Memory Aid - Ethics

SAN BEDA COLLEGE OF LAW, 2000 – 2001

MEMORY AID in LEGAL ETHICS Any form of reproduction of this copy is strictly prohibited!!!

I. LEGAL ETHICS Legal Ethics – branch of moral science which treats of the duties which an attorney owes to the court, to his client, to his colleagues in the profession and to the public. The Supreme Court under Sec. 5(5), Art. VIII of the 1987 Constitu Constitution tion shall have the power to admit candidates to the practice of law. The constitutional power to admit candidates to the legal profession is a judicial function and involves involves the exercise exercise of discretion. discretion. Petition Petition to that end is filed with the Supreme Court as are other proceedings invoking judicial function (In re: Almacen 31 SCRA 562 ) The SC acts acts throug through h a Bar Examinat Examination ion Committee in the exercise of its judicial function to admit admit candid candidate ates s to the legal legal profes professio sion. n. Thus, the Committee is composed of a member of the the Cour Courtt who who acts acts as Chai Chairm rman an and and 8 members of the bar who acts as examiners in the 8 bar subjects with one subject assigned to each. (In re: Lanuevo 66 SCRA 245 )

Brief History Of The Canons Of Professional Ethics Pennsylvania Justice George Shar Sharsw swoo ood d publ publis ishe hed d in 1854 1854 his his essa essay y on LEGAL ETHICS. Earlier, David Hoffman wrote his “FIFTY “FIFTY Resoluti Resolutions” ons” dealing dealing with with lawyer’s lawyer’s duty duty.. In 1881 1881,, Thom Thomas as Good Goode e Jone Jones s of the the Alabama Bar proposed adoption of a Code of Legal Ethics. The code was drafted in 1883 and adopte adopted d in Decemb December er 1887. 1887. It contai contained ned 56 canons. canons. In 1908, the American American Bar Associati Association on adop adopte ted d the Canons nons.. New Cano anons were ere introduced in 1928, 1933 and 1937. The ABA Canons of Legal Ethics was adopted by the Phil. Bar Association in 1971, and this adoption was restated in 1946. In the meantime, the American Bar Ass Associ ociati ation adop adoptted a new new Code ode of Professional Responsibility on August 12, 1969, which which underw underwent ent severa severall amendm amendment ents s until until 1976. Today, the main basis of our legal ethics is the Code of Professional Responsibility. It is the embodiment into one Code of the various pertinent pertinent and subsisting subsisting rules, guidelines, guidelines, and standa standards rds on the rule of conduc conductt of lawyer lawyers s sourced from the Constitution, Rules of Court, Canons of Professional Ethics, statutes, special laws laws,, trea treati ties es and and decis decisio ions ns whic which h must must be obse observ rved ed by all all memb member ers s of the the Bar Bar in the the exercise of their profession whether in or out of court as well as in their public and private lives.

The Code Code of Profe Professi ssiona onall Respon Responsib sibil ility ity was initially drafted in 1980 by the IBP Committee On Responsibi Responsibility lity,, Discipli Discipline ne and Disbarment Disbarment and was was subm submit itte ted d to the the Supre uprem me Cour Courtt for for approval. It took the Supreme Court more than seven years to decide on its formal promulgation as a code of conduct for members of the Bar. The Code of Professional Responsibility was finally promulgated by the Supreme Court on June une 21,19 1,1988 88.. The Cod Code is a judic udicia iall command, not a suggestion, promulgated as it is by no less than the Highest Court of the land which which has suprem supremacy acy of superv supervisi ision on over over all members of the Bar. Practice of Law – means any activity in or out of court which requires the application of law, legal principle, practice or procedure and calls for legal knowledge, training training and experience. experience. To engage in the practice of law is to perform those acts which are characteristics of the legal profession. Generally, to to practice law is to give notice or render any kind of service, which devise or service requires the use, in any degree, of legal knowledge or skill.

Q: Atty. A has plans to join the judiciary. judiciary. He has been a lawyer for about twenty years now. He has been a legal consultant to a number of busi busines ness s enti entiti ties es,, and and an “of “of coun counse sel” l” of a medium sized law firm. Never during his 20 year stint as a lawyer, has he had the opportunity to conduct any actual trial or litigation work. Does he possess possess the necessary qualificati qualifications ons for a Regional Trial Court judge? A: YES. In Cayet Cayetano ano vs. Monso Monsod d 201 SCRA SCRA 210 , the Supre Supreme me Court Court define defined d the “practice of law” as any “activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience.” Under the said definition, Atty. A is qualified to be appoi appoint nted ed as a memb member er of the the judi judici ciar ary, y, assuming that he has the other qualifications for the particular position. Strictly Strictly speaking, speaking, the word word practice practice of law implies the customary or habitual holding of oneself to the public as a lawyer and demanding compensati compensation on foe his services. services. (People (People vs. Villanueva 14 SCRA 111) The practic practice e of law is not a proper property ty right but a mere privilege and as such must bow to the inherent regulatory power of the Court to exac exactt comp compli lianc ance e with with the the lawy lawyer er’s ’s publ public ic responsibilities. (In re Edillion 84 SCRA 568 )

1 Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA, Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee

SAN BEDA COLLEGE OF LAW, 2000 - 2001


Q: Is the prac practi tice ce of law law a right ght or a privilege? A: The prac practtice ice of law law is basi asicall cally y a privilege because it is limited to persons of good moral character with special qualifications duly ascertained and certified. However, Prof. Agpalo in his book has pointed out that the practice of law is also a right because a lawyer holds office during good behavior and he cannot be deprived of the right to practice law except for misconduct ascert ascertain ained ed and declar declared ed by judgme judgment nt of the court after observing due process.

Esse Essent ntia iall Crit Criter eria ia Dete Determ rmin inat ativ ive e Engaging in the Practice of Law:

of

1.

Habitu Habituali alityty- implie implies s customar customarily ily or habitua habituall lly y holding oneself out to the public as a lawyer 2. Comp ompens ensati ation- implies that one must have pres presen ente ted d hims himsel elff to be in the acti active ve practice and that his professional services are available to the public for compensation, as a source of his livelihood or in consideration of his said services. 3. Applicati Application on of of law, law, legal principe, principe, practice, practice, or procedure which calls for legal knowledge, training and experience is within the term “practice of law” 4. Attorn Attorney ey – client client relati relations onship hip The practice of law is not a natural, property or constitutional right but a mere privilege. But while the practice of law is a privilege, a lawyer cannot be prevented from practicing law except for valid reasons, the practice of law not being a matter a state’s grace or favor. 1. He holds holds offic office e duri during ng good good behav behavio ior r and can only be deprived of it for miscon misconduc ductt ascert ascertain ained ed and declar declared ed by judgment of the court after opportunity to be heard heard has been been afford afforded ed him. him. The state cannot exclude an attorney from the practice of law law in a mann manner er or for for reas reason ons s that that cont contra rave vene ne the due due proc proces ess s or equa equall protec protectio tion n clause clause of the Const Constit ituti ution. on. No court, including a court-martial, can deny an attorney the right to appear before it for a party party liti litiga gant nt,, in the the abse absenc nce e of a vali valid d statutory statutory limitatio limitation n or ground ground disqualif disqualifying ying him him to pract actice. A qua quasi-judicial or admini administr strati ative ve agency agency cannot cannot restri restrict ct his priv privil ileg ege e to prac practi tice ce law law by impo imposi sing ng conditions that amount to discrimination, nor limit such privilege by requiring the passing of an exam examin inat atio ion n that that is not not expr expres essl sly y sanc sancti tion oned ed by law law as a prer prereq equi uisi site te to appearing before such agency. 2. The The prac practi tice ce of law law is is in the the natur nature e of a right which cannot be lightly or capriciously restricted or taken away from him.

Private Private Practice Practice – is more more than than an isolat isolated ed appe appear aran ance ce for for it cons consis ists ts of freq freque uent nt or customary actions, a succession of acts of the same same kind. kind. An isola isolate ted d appe appear aran ance ce may, may, however, amount to practice in relation to the rule prohibiting some persons from engaging in the exercise of the legal profession. The fact that that the service service is render rendered ed before a quasi-judicial or administrative agency and not before before the court court is immat immateri erial al to the question as to whether the service constitutes practi practice ce of law becaus because e the charac character ter of the service, and not the place where it is performed, is the the deci decisi sive ve fact factor or dete determ rmin inat ativ ive e of that that question

Powe Powerr to Regu Regula late te the the Prac Practi tice ce of Law The prac practi tice ce of law is a pri privil vilege ege impressed with public interest.

Reason: Lawyer owes duties not only to his client but also to the court, to his brethren in the profession and to the public, and takes part in one of the most important functions of the statethe administration of justice. The Consti Constitut tution ion vests vests this this power power of control and regulation in the Supreme Court. Court . The power of the SC to regulate the practice of law includes: 1. The author authorit ity y to define define the term term 2. Prescribe the qualifications of a candidate to and the subjects of the bar examinations 3. Decide Decide who who wil willl be admi admitt tted ed to practi practice ce 4. Disc Discip ipli line ne,, suspen suspend d or disbar disbar any any unfi unfitt and unworthy member of the bar 5. Rein Reinst stat ate e any any disb disbar arre red d or inde indefi fini nite tely ly suspended attorney 6. Orda Ordain in the integ integra rati tion on of the the Phil Philip ippi pine ne Bar 7. Puni unish for conte ontem mpt any perso erson n for unauthorized practice of law 8. Exerci Exercise se overa overall ll super supervis vision ion of of the legal legal profession 9. Exerc xercis ise e any any othe otherr pow power as may be necessary necessary to elevate elevate the standards standards of the bar and preserve its integrity. On the other hand, the LEGISLATURE, LEGISLATURE , in the the exer exerci cise se of its its POLI POLICE CE POWE POWER R may, may, however, enact laws regulating the practice of law to protect the public and promote the public welfare. But the legislature MAY NOT pass a law that will control the SC in the performance of its function to decide who may enjoy the privilege of prac practi tici cing ng law law and and any any law law of that that kind kind is unco uncons nsti titu tuti tion onal al as an inva invali lid d exer exerci cise se of legislative power.

2 Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee



Q: Is the prac practi tice ce of law law a right ght or a privilege? A: The prac practtice ice of law law is basi asicall cally y a privilege because it is limited to persons of good moral character with special qualifications duly ascertained and certified. However, Prof. Agpalo in his book has pointed out that the practice of law is also a right because a lawyer holds office during good behavior and he cannot be deprived of the right to practice law except for misconduct ascert ascertain ained ed and declar declared ed by judgme judgment nt of the court after observing due process.

Esse Essent ntia iall Crit Criter eria ia Dete Determ rmin inat ativ ive e Engaging in the Practice of Law:

of

1.

Habitu Habituali alityty- implie implies s customar customarily ily or habitua habituall lly y holding oneself out to the public as a lawyer 2. Comp ompens ensati ation- implies that one must have pres presen ente ted d hims himsel elff to be in the acti active ve practice and that his professional services are available to the public for compensation, as a source of his livelihood or in consideration of his said services. 3. Applicati Application on of of law, law, legal principe, principe, practice, practice, or procedure which calls for legal knowledge, training and experience is within the term “practice of law” 4. Attorn Attorney ey – client client relati relations onship hip The practice of law is not a natural, property or constitutional right but a mere privilege. But while the practice of law is a privilege, a lawyer cannot be prevented from practicing law except for valid reasons, the practice of law not being a matter a state’s grace or favor. 1. He holds holds offic office e duri during ng good good behav behavio ior r and can only be deprived of it for miscon misconduc ductt ascert ascertain ained ed and declar declared ed by judgment of the court after opportunity to be heard heard has been been afford afforded ed him. him. The state cannot exclude an attorney from the practice of law law in a mann manner er or for for reas reason ons s that that cont contra rave vene ne the due due proc proces ess s or equa equall protec protectio tion n clause clause of the Const Constit ituti ution. on. No court, including a court-martial, can deny an attorney the right to appear before it for a party party liti litiga gant nt,, in the the abse absenc nce e of a vali valid d statutory statutory limitatio limitation n or ground ground disqualif disqualifying ying him him to pract actice. A qua quasi-judicial or admini administr strati ative ve agency agency cannot cannot restri restrict ct his priv privil ileg ege e to prac practi tice ce law law by impo imposi sing ng conditions that amount to discrimination, nor limit such privilege by requiring the passing of an exam examin inat atio ion n that that is not not expr expres essl sly y sanc sancti tion oned ed by law law as a prer prereq equi uisi site te to appearing before such agency. 2. The The prac practi tice ce of law law is is in the the natur nature e of a right which cannot be lightly or capriciously restricted or taken away from him.

Private Private Practice Practice – is more more than than an isolat isolated ed appe appear aran ance ce for for it cons consis ists ts of freq freque uent nt or customary actions, a succession of acts of the same same kind. kind. An isola isolate ted d appe appear aran ance ce may, may, however, amount to practice in relation to the rule prohibiting some persons from engaging in the exercise of the legal profession. The fact that that the service service is render rendered ed before a quasi-judicial or administrative agency and not before before the court court is immat immateri erial al to the question as to whether the service constitutes practi practice ce of law becaus because e the charac character ter of the service, and not the place where it is performed, is the the deci decisi sive ve fact factor or dete determ rmin inat ativ ive e of that that question

Powe Powerr to Regu Regula late te the the Prac Practi tice ce of Law The prac practi tice ce of law is a pri privil vilege ege impressed with public interest.

Reason: Lawyer owes duties not only to his client but also to the court, to his brethren in the profession and to the public, and takes part in one of the most important functions of the statethe administration of justice. The Consti Constitut tution ion vests vests this this power power of control and regulation in the Supreme Court. Court . The power of the SC to regulate the practice of law includes: 1. The author authorit ity y to define define the term term 2. Prescribe the qualifications of a candidate to and the subjects of the bar examinations 3. Decide Decide who who wil willl be admi admitt tted ed to practi practice ce 4. Disc Discip ipli line ne,, suspen suspend d or disbar disbar any any unfi unfitt and unworthy member of the bar 5. Rein Reinst stat ate e any any disb disbar arre red d or inde indefi fini nite tely ly suspended attorney 6. Orda Ordain in the integ integra rati tion on of the the Phil Philip ippi pine ne Bar 7. Puni unish for conte ontem mpt any perso erson n for unauthorized practice of law 8. Exerci Exercise se overa overall ll super supervis vision ion of of the legal legal profession 9. Exerc xercis ise e any any othe otherr pow power as may be necessary necessary to elevate elevate the standards standards of the bar and preserve its integrity. On the other hand, the LEGISLATURE, LEGISLATURE , in the the exer exerci cise se of its its POLI POLICE CE POWE POWER R may, may, however, enact laws regulating the practice of law to protect the public and promote the public welfare. But the legislature MAY NOT pass a law that will control the SC in the performance of its function to decide who may enjoy the privilege of prac practi tici cing ng law law and and any any law law of that that kind kind is unco uncons nsti titu tuti tion onal al as an inva invali lid d exer exerci cise se of legislative power.




