1 Ethics

San Beda College of Law 1 MEMORY AID

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I. LEGAL ETHICS PRELIMINARY MATTERS Legal Ethics – branch of moral science whic wh ich h trea treats ts of the the duti duties es wh whic ich h an attorney owes to the court, to his client, to his colleagues in the profession and to the public. - It is the the embo embodi dime ment nt of all all princi principles ples of morali morality ty and refine refinemen mentt that should govern the conduct of every member of the bar. PRIM PRIMAR ARY Y CHAR CHARAC ACTE TERI RIST STIC ICS S WHIC WH ICH H DISTIN DISTINGUI GUISH SH THE LEGAL LEGAL PROFES PROFESSIO SION N FROM BUSINESS 1. A duty duty of of publi public c ser servi vice ce 2. A relati relation on,, as an “off “offic icer er of the the court”, to the administration of just justic ice e invo involv lvin ing g thor thorou oug gh sincerity, integrity and reliability 3. A rela relattion ion to clie clien nts wit with the highest degree of fiduciary 4. A relat relatio ion n to the the coll collea eagu gues es at the bar characterized by candor, fair fairne ness ss and and unwi unwill llin ingn gnes esss to reso esort to current ent bus business meth method odss of adve adverrtisi tisin ng and encroachment on their practice, or deali dealing ng dire direct ctly ly with with thei theirr clients.

PRACTICE OF LAW CASE: Any activity in or out of court which which requir requires es the applic applicati ation on of law, law, legal legal princi principle, ple, practi practice ce or procedu procedure re and calls for legal knowledge, knowledge, training training and experience. experience. (Cayetano (Cayetano vs Monsod, Monsod, 201 SCRA 210) Stric trictl tly y spea speaki king ng,, the word ord practice of law implies the customary or habitual habitual holding of oneself oneself to the public public as a lawyer and demanding compensation for his services. [People vs. Villanueva 14 SCRA 111]

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ESSENTIAL CRITERIA DETERMINATIVE OF ENGAGING IN THE PRACTICE OF LAW: (HACA) implies abitualityH abituality customarily or habitually holding ones oneself elf out to the publ public ic as a lawyer 2. Compensation- implies that that one must must have have presen presented ted himself elf to be in the active practice and that his professional serv servic ices es are are avai availa labl ble e to the the publi public c for for comp compens ensat atio ion, n, as a sour source ce of his his live livelih lihoo ood d or in consideration of his said services. 3. Application of law, legal principle, practice, or procedure which calls for legal knowledge, training and experience – client 4. Attorney relationship 1.

PRIVATE PRACTICE Priv Privat ate e prac practi tice ce is more more than than an isolat isolated ed appeara appearance nce for it consis consists ts of freq freque uen nt or custom stomar ary y acti action ons, s, a succession of acts of the same kind. NOTE: An isolated appearance does not amount to practice of law of a public offi office cerr if allow allowed ed by his his supe superi rior or in exceptional cases. NOTE: The The prac practi tice ce of law law is not not a natural, property or constitutional right but a mere privilege. It is not a right granted to any one who demands it but a privilege to be extended or withheld in the exercise of sound judicial discretion. It is in the nature of a franchise conferred only for merit which must be earned by hard study, learning and good conduct. It is a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness. Those Those standa standards rds are neithe neitherr dispen dispensed sed with with nor lowered lowered after after admiss admission ion.. The attorney’s attorney’s continued continued enjoyment enjoyment of the privile privilege ge confer conferred red depends depends upon upon his

PRACTICAL EXERCISES COMMITTEE

CHAIRPERSON : Jackie Lou Bautista ASSISTANT CHAIRPERSON : Catherine Jane Vanilla SUBJECT HEADS: Ma. Ricasion Tugadi (Legal Ethics), Mary Wendy Duran(Practical Exercises) EDP: Raphy Espiritu MEMBERS: John Dale Balinan, Malou Barrios, Catherine Bool-Nuňez, Melanie Caparas, Kristian Cristobal, Remegio Dayandayan, Jr., Gerald dela Cruz, Donna Dumpit, JB Roselle Roselle Gayona, Gayona, Rhea Mangubat, Mangubat, Joyce Joyce Marie Marie Marquez, Marquez, Rowena Mutia, Mutia, Maan Salada, Melamy Salvadora Salvadora,, VinKristine Ventura

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2005 CENTRALIZED B AR OPERATIONS

complying with the ethics and rules of 333the profession. But But prac practi tice ce of law law is in the the nature of a right. While the practice of law is a privilege, a lawyer cannot be prevented from practicing law except for valid valid reaso reasons, ns, the practi practice ce of law not being a matter of state’s grace or favor. He holds office during good behavior and can only be deprived of it for misconduct ascertained and declared by judgment of the Supreme Court after opportunity to be hear heard d has has been been affo afford rded ed him. him. The The state cannot exclude an attorney from the practice of law in a manner or for reasons that contravene the due process or equa equall prot protec ecti tion on clau clause se of the Constitution.

POWER TO REGULATE THE PRACTICE OF LAW CASES: The Constitution [Art. VIII, Sec. 5(5)] vests 5(5)] vests this power of control and regulation regulation in the Supreme Supreme Court Court. The constitutional power to admit candidates to the the lega legall prof profes essi sion on is a judi judici cial al functi function on and involv involves es the exercis exercise e of discretion discretion.. Petition Petition to that that end is filed filed with with the the Supr Suprem eme e Cour Courtt as are are othe otherr procee proceedin dings gs invoki invoking ng judici judicial al functi function on [In re: Almacen 31 SCRA 562] The SC acts through a Bar Examination Committee in the exercise of its judicial function to admit candidates to the legal profession. Thus, the Committee is composed of a member of the Court who acts as Chairman and 8 members of the bar who acts as examiners in the 8 bar subjects with one subject assigned to each. each. [In re Lanuevo, 66 SCRA 245] The power of the SC to regulate the practice of law includes the authority to: 1. Defi efine th the ter term m 2. Pres Prescr crib ibe e the quali qualifi fica cati tion onss of a candidate to and the subjects of the bar examinations 3. Deci Decide de who who will will be admit admitte ted d to practice 4. Disc Discip ipli line ne,, suspe suspend nd or disbar disbar any any unfit unfit and unw unwort orthy hy member member of the bar 5. Reinstate any disbarred or indefinitely suspended attorney

6. Orda Ordain in the the inte integr grat atiion of the the Philippine Bar 7. Puni Punish sh for for contem contempt pt any any perso person n for unauthorized practice of law 8. Exer Exerci cise se over overal alll supe superv rvis isio ion n of the legal profession 9. Exer Exerci cise se any any othe otherr powe powerr as may may be neces ecesssary ary to elev eleva ate the the standards of the bar and preserve its integrity. On the other hand, t he the exer exerci cisse of its LEGISLATURE, in the POLI POLICE CE POWER POWER may, may, howe however ver,, enac enactt laws laws regula regulatin ting g the practi practice ce of law to prot protec ectt the the publ public ic and and prom promot ote e the the public welfare. But the legislature MAY NOT pass a law that will control the SC in the perfor performan mance ce of its functio function n to decide who may enjoy the privilege of practicing law and any law of that kind is unconstitutional as an invalid exercise of legislative power.

WHO MAY PRACTICE LAW? Any Any per person son heret eretof ofor ore e duly duly admit admitted ted as a memb member er of the the bar, bar, or hereafter admitted as such in accord accordanc ance e with with the provis provision ionss of this this rule, rule, and wh who o is in good good and and regu regula larr standi standing, ng, is entitl entitled ed to practi practice ce law. law. [Sec. 1, Rule 138]

REQUIREMENTS BEFORE A CAND CANDID IDAT ATE E CAN CAN ENGA ENGAGE GE IN THE THE PRACTICE OF LAW I. He must must have been been admitt admitted ed to the Bar a. Furn Furnis ishi hing ng satis satisfa facto ctory ry proof proof of educ educat atio iona nal, l, mora morall and and othe otherr qualification; b. Pas Passing ing th the ba bar c. Taki Taking ng the the Lawyer Lawyer’s ’s Oath Oath befo before re the SC A lawyer’s oath signifies that the lawyer in taking such an oath accepts accepts and affirm affirmss his ethica ethicall obligations in the performance of his duties as a lawyer and signifies signifies likewise likewise his awareness awareness of his his resp respon onsi sibi bili liti ties es that that he

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE

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SUBJECT CHAIRPERSONS

Maricel Maricel Abarentos Abarentos (Over-all Chairperson), Ronald Ronald Jalmanzar Jalmanzar (Over-a (Over-all ll Vice Vice Chair) Chair),, Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics). Jonathan Mangundayao (Politica Francis Benedict Benedict Reotutar Reotutar (Labor Romuald Padilla Padilla (Civil (Politicall Law), Law), Francis (Labor Law), Law), Romuald (Civil Law), Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

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complying with the ethics and rules of 333the profession. But But prac practi tice ce of law law is in the the nature of a right. While the practice of law is a privilege, a lawyer cannot be prevented from practicing law except for valid valid reaso reasons, ns, the practi practice ce of law not being a matter of state’s grace or favor. He holds office during good behavior and can only be deprived of it for misconduct ascertained and declared by judgment of the Supreme Court after opportunity to be hear heard d has has been been affo afford rded ed him. him. The The state cannot exclude an attorney from the practice of law in a manner or for reasons that contravene the due process or equa equall prot protec ecti tion on clau clause se of the Constitution.

POWER TO REGULATE THE PRACTICE OF LAW CASES: The Constitution [Art. VIII, Sec. 5(5)] vests 5(5)] vests this power of control and regulation regulation in the Supreme Supreme Court Court. The constitutional power to admit candidates to the the lega legall prof profes essi sion on is a judi judici cial al functi function on and involv involves es the exercis exercise e of discretion discretion.. Petition Petition to that that end is filed filed with with the the Supr Suprem eme e Cour Courtt as are are othe otherr procee proceedin dings gs invoki invoking ng judici judicial al functi function on [In re: Almacen 31 SCRA 562] The SC acts through a Bar Examination Committee in the exercise of its judicial function to admit candidates to the legal profession. Thus, the Committee is composed of a member of the Court who acts as Chairman and 8 members of the bar who acts as examiners in the 8 bar subjects with one subject assigned to each. each. [In re Lanuevo, 66 SCRA 245] The power of the SC to regulate the practice of law includes the authority to: 1. Defi efine th the ter term m 2. Pres Prescr crib ibe e the quali qualifi fica cati tion onss of a candidate to and the subjects of the bar examinations 3. Deci Decide de who who will will be admit admitte ted d to practice 4. Disc Discip ipli line ne,, suspe suspend nd or disbar disbar any any unfit unfit and unw unwort orthy hy member member of the bar 5. Reinstate any disbarred or indefinitely suspended attorney

6. Orda Ordain in the the inte integr grat atiion of the the Philippine Bar 7. Puni Punish sh for for contem contempt pt any any perso person n for unauthorized practice of law 8. Exer Exerci cise se over overal alll supe superv rvis isio ion n of the legal profession 9. Exer Exerci cise se any any othe otherr powe powerr as may may be neces ecesssary ary to elev eleva ate the the standards of the bar and preserve its integrity. On the other hand, t he the exer exerci cisse of its LEGISLATURE, in the POLI POLICE CE POWER POWER may, may, howe however ver,, enac enactt laws laws regula regulatin ting g the practi practice ce of law to prot protec ectt the the publ public ic and and prom promot ote e the the public welfare. But the legislature MAY NOT pass a law that will control the SC in the perfor performan mance ce of its functio function n to decide who may enjoy the privilege of practicing law and any law of that kind is unconstitutional as an invalid exercise of legislative power.

WHO MAY PRACTICE LAW? Any Any per person son heret eretof ofor ore e duly duly admit admitted ted as a memb member er of the the bar, bar, or hereafter admitted as such in accord accordanc ance e with with the provis provision ionss of this this rule, rule, and wh who o is in good good and and regu regula larr standi standing, ng, is entitl entitled ed to practi practice ce law. law. [Sec. 1, Rule 138]

REQUIREMENTS BEFORE A CAND CANDID IDAT ATE E CAN CAN ENGA ENGAGE GE IN THE THE PRACTICE OF LAW I. He must must have been been admitt admitted ed to the Bar a. Furn Furnis ishi hing ng satis satisfa facto ctory ry proof proof of educ educat atio iona nal, l, mora morall and and othe otherr qualification; b. Pas Passing ing th the ba bar c. Taki Taking ng the the Lawyer Lawyer’s ’s Oath Oath befo before re the SC A lawyer’s oath signifies that the lawyer in taking such an oath accepts accepts and affirm affirmss his ethica ethicall obligations in the performance of his duties as a lawyer and signifies signifies likewise likewise his awareness awareness of his his resp respon onsi sibi bili liti ties es that that he


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San Beda College of Law 3 MEMORY AID assumes by his admission to the legal profession. d. Sign Signin ing g the the Atto Attorn rney ey’s ’s Roll Roll and and receiving from the Clerk of Court of the the SC a Cert Certif ific icat ate e of the the license to practice II. II. Afte Afterr his his admi admiss ssio ion n to the the bar, bar, a lawyer must remain in good and regular standing, which is a continuing requirement for the practice practice of law. He must: a. Remain a member of the IBP (member (membersh ship ip therei therein n by every every attorney is made compulsory); b. Regula Regularly rly pay all IBP member membershi ship p dues and other lawful ass assessm essmen ents ts,, as well ell as the the annual privilege tax; c. Fait Faithf hful ully ly obse observ rve e the rul rules es and and ethics ethics of the legal legal profes professio sion; n; and d. Be cont continu inually ally subjec subjectt to judi judicia ciall disciplinary control.

BASIC REQUIREMENTS ADMISSION TO THE BAR

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Under Section 2, 5 and 6, Rule 138, the applicant must be: 1. Citizen of the Philippines; 2. At least 21 years of age; 3. Of good g ood moral mo ral character cha racter ; This is a conti ontinu nuin ing g (Note: This requirement.) 4. Resident of the Philippines; 5. Must produce before the SC satisfactory satisfactory evidence of good moral character; 6. No charges against him, involving involving moral turpitude, have been filed or are pending in any court in the Phil. [Sec. 2, Rule 138] ; 7. Must have complied with the academic requirements; 8. Pass the ba r examinations.

Moral Moral Turpitude Turpitude – impo import rtss an act act of basene baseness, ss, vilenes vilenesss or depravi depravity ty in the duties which one person owes to another or to society in general which is contrary to the usually accepted and customary LEGAL ETHICS

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rule rule of right and duty wh which ich a person person should follow.

ACADEMIC REQUIREMENTS FOR THE CANDIDATES 1. Must have already earned earned a Bachel Bachelor’ or’ss Degree Degree in Arts or Sciences (Pre-law) 2. Law Course – completed courses in Civil Law, Commercial Law, Law, Remed Remedia iall Law, Law, Crim Crimin inal al Law, Law, Publ Public ic and and Inter Interna nati tion onal al Law, Law, Politi Political cal Law, Law, Labor Labor and Soci ocial Legis egisla lati tion on,, Medi edical cal Jurispruden Jurisprudence, ce, Taxation, Taxation, Legal Ethics. [Sec. 5 and 6, Rule 138]

APPEARANCE APPEARANCE OF NON-LAWYER IN COURT MAY A NON-LAWYER APPEAR IN COURT? General General Rule: Only Only thos those e wh who o are are licensed to practice law can appear and handle cases in court.

Exceptions: 1. Befor Before e the the MTC MTC - a party may

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cond conduc uctt his his case case or liti litiga gati tion on in person with the aid of an agent agent or friend friend appoin appointed ted by him. him. [Sec. 34, Rule 138] Before Before any court court – a par party may conduc conductt his litiga litigatio tion n person personally ally.. But he gets someone to aid him and that someone must be an authorized member of the Bar [Sec. [Sec. 34, 34, Rule Rule 138] . He is bound by the same rules in conducting the trial of his case. He cannot cannot,, after after judgme judgment, nt, claim claim that he was not properly represented. In a criminal case before the MTC – in a locality where a duly licensed member of the Bar is not available, the judge may appoint a non-lawyer who is a resident of that province, of good repute for probity and ability to the accused in his defense. [Sec. 7, Rule 116] Stud Studen entt Prac Practi tice ce Rule Rule - A law student who has successfully completed his 3 rd year of the regular 4-year prescribed law curriculum and is enro enroll lled ed in a recog ecogni niz zed law law



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school’s clinic clinical al legal legal educat education ion program approved by the SC – may appear without compensation in any civil, criminal or administrative case befor before e any any tria triall cour court, t, trib tribun unal al,, boar board d or offi office cerr, to repr repres esen entt indig indigen entt clie client ntss acce accept pted ed by the the Legal Clinic of the school. [Sec. 1, Rule 138-A] 138-A] The student student shall shall be under under the the dire direct ct super supervi visi sion on and and control of a member of the IBP duly accredited by the law school. [Sec. 2] Under the Labor Code – non-lawyers may appear before the NLRC or any Labor Labor Arbiter Arbiter if they they (a) repres represent ent them themse selv lves es;; (b) (b) repr repres esen entt thei theirr orga organi niza zati tion on or member memberss ther thereof eof [Art. 222, PD 442] A non-l on-law awye yerr may repr epresen esentt a claimant before the Cadastral Court [Sec. 9, Act. No. 2259] Any person appointed to appear for the government of the Philippines in accordance with law [Sec. 33, Rule 138]

LIMITATIONS ON APPEARANCE OF NONLAWYERS BEFORE THE COURTS 1. He shou should ld conf confin ine e his his work work to non-advers non-adversary ary contention contentions. s. He shou should ld not not unde undert rtak ake e pure purely ly legal work, such as the examination or crossexamination of witnesses, or the presentation of evidence. 2. Services should not be habitually rendered. 3. Shoul hould d not char harge or coll collec ectt attor attorney’ ney’ss fees. fees. [PAF [PAFLU LU vs. vs. Binalbagan Isabela Sugar Co. 42 SCRA 302] RIGHT OF PARTY TO REPRESENT HIMSELF Civil Cases: An individual litigant has the right to conduct his litigation personally. Criminal Cases: Involving Involving grave and less grav grave e offe offens nses es,, an accu accuse sed d wh who o is a layman must always appear by counsel; he CANNOT conduct his own defense, defense, as his right to counsel may NOT be waived without violating his right to due process of law. By a Juridical Person: A juridical person must always appear in court by a duly

licensed member of the bar, except in the municipal trial court where it may be represented by its agent or officer who need not be a lawyer.

