Legal And Judicial Ethics: Faculty Of Civil Law University Of Santo Tomas ·

· LEGAL AND JUDICIAL ETHICS

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2019 GOLDEN NOTES

FACULTY OF CIVIL LAW UNIVERSITY OF SANTO TOMAS · . . •

MANILA

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The UST GOLDEN NOTES is the annual student-edited bar review material of the University of Santo Tomas, Faculty of Civil Law. Communications regarding the Notes should be addressed to the Academics Committee of the Team: Bar-Ops.

ADDRESS:

TEL.

NO:

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Academics Committee Team Bar-Ops Faculty of Civil Law University of Santo Tomas Espana,Manila 1008 •

(02) 731-4027 (02) 406-1611 loc. 8578

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Academics Committee Faculty of Civil Law University of Santo Tomas Espana, Manila 1008 All rights reserved by the Academics Committee of the Faculty of Civil Law of the Pontifical and Royal University of Santo Tomas, the Catholic University of the Philippines. 2019 Edition. No portion of this material may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devises or in any other form, for distribution or sale, without a written permission. A copy of this material without the corresponding code either proceeds from an illegal source or is in possession of one who has no authority to dispose the same. No.

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Printed in the Philippines, July 2019.

ACADEMIC YEAR 2019-2020 CIVIL LAW STUDENT COUNCIL LYODYCHJE Q. CAMARAO MARIA FRANCES FAYER. GUTIERREZ KRYSTAL GAYLE R. DIGAY

PRESIDENT INTERNAL VICE PRESIDENT SECRETARY

TEAM: BAR-OPS NICOLE MARIE A. CORTES MARYLOU RENZI M, OLOTEO CHRISTINE JOYCE P;ANDRES KRIZA NINA B. MALALUAN ELOUISA ANN DC. CARREON CIARI T, MENDOZA ELISHA ELAI~E D. BAYOT JOSEPHINE GRACE W. ANG PATRICIA MAE D. GUILLERMO RAFAEL JEROME M. MENDOZA KHYNA MATHEA N. CANLAS MARSHAN DEINN S. GUALBERTO KIER JOHN V. UY GLENN MATTHEW C. MANLAPID VAN ANGELO K. RESPICIO JAMES ROSS L, TAN LOUELL JUDE B, QUE MON FRANCIS A, TOLENTINO CLARA LOUISSE J. YUMANG JOCHRIS DANIEL Z. GUADES JERREMJAH KRIZIAH B, BATALLER

CHAIRPERSON VICE-CHAIRPERSON SECRETARY ASST. SECRETARY HEAD, PUBLIC RELATIONS OFFICER ASST. HEAD, PUBLIC RELATIONS OFFICER HEAD, FINANCE COMMITTEE HEAD, HOTELACCOMODATIONS COMMITTEE ASST. HEAD, HOTEL ACCOMODATIONS COMMITTEE ASST. HEAD, HOTEL ACCOMODATIONS COMMITTEE ASST. HEAD, HOTEL ACCOMODATIONS, COMMITTEE ASST. HEAD, HOTEL ACCOMODATIONS, COMMITTEE LOGISTICS COMMITTEE LOGISTICS COMMITTEE LOGISTICS COMMITTEE LOGISTICS COMMITTEE LOGISTICS COMMITTEE SENIOR MEMBER SENIOR MEMBER SENIOR MEMBER SENIOR MEMBER

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ATTY. AL CONRAD B, ESPALDON ADVISER

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ACADEMICS COMMITTEE SECRETARY GENERAL ASST. SECRETARY GENERAL EXECUTIVE COMMITTEE EXECUTIVE COMMITTEE EXECUTIVE COMMITTE EXECUTIVE COMMITTEE LAYOUT ARTIST COVER DESIGN ARTIST .

EDREA JEAN V. RAMIREZ AYA DOMINIQUE S. CAPARAS ARIANNA LAINE T. SARMIENTO BELLE COLLEEN T. DE LEON PAMELA NICOLES. MANALO RUTH MAE G. SANVICTORES LAURISSE MARIE T. PERIANES CIARI T. MENDOZA

LEGAL & JUDICIAL ETHICS COMMITTEE AIYANA YASMIN A. CRUZ

LEGAL & IUDICIA.L ETHICS COMMITTEE HE.AJl

MEMBERS NICOLE G. AMANTE RO MINA JUD EEC. CABILI JOHN CHRISTOPHER GATTOC LAURA P. MANGANTULAO PRECIOUS ESTHER UCHENNA M. OBIEGBU GILBERT JOSHUA UROLAZA

ATTY. AL CONRAD B. ESPALDON ADVISER

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FACULTY OF CIVIL LAW

UNIVERSITY OF SANTO TOMAS

ACADEMIC OFFICIALS . ATTY. NILO T. DIVINA

REV. FR. ISIDRO C. A~ANO, O.P. REGENT

DEAN

ATTY. ARTHUR B. CAPILI FACULTY SECRETARY

ATTY. ELGIN MICHAEL C. PEREZ LEGAL COUNSEL UST CHIEF JUSTICE ROB.ERTO CONCEPCION LEGAL AlD CLIN[C

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JUDGE PHILIP A. AGUINALDO SWDB COORDINATOR

LENY G. GADANIA, R.G.C. GUIDANCE COUNSELOR

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OUR DEEPEST APPRECIATION TO OUR MENTORS AND INSPIRATION JUDGE OSCAR PIMENTEL •

JUDGE PHILIP A. AGUINALDO JUSTICE AMY C. JAVIER JUSTICE MYRA G. FERNANDEZ ATTY. ELGIN MICHAEL C. PEREZ ATTY.ARNOLD E. CACHO JUDGE NOLI C. DIAZ JUDGE GEORGINA D. HIDALGO DEAN JOSE I. DELA RAMA, JR.

For being our guideposts in understanding the intricate sphere of Legal and Judicial Ethics. -Acadernlcs Committee 2019

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Table of Contents Practice of Law (Rule 138)

Concept u, •••,

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Definition of the practice oflaw Practice of law is a privilege, not a right Law as a profession, not a business or trade Qualifications for Admission to the Bar Appearance of Non-Lawyers Law student practice rule (Rule 138-A) Non-lawyers in courts Non-lawyers in administrative tribunals Proceedings where lawyers are prohibited from appearing as counsels Sanctions for Practice or appearance without authority Lawyers without authority

Persons who are not lawyers Public officials and the practice of law

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1 1 4 4

5 7 8 9 10 10 11 11

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u,uu1111tu1111111u111

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j

11

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Prohibition or disqualification of former government attorneys Public officials who cannot practice law or can practice law with restrictions Lawyers who are authorized to represent government Lawyer's Oath .' Code of Professional Responsibility To society (Canons 1-6) ., Respect for law and legal processes Efficient and convenient legal services True, honest, fair, dignified and objective information on legal services Participation in the improvement and reforms in the legal system Participation in legal education program :-. To the legal profession Integrated Bar of the Philippines (Rule 139-A) m Membership and dues Upholding the dignity and integrity of the profession Courtesy, fairness, and candor towards professional co!leagues No assistance in unauthorized practice of law To the courts Candor, fairness and good faith towards the courts Respect for courts and judicial officers Assistance in the speedy and efficient administration of justice Reliance on merits of his cause and avoidance of any impropriety which tends to influence or gives the appearance of influence upon the courts To the clients Availability of service without dtscrimlnation : Services regardless of a person's status ~ Services as counsel de officio Valid grounds for refusal to serve Candor, fairness and loyalty to clients Confidentiality rule Privileged communications Conflict of interest : Compliance with laws L

14 15 17 18 19 21 21 30 34 37 37 39 39 43 44 47 51 54 54 57 61 66 67 69 70 71 72 73 74 74 76 82

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Concurrent practice of another profession Client's moneys and properties Fiduciary relationship Co-mingling offunds Delivery offunds Borrowing or lending Fidelity to client's cause Competence and diligence Adequate preparation

Negligence Collaborating counsel

83 , 85

86 87 88 90

91 94 ,n

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t1hnul1thlHIIIHUtllltlllUUIIIIUl1ttUIIUUOIUIUIUHhHIIIUUUlohu1IIUUfUIUIIIU:lttt1n•

Duty to apprise client Representation with zeal within legal bounds Use of fair and honest means : : Client's fraud : Procedure in handling cases Attorney's Fees Acceptance fees Contingency fee arrangements Attorney's Liens :: Fees and controversies with clients ( Quantum Meruit) Concepts of attorney's fees Preservation of client's confidences Prohibited disclosures and use Disclosure, when all owed Withdrawal ofServices ,

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94 95 96 98

:99

99 100 101

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105 106 109 111 113 114.

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114 116 117

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Suspension, disbarment and discipline oflawyers (Rule 139-B, Rules of Court) Nature and characteristics of disciplinary actions against lawyers : Sui Generis :, Prescription , , Grounds Proceedings ; Discipline of Filipino Lawyers practicing abroad

120

Readmission to the Bar Lawyers who have been suspended Lawyers who have been disbarred Lawyers who have been repatriated

136

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Requirements Non-Compliance Exemptions Sanctions Bar Matter 2012, Rule on Mandatory Legal Aid Service Notarial Practice (A.M. No. 02-8-13-SC) Qualifications on notary public Term of office of notary public Powers and Limitations Notarial Register Jurisdiction of notary public and place of notarization Revocation of commission

122

123 124 126

131 136 137

140

Mandatory Continuing Legal Education

Purpose

120

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143 ,h,

143 143

143 144

145 145

148 148 151 152 159

160 160

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Competent evidence of identity San cti O ns

161 ,u,,,11111

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,.u•o••• .. ••••H••••··············162

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Judicial Etl:ics Discipline of members of the Judiciary :: Lower court judges and justices of the Court of Appeals, Sandiganbayan and Court of Tax Appeals (Rule 140) Grounds Sanctions imposed by the Supreme Court on erring members of the Judiciary Disqualification of Justices and Judges (Rule 137) Compulsory Voluntary

216 216 216

Legal Fe es

2 22

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Manner of Payment Fees in Lien Persons authorized to collect Legal Fees

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163 204 208 209 214

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222 222 222

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Legal Fees : Recovery of Costs Prevailing Party Dismissed Appeal or Action Frivolous Appeal.. False Allegations Non-Appearance of Witness

225 225 225 225 225 225 225

Legal Forms Quitclaims in Labor Cases Simple Contracts· Lease, Sale of Realty or Personal property

226 227 231

Prorn isso ry NOte .,,,,,,,11,,, Verification and Certificate of Non-forum Shopping Notice of Hearing and Explanation (All Jevels) Affldavtts- Loss, Change of Name

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232 241 241 246

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DISCLAIMER THE RISK OF USE OF THIS BAR REVIEW MATERIAL SHALL BE BORNE BY THE USER •

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PRACTICE OF LAW NOTE: A lawyer who is a detention prisoner is not allowed to practice his profession as a necessary consequence of his status as a detention prisoner. All prisoners, whether under preventive detention or serving final sentence, cannot practice their profession nor engage in any business or occupation, or hold office, elective or appointive, while in detention. This is a necessary consequence of arrest and detention (People v. Maceda, G.R. Nos. 8959.1-96, January 24, 2000).

LEGAL ETHICS Legal Ethics It is a branch of moral science which treats of the duties which an attorney owes to the court, to his client, to his colleagues in the profession and to the public as embodied in the Constitution, Rules of Court, the Code of Professional Responsibility, Canons of Professional Ethics, jurisprudence, moral, law and special laws (Malcolm, 1949).

Sources

of ethical

standards

for

Criteria [CAHA] 1.

c.

Bar i. Code of Professional Responsibility ii. Constitution iii. Rules of Court Bench i. New Code of Judicial Conduct for the Philippine Judiciary ii. Rules of Court Other personnel - Code of Conduct for Court Personnel

2.

3.

Decisions/Resolutions of the Supreme Court Supreme Court Circulars Order/Resolution of other courts IBP Issuances Treatises and Publications

b. c. d. e.

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PRACTICE OF LAW

Compensation - implies that one must have

Application of law, legal principle, practice or procedure- calls for legal knowledge, training and experience;

2. Secondary a.

of law

presented himself to be in active practice and that his professional services are available to the public for compensation, as a source · of livelihood or in consideration of his said services;

1. Primary

b.

practice

the

Judiciary

a.

to determine

4.

Habituality

- implies customary or habitually holding oneself out to the public as a lawyer. Practice of law is more than an isolated appearance for it consists in frequent or customary action; and Attorney-Client relationship - engaging in the practice of law presupposes the existence of a lawyer-client relationship. Practice of Jaw includes work as a litigator, in-house counsel, giving of legal advice, teaching of law, and foreign assignment which requires the knowledge and application of the laws.

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Concept Q: Ronnie, a paralegal in a law firm, helped

· Beth in a property dispute in which she was • involved by giving her legal advice and preparing a complaint that she eventually filed in court under her own signature. When the lawyer for the defendant learned of it, he told Ronnie to desist from practicing law. But he disputed this, claiming that he had not practiced law since he did not receive compensation from Beth for his help. ls Ronnie correct? (2011 Bar)

Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training, and experience ( Cayetano v. Monsod, G.R. No. 100113, September 3, 1991). The following acts constitute practice oflaw: a.

b. c, d.

Giving of advice or rendering any kind of service that involves legal knowledge; Appearance in court and conduct of cases in court; Preparation of pleadings and other papers incident to actions; and Notarial acts.

A: NO. The receipt of compensation is. not the sole determinant of legal practice. Giving of advice or rendering any kind of service that involves legal knowledge is also considered as practice of Jawas defined in Cayetano v.

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UNIVERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW .••

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• LEGAL ETHICS Monsod. As such, Ronnie should desist from

Q: Evelyn works as a court stenographer at the Regional Trial: Court of Legaspi City. One day, Evelyn offered to extrajudicially settle the estate of the mother of her friend, Leticia. Evelyn was paid for her services. Leticia later on learned that Evelyn had no authority to settle her deceased mother's estate as she was not a lawyer but an ordinary court employee. Consequently, Leticia filed an administrative case against • Evelyn. Does the preparation of an extrajudicial settlement of estate constitute practice of law?

giving legal advice since the same is considered a practice oflaw for which he is not qualified. Q: Medado passed the bar exams in 1979 and took the Attorney's Oath at PICC. He was scheduled to sign in the Roll of Attorneys but on his scheduled date, he failed to do so allegedly because he had misplaced the Notice to Sign the Ron of Attorneys given by the Office of the Bar • Confidant when he went home to his province for a vacation. Several years later, Medado found the Notice and realized that what he signed at the PICC was merely an attendance record, In 2012, Medado filed the instant Petition, praying that he be allowed to sign in the Roll of Attorneys.

A: YES. The preparation of an extrajudicial settlement of the estate constitutes "practice of

Jaw" as defined in the case of Cayetano v. Monsod. Not being a lawyer, Evelyn had no authority to prepare and finalize an extrajudicial settlement of estate. Worse, she received money from Leticia for her services. In preparing and finalizing the extrajudicial settlement of estate and receiving compensation for the same when she is not a lawyer, Evelyn is guilty of simple misconduct (Arienda v. Court Stenographer Monilla, A.M. No. P-11-'2980, June 10, 2013).

a. Should his petition be allowed? b. Did he engage in unauthorized practice oflaw? A: a. YES. Not allowing Medado to sign the Roll of Attorneys would be akin to imposing upon him the ultimate penalty of disbarment which is reserved for the most serious ethical transgressions of members of the Bar. Medado demonstrated good faith .and good moral character when he finally filed the instant Petition to Sign in the Roll of Attorneys, It was not a third party who called the Court's attention to petitioner's omission; rather, it was Medado himself who acknowledged his own lapse, albeit after the passage of more than 30 years.

Persons excluded in the term "Practicing Lawyer" 1.

Government employees and incumbent elective officials; 2. Lawyerswho, by law, are prohibited to appear in court; 3. Supervising lawyers of students enrolled in law student practice in duly accredited legal clinics of law schools and lawyers of Non-Government Organizations (NGOs) and People's Organizations (POs) who by the nature of their work already render free legal aid tto indigent and pauper litigants; and 4. Lawyers not covered under subparagraphs (i) to (iii.) of Sec. 4, B.M. No. 2012 including those who are employees in the private sector but do not appear for and in behalf of parties in courts of law and quasijudicial agencies(Section 4, B.M. No. 2012).

b. YES, he did engage in unuauthorized practice of law. Medado may have at first operated under an honest mistake of fact when he thought that what he had signed at the PICC entrance before the oath-taking was already · the Roll of Attorneys. However, the moment he realized that what he had signed was merely an attendance record, he could no longer claim an honest mistake of fact as a valid justification. In spite of this knowledge, he chose to continue practicing law without taking the necessary steps to complete all the requirements for admission to the Bar, he willfully engaged in the unauthorized practice of law (In Re: Petition to sign in the Roll of Attorneys Michael Medado, B.M. No. 2540, September 24, 2013).

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Q: Atty. Ladaga, a clerk of court, appeared as counsel of his cousin in a criminal case for falsification of public documents before the MeTC of Quezon City, The appearance of Atty. Ladaga in said case was without the previous permission of the Court, Did Atty. Ladaga violate the Code of Conduct and Ethical Standards for Public Officials and Employees by engaging in private practice?

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UN I VER SIT Y O F SA NT O TO M AS

2 0 1 9 G O L D E N N OT E S

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PRACTICE OF LAW A: YES. "Private practice" of a profession, which is prohibited, 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 true that he filed leave applications corresponding to the dates he appeared in court.but he failed to obtain a prior permission from the head of the Department (OCA v. Atty. Ladoga, A.M. No. P-991287,January 26, 2001). · .. ·

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DEFINITIONS . ·

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Attorney of record is an attorney whose name is entered in the records of an action or suit as the lawyer of a designated party thereto. 4. Counsel de oficio

An attorney appointed by the court to defend an indigent defendant in a criminal action.

