Bar Exam 2018 Legal Ethics

The lawyer’s oath is a source of any lawyer’s obligations and its violation is a ground for the lawyer’s suspension, disbarment, or other disciplinary action. Without stating your name and other circumstances that will identify you, substantially write down the lawyer’s oath that a person who has passed the bar examinations is required to take and subscribe to before the Supreme Court. (5%)

SUGGESTED ANSWER:

I do solemnly swear that I will maintain allegiance to the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, or give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion, with all good fidelity as well to the courts as to my clients; and I impose upon myself these voluntary obligations without any mental reservation or purpose of evasion. So help me God.

II

In a complaint filed before the Integrated Bar of the Philippines (IBP) against Atty. Cirilo Celis, a senior citizen, it was shown that: a) he failed to pay his IBP dues for six (6) years; b) he indicated uniformly in his pleadings for three

consecutive years “IBP Muntinlupa OR No. 12345” as proof of payment of his IBP fees; and c) he did not indicate any Professional Tax Receipt number. to prove payment of his professional dues.

In his defense, Atty. Celis alleged that he is only engaged in a “limited” law practice, and his principal occupation, as disclosed in his income tax return, is that of a farmer of a 30-hectare orchard and pineapple farm in Camarines Sur. He also claimed that he believed in good faith that, as a senior citizen, he was exempt from payment of taxes, such as income tax, under Republic Act No. 7432 which grants senior citizens “exemption from the payment of individual income taxes provided that their annual taxable income does not exceed the poverty level as determined by the NEDA for that year.”

As a member of the IBP Board of Governors, decide on the following:

the validity of his claim that, being engaged in a limited practice of law and being a senior citizen who is exempt from the payment of taxes, he is not required to pay his IBP and professional dues; (2.5%)

SUGGESTED ANSWER:

In accordance with Sections 9 and 10, Rule 139-A, Atty. Celis can engage in the practice of law only by paying his IBP dues, and it does not matter that his practice is “limited”. While it is true that R.A. No. 7432, Sec. 4, grants senior citizen exemption from the payment of individual income taxes provide that their annual taxable income does not exceed the poverty level as determined by the National Economic and Development Authority (NEDA) for that year, the exemption does not include payment of membership or association dues, which is not a tax (Santos, Jr. vs. Llamas, 322 SCRA 529 [2000]).

the obligations, if any, under the Rules of Court and the Code of Professional Responsibility that Atty. Celis may have violated. (2.5%)

SUGGESTED ANSWER:

(b) Canon 7, Code of Professional Responsibility – A lawyer shall at all times uphold the integrity and dignity of the legal profession and support the activities of the integrated Bar.

Sec. 9, Rule 139 – A, Rules of Court. “Every member of the Integrated Bar shall pay such annual dues as the Board of Governors shall determine with the approval of the Supreme Court.”

Sec. 10, Rule 139-A, Rules of Court – “Subject to the provision of Section 12 of this Rule, default in the payment of annual dues for six months shall warrant suspension of members in the Integrated Bar, and default in such payment for one year shall be a ground for removal of the name of the delinquent member from the Roll of Attorneys.”

III

Carina was dismissed by her employer for breach of trust and confidence, and for willful violation of company rules and policies. She filed an action for illegal dismissal claiming that her termination was without legal basis. The Labor Arbiter found that she was illegally dismissed and awarded her the amount of PhP 80 million. On appeal to the National Labor Relations Commission (NLRC), the award was reduced to PhP 40 million as separation pay, plus PhP 5 million for the value of her stock option plans which would have vested if she were not illegally dismissed from her job. Unsatisfied with the NLRC’s decision, she appealed to the Court of Appeals (CA) the amount of monetary award granted by the NLRC. She engaged the services of Casal, Casos and Associates to handle her appeal. Her retainer agreement with Casal, Casos and Associates provided for contingent fees equivalent to 10% of her claim for separation pay and 10% of the value of stock options to be awarded to her.

The CA decision was not favorable to Carina, so she appealed the same to the Supreme Court (the Court). While the case was pending appeal with the Court, Carina entered into a compromise agreement with her employer to terminate the case upon payment to her of the full amount of PhP 40 million, less the PhP 15 million previously paid to her by her employer. Before the compromise agreement was finalized, Carina terminated the services of Casal, Casos and Associates and asked them to withdraw from the case pending before the Court. The parties negotiated the compromise agreement without the participation of their lawyers since the employer imposed the condition that no lawyers should be involved in the compromise negotiation. She, together with her employer, then filed the Compromise Agreement for approval by the Court, and sought the termination of the case, with prejudice.