PART PARTNE NERS RSHI HIP P WITH WITH NONNON-LA LAWY WYER ERS S VOID In the formation of partnership for the practice of law, no person should be admitted or held out as a practitioner or membe memberr wh who o is not a membe memberr of the lega legall prof profes essi sion on duly duly auth author oriz ized ed to practice, practice, and amenable amenable to profession professional al discipline. PRACTICE BY CORPORATION CORPORATION It is well settled that a corporation CANNOT eng engage age in the the practice of law. It may, however, hire an attorn attorney ey to attend attend to and conduct conduct its own own legal legal busi busine ness ss or affa affair irs. s. But But it cannot practice law directly or indirectly by employing a lawyer to practice for it or to appear for others for its benefit. Reasons: 1. Natur ature e of the the priv privil ileg ege e and and on the the conf confid iden enti tial al and and trus trustt rela relati tion on between attorney and client. 2. A corp orpora oratio tion canno annott perf perfor orm m the conditions required for membership in the bar, such as the possession of good good mora morall char charac acte terr and and other other special disqualifications, the taking of an oath and becoming an officer of the court, subject to its discipline, suspension or removal. 3. The The re rela lati tion on of of trus trustt and and conf confid iden ence ce cannot arise where the attorney is emp employe loyed d by a corpo orporratio ation n to practice practice for it, his employer and he owin owing, g, at best best,, a seco second ndar ary y and and divided loyalty to the clientele of his corporate employer. 4. The The inter interve vent ntio ion n of the the cor corpo pora rati tion on is destru destructi ctive ve of that that confid confident ential ial and trust relation and is obnoxious to the law. PERSONS PERSONS AUTHORIZ AUTHORIZED ED TO REPRESENT REPRESENT THE GOVERNMENT Any official or other person appointed appointed or designated designated in accordanc accordance e with law to appear for the government of the Philippines or any of its officials shall hall have ave all all the the righ ights of a duly duly


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San Beda College of Law 5 MEMORY AID authorized member of the bar to appear in any case in which the government has an inte intere rest st,, dire direct ct or indi indire rect ct,, or in whic wh ich h such such offi offici cial al is char charge ged d in his his official capacity.

RULES ON PUBLIC OFFICIALS REGARDING PRACTICE OF LAW PUBLIC OFFICIALS WHO CANNOT PRACTICE LAW IN THE PHILIPPINES 1. Judges and other offi offici cial alss or empl employ oyees ees of the the superior court 2. Officials and employees of the the Offi Office ce of the the Soli Solici citor tor General 3. Government Prosecutors 4. President, VicePres Presid iden ent, t, membe embers rs of the the Cabi Cabine net, t, thei theirr depu deputi ties es and and assistants 5. Chairmen an and me members of the Constitutional Commissions 6. Ombudsman and his deputies 7. Governors, city and municipal mayors 8. Those who, by special law are prohibited from engaging in the the prac practi tice ce of thei theirr legal legal profession PUBLIC PUBLIC OFFICIAL OFFICIALS S WITH RESTRICT RESTRICTIONS IONS IN THE PRACTICE OF LAW 1. Senato Senators rs and Members Members of the the House House of Representatives 2. Members of the Sanggunian 3. Retired Justice or Judge 4. Civil Civil Servic Service e office officers rs or employees employees without without permit permit from thei theirr resp respec ecti tive ve depa depart rtme ment nt heads [Nor [Norieg iega a vs. vs. Siso Sison n 125 125 SCRA 293] REST RESTRI RICT CTIO IONS NS IN THE THE PRAC PRACTI TICE CE OF LAW OF MEMBERS OF LEGISLATURE A lawyer lawyer-me -member mber of the CASES: legi legisl slat atur ure e is only only proh prohib ibit ited ed from from appearing as counsel before any court of just justic ice, e, elect elector oral al trib tribun unals als or quas quasiijudicial judicial and administra administrative tive bodies. bodies. The LEGAL ETHICS

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word word “appea “appearan rance” ce” includ includes es not only only arguing a case before any such body but also also fili filing ng a plead pleadin ing g on beha behalf lf of a clie client nt as “by “by simp simply ly fili filing ng a form formal al motion motion,, plea plea or answer answer”. ”. [Ramos [Ramos vs. Manalac 89 Phil 270] Neither can he allow his name to appear in such pleading by itself or as part of a firm name under the signature signature of another qualified lawyer because the signature of an agent amounts to signing of a non-qualified senator or congressman, the office of an attorney being originally of agency, and because he will, will, by such such act, act, be appe appear arin ing g in court or quasi-judicial or administrative body body in violat violation ion of the consti constitut tution ional al restri restricti ction. on. “He canno cannott do indirect indirectly ly what the Constit titution prohibits directly”. [In re: David 93 PHIL 461]

REST RESTRI RICT CTIO IONS NS IN THE THE PRAC PRACTI TICE CE OF LAW OF THE MEMBERS OF THE SANGGUNIAN They shall not: 1. Appear as counsel before any court in any civil case wherein wherein a local government government unit or any office, agency or instrumentality of the government is the adverse party; 2.App .Appea earr as cou counsel nsel in any criminal case wherein an officer or employee of the national or local local govern governmen mentt is accuse accused d of an offense committed in relation to his office; 3. Coll Colle ect any fee for their eir appe appear aran ance ce in admi admini nist stra rati tive ve proceedings proceedings involving the local government unit of which he is an official. [Sec. 90, R.A. 7160] 4. Use property and pers person onne nell of the the gove govern rnme ment nt exce except pt wh when en the the Sang Sanggu guni nian an member concerned is defending the interest of the government RESTRICTIONS IN THE PRACTICE OF LAW OF RETIRED JUSTICE/JUDGE As a condi onditi tio on of the the pen pension sion provided provided under R.A. R.A. 910, 910, no retiri retiring ng justice or judge of a court of record or city city or muni munici cipa pali lity ty judg judge e duri during ng the the time time that that he is receiving receiving said pensio pension n shall:



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Appear as counsel before any court in: a. Any civil case wherein the government or any subdivision or instrumentality thereof is the adverse party; b. Any criminal case wherein an officer or an employee of the government is accused of an offense committed in relation to his office. 2. Collect any fees for his appearance in any administrative proceedings to maintain an interest adverse to the government, provincial or municipal, or to any of its legally constituted officers [Sec 1, RA 910] .

REMEDIES AGAINST UNAUTHORIZED PRACTICE (DICED) 1. Petition for Injunction 2. Declaratory Relief 3. Contempt of Court 4. Disqualification and complaints for disbarment 5. Criminal complaint for estafa against a person who falsely represented to be an attorney to the damage of a party

PRIVILEGES AND DUTIES OF A LAWYER PRIVILEGES OF AN ATTORNEY: 1. To practice law during good behavior before any judicial, quasijudicial, or administrative tribunal. 2. The first one to sit in judgment on every case, to set the judicial machinery in motion. 3. Enjoys the presumption of regularity in the discharge of his duty. 4. He is immune, in the performance of his obligation to his client, from liability to a third person insofar as he does not materially depart from his character as a quasi-judicial officer. 5. His statements, if relevant, pertinent or material to the subject of judicial inquiry are absolutely privileged regardless of their defamatory tenor and of the presence of malice.

OTHER PRIVILEGES: First grade civil service eligibility for any position in the classified service in the government the duties of which require knowledge of law. Second grade civil service eligibility for any other government position which does not prescribe proficiency in law as a qualification. FOUR-FOLD DUTIES OF A LAWYER 1. Court- respect or defend against criticisms, uphold authority and dignity, obey order and processes, assist in the administration of justice. 2. Bar- candor, fairness, courtesy and truthfulness, avoid encroachment in the business of other lawyers, uphold the honor of the profession. 3. Client- entire devotion to client’s interest. Public- should not violate his 4. responsibility to society, exemplar for uprighteousness, ready to render legal aid, foster social reforms, guardian of due process, aware of special role in the solution of special problems and be always ready to lend assistance in the study and solution of social problems. SPECIFIC DUTIES OF A LAWYER (SEC. 20, RULE 138) [C2A2R 2E2D] 1. To maintain Allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines; To observe and maintain 2. the R espect due to the courts of justice and judicial officers; To Counsel and maintain 3. the respect due to the courts of justice and judicial officers; 4. To Employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law;


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Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics). Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 7 MEMORY AID To maintain inviolate the Confidence and at every peril to himself, to preserve the secrets in connection with his client and to accept no compensation in connection with his client’s business except from him or with his knowledge and approval; 6. To Abstain from all offensive personality and to advance no fact prejudicial to the honor and reputation of a party or witness, unless required by the justice of the cause with which he is charged; Not to Encourage either 7. the commencement or the continuance of an action or proceeding, or delay any man’s cause, from any corrupt motive or interest; 8. Never to R eject, for any consideration personal to himself, the cause of the defenseless or oppressed; In the Defense of a 9. 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. 5.

DUTY OF COUNSEL DE OFICIO A counsel de oficio is expected to render effective service and to exert his best efforts on behalf of an indigent accused. He has as high a duty to a poor litigant as to a paying client. He should have a bigger dose of social conscience and a little less of self-interest. ROLE OF PRIVATE PROSECUTOR A private prosecutor may intervene in the prosecution of a criminal action when the offended party is entitled to indemnity and has not waived expressly, reserved or instituted the civil action for damages. He may prosecute the accused up to the end of the trial even in the absence of the public prosecutor if authorized by the chief of the prosecution office or the LEGAL ETHICS

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Regional State Prosecutor subject to the approval of the court (Sec. 5, Rule 110; Rules of Court dated May 1, 2002).

THE LAWYER’S OATH I, ____________, do solemnly swear that I will maintain allegiance to the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the courts as to my clients; and I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God.

NOTARY PUBLIC A person appointed by the court whose duty is to attest to the genuineness of any deed or writing inorder to render them available as evidence of facts stated therein and who is authorized by the statute to administer various oaths.

A.M. No. 02-8-13-SC: Rules on Notarial Practice of 2004 ( August 1, 2004)

QUALIFICATIONS OF A NOTARY PUBLIC 1. Must be citizen of the Philippines 2. Must be over twenty-one (21) years of age 3. Must be a resident in the Philippines for at least one (1) year and maintains a regular place of work or business in the city or province where the commission is to be issued


CHAIRPERSON : Jackie Lou Bautista ASSISTANT CHAIRPERSON : Catherine Jane Vanilla SUBJECT HEADS: Ma. Ricasion Tugadi (Legal Ethics), Mary Wendy Duran(Practical Exercises) EDP: Raphy Espiritu MEMBERS: John Dale Balinan, Malou Barrios, Catherine Bool-Nuňez, Melanie Caparas, Kristian Cristobal, Remegio Dayandayan, Jr., Gerald dela Cruz, Donna Dumpit, JB Roselle Gayona, Rhea Mangubat, Joyce Marie Marquez, Rowena Mutia, Maan Salada, Melamy Salvadora, VinKristine Ventura

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4. Must be a member of the Philippine Bar in good standing with clearances from the Office of the Bar Confidant of the Supreme Court and the Integrated Bar of the Philippines 5. Must not have been convicted in the first instance of any crime involving moral turpitude (Rule III, Section 1)

JURISDICTION AND TERM A notary public may perform notarial acts in any place within the territorial jurisdiction of the commissioning court for a period of two (2) years commencing on the 1 st day of January of the year in which the commissioning is made UNLESS earlier revoked or the notary public has resigned according to these Rules and the Rules of Court (Rule III, Section 11). POWERS AND LIMITATIONS OF NOTARIES PUBLIC POWERS A notary public is empowered to do the following acts: (JAOSAC) 1. Acknowledgments; 2. Oaths and affirmations; 3. Jurats; 4. Signature witnessings; 5. Copy certifications; and 6. Any other act authorized by these Rules. A notary public is authorized to certify the affixing of a signature by thumb or other mark on an instrument or document presented for notarization if: 1. The thumb or other mark is affixed in the presence of the notary public and of two (2) disinterested and unaffected witnesses to the instrument or document; 2. Both witnesses sign their own names in addition to the thumb or other mark; 3. The notary public writes below the thumb or other mark: “Thumb or Other Mark affixed by (name of signatory by mark) in the presence of

(names and addresses of witnesses) and undersigned notary public”, and 4. The notary public notarizes the signature by thumb or other mark through an acknowledgment, jurat or signature witnessing. A notary public is authorized to sign on behalf of a person who is physically unable to sign or make a mark on an instrument or document if: 1. The notary public is directed by the person unable to sign or make a mark to sign on his behalf; 2. The signature of the notary public is affixed in the presence of two (2) disinterested and unaffected witnesses to the instrument or document; 3. Both witnesses sign their own names; 4. The notary public writes below his signature: “Signature affixed by notary in the presence of (names and addresses of person and two (2) witnesses)”, and 5. The notary public notarizes his signature by acknowledgment or jurat (Rule IV, Section 1).

PROHIBITIONS  General Rule: A notary public shall not perform a notarial act outside his regular place of work or business.  Exceptions: A notarial act may be performed at the request of the parties in the following sites located within his territorial jurisdiction: a. Public offices, convention halls and similar places where oaths of office may be administered; b. Public function areas in hotels and similar places for the signing of instruments or documents requiring notarization; c. Hospitals and medical institutions where a party to the instrument or document is confined for treatment; and


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San Beda College of Law 9 MEMORY AID d. Any place where a party to the instrument or document requiring notarization is under detention. A person shall not perform a notarial act if: 1. the person involved as signatory to the instrument or documenta. Is not in the notary’s presence at the time of the notarization; and b. Is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules (Rule IV, Section 2). 2. the certificate containing an information known or believed to be false; and 3. he shall not affix an official signature or seal on a notarial certificate that is incomplete (Rule IV, Section 5).

DISQUALIFICATIONS A notary public is disqualified from performing a notarial if he: 1) Is a party to the instrument or document; 2) Will receive, as a direct or indirect result any commission, fee, advantage, right, title, interest, cash, property, or other consideration, except as provided that is to be notarized; 3) Is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree (Rule IV, Section 3). When notary public may refuse to notarize even if appropriate fee is tendered: 1) When the notary knows or has good reason to believe that LEGAL ETHICS

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the notarial act or transaction is unlawful or immoral. 2) When the signatory shows a demeanor which engenders in the mind of the notary public reasonable doubt as to the former’s knowledge of the consequences of the transaction requiring a notarial act. 3) If in the notary’s judgment, the signatory is not acting in his/her own free will (Rule IV, Section 4). 4) If the document or instrument to be notarized is considered as an improper document by these Rules.

NOTE: A blank or incomplete instrument or document OR an instrument or document without appropriate notarial certification is considered an Improper Instrument/Document (Rule IV, Section 6). NOTARIAL CERTIFICATES Contents of the Concluding part of the Notarial Certificate: 1) The name of the notary public as exactly indicated in the commission; 2) The serial number of the commission of the notary public; 3) The words “Notary Public” and the province or city where the notary public is commissioned, the expiration date of the commission and the office address of the notary public; and 4) The Roll of Attorneys’ number, the Professional Tax Receipt number and the place and date of issuance thereof and the IBP Membership number (Rule VIII, Section 2). REVOCATION OF COMMISSION The Executive Judge shall revoke a commission for any ground on which an application for a commission may be denied. In addition, the Executive Judge may revoke the commission of or impose sanctions upon any notary public who: 1) Fails to keep a notarial register;



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2) Fails to make the appropriate 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 the 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 the revocation of the commission or imposition of administrative sanction (Rule XI, Section 1).

PUNISHABLE ACTS The Executive Judge shall cause the prosecution of any person who: 1) Knowingly acts or otherwise impersonates a notary public; 2) Knowingly obtains, conceals, defaces, or destroys the seal, notarial register, or official records of a notary public; and 3) Knowingly solicits, coerces, or in any way influences a notary public to commit

official misconduct (Rule Section 1).

XII,

TERMS TO REMEMBER Amicus Curiae- is an experienced and impartial attorney invited by the court to appear and help in the disposition of the issues submitted to it. It implies friendly intervention of counsel to call the attention of the court to some matters of law or facts which might otherwise escape its notice and in regard to which it might go wrong. An amicus curiae appears in court not to represent any particular party but only to assist the court. Amicus Curiae par excellence – bar associations who appear in court as amici curiae or friends of the court. Acts merely as a consultant to guide the court in a doubtful question or issue pending before it. Attorney ad hoc- a person named appointed by the court to defend an absentee defendant in the suit in which the appointment is made. Attorneys-At-Law – that class of persons who are licensed officers of the courts empowered to appear, prosecute and defend, and upon whom peculiar duties, responsibilities and liabilities are developed by law as a consequence. Attorney in fact- simply an agent whose authority is strictly limited by the instrument appointing him. His authority is provided in a special power of attorney or general power of attorney or letter of attorney. He is not necessarily a lawyer. Attorney of record- the attorney whose name is entered in the records of an action or suit as the lawyer of a designated party thereto. Bar and Bench – “Bar” refers to the whole body of attorneys and counselors collectively, the


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members of the legal profession: “Bench” denotes the whole body of judges. Bar Association – an association of members of the legal profession like the IBP where membership is integrated or compulsory.