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5. Counsel de parte ..

1. Bar vs. Bench

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A private counsel of'a party secured by him, without intervention rtom the government.

· · ·, . BAR . . . · BENCH . ·. Refers to the whole Refers to the whole body of attorneys and body of judges and counselors. justices. Collectively, the members of the legal rofesslon.

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6. Amicus Curiae An experienced and impartial attorney invited by the court to appear and help in the disposition of the issues submitted to it. Amicus curiae appear in court not to represent any particular party but only to assist the court (plural: Amici Curiae).

2. Bar Admission It is the act by which one is licensed to practice before courts of a particular state or jurisdiction after satisfying the following requirements:

A bar association which appears in court as amicus curiae or a friend of the court; it acts merely as a consultant to guide the court in doubtful questions or issues pending before it. 8. Practicing Lawyer vs.Trial lawyer (2006 Bar)

3. Attorney-at-law vs.Attorney-in-fact

PRACTIONG ·.

· · LAWYER · One engaged in the practice of law, which • is not limited to the conduct of cases in court, but includes legal advice and counseling, and the preparation of instruments . and contracts by which legal rights are secured.

. ATTORNEY-IN-FACT · Simply an agest whose authority is strictly limited by the instrument appointing him. His authority is provided in a special power of attorney, or general power of attorney, or letter of attorney. He is not necessarily a lawyer.

TRIALLAWVER . . One who personally handles cases in court, administrative agencies or boards and engages in actual trial work, either for the prosecution or for the defense of cases of clients.

9. Lead counselvs, In-housecounselvs, counsel 4. Attorneyofrecordvs.Attorneyad hoc . 'ATTORNEY OF

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• LEAD . . ' IN-HOUSE I . COUNSEL HOUSE . . · . . . .. . COUNSEL

· ATTORNEY AD HOC

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7. Amicus Curiae par excellence

a. Bar examinations; b. Period of residency; and c. Admission on grounds of reciprocity after period of years as member 6f the bar (Pineda, 2009 ).

A'FTORNEY-AT·LAW Class of persons who are licensed officers of the court empowered to appear, prosecute and defend, and upon whom peculiar duties, responsibilities and liabilities are developed by law as a consequence.

An attorney ad hoc is a person appointed by the court to defend an absentee defendant in the suit in which the appointment was made.

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Of

OF .COUNSEL · . · .

U NlVERSITY OF SANTO TOMAS~ FA CUL TY OF CrVIL LAW

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LEGAL ETHICS A lawyer on

either side of a litigated action who is charged with the principal management and direction of a party's case, as· disti ngulshed from his juniors or subordinates.

One who acts as I attorney for a business though carried as an employee of that business and not as an independent lawyer.

A party to a'lawsult, who represents himself, is appearing in the case "prose."

An experienced lawyer, usually a retired member of the judiciary, employed. by Jaw firms as consultants.

NOTE: When there is prohibition to practice Jaw, it refers to all other cases except where such person would appear in court to defend himself (Pro Se).

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13. Advocate It is a lawyer who pleads on behalf of someone else. He pleads the cause of another before a tribunal or judicial court (Pineda, 2009). 14. Barrister

10, Public Prosecutor vs. Private Prosecutor , · · · . PUBLIC ' · PROSECUTOR

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He is a quasi·judicial officer who represents the state in criminal proceedings.

He is a person entitled to practice law as an advocate or counsel in superior courts (Pineda, 2009).

PRIVATE · .. PROSECUTO.R · : ..

. A private prosecutor is a lawyer engaged by a litigant to

Q: The Integrated Bar of the Philippines

(IBP) may intervene in a case involving a matter of public law or professional concern as: (2014 Bar)

intervene in the prosecution of a criminal action when the offended party is entitled to indemnity and has not waived expressly, reserved or instituted the civil action for damages. He is under the direction and control of the public

prosecutor (Sec. Rule

110

amended, 2002.

RRC May

A:Amicus Curiae par excellence .:

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-PRIVILEGE

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Nature of the practice oflaw ., ,~

The practice of law is(not a natural, property or constitutional right but a mere privilege. lt is not a right granted to anyone who demands it but a privilege to be extended or withheld in the exercise of sound judicial dlscretlon. It is a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness(Pineda, 2009).

S as 1,

11. Assumpsit (2006 Bai·) NOTE: It becomes a property right if there is a contract for Attorney's Fees. The duty of the court is not only to see that a lawyer acts in a proper and lawful manner; it is also its duty to see that a lawyer is paid his just fees. With his capital consisting of his brains and with his skill acquired at tremendous cost not only in money but in expenditure of time and energy, he is entitled to the protection of any judicial tribunal against any attempt on the part of his client to escape payment of his just compensation. It would be ironic if after putting forth the best in him to secure justice for his client he himself would not get his due (Rosario v. de Guzman G.R. No. 191247, July 10, 2013).

Literally means "he has undertaken." It is an action for the recovery of damages by reason of the breach or non-performance of a simple contract, either express or implied, whether made orally or in writing. Assumpsit is the word always used in pleadings by the plaintiff to set forth the defendant's undertaking or promise. NOTE: Claims in action of assumpsit

are ordinarily divided Into (a) common or indebitatusassumpsit, brought usually on an implied promise, and (b) special assumpsit; founded on an express promise.

12.ProSe ·

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UNIVERSITY OF SANTO TOMAS GOLDEN NOTES

,) 2019

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PROFESSION, NOT BUSINESS

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PRACTICE OF LAW applicant must be [C21 ·GRENAPOS]:

Law is a profession and not a trade

The legal profession is not a business. It is not a money-making trade slrnilarto that of a

1. Citizen of the Philippines:

businessman employing a strategy for monetary gain. It is a sacred profession imbued with public interest whose primary objective is public service, as it is an essential part in the administration of justice and a profession in pursuit of which pecuniary reward is considered merely incidental. The practice of Jaw is a noble calling in which emolument is a byproduct, and the highest eminence may be attained without making much money (Burbe v.

3.

2. At least 21 years of age;

satisfactory Evidence of good moral character; 6. No charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines (Sec. 2, Rule 138, RRC) 7. Must have complied with the Academic requirements:

At01, Maqulta, AC No. 99-634,June 10, 2002). : ·.':PO°"'.'ER O.F THF; SUPREME COURT TO ·. .- · . ·

.PROMULGATE RULES

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Pre-Law - 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 (Sec. 6, Rule 138, RRC].

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The Supreme Court has the power to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law," the Integrated Bar, and legal assistance to the underprivileged (Sec. 5(5), Art 1987

vtu.

allowed

to

The 1987 Constitution no longer provides for

requh·ed the PhlLSAT a! a prerequisite for admission to the basic law courses

the power of the legislature to repeal, alter and supplement the Rules promulgated by the Supreme Court regulating the practice of law.

leading to either a Bachelor of Laws or Juris Doctor degree beginning school year

Who may practice law

2017- 2018.

Any person heretofore duly admitted as ;;i member of the bar, or hereafter admitted as such in accordance with the provisions of the rule, and who is in good and regular standing, is entitled to practice law (Sec. l.Rule 138, Rules

Law proper - satisfactorily completed the following courses in a law school or university duly recognized by the government:

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a. b.

Civil Law; :· Commercial Law; c. Remedial Law; d. Criminal Law! e. Public And · Private International Law; [ Political Law; g. Labor And Social Legislation; h. Medical Jurisprudence; i. Taxation; And j. Legal Ethics (Sec. 5, Rule 138, RRC)

of Court). ·

ADMISSION TO THE BAR

Admission

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NOTE: Pursuant to the power of the Legal 'Education Board (l,EB} to prescribe the minimum standards for law admission under Section 7(e) of Republic Act No. 7662, titled the "Legal Education Reform Act of 1993," the LEB, under LEB Memorandum Order No. 7 Series of 2016,

Constitution]. Legislative Branch is NOT regulate the practice of law

Of Good moral character;

4. A Resident of the.Philippines: 5. Must produce before the Supreme Court

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to Philippine Bar

Passing the Bar examination is not sufficient for admission of a person to the Philippine Bar. He still has to take the oath of office and siBn the Roll of Attorney's as prerequisites to admission.

8. Must Pass the bar examinations; 9. Take the lawyer's Oath; and 10. Sign the Roll of Attorneys.

Requirements for admission to the Bar Under Sections 2, 5 and 6 of Rule 138, the

U NlV£RS1TY OF SANTO TOMAS,;

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FACULTY OF ClVIL LAW

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LEGAL ETHICS The 5-Strlke Rule ls LIFTED

Philippine citizenship, 14 years after reaching the age of majority {required under the 1935 Constitution)?

Under the S-strike rule, a bar candidate shall be disqualified after failing thrice; provided that the candidate may take a fourth or fifth examination ifhe successfully completes a one· year refresher course for each examination.

having elected Philippine citizenship.14 years after reaching the age of majority. Ching offered no reason why he delayed the election of Philippine citizenship, The procedure is not a tedious process. All that is required is to execute an affidavit and file the same in the nearest registry (In Re: Application for Admission to the Philippine Bar of Vicente Ching, B.M. 914, October 1, 1999).

On September 3, 2013, the Supreme Court resolved to LIFT the five-strike rule on bar repeaters, provided that the candidates have enrolled in and passed in regular fourth-year review classes and attended a pre-bar review course every time they take the Bar Examinations after failing for ~he third time, under a curriculum prepared I by the Legal Education Board (LEB), and in law schools accredited by it for that purpose, This took effect during the 2014 Bar Examinations.

He may be admitted to the bar only upon submission to the Supreme Court certifications showing:

A: YES. Meling's .dellberate silence and non· revelation of his pending criminal cases constitute concealment. The disclosure requirement is imposed to determine whether there is satisfactory evidence of good moral character of the applicant By concealing the existence of such cases, the applicant flunks the test of fitness if the cases are ultimately proven unwarranted or insufficient to impugn or affect the good moral character of the applicant. Further, it was highly improper for Meling, as member of the Shari'a Bar, to use the title "Attorney". Only members of the Philippine Bar, who have obtained the necessary degree in the study of law and successfully passed the bar exams, been admitted to the IBP and remain members in good standing are authorized to practice law and thus use the title (In Re: Disqualification of Bar Examinee

a.

Completion of all courses leading to the degree of Bachelor of Laws or its equivalent degree; b. Recognition or accreditation of the law school by the proper authority; c. Completion of all fourth-year subjects in the Bachelor of Laws academic program in a law school duly recognized by the Philippine Government; and d. Present proof of completing a separate bachelor's degree. A Filipino citizen who completed and obtained his or her degree in Bachelor of Laws or its equivalent in a foreign law school must also present proof of completion of a separate bachelor's degree (Bar Matter No. 1153, Re: letter of Atty. Estelito P. Mendoza Proposing Reforms in the Bar Examinations through Amendments to Rule 138 of the Rulesiof Court, March 9, 2010).

Haren S. Meling, B.M. No.11.54,June 8, 2004).

Q: Argosino passed the bar examinations held in 1993. The Court, however, deferred his oath-taking due to his previous conviction for Reckless Imprudence Resulting in Homicide. The criminal case, which resulted in Argosino's conviction, arose from the death of a neophyte during fraternity initiation rites. Various certifications showed that he is a devout Catholic with a genuine concern for civic

was born on April 1964 to i a Flllptno mother and Chinese father, Because of questions concerning his citizenship, he was only conditionally allowed to take the bar examinations. Upon passing the bar, he was required to present further proof of citizenship and was not allowed to take the Oath. Can he elect Q: Ching

\LY

UNIVERSITY OF SANTO GOLDEN NOTES

2019

•

Q: Atty, Melendrez filed a petition to disqualify Meling from taking the bar exams and to impose discipltnary penalty as a member of the Shari'a Bar. He alleged that in his application to take the bar, Meling failed to disclosethat he has 3 pending criminal cases. Also, Meling has been using the title "Attorney" in his communications as secretary to the Mayor. Should Meling be disqualified from being admitted to the Bar?

Requirements for admission of a Filipino citizen who graduated from a foreign law school

(.-.,

•

A: NO. Ching is not qualified to be a lawyer for

TOMAS

6

•

PRACTICE OF LAW duties and public service. Also, it has been proven that Mr. Argosino has exerted all efforts to atone for the death of Raul. Should Argosino be allowed to take his lawyer's oath?

residence in the Philippinesis not harsh nor unreasonable but is based on wise and sound principles of public policy, which takes into account the dose connection of the practice of law with the administration of justice and the other branches of the government (Agpalo,

A: YES. The practice of law is a privilege granted only to those who possess the strict intellectual and moral qualifications required of lawyers who are instruments in the effective and efficient administration of justice. The Supreme Court recognizes that Mr. Argosino ls not inherently of bad moral fiber given the various certifications that he is a devout Catholic with a genuine concern for civic duties and public service and that it has been proved that he has exerted all efforts to atone for the death of Raul and the court gave him the benefit of the doubt, taking judicial notice of the general tendency of youth to be rash, temerarious and uncalculating (Re: Petition of

Legal and Judicial Ethics, 2009). Reacquisition of the privilege to practice law in the Philippines under R.A. No. 9225 or the Citizenship Retention and Reacquisition Act of 2003 How is Citizenship retained under this Act? Any provision of law to the contrary notwithstanding, natural-born citizens by reason of their naturalization as citizens of a foreign country are hereby deemed to have reacquired Philippine citizenship upon taking the following oath ofallegiance to the Republic:

Al Argosino to Take the Lawyer's Oath, B.M. No. 712, March 19, 1997).

~

·. .. CONTINUING REQUIREMENTS FOR ·. :' . ·. . MEMBERSHIP IN rue BAR · · · . · 1. Good moral character Good

moral

character

is

a continuing

requirement The nature of the office of an attorney requires that a lawyer shall be a person of good moral character. Since this qualification is a condition precedent to a license to enter upon the practice of law, the maintenance thereof is equally essential during the continuance of the practice and the exercise of the privilege

•

"I

solemny swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and ! hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion" (S~c. 3, RA 9225).

• Derivative Citizenshi~ •

(Grande v. Atty. De Silva, A.C. No. 4838, July 29, 2003).

The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship are deemed citizens of the Philippines (Sec. 4, RA 9225).

The requirement of good moral character has four general purposes, namely:

·

1. To protect the public;

Appearance of non-lawyers

2. 3. 4.

GR: Only those who are licensed to practice law can appear and handle cases in court

To protect the public image of lawyers; To protect prospective clients; and To protect errant lawyers from themselves.

·

APPEARANCE OF NON-LAWYERS

XPNs: 1. Law student practice; 2. Non-lawyers in court can appear for a party in MTC; and

Each purpose is as important as the other

(Garrido i,. A ttys. Garrido and Valencia, A.C. No. 6593, February 4, 201 OJ.

NOTE: Section 34, Rule 138 of the Revised Rules of Court expressly allows pro se practice or the right of a non-member of

2. Citizenship - The practice of law is a privilege denied to foreigners. The requirement of Filipino citizenship and of

7

UN [VERSJTY OF SANTO TOMAS~ FA CUL TY OF C[VIL LAW ••

'

LEGAL ETHICS

3.

.

the barto engage in limited practice oflaw

Bar Matter No. 730, the Court En Banc clarified:

(Antiquiera, 1992).

"The rule, however, is different if the law student appears before an inferior court, where the issues and procedure are relatively simple. In • inferior courts, a law student may appear in his personal capacity without the supervision of a lawyer." As provided for in Section 34, Rule

Non-lawyers can represent parties in administrative tribunals such as NLRC, DARAS, and Cadastral Courts. · ·

LAW STUDENTPRACTICE .: · .

•

138, "a law student may appear before an inferior court as a;r1 agent or friend of a party without the supervision of a member of the bar."

Law Student Practice Rule A law student who has successfully completed his third year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's clinical legal education program approved by the Supreme Court, 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.1, Rule 138-AJ.

Petitioner expressly anchored his appearance on Section 34 of Rule 138. The court must have been confused when petitioner referred to himself as a law student in his entry of appearance. Rule 138-A should not have been used by the courts a quo in denying permission to act as private prosecutor against petitioner for the simple reason that Rule 138-A is not the basis for petitioner's appearance (Cruz v. Mina,

et al, C.R. No.154207, April 27, 2007). The appearance of the law student authorized by this rule, shall be under the direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by the law school. Any and all 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. 2, Rule 138-AJ.

Q: Ferdinand Cruz sought permission to enter his appearance for and on his behalf before the RTC as the plaintiff ln a Civil Case for Abatement of Nuisance. Cruz, a fourth· year law student, anchors his claim on Section 34 of Rule 138 of the Rules of Court that a non-lawyer may appear before any court and conduct his litigation personally. Judge Mijares denied the motion with finality. In the same Order, the trial court held that for the failure of Cruz to submit the promised document and jurisprudence and for his failure to satisfy the requirements or conditions under Rule 138-A of the Rules of Court, his appearance was denied. Did the court act with grave abuse of discretion amounting to lack or excess of jurisdiction when it denied the appearance of Cruz as party litigant?

NOTE: The law student shall comply with the standards of professional conduct governing members of the Bar. Eailure of an attorney to provide adequate supervision of student practice may be a ground for disciplinary action (Circular No.19, dated December 19, 1986). Q: Alex filed before the MeTC a formal Entry

of Appearance as private prosecutor in a criminal case for Grave Threats where his father was the complainant. Describing himself as a third-year law student, he justified his appearance as private prosecutor on the basis of Section 34 of Rule 138 of the Rules of Court. However, the MeTC denied his request on the ground that Circular No. 19 governing limited law student practice in conjunction with Rule 138-A should take precedence over the ruling of the Court that a non-lawyer may appear before the inferior courts as an agent or friend of a party litigant. Was the denial of the court proper? A: NO,

f:-11)·•

A: YES. The law recognizes the right of an individual to represent himself in any case to which he is a party. The Rules state that a party may conduct his litigation personally or with the aid of an attorney, and that his appearance must either be personal or by a duly authorized member of the Bar. The individual litigant may personally do everything in the course of proceedings from commencement to the termination of the litigation. Cruz, as plaintiff, at his own instance, can personally conduct the litigation of his case, He would then be acting not as a counsel or lawyer, but as a party exercising his right to represent himself.

