UP COLLEGE OF LAW, D2017
LEGAL PROFESSION NOTES ON THE CODE OF PROFESSIONAL RESPONSIBILITY BY RUBEN AGPALO
Castro | Del Rosario | Desquitado | Digao Fumar | Gonzales | King | Malit | Mallari Manuel | Salazar | Soco | Tolentino Tristeza | Velasco | Vinluan
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CHAPTER I. THE LAWYER AND SOCIETY A. INTRODUCTORY
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DEFINITIONS - “Legal ethics” – embodiment of all principles of morality and refinement that should govern the conduct of every member of the bar; the branch of moral science which treats of the duties which an attorney owes to the court, his client, his colleagues in the profession, and to the public. - “lawyer” – that class of persons who by license are officers of the court and who are empowered to appear, prosecute, and defend and on whom peculiar duties, responsibilities and liabilities are devolved by law as a consequence. o Those who pass the Shari’a Bar are not entitled to be called “attorneys”, unless they have also been admitted to the Philippine Bar. - “counsel de parte” – is an attorney retained by a party litigant, usually for a fee, to prosecute or defend his cause in court. implies freedom of choice either on the part of the attorney to accept or decline the employment, or on the part of the litigant to continue or terminate the retainer at any time - “counsel de oficio” – attorney appointed by the court to defend an indigent defendant in a criminal action. no other choice by the litigant than the acceptance of whoever is appointed as his counsel - “attorney of record” – attorney whose name, together with his address, is entered in the record of a case as the designated counsel of the party litigant in the case, and to whom judicial notices relative thereto are sent. - “of counsel” – experienced lawyer, who is usually a retired member of judiciary, employed by law firms as consultant
“amicus curiae” – an experienced and impartial attorney invited by the court to appear and help in the disposition of issues submitted to it. “bar” – legal profession “bench” – judiciary
PRELIMINARY - A practicing lawyer is constantly confronted with conflicting loyalties which he must reconcile. - He should no nothing which may tend to lessen in any degree the public confidence in the fidelity, honesty and integrity of the legal profession. - Hence, professional standards serve as the lawyer’s chart and compass to resolve difficult questions of duty and help minimize ethical delinquencies. - In 1917, the Philippine Bar Association adopted as its own, Canons 1-32 of the Canons of Professional Ethics of the American Bar Association. - In 1946, it again adopted as its own, Canons 33-47 of the ABA. - A sense of identity and the necessity of restating the canons to conform with present-day realities and reflect the local customs, traditions and practices of the bar dictate that the Philippine Bar formulates its own Code. - Hence, in 1980, the IBP proposed the Code of Professional Responsibility, which was passed to the SC for approval. It was promulgated by the Supreme Court on June 21, 1988. - The Code consists of 22 Canons and 77 Rules, which are divided into four chapters, namely: o The Law and Society o The Lawyer and the Legal Profession o The Lawyer and the Courts o The Lawyer and the Clients.
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The Code establishes norms of conduct and ethical standards for all lawyers, including those in the government service, to observe in their professional, official, and private capacities. The Code is binding upon all lawyers and failure to live up to any of its provisions is a ground for disciplinary action. Its inculcation must begin with the student and end with the judge, for student, lawyer, and judge alike must have a thorough understanding and appreciation of the true meaning and purpose of the standards of professional conduct.
NATURE OF OFFICE OF ATTORNEY - He occupies a quasi-judicial office because he is in fact an officer of the court. - As an officer of the court, he is subject to the disciplinary authority of the court and to its orders and directives with respect to his relation to the court as well as to his client. Continuous accountability - Court scrutinizes his transactions with his client and protects the client form undue disadvantages.
PRACTICE OF LAW AS A PROFESSION - Primary characteristics which distinguish the legal profession from business are: a. “A duty of public service, of which emolument is a by-product, and in which one may attain the highest eminence without making much money” b. A relation as officer of the court to the administration of justice c. A relation to client in the highest degree fiduciary d. A relation to colleagues at the bar characterized by candor, fairness, and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients. - These characteristics make the law a noble profession, and the privilege to practice it is bestowed only upon individuals who are competent intellectually, academically and morally. - Its basic ideal is to render service and to secure justice for those who seek its aid. - Lawyers must at all times conduct themselves in their professional and private dealings with honesty and integrity in a manner beyond reproach.
PRIVILEGES OF ATTORNEY - A lawyer has the privilege and right to: o Practice law during good behavior before any judicial, quasi-judicial or administrative tribunal o Be 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 quasijudicial officer. His statements, if relevant to the case, are absolutely privileged regardless of their defamatory tenor and of the presence of malice He can speak freely and courageously in the course of judicial proceedings without the risk of incurring a criminal prosecution or an action for damages. o Protest, in a respectful language, any unwarranted treatment of a witness or any unjustified delay in the administration of justice o In passing the bar exams, he has first grade civil service eligibility for any position in the classified service in the government the duties which require knowledge of law; or second grade civil service eligibility for any
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other gov’t position which does not prescribe proficiency in law as a qualification These privileges and rights are designed to encourage a lawyer to be courageous and fearless in the prosecution or defense of his client’s cause.
NECESSITY OF REPRESENTATION BY COUNSEL. - In a democratic and civilized country where the rights of a person are determined in accordance with established rules, the employment of a person acquainted with those rules becomes a necessity both to the litigants and to the court. - Only a lawyer, who by mental and moral fitness previously ascertained possesses the required training in law, can properly and effectively extend such assistance. - There can be no fair hearing unless a litigant is represented or assisted by counsel. - To exact from the attorney his faithful devotion to his client’s cause, the SC subjects him to disciplinary action and administrative liability for his failure to properly attend to the interests of his client.
DUTIES OF OFFICE, GENERALLY - The lawyer has the duty to: o Maintain allegiance to the Republic of the Philippines o Support the Constitution and obey the law o To observe and maintain the respect due the courts and its officers o To counsel such actions only as he believes to be honestly debatable under the law o To employ such means only as consistent with truth and honor o Never to mislead the judge by an artifice or false statement of fact or law o Preserve the secrets of his client o Etc. - BASICALLY THE CODE OF PROFESSIONAL RESPONSIBILITY.
NEED FOR, AND RIGHT TO, COUNSEL - A party litigant needs the assistance of counsel in all proceedings, administrative, civil or criminal. As he isn’t a lawyer, he is ignorant of the substantive and procedural laws which are applied to resolve disputes. - And even if he is a lawyer, his personal and at times emotional, involvement may adversely affect his handling of the case, to his prejudice. Hence, even lawyers, who are parties in a case, need the guiding hand of counsel. - Constitutional rights (right to remain silent; have competent counsel preferably of his choice; any confession made in violation of such provision shall be inadmissible in evidence against him” importance of the presence of counsel in any police investigation, so as to ensure that it conforms to the dictates of the privilege against self-incrimination. Notice! - Right to counsel absolute, immutable, and never subject to waiver. Otherwise, there would be a grave denial of due process.
PUBLIC VERSUS PRIVATE AND PERSONAL DUTIES - Three-fold capacity in which an attorney operates o Faithful assistant of the court o Trusted agent of his client o Self-employed businessman - Public duty – obey the law, aid in the administration of justice - Private duty – his obligation to faithfully represent the interest of his client - Personal obligation – what he owes to himself
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e. If the incompetence, ignorance or inexperience of counsel is so great and the error committed as a result thereof is so serious that the client is prejudiced and denied his day in court, the litigation may be reopened to give the accused another change to present his case. f. Where the failure of the defense to present its evidence is due to the absences of the counsel, the accused should be given another chance to present evidence. g. When the accused has persistently disavows knowledge of the lawyer who allegedly assisted him in the taking of his extrajudicial admission during custodial investigation and the lawyer has failed to show his role therein, the confession is not admissible in evidence h. The accused’s confession given to a prosecutor without the assistance of a counsel is inadmissible as well. i. When the trial court conducts hearing even in the absence of the counsel for the accused, any decision of conviction shall be null and void, warranting a new trial
WHEN APPEARANCE BY COUNSEL NOT OBLIGATORY - In the municipal trial court, a party may conduct his litigation in person or with the aid of an agent or friend appointed by him for the purpose of an attorney. - In the RTC and appellate courts, a party in a civil suit may either conduct his litigation personally or by attorney unless the party is a juridical person. - In administrative proceedings, the right to counsel is not indispensable to due process. If a respondent had chosen to represent himself without the assistance of counsel, he could not later claim that he had been denied due process. - It must be emphasized however, that the fact that a person may conduct his own litigation in person does not detract from the necessity or diminish the importance of assistance of counsel. - Applies only in civil and administrative cases. The rule does not apply in criminal cases involving grave and less grave offenses. CONSEQUENCES OF DENIAL OF RIGHT TO COUNSEL - Denial of right to counsel has the following consequences: a. Admission of guilt, including receipts he signed for items which are inculpatory in nature, are not admissible in evidence b. If the judgment of conviction had become final, it may still be recalled c. If it was found that his lawyer was not really a lawyer, he is still entitled to have his conviction set aside and a new trial undertaken d. Resolution of the Court of Appeals dismissing an appeal for failure to file the appellant’s brief may be recalled and the appeal reinstated, if the “lawyer” failed to file it
WAIVER OF RIGHT TO COUNSEL IN CRIMINAL PROCEEDINGS - Right to counsel of an accused is absolute or immutable. - However, his option to secure the services of counsel de parte is not absolute. The trial court may restrict his option to retain a counsel de parte if the accused insists on an attorney he cannot afford, or the chosen counsel is not a lawyer, or the attorney declines to represent the accused for a valid reason, in which case the court should appoint a counsel de oficio to represent him.
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Section 1© of Rule 115 provides that “Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect the rights without the assistance of counsel.” o Implies that the accused may waive his right to counsel. But if he cannot sufficiently protect his rights without the assistance of such, the court should advise him to secure a counsel de parte or, if he cannot or refuses to do so, the court should appoint a counsel de oficio. The denial of due process cannot be successfully invoked where a valid of waiver of rights has been made. However, the right to counsel during custodial investigation may not be waived except in writing and in the present and assistance of counsel, otherwise his confession during such investigation will not be admissible in evidence.
Rule 1.01 – A lawyer shall not engage in unlawful conduct A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. -
A lawyer shall make himself an exemplar for others to emulate with respect to the duty to uphold the Constitution. Unlawful conduct – act or omission which is against the law Dishonest act – act of lying or cheating Immoral or deceitful conduct – one that involves moral turpitude, anything done contrary to justice, modesty or good morals.
Rule 1.02 – A lawyer shall not counsel illegal activities A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.
B. UPHOLDING THE CONSTITUTION AND OBEYING THE LAW
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CANON 1 - A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES.
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Society has entrusted to the legal profession the administration of law and the dispensing of justice. This requires lawyers to be in the forefront in the observance and maintenance of the rule of law and the preservation of its democratic institutions and liberties.
He shouldn’t subvert the law by counseling or assisting in activities which are in defiance of the law. He should not promote an organization known to be violating the law nor assist in a scheme which he knows is dishonest. He should not allow his services to be engaged by an organization whose members are violating the law, to defend them when they get caught. An example would be the anomalous election of IBP Officers in 1989 where the SC nullified its results after finding that the election was characterized by electioneering activities and extravagance on the part of the candidates.
Rule 1.03 – A lawyer shall not encourage lawsuits A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man’s cause.
For a lawyer is the servant of the law and belongs to a profession to which society has entrusted the administration of law and the dispensing of justice. 6
Rule 1.04 – A lawyer shall not encourage amicable settlement -
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A lawyer owes to society and to the court the duty not to stir up litigation. Unprofessional acts which come within the prohibition: a. Volunteering advice to bring lawsuit, except in rare cases where ties of blood, relationship or trust make it his duty to do so b. Hunting up defects in titles or other causes of action and informing thereof in order to be employed to bing suit or collect judgment c. Employing agents or runners for like purposes d. Paying reward to those who bring or influence the bringing of such cases to his office e. Remunerating policemen, court or prison officials, physicians, hospital attaches or others who may succeed under the guise of giving disinterested friendly adviace f. Searching for unknown heirs and soliciting their employment of him g. Initiating a meeting of the members of club and inducing them to organize and contest legislation under his guidance h. Purchasing notes to collect them by litigation at a profit i. Furnishing credit reports in expectation of possible employment j. Agreeing with a purchaser of future interests to invest therein in consideration of his services. Purpose of the prohibition – prevent ambulance chasing solicitation of almost any kind of legal business by laymen employed by an attorney for the purpose or by the attorney himself.
A lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement. -
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Useful function of a lawyer not only to conduct litigation but to avoid it where possible, by advising settlement, or withholding suit. He should be a mediator for concord and a conciliator for compromise rather than an instigator of controversy and a predator of conflict.
C. MAKING LEGAL SERVICES AVAILABLE CANON 2 - A LAWYER SHALL MAKE HIS LEGAL SERVICES AVAILABLE IN AN EFFICIENT AND CONVENIENT MANNER COMPATIBLE WITH THE INDEPENDENCE, INTEGRITY AND EFFECTIVE-NESS OF THE PROFESSION.
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Necessity of representation by counsel AND right to council in all judicial proceedings and, at times, administrative proceedings → gives rise to CORRELATIVE DUTY on the part of the legal profession TO MAKE LEGAL SERVICES AVAILABLE in a EFFICIENT and CONVENIENT MANNER to those who NEED such services → CANON 2 and its implementing rules makes such duty CLEAR and SPECIFIC → IBP Committee that DRAFTED the code explained: person who needs legal services should be able to find a qualified lawyer o responsibility of the bar to make such services available o wide gap between NEED and SATISFACTION because… 1) poverty → inability to pay ;)
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2) ignorance → NEED of legal services and WHERE to find competent and dependable lawyer **FEAR of delays, legal technicalities, and overreaching and overcharging lawyers THUS, profession should use METHODS, compatible with ethics and dignity TO BRING THE SERVICES of its members to those ACTUALLY CAUGHT UP IN LITIGATION/NEED of LEGAL ADVICE to AVOID litigation
Rule 2.01 - A lawyer shall not reject the cause of the defenseless A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed.
stems from one of OBLIGATIONS INCIDENT to STATUS and PRIVILEGES of being a lawyer REPRESENT the POOR and OPPRESSED (prosecution of claims/defense of rights) o “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” DUTY of a lawyer to ACCEPT cause of defenseless and oppressed EMPOWERS COURTS to REQUIRE HIM to RENDER professional services to any party in any case (if the party is w/o means to employ a lawyer, services of lawyer are necessary to protect rights and secure ends of justice) or TO DESIGNATE him as COUNSEL DE OFICIO for an accused if the latter is UNABLE to EMPLOY a COUNSEL DE PARTE o Counsel de officio and counsel de parte lawyer assigned to render effective legal services; if he fails or neglects to do so, subjected to disciplinary sanction Each lawyer should welcome assignment OPPORTUNITY to… o Render public service
Show practice of law is a PROFESSION Demonstrate efficient discharge of duties not depend upon payment or amount of fees IBP in performance of its PUBLIC RESPONSIBILITY to render FREE LEGAL SERVICES to the POOR and OPPRESSED IBP Committee on LEGAL AID has ESTABLISHED LEGAL AID OFFICES throughout the country o OBJECTIVE: provide and make available ON A NATIONWIDE BASIS legal services in favor of POOR SEGMENT of SOCIETY o OPERATION of these legal aid offices basic policy: “legal aid is not a matter of charity” means for correction of a social imbalance that may often lead to injustice public responsibility of the bar spirit of public service should underlie in all legal aid offices
Rule 2.02 - A lawyer shall not refuse to render legal services In such cases, 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.
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Lawyer MAY REFUSE to ACCEPT cause of defenseless or the oppressed for VALID REASONS when he is NOT in a POSITION to CARRY OUT the WORK EFFECTIVELY or COMPETENTLY NONETHELESS, “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” such as advising him preliminary steps to take until he secures own counsel HOWEVER, he should REFRAIN from giving such legal advice if reason if conflict of interests (bet him and prospective client or prospective and present clients) because EXTENDING SUCH LEGAL ADVICE will CREATE AND ESTABLISH an attorney-client relationship between them may INVOLVE
VIOLATION of rule prohibiting a lawyer from representing conflicting interests
Rule 2.04 – A lawyer shall not charge lower rates to attract business (unless circumstances so warrant) A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant.
Rule 2.03 - A lawyer shall not solicit legal business A lawyer shall not do or permit to be done any act designed primarily to solicit legal business.
Law PROHIBITS lawyers from soliciting cases for PURPOSE of GAIN either… o Personally o Through paid agents or brokers Makes the act malpractice The rule PROHIBITS LEGAL TOUTING Among those that FALL under the prohibition would be… o Lawyer who recommends employment of self, partner, associate, or member of legal staff to a NON-LAWYER who has NOT SOUGHT his advice RE EMPLOYMENT of a LAWYER o Compensate and gives ANYTHING OF VALUE to a person or organization to RECOMMEND or SECURE his EMPLOYMENT OF A CLIENT o Compensate and gives ANYTHING OF VALUE to a person or organization AS REWARD for having made a recommendation RESULTING IN HIS EMPLOYMENT BY A CLIENT Lawyer who agrees with non-lawyer to divide attorney’s fees paid by clients supplied or solicited by the nonlawyer guilty of MALPRACTICE (form of solicitation of cases)
Unethical practice of INDIRECT SOLICITATION of legal business OFFERING LOWER RATES that that prescribed by others for SIMILAR WORKS of SERVICE To DISCOURAGE MALPRACTICE Rule PROHIBITS COMPETITION (in matter of charging professional fees for the purpose of attracting clients IN FAVOR of the lawyer who offers lower rates) Rule does NOT PROHIBIT a lawyer from charging a REDUCED FEE or NONE AT ALL to an indigent or to a person who would have difficulty paying the fee usually charged for such services
D. USE OF TRUE AND FAIR INFORMATION IN MAKING KNOWN LEGAL SERVICES CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE INFORMATION OR STATEMENT OF FACTS. Lawyer can NOT ADVERTISE his TALENT; REASONS…
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General rule: a lawyer can not advertise his talent as a shopkeeper advertises his wares (inflexible rule) o Reasons: Lawyer member of honorable profession
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Primary purpose is to render public service and help secure justice Renumeration is a mere incident o Make lawyer radically DIFFERENT from a shopkeeper, trader, manufacturer, money lender primordial aim = private gain; principal tool ADVERTISING…to SELL PRODUCT or SERVICE To allow a lawyer to advertise his talent or skill is TO COMMERCIALIZE THE PRACTICE OF LAW LOWER the profession in PUBLIC CONFIDENCE and LESSEN INABILITY to render efficiently that high character of service which every member of the bar is called Origin: practices in the Inns of Court of England young men, in the early days of the bar, came to Inns of Court in England to STUDY in order to become barristers practically ALL SONS of WELL-TO-DO parents who DID NOT have to WORRY about EARNING A LIVING and who TRADITIONALLY LOOKED DOWN on all forms of trade and competition regarded law as primarily a FORM OF PUBLIC SERVICE gaining livelihood was but a SECONDARY CONSIDERATION attitude became a recognized custom and tradition of legal profession brought to the US and then to the Philippines As a result of RECOGNITION OF PRACTICE OF LAW PRIMARLY AS A FORM OF PUBLIC SERVICE legal profession acquired a certain TRADITIONAL DIGNITY Proscription against advertising and solicitation AIMS to PRESERVE that DIGNITY NEGATIVE EFFECTS OF ADVERTISING: o Advertising INESCAPABLY INVOLVES self-praise or puffing if permitted, conscientious and ethical will unavoidably be a the mercy of the braggart o Advertising may also lead to ASSERTION OF FRAUDULENT CLAIMS
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Corruption of public officials Attacks on marital stability Encourage lawyers to engage in overreaching, overcharging, underrepresentation, and misrepresentation Doubtlessly increase lawsuit and result in needless litigation and inciting to strife otherwise peaceful citizens
Proper or permissible advertising or solicitation
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NOT ALL TYPES OF ADVERTISING ARE PROHIBITED; NOT MALUM IN SE What makes advertising or solicitation improper? EMPLOYMENT of METHODS incompatible with the TRADITIONAL DIGNITY of a lawyer AND maintenance of correct professional standards or the USE OF ARTIFICIAL MEANS to augment the publicity that normally results from what a lawyer does CLEAR DELINEATION in that regard Canons of profession tell the BEST ADVERTISING POSSIBLE for a lawyer is…A WELL-MERITED REPUTATION for PROFESSIONAL CAPACITY and FIDELITY TO TRUST which must be EARNED as the OUTCOME OF CHARACTER AND CONDUCT o Good and efficient service to CLIENT as well as to the COMMUNITY has a way of PUBLICIZING itself and CATCHING PUBLIC ATTENTION. o PUBLICITY NORMAL BY-PRODUCT of EFFECTIVE SERVICE which is RIGHT and PROPER o A good and reputable lawyer NEEDS NO ARTIFICIAL STIMULUS to generate it and to magnify his success easily sees the DIFFERENCE BETWEEN a… Normal by-product of able service aaaand The unwholesome result of propaganda
(canons of profession enumerate…) EXCEPTIONS to the RULE AGAINST ADVERTISING AND SOLICITATION and DEFINE THE EXTENT to which they are undertaken TWO BROAD CATEGORIES o EXPRESSLY ALLOWED o NECESSARILY IMPLIED FROM RESTRICTIONS Examples (pp. 33 – 36) o 1) Publication in REPUTABLE LAW LISTS in a manner consistent with standards of conduct imposed by the canons, of BRIEF BIOLOGICAL AND INFORMATIVE DATA Such data must not be misleading May include only… Lawyer’s name Names of professional associates Addresses Telephone numbers Cable addresses Branches of law practiced Date and place of birth Date of admission to the bar Schools attended with dates of graduation Degrees and other educational distinction Public or quasi-public offices Posts of honor Legal authorships Legal teaching positions Membership and offices in bar associations and committees thereof Membership in legal and scientific societies and legal fraternities
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Fact of listings in other reputable law lists Names and addresses of references Names of CLIENTS REGULARLY REPRESENTED, with their written consent Law list must be REPUTABLE and published PRIMARILY FOR THAT PURPOSE Cannot be a mere supplemental feature of a paper, magazine, trade journal or periodical which is PUBLISHED PRINCIPALLY for other purposes for that reason, a LAWYER may NOT PROPERLY PUBLISH his BRIEF BIOGRAPHICAL and INFORMATIVE DATA in a daily paper, magazine, or society program NOR permit his name to be published in a law list…the conduct, management or contents of which are calculated or likely to DECEIVE OR INJURY the public or the bar or to LOWER THE DIGNITY OR STANDING OF THE PROFESSION 2) USE of an ORDINARY SIMPLE PROFESSIONAL CARD Statement of name Name of law firm connected with Address Telephone number Special branch of law practiced 3) PUBLICATION of a SIMPLE ANNOUNCEMENT of the OPENING or a LAW FIRM or of CHANGES IN PARTNERSHIP, associates, firm name or office address…being for the convenience of the profession 4) LISTED IN TELEPHONE DIRECTORY…NOT under a designation of a special branch of law 5) A lawyer engaged in a particular branch of law and available to act as an associate of other lawyers in that
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specific branch of legal service may SEND TO LOCAL LAWYER ONLY and PUBLISH in a LOCAL LEGAL JOURNAL…a brief and dignified announcement of his AVAILABILITY to SERVE OTHER LAWYERS in connection therewith announcement or representation should be in A FORM WHICH DOES NOT constitute a statement or representation of SPECIAL EXPERIENCE or EXPERTNESS and NO REFERENCE to his supposed QUALIFICATIONS may NOT BE sent to persons who are NOT LAWYERS cannot be published in any publication other than in a law list or local legal journal nor can it be carried on his letterhead **When is a particular service specialized? Depends upon the EXTENT TO WHICH IT IS AVAILABLE FROM MEMBERS OF THE BAR e.g. a patent, trademark and copyright practice is specialized legal service but NOT A SERVICE of preparing brief or rendering legal opinion (the other being a normal service of a general practitioner fact that lawyer is engaged in a specialized service DOES NOT EXEMPT HIM from complying with the rules and ethics of the profession NOR does it justify the solicitation of employment from one lawyer to another on a reciprocal basis
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6) SEEKING OF APPOINTMENT in a PUBLIC OFFICE (which can be filled up ONLY BY A LAWYER) is NOT solicitation within the meaning of the proscription o 7) ADVERTISEMENT, in a dignified manner, seeking fulltime position as counsel for a CORPORATION distinction between…application for such position w/c would take lawyer out of general practice (permitted) VS application to handle a particular matter while continuing general practice (proscribed) o **NOT IMPROPER for lawyer… 8) to permit his name to be published in a law journal in connection with an account of a legal matter of current interest, in which he is acting counsel 9) in a foreclosure proceeding to advertise for sale, over his name, the property involved incidental part of professional service o 10) ACTIVITY of an ASSOCIATION for the purpose of LEGAL REPRESENTATION as a MODE OF EXPRESSION and MEANINGFUL ACCESS TO COURTS protected by constitution o 11 the PROFFER of FREE LEGAL SERVICES to the INDIGENT, eve when broadcast over the radio or tendered through circulation of printed matter to the general public defense of indigents citizens without compensation carried throughout the country by lawyers representing legal aid societies not only with approval but with commendation of those acquainted with the work the rule of proscribing advertising or solicitation of business is AIMED AT COMMERCIALIZATON OF THE PROFESSION (and has to do with the effort to obtain remunerative business)
NEVER AIMED at a situation in which a group of lawyers announce that they are willing to devote some of their time and energy to the interests of indigent citizens.
