1.

What is a counsel de officio

WHAT IS A COUNSEL DE OFFICIO?

> A counsel de officio is the counsel appointed by the court to represent and defend the
accused in case he cannot afford to employ one himself

WHO CAN BE APPOINTED COUNSEL DE OFFICIO?

> The court, considering the gravity of the offense and the difficulty of the questions that may arise
shall appoint as counsel de officio
1. A member of the bar in good standing
2. And such member, by reason of his/her experience and ability, can competently defend the
accused
> ONLY DURING TRIAL: But, in localities where such members of the bar are not available, the
court may appoint any person who
is—
1. A resident of the province
2. And of good repute for probity and with ability to defend the accused

The court considers the following in the appointment of a counsel de oficio:

(1) Gravity of the offense;

(2) Difficulty of the questions that may arise;

(3) Experience and ability of the appointee.

Valid grounds for refusal

Rule 14.03. A lawyer may not refuse to accept representation of an indigent client unless:

a. He is in no position to carry out the work effectively or competently;

b. He labors under a conflict of interest between him and the prospective client or between a present
client and the prospective client.

Services as counsel de officio (1991, 1996, 1994, 1993)

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Q: May a lawyer decline an appointment by the court as counsel de oficio for an accused because
he believes, and is fully convinced that the accused is guilty of the crime charged? (1991 Bar)

A: A lawyer may not decline an appointment as counsel de oficio even if he is convinced

that the accused is guilty. It is his obligation to at least protect his rights. He might even have
him acquitted or at least reduce his penalty depending on the evidence presented during the trial.

CHOICE OF COUNSEL: A CRIMINAL COMPLAINT WAS FILED AGAINST BERMAS FOR THE CRIME OF
RAPE. THE SECOND ASSISTANT PROSECUTOR ISSUED A CERTIFICATION THAT THE ACCUSED HAS
WAIVED HIS RIGHT TO PRELIMINARY INVESTIGATION. ON THE DAY OF THE SCHEDULED
ARRAIGNMENT, THE ACCUSED WAS BROUGHT BEFORE THE TRIAL COURT WITHOUT COUNSEL. THE
COURT ASSIGNED A PAO ATTORNEY TO BE THE COUNSEL DE OFFICIO WHO, DURING TRIAL ALSO
MADE A REQUEST THAT SHE BE RELIEVED FROM THE CASE. ANOTHER COUNSEL WAS THEREAFTER
ASSIGNED AS THE NEW COUNSEL DE OFFICIO. WHEN SAID NEW COUNSEL FOR THE ACCUSED FAILED
TO APPEAR BEFORE THE COURT FOR THEIR PRESENTATION OF EVIDENCE, THE COURT APPOINTED
ANOTHER COUNSEL DE OFFICIO BUT, AGAIN, SAID COUNSEL ASKED TO BE RELIEVED FROM THE CASE.
THE NEWLY APPOINTED COUNSEL ALSO FAILED TO APPEAR BEFORE THE COURT.
DESPITE THE SAID EVENTS, THE LOWER COURT CONVICTED THE ACCUSED OF DEATH PENALTY FOR
THE VIOLATION OF THE CRIME OF RAPE. THE DEFENSE COUNSEL CLAIMED THAT THE ACCUSED WAS
DEPRIVED OF DUE PROCESS, WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE AND VIGILANT
COUNSEL AND HIS CONSTITUTIONAL RIGHT TO BE TRIED BY AN IMPARTIAL JUDGE. IS THERE A
VIOLATION OF DUE PROCESS AND WAS DENIED OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE AND
VIGILANT COUNSEL?

A: Yes. The RIGHT TO COUNSEL MUST BE MORE THAN JUST THE PRESENCE OF A LAWYER IN THE
COURTROOM OR THE MERE PROPOUNDING OF STANDARD QUESTIONS AND OBJECTIONS. THE RIGHT
TO COUNSEL MEANS THAT THE ACCUSED IS AMPLY ACCORDED LEGAL ASSISTANCE EXTENDED BY A
COUNSEL WHO COMMITS HIMSELF TO THE CAUSE FOR THE DEFENSE AND ACTS ACCORDINGLY. The
right assumes an active involvement by the lawyer in the proceedings, particularly at the trial of the
case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case,
and his knowing the fundamental procedures, essential laws and existing jurisprudence. The right of an
accused to counsel finds substance in the performance by the lawyer of his sworn duty of fidelity to his
client. Tersely put, it means an efficient and truly decisive legal assistance and not a simple perfunctory
representation.
IT IS NEVER ENOUGH THAT ACCUSED BE SIMPLY INFORMED OF HIS RIGHT TO COUNSEL; HE SHOULD
ALSO BE ASKED WHETHER HE WANTS TO AVAIL HIMSELF OF ONE AND SHOULD BE TOLD THAT HE CAN
HIRE A COUNSEL OF HIS OWN CHOICE IF HE SO DESIRES OR THAT ONE CAN BE PROVIDED TO HIM AT HIS
REQUEST.
A counsel de oficio is expected to do his utmost. A mere pro-forma appointment of de oficio counsel
who fails to genuinely protect the interests of the accused merits disapprobation. The exacting demands
expected of a lawyer should be no less than stringent when one is a counsel de officio. He must take the