In a Resolution dated June 10, 1997 in UNIVERSITY OF SANTO GOLDEN NOTES

\L.!) 2019

TOMAS

8

•

PRACTICE OF LAW Party's Right to Self-Representation

The trial court must have been misled by the fact that Cruz is a law student and must, therefore, be subject to the conditions of the Law Student Practice Rule. 1. t erred in applying Rule 138-A, when the basis of Cruz's claim is Section 34 of Rule 138. The former rule provides for conditions when a law student may appear in courts, while the latter rule allows the appearance of a non- lawyer as a party representing himself (Cruz v. Mijares, et al; G.R. No.154464, September 11, 2008). ·

·

. NON-LAWYERS IN COURT

A party's representation on his own behalf is not considered. to be a practice of law as "one does not practice law by acting for himself, any more than he practices medicine by rendering first aid to himself'(Maderada v. Mediodea, A.M. No. MTJ-02-1459, October 14, 2003). Therefore, a person can conduct the litigation of the cases personally. He is not engaged in the practice of law if he represents himself in cases in which he is a party. By conducting the litigation of his own cases, he acts not as a counsel or lawyer but as a party exercising his right to represent himself. Certainly, he does not become a counsel or lawyer by exercising such right (Santos v. Judge Lacurom, A.M. No. RTJ-04-1823, August 28, 2006).

.

Non-lawyers in court The following are the instances where non .. lawyers may appear in court: '

1.

2.

In Cases before the MTC: A party to the

litigation, may conduct his own case or litigation in person, with the aid of an agent or friend appointed by him for that purpose (Sec. 34, Rule 138, RRCJ;

Party-Litigant representing

Before any other court, a party may conduct his litigation personally but if he gets someone to aid him, that someone must be authorized member of the Bar (Sec. 34, Rule 138, RRC); )

In criminal cases, in. grave and less grave offenses, an accused i who is a layman must always appear by counsel; he cannot conduct his own defense without violating his right to due process of law. In light offenses, a party· litigant can represent himself/herself.

ln civil cases, an individual litigant has the right to conduct his litigation., personally.

NOTE: A non-lawyer conducting his own litigation is bound by the same rules in conducting the trial case. He cannot after judgment, claim that he was not properly represented. • 3.

4.

NOTE: Where" an accused was not duly represented by a member of the Bar during trial, the judgment should be set aside, and the case remanded to the trial court for a new trial (People v. Santocildes, Jr., G.R. No. 109149, December 21, 1999).

Criminal case before the MTCin a locality where a duly licensed member of the Bar is not available, the judge may appoint a nonlawyer who is a: a. b.

•

himself/herself

•

With regard to a Juridical person, It must always appear in court through a duly licensed member of the bar, except before MTC where it may be represented by its agent or officer who need not be a lawyer.

Resident of the province; and Of good repute for probity and ability to aid the accused in his defense (Sec. 7,Rule 116, RRC}; and

Limitations lawyers

Any official or other personappoir.ted or designated to appear for the Government of the Philippines in accordance with law (Sec. 33, Rule 138, RRC).

1. 2.

NOTE: Such person shall have all the rights of a duly authorized member of the Bar to appear in any case in which said government has a direct or indirect interest (Sec. 33, Rule 138, RRC).

3.

9

on the appearance

of non-

He should confine his work to non· adversary contentions; He should not undertake purely legal work, such as the examination or crossexamination of witnesses, or the presentation of evidence; and His services should not be habitually rendered. He should not charge or collect attorney's fees (PAFLU v, Binalbagan lsabe/a Suqar co; G.R. No. L-23959, U NlVERSITY OF SA. NTO TOMAS¢ FACULTY OF ClVJL LAW

'9

•

LEGAL ETHICS '

November 291 1971). ·

1.

adjudicated the case in favor of Reluyaet al. Can the engineers represent their co- • defendant the labor cases? .

in

NON-L/\WYERS IN ADMINISTRATIV~ . · · TRIBUNAL · · ..

A: NO, the appearance of the engineers on behalf of Kanlaon Construction required written proof of authorization. It was incumbent upon the arbiters to ascertain his authority especially since both engineers were named co-respondents in the cases before the arbiters. Absent this authority, whatever statements and declarations the engineers made before the arbiters could not bind Kaniaon.

Under the Labor Code, non-lawyers may appear before the NLRC or any Labor Arbiter, if: a. They represent themselves; or b, They represent their organization or members thereof (Art 222, PD 442, as amended) {2002 Bar); or c. If they are duly accredited members of any legal aid office duly recognized by the Department of Justice, or the Integrated Bar of the Philippines in cases referred to by the latter.

Nevertheless, even assuming that if the engineers were authorized to appear as representatives of Kaniaon, they could bind the latter only in procedural matters before the arbiters and the Commission. Kanlaon's liability arose from engineer's alleged promise to pay. A promise to pay amounts to an offer to compromise and requires a special power of attorney or the express consent of Kanlaon, The authority to compromise cannot be lightly presumed and should be duly established by evidence (Kanlaon Construction v. NLRC, G.R. No. 126625, September .18, 1997).

NOTE: He is not, however, entitledto attorney's fees under Article 222 of the Labor Code for not being a lawyer (Five t. Taxi v. NLRC, C.R. No. 111474, August22, 1994). 2.

Under the Cadostral Act, a non-lawyer can represent a claimant before the Cadastral Court (Sec. 9, Act No. 2259).

Q: Eric, a labor federation president, represented Luisa, a dismissed WXT employee, before the NLRC. Atty. John represented Luisa's two co-complainants, In due course, the NLRC reinstated the

.

PROCijEOINGS WHERE LAWYERS ARE· : • PROHIBIT.ED FROM APPEARING .

1.

Proceedings before the Small Claims Court -

No attorney shall appear ln behalf of or

three complainants with backwages and

represent a party at the hearing, unless the attorney is the plaintiff or defendant (Sec. 17, Rule of Procedure for Small Claims Cases).

awarded 25% of the backwages as attorney's fees, 1S% for Atty. John and 10% for Eric, a non-lawyer. When WXT appealed to the Court of Appeals, Atty. John questioned Eric's continued appearance before that court on Luisa's behalf, he not being a lawyer. Is Eric's appearance before the Court of Appeals valid? (2011 Bar)

.

!"

NOTE:If the court determines that a party cannot properly 'present his/her claim or defense and needs assistance, the court may, in its discretion, allow another individual who is not an attorney to assist that party upon the latter's consent(Sec.

A: NO. The practice of law is only reserved for

those qualified for the same. Eric's appearance in court on behalf of another is not sanctioned by the rules. A non-lawyer may only be allowed to appear in court if he is representing himself not that of another (Sec, 34, Rule 138, RRC).

17, Rule of Procedure for Small Claims Cases). 2.

Proceedings

before

the

KatarungangPambarangayDuring the pre-trial conference under the Rules of Court, lawyers are prohibited from appearing for the parties. Parties must appear in person only except minors or incompetents who may be assisted by their next of kin who are not lawyers (P.D.

Q: Kanlaon Construction and Reluya, et al. cases were assigned before two labor arbiters. Without written authority to represent Kanlaon Construction, the engineers who were co-defendants of Kanalaon, admitted the complaints against them. Consequently, the labor arbiters UNIVERSITY

•

•

No. 1508, Formerly Sec. 9; Local Government Code of 1991, R.A. 7160, Sec.

OF SANTO TOMAS

201.9 GOLDEN NOTES

10 •

PRACTICE OF LAW 415). ·.

.SANCTIONS FOR PRACTICE OR APPEARANCE WITHOUT AUTHORITY

NOTE: In any case, an unauthorized appearance bf an attorney may be ratified by the client either expressly or impliedly. Ratification retroacts to the date of the lawyer's first appearance and validates the action taken by him (Sps. Agbu/os v. Gutierrez,

. '

Remedies against practice of law without authority[ICE-DAJ

G.R.

1. 2. 3.

Petition for Injunction; Contempt of court; Criminal complaint for Estafaagainst a person who falsely represented himself to be an attorney to the damage of a party; 4. Disqualification and complaints for disbarment; or 5. Administrative complaint against the erring lawyer or government official.

·

No. 176530,June 16, 2009). REMEDIES AGAINST NON-LAWYERS

Remedies against unauthorized practice of law by non-lawyers [ICE) 1.

2. 3.

Petition for Injunction, Contempt of court; or Criminal complaint for Estafa against a person who falsely represented himself to be an attorney to the damage of a party.

•

Q: In one civil case, AMC filed a third-party

Sanctions for non-lawyers

complaint against MBC. The trial court set the case for pre-trial but the same was cancelled. During the subsequent pre-trial, the counsels for the parties were asked to produce their respective authorizations to appear at said hearing. Atty. X, counsel for MBC,manifested that her authority to appear for MBC was submitted at the first pre-trial hearing way back in 2004. The counsel was given the chance to go over the records to look for the Secretary's Certificate allegedly submitted but she

They shall be punished with contempt of court, severe censure and three {3) months imprisonment because of the highly fraudulent and improper conduct tending directly 'to impede, obstruct, degrade, and make a mockery of the administration of justice

(Manangan v. CF/, C.R. 1990; Lapena, 2009).

No. 82760, August 30,

A person who has been refused admission to the bar by order of the Supreme Court but nonetheless attempts to practice law is guilty of indirect contempt (2014 Bar)

falled to show any written authority. As a result, the trial court declared MBC In default. Was there any grave abuse 'or discretion on the part of the trial court?

NOTE: A disbarred lawyer still appearing in court is guilty of indirectcontempt(lemoine v.

A:NO. MBC failed to substantiate

its sole excuse for its counsel's apparent lack of authority to be its representative during the pre-trial conference. To be sure, if indeed there was such an authority previously executed by MBC in favor of its counsel as early as the pretrial conferences that MBC alleges to have taken place. This fact would have been easily proven by MBC. It, however, failed to produce this document before the court a quo, the appellate court and this Court As fairly observed by AMC, the SPA later submitted by MBC's counsel is dated December 5, 2006 or "after" the pre-trial conference on November 20, 2006. Prescinding from the foregoing disquisitions, we agree with the court a quo that respondent's counsel is unauthorized

Atty.

Balon, Ir. A.C. No. 5829, October 28, 2003). '

. CONTEMPT OF COURT

Power of Contemptvs. Power to Disbar The power to punish for contempt and the power to disbar are separate and distinct, and that the exercise of one does not exclude the exercise of the other(People v. Godoy, G.R, Nos. 115908-09,

March 29, 1995).

Kinds of Contempt 1. Direct- Consists of misbehavior in the presence of or so near a court or judge as to interrupt or obstruct the proceedings before the court :or the administration of justice; it is punished summarily(Sec. l,

(Absolute Management Corporation v, Metropolitan Bank and Trust Company, G.R. 190277, July 23, 20.14).

Rule 71, RRC).

11

·'

U N[VERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW

•

•

LEGAL ETHICS judgment or decree rendered in his behalf,

NOTE; An imputation in a pleadfag of.

gross Ignorance against a court or Its

the i:ontempt Judgment will, lf made before final decree, be treated as In the nature of

judge, especially In the absence of any evidence, is a serious allegation, and constitutes direct contempt of court. Derogatory, offensive or malicious statements contained in pleadings or written submissions presented to the same court or judge in which the proceedings are pending are treated as direct contempt because they are equivalent to a misbehavior committed in the presence of or so near a court or judge as to interrupt the administration of justice, This Is true, even if the derogatory, offensive or malicious statements are not read in open court (Habawel and Medina v. Court of Tax Appeals, G.R. No, 174459, September 7, ;011;.

an interlocutory order. Two-fold aspect of ContemptPower (1998 Bar) The proper punishment of the guilty party for his disrespect to the court or its order; and 2. To compel his performance of some act or duty required of him by the court which he refuses to perform(People v. Godoy, G.R. Nos.115908-09., March 29, 1995). 1.

NOTE: The question of whether the contempt committed is civil or criminal, does not affect the jurisdiction or the power of a court to punish the same (Ha/iii v. CIR, C.R. No, L-24864, April 30, 1985).

2, Indirect- One committed away from the court involving disobedience of or resistance to a lawful writ, process, order, judgment or command of the court, or tending to belittle, degrade, obstruct, interrupt or embarrass the court It is not summary in nature(Sec. 3, Rule 71, RRCJ.

A practicing lawyer and officer of the court facing contempt proceedings cannot just be allowed to voluntarily retire from the practice of Jaw which would negate the inherent power of the court to punish him for contempt (Montecillo v, Gica, G.R. No. L-36800 October 21, 1974}. r;

3. Civil- It is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein. It is remedial in nature(People v, Godoy, G.R, Nos, 115908-09, March 29, 1995).

',j

Q: Dela Cruz misrepresented himself as a lawyer in the application for habeas corpus of Gamido. What punishment should the court impose on Dela Cruz? A: The Court declared him guilty of indirect contempt for maliciously and falsely portraying himself as a member of the bar, appearing in court and filing pleadings (In the Matter of the Application for Habeas Corpus of MaximinoGamldo; Gamido v. New Bi/ibid Prison, G.R. No. 146783,july 29, 2002).

4. Criminal - Conduct directed against the authority and dignity of a court or of a judge, as in unlawfully assailing or discrediting the authority or dignity of a court or of a judge, or in doing a duly forbidden act. Intent is necessary(People v. Godoy, G.R. Nos. 115908-09, March 29, 1995).

At the start of the preliminary conference before the Supreme Court, Atty. Jesus Falcis failed to rise and manifest his presence when appearances for petitioners were called. He also failed to rise during the initial round of questioning by the Justices. When responding to them, he failed to address them in keeping with customary courtesies. Throughout the proceedings, he acted as though he was unprepared and without knowledge of the decorum typical to appearing in court. Is Atty. Falcls guilty of direct contempt of court? Q:

NOTE: Where the punishment imposed, whether against a party to a suit or a stranger, is wholly or primarily to protect or vindicate the dignity and power, either by fine payable to the government or by imprisonment, or both, it is deemed a judgment in criminal case. Where the punishment is by fine directed to be paid to a party in the nature of damages for the wrong inflicted, or by imprisonment as coercive measure to enforce the performance of some act for the benefit of the party or in aid of the final (.,......\

\

~

lft ~

UNIVERSITY OF SANTO GOLDEN NOTES

,) 2019

•

TOMAS

12 •

PRACTICE OF LAW A: YES. Atty. Falcis acted in a contumacious manner during the preliminary conference. A person guilty of misbehaving in court and showing disrespect towards courts may be punished for direct contempt As an officer of the court, he is duty bound to maintain towards this Court a respectful attitude essential to the proper administration of justice. He Is charged with knowledge of the proper manner by which lawyers are to conduct themselves during judicial proceedings. His Lawyer's, Oath and the Code of Professional Responsibility exhort him to maintain the requisite decency and to afford dignity to this Court(Falcis lil v. Civil Registrar General, G.R. No. 217910,July 3, 2018). Q: A judge cited complainant, a driver at the

Engineering Department of the Makati City Hall, in contempt for using the former's parking space, and refused to accept the driver's apology. Is the judge administratively liable for grave abuse of authority in citing the driver for contempt of court?

. Aquino and his law office address. Is · Balajadia liable for indirect contempt? 1.'

A: NO. Balajadia never intended to represent · himself as a lawyer to the public. It was a clear

inadvertence on the part of the secretary of Atty. Aquino. The allegation that he is a

practicing lawyer cannot, by itself, establish intent as to make him liable for indirect contempt (Tan v. Balajadia, G.R. No. 169517, March 14, 2006). Q: C and D are law partners using the firm name C and D - Attorneys-at-Law. In an

c.

administrative case filed against the Supreme Court found that C was not • entitled to admission to the practice of law ~ in the Philippines and ordered his name stricken-off from the Roll of Attorneys. As a result, C and D changed their firm name to Law Office of D - Attorney-at-Law, C • Counsellor, with C handling purely counselling and office work while D is the law practitioner. Are C and D liable for contempt of court? Explain your answer. (201.4 Bar)

A: YES. The Court does not see how the improper parking by the driver could disrupt the speedy administration of justice. It would cause the Judge inconvenience or annoyance, but this does not fall under any of the acts for which a person could be cited for contempt. Neither does it appear from the records, nor from the evidence presented, that the complainant intended any disrespect toward respondent Judge (Nunez v. Ibay, A.M. No. RT]·

•

A: YES, C and D are liable for indirect contempt.

Indirect contempt is committed away from the court involving disobedience of or resistance to a lawful order or judgment of the court · Supreme Court found C not entitled to admission to the practice of law. Although they changed the firm name, C continued to practice law and D permitted it Practice of law includes counselling or giving of advice or rendering any kind of service that involves legal knowledge.

06·1984,Jtme 30, 2009). Q: Balajadia filed a criminal case against Tan. In paragraph 5 of the complaint· affidavit, Balajadia appeared to have asserted that he is a "practicing lawyer", However, certifications issued by the Office of the Bar Confidant and the IBP showed that he has never been admitted to the Philippine Bar. Hence, Tan filed a case against him claiming that he is liable for indirect contempt for misrepresenting himself as a lawyer. In defense, Balajadia claimed that the allegation that he is a practicing lawyer was an honest mistake. He stated that the secretary of Atty. Aquino prepared the subject cemplaint-affldavlt copying in verbatim paragraph 5 of Atty. Aquino's complaint-affidavit. It was inadvertently alleged that he was a "practicing lawyer in Baguio City" which statement referred to the person of Atty.