WHO MAY PRACTICE LAW? Any person heretofore duly admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions of this rule, and who is in good and regular standing, is entitled to practice law. (Sec. 1, Rule 138 )

Basic Basic Require Requiremen ments ts for All Applican Applicants ts for Admission to the Bar 1. Citi Citize zen n of the Phili Philipp ppin ines es becau because se he is required to maintain allegiance to the Republic of the Philippines, support its Constitution and obey its laws; 2. At leas leastt 21 years years of age age becau because se matu maturi rity ty and discretion are required in the practice of law; 3. Of good moral character because use the lawyer, being an officer of the court, is a vital part of the administration of justice and unless he is possessed of good moral character he may not prosecut prosecute e the ends of justice justice to his own personal ends. Well-settled is the rule that good moral character is not only a condition precedent to an admission to the legal profession but it must also remain extant in order to maintain one’s good standing in that exclusive and honored fraternity. (Villanueva Villanueva vs. Sta. Ana, 245 SCRA 707 ) 4. Resi Reside dent nt of the the Phil Philip ippi pine nes s beca becaus use e his his duties to his client and to the court will require that he be readily accessible and available; 5. Must Must prod produc uce e befo before re the the SC sati satisf sfac acto tory ry evidence of good moral character 6. No char charge ges s agai agains nstt him, him, invo involv lvin ing g mora morall turpitude, have been filed or are pending in any court in the Phil. (Sec. 2, Rule 138) 7. Must Must have ave compl ompliied with the aca academi demic c requirements

Academic Candidates

Requirements

for

1. Must Must have have alrea already dy earned earned a Bache Bachelo lor’ r’s s Degree in Arts or Sciences (Pre-law) 2. Law Law Cour ourse – comp complleted eted cours ourses es in Civil Law, Commercial Law, Remedial Law, Criminal Law, Public and Int’l Law, Political Law, Labor and Social Legislation, Medical Juris Jurispr prud udenc ence, e, Taxa Taxati tion on,, Lega Legall Ethi Ethics cs.. (Sec. 5 and 6, Rule 138 ) 8. Pass Pass the the bar bar exa exami mina nati tion ons s Moral Turpitude Turpitude – imports an act of baseness, vileness or depravity in the duties which one person owes to another or to society in general which which is contr contrary ary to the usual accepted accepted and customary rule of right and duty which a person should should follow. follow. The questi question on as to whether whether an offe offens nse e invo involv lves es mora morall turp turpit itud ude e is for for the the Supreme Court to decide.

Require Requiremen ments ts Before Before a Candida Candidate te Can Engage in the Practice of Law I. He must have been admitted admitted to the Bar Bar a. Furnishing satisfying proof of educational, moral and other classification b. Passi assing ng the bar bar c. Taking Taking the Lawyer Lawyer’s ’s Oath Oath before before the SC A lawyer’s oath signifies that the lawyer in taking such an oath accepts and affirms his ethical obligations in the performance of his duties as a lawyer and signifies likewise his awareness of his responsibilities that he assumes by his admission to the legal profession. d. Signi Signing ng the Att Attorn orney’ ey’s s Roll Roll and recei receivin ving g from from the Cler Clerk k of Court Court of the the SC a Certificate of the license to practice II. After his admission to the bar, a lawyer must remain remain in good and regular standing, which is a continuing requirement for the practice of law. This means that he must must a. Remain a member of the IBP (membership therein by every attorney is made compulsory) b. Regula Regularly rly pay all all IBP IBP memb members ership hip dues dues and other lawful assessments, as well as the annual privilege tax c. Faithf Faithfull ully y observ observe e the rule rules s and ethi ethics cs of the legal profession and d. Be continually subject to judicial disciplinary control

Privileges of Attorney: 1. Has Has the privi privile lege ge and right right to to practi practice ce law during during good good behavi behavior or before before any judicial, quasi-judicial, or administrative tribunal. 2. He has has the pri privi vile lege ge as the the firs firstt one to to sit in judgment on every case, to set the judicial machinery machinery of his duty. 3. Enjo Enjoys ys the presu presump mpti tion on of regul regular arit ity y in the discharge of his duty. 4. He is is immun immune, e, in in the perfor performan mance ce of his obligation to his client, from liability to a thir third d pers person on inso insofa farr as he does does not not materially depart from his character as a quasi-judicial officer. 5. His His stat statem emen ent, t, if rele releva vant nt,, pert pertin inen entt or material to the subject of judicial inquiry are absolutel absolutely y privilege privileged d regardless regardless of thei theirr defa defama mato tory ry teno tenorr and and of the the presence of malice.

Other Privileges: 1. The The passi passing ng of the the bar exam examin inat atio ions ns is equivalent to a first grade civil service eligibility for any position in the classified service in the government the duties of which require knowledge of law.




2. Second grade civil service eligibility for any other government position which does not prescribe proficiency in law as a qualification.

FOUR-FOLD DUTIES OF A LAWYER a.

Court- respect or defend against criticisms, uphold authority and dignity, obey order and processes, assist in the administration of justice. b. Bar- candor, fairness, courtesy and truthfulness, avoid encroachment in the business of other lawyers, uphold the honor of the profession. c. Client- entire devotion to client’s interest. d. Public- should not violate his responsibility to society, exemplar for uprighteousness, ready to render legal aid, foster social reforms, guardian of due process, aware of special role in the solution of special problems and be always ready to lend assistance in the study and solution of social problems.

honor and reputation of a party or witness, unless required by the justice of the cause with which he is charged 7. Not to encourage either the commencement or the continuance of an action or proceeding, or delay any man’s cause, from any corrupt motive or interest 8. Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed 9. In the defense of a person accused of crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits to the end that no person may be deprived of life or liberty, but by due process of law.

The Primary Characteristics which Distinguish the Legal Profession from Business

1. Public duty – consists of his obligation to obey the law, aid in the administration of justice or cooperate with it whenever justice would otherwise be imperiled, uphold the honor and dignity of the court and respect its authority. 2. Private duty- refers to his obligation to faithfully, honestly, and conscientiously represent the interest of his client. 3. Personal duty- what he owes to himself.

1. Legal Profession is a duty of public service 2. A relation, as an “officer of the court”, to the administration of justice involving thorough sincerity, integrity and reliability 3. A relation to clients with the highest degree of fiduciary 4. A relation to the 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

Duties of a Lawyer Rule 138, Sec. 20

Non-Lawyers who are Authorized to Appear in Court

Classification of Duties of a Lawyer:

1. To maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines 2. To observe and maintain the respect due to the courts of justice and judicial officers 3. To counsel and maintain the respect due to the courts of justice and judicial officers 4. To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law 5. To maintain inviolate the confidence and at every peril to himself, to preserve the secrets in connection with his client and to accept no compensation in connection with his client’s business except from him or with his knowledge and approval 6. To abstain from all offensive personality and to advance no fact prejudicial to the

General Rule: Only those who are licensed to practice law can appear and handle cases in court. Exceptions: 1. Before the MTC - a party may conduct his case or litigation in person with the aid of an agent or friend appointed by him. (Sec. 34, Rule 138 ) 2. Before any court – a party may conduct his litigation personally. But he gets someone to aid him and that someone must be an authorized member of the Bar (Sec. 34, Rule 138). He is bound by the same rules in conducting the trial of his case. He cannot, after judgment, claim that he was not properly represented. 3. In a criminal case before the MTC – in a locality where a duly licensed member of the Bar is not available, the judge may appoint a non-lawyer who is a resident of that province, of good repute for probity and ability to the accused in his defense. (Sec. 7, Rule 116 )

4 Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee



4.

5.

6.

7.

−

A law student who has successfully completed his 3rd yr. Of the regular 4 yr. Prescribed law curriculum and is enrolled in a recognized law school’s clinical legal education program approved by the SC – may appear without compensation in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to represent indigent clients accepted by the Legal Clinic of the school. (Sec. 1, Rule 138-A) The student shall be under direct supervision and control of a member of the IBP duly accredited by the law school. (Sec. 2 ) Under the Labor Code – non-lawyers may appear before the NLRC or any Labor Arbiter if they (a) represent themselves; (b) represent their organization or members thereof ( Art. 222, PD 442 ) A non-lawyer may represent a claimant before the Cadastral Court (Sec. 9, Act. No. 2259) Any person appointed to appear for the government of the Philippines in accordance with law (Sec. 33, Rule 138 )

Reasons: 1. Nature of the privilege and on the confidential and trust relation between attorney and client. 2. A corporation cannot perform the conditions required for membership in the bar, such as the possession of good moral character and other special disqualifications, the taking of an oath and becoming an officer of the court, subject to its discipline, suspension or removal. 3. The relation of trust and confidence cannot arise where the attorney is employed by a corporation to practice for it, his employer and he owing, at best, a secondary and divided loyalty to the clientele of his corporate employer. 4. The intervention of the corporation is destructive of that confidential and trust relation and is obnoxious to the law.

Partnership with Non-Lawyers Void

A: YES. Section 34, Rule 138 of the Revised Rules of Court provides as follows: By whom litigation conducted.--In the court of justice of the peace a party may conduct his litigation in person with the aid of an agent or friend appointed by him for that purposes, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney and his appearance must be either personal or by a duly authorized member of the bar.

Q: A and B, both lawyers, and C, a certified public accountant, in order to enhance their respective practice, decided to pool their resources together and establish a partnership for the combined purposes of law and accounting under the firm name of A, B, C and Associates. Is the proposed partnership allowed? A: NO. In the formation of partnership for the practice of law, no person should be admitted or held out as a practitioner or member who is not a member of the legal profession duly authorized to practice, and amenable to professional discipline. Partnerships between lawyers and members of other professions or nonpartnership’s employment consists of the practice of law.

Practice by Corporation It is well-settled that a corporation CANNOT engage in the practice of law. It may, however, hire an attorney to attend to and conduct its own legal business or affairs. It is not unusual for a big corporation to hire a staff of lawyers as its in-house counsel, pay them regular salaries, rank them in its table of organization, and otherwise treat them like its other officers and employees. But it cannot practice law directly or indirectly by employing a lawyer to practice for it or to appear for others for its benefit.

Is pro se practice allowed in the Q: Philippines? Explain.

Right of Himself

Party

to

Represent

Civil Cases: An individual litigant has the right to conduct his litigation personally. Criminal Cases: Involving grave and less grave offenses, an accused who is a layman must always appear by 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. By a Juridical Person: A juridical person must always appear in court by a duly licensed member of the bar, except in the municipal trial court where it may be represented by its agent or officer who need not be a lawyer.

Persons authorized to represent the Government Any official or other person appointed or designated in accordance with law to appear for the government of the Philippines or any of its officials shall have all the rights of a duly authorized member of the bar to appear in any




case in which the government has an interest, direct or indirect, or in which such official is charged in his official capacity.

Limitations on Appearance Lawyers Before the Courts 1.

2. 3.

of

Non-

He should confine his work to nonadversary contentions. He should not undertake purely legal work, such as the examination or cross-examination of witnesses, or the presentation of evidence. Services should not be habitually rendered. Should not charge or collect attorney’s fees. (PAFLU vs. Binalbagan Isabela Sugar Co. 42 SCRA 302 )

Public Officials Who Cannot Practice Law in the Philippines 1. Judges and other officials or employees of the superior court 2. Officials and employees of the Office of the Solicitor General 3. Government Prosecutors 4. President, Vice-President, members of the Cabinet, their deputies and assistants 5. Chairmen and members of the Constitutional Commissions 6. Ombudsman and his deputies 7. Governors, city and municipal mayors 8. Those who, by special law are prohibited from engaging in the practice of their legal profession

congressman, the office of an attorney being originally of agency, and because he will, by such act, be appearing in court or quasi-judicial or administrative body in violation of the constitutional restriction. “He cannot do indirectly what the Constitution prohibits directly”. (In re: David 93 PHIL 461)

Restrictions in the Practice of Law of the Members of the Sanggunian Members of the Sanggunian may engage in the practice of law EXCEPT in the following: 1. They shall not appear as counsel before any court in any civil case wherein a local government unit or any office, agency or instrumentality of the government is the adverse party 2. They shall not appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office 3. They shall not collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official. (Sec. 90, R.A. 7160 ) 4. Use property and personnel of the government except when the Sanggunian member concerned is defending the interest of the government

Remedies Against Unauthorized Practice Public Officials with Restrictions in the Practice of Law 1. Senators and Members of the House of Representatives 2. Members of the Sanggunian 3. Retired Justice or Judge 4. Civil Service officers or employees without permit from their respective department heads (Noriega vs. Sison 125 SCRA 293)

Restrictions in the Practice of Law of Members of Legislature A lawyer-member of the legislature is only prohibited from appearing as counsel before any court of justice, electoral tribunals or quasi judicial and administrative bodies The word “appearance” includes not only arguing a case before any such body but also filing a pleading on behalf of a client as “by simply filing a formal motion, plea or answer”. (Ramos vs. Manalac 89 PHIL 270 ) Neither can he allow his name to appear in such pleading by itself or as part of a firm name under the signature of another qualified lawyer because the signature of an agent amounts to signing of a non-qualified senator or

1. 2. 3. 4.

