Answers LEGAL ETHICS BAR EXAM

2008 LEGAL ETHICS BAR EXAM 

I

Christine was appointed counsel de oficio for Zuma, who was accused of raping his own daughter. Zuma pleaded not guilty but thereafter privately admitted to Christine that he did commit the crime charged.

1. In light of Zuma’s admission, what should Christine do? Explain. (3%)

Christine should suggest to Zuma that he should plead guilty to the crime as charged.

Canon 19, Rule 19.02 of the CPR states that “a lawyer who has received information that his client has, in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he shall terminate the relationship with such client in accordance with the Rules of Court.”

1. Can Christine disclose the admission of Zuma to the court? Why or why not? (2%)

No, Christine cannot disclose Zuma’s admission to the court.

Canon 21, Rule 21.02 of the CPR provides that “a lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto.”

Christine cannot disclose the admission without violating the abovementioned canon. The information disclosed is in the nature of a privileged communication, hence, she cannot disclose it to the court without Zuma’s consent.

1. Can Christine withdraw as counsel of Zuma should he insist in going to trial? Explain. (3%)

Christine cannot withdraw as counsel of Zuma.

Canon 14, Rule 14.01 of CPR states that “a lawyer shall not decline to represent a person solely on account of the latter’s race, sex. creed or status of life, or because of his own opinion regarding the guilt of said person.”

Despite the admission of Zuma, Christine cannot withdraw as Zuma’s counsel because Zuma is still considered innocent until proven guilty. Further, there may be mitigating circumstances that Christine may raise as a defense that is favorable to Zuma.

II

In 1998, Acaramba, a telecommunications company, signed a retainer agreement with Bianca & Sophia Law Office (B & S) for the latter’s legal services for a fee of P2,000 a month. From 1998 to 2001, the only service actually performed by B & S for Acaramba was the review of a lease agreement and representation of Acaramba as a complainant in a bouncing checks case. Acaramba stopped paying retainer fees in 2002 and terminated its retainer agreement with B & S in 2005. In 2007, Temavous, another telecommunications company, requested B & S to act as its counsel in the following transactions: (a) the acquisition of Acaramba; and (b) the acquisition of Super-6, a company engaged in the power business.

In which transactions, if any, can Bianca & Sophia Law Office represent Temavous? Explain fully. (7%)

Bianca & Sophia Law Office cannot represent Temavous in the acquisition of Acaramba because the Canons of Professional Ethics (Canon 6) and the Code of Professional Responsibility (Canon 15) provide that a lawyer shall not represent parties with adverse interests to one another. Even though their relationship had already been terminated the Code further provides (Canon 21) that a lawyer should safeguard the confidences of his former client. In the case of acquisitions, B&S would definitely have an undue advantage (Rule 21.02-.03), or to appear to have such, in assisting Temavous’ acquisition of its former client due to its prior relationship. In contrast, as to the case of Super-6, B&S may represent Temavous because such a transaction is in no way connected to its prior relationship with Acaramba.

III

Dumbledore, a noted professor of commercial law, wrote an article on the subject of letters of credit which was published in the IBP Journal.

1. Assume he devoted a significant portion of the article to a commentary on how the Supreme Court should decide a pending case involving the application of the law on letters of credit. May he be sanctioned by the Supreme Court? Explain. (4%)

Yes, he may me sanctioned by the court.

Canon 13, Rule 13.02 provides that “a lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party.”

As a lawyer, Dumbledore should not have made such statements regarding a pending case so as not to influence the court in deciding the case or giving the public the impression that the court was influenced by his commentaries, should the court arrive at a decision similar to that of Dumbledore’s comments.

1. Assume Dumbledore did not include any commentary on the case. Assume further after the Supreme Court decision on the case had attained finality, he wrote another IBP Journalarticle, dissecting the decision and explaining why the Supreme Court erred in all its conclusions. May he be sanctioned by the Supreme Court? Explain. (3%)

No, he may not be sanctioned by the court.

