Law Topics,Reviewers,Case Digests etc.

Sample Demand Letter

2011-02-07T19:35:00.000-08:00

The letter of demand should be couched in the language of a lawyer with a brief reminder in the opening statement of defendant's violation of plaintiff's right. The violation may be premised on defendants failure to live up to his presentation under a contract, or to observe with his obligation created by law. If there is any amount involved, then the demand letter should specify the proper amount of which defendant is liable with interest payable up to date of actual payment, otherwise, defendant should be charged for payment of attorney's fees and the costs of the litigation should the matter eventually reach the court. Your letter should be closed with a reasonable time allowance to comply within a period of not less than 5 to 10 days from receipt.

Sample of demand letter:

January 15, 2011

Mr. A

Dayangdang, Naga City

Sir:

My client Mr. B came to me complaining about your failure to make good your promissory note, despite repeated phone reminders, in the sum of Five Hundred Thousand Pesos (P500, 000.00) plus interest, on or before June 15, 2010 (photocopy of which is hereto attached).

While court action appears to be convenient under the circumstances, however, in order to preserve our cordial relations, and to avoid unnecessary expenses of litigation which will entail payment of attorney’s fees and costs of the suit, we have decided to give you this last chance to honor your commitment.

In view thereof, please reach us thru our telephone number 478-99-88, if you are ready with the amount, or simply send payment by mail or any mode of payment most expedient for you within ten (10) days from receipt hereof. Otherwise, much to our regret, we shall be constrained to bring this matter to court for the protection of our client’s rights and interests.

Very truly yours,

Legal Counsel

Sample Form Affidavit of Discrepancy

2011-01-12T09:11:00.000-08:00

I am taking legal form subject right now so I will be posting sample legal form. First up is the Affidavit of Discrepancy. By affidavit means 1) any written document in which the signer swears under oath before a notary public or someone authorized to take oaths , that the statements in the document are true. 2) in many states a declaration under penalty of perjury, which does not require the oath-taking before a notary, is the equivalent of an affidavit. Discrepancy means that there exists an inconsistency, divergence, conflict or disagreement as between facts or claims.

-------------

Republic of the Philippines)
Province of ____________)
City of _____………………….) S. S.

AFFIDAVIT OF DISCREPANCY

I, Eduardo Montalbo, of legal age, married, Filipino, with residence and postal address at _______________________, after having been duly sworn to in accordance with law, do hereby depose and say, to wit;

1. That I was born on 15th day of the October 1960 to the spouses Analiza Cruz and Jesus Intia;

2. That I have been using the name Eduardo Montalbo in all my documents and transactions;

3. That I found out in my Birt Certificate, my name was registered as Eddie Montalbo;

4. That the names “Eduardo Montalbo” and “Eddie Montalbo” refers to one and the same person “Eduardo Montalbo”;

5. That I am executing this affidavit for whatever legal purpose it may serve.

IN WITNESS WHEREOF, WE have hereunto set our hands this __ day of ________, _____ at __________________.

Eduardo Montalbo

Affiant

SUBSCRIBED AND SWORN to before me, this ________________ by Juan Dimaculangan with Community Tax Certificate No. 02409893 issued at ____________________ on _____________ and Pedro Katigbak with Community Tax Certificate No. 09875294 issued at ____________________ on _____________.

Notary Public

Attorney’s Roll No. 87654321

PTR No. 98765,05/15/2011,

IBP No. 9876543,05/15/2011-

Address

Doc. No. 00-0781;

Page No. 089;

Book No. 096;

Series of 2010;

Motion to Dismiss (Sample Form)

2010-12-19T16:33:00.001-08:00

Republic of the Philippines

Regional Trial Court, 5^th Judicial Region

___________

Branch 54

Pedro dela Cruz

Plaintiff

-vs-

John Corporation Inc.

Defendant

MOTION TO DISMISS

COMES NOW the Defendant, John Corporation Inc., through the undersigned counsel, appearing especially and solely for this purpose, and to this Honorable Court, most respectfully moves for the dismissal of the Complaint because this court has no jurisdiction over the subject matter of the claim.[1]

DISCUSSION

A cursory reading of the Complaint readily shows that this case is not within the exclusive original jurisdiction of the Regional Trial Court of Pili.