Petition for Injunction Declaratory Relief Contempt of Court Disqualification and complaints for disbarment 5. Criminal complaint for estafa against a person who falsely represented to be an attorney to the damage of a party

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




TERMS TO REMEMBER: Bar and Bench – “Bar” refers to the whole body of attorneys and counselors collectively, the members of the legal profession: “Bench” denotes the whole body of judges. Lawyer – this is the general term for a person trained in the law and authorized to advice and represent others in legal matters Trial Lawyer – one who personally handles cases in court, administrative agencies of boards which means engaging in actual trial work, either for the prosecution or for the defense of cases of clients. Practising Lawyer – one engaged in the practice of law. “All trial lawyers are practising lawyers, but not all practising lawyers are trial lawyers. Client – one who engages the services of a lawyer for legal advice or for purposes of prosecuting or defending a suit in behalf and usually for a fee. Attorneys-At-Law – that class of persons who are licensed officers of the courts empowered to appear, prosecute and defend, and upon whom peculiar duties, responsibilities and liabilities are developed by law as a consequence. Counsel/Attorney de oficio – is an attorney appointed by the court to defend an indigent defendant in a criminal action. In a criminal action, if the defendant appears without an attorney, he must be informed by the court that it is his right to have an attorney before being arraigned and must be asked if he desires the aid of an attorney. If he desires and is unable to employ an attorney, the court must assign a counsel de oficio to defend him. The appointment of a counsel de oficio in that instance is a matter of right on the part of the defendant. On appeal in a criminal case, the appellate court must also appoint a counsel de oficio if, as shown by the certificate of the clerk of court of the trial court, a defendant (a) is confined in prison, (b) without means to employ an attorney, (c) desires to be defended de oficio. Atty. ad hoc- a person named appointed by the court to defend an absentee defendant in the suit in which the appointment is made. Attorney of record- is the attorney whose name is entered in the records of an action or suit as the lawyer of a designated party thereto. Of Counsel – to distinguish them from attorneys of record, they are “associate attorneys”

Atty. in fact- is simply an agent whose authority is strictly limited by the instrument appointing him. His authority is provided in a special power of attorney or general power of attorney or letter of attorney. He is not necessarily a lawyer. Lead Counsel – the counsel on either side of a litigated action who is charged with the principal management and direction of a party’s case, as distinguished from his juniors or subordinates. House Counsel – one who acts as attorney for business though carried as an employee of that business and not as an independent lawyer. Pro Se - an appearance by a lawyer in his own behalf Notary Public- public officers whose duty is to attest to the genuineness of any deed or writing in order to render them available as evidence of the facts stated therein, and who is authorized by statute to administer various oaths. Amicus Curiae- is an experienced and impartial attorney invited by the court to appear and help in the disposition of the issues submitted to it. It implies friendly intervention of counsel to call the attention of the court to some matters of law or facts which might otherwise escape its notice and in regard to which it might go wrong. An amicus curiae appears in court not to represent any particular party but only to assist the court. Amicus Curiae par excellence – bar associations who appear in court as amici curiae or friends of the court. Acts merely as a consultant to guide the court in a doubtful question or issue pending before it. Bar Association – an association of members of the legal profession like the IBP where membership is integrated or compulsory. Duty of Counsel de Officio A counsel de officio is expected to render effective service and to exert his best efforts on behalf of an indigent accused. He has as high a duty to a poor litigant as to a paying client. He should have a bigger dose of social conscience and a little less o f self-interest. Duty of Public Prosecutor The primary duty of a public prosecutor is not to convict but to see that justice is done. He owes the state, the court and the accused the duty to lay before the courts the pertinent facts at his disposal with methodical attention filling up the gaps and loopholes in evidence to the end that the court’s mind may not be tortured by doubts, the innocent may not suffer and the guilty may not escape punishment. It is as much his duty to refrain from improper methods calculated to produce wrongful conviction as it is to use legitimate




means to bring about a just one. Also, he should not hesitate to recommend to the court the accused’s acquittal if the evidence in his possession shows that the accused is innocent. Role of Private Prosecutor A private prosecutor may intervene in the prosecution of a criminal action when the offended party is entitled to indemnity and has not waived expressly, reserved or instituted the civil action for damages. There is nothing objectionable about it as long as the public prosecutor is always present at every hearing, retains control thereof, and without allowing the trial in the hands of a private prosecutor to degenerate to public prosecutor.

THE CANONS OF PROFESSIONAL RESPONSIBILITY (IN A NUT SHELL) Chapter I: The Lawyer and Society

CANON 1. 2. 3.

4. 5.

6.

Uphold the Constitution and obey the laws of the land Make legal services available in an efficient and convenient manner Use of true, honest, fair, dignified and objective information in making known legal services Participate in the improvement of the legal system Keep abreast of legal development and participate in continuing legal education program and assist in disseminating information regarding the law and jurisprudence Applicability of the CPR to lawyers in the government service

Chapter II: The Profession

Lawyer

and

the

Legal

CANON 7.

8.

9.

At all times uphold the integrity and dignity of the Profession and support the activities of the IBP Conduct himself with courtesy, fairness and candor toward his colleagues and avoid harassing tactics Not to directly or indirectly assist in the unauthorized practice of law

Chapter III: The Lawyer and the Courts

CANON 10. Owes candor, fairness and good faith to the court 11. Observe and maintain the respect due courts and judicial officers

12. Duty to assist in the speedy and efficient administration of justice 13. Rely upon the merits of his cause, refrain from any impropriety which tends to influence courts, or give the appearance of influencing the court Chapter IV: The Lawyer and the Client

CANON 14. Not refuse his services to the needy 15. Observe candor, fairness and loyalty in all his dealings and transactions with clients 16. Hold in trust all the moneys and property of his client that may come to his possession 17. Owes fidelity to clients cause and be mindful of the trust and confidence reposed in him 18. Serve client with competence and diligence 19. Represent client with zeal and within the bounds of law 20. Charge only fair and reasonable fees 21. Preserve the confidence and secrets of client even after the atty.client relation is terminated 22. Withdraw services only for good cause and upon notice

A. Important Concepts from the Code of Professional Responsibility Under Rule 1.03, a lawyer shall not for any corrupt motive or interest, encourage any suit or proceeding A lawyer shall refrain from committing barratry and ambulance chasing of cases. Barratry – offense of frequently exciting and stirring up quarrels and suits. The lawyer’s act of fomenting suits among individuals and offering his legal services to one of them Ambulance Chasing – a lawyer’s act of chasing the victims of an accident for the purpose of talking to the same victim or the latter’s relatives and offering his legal services for the filing of the case against the person who caused the accident. Ambulance Chaser – is a lawyer who haunts hospitals and visits the homes of the afflicted, officiously intruding their presence and persistently offering his service on the basis of a contingent.

Q: Distinguish “Ambulance Chasing” from “Barratry”




2. A: Both are improper and unethical acts of a lawyer. However, ambulance chasing refers more to a lawyer who instigates a victim in a motor vehicle accident to file a case. Barratry is any form of fomenting suit.

Restriction against using public office to promote private interest 1. Own, control, manage or accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law 2. Engage in the private practice of their profession unless authorized by the constitution or law, provided that such practice will not conflict or tend to conflict with their official functions. 3. Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office 4. Use or divulge confidential or classified information officially known to them by reason of their office and not available to the public.

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

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

Exceptions: 1. Writing legal articles

3. 4. 5.

6.

7.

8.

9.

10.

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

Solicitation Malpractice

of

Cases

Constitutes

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

Use of Law Firm Name In the choice of a firm name, no false, misleading or assumed name shall be used. The continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased. (Rule 3.02, Code of Professional Responsibility ). Hence, the rule abandoned the doctrine laid down in the case of In re: Sycip 92 SCRA 1 (1979). Reason: All of the partners by their joined efforts over a period of years contributed to the goodwill attached to the firm name, and this goodwill is disturbed by a change in firm name every time a partner dies. Where a partner accepts public office, he shall withdraw from the firm and his name shall be dropped from the firm name unless the




law allows him to practice concurrently.(Rule 3.02, Code of Professional Responsibility ).

Three-Fold Obligations of a Lawyer: 1. He owes it to himself to continue improving his knowledge of the law 2. He owes it to his profession to take an active interest in the maintenance of high standards of legal education 3. He owes it to the lay public to make the law a part of their social consciousness.

Lawyer’s Duties to Courts Candor, Fairness and Good Faith to Courts A lawyer shall NOT do any falsehood, nor consent to the doing of any in court; nor shall be misled, or allow the court to be misled by any article. (Rule 10.01, Code of Professional Responsibility )

Q: Is the unsolicited appearance of Atty. A in the absence of client-lawyer relationship with Mr. B unbecoming of a member of the bar? A: YES. Res ipsa loquitor. Atty. A is not only guilty of falsehood but had mislead the trial court as well when he represented himself as “counsel” of Mr. B when in fact there was no such client-lawyer relationship in the first place. And he transgressed his oath as an attorney. For Canon 10.01 of the Code of Professional Responsibility is clear. A lawyer shall NOT knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as a law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved. (Rule 10.02, Code of Professional Responsibility ) A lawyer shall observe the rules of procedure and shall NOT misuse them to defeat the ends of justice. (Rule 10.03, Code of Professional Responsibility )

Observance of Courts

Respect

Due

the

A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others. (Canon 11, Code of Professional Responsibility ) A lawyer should show respect due the court and judicial officer by appearing during the trial of a case punctually and in proper attire. A lawyer’s language should be forceful but dignified, emphatic but respectful as befitting

an advocate and in keeping with the dignity of the legal profession.

Assisting in Speedy and Efficient Administration of Justice A lawyer shall NOT appear for trial unless he has adequately prepared himself on the law and the facts of his case, the evidence he will adduce and the order of its preference. He should also be ready with the original documents for comparison with the copies. (Rule 12.01 Code of Professional Responsibility ) A lawyer shall NOT unduly delay a case, impede the execution of judgment or misuse court processes. (Rule 12.04, Code of Professional Responsibility ) The duty of a lawyer to assist in the speedy and efficient administration of justice includes the duty to refrain from talking to his witness during a break or recess in the trial while the witness is still under examination.

Avoiding impropriety that Tends to Influence the Court A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court. (Rule 13, Code of Professional Responsibility ) A lawyer shall not extend extraordinary attention or hospitality to nor seek opportunity for cultivating familiarity with judges ( Rule 13.01, Code of Professional Responsibility ) A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party. (Rule 13.02, Code of Professional Responsibility ) A lawyer shall not brook nor invite interference by another branch or agency of the government in the normal course of judicial proceedings. (Rule 13.03 Code of Professional Responsibility ) FORUM SHOPPING – the filing of repetitious suits in different courts. The penalties for the violation of Supreme Court Circular No. 28-91 , preventing forum shopping, are the following: 1. Any violation of this circular shall be a cause for the summary dismissal of the multiple petition or complaint; 2. Any willful and deliberate forum shopping by any party and his lawyer with the filing of multiple petitions or complaints to ensure favorable action shall constitute direct contempt of court; 3. The submission of a fake certification under par. 2 of the Circular shall likewise constitute contempt of court, without prejudice to the filing of a criminal action against the guilty party. The lawyer may




also be subjected proceedings.

to

disciplinary

Three Ways in which the Forum Shopping is Committed: 1. Going from one court to another in the hope of securing a favorable relief in one court, which another court has denied. 2. Filing repetitious suits or proceedings in different courts concerning the same subject matter after one court has decided the suit with finality. 3. Filing a similar case in a judicial court after receiving an unfavorable judgment from an administrative tribunal. TESTS TO DETERMINE CONFLICTING INTERESTS: 1. Will the attorney be required to contest for that which his duty to another client requires him to oppose? (Conflicting duties) 2. Will the acceptance of a new relation invite suspicion and/or actually lead to unfaithfulness or double-dealing towards another client? (Invitation of suspicion) 3. Will the attorney be called upon in his new relation to use against his first client any knowledge acquired in the previous employment? (Use of prior knowledge obtained)

INSTANCES WHEN A LAWYER IS CONSIDERED HAVING CONFLICTING DUTIES: 1. As an employee of a corporation whose duty is to attend legal affairs, he cannot join a labor union of employees in that corporation 2. As a lawyer who investigated an accident as counsel for an insurance, he cannot represent the injured person 3. As a receiver of a corporation, he cannot represent the creditor 4. As a representative of the obligor, he cannot represent the obligee 5. As a lawyer representing a party in a compromise agreement, he cannot be subsequent lawyer representing another client who seeks to nullify the agreement

DUTY OF A LAWYER TO HIS CLIENT IN CASE THERE’S CONFLICT OF INTEREST

which might influence the client in the selection of counsel. It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of facts. Within the meaning of this Canon, a lawyer represents a conflicting interests when, in behalf of one client it is his duty to contend for that which duty to another client requires him to oppose.

EFFECTS OF REPRESENTING ADVERSE INTERESTS: 1. Disqualification as counsel of new client on petition of former client. 2. Where such is unknown to, and becomes prejudicial to the interests of the new client, a judgment against such may, on that ground be set aside. 3. A lawyer can be held administratively liable through disciplinary action and may be held criminally liable for betrayal of trust. 4. The attorney’s right to fees may be defeated if found to be related to such conflict and such was objected to by the former client, or if there was a concealment and prejudice by reason of the attorney’s previous professional relationship with the opposite party.

Elements of the Prohibition against Purchasing Client’s Property in Litigation: 1. 2. 3. 4.

There is an attorney-client relationship The property is in litigation; The attorney is the counsel of record in the case; The attorney, by himself or through an agent, purchases such property during the pendency of said case (Art. 1491 of the Civil Code)

Q: Atty. X is A’s lawyer in a falsification case filed against the latter. While undergoing trial in the said criminal case, PNB foreclosed the 2hectare riceland belonging to A. The land was sold at public auction to Atty. X as the highest bidder. Did Atty. X violate the provision under the Civil Code regarding purchase of property under litigation?

A lawyer, in conferring with a prospective client shall ascertain as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client. (Rule 15.01)

A: NO. In the absence of the requisites under Art. 1491 of the Civil Code , the prohibition will not operate. In this case, the riceland was not the subject matter of litigation.

It is the duty of a lawyer at the time of retainer to disclose to the client all circumstances of his relations to the parties and any interest in connection with the controversy,

Q: Atty. X appeared as counsel for plaintiff in a damage suit. Judgment was rendered in favor of the plaintiff, and to satisfy the award, a parcel of land was levied upon which was sold at




auction sale. Plaintiff assigned one-half of his interest to Atty. X in accordance with their contingent contract of attorney’s fees. Is the assignment a violation of Art. 1491 of the Civil Code and Canon 12 prohibiting the purchase by lawyer of property under litigation? A: NO. The lot was not the subject matter of the litigation. It was acquired by the client in the execution sale. (Guevarra vs. Calalang 117 SCRA)

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

CANON 20 RULE 20.1 A lawyer should be guided by the following FACTORS IN DETERMINING HIS FEES: - The time spent and the extent of the services rendered or required; - The novelty and the difficulty of the questions involved; - The importance of the subject matter; - The skill demanded - The probability of losing other employment a result of the acceptance of the proffered case; - The customary charges for similar services and the schedule of fees of the IBP Chapter to which he belongs; - The amount involved in the controversy and the benefits resulting to the client from the service - The contingency or certainty of compensation; - The character of the employment whether occasional or established; and - The professional standing of the lawyer

TWO CONCEPTS FEES:

OF

ATTORNEY’S

1. Ordinary- it is the reasonable compensation paid to the lawyer for the legal services he had rendered the client. The basis of this compensation is the fact of employment by the client. 2. Extraordinary- an indemnity for damages ordered by the court to be paid by the losing party to the prevailing party in a litigation. The basis of this is any of the cases authorized by law and is payable not to the lawyer but to the client unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof.

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

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

ADVANTAGES OF A WRITTEN CONTRACT BETWEEN THE LAWYER AND THE CLIENT: 1.

It is conclusive as to the amount of compensation. 2. In case of unjustified dismissal of an attorney, he shall be entitled to recover from the client full compensation stipulated in the contract ( RA 636)

Attorney-Client Relationship




Q: time?

