Response to Kat: Pointers for the Bar Exam

I noticed that my blog had been silent for more than 3 months now. I have been busy back to work since December 2017, and had been (re)answering the 2017 Bar Exam since then. Two months before the release of the bar exam results, I was “interviewed” by my law school classmate who is now a candidate for graduation this June 2018. Having passed by our chat, I decided to post our Q&A. May the reader find this post as source of useful pointers in taking the #Bar2018 [Note: The Q&A is edited/modified to fit this blog-type post.]

 

KAT: First of all, congrats in finishing the bar. That alone takes a huge amount of endurance, and for that, I congratulate you! :’)

ME: Thank you!

KAT: Second, habang fresh pa sayo ang mga bagay-bagay, nais kong humingi ng mga words of advice or tips like:

Ano ang mga bagay na na-realize mo na dapat mong ginawa pero hindi mo nagawa?

ME: Most of the things I planned were accomplished naman, except for that run on the syllabus. Original plan ko kasi ay gagawan ko ng reviewer each and every subject based on syllabus. But since August 2017 na ako nag-start ng review proper ko (take not I did not resign or totally left work), I realized na I will be losing material time just doing such reviewer than focusing on what statistically may come out. So I abandoned the plan, and instead read as many Arellano Bar Review Program (ABRP) materials I’ve collected since 2012 as a premium for being consistently and actively participating in the Bar Operations.

I realized na, if only I have completed that self-made reviewer, maybe I could have better answered some questions. But take note abandoning it is not a bad idea after all. I just feel I could have answered better.

KAT: Mistakes you did or ung mga pagkukulang, if any? Or
Yung mga tamang ginawa mo na tingin mo hindi nagawa ng iba, if any? Hehe

I am not sure if it’s a mistake when I slightly changed my answering style a few months before the bar exam. Napansin ko kasi, if I will maintain my style, parang pare-parehas na mababasa ng examiner na phrasing (like kung susundan mo yung answering style na 3-paragraph rule). I have to admit I am aiming for the top. Without any professional guidance, I tried to trim down my answer into 2-paragraph super direct to the point “answer-reason then basis” approach. Maybe some portions of the correct answer could have been lost somewhere. But nonetheless, I passed. So baka naman hindi mistake.   

I believe I did my best in answering all the questions. That should be every examinee’s objective. Never leave a question unanswered, and always have a spare time to review your work. In my case, I made sure that I am done answering before the 3^rd bell (i.e. 30 minutes before time’s up) so I still have at least 25 minutes (I submit my booklet after the 4^th bell, i.e. 5 minutes before time’s up with the exception of Legal Ethics where I submitted 45 minutes before time kasi I am excited to go out before the sun sets). That way, I can review my work for any spelling, grammar, or punctuation. To my surprise, I was able to discover (this was during the first Sunday) that I skipped answering some sub-questions. I was able naman to insert my answers because, fortunately, my answers were (extremely) short and I use 1 page in answering even sub-questions.

KAT: Third, sa dami ng binasa mo, ano sa tingin mo ung best material/s (pnka marami kang nahugot sa pagsagot sa bar) and worst (na dapat ndi na basahin ng isang barrista) for each bar subject?

ME: Honestly, I have not read any reference book in the entire review (I tried to borrow some books, but I never had the chance to read it). In our case (Bar 2017), there is no single best material that you can use to survive the exam.  You really have to rely on the years of preparation you have in law school. In my case, I relied mostly on ABRP materials including our very own Pre-Week materials. My observation is that all other review materials are practically the same. They just differ in the presentation and emphasis on certain topics. But they are just like any other review material.

Take note I did not enroll in any other Bar Review simultaneous with the ABRP. To me, simultaneous schooling is not good at all because you will hear different approaches and answers to the same question, which later on may affect you while answering the bar exam. Just choose one set of materials that you are comfortable with. Stick with it, and just be able to identify which part is “poisonous” LoL. 