The plaintiff in his complaint prays for the following relief;

1. … the sum of 282,186.00 plus 12% interest per annum …

2. … moral and exemplary damages

3. … attorneys fees

REPUBLIC ACT NO. 7691 [2] provides that;

Section 1. Section 19 of Batas Pambansa Blg. 129, otherwise known as the "Judiciary Reorganization Act of 1980", is hereby amended to read as follows:

"Sec. 19. Jurisdiction in civil cases. — Regional Trial Courts shall exercise exclusive original jurisdiction:
xxx xxx xxx

"(8) In all other cases in which the demand, exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs or the value of the property in controversy exceeds One hundred thousand pesos (P100,000.00) or, in such other cases in Metro Manila, where the demand exclusive of the above-mentioned items exceeds Two Hundred thousand pesos (P200,000.00)."

xxx xxx xxx

Sec. 3. Section 33 of the same law is hereby amended to read as follows:

"Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Civil Cases. — Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise:

"(1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not exceed One hundred thousand pesos (P100,000.00) or, in Metro Manila where such personal property, estate, or amount of the demand does not exceed Two hundred thousand pesos (P200,000.00), exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That interest, damages of whatever kind, attorney's fees, litigation expenses, and costs shall be included in the determination of the filing fees: Provided, further, That where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions;

Sec. 5. After five (5) years from the effectivity of this Act, the jurisdictional amounts mentioned in Sec. 19(3), (4), and (8); and Sec. 33(1) of Batas Pambansa Blg. 129 as amended by this Act, shall be adjusted to Two hundred thousand pesos (P200,000.00). Five (5) years thereafter, such jurisdictional amounts shall be adjusted further to Three hundred thousand pesos (P300,000.00): Provided, however, That in the case of Metro Manila, the above-mentioned jurisdictional amounts shall be adjusted after five (5) years from the effectivity of this Act to Four hundred thousand pesos (P400,000.00).

This clearly shows that the case is not within the jurisdiction of the Regional Trial Court of Pili because RTC’s jurisdiction were doubled as of March 20, 1999 under Sec. 5 of RA 7691; Circular No. 21-99. The original amount of Php 100, 000.00 which was increased to Php 200,000.00 will be increased to Php 300,000.00 five (5) years thereafter. This is in accordance with Circular No. 21-99 which provides that;

The provisions of Section 5 of Republic Act No. 7691 prescribe that "After five years [5] from the effectivity of this Act, the jurisdictional amounts mentioned in Sec. 19 (3),(4), and (8),and Sec. 33(1) of Batas Pambansa Blg. 129 as amended by this Act, shall be adjusted to Two hundred thousand pesos [P200,000.00]. Five (5) years thereafter, such jurisdictional amounts shall be adjusted further to Three hundred thousand pesos [P300, 000.00]: Provided, However, that in the case of Metro Manila, the abovementioned jurisdictional amounts shall be adjusted after five [5] years from the effectivity of this Act to Four hundred thousand pesos [P400, 000.00]."

xxx xxx xxx

Therefore, the said claim is not within the exclusive original jurisdiction of the Regional Trial Court.

PRAYER

WHEREFORE, it is respectfully prayed that the Complaint be dismissed for lack of jurisdiction over the subject matter of the claim. Other reliefs just and equitable are likewise prayed for.

University of Nueva Caceres, Naga City, Philippines, March 01, 2010

_______

March 01,2010

Legal Writing Class (7:30-8:30pm)

COPY FURNISHED:

______________

[1] . Section 1, Rule 16 of the 1997 Rules of Civil Procedure, as amended, provides:

Sec. 1. Grounds. Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:

x x x x x x x x x

b.) That the court has no jurisdiction over the subject matter of the claim.

[2] An Act Expanding The Jurisdiction Of The Metropolitan Trial Courts, Municipal Trial Courts, And Municipal Circuit Trial Courts, Amending For The Purpose Batas Pambansa, Blg. 129, Otherwise Known As The "Judiciary Reorganization Act Of 1980."

Elements of Expert Testimony

2010-12-19T16:29:00.000-08:00

Sharing this article that can be used for Legal Medicine Classes.

