CANON 12 1.

On June 28, 2001, RJ filed with the Supreme Court a petition for prohibition, with a prayer for a temporary restraining order/preliminary injunction, to forestall his removal as chairman and general manager of a government agency. He believed he had a fixed term until January 31, 2004, but there were indications that the new President would replace him. As he had apprehended, an Administrative Order was issued by the Chief Executive on July 2, 2001 recalling RJs appointment. Shortly, thereafter, PT was appointed to the position in question. On July 3, 2001, RJ filed a motion to withdraw his petition. On the same day, without waiting for the resolution of his motion, he filed another petition with the RTC seeking to prevent his removal as chairman and general manager of the government agency. On July 8, 2001, his motion to withdraw the first petition was granted by the SC without prejudice to his liability, if any, for contempt for engaging in forum-shopping. A. Is he guilty of forum-shopping? Explain. B. Give three (3) instances of forum-shopping. (2002 Bar) Answer: A. RJ is guilty of forum-shopping. Forum-shopping is the practice of filing multiple actions from the same cause of actions (Rule 12.02). It is clear that RJs petition for prohibition was still pending in the SC when he filed the same petition in the RTC. He should have waited first for the resolution of his motion to withdraw before filing the second petition because he cannot assume that the motion will be granted. B. Instances of forum-shopping: (1) When, as a result of an adverse opinion in one forum, a party seeks a favourable opinion (other than by appeal or certiorari) in another. (2) When he institutes two or more actions or proceedings grounded on the same cause, on the gamble that one or the other court would make a favourable disposition. (3) Filing a second suit in a court without jurisdiction. (4) Filing an action in court while the same cause of action is still pending in an administrative proceeding. (5) When counsel omits to disclose the pendency of an appeal, in filing a certiorari case. 2. What is your understanding of forum-shopping? What are the possible consequences? (1998 Bar) Answer: Forum-shopping is the improper practice of filing several actions or petitions in the same or different tribunals arising from the same cause and seeking substantially identical reliefs in the hope of winning in one of them. The possible consequences of forum-shopping are: (1) Summary dismissal of the multiple petition or complaint (2) Penalty for direct contempt of court on the party and his lawyer (3) Criminal action for a false certification of non-forum shopping (4) Disciplinary proceeding for the lawyer concerned (Sec. 5, Rule 7, 1997 Rules of Civil Procedure) 3. J sustained serious physical injuries due to a motor vehicle collision between the car she was driving and a public utility bus, requiring her confinement for 30 days at the Makati Medical Center. After her release from the hospital, she filed a criminal complaint against the bus driver for serious physical injuries through reckless imprudence before the Makati Prosecutors Office. She also filed a civil complaint before the Paranaque RTC against the bus operator and driver for compensatory, moral, exemplary and other damages. Aside from the two complaints, she additionally filed an administrative complaint against the bus operator with the LTFRB for 1

cancellation or suspension of the operators franchise. Would you say that she and her lawyer were guilty of forum-shopping? (1997 Bar) Answer: No. There is no forum-shopping in the simultaneous filing of a criminal case and a civil case in this instance. Article 33 of the Civil Code allows the filing by an injured party of a civil action for damages entirely separate and distinct from the criminal action in cases of defamation, fraud, and physical injuries. There is also no forum-shopping involved in filing an administrative complaint against the bus operator with the LTFRB. It is for a different cause of action, the cancellation or suspension of the operators franchise. 4. A lawyer is defending a widow in an ejectment suit. Judgment against the widow has become final. To delay execution in order to gain time for the widow to find a rentable place within her financial means, the lawyer filed a series of petitions in Court. A. Explain why the lawyer may be held accountable for his conduct as being: i) in contempt of Court; and, ii) in violation of ethical duty. B. What major current problem in the administration of justice is bound to be aggravated by conduct such as that of the lawyer in this case? Explain. (1980 Bar) Answer: A. The facts of the question is similar to the ruling in Castaneda vs. Ago where the respondents with the assistance of counsel, manoeuvred for 14 years to doggedly resist execution of judgment. Thru a series of petitions from one court to another. The SC condemned the attitude of the respondents and their counsel. According to the Court, far from viewing courts as sanctuaries for those who seek justice, have tried to use them to subvert the very ends of justice. The lawyer can be held in contempt for violation of his sworn duty to uphold the case of justice which is superior to the duty of his client. B. The major problem in the administration of justice is the clogging of court dockets and in terminable delays in the disposition of cases would be obstructed. 5. Is it proper for a lawyer to give testimony of is client in a case which he is appearing as counsel? Discuss briefly. (1968 Bar) Answer: No. As expressly stated in Rule 12.08 of the CPR: A lawyer shall avoid testifying in behalf of his client, except: a) on formal matters, such as the mailing, authentication or custody of an instrument, and the like, or, b) on substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel. 6. A car driven by Carlos, with his lawyer friend, Atty. Lazaro, as passenger, collided with another vehicle at a street intersection. Sued by the owner of the other vehicle, Carlos asked Atty. Lazaro to be his counsel in the case and, at the same time, a witness for him to testify on the degree of care with which he (Carlos) was driving when the collision took place. Atty. Lazaro, in reply, informed Carlos that professional ethics would not allow him to assume the dual role of trial counsel and witness in the case. A. If Carlos had asked, why not? how would you have explained it if you were Atty. Lazaro? B. Assuming no other witness could be found, would it have been proper for Atty. Lazaro to accede to the request? (1980 Bar)