KAT: Best material (to read) and worst material (to avoid)
Poli-
Labor-
Civil law-
Tax-
Com-
Crim-
Remedial law-
Ethics-

ME: Following my answer above, I do not recommend any best or worst material for any subject. Given enough value and appreciation, our very own ABRP materials are good enough. You will later discover that some of Arellano barristers are reading “Blue Notes”, “Red Notes”, UP Notes, etc. But you will also be amazed to see some Ateneo, San Beda, and UP barristers reading Arellano Last Minute Tips (LMTs) LoL. Just choose which materials are most comfortable for you to use.

Bar materials and LMTs by itself will not, by itself, save you. They are just intended as reminders to what you should have known already way back law school days.

However, there are some notable exceptions to this like in the case of Political Law and Civil Law. AUSL is known to have very good predictions on Political Law (average 50%) and it was maintained.

Labor Law is likewise fair enough. Using Atty. Chan’s pre-week notes is more than enough arsenal.

In the case of Civil Law, there are a lot of basic ObliCon questions and our very own Atty. Rabuya discussed many of the questions which were lifted from the J.Bersamin cases.

Taxation law is again a killer (to me). I cannot give advice on this. But if you have read enough recent tax cases, it will be less painful.

Commercial law is also a pain in the a**. A handful of questions were lifted from the Financial Rehabilitation and Insolvency Act (FRIA). But the questions were basic, so I suggest reading the law (note, it is lengthy) and at least understanding the terms, just in case a “boomerang” happens in your bar exam.

Criminal Law is also complained as a killer subject, but I disagree. The questions are basic. The problem is its presentation. You will get confused by the manner the questions are presented. But I believe the questions are phrased that way to see if the examinee can discern the issue and use only material facts to arrive at a conclusion applying the law. The exceptional term “doli incapax” can be answered if you are familiar with latin root words “dolus” (dolo).  But never mind.

Remedial law is just a walk in the park (Jurassic park LoL) if you have been under Atty. Brondial’s class. If you have not, I suggest you get a copy of Atty. Brondial’s latest syllabus and start reading the cases there. It will be a smooth ride after finishing it.

Legal Ethics questions were mostly recycled questions in the past bar exams. Be prepared on legal forms because it may drain your time in preparing one if you have not practiced doing it. 

 

KAT: Your response will be much appreciated hehe.. thank you!

P.S. sa free time mo po gawin. I am willing to wait.

ME: I don’t want you to wait. Start early and feel relieved early. I hope, though, that I have not increased your stress levels by promptly replying to your queries.

Good luck!

 

Re: Non-disclosure Before the Judicial and Bar Council of the Administrative Case Filed Against Judge Jaime V. Quitain, in His Capacity as the then Asst. Regional Director of the National Police Commission, Regional Office XI, Davao City. JBC No. 013, 22 August 2007

En Banc

[PER CURIAM]

FACTS: Judge Jaime Vega Quitain was appointed Presiding Judge of the Regional Trial Court (RTC), Branch 10, Davao City. Subsequent thereto, the Office of the Court Administrator (OCA) received confidential information that administrative and criminal charges were filed against Judge Quitain in his capacity as then Assistant Regional Director, National Police Commission (NAPOLCOM), Regional Office 11, Davao City, as a result of which he was dismissed from the service. This fact did not appear in his Personal Data Sheet (PDS) submitted with his application as judge. Quitain explained that he was not aware of his administrative dismissal in NAPOLCOM. However, there were newspaper articles that even featured his ouster and his subsequent appeal to clear his name. Thus, the OCA recommended that: (1) the instant administrative case against respondent be docketed as an administrative matter; and (2) that he be dismissed from the service with prejudice to his reappointment to any position in the government, including government-owned or controlled corporations, and with forfeiture of all retirement benefits except accrued leave credits. When the case reaches the Supreme Court, Quitain tendered his resignation which was accepted without prejudice to the decision of the administrative case.

 

ISSUE#1: Does the resignation of the judge renders the administrative proceedings against him moot and academic?

HELD#1: NO.

[T]he resignation of Judge Quitain which was accepted by the Court without prejudice does not render moot and academic the instant administrative case. The jurisdiction that the Court had at the time of the filing of the administrative complaint is not lost by the mere fact that the respondent judge by his resignation and its consequent acceptance – without prejudice – by this Court, has ceased to be in office during the pendency of this case. The Court retains its authority to pronounce the respondent official innocent or guilty of the charges against him. A contrary rule would be fraught with injustice and pregnant with dreadful and dangerous implications. Indeed, if innocent, the respondent official merits vindication of his name and integrity as he leaves the government which he has served well and faithfully; if guilty, he deserves to receive the corresponding censure and a penalty proper and imposable under the situation.