Casal, Casos and Associates filed a motion to intervene in the case pending with the Court, praying that Carina be ordered to pay them PhP 4 million, representing 10% of the amount received by Carina from her employer in settlement of the case, plus 6% legal interest from the date of filing of the motion for intervention, until fully paid. The intervenors claimed that they were dismissed without justifiable cause prior to the signing of the compromise agreement for the reason that Carina, their client, wanted to evade payment of their legal fees. Carina claimed they were dismissed because Attys. Casal and Casos, who personally handled her case, had resigned from the law firm to join the government, and because of the negligence and failure of her lawyers to

attend to her case. In reply, the intervenors said that the engagement was with the law firm and not with individual lawyers. The law firm also presented letters signed by their client commending them for work done well in the case.

(a) May lawyers legally charge their clients based on contingent fees? (2.5%)

SUGGESTED ANSWER:

Yes, Rule 21.01 (h) of the Code of Professional Responsibility provides the contingency or certainty of compensation as one of the factors in determining fair and reasonable fees. A contingent fee is intended to enable a poor person to avail of the services of a lawyer to protect his rights or redress his grievances.

Should Casal, Casos and Associates be allowed to intervene in the case pending before the Court in order to collect their fees from Carina? (2.5%)

SUGGESTED ANSWER:

Yes. A lawyer is as much entitled to the judicial protection against injustice, imposition or fraud on the part of the client, as the client against abuse on the part of his counsel. Rule 16.03 of the Code of Professional Responsibility permits the registration of a lien although the lawyer concerned does not finish the case successfully in favor of his client, because “a lawyer who quits or is dismissed before the completion of his task is as much entitled to protection of the rule” (Palanca vs. Pecson, G.R. Nos. L-6334 and L-6346, February 25, 1954). He may enforce his right to his fees by a separate action or intervention in the same case he handled. The latter recourse is the better practice since the judge is already conversant with the nature and extent of his services.

Can Carina refuse to pay attorneys’ fees on the ground that the lawyers who personally handled her case had already resigned from the law firm with which she had contracted? (2.5%)

SUGGESTED ANSWER:

When a client engages a law firm to represent him, his contract is with a law firm and not with the individual lawyers. The resignation, illness or inability of some of their lawyers will not affect the ability of the law firm to continue its services. Certainly, it cannot be used to evade payment of attorneys’ fees due to the law firm.

May Carina’s employer, defendant in this case, be held solidarily liable with Carina for the payment of the attorneys’ fees of Carina’s lawyers? (2.5%)

SUGGESTED ANSWER:

If the evidence shows that the employer of Carina imposed the “no lawyers in the negotiation of the compromise agreement rule’ because of connivance in evading payment of Carina’s lawyers, then the defendant employer should be held solidarily liable in the payment of attorneys’ fees to Carina’s lawyers. When the other party to the case is also guilty of fraud in the payment of legal fees, he becomes a joint tortfeasor and should be held solidarily liable with Carina. By participating in the fraud, Carina’s employer also becomes liable even if Casals, Casos and Associates was hired only to represent Carina (Malvar v. Kraft Foods, G.R. 183952, Sepember 8, 2013).

May the intervenors collect legal interest in addition to their attorneys’ fees? (2.5%)

SUGGESTED ANSWER:

(e) Legal interest cannot be imposed on attorney’s fees. This is because even if parties are free to stipulate the amount of attorney’s fees, the payment of attorneys’ fees is different from ordinary obligations and contracts. The Civil Code provisions on payment of legal rate of interest in the event of default apply only to ordinary obligations and contracts (Bach v. Ongkiko Kalaw Manhit and Acorda Law Office, G.R. No. 160334, Sepember 11, 2006).

Atty. Cornelio Carbon, 36 years of age, had always dreamed of becoming a judge, and eventually, a justice, but his legal career took a different turn. Upon graduation, he joined a government-owned financial institution where he worked in the Loans and Claims Division. He also taught Negotiable Instruments Law in a nearby law school at night. He has been active in his IBP Chapter and other law organizations. However, in his 12 years of practice, he has never done trial or litigation work.