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case not as a burden but as an opportunity to assist in the proper dispensation of justice. No lawyer is to
be excused from this responsibility except only for the most compelling and cogent reasons.

Canon 18 of the Code of Professional Responsibility requires every lawyer to serve his client with utmost
dedication, competence and diligence. He must not neglect a legal matter entrusted to him, and his
negligence in this regard renders him administratively liable. Obviously, in the instant case, the
aforenamed defense lawyers did not protect, much less uphold, the fundamental rights of the accused.
Instead, they haphazardly performed their function as counsel de oficio to the detriment and prejudice
of the accused Sevilleno, however guilty he might have been found to be after trial. (People v. Bermas,
G.R. No. 120420. April 21, 1999)

Q: Give three instances when a lawyer is allowed to withdraw his/her services. (2015 Bar)

WITHDRAWAL OF SERVICES

Canon 22. A lawyer shall withdraw his services only for good cause and upon notice appropriate in the
circumstances.

A:

1. When the client pursues an illegal or immoral course of conduct in connection with the matter
he is handling;

2. When the client insists that the lawyer pursue conduct violative of these canons and rules; 


3. When his inability to work with co-counsel will not promote the best interest of the client;

4. When the mental or physical condition of the lawyer renders it difficult for him to carry out
the employment effectively;

5. When the client deliberately fails to pay the fees for the services or fails to comply with the
retainer agreement;

6. When the lawyer is elected or appointed to a public office; and

7. Other similar cases.

Q: When may refusal of a counsel to act as counsel de oficio be justified on grounds aside from
reasons of health, extensive travel abroad, or similar reasons of urgency? Support your answer.
(2001 Bar)

A: Other justified grounds for refusal to act as counsel de oficio are:

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a. Too many de oficio cases assigned to the lawyer (People v. Daeng, 49 SCRA 222);

b. Conflict of interest (Rule 14.03, CPR);

c. Lawyer is not in a position to carry out the work effectively or competently (supra);

d. Lawyer is prohibited from practicing law by reason of his public office which
prohibits appearances in court; and

e. Lawyer is preoccupied with too many cases which will spell prejudice to the new clients.

Q: A is accused of robbery in a complaint filed by B. A sought free legal assistance from the
Public Attorney’s Office (PAO) and Atty. C was assigned to handle his case. After reviewing the facts as
stated in the complaint and as narrated by A, Atty. C is convinced that A is guilty.

a. May Atty. C refuse to handle the defense of A and ask to be relieved? Explain fully.

b. In problem (a), if the lawyer is counsel de parte for the accused and he learns later after
accepting the case and while trial is ongoing that his client was indeed the perpetrator of the
crime, may the lawyer withdraw his appearance from the case? Why or why not? (2014 Bar) 


A:

a. Rule 14.04 of the Code of Professional Responsibility provides that a lawyer shall not decline
to represent a person solely on account of his own opinion regarding the guilt of the said
person. It is not the duty of a lawyer to determine whether the accused is guilty or not, but
the judge’s. Besides, in a criminal case, the accused is presumed innocent, and he is entitled to
an acquittal unless his guilt is proven beyond reasonable doubt. The role of the lawyer is to see
to it that his constitutional right to due process is observed. 


b. He may withdraw his appearance but in accordance with procedure in Sec. 26, Rule 138 of
the Rules of Court. Moreover, Rule 19.02 of the Code of Professional Responsibility provides that
“a lawyer who has received information that his client has, in the course of the
representation, perpetuated 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.”

2. Choice of counsel à ayaw nya counsel nya na caseà denied ba ng due process ung di nabigyan ng
counsel de officio of his choice

State the rule on (a) the right of the client to dismiss his lawyer and (b) the prerogative of a lawyer to
withdraw as counsel. (5%).

