Legal Ethics Notes

LEGAL ETHICS REVIEWER

COLLEGE OF LAW ATENEO DE DAVAO

Sigma Legis Fraternity & Sorority

MEMBER’S COPY SCROLL # _________

LEGAL PROFESSION & ETHICS

Introduction

WHAT CONSTITUTES THE PRACTICE OF LAW NOTES (Agpalo) 

Practice of law: legal advice and instructions to clients to inform them of their rights and obligations; preparation for clients of documents, requiring knowledge of legal principles not possessed by ordinary layman; appearance for clients before public tribunals which possess power and authority to determine rights of life, liberty and property according to law in order to assist in the proper interpretation and enforcement of law



 In the Matter of the IBP (1973) The power to integrate the Philippine bar is given to the SC by the Constitution. RA 6397 is a mere legislative declaration that the integration of the bar will promote public interest.

Cayetano v Monsod (Padilla dissent): practice of law’s 4 elements: 1. habituality 2. compensation 3. application of law, legal principles, practice or procedure 4. attorney-client relationship



The practice of law is a mere privilege. Conferred only for merit, earned by hard study, learning and good conduct. But in a sense a right: not lightly or capriciously restricted

The unification of the bar is Constitutional.



Not practice of law: writing law books/ legal articles, teaching

(1) It does not impinge upon freedom of association because it does not make the lawyer part of any group of which he is not already a member and simply provides an official organization for the welldefined but unorganized and incohesive group of which every lawyer is already a member.

 Ulep v Legal Clinic, Inc (1993) The Legal Clinic was enjoined from issuing advertisements representing itself as “practicing law” as the Clinic was not properly a legal firm.

STATE REGULATION OF THE LEGAL PROFESSION (BY THE SC AND CONGRESS)

 Const art. VIII, sec. 5(5). The SC shall have the following powers: (5) Promulgate rules concerning… practice and procedure in all courts, the admission into the practice of law, the Integrated Bar….  Const art. XII, sec. 14. …The practice of all professions in the Phils shall be limited to Filipino citizens, save in cases prescribed by law.

(2) The IBP’s fees are inherent in the power to regulate the Bar. They are a proper exercise of police power. (3) Freedom of speech is not impaired because the exaction of fees is a valid exercise of the SC’s regulatory powers. Integration of the bar was found to be called for at the time (1973) because of the beneficial experience foreign jurisdictions upon such integration and because of the overwhelming national demand of Filipino lawyers made evident in by official statistics.  In re Cunanan (1954) RA 972, or the Bar Flunkers Act of 1953, was declared partially unconstitutional as it encroached upon the powers granted by the Constitution to the SC in determining the admission of bar examinees to the bar by usurping such power through a legislative act.

Practice of law was defined as “any activity, in or out of court, which requires the application of law, legal procedures, knowledge, training and experience.” The advertisements regarding secrete marriages, divorce, annulment, absence, and visa were understood to be representing the legal clinic as tendering legal advise to clients. The Court could not believe that information was simply provided and that the clinic did not engage in advisory or diagnostic services.  Cayetano v. Monsod (1991) F: The SC held that Monsod satisfied the qualification of 10 year practice of law demanded by the position of COMELEC chairperson to which he had been nominated because practice of law means any activity, in or out of the court, which requires the application of law, legal procedure, knowledge, training and experience. Monsod had worked as an economist, had been the CEO of a bank and had been a member of the ConCom 0f 1986, all activities which constituted practice of law.

2

SIGMA LEGIS COPY

THE LEGAL PROFESSION

LEGAL PROFESSION & ETHICS H: Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge and training and experience. It is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill.

2. 3. 4. 5. 6.

Monsod after passing the bar, worked in his father’s firm for 1 year, then worked as an operations officer in the World Bank Group, then a chief executive officer with the Meralco Group, then a legal and economic consultant, then a National Chairman for NAMFREL, member of the Davide Commission and a member of the Constitutional Commission.

7. 8.

Padilla, Dissenting Practice of law-exercise or pursue an employment or profession, actively, habitually, repeatedly or customarily. There must be continuity or a succession of acts. Commission on Appointments several factors to determine “practice of law”: (1) Habituality -customarily or frequently holding one’s self out to the public as a lawyer (2) Compensation- his professional services are available to the public for compensation, as a service of his livelihood or in consideration of his said service. (3) Application of law, legal principles, practice, or procedure-calls for legal knowledge, training and experience. (4) Attorney-client relationship- hence, teaching law or writing law books are not considered a “practice of law”. Monsod did not perform any of the tasks which constitute the practice of law HABITUALLY for at least 10 years prior to his appointment. Petition GRANTED REQUIREMENTS FOR ADMISSION TO THE PRACTICE OF LAW IN A NUTSHELL Requirements 1. Citizenship

 Rule 138, sec. 2. Requirements for all applicants for admission to the bar.—Every applicant for admission as a member of the bar must be a citizen of the Philippines, at least twenty-one years of age, of good moral character, and a resident of the Philippines; and must produce before the Supreme Court satisfactory evidence of good moral character, and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines. LEGAL EDUCATION 1.

PRE-LAW

 Rule 138, sec. 6. Pre-Law.—No applicant for admission to the bar examination shall be admitted unless he present a certificate that he has satisfied the Sec. of Education that, he began the study of law, he had pursued and satisfactorily complete in an authorized and recognized university or college, requiring for admission thereto the completion of a four-year high school course, the course of study prescribed therein for a bachelor’s degree in arts or sciences with any of the following subjects as major or field of concentration: political science, logic, english, spanish, history and economics.  In re Telesforo Diao (1963) The SC ordered the Clerk to strike Diao’s name from the roll of attorney’s as he was not qualified to take the bar exams due to his false representations. He started studying law six months before obtaining his arts degree. 2. LAW PROPER  Rule 138, sec. 5. Additional Requirements for other applicants.—All applicants for admission…shall, before being admitted to the examination, satisfactorily show that they have regularly studied law for four years, and successfully complete all prescribed courses, in a law school or university, officially approved and recognized by the Sec. of Education. The affidavit of the candidate, accompanied by a certificate from the university or school of law, shall be filed as evidence of such facts, and further evidence may be required by the court. No applicant shall be admitted to the bar examinations unless he has satisfactorily completed the following course in a law school or university duly recognized by the government: civil 3

SIGMA LEGIS COPY

Interpreted in the light of the various definitions of the term “practice of law”, particularly the modern concept of law practice, and taking into consideration the liberal construction intended by the framers of the constitution, Atty. Monsod’s past work experience as a lawyer-economist, lawyer-manager, lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator verily more than satisfy the constitutional requirement.

Residence 21 years of age good moral character no charges against him involving moral turpitude Legal Education a. Pre-Law b. Law Proper Bar Examination Lawyer’s Oath

LEGAL PROFESSION & ETHICS

CITIZENSHIP  Const. art. XII, sec. 14. The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law.

for at least 10 days before the beginning of the examination.  Rule 138, sec. 9. Examination; subjects.—Applicants, not otherwise provided for in sections 3 and 4 of this rule, shall be subjected to examinations in the following subjects: Civil Law; Labor and Social Legislation; Mercantile Law; Criminal Law; Political Law (Constitutional Law, Public Corporations, and Public Officers); International Law (Private and Public); Taxation; Remedial Law (Civil Procedure, Criminal Procedure, and Evidence); Legal Ethics and Practical Exercises (in Pleading and Conveyancing).

 In re Arturo Castillo Reyes (1993) Petitioner’s name was struck from the roll of attorney’s due to the following facts: graduated from UP College of Law in 1939; passed the bar in 1939; inducted to and served in the US Armed Forces in the Far east during WWII and thus became eligible for citizenship under the 1990 US Immigration Act; became a naturalized citizen of the US in 1993. Likewise, his petition to continue handling cases in his private practice of law. Only Filipino citizens may practice law in the Philippine. This requirement is prescribed by the Constitution, XII 14, and the RoC, 2 Rule 138.

 Rule 138, sec. 10. Bar examination, by questions and answers, and in writing.—Persons taking the examination shall not bring papers, books or notes into the examination rooms. The questions shall be the same for all examinees and a copy thereof, in English or Spanish, shall be given to each examinee. Examinees shall answer the questions personally without help from anyone. Upon verified application made by an examinee stating that his penmanship is so poor that it will be difficult to read his answers without much loss of time, the Supreme Court may allow such examinee to use a typewriter in answering the questions. Only noiseless typewriters shall be allowed to be used.

Ratio: “Since one of the solemn duties of an attorney is to maintain allegiance to the RP and to support the Constitution and obey the laws of the Phils (20(a) Rule 138 RoC), it follows that a Filipino citizen admitted to the Phil Bar must maintain such citizenship to remain qualified for the practice of law in this country.”

The committee of bar examiners shall take such precautions as are necessary to prevent the substitution of papers or commission of other frauds. Examinees shall not place their names on the examination papers. No oral examination shall be given.

BAR EXAMINATION  Rule 138, Sec. 7. Time for filing proof of qualifications.—All applicants for admission shall file with the clerk of the Supreme Court the evidence required by section 2 of this rule at least 15 days before the beginning of the examination. If not embraced within sections 3 and 4 of this rule they shall also file within the same period the affidavit and certificate required by section 5, and if embraced within sections 3 and 4 they shall exhibit a license evidencing the fact of their admission to practice, satisfactory evidence that the same has not been revoked, and certificates as to their professional standing. Applicants shall also file at the same time their own affidavits as to their age, residence, and citizenship.  Rule 138, sec. 8. Notice of applications.— Notice of applications for admission shall be published by the clerk of the Supreme Court in newspapers published in Pilipino, English and Spanish,

 Rule 138, sec. 11. Annual examination.—Examinations for admission to the bar of the Philippines shall take place annually in the City of Manila. They shall be held in four days to be designated by the chairman of the committee on bar examiners. The subjects shall be distributed as follows: 1st day: Political and International Law (morning) and Labor and Social Legislation (afternoon); 2nd day: Civil Law (morning) and Taxation (afternoon); 3rd day: Mercantile Law (morning) and Criminal Law (afternoon); 4th day: Remedial Law (morning) and Legal Ethics and Practical Exercises (afternoon).  Rule 138, Sec. 12. Committee of examiners. — Examinations shall be conducted by a committee of bar examiners to be appointed by the Supreme Court. This committee shall be composed of a Justice of the Supreme Court, who shall act as chairman, and who shall be designated by the court to serve for one year, and eight members of the bar of the Philippines, who shall hold office for a period of one year. The names of the members of this committee shall be published in each volume of the official reports. 4

SIGMA LEGIS COPY

law, commercial law, remedial law, criminal law, public and private international law, political law, labor and social legislation, medical jurisprudence, taxation and legal ethics.

LEGAL PROFESSION & ETHICS

 Rule 138, Sec. 14. Passing average.—In order that a candidate may be deemed to have passed his examinations successfully, he must have obtained a general average of 75 % in all subjects, without falling below 50 % in any subject. In determining the average, the subjects in the examination shall be given the following relative weights: Civil Law, 15 %; Labor and Social Legislation, 10 %; Mercantile Law, 15 %; Criminal Law; 10 %; Political and International Law, 15 %; Taxation, 10 %; Remedial Law, 20 %; Legal Ethics and Practical Exercises, 5 %.  Rule 138, sec. 15. Report of the committee; filing of examination papers.—Not later than February 15th after the examination, or as soon thereafter as may be practicable, the committee shall file its reports on the result of such examination. The examination papers and notes of the committee shall be fixed with the clerk and may there be examined by the parties in interest, after the court has approved the report.  Rule 138, Sec. 16. Failing candidates to take review course.—Candidates who have failed the bar examinations for three times shall be disqualified from taking another examination unless they show to the satisfaction of the court that they have enrolled in and passed regular fourth year review classes as well as attended a pre-bar review course in a recognized law school. The professors of the individual review subjects attended by the candidates under this rule shall certify under oath that the candidates have regularly attended classes and passed the subjects under the same conditions as ordinary students and the ratings obtained by them in the particular subject.  In re Adriano Hernandez (1993) The SC allowed Hernandez to take the 1993 Bar Exams of the Phil despite having graduated from the Columbia Law School and having passed the bar exam in the State of New York. He had taken review classes in the Ateneo de Manila Law School.

The SC, however, pointed out that beginning 1994, graduates of foreign law school would not be allowed to take the bar. An applicant should study law in a local school and follow the requirements of 5-6 Rule 138, RoC.  In re Amparo (1975) Amparo was caught reading piece of paper inside the examination room in the course of the 1974 bar exam in criminal law. He admitted having in his possession the paper that carried the table of penalties explaining that the paper fell from his pocket when he took his handkerchief from his pocket to wipe his perspiration. He was found guilty of bringing notes into the examination room in violation of 10 Rule 138 RoC and of attempted cheating. As he failed the exam that year he was disqualified from taking the 1975 bar exam. GOOD MORAL CHARACTER NOTES (Agpalo) Good Moral Character  No definition and criteria in law for “good moral character” 

Moral character is what a person really is (corresponds to objective reality) while good reputation is the opinion generally entertained of him, the estimate in which he is held by the public in the place where he is known (subjective).



Not enough that conduct merely enables a person to escape the penalty of criminal law.



Justice Felix Frankfurter: moral character = qualities of truth-speaking, a high sense of honor, full candor, intellectual honesty, and the strictest observance of fiduciary responsibility



Good moral character is the absence of a proven conduct or act which has been historically and traditionally considered as a manifestation of moral turpitude. The act or conduct showing moral turpitude need not amount to a crime; and even if it does constitute an offense, a conviction upon a criminal charge is not necessary to demonstrate bad moral character although it may show moral depravity.

DISCLOSURE OF INVOLVEMENT IN ANY CRIMINAL CASE NOTES (Agpalo) 5

SIGMA LEGIS COPY

 Rule 138, Sec. 13. Disciplinary measures.—No candidate shall endeavor to influence any member of the committee, and during examination the candidates shall not communicate with each other nor shall they give or receive any assistance. The candidate who violates this provision, or any other provision of this rule, shall be barred from the examination, and the same to count as a failure against him, and further disciplinary action, including permanent disqualification, may be taken in the discretion of the court.

LEGAL PROFESSION & ETHICS an applicant must show that no charges against him involving moral turpitude, have been filed or pending in court in the Philippines



the concealment or withholding from the court of the fact that an applicant has been charged with or indicted for an alleged crime is a ground for disqualification



a lawyer’s name may not be stricken off from the roll of attorneys by reason of alienage, noncompletion of the prescribed course of study or bad moral character in the absence of clearly preponderant evidence that he did not, in fact, possess the necessary qualifications at the time of his admission.

No charges involving moral turpitude are filed against him/her or pending in court  Question of moral turpitude is for SC to decide. Which is why applicants are required to disclose any crime which they have been charged. Concealment or withholding from the court information about charges and indictments is a ground for disqualification of applicant or for revocation of license. Even if the crime concealed does not involve moral turpitude, the act of concealment makes him/her unfit to be a lawyer. 



Applicant assumes burden of proof to establish qualifications in asking admission. But after having presente prima facie evidence, burden to overcome the prima facie showing shifts to those objecting his/her admission. That the bar examination committee has passed upon the applicant’s qualification will not preclude judicial inquiry on the same question raised in disbarment.



initiators. To prove that he was of good moral character, he presented 15 certifications of such and also submitted that he and his co-accused had established in cooperation with the victim’s family, a scholarship foundation in honor of the hazing victim. The SC granted Argosino’s petition. LAWYER’S OATH I _____ , do solemnly swear that I will maintain allegiance to the RP: I will support and defend its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood nor consent to its commission; 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 not delay any man’s cause 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 court as to my clients; and I will impose upon myself this obligation voluntarily, without any mental reservation or purpose of evasion. So help me God. WHO ELSE MAY PRACTICE LAW General Rule: Only Members of the Bar  Rule 138, Sec 1. 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. Exception 1: Law Student Practice Rule  Rule 138-A—ANNEXED Exception 2: Agent NOTES (Agpalo)

Lawyer’s name may not be stricken off the roll of attorneys by reason of (1) alienage, (2) non-completion of the prescribed course of study or (3) bad moral character in the absence of clearly preponderant evidence that he did not possess necessary qualifications at the time of admission. Burden of proof—complainant.



Metropolitan/ Municipal Trial Court: one may be represented by an agent: In such cases, no attorney-client relationship exists; not habitual; locality where licensed member of bar is not available; person/resident of good repute for probity and ability to aid defendant; NOT IN ANY OTHER COURT



Supreme Court can validly authorise a layman to represent litigant in court

 In re Al Argosino (1997) Al Argosino passed the 1993 bar examination. His oath taking was deferred due to his previous conviction for Reckless Imprudence Resulting to Homicide for the death of a neophyte during fraternity initiation in which he was one of the



Question: Can legislature can permit by law a layman to appear on another’s behalf in court or administrative tribunals. Yes, in cadastral courts, NLRC ok; otherwise NO



3 limitations: 6

SIGMA LEGIS COPY



LEGAL PROFESSION & ETHICS 1. 2. 3.

layman should confine adversarial contentions not habitually rendered not charge for payment

work to non-

Rule 115 provides that an accused may waive his right to counsel but if he cannot protect his rights without the assistance of a counsel, the Court should advise him to secure a counsel de parte or appoint a counsel de officio to represent him.

Exception 3: Litigation by Party CODE OF PROFESSIONAL RESPONSIBILITY NOTES (Agpalo) History of the Development of Ethical Standards for Lawyers  13th and 14th century: Requirement of the lawyer’s oath and the statement of his duties 

1917: The Philippine Bar adopted, as its own, Canons 1 to 32 of the Canons of Professional Ethics of the American Bar Association. 1946: It again adopted, as its own, Canons 33 to 47 of the Canons of Professional Ethics of the American Bar Association



1980: The Integrated Bar of the Philippines adopted a proposed Code of Professional Responsibility which it later submitted to the Supreme Court for approval



June 21, 1988: The Supreme Court promulgated the Code of Professional Responsibility. The Code consists of 22 Canons and 77 Rules, which are divided into 4 chapters namely: (1) The Law and Society; (2) The Lawyer and the Legal Profession; (3) The Lawyer and the Courts; and (4) The Lawyer and the Clients.



The Code is binding upon all lawyers and failure to live up to any of its provision is a ground for disciplinary action.

NOTES (Agpalo) Necessity of representation by counsel  In a democratic and civilized country where the rights of a person are determined in accordance with established rules, the employment of a person acquainted with those rules becomes a necessity both to the litigants and to the Court. A party litigant needs the assistance of counsel in all proceedings, administrative, civil or criminal. When appearance by counsel not obligatory 1. In a Municipal Trial Court, a party may conduct his litigation in person or with the aid of a friend appointed by him for that purpose or with an aid of an attorney. 2.

In the RTC and Appellate Courts, a party in a civil suit may conduct his litigation either personally or by attorney unless the party is a juridical person.

3. And even if he has chosen to appear by counsel, he may at any time dispense with the services of his lawyer and prosecute or defend his case personally. Waiver to right of counsel in criminal proceedings The right to counsel of an accused is absolute or immutable. HOWEVER, his option to secure the services of counsel de parte is not absolute. The trial court may restrict his option to retain a counsel de parte if a) the accused insists on an attorney he cannot afford b) chosen counsel is not a lawyer or c) the attorney declines to represent the accused for a valid reason, in which case the trial court can appoint his counsel de oficio to represent him. Sec 1 (c) of

Nature of Office of Attorney  The title “attorney” is reserved to those who, having obtained the necessary degree in the study of law, and passed the bar examinations, have been admitted to the Integrated Bar of the Philippines and remain members thereof of good standing; and it is they only who are authorized to practice law in the Philippines.  An attorney is more than a mere agent because a) he possesses special powers of trust and confidence reposed in him by his client b) he is as independent as the judge c) his powers are entirely different and far superior to those of an ordinary agent.

7

SIGMA LEGIS COPY

 Rule 138, Sec. 34. By whom litigation conducted.—In the court of a justice of the peace (now, MTC) a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, 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.

LEGAL PROFESSION & ETHICS He is a public officer although he is not an officer in the constitutional or statutory meaning of the term. He occupies a quasi-judicial office because he is in fact an officer of the court and thus, is subject to the disciplinary authority of the court and to its orders and directives with respect to his relation to the court as well as to his client.

Privileges of attorney - A lawyer has the privilege and right to practice law during good behavior before any judicial, quasi-judicial or administrative tribunal. -

-

An attorney enjoys the presumption of regularity in the discharge of his duty. (i.e. He is immune, in the performance of his obligation to his client, from liability to a third person insofar as he does not materially depart from his character as a quasi-judicial officer.) There are also privileges inherent in his status as a quasi-judicial officer. (i.e. the law makes his passing the bar examination equivalent to a first grade or second grade civil service eligibility.)

Duties of Office  Rule 138, sec. 20. Duties of attorneys.--It is the duty of an attorney: a) To maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines; b) To observe and maintain the respect due to the courts of justice and judicial officers; c) To counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law; d) 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; e) To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client's business except from him or with his knowledge and approval; f) To abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged; g) 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; h) Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed; i) 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. Note: 

The duties of an attorney may be classified into those, which he owes to the court, to the public, to the bar and to his client.



The duties may also be classified into public (operating as a faithful assistant of the court in search of a just solution to disputes), private (an attorney operating as a trusted agent of his client), and personal obligations (an attorney operating as a self-employed businessman).



The rules and ethics of the legal profession demand that an attorney subordinate his personal and private duties to those, which he owes, to the court and to the public. His obligation to his client, in turn, takes precedence over his duties to himself.

Chapter 1 The Lawyer and Society CANON 1 PROMOTE & RESPECT LAW & LEGAL PROCESSES In General  Canon 1. A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal process. Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. Rule 1.02. A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal profession. Rule 1.03. A lawyer shall not, for any corrupt motive or interest, encourage any suit or delay any man’s cause. Rule 1.04. A lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement.  Zaldivar v. Gonzales (1988) F: The SC indefinitely suspended Tanodbayan Raul Gonzales form the practice of law upon a finding that he was guilty of contempt of court and of gross misconduct as an officer of the court and member of the Bar. Gonzales filed a motion for 8

SIGMA LEGIS COPY



LEGAL PROFESSION & ETHICS

H: The SC has plenary disciplinary authority over attorneys. This authority stems from the Court’s constitutional mandate to regulate admission to the practice of law, which includes authority to regulate the practice of law. It is also an inherent power incidental to the proper administration of justice and essential to an orderly discharge of judicial functions. Moreover, the SC has power to punish for contempt anyone connected with a case at bar to protect it from improper interference with due administration of justice. This is not dependent upon the complaint of any of the parties. The power to punish for contempt and power to discipline attorneys are two inherent powers of the Court. With respect to lawyers, the disciplinary powers of SC is broader in scope than the power to punish for contempt since it may cover any misconduct other than contempt. The power to punish for contempt however may apply to both lawyers and non-lawyers. Although the Court, in deciding Gonzales’ case, may act as offended party, prosecutor and arbiter at the same time, it is exercising its powers. As held in In Re Almacen, disciplinary proceedings are sui generis (one of its kind). It is neither purely civil nor purely criminal since it is an investigation as to whether the attorney is still fit to be allowed the privilege as such. Public interest is its primary objective. On Gonzales’ principal defense of freedom of speech: Freedom of expression and of speech is not absolute and needs an occasion to be adjusted to and accommodated with the requirements of equally important public interests—one of which is the maintenance of the integrity and orderly functioning of the administration of justice. There is no antimony between free expression and the integrity of the system of administering justice. Both are indispensable to a free society. However, a lawyer’s right of free expression may have to be more limited than that of a layman. Moreover, as special prosecutor, he owes duties of fidelity and respect to RP and SC more than a private lawyer. Besides, the

nature and manner of Gonzales’ criticism exceeded the bounds of decency and propriety. RULE 1.01 NO UNLAWFUL, DISHONEST, IMMORAL OR DECEITFUL CONDUCT  Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. NOTES (Agpalo) Unlawful conduct  act or omission which is against the law Dishonest act  act of lying or cheating Immoral or deceitful conduct  one that involves moral turpitude. Gross immorality  A grossly immoral act is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree. (ex. Adultery) 

Mere intimacy between a man and a woman, either of whom possesses no legal impediment to marry, voluntarily carried on and devoid of any deceit on the part of the lawyer, is neither so corrupt nor unprincipled as to warrant imposition of disciplinary sanction, even if the woman gives birth to a child, so long as he admits paternity. Disowning child or refusing to support it may be ground for disciplinary action.



Cohabitation per se is not immoral, depending on surrounding circumstances.



The question as to whether an act is so unprincipled or so disgraceful as to be reprehensible to a high degree presents a more difficult problem for the answer may, to some extent, depend upon the prejudice, caprice and bias of the court and the general concept of morality prevailing at the time.



It is not necessary that there be prior conviction for a lawyer’s act to be grossly immoral; it is enough that the act charged, in the language of the law, constitute a crime.



Even if evidence is not sufficient to hold lawyer liable for gross immorality, reprimand may be proper where evidence shows failure to comply with rigorous standards of conduct appropriately required from the members of the Bar and officers of the court. As officers of the court, 9

SIGMA LEGIS COPY

reconsideration which made the following statements, which were unrelated to legal issue: that he was twice approached by a leading member of SC to “go slow” on the accused and “not to be too hard;” that he was approached and asked to refrain from investigating the COA reports on illegal disbursements in the SC; that he was called over the phone several times by a leading member of SC and was asked to dismiss cases against two members of SC. The Court held that:

LEGAL PROFESSION & ETHICS

Conviction of a crime involving moral turpitude  Moral turpitude means anything which is done contrary to justice, honesty, modesty or good morals, or to any act of vileness, baseness or depravity in the private and social duties that a man owes his fellowmen or to society, contrary to the accepted rule of right and duty between man and man. 

In general, all crimes of which fraud or deceit is an element or those which are inherently contrary to rules of right conduct, honesty or morality in a civilized community involve moral turpitude.

Fraudulent transactions  Commission of fraud or falsehood show that the lawyer is unfit to manage the legal business of others, unworthy of public confidence and devoid of high sense of morality and fair dealing expected and required of a member of the bar. (ex. misappropriating money, falsifying power of attorney to collect money, etc...) (Aguirre) Immoral Conduct 

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

Moral Turpitude  includes any act done contrary to justice, honesty, modesty or good morals Conduct  as used in this rule is not limited to conduct exhibited in connection with the performance of professional duties.  Barrios v. Martinez (2004) Violation of BP 22 is a crime involving moral turpitude. Moral turpitude “includes everything which is done contrary to justice, honesty, modesty, or good morals”. It involves an act of baseness, vileness, or depravity in the private duties which a man owed his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman, or conduct contrary to

justice, honesty, modesty, or good morals. The act of a lawyer in issuing a check without sufficient funds to cover the same constitutes such willful dishonesty and immoral conduct as to undermine the public confidence in law and lawyers. The Court also noted that disbarment is not tantamount to a deprivation of property without due process of law. The purpose of a proceeding for disbarment is “to protect the administration of justice by requiring that those who exercise this important function shall be competent, honorable and reliable.” A proceeding for disbarment is not in any sense a civil action. Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are prosecuted solely for the public welfare and for preserving courts of justice from the official ministrations of persons unfit to practice them. Furthermore, the Court held took notice of the fact that it took an inordinate length of time for the respondent to responding to the Court’s requirement that he submit his Comment on the original petition to disbar him. He squandered away 7 years to have his day in court. These acts constitute a willful disobedience of the lawful orders of the Court, which under Sec. 27 of Rule 138 is in itself a cause sufficient for disbarment.  Ui v. Bonifacio (2000) The SC found that the imprudence of an attorney who married a man already previously married (without initially knowing that he was in fact married but, upon acquiring such knowledge, cut off all ties with him) did not constitute immoral conduct sufficient for her disbarment. The Court emphasized that the practise of law is a privilege which can be revoked once a lawyer violates his oath and that the dictates of legal ethics and the requisite of good moral character in the admission to the practise of law must be continuous as a requirement to the enjoyment of the privilege of the practise of law. Furthermore lawyers, as keepers of public faith, are burdened with a higher degree of social responsibility and thus must handle their personal affairs with grater caution. The respondent was imprudent in the sense that she should have investigated the fact that the man with whom she had relations was married. Nevertheless, the fact that she distanced herself from him shows that she displayed no moral indifference. The Ratio decidendi of the Court is that the requisite of good moral character in the admission to the practise of law must be continuous as a requirement to the enjoyment of the privilege of the practise of law. It is the bounden duty of lawyers to adhere unwaveringly to the highest standards of morality.  Sebastian v Calis (1999) Atty. Calis’ was found guilty of gross misconduct by engaging in unlawful, dishonest, immoral or deceitful conduct for deceiving Sebastian that he could provide her with working travel papers to the US.  Co v Bernardino (1998) The SC found Bernardino guilty of violation of Rule 1.01 of the Code for procuring personal loans through insinuations of his power as an influence peddler in the Bureau of Customs, the 10

SIGMA LEGIS COPY

lawyers must not only in fact be of good moral character but must also be seen to be of good moral character.

LEGAL PROFESSION & ETHICS

 Figueroa v. Barranco (1997) Atty. Barranco was not disbarred despite the fact that he had sexual congress with Patricia Figueroa with whom he begot a child, promised that he would marry her after he passed the bar but then married another woman. The Court held that grossly immoral conduct is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree. Mere intimacy between a man and a woman, both of whom possess no impediment to marry, voluntarily carried on and devoid of any deceit on the part of the respondent, is neither so corrupt nor so unprincipled as to warrant the imposition of disciplinary sanction against him, even if as a result of such relationship a child is born out of wedlock. The acts were consensual, as proven by the years of their amicable and intimate relations.  Castillo vda Mijares v Villaluz (1997) SC found Justice Villaluz guilty of deceitful and grossly immoral conduct for marrying Judge Castillo despite having previously been married and then subsequently marrying a third woman.  Fernandez v Grecia (1993) Atty. Grecia was guilty of violating Canon 1 by surreptitiously tearing of two pages of medical records which were evidence in a case he was handling.  In re Lontok (1992) Lontok was convicted of bigamy but was issued a pardon by the Governor General. The SC held that where disbarrment proceedings depend solely on a conviction for violation of a statute, the pardon of the crime for which the attorney had been convicted bars the administrative proceeding.  Lisazo v Amante (1991) Despite there being not attorney-client relationship between Lisazo and Amante, the SC found Atty. Amante guilty of malpractice and dishonesty in his profession for failing to return Lisazo’s money despite repeated demands.  Bautista v. Gonzales (1990) The purchase by a lawyer of his client’s property in litigation constitutes a breach of professional ethics for which a disciplinary action may be brought against him that he expressly violated the law prohibiting a lawyer from acquiring his client’s property involved in

any litigation in which he may take part by virtue of his profession (1491 CC) By failing to disclose to his client that a land had already been sold at a public auction prior to the execution of a land development agreement, Gonzales failed to live up to the rigorous standards of ethics of the law profession which place a premium on honesty and condemn duplicitous conduct. By submitting falsified documents wherein 2 signatories were made to appear as having fixed their signatures, Gonzales acted in willful disregard of his solemn duty as a lawyer to act at all times in a manner consistent with the truth.  People v Tuanda (1989) A conviction for violating a special law, BP 22 for example, is sufficient ground for finding an attorney guilty of moral turpitude and thus subject to administrative proceedings.  Cordova v Cordova (1989) The reconciliation between the Atty. husband and his wife who had initiated the administrative proceedings against him for engaging in an adulterous and clearly immoral relationship does not “wipe away the misconduct and immoral behavior.”  In re Vailoces (1982) Plenary pardon does not of itself warrant reinstatement, evidence of reformation must first be present. Vailoces was guilty of falsification of public documents. The President then granted plenary pardon. The plenary pardon does not itself warrant reinstatement. The SC found however that he had regained the trust of his fellow lawyer and thus was readmitted into the practice of law.  Arciga v. Maniwang (1981) The SC found that Atty Maniwang should not be disbarred despite having engaged in repeated acts of cohabitation with Arciga which resulted in the birth of their son and then having married another woman despite promises that he would marry Arciga.  In re Gutierrez (1962) Gonzales was convicted of murder but was then granted conditional pardon by the President. When the pardon is conditional and merely remits the unexecuted portion of the penalty, administrative proceedings cannot be automatically barred.  Piatt v Abordo (1933) Atty. Abordo was duped into buying fake opium. He sought the help of police authorities to recover his money (what an idiot!). As a general rule the SC will not assume jurisdiction over one of its officers when the alleged misconduct was performed in his personal capacity. The exception is the atty. who will be removed from office for gross misconduct not connected w/ his professional duties. 11

SIGMA LEGIS COPY

issuance of a series of bad checks and the taking of undue advantage of his position in the aforementioned government office.

LEGAL PROFESSION & ETHICS RULE 1.02. NO COUNSELING TO DEFY LAW

acting as counsel for the Centro Bellas Artes Club, an organization intending to evade the practice of law.

 Rule 1.02. A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal profession.

RULE 1.03 NO TO ENCOURAGING LAWSUITS OR PROCEEDINGS



Rule 1.02 requires that the lawyer should not promote an organization known to be violating the law nor assist it in a scheme which he knows is dishonest. He should not allow his services to be engaged by an organization whose member as violating the law, to defend them when they get caught.

 Estrada v. Sandiganbayan (2003) The SC indefinitely suspended Atty. Paguia for making claims that the justices of the Supreme Court have been participating in partisan political activity and have prejudged a case that will assail the legality of an act done by President Arroyo, that Estrada v Arroyo is a patent mockery of justice and due process, that 3 justices of Sandiganbayan made their bias manifest and are impartial against his client. The Court held that Canon 11 of the Code of Professional Responsibility mandates that a lawyer should observe and maintain the respect due to the courts and judicial officers, and insist on similar conduct by others. Paguia, in liberally imputing sinister and devious motives and questioning the impartiality, integrity and authority of the members of the Supreme Court, succeeded in seeking to impede, obstruct and pervert the dispensation of justice. Rule 13.02 of the Code of Professional Responsibility prohibits a member of the bar from making public statements on a case that may tend to arouse public opinion for or against any party. With already an earlier admonition, Paguia is indefinitely suspended for conduct unbecoming of a lawyer. Ratio Decidendi: The Supreme Court will not denounce criticism made by anyone against the Court for, if well founded can truly have constructive effects in the task of the Court, but it will not countenance any wrongdoing nor allow the erosion of our people’s faith in the judicial system, let alone, by those who have been privileged by it to practise law in the Philippines.  In re Terell (1903) Terrel was found guilty of malpractice or gross misconduct for assisting in the establishment and

 Rule 1.03. A lawyer shall not, for any corrupt motive or interest, encourage any suit or delay any man’s cause. NOTES (Agpalo) 

To stir up litigation is a crime known as “maintenance” at common law.



Among the unprofessional acts that are prohibited include: volunteering advice to bring lawsuit (except when ties of blood, relationship, or trust make it his/her duty to do so); hunting up defects in titles or other causes of action and informing thereof in order to be employed to bring suit or collect judgment, or to breed litigation by seeking out claims of personal injuries or those having any other grounds of action in order to secure them as clients; employing agents or runners or agents for like purposes; paying reward (directly or indirectly) to those who bring or influence in bringing such cases to his office; rewarding policemen, court or prison officials, physicians, hospital attaches or others who may succeed, under the guise of giving disinterested friendly advice, in influencing the criminal, the sick and the injured, the ignorant or others, to seek professional services; searching unknown heirs and soliciting their employment of him; initiating a meeting of the members of club and inducing them to organize and contest legislating under his/her guidance; purchasing notes to collect them by litigation at a profit; furnishing credit reports in expectation of possible employment; agreeing with a purchase of future interests to invest therein in consideration of his services. The purpose of prohibiting these acts is to prevent ambulance chasing (solicitation of almost any kind of legal business by laymen employed by an attorney for the purpose or by the attorney himself). Ambulance chasing is prohibited because it stirs up litigation with resulting burdens on courts and the public; supports perjury, the defrauding of innocent persons by judgments, upon manufactured causes of actions and the defrauding of injured persons having proper causes of action but ignorant of legal rights and court procedure by means of contracts which retain exorbitant expenses and by settlement made for quick returns of fees against the rights of the injured persons.

 Saburnido v. Madrono (2001) F: Respondent Madroño was a judge of the Municipal Circuit Trial Court. Prior to the present case, Venustiano Saburnido had filed charges of grave threats and acts 12

SIGMA LEGIS COPY

NOTES (Agpalo)

LEGAL PROFESSION & ETHICS

H: Atty. Florante Madroño should be not be disbarred but he does merit a suspension of 1 year. A lawyer may be disciplined for any conduct, in his professional or private capacity, that renders him unfit to continue to be an officer of the court. Canon 7 of the Code of Professional Responsibility commands all lawyers to, at all times, uphold the dignity and integrity of the legal professional. Clearly, Atty. Madroño’s act of filing multiple complaints against the Saburnidos reflects on his unfitness to be a member of the legal profession. His act evinces vindictiveness, a decidedly undesirable trait whether in a lawyer or another individual. The supreme penalty of disbarment is meted out only in clear cases of misconduct that seriously affect the standing and character of the lawyer as an officer of the court. Suspension is a sufficient sanction against respondent. It is not primarily intended as a punishment but as a means to protect the public and the legal profession. RULE 1.04 ENCOURAGE CLIENT TO AVOID CONTROVERSY  Rule 1.04. A lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement. NOTES (Agpalo) 

The function of a lawyer is not only to conduct litigation but to avoid it where possible, by advising settlement or withholding suit. He/she must act as mediator for compromise rather than an instigator and conflict. What sometimes beclouds a lawyer’s judgment as to what is best for his client is his/her eye on the attorney’s fees

which are often considerably less when the cause is amicably settled. The problem of conflict of interests must be resolved against self-interest.  Castaneda v Ago (1975) Atty. Luison was found guilty of instigating controversy and being a predator of conflict for maneuvering for 14 years to doggedly resist the execution of the court’s decision thru manifold tactics from one court to another. SPECIAL RULES WITH RESPECT TO NOTARIAL PRACTICE 

2004 Rules on Notarial Practice—ANNEXED

 Spouses Santuyo v. Hidalgo (2005) The SC found a notary public negligent in his duty for allowing office secretaries to perform his notarial functions, i.e., safekeeping of his notarial dry seal and notarial register. The Court held that “considering that the responsibility attached to a notary public is sensitive, respondent should have been more discreet and cautious in the execution of his duties as such and should not have wholly entrusted everything to the secretaries; otherwise he should not have been commissioned as notary public.”  Sicat v. Ariola (2005) The SC disbarred Atty. Gregorio Ariola from the practice of law for violating Rule 1.01 of Canon 1 by notarizing an SPA purportedly executed by a certain Benitez at a time when Benitez was already dead. The Court held that a notary public should not authenticate documents unless the persons who signed them are the very same persons who executed them and personally appeared before them to attest to the contents and truth of what are stated therein. (Zaballero v. Atty. Montalvan) Notarization is not an empty, meaningless and routinary act. It converts a private document into a public instrument, making it admissible in evidence without the necessity of preliminary proof of its authenticity and due execution.  Nunga v. Viray (1999) The SC found Victor Nunga’s acts to sufficiently constitute grounds for suspension. He acted as a public notary in a transaction where a house (owned by a bank to which he was stockholder and legal counsel) was sold without bidding to his son and was then mortgaged. The SC found that he was not licensed as a notary during this entire time.  Flores v Chua (1999) The SC found attorney Chua liable for misconduct (1) for notarizing a document that had not been signed in his presence then passing of the document to the signatory’s widowed wife as a legitimate document. (2) Misrepresenting himself as 13

SIGMA LEGIS COPY

unbecoming a member of the judiciary against Madroño for pointing a high-powered firearm at him and for allowing other persons to take confiscated smuggled goods deposited in his court. Another case was filed by the assistant provincial prosecutor against the judge for reducing bail in a criminal case without notice to the prosecution. For these charges, Madroño was dismissed from the judiciary and his retirement benefits were forfeited. In retaliation, the former judge filed 4 charges against the spouses namely: serious irregularity, falsification, evasion thru negligence and violation of the Omnibus Code. Spouses Saburnido filed this administrative complaint for disbarment against Atty. Madroño. They alleged that respondent has been harassing them by filing numerous complaints against them as well as acts of dishonesty.

LEGAL PROFESSION & ETHICS

CANON 2 PROVIDE EFFICIENT SERVICES

AND

CONVENIENT

LEGAL

 Canon 2. A lawyer shall make his legal services available in an efficient and convenient manner compatible with the independence, integrity and effectiveness of the profession. Rule 2.01. A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed. Rule 2.02. In such cases, even if the lawyer does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary to safeguard the latter’s rights. Rule 2.03. A lawyer shall not do or permit to be done any act designed to primarily solicit legal business. Rule 2.04. A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant. NOTES (Agpalo) 

The necessity and the right to legal representation give rise to the correlative duty of lawyers to make efficient legal services conveniently available. A wide gap between the need for legal services and its satisfaction exists for two reasons: (1) poverty and the inability to pay; (2) ignorance of the need and where to find a competent and dependable lawyer. There is also the fear that technicalities of the law will cause delay and the fear of lawyers who overcharge 

Legal services should be available not only to those caught up in litigation but those who need advice to avoid litigation.

RULE 2.01 NOT TO REJECT OR OPPRESS THE DEFENSELESS OR OPPRESSED  Rule 2.01. A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed.  Sec 1 Art 1 IBP Handbook. Guidelines Governing the establishment and Operation of Legal

Aid Office. Legal aid is not a matter of charity. It is a means for the correction of social imbalance that may and often do lead to injustice, for which reason it is a public responsibility of the Bar. The spirit of public service should, therefore, underlie all legal aid offices. The same should be administered to indigent and deserving members of the community on all cases, matters and situations in which legal aid may be necessary to forestall an injustice.  Rule 14.03. A lawyer may not refuse to accept representation of an indigent unless: (a) he is in no position to carry out the work effectively or competently or (b) he labours under a conflict of interest between him and the prospective client or between a present client and the prospective client  Ledesma v Climaco (1974) Ledesma, who was appointed Election Registrar of his municipality was not excused from acting as counsel in criminal proceedings that had started that same year. Moreover, to avoid the frustration of the case, especially such as where the defendants are indigent, a lawyer may be required to act as a counsel de oficio. The fact that his services were rendered without renumeration should not occasion a diminution of his zeal. Most importantly, the Constitution blessed the accused with the right to be heard by himself and by counsel. This manifests the indispensible role of a lawyer in the defense of the accused. NOTES (Agpalo) 

This rule stems from one of the obligations incident to the status and privileges of a lawyer which is to represent the poor and the oppressed in the prosecution of their claims or the defense of their rights. The court is empowered to require a lawyer to render legal service (to designate him/her as counsel de oficio for an accused if the latter is unable to employ counsel de parte).



The Integrated Bar of the Philippines through its Committee on Legal Aid has established legal aid offices throughout the country. Its objective is to provide on a nationwide basis legal services in favor of the poor segment of society. Their policy is that legal aid is not a matter of charity. It is a means for the correction of social imbalance that may and often do lead to injustice, which makes it a public responsibility of the Bar.

RULE 2 NOT TO REFUSE TO GIVE LEGAL ADVISE  Rule 2.02. In such cases, even if the lawyer does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary to safeguard the latter’s rights. 14

SIGMA LEGIS COPY

counsel through prematurely publishing a portion of a questionable decision on appeal.

LEGAL PROFESSION & ETHICS NOTES (Agpalo)

NOTES (Agpalo)





RULE 2.03 NO SOLICITATION  Rule 2.03. A lawyer shall not do or permit to be done any act designed to primarily solicit legal business.  Rule 138, sec. 27. A member of the bar may be disbarred or suspended from his office as attorney by the SC for any… malpractice…. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. NOTES (Agpalo) 

This is a prohibition on professional flaunting. Examples of such are lawyers who recommend their employment or the employment of a partner, associate, or member of his legal staff to a non-lawyer who has not sought his legal advice regarding employment of a lawyer or lawyers who pay a person or organization to recommend or secure their employment of a client; rewards a person or organization for having made a recommendation that resulted in his employment by a client.

RULE 2.04 NO RATES OTHER THAN CUSTOMARILY CHARGED  Rule 2.04. A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant.

What the rule prohibits is the competition in the matter of charging professional fees for the purposed of attracting clients in favor of the lawyer who offers lower rates. The rule does not prohibit a lawyer from charging a reduced fee or none at all to an indigent or to a person who would have difficulty paying the fee usually charged for such services.

CANON 3: INFORMATION ON LEGAL SERVICES THAT IS TRUE, HONEST, FAIR AND DIGNIFIED  Canon 3. A lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts. Rule 3.01. A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, selflaudatory, or unfair statement or claim regarding his qualifications or legal services. Rule 3.02. 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 3.03. 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 law concurrently. Rule 3.04. A lawyer shall not pay or give anything of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business. NOTES (Agpalo) 

Although advertising is not really malum in se here are some reasons why it is prohibited: member of honourable profession primarily for public service; different from shopkeeper who advertises to have private gain; commercialises the profession, lowers public confidence, lessens ability to render high character of service; involves self-praise and puffing (conscientious and ethical are at the mercy of braggarts); assertion of fraudulent claims, corruption, attacks on marital stability; may increase lawsuits and results in needless litigation. Instead, lawyers should employ methods compatible with the traditional dignity and in the maintenance of correct professional standards. Best advertising is a well-merited reputation for professional capacity. 15

SIGMA LEGIS COPY

A valid reason to refuse is when the lawyer is is not in a position to carry out the work effectively and competently. However he shall still render legal advice (such as those pertaining to preliminary steps a person can take). But he shall refrain from giving legal advice if the reason for not accepting the case is that there involves a conflict of interest (between him and a prospective client or between a present client and a prospective client). In the case mentioned above, rendering legal advice to the prospective client will establish an attorney-client relationship between them and this will constitute a violation of the rule prohibiting a lawyer from representing conflicting interests.

LEGAL PROFESSION & ETHICS Exceptions to this rule (i.e. “advertising” which is either expressly allowed or necessarily implied by restrictions) are the following: publication in reputable law list with brief biographical and other informative data which may include name, associates, address, phone numbers, branches of law practised, birthday, day admitted to the bar, schools and dates attended, degrees and distinctions, authorships, teaching positions, associations, legal fraternities and societies, references and regularly represented clients must be published for that purpose; an ordinary, simple professional card; publication of simple announcement of opening of law firm, change of firm; telephone directory (but not under designation of special branch of law); if acting as an associate (specialising in a branch of law), may publish a brief and dignified announcement to lawyers (law list, law journal); working in a public office (which can be filled only by a lawyer); full time position as corporate counsel; if in media, those acts incidental to his practise (ie, not his own initiative); write articles for publication giving information upon the law (and not individual rights or advising through column/ TV broadcast, lest such be considered indirect advertising); if enter into other businesses (which are not inconsistent with lawyer’s duties) then it is advisable that they be entirely separate and apart such that a layman could distinguish between the two functions.

RULE 3.01. NO FALSE OR QUALIFICATIONS

UNFAIR

CLAIM

business by indirection through touters of any kind whether allied real estate firms or trust companies advertising to secure the drawing of deeds or wills or offering retainers in exchange for executorships or trusteeships to be influenced by the lawyer. Indirect advertisement for business by furnishing or inspiring newspaper comments concerning the manner of their conduct, the magnitude of the interests involved, the importance of the lawyer’s position, and all other like selflaudation, defy the traditions and lower the tone of our high calling and are intolerable.  Sec 46 Canon of Professional Ethics. Notice of specialized service—Where a lawyer is engaged in rendering a specialized legal service directly and only to other lawyers, a brief, dignified notice of that fact, couched in language indicating that it is addressed to lawyers, inserted in legal periodicals and like publications, when it will afford convenient and beneficial information to lawyers desiring to obtain such service, is not improper. NOTE: The explication of the Canon 3.01 refers itself back to the rather outdated Canon of Professional Ethics. (Prof. Jardeleza): 

In re Tagorda (1929)

F: Tagorda was suspended for soliciting business because before Tagorda’s election to the provincial board of Isabela, he used a card offering services as an attorney and a notary public free. The card also stated that he was a candidate for the provincial board. After his election, he wrote a letter to the barrio lieutenant informing him that we would continue his practice as lawyer and asking that the lieutenant transmit this information to the barrio.

REGARDING

 Rule 3.01. A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory, or unfair statement or claim regarding his qualifications or legal services.  Sec 27 Canon of Professional Ethics. Advertising, Direct of Indirect—The most worthy and effective advertisement possible, even for a young lawyer, and especially with his brother lawyers, is the establishment of a well-meritted reputation for professional capacity and fidelity to trust. This cannot be force, but must be the outcome of character and conduct. The publication or circulation of ordinary simple business cards, being a matter of personal taste or local custom, and some times of convenience is not per se improper. But solicitation of business by circulars or advertisements, or by personal relations is unprofessional. It is equally unprofessional to procure

H: Sec. 27 of the Code of Professional Ethics states that the most worthy and effective advertisement possible, is the establishment of a well-merited reputation for professional capacity and fidelity to trust. This cannot be forced but must be the outcome of character and conduct. Solicitation of business circulars or advertisement, or by personal communication or interviews not warranted by personal relations is unprofessional. Indirect advertisement for business by furnishing or inspiring newspaper comments concerning the manner of their conduct, the magnitude of the interests involved, the importance of the lawyer’s position, and all other like self-laudation, defy the tradition and lowers the tone of the high calling are intolerable. Canon 28 further provides that it is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except where ties of blood, relationship or trust makes it his duty to do so. Stirring up strife and litigation is not only unprofessional but is indictable at common law, and one of the penalties for this offence was disbarment. 16

SIGMA LEGIS COPY



LEGAL PROFESSION & ETHICS

 Ulep v Legal Clinic (1993) supra at introduction The Code of Professional Responsibility provides that a lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts. Lawyers should not resort to indirect advertisements for professional employment. The standards of the legal profession condemn the lawyer’s advertisement of his talent, this rest on the fundamental postulate that the practice of law is a profession. The lawyer degrades himself and his profession who stoops to and adopts the practices of mercantilism by advertising his services or offering them to the public. Not all types of advertising or solicitation are prohibited. The exceptions are of two broad categories, those, which are expressly allowed, and those, which are necessarily implied from the restrictions. The first of such exceptions is the publication in reputable law lists, in a manner consistent with the standards of conduct imposed by the canons, or brief biographical and informative data  Khan v. Simbillo (2003) F: Atty. Simbulo was found guilty for violating Rule 2.03 and 3.02 of the Code of Professional Responsibility and sec. 27 Rule 138, of the Rules of Court for advertising his services in a Philippine Daily Inquirer ad which read “Annulment of Marriage Specialist 532-433/521-2667.” H: The solicitation of legal business is not altogether proscribed. However, for solicitation to be proper, it must be compatible with the dignity of the legal profession. If it were made in a modest and decorous manner, it would bring no injury to the law and to the bar. The use of simple signs stating the name or names of the lawyers, the office, and the residence address and fields of practice, as well as advertisement in legal periodicals bearing the same brief data and the use of calling cards are permissible. The publication in reputable law lists in a manner consistent with the standards of conduct imposed by the canon, of brief biographical and informative data is likewise allowed. But a lawyer may not properly publish his brief biographical and informative data in

a daily paper, magazine, trade journal or society program (Ulep v. Legal Clinic, Inc.).

 Director of religious Affairs v Bayot (1944) Bayot was reprimanded for publishing an announcement in the Sunday Tribune advertising his services in getting a marriage license and in arranging marriages and his free legal consultation for the poor. RULE 3.02 NO FALSE OR MISLEADING FIRM NAME  Rule 3.02. 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.  Dacanay v Baker and McKenzie (1985) F: Because Baker and McKenzie is an alien law firm not authorized to practice law in the Philippines, the respondents were enjoined from using the name as it constituted a misrepresentation. H: The respondent’s use of the firm name constitutes a representation that being associated with Baker and McKenzie they could “render legal services to the highest quality to multinational business enterprises and others engaged in foreign trade and investment.” This is unethical because Baker & McKenzie is not authorized to practice law here.  In the Matter of the Petition for Authority to Continue Use of the Firm Name – Ozaeta, Romulo, de Leon, etc. and Petition for Authority to Continue Use of Firm Name – Sycip, Salazar, Feliciano, etc. (1979) F: Surviving partners cannot continue to use the names of the deceased partners. The Court held, amongst others, that… H: Continued use will run counter to Art. 1815 CC which tacitly provides that names in a firm name of a partnership must be those of living partners and, in case of non-partners, should be living persons who can be subject to liability. The public relations value of the use of an old firm name can create undue advantage and disadvantage in the practice of the profession. Canon 33 does not consider the act unethical when such practice is permissible by local custom but it warns that care should be taken to avoid deception. In the Philippines, no local custom permits or allows the continued use of a deceased partner’s name because here, the practice is to identify the more active and/or more senior members or partners of the law firm.

17

SIGMA LEGIS COPY

The law is a profession and not a business. The lawyer may not sell or obtain employment himself or through others for to do so would be unprofessional. It is destructive of the honour of a great profession. It lowers the standards of that profession. It works against the confidence of the community and it results in needless litigation.

The practice is allowed in the U.S. because it is sanctioned by custom. Here, there is no local custom allowing such. In this case, where a previous SC decision has laid the rule against the continued use of a deceased partner’s name, no custom or practice, even if proven, can prevail.



Absolutely prohibited: judges, court employees, Solicitor General, prosecution officers, President, Vice-President, cabinet, deputies and assistants (cabinet), members of Constitutional Commissions, civil service officers whose jobs require full time devotion to the government

The practice of law is intimately and peculiarly related to the administration of justice and should not be considered like an ordinary “money-making trade.” It is the essence of a profession that it is practiced in a spirit of public service. A trade aims primarily at personal gain; a profession at the exercise of powers beneficial to mankind.



Legislators: not absolutely prohibited  only prohibited from appearing as counsel before court of justice, Electoral Tribunals, quasi-judicial, other administrative bodies  prohibited: appearance in court and other bodies (includes arguing, filing a pleading, including him in firm name)



Local government officials: prohibited

The spirit of public service in which the profession of law is and ought to be exercised is a prerequisite of sound administration of justice according to law. The two other elements, organization and pursuit of a learned art, have their justification in that they secure and maintain that spirit.

 Sanggunian: may, except (1) civil case with LGU/ government is the adverse party; (2) criminal case when officer of the LGU is accused in relation to office; (3) Not collect any fee for appearance in administrative proceeding; (4) not use property of government except when defending government interest

RULE 3.03 PARTNERS ASSUMING PUBLIC OFFICE



Civil service officers: with consent from head of department (written)



*isolated case (even if prohibited): counsel for relative/ close family friend

 Const, art. VI, sec. 14. [limitation] No Senator or member of the House of Representative may personally appear before any court of justice or before the Electoral Tribunal, or quasi-judicial and other administrative bodies…



totally unauthorized to practice law: includes disbarred and suspended  estafa!



Legal remedies: injunction, declaratory relief, contempt, disqualification, disbarment, estafa, administrative case

 Const, art. VII, sec. 13. [prohibition] The President, Vice-President, the members of the cabinet and assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any profession…

 Samonte v. Gatdula (1999) The SC found it improper that the name of Rolando Gatdula, a branch clerk of court, appears on the calling card of a firm. The Code of Conduct and Ethical Standards for Public Officials and Employees declares that it is unlawful for a public official or employee to, among others: “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 official functions.”

 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 law concurrently.

 Const, Art. IX, Sec. 2. [prohibition] No member of a Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession… NOTES (Agpalo) 

Public office is public trust, expected to perform with highest degree of responsibility, integrity, loyalty and efficiency, exclusive fidelity

RULE 3.04. NO USE OF MEDIA TO ATTRACT BUSINESS  Rule 3.04. A lawyer shall not pay or give anything of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business.

18

SIGMA LEGIS COPY

LEGAL PROFESSION & ETHICS

LEGAL PROFESSION & ETHICS

CANON 4: PARTICIPATE IN DEVELOPMENT: SUPPORT LEGAL REFORMS AND ADMINISTRATION OF JUSTICE  Canon 4. A lawyer shall participate in development of the legal system by initiating reform and in the improvement of the administration of justice. AGPALO (notes) 

While the lawyer’s task in contributing to the improvement of the legal system is not a matter of strict duty, it is a duty nevertheless that flows from the lawyer’s sense of public responsibility. The improvement of the legal system cannot, however, be done by dreaming in a vacuum. The lawyer must recognize that the law is a part of vast social network and whether he likes it or not, he has to interact with the rest of society. There is thus the need on the part of the lawyer to transcend the narrow limits of technical law. Intricately woven is the law with the social fabric that the legal profession cannot afford to confine itself to narrowly technical legal questions. A lawyer must broaden out and continue to grow in knowledge and competence in order to be able to make the law socially responsive. (Agpalo)

CANON 5: PARTICIPATE IN LEGAL EDUCATION

PROGRAM  Canon 5. A lawyer shall keep abreast of legal developments, participate in continuing legal education programs, support efforts to achieve highest standards in law schools as well as in the practical training of law students and assist in disseminating information regarding law and jurisprudence. NOTES (Agpalo) 





Service in the judiciary and being in the active practice of law require continuing study and research on the law from beginning to end. A lawyer incurs a three-fold obligation after admission to practice: To himself: to continue improving his knowledge of the law: to his profession: to take an active interest in the maintenance of of high standards of legal obligation; to the lay public: to make the law a part of its social consciousness Members of the IBP, except those exempt under Rule 7 of Bar Matter No. 850 (Mandatory Continuing Legal Education), are required every 3 years to complete at least 36 hours of continuing legal education activities, with appropriate penalties for failure to do so. (Agpalo)

 Bar Matter 850—Mandatory Education (MCLE) ANNEXED

Continuing

Legal

CANON 6: CANONS APPLY TO LAWYERS IN GOVERNMENT SERVICE  Canon 6. These Canons shall apply to lawyers in government service in the discharge of their official duties. Rule 6.01. The primary duty of a lawyer in public prosecution is not to convict but to see that justice is done. The suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action. Rule 6.02. A lawyer in government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties. Rule 6.03. A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had interned.  RA 6713, (Code of Conduct and Ethical Standards for Public Officials and Employees.)Sec. 4(A) Norms of Conduct of Public Officials and Employees. (A) Every public official and employee shall observe the following as standards of personal conduct in the discharge and execution of official duties: 19

SIGMA LEGIS COPY

 En Banc Resolution (1991) Spurred by Art Borjal’s letter to CJ Fernan regarding the live TV and radio coverage of the hearing of Ppl v Beltran where Pres. Aquino took the witness stand and Judge Makasiar’s letter of response denying that he had given such permission to the Presidential Broadcast Staff, the SC passed the following resolution: “Considering the prejudice it poses to the defendant’s right to due process as well as to the fair and orderly administration of justice, and considering further that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of court proceedings shall not be allowed. Video footages for news purposes shall be restricted and limited to shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of official proceedings. No video shots or photographs shall be permitted during the trial proper.”

LEGAL PROFESSION & ETHICS (f) Nationalism and patriotism. - Public officials and employees shall at all times be loyal to the Republic and to the Filipino people, promote the use of locally produced goods, resources and technology and encourage appreciation and pride of country and people. They shall endeavor to maintain and defend Philippine sovereignty against foreign intrusion. (g) Commitment to democracy. - Public officials and employees shall commit themselves to the democratic way of life and values, maintain the principle of public accountability, and manifest by deeds the supremacy of civilian authority over the military. They shall at all times uphold the Constitution and put loyalty to country above loyalty to persons or party. (h) Simple living. - Public officials and employees and their families shall lead modest lives appropriate to their positions and income. They shall not indulge in extravagant or ostentatious display of wealth in any form. Collantes v. Renomeron (1991) Atty Renomeron was dismissed from office because, in his capacity as Register of Deeds, he refused to register deeds for V & G Better Homes Subdivision unless the latter should either provide him with weekly round trip tickets from Tacloban to Manila complete with pocket money or sell on his behalf a piece of property in QC. 

Misconduct as public official constitutes violation of oath as lawyer. The Code of Professional Responsibility applies to lawyers in gov’t service in the discharge of their official tasks (Canon 6) and forbids a lawyer from unlawful conduct (1.01). Also note that a lawyer shall not delay any man’s cause for any corrupt motive or interest (1.03)

RULE 6.01. PRIMARY DUTY: THAT JUSTICE IS DONE  Rule 6.01. The primary duty of a lawyer in public prosecution is not to convict but to see that justice is done. The suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action. NOTES (Agpalo) In General  A public prosecutor is a quasi-judicial officer who represents, not an ordinary party to a controversy, but a sovereignty. This sovereignty has its obligation to govern impartially. Therefore, the interest in a criminal prosecution is not that it shall win a case but that justice shall be done.

20

SIGMA LEGIS COPY

(a) Commitment to public interest. - Public officials and employees shall always uphold the public interest over and above personal interest. All government resources and powers of their respective offices must be employed and used efficiently, effectively, honestly and economically, particularly to avoid wastage in public funds and revenues. (b) Professionalism. - Public officials and employees shall perform and discharge their duties with the highest degree of excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage. (c) Justness and sincerity. - Public officials and employees shall remain true to the people at all times. They must act with justness and sincerity and shall not discriminate against anyone, especially the poor and the underprivileged. They shall at all times respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest. They shall not dispense or extend undue favors on account of their office to their relatives whether by consanguinity or affinity except with respect to appointments of such relatives to positions considered strictly confidential or as members of their personal staff whose terms are coterminous with theirs. (d) Political neutrality. - Public officials and employees shall provide service to everyone without unfair discrimination and regardless of party affiliation or preference. (e) Responsiveness to the public. - Public officials and employees shall extend prompt, courteous, and adequate service to the public. Unless otherwise provided by law or when required by the public interest, public officials and employees shall provide information of their policies and procedures in clear and understandable language, ensure openness of information, public consultations and hearings whenever appropriate, encourage suggestions, simplify and systematize policy, rules and procedures, avoid red tape and develop an understanding and appreciation of the socioeconomic conditions prevailing in the country, especially in the depressed rural and urban areas.