(a) Is Atty. Carbon engaged in the “practice of law”? (2.5%)

SUGGESTED ANSWER:

Yes, he is engaged in the practice of law, which has been defined as “any activity in or out of court which requires the application of law, legal procedure, knowledge, training and experience” (Cayetano v. Monsod, 201 SCRA 210 [1991]). Work in the government that requires the use of legal knowledge is considered practice of law (Lingan v. Calubaquib, 727 SCRA 355 [2014], Fajardo v. Alvarez, A.C. No. 9018, April 20, 2016). Lawyers who teach law are considered engaged in the practice of law (Re: Letter of the UP Law Faculty, A.M. No. 10-10-4-SC, March 8, 2011).

Is Atty. Carbon qualified to become a Regional Trial Court Judge? (2.5%)

SUGGESTED ANSWER:

(b) Yes, as long as he is a natural-born citizen of the Philippines, at least 35 years of age, and has practiced law or held public office requiring practice of law for at least 10 years. There is no requirement that he should have done actual trial or litigation work.

Carlos contracted two marriages: the first was with Consuelo, whom he left in the province, and the second was with Corinne in Manila, with whom he had six (6) children. Both women were unaware of Carlo’s marriage to the other.

When Carlos entered law school, he met Cristina, a classmate, to whom he confided his marital status. Not long after, Carlos and Cristina became involved in an extramarital affair, as a result of which Carlos left Corinne and their children. During Carlos and Cristina’s senior year in law school, Consuelo passed away. After their admission to the bar, Atty. Carlos and Atty. Cristina decided to get married in Hong Kong in a very private ceremony. When Corinne learned of Carlos and Cristina’s wedding in Hong Kong, she filed a disbarment case against Atty. Carlos and Atty. Cristina on the ground of gross immorality. Atty. Carlos and Atty. Cristina raised the following defenses:

the acts complained of took place before they were admitted to the bar; and

Atty. Carlos’ marriage to Corinne was void ab initio due to his subsisting first marriage with Consuelo, and they were free to marry after Consuelo died.

Rule on each defense. (2.5% each)

SUGGESTED ANSWERS:

It is not important that the acts complained of were committed before they were admitted to the bar. The possession of good moral character is both a condition precedent for admission to the bar and a continuing condition to remain a member of the legal profession. In the case of Garrido v. Garrido, (A.C. No. 6593, February 4, 2010), involving the same facts, the Supreme Court held as follows:

“Admission to the bar does not preclude a subsequent judicial inquiry, upon proper complaint, into any question concerning the mental or moral

fitness of the respondent before he became a lawyer. Admission to the practice only creates the rebuttable presumption that the applicant has all the qualifications to become a lawyer, this may be refuted by clear and convincing evidence to the contrary even after admission to the Bar.”

In the same Garrido case, the defense of the second marriage being void while the third marriage is valid, was also raised. The Supreme Court held as follows:

“While Atty. Valencia (third wife) contends that Atty. Garrido’s marriage with Maelotisea (second wife) was null and void, the fact remains that (s)he took a man away from a woman who bore him six (6) children. Ordinary decency would have required her to ward off Atty. Garrido’s advances, as he was a married man, in fact a twice-married man with both marriages subsisting at that time, she should have said no to Atty. Garrido from the very start. Instead, she continued her liaison with Atty. Garrido, driving him, upon the death of Constancia, away from legitimizing his relationship with Maelotisea and their children. Worse than this, because of Atty. Valencia’s presence and willingness, Atty. Garrido even left his second family and six children for a third marriage with her. This scenario smacks of immorality even if viewed outside of the prism of law.

We are not unmindful of Atty. Valencia’s expressed belief that Atty. Garrido’s second marriage to Maelotisea was invalid, hence, she felt free to marry Atty. Garrido. While this may be correct in the strict legal sense and was later on confirmed by the declaration of the nullity of Atty. Garrido’s marriage to Maelotisea, we do not believe at all in the honesty of this expressed belief.”

Mrs. Conchita Conchu engaged the services of Atty. Carlo Colorado to act as private prosecutor to handle a criminal case against persons suspected of slaying her husband. Atty. Colorado performed his duties -he interviewed witnesses to build up his case and rel igiously attended hearings. However, he failed to attend one hearing (allegedly because he did not receive a notice) in which the court, over Mrs. Conchu’s objections, granted bail to all the accused. Mrs. Conchu belligerently confronted Atty. Colorado about his absence. Stung by Mrs. Conchu’s words, Atty. Colorado filed with the court a “Motion to Withdraw as Counsel”. The motion did not bear the consent of Mrs. Conchu, as in fact, Mrs. Conchu refused to sign her conformity to Atty. Colorado’s withdrawal. Meanwhile, the hearing in the criminal case continued, but Atty. Colorado no longer appeared at the hearings nor did he contact Mrs. Conchu. Mrs. Conchu then filed a complaint seeking disciplinary sanctions against Atty. Colorado. Atty. Colorado cited “loss of confidence” and “serious differences” with the client as his reasons for withdrawing his services unilaterally.