 

ISSUE#2: (Judicial Ethics) Can the judge be excused of his omission in the PDS?

HELD#2: NO.

We cannot overemphasize the need for honesty and integrity on the part of all those who are in the service of the Judiciary. We have often stressed that the conduct required of court personnel, from the presiding judge to the lowliest clerk of court, must always be beyond reproach and circumscribed with the heavy burden of responsibility as to let them be free from any suspicion that may taint the Judiciary. We condemn, and will never countenance any conduct, act or omission on the part of all those involved in the administration of justice, which would violate the norm of public accountability and diminish or even just tend to diminish the faith of the people in the Judiciary.

 

Solidon v. Macalalad [A.C. 8158. February 24, 2010]

ATTY. ELMER C. SOLIDON, complainant,
vs.
ATTY. RAMIL E. MACALALAD, respondent.

[A.C.8158. February 24, 2010]

FACTS:

Complainant, through a mutual acquaintance asked respondent to handle the judicial titling of a parcel of land owned by complainant’s relatives. Respondent accepted the task to be completed within a period of eight (8) months and received Fifty Thousand Pesos (P50,000.00) as initial payment; the remaining balance of Thirty Thousand Pesos (P30,000.00) was to be paid when complainant received the certificate of title to the property. Respondent has not filed any petition for registration over the property sought to be titled up to the filing of this case. In the Complaint, Position Papers and documentary evidence submitted, complainant claimed that he tried to contact respondent to follow-up on the status of the case six (6) months after he paid the initial legal fees.  He did this through phone calls and text messages to their known acquaintances and relatives, and, finally, through a letter sent by courier to the respondent.  However, he did not receive any return communication. Complainant sought the disbarment of respondent for violations of Rule 16.01, Rule 18.03, and Rule 18.04 of the Code of Professional Responsibility involving negligence in handling a case. Complainant argued that he had no intention of reneging from his obligation, as he already had prepared the draft petition, and he failed to file it because it lacked the needed documentary requirements that his clients should have furnished him.   The Investigating Commissioner of IBP made a finding negligence on the part of the respondent. This was affirmed by the IBP Commission on Bar Discipline.

ISSUE:

Legal Ethics

(1)  Whether or not the respondent’s excuse is exculpatory.

RULING:

Legal Ethics

(1)  No. Respondent’s excuse is not exculpatory. He was imposed the (modified) penalty of suspension for six (6) months from the practice of law and was ordered to return to the complainant the amount of Fifty Thousand Pesos (P50,000.00) with interest of twelve percent (12%) per annum from the date of promulgation of the Decision until the full amount is returned.

In administrative cases against lawyers, the quantum of proof required is preponderance of evidence which the complainant has the burden to discharge. We fully considered the evidence presented and we are fully satisfied that the complainant’s evidence, as outlined above, fully satisfies the required quantum of proof in proving respondent’s negligence. Rule 18.03, Canon 18 of the Code of Professional Responsibility provides for the rule on negligence and states:

Rule 18.03 – A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.

The Court has consistently held, in construing this Rule, that the mere failure of the lawyer to perform the obligations due to the client is considered per se a violation. (underscoring provided)

In addition to the above finding of negligence, [Court] also [found]  respondent guilty of violating Rule 16.01 of the Code of Professional Responsibility which requires a lawyer to account for all the money received from the client.  In this case, respondent did not immediately account for and promptly return the money he received from complainant even after he failed to render any legal service within the contracted time of the engagement.

 

Labao v. Flores [G.R. No. 187894. November 15, 2010]

FRANCISCO A. LABAO, petitioner,
vs.
LOLITA N. FLORES et al., respondents.