"When offering testimony as an expert witness, regardless of the witness' discipline, five distinct topic areas must be covered. These five areas are the witness' qualifications, the science practiced by the witness, the introduction and chain of custody of the evidence, the analysis or examination process, and the expert's opinion. By adequately covering each area in sequence, the witness will five the judge of the information necessary to understand the opinion presented.
The first area of testimony should always be the witness' qualifications. There are three ways to prove you are qualified. The first is by explaining the training you have had. Include formal education, such as college, as well as specialized classes in the science completed. The second way of proving your qualifications is through experience. Talk about how many years you have been doing the job, or how many cases you have examined. The third way of proving your expertise is through explaining how you have been tested and found competent. There are several ways you may have been tested. A test for certification in your field is one. Annual proficiency testing by your lab is another. Previous testimony itself is a way of showing that you have been found competent by the courts.
After testifying to your qualifications, you should next explain your science. This segment of testimony actually serves two purposes. First, you familiarize the judge with the basics they need to understand in order to appreciate you opinion. Second, by assuming the role of teacher, you reinforce your status as expert as set forth n the first segment of testimony. In testifying about your science, you may want to place special emphasis on the particular techniques in this case to set the stage for your testimony in the fourth area, the analysis or examination process. For example, if you are testifying to a latent print developed with Ninhydrin on a forged check, your discussion in area two would concentrate on chemical development on porous surfaces rather than an explanation of use of powders on nonporous surfaces.
The third area of testimony is the introduction of the evidence and establishment of correct chain of custody. In this regard, it is important to be certain that the wording chosen is literally correct and reflects only the extent to which you were personally involved. For example, in testifying to a latent print lift from the rearview mirror of the recovered stolen car, you would testify to "the fingerprint found on the rearview mirror" only if you actually found it there yourself. If someone else developed the latent print and submitted the lift to you for comparison, you would testify to "the latent print lift labeled 'rearview mirror'".
Once you have introduced the evidence, you would testify to the specific examination process in this case. Here, if you have laid the foundation well in testimony area two, the judge or jury will fell a sense f familiarity with your explanation.
Finally, you should testify to the conclusion you have reached as a result of your analysis or examination. If you have first established that you are an expert in your field, explained the science adequately, introduced the evidence correctly, and described your examination of the evidence, your conclusion will be understood and accepted by the judge or jury.
It is important to recognize that an expert witness should not be biased in the case. You should not stretch the meaning of the evidence nor overstate the meaning of the evidence. It is the attorney's responsibility to prove the case, not yours. The judge or jury should therefore understand the limitations of the evidence as well as the possible meaning.
Ideally, the calling attorney should follow a logical sequence in asking his questions. In reality, however, he or she may be unfamiliar with your science or with introducing expert testimony. If you cannot have a pretrial conference with the attorney, it helps to go to court with a suggested list of questions. Most attorneys are grateful for the help and will use your questions".

Legal Interview

2010-11-24T22:54:00.000-08:00

This is an example of an initial attorney-client interview.

LEGAL INTERVIEW

QUESTION AND ANSWER

This interview was conducted by Atty. ___________ in her Law Office located at Naga City. The complainant, A ____________________, went to her office last August 24, 2010 at 10:15 o’clock in the morning to file a complaint against SPO1 B ___________.

Here is the detailed interview:

Atty. : Hi, Good Afternoon. You look tired and it seems that you don’t have enough sleep. May I know what brought you here today?

Ms. A: I’m not really sure attorney. I’m still confused of what happened to me. I spent my three nights at the police station of Conception Pequena.

Atty. : Oh, I’m sorry to hear that. Can you tell me what happened? Why did you spend many nights at the said police station?

Ms. A: Well, here’s what happened. On August 20, 2010, at about 1:30 o’clock in the afternoon, I was driving along the road of Barangay Cararayan. When I was about in close proximity of the checkpoint along Barangay Cararayan, a policewoman in uniform, whom I later came to know as SPO1 B flagged the vehicle I was driving.

Atty. : And did you stop the car?

Ms. A: Of course, I do respect police officers so after seeing the signal I slow down driving the car and when I was already in the area of the check point I parked the car on the side of the road and I alighted the vehicle.

Atty. : And what does the policewoman told you why she stopped your car?

Ms. A: Nothing, she just asked me to open my car trunk.

Atty. : So, after parking your car on the side of the road. You got out of your car and this police officer approached you and instructed you to open your car trunk. Correct?

Ms. A: Yes.