Can Atty. Colorado be sanctioned for his actions? (2.5%)

SUGGESTED ANSWER:

Atty. Colorado can be sanctioned for his actions. Under the Rules of Court, an attorney who undertakes to conduct an action impliedly stipulates to carry it to its conclusion. He is not at liberty to abandon it without reasonable cause. A lawyer’s right to withdraw from a case before its final adjudication arises only from the client’s written consent or from the court’s approval of his motion to withdraw based on a good cause. Furthermore, being an officer of the court in whose favor a lawyer owes the duty to assist in administering justice, he may not withdraw or be permitted to withdraw as counsel in a case if such withdrawal will work injustice to a client or frustrate the ends of justice (Orcino v. Gaspar, 279 SCRA 479 [1997]).

VII

Atty. Celso Casis’ relationship with Miss Cory Cerrada began when he represented her in several criminal cases for estafa and violation of B.P. 22. His expertise and diligence in personally assisting and facilitating her release on bail and other legal actions saved her from many legal predicaments. Despite her initial resistance, Miss Cerrada, convinced by Atty. Casis’ sincerity and representation that he was separated from his wife and was taking necessary steps for the annulment of his marriage, began to live with him openly as husband and wife. One day, Atty. Casis’ wife suddenly entered Miss Cerrada’s home and assaulted her, inflicting injuries. Miss Cerrada then filed a complaint with the IBP charging Atty. Casis with gross immorality and gross misconduct. However, shortly afterwards, upon Atty. Casis’ pleas, Miss Cerrada filed a motion to withdraw the complaint. The IBP had required Atty. Casis to file an answer but he did not do so, relying on Miss Cerrada’s withdrawal of the complaint against him. Can the IBP continue to investigate Atty. Casis and recommend the imposition of sanctions against him, and for the Court to impose sanctions, if warranted, notwithstanding Miss Cerrada’s filing of the motion to withdraw the complaint against him? (2.5%)

SUGGESTED ANSWER:

Yes. The IBP can continue to investigate Atty. Casis. A disbarment proceeding is sui generis, neither a civil or a criminal action. Not being a civil action, the complainant is not a plaintiff nor the respondent a defendant. It involves no private interest and affords no redress for private grievances. A disciplinary action is in reality an investigation by the court into the misconduct of its officer or an examination into his character. Desistance or withdrawal of the disbarment case does not exonerate the respondent. If the evidence on record warrants, the respondent may be suspended or disbarred despite the deistance of the complainant or his withdrawal of the charges (Rayos-Ombac v. Rayos, 285 SCRA 93[1998]).

VIII

Judge Celso Camarin posted in the bulletin board of his sala for two weeks, an advertisement which says: “Wanted attractive waitresses, personable waiters and cooks who may be interested in applying for employment in my family’s restaurant business. Interested applicants may submit applications to Branch XXX, RTC of Camarines Sur.” The screening of some applicants was also conducted in the Judge’s office. What provisions, if any, of the Code of Judicial Conduct did Judge Camarin violate? (2.5%)

SUGGESTED ANSWER:

In the case of Dionisio vs. Escano, 302 SCRA 411, February 1, 1999, involving the same facts, the Supreme Court found the erring judge to have violated the following rules of the Code of Judicial Ethics.

Canon 11, Rule 2.00 – A Judge should avoid impropriety and the appearance of impropriety in all activities.

Canon 5, Rule 5.02 – A judge refrain from financial and business dealings that tend to reflect adversely on the court’s impartiality, interfere with the proper performance of judicial activities, or increase involvement with lawyers or persons likely to come before the court. A Judge should so manage investments and other financial interest to minimize the number of case giving grounds for disqualification, and if necessary divest such investment and interests. Divestment shall be made within one year from the effectivity of this Code or from appointment, as the case may be.

Rule 5.03 – Subject to the provisions of the preceding rule, a judge may hold and manage investment but should not serve as an office, director, advisor, or employee of any business except as director, or non-legal consultant of a family business.

The corresponding provisions of the New Code of Judicial Conduct for the Philippine Judiciary would be:

Canon 4, Section 1 – Judges shall avoid impropriety and the appearance of impropriety in all their activities.

Section 7 – Judges shall inform themselves about their personal fiduciary financial interests and shall make reasonable efforts to be informed about the financial interest of the members of their family.

