Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
School of Law
Group 2
3-E
Written Report
Submitted By:
Ajas, Marnelli Joy
Asistio, Maritoni Luise
Balleza, Niel
Briones, Fatima Dennise
Lacson, Jeric
Manuel, Andrei
Santiago, Emily
Valdez, Marcus
Submitted to:
Atty. Paulino Ungos III
Submitted on:
February 07, 2018
Outline:
Facts:
Issue:
Ruling:
Facts:
Issue:
Ruling:
Facts:
Issue:
Ruling:
Facts:
Issue:
Ruling:
Derivative Suit
In this jurisdiction, a corporation’s board of directors is understood to
be that body which (1) exercises all powers provided for under the
Corporation Code; (2) conducts all business of the corporation; and
(3) controls and holds all property of the corporation. Its members
have been characterized as trustees or directors clothed with a
fiduciary character. It is clearly separate and distinct from the
corporate entity itself.
Hornilla v. Salunat
Doctrine:
A lawyer engaged as counsel for a corporation cannot represent
members of the same corporation's board of directors in a derivative
suit brought against them. To do so would be tantamount to
representing conflicting interests, which is prohibited by the Code of
Professional Responsibility
There is conflict of interest when a lawyer represents inconsistent
interests of two or more opposing parties. The test is "whether or not
in behalf of one client, it is the lawyer's duty to fight for an issue or
claim, but it is his duty to oppose it for the other client. In brief, if he
argues for one client, this argument will be opposed by him when he
argues for the other client." This rule covers not only cases in which
confidential communications have been confided, but also those in
which no confidence has been bestowed or will be used. Also, there
is conflict of interests if the acceptance of the new retainer will require
the attorney to perform an act which will injuriously affect his first
client in any matter in which he represents him and also whether he
will be called upon in his new relation to use against his first client
any knowledge acquired through their connection. Another test of the
inconsistency of interests is whether the acceptance of a new relation
will prevent an attorney from the full discharge of his duty of
undivided fidelity and loyalty to his client or invite suspicion of
unfaithfulness or double dealing in the performance thereof.
FACTS and Ruling:
Complainants, who are members of the PPSTA, filed an intra
corporate case against its members of the Board of Directors before
the SEC. PPSTA retained as counsel, the ASSA Law Firm, of which
respondent attorney is the managing partner. Respondent attorney
subsequently acted as counsel of record for the respondent Board of
Directors of the PPSTA in the said case.
The Supreme Court held that a lawyer engaged as counsel for a
corporation cannot represent members of the same corporation's
board of directors in a derivative suit brought against them. The Court
thus agreed with the IBP finding that respondent was guilty of conflict
of interest, which is prohibited by the Code of Professional
Responsibility, when he represented the parties against whom his
other client, the PPSTA, filed suit. The Court admonished the
respondent to observe a higher degree of fidelity in the practice of his
profession.
Pacana vs. Pascual Lopez A.C. No. 8243 July 24, 2009
Doctrine:
The absence of a written contract will not preclude the finding that
there was a professional relationship between the
parties. Documentary formalism is not an essential element in the
employment of an attorney; the contract may be express or
implied. To establish the relation, it is sufficient that the advice and
assistance of an attorney is sought and received in any matter
pertinent to his profession.
Palm v. Iledan
Doctrine:
Canon 21. A lawyer shall preserve the confidence and secrets of his
client even after the attorney-client relationship is terminated.
-It is settled that the mere relation of attorney and client does not raise
a presumption of confidentiality. The client must intend the
communication to be confidential.
RULING:
The Court cannot sustain the findings of the IBP and imposing upon
the respondent a penalty of suspension for 1 year.
DOCTRINE 1:
Although the information about the necessity to amend the corporate
by-laws may have been given to respondent, it could not be considered
a confidential information. The amendment, repeal or adoption of new
by-laws may be effected by "the board of directors or trustees, by a
majority vote thereof, and the owners of at least a majority of the
outstanding capital stock, or at least a majority of members of a non-
stock corporation". It means the stockholders are aware of the
proposed amendments to the by-laws. While the power may be
delegated to the board of directors or trustees, there is nothing in the
records to show that a delegation was made in the present case.