May a client dismiss his lawyer at any

A: YES. A client may dismiss his lawyer at any time with or without cause because the relationship is one of trust and confidence.

Situations when Counsel cannot Recover the Full Amount, Despite Written Contract for Attorney’s fees: 1.

Q: May a lawyer withdraw as counsel at any time?

2.

A: NO. A lawyer may withdraw as counsel only with the consent of the client and with leave of court, and only for good cause enumerated in Rule 22.01 of the Code of Professional Responsibility.

3.

The relation of attorney-client relationship is strictly personal and highly confidential and fiduciary. Necessity and public interest require that it be so.

4.

A lawyer cannot decline to represent a person for the SOLE reason of the latter’s 1. race 2. sex 3. creed 4. status in life 5. lawyer’s opinion that the said person is guilty of the charge (Legarda vs. CA 195 SCRA 418)

Q: Should a lawyer accept a losing case: (1) in a criminal case; (2) in a civil case. Explain. A: (1) YES. A lawyer may accept a losing criminal case because every accused is presumed innocent and is entitled to counsel. (2) YES. A lawyer may likewise accept a losing civil case provided that in so doing, he must not engage in dilatory tactics and must advise his client about the prospects and advantage of settling the case thru a compromise.

General Rule protecting attorney-client relationships 1. Best efforts must be exerted by the attorney to protect his client’s interest 2. The attorney must promptly account for any fund or property entrusted by or received for his client 3. An attorney cannot purchase his client’s property or interest in litigation 4. The privacy of communications shall at all times be upheld 5. An attorney cannot represent a party whose interest is adverse to that of his client even after the termination of the relation.

5.

6. 7. 8.

When the services called for were not performed as when the lawyer withdrew before the case was finished. He will be allowed only reasonable fees When there is a justified dismissal of the attorney, the contract will be nullified and payment will be on the basis of quantum meruit only. A contrary stipulation will be invalid. When the stipulated attorney’s fees are unconscionable i.e., when it is disproportionate as compared to the value of services rendered and is revolting to human conscience. When the stipulated attorney’s fees are in excess of what is expressly provided by law. When the lawyer is guilty of fraud or bad faith toward his client in the matter of his employment When the counsel’s services are worthless because of h is negligence. When contract is illegal, against morals or public policy. Serving adverse interest unless lawyer proves that it was with the consent of both parties.

KINDS OF PAYMENT WHICH MAY BE STIPULATED UPON 1. FIXED OR ABSOLUTE FEE – which is payable regardless of the result of the case. 2. CONTINGENT FEE – that is conditioned on the securing of a favorable judgment and recovery of money or property and the amount of which may be on a percentage basis. 3. A fixed fee payable PER APPEARANCE. 4. A fixed fee computed upon the NUMBER OF HOURS SPENT 5. A fixed fee base on PIECEWORK. 6. COMBINATION of any of the above.

Retainer or Employment RETAINER may refer to either of two concepts. 1. It may refer to the act of a client by which he engages the services of an attorney to render legal advice or; 2. To defend or prosecute his cause in court.

KINDS OF RETAINER AGREEMENTS: 1. General retainer – is the fee paid to a lawyer to secure h is future services as “general counsel” for any ordinary legal problem that may arise in the ordinary business of the client and referred to him for legal action. The client pays fixed retainer fees, which could be monthly or otherwise.




The fees re paid whether or not there are cases referred to he lawyer. 2. Special retainer – fee for a specific case or service rendered by the lawyer for the client. QUANTUM MERUIT - literally means as much as he is merited. In determining attorney’s fees, it means that the attorney will be paid for his services as much as he deserves, when the services are prematurely terminated by the act of either of the parties, by reason of death disability or operation of law considering the importance of the subject matter of the controversy, the extent of the services rendered, and the professional standing of a lawyer.

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

Recovery of Attorney’s Fees on the Basis of Quantum Meruit is Authorized When: 1. There is no express contract for payment of attorney’s fees agreed upon between the lawyer and the client; 2. When although there is a formal contract for attorneys fees, the fees stipulated are found unconscionable; 3. When the contract for attorney’s fees is void due to formal matter. 4. When for justifiable cause the lawyer was not able to finish the case. 5. When the lawyer and the client disregard the contract for fees. CHAMPERTOUS CONTRACT - is one where the lawyer stipulates with his client in the prosecution of the case, that he will bear all of the expenses for the recovery of things or property being claimed by the client, and the

latter agrees to pay the former a portion of the thing or property recovered as compensation. It is void for being against public policy. CONTINGENT CONTRACT 1. Contingent fee is payable in cash 2. Lawyers do not undertake to pay all expenses of litigation

CHAMPERTOUS CONTRACT 1. Payable in kind ONLY 2.Lawyers undertake to pay all expenses of litigation

3. Not prohibited

3. Void

When is a fee considered reasonable? There is no hard and fast rule which could be utilized to determine the reasonableness of attorney’s fees, it must be determined from the facts of each case. When is a fee unconscionable? The amount contracted for must be such that no man in his right senses would offer on the one hand and no honest and fair man would accept on the other.

A lawyer should avoid the filing of any case against client for enforcement of attorney’s fees EXCEPT: 1. to prevent imposition 2. to prevent injustice 3. to prevent fraud As a general rule, attorney’s fees cannot be shared to a non-lawyer. It is immoral

Instances when a lawyer may divide a fee for legal services with persons not licensed to practice law: 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 legal business of a deceased lawyer; 3. where a lawyer or law firm includes nonlawyer employees in retirement plan, even if the plan is based in whole or in part on the profit sharing agreement

EFFECT OF NULLITY OF CONTRACT ON THE RIGHT TO ATTORNEY’S FEES: 1.

2.

if the nullification is due to the illegality of its object , the lawyer is precluded from recovering; if the nullity is due to a formal defect or because the court has found the amount to




be unconscionable, the lawyer may recover for any services rendered based on quantum meruit.

An independent civil action to recover attorney’s fees is necessary where: 1. The main action is dismissed or nothing is awarded 2. The court has decided that the main litigation has no jurisdiction over the action of has already lost it 3. The person liable for attorney’s fees is not a party to the main action 4. The court reserved to the lawyer the right to file a separate civil suit for recovery of attorney’s fees 5. The subject services are not connected with the subject litigation 6. The judgment debtor has fully paid all of the judgment proceeds to the judgment creditor and the lawyer has not taken any legal step to have his fees paid directly to him from the judgment proceeds.

COMPENSATION TO WHICH A LAWYER IS ENTITLED DEPENDING ON HIS CAPACITY 1. Counsel de Parte - He is entitled to a reasonable attorney’s fees agreed upon or in the absence thereof, on quantum meruit basis. 2. Counsel de Oficio - The counsel may not demand from the accused attorney’s fees even if he wins the case. He may however collect from the government funds if available based on the amount fixed by the court. 3. Amicus Curiae attorney’s fees.

He is not entitled to

Presumption of Authority An attorney is presumed to be properly authorized to represent any cause in which he appears in all stages of the litigation and no written authority is required to authorize him to appear. The presumption is a strong one. A mere denial by a party that he has authorized an attorney to appear for him, in the absence of compelling reason, is insufficient to overcome the presumption especially when the denial comes after the rendition of an adverse judgment.

Ratification of Unauthorized Appearance 1. EXPRESS: categorical assertion by client that he has authorized a lawyer or that he confirms his authorization to represent him in the case.

2. IMPLIED: where party with knowledge of fact that a lawyer has been representing him in a case, accepts benefits of representation or fails to promptly repudiate the assumed authority.

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

Q: State the rule with respect to the authority of an attorney to compromise his client’s case. The attorney, as a general rule, has no A: authority to compromise his client’s case. This is so because the client, even if represented by counsel, retains exclusive control over the subject matter of the litigation. The client can, of course, authorize his lawyer to compromise his case, and the settlement made by the lawyer will bind his client. An exception to the rule is the case where the lawyer is confronted with an emergency and prompt, urgent action is necessary to protect the interest of his client and there is no opportunity for consultation with him.

PRIVILEGE COMMUNICATION REQUISITES: 1. There exists an attorney and client relationship or a kind of consultancy relationship with a prospective client. That is, legal advise is what is sought; 2. The communication was made by the client to the lawyer in the course of the lawyer’s professional employment; and 3. The communication must be intended to be confidential. (Uy Chico vs. Union Life Association Society, 29 Phil 163)

PURPOSES OF THE RULE PRIVILEGE COMMUNICATION

ON

1.

To encourage a client to make a full disclosure of the facts of the case to his counsel without fear; 2. To allow the lawyer freedom to obtain full information from his client.

CHARACTERISTICS OF THE ATTORNEYCLIENT PRIVILEGE: 1.

A-C privilege where legal advice professionally sought from an attorney.


is



2.

The client must intend the above communication be confidential. 3. A-C privilege embraces all forms of communication and action. 4. As general rule, A-C privilege also extends to the attorney’s secretary, stenographer, clerk or agent with reference to any fact required in such capacity. 5. The above duty is perpetual and is absolutely privileged from disclosure.

EXCEPTIONS TO THE A-C PRIVILEGE: 1. There is consent or waiver of client. 2. Such is required by law. 3. Such is made to protect the lawyer’s rights (i.e., to collect his fees or defend himself, his employees or associates or by judicial action). 4. When such communications are made in contemplation of a crime or the perpetuation of a fraud.

Q: Specify not more than five (5) instances when a lawyer may testify as a witness in a case when he is handling for a client. A: (1) On formal matters, such as the mailing, authentication or custody of an instrument and the like; (2) Acting as an expert on his fee; (3) Acting as an Arbitrator; (4) Deposition; (5) On substantial maters 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.

Q: Specify not more than five (5) instances when a lawyer may not testify as a witness in a case which he is handling for a client. A; (1) That which adversely affects any lawful interest of the client with respect to which confidence has been reposed on him; (2) Having accepted a retainer, he cannot be a witness against his client; (3) He cannot serve conflicting interests; (4) When he is to violate the confidence of his client; (5) When as an attorney, he is to testify on the theory of the case.

Duty to disclose matters material to employment It is the duty of a lawyer to disclose and explain to a prospective client all circumstances of his relations to the parties and any interest in or connection with the controversy, which in his honest judgment might influence the client in the selection of counsel. The disclosure is more for

the protection of the lawyer than that of the client.

Duty to advice candidly As officers of the court, counsels are under obligation to advise their clients against making untenable and inconsistent claims. The counsel should inform his client and dissuade him from filing the case if totally devoid of merit. If he finds that his client’s cause as fairly meritorious and ripe for judicial adjudication, he should refrain from making bold and confident assurances of success.

Duty to comply with client’s lawful request A lawyer should endeavor to seek instruction from his client on any substantial matter concerning the litigation, which may require decision on the part of the client, such as whether to compromise the case or to appeal an unfavorable judgment. He should give his client sound advice on any such and similar matters and comply with the client’s lawful instructions relative thereto. He should resist and should never follow any unlawful instruction of his client.

Duty to restrain impropriety

client

from

A lawyer should use his best efforts to restrain and to prevent his client from doing those things which he himself ought not to do, particularly with reference to the conduct toward the court, judicial officer, witness and suitor and if the client persists in such wrong doing, the lawyer should terminate their relation.

Duty of Lawyer in case of knowledge of client’s fraud He must promptly call upon the client to: 1. Rectify the same and failing which 2. He shall terminate their relationship with such client in accordance with the Rules of Court.

Protection of client’s interest The attorney’s duty to safeguard the client’s interests commences from his retainer until his effective release from the case or the final disposition of the whole subject matter of the litigation. During that period he is expected to take such reasonable steps and such ordinary care as his client’s interests may require.

Preparation of pleadings A lawyer should prepare his pleading with great care and circumspection. He should refrain from using abrasive and offensive language, for it merely weakens rather than strengthens the force of legal reasoning and detracts from its persuasiveness. In preparing a complaint for damages, counsel for plaintiff should allege and state the specific amounts




claimed not only in the body of the complaint but also in the prayer, so that the proper docket fees can be assessed and paid.

Interviewing witnesses A lawyer may interview a witness in advance of trial to guide him in the management of the litigation. A lawyer may also interview a prospective witness for the opposing side in any civil or criminal action without the consent of the opposing counsel or party. A lawyer may properly obtain statements from witnesses whose names were furnished by the opposing counsel or interview the employees of the opposing party even though they are under subpoena to appear as witnesses for the opposite side. Duty to keep client fully informed He should notify his client of an adverse decision while within the period to appeal to enable his client to decide whether to seek an appellate review. He should communicate with him concerning the withdrawal of appeal with all its adverse consequences. The client is entitled to the fullest disclosure of the mode or manner by which his interest is defended or why certain steps are taken or omitted. Duty when the accused intends to plead guilty A PLEA OF GUILTY is an admission by the accused of his guilt of crime as charged in the information and of the truth of the facts alleged, including the qualifying and aggravating circumstances. It is the duty of the defense counsel when his client desires to enter a plea of guilty to: 1. Fully acquaint himself with the records and surrounding circumstances of the case 2. Confer with the accused and obtain from him his account of what had happened 3. Advise him of his constitutional rights 4. Thoroughly explain to him the import of a guilty plea and the inevitable conviction that will follow 5. See to it that the prescribed procedure which experience has shown to be necessary to the administration of justice is strictly followed and disclosed in the court records. Doctrine of Imputed Knowledge - is based on the assumption that an attorney, who has notice of matter affecting his client, has communicated the same to his principal in the course of professional dealings. The doctrine applies regardless of whether or not the lawyer actually communicated to the client what he learned in his professional capacity, the attorney and his client being one judicial person.

Exceptions to the rule that notice to counsel is notice to client: 1. If strict application might foster dangerous collusion to the detriment of justice. 2. Service of notice upon party instead of upon his attorney is ordered by court. 3. Notice of pre trial is required to be served upon parties and their respective lawyers. 4. In appeal from the lower court to the RTC, upon docketing of appeal. Mistakes or negligence of lawyer binding upon client Client is bound by attorney’s conduct, negligence and mistake in handling case or in management of litigation and in procedural technique, and he can not be heard to complain that result might have been different and his lawyer proceeded differently. Exceptions to rule that client bound by lawyer’s mistake or negligence 1. Where adherence thereto results in outright deprivation of client’s liberty or property or where interest of justice so requires. 2. Where error by counsel is purely technical which does not affect substantially client’s cause. 3. Ignorance, incompetence or inexperience of lawyer is so great and error so serious that client, who has good cause prejudiced and denied a day in court. 4. Gross negligence of lawyer. 5. Lack of acquaintance with technical part of procedure. Right to decline employment; exceptions General Rule: A lawyer is not obliged to act as legal counsel for any person who may wish to become his client. He has the right to decline employment. Exceptions: 1. A lawyer shall not refuse his services to the needy. 2. He shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life or because of his own opinion regarding the guilt of said person. 3. He shall not decline, except for serious and sufficient cause like (1) if he is not in a position to carry out effectively or competently; (2) if he labors under a conflict of interest between him and the prospective client or between a present and prospective client.