[G.R. No. 187894. November 15, 2010]

FACTS:

Petitioner is the proprietor and general manager of a licensed security-service contractor.  Respondents were security guards assigned to the National Power Corporation (NPC-Mindanao). Petitioner issued a memorandum requiring all security guards to submit their updated personal data files, security guard professional license, and other pertinent documents.  When respondents failed to comply with the petitioner’s directive, despite several notices to do so, the petitioner relieved them. Respondents filed individual complaints with Labor Arbiter (LA) for illegal dismissal and money claims, claiming they were constructively dismissed when they were not given new assignments for a period of over 6 months, despite their repeated requests. Petitioner countered that the respondents’ relief from duty was a valid exercise of its management prerogative. Furthermore, petitioner issued a notice directing the respondents to report to SMPSA’s main office for new assignments, but the latter failed or refused to comply without any valid reasons. The LA ruled in favor of the petitioner. On appeal, the NLRC affirmed the LA decision. Counsel for the respondents appealed with the Court of Appeals (CA) outside the reglementary period, yet the ruling was in favor of respondents. The petitioner and SMPSA moved for reconsideration, arguing that the CA should have dismissed the petition outright for late filing, and that there was no compelling reason for the reversal of the LA and the NLRC’s factual findings. CA considered the respondents’ petition as timely filed and also opined that disregarding any procedural lapses best served substantial justice.

ISSUES:

Labor Law

(1)  Whether or not the ruling of the Labor Arbiter is proper in the sense that petitioner was validly exercising a management prerogative.

Remedial Law

(1)  Whether or not the Court of Appeals erred in acting on the respondents’ petition despite of its late filing.

(2)  Whether or not the Court of Appeals erred in reversing the LA and NLRC decisions.

Legal Ethics

(1)  Whether or not the negligence of counsel binds the respondents.

RULINGS:

Labor Law

(1)  Yes. The LA dismissed the consolidated complaints for lack of merit.  He held that the respondents’ relief from NPC-MRC duty was due to their failure to comply with SMSPA’s requirement for its employees to submit updated documents to meet NPC-MRC contract renewal requirements.  According to the LA, this was a legitimate exercise of NPC-MRC’s management prerogative, in light of the information it received that some security guards carried falsified documents.

Remedial Law

(1)  Yes. Late filing should not be allowed. Under Section 4 of Rule 65 of the 1997 Rules of Civil Procedure, certiorari should be instituted within a period of 60 days from notice of the judgment, order, or resolution sought to be assailed. The 60-day period is inextendible to avoid any unreasonable delay that would violate the constitutional rights of parties to a speedy disposition of their case. Procedural rules do not exist for the convenience of the litigants; the rules were established primarily to provide order to, and enhance the efficiency of, our judicial system. While procedural rules are liberally construed, the provisions on reglementary periods are strictly applied, indispensable as they are to the prevention of needless delays, and are necessary to the orderly and speedy discharge of judicial business. The timeliness of filing a pleading is a jurisdictional caveat that even this Court cannot trifle with.

(2)  Yes. The NLRC’s resolution became final ten (10) days after counsel’s receipt, and the respondents’ failure to file the petition within the required (60)-day period rendered it impervious to any attack through a Rule 65 petition for certiorari.  Thus, no court can exercise jurisdiction to review the resolution. A decision that has acquired finality becomes immutable and unalterable and may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact or law and whether it will be made by the court that rendered it or by the highest court of the land. All the issues between the parties are deemed resolved and laid to rest once a judgment becomes final and executory; execution of the decision proceeds as a matter of right as vested rights are acquired by the winning party.  Just as a losing party has the right to appeal within the prescribed period, the winning party has the correlative right to enjoy the finality of the decision on the case. After all, a denial of a petition for being time-barred is tantamount to a decision on the merits. Otherwise, there will be no end to litigation, and this will set to naught the main role of courts of justice to assist in the enforcement of the rule of law and the maintenance of peace and order by settling justiciable controversies with finality. Petition was granted and the decision of Labor Arbiter is reinstated.

Legal Ethics

(1)  Yes. The Court cannot sustain the respondents’ argument that they cannot be bound by their counsel’s negligence since this would set a dangerous precedent. It would enable every party-litigant to render inoperative any adverse order or decision of the courts or tribunals, through the simple expedient of alleging his/her counsel’s gross negligence. The general rule is that a client is bound by the acts, even mistakes, of his counsel in the realm of procedural technique. The exception to this rule is when the negligence of counsel is so gross, reckless and inexcusable that the client is deprived of his day in court. The failure of a party’s counsel to notify him on time of the adverse judgment, to enable him to appeal therefrom, is negligence that is not excusable.  [Court had] repeatedly held that notice sent to counsel of record is binding upon the client, and the neglect or failure of counsel to inform him of an adverse judgment resulting in the loss of his right to appeal is not a ground for setting aside a judgment valid and regular on its face.