Writing legal articles
An attorney “may WITH PROPRIETY write articles for publications in which he gives information upon the law; but HE SHOULD NOT ACCEPT EMPLOYMENT FROM SUCH PUBLICATIONS TO ADVISE INQUIRIES in respect to their individual rights” WITHIN THE PRESCRIPTION OF THIS CANON… o Lawyer may properly write and sell for publication ARTICLES OF A GENERAL NATURE ON LEGAL SUBJECTS o Send upon request his picture for publication with the article in a law journal o Or submit for publication to a bar association journal an unsolicited article on a legal subject What should be guarded against is…the violation of ethical principles concerning: o A) improper advertising by a lawyer o B) giving of legal advice to one with whom no attorneyclient relationship exists o C) aiding of a layman to engage in unauthorized practice of law **e.g. lawyer may not… counsel for a banker’s association write a legal bulletin to be issued to the member allow his name to be carried in a magazine representing that he is an attorney for a named organization and
will furnish free legal advice to its members Giving of advice on legal matters through a newspaper column, radio, television broadcast is IMPROPER o Cannot be undertaken by a layman because the service constitutes a practice of law o Cannot be undertaken by lawyer because work involves INDIRECT ADVERTISING, VIOLATION of CONFIDENTIAL RELATION of ATTORNEY AND CLIENT, and a breach of traditional standards of the profession o **writing a column in a newspaper sooner or late WILL VIOLATE ETHICAL PRINCIPLES readers don’t want a general discussion but something practical they can apply to their own experience which is what publishers will make sure that they get…and a lawyer answering that is apt to follow what he thinks his readers want to hear about and to answer the personal problem he sees behind the questions
Engaging in business or other occupation
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NOT UNCOMMON to combine law practice with some other lawful occupation Fact that one is a lawyer DOES NOT PRECLUDE HIM FROM ENGAGING in business NOT NECESSARILY IMPROPER IMPROPRIETY arises when BUSINESS is of such nature or in such manner as to be INCONSISTENT with lawyer’s duties as a member of the bar… Such INCONSISTENCY arises when business is one that will READILY LEND ITSELF as a MEANS of procuring professional employment for him cloak for indirect solicitation To AVOID SUCH INCONSISTENCIES, always desirable and usually necessary that lawyer KEEPS BUSINESS IN WHICH HE IS
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ENGAGED IN…SEPARATE AND APART FROM HIS PRACTICE OF THE LAW…must, in any event, conduct it with due observance of the standards of conduct required of him as a lawyer MUST MAKE IT CLEAR TO CLIENT IF HE IS ACTING AS A LAWYER or IN ANOTHER CAPACITY Businesses so closely related to the practice of law…may readily become means of indirect solicitation: o Adjustment of claims o Incorporating of companies o Handling of matters before governmental commissions and boards and in government offices o Collection agency o Real estate brokerage o Insurance agency o Mortgage service o Tax service o Consultancy **If any of these and similar business and the lawyer’s law practice are CONDUCTED IN THE SAME OFFICE, the public could NOT be expected to distinguish his dual capacities and know when he is acting as a lawyer or a layman.
or concerning the manner of their conduct, magnitude of interest involved, importance of the lawyer’s position AND OTHERS LIKE SELF-LAUDATION (other examples of improper advertising or solicitation)
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Rule 3.01 - A lawyer shall not use false statements regarding his qualification or service
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A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services.
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he should not resort to indirect advertisements such as o furnishing or inspiring newspaper comments o procuring his photograph to be published in connection with causes in which the lawyer has been or is engaged
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use of card: “as a notary, he can , as a lawyer . Come or write to him…Offers free consultation and is willing to help the poor” causing to be published in newspaper the ff ad: “marriage license….consultation on matter free to poor. Everything confidential. Legal assistance service.” Distribution of a diary or appointment book which has an attorney’s card printed on the cover Or of a circular concerning specific fields of law in which a lawyer will engage in Or containing a digest of laws on a particular subject with lawyer’s name and address Posing for photos of incidents connected with case lawyer is handling photos to be used as illustrations in a newspaper article securing photos with name, address and vocation…to be published by paying cost thereof; Or newspaper’s repeated publication of a laudatory announcement regarding the attorney Procuring a lawyer’s name to be written in an automobile insurance or other policy… WITH DIRECTION to the insured to contact attorney incase of accident (or other real probable liability under the policy) Using in his letterhead the phrase “remedial law” Subscribing to a booklet as the condition for the inclusion of his biography therein Furnishing credit reports to an agency in return for promise of future employment” and offering free legal
services to an association with expectation of ultimately profiting thereby o Accompanying an announcement of the opening or transferring of a law office with statement that members INTEND TO SPECIALIZE IN CERTAIN TYPES OF LEGAL WORK o Announcing retirement of a lawyer from a gov’t office with statement telling resumption of practice of law describing his experience and EXTOLLING HIS ABILITY o Publishing a professional card in a newspaper o Requesting business from other lawyers seeking employment… o a newspaper ad “secret marriage. Php560 for valid marriage…info on guam divorce…free books…immigration…visa…call marivic” above illustrations IMPROPER ADVERTISING OR SOLICITIATION in unmistakeable terms… where to draw the line? There are always honest differences of opinion as to WHAT IS IDEAL or IMPROPER in advertising or solicitation question of good faith and good taste common sense and spirit of fairness, if no judicial guideline, should be RELIED UPON in determining the question
in group of lawyers should hold themselves as lawyers if not partnership actually exists DECEASED PARTNER, keep name as long as communication indicate partner is deceased reason of keeping name: all partners by their joint efforts over a period of years contributed to the goodwill attached to the firm name this GOODWILL is disturbed by a change in firm name every time a partner dies Name of law firm need not identify individual members of the firm Continued use of firm name after death of partner NOT A DECEPTION Filipino lawyers cannot practice law under the name of a foreign law firm (dacanay vs baker and mckenzie: local firm associated with baker…highest quality to multinational businesses…) UNETHCIAL because foreign law firm can NOT practice here use of their firm name in Phils ins unethcial
Rule 3.03 - A partner who accepts public office should withdraw from the firm; exception 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 law concurrently.
Rule 3.02 - A lawyer shall not use false or misleading firm name
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.
partnership among lawyers ins common in the formation of partnership non-lawyer should be admitted or held out as a member
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Purpose of rule: o PREVENT LAW FIRM from using his name to attract legal business o To avoid suspicion of undue influence General rule: appointment or election of attorney in gov’t office DISQUALIFIES him from engaging in PRIVATE PRACTICE of law o Reason: public office is a public trust
Perform duties with highest degree of responsibility, integrity, loyalty and efficiency and EXCLUSIVE FIDELITY Preserve the public trust in a public office Avoid conflict of interests or possibility thereof Assure people of impartiality in the performance of public functions Promote public welfare Public officials ABSOLUTELY PROHIBITED from engaging in PRIVATE PRACTICE OF LAW or GIVING PROFESSIONAL ADVICE TO CLIENTS as members of the bar o Judges and other officials or employees of the courts o Office of the solicitor general and of other government prosecution offices o President, vice-president, and members of the cabinet and their deputies and assistants o Members of constitutional commissions o Civil service officers or employees WHOSE DUTIES AND RESPONSIBILITIES require that their entire time be at the disposal of the government o **when any one of these officials is appointed or elected and has qualified…he CEASES, as a general rule, to engage in the private practice of law and HIS RIGHT TO PRACTICE IS SUSPENDED DURING HIS TENURE OF OFFICE LAWYER MEMBER OF LEGISLATURE NOT ABSOLUTELY PROHIBITED o Only prohibited from appearing as “counsel before any court of justice or before the electoral tribunals, or quasi-judicial and other administrative bodies” (1987 more restrictive than 1973 constitution) o What is prohibited? APPEARANCE in court and other bodies
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APPEARANCE – arguing case and filing a pleading on behalf of a client (filing a formal motion, plea or answer o Senator or congressman CAN NOT FILE PLEADINGS CAN NOT allow his name to appear in such pleadings BY ITSELF or AS PART OF A FRIM NAME under the signature of another qualified lawyer (bec signature of an agent amounts to a signing by “non-qualified” senator or congressman) by such act “APPEARS” before a court or quasi-judicial or administrative body violation of constitutional prohibition what is prohibited directly is prohibited indirectly Name should accordingly be dropped from firm name…of whch he is name partner, whenever firm files pleading on behalf of client. LOCAL CHIEF EXECUTIVES (governors, city and municipal mayors) CAN NOT ENGAGE in the PRACTICE LAW o Under LGC, prohibited from practicing their profession or engaging in any occupation OTHER than the exercise of their functions a LOCAL CHIEF EXECUTIVE MEMBERS OF SANGGUNIAN may engage in the practice of law EXCEPT o Not appear as counsel before any court in any civil case…wherein LGU or any office, agency, or instrumentality of the gov’t is the ADVERSE PARTY o NOT appear as counsel in any CRIMINAL CASE…wherein the officer or employee of the national or local gov’t is accused of an offense committed in relation to his office o NOT COLLECT ANY FEE for their appearance in ADMINISTRATIVE PROCEEDINGS involving the LGU of which he is an official
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NOT use property or personnel of government EXCEPT when sanggu member concerned is defending the interest of the gov’t CIVIL SERVICE OFFICER OR EMPLOYEE whose duty or responsibility does NOT REQUIRE his entire time to be at the disposal of the government may NOT ENGAGE in the PRIVATE PRACTICE of LAW WITHOUT the written permit from the head of the department concerned with the permit, he can engage in the practice of law GOV’T OFFICIAL who, by express mandate of law, are PROHIBITED from practicing law EVEN WITH THE CONSENT OF THE DEPARTMENT CONCERNED…MAY NOT ENGAGE in the practice of law **he may, in an isolate case, act as counsel for a RELATIVE or CLOSE FAMILY FRIEND DISBARRED ATTORNEY until his readmission or a SUSPENDED LAWYER during his suspension PROHIBITED from engaging in the practice of law o Any such person who practices law or assumes to be a lawyer contempt of court punishable by FINE, IMPRISONMENT, or BOTH (discretion of court) Fact that a person SIGNS a COURT PLEADING as an agent of a litigant or HOLDS HIMSELF out as a lawyer in association with a duly licensed attorney will NOT EXEMPT HIM from liability for unauthorized practice he cannot do INDIRECTLY what he cannot do DIRECTLY. Unauthorized practice of person assuming to be attorney causes damage (even if successful in litigation) ESTAFA GOV’T OFFICIAL forbidden to practice law may be held CRIMINALLY LIABLE for doing so Officer or employee of civil service, without written permit of dept. head concerned administratively liable ETHICS of legal profession FORBID ATTORNEY from permitting his professional services or his name to be used in UNAUTHORIZED PRACTICE OF LAW by lay agency (personal or
corporate) lawyer who violates rule or makes possible illegal practice of law by layman is LIABLE FOR CONTEMPT and may be DISCIPLINED, SUSPENDED or DISBARRED for misconduct as an officer of the court LEGAL REMEDIES to suppress the unauthorized practice of law o Petition for injunction o Petition for declaratory relief o Petition for contempt of court o Petition for disqualification o Complaints for disbarment o Aaaand criminal complaints for estafa (as mentioned earlier) o ****Any of these proceedings may be initiated by AGGRIEVED or INTERESTED PARTY or by a BAR ASSOCIATION o with reference to APPEARANCE of an ATTORNEY who, by virtue of his gov’t position, is DISQUALIFD from engaging in the private practice of law, ADVERSE PARTY MAY ASK FOR DISQUALIFICATION
Rule 3.04 - A lawyer shall not seek media publicity A lawyer shall not pay or give anything of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business.
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media publicity as a NORMAL BY-PRODUCT of EFFICIENT LEGAL SERVICE NOT IMPROPER what’s improper? Lawyer resorts to ADROIT PROPAGANDA to secure media publicity for the purpose of attracting legal business PURPOSE: prevent lawyers from GAINING UNFAIR ADVANTAGE over others through the use of GIMMICKRY, PRESS AGENTRY or OTHER ARTIFICIAL MEANS
ALSO PROHIBITS…making indirect publicity gimmick o Furnishing or inspiring newspaper comments o Procuring his photo to be published in connections with cases he is handling o Making a courtroom scene to attract the attention of newspapermen Or arranging for the purpose of an interview with him by media people
CANON 5 - A LAWYER SHALL KEEP ABREAST OF LEGAL DEVELOPMENTS, PARTICIPATE IN CONTINUING LEGAL EDUCATION PROGRAMS, SUPPORT EFFORTS TO ACHIEVE HIGH STANDARDS IN LAW SCHOOLS AS WELL AS IN THE PRACTICAL TRAINING OF LAW STUDENTS AND ASSIST IN DISSEMINATING INFORMATION REGARDING THE LAW AND JURISPRUDENCE. Rule 5.01 Continuing Legal Education
E. PARTICIPATING IN LEGAL DEVELOPMENT
CANON 4 - A LAWYER SHALL PARTICIPATE IN THE DEVELOPMENT OF THE LEGAL SYSTEM BY INITIATING OR SUPPORTING EFFORTS IN LAW REFORM AND IN THE IMPROVEMENT OF THE ADMINISTRATION OF JUSTICE.
Not a STRICT duty but a DUTY that flows from lawyer’s SENSE OF RESPONSIBILITY Improvement can not be done by dreaming in a vacuum lawyer must RECOGNIZE that LAW IS PART OF A VAST SOCIAL NETWORK whether he likes it or not, he has to interact with the rest of society thus NEED for lawyer to TRANSCEND THE NARROW LIMITS OF TECHNICAL LAW Law and social fabric intricately woven…legal profession cannot afford to CONFINE ITSELF TO NARROW LIMITS of TECHNICAL LEGAL QUESTIONS Lawyer must BROADEN OUT and CONTINUE TO GROW…in KNOWLEDGE and COMPETENCE…in order to be able to make law SOCIALLY RESPONSIVE
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Lawyers in the active practice of law and JUDGES…should put this to heart BOUNDEN DUTY OF COUNSEL in ACTIVE PRACTICE to KEEP ABREAST of… o Decisions of SC o Changes in the law IMPERATIVE that JUDGES should be conversant with… o basic legal principles o Changes in the law o Latest decisions and precedents Active practice of law and service in judiciary REQUIRE continuous study and research on law form beginning to end If neglect/fail to do so can not competently and diligently discharge obligations as lawyer and judge; May be susceptible to mistakes Legal education should be a CONTINUING CONCERN After admission to practice, lawyer incurs a 3-FOLD OBLIGATION o 1st - owes it TO HIMSELF… to continue improving his knowledge of the law o 2nd - owes it TO HIS PROFESSION…to take an active interest in the maintenance of high standards of legal obligation o 3rd – owes it TO THE LAY PUBLIC…to make the law a part of its social consciousness
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** in the discharge of such duties, he must see to it that his activities do not develop into solicitation of legal business or popularity-hunting CONTINUING LEGAL EDUCATION is REQUIRED of MEMBERS of the IBP to ENSURE that throughout their career, o they keep abreast with LAW AND JURISPRUDENCE, o maintain the ethics of the profession and o enhance the standards of the practice of law IBP to achieve such purpose… o Members of the IBP not exempt under Rule 7… o Shall complete every 3 years o At least 36 hours of continuing legal education activities o With appropriate penalties if they fail to do so In accordance with Rules on MCLE
ROLE OF PRIVATE PROSECUTOR
The role of the private prosecutor is to represent the offended party in a civil action for the recovery of civil liability arising from a crime, NOT to seek punishment for the crime The offended party and the private prosecutor can intervene in the criminal proceedings in order to demand civil liability except in the following cases: 1. When the crime does not give rise to a civil liability 2. When the offended party has waived his right to civil liability or to institute a separate civil action 3. When the offended party has instituted a separate civil action
F. APPLICABILITY OF CODE TO GOVERNMENT LAWYERS CANON 6 - THESE CANONS SHALL APPLY TO LAWYERS IN GOVERNMENT SERVICE IN THE DISCHARGE OF THEIR OFFICIAL TASKS.
