(Question A.2, Legal and Judicial Ethics, 2019 Bar Exam)
Y, who is a businessman, and Atty. X are good friends. Due to their closeness, Atty. X was able to borrow ₱300,000.00 from Y, which amount was intended to refurbish Atty. X’s law office.
Months after, Y got into a contractual dispute with Z, one of his business partners. Hence, Y sought the legal services of Atty. X for the filing of the proper action against Z. In consideration for his legal services, Y paid Atty. X an acceptance fee of ₱50,000.00.
Unfortunately, Atty. X and Y’s relationship turned sour. Thus, all communications between them were cut, and worse, Atty. X failed to file the required initiatory pleading against Z on the date agreed upon. Aggrieved, Y filed an administrative complaint, seeking that Atty. X be sanctioned and that the ₱50,000.00 acceptance fee and the ₱300,000.00 personal loan be returned to him.
(a) What administrative violation/s did Atty. X commit, if any? Explain. (3%)
(b) May Y’s prayer for the return of the ₱50,000.00 acceptance fee and the ₱300,000.00 personal loan prosper? Explain. (5%)
(a) Atty. X violated the prohibition against negligence. Answer
Under the Code of Professional Responsibility, a lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. Rule
In the case at bar, Atty. X had accepted the engagement and has already been paid by Y to initiate a case against Z. Failure on the part of Atty. X to file the required pleading against Z on the date agreed upon renders Atty. X liable for violation. Apply
Thus, Atty. X may be held liable for his negligence. Conclusion
As to the Php300,000.00 loan, based on the facts, Atty. X borrowed the sum prior to Y being made a client. There was no attorney-client relationship between them yet. Further, there is also no indication that Atty. X refused to pay the loan nor are there any interests of Y as a client were prejudiced. Under the Code of Professional Responsibility, a lawyer shall not borrow money from his client unless the client’s interests are fully protected by the nature of the case or by independent advice. Thus, there was no violation resulting from the loan.
(b) The prayer for acceptance fee may prosper, but not the personal loan. Answer
Under the Code of Professional Responsibility, a lawyer shall deliver the funds and property of his client when due or upon demand. Rule
In the case at bar, Y as a client made a judicial demand for the acceptance fee via the administrative case. Since Atty. X did not perform any professional service, he must return the amount to Y. As for the personal loan, Y has to institute a separate action for a collection of sum of money since the amount was not given under an attorney-client relationship. Instead, the personal loan is an ordinary loan by a borrower from a creditor Apply
Thus, the prayer for the acceptance fee may prosper. However, the prayer for personal loan will not prosper. Conclusion
(Notice: The suggested answers simulate those that a bar examinee may provide, and thus specific citations are not provided. Notwithstanding, in the reviewers, the bar exam question is answered under the appropriate topic which discusses the concepts and principles, as well as provide for specific citations. Accordingly, please refer to it on the reviewer or in the Library.)
Lawyer, Author, Mentor