LEGAL PROFESSION & ETHICS The public prosecutor owes the State, the court, and the accused the duty to lay before the court the pertinent facts at his disposal with methodical and meticulous attention. He should clarify contradictions and fill up gaps in his evidence so that there would be no doubt in the court’s mind.



Prosecutors should avoid giving the impression that their office is being used for political ends or for other purposes that contravene the objective of serving justice impartially regardless of who the litigants are. The image of impartiality is achieved by strict adherence to the established procedures.



A prosecutor should prosecute with earnestness and vigor but must keep in mind that the primary objective is not to win but to serve justice: Guilt shall not escape nor innocence suffer.



Role of a private prosecutor:  The general rule is that an offended party has the right to intervene in the prosecution of a crime except in the following instances (Section 16 of Rule 110 of the Rules of Court in connection with Section 5): 1. When from the nature of the crime and the law defining and punishing it no civil liability arises his favor; 2. When he has waived his right to civil indemnity or has expressly reserved his right to institute a civil action or he has already instituted such action. 

The role of the private prosecutor is to represent the offended party with respect to the civil action for the recovery of civil liability arising from the offense.



His/her duty does not include demanding punishment. If the case is dismissed, the private prosecutor may not file a motion for reconsideration. Such a duty belongs solely to the public prosecutor.



The offended party may not withdraw the civil case already filed so that he/she can intervene in the criminal case.



The offended party’s standing in a criminal case is only that of a witness once a separate civil case is filed.

The public prosecutor should not…  use improper methods calculated to produce a wrongful conviction (to use legitimate means to bring about just ones); 



offer proof of accused’s guilt illegally acquired; suppress facts nor conceal witnesses capable of establishing the innocence of the accused; consent to any undue delay in the prosecution; deprive a person of his statutory or legal rights; assert his personal knowledge of a crime (he must withdraw as a prosecutor and take the witness stand to be cross-examined);



assist in the escape of a prisoner;



institute a criminal action to force settlement of a case;



agree to refrain form prosecuting a person in consideration of a reward;



receive money from dismissing a complaint; induce an accused to plead guilty;



willfully fail to prosecute violations of law or lose records thereof; have a secret law partner with whom he divides the fees;



hesitate to recommend to the court the accused’s acquittal if the evidence in his possession shows that the accused is innocent.

However, a prosecutor enjoys the presumption that he is learned in the law, that he has high morality, and that he had performed his duties with impartiality.

Subject to Control of Public Prosecutor  Intervention by a private lawyer is subject to prosecutor’s control. 

The public prosecutor is required to be present the proceedings and must at any time take over the conduct of the trial from the private prosecutor.



The prosecutor’s presence is necessary for the validity of evidence to be presented as an evidence of the People of the Philippines.



This applies only to court which are provided by law with their own prosecutors, and not to municipal courts which have no trial prosecutors.



HOWEVER, the Supreme Court has amended Sec. 5, Rule 110 of the Rules of Court (effective May 1, 2002): “in case of heavy work schedule or in the even of lack of public prosecutors, a private prosecutor may be authorized in writing by the Chief Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. The authority may be revoked or withdrawn.” A private prosecutor, being under the 21

SIGMA LEGIS COPY



LEGAL PROFESSION & ETHICS





When a public prosecutor should take over handling of case. A public prosecutor should not allow the trial in the hands of a private prosecutor to degenerate into a private prosecution (turns out to be a gratification of private malice or the accomplishment of a private gain or advantage) Suarez v Platon (1940)

F: Lt. Orais arrested and incarcerated Atty. Suarez for uttering seditious words. The following day, he moved for the dismissal of the case against Suarez on the motion of his superior. Suarez charged Orais with illegal detention. Judge Platon, however, dismissed the case on the basis of the public prosecutor’s recommendation of such. The SC upheld Platon’s decision. H: (Laurel J.) We cannot overemphasize the necessity of close scrutiny and investigation of prosecuting officers of all cases handled by them, but whilst this court is averse to any form of vacillation by such officers in the prosecution of public offenses, it is unquestionable that they may in appropriate cases, in order to do justice and avoid injustice, reinvestigate cases in which they have already filed the corresponding informations. In the language of Justice Sutherland of the SC of the US, the prosecuting officer “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so, But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.  People v Pineda (1967) F: Narbasa, Alindo and Borres stood indicted as principals in 5 separate cases for murder and frustrated murder. 5 separate informations were filed by the prosecuting attorney from his investigation. 2 of the 3 defendants moved for a consolidation of the

5 cases into 1 criminal case because the said cases arose out of the same incident and motivated by one impulse. Judge Pineda granted the petition and ordered the other 4 cases to be dropped. The City Fiscal disagreed with the finding of the judge. H: The benefit of the doubt belongs to the prosecuting attorney. The prosecuting attorney is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to prop up the averments thereof, or that the evidence at hand points to a different conclusion. But we must have to recognise that a prosecuting attorney should not be duly compelled to work against his conviction. We should give him the benefit of the doubt. The prosecuting attorney, being the one charged with the prosecution of offences, should determine the information to be filed and cannot be controlled by the offended party. The impact of Judge Pineda’s order is that his judgment substitutes the prosecutor’s on the matter of what crime is to be filed in court. Nevertheless, a judge may, by a relief in equity, stop a purported enforcement of criminal law where (1) it is needed for the orderly administration of justice, (2) to prevent the use of the strong arm of the law in an oppressive and vindictive manner, (3) to avoid multiplicity of actions, (4) to afford adequate protection to constitutional rights and (5) because the statute relied upon is unconstitutional or was held invalid. The present case does not fall under any of these exceptions, thus the order of the judge must be set aside. RULE 6.02 NOT TO USE PUBLIC POSITION FOR PRIVATE INTEREST  Rule 6.02. A lawyer in government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties.

NOTES (Agpalo) 

This rule applies to lawyers in government service, who are allowed by law to engage in private law practice and to those who, though prohibited from engaging in the practice of law, have friends, former associates, and relatives who are in the active practice of law.



The lawyer must not use his public office to further his law practice. He should not accept any private legal business in conflict with his official duties and if such a case arises he must terminate his professional relationship, explaining to his client that his public duty must prevail.

22

SIGMA LEGIS COPY

direction and control of the public prosecutor may not take a stand different from that of the latter.

LEGAL PROFESSION & ETHICS





If he is prohibited from practicing his profession, he must not do so indirectly by being a silent partner in a law firm or by securing legal business for a friend or a former associate in the active practice of law, and receiving a share in the fees for his effort. The following principles complement the code of conduct (Public officials shall NOT):  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;  engage in the private practice of their profession unless authorized by the constitution or law (will not conflict with his/her official functions);  recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office; and  use or divulge confidential information officially known to them by reason of their office (not available to the public) to further private interest, to give undue advantage anyone or to the prejudice of public interest. Misamin v San Juan (1976)

F: Atty. San Juan, a captain of the MM Police force and a member of the bar was charged with coercing an employee, Misamin, to agree to drop charges filed against his employer Tan Hua for violation of the Minimum Wage Law. The Case was dismissed for lack of evidence. H: While the charges have to be dismissed, still it would not be inappropriate for respondent to avoid all appearances of impropriety. Certainly, the fact that the suspicion could be entertained that far from living true to the concept of a public officer being a public trust, he did make use not so much of whatever legal knowledge he possessed, but the influence that laymen could assume was inherent in the office held not only to frustrate the beneficent statutory scheme that labor be justly compensated but also to be at the beck and call of what the complainant called alien interest, is a matter that should not pass unnoticed. Respondent, in his future actuations as a member of the bar, should refrain from laying himself open to such doubts and misgivings as to his fitness not only for the position occupied by him but also for membership in the bar. He is not worthy of membership in an honorable

profession who does not even take care that his honor remains unsullied.  Vitriolo v. Dasig (1973) H: The SC disbarred Atty. Felina Dasig, the OIC of the Legal Affairs Service of CHED, for making unlawful demands to extort money from certain people who had pending applications in her office for correction of names; filing 11 baseless, groundless, and unfounded suits against the complainants of the case; willfully failing to pay her debts as evidenced by the dishonest checks she issued; instigating the commission of a crime where she allegedly encouraged her son, a jail warden, to shoot the Cornacions; sending to Pres. Estrada libelous and unfair reports which were designed to prevent the reappointment of the 11 CHED directors and with the end view of securing one for her. Generally speaking, a lawyer who holds a government office may not be disciplined as a member of the Bar for misconduct in the discharge of his duties as government official. However, if said misconduct as a government official also constitutes a violation of his oath as a lawyer then he may be disciplined by this Court as a member of the Bar. The Attorney’s Oath is the source of obligation and duties of every lawyer and any violation thereof is a ground for disbarment, suspension, or other disciplinary action. Respondent’s demands for sums of money to facilitate the processing of pending applications before her office violates such duty and runs afoul of the oath she took when admitted to the Bar. A member of the Bar who assumes public office does not shed his professional obligation. The CPR was not meant to govern the conduct of private petitioners alone, but of all lawyers including those in government service. Lawyers in government are public servants who owe the utmost fidelity to the public service. Thus they have to be mores sensitive in the performance of their professional obligations. Respondent’s attempts to extort money from persons with applications or requests pending before her office are violative of Rule 1.01 which prohibits lawyers from engaging in any unlawful, dishonest or deceitful acts. These acts also constitute a breach of rule 6.02 which bars lawyers in government service from promoting their private interests. A lawyer in public service is a keeper of public faith and is burdened with a high degree of social responsibility, perhaps higher than her brethren in private practice. RULE 6.03. NOT TO ACCEPT EMPLOYMENT AFTER GOVERNMENT SERVICE  Rule 6.03. A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had interned.  RA 3019, Sec. 3(d) (Anti-Graft and Corrupt Practices Act). In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be 23

SIGMA LEGIS COPY



LEGAL PROFESSION & ETHICS

 RA 6713, Sec. 7(b). In addition to acts and omissions of public officials and employees not prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful: (b) Outside employment and other activities related thereto.— Public officials and employees during their incumbency shall not: 1) Own, control, manage or accept employment as officer employee, consultant, counsel, broker, agent, trustee or nominee / in any private enterprise regulated, supervised or licensed by their office / unless expressly allowed by law; 2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions; or 3) Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office.



“Any matter” and “he had intervened” in Rule 6.03 are very broad terms which include any conceivable subject in which he acted in his official capacity.

 PNB v Cedo (1995) Atty. Cedo was found guilty of violating 6.O3 for handling a case involving transactions he had handled for his previous employer, PNB. The Rule on Conflicting Interests applies. Chapter 2 The Lawyer and the Legal Profession CANON 7: UPHOLD THE DIGNITY AND INTEGRITY OF THE PROFESSION  Canon 7. A lawyer shall at all times uphold the integrity and dignity of the legal profession and support the activities of the integrated bar. Rule 7.01. A lawyer shall be answerable for knowingly making a false statement or suppressing a material fact in connection with his application for admission to the bar. Rule 7.02. A lawyer shall not support the application for admission to the bar of any person known by him to be unqualified in respect to character, education, or other relevant attribute.

These prohibitions shall continue to apply for a period of 1 year after resignation, retirement or separation from public office, / except in case of subparagraph (2) above, / but the professional concerned cannot practice his profession in connection with any matter before the office he used to be with, / in which case the one year prohibition shall likewise apply.

Rule 7.03. A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.

 RA 910 Sec. 1 (condition of pension). No retiring justice or judge of a court of record or city or municipal judge during the time that he is receiving said pension shall appear as counsel in any court in any civil case where in the govt. or any of its subdivisions or instrumentalities is an adverse party, in a criminal case were an officer or employee of the govt. is accused of an offense related to his official function, or collect any fee for his appearance in any administrative proceedings to maintain an interest adverse to the govt.



Maintenance by the bar of a high standard of legal proficiency as well as honesty and fair dealing is a prerequisite to making the bar an effective instrument in the proper administration of justice.



But the bar can only be as reputable as its members hence, it is necessary that every lawyer should strive at all times to uphold the honor and maintain the dignity of the legal profession and to improve not only the law but the administration of justice as well.



More than just paying IBP Membership dues, a lawyer should help achieve objectives and purposes of the IBP, i.e.,  assist in the administration of justice;  foster and maintain on the part of its members high ideals of integrity, learning, professional competence, public service and conduct;  safeguard the professional interests of its members;

NOTES (Agpalo) 

The restriction in Rule 6.02 extends beyond his/her tenure on certain matters in which he has intervened as a public official.

NOTES (Agabin)

24

SIGMA LEGIS COPY

unlawful: (d) Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination.

LEGAL PROFESSION & ETHICS





cultivate among its members a spirit of cordiality and brotherhood; provide a forum for the discussion of law, jurisprudence, law reform, pleading, practice and procedure and the relations of the bar thereto; encourage and foster legal education; promote a continuing program of legal research in substantive and adjective law, and make reports and recommendations thereon.

 In re: 1989 Election of the IBP (1989) F: The SC annulled the IBP Elections and ordered the holding of special elections and declared the candidates in the June 3, 1989, as ineligible for any IBP position in the special elections. The Court based its conclusion upon the following findings: prohibited campaigning and solicitation of votes by the candidates; use of PNP plane in the campaign of Atty. Drilon; formation of tickets and single slates; giving free transportation of out-of-town delegates and alternates; giving free hotel accommodations, food, drinks, entertainment to delegates; campaigning by labor officials for Atty. Drilon (her husband is the Labor Secretary); paying the dues of other indebtedness of any member (sec. 14(e) IBP ByLaws); distribution of materials other than bio-data of not more than one-page of legal size sheet of paper (Sec. 14(a), IBP By-laws); causing distribution of such statement to be done by persons other than those authorized by the officer presiding at the election (Sec. 14 (b), IBP By-Laws); inducing or influencing a member to withhold his vote, or to vote for or against a candidate (Sec. 14 (e), IBP By-Laws). H: The basic postulate of the IBP is that it is non-political in character and that there shall be no lobbying nor campaigning in the choice of the IBP Officers. The fundamental assumption is that the officers would be chosen on the basis of professional merit and willingness and ability to serve. The candidates and many of the participants in the election process not only violated the By-Laws of the IBP but also the ethics of the legal profession which imposes on all lawyers, as a corollary of their obligation to obey and uphold the constitution and the laws, the duty to “promote respect for law and legal processes” and to abstain from “activities aimed at defiance of the law or at lessening confidence in the legal system.” (Rule 1.02) The unseemly ardor with which the candidates pursued the presidency of the association detracted from the dignity of the legal profession. The spectacle of lawyers bribing or being bribed to vote did not uphold the honor of the profession nor elevate it in the public’s esteem.

 Santos v. Llamas (2000) F: The SC suspended from nonpayment of IBP dues and for using the same IBP O.R. Nos. and data for 3 years. Sanots justified his nonpayment of IBP dues by claiming that he had a limited practice of law, being a farmer by occupation, and that since 19992, he is exempt from payment of taxes as a senior citizen. H: In accordance with Sections 9 and 10 of Rule 139-A ROC, Llamas can engage in the practice of law only by paying his dues, and it does not matter if his practice is “limited.” While it is true that RA 7432 section 4 grants senior citizens “exemption from payment of individual income taxes: provided, that their annual taxable income does not exceed the poverty level as determined by NEDA for that year,” the exemption does not include payment of membership or association dues.  Re: 2003 Bar Examinations (2004) F: After a rumored leakage concerning the mercantile bar exam of 2003, the SC spread out the weight of mercantile law among the remaining 7 subjects. An investigation into the matter revealed that 75% of the questions on mercantile law were prepared by bar examiner Atty. Marcial Balgos. 25% were prepared by Justice Vitug. Those questions prepared by Justice Vitug were not among the leaked questions. Bar examiner Atty. Balgos explained that he prepared the test questions for that subject using his personal computer but that he does not know how to use his PC, except to type on it. His private secretary turns his PC on and shuts it down for him. Only two people know the PC’s password—his secretary and the office manager Silvestre Atienza (2nd year student at MLQU). Atty. Balgos thought that he alone could access his PC and was surprised to find that it was fact interconnected with the other computers in the law office. Atty. Balgos found out that Atienza was responsible for interconnecting Atty. Balgo’s PC without the latter’s permission. Atienza is a member of the Beta Sigma Lambda fraternity in MLQU. He said that he participated in his fraternity’s bar-ops but only in bringing food to the examinees. Another member of the fraternity and of the law firm, Atty. Danilo De Guzman, admitted that he downloaded the test questions from Atty. Balgo’s PC and faxed a copy to his fraternity brother. H: Atty. de Guzman’s act of downloading the test questions from Atty. Balgo’s PC without the latter’s knowledge and permission was a criminal act of larceny. It was theft of intellectual property. He transgressed the very first canon of the Lawyer’s Code of Professional Responsibility which provides that a lawyer shall obey the laws of the land. By transmitting and distributing the stolen questions to his fraternity brothers, he had given them undue advantage over the other examiners. He has violated canons 1.01 and 7 of the CPR. He is guilty of grave misconduct unbecoming a member of the Bar. He had impaired public respect for the court and damaged the integrity of the bar examinations as the final measure of a law 25

SIGMA LEGIS COPY



LEGAL PROFESSION & ETHICS

All this could have been avoided had Atty. Balgos exercised due diligence in safeguarding the secrecy of the test questions. He relied too much on his secretary. He should have typed the test questions using his typewriter in the privacy of his own home. Atty. Balgo’s negligence in the preparation and safekeeping of his proposed test questions was not the proximate cause for the leakage, it was the root cause. The SC recommended that Atty. de Guzman be disbarred for being morally unfit to continue as a member of the legal profession, grave dishonesty, lack of integrity and criminal behavior and found that he should make a written public apology and pay damages to the Supreme Court. Atty Balgos was likewise reprimanded and required to make a written apology.  Letter of Atty. Cecilio Arevalo (2005) F: The SC turned down Atty Arevalo’s request for exemption from IBP dues amounting to P12,035 for the period 1977-2005 explaining that after joining the Philippine Bar in 1961, he became part of the Civil Service (hence, he could not be assessed his IBP dues having been prohibited from practice of law while in government service) and in 1986, he migrated to the US where he worked. H: Organized by or under the direction of the State, an Integrated Bar is an official national body of which all lawyers are required to be members—they are, therefore subject to all the rules prescribed for the governance of the Bar, including the payment of a reasonable annual fee for the effective discharge of the purposes of the Bar, and adherence to a code of professional ethics or professional responsibility. The integration of the Phil. Bar means the unification of the entire lawyer population requiring membership and financial support of every attorney as condition sine qua non to the practice of law and the retention of his name in the Roll of Attorneys of the SC. Bar integration does not compel the lawyer to associate. The only compulsion is the payment of annual dues which, the SC, in order to foster the State’s legitimate interest in elevating the quality of professional legal services, may require to be shared by all the subjects and beneficiaries – the lawyers. The fee is a regulatory measure not barred by the Constitution. The only limitation is that the regulation should not impose an unconstitutional burden. The public interest far outweighs the slight inconvenience to a

member. The compulsory nature of payment of dues subsists for as long as one’s membership in the IBP remains, regardless of the extent of practice of a lawyer. There is no exemption. As pointed out by IBP, Atty. Arevalo could have informed the Sec. of the Bar of his intention to stay abroad, in which case his IBP membership could have been terminated and oblig to pay annual dues discontinued. Citing In re Atty. Marcial Edillon: The practice of law is not a property right but a mere privilege, and as such must bow to the inherent regulatory power of the court to exact compliance with the lawyer’s public responsibilities. Membership in the bar is a privilege burdened with conditions, one of which is the payment of membership dues. 7.01 NO FALSE STATEMENT  Rule 7.01 A lawyer shall be answerable for knowingly making a false statement or suppressing a material fact, in connection with his application for admission to the bar. NOTES (Agpalo) 

Observance of the duties and responsibilities of a lawyer begins even as a law student. A student’s failure to live up to them may be a ground for SC to refuse admission to practice or for disbarment should SC learn later on about his/her transgressions.

RULE 7.02 NOT TO SUPPORT UNQUALIFIED BAR APPLICANT  Rule 7.02. A lawyer shall not support the application for admission to the bar of any person known by him to be unqualified in respect to character, education, or other relevant attribute. NOTES (Agpalo) 

A lawyer should not readily execute an affidavit of good moral character in favor of an applicant who has not live up to the standard set by law.



He should volunteer information or cooperate in any investigation concerning alleged anomaly in the bar examination. This is to help guard the profession from candidates who are unfit or unqualified.



He should expose without fear or favor before the SC corrupt or dishonest conduct in the profession and should not hesitate to accept professional employment against a lawyer who has wronged his client.

RULE 7.03 26

SIGMA LEGIS COPY

graduate’s academic preparedness to embark in the practice of law.

LEGAL PROFESSION & ETHICS

 Rule 7.03. A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. NOTES (Agpalo) 

The best way a lawyer can uphold the integrity and dignity of the legal profession is not to engage in any conduct or do any act that adversely reflects on his fitness to practice law, nor to behave, in his public or private life, in a scandalous manner to the discredit of the legal profession. (it can be likened to a shield in defense of rights and to ward off wrong)  Zaguirre v. Castillo (2003) F: Zaguirre and Castillo were officemates at the NBI. Zaguirre said that Castillo represented himself to be single, courted her and promised marriage. Soon they had intimate relations and Zaguirre became pregnant. During their affair, Castillo was preparing for the bar exam which he passed. Only after Castillo was admitted to the Bar, did Zaguirre learn that he was married. She presented an affidavit executed by Castillo, who by now is a lawyer admitting his relationship with her and recognizing the baby she was carrying as his. However, when she gave birth, Castillo refused to recognize the child and to give her any form of support. Castillo denied all her allegations and said that what transpired between them was nothing but mutual lust and desire. He admitted that he executed the affidavit but explained that he only did so to save Zaguirre from embarrassment. He offered the defense that he was not caught in flagrante delicto and he sought understanding from the court by pointing out that “men by nature are polygamous.” The SC indefinitely suspended him from the practice of law for gross immoral conduct. (He was not disbarred because Court took notice of the fact that he severed his ties with Zaguirre and now lives with his wife and children.) H: Respondent repeatedly engaged in sexual congress with a woman not his wife and refuses to recognize and support a child whom he previously recognized and promised to support. Clearly therefore, he violated the standards of morality required of the legal profession and should be disciplined accordingly. Atty. Castillo’s defenses are not feasible. What is in question in a case like this is respondent’s fitness to be a member of the legal profession. In a disbarment

proceeding, it is immaterial that the complainant is aware of his marital status or that he was not caught in pair delicto because this is not a proceeding to grant relief to the complainant but one to purge the law profession of unworthy members, to protect the public and the court. Possession of good moral character is not only a condition precedent to admission to the legal profession, but its continued possession is essential to maintain one’s good standing in the profession. Complainant’s admission to practice merely creates a rebuttable presumption that he has all the qualifications to become a lawyer. CANON 8 COURTESY, FAIRNESS AND CANDOR TOWARDS PROFESSIONAL COLLEAGUES  Canon 8. A lawyer shall conduct himself with courtesy, fairness, and candor toward his professional colleauges, and shall avoid harassing tactics against opposing counsel. Rule 8.01. A lawyer shall not, in professional dealings, use language which is abusive, offensive or otherwise improper. Rule 8.02. A lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer; however, it is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel. NOTES (Agpalo) 

Observance of honorable, candid and courteous dealings with other lawyers and fidelity to known and recognized customs and practices of the bar that make the practice of law a profession are among the obligations of a lawyer.



Candor, fairness and truthfulness should characterize the conduct of a lawyer with other lawyers.



A lawyer’s duty is to restrain client from improprieties and to terminate relation with him/her should the latter persist.



A lawyer should not avoid performance of an agreement fairly made because it is not reduced to writing. He should not take advantage of the excusable unpreparedness or absence of counsel during the trial of a case. Nor should he make use, to his or to his client’s benefit, the secrets of the adverse party acquired thru design or inadvertence.



A lawyer who thinks a case is weak may not criticize the lawyer who accepts it, much less should he attribute to him/her evil motive for taking up the client’s cause. Such 27

SIGMA LEGIS COPY

NO CONDUCT ADVERSELY AFFECTING THE PROFESSION

LEGAL PROFESSION & ETHICS action is not only immaterial but betrays lack of understanding of atty’s duties to client. Although respect and confidence is due to every colleague, it is not improper for a lawyer to honor the just claim of a layman against another lawyer because such act is a mere honest effort to serve the interest of his/her client.

 Camacho v. Pangulayan (2000) F: The counsel [our very own Prof. Manuel Camacho] of expelled AMA students filed this complaint against the lawyers comprising the Pagulayan and Associates Law Office for procuring without his knowledge compromise agreements during the civil case involving the students and the school. The agreements required the students to waive all kinds of claims they might have against AMA and to terminate all civil, criminal and administrative proceedings filed against it. The students also wrote letters of apology. Atty. Pagulayan admits that only he participated in the formulation and execution of the various Re-Admission Agreements complained of. He alleges however that the agreements had nothing to do with the civil case but were purely administrative. The SC suspended Atty. Pangulayan from the practice of law for 3 months. H: The IBP found that Atty. Pagulayan was aware that when the letters of apology and Re-Admission Agreements were formalized, the complainant was already the counsel for the students in the civil case but that he still proceeded to negotiate with the students and their parents without at the very least communicating the matter to their lawyer. His failure is an inexcusable violation of the canons of professional ethics and an utter disregard of a duty owing to a colleague. His defense that the agreements were purely administrative does not hold because the manifestation stated that the students shall drop all civil, criminal and administrative proceedings against AMA.



The fact that one of the lawyers conducts him/herself improperly does not relieve the other from professional obligation in his relation with him/her.



The highest reward that can come to a lawyer is the esteem of his/her brethren. It is won in unique conditions and is a tribute to exceptional power controlled by conscience and a sense of public duty—to a knightly bearing and valor in the hottest of encounters.

RULE 8.01 NOT TO ENCROACH ON PROFESSIONAL EMPLOYMENT  Rule 8.02. A lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer; however, it is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel. NOTES Agpalo 

A lawyer should not steal the other lawyer’s client nor induce the latter to retain him by promise of better service, good result or reduced fees for his services. Neither should he disparage another, make comparisons or publicize his talent as a means to further his law practice.



He may accept employment to handle a matter previously handled by another lawyer, provided that the other lawyer has been given notice of termination of service. Without such notice, he shall only appear once he has obtained conformity or has, at the very least, given sufficient notice of contemplated substitution. A lawyer’s appearance in the case without notice to the first lawyer amounts to an improper encroachment upon the professional employment of the original counsel.



The purpose is for the original lawyer to assert his/her right but the latter cannot insist that the new lawyer refuse employment in the matter merely because he claims the termination of his services is a breach of contract. To do so would be to deny litigant of the right to be represented at all times of his counsel of choice.



A lawyer should not, in the absence of the adverse party’s counsel, interview the adverse party and question him as to the facts of the case even if the adverse party was willing to do so. Neither should he sanction the attempt of his client to settle a litigated matter with the adverse party without the consent or knowledge of the latter’s counsel. (cf. Canon 9)

RULE 8.01 NO ABUSIVE AND IMPROPER LANGUAGE  Rule 8.01. A lawyer shall not, in professional dealings, use language which is abusive, offensive or otherwise improper. NOTES Agpalo 

“Do as adversaries do in law: strive mightily but eat and drink as friends” should characterize the relationship between opposing counsel in a case.

28

SIGMA LEGIS COPY



Whatever ill-feelings between clients should not influence counsel in their conduct and demeanor toward each other.

LEGAL PROFESSION & ETHICS



A client’s proffer of assistance of additional counsel should not be regarded as evidence of want of confidence but the matter should be left to the determination of the client. The 2nd lawyer should communicate with the 1st before making an appearance. Should the 1 st lawyer object, he should decline association but if the 1st lawyer is relieved, he may come into the case. When there is conflict of opinions between two lawyers jointly associated in a case, the client should decide. The decision should be accepted unless the nature of the difference makes it impracticable for the lawyer whose judgment has been overruled to cooperate effectively. In this event, it is his/her duty to ask client to relieve him/her.

 Laput v. Remotigue (1962) F: The SC dismissed the charges of Atty. Laput that the respondents nursed the desire of his former client to replace him. H: The solicitor general found that before respondents filed their appearance, the client had already filed with the court a pleading discharging the complainant. The fact that complainant was not able to get a copy was not the fault of respondents. Also, it was found that Mrs. Barrera dismissed complainant as lawyer because she no longer trusted him because she found out that some checks were sent to the complainant instead of her and that several withdrawals were made by complainant in her account without her permission. There is no irregularity in the appearance of respondents as counsel. Complainants’ withdrawal and his filing of a motion for the payment of his attorney’s fees estop him from now complaining that the appearance of respondent Patlinghug is unprofessional. As for the respondents, they only entered their appearance after Mrs. Barrera had dispensed of the complainant’s services and after the petitioner had voluntarily withdrawn. CANON 9 UNAUTHORIZED PRACTICE OF LAW  Canon 9. A lawyer shall not, directly or indirectly, assist in the unauthorized practice of law. Rule 9.01. A lawyer shall not delegate to any unqualified person the performance of any task which

by law may only be performed by a member of the Bar in good standing. Rule 9.02. A lawyer shall not divide or stipulate to divide a fee for legal services with persons not licensed to practice law, except: 3. Where there is a pre-existing agreement with a partner or associate that, upon the latter’s death, money shall be paid over a reasonable period of time to his estate or to persons specified in the agreement; or 4. Where a lawyer undertakes to complete unfinished or legal business of a deceased lawyer; or 5. Where a lawyer or law firm includes non-lawyer employees in a retirement plan, even if the plan is based in whole or in part, on profit-sharing arrangement.  Aguirre v. Rana (2003) F: Edwin Rana passed the 2000 Bar Examinations but was denied admission after it was found that he appeared as counsel for a candidate in the May 2001 elections before the Municipal Board of Election Canvassers of Mandaon, Masbate where he even filed a pleading representing himself as “counsel for and in behalf of Vice Mayoralty candidate George Bunan.” H: To engage in the practice of law is to perform acts which are usually performed by members of the legal profession. Generally, to practice law is to render any kind of service which requires theuseof legal knowledge or skill. Rana was engaged in the practice of law when he appeared in the proceedings before the MBEC and filed various pleadings without license to do so. Respondent has shown moral unfitness to be a member of the Philippine Bar. Rana’s having passed the bar and taking the oath does not make him a lawyer. It is the signing in the Roll of Attorneys that finally makes one of a full-fledged lawyer. The fact that Rana passed the bar is immaterial. Passing the bar is not the only qualification to become an attorney-at-law.  OCA v. Ladaga (2001) F: The SC sternly reprimanded Atty. Ladaga, Branch Clerk of Court the RTC of Makati, for practicing law without prior permission when he appeared as pro bono counsel for his cousin. Atty. Ladaga had actually requested the Court Administrator for authority to appear but nonetheless appeared before authorisation could be given. H: Private practice does not pertain to an isolated court appearance; rather, it contemplates a succession of acts of the same nature habitually or customarily holding one’s self to the public as a lawyer. It is evident that the isolated instances when Misael appeared as pro bono counsel of his cousin do not constitute the “private practice” of the law profession contemplated by law. Nonetheless, though his appearances do not amount to private practice, he still failed to obtain a written permission from the head of the Department as required by the 29

SIGMA LEGIS COPY



LEGAL PROFESSION & ETHICS Revised Civil Service Rules (No officer or employee shall engage directly in any private business, vocation or profession…).

practice of law, either alone or as associated with a practicing attorney under a firm name.

 Sps. Suarez. v. Salazar (1999) F: Atty. Filemon Manangan was hired by the petitioners as their counsel. In 1990, the SC found him to be in reality Andres Culanag who is not a member of the Philippine Bar. At the hearing for this motion, Manangan admitted that he is not a lawyer entitled to practice law in the Philippines and that despite the previous decision of the Court he continued to misrepresent himself to be an attorney-at-law. The SC declared him guilty of indirect contempt and sentenced him to 3 months imprisonment.

RULE 9.01 NOT TO DELEGATE WORK  Rule 9.01. A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the Bar in good standing. NOTES (Agpalo) 

[unnecessary]

 Alawi v Alauya (1997) F: Alauya, a member of the Shari’a Bar used the title of “attorney”. H: The title of “attorney” is reserved to those who, having obtained the necessary degree in the study of law and successfully taken the Bar Examinations, have been admitted to the IBP and remain members thereof in good standing, and it is they only who are authorized to practice law in this jurisdiction.  In re del Rosario (1928) F: Del Rosario, who was accepted to the bar upon a review of the records, was acquitted of falsifying public documents. His co-principal however was convicted. The SC disbarred Del Rosario despite his acquittal. H: Acquittal upon a criminal charge is not a bar to proceedings intended to determine if a candidate is worthy to be admitted to the bar. The standards of the legal profession are not satisfied by conduct which merely enable one to escape the penalties of criminal law.  US v Ney (1907) F: Bosque was not permitted to practice law as he refused to relinquish his status as a Spanish subject. A signature in a pleading containing the name of one, neither a party nor an attorney, does not comply with the rules even if the name of a licensed attorney is included. A signature by agents amounts to a signing by nonqualified attorneys the office of attorney being originally one of agency. H: A person not admitted to the bar may not hold himself out to the public as engaged in the

Can employ secretaries, investigators, detectives, researches as long as they are not involved in the practice of law (e.g., not “writing” pleadings, appearing in court, etc.)

NOTES (Jardeleza) 

May a lawyer delegate a case to another lawyer within the same firm? If a client has specified the services of one particular attorney, then the case may not be delegated. Otherwise, it may be delegated.

RULE 9.02 NOT TO DIVIDE LEGAL FEES  Rule 9.02. A lawyer shall not divide or stipulate to divide a fee for legal services with persons not licensed to practice law, except: a. Where there is a pre-existing agreement with a partner or associate that, upon the latter’s death, money shall be paid over a reasonable period of time to his estate or to persons specified in the agreement; or b. Where a lawyer undertakes to complete unfinished or legal business of a deceased lawyer; or c. Where a lawyer or law firm includes non-lawyer employees in a retirement plan, even if the plan is based in whole or in part, on profit-sharing arrangement. NOTES (Agpalo) 

the first two exceptions to the rule represent compensation for legal service rendered by the deceased lawyer during his lifetime, which is paid to his estate or heirs



the third exception to the rule does not involve, strictly speaking, a division of legal fees with non-lawyer employees. The retirement benefits in the form of pension 30

SIGMA LEGIS COPY

H:

LEGAL PROFESSION & ETHICS represent additional deferred wages or compensation for past services of the employees

Chapter 3 The Lawyer and the Court

CANON 10 OBSERVE CANDOR, FAIRNESS & GOOD FAITH

 Canon 10. A Lawyer owes candor, fairness and good faith to the Court. Rule 10.01. A lawyer shall not do any falsehood, nor consent to the doing of any in Court, nor shall he mislead or allow the Court to be misled by an artifice. Rule 10.02. 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 law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved. Rule 10.03. A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice. NOTES (Agpalo) 

A lawyer is first and foremost an officer of the court. He takes part in one of the most important functions of the state—administration of justice



As an officer of the court and as part of the



The power to exclude persons from the practice of law is but a necessary incident of the power to admit persons to said practice

Lawyer’s duty to court, generally  A lawyer owes to the court, as its officer, the duty to be candid, faithful and hones; observe and maintain the respect due it and judicial officers; assist in the speedy and efficient administration of justice; and refraining from any impropriety tending to influence the court in the performance of its judicial function 

The first duty of a lawyer is not to his client but to the administration of justice



A lawyer is not an umpire but an advocate. He is under no duty to refrain from taking every proper argument in support of any legal point because he is not convinced of its inherent soundness

 Ting Dumali v. Torres (2004) F: The SC disbarred Atty. Torres for facilitating the conveyance of the property of his parents in law by way of an extrajudicial partition of the properties. The document falsified the signature of the complainant and asserted that there were no other compulsory heirs. H: The oath to which all lawyers have subscribed in solemn agreement to dedicate themselves to the pursuit of justice is not a mere ceremony or formality for practicing law to be forgotten afterwards; nor is it mere words, drift and hollow, but a sacred trust that lawyers must uphold and keep inviolable at all times. Also, respondent is the brother in law of the complainant. Being married to complainant’s sister, he knew of his wife’s siblings. He was also consulted with regard to the falsification of complainant’s signature in the extrajudicial settlement. Instead of advising her to secure a written special power of attorney and against committing falsification, he presented such document to the Registry of Deeds to secure a new title to the lot in favour of his wife and her sibling.  Cobb Perez v. Lantin (1968) F: In a previous decision, the SC was compelled to observe that the petitioners resorted to a series of actions and petitions, abetted by their counsel, for the sole purpose of thwarting the execution of a simple money judgment which had long become final and executory. The petitioners and their counsel, far from viewing the courts as sanctuaries for those who seek justice, tried to use them to subvert the very ends of justice. Corollarily, the Court assessed treble costs against the petitioners, to be paid by their counsel. The SC denied this 31

SIGMA LEGIS COPY

 Five J Taxi v. NLRC (1994) H: Art. 222 of the Labor Code as amended states that non-lawyers may appear before the NLRC or any labor arbiter only (1) if they represent themselves, or (2) if they represent their organization or the members thereof. While it may be true that Guillermo H. Pulia was the authorized representative of private respondents, he was a non-lawyer who did not fall in either of the foregoing categories. Hence, by clear mandate of the law, he is not entitled to attorney’s fees. Furthermore, the statutory rule that an attorney shall be entitled to have and recover from his client a reasonable compensation for his services necessarily imports the existence of an attorney-client relationship as a condition for the recovery of attorney’s fees, and such relationship cannot exist unless the client’s representative is a lawyer.

machinery for the administration of justice, a lawyer is continually accountable to the court for the manner he discharges his duties and is always subject to its disciplinary control

LEGAL PROFESSION & ETHICS motion for reconsideration by said counsel who justified their position thus: “If there was a delay, it was because petitioners’ counsel happened to be more assertive… a quality of lawyers which is not to be condemned.”

fidelity to private trust and to public duty, as an honest man and as a patriotic and loyal citizen.

H: A counsel’s assertiveness in espousing with candour and honesty his client’s cause must be encouraged and is to be commended; what we do not and cannot countenance is a lawyer’s insistence despite the patent futility of his client’s position, as in the case at bar. It is the duty of a counsel to advise his client, ordinarily a layman to the intricacies and vagaries of the law, on the merit or lack of merit of his case. If he finds that his client’s cause is defenceless, then it is his bounden duty to advise the latter to acquiesce and submit rather than traverse the incontrovertible. A lawyer must resist the whims and caprices of his client, and temper his client’s propensity to litigate. A lawyer’s oath to uphold the cause of justice is superior to his duty to his client; its primacy is indisputable.



Candor especially towards the court is essential to the speedy administration of justice.



Courts are entitled to expect only complete honesty from lawyers appearing before them. Lawyers have the fundamental duty to satisfy that expectation.



It would be a great detriment to, if not a failure of, the administration of justice if the courts could not rely on the submissions and representations of lawyers in the handling of their cases.



A lawyer should not conceal the truth from the court, nor mislead the court in any manner no matter how demanding his duties to clients may be.

 

Rule 10.01 is also found in the lawyer’s oath. A lawyer should volunteer to the court any development of the case which has rendered the issue raised moot and academic thus avoiding the time of the court from being wasted.

 Rule 10.01. A lawyer shall not do any falsehood, nor consent to the doing of any in Court, nor shall he mislead or allow the Court to be misled by an artifice.  Canon 32 Code of Professional Ethics. The lawyer's duty in its last analysis. No client corporate or individual, however, powerful nor any cause, civil or political, however important, is entitled to receive nor should any lawyer render any service or advice involving disloyalty to the laws whose ministers we are, or disrespect of the judicial office, which we are bound to uphold, or corruption of any person or persons exercising a public office or private trust, or deception or betrayal of the public. When rendering any such improper service or advice, the lawyer invites and merits stern and just condemnation. Correspondingly, he advances the honour of his profession and the best interests of his client when he renders service or gives advice tending to impress upon the client and his undertaking exact compliance with the strictest principles of moral law. He must also observe and advice his client to observe the statute law, though until a statute shall have been construed and interpreted by competent adjudication he is free and is entitled to advise as to its validity and as to what he conscientiously believes to be its just meaning and extent. But above all a lawyer will find his highest honour in a deserved reputation for

Preferring false charges  A lawyer, including a private prosecutor, may not prefer nor file false charges against another without being disciplined for his action 

To warrant disciplinary action against a lawyer, who prosecutes false charges or complaints, it must be shown that the charges are false and the lawyer knows them to be so. (malice or bad faith)

Introducing false evidence  A lawyer who introduces evidence in any proceeding that he knows is false violates his duty to do no falsehood nor consent to the doing of any. 

If a lawyer, through negligence in the performance of his duties as counsel for a party, failed to discover the falsity of the document which he offered in evidence, he may still be dealt with administratively notwithstanding lack of intent on his part to deceive

 Young v. Batuegas (2003) F: The Court suspended lawyers who filed a Manifestation with Motion for Bail on Dec 13, 2000, alleging that the accused voluntarily surrendered to a person in authority. The truth is that the accused only surrendered on Dec 14, 2000, as shown by the Certificate of Detention of NBI. Respondents declared that on Dec 13, upon learning that a 32

SIGMA LEGIS COPY

Rule 10.01 Truthfulness Towards the Court

NOTES (Agpalo)

LEGAL PROFESSION & ETHICS

H: A lawyer must be a disciple of truth. He swore upon his admission to the bar that he will “do no falsehood nor consent to the doing of any in court” and he shall “conduct himself as a lawyer according to the best of his knowledge and discretion with all good fidelity as well to the courts as to his clients.” Respondent lawyers fell short of the duties and responsibilities expected from them as members of the bar. Anticipating that their motion for bail will be denied by the court if it found that it had no jurisdiction over the person of the accused, they craftily concealed the truth by alleging that accused had voluntarily surrendered to a person in authority and was under detention.  Afurong v. Aquino (1999) F: Afurong filed a complaint for ejectment against Victorino Flores for non-payment of rentals. After the court issued a writ of execution, Flores sought the assistance of the Citizen’s Legal Assistance Office (CLAO). His case was assigned to Aquino, then still an employee of CLAO. After working on the case, Aquino was separated from the CLAO on Oct 1, 1975. But after this date, he still filed an urgent motion for postponement, signing his name as counsel for Flores and indicating the address of CLAO as his office address. Respondent failed to attend the pre-trial on Dec. 12 because he had to attend the hearing of a Habeas Corpus Case. This excuse was proven to be false as there were no such case. The SC suspended Afurong from the practice of law for six months. H: It is the duty of an attorney to counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law. Respondent should not have filed a petition for certiorari considering that there was no apparent reason for it than to delay the execution of a valid judgment. Furthermore, respondent committed falsehood when he stated that he had to attend another (nonexistent) hearing. Such act violates the canons of professional ethics which obliges an attorney to avoid the concealment of the truth from the court. Moreover, Aquino purposely allowed the court to believe that he was still employed with the

CLAO when in fact he had been purged from the said office.  Cuaresma v. Daquis (1975) F: Cuaresma’s lawyer filed a petition for certiorari on stating therein that his client had no knowledge of a previous civil case instituted by Daquis against him; that he was not given his day in court; that he was only given 3 days notice of the order for the demolition of his house. In fact, Cuaresma was aware of said civil case and that he was given notice of 30 days. He explained that what he meant was that he had no knowledge of the Civil case from 1968 –1970 and that he only had knowledge of the case after the decision was rendered. He further explained that it had been an honest mistake and that there was no deliberate attempt to mislead the Court. H: Though his explanation appears to be a mere afterthought there is the assumption of good faith in favour of respondent. Moreover, judging from the awkwardly-worded petition and even his compliance quite indicative of either carelessness or lack of proficiency in the handling of the English language, it isn’t unreasonable to assume that his deficiency in the mode of expression contributed to the inaccuracy of his statements. Every member of the bar should realize that candor in the dealings with the court is the very essence of honorable membership in the profession. RULE 10.02 NOT TO MISQUOTE OR MISREPRESENT CONTENTS OF PAPER  Rule 10.02. 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 law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved. NOTES (Agpalo) 

In citing the SC decisions and rulings, it is the bounden duty of courts, judges and lawyers to reproduce or copy the same word-for-word and punctuation-mark-forpunctuation-mark

 Insular Life Assurance Employees Assoc.-NATU v. Insular Life Assurance (1970) F: The SC denied the petition to cite the presiding judge of the CIR in contempt for misquoting a decision of the SC. H: The Court believes it is more a result of clerical ineptitude than deliberate attempt to mislead. The Companies have the prima facie right to rely on the quotation as it appears on respondent judge’s decision. However, the Court articulates it’s firm view that in citing this Court’s decision and rulings, it is the bounden duty of courts, judges and lawyers to reproduce or copy the same word-for-word and punctuation mark-for33

SIGMA LEGIS COPY

warrant of arrest was issued for their client, they filed the Manifestation with motion for bail with the trial court. Then they immediately fetched the accused in Cavite and brought him to the NBI to voluntarily surrender. However, due to heavy traffic, they arrived at the NBI at 2:00 am the next day; hence, the certificate of detention indicated the accused surrendered on Dec. 14

LEGAL PROFESSION & ETHICS

RULE 10.03 OBSERVE RULES OF PROCEDURE  Rule 10.03. A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice.  Rule 138.20(d) Duties of attorney’s—It is the duty of an attorney (d) 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 of law.

Rule 11.05. A lawyer shall submit grievances against a Judge to the proper authorities only. NOTES (Agpalo) Respect due to the courts.  A lawyer should conduct himself toward judges with that courtesy all have a right to expect and with the propriety which the dignity of the courts requires. 

This is not for the sake of the temporary incumbent of the judicial office but for the maintenance of its supreme importance. Respect of courts helps build high esteem and regard toward them which is essential to the proper administration of justice. It also guarantees the stability of their institution.



This duty also devolves upon students who will choose to enter the legal profession. They have as much the same duty as a member of the bar to observe and maintain the respect due the courts, and their failure to discharge such duty may prevent them from being inducted into the office of attorney

NOTES (Agpalo) 



Procedural rules are instruments in the speedy ad efficient administration of justice. They should not be used to derail such ends. They should not misuse them, as by filing multiple petitions regarding the same cause of action of by deliberately misreading the law to seek a reopening of a case long decided.

Obeying court orders.  Court orders no matter how erroneous they may be, must be respected especially by lawyers who are officers of the court. 

This is essential to the maintenance of government of laws and not of men.



It will be a trying ordeal for lawyers under certain conditions. It may happen that counsel possessed greater knowledge of the law that the judge who presides. However, discipline and self-restraint on the part of the bar under these conditions are necessary of the orderly administration of justice.



Lawyers are particularly called upon to obey court orders and processes. Court orders, however, erroneous they may be, must be respected especially by lawyers who are themselves officers of the court

A lawyer shall punctually appear at



Rule 11.03. A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the courts.

A lawyer who gives a clearly unsatisfactory explanation as to why he failed to comply with a lawful order or who simply ignores it commits an act within the meaning of the term “willful disobedience”.



“willful”—flagrant misconduct such as would indicate a disposition on the part of a lawyer so unruly as to affect his qualifications and standing for the further exercise of his profession.

CANON 11 RESPECT COURTS AND JUDICIAL OFFICERS

 Canon 11. A lawyer shall observe and maintain the respect due to the courts and judicial officers and should insist on similar conduct by others. Rule 11.01. A lawyer shall appear in court properly attired. Rule 11.02. court hearings.

Rule 11.04. A lawyer shall not attribute to a Judge motives not supported by the record or have no materiality to the case.

34

SIGMA LEGIS COPY

punctuation mark. Only from this Tribunal’s decisions and rulings do all other courts, as well as lawyers and litigants, take their bearings. Ever presenting the danger that if not faithfully and exactly quoted, the decisions and rulings of this Court may lose their proper and correct meaning.

LEGAL PROFESSION & ETHICS





A judge lacks the power, outside of his court, to defend himself against unfounded criticism. It is the duty of the lawyer to come to his defense for no other person than a lawyer who can better appropriately support the judiciary and judicial officers Guerrero v. Villamor (1989)

F: Consequent to the dismissal of some criminal cases for qualified theft against one Gloria Naval by respondent Judge Villamor, the offended party thru his lawyer and herein co-petitioner filed before the RTC an action for damages against respondent judge for knowingly rendering an unjust judgment in the aforesaid criminal cases. Respondent judge issued in criminal cases an Order of Direct Contempt of Court against herein petitioners, finding them guilty and sentencing them to 5 days imprisonment and a fine of P500.00 for degrading the respect and dignity of the court through the use of contemptuous language before the court. The SC held that the order of direct contempt was void because (1) it was issued without charge and hearing, and (2) it was irregularly issued as an incident in already terminated criminal cases. H: In this case, the statements are not contemptuous but merely descriptive of plaintiff’s cause of action. The Power to punish for contempt should be used sparingly and should be exercised only for purposes that are impersonal, the power being intended as a safeguard not for the judges as persons but for the functions they exercise. On the other hand, Lawyers should bear in mind their basic duty “to observe and maintain the respect due to the courts of justice and judicial officers and to insist on similar conduct by others” (Canon 11 CPR). This attitude is best shown through scrupulous preference for respectful language, is to be observed not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance.  In re Vicente Sotto (1949) F: Atty. Vicente Sotto, then a Senator of the Republic, wrote his opinion in the Manila Times regarding the SC’s decision, In re Angel Parazo which was then pending reconsideration. There the SC cited in contempt a reporter for his refusal to divulge his

source of news published in the paper. Some parts of Sotto’s statement include the following “I regret to say that our High Tribunal has not only erroneously interpreted [the Press Freedom Law] but that it is once more putting in evidence the incompetency or narrow-mindedness of the majority of its members. In the wake of so many blunders and injustices deliberately committed during these last years, I believe that the only remedy to put an end to so much evil, is to change the members of the Supreme Court. (He will introduce a bill in Congress reorganising the judicary)… the SC of today constituted a constant peril to liberty and democracy. It need to be said loudly, very loudly, so that even the deaf may hear: the Supreme Court of today is a far cry from the impregnable bulwark of Justice of those memorable times of Cayetano Arellano, Victorino Mapa, Manuel Araullo and other learned jurists who were the honour and glory of the Philippine Judiciary.” Sotto argues that the SC has no power to impose penalties on the citizens absent legislation. He also claims that he is exercising his freedom of speech and that his statement was done in utmost good faith. He claims he has no intention of offending any of the majority of the honourable members of the tribunal. The SC cited Sotto in contempt required him to show cause why he should not be disbarred. H: Mere criticism or comment on the correctness or wrongness, soundness or unsoundness of the decision of the court in a pending case made in good faith may be tolerated; because if well founded it may enlighten the court and contribute to the correction of an error if committed; but if it is not well taken and obviously erroneous, it should not influence the court in reversing or modifying its decision. But respondent does not merely criticize or comment on the decision of the Parazo case, which was then and still is pending reconsideration by this court upon petition of Angel Parazo. He not only intends to intimidate the members of this Court with the presentation of a bill in the next Congress reorganizing the SC and reducing the members of justices from eleven to seven who are “incompetent and narrow-minded” in order to influence the final decision of said case by this Court, and thus embarrass or obstruct the administration of justice. He also attacks the honesty and integrity of the SC into disrepute and degrading the administration of justice. His statement necessarily undermines the confidence of the people in the honesty and integrity of the members of this Court, and consequently to lower or degrade the administration of justice by the SC.. As a member of the bar and an officer of the courts, Sotto is duty bound to uphold the dignity and authority of this court, to which he owes fidelity according to the oath he has taken as such attorney, and not to promote distrust in the administration of justice. Respect to the courts guarantees the stability of other institutions, which without such guaranty would be resting on a very shaky foundation. It is also well settled that an attorney as an officer of the court is under special obligation to be respectful in his conduct and communication to the courts, he may be removed from office or stricken from the roll of attorneys as being guilty of flagrant 35

SIGMA LEGIS COPY

Defending judges from unjust criticism.  A lawyer should refrain from subjecting the judge to wild and groundless accusation, to discourage other people from so doing and to come to his defense.

LEGAL PROFESSION & ETHICS

RULE 11.01 PROPER ATTIRE  Rule 11.01. court properly attired.

RULE 11.03 PROPER LANGUAGE AND BEHAVIOUR  Rule 11.03. A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the courts. NOTES (Agpalo) Lawyer’s Courtesy  It must never be forgotten that a lawyer pleads; he does not dictate. He should be courageous, fair, and circumspect, not petulant, combative, or bellicose in his dealings with the court

A lawyer shall appear in



While criticism of judicial conduct is not forbidden and zeal in advocacy is encouraged, the lawyer must always act within the limits of propriety and good taste and with deference for the judges before whom he pleads his client’s cause

Courts have ordered a male attorney to wear a necktie and have prohibited a female attorney from wearing a hat. However, the prohibition of a dress whose hemline was five inches above the knee was held to be acceptable as such “had become an accepted mode of dress even in places of worship.”



A lawyer should not assail, without basis, the personal integrity of a judge and accuse him of misfeasance in an attempt to hide his own inadequacies and omissions to escape criticism of his client



The discharge of the lawyer’s duty to his client does not justify or require the use of defamatory or threatening words. Neither does the mistake of a judge in some of his rulings warrant the use of offensive language



There is no defense against the use in a pleading by a lawyer of disrespectful, threatening, abusive, and abrasive language. It cannot be justified by the constitutional right of free speech for such right is not absolute and its exercise must be within the context of a functioning and orderly system of dispensing justice



Where words are abrasive or insulting, evidence that the language employed is justified by the facts is not admissible as a defense

NOTES (Aguirre) 

(Agpalo)  

Barong Tagalog or a coat and tie Respect begins with the lawyer’s outward physical appearance in court. Sloppy or informal attire adversely reflects on the lawyer and demeans the dignity and solemnity of court proceedings. RULE 11.02 PUNCTUALITY  Rule 11.02. A lawyer shall punctually appear at court hearings. NOTES (Agpalo) 

A lawyer owes the court and his client the duty to punctually appear at court proceedings



Inexcusable absence from, or repeated tardiness in, attending a pre-trial or hearing may subject the lawyer to disciplinary action as his actions showing disrespect to the court make him guilty of contemptuous behavior

Judge’s Courtesy  The duty to observe and maintain respect is not a one-way duty from a layer to a judge. A judge should show no shortness of temper which merely detracts from the equanimity and judiciousness that should be the constant marks of a dispenser of justice 



A judge may utilize his opportunities to criticize and correct unprofessional conduct of attorneys but he may not do so in an insulting manner Sangalang v. IAC (1989) 36

SIGMA LEGIS COPY

misconduct. Respondent’s assertion that his statement was made in good faith and without intention of offending any member of the SC may mitigate but not exempt him from liability for contempt of court. It is also true that the constitutional guaranty of freedom of speech and the press must be protected to its fullest extent, but license or abuse of liberty of the press and of the citizen should not be confused with liberty in its true sense. As important as the maintenance of an unmuzzled press and the free exercise of the right of the citizen, is the maintenance of the independence of the judiciary.

LEGAL PROFESSION & ETHICS

H: The Court found Atty. Sangco’s statements disparaging, intemperate and uncalled-for. His suggestions that the Court might have been guilty of graft and corruption in acting on these cases are not only unbecoming, but comes, as well, as an open assault upon the Court’s honor and integrity. He should be aware that because of his accusations, he has done an enormous disservice to the integrity of the highest tribunal and to the stability of the administration of justice in general. Atty. Sangco is entitled to his opinion but not to a license to insult the Court with derogatory statements and recourses to argumenta ad hominem. In that event, it is the Court’s duty “to act to preserve the honor and dignity...and to safeguard the morals and ethics of the legal profession.” A lawyer’s "first duty is not to his client but to the administration of justice; to that end, his client's success is wholly subordinate; and his conduct ought to and must always be scrupulously observant of law and ethics." And while a lawyer must advocate his client's cause in utmost earnest and with the maximum skill he can marshal, he is not at liberty to resort to arrogance, intimidation, and innuendo. Certainly, it is the prerogative of an unsuccessful party to ask for reconsideration, but as we held in Laureta, litigants should not "'think that they will win a hearing by the sheer multiplication of words'". As we indicated the movants have raised no new arguments to warrant reconsideration and they can not veil that fact with inflammatory language.  In re Vicente Raul Almacen (1970) F: Atty. Vicente Raul Almacen was a counsel for defendant in civil case Calero vs. Yaptingchay. The trial court rendered judgment against his client. Both the CA and the SC dismissed his appeals. The latter did so via a minute resolution. Angered, Atty. Almacen filed a “Petition to Surrender Lawyer’s Certificate of Title” (Sept. 25, 1967) in protest against what he asserts as “a great injustice committed against his client by this SC.” He indicted the Court as a tribunal “peopled by men who are calloused to our

pleas for justice, who ignore without reasons their own applicable decisions and commit culpable violations of the Constitution with impunity.” He further said that “justice as administered by present members of the Supreme Court is not only blind, but also deaf and dumb.” He vowed to argue before the people’s court and disclosed the contents of the petition to the media. This was published in the Manila Times and the Manila Chronicles. The SC decided to withhold action until Almacen actually surrendered his certificate. But since no word came from him, the Court reminded him of his offer. Almacen replied that he has no pending petition as regards the Calero case. The SC then required Almacen to show cause “why no disciplinary action should be taken against him.” Denying the charges, he asked to give his reasons in an “open and public hearing.” SC warned him that if he did not give reasons for his request within 5 days, oral arguments will be deemed waived. Almacen explained that since the Court is “the complainant, prosecutor and Judge,” he preferred to be heard and to answer questions in a public hearing. He also asked for leave to file a written explanation, to which the Court consented. In his written explanation, Almacen offered no apology. SC called the answer “as undignified and cynical as it is unchastened.” Almacen repeated his “jeremiad of lamentations,” this time quoting from the Bible. He particularly attacked the minute resolution, assailing the justice system as “...deaf in the sense that no members of this Court has ever heard our cries for charity, generosity, fairness, understanding, sympathy and for justice; dumb in the sense that inspite of our beggings, supplications, and pleadings to give us reasons why our appeal has been DENIED, not one word was spoken or given...” H: Every citizen has the right to comment upon and criticize the actuations of public officers. The danger of confusing fury to an attack on one’s integrity, competence and honesty, “with imminent danger to the admin of justice” is the reason why the courts have been unwilling to inflict punishment on those who assail their actuations. The Court also treats with forbearance and restraint a lawyer who vigorously assails their actuations, provided it is done in respectful terms and through legitimate channels. For courageous and fearless advocates are the strands that weave durability into the tapestry of justice. The reason is that an attorney does not surrender his right as a citizen to criticize the decisions of the court in fair and respectful manner, and the independence of the Bar, as well as the judiciary, has always been encouraged by the courts. Criticism has been an important part of the traditional work of a lawyer. As a citizen and as officer of the court, a lawyer is expected not only to exercise his right, but also to consider it his duty to avail of such right. But the cardinal condition of all such criticism is that is shall be bona fide and shall not spill over the walls of decency and propriety. “Atty. Almacen used his proffered surrender of his lawyer’s certificate as a vehicle for his vicious tirade against this Court. He used vicious language and scurrilous innuendos that 37

SIGMA LEGIS COPY

F: Atty. Cezar Sangco, a former judge and counsel for petitioners Jose and Lutgarda Sangalang, was charged for contempt for using “intemperate and accusatory language” in his motion for reconsideration. In that motion, he claimed that the Court’s decision “reads more like a Brief for Ayala” and that the Court has “not only put to serious question its own integrity and competence but also jeopardized its own campaign against graft and corruption undeniably pervading the judiciary...” He also accused the Court of judicial arrogance. The SC suspended him from the practice of law for three months.

LEGAL PROFESSION & ETHICS

RULE 11.04 NOT TO ATTRIBUTE TO JUDGE MOTIVES  Rule 11.04. A lawyer shall not attribute to a Judge motives not supported by the record or have no materiality to the case. NOTES (Agpalo) 





The rule allows such criticism so long as it is supported by the record or it is material to the case. A lawyer’s right to criticize the acts of courts and judges in a proper and respectful way and through legitimate channels is well recognized. What a lawyer 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. 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 scrutiny. The cardinal condition of all such criticism is that it shall be bona fide, and shall not spill over the wall of decency and propriety.

RULE 11.05 GRIEVANCES AGAINST JUDGES—

 Rule 11.05. A lawyer shall submit grievances against a Judge to the proper authorities only.  Const art. VIII, sec. 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof. [the SC is the proper authority] NOTES (Agpalo) 

The duty to respect does not preclude a lawyer from filing administrative complaints against erring judges, or from acting as counsel for clients who have legitimate grievances against them.



The lawyer shall not file an administrative case until he has exhausted judicial remedies which result in a finding that the judge has gravely erred.