A public prosecutor is quasi-judicial officer who represents the sovereignty whose obligation is to govern impartially As a public prosecutor, the primary goal is not to reach conviction of the accused to but to ensure that justice prevail through any legitimate means Prosecutor should maintain the impartiality of his office, and should strictly adhere to conduct that would protect the same from being a pawn of political wills
INTERVENTION OF PRIVATE LAWYER SUBJECT TO PROSECUTOR’S CONTROL
Code applies to lawyers in government service because they do not shed their obligations upon assuming public office – in fact their moral transgressions are more severely magnified in the public eye because of their double obligation as public servants and lawyers Government lawyers may be held administratively liable for breach of Code
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For courts which have their own prosecutors (unlike municipal courts), when the active conduct of the trial is turned over by the prosecutor to a private prosecutor, any evidence presented during at that time cannot be used as evidence for the criminal proceedings IF the public prosecutor AND his assistant AND a special authorized counsel are all absent However, private prosecutors may be authorized in writing by the Chief of the Prosecution Office to conduct legitimate criminal trials when the public prosecutor is unavailable
during his tenure as a public official, except on behalf of this same public office he once held
Offended party cannot take a stand opposite to that of the public prosecutor and neither can he revive a case dismissed upon motion of the latter
WHEN PUBLIC PROSECUTOR SHOULD TAKE OVER HANDLING OF CASE
Public prosecutor should not allow criminal proceedings to be hijacked by private prosecutors into becoming trials purely for the satisfaction of private malice
Rule 6.02 - A lawyer in the government service shall not use his public position to promote his private interest A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties.
If law allows a government lawyer to practice, he must not use public position for gains in his private practice If the law does not allow him to practice, he must not be a silent partner in a firm, and must not receive attorney’s fees for securing businesses for an associate He must not even give the image that his public and private functions interfere or benefit each other
Rule 6.03 – Former official may not accept certain employment A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service. After leaving government service, a lawyer cannot accept ANY employment connected with any matter he may have intervened in
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CHAPTER II. THE LAWYER AND THE LEGAL PROFESSION
8. In fulfilment of other requirements which the SC may deem fit to impose
A. UPHOLDING INTEGRITY OF PROFESSION
CITIZENSHIP AND RESIDENCE (because aliens can’t maintain allegiance to Philippines and to our administration of justice) GOOD MORAL CHARACTER
CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR.
Apart from doing the bar proud by dispensing of their duties with diligence and integrity, lawyers should also actively support activities of the IBP and should not limit himself to the payment of dues #pushthelimit #hardsell The IBP seeks to foster justice, integrity, learning, competence, public service, cordiality etc.
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Rule 7.01 – A person shall make no false statement in his application for admission to the bar
EDUCATIONAL QUALIFICATIONS
Public policy requires education and degree of proficiency for proper practice of law and for proper protection of life, liberty, and property Applicant must have completed the following in an authorized university or school: 1. 4-year high school course 2. Bachelor’s degree for arts or science (focus on political science, logic, English, Spanish, history, economics) 3. Bachelor’s degree in law (with civil, commercial, remedial, criminal, public int’l, private int’l, political, labor, social legislation, medical, taxation law and legal ethics)
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. 1. 2. 3. 4. 5. 6. 7.
Continued standard even after the bar because, is a ground not just for non-admission to the bar, but also for cancellation of license Requirement maintains high moral standard and dignity of the legal profession Moral character refers to the objective reality of what a person actually is, as opposed to what people perceive him to be Basic honesty Deference to moral norms Loss of good moral character does not necessarily hinge upon committing a crime
Every student applying for admission into the practice of law must be: A citizen of the Philippines A resident of the Philippines At least 21 years of age A person of good moral character Free of charges involving moral turpitude Possess the educational qualifications Pass the bar examinations
DISCLOSURE OF INVOLVEMENT IN ANY CRIMINAL CASE 21
Ensure that applicant is of good moral character
But mere sex without any impediments to marriage, and having a child out of wedlock is not grossly immoral and does not warrant discipline UNLESS lawyer disowns child or refuses to support him or her CONVICTION OF CRIME INVOLVING MORAL TURPITUDE Essentially any crime with fraud or deceit inherently contrary to conduct, honesty, or morality involve moral turpitude Results in suspension or disbarment
Whether or not a crime imputed upon the applicant involves moral turpitude is up to the SC to decide Concealment of a crime, even if it is not one involving moral turpitude, makes the applicant morally unfit to become a lawyer
Rule 7.02 - A lawyer shall not support unqualified applicant to the bar A lawyer shall not support the application for admission to the bar of any person known by him to be unqualified in respect to character, education, or other relevant attribute.
COMMISSION OF FRAUD OR FALSEHOOD Administrative disciplines for frauds committed in private affairs Shows lawyer’s unfitness to be trusted with the legal business Includes false deeds of sale, simulated contracts, falsification of power of attorney, etc.
Must not execute a certificate of good moral character in favour of an applicant whom he knows has not lived up to such standard Volunteer information and cooperate in investigations concerning anomalies among bar candidates
B. LAWYER’S RELATION WITH OTHER LAWYERS
Rule 7.03 – A lawyer shall always conduct himself ethically and morally A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.
CANON 8 - A LAWYER SHALL CONDUCT HIMSELF WITH COURTESY, FAIRNESS AND CANDOR TOWARD HIS PROFESSIONAL COLLEAGUES, AND SHALL AVOID HARASSING TACTICS AGAINST OPPOSING COUNSEL.
Lawyer should be an exemplar for others to emulate No acts or omissions against the law No acts contrary to justice, modesty or good morals No acts of depravity in private or social duties
In general. Membership in the bar imposes upon lawyers certain obligations to one another, which makes the practice of law a profession: 1) Observance of honorable, candid, and courteous dealings with other lawyers; 2) Fidelity to known and recognized customs and practices of the bar.
GROSS IMMORALITY REFLECTIVE OF UNFITNESS TO PRACTICE Personal immorality in private relations with the opposite sex (#heteronormative) puts his moral character in doubt For an act to justify suspension and disbarment, act must be GROSSLY immoral Seduction, concubinage, bigamy = ALL BAD
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Candor, fairness and truthfulness. A lawyer should not ignore recognized customs and practices of the bar. He has a duty to restrain clients from improprieties and to terminate his relation with client who persists in wrongdoing. A lawyer should not avoid performance of an agreement that was made fairly. If status quo of a pending case was agreed upon to be preserved, a lawyer should not disturb or change the status quo without informing court and counsel. Excusable unpreparedness or absence of counsel during trial of a case should not be taken advantage of by a lawyer; nor should a lawyer make use of secrets of the opposing party acquired through inadvertence for his or client’s benefit. If a lawyer has a family relationship with counsel for the opposing party, he should withdraw from case if he inadvertently gets information about the opposing party. A lawyer who thinks a case is weak may not criticize the lawyer who accepts it, much less attribute to him evil motive for taking up the client’s cause. A lawyer may accept employment to compel another lawyer to honor the just claim of a layman. His action toward such end, as writing a letter of demand to the lawyer, is not unethical since it is mere honest effort to serve the interest of the client.
“Do as adversaries do in law: strive mightily but eat and drink as friends.” Whatever may be the ill-feelings between the clients should not influence counsel in their conduct and demeanor toward each other, and that lawyers should scrupulously avoid all personalities and personal history or personal peculiarities and idiosyncrasies of the other. The fact that one lawyer conducts himself improperly does not relieve another from professional obligation in relation with him, which should enable the erring lawyer to realize the impropriety of his actions. Unjustified recriminations and offensive personalities between lawyers detract from the dignity of the legal profession and constitute highly unprofessional conduct subject to disciplinary action. “The highest reward that can come to a lawyer is the esteem of his professional brethren.” Rule 8.02 - A lawyer shall not encroach upon the business of another A lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer; however, it is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel.
Rule 8.01 – A lawyer shal use temperate language A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper.
Efforts, direct or indirect, in any way to encroach upon the professional employment of another lawyer, are unworthy of a lawyer. A lawyer should not steal another lawyer’s client nor induce the client to retain him by promise of better service, good result or reduced fees for his services. Neither should he disparage another, make
His arguments, written or oral, should be gracious to both the court and the opposing counsel, and be of such words used to properly address one gentleman to another.
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comparisons or publicize his talent as a means to further his law practice.
Association as a colleague in a case. A client’s proffer of assistance of additional counsel should not be regarded as evidence of want of confidence but the matter should be left to the determination of the client. A lawyer retained as additional counsel (second lawyer) should first communicate with the original counsel (first lawyer) before making an appearance in a case. Should the first lawyer object, the second lawyer should decline association, but if the first lawyer is relieved, second lawyer may come into the case.
It is, however, the right of a lawyer, without fear or favor, to give proper advice to those seeking relief against unfaithful or neglectful counsel. A lawyer may accept employment to handle a matter previously handled by another lawyer, provided that the other lawyer has been given notice of termination of service. The notice will enable the lawyer to be changed (first lawyer) to assert and protect his rights to compensation that he can claim or possess. Without such notice, the replacing (second) lawyer shall only appear once he has obtained conformity or has, at the very least, given sufficient notice of contemplated substitution to the first lawyer.
When there is conflict of opinions between two lawyers jointly associated in a case, the client should decide. The client’s decision should be accepted unless the nature of the difference makes it impracticable for the lawyer whose judgment has been overruled to cooperate effectively. In this event, it is the lawyer’s duty to ask client to relieve him/her.
A lawyer’s appearance in the case without notice to the first lawyer amounts to an improper encroachment upon the professional employment of the original counsel.
C. PREVENTING UNAUTHORIZED PRACTICE OF LAW
Negotiation with opposing party. A lawyer should not, in the absence of the adverse party’s counsel, interview the adverse party and question him as to the facts of the case even if the adverse party was willing to do so. Neither should a lawyer sanction the attempt of his client to settle a litigated matter with the adverse party without the consent nor knowledge of the latter’s counsel.
CANON 9 - A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY, ASSIST IN THE UNAUTHORIZED PRACTICE OF LAW. In general. Canon 9 requires that a lawyer should know what practice of law is, who are entitled to practice, and what constitutes unauthorized practice.
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Practice of law, generally. The term “practice of law” is incapable of exact definition, and whether a particular activity comes within the meaning of the term depends upon the circumstances of the case. The court, however, has laid down general principles and doctrines to explain the meaning and scope of the term.
cannot be said to be engaged in the practice of profession as a lawyer. Characteristics of term “practice of law.” The term “practice of law” implies customarily or habitually holding oneself out to the public as a lawyer, for compensation as a source of livelihood or in consideration of his services. Appearance as counsel in one occasion is not conclusive as determinative of engagement in the practice of law. An isolated appearance, however, may amount to practice in relation to the rule that prohibits some persons from engaging the exercise of the legal profession, such as that in the Art. VI, Sec. 14 of the 1987 Constitution.
Generally, to engage in the practice of law is to do any acts characteristic of the legal profession. It includes any activity, in or out of court that requires the application of law, legal principle, practice or procedure, and calls for legal knowledge, training and experience. It is not limited to the conduct of cases in court, but includes legal advising and counseling, and preparation of legal instruments and contracts by which legal rights are secured.
Representation before the court. The practice of law as customarily understood is the rendering of service to a person, natural or juridical, in a court of justice on any matter pending therein through its various stages and in accordance with established rules of procedure. It includes: 1) Appearance before the court 2) Preparation and filing of pleadings, motions, memoranda or briefs for an action or proceeding in court 3) Conduct of litigation, such as: a. Determination of procedural steps to be taken b. Examination of witness c. Presentation of evidence or exhibits 4) General management and control of proceedings in court
In the practice of the legal profession, a lawyer engages in three principal types of professional work: 1) Providing legal advise and instruction to clients to inform them of their rights and obligations; 2) Preparing for clients documents requiring knowledge of legal principles not possessed by laymen; 3) Appearing for clients before public tribunals that posses power and authority to determine the rights of life, liberty and property according to law, in order to assist in the proper interpretation and enforcement of law. Engaging in the practice of law presupposes the existence of an attorney-client relationship; where a lawyer undertakes an activity requiring knowledge of law but involves no attorney-client relationship, such as teaching law or writing books/legal articles, he
Representation before other agencies. The appearance before any quasi-judicial, administrative or legislative agency, which includes interpretation and application of
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laws and presentation of evidence to establish certain facts, constitutes practice of law.
Persons entitled to practice law, generally. Only those who are competent, honorable and reliable may practice law, and every lawyer must pursue only the highest standards in the practice of his calling.
The service to prepare and prosecute a just claim before a quasijudicial or administrative agency is as legitimate as the service rendered in court in arguing a cause. The character of the service, and not the place where it is performed, is the decisive factor in the question of whether the service constitutes a practice of law.
Any person who has been duly licensed as a member of the bar in accordance with the statutory requirements, and who is in good and regular standing is entitled to practice law.
Activity outside of court. The practice of law also includes work performed outside of court, such as giving of legal advice on a large variety of subjects, and preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. No valid distinction can be drawn between that part of the work of a lawyer involving appearance in court, and that of a lawyer drafting legal instruments in his office.
Two basic requirements that must be complied with before a person can engage in the practice of law: 1) Must have been admitted to the bar, which involves various phases consisting of: a. Furnishing satisfactory proof of educational, moral, and other qualifications; b. Passing the bar examinations; c. Taking the lawyer’s oath before the Supreme Court; d. Signing the roll of attorneys and receiving from the Supreme Court clerk of court a certificate of the license to practice.
In Cayetano vs. Monsod, particularly J. Padilla’s dissent sums up the criteria determinative of engaging in the practice of law: 1) Habituality – more than an isolated appearance 2) Compensation – for rendering of professional legal services 3) Application of law, legal principle, practice or procedure – calls for legal knowledge, training or experience 4) Attorney-client relationship –existence of which is necessary to claim practice of law
2) After admission to the bar, must remain in good and regular standing– a continuing requirement, which means that a lawyer must: a. Remain a member of the Integrated Bar of the Philippines (IBP); b. Regularly pay all IBP membership dues and other lawful assessments, as well as the annual privilege tax; c. Faithfully observe the rules and ethics of the legal profession; d. Be continually subject to judicial disciplinary control.
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These rules were designed to admit only those who are adequately prepared mentally and morally to discharge the duties of an attorney, and to exclude to perform those who cannot live up to its exacting standards.
Constitution. No court or court-martial can deny a lawyer without valid statutory limitation or grounds for disqualification, the right to appear before it in representation of a client. A quasi-judicial or administrative agency cannot restrict privilege to practice law by imposing discriminatory conditions, nor by requiring the passing of an examination that is not sanctioned by law to be able to appear before such agency. In this sense, the practice of law is a right that cannot be lightly or capriciously restricted or taken away.
Right and privilege to practice. The practice of law is 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 a sound judicial discretion. It is in a nature of a franchise conferred only for merit, and 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, which are neither dispensed with nor lowered after admission to the bar.
Practice without admission. To a certain extent, some persons not duly licensed to practice are allowed limited representation on behalf of others. A layman of good repute for probity and ability is permitted by the Supreme Court to appear for another, but only in the municipal or metropolitan trail court; and he cannot, even in a single occasion, represent another in any other court, nor can he be appointed by any court other than a municipal trial court, to aid a defendant in his defense, in the absence of authority from the Supreme Court.
As an officer of the court, he is continually accountable to the court for the manner in which he exercises the privilege of practicing law, which should be suspended or terminated if he is no longer fit or safe to be entrusted with the responsibilities and obligations of a lawyer.
These are the rules for a layman in representing another in court: 1) A layman should confine his work to non-adversary contentions, and should not undertake purely legal work (such as cross-examination of witnesses or presentation of evidence); 2) A layman should not render representation habitually (see previous paragraph), as habitually is a condition of a valid practice of law; 3) A layman should not charge or collect attorney’s fees, as there cannot exist an attorney-client relationship.
Although the practice of law is a privilege, a lawyer cannot be prevented from practicing law except for valid reasons. As long as a lawyer is in good behavior, he cannot be deprived of the privilege; unless he commits misconduct ascertained and declared by court judgment after due process. The state cannot exclude a lawyer from practicing law for reasons that contravene the due process or equal protection clause of the 27
A layman who engages in practice of law may be held liable for unauthorized practice.
A lawyer’s responsibilities and qualifications are individual, hence his relation to a client is personal and his responsibility is direct. Intervention by any lay agency, personnel or corporate, between lawyer and the client is forbidden. He should avoid all relations which direct the performance of his duties by or in the interest of such intermediary.
Right of party to represent himself. An individual may be permitted to manage, prosecute and defend his own actions, but his representation on behalf of himself is not considered to be a practice of law. “One does not practice law by acting for himself any more than he practices medicine by rendering first aid to himself.”
A lawyer’s employment should not include the rendering of legal services to members of an organization in respect to their individual affairs; however, a charitable society rendering aid to the indigent is not an intermediary within the meaning of the rule.
In criminal cases involving grave and less grave offenses, a layman must always appear with counsel; he cannot conduct his own defense, as his right to counsel may not be waived without violating his right to due process of law.
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. The permissive right conferred on the lawyer is an individual and limited privilege subject to withdrawal if he fails to maintain proper standards of moral and professional conduct. The purpose is to protect the public, the court, the client, and the bar from incompetence and dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the court. The law makes it a misbehavior on the part of a lawyer to aid a layman in the unauthorized practice of law. A person not admitted to the bar may not hold himself out to the public as engaged in the practice of law, either alone or as associated with a practicing attorney under a firm name. (US v. Ney (1907)
A juridical person must always appear in court represented by a duly licensed member of the bar, except in the municipal trial court where a layman may represent it. Practice by corporation. A corporation or juridical entity cannot engage in the practice of law in representation of others, but may hire an attorney to attend to and conduct its own legal business or affairs. Intervention of intermediary. A lawyer’s duty not to assist, directly or indirectly in the unauthorized practice of law prohibits him from allowing an intermediary to intervene in the performance of his professional obligations.
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Rule 9.01 - A lawyer shall not delegate legal work to non-lawyers
Generally, a lawyer shall not divide or stipulate to divide a fee for legal services with persons not licensed to practice law, which is a necessary consequence of the rule against layman from practicing law; however, there are three exceptions: 1) Where 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. 2) Where a lawyer undertakes to complete unfinished or 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 profit-sharing arrangement.
A lawyer shall not 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. A lawyer should not delegate to a layman any work that involves the application of law, such as: 1) The computation and determination of the period within which to appeal and adverse judgment; 2) Examination of witnesses and presentation of evidence. A lawyer may employ secretaries, investigators, detectives, and researchers, as long as they are not involved in the practice of law, such as not writing of pleadings, appearing in court, etc. He may also employ law students to do lawyer’s work, such as examination of case laws, finding and interviewing witnesses, examining court records, delivering papers, and other similar matters.
The first two exceptions to the rule represent compensation for legal service rendered by the deceased lawyer during his lifetime, which is paid to his estate or heirs. Impropriety arises where the effect of the arrangement is to make the estate or heir a member of the partnership along with the surviving partners, or where the estate or heir is to receive a percentage of fees that may be paid from future business of the deceased lawyer’s clients. Such fees no longer represent compensation for past services of the deceased lawyer.
Rule 9.02 - A lawyer shall not divide fees with non-lawyers A lawyer shall not divide or stipulate to divide a fee for legal services with persons not licensed to practice law, except: a) Where 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; or b) Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; or c) 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 profitable sharing arrangement.
The third exception to the rule does not involve, strictly speaking, a division of legal fees with non-lawyer employees. The retirement benefits in the form of pension represent additional deferred wages or compensation for past services of the employees.
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CHAPTER III. THE LAWYER AND THE COURTS A. LAWYER OWES CANDOR AND FAIRNESS TO THE COURT
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CANON 10 - A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT. Lawyer’s duties to court, generally • As an officer of the court, a lawyer’s first duty is to the administration of justice • His conduct ought to and must always be scrupulously observant of the law and ethics of the profession • He is an instrument to advance the ends of justice; His primary responsibility is to uphold the cause of justice • Should there be conflict, he should resolve it against his client and in favor of the court • He must not render service that will disrespect the judicial office • Utmost good faith and punctilio de honor must be observed
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A lawyer is obliged to observed the rules of procedure and not to misuse them to defeat the ends of justice Lawyer’s conduct: Truthfulness, Frankness, Candor and Fairness Should not suppress material and vital facts Volunteer development which renders issue raised moot and academic Disclose to the court any decision (though it be adverse to his position), which was not considered in deciding the case HOWEVER, he can make proper arguments in support of any legal point even if he is not convinced of its inherent soundness; he is under no duty to obligation to suggest arguments against his position His personal belief in the soundness of his cause is irrelevant!
Rule 10.01 - A lawyer shall not do any falsehood A lawyer shall not do any falsehood, nor consent to the doing of any in Court; nor shall he mislead, or allow the Court to be misled by any artifice.
