Alvarez, Rudy Jr. G.

Law 3D
rudyalvarez016@gmail.com

FINAL EXAMINATIONS
PROBLEM AREAS IN LEGAL ETHICS
BY: ATTY. MA. EDELYN A. ZARAGOZA-VENTURA
INSTRUCTIONS: Answer the following concisely and directly.
Submit your Answer either via email at meazventura@yahoo.comor messenger via Edz
ZV not later than 9:00 o’ clock in the morning of May 24, 2020.

1. State at least five Issues Confronting Lawyers in handling their Cases. Briefly discuss
each.
I.
A. Conflicting interest: RULE 15.03
A lawyer shall not represent conflicting interests except by written consent of all
concerned given after a full disclosure of the facts.

The general rule is that - A lawyer cannot represent diverse interest. An exception is it
may be allowed where the parties consent to the representation after full disclosure of
facts.
Jurisprudence: In the case of Imelda A. Nakpil v. Atty. Carlos J. Valdes the supreme
court held that that respondent is guilty of representing conflicting interests. It is
generally the rule, based on sound public policy, that an attorney cannot represent
adverse interests. It is highly improper to represent both sides of an issue. The
proscription against representation of conflicting interests finds application where the
conflicting interests arise with respect to the same general matter and is applicable
however slight such adverse interest may be. It applies although the attorney’s intentions
and motives were honest and he acted in good faith. However, representation of
conflicting interests may be allowed where the parties consent to the representation, after
full disclosure of facts. Disclosure alone is not enough for the clients must give their
informed consent to such representation. The lawyer must explain to his clients the nature
and extent of the conflict and the possible adverse effect must be thoroughly understood
by his clients.
B. Confidentiality Rule: Canon 21 of the Code of Professional Responsibility provides
that “A lawyer shall preserve the confidence and secrets of his clients even after the attorney-
client relationship is terminated.”

Confidence
It refers to information protected by the attorney-client privilege under applicable law.
SECRET
It refers to other information gained in the professional relationship that the client has requested
be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be
detrimental, to the client.

Duty to preserve client’s confidence, generally.

The rule applies to matter disclosed to him by prospective clients. It is the glory of the legal
profession that its fidelity to its client can be depended on and that a man may safely go to a
lawyer and converse with him upon his rights or supposed rights in any litigation with absolute
assurance that the lawyer’s tongue is tied from ever disclosing it.

Rule 21.01
A lawyer shall not reveal the confidences or secrets of his client except; A-R-C
(a) When authorized by the client after acquainting him of the consequences of the
disclosure;
(b) When required by law;
(c) When necessary to collect his fees or to defend himself, his employees or
associates or by judicial action.

Jurisprudence: In the case of Ariel Palacios v Atty. Bienvenido Amora, Jr the supreme
court held that Respondent used confidential information against his former client. It is
undeniable that, in causing the filing of a complaint against his former client, respondent
used confidential knowledge that he acquired while he was still employed by his former
client to further the cause of his new client. And, as earlier stated, considering that
respondent failed to obtain any written consent to his representation of Phil Golf’s
interests, he plainly violated the above rules. Clearly, respondent must be disciplined for
his actuations.

C. NEGLIGENCE IN HANDLING CASES: CANON 18

A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE
Diligence: A lawyer serves his client with diligence by adopting that norm of practice
expected of men of good intentions.
Degree of diligence: The practice of law does not require extraordinary diligence
(exactissima diligentia) or that extreme measure of care and caution which persons of
unusual prudence and circumspection use for securing and preserving their rights. All
that is required is ordinary diligence (diligentia) or that degree of vigilance expected of a
bonus pater familias.
UNFAVORABLE ORDER OR JUDGEMENT AGAINST THE CLIENT is the prejudice
to the client which may arise as a consequence of the lawyer’s negligence or carelessness.
Jurisprudence: In the case of CARLOS B. REYES vs, ATTY. JEREMIAS R. VITAN
The supreme court held that Atty. Jeremias R. Vitan was negligent in his conduct towards
his client in handling the case When respondent accepted the amount of P17,000.00 from
complainant, it was understood that he agreed to take up the latter's case and that an
attorney-client relationship between them was established. From then on, it was expected
of him to serve his client, herein complainant, with competence and attend to his cause
with fidelity, care and devotion. The act of receiving money as acceptance fee for legal
services in handling complainant's case and subsequently failing to render such services
is a clear violation of Canon 18 of the Code of Professional Responsibility which
provides that a lawyer shall serve his client with competence and diligence. More
specifically, Rule 18.03. " A lawyer shall not neglect a legal matter entrusted to him, and
his negligence in connection therewith shall render him liable." A member of the legal
profession owes his client entire devotion to his genuine interest, warm zeal in the
maintenance and defense of his rights.4 An attorney is expected to exert his best efforts
and ability to preserve his client's cause, for the unwavering loyalty displayed to his client
likewise serves the ends of justice. Verily, the entrusted privilege to practice law carries
with it the corresponding duties, not only to the client, but also to the court, to the bar and
to the public.