Of Counsel – an experienced lawyer, usually a retired member of the judiciary, employed by law firms as consultants.

Client – one who engages the services of a lawyer for legal advice or for purposes of prosecuting or defending a suit in behalf and usually for a fee.

Practicing Lawyer – one engaged in the practice of law who by license are officers of the court and who are empowered to appear, prosecute and defend a client’s cause.

Counsel/Attorney de oficio – an attorney appointed by the court to defend an indigent defendant in a criminal action. In a criminal action, if the defendant appears without an attorney, he must be informed by the court that it is his right to have an attorney before being arraigned and must be asked if he desires the aid of an attorney. If he desires and is unable to employ an attorney, the court must assign a counsel de oficio to defend him. He is also designated as counsel of indigent litigants. The appointment of a counsel de oficio in that instance is a matter of right on the part of the defendant. On appeal in a criminal case, the appellate court must also appoint a counsel de oficio if, as shown by the certificate of the clerk of court of the trial court, a defendant (a) is confined in prison, (b) without means to employ an attorney, (c) desires to be defended de oficio.

Pro Se - an appearance by a lawyer in his own behalf.

House Counsel – one who acts as attorney for business though carried as an employee of that business and not as an independent lawyer. Lawyer – this is the general term for a person trained in the law and authorized to advice and represent others in legal matters Lead Counsel – the counsel on either side of a litigated action who is charged with the principal management and direction of a LEGAL ETHICS

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party’s case, as distinguished from his juniors or subordinates.

Trial Lawyer – one who personally handles cases in court, administrative agencies of boards which means engaging in actual trial work, either for the prosecution or for the defense of cases of clients.

II .THE CANONS OF PROFESSIONAL RESPONSIBILITY Chapter I: The Lawyer and Society CANON 1. Uphold the Constitution and obey the laws of the land 2. Make legal services available in an efficient and convenient manner 3. Use of true, honest, fair, dignified and objective information in making known legal services 4. Participate in the improvement of the legal system 5. Keep abreast of legal development and participate in continuing legal education program and assist in disseminating information regarding the law and jurisprudence 6. Applicability of the CPR to lawyers in the government service



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Chapter II: The Lawyer and the Legal Profession CANON 7. At all times uphold the integrity and dignity of the Profession and support the activities of the IBP 8. Conduct himself with courtesy, fairness and candor toward his colleagues and avoid harassing tactics 9. Not to directly or indirectly assist in the unauthorized practice of law Chapter III: The Lawyer and the Courts CANON 10. Owes candor, fairness and good faith to the court 11. Observe and maintain the respect due courts and judicial officers 12. Duty to assist in the speedy and efficient administration of justice 13. Rely upon the merits of his cause, refrain from any impropriety which tends to influence courts, or give the appearance of influencing the court Chapter IV: The Lawyer and the Client CANON 14. Not to refuse his services to the needy 15. Observe candor, fairness and loyalty in all his dealings and transactions with clients 16. Hold in trust all the moneys and property of his client that may come to his possession 17. Owes fidelity to clients cause and be mindful of the trust and confidence reposed in him 18. Serve client with competence and diligence 19. Represent client with zeal and within the bounds of law 20. Charge only fair and reasonable fees 21. Preserve the confidence and secrets of client even after the atty.-client relation is terminated

22. Withdraw services only for good cause and upon notice

LAWYER’S DUTIES TO SOCIETY CANON 1: UPHOLD THE CONSTITUTION AND OBEY THE LAWS OF THE LAND DISCOURAGING LAW SUITS Under Rule 1.03, a lawyer shall not for any corrupt motive or interest, encourage any suit or proceeding or delay any man’s cause. CRIME OF MAINTENANCE – A lawyer owes to society and to the court the duty not to stir up litigation. The following are unprofessional acts within the prohibition: 1. Volunteering advice to bring lawsuit except where ties of blood, relationship, and trust make it a duty to do so. 2. Hunting up defects in titles or other causes of action and informing thereof to be employed to bring suit or collect judgment, or to breed litigation by seeking out claims for personal injuries or any other grounds to secure them as clients. 3. Employing agents or runners for like purposes. 4. Paying direct or indirect reward to those who bring or influence the bringing of such cases to his office. 5. Searching for unknown heirs and soliciting their employment. 6. Initiating a meeting of a club and inducing them to organize and contest legislation under his guidance. 7. Purchasing notes to collect them by litigation at a profit. A lawyer shall refrain from committing barratry and ambulance chasing of cases.

Barratry – offense of frequently inciting and stirring up quarrels and suits. The lawyer’s act of fomenting suits among individuals and offering his legal services to one of them


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Ambulance Chasing – a lawyer’s act of chasing the victims of an accident for the purpose of talking to the same victim or the latter’s relatives and offering his legal services for the filing of the case against the person who caused the accident. Ambulance Chaser – is a lawyer who haunts hospitals and visits the homes of the afflicted, officiously intruding their presence and persistently offering his service on the basis of a contingent.

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A lawyer cannot General Rule: advertise his talent, as he is a member of an honorable profession whose primary purpose is to render public service and help secure justice and in which the remuneration is a mere incident. It is highly unethical for an attorney to advertise his talents or skill as a merchant advertises his wares. [In re: Tagorda 53 Phil 42]

Exceptions: Writing legal articles Engaging in business or other occupations except when such could be deemed improper, be seen as indirect solicitation or would be the equivalent of law practice. 3. Law lists, but only brief biographical and informative data 4. Ordinary, professional cards 5. Notice to other local lawyers and publishing in a legal journal of one’s availability to act as an associate for them 6. The proffer of free legal services to the indigent, even when broadcasted over the radio or tendered through circulation of printed matter to the general public. a public office, 7. Seeking which can only be held by a lawyer or, in a dignified manner, a position as a full time corporate counsel. 8. Simple announcement of the opening of a law firm or of changes in the partnership, associates, firm name or office address, being for the convenience of the profession. 9. Listing in a phone directory, but not under a designation of a special branch of law. 10. Activity of an association for the purpose of legal representation. 1. 2.

Ambulance chasing has spawned recognized evils such as: ( FSMD) 1. Fomenting of litigation with resulting burdens on the courts and the public. 2. Subornation of perjury. 3. Mulcting of innocent persons by judgments, upon manufactured causes of action. 4. Defrauding of injured persons having proper causes of action but ignorant of legal rights and court procedures by means of contracts which retain exorbitant percentages of recovery and illegal charges for court costs and expenses and by settlement made for quick returns of fees and against the just rights of the injured persons.

CANON 2: MAKING AVAILABLE EFFICIENT LEGAL SERVICE A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed. (Rule 2.01) Even if the lawyer does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary to safeguard the latter’s rights. (Rule 2.02)

CANON 3: USE OF TRUE, HONEST, FAIR AND OBJECTIVE INFORMATION IN MAKING KNOWN LEGAL SERVICES ADVERTISING AND SOLICITATION LEGAL ETHICS

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The law prohibits lawyers from soliciting cases for the purpose of gain, either personally or through paid agents or brokers and makes the act malpractice [Rule 138, sec. 27, Rules of Court]. The rule prohibits professional touting. Neither shall a lawyer “charge rates lower than those customarily prescribed unless the circumstances so warrant.”

USE OF LAW FIRM NAME 1. In the choice of a firm name, no false, misleading or assumed name shall be used. The continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased. [Rule 3.02, Code of Professional Responsibility] . Hence, the rule abandoned the doctrine laid down in the case of In re: Sycip, 92 SCRA 1 (1979). Reason: All of the partners by their joined efforts over a period of years contributed to the goodwill attached to the firm name, and this goodwill is disturbed by a change in firm name every time a partner dies. 2. Where a partner accepts public office, he shall withdraw from the firm and his name shall be dropped from the firm name unless the law allows him to practice concurrently. [Rule 3.02, Code of Professional Responsibility] . 3. Filipino lawyers cannot practice law under the name of a foreign law firm, as the latter cannot practice law in the Philippines and the use of the foreign law firm in the country is unethical. (Dacanay vs. Baker & McKenzie, G.R. Adm. Case No. 2131)

CANON 4: PARTICIPATE IN THE IMPROVEMENT OF THE LEGAL SYSTEM Examples: 1. Presenting position papers or resolutions for the introduction of pertinent bills in Congress; 2. Petitions with the SC for the amendment of the Rules of Court.

CANON 5: KEEP ABREAST OF LEGAL DEVELOPMENTS AND PARTICIPATE IN CONTINUING LEGAL EDUCATION PROGRAM THREE-FOLD OBLIGATIONS OF A LAWYER: 1. He owes it to himself to continue improving his knowledge of the law. 2. He owes it to his profession to take an active interest in the maintenance of high standards of legal education. 3. He owes it to the lay public to make the law a part of their social consciousness.

Bar Matter 850: MANDATORY CONTINUING LEGAL EDUCATION (MCLE) (Adopting the Rules on the Continuing Legal Education for Members of the Integrated Bar of the Philippines) August 8, 2000

Purpose: To ensure that throughout their career, they keep abreast with law and jurisprudence, maintain the ethics of the profession and enhance the standards of the practice of law. Requirements of Completion of MCLE Members of the IBP, unless exempted under Rule 7, shall complete every three (3) years at least 36 hours of continuing legal education activities. The 36 hours shall be divided as follows: a. 6 hours – legal Ethics b. 4 hours – trial and pretrial skills c. 5 hours – alternative dispute resolution d. 9 hours – updates on substantive and procedural laws and jurisprudence e. 4 hours – writing and oral advocacy f. 2 hours – international law and international conventions g. 6 hours – such other subjects as may be prescribed by the Committee on MCLE Parties Exempted from the MCLE


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San Beda College of Law 15 MEMORY AID 1. The President, Vice-President, and the Secretaries and Undersecretaries of executive departments; 2. Senators and Members of the House of Representatives; 3. The Chief Justice and Associate Justices of the SC, incumbent and retired justices of the judiciary, incumbent members of the Judicial and Bar Council and incumbent court lawyers covered by the Philippine Judicial Academy Program of continuing legal education; 4. The Chief State Counsel, Chief State Prosecutor and Assistant Secretaries of the Department of Justice; 5. The Solicitor-General and the Assistant Solicitor-General; 6. The Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel; 7. The Chairman and Members of the Constitutional Commissions; 8. The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsman and the Special Prosecutor of the Office of the Ombudsman; 9. Heads of government agencies exercising quasi-judicial functions; 10. Incumbent deans, bar reviewers and professors of law who have teaching experience for at least 10 years in accredited law schools; 11. The Chancellor, Vice-Chancellor and members of the Corps of Professional Lecturers of the Philippine Judicial Academy; and 12. Governors and Mayors

Other Exempted Parties 1. Those who are not in law practice, private or public 2. Those who have retired from law practice with the approval of the IBP Board of Governors Good Cause for Exemption from or modification of requirement A member may file a verified request setting forth good cause for LEGAL ETHICS

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exemption (such as physical disability, illness, post-graduate study abroad, proven expertise in law) from compliance with or modification of any of the requirements, including an extension of time for compliance, in accordance with procedure to be established by the committee on MCLE.

Proof of exemption: Applications for exemption from or modification of the MCLE requirement shall be under oath and supported by documents. Consequences of Non-Compliance 1. A member who fails to comply with the requirements after the 60-day period shall be listed as delinquent member by the IBP Board of Governors upon recommendation of the Committee on MCLE. 2. The listing as a delinquent member is administrative in nature but shall be made with notice and hearing by the Committee on MCLE.

CANON 6: APPLICABILITY OF THE CPR TO LAWYERS IN THE GOVERNMENT SERVICE Restriction Against Using Public Office to Promote Private Interest Public officials and employees during their incumbency shall NOT: 1. Own, control, manage or accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law 2. Engage in the private practice of their profession unless authorized by the constitution or law, provided that such practice will not conflict or tend to conflict with their official functions. 3. Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office



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4. Use or divulge confidential or classified information officially known to them by reason of their office and not available to the public.

Restrictions Against Former Official from Accepting Certain Employment A lawyer shall NOT, after leaving the government service, accept engagement or employment in connection with any matter in which he had intervened while in said service. [Rule 6.03, Code of Professional Responsibility] Section 7 (b), RA 6713 prohibits any former public official or employee for a period of one year after retirement or separation from office to practice his profession in connection with any other matter before the office he used to be with.

THE LAWYER AND THE LEGAL PROFESSION CANON 7: UPHOLD THE INTEGRITY AND DIGNITY OF THE PROFESSION AND SUPPORT THE ACTIVITIES OF THE IBP A lawyer shall be answerable for knowingly making a false statement or suppressing a material fact, in connection with his application for admission to the bar. (Rule 7.01) A lawyer shall not, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. (Rule 7.03)

CASE: Counsel’s act of filing multiple complaints against herein complainant’s reflects on his fitness to be a member of the legal profession. His act evinces vindictiveness, a decidedly undesirable trait whether in a lawyer or another individual, as complainants were instrumental in respondent’s dismissal from the judiciary. (Saburnido vs. Madrono, 366 SCRA 1, September 26, 2001)

CANON 8: COURTESY, FAIRNESS AND CANDOR TOWARD HIS COLLEAGUES AND AVOID HARASSING TACTICS

A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper. (Rule 8.01) CASE: Although aware that the plaintiff students were represented by counsel, respondent attorney, counsel for the defendants proceeded, nonetheless, to negotiate with them and their parents without at the very least communicating the matter to their lawyer. This failure of respondent is an inexcusable violation of the canons of professional ethics and in utter disregard of a duty owing to a colleague. (Camacho vs. Pangulayan, 328 SCRA 631, March 22, 2000)

CANON 9: PREVENTING UNAUTHORIZED PRACTICE OF LAW Public policy requires that the practice of law be limited to those individuals found duly qualified in education and character. Purpose: To protect the public, the court, the client and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the court. 1. A lawyer is prohibited from allowing an intermediary to intervene in the performance of his professional obligation. 2. A lawyer cannot delegate to any unqualified person the performance of any task which by law may only be performed by a member of the Bar in good standing. 3. A lawyer cannot divide or stipulate a fee for legal services with a person not licensed to practice law.

Exceptions: 1. Where there is a preexisting agreement with a partner or associate that, upon the latter’s death, money shall be paid over a reasonable period of time to his estate or to persons specified in the agreement;


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San Beda College of Law 17 MEMORY AID 2. Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; 3. Where a lawyer or law firm includes non-lawyer employees in a retirement plan, even if the plan is based in whole or in part on a profit-sharing arrangement.

LAWYER’S DUTIES TO COURTS CANON 10: CANDOR, FAIRNESS AND GOOD FAITH TO COURTS A lawyer shall NOT do any falsehood, nor consent to the doing of any in court; nor shall be misled, or allow the court to be misled by any artifice. (Rule 10.01)

REQUIREMENTS OF CANDOR: 1. A lawyer shall not suppress material and vital facts which bear on the merit or lack of merit of complaint or petition; 2. A lawyer shall volunteer to the court any development of the case which has rendered the issue raised moot and academic; 3. Disclose to court any decision adverse to his position of which opposing counsel is apparently ignorant and which court should consider in deciding a case; 4. He shall not represent himself as lawyer for a client, appear for client in court and present pleadings, only to claim later that he was not authorized to do so. Note: A lawyer is not an umpire but an advocate. He is not obliged to refrain from making every proper argument in support of any legal point because he is not convinced of its inherent soundness. Neither is he obliged to suggest arguments against his position. A lawyer shall NOT knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as a law a provision already rendered inoperative by repeal LEGAL ETHICS

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or amendment, or assert as a fact that which has not been proved. (Rule 10.02) A lawyer shall observe the rules of procedure and shall NOT misuse them to defeat the ends of justice. (Rule 10.03)

CANON 11: OBSERVANCE OF RESPECT DUE THE COURTS A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others. A lawyer should show respect due the court and judicial officer by appearing during the trial of a case punctually and in proper attire. A lawyer’s language should be forceful but dignified, emphatic but respectful as befitting an advocate and in keeping with the dignity of the legal profession.

RIGHT AND DUTY OF LAWYER TO CRITICIZE COURTS The fact that a person is a lawyer does not deprive him of the right, enjoyed by every citizen, to comment on and criticize the actuations of a judge. However, what he can ordinarily say against a concluded litigation and the manner the judge handed down the decision therein may NOT generally be said to a pending action. The court, in a pending litigation, must be shielded from embarrassment or influence in its all important duty of deciding the case. On the other hand, once a litigation is concluded the judge who decided it is subject to the same criticism as any other public official because then his ruling becomes public property and is thrown open to public consumption. But it is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety.

CANON 12: ASSISTING IN SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE A lawyer shall NOT appear for trial unless he has adequately prepared himself on the law and the facts of his case, the evidence he will adduce and the order of its presentation. He should also be ready with the original documents for comparison with the



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copies. [Rule 12.01 Code of Professional Responsibility] A lawyer shall NOT unduly delay a case, impede the execution of judgment or misuse court processes. [Rule 12.04, Code of Professional Responsibility]

CASE: The Court further commented that it is understandable for a party in the situation to make full use of every conceivable legal defense the law allows it. In the appraisal, however, of such attempts to evade liability to which a party should respond, it must ever be kept in mind that procedural rules are intended as an aid to justice, not as means for its frustration. Technicalities should give way to the realities of the situation. (Economic Insurance Co., Inc. vs. Uy Realty Co.) The duty of a lawyer to assist in the speedy and efficient administration of justice includes the duty to refrain from talking to his witness during a break or recess in the trial while the witness is still under examination.