Further, whenever any amendment or adoption of new by-laws is
made, copies of the amendments or the new by-laws are filed with the
Securities and Exchange Commission (SEC) and attached to the
original articles of incorporation and by-laws. The documents are
public records and could not be considered confidential.
It is settled that the mere relation of attorney and client does not raise
a presumption of confidentiality. The client must intend the
communication to be confidential.
Doctrine 2:
In Quiambao v. Bamba, the Court enumerated various tests to
determine conflict of interests. One test of inconsistency of interests is
whether the lawyer will be asked to use against his former client any
confidential information acquired through their connection or previous
employment. The Court has ruled that what a lawyer owes his former
client is to maintain inviolate the client's confidence or to refrain from
doing anything which will injuriously affect him in any matter in which
he previously represented him.
We find no conflict of interest when respondent represented Soledad
in a case filed by Comtech. The case where respondent represents
Soledad is an Estafa case filed by Comtech against its former
officer. There was nothing in the records that would show that
respondent used against Comtech any confidential information
acquired while he was still Comtech's retained counsel. Further,
respondent made the representation after the termination of his
retainer agreement with Comtech. A lawyer's immutable duty to a
former client does not cover transactions that occurred beyond the
lawyer's employment with the client. The intent of the law is to impose
upon the lawyer the duty to protect the client's interests only on matters
that he previously handled for the former client and not for matters that
arose after the lawyer-client relationship has terminated.
III. Limitations/Restrictions of Government Lawyers in the
Practice of Law
The term “public officials” includes elective and appointive officials and
employees, permanent or temporary, whether in the career or
noncareer service, including military and police personnel whether or
not they receive compensation regardless of amount.
Public Prosecutor
He is a quasi-judicial officer and as such, he should seek equal and
impartial justice. He should be concerned with seeing that no innocent
man suffers as in seeing that no guilty man escapes.
He should see to it that the accused is given fair and impartial trial and
not deprived of any of his statutory or constitutional rights. He should
recommend the acquittal of the accused whose conviction is on
appeal, if he finds no legal basis to sustain the conviction.
Rule 6.02 - A lawyer in the government service shall not use his
public position to promote or advance his private interests, nor
allow the latter to interfere with his public duties.
Applicability of the Rule:
Ali v. Bubong, A.C. No. 4018, [March 8, 2005], 493 PHIL 172-
185
Facts:
This is a verified petition for disbarment filed against Atty. Mosib Ali
Bubong for having been found guilty of grave misconduct while holding
the position of Register of Deeds of Marawi City.
Rule 6.02 A lawyer in the government service shall not use his public
position to promote or advance his private interests, nor allow the latter
to interfere with his public duties.
Facts:
The respondent cannot be held liable under Rule 6.02 of the Code of
Professional Responsibility since the provision applies to lawyers in
the government service who are allowed by law to engage in private
law practice and to those who, though prohibited from engaging in the
practice of law, have friends, former associates and relatives who are
in the active practice of law. In this regard, the respondent had already
completed his third term in Congress and his stint in the Committee on
Awards when he represented Joseph Jeffrey Rodriguez on May 24,
1999.
Lastly, the respondent claimed that he canot be held liable under Rule
6.03 of the Code of Professional Responsibility since he did not
intervene in the disposition of the conflicting applications of the
complainant and Joseph Jeffrey Rodriguez because the applications
were not submitted to the Committee on Awards when he was still a
member.
Issue/s:
Whether rule 6.02 and 6.03 of the Code of Professional Responsibility
were violated
Ruling:
Any matter
Refers to any discreet, isolatable act, as well as identifiable transaction
or conduct involving a particular situation and specific party, and not
merely an act of drafting, enforcing or interpreting government or
agency proceeding, regulations, or laws or briefing abstract principles
of laws.
Intervene
It only includes an act of a person who has the power to influence the
subject proceedings.
Related laws:
R.A. No. 3019, Section 3(d)
Accepting or having any member of his family accept employment in a
private enterprise which has pending official business with him during
the pendency thereof or within one year after its termination constitutes
corrupt practice of a public officer and is unlawful.