A lawyer should be candid and truthful • If not, administration of justice will suffer as a result • SC says: Courts are entitled to expect only complete honesty from lawyers Candor is the very essence of honorable membership in the legal profession
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The oath he swore embodies the fundamental duties of a lawyer, which he must honor Conduct himself to the best of his knowledge and discretion with all good fidelity to the court and his client
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Use honorable and truthful means in conducting a case Never seek to mislead the court by an artifice or false statement of fact or law, or by concealing the truth A lawyer must not make false allegations in a pleading
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Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent A lawyer shall not knowingly misquote or misrepresent the contents of paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved. SC says:
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B. OBSERVING AND MAINTAINING RESPECT DUE THE COURTS AND JUDICIAL OFFICERS
Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines Duty of courts, judges and lawyers to reproduce such decisions to the letter (or, verbatim) This prevents the loss of proper and correct meaning, which could be misleading
CANON 11 - A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS. Respect due to courts • A lawyer must observe and maintain the respect due to the courts of justice and judicial officers • He must conduct himself with courtesy toward judges and with propriety toward the courts • The respectful attitude maintains the supreme importance of the judicial office and guarantees the stability of their institution
Rule 10.03 - A lawyer shall not misuse the rules of procedure A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice. •
They should not be used as such, for they are instruments in the speedy and efficient administration of justice A lawyer should not use his knowledge of law to harass a party or misuse judicial processes Ex: Arguing a case that has been repeatedly rebuffed; Filing petitions to frustrate final and executory judgment Courts must guard themselves against schemes that prolong attempts to end controversies SC expresses disapproval of those who intentionally misread laws to circumvent around or violate them, for it put lawyers in public distrust
Rules of procedure offer opportunities and means for delay 31
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Duty to observe respect also applies to those who choose to enter the profession
Rule 11.01 - A lawyer shall appear in proper attire A lawyer shall appear in court properly attired.
Obeying court orders • Court orders must be respected especially by lawyers Respect and consideration should be extended to the judicial branch of government Not because of the incumbents, but because of the authority that vests in them • It may happen that counsel possesses greater knowledge of the law than the judge who presides the court Still, discipline and self-restraint are necessary for the orderly administration of justice The decisions of the judge must be obeyed because he is the tribunal appointed to decide • Willful disregard = flagrant misconduct; may subject to punishment for contempt as well as disciplinary sanction
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Barong Tagalog or coat and tie Respect begins with the lawyer’s outward physical appearance in court Sloppy or informal attire adversely reflects on the lawyer and demeans the dignity and solemnity of court proceedings
Rule 11.02 - A lawyer shall be punctual A lawyer shall punctually appear at court hearings. • •
Defending judges from unjust criticism • It is the attorney’s duty to defend a judge from unfounded criticism or groundless personal attack • Outside the court, a judge lacks power to defend himself against unfounded criticism and clamor • If a judge’s decision is challenged in a higher court, he is barred from seeking a reversal of his action and the lawyer is required to refrain from making the judge appear as a party suing against the adverse ruling
He owes the court and his client the duty to punctually appear at court proceedings Inexcusable absence from, or repeated tardiness in, attending a pre-trial or hearing may subject the lawyer to disciplinary action and may prejudice his client
Rule 11.03 - A lawyer shall abstain from offensive language or behavior A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts. •
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A lawyer’s language must be in keeping with the dignity of the legal profession: forceful but dignified, emphatic but respectful His arguments should be that as addressed from one gentleman to another
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Use of abusive language constitutes disrespect to the dignity of the court of justice BUT he may use strong language to drive home a point Fear of provoking displeasure must not deter him from objecting to illegal or erroneous judicial decisions, rulings, acts or conduct He should be courageous, fair and circumspect; he pleads, not dictate Should not assail without basis the personal integrity of a judge, or attribute motives not supported by the record or material to the case The employment of disrespectful language and behavior serves no useful purpose Under no circumstance is the use of threatening words justified “A lawyer may think highly of his intellectual endowment. That is his privilege. And he may suffer frustration at what he feels is other’s lack of it. That is his misfortune... He should give allowance to the fact that judges are but men; and men are encompassed by error, fettered by fallibility.” He who uses such language betrays disrespect to the court, disgraces the bar and invites the exercise by the court of its disciplinary power
If judge starts the insult, the lawyer will retort to such impudence as well
Upholding court’s authority and dignity • A lawyer should seek to preserve faith in the courts and help build and not destroy the high esteem and regard toward them • In upholding the court’s dignity and authority, he avoids mistrust in the administration of justice, strengthening the foundation of the judicial power Rule 11.04 - A lawyer shall not attribute to a judge improper motives A lawyer shall not attribute to a Judge motives not supported by the record or have no materiality to the case. • •
A judge should be courteous to lawyer to merit respect • Duty to observe respect not one-way • A judge should also be courteous to counsel, especially the young and inexperienced
A lawyer must not make hasty accusations against the judge without cogent and valid ground The rule allows criticism as long as it is supported by the record or is material to the case He may expose shortcomings and indiscretions of courts and judges He should dissect with detachment flaws and inconsistencies of doctrinal pronouncements in law journals
Rule 11.05 - A lawyer shall submit grievances to proper authorities A lawyer shall submit grievances against a Judge to the proper authorities only.
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A lawyer may file against administrative complaints (only after proper circumspection) against erring judges, but it must be filed with the Supreme Court SC has administrative supervision over all courts and power to discipline judges of lower courts Filing unfounded and frivolous charges + use of offensive language = harassing the judge Lawyer must exhaust other judicial remedies first when a judge has gravely erred
Rule 12.01 - A lawyer should come to court adequately prepared 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 preferences. He should also be ready with the original documents for comparison with the copies. •
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C.ASSISTING THE COURT IN SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE • CANON 12 - A LAWYER SHALL EXERT EVERY EFFORT AND CONSIDER IT HIS DUTY TO ASSIST IN THE SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE.
The rule must be read in relation to Rule 18.02 which requires that: “A lawyer shall not handle any legal matter without adequate preparation”. This is important because: without adequate preparation, the lawyer may not be able to effectively assist the court in the speedy and efficient administration of justice, nor can he serve his client with his competence and diligence. Being prepared is an obligation which the lawyer owes to the court and to his clients.
Rule 12.02 - A lawyer shall not file multiple actions A lawyer shall not file multiple actions arising from the same cause.
Duty to assist in the administration of justice • As an officer of the court, a lawyer is part of the machinery in the administration of justice. • Thus, Canon 12 enjoins him to exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. • How? Examples: inform the court, within 30 days, of the death of his client in a pending case, so that such person may be substituted by his heirs; inform the court of any change of his address
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A lawyer should not file pointless petitions that would only add to the workload of the courts. For while he owes entire devotion to the interest of is client, he should not forget that he is an officer of the court, bound to assist in the speedy and efficient administration of justice. A lawyer shall not resort to forum shopping Forum shopping- the improper practice of going from one court to another in the hope of securing a favorable relief in one court to which another court has denied or the filing of repetitious suits or
proceedings in different courts concerning substantially the same subject matter. It can also be defined as the act of party against whom an adverse judgment has been rendered in one forum, of seeking another or instituting two or more actions or proceedings grounded on the same cause on the supposition that one or the other would make a favorable disposition. Test to determine forum shopping: whether the elements of litis pendentia are present or whether a final judgment in one case will amount to res judicata in the other. Simply put, determine whether there are identity of parties or interests represented rights asserted and relief sought in different tribunals. Certification against forum shopping- purpose: to enable the the court to determine WON there is forum shopping. Said requirement is based on Sec. 5 of the Rule 7 of the ROC. The rule applies to quasi-judicial bodies such as the NLRC or the Labor Arbiter. The rule requires personal knowledge by the party executing the same and the lone signing plaintiff or petitioner cannot be presumed to have personal knowledge Sanctions for violation of the rule on forum shopping: failure to file the certificate results in the dismissal of the complaint or petition without prejudice. (If the petitioner actually employed
forum shopping, then the case will be dismissed with prejudice). The lawyer and the party may also be punished with direct or indirect contempt of court. It is also the duty of the lawyer to temper the client’s propensity to litigate, i.e. to check whether the litigation is useless or not and to determine whether or not is intended merely to harass or to injure the opposite party or to work oppression or wrong.
Rule 12.03 - A lawyer shall file his pleadings within the period A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so. •
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It is the lawyer’s duty to ensure that pleadings are filed timely. It would constitute negligence if he fails to file the same within the original or extended period of filing. Such negligence constitutes a breach of duty to both the court and the client. The lawyer should also explain to the court why he failed to file the said documents on the prescribed date. It is imperative that the lawyer initiate such explanation even before an adverse decision is rendered or until he is required to show cause why no disciplinary action should be taken against him for such negligence.
Rule 12.04 - A lawyer shall not delay nor impede execution of judgment
Rule 12.06 - A lawyer shall not assist a witness during recess
A lawyer shall not unduly delay a case, impede the execution of a judgement or misuse Court processes.
A lawyer shall not knowingly assist a witness to misrepresent himself or to impersonate another.
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Basis: lawyer’s oath, it is the lawyer’s duty to delay no man for money or malice. The lawyer shall not se procedural rules to delay the execution of judgment. Procedural rules are precisely designed to accomplice the speedy and efficient administration of justice. Litigation is not a game of technicalities. It is also the responsibility of the lawyer to discourage appellate review if he is honestly convince of the futility of an appeal in a civil suit, he should not hesitate to inform his disappointed client that most likely the verdict would not be altered. Why is it wrong to do so? Because he would only plant false hopes in the client’s mind, increase the burden on appellate tribunals, prolong litigation unnecessarily and expose his client to useless expenses of suit.
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Rule 12.07 - A lawyer shall not harass a witness A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him. •
It is the duty of the lawyer to always treat adverse witnesses and suitors with fairness and due consideration.
Rule 12.08 - A lawyer shall avoid testifying in behalf for a client A lawyer shall avoid testifying in behalf of his client, except: a) on formal matters, such as the mailing, authentication or custody of an instrument, and the like, or b) 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.
Rule 12.05 - A lawyer shall not talk to a witness during recess A lawyer shall refrain from talking to his witness during a break or recess in the trial, while the witness is still under examination. •
The lawyer should avoid any action as may be misinterpreted as an attempt to influence the witness what to say in court.
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Purpose: Avoid any suspicion that the lawyer is coaching the witness what to say during the resumption of the examination. 36
Why is it prohibited? The question is one of propriety rather than of competency. The underlying reason is that the lawyer would perform the dual capacity of being a witness and at the same time an advocate. The function of the witness is to tell facts, while the function of an advocate is that of a partisan.
It would be difficult for the lawyer to disassociate his relation ot his client as an attorney and his relation to the party as a witness .
Rule 13.02 - A lawyer shall not publicly discuss pending cases A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party.
D. AVOIDING IMPROPRIETY THAT TENDS TO INFLUENCE THE COURT
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CANON 13 - 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
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Improper acts which give the appearance of influencing the court to decide a case in a particular way lessen the confidence of the public in the impartial administration of justice and should be avoided.
Criticism of pending and concluded litigation • Pending: Comments may impugn partiality of a judge Court must be shielded from embarrassment or influence • Concluded: Ruling becomes public property; judge may be subject to criticism as any other public official Lawyer enjoys wider latitude of comment on or criticism of judge’s decision or actuation
Rule 13.01 - A lawyer shall not extend hospitality to a judge A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with Judges. • •
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The restriction does not prohibit issuance of statements by public officials who are duty bound to do so But statement of facts that are likely to create an adverse public reaction must be avoided Picketing (it being a form of public expression) must not be held to influence a court to decide a case in a particular way It is the responsibility of the lawyers of the picketers to advise them proper decorum in court
Lawyers and judges alike should avoid the common practice of being godfather to each other’s children A lawyer must discharge his duty with a self-respecting independence; he should avoid market attention uncalled for by personal relations of the parties The responsibility is not on the lawyer to refuse employment, but on the judge not to sit in a case unless he is both free from bias and from the appearance thereof
Limitations on right to criticize • All such criticism shall be bona fide, not indecent or improper
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Wide chasm between fair criticism, and abuse and slander Publication that seeks to embarrass the court destroys public confidence; gross violation of duty to respect courts Where by law or SC resolution, disciplinary actions against judges and lawyers must be confidential until final adjudication, they should not be given publicity by the press Respect for the judiciary cannot be had if persons are permitted to scorn court resolutions adopted for good purposes
Right and duty of lawyer to criticize courts • Rule not intended to prevent criticism of judicial acts of a judge • Whether the law is wisely or badly enforced is a subject fit for proper comment • Courts and judges are not sacrosanct; they should expect critical evaluation of their performance Rule 13.03 - A lawyer shall not invite judicial interference A lawyer shall not brook or invite interference by another branch or agency of the government in the normal course of judicial proceedings. •
To invite interference from another government branch or agency would endanger the independence of the judiciary
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CHAPTER IV. THE LAWYER AND THE CLIENT A. CREATION OF ATTORNEY-CLIENT RELATIONSHIP
Mandato (contract of agency): a friend on whom reliance could be placed makes a contract in his name but gives up all that he gained by the contract to the person who requested him.
CANON 14 - A LAWYER SHALL NOT REFUSE HIS SERVICES TO THE NEEDY. Modern day understanding: • Lawyer is more than a mere agent/ servant because he possess special powers of trust and confidence reposed on him by his client • Lawyer: independent as a judge (powers are entirely different from and superior to those of an ordinary agent) • Lawyer: officer of the court • ACR: • strictly personal, highly confidential, fiduciary • Why is it this way? -> Only by characterizing it like this that a person would be encouraged to repose his confidence in an attorney • Based on: hypothesis that abstinence from seeking legal advice in a good cause is an evil which is fatal to the administration of justice • Most of the rules in the legal profession originate from ACR • ACR demands from the lawyer: sense of commitment to the ideals of the legal profession and a strength of character to resist temptations that deviate from existing norms
Lawyer as an advocate, generally Primary task of a lawyer->be an advocate: • Def: represent a party litigant in court • How: as counsel, public prosecutor, defense counsel • Gen Rule: Private practitioner is not obligated ti acr as counsel for any person whu may wish to become his client • Exception: Public prosecutor cannot choose. (This is the essence of Canon 14.) Emphasizes: lawyer’s public responsibility of rendering legal services to the needy. Thus the Gen Rule in this canon becomes: Accepting employment to the poor. Refusal is the exception. Rationale: The poor hesitate to obtain the services of counsel because of lack of money. Helping the needy is also an objective of the IBP. Nature of attorney-client relationship (ACR for brevity). History in Roman law concepts: • Location conduction operarum (contract of lease of services): a person lets his services for compensation and another hires them without reference to the object which the services are to be performed
Pitfalls from both sides: • Engaging in the practice of law is to tread a narrow path • Lawyer’s only safe guide: high moral principle • His best shield; clear conscience and an unblemished personal record 39
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Reward: esteemed reputation
varying degrees within limits.)-> deviation from such: disciplinary measures by the court
Relation is strictly personal • Court or administrative tribunal cannot but recognize its creation on the faith of the client’s word • It should not be established as the result of fear or deception • Underlies prohibition against: advertising or solicitation of employment • Delegation in favour of another attorney without the client’s consent is prohibited • Terminates upon: the death of lawyer or client, when client wants to ( with or without cause) • Note: cannot terminate upon attorney’s sole discretion (client or the court’s consent needed) • Lawyer should not adopt the client’s problems-> he must have a sense of “vicarious detachment”-> better for lawyer not to appear as counsel for relatives or people he is close to-> else, he should look for another lawyer for them who can detach himself
Rules of protective relation • Protection of personal, confidential and fiduciary relation in ACR is for public interest. • How: client will trust atty more-> important in the administration of justice • Injunctive rules to be followed, the lawyer should: 1. Exert his best effort and learning in the protection and interest of his client 2. Promptly account for any fund or property entrusted by or received for his client 3. Not to purchase or acquire any property or interest of his client in litigation 4. Forever to keep inviolate his client’s secrets or confidence and not to abuse them 5. Not to represent a party whose interest is adverse to that of his client even after termination of the relation • Penalty for not adhering to the aforementioned: disciplinary and administrative liability
Relation is fiduciary and confidential • Demands from a atty.: undivided allegiance, conspicuous and high degree of good faith, disinterestedness, candor, fairness, loyalty, fidelity and absolute integrity in all his dealings and transactions; and an utter renunciation of every personal advantage in any way woth the interest of his client • Responsibilities to client should be reconciled with his duties to the court. (Each requires fidelity and loyalty in
Concept of term “retainer” • ACR begins from the times an attorney is retained. • 2 Concepts which it may refer to: 1. Act of a client which he engages in the services of an attorney to render legal advice 2. Or to defend or prosecute his cause in court • Either: 40
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General retainer: purpose is to secure beforehand the services of an attorney for any legal problem that may afterward arise 2. Special retainer: has reference to a particular case or service May also refer to a “retaining fee” preliminary fee paid to insure and secure his future services, to remunerate him from being deprived, by being retained by one party, is neither made nor received in consideration for the services contemplated Purpose: prevent undue hardship on the part of the atty. Resulting from the rigid observance of the rule forbidding him from acting as counsel for the other party after he has been retained by or has given professional advice to the opposite party
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Ex of implied: atty. Appears on behalf of a party without the latter interposing any objection thereto
Employment of law firm • Equivalent to a retainer of the member thereof even if only one of them is consulted; employ one= employ the whole firm. Why? Member acts in the interest of the firm, all info obtained can be communicated to the other members of the firm • One professional advice is sought, relation is established • Death of a partner handling the case= does not extinguish the relationship with the firm • Firm’s negligence is binding on the client Who can employ attorney • Gen Rule: any person who has the legal capacity to contract can employ an atty. • Minor can gain capacity through his guardian ad litem • An agent clothes by his principal with the power to deal with the latter’s property has the authority to engage the services of an attorney as counsel for the principal • Who else: executor or administrator or trustee, wife (except those involving conjugal property), board of directors of a corp (but they can delegate to this power to their corporate atty. Or a single stockholder)
Necessity of retainer • Purpose: to have power to act as counsel • “contract of employment” that may be express or implied • A form or ratification Sufficiency of professional employment • Employment: essential feature of ACR • Written agreement: best proof to show relation but no real form is necessary • Sufficient: establish the professional relation through proving the advice and assistance of the atty was sought and rendered-> may be express or implied
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Rule 14.01 - A lawyer shall not decline to represent unpopular clients
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A lawyer 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. •
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He should not decline. Just look at history, there were any lawyers who were recognized for their distinguished and sacrificial services. This rule makes it ethically easy for a lawyer to take the defense of an accused whom he knows, or the public knows is guilty of the crime. How can a lawyer take a case which he does not believe in? A) Well, it’s not good or bad until the judge determines it to be so. B) It’s the free choice of the lawyer. Easier to apply this in criminal cases than in civil cases 1. Criminal cases: BRD requirement and it’s “improper for a lawyer ti assert in argument his personal belied in his client’s innocence or in the justice of his cause.” 2. Civil cases: (rules of legal ethics enjoin a lawyer from taking a bad case. a) Atty’s signature in every pleading constitutes a certification that there’s good cause to support it and that it’s not interposed for delay and a willful violation of such rule may subject him to disciplinary action.
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Atty’s duty to “counsel or maintain such actions or proceedings only as to appear to him to be just and such defences only as he believes to be honestly debatable under the law. c) He’s not to encourage either the commencement or the continuance of an action of proceeding, or delay any man’s cause, for any corrupt motive or interest d) He “must decline to conduct a civil cause or to make a defense when convinced that it’s intended to merely harass or injure the opposite party or to work oppression or wrong. So if he were to take a bad civil suit, it will either be to exert his best efforts toward a compromise or, if unsuccessful, to advice his client to confess judgment. He will also invite disciplinary action by the court if he will cause delay in the disposition of unmeritorious cases-> clog court dockets
Rule 14.02 - A lawyer shall not decline appointment by the court or by IBP A lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de oficio or as amicus curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid.
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ACR may also be created by being a counsel de oficio for a poor or indigent litigant-> lawyer has the same duties to the indigent client as to the paying client Gen Rule: Court may assign a counsel de oficio for an indigent client. Exception: In criminal cases where having a counsel is not a right of the accused In criminal cases: The indigent defendant MUST ASK for counsel to be assigned with a counsel de oficio. Court may not assign a counsel de oficio to defend an accused and require such counsel to proceed with trial when the accused has previously manifested his desire to secure services of a counsel de parte. Accused’s conviction cannot be set aside on the sole ground that said counsel was not of his own choice. On appeal: same thing court must assign. If the guy/ girl isn’t in prison: court doesn’t have to assign unless it was requested within 10 days from the receipt of the notice to file the appellant’s brief and the right thereto is established by affidavit of poverty.
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Accused in turn may suffer from ineffective assistance
Rule 14.03 - A lawyer may refuse to represent indigent on valid grounds A lawyer may not refuse to accept representation of an indigent client unless: a) he is in no position to carry out the work effectively or competently; b) he labors under a conflict of interest between him and the prospective client or between a present client and the prospective client; Gen Rule: A lawyer is not oblige to act as 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. Can’t refuse because of: race, sex, creed or status of life, or because of his opinion of guilty of the person 3. Can’t (except for serious and sufficient cause), an appointment as counsel de o. ficio or as amicus curiae or a request from the IBP or any of its chapters for rendition of free legal aid 4. Gov. lawyers has to represent any branch of gov unless he is disqualified to act as counsel-> else, he will be held administratively liable 5. Sol gen. must cannot just exercise his discretion in throwing out gov cases. He must present the court with what he considers could legally uphold the best interest of the gov. He should work in towards the best interest of justice in deciding cases where diff gov. agencies are on opposing sides.-> Gov. office adversely affected by the position of the
Frequent appointment of same counsel is discouraged • Burden of an atty’s regular practice • Possibility of the compensation fir counsel de oficio being considered as a source of income which is not envisioned by the rule • Counsel may be overburdened 43
Sol. Gen., if it still believes in the merit of its case, appear on its own behalf through its legal officer or representative.