 Maceda v. Vasquez (1993) F: This prayer for preliminary mandatory injunction is with regard to whether the office of the ombudsman could entertain a criminal complaint for the alleged falsification by Judge Maceda of his certificate of service submitted to the SC, and assuming that it can, whether a referral should be made first to the SC. H: A judge who falsifies his certificate of service is administratively liable to the SC for serious misconduct and inefficiency (Sec. 1, Rule 140, Rules of Court) and criminally liable to the State under the Revised Penal Code for his felonious conduct. The Ombudsman could therefore entertain the criminal complaint. However, where a criminal complaint against a judge or other court employees arises from their administrative duties, the Ombudsman must defer action on said complaint and refer the same to the SC for determination whether said judges or court employees acted within the scope of their administrative duties. Otherwise, in the absence of any administrative action taken against Maceda, the investigation being conducted by the Ombudsman encroaches into the Court’s power of administrative supervision over all courts and its personnel, in violation of the doctrine of separation of powers. CANON 12 ASSIST IN SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE  Canon 12. A lawyer shall exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. Rule 12.01. 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 38

SIGMA LEGIS COPY

transcend the permissible bounds of legitimate criticism, picturing his client as a sacrificial victim at the altar of hypocrisy, a victim of silent injustices and short-cut justice. He caused the publication of his petition and he expressed no regret or apology. They could serve no other purpose but to gratify the spite of an irate attorney, attract public attention to himself and, more important of all, bring this Court and its members into disrepute and destroy public confidence in them to the detriment of the orderly administration of justice. Like any other Government entity in a viable democracy, the Court is not, and should not be, above criticism. But a critique of the Court must be intelligent and discriminating, fitting to its high function as the court of last resort. Valid and healthy criticism is by no means synonymous to obloquy, and requires detachment and disinterestedness. Any criticism of the Court must possess the quality of judiciousness and must be informed by perspective and infused by philosophy. It is an utter misapprehension, if not a total distortion, to say that the members of the Court are the complainants, prosecutors and judges all rolled up into one.

LEGAL PROFESSION & ETHICS proferrence. He should also be ready with the original documents for comparison with the copies.

of case and the prompt satisfaction of final judgments. 

The duty to assist in the administration of justice may be performed by doing no act that obstructs, perverts, or impedes the administration of justice and by faithfully complying with all his duties to the court and to his client. Examples of the former would include the duty to inform the court of any change of his address or of the death of his client.



Acts that amount to obstruction of the administration of justice may take many forms. They include such acts as instructing a complaining witness in a criminal case not to appear at the scheduled hearing so that the case against his client, the accused, would be dismissed. Ordinarily, obstruction of justice constitutes contempt of court, and citing the misbehaving lawyer for contempt and punishing him for such misbehavior may be sufficient to accomplish the end desired. However, the misbehavior may be of such character as to effect the offender’s qualifications as a lawyer for the practice of law. In such case, he may be disciplined as a lawyer for such misconduct.

Rule 12.02. A lawyer shall not file multiple actions arising from the same cause.

Rule 12.04. A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse court processes.  Rule 12.05 A lawyer shall refrain from talking to his witness during the break or recess in the trial, while the witness is still under examination. Rule 12.06 A lawyer shall not knowingly assist a witness to misrepresent himself or to impersonate another. Rule 12.07 A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him.

RULE 12.01 ADEQUATE PREPARATION

Rule 12.08 A lawyer shall avoid testifying in behalf of his client; except: a. on formal matters, such as mailing, authentication or custody of an instrument, and the like; or b. on substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel.

 Rule 12.01. 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 proferrence. He should also be ready with the original documents for comparison with the copies.

 CONST. art III, sec 6. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.  Rule 138 Sec 20(g). Duties of attorneys. – It is the duty of an attorney: (g) 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. NOTES (Agpalo) Duty to assist in the administration of justice  The first duty of a lawyer is not to his client but the administration of justice. As an officer of the Court, it is the duty of the lawyer to advance the Court’s objective of having a speedy, efficient, impartial, correct, and inexpensive adjudication

 Rule 18.02. A lawyer shall not handle any legal matter without adequate preparation. NOTES (Agpalo) 

Without adequate preparation, the lawyer may not be able to effectively assist the court in the efficient administration of justice. Non-observance of this rule might result in: 1) The postponement of the pre-trial or hearing, which would thus entail delay in the early disposition of the case, 2) The judge may consider the client non-suited or in default or 3) The judge may consider the case deemed submitted for decision without client’s evidence, to his prejudice.

RULE 12.02 FORUM SHOPPING  Rule 12.02. A lawyer shall not file multiple actions arising from the same cause. 39

SIGMA LEGIS COPY

Rule 12.03. A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting to the same or offering an explanation for his failure to do so.

LEGAL PROFESSION & ETHICS  Rule 12.03. A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting to the same or offering an explanation for his failure to do so. NOTES (Agpalo) 

RULE 12.04 COURT PROCESS  Rule 12.04. A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse court processes. NOTES (Agpalo) Tempering client’s propensity to litigate  While a client may withhold from his counsel certain facts or give him false information to attain his unlawful ends, a lawyer can easily see through the client’s action either before or at the early stage of the litigation 

NOTES (Agpalo) 

It is essential to an effective and efficient administration of justice that once a judgment has become final the winning party be not, through subterfuge, and misuse of legal process, deprived of that verdict.



Rule 12.02 stresses the affirmative duty of a lawyer to check against useless litigations. His signature in every pleading constitutes a certificate by him that to the best of his knowledge there is a good ground to support it and that it is not to interpose for delay. The willful violation of this rule may subject him to (1) appropriate disciplinary action or (2) render him liable for the costs of litigation.

RULE 12.03 NOT TO DELAY CASE

Where a lawyer’s motion for extension of time to file a pleading, memorandum or brief has remained unacted by the court, the least that is expected of him is to file it within the period asked for

If after his appearance a lawyer discovers that his client has no case, he may not unceremoniously abandon the action. He should advise his client to discontinue the action or to confess judgment, and if the client is determined to pursue it he should ask that he be relieved from professional responsibility

Lawyer to discourage appellate review  If a lawyer is honestly convinced of the futility of an appeal in a civil suit he should not hesitate to temper his client’s desire to seek appellate review of such decision for unless, he could show sufficient cause for reversal, he would only succeed in planting false hope in his client’s mind, increasing the burden on appellate tribunals, prolonging litigation unnecessarily and exposing his client to useless expenses. 



Nonetheless a lawyer should not, solely on his own judgment, let the decision become final by letting the period to appeal lapse, without informing his client of the adverse decision and of his candid advice in taking appellate review thereof, well within the period to appeal, so that the client may decide whether to pursue appellate review. Malonso v. Principe (2004)

40

SIGMA LEGIS COPY

 Rule 7, sec. 5. The plaintiff or principal party shall certify under oath in the complaining or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; b) if there is such other pending action or claim, a complete statement of the present status thereof; and c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within 5 days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion after hearing. The submission of false certification or non-compliance with any of the undertaking therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.

LEGAL PROFESSION & ETHICS

H:

[not pertinent]

 Manila Pest Control v. Workmen’s Compensation Commission (1968) F: Abitria, an employee of MPC suffered from tuberculosis found to have been contracted from his work. He was granted disability benefits by the Court but Manila Pest Control alleged infringement of due process as it was not served the decision by the court thru its counsel. It claimed that a writ of execution should have not have been ordered since it did not receive a copy of the decision. The decision was sent to Atty. Camacho, who was without any connection to the case, and not to its counsel Atty. Corpuz. The SC upheld the decision of the WCC which explained that when it delivered the decision to Atty. Corpuz, he refused to receive the decision alleging that he was no longer handling the case. He instead instructed WCC to deliver said decision to Atty. Camacho, who according to him was now handling the case. In view of said instruction, the employee of WCC handed the

copy of the decision to the receiving clerk in the Office of Atty. Camacho. The Court imposed treble costs against petitioner to be paid by Atty. Corpuz. H: It is sad to note that Atty. Corpuz is now impugning the delivery of the decision to Atty. Camacho when in fact the delivery of said decision was made per his instruction to the employee of WCC. This would not be the first time where out of excess of zeal and out of desire to rely on every conceivable defense that could delay if not defeat the satisfaction incumbent on one’s client, counsel would attempt to put the most favorable light on a course of conduct which certainly cannot be given the stamp of approval. Not that it would clear counsel of any further responsibility. His conduct leaves much to be desired. The effort to evade liability by petitioner by invoking due process guaranty must not be rewarded with success. An effort was made to serve petitioner with a copy of the decision; that such effort failed was attributable to the conduct of its own counsel. It is not enough that petitioner be required to pay the sum due to Abitria. The unseemly conduct of petitioner’s counsel calls for words of reproof. It is one thing to exert to the utmost one’s ability to protect the interest of one’s client. It is quite another thing to take advantage any unforeseen turn of events, if not to create one, to delay if not to defeat the recovery of what is justly due and demandable, especially so when the obligee is a poverty-stricken man suffering from a dreaded disease. The ancient and learned profession of the law stresses the fairness and honor; that must be ever kept in mind by everyone who is enrolled in its ranks and who expects to remain a member of a good standing. RULE 12.05 TO 12.07 PROPER BEHAVIOR TOWARDS WITNESSES  Rule 12.05 A lawyer shall refrain from talking to his witness during the break or recess in the trial, while the witness is still under examination. Rule 12.06 A lawyer shall not knowingly assist a witness to misrepresent himself or to impersonate another. Rule 12.07 A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him.  Rule 132, sec. 3. Rights and obligations of a witness. A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness: 1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; 2) Not to be detained longer than the interests of justice require; 3) Not to be examined except only as to matters pertinent to the issue; 41

SIGMA LEGIS COPY

F: In expropriation proceedings by the NAPOCOR against several lot owners in Bulacan, the president of an organization of the lot owners entered into a contract for legal services with Atty. Principe. The complainant Malonso, a member of the same organization, appointed on the other hand a certain Elfa as his attorney-in-fact on the matter of negotiation with NPC. Eventually, an amicable settlement was had between NAPOCOR and the lot owners. More than 2 years after the expropriation cases were instituted, Atty. Principe filed his motion to separate legal fees and filed his “Notice of Entry of Appearance” claiming that he is the legal counsel of the lot owners. The other lot owners including Malonso wrote a letter to NPC informing the latter that they have never authorized Sandama’s President to hire the services of Atty. Principe’s law firm to represent them. Atty. Principe filed several motions to ensure his claim to the 40% of the selling price of the properties being expropriated. An investigation conducted by the IBP recommended Atty. Principe’s suspension from the practice of law for two years on the ground that Atty. Principe had violated among others Rule 12.04 which says that “a lawyer shall not unduly delay a case, impede the execution of a judgment or misuse Court processes.” In its Resolution, the IBP Board ordained his suspension from the practice of law for 2 years. The SC however found that formal requisites of the investigation and resolution had not been complied with and dismissed the case requiring the IBP to comply with the procedure outlined in Rule 139-B in all cases involving disbarment and discipline of attorneys.

LEGAL PROFESSION & ETHICS

 P.D. No. 1829 Penalizing the obstruction of apprehension and prosecution of criminal offenders (1981)—ANNEXED

 Rule 12.08 A lawyer shall avoid testifying in behalf of his client; except: a. on formal matters, such as mailing, authentication or custody of an instrument, and the like; or b. on substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel. NOTES (Agpalo) 

The underlying reason for the impropriety of a lawyer acting in such dual capacity lies in the difference between the function of a witness and that of an advocate. The function of a witness is to tell the facts as he recalls then in answer to questions. The function of an advocate is that of a partisan. It is difficult to distinguish between the zeal of an advocate and the fairness and impartiality of a disinterested witness



The lawyer will find it hard to disassociate his relation to the client as a witness and his relation to the party as a witness. The dual relationship would invite embarrassing criticisms which could be harmful to the reputation of the profession.

NOTES (Agpalo) 

Rule 12.05. The purpose of this rule is to avoid any suspicion that he is coaching the witness what to say during the resumption of the examination.



Rule 12.06. A lawyer may interview witnesses in advance of trial or attend to their needs if they are poor but he should avoid any such action as may be misinterpreted as an attempt to influence the witness what to say in court. Court will not give weight on a testimony of a witness who admits having been instructed. A lawyer who presents a witness whom he knows will give a false testimony or is an impersonator may be subjected to disciplinary action.



Rule 12.07. The lawyer has a duty to always treat adverse witnesses and suitors with fairness and due consideration.



Rule 12.07. The client cannot be made the keeper of the lawyer’s conscience in professional matters. He has no right to demand that his counsel abuse the opposite party and the latter’s witnesses or indulge in offensive personalities. Improper speech is not excusable on the ground that it is what the client would say if speaking in his own behalf



Rule 12.07. If it is the judge who subjects the witness to harsh treatment, the lawyer has the right to protest in a respectful and dignified manner the action of the judge and to make the incident of record without being held liable administratively or for contempt of court

 PNB v. Uy Teng Piao (1932) F: Pursuant to a judgment of the CFI the mortgaged lands of Uy Teng Piao were sold. PNB obtained a waiver of the right to redemption. Uy Teng Piao alleged that the waiver was given with the agreement that the bank would not collect from him the balance of judgment. One of the attorneys for the bank during trial testified that the defendant renounced his right to redeem the parcel of land because a friend of the defendant was interested in buying it. H: With respect to the testimony of the bank’s attorney, we should like to observe that although the law does not forbid an attorney to be a witness and at the same time an attorney in a cause, the courts prefer that counsel should not testify as witness unless it is necessary and that they should withdraw from the active management of the case. Canon 19 of the Code of Legal Ethics provides that “when a lawyer is a witness for his client, except as to merely formal matters. Such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.”

CANON 13 RULE 12.08 NOT TO TESTIFY IN BEHALF OF A CLIENT

REFRAIN FROM ACTS GIVING APPEARANCE OF INFLUENCE 42

SIGMA LEGIS COPY

4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or 5) Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous conviction for an offense.

LEGAL PROFESSION & ETHICS

Rule 13.01. A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with Judges. Rule 13.02. A lawyer shall not make public statements in media regarding a pending case tending to arouse public opinion for or against a party. Rule 13.03. A lawyer shall not brook or invite interference by another branch or agency of the government by another branch or agency of the government in normal course of judicial proceedings. NOTES (Agpalo) 



Improper acts of a lawyer which give the appearance of influencing the court to decide a case in a particular way lessen the confidence of the public in the impartial administration of justice and should be avoided. Courts as impartial administrators of justice are entitled to disposed of their business in an orderly manner, free from outside interference obstrusive of their functions and tending to embarrass the administration of justice, just as litigants are entitled to have their causes tried fairly by an impartial tribunal, uninfluenced by publication, public clamor, bias, prejudice or sympathies.

 In Re: Published Alleged Threats Against Members of the Court in the Plunder Law Case Hurled by Atty. Leonard de Vera (2003) F: Atty. De Vera made some remarks to the Philippine Daily Inquirer regarding a pending case involving the constitutionality of the Plunder Law. In one statement, “he asked the SC to dispel rumors that it would vote in favor of a petition filed by Estrada’s lawyers to declare the plunder law unconstitutional” and that his group was greatly disturbed by the rumors. In another statement, he said that a decision in favour of the law’s unconstitutionality would trigger mass actions and the people would not just swallow any SC decision that is basically wrong. Atty. De Vera admitted to making the statements but that these were factually accurate and that these are within his right to freedom of speech. Also, his second statement is allegedly historically correct

(Marcos and Erap times) but that both statements are not to degrade the court, to destroy public confidence and to bring it into disrepute. The SC found that de Vera’s acts constitute indirect contempt and fined him P20,000. H: Freedom of speech is not absolute, and must be balanced with the requirements of equally important public interests, such as the maintenance of the integrity of the courts and orderly functioning of the administration of justice. De Vera is in abuse of his right. Unwarranted attacks on the dignity of the courts cannot be disguised as free speech, for the exercise of said right cannot be used to impair the independence and efficiency of courts or public respect thereof and confidence. His statements are not fair criticisms of any decision of the Court, but are threats made against it to force the Court to decide the issue in a particular manner, or risk earning the ire of the public. It tends to promote distrust an undermines public confidence in the judiciary, by creating the impression that the Court cannot be trusted to resolve cases impartially, uninfluenced by public clamor and other extraneous influences. 

Nestle Phils v. Sanchez (1987)

F: Two unions with pending cases before the SC had intermittent pickets in front of the Padre Faura gate of the SC building, obstructing access to and egress from the Court’s premises. They also constructed provisional shelters, set up a kitchen, littered the area causing it to be unhygienic and unsanitised, waved their red streamers and placards with slogans, and harangued the court with the use of loudspeakers. Two justices called the leaders of the unions and their counsel to inform them that the pickets constitute direct contempt of court, and that their petitions could not be heard until the pickets stop. Atty Espinas, the counsel for the unions, apologised and assured that the acts would not be repeated. The SC dismissed the contempt charges against Atty. Espinas. H: Grievances must be ventilated through proper channels (appropriate petitions, motions or other pleadings) in keeping with the respect due to the Courts as impartial administrators of justice entitled to proceed to the disposition of its business in an orderly manner, free from outside interference obstructive of its functions and tending to embarrass the administration of justice. The acts of the respondents are not only affront to the dignity of this Court, but equally a violation of the right of the adverse parties and the citizenry at large. The individuals cited are not knowledgeable in the intricacies of substantive and adjective laws, but the duty of advising them rests primarily on their counsel of record. For though the rights of free speech and of assembly are constitutionally protected, an attempt to pressure or influence courts of justice is no longer within the ambit of constitutional protection. 13.01 NO EXTRAORDINARY ATTENTION 43

SIGMA LEGIS COPY

 Canon 13. A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court.

LEGAL PROFESSION & ETHICS  Rule 13.01. A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with Judges.

attitude in the public mind respecting the alleged actions of the defendants to the pending proceedings. 

NOTES (Agpalo) The common practice of some lawyers making judges and prosecutors godfathers of their children to enhance their influence and their law practice should be avoided by judges and lawyers alike



A lawyer should not see a judge in chamber and talk to him about a case he is handling and pending in the judge’s court



A lawyer should not communicate to the judge the merits of a pending case



However, it is not incumbent on a lawyer to refuse professional employment in a case because it may be heard by a judge who is his relative, compadre or former colleague in office. The responsibility is on the judge not to sit in a case unless he is both free from bias and from the appearance thereof

Criticism of pending and concluded litigation  The court, in a pending litigation, must be shielded from embarrassment or influence in its all important duty of deciding the case. Thus, what a lawyer can ordinarily say against a concluded litigation and the manner the judge handed down the decision may not generally be said to a pending action. 

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.



A newspaper publication tending to impede, obstruct, embarrass or influence the courts in administering justice in a pending case constitutes criminal contempt, but the rule is otherwise after the litigation is ended.

13.02 NO PUBLIC STATEMENT TO MEDIA  Rule 13.02. A lawyer shall not make public statements in media regarding a pending case tending to arouse public opinion for or against a party. NOTES (Agpalo) 

Purpose: Newspaper publications regarding a pending or anticipated litigation may interfere with a fair trial, prejudice the administration of justice, or subject a respondent or a accused to a trial by publicity and create a public inference of guilt against him



This is the reason why certain proceedings are considered confidential and their publication prohibited until their final resolution by the courts, as in administrative complaints against judges and lawyers



Public officials charged with duty of prosecuting or defending actions in court may issue statements but such statements should avoid any statement of fact likely to create an adverse

Limitations on right to criticize  Right of lawyer to comment on or criticize the decision of a judge or his acts is not unlimited. Criticism must be bona fide and must not spill over the walls of decency and propriety. 

A publication in or outside of court tending to impede, obstruct, embarrass or influence the courts in the administration of justice in a pending suit, or to degrade the courts, destroy public confidence in them or bring them in any way to disrepute, whether or not there is a pending litigation, transcends the limits of fair comment. Such publication or intemperate and unfair criticism is a gross violation of the lawyer’s duty to respect the courts.



Press may not publicize proceedings declared confidential by law or by SC resolution until their final adjudication. No one may publicly comment thereon during their pendency. (ex. disciplinary actions against judges and lawyers)



Maintainance of an unmuzzled press and the free exercise of the rights of the citizens is as important as preservation of independence of the judiciary.

Right and duty of lawyer to criticize courts 44

SIGMA LEGIS COPY



Picketing is a form of public expression by a group or organization of sentiments or opinions on a particular matter. It should not be held to influence a court to decide a case in a particular way. The duty and responsibility of advising the picketers and their leaders that what they are doing is contemptuous rests primarily upon their lawyers who, as officers of the court, are duty-bound to apprise them of proper decorum and attitude towards courts of justice. (Cf. Nestle Phils. v. Sanchez supra at Rule 13.01)

LEGAL PROFESSION & ETHICS 

Guarantees of a free speech and a free press include the right to criticize judicial conduct, hence, this rule is not intended to prevent or preclude criticism of judicial acts of a judge.

recognizes the constitutionally protected freedom of the press and the right to public information, within the courthouse, the overriding consideration is still the paramount right of the accused to due process.



Whether the law is wisely or badly enforced is a fit subject for comment.



If people cannot criticize a judge the same as any other public official, public opinion will be effectively muzzled.



Courts are not sacrosanct. They should expect critical evaluation of their performance. For like the executive and the legislative branches, the judiciary is rooted in the soil of democratic society and nourished by the periodic appraisal of citizens whom it should serve.

In Estes v. Texas, it was held that the likely prejudices of a live coverage of a trial are: (1) When the judge allows the trial to be televised, the case automatically assumes an important status in the community such that everybody becomes interested. (2) The quality of the testimony in criminal trials will often be impaired. (3) There are additional responsibilities that the presence of television places upon the judge. (4) The presence of television may prove to be a form of mental—sometimes physical—harassment on the part of the defendant. (much like being in a police line-up)

H: This resolution of this case involves the weighing out of the freedom of the press and the right of the people to information on one hand, and the fundamental rights of the accused on the other, along with the constitutional power of the court to control its proceedings in ensuring a fair and impartial trial. Jurisprudence tells us that the right of the accused must be preferred. Television can work profound changes in the behavior of the people it focuses on. However, the actual effect of media cannot be quantified. The effect of television may escape the ordinary means of proof, but is not farfetched.

Finally, it said that unlike other government offices, courts do not express the popular will of the people. It is tasked to adjudicate on controversies based solely on what is submitted before them. A trial is not a free trade of ideas. The competing market of thoughts in not the known test of truth in a courtroom. The court is not unmindful of recent technological advances but to chance with the life or liberty of any person in a hasty bid to use and apply them, even in the presence of safety precautions, is a price too high to pay.  Martelino v. Alejandro (1970) F: A shooting occurred between some Muslim recruits (then undergoing commando training) and members of the AFP. Major Eduardo Martelino and the officers under him were charged for violation of the Articles of War as a result of this shootout. The SC denied the petition to disqualify the president of the general court martial, who acquired jurisdiction over the case because of the his admission that he read newspaper stories of the Corregidor incident, which some newspapers called the incident “the Corregidor massacre.” Petitioners contend that the case has received such an amount of publicity and was being exploited for political purposes in connection with the 1969 presidential election. They alleged tat the adverse publicity given in the mass media to the incident, coupled with the fact that it became an issue against the administration, was such as would unduly influence the members of the court-martial. News items that appeared in the Daily Mirror stated among other things that: “coffins are being prepared for the Philippine president.” An editorial from Manila Times said that this issue would be brought up in the elections and that it is a heavy load for the administration.

The court also pointed out that a public trial is not synonymous to a publicized trial. Although the court 45

SIGMA LEGIS COPY

 In re Request Radio TV Coverage (2001) F: The petitioner, in essence, sought to reverse the 1991 SC resolution denying the live coverage of a libel case filed by then President Aquino. In this case, petitioners requested the Court to allow live media coverage of the anticipated trial before the Sandiganbayan of criminal charges against Pres. Estrada. In the 1991 case, the court totally prohibited live radio and TV coverage because of the prejudice it poses to the defendant’s right to due process and to the fair and orderly administration of justice. The Court also held that the right of the people to information may be served by less distracting, degrading and prejudicial means. The radio and TV coverage allowed was limited to shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of official proceedings. No video shots or photographs were permitted during the trial proper. The SC denied the petition.

The court said that it is undeniable that these criminal cases have twice become focal points in the conflicting EDSA II and EDSA III. The magnitude of these events has divided the nation. The court cannot turn a blind eye on another possible extraordinary case of mass action being allowed to creep into the business of he courts.

LEGAL PROFESSION & ETHICS

Jurisprudence also states that there is nothing that proscribes the press from reporting events that transpire in the courtroom. But there is a reasonable likelihood that the prejudicial news prior to trial will prevent a fair trial. If publicity during the proceeding threatens the fairness of the trial, a new trial shall be ordered. HOWEVER, THE CASE AT BAR IS DIFFERENT. The publicity in this case did not focus on the guilt of the petitioners but rather on the responsibility of the government for what was claimed to be a “massacre” of Muslim trainees.If there was a “trial by newspaper” it was not of the petitioner but of the government. There is no showing that the courts martial failed to protect the accused from massive publicity. Protection would include: controlling the release of information; change the venue or postpone trial until the deluge of prejudicial publicity has subsided. Even granting that there is massive and prejudicial publicity, the petitioners do not contend that the respondents have been unduly influenced but simply that they might be.  In re Vicente Raul Almacen (1970) supra at Rule 11.03  Cruz v. Salva (1959) F: The SC publicly reprimanded Pasay City Fiscal Salva for conducting a reinvestigation of the Monroy murder not in his office, but in the Municipal Court’s session hall, to accommodate the big crowd wanting to witness the proceeding. Members of the press were present, and were even allowed to ask questions. Salva was willing to adopt the questions as the committee’s. H: Anent the investigation, the court was greatly disappointed and annoyed by the publicity and sensationalism. He committed a grievous error and poor judgment for which the court failed to find any satisfactory explanation. His actuations went beyond the bounds of prudence, discretion and good taste.

When such publicity and sensationalism is allowed, the whole thing becomes inexcusable even abhorrent, and in the interest of justice, is constrained to put an end to it. 13.03 NOT TO INVITE OUTSIDE INTERFERENCE  Rule 13.03. A lawyer shall not brook or invite interference by another branch or agency of the government by another branch or agency of the government in normal course of judicial proceedings.  Rule 11.05. A lawyer shall submit grievances against a Judge to the proper authorities only. NOTE (Aguirre) 

The basis for the rules is the principle of separation of powers

(Agpalo) 

The reason for Rule 13.03 is that a lawyer who invites interference by another branch or agency of government in the normal couse of judicial proceedings endangers the independence of the judiciary

 Maglasang v. People (1990) F: Khalyxto Maglasang was convicted in the court in San Carlos, Negros Occidental. His counsel, Atty. Castellano, filed for a petition for certiorari through registered mail. Due to noncompliance with the requirements, the court dismissed the petition and a motion for reconsideration. Atty. Castellano then sent a complaint to the Office of the President where he accused the 5 justices of the 2nd division, with biases and ignorance of the law or knowingly rendering unjust judgments. He accused the court of sabotaging the Aquino administration for being Marcos appointees, and robbing the Filipino people genuine justice and democracy. He also said that the SC is doing this to protect the judge who was impleaded in the petition and for money reasons. He alleges further that the court is too expensive to be reached by ordinary men. The court is also inconsiderate and overly strict and meticulous. When asked to show cause why he ought not be held in contempt, Castellano said that the complaint was constructive criticism intended to correct in good faith the erroneous and very strict practices of the justices concerned. He also said that the justices have no jurisdiction over his act and that they should just answer the complaint. The SC found him guilty of contempt and improper conduct and ordered to pay P1,000or imprisonment of 15 days, and to suffer 6 months suspension. H: The court found his comments scurrilous and contumacious. He went beyond the bounds of constructive criticism. What he said are not relevant to the cause of his client. They cast 46

SIGMA LEGIS COPY

H: The court cited US jurisprudence regarding the topic of trial by publicity. Irvin vs. Dowd marks the first time a state conviction was struck down solely on the ground of prejudicial publicity. Rideau vs. Louisiana is a case where a change of venue was granted because the fact that the people in that place had seen and heard the accused’s televised confession during interrogation would work to unjustly prejudice the accused. Televising a court trial would amount to a violation of due process. A carnival atmosphere would be created.

LEGAL PROFESSION & ETHICS aspersion on the Court’s integrity as a neutral and final arbiter of all justiciable controversies before it.

As an officer of the court, he should have known better than to smear the honor and integrity of the court just to keep the confidence of his client. Also, the complaint he filed, the most basic tenet of the system of government – separation of power has been lost. He should know that not even the President of the Philippines can pass judgment on any of the court’s acts.

(Agpalo) Attorney-client relationship  The relationship is strictly personal and highly confidential and fiduciary (something in trust for another). Thus, delegation is prohibited absent the client’s consent. It likewise terminates at death of either the client or the attorney. 

Courts have to recognise its creation on the faith of the client’s word. Likewise,



A client can terminate it any time with or without the consent of the lawyer. However, an attorney enjoys no similar right as he is an officer of the court and he may be permitted to withdraw only with the consent of his client or with the approval of the court



There should be a proper sense of vicarious detachment, less emotional involvement to adequately serve interest of client. It is therefore advisable not to appear for oneself or close relatives.



It demands undivided allegiance, a conspicuous and high degree of good faith, disinterestedness, candour, fairness, loyalty, fidelity and absolute integrity in dealings and transactions. It demands the utter renunciation of every personal advantage conflicting in any way



The relationship has to be reconciled with duties to the court and thus requires fidelity and loyalty in varying degrees within limits



Its preservation and protection encourage clients to entrust their legal problems to an attorney, which is paramount importance in administration of justice



In sum, an attorney must exert his best efforts and learning: to protect of client; to promptly account for any fund/ property entrusted by or received for client; not to purchase/ acquire any property or interest of client in litigation; to forever keep inviolate client’s secrets or confidence; not to represent an adverse party even after termination.

Chapter 4 The Lawyer and the Client NOTES (Regala v. Sandiganbayan) 



The nature of lawyer-client relationship is premised on the Roman Law concepts of 1. location conduction operarum (contract of lease and services) where one person lends his services and another hires them without reference to the object of which the services are to be performed, wherein lawyers’ services may be compensated by honorarium 2. mandato (contract of agency) wherein a friend on whom reliance could be placed makes a contract in his name, but gives up all that he gained by the contract to the person who requested him. BUT the lawyer-client relationship is more than that of the principal-agent and lessor-lessee. The modern day perception is that an attorney is more than a mere agent or servant because 1. he possesses special power of trust and confidence reposed on him by his client 2. he is as independent as the judge of the court 3. he occupies a “quasi-judicial” office since he is an officer of the Court and he exercises his judgment in the courses of action to be taken favorable to his client 4. In the creation of lawyer-client relationship, there are rules, ethical conduct and duties

Sufficiency of Employment  A lawyer has no power to act as counsel or legal representative for a person without being retained nor may he appear for a party in a case without being employed unless by leave of court 47

SIGMA LEGIS COPY

The explanation of Castellano in his negligence in the filing of the petition for certiorari did not render his negligence excusable. It is clear that the case was lost not by the alleged injustices Castellano irresponsibly ascribed to the members of the court, but his inexcusable negligence and incompetence.

that breathe life into it, among those, the fiduciary duty to his client which is of a very delicate, exacting and confidential character, requiring a very high degree of fidelity and good faith that is required by reason of necessity and public interest.

LEGAL PROFESSION & ETHICS





The essential feature of the relation of attorney and client is the fact of 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 a lawyer It is sufficient, to establish the professional relation, that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession There is an implied contract of professional employment where an attorney appears on behalf of a party without the latter interposing any objection thereto



In the absence of a written retainer, the establishment of the attorney-client relationship depends upon the circumstances of each case



To employ an attorney one has to have legal capacity to do so. Minors/ incompetents must have a general guardian/ guardian ad litem has to employ an attorney.

Retainer  Retainer, defined: (1) an act of client by which he engages services of an attorney to render legal advice, defend or prosecute his cause in court; (2) fee which a client pays to an attorney when latter is retained (retaining fee) 

General retainer, defined: secure beforehand services of attorney for any legal problem that may afterward arise



Special retainer, defined: particular case or service



Retaining fee, defined: preliminary fee paid to insure and secure future services, to remunerate him for being deprived, by being retained by one party. It prevents undue hardship resulting from the rigid observance of the rule forbidding him from acting as counsel for other party

Employment of a law firm 

The employment of a law firm is equivalent to the retainer of a member thereof even though only one of them is consulted

CANON 14 SERVICE TO THE NEEDY  Canon 14. to the needy.

A lawyer shall not refuse his services

Rule 14.01. A lawyer shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life, or because of his own opinion regarding the guilt of said person. Rule 14.02. A lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de oficio or as amici curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid. Rule 14.03. A lawyer may refuse to accept representation of an indigent client if: a. he is not in a position to carry out the work effectively or competently; b. he labors under a conflict of interests between him and the prospective client or between a present client and the prospective client. Rule 14.04. A lawyer who accepts the cause of a person unable to pay his professional fees shall observe the same standard of conduct governing his relations with paying clients.  Rule 2.01. A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed.

 R.A. 6033. An act requiring courts to give preference to criminal cases where the party or parties involved are indigents (1969)—ANNEXED  R.A. 6034. An act providing transportation and other allowances for indigent litigants. (1969)— ANNEXED  RA 6035. An act requiring stenographers to give free transcript of notes to indigent and low income litigants and providing a penalty for the violation thereof. (1969)— ANNEXED NOTES (Agpalo) 



A private practitioner, as a general rule, is not obliged to act as counsel for a person who may wish to become his client. He has the right to decline employment. Canon 14 provide the exceptions to the general rule and emphasize the lawyer’s public responsibility of rendering legal services to the needy and the oppressed who are unable to pay attorney’s fees. In such cases, refusal is the exception rather than the rule. 48

SIGMA LEGIS COPY



LEGAL PROFESSION & ETHICS RULE 14.01 AVAILABILITY OF SERVICES REGARDLESS OF STATUS

be honestly debatable under law. He is not to encourage the commencement or the continuance of an action or delay any man’s cause, for any corrupt motive or interest. He must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or injure the opposite party or to work oppression or wrong. If he were to take a bad civil case for a plaintiff, it will only be to advise him not to file the action or to settle it with the claimant. If he were to accept the defense of a bad civil case against a defendant, it will either be to exert his best effort toward a compromise or, to tell his client to confess judgment

 Rule 14.01. A lawyer shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life, or because of his own opinion regarding the guilt of said person.

NOTES (Jardeleza) 

Rule 14.01 applies only to criminal cases.

(Agpalo) 

Regardless of his personal feelings, a lawyer should not decline representation because a client or a cause is unpopular or community reaction is adverse



Rule 14.01 makes it his duty not to decline to represent the accused regardless of his opinion as to his guilt.



In criminal cases: easy to take accused because of presumption of innocence and proof beyond reasonable doubt.

In Civil Actions  In a civil action, the rules and ethics of the legal profession enjoin a lawyer from taking a bad case, and he certainly knows whether a civil suit is good, bad, or honestly debatable under the law.

RULE 14.02 PROVIDING COUNSEL DE OFICIO 1.

Counsel de Oficio

 Rule 14.02. A lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de oficio or as amici curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid.  Rule 138 sec. 20 (h), Duties of attorneys. – It is the duty of an attorney: (h) Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed;  Rule 138, sec. 31 Attorney’s for destitute litigants.—A court may assign an attorney to render professional aid free of charge to any party in a case, if upon investigation it appears that the party is destitute and unable to employ an attorney, and that the services of counsel are necessary to secure the ends of justice and to protect the rights of the party. It shall be the duty of the attorney so assigned to render the required service, unless he is excused therefrom by the court for sufficient cause shown.  Rule 116, sec. 6. Duty of court to inform accused of his right to counsel.—Before arraignment, the court shall inform the accused of his right to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself in person or has employed counsel of his choice, the court must assign a counsel de oficio to defend him.



The attorney’s signature in every pleading constitutes a certification by him that there is good cause to support it and that it is not interposed for delay, and a willful violation of such rule may subject the lawyer to disciplinary action.

 Rule 116, sec. 7. Appointment of counsel de oficio— The court shall appoint a counsel de oficio to defend a client, considering [1] the gravity of the offense, [2] the difficulty of the questions that may arise, [3] and the experience and ability of the appointee. The counsel must be [1] a member of the bar in good standing [2] or, in localities without lawyers, any person of good repute for probity and ability



It is the lawyer’s duty to counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to

 Rule 116, sec. 7. Time for counsel de oficio to prepare for arraignment. — Whenever a counsel de oficio is appointed by the court to defend the accused at the arraignment, he shall 49

SIGMA LEGIS COPY

 Rule 138, sec. 20 (h-i). Duties of attorneys.— It is the duty of an attorney: (h) Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed. (i) 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.

LEGAL PROFESSION & ETHICS be given a reasonable time to consult with the accused as to his plea before proceeding with the arraignment.

attorney’s regular practice and the possibility that the compensation for counsel de oficio will be considered as a regular source of income.

 Rule 124 (Case on Appeal in the CA), sec. 2. Appointment of counsel de oficio for the accused.—If it appears from the record of the case transmitted that [1] the accused is confined in prison, [2] is without counsel de parte on appeal, or [3] has signed the notice of appeal himself, the clerk of court of the CA shall designate a counsel de oficio. An appellant who is not confined in prison may, upon request, be assigned a counsel de oficio within the 10 days from receipt of the notice to file brief and he establishes his right thereto by affidavit.

Assignment from the IBP  The IBP has established legal aid offices throughout the country 

2.

Rule 138, sec. 31 is the general rule for all indiegent litigants as it speaks of the attorney for destitute litigants. Rule 116 sec. 6 & 7 and Rule 124, sec. 2 refer to the “accused” in a criminal case and counsel de oficio is used only for the “accused” in a criminal proceeding.

Amicus Curiae  Rule 138, sec. 36. —Amicus curiae.—Experience and impartial attorney’s may be invited by the Court to appear as amici curiae to help in the disposition of issues submitted to it.

NOTES (Aguirre) 

Legal aid is not a matter of charity. It is a means for the correction of social imbalance that may and often do lead to injustice, for which reason it is a public responsibility of the bar

NOTES (Agpalo) 

Amicus curiae, defined: A friend of the court;” a “bystander” (usually a counsellor) who interposes or volunteers information upon some matter of law in regard to which the judge is doubtful or mistaken.



A lawyer should not decline an appointment by the court as amicus curiae except for a valid cause

(Agpalo)



Counsel de Oficio, defined: a counsel, appointed or assigned by the court, from among such members of the bar in good standing who by reason of their experience and ability, may adequately defend the accused. One of the obligations incident to the status and privilege of a lawyer to practice law is to represent the poor and the oppressed in the prosecution of their claims or the defense of their rights

Assignment as counsel de oficio  If a person who is under the investigation for the commission of an offense cannot afford the services of a counsel, he must be provided with one; but not if the client wants or expresses the desire to have counsel de parte.. 



Every lawyer should welcome his appointment as counsel de oficio as an opportunity to render public service, show that the practice of law is a profession, and demonstrate that the discharge of his duties does not depend upon payment. A lawyer should not however be frequently designated counsel de oficio. The burden of an

 P.D. 543. Authorizing the designation of municipal judges and lawyers in any branch of the government service to act as counsel de oficio for the accused who are indigent in places where there are no available practicing lawyers. (1974)—ANNEXED RULE 14.03 VALID GROUND FOR REFUSAL  Rule 14.03. A lawyer may refuse to accept representation of an indigent client if: a. he is not in a position to carry out the work effectively or competently; b. he labors under a conflict of interests between him and the prospective client or between a present client and the prospective client. RULE 14.04 SAME STANDARD OF CONDUCT FOR PAYING AND NON-PAYING CLIENTS  Rule 14.04. A lawyer who accepts the cause of a person unable to pay his professional fees shall observe the 50

SIGMA LEGIS COPY



LEGAL PROFESSION & ETHICS NOTES (Agpalo) 

This canon is based on the character of the attorney-client relationship which is strictly personal and highly confidential and fiduciary. Only in such a relationship can a person be encouraged to repose confidence in an attorney.

 Canon 15. A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his clients.



Rule 15.01. 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.

The canon therefore is required by necessity and public interest and is based on the hypothesis that abstinence from seeking legal advice in a good cause is an evil which is fatal to the administration of justice.

RULE 15.01 AND 15.03 CONFLICT OF INTEREST

CANON 15 OBSERVE CANDOR, FAIRNESS AND LOYALTY

Rule 15.02. A lawyer shall be bound by the rule on privileged communication in respect of matters disclosed to him by a prospective client.

 Rule 15.01. 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 15.03. A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.

 Rule 15.03. A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.

Rule 15.04. A lawyer may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in settling disputes.

 Art. 209 Revised Penal Code. Betrayal of trust by an atorney. or solicitor.—Revelation of Secrets.—…The same penalty shall be imposed upon any attorney or solicitor (procurador judicial) who, having undertaken the defense of a client or having received confidential information from said client in a case, shall undertake the defense of the opposing party in the same case, without the consent of his first client. [the first part of this provision appears at Rule 15.02]

Rule 15.05. A lawyer when advising his client shall give a candid and honest opinion on the merits and probable results of the client’s case, neither overstating nor understanding the prospects of the case. Rule 15.06. A lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body.

NOTES (Agpalo) 

It is the duty of a lawyer to disclose and explain to the prospective client all circumstances of his relations to the parties and any interest in or any 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, so that the client may not lose confidence in him, which may even affect his fee. If the lawyer does not disclose anything, a client may assume the lawyer has no interest which will interfere with his devotion to the cause confided to him or betray his judgment.

Rule 15.07. A lawyer shall impress upon his client compliance with the laws and the principles of fairness. Rule 15.08. A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity. CANON 15. OBSERVE CANDOR, FAIRNESS AND LOYALTY  Canon 15. A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his clients.

Duty to decline employment  It is his duty to decline employment in any matter which may involve representing conflicting interests  He should not accept employment from another on a 51

SIGMA LEGIS COPY

same standard of conduct governing his relations with paying clients.

LEGAL PROFESSION & ETHICS







Although there is no statutory restriction for a lawyer to be an advocate and a witness for a client in a case, the canons of the profession forbid him from acting in that double capacity as he will find it difficult to disassociate his relation to the client as a lawyer and as witness. A lawyer generally should not refuse services to the needy. However, he may refuse if he is not in a position to carry it out effectively or competently or he labors under a conflict of interest between him and the prospective client or between his present client and the prospective client.

Test of Conflict of Interest  Here are some tests employed to determine the existence of conflicting interests. 1. when, on behalf of one client, it is the attorney’s duty to contest for that which his duty to another client requires him to oppose or when the possibility of such situation will develop; 2. whether the acceptance of the new relation will prevent a lawyer from the full discharge of his duty of undivided fidelity and loyalty to his client or will invite suspicion of unfaithfulness in the performance thereof; and 3. whether a lawyer will be called upon in his new relation to use against his first client any knowledge acquired in the previous employment. 



The proscription against representation of conflicting interests finds application where the conflicting interests arise with respect to the same general matter and is applicable however slight such adverse interest may be. It applies although the attorney’s intentions and motives were honest and he acted in good faith. Rule against representing conflicting interests applies even if the conflict pertains to the lawyer’s private activity or in the performance in

a non-professional capacity, and his presentation as a lawyer regarding the same subject matter. Effect of termination of attorney-client relation  Termination of relation of attorney and client provides no justification for a lawyer to represent an interest adverse to or in conflict with that of the former client. Neither may he do anything injurious to his former client nor use against former client any knowledge or information gained. 

Reason: client’s confidence, once reposed, cannot be divested by the expiration of professional employment.

Acquisition of confidential information immaterial  The relationship prohibits the lawyer from accepting professional employment from client’s adversary either in the same case or in a different but related action applies irrespective of whether or not the lawyer has acquired confidential information from his former client. 

Reason: if rule is made to depend on acquisition of confidential info, it will require investigation into the case and will only lead to the revelation of matters in advance to client’s prejudice. It will also violate attorney-client relationship.

Foundation of, and reason for, the rule  Founded on principles of public policy and good taste. It springs from attorney’s duty to represent client with undivided fidelity and to maintain inviolate the client’s confidence. 

Reason: the attorney-client relationship is one of trust and confidence. A lawyer knows everything about the case, hence, he must not be given opportunity to take advantage of that knowledge, otherwise the profession will suffer.



Rule is designed not only to prevent dishonest practitioner from fraudulent conduct but also to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, and to protect him from unfounded suspicion of professional misconduct.



An attorney should not only keep inviolate his client’s confidence but should likewise avoid the appearance of treachery and double-dealing.

Opposing clients in same or related suits  An attorney who appears for opposing clients in the same or related actions puts himself in that awkward position where he will have to contend on behalf of one client that which he will have to oppose on behalf of the other client. He cannot give disinterested advice to both clients but will instead be called on to use confidential information against 52

SIGMA LEGIS COPY



matter adversely affecting any interest of his former client with respect to which confidence has been reposed. He should not accept employment as an advocate in any matter in which he had intervened while in the government service. He should not accept employment the nature of which might easily be used as a means of advertising his professional services or his skill. (ex. advice column)

LEGAL PROFESSION & ETHICS one client in favor of the other in view of the identicalness or relatedness of the subject. Even though the opposing clients, after full disclosure of the fact, consent to the attorney’s dual representation, the lawyer should, when his clients cannot see their way clear to settling the controversy amicably, retire from the case.

Opposing clients in unrelated actions  A lawyer owes loyalty to his client not only in the case in which he has represented him but also after the relation of attorney and client has terminated because it is not good practice to permit him afterwards to defend in another case another person against his former client under the pretext that the case is distinct from, and independent of, the former case. 

It is improper for a lawyer to appear as counsel for one party against the adverse party who is his client in another totally unrelated action. The attorney in that situation will not be able to pursue, with vigor and zeal, the client’s claim against the other and to properly represent the latter in the unrelated action; or, if he can do so, he cannot avoid being suspected by the defeated client of disloyalty of partiality in favor of the successful client.

New client against former client  A lawyer cannot represent a new client against a former client only when the subject matter of the present controvery is related, directly of indirectly, to the subject matter of the previous litigation in which he appeared for the former client. He may properly act as counsel for a new client, with full disclosure to the latter, against a former client in a matter wholly unrelated to that of the previous employment, there being no conflict of interests. 

Reason: what a lawyer owes to former client is to maintain inviolate the client’s confidence or to refrain from doing anything which will injuriously affect him in any matter which he previously represented him; in this case, duty does not arise



Where subject matter of present suit between the lawyer’s new client and his former client is in some way connected, prohibition applies even if no confidential information was acquired.

Conflicting duties  A lawyer may not, as an employee of a corporation whose duty is to attend to its legal



A lawyer may not, as counsel for a client, attack the validity of the instrument prepared by him

Attorney’s interest vs. Client’s interest  An attorney should not put himself in a position where selfinterest tempts him to do less than his best for his client. (e.g., it is improper to have financial stakes in subject matter of suit brought on behalf of his client) Rule applicable to law firm  Where a lawyer is disqualified or forbidden from appearing as counsel in a case because of conflict of interests, the law firm of which he is a member as well as any member, associate or assistant is similarly diqualified or prohibited from so acting. 

This rule is a corollary of the rule that the employment of one member of a law firm is considered as an employment of the law firm and that the employment of a law firm is equivalent to a retainer of the members thereof.

Limitations to general rule  The prohibition against representing conflicting interests does not apply: 1. where no conflict of interests exists (e.g. a lawyer may represent new client against former client where both actions are unrelated and where lawyer will not be called to oppose what he had espoused on behalf of former client not use confidential info against former client.) 2. where the clients knowingly consent to dual representation in writing  Lawyer may represent conflicting interests before it reaches the court but only after full disclosure of the facts and express written consent of all parties.  Where representation by a lawyer is for both opposing parties, their written consent may enable the lawyer to represent them before but not after their controversy has reached the court. After the controversy has reached the court, the lawyer cannot, even with the parties’ written consent, represent both of them without being held administratively liable as an officer of the court.  Disclosure should include thorough explanation of nature and extent of conflict and possible adverse effects of dual representation. This should include disclosure of the lawyer’s present and/or former clients who have conflicting interests.  Advantage: a mutual lawyer, impartial and with honest motivations, may be better situated to 53

SIGMA LEGIS COPY



affairs, join a labor union of employees in that corporation because the exercise of the union’s rights is incompatible with his duty as a lawyer for his corporate client

LEGAL PROFESSION & ETHICS

Effects of representation of conflicting interests  Representation of conflicting interests subjects the lawyer to disciplinary action. The reason is that the representation of conflicting interests not only constitutes malpractice but also a violation of the confidence which results from the attorney-client relationship, of the oath of a lawyer (in that he did not serve his client’s interest well) and of his duty to both the client and the court.



If representation of conflicting interests is unknown and works prejudice against new client, judgment against the latter may be set aside. Basis: a lawyer disqualified from appearing on account of inconsistency of duties is presumed to have improperly and prejudicially advised and represented the party from beginning to end of litigation. Two questions to be asked: (1) Did the attorney discharge or have opportunity to discharge conflicting interests? (2) Did the new client suffer prejudice? If yes to both, adverse judgment against new client may be justified. 

Attorney’s right to be paid for his services to former client may be affected by representation of conflicting interests, only if 2 matters are related and the former client objected to such representation. But new client may not defeat attorney’s right to fees in the absence of concealment and prejudice by reason of attorney’s previous professional relationship with opposing party.

 San Jose Homeowners v. Romanillo (2005) F: In 1985 Atty. Romanillos represented San Jose Homeowners Association, Inc. (SHJAI) before the Human Settlements Regulation Commission in a case against Durano and Corp., Inc. (DCI) for violation of the Subdivision and Condominium Buyer’s Protection Act. While still the counsel for SHJAI, Atty. Romanillos represented the spouses Montealegre in requesting for SJHAI’s conformity to construct a building on Lot. No. 224 to be purchased from Durano. When the request was denied, respondent applied for clearance before the HLURB in behalf of the Montealegre. SJHAI terminated Atty. Romanillo’s services as counsel. Atty. Romanillo’s went further and acted as counsel for Lydia Durano-Rodriguez who substituted for DCI in aforementioned civil case. SHJAI filed a disbarment case against Atty. Romanillos for representing conflicting interests. In 1999 the SC recommended the dismissal of the complaint with admonition that respondent should observe extra care and diligence in the practice of his profession. Notwithstanding the admonition, Atty. Romanillos continued representing Lydia Durano-Rodriguez before the CA and SC. Thus, a second disbarment case was filed against him for violation of the March 1999 Resolution and for his alleged deceitful conduct in using the title “Judge” although he was not honorably discharged from the judiciary being found guilty of grave and serious misconduct in a previous case Zarate vs. Judge Romanillos. Atty. Romanillos had used the title “Judge” in his office letterhead, correspondences, and on billboards which were erected in several areas within the Subdivision. The SC disbarred him. H: It is inconsequential that petitioner never questioned the propriety of respondent’s continued representation of Rodriguez. The lack of opposition does not mean tacit consent. As long as the lawyer represents inconsistent interests of two or more opposing clients, he is guilty of violating his oath. Rule 54

SIGMA LEGIS COPY

3.

work out an acceptable settlement since he has confidence of both parties  A lawyer may represent new client against former client only after full disclosure and written consent. Former client’s written consent constitutes a release from obligation to keep inviolate the client’s confidences or to desist from injuriously affecting him in any matter which he previously represented.  Where circumstances show parties require independent counsel, or where lawyer may be suspected of disloyalty, he should immediately withdraw from the case.  General rule that a lawyer may be allowed to represent conflicting interests, where parties consent, applies only where one is a former client and the other is a new one, not where both are current clients.  Lawyer may not represent conflicting interests, even with consent, where the conflict is between the attorney’s interest and that of a client (self-interest should yield to client’s interest) or between a private client’s interest and that of the gov’t or any of its instrumentalities (public policy and public interest forbid dual representation). where no true attorney-client relationship is attendant  Absence of true attorney-client relationship either with the attorney or with the law firm of which he is a member makes the prohibition inapplicable.  Exception: attorney’s secretary, stenographer or clerk who, in such capacity, has acquired confidential information from attorney’s client, may not accept employment or, after admission to the bar, represent an interest adverse to that of atty’s client.

LEGAL PROFESSION & ETHICS

 Hornilla v. Salunat (2003) F: Members of the Philippine Public School Teachers Association (PPSTA) filed an intracorporate case against members of the Board of Directors before the SEC and filed a complaint before the Ombudsman for unlawful spending and the undervalued sale of real property of PPSTA. Atty. Salunat, the retained counsel of PPSTA, represented the members of the Board of Directors in these cases. Complainants contend that Atty. Salunat was guilty of conflict of interest because he was engaged by the PPSTA, of which complainants were members, and was being paid out of its corporate funds. The SC admonished Atty. Salunat. H: There is conflict of interest when a lawyer represents inconsistent interest of two or more opposing parties. The test is whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim, but it is his duty to oppose it for the other client. Also, if the acceptance of the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation to use against his first client any knowledge acquired through their connection. Another test is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double-dealing in the performance thereof. In this case, the court is convinced that a

lawyer engaged as counsel for a corporation cannot represent members of the same corporation’s board of directors in a derivative suit brought against them. To do so with be tantamount to representing conflicting interests. Though Salunat claims he only filed a pleading for dismissal, but in the filing of the pleading, he necessarily entered his appearance. Again, there is conflict of interests, considering the complaint in the Ombudsman, albeit in the name of the individual members of the PPSTA, was brought in behalf of and to protect the interests of the corporation.  Dee v. CA (1989) F: Donald Dee and his father went to the residence of Atty. Amelito Mutucto seek Mutuc’s advice regarding the alleged indebtedness of Dee’s brother Dewey to Ceasar’s Palace Casino in Las Vegas. Mutuc pursued the matter and eventually freed Dewey from the claim of the casino. Mutuc then sent the Dees several demand letters for the P50k balance for his attorney’s fees and consequently filed a suit for collection of attorney’s fees and refund of transportation fare. The Dees denied the existence of any professional relationship of attorney and client, claim that the initial visit was an informal one and that the services were not specifically contracted. They also claimed that Mutuc, as the representative of Caesar’s Palace in the Philippines, worked for the interest of the casino. H: The absence of a written contract will not preclude the finding that there was a professional relationship which merits attorney’s fees for professional fees rendered. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied. As to Mutuc being employed by the casino, the court said that though an attorney is generally prohibited from representing parties with contending positions, at a certain stage of the controversy, a lawyer may represent conflicting interests with the consent of the parties. A common representation may work to the advantage of the parties since a mutual lawyer with honest motivations and impartially cognizant of the parties’ disparate positions, may well be better situated to work out an acceptable settlement of their differences, being free of partisan inclinations and acting with the cooperation and confidence of the parties Because the petitioner was not unaware of these contending interests, he actually consented to them and cannot now decry the dual representation that he postulates. RULE 15.02 PRIVILEGED COMMUNICATION  Rule 15.02. A lawyer shall be bound by the rule on privileged communication in respect of matters disclosed to him by a prospective client.  Art. 209 Revised Penal Code. Betrayal of trust by an atorney. or solicitor.—Revelation of Secrets.—In addition to 55

SIGMA LEGIS COPY

15.03 mandates that a lawyer shall not represent conflicting interests except by written consent of all concerned parties after a full disclosure. Also, respondent’s continued use of the title “Judge” violated Rules 1.01 and 3.01 prohibiting lawyer from engaging in deceitful conduct and from using any misleading statement or claim regarding qualifications or legal services. He resigned from being a judge during the pendency of a case where he was eventually found guilty of illegal solicitation and receipt of P10,000 from a party litigant and would have been dismissed from the service had he not resigned. The title “Judge” should be reserved only to judges, incumbent and retired, and not to those who were dishonorably discharged from the service. This is not respondent’s first infraction as an officer of the court and a member of the legal profession. He was stripped of his retirement benefits and other privileges in Zarate case and he got off lightly with just an admonition in the 1999 resolution. He manifested undue disrespect to our mandate and exhibited propensity to violate the laws. His disbarment is consequently warranted.

LEGAL PROFESSION & ETHICS

NOTES (Aguirre) 

Exceptions to privilege 1. When a lawyer is accused by the client and he needs to reveal information to defend himself 2. When the client discloses the intention to commit a crime or unlawful act.

(Agpalo) 

Matters disclosed by a prospective client to a lawyer are protected by the rule on privileged communication even if the prospective client does not thereafter retain the lawyer or the latter declines the employment.



Reason: to make prospective client free to discuss whatever he wishes with the lawyer without fear that what he tells the lawyer will not be divulged nor used against him, and for the lawyer to be equally free to obtain information from the prospective client.

 People v. Sandiganbayan (1997) F: In 1985, the Director of Lands sought cancellation of a patent and certificate of title procured by Paredes, Provincial Attorney of Agusan del Sur, then Governor and Congressman, through free patent. The patent and certificate were cancelled as the trial court found it was obtained thru fraudulent means. The Tanodbayan investigated Paredes for allegedly using former position as Provincial Attorney to influence and induce Bureau of Lands officials to favorably act on his application. A criminal case was filed before Sandiganbayan. Sansaet was Paredes’s counsel. Sansaet filed a MR on the ground that filing of case would constitute double jeopardy since a perjury case had been ordered dismissed by the court upon recommendation of DOJ. He attached copy of (1) dismissal order (2) certificate of arraignment and (3) recommendation of DOJ. (these would later turn out to have been falsified with the help of Honrada, clerk of court then acting stenographer of a MCTC in Agusan del Sur). The case was dismissed however on the ground of prescription. In 1990, a taxpayer who filed perjury and graft charges against Paredes, wrote

to the Ombudsman seeking investigation of respondents for allegedly falsifying notice of arraignment and transcripts of stenographic notes which were attached to the MR. As it turned out, perjury case did not reach arraigment pending review in the DOJ, hence, fiscal could not have received notice of arraignment. The Ombudsman approved filing of charges against all Paredes, Sansaet and Honrada. It refused to consider Sansaet as state witness since he could not have been unwittingly induced to commit the crime and claimed further that his testimony would be covered by the attorney-client privilege. Sandiganbayan sided with Ombudsman and denied discharge of Sansaet as sate witness. The SC reversed the decision of the Sandiganbayan H: The Attorney-client relationship cannot apply in this case as the facts and the actuations of both respondents constitute an exception to the rule. Undoubtedly, there was a confidential communication made by Paredes to Sansaet, regardless of the mode. Acts and words of the parties during the period when the documents were being falsified were necessarily confidential since Paredes would not have invited Sansaet to his house and allowed him to witness the same except under conditions of secrecy and confidence. For attorney-client privilege to apply, however, the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. (if past, privilege applies; if future, does not apply) In the present case, testimony sought to be elicited from Sansaet are communications made to him by physical acts and/or accompanying words of Paredes at the time he and Honrada, either with active or passive participation of Sansaet, were about to falsify, or in the process of falsifying, the documents which were later filed by Sansaet in the Tanodbayan. Crime of falsification had not yet been committed, hence, they are not covered by the privilege. It could also not have been covered by the privilege because Sansaet was himself a conspirator in the commission of the crime of falsification. In order that a communication between a lawyer and his client be privileged, it must be for a lawful purpose or in the furtherance of a lawful end. On the contrary, Sansaet, as lawyer, may be bound to disclose the info at once in the interest of justice.  Regala v. Sandiganbayan (1996) F: In 1987, the Republic through the PCGG instituted a complaint before the Sandiganbayan against Eduardo M. Conjuangco, as one of the principal defendants, for the recovery of alleged ill-gotten wealth. Among the defendants named in the case are herein petitioners, who all were then partners of the ACCRA Law Firm. In 1991, the PCGG filed a Motion to exclude private respondent Raul Roco from the complaint as party-defendant. PCGG based its exclusion of Roco on his undertaking that he testify that the partners assisted in the organization and acquisition of the corporations involved in sequestration proceedings and that the partners acted as nominees-stockholders of said corporations. The petitioners 56

SIGMA LEGIS COPY

the proper administrative action, …shall be imposed upon an attorney-at-law or solicitor (procurador judicial) who, by any malicious breach of professional duty or of inexcusable negligence or ignorance, shall prejudice his client, or reveal any of the secrets of the latter learned by him in his professional capacity.

LEGAL PROFESSION & ETHICS

H: In our jurisdiction, this privilege (confidentiality in lawyer-client relationship) takes off from the following authorities (1) Section 383 of the Code of Civil Procedure enacted by Philippine Commission; (2) Sec 24 Rules of Court (3) Sec 138 of the Rules of Court; (4) Canon 17 of the Code of Professional Responsibility; and (5) Canon 15 of the Canons of Professional Ethics The public interests served by the policy that favors confidentiality are the following: 1. In the constitutional sphere, the privilege gives flesh to the right to counsel and the right against self-incrimination. If no such privilege is accorded, an accused might be compelled to either opt to stay away from the judicial system or to lose the right to counsel. 2. Encouraging full disclosure to a lawyer by one seeking legal services opens the door to a whole spectrum of legal options which would otherwise be circumscribed by limited information engendered by fear of disclosure. Necessarily, in order to attain effective representation, the lawyer must invoke the privilege not as a matter of option but as a matter of duty and professional responsibility. The general rule is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of his client. The reasons for this are that: 1. The Court has a right to know that the client whose privileged information is sought to be protected is flesh and blood. 2. The privilege begins to exist only after the attorney-client relationship has been established. The privilege does not attach until there is a client. 3. The privilege pertains to the subject matter of the relationship. 4. Due process considerations require that the opposing party should know his adversary.