Atty. : And what happened next? Did you open your car trunk?

Ms. A: With all respect, trust and confidence to the authority and law I willingly obeyed SPO1 B. There she saw the firearms. While she’s inspecting my car trunk I go back inside my car because my phone was ringing that time. So, I need to get it because I left it inside my car.

Atty. : You are saying that SP01 B saw firearms inside your car trunk?

Ms. A: Yes. There are two firearms inside my car trunk and I’m not denying it.

Atty. : And what happened?

Ms. A: I was inside my car to attend to my call however SPO1 B immediately opened my car door. I was shocked. I politely asked him what I did wrong but she strongly pulled me out of the car and told me to ride the police mobile vehicle and there she handcuffed me.

Atty. Duana: This police officer pulled you out of your car and handcuffed you?

Ms. A: Yes.

Atty. : Did she tell you why?

Ms. A: No. She didn’t tell me anything. I was gripped with fear and I was very nervous. With all confusion and fear I involuntarily and without thinking got into the police mobile vehicle.

Atty. : Did anyone saw what happened?

Ms. A: Yes. I was humiliated because many people witnessed the incident and I am so scared and troubled for I do not know what she will do to me, to my car and to all my important and vital documents inside my car.

Atty.: Do you know those people who saw what happened?

Ms. A: Yes, I happened to glance around, and among those bystanders I saw two of my former classmates looking my way.

Atty. : I know how it is and I feel sorry for what happened. So, after riding the police vehicle what happened? Where did she bring you?

Ms. A: She drove the police mobile car and after that I was astound to see that the vehicle parked outside the Police station of Barangay Concepcion Pequena.

Atty. : So, she brought you to the Police station of Barangay Concepcion Pequena?

Ms. A: Yes. After parking the vehicle outside of the police station, SPO1 B yelled at me saying “outside” and grab my hand, dragging me inside the cell of the Barangay Concepcion Pequena police station. I kept on asking what I did wrong but she just yelled at me saying “you know whats wrong”.

Atty. : Let me just verify, that she never told you anything inside the police car, during the travel nor even after she put you inside the cell?

Ms. A: She never said anything. She never told me why she brought me at the said police station. I was restrained to go out the police station of Concepcion Pequena even if I kept on asking why and what I did wrong.

Atty. : And what happened after she put you inside the cell? What did she do?

Ms. A: She left after that. It has been wee hour of August 21, 2010 already and I am so distressed and scared, I’ve been crying for help and mercy but no one is attending at my plea. SPO1 B is nowhere to be found. Exhaustion beat me to sleep, as I woke in the morning, I again asked for liberty. I asked for the presence of SPO1 B presence but she is not around.

Atty. : SP01 B, brought you to the Police Station August 20, 2010 and August 21 and 22, you’re still at the said police station? Is that right?

Ms. A: Yes. Another day has passed, same situation I was not told what I did wrong even with my consistent persistence of asking what I did wrong for me to be put in jail and prevented from going out.

Atty. : So, August 23, 2010 you’re still inside the cell and you still don’t know why you were brought and restrained in that police station?

Ms. A: Yes. It was already 4:00 a.m of August 24, 2010 when SPO1 B woke me up and told me get out and gave my car keys.

Atty.: Did she tell you anything during that time?

Ms. A: No. I immediately run out of the police station and there at the façade of the Concepcion Pequena Police station I saw my car parked. And hurriedly drove the car out of the said Police station.

Atty. : Prior to the arrest and detention, do you personally know SP01 B?

Ms. A : No, I don’t know her personally. And even during the arrest she never introduced herself. I only heard someone called her and I asked one police officer during my detention of her full name.

Atty. : So, this police officer you asked told you her full name?

Ms. A: Yes. But aside from that he did not mention anything and ignored me after that.

Atty. : Going back to the firearms. Is it true that you were carrying those firearms? And if yes, May I know why?

Ms. A : Yes, I did have two firearms inside my car trunk. Those firearms have a license and I did have special permit to carry firearms. And besides even though it’s a COMELEC checkpoint it’s not election period. So there’s no reason for her to accuse me of anything in connection to those firearms. My papers are complete all she need to do is just ask.

Atty. : It is so unfortunate that this happened to you. What is the next step that you want to do now?

Ms. A: Do you think that we have a case here?