Duty to decline employment A lawyer should decline professional employment even though how attractive the fee offered may be if its acceptance will involve: 1. A violation of any of the rules of the legal profession 2. If it will nullify a contract which he prepared. 3. He should not accept employment as an advocate in any matter in which he had intervened while in the government service. 4. He should not accept employment the nature of which might easily be used as a means of advertising his professional services or his skill. 5. He should not accept employment from a collection agencywhich solicits business to collect its claims. 6. He should not accept employment in any matter in which he knows or has reason to believe that he or his partner will be an essential witness for the prospective client.

A counsel can WITHDRAW his services under the following circumstances: 1.

2.

3.

4.

5.

6.

7. 8.

When the client pursues an illegal or immoral course or conduct in connection with the case he is handling. When the client insists that the lawyer pursue conduct violative of these Canons and Rules. When his inability to work with co-counsel will not promote the best interest of the client. When the mental or physical condition of the lawyer renders it difficult for him to carry on the employment effectively. When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement. The lawyer may withdraw from the case if he finds out that he might be appearing for a conflicting interest. In all the above cases, the lawyer must file a written motion with an express consent of his client and must wait for the approval of the court. When the lawyer is elected or appointed to public office. Other similar cases (Canon 22 Rule 22.01)

Duties of a Discharged Lawyer or One Who Withdraws

him out of the judgment for the payment of money and executions issued in pursuance thereof in the particular suit. REQUISITES: 1. Existence of a client-lawyer relationship; 2. The attorney has rendered services; 3. Favorable judgment secured by the counsel for his client which judgment is a money judgment; 4. The attorney has a claim for attorney’s fees or advances 5. Noting into the records of the case through the filing of an appropriate motion of the statement of the lawyer’s claim for attorney’s fee with copies furnished to the client and adverse party. Comparative Distinctions Retaining Lien and Charging Lien Point of Distinction 1. Nature

2. Basis

3. Coverage

4. Effect

1. Immediately turn-over all papers and property to which the client is entitled; 2. To cooperate with the succeeding lawyer in the orderly transfer of the case.

ATTORNEY’S LIEN CHARGING LIEN-is an equitable right to have the fees and lawful disbursements due a lawyer for his services in a suit secured to

5. Notice

6.

Applica-

Retaining Lien Passive Lien. It cannot be actively enforced. It is a general lien. Lawful possession of papers, documents, property belonging to the client. Covers papers, documents, and properties in the lawful possession of the attorney by reason of his professional employment.

Charging Lien Active Lien. It can be enforced by execution. It is a special lien.

As soon as the attorney gets possession of the papers, documents, or property. Client need not be notified to make it effective. May be

As soon as the claim for attorney’s fees had been entered into the records of the case. Client need not be notified to make it effective. Generally, it

Securing of a favorable money judgment for the client.

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




bility

7. Extinguishment

exercised before judgment or execution or irregardless thereof.

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

is exercisable only when the attorney had already secured a favorable judgment for his client. When client loses action as lien may only be enforced against judgment awarded in favor of client, proceeds thereof/ executed thereon.

When can the Client Terminate the Attorney-Client Relationship? The client has the right to terminate at any time WITH OR WITHOUT JUST CAUSE. Just cause is material only in determining compensation. a. if without just cause, full payment of compensation agreed to in writing. b. If no written agreement, quantum meruit. Client cannot discharge counsel as an excuse to secure repeated extensions of time. Notice of discharge required in so far as court and adverse party are concerned. Q: A lawyer who is an employee of PNB participated in its transaction with client X. After he retired from the bank he was asked to represent client X in a suit involving the latter and the bank. Can the lawyer legally represent X? A: The lawyer cannot, he will violate Rule 6.03, Canon 6 of the CPR which states that “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.” It is unprofessional to represent conflicting interest. A lawyer represents conflicting interest when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.(PNB v. Cedo)

Q: Atty. A failed to file a brief for his client. Atty. X contends that his non-filing of the brief was due to volume and pressure of legal work. Is this contention valid? A: NO. A lawyer engaged to represent a client in a case bears the responsibility of protecting the latter’s interest with utmost diligence. The volume and pressure of legal work provide no excuse for Atty. X’s inability to exercise due diligence in the performance of his duty. Canon 1,Rule 1.03 provides “A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. (Santiago vs. Fojas)

Q: S, a candidate to the bar , was charged with homicide in connection with the death of Y(due to hazing) X pleaded guilty to a lesser offense, was convicted and placed on probation. After passing the bar examination can he be allowed to take the lawyer’s oath, sign the Roll of Attorneys and practice of law On the basis of various certifications showing that he is a devout Catholic with a genuine concern for civic duties and public service? A: YES. After a very careful evaluation of the case, the Supreme Court allowed petitioner to take the lawyer’s oath, sign the Roll of Attorneys and practice the legal profession with the following admonition : In allowing petitioner to take the lawyer’s oath, the Court recognizes that he is not inherently of bad moral fiber. On the contrary, the various certifications show that he is a devout Catholic with a genuine concern for civic duties and public service. This Court is persuaded the he has exerted all efforts to atone for the death of Raul Camaligan. This Court gives him the benefit of the doubt, taking judicial notice of the general tendency of youth to be rash, temerarious and uncalculating. ( In Re: Al Argosino, 270 Scra 26 )

Q: Atty. X filed with the CA a plea for injunctive relief and also a motion for the issuance of a writ of preliminary injunction with the QC RTC when the SC had already with finality on the same matter. Were the acts of Atty. X ethical? A: NO. Atty. X is guilty of forum shopping. The Court has warned counsel of litigants not to abuse court processes. Lawyers should not resort to forum shopping for this practice clogs the court dockets. Willful and deliberate forum shopping has been made punishable either as direct or indirect contempt of court. (Sanchez vs. Brion)




Remedy of Client Q: Atty. X is a retained counsel of V corporation. After the A-C relationship was severed. Atty. X was consulted by the employees of V corporation and agreed to handle their labor case against corporation V. Can Atty. X handle the case? A: NO. An Atty. owes loyalty to his client not only in the case in which he has represented him but also after the relation of A-C has terminated as it is not a good practice to permit him afterwards to defend in another case other person against his former client under the pretext that the case is distinct from, and take advantage of the secrets of client obtained while confidential relation of atty. and client exist (Rosacia vs. Bulalacao)

Requisites 1. 2.

Attorney - client relationship Want of reasonable care & diligence 3. Injury sustained by client as proximate result thereof.

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

breach

Libelous words in pleadings General Rule: A lawyer is exempted from liability for slander, libel or otherwise defamatory, published in course of judicial proceedings, PROVIDED statements are: 1. connected with 2. relevant 3. pertinent 4. material to cause in hand or subject of inquiry

Test of relevancy: The matter to which the privilege does not extend must be palpably wanting in relation to subject of controversy. That no reasonable man can doubt its relevancy or propriety.

Liability for Damages

Liability For obligation

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

of

fiduciary

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

Effect of failure to return client’s money or property after demand : 1. Presumption that he misappropriated the same 2. Civilly liable in favor of client 3. Criminal liability 4. Administrative liability

Q: Can a lawyer purchase client’s property involved in litigation in which he is the counsel?

Limitation: Pleadings should contain plain & concise statements of material facts & if pleader goes beyond requisites of law & alleges irrelevant matter which is libelous, he loses his privilege and may be liable in separate suit.

Liability for costs of suit General Rule: Losing client and not the lawyer is liable for costs of suit in favor of prevailing party, lawyer not being party litigant. Exception: Where the lawyer insisted on client’s patently unmeritorious case or interposed appeal to delay litigation or thwart prompt satisfaction of prevailing party’s just & valid claim, court may adjudge lawyer to pay treble costs of suit.

Criminal Liability Prejudicing client or revealing his secrets Acts Penalized 1. Causing prejudice to client thru malicious breach of professional duty or thru inexcusable negligence or ignorance. 2. Prejudice which would not have been caused to client had his lawyer not maliciously breached his professional duty or had the lawyer not been inexcusably negligent or ignorant 3. Revealing client’s secrets learned in lawyer’s professional capacity thru malicious breach of professional duty or inexcusable negligence or ignorance. The secrets cover only those privileged confidences and not those which are exceptions thereto.

A: NO. Such contract of sale is null and void.




Liability in interests

Representing

adverse

The lawyer who has undertaken the defense of client or has received confidential information from said client in a case may be criminally liable for undertaking defense of opposing party in same cause without consent of 1st client.

CONTEMPT OF COURT It is exercised on preservative & not on vindictive principle & on corrective rather than retaliatory idea of punishment, for purposes that are impersonal (criminal in nature). It is essential in the observance of order in judicial proceedings & enforcement of judgment.

Acts of a lawyer constituting contempt: 1. Misbehavior as officer of court 2. Disobedience or resistance to court order 3. Abuse or interference with judicial proceedings 4. Obstruction in administration of justice 5. Misleading courts 6. Making false allegation, criticisms, insults, veiled threats against the court 7. Aiding in unauthorized practice of law (suspended or disbarred) 8. Unlawful retention of client’s funds 9. Advise client to commit contemptuous acts

Q: Is a lawyer (1) always a notary public; or (2) is a notary public always a lawyer? Explain. A: No, not every member of the bar is a notary public because a lawyer requires a commission of appointment to be designated a notary public. In places where there are not enough lawyers as certified by the Integrated Bar Chapter, a non-lawyer of good moral character may be designated as notary public by the executive Judge.

Q: What are the powers and duties of a notary public? A: Every notary public shall have the power: 1. To administer all oaths and affirmations provided by law in all matters incident to his notarial office, and in the execution of affidavits, depositions, and other documents requiring an oath; 2. To receive proof or acknowledgment of all writings relating to commerce or navigation, such as bills of exchange, bottomries, mortgages,

and hypothecations of ships, vessels, or boats, charter parties or affreightments, letters of attorney, deeds, mortgages, transfers and assignments of land or buildings, or an interest therein, and such other writings as are commonly proved or acknowledged before notaries; 3. To act as a magistrate in the writing of affidavits or depositions; and 4. To make declarations and certify to the truth thereof under his seal of office, concerning all matters done by him by virtue of his office (Sec. 241, Notarial Law) The duties of a notary public are the following: 1. To keep a notarial register; 2. To make the proper entry or entries in his notarial register touching his notarial acts in the manner required by the law; 3. To send the copy of the entries to the proper clerk of court within the first 10 days of the month next following; 4. To affix to acknowledgments the date of expiration of his commission, as required by law; 5. To forward his notarial register, when filled, to the proper clerk of court; 6. To make report, within a reasonable time, to the proper judge concerning the performance of his duties, as may be required by such judge; 7. To make the proper notation regarding residence certificates. (Sec. 247, Rev. Adm. Code)

Q: What is the extent of the jurisdiction of a notary public? A: The jurisdiction of a notary public in a province shall be co-extensive with the province. The jurisdiction of a notary public in the City of Manila shall be co-extensive with said city. No notary shall, possess, authority to do any notarial act beyond the limits of his jurisdiction. (Sec. 240, Rev. Adm. Code)

Q: Who commission?

can

revoke

his

notarial

A: The notarial commission may be revoked by the Executive Judge of the Regional Trial Court who issued the commission or by the Supreme Court itself.




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

QUALIFICATIONS JUSTICES 1. 2. 3.

4.

OF

SC

AND

CA

Natural-born citizen of the Philippines; At least 40 years of age; Must have been for 15 years or more a judge of a lower court or engaged in the practice of law; Must be a person of proven competence, integrity, probity and independence.

QUALIFICATIONS OF RTC JUDGES 1. 2. 3.

Natural-born citizen of the Philippines; At least 35 years of age; For at least 10 years has been engaged in the practice of law in the Phil. or has held a public office in the Phil. requiring admission to the practice of law as an indispensable requisite.

QUALIFICATIONS OF MTC JUDGES 1. 2. 3.

Natural-born citizen of the Phil.; At least 30 years of age; For at least 5 years has been engaged in the practice of law in the Phil. or has held public office in the Phil. requiring admission to the practice of law as an indispensable requisite.

Judicial deportment To Counsel He must be courteous especially to the young and inexperienced. Avoid controversy and

not interrupt in their arguments except to clarify his mind as to their positions. He must not be tempted to unnecessary display of learning or premature judgment and he criticize & correct conduct of a lawyer but not in insulting manner.

To litigants / witness He must be considerate, courteous, and civil but he must not utter intemperate language during hearing of case.

Proper judicial conduct Conduct self as to be beyond reproach & suspicion and be free from appearance of impropriety in their personal behavior not only in discharge of official duties but also in their everyday life.

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

CODE OF JUDICIAL CONDUCT CANON I. A judge should uphold the integrity and independence of the judiciary Rule 1.01 – A judge should be the embodiment of competence, integrity and independence. Rule 1.02 – A judge should administer justice impartially and without delay. Rule 3.05 – A judge shall dispose of the court’s business promptly and decide cases within the required periods. In the Request of Judge Irma Zita Masamayor (A.M. NO. 99-1-16, RTC, June 21 1999) it was held that cognizant of the caseload of judges and mindful of the pressure of their work, the Supreme Court almost always grants requests for extension of time to decide cases. A heavy caseload may excuse a judge’s failure to decide cases within the reglementary period, but not his or her failure to request an extension of time within which to decide the same on time, i.e. before the expiration of the period to be extended. In Bernardo vs. Judge Amelia Fabros (A.M. NO. MTJ-99-1189, May 12, 1999 ), the Supreme Court has always considered the failure of a judge to decide a case within the reglementary period as GROSS INEFFICIENCY and imposed either fine or suspension from service without pay for such. The fines imposed vary in each case, depending chiefly on the




number of cases not decided within the reglementary period and other factors to wit: the presence of aggravating circumstances – the damage suffered by the parties as a result of the delay, the health and age of the judge, etc. CANON 2 – A judge should avoid impropriety and the appearance of impropriety in all activities. In Manuel vs. Judge Demetrio Calimay, Jr. (A.M. NO. RTJ-99-1441, May 28, 1999) it was held that the charges proferred in the instant case do not directly refer to respondent judge’s official functions does not mean he is totally free from blame. Canon 2 of the Code of Judicial Conduct provides that a judge should not only avoid impropriety but also the appearance of impropriety in all his activities. He should behave at all times as to promote public confidence in the integrity and impartiality of the judiciary. He should be extra careful in all his dealings – both in his professional and individual capacities – in order to promote and protect the image of the judiciary to which he is privileged to belong. In Prosecutor Leo Tabao vs. Judge Pedro Espina (A.M. NO. RTJ-96-1347, June 29, 1999 ) it was held that apropos the issue on the hasty rendition of judgment in a criminal case, the Supreme Court has reminded members of the bench time and again that as exemplars of justice and law, judges must avoid not only impropriety but even the appearance of impropriety in all their actions neither should they take undue interest in the settlement of criminal cases as the same may compromise the integrity and impartiality of their office.

