2.10 NCC 2208 When Attorney’s fee may be recovered? Gen. rule?

NCC Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other
than judicial costs, cannot be recovered, except:

(1) When exemplary damages are awarded;

(2) When the defendant's act or omission has compelled the plaintiff to litigate with third
persons or to incur expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff's
plainly valid, just and demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;
(8) In actions for indemnity under workmen's compensation and employer's liability laws;
(9) In a separate civil action to recover civil liability arising from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and equitable that attorney's fees and
expenses of litigation should be recovered.
In all cases, the attorney's fees and expenses of litigation must be reasonable.

2.11 Labor Code Article 203 Application or filling of health benefits 222- prohibition for
appearances of non-lawyer

ART. 203. Prohibition. - No agent, attorney or other person pursuing or in charge of the
preparation or filing of any claim for benefit under this Title shall demand or charge for his
services any fee, and any stipulation to the contrary shall be null and void. The retention or
deduction of any amount from any benefit granted under this Title for the payment of fees for
such services is prohibited. Violation of any provision of this Article shall be punished by a fine
of not less than five hundred pesos nor more than five thousand pesos, or imprisonment for
not less than six months nor more than one year, or both, at the discretion of the court.

2.12 Revised Penal Code Article 209 Betrayal of trust by atty. Or solicitor

Art. 209. Betrayal of trust by an attorney or solicitor. — Revelation of secrets. — In addition to

the proper administrative action, the penalty of prision correccional in its minimum period, or a
fine ranging from 200 to 1,000 pesos, or both, shall be imposed upon any attorney-at-law or
solicitor ( procurador judicial) who, by any malicious breach of professional duty or of
inexcusable negligence or ignorance, shall prejudice his client, or reveal any of the secrets of
the latter learned by him in his professional capacity.

The same penalty shall be imposed upon an attorney-at-law or solicitor

(procurador judicial) who, having undertaken the defense of a client or having received
confidential information from said client in a case, shall undertake the defense of the opposing
party in the same case, without the consent of his first client.

2.13 Is the code of professional responsibility a statute?

Statute. An act of a legislature that declares, proscribes, or commands something; a

specific law, expressed in writing. A statute is a written law passed by a legislature on the state
or federal level. Statutes set forth general propositions of law that courts apply to specific
situations.

The Code of Professional Responsibility is a set of rules governing the ethical conduct of
attorneys in the practice of the law. It deals with issues such as conflicts of interest, honest
disclosure with clients, confidentiality, and professional conduct toward other attorneys and
the courts.

The Canons of the Code are statements of axiomatic norms, expressing in general terms the
standards of professional conduct expected of lawyers in their relationships with the public,
with the legal system, and with the legal profession. They embody the general concepts from
which the Ethical Considerations and the Disciplinary Rules are derived.

The Ethical Considerations are aspirational in character and represent the objectives toward
which every member of the profession should strive. They constitute a body of principles upon
which the lawyer can rely for guidance in many specific situations.

The Disciplinary Rules, unlike the Ethical Considerations, are mandatory in character. The
Disciplinary Rules state the minimum level of conduct below which no lawyer can fall without
being subject to disciplinary action.

Problem Area 2: Is contingent fess allowed? Is Article 1491 (5) applicable to contingent fees?

A contingent fee is defined as a fee charged for a lawyer's services that is payable only if a
lawsuit is successful or results in a favorable settlement, usually in the form of a percentage of
the amount recovered on behalf of the client. Contingent fees may make it easier people of
limited means to pursue their civil rights since otherwise, to sue someone for a tort, one must
first be wealthy enough to pursue such litigation in the first place Due to the risk of
loss, attorneys will take cases on a contingency basis unless they believe that the case has
merit, although accepting cases on a contingency is not without risk.

Article 1491 (5)

The following persons are prohibited from acquiring property under litigation by reason of the
relation of trust or their peculiar control either directly or indirectly and even at a public or
judicial auction:
1. guardians;
2. agents
 3. administrators
4. public officers and employees
5. judicial officers and employees
6. prosecuting attorneys and lawyers (Art 1491, NCC)
7. those specially disqualified by law (Rubias vs. Batilles, 31 SCRA 120)

Elements of Article 1491 (Civil Code; Laig vs. CA, 82 SCRA 294)
1. there must be an attorney-client relationship
2. the property or interest of the client must be in litigation
3. the attorney takes part as counsel in the case
4. the attorney by himself or through another purchases such property or interest during
the pendency of the litigation.