 

Position Paper: “Why I Teach Law” by Fr. R.C. Aquino

I take the negative position (choosing the Bar over graduate studies of law). However, this does not mean that I oppose to the position of Fr. Aquino nor subscribe to his critic as mentioned in the article. For me, it is just a matter of priority.

I have the chance to understand the two different views from my own personal experience. I have passion for both science and mathematics. When I was young, I wanted to be a scientist. When I came to understand the practicalities of life, I have to defer that dream of “pure” science for some “applied” profession in order to survive in the society. I chose to be an engineer. While I love every aspect of quantum physics and the theory of relativity, I had to settle for classical physics and engineering mechanics. I actually never had the opportunity to choose. If only I was given a bountiful life where I can depart from “matching type” of career selection (rather than multiple choice or fill in the blanks), I will choose to be a purist, and dedicate my life for academic excellence and service to mankind.

Between a Master or even a Doctor of Laws and a Member of the Bar, again, I would have to yield to the latter. Not that I undermine the kind of academic superiority of the former, but because of futility in losing an opportunity to live practically and compensate materially. Similarly, there is less than promising future for my family should I choose to be a scientist as compared to the versatility and marketability of an engineer. Unlike in first world countries, we do not have sufficient support for these kinds of people in research and advancement. Should I choose in the future to pursue graduate studies (of law), I will have to devote more time in studying (and spending) than earning for my kids. But if I had all the time and resources to raise my family well, I would have chosen to be an academician and discuss law the same way as Fr. Aquino did. Otherwise, it would practically be like living in isolation (from my own family). I can’t. It just ceased to be my priority.

Oftentimes I was deprived acceptance of my opinions regarding some matters of law from which I devoted time, effort and extensive research which I believe others, not even lawyers, have done on certain special laws. It is just not fair. Just because they are lawyers and I am not one does it automatically follow that I am not competent to discuss a law or any of its provision? I can only validly agree with Fr. Aquino’s last statement that the prefix of “Atty.” before his name is immaterial in teaching law. But in my case, who needs an additional title when I already have one – “Engr.”? For me, the title of “Atty.” would just be incidental. It will still be substance of a person over his title.

 

Understanding Crimes Involving Moral Turpitude

One of the requirement before one can be admitted to practice of law is a satisfactory evidence of good moral character and not having been filed any charge against him involving moral turpitude in any Philippine Court (Section 2, Rule 138, Rules of Court). But what precisely, if not exactly is moral turpitude?

One of the Supreme Court jurisprudence that I recommend is the concurring opinion of Associate Justice Arturo Brion in the case of  Teves vs. COMELEC (G.R. No. 180363. April 28, 2009). There, Justice Brion discussed a brief (legislative) history of the term. Its roots can be traced from US immigration laws as early as 17th century. Since then, there was a gradual qualification of felony, offenses and crimes to be associated with “moral turpitude”, and fraudulent conduct was a controlling factor in associating it.

In the early editions of Black’s Law Dictionary, it defines moral turpitude as:

[An] act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man. xxx  Act or behavior that gravely violates moral sentiment or accepted moral standards of community and is a morally culpable quality held to be present in some criminal offenses as distinguished from others. xxx The quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory mala prohibita.

In a case which involved a lawyer (In Re Basa, 1920) having committed abduction with consent, the Supreme Court (of the Philippines) through Justice Malcolm have spoken:

“Moral turpitude,” it has been said, “includes everything which is done contrary to justice, honesty, modesty, or good morals.” (Bouvier’s Law Dictionary, cited by numerous courts.) Although no decision can be found which has decided the exact question, it cannot admit of doubt that crimes of this character involve moral turpitude. The inherent nature of the act is such that it is against good morals and the accepted rule of right conduct.