Atty. : Definitely. We can file a criminal case of arbitrary detention penalized under Article 124 of the Revised Penal Code plus damages.

Ms.A : Then, let’s do it. I want this to be a lesson to her so that she will not abuse her authority and just detain anyone she want without telling him/her the reason.

Atty. : Not to worry, Ms. A. I will do my best in this case. We will file a complaint the soonest possible time. I will keep you updated about the case. Please leave your personal information, such as your address and contact numbers.

Ms. A: Thank you. Let us discuss other detail of the case sometime. I need to rest now. And about the financial matter, just forward to me the assessment and I will respond immediately.

Atty.: You’re Welcome and Thank you for the trust and confidence.

------end-----

Public Utility and Service in view of the Transpotation Law in The Philippines

2010-11-06T12:32:00.000-07:00

(a) What is a public utility?

A public utility is a business or service engaged in regularly supplying the public with some commodity or service of public consequence such as electricity, gas, water, transportation, telephone or telegraph service. Apart from statutes which define the public utilities that are within the purview of such statutes, it would be difficult to construct a definition of a public utility which would fit every conceivable case. As its name indicates, however, the term public utility implies a public use and service to the public. (Am. Jur. 2d V. 64, p.549.) (Albano vs Reyes)

(b) What is a public service?

The Public Service Act (CA No. 146 as amended) provides that the term public service "includes every person that now or hereafter may own, operate, manage, or control in the Philippines, for hire or compensation, with general or limited clientele, whether permanent, occasional or accidental, and done for general business purposes, any common carrier, railroad, street railway, traction railway, sub-way motor vehicle, either for freight or passenger, or both with or without fixed route and whatever may be its classification, freight or carrier service or any class, express service, steamboat, or steamship line, pontines, ferries, and water craft, engaged in the transportation of passengers and freight or both, shipyard, marine repairshop, [warehouse], wharf or dock, ice plant, ice refrigeration plant, canal, irrigation system, gas, electric light, heat and power, water supply and power, petroleum, sewerage system, wire or wireless communications system, wire or wireless broadcasting stations and other similar public services..." [Sec. 13(b)] (Albano vs Reyes)

Albano vs Reyes 175 SCRA 264

Fact: On 20 April 1987, the Phil. Ports Authority (PPA) adopted a resolution directing mgmt. to prepare the Invitation to Bid and all relevant bidding documents necessary for the public bidding of the development, mgmt., and operation of the Manila Intl. Container Terminal (MICT) and authorized the Board Chairman Secretary Reyes to oversee and implement the project.

Secretary Reyes created a 7-man MICT Bidding Committee to evaluate all bids and recommend to the Board the best bid. The PPA published the Invitation to Bid with the reservation that it had the right to reject any bid and to accept such bid it may deem advantageous to the govt.

Seven companies submitted bids. The Committee recommended that the contract be awarded to Intl. Container Terminal Services (ICTSI) on the ground that it offered the best technical and financial proposal. Secretary Reyes awarded the contract to ICTSI. Before the contract could be signed, two cases were filed questioning the legality or regularity of the bidding. The first was a special action for prohibition with prelim injunction filed by Alo, a concerned taxpayer. The second was a civil case for prohibition with prayer for TRO filed by Sharp Co. which actively participated in the bidding.

The President approved the proposed MICT contract. The PPA and ICTFSI perfected the contract. Rodolfo Albano, a member of the House of Representatives filed the present case assailing the award of the contract on the ground that since the MICT is a public utility, it needs a legislative franchise before it can legally operate as a public utility.

Issue : Wether or not a legislative franchise is necessary.

Held : NO. Petition dismissed.

A franchise specially granted by Congress is not necessary for the operation of the MICT by a private entity. A contract entered into by the PPA and such entity is substantial compliance with the law. 1. Executive Order No. 30 authorized the PPA to take over, manage and operate the MICT in accordance with PD 857 (Revised Charter of the PPA). PD 857 expressly empowers the PPA to provide services within Port Districts "whether on its own, by contract or otherwise." Therefore, under EO 30 and PD 857, the PPA may contract with ICTSI for the mgmt., operation and devt. of the MICT.