FORUM SHOPPING - the act of filing repetitious suits in different courts. It is committed through the following: 1. Going from one court to another in the hope of securing a favorable relief in one court, which another court has denied. 2. Filing repetitious suits or proceedings in different courts concerning the same subject matter after one court has decided the suit with finality. 3. Filing a similar case in a judicial court after receiving an unfavorable judgment from an administrative tribunal.

2.

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Any willful and deliberate forum shopping by any party and his lawyer with the filing of multiple petitions or complaints to ensure favorable action shall constitute direct contempt of court; The submission of a fake certification under par. 2 of the Circular shall likewise constitute contempt of court, without prejudice to the filing of a criminal action against the guilty party. The lawyer may also be subjected to disciplinary proceedings.

CANON 13: AVOIDING IMPROPRIETY THAT TENDS TO INFLUENCE THE COURT A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court. A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with judges [Rule 13.01, Code of Professional Responsibility] A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party. [Rule 13.02, Code of Professional Responsibility] A lawyer shall not brook nor invite interference by another branch or agency of the government in the normal course of judicial proceedings. [Rule 13.03 Code of Professional Responsibility]

ATTORNEY-CLIENT RELATIONSHIP

Supreme Court Circular No. 28-91, and

NATURE OF RELATION 1. strictly personal; 2. highly confidential and fiduciary

the corresponding penalties for violation thereof are as follows: 1. Any violation of this circular shall be a cause for the summary dismissal of the multiple petition or complaint;

GENERAL RULES PROTECTING ATTORNEY-CLIENT RELATIONSHIPS 1. Best efforts must be exerted by the attorney to protect his client’s interest;

Forum shopping is prohibited by


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San Beda College of Law 19 MEMORY AID 2. The attorney must promptly account for any fund or property entrusted by or received for his client; 3. An attorney cannot purchase his client’s property or interest in litigation; 4. The privacy of communications shall at all times be upheld; 5. An attorney cannot represent a party whose interest is adverse to that of his client even after the termination of the relation.

CREATION OF RELATION: FORMS OF EMPLOYMENT AS COUNSEL TO A CLIENT 1. Oral – when the counsel is employed without a written agreement, but the conditions and amount of attorney’s fees are agreed upon. 2. Express − when the terms and conditions including the amount of fees, are explicitly stipulated in a written document which may be a private or public document. Written contract of attorney’s fees is the law between the lawyer and the client. 3. Implied – when there is no agreement, whether oral or written, but the client allowed the lawyer to render legal services not intended to be gratuitous without objection, and the client is benefited by reason thereof.

Note:

While a written agreement for professional services is the best evidence to show the relation, formality is not an essential element of the employment of an attorney. The absence of a written contract will not preclude a finding that there is a professional relationship. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied.

ADVANTAGES OF A WRITTEN CONTRACT BETWEEN THE LAWYER AND THE CLIENT: 1. It is conclusive as to the amount of compensation. LEGAL ETHICS

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2. In case of unjustified dismissal of an attorney, he shall be entitled to recover from the client full compensation stipulated in the contract [RA 636].

CANON 14: NOT TO REFUSE HIS SERVICES TO THE NEEDY RIGHT TO DECLINE EMPLOYMENT; EXCEPTIONS General Rule: A lawyer is not obliged to act as legal counsel for any person who may wish to become his client. He has the right to decline employment. Exceptions: 1. A lawyer shall not refuse his services to the needy. 2. He shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life or because of his own opinion regarding the guilt of said person. 3. He shall not decline, except for serious and sufficient cause like (1) if he is not in a position to carry out effectively or competently; (2) if he labors under a conflict of interest between him and the prospective client or between a present and prospective client.

Reasons: IBP Guidelines, Art.1, Sec. 1. Public Service: 1. Legal aid is not a matter of charity but a public responsibility. 2. It is a means for correction of social imbalance. 3. Legal aid offices must be so organized as to give maximum possible assistance to indigent and deserving members of the community and to forestall injustice.

DUTY TO DECLINE EMPLOYMENT A lawyer should decline professional employment even though how attractive the fee offered may be if its acceptance will involve: 1. A violation of any of the rules of the legal profession.




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2. Nullification of a contract which he prepared. 3. Advocacy in any matter in which he had intervened while in the government service. 4. Employment, the nature of which might easily be used as a means of advertising his professional services or his skill. 5. Employment with a collection agency which solicits business to collect claims. 6. Any matter in which he knows or has reason to believe that he or his partner will be an essential witness for the prospective client.

ETHICAL CONSIDERATIONS IN TAKING A BAD CASE In a Criminal Case: A lawyer may accept a losing criminal case because every accused is presumed innocent and is entitled to counsel. In a Civil Case: The rules and ethics of the profession enjoin a lawyer from taking a bad case.

Reasons: 1. The attorney’s signature in every pleading constitutes a certificate by him that there is good cause to support it and that it is not interposed for delay, and willful violation of such rule shall subject him to disciplinary action. 2. It is the attorney’s duty to “counsel or maintain such actions or proceedings only as appear to him to be just and only such defenses as he believes to be honestly debatable under the law.” 3. A lawyer is not to encourage either the commencement or the continuance of an action or proceeding, or delay any man’s cause, for any corrupt motive or interest. 4. A lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or

injure the opposite party or to work oppression or wrong. However, a lawyer may accept a losing civil case provided that, in so doing, he must not engage in dilatory tactics and must advise his client about the prospects and advantage of settling the case through a compromise.

LAWYER’S DUTIES TO CLIENT CANON 15: CANDOR, FAIRNESS AND LOYALTY IN HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS CONFLICT OF INTEREST Duty of a Lawyer to His Client in Case There is Conflict of Interest A lawyer, in conferring with a prospective client shall ascertain as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client. [Rule 15.01] It is the duty of a lawyer at the time of retainer to disclose to the client all circumstances of his relations to the parties and any interest in connection with the controversy, which might influence the client in the selection of counsel. It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of facts. Within the meaning of this Canon, a lawyer represents conflicting interests when, in behalf of one client it is his duty to contend for that which duty to another client requires him to oppose. Tests to Interests

Determine

Conflicting

Will the attorney be required to contest for that which his duty to another client requires him to oppose? (Conflicting duties) 2. Will the acceptance of a new relation invite suspicion and/or actually lead to unfaithfulness or doubledealing towards another 1.


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San Beda College of Law 21 MEMORY AID client?

(Invitation

of

suspicion) Will the attorney be called upon in his new relation to use against his first client any knowledge acquired in the previous employment? (Use of prior

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professional relationship the opposite party.

with

3.

knowledge obtained) INSTANCES WHEN A LAWYER IS CONSIDERED HAVING CONFLICTING DUTIES 1. As an employee of a corporation whose duty is to attend legal affairs, he cannot join a labor union of employees in that corporation; 2. As a lawyer who investigated an accident as counsel for an insurance, he cannot represent the injured person; 3. As a receiver of a corporation, he cannot represent the creditor; 4. As a representative of the obligor, he cannot represent the obligee; 5. As a lawyer representing a party in a compromise agreement, he cannot be subsequent lawyer representing another client who seeks to nullify the agreement; Effects of Representing Adverse Interests 1. Disqualification as counsel of new client on petition of former client. 2. Where such is unknown to, and becomes prejudicial to the interests of the new client, a judgment against such may, on that ground, be set aside. 3. A lawyer can be held administratively liable through disciplinary action and may be held criminally liable for betrayal of trust. 4. The attorney’s right to fees may be defeated if found to be related to such conflict and such was objected to by the former client, or if there was a concealment and prejudice by reason of the attorney’s previous LEGAL ETHICS

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CASE: Jurisprudence instructs that there is a representation of conflicting interests if the acceptance of the new retainer will require the attorney to do anything 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 to determine if there is a representation of conflicting 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. (Pormento, Sr. vs. Atty. Pontevedra, A.C. No. 5128, March 31, 2005)

CANON 16: LAWYER’S DUTY TO HOLD IN TRUST ALL THE MONEY AND PROPERTY OF HIS CLIENT THAT MAY COME TO HIS POSSESSION PROHIBITION AGAINST PURCHASE OF PROPERTY IN LITIGATION Elements of Prohibition 1. There is an attorney-client relationship; 2. The property is in litigation; 3. The attorney is the counsel of record in the case; 4. The attorney, by himself or through an agent, purchases such property during the pendency of said case [Art. 1491 of the Civil Code] Other Instances Where Rule is Inapplicable 1. Where the property purchased by a lawyer was not involved in litigation. 2. Where the sale took place before it became involved in the suit. 3. Where the attorney at the time of the purchase was not counsel in the case. 4. Where the purchaser of the property in litigation was a



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corporation even though the attorney was an officer thereof. 5. Where the sale took place after the termination of the litigation. 6. A lawyer may accept an assignment from his client of a money judgment rendered in the latter’s favor in a case in which he was not counsel, in payment of his professional services performed in another case. 7. Prohibition is inapplicable to a contract for attorney’s fees contingent upon the outcome of the litigation.

CANON 17: FIDELITY TO THE CAUSE OF HIS CLIENT AND MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM CASE: Ordinarily, lawyers are not obliged to act either as advisers or as advocates of any person who may wish to become their client. They may decline employment and refuse to accept representation, if they are not in a position to carry it out effectively or competently. But once they agree to handle a case, attorneys are required by the Canons of Professional Responsibility to undertake the task with zeal, care and utmost devotion. Acceptance of money from a client establishes an attorney-client relationship and gives rise to the duty of fidelity to the client’s cause. Every case accepted by a lawyer deserves full attention, diligence, skill and competence, regardless of importance. (Rollon vs. Atty. Naraval, A.C. No. 6424, March 4, 2005)

CANON 18: SERVE CLIENT WITH COMPETENCE AND DILIGENCE DUTY TO PROTECT CLIENT’S INTEREST The attorney’s duty to safeguard the client’s interests commences from his retainer until his effective release from the case or the final disposition of the whole subject matter of the litigation. During that period he is expected to take such reasonable steps and such ordinary care as his client’s interests may require.

PREPARATION OF PLEADINGS A lawyer shall not handle any legal matter without any adequate preparation. (Rule 18.02) A lawyer should prepare his pleading with great care and circumspection. He should refrain from using abrasive and offensive language, for it merely weakens rather than strengthens the force of legal reasoning and detracts from its persuasiveness. In preparing a complaint for damages, counsel for plaintiff should allege and state the specific amounts claimed not only in the body of the complaint but also in the prayer, so that the proper docket fees can be assessed and paid. DUTY TO KEEP CLIENT FULLY INFORMED A lawyer shall keep the client informed of the status of his case. (Rule 18.04) He should notify his client of an adverse decision while within the period to appeal to enable his client to decide whether to seek an appellate review. He should communicate with him concerning the withdrawal of appeal with all its adverse consequences. The client is entitled to the fullest disclosure of the mode or manner by which his interest is defended or why certain steps are taken or omitted.

Doctrine of Imputed Knowledge

the knowledge acquired by an attorney during the time that he is acting within the scope of his authority is imputed to the client. It is based on the assumption that an attorney, who has notice of matter affecting his client, has communicated the same to his principal in the course of professional dealings. The doctrine applies regardless of whether or not the lawyer actually communicated to the client what he learned in his professional capacity, the attorney and his client being one juridical person.

Exceptions to the Rule that Notice to Counsel is Notice to Client 1. If strict application might foster dangerous collusion to the detriment of justice.


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San Beda College of Law 23 MEMORY AID 2. Service of notice upon party instead of upon his attorney is ordered by court. 3. Notice of pre trial is required to be served upon parties and their respective lawyers. 4. In appeal from the lower court to the RTC, upon docketing of appeal.

DUTY WHEN THE ACCUSED INTENDS TO PLEAD GUILTY A PLEA OF GUILTY is an admission by the accused of his guilt of crime as charged in the information and of the truth of the facts alleged, including the qualifying and aggravating circumstances. It is the duty of the defense counsel when his client desires to enter a plea of guilty to: (ACEPA) 1. Fully acquaint himself with the records and surrounding circumstances of the case 2. Confer with the accused and obtain from him his account of what had happened 3. Advise him of his constitutional rights 4. Thoroughly explain to him the import of a guilty plea and the inevitable conviction that will follow 5. See to it that the prescribed procedure which experience has shown to be necessary to the administration of justice is strictly followed and disclosed in the court records. DUTY TO COMPLY WITH CLIENT’S LAWFUL REQUEST A client shall respond within a reasonable time to the client’s request for information. (Rule 18.04) A lawyer should endeavor to seek instruction from his client on any substantial matter concerning the litigation, which may require decision on the part of the client, such as whether to compromise the case or to appeal an unfavorable judgment. He should give his client sound advice on any such and similar matters and comply with the client’s lawful instructions relative thereto. He should resist and should LEGAL ETHICS

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never follow any unlawful instruction of his client.

CANON 19: DUTY TO REPRESENT CLIENT WITH ZEAL AND WITHIN THE BOUNDS OF THE LAW DUTY TO RESTRAIN CLIENT FROM IMPROPRIETY A lawyer should use his best efforts to restrain and to prevent his client from doing those things which he himself ought not to do, particularly with reference to the conduct toward the court, judicial officer, witness and suitor and if the client persists in such wrong doing, the lawyer should terminate their relation. Duty to Advice Candidly As officers of the court, counsels are under obligation to advise their clients against making untenable and inconsistent claims. The counsel should inform his client and dissuade him from filing the case if totally devoid of merit. If he finds that his client’s cause as fairly meritorious and ripe for judicial adjudication, he should refrain from making bold and confident assurances of success. Duty of Lawyer in Case of Knowledge of Client’s Fraud 1. He must promptly call upon the client to rectify the same and failing which, 2. He shall terminate their relationship with such client in accordance with the Rules of Court.

AUTHORITY OF A LAWYER Appearance- the coming into court as a party either as a plaintiff or as a defendant and asking relief therefrom. By virtue of Sec. 20, Rule 14 of the 1997 Rules of Civil Procedure, there is no more distinction between general appearance and special appearance, in the sense that a defendant may file a motion to dismiss not only on the ground of lack of jurisdiction over his person but also on some other grounds without waving the jurisdiction of the court over his person.



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Presumption of Authority An attorney is presumed to be properly authorized to represent any cause in which he appears in all stages of the litigation and no written authority is required to authorize him to appear. The presumption is a strong one. A mere denial by a party that he has authorized an attorney to appear for him, in the absence of compelling reason, is insufficient to overcome the presumption especially when the denial comes after the rendition of an adverse judgment. Effects of an Unauthorized Appearance 1. Party is not bound by the attorney’s appearance in the case in or by the judgment rendered therein. 2. Court does not acquire jurisdiction over the person. 3. The adverse party who has been forced to litigate as a defendant by the unauthorized action on the part of the attorney for the plaintiff may, on that ground, move for the dismissal of the complaint. 4. If unauthorized appearance is willful, attorney may be cited for contempt as an officer of the court who has misbehaved in his official transactions, and he may be disciplined for professional misconduct. Ratification of Unauthorized Appearance 1. EXPRESS: categorical assertion by client that he has authorized a lawyer or that he confirms his authorization to represent him in the case. 2. IMPLIED: where a party with knowledge of the fact that a lawyer has been representing him in a case, accepts benefits of representation or fails to promptly repudiate the assumed authority. Requisites for Implied Ratification by Silence

1. Party represented by lawyer must be of age, competent or if suffers from disability, has guardian or legal representative. 2. Party or guardian is aware of attorney’s representation. 3. He fails to promptly repudiate assumed authority.

Authority of Attorney in the Conduct of Litigation A lawyer has authority to bind the client in all matters of ordinary judicial procedure. He can bind his client on substantial matters only with the client’s express or implied consent. A client may waive, surrender, dismiss, or compromise any of his rights involved in a litigation in favor of the other party even without or against the consent of his attorney. Authority to Compromise Compromise- a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced.

General Rule: The attorney has no authority to compromise his client’s case. Reason: Because the client, even if represented by counsel, retains exclusive control over the subject matter of the litigation. The client can, of course, authorize his lawyer to compromise his case, and the settlement made by the lawyer will bind his client. Exception: Where the lawyer is confronted with an emergency and prompt, urgent action is necessary to protect the interest of his client and there is no opportunity for consultation with him.

Mistakes or Negligence of Lawyer Binding Upon Client  G eneral Rule: Client is bound by attorney’s conduct, negligence and mistake in handling case or in management of litigation and in procedural technique, and he can not be heard to complain that result might have been different had his lawyer proceeded differently. Exceptions:


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San Beda College of Law 25 MEMORY AID 1. Where adherence thereto results in outright deprivation of client’s liberty or property or where interest of justice so requires. 2. Where error by counsel is purely technical which does not affect substantially client’s cause. 3. Ignorance, incompetence or inexperience of lawyer is so great and error so serious that client, who has good cause prejudiced and denied a day in court. 4. Gross negligence of lawyer. 5. Lack of acquaintance with technical part of procedure.

CANON 20: DUTY OF THE LAWYER TO CHARGE ONLY FAIR AND REASONABLE FEES ATTORNEY’S FEES Factors in Determining Attorney’s Fees (Rule 20.1, Canon 20) (TINSAP²C³) 1. time spent and the extent of the services rendered or required; 2. novelty and the difficulty of the questions involved; 3. importance of the subject matter; 4. skill demanded; of losing other 5. probability employment as a result of the acceptance of the proffered case; 6. customary charges for similar services and the schedule of fees of the IBP Chapter to which he belongs; 7. amount involved in the controversy and the benefits resulting to the client from the service; 8. contingency or certainty of compensation; 9. character of the employment whether occasional or established; and 10. the professional standing of the lawyer. Two Concepts of Attorney’s Fees LEGAL ETHICS

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Ordinary- it is the reasonable compensation paid to the lawyer for the legal services he had rendered the client. The basis of this compensation is the fact of employment by the client. 2. Extraordinary- an indemnity for damages ordered by the court to be paid by the losing party to the prevailing party in a litigation. The basis of this is any of the cases authorized by law 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. 1.