Q: The court ordered Atty. Z to testify as a

witness for his client in the case he is handling but he refused on the ground that it would violate the rule on privileged communication. Atty( Z is guilty of? (2014 Bar)

\

A: Distinction should b~ made. If Atty. Z refuses to testify on formal matters, like mailing, authentication or custody of documents, he can be cited for direct contempt (under Section 1, Rule 71 of the Rules of Court) for refusal to be a witness. However, if the matter to be testified is substantial, he cannot be guilty of · contempt or any violation of his duty to the court, based on Rule 12.08, Code of Professional Responsibility. :

13

PUBLIC OfFICJALS AND THE

UNIVERSITY OP SANTO, TOMAS~ FACULTY OF CIVIL LAW •••

•

• LEGA~ ETHICS ·

. .

PRACTICEOFLAW.

. .

Q: After the Supreme Court suspended Atty. Baliga from the practice of law, the Commission on Human Rights suspended him from his position as Director/Attorney VI of the CHR Region II. According to the CHR, Atty. Baliga's suspension from the practice of law "prevented him from assuming his post as Regional Director for want of eligibility in the meantime that his authority to practice law is suspended."

Public Officials Includes elective or appointive officials and employees, permanent or temporary, whether In the career or non-career service, including military and police personnel, whether or not · they receive compensation, regardless of amount (Sec. 3 (b), R.A. No. 6713, Code of Conduct and Ethical Standards for Public Officials and Employees).

Atty. Baliga argued that he cannot be suspended for acts not connected with his functions as CHR Regional Director. According to Atty. Baliga, his suspension from the practice of Jaw did not include his suspension from , public office. Is Atty. Baluga correct? :

Prohibited acts or omissions of public officers 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 termination (Sec. 3{d), RA 3019); ,.. 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 (Sec. 7[b), RA 6713); 3. A lawyer shall not, after leaving a government service, accept engagement or employment in connection with any matter in which he had intervened. while in said service (Rule 6.03, CPR); and 4. A lawyer should not accept employment as an advocate in any matter upon the merits which he has previously acted in a judicial capacity (Canon 36, CPE). 1.

i'

A: NO. Work in govJrnment that requires the

use of legal knowle~ge is considered practice of law. The Commission on Human Rights is an independent office created under the Constitution with power to investigate "all forms of human rights violations involving civil and political rights." It is divided into regional offices with each office having primary responsibility to investigate human rights violations in its territorial jurisdiction.Each regional office is headed by the Regional Director who is given the position of Attorney Vl. The exercise of the powers and functions of a Commission on Human Rights Regional Director constitutes practice of law. Thus, the Regional Director must be an attorney • a member of the bar in good standing and authorized to practice law. When the Regional Director loses this authority, such as when he or she . is disbarred or suspended from the practice of law, the Regional Director loses a necessary qualification to the position he or she is holding. The disbarred or suspended lawyer must desist from holding the position of Regional Director(Lingan v. Atty. Calubaquib,

NOTE: These prohibitions shall continue to apply for a period of one (1) year after resignation, or separation from public office. The one-year prohibition shall also apply. in connection with any matter before the office he used to be with. Misconduct in the discharge duties as government official

of official

A.C. No. 5377,Jwie 30, 2014).

. ·~ROHIBITION OR DISQUALIFICATION OF . ·. FOJ.{MER GOVERNMENT ATTORNEYS

GR: lt is NOT disciplinable. XPN: He may be disciplined if1miscon'duct is of such a character as to affect his qualification as a lawyer to show moral delinquency (GonzalesAustria v. Abaya, A.M. No. R-705-R1J, August 23, 1989).

-,J,lit:t+

(.\

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UNI VE RS ITV OF SANTO ,TOM AS GOLDEN NOTES

2019

•

Prohibition or disqualification of former government attorneys A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had

14

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PRACTICE OF LAW 7.

intervened while in said service (Canon 6 Rule 6.03, CPR). 1

Ombudsman and his deputies (Sec. 8 [second par], Art. IX, 1987 Constitution);

8. All governors, city and municipal Mayors • RF:ASON: The evil sought to be avoided by this provision is the possibility of a lawyer who just retired, resigned or separated from the government of using his influence for his own private benefit [Antiquiera, 1992).

9.

NOTE: Violation of restriction is tantamount to

1.

representing

conflicting interests

Restrictions on the Practice of Law on Certainindividuals(Relative Prohibition)

(Pineda,

2009). PUBLIC OHICJALS WHO CANNOT PRAGTICE· . ·. , LAW OR WITfl RESTRICTIONS. : ..

to a government office disqualifies him from engaging in the private practice of law(Ziga v. Arejola, A.M. No. MTJ-99·1203, June 1 O, 2003). REASON:A public office is a public trust, and a public officer or employee is obliged not only to perform his duties with the highest degree of responsibility, integrity, loyalty and efficiency but also with exclusive fidelity(Ziga

2.

v. Arejola, A.M. No. MTJ-99·1203,June 10, 2003).

This disqualification is intended to:

Public officials not allowed to engage in law practice (Absolute Prohibition) [JOPPC20MSJ:

4. S. 6.

Under the Local Government Code (Sec. 91, RA 7160), Sanggunian members may practice their professions provided that if they are members of the Bar, they shall NOT: a. Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverseparty: b. Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office; c. Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official;or d. Use property and personnel of the government except when the Sanggunian member concerned is defending the interest of the government

a. Preserve public trust in a public office; b. Avoid conflict of interests or a possibility thereof; and c. Assure the people of impartiality in the performance of public functions and thereby promote the public welfare.

2. 3.

No Senator or member of the House of Representatives may personally "appear" as counsel before any court of justice or before the Electoral Tribunals, or quasi· judicial and other administration bodies (Sec. 14, Art. vt, 1987 Constitution).

•

NOTE:What is prohibited is to "personally appear" in court and other bodies. The word "appearance" includes not only arguing a case before any such body but also filing a pleading on behalf of a client as "by simply filing a formal motion, plea, or answer."

GR: The appointment or election of an attorney

1.

(Sec. 90, R.A. No. 7160); and Those prohibited by Special laws.

Judges and other officials and employees of the Supreme Court (Sec. 35, Rule 148, RRCJ; Officialsand employees of the OSG (Ibid.); Government Prosecutors (People v. Villanueva, G.R. No. L·19450, May 27, 1965); President, Vice-President, Members of the Cabinet, their deputies and assistants (Sec. 13, Art Vll, 1987 Constitution); Members of the Constitutional Commission (Sec. 2, Art IX·A, 1987 Constitution); Civil Service Officers or employees whose duties and responsibilities require that their entire time be at the disposal of the government (Ramos v. Rada, A.M. No. 202,

3.

Under Sec. l, R.A. 910, as amended, a . retired justice or judge receiving pension from the government, cannot act as counsel: a. ln any civil case in which the Government, or any of its subdivision or agencies is the adverse party; or

July 22, 1975);

15

UNIVERSITY OF SANTO TOMAS~ FACULTY OF ClVlL LAW ...

•

•

LEGAL ETHICS b. In a criminal case wherein an officer or employee of the Government is accused of an offense in relation to his office; nor c. Collect any fees for his appearance in any administrative proceedings to maintain an interest adverse to the government, provincial or municipal, or to any of its legally constituted officers (Sec.1, R.A. 910). 4.

engage .in unlawful, dishonest, immoral or deceitful conduct." His admission that he received from Taggat fees for legal services while serving as a government prosecutor is an unlawful conduct, which constitutes a violation of Rule 1.01 (Lim· Santiago v. Sagucio, A.C. No. 6705, March 31, 2006). NOTE: Violations iof R.A. 6713 (the Code of Conduct and Ethical Standards for Public Officials and Employees) are not subject to disciplinary action under the Code of Professional Responsibility unless the violations also constitute infractions of specific provisions of the Code of Professional Responsibility,

Civil service officers and employees without permit from their respective department heads (Noriega v. Sison, A.M. No. 2266 October 27, 1983). 1

5. A former government attorney cannot, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in the said service (Rule 6.03, CPR).

Q: Atty. Eliseo represented Allan in a collection suit against the Philippine Charity Sweepstakes Office (PCSO).After his election as SangguniangBayan member, the court rendered a decision in PCSO's favor. Still, Atty. Eliseo appeared for Allan in the latter's appeal, prompting the PCSO to question his right to do so. In response, Atty. Eliseo claimed that the local government code authorizes him to practice law provided that ft does not conflict with his duties. Is Atty. Eliseo correct? (2011 Bar)

Q: Atty. Sagucio was the former Personnel Manager and Retained Counsel of Taggat Industries Inc. until his appointment as Assistant Provincial Prosecutor of Tuguegarao. Taggat Industries was sequestered by the PCGG and ceased its operations, As Assistant Provincial Prosecutor, he was assigned to conduct the preliminary 'investigation over a criminal case flied against Taggat Industries. He recommended the filing of 651 Informations for violation of the Labor Code. He was then charged for violating Rule 15.03 of the Code of Professional Responsibility and for defying the prohibition against private practice of law while working as government prosecutor. Is Atty, Sagucio guilty of engaging in private practice of law while working as an Assistant Provincial Prosecutor?

A: NO. He cannot appear against a government instrumentality in a civil case.Sec. 90 par. 3 (1) of the Local Government Code provides that sanggunian members who are also members of the Bar shall not appear as counsel before any Court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party. It is clear from the said provision that Atty. Eliseo's election to the sanggunian bars him from the appeal procedlngs as the PCSO is the adverse party.

A: YES, "Private practice of law" contemplates a succession of acts of the same nature habitually or customarily holding one's self to the public as a lawyer. Atty. Sagucio·admitted that he rendered his legal services to complainant while working as a government prosecutor. Even the receipts he signed stated that the payments by Taggat were for "Retainer's fee." Thus, Atty. Sagucio clearly violated the prohibition in RA 6713.

Q: Atty. Dude is the COMELEC Officer in a distant municipality. He is the only lawyer in that area. When election period is over, he has spare time/ Many people go to him for counseling, legal advice, preparation of documents of Sale,. Mortgage and the like. He does not charge a fee in money, but he receives gifts which are offered. Is there impropriety? (2012 Bar) A:YES, under Sec. 2, Art IX-A, 1987 Constitution, members of the Constitutional Commission are absolutely prohibited from engaging in the practice of law. Applying the

Atty. Sagucio's violation of RA 6713 also constitutes a violation of Rule 1.01 of Canon 1, which mandates that "[a) lawyer shall not

fjj' ~ !) "•1 ...

I

t

UNIVERSITY OF SANTO TOMA~ 2019 GOLDEN NOTES .

16

•

•

PRACTICE doctrine in Cayetano v. Monsod (1991),giving legal advice and preparing legal documents, even if free, constitutes private practice of law, which is prohibited of government employees.

one party whereby agencies are in conflict

two

government

It is incumbent upon the Solicitor General to present to the court that which would legally uphold the best interest of the government. The other government agency adversely affected, if it believes in the merits of its case, may appear on its own behalf through its legal officer or representative.

NOTE: While certain local elective officials (like governors, mayors, provincial board members and councilors) are expressly subjected to a total or partial proscription to practice their profession or engage in any occupation, no such interdiction is made on punong baranqay and the members of. the

Sangguniang Bxpressiouniusestexclusioatterius.

OF LAW

The OSG is not authorized to represent a public official at any stage of a criminal case

Barangay.

Since they are excluded from any prohibition, the presumption is that they areallowed to practice their profession. However, he should procure prior permission or authorization from the head of his Department, as required by the Civil Service Regulations (Catu v. Rellosa, A.C. No. 5738, February 19, 2008).

•

The accused public official should not expect the State, through the OSG, to defend him for a wrongful act which cannot be attributed to the State itself. In the same light, a public official who is sued in a criminal case is sued in his personal capacity inasmuch as his principal, the State, can never be the author of a wrongful act, much less commit a crime (Urbano v, Chavez, C.R. No. 87977,:'!farch 19, 1990).

Practice of law by the clerk of court

2. Legal Officer - i for LGUs, they are represented by a leg~{ officerwho provides legal assistance or support to the mayor or • · governor and represents the LGU in all civil actions and special proceedings wherein it or any of its officials are involved in an official capacity (Sec. 481, LGlJ.

GR: The practice of law by a clerk of court is not allowed,except isolated practice. XPNs:

L Written perrrusston which must be approved by the Supreme Court; and 2. Approved leave of absence with justifiable reasons.

NOTE:As a 'general rule, a municipality cannot engage the services of a private lawyer. Only the Provincial Prosecutor, the Provincial Attorney or the Municipal Attorney could validly represent a municipality in all cases/complaints and legal problems invoving it. The reason being that only accountable public officers may act for and in behalf of public entities and that public funds should not be expended to hire ·private lawyers (DILG Opinion No. 59, series of 2007).

iAWYERS AUTHORIZED 'fO REPRESENT: . . . THE GOVERNMENT · ·

. · . .

1. Office of the Solicitor General

- for the National Government, and . any person appointed to appear for the government of the Philippines in accordance with law (Sec. 33,

Rule 138, RRCJ. Duties of the Solicitor General The Solicitor General, in his discretion, may pursue any of the following actions:

3. Office of the

Government Corporate Counsel (OGCC) - Under the Administrative Code of 1987, it is the OGCC which shall act as the principal law office of all GOCCs. In Phividec Industrial Authority v. Capitol Steel Corporation, the Supreme Court listed three (3) indispensable conditions before a GOCC can hire a private lawyer: (1) private counsel can only be hired in exceptional cases; (2) the GOCC must first secure the written conformity and acquiescence of the Solicitor General or the Government Corporate Counsel, as the case may be; and (3) the written concurrence of the COA must also be secured.

1. 2.

Prosecute; Not to prosecute; 3. To abandon a prosecution already started; or 4. To take a position adverse to the People of the Philippines in a criminal case or to that of a government agency or official, when he believes that justice will be served by taking a different stand. Duty of the Solicitor General to represent

17

U NlVERSlTY OF SANTO TOMAS~ FACULTY,.OF CIVIL LAW

·y·

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LEGAL ETHICS plain inability to discharge the bounden duties of a member of thelegal profession. He failed to prove himself worthy of the privilege to practice law and to live up to the exacting standards demanded of the of the members of the bar(Brennisen v. Contawi, A.C. No. 7481, April 24, 2012).

THE LAWYER'S OATH (2018 Bar)

l, of do solemnly swear that I will maintain allegiance to the Republic of the Philippines.I will suppqrt the Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein;! will dona falsehood, nor consent to the doing of any in court;! will not wittingly or willingly promote or sue any groundless, false or unlawful suit, or give aid nor consent to the same;J 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 clientsiand I impose upon myself these voluntary obligations without any mental reservation or purpose of evasion. So help me God.

Q: Can a lawyer be held administratively liable for submitting pleadings, evidence, or exhibits before the courts which do not exist? A: YES. This conduct is deceitful which impairs the justice system in the country. A lawyer who

took oath before the Supreme Court, must not engage in unlawful, dishonest, immoral or deceitful conduct and must not delay court proceedings just to prolong the justice deserve by the oppressed. Further, he shall not do any falsehood, nor consent to the doing of any in Court, nor shall he mislead, or allow the Court to be misled by any artifice and he shall not knowingly assert as a fact that which has not been proved(Magsaysay Maritime Corporation

Importance of the lawyer'soath

PrincessCruise Lines, LTD. etc. v. Mazaredo, G.R. No. 201359, Sept. 23, 2015).

By taking the lawyer's oath, a lawyer becomes

the guardian of truth and the rule of law and an indispensable instrument in the . fair and impartial administration of justice. Good moral character includes, at least, common honesty. Deception and other fraudulent acts are not merely unacceptable practices that are disgraceful and dishonorable; they reveal a basic moral flaw (Olbes v. Deciembre, A.C. No.

. · DUTIES AND RESPON~IBILITIES . ·. . · OFALAWYER ..

Four-fold duty of a lawyer under the Code of Professional Responsibility (1966, 1979, 1985 Bar)

5365,April 27, 2005).

The lawyer's oath is not a mere ceremony or formality for practicing law to be forgotten afterwards nor is it mere words, drift and hollow, it is a sacred trust that every lawyer must uphold and keep inviolable at all times(Cheng v. Agravante, A.C. No. 6183, March

23,2004). Q: An administrative complaint was filed against Atty. Contawi for having violated his oath as a lawyer, causing him damage and prejudice. He had mortgaged and sold the property of his client without the latter's knowledge or consent, facilitated by the use of a falsified Special Power of Attorney. Did Atty. Contawl violate his lawyer's oath?

~

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UNIVERSITY OF SANTO TOMAS GOLDEN NOTES

2019

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2. To the Bar/Legal Profession- A lawyer observes candor, fairness, courtesy and truthfulness in his conduct towards other lawyers, avoid encroachment in the business of other lawyers and uphold the honor of the profession{Canon 7-9, CPR).

A: YES. Atty. Cont:awi disposed of complainant's property without the latter's knowledge or consent, and partook of the proceeds of the sale for his own benefit The established acts exhibited his unfitness and (--·)

1. To the Public/Society- He must not undertake any I action which violates his responsibility to the society as a whole, he must be an example in the community for his uprightness fS a member of the society. The lawyer must be ready to render legal aid, foster legal reforms, be a guardian of due process, and be aware of his special role in solving special problems and be always ready to lend assistance in the study and solution of social problems (Canon 1 ·6, CPR).

3. To the Courts - A lawyer must maintain towards the court a respectful attitude, defend against unjust criticisms, uphold

18

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DUTIES AND RESPONSIBILITIES the court's authority and dignity, obey court orders, processes, and assists in the administration of justice (Canon 10·13,

CPR). 8. 1, To the Clients- The lawyer owes entire devotion to the interest of his client, warm and zeal in the maintenance of the defense of his rights and exertion of utmost learning ability to the end that nothing be taken or withheld from his client except in accordance with law. He owes a duly of competent and zealous representation to the client, and should preserve his client's secrets, preserve his funds and property and avoid conflicts of interest (Canon 14· 22, CPR).