(Metaphor: He cannot be obliged to grope in the dark against unknown forces.) The general rule is however qualified by some exceptions. Client identity is privileged 1. Where a strong probability exists that revealing the client’s name would implicate the client in the very activity for which he sought the lawyer’s advice. 2. Where disclosure would open the client to civil liability. 3. Where the government’s lawyers have no case against an attorney’s client unless by revealing the client’s name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime. Information relating to the identity of the client may fall within the ambit of the privilege when the client’s name itself has an independent significance, such that disclosure would then reveal client confidences. The instant case falls under the first and third exceptions. Under the first exception, the disclosure of the client’s name would lead to establish said client’s connection with the very fact in issue of the case, which is privileged information, because the privilege protects the subject matter or the substance (without which there is no attorney-client relationship). Pets have a legitimate fear that identifying their clients would implicate them in the very activity for which legal advice had been sought, i.e. the alleged accumulation of illgotten wealth in the aforementioned corporations. Under the third exception, the revelation of the client’s name would obviously provide the necessary link for the prosecution to build its case, where none otherwise exists. It is the link that would inevitably form the chain of testimony necessary to convict the client of a crime. An important distinction be made between these two cases: First case: A client takes on the services of an attorney for illicit purposes seeking advice about how to go around the law for the purpose of committing illegal activities. Second case: A client thinks he might have previously committed something illegal and consults his attorney about it. The first case does not fall within the privilege. Reason: It is not within the professional character of a lawyer to give advice on the commission of a crime. The second falls within the exception because whether or not the act for which the client sought advice turns out to be illegal, his name cannot be used or disclosed if the disclosure leads to evidence not yet in the hands of the prosecution, which might lead to possible action against him. Reason: The policy serves legitimate public interests. RULE 15.04 MEDIATOR, CONCILIATOR OR ARBITRATOR

57

SIGMA LEGIS COPY

subsequently filed a counter-motion that PCGG similarly exclude them as parties-defendants of the case as accorded Roco. The PCGG set the following conditions precedent for the exclusion of petitioners: (1) disclosure of the identity of its clients; (2) submission of documents substantiating the lawyerclient relationship; (3) submission of the deeds of assignments petitioners executed in favor of its clients covering their respective shareholdings. The Sandiganbayan denied the exclusion of petitioners for their refusal to comply with the conditions required by PCGG. The SC reversed the Sandiganbayan.

LEGAL PROFESSION & ETHICS

NOTES (Agpalo) 

An attorney’s knowledge of the law and his reputation for fidelity may make it easy for the disputants to settle their differences amicably. However, he shall not act as counsel for any of them.

RULE 15.05 CANDID, HONEST ADVICE  Rule 15.05. A lawyer when advising his client shall give a candid and honest opinion on the merits and probable results of the client’s case, neither overstating nor understanding the prospects of the case.

 Rule 15.06. A lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body. NOTES (Agpalo) 

This rule protects against influence peddling.



Some prospective clients secure the services of a particular lawyer or law firm precisely because he can exert a lot of influence on a judge and some lawyers exact big fees for such influence

RULE 15.07 IMPRESS COMPLIANCE WITH LAWS AND THE PRINCIPLE OF FAIRNESS  Rule 15.07. A lawyer shall impress upon his client compliance with the laws and the principles of fairness.  Art. 19 Civil Code. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith.

NOTES (Agpalo) 

A lawyer is bound to give candid and honest opinion on the merit or lack of merit of client’s case, neither overstating nor understating the prospect of the case. He should also give an honest opinion as to the probable results of the case, with the end in view of promoting respect for the law and the legal processes.



As officers of the court, counsel are under obligation to advice their clients against making untenable and inconsistent claims.



A lawyer who guarantees the successful outcome of a litigation is under a heavy pressure to employ any means to win the case at all costs or under a cloud of suspicion of having betrayed a client when the case is lost. In either case, he puts himself in a trying situation.



If a lawyer finds that his client’s contemplated civil suit is totally devoid of merit, or that the pending action against him is wholly defenseless, which is his function and duty to find out, he should so inform his client and dissuade him from filing the case or advise him to compromise or submit rather than traverse the incontrovertible

RULE 15.06 NOT TO CLAIM INFLUENCE

NOTES (Agpalo) 

A lawyer is required to represent his client within the bounds of the law. The CPR enjoins him to employ only fair and honest means to attain the lawful objectives of his client and warns him not to allow his client to dictate procedure in handling the case. He may use arguable construction of the law or rules which are favorable to his client. But he is not allowed to knowingly advance a claim or defense that is unwarranted under existing law.



While a lawyer is not expected to know all the laws he is expected to take such reasonable precaution in the discharge of his duty to his client .

Duty to resist client’s improper request  A lawyer appears in court not only as an advocate of his client but also as an officer of the court trusted and authorized by the state to assist the court in determining what is right between the parties before it. 

A lawyer should comply with the client’s lawful requests. But he should resist and should never follow any unlawful instructions. In matters of law, it is the client who should yield to the lawyer and not the other way around.



The State is vitally interested in seeking that justice is done and goes to great expense and provides the machinery for that part of its governmental function. To permit lawyers to resort to unscrupulous practices for the protection of 58

SIGMA LEGIS COPY

 Rule 15.04. A lawyer may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in settling disputes.

LEGAL PROFESSION & ETHICS





A lawyer must also observe and advice his client to observe the statute law, thought until a statute shall have been construed and interpreted by competent jurisdiction, he is free and is entitled to advice as to its validity and as to what he conscientiously believes to be its just meaning and extent. 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, etc.

RULE 15.08 DUAL PROFESSION  Rule 15.08. A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity. NOTES (Agpalo) 

Exercise of dual profession is not prohibited but a lawyer must make it clear when he is acting as a lawyer and when he is otherwise, especially in occupations related to the practice of law. Reason: certain ethical considerations may be operative in one profession and not in the other.

 Nakpil v. Valdes (1998) F: Atty. Carlos Valdes was the lawyer and accountant of the Nakpils. In 1965, Jose Nakpil wanted to buy a summer residence in Baguio City but because of lack of funds, he agreed that Valdes would keep the property in trust until the Nakpils could buy it back. Valdes took out two loans to purchase the property. In 1973, Jose Nakpil died. The ownership of the Baguio property became an issue in the intestate proceedings as Valdes excluded it from the inventory of Jose’s estate. In 1978, Valdes transferred his title to the property to his company. The estate filed an action for reconveyance and the adminstratix filed an administrative case to disbar Valdes for (1) maliciously appropriating the property in trust to his family corporation (2) including in the claims against the estate the amounts of the two loans which he claimed were Jose’s loans “probably for the purchase

of a house and lot in Moran St., Baguio City and (3) for conflict of interest, since his auditing firm prepared the list of claims of creditors who were also represented by his law firm. The SC suspended Valdes from the practice of law for one year H: A lawyer is not barred from dealing with his client but the business transaction must be characterized with utmost honesty and good faith. Business transactions between an attorney and his client are disfavored and discouraged by policy of law because by virtue of a lawyer’s office, he is an easy position to take advantage of the credulity and ignorance of his client. Thus, there is no presumption of innocence or improbability of wrongdoing in favor of lawyers. Factual findings show that Valdes initially acknowledged and respected the trust nature of the Moran property. He violated the trust agreement when he claimed absolute ownership over the property and refused to sell the property to Imelda after Jose’s death. Even granting that Imelda failed to pay after the 5year period, it did not mean Valdes automatically owned the property since the proper action would be to proceed against the estate of Jose. Valdes’ act of excluding the Moran property from the estate evinces his lack of fidelity to the cause of the client. If he truly believed property belonged to him, he should have at least informed Imelda of his claim. Valdes’ misuse of his legal expertise to deprive his client of the Moran property is clearly unethical. Valdes could not claim oversight in charging the two loans against the estate since it was made in his name. He wanted to “have his cake and eat it too” and subordinated the interest of his client to his own. He violated Canon 17 of CPR (which provides that a lawyer owes fidelity to his clients and enjoins him to be mindful of the trust and confidence reposed on him). Valdes is guilty of representing conflict of interests. The proscription against representation of conflicting interests finds application where the conflicting interests arise with respect to the same general matter and is applicable however slight such adverse interest may be. It applies although the attorney’s intentions and motives were honest and he acted in good faith. Representation of conflicting interests may be allowed where the parties give an informed consent to the representation after full disclosure of facts. The lawyer must explain to his clients the nature and extent of the conflict and the possible adverse effects must be thoroughly understood by his clients. In this case, there is clearly a conflict between the interest of the estate which stands as the debtor, and that of the two claimants who are creditors of the estate. The fact that Valdes did not personally file the case and appear in court is beside the point. Respondent acted as counsel and accountant of the complainant after the death of Jose. His claim of resignation from the law firm is not supported by any documentary proof and even with his resignation from the accounting firm in 1972 and 1974, he returned on July 1, 1976. When Valdes 59

SIGMA LEGIS COPY

the supposed rights of their clients is to defeat the administration of justice, one of the purposes of the state.

LEGAL PROFESSION & ETHICS

That Imelda did not object to Valdes’ law firm acting as legal counsel of the estate and his accounting firm as auditor of both the estate and the claimants cannot be taken against her as there is no showing that Valdes or his law firm explained the legal situation and its consequences to the complainant. Her silence does not amount to acquiescence based on an informed consent. The relationship of claimants to the late Nakpil does not negate the conflict of interest. When a creditor files a claim against an estate, his interest is per se adverse to the estate. Valdes undoubtedly placed his law firm in a position where his loyalty to his client could be doubted. In the estate proceedings, the duty of his law firm was to contest the claims of these two creditors but which claims were prepared by his accounting firm. Even if the claims were valid and did not prejudice the estate, the set-up is still undesirable. The test to determine whethere there is conflict of interest in the representation is the probability, not the certainty of conflict. It was his duty to inhibit either of his firms to avoid probability of conflict. Valdes’ claim that he could not be charged as his “misconduct” pertains to his accounting practice is of no merit. Complainant is not charging respondent with breach of ethics for being the common accountant of the estate of the two creditors but for allowing his accounting firm to represent 2 creditors of the estate and, at the same time, allowing his law firm to represent the estate in the proceedings where these claims were presented. It is a breach of professional ethics and undesirable because it placed respondent’s and his law firm’s loyalty under a cloud of doubt. Even if misconduct pertains to his accounting practice, he may still be disciplined by the Court because a lawyer may be suspended or disbarred for ANY misconduct, even if it pertains to his private activities, as long as it shows in him to be wanting in moral character, honesty, probity or good demeanor. Possession of good moral character is not only a prerequisite to the admission to the bar but also a continuing requirement to the practice of law. Public confidence in law and lawyers may be eroded by the irrresponsible and improper conduct of a member of the bar. Members of the Bar are expected to always live up to the standards embodied in the CPR as the relationship bet. the attorney and his

client is highly fiduciary in nature and demands utmost fidelity and good faith. CANON 16 HOLD IN TRUST CLIENT’S MONEY AND PROPERTIES  Canon 16. A Lawyer shall hold in trust all money’s and properties of his client that may come into his possession. Rule 16.01. A lawyer shall account for all money or property collected or received for or from the client. Rule 16.02. A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him. Rule 16.03. A lawyer shall deliver the funds and property to his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court. Rule 16.04. A lawyer shall not borrow money from his client unless the client’s interests are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except when, in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client.  Art. 1491(5) Civil Code. The following persons cannot acquire by purchase, even at a public auction, wither in person or through the mediation of another: (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 tights which may be the object of any litigation in which they may take part by virtue of their profession. NOTES (Agpalo) Effects of fiduciary relations, generally  Position of attorney enables him to put in his power, and opens him to the temptation to avail himself, not only of the necessity of his client but of his good nature, liberality and credulity to obtain undue advantages, bargains and gratuities. 60

SIGMA LEGIS COPY

transferred the Moran property to his corp. on Feb. 13, 1978, the intestate proceedings was still pending in court.

LEGAL PROFESSION & ETHICS 

Fiduciary and strictly confidential relations requiring utmost good faith, loyalty, fidelity and disinterestedness on the part of an attorney is designed to removed all such temptation.





Principles of expediency and justice demand that a lawyer should not take advantage of his position to the prejudice of his client; on the contrary, it is the client who should benefit.



A fiduciary relationship exists as a matter of law between attorney and client, which requires all dealings growing out of such relationship to be subject to the closest judicial scrutiny.

Application of Rule  When all the following four elements are present there is a violation of law and ethically improper conduct: 1. there must be attorney-client relationship 2. the property or interest of the client must be in litigation 3. the attorney takes part as counsel in the case 4. the attorney himself or through another purchases such property or interest during the pendency of the litigation





Business transactions between lawyers and clients must be characterized by utmost honesty and good faith of a much higher standard than that in ordinary business dealings. Although a lawyer is not barred, as a rule, from dealing with his client, this kind of business transactions are disfavored and discouraged by policy of law— because a lawyer is in a position to take advantage of the credulity and ignorance of his client. Thus, no presumption of innocence or improbability of wrongdoing is considered in his favor. Even when transaction between lawyer and client is not prohibited by law, burden of proof rests upon attorney to show fairness of the transaction.

Purchase of client’s property in litigation  Law and canons of the legal profession prohibit a lawyer from purchasing, even at a public or judicial auction, either in person or through the mediation of another, any property or interest involved in any litigation in which he may take part by virtue of his profession. 

Purpose: to curtail any undue influence of the lawyer upon his client on account of his fiduciary and confidential relation with him.



immaterial that deed of sale is executed at the instance of the client or at the behest of the lawyer because the latter occupies a vantage position to dictate his terms



prohibition covers any scheme which has the effect of circumventing the law (ex: deed of sale as attorney’s fees, purchase by firm or wife, etc...)



where the value of the property in litigation transferred by a client in favor of his attorney in payment of the latter’s fees is worth much more than the his services, the transfer contravenes the law.

When rule inapplicable  The absence of one element renders prohibition inapplicable (e.g. an attorney may bid on behalf of his client at the auction sale of the client’s property in litigation since it is not for his own benefit) 

contingent fee contract: allowed since it neither gives nor purports to give to the attorney an absolute right, personal or real, in the subject matter during the pendency of the litigation; the measure of compensation provided is a mere basis for the computation of fees and the payment made from the proceeds of the litigation is effected only after its successful termination. A distinction must be made between purchasing an interest in the litigation to enable a lawyer to litigate on his own account or to abuse the client’s confidence (prohibited) and accepting compensation contingent upon the result of the litigation (allowed). Note, however, that a contingent fee contract which is unreasonable ceases to be a measure of due compensation for services rendered.

Effects of Prohibited Purchase  A prohibited purchase is null and void ab initio; public interest and public policy dictate that its nullity is definite and permanent and cannot be cured by ratification. The 61

SIGMA LEGIS COPY

Dealings with client closely scrutinized  Court will protect client from any undue disadvantage resulting from any situation in which he and his attorney may stand unequal. In fact, law requires that courts be vigilant in protecting clients “in all contractual, property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicaps.”

Prohibition is absolute and permanent, and rests on considerations of public policy and interest. No need to show fraud and no excuse will be heard. Law does not trust human nature to resist temptation likely to arise.

LEGAL PROFESSION & ETHICS



The client is therefore entitled to recover property and interest from his attorney with the fruits. The client should, however, return the purchase price and the legal interests.

Purchase of choses in action  Spirit of the rule against the acquisition of a client’s property in litigation and the injunction against stirring up of strife should be applied in determining whether the purchase of a chose in action by an attorney is improper. 



Purpose: prevent lawyer from the temptation to litigate in his own account as a business proposition. It is improper for lawyer to accumulate distinct causes of action in himself by assignment from hundreds of small claimants and sue in his name for the benefit of the clients directly interested because (1) while there is no litigation yet, litigation is its purpose, and (2) attorney places himself in the category of a voluntary litigant for a profit.



It is improper for lawyer in his professional capacity to buy judgment notes or other choses in action for much less than their face value with intent to collect them at a large profit for himself.



It is improper for a lawyer to enter into an arrangement with one who purchases future interests in estates where he becomes part owner and shares in the profit in consideration of his work in securing the interest.



An attorney may, however, properly acquire choses in action not in his professional capacity but as a legitimate investment. The fact that a person happens to be a lawyer does not deprive him of the privilege to engage in business activities as enjoyed by any other person, but his being a lawyer in the practice of law enjoins him from doing any such act as may bring dishonor to the profession or violate any of its ethical rules concerning advertising or solicitation of business.

RULE 16.01 ACCOUNT FOR ALL MONEY AND PROPERTY  Rule 16.01. A lawyer shall account for all money or property collected or received for or from the client.

NOTES (Agpalo) 

A lawyer holds money or property, which he received from or for his client, in trust and should promptly make an accounting thereof.



If money or property entrusted was not used for its purpose, it should be returned immediately to the client. Failure to return would raise presumption that he misappropriated the money/property.



Money received by a lawyer from a person who is not his client is also held by him in trust and he is under obligation to account for it.



The question is not whether the rights of the clients have been prejudiced but whether the lawyer has adhered to the ethical standards of the bar.



The circumstance that a lawyer has a lien for his attorney’s fees over the client’s money in his possession does not relieve him from the obligation to make a prompt accounting and his failure to do so constitutes professional misconduct

 Berbano v. Barcelona (2003) F: The Berbano family gave Atty. Barcelona up to P64,000 in cash and checks to secure the release of Daen, their attorneyin-fact. Atty. Barcelona made it appear that he had connections with SC justices. The SC ordered his disbarment. H: Respondent is guilty of culpable violations of Canons 1, 7, 11, 16 and Rule 16.01. The Code exacts from lawyers not only a firm respect for law, legal processes and the courts but also mandates the utmost degree of fidelity and good faith in dealing with their clients and the moneys entrusted to them pursuant to their fiduciary relationship. OBITER: The object of disbarment is not so much to punish the individual attorney himself, as to safeguard the administration of justice by protecting the court and the public from the misconduct of officers of the court, and to remove from the profession of law persons whose disregard for their oath of office have proved them unfit to continue discharging the trust reposed in them as members of the bar. In re Almacen: “Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely criminal, they do not involve a trial of an action or a suit, but are rather investigations by the Court into the conduct of one of its officers...there is neither a plaintiff nor a prosecutor therein. [They] may be initiated by the Court motu propio. Public interest is [their] primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges 62

SIGMA LEGIS COPY

lawyer will be deemed to hold the property in trust for the client.

LEGAL PROFESSION & ETHICS

In determining the penalty imposed, SC considered the penalties in different circumstances in previous cases and concluded that Atty. Barcelona deserves to be disbarred for collecting P64,000 for the immediate release of the detainee through his alleged connection with a Justice of the SC. It appears that Atty. Barcelona had previously been charged and found guilty of conduct unbecoming a lawyer in Gil T. Aquino v. Atty. Wenceslao C. Barcelona. He misrepresented himself to complainant when he offered to secure restructuring complainant’s loan in PNB, claiming he knew someone there. He was suspended for 6 months and ordered to return whatever remained of complainant’s P60,000. Respondent has demonstrated a penchant for misrepresenting to clients that he has the proper connection to secure relief they seek, and thereafter, ask for money which will allegedly be given to such connections. The same is true in this case. Not only that, he had the audacity to tell complainant that the Justices of the Supreme Court do not accept checks. In so doing, he placed the Court in dishonor and public contempt. As an officer of the Court, it is his sworn and moral duty to help build and not destroy unnecessarily that high esteem and regard towards the courts so essential to the proper administration of justice. Judiciary has been besieged enough with accusations of corruption and malpractice. For a member of the legal profession to further stoke the embers of mistrust on the judicial system with such irresponsible representations is reprehensible and cannot be tolerated. Respondent made a mockery of the Judiciary and further eroded public confidence in courts and lawyers when he ignored the proceedings in the Aquino and in the present case. Moreso when he misrepresented to client that he has connections with a Member of the Court to accommodate his client and that Justices of the Court accept money. Indubitably, he does not deserve to remain a member of the Bar any minute longer. The Supreme Court, as guardian of the legal profession, has ultimate disciplinary power over attorneys.  Daroy v. Legaspi (1975) F: The SC disbarred Atty. Legaspi who, without his client’s knowledge, received from the deputy provincial sheriff P4,000 as their share in the intestate proceeding of their maternal grandparents. He

misled his clients by informing them that they could withdraw the money but later admitted that he had withdrawn the money and spent it. The SC disbarred Atty. Legaspi. H: A lawyer, under his oath, pledges himself not to delay any man for money or malice and is bound to conduct himself with all good fidelity to his clients. He is obligated to report promptly the money of his clients that has come into his possession (otherwise a violation of Sec. 25, Rule 138 of ROC). He should not commingle it without his client’s consent. He should maintain a reputation for honesty and fidelity to private trust. The fact that a lawyer has a lien for fees on money in his hands would not relieve him from the duty of promptly accounting for the funds received. A member of the bar who converts the money of his client to his own benefit through false pretenses is guilty of deceit, malpractice and gross misconduct in his office of lawyer (plus manufactured defenses, lack of candor and failure to appear in the investigation causing case to drag for 5 years). The attorney, who violates his oath, betrays the confidence reposed in him by a client and practices deceit cannot be permitted to continue as a law practitioner. Not alone has he degraded himself but as an unfaithful lawyer he has besmirched the fair name of an honorable profession. RULE 16.02 KEEP CLIENT’S FUND SEPARATE  Rule 16.02. A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him. NOTES (Agpalo) 

A lawyer should keeps funds of each client separate and apart from his own. He should not use client’s money for personal purposes without client’s consent. He should report promptly the money of his client in his possession.

 Hernandez v. Go (2005) F: In 1961, Nazaria Hernandez’s husband left her and her son Luciano. Creditors of her husband went after her so she hired legal services of Atty. Jose Go, who advised her to give him titles to 3 lots in Zamboanga City and execute deeds of sale in his favor without any monetary or valuable consideration supposedly so that Atty. Go can sell the lots and pay Nazaria’s debts. When mortgages over three other lots fell due, Atty. Go redeemed the lots and convinced Nazaria to execute deeds of sale in his favor. In 1974, Nazaria found out Atty. Go did not sell the lots but that he become the owner, depriving her of real properties worth millions. In 1975, Nazaria filed disbarment letter-complaint. The SC disbarred Go. H: Atty. Go’s acts in acquiring the lots entrusted to him are acts constituting gross misconduct, a grievous wrong, a 63

SIGMA LEGIS COPY

as such...” In disbarment proceedings, burden of proof rests on complainant, and for the Court to exercise its disciplinary powers, the case against the respondent must be established by clear, convincing and satisfactory proof (clear preponderant evidence).

LEGAL PROFESSION & ETHICS

OBITER: Respondent’s deceitful, dishonest, unlawful and grossly immoral acts have made him unfit to remain in the legal profession. Lawyers are to uphold the integrity and dignity of the legal profession and are to refrain from any act or omission which might lessen the trust and confidence reposed by the public in the fidelity, honesty, and integrity of the legal profession. Respondent blemished not only his reputation as member of the Bar but also the legal profession. Membership in the bar is a privilege. It is the duty of the Court, which made a lawyer one of its officers and gave him the privilege of ministering within its Bar, to withdraw the privilege if it appears that he is no longer worthy of trust and confidence of his clients and the public. Public interest requires that an attorney should exert his best efforts and ability to protect the interests of his clients. A lawyer who performs that duty with diligence and candor not only protects his client’s cause; he also serves the ends of justice and does honor to the bar and helps maintain the respect of the community to the legal profession.

 Rule 16.03. A lawyer shall deliver the funds and property to his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court.  Rule 138, sec. 37. Attorney’s liens.—An attorney shall have a lien upon the funds, documents and papers of his client which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof. He shall also have a lien to the same extent upon all judgements for the payment of money, and executions issued in pursuance of such judgements, which he has secured in a litigation of his client, from and after the time when he shall have caused a statement of his claim of such lien to be entered upon the record of the court rendering such judgement, or issuing such execution, and shall have caused written notice thereof to be delivered to his client and power over such judgements and executions as his client would have to enforce his lien and secure the payment of his just fees and disbursements. NOTES (Agpalo) 

Failure of an attorney to return client’s money upon demand gives rise to presumption that he has misappropriated it for his own use.



If client agrees with lawyer as to the amount of attorney’s fees and as to the application of the client’s fund to pay his lawful fees and disbursement, a lawyer may deduct what is due him and remit the balance to his client. If no such agreement or consent or if there is dispute or disagreement as to the fees, he should return everything to client without prejudice to his filing a case to recover his unsatisfied fees.



This rule grants the lawyer a lien over the client’s funds in his possession as well as on all judgments and executions he has secured for his client, to satisfy his lawful fees and disbursements.

Good moral character is not only a condition precedent to the admission to the practice of law; its continued possession is also essential for remaining in the legal profession. Sec. 27(3) , Rule 138 of the Revised Rules of Court mandates that a lawyer may be disbarred or suspended by SC for gross misconduct in office. Penalty recommended by IBP too light considering the depravity of respondent’s offense. A lawyer who takes advantage of his client’s financial plight to acquire the latter’s properties for his own benefit is destructive of the confidence of the public in the fidelity, honesty, and integrity of the legal profession. RULE 16.03 DELIVERY OF FUNDS; LAWYER’S LIEN

 Busiños v. Ricafort (1997) F: Atty. Ricafort, as counsel of Busiños in a case Busiños won, received from the Clerk of Court of RTC Ligao, Albay, P25K and from OAS Standard High School P5K. Busiños waited for the amounts to deposited in her account. Atty. Ricafort later informed her that he had spent the money but he promised to pay her. Only after an estafa case was filed did Atty. Ricafort 64

SIGMA LEGIS COPY

forbidden act, a dereliction in duty, willful in character and implies a wrongful intent and not mere error in judgment, thereby violating Canon 16. Such conduct degrades not only himself but also the name and honor of the legal profession. He also violated Canon 17 when he abused the trust and confidence of Nazaria when he did not sell the lots as agreed but sold it to himself. He should have given a detailed report. Complainant could have earned more if lots were sold to other buyers. Records show she did not receive any amount from respondent.

LEGAL PROFESSION & ETHICS

H: Atty. Ricafort breached Sec. 25 of Rule 138 of Rules of Court, Rule 1.01 of Canon 1 and Rules 16.01, 16.02 and 16.03 of Canon 16 of the CPR. There is no doubt he is guilty of having used the money of his clients without their consent. His use of their money is made more manifest by his letters to complainant, all promising the latter to make good his promise to pay the money he withdrew from the Clerk of Court and OAS. Money collected by a lawyer in pursuance of a judgment in favor of his clients is held in trust and must be immediately turned over to them. OBITER: Respondent’s transgressions manifested dishonesty and amounted to grave misconduct and grossly unethical behavior which caused dishonor, not merely to respondent, but to the noble profession to which he belongs. A lawyer shall at all times uphold the integrity and dignity of the legal profession. The trust and confidence necessarily reposed by clients require in the attorney a high standard and appreciation of his duty to his clients, his profession, the courts and the public. The bar should maintain a high standard of legal proficiency as well as of honesty and fair dealing. Generally speaking, a lawyer can do honor to the legal profession by faithfully performing his duties to society, to the bar, to the courts and to his clients. To this end, nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the confidence of the public in the fidelity, honesty and integrity of the profession. Respondent chose to forget that by swearing the lawyer’s oath, he became a guardian of truth and the rule of law, and an insdispensable instrument in the fair and impartial administration of justice—a vital function of democracy. Any departure from the path which a lawyer must follow as demanded by virtues of his profession shall not be tolerated especially where respondent deliberately defied lawful orders of the Court, transgressing Canon 11 which requires a lawyer to observe and maintain respect due to the courts.  Quilban v. Robinol (1989) F: Pursuant to a court order in their favor, thirty-two squatter families turned over a total of P75K to their counsel Atty. Robinol to purchase the land which they were occupying. Atty. Robinol had entered into an agreement with the families that he would receive a portion of the land equivalent to that of one of the families. On the pretense that he wanted his portion converted to cash, he witheld

payment of the P75K to the owner of the property. The families changed counsel to Atty. Montemayor and filed an administrative case against Atty. Robinol to investigate his refusal to return money. The SC disbarred Atty. Robinol and found that Atty. Montemayor did not encroach upon the the former’s attorney-client relationship with the families. H: [re: Atty. Robinol] Atty. Robinol has no right to unilaterally appropriate his client’s money not only because he is bound by written agreement (the written agreement says that portions of the land would be given to him not its monetary equivalent) but also because it was highly unjust for him to do so. Clients were mere squatters who could barely raised their respective quota of 2,500 per family with which to pay for the land only to be deprived of the same by one who, after having seen the color of money, heartlessly took advantage of them. His claim that since he was unjustly dismissed by his clients he had the legal right to retain the money in his possession has no basis because of the following reasons: (1) There was a justifiable ground for his discharge. His clients had lost confidence in him for he had engaged in dilatory tactics to the detriment of their interests, which he was dutybound to protect. (2) Even if there were no valid ground, he is bereft of any legal right to retain his client’s funds intended for a specific purpose-the purchase of land. The principle of quantum meruit applies if a lawyer is employed without a price agreed upon for his services in which case he would be entitled to receive what he merits for his services, as much as he has earned. In this case, however, the principle is inapplicable because there was an express contact and a stipulated mode of compensation. H: [re: Atty. Robinol] Atty. Montemayor had in no way encroached upon the professional employment of a colleague. Of the 32 plaintiffs, 21 expressed their resolve to change their lawyers. It is sufficient to make the consensus binding. Atty. Robinol is estopped from questioning his discharge. In his memorandum and in the proceedings, he stated that he had no objection to Atty. Montemayor’s appearance as a counsel. He was informed in writing by plaintiffs of the termination of his services followed by another letter of the same tenor. Clients are free to change their counsel in a pending case at any time and thereafter employ another lawyer who may then enter his appearance. The plaintiff’s act was within their prerogative in deciding to change their lawyer for loss of trust and confidence. RULE 16.04 NO BORROWING OR LENDING  Rule 16.04. A lawyer shall not borrow money from his client unless the client’s interests are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except when, in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client. 65

SIGMA LEGIS COPY

pay P60K as settlement. Busiños dropped estafa case but not the disbarment case. The SC

LEGAL PROFESSION & ETHICS



Stated positively, the first part of the above rule allows the lawyer to borrow form his client if the client’s interests are fully protected by the nature of the case or by independent advise, while the second part allows a lawyer to lend money to his client only when he has to advance necessary expenses in a legal matter he is handling for the client as this will serve the interest of justice.



Chapertous Contract—where the lawyer assumes all expenses of litigation and reimbursement is contingent on outcome of case is PROHIBITED! Chapertous contracts are like wagers—the lawyer gets paid and reimbursed if he wins the case and loses even what he had spent on the case if he loses.



Champerty—a bargain by a stranger (the lawyer) with a party to a suit (the client) by which such third person undertakes to carry on the litigation at his own expense and risk, in consideration of receiving, if successful, a part of the proceeds or subject sought to be recovered.





v Maintenance—consists in maintaining, supporting or promoting the litigation of another; Chaperty is a bargain to divide the proceeds of litigation between the owner of the liquidated claim (the client) and a party supporting or enforcing the litigation (the lawyer) v Contingent Fee Contract—in this, the lawyer gets reimbursed for any advances made for the client in the course of the representation, whether he wins the suit or not; only the amount of attorney’s fees is contingent upon winning.

(Agpalo) 



That a lawyer should not borrow from his client is intended to prevent the lawyer form taking advantage of his influence over the client. While the lawyer may borrow where the client’s interests are fully protected by the nature of the case he is handling for the client, or by independent advice from another lawyer, he should not abuse the client’s confidence by delaying payment. That a lawyer may not lend money to client, except when, in the interest of justice, he has to advance necessary expenses in a legal matter he

is handling, is intended to assure the lawyer’s independent professional judgment, for if a lawyer acquires a financial interest in the outcome of the case, the free exercise of his judgment may be adversely affected. He might be after his own recovery more than that of his client, violating his duty of undivided fidelity to client and making lawyering a money-making venture and not a profession.  Barnachea v. Quicho (2003) F: Atty. Quiocho had not been in the practice of law for some time but decided to revive his legal practice with some associates. The complainant engaged the legal services of repsondent to cause the transfer under her name of title over property previously owned by her sister. Complainant issued the total amount of P41,280 for the expenses for the transfer and payment for respondent’s legal services. Atty. Quiocho encashed the checks. After two months, respondent was unable to secure title over the property in favor of complainant. She then demanded the refund of the amount and the documents she handed. Respondent failed to comply. Complainant Baranachea filed a complaint for breach of lawyerclient relations. The SC suspended Atty. Quiocho from the practice of law for one year. H: A lawyer is obliged to hold in trust money or property of his client that may come into his possession. He is to keep the funds of his client separate and apart from his own and those of others kept by him. If money entrusted to a lawyer for a specific purpose is not used, it must be returned immediately. Failure to return raises the presumption that he misappropriated it. The relation of attorney and client is highly fiduciary in nature and is of a very delicate, exacting and confidential character. A lawyer is duty-bound to observe candor, fairness and loyalty in all his dealings and transactions with his clients. The profession, therefore, demands of an attorney an absolute abdication of every personal advantage conflicting in any way, directly or indirectly, with the interest of his client.  Rubias v. Batiller (1973) F: Atty. Rubias, a lawyer, filed a suit to recover the ownership and possession of a parcel of lot which he bought from his father-in-law, against its present occupant Batiller. Batiller argued that the contract of sale between Atty. Rubias and his father-in-law was void because it was made when plaintiff was counsel of his father-in-law in a land registration case involving the property in dispute (pursuant to art. 1409 & 1491 of the Civil Code). SC held that the sale was void. H: “Assuming arguendo that his client could sell the same, the sale would still be void and could produce no legal effect because Article 1491 of our Civil Code prohibits lawyers, amongst others, by reason of the relation or trust or their peculiar control over the property, from acquiring such property in their trust or control either directly or indirectly and 66

SIGMA LEGIS COPY

NOTES (Aguirre)

LEGAL PROFESSION & ETHICS

CANON 17 TRUST AND CONFIDENCE  Canon 17. A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him. [no implementing rules] NOTES (Agpalo) 



No lawyer is obliged to act either as adviser or advocate for every person who may wish to become his client. He has the right to decline employment (subject to Canon 14 of the CPR). Once he agrees to take up the client’s cause, however, the lawyer owes fidelity to such cause and he must always be mindful of the trust and confidence reposed in him; entire devotion to the interest of the client; warm zeal and maintenance and defense of his client’s right; the exertion of his utmost learning and ability to the end that nothing be taken or withheld from his client, save by the rules of law, legally applied.



The client is entitled to the benefit of any and every remedy and defense that is authorized by law and he may expect his lawyer to assert every remedy or defense authorized by law in support of his client’s cause, regardless of his lawyer’s personal views.



Fear, judicial disfavor, or public unpopularity should not restrain a lawyer from the full discharge of his duty.



The finest hours of the legal profession were those where a lawyer stood by his client even in the face and risk of danger to this person or fortune. And his client can take comfort in the

thought that his lawyer will not abandon him when his services are needed most.  In re: Suspension from the Practice of Law (2004) F: Atty. Maquera was suspended from the practice of law in Guam where he had also been admitted as attorney. This suspension was due to findings of misconduct, as he acquired his client’s property as payment for his legal services and as a consequence obtained an unreasonable high attorney’s fee. IBP suspended Maquera but not for the same reason as that held in his Guam case. Rather, IBP rendered to suspend him due to his failure to pay member’s dues. The SC held that Maquera’s acts in Guam violate standards of ethical behavior for lawyers and thus constitute grounds for his suspension in the Philippines. However, because he had not been given an opportunity to be heard on the matter in the Philippines he could not be penalized therefore. The Court, asked that he show cause why he should not be penalized and suspended him, instead, for one year for his non-payment of IBP dues. H: The Superior Court of Guam found that Maquera’s acquisition of his client’s right of redemption as payment for legal fees, his subsequent exercise of said right, and his act of selling the redeemed property for huge profits were tainted with deceit and bad faith when it concluded that Maquera charged client an exorbitant fee for his legal services. Maquera’s acts are valid grounds for his suspension from the practice of law in the Philippines. Such acts are violative of a lawyer’s sworn duty to act with fidelity toward his clients. However, Maquera’s suspension in Guam does not automatically result in his suspension or disbarment in the Philippines. This only constitutes prima facie evidence of Maquera’s unethical acts as a lawyer. Due process demands that he be given the opportunity to defend himself and to present testimonial and documentary evidence on the matter.  Ngayan v. Tugade (1991) F: Complainants procured the services of Atty. Tugado in a case concerning the unauthorized entry of Soriano and Leonido into their dwelling. Atty. Tugade drafted an affidavit which omitted the fact that Leonido was one of the persons who barged into their dwelling. Mrs. Ngayan signed the affidavit without reading it because Atty. Tugade rushed. Atty. Tugade was later discharged by complainants after they noticed the omission. After the discharge, complainants found out that the name of Leonido was not even included in the charge. The omission was remedied by their new counsel and a case was subsequently filed in court. Later, Soriano and Leonido filed a motion for reinvestigation and attached thereto the first affidavit of Mrs. Ngayan. The motion was filed by Atty. Gaminda, a former classmate of Atty. Tugade. Complainants also discovered that Atty. Tugade was the lawyer of the Leonido’s brother. When the motion for reinvestigation was set for hearing before the city fiscal, Atty. Tugade himself executed and submitted an affidavit in favor of the adverse parties. He also sent a personal letter to the fiscal denouncing 67

SIGMA LEGIS COPY

even at a public or judicial function. The nullity of such prohibited contracts with regard to judicial officers and lawyers is definite and permanent and cannot be cured by ratification. In this regard, the permanent disqualification grounded on public policy differs from the first three cases under art. 1491 (guardians, agents, and administrators), whose transactions it has been opined may be “ratified” by means and in the form of a “new contract,” in which case its validity may be determined only by the circumstances at the time of the execution of a new contract.

LEGAL PROFESSION & ETHICS

H: Respondent’s act of furnishing the adverse parties with a copy of their discarded affidavit, thus enabling them to use it as evidence against the complainants constitutes betrayal of trust and confidence of his former clients in violation of par. (e), Section 20, Rule 138, Rules of Court. We tend to believe complainants’ claim that Atty. Tugade was partial to the adverse parties as he even tried to dissuade complainants from filing charges against Leonido, which could be explained by the fact that respondent is the former classmate of the adverse party’s counsel and that respondent is the lawyer of the brother of Leonido in an insurance company. Respondent’s act of executing an affidavit as exhibit for the adverse parties advancing facts which are prejudicial to the case of his former clients such as the fact that the crime charged in complainant’s affidavit had prescribed and that he was asked to prepare an affidavit to make the offense more grave so as to prevent the offense from prescribing demonstrates clearly an act of offensive personality against complainants in violation of paragraph (f) of Section 20, Rule 138, Rules of Court. Likewise, respondent’s act of joining the adverse parties in celebrating their victory over the dismissal of the case against them constitutes a degrading act on the part of the lawyer. Additionally, respondent’s failure to answer the complaint and his failure to appear for investigation re evidence of his flouting resistance to lawful orders of the court and illustrate his despiciency for his oath of office.  Vda de Alisbo v. Jalandoon Sr. (1991) F: In an action to recover share in estate of a deceased relative, Alisbo availed of Atty. Jalandoon’s services. Jalandoon had acted as counsel for the Sps. Sales who had secured a judgment in their favor against Alisbo. Jalandoon filed a first complaint on behalf of Alisbo which was found to be defective as the lone petitioner, Alisbo was insane and without legal capacity to sue. Jalandoon’s amended complaint which was filed in the name of Alisbo and other petitioners was dismissed for having been filed beyond the reglementary period for revival of judgment. H: As a dutiful lawyer, he should have declined the employment offered by Alisbo on the ground of conflict of interest. Had he done that soon enough, then Alisbo’s would have had enough time to hire another lawyer and they would not have lost their case through prescription of the action. He thus

violated Paragraph 1 and 2, No. 6 of the Canons of Professional Ethics which provides that “It is a duty of a lawyer at the time of the retainer to disclose to the client a) all the circumstances of his relations to the parties, b) and any interest in or connection with the controversy, which might influence the client in the selection of the counsel. It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.” Atty. Jalandoon used his position as Alisbo’s counsel precisely to favor his other client Carlito Sales, by delaying Alisbo’s action to revive the judgment n his favor and thereby deprive him of the fruits of his judgment which Atty. Jalandoon, as Sales’ counsel, had vigorously opposed. Thus, although he prepared the complaint for revival of judgment, he delayed its filing until Sept 12, 1970. He postponed filing the action by asking the Court to instead resolve pending incidents in said civil case. The original complaint which he filed in the names of Ramon Alisbo and his brothers was only partially defective because of Ramon’s incompetence. By dropping the other plaintiffs, he made it wholly defective and ineffectual to stop the running of the prescriptive period. After filing the complaint, he sat on the case. While he allegedly found out about Alisbo’s insanity on July 17, 1971 only, he amended the complaint to implead Alisbo’s legal guardian as plaintiff on Dec 8, 1971 only, or almost five months later. By that time, the prescriptive period had run out. Atty. Jalandoon betrayed his client Ramon Alisbo’s trust and did not champion his cause with that whole-hearted fidelity, care, and devotion that a lawyer is obligated to give to every case that he accepts from a client. There is more than simple negligence. There is a hint of duplicity and lack of candor in his dealings with his client, which call for the exercise of the Court’s disciplinary power.  Ppl v. Ingco (1971) F: Respondent Alfredo Barrios, counsel of Gaudencio Ingco, filed fifteen days late a motion for the extension of the time for submitting the brief for appellant Ingco, who had been sentenced to death for the crime of rape with homicide. He explained that he was busy with another case pending in the CA and that he was misled into assuming that he had taken the necessary steps to file a motion for extension of time for the submission of his brief by receipt of the resolution from the CA granting him such extension. H: Considering that the accused was fighting for his life, the least that could be expected of a counsel de oficio is awareness of the period within which he was required to file appellant’s brief. The mere fact that according to him his practice was extensive requiring his appearance in courts in Mla and other provinces should not have lessened that degree of care necessary for the fulfillment of his responsibility. What is 68

SIGMA LEGIS COPY

complainants and stating that he is filing criminal and civil cases against them. The SC suspended Atty. Tugade from the practice of law for one year.

LEGAL PROFESSION & ETHICS worse is that by sheer inattention, he would confuse the proceedings in a matter pending in the CA with this present case. Such grave neglect of duty is deserving of sever condemnation. It is clearly unworthy of membership in the Bar which requires dedication and zeal in the defense of his client’s rights, a duty even more exacting when one is counsel de oficio. On such an occasion, the honor and respect to which the legal profession is entitled demand the strictest accountability of one called upon to defend an impoverished litigant. He who fails in his obligation then has manifested a diminished capacity to be enrolled in its ranks. SEVERLY REPRIMANDED

his client; he also serves the ends of justice, does honor to the bar and helps maintain the respect of the community to the legal profession. This is so because the entrusted privilege to practice law carries with it the correlative duties not only to the client but also to the court, to the bar and to the public. That circumstance explains the public concern for the maintenance of an untarnished standard of conduct by every attorney towards his client.” [the case cites Agpalo and, in his textbook, Agpalo points out the fact that the case cited him]

 Cantiller v. Potenciano (1968) F: Petitioners availed of Atty. Potenciano’s services for their petition to annul a judgment which orders them to vacate their apartment. Atty. Potenciano assured them that he could secure for them a restraining order as the judge was his katsukaran (close friend). Contrary to this, the judge asked respondent to withdraw his appearance as counsel because of their friendship. Respondent solicited various sums from the petitioners which, allegedly, were to be used in the litigation. But four days prior to the hearing, Potenciano withdrew his appearance as counsel. Unable to avail of another lawyer’s services and to secure a restraining order, the petitioners were forced to vacate the property. The SC indefinitely suspended Potenciano from the practice of law.

 Canon 18. A lawyer shall serve his client with competence and diligence.

Ratio why much is demanded of a lawyer: “Public interest requires that an attorney exert his best efforts and ability in the prosecution or defense of his client’s cause. A lawyer who performs that duty with diligence and candor not only protects the interest of

Rule 18.01. A lawyer shall not undertake a legal service which he knows or should know that he is not qualified to render. However he may render such service if, with the consent of his client, he can obtain as collaborating counsel a lawyer who is competent on the matter. Rule 18.02. A lawyer shall not handle any legal matter without adequate preparation. Rule 18.03. A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. Rule 18.04. A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable period of time to the client’s request for information. NOTES (Agpalo) Duty to serve with competence and diligence  Lawyer impliedly represents that: he possesses requisite degree of learning, skill, ability which is necessary to the practice of his profession and which other similarly situated possess; he will exert his best judgment in the prosecution or defense of the litigation entrusted to him; he will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to his client’s cause; he will take such steps as will adequately safeguards his client’s interest. A client may reasonably expect that counsel will make good his representations. Duty to safeguard client’s interest  This commences from his retainer until his effective release from the case or the final disposition of the whole subject matter of the litigation. 

Even if the lawyer is counsel de oficio this does not diminish or alter the degree of professional responsibility. 69

SIGMA LEGIS COPY

H: The failure to exercise due diligence or the abandonment of a client's cause makes such lawyer unworthy of the trust which the client had reposed on him. Assuming that respondent had no previous knowledge that he would be asked to withdraw, the record is quite clear that 4 days prior to the hearing of the preliminary injunction, respondent already filed a motion therein withdrawing as complainant's counsel interposing as reason therefore his frequent attacks of pain due to hemorrhoids. Despite this void, respondent failed to find a replacement. He did not even ask complainant to hire another lawyer in his stead. His actuation is definitely inconsistent with his duty to protect with utmost dedication the interest of his client and of the fidelity, trust and confidence which he owes his client. More so in this case, whereby reason of his gross negligence complainant thereby suffered by losing all her cases.

CANON 18 COMPETENCE AND DILIGENCE

LEGAL PROFESSION & ETHICS Failure of the client to pay does not warrant abandonment.



Ethical delinquency or impropriety arises invariably either from a lack of appreciation or a lawyer’s duty to his client or from a blind and overzealous performance.



inadequate preparation spawns adverse effects that go far beyond the personal interest of the client. Inadequate preparation for instance may mislead the court to look at the case in an uneven light. Careless preparation may cast doubt upon lawyer’s intellectual honesty and capacity.



Thorough study and preparation will not ensure winning the litigation, however lawyer shall have deep satisfaction of having lost a case but won the esteem and respect of his client and the approbation of the court in the manner he espoused his client’s cause with skill, diligence, ability and candor.

RULE 18.01 CLIENT CONSENT WITH COLLABORATING COUNSEL  Rule 18.01. A lawyer shall not undertake a legal service which he knows or should know that he is not qualified to render. However he may render such service if, with the consent of his client, he can obtain as collaborating counsel a lawyer who is competent on the matter. NOTES (Aguirre) 

Preparation of Pleadings 



However well meaning he may be, a lawyer cannot ask another lawyer to collaborate with him in a particular case without the consent of the client. The fiduciary nature of attorney-client relationship prohibits this.



The following may not excuse a lawyer from complying with preparation of pleadings: time pressure; inexperience of counsel; assertiveness in espousing his client’s cause or even good faith and honest intention.



Note that a complaint for damages: should allege and state the specific amounts claimed in the body of complaint and the prayer

(Agpalo) 



Some cases involve specialised fields of law require special training. A lawyer should accept an undertaking in specific area of which he knows or should know he is qualified to enter.

and not law not

He may render such service if his client consents, he can obtain a collaborating counsel who is competent on the matter.

Interviewing witnesses 

A lawyer may interview a witness in advance of trial to guide him in the management of the litigation



Witness however must be warned when asked on crossexamination as to whether counsel has conferred with him, a cheap subterfuge employed by some lawyers to entrap a witness in to falsehood, to be truthful and frank to admitting it.



He should avoid any suggestion calculated to induce witness to suppress or deviate from the truth



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

RULE 18.02 ADEQUATE PREPARATION  Rule 18.02. A lawyer shall not handle any legal matter without adequate preparation. NOTES (Agpalo) 

Lawyer should safeguard his client’s rights and interests by thorough study and preparation; mastering applicable law and facts involved in a case, regardless of the nature of the assignment; and keeping constantly abreast of the latest jurisprudence and developments in all branches of the law

Pleadings show the extent of study and preparation, articulate ideas, mirror the personality of the lawyer, and reflect his conduct and attitude. Thus, lawyers must exercise utmost care in the preparation of pleadings. How a lawyer should prepare his pleading: thoroughly discuss the issued raised; refrain from using abrasive and offensive language; not suppress or distort material and vital facts, nor omit relevant documents which bear on the merit or lack of merit of his petition

70

SIGMA LEGIS COPY



LEGAL PROFESSION & ETHICS





A lawyer who enters in midstream has duty to inquire status of the case

An adverse party may be used as witness. But not within the meaning of the rule permitting a lawyer to interview the witness of the opposing party even without the consent of the opposing counsel. REASON: lawyer is forbidden from communicating upon the subject of controversy with the opposite party, except with the latter’s counsel.



A lawyer should see to it that his client attend the pre-trial conference. If client cannot appear, he should secure a written authority to compromise action and submit the case to arbitration



A lawyer should not assume that motion for extension will be granted. He should always inquire with the clerk of court.

It is the lawyer’s duty to obtain witness’s retraction if he committed perjury



If a lawyer failed to present motion for extension of time to file a pleading, motion, brief or memorandum, and within the reglementary period, he should file the same accompanied with a motion for leave to admit it, stating therein the reasons for the delay.



A lawyer who cannot continue representation should ask his client to be allowed to withdraw so that another counsel may be retained. When client refuses, or nowhere to be found, which will render performance of lawyer’s duties difficult or impossible, he should ask that he be discharged or apply or to the court to be released.



Pressure and large volume of legal work provide no excuse for the inability to exercise due diligence

RULE 18.03 NOT TO NEGLECT LEGAL MATTERS  Rule 18.03. A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. 

A lawyer who accepts a legal matter from his client is understood that he will take all procedural steps necessary to prosecute the client’s claim or to defend the client’s rights in the action

Ordinary diligence required  The standard of diligence required of a lawyer is that of a good father of a family. He is not bound to exercise extraordinary diligence

What to do in case of conflict in trial dates  He should lose no time in asking for postponement of the case or cases set later, as he should not give undue preference as against the other EXCEPT in favor of that case wherein the court has served warning, in view of the previous repeated postponements of trial







There is want of required diligence when a lawyer fails without sufficient justification to bring an action immediately, to answer a complaint within the reglementary period, to notify his client of the date of the date of hearing, to attend the scheduled pre-trial conference, to inform the client of an adverse judgment within the reglementary period to appeal, to take steps to have the adverse decision reconsidered or appealed, to ascertain the correct date of receipt of decision, to acquaint himself with what has happened to the litigation, to pay docket fee on appeal, to claim judicial notice sent to him by mail or to file the appellant’s brief If lawyer cannot appear at the scheduled hearing, he should either request another lawyer to appear for him and see to it that he does so or ask for its postponement (without assuming that postponement will be granted)

The most ethical thing to do: inform the prospective client of all the facts so that the latter may retain another lawyer. If client still retains that lawyer, after full disclosure, he assumes the risk and cannot complain of the consequences if postponement is denied and finds himself without an attorney to represent him at the trial

Adoption of system to insure receipt of mails  A lawyer should maintain a system that will insure his prompt receipt of notices and communications sent to him by registered mail at his address of record 

The following will not prevent service of registered mail from being effective after 5 days of notice by postmaster: lawyer could not afford to hire a regular clerk to claim mail; that his clerk failed to call his attention to it; the demands of his work required him to be in different places; changed his address without notice to the court

Notice of change of address 71

SIGMA LEGIS COPY



though they are under subpoena to appear as witnesses for the opposite side.

LEGAL PROFESSION & ETHICS 

A lawyer must make of record his correct address in the case in which he appears for a suit or and to inform the court in writing of his change of address. Otherwise he will not be entitled to be served with judicial notice if address not on record.



He should present by all fair and honorable means, every defense and mitigating circumstance that the law permits to the end that his client may not be deprived of life, liberty or property but by due process of law legally applied.



The effect of failure to notify the court of a change in address is that a notice served at the attorney’s original address is binding upon the client who will suffer the consequences.





Note that if a client dies, the lawyer should inform court within 30 days, and request for the substitution of the decedent in the event that the claim survives death



In defense, a lawyer should not put on a witness stand whom he knows will give a false testimony. He should also not attribute to another person the crime with which his client is charged unless it can be inferred that another may have committed it. A lawyer may not cause the transfer, through misrepresentation of a case pending in one sala to another without the consent of the judge, and for the purpose of obtaining a more satisfactory remedy. He cannot likewise employ improper or dishonorable means to secure acquittal of an accused known to him to be guilty, nor abandon him or withdraw from the case even if he is convinced of his client’s guilt.





While clerk of court may not do his duty, it does not discharge lawyer from the responsibility of seeing that the record on appeal and the evidence are elevated to the appellate court He may not sit idly by and wait until the clerk of court does his duty.

Duty to keep client fully informed  A lawyer must advise his client promptly whenever he has any information to give which it is important that the client receive. These include: withdrawal of appeal and all adverse consequences; mode or manner by which interest is defended of why certain steps are taken or omitted; when client should be present at the hearing of his case

What is required of counsel de oficio  Expected to render effective service and to exert his best efforts on behalf of an indigent accused. 

He ought not to be excused from his responsibility for any trivial reason.

Duty of defense counsel when accused intends to plead guilty  When a client desires to enter a guilty plea, his counsel must fully acquaint himself with the records and surrounding circumstances of the case; confer with the accused and obtain from him his account of what had happened; advise him of his constitutional rights; thoroughly explain to him the import of a guilty plea and the inevitable conviction that will follow; see to it that prescribed procedure is strictly followed and disclosed in the court records. 

The client should also not sit idly by. He is bound to contact his counsel from time to time in order that he may be informed of the progress of his case.

professional writrunners and pleaders: lawyers who handle large volume of cases for less than spectacular fees by advising, influencing, cajoling or even coercing clients to plead guilty, irrespective of their guilt or innocence



Standard of duty required of defense counsel  A defense lawyer is required to render effective legal assistance to the accused, irrespective of his personal opinion as to the guilt of his client (In a criminal case. Remember that he can decline in a civil suit if suit is intended to harass or injure another)

guilt plea system puts the most reputable lawyer into a trying situation. It would be to the client’s advantage in view of the evidence of guilt and in view of the prosecution’s offer or willingess to charge him with a lesser offense if the accused will enter a plea of guilty.



The dilemma: if he were to advise his client to enter a plea, he may be less than true to his duty of extending the best legal assistance. If he were to counsel him to plead guilty, he may be confronted with the problem of division of responsibility as to the correctness of the step taken. Solution: none really. These problems just underscore the



72

SIGMA LEGIS COPY

Requiring clerk or court to do his duty  If the clerk of court is negligent, he shall call the attention of the court to that fact or to file the necessary motion to set the case for pre-trial or trial so that the administration of justice will not suffer any delay

LEGAL PROFESSION & ETHICS

 Dalisay v. Mauricio (2005) F: Valeriana Dalisay was impressed with Atty. Melanio “Batas” Mauricio Jr.’s pro-poor and projustice advocacy, and engaged his services for a civil case where she is the defendant. She handed him all pertinent documents, and paid him a total of P56K. Notwithstanding her payments, Mauricio never rendered any legal service regarding the civil case. Dalisay then terminated their attorney-client relationship and demanded the return of the amounts and documents. Mauricio refused. The SC required Mauricio to refund the P56K and suspended him for 6 months. H: When Mauricio accepted PhP56,000 from Dalisay, it was understood that he agreed to take up the latter’s case and that an attorney-client relationship between them was established. From then on, it was expected of him to serve Dalisay with competence and attend to her case with fidelity, care and devotion. He did not even follow-up the case which remained pending up to the time she terminated his services. There was also no evidence nor any pleadings submitted to show that Mauricio filed any case considering that the filing fee had to be paid simultaneously with the filing of a case. It is clear that Mauricio did not take any step to assist Dalisay in her case, charging P56K is improper. While giving legal advice and opinion on Dalisay’s problems and those of her family constitutes legal services, however, the attorney’s fees must be reasonable. Obviously, P56K is exorbitant. When a lawyer takes a client’s cause, he covenants that he will exercise due diligence in protecting the client’s rights.  Endaya v. Oca (2003) F: The spouses Endaya were sued for unlawful detainer. Atty.Wilfredo Oca of the Public Attorney’s Office was assigned to handle their case. He failed to submit affidavits and position papers required by the MTC. Fortunately for the spouses, the case was dismissed because the MTC held that the plaintiffs in that case were not real-parties-in-interest. On appeal to the RTC, the parties were required to submit memoranda. Oca again failed to submit the documents. The RTC reversed the MTC decision and the Endayas were ordered to vacate the land and pay their debts in arrears. Endaya received the decision and confronted Oca who denied having received the decision. This later proved to be false. The SC suspended OCS for 2 months.

H: Oca’s transgressions show his seeming stubborn mindset against the acts required of him by the courts. This intransigent attitude not only belies lack of diligence and commitment but evinces absence of respect for the authority of the SC and other courts involved. In not filing tha appeal memorandum, Oca denied the Endaya the chance of putting up a fair fight in dispute. He should have left it to the sound judgment of the court to determine whether affidavits support his clients, and not refuse to file altogether. Notwithstanding his belief that without the supporting documents a pleading would be futile, he should have formally and promptly manifested his intent not to file the pleadings to prevent delay. Also, he tried to evade responsibility for his negligence when Endaya confronted him upon receipt of the adverse decision. Oca was untruthful and effectively betrayed the trust placed in him by the client. Oca’s explanations have undertones of dishonesty, especially in being the counsel only for one incident. Though he asked to be relieved, this could not mean that less was expected of him. Once a lawyer takes the case, he owes it to the client to see the case to the end. Also, a lawyer continues to be counsel until the lawyer-client relationship is terminated either by the act of his client or his own act, with permission of the court. Until such time, the lawyer is expected to do his best for the interest of his client.  Rentoy v. Ibadlit (1998) F: Atty. Ibadlit was the lawyer of Reontoy. RTC decided the case against his client. Atty. Ibadlit alleges that he told Reontoy’s brother to inform her that they had lost the case and that appeal was futile. Confident that the brother had conveyed the message and having failed to receive any advise from Reontoy, Atty. Ibadlit did not file an appeal. He was later informed that she wanted to appeal thus he filed a notice of appeal, which was denied for having been filed beyond the reglementary period. H: A lawyer has no authority to waive his client’s right to appeal and constitutes a negligence and malpractice as proscribed in 18.03.  Marivelles v. Mallari (1993) Atty. Mallari represented Mariveles in a BP 22 case, which he lost in the RTC of Davao. Despite numerous extension (totaling 245 days) granted by the CA, Mallari failed to appeal. Hence the decision became final. The SC, however, granted Mariveles appeal, admitting the brief filed by new counsel stating: “Where the negligence of counsel is so great that the rights of the accused are prejudiced and he is prevented from presenting his defense, especially where the appellant raises issues which place in serious doubt the correctness of the trial court’s judgment of conviction, the aforesaid rule [regarding dismissal of appeals] must not be rigidly applied to avoid a miscarriage of justice.” 73

SIGMA LEGIS COPY

need for a defense counsel to be conscientious and diligent in the discharge of his duties to an accused who desires to enter a guilty plea as the best insurance for a clear conscience

LEGAL PROFESSION & ETHICS

H: Coronel is guilty of gross negligence for violating Canon 18 and rule 18.03 particularly. By neglecting to file the answer to the complaint against petitioner, he set off the events which resulted in the deprivation of petitioner’s rights over her house and lot. “It should be remembered that the moment the lawyer takes a client’s cause, he covenants that he will exert all effort for its prosecution until its final conclusion. A lawyer who fails to exercise due diligence or abandons his client’s cause makes him unworthy of the trust reposed on him by the latter.” RULE 18.04 INFORM CLIENT OF STATUS OF CASE  Rule 18.04. A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable period of time to the client’s request for information.  Abay v. Montesino (2003) F: National Institute of Technology, where Abay is a stockholder, availed of Atty. Montesino’s legal service in an action against the estate of Galo. In CA, Montesino failed to file an appellant’s brief so appeal was dismissed. Abay contended that dismissal was due to counsel’s failure to pass appellant’s brief. In defense, Montesino asserted he felt that the case they filed was wrong as the property no longer belonged to the heirs of Galo and that they should recover said property from another person. H: The failure of respondent to file the brief was a clear violation of his professional duty to his client. The Court cited Rule 18.03 and 18.04 of the Code of Professional Responsibility. Not filing the brief was prejudicial because it resulted in the dismissal of the appeal. Respondent failed to exercise due diligence towards the cause of his client. His abandonment of that cause made him unworthy of the trust of the client. Even if he sincerely thinks it’s for the client’s best interest, he should have not abandoned the appeal without the client’s consent. He should have just withdrawn his appearance and allowed the NIT to hire another lawyer. The client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land and he may expect

his lawyer to assert every such remedy or defense. Also, his failure to file the brief despite numerous extensions violates Rule 12.03.  Blanza v Arcangel (1967) F: Due to lack of evidence, the SC dismissed the case against Atty. Arcangel who after volunteering to help petitioners Blanza and Pasion claim pension (in connection with the deaths their PC husbands) failed to inform them of the progress of their case because they had not paid him for photostating expenses he had incurred. H: “A lawyer has a dynamic and positive role in the community than merely complying with the minimal technicalities of the stature. As a man of law, he is necessarily a leader of the community, looked up to as a model citizen. His conduct must, perforce, be par excellence, especially so when, as in this case, he volunteers his professional services. Respondent here has not lived up to that ideal standard. It was unnecessary to have complainants wait, and hope, for six long years on their pension claims. Upon their refusal to co-operate, respondent should have forthwith terminated their professional relationship instead of keeping them hanging indefinitely.” CANON 19 REPRESENTATION WITH ZEAL  Canon 19. A lawyer shall represent his client with zeal within the bounds of law. Rule 19.01. A lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding. Rule 19.02 A lawyer who has received information that his client has, in the course of the representation, perpetuated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he shall terminate the relationship with such client in accordance with the Rules of Court. Rule 19.03. A lawyer shall not allow his client to dictate the procedure in handling the case. NOTES (Agpalo) 

To society: he owes the duty not to engage in unlawful, dishonest, immoral or deceitful conduct. To the legal profession: he is not to engage in conduct that adversely reflects on his fitness to practice law nor to behave in a scandalous manner to the discredit of the legal profession. To the courts: not to do any falsehood, nor consent to the 74

SIGMA LEGIS COPY

 Legarda v. CA (1992) F: Legarda was defendant in a complaint for specific performance. Atty. Coronel, her counsel, failed to file an answer within the period and Legarda was thus declared in default. The lower court rendered a decision against Legarda. Coronel failed to pose an appeal within the period. Thus, the decision became final. The SC suspended Atty. Coronel for six months.