Q: Judge X conducted preliminary investigations in a case where the complaining witness is the judge’s nephew. Is the judge’s act ethical? A: NO. Judge X should have refrained from handling the preliminary investigation since he was closely related to the complainant. A judge should not handle a case in which he might be perceived to be susceptible to bias and partiality. He should avoid not merely impropriety in all his acts but even the appearance of impropriety. (Perez vs. Judge Suller)

Q: Judge X failed to act on a motion to dismiss a case. He contends that the delay was brought about by the failure of his staff to present to him the ex-parte motion to resolve. Is the contention of Judge X valid? A: NO. A judge cannot take refuge behind the inefficiency or mismanagement by court personnel. Proper and efficient court

management is as much as his responsibility. It is also his duty to organize and supervise the court personnel to ensure the prompt and efficient dispatch of dispatch of business. Rule 2.01 – A judge should so behave at all times as to promote public confidence in the integrity of the judiciary CANON 3. A judge should perform official duties honestly and with impartiality and diligence Rule 3.01 --A judge shall be faithful to the law and maintain professional competence. In the case Exequiel Domingo vs. Judge Luis Reyes (A.M. NO. MTJ-98-1165, June 21, 1999 ) the Supreme Court held that judges are expected to keep abreast of developments in law and jurisprudence. The SC does not countenance respondent judge’s failure to inform himself of recent jurisprudential rules. His error, while an honest one and committed for the purpose of achieving the ends of justice, must never happen again. Respondent judge was reprimanded for IGNORANCE OF THE LAW. Rule 3.03 – Where a partner accepts public office, he shall withdraw from the firm and his name shall be dropped from the firm name unless the law allows him to practice concurrently. Rule 3.07 – A judge should abstain from making public comments on any pending or impending case and should require similar restraint on the part of court personnel period. Rule 3.10 – A judge should take or initiate appropriate disciplinary measures against lawyers or court personnel for unprofessional conduct of which the judge may have become aware Rule 3.12- Disqualification of judge from hearing a case A judge should take no part in a proceeding where the judge’s impartiality might be reasonably questioned. These cases include among others, proceeding where: a. the judge has personal knowledge of disputed evidentiary facts concerning the proceeding; b. the judge served as executor, administrator, guardian, trustees or lawyer in the case or matters in controversy, or a former associate of the judge as counsel during their association, or the judge or lawyer was a material witness therein; c. the judge’s ruling in a lower court is the subject of review;




d. the judge is related by consanguinity or affinity to party litigant within the sixth degree or to counsel within the fourth degree; e. the judge knows that the judge’s spouse or child has a financial interest, as heirs, legatee, auditor, fiduciary, or otherwise, in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding. In every instance the judge should indicate the legal reason for inhibition.

GROUNDS FOR DISQUALIFICATION AND INHIBITION OF JUDGES: MANDATORY a. pecuniary interest b. related within the 6th degree of consanguinity or affinity or to counsel within the 4th civil degree c. has been an executor, guardian, administrator, trustee or counsel d. presided in an inferior court where his ruling or decision is subject to review VOLUNTARY a. exercise of sound discretion-for just and valid reasons (Section 1, Rule 137) Leaves to judge to decide for himself question as to whether he will desist from sitting in case for other just & valid reason w/ only his conscience to guide him. Decision to disqualify self not conclusive & competency may be determined on application for mandamus to compel him to act. Judges decision to continue hearing case in w/c he’s not legally prohibited fr. trying not w/ standing challenge to his objectivity many not constitute reversible error The filing of an administrative case against a judge does not disqualify him from hearing a case. The court has to be shown other than the filing of administrative complaint, act or conduct of judge indicative of arbitrariness or prejudice before the latter being branded as the stigma of being biased or partial.

DISQUALIFICATION INHIBITION 1. Rule on 1.Rule does not disqualification expressly enumerate enumerates the the specific grounds grounds under which for inhibition but any judge or judicial merely gives a broad officer is disqualified basis thereof, i.e. from acting as such an good, sound or the express ethical grounds enumeration therein of such grounds exclude the others

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

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

Prohibitions Against Judges 1. Not to accept inconsistent duties 2. Incur obligations pecuniary or otherwise which will interfere with his devotion to expeditions & proper admin. of official functions. 3. Avoid giving ground for reasonable suspicion that he’s utilizing power or prestige to patronize to success of private business ventures or charitable enterprises 4. Not engage in private practice of law 5. Not permit law firm of which he’s formerly active member to continue carrying his name in firm. 6. Not enter into private business

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




Q: A judge figured in a vehicular accident alighted from his car and boxed X. Is the judge guilty of any misconduct even not in the performance of his duties? A: YES. The judge is guilty of misconduct. His personal behavior, not only while in the performance of official duties but also outside the court, must be beyond reproach, for he is, as he is so aptly perceived to be, the visible personification of law and justice. (Marcelino vs. Judge Singson)

Q: What is the effect of resignation or retirement of a judge when there is a pending administrative case against him? A: The retirement/resignation of a judge may or may not render the administrative complaint moot and academic. Each case will be determined according to its surrounding circumstances. According to Pesole vs. Rodriguez ( 81 SCRA 208 ) the acceptance by the President of the resignation does not necessarily render the case moot or deprive the SC of the authority to investigate the charges. The court retains its jurisdiction either to pronounce the respondent official innocent of the charges or declare him guilty thereof. A contrary rule will be fraught with injustice and pregnant with dreadful and dangerous implications. Q: Will an administrative case against a judge be dismissed by the withdrawal by or desistance of the complainant? A: NO. In the case of Anguluan vs. Taguba (93 SCRA 179), the withdrawal of the case by the complainant or the filing of an affidavit of desistance or the complainant’s loss of interest does not necessarily cause the dismissal thereof. REASON: to condition administrative sanctions upon the will of every complainant who for one reason or another, condones a detestable act is to strip the SC of its supervisory power to discipline erring members of the judiciary. Q: What is the nature of proceedings against judges?

administrative

confidence on his integrity and impartiality. Ultimately, it is the administration of justice that suffers. CANON 4. A judge may, with due regard to official duties, engage in activities to improve the law, the legal system and the administration of justice. Rule 4.01 - A judge may, to the extent that the following activities do not impair the performance of judicial duties or cast doubt on the judge’s impartiality. a. speak, write, lecture, teach or participate in activities concerning the law, the legal system and the administration of justice; b. appear at public hearing before a legislative or executive body on matters concerning the law, the legal system or the administration of justice and otherwise consult with them on matter concerning the administration of justice; c. serve on any organization devoted to the improvement of the law, the legal system or the administration of justice. CANON 5. A judge should regulate extra judicial activities so as to minimize the risk of conflict with judicial duties. Rule 5.01- A judge may engage in the following activities provided that they do not interfere with the performance of judicial duties or detract from the dignity of the court; a. write, lecture, teach and speak on nonlegal subject b. engage in the arts, sports and other special recreational activities c. participate in civic and charitable activities d. serve as an officer, director, trustee, or non-legal advisor of a non-profit or nonpolitical, educational, religious, charitable, and fraternal or civic organization. Rule 5.02 - A judge shall refrain from financial and business dealings 1. 2. 3.

A: Just like disbarment proceedings against attorney’s, proceedings against judges are private and confidential until the final determination thereof (Sec. 6, Rule 140 of the Rules of Court ). This is to protect their reputation, or it is possible that the cause or charges may be unfounded and malicious. Once the reputation of the judge is impaired or stained, the people will lose their trust and

that tend to reflect adversely on the court’s impartiality that interfere with the proper performance of judicial activities that increase involvement with lawyers or persons likely to come before the court

A judge should so manage investments and other financial interests as to minimize the number of cases giving grounds for disqualification.




Rule 5.03 - subject to the provisions of the preceding rule, a judge may hold and manage investments but should not serve as an officer, director, manager, advisor, or employee of any business except as director of a family business of the judge. Rule 5.04- a judge or any immediate member of the family shall not accept a gift, bequest, favor or loan from anyone except as may be allowed by law. This prohibition under Rule 5.04 extends to the immediate members of the judge’s family.

BRIBERY, DIRECT OR INDIRECT Acceptance of gifts given by reason of the office of the judge is indirect bribery (Art. 211 Revised Penal Code ) and when he agrees to perform an act constituting a crime in connection with the performance of his official duties in consideration of any offer, promise, gift or present receive by such officer, he is guilty of direct bribery (Art. 210 Revised Penal Code)

ANTI-GRAFT AND CORRUPT PRACTICES ACT Under RA 3019, the judge is liable criminally for directly or indirectly receiving gifts, present or other pecuniary or material benefit for himself or for another under conditions provided in Section 2, b and c of the law.. Exception: Excepted are unsolicited gifts or presents of small value offered or given as a mere ordinary token of gratitude or friendship according to local custom or usage (Section 14 RA 3019).

VOID DONATIONS UNDER THE CIVIL CODE Donations given to a judge or to his wife, descendants or ascendants by reason of his office are void (Art. 739, Civil Code ). Ownership does not pass to the donee. Money or property donated is recoverable by the donor, his heirs or creditors.

LOANS PROHIBITED UNDER THE CONSTITUTION Under Section 16 Article XI “No loan, guarantee or other form of financial accommodation for any business purpose may be granted directly or indirectly by any government-owned or controlled bank or financial institution to xxx members of the Supreme Court xxx during their tenure.”

A JUDGE SHOULD AVOID TAKING OR RECEIVING LOANS FROM LITIGANTS It is a serious misconduct for a judge to receive money from a litigant in the form of loans which he never intended to pay back. Even if the judge intends to pay, it is an act of impropriety to take a loan from a party-litigant. The judge could not be wholly free from bias in deciding a case where his lender is a party. A judge should always strive to be free from suspicion and all forms of improprieties. Rule 5.05 - No information acquired in a judicial capacity shall be used or disclosed by a judge in any financial dealing or for any other purpose not related to judicial activities. The prohibition will discourage if not stop judges from making business speculations in some business ventures, the secrets of which he learned by reason of his position as a judge. The judge may be liable for violation of Section 3(k) of RA 3019 – “divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons or releasing such information in advance of its authorized release due.” Violation of the rule may also lead to “revelation of secrets by an officer” or to “revelation of the secrets of a private individual” punishable by Articles 229 and 230 of the Revised Penal Code respectively. Rule 5.06 - The general rule is, the judge shall not serve as (a) executor, (b)administrator, (c) trustee, (d) guardian, (e) fiduciary. Exception : when the estate, trust, ward or person for whom he will act as executor, administrator, trustee, guardian or fiduciary is a member of the immediate family- which is limited to the spouse and relatives within the second degree of consanguinity – provided that the judge’s services as fiduciary shall not interfere with the performance of his judicial functions. A judge SHALL NOT: a. serve in proceeding that might come before the court of said judge b. act as such contrary to Rules 5.02 to 5.05. NOTE : the relationship mentioned consanguinity and not by affinity.

is

by

Rule 5.07 - A judge shall not engage in the private practice of law. Unless prohibited by the constitution or law, a judge may engage in the practice of any other profession provided that




such practice will not conflict or tend to conflict with judicial functions. Section 35 of Rule 138 of Rules of Court prohibits judges, officials or employees of superior courts xxx from engaging in private practice as members of the bar and in giving professional advice to clients. The reason for the prohibition has been explained in Dia-Anonuevo vs. Bercacio (68 SCRA 81 ). The Supreme Court held that the rule disqualifying a municipal judge from engaging in the practice of law seeks to avoid the evil of possible use of the power and influence of his office to affect the outcome of a litigation where he is retained as counsel. Compelling reasons of public policy lie behind this prohibition, and judges are expected to conduct themselves in such a manner as to preclude any suspicion that they are representing the interests of party litigant. In De Castro vs. Capulong (118 SCRA 52) a judge who merely acted as a witness to a document and who explained to the party waiving his right of redemption over the mortgaged properties and the consequences thereof does not engage himself in the practice of law. Rule 5.09 - A judge shall not accept appointment or designation to any agency performing quasi-judicial or administrative sanctions. The prohibition is based on Section 12, Art. VIII of the Constitution which provides: “The members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi judicial or administrative functions.” The appointment to such positions will likely interfere with the performance of the judicial functions of a judge hence, the prohibition. Rule 5.10 - A judge is entitled to entertain personal views on political questions. But to avoid suspicion of political partisanship, a judge shall not make political speeches, contribute to party funds, publicly endorse candidates for political office or participate in other partisan political activities. All judges shall strictly comply with this Code

Liability of judges In the absence of fraud, dishonesty or corruption, acts of judge in his judicial capacity not subject to discharge action even though such acts are erroneous. He can’t be subject to

liability – criminal, civil, administrative for any of his official acts, no matter how erroneous, so long as he acts in good faith. The remedy of aggrieved party – not to file administrative complaint against the judge but to elevate error to higher court for review and correction When may judge be liable? Civil, criminal and administrative liability 1. Malfeasance 2. Misfeasance 3. Knowingly rendering unjust judgment 4. Malicious delay in administration of justice 5. Giving private party unwarranted benefit in exercise of judicial function

CIVIL LIABILITIES OF JUDGES IN RELATION TO THEIR OFFICIAL FUNCTIONS : Any public officer or employee or any private individual, who directly or indirectly obstructs, defeats and violates or in any manner impedes or impairs the civil rights and liberties of persons shall be liable for damages. (Art. 32, Civil Code ) The responsibility for damages is not however demandable of judges except when the act or omission of the judge constitutes a violation of the Penal Code or other penal statute. (Art. 32, last par.) A judge who willfully or negligently renders a decision causing damages to another, shall indemnify the latter for the same. A judge is also civilly liable for damages, if in refusing or neglecting to decide a case without just cause, a person suffered material or moral loss without prejudice to any administrative action that may be taken against him. (Art. 27, Civil Code )

DISABILITIES OF JUDGES UNDER THE CIVIL CODE Judges cannot purchase properties subject of litigation in his court. Art. 1491. The following persons cannot acquire by purchase, even at a public or judicial action, either in person or through the mediation of another: xxx (5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts and other officers and employees connected with the administration of justice, the property




and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions, this prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession. xxx Donations made to a judge, his wife, descendants and ascendants by reason of his office are void under Art. 739 of Civil Code.