Kinds of Payment which may be Stipulated Upon 1. FIXED OR ABSOLUTE FEE – which is payable regardless of the result of the case. 2. CONTINGENT FEE – that is conditioned on the securing of a favorable judgment and recovery of money or property and the amount of which may be on a percentage basis. 3. A fixed fee payable PER APPEARANCE. 4. A fixed fee computed upon the NUMBER OF HOURS SPENT 5. A fixed fee based on PIECEWORK . 6. COMBINATION of any of the above. RETAINER- may refer to either of two concepts: Act of a client by which he 1. engages the services of an attorney to render legal advice or to defend or prosecute his cause in court. Fee which a client pays to 2. the attorney Kinds of Retainer Agreements 1. General retainer – the fee paid to a lawyer to secure his future services as “general counsel” for any ordinary legal problem that may arise in the



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ordinary business of the client and referred to him for legal action. The client pays fixed retainer fees, which could be monthly or otherwise. The fees are paid whether or not there are cases referred to the lawyer. 2. Special retainer – fee for a specific case or service rendered by the lawyer for the client.

Situations when Counsel cannot Recover the Full Amount of Attorney’s Fees Despite Written Contract 1. When the services called for were not performed as when the lawyer withdrew before the case was finished. He will be allowed only reasonable fees 2. When there is a justified dismissal of the attorney, the contract will be nullified and payment will be on the basis of quantum meruit only. A contrary stipulation will be invalid. 3. When the stipulated attorney’s fees are unconscionable i.e., when it is disproportionate as compared to the value of services rendered and is revolting to human conscience. 4. When the stipulated attorney’s fees are in excess of what is expressly provided by law. 5. When the lawyer is guilty of fraud or bad faith toward his client in the matter of his employment 6. When the counsel’s services are worthless because of h is negligence. 7. When contract is illegal, against morals or public policy. 8. Serving adverse i nterest unless lawyer proves that it was with the consent of both parties. Quantum Meruit − means as much as the lawyer deserves or such amount as his services merit. Guides for Determining Attorney’s Fees on Quantum Meruit Basis (TINS)

1. Time spent and extent of the services rendered or required – a lawyer is justified in fixing higher fees when the case is so complicated and requires more time and effort to finish it. 2. Novelty and difficulty of questions involved – when the questions in a case are novel and difficult, greater effort, deeper study and research are bound to burn the lawyer’s time and stamina considering that there are no local precedents to rely upon 3. Importance of subject matter − the more important the subject matter or the bigger the value of the interest of property in litigation, the higher is the attorney’s fees 4. Skill demanded of a lawyer − the totality of the lawyer’s experience provides him the skill and competence admired in lawyers.

Instances of Recovery of Attorney’s Fees on the Basis of Quantum Meruit 1. There is no express contract for payment of attorney’s fees agreed upon between the lawyer and the client. 2. When although there is a formal contract for attorney’s fees, the fees stipulated are found unconscionable. 3. When the contract for attorney’s fees is void due to formal matter. 4. When for justifiable cause the lawyer was not able to finish the case. 5. When the lawyer and the client disregard the contract for fees. 6. When the client dismissed his counsel before the termination of the case or the latter withdrew therefrom for valid reasons. Champertous Contract - one where the lawyer stipulates with his client in the prosecution of the case that he will bear


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San Beda College of Law 27 MEMORY AID all of the expenses for the recovery of things or property being claimed by the client, and the latter agrees to pay the former a portion of the thing or property recovered as compensation. It is void for being against public policy.

CONTINGENT CHAMPERTOUS

vs.

CONTINGENT CONTRACT 1. Contingent fee is payable in cash 2. Lawyers do not undertake to pay all expenses of litigation

CHAMPERTOUS CONTRACT 1. Payable in kind ONLY

3. Not prohibited

3. Void

2.Lawyers undertake to pay all expenses of litigation

Enforcement of Attorney’s Fees General Rule: A lawyer should avoid the filing of any case against client for enforcement of attorney’s fees Exceptions: 1. to prevent imposition 2. to prevent injustice 3. to prevent fraud Who are Entitled to Attorney’s Fees General Rule: Only lawyers are entitled to attorney’s fees. The same cannot be shared with a non-lawyer. It is immoral. Exceptions: A lawyer may divide a fee for legal services with persons not licensed to practice law: (CPR) 1. a lawyer undertakes to complete unfinished legal business of a deceased lawyer; 2. there is a pre-existing agreement with a partner or associate that, upon the latter’s death, money shall be paid over a reasonable period of time to his estate or to persons specified in the agreement; 3. a lawyer or law firm includes non-lawyer employees in retirement plan, even if the plan is based in whole or in part on the profit sharing agreement LEGAL ETHICS

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Effect of Nullity of Contract on the Right to Attorney’s Fees 1. if the nullification is due to the illegality of its object, the lawyer is precluded from recovering; 2. if the nullity is due to a formal defect or because the court has found the amount to be unconscionable, the lawyer may recover for any services rendered based on quantum meruit. Instances When an Independent Civil Action to Recover Attorney’s Fees is Necessary 1. Main action is dismissed or nothing is awarded; 2. Court has decided that it has no jurisdiction over the action or has already lost it; 3. Person liable for attorney’s fees is not a party to the main action; 4. Court reserved to the lawyer the right to file a separate civil suit for recovery of attorney’s fees; 5. Services for which the lawyer seeks payment are not connected with the subject litigation; 6. Judgment debtor has fully paid all of the judgment proceeds to the judgment creditor and the lawyer has not taken any legal step to have his fees paid directly to him from the judgment proceeds. Compensation to Which a Lawyer is Entitled to Depending on His Capacity 1. Counsel de Parte - He is entitled to a reasonable attorney’s fees agreed upon or in the absence thereof, on quantum meruit basis. 2. Counsel de Oficio - The counsel may not demand from the accused attorney’s fees even if he wins the case. He may however collect from the government funds if available based on the amount fixed by the court.




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3.

Amicus Curiae - not entitled to attorney’s fees

ATTORNEY’S LIEN Charging Lien - is an equitable right to have the fees and lawful disbursements due a lawyer for his services in a suit secured to him out of the judgment for the payment of money and executions issued in pursuance thereof in the particular suit. Requisites of a Charging Lien Existence of a client-lawyer 1. relationship; The attorney has rendered services; 2. Favorable judgment secured by the 3. counsel for his client which judgment is a money judgment; 4. The attorney has a claim for attorney’s fees or advances; 5. Noting into the records of the case through the filing of an appropriate motion of the statement of the lawyer’s claim for attorney’s fee with copies furnished to the client and adverse party. Retaining Lien – a right merely to retain the funds, documents, and papers as against the client until the attorney is fully paid his fees. Requisites: (ALU) 1. Attorney-client relationship; 2. Lawful possession by the lawyer of the client’s funds, documents and papers in his professional capacity; 3. Unsatisfied claim for attorney’s fees

3. Coverage

4. Effect

5. Notice

Client need not be notified to make it effective.

6. Applicabil

May be exercised before judgment or execution or regardless thereof.

ity

RETAINING LIEN VS.CHARGING LIEN Point of Retaining Distinction Lien

Charging Lien

1. Nature

Passive Lien. It cannot be actively enforced. It is a general lien.

2. Basis

Lawful possession

Active Lien. It can be enforced by execution. It is a special lien. Securing of a favorable

of papers, documents, property belonging to the client. Covers papers, documents, and properties in the lawful possession of the attorney by reason of his professional employment . As soon as the attorney gets possession of the papers, documents, or property.


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money judgment for the client. Covers all judgment for the payment of money and execution issued in pursuance of such judgments.

As soon as the claim for attorney’s fees had been entered into the records of the case. Notice must be served upon client and adverse party Generally, exercisable only when the attorney had already secured a favorable judgment for his client.



San Beda College of Law 29 MEMORY AID 7.Extinguishment

When possession lawfully ends when as lawyer voluntarily parts with funds, documents, and papers of client or offers them as evidence.

When client loses action as lien may only be enforced against judgment awarded in favor of client, proceeds thereof/ executed thereon.

CANON 21: PRIVILEGED COMMUNICATION Requisites: 1. There exists an attorney and client relationship or a kind of consultancy relationship with a prospective client. That is, legal advise is what is sought; 2. The communication was made by the client to the lawyer in the course of the lawyer’s professional employment; and 3. The communication must be intended to be confidential. [Uy Chico vs. Union Life Association Society, 29 Phil 163] Purposes: To encourage a client to make a full disclosure of the facts of the case to his counsel without fear; To allow the lawyer freedom to obtain full information from his client. Characteristics: 1. A-C privilege where legal advice is professionally sought from an attorney. 2. The client must intend the above communication to be confidential. 3. A-C privilege embraces all forms of communication and action. 4. As general rule, A-C privilege also extends to the attorney’s secretary, stenographer, clerk or LEGAL ETHICS

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agent with reference to any fact required in such capacity. The above duty is perpetual and is absolutely privileged from disclosure.

Exceptions to the Privilege 1. When there is consent or waiver of client. 2. When disclosure is required by law. 3. When disclosure is made to protect the lawyer’s rights (i.e., to collect his fees or defend himself, his employees or associates or by judicial action). 4. When such communications are made in contemplation of a crime or the perpetuation of a f raud LAWYER AS WITNESS A lawyer shall avoid testifying in behalf of his client. Reason: The function of a witness is to tell the facts as he recalls them in answer to questions. The function of an advocate is that of a partisan. It is difficult to distinguish between the zeal of an advocate and the fairness and impartiality of a disinterested witness. Instances when a lawyer may NOT testify as a witness in a case which he is handling for a client: 1. When such would adversely affect any lawful interest of the client with respect to which confidence has been reposed on him; 2. Having accepted a retainer, he cannot be a witness against his client; 3. He cannot serve conflicting interests; 4. When he is to violate the confidence of his client; 5. When as an attorney, he is to testify on the theory of the case. Instances when a lawyer may testify as a witness in a case which he is handling for a client: 1. On formal matters, such as the mailing, authentication or



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custody of an instrument and the like; 2. Acting as an expert on his fee; 3. Acting as an Arbitrator; 4. Deposition; 5. On substantial matters in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel.

INTERVIEWING WITNESSES Witness- human instrumentality through which the law and its ministers, the judges and lawyers, endeavors to ascertain the truth and to dispense justice to the contending parties. 1. A lawyer may interview a witness in advance of trial to guide him in the management of the litigation. 2. A lawyer may also interview a prospective witness for the opposing side in any civil or criminal action without the consent of the opposing counsel or party. 3. A lawyer may properly obtain statements from witnesses whose names were furnished by the opposing counsel or interview the employees of the opposing party even though they are under subpoena to appear as witnesses for the opposite side. 4. If after trial resulting in defendant’s conviction, his counsel has been advised that a prosecution witness has committed perjury, it is not only proper but it is the lawyer’s duty to endeavor honorably to obtain such witness’ retraction, even without advising the public prosecutor of his purpose and even though the case is pending appeal. An adverse party, though he may be used as a witness, is not, however, a witness within the meaning of the rule permitting a lawyer to interview the witness of the opposing counsel.

CANON 22: WITHDRAWAL OF SERVICES TERMINATION OF RELATIONSHIP

ATTORNEY-CLIENT

Instances When a Counsel Can Withdraw His Services 1. When the client pursues an illegal or immoral course or conduct in connection with the case he is handling; 2. When the client insists that the lawyer pursue conduct violative of the Code of Professional Responsibility; 3. When his inability to work with cocounsel 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 on 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 finds out that he might be appearing for a conflicting interest; (Note: In all the above cases, the lawyer must file a written motion with an express consent of his client and must wait for the approval of the court.) 7. When the lawyer is elected or appointed to public office; 8. Other similar cases [Canon 22 Rule 22.01] NOTE: A lawyer may withdraw as counsel only with the conrent of the client and with leave of court, and only for good cause enumerated in Rule 22.01 of the Code of Profdssional Responsibility. The relation of attorney-client relationship is strictly personal and highly confidential and fiduciary. Necessity and public interest require that it be so. Discharge of the Attorney by Client The client has the right to terminate at any time WITH OR WITHOUT JUST CAUSE. Just cause is material only in determining compensation.


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Without just cause

⇑

And no express written agreement as to fees − reasonable value of his services up to the date of his dismissal (quantum meruit) ⇑ And there is written agreement and the fee stipulated is absolute and reasonable − full payment of compensation ⇑ And the fee stipulated is contingent dismissed ∏ If before the conclusion of the action − reasonable value of his services (quantum meruit) ∏ If contingency occurs or client prevents its occurrence − full amount (Note: lawyer should question his discharge, otherwise he will be allowed to recover on quantum meruit basis.)

With just cause Lawyer is not necessarily deprived of his right to be paid for his services. He may only be deprived of such right if the cause for his dismissal constitutes in itself a sufficient legal obstacle to recovery.

Limitations of Client’s Right to Discharge His Counsel 1. Client cannot deprive counsel of his right to be paid for services rendered if dismissal is without cause; Client cannot discharge 2. counsel as an excuse to secure repeated extensions of time; Notice of discharge 3. required in so far as court and adverse party are concerned. Duties of a Discharged Lawyer or One Who Withdraws 1. Immediately turn-over all papers and property to which the client is entitled; LEGAL ETHICS

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To cooperate with the succeeding lawyer in the orderly transfer of the case .

Conditions for Substitution of Counsel 1. Written request for such substitution 2. Written consent of the client 3. Written consent of the attorney to be substituted or in the absence thereof, proof of service of notice of said motion to the attorney to be substituted.

LIABILITIES OF A LAWYER LIABILITY FOR DAMAGES Requisites Attorney - client 1. relationship Want of reasonable care 2. & diligence Injury sustained by client 3. as proximate result thereof.

Kinds of Damages Nominal – where client 1. lost the litigation as a consequence of lawyer’s gross omission or negligence. Actual/compensatory 2. Moral Damages 3. Attorney’s fees 4. (Note: for nos. 2-4 there should be showing that had the lawyer exercised due diligence client would have succeeded in recovering from adverse party.)

Liability for Obligation

Breach

of

Fiduciary

Lawyer holds his client’s funds or property in trust for clients and is obliged to make an accounting of such funds that come to his possession.

Effect of Failure to Return Client’s Money or Property After Demand 1. Presumption that he misappropriated the same 2. Civilly liable in favor of client 3. Criminal liability 4. Administrative liability




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Remedy of Client Recover property from lawyer together with its fruits, subject to client’s returning to his lawyer purchase price & legal interest.

Libelous Words in Pleadings A lawyer is exempted from liability for slander, libel or otherwise defamatory, published in course of PROVIDED judicial proceedings, statements are connected with, relevant, pertinent and material to cause in hand or subject of inquiry Test of Relevancy The matter to which the privilege does not extend must be palpably wanting in relation to subject of controversy, that no reasonable man can doubt its relevancy or propriety. Pleadings should contain plain and concise statements of material facts and if pleader goes beyond requisites of law and alleges irrelevant matter which is libelous, he loses his privilege and may be liable in separate suit. Liability for Costs of Suit General Rule: Losing client and not the lawyer is liable for costs of suit in favor of prevailing party, lawyer not being party-litigant. Exception: Where the lawyer insisted on client’s patently unmeritorious case or interposed appeal to delay litigation or thwart prompt satisfaction of prevailing party’s just and valid claim, court may adjudge lawyer to pay treble costs of suit. CRIMINAL LIABILITY A lawyer may be held criminally liable if he commits any of the following: 1. Causing prejudice to client thru malicious breach of professional duty or thru inexcusable negligence or ignorance. client’s secrets 2. Revealing learned in lawyer’s professional capacity thru malicious breach of professional duty or inexcusable negligence or ignorance.

Specific Acts which May Result to Criminal Liability A lawyer who has undertaken the defense of client or has received confidential information from said client in a case may be criminally liable for undertaking defense of opposing party in same cause without consent of first client.[Art. 209, RPC] 2. A lawyer who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with intent to cause such damage, shall use any false document may be held criminally liable therefor. [Art.172, RPC] 3. A lawyer who misappropriates his client’s funds may be held liable for estafa. 1.

CONTEMPT OF COURT Nature It is exercised on preservative and not on vindictive principle and on corrective rather than the retaliatory idea of punishment, for purposes that are impersonal. It is criminal in nature. The power to punish for contempt is inherent in all courts. It is essential in the observance of order in judicial proceedings and to enforcement of judgment, orders and writs.

Kinds of Contempt Direct 1.

− Contempt consists of misbehavior in the presence of or so near a court or judge as to interrupt or obstruct the proceedings before the court or the administration of justice Indirect or Constructive 2. Contempt − one committed away from the court involving disobedience of or resistance to a lawful writ, process, order, judgment or command of the court, or tending to belittle, degrade, obstruct, interrupt or embarrass the court Civil Contempt − failure 3. to do something ordered by the


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San Beda College of Law 33 MEMORY AID court which is for the benefit of a party Criminal Contempt − 4. consists of any conduct directed against the authority or dignity of the court.

Acts of Contempt

a

Lawyer

Constituting

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d. Suspend an attorney who

appears before them from the practice of law for any of the causes mentioned in Section 27, Rule 138 [Section 16, Rule 139-B]. Note: But they cannot disbar a lawyer.

Misbehavior as officer of

1.

court Disobedience or resistance to court order Abuse or interference 3. with judicial proceedings 4. Obstruction in administration of justice 5. Misleading courts 6. Making false allegation, criticisms, insults, veiled threats against the court 7. Aiding in unauthorized practice of law (suspended or disbarred) Unlawful retention of 8. client’s funds Advise client to commit 9. contemptuous acts 2.