LEGAL PROFESSION & ETHICS





The lawyer’s obligation to represent his client with zeal and devotion must always be within the bounds of the law.



Advocacy, within the bounds of law, permits the attorney to use any arguable construction of the law or rules which is favorable to his client; he is not allowed to advance knowingly a claim or defense that is unwarranted under existing law.



Rule: In espousing his client’s cause, a lawyer should not state his personal belief as to the soundness or justice of his case. Reasons: the lawyer’s personal belief has no real bearing on the case; if expression of belief were permitted, it would give improper advantage to the older and better known lawyer whose opinion would carry more weight; If such were permitted, omission to make such assertion might be taken as an admission of the lack or belief in the soundness of his client’s cause.

While his zeal in the task of advocacy is commendable and his persistence in the discharge of his responsibility is understandable, it should not amount to obstinacy nor should it be carried beyond the limits of sobriety and decorum.

RULE 19.01 FAIR AND HONEST  Rule 19.01. A lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding.

Duty to restrain the client from impropriety  A lawyer should use his best efforts to restrain and to prevent his client from doing those things which he himself ought not to do, particularly with reference to the conduct toward the court, judicial officer, witness and suitor. 

If the client persists in such wrongdoing, the lawyers should terminate their relation.

 Rule 138, Sec. 20(d). Duties of attorneys.—It is the duty of an attorney: (d) 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.

Technical defense  In an annulment of marriage or legal separation proceeding, the circumstance that the state is vitally interested in the maintenance of the marriage relation does not necessarily render improper the lawyer’s appearance for a party in such proceeding and securing for him what is due him under the law.

NOTES (Agpalo)



What is unethical is the lawyer’s participation (i.e. by encouraging the commission of a matrimonial offense, by fabricating evidence, by suppressing evidence) in any collusion between the parties.



Lawyer must also avoid any act which may invite or raise suspicion of collusion.



Consider this situation: A lawyer possesses confidential information acquired from his client who is not in collusion with the other party, the disclosure of which may defeat the action for annulment which outcome his client does not want. The question is whether he as counsel for the plaintiff should reveal the information to the court or whether he, as attorney for the respondent, should plead it as a defense? The question involves conflicting goals and loyalties: To his client, he owes the duty to secure lawfully for him what he desires-the annulment-and to keep inviolate the client’s confidence, both of which require him to keep silent about the damaging information. To the court, he owes the duty to act with honesty and candor, which requires that he divulge the information. To society, he owes the duty to accord fealty to the public policy that





Acceptance of a retainer in a civil suit implies that a lawyer honestly believes that his client has a good cause or defense which is ripe for judicial adjudication. It then becomes his duty to insist upon the judgment of the court as to the legal merits of his client’s claim or defense. But this duty should be carried out using only fair and honest means. Thus, he should not offer in evidence any document which he knows is false; not present any witnesses whom he knows will perjure; make such defense only as he believes to be honestly debatable under the law; abstain from all offensive personality; advance no fact prejudicial to the honor or reputation of a party or witness unless required by the justice of the cause with which he is charged.

75

SIGMA LEGIS COPY

doing of any in court. To the client: to impress upon him compliance with the laws and principles of fairness.

LEGAL PROFESSION & ETHICS client's litigation, or receive anything in discharge of a client's claim but the full amount in cash. NOTES (Agpalo) 

A lawyer is not a gun for hire.



Rule 19.03 warns the lawyer not to allow his client to dictate the procedure in handling the case.



A lawyer should seek instruction from his client on any substantial matter concerning the litigation, which requires decision on the part of the client (i.e. whether to compromise the case, or to appeal an unfavorable judgment.) In procedural matters, the client must yield to the lawyer.



While it is the lawyer’s duty to comply with the client’s lawful request, he should resist and should never follow any unlawful instruction of his client.



Rule: In matters of law, it is the client who should yield to the lawyer and not the other way around. Reasons: Lawyer’s duty to the court is foremost. The dignity of the legal profession may be compromised.



An excuse that a lawyer is only following the client’s instruction cannot justify a lawyer’s violation of the rules and ethics of the legal profession.

RULE 19.02 RECTIFY CLIENT’S FRAUD  Rule 19.02 A lawyer who has received information that his client has, in the course of the representation, perpetuated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he shall terminate the relationship with such client in accordance with the Rules of Court. NOTES (Agpalo) 





Canon 19.02 merely requires the lawyer to terminate his relationship with the client in the event the latter fails or refuses to rectify the fraud. On the other hand, Canon 41 of the Canons of Professional Ethics permits the lawyer to inform the person injured by the fraudulent acts of his client or the injured party’s counsel. Canon 41 may collide with the lawyer’s duty to keep the client’s confidence inviolate which may be the reason for the revision. Rule: A lawyer may not volunteer the information concerning the client’s commission of fraud to anybody, as it will violate his obligation to maintain his client’s secrets undisclosed.

RULE 19.03 CONTROL PROCEEDINGS  Rule 19.03. A lawyer shall not allow his client to dictate the procedure in handling the case.  Rule 138, sec. 23. Authority of attorneys to bind clients.—Attorneys have authority to bind their clients in any case by any agreement in relation thereto made in writing, and in taking appeals, and in all matters of ordinary judicial procedure. But they cannot, without special authority, compromise their

CANON 20 ATTORNEY’S FEES  Canon 20. reasonable fees.

A lawyer shall charge only fair and

Rule 20.01. A lawyer shall be guided by the following factors in determining his fees: a. The time spent and the extent of the services rendered or required; b. The novelty and difficulty of the questions involved; c. The importance of the subject matter; d. The skill demanded; e. The probability of losing other employment as a result of acceptance of the professed case; f. The customary charges for similar services and the schedule of fees of the IBP Charter to which he belongs; g. The amount involved in the controversy and the benefits resulting to the client from the service; h. The contingency or certainty of compensation; i. The character of the employment, whether occasional or established; and j. The professional standing of the lawyer.

76

SIGMA LEGIS COPY

considers marriage as a social institution in the maintenance of which the public is committed. Agpalo’s answer: He should incline the scale of his decision in favor of that solution which will best serve all his loyalties, by declining the professional employment or terminating the professional relationship. His duty to maintain undisclosed his client’s confidence, which outlasts his professional employment, should inhibit him, however, from volunteering such information to any interested party.

LEGAL PROFESSION & ETHICS

Rule 20.03. A lawyer shall not, without the full knowledge and consent of the client, accept any fee, reward, costs, commission, interest, rebate or forwarding allowances or other compensation whatsoever related to his professional employment from any one other than the client. Rule 20.04. A lawyer shall avoid controversies with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice or fraud.  Rule 138, sec. 24. Compensation of attorneys.—An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services, with a view to the importance of the subject matter of the controversy, the extent of the services rendered, and the professional standing of the attorney. No court shall be bound by the opinion of attorneys as expert witnesses as to the proper compensation, but may disregard such testimony and base its conclusion on its own professional knowledge. A written contract for services shall control the amount to be paid therefor unless found by the court to be unconscionable or unreasonable.  Rule 138, sec. 32. Compensation for attorneys de oficio.—Subject to availability of funds as may be provided by law the court may, in its discretion, order an attorney employed as counsel de oficio to be compensated in such sum as the court may fix in accordance with section 24 of this rule. Whenever such compensation is allowed, it shall not be less than P30 in any case, nor more than the following amounts: 1) P50 in light felonies; 2) P100 in less grave felonies; 3) P200 in grave felonies other than capital offenses; 4) P500 in capital offenses.  RA 5185, sec. 6 (An act granting further autonomous powers to local governments) Prohibition Against Practice. - A member of the Provincial Board or City or Municipal Council shall not appear as counsel before any court in any civil case wherein the province, city or municipality, as the case may be, is the adverse party: Provided, however, That no member of the Provincial Board shall so appear except in behalf of his province in any civil case

wherein any city in the province is the adverse party whose voters are en-franchised to vote for provincial officials, nor shall such member of the Provincial Board or City or Municipal Council appear as counsel for the accused in any criminal case wherein an officer or employee of said province, city or municipality is accused of an offense committed in relation to the latter's office, nor shall he collect any fee for his appearance in any administrative proceedings before provincial, city or municipal agencies of the province, city or municipality, as the case may be, of which he is an elected official. The provisions of this Section shall likewise apply to provincial governors and city and municipal mayors. NOTES (Agpalo) A.

Right to Attorney’s Fees

Generally  That the practice of law is a profession and not a moneymaking trade does not operate to deny a lawyer the right to attorney’s fees for his professional services. He has the right to have and recover from his client a fair and reasonable compensation for his services, except in cases where he has agreed to render service gratuitously or has been appointed counsel de oficio. 

Compensation of lawyer should be a mere incident of the practice of law; the primary purpose should be public service. Being an officer of the court, what a lawyer may collect as his fees is always subject to judicial control.



Lawyers should avoid controversies concerning compensation so far as shall be compatible with selfrespect and with right to receive a reasonable recompense for services. Resort to law suits with clients should only be done to prevent injustice, imposition or fraud. The impression is that those instituting suits are mercenaries.

Right to protection for counsel fees  Because the practice of law is not a business and attorney’s vital role in administration of justice there is the need to secure the lawyer his honorarium lawfully earned as a means to preserve the decorum and respectability of the legal profession. 

Duty of court not only to see that a lawyer acts in a proper and lawful manner but also to see that a lawyer is paid his just fees.



With his capital consisting only of his brains and skill acquired at tremendous cost in money, time and energy, he is entitled to protection of any judicial tribunal against 77

SIGMA LEGIS COPY

Rule 20.02. A lawyer shall, in cases of referral, with the consent of the client, be entitled to a division of fees in proportion to the work performed and responsibility assumed.

LEGAL PROFESSION & ETHICS





General rule: only the client who engaged the services of counsel either personally or through an authorized agent is liable for attorney’s fees.



Exceptions rest on equitable principle that a person who accepts the benefits of the legal representation impliedly agrees to pay the lawyer’s service for he may not unjustly enrich himself at the expense of the lawyer.

GENERALLY: right of lawyer to reasonable compensation for services requires the following: 1. that attorney-client relationship exists; and 2. that he rendered services to the client.

Written agreement  A written agreement is not necessary to establish a client’s oblig to pay attorney’s fees. As long as the lawyer is honestly and in good faith trying to serve and represent the interest of his client, an absence of express undertaking does not defeat recovery of fees. 

Acts of recognition, acquiescence by a client in his attorney’s conduct may take the place of a request to act, provided that the case was such that the client might reasonably know that he would be expected to pay the service.



Client’s obligation to pay attorney’s fees arises from the inanimate contract of facis ut des (I do and you give) which is based on the principle that no one shall unjustly enrich himself at the expense of another.

Liability of persons benefited by counsel’s services  General rule: a person who had no knowledge of, or objected to, the lawyer’s representation may not be held liable for attorney’s fees even though such representation redounded to his benefit.. The objection should be raised before and not after beneficial services shall have been rendered by the lawyer; otherwise, the party who benefited may be required to pay counsel fees. For it is neither just that client who retained lawyer should alone pay nor is it fair that those who, investing nothing and assuming no risk, received benefits should not contribute their proportionate share to counsel fees (based on equity). 

Quantum meruit  When no price is stipulated for lawyer’s service, courts will fix amount on quantum meruit basis, or such amount which his service merit. 





Requisite for principle: that there is an acceptance of the benefits by one sought to be charged for the services rendered under circumstances as reasonably to notify him that the lawyer performing the task is expecting to be paid compensation. Doctrine of quantum meruit is a device to prevent undue enrichment based on the equitable postulate that it is unjust for a person to retain benefit without paying for it. Other times when doctrine applicable: where amount stipulated in written agreement is found to be unconscionable or where client dismissed counsel before termination of case or where the lawyer withdrew therefrom for valid reasons.

Who is liable for attorney’s fees

That a person who employed lawyer as counsel for a party has not been duly authorized to do so does not necessarily exempt latter from liability to pay attorney’s fees. If legal representation redounded to his benefit, retention or acceptance of the benefit cures defect of lack of authority on part of agent to retain the lawyer on party’s behalf and creates oblig to pay lawyer. Exception: employment of lawyer to represent government entity by an official who has no authority in law. since the benefits secured by the legal representation cannot take the place of the law and will not create an obligation on the part of the government entity to pay the private lawyer for his services.

Liability of assignee  Since assignee of all interests pendente lite usually steps into shoes of assignor and acquires all of latter’s rights and obligations in the action, assignee may be held liable for counsel fees from out of the proceeds of favorable judgment. This obligation gives the assignee the right to intervene in fixing amount of fees which may be a proper charge against the judgment rendered in the action. Liability in labor cases  Lawyer who represented a union and its members and with whom he has a retained for payment of a fixed percentage of amounts recovered from the company is entitled to be paid not only by union members but by non-union members as well who derived benefits from his services. But where benefits were given not because of lawyer’s services but because of company policy, lawyer is not entitled to claim attorney’s fees.

78

SIGMA LEGIS COPY

any attempt on the part of his client to escape payment of his just compensation. (ironic if, after putting the best in him to secure justice for his client, he himself would not get his due)

LEGAL PROFESSION & ETHICS Attorney’s fees in labor cases may not be more than what the law provides and they may not be checked off from any amount due the employees without their written consent.



To hold the estate ultimately liable for attorney’s fees requires that the person to whom the services were rendered was at the time the executor or administrator and the services were rendered to him in that capacity.

Liability in derivative suits  Where, in a derivative suit, the professional services of counsel who instituted the action upon request of a stockholder are beneficial to the corporation, counsel fees may be properly charged against corporate funds. But as any stockholder may file a derivative suit on behalf of the corporation, any other stockholder may intervene and oppose the grant of such fees as a charge against funds of the corporation.



Where administrator is himself counsel for the heirs, heirs must pay attorney’s fees.



The person who retained the lawyer and not the estate is the one liable for AF arising out of a litigation in the protection of a particular person or between beneficiaries or an executor or administrator and an heir except with respect to those services which were rendered for the benefit of the estate prior to the controversy provoked by the heir.

Liability in receivership proceedings  Assets under receivership may be liable for fees of lawyer employed by a receiver to help him in the discharge of his duties.



Attorney’s fees of a lawyer employed by an executor to secure approval of a will may, if the lawyer is successful, be properly charged against estate. But the estate may not be liable for counsel fees for services rendered to annul a will at the request of the executor (executor liable). Rationale: executor’s duty is to enforce and not invalidate the will (will – desire, command of owner of the estate as to how the inheritance shall be distributed).



Lawyer who acted as counself for administrator to secure invalidation of will may have his fees charged against the estate if its disapproval would mean bigger share in the inheritance of the administrator as an heir and other heirs similary situated. Benefit of legal representation to estate: difference between what they would receive without a will and what they would have received under the will.



But attorney’s fees of the counsel for a defendant in a receivership proceeding are personal obligs of defendant and may not be paid out of the funds in the hands of the receiver, unless services rendered by lawyer have redounded to benefit of receivership or of plaintiff who asked for the appointment of the receiver.

Liability in trusteeship or guardianship proceedings  Same rule for trusteeship and guardianship proceedings: trustee may be indemnified out of the trust estate for his expenses in rendering and proving his accounts and for the related counsel fees in the same way that property of the ward may lawfully answer for counsel fees of the lawyer employed by guardian. Both are, however, subject to court approval. Liability in estate proceedings  Executor or administrator who employs services of an attorney may not hold estate directly liable for his fees. He may, however, if services are beneficial to the estate, seek reimbursement from the estate if he has already paid them or include them in his account with due notice to all parties interested. 

Ultimately, estate will answer for the fees of lawyer whose services are beneficial to estate, and if the assets have been distributed, distributees or heirs will contribute their share to the counsel fees as the obligs of the estate follow the assets wherever they are except in hands of a purchaser in good faith.

Who are entitled to or to share in attorney’s fees  Lawyer engaged by client is one entitled to have and recover no more than a reasonable compensation for his services. If more than one lawyer employed, general rule: lawyers who jointly represent a common client for a give fee, in the absence of agreement as to division of fees, share equally as they are special partners for a special purpose. 

Fees of lawyers separately employed by client will depend upon their respective fee arrangements with client. But if there is no such arrangement, or if they have rendered services at one time or another, each of them will be entitled to no more than what his services actually performed are reasonably worth.



Right of lawyer to share in the professional fees rests on services performed or on his being, based on an agreement, a partner of another or in a law firm.



Improper for an attorney to receive compensation for merely recommending another lawyer to his client because such practice would tend to germinate evils of 79

SIGMA LEGIS COPY



LEGAL PROFESSION & ETHICS

Non-lawyer not entitled to fees  Non-lawyer cannot recover attorney’s fees even if there is a law authorizing him to represent a litigant in court because basis of reasonable compensation is the existence of attorney-client relationship and the rendition of services. Restrictions on some lawyers to charge fees  Lawyer who is absolutely disqualified from engaging in private practice of law by reason of his government position may neither practice law nor, should he do so illegally, charge attorney’s fees for such services. Exception: fees for services already performed before lawyer qualified for public office even though payment is made thereafter. 

Executor or administrator is prohibited from charging the estate under his administration of his professional fees for services rendered by him as a lawyer. Basis: One acting in a fiduciary capacity must no place himself in such a position as to make his interests antagonistic with those of his principal. This principle, even in absence of an express statutory prohibition, also restricts right to or limits amount of attorney’s fees which a lawyer who occupies a fiduciary position may otherwise collect from his principal for his services as an advocate.

Right of counsel de oficio to fees  Lawyer designated by court to render professional services, in the absence of law allowing compensation, cannot charge government nor the indigent litigant for his professional services. Appointment neither violates constitutional restriction against taking of property without just compensation or the due process of law nor imposes upon the government the oblig to pay him his fees because one of the obligs of an attorney willingly assumed when he took his oath as lawyer is to render free legal services whenever required by the court to do so. 

Rules of Court: Court, in its discretion, may grant (token) compensation subject to availability of funds: P30-P50 in light felonies; P100 in less grave felonies; P200 in grave felonies other than capital offenses; P500 in capital offenses. This is not intended as a source of regular income



Misconduct on part of lawyer may affect or negate his right to recover from client a reasonable compensation for services already performed. (examples: negligence, carelessness, misrepresentation, unfaithfulness or abuse of client’s confidence). Basis: good morals and public policy



Adverse result of litigation does not in itself deprive a lawyer of right to claim a reasonable compensation unless it is due to lawyer’s misconduct or fee stipulated is contingent upon favorable outcome of action. Honest mistake does not defeat right to fees.

Withdrawal of counsel from the case  Unceremonious withdrawal from or abandonment of action which prejudices client negates right to compensation for services rendered. It is a breach of implied undertaking to prosecute or defend until termination of litigation. 

Lawyer who is forced to resign, with client’s conformity or in accordance with prescribed procedure, because of his own fault or misconduct loses right to fees earned.



Withdrawal of counsel who has done work faithfully does not affect his right to fees. If with client’s written consent, it is presumed that they mutually agreed to terminate services and to compensate lawyer for services until termination. Laywer should refund part of retainer as has not been clearly earned. If without client’s written consent but for a justifiable cause made after due notice to client, lawyer may recover reasonable worth of his services up to date of withdrawal unless fee is contingent and contingency has not arisen.

Representation of adverse interests  Simultaneous representation of opposing parties, in the absence of client’s consent to the dual representation made after full disclosure of the facts, negates right to fees from both. 

Lawyer’s acceptance of employment from new client against a former client in a matter related to former controversy precludes recovery of fees from the former client only if the latter objected to representation. But new client could not defeat right to fees in the absence of concealment and prejudice by reason of lawyer’s previous relationship with adverse party.

Lawyer’s right unaffected by client’s conduct  Although a client has right to discharge lawyer anytime, dismiss or settle action or even waive the whole of his interest in favor of adverse party, he cannot, in the absence of lawyer’s fault, consent or waiver, deprive the lawyer of his just fees already earned.

Attorney’s conduct affecting his right to fees Attorney’s discharge by client 80

SIGMA LEGIS COPY

commercialism and to destroy proper appreciation of professional responsibility.

LEGAL PROFESSION & ETHICS



Discharge of lawyer by his client without a valid cause before conclusion of litigation does not negate lawyer’s right to recover payment for services. Whether it will affect right to fees or not will depend on existence or absence of a valid written contract for professional services and nature of that contract. No express written agreement as to fees: reasonable value of services til date of dismissal. Express agreement as to fees not reduced to writing: reasonable value of services til date of dismissal. Except: where dismissal comes after successful prosecution or defense: full amount





Contract in writing and fee stipulated is absolute and reasonable: full amount. Fee stipulated in valid written contract contingent: reasonable value of services rendered. If contingency occurs or client prevents its occurrence by dismissing, settling or waiving his cause: full amount Lawyer should question discharge to entitle him to recover under the contract, otherwise quantum meruit basis will be applied. Discharge of lawyer for cause does not necessarily deprive lawyer of right to be paid for his services. He may only be deprived if cause for dismissal constitutes in itself a sufficient legal obstacle to recovery.

Client’s dismissal of action  Client may dismiss action even without consent of lawyer but he cannot deprive lawyer of his attorney’s fees for services rendered, in the absence of a waiver. In good faith and based on honest belief that client has no valid cause: reasonable worth of services, except: fee is contingent – no recovery In bad faith and intended to defraud lawyer of compensation: full amount stipulated in valid written contract or, in its absence, reasonable value of services based on quantum meruit 

Lawyer’s consent to dismissal does not negate right to compensation unless such consent amounts to waiver of right.

Client’s compromise of action  Lawyer cannot prevent client from settling case due to right to reasonable compensation, in the same way that client cannot, by entering into a compromise agreement, deprive lawyer of his fees in the absence of waiver on lawyer’s part.

With consent of lawyer: reasonable value based on quantum meruit In bad faith or in fraud of counsel: full amount stipulated in valid contract or, in its absence, reasonable worth of services 

B.

Client has no right to compromise or waive so much of acknowledged claim secured through efforts of lawyer as would prejudice stipulated fee, whether absolute or contingent, and adverse party has no right to accept such compromise or waiver unqualifiedly. Contract for Attorney’s Fees

Forms of Contract for Legal Service 1. 2. 

Oral Written – this is more advantageous for lawyers, hence, most contracts for attorney’s fees are in this form. Advantages of a Written Retainer Contract: there is control of amount of fee; if lawyer’s service is terminated without justifiable cause, lawyer is entitled to full amount of fees

When lawyer cannot recover full amount despite existence of retainer  Situations wherein Counsel Cannot Recover Full Amount Despite a Written Retainer Contract: when the services called for were not performed as when the lawyer withdrew before case is finished, unless withdrawal justified; when there is a justified dismissal of the attorney, the contract will be nullified and payment shall be based on quantum meruit; when the stipulated attorney’s fees are unconscionable; when stipulated attorney’s fees are in excess of what is expressly fixed by law; when lawyer is guilty of fraud and bad faith toward client in the matter of employment; when the counsel’s services were worthless because of his negligence; when contract of employment is illegal, against morals and public policy; serving adverse interests, unless lawyer proves he acted with consent and acquiescence of both parties Kinds of Attorney’s Fee Stipulation 1. 2. 3. 4. 5. 6.

Absolute Contingent Fixed Fee payable per appearance Fixed Fee computed by number of hours spent Fixed Fee based on piece work Combinations of other stipulations

Concepts of Attorney’s Fees 1. Ordinary: an attorney’s fee is the reasonable compensation paid to a lawyer for the legal services he has rendered to client. Basis is employment by client 2. Extraordinary: an attorney’s fee is an indemnity for 81

SIGMA LEGIS COPY



LEGAL PROFESSION & ETHICS





Generally, attorney’s fees in concept of damages are not recoverable due to public policy. There are however exceptions to the rule.

Kinds of Retainer 1.

services rendered.

General Retainer (retaining fee): Fee paid to a lawyer to secure his future services as general counsel for any ordinary legal problem that may arise in the routinary business of the client and referred to him for legal action.

Contingent Fee Contract 

A contingent fee contract is an agreement in writing in which the fee, usually a fixed percentage of what may be recovered in action is made to depend upon the success in the effort to enforce or defend a supposed right.



Lawyer gets paid only if he wins the case for the client unless the client prevents the successful prosecution or defense of the action, in which case the lawyer will be entitled to recover on quantum meruit basis or to the full amount as fixed in a valid written agreement.



A much higher compensation is allowed as contingent fees in consideration of the risk that the lawyer will get nothing if case fails. Contingent fee of 30% of money judgment is still considered valid.



A lawyer usually advances expenses of litigation as more often than not the client is not in a financial capacity to pay. This contract is often the only way that a poor litigant may have his right enforced or protected by a lawyer.



In contrast to a champertous contract, a contingent fee contract is allowed by law. A champertous contract is one wherein the lawyer during litigation will shoulder all the expenses and by the end of the case, if a favorable decision is rendered, the lawyer will get all the rewards, including monetary and non-monetary claims.

This could be paid monthly or annually, depending on lawyer-client arrangement. This is considered as compensation for lost opportunity. 2.

Special Retainer: Fee which client will pay to his lawyer for a specific matter (case/service), possibly in addition to a general retainer.

Rationale for Adequate Compensation 

Adequate compensation is necessary in order to enable lawyer to serve his client effectively and to preserve the integrity and independence of the profession. The legal profession cannot remain a viable force in fulfilling its role in our society unless lawyers receive adequate compensation for his services. A lawyer like all human beings has a right to livelihood.

Effects of Nullity of Contract 1.

2.

preclude a lawyer from recovering fees for such services (if nullity based on illegality of object sought to be achieved) lawyer entitled to recover what is justly due him for his services based on quantum meruit ( if nullity not based on illegality of object)

Validity of Contingent Fee Contract 

Effects of Unconscionability of Amount 



The Court protects the client by monitoring the amount paid to lawyers. Such amount must always be reasonable to avoid abuse of clients by lawyers. Reasonability of fee is determined from the facts of each case. It is considered as reasonable if it is within the capacity of client to pay, and is directly commensurate with the value of the legal

In contrast, amount is considered as unconscionable if it is such that no man in his right senses would offer on one hand and no honest and fair man would accept on the other. 1. contract for attorney’s fees invalidated 2. recovery of attorney’s fees based on quantum meruit

Validity depends on reasonableness of the amount fixed as contingent fee based on circumstances of the case. It is generally valid and binding unless it is obtained by fraud, imposition or suppression of facts, or the fee is so clearly excessive as to amount to extortion.

Construction of Professional Contract 

General rule to be followed is that to adopt such a construction as would be more favorable to client even if it would work prejudice to lawyer.



A lawyer who prepares a contract of professional services is presumed to have seized up the entire situation before entering into agreement. 82

SIGMA LEGIS COPY

damages ordered by court to be paid by losing party to the prevailing party in litigation; payable not to lawyer but to the client, unless otherwise agreed upon; also known as attorney’s fee as damages

LEGAL PROFESSION & ETHICS Words inserted by client in his own handwriting are to be taken in his favor, the insertion presumed to have been made for his benefit.



It is interpreted in accordance with its terms and in favor of greatest reciprocity of interest.

 Research and Services Realty V. CA (1997) F: After termination, Atty. Fonacier filed suit for Urgent Motion to Direct Payment of Attorney’s Fees &/or Register Attorney’s Charging Lien claiming that noncollection cases were included in the contingent fee arrangement specified in his retainer contract wherein there was to be contingent compensation for any award arising from any lawsuit handled by him. This was acted upon favorably by RTC ordering Research and Services Realty (RSR) to pay Fonacier P600K as attorney’s fees based on quantum meruit. RSR appealed and contended that Fonacier has no justification to claim attorney’s fees as: he was not entitled to attorney’s fees in retainer contract and he did not exert effort to amicably settle specific case nor was he even present during negotiation of the same. The SC held that Fonacier is entitled to claim attorney’s fees for noncollection cases but that his attorney’s fee on a contingent basis is unwarranted. H: The absence of stipulation of additional attorney’s fees cannot be construed as a bar to the collection of additional attorney’s fees in noncollection cases. Nothing therein shows that Atty. Fonacier agreed to render professional services in such cases gratuitously. The civil case in question is not yet resolved and no judgment has yet been rendered in favor of RSR. If at all Fonacier may be entitled to attorney’s fees, it would be on the basis if quantum meruit as of the expiration of his retainer contract on 31 March 1993.  Metropolitan Bank and Trust Co. v CA (1990) F: Lawyers filed verified motion to enter in the records their charging lien. Attorney’s liens were annotated on the certificate of land titles. Consequently, the other party’s petition against sale of land was granted with prejudice and a new certificate of title with his name was made wherein attorney’s liens were annotated. The Court held that the lawyers were not entitled to the enforcement of charging lien for payment of its attorney's fees and also held that a separate civil suit is not necessary for the enforcement of such lien. H: A charging lien, to be enforceable as security for the payment of attorney's fees, requires as a

condition sine qua non a judgment for money and execution in pursuance of such judgment secured in the main action by the attorney in favor of his client. A lawyer may enforce his right to fees by filing the necessary petition as an incident in the main action in which his services were rendered when something is due his client in the action from which the fee is to be paid. An enforceable charging lien, duly recorded, is within the jurisdiction of the court trying the main case and this jurisdiction subsists until the lien is settled. There is certainly no valid reason why the trial court cannot pass upon a petition to determine attorney's fees if the rule against multiplicity of suits is to be activated.  Quirante v. IAC (1989) F: Atty Quirante filed motion for confirmation of attorney’s fees in the trial court, presenting alleged agreement between him and Casasola about said fee while the main case is still pending. The case is being heard on appeal. The Court held that Atty. Quirante cannot have a confirmation of attorney’s fees. H: Since the main case from which the petitioner's claims for their fees may arise has not yet become final, the determination of the propriety of said fees and the amount thereof should be held in abeyance. This procedure gains added validity in the light of the rule that the remedy for recovering attorney's fees as an incident of the main action may be availed of only when something is due to the client.  Tanhueco v. de Dumo (1989) F: De Dumo is Tanhueco’s counsel for recovery of indebtedness from different debtors. No document about their lawyer-client relationship but Hilaria offered to give 15% of what de Dumo may be able to collect from debtors. Contrary to this, Lawyer contends that their agreement is to give him 50% of debt collected. The Court held that the attorney’s fees charged by de Dumo were unacceptable. H: The contingent fee here claimed was, under the facts obtaining in this case, grossly excessive and unconscionable. Such a fee structure, when considered in conjunction with the circumstances of this case, also shows that an unfair advantage was taken of the client and legal fraud and imposition perpetrated upon her. It must be stressed that the mere fact that an agreement had been reached between attorney and client fixing the amount of the attorney's fees, does not insulate such agreement from review and modification by the Court where the fees clearly appear to be excessive or unreasonable. This Court has power to guard a client, especially an aged and necessitous client, against such a contract. Rule 138, § 32 Compensation for attorneys de oficio. Subject to availability of funds as may be provided by law the court may, in its discretion, order an attorney employed as counsel de oficio to be compensated in such sum as the court may fix in accordance with section 24 of this rule. Whenever such 83

SIGMA LEGIS COPY



LEGAL PROFESSION & ETHICS

 Albano v. Coloma (1967) F: Coloma was Albano’s counsel during the Japanese occupation. According to Albano, Coloma failed to expedite hearing and termination of case. Coloma denied that she did nothing to expedite the hearing and termination of such civil case as the records would show otherwise. After Albanos won in the case, Coloma intervened to collect attorney’s fee which is computed at 33.3% of what the Albanos can recover. The Court held that Coloma may recover attorney’s fees. H: Counsel, any counsel, if worthy of his hire, is entitled to be fully recompensed for his services. With his capital consisting solely of his brains and with his skill, acquired at tremendous cost not only in money but in the expenditure of time and energy, he is entitled to the protection of any judicial tribunal against any attempt on the part of a client to escape payment of his fees. It is indeed ironic if after putting forth the best that is in him to secure justice for the party he represents, he himself would not get his due. Such an eventuality this Court is determined to avoid. RULE 20.01 FEE GUIDE  Rule 20.01. A lawyer shall be guided by the following factors in determining his fees: a. The time spent and the extent of the services rendered or required; b. The novelty and difficulty of the questions involved; c. The importance of the subject matter; d. The skill demanded; e. The probability of losing other employment as a result of acceptance of the professed case; f. The customary charges for similar services and the schedule of fees of the IBP Charter to which he belongs; g. The amount involved in the controversy and the benefits resulting to the client from the service; h. The contingency or certainty of compensation; i. The character of the employment, whether occasional or established; and j. The professional standing of the lawyer.

(Agpalo) Amount Fixed in a Valid Contract  A valid written contract is conclusive as to amount of compensation. Unless both parties set aside contract and submit question of reasonableness of amount of fees for court to resolve on quantum meruit basis, neither client nor lawyer may disregard amount fixed. Rule 20.01 as guide only  none of the factors is controlling but are guides only. Other factors: a) actual purchasing power of Philippine peso b) omission or fault of lawyer c) loss of opportunity on part of lawyer for other employment d) financial capacity of client Amount based on Quantum Meruit  Quantum Meruit means as much as a lawyer deserves. Its essential requisite is acceptance of the benefits by one sought to be charged for services rendered under circumstances as reasonably to notify him that lawyer expects compensation. Instances when Court will fix Amount of Attorney’s Fees based on Quantum Meruit 1. agreement is invalid for some reason other than illegality of object of performance 2. amount stipulated is unconscionable 3. no agreement as to fees existed between parties 4. client rejects amount fixed in contract as unconscionable and is found to be so 5. lawyer, without fault, was unable to conclude litigation 

Agpalo adds (1) the results secured and (2) whether of not the fee is contingent, it being recognized as a rule that an attorney may properly charge a higher fee when it is contingent that when it is absolute.



Even other consideration may be the actual purchasing power of the Philippine Peso, the omission of fault of the lawyer in the discharge of his duties, the loss of opportunity on the part of a lawyer for other employment of the financial capacity of the client.



Loss of Opportunity for other employment may be due to (1) the acceptance of a retainer or (2) that the work may require tedious details and considerable time.

Nature of services  Value of lawyer’s services determined in large measure by nature, quality and quantity of services. Competence judged by character of work.

NOTES 84

SIGMA LEGIS COPY

compensation is allowed, it shall not be less than thirty pesos (P30.00) in any case, nor more than the following amounts: (1) Fifty pesos (P50.00) in light felonies; (2) One hundred pesos (P100.00) in less grave felonies; (3) Two hundred pesos (P200.00) in grave felonies other than capital offenses; (4) Five hundred pesos (P500.00) in capital offenses.

LEGAL PROFESSION & ETHICS Hotly-litigated action requires more work and higher fee than a simple money claim.



Lawyer’s services should be taken as a whole.



Time employed not in itself an appropriate basis for fixing amount but length of employment which runs for years is significant as the longer the period of employment the more work it entails and the lesser the opportunity lawyer has for other profitable retainers.



Time devoted for study and research must also be considered.



That lawyer has been helped by assistants in his office cannot reduce compensation as he is paying his assistants and is not expected to do everything personally. (like an army general who directs and supervises, and deserves credit for victory won)

Skill and standing of attorney  Skill, experience and standing of lawyer bear a direct proportion to amount of attorney’s fees. 

Reputation for professional capacity and fidelity to trust acquired through years of hard labor and devotion to duty, evidenced by quality of work and eminent standing in community.



Argument made in a pleading or brief or orally in court acquires a different meaning and import according to persuasive ability of professional and personal prestige of lawyer.



Ability, skill and competence cannot be measured by lawyer’s income or length of practice. Lawyer’s competence and ability must be judged by character and quality of his work and services not only in the field of law but in other fields of public and private endeavors. Court may take judicial notice of the prestige of a lawyer as a distinguished member of the bar.



Value of interest involved  The bigger the size or value of interest or property involved the higher the attorney’s fees. Reason: the higher the stakes the more case is hotly litigated and the greater the efforts the lawyer exerts. 

But: in a million peso litigation, percentage fee contingent upon recovery becomes smaller as amount of recovery gets bigger because amount

of work required remains the same even though interest in controversy exceeds several million pesos. 

In the last analysis, value of interest depends upon extent of the special and additional services and efforts demanded of the case.

Loss of opportunity for other employment  Loss of opportunity for other employment on part of lawyer should be considered. 

Two ways: (1) acceptance of retainer from client will preclude a lawyer from appearing for others in cases likely to arise out of the transaction in view of prohibition against representation of adverse interests; (2) work may require tedious details and considerable time that may deprive him of opportunity to render legal services in other cases

Difficulty of issues involved  Novel or difficult issues require greater efforts on part of lawyer in terms of preparation, study and research to convince court as to the soundness of client’s cause. 

In fixing lawyer’s fees, court looks at novelty or difficulty of issue and the demands they impose on lawyer’s part.

Test case  Where there are several identical actions or possible disputes and one case is litigated as a test case, value in controversy of all actions should bear its appropriate proportion to the amount due as fees to lawyer who prosecuted test case (totality of the amounts in all the actions dependent upon the result of test case).  A test case is usually litigated with energy and diligence even if the actual amount is insignificant because the resolution of the other actions which involve large sums of money is made to depend on the favorable outcome of the test case. 

Those who may be benefited by the result of the test case may be required to contribute a proportionate share to fees of lawyer who prosecuted test case.

Results secured  Winning client may be more than willing to pay for stipulated amount while losing client may hesitate. In fixing waht a lawyer is reasonably entitled to, result of case is given much weight. 

That a lawyer, in spite of his efforts, failed to secure for his client what he desires, does not, however, deprive him of the right to recover compensation for his services except when fee agreed upon is contingent. (Practice of law would cease to be dignified and honorable if all professional fees contingent fees.) 85

SIGMA LEGIS COPY



LEGAL PROFESSION & ETHICS

Capacity of client to pay  Financial ability of client to pay may be considered in determining amount of fees, not to enhance what is reasonable but to ascertain whether client is able to pay a fair and just compensation. It may be looked into as an incident in determining importance and gravity of interests involved. 

Poor, ignorant client may not be in a position to appreciate what a reasonable fee is and may likely agree, because of his necessities, to anything his counsel proposes. While a wealthy client can deal with lawyer at arm’s length.

Statutory limitation as to fees  Legislature, in the exercise of its police power, may by law precribe the limit of the amount of attorney’s fees which a lawyer may charge. A contract beyond the limit is null and void, and the lawyer who collects in excess of the limit may be criminally held liable. 

Law should be interpreted strictly and not extended beyond what it expressly comprehends.

RULE 20.02 CLIENT’S CONSENT OF FEES FOR REFERRAL

experience in the subject matter involved in a particular case. 

It is however stressed that it is improper for a lawyer to receive compensation for merely recommending another lawyer to his client for if such practice is permitted, it would tend to germinate evils of commercialism and to destroy proper appreciation of professional responsibility.



It is only when, in addition to referral, he performs legal service or assumes responsibility in case that he will be entitled to a fee.

 Urban Bank, Inc. v. Pena (2001) F: Atty. Pena was issued a letter of authority which gave him the right to represent Urban Bank in any court action connected with eviction. But Pena, before doing so, made clear that it is ISC which availed of his service. This letter was later on altered. After eviction, Pena filed collection suit versus Urban Bank. With this, Urban Bank filed case versus Pena, alleging that they were not the one who availed of Pena’s legal services. The Court did not agree that Pena should be disbarred on the ground of deceit, malpractice and gross misconduct. H: Atty. Pena can hardly be faulted and accused of deceit, malpractice and gross misconduct for invoking the aid of the court in recovering recompense for legal services which he claims he undertook for the bank and which the latter does not deny to have benefited from. RULE 20.03 CLIENT’S CONSENT OF ACCEPTANCE FEE FROM THIRD PERSONS

 Rule 20.02. A lawyer shall, in cases of referral, with the consent of the client, be entitled to a division of fees in proportion to the work performed and responsibility assumed.

 Rule 20.03. A lawyer shall not, without the full knowledge and consent of the client, accept any fee, reward, costs, commission, interest, rebate or forwarding allowances or other compensation whatsoever related to his professional employment from any one other than the client.

Rule 20.02 - A lawyer shall, in case of referral, with the consent of the client, be entitled to a division of fees in proportion to the work performed and responsibility assumed.

 Rule 138, sec. 20(e) . Duties of attorneys.—It is the duty of an attorney: (e) … to accept no compensation in connection with his client's business except from him or with his knowledge and approval.

NOTES (Agpalo)

NOTES (Agpalo)





Lawyers sometimes use the lawyer-referral system. It is an aid to selection of qualified lawyers. This system helps individuals in locating lawyers competent to handle their particular problem. It enables laymen to have informed selection of competent lawyers who have

The reason for the rule is to ensure protection of lawyers in collection of fees. Moreover, it is designed to secure the lawyer’s wholehearted fidelity to the client’s cause and to prevent that situation in which the receipt by him of a rebate or commission from another in connection with the client’s cause may interfere with the full discharge of his duty to the client. It must be noted that the amount 86

SIGMA LEGIS COPY

Whether fee is contingent  Contingent fee: lawyer entitled to higher compensation than if fee were absolute. Reason: risks borned by lawyer as to reimbursement of expenses advanced

LEGAL PROFESSION & ETHICS 

Lawyer should first administrator or executor to pay.



If administrator or executor refuses, lawyer may: File independent civil action against administrator or executor in his personal capacity. If latter is ordered to pay, he may in turn include the amount paid in his account filed with probate court.

RULE 20.04 AVOID COMPENSATION CONTROVERSY WITH CLIENT  Rule 20.04. A lawyer shall avoid controversies with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice or fraud.

File petition with probate court praying that court, after due notice to all persons interested, allow his claim and direct administrator or executor to pay. 

If administrator or executor dies before lawyer’s fees could be paid, he may file claim against (1) estate of deceased administrator or executor or (2) a petition for allowance of his fees with probate court, but not against substitute or new administrator.



When to enforce right to fees: before estate proceeding is definitely closed. General rule: probate court loses jurisdiction to entertain and adjudicate fees after proceeding closes. Exceptions: (1) when petition for allowance of fees filed before closure (2) distribution of assets made without prejudice to claim for attorney’s fees



Allowance of counsel fees in estate proceedings rests on sound discretion of probate court but it may be modified by appellate court when fee allowed is inadequate or excessive.



Order fixing fees continue to be under control of probate court until proceeding is closed and may increase or decrease depending on facts and circumstances even though fee has been fully or partially paid. But an order of probate court which has been affirmed or modified by appellate court can no longer be changed by probate court. The latter cannot order immediate payment of fees after perfection of an appeal from order allowing it.



In case where probate court has lost jurisdiction after final closure of estate proceeding, lawyer may file independent civil action against administrator in his personal capacity and against distributees of the assets of the estate.

NOTES (Agpalo) 



Suits to collect fees should be avoided and only when the circumstances imperatively require should a lawyer resort to lawsuit to enforce payment of fees. This is but a logical consequence of the legal profession not primarily being for economic compensation. Lawyers should avoid the appearance of fulfilling duty merely for the compensation. Take note of Rule 138, Secs 24, 32 above

 Corpus v. CA (2001) F: Atty David and Corpuz were good friends. In Corpuz’s civil case, David became his counsel. Prior to rendering of final judgment, Corpuz gave the lawyer a check which the latter returned. After favorable decision was rendered, Atty David demanded attorney’s fee which Corpuz refused to deliver alleging that David’s services were offered gratuitously. The Court decided that Atty. David should be paid attorney’s fee H: An attorney client relationship can be created by implied agreement, as when the attorney actually rendered legal services for a person who is a close friend. The obligation of such a person to pay attorney’s fees is based on the law of contracts’ concept of facio ut des (no one shall unjustly enrich himself at the expense of others.) Absence of an express contract for attorney’s fees between respondent David and petitioner Corpus is no argument against the payment of attorney’s fees, considering their close relationship which signifies mutual trust and confidence between them. ETCETERA NOTES. (Agpalo) Remedies in estate proceedings

Court jurisdiction  Court having jurisdiction to try main action in which lawyer rendered services also has jurisdiction to pass upon the question of fees even though the total sum thereof is less than the jurisdictional amount cognizable by the court and continues to have jurisdiction until the proceeds of the judgment shall have been delivered to the client. 

If court has no jurisdiction or has lost it, court can have no power to award and fix attorney’s fees. Lawyer may, 87

SIGMA LEGIS COPY

received by lawyer from opposite party or third persons in the service of his client belongs to the client except when the latter has full knowledge and approval of lawyer’s taking.

LEGAL PROFESSION & ETHICS however, enforce claim in separate civil action subject to same jurisdictional req as any other ordinary civil suit. But if client not only fails to object to exercise by court of jurisdiction to entertain an action for recovery of atty’s fees but also asks for some affirmative reliefs, he may be estopped, on appeal, to assail the propriety of action taken by trial court in fixing and allowing counsel fees

Application of client’s funds  Lawyer who has in his possession funds of the client may not apply them to pay his fees without client’s consent, express or implied. 

Necessity of hearing  Petition for recovery of atty’s fees has to be prosecuted and allegations established. 

Persons entitled to or must pay atty’s fees have the right to be heard upon question of their propriety or amount.



Who may have right to intervene and be heard: lawyer himself, client, client’s assignee of the interest in litigation, stockholders in a derivative suit concerning atty’s fees sought to be charged against corporate funds, and administrator, executor, heir and creditor in an estate proceedings.



Burden of proof is upon lawyer to establish his allegations.



Trial court who awards smaller fee than that sought without allowing lawyer to adduce evidence commits a reversible error correctable by certiorari.



Where there is written agreement for atty’s fees, no other piece of evidence is necessary to prove amount. Opinions of lawyers as expert witnesses are not binding upon court but may be taken into account along with professional knowledge and various factors affecting compensation.



Court cannot authorize payment until all parties are given opportunity to be heard. In the absence of evidence, court is presumed to have granted award for counsel fees only after it has heard all parties involved.



Court may not order immediate payment where question as to propriety or amount is pending resolution by appellate court.

Defenses  Usual defenses apply: res judicata, want of jurisdiction, prescription of action, nullity of contract, negligence in discharge of lawyer’s

If client refuses to give consent, lawyer should secure court order for the allowance of fees with notice to client to give client opportunity to be heard. After securing award, he may lawfully apply client’s funds in his possession for payment of his fees as fixed by court.

Execution  Final award of atty’s fees may be enforced by execution. Award may be enforced against any property of client, including proceeds from judgment secured for client in the main action. Attorney’s Fees as Damages Two concepts of attorney’s fees compared  Indemnification: given by court to winning litigant in the form of damages. It may be decreed in favor of party, not his lawyer, in any of the instances authorized by law. 

Compensation: atty’s fee paid by client to his counsel.



Liability of losing party for atty’s fees (indemnification) awarded to winning party not bound by or dependent upon fee arrangement of winning party with his lawyer but court may take that fee arrangement into account as an element of damages.



Fee as item of damages belongs to client, not to his lawyer. But client and lawyer may agree that whatever may be awarded by court as atty’s fees will go directly to lawyer, in which case, losing party shall pay directly to lawyer of prevailing party.



Similarities: both require, as a prerequisite to grant, the intervention of or rendition of professional services by lawyer, both fees subject to judicial control and modification, and rules governing determination of their reasonable amount applicable to both.

Fee as damages not recoverable—general rule  General rule: atty’s fees as damanges not recoverable because it is not the fact of winning that ipso facto justifies the award but the attendance of any of the special circumstances and, in case of public litigant, the existence of the right to private counsel. 

Public policy requires that no penalty be placed on the right to litigate, even if done erroneously. Otherwise, it will 88

SIGMA LEGIS COPY



duties, lack of atty-client relationship, payment or unconscionableness of amount claimed.

LEGAL PROFESSION & ETHICS put a premium on right to redress grievances and tempt a party and his counsel to swell the fees to undue proportion and discourage out-of-court settlement.

There should be factual, legal or equitable justification which appears on record. 13. When a special law so authorizes Purpose: to lessen unnecessary litigation

Fees as damages recoverable—exception to the rule  New Civil Code provides 13 exceptions to the rule: 1. When there is agreement Court may reduce if fee unreasonable or unconscionable. 2. When exemplary damages are awarded Exemplary damages awarded by way of example. 3. When defendant’s action or omission compelled plaintiff to litigate Act or omission of other party must be in gross bad faith. Both plaintiff (in his complaint) or defendant (in his counterclaim) entitled to award. 4. In criminal cases of malicious prosecution Show that (1) he was acquitted and (2) person who charged him knowingly made a false statement of facts or that filing was prompted by sinister design to vex him. 5. When action is clearly unfounded Action or proceeding must be so untenable as to amount to gross and evident bad faith depending on circumstances of case; good faith a defense. 6. When defendant acted in gross and evident bad faith Refusal to pay valid claim must be made in gross and evident bad faith. 7. In actions for support Person obliged to give support is also obliged to pay attorney’s fees as may be necessary to enable person entitled to such support to enforce his rights. 8. In cases of recovery of wages Covers household helpers, laborers and skilled workers 9. In actions for indemnity under workmen’s compensation and employee’s liability laws 10. In a separate civil action arising from a crime Party entitled to recover damages arising from a crime can only do so in a separate civil action or in a civil suit to enforce subsidiary civil liability. 11. When at least double costs are awarded Usually awarded in frivolous action or appeal—one which presents no justiciable question or is so readily recognizable as devoid of merit on its face. 12. When the court deems it just and equitable

Right to private counsel a precondition  Two reqs to recover atty’s fees as an item of damages: (1) case falls under any of the exceptions and (2) he must have employed and, in the case of public litigant, must show his right to employ a private counsel. Award of attorney’s fees discretionary  Exercise of discretion by court on awarding of atty’s fees as damages must be based on facts appearing on the text of decision. Decision’s body, not just the disposition, must state reason for award, unless text shows case comes within one of the exceptions. 

In the absence of showing that trial court abused discretion, grant or denial of atty’s fees may not be disturbed on appeal. Appellate court may, in the exercise of its discretion, award atty’s fees or increase or reduce amount whenever law and circumstances warrant.



But with claim for atty’s fees having been set up, appellate court may grant such fees even if party did not appeal from lower court’s decision denying such award.



Claim for atty’s fees must not only be alleged, factual basis and amount must also be proved. That grant is discretionary does not dispense with need for proof even if party against whom it is asserted does not deny claim. Exception: when what is sought is in the nature of liquidated damages fixed in a valid written agreement.



Amount must be proved and specificall prayed for, not just in “such other relief and remedy as the court court may deem just and equitable.”



Since award of atty’s fees is the exception, not the rule, trial court should make findings of fact and law to bring case within the exception and justify the award.

CANON 21 PRESERVE CLIENT’S CONFIDENCE  Canon 21. A lawyer shall preserve the confidence and secrets of his client even after the attorneyclient relationship is terminated. 89

SIGMA LEGIS COPY

Pleading and practice  Trial and appellate court will not grant atty’s fees if claim of atty’s fees in the concept of damages and the grounds relied upon are not pleaded.

LEGAL PROFESSION & ETHICS

Rule 21.02. A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto. Rule 21.03. A lawyer shall not, without the written consent of his client, give information from his files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or any similar purpose. Rule 21.04. A lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client.

 Art. 209 Revised Penal Code. Betrayal of trust by an attorney or solicitor—Revelation of secrets.—In addition to the proper administrative action, the penalty of prision correccional in its minimum period, or a fine ranging from 200 to 1,000 pesos, or both, shall be imposed upon any attorney-at-law or solicitor ( procurador judicial) who, by any malicious breach of professional duty or of inexcusable negligence or ignorance, shall prejudice his client, or reveal any of the secrets of the latter learned by him in his professional capacity. The same penalty shall be imposed upon an attorney-at-law or solicitor (procurador judicial) who, having undertaken the defense of a client or having received confidential information from said client in a case, shall undertake the defense of the opposing party in the same case, without the consent of his first client. NOTES (Agpalo) 

Neither attorney nor client nor anyone who stands in a peculiar relation of confidence with either of them can be compelled to disclose any privileged communication.



The lawyer’s duty to maintain inviolate his client’s confidence is perpetual. It outlasts even the lawyer’s employment. He may not do anything which will injuriously affect his former client nor may he at any time disclose or use against him any knowledge or information acquired by virtue of professional relationship.



This duty exists because unless the client knows that his attorney cannot be compelled to reveal what is told to him, he will suppress what he thinks to be unfavorable and the advice which follows will be useless if not misleading.



This canon also applies to prospective clients. Formerly, in order that a communication shall be privileged, the attorney-client relationship should exist at the time of communication. But at present, communication made by prospective client is covered for as long as it is made to the lawyer in his professional capacity.



Exists where legal advice is sought in a lawyer’s professional capacity with respect to communications relating to that purpose. This is called :evidentiary privilege.”

Rule 21.05. A lawyer shall adopt such measures as may be required to prevent those whose services are utilized by him, from disclosing or using confidences or secrets of the client. Rule 21.06. A lawyer shall avoid indiscreet conversation about a client’s affairs even with members of his family. Rule 21.07. A lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interests.  Rule 138, 20(e). Duties of attorneys.—It is the duty of an attorney: (e) To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client's business except from him or with his knowledge and approval;  Rule 130, sec. 21(b). Privileged communication. —An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment; nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity.

Confidentiality  A confidential communication refers to information transmitted by voluntary act of disclosure between attorney and client in confidence and by means which so far as the client is aware, discloses the information to no third person other than one reasonably necessary for the transmission of the information or the accomplishment of 90

SIGMA LEGIS COPY

Rule 21.01. A lawyer shall not reveal the confidence or secrets of his client except: a. When authorized by the client after acquainting him of the consequences of the disclosure; b. When required by law; c. When necessary to collect his fees or to defend himself, his employees or associates or by judicial action.

LEGAL PROFESSION & ETHICS





There is a difference between confidences and secrets of clients. While confidences refer to information protected by attorney-client privilege under the Revised Rules of Court (information pertinent to the case being handled), secrets are those other information gained in the professional relationship that the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to client (information not exactly pertinent to case). The intent of client to make communication confidential must be apparent. But once conveyed to lawyer, confidentiality attaches not only to statements but also to other forms of communication.

Requisites for Privilege Communication to Attach  if person to whom information is given is a lawyer 

there is legal relationship existing (may be disregarded for prospective clients



legal advice must be sought from the attorney in his professional capacity



Some privileged communication may lose privileged character (eg client gave it to 3rd person). Client must intend the communication be confidential.



Question of privilege determined by court. The burden of proof: party who asserts privilege



Applies to attorneys, no attorney-client relation when person is not a lawyer, unless pretending to be a lawyer



Not privileged if advice is not within lawyer’s professional capacity

Persons Entitled to claim Privilege  The privilege is intended primarily to protect client and incidentally in consideration for oath and honor of attorney. Hence, the work product of the lawyer, including his effort and researches, contained in his files is confidential even after his death. Contents of lawyer’s files may not be disclosed without a client’s consent.



Generally, the attorney-client privilege covers the lawyer, client and third persons who by reason of their work have acquired information about the case being handled. This includes the following: (1) attorney’s secretary, stenographer and clerk; (2) interpreter, messengers, or agents transmitting communication (3) an accountant, scientist, physician, engineer who has been hired for effective consultation.



Assignee may claim the privilege



Identification of client privilege extends when the ff are not present: (1) commencement of litigation on behalf of the client, (2) identification relating to employment of 3rd person, (3) employment of attorney with respect to future criminal/ fraudulent transaction, (4) prosecution of a lawyer for a criminal offense 

This rule does not cover those kept for custodial purposes only nor contracts relating to attorney’s fees

 Genato v. Silapan (2003) F: Atty. Silapan and Genato had a attorney-client relationship. Genato filed charges against Silapan due to the latter’s failure to pay amortization fees. Silapan alleged in his answer that Genato is a businessman in real estate business, who traded and buys and sells deficiency taxed imported cars, provides shark loan and engages in other shady deals. He also alleged that Genato has many pending cases and had attempted to bribe officials to lift the case. The SC held that Silapan had violated confidentiality of lawyer-client relationship relationship. Held: “Canon 17 of the Code of Professional Responsibility provides that a lawyer owes fidelity to the cause of his client and shall be mindful of the trust and confidence reposed on him. The rule is that an attorney is not permitted to disclose communications made to him in his professional character by a client, unless the latter consents. This obligation to preserve the confidences and secrets of a client arises at the inception of their relationship. The protection given to the client is perpetual and does not cease with the termination of the litigation nor is it affected by the party’s ceasing to employ the attorney and retaining another, or by any other change of relation between them. It even survives the death of the client. “It must be stressed, however, that the privilege against disclosure of confidential communications or information is limited only to communications which are legitimately and properly within the scope of a lawful employment of a lawyer. It does not extend to those made in contemplation of a crime or perpetration of a fraud. It is not within the profession of a lawyer to advise a client as to how he may commit a crime. Thus, the attorney-client privilege does not attach, there being no professional employment in the strict sense. 91

SIGMA LEGIS COPY

the purpose for which it was given. Covers all actions, signs, means of communication

LEGAL PROFESSION & ETHICS

 Hilado v. David (1949) F: Prior to Atty Francisco’s rendering of legal service to Assad, Hilado consulted the same lawyer and even presented him with documents about case against Assad. Hilado and her counsel want Francisco disqualified as counsel for Assad. The SC found that an attorneyclient relationship existed between Hilado and Francisco and that the latter had violated the confidence of client. H: To constitute professional employment it is not essential that the client should have employed the attorney professionally on any previous occasion. If a person, in respect to his business affairs or troubles of any kind, consults with his attorney in his professional capacity with the view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces in such consultation, then the professional employment must be regarded as established. Information so received is sacred to the employment to which it pertains, and to permit to be used in the interest of another, or, worse still, in the interest of the adverse party, is to strike at the element of confidence which lies at the basis of, and affords the essential security in, the relation of attorney and client. “Communications between atty. and client are, in a great number of litigations, a complicated affair, consisting of entangled relevant and irrelevant, secret and well known facts. In the complexity of what is said in the course of the dealings between an atty. and a client, inquiry of the nature suggested would lead to the revelation, in advance of the trial, of other matters that might only further prejudice the complainant's cause. Litigants would then be wary in going to an atty. Abstinence from seeking legal advice in a good cause is by hypothesis an evil which is fatal to the administration of justice. “Rationale behind this prohibition: not only to prevent the dishonest practitioner from fraudulent

conduct, but alsol to protect the honest lawyer from unfounded suspicion of unprofessional practice. It is founded on principles of public policy, on good taste. The question is not necessarily one of the rights of the parties, but as to whether the attorney has adhered to proper professional standard. “Wihout impugning Atty. Francisco’s good faith, SC cannot allow taking cause of adversary of the party who had sought and obtained legal advice from his firm not necessarily to prevent any injustice to the plaintiff but to keep above reproach the honor and integrity of the courts and of the bar.” RULE 21.01 WHEN REVELATIONS OF CONFIDENCE AND SECRETS ALLOWED  Rule 21.01. A lawyer shall not reveal the confidence or secrets of his client except: a. When authorized by the client after acquainting him of the consequences of the disclosure; b. When required by law; c. When necessary to collect his fees or to defend himself, his employees or associates or by judicial action. NOTES (Agpalo) 

A lawyer becomes familiar with all the facts connected with his client’s case. Such knowledge must be considered sacred and must be guarded with care to ensure the confidence of the client is not abused. Only when client consents will a lawyer be allowed to make use of said information. Use of said information, whether privileged or not, is prohibited if it is to the: a) disadvantage of the client; b) lawyer’s advantage; c) advantage of third persons.



A lawyer may not disclose any information concerning the client’s case, which he acquired from the client in confidence, other than what may be necessary to prosecute or defend his client’s cause.



In fact, loyalty to the court may not override this privilege as said loyalty involves steadfast maintenance of principles which the courts themselves have evolved for the effective administration of justice; one of these principles is that of preservation of client’s confidence communicated to lawyer in his professional capacity. Breach of this fidelity is sufficient to warrant disciplinary sanction against the lawyer.



If a lawyer manages to acquire info regarding the opposing party’s cause, he must withdraw



If obtained by 3rd person  counsel must not call (question of impropriety) 92

SIGMA LEGIS COPY

“Nevertheless, respondent’s explanation that it was necessary for him to make the disclosures in his pleading fails to satisfy the Court. The disclosures were not indispensable to protect his rights, as they were not pertinent to the foreclosure case. It was improper for the respondent to use it against the complainant in the foreclosure case as it was not the subject matter of litigation therein and respondent’s professional competence and legal advice were not being attacked in said case.”

LEGAL PROFESSION & ETHICS Client may not make communications to opposing counsel to silence him (such communication is not privileged)



If corporate client, secret of 1 corporate officer may be disclosed to directors but not to others



Involves a balancing of loyalties (eg client committed perjury, should lawyer disclose?)

Exceptions to the General Rule  There are however instances when lawyer may disclose client’s secrets. These exceptions to the general rule are found in Rule 21.01. 







A lawyer may disclose commission of contemplated crimes or perpetuation of fraud considering that professional relationship should only be for lawful purposes. A person who is committing a crime or is about to commit a crime can have no privileged witness. For the application of the privilege to attach, the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. A waiver of the privilege must be made in entirety. A client may waive protection of privilege through lawyer except where the controversy involves the attorney’s relation with his client. In such case, only the client may waive privilege. However, in case client files complaint against his lawyer or unreasonably refuses to pay his fees, client waives privilege in favor of lawyer who may disclose so much of client’s confidences as may be necessary to protect himself or to collect fees. It must be noted that a client may not be permitted to take advantage of the attorneyclient relation to defeat the just claim of his lawyer. Consent given by client to lawyer’s secretary (staff/employees) will not give him/her the right to reveal confidences. Lawyer’s consent is necessary.