Section 8 – Judges shall not use or lend the prestige of the judicial office to advance their private interest, or of those of any member of their family or of anyone else, no shall they convey or permit others to convey the impression that anyone is in special position to influence them in the performance of their judicial duties.

In a case pending before the Sandiganbayan, the Sandiganbayan justices themselves actually took part in the questioning of a defense witness and the accused. The records show that, while a witness was asked 16 questions on direct examination by the defense counsel and six (6) questions by the prosecutor on cross-examination, one justice interjected a total of 27 questions. After the defense opted not to conduct any re-direct examination, another justice asked 10 more questions. With respect to one of the accused, both justices asked a total of 67 questions after cross-examination, and with respect to the other accused, a total of 41 questions after cross-examination. More importantly, the questions of the justices were in the nature of cross-examinations characteristic of confrontation, probing, and insinuation.

Is this manner of questioning proper? (5%)

SUGGESTED ANSWER:

“This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon any material point which presents itself during the trial of a case over which he presides. But not only should his examination be limited to asking “clarificatory” questions, the right should be sparingly and judiciously used, for the rule is that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct of the trial. Here, these limitations were not observed. Hardly in fact can one avoid the impression that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the case against Tabuena and Peralta when the Justices cross- examined the witnesses, their cross-examination supplementing those made by Prosecutor Viernes and far exceeding the latter’s questions in length. The “cold neutrality of an impartial judge” requirement of due process was certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual rule of magistrate and advocate” (Tabuena v. Sandiganbayan, 268 SCRA 332 [1997]).

In a complaint for disbarment, Connie alleged that she engaged the services of Atty. Cesar Corpuz in the preparation and execution in her favor of a Deed of Sale over a parcel of land from her common-law husband. Subsequently, Atty. Corpuz filed a civil case on behalf of Constancia, the legal wife of Connie’s common-law husband, for the annulment of the Deed of Sale, impleading Connie as defendant.

In his defense, Atty. Corpuz asserted that, with the permission of Constancia, he wrote a letter to Connie informing the latter of Constancia’s adverse claim and urging her to settle the same, but Connie ignored his letter. He also said that Connie did not object to his handling of the case on behalf of Constancia; and therefore, he felt free to file the complaint against her. Is Atty. Corpuz guilty of misconduct for representing conflicting interests? (5%)

SUGGESTED ANSWER:

Canon 15 of the Code of Professional Responsibility provides that a lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts. Atty. Corpuz was clearly guilty of misconduct for representing conflicting interests. Not only did Atty. Corpuz agree to represent one client against another client in the same action, he also accepted a new engagement that required him to oppose the interest of his other client in a property in which his legal service had been previously retained. Atty. Corpuz did not qualify for the exception under Canon 15. He did not make a full disclosure of facts to Connie and Constancia before he accepted the new engagement from Constancia. He failed to obtain the written consent of his two clients as required under Canon 15 (Josefina M. Aniñon v. Atty. Clemencio Sabitsana, Jr., A.C. No. 5098, April 11, 2012).

Atty. Claire Cortez, a member of the Philippine Bar who was also admitted to the New York Bar, was disbarred from the practice of law in New York for violation of Anti-Money Laundering laws of that State. She returned to the Philippines in order to resume her Philippine law practice.

Can she also be disbarred from practicing law in the Philippines for the same infraction committed in the foreign jurisdiction? (5%)

SUGGESTED ANSWER:

Yes, she can, if the ground for which she was disbarred in New York is also a ground for disbarment in the Philippines. But she is entitled to due process and she can be disbarred here only after notice and hearing. The disbarment decision in New York will only constitute prima facie evidence of her guilt (In re: Maquera 435 SCRA 417 [2004]).

XII

From February to November 2004, Atty. Calumpang, in fraudulent connivance with brokers, convinced Corinna to deliver to him advance money for the titling of a beachfront property in Caramoan. Six months had elapsed and

Atty. Calumpang had made absolutely no progress in the titling of the land. He also could not return the advance money paid by Corinna because he had converted the money to his personal use. After almost a decade, and the property could still not be titled in Corinna’s name, she filed an action with the

Commission on Bar Discipline (CBD) in 2014 for deceit, malpractice, and conduct unbecoming of a member of the Bar. In his defense, Atty. Calumpang asserted that, since the acts complained of took place more than 10 years ago, the case had already prescribed.