FORMS OF DISCIPLINARY MEASURES (WARS – CD) 1.

2.

3.

4.

III. BAR DISCIPLINE POWER TO DISCIPLINE ERRANT LAWYERS 1. The Supreme Court has the full

authority and power to (WARDS) Warn a. 1. Admonish 2. R eprimand 3. Suspend and 4. Disbar a lawyer [Section 27, Rules 138, Rules of Court]

5. 6.

2. The

Court of Appeals and the Regional Trial Courts are also empowered to (WARS) a. Warn b. Admonish c. R eprimand and

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Warning – an act or fact of putting one on his guard against an impending danger, evil consequences or penalties. Admonition – a gentle or friendly reproof, mild rebuke, warning or reminder, counseling, on a fault, error or oversight, an expression of authoritative advice. Reprimand – a public and formal censure or severe reproof, administered to a person in fault by his superior officer or a body to which he belongs. Suspension – temporary withholding of a lawyer’s right to practice his profession as a lawyer for a certain period or for an indefinite period of time. a. D efinite b. I −qualified ndefinite disbarment; lawyer determines for himself for how long or how short his suspension shall last by proving to court that he is once again fit to resume practice of law. Censure - Official reprimand. Disbarment - It is the act of the Philippine Supreme Court in withdrawing from an attorney the right to practice law. The name of the lawyer is stricken out from the roll of attorneys.



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SUSPENSION AND DISBARMENT Nature of Proceedings 1. NOT a civil action because there is no plaintiff and no respondent, involves no private interest. The complainant is not a party and no interest in the outcome except as all citizens have in proper administration of justice, no redress for private grievance. a criminal prosecution 2. NOT because it is not meant as a punishment depriving him of source of livelihood but rather to ensure that those who exercise the function should be competent, honorable and reliable so that public may repose confidence in them. 3. SUI GENERIS, it is a class of its own since it is neither civil nor criminal 4. Confidential in nature. 5. Defense of double jeopardy is not available. 6. Can be initiated by the SC motu propio or by the IBP. It can be initiated without a complaint; 7. Can proceed regardless of interest of the complainants; 8. Imprescriptible; 9. It is itself due process of law. Reason for Making Disbarment Proceedings Confidential To enable the Supreme Court to make its investigation free from any extraneous influence or interference as well as to protect the personal and professional reputation of attorneys and judges from the baseless charges of disgruntled, vindictive and irresponsible clients and litigants. [In Re: Abistado, 57 Phil 668] GROUNDS FOR SUSPENSION OR DISBARMENT OF MEMBERS OF THE BAR 1. Under Rule 138, Sec. 27 of the Revised Rules of Court: a. Deceit - is a fraudulent and deceptive misrepresentation, artifice of device used by one or more persons to deceive and trick another, who is ignorant of

the true facts to the prejudice and damage of the party imposed upon. There must be false representation as matter of fact. (Example: Misappropriation of client’s fund) b. Malpractice, or other gross

misconduct in office- any malfeasance or dereliction of duty committed by a lawyer. (Example: Failure of lawyer to appeal in allowing the period of appeal to lapse) Legal Malpractice- consists of failure of an attorney to use such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of tasks which they undertake, and when such failure proximately causes damage, it gives rise to an action in tort. [Tan Tek Beng vs. David, 126 SCRA 389] c. Grossly

immoral conductthat conduct which is willful, flagrant or shameless and which shows a moral indifference to the opinion of the good and respectable members of the community. CASE: In the case of Arciaga vs. Maniwang [106 SCRA 591], mere intimacy between a lawyer and a woman with no impediment to marry each other voluntarily cohabited and had two children, is neither so corrupt as to constitute a criminal act nor so unprincipled as to warrant disbarment or disciplinary action against the man as a member of the bar. d. Conviction

of a crime involving moral turpitude (Examples: estafa, bribery, murder, bigamy, seduction, abduction, concubinage, smuggling, falsification of public document, violation of B.P. 22)

e. Violation of oath of office


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San Beda College of Law 35 MEMORY AID f. Willful disobedience of any lawful order of a superior court or willfully g. Corruptly appearing as an attorney for a party to a case without authority to do so. 2.

Acquisition of an interest in the subject matter of the litigation, either though purchase or assignment [Art. 1491, Civil

Code] 3.

Breach of professional duty, inexcusable negligence, or ignorance, or for the revelation of the client’s secrets [Art. 208,

Revised Penal Code] 4.

Representing interests [Art.

conflicting

209, Revised

Penal Code] Grounds for disbarment NOT EXCLUSIVE: The statutory enumeration of the grounds for disbarment or suspension is not to be taken as a limitation on the general power of courts to suspend or disbar a lawyer. The inherent power of court over its officers cannot be restricted. [Quingwa vs. Puno, Admin. Case No 398, Feb. 28, 1967] The Supreme Court has disbarred or suspended lawyers for reasons not found in the statute as when their acts are contrary to honesty or good morals or do not approximate the highest degree of morality and integrity expected of the members of the bar. [Sta. Maria vs. Tuazon, Admin. Case No. 396, July 31, 1964]. Quantum of Evidence Required : clear, convincing and satisfactory evidence Burden of Proof : rests on the complainant, the one who instituted the suit

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BREACH OF DUTIES OF A LAWYER Breach of Duties to Court 1. Obstructing Administration of justice − constitutes misconduct and justifies disciplinary action against him and contempt of court. (Example: Forum shopping) court− knowingly 2. Misleading making false allegation in pleadings, misquoting text of documents, suppressing material facts 3. Preferring false charges − filing or prosecuting false charges against another for his action is violative of duty to do falsehood nor consent to doing of any in court, nor wittingly or willingly promote or sue any false, groundless, unlawful suit. Requisites α a. Charges are fake β b. Lawyer knows them to be so 4. Introducing False Evidence− it is a violation of oath to do no falsehood nor consent to doing of any in court. When false testimony is material to inquiry or relevant to issue, it requires suspension or disbarment. On the other hand, when the testimony is immaterial or irrelevant and does not cause substantial prejudice, it only warrants lesser sanction, such as warning or reprimand disobeying court 5. Willfully orders − lawyer may be punished for contempt and disciplined as officer of court. 6. Using vicious or disrespectful language − constitutes direct contempt; violation of oath and Code of Professional Responsibility. to practice after 7. Continue suspension − constitutes gross misconduct and willful disregard of suspension order.



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Breach of Duties to Client 1. Negligence in performance of duties Requisites to Warrant Suspension or Disbarment: i. Negligence and carelessness which must be gross in character ii. Caused material prejudice to client Note: Mere negligence without pecuniary damages justifies only reprimand or censure except when breach of duty to client is a gross violation of obligation to court. Employment of unlawful 2. means Deceit or 3. misrepresentation Requisites a. Bad faith on the part of the lawyer b. Material damage to client Representing adverse 4. Interest and revealing client’s secrets - If there is no written consent of client, a lawyer may not represent conflicting interest. The fact that lawyer did not acquire confidential information from client nor use the same against the latter does not excuse him from responsibility. Purchase client’s 5. property in litigation Requisites: Lawyer is counsel for a. client at the time he acquired the property Property is subject of b. litigation c. Acquires it by himself or through another d. Acquires property during pendency of litigation Failing to account or 6. misappropriation of client’s property presupposes fraudulent intent of lawyer. Immediate repayment by lawyer of client’s money or property after demand but before

institution by client of disbarment proceedings negate fraudulent intent. If the lawyer has a lien, it cannot be used as an excuse for not making an accounting. Collecting unreasonable 7. fees – Where the law fixes the maximum amount which lawyer may charge client, collection of more than what law allows constitutes malpractice. 8. Acting without authority - a lawyer can bind client without special power of attorney only on procedural matters 9. Willfully appearing without being retained -It must be willful, corrupt or contumacious in order that he may be held liable.

Breach of Duties to Bar Unethical conduct or unprofessional conduct - that which violates rules or ethical code of legal profession. b. Defaming fellow lawyer − Use of improper and objectionable language against another lawyer or accuse him wantonly and maliciously of a serious misconduct in the absence of reasonable cause constitutes misconduct. Strongly worded statements by a lawyer against opposing lawyer, if justified by records, may not justify disciplinary action against him. c. Encroaching upon business of another d. Soliciting business - for purpose of gain, personally or through paid agents is MALPRACTICE and agreeing with non-lawyer to divide lawyer’s fees paid by client or for solicitation by non-lawyer. e. Advertising a.


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OTHER GROUNDS FOR DISCIPLINE 1. NON-PROFESSIONAL MISCONDUCT Ge nera l Rule : Lawy er may not be susp ende d or disba rred for misc ondu ct in his nonprofe ssion al or priva te capa city. Exception: Where such is so GROSS to show him to be morally unfit for office or unworthy of privilege, court may be justified in suspending or removing him from the roll of attorneys. 2. GROSS IMMORALITY- AN ACT OF PERSONAL IMMORALITY ON THE PART OF THE LAWYER IN HIS PRIVATE RELATION WITH OPPOSITE SEX MAY PUT CHARACTER IN DOUBT. BUT TO JUSTIFY SUSPENSION OR DISBARMENT, THE ACT MUST NOT ONLY BE IMMORAL, IT MUST BE GROSSLY IMMORAL. ( ABAIGAR VS. PAZ ) Grossly Immoral Conduct – one so corrupt and false as to constitute criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree. Cohabitation per se is not grossly immoral, it depends on circumstances and it is not necessary LEGAL ETHICS

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that there be prior conviction for offense before lawyer may be disciplined for gross immorality. If the evidence is not sufficient to hold the lawyer liable for gross immorality, he may still be reprimanded where evidence shows failure on his part to comply with rigorous standards of conduct required from lawyers.

3. CONVICTION OF CRIME INVOLVING MORAL TURPITUDE All crimes of which fraud or deceit is an element or those inherently contrary to rules of right conduct, honesty or morality in civilized community 4. PROMOTING TO VIOLATE OR VIOLATING PENAL LAWS

5. MISCONDUCT IN DISCHARGE OF OFFICIAL DUTIES A lawyer who holds a government office may not be disciplined as a member of the bar for misconduct in the discharge of his duties as a government official. If the misconduct, however, is in violation of the Code of Professional Responsibility or of his oath as a lawyer or is of such a character as to affect his qualifications as a lawyer, he may be subject to disciplinary action such as disbarment (Collantes vs. Renomeron). This rule does not apply to impeachable officials like SC Justices, Members of the Constitutional Commission and Ombudsman because they can be removed only by impeachment. 6. COMMISSION OF FRAUD OR FALSEHOOD 7. MISCONDUCT AS NOTARY PUBLIC By applying for having himself commissioned as notary public, lawyer assumes duties in dual capacity, the nonperformance of which be may be a ground for discipline as member of bar. OFFICERS AUTHORIZED TO INVESTIGATE DISBARMENT CASES 1. Supreme Court 2.Integrated Bar of the Philippines (IBP) through its Commission on Bar Discipline or authorized investigators



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3. Office of the Solicitor General

GRIEVANCE PROCEDURE: DISBARMENT, SUSPENSION, AND DISCIPLINE OF ATTORNEYS (Rule 139-B) Proceedings for the disbarment, suspension and discipline of attorneys may be taken: 1. by the Supreme Court motu proprio, or, 2. by the IBP upon the verified complaint of any person The IBP Board of Governors may initiate and prosecute proper charges against erring attorneys including those in government: 1. motu propio or 2. upon referral by the SC or 3. by a Chapter Board of Officers or at the instance of any person. The complaint must be: 1. verified; 2. state clearly and concisely the facts complained of; 3. supported by affidavits of persons having personal knowledge of the facts therein alleged, or by such documents as may substantiate it; 4. six (6) copies shall be filed with the Secretary of IBP or any of its Chapters.

OUTLINE OF DISBARMENT PROCEEDING IN THE IBP (RULE139-B) 1. The case shall be assigned to a National Grievance Investigator where the Board of Governors shall appoint one from among IBP members of three (3) when special circumstances warrant; 2. If the complaint is meritorious, the respondent shall be served with a copy requiring him to answer within 15 days from service;

3. The respondent shall file an answer containing six (6) copies and shall verify the same; after receipt of the answer or lapse of the period to do so, the Supreme Court ,may, motu propio or at the instance of the IBP Board of Governors, upon recommendation by the Investigator, suspend an attorney from practice, for any of the causes under Rule 138, Sec. 27, during the pendency of the investigation; 4. After joinder of the issues or failure to answer, the respondent shall be given full opportunity to defend himself. But if the respondent fails to appear to defend himself inspite of notice, the investigator may proceed ex parte. The investigation shall be terminated within three (3) months from commencement which period may be extended; 5. The Investigator shall make a report to the Board of Governors within 30 days from termination of the investigation which report shall contain his findings and recommendations together with the evidence; 6. The Board of Governors shall have the power to review the decision of the Investigator. Its decision shall be promulgated within a period not exceeding 30 days from the next meeting of the Board following the submission of the report of the Investigator: a. If the decision is a finding of guilt of the charges, the IBP Board of Governors shall issue a resolution setting forth its findings and recommendations which shall be transmitted to the Supreme Court for final action together with the record; b. If the decision is for exoneration, or if the sanction is less than suspension or dismissal, the Board shall issue a decision exonerating the respondent or


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San Beda College of Law 39 MEMORY AID imposing a lesser sanction. The resolution exonerating the respondent shall be considered as terminating the case unless upon petition of the complainant or other interested party filed with the Supreme Court within 15 days from notice of the Board’s decision.

PROCEDURE FOR DISBARMENT IN THE SUPREME COURT 1. Upon the initiation of the complaint, the Supreme Court may refer the case for investigation to the Solicitor General, or any officer of the Supreme Court, or judge of a lower court; 2. If referred, the investigator shall proceed with the investigation and make a report to the Supreme Court. Rules in the Imposition of Penalties a. In case of Suspension Division − 1 year or less En Banc − exceeds 1 year b.

In case of Fine Division − P10,000 or less En Banc −P10,000 or more

c.

In case of both Suspension and Fine − en banc if the suspension exceeds 1 year or the fine exceeds P10, 000. In case of 2 or more suspensions − service will be successive, not simultaneous

d.

Investigating Judge CANNOT dismiss case CASE: The investigating judge’s authority is only to investigate, make a report and recommendation on the case to be submitted to the SC for final determination. [Graciano vs. Sebastian, 231 SCRA 588] Effect of desistance, withdrawal of complaint or non-appearance of complainant in disbarment proceedings LEGAL ETHICS

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The desistance or the withdrawal of the complainant of the charges against a judge does not deprive the court the authority to proceed to determine the matter. Nor does it necessarily result in the dismissal of the complaint except when, as a consequence of the withdrawal or desistance no evidence is adduced to prove the charges. This rule is founded on the rationale that a disbarment proceeding is neither civil nor criminal but one prosecuted solely for the public interest. What is important is whether the charges against the respondent have been duly proved. (Note: The same principle applies to administrative charges against judges.)

Doctrine of RES IPSA LOQUITOR (“the thing speaks for itself”) CASES: This principle or doctrine applies to both judges and lawyers. Judges had been dismissed from the service without need for a formal investigation because based on the records, the gross misconduct or inefficiency of the judges clearly appears. [Uy vs. Mercado, 154 SCRA 567]. The same principle applies to lawyers. Thus, on the basis of the lawyer’s comment or answer to a showcause order of SC, it appears that the lawyer has so conducted himself in a manner which exhibits his blatant disrespect to the court, or his want of good moral character or his violation of the attorney’s oath, the lawyer may be suspended or disbarred without need of a trial-type proceeding. What counts is that the lawyer has been given the opportunity to give his side. [Prudential Bank vs. Castro 155 SCRA 604] DEFE NSES The purpose and nature of disbarment proceedings make the number of defenses available in civil and criminal actions in inapplicable disciplinary proceedings. The Statute of Limitations is not a defense in disciplinary proceedings nor does the fact the circumstance that facts set up



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as ground for disbarment constitute crime, the prosecution for which in criminal action is barred by prescription, preclude the disbarment proceeding. However, the fact that a considerable length of time has lapsed from the date the misconduct took place to date the complaint for disbarment was filed may indicate ulterior motive on the part of complainant or innocence on the part of respondent.

MODIFYING CIRCUMSTANCES Extent of disciplinary action depends on attendance of mitigating or aggravating circumstance.

Mitigating Circumstances 1. Good faith 2. Want of intention to commit wrong 3. Lack of material damage to complainant 4. Desistance of complainant 5. Youth and inexperience, etc. Aggravating Circumstances 1. Abuse of authority or of attorney–client relationship 2. Sexual intercourse with a relative 3. Charge of gross immorality 4. Previous dismissal as member of the bar EFFECT OF EXECUTIVE PARDON If during the pendency of disbarment proceeding the respondent was granted executive pardon, the dismissal of the case on that sole basis will depend on whether the executive pardon is absolute or conditional. If the pardon is absolute, the disbarment case will be dismissed. However, if the executive pardon is conditional, the disbarment case will not be dismissed on the basis thereof. Absolute pardon by President may wipe out conviction as well as offense itself and the grant thereof in favor of a lawyer is a bar to a proceeding for disbarment against him based solely on commission of such offense. The reason is that the respondent lawyer, after the absolute

pardon, is as guiltless and innocent as if he never committed the offense at all. If absolute pardon is given to lawyer after being disbarred for conviction of crime, 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. In case of a conditional pardon, there will be a remission of unexpired period of sentence.

EFFECTS OF DEATH OF LAWYER DURING PENDENCY OF DISCIPLINARY ACTION AGAINST HIM 1. Renders action moot and academic 2. (But) court may still resolve case on the merit in order to clear publicly the name of the lawyer.