RULE 21.02 WHEN USE OF INFORMATION RECEIVED IN COURSE OF EMPLOYMENT IS ALLOWED

 Rule 21.02. A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto. RULE 21.03 PROHIBITION TO GIVING OF INFORMATION TO OUTSIDE AGENCY  Rule 21.03. A lawyer shall not, without the written consent of his client, give information from his files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or any similar purpose. NOTES (Agpalo) 



The reason for the rule is that the work and product of a lawyer, such as his effort, research, and thought, and the records of his client, contained in his files are privileged matters. Neither the lawyer nor, after his death, his heir, or legal representative may properly disclose the contents of such file cabinet without client’s consent

RULE 21.04 AND 21.05 PROTECTION FROM DISCLOSURE  Rule 21.04. A lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client.  Rule 21.05. A lawyer shall adopt such measures as may be required to prevent those whose services are utilized by him, from disclosing or using confidences or secrets of the client. NOTES (Agpalo) 

Professional employment of a law firm is equivalent to retainer of the members thereof even though only one partner is consulted. When one partner tells another about the details of the case, it is not considered as disclosure to third persons because members of a law firm are considered as one entity.



The client’s secrets which clerical aids of lawyers learn of in the performance of their services are covered by privileged communication. It is the duty of lawyer to ensure that this is being followed. The prohibition against a lawyer from divulging the confidences and secrets of his clients will become futile exercise if his clerical aids are given liberty to do what is prohibited of the lawyer. (EX. Signing of 93

SIGMA LEGIS COPY



LEGAL PROFESSION & ETHICS

RULE 21.06 PROHIBITION OF INDISCREET COVERSATION  Rule 21.06. A lawyer shall avoid indiscreet conversation about a client’s affairs even with members of his family. NOTES (Agpalo) 

A lawyer must not only preserve the confidences and secrets of his clients in his law office but also outside including his home. He should avoid committing calculated indiscretion, that is, accidental revelation of secrets obtained in his professional employment. Reckless or imprudent disclosure of the affairs of his clients may jeopardize them. Not every member of the lawyer’s family has the proper orientation and training for keeping client’s confidences and secrets.

RULE 21.07 NOT TO REVEAL THAT LAWYER WAS CONSULTED  Rule 21.07. A lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interests.  Rule 15.01. 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 14.03. A lawyer may refuse to accept representation of an indigent client if: a) he is not in a position to carry out the work effectively or competently; b) he labors under a conflict of interests between him and the prospective client or between a present client and the prospective client. NOTES (Agpalo) 

This rule clarifies that privilege communication applies even to prospective clients. Moreover, the prohibition applies even if the prospective client did not thereafter actually engage the lawyer. By the consultation, the lawyer already learned of the secrets of prospective client. It is not fair if he will not be bound by the rule on privileged communication in respect of matters

disclosed to him by a prospective client. This rule, of course, is subject to exception of representation of conflicting interests. CANON 22 WITHDRAWAL OF SERVICES FOR GOOD CAUSE  Canon 22. A lawyer may withdraw his services only for good cause and upon notice appropriate in the circumstances. Rule 22.01. A lawyer may withdraw his services in any of the following case: a) When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling; b) When the client insists that the lawyer pursue conduct violative of these canons and rules; c) When his inability to work with co-counsel will not promote the best interest of the client; d) When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively; e) When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement; f) When the lawyer is elected or appointed to public office; and g) Other similar cases. Rule 22.02. A lawyer who withdraws or is discharged shall, subject to a retainer lien, immediately turn over all papers and property to which the client is entitled, and shall cooperate with his successor in the orderly transfer of the matter, including all information necessary for the proper handling of the matter. NOTES (Agpalo) Causes of Termination of Attorney-Client Relation 1. Withdrawal of the lawyer under Rule 22.01 2. Death of the lawyer 3. Death of cient 4. Discharge or dismissal of the lawyer by the client 5. Appointment or election of a lawyer to a government position which prohibits private practice of law 6. Full termination of the case 7. Disbarment or suspension of the lawyer from the practice of law 8. Intervening incapacity or incompetence of the client during pendency of case 9. Declaration of presumptive death of lawyer 10. Conviction of a crime and imprisonment of lawyer Note: Except for items 2 and 6, the lawyer has duty to notify the court in case of termination of attorney-client relationship. 94

SIGMA LEGIS COPY

confidentiality contract)

LEGAL PROFESSION & ETHICS



The death of the administrator or executor of estate does not terminate the relation as the true client in such a situation is the estate and not the estate’s legal representative.



Lawyer should inform court promptly about death, incapacity or incompetency of client and to give name and residence of his executor, administrator, guardian or other legal rep.



“party” refers to natural and not juridical persons. Ex. death of a partner does not terminate atty-client relationship but legal dissolution of corporate client or its insolvency and the appointment of a receiver may bring about that result

Death of Attorney  A contract for legal services being personal, it terminates upon death of the lawyer. However, if the lawyer is a member of a law firm, which firm appears as counsel for the client, the death of the attending lawyer will not terminate the relation. The firm will continue to appear as counsel for client unless there has been agreement that services were to be rendered only by the said attorney. Who may Terminate Attorney-Client Relation 1. Client Client has absolute right to discharge his attorney with or without just cause or even against lawyer’s consent. Existence or non-existence of a just cause is important only in determining right of an attorney to compensation for services rendered. Discharge of an attorney or his substitution by another without justifiable cause will not operate to extinguish the lawyer’s right to full payment of compensation as agreed upon in writing. 2. Attorney 3. Court 4. Circumstances beyond control of parties Limitations on client’s right  Lawyer has right to full payment of compensation agreed in writing if dismissal or substitution is without justifiable cause.



Lawyer may, in the discretion of court, intervene in the case to protect his right to fees.



Right to discharge counsel not allowed if intended to extend time to file pleading or to indefinitely avoid trial.



If client has transferred whole of his interests in the litigation pendente lite and case is continued by him without the transferee being substituted in his place, he may not, without consent of transferee, dismiss his attorney.



If lawyer acquired from client interest in the subject matter of litigation before he became involved, he can in his own right and independently of the client’s right intervene as party litigant to protect his interests. If attorney acquired such interest from client during pendency of litigation, transaction is not only null and void (contrary to law) but may subject lawyer to disciplinary action for acquiring that interest.

Necessity of notice of discharge  No need for formal notice of discharge as between client and attorney as any act indicating an unmistakable purpose to terminate relation is sufficient. 

Not implied revocation of authority: if another attorney appears without stating that services of prior counsel has been dispensed with by client or in pleading by new counsel, client condemned conduct of original counsel



Notice necessary and a copy must be served as to court and adverse party.



If client has not filed notice of discharge, lawyer should file notice of withdrawal with client’s conformity or application to retire from case.

Effect of discharge of attorney  Discharge of attorney must be made known to the court and adverse party through a formal notice. This is unnecessary between the lawyer and client, himself. But insofar as the court and other party are concerned, the severance of the relation of attorney and client is not effective until a notice of discharge by the client or a manifestation clearly indicating that purpose is filed with the court and a copy thereof served upon the adverse party. 

Before discharge is recorded in the court, the lawyer’s power is limited to (1) making that fact known to court and to adverse party, and to (2) preserving and protecting client’s interest until final discharge or new counsel enters appearance. He cannot pretend to continue representing client. 95

SIGMA LEGIS COPY

Death or Incapacity of the Client  Upon the death of the client, the attorney-client relation terminates as the relationship is personal. This relation also concludes upon incapacity of a client during pendency of the litigation, the reason being that the client loses legal capacity to contract.

LEGAL PROFESSION & ETHICS



If attorney reappears to file pleading, it is presumed that he has been reemployed. Exception: to prevent failure or miscarriage of justice

Acceptance of incompatible office  Lawyer who accepts public office ceases, by operation of law, to engage in private practice and becomes disqualified from continuing to represent a client in those cases which the law prohibits him from doing so or requires his entire time to be at the disposal of the government. His qualification to public office terminates attorneyclient relationship. 

Court however does not take judicial notice. Without a withdrawal or manifestation, court may regard him as counsel of record upon whom written notice may be served which will bind the client.

 Obando v. Figueras (2000) F: Eduardo’s counsel, Atty. Yuseco filed a Motion to Dismiss against Obando’s petition to nullify sale of a land. This motion was granted. Obando now alleges that trial court should not have acted on the motion filed by Atty. Yuseco because he no longer represented Eduardo, et al. The Court held that the trial court could act on the motion filed by Atty. Yuseco. H: Representation continues until the court dispenses with the services of counsel in accordance with Section 26, Rule 138 of the Rules of Court. Counsel may be validly substituted only if the following requisites are complied with: (1) New counsel files a written application for substitution; (2) The client’s written consent is obtained; (3) The written consent of the lawyer to be substituted is secured, if it can still be; if the written consent can no longer be obtained, the application for substitution must carry proof that notice of the motion has been served on the attorney to be substituted in the manner required by the Rules. Court is convinced that Eduardo did not dismiss Atty. Yuseco. In fact, Eduardo manifested that he had been tricked by Petitioner Obando into signing the aforesaid Compromise Agreement. In any case, at the discretion of the court, an attorney who has already been dismissed by the client is allowed to intervene in a case in order to protect the client’s rights. In the present case, had there been any irregularity, it should have been raised by Eduardo, not by Obando. Eduardo had no reason to complain, the Motion to Dismiss was not prejudicial but beneficial to him.

 F:

Laput v. Remotigue (1962) supra at Rule 8.01

H: The solicitor general found that before respondents filed their appearance, the client had already filed with the court a pleading discharging the complainant. The fact that complainant was not able to get a copy was not the fault of respondents. Also, it was found that Mrs. Barrera dismissed complainant as lawyer because she no longer trusted him because she found out that some checks were sent to the complainant instead of her and that several withdrawals were made by complainant in her account without her permission. There is no irregularity in the appearance of respondents as counsel. Complainants’ withdrawal and his filing of a motion for the payment of his attorney’s fees estop him from now complaining that the appearance of respondent Patlinghug is unprofessional. As for the respondents, they only entered their appearance after Mrs. Barrera had dispensed of the complainant’s services and after the petitioner had voluntarily withdrawn. RULE 22.01 GOOD CAUSES FOR WITHDRAWAL OF SERVICES

 Rule 22.01. A lawyer may withdraw his services in any of the following case: a) When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling; b) When the client insists that the lawyer pursue conduct violative of these canons and rules; c) When his inability to work with co-counsel will not promote the best interest of the client; d) When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively; e) When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement; f) When the lawyer is elected or appointed to public office; and g) Other similar cases. NOTES (Agpalo) 

Lawyer cannot just withdraw from case since he has impliedly stipulated that he will prosecute case to conclusion and he owes the duty to assist in administering justice as an officer of the court.



Lawyer may retire from action with written consent of client filed in court and a copy served to adverse party. Such withdrawal does not require approval of court to take 96

SIGMA LEGIS COPY



LEGAL PROFESSION & ETHICS



Lawyer may retire from case without client’s consent if court, on notice to the client and the attorney and on hearing, determines that he ought to be allowed to retire on good cause.



The grounds for withdrawal without client’s consent are enumerated in Rule 22.01.

Grounds for withdrawal without client’s consent  Other similar instances include: conflict of interests; when lawyer finds it impracticable or difficult to perform duties due to client’s actions; ethical proscription against lawyer acting as witness and advocate at the same time. 



Lawyer should not presume petition for withdrawal will be granted. He must still appear on date of hearing since attorney-client relationship does not terminate formally until there is a withdraw of record. In criminal case, counsel for accused should not ask to be relieved on mere trivial ground. Nor may he retire from action because accused has confessed to him his guilt. Lawyer’s right and duty to extend the best legal assistance to an accused demand that he continue representing him irrespective of his personal opinion as to his client’s guilt.

Procedure for withdrawal  If without written consent from client, lawyer should file petition for withdrawal in court and he must serve copy of his petition upon his client and the adverse party at least 3 days before date set for hearing. He should also give time to client to secure services from another lawyer in the case from which he is withdrawing. 



Ordinarily, court will not relieve lawyer without notice to client, except under peculiar circumstances.

1) client discharges attorney with or without cause: no consent or notice to lawyer needed, nor court approval 2) attorney may initiate move by withdrawing his appearance with written consent of client or with leave of court on some justifiable ground 3) substitution of counsel in the form of application for that purpose: constitutes an appearance of the substituting counsel and is a polite way of effecting change; compliance with formalities is necessary since it involves ethical considerations Requirements for substitution 1) written application for substitution 2) written consent of client 3) written consent of attorney to be substituted * in case written consent of attorney cannot be secured, proof of service of notice of application upon attorney to be substituted. ** in case of death of original attorney, additional requirement of verified proof of death necessary 

usually initiated by substituting counsel hence the need to obtain conformity of original lawyer or at least notice to original lawyer of substitution



consent of original lawyer or notice requirement is designed to afford the lawyer the opportunity to protect his right to attorney’s fees. If he gives consent, it is presumed he has settled that question. If not, he can ask in same action that his chance to have his right to attorney’s fees be preserved and protected.

Effects of Defective Substitution  A defective substitution is one which lacks any of the requisites for a valid substitution. 

Employment of additional counsel  Client has right to as many lawyers as he can afford. Client’s proffer of assistance of additional counsel should not be regarded as evidence of want of confidence. 

Professional courtesy requires that a lawyer retained as collaborating counsel should at least communicate with counsel of record before entering his appearance and should decline association if objectionable to original counsel.



But if first lawyer is relieved by client, another lawyer may come into the case.

Any notice served upon lawyer is notice to and is binding upon client.

Change or Substitution of Counsel

It does not effect a change of counsel; nor constitute an appearance of new lawyer, both of whom shall be deemed counsel of record; pleadings filed by the new lawyer deemed effective.

Change of counsel 

Montano v. IBP (2001) 97

SIGMA LEGIS COPY

effect especially if new counsel has entered appearance. If there’s no new counsel yet, court may require lawyer’s withdrawal be held in abeyance until appearance of new counsel.

LEGAL PROFESSION & ETHICS

H: A lawyer shall withdraw his services only for good cause and upon notice appropriate in the circumstances; a lawyer shall avoid controversies with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice or fraud. Atty. Dealca’s withdrawal was unjustified as complaint did not deliberately fail to pay him the attorney’s fees. In fact, complainant exerted honest efforts to fulfill his obligation. Respondent’s contemptuous conduct does not speak well of a member of the bar considering that the amount owing to him was only P3,500.00.  Domingo v. Aquino (1971) F: Atty. Unson, the estate’s counsel, denied having received notice and copy of CFI judgment rendering a favorable decision to Aquino’s money claim. The estate’s new administrator wants to file motion for reconsideration and prays that copy of CFI decision be given to her counsel and not to Atty. Unson, former special administrator’s counsel. The court held that Atty. Unson was the estate’s counsel and that notice of judgment had been duly served. H: Party in the subject case was the intestate estate of the deceased Luis C. Domingo, Sr. and that Atty. Unson represented the estate as counsel in the said case. The fact that Luis Domingo Jr was administrator when legal services of Unson was availed of does not make Unson the counsel for Luis Domingo Jr. Thus, notwithstanding Luis’ removal as administrator, Atty. Unson continued to represent the estate as counsel in the appellate court. He continued to be authorized to represent the estate as its counsel, until the new administrator should terminate his services which she never did. The court was never informed of change in counsel or party-administrator. RULE 22.02 DUTIES OF A LAWYER WHO WITHDRAWS  Rule 22.02. A lawyer who withdraws or is discharged shall, subject to a retainer lien, immediately turn over all papers and property to which the client is entitled, and shall cooperate with his successor in the orderly transfer of the matter,

including all information necessary for the proper handling of the matter.  Rule 16.03. A lawyer shall deliver the funds and property to his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court. NOTES (Agpalo) Duties of a Discharged Lawyer or One who Withdraws 1. Immediately turn over all papers and property to which the client is entitled and cooperate with successor in the orderly transfer of the matter, including all information necessary for the proper handling of the matter. 2. cooperate with the succeeding lawyer in orderly transfer of case Lawyer’s withdrawal or discharge shall be without prejudice to his attorney’s lien  Purpose of Rule 22.02 (lawyer entitled to retaining lien) and Rule 16.03 (lawyer entitled to retaining and charging lien) is to insure payment of lawyer’s professional fees and the reimbursement of his lawful disbursements in keeping with his dignity as an officer of the court. Kinds of Liens 1. Retaining Lien (general lien) 2. Charging Lien (special lien) Retaining Lien Nature Passive lien. It cannot be actively enforced. It is a general lien. Basis Lawful possession of funds, papers, documents, property belonging to client Coverage Covers only funds, papers, documents, and property in the lawful possession of the attorney by reason of his professional employment Effectivity As soon as the lawyer gets possession of the

Charging Lien Active lien. It can be enforced by execution. It is a special lien. Securing of a favorable money judgment for client

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

SIGMA LEGIS COPY

F: Atty. Dealca and Montano agreed that 50% attorney’s fees shall be paid upon case acceptance and the other half upon its termination. Despite agreement, Atty. Dealca asked for payment of balance during the course of case. Upon failure to give balance of P3,500, Dealca withdrew appearance as counsel. The Court found that Dealca had not withdrawn for good cause.

As soon as the claim for attorney’s fees had 98

LEGAL PROFESSION & ETHICS been entered into the records of the case Client and adverse party need to notified to make it effective

Generally, it is exercisable only when the attorney had already secured a favorable judgment for his client * Sourced from Pineda’s Annotations.

Presence of all requirements makes counsel’s right to retain funds and muniments of title of the client in his possession until payment of his fees incontestable. Attorney cannot be compelled to surrender them without proof of payment or, in appropriate cases, without requiring that client put up an adequate security for their satisfaction. Property to which lien attaches  All property, papers, books, documents or securities of the client that lawfully come to the lawyer professionally or in the course of his professional employment, not necessarily in connection with a particular case but any case or matter handled for the client 

Client’s money which comes into his possession by way of a writ of execution ordered by the court or funds collected by the attorney for his client in the course of his employment, whether or not upon a judgment or award.



Element constitutive of retaining lien: that funds, documents and papers of client come into lawyer’s possession in his professional capacity (as a lawyer)



Does not attach to: funds, documents and papers which come into lawyer’s possession in some other capacity; funds, documents and papers of client’s principal; subject matter of the action which court adjudged in favor of client’s adversary; documents introduced as exhibits in court

Retaining Lien 

A retaining lien is the right of an attorney to retain the funds, documents and papers of his client which have lawfully come into his possession until his lawful fees and disbursements have been paid and to apply such funds to the satisfaction thereof.



It is a general lien for the balance of the account due to the attorney from client for services rendered in all matters he may have handled for the client, regardless of outcome.



It is dependent upon and takes effect from time of lawful possession and does not require notice thereof upon client and the adverse party to be effective.





Passive right and cannot be actively enforced; amounts to a mere right to retain funds, documents and papers as against the client until the attorney is fully paid his fees. However, lawyer may apply so much of client’s funds in his possession to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. Reason and essence of lien: inconvenience or disadvantage caused to the client because of exercise of such lien may induce client to pay the lawyer his fees and disbursements.

Requisites for validity (of retaining lien) 1. attorney-client relationship 2. lawful possession by lawyer of the client’s funds, documents and papers in his professional capacity 3. unsatisfied claim for attorney’s fees or disbursements

When lien attaches  Retaining lien attaches from the moment the attorney lawfully obtains and retains possession of the funds, documents and papers of the client and does not depend on notice being entered in the record of the case and copy served on adverse party. 

That client transfers property evidenced or covered by the document or title in the lawful possession of the client’s attorney does not defeat the retaining lien. Lawyer’s position is similar to that of creditor who holds lien over the property and the client-debtor must discharge the lien before he can dispose of the property to third persons.



Retaining lien not affected by existence of dispute as to the amount of attorney’s fees.

Bond for return of documents  General rule: attorney retaining lien unconstestable once it has lawfully attached to funds, documents and papers of the client, hence, court may not compel lawyer to surrender such without prior proof of satisfaction of fees 

Exception: court may require surrender of such funds, documents and papers but only after client posts adequate bond or security to guarantee payment of lawyer’s fees. 99

SIGMA LEGIS COPY

funds, papers, documents, property Notice Client need not be notified to make it effective Applicability May be exercised before judgment or execution, or irregardless thereof

LEGAL PROFESSION & ETHICS Otherwise: grave abuse of discretion or authority because it is court’s duty to protect, not destroy, attorney’s lien



If such were improperly or illegally taken from custody of attorney, his lien is not lost unless by his act or omission he waives his right. Mandamus will lie to restore possession.

Satisfaction of lien  If client does not dispute claim and amount for atty’s fees: lawyer need not file action to enforce retaining lien; he may lawfully apply client’s funds in satisfaction of his claim for atty’s fees; he only needs to send client accounting and remitting the balance, if any, to the client. 

If client questions right and amount to atty’s fees: lawyer should file necessary action or motion to fix the amount of fees and can apply client’s fund to pay his fees only after final adjudication of such action. Otherwise, he may be liable for misappropriation of funds.

Charging Lien 



A charging lien is a right which the attorney has upon all judgments for the payment of money and executions issued in pursuance thereof, secured in favor of his client. Covers only services rendered by attorney in the action in which the judgment was obtained and takes effect only after a statement of claim has been entered upon record of the particular action with written notice to his client and adverse party. A charging lien is a special lien in a particular case and presupposes favorable judgment secured for the client in that particular case. Gives attorney who secured or contributed some effort to secure favorable judgment same right and power as his client over such judgments and executions to enforce lien and secure payment of fees and disbursements.

Nature and essence of charging lien  A charging lien is an abstract but potential right made active and operative by recording a statement of claim in the case and serving notice thereof upon the client and the adverse party. It



It does not depend upon possession of judgment recovered nor is it of a nature which attaches to the property in litigation. It is at most a personal claim enforceable by a writ of execution.



It is limited only to money judgments and presupposes that attorney secured favorable money judgment for his client.



[drama] It is a device invented by law for the protection of attorneys against the knaveries of their clients by disabling them from receiving the fruits of recoveries without paying for the valuable services by which the recoveries were obtained.

Requisites for validity of charging lien 1. attorney-client relationship 2. attorney has rendered services 3. money judgment favorable to the client has been secured in the action 4. attorney has a claim for attorney’s fees or advances 5. statement of his claim has been duly recorded in the case with notice thereof served upon the client and adverse party  Lawyer asserting claim need not be the one that concluded the action; it is enough that he has rendered some services at any stage of the proceeding. 

That the amount of attorney lien is unliquidated does not militate against its establishment as it is not necessary to the existence of the lien that the amount due the lawyer be fixed.

Recordal and notice of charging lien  Attorney’s charging lien takes effect from and after the time the attorney has caused a notice of his lien to be duly entered in the records of the case. For the recordal to be valid, it should be made while the court still has jurisdiction over case and before full satisfaction of judgment. Recordal may be entered before judgment is made but it could only be enforced after a judgment is rendered. Lawyer may record his claim before rendition of judgment (to establish his right to lien), as opposed to enforcement which takes place only after a judgment is secured in favor of client. 

A copy of the statement of claim is served upon client to give him the opportunity to object to the lien or to the amount of attorney’s fees claimed by lawyer. In case of dispute, the court shall hear the parties and determine the lawyer’s right to the charging lien and the amount. A copy is also served to the adverse party so that the charging lien shall bind him.

100

SIGMA LEGIS COPY

Extinguishment of retaining lien  Retaining lien expires when possession lawfully ends, as when the lawyer voluntarily parts with funds, documents or papers of client or offers them in evidence in court.

gives lawyer same right and power as client over such judgment and is based on equity.

LEGAL PROFESSION & ETHICS Notice of lien on all parties interested confers upon the court jurisdiction to determine lien.



Purpose of notice to adverse party: to bind adverse party/judgment debtor since the latter is a stranger to the contract for professional fees between judgment creditor and his lawyer. Adverse party who should be notified of the claim for atty’s fees is one whose interest is adverse to the claim presented or the judgment debtor against whom the client secures a favorable judgment. Adverse party cannot raise lack of or defective notice to client as a defense; neither can he contest the validity of the lien.

To what charging lien attaches  Charging lien attaches to the judgment for the payment of money and the executions issued in pursuance of such judgment (i.e. money judgments). 

The lien does not comprise sums of money which according to the same judgment, must be applied to satisfy a legitimate debt of the client. A lawyer cannot have preference over and better right than the judgment creditor (his client) in the payment of professional fees.



The lien does not extend to property of client in the hands of an officer of court.

Effects of charging lien  Similar to collateral security or a lien on real or personal property, the charging lien gives the lawyer the right to collect, in payment of his professional fees and disbursements, a certain amount from out of the judgment or award rendered in favor of client. He has same right and power as his client to enforce his lien and secure payment. 

Charging lien follows proceeds of the judgment obtained for the client in the case wherever they may be and whoever received them. Exception: purchaser in good faith.



Judgment debtor who, in disregard of charging lien, satisfies judgment debt without reserving funds to pay attorney’s fees may be liable for full value of the lien.



A lawyer’s duly recorded charging lien enjoys preference of credit over that of a creditor who subsequently recorded it. Conversely, a third party who obtains a jugment against atty’s client

before the atty’s lien comes into being has preference over the lawyer. 

Lien survives death of client and need not be enforced in the settlement of the client’s estate.

Extinguishment of charging lien  Charging lien extinguished when client loses action. Remedy: file separate civil action 

Client cannot defeat attorney’s right to charging lien by dismissing case, terminating services of counsel, waiving his cause or interest in favor of adverse party, compromising his action, or assigning the subject matter thereof, except: (1) when lawyer waives his right by acts or omissions, and (2) when termination or dismissal is upon instance of adverse party.

Assignment of charging lien  General rule: attorney’s charging lien may be assigned or transferred without preference being extinguished. Exception: when assignment carries breach of attorney’s duties to preserve client’s confidence inviolate. Assignee steps into shoes of lawyer and enjoys all rights of the latter in the charging lien. Satisfaction of judgment  Satisfaction judgment in favor of client does not by itself extinguish the attorney’s charging lien. If satisfaction was made in disregard of attorney’s right when notice had been previously given to judgment debtor, the court may, upon motion of the attorney, vacate such satisfaction and enforce the lien by issuing a writ of execution for the full amount against judgment debtor. 

Satisfaction of judgment will extinguish charging lien when lawyer waives right thereto either by active conduct or by passive omission.

Enforcement  Lawyer may have his charging lien established, declared and enforced by the court which has jurisdiction of the case by filing proper motion before judgment for client is satisfied. 

Attorney need not be a party to the action but in a proper case, he may be permitted to intervene. In such a case, it is proper for lawyer to file petition in his own name against both plaintiff and defendant setting the particulars of his claim and lien. Notice of charging lien or petition filed for its registration in the record of the case that confers jurisdiction upon court.



Without a valid written contract fixing the amount of professional fees, lawyer must both allege and prove that 101

SIGMA LEGIS COPY



LEGAL PROFESSION & ETHICS







When client contests attorney’s right to receive compensation or the amount thereof, court must first resolve that question in full dress trial before it should order registration of charging lien. At all events, exact amount of attorney’s fees should be determined before enforcing lien. Client who fails to contest will be bound by attorney’s claim even though it may appear unjust. Charging lien may be enforced, upon proper motion, by execution against (1) client who receives proceeds of judgment without paying his lawyer, and (2) judgment debtor who, for disregarding charging lien properly served on him, becomes liable to the extent of lawyer’s claim.

NEW CODE OF JUDICIAL CONDUCT CANON 1 INDEPENDENCE  Canon 1. Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects. Sec. 1. Judges shall exercise the judicial function independently on the basis of their assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influence, inducement, pressure, threat or interference, direct or indirect, from any quarter or for any reason. Sec. 2. In performing judicial duties, Judges shall be independent from judicial colleagues in respect of decisions which the judge is obliged to make independently. Sec. 3. Judges shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court or administrative agency. Sec. 4. Judges shall not allow family, social, or other relationships to influence judicial conduct or judgment. The prestige of judicial office shall not be used or lent to advance the private interests of

others, nor convey or permit others to convey the impression that they are in a special position to influence the judge. Sec. 5. Judges shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to be free therefrom to a reasonable observer. Sec. 6. Judges shall be independent in relation to society in general and in relation to the particular parties to a dispute which he or she has to adjudicate. Sec. 7 Judges shall encourage and uphold safeguards for the discharge of judicial duties in order to maintain and enhance the institutional and operational independence of the judiciary. Sec. 8. Judges shall exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary which is fundamental to the maintenance of judicial independence. RE: SEC 1. EXERCISE JUDICIAL FUNCTION INDEPENDENTLY  People v. Veneracion (1995) F: Judge Veneracion finding the defendants Henry Lagarto and Ernesto Cordero guilty beyond reasonable doubt of the crime of Rape with Homicide and sentenced both accused with the "penalty of reclusion perpetua with all the accessories provided for by law." Disagreeing with the sentence imposed, the City Prosecutor of Manila filed a Motion for Reconsideration, praying that the Decision be "modified in that the penalty of death be imposed" against respondents Lagarto and Cordero, in place of the original penalty (reclusion perpetua). The SC found that the respondent judge acted with grave abuse of discretion and in excess of jurisdiction when he failed and/or refused to impose the mandatory penalty of death under R.A. 7659, after finding the accused guilty of the crime of Rape with Homicide. H: Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. In the case at bench, respondent judge, after weighing the evidence of the prosecution and the defendant at trial found the accused guilty beyond reasonable doubt of the crime of Rape with Homicide. Since the law in force at the time of the commission of the crime for which respondent judge found the accused guilty was Republic Act No. 7659, he was bound by its provisions. The law plainly and unequivocably provides that "[w]hen by reason or on the occasion of rape, a homicide is committed, the penalty shall be death." We are aware of the 102

SIGMA LEGIS COPY

the amount claimed is unpaid and that it is reasonable and just with notice served upon client and adverse party/judgment debtor.

LEGAL PROFESSION & ETHICS

 Tahil v. Eisma (1975) F: Respondent Municipal Judge Carlito A. Eisma is charged by complainant Hadjirul Tahil with dishonesty in not reporting regularly to his office, contrary to the recitals of his daily time record. According to the findings of the investigating judge: the filing of this complaint is motivated by hatred, anger and revenge on the part of the complainant. Complainant’s anger stems from the disapproval of the bail bond he brought for his nephew. But this disapproval is warranted due to the non-appearance of bondsmen. His anger is because he expected the judge to approve the bail bond simply because they are friends. It appears however that respondent admitted having granted bail to an accused upon the request of a congressman, despite his belief that the evidence of guilt against the accused was strong. The SC found that the respondent’s act of granting bail upon the request of a congressman was reprehensible. The SC thus admonished him. H: The discretion of the court to grant bail must be based upon the Court’s determination as to WON the evidence of guilt is strong. This discretion may only be exercised after the evidence is submitted at the summary hearing conducted pursuant to Sec 7 of Rule 114 of the Rules. Respondent’s admission that he granted bail to an accused upon the request of a congressman, despite his belief that the evidence of guilt against the accused was strong is indeed reprehensible. But it is not clear WON a summary hearing was conducted by respondent Judge for the purpose of bail and, on the basis of the evidence submitted, granted bail to the accused. Moreover, respondent was not specifically charged and investigated in this regard, and in the absence of any specific finding that respondent gravely abused his discretion in granting bail to the accused, this court has no basis to impose a fine upon respondent. RE: SEC 3. REFRAIN FROM INFLUENCING LITIGATION OR PROCEEDING

OUTCOME

OF

 OCA v. deGuzman (1997) F: Judge Cosico denied a party’s motion to cancel notice of lis pendens. When case was re-raffled

due to Cosico’s retirement, the annotation of lis pendens was eventually cancelled by Judge de Guzman. Upon investigation, Cosico said that while he was hearing the case, Judge de Guzman approached him and asked him to grant motion to lift notice of lis pendens. When motion was denied, Judge de Guzman was said to have come back to Cosico’s office asking him (Cosico) to reconsider order of denial. The Court found that Judge de Guzman tried to influence the outcome of the case. H: YES. Judge de Guzman approached Judge Cosico at least twice asking him to cancel the notice of lis pendens, thereby, trying to influence the course of the litigation in the case in violation of Code of Judicial Conduct. Being the dispensers of justice, judges should not act in a way that would suspicion in order to preserve faith in the administration of justice. Act of interference by Judge de Guzman with the subject case pending in the sala of Judge Cosico clearly tarnishes the integrity and independence of the judiciary and subverts the people’s faith in the judicial process.  Contreras v. Solis (1996) F: One Rufino Mamangon was charged for the murder of complainant's brother. The RTC dismissed the case for lack of jurisdiction. The accused Mamangon however was not released and so a petition for habeas corpus was filed. Respondent presided over the petition. He initially dismissed it and a motion for reconsideration was filed. Later, respondent ordered the release of the accused upon posting of a P25000 cash bond. He subsequently canceled the bond and ordered the re-arrest of the accused after the public prosecutor filed a motion for reconsideration. Thereupon, the complainant filed this administrative complaint. According to the assigned investigating officer, after the accused filed his motion for reconsideration on the denied petition, complainant had a meeting with respondent inside the latter's office at around 7 am (at this hour, court employees are not yet in for work). Respondent informed complainant of the motion for reconsideration filed by the accused and his willingness to pay P25000 as bail bond. It appeared to complainant that what the respondent was actually saying was that if the former was willing to pay the same amount, the accused would not be released. Respondent insists that the purpose of such meeting was to inform the complainant of the motion for reconsideration so he could participate. He did not ask any money from the complainant and the latter admits that he did not give any. The amount that the respondent mentioned was what the complainant was going to spend for a lawyer. The investigating officer however was not convinced. Respondent could have informed complainant about the habeas corpus proceedings at an earlier stage by simply furnishing him a copy of the first order. Why did he wait at the last working hour on a Friday to schedule a meeting on 7 am Monday? The acts of the respondent, according to the investigating officer lends to suspicions of dishonesty. She recommends that respondent be advised to avoid such occasions. As to the order issued by the 103

SIGMA LEGIS COPY

trial judge's misgivings in imposing the death sentence because of his religious convictions. While this Court sympathizes with his predicament, it is its bounden duty to emphasize that a court of law is no place for a protracted debate on the morality or propriety of the sentence, where the law itself provides for the sentence of death as a penalty in specific and well-defined instances.

LEGAL PROFESSION & ETHICS

H: As to the alleged extortion: The respondent's seemingly benign conduct of meeting with the complainant to advise him of a pending case is puzzling since the records do not show any reason that would justify respondent's special interest/concern over the complainant. A reasonable person would deduce that respondent's mention of the potency of the accused's motion for reconsideration and the amount that the complainant would spend for an attorney means that the respondent is actually suggesting that complainant should just give the money to respondent for a favorable decision. A proposal to pay the judge need not only be stated expressly. This can also be implied. Respondent's pretended innocence of the message perceived by complainant is unconvincing considering the fact that he has been in the practice of law for years. As a judicial officer he should avoid the slightest hint of anomaly and corruption. He should conduct himself in a manner to avoid any suspicion of irregularity. Whatever may have been respondent's motive in meeting with the complainant, such action certainly gave rise to questions of honesty. With regard to the erroneous orders, it appears that the legal basis used by the judge were incorrectly applied. A bond was not necessary since the accused, after the dismissal of the criminal case, was supposed to have been set free. However, an erroneous decision cannot be the sole basis for disciplining a judge. It must be clearly shown that such judgment was unjust as being contrary to law and the judge rendered it with conscious and deliberate intent to do injustice. The respondent cannot be held liable for an erroneous order. Issuing it was an official act and is presumed to have been done in good faith. The court is unable to find a clear and definite connection between the attempt at extortion and the subsequent issuance of the erroneous orders. It would be unjust to presume wrong intentions on the part of the respondent. RE: SEC 4. REFRAIN FROM BEING INFLUENCED BY FAMILY, SOCIAL OR OTHER RELATIONSHIPS  Padilla v. Zantua (1994) F: Mayor Padilla charged Judge Zantua, with serious irregularities and grave misconduct in the performance of his official duties for: (1) failure to

decide cases within the prescribed period; (2) unreasonable delay in the disposition of cases which have been prejudicial to litigants; (3) manifest partiality in favor of a litigant and (4) fraternizing with lawyers who have pending cases in his sala. Mayor Padilla complains that these cases have been pending since, 1991, some have not even been tried and because of delays in the disposition of these cases and the perceived partiality of respondent Judge for Atty. Schneider, the people's confidence in the judiciary is being eroded. Respondent Judge denies that he is fraternizing with lawyers with pending cases in his sala, explaining that in the case of Atty. Schneider, he is the only lawyer in the Municipality and it is but natural for respondent Judge to be friendly with him but maintains that their friendship has never been a hindrance to the proper disposition of the cases in his sala as his impartially is known not only in the Municipality of Jose Panganiban, but also in the province of Camarines Norte. The SC held that the respondent judge was guilty of serious irregularities and grave misconduct in the performance of his official duties for manifest partiality in favor of a litigant and fraternizing with lawyers who have pending cases in his sala. H: Respondent Judge does not deny his close friendship and association with Atty. Augusto Schneider. Constant company with a lawyer tends to breed intimacy and camaraderie to the point that favors in the future may be asked from respondent judge which he may find hard to resist. The actuation of respondent Judge of eating and drinking in public places with a lawyer who has pending cases in his sala may well arouse suspicion in the public mind, thus tending to erode the trust of the litigants in the impartiality of the judge. This eventuality may undermine the people's faith in the administration of justice. It is of no moment that Atty. Augusto Schneider is the only lawyer in the locality. A judge should behave at all times as to inspire public confidence in the integrity and impartiality of the judiciary. The prestige of judicial office shall not be used or lent to advance the private interests of others, nor convey or permit others to convey the impression that they are in a special position to influence the judge. We find this case an occasion to remind members of the Judiciary to so conduct themselves as to be beyond reproach and suspicion, and be free from any appearance of impropriety in their personal behavior not only in the discharge of their official duties but also in their everyday life. Public confidence in the Judiciary is eroded by irresponsible or improper conduct of judges. A judge must avoid all impropriety and the appearance thereof. Being the subject of constant public scrutiny, a judge should freely and willingly accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen. RE: SEC. 5 INDEPENDENCE FROM EXECUTIVE AND LEGISLATIVE 

In re Cunan (1954) 104

SIGMA LEGIS COPY

judge to release the accused upon bail and the subsequent cancellation of the bail and re-arrest, the investigating officer found that the respondent committed errors. The SC agreed with the findings of the investigating officer.

LEGAL PROFESSION & ETHICS

2.

3.

4.

Because it is, in effect, a judgment revoking the resolution of this Court on the petitions of these 810 candidates, without having examined their respective examination papers, and although it is admitted that this Tribunal may reconsider said resolution at any time for justifiable reasons, only this Court and no other may revise and alter them. In attempting to do it directly RA 972 violated the Constitution. By the disputed law, Congress has exceeded its legislative power to repeal, alter and supplement the rules on admission to the Bar. The reason advanced for the pretended classification of candidates, which the law makes, is contrary to facts which are of general knowledge and does not justify the admission to the Bar of law students inadequately prepared.

The pretended classification is arbitrary. It is undoubtedly a class legislation. RE: SEC 8 PROMOTE PUBLIC CONFIDENCE  Macalintal v. Teh (1997) F: Atty. Macalintal related to the Court in a letter the actuations of Judge Teh, relative to Election Case No. R-95-001. Judge Teh issued a resolution adverse to the client of complainant. He questioned the resolution via certiorari with the COMELEC. While case was pending in the COMELEC, Teh actively participated in the proceedings by filing his comment on the petition, as well as an urgent manifestation. Complainant filed a motion for inhibition but instead, Teh hired his own lawyer and filed answer before the court with prayer. The SC found that Judge Teh’s actuations eroded public confidence in the administration of justice. H: Evidently, the active participation of the respondent judge, being merely a nominal or formal party in the certiorari proceedings is not called for. “xxx Under Sec 5 of Rule 65 of the ROC, a judge whose order is challenged in an appellate court does not have to file any answer or take active part in the proceeding unless expressly directed by order of this court. It is the duty of respondent to appeal and defend, both in his/her behalf and in behalf of the Court or judge whose order or decision is at issue. xxx” Respondent’s folly did not stop there. When complainant filed for respondent’s inhibition, he hired his own lawyer. Respondent judge should be reminded that decisions of courts need not only be just but must be perceived to be just and completely free from suspicion or doubt both in its fairness and integrity. CANON 2 INTEGRITY  Canon 1. Integrity is essential not only to the proper discharge of the judicial office but also to the personal demeanor of judges. Sec. 1. Judges shall ensure that not only is their conduct above reproach, but that it is perceived to be so in the view of a reasonable observer. Sec. 2. The behavior and conduct of judges must reaffirm the people's faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done. Sec. 3. Judges should take or initiate appropriate disciplinary measures against lawyers or court personnel for unprofessional conduct of which the judge may have become aware. RE: SEC. 1. CONDUCT ABOVE REPROACH 105

SIGMA LEGIS COPY

RA 972 (the bar flunkers act) has for its object to admit to the Bar, those candidates who suffered from insufficiency of reading materials and inadequate preparation. By its declared objective, the law is contrary to public interest because it qualifies 1,094 law graduates who confessedly had inadequate preparation for the practice of the profession, as was exactly found by this Tribunal in the aforesaid examinations. An adequate legal preparation is one of the vital requisites for the practice of law that should be developed constantly and maintained firmly. To the legal profession is entrusted the protection of property, life, honor and civil liberties. It is obvious, therefore, that the ultimate power to grant license for the practice of law belongs exclusively to this Court, and the law passed by Congress on the matter is of permissive character, or as other authorities say, merely to fix the minimum conditions for the license. Laws are unconstitutional on the following grounds: first, because they are not within the legislative powers of Congress to enact, or Congress has exceeded its powers; second, because they create or establish arbitrary methods or forms that infringe constitutional principles; and third, because their purposes or effects violate the Constitution or its basic principles. As has already been seen, the contested law suffers from these fatal defects. Summarizing, we are of the opinion and hereby declare that RA. 972 is unconstitutional and therefore, void, and without any force nor effect for the following reasons, to wit: 1. Because its declared purpose is to admit 810 candidates who failed in the bar examinations of 1946-1952, and who, it admits, are certainly inadequately prepared to practice law, as was exactly found by this Court in the aforesaid years.

LEGAL PROFESSION & ETHICS

H: There is no doubt in the Court’s mind that there is a very special relationship between Sol and Modesto. Though it started as relations before Sol’s marriage, it developed into an extra-marital affair. It must, however, be stressed that Juanson is not charged with immorality or misconduct committed before he was appointed to the judiciary. As to the post-appointment period, the court finds the evidence for Norbert insufficient to prove that Juanson and Sol continued their extra-marital affair. Since Norbert’s narration was only treated as narration and not put into evidence, they are considered as proof that Sol made statements, but not proof that the facts revealed are true. As such, the acts of sexual intercourse admitted by Sol cannot be deemed proven. There is no direct and competent evidence against Juanson that he had illicit sex with Sol. The imputation of illicit sexual acts upon the incumbent judge must be proven by substantial evidence, which is the quantum of proof required in administrative cases. Also, it may be that Juanson has undergone moral reformation after his appointment, or his appointment could have completely transformed him upon the solemn realisation that a public office is a public trust. Nevertheless, considering their prior relationship, Juanson and Sol’s meetings could reasonably incite suspicion of either its continuance or revival and the concomitant intimacies expressive of such relationship. Juanson became indiscreet, he encumbered to the sweet memories of the past and he was unable to disappoint Sol when she asked for his legal advice. Such indiscretions indubitably cast upon his conduct as appearance of impropriety.  Romero v. Valle (1987) F: All this started over an argument on whether to label an evidence as exhibit F or exhibit G. The facts are stated by the investigating officer assigned. Complainant was one of the two lawyers in a civil case tried by the respondent judge. During a hearing, complainant asked that an evidence be marked exhibit F. Respondent interrupted and said that there was already an exhibit F so the evidence should be marked exhibit G. Complainant in a loud voice insisted that his proposed marking was correct. This irritated the respondent and he admonished the

complainant that the latter should come to court prepared. Respondent also told complainant that he should not bring his passion to the court and if complainant does not respect the judge, he should respect the court. Complainant continued insisting in a loud voice that the evidence be marked exhibit F. The respondent banged his gavel, left the rostrum and went to his chamber. Complainant's version states that the respondent unceremoniously removed his coat and challenged complainant to step out and they will settle the matter. Respondent's version states that when the respondent left the rostrum all he said was five minute recess. One of complainant's own witness, which the investigating officer found to be the most impartial, said that respondent did not remove his coat and that all the witness heard from him was, step out. Respondent, after coming out of his chamber, holding his revolver inside its holster with his right hand, looked at the courtroom where the lawyers were. The gun was not really pointed at anyone but he did look at the people inside the courtroom. Respondent had a permit for carrying a licensed gun because of death threats he had received from the NPA. The complainant now charges respondent with grave misconduct and oppression. The SC dismissed the Judge from the service but also required the complainant to show why disciplinary proceedings should not be taken against him. H: The relations between judge and counsel should be based on mutual respect and a deep appreciation by one of the duties of the other. Both are expected to maintain the high esteem for the courts. Counsel should observe respect due to the court, to opposing counsel and to judicial officers. In our culture, raising one's voice is a sign of disrespect, improper to one whose investiture into the legal profession places upon his shoulders no burden more basic, more exacting and more imperative than that of respectful behavior. towards the courts. Complainant, as an active law practitioner and leader of several law organizations in the community should provide an example of proper decorum to his brothers in the profession. He should have observed humility and accepted mistakes graciously. Respondent judge was also at fault for his shortness of temper and impatience, contrary to the duties and restriction imposed upon him by reason of his office. He failed to observe the proper decorum expected of judicial officers. Judicial officers are given contempt powers so that they can remind counsels of their duties in court without being arbitrary, unreasonable or unjust. Respondent should have cited the complainant in contempt of court instead of throwing tantrums by banging his gavel loudly and unceremoniously walking out of the courtroom. Although respondent had a valid explanation for carrying a gun, his act of carrying it in plain view of the lawyers (including the complainant) and considering what just happened, cannot be taken as an innocent gesture. It was calculated to instill fear and intimidate the complainant. Respondent's behavior constitutes grave misconduct. A judge's 106

SIGMA LEGIS COPY

 Alfonso v. Juanson (1993) F: Dr. Alfonso filed this complaint for immorality and violation of the Code of Judicial Ethics against Judge Juanson. Alfonso alleges that Juanson has been maintaining an illicit affair with Alfonso’s wife, Sol. The SC, however, did not dismiss Judge Juanson.

LEGAL PROFESSION & ETHICS

RE: SEC. 2 REAFFIRM PEOPLE’S FAITH  Castillo v. Calanog (1991) F: In a sworn letter complaint, Castillo alleged that Judge Calanog and her have an affair and that she was convinced by the judge to be his mistress due to promises of giving her a condominium to live in and financial support for her daughters. Castillo further alleged that when she conceived their son, the judge suddenly left her and failed to provide financial support despite several pleadings. After Judge denied allegations, Castillo also sent formal “affidavit of Desistance” denying her initial allegations. H: Calanog established an intimate, albeit immoral, relationship with Castillo although Calanog is a married man. Calanog behaved in a manner not becoming of his robes and as a model of rectitude, betrayed the people’s high expectations, and diminished the esteem in which they hold the judiciary in general. The circumstances show a lack of circumspection and delicadeza on the part of Calanog by failing to avoid situations that make him suspect to committing immorality and worse, having that suspicion confirmed. A judge must be free of a whiff of impropriety not only with respect to his performance of his judicial duties, but also to his behavior outside his sala and as a private individual. There is no dichotomy of morality: a public official is also judged by his private morals. Calanog also committed a grave injustice when he took advantage of Castillo’s state of material deprivation and helplessness when he persuaded her to be his mistress. He used the brute force of his position of power and authority.

Sec. 2. Judges shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary. Sec. 3. Judges shall, so far as is reasonable, so conduct themselves as to minimize the occasions on which it will be necessary for them to be disqualified from hearing or deciding cases. Sec. 4. Judges shall not knowingly, while a proceeding is before, or could come before, them make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process. Nor shall judges make any comment in public or otherwise that might affect the fair trial of any person or issue. Sec. 5. Judges shall disqualify themselves from participating in any proceedings in which they are unable to decide the matter impartially or in which it may appear to a reasonable observer that they are unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where (a) The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings; (b) The judge previously served as a lawyer or was a material witness in the matter in controversy; (c) The judge, or a member of his or her family, has an economic interest in the outcome of the matter in controversy; (d) The judge served as executor, administrator, guardian, trustee or lawyer in the case or matter in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein; (e) The judge's ruling in a lower court is the subject of review; (f) The judge is related by consanguinity or affinity to a party litigant within the sixth civil degree or to counsel within the fourth civil degree; or (g) The judge knows that his or her spouse or child has a financial interest, as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceedings;

 Canon 1. Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.

Sec. 6. A judge disqualified as stated above may, instead of withdrawing from the proceeding, disclose on the records the basis of disqualification. If, based on such disclosure, the parties and lawyers independently of the judge's participation, all agree in writing that the reason for the inhibition is immaterial or unsubstantial, the judge may then participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceedings.

Sec. 1. Judges shall perform their judicial duties without favor, bias or prejudice.

RE: SEC. 2 PROMTE CONFIDENCE AND IIMPARTIALITY

CANON 3 IMPARTIALITY

107

SIGMA LEGIS COPY

conduct should be free from the appearance of impropriety not only in his official duties but in his everyday life. One who lives by the precept that might is right: is unworthy to be a judicial officer.

LEGAL PROFESSION & ETHICS

H: The integrity of the Judiciary rests not only upon the fact that it is able to administer justice but also upon the perception and confidence of the community that the people who run the system have done justice. Hence, in order to create such confidence, the people who run the judiciary, particularly judges and justices, must not only be proficient in both the substantive and procedural aspects of the law, but more importantly, they must possess the highest integrity, probity, and unquestionable moral uprightness, both in their public and private lives. Only then can the people be reassured that the wheels of justice in this country run with fairness and equity, thus creating confidence in the judicial system. With the avowed objective of promoting confidence in the Judiciary, we have the following provisions of the Code of Judicial Conduct: Rule 2.01: A judge should so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary. The Court has adhered and set forth the exacting standards of morality and decency which every member of the judiciary must observe. A magistrate is judged not only by his official acts but also by his private morals, to the extent that such private morals are externalized. He should not only possess proficiency in law but should likewise possess moral integrity for the people look up to him as a virtuous and upright man. Being the subject of constant public scrutiny, a judge should freely and willingly accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen. A judge should personify integrity and exemplify honest public service. The personal behavior of a judge, both in the performance of his official duties and in private life should be above suspicion. Respondent has failed to measure up to these exacting standards. He has

behaved in a manner unbecoming of a judge and as model of moral uprightness. He has betrayed the people's high expectations and diminished the esteem in which they hold the judiciary in general. We need not repeat the narration of lewd and lustful acts committed by respondent judge in order to conclude that he is indeed unworthy to remain in office. The audacity under which the same were committed and the seeming impunity with which they were perpetrated shock our sense of morality. All roads lead us to the conclusion that respondent judge has failed to behave in a manner that will promote confidence in the judiciary. His actuations, if condoned, would damage the integrity of the judiciary, fomenting distrust in the system. Hence, his acts deserve no less than the severest form of disciplinary sanction of dismissal from the service. The actuations of respondent are aggravated by the fact that complainant is one of his subordinates over whom he exercises control and supervision, he being the executive judge. He took advantage of his position and power in order to carry out his lustful and lascivious desires. Instead of he being in loco parentis over his subordinate employees, respondent was the one who preyed on them, taking advantage of his superior position. RE: SEC. 5 DISQUALIFICATIONS  Masadao v. Elizaga (1987) F: On May 4, 1987, Judge Masadao rendered a decision finding the accused, Jaime Tadeo, guilty of estafa. Justice JBL Reyes entered his appearance for the accused. Judge Masadao issued an order inhibiting himself from further sitting in the case on the ground that retired Justice Reyes has been among those who had recommended him to the bench. A raffle was conducted and the case was assigned to Judge Elizaga Judge Elizaga returned the records with a letter stating his refusal to act and assailing the re-raffling of the case as uncalled for and impractical. H: It is clear from the reading of the law that intimacy or friendship between a judge and an attorney of record of one of the parties to a suit is no ground for disqualification. To allow it would unnecessarily burden other trial judges to whom the cases would be transferred. In fact, this is one rare opportunity for Masadao to show that JBL Reyes did not err in recommending him for his competence and known probity;that he has conducted himself with the cold impartiality of an impartial judge; that no one can sway his judgment whoever he may be However, men of the Bench are not without imperfections. A judge experiences the “tug and pull of purely personal preferences and prejudices which he shares with the rest of his fellow mortals”. Especially for Filipinos whose sense of gratitude in one trait which invariably reigns supreme over any and all considerations in matters upon which such tender 108

SIGMA LEGIS COPY

 Talens-Dabon v. Arceo (1996) F: Talens-Dabon, Clerk of Court of the RTC of San Fernando Pampanga, charged Judge Hermin E. Arceo, the Executive Judge thereat with gross misconduct and immorality. Respondent Judge had a reputation in the office as being "bastos" and "maniakis". There were instances were the judge talked in a loud voice and shouted and used offensive words such as “walang isip” and “tanga”; told green jokes; made bodily contact ("chancing") with her and certain female employees; kissed complainant on the cheeks; respondent summoned the stenographer to his chamber and she found him clad only in briefs. Judge gave the complainant a poem, locked her in his chambers and tried to take advantage of her. The SC found the respondent judge guilty of gross misconduct

LEGAL PROFESSION & ETHICS

 Lorenzo v. Marquez (1988) F: Lorenzo, with an indorsement by the NBI, executed a sworn statement against Judge Marquez charged him with violation of Sec Rule 137 ROC in deciding KBP v. Balid. Marquez was a member of the board of directors of the plaintiff in said case and served as counsel. When Marquez took over the case, he set the case for hearing and rendered a decision favourable to the plaintiff. He proceeded to decide on the case since there was no objection from the parties. The SC found that indeed, Judge Marquez was not impartial and should have been disqualified in the case H: The judgment in this case was rendered in favor of the plaintiff and against the defendant. Clearly, according to Sec. 1 Rule 137 of the ROC, no judge or official shall sit is any case in which he, or his wife, or child is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree computed according to the rules of civil law, or in which he has been executor, administrator, guardian, trustee or counsel…” From the foregoing provision, a judge cannot sit in any case in which he was a counsel without the written consent of all parties. The rule is explicit that he must secure the written consent of all parties, not a mere verbal consent much less a tacit acquiescence. The written consent must be signed by them and entered upon the record. The failure of the respondent to observe these elementary rules of conduct betrays his unusual personal interest in the case which prevailed over and above his sworn duty to administer the law impartially.

Sec. 2. As a subject of constant public scrutiny, judges must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In particular, judges shall conduct themselves in a way that is consistent with the dignity of the judicial office. Sec. 3. Judges shall, in their personal relations with individual members of the legal profession who practice regularly in their court, avoid situations which might reasonably give rise to the suspicion or appearance of favoritism or partiality. Sec. 4. Judges shall not participate in the determination of a case in which any member of their family represents a litigant or is associated in any manner with the case. Sec. 5. Judges shall not allow the use of their residence by a member of the legal profession to receive clients of the latter or of other members of the legal profession. Sec. 6. Judges, like any other citizen, are entitled to freedom of expression, belief, association and assembly, but in exercising such rights, they shall always conduct themselves in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary. Sec. 7. Judges shall inform themselves about their personal fiduciary financial interests and shall make reasonable efforts to be informed about the financial interests of members of their family. Sec. 8. Judges shall not use or lend the prestige of the judicial office to advance their private interests, or those of a member of their family or of anyone else, nor shall they convey or permit others to convey the impression that anyone is in a special position improperly to influence them in the performance of judicial duties. Sec. 9. Confidential information acquired by judges in their judicial capacity shall not be used or disclosed by for any other purpose related to their judicial duties.

 Canon 4. Propriety and the appearance of propriety are essential to the performance of all the activities of a. judge.

Sec. 10. Subject to the proper performance of judicial duties, judges may (a) Write, lecture, teach and participate in activities concerning the law, the legal system, the administration of justice or related matters; (b) Appear at a public hearing before an official body concerned with matters relating to the law, the legal system, the administration of justice or related matters; (c) Engage in other activities if such activities do not detract from the dignity of the judicial office or otherwise interfere with the performance of judicial duties.

Sec. 1. Judges shall avoid impropriety and the appearance of impropriety in all of their activities.

Sec. 11. Judges shall not practice law whilst the holder of judicial office.

CANON 4 PROPRIETY

109

SIGMA LEGIS COPY

sentiment may somehow inexorably impinge. The circumstances before judge Masadao are not ordinary ones. Thus, this is one certain circumstance where a case could well be heard by another judge and where a voluntary inhibition may prove to be the better course of action. Judge Masadao’s actuations are within par 2 sec 1 rule 137.

LEGAL PROFESSION & ETHICS

Sec. 13. Judges and members of their families shall neither ask for, nor accept, any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done by him or her in connection with the performance of judicial duties. Sec. 14. Judges shall not knowingly permit court staff or others subject to their influence, direction or authority, to ask for, or accept, any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done in connection with their duties or functions. Sec. 15. Subject to law and to any legal requirements of public disclosure, judges may receive a token gift, award or benefit as appropriate to the occasion on which it is made provided that such gift, award or benefit might not reasonably be perceived as intended to influence the judge in the performance of judicial duties or otherwise give rise to an appearance of partiality. RE: SEC. 1 AVOIDANCE OF IMPROPRIETY  Lao v. Abelita (1998) F: Two administrative cases were filed against respondent Judge. The first complaint accused respondent judge of abuse of authority, grave misconduct, oppression and harassment. The second complaint charged him with serious misconduct and conduct unbecoming of a judge. In the first case, the complainant alleged that respondent judge forcibly entered and gained entrance without his knowledge in his office, residence and bodega, and that he removed the padlock to the residence-bodega and replaced it, depriving complainant of access, possession and use of residence and bodega. In the second case, during the pendency of the first case, respondent ordered some people to (a) enter the nursery compound, one of the properties subject matter in the first case, build a shanty to take possession of property; (b) cut off electric power of the water pump to deprive water supply and (c) respondent ordered his man, Agao, to shoot, with a shotgun, the workers of the complainant who were about to install water pipes in the nursery resulting in the injury of his nephew, William Lao. H: Respondent judged failed to measure up to what could well be expected of him as an officer of the judiciary. It was shown that (a) Respondent Judge

took possession, by destroying the lock to the door, of the bodega then being used and occupied by complainant. After celebrating his party, respondent Judge closed the place using a new padlock and effectively evicting complainant from the premises. (b) respondent judge ordered Policronio Agao to fire his shotgun, hitting William Lao in the process. (c) although the shotgun used in the shooting incident was a licensed firearm, respondent had no authority, however, to bring that gun outside residence. (d) Instead of acceding to the request of Superintendent Doria to forthwith go with him to the police headquarters to shed light on the shooting incident, respondent judge sped away from them. (e) finally, when police officers caught up with respondent judge and his wife, he was found to be in possession of an unlicensed .45 caliber handgun. As the court held in Saburnido vs. Madrono, “it was highly improper for a judge to have wielded a high-powered firearm in public and besieged the house of a perceived defamer of character and honor in warlike fashion and berated the object of his ire, with his firearm aimed at the victim…”  Arban v. Borja (1989) F: Ponciano A. Arban, the then District Engineer for Camarines Sur, Ministry of Public Works and Highways, filed an administrative case for grave misconduct against Judge Melecio B. Borja, on that ground that in the presence of people taking their lunch and others, the said respondent, without any justification whatever, hit with the pistol he was carrying the herein petitioner on the left side of his head, sending him sprawling to the floor and rendering him momentarily unconscious. The SC found that the respondent Judge commited an act of serious misconduct, one which degrades the integrity of the judicial office and serves as a demoralizing example to the public. H: The complainant's avowal that his 'personal interests' have been 'already satisfied,' is not all there is to this case. There is the matter of the public interest involved in the case. The respondent is not just an ordinary citizen, but a highly visible member of the judicial branch of the Government, particularly, an incumbent judge of the RTC stationed in Naga City. The complainant is, himself, an official of the government — an engineer of the Ministry of Public Works and Highways. The fact that the incident was accorded with widest possible publicity in both regional and national newspaper attests to the very sensitive position occupied by the respondent. There is, thus, not only the complainant's private interests involved, but also the public interest involved in the act of an official whom position carries with it great responsibility and which position demanded the highest norm of conduct from the incumbent both in his public and private capacities, whether in court or out of it. There is no doubt in the mind of the Court from the records of this case, inspite of the cover-ups and the sudden loss of interest of the complainant to vigorously pursue his complaint, that the physical injuries inflicted on Mr. Arban were caused by a pistol-whipping. 110

SIGMA LEGIS COPY

Sec. 12. Judges may form or join associations of judges or participate in other organizations representing the interests of judges.