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Rule 14.04 - A lawyer shall observe the same standard for all clients. •
A lawyer who accepts the cause of a person unable to pay his professional fees shall observe the same standard of conduct governing his relations with paying clients. • •
Purpose of the legal profession: render public service and secure justice for those who seek its aid. Gaining of livelihood: only a secondary consideration
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B. CANDOR AND FAIRNESS IN DEALINGS WITH CLIENTS
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CANON 15 - A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS.
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Canon flows from the nature of attorney-client relationship which is strictly personal, highly confidential and fiduciary.
It is the duty of the lawyer to disclose and explain to a prospective client all circumstance of his relations to the parties and any interest in or connection with the controversy. The disclosure if more for the protection of the lawyer than that of the client. If for instance, a lawyer conceals the fact that the adverse party used to be his client, the new client may have reason to suspect, n case of an unfacorable judgment, tha the circumstance prevented him from the full discharge of his duty. It is the duty of the lawyer to decline professional employment even though how attractive the fee offered may be if he would violate any of the rules fo the legal profession. The lawyer is prohibited from accepting clients who may adversely affect any interest of his former clients. The same prohibition applies in cases where he intervened while in the government service. Why? The lawyer would find it difficult to disassociate his relation to his former client.
Rule 15.02 - A lawyer shall preserve the secrets of a prospective client A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client.
Rule 15.01 - A lawyer shall ascertain possible 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.
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Note that the rule concerns communication of the lawyer and a prospective client. Matters disclosed by a prospective client to a lawyer are protected by the rule on privileged communication even if
the prospective client does not thereafter retain the lawyer or the latter declines the employment. Why? So that the prospective client would have the freedom to discuss whatever he wishes with the lawyer without fear that what he tells the lawyer will not be divulged nor used against him.
Effects of termination of relation.
C. PROHIBITION AGAINST REPRESENTING CONFLICTING INTERESTS
Materiality of confidential information.
Rule 15.03 – A lawyer shall not represent conflicting interests
A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.
Termination of the relation provides no justification for a lawyer to represent an interest in conflict with that of the former client. The client’s confidence, once reposed, cannot be divested by the expiration of the professional employment. A lawyer owes loyalty to his client even after the relation has terminated. It is not good practice to permit him to defend in another case other persons against his former client.
A lawyer who represents a party and at the same time handles the legal problems of the opposing party, whether the cases are related or not, violates the rule against representation of conflicting interests. The test to determine whether there is a conflict of interest is probability, not certainty of conflict. o e.g. conflict between interest of the estate and creditors of the estate Prohibition applies even if the conflict pertains to the lawyer’s private activity or in the performance in a non-professional capacity, and his presentation as a lawyer regarding the same subject matter. o e.g. representation as an accountant of a firm and as the lawyer of another firm
The attorney-client relationship precludes a lawyer from accepting employment from the client’s adversary either in the same case or in a different but relation action. The prohibition is irrespective of whether or not the lawyer has acquired confidential information from his former client. If the prohibition is made to depend upon whether or not the lawyer has acquired confidential information, it will call for an investigation of that question. A client may then be afraid to consult or make a full disclosure of facts to him.
Foundation of, and reason for, the rule. The rule is founded on the principles of public policy and good taste. The lawyer has a duty to represent his client with undivided fidelity and to maintain inviolate the client’s confidence as well as from the injunction forbidding the examination of a lawyer as to any of the privileged communications of his client. The attorney-client relationship is one of trust and confidence. A lawyer’s knowledge of things connected to his client’s case is considered sacred and must be guarded with care.
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The rule is designed to prevent the lawyer from fraud and being put in a position where he may be required to choose between conflicting duties and to protect himself from unfounded suspicion of professional misconduct.
Opposing clients in same or related suits. A lawyer who appears for opposing clients in the same/related actions puts himself in an awkward position where he will have to contend on behalf of one client that which he will have to oppose on behalf of the other client. He cannot give disinterested advice to both clients. He will be called upon to use confidential information against one client in favor of the other. o e.g. husband and wife in a matrimonial action, creditor and debtor in a recovery suit Even though the opposing clients consent to the lawyer’s dual representation, the lawyer should retire from the case when his clients cannot settle the case amicably. He cannot discharge the duty of undivided fidelity of his clients without undermining the confidential relations of the attorney and client.
present controversy is related, directly or indirectly to the subject matter of the previous litigation in which he appeared for the former client. But he can properly act as counsel for a new client, with full disclosure to the latter, against a former client in a matter wholly unrelated to that of the previous employment, there being in that instance no conflict of interests. What a lawyer owes his former client is to maintain inviolate the client’s confidence or to refrain from doing anything which will injuriously affect him in any matter in which he previously represented him. Having appeared for a party opposed to the probate of a will, he may not go to the opposite side and champion its cause against his former client.
Conflicting duties. A lawyer may not undertake to discharge conflicting duties as he may represent antagonistic interests. o lawyer cannot accept employment as an advocate in any matter upon the merits of which he has previously intervened as a public official o he should not, after resignation, accept professional employment in connection with any matter he has investigated or passed upon before
Opposing clients in unrelated actions. A lawyer should keep inviolate the client’s confidence and should avoid the appearance of treachery and double dealing so that the litigants can be encouraged to trust their secrets to their lawyers. The nature or conditions of his respective retainers with his clients will affect the performance of his duty of undivided fidelity to both clients. His defeated client might accuse him of disloyalty or partiality in favor of the successful client.
Attorney’s interest versus client’s interest. An attorney should not put himself in a position where selfinterest tempts him to do less than his best for his client. The possibility of conflict between self-interest and that of his client exists which may affect the performance of his duty of undivided fidelity to his client Rule applicable to law firm. If a lawyer is disqualified, his law firm is also disqualified from appearing as counsel in a case of conflict of interests, because
New client against former client. A lawyer is forbidden from representing a subsequent client against a former client only when the subject matter of the 46
employment of the law firm is equivalent to a retainer of the members thereof.
1.
Did the lawyer change or have the opportunity to change his previous position as counsel for a party in championing the cause of the new client? 2. Did the new client suffer prejudice? Lawyer’s right to be paid for services rendered in favor of his former client may be affected by the representation of conflicting interests only if the 2 matters are related and the former client objected to such representation.
Limitations on general rule. Where no conflict of interest exists. o Once the conflict of interest ceases, the prohibition no longer applies (e.g. administrator in estate of deceased wife, subsequently administrator of deceased husband) Where clients knowingly consent. o Disclosure should include a thorough explanation of the nature and the extent of the conflict and the possible adverse effects of dual representation, such as the possible revelation or use of confidential information. o Common representation with their advice is sometimes advisable because the lawyer is in a better position to work out an acceptable settlement of their difference o A lawyer may not be allowed to represent conflicting interests even if both parties agree, where there is a conflict between the attorney’s interest and that of a client, or a private client against the government. Where no true attorney-client relationship exists. o Exception: lawyer’s secretary, stenographer or clerk; they acquired confidential information because of the nature of their work (even if no attorney-client relationship)
Rule 15.04 – A lawyer may act as mediator A lawyer may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in settling disputes. because of his knowledge of the law and his reputation for fidelity may make it easy for the disputants to settle their differences amicably. But the lawyer shall not act as counsel for any of them.
D. CANDID ADVICE AND LAWFUL PERFORMANCE OF DUTIES Rule 15.05 - A lawyer shall give candid advice on merits of case A lawyer when advising his client, shall give a candid and honest opinion on the merits and probable results of the client’s case, neither overstating nor understating the prospects of the case.
Effects of representation of conflicting interests. Professional misconduct which subjects the lawyer to disciplinary action Lawyer may also be disqualified from representing the new client upon petition of his former client 2 questions: (If yes to both, setting aside of adverse judgment against new client is justified)
When clients asks about the probable cause of his contemplated or pending litigation, the lawyer: Should study the cause, obtain full knowledge about it before giving an opinion
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What lawyers should do: • Maintain such actions or proceedings that appear to him as just and raise defences which he believes to be honestly debatable in law • Represent his client within the bounds of law- “A lawyer is not a gun for hire.” • Don’t prosecute patently frivolous and meritless appeals or institute clearly groundless actions • Thou shall not use a “false claim”-> the worst thing ever-> will foster popular prejudice against lawyers as a class, deprive those who use it of public esteem (only unscrupulous and desperate lawyers use this in order to succeed in winning his client’s cause.) • No client no matter how powerful is entitled to receive nor should any lawyer render a service or advice involving disloyalty to the law.->Else, the lawyer would invite and merit stern and just condemnation. • He must observe and advice his client to observe the statute of the law, though until a statute shall have been construed and interpreted by competent jurisdiction, he is free and entitled to advice as to its validity and as to what he conscientiously believes to be its just meaning and extent. A lawyer would find his highest honor in a deserved reputation for fidelity to public trust and to public duty, as an honest man and as a patriotic and loyal citizen.
Client is usually a layman in law: so lawyer should explain the in a candid and honest manner Counsel should advice their clients against making untenable and inconsistent claims. Lawyers are not mere employees who must unquestionably do the bidding of the client, however unreasonable. Counsel must counsel. If civil suit is devoid of merit: lawyer should inform and dissuade the client from filing the case in the first instance or in the second instance, to compromise rather than traverse the incontrovertible. If meritorious and ripe for adjudication: lawyer should refrain from making bold and confident assurances of success. A lawyer who guarantees the successful outcome of a litigation is under a heavy pressure to employ any means to win the case, a trying situation indeed. He must not state or imply that he’s able to influence any judge or public official
Rule 15.06 - A lawyer shall not undertake influence-peddling A lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body. Agpalo basically says it’s unethical. Rule 15.07 - A lawyer shall not impress upon clients compliance with law A lawyer shall impress upon his client compliance with the laws and principles of fairness.
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Rule 15.08 - A lawyer shall make clear whether he is acting in another capacity A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity. • • •
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A practicing lawyer may lawfully engage in any other lawful occupation or business. He is under no greater obligation to the party than a person not an attorney would be. He should make clear to his client whether he is acting as a lawyer or in another capacity (esp. if the occupation is related to the practice of law.) Reason: Certain ethical considerations governing attorneyclient relationship may be operative in one and not in the other.
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CHAPTER V. LAWYER AS TRUSTEE OF CLIENT’S PROPERTY
-The prohibition is entirely independent of any fraud that might have intervened. No fraud need be shown and no excuse will be heard. Prohibition is made absolute to avoid such inquiry.
CANON 16 - A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS POSSESSION.
Application of rule -4 elements: a) there must be attorney-client relationship; b) the property or interest of client must be in litigation; c) the atty. takes part as counsel in the case; and d.) the atty. by himself or through another purchases such property or interest during the pendency of the litigation. -The presence of all 4 elements makes lawyer’s acquisition of client’s property in litigation violative of the law. -Any scheme which has the effect of circumventing the law comes within the prohibition. EX. Purchase by wife of atty. for the estate of a decedent.
Effects of fiduciary relations, generally -Position of attorney enables him to put client under his power, and opens attorney to the temptation to avail himself undue advantages, bargains and gratuities by taking advantage of client. -The highly fiduciary and strictly confidential relationship between attorney and client is to remove all such temptation and to prevent everything of that kind from being done for the protection of the client. Dealings with client closely scrutinized -The court will protect the client from any undue disadvantage resulting from any situation in which he and his attorney may stand unequal; courts must be vigilant for client’s protection. -Business transactions between attorney and client are disfavored and discouraged—rule is founded on public policy because by virtue of his office, attorney can easily take advantage of client. -However, lawyer is not barred from dealing with his client but the business transaction must be characterized with utmost honesty and good faith. Measure of good faith is a higher standard than that required in business dealings. Burden of proof upon attorney to show fairness of transaction.
Where rule inapplicable -When one of the elements is absent. EX. Where the sale took place before it became involved in the suit; where atty. at time of purchase was not counsel in the case; where the property purchased was not involved in litigation. -Prohibition is not applicable to a contract for attorney’s gees contingent upon outcome of litigation. Why? Because there is a distinction between purchasing property in litigation as a way for lawyer to abuse client’s confidence/litigate on his account, and agreeing in his professional capacity to accept compensation contingent on result of litigation.
Purchase of client’s property in litigation -Expressly prohibited by law. Rests on considerations of public policy and interest, and is intended to curtail greed of lawyer or any undue influence over client.
Effect of prohibited purchase -Atty. may be disciplined for such misconduct. -Transaction is void ab initio, public policy does not permit compromise or ratification of prohibited contract even after the atty.-client relationship has ceased.
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Purchase of choses in action (meaning: A right to personal things of which the owner has not the possession, but merely a right of action for their possession) -Is it improper? Agpalo says apply the ‘spirit’ of the rule. While there is yet no litigation at the time the assignment took place, litigation is its primary reason. Also, by resorting to such, atty. has placed himself in the category of voluntary litigant for a profit, which renders conduct imp-roper. -However, atty. may properly acquire choses in action not in his professional capacity, but as a legitimate investment.
report promptly the money of his client that has come into his possession. Rule 16.03 - A lawyer shall deliver funds to client, subject to his lien A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgements and executions he has secured for his client as provided for in the Rules of Court.
Rule 16.01 - A lawyer shall account for client’s funds A lawyer shall account for all money or property collected or received for or from the client.
-Generally, failure to return client’s money upon demand gives presumption that atty. has misappropriated it for his own use. -This provision assumes that the client agrees with the lawyer as to the amount of atty.’s fees and as to the application of the client’s fund to pay his lawful fees and disbursement, in which case he may deduct what is due him and remit the balance to his client, with full disclosure. Need client’s consent! Otherwise, lawyer has no authority, and should return the money to his client, without prejudice to his filing a case to recover unsatisfied fees.
-The lawyer hold such money or property of his client in trust, and is under obligation to make a prompt accounting thereof. His failure to make an accounting or to return the money if the purpose for which the money is intended has failed, constitutes blatant disregard of Rule 16.01. -Money received from a person who is not his client is also held by atty. in trust, and he is under obligation to account for it. -However, if duly authorized, an atty. may cash a money order belonging to chis client and retain part of it in payment of his fees.
Rule 16.04 - A lawyer shall not borrow from, nor lend money to, client
A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him.
A lawyer shall not borrow money from his client unless the client’s interests are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client.
-Keep funds of each client separate and apart from his own. Should not use client’s money for personal purposes without consent. Should
-Prohibition from borrowing money from client is intended to prevent lawyer from taking advantage of his influence over client.
Rule 16.02 - A lawyer shall not commingle client’s funds
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-Prohibition from lending money to client EXCEPT when in interest of justice, he has to advance necessary legal expense, is intended to assure the lawyer's independent professional judgment, for if the lawyer acquires financial interest in the outcome of the case, the free exercise of his judgment may be adversely affected. Meaning, there’s an additional stake in outcome of the case for the lawyer, which may make him consider his own recovery rather than that of his client. violation of duty of undivided fidelity to client’s cause.
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CHAPTER VI. LAWYER'S DUTY OF ENTIRE DEVOTION TO CLIENT'S CAUSE
CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.
CANON 17 - A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.
In General - DUTY TO SERVE WITH COMPETENCE AND DILIGENCE & DUTY TO SAFEGUARD CLIENT’S INTEREST >>>> To serve with competence and diligence - A lawyer who accepts employment agrees to serve with competence and diligence ; to be prompt and diligent in the performance of his obligations - Every case deserves his full attention, skill and competence, regardless of its importance and w/n he accepts it for a fee - NOTE that the diligence required is ORDINARY DILIGENCE, and a lawyer is not expected to exercise EXTRAORDINARY DILIGENCE - Impliedly, he represents that: 1. He possesses the requisite degree of learning, skill, and ability necessary to practice his profession (QUALIFICATIONS) 2. He will exert his best JUDGMENT in the prosecution or defense of the litigation 3. He will exercise reasonable and ordinary care and DILIGENCE in the use and application of his skill and knowledge 4. He will take such step as will adequately SAFEGUARD his CLIENT’S INTEREST
GENERAL RULE - Lawyer must act either as adviser or advocate for the client - The client is entitled to the benefit of any and every remedy and defense that is authorized by law of the land and he may expect his lawyer to assert every remedy or defense - The court as guardian of the legal profession also expects a lawyer to employ all the energies at his command EXCEPTION When lawyer declines employment, SUBJECT TO THE PROVISIONS OF CANON 14 NOTE: Personal views, fear of judicial disfavour, or public unpopularity ARE NOT GROUNDS FOR EXCEPTION PURPOSE - To protect public interest: to serve the ends of justice - To do honor to the bar - And help maintain the respect of the community to the legal profession
TO SAFEGUARD CLIENT’S INTEREST - When does duty begin (reckoning pt.)? - From the moment he is employed (i.e. retainer) - When does duty end (reckoning pt.)? – to the final disposition of the whole subject matter of litigation
EFFECTS IF NEGLECTED - Will cause delay in the administration of justice - Prejudice the rights of the litigant
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FAILURE of client to pay atty fees DOES NOT warrant the lawyer’s abandoning the case
Rule 18.02 - A lawyer shall not handle a case without adequate preparation A lawyer shall not handle any legal matter without adequate preparation.
Rule 18.01 - To render service only when qualified to do so A lawyer shall not undertake a legal service which he knows or should know that he is not qualified to render. However, he may render such service if, with the consent of his client, he can obtain as collaborating counsel a lawyer who is competent on the matter. -
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Lawyer has a duty to review the case and conduct thorough and intensive study and preparation - Effects if observed: Lawyer has a higher chance to win the case. Even if he does not win, he would gain the respect of his adversary and the courts. He will also accord fealty to one of the ideas expressive of law as a profession – learning. - Effects if NOT observed: distracts the administration of justice by skewing the merits heavily on the adverse party and mislead the court into rendering an unjust judgment; discredits the bar; cast doubts on a lawyer’s intellectual honesty and capacity; disciplinary action or contempt of court. Preparation of Pleadings - Pleading: a document embodying the result of his work and furnishing the basis on which to judge his competence. - In this document, he must thoroughly discuss the issues raised - He should not suppress nor distort material and vital facts - He should not omit relevant and consequential information - He must specify the specific amounts claimed for the proper assessment of docket fees and also for the courts to obtain jurisdiction over said claims Interviewing witnesses in favour of his client - What is a witness? A witness is the human instrumentality through which the law and its ministers,
Applicable in cases where the lawyer’s field of specialization is not relevant to the client’s needs EXCEPTION is when, with CLIENT’S CONSENT, he obtains as collaborating counsel a lawyer who is competent on the subject matter
PRETZY’S OBITER Canon 2 v Canon 18: Canon 2 GENERAL RULE is that the lawyer should not decline from rendering legal services for the defenseless / indigents EXCEPTION is CANON 18 when the lawyer is not qualified and other VALID reasons (e.g. conflicting schedules, when date of trial is same as another case) EXCEPTION to Exception is when, with CLIENT’S CONSENT, he obtains as collaborating counsel a lawyer who is competent on the subject matter, or Canon 2.02, when the lawyer is ordered to render service only to the extent of safeguarding the latter’s interest (i.e. Procedural steps to take)
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the judges and the lawyers, endeavours to ascertain the truth and to dispense justice to the contending parties. It is his duty to interview them in advance to guide him in the management of the litigation But he should warn the client to be truthful in admitting his conference with the lawyer when asked during cross-examination. (I think this is in re. coaching witnesses)
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Interviewing witnesses against his client - A lawyer may interview prospective witnesses for the opposing side in any civil or criminal action without the consent of the opposing counsel or party ; he may do so even though they are under subpoena for the opposing side - BUT he should avoid any suggestion calculated to induce the witness to suppress or deviate from the truth or affect his free conduct when on the witness stand EXCEPTION: an adverse party who will attend the trial as a witness IS NOT CONSIDERED A WITNESS under this canon. Why? A lawyer is forbidden from communicating upon the subject of controversy with the opposing party EXCEPTION TO EXCEPTION: When the adverse party is interviewed with his counsel Rule 18.03 - A lawyer shall not neglect the matter entrusted to him A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection there with shall render him liable. -
The lawyer must take the procedural steps which, in his judgment, will best serve or advance the interests of his client
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Ordinary diligence is required. NOT EXTRAORDINARY DILIGENCE. Effects if not observed: Client may be declared in default; prescription ; lawyer may be subjected to disciplinary action. Diligence required depends upon the circumstances. 1. Pre-Trial stage. The lawyer must ensure that the client attends pre-trial so that they may not be declared in default. 2. In cases where it is impracticable to continue representing the client (e.g. conflicts with trial schedules of various cases), o If conflict may be remedied, MOVE or ask the court FOR POSTPONEMENT o If conflict cannot be remedied, he should a) inform the client of his predicament and b) ask that he be allowed to withdraw so that the client may hire another lawyer 3. In cases where the client refuses to cooperate, he should ask the court to be discharged from his responsibility. Without court approval, he is still considered as counsel. Non-performance or difficulty or impossibility in performing DOES NOT release him from his obligation. 4. Adoption of mail system for timely reception of judicial notices. Service of notice by registered mail is complete upon actual receipt thereof by the addressee. If he fails to claim mail within 5 days from date of first notice of the postmaster, service shall take effect at the expiration of such time. 5. If lawyer changed his address, it is his duty to inform the court, give notice, and ask that his new address be recorded in the court’s records. Otherwise, non-reception of judicial notices because it was sent to his old address DOES NOT WARRANT a reopening of the litigation and he may be declared in default.