Answer: A. While there is no statutory restriction for a lawyer to be an advocate and a witness for a client in a case, the ethics of the profession forbids him from acting in that double capacity as he will find it difficult to disassociate his relation to the client as a lawyer and his relation to the litigants as witness. An attorney may not, therefore, accept employment in any matter in which he knows or has reason to know that he will be as essential witness for the prospective client. B. If there is no other witness to be found, it is still improper for Atty. Lazaro to accede to the request. The proper move for Atty. Lazaro is to request the client to engage another counsel so he can be a witness in the case. The underlying reason for the impropriety of a lawyer acting dual capacity lies in the difference between the respective functions of a witness and an advocate. The function of a witness is to tell the facts as he recalls them in answer to questions. The function of an advocate is that of a partisan. It is difficult to distinguish between the zeal of an advocate and the fairness and impartiality of a disinterested witness. The lawyer will find it hard to disassociate his relation to his client as an attorney and his relation to party as witness. Even if he can actually do so, the dual relationship would invite embarrassing criticism. 7. (MCQ) On which of the following is a lawyer proscribed from testifying as a witness in a case he is handling for a client. (2005 Bar) a. On the mailing of documents; b. On the authentication or custody of any instrument; c. On the theory of the case; d. On substantial matters in cases where his testimony is essential to the ends of justice. Answer: (c) The lawyer is proscribed from testifying on the theory of the case he is handling as a witness for his client 8. As a rule, why should an attorney not testify as a witness for his client? (2001 Bar) Answer: The underlying reason for the impropriety of a lawyer acting dual capacity lies in the difference between the respective functions of a witness and an advocate. The function of a witness is to tell the facts as he recalls them in answer to questions. The function of an advocate is that of a partisan. It is difficult to distinguish between the zeal of an advocate and the fairness and impartiality of a disinterested witness. The lawyer will find it hard to disassociate his relation to his client as an attorney and his relation to party as witness. CANON 13 1. May a lawyer talk privately to a Judge regarding the merits of a case pending before the said Judge? Explain briefly. (1974 Bar) Answer: No because it will be violative of Canon 13 of the CPR which states that: A lawyer shall rely upon the merits of the cause and refrain from any impropriety which tends to influence or gives the appearance of influencing the court.

2. Atty. A is the legal counsel of Ang Manggagawa, a labor union whose case is pending before the CA. In order to press for the early resolution of their case, the union officers decided to stage a demonstration in front of the CA, which Atty. A, when consulted, approved of, saying that it was their constitutional right to peaceably assemble and petition the government for redress of their grievances and for the speedy disposition of their cases before all judicial, quasijudicial or administrative bodies. Is it appropriate for Atty. A to give that advice to the union officers? Explain. (2003 Bar) Answer: The advice of Atty. A is not proper. In the case of Nestle Phils. Inc. vs. Sanchez, the SC held that picketing before a court are attempts to pressure or influence the courts of justice and constitute contempt of court. The duty of advising the picketers and their leaders lies heavily on their lawyers. 3. Atty. A is offered professional engagement to appear before Judge B who is As relative, compadre and former office colleague. Is A ethically compelled to refuse the engagement? Why? (2001 Bar) Answer: A lawyer shall rely upon the merits of the cause and refrain from any impropriety which tends to influence or gives the appearance of influencing the court (Canon 13). There is no ethical constraint against a lawyer appearing before a judge who is a relative, compadre or former office colleague as long as the lawyer avoids giving the impression that he can influence the judge. On the other hand, the judge is required by the Code of Judicial Conduct not to take part in any proceeding where his impartiality may be reasonably questioned. Among the grounds for mandatory disqualification of the judge is if any of the lawyers is a relative by consanguinity or affinity within the fourth degree. 4. Atty. J requested Judge K to be a principal sponsor at the wedding of his son. Atty. J met Judge K a month before during the IBP-sponsored reception to welcome Judge K into the community, and having learned that Judge K takes his breakfast at a coffee shop near his boarding house. Atty. J made it a point to be at the coffee shop at about the time that Judge K takes his breakfast. Comment on Atty. Js acts. Do they violate the CPR? (2000 bar) Answer: Yes, his actions violate the CPR. Canon 13 provides that a lawyer shall rely upon the merits of the cause and refrain from any impropriety which tends to influence or gives the appearance of influencing the court. Rule 13.01 also provides that a lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for, cultivating familiarity with judges. Atty. J obviously sought opportunity for cultivating familiarity with Judge K by being at the coffee shop where the latter regularly takes his breakfast, and is extending extraordinary attention to the judge by inviting him to be a principal sponsor at the wedding of his son. 5. Dumbledore, a noted professor of commercial law, wrote an article on the subject of letters of credit which was published in the IBP Journal. A. 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. B. 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 Journal article, dissecting the decision and explaining why the Supreme Court erred in all its conclusions. May he be sanctioned by the Supreme Court? Explain. (2008 Bar)

Answer: A. Yes, because he will violate Rule 13.02 which states 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. B. This time, he cannot be sanctioned because what he did was a commentary to a decided case and not to a pending case. Hence, there is no violation of the CPR.

6. As a defense counsel for the accused in a sensational case for abduction which the media is covering, you are fully convinced from the judge actuations that he is biased against your client. You are asked to comment on the proceedings and the judges conduct. How should you react on the matter? (2003 Bar) Answer: I will decline to give any comment. Rule 13.02 of the CPR 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. 7. When is public comment and criticism of a court permissible and when would it be improper? (1997 Bar) Answer: A lawyer, like every citizen, enjoys the right to comment on and criticize the decision of a court. As an officer of the court, a lawyer is expected not only to exercise that right but also to consider it his duty to expose the shortcomings and indiscretions of courts and judges. But such right is subject to the limitations that it shall be bona fide. It is proper to criticize the courts and judges, but it is improper to subject them to abuse and slander, degrade them or destroy public confidence in them. Moreover, a lawyer shall not attribute to a Judge motives not supported by the record or have no materiality in the case (Rule 11.04).