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Answer:

(a) A client has the right to dismiss his lawyer at any time, with or without just cause. The existence or
non-existence of just cause. The existence or non- existence of just cause is material only for
determining the right of the lawyer to compensation for the services rendered. The client’s right to
terminate the lawyer’s services springs from the strictly personal and highly confidential nature of the
client loses confidence in his lawyer, he has the right to dismiss him.

(b) On the other hand, the lawyer does not have an unqualified right to withdraw as counsel. As an
officer of the court, he may not withdraw or to be permitted to withdraw as counsel if such withdrawal
will work injustice to a client of frustrate the ends of justice. A lawyer may withdraw at anytime with his
client’s written consent. Without such consent, he may withdraw his services only for good because and
upon notice appropriate in the circumstances (Canon 22, Code of Professional Responsibility).

3. 5 grounds of discipline of lawyers

The following are specific grounds for suspension or disbarment of a lawyer:

a. Deceit;
b. Malpractice;
c. Grossly immoral conduct
d. Conviction of a crime involving moral turpitude;
e. Violation of oath of office;
f. Willful disobedience of any lawful order of a superior court
g. Corrupt or willful appearance as an attorney for a party to a case without authority to do so. (Sec. 27,
Rule 138, RRC)

4. will absolute pardon automatically restore the status of attorney à separation of power sagot

An absolute pardon granted to a lawyer who has been previously disbarred does not
automatically entitle him to reinstatement. Absolute pardon is a power vested to the Executive
Branch. Admission to the practice of law is vested on the Supreme court. The matter of his
reinstatement is still subject to the discretion of the Supreme Court. Under the DOCTRINE OF
SEPARATION OF POWERS of each branches of the government are prevented from invading domain
from its other branches.

EFFECT OF Executive PARDON

(1) 1f the pardon is conditional, the disbarment case will not be dismissed on the basis thereof.

(2) If the pardon is absolute and granted before conviction, the disbarment case will be dismissed.

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(3) If the pardon is absolute but granted after conviction, It does not automatically entitle him to
reinstatement to the bar it must be shown by evidence aside from absolute pardon that he is now a
person of good moral character and fit and proper person to practice law.

5.Factors to be considered in imposing attorneys fees

Canon20

- A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE FEES

(1997,1998,2003 Bar Question).
Rule 20.01, Canon 20, CPR - A lawyer shall be guided by the following factors in determining his fees:
a. The time spent and the extent of the service rendered or required;
b. the novelty and difficulty of the questions involved;
c. The importance of the subject matter;
d. The skill demanded;
e. The probability of losing other employment as a result of acceptance of the proffered case;
f. The customary charges for similar services and the schedule of fees of the IBP chapter to which he
belongs;
g. The amount involved in the controversy and the benefits resulting to the client from the service;
h. The contingency or certainty of compensation;
i. The character of the employment, whether occasional or established; and
j. The professional standing of the lawyer.

a. What factor should the judge consider in the award of attorneys fees in malicious prosecution

WHAT IS THE NATURE OF ATTORNEY’S FEES?

Q: What are the two concepts of attorney’s fees?

A:
ORDINARY ATTORNEY'S FEE – The reasonable compensation paid to a lawyer by his client for the legal
services he has rendered to the latter.(Pineda, 2009)

Note: The basis for this compensation is the fact of his employment by and his agreement with the
client.(Ibid.)

EXTRAORDINARY ATTORNEY'S FEE – An indemnity for damages ordered by the court to be paid by the
losing party in litigation.
Such award belongs to the client but parties may stipulate that whatever may be awarded by the court
as attorney’s fees will go directly to the lawyer.
Note: The basis for this is any of the cases provided for by law where such award can be made, such as
those authorized in Article 2208 of the Civil Code, and is payable not to the lawyer but to the client,
unless they have agreed that the award shall pertain to the lawyer as additional compensation or as
part thereof.