Forbidden Office
A member of the legislature may not accept an appointment in an office
which was created nor had its emolument increased during the
lawmaker’s term of office.
Facts:
The respondent cannot be held liable under Rule 6.02 of the Code of
Professional Responsibility since the provision applies to lawyers in
the government service who are allowed by law to engage in private
law practice and to those who, though prohibited from engaging in the
practice of law, have friends, former associates and relatives who are
in the active practice of law. In this regard, the respondent had already
completed his third term in Congress and his stint in the Committee on
Awards when he represented Joseph Jeffrey Rodriguez on May 24,
1999.
Lastly, the respondent claimed that he canot be held liable under Rule
6.03 of the Code of Professional Responsibility since he did not
intervene in the disposition of the conflicting applications of the
complainant and Joseph Jeffrey Rodriguez because the applications
were not submitted to the Committee on Awards when he was still a
member.
Issue/s:
Whether rule 6.02 and 6.03 of the Code of Professional Responsibility
were violated
In any event, even granting that respondents act fell within the
definition of practice of law, the available pieces of evidence are
insufficient to show that the legal representation was made before the
Committee on Awards, or that the Assurance was intended to be
presented before it. These are matters for the complainant to prove
and we cannot consider any uncertainty in this regard against the
respondents favor.
Facts:
A public bidding of GENBANKs assets was held from March 26 to
28, 1977, wherein the Lucio Tan group submitted the winning bid.
Respondents Tan, et al. repaired to this Court and filed petitions for
certiorari, prohibition and injunction to nullify, among others, the writs
of sequestration issued by the PCGG. After the filing of the parties
comments, this Court referred the cases to the Sandiganbayan for
proper disposition. In all these cases, respondents Tan, et al. were
represented by their counsel, former Solicitor General Estelito P.
Mendoza, who has then resumed his private practice of law.
Issue/s:
Whether Rule 6.03 of the Code of Professional Responsibility applies
to respondent Mendoza
Ruling:
The key to unlock Rule 6.03 lies in comprehending first, the meaning
of matter referred to in the rule and, second, the metes and bounds of
the intervention made by the former government lawyer on the matter.
The American Bar Association in its Formal Opinion 342, defined
matter as any discrete, isolatable act as well as identifiable transaction
or conduct involving a particular situation and specific party, and not
merely an act of drafting, enforcing or interpreting government or
agency procedures, regulations or laws, or briefing abstract principles
of law.
Firstly, it is critical that we pinpoint the matter which was the subject
of intervention by respondent Mendoza while he was the Solicitor
General.
Secondly, it can even be conceded for the sake of argument that the
above act of respondent Mendoza falls within the definition of matter
per ABA Formal Opinion No. 342. Be that as it may, the said act of
respondent Mendoza which is the matter involved in Sp. Proc. No.
107812 is entirely different from the matter involved in Civil Case No.
0096. Again, the plain facts speak for themselves. It is given that
respondent Mendoza had nothing to do with the decision of the Central
Bank to liquidate GENBANK. It is also given that he did not participate
in the sale of GENBANK to Allied Bank. The matter where he got
himself involved was in informing Central Bank on the procedure
provided by law to liquidate GENBANK thru the courts and in filing the
necessary petition in Sp. Proc. No. 107812 in the then Court of First
Instance. The subject matter of Sp. Proc. No. 107812, therefore, is
not the same nor is related to but is different from the subject
matter in Civil Case No. 0096. Civil Case No. 0096 involves the
sequestration of the stocks owned by respondents Tan, et al., in
Allied Bank on the alleged ground that they are ill-gotten. The case
does not involve the liquidation of GENBANK. Nor does it involve the
sale of GENBANK to Allied Bank. Whether the shares of stock of the
reorganized Allied Bank are ill-gotten is far removed from the issue of
the dissolution and liquidation of GENBANK. GENBANK was
liquidated by the Central Bank due, among others, to the alleged
banking malpractices of its owners and officers. In other words, the
legality of the liquidation of GENBANK is not an issue in the
sequestration cases. Indeed, the jurisdiction of the PCGG does not
include the dissolution and liquidation of banks. It goes without saying
that Code 6.03 of the Code of Professional Responsibility cannot
apply to respondent Mendoza because his alleged intervention
while a Solicitor General in Sp. Proc. No. 107812 is an intervention
on a matter different from the matter involved in Civil Case No.