9.

OF A LAWYER

and to advance no fact prejudicial to the honor and reputation of a party or witness unless required by the }'..!slice of the cause with which he is charged; Never to Reject, for any consideration, the cause. of the defenseless or oppressed; and In the Defense of a person accused of a 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, liberty, but by due.process of law (Sec. 20, Rule 138, RRC). :t

•

Privileges of a lawyer}PSP-lS-12] To Practice law during good behavior before any judicial, quasi-judicial, or administrative agency; 2. First one to Sit in judgment on every case, to set the judicial machinery in motion; 3. Enjoys the Presumption of regularity in the discharge of his duty; 4. He is Immune, in the performance of his obligations to his client. from liability to third persons, insofar as he does not materially depart from his character as a quasi-judicial officer; 5. His Statements, if relevant, pertinent or material to the subject of judicial inquiry are absolutely privileged regardless of their defamatory tenor and of the presence of malice; 6. 1st grade civil service eligibility for any position in the classified service in the government the duties of which require knowledge of law; and 7. 2nd grade civil service eligibility for any other governmental position, which does not prescribe proficiency in law as a qualification. 1.

NOTE: The first and most important duty of a lawyer is his duty to the COURT. The lawyer is an officer of the court who sets the judicial machinery with the main mission of assisting the court in the administration of justice. His public duties take precedence over his private duties. Duties oflawyers (2006 Bar)

under the Rules of Court

The following are the duties of a lawyer under the Rules of Court. [ADA-RECORD] 1.

2.

3.

4. 5.

6.

7.

To maintain Allegiance to the Republic of the Philippines, to support the Constitution and obey the laws of the Philippines; Not to encourage either the commencement or the continuance of an action or proceeding, or De1ay any man's cause, from any corrupt motive or interest; To counsel or maintain such Actions or proceedings only as appear to him to be just, and such defenses only as he helieves to be honestly debatable under the law; To observe and maintain the Respect due to the courts of justice and judicial officers; 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; To maintain inviolate the Confidence and at every peril to himself, to preserve the secrets in connection with his client and to accept no compensation in connection with his client's business except from him or with his knowledge and approval; To abstain from all Offensive personality

THE CODE OF PROFESSIONAL RESPONSIBILITY

CHAPTERl LAWYER AND SOCIETY (Canons 1-6) 1. 2. 3.

19

Uphold the Constitution and obey the laws of the land and legal processes Make legal servicesavailable in an efficient and convenient manner Use of true, honest, fair, dignified and objective information in making known UNIVERSITY OF SANTO TOMAS¢ FACULTY OF CIVIL LAW ...

•

DUTIES AND RESPONSIBILrTIES OF A LAWYER problem exists, what are its Implications or potential consequences? (2013 Bar]

Two-fold duty under Canon 1 1.

A: YES. There is an ethical/professional responsibility problem that results from the actuation of Atty. Doblar in arguing the reverse positions.

2.

NOTE: The portion of Canon l, which calls for lawyers to "promote respect for Jaw and for legal processes", is a call to uphold the 'Rule of Law (Funa, 2009).

The signatures of Atty. Doblar on the pleadings for Eva and for Marla constitute a certificate by him that he has read the pleadings; that to the best of his knowledge, information, and belief, there is good ground to support them; and that the pleadings were not interposed for delay (par. 2, Sec. 3, Rule 7, RRC). Atty. Doblar could not claim he has complied with the foregoing requirement because he could not take a stand for Eva that is contrary to that taken for Marla. His theory for Eva clearly contradicts his theory for Marla. He has violated his professional responsibility mandated under the Rules of Court

: Concept of "Rule of Law" "The supremacy of the law" provides that decisions should be made by the application of known legal principles or laws without the intervention of discretion in their application (Black's Law Dictionary). NOTE: A lawyer's oath to uphold the cause of

justice is superior to his duty to his client; its primacy is indisputable (Cobb-Perez v. Lantin, G.R. No. L-22320, July 29, 1968).

In counseling 011 the contradictory positions, Atty. Doblar has likewise counselled or abetted activities aimed at defiance, of the law or at lessening confidence in the legal system (Rule 1.02, Canon 1, CPR) because conflicting opinions may result arising from an interpretation of the same law.

Q: Atty. Tansingco was a notary public who prepared and notarized an Occupancy Agreement at the request of Mr. Stier, the owner and long-time resident of a real property located in Cubao, Since Mr. Stier is a U.S. Citizen and thereby disqualified to own real property in .hts name, he agreed that the property be transferred in the name of Mr. Donton, a Filipino. Donton averred that Atty. Tansingco's act of preparing the Occupancy Agreement, despite knowledge that Stier is a foreign national, constitutes serious misconduct and is a deliberate violation of the Code. Is Atty. Tansingco guilty of serious misconduct?

Atty. Doblar could not seek refuge under the umbrella that what he has done was in protection of his clients. This is so because a lawyer's duty is not to his client but to the administration of justice. To that end, his client's success is wholly subordinate. His conduct ought to and must always be scrupulously observant of the law and ethics. Any means not honorable, fair, and honest, which is resorted to by the lawyer, even in the pursuit of his devotion to his client's cause, is condemnable and unethical (Pineda, Legal and judicial Ethics, 211 {1999}, citing Maglasangv. People, C.R. No. 90083, October 4, 1990). :

. DUTIES AND RESPONSIBILITIES OF·A . · LAWYER TO SOCIETY. ·

Obey the laws and the legal processes; and Inspire others to maintain respect and obedience thereto.

A: YES. Atty. Tansingco is liable for violation of Canon 1 and Rule 1.02 of the Code. A lawyer should not render any service or give advice to any client, which will involve defiance of the laws which he is bound to uphold and obey. Atty. Tansingco had sworn to uphold the Constitution. Thus, he violated his oath and the Code when he prepared and notarized the Occupancy Agreement to evade the law against foreign ownership of lands. Atty. Tansingco used his knowledge of the law to achieve an unlawful end. Such an act amounts to malpractice in his office, for which he may be suspended (Donton v. Ato/, Tansinqco, A.C. No. 6057,June 27, 2006).

·

RESPECT 1:oR LAW AND LEGAL PROCESSES

CANON1 A lawyer shalt uphold the Constitution, obey the laws of the land and promote respect for law and legal processes.

21

UNIVERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW ••.

. ··-·----·---------------------------------1

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LEGAL E'THICS Prosecutor Coronel entered his appearance on behalf of the State before a Family Court in a case for declaration of nullity of marriage, but he failed to appear In all the subsequent proceedings. When required by the Department of Justice to explain, he argued that the parties in the case were ably represented by their respective counsels and that his time would be better employed in more substantial , prosecutorial functions, such as investigations, inquests and appearances in court hearings. Is Atty. Coronet's explanation tenable? (2006 Bar) Q:

A: NO. Atty. Coronet's explanation is not tenable. The role of the State's lawyer in nullification of marriage cases is that of protector of the institution of marriage (Art 48, FCJ. "The task of protecting marriage as an inviolable social institution requires vigilant and zealous participation and not mere pro forma compliance" (Ma/campo-Sin v. Sin, G.R. No. 137590, March 26, 2001). This role could not be left to the private counsels who have been engaged to protect the private interest of the parties.

OF SANTO

GOLDEN NOTES

•

Definitions: 1.

Deceitful Conduct

Francisco, A.C. No.10548, December 10, 2014).

2. Unlawful Conduct Any act or omission that is contrary to, or prohibited or unauthorized by, or in defiance of, disobedient to, or disregards the Jaw. "Unlawful"conduct does not necessarily imply the element of criminality although the concept is broad enough to include such element Gimenez v. Francisco, A.C. No. 10548, December 10, 2014). NOTE:The presence of evil intent on the part of the lawyer is not essential in order to bring his act or omission within the terms of this Rule. 3.

Immoral Conduct

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

A: YES. A lawyer's act of issuing a worthless check. punishable under Batas Pambansa Big. 22, constitutes serious misconduct. for which no conviction of the criminal charge is even necessary. Batas Pambansa Big.· 22 was "designed to prohibit and altogether eliminate the deleterious and pernicious practice of issuing checks with insufficient funds, or with no credit, because the practice is deemed a public nuisance, a crime against public order to be abated," Being a lawyer, Atty. Rivera was well aware of, or was nonetheless presumed to know, the objectives and coverage of Batas

2019

RULE 1.01, CANON 1 A lawyer shall not engage in unlawful, dishonest, immoral and deceitful conduct

An act that has the proclivity for fraudulent and deceptive misrepresentation, artifice or device that is used upon another who is ignorant of the fact, to the prejudice and damage of the party imposed upon Gimenez v,

Q: Atty·. Rivera borrowed from Lim the amount of P75,000.00. Lim issued a check in his favor, especially since the Atty. Rivera issued a guarantee check to ensure payment of the loan. Subsequently, when Lim deposited guarantee check, it was dishonored for the reason "Account Closed." Thereafter, Atty. Rivera would not take or return Lim's calls nor respond to the latter's text messages. He completely avoided Lim. Consequently, Llm's lawyer wrote a demand letter for the payment of Atty. Rivera's indebtedness but to no avail. Should Atty, Rivera be held administratively liable for the issuance of a worthless check?

UNIVERSITY

Pambansa Big. 22., Yet, he knowingly violated t.he law and thereby exhibited his indifference towards the pernicious effect of his illegal act to public interest apd public order (Lim v. Atty. Rivera, A.C. Nn. 12156, June 20, 2018, PERLAS· BERNABE). ':

The supreme penalty of disbarment ansing from conduct requires grossly immoral, not simply immoral, conduct (Garrido v. Garrido, A.C. No. 6593, February 4, 2010). Grossly immoral conductis 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. It is willful, flagrant, or shameless act, which shows a moral indifference to the opinion of respectable members of the community

TOMAS

22

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DUTIES AND RESPONSIBILITIES

No. 3249, November 29, 1989);

{Figueroa v. Barranco, SBC Case No. 519,July 31, 1997).

10. A retired judge who penned a decision 7 months after he retired, antedating the decision and forcing his former court staff to include it in the expediente of the case. DISBARRED (Radjaie v. Alovera, .4.C. No.

4. Dishonesty Conduct that includes the disposition to lie, cheat, deceive, defraud or betray; be unworthy; lacking in integrity, honesty, probity, integrity in principle, fairness and straight forwardness

4748, August 4, 2000);

11. Forging a Special Power of Attorney. SUSPENDED FOR 3 YEARS (Rural Bank of Silay, Inc. v. Pilla, A.C. No. 3637, January 24,

(Jimenez v. Francisco, A.C. No. 10548, December 10, 2014).The concealment or distortion of

2001);

·

12. Attempting to engage in an opium deal SUSPENDED FOR 1 YEAR (Piatt v. Abordo, 58 Phil. 3SO, September 1, 1933); or 13. Facilitating the travel of a person to the U.S. using spurious travel documents. DISBARRED [Sebastian v. Ca/is, A.C. No.

truth in a matter relevant to one's office or connected with the performance of his duties gapson v. CSC, G.R. No.189479, April 12, 2011).

Instances of Gross Immorality resulting consequences

OF A LAWYER

and the

')

5118, September 9,}999).

1. Abandonment of wife and cohabiting with another woman. DISBARRED {Obusan v,

Acts NOT constituting gross immorality

Obusan,Jr., A.C. No.1392, April 2, 1964);

2.

I . Turning the head of his client to kiss her on the lips while in a public place and then immediately apologizing afterwards via text message (Advincula v. Macabata, A.C. No. 7204, March 7, 2007); 2. Live-in relationship involving two unmarried persons; or 3. Failure to pay a loan.

A lawyer who had carnal knowledge with a woman through a promise of marriage which he did not fulfill. DISBARRED {In re: Disbarment of Armando Puno, A.C. No. 389, February 28, 1967);

3.

Seduction of a woman who is the niece of a married woman with whom respondent lawyer had an adulterous relation. DISBARRED (Royong v. Oblena, A.C. No. Lawyer arranging marriage of his son to a woman with whom the lawyer had illicit relations. DISBARRED (Mortel v. Aspires.

GR: A lawyer may not be disciplined

for failure to pay a loan. The proper remedy is the filing of an action for collection of a sum of money in regular courts (Toledo v.

A.M. No. 145, December 28, .1956];

Abalos, A.C. No. 5141, September 29, 1999).

Lawyer inveigling a woman into believing that they have been married civilly to satisfy his carnal desires. DISBARRED

XPN: A deliberate failure to pay just debts and the issuance of worthless checks (Lao

376, April 30, 1963); 4.

5.

(Terre

6.

v. Terre, A.M.

No. 2349,July 3, 1992);

v. Medel,A.C. No. 5916,Ju/y 1, 2003).

Lawyer taking advantage of his position as chairman of the college of medicine and asked a lady student to go with him to Manila where he had carnal knowledge of her under threat that if she refused, she would flunk in all her subjects. DISBARRED

with B, his Branch Clerk of Court. C, the wife of Judge A, discovered the illicit affair and consulted a lawyer to vindicate her violated marital rights. If you were that lawyer, what would you advise C, and if she agrees and asks you to proceed to take action, what is the legal procedure that you should follow? (2014 Bar}

(Delos Reyes v. Aznar, A.M. No. 1334, November 28, 1989); 7.

Bigamy perpetrated by the lawyer. DISQUALIFIED FROM ADMISSION TO THE BAR (Royong v.Oblena, A.C. No. 376, April

A: File a case of immorality against Judge A and the clerk of court for violation of Rule 1.01, CPR; impropriety under Canon 4 of the New Code of Judicial Conduct against Judge A; and . invoke the automatic conversion of the • administrative case against Judge A and the clerk of court as members of the bar under . A.M. No. 02-9-02-SC, with the Office of the (

30, 1963);

8.

Concubinage coupled with failure to support illegitimate children. SUSPENDED INDEFINITELY (Laguitan v. Tinio, A.M. No. 3049, December 4, 1989);

9.

•

Q: Judge A has an illicit relationship

a

Maintaining adulterous relationship with married woman. SUSPENDED INDEFINITELY (Cordova v. Cordova, A.M.

UN lVERSITY

23

OF SANTO TOMAS

FACULTY

OF CIVIL LAW

¢t

'9'

•

LEGAL ETHICS Court Administrator. Complaint for disbarment against Judge A and the clerk of court may also be filed (This is without prejudice to the filing of criminal and civil cases).

in violation of her duties as a lawyer. The act of Atty. Jimeno in affixing her signature on a deed of sale containing falsehood and/or inaccuracies constitutes malpractice and gross misconduct in her office as attorney (jimeno v. At91. Jimeno, A.C. No. 12012, July 02, 2018,

Q: There Is an existing dispute regarding a commercial property owned by URCI. Atty.

PERLAS-BERNABE).

Uy mortgaged the same, while there is an , existing Trust Agreement wherein Atty, Uy, in his capacity as President of URCI, already recognizing Yupangco·Nakpil to be the true and beneficial owner of the same. Yupangco·Nakpil filed an administrative complaint. After compromising, YupangcoNakpit withdrew her complaint. Can Atty. Uy be held administratively liable? A. YES. Rule 1.01, Canon 1· of the Code,

engr~ves an overriding prohibition against any form of misconduct The squabble which gave rise to the present administrative case largely constitutes an internal affair, which had already been laid to rest by the parties. • However, Atty. Uy still committed some form of misconduct by, mortgaging the subject property, notwithstanding the apparent dispute over the same. He should not have exposed himself even to the slightest risk of committing a property violation nor any action which would endanger the Bar's reputation. Verily, members of the Bar are expected at all times to uphold the integrity and dignity of the legal profession and 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 (Yupanqco-Nakptl v. Atty. Uy, A.C. No. 9115, September 17, 2014, PERLAS-BERNABE).

Sale to Aquino as attorney-in-fact of Geronimo Sr. even though she knew that Geronimo Sr. merely co-owns the property with his children because of the death of his wife, Perla. Should Atty. · Jimeno be administratively liable? ! A: YES. Instead of advising the Geronimo·Sr.to settle the estate of Perla to enable the proper registration of the property in their names preliminary to the sale to Aquino, she voluntarily signed the subject deed, as attorney-in-fact of Geronimo Sr., despite the patent irregularities in its execution. Despite being aware that something w~s amiss with the documents of sale, Atty. Jilneno allowed herself to become a party to the subject deed which contained falsehood and/or inaccuracies ~.,-.,

UNIVERSITY

2019

OF SANTO TOMAS

GOLDEN

NOTES

for disbarment against Atty.

Ivan Soltdum, Jr., the IBP-CBDfound that he committed the following acts: (1) signing drawn checks against the account of his son as if they were from his own account; (2) misrepresenting to Navarro the identity of the lot he mortgaged to her; (3) misrepresenting to Presbitero the true value of the 263-square-meter lot he mortgaged to her; (4) conspiring with Yulo to obtain the loans from complainants; (5) agreeing or promising to pay 10% interest on his loans although he knew that it was exorbitant; and (6) failing to pay his loans • because the· checks he issued were dishorlored as the accounts were already closed. Is Atty. Solidum guilty of violating the Code of Professional Responsibility? A: YES. Atty. Solidum violated Rule 1.01 of the

Code of Professional Responsibility. Conduct is not confined to the performance of a lawyer's professional duties. A lawyer may be disciplined for misconduct committed either in his professional or private capacity. The test is whether his conduct shows him to be wanting in moral character, honesty, probity, and good demeanor, or whether it renders him unworthy to continue as an officer of the court. Atty. Solidum is guilty of engaging in dishonest and deceitful conduct, both in his professional capacity with respect to his client, Presbitero, and in his private capacity with respect to complainant Navarro. Both Presbitero and Navarro allowed Atty. Solidum to draft the terms of the loan agreements. He drafted the MOAs knowing that the interest rates were exorbitant. Later, using his knowledge of the law, he assailed the validity of the same MOAs he prepared. He issued checks that were drawn from his son's account whose name was similarto his without informing complainants. Further, there is nothing in the records that will show that he paid or undertook to pay the loans he obtained from complainants (Navarro v.Atty. Solidum, Jr., A.C. No. 9872, January 28, 2014).