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WHAT FACTORS SHOULD THE JUDGE CONSIDER IN THE AWARD OF ATTORNEYS FEES AS DAMAGES IN
MALICIOUS PROSECUTION
DECIDING A CASE FOR MALICIOUS PROSECUTION, JUDGE SALES AWARDED ATTORNEY'S FEES AND
EXPENSES OF LITIGATION, IN ADDITION TO EXEMPLARY DAMAGES, TO THE PLAINTIFF.
A. DID THE JUDGE ACT WITHIN HIS DISCRETION IN AWARDING ATTORNEY'S FEES?
B. AS COUNSEL FOR THE PLAINTIFF, ARE YOU ENTITLED TO RECEIVE THE ATTORNEY'S FEES THUS
AWARDED IN ADDITION TO YOUR STIPULATED LEGAL FEES? (1994 BAR)
A: a. A party may recover attorney's fees in cases of malicious prosecution against him in an action for
damages against the party responsible therefore (Art. 2208 (3), Civil Code). But he must prove not only
that he was acquitted in the criminal action, but that the person who charged him knowingly made a
false statement of facts to induce the prosecutor to prosecute or that the institution of the criminal
action was prompted by a sinister design to vex or humiliate him and to cast upon him dishonor and
disgrace.

b. No. Attorney’s fees in the concept or as an item of damages is an indemnity for damages sustained by
the client, and belongs to him.

Question 6

a. Judge asked the winning lawyer to draft an order for the said case.
b. What are the duties of the lawyer in this instance?
c. Did he violate the rule on non forum shopping?
d. What are the instances to determine if a lawyer is guilty of non forum shopping

Answers

(a)

THE JUDGE DIRECTED THE COUNSEL TO DRAFT THE DECISION, IS IT PROPER?

No This is highly irregular if not anomalous because the drafting, preparation and writing of a decision is
the sole responsibility of a judge. It cannot be delegated to anyone. In Section 1, Rule 36 of the Rules of
Court, it is clear that "A judgment or final order determining the merits of the case shall be in writing,
personally and directly prepared by the judge," stating clearly and distinctly the facts and the law on
which it is based, signed by him and filed with the Clerk of Court. Thus, there is no gainsaying now that
respondent violated the aforequoted provision for which he should be administratively sanctioned.

(b)

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Canon 19 of the Code of Professional Responsibility enjoins a lawyer to represent his client with zeal.
However, the same Canon provides that a lawyers performance of his duties towards his client must be
within the bounds of the law. Rule 19.01 of the same Canon requires, among others, that a lawyer shall
employ only fair and honest means to attain the lawful objectives of his client. Canon 15, Rule 15.07 also
obliges lawyers to impress upon their clients compliance with the laws and the principle of fairness. To
permit lawyers to resort to unscrupulous practices for the protection of the supposed rights of their
clients is to defeat one of the purposes of the state the administration of justice. While lawyers owe
their entire devotion to the interest of their clients and zeal in the defense of their clients right, they
should not forget that they are, first and foremost, officers of the court, bound to exert every effort to
assist in the speedy and efficient administration of justice.

(c) Rule 12.02, Canon 12, CPR – A lawyer shall not file multiple actions arising from the same cause.
(1991, 1997, 1998, 2002 Bar Questions

(1) When, as a result or in anticipation of an adverse decision in one forum, a party seeks a favorable
opinion in another forum through means other than appeal or certiorari by raising identical causes of
action subject matter and issues.

(2) The institution of involving the same parties for the same cause of action, either simultaneously or
successively, on the supposition that one or the other court would come out with a favorable disposition

[Araneta y. Araneta (2013)].

An indiclum of the presence of, or the test for determining whether a litigant violated the rule against,
forum shopping is where the elements of litis pendentia are present oi’where a final judgment in one
case will amount to res Judicata in the other case.

(d)

Jurisprudence has recognized that forum, shopping can be committed in several ways: (1) filing multiple
cases based on the same cause of action and with the same prayer, the previous case not having been
resolved yet (where the ground for dismissal is litis pendentia); (2) filing multiple cases based on the
same cause of action and the same prayer, the previous case having been finally resolved (where the
ground for dismissal is res judicata); and (3) filing multiple cases based on the same cause of action but
with different prayers (splitting of causes of action, where the ground for dismissal is also either litis
pendentia or res judicata).

(Top Rate Construction & General Services, Inc. v. Paxton Development Corporation)

The test for determining forum shopping is settled. In Yap v. Chua, et al.: To determine whether a party
violated the rule against forum shopping, the most important factor to ask is whether the elements of
litis pendentia are present, or whether a final judgment in one case will amount to res judicata in

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another; otherwise stated, the test for determining forum shopping is whether in the two (or more)
cases pending, there is identity of parties, rights or causes of action, and reliefs sought.

Q: 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 Prosecutor’s Office. She also filed a
civil complaint before the Paranaque Regional Trial Court 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 Land Transportation Franchising
and Regulatory Board for cancellation or suspension of the operator’s franchise. Would you say that
she and her lawyer were guilty of forum-shopping?