CRIMINAL LIABILITIES OF JUDGES IN RELATION TO THEIR OFFICIAL FUNCTIONS MALFEASANCE UNDER REVISED PENAL CODE: 1. Knowingly Rendering Unjust Judgment Any judge who shall knowingly render an unjust judgment in any case submitted to him for decision shall be punished by prision mayor and perpetual absolute disqualification. (Art. 204 Revised Penal Code) In order that a judge may be held liable for knowingly rendering an unjust judgment, it must be shown beyond doubt that the judgment is unjust as it is contrary to law or is not supported by evidence and the same was made with conscious and deliberate intent to do an injustice. (In Re: Climaco, 55 SCRA 107) If the decision rendered by the judge is still on appeal, the judge cannot be disqualified on the ground of knowingly rendering an unjust judgment. (Abad vs. Blaza, 145 SCRA 1) 2. Judgment Rendered Through Negligence – Any judge who, by reason of inexcusable negligence or ignorance shall render a manifestly unjust judgment in any case submitted to him for decision shall be punished by arresto mayor and temporary special disqualification. (Art. 205 Revised Penal Code) MANIFESTLY UNJUST JUDGMENT – It is one which is so patently against the law, public order, public policy and good morals that a person of ordinary discernment can easily sense its invalidity and injustice. To hold a judge liable for the rendition of a manifestly unjust judgment by reason of inexcusable negligence or ignorance, it must be shown, that although he has acted without malice, he failed to observe in the performance of his duty. (In Re: Climaco 55 SCRA 107) Negligence and ignorance are inexcusable if they imply a manifest injustice

which cannot be explained by reasonable interpretation. (In Re; Climaco, 55 SCRA 107). 3. Knowingly Rendering an Unjust Interlocutory Order – Any judge who shall knowingly render an unjust interlocutory order or decree shall suffer the penalty of arresto mayor in its minimum period and suspension; but if he shall have acted by reason of inexcusable negligence or ignorance and the interlocutory order or decree be manifestly unjust, the penalty shall be suspension. (Art. 206, Revised Penal Code) INTERLOCUTORY ORDER – an order which is issued by the court between the commencement and the end of a suit or action and which decides some point or matter but which, however, is not a final decision of the matter in issue. 4. Maliciously Delaying the Administration of Justice – The penalty of prision correccional in its minimum period shall be imposed upon any judge guilty of malicious delay in the administration of justice. To make the judge liable, the act must be committed maliciously with deliberate intent to prejudice a party in a case.

Procedure for Discipline 1. Charges in writing & set out facts constituting serious misconduct or inefficiency. 2. Sworn to & supported by affidavits 3. Not entertain anonymous complaints except in case in which charges could be fully borne by public records of indubitable integrity & matter involved is of public interest. 4. If charge merit action, copy served on respondent requiring him to answer w/in 10 days from date of service 5. If not dismissed by SC 6. Where facts show responsible liability; he may be disciplined even w/o further investigation in accordance with res ipsa loquitor 7. If merit action, assign hearing officer to conduct investigation, receive evidence of parties & submit report of findings of facts, on w/c court bases its action even if complaint w/ drawn 8. Until final resolution proceeding against judgment remain private and confidential. Quantum of Evidence Required 1.Impeachment proceedings against judges Penal in nature governed by rules on criminal case and therefore requires proof beyond reasonable doubt 2.Misconduct




Reliable evidence showing that judicial actions are corrupt or inspired by intent to violate the law or in persistent disregard of legal rules. Q: Under the grievance procedure in Rule 139-B of the Rules of Court, may judges be investigated by the Integrated Bar of the Philippines? Explain. A: Justices and Judges may not be investigated under the grievance procedure in Rule 139-B, sec. 1 of the Revised Rules of Court. Complaints against justices and judges are filed with the Supreme Court which has administrative supervision over all courts. As a matter of practice, the Supreme Court has assigned complaints against Municipal or Metropolitan Trial Judges to an Executive Judge of a Regional Trial Court and complaints against judges of Regional Trial Courts to a justice of the Court of Appeals, while a complaint against a member of the Court of Appeals would probably be assigned to a member of the Supreme Court for investigation, report and recommendation. Reinstatement of Judge Previously Discipline No indication that he’s inspired by corrupt motives or reprehensive purpose to set the guilty free.

1. admonish 2. reprimand 3. suspend and 4. disbar a lawyer (Section 27, Rules 138, Rules of Court) 2.

The Court of Appeals and the Regional Trial Courts are also empowered to a. Warn b. Admonish c. reprimand and d. suspend an attorney who appears before them from the practice of law for any of the causes mentioned in Section 27, Rule 138 (Section 16, Rule 139-B). But they cannot disbar a lawyer.

Who has the Power to Discipline erring Members of the Bench? The Supreme Court has administrative supervision over all courts and the personnel thereof. (Section VI, Art. VIII, Constitution ) The Court en banc has the power to discipline all judges of lower courts including justices of the Court of Appeals. It may even dismiss them by a majority vote of the members who actually took part in the deliberation of the issues in the case and voted thereon. (Section XI, Art. VIII, Constitution)

Factors to be considered 1. Unsullied name & service of record prior to dismissal 2. Commitment to avoid situation that spur suspicion of arbitrary conditions. 3. Complainant mellowed down in pushing from his removal 4. length of time separated from service

MALFEASANCE UNDER ANTI-GRTAFT AND CORRUPT PRACTICES ACT A judge is criminally liable for causing an undue injury to a person or giving any private party an unwarranted benefit, advantage or preference in the discharge of his official function through manifest partiality, evident bad faith and gross inexcusable negligence. (Section 3(e), R.A. 3019)

III. BAR DISCIPLINE Who has the Power to Discipline Errant Lawyers? 1.

The Supreme Court has the full authority and power to a. warn

The inferior courts (MTCs) are not empowered even just to suspend an attorney, although they may cite or hold a lawyer in contempt of court for contemptuous acts. Justices and judges, who are also lawyers, if found guilty of certain crimes and / or of the causes for disbarment under the Rules of Court may also be disbarred. Justices of the Supreme Court however may not be disbarred unless and until they shall have been first impeached in accordance with the Constitution. The same is true with the other impeachable officers who are members of the bar.

What are the different FORMS OF DISCIPLINARY MEASURES for erring members of the Bar? (WARS – CD) 1. Warning – An act or fact of putting one on his guard against an impending danger, evil consequences or penalties. 2. Admonition – a gentle or friendly reproof, mild rebuke, warning or reminder, counseling, on a fault, error or oversight, an expression of authoritative advice.




3. Reprimand – a public and formal censure or severe reproof, administered to a person in fault by his superior officer or a body to which he belongs. 4. Suspension – temporary withholding of a lawyer’s right to practice his profession as a lawyer for a certain period or for an indefinite period of time. a. Definite b. Indefinite- qualified disbarment; Leaves to lawyer to determine for himself for how long or how short his suspension shall last by proving to court that he’s once again fit to resume practice of law.

1. Neither civil nor criminal proceeding; 2. The defense of double jeopardy is not available; 3. It can be initiated motu proprio by the SC or the IBP. It can be initiated without a complaint; 4. It can proceed regardless of interest of the complainants; 5. It is imprescriptible; 6. Conducted confidentially until its final determination 7. It is itself due process of law.

Reason for making Disbarment Proceedings Confidential .

6. Disbarment - It is the act of the Philippine Supreme Court in withdrawing from an attorney the right to practice law. The name of the lawyer is stricken out from the roll of attorneys.

To enable the Supreme Court to make its investigation free from any extraneous influence or interference as well as to protect the personal and professional reputation of attorneys and judges from the baseless charges of disgruntled, vindictive and irresponsible clients and litigants. (In Re: Abistado, 57 Phil 668)

MAIN OBJECTS OF DISBARMENT AND SUSPENSION

GROUNDS FOR SUSPENSION OR DISBARMENT OF MEMBERS OF THE BAR

1. To compel the attorney to deal fairly and honesty with his clients; 2. To remove from the profession a person whose misconduct has prove him unfit to be entrusted with the duties and responsibilities belonging to the office of an attorney; 3. To punish the lawyer although not so much as to safeguard the administration of justice. 4. To set an example or a warning for the other members of the bar; 5. To safeguard the administration of justice from incompetence and dishonesty of lawyers; 6. To protect the public.

Q: On what grounds may a member of the bar be suspended or disbarred? A: I. Rule 138, sec. 27 of the Revised Rules of Court enumerates the grounds for the Supreme Court to suspend or disbar a lawyer from the practice of his p rofession:

5. Censure - Official reprimand.

Nature of Proceedings 1. NOT a civil action because there is no plaintiff and no respondent, involves no private interest. The complainant is not a party and no interest in the outcome except as all citizens have in proper administration of justice, no redress for private grievance. 2. NOT a criminal prosecution because it is not meant as a punishment depriving him of source of livelihood but is rather those who exercise the function should be competent, honorable and reliable so that public may repose confidence in them. 3. Judicial proceeding (SUI JURIS) because it is an investigation by the court about the misconduct of its officer. 4. Confidential in nature.

CHARACTERISTICS PROCEEDINGS

OF

DISBARMENT

1. Deceit; 2. Malpractice, or other gross misconduct in office; 3. Grossly immoral conduct; 4. Conviction of a crime involving moral turpitude; 5. Violation of oath of office; 6. Willful disobedience of any lawful order of a superior court; 7. Corruptly or willfully appearing as an attorney for a party to a case without authority to do so. II. Acquisition of an interest in the subject matter of the litigation, either thru purchase or assignment (Art. 1491, Civil Code) III. Breach of professional duty, inexcusable negligence, or ignorance, or for the revelation of the client’s secrets (Art. 208, Revised Penal Code) IV. Representing conflicting interests (Art. 209, Revised Penal Code) DECEIT – is a fraudulent and deceptive misrepresentation, artifice of device used by one or more persons to deceive and trick another, who is ignorant of the true facts to




the prejudice and damage of the party imposed upon. There must be false representation as to matter of fact. Cases of Deceit a. Misappropriation of client’s fund (Capulong vs. Alino, 22 SCRA 491) b. Falsification of grades in the Bar Examination (In Re: Del Rosario (52 SCRA 399) c. Maneuvering reconveyance of property in the name of the lawyer instead of the client in a case involving sale with pacto de retro (Imbuido vs. Fidel Mangonan 4 SCRA 760) MALPRACTICE – refers to any malfeasance or dereliction of duty committed by a lawyer LEGAL MALPRACTICE – consists of failure of an attorney to use such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of tasks which they undertake, and when such failure proximately causes damage, it gives rise to an action in tort. (Tan Tek Beng vs. David, 1126 SCRA 389) Cases of Malpractice: a. Failure of lawyer to appeal in allowing the period of appeal to lapse (Toquib vs. Tomol, Adm. Case No. 554, January 3, 1969) b. Preparation by a notary-public of a false affidavit (Vda. De Guerrero vs. Hernando, 68 SCRA 76) c. Abandonment of client’s case (In Re: Yeager, 56 Phil 691)

IMMORAL CONDUCT – that conduct which is willful, flagrant or shameless and which shows a moral indifference to the opinion of the good and respectable members of the community.

which one person owes to another or to society in general, which is contrary to the usual accepted and customary rule of right and duty which a person should follow. Crimes Involving Moral Turpitude: estafa, bribery, murder, bigamy, seduction, abduction, concubinage, smuggling, falsification of public document, violation of B.P. 22

WILLFUL DISOBEDIENCE OF ANY LAWFUL ORDER OF SUPERIOR COURT The resistance or defiance to the order of the court must be willful. A lawyer who is directed to do something, such as surrender records, to appear as counsel de oficio, to comment on a matter pending with court, may be disciplined for willful disobedience of the order . (Santos vs. CA, 198 SCRA 806)

Breach of Duties to Court 1.

Obstructing Administration of justice

Misconduct and justifies disciplinary action against him; also contempt of court Examples a. Forum shopping b. Employment of dilatory tactics c. Instruct complainant not to appear at hearing so that case against accused may be dismissed d. Ask client who’s detained to escape 2. Misleading court Knowingly making false allegation in pleadings, misquoting text of documents, suppressing material facts 3. Preferring false charges Filing or prosecuting false charges against another for his action is violative of duty to do falsehood nor consent to doing of any in court, nor wittingly or willingly promote or sue any false, groundless, unlawful suit.

Requisites It is difficult to state with precision and to fix an inflexible standard at what is “grossly immoral conduct” or to specify the moral delinquency and obliquity which render a lawyer unworthy of continuing as a member of the bar. In the case of Arciga vs. Maniwang (106 SCRA 591 ), mere intimacy between a lawyer and a woman with no impediment to marry each other voluntarily cohabited and had two children, is neither so corrupt as to constitute a criminal act nor so unprincipled as to warrant disbarment or disciplinary action against the man as a member of the bar. MORAL TURPITUDE – imports an act of baseness, vileness or depravity in the duties

a. Charges are fake b. The lawyer knows them to be so 4.

Introducing False Evidence

It is a violation of oath to do falsehood nor consent to doing of any in court. When false testimony is material to inquiry or relevant to issue, it requires suspension or disbarment. On the other hand, when the testimony is immaterial or irrelevant and does not cause substantial prejudice, it only warrants lesser sanction, such as warning or reprimand 5. Willfully disobeying court orders Punished for contempt and disciplinary as officer of court. vicious or disrespectful 6. Using

language




By direct contempt; violation of oath & code; administratively liable for misconduct as officer of court and may order striking off from record of defamatory remarks. The lack of intention does not excuse him from liability. to practice after 7. Continue

suspension Gross misconduct and willful disregard of suspension order.

Breach of Duties to Client: Negligence in performance of duties Requisites to warrant Suspension or Disbarment: 1.

a. Negligent carelessness which must be gross in character b. Caused material prejudice to client Mere negligence without pecuniary damages justify only reprimand or censure except when breach of duty to client is a gross violation of obligation to court.

1. Employment of unlawful means

2. Deceit or misrepresen tation Requisites a. Bad faith on the part of the lawyer b. Material damage to client

4. Representing adverse Interest and revealing client’s secrets If there is no written consent of client, a lawyer may not represent conflicting interest. The fact that lawyer did not acquire confidential information from client nor use the same against the latter does not excuse him from responsibility.

5. Purchase litigation

client’s

property

in

Requisites to constitute malpractice a. Lawyer is counsel for client at time he acquired the same b. By himself or thru another c. During pendency of litigation

6. Failing to account misappropriation of client’s property

or

Presupposes fraudulent intent of lawyer. Immediate repayment by lawyer of client’s money or property after demand but before institution by client of disbarment proceedings negate fraudulent intent. If the lawyer has a lien, it cannot be used as an excuse for not making an accounting.

7.

Collecting unreasonable fees

Where the law fixes the maximum amount which lawyer may charge client, collection of more than what law allows constitutes malpractice.

8.

Acting without authority

A lawyer can bind client without special power of attorney only matters of proceedings.

9. Willfully appearing without being retained It must be willful, corrupt or contumacious in order that he may be held liable.