LEGAL PROFESSION & ETHICS

This Court ruled in De la Paz v. Inutan (64 SCRA 540), that: “The judge is the visible representation of the law and, more importantly, of justice. From him, the people draw their win and awareness to obey the law. They see in him an intermediary of justice between two conflicting interests, specially in the station of municipal judges, like respondent Judge, who have that close and direct contact with the people before anybody else in the judiciary. Thus, for the judge to return that regard, he must be the first to abide by the law and weave an example for the others to follow. He should be studiously careful to avoid even the slightest infraction of the law.” RE: SEC. 6 FREEDOM OF EXPRESSION  Vistan v. Nicolas (1991) F: Vistan filed administrative cases against Judge Nicolas for gross ignorance of the law and grave abuse of discretion (Judge acquitted accused in a criminal case despite not having ruled yet on accused’s written offer of evidence), for maintaining an illicit relationship and for having violated election laws when he sent out letters showing intent to run for Congress prior to date given by COMELEC. The SC dismissed Vistan from office. H: Judge Nicolas also violated Rule 5.10, Canon 5, of the Code of Judicial Conduct which states: “...to avoid suspicion of political partisanship, a judge shall not...participate in other partisan political activities.” Judge took advantage of his position to boost his candidacy, demeaned stature of his office and must be pronounced guilty of gross misconduct. A Judge’s official conduct should be free from impropriety or any appearance thereof. His personal behavior in the performance of official duty, as well as everyday life, should be beyond reproach. High ethical principles and a sense of propriety should be maintained, without which the faith of the people in the judiciary so indispensable in an orderly society

cannot be preserved. Moral integrity is more than a virtue; it is a necessity in the Judiciary. RE: SEC. 8 INFLUENCE ON JUDICIAL CONDUCT  Aquino v. Luntok (1990) F: Petitioners, of the Provincial Auditor’s office of Camarines Sur, conducted an audit of the Municipal Treasurer of Libmanan, Camarines Sur and found a cash shortage. Pursuant to BP 337, they seized the treasurer’s cash, books, papers and accounts. He was also suspended from office. The Treasurer filed a petition with the trial court, presided over by respondent judge, for prohibition with injunction and with a prayer for a restraining order and damages. Judge Luntok issued a TRO, extended its effectivity twice, and finally granted an application for a writ of preliminary injunction. Petitioners argue that the writ is void for being in reality a fourth restraining order issued beyond the 20-day effectivity of the preceeding TRO. The SC upheld the writ of preliminary injunction but reprimanded the Judge. H: Except for delay in the resolution of the application for and the subsequent issuance of the writ, the other requisites provided by the rules for the grant thereof have been observed, hence, grant of writ must be upheld. Present state of law which allows court to do by indirection what should not be done directly should be remedied by amendment of the rule if intent is to nullify a writ of preliminary injunction belatedly issued. Dubious orders of judge and other circumstances show that he violated Rule 3.01 of Canon 3 of the Code of Judicial Conduct, which calls for a judge to be faithful to the law and maintain professional competence, and Rule 3.05 which admonishes all judges to dispose of the court's business promptly and decide cases within the required periods. RE: SEC. 9 CONFIDENTIAL INFORMATION  Umale v. Villaluz (1973) F: Leon Umale filed a robbery case against 16 accused before the Circuit Criminal Court in Pasig, Rizal presided by Judge Onofre Villaluz. Judge Villaluz had issued several orders regarding the case from Jan. 19 to April 12, 1971 when, on April 15, 1971, he voluntarily inhibited himself without any party moving for it. His reason: before filing of the case, he already had personal knowledge of it. Judge Villaluz then directed immediate forwarding of records of case to Exec Judge of CFI Pasig, Rizal for proper disposition. Petitioner Umale opposed inhibition but his motions for reconsideration, for deferment of raffling of case, and for return of case to Circuit Criminal Court were denied. He filed case before SC. The SC held that Judge Villaluz could voluntarily inhibit himself without any motion by the parties. H: Personal knowledge of the case pending before him is not one of the causes for the disqualification of a judge under 111

SIGMA LEGIS COPY

Whatever the motive may have been, the violent action of the respondent in a public place constitutes serious misconduct and the resultant outrage of the community in Naga City is a blow to the image of the entire judiciary. Judge Borja violated the established norm for judicial behavior that "a judge's official conduct should be free from appearance of impropriety, and his personal behavior not only upon the bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach (Sec. 3, Cannon of Judicial Ethics)

LEGAL PROFESSION & ETHICS

RE: SEC. 11 PRACTICE OF PROFESSION  Tuzon v. Cloribel (2001) F: Victor G. Tuzon filed with the CA a petition for certiorari assailing the order of Judge Loreto Cloribel-Purugganan, which denied Tuzon’s motion to allow cross-examination of his witness and directed that the case be submitted for resolution. Respondent judge went further and filed the comment for the Raymundo Catral and herself, and affixed her name and signature on the comment. Tuzon also averred that respondent judge antedated her decision in the Civil decision and alleged that complainant failed to present any evidence to

support such accusation. The SC found that the respondent Judge is guilty of illegal practice of law. H: The Court has reminded judges of the lower courts that a judge whose order is challenged in an appellate court need not file any answer, or take an active part in the proceedings unless expressly directed by order of the Court. In the case at bar, it is undisputed that respondent judge filed a comment on behalf of the respondent Raymundo E. Catral in the case on review with the CA. Respondent judge signed the pleading herself and submitted it to the court notwithstanding that it was her decision that was the subject of the petition in the said court. A judge must maintain a detached attitude from the case and shall not waste his time by taking an active part in a proceeding that relates to official actuations in a case. He is merely a nominal party and has no personal interest or personality therein. Further, respondent judge, in signing and filing a comment with the court on behalf of one of the parties, engaged in the private practice of law. The practice of law is not limited to the conduct of cases in court or participation in court proceedings but includes preparation of pleadings or papers in anticipation of litigation. Under Section 35, Rule 138 of the Revised Rules of Court, and Rule 5.07 of the Code of Judicial Conduct, judges are prohibited from engaging in the private practice of law. This is based on public policy because the rights, duties, privileges and functions of the office of an attorney-at-law are inherently incompatible with the high official functions, duties, powers, discretion and privileges of a judge. RE: SEC. 13 GIFTS, REQUESTS, LOANS  Ompoc v. Torre (1989) F: A sworn letter of complaint was filed by Atty. Ompoc against Judge Torres. According to Atty. Ompoc, Judge Torres invited him and his client to the judge’s house while their case was being tried in Judge Torres’s sala. The judge gave them a guide of what evidence to present to be able to win the case. In exchange, Judge Torres asked Atty. Ompoc’s client to install an air-con unit in the latter’s lite-ace. The Investigating judge found the complainant’s stories valid and true. The SC dismissed him from the service. R: Receiving money from a party litigant is the kind of gross and flaunting misconduct on the part of the judge, who is charged with the responsibility of administering the law and rendering justice. Members of the judiciary should display not only the highest integrity but must, at all times, conduct themselves in such manner as to be beyond reproach and suspicion. CANON 5 EQUALITY

112

SIGMA LEGIS COPY

the first paragraph of Sec. 1 of Rule 137 of the Revised Rules of Court (took effect Jan. 1, 1964). But paragraph 2 of said section authorizes the judge, “in the exercise of his sound discretion, to disqualify himself from sitting in a case, for just or valid reason other than those mentioned” in par. 1. Before 1964, a judge could not just voluntarily inhibit himself from a case. But in cases decided in 1961 and 1962, a judge was allowed to inhibit for fear that an opinion expressed by him in a letter as counsel might influence his decision and for being related to a counsel within 4th civil degree. In 1967, a judge was allowed to voluntarily disqualify himself on grounds other than those mentioned in par. 1 of cited section. Pimentel v. Salanga: Judge should make a careful selfexamination whether to disqualify himself or not in a case before him. He should exercise his discretion in a way that people’s faith in the courts of justice is not impaired. A salutary norm is that he reflect on the probability that a losing party might nurture at the back of his mind the thought that the judge had unmeritoriously titled the scales of justice against him. Judge should be commended for heeding SC ruling in Geotina v. Gonzales: A judge, sitting on a case must at all times be fully free, disinterested, impartial and independent. Elementary due process requires a hearing before an impartial and disinterested tribunal. A judge has both the duties of rendering a just decision and of doing it in a manner completely free from suspicion as to his fairness and as to his integrity. Mater, Jr. v. Hon. Onofre Villaluz: Outside of pecuniary interest, relationship or previous participation in the matter that calls for adjudication, there may be other causes that could conceivably erode trait of objectivity, thus calling for inhibition. If such causes appear and prove difficult to resist, it is better for judge to disqualify himself. That way, his reputation for probity and objectivity is preserved; even more important, ideal of an administration of justice is lived up to.

LEGAL PROFESSION & ETHICS

Sec. 1. Judges shall be aware of, and understand, diversity in society and differences arising from various sources, including but not limited to race, color, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status and other like causes. Sec. 2. Judges shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice towards any person or group on irrelevant grounds. Sec. 3. Judges shall carry out judicial duties with appropriate consideration for all persons, such as the parties, witnesses, lawyers, court staff and judicial colleagues, without differentiation on any irrelevant ground, immaterial to the proper performance of such duties. Sec. 4. Judges shall not knowingly permit court staff or others subject to his or her influence, direction or control to differentiate between persons concerned, in a matter before the judge, on any irrelevant ground. Sec. 5. Judges shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on irrelevant grounds, except such as are legally relevant to an issue in proceedings and may be the subject of legitimate advocacy. RE: SEC. 2 BIAS OR PREJUDICE  In re Judge Rojas (1998) F: This case refers to the inhibition which Respondent Judge Rojas of the RTC issued, in Crim Case entitled People vs. Tauro. Initially, the case was tried in the RTC, with Judge Rojas as public prosecutor. While the case was pending, Rojas was appointed judge. The original counsel for the accused did not interpose any objection, so Judge Rojas tried the case. On April 13, 1998, he decided to inhibit himself. In his explanation, he said that to avoid legal implications, he has to voluntarily inhibit himself. The Court found that it was impropert for Judge Rojas to have heard the criminal case at all. H: No. Rule 137 § 1 of the Rules of Court expressly states that no judge shall sit in any case which he has been counsel (for a party) without the

written consent of all parties in interest, signed by them and entered upon the record. Black’s Law Dictionary defines to “sit” in a case means “to hold court; to do any act of judicial nature. To hold a session, as of a court, grand jury, legislative body, etc. The prohibition is not limited to cases in which a judge hears the evidence but includes as well cases where he acts by resolving motions, issuing orders and the like as Judge Rojas has done in the criminal case.F or almost one and a half years, he issued various orders resetting the dates of the hearing and of the reception of additional evidence for the prosecution and for the defense. Undoubtedly, these acts, he sat and acted on the case. The failure of Judge Rojas to observe these elementary rules of judicial conduct betrays his interest in the case which he allowed to prevail over his sworn duty to administer the law impartially without any fear or favor. RE: SEC. 5 ATTITUDE – PARTIES APPEARING IN COURT  In re Aguas (1901) F: While on witness stand, Atty Aguas’ witness was allegedly seized by the Judge after the witness failed to heed the Judge’s warning he should look at Judge instead of at Atty. Aguas while testifying. In view of this, Aguas allegedly protested “with a voice and body trembling.” The Judge held him Atty. Aguas in contempt. The SC found that the Judge had acted improperly towards Aguas’ witness. H: The action of the judge in seizing the witness, Alberto Angel, by the shoulder and turning him about was unwarranted and an interference with that freedom from unlawful personal violence to which every witness is entitled while giving testimony in a court of justice. Against such conduct the appellant had the right to protest and to demand that the incident be made a matter of record. That he did so was not contempt, providing protest and demand were respectfully made and with due regard for the dignity of the court. CANON 6 COMPETENCE AND DILIGENCE  Canon. 6. Competence and diligence prerequisites to the due performance of judicial office.

are

Sec. 1. The judicial duties of a judge take precedence over all other activities. Sec. 2. Judges shall devote their professional activity to judicial duties, which include not only the performance of judicial functions and responsibilities in court and the making of decisions, but also other tasks relevant to the judicial office or the court's operations. Sec. 3. Judges shall take reasonable steps to maintain and enhance their knowledge, skills and personal qualities necessary for the proper performance of judicial duties, taking 113

SIGMA LEGIS COPY

 Canon 5. Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office.

LEGAL PROFESSION & ETHICS

Sec. 4. Judges shall keep themselves informed about relevant developments of international law, including international conventions and other instruments establishing human rights norms. Sec. 5. Judges shall perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly and with reasonable promptness. Sec. 6. Judges shall maintain order and decorum in all proceedings before the court and be patient, dignified and courteous in relation to litigants, witnesses, lawyers and others with whom the judge deals in an official capacity. Judges shall require similar conduct of legal representatives, court staff and others subject to their influence, direction or control. Sec. 7. Judges shall not engage in conduct incompatible with the diligent discharge of judicial duties. RE: SEC. 2 ADMINISTRATIVE DUTIES  Longboan v. Polig (1990) F: A letter-complaint was addressed to the Court Administrator charging Judge Polig with gross negligence of duty or abuse of authority for his failure to apprise complainant of the status of Civil Case No. 641 despite the former's registered letters requesting the status. Meanwhile, Longbuan had sent five registered letters inquiring about the status of Civil Case No. 641. Due to respondent Judge's failure to make any reply as requested, the Office of the Court Administrator sent respondent judge three tracers in relation to the records of Civil Case No. 641. Still, the respondent judge made no reply. The SC found the respondent judge guilty of gross negligence of duty and dismissed him from the service. H: Respondent judge's continued silence as to the status of Civil Case No. 641 despite repeated written queries from one of the parties, his failure to reply to the tracers of the Office of the Court Administrator, and his willful disobedience and disregard to our show-cause resolutions constituted grave and serious misconduct affecting his fitness and the worthiness of the honor and integrity attached to his office. Once again, we hold with great emphasis that: ...The Judge is the visible representation of the law of justice. From him, the people draw their will

and awareness to obey the law ..." How can the respondent judge expect others to respect the law when he himself cannot obey orders as simple as the show cause resolution? Moreover, it is not enough that the complaining litigant was eventually appeased by the turn of circumstances. What is more important is whether or not in the course of the judicial process, judicial norms have been maintained. It is with this end in view that we stress diligence and efficiency attendant to the discharge of a judge's function in the present Code of Judicial Conduct. Canon 3, Rule 3.08, of the said Code provides that: A judge should diligently discharge administrative responsibilities, maintain professional competence in court management and facilitate the performance of the administrative functions of other judges and court personnel. In the instant case, respondent judge even impeded the speedy disposition of cases by his successor on account of missing records of cases. This fact reflects an inefficient and disorderly system in the recording of cases assigned to his sala. Proper and efficient court management is as much the judge's responsibility for the Court personnel are not the guardians of a Judge's responsibilities. With respect to the inventoried 4 criminal cases without prisoners and four 4 civil cases missing, we find no justification for the failure to present them to the Deputy Court Administrator when required and their absence from the place where court records are stored. A judge is expected to ensure that the records of cases assigned to his sala are intact. There is no justification for missing records save fortuitous events. The loss of not one but eight records is indicative of gross misconduct and inexcusable negligence unbecoming of a judge. For true professionalism in the bench to exist, judges whose acts demoralize the ethical standards of a judicial office and whose acts demonstrate unfitness and unworthiness of the prestige and prerequisites attached to said office must be weeded out. Lastly, the report on the physical inventory of the records of the cases in RTC, Branch 14, Lagawe, Ifugao, which was respondent judge's last assignment before his suspension revealed that a total of 35 cases submitted for decision have remained unresolved beyond the 90-day reglementary period. We have consistently held that failure to decide a case within the required period is not excusable and constitutes gross inefficiency. RE: SEC. 3 MAINTAIN PROFESSIONAL COMPETENCE  In re Judge Baltazar Dizon (1989) F: This is a motion for reconsideration filed by respondent Judge Dizon praying that the resolution, finding him guilty of rendering an erroneous decision, be reconsidered. Dizon ruled that the state must first prove criminal intent to find the accused, Lo Chi Fai, guilty of a violation of a Central Bank Circular. He also ordered the return of the seized foreign currency from the accused. This Court pointed out that in offenses punished by special laws, proof of malice or deliberate intent is not necessary. Respondent manifestly disregarded and failed to apply this plain and fundamental basic principle. 114

SIGMA LEGIS COPY

advantage for this purpose of the training and other facilities which should be made available, under judicial control, to judges.

LEGAL PROFESSION & ETHICS Respondent admits that his decision is erroneous but pleads that his mistaken judgment proceeded from good faith and not from deliberate desire to pervert his position. The fact that the penalty prescribed by the circular was taken from the RPC led him to believe that malice was an essential element Respondent also stated that the overloaded dockets of Metro Manila trial judges caused unceasing strain.

study of the law and court decisions. The records fail to show malice, ill-will or even bias on part of the respondent judge. A judicial officer cannot be called to account in a civil action for acts done by him in the exercise of his judicial function, however erroneous.

H: In a court resolution, the SC stated that no judge can be held to account for an erroneous decision rendered by him in good faith. However, his act remains unjustified. While the court does not require perfection and infallibility, it reasonably expects a faithful and intelligent discharge of duty by those who are selected to fill the positions of administrators of justice. Respondent judge has sincerely evinced a humble repentance and prays for a reconsideration of the resolution. Thus, we feel that he has been sufficiently punished for his administrative infraction.

 Aquino v. Lontok (1990) supra at Canon 3, Sec. 8

RE: SEC. 5 PROMPT DECISION MAKING

ANNEXED CODES OF ETHICS CODE OF PROFESSIONAL RESPONSIBILITY (June 21, 1988) CHAPTER I THE LAWYER AND SOCIETY CANON 1

H: Judge Bleza appreciated as mitigating circumstance the lack of intent to kill in favor of Sabater is palpably out of place. Presumably, what respondent had in mid was to consider the mitigating circumstance of lack of intention to commit so grave a wrong as that committed under Art. 13 of the RPC…this is different from lack of intent to kill. As a matter of public policy, in the absence of fraud, dishonesty, or corruption, the acts of a judge in his judicial capacity are not subject to disciplinary action, even though such acts are erroneous. Yet it is highly imperative that they should be controverted with basic legal principles. They are called upon to exhibit more than just a cursory acquaintance with statutes and to keep themselves abreast of the latest laws, rulings, jurisprudence affecting their jurisdiction. Even in the remaining years of his stay in the judiciary, he should keep abreast with the changes in the law and with the latest decisions and precedents. Although a judge is nearing retirement, he should not relax in his

A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal processes. Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct Rule 1.02. A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. Rule 1.03. A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man’s cause. Rule 1.04. A lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement. CANON 2 A lawyer shall make his legal services available in an efficient and convenient manner compatible with the independence, integrity and effectiveness of the profession. Rule 2.01. A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed. Rule 2.02. In such cases, even if the lawyer doe not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary to safeguard the latter’s rights. Rule 2.03. A lawyer shall not do or permit to be done any act designed primarily to solicit legal business. Rule 2.04. A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant. CANON 3 A lawyer in making known his legal services shall use only true, honest, fair, dignifies and objective information or statement of facts.

115

SIGMA LEGIS COPY

 Abad v. Bleza (1986) F: The administrative case arose out of a case that Bleza decided, where complainant Col. Gregorio Abad and a certain Potenciano Ponce were petitioners and defendants in a criminal case. Based on testimonies and evidence, Judge Bleza acquitted Ponce for attempted homicide, and charged Sabater guilty of Frustrated Homicide. According to the investigation of the IAC, they found that Bleza has not committed any wrongdoing to evoke disciplinary action. The acquittal was based on insufficiency of evidence. The SC held that Judge Bleza was not incompetent in deciding the cases before him.

LEGAL PROFESSION & ETHICS Rule 3.01. A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement of claim regarding his qualifications of legal services. Rule 3.02. 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 3.03. 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 law concurrently. Rule 3.04. A lawyer shall not pay or give anything of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business. CANON 4 A lawyer shall participate in the development of the legal system by initiating or supporting efforts in law reform and in the improvement of the administration of justice.

or private life, behave in a scandalous manner to the discredit of the legal profession. CANON 8 A lawyer shall conduct himself with courtesy, fairness and candor toward his professional colleagues, and shall avoid harassing tactics against opposing counsel. Rule 8.01. A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper. Rule 8.02. A lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer; however, it is the right of any lawyer, without fear or favor, to give proper advise and assistance to those seeking relief against unfaithful or neglectful counsel. CANON 9 A lawyer shall not, directly or indirectly, assist in the unauthorized practice of law. Rule 9.01. A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the bar in good standing.

CANON 5

CANON 6 These canons shall apply to lawyers in government service in the discharge of their official tasks. Rule 6.01. The primary duty of a lawyer engaged in public prosecution is not to convict but to see that justice is done. The suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause of disciplinary action. Rule 6.02. A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties.

Rule 9.02. A lawyer shall not divide or stipulate to divide a fee for legal services with persons not licensed to practice law, except: a)

b) c)

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 the persons specified in the agreement; or Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; or Where a lawyer or law firm includes non-lawyer employees in a retirement plan, even if the plan is based in whole or in part, on a profitsharing agreement.

CANON 10 A lawyer owes candor, fairness and good faith to the court Rule 10.01. A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall he mislead, or allow the Court to be mislead by any artifice.

Rule 6.03. A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened in said service.

Rule 10.02. A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, of the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved.

CHAPTER II THE LAWYER AND THE LEGAL PROFESSION

Rule 10.03. A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice.

CANON 7

CANON 11

A lawyer shall at all times uphold the integrity and dignity of the legal profession and support the activities of the integrated bar.

A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduce by others.

Rule 7.01. A lawyer shall be answerable for knowingly making a false statement or suppressing a material fact, in connection with his application for admission to the bar.

Rule 11.01. A lawyer shall appear in court property attired.

Rule 7.02. A lawyer shall not support the application for admission to the bar of any person known by him to be unqualified in respect to character, education, or other relevant attribute.

Rule 11.03. A lawyer shall abstain from scandalous offensive or menacing language or behavior before the Courts.

Rule 7.03. A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law nor shall he, whether in public

Rule 11.02. A lawyer shall punctually appear at court hearings.

Rule 11.04. A lawyer shall not attribute to a Judge motives not supported by the record or have no materiality to the case. 116

SIGMA LEGIS COPY

A lawyer shall keep abreast of legal developments, participate in continuing legal education programs, support efforts to achieve high standards in law schools as well as in the practical training of law students and assist in disseminating information regarding the law and jurisprudence.

LEGAL PROFESSION & ETHICS Rule 11.05. A lawyer shall submit grievances against a Judge to the proper authorities only.

Rule 14.01. A lawyer shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life, or because of his own opinion regarding the guilt of said person

CANON 12

Rule 12.01. 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 well adduce and the order of its profference. He should also be ready with the original documents for comparison with the copies. Rule 12.02. A lawyer shall not file multiple actions arising from the same cause. Rule 12.03. A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so. Rule 12.04. A lawyer shall not unduly delay a case, impede the execution of a judgement or misuse Court processes. Rule 12.05. A lawyer shall refrain from talking to this witness during a break or recess in the trial, while the witness is still under examination. Rule 12.06. A lawyer shall not knowingly assist a witness to misrepresent himself or to impersonate another. Rule 12.07. A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him. Rule 12.08. A lawyer shall avoid testifying in behalf of his client, except: a) on formal matters, such as the mailing, authentication or custody of an instrument, and the like; or b) on substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel. CANON 13 A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court. Rule 13.01. A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for, cultivating familiarity with Judges. Rule 13.02. 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 13.03. A lawyer shall not brook or invite interference by another branch or agency of the government in the normal course of judicial proceedings. CHAPTER IV THE LAWYER AND THE CLIENT CANON 14 A lawyer shall not refuse his services to the needy.

Rule 14.02. A lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de oficio or as amicus curiae, or a request from the IBP or any of its chapters for rendition of free legal aid. Rule 14.03. A lawyer may not refuse to accept representation of an indigent unless: a) he is in no position to carry out the work effectively or competently b) he labours under a conflict of interest between him and the prospective client or between a present client and the prospective client Rule 14.04. A lawyer who accepts the cause of a person unable to pay his professional fees shall observe the same standard of conduct governing his relations with paying clients. CANON 15 A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his clients. Rule 15.01. 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 15.02. A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client. Rule 15.03. A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts. Rule 15.04. A lawyer may, with the written consent of all concerned, act as a mediator, conciliator or arbitrator in settling disputes. Rule 15.05. A lawyer, when advising his client shall give a candid and honest opinion on the merits and probable results of the client’s case, neither overstating nor understating the prospects of the case. Rule 15.06. A lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body. Rule 15.07. A lawyer shall impress upon his client compliance with the laws and the principles of fairness. Rule 15.08. A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity. CANON 16 A lawyer shall hold in trust all moneys and properties of his client that may come to his possession. Rule 16.01. A lawyer shall account for all money or property collected or received for or from the client. Rule 16.02. A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him. Rule 16.03. A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgements and executions he has secured for his client as provided in the RoC. 117

SIGMA LEGIS COPY

A lawyer shall exert every effort and consider it his duty to assist in the speedy and efficient administration of justice.

LEGAL PROFESSION & ETHICS Rule 16.04. A lawyer shall not borrow money from his client unless the client’s interests are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client.

i) j)

The character of the employment, whether occasional or established; and The professional standing of the lawyer.

Rule 20.02. A lawyer shall, in case of referral, with the consent of the client, be entitled to a division of fees in proportion to the work performed and responsibility assumed.

CANON 17 A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him.

Rule 20.03. A lawyer shall not, without the full knowledge and consent of the client, accept any fee, reward, costs, commission, interest, rebate or forwarding allowance or other compensation whatsoever related to his professional employment from anyone other than the client.

CANON 18

Rule 18.01. A lawyer shall not undertake a legal service which he knows or should know that he is not qualified to render. However, he may render such service if, with the consent of his client, he can obtain as collaborating counsel a lawyer who is competent on the matter. Rule 18.02. A lawyer shall not handle any legal matter without adequate preparation. Rule 18.03. A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. Rule 18.04. A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client's request for information. CANON 19 A lawyer shall keep represent his client with zeal within the bounds of the law. Rule 19.01. A lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding. Rule 19.02. A lawyer who has received information that his client has, in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he shall terminate the relationship with such client in accordance with the Rules of Court.

Rule 20.04. A lawyer shall avoid controversies with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice or fraud. CANON 21 A lawyer shall preserve the confidence and secrets of his client even after the attorney-client relation is terminated. Rule 21.01. A lawyer shall not reveal the confidences or secrets of his client except; a) When authorized by the client after acquainting him of the consequences of the disclosure; b) When required by law; c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action. Rule 21.02. A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto. Rule 21.03. A lawyer shall not, without the written consent of his client, give information from his files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or any similar purpose. Rule 21.04. A lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client. Rule 21.05. A lawyer shall adopt such measures as may be required to prevent those whose services are utilized by him, from disclosing or using confidences or secrets of the clients. Rule 21.06. A lawyer shall avoid indiscreet conversation about a client's affairs even with members of his family.

Rule 19.03. A lawyer shall not allow his client to dictate the procedure in handling the case.

Rule 21.07. A lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest.

CANON 20

CANON 22

A lawyer shall charge only fair and reasonable fees.

A lawyer shall withdraw his services only for a good cause and upon notice appropriate in the circumstances.

Rule 20.01. A lawyer shall be guided by the following factors in determining his fees. a) The time spent and the extent of the service rendered or required; b) The novelty and difficulty of the questions involved; c) The importance of the subject matter; d) The skill demanded; e) The probability of losing other employment as a result of acceptance of the proffered case; f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs; g) The amount involved in the controversy and the benefits resulting to the client from the service; h) The contingency or certainty of compensation;

Rule 22.01. A lawyer may withdraw his services in any of the following case: a) When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling; b) When the client insists that the lawyer pursue conduct violative of these canons and rules; c) When his inability to work with co-counsel will not promote the best interest of the client; d) When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively; e) When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement; f) When the lawyer is elected or appointed to public office; and g) Other similar cases. 118

SIGMA LEGIS COPY

A lawyer shall serve his client with competence and diligence.

LEGAL PROFESSION & ETHICS

A.M. No. 03-05-01-SC ADOPTING THE NEW CODE OF JUDICIAL CONDUCT FOR THE PHIL. JUDICIARY (June 1, 2004) WHEREAS, at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, on 25-26 November 2002, at which the Philippine Supreme Court was represented by the Chief Justice and Associate Justice Reynato S. Puno, the Bangalore Draft of the Code of Judicial Conduct adopted by the Judicial Group on Strengthening Judicial Integrity was deliberated upon and approved after incorporating therein several amendments; WHEREAS, the Bangalore Draft, as amended, is intended to be the Universal Declaration of Judicial Standards applicable in all judiciaries; WHEREAS, the Bangalore Draft is founded upon a universal recognition that a competent, independent and impartial judiciary is essential if the courts are to fulfill their role in upholding constitutionalism and the rule of law; that public confidence in the judicial system and in the moral authority and integrity of the judiciary is of utmost importance in a modern democratic society; and that it is essential that judges, individually and collectively, respect and honor judicial office as a public trust and strive to enhance and maintain confidence in the judicial system; WHEREAS, the adoption of the universal declaration of standards for ethical conduct of judges embodied in the Bangalore Draft as revised at the Round Table Conference of Chief Justices at The Hague is imperative not only to update and correlate the Code of Judicial Conduct and the Canons of Judicial Ethics adopted for the Philippines, but also to stress the Philippines' solidarity with the universal clamor for a universal code of judicial ethics. Now, THEREFORE, the Court hereby adopts this New Code of Judicial Conduct for the Philippine Judiciary: CANON 1 INDEPENDENCE Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects. Sec. 1. Judges shall exercise the judicial function independently on the basis of their assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influence, inducement, pressure, threat or interference, direct or indirect, from any quarter or for any reason. Sec. 2. In performing judicial duties, Judges shall be independent from judicial colleagues in respect of decisions which the judge is obliged to make independently. Sec. 3. Judges shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court or administrative agency. Sec. 4. Judges shall not allow family, social, or other relationships to influence judicial conduct or judgment. The prestige of judicial

office shall not be used or lent to advance the private interests of others, nor convey or permit others to convey the impression that they are in a special position to influence the judge. Sec. 5. Judges shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to be free therefrom to a reasonable observer. . Sec. 6. Judges shall be independent in relation to society in general and in relation to the particular parties to a dispute which he or she has to adjudicate. Sec. 7. Judges shall encourage and uphold safeguards for the discharge of judicial duties in order to maintain and enhance the institutional and operational independence of the judiciary. Sec. 8. Judges shall exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary which is fundamental to the maintenance of judicial independence. CANON 2 INTEGRITY Integrity is essential not only to the proper discharge of the judicial office but also to the personal demeanor of judges. Sec. 1. Judges shall ensure that not only is their conduct above reproach, but that it is perceived to be so in the view of a reasonable observer. Sec. 2. The behavior and conduct of judges must reaffirm the people's faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done. Sec. 3. Judges should take or initiate appropriate disciplinary measures against lawyers or court personnel for unprofessional conduct of which the judge may have become aware. CANON 3 IMPARTIALITY Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made. Sec. 1. Judges shall perform their judicial duties without favor, bias or prejudice. Sec. 2. Judges shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary. Sec. 3. Judges shall, so far as is reasonable, so conduct themselves as to minimize the occasions on which it will be necessary for them to be disqualified from hearing or deciding cases. Sec. 4. Judges shall not knowingly, while a proceeding is before, or could come before, them make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process. Nor shall judges make any comment in public or otherwise that might affect the fair trial of any person or issue. Sec. 5. Judges shall disqualify themselves from participating in any proceedings in which they are unable to decide the matter impartially or in which it may appear to a reasonable observer that they are unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where (h) The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings; (i) The judge previously served as a lawyer or was a material witness in the matter in controversy; (j) The judge, or a member of his or her family, has an economic interest in the outcome of the matter in controversy; 119

SIGMA LEGIS COPY

Rule 22.02. A lawyer who withdraws or is discharged shall, subject to a retainer lien, immediately turn over all papers and property to which the client is entitled, and shall cooperative with his successor in the orderly transfer of the matter, including all information necessary for the proper handling of the matter.

LEGAL PROFESSION & ETHICS (k) The judge served as executor, administrator, guardian, trustee or lawyer in the case or matter in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein; (l) The judge's ruling in a lower court is the subject of review; (m) The judge is related by consanguinity or affinity to a party litigant within the sixth civil degree or to counsel within the fourth civil degree; or (n) The judge knows that his or her spouse or child has a financial interest, as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceedings;

Sec. 9. Confidential information acquired by judges in their judicial capacity shall not be used or disclosed by for any other purpose related to their judicial duties. Sec. 10. Subject to the proper performance of judicial duties, judges may (d) Write, lecture, teach and participate in activities concerning the law, the legal system, the administration of justice or related matters; (e) Appear at a public hearing before an official body concerned with matters relating to the law, the legal system, the administration of justice or related matters; (f) Engage in other activities if such activities do not detract from the dignity of the judicial office or otherwise interfere with the performance of judicial duties. Sec. 11. Judges shall not practice law whilst the holder of judicial office.

CANON 4 PROPRIETY Propriety and the appearance of propriety are essential to the performance of all the activities of a. judge. Sec. 1. Judges shall avoid impropriety and the appearance of impropriety in all of their activities. Sec. 2. As a subject of constant public scrutiny, judges must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In particular, judges shall conduct themselves in a way that is consistent with the dignity of the judicial office. Sec. 3. Judges shall, in their personal relations with individual members of the legal profession who practice regularly in their court, avoid situations which might reasonably give rise to the suspicion or appearance of favoritism or partiality. Sec. 4. Judges shall not participate in the determination of a case in which any member of their family represents a litigant or is associated in any manner with the case. Sec. 5. Judges shall not allow the use of their residence by a member of the legal profession to receive clients of the latter or of other members of the legal profession. Sec. 6. Judges, like any other citizen, are entitled to freedom of expression, belief, association and assembly, but in exercising such rights, they shall always conduct themselves in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary. Sec. 7. Judges shall inform themselves about their personal fiduciary financial interests and shall make reasonable efforts to be informed about the financial interests of members of their family. Sec. 8. Judges shall not use or lend the prestige of the judicial office to advance their private interests, or those of a member of their family or of anyone else, nor shall they convey or permit others to convey the impression that anyone is in a special position improperly to influence them in the performance of judicial duties.

Sec. 12. Judges may form or join associations of judges or participate in other organizations representing the interests of judges. Sec. 13. Judges and members of their families shall neither ask for, nor accept, any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done by him or her in connection with the performance of judicial duties. Sec. 14. Judges shall not knowingly permit court staff or others subject to their influence, direction or authority, to ask for, or accept, any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done in connection with their duties or functions. Sec. 15. Subject to law and to any legal requirements of public disclosure, judges may receive a token gift, award or benefit as appropriate to the occasion on which it is made provided that such gift, award or benefit might not reasonably be perceived as intended to influence the judge in the performance of judicial duties or otherwise give rise to an appearance of partiality. CANON 5 EQUALITY Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office. Sec. 1. Judges shall be aware of, and understand, diversity in society and differences arising from various sources, including but not limited to race, color, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status and other like causes. Sec. 2. Judges shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice towards any person or group on irrelevant grounds. Sec. 3. Judges shall carry out judicial duties with appropriate consideration for all persons, such as the parties, witnesses, lawyers, court staff and judicial colleagues, without differentiation on any irrelevant ground, immaterial to the proper performance of such duties. Sec. 4. Judges shall not knowingly permit court staff or others subject to his or her influence, direction or control to differentiate between persons concerned, in a matter before the judge, on any irrelevant ground. Sec. 5. Judges shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on irrelevant grounds, except such as are legally relevant to an issue in proceedings and may be the subject of legitimate advocacy. CANON 6 COMPETENCE AND DILIGENCE Competence and diligence are prerequisites to the due performance of judicial office. 120

SIGMA LEGIS COPY

Sec. 6. A judge disqualified as stated above may, instead of withdrawing from the proceeding, disclose on the records the basis of disqualification. If, based on such disclosure, the parties and lawyers independently of the judge's participation, all agree in writing that the reason for the inhibition is immaterial or unsubstantial, the judge may then participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceedings.

LEGAL PROFESSION & ETHICS Sec. 1. The judicial duties of a judge take precedence over all other activities.

Sec. 3. Judges shall take reasonable steps to maintain and enhance their knowledge, skills and personal qualities necessary for the proper performance of judicial duties, taking advantage for this purpose of the training and other facilities which should be made available, under judicial control, to judges. Sec. 4. Judges shall keep themselves informed about relevant developments of international law, including international conventions and other instruments establishing human rights norms. Sec. 5. Judges shall perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly and with reasonable promptness. Sec. 6. Judges shall maintain order and decorum in all proceedings before the court and be patient, dignified and courteous in relation to litigants, witnesses, lawyers and others with whom the judge deals in an official capacity. Judges shall require similar conduct of legal representatives, court staff and others subject to their influence, direction or control. Sec. 7. Judges shall not engage in conduct incompatible with the diligent discharge of judicial duties. DEFINITIONS In this Code, unless the context otherwise permits or requires, the following meanings shall be attributed to the words used: "Court staff" includes the personal staff of the judge including law clerks. "Judge" means any person exercising judicial power, however designated. "Judge's family" includes a judge's spouse, son, daughter, son-inlaw, daughter-in-law, and any other relative by consanguinity or affinity within the sixth civil degree, or person who is a companion or employee of the judge and who lives in the judge's household. This Code, which shall hereafter be referred to as the New Code of Judicial Conduct for the Philippine Judiciary, supersedes the Canons of Judicial Ethics and the Code of Judicial Conduct heretofore applied in the Philippines to the extent that the provisions or concepts therein are embodied in this Code: Provided, however, that in case of deficiency or absence of specific provisions in this New Code, the Canons of Judicial Ethics and the Code of Judicial Conduct shall be applicable in a suppletory character. This New Code of Judicial Conduct for the Philippine Judiciary shall take effect on the first day of June 2004, following its publication not later than 15 May 2004 in two newspapers of large circulation in the Philippines to ensure its widest publicity. Promulgated this 27th day of April 2004. ANNEXED RULES OF COURT

RULE 138 ATTORNEYS AND ADMISSION TO BAR

[As amended by SC Resolutions dated May 20, 1968 and February 13, 1992.] Sec 1. 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. 2. Requirements for all applicants for admission to the bar.—Every applicant for admission as a member of the bar must be a citizen of the Philippines, at least twenty-one years of age, of good moral character, and a resident of the Philippines; and must produce before the Supreme Court satisfactory evidence of good moral character, and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines. Sec. 3. Requirements for lawyers who are citizens of the United States of America.—Citizens of the USA who, before July 4, 1946, were duly licensed members of the Philippine Bar, in active practice in the courts of the Philippines and in good and regular standing as such may, upon satisfactory proof of those facts before the Supreme Court, be allowed to continue such practice after taking the following oath of office: "I, _________________________, having been permitted to continue in the practice of law in the Philippines, do solemnly swear that I recognize the supreme authority of the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the courts as to my clients; and I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God." Sec. 4. Requirements for applicants from other jurisdictions.—Applicants for admission who, being Filipino citizens, are enrolled attorneys in good standing in the Supreme Court of the United States or in any circuit court of appeals or district court therein, or in the highest court of any State or Territory of the United States, and who can show by satisfactory certificates that they have practiced at least five years in any of said courts, that such practice began before July 4, 1946, and that they have never been suspended or disbarred, may, in the discretion of the Court, be admitted without examination. Sec. 5. Additional requirements for other applicants.—All applicants for admission other than those referred to in the two preceding sections shall, before being admitted to the examination, satisfactorily show that they have regularly studied law for four years, and successfully completed all prescribed courses, in a law school or university, officially approved and recognized by the Secretary of Education. The affidavit of the candidate, accompanied by a certificate from the university or school of law, shall be filed as evidence of such facts, and further evidence may be required by the court. No applicant shall be admitted to the bar examinations unless he has satisfactorily completed the following courses in a law school or university duly recognized by the government: civil law, commercial law, remedial law, criminal law, public and private international law, political law, labor and social legislation, medical jurisprudence, taxation and legal ethics. Sec. 6. Pre-Law.—No applicant for admission to the bar examination shall be admitted unless he presents a certificate that he has satisfied the Secretary of Education that, before he began the study of law, he had pursued and satisfactorily completed in an authorized and recognized university or college, requiring for admission thereto the completion of a four-year high school course, the course of study prescribed therein for a bachelor's degree in arts or sciences with any of the following subjects as major or field of concentration: political science, logic, english, spanish, history and economics. Sec. 7. Time for filing proof of qualifications.—All applicants for admission shall file with the clerk of the Supreme Court the evidence required by section 2 of 121

SIGMA LEGIS COPY

Sec. 2. Judges shall devote their professional activity to judicial duties, which include not only the performance of judicial functions and responsibilities in court and the making of decisions, but also other tasks relevant to the judicial office or the court's operations.

LEGAL PROFESSION & ETHICS this rule at least 15 days before the beginning of the examination. If not embraced within sections 3 and 4 of this rule they shall also file within the same period the affidavit and certificate required by section 5, and if embraced within sections 3 and 4 they shall exhibit a license evidencing the fact of their admission to practice, satisfactory evidence that the same has not been revoked, and certificates as to their professional standing. Applicants shall also file at the same time their own affidavits as to their age, residence, and citizenship.

Sec. 14. Passing average.—In order that a candidate may be deemed to have passed his examinations successfully, he must have obtained a general average of 75 % in all subjects, without falling below 50 % in any subject. In determining the average, the subjects in the examination shall be given the following relative weights: Civil Law, 15 %; Labor and Social Legislation, 10 %; Mercantile Law, 15 %; Criminal Law; 10 %; Political and International Law, 15 %; Taxation, 10 %; Remedial Law, 20 %; Legal Ethics and Practical Exercises, 5 %.

Sec. 8. Notice of applications.—Notice of applications for admission shall be published by the clerk of the Supreme Court in newspapers published in Pilipino, English and Spanish, for at least 10 days before the beginning of the examination.

Sec. 15. Report of the committee; filing of examination papers.—Not later than February 15th after the examination, or as soon thereafter as may be practicable, the committee shall file its reports on the result of such examination. The examination papers and notes of the committee shall be fixed with the clerk and may there be examined by the parties in interest, after the court has approved the report.

Sec. 10. Bar examination, by questions and answers, and in writing.—Persons taking the examination shall not bring papers, books or notes into the examination rooms. The questions shall be the same for all examinees and a copy thereof, in English or Spanish, shall be given to each examinee. Examinees shall answer the questions personally without help from anyone. Upon verified application made by an examinee stating that his penmanship is so poor that it will be difficult to read his answers without much loss of time, the Supreme Court may allow such examinee to use a typewriter in answering the questions. Only noiseless typewriters shall be allowed to be used. The committee of bar examiners shall take such precautions as are necessary to prevent the substitution of papers or commission of other frauds. Examinees shall not place their names on the examination papers. No oral examination shall be given. Sec. 11. Annual examination.—Examinations for admission to the bar of the Philippines shall take place annually in the City of Manila. They shall be held in four days to be designated by the chairman of the committee on bar examiners. The subjects shall be distributed as follows: 1st day: Political and International Law (morning) and Labor and Social Legislation (afternoon); 2nd day: Civil Law (morning) and Taxation (afternoon); 3rd day: Mercantile Law (morning) and Criminal Law (afternoon); 4th day: Remedial Law (morning) and Legal Ethics and Practical Exercises (afternoon). Sec. 12. Committee of examiners.—Examinations shall be conducted by a committee of bar examiners to be appointed by the Supreme Court. This committee shall be composed of a Justice of the Supreme Court, who shall act as chairman, and who shall be designated by the court to serve for one year, and eight members of the bar of the Philippines, who shall hold office for a period of one year. The names of the members of this committee shall be published in each volume of the official reports. Sec. 13. Disciplinary measures.—No candidate shall endeavor to influence any member of the committee, and during examination the candidates shall not communicate with each other nor shall they give or receive any assistance. The candidate who violates this provision, or any other provision of this rule, shall be barred from the examination, and the same to count as a failure against him, and further disciplinary action, including permanent disqualification, may be taken in the discretion of the court.

Sec. 16. Failing candidates to take review course.—Candidates who have failed the bar examinations for three times shall be disqualified from taking another examination unless they show to the satisfaction of the court that they have enrolled in and passed regular fourth year review classes as well as attended a pre-bar review course in a recognized law school. The professors of the individual review subjects attended by the candidates under this rule shall certify under oath that the candidates have regularly attended classes and passed the subjects under the same conditions as ordinary students and the ratings obtained by them in the particular subject. Sec. 17. Admission and oath of successful applicants.—An applicant who has passed the required examination, or has been otherwise found to be entitled to admission to the bar, shall take and subscribe before the Supreme Court the corresponding oath of office. Sec. 18. Certificate.—The SC shall thereupon admit the applicant as a member of the bar for all the courts of the Philippines, and shall direct an order to be entered to that effect upon its records, and that a certificate of such record be given to him by the clerk of court, which certificate shall be his authority to practice. Sec. 19. Attorneys' roll. - The clerk of the SC shall keep a roll of all attorneys admitted to practice, which roll shall be signed by the person admitted when he receives his certificate. Sec. 20. Duties of attorneys.--It is the duty of an attorney: j) To maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines; k) To observe and maintain the respect due to the courts of justice and judicial officers; l) To counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law; m) 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; n) To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client's business except from him or with his knowledge and approval; o) To abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged; p) 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; q) Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed; r) 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.

122

SIGMA LEGIS COPY

Sec. 9. Examination; subjects.—Applicants, not otherwise provided for in sections 3 and 4 of this rule, shall be subjected to examinations in the following subjects: Civil Law; Labor and Social Legislation; Mercantile Law; Criminal Law; Political Law (Constitutional Law, Public Corporations, and Public Officers); International Law (Private and Public); Taxation; Remedial Law (Civil Procedure, Criminal Procedure, and Evidence); Legal Ethics and Practical Exercises (in Pleading and Conveyancing).

LEGAL PROFESSION & ETHICS

Sec. 22. Attorney who appears in lower court presumed to represent client on appeal.—An attorney who appears de parte in a case before a lower court shall be presumed to continue representing his client on appeal, unless he files a formal petition withdrawing his appearance in the appellate court. Sec. 23. Authority of attorneys to bind clients.—Attorneys have authority to bind their clients in any case by any agreement in relation thereto made in writing, and in taking appeals, and in all matters of ordinary judicial procedure. But they cannot, without special authority, compromise their client's litigation, or receive anything in discharge of a client's claim but the full amount in cash. Sec. 24. Compensation of attorneys; agreement as to fees.—An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services, with a view to the importance of the subject matter of the controversy, the extent of the services rendered, and the professional standing of the attorney. No court shall be bound by the opinion of attorneys as expert witnesses as to the proper compensation, but may disregard such testimony and base its conclusion on its own professional knowledge. A written contract for services shall control the amount to be paid therefor unless found by the court to be unconscionable or unreasonable. Sec. 25. Unlawful retention of client's funds; contempt.—When an attorney unjustly retains in his hands money of his client after it has been demanded, he may be punished for contempt as an officer of the Court who has misbehaved in his official transactions; but proceedings under this section shall not be a bar to a criminal prosecution. Sec. 26. Change of attorneys.—An attorney may retire at any time from any action or special proceeding, by the written consent of his client filed in court. He may also retire at any time from an action or special proceeding, without the consent of his client, should the court, on notice to the client and attorney, and on hearing, determine that he ought to be allowed to retire. In case of substitution, the name of the attorney newly employed shall be entered on the docket of the court in place of the former one, and written notice of the change shall be given to the adverse party. A client may at any time dismiss his attorney or substitute another in his place, but if the contract between client and attorney has been reduced to writing and the dismissal of the attorney was without justifiable cause, he shall be entitled to recover from the client the full compensation stipulated in the contract. However, the attorney may, in the discretion of the court, intervene in the case to protect his rights. For the payment of his compensation the attorney shall have a lien upon all judgments for the payment of money, and executions issued in pursuance of such judgment, rendered in the case wherein his services had been retained by the client. Sec. 27. Attorneys removed or suspended by Supreme Court on what grounds.—A member of the bar may be removed or suspended from his office as attorney by the Supreme Court for

any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a wilfull disobedience of any lawful order of a superior court, or for corruptly or wilfully appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. Sec. 28. Suspension of attorney by the Court of Appeals or a Court of First Instance.—The Court of Appeals or a Court of First Instance may suspend an attorney from practice for any of the causes named in the last preceding section, and after such suspension such attorney shall not practice his profession until further action of the Supreme Court in the premises. Sec. 29. Upon suspension by Court of Appeals or Court of First Instance, further proceedings in Supreme Court.—Upon such suspension, the Court of Appeals or the Court of First Instance shall forthwith transmit to the Supreme Court a certified copy of the order or suspension and a full statement of the facts upon which the same was based. Upon the receipt of such certified copy and statement, the Supreme Court shall make full investigation of the facts involved and make such order revoking or extending the suspension, or removing the attorney from his office as such, as the facts warrant. Sec. 30. Attorney to be heard before removal or suspension.—No attorney shall be removed or suspended from the practice of his profession, until he has had full opportunity upon reasonable notice to answer the charges against him, to produce witnesses in his own behalf, and to be heard by himself or counsel. But if upon reasonable notice he fails to appear and answer the accusation, the court may proceed to determine the matter ex parte. Sec. 31. Attorneys for destitute litigants.—A court may assign an attorney to render professional aid free of charge to any party in a case, if upon investigation it appears that the party is destitute and unable to employ an attorney, and that the services of counsel are necessary to secure the ends of justice and to protect the rights of the party. It shall be the duty of the attorney so assigned to render the required service, unless he is excused therefrom by the court for sufficient cause shown. Sec. 32. Compensation for attorneys de oficio.—Subject to availability of funds as may be provided by law the court may, in its discretion, order an attorney employed as counsel de oficio to be compensated in such sum as the court may fix in accordance with section 24 of this rule. Whenever such compensation is allowed, it shall not be less than thirty pesos (P30.00) in any case, nor more than the following amounts: (1) Fifty pesos (P50.00) in light felonies; (2) One hundred pesos (P100.00) in less grave felonies; (3) Two hundred pesos (P200.00) in grave felonies other than capital offenses; (4) Five hundred pesos (P500.00) in capital offenses. Sec. 33. Standing in court of persons authorized to appear for Government.— Any official or other person appointed or designated in accordance with law to appear for the Government of the Philippines shall have all the rights of a duly authorized member of the bar to appear in any case in which said government has an interest direct or indirect. Sec. 34. By whom litigation conducted.—In the court of a 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 purpose, 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. Sec. 35. Certain attorneys not to practice.—No judge or other official or employee of the superior courts or of the Office of the Solicitor General, shall engage in private practice as a member of the bar or give professional advice to clients. Sec. 36. Amicus curiae.—The court may, in special cases, and upon proper application, permit the appearance, as amici curiae, of those lawyers who in its opinion can help in the disposition of the matter before it; or it may, on its own 123

SIGMA LEGIS COPY

Sec. 21. Authority of attorney to appear.—An attorney is presumed to be properly authorized to represent any cause in which he appears, and no written power of attorney is required to authorize him to appear in court for his client, but the presiding judge may, on motion of either party and on reasonable grounds therefor being shown, require any attorney who assumes the right to appear in a case to produce or prove the authority under which he appears, and to disclose, whenever pertinent to any issue, the name of the person who employed him, and may thereupon make such order as justice requires. An attorney wilfully appearing in court for a person without being employed, unless by leave of the court, may be punished for contempt as an officer of the court who has misbehaved in his official transactions.

LEGAL PROFESSION & ETHICS

Sec. 37. Attorneys' liens.—An attorney shall have a lien upon the funds, documents and papers of his client which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof. He shall also have a lien to the same extent upon all judgments for the payment of money, and executions issued in pursuance of such judgments, which he has secured in a litigation of his client, from and after the time when he shall have caused a statement of his claim of such lien to be entered upon the records of the court rendering such judgment, or issuing such execution, and shall have caused written notice thereof to be delivered to his client and to the adverse party; and he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his just fees and disbursements.

RULE 138-A LAW STUDENT PRACTICE RULE (Dec. 18, 1986) Sec 1. Conditions for student practice.—A law student who has successfully complete his 3rd year of the regular 4 year 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 law school. Sec 2. Appearance.—The appearance of the law student authorized by this rule, shall be under the direct supervision and control of a member of the IBP duly accredited by the law school. Any pleadings, motions, briefs, memoranda or other papers to be filed, must be signed by the supervising attorney for and in behalf of the legal clinic. Sec 3. Privileged Communication.—The Rules safeguarding privileged communications between attorney and client shall apply to similar communications made to or received by the law student, acting for the legal clinic. Sec 4. Standards of conduct and supervision.—The law student shall comply with the standards of professional conduct governing members of the Bar. Failure of an attorney to provide adequate supervision of student practice may be a ground for disciplinary action. RULE 139-B DISBARMENT & DISCIPLINE OF ATTORNEYS (June 1, 1988) [Outlined] A.

HOW INSTITUTED AND BY WHOM

Sec 1. How instituted. - Proceedings for disbarment, suspension or discipline of attorneys may be taken by the SC motu proprio, or by the IBP upon the verified complaint of any person. 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 said facts. The 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, initiate and prosecute proper charges against erring attorneys including those in the government service; Provided, however, that all charges against Justices of the Court of

Tax Appeals and the Sandiganbayan, and Judges of the Court of Tax Appeals and lower courts, even if lawyers are jointly charged with them, shall be filed with the Supreme Court; Provided, further, that charges filed against Justices and Judges before the IBP, including those filed prior to their appointment in the Judiciary, shall immediately be forwarded to the Supreme Court for disposition and adjudication. Six (6) copies of the verified complaint shall be filed with the Secretary of the IBP or the Secretary of any of its chapters who shall forthwith transmit the same to the IBP Board of Governors for assignment to an investigator. B.

GROUNDS

See Rule 138 Sec. 27 supra C.

PROCEEDINGS IN THE IBP 1.

Assignment to Investigator

Sec. 2. National Grievance Investigator. - The Board of Governors shall appoint from among IBP members an Investigator or, when special circumstances so warrant, a panel of 3 investigators to investigate the complaint. All Investigators shall take an oath of office in the form prescribed by the Board of Governors. A copy of the Investigator's appointment and oath shall be transmitted to the Supreme Court. An Investigator may be disqualified by reason of relationship within the 4th degree of consanguinity or affinity to any of the parties or their counsel, pecuniary interest, personal bias, or his having acted as counsel for either party, unless the parties sign and enter upon the record their written consent to his acting as such Investigator. Where the Investigator does not disqualify himself, a party may appeal to the IBP Board of Governors, which by majority vote of the members present, there being a quorum, may order his disqualification. Any Investigator may also be removed for cause, after due hearing, by the vote of at least 6 members of the IBP Board Governors. The decision of the Board of Governors in all cases of disqualification or removal shall be final. Sec. 3. Duties of the National Grievance Investigator. - The National Grievance Investigators shall investigate all complaint against members of the Integrated Bar referred to them by the IBP Board of Governors. Sec. 4. Chapter assistance to complainant. - The proper IBP Chapter may assist the complainant(s) in the preparation and filing of his complaint(s). 2.

Service on Respondent

Sec. 5. Service or dismissal. - If the complaint appears to be meritorious, the Investigator shall direct that a copy thereof be served upon the respondent, requiring him to answer the same within 15 days from the date of service. If the complaint does not merit action, or if the answer shows to the satisfaction of the Investigator that the complaint is not meritorious, the same may be dismissed by the Board of Governors upon his recommendation. A copy of the resolution of dismissal shall be furnished the complainant and the SC which may review the case motu proprio or upon timely appeal of the complainant filed within 15 days from notice of the dismissal of the complainant. No investigation shall be interrupted or terminated by reason of the (1) desistance, (2) settlement, (3) compromise, (4) restitution, (5) withdrawal of the charges, or (6) failure of the complainant to prosecute the same. 3.

Answer

Sec. 6. Verification and service of answer. - The answer shall be verified. The original and 5 legible copies of the answer shall be filed with the Investigator, with proof of service of a copy thereof on the complainant or his counsel. 4.

Investigation Proper

124

SIGMA LEGIS COPY

initiative, invite prominent attorneys to appear as amici curiae in such special cases.

LEGAL PROFESSION & ETHICS Sec. 7. Administrative counsel. - The IBP Board of Governors shall appoint a suitable member of the Integrated Bar as counsel to assist the complainant or the respondent during the investigation in case of need for such assistance.

Sec. 9. Depositions. - Depositions may be taken in accordance with the Rules of Court with leave of the investigator(s). Within the Philippines, depositions may be taken before any member of the Board of Governors, the President of any Chapter, or any officer authorized by law to administer oaths. Depositions may be taken outside the Philippines before a diplomatic or consular representative of the Philippine Government or before any person agreed upon by the parties or designated by the Board of Governors. Any suitable members of the Integrated Bar in the place where a deposition shall be taken may be designated by the Investigator to assist the complainant or the respondent in taking a deposition. 5.

Report

Sec. 10. Report of Investigator. - Not later than 30 days from the termination of the investigation, the Investigator shall submit a report containing his findings of fact and recommendations to the IBP Board of Governors, together with the stenographic notes and the transcripts thereof and all the evidence presented during the investigation. The submission of the report need not await the transcription of the stenographic notes, it being sufficient that the report reproduce substantially from the Investigator's personal notes any relevant and pertinent testimonies. Sec. 11. Defects. - No defect in a complaint, notice, answer, or in the proceeding or the Investigator's Report shall be considered as substantial unless the Board of Governors, upon considering the whole record, finds that such defect has resulted or may result in a miscarriage of justice, in which event the Board shall take such remedial action as the circumstance may warrant, including invalidation of the entire proceedings. 6

Decision or Review

Sec. 12. View and decision by the Board of Governors.— a. Every case heard by an investigator shall be reviewed by the IBP Board of Governors upon the record and evidence transmitted to it by the Investigator with his report. The

b.

c.

d.

D.

PROCEEDINGS IN THE SUPREME COURT

Sec. 13. Supreme Court Investigators. - In proceedings initiated motu proprio by the SC in other proceedings when the interest of justice so requires, the SC may refer the case for investigation to the Solicitor General or to any officer of the SC or judge of a lower court, in which case, the investigation shall proceed in the same manner provided in Sections 6 to 11 hereof, save that the review report of the investigation shall be conducted directly by the Supreme Court. Sec. 14. Report of the Solicitor General or other Court designated investigator. Based upon the evidence adduced at the investigation, the Solicitor General or other Investigator designated by the SC shall submit to the SC a resolution containing his findings of fact and recommendations together the record and all the evidence presented in the investigation for the final action of the SC. E.

EFFECTS

Sec. 15. Suspension of attorneys by Supreme Court. - After receipt of respondent's answer or lapse of the period therefor, the Supreme Court, motu proprio, or at the instance of the IBP Board of Governors upon the recommendation of the Investigator, may suspend an attorney from the practice of his profession for any of the causes specified in Rule 138, Section 27, during the pendency of the investigation until such suspension is lifted by the Supreme Court. Sec. 16. Suspension of attorney by the Court of Appeals or Regional Trial Court. The Court of Appeals or Regional Trial Court may suspend an attorney from practice for any of the causes named in Rule 138, Section 27, until further action of the Supreme Court in the case. Sec. 17. Upon suspension by Court of Appeals or Regional Trial Court, further proceedings in Supreme Court. - Upon such suspension, the Court of Appeals or a Regional Trial Court shall forthwith transmit to the Supreme Court a certified copy of the order of suspension and a full statement of the facts upon which the same was based. Upon receipt of such certified copy and statement, the Supreme Court shall make a full investigation of the case and may revoke, shorten or extend the suspension, or disbar the attorney as the facts may warrant. Sec. 18. Confidentiality. - Proceedings against attorneys shall be private and confidential. However, the final order of the Supreme Court shall be published like its decisions in other cases. Sec. 19. Expenses. - All reasonable and necessary expenses incurred in relation to disciplinary and disbarment proceedings are lawful charges forthwith the parties may be taxed as costs. EFFECTIVITY 125

SIGMA LEGIS COPY

Sec. 8. Investigation. - Upon joinder of issues or upon failure of the respondent to answer, the Investigator shall, with deliberate speed, proceed with the investigation of the case. He shall have the power to issue subpoenas and administer oaths. The respondent shall be given full opportunity to defend himself, to present witnesses on his behalf and be heard by himself and counsel. However, if upon reasonable notice, the respondent fails to appear, the investigation shall proceed ex parte. The Investigator shall terminate the investigation within 3 months from the date of its commencement unless extended for good cause by the Board of Governors upon prior application. Willfull failure or refusal to obey a subpoena or any other lawful order issued by the Investigator shall be dealt with as for indirect contempt of court. The corresponding charge shall be filed by the Investigator before the IBP Board of Governors which shall require the alleged contemptor to show cause within ten (10) days from notice. The IBP Board of Governors may thereafter conduct hearings, if necessary, in accordance with the procedure set forth in this Rule for hearings before the Investigator. Such hearing shall, as far as practicable, be terminated within fifteen (15) days from its commencement. Thereafter, the IBP Board of Governors shall within like period fifteen (15) days issue a resolution setting forth its findings and recommendations, which `shall forthwith be transmitted to the Supreme Court for final action and if warranted, the imposition of penalty.

decision of the Board upon such review shall be in writing and shall clearly and distinctly state the facts and the reasons on which it is based. It shall be promulgated within a period not exceeding thirty (30) days from the next meeting of the Board following the submittal of the Investigator's Report If the Board, by the vote of a majority of its total membership, determines that the respondent should be suspended from the practice of law or disbarred, it shall issue a resolution setting forth its findings and recommendations which, together with the whole record of the case, shall forthwith be transmitted to the SC for final action. If the respondent is exonerated by the Board or the disciplinary sanction imposed by it is less than suspension or disbarment (such as admonition, [warning,] reprimand, or fine) it shall issue a decision exonerating respondent or imposing such sanction. The case shall be deemed terminated unless upon petition of the complainant or other interested party filed with the Supreme Court within 15 days from notice of the Board’s resolution, the Supreme Court orders otherwise. Notice of the resolution or decision of the Board shall be given to all parties through their counsel. A copy of the same shall be transmitted to the Supreme Court.