A: 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 no forumshopping involved in filing an administrative complaint against the bus
operator with the Land Transportation Franchising and Regulatory Board. The cancellation or suspension
of the operator’s franchise is for a different cause of action. (1997 Bar Question)

Question Number 2: Duties of the Lawyer to represent a guilty client?

Section 20 of Rule 138 of the Rules of Court-In the defense of a person accused of crime, by all fair and
honorable means, regardless of his personal opinion as to the guilt of the accused, to present every
defense that the law permits, to the end that no person may be deprived of life or liberty, but by due
process of law.

In a criminal action, it is the ―right of the lawyer to undertake the defense of a person accused of crime,
regardless of his personal opinion as to the guilt of the accused; otherwise, innocent persons, victims
only of suspicious circumstances, might be denied proper defense. ( Canons of Professional Ethics)

Rule 14.01 – Shall not decline to represent on account of race, sex, creed, status, or opinion as to guilt

In the case of FRANCISCO VS PORTUGAL The rule in this jurisdiction is that a client has the absolute right
to terminate the attorney-client relation at anytime with or without cause. The right of an attorney to
withdraw or terminate the relation other than for sufficient cause is, however, considerably restricted.
Among the fundamental rules of ethics is the principle that 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 a good cause/

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Question Number 3: Nature of the Contingent fees

A contingent fee arrangement is valid in this jurisdiction[25] and is generally recognized as valid and
binding but must be laid down in an express contract.[26] The amount of contingent fee agreed upon by
the parties is subject to the stipulation that counsel will be paid for his legal services only if the suit or
litigation prospers. A much higher compensation is allowed as contingent fee in consideration of the risk
that the lawyer may get nothing if the suit fails.[27] Contracts of this nature are permitted because they
redound to the benefit of the poor client and the lawyer especially in cases where the client has
meritorious cause of action, but no means with which to pay for legal services unless he can, with the
sanction of law, make a contract for a contingent fee to be paid out of the proceeds of the litigation.
Oftentimes, the contingent fee arrangement is the only means by which the poor and helpless can seek
redress for injuries sustained and have their rights vindicated.[28]

Contingent fee contracts are subject to the supervision and close scrutiny of the court in order that
clients may be protected from unjust charges.[29] Section 13 of the Canons of Professional Ethics states
that a contract for a contingent fee, where sanctioned by law, should be reasonable under all the
circumstances of the case including the risk and uncertainty of the compensation, but should always be
subject to the supervision of a court, as to its reasonableness. Likewise, Rule 138, Section 24, of the Rules
of Court provides:

SEC. 24. Compensation of attorneys; agreement as to fees. - An attorney shall be entitled to have and
recover from his client no more than a reasonable compensation for his services, with a view to the
importance of the subject matter of the controversy, the extent of the services rendered, and the
professional standing of the attorney. No court shall be bound by the opinion of attorneys as expert
witnesses as to the proper compensation, but may disregard such testimony and base its conclusion on
its own professional knowledge. A written contract for services shall control the amount to be paid
therefor unless found by the court to be unconscionable or unreasonable. (Underscoring supplied.)

Rayos vs Fernandez, G.R. No. 169079, February 12, 2007

Question Number 4: Espinosa vs Omana Case

YES This Court has ruled that the extrajudicial dissolution of the conjugal partnership without
judicial approval is void. The Court has also ruled that a notary public should not facilitate the
disintegration of a marriage and the family by encouraging the separation of the spouses and
extrajudicially dissolving the conjugal partnership, which is exactly what Omaña did in this case.
We cannot accept Omaña”s allegation that it was her part-time office staff who notarized
the contract. We agree with the IBP-CBD that Omaña herself notarized the contract. Even if it
were true that it was her part-time staff who notarized the contract, it only showed Omaña”s
negligence in doing her notarial duties. We reiterate that a notary public is personally responsible
for the entries in his notarial register and he could not relieve himself of this responsibility by
passing the blame on his secretaries or any member of her staff.

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 We likewise agree with the IBP-CBD that in preparing and notarizing a void document, Omaña
violated Rule 1.01, Canon 1 of the Code of Professional Responsibility which provides that “[a]
lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.” Omaña knew fully
well that the “Kasunduan Ng Paghihiwalay” has no legal effect and is against public policy.
Therefore, Omaña may be suspended from office as an attorney for breach of the ethics of the
legal profession as embodied in the Code of Professional Responsibility.