0096.
Reason: To prevent the law firm or partners from making use of the
name of the public official to attract business and to avoid suspicion of
undue influence.
Punong Barangay
On the other hand, a punong barangay is not forbidden to practice his
profession but he should procure prior permission or authorization
from the head of his department, as required by civil service
regulations.
Canon 15, Rule 15.06 – A lawyer shall not state or imply that he
is able to influence any public official, tribunal or legislative
body.
Influence-Peddling
It is improper for a lawyer to show in any way that he has connections
and can influence any tribunal or public official, judge prosecutor
congressman and others, specially so if the purpose is to enhance his
legal standing and to entrench the confidence of the client that his
case or cases are assured of victory. (PINEDA)
Illustrative Cases:
Maderada vs Mediodea
Facts :
Issue:
Whether or not the appearance of Maderada as counsel was valid.
Held:
Samonte vs Gatdula
Facts:
Issue:
Whether or not there was grave misconduct consisting in engaging in
private practice of law in conflict with his official functions as Branch
Clerk of Court.
Held:
PART I
BASIC CONCEPTS
1. What are the purposes of Notarial law?
(a) To promote, serve, and protect public interest;
(b) To simplify, clarify, and modernize the rules governing notaries
public; and
(c) To foster ethical conduct among notaries’public. (Sec 2, Rule I)
3. What is a Jurat?
“Jurat” refers to an act in which an individual on a single occasion:
Appears in person before the notary public and presents an instrument
of document;
Is personally known to the notary public or identified by the notary
public through competent evidence of identity as defined by the Rules;
Signs the instrument or document or document in the presence of the
notary; and
Takes an oath or affirmation before the notary public as to such
instrument or document. (Sec. 6, Rule II)
4. What is a Notarial Certificate?
A notarial certificate refers to the part of, or attachment to, a notarized
instrument or document that is completed by the notary public, bears
the notary’s signature and seal, and states the facts attested to by the
notary public in a particular notarization as provided for by the rules.
(Sec. 8, Rule II)
7. Who is a principal?
Principal refers to a person appearing before the notary public whose
act is subject of the notarization. (Sec. 10, Rule II)
PART II
The Notary Public
A notary public is an individual authorized by state or local
government to officially witness signatures on legal documents,
collect sworn statements and administer oaths.
The principal function of a notary public is to authenticate
documents. When a notary public certifies to the due execution and
delivery of a document under his hand and seal, he gives the
document the force of evidence. Indeed, one of the purposes of
requiring documents to be acknowledged before a notary public, in
addition to the solemnity which should surround the execution and
delivery of documents, is to authorize such documents to be given
without further proof of their execution and delivery. A NOTARIAL
DOCUMENT IS BY LAW ENTITLED TO FULL FAITH AND CREDIT
UPON ITS FACE. (Caalim-Verzonilla v. Atty. Pascua, 2011)
The function of a notary public is, among others, to guard against
any illegal or immoral arrangements. That function would be
defeated if the notary public were one of the signatories to the
instrument. For then, he would be interested in sustaining the
validity thereof as it directly involves himself and the validity of his
own act. It would place him in an inconsistent position, and the very
purpose of the acknowledgment, which is to minimize fraud, would
be thwarted. (Villarin vs. Sabate, 2000)
Under Sec. 12, Rule 141 of the Rules of Court as amended by A.M. No.
04-2-04-SC, effective August 16, 2004 the following are the prescribed
schedule of fees:
(a) For protest for drafts, bills of exchange, or promissory notes for
non-acceptance or non-payment, and for notice thereof, ONE
HUNDRED (P100) PESOS;
(b) For the registration of such protest and filing or safekeeping of
the same, ONE HUNDRED (P100) PESOS;
(c) For authenticating powers of attorney, ONE HUNDRED (P100)
PESOS;
(d) For sworn statement concerning correctness of any account or
other document, ONE HUNDRED (P100) PESOS;
(e) For each oath of affirmation, ONE HUNDRED (P100) PESOS;
(f) For receiving evidence of indebtedness to be sent outside, ONE
HUNDRED (P100) PESOS;
(g) For issuing a certified copy of all or part of his notarial register or
notarial records, for each page, ONE HUNDRED (P100) PESOS;
(h) For taking depositions, for each page, ONE HUNDRED (P100)
PESOS; and
(i) For acknowledging other documents not enumerated in this
section, ONE HUNDRED (P100) PESOS.