6. If client dies, the lawyer should inform the court and his client’s legal representatives so that they may substitute his client. Effect if not done: binds his client as well as the latter’s heirs of adverse judgment rendered by the court 7. If clerk of court is negligent. The clerk of court calendars the cases for pre-trial and schedules appeals. In case of clerk’s negligence, it is the lawyer’s duty to inform the court of the clerk’s negligence. He may procure court order or invoke contempt power of the court to compel the clerk to act, so that the administration of justice will not suffer delay. 8. Duty to keep client fully informed. The client is entitled to full disclosure of the mode or manner by which his interest is defended or why certain steps are taken or omitted. The lawyer should inform his client regarding developments in the case, such as adverse court decision so that the client may decide to appeal or not within the reglementary appeal period. The lawyer should not provide erroneous information regarding the status of the case. 9. Standard of duty required of defense counsel in GENERAL. He must not put a witness on the stand whom he knows will give a false testimony and commit perjury. He should not distort facts. He should not cause the transfer of the case to another court sala where he believes a more favourable judgment may be rendered by the judge. He must ensure that judgment should be rendered based on merits, and not based on appeals to misery etc. (fallacies) 10. Standard of duty required of defense counsel IN CIVIL SUITS. The lawyer may decline to handle civil suit if he is convinced that the suit is intended only to injure the other party. 11. Standard of duty required of defense counsel IN CRIMINAL SUITS. The lawyer, whether he is counsel de officio or ex parte, must render effective legal assistance REGARDLESS of his personal opinion as to the guilt of his client. The lawyer
must present all fair and honourable means, including all the mitigating circumstances permitted by law to save his client from an unrighteous conviction. 12. Standard of duty required of counsel de officio. He must exert best efforts for an indigent client. Must not just be a perfunctory function. Lawyer must provide an efficient and truly decisive legal assistance, no matter how guilty or evil he appears to be. He must not ask to be released from his obligation for any TRIVIAL REASON (e.g. Ledesma v Climaco, where lawyer was not allowed to be excused due to his appointment as an election registrar) Standard of duty when counsel intends to plead guilty. Must be made voluntarily by the accused, with full awareness of its consequences. Duty of defense counsel to: a) acquaint himself with the records of the case, b) confer with the accused re. his account of the events, c) advise him of his constitutional rights, d) thoroughly explain to him the consequences of a plea of guilty, and e) see to it that the prescribed procedure is strictly followed and disclosed in the court records. Rule 18.04 – A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to client’s request for information. CANON 19 - A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF THE LAW. -While lawyer’s zeal in the task of advocacy is commendable and his persistence in the discharge of his responsibility is understandable, it should not amount to obstinacy nor should it be carried beyond the limits of sobriety and decorum.
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Prosecuting or defending matrimonial cases -What is unethical is the lawyer’s participation in any collusion between the parties. He must also avoid any act which may invite suspicion of collusion. -What if lawyer has confidential information from client not in collusion, the disclosure of which may defeat the action for dissolution of marriage, which the client wants? State interest vs. client’s interest. Lawyer owes court honesty and candor; to client, the duty to lawfully secure for him what he desires. Solution: lawyer should favor solution which will best serve all his loyalties, by declining the professional employment or terminating the professional relationship.
Rule 19.01 - A lawyer shall employ only fair and honest means A lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding. -Honorable means, those consistent with truth and honor. He should abstain from all offensive personality and advance no fact prejudicial to the honor/reputation of a party unless required by the justice of the cause with which he is charged. -In espousing client’s cause, a lawyer should not state his personal belief to the soundness of his case. Why? Because his personal belief has no bearing on the case. Also, if expression of belief were allowed, it would give improper advantage to older/better-known lawyers whose opinion carries more weight.
Rule 19.02 - A lawyer shall rectify a client’s fraud A lawyer who has received information that his client has, in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he shall terminate the relationship with such client in accordance with the Rules of Court.
Duty to restrain client from impropriety -A lawyer should restrain client from doing those things which himself ought not to do, particularly with reference to conduct towards the court, judicial officer, witness, etc. If client persists, lawyer should terminate their relation.
-In the event the client fails or refuses to rectify the fraud, the lawyer is required to terminate the relationship. He may not volunteer the information concerning the client’s commission of fraud to anybody, as it will violate his obligation to keep client’s secrets.
Technical defense -The negative defense of lack of knowledge or information as permitted by the rules must be used with sincerity or good faith; it must neither be used to confuse the adverse party as to what allegations are really put in issue, nor employed to delay the litigation.
Rule 19.03 - A lawyer shall not allow his client to dictate on the law A lawyer shall not allow his client to dictate the procedure on handling the case. -A lawyer is not a gun for hire or an errand-boy at the beck and call of his client.
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-While it is the lawyer’s duty to comply with the client’s lawful request, he should resist and never follow any unlawful instruction of his client. Client should yield to lawyer in matters of law, not the other way around. -Lawyer cannot escape responsibility for urging questionable defenses/suits or filing a pleading with contemptuous allegations, by saying that he was only following his client’s instructions. -Lawyer’s duty to court is not secondary to that of his client. No client has a right to demand counsel to be illiberal, or that he do anything therein repugnant to his own sense of honor and propriety. Lawyer must judge for himself!
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CHAPTER VII. AUTHORITY OF THE LAWYER A.IN GENERAL
Power to bind client, generally. General authority if the lawyer: to do on behalf of his client such acts as are necessary or incidental to the prosecution or management of the suit entrusted to him or the accomplishment of its purpose for which he was retained Scope of authority: matters of ordinary procedure only Employment by itself: confers upon the attorney no implied or apparent authority to bind the client on SUBSTANTIAL MATTERS (i.e. cause of action, claim or demand sued upon the subject matter of litigation) Substantial matters: cannot be novated, compromised, settled, surrendered or destroyed without the client’s consent or authority-> TEST on WON lawyer can deal with substantial matters rests on a WRITTEN AGREEMENT or a SPECIAL AUTHORITY
Extent of authority of a lawyer when acting on behalf of his client outside of court: measured by the same test as that which is applied to an ordinary agent. Lawyer representing a client in court: MORE than an agent and has powers different from and superior to those of an ordinary agent. WHY? He’s an officer of the court with right and privileges and duties PECULIAR ONLY to a lawyer.
Collection of claims. Atty. Retained by a creditor to enforce a claim: has the authority to take all necessary steps to collect it. (Ex. Sending a letter of demand requiring payment of the obligation within a specified period or filing the corresponding action in court in the event of the debtor’s refusal to pay.) Also authorized to: release debtor from his obligation upon full payment thereof in cash and to issue a receipt therefor. Client’s remedy when he has not received the amount due him: not against the obligor (already discharged from his obligation) but against the attorney who holds the money in TRUST for his benefit. Lawyer has no authority to (unless given special authority): 1. Discharge his client’s claim for less than the amount thereof or for the full amount in kind 2. Encash or endorse a check or draft payable to his client or deliver the proceeds of a claim to a person other than to his client.
Attorney as agent of client. Atty-client relationship: greatly similar to an agency thus, general rules on ordinary agency apply to this relation As an agency these hold true: 1. Client is bound by the act or omission of its attorney within the scope of his authority. 2. A lawyer signing an appeal bond or a notice on behalf of a client is acting as agent of client (and can lawfully act on his behalf in any matter in which the client has a right or interest to be protected.
Acceptance of service of summons. Gen. Rule: An attorney has no power to receive or accept on behalf of his client the service of summons in his bare professional capacity.-> He is not, in the absence of other 59
circumstances indicated the contrary, an AGENT within the meaning of the rule authorizing service of summons upon an agent of a corporation. Ex. A foreign corporation without any agent or officer in this country other than its counsel who is also its sole representative for setting claims sued for a sum of money and damages, the service of summons made upon its counsel binds the corporation because.
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Delegation of authority. Since the atty-client relationship: one of utmost trust, lawyers CAN’T just: 1. Simply delegate the confidence and authority without the client’s express or implied consent 2. Assign a contract of professional services still to be rendered in favour of another lawyer without the client’s conformity But, client can always ratify an unauthorized delegation or the circumstances of the professional employment may furnish sufficient basis to assign the retainer, including the authority implied therefrom.
Here, it doesn’t mean that the one who got delegated now has an atty-client relation with the client - Neither of them owes the other any obligation - Thus, client is not liable for the fees of the associate counsel hired by the lawyer in the absence of an agreement to that effect. 2. Another lawyer can be made to appear on behalf of the original lawyer in court (presumed to be empowered to act in that capacity) Delegation is prohibited to a: layman-> any work which involves the study of law or its application, such as the computation and determination of the period within which to appeal an adverse judgement. - WHY? These involve the practice of law which may be undertaken ONLY BY A LAWYER.
B. AUTHORITY TO APPEAR Generally A lawyer may not represent another in court unless retained or authorized by the court His authority to appear for a client commences only from the time he is retained by the client or his agent. The authority continues until the termination of the litigation unless revoked or withdrawn by the client. No written authority from the client is necessary for a lawyer to represent him in court.
Delegation of legal work. It’s the CONFIDENCE reposed on the lawyer that can’t be delegated (without the client’s consent) and NOT the WORK. Implied powers of delegation: 1. Delegation to associate or assistant attorney, under his supervision and responsibility, part or the whole of the legal work required to be performed in the prosecution or defense of the client’s cause
Appearance “Appearance” – coming into court as a party either as a plaintiff or as a defendant and asking relief
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appearance is presumed to be with the previous knowledge and consent of the litigant whose representation he assumes until the contrary is shown. o Mere denial that one didn’t authorize an attorney to appear for him, in the absence of a compelling reason, is insufficient to overcome the presumption (esp. if the denial comes after an adverse judgment) o The appearance of a second attorney does not authorize the presumption that the first attorney has been withdrawn (litigant just employed additional counsel)
Thereafter, a lawyer for either party may enter his appearance in any form o By filing a pleading/motion o By attending a hearing in court Appearance as counsel is a voluntary submission to the court’s jurisdiction by a lawyer to represent and plead the cause of another The formal method of entering an appearance in a case pending in court is to deliver to the clerk of court a written direction asking him to enter his name as counsel for a party and requesting that copies of notices be sent to him at his address with a copy of his appearance furnished the adverse party o Without formal appearance, counsel is not generally entitled to notice
Presumption disputable. Presumption that an attorney is duly authorized to manage a litigation is a disputable one and may be overcome by a clear evidence to the contrary. o e.g. litigant is incompetent, foreigner with no knowledge that a lawyer is representing him Authority of an attorney to appear in a case may be challenged by the party adversely affected by the attorney’s representation. (could be the client himself)
General and special appearance. General appearance – any action on the part of defendant or his counsel, except to object solely to the jurisdiction of the court over the person of the defendant o “special” – jurisdiction over the person in not expressly impugned or if impugned other relief is sought (still general) o Voluntary submission to the jurisdiction of the court over the person of the defendant and takes place of or cures any defect in the service of summons upon him Special appearance – seeks to contest solely the jurisdiction of the court over the person of the defendant and which seeks no relief other than the dismissal of the action exclusively on that ground
Disclosure of authority. Presiding judge may require him who assumes the right to appear in the case to produce or prove his authority and to disclose, whenever pertinent to any issue, the name of the person who employed him, based on motion of either party and on reasonable ground shown Failure to present such authority from the client when his authority to appear is challenged gives rise to the inference that he has no such authority.
Presumption of authority. A lawyer 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. His 61
Effects of unauthorized appearance. A party who has not authorized an attorney to represent him is not bound by the attorney’s appearance in the case nor by the judgment rendered therein. If the unauthorized appearance is willful, the attorney may be cited for contempt as an officer of the court who has misbehaved in his official transactions and can be discipline for professional misconduct. For his professional protection, an attorney should enter into a written retainer or secure from his client a written authority to represent him in court.
c) He fails to promptly repudiate the assumed authority
C. CONDUCT OF LITIGATION Summary: The counsel has an implied authority only with regard to the direction and management of all the procedural matters of the suit. Matters relating to the substantive portion of the litigation and the rights of the client shall be left to his own discretion unless counsel is given authority of there is ratification. Client
Ratification of unauthorized appearance. Unauthorized appearance of an attorney in a case may be ratified by the patty concerned either expressly or impliedly. Ratification retroacts to the date of the attorney’s first appearance and validates the action taken by him and removes the taint of impropriety in the attorney’s conduct as an officer of the court. o Express ratification – assertion by the client that he has authorized the attorney or that he is confirming his authority to represent him in the case o Implied ratification – where a party, with knowledge of the fact that an attorney has been representing him in a case, accepts the benefit of the representation or fails to promptly repudiate the same. Absence of any renders implied ratification inoperative: a) The party represented by the attorney is of age/competent, or if suffers from disability, has a duly appointed guardian or legal representative b) The party/guardian is aware of the attorney’s representation
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Cause of Action Claim/Demand sued upon Subject Matter of the litigation Right to dismiss, settle, or waive his cause o Includes renunciation of part or all of the proceeds of a favourable judgment - Even without notice to or even in disregard of his counsel - Limitations: Bad faith/Fraud of client Contrary to law, PP, PO, Morals, GC Compromise of his rights o Why? The essence of a compromise is that the client must give up some of his rights in consideration of the same act on the part of the other party. o The authority to compromise cannot be lightly presumed
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A compromise executed by counsel without special authority or consent on the part of the client is unenforceable (may be ratified by client) Confession of Judgment o Examples: deliberate refusal to make a defense; express withdrawal of an opposition to a claim Dismissal of action o Dismissal with prejudice – lawyer has no authority without client’s consent A dismissal with prejudice – adjudication of the action upon its merits o Dismissal without prejudice – attorney has implied power Ex. Client’s repeated failure to appear at the hearing
Lawyer
All matters of ordinary judicial procedure/procedural questions o A lawyer who has been retained to prosecute or defend an action has the implied authority to determine what procedural steps to take which will serve the best interests of his client Examples: - What action/pleading to file, where to file - Theory of the case - Defenses to raise - Proof/witness But a lawyer may stipulate only as to facts but not as to the manner the facts
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are to be offered. The order of trial depends on the courts, not a matter between the parties Prosecution and management of the suit Exclusive management of the procedural aspect of the litigation, including the enforcement of the rights and remedies of his client Making admissions of facts o General Rule: Admissions made by counsel are imputed to and are conclusive against the client o Exceptions: - Where the lawyer oversteps his authority - Upon a showing of palpable mistake o Limitations: - limited to the action in which he is retained - limited to matters of judicial procedure ex. No admission re: client’s cause, i.e. damages, plea of guilty Entering into Stipulations o General Rule: A stipulation is binding upon the client. The fact that the client never authorized his attorney to make a particular statement does not detract from its binding effect. - Stipulations/admissions must be in writing and signed by the accused and his counsel o Exceptions: - When the client is allowed to withdraw therefrom with the consent of the other party
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When the court, upon showing of palpable mistake, permits him to withdraw from the stipulation When what the lawyer agreed is that a witness, if presented in court, would testify as stated by the adverse attorney.
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Notice to one as notice to other counsel; exceptions -
D. MATTERS IMPUTED TO CLIENT Knowledge acquired by attorney -
Doctrine of imputed knowledge: assumption that an attorney, who has notice of matters affecting his client, has communicated the same to his principal in the course of professional dealings o Applies regardless of whether or not the lawyer actually communicated to the client o The attorney and his client being one juridical person
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Notice to counsel as notice to client -
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in both cases, the attorney-client relationship is terminated by operation of law the right to be notified through a counsel may be waived either by the attorney or by the client.
the law requires that a service of any written notice shall be made upon his attorney, unless service upon the party himself is required by the court purpose of the rule is maintain a uniform procedure calculated to place in competent hands the orderly prosecution of the case and the same has beneficial effect upon the prompt dispensation of justice. Service of notice is to be made to the counsel of record Exceptions to notices binding to the client: o the lawyer is already dead o qualified for appointment as Asst. provincial fiscal
Gen Rule: If a party appears by two or more attorneys of record, notice to one attorney is notice to the others as well as to the client. o Regardless if they belong to the same firm or not o If all lawyers were given notices the earliest date of receipt thereof is the starting point from which the reglementary period to comply with what is required is to be counted. EXCEPTIONS: o 1. Where either by agreement or proper manifestation of one of the attorneys is expressly designated as one to whom service is to be made o 2. Where it is admittedly clear that one is a leading counsel
Exceptions to the rule that notice to counsel is notice to client -
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Corollary principle: notice to the client is not a notice in law This rule may be relaxed if the strict application may foster dangerous collusion to the detriment of justice o Would be easy for the lawyer to sell his client’s right down the river by alleging that he forgot every process of the court affecting his client because he was busy, a notice to such irresponsible lawyer is not binding upon his client..
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Notice may be served upon the party if there is uncertainty as to who the counsel of the party is.
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Mode of service of notice
GEN RULE: Service of pleadings motions, notices, orders, judgments and other papers shall be made either personally or by mail.
delivering personally a copy to the party’s counsel leaving it in his office
PERSONAL SERVICE
by leaving a copy in his residence (form 8:00 am – 6:00 pm) with a person of sufficient age and discretion residing therein
asking its receipt be acknowledged (by his clerk) office is not known if no person is found in his office he has no office
ordered by the court ** service to the party not represented by counsel
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service to a party (not to his counsel) is not a valid service
Service of registered mail o Deposit to post office o Sealed envelope o Plainly addressed to the party or his counsel at his office (if known), otherwise in his residence (if known) o With postage fully prepaid o With instructions to postmaster to return the mail to the sender after 10 days if undelivered o *if no registry service available in locality, service may be done by ordinary mail. When is personal service complete? o Upon actual delivery o Ordinary mail expiration of 10 days after maiing o Registered mail actual receipt by the addressee, or after 5 days from date he received notice of the postmaster (whichever is earlier) Evidence of notice certification of the postmaster Personal service preferred; explanation required Sec. 11, Rule 13 of the ROC: “Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper not filed.” Mistake or negligence of counsel binding upon client -
GEN RULE: the client is bound by his counsel’s conduct, negligence and mistake in handling the case, or in the
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management of the litigation and in procedural technique, and he cannot be heard to complain that the result might have been different had his lawyer proceeded differently. negligence of counsel binds the client o May result to an unfavourable judgment against the client o Presupposes the existence of attorney-client relationship o (see page 271-273 for the list of mistakes and negligence binding upon the client) Relief from the effects of a judgment will not be granted to a party who lost a remedy due to the fault of his counsel, unless counsel can show excusable negligence or accident on his part as well as a good cause or defense on the client’s part. The mistake of counsel in the conduct of the proceedings as a result of his ignorance, inexperience or incompetence does not constitute a ground for new trial A client who suffers prejudice by reason of his counsel’s inexcusable negligence o May file an action for damages against him o Disbarment proceeding Both actions can proceed independently
Exceptions to the rule - error committed by the counsel is purely technical in nature which does not affect substantially the client’s cause. - attorney’s departure from procedure may be forgiven where it does not appear to have impaired substantial rights.