Rule on the defense of Atty. Calumpang. (5%)

SUGGESTED ANSWER:

A disbarment proceeding is imprescriptible. Unlike other proceedings, it is not subject to the defense of prescription. The ordinary statutes of limitations have no application to disbarment proceedings (Calo v. Degamo, 20 SCRA 1162 [1967], Frias v. Bautista-Lozada, 489 SCRA 349 [2006], Heck v. Santos, 423 SCRA 329 [2004]). However, an unexplained long delay in the filing of an administrative case creates suspicion on the motives of the complainant (Salamanca v. Bautista, 8 SCRA 459 [1963], Valdez v. Valera, 81 SCRA 246 [2015]).

XIII

Dr. Cielo is a well-known medical doctor specializing in cosmetic surgery. Dr. Cielo, together with a team of doctors, performed a surgical buttocks enhancement procedure in her clinic on Ms. Cossette Concio (Concio). Unfortunately, after a couple of years, the implant introduced during the enhancement procedure caused infection and Concio became seriously ill.

Concio filed a criminal action for medical malpractice against Dr. Cielo which was eventually dismissed for failure to prove that Dr. Cielo was negligent. Concio was represented in this action by Atty. Cogie Ciguerra (Ciguerra). After they lost the medical malpractice case, Ciguerra started writing a series of posts on his Facebook (FB) account containing insulting and verbally abuse language against Dr. Cielo. Among others, Ciguerra called Dr. Cielo a quack doctor, “reyna ng kaplastikan at kapalpakan”, and accused her of maintaining a payola or extra-legal budget to pay off prosecutors and judges in order to win her cases. He also called on patients to boycott the clinic of Dr. Cielo.

Dr. Cielo filed a disbarment case against Ciguerra for posting on his FB account, sexist, vulgar, and obscene comments, and language disrespectful of women in his FB posts. Ciguerra’s defense is that his FB posts were private remarks on his private FB account and only meant to be shared among his FB friends, and Dr. Cielo was not part of them. He also claimed that the disbarment case was filed in violation of his constitutionally-guaranteed right to privacy. The Court, however, found that Ciguerra’s FB account did not have privacy settings.

Can Ciguerra be disbarred for the series of posts in his FB account against Dr. Cielo? (5%)

SUGGESTED ANSWER:

Yes. In the case of Ma. Victoria G. Belo-Henares v. Atty. Roberto “Argee” C. Guevarra, A.C. No. 1394, December 1, 2016, involving the same facts, the Supreme Court, the Supreme Court, first of all debunked the respondent lawyer’s defense of privacy by pointing out that he failed to prove that he used the privacy tools of Facebook to limit his messages to his “friend”. Even if he did so there is no guarantee that his friends will not pass on his messages to their friends.

With regard to the defense of freedom of speech, the Supreme Court ruled:

“Time and again, it has been held that the freedom of speech and of expression, like all constitutional freedoms, is not absolute. While the freedom of expression and the right of speech and of the press are among the most zealously protected rights in the Constitution, every person exercising them, as the Civil Code stresses, is obliged to act with justice, give everyone his due, and observe honesty and good faith. As such, the constitutional right of freedom of expression may not be availed of to broadcast lies, half-truths, insult others, destroy their names, reputation of bring them into disrepute”.

XIV

Cacai, a law student, filed an administrative complaint against RTC Judge Casimiro Conde, her professor in law school, based on the following allegations:

In a school convocation where Judge Conde was the guest speaker, Judge Conde openly disagreed and criticized a recently-decided Supreme Court decision and even stressed that the decision of the Supreme Court in that case was a serious violation of the Constitution.

In his class discussions, Judge Conde named Cacai’s mother, an MTC judge, as one of the judges involved in a marriage scam. At that time, the case against her mother was still pending. Judge Conde also included in his class discussion Cacai’s brother whom he referred to as a “court-noted drug addict.”

Cacai asserted that the acts of Judge Conde were open displays of insensitivity, impropriety, and lack of delicadeza bordering on oppressive and abusive conduct. She also alleged that Judge Conde acted with absolute disrespect for the Court and violated the “subjudice rule” when he discussed the marriage scam involving her mother because, at that time, the case was still pending.

In his defense, Judge Conde argued that the case he discussed in the school convocation was already of public knowledge and had been published after it had become final. He also said it was part of his academic freedom to openly discuss and criticize a decision of the Court since it was already decided with finality, was patently erroneous, and clearly a violation of the Constitution. With respect to discussions in class about Cacai’s mother, he said that the marriage scam where her mother was charged scandalized the Judiciary and became public knowledge when the Office of the Court Administrator held a press conference on the matter and, that as a citizen, he could comment thereon in the exercise of his rights to freedom of speech and expression. He also asserted that his discussions in both fora could not be the subject of an administrative complaint because they were not done in the performance of his judicial duties.