Dumbledore’s commentary in the IBP journal is not unethical. What the CPR prohibits is the making of public statements regarding pending cases before the courts. Dumbledore’s article in the IBP Journal is about a decided case already. Once a case has been decided, it is already open for public consumption hence anyone can criticize or make known their opinions regarding the conclusion of the case.

IV

Chester asked Laarni to handle his claim to a sizeable parcel of land in Quezon City against a well-known property developer on a contingent fee basis. Laarni asked for 15% of the land that may be recovered or 15% of whatever monetary settlement that may be received from the property developer as her only fee contingent upon securing a favorable final judgment or compromise settlement. Chester signed the contingent fee agreement.

1. Assume the property developer settled the case after the case was decided by the Regional Trial Court in favor of Chester for P1 Billion. Chester refused to pay Laarni P150 Million on the ground that it is excessive. Is the refusal justified? Explain. (4%)

Yes, the refusal is justified.

Canon 20 of the CPR states that “a lawyer shall charge only fair and reasonable fees.”

Although under a contingent fee agreement lawyers are entitled to greater remuneration because of the possibility of receiving nothing at all, the fee charged must still be fair, reasonable and conscionable. In this case, the 150 million fee is excessive and unconscionable.

1. Assume there was no settlement and the case eventually reached the Supreme Court which promulgated a decision in favor of Chester. This time Chester refused to convey to Laarni 15% of the litigated land as stipulated on the ground that the agreement violates Article 1491 of the Civil Code which prohibits lawyers from acquiring by purchase properties and rights which are the object of litigation in which they take part by reason of their profession. Is the refusal justified? Explain. (4%)

The refusal is not justified.

The transfer of the land to Laarni would not violate Article 1491 of the Civil Code because said article does not cover contingent fee agreements. This is because in a contingent fee agreement a transfer would only occur in case a favorable judgment is obtained. Further, the case reached the Supreme Court which means that Laarni spent so much time on the case and much of her skills were demanded hence the 150 million is a fair and reasonable fee.

V

The vendor filed a case against the vendee for the annulment of the sale of a piece of land.

1. Assume the vendee obtained a summary judgment against the vendor. Would the counsel for the defendant vendee be entitled to enforce a charging lien? Explain. (4%)

No, vendee’s counsel would not be entitled to enforce a charging lien.

A charging lien to be enforceable there must be a judgment for money. In the case at bar, there was no mention of a judgment for money in favor of the vendee thus vendee’s counsel cannot enforce a charging lien.

However, if there would be a judgment for money vendee’s counsel would be entitled to enforce the charging lien.

1. Assume, through the excellent work of the vendee’s counsel at the pre-trial conference and his wise use of modes of discovery, the vendor was compelled to move for the dismissal of the complaint. In its order the court simply granted the motion. Would your answer be the same as in question (a)? Explain. (3%)

Vendee’s counsel would still not be entitled to enforce a charging lien.

A dismissal on motion of the plaintiff would certainly not include a judgment for money. Therfore, the counsel cannot enforce a charging lien.

VI

Atty. Abigail filed administrative cases before the Supreme Court against Judge Luis. Thereafter, Atty. Abigail filed a Motion for Inhibition praying that Judge Luis inhibit himself from trying, hearing or in any manner acting on all cases, civil and criminal, in which Atty. Abigail is involved and handling.

Should Judge Luis inhibit himself as prayed for by Atty. Abigail? Explain fully. (6%)

No. Being the subject of an administrative case is not one of the grounds for disqualification of a judge from handling case provided by the Code of Judicial Responsibility in Canon 3 Rule 12.