Breach of Duties to Bar 1. Unethical conduct or unprofessional conduct That which violates rules or ethical code of legal profession.

Breach of Duties to Colleague 1. Defaming fellow lawyer Improper and objectionable against another lawyer or accuse him wantonly and maliciously of serious misconduct in the absence of reasonable cause. Strongly worded statements by a lawyer against opposing lawyer, if justified by records, may not justify disciplinary action against him.

2. Encroaching upon another 3. Soliciting business

business

of

For purpose of gain, personally or thru paid agents is MALPRACTICE (malfeasance or dereliction of duty com.). While agreeing with non-lawyer to divide lawyer’s fees paid by client or solicitation by non-lawyer.

4.

Advertising

Other Grounds for Discipline 1. Non-professional misconduct General Rule Lawyer may not be suspended or disbarred for his non-professional misconduct or private capacity. Exception Where such is so GROSS to show him to be morally unfit for office or unworthy of privilege, court may be justified in suspending or removing him.

2. Gross immorality Act of personal immorality on part of lawyer in his private relation with opposite sex may put character in doubt. But to justify suspension or disbarment, the act must not only be IMMORAL , it must be GROSSLY IMMORAL GROSSLY IMMORAL ACT – one so corrupt and false as to constitute criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree. Cohabitation per se is not grossly immoral, it depends on circumstances and it is not necessary that there be prior conviction for offense before lawyer may be disciplined for gross immorality. If the evidence is not sufficient to hold the lawyer liable for gross immorality, he may still be reprimanded where evidence shows failure on his part to




comply with rigorous standards of conduct required from lawyer.

3.Conviction of crime involving moral turpitude All crimes of which fraud or deceit is an element or those inherently contrary to rules of right conduct, honesty or morality in civilian community

4.Promoting to violate or violating penal laws 5.Misconduct in discharge of official duties Malfeasance or misconduct by government official in discharge of official duties, which is a violation of code, subject him to disciplinary such as disbarment. Not subject to disbarment or suspension for violation of Code. While impeachable officials like SC Justices, Members of the Constitutional Commission and Ombudsman can be removed only by impeachment.

Commission of fraud or falsehood Misconduct as notary public By applying for having self commissioned as notary public, lawyer assumes duties in dual capacity, the non-performance of which be may be a ground for discipline as member of bar .

Q: May a member of the Bar be suspended or disbarred other than those enumerated in the Rules of Court?

Proceedings for the disbarment, suspension and discipline of attorneys may be taken by the Supreme Court motu proprio or by the IBP upon the verified complaint of any person IBP Board of Governors may motu proprio or upon referral by the SC or by a Chapter Board of Officers or at the instance of any person, can initiate and prosecute proper charges against erring attorneys including those in government. The complaint shall state clearly and concisely the facts complained of and shall be supported by affidavits of persons having personal knowledge of the facts therein alleged and / or by such documents as may substantiate such facts. Six copies of the verified complaint shall be filed with the Secretary of IBP or Secretary of any of its Chapters who shall forthwith commit the same to the IBP Board of Governors for assignment to an investigator.

PROCEEDINGS IN THE IBP (RULE139-B) Appointment by the Board of Governors among IBP members of an investigator or a panel of three investigators. Investigator shall investigate all complaints against members of IBP referred to them by IBP Board of Governors and shall submit a report to the IBP-BG

A: YES. The statutory enumeration of the grounds for disbarment or suspension is not to be taken as a limitation on the general power of courts to suspend or disbar a lawyer. The inherent power of court over its officers cannot be restricted. (Quingwa vs. Puno, Admin. Case No 398, Feb. 28, 1967 ) The Supreme Court has disbarred or suspended lawyers for reasons not found in the statute as when their acts are contrary to honesty or good morals or do not approximate the highest degree of morality and integrity expected of the members of the bar. (Sta. Maria vs. Tuazon, Admin. Case No. 396, July 31, 1964).

If the complaint is meritorious, the investigator shall direct a copy to be served upon the respondent who shall answer within 15 days from receipt of service.

OFFICERS AUTHORIZED TO INVESTIGATE DISBARMENT CASES:

Action and Investigation of Complaint

1. 2.

SC IBP through its Commission on Bar Discipline or authorized investigators 3. Office of the Solicitor General

PROCEEDINGS FOR DISBARMENT, SUSPENSION, AND DISCIPLINE OF ATTORNEYS (Rule 139-B-1)

If not meritorious, the same may be dismissed by them upon investigation or recommendation. A copy of the resolution shall be furnished to complainant. Supreme Court may review the case motu proprio or on appeal by the complainant within 15 days from notice of dismissal of the complaint.

1. IBP NGC (National Grievance Committee) or panel of 3 investigators, ascertain whether complaint is meritorious. 2. If meritorious, investigator direct copy to be served upon respondent requiring him to answer within 15 days from date of service. 3. If complaint has no merit or if answer shows no satisfaction of investigation that complaint is not meritorious, same may be dismissed by Board of Gov. upon his recommendation.




4.Copy of resolution of dismissal shall be furnished the complainant and the SC which may review case motu proprio or upon timely appeal of complainant filed w/in 15 days from notice of dismissal of complaint. 5. Answer shall be verified. 6. Original and 5 copies of answer filed with investigation with proof of services of copy thereof on complainant or his counsel. 7.Upon joinder of issues on failure or respondent to answer, investigation shall proceed w/ investigation of case. 8. Respondent shall be given full opportunity to defend himself, to present witnesses on his behalf and be heard by himself and by counsel 9. If upon reasonable notice, respondent fails to appear, investigation proceed ex parte. 10. Investigator terminate investigation within 3 months from date of commencement, unless extended for good cause by Board of Gov. upon prior application. 11. No investigation shall be interrupted or terminated by reason of desistance, settlement, compromise, restitution, withdrawal of charges or failure of complainant to prosecute same.

Report of Investigator and Decision by Board of Governors 1. Not later than 30 days from termination of investigation, the investigator shall submit report containing his findings of fact and recommendation to IBP Board of Governors together with transcript and evidence during investigation. 2.NGC may recommend that respondent be exonerated of charges or admonished, reprimanded, fined, suspended from practice, or disbarred as evidence warrant 3.IBP Board of Gov. review every case heard by investigator of its total membership 4.Decision shall be in writing and state facts and reasons on which it is based 5.Promulgated within a period of not more than 30 days from next meeting of Board following submission of investigation of report 6.If decision of Board is for suspension from practice or disbarment, it shall be transmitted to S. Court for final action. 7.If decision is for exoneration of respondent or imposition of disciplinary sanction of less than suspension or disbarment, such as admonition or reprimand, Board’s decision becomes final unless upon petition of complainant or other interested party filed with SC within 15 days from notice of Board’s resolution, SC orders otherwise. 8. SC decides case by division or en banc. a.Division-suspension of 1 year or less b.En Banc- exceeds 1 yr. 5.Division- fine of P10,000 or less 6.En Banc- fine P10,000 or more 7.En Banc- both suspension and fine

8.2 or more suspensions- service of some successive not simultaneous

Q: Can RTC judge designated by SC to investigate administrative charge against MTC judge dismiss the case? A: NO. The investigating judge’s authority is only to investigate, make a report and recommendation on the case to be submitted to the SC for final determination. (Graciano vs. Sebastian, 231 SCRA 588)

Q: What is the effect of desistance, withdrawal or complaint or non-appearance of complainant in disbarment proceedings? A: The desistance or the withdrawal of the complainant of the charges against a judge does not deprive the court the authority to proceed to determine the matter. Nor does it necessarily result in the dismissal of the complaint except when, as a consequence of the withdrawal or desistance no evidence is adduced to prove the charges. This rule is founded on the rationale that disbarment proceedings is neither civil nor criminal but one prosecuted solely for the public interest. What is important is whether the charges against the respondent have been duly proved.

Q: What is the doctrine of RES IPSA LOQUITOR? A: This principle or doctrine applies to both judges and lawyers. Judges had been dismissed from the service without need for a formal investigation because based on the records, the gross misconduct or inefficiency of the judges clearly appears. (Uy vs. Mercado, 154 SCRA 567). The same principle applies to lawyers. Thus, on the basis of the lawyer’s comment or answer to a show-cause order of SC, it appears that the lawyer has so conducted himself in a manner which exhibits his blatant disrespect to the court, or his want of good moral character or his violation of the attorney’s oath, the lawyer may be suspended or disbarred without need of a trial-type proceeding. What counts is that the lawyer has been given the opportunity to give his side. (Prudential Bank vs. Castro 156 SCRA 604)

Q: Who has the exclusive authority to reinstate? How?




A: The Supreme Court has the exclusive authority to reinstate.Petitioner must prove that he is once again fit and proper person to practice law. 1. His conduct prior and subsequent to disbarment 2. Nature and character of the misconduct for which he was disbarred 3. The time that lapsed between the disbarment and the application for reinstatement (Prudential Bank vs. Benjamin Grecia, 19 SCRA 381)

was filed may indicate ulterior motive on part of complainant or innocence on part of respondent Modifying Circumstance Extent of disciplinary action depends on attendance of mitigating or aggravating circumstance.

Mitigating Circumstances 1. 2. 3. 4. 5.

Good faith Want of intention to commit wrong Lack of material damage to complainant Desistance of complainant Youth and inexperienced in bar, etc.

Q: Upon what ground may a suspended attorney ask for reinstatement?

Aggravating Circumstances

A: A lawyer who has been suspended or disbarred may be reinstated when the SC is convinced that he has already possessed the requisites of probity and integrity necessary to guarantee his worth to practice his profession.

1. Abuse of authority or of attorney–client relationship 2. Sexual intercourse w/ LLB relative. 3. Making institution of marriage a mockery 4. Charge of gross immorality 5. Lawyer previously dismissed as member of bar

Q: Is a disbarred lawyer due to conviction from a crime automatically reinstated to the practice of law upon being pardoned by the President? A: NO. To be reinstated, there is still need for the filing of an appropriate petition with the SC.

Q: What is the effect of executive pardon during the pendency of a disbarment proceeding? A: If during the pendency of a disbarment proceeding the respondent was granted executive pardon, the dismissal of the case on that sole basis will depend on whether the executive pardon is absolute or conditional. If the pardon is absolute or unconditional, the disbarment case will be dismissed. However, if the executive pardon is conditional, the disbarment case will not be dismissed on the basis thereof.

Defenses and Modifying Circumstances. Defenses generally The purpose and nature of disbarment proceedings make the number of defenses available in civil and criminal actions inapplicable in disciplinary proceedings. The Statute of Limitations is not a defense in disciplinary proceedings. Circumstances that facts set up as ground for disbarment constitute crime, the prosecution for which in criminal action is barred by prescription. Exception: The fact that a considerable length of time has lapsed from the date the misconduct took place to date the complaint for disbarment

Desistance of Complainant General Rule: Desistance or withdrawal of charges against lawyer does not deprive the court of authority to proceed.

Exception: When as a consequence of withdrawal or desistance, no evidence adduced to prove charges, in which case court dismisses case.

Test: Whether on basis of the facts borne out by record, charges against respondent have been proved.

Effect of Death of Lawyer During Pendency of Disciplinary Action Against him: 1.Renders action moot and academic 2.Court may still resolve case on merit in order to clear publicly the name of the lawyer.

Judgment Dismissal of Case In the absence of convincing or clearly preponderant evidence, disbarment case against him should be dismissed. However, the court can still impose conditions despite dismissal of disciplinary action against him, if the facts so warrant and in the event the lawyer fails to comply with such condition, it may suspend or disbar him for disobedience of its order.




Executive Pardon Absolute Pardon by President may wipe out conviction as well as offense itself and grant thereof in favor of LLB is bar to proceeding for disbarment against him based solely on comm. of offense. If absolute pardon is given to lawyer after being disbarred for conviction of crime, it does not automatically entitle him to reinstatement to bar. It must be showed by evidence aside from absolute pardon that he’s now a person of good moral character and fit and proper person to practice law. In case of a Conditional Pardon, there will be a remission of unexpired period of sentence. Reinstatement Authority to Reinstate SC also has the power to admit or remove; stems from the constitutional prerogative to issue rules and regulations concerning admission to practice of law

The official national unification of the entire lawyer population of the Philippines. This requires membership and financial support in reasonable amount of every attorney as conditions sine qua non to the practice of law and the retention of his name in the Roll of Attorneys. The Board of governors shall provide the By-Laws for grievance procedure for the enforcement and maintenance of discipline among all the members of the IBP, but no action involving the suspension or disbarment of a member or the removal of his name from the Roll of Attorneys shall be effective w/o the final approval of the SC. (Rule 13s9-A,Section 12, Rules of Court)

Q: Is the compulsory membership in the IBP violative of the lawyer’s constitutional freedom to associate or corollary right not to associate?

Matter taken into account 1. Character or standing prior of disbarment 2. Nature or character of misconduct for which he is disbarred 3. Conduct subsequent to disbarment 4. Efficient government service 5. Time that elapsed between disbarment 6. Application for reinstatement & circumstances that he’s been punished 7. Application, appreciation of significance of his dereliction. 8. Assurance that he now posses probity & integrity 9. Favorable indorsement of IBP, pleas of loved ones. The court may require applicant for reinstatement to enroll in & pass the required 4 th yr. review classes in a recognized law school. (Cui vs. Cui ) Effect of reinstatement 1. Recognized of moral rehabilitation and mental fitness to practice law 2. Subject to same law, rules & regulations. As those applicable to any other lawyer. 3. Comply with condition imposed on his readmission.

IV. INTEGRATED BAR OF THE PHILIPPINES National organization of lawyers created on January 16, 1973 under Rule 139-A, Rules of Court and constituted on May 4, 1973 into a body corporate by P.D. No. 181

A: NO. Integration does not make a lawyer a member of any group of which he is already a member. He became a member of the bar when he passed the Bar Examinations. All that integration actually does is to provide an official national organization for the well defined but unorganized and incohesive group of which every lawyer is already a member. (In re: Edillon A.M. 1928)

Q: May a member of the IBP voluntarily terminate his membership therein? A: YES, by filing a verified notice to that effect with the Secretary of IBP who shall immediately bring the matter to the attention of the SC. Forthwith, he shall cease to be a member and his name shall be stricken from the Roll of Attorneys.

Q: What is the effect of failure to pay annual membership dues to the IBP? A: The failure of any attorney to pay his annual membership dues for 6 months shall warrant suspension of his membership in the IBP and default of such payment for one year shall be a ground for the removal of his name from the Roll of Attorneys. (Sec. 10, Rule 139-A, Rules of Court). Q: May a lawyer be disciplined either by the IBP or the Court for failing to pay her obligation to complainant ? A: NO. A lawyer may not be disciplined either by the IBP or the Court for failing to pay her obligation to complainant, a matter in her non-


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