D. Money Matters: CANON 16 A lawyer shall hold in trust all moneys and
properties of his client that may come into his possession.
While Section 37, Rule 138 of the Rules of Court grants the lawyer a lien upon the funds,
documents and papers of his client, which have lawfully come into his possession, such
that he may retain the same until his lawful fees and disbursements have been paid, and
apply such funds to the satisfaction thereof, the lawyer still has the responsibility to
promptly account to his client for such moneys received. Failure to do so constitutes
professional misconduct. (Tanhueco v. De Dumo, A.M. No. 1437, April 25, 1989)
The lawyer’s failure to turn over such funds, moneys, or properties to the client despite
the latter’s demands give rise to the presumption that the lawyer had converted the money
for his personal use and benefit. This failure also renders the lawyer vulnerable to judicial
contempt under Section 25, Rule 138 of the Rules of Court.

Jurispridence: In the case of Luis De Guzman v. Atty. Emmanuel M. Basa the supreme
court held Atty. Emmanuel Basa negligent in the performance of his professional duty to
Luis de Guzman. Atty. Emmanuel M. Basa is negligent in the performance of his
professional duty to Luis de Guzman. He is guilty of gross misconduct. Where a client
gives money to his lawyer for a specific purpose, such as to file an action or appeal an
adverse judgment, the lawyer should, upon failure to take such step and spend the money
for it, immediately return the money to his client. His unjustified withholding of Luis’
money is a gross violation of the general morality and professional ethics.

E. Borrowing and lending: Rule 16.04 - A lawyer shall not borrow money from his
client unless the client's interest are fully protected by the nature of the case or by
independent advice. Neither shall a lawyer lend money to a client except, when in the
interest of justice, he has to advance necessary expenses in a legal matter he is handling
for the client.
Prohibition from borrowing money from client as a general rule a Lawyer is not allowed
to borrow money from his client except when the client’s interest is fully protected by the
nature of the case by independent advice.
Jurisprudence: In the case of NATIVIDAD P. NAVARRO vs. ATTY. IVAN M.
SOLIDUM, JR the supreme court held respondent violated Rule 16.04 of the Code of
Professional Responsibility A lawyer’s failure to return the excess money in his
possession gives rise to the presumption that he has misappropriated it for his own use to
the prejudice of, and in violation of the trust reposed in him by, the client. Clearly,
respondent had been negligent in properly accounting for the money he received from his
client, Presbitero. Indeed, his failure to return the excess money in his possession gives
rise to the presumption that he has misappropriated it for his own use to the prejudice of,
and in violation of the trust reposed in him by, the client.
2. A. You meet with your client to discuss his defense in the complaint filed against him
for you to be able to prepare the Answer. If your client admits all the material allegations
in the complaint against him, what will you do?
Answer:
II.
A. As counsel I will advise my client to acquiesce and submit, rather
than travers the inconvertible. Code of Professional responsibility
provides that a lawyer shall encourage his client, to avoid, end or settle a
controversy if it will admit of a fair settlement.

In the instant case, since my client admit all the material allegations
in the complaint I will advise him to enter into compromise or
settlement because in essence, there is no declared winner or loser in
settlement, henceforth. The relationship between the parties is not
restrained and parties will be excused from payment of unnecessary
court-related expenses and appearance fees of lawyers.

B. How you will handle the case in Trial: will you present witnesses whom you know
will not be telling the truth? Will you cross examine the witnesses against your client and
destroy their credibility despite the knowledge that they are telling the truth?
B. No, as lawyer who defend the equity of justice, I will not present
witnesses who will not be telling the truth. Code of Professional responsibility provides
that a lawyer shall employ only fair and honest means to attain the lawful objectives of
his client and shall not present, participate in presenting or threaten to present unfounded
criminal charges to obtain an improper advantage in any case or proceeding. Therefor a
lawyer should employ means only as are consistent with truth and honor. He should not
present any witness whom he knows, will perjure.
Yes, As lawyer it is my duty to cross examine the witnesses against my
client and destroy their credibility despite knowledge that they are telling the truth as long
as the means employed is fair and honest and within the bounds of law.

3. Discuss How you will handle the Trial of the Case Against your client if Based upon
your careful evaluation of the facts of the case and interview of the witnesses, it is your
considered opinion that the complainant has a good cause of action against your client
and the facts alleged in the complaint are true.
III.
As a lawyer I will accept the case and proceed to trial. The code of Professional
responsibility provides 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. It is not the duty of a lawyer to determine whether the accused is
guilty or not, but the Judge’s. In criminal case the accused is presumed innocent unless
his guilt is proven beyond reasonable doubt. The role of the lawyer is to see to it that it
his constitutional right to due process is observed.