VII

In need of legal services, Niko secured an appointment to meet with Atty. Henry of Henry & Meyer Law Offices. During the meeting, Niko divulged highly private information to Atty. Henry, believing that the lawyer would keep the confidentiality of the information. Subsequently, Niko was shocked when he learned that Atty. Henry had shared the confidential information with his law partner, Atty. Meyer, and their common friend, private practitioner Atty. Canonigo. When confronted, Atty. Henry replied that Niko never signed any confidentiality agreement, and that he shared the information with the two lawyers to secure affirmance of his legal opinion on Niko’s problem. Did Atty. Henry violate any rule of ethics? Explain fully. (7%)

Canon 21 provides that an attorney shall preserve the confidence of his client and further articulates this point in Rule 21.03-.04 by clarifying that he may not disclose such information to outside agencies without the consent of his client and that he may disclose such information to firm partners unless prohibited by his client. In the case of Atty. Meyer, he was a firm partner and as such is covered by Rule 21.04 and not being explicitly prohibited by Niko Henry committed no wrong in giving information to him. However in the case of Atty. Canonigo who was not in any way connected to the firm Henry committed a gross violation of Rule 21.03. In either case the mere entry into the attorney-client relationship obviates the need for a confidentiality agreement.

VIII

State, with a brief explanation, whether the lawyer concerned may be sanctioned for the conduct stated below.

1. Filing a complaint that fails to state a cause of action, thereby resulting in the defendant succeeding in his motion to dismiss. (3%)

Yes. Canon 18, Rule 18.02 states that “A lawyer shall not handle any legal matter without adequate preparation.” A lawyer should have exercised diligence and made adequate preparations to ascertain that the complaint stated a cause of action to prevent the dismissal of the complaint.

1. A suspended lawyer working as an independent legal assistant to gather information and secure documents for other lawyers during the period of his suspension. (3%)

Yes. Under the law, only lawyers in good standing can perform or engage in the practice of law. In the case of Cayetano vs. Monsod, the Court held that the practice of law involves rendering serice to the genral public that calls for the professional judgment of a lawyer, the essence of which is his educated ability to relate the general body and philosophy of law to a specified legal problem. Clearly, the act of working as a legal assistant in gathering information and securing documents for other lawyers is within the scope of practicing law. A suspended lawyer is temporarily prohibited to practice the legal profession therefor he cannot engage in the mentioned acts.

1. A suspended lawyer allowing his non-lawyer staff to actively operate his law office and conduct business on behalf of clients during the period of suspension. (3%)

Yes. Canon 9, Rule 9.01 states that “a lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the bar in good standing.”

1. Keeping money he collected as rental from his client’s tenant and remitting it to the client when asked to do so. (3%)

Yes. Canon 16, Rule 16.01 provides that “a lawyer shall account for all money or property collected or received for or from the client.” A lawyer should account for all money he collected immediately. He should not wait that the client would ask or demand for the money.

1. Refusing to return certain documents to the client pending payment of his attorney’s fees. (3%)

No. Rule 138, Section 37 of the Rules of Court states that “an attorney shall have a lien upon the funds, documents and papers of his client which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof.” Hence, he may keep the documents pending payment of his attorney’s fees.

1. An unwed female lawyer carrying on a clandestine affair with her unwed male hairdresser. (3%)

No. Both parties are of age and qualified to marry each other hence the affair is not one which is grossly immoral. It is not so corrupt nor so unprincipled to warrant sanction from the court.

1. Not paying the annual IBP dues. (3%)

Yes. Default in payment of IBP dues for 6 months shall warrant suspension of membership to the IBP and default in payment for one year shall warrant  for the removal of the member in the Roll of Attorneys.

IX

State, with a brief explanation, whether the judge concerned may be sanctioned for the conduct stated below.

1. Refusing to inhibit himself although one of the lawyers in the case is his second cousin. (3%)

No. Under Canon 3, Rule 3.12 a judge should take no part in a proceeding where the judge’s impartiality might reasonably be questioned. One of the cases would be where the judge is related by consanguinity or affinity to counsel within the fourth degree. A second cousin is a relative within the 6th  degree, hence it is not covered by the prohibition.

1. Deciding a case in accordance with a Supreme Court ruling but adding that he does not agree with the ruling. (3%)

No. There is no law or rule prohibiting such conduct. Regardless of his opinion, the judge still followed the Supreme Court’s ruling thus there is really nothing wrong with such act. Further, his opinion will not have any bearing as it is not part of the decision.

1. Dictating his decision in open court immediately after trial. (3%)

Yes. A judge should uphold the integrity and independence of the judiciary. He must not hastily issue decisions.