17.4. Entries in the Notarial Register (Sec. 2, Rule VI; Sec. 3, Rule
IV)
What notarial acts are required to be recorded in the notarial
register?
19.2. What should the notary public do if his official seal is stolen,
lost, damaged or otherwise rendered unserviceable?
Within five (5) days after the official seal of a notary public is stolen,
lost, damaged or other otherwise rendered unserviceable in affixing a
legible image, the notary public, after informing the appropriate law
enforcement agency, shall notify the Executive Judge in writing,
providing proper receipt or acknowledgment, including registered mail,
and in the event of a crime committed, provide a copy or entry number
of the appropriate police record. Upon receipt of such notice, if found
in order by the Executive Judge, the latter shall order the notary public
to cause notice of such loss or damage to be published, once a week
for three (3) consecutive weeks, in a newspaper of general circulation
in the city or province where the notary public is commissioned.
Thereafter, the Executive Judge shall issue to the notary public a new
Certificate of Authorization to Purchase a Notarial Seal. (Sec. 2 [d],
Rule VII)
PART III
DISCIPLINARY SANCTIONS
21. What are the grounds to revoke notarial commission and
administrative sanctions?
(a) The Executive Judge shall revoke a notarial commission for any
ground on which an application for a commission may be
denied.
(b) In addition, the Executive Judge may revoke the commission of,
or impose appropriate administrative sanctions upon, any notary
public who:
(1) fails to keep a notarial register;
(2) fails to make the proper entry or entries in his notarial
register concerning his notarial acts;
(3) fails to send the copy of the entries to the Executive Judge
within the first ten (10) days of the month following;
(4) fails to affix to acknowledgments the date of expiration of
his commission;
(5) fails to submit his notarial register, when filled, to the
Executive Judge;
(6) fails to make his report, within a reasonable time, to the
Executive Judge concerning the performance of his duties,
as may be required by the judge;
(7) fails to require the presence of a principal at the time of the
notarial act;
(8) fails to identify a principal on the basis of personal
knowledge or competent evidence;
(9) executes a false or incomplete certificate under Section 5,
Rule IV;
(10) knowingly performs or fails to perform any other act
prohibited or mandated by these Rules; and
(11) commits any other dereliction or act which in the
judgment of the Executive Judge constitutes good cause
for revocation of commission or imposition of
administrative sanction.
(c) Upon verified complaint by an interested, affected or aggrieved
person, the notary public shall be required to file a verified
answer to the complaint. If the answer of the notary public is not
satisfactory, the Executive Judge shall conduct a summary
hearing. If the allegations of the complaint are not proven, the
complaint shall be dismissed. If the charges are duly established,
the Executive Judge shall impose the appropriate administrative
sanctions. In either case, the aggrieved party may appeal the
decision to the Supreme Court for review. Pending the appeal,
an order imposing disciplinary sanctions shall be immediately
executory, unless otherwise ordered by the Supreme Court.
(d) The Executive Judge may motu proprio initiate administrative
proceedings against a notary public, subject to the procedures
prescribed in paragraph (c) above and impose the appropriate
administrative sanctions on the grounds mentioned in the
preceding paragraphs (a) and (b). (Sec. 1, Rule XI)
Notaries public must observe with utmost care and utmost fidelity
the basic requirements in the performance of their duties,
otherwise, the confidence of the public in the integrity of notarized
deeds will be undermined. (Lee vs. Tambago, 2008)
V. Lawyer and Money Property of Client
Angeles v. Uy, Jr., A.C. No. 5019, [April 6, 2000], 386 PHIL
221-23
Facts: In a letter addressed to the Office of the Chief Justice,
Judge Adoracion G. Angeles of the Regional Trial Court of
Caloocan City (Branch 121) charged Atty. Thomas C. Uy Jr.
with violation of Canon 16 of the Code of Professional
Responsibility.