Q: Atty. Jimeno signed a Deed of Absolute

~. . J

Qi In a case

24

•

•

DUTIES AND RESPONSIBILITIES

OF A LAWYER

property, Carmelita's children, Verlita and Raymond called Atty. Ramon and expressed • their intention to redeem the property by paying the redemption price of 350,000. Atty. Ramon informed them that the redemption was under process, and that the certificate of fedemption would be issued in two to three weeks' time. Verlita and Raymond later Jound out that Atty. Ramon had not deposited the redemption price and had not filed the letter of intent for redeeming the property. Atty, Ramon promised to return the money but failed to do so. Should Atty. Ramon be held administratively liable?

Q: Atty. Rivera misrepresented himself as

an immigration lawyer, which resulted to Agot seeking his assistance to facilitate the issuance of her US visa and paying him the

amount of P350,000.00 as downpayment for his legal services. However, Atty. Rivera was not able to perform his obligation. Is Atty. Rivera administratively liable? A. YES. As officers of the court, lawyers are bound to maintain not only a high standard of legal proficiency; but also of morality, honesty, integrity, and fair dealing, as provided for under Rule 1.01, Canon 1. Atty. Rivera has no specialization in immigration law. Atty. Rivera's deception is not only unacceptable, disgraceful, and dishonorable to the legal profession; it reveals a basic moral flaw that makes him unfit to practice law (Agot v. Atty. Rivera, A.C. No. 8000, August 5, 2014, PERLAS·

A: YES. Atty. Ramon is guilty of dishonesty and deceit. Atty. Ramon certainly transgressed the Lawyer's Oath by receiving money from Verlita and Raymond after having made them believe that she could assist them in ensuring the redemption in their mother's behalf. She further misled them about her ability to realize the redemption by falsely informing them about having started the redemption process. She took advantage of Verlita and Raymond who had reposed their full trust · and confidence in her ability to perform the task by virtue of her being a lawyer.As a lawyer, Atty. Ramon was proscribed from engaging in unlawful, dishonest, immoral or deceitful conduct in her dealings with others, especially clients whom she should serve with competence and diligence. Her duty required her to maintain fealty to them, binding her not to neglect the legal matter entrusted to her. Thus, her neglect in connection therewith rendered her liable (Mercul/o v. Attv, Ramon, AC. No.11078,Jul 19,2016).

BERNABE).

XX rented a house of his cousin, JJ, on a month-to-month basis. He left for a 6· month study in Japan without paying his rentals and electric bills while he was away despite Jf's repeated demands. Upon his return to the Philippines, Atty. XX still failed to settle his rental arrearages and electric bills, drawing JJ to file an administrative complaint against Atty. XX. Atty. XX contended that his non-payment of rentals and bills to his cousin is a personal matter which has no bearing on his profession as a lawyer· and, therefore, he did not violate the Code of Professional Responsibility. ls Atty. X's contention in order? Explain. (2010 Bar) Q: Atty.

A: NO. In a case involving the same facts, the Supreme Court held that having incurred just debts, a lawyer has the moral duty and legal responsibility to settle them when they become due. "Verily lawyers must at all times faithfully perform their duties to society, to the bar, to the court and to their clients. As part of their duties, they must promptly pay their financial obligations"(Cham v. Paita-Moya, A.C. No. 7494, June 27, 2008).

Morality

•

vs. Immoral Conduct

. . MORALITY . . . IMMORAL CONDUCT Morality as Immoral conduct has

understood in law is a human standard based on natural moral law which is embodied in man's conscience and which guides him to do good and avoid . evil.

Just debts include unpaid rentals, electric bills, claims adjudicated by a court of law, and claims the existence and justness which are admitted by the debtor ( Cham v. Poita-Moya, A.C. No.7494,June 27, 2008). NOTE:

. been defined as that ' conduct which is willful, : flagrant, or shameless , and which shows a · moral indifference to the 'opinion of the good and respectable members of the community (Arciga v. Maniwang,

A.M. No .

1608,Au ust14 ·1981

Q: Carmelite has unpaid obligations to NHFMC which is secured by a mortgage. To process the redemption of the mortgaged

Rose Bansig filed a complaint for disbarment against Atty. Celera. Celera was legally married to Bansig's sister, Q:

25

u NIVERshv

OF SANTO TOMAS~ FACULTY OF CIVIL LAW

'¥'

•

DUTIES AND RESPONSIBILITIES OF A LAWYER Q: Atty. Rivera misrepresented himself as

an immigration lawyer, which resulted to Agot seeking his assistance to facilitate the issuance of her US visa and paying him the amount of P350,000.00 as downpayment for his legal services. However, Atty. Rivera was not able to perform his obligation. Is Atty. Rivera administratively liable? A, YES. As officers of the court, lawyers are bound to maintain not only a high standard of legal proficiency; but also of morality, honesty, integrity, and fair dealing, as provided for under Rule 1.01, Canon 1. Atty. Rivera has no specialization in immigration law. Atty. Rivera's deception is not only unacceptable, disgraceful, and dishonorable to the legal profession; it reveals a basic moral flaw that makes him unfit to practice law (Agot v. Atty.

property, Carmelita's children, Verlita and Raymond called, Atty. Ramon and expressed • their intention to redeem the property by paying the redemption price of 350,000. Atty. Ramon informed them that the ~ redemption was under process, and that the certiflcate of redemption would be issued in two to three weeks' time. Verlita and Raymond later found out that Atty. Ramon had not deposited the redemption price and had not filed the letter of intent for redeeming the property. Atty. Ramon promised to return the money but failed to do so. Should Atty. Ramon be held administratively liable? A: YES. Atty. Ramon is guilty of dishonesty and deceit. Atty. Ramon certainly transgressed the Lawyer's Oath by receiving money from Verlita . and Raymond after having made them believe • that she could 'assist, them in ensuring the redemption in thetr : mother's behalf. She further misled them about her ability to realize the redemption by falsely informing them about having started the redemption process. She took advantage of Verlita and Raymond who had reposed their full trust and confidence in her ability to perform the task by virtue of her being a lawyer.As a lawyer, Atty. Ramon was proscribed from engaging in unlawful. dishonest, immoral or deceitful conduct in her dealings with others, especially clients whom she should serve with competence and diligence. Her duty required her to maintain fealty to them, binding her not to neglect the legal matter entrusted to her. Thus, her neglect in connection therewith rendered her liable (Mercullo v. Atty. Ramon,

Rivera, A.C. No. 80001 August S, 2014, PERLAS·

BERNABE).

•

Q: Atty. XX rented a house of his cousin, JJ, on a month-to-month basis. He left for a 6· month study in Japan without paying his rentals and electric bills while he was away despite )J's repeated demands. Upon his return to the Philippines, Atty. XX still failed to settle his rental arrearages and electric bills, drawing JJ to file an administrative complaint against Atty. XX. Atty. XX contended that his non-payment of rentals and bills to his cousin is a personal matter which has no bearing on his profession as a lawyer and, therefore, he did not violate the Code of Professional Responsibility. Is Atty. X's contention in order? Explain. (2010 Bar)

AC. No. 11078,Jul 19, 2016).

A: NO. In a case involving the same facts, the Supreme Court held that having incurred just debts, a lawyer has the moral duty and legal responsibility to settle them when they become due. "Verily lawyers must at all times faithfully perform their duties to society, to the bar, to the court and to their clients. As part of their duties, they must promptly pay their financial obligations"(Cham v. Paita-Moyo, A.C.

Morality

vs. Immoral Conduct

· MORALITY . . Morality as understood in Jaw is a human standard based on natural moral law which is embodied in man's · conscience and which guides him to do good and avoid evil.

No. 7494,, June 27, 2008).

NOTE: Just debts include unpaid rentals, electric bills, claims adjudicated by a court of law, and claims the existence and justness which are admitted by the debtor (Cham v.

l

Paita-Moya, A.C. No.7494,June 27, 2008).

Q: Carmelite has unpaid obligations to NHFMC which is secured by a mortgage. To process the redemption of the mortgaged

IMMOAAL CONDUCT conduct has been defined as that conduct which is willful, flagrant, or shameless and which shows a moral indifference to the opinion of the good and respectable members of the community (Arciga v. Maniwang, A.M. No. Immoral

1608, Au ust 14 1981

Rose Bansig filed a complaint for disbarment against Atty. Celera. Cetera was legally married to Bansig's sister, Q:

25

UN [VERSITY OF:SANTO TOftfAS ~ FACULTY:iOF CJVIL LAW •••

•

•

LEGAL ETHICS I

Rosemarie Bunagan. However, notwithstanding the marriage with Bunagan, Atty, Cetera contracted another marriage with a certain Ma. Clelo Paz Torres Alba, as evidenced by a certified copy of the certificate of marriage. Despite numerous efforts of Rose and the court, Atty. Cetera, in his defense, repetitively stated that he had no knowledge of the complaint since he has yet to receive a copy of ft. Is the contention of Atty. Celera tenable?

Indeed, his act of having carnal knowledge of a woman other than his wife manifests his disrespect for the laws on the sanctity of marriage and his own marital vow of fidelity. Moreover, he procured the act by enticing a very young woman with money, which showed his utmost moral depravity and low regard for the dignity of the human person and the ethics of his profession. He has violated the trust and confidence reposed on him by complainant, then a 13-year-old minor, who for a time was under his care. Whether the sexual encounter between him and complainant was or was not with the latter's consent is of no moment. Such conduct is a transgression of the standards of morality required of the legal profession and should be disciplined accordingly (Ventura v. Samson, A.C. No. 9608, November 27, 2012).

A: NO. He exhibited a deplorable lack of that degree of morality required of him as a member of the Bar. He made a mockery of marriage, a sacred institution demanding respect and dignity.

An administrative complaint for disbarment was filed against Atty. Iris Bonifacio for allegedly carrying an immoral relationship with Carlos, husband of complainant Leslie. Atty. Bonifacio contended .that her relationship with Carlos was licit because they were married. And when she discovered Carlos' true civil status, she cut off all her ties with him. Is Atty. Iris guilty of committing gross immoral conduct warranting her disbarment? Q:

Also, we take notice of Atty. Celera's defiant stance against the Court as demonstrated by his repetitive disregard of its Resolution. Even assuming that Indeed the copies of the complaint had not reached him, he cannot, however, feign ignorance that there is a complaint against him that is pending before this Court which he could have easily obtained a copy had he wanted to. His acts were deliberate, maneuvering the liberality of the Court in order to delay the disposition of the case and to evade the consequences of his actions. His cavalier attitude in repeatedly ignoring the orders of the Supreme Court constitutes utter disrespect to the judicial institution. Respondent's conduct indicates a high degree of irresponsibility· (BunaganBansig v. Ce/era, A.C. No. 5581, January 14, 2014). '

A: NO. Her relationship with Carlos, clothed as it was with what Atty. Bonifacio believed was a valid marriage, cannot be considered immoral. Immorality connotes conduct that shows indifference to,: the moral norms of the community. Moreover, for such conduct to warrant disciplinary action, the same must be "grossly immoral", that is it must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high . degree. Atty. Bonifacio's act of immediately distancing herself from Carlos upon discovering his true civil status belies that alleged moral indifference and proves that she had no intention of flaunting the law and the high moral standard of the legal profession (Ui v. Atty. Bonifacio, A.C. No. 3319,june 8, 2000).

Q: Maria Victoria Ventura filed an administrative complaint against Atty. Danilo Samson for allegedly raping her when she was merely 13 years old. Atty. Samson admitted that they had a sexual relationship but countered that such was done with mutual agreement and in consideration of money. Did Atty. Samson's act constitute "grossly immoral conduct" that would warrant his disbarment?

Q: Patricia and Simeon were teen sweethearts. It was after their child was born that Simeon first promised he would marry her after he passes the bar examinations. Their relationship continued and Simeon allegedly made more than twenty or thirty promises of marriage. Patricia learned that Simeon married

A: YES. Atty. Samson's act of engaging forme1• in sex . with a young lass, the daughter of his employee, constitutes gross immoral conduct that warrants sanction. He not only admitted he had sexual intercourse with complainant but also showed no remorse whatsoever when he asserted that he did nothing wrong because she allegedly agreed, and he gave her money. 0

UNIVERSITY

2019

OF SANTO

GOLDEN

NOTES

TOMAS

26

•

•

DUTIES AND RESPONSIBILITIES

OF A

LAWYER

February 3, 2015).

another woman. Meanwhile, Simeon successfully passed the 1970 bar examinations after four attempts. Before he could take his oath, Patricia filed a petition to disqualify Simeon to take the Lawyer's Oath on the ground of gross immoral

Examples of acts involving moral turpitude and the resulting consequences l..

Conviction

of Estafa

and/or

•

BP 22.

DISBARRED (/n th, Matt,r of Dl1barm1nt

conduct, Did the ac:t of Simeon In engagtna in premarttal relatlohs with Patdcia and making promises to marry her constitute gross immoral conduct?

2.

A: NO, the Supreme Court ruled that the facts do not constitute gross immoral conduct warranting a permanent exclusion of Simeon from the legal profession. His engaging in premarital sexual relations with complainant and promises to marry suggests a doubtful moral character on his part but the same does not constitute grossly immoral conduct To justify suspension or disbarment the act complained of must not only be immoral, but grossly immoral. 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 (Figueroa v. Barranco.Ir; SBC Case No. 519,July 31, 1997).

3.

. 4.

5.

6.

Moral turpitude 7.

An act of baseness, vileness, or depravity in the private duties which a man owes to his fellow men or to society in general, contrary to justice, honesty, modesty, or good morals (Garcia v. Sesbreno, A.C No. 7973 and A.C. No. 10457, February 3, 2015).

8.

9. NOTE: Moral turpitude is not involved in every

criminal act and is not shown by every known and intentional violation of statute, but whether any conviction involves moral turpitude may be a question of fact and frequently depends on all the surrounding circumstances. While generally but not always, crimes mala in se involve moral turpitude, while crimes mala prohibita do not, it cannot always be ascertained whether moral turpitude does or does not exist by classifying a crime as malum in se or as malum prohibitum, since there are crimes which are mala in se and yet rarely involve moral turpitude and there are crimes which Involve moral turpitude and are mala prohibita only. It follows therefore, that moral turpitude is somewhat a vague and indefinite term, the meaning of which must be left to the process of judicial inclusion or exclusion as the cases are reached (Garcia v. Sesbreno, A.C. No. 7973 and A.C. No. 10457,

10.

Prbceedings v. Narciso N. Jaraitll/Jo, Eh Banc A.C. No. 229, April 30, 1957); Conviction of bribery/ attempted bribery. DISBARRED (In ;: Re: Dalmacio De /os Angeles, A.C. No. L-350, August 7, 1959; 7 C.].S., p. 736; 5 Am. jur. p. 428); Conviction of murder, DISBARRED (In Re: Disbarment Proceedings Against Atty. Diosdado Q. Gutierrez, A.C. No. L- 363, July 31, 1962); Conviction of illegal marriage before admission to the bar. DISQUALIFIED FROM BEING ADMITTED TO THE BAR (Villasanta v. Peralta, 101 Phil.313, April 30, 1957); Conviction of falsification of public document REMOVED FROM HIS OFFICE/NAME ERASED FROM ROLL OF ATTORNEYS (De Jesus-Paras v. Yailoces, A.C. No. 439,April 12, 1961); Conviction of Estafathrough falsification of public document. DISBARRED (Villanueva v. Sta. Ana, CBD Case No. 2.51, July 11, 1995); Conviction of Abduction. SUSPENDED FROM OFFICE FOR 1 YEAR (ln Re Basa, 41 Phil. 275, December 7, 1920); Conviction of Concubinage. SUSPENDED FROM OFFlCE FOR 1 YEAR (In re lsada, 60 Phil. 915, November 16, 1934); Conviction of Smuggling. DISBARRED (In re Rovero, A.C. No. 126, October 24, 1952); or Conviction of homicide. DISBARRED(Garcia v. Sesbreno, A.C. No. 7973 and A.C. No. 10457, February 3, 2015).

•

NOTE: Psychological incapacity of a lawyer does not necessarily make him an unfit member of the Bar (Paras v. Paras, G.R. NO. 147824, August 2, 2007). Atty. Simeon persuaded Armando, Benigno and Ciriaco to invest in business venture that later went bankrupt. Armando, Benigno and Ciriaco charged Atty. Simeon with estafa. Simultaneously, they filed an administrative complaint against the lawyer with the Supreme Court. If Simeon is convicted of estafa, will he be disbarred? Explain. (2009 Bar) Q:

27

UNlVERSITY OF SANTO TOMAS¢ FACULTY OF CIVIL LAW ....

•

LEGAL ETHICS A: YES. One of the grounds for disbarment under Sec. 27, Rule 138, is conviction of a crime involving moral turpitude. Estafa is a crime involving moral turpitude.

NLRC's decision was adverse to Chu. Was the advice given by Atty. Guico proper? A: NO. Every lawyer should not render any service or give advice to any client that would involve defiance of the laws that he was bound to uphold and obey,for he or she was always bound as an attorney to be law abiding, and thus to uphold the integrity and dignity of the Legal Profession.Verily, he or she must act and comport himself or herself in such a manner that would promote public confidence in the integrity of the Legal Profession. Atty. Guico violated the law against bribery and corruption. He compounded his violation by using said illegality as his means of obtaining a huge sum from the client that he soon appropriated for his own personal interest His acts constituted gross dishonesty and deceit and were a flagrant breach of his ethical commitments under the Lawyer's Oath not to delay any man for money or malice; and under Rule 1.01 of the CPR. His deviant conduct eroded the faith of the people in him as an individual lawyer. .as well as in the Legal Profession as a whole. In doing SO, he ceased to be a servant of the law (Chu v. Guico, Ir; A.C. No. 10573,January 13, 2'015).