JUDGMENT DISMISSAL OF CASE In the absence of convincing or clearly preponderant evidence, disbarment case against him should be dismissed. However, the court can still impose conditions despite dismissal of disciplinary action against him, if the facts so warrant and in the event the lawyer fails to comply with such condition, it may suspend or disbar him for disobedience of its order. SUSPENSION OR DISBARMENT A lawyer who has been suspended or disbarred cannot practice law without being held liable for contempt of court. The suspended lawyer may be disbarred for violation of the suspension order. Such judgment does not prohibit pro se practice (Geeslin vs. Navarro; 185 SCRA). If the lawyer holds a government office which requires membership in the bar as an indispensable qualification, he may be dismissed from said office (Collantes vs. Renomeron; 200 SCRA).

REINSTATEMENT 2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE

AND




The Supreme Court has the exclusive authority to reinstate. This is based on its constitutional prerogative to promulgate rules on the admission of applicants to the practice of law. Petitioner must prove that he is once again fit and proper person to practice law. The following must be taken into consideration: 1. the applicant’s character and standing prior to disbarment; 2. the nature or character of misconduct for which he is disbarred; 3. his conduct subsequent to disbarment [Cui vs. Cui, 11 SCRA 755]; 4. including his efficient government service [In re Adriatico, 17 Phil 324] 5. the time that has elapsed between disbarment and the application for reinstatement and the circumstances that he has been sufficiently punished and disciplined [Prudential Bank vs. Benjamin Grecia, 192 SCRA 381] 6. applicant’s appreciation of significance of his dereliction and his assurance that he now possesses the requisite probity and integrity; 7. favorable endorsement of the IBP, pleas of his loved ones [Yap Tan vs. Sabandal, 170 SCRA 207]. The court may require applicant for reinstatement to enroll in and pass the required fourth year review classes in a recognized law school. [Cui vs. Cui, 11 SCRA 755; In re Rusiana, 56 SCRA 240] A previously disbarred lawyer who is given absolute pardon by the President is not automatically reinstated, he must still file a petition for reinstatement with the SC.

Condition for Reinstatement A lawyer who has been suspended or disbarred may be reinstated when the SC is convinced that he has already possessed the requisites of probity and integrity necessary to LEGAL ETHICS

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guarantee his worth to practice his profession.

EFFECTS OF REINSTATEMENT 1. Recognition of moral rehabilitation and mental fitness to practice law; 2. Lawyer shall be subject to same law, rules and regulations as those applicable to any other lawyer; 3. Lawyer must comply with the conditions imposed on his readmission

IV. JUDICIAL ETHICS Judicial Ethics − branch of moral science which treats of the right and proper conduct to be observed by all judges and magistrates in trying and deciding controversies brought to them for adjudication which conduct must be demonstrative of impartiality, integrity, competence, independence, and freedom from improprieties. Court − a board or other tribunal which decides a litigation or contest Judge − a public officer who, by virtue of his office, is clothed with judicial authority De Jure Judge − one who is exercising the office of a judge as a matter of right; an officer of a court who has been duly and legally appointed De Facto Judge − an officer who is not fully invested with all the powers and duties conceded to judges, but exercising the office of a judge under some color of right

QUALIFICATIONS Supreme Court and Court of Appeals Justices 1. Natural-born citizen of the Philippines; 2. At least 40 years of age;




42

3.

4.

Must have been for 15 years or more a judge of a lower court or engaged in the practice of law; Must be a person of proven competence, integrity, probity and independence.

RTC Judges 1. Natural-born citizen of the Philippines; 2. At least 35 years of age; 3. For at least 10 years has been engaged in the practice of la w in the Philippines or has held a public office in the Philippines requiring admission to the practice of law as an indispensable requisite. MTC Judges 1. Natural-born citizen of the Philippines; 2. At least 30 years of age; 3. For at least 5 years has been engaged in the practice of law in the Philippines or has held public office in the Philippines requiring admission to the practice of law as an indispensable requisite. JUDICIAL DEPORTMENT Attitude Towards Counsel He must be courteous especially to the young and inexperienced. He should not interrupt in their arguments except to clarify his mind as to their positions. He must not be tempted to an unnecessary display of learning or premature judgment. He may criticize and correct unprofessional conduct of a lawyer but not in insulting manner. Attitude Toward Litigants and Witness He must be considerate, courteous and civil, and he must not utter intemperate language during hearing of case. Proper Judicial Conduct Conduct self as to be beyond reproach and suspicion and be free from appearance of impropriety in their personal behavior not only in discharge of official duties but also in their everyday life.

Cold Neutrality of Impartial Judge A judge should not only render just, correct and impartial decision but do so in manner free from suspicion as to its fairness and impartiality and as to his integrity. It is indispensable requisite of due process.

NEW CODE OF JUDICIAL CONDUCT FOR THE PHILIPPINE JUDICIARY ( A.M. No. 03-05-01-SC) (June 1, 2004) supersedes the Canons of Judicial Ethics and the Code of Judicial Conduct to the extent that the provisions or concepts therein are embodied in this Code, provided, that in case of deficiency or absence of specific provisions in this Code, the Canons of Judicial Ethics and the Code of Judicial Conduct shall be applicable in a suppletory character. 

CANON-

i. ii. iii. iv. v. vi.

Independence Integrity Impartiality Propriety Equality Competence and Diligence

PURPOSE: to update and correlate the Code of Judicial Conduct and the Canons of Judicial Ethics adopted for the Philippines, but also to stress the Philippines’ solidarity with the universal clamor for a universal code of judicial ethics.

CANON 1: INDEPENDENCE In performing judicial duties, judges should: 1. function independently on the basis of their assessment of the facts and in accord with a conscientious understanding of the law, free from any extraneous influence,


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San Beda College of Law 43 MEMORY AID inducement, pressure, threat or interference. 2. be independent from judicial colleagues in respect of decisions. 3. not allow family, social, or other relationships to influence judicial conduct or judgment. (NOTE: The prestige of judicial office shall not be used or lent to advance the private interests of others, nor convey or permit others to convey the impression that they are in a special position to influence the judge.) 4. be free from inappropriate connections with, and influence by, the executive and legislative branches of government. 5. be independent in relation to society in general and in relation to the particular parties to a dispute which she/he has to adjudicate. 6. encourage and uphold safeguards for the discharge of judicial duties. (REASON: To maintain and enhance the institutional and operational independence of the judiciary.) 7. exhibit and promote high standards of judicial conduct. (REASON: To reinforce public confidence in the judiciary.) 

Judges shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court or administrative agency.

CANON 2: INTEGRITY Conduct of judges must: 1. be above reproach, and be so in the view of a reasonable observer. 2. reaffirm the people’s faith in the integrity of the judiciary. 

Judges should take or initiate appropriate disciplinary measures against lawyers or court personnel

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for unprofessional conduct of which the judge may have become aware.

CANON 3: IMPARTIALITY 

Judges shall perform their judicial duties without favor, bias or prejudice.

DISQUALIFICATIONS OF JUDGES Grounds for Disqualification and Inhibition of Judges Under the New Code of Judicial Conduct: Judges shall disqualify themselves from participating in any proceedings in which they are unable to decide the matter impartially OR in which it may appear to a reasonable observer that they are unable to decide the matter impartially. Such proceedings include, but are NOT limited to, instances where: 1. the judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings; 2. the judge previously served as a lawyer or was a material witness in the matter in controversy; 3. the judge, or a member of his or her family, has an economic interest in the outcome of the matter in controversy; 4. the judge served as executor, administrator, guardian, trustee, or lawyer in the case or matter in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein; 5. the judge’s ruling in a lower court is the subject of review; 6. the judge is related by consanguinity or affinity to a party litigant within the sixth civil degree or to counsel within the fourth civil degree; or 7. the judge knows that his or her spouse or child has a financial interest, as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in



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controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceedings. (Sec. 5)

Remittal of Disqualification: A judge disqualified as stated above may, instead of withdrawing from the proceeding, disclose on the records the basis of disqualification. If based on such disclosure, the parties and lawyers independently of the judge’s participation, all agree in writing that the reason for the inhibition is immaterial or unsubstantial, the judge may then participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceedings. (Sec. 6) Grounds for Disqualification and Inhibition of Judges Under the Rules of Court: 1. Mandatory or Compulsory Disqualification [Rule 137, ROC] a. when he, or his wife, or child is pecuniarily interested as heir, legatee, creditor or otherwise b. when he is related to either party within the sixth (6th) degree of consanguinity or affinity or to counsel within the fourth (4th) civil degree c. when he has been an executor, guardian, administrator, trustee or counsel d. when he has presided in an inferior court where his ruling or decision is subject to review 2. Voluntary Inhibition A judge may, in the exercise of his sound discretion disqualify himself, for just and valid reasons other than those mentioned above. [Section 1, Rule 137] This leaves the discretion to the judge to decide for himself questions as to whether he will desist from sitting in case for other just and valid reasons with only his conscience to guide him, unless he cannot discern for himself his inability to meet the test of the cold

neutrality required of him, in which event the appellate court will see to it that he disqualifies himself. A decision to disqualify himself is not conclusive and his competency may be determined on application for mandamus to compel him to act. Judge’s decision to continue hearing a case in which he is not legally prohibited from trying notwithstanding challenge to his objectivity may not constitute reversible error. The filing of an administrative case against a judge does not disqualify him from hearing a case. The court has to be shown other than the filing of administrative complaint, act or conduct of judge indicative of arbitrariness or prejudice before the latter being branded as the stigma of being biased or partial.

*DISQUALIFICATION vs. INHIBITION DISQUALIFICATION

INHIBITION

1. The Rules enumerates the specific and exclusive grounds under which any judge or judicial officer is disqualified from acting as such.

1. The Rules does not expressly enumerate the specific grounds for inhibition but merely gives a broad basis thereof, i.e. good, sound or ethical grounds

2. Rule gives the judicial officer no discretion to try or sit in a case

2. Rules leaves the matter of inhibition to the sound discretion of the judge

CASE: The second paragraph of Section 1, Rule 137 does not give the judge the unfettered discretion to decide whether or not he will desist from hearing a case. the inhibition must be for just and valid causes. The mere imputation of bias or partiality is not enough grounds for a judge to inhibit, especially when the same is without any


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San Beda College of Law 45 MEMORY AID basis. (People vs. Kho, 357 SCRA 290, April 20, 2001)

CANON 4: PROPRIETY Judges shall, in their personal relations with individual members of the legal profession who practice regularly in their court, avoid situations which might reasonably give rise to the suspicion or appearance of favoritism or partiality. (Sec. 3) Judges shall not allow the use of their residence by a member of the legal profession to receive clients of the latter or of other members of the legal profession. (Sec. 5)

PROHIBITION TO DISCLOSE INFORMATION Confidential information acquired by judges in their judicial capacity shall not be used or disclosed by for any other purpose related to their judicial duties. (Sec. 9) The prohibition will discourage if not stop judges from making business speculations in some business ventures, the secrets of which he learned by reason of his position as a judge. The judge may be liable for violation of Section 3(k) of RA 3019 – “divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons or releasing such information in advance of its authorized release due.” Violation of the rule may also lead to “revelation of secrets by an officer” or to “revelation of the secrets of a private individual” punishable by Articles 229 and 230 of the Revised Penal Code respectively.

PROHIBITION TO PRACTICE LAW Judges shall not practice law whilst the holder of judicial office. (Sec. 11) Section 35 of Rule 138 of Rules of Court prohibits judges, officials or employees of superior courts xxx from engaging in private practice as members LEGAL ETHICS

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of the bar and in giving professional advice to clients.

CASES: The reason for the prohibition has been explained in Dia Anonuevo vs. Bercacio [68 SCRA 81] . The Supreme Court held that the rule disqualifying a municipal judge from engaging in the practice of law seeks to avoid the evil of possible use of the power and influence of his office to affect the outcome of a litigation where he is retained as counsel. Compelling reasons of public policy lie behind this prohibition, and judges are expected to conduct themselves in such a manner as to preclude any suspicion that they are representing the interests of party litigant. In De Castro vs. Capulong [118 SCRA 52] a judge who merely acted as a witness to a document and who explained to the party waiving his right of redemption over the mortgaged properties and the consequences thereof does not engage himself in the practice of law. PROHIBITION AGAINST ACCEPTING GIFTS, BEQUEST OR LOANS General Rule: (1) Judges and members of their families, as well as (2) court staff or others subject to their influence, direction or authority, shall neither ask for, nor accept, any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done by him or her in connection with the performance of judicial duties. (Sec. 13 and 14) Exception: Subject to law and to any legal requirements of public disclosure, judges may receive a token, gift, award or benefit as appropriate to the occasion on which it is made provided that such gift, award or benefit might not reasonably be perceived as intended to influence the judge in the performance of judicial duties or otherwise give rise to an appearance of partiality.(Sec. 15) Bribery; Direct or Indirect Acceptance of gifts given by reason of the office of the judge is indirect bribery [Art. 211 Revised Penal




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Code] and when he agrees to perform an act constituting a crime in connection with the performance of his official duties in consideration of any offer, promise, gift or present receive by such officer, he is guilty of direct bribery. [Art. 210 Revised Penal Code]

Anti-Graft and Corrupt Practices Act Under RA 3019, the judge is liable criminally for directly or indirectly receiving gifts, present or other pecuniary or material benefit for himself or for another under conditions provided in Section 2, b and c of the law.. Exception: Excepted are unsolicited gifts or presents of small value offered or given as a mere ordinary token of gratitude or friendship according to local custom or usage [Section 14, RA 3019]. Void Donations Under the Civil Code Donations given to a judge or to his wife, descendants or ascendants by reason of his office are void [Art. 739, Civil Code]. Ownership does not pass to the donee. Money or property donated is recoverable by the donor, his heirs or creditors. Loans Prohibited Under the Constitution Under Section 16 Article XI “No loan, guarantee or other form of financial accommodation for any business purpose may be granted directly or indirectly by any government-owned or controlled bank or financial institution to xxx members of the Supreme Court xxx during their tenure.” Taking or Receiving Loans From Litigants It is a serious misconduct for a judge to receive money from a litigant in the form of loans which he never intended to pay back. Even if the judge intends to pay, it is an act of impropriety to take a loan from a party-litigant. The judge could not be wholly free from bias in deciding a case where his lender is a party. A judge should always strive to be free from suspicion and all forms of improprieties.

Judges shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice towards any person or group on irrelevant grounds. (Sec. 2)

CANON 6: COMPETENCE AND DILIGENCE Judges shall take reasonable steps to maintain and enhance their knowledge, skills and personal qualities necessary for the proper performance of judicial duties, taking advantage for this purpose of the training and other facilities which should be made available, under judicial control, to judges. (Sec. 3)

CASE: Judges must be conscientious, studious and thorough,[83] observing utmost diligence in the performance of their judicial functions.[84] They have to “exhibit more than just cursory acquaintance with statutes and procedural rules.” Moreover, they must require court personnel to observe at all times high standards of public service and fidelity. ( Atty. Fabella vs. Judge Lee, A.M. No. MTJ-04-1518. January 15, 2004) Judges shall maintain order and decorum in all proceedings before the court and be patient, dignified and courteous in relation to litigants, witnesses, lawyers and others with whom the judge deals in an official capacity. Judges shall require similar conduct of legal representatives, court staff and others subject to their influence, direction or control. (Sec. 6)

CODE OF JUDICIAL CONDUCT (October 20 1989)

Canon1: Uphold the integrity and independence of the judiciary 2: Avoid impropriety and the appearance of impropriety 3: Perform official duties honestly, and with impartiality and diligence 4: With due regard to official duties, engage in activities to improve the law,

CANON 5: EQUALITY 2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE

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San Beda College of Law 47 MEMORY AID the legal system and the administration of justice 5: Regulate extrajudicial activities to minimize the risk of conflict with judicial duties

CANON 1: PROMPT DISPOSITION OF CASES A judge should administer justice impartially and without delay. [Rule 1.02] A judge shall dispose of the court’s business promptly and decide cases within the required periods. [Rule 3.05] CASES: In the Request of Judge Irma Zita Masamayor [A.M. NO. 99-1-16, RTC, June 21 1999] it was held that cognizant of the caseload of judges and mindful of the pressure of their work, the Supreme Court almost always grants requests for extension of time to decide cases. A heavy caseload may excuse a judge’s failure to decide cases within the reglementary period, but not his or her failure to request for an extension of time before the expiration of the period to be extended. In Bernardo vs. Judge Amelia Fabros [A.M. NO. MTJ-99-1189, May 12, 1999], the Supreme Court has always considered the failure of a judge to decide a case within the reglementary period as GROSS INEFFICIENCY and imposed either fine or suspension from service without pay for such. The fines imposed vary in each case, depending chiefly on the number of cases not decided within the reglementary period and other factors to wit: the presence of aggravating circumstances – the damage suffered by the parties as a result of the delay, the health and age of the judge, etc.