Since then, some of the identified crimes involving moral turpitude were identified as follows:

1. Abduction with consent
2. Seduction under promise of marriage
3. Bigamy
4. Concubinage
5. Adultery
6. Smuggling
7. Rape
8. Estafa through falsification of a document
9. Attempted Bribery
10. Profiteering
11. Robbery
12. Murder, whether consummated or attempted
13. Estafa
14. Theft
15. Blackmail
16. Illicit Sexual Relations with a Fellow Worker
17. Violation of BP Blg. 22
18. Falsification of Document
19. Mutilation of public records
20. Fabrication of evidence
21. Making fraudulent proof of loss on insurance contract
22. Offenses against pension laws
23. Evasion of income tax
24. Intriguing against Honor
25. Violation of the Anti-Fencing Law
26. Violation of Dangerous Drugs Act of 1972 (Drug-pushing)
27. Criminal conspiracy to smuggle opium
28. Perjury
29. Forgery
30. Libel
31. Direct Bribery
32. Frustrated Homicide
33. Arson
34. Barratry
35. Dueling
36. Embezzlement

 On the other hand, the following crimes were ruled out not to be involving moral turpitude:

1. Minor transgressions of the law (i.e., conviction for speeding)
2. Illegal recruitment
3. Slight physical injuries
4. Carrying of deadly weapon (Illegal possession of firearms)
5. Indirect Contempt

There were three (3) approaches to determine if the any crime, not previously identified, may be considered as crime involving moral turpitude:

First approach: (objective approach) involvement of moral turpitude where an act is intrinsically immoral, regardless of whether it is punishable by law or not. The Court emphasized that moral turpitude goes beyond being merely mala prohibita; the act itself must be inherently immoral.  Thus, this approach requires that the committed act itself be examined, divorced from its characterization as a crime.

Second approach: look at the act committed through its elements as a crime.  The Court recognized that as a “general rule, all crimes of which fraud is an element are looked on as involving moral turpitude.”  This is the same conclusion that the U.S. Supreme Court, that crimes requiring fraud or intent to defraud always involve moral turpitude.

Third approach: (subjective approach) essentially takes the offender and his acts into account in light of the attendant circumstances of the crime: was he motivated by ill will indicating depravity?

For the three approaches, the defining question is: Is it contrary to the accepted rules of right and duty, justice, honesty and good morals? To be able to be cleared and ruled out of the definition of “moral turpitude”, all three must be answered in the negative.

BTW, in the cited case, the SC ruled:

WHEREFORE, the petition is GRANTED. The assailed Resolutions of the Commission on Elections dated May 11, 2007 and October 9, 2007 disqualifying petitioner Edgar Y. Teves from running for the position of Representative of the 3rd District of Negros Oriental, are REVERSED and SET ASIDE and a new one is entered declaring that the crime committed by petitioner (violation of Section 3(h) of R.A. 3019) did not involve moral turpitude.

 

Bautista vs Gonzales [A.M. No. 1625. February 12, 1990]

[Per Curiam]

FACTS:

In a verified complaint filed by Angel L. Bautista, respondent Ramon A. Gonzales was charged with malpractice, deceit, gross misconduct and violation of lawyer’s oath. Required by this Court to answer the charges against him, respondent filed a motion for a bill of particulars asking this Court to order complainant to amend his complaint by making his charges more definite. In a resolution the Court granted respondent’s motion and required complainant to file an amended complaint. Complainant submitted an amended complaint for disbarment, alleging that respondent committed the following acts:

1. Accepting a case wherein he agreed with his clients, namely, Alfaro Fortunado, Nestor Fortunado and Editha Fortunado [hereinafter referred to as the Fortunados] to pay all expenses, including court fees, for a contingent fee of fifty percent (50%) of the value of the property in litigation.

x x x

4. Inducing complainant, who was his former client, to enter into a contract with him on August 30, 1971 for the development into a residential subdivision of the land involved in Civil Case No. Q-15143, covered by TCT No. T-1929, claiming that he acquired fifty percent (50%) interest thereof as attorney’s fees from the Fortunados, while knowing fully well that the said property was already sold at a public auction on June 30, 1971, by the Provincial Sheriff of Lanao del Norte and registered with the Register of Deeds of Iligan City;

x x x

Pertinent to No. 4 above, the contract, in No. 1 above, reads:

We the [Fortunados] agree on the 50% contingent fee, provided, you [respondent Ramon Gonzales] defray all expenses, for the suit, including court fees.