Rule on each of the charges raised by Cacai, and the corresponding defenses raised by Judge Conde. (2.5% each)

SUGGESTED ANSWERS:

The New Code of Judicial Conduct provides that judges, like any other citizens, are entitled to freedom of expressions, belief, association and assembly, but in exercising such right, they shall always conduct themselves in such a manner as to preserve the dignity of the judicial office and the impartiality of the judiciary. Judge Conde, however, should not have criticized in public the Supreme Court decision as a serious violation of the Constitution. He should have avoided any discussion in order to preserve the traditional non-involvement of the judiciary in public discussion of controversial issues (In re: Query of the MTC Lawyers of Zamboanga del Norte, A.M. No. 86-11-3690).

Judge Conde is guilty of conduct unbecoming of a judge in using intemperate language and unnecessary comments tending to project Cacai’s mother as a corrupt and ignorant judge and her brother as a drug addict (in his class discussion). While the Code of Judicial Conduct recognizes the right of judges to freedom of expression, this freedom should be exercised in a manner that would preserve the dignity, independence and respect for himself and judiciary as a whole. A magistrate should not descend to the level of a sharp-tongued, ill-mannered petty tyrant by uttering harsh words, snide remarks and sarcastic comments. Judge Conde can be held administratively liable even though his improper comments were made in his class discussions because ethical conduct is expected of him as a judge not only in the performance of his judicial duties, but in his professional and private activities as well. A judge, in order to promote public confidence in the integrity and impartiality of the judiciary, must behave with propriety at all times. A judge’s official life cannot be detached or separated from his personal existence. Judge Conde also violated the subjudice rule which restricts comments and disclosures pertaining to judicial proceedings in order to avoid obstructing the administration of justice. At the time Judge Conde discussed the marriage scam, the case was still pending (Tormis v Paredes, A.M. No. RTJ-13- 2366, February 4, 2015).

Charo Conti engaged the services of Atty. Cesar Compostela for the registration of a property located in Cebu, and which property she had inherited together with her siblings. It was agreed in writing that Charo would pay Atty. Compostela PhP 20,000 as acceptance fee and PhP 2,000 as appearance fee. During the last hearing of the case, Atty. Compostela demanded an additional amount of PhP 20,000 for the preparation of a memorandum, which he said would further strengthen Charo’s position, plus 20% of the total area of the property as additional fees for his services. Charo did not agree to Atty. Compostela’s demands since they were contrary to their agreement. Besides, the property was co-owned with her siblings and she could not agree to Atty. Compostela’s demands without the consent of her co-heirs.

Four (4) years later, the petition for registration was approved and the Land Registration Authority notified Charo that the decree of registration and the original of the owner’s duplicate copy of the title had already been transmitted to the Register of Deeds (RD). When Charo went to the RD, she was surprised to discover that the owner’s duplicate copy of the title had already been claimed by, and released to, Atty. Compostela. Despite demand, Atty. Compostela refused to deliver the title to Charo until she paid the additional attorneys’ fees that he was demanding. Charo then instituted a complaint for disbarment against him. In his defense, Atty. Compostela claimed that:

he had a right to retain the owner’s duplicate of the title as his retaining lien; and

he was entitled to the payment of additional professional fees on the basis of the principle of quantum meruit.

Rule on Atty. Compostela’s defenses. (2.5% each)

SUGGESTED ANSWER:

A lawyer has a right to retaining lien only of there is an agreement as to the amount his fees. In this case, there is no agreement as to Atty. Copmpostela’s claim for additional fees. In fact, the client is opposed to the lawyer’s proposal for such additional fees.
A lawyer is entitled to fees on the basis of quantum meruit only in the following cases:
- There is no agreement between the lawyer and the client as to the former’s fees;
- There is an agreement but it is void;
- There is an agreement but it has been set aside by the parties themselves;
- There is an agreement but the court has set it aside because it found the fees to be unconscionable;
- There is an agreement but the services of the lawyer were terminated by the client for just cause.

None of these instances exist in this case. Atty. Compostela is not entitled to additional fees on the basis of quantum meruit.