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judge’s official functions does not mean he is totally free from blame. Canon 2 of the Code of Judicial Conduct provides that a judge should not only avoid impropriety but also the appearance of impropriety in all his activities. He should behave at all times as to promote public confidence in the integrity and impartiality of the judiciary. He should be extra careful in all his dealings – both in his professional and individual capacities – in order to promote and protect the image of the judiciary to which he is privileged to belong. Respondent, in removing the bamboo poles and fishing nets installed by complainant, acted in his private capacity. Nevertheless, without in any way prejudging respondent’s liability, respondent should be admonished to be careful even in his private conduct because he is a model of the law-abiding citizen and, for this reason, his private life cannot be completely separated from his public persona. (Bernardo vs. Judge Tiamson, A.M. No. RTJ-00-1565. August 6, 2001) In Prosecutor Leo Tabao vs. Judge Pedro Espina [A.M. NO. RTJ-961347, June 29, 1999] it was held that apropos the issue on the hasty rendition of judgment in a criminal case, the Supreme Court has reminded members of the bench time and again that as exemplars of justice and law, judges must avoid not only impropriety but even the appearance of impropriety in all their actions. Neither should they take undue interest in the settlement of criminal cases as the same may compromise the integrity and impartiality of their office. A judge should so behave at all times as to promote public confidence in the integrity of the judiciary. [Rule 2.01]

CANON 2: AVOIDANCE OF IMPROPRIETY A judge should avoid impropriety and the appearance of impropriety in all activities. CASES: In Manuel vs. Judge Demetrio Calimay, Jr. [A.M. NO. RTJ-99-1441, May 28, 1999] it was held that the fact that the charges proffered in the instant case do not directly refer to respondent LEGAL ETHICS

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CANON 3: PERFORMANCE OF DUTIES WITH HONESTY, IMPARTIALITY AND DILIGENCE A judge should perform official duties honestly and with impartiality and diligence.



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A judge shall be faithful to the law and maintain professional competence. [Rule 3.01]

CASE: In the case Exequiel Domingo vs. Judge Luis Reyes [A.M. NO. MTJ-981165, June 21, 1999] the Supreme Court held that judges are expected to keep abreast of developments in law and jurisprudence. The SC does not countenance respondent judge’s failure to inform himself of recent jurisprudential rules. His error, while an honest one and committed for the purpose of achieving the ends of justice, must never happen again. Respondent judge was reprimanded for IGNORANCE OF THE LAW. Where a partner accepts public office, he shall withdraw from the firm and his name shall be dropped from the firm name unless the law allows him to practice concurrently. [Rule 3.03] A judge cannot take refuge behind the inefficiency or mismanagement by court personnel. Proper and efficient court management is as much as his responsibility. It is also his duty to organize and supervise the court personnel to ensure the prompt and efficient dispatch of business.

CANON 4: ENGAGING IN ACTIVITIES TO IMPROVE THE LAW A judge may, with due regard to official duties, engage in activities to improve the law, the legal system and the administration of justice. A judge may, to the extent that the following activities do not impair the performance of judicial duties or cast doubt on the judge’s impartiality: a. speak, write, lecture, teach or participate in activities concerning the law, the legal system and the administration of justice; b. appear at public hearing before a legislative or executive body on matters concerning the law, the legal system or the administration of justice and otherwise consult with them on matter concerning the administration of justice;

c.

serve on any organization devoted to the improvement of the law, the legal system or the administration of justice. [Rule 4.01]

CANON 5: REGULATION OF THE EXTRAJUDICIAL ACTIVITIES OF A JUDGE A judge should regulate extrajudicial activities so as to minimize the risk of conflict with judicial duties.

AVOCATIONAL/CIVIC/CHARITABLE ACTIVITIES A judge may engage in the following activities provided that they do not interfere with the performance of judicial duties or detract from the dignity of the court: write, lecture, teach and speak on non-legal subject a. engage in the arts, sports and other special recreational activities b. participate in civic and charitable activities c. serve as an officer, director, trustee, or non-legal advisor of a non-profit or non-political, educational, religious, charitable, and fraternal or civic organization. [Rule 5.01] FINANCIAL ACTIVITIES A judge shall refrain from financial and business dealings: 1. that tend to reflect adversely on the court’s impartiality with the proper 2. that interfere performance of judicial activities increase involvement with 3. that lawyers or persons likely to come before the court [Rule 5.02] A judge should so manage investments and other financial interests as to minimize the number of cases giving grounds for disqualification. Subject to the provisions of the preceding rule, a judge may hold and manage investments but should not serve as an officer, director, manager, advisor, or employee of any business except as director of a family business of the judge. [Rule 5.03] FIDUCIARY ACTIVITIES


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San Beda College of Law 49 MEMORY AID PROHIBITION TO SERVE AS EXECUTOR, ADMINISTRATOR, ETC.  General Rule: The judge shall not serve as (a) executor, (b) administrator, (c) trustee, (d) guardian, (e) fiduciary.  Exception: when the estate, trust, ward or person for whom he will act as executor, administrator, trustee, guardian or fiduciary is a member of the immediate family- which is limited to the spouse and relatives within the second degree of consanguinity – provided that the judge’s services as fiduciary shall not interfere with the performance of his judicial functions [Rule 5.06]. In such exceptional cases, the judge SHALL NOT: a. serve in proceeding that might come before the court of said judge b. act as such contrary to Rules 5.02 to 5.05. ( Note: the relationship mentioned is by consanguinity and not by affinity.) PROHIBITION TO BE APPOINTED IN QUASI-JUDICIAL AND ADMINISTRATIVE AGENCIES A judge shall not accept appointment or designation to any agency performing quasi-judicial or administrative functions. [Rule 5.09] The prohibition is based on Section 12, Art. VIII of the Constitution which provides: “The members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.” The appointment to such positions will likely interfere with the performance of the judicial functions of a judge hence, the prohibition. PROHIBITION TO ENGAGE IN POLITICAL ACTIVITIES A judge is entitled to entertain personal views on political questions. But to avoid suspicion of political partisanship, a judge shall not make political speeches, contribute to party funds, publicly endorse candidates for LEGAL ETHICS

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political office or participate in other partisan political activities. [Rule 5.10]

LIABILITY OF JUDGES In the absence of fraud, dishonesty or corruption, acts of judge in his judicial capacity not subject to disciplinary action even though such acts are erroneous. He can’t be subject to liability – criminal, civil, administrative for any of his official acts, no matter how erroneous, so long as he acts in good faith. In such a case, the remedy of aggrieved party is not to file administrative complaint against the judge but to elevate error to higher court for review and correction

When a Judge May Be Held Liable: Civil, Criminal and Administrative 1. Malfeasance 2. Misfeasance 3. Knowingly rendering unjust judgment or interlocutory order 4. Malicious delay in administration of justice Giving private party 5. unwarranted benefit in exercise of judicial function thru manifest partiality, evident bad faith and gross inexcusable negligence. CIVIL LIABILITIES OF JUDGES IN RELATION TO THEIR OFFICIAL FUNCTIONS 1. Any public officer or employee or any private individual, who directly or indirectly obstructs, defeats and violates or in any manner impedes or impairs the civil rights and liberties of persons shall be liable for damages. [Art. 32, Civil Code] The responsibility for damages is not however demandable of judges except when the act or omission of the judge constitutes a violation of the P enal Code or other penal statute. [Art. 32, last par.] 2. A judge who willfully or negligently renders a decision causing damages to another, shall indemnify the latter for the same.



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A judge is also civilly liable for damages, if in refusing or neglecting to decide a case without just cause, a person suffered material or moral loss without prejudice to any administrative action that may be taken against him. [Art. 27, Civil Code]

DISABILITIES OF JUDGES UNDER THE CIVIL CODE 1. Art. 1491. The following persons cannot acquire by purchase, even at a public or judicial action, either in person or through the mediation of another: xxx (5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts and other officers and employees connected with the administration of justice, the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions, this prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession. Xxx

In order that a judge may be held liable for knowingly rendering an unjust judgment, it must be shown beyond doubt that the judgment is unjust as it is contrary to law or is not supported by evidence and the same was made with conscious and deliberate intent to do an injustice. [In Re: Climaco, 55 SCRA 107] If the decision rendered by the judge is still on appeal, the judge cannot be disqualified on the ground of knowingly rendering an unjust judgment. [Abad vs. Blaza, 145 SCRA 1] 2. Judgment Rendered Through Negligence – Any judge who, by reason of inexcusable negligence or ignorance shall render a manifestly unjust judgment in any case submitted to him for decision shall be punished by arresto mayor and temporary special disqualification. [Art. 205 Revised Penal Code] Negligence and ignorance are inexcusable if they imply a manifest injustice which cannot be explained by reasonable interpretation. [In Re Climaco, 55 SCRA 107] 4.

2. Art. 739. Donations made to a judge, his wife, descendants and ascendants by reason of his office are void. CRIMINAL LIABILITIES OF JUDGES IN RELATION TO THEIR OFFICIAL FUNCTIONS 1. Misfeasance Knowingly Rendering a. Unjust Judgment - Any judge who shall knowingly render an unjust judgment in any case submitted to him for decision shall be punished by prision mayor and perpetual absolute disqualification. [Art. 204 Revised Penal Code] Manifestly Unjust b. Judgment- it is one which is so patently against the law, public order, public policy and good morals that a person of ordinary discernment can easily sense its invalidity and injustice.

Knowingly Rendering an Unjust Interlocutory Order – Any judge who shall knowingly render an unjust interlocutory order or decree shall suffer the penalty of arresto mayor in its minimum period and suspension; but if he shall have acted by reason of inexcusable negligence or ignorance and the interlocutory order or decree be manifestly unjust, the penalty shall be suspension. [Art. 206, Revised Penal Code]

Maliciously Delaying the Administration of Justice – The penalty of prision correccional in its minimum period shall be imposed upon any judge guilty of malicious delay in the administration of justice. To make the judge liable, the act must be committed maliciously with deliberate intent to prejudice a party in a case. 5.


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San Beda College of Law 51 MEMORY AID 6. Malfeasance Under the Anti-Graft and Corrupt Practices Act A judge is criminally liable for causing an undue injury to a person or giving any private party an unwarranted benefit, advantage or preference in the discharge of his official function through manifest partiality, evident bad faith and gross inexcusable negligence. [Section 3(e), R.A. 3019]

DISCIPLINE OF MEMBERS OF THE BENCH POWER TO DISCIPLINE ERRING MEMBERS OF THE BENCH The has Supreme Court administrative supervision over all courts and the personnel thereof [Section VI, Art. VIII, Constitution]. The Court en banc has the power to discipline all judges of lower courts including justices of the Court of Appeals. It may even dismiss them by a majority vote of the members who actually took part in the deliberation of the issues in the case and voted thereon [Section XI, Art. VIII, Constitution]. The inferior courts (MTCs) are not empowered even just to suspend an attorney, although they may cite or hold a lawyer in contempt of court for contemptuous acts. Justices and judges, who are also lawyers, if found guilty of certain crimes and / or of the causes for disbarment under the Rules of Court may also be disbarred. Justices of the Supreme Court however may not be disbarred unless and until they shall have been first impeached in accordance with the Constitution. The same is true with the other impeachable officers who are members of the bar. CASE: While it is our duty to investigate and determine the truth behind every matter in complaints against judges and other court personnel, it is also our duty to see to it that they are protected and exonerated from baseless administrative charges. The Court will not shirk from its LEGAL ETHICS

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responsibility of imposing discipline upon its magistrates, but neither will it hesitate to shield them from unfounded suits that serve to disrupt rather than promote the orderly administration of justice. ( Ocenar vs. Judge Mabutin, A.M. No. MTJ-05-1582, February 28, 2005 )

GROUNDS FOR DISCIPLINE OF JUDGES [Section 1, Rule 140, Revised Rules of Court] 1. Serious Misconduct 2. Inefficiency Misconduct - implies malice or a wrongful intent, not a mere error of judgment. For serious misconduct to exist there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law or were in persistent disregard of wellknown legal rules. Inefficiency - implies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence and circumspection which the law requires in the rendition of any public service. CASES: In the case of In Re: Leaves Of Absence Without Approval Of Judge Eric Calderon [A.M. 98-8-105 MTC, January 26, 1999] - Judge Calderon was found guilty of gross misconduct, abandonment of office and was dismissed due to his frequent leave of absence totaling to 3 years which were not approved and his explanations were inexcusable. He has caused great disservice to many litigants and has denied them speedy justice. In the case of In Re: Judge Danilo Tenerife [255 SCRA 184] - The failure of a judge to decide even a single case within the 90-day period was considered gross inefficiency warranting the imposition of fine equivalent to his one month salary.



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Effect of resignation or retirement of a judge when there is a pending administrative case against him The retirement/resignation of a judge may or may not render the administrative complaint moot and academic. Each case will be determined according to its surrounding circumstances. (Pagayao vs. Imbing, A.M. No. 89-403. August 15, 2001; Lilia vs. Judge Famunal, A.M. No. RTJ-991503. December 13, 2001) According to Pesole vs. Rodriguez [81 SCRA 208] the acceptance by the President of the resignation does not necessarily render the case moot or deprive the SC of the authority to investigate the charges. The court retains its jurisdiction either to pronounce the respondent official innocent of the charges or declare him guilty thereof. A contrary rule will be fraught with injustice and pregnant with dreadful and dangerous implications. PROCEDURE FOR DISCIPLINE OF JUDGES (RULE 140) Complaint, in writing 1. and duly sworn to is filed with the Supreme Court. [Sec. 1] If found meritorious, a 2. copy thereof shall be served on the respondent and he shall be required to comment within 10 days of service. [Sec. 6] 3. Upon filing of respondent’s comment or expiration of the period upon filing comment, the SC either refers the matter to the Office of the Court Administrator (OCA) for evaluation, report, and recommendation, or assigns a Justice of the Court of Appeals (if respondent is an RTC judge) or a judge of the RTC (if respondent is a judge of an inferior court) to investigate and hear the charges. [Sec. 7] 4. After hearings, the investigating justice or judge submits a report of finding of fact, conclusions of law and recommendations to the Supreme Court. [Sec. 8]

The Supreme Court takes action as the facts and the law may warrant. [Sec. 9] Proceedings shall be private and confidential but a copy of the decision or resolution of the Court shall be attached to the record of the judge in the Office of the Court Administrator. [Sec. 11] 5.

QUANTUM OF EVIDENCE REQUIRED The ground for the removal of a judicial officer should be established beyond reasonable doubt. Such is the rule where the charges on which the removal is sought is misconduct in office, willful neglect, corruption, or incompetence. The general rules in regard to admissibility of evidence in criminal trials apply. For liability to attach, the assailed order, decision or actuation of the judge in the performance of official duties must not only found to be erroneous but, most importantly, it must be established that he was moved by bad faith, dishonesty, hatred or some other like motive. Similarly, a judge will be held administratively liable for rendering an unjust judgment — one which is contrary to law or jurisprudence or is not supported by evidence — when he acts in bad faith, malice, revenge or some other similar motive. In other words, in order to hold a judge liable for knowingly rendering an unjust judgment, it must be shown beyond reasonable doubt that the judgment was made with a conscious and deliberate intent to do an injustice. ( Judge De Guzman vs. Dy, A.M. No. RTJ03-1755, July 3, 2003) IMPEACHMENT PROCEEDINGS AGAINST JUDGES Penal in nature governed by rules on criminal case and therefore requires proof beyond reasonable doubt. Only SC justices are subject to impeachment. MISCONDUCT Reliable evidence showing that judicial actions are corrupt or inspired by intent to violate the law or in persistent disregard of legal rules.


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San Beda College of Law 53 MEMORY AID Justices and Judges may not be investigated under the grievance procedure in Rule 139-B, sec. 1 of the Revised Rules of Court. Complaints against justices and judges are filed with the Supreme Court which has administrative supervision over all courts. As a matter of practice, the Supreme Court has assigned complaints against Municipal or Metropolitan Trial Judges to an Executive Judge of a Regional Trial Court and complaints against judges of Regional Trial Courts to a justice of the Court of Appeals, while a complaint against a member of the Court of Appeals would probably be assigned to a member of the Supreme Court for investigation, report and recommendation. Retired SC Justices are now tasked for this purpose.

REINSTATEMENT OF JUDGE PREVIOUSLY DISCIPLINED No indication that he is inspired by corrupt motives or reprehensive purpose in the performance of his functions. Factors to be considered 1. Unsullied name & service of record prior to dismissal 2. Commitment to avoid situation that spur suspicion of arbitrary conditions. 3. Complainant mellowed down in pushing from his removal 4.

Length of time separated from service

V. INTEGRATED BAR OF THE PHILIPPINES IBP is the national organization of lawyers created on January 16, 1973 under Rule 139-A, Rules of Court and constituted on May 4, 1973 into a body corporate by P.D. No. 181 As the official national unification of the entire lawyer population of the Philippines this requires membership and financial support in reasonable amount of every LEGAL ETHICS

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attorney as conditions sine qua non to the practice of law and the retention of his name in the Roll of Attorneys. The IBP Board of Governors is authorized to provide in the By-Laws for grievance procedure for the enforcement and maintenance of discipline among all the members of the IBP, but no action involving the suspension or disbarment of a member or the removal of his name from the Roll of Attorneys shall be effective without the final approval of the Supreme Court. [Rule 139-A,Section 12, Rules of Court]

CASE: Compulsory membership to the IBP is not violative of a lawyer’s freedom of association. Integration does not make a lawyer a member of any group of which he is already a member. He became a member of the bar when he passed the Bar Examinations. All that integration actually does is to provide an official national organization for the well defined but unorganized and incohesive group of which every lawyer is already a member. [In re: Edillon A.M. 1928] Voluntary termination of IBP membership, How Effected By filing a verified notice to that effect with the Secretary of IBP who shall immediately bring the matter to the attention of the SC. Forthwith, he shall cease to be a member and his name shall be stricken from the Roll of Attorneys. Effect of failure to pay annual membership dues to the IBP The failure of any attorney to pay his annual membership dues for 6 months shall warrant suspension of his membership in the IBP and default of such payment for one year shall be a ground for the removal of his name from the Roll of Attorneys. [Sec. 10, Rule 139-A, Rules of Court]. A lawyer may not be CASES: disciplined either by the IBP or the Court for failing to pay her obligation to complainant, a matter in her nonprofessional or private capacity. [Toledo vs. Abalos, A. C. No. 5141, September 29, 1999]



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