ISSUE:

Whether or not respondent committed serious misconduct involving a champertous contract.

HELD:

YES. Respondent was suspended from practice of law for six (6) months.

RATIO:

The Court finds that the agreement between the respondent and the Fortunados 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 litigation. [See also Rule 16.04, Code of Professional Responsibility]. Although a lawyer may in good faith, advance the expenses of litigation, the same should be subject to reimbursement. The agreement between respondent and the Fortunados, however, does not provide for reimbursement to respondent of litigation expenses paid by him. An agreement whereby an attorney agrees to pay expenses of proceedings to enforce the client’s rights is champertous [citation omitted]. Such agreements are against public policy especially where, as in this case, the attorney has agreed to carry on the action at his own expense in consideration of some bargain to have part of the thing in dispute [citation omitted]. The execution of these contracts violates the fiduciary relationship between the lawyer and his client, for which the former must incur administrative sanctions.

 

Nakpil vs Valdes [A.C. No. 2040. March 4, 1998]

Ponente: PUNO, J.

FACTS:

Jose Nakpil, husband of the complainant, became interested in purchasing a summer residence in Moran Street, Baguio City. For lack of funds, he requested respondent to purchase the Moran property for him. They agreed that respondent would keep the property in thrust for the Nakpils until the latter could buy it back. Pursuant to their agreement, respondent obtained two (2) loans from a bank which he used to purchase and renovate the property. Title was then issued in respondent’s name.

The ownership of the Moran property became an issue in the intestate proceedings when Jose Nakpil died. Respondent acted as the legal counsel and accountant of his widow. Respondent excluded the Moran property from the inventory of Jose’s estate and transferred his title to the Moran property to his company, the Caval Realty Corporation.

ISSUE:

Whether or not there was conflict of interest between the respondent Atty. Valdes and the complainant.

HELD:

YES. Respondent was suspended from practice of law for one (1) year.

RATIO:

[T]here is no question that the interests of the estate and that of its creditors are adverse to each other. Respondent’s accounting firm prepared the list of assets and liabilities of the estate and, at the same time, computed the claims of two creditors of the estate. There is clearly a conflict between the interest of the estate which stands as the debtor, and that of the two claimants who are creditors of the estate.

[R]espondent undoubtedly placed his law firm in a position where his loyalty to his client could be doubted. In the estate proceedings, the duty of respondent’s law firm was to contest the claims of these two creditors but which claims were prepared by respondent’s accounting firm. Even if the claims were valid and did not prejudice the estate, the set-up is still undesirable. The test to determine whether there is a conflict of interest in the representation is probability, not certainty of conflict. It was respondent’s duty to inhibit either of his firms from said proceedings to avoid the probability of conflict of interest.

Public confidence in law and lawyers may be eroded by the irresponsible and improper conduct of a member of the bar. Thus, a lawyer should determine his conduct by acting in a manner that would promote public confidence in the integrity of the legal profession. Members of the bar are expected to always live up to the standards embodied in the Code of Professional Responsibility as the relationship between an attorney and his client is highly fiduciary in nature and demands utmost fidelity and good faith. In the case at bar, respondent exhibited less than full fidelity to his duty to observe candor, fairness and loyalty in his dealings and transactions with his clients.

 

B.R. Sebastian Enterprises, Inc. vs C.A. [G.R. No. L-41862. February 7, 1992]

Ponente: DAVIDE, JR., J.

FACTS:

[P]etitioner, thru its then counsel of record, Baizas, Alberto and Associates, received notice to file Appellant’s Brief within 45 days from receipt thereof. Counsel for petitioner failed to file the Brief thus respondent Court issued a Resolution requiring said counsel to show cause why the appeal should not be dismissed for failure to file the Appellant’s Brief within the reglementary period. As the latter failed to comply with the above Resolution, respondent Court issued another Resolution this time dismissing petitioner’s appeal.

