Legal Ethics and Practical Exercises - I - (10%) What Are The Duties of An Attorney?
Legal Ethics and Practical Exercises - I - (10%) What Are The Duties of An Attorney?
Legal Ethics and Practical Exercises - I - (10%) What Are The Duties of An Attorney?
In the defense of a person accused of crime, by all fair and honorable means, regardless of his
personal opinion as to the guilt of the accused, to present every defense that the law permits, to the
end that no person may be deprived of life or liberty, but by due process of law.
Per the Code of Professional Responsibility:
Duties to society in general to uphold the Constitution, obey the laws of the land and promote
respect for the law and legal processes;
Duties to the legal profession to uphold the dignity and integrity of the legal profession;
Duties to the court to be candid with and promote respect for the courts and judicial officers, and
to assist the courts in rendering speedy and efficient justice; and
Duties to the client to observe candor, fairness and loyalty to the client; hold the clients money
and property in trust, serve the client with competence and diligence, always mindful of the trust and
confidence reposed by the client in him;
N.B. It should be sufficient that the answer contain either the attorneys oath, the duties of an
attorney under Section 20, Rule 138 of the Rules of Court, or the duties under the Code of
Professional Responsibility, as any of these provisions sufficiently state the statutory basis of an
attorneys duties.
- II (10%)
C engages the services of attorney D concerning various mortgage contracts entered into by
her husband from whom she is separated, fearful that her real estate properties will be
foreclosed and of impending suits for sums of money against her. Attorney D advised C to give
him her land titles covering her lots so he could sell them to enable her to pay her creditors. He
then persuaded her execute deeds of sale in his favor without any monetary or valuable
consideration, to which C agreed on condition that he would sell the lots and from the proceeds
pay her creditors. Later on, C came to know that attorney D did not sell her lots but instead
paid her creditors with his own funds and had her land titltes registered in his name. Did
attorney D violate the Code of Professional Responsibility? Explain.
The decision of the Supreme Court in the case of Hernandez v. Go, A.C. 1526, January 1, 2005, is
squarely applicable to this problem. Under the same set of facts, the Supreme Court held the lawyer
to have violated Canons 16 and 17 of the Code of Professional Responsibility, which provide as
follows:
Canon 16. A lawyer shall hold in trust all moneys and properties of his client that may come into his
possession.
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.
When attorney D acquired the properties of his client, he did not only violate these canons but also
Article 1491 of the Civil Code, which prohibits him to acquire by purchase even at a public auction
or judicial auction, property of his clients the sale of which has been entrusted to him unless the
consent of the client has been given.
- III (10%)
Attorney M. accepted a civil case for the recovery of title and possession of land in behalf of N.
Subsequently, after the Regional Trial Court had issued a decision adverse to N, the latter filed
an administrative case against attorney M for disbarment. He alleged that attorney M caused
the advese ruling against him; that attorney M did not file an opposition to the Demurrer to
Evidence filed in the case, neither did he appear at the formal hearing on the demurrer,
leading the trial court to assume that plaintiff's counsel (attorney M) appeared convinced of
the validity of the demurer filed; that attorney M did not even file a motion for reconsideration
, causing the order to become final and executory; and that even prior to the above events and
in view of attorney M's apparent loss of interest in the case, he verbally requested attorney M
to withdraw, but attorney M refused. Complainant N further alleged that attorney M abused
his client's trust and confidence and violated his oath of office in failing to defend his client's
cause to the very end.
Attorney M replied that N did not give him his full cooperation; that the voluminous records turned
over to him were in disarray, and that appeared for N, he had only half of the information and
background of the case; that he was assured by N's friends that they had approach the judge; that
they requested him (M) to prepare a motion for reconsideration which he did and gave to them;
however these friends did not return the copy of the motion.
Will the administrative case prosper? Give reasons for your answer.
Yes. Lawyer M appears negligent because of his failure to file an opposition to the demurrer, appear
at the demurrer hearing, and not filing a motion for reconsideration. Under the Code, a lawyer shall
not handle any legal matter without adequate preparation (18.02). He shall not neglect a legal matter
entrusted to him and his negligence renders him liable (18.03). Canon 18 provides that the lawyer
shall serve his client with competence and diligence. Thus, the voluminous record is no justification
for the failure of Attorney M to file an opposition to the demurrer to evidence or failing to attend the
hearing thereof.
Giving the motion for reconsideration to the friends of N for filing is another instance of negligence
on the part of Atty. M. He should have filed his motion himself. (Francisco v. Portugal, A.C. No.
6155, March 14, 2006) Atty. M also violated Canon No. 13 of the Code of Professional
Responsibility which provides that a lawyer shall rely upon the merits of his cause and refrain
from any impropriety which tends to influence or gives the appearance of influencing the court.
Furthermore, refusing to comply with Ns request to withdraw from the case violated the absolute
right of the client to terminate his lawyer at any time with or without cause. (Section 26, Rule 138 of
the Rules of Court)
- IV (10%)
When is recovery of attorney's fees based on quantum meruit allowed?
