7/95 A contingent fee arrangement is an agreement laid down in an express contract between a lawyer and a client in which the lawyer's professional fee, usually a fixed percentage of what may be recovered in the action is made to depend upon the success of the litigation. This arrangement is valid in this jurisdiction. d. Distinguish between a champertous contract and a contingent fee. I. The case of Bautista vs Gonzales (182 SCRA 151) describes a champertous agreement as one whereby an attorney agrees to pay expenses of proceedings to enforce the clients rights. In champertous contracts, the lawyer is the one paying for all the costs and fees of the case, without reimbursement from the client. II. On the other hand, a contingent fee is defined in the case of Taganas vs NLRC as an agreement laid down in an express contract between a lawyer and a client in which the lawyer's professional fee, usually a fixed percentage of what may be recovered in the action is made to depend upon the success of the litigation. Thus, in contingent fees, the lawyer gets paid the agreed amount if the case is successful, otherwise, he does not get paid, or gets paid a lower agreed amount. This does not mean though that the lawyer necessarily pays the costs and fees of the suit. The clients may still be paying for the costs of the suit, but the lawyer gets paid his agreed fee if they win. e. What are the criteria in considering the reasonableness of Attorneys fees? I. Consider the following: i. Code of Professional Responsibility, Canon 20.01 Rule 20.01 - A lawyer shall be guided by the following factors in determining his fees: (a) the time spent and the extent of the service rendered or required; (b) the novelty and difficulty of the questions involved; (c) The importance of the subject matter; (d) The skill demanded; (e) The probability of losing other employment as a result of acceptance of the proffered case; (f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs; (g) The amount involved in the controversy and the benefits resulting to the client from the service;

(h) The contingency or certainty of compensation; (i) The character of the employment, whether established; and (j) The professional standing of the lawyer. ii. Rules of Court, Rule 138, Section 24

occasional

or

Sec. 24. Compensation of attorneys; agreement as to fees. - An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services, with a view to the importance of the subject matter of the controversy, the extent of the services rendered, and the professional standing of the attorney. No court shall be bound by the opinion of attorneys as expert witnesses as to the proper compensation, but may disregard such testimony and base its conclusion on its own professional knowledge. A written contract for services shall control the amount to be paid therefor unless found by the court to be unconscionable or unreasonable. iii. Del Rosario vs. CA, 237 SCRA 39 In determining the reasonableness of such [attorneys] fees, this Court in a number of cases has provided various criteria which, for convenient guidance, we might collate thusly: a) the quantity and character of the services rendered; b) the labor, time and trouble involved; c) the nature and importance of the litigation; d) the amount of money or the value of the property affected by the controversy; e) the novelty and difficulty of questions involved; f) the responsibility imposed on counsel; g) the skill and experience called for in the performance of the service; h) the professional character and social standing of the lawyer; i) the customary charges of the bar for similar services; j) the character of employment, whether casual or for establishment client; k) whether the fee is absolute or contingent (it being the rule that an attorney may properly charge a higher fee when it is contingent than when it is absolute); and l) the results secured.

f. Presume that Louis does not take the case and Wendy seeks the services of a media-savvy female lawyer, Atty. Evie Escaler. She believes that there is little chance that the case will prosper considering that Wendy wanted the bequest to Cora to be voided on moral grounds but did not want any proof to be presented that could identify Cora as Bens biological mother. Nevertheless, she keeps these thoughts to herself and accepts the case considering that it presented a real challenge and was a good test case in addition to having the makings of a high profile case of show-biz proportions. Discuss the legal and moral issues involved. I. Consider the following: i. Code of Professional Responsibility, Canons 15, 15.05, 15.07, 17 CANON 15 - A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS. Rule 15.05. - A lawyer when advising his client, shall give a candid and honest opinion on the merits and probable results of the client's case, neither overstating nor understating the prospects of the case. Rule 15.07. - A lawyer shall impress upon his client compliance with the laws and the principles of fairness. CANON 17 - A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.