[P]etitioner, this time thru the BAIZAS LAW OFFICE, filed a motion for reconsideration of the resolution dismissing its appeal alleging that as a result of the death of Atty. Crispin Baizas, senior partner in the law firm of BAIZAS, ALBERTO & ASSOCIATES, the affairs of the said firm are still being settled between Atty. Jose Baizas (son of Crispin Baizas) and Atty. Ruby Alberto, the latter having established her own law office; furthermore, Atty. Rodolfo Espiritu, the lawyer who handled this case in the trial court and who is believed to have also attended to the preparation of the Appellant’s Brief but failed to submit it through oversight and inadvertence, had also left the firm.

ISSUE:

Whether or not the death of a partner extinguish the lawyer-client relationship with the law firm.

HELD:

NO. Petition was dismissed.

RATIO:

Petitioner’s counsel was the law firm of BAIZAS, ALBERTO & ASSOCIATES and not merely Atty. Crispin Baizas. Hence, the death of the latter did not extinguish the lawyer-client relationship between said firm and petitioner. With Baizas’ death, the responsibility of Atty. Alberto and his Associates to the petitioner as counsel remained until withdrawal by the former of their appearance in the manner provided by the Rules of Court. This is so because it was the law firm which handled the case for petitioner before both the trial and appellate courts. That Atty. Espiritu, an associate who was designated to handle the case, later left the office after the death of Atty. Baizas is of no moment since others in the firm could have replaced him. Upon receipt of the notice to file Brief, the law firm should have re-assigned the case to another associate or, it could have withdrawn as counsel in the manner provided by the Rules of Court so that the petitioner could contract the services of a new lawyer.

Moreover, petitioner itself was guilty of negligence when it failed to make inquiries from counsel regarding its case. As pointed out by respondents, the president of petitioner corporation claims to be the intimate friend of Atty. Crispin Baizas; hence, the death of the latter must have been known to the former. This fact should have made petitioner more vigilant with respect to the case at bar. Petitioner failed to act with prudence and diligence, thus, its plea that they were not accorded the right to procedural due process cannot elicit either approval or sympathy.

 

Donald Dee vs C.A. [G.R. No. 77439. August 24, 1989]

Ponente: REGALADO, J.

FACTS:

Petitioner and his father went to the residence of private respondent, accompanied by the latter’s cousin, to seek his advice regarding the problem of the alleged indebtedness of petitioner’s brother, Dewey Dee, to Caesar’s Palace, a well-known gambling casino at Las Vegas, Nevada, U.S.A. Private respondent personally talked with the president of Caesar’s Palace at Las Vegas, Nevada. He advised the president that for the sake and in the interest of the casino it would be better to make Ramon Sy answer for the indebtedness. The president told him that if he could convince Ramon Sy to acknowledge the obligation, Dewey Dee would be exculpated from liability for the account. Upon private respondent’s return to Manila, he conferred with Ramon Sy and the latter was convinced to acknowledge the indebtedness. In August, 1981, private respondent brought to Caesar’s Palace the letter of Ramon Sy owning the debt and asking for a discount. Thereafter, the account of Dewey Dee was cleared and the casino never bothered him.

Having thus settled the account of petitioner’s brother, private respondent sent several demand letters to petitioner demanding the balance of P50,000.00 as attorney’s fees. Petitioner, however, ignored said letters.

ISSUE:

Whether or not there is an attorney-client relationship between parties.

HELD:

YES. Court affirmed the decision of the defendant Court of Appeals. Costs against the petitioner.

RATIO:

[T]here is no question that professional services were actually rendered by private respondent to petitioner and his family. Through his efforts, the account of petitioner’s brother, Dewey Dee, with Caesar’s Palace was assumed by Ramon Sy and petitioner and his family were further freed from the apprehension that Dewey might be harmed or even killed by the so-called mafia. For such services, respondent Mutuc is indubitably entitled to receive a reasonable compensation and this right cannot be concluded by petitioner’s pretension that at the time private respondent rendered such services to petitioner and his family, the former was also the Philippine consultant of Caesar’s Palace.

A lawyer is entitled to have and receive the just and reasonable compensation for services rendered at the special instance and request of his client and as long as he is honestly and in good faith trying to serve and represent the interests of his client, the latter is bound to pay his just fees.