Q: If Atty, Simeon is acquitted of the estafa charge, will the disbarment complaint be dismissed? Explain. (2009 Bar) A: Not necessarily.If the acquittal is based on the ground that no crime was committed, or that Simeon is innocent, the administrative case may be dismissed. But if the acquittal is based merely on reasonable doubt, the disbarment proceeding may continue. The purpose of a disbarment proceeding is to determine whether a lawyer deserves to remain a member of the bar. For such determination, conduct which merely avoids the penalty of the law is not sufficient. RULE 1.02, CANON 1

A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. (1994, 1998 Bar)

Examples of activities aimed at defiance of the law or at lessening confidence in the legal system 1.

2.

!

Advising his clients to execute another Deed of Sale antedated to evade payment of capital gains taxes (Chua v. Mes.Ina . A.C.

No. 4904, August 12, 2004); Lawyer who engages in prohibited ' campaigning, use of government resources and solicitation of votes, in campaigning for national positions in the IBP (Re: 1989 Elections of IBP, B.M. No. 491, October 6,

1989); or 3.

Repeatedly disobeying orders of SEC to appear in its hearings and repeatedly failing to substantiate his excuse for failing to appear (Batac et al. v. Cruz, Jr., A.C. No.

5809, February 23, 2004). Q: Chu retained Atty. Guico as counsel to

handle labor disputes involving his company. In one case, Atty. Guico asked 'Chu to prepare a substantial amount of money to be given to the NLRC Commissioner handling the appeal to insure a favorable decision, C::hu was able to raise P300,000. Atty, Gulco again advised Chu to raise anotherP300,000.00 to encourage the NLRC Commissioner to issue the decision. But Chu could only produce P280,000.00. The UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTES

•

Q: Atty. Asilo, a lawyer and a notary public, notarized a document already prepared by spouses Roger and Luisa when they approached him. It Is stated In the document that Roger and Luisa formally agreed to live separately from each other and either one can have a ltve-ln partner with full consent of the other. What is the liability of Atty. Asilo, if any? (1998 Bar) A: Atty. Asilo may be held administratively liable for violating Rule 1.02 of the CPR • a lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. An agreement between two spouses to live separately from each other and either one could have a live-in partner with full consent of the other, is contrary to law and morals. The ratification by a notary public who is a lawyer of such illegal • or immoral contract or document constitutes malpractice or gross misconduct in office. He should at least refrain from its consummation (111 Re: Santiago, A.C. No. 923, June 21, 1940; Panganiban v. Borromeo, 58 Phil. 367; In Re: Bucana, A.C. No.1637,July 6, .1976). RULE 1.03, CANON 1

A lawyer shall not, for any corrupt motive or

28

•

•

DUTIES AND RESPONSIBILITIES OF,A LAWYER interest, encourage any suit or proceeding or delay any man's cause.

,

The rule is aimed against the practice of barratry, stirring up litigation and ambulance chasing.

•

Crime of maintenance Maintenance is the intermeddling of an uninterested party to encourage a lawsuit It is a taking in hand, a bearing up or upholding of quarrels or sides, to the disturbance of the common right (Puna, 2009). A lawyer owes to society and to the court the duty not to stir up litigation.

Barratry vs. Ambulance chasing (1993 Bar} . · .BARRATRV .: ., . · . An offense of frequently exciting and stirring . up quarrels and suits, either at law or otherwi.se; lawyer's act of fomenting suits among individuals and offering his legal services to one of them. Barratry is not a crime under the Philippine laws. However, it is proscribed by the rules of legal ethics.

L

Detroit Edison Co. ·~~~~~~.._--=2~4~7~N~W~9~7~,1~9~9~3'---'

AMBULANCE .' . CHASIN.G : . An act of chasing victims of accidents to talk to the said victims (or relatives) and to offer his legal services for the filing of a case against the person(s) who caused the accident(s). It has spawned a number of recognized evils such as (FSMD):

Impropriety of voluntary giving of advice . It is improper to voluntarily give legal advice • when the lawyer, in giving such, is mottvated by a desire to obtain personal benefit, secure personal publicity, or cause legal action to be taken merely to harass or injure another. It is allowed in rare cases where ties of blood, relationship or trust make it his duty to do so (Canon 28, CPE).

Fomenting of litigation with resulting burdens on the courts and the public; 2. Subordination of perjury; 3. Mulcting of innocent persons by judgments, upon manufactured causes of action; and 4. Defrauding of injured persons . having proper causes of action but ignorant of legal rights and court procedures by means of contracts which retain exorbitant percentages of recovery and illegal charges for court costs and expenses and by settlement made for quick returns of fees and against just rights of the injured persons. Hi htower v. 1.

Q: Atty. Melissa witnessed the car accident that resulted in injury to Manny, a friend of hers. While visiting him at the hospital, she advised him about what action he needed to take regarding the accident. Is Atty. Melissa subject to disciplinary action if she eventually handles the case for him? (2011 Bar) A: NO. It is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases where ties of blood, relationship or trust make it his duty to do so (Canon 28, CPE) In the case at hand, since Atty. Melissa is a friend of the injured person, she may not be admonished for extending some legal advice to a friend in need. · Q: Atty. X advised complainant that to stop the ejectment suit against him, Atty. X would file a complaint with the Baguio CFI. Complainant gave Atty. X PS,863.00 for fees and miscellaneous fees. 'However, the complaint was not filed. By way of defenses, the lawyer presented complainant's affidavit of desistance; claimed that upon perusal of the records of the ej ectment case, he found that complainant had already filed a Third-Party complaint, thereby making the proposed suit unnecessary. Is he liable for misconduct? A: YES, the lawyer is liable for misconduct. It is clear from the facts that the lawyer had

29

UNIVERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW

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•

LEGAL ETHICS deceitfully defrauded the complainant. By receiving the amount of P 5,863.00 from the complainant in order to represent him, the lawyer violated Rule 1.01 of Canon 1 of the CPR. He should have filed the complaint before the CFI of Baguio. He clearly acted in a deceitful

reconcile the parties before the filing of the suit?

A: YES. The conduct of the respective counsel of the parties, as revealed by the records, sorely disappoints the Court and invites reproof. Both counsels may well be reminded that their ethical duty as lawyers to represent their clients with zeal goes beyond merely presenting their clients' respective causes in court. It is just as much their responsibility, if not more importantly, to exert all reasonable efforts to smooth over legal conflicts, preferably out of court and especially in consideration of the direct and immediate consanguineous ties; between their clients. Once again, the useful function of a lawyer is not only to conduct litigation but to avoid it whenever possible :by advising settlement or withholding suit. is often called upon less for dramatic forensic exploits than for wise counsel in every phase of life. He should be a

conduct by misrepresenting to file a complaint In order to affect the eJectment suit Also, the lawyer encouraged the suit which is groundless and unfounded in order to gain a financial interest (Munar v. Flores, A.C. No. 2112, May 30, 1983). RULE 1.04, CANON 1

A lawyer shall encouragehis clients to avoid, end or settle a controversy if it will admit of afair settlement. Lawyers are called upon to resist the whims and caprices of their clients and to temper the latter's propensity to litigate because the Lawyer's Oath to uphold the cause of justice is superior to his duty to his clients (Visbal v. Buban, A.M. No. MTJ-02·1432, September 3, 2004).A lawyer should be a mediator for concord and a conciliator for compromise rather than an initiator of controversy and a predator of conflictlt is the duty of a lawyer in his exalted position as an officer of the court not to be an instigator of any controversy (Pineda, 2009). The rule requires that lawyers encourage settlement only when the same is fair. It should be noted that the duty and the right of the lawyer is limited to encouraging the client to settle. Ultimately, however, the final decision to settle a claim rests upon the client. A lawyer cannot compromise the case · of his client without the latter's consent even if he believes that the compromise is for the better interest of the client (Pineda, 2009, citing Philippine

He

mediator for concord and a conciliator for compromise, rather than a virtuoso of technicality in the conduct of litigation (De Ysasi l//v. NLRC, G.R. No.104599, March 11, 1994). ·

EFFICIENT AND CONVENIENT . . · .. · . · LEGAL SERVICES CANON2

A lawyer shall make his legal services available in an efficient and convenient manner compatible with the independence,integrity and effectiveness

'

RULE 2.01, CANON 2

A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed.

Q: Jon de Ysasi III was employed by his father in their farm. During the entire period of his illness, his father took care of his medical expenses and he continued to receive compensation. However, without due notice, his father ceased to pay his salary. He made oral and written demands through Atty. Sumblngcoasked for an explanation for the withholdingand for the remittance of his salary. Both demands were not acted upon, He filed a case in court. Can the lawyers employed by the parties be admonished for not trying to

Definitions 1.

Defenseless

Those who are not in a position to defend themselves due to poverty, weakness, ignorance or other similar reasons.

2. Oppressed

'li

'

i Those who are the victims of the cruelty, unlawful exaction, domination or excessive use 'i

UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTES

•

NOTE: It is the lawyer's prime duty to see to it that justice is accorded to all without discrimination.

Aluminum Wheels Inc. v. FASCI Enterprises Inc., G.R. No. 137378, October 12, 2000).

(.- ..) \.,~

.

..

30

•

DUTIES AND RESP.ONSIBILITIES OF A

LAWYER •

A lawyer or professional partnerships rendering actual free legal services shall be entitled to an allowable deduction from the gross income, the amount that could have been collected for the actual free legal services rendered or up to ten percent (10%) of the gross income derived from the actual performance of the legal profession, whichever is lower: Provided, That the actual free legal services herein contemplated shall be exclusive of the minimum sixty (60)-hour mandatory legal aid services rendered to indigent litigants as required under the Rule on Mandatory Legal Aid Services for Practicing Lawyers, under Bar 'Matter No. 2012,· issued by the Supreme-Court

of authority. A lawyer so appointed as counsel for an indigent prisoner, as the Canons of Professional Ethics demands, should always . "exert his best efforts" in the indigent's behalf (People v. Estebia, G.R. No. L-26868, December

. 27, 1972).

NOTE:The inability to pay for legal services is not a valid reason to refuse acceptance of a case. This is because the profession is a branch of the administration of justice and not a mere money-getting trade (CPR Annotated,Phi!JAJ. AN ACT PROVIDING A MECHANISM FOR . FR~E LEGAL ASSISTANCE AND FOR OTHER ·

PURPOSES (RA No. 9999)

·.

FEBRUARY23, 2010

•

{Sec. 5, RA 9999).

Salient Features of RA 9999

. · :

.

1. Purposes of RA No. 9999 (Free Legal Assistance Act of 2010) 2. Encourage lawyers and professional partnerships to provide free legal assistance; 2. Solicit the assistance of lawyers and professional partnerships in the private practice of law in providing quality legal assistance to indigent litigants through a system of tax incentives; 3. Provide relief to the Public Attorney's Office (PAO) and other associations accredited by the Supreme Court from the numerous cases it handles; 4. Provide indigent litigants the opportunity to acquire the services of distinguished law firms and legal practitioners of the country for free; and 5. Ensure that the right of every individual to counsel, as mandated in the Constitution, is protected and observed. 1.

3.

4.

The law will allow indigent litigants to acquire the services of renowned lawyers and law firms for free; In exchange for the services rendered by the lawyer or the law firm, they will be given tax incentives equivalent to the cost of the services rendered to the indigent litigant; It will help relieve the Public Attorney's Office (PAO) of its numerous caseloads involving indigent .litigants who shall be referred to lawyers.or law firms in private practice; and ' It should entice renowned and distinguished firms and lawyers in the practice as their services shall be compensated commensurately through the tax incentives. RULE 2.02, CANON 2

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

Services available

latter'sriqhts,

Public Attorney's Office (PAO), Department of Justice (DOJ) and other legal aid clinics accredited by the Supreme Court shall refer pauper iitlgants to identified lawyers and professional partnerships. PAO, DOJ or the accredited legal aid clinics shall issue a certification that services were rendered by the lawyer or the professional partnership under this act. The certification shall include the cost of the actual services given{Sec. 4, RA

Rendering of Legal Advice includes preliminary steps that should be taken, at least, until the person concerned has obtained the services of a proper counsel's representation. Even though no attorney-client relationship is created between the parties, the lawyer, by providing interim advice, preserves the dignity of the profession by inspiring public faith in the profession (CPR Annotated, Phil/A).

9999).

Q: Wanda finally became pregnant in the

Incentives to lawyers giving free service

10th year of her marriage to Horacio. As her pregnancy progressed, she started having

31

UNIVERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW

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LEGAL ETHICS difficulty breathing and was easily fatigued. The doctors diagnosed that she has a heart congestion problem due to a valve defect, and that her chances of carrying a baby to full term are slim. Wanda ls scared and contemplates the possibility of abortion. She thus sought legal advice from Diana, a lawyer-friend and fellow church member, who has been informally advising her on legal matters. What is Diana's best ethical (2013 Bar)

Advertisements GR: Advertisement by lawyers is NOT allowed. The most worthy and effective advertisement possible is the establishment of a well-merited reputation for professional capacity and fidelity to trust(Director of Religious Affaits v. Bayot, A.C. No. i-: 117,, March 20, 1944). REASON: The proscription against advertising of legal services or solicitation of legal business rests on the fundamental postulate that the practice of law is a profession (Ulep v. Legal Aid, Inc; B.M. No. 553,june 17, 1993).

response?

A: Advise Wanda on the purely legal side of her problem and assure her that abortion is allowed by law if the pregnancy endangers the life of the mother (Rule 2.01·2.02, CPR).

XPNs: [LEPO-LABAN-PD] 1.

'

Q: The rendition of free legal services is a

lawyer's: (2014 Bar) 2. A: Moral duty is above social obligation and legal mandate. The lawyer voluntarily imposes upon himself higher duties and more noble obligations enshrined in the Lawyer's Oath which goes beyond commitment to social obligation and legal mandates.

3.

RULE 2.03, CANON 2

A lawyer shall not do or permit to be done any act designated primarily to solicit legal , business (1997 Bar)

4.

Rationale behind the rule that legal profession ls not considered as a business (2006 Bar}

5. It is not a business because it is a: 1.

2.

3. 4.

5.

Duty of public service, of which the emolument is a byproduct, and in which one may attain the highest eminence without making much money; Relation, as an "officer of the court", to the administration of justice Involving thorough sincerity, integrity and reliability; Duty of public service; Relation to clients with the highest degree of fiduciary; and Relation, to the colleagues at the bar, characterized by candor, fairness, and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients.

6. 7.

8. 9. 10.

11. UNIVERSITY OF SANTO 2019 GOLDEN NOTES

TOMAS

32

Reputable Law lists, in a manner consistent with the standards of conduct imposed by the canons, of brief biographical and informative data; Advertisements or simple announcement of the Existence of a lawyer or his law firm posted anywhere where it is proper such as his place of business or residence except courtrooms and government buildings; Ordinary, simple Professional Card. It may contain only a statement of his name, the name of the law firm which he is connected with, address, telephone number and the special branch of law practiced; A simple announcement of the Opening of a law firm or 'of changes In the partnership, associates, firm name or office address, being for the convenience of the profession; Advertisements or announcement in any Legal publication, including books, journals, and legal magazines and in telephone directories (U/ep v. Legal Clinic, lnc., B.M. No. 553, June 17, 1993); Writing legal Articles; Engaging in Business and other occupations except when such could be deemed Improper, be seen as. indirect solicitation or would be the equivalent of a law practice; ,; Activity · of an· association for legal representation; Notice to other local lawyers and publishing in a legal journal of one's availability to act as an associate for them; Seeking a Public office, which can only be held by a lawyer or, in a dignified manner, a position as a full-time corporate counsel; and Listing in a phone Directory, but not under

•

•

•

DUTIES AND RESPONSIBILITIES OF A LAWYER A lawyer is not prohibited from engaging in

a designation of a special branch of law

business or other lawful occupation. Impropriety arises, though, when the business is of such a nature or is conducted in such a manner as to be inconsistent with the lawyer's duties as a member of the bar. This arises when the business is one that can readily lend itself to the procurement of professional employment for the lawyer; or that can be used as a cloak for indirect solicitation on the lawyer's behalf; or is of a nature that, if handled by a lawyer, would be regarded as the • 'practice of law. It is clear from- the documentary evidence submitted by complainant that Jesi & Jane Management, Inc, • which purports to be a financial and legal consultant, was indeed a vehicle used by Atty. Tabalingcos as a means to procure professional employment; speciflcally, for corporate rehabilitation cases (Villatuya v. Tabalinqcos,

(Atly. Khan Jr. v. Att;y. Simbillo, A.C. No. 52991 August 19, 2003).

NOTE: For solicitation to be proper, it must be compatible with the dignity of the legal profession. If made in a modest and decorous manner, it would bring no injury to the lawyer or to the bar (Pineda, 2009). Rationale for Advertisements

the

Prohibition

of

1. The profession is primarily for public 2. 3. 4. 5.

service; Commercializes the profession; Involves self-praise and puffing; Damages public confidence; and May , increase lawsuits and result needless litigation.

in

•

A.C. No. 6622, July 10, 2012). ;1

Examples of indirectsolicitation 1. 2.

Q: Atty. David agreed to give 'f2 of his professional fees to an intermediary or commission agent and he also bound himself not to deal directly with the clients. Can he be subject to disciplinary action?

Writing and selling for publication articles of general nature on legal subjects; and Writing unsolicited articles on a legal subject.

NOTE: If engaged in another profession or occupation concurrently with the practice of law, the lawyer shall make clear to his client whether he is acting as a lawyer or in another capacity.