General Rule: A lawyer may not purchase, even at a public or judicial auction, in person or
through the mediation of another, any property or interest involved in any litigation in which
he may take part by virtue of his profession. This prohibition is entirely independent of fraud
and such need not be alleged or proven.

Effects:
1. malpractice on the part of the lawyer and may be disciplined for misconduct
2. transaction is null and void

Exceptions:
1. property is acquired by lawyer through a contingent fee arrangement
2. any of the 4 elements of Art. 1491 is missing

3 Define practice of law

3.1 Defined by PP vs Villanueva

THE PEOPLE OF THE PHILIPPINES,

vs.
SIMPLICIO VILLANUEVA,
G.R. No. L-19450 May 27, 1965

FACTS:

On Sept. 4, 1959, the Chief of Police of Alaminos, Laguna, charged SImplicio Villanueva with
crime of Malicious Mischiedf, before the Justice of the Peace Court of said Municipality. Said
accused was represented by counsel de oficio, but later on replaced by counsel de parte. The
complainant in the same case was representry by City Attorney Ariston Fule of San Pablo City,
having entered his appearance as private-prosecutor, having secuting the permission of the the
Secretary of Justice.
Counsel for the accused presented a “Motion in inhibit Fiscal Fule from Acting as Private
prosecutor in this case, “this time invoking sec. 32, Rule 127, now sec. 35, Rule 138, Revised
Rules, which bars certain attorneys from practicing.

Issue: Whether of not Atty. Fule violate sec. 32 of Rule 127 now Sec. 35, Rule 138, revised Rules
of Court, which bars certain attorneys from practicing.

Ruling:

The Court holds that the appearance of Attorney Fule did not constitute private practice, within
the meaning and contemplation of the Rules. Practice is more than isolated appearance, for it
consists in frequent or customary action, a succession of acts of the same kind. The
word private practice of law implies that one must have presented himself to be in the active
and continued practice of the legal profession and that his professional services are available
to the public for compensation, as a source of his livelihood or in consideration of his said
services. It has never been refuted that City Attorney Fule had been given permission by his
immediate supervisor, the Secretary of Justice, to represent the complainant in the case at bar,
who is a relative.

3.2 Defined by Cayetano v Monsod

Cayetano vs. Monsod

201 SCRA 210

September 1991

Facts:
Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position
of chairman of the COMELEC. Petitioner opposed the nomination because allegedly Monsod
does not posses required qualification of having been engaged in the practice of law for at least
ten years. The 1987 constitution provides in Section 1, Article IX-C: There shall be a Commission
on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens
of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders
of a college degree, and must not have been candidates for any elective position in the
immediately preceding elections. However, a majority thereof, including the Chairman, shall be
members of the Philippine Bar who have been engaged in the practice of law for at least ten
years.
Issue: Whether the respondent does not posses the required qualification of having engaged in
the practice of law for at least ten years.

Ruling:

In the case of Philippine Lawyers Association vs. Agrava, stated: The practice of law is not
limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings
and other papers incident to actions and special proceeding, the management of such actions
and proceedings on behalf of clients before judges and courts, and in addition, conveying. In
general, all advice to clients, and all action taken for them in matters connected with the law
incorporation services, assessment and condemnation services, contemplating an appearance
before judicial body, the foreclosure of mortgage, enforcement of a creditor’s claim in
bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in
matters of estate and guardianship have been held to constitute law practice. Practice of law
means any activity, in or out court, which requires the application of law, legal procedure,
knowledge, training and experience.

The contention that Atty. Monsod does not posses the required qualification of having engaged
in the practice of law for at least ten years is incorrect since Atty. Monsod’s past work
experience as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a
lawyer-negotiator of contracts, and a lawyer-legislator of both rich and the poor – verily more
than satisfy the constitutional requirement for the position of COMELEC chairman, The
respondent has been engaged in the practice of law for at least ten years does In the view of
the foregoing, the petition is DISMISSED.