2. Even if the MICT be considered a public utility or a public service on the theory that it is a wharf or a dock as contemplated by the Public Service Act, its operation would not necessarily call for a legislative franchise. Legislative franchises are not required before each and every public utility may operate. The law has granted certain administrative agencies the power to grant licenses for or to authorize the operation of certain public utilities.

That the Consti provides that the issuance of a franchise for the operation of a public utility shall be subject to amendment, alteration or repeal by Congress does not necessarily imply that only Congress has the power to grant such authorization. There are several laws granting specified agencies in the Executive Dept. the power to issue such authorization for certain classes of public utilities. [ 1. LTFRB wrt Certificates of Public Convenience authorizing the operation of public land transportation services provided by motorized vehicles; 2. ERB wrt operation of electric power utilities and services except electric coops]

Reading EO 30 and PD 857 together, the PPA has been empowered to undertake by itself or to authorize the operation and mgmt. of the MICT by another by contract. The latter power having been delegated to the PPA, a legislative franchise is no longer necessary. In this case, the PPA's contracting with ICTSI is wholly within its jurisdiction and powers.

3. The award of the contract to ICTSI is all the authorization that is necessary. The award made by the PPA and the President enjoys the presumption of validity and regularity of official action. There is no evidence to the contrary.

4. Albano has standing to assail the contract. While the expenditure of public funds may not be involved under the contract, public interest is definitely involved considering the important role of the MICP in the economic devt. of the country and the magnitude of the amount involved. He has sufficient standing since a public right (disclosure provision) is sought to be enforced.

5. There in no conflict among the 3 branches of govt. The Executive Dept. has not contravened an act of Congress. There is no usurpation of powers of another branch.

6. The determination of the winning bid should be left to the sound judgment of the PPA. It is in the best position to evaluate the bids. It has the technical expertise which neither the Court nor Congress has. No abuse of discretion has been shown.

Audio Reviewer - International Declaration on Human Rights

2010-11-06T00:20:00.000-07:00

Some students prefer to record class discussions or just record their voice while reading.
They claim that it helps in learning while you listen and eventually if you repeatedly listen to the recording it will come handy when you need it.
To help law students, Im gonna post a link for you to be able to download starting now.
Just click the link and follow the steps.

International Declaration on Human Rights

http://www.ziddu.com/download/10825071/human_rights_un_eng_drb.mp3.html

Case Digest on Legal Ethics (second part)

2010-11-05T00:43:00.000-07:00

Second Case:

Elmer Canoy, complainant v. Atty. Jose Max Ortiz, respondent

A.C. No. 5485 March 16, 2005

Facts

This is a case wherein complainant Elmer Canoy accused his former counsel, Atty. Jose Max Ortiz of misconduct and malpractice. In 1998, Canoy filed a complaint for illegal dismissal against his former employer, Coca Cola Bottlers Philippines, and was represented in said case by Atty. Ortiz. Canoy, explained Ortiz, was one of his indigent clients, in that it was the latter’s practice since commencing his practice of law to cater to indigent and law-income clients. In the labor case against CCBP filed with the National Labor Relations Commission, the labor arbiter ordered the parties to submit their respective petition papers. Canoy submitted all the necessary documents and records to Atty. Ortiz for the preparation of the position paper. Canoy made several follow-ups with the office of his attorney, said visits were unfruitful until it came to his knowledge on 2000, upon inquiring with the NLRC itself, that his complaint was already dismissed way back in 1998 for failure to prosecute because the parties did not submit their position papers. Atty. Canoy further claimed that Atty. Ortiz never informed him about the status of his case nor of the fact that he failed to submit the position paper.

In his Comment, Atty. Ortiz admitted to not being able to submit the position paper because the period within which to file it lapsed already, with arbiter already dismissing the case, but reasoned out that his election as a Councilor of Bacolod City made him very preoccupied with his functions. His duties as a public servant and a lawyer are “beyond physical limitation”, said Atty. Ortiz, so he had to withdraw from his other cases. He also claimed of not being able to remember whether he immediately informed Canoy of the dismissal of the case, but recalled of Canoy conveying that he already has a lawyer to handle the case. Hence, his office did not insist on refiling the case. Atty Ortiz also pointed out that the dismissal of Canoy’s complaint was without prejudice.