XVI

On March 1, 2017, sisters and business partners Carmina and Celeste Corominas borrowed PhP 500,000 from Carmen Carunungan. It was agreed that the amount will be paid in full one year after, or on March 1, 2018, with interest at the rate of 10% per annum, without necessity of a demand. They also agreed to be bound jointly and severally. For this purpose, they executed a promissory note, secured by a postdated check in the amount of PhP 550,000 drawn from their joint account, which check was dated March 1, 2018.

When the debt became due, Carmen deposited the check but it was dishonored for insufficient funds. Carmen then sued Carmina and Celeste for estafa through falsification of a commercial document. After finding probable cause, the prosecutor filed a criminal case in court, where the sisters were required to file their joint Judicial Affidavit. In their affidavit, they raised the defense that they could not be guilty of estafa because: (i) the check was issued only as a form of security; (ii) even if issued as payment, it was for a pre-existing debt; and (iii) it was only upon Carmen’s insistence that they issued the check.

Before the case could be decided, the sisters offered to settle their debt through a dacion en pago. They offered a Honda CRV which they jointly owned in full settlement of the loan. Carmen agreed.

Prepare the following documents in legally acceptable and enforceable forms, based on the above facts:

(a) The Promissory Note (5%);

SUGGESTED ANSWER:

Promissory Note

“ For value received, We jointly and severally promise to pay Carmen Carunungan or order the sum of Five Hundred Thousand Pesos (P500,000.00), with interest thereon at 10% per annum, on or before March 1, 2018, without necessity of demand.

To secure payment, we attach herewith Bank Check No. in the amount of P550,000.00, postdated March 1, 2018, and payable to Carmen Carunungan.

Manila, March 1, 2017.

(Sgd.) Carmina Corominas (Sgd.) Celeste Corominas

The Judicial Affidavit (10%); and

SUGGESTED ANSWER:

Republic of the Philippines ) Metropolitan Manila ) s.s

City of )

JOINT JUDICIAL AFFIDAVIT

OF CARMINA COROMINAS and CELESTE COROMINAS

WE, CARMINA COROMINAS and CELESTE

COROMINAS, of legal age and residents of

, after having been duly sworn, hereby depose and state:

PRELIMINARY STATEMENT

We are being examined by Atty. “A” with address at

. The examination is being held at

in the presence of ABC. WE are answering the questions fully conscious that WE do so under oath and may face criminal liability for false testimony.

Questions and Answers

Q1. Please state your name and other personal circumstances. A1. WE are CARMINA COROMINAS and CELESTE

COROMINAS both of legal age, single and residents of

Q2. Why are you executing this Judicial Affidavit?

A2. We are executing this Judicial Affidavit to support our defenses in the criminal case of estafa filed against us.

Q3. Why were you charged with such case?

A3. We were charged with estafa because we issued a check in favor of Carmen Carunungan which eventually bounced for insufficient funds.

Q4. In answer to Q2, you mentioned that you are executing this Judicial Affidavit to support your defenses in the criminal case of estafa filed against you. Why do you believe you are not guilty?

A4. We are not guilty because of the following reasons:

the check was issued only as a form of security;
1. Even if issued as payment, it was for a pre-existing debt, and
1. It was only upon the Carmen Carunungan’s insistence that We issued the check.

Q5. Is there anything else you want to add to the above? A5. No more sir.

AFFIANTS FURTHER SAYETH NAUGHT.

Manila, November , 2018.

CARMINA COROMINAS CELESTE COROMINAS

Affiant Affiant

Witnesses:

ABC

ATTESTATION

I, Atty. “A” with office address at do hereby attest as follows:

I personally conducted the examination of Carmina Corominas and Celeste Corominas in question and answer form.
I faithfully recorded the questions asked Carmina Corominas and Celeste Corominas and the corresponding answers they gave, and

Neither I nor any other person then present coached Carmina Corominas and Celeste Corominas regarding their answers.

IN WITNESS WHEREOF, I hereunto affixed my signature this day of November 2018 at .

Atty. “A” Address

IBP OR No. place and date of issuance PTR OR No. place and date of payment MCLE Exemption

Date of Issue Valid until

JURAT

SUBSCRIBED AND SWORN TO BEFORE ME this

day of November 2018 at , affiants Carmina Corominas, Celeste Corominas exhibiting to me their competent evidence of identity, consisting of a Driver’s License No. expiring on , and a Driver’s License No. expiring on , respectively, and affiant Atty. “A”, with Voter’s ID issued by the Commission on Elections on .

WITNESS MY HAND AND SEAL.

Notary Public

Doc. No. ; Page No. ; Book No. ; Series of 2018.

The Dacion en Pago (10%).

Bar Exam 2018 Legal Ethics

II

III

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