The recovery of attorneys fees on quantum meruit is allowed in the following circumstances:
Judicial Conduct)
b. What qualities should an ideal judge possess under the New Code of Judicial Conduct for
the Philippine Judiciary? (5%)
Qualities of an ideal judge under the New Code of Judicial Conduct are:
1. Independence (Canon 1);
2. Integrity (Canon 2);
3. Impartiality (Canon 3);
4. Propriety (Canon 4); and
5. Competence and Diligence (Canon 5)
- VII (10%)
a. What evidence of identity does the 2004 Rules on Notarial Practice require before a notary
public can officially affix his notarial seal on and sign a document presented by an individual
whom the notary public does not personally know? (5%)
Section 12, Rule II of the 2004 Rules on Notarial Practice defined competent evidence of identity as
referring to any of the following identification of an individual:
(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 each personally knows the individual and shows to the notary public documentary
identification.
b. When can Judges of the Municipal Trial Courts (MTC) and Municipal Circuit Trial Courts
(MCTC) perform the function of notaries public ex officio, even if the notarization of the
documents are not in connection with the exercise of their official function and duties? (5%)
MTC and MCTC judges assigned to municipalities or circuits with no lawyers or notaries public
may, in the capacity as notaries public ex-officio, perform any act within the competency of a regular
notary public, provided that: (1) all notarial fees charged be made for the account of the Government
and turned over to the municipal treasurer (Tabao v. Asis, A.M. No. RTJ-95-1330, January 30, 1996;
Lapena, Jr. v. Marcos, A.M. No. 1969-MJ, June 29, 1982); and (2) certification be made in the
notarized documents attesting to the lack of any lawyer or notary public in such municipality or
circuit. (Doughlas v. Lopez, Jr., A.M. No. MTJ-96-1076, February 9, 2000; Gravela v. Villanueva,
A.M. No. 02-1414-MTJ, January 28, 2003)
- VIII (10%)
Prepare a clause stipulating a right of first refusal to be embodied in a contract of lease, in case
of sale of the property leased.
Right of First Refusal. A right of first refusal is granted to the lessee in case lessor intends to sell the
leased property. Lessee shall be given priority to buy the property or match the offer of any potential
buyer within a period agreed upon by the parties. Should the Lessee fail or refuse to purchase the
leased property, the Lessor shall be free to sell the property at a price not lower than that offered to
the Lessee.
- IX (10%)
Prepare an affidavit of merits to be attached to a Petition for Relief.
Affidavit of merit should state:
Fraud, accident, mistake or excusable negligence preventing the filing of answer or appearing in pretrial or trial; and Valid and substantial cause of action or defense (Section 3, Rule 138 of the Rules of
Court)
REPUBLIC OF THE PHILIPPINES ) S.S.
CITY OF MANILA )
Affidavit of Merit
I, Mr. B, of legal age, single, and a resident of Quezon City, after being duly sworn to, depose and
say that:
I am the defendant in the case entitled A versus B, docketed as Civil Case No. 1234 of the
Regional Trial Court of Manila, Branch 56, for collection of a sum of money;
On July 7, 2007, while on our way to the court to attend the hearing of said case, we figured in a
vehicular accident when a truck bumped the taxi cab in which my counsel and I were riding, causing
serious physical injuries to my lawyer and myself, necessitating our hospitalization for two months;
Upon out failure to appear, the Honorable Regional Trial Court proceeded with the trial and
thereafter rendered judgment against me for the amount of P500,000 with interest from January 10,
2006, plus costs;
Said decision was served on my counsel only on September 15, 2007;
If given the chance to present evidence, I can provide as a valid and substantial defense that the
amount being collected from me by the plaintiff has been fully paid as shown by a receipt, a machine
copy of which is attached hereto as Annex 1 of this Affidavit; and
I have executed this Affidavit in support of my Petition for Relief from final judgment of the RTC of
Manila.
FURTHER, Affiant sayeth naught.
Manila, September 19, 2007.
(Sgd.) B
Affiant
SUBSCRIBE AND SWORN to before me, this 21st day of September 2007, the affiant personally
appeared and exhibited to me his Passport No. 345678 issues in Manila on January 12, 2007.
WITNESS MY HAND AND SEAL.
CD
NOTARY PUBLIC
Until December 31, 2007
Commission No.
(Address)
Attorneys Roll No.________
IBP Membership No._______
PTR O.R. No. ______Manila,
01/0/07
Doc. No.____
Page No. ___
Book No.____
Series of 2007
-X(10%)
Prepare an arbitration clause to be included in a contract.
Any dispute between parties arising from contract should first be referred to an arbitration panel of
three members before resorting to court action, one member each to be designated by the parties and
third member chosen by the two. Any decision of the Arbitration Committee shall be final,
enforceable and binding on the parties.
NOTHING FOLLOWS.