LEGAL PROFESSION & ETHICS

RULE 140 CHARGES AGAINST JUDGES OF FIRST INSTANCE (as amended by A.M. No. 01-8-10 SC) (Oct. 1. 2001) Sec. 1. How Instituted.—Proceedings for the discipline of Judges of regular and special courts and Justices of the CA and the Sandiganbayan may be instituted (1) motu propio by the SC or (2) upon a verified complaint, supported by affidavits of persons who have personal knowledge of the facts alleged therein or by documents which may substantiate said allegations or (3) upon an anonymous complaint, supported by public records of indubitable integrity. The complaint shall be in writing and shall state clearly and concisely the acts and omissions constituting violations of standards of conduct prescribed for Judges by law, the RoC, or the Code of Judicial Conduct. Sec. 2. Action on complaint.—If the complaint is sufficient in form and substance, a copy thereof shall be served upon the respondent and he shall be required to comment within 10 days from the date of service. Otherwise, the same shall be dismissed. Sec. 3. By whom complaint investigated.—Upon the filing of respondent’s comment, or upon the expiration of the time for filing the same and unless other pleading or documents are required, the Court shall (1) refer the matter to the Office of the Court Administrator for evaluation, report and recommendation or (2) assign the case for investigation, report and recommendation to a retired member of the SC, if the respondent is a Justice of the CA and the Sandiganbayan, or (3) to a Justice of the CA if the respondent is a Judge of a RTC or of a special court of equivalent rank, or (4) to a Judge of the RTC if the respondent is a Judge of an inferior court. Sec. 4. Hearing. The investigating Justice or Judge shall set a day for the hearing and send notice thereof to both parties. At such hearing, the parties may present oral and documentary evidence. If after due notice, the respondent fails to appear, the investigation shall proceed ex parte. Investigating Justice of Judge shall terminate the investigation within 90 days from the date of its commencement or within an extension as the SC may grant. Sec. 5. Report. Within 30 days from the termination of the investigation, the investigating Justice or Judge shall submit to the SC a report containing the findings of fact and recommendation. The report shall be accompanied by the record containing the evidence and the pleadings filed by the parties. The report shall be confidential and shall be for the exclusive se for the Court. Sec. 6. Action—The Court shall take such notice on the report as the facts and the law may warrant.

3. 4.

Gross misconduct constituting violations of the Code of Judicial Conduct Knowingly rendering an unjust judgement or order as determined by a competent court in an appropriate proceeding; 5. Conviction of a crime involving moral turpitude; 6. Willful failure to pay a just debt; 7. Borrowing money or property from lawyers and litigants in a case pending before the court; 8. Immorality; 9. Gross ignorance of the law or procedure; 10. Partisan political activities; and 11. Alcoholism and / or vicious habits. Sec. 9. Less Serious Charges—Less serious charges include: 1. Undue delay in rendering a decision or order, or in transmitting the records of a case; 2. Frequent and unjustified absences without leave or habitual tardiness; 3. Unauthorized practice of law; 4. Violations of SC rules, directives and circulars; 5. Receiving additional or double compensation, unless specifically authorized by law; 6. Untruthful statements in the certificate of service; and 7. Simple misconduct. Sec. 10 Light Charges—Light charges include: 1. Vulgar and unbecoming conduct; 2. Gambling in public; 3. Fraternizing with lawyers and litigants with pending case / cases in his court; and 4. Undue delay in the submission of monthly reports. Sec. 11 Sanctions— A. If the respondent is guilty of a serious charge, any of the following sanctions may be imposed: 1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualifications from reinstatement or appointment to any public office, including government-owned or controlled corporations. Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; 2. Suspension form office without salary and other benefits for more than 3 but not exceeding 6 months, or 3. A fine of more than P20,000 but not exceeding P40,000 B. If the respondent is guilty of a less serious charge, any of the following sanctions shall be imposed. 1. Suspension form office without salary and other benefits for not less than 1 month not more than 3 months; or 2. A fine of more than P10,000 but not exceeding P20,000 C. If the respondent is guilty of a light charge, any of the following sanctions shall be imposed. 1. A fine of not less than P1,000 but not exceeding 10,000 and / or 2. Censure; 3. Reprimand; 4. Admonition with warning. Sec. 12. Confidentiality of Proceedings.—Proceedings against Judges of regular and special courts and Justices of the CA and the Sandiganbayan shall be private and confidential, but a copy of the decision or resolution of the Court shall be attached to the record of the respondent in the Office of the Court Administrator. These amendments to Rule 140 shall take effect on Oct. 1, 2001 following their publication in 2 newspapers of general circulation on or before Sept. 15, 2001.

ANNEXED ETC. SUPREME COURT ISSUANCES

Sec. 7. Classification of Charges. Administrative charges are classified as serious, less serious or light. A.M. No. 02-9-02 Sec. 8. Serious Charges. Serious charges include: 1. Bribery, direct of indirect; 2. Dishonesty and violations of the Anti-Graft and Corrupt Practices Law (RA 3019);

A.M. No. 02-9-02 Re: Automatic conversion of some administrative cases against Justices of the CA and the Sandiganbyan; Judges of Regular and Special 126

SIGMA LEGIS COPY

Sec. 20. Effectivity and Transitory Provision. - This Rule shall take effect on June 1, 1988 and shall supersede the present Rule 139 entitled "DISBARMENT OR SUSPENSION OF ATTORNEYS". All cases pending investigation by the Office of the Solicitor General shall be transferred to the Integrated Bar of the Philippines Board of Governors for investigation and disposition as provided in this Rule except those cases where the investigation has been substantially completed.

LEGAL PROFESSION & ETHICS

Some administrative cases against Justices of the CA and the Sandiganbayan; judges of regular and special courts; and court officials who are lawyers are based on grounds which are likewise grounds for the disciplinary action of members of the Bar for violation of the Lawyer’s Oath, the Code of Professional Responsibility, and the Canons of Professional Ethics, or for such other forms or breaches of conduct that have been traditionally recognized as grounds for discipline of lawyers. In any of the foregoing instances, the administrative case shall also be considered a disciplinary action against the respondent Justice, judge or court official concerned as a member of the Bar. The respondent may forthwith be required to comment on the complaint and show cause why he should not also be suspended, disbarred or otherwise disciplinarily sanctioned as a member of the Bar. Judgement in both respects may be incorporated in one decision or resolution. This resolution shall supplement Rule 140 of the RoC and shall take effect on the first day of Oct. 2002. It shall apply to administrative cases already filed where the respondents have not yt been required to comment on the complaints. This resolution shall be published in a newspaper of general circulation in the Philippines.

2004 RULES ON NOTARIAL PRACTICE (Aug. 1, 2004) RULE I IMPLEMENTATION Sec. 1. Title. - These Rules shall be known as the 2004 Rules on Notarial Practice. Sec. 2. Purposes. - These Rules shall be applied and construed to advance the following purposes: a. to promote, serve, and protect public interest; b. to simplify, clarify, and modernize the rules governing notaries public; and c. to foster ethical conduct among notaries public. Sec. 3. Interpretation. - Unless the context of these Rules otherwise indicates, words in the singular include the plural, and words in the plural include the singular. RULE II DEFINITIONS Sec. 1. Acknowledgment. - "Acknowledgment" refers to an act in which an individual on a single occasion: a. appears in person before the notary public and presents an integrally complete instrument or document; b. is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and c. represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purposes stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity, that he has the authority to sign in that capacity. Sec. 2. Affirmation or Oath. - The term "Affirmation" or "Oath" refers to an act in which an individual on a single occasion: a. appears in person before the notary public;

b. c.

is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and avows under penalty of law to the whole truth of the contents of the instrument or document.

Sec. 3. Commission. - "Commission" refers to the grant of authority to perform notarial acts and to the written evidence of the authority. Sec. 4. Copy Certification. - "Copy Certification" refers to a notarial act in which a notary public: a. is presented with an instrument or document that is neither a vital record, a public record, nor publicly recordable; b. copies or supervises the copying of the instrument or document; c. compares the instrument or document with the copy; and d. determines that the copy is accurate and complete. Sec. 5. Notarial Register. - "Notarial Register" refers to a permanently bound book with numbered pages containing a chronological record of notarial acts performed by a notary public. Sec. 6. Jurat. - "Jurat" refers to an act in which an individual on a single occasion: a. appears in person before the notary public and presents an instrument or document; b. is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; c. signs the instrument or document in the presence of the notary; and d. takes an oath or affirmation before the notary public as to such instrument or document. Sec. 7. Notarial Act and Notarization. - "Notarial Act" and "Notarization" refer to any act that a notary public is empowered to perform under these Rules. Sec. 8. Notarial Certificate. - "Notarial Certificate" refers to the part of, or attachment to, a notarized instrument or document that is completed by the notary public, bears the notary's signature and seal, and states the facts attested to by the notary public in a particular notarization as provided for by these Rules. Sec. 9. Notary Public and Notaty. - "Notary Public" and "Notary" refer to any person commissioned to perform official acts under these Rules. Sec. 10. Principal. - "Principal" refers to a person appearing before the notary public whose act is the subject of notarization. Sec. 11. Regular Place of Work or Business. - The term "regular place of work or business" refers to a stationary office in the city or province wherein the notary public renders legal and notarial services. Sec. 12. Competent Evidence of Identity. - The phrase "competent evidence of identity" refers to the identification of an individual based on: a. at least one current identification document issued by an official agency bearing the photograph and signature of the individual; or b. the oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification. Sec. 13. Official Seal or Seal. - "Official seal" or "Seal" refers to a device for affixing a mark, image or impression on all papers officially signed by the notary public conforming the requisites prescribed by these Rules. Sec. 14. Signature Witnessing. -The term "signature witnessing" refers to a notarial act in which an individual on a single occasion: a. appears in person before the notary public and presents an instrument or document; b. is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and 127

SIGMA LEGIS COPY

Courts; and court officials who are lawyers as disciplinary proceedings against them both as such officials and as Members of the Philippine Bar.

LEGAL PROFESSION & ETHICS signs the instrument or document in the presence of the notary public.

Sec. 15. Court. - "Court" refers to the Supreme Court of the Philippines. Sec. 16. Petitioner. - "Petitioner" refers to a person who applies for a notarial commission. Sec. 17. Office of the Court Administrator. - "Office of the Court Administrator" refers to the Office of the Court Administrator of the Supreme Court. Sec. 18. Executive Judge. - "Executive Judge" refers to the Executive Judge of the Regional Trial Court of a city or province who issues a notarial commission. Sec. 19. Vendor - "Vendor" under these Rules refers to a seller of a notarial seal and shall include a wholesaler or retailer. Sec. 20. Manufacturer. - "Manufacturer" under these Rules refers to one who produces a notarial seal and shall include an engraver and seal maker. RULE III COMMISSIONING OF NOTARY PUBLIC Sec. 1. Qualifications. - A notarial commission may be issued by an Executive Judge to any qualified person who submits a petition in accordance with these Rules. To be eligible for commissioning as notary public, the petitioner: 1. must be a citizen of the Philippines; 2. must be over twenty-one (21) years of age; 3. must be a resident in the Philippines for at least one (1) year and maintains a regular place of work or business in the city or province where the commission is to be issued; 4. must be a member of the Philippine Bar in good standing with clearances from the Office of the Bar Confidant of the Supreme Court and the Integrated Bar of the Philippines; and 5. must not have been convicted in the first instance of any crime involving moral turpitude. Sec. 2. Form of the Petition and Supporting Documents. - Every petition for a notarial commission shall be in writing, verified, and shall include the following: a) a statement containing the petitioner's personal qualifications, including the petitioner's date of birth, residence, telephone number, professional tax receipt, roll of attorney's number and IBP membership number; , b) certification of good moral character of the petitioner by at least two (2) executive officers of the local chapter of the Integrated Bar of the Philippines where he is applying for commission; c) proof of payment for the filing of the petition as required by these Rules; and d) three (3) passport-size color photographs with light background taken within thirty (30) days of the application. The photograph should not be retouched. The petitioner shall sign his name at the bottom part of the photographs. Sec. 3. Application Fee. - Every petitioner for a notarial commission shall pay the application fee as prescribed in the Rules of Court. Sec. 4. Summary Hearing on the Petition. - The Executive Judge shall conduct a summary hearing on the petition and shall grant the same if: a) the petition is sufficient in form and substance; b) the petitioner proves the allegations contained in the petition; and

c)

the petitioner establishes to the satisfaction of the Executive Judge that he has read and fully understood these Rules. The Executive Judge shall forthwith issue a commission and a Certificate of Authorization to Purchase a Notarial Seal in favor of the petitioner. Sec. 5. Notice of Summary Hearing. – a) The notice of summary hearing shall be published in a newspaper of general circulation in the city or province where the hearing shall be conducted and posted in a conspicuous place in the offices of the Executive Judge and of the Clerk of Court. The cost of the publication shall be borne by the petitioner. The notice may include more than one petitioner. b) The notice shall be substantially in the following form; NOTICE OF HEARING Notice is hereby given that a summary hearing on the petition for notarial commission of (name of petitioner) shall be held on (date) at (place) at (time). Any person who has any cause or reason to object to the grant of the petition may file a verified written opposition thereto, received by the undersigned before the date of the summary hearing. ______________ Executive Judge Sec. 6. Opposition to Petition. - Any person who has any cause or reason to object to the grant of the petition may file a verified written opposition thereto. The opposition must be received by the Executive Judge before the date of the summary hearing. Sec. 7. Form of Notarial Commission. - The commissioning of a notary public shall be in a formal order signed by the Executive Judge substantially in the following form: REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT OF ______________ This is to certify that (name of notary public) of (regular place of work or business) in (city or province) was on this (date) day of (month) two thousand and (year) commissioned by the undersigned as a notary public, within and for the said jurisdiction, for a term ending the thirty-first day of December (year) _______________ Executive Judge Sec. 8. Period Of Validity of Certificate of Authorization to Purchase a Notarial Seal. - The Certificate of Authorization to Purchase a Notarial Seal shall be valid for a period of three (3) months from date of issue, unless extended by the Executive Judge. A mark, image or impression of the seal that may be purchased by the notary public pursuant to the Certificate shall be presented to the Executive Judge for approval prior to use. Sec. 9. Form of Certificate of Authorization to Purchase a Notarial Seal. -The Certificate of Authorization to Purchase a Notarial Seal shall substantially be in the following form: REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT OF_____________ CERTIFICATE OF AUTHORIZATION TO PURCHASE A NOTARIAL SEAL This is to authorize (name of notary public) of (city or province) who was commissioned by the undersigned as a notary public, within and for the said jurisdiction, for a term ending, the thirty-first of December (year) to purchase a notarial seal. Issued this (day) of (month) (year). _______________ Executive Judge Sec. 10. Official Seal of Notary Public. - Every person commissioned as notary public shall have only one official seal of office in accordance with these Rules. Sec. 11. Jurisdiction and Term. - A person commissioned as notary public may perform notarial acts in any place within the territorial jurisdiction of the commissioning court for a period of two (2) years commencing the first day of January of the year in which the commissioning is made, unless earlier revoked or the notary public has resigned under these Rules and the Rules of Court. 128

SIGMA LEGIS COPY

c.

LEGAL PROFESSION & ETHICS

Sec. 13. Renewal of Commission. - A notary public may file a written application with the Executive Judge for the renewal of his commission within forty-five (45) days before the expiration thereof. A mark, image or impression of the seal of the notary public shall be attached to the application. Failure to file said application will result in the deletion of the name of the notary public in the register of notaries public. The notary public thus removed from the Register of Notaries Public may only be reinstated therein after he is issued a new commission in accordance with these Rules. Sec. 14. Action on Application for Renewal of Commission. - The Executive Judge shall, upon payment of the application fee mentioned in Section 3 above of this Rule, act on an application for the renewal of a commission within thirty (30) days from receipt thereof. If the application is denied, the Executive Judge shall state the reasons therefor. RULE IV POWERS AND LIMITATIONS OF NOTARIES PUBLIC Sec. 1. Powers. – a) A notary public is empowered to perform the following notarial acts: 1) acknowledgments; 2) oaths and affirmations; 3) jurats; 4) signature witnessings; 5) copy certifications; and 6) any other act authorized by these Rules. b) A notary public is authorized to certify the affixing of a signature by thumb or other mark on an instrument or document presented for notarization if: 1) the thumb or other mark is affixed in the presence of the notary public and of two (2) disinterested and unaffected witnesses to the instrument or document; 2) both witnesses sign their own names in addition to the thumb or other mark; 3) the notary public writes below the thumb or other mark: "Thumb or Other Mark affixed by (name of signatory by mark) in the presence of (names and addresses of witnesses) and undersigned notary public"; and 4) the notary public notarizes the signature by thumb or other mark through an acknowledgment, jurat, or signature witnessing. c) A notary public is authorized to sign on behalf of a person who is physically unable to sign or make a mark on an instrument or document if: 1) the notary public is directed by the person unable to sign or make a mark to sign on his behalf; 2) the signature of the notary public is affixed in the presence of two disinterested and unaffected witnesses to the instrument or document; 3) both witnesses sign their own names ; 4) the notary public writes below his signature: "Signature affixed by notary in presence of (names and addresses of person and two \2] witnesses)"; and 5) the notary public notarizes his signature by acknowledgment or jurat.

Sec. 2. Prohibitions. – a) A notary public shall not perform a notarial act outside his regular place of work or business; provided, however, that on certain exceptional occasions or situations, a notarial act may be performed at the request of the parties in the following sites located within his territorial jurisdiction: (1) public offices, convention halls, and similar places where oaths of office may be administered; (2) public function areas in hotels and similar places for the signing of instruments or documents requiring notarization; (3) hospitals and other medical institutions where a party to an instrument or document is confined for treatment; and (4) any place where a party to an instrument or document requiring notarization is under detention. b) A person shall not perform a notarial act if the person involved as signatory to the instrument or document (1) is not in the notary's presence personally at the time of the notarization; and (2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules. Sec. 3. Disqualifications. - A notary public is disqualified from performing a notarial act if he: (a) is a party to the instrument or document that is to be notarized; (b) will receive, as a direct or indirect result, any commission, fee, advantage, right, title, interest, cash, property, or other consideration, except as provided by these Rules and by law; or (c) is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree. Sec. 4. Refusal to Notarize. - A notary public shall not perform any notarial act described in these Rules for any person requesting such an act even if he tenders the appropriate fee specified by these Rules if: (a) the notary knows or has good reason to believe that the notarial act or transaction is unlawful or immoral; (b) the signatory shows a demeanor which engenders in the mind of the notary public reasonable doubt as to the former's knowledge of the consequences of the transaction requiring a notarial act; and (c) in the notary's judgment, the signatory is not acting of his or her own free will. Sec. 5. False or Incomplete Certificate. - A notary public shall not: (a) execute a certificate containing information known or believed by the notary to be false. (b) affix an official signature or seal on a notarial certificate that is incomplete. Sec. 6. Improper Instruments or Documents. - A notary public shall not notarize: (a) a blank or incomplete instrument or document; or (b) an instrument or document without appropriate notarial certification. RULE V FEES OF NOTARY PUBLIC Sec. 1. Imposition and Waiver of Fees. - For performing a notarial act, a notary public may charge the maximum fee as prescribed by the Supreme Court unless he waives the fee in whole or in part. Sec. 2. Travel Fees and Expenses. - A notary public may charge travel fees and expenses separate and apart from the notarial fees prescribed in the preceding section when traveling to perform a notarial act if the notary public and the person requesting the notarial act agree prior to the travel. Sec. 3. Prohibited Fees. - No fee or compensation of any kind, except those expressly prescribed and allowed herein, shall be collected or received for any notarial service. Sec. 4. Payment or Refund of Fees. - A notary public shall not require payment of any fees specified herein prior to the performance of a notarial act unless otherwise agreed upon. 129

SIGMA LEGIS COPY

Sec. 12. Register of Notaries Public. - The Executive Judge shall keep and maintain a Register of Notaries Public in his jurisdiction which shall contain, among others, the dates of issuance or revocation or suspension of notarial commissions, and the resignation or death of notaries public. The Executive Judge shall furnish the Office of the Court Administrator information and data recorded in the register of notaries public. The Office of the Court Administrator shall keep a permanent, complete and updated database of such records.

LEGAL PROFESSION & ETHICS

Sec. 5. Notice of Fees. - A notary public who charges a fee for notarial services shall issue a receipt registered with the Bureau of Internal Revenue and keep a journal of notarial fees. He shall enter in the journal all fees charged for services rendered. A notary public shall post in a conspicuous place in his office a complete schedule of chargeable notarial fees. RULE VI NOTARIAL REGISTER Sec. 1. Form of Notarial Register. – (a) A notary public shall keep, maintain, protect and provide for lawful inspection as provided in these Rules, a chronological official notarial register of notarial acts consisting of a permanently bound book with numbered pages. The register shall be kept in books to be furnished by the Solicitor General to any notary public upon request and upon payment of the cost thereof. The register shall be duly paged, and on the first page, the Solicitor General shall certify the number of pages of which the book consists. For purposes of this provision, a Memorandum of Agreement or Understanding may be entered into by the Office of the Solicitor General and the Office of the Court Administrator. (b) A notary/ public shall keep only one active notarial register at any given time. Sec. 2. Entries in the Notarial Register. – (a) For every notarial act, the notary shall record in the notarial register at the time of notarization the following: (1) the entry number and page number; (2) the date and time of day of the notarial act; (3) the type of notarial act; (4) the title or description of the instrument, document or proceeding; (5) the name and address of each principal; (6) the competent evidence of identity as defined by these Rules if the signatory is not personally known to the notary; (7) the name and address of each credible witness swearing to or affirming the person's identity; (8) the fee charged for the notarial act; (9) the address where the notarization was performed if not in the notary's regular place of work or business; and (10) any other circumstance the notary public may deem of significance or relevance. (b) A notary public shall record in the notarial register the reasons and circumstances for not completing a notarial act. (c) A notary public shall record in the notarial register the circumstances of any request to inspect or copy an entry in the notarial register, including the requester's name, address, signature, thumbmark or other recognized identifier, and evidence of identity. The reasons for refusal to allow inspection or copying of a journal entry shall also be recorded. (d) When the instrument or document is a contract, the notary public shall keep an original copy thereof as part of his records and enter in said records a brief description of the substance thereof and shall give to each entry a consecutive number, beginning with number one in each calendar year. He shall also retain a duplicate original copy for the Clerk of Court. (e) The notary public shall give to each instrument or document executed, sworn to, or acknowledged before him a number corresponding to the one in his register, and shall also state

(f)

(g)

(h)

on the instrument or document the page/s of his register on which the same is recorded. No blank line shall be left between entries. In case of a protest of any draft, bill of exchange or promissory note, the notary public shall make a full and true record of all proceedings in relation thereto and shall note therein whether the demand for the sum of money was made, by whom, when, and where; whether he presented such draft, bill or note; whether notices were given, to whom and in what manner; where the same was made, when and to whom and where directed; and of every other fact touching the same. At the end of each week, the notary public shall certify in his notarial register the number of instruments or documents executed, sworn to, acknowledged, or protested before him; or if none, this certificate shall show this fact. A certified copy of each month's entries and a duplicate original copy of any instrument acknowledged before the notary public shall, within the first ten (10) days of the month following, be forwarded to the Clerk of Court and shall be under the responsibility of such officer. If there is no entry to certify for the month, the notary shall forward a statement to this effect in lieu of certified copies herein required.

Sec. 3. Signatures and Thumbmarks. - At the time of notarization, the notary's notarial register shall be signed or a thumb or other mark affixed by each: (a) principal; (b) credible witness swearing or affirming to the identity of a principal; and (c) witness to a signature by thumb or other mark, or to a signing by the notary public on behalf of a person physically unable to sign. Sec. 4. Inspection, Copying and Disposal. – (a) In the notary's presence, any person may inspect an entry in the notarial register, during regular business hours, provided; (1) the person's identity is personally known to the notary public or proven through competent evidence of identity as defined in these Rules; (2) the person affixes a signature and thumb or other mark or other recognized identifier, in the notarial .register in a separate, dated entry; (3) the person specifies the month, year, type of instrument or document, and name of the principal in the notarial act or acts sought; and (4) the person is shown only the entry or entries specified by him. (b) The notarial register may be examined by a law enforcement officer in the course of an official investigation or by virtue of a court order. (c) If the notary public has a reasonable ground to believe that a person has a criminal intent or wrongful motive in requesting information from the notarial register, the notary shall deny access to any entry or entries therein. Sec. 5. Loss, Destruction or Damage of Notarial Register. – (a) In case the notarial register is stolen, lost, destroyed, damaged, or otherwise rendered unusable or illegible as a record of notarial acts, the notary public shall, within ten (10) days after informing the appropriate law enforcement agency in the case of theft or vandalism, notify the Executive Judge by any means providing a proper receipt or acknowledgment, including registered mail and also provide a copy or number of any pertinent police report. (b) Upon revocation or expiration of a notarial commission, or death of the notary public, the notarial register and notarial records shall immediately be delivered to the office of the Executive Judge. Sec. 6. Issuance of Certified True Copies. - The notary public shall supply a certified true copy of the notarial record, or any part thereof, to any person applying for such copy upon payment of the legal fees. RULE VII SIGNATURE AND SEAL OF NOTARY PUBLIC Sec. 1. Official Signature. - In notarizing a paper instrument or document, a notary public shall: (a) sign by hand on the notarial certificate only the name indicated and as appearing on the notary's commission; 130

SIGMA LEGIS COPY

Any travel fees and expenses paid to a notary public prior to the performance of a notarial act are not subject to refund if the notary public had already traveled but failed to complete in whole or in part the notarial act for reasons beyond his control and without negligence on his part.

LEGAL PROFESSION & ETHICS not sign using a facsimile stamp or printing device; and affix his official signature only at the time the notarial act is performed.

(c)

Sec. 2. Official Seal. – (a) Every person commissioned as notary public shall have a seal of office, to be procured at his own expense, which shall not be possessed or owned by any other person. It shall be of metal, circular in shape, two inches in diameter, and shall have the name of the city or province and the word "Philippines" and his own name on the margin and the roll of attorney's number on the face thereof, with the words "notary public" across the center. A mark, image or impression of such seal shall be made directly on the paper or parchment on which the writing appears. (b) The official seal shall be affixed only at the time the notarial act is performed and shall be clearly impressed by the notary public on every page of the instrument or document notarized. (c) When not in use, the official seal shall be kept safe and secure and shall be accessible only to the notary public or the person duly authorized by him. (d) Within five (5) days after the official seal of a notary public is stolen, lost, damaged or other otherwise rendered unserviceable in affixing a legible image, the notary public, after informing the appropriate law enforcement agency, shall notify the Executive Judge in writing, providing proper receipt or acknowledgment, including registered mail, and in the event of a crime committed, provide a copy or entry number of the appropriate police record. Upon receipt of such notice, if found in order by the Executive Judge, the latter shall order the notary public to cause notice of such loss or damage to be published, once a week for three (3) consecutive weeks, in a newspaper of general circulation in the city or province where the notary public is commissioned. Thereafter, the Executive Judge shall issue to the notary public a new Certificate of Authorization to Purchase a Notarial Seal. (e) Within five (5) days after the death or resignation of the notary public, or the revocation or expiration of a notarial commission, the official seal shall be surrendered to the Executive Judge and shall be destroyed or defaced in public during office hours. In the event that the missing, lost or damaged seal is later found or surrendered, it shall be delivered by the notary public to the Executive Judge to be disposed of in accordance with this section. Failure to effect such surrender shall constitute contempt of court. In the event of death of the notary public, the person in possession of the official seal shall have the duty to surrender it to the Executive Judge.

(d)

Sec. 3. Seal Image. - The notary public shall affix a single, clear, legible, permanent, and photographically reproducible mark, image or impression of the official seal beside his signature on the notarial certificate of a paper instrument or document. Sec. 4. Obtaining and Providing Seal. – (a) A vendor or manufacturer of notarial seals may not sell said product without a written authorization from the Executive Judge. (b) Upon written application and after payment of the application fee, the Executive Judge may issue an authorization to sell to a vendor or manufacturer of notarial seals after verification and investigation of the latter's qualifications. The Executive Judge shall charge an authorization fee in the amount of Php 4,000 for the vendor and Php 8,000 for the manufacturer. If a manufacturer is also a vendor, he shall only pay the manufacturer's authorization fee.

(e) (f)

(g)

The authorization shall be in effect for a period of four (4) years from the date of its issuance and may be renewed by the Executive Judge for a similar period upon payment of the authorization fee mentioned in the preceding paragraph. A vendor or manufacturer shall not sell a seal to a buyer except upon submission of a certified copy of the commission and the Certificate of Authorization to Purchase a Notarial Seal issued by the Executive Judge. A notary public obtaining a new seal as a result of change of name shall present to the vendor or manufacturer a certified copy of the Confirmation of the Change of Name issued by the Executive Judge. Only one seal may be sold by a vendor or manufacturer for each Certificate of Authorization to Purchase a Notarial Seal, After the sale, the vendor or manufacturer shall affix a mark, image or impression of the seal to the Certificate of Authorization to Purchase a Notarial Seal and submit the completed Certificate to the Executive Judge. Copies of the Certificate of Authorization to Purchase a Notarial Seal and the buyer's commission shall be kept in the files of the vendor or manufacturer for four (4) years after the sale. A notary public obtaining a new seal as a result of change of name shall present to the vendor a certified copy of the order confirming the change of name issued by the Executive Judge.

RULE VIII NOTARIAL CERTIFICATES Sec. 1. Form of Notarial Certificate. - The notarial form used for any notarial instrument or document shall conform to all the requisites prescribed herein, the Rules of Court and all other provisions of issuances by the Supreme Court and in applicable laws. Sec. 2. Contents of the Concluding Part of the Notarial Certificate. - The notarial certificate shall include the following: (a) the name of the notary public as exactly indicated in the commission; (b) the serial number of the commission of the notary public; (c) the words "Notary Public" and the province or city where the notary public is commissioned, the expiration date of the commission, the office address of the notary public; and (d) the roll of attorney's number, the professional tax receipt number and the place and date of issuance thereof, and the IBP membership number. RULE IX CERTIFICATE OF AUTHORITY OF NOTARIES PUBLIC Sec. 1. Certificate of Authority for a Notarial Act. - A certificate of authority evidencing the authenticity of the official seal and signature of a notary public shall be issued by the Executive Judge upon request in substantially the following form: CERTIFICATE OF AUTHORITY FOR A NOTARIAL ACT I, (name, title, jurisdiction of the Executive Judge), certify that (name of notary public), the person named in the seal and signature on the attached document, is a Notary Public in and for the (City/Municipality/Province) of the Republic of the Philippines and authorized to act as such at the time of the document's notarization. IN WITNESS WHEREOF, I have affixed below my signature and seal of this office this (date) day of (month) (year). _________________ (official signature) (seal of Executive Judge) RULE X CHANGES OF STATUS OF NOTARY PUBLIC Sec. 1. Change of Name and Address. Within ten (10) days after the change of name of the notary public by court order or by marriage, or after ceasing to maintain the regular place of work or business, the notary public shall submit a signed and dated notice of such fact to the Executive Judge. The notary public shall not notarize until: (a) he receives from the Executive Judge a confirmation of the new name of the notary public and/or change of regular place of work or business; and 131

SIGMA LEGIS COPY

(b) (c)

LEGAL PROFESSION & ETHICS

Sec. 2. Resignation. - A notary public may resign his commission by personally submitting a written, dated and signed formal notice to the Executive Judge together with his notarial seal, notarial register and records. Effective from the date indicated in the notice, he shall immediately cease to perform notarial acts. In the event of his incapacity to personally appear, the submission of the notice may be performed by his duly authorized representative. Sec. 3. Publication of Resignation. - The Executive Judge shall immediately order the Clerk of Court to post in a conspicuous place in the offices of the Executive Judge and of the Clerk of Court the names of notaries public who have resigned their notarial commissions and the effective dates of their resignation. RULE XI REVOCATION OF COMMISSION AND DISCIPLINARY SANCTIONS Sec. 1. Revocation and Administrative Sanctions. – (a) The Executive Judge shall revoke a notarial commission for any ground on which an application for a commission may be denied. (b) In addition, the Executive Judge may revoke the commission of, or impose appropriate administrative sanctions upon, any notary public who: (1) fails to keep a notarial register; (2) fails to make the proper entry or entries in his notarial register concerning his notarial acts; (3) fails to send the copy of the entries to the Executive Judge within the first ten (10) days of the month following; (4) fails to affix to acknowledgments the date of expiration of his commission; (5) fails to submit his notarial register, when filled, to the Executive Judge; (6) fails to make his report, within a reasonable time, to the Executive Judge concerning the performance of his duties, as may be required by the judge; (7) fails to require the presence of a principal at the time of the notarial act; (8) fails to identify a principal on the basis of personal knowledge or competent evidence; (9) executes a false or incomplete certificate under Section 5, Rule IV; (10) knowingly performs or fails to perform any other act prohibited or mandated by these Rules; and (11) commits any other dereliction or act which in the judgment of the Executive Judge constitutes good cause for revocation of commission or imposition of administrative sanction. (c) Upon verified complaint by an interested, affected or aggrieved person, the notary public shall be required to file a verified answer to the complaint. If the answer of the notary public is not satisfactory, the Executive Judge shall conduct a summary hearing. If the allegations of the complaint are not proven, the complaint shall be dismissed. If the charges are duly established, the Executive Judge shall impose the appropriate administrative sanctions. In either case, the aggrieved party may appeal the decision to the Supreme Court for review. Pending the appeal, an order imposing disciplinary sanctions shall be immediately executory, unless otherwise ordered by the Supreme Court.

(d)

The Executive Judge may motu proprio initiate administrative proceedings against a notary public, subject to the procedures prescribed in paragraph (c) above and impose the appropriate administrative sanctions on the grounds mentioned in the preceding paragraphs (a) and (b).

Sec. 2. Supervision and Monitoring of Notaries Public. - The Executive Judge shall at all times exercise supervision over notaries public and shall closely monitor their activities. Sec. 3. Publication of Revocations and Administrative Sanctions. - The Executive Judge shall immediately order the Clerk of Court to post in a conspicuous place in the offices of the Executive Judge and of the Clerk of Court the names of notaries public who have been administratively sanctioned or whose notarial commissions have been revoked. Sec. 4. Death of Notary Public. - If a notary public dies before fulfilling the obligations in Section 4(e), Rule VI and Section 2(e), Rule VII, the Executive Judge, upon being notified of such death, shall forthwith cause compliance with the provisions of these sections. RULE XII SPECIAL PROVISIONS Sec. 1. Punishable Acts. - The Executive Judge shall cause the prosecution of any person who: (a) knowingly acts or otherwise impersonates a notary public; (b) knowingly obtains, conceals, defaces, or destroys the seal, notarial register, or official records of a notary public; and (c) knowingly solicits, coerces, or in any way influences a notary public to commit official misconduct. Sec. 2. Reports to the Supreme Court. - The Executive Judge concerned shall submit semestral reports to the Supreme Court on discipline and prosecution of notaries public. RULE XIII REPEALING AND EFFECTIVITY PROVISIONS Sec. 1. Repeal. - All rules and parts of rules, including issuances of the Supreme Court inconsistent herewith, are hereby repealed or accordingly modified. Sec. 2. Effective Date. - These Rules shall take effect on the first day of August 2004, and shall be published in a newspaper of general circulation in the Philippines which provides sufficiently wide circulation. Promulgated this 6th day of July, 2004. B.M. No. 850 August 22, 2000 MANDATORY CONTINUING LEGAL EDUCATION (MCLE) ADOPTING THE RULES ON MANDATORY CONTINUING LEGAL EDUCATION FOR MEMBERS OF THE INTEGRATED BAR OF THE PHILIPPINES EN BANC RESOLUTION Considering the Rules on Mandatory Continuing Legal Education (MCLE) for members of the Integrated Bar of the Philippines (IBP), recommended by the IBP, endorsed by the Philippine Judicial Academy, and reviewed and passed upon by the Supreme Court Committee on Legal Education, the Court hereby resolves to adopt, as it hereby adopts, the following rules for proper implementation: RULE 1 PURPOSE Sec. 1. Purpose of the MCLE. Continuing legal education is required of members of the Integrated Bar of the Philippines (IBP) to ensure that throughout their career, they keep abreast with law and jurisprudence, maintain the ethics of the profession and enhance the standards of the practice of law. 132

SIGMA LEGIS COPY

(b) a new seal bearing the new name has been obtained. The foregoing notwithstanding, until the aforementioned steps have been completed, the notary public may continue to use the former name or regular place of work or business in performing notarial acts for three (3) months from the date of the change, which may be extended once for valid and just cause by the Executive Judge for another period not exceeding three (3) months.

LEGAL PROFESSION & ETHICS

Sec. 1. Constitution of the MCLE Committee. Within two (2) months from the approval of these Rules by the Supreme Court En Banc, the MCLE Committee shall be constituted in accordance with these Rules. Sec. 2. Requirements of completion of MCLE. Members of the IBP not exempt under Rule 7 shall complete, every three (3) years, at least thirty-six (36) hours of continuing legal education activities approved by the MCLE Committee. Of the 36 hours: (a) At least six (6) hours shall be devoted to legal ethics. (b) At least (4) hours shall be devoted to trial and pretrial skills. (c) At least five (5) hours shall be devoted to alternative dispute resolution. (d) At least nine (9) hours shall be devoted to updates on substantive and procedural laws, and jurisprudence. (e) At least four (4) hours shall be devoted to legal writing and oral advocacy. (f) At least two (2) hours shall be devoted to international law and international conventions. (g) The remaining six (6) hours shall be devoted to such subjects as may be prescribed by the MCLE Committee. RULE 3 COMPLIANCE PERIOD Sec. 1. Initial compliance period. The initial compliance period shall begin not later than three (3) months from the constitution of the MCLE Committee. Except for the initial compliance period for members admitted or readmitted after the establishment of the program, all compliance periods shall be for thirty-six (36) months and shall begin the day after the end of the previous compliance period. Sec. 2. Compliance Group 1. Members in the National Capital Region (NCR) or Metro Manila shall be permanently assigned to Compliance Group 1. Sec. 3. Compliance Group 2. Members in Luzon outside NCR shall be permanently assigned to Compliance Group 2. Sec. 4. Compliance Group 3. Members in Visayas and Mindanao shall be permanently assigned to Compliance Group 3. Sec. 5. Compliance period for members admitted or readmitted after establishment of the program. Members admitted or readmitted to the Bar after the establishment of the program shall be permanently assigned to the appropriate Compliance Group based on their Chapter membership on the date of admission or readmission. The initial compliance period after admission or readmission shall begin on the first day of the month of admission or readmission and shall end on the same day as that of all other members in the same Compliance Group. (a) Where four (4) months or less remain of the initial compliance period after admission or readmission, the member is not required to comply with the program requirement for the initial compliance. (b) Where more than four (4) months remain of the initial compliance period after admission or readmission, the member shall be required to complete a number of hours of approved continuing legal education activities equal to the number of months remaining in the compliance period in which the member is admitted or readmitted. Such member shall be required to complete a number of hours of education in legal ethics in proportion to the number of months

remaining in the compliance period. Fractions of hours shall be rounded up to the next whole number. RULE 4 COMPUTATION OF CREDIT UNITS Sec. 1. Guidelines The following are the guidelines for computation of credit units (CU): PROGRAMS; CREDIT UNITS; SUPPORTING DOCUMENTS 1. SEMINARS, CONVENTIONS, CONFERENCES, SYMPOSIA, IN-HOUSE EDUCATION PROGRAMS, WORKSHOPS, DIALOGUES, ROUND TABLE DISCUSSIONS BY APPROVED PROVIDERS UNDER RULE 7 AND OTHER RELATED RULES PARTICIPANT 1 CU PER HOUR CERTIFICATE OF ATTENDANCE WITH NUMBER OF HOURS 1.2 LECTURER 5 CU PER HOUR PHOTOCOPY OF PLAQUE OR SPONSOR'S CERTIFICATION RESOURCE 3 CU PER HOUR PHOTOCOPY OF PLAQUE OR SPONSOR'S SPEAKER CERTIFICATION ASSIGNED 2 CU PER HOUR CERTIFICATION FROM SPONSORING PENALIST/ ORGANIZATION REACTOR/COMMENTATOR MODERATOR/ 2 CU PER HOUR CERTIFICATION FROM SPONSORING COORDINATOR/ ORGANIZATION FACILITATOR 2. AUTHORSHIP, EDITING AND REVIEW RESEARCH/ 5-10 CREDIT UNITS DULY CERTIFIED/PUBLISHED INNOVATIVE TECHNICAL REPORT/PAPER PROGRAM/CREATIVE PROJECT BOOK 50-100 PP 101+ PUBLISHED BOOK SINGLE AUTHOR 12-16 CU 17-20 CU 2 AUTHORS 10-12 CU 13-16 CU 3 OR MORE 5-6 CU 7-11 CU BOOK EDITOR 1/2 OF THE CU OF PUBLISHED BOOK WITH PROOF AUTHORSHIP AS EDITOR CATEGORY LEGAL ARTICLE 5-10 PP 11+ PUBLISHED ARTICLE SINGLE AUTHOR 6 CU 8 CU 2 AUTHORS 4 CU 6 CU 3 OR MORE 2 CU 4 CU LEGAL 3-6 CU PER ISSUE PUBLISHED NEWSLETTER/JOURNAL NEWSLETTER/LAW JOURNAL EDITOR 3. PROFESSIONAL 6 CU PER CHAIR CERTIFICATION OF LAW DEAN CHAIR/BAR 1 CU PER LECTURE OR BAR REVIEW DIRECTOR REVIEW/ HOUR LECTURE/LAW TEACHING Sec. 2. Limitation on certain credit units. In numbers 2 and 3 of the guidelines in the preceding Section, the total maximum credit units shall not exceed twenty (20) hours per three (3) years. RULE 5 CATEGORIES OF CREDIT Sec. 1. Classes of credits The credits are either participatory or nonparticipatory. Sec. 2. Claim for participatory credit. Participatory credit may be claimed for: (a) Attending approved education activities like seminars, conferences, symposia, in-house education programs, workshops, dialogues or round table discussions. (b) Speaking or lecturing, or acting as assigned panelist, reactor, commentator, resource speaker, moderator, coordinator or facilitator in approved education activities. (c) Teaching in a law school or lecturing in a bar review class. Sec. 3. Claim for non-participatory credit Non-participatory credit may be claimed per compliance period for: (a) Preparing, as an author or co-author, written materials published or accepted for publication, e.g., in the form of an article, chapter, book, or book review which contribute to the legal education of the author member, which were not prepared in the ordinary course of the member's practice or employment. (b) Editing a law book, law journal or legal newsletter. 133

SIGMA LEGIS COPY

RULE 2 MANDATORY CONTINUING LEGAL EDUCATION

LEGAL PROFESSION & ETHICS

Sec. 1. Computation of credit hours. Credit hours are computed based on actual time spent in an activity (actual instruction or speaking time), in hours to the nearest one-quarter hour. RULE 7 EXEMPTIONS Sec. 1. Parties exempted from the MCLE. The following members of the Bar are exempt from the MCLE requirement: (a) The President and the Vice President of the Philippines, and the Secretaries and Undersecretaries of Executives Departments; (b) Senators and Members of the House of Representatives; (c) The Chief Justice and Associate Justices of the Supreme Court, incumbent and retired members of the judiciary, incumbent members of the Judicial and Bar Council, incumbent members of the Mandatory Continuing Legal Education Committee, incumbent court lawyers who have availed of the Philippine Judicial Academy program of continuing judicial education; (as amended by July 14, 2004 Resolution of the SC en banc) (d) The Chief State Counsel, Chief State Prosecutor and Assistant Secretaries of the Department of Justice; (e) The Solicitor General and the Assistant Solicitor General; (f) The Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel; (g) The Chairmen and Members of the Constitutional Commissions; (h) The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsmen and the Special Prosecutor of the Office of the Ombudsman; (i) Heads of government agencies exercising quasi-judicial functions; (j) Incumbent deans, bar reviews and professors of law who have teaching experience for at least 10 years accredited law schools; (k) The Chancellor, Vice-Chancellor and members of the Corps of Professors and Professorial Lectures of the Philippine Judicial Academy; and (l) Governors and Mayors. Sec. 2. Other parties exempted from the MCLE. The following Members of the Bar are likewise exempt: (a) Those who are not in law practice, private or public. (b) Those who have retired from law practice with the approval of the IBP Board of Governors. Sec. 3. Good cause for exemption from or modification of requirement. A member may file a verified request setting forth good cause for exemption (such as physical disability, illness, post graduate study abroad, proven expertise in law, etc.) from compliance with or modification of any of the requirements, including an extension of time for compliance, in accordance with a procedure to be established by the MCLE Committee. Sec. 4. Change of status. The compliance period shall begin on the first day of the month in which a member ceases to be exempt under Sections 1, 2, or 3 of this Rule and shall end on the same day as that of all other members in the same Compliance Group. Sec. 5. Proof of exemption. Applications for exemption from or modification of the MCLE requirement shall be under oath and supported by documents. RULE 8 STANDARDS FOR APPROVAL OF EDUCATION ACTIVITIES

Sec. 1. Approval of MCLE program. Subject to the rules as may be adopted by the MCLE Committee, continuing legal education program may be granted approval in either of two (2) ways: (1) the provider of the activity is an approved provider and certifies that the activity meets the criteria of Section 3 of this Rules; and (2) the provider is specially mandated by law to provide continuing legal education. Sec. 2. Standards for all education activities. All continuing legal education activities must meet the following standards: (a) The activity shall have significant current intellectual or practical content. (b) The activity shall constitute an organized program of learning related to legal subjects and the legal profession, including cross profession activities (e.g., accounting-tax or medical-legal) that enhance legal skills or the ability to practice law, as well as subjects in legal writing and oral advocacy. (c) The activity shall be conducted by a provider with adequate professional experience. (d) Where the activity is more than one (1) hour in length, substantive written materials must be distributed to all participants. Such materials must be distributed at or before the time the activity is offered. (e) In-house education activities must be scheduled at a time and location so as to be free from interruption like telephone calls and other distractions. RULE 9 APPROVAL OF PROVIDERS Sec 1. Approval of providers. Approval of providers shall be done by the MCLE Committee. Sec. 2. Requirements for approval of providers. Any persons or group may be approved as a provider for a term of two (2) years, which may be renewed, upon written application. All providers of continuing legal education activities, including in-house providers, are eligible to be approved providers. Application for approval shall: (a) Be submitted on a form provided by the IBP; (b) Contain all information requested on the form; (c) Be accompanied by the approval fee; Sec. 3. Requirements of all providers. All approved providers shall agree to the following: (a) An official record verifying the attendance at the activity shall be maintained by the provider for at least four (4) years after the completion date. The provider shall include the member on the official record of attendance only if the member's signature was obtained at the time of attendance at the activity. The official record of attendance shall contain the member's name and number in the Roll of Attorneys and shall identify the time, date, location, subject matter, and length of the education activity. A copy of such record shall be furnished the IBP. (b) The provider shall certify that: (1) This activity has been approved for MCLE by the IBP in the amount of ________ hours of which hours will apply in (legal ethics, etc.), as appropriate to the content of the activity; (2) The activity conforms to the standards for approved education activities prescribed by these Rules and such regulations as may be prescribed by the IBP pertaining to MCLE. (c) The provider shall issue a record or certificate to all participants identifying the time, date, location, subject matter and length of the activity. (d) The provider shall allow in-person observation of all approved continuing legal education activities by members of the IBP Board of Governors, the MCLE Committee, or designees of the Committee and IBP staff for purposes of monitoring compliance with these Rules. (e) The provider shall indicate in promotional materials, the nature of the activity, the time devoted to each devoted to each topic and identify of the instructors. The provider shall make available to each participant a copy of IBP-approved Education Activity Evaluation Form. (f) The provider shall maintain the completed Education Activity Evaluation Forms for a period of not less than one (1) year after the activity, copy furnished the IBP. 134

SIGMA LEGIS COPY

RULE 6 COMPUTATION OF CREDIT HOURS

LEGAL PROFESSION & ETHICS Any person or group who conducts an unauthorized activity under this program or issues a spurious certificate in violation of these Rules shall be subject to appropriate sanctions.

Sec. 4. Renewal of provider approval. The approval of a provider may be renewed every two (2) years. It may be denied if the provider fails to comply with any of the requirements of these Rules or fails to provide satisfactory education activities for the preceding period.

DAYS FROM THE DATE OF NOTICE), SHALL BE A CAUSE FOR LISTING AS A DELINQUENT MEMBER. The Member may use this period to attain the adequate number of credit hours for compliance. Credit hours earned during this period may only be counted toward compliance with the prior compliance period requirement unless hours in excess of the requirement are earned, in which case, the excess hours may be counted toward meeting the current compliance period requirement. RULE 13 CONSEQUENCES OF NON-COMPLIANCE

Sec. 5. Revocation of provider approval. The approval of any provider referred to in Rule 9 may be revoked by a majority vote of the IBP Board of Governors, upon recommendation of the MCLE Committee, after notice and hearing and for good cause.

Sec. 1. Non-compliance fee. A member who, for whatever reason, is in noncompliance at the end of the compliance period shall pay a non-compliance fee.

RULE 10 ACTIVITY AND PROVIDER APPROVAL FEE

Sec. 2. Listing as delinquent member. Any member who fails to satisfactorily comply with Section 2 of Rule 12 shall be listed as a delinquent member by the IBP Board of Governors upon the recommendation of the MCLE Committee, in which case, Rule 139-A of the Rules of Court shall apply.

Sec. 1. Payment of fees. Application for approval of an education activity or as a provider requires payment of an appropriate fee. RULE 11 GENERAL COMPLIANCE PROCEDURES Sec. 1. Compliance card. Each member shall secure from the MCLE Committee a Compliance Card before the end of his compliance period. He shall complete the card by attesting under oath that he has complied with the education requirement or that he is exempt, specifying the nature of the exemption. Such Compliance Card must be returned to the address indicated therein not later than the day after the end of the member's compliance period. Sec. 2. Member record keeping requirement. Each member shall maintain sufficient record of compliance or exemption, copy furnished the MCLE Committee. The record required to be provided to the members by the provider pursuant to Section 3(c) of Rule 9 should be sufficient record of attendance at a participatory activity. A record of non-participatory activity shall also be maintained by the member, as referred to in Section 3 of Rule 5. RULE 12 NON-COMPLIANCE PROCEDURES Sec. 1. What constitutes non-compliance. The following shall constitute non-compliance (a) Failure to complete the education requirement within the compliance period; (b) Failure to provide attestation of compliance or exemption; (c) Failure to provide satisfactory evidence of compliance (including evidence of exempt status) within the prescribed period; (d) Failure to satisfy the education requirement and furnish evidence of such compliance within sixty (60) days from receipt of a non-compliance notice; (e) Any other act or omission analogous to any of the foregoing or intended to circumvent or evade compliance with the MCLE requirements. Sec. 2. Non-compliance notice and 60-day period to attain compliance. A member failing to comply will receive a NonCompliance Notice stating the specific deficiency and will be given sixty (60) days from the date of notification to explain the deficiency or otherwise show compliance with the requirements. Such notice shall contain, among other things, the following language in capital letters: YOUR FAILURE TO PROVIDE ADEQUATE JUSTIFICATION FOR NON-COMPLIANCE OR PROOF OF COMPLIANCE WITH THE MCLE REQUIREMENT BY (INSERT DATE 60

RULE 14 REINSTATEMENT Sec. 1. Process.The involuntary listing as a delinquent member shall be terminated when the member provides proof of compliance with the MCLE requirement, including payment of non-compliance fee. A member may attain the necessary credit hours to meet the requirement for the period of noncompliance during the period the member is on inactive status. These credit hours may not be counted toward meeting the current compliance period requirement. Credit hours attained during the period of non-compliance in excess of the number needed to satisfy the prior compliance period requirement may be counted toward meeting the current compliance period requirement. Sec. 2. Termination of delinquent listing administrative process. The termination of listing as a delinquent member is administrative in nature but it shall be made with notice and hearing by the MCLE Committee. RULE 15 MANDATORY CONTINUING LEGAL EDUCATION COMMITTEE Sec 1. Composition. The MCLE Committee shall be composed of five (5) members, namely: a retired Justice of the Supreme Court, as Chair, and four (4) members, respectively, nominated by the IBP, the Philippine Judicial Academy, a law center designated by the Supreme Court and associations of law schools and/or law professors. The members of the Committee shall be of proven probity and integrity. They shall be appointed by the Supreme Court for a term of three (3) years and shall receive such compensation as may be determined by the Court. Sec. 2. Duty of the Committee.The MCLE Committee shall administer and adopt such implementing rules as may be necessary subject to the approval by the Supreme Court. It shall, in consultation with the IBP Board of Governors, prescribe a schedule of MCLE fees with the approval of the Supreme Court. Sec. 3. Staff of the IBP. The IBP shall employ such staff as may be necessary to perform the record-keeping, auditing, reporting, approval and other necessary functions. Sec. 4. Submission of annual budget. The IBP shall submit to the Supreme Court an annual budget for a subsidy to establish, operate and maintain the MCLE Program. This resolution shall take effect in October 2000, following its publication in two (2) newspaper of general circulation in the Philippines. Adopted this 22nd day of August, 2000.

ANNEXED LEGISLATIVE AND EXECUTIVE ISSUANCES 135

SIGMA LEGIS COPY

(g)

LEGAL PROFESSION & ETHICS

AN ACT REQUIRING COURTS TO GIVE PREFERENCE TO CRIMINAL CASES WHERE THE PARTY OR PARTIES INVOLVE ARE INDIGENTS. Sec. 1. Any provision of existing law to be contrary notwithstanding and with the exception of habeas corpus and election cases and cases involving detention prisoners, and persons covered by Republic Act Numbered Four thousand nine hundred eight, all courts shall give preference to the hearing and/or disposition of criminal cases where an indigent is involved either as the offended party or accused. The trial in these cases shall commence within three days from date of arraignment and no postponement of the hearings shall be granted except on the ground of illness of the accused or other similar justifiable grounds. City and provincial fiscals and courts shall forthwith conduct the preliminary investigation of a criminal case involving an indigent within three days after its filing and shall terminate the same within two weeks. Sec. 2. As used in this Act, the term "indigent" shall refer to a person who has no visible means of income or whose income is insufficient for the subsistence of his family, to be determined by the fiscal or judge, taking into account the members of his family dependent upon him for subsistence. Sec. 3. An indigent who is the offended party, respondent or an accused in a criminal case and who desires to avail of the preference granted under this Act shall file a sworn statement of the fact of his being indigent and the said sworn statement shall be sufficient basis for the court or fiscal to give preference to the trial and disposition of such criminal case. Sec. 4. Any wilful or malicious refusal on the part of any fiscal or judge to carry out the provisions of this Act shall constitute sufficient ground for disciplinary action which may include suspension or removal.

Sec. 5.

This Act shall take effect upon its approval.

Approved: August 4, 1969

RA 6034 (1969) AN ACT PROVIDING TRANSPORTATION AND OTHER ALLOWANCES FOR INDIGENT LITIGANTS. Sec. 1. Any provision of existing law to the contrary notwithstanding, any indigent litigant may, upon motion, ask the Court for adequate travel allowance to enable him and his indigent witnesses to attendant the hearing of a criminal case commenced by his complaint or filed against him. The allowance shall cover actual transportation expenses by the cheapest means from his place of residence to the court and back. When the hearing of the case requires the presence of the indigent litigant and/or his indigent witnesses in court the whole day or for two or more consecutive days, allowances may, in the discretion of the Court, also cover reasonable expenses for meal and lodging. For the purpose of this Act, indigent litigants shall include anyone who has no visible means of income or whose income is insufficient for his family as determined by the Court under Section 2, hereof. Sec. 2. If the court determines that the petition for transportation allowance is meritorious, said court shall immediately issue an order directing the provincial, city or municipal treasurer to pay the

indigent litigant the travel allowance out of any funds in his possession and proceed without delay to the trial of the case. The provincial, city or municipal treasurer shall hold any such payments as cash items until reimbursed by the national government. Sec. 3. All payments of travel allowances made by provincial, city and municipal treasurer under this Act as of October 31 each year, shall be transmitted to the Commissioner of the Budget not later than November 30 each year for inclusion in the annual General Appropriations Act. The necessary sum is hereby authorized to be appropriated out of the funds in the National Treasury not otherwise appropriated. Sec. 4. This Act shall take effect upon its approval. Approved: August 4, 1969

RA 6035 (1969)

AN ACT REQUIRING STENOGRAPHERS TO GIVE FREE TRANSCRIPT OF NOTES TO INDIGENT AND LOW INCOME LITIGANTS AND PROVIDING A PENALTY FOR THE VIOLATION THEREOF. Sec. 1. A stenographer who has attended a hearing before an investigating fiscal or trial judge or hearing commissioner of any quasi-judicial body or administrative tribunal and has officially taken notes of the proceeding thereof shall, upon written request of an indigent or low income litigant, his counsel or duly authorized representative in the case concerned, give within a reasonable period to be determined by the fiscal, judge, commissioner or tribunal hearing the case, a free certified transcript of notes take by him on the case. Sec. 2. A litigant who desires to avail himself of the privilege granted under Section one hereof shall, at the investigation, hearing, or trial, establish his status as an indigent or low income litigant and the investigating fiscal or judge or commissioner or tribunal hearing the case shall resolve the same in the same proceeding. For the purpose of this Act, an "indigent or low income litigant" shall include anyone who has no visible means of support or whose income does not exceed P300 per month or whose income even in excess of P300 per month is insufficient for the subsistence of his family, which fact shall be determined by the investigating fiscal or trial judge or commissioner or tribunal hearing the case taking into account the number of the members of his family dependent upon him for subsistence. Sec. 3. Any stenographer who, after due hearing in accordance with the pertinent provisions of R.A. 2260, as amended, has been found to have violated the provisions of Section one of this Act or has unreasonable delayed the giving of a free certified transcript of notes to an indigent or low income litigant shall be subject to the following disciplinary actions: b. suspension from office for a period not exceeding thirty (30) days upon finding of guilt for the first time; c. (b) suspension from office for not less than thirty (30) days and not more than sixty (60) days upon finding of guilt for the second time; and d. removal from office upon finding of guilt for the third time. Sec. 4. This Act shall apply to all indigent or low income litigants who, at the time of its approval, have pending cases in any fiscal office, court, or quasijudicial body or administrative tribunal. Sec. 5. The Department of Justice shall prescribe such rules and regulations as may be necessary to carry out the purposes of this Act, and the Department Head concerned shall provide the necessary supplies and authorize the use of government equipment by the stenographers concerned. Sec. 6. This Act shall take effect upon its approval. Approved: August 4, 1969.

136

SIGMA LEGIS COPY

R.A. 6033 (1969)

LEGAL PROFESSION & ETHICS P.D. 543 (1974)

to penalize acts which obstruct or frustrate or tend to obstruct or frustrate the successful apprehension and prosecution of criminal offenders;

AUTHORIZING THE DESIGNATION OF MUNICIPAL JUDGES AND LAWYERS IN ANY BRANCH OF THE GOVERNMENT SERVICE TO ACT AS COUNSEL DE OFICIO FOR THE ACCUSED WHO ARE INDIGENT IN PLACES WHERE THERE ARE NO AVAILABLE PRACTICING ATTORNEYS

NOW, THEREFORE, I, FERDINAND, E. MARCOS, President of the Philippines, by virtue of the powers vested in me by law do hereby decree and order the following:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution as commander-in-Chief of the Armed Forces of the Philippines, and pursuant to Proclamation No. 1081, dated September 21, 1972, and General Order No. 1, dated September 22, 1972, as amended, do hereby order and decree as follows: Sec. 1. Designation of Municipal Judges and lawyers in any branch of the government service, as counsel de oficio. In places where there are no available practicing lawyers, the District Judge or Circuit Criminal Court Judge shall designate a municipal judge or a lawyer employed in any branch, subdivision or instrumentality of the government within the province, as counsel de oficio for an indigent person who is facing a criminal charge before his court, and the services of such counsel de oficio shall be duly compensated by the Government in accordance with Section thirtytwo, Rule One Hundred Thirty Eight of the Rules of Court. If the criminal case wherein the services of a counsel de oficio are needed is pending before a City or municipal court, the city or municipal judge concerned shall immediately recommend to the nearest District Judge the appointment of a counsel de oficio, and the District Judge shall forthwith appoint one in accordance with the preceding paragraph. For purposes of this Decree an indigent person is anyone who has no visible means of support or whose income does not exceed P300 per month or whose income even in excess of P300 is insufficient for the subsistence of his family, which fact shall be determined by the Judge in whose court the case is pending, taking into account the number of the members of his family dependent upon him for subsistence. Sec. 2. Repealing Clause. All laws and decrees inconsistent with this Decree are hereby repealed. Section 3. Effectivity. This Decree shall take effect immediately. DONE in the City of Manila, this 21st day of August, in the year of Our Lord, nineteen hundred and seventy-four.

P.D. 1829. (1981)

PENALIZING OBSTRUCTION OF APPREHENSION AND PROSECUTION OF CRIMINAL OFFENDERS

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts: (a) preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats; (b) altering, destroying, suppressing or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases; (c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest prosecution and conviction; (d) publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes; (e) delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the fiscal's offices, in Tanodbayan, or in the courts; (f) making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in, criminal cases; (g) soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discounting, or impeding the prosecution of a criminal offender; (h) threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of or in official proceedings in, criminal cases; (i) giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or to the court. If any of the acts mentioned herein is penalized by any other law with a higher penalty, the higher penalty shall be imposed. Sec. 2. If any of the foregoing acts is committed by a public official or employee, he shall in addition to the penalties provided thereunder, suffer perpetual disqualification from holding public office. Sec. 3. This Decree shall take effect immediately. Done in the City of Manila, this 16th day of January, in the year of Our Lord, nineteen hundred and eighty-one.

WHEREAS, crime and violence continue to proliferate despite the sustained vigorous efforts of the government to effectively contain them; WHEREAS, to discourage public indifference or apathy towards the apprehension and prosecution of criminal offenders, it is necessary 137

SIGMA LEGIS COPY

WHEREAS, under existing law, Municipal Judges and other lawyers in the government service are prohibited from practicing law; WHEREAS, there are some places where there are no available legal practitioners, as a result of which the trial of cases in court is delayed to the prejudice particularly of detention prisoners; WHEREAS, for the protection of the rights of the accused who cannot afford to hire lawyers from other places and to prevent miscarriage of justice, it is necessary that they be provided with counsel;