- it is not sufficient that a counsel has been grossly negligent to justify a new trial; it must be shown that the client has good and meritorious claim or defense and that the client is not himself guilty of the same Includes: - cases where reckless or gross negligence of counsel deprives the client of due process of law - when application of the rule results to the outright deprivation of one’s property through a technicality
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Written agreement - This is not necessary to establish client’s obligation to pay atty’s fees. As long as he is honestly and in good faith trying to serve and represent his client’s interest, latter is bound to pay him - Acts of acceptance is equivalent to a prior engagement - Client’s oibligation to pay attorney’s fees arises from the INANIMATE CONTRACT OF facis ut des (I do and you give) which is based on the principle that no one shall unjustly enrish himself at the expense of another
CHAPTER VIII. COMPENSATION OF ATTORNEY A. RIGHT TO ATTY’S FEES CANON 20 - A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE FEES. Generally. - Compensation of a lawyer should be mere incident of the practice of law - The primary purpose is to RENDER PUBLIC SERVICE - Because he is an officer of the court charged with the duty of assisting the court render impartial justice, what he may collect as his fees is ALWAYS subject to judicial control - He must remember that practice of law is a PROFESSION and not a business to take large profits - Must avoid controversies concerning compensation - They may file judicial actions for the recovery of their fees but it must be righteous and well founded
Quantum meruit - If lawyer is employed without an agreed price for his service, courts will fix amount based on quantum meruit (the amount which his services merit) - There MUST be an acceptance of the benefits by one sought to be charged for the services rendered as reasonably to notify him that the lawyer performing the task is expecting to be paid compensation - This is a device to prevent undue enrichment based on the equitable postulate that it is unjust for a person to retain benefit without paying for it - Atty’s fees are also fixed on the basis of quantum meruit basis when the amount stipulated in the written agreement is found to be unconscionable or where the client dismissed his counsel before the termination of the case or the latter withdrew for valid reasons
Right to protection for counsel fees - A lawyer is entitled to judicial protection against injustice, imposition or fraud on the part of his client - Court’s duty is not alone to see that lawyer acts in a proper and lawful manner byt also to see that a lawyer is paid his just fees
Who is liable for atty’s fees - General Rule: Only the client who engaged the services of counsel either personally or through an authorized agent is liable for the attorney’s fees
Requisites for right to accrue 1. Existence of atty-client relationship - There’s professional contract, express or implied, between a lawyer and his client 2. Rendition by the lawyer of services to the client
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Exceptions: A person who accepts the benefits of the legal representation impliedly agrees to pay the lawyer’s service for he may not unjustly enrich himself at the expense of the lawyer No obligation to compensate in the absence of an express or implied contract Examples: o Party who was not privy to the employment contract or who did not authorize the lawyer’s retainer is not liable for counsel fees o Party to an action who disauthorized the lawyer to appeal an adverse judgment may not be held liable for atty’s fees for the successful prosecution of the appeal taken on behalf of other interested parties o Legatee named in a will who pleaded for its allowance may not be required to contribut to the fees of the lawyer who succeeded in having the will disapproved o A client cant be held liable for the fees of a lawyer whose services were engaged by another on his behalf without his authority, in the absence of ratification or estoppel
Liability of assignee - Since assignee usually steps into the shoes of the assignor and acquires all of the latter’s rights and obligations, he may be held liable for counsel fees. - It also gives him the right to intervene in the matter of fixing the amount of fees which may be a proper charge against the judgment rendered in the action Liability in labor cases - Atty’s fees in labor cases may not be more than what the law provides and they may not be checked off from any amount due the employees without their written consent - Examples: o It is but just and fair that the lawyer who represented the struggling members of the union to benefits for all employees be paid his just fees by all those who received such benefit o If company grants same labor benefits to supervising employees as those awarded to non-supervisory workers not because of the special efforts of the latter’s lawyer but because of the company’s policy of non-discrimination, the lawyer is not entitled to claim atty’s fees from the supervisors for the benefits they received
Liability of persons benefited by counsel’s services - General Rule: A person who had no knowledge of, or objected to, the lawyer’s representation may not be held liable for atty’s fees even if it redounded to his benefit - Objection must be raised before and not after beneficial services by the lawyer - The liability is based on equity - Exception: Employment of a private lawyer to represent a government entity by an official who has no authority in law to do so since the benefits secured by the legal representation cannot take the place of the law and will not create an obligation of the part of the gov’t entity to pay the private lawyer for his services
Liability in derivative suits - Where the professional services of counsel are beneficial to the corporation, the counsel fees may be properly charged against corporation funds - Any stockholder on behalf of the corporation may oppose the grant of the said fees
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Liability in receivership proceedings - The assets under receivership may be liable for the fees of a lawyer employed by a receiver to help him in the discharge of his duties - But the atty’s fees in a receivership proceeding are personal obligations of the defendant and may not be paid out of the funds in the hands of the receiver unless services by the lawyer have redounded to the benefit of the receivership or of the plaintiff who asked for the appointment of the receiver
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Liability in trusteeship or guardianship proceedings - General rule: trustee may be indemnified out of the trust estate for his expenses in rendering and proving his accounts and for the counsel fees in connection therewith - Court may determine WON a trustee may be allowed expenses for atty’s fees and permitted to charge the same against the trust estate - Same rule applies in a guardianship proceedings - Property of ward may be lawfully answer for counsel fees of the lawyer employed by the guardian - No assets of the ward may be spent without the prior approval of the guardianship court
In upholding the will, atty is simply serving the departed owner of the estate and in effect serving the estate But estate may not be liable for counsel fees for services rendered to annul a will at the request od the executor; only the executor may be liable personally The benefit of the legal rep is the difference between what they would receive without a will and what they would have received under the will Rejection is not a valid ground to deny compensation to the lawyer as his services proved beneficial to the estate
Who are entitled to or to share in atty’s fees - General Rule: lawyers who jointly represent a common client for a given fee, without an agreement as to the division of fees, share equally as they are special partners for a special purpose - If several lawyers separately employed by a client dont have express agreement as to amount of fees, each will be entitled to no more than what his services actually performed are reasonably worthy - Court may award atty’s fee against the proceeds of a judgment may apportion the amount among the collaborating lawyers based on a division of service - Improper for atty to receive compensation for merely recommending another lawyer to his client
Liability in estate proceedings - Atty may not hold the estate directly liable for his fees. The liability for pay,net rests on the ecevutor or administrator who may either seek reimbursement from the state if he has already paid them or include them in his account with due notice to all parties interested - To hold estate ultimately liable for atty’s fees requires: o That the person to whom the services were rendered was at the time the executor or administrator o And the services were rendered in that capacity
Non-lawyer not entitled to fees - A non-lawyer cannot recover atty’s fee even if there is a law authorizing him to represent a litigant in court because it requires the existence of an atty-client relationship
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Restrictions on some lawyers to charge fees - A lawyer acting in a fiduciary capacity must not place himself in such a position as to make his interests antagonistic with those of his principal - Applied even in the absence of an express statutory provision - This operates to: o Restrict the right or to o Limit the amount of atty’s fees which the lawyer may collect
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If he is forced to resign, he may lose his right to fees earned therein If withdrawal is with the client’s written conformity, it is presumed that he and his client have agreed to terminate his services Withdrawal without the client’s written consent but it was for a justifiable cause made after due notice to the client, the lawyer may recover the reasonable worth of his services up to the date of his withdrawal
Right of counsel de oficio to fees - Counsel de oficio cannot charge government nor the indigent litigant for his professional services because it will violate constitutional restriction against taking of property without due process of law - WHY? He willingly assumed when he took his oath as a lawyer that he will reder free legal services whenever required by the court to do so - In ROC, there’s token compensation: o In light felonies, it must P30-50 o In grave felonies, P100 o Grave other than capital, P200 o Capital offense, P500
Representation of adverse interests - Simultaneous representation by a lawyer of opposing parties to a controversy, in the absence of the client’s consent to the dual representation made after full disclosure of the facts, negates lawyer’s right to receive compensation from both of them - Dual representation is improper fi atty’s fees for services rendered by the lawyer in that dual capacity is also improper
Attorney’s conduct affecting his right to fees - The right to recover from his client may be negated by misconduct on his part, such as carelessness or negligence, misrepresentation, abuse of the client’s confidence or unfaithfulness
Attorney’s discharge by client - Discharge without a valid cause before the conclusion of the litigation doesn't negate the lawyer’s right to recover payment o If there’s no express written agreement as to fees, lawyer may only be entitled to recover the reasonable value of his services up to the time he was dismissed o If there’s express written agreement and fee is:
Lawyer’s right unaffected by client’s conduct - A client cannot, in the absence of the lawyer’s fault, deprive the lawyer of his just fees already earned - Client cannot deprive his lawyer of what is justly duehim as atty’s fees unless lawyer waives such right
Withdrawal of counsel from the case - The withdrawal which prejudices the client negates his right to compensate for services rendered because it constitutes breach 71
Absolute and reasonable, then if discharged without justifiable cause will be entitled for the full amount Contingent and dismissed before conclusion of action, may recover reasonable value of his services thus rendered ** If contingency occurs or client prevents its occurrence by dismissing, he is entitled to the full amount agreed ** Lawyer should question his discharge otherwise he will be allowed recovery only on a quantum meruit basis
Client’s compromise of action Client has no right to compromise or waive so much of his knowledge claim secured through the efforts of his lawyers as would prejudive the stipulated fee, whether absolute or contingent, and the adverse party has no right to accept such compromise or waiver unqualifiedly
B. CONTRACT FOR ATTORNEY’S FEES Generally - Contract of professional services may either be o Oral o Written - The fee stipulated may be: o Absolute o Contingent o May be a fixed percentage of the amount recovered in the action - Contract may call for a downpayment or provide for fee per appearance, per piece of work or on an hourly basis - Written retainer > oral contract WHY? 1. In case of controversy as to the question of fees, written controls the amount 2. In case of dismissal of the lawyerby the client before the conclusion of the litigation without justifiable cause, atty entitled to the full amount stipulated in the written agreement. Without it, he can only recover the reasonable worth of his services up to the date of his dismissal
If with cause, it will not necessarily deprive the lawyer of his right to be paid
Client’s dismissal of action - Client may dismiss action even without consent of counsel but he may not deprive his counsel of what is due him as atty’s fees for services rendered o If dismissal is in good faith, may recover only reasonable worth of his service except when fee is contingent in which case there will be no recovery o If dismissal is in bad faith and wants to defraud lawyer, lawyer is entitled to the full amount stipulated in a valid written constract or in the absence of contract, it will just be based on quantum meuit - Lawyer’s consent to the dismissal doesn't necessarily negate his right to compensate unless such consent amounts to a waiver
Kinds of retainer: GENERAL and SPECIAL 1. General retainer or retaining fee
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Fee paid to a lawyer to secure his future services as general counsel for any ordinary legal problem that may arise in the routinary business of the client and referred to him for legal action – Clients pay lawyers fixed retainer fee monthly (depends with their agreement) – These fees are paid WON the cases referred to the lawyer – WHY? Because it is a compensation for lost opportunity since lawyer is deprived of the opportunity to render service – PURPOSE: insure and secure future service for a particular cases and to prevent undue hardship on the part of an atty – These are in addition to what the client has agreed to pay him for services which he has been employed to perform 2. Special retainer - Fee for a specific case handled or special services rendered by the lawyer for a client
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Exception: If nullity is due to want of authority on the part of one of the contracting parties or to some irregularity in its formal execution or to the unreasonable amount of fees fixed, lawyer can recover what is justly due him for his services on the basis of quantum meruit. o WHY? Because the services are legitimate and while contract will not be enforced because of its formal defects, the rule against unjust enrichment will entitle the lawyer to recover the reasonable worth of his services
Effect of unconscionability of amount - Courts may properly modify or disregard a contract of professional services whenever the fee therein fixed is unreasonable - Basis why courts should interfere: o Provision of law that states that “atty shall be entitled to have and recover from his client no more than a reasonable compensation for his services” o Provision of law stating that “a written contract for services shall control amount to be paid unless found by the court to be unreasonable” o Because a lawyer is an officer of the court charged with the duty of assisting the court to administer impartial justice - Effect of unconscionability of amount: it will render the contract INVALID and it will not preclude recovery; it will only justify the court to fix the reasonable worth of the lawyer’s service on the basis of quantum meruit Contingent fee contract - This is a contract between a lawyer and client in which the lawyer’s professional fee, usually a fixed percentage of what may be recovered in the action, is made to depend upo the success of the litigation
**Counsel fee vs atty’s fee - Atty’s fee is part of the damages which the court may award in favor of the prevailing party Validity of Contracy - A contract of professional services becomes the law between the parties when stipulations therein are not contrary to law, good morals, good customs, public policy or public order - Example of a null and void contract: A disqualified judge enters into a professional contract; agreement stipulating an amount which is more than what a law has authorized Effect of nullity of contract - General Rule: Nullity which results from illegality of the object precludes a lawyer from recovering his fees
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A much higher compensation is allowed since there’s also the risk that the lawyer will not get anything - This contract is under the supervision and scrutiny of the court to protect clients from unjust charges. Courts may reduce amount if it’s unreasonable even if the lawyer manifests conformity. WHY? Because when he took his oath, he submitted himself to the authority of the court and subjects professional fees to judicial control - Must be in writing, without which, they can only recover on the basis of quantum meruit - If there’s initial fee, it’s will be a retaining fee independednt of or in addition to the contingent fee. It can still be contingent as long as the bulk is dependent upon the successful outcome of the action - A contingent fee contract is often the only way by which a poor litigant may have his right enforced by a lawyer. But it’s also for the benefit of the lawyer because he is allowed much higher compensation that what he would be entitled if the fee is absolute Validity of contingent fee - Generally valid and binding unless obtained by fraud , imposition or suppression of facts or the fee is clearly excessive as to amount to an extortion
Construction of professional contract - General Rule: To adopt such construction as would be more favorable to the client even if it would work prejudice to the lawyer - BASIS: o Because of the inequality in situation between an atty who knows the technivalities of law and his status as an officer of the court on the one hand and a client who usually is ignorant of the vagaries of the law on the other hand - A lawyer who prepares such contract is presumed to have seized up the entire situation before entering into the agreement. He can’t complain that the fee mutually fixed is disproportionate to the work called for in the contract - Words inserted by a client in his own handwriting are to be taken in his favor because it is presumed that it was made for his benefit - A contract of professional services is interpreted in accordance with its terms and in favor of the greatest reciprocity of interest
C. MEASURE OF COMPENSATION Rule 20.01 - Guidelines in determining amount of fees
Effect of agreement to pay litigation expenses - The rules of the profession forbid a lawyer from agreeing to pay or bear the expenses of litigation but he may, in good faith, advance the expenses as a matter of convenience but subject to reimbursement - PURPOSE; To prevent a lawyer from acquiring an interest in the litigation and avoid conflict of interests between him and his client
A lawyer shall be guided by the following factors in determining his fees: a) The time spent and the extent of the services rendered or required; b) The novelty and difficulty of the questions involved; c) The importance of the subject matter; d) The skill demanded; e) The probability of losing other employment as a result of acceptance of the proffered case;
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f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs; g) The amount involved in the controversy and the benefits resulting to the client form the service; h) The contingency or certainty of compensation; i) The character of the employment, whether occasional or established; and j) The professional standing of the lawyer.
The nullity of a contract will preclude a lawyer from recovering compensation for services rendered only if such invalidity proceeds from the illegality of the object of performance or of the service performed. Otherwise, he may recover on quantum meruit basis. Unconscionable fee – that amount which, under the circumstances surrounding the case, constitutes an over exaggeration of the worth of the lawyer’s services
General Rule: Where there is a valid written contract fixing the fees, the contract is conclusive as to the amount of compensation.
What is unconscionable depends upon the circumstances of each case; there is no hard and fast rule. Example: what is a reasonable amount in a hard-fought litigation may be unreasonable in a simple collection case.
Exception: Unless both the attorney and the client expressly or impliedly set aside the contract and submit the question of reasonableness of the amount of fees for the court to resolve on quantum meruit basis
If a lawyer presents a claim for more than the amount fixed in the contract and the client not only rejects such claim but also questions the reasonableness of the amount fixed therein, both of them are deemed to have impliedly disregarded the contract and placed themselves in the position as though there is no express stipulation as to the attorney’s fees.
Quantum meruit – as much as a lawyer deserves The court will fix the amount of attorney’s fees on quantum meruit basis in any of the following instances: a. The agreement as to counsel fees is invalid for some reason other than the illegality of the object of performance; b. The amount stipulated in the contract is unconscionable; c. No agreement as to fees exists between the parties; d. The client rejects the amount fixed as unconscionable and is found to be so; and e. Some act or event has precluded the lawyer from concluding the litigation without fault on his part.
If there is an acquiescence by the lawyer of his discharge, he may be entitled to recover his fees merely on quantum meruit basis, notwithstanding the existence of a written agreement for so long as he never questioned it. However, if there is a valid written agreement as to fees and the lawyer’s discharge is unlawful or in bad faith, he will be entitled to the full amount so agreed.
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The value of the lawyer’s services is in large measure determined by the nature, quality and quantity of such services. The importance and value of his services should be measured and considered as a whole.
is contingent. A lawyer whose fee is contingent assumes the risk of not getting paid for his services. The legislature may by law prescribe the limit of the amount of attorney’s fees which a lawyer may charge his client.
The time employed is not in itself an appropriate basis for fixing the amount of compensation, but length of employment may mean more work and lesser opportunity for other profitable retainers.
Rule 20.02 - A lawyer shall be entitled to fees based on work performed A lawyer shall, in cases of referral, with the consent of the client, be entitled to a division of fees in proportion to work performed and responsibility assumed.
The skill, experience, and standing of a lawyer bear a direct proportion to the amount of attorney’s fees to which he may be entitled for his services.
It is improper for a lawyer to receive compensation for merely recommending another lawyer to his client for it would tend to germinate the evils of commercialism and to destroy the proper appreciation of professional responsibility.
Generally speaking, the bigger the size or value of the interest or property involved in a litigation the higher the attorney’s fee is. The loss of opportunity for other employment on the part of a lawyer who accepts a retainer is taken into consideration in fixing the amount of the lawyer’s fee.
It is only when, in addition to the referral, he performs legal service that he will be entitled to a fee.
Test case. Where several actions or possible disputes involve an identical question and one case is litigated as a test case, the value in controversy in all the actions should bear its appropriate proportion to the amount due as fees to the lawyer who prosecuted the test case. A test case is usually litigated with energy and diligence because the resolution of the other actions is made to depend on the favorable outcome of the test case.
Rule 20.03 - A lawyer shall not receive fee from another without client's consent A lawyer shall not, without the full knowledge and consent of the client, accept any fee, reward, costs, commission, interest, rebate or forwarding allowance or other compensation whatsoever related to his professional employment from anyone other than the client. General rule: A lawyer should receive compensation for his services in a case only from his client and not from another person. This is to secure
The fact that a lawyer, in spite of his efforts, failed to secure for his client what he desires does not, however, deprive him of the right to recover compensation for his services except when the fee agreed upon 76
the lawyer’s wholehearted fidelity to the client’s cause; there should be no room for suspicion. A corollary of the foregoing rule is the principle that whatever a lawyer receives from the opposite party in the service of his client belongs to the client. Rule 20.04 - A lawyer shall avoid controversies with clients concerning his fees A lawyer shall avoid controversies with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice of fraud. Suits to collect fees should be avoided, and only where the circumstances imperatively require should a lawyer resort to lawsuit to enforce payment of his fees.
He may take judicial action to protect his right to fees either a) in the main action where his services were rendered or b) in an independent civil suit against his client.
Cases where the lawyer can recover fees through an independent civil action: o The court trying the main action in which the lawyer’s services were rendered dismissed the client’s action or awarded nothing to the client o The court that decided the main litigation had no jurisdiction over the action or had already lost it o The person liable for attorney’s fees is not a party in the main action o The court reserved to the lawyer the right to file a separate civil suit for the recovery of his fees o The services for which the lawyer seeks payment were rendered in connection with a matter not in litigation An independent civil action for recovery of atty’s fees is subject to the usual procedural requirements as an ordinary suit The court having jurisdiction to try the main action has also jurisdiction to pass upon the question of fees The persons who are entitled to or must pay the fees have the right to be heard upon the question of their propriety or amount -> necessity of a hearing.
E. ATTORNEY’S FEES AS DAMAGES D. PROCEDURE TO RECOVER FEES
The attorney’s fee which a court may, in proper cases, award to a winning litigant is, strictly speaking, an item of damages. It differs from that which a client pays his counsel for the latter’s professional services. The former is an indemnity for damages sustained by the successful party in prosecuting or defending, through counsel, his cause in court. The latter, on the other hand, refers to the compensation for the counsel’s services.
Petition to recover fees should be filed as an incident to the main action. It cannot be availed of if the client recovers nothing in the main action. Why? The question of fees cannot be determined until after the main litigation has been decided and the subject of recovery is at the disposition of the court Enforcement through main action is preferable than an independent civil action 77
induce the prosecutor to prosecute, or that the action was filed by a desire to vex or humiliate him. 5) When the action is clearly unfounded; The action must be so untenable as to amount to gross and evident bad faith. 6) When defendant acted in gross and evident bad faith; This is a corollary of the general principle that everyone must, in the performance of his duties, observe honesty and good faith and of the rule that any one guilty of fraud in the discharge of his obligations shall be liable for damages. 7) In actions for support; The person obliged to give support is also obliged to pay such attorney’s fees as may be necessary to enable the person entitled thereto to enforce his rights. 8) In cases of recovery of wages; The court may grant attorney’s fees in favour of household helpers, laborers, and skilled workers. 9) In actions for indemnity under workmen’s compensation and employee’s liability laws; The Workmen’s Compensation Act expressly authorized the award of attorney’s fees in favour of employees in workmen’s compensation cases, but PD 442 repealed this Act and replaced the compensation scheme with a state insurance system under the administration of the Employees Compensation Commission. Such circumstance, however, does not mean that an employee who appeals from an adverse ruling of the Commission may no longer be entitled to an award of attorney’s fees for the Civil Code expressly allows the grant of attorney’s fees in such cases. 10) In a separate civil action arising from a crime;
The fee as an item of damages belongs to the party litigant and not to his lawyer. It forms part of his judgment recoveries against the losing party. However, the two concepts of attorney’s fees are similar in other respects. They both require, as a prerequisite to their grant, the intervention of or the rendition of professional services by a lawyer. Both fees are also subject to judicial control and modification. General rule: Attorney’s fees in the concept of damages are not recoverable. It is not the fact of winning alone but the attendance of any of the special circumstances and, in the case of a public litigant, the existence of the right to private counsel that justify the award of attorney’s fees as damages in favor of the prevailing party. Exceptions to the rule (attorney’s fees in the concept of damages may be awarded in the ff circumstances): 1) When there is agreement; 2) When exemplary damages are awarded; Exemplary damages are awarded by way of example for the public good as warranted by the circumstances of the case. 3) When defendant’s action or omission compelled plaintiff to litigate; To justify the award of attorney’s fees, the act or omission of the other party must be in gross bad faith. 4) In criminal cases of malicious prosecution; To entitle a party to recover such fees, he must not only show that he was acquitted in the criminal action but must also prove that the person who charged him knowingly made a false statement of facts to 78
An offended party may recover damages arising from a crime against the offender either in the criminal proceeding itself or in a separate civil action filed for the purpose. But he may be granted attorney’s fees only in a separate civil action to recover all items of damages or in a civil suit to enforce the subsidiary civil liability adjudged in the criminal proceedings. 11) When at least double costs are awarded; Double costs are usually awarded in favor of the winning party where the action or appeal is frivolous. A frivolous action or appeal is one which presents no justiciable question or is so readily recognizable as devoid of merit on its face that there is little prospect of succeeding. 12) When the court deems it just and equitable; To justify such award, there should be factual, legal or equitable justification which should appear on record. A mere statement by the court that it deems it just and equitable is insufficient. 13) When a special law so authorizes.
unless the text thereof plainly shows the case comes within one of the exceptions. In the absence of a showing that the trial court abused its discretion, the grant of attorney’s fees or the denial thereof may not be disturbed on appeal. However, the appellate court may, in the exercise of its discretion, award attorney’s fees or increase or reduce the amount thereof whenever the law and the circumstances so warrant. The claim for attorney’s fees in the concept of damages and the ground relied upon must be pleaded. In other words, the claim must not only be alleged; the existence of the factual basis and the amount thereof must also be proved. For it is settled that the award of attorney’s fees is the exception rather than the rule; hence, the trial court should make findings of fact and law, which would bring the case within the exception and justify the award.