Issue

Whether or not Atty. Ortiz is guilty of misconduct and malpractice

Ruling

Upon investigation of the case, the Integrated Bar of the

Philippines

concluded that clearly “Atty. Ortiz failed to exercise the degree of competence and diligence required of him in prosecuting his client” and recommended that Atty. Ortiz be reprimanded. The Supreme Court, however, finds the recommended penalty of the IBP too lenent and instead suspended Atty. Ortize from the practice of law for one month, in lieu of the admonition or reprimand. According to the Court, Atty Ortiz several canons and rules in the Code of Professional Responsibility. Specifically, Atty. Ortiz was guilty of violating Rule 18.03 of the Code, which states, “A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable,” on account of his failure to file the position paper on time, tantamount to neglecting a legal mater entrusted to him. That the case was dismissed without prejudice does not mitigate his liability. Further, Ortiz also violated Rule 22.02, which states,“A laywer shall withdraw his services only for good cause and upon notice appropriate in the circumstances.” Therefore, even if Atty. Ortiz was justified in terminating his services due to his elective position, he should have coordinated with the new council of Canoy and turned over to the latter all papers and property which the Client is entitled and should have cooperated with his successor in the orderly transfer of the matter, as per Rule 22.02.

Case Digest on Legal Ethics (first part)

2010-11-04T23:33:00.000-07:00

"Legal Ethics is the branch of moral science which treats of the duties which an attorney owes to the court, to his client, to his colleagues in the professin and to the public.

Legal Ethics will guard agaisnt the abuses and ills of the profession such as dishonesty, deceit, immorality, negligence, slothness, lack of diligence and the many forms of malpractice of the members of the bar.

On the positive side, it will raise the standard of the legal profession, encourage and enhance the respect for the law, assure an effective and efficient administration of justice, assist in the keeping and maintenance of law and order in coordination with the other departments of government.

It also provides the basis for weeding out the unfit and misfits in the legal profession for the protection of the public".

Let me now share to you some of my case digest.

First Case:

Marcial Abiero, complainant v. Atty. Bernardo G. Juanino, respondent

A.C. No. 5302, February 18, 2005

Facts

Complainant Marcial Abrero engaged the services of respondent as counsel de parte in NLRC NCR OCW case. The Labor Arbiter ruled in favor of the complainant but the National Labor Relations Commission reversed the arbiter’s decision on appeal, dismissing the case for lack of merit. The respondent filed with the Court of Appeals a motion for extension of time to file a petition for review and paid the docket fee, but it was soon discovered by the complainant that the Petition for Review was never filed by the respondent and that the NLRC decision became final and executory. This prompted herein complainant to file this administrative case against respondent, charging the latter with negligence in connection with a legal matter entrusted to him.

In his Comment, Atty. Juanino explained, among others, that there was indeed error on his (respondent’s) oart when instead of filing a Petition for Cetiorari as originally intended, he chose to pursue another course of action which is the filing of a Motion for Execution to enforce the Labor Arbiter’s decision against the other respondents who did not appeal said decision. He, however, pleads good faith and that he tried his best to win the complainant’s labor. Still, herein complainant asserted that the respondent made several promises regarding the status of the Petition for Review but nothing came out of said promises.

The Commission on Bar Discipline of the Integrated Bar of the Philippines held that the respondent, due to his failure to file the petition for review, breached Canons 17 and 18 of the Code of Professional Responsibility, and recommended that respondent be suspended from the practice of law for a period of six months. It was held that there was no sufficient justification for respondent’s failure to file the petition for review with the Court of Appeals and the fact that se was seeking another legal remedy did not justify his failure to file the petition within the prescribed period. His failure to comply with his legal duty as counsel caused damage and prejudice to his client.

Issue

Whether or not respondent violated Canons 17 and 18 of the Code of Professional Responsibility

Ruling

The Supreme Court agreed with the findings of the IBP Investigating Commissioner, explaining that the failure to appeal to the Court of Appeals despite instructions by the client to do so constitutes negligence on the part of the counsel. The respondent did not serve his client with diligence and competence in that he neglected a legal matter entrusted to him by his client, and for such inexcusable negligence, he is liable for violations of Canons 17 and 18 of the Code of Professional Responsibility. Moreover, his failure to maintain an open line of communication with his client was also in direct contravention with Rule 18.04 of the Code, which requires a lawyer to keep his client informed of the status of his case and respond within reasonable time to the client’s request for information.