A: YES. The agreement is void because it constitutes malpractice which is the practice of soliciting cases of law for profit, either personally or through paid agents or brokers. Malpractice ordinarily refers to any malfeasance or dereliction of duty committed by a lawyer. The meaning of malpractice is in consonance with the notion that the practice of law is a profession not a business. The lawyer may not seek or obtain employment by himself or through others, to do so would be unprofessional (Tan Tek Beng v. David, A..C. No.

Q: Atty. Tabalingcos was charged with unlawfully soliciting clients and advertising legal services through various business entities. He allegedly set up two financial consultancy firms, Jesi and Jane Management, Inc. and Christmel Business Link, Inc., and used them as fronts to advertise his legal services and solicit cases. However, he contended that his Jaw firm had an agreement with Jesi and Jane Management, Inc., whereby the firm would handle the legal aspect of the corporate rehabilitation case; and that the latter would attend to the financial aspect of the case' such as the preparation of the rehabilitation plans to be presented in court. Is Atty. Tabalingcos guilty of unlawful solicitation 7

1261, December 29, 1983). NOTE: A general professional partnership with

a non-lawyer is void. In the formation of partnership for the practice of law, no person should be admitted or held out as a practitioner or member who is not a member of the legal profession duly authorized to practice, and amenable to professional discipline (Canon33, CPE). Q: Atty. Dulcinea writes a regular column in a newspaper of general circulation and articles on unforgettable legal stories in a leading magazine. Her by-line always includes the name of her firm where she is a named partner, Would you consider this as improper advertising?

A: YES, He violated Rule 2.03ofthe Code, which prohibits lawyers from soliciting cases for profit.

33

U NTVERSITY OF SANTO TOMAS FACULTY 10F CIVIL LAW

ct) '9 •

LEGAL ETHICS A: YES. Atty. Dulcinea's by-line including the firm name where she belongs Is improper because it is an indirect way of solicitation or is an advertisement of the law firm.

.

NCC).

a daily 10-minute radio program billed as a "Court of Common Troubles." The program is advertised by the radio station as a public service feature for those who seek but cannot afford to pay for legal advice. Its sponsors include a food processing company and a detergent manufacturing firm which share with the radio station the monthly remuneration of 1Atty. E, Is there any impropriety in Atty. E's role under the above arrangement? (1997 Bar) Q: Atty. E has

•

A: YES. Giving advice on legal matters through the medium of a newspaper column or radio station or television broadcast is improper. It would involve Indirect advertising and violation of the confidential relation between the lawyer and the client (Agpalo, 2002). Q: Atty. Nelson recently passed the Bar and wanted to specialize in marine labor law. He gave out calling cards with his name, address and telephone number in front, and the following words at the back: "We provide legal assistance to overseas .seamen who are repatriated due to accident, illness, injury, or death. We also offer FINANCIAL ASSISTANCE."Does this constitute ethical misconduct? (2012 Bar)

RULE 2.04, CANON 2

A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant (1997,~005 Bar) GR: A lawyer shall not charge rates lower than those customarily prescribed. XPN: When clients are relatives, co-lawyers, or are indigents. What the rule prohibits is a competition in the matter of charging professional fees to attract 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 (Comments of the IBP Committee).

A: YES, the calling card contains advertisement in violation of Canon 3 of CPR. The phrase "We also offer financial assistance" was clearly used to entice clients who already had representation to change counsels with a promise of loans to finance their legal actions. Money was dangled to lure clients away from their original lawyers, thereby taking advantage of their financial distress and

. TIUJl,~. HONEST, F/\IR, DIGNIFIED AND . · .. ORJF.CTIVE INFORMATION ON LEGAL

TOMAS

·

The practice of law is not a trade like the sale of commodities to the general public where "the usual exaggerations in trade, when the proper party had the opportunity to know the facts, are not in themselves fraudulent" {Art. 1340,

NOTE:The rule against solicitation applies to a lawyer who offers monetary reward to those who can serve as witness/es in the case, which he is handling (CPR Annotated, Phi/JA).

OF SANTO

· .

Brazen commercialization of legal services is not allowed

A: YE~. It has been repeatedly stressed that the practice of law is not a business. It is a profession in which duty to public service, not money, Is the primary consideration. Lawyering is not primarily meant to be a money-making venture, and law advocacy is not a capital that necessarily yields profits. The gaining of a livelihood should be a secondary consideration. The duty to public service and to the administration of justice should be the primary consideration of lawyers, who must subordinate their personal interests or what they owe to themselves (Atty. Khan Jr. v. Atty. Simbillo,A.C. No. 5299, August 19, 2003).

GOLDEN NOTES

. SERVICES· , CANON3

July 5, 2000 issue of Philippine Daily Inquirer, which reads: "ANNULMENT'OF MARRIAGESpecialist 532-4333/521-2667." Similar advertisements were published in the August 2 and 6, 2000 issues of the Manila Bulletin and August 5, 2000 issue of The Philippine Star. Does the appearance of SU(:h in a newspaper, amount to advertising and solicitation of legal services prohibited by the Code of Professional Responsibility and the Rules of Court?

2019

.

A lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts

Q: A paid advertisement appeared in the

UNIVERSITY

·

34

•

• DUTIES AND RESPONSIBILITIES OF A LAWYER use of any misleading, undignified, selflaudatory or unfair statement or claim • regarding his qualifications or legal services (Canon 3, CPR).

emotional vulnerability. This crass commercialism degraded the integrity of the bar and deserves no place in the legal profession (Linsangan v. Atty. Tolentino, A.C. No. 6672, September 4, 2009).

RULE 3.01, CANON 3

Q: As a new lawyer, Attorney Novato started with a practice limited to small claims cases, legal counseling, and notarization of documents. He put up a solo practice law office and was assisted by his wife wiio served as his secretary /helper. He used a makeshift hut in a vacant lot near the local courts and a local transport regulatory agency. With this strategic location, he enjoyed heavy patronage assisting walk-in clients in the preparation and filing of pleadings and in the preparation and notarization of contracts and documents. He had the foresight ofinvesting in a good heavy duty copier machine that reproduces quality documents, and charges a reasonable fee for this service. He put up a shingle that reads: "Atty. Novato, Specialist in Small Claims, Fastest in Notarization; the Best and Cheapest in Copier Services."

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 legalservices. (1997 Bar}

•

I

Any false, exaggerating'or untrue claims about his qualification are clearly unethical. Example: When a lawyer makes representation to a prospective client that he has never lost a single case in his entire career. Certainly, this is impossible for the best lawyers in the country have experienced losing cases (Antiquiera, 1992). Self-laudation is prohibited Certain self-laudatory information such as election to a public office, scholastic honors and achievements, and legal authorships may be disseminated. What is prohibited is that which "creates · an unjustified expectation about results the lawyer can achieve (Puna, 2009).

Is Attorney Novato's manner of carrying out his professional practice in keeping with appropriate ethical and professional practice? (2013 Bar) A: NO. Attorney Novato's manner of carrying out his professional practice is not in keeping with appropriate ethical and professional practice. He has degraded the law profession which may resulting loss of respect to lawyers as a whole.

Examples of Advertisements considered as deceptive 1. 2.

The use of a makeshift hut standing alone would create the impression that the lawyer does not have a permanent address which is required to be stated in all pleadings he signs as well as required to be shown in documents he notarizes.

3. 4.

His shingle shows that he has considered the Jaw profession as a business. He should have separate shingle for his copier services business.

Misstatements of fact; Suggestions that the ingenuity or prior record of a lawyer rather than the justice of the claim are the principal factors likely to determine the result; Inclusion of information irrelevant in selecting a lawyer; and Representations concerning the quality of service, which cannot be measured or verified (CPR Annotated, Phil]A).

RULE 3.02, CANON 3 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. {1994, 1996, 2001 Bar)

When he included in his shingle the phrases "Specialist in Small Claims" and "Fastest in Notarization" he has transgressed the rule that a lawyer in making known his legal services shall use only dignified information or statement of facts. He has also violated the norm that a lawyer shall not use or permit the

A lawyeris not authorized to use a name other than the name inscribed in the Roll of

35'

UN lVERSITY OF SANTO TOMAS~ FACULTY OF ClVIL LAW ••.

•

LEGAL ETHICS Attorneys in his practice oflaw (Pangan v. Atty.

giving his calling card with the name "Baligod, Gatdula, Tacardon, Dimallig and Celera" with office at Rm. 220 Mariwasa Bldg., 717 Aurora Blvd., Cubao, Quezon City, otherwise she will not be able to eject the defendant. Samonte told Atty, Gatdula that she could not decide because she was only representing her sister. To her consternation, the RTC Branch 220 issued an order granting the preliminary injunction as threatened by Atty. Gatduladespite the fact that the MTC, Branch 37 had issued an Order directing the execution of the Decision in a prior civil case.

Ramos, A.M. No.1053, September 7, 1979).

Rationale behind the rule that the name of deceased partner may still be used All the partners have, by their joint and several efforts over a period of years contributed to the goodwill attached to the firm name. In the case of a firm having widespread connections, this goodwill Is disturbed by a change in firm name every time a partner dies, and that reflects a loss in some degree of the goodwill to the building up of which the surviving partners have contributed their time, skill and labor through a period of years (CPR Annotated, Phil]A).

Samonte filed an administrative case for misconduct. Did Atty. Gatdula violate the Code of Conduct and Ethical Standards for the Public Officials and ·Employees?

NOTE: ,No name not belonging to any of the partners or associates may be used in the firm

name for any purpose. A: YES. The card clearly gives the impression that he is connected with the said law firm. The inclusion/retention of his name in the professional card constitutes an act of solicitation which violates Section 7 sub-par. (b) (2) ofR.A. 6713, otherwise known as "Code of Conduct and Ethlcal'Standards for the Public Officials and Employees" which declares it unlawful for a public official or employee to, among others: (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 officialfunctions (Samonte v. Gatdula, A.M.

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. The use of a cross after the name of the deceased partner is sufficient indication. It ts advisable though that the year of the death be also indicated. The use of the firm name of a foreign law firm is unethical {Pineda, 2009). RULE 3.03, CANON 3

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.

No. 99·1292, February 26, 1999). RULE 3.04, CANON 3

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.

Name of a partner in law firm should be· dropped if appointed as judge since he is 110 longer allowed to practice law (Pineda, 2009).

REASON: To prevent some lawyers from gaining an unfair advantage over others through the use of gimmickry, press agentry or other artificial means.

REASON: To prevent the law firm or partners

from making use of the name of the public official to attract business and to avoid suspicion of undue influence. Q: Samonte alleges that when she went-

I

Q: Fiscal Salva conducted the investigation

to

of al case concerning the killing of Monroy, in the session hall of the Municipal Court of Pasay City to accommodate the public and members of the press. He also told the press that "if you want to ask questions, I am allowing you to do so and the questions will be reproduced as my own", ls the act of Fiscal Salva unethical?

Branch 220, RTC QC to inquire about the reason for the issuance of the TRO, Atty. Rolando Gatdula (Clerk of Court) blamed her lawyer for writing the wrong address in the complaint for ejectmen. He told her that if she wanted the execution to proceed, she should change her lawyer and retain the law office of Atty. Gatdula, at the same time ( ...... )

\..,,:t

UN f VER SIT Y o F SANTO GOLDEN NOTES

2019

•

TO MAS

36

•

l

:; '

,l

DUTIES AND RESPONSIBILITIES A: YES, Fiscal Salva should be publicly censured for the uncalled for and wide publicity and sensationalism that he had given to and allowed in connection with his investigation, whatever be his motive, which is considered and found to be contempt of court (Cruz v. Salva, G.R. No. L-12871,July 25, 195~). · PARTICIPATION IN THE IMPROVEMENT . ·: AND l{EFORMS IN THE LEGAL SYSTEM. ·

OF A LAWYER CAt:JON 5

A lawyer shall keep abreast of legal developments, parttcipate 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.

0

•

l This duty carries with it the obligation to be well-informed of the existinglaws, and to keep abreast with legal developments, recent enactment and jurisprudence. It is imperative that they be conversant with the basic legal principles. Unless they faithfully comply with such duty, they may not be able to discharge competently and diligently their obligations as members of the Bar. Worse, they may become susceptible to committing mistakes (Dulalia Jr. v. Cruz, A.C. No, 6854, April 25, 2007, citing Santiago v. Rafanan, A.C. No. 6252, October 5, 2004).

CANON4

!

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 ofjustice.

,4

II

By reason of education and experience, lawyers are especially qualified to recognize deficiencies in the legal system and to initiate corrective measures therein. Thus, they should participate in proposing and supporting legislation and programs to improve the system, without regard to the general interests or desires of clients or former clients (Ethical Consideration 8-1, 1978, Model Code of Professional Responsibiluy, American Bar Association).

The latest circular of the Supreme Court provides for the mandatory attendance of all lawyers in the so-called "Mandatory Continuing Legal Education Program" of the iBP. For law practitioners, they have to comply with the 36 hours of mandatory legal education as a pre-condition to the non· revocation of license to practice law (Antiouiera, 1992).

Examples: 1. 2.

Presenting position papers or resolutions for the introduction of pertinent bills in Congress; or Petitions with the Supreme Court for the amendment of the Rules of Court.

Three-fold obligation of a lawyer under this canon owes it to'; himself to continue improving his knowledge of the laws; 2. He owes it to his profession to take an active interest in the maintenance of high standards of legal education: and 3. He owes it to the lay publicto make the law a part of their social consciousness (Pineda, 2009). 1.

Endorsement by a lawyer A lawyer may, with propriety, endorse a candidate and seek endorsement from other lawyers. A lawyer should not use or attempt to use the power or prestige of the judicial office to secure such endorsement. On the other hand, the lawyer whose endorsement is sought should have the courage and moral stamina to refuse the request for endorsement if he believes the candidate lacks the essential qualifications for the office or believes the opposing candidate is better qualified (ABA Opinion 189 (1938); Puna, 2009). · . · ' ·.

. LAWYERS IN THE GOVERNMEN1' AND . •,

EDUCATION PRO.GRAM'

. .

'·orscHARGE OF OFFICIAL TASkS

·.

CANON6

These canons shall apply to lawyers in government service in the discharge of their official tasks.

'PARTICIPATION IN THE LEGt.\Il .:

He

.

Lawyers employed in the government should be more sensitive in the performance of their

37

U NlVERSITV OF SANTO TOMAS~ FACULTY OF CIVIL LAW

•

LEGAL ETHICS professional obligations as their conduct is subject to constant scrutiny of the

All criminal actions either commenced by complaint or by informatlon shall be prosecuted under the direction and control of a public prosecutor. ln case of heavy work schedule of the public prosecutor or lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to end of the trial even in the absence of a public prosecutor, ·1 unless the authority is revoked or otherwise withdrawn (Sec. S, Rule 110, RRC as amended by A.M. No. 02-2-07-SC

public(Vitriolo v. Dasig, A.C. No. 4984, April 1, 2003). Q: Provincial Prosecutor Bonifacio refused

to represent the Municipality of San Vicente in a case for collection of taxes. He explained that he cannot handle the case with sincerity and Industry because he does not believe in the position taken by the municipality. Can Prosecutor Bonifacio be sanctioned administratively? (2006 Bar) A.: NO. A lawyer may refuse a case which he believes to be unmeritorious, because lt is "his 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 be honestly debatable under the law (Sec. 20(c), Rule 138). The Canons of Code of Professional Responsibfllty are applicable to government lawyers in the performance of their official tasks (Canon 6, CPR).

:1 ::

Restriction on lawyers who are also public officials and employees during their incumbency [PERU]

•

They must NOT:

1.

2.

A: The public prosecutor the trial of the criminal case despite the presence of a private prosecutor in order to see to it that the interest of the State is wellguarded and protected, should the private prosecutor be found lacking in competence in prosecuting the case. Moreover, the primary duty of a public prosecutor is not to convict but to see to it that justice is done (Rule 6.01, CPR). A private prosecutor would be naturally interested only in the conviction of the accused.

3.

4.

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; 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; 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 or classified information officially known to them by reason of their office and not available to the public.

Rule 6.01

vs. Rule 6.02

Unlike Rule 6.01, 6.02 is not limited to public prosecutors, or public lawyers engaged principally in crtminal.prosecutton cases. The restriction applies particularly to lawyers in government service, who are allowed by law to engage in private law practice, and those who,

Instance where a private prosecutor may appear fn behalf of the State even without the presence or supervision of a public prosecutor

' TOMAS

1

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.

. must be present at

OF SANTO NOTES

:l

1

Q: From the viewpoint of legal ethics, why should It be mandatory that the public prosecutor be present at the trial of a criminal case despite the presence of a private prosecutor? (2001 Bar)

GOLDEN

·:1

RULE 6.02, CANON 6

The primary duty of o. lawyer engaged in public prosecution ls not to convict but to see to it 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.

2019

l

effective May 1, 2002/

RULE 6.01, CANON 6

UNIVERSITY

'.J

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DUTIES AND RESPONSIBILITIES OF A LAWYER

~ fl fl

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1993, 2001 Bar)

if

il .I,i Ii I' 11 11

!!1, 1:

iJ I' r" It

within the scope of the . term "matter". However, this concern does not cast shadow in the case · at bar. The act of Mendoza in informing the Central Bank on the procedure on how to liquidate the GenBank is a different from the subject matter of the civil case about the sequestration of the shares of Tan et al. in Allied Bank. Consequently, the danger that confidential official information might be divulged is still nil, if not inexistent Their interests coincide instead of colliding (PCGG v. Sandiqanbayan, G.R. Nos. 151809-12, April 12, 2005).

RULE 6.03, CANON 6

A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service. (1992,

Ii

regulations or laws, or briefing abstract principles of law" are acts which do not fall

though prohibited from engaging in the practice of Jaw, have friends, former associates and relatives who are in the active practice of Jaw (CPR Annotated, Phil]A).

The restriction provided