4. Kris and Atty. James had been married for 10 years. Kris had been adamant in having a
baby so he tried to convince James to just adopt a child. Initially, James did not want to.
However, few months after, he found out that he impregnated another Julia,-his mistress.
Julia does not want to keep the baby as she was planning to work abroad. James then
talked to Kris and told the latter that he knows someone who is willing to give up her
baby for adoption. James told Kris that adoption proceedings is a tedious process and he
convinced her to just simulate the birth certificate of the child. James asked his partner at
the law firm Atty. Gerald to draft a contract where Julia would promise to drop all claims
against James and Kris if James took full responsibility for Julia’s financial needs until
her delivery and that Julia will waive her parental rights over the child. In favor of James
and Kris and that Julia’s consent to the simulation of the birth certificate. Julia agreed to
this. Kris agreed to James’ plan to skip the adoption process and just simulate the child’s
birth certificate and make it appear that they are the child’s biological parent without her
knowledge about James’ relationship with Julia.
Should Atty. Gerald draft the contract requested by Atty. James?

In case, Kris discovered the affair between Julia and James and eventually file an
administrative case against James, will the case prosper? Can James use the in pari
delicto principle as a defense saying that Kris is equally liable since she also consented to
the simulation of the child’s birth certificate?
Kris sought the help of Atty. Gerald and the latter executed an affidavit stating his role in
the drafting of an agreement. James filed a case against Atty. Gerald for alleged violation
of the privileged communication rule between a lawyer and his client. Atty. Gerald
argued that the lawyer-client relationship was not established between him and James
since he just drafted the contract for free and in consideration of his friendship with
James. Will the case prosper?
Due to his anger James also sued Atty. Gerald for notarizing the Contract without
requiring Julia’s presence. Atty. Gerald argued that before he notarized the same
contacted Julie via phone and he was able to confirm that she voluntarily signed the
contract and at that time Julia was still in the hospital making it physically impossible for
her to be at his office. Rule on Atty. Gerald’s defense.
IV.
A. No, Atty. Gerald should refuse to draft the contract.
The CODE OF PROFESSIONAL RESPONSIBILITY (CPR), Rule 1.01 provides
that “A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
In the instant case when James asked his partner Gerald to draft the said contract
clearly constitute dishonesty and misconduct. A lawyer should uphold the integrity and
dignity of the legal profession and refrain from any act or omission which might lessen
the trust and confidence reposed by the public in the fidelity honesty, and integrity of the
legal profession. Hence, Gerald should decline to draft the contract.
B. Yes, an administrative case against James will prosper.
Rule 1.01 of Code of Professional Responsibility provides that a lawyer shall not
engage in unlawful, dishonest, immoral or deceitful conduct. Rule 7.03 of the Code of
Professional Responsibility states that “a lawyer shall not engage in conduct that
adversely reflects on his fitness to practice law, nor shall he whether in public or private
life, behave in a scandalous manner to the discredit of the legal profession.
The affair between Julia and James constitute grossly immoral conduct and clearly
violates the Code of Professional responsibility that a lawyer should not engage in any immoral
conduct and his act clearly reflects on his fitness to practice law. Therefor an administrative
action against the latter will prosper.
James cannot assert the defense of in pari delicto principle because in a disbarment
proceeding, it is immaterial that the complainant is in in pari delicto, this is not a proceeding to
grant relief to the complainant, but one to purge the law profession of unworthy members, to
protect the public and the public and the courts.

C. No, the case will not prosper. The argument of Gerald that there is no lawyer-client
relationship is of no moment.

In the case of HADJULA vs. ATTY. MADIANDA that court held that A lawyer-client
relationship was established from the very first moment complainant asked respondent
for legal advise regarding the former’s business. To constitute professional employment,
it is not essential that the client employed the attorney professionally on any previous
occasion. It is not necessary that any retainer be paid, promised, or charged; neither is it
material that the attorney consulted did not afterward handle the case for which his
service had been sought. If a person, in respect to business affairs or troubles of any kind,
 consults a lawyer with a view to obtaining professional advice or assistance, and the
attorney voluntarily permits or acquiesces with the consultation, then the professional
employments is established. Likewise, a lawyer-client relationship exists notwithstanding
the close personal relationship between the lawyer and the complainant or the non-
payment of the former’s fees.

As to the privileged communication rule being violated is without merit. In the

case of Henato vs Atty. Silapan the suprecme court held that the the privilege against
disclosure of confidential communications or information is limited only to
communications which are legitimately and properly within the scope of a lawful
employment of a lawyer. It does not extend to those made in contemplation of a crime or
perpetration of a fraud. The act made in simulating the birth certificate constitute crime
and punishable under the law. Therefor the case against Gerald is without merit.

D. No, the argument of Gerald that that before he notarized the same contacted Julie via
phone and he was able to confirm that she voluntarily signed the contract and at that time
Julia was still in the hospital making it physically impossible for her to be at his office has no
merit.

Rules on Notarial Practice provides that A person shall not perform a notarial act if the
person involved as signatory to the instrument or document -

(1) is not in the notary's presence personally at the time of the notarization; and
(2) is not personally known to the notary public or otherwise identified by the notary public
through competent evidence of identity as defined by these Rules.

In the instant case Atty. Gerald notarize the document without the presence of Julia
personally and it clearly constitute violation of Notarial Practice law. Therefor Atty. Gerald
can be held liable.