Obligations of a Lawyer
1. When a lawyer collects or receives money from his client for
a particular purpose, he should promptly account to the
client how the money was spent.
2. If he does not use the money for its intended purpose, he
must immediately return it to the client.
3. A lawyer has the duty to deliver his client’s funds or
properties as they fell due or upon demand.
- The failure to return the money gives rise to the presumption
that he misappropriated for his own use to the prejudice of
and in violation of the trust reposed in him by his client
(Agpalo, Ethics)
Bayonlav. Reyes, A.C. No. 4808, [November 22, 2011], 676 PHIL
500-517
Facts: Petra Durban and Paz Durban were sisters who had
jointly owned a parcel of land situated in Butuan City in their
lifetimes.
After some time, the Tarogs visited Atty. Ricafort to verify the
status of the consignation. Atty. Ricafort informed them that
he had not deposited the amount in court, but in his own
account. He promised to return the money, plus interest.
Despite several inquiries about when the amount would be
returned, however, the Tarogs received mere assurances
from Atty. Ricafort that the money was in good hands.
Respondent's Contention
In his defense, Atty. Ricafort denied that the ₱65,000.00 was
intended to be deposited in court, insisting that the amount
was payment for his legal services under a "package deal,"
that is, the amount included his acceptance fee, attorney’s
fee, and appearance fees from the filing of the complaint for
annulment of sale until judgment, but excluding appeal. Atty.
Ricafort explained that he had no copies of the receipts for
the ₱65,000.00 and ₱15,000.00 issued to the Tarogs
because "the practice of lawyers in most instances is that
receipt is issued without duplicate as it behooves upon the
client to demand for a receipt."
Respondent's contention:
First, complainant did not engage his services as counsel in
the case. She hired him for the purpose of filing two new
petitions, a petition for declaration of nullity of title and a
petition for review of a decree. Second, the civil case was
considered submitted for decision as early as August 6,
2001, or more than two months prior to October 13, 2001,
the date he was engaged as counsel, hence, he could not
have done anything anymore about it. Third, complainant
refused to provide him with documents related to the case,
preventing him from doing his job. And fourth, complainant
offered tampered evidence in the civil case, prompting him to
file falsification cases against her.
Complainant's Contention:
(1) Respondent violated the principle of confidentiality
between a lawyer and his client when he filed falsification
charges against her; (2) respondent should have returned
her money; (3) respondent should have verified the
authenticity of her documents earlier if he really believed that
they are falsified; and (4) his refusal to return her money
despite this Courts directive constitutes contempt.
Held:
Yes. There is nothing in the records to show that he filed any
petition. The ethics of the profession demands that, in such a
case, he should immediately return the filing fees to
complainant. In Parias v. Paguinto,[10] we held that a lawyer
shall account for all money or property collected from the
client. Money entrusted to a lawyer for a specific purpose,
such as for filing fee, but not used for failure to file the case
must immediately be returned to the client on demand. Per
records, complainant made repeated demands, but
respondent is yet to return the money.
The fact that Civil Case No. 00-044 was already submitted
for decision does not justify his inaction. After agreeing to
handle Civil Case No. 00-044, his duty is, first and foremost,
to enter his appearance. Sadly, he failed to do this simple
task. He should have returned complainants money. Surely,
he cannot expect to be paid for doing nothing.
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.
Held:
Yes. Rule 16.04 states that A lawyer shall not borrow money
from his client unless the clients interests 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.
The rule is that a lawyer shall not lend money to his client.
The only exception is, when in the interest of justice, he has
to advance necessary expenses (such as filing fees,
stenographers fees for transcript of stenographic notes, cash
bond or premium for surety bond, etc.) for a matter that he is
handling for the client.
Elements of prohibition:
The fact that the properties were first mortgaged and only
subsequently acquired in an auction sale long after the
termination of the intestate proceedings will not remove it
from the scope of the prohibition. To rule otherwise would
be to countenance indirectly what cannot be done directly.
Guevara VS Calalang
Fabillo VS IAC