Their purpose is to lessen unnecessary litigation, as a plaintiff would rather think twice before instituting a clearly unfounded suit. To entitle a party to recover attorney’s fees as an item of damages, he must not only show that the case falls under any of the exceptions; he must have employed and, in the case of a public litigant, must show his right to employ a private counsel as well. A successful litigant who prosecuted his action without the assistance of counsel is not entitled to the award of attorney’s fees. The award of attorney’s fees is essentially discretionary with the trial court. The decision should state the reason why the award is made,
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However, some privileged communications lose this character by some supervening act done pursuant to the purpose of the communication. o Examples: communication intended by the client to be sent to a third person through his attorney, contents of a pleading prepared by an attorney based on the communication after the pleading is filed Reason for the Rule
CHAPTER IX. PRESERVATION OF CLIENT’S CONFIDENCE
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CANON 21 - A LAWYER SHALL PRESERVE THE CONFIDENCE AND SECRETS OF HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT RELATION IS TERMINATED Duty to preserve client’s confidence -
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It is the duty of an attorney to “maintain inviolate the confidence, and at every peril to himself, to preserve the secret of his client.” o This duty involves the application of rules of evidence and of professional ethics needed to safeguard the client’s confidence. This rule makes the confidential communication between the attorney and client privileged. Neither of them can be compelled to disclose any privileged communication. This rule applies to matters disclosed to him by prospective clients.
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Adequate legal representation requires a full disclosure of the facts by the client to his attorney. The purpose of the privilege is to encourage a client to make full disclosure to his attorney and to place unrestricted confidence in him in matters affecting his rights or obligations. It is founded proceeds on the premise that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence. = public policy It is also to preserve the confidential and trust relation which exists between attorney and client. Information secured is sacred to the employment to which it pertains, and to permit it to be used in the interest of the attorney and other persons or, worse, in the interest of the adverse party.
Duration of Duty -
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Requisites of the privilege
This duty is perpetual. It outlasts his professional employment and even the death of the client. This professional confidence is not divested by these events. After the severance of the relation, he may not: 1. Do anything which will injuriously affects his former client 2. Disclose or use against him any knowledge of information acquired by virtue of his professional relationship.
1. 2. 3. 4. 5. 6. -
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Legal advice of any kind This is sought from an attorney The attorney does this in his professional capacity It is with respect to communications relating to that purpose The client makes it in confidence. It permanently protects such communication. This may be waived
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If all of them are present, there is evidentiary privilege. The question of privilege is for the court to determine and may not be passed upon in advance by the appellate court in a certiorari proceeding. The nature, circumstances and conditions of the questions or answers determine if the privilege should be granted. The party who asserts the privilege has the burden of proof to establish it.
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discloses the information to no third person other than one reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it was given. When a third person overhears the conversation, the privilege is not necessarily destroyed but the third person is not covered by the privilege.
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Relation of attorney and client -
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The person from whom legal advice is sought must be an attorney. However, if a person poses as a lawyer for some ulterior purpose and a client confides to him confidential communications in reliance upon the supposed relations of attorney and client, it is privileged. A communication not within the attorney-client relation is not privileged. When a person solicits professional employment and volunteers information to a lawyer, it is not a confidential communication within the meaning of the privilege.
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Confidentiality -
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The privilege embraces not only oral or written statements but actions, signs or other means of communication. The only question is whethere they have been intended to be part of the communication. A communication may be transmitted by any form of agency (ex: messenger, interpreter)
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The client must intend the communication to be confidential. The mere relation does not automatically assume confidential nature. The essence of the veil of secrecy is because it is to seek legal advice from his attorney as to his rights or obligations. A confidential communication refers to information transmitted by voluntary act of disclosure between attorney and client in confidence and by means which, so far as the client is aware,
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It applies to the attorney and his client as well as to the attorney’s secretary, stenographer or clerk with reference to any fact acquired in such capacity. It also applies to any other agent of transmitting the communication. An expert needed for effective consultation is also covered. The fact that a person to whom the privilege extends will be presented as a witness does not, however, render a communication, otherwise privileged and acquired by him, not privileged. The privilege is intended primarily for the protection of the client and incidentally in consideration for the oath and honor of the attorney.
Application of rule -
Unprivileged matters
It may either be privileged or unprivileged within the meaning of the evidentiary rule against compelling the disclosure of privileged communications. This is only important when a lawyer is called to be a witness but he must still give importance to propriety and ethics.
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The work product of a lawyer, such as his effort, research and thought, contained in his files is privileged. The purchase of the practice and goodwill of a deceased attorney by another lawyer not his partner may likely involve a violation of that rule. A document privileged upon delivery to an attorney retains its privileged character in the hands of the client. A distinction should be drawn between a crime or fraud already committed by a client on the one hand and a crime or fraud being committed or is about to be committed on the other hand. If it is about to be committed, it is not covered by the privilege. o The litigation should not have commenced. o A third person should not be implicated. o An attorney should not be employed for a future criminal transaction. o It should not be for the prosecution of a lawyer for a criminal offense. The privilege extends to non-disclosure of the name of the client if it will implicate the client or where the disclosure would open the client to civil liability. Relevant statements made in pleading or in open court are absolutely privileged regardless of their defamatory tenor.
Any communication that lacks any element is generally not privileged. The communication must have been transmitted by a client to an attorney for the purpose of seeking legal advice. Papers given to an attorney for custodial purposes normally aren’t covered by the character of privileged communication. The privilege does not, as a rule, attach to communications concerning the creation of the attorney-client relationship and the name of the client.
Rule 21.01 - A lawyer shall not reveal client’s confidence. A lawyer shall not reveal the confidences or secrets of his client except: a) When authorized by the client after acquianting him of the consequences of the disclosure; b) When required by law; c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action. -
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The rule also applies to matters disclosed to the lawyer by a prospective client. A lawyer may not disclose information other than what may be necessary to prosecute or defend his client’s cause. A lawyer must not send files to the opposing party showing the weakness of the case. Only the client can destroy the privilege. If a client after his testimony confides to his counsel that he has committed perjury, it then involves a balancing of loyalties. Either he owes it to the profession and the public to bring the knowledge to the prosecuting authorities or he should endeavor to rectify it together with the client. This conflict may be
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reconciled by confining the disclosure to unprivileged communications or to those exceptions to the privilege. Loyalty to the court also consists of the steadfast maintenance of principles which the courts themselves have evolved for the effective administration of justice, one of the most firmly established of which is the preservation undisclosed of the client’s confidences communicated to the lawyer in his professional capacity. Unless the revelation by a lawyer of his client’s confidence falls under any of the exceptions, it constitutes a breach of trusts sufficient to warrant imposition of disciplinary sanction against him. Article 209 of the RPC (revelation of secrets) is distinct from the disbarment proceedings against an erring lawyer.
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Exceptions to rule against disclosure of client’s secrets
The privileged relation exists only for lawful and honest purposes. It cannot shield wrongdoings. If the attorney is accused by his client or a third party of misconduct, he may disclose the truth. He may do what is needed as is necessary to protect his rights.
Communications as to crime
1. When authorized by the client after acquainting him of the consequences of the disclosure 2. When required by law 3. When necessary to collect his fees or to defend himself, his employees or associates or by judicial action 4. When it refers to the commission of a contemplated crime or the perpetuation of a fraud
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The client may waive either personally or through his attorney. But when it involves the attorey’s relation with his client, only the client may waive it. A lawyer may not waive it as an excuse to justify his disclosure or use, in favor of a third party, of his client’s secrets. The waiver cannot be partial.
Since the privilege is intended primarily for the client’s protection, only the client can waive it. The exception is when it is with regard to the attorney’s secretary, stenographer or clerk because the attorney’s consent is necessary.
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The privileged communication between attorney and client may be a shield of defense as to crimes already committed. He may confess guilt and be covered by the privilege. The protection though does not extend to those made in contemplation of a crime or perpetuation of a fraud. The privilege cannot be used as a weapon of offense to enable a person to carry out a contemplated crime against society. The law does not make a law office a nest of vipers in which to hatch crimes of frauds. The one alleging that the communication is not privileged must show prima facie evidence that ithas some foundation in fact. However, if a client not knowing a contemplated action to be wrong or having some doubt in that respect makes it privileged.
It is the duty of an attorney to divulge the communication of his client as to his announced intention to commit a crime to the proper authorities. His duty to the public obliges him to disclose it.
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Rule 21.02 - A lawyer shall not use client’s secrets without his consent A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use he same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto.
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Rule 21.05 - A lawyer shall adopt measures against disclosures of client’s secrets A lawyer shall adopt such measures as may be required to prevent those whose services are utilized by him, from disclosing or using confidences or secrets of the client.
- The revelation by a lawyer of the client’s confidence or secret without his consent is improper but when it is done to benefit the lawyer or a third person without the client’s consent is more reprehensible because it strikes deeply against the attorney-client relationship.
In the discharge of his professional duties to a client, a lawyer may avail of clerical aid from certain individuals. The information they encounter is privileged.
- The profession will suffer by the loss of confidence in the lawyer. Rule 21.03 - A lawyer shall not give information from his files A lawyer shall not, without the written consent of his client, give information from his files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or any similar purpose. -
The rule is that the professional employment of a law firm is equivalent to the retainer of the members thereof even though only one of them is consulted; conversely, the employment of one member of a law firm is generally considered as employment of the law firm. The disclosure is not to a third person because members of associates in the law firm are considered as one person.
Rule 21.06 - A lawyer shall avoid indiscreet conversation about client’s affairs A lawyer shall avoid indiscreet conversation about a client’s affairs even with members of his family.
The work product of a lawyer is included in privileged matters. The purchase of the goodwill of a deceased attorney by another lawyer may likely involve a violation of such rule.
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This rule is intended to better preserve the client’s confidences and secrets.
Rule 21.07 - A lawyer shall not reveal his having been consulted
Rule 21.04 - A lawyer may disclose affairs of client to partners
A lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest.
A lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client. 84
The disclosure and the lawyer’s opinion for a prospective client creates a relationship even if he does not eventually accept the employment. He should ascertain as soon as practicable whether the matter would involve a conflict of interest with his other client or his own. If so, he should not allow himself to be employed with the prospective client. -
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But insofar as the court and the adverse party are concerned, the severance of the relation of attorney and client is not effective until a notice of discharge by the client or a manifestation clearly indicating that purpose is filed with the court and a copy thereof served upon the adverse party. Before that formality is complied with, any judicial notice sent to counsel is binding upon the client.
CHAPTER X. TERMINATION OF AUTHORITY, CHANGE OF COUNSEL AND ATTORNEY’S LIEN A. TERMINATION OF COUNSEL’S AUTHORITY CANON 22 - A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE CIRTUMSTANCES.
The duty of the lawyer, upon being informed by his client that his services have been dispensed with, is to file a notice of withdrawal with the client's conformity.
A client has the absolute right to discharge his attorney at any time with or without cause or even against his consent. The existence or nonexistence of a just cause is important only in determining the right of an attorney to compensation for services rendered.
EFFECT OF DISCHARGE OF ATTORNEY: He cannot pretend to continue representing his client. However, if he reappears as counsel, it is presumed that he has been reemployed by the client.
The client's loss of confidence in his lawyer deprives the relation of that special element of trust which furnishes the basis of the client's right to dismiss him.
DEATH OR INCAPACITY OF CLIENT: As the relation of attorney and client is personal and one of agency, it terminates upon the death of the client. Thereafter, the attorney loses his standing in court to represent the deceased client or the latter's estate, unless he is retained by the administrator, executor or legal representative of the deceased client.
LIMITATIONS ON CLIENT'S RIGHT: The attorney may, in the discretion of the court, intervene in the case to protect his right to fees. A client may not be permitted to abuse his right to discharge his counsel as an excuse to secure repeated extensions of time to file a pleading or to indefinitely avoid a trial.
The relation of attorney and client also terminates upon the incapacity or incompetency of a client during the pendency of the litigation, the reason being that the client loses the legal capacity to contract or to control the subject matter of the action.
NECESSITY OF NOTICE OF DISCHARGE: No formal notice of discharge by the client to his lawyer is necessary. Any act of the client indicating an unmistakable purpose to terminate the relation is sufficient.
It shall be the duty of the attorney to inform the court promptly of the death, incapacity or incompetency of his client and to give the name and residence of his executor, administrator, guardian or other legal representative. 86
and the adverse party at least three days before the date set for hearing. He should moreover present his petition well in advance of the trial of the action to enable to client to secure the services of another lawyer. If the application is filed under circumstances that do not afford a substitute counsel sufficient time to prepare for trial, the court may deny his application and require him to conduct the trial.
Rule 22.01 – A lawyer shall withdraw only for good cause A lawyer may withdraw his services in any of the following cases: a) When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling; b) When the client insists that the lawyer pursue conduct violative of these canons and rules; c) When his inability to work with co-counsel will not promote the best interest of the client; d) When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively; e) When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement; f) When the lawyer is elected or appointed to public office; and g) Other similar cases.
Until his withdrawal shall have been approved, the lawyer remains counsel of record. Any notice served upon him is notice to and binding upon the client. DEATH OF ATTORNEY: A contract of professional employment terminates upon the death of an attorney. But the death of a partner in a law firm does not severe the professional employment between the law firm and the client. Neither does the dissolution of a law firm in itself bring about that result.
He may not withdraw or be permitted to withdraw as counsel in a case if such withdrawal will work injustice to a client or frustrate the ends of justice.
ACCEPTANCE OF INCOMPATIBLE OFFICE: A lawyer's qualification to public office operates to terminate the existing attorney-client relationship. The court does not, however, take judicial notice of the appointment or election of an attorney to a public office. In the absence of a withdrawal or manifestation to that effect, the court may still regard him as the counsel of record upon whom written notice may be served which will bind the client.
A lawyer may retire at any time from any action or special proceeding with the written consent of his client filed in court and copy thereof served upon the adverse party. If no new counsel has entered his appearance, the court may, in order to prevent a denial of a party's right to assistance of counsel require that the lawyer's withdrawal be held in abeyance. PROCEDURE FOR WITHDRAWAL: The lawyer must file a petition for withdrawal in court. He must serve a copy of his petition upon his client
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chance to have his right to attorney’s fees be preserved and protected
B. CHANGE OR SUBSTITUTION OF COUNSEL Change of counsel
Defective substitution and effects thereof
1) client discharges attorney with or without cause: no consent or notice to lawyer needed, nor court approval 2) attorney may initiate move by withdrawing his appearance with written consent of client or with leave of court on some justifiable ground 3) substitution of counsel in the form of application for that purpose: constitutes an appearance of the substituting counsel and is a polite way of effecting change; compliance with formalities is necessary since it involves ethical considerations
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A defective substitution is one which lacks any of the requisites for a valid substitution. It does not effect a change of counsel; nor constitute an appearance of new lawyer, both of whom shall be deemed counsel of record; pleadings filed by the new lawyer deemed effective
Employment of additional counsel
Requirements for substitution
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1) written application for substitution 2) written consent of client 3) written consent of attorney to be substituted
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**in case written consent of attorney cannot be secured, proof of service of notice of application upon attorney to be substituted. ** in case of death of original attorney, additional requirement of verified proof of death necessary usually initiated by substituting counsel hence the need to obtain conformity of original lawyer or at least notice to original lawyer of substitution consent of original lawyer or notice requirement is designed to afford the lawyer the opportunity to protect his right to attorney’s fees. If he gives consent, it is presumed he has settled that question. If not, he can ask in same action that his
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Client has right to as many lawyers as he can afford. Client’s proffer of assistance of additional counsel should not be regarded as evidence of want of confidence. Professional courtesy requires that a lawyer retained as collaborating counsel should at least communicate with counsel of record before entering his appearance and should decline association if objectionable to original counsel. But if first lawyer is relieved by client, another lawyer may come into the case
C. ATTORNEY’S LIEN Rule 22.02 – A lawyer’s withdrawal or discharge shall be without prejudice to his attorney’s lien A lawyer who withdraws or is discharged shall, subject to a retainer lien, immediately turn over all papers and property to which the client is entitled, and shall cooperate with his successor in the orderly transfer of
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the matter, including all information necessary for the proper handling of the matter.
PROPERTY TO WHICH LIEN ATTACHES: The general, possessory or retaining lien of an attorney attaches to all property, papers, books, documents or securities of the client that lawfully come to the lawyer professionally or in the course of his professional employment, not necessarily in connection with a particular case but any case or matter handled for the client. WHEN LIEN ATTACHES: The retaining lien attaches from the moment the attorney lawfully obtains and retains possession of the funds, documents and papers of the client.
The law creates in favor of a lawyer a lien not only upon the funds, documents and papers of his client which have lawfully come into his possession until what is due him has been paid (retaining lien) but also a lien upon all judgments for the payment of money and executions issued in pursuance of such judgments rendered in the case wherein his services have been retained by the client (charging lien).
BOND FOR RETURN OF DOCUMENTS: The court may require the surrender of the lien upon the client’s posting of an adequate bond or security to guarantee payment of the lawyer’s fees.
A retaining lien is a general lien for the balance of the account due to the attorney from his client for services rendered in all matters which he may have handled for the client, regardless of their outcome. A charging lien is a special lien in a particular case and presupposes that a favorable judgment has been secured for the client in that case.
If the papers or documents have been improperly or illegally taken from the custody of the attorney, his lien is not lost thereby, unless by his act or omission he waives his right thereto.
NATURE AND ESSENCE OF RETAINING LIEN
SATISFACTION OF LIEN: The lawyer may lawfully apply the client’s funds in satisfaction of his claim. All that is required is for the lawyer to send his client an accounting. But where the client dispute’s the amount, he should file an action in court to fix the amount of fees.
A retaining lien is a passive right and cannot be actively enforced. The inconvenience that may cause the client as a result of the retaining lien exercised by the attorney is the reason and essence of the lien. Such inconvenience or disadvantage may induce the client to pay the lawyer and his fees and disbursements.
NATURE AND ESSENCE OF CHARGING LIEN REQUISITES FOR VALIDITY (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 or disbursements
A charging lien is a special lien. It is a charge upon the thing which is protected in equity. It presupposes that the attorney has secured a favorable money judgment for his client. REQUISITES FOR VALIDITY 89
(1) attorney-client relationship (2) attorney has rendered services (3) money judgment favorable to the client has been secured in the action (4) attorney has a claim for attorney’s fees or advances (5) statement of his claim has been duly recorded in the case with notice thereof served upon the client and the adverse party
ASSIGNMENT OF CHARGING LIEN: It may be transferred (i.e. to the surviving partners if the lawyer dies).
A copy of the claim is served upon the client to give him the opportunity to object. A copy is also served upon the adverse party so that he may preserve the attorney’s fees and take cognizance of the claim of the lawyer. TO WHAT CHARGING LIEN ATTACHES: Payment of money and the executions issued in pursuance of such judgment. It does not attach to property or land in litigation. But he cannot have preference over and better right than the judgment creditor in the payment of his professional fees. (This means that: a legitimate debt of his client will be paid first before his lien attaches). EFFECTS OF CHARGING LIEN: The lien gives the lawyer the right to collect a certain amount from out of the judgment or award rendered in favor of his client. The lien survives the death of the client and need not therefore be enforced in the proceeding for the settlement of the client’s estate. EXTINGUISHMENT OF CHARGING LIEN: It is extinguished when the client loses the action.
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