Court suspended Atty. Omana from the practice of law for 1 year and revoked her notarial
commission, if still existing, and suspend her as a notary public for 2 years.

Question Number 5 (based on PNB Case)

a. Should the judge inhibit himself?

On the charge of refusal to inhibit

Closely related to the charge of bias is the charge of refusal to inhibit. Again, the Investigating Justice
correctly recommended the dismissal of this charge against respondent, because when a case does not
fall under the instances covered by the rule on mandatory disqualification of judges as expressly
enumerated in Section 1, Rule 137 of the Rules of Court, which provides:

Section 1. Disqualification of judges. No judge or judicial officer shall sit in any case in which he, or his
wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to
either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree,
computed according to the rules of the civil law, or in which he has been executor, administrator,
guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision
is the subject of review, without the written consent of all parties in interest, signed by them and
entered upon the record.

A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or
valid reasons other than those mentioned above. (Emphasis supplied)

inhibition is discretionary and primarily a matter of conscience and sound discretion on the part of the
judge.17 This discretion is an acknowledgment of the fact that judges are in a better position to
determine the issue of inhibition, as they are the ones who directly deal with the litigants in their
courtrooms.18

As aptly explained by respondent in his Comment, the grounds mentioned by complainant in her
motions to inhibit are not mandatory grounds for disqualification. He is related to Atty. Hermosisima,
counsel in Civil Case No. 517 only by the fifth degree of affinity, which relationship is not included in Rule
137. Complainant failed to cite any specific act that would indicate bias, prejudice or vengeance
warranting his inhibition from the cases.

b. Question as to the appearance of a lawyer in a certain case (Apply the ruling of the court and
Article 1491 par 5 participation of the lawyer in the court)

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CLIENT’S MONEY AND PROPERTIES

Canon 16. A Lawyer shall hold ¡n trust all moneys and properties of his client that may come Into his
possession.

Lawyers cannot acquire or purchase, even at a public or judicial auction, either in person or through the
mediation of another, the property and rights which may be the object of any litigation in which they
take part by virtue of their profession (Article 149 1(5), Civil Code).

REQUISITES

(1) There is an attorney client relationship;

(2) The property or interest of the client is in litigation;

(3) The attorney takes part as counsel in the case;

(4) The attorney purchases or acquires the property or right, by himself or through another, during the
pendency of litigation (Laig y. CA (1978)).

Question Number 6: Macarubo vs Macarubo

The Court laid down the following guidelines in resolving requests for judicial clemency, to wit:

1. There must be proof of remorse and reformation. These shall include but should not be limited to
certifications or testimonials of the officer(s) or chapter(s) of the Integrated Bar of the Philippines,
judges or judges associations and prominent members of the community with proven integrity and
probity. A subsequent finding of guilt in an administrative case for the same or similar misconduct will
give rise to a strong presumption of non-reformation.

2. Sufficient time must have lapsed from the imposition of the penalty to ensure a period of reform.

3. The age of the person asking for clemency must show that he still has productive years ahead of him
that can be put to good use by giving him a chance to redeem himself.

4. There must be a showing of promise (such as intellectual aptitude, learning or legal acumen or
contribution to legal scholarship and the development of the legal system or administrative and other
relevant skills), as well as potential for public service. 5. There must be other relevant factors and
circumstances that may justify clemency.

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Moreover, to be reinstated to the practice of law, the applicant must, like any other candidate for
admission to the bar, satisfy the Court that he is a person of good moral character.

Question Number 7: Factors if there is conflict of interest on the part of the lawyer

FACTORS TO CONSIDER IN CASE OF CONFLICT OF INTEREST ON THE PART OF THE LAWYERS

Q: What are the three (3) tests to determine conflict of interest for practicing lawyers? Explain each
briefly. (2009 Bar)
A:
1. When in representation of one client, a lawyer is required to fight for an issue or claim, but is also
duty bound to oppose it for another client;
2. When the acceptance of the new retainer will require an attorney to perform an act that may
injuriously affect the first client or when called upon in a new relation to use against the first client any
knowledge acquired through their professional connection;
3. When the acceptance of a new relation would prevent the full discharge of an attorney’s duty to give
undivided fidelity and loyalty to the client or would invite suspicion of unfaithfulness or double-dealing
in the performance of that duty (Northwestern University v. Arquillo, 415 SCRA 513 [2005]).

Question Number 8 (BONUS)

1 Rule on CPR

1 Rule on Canon of Judicial Ethics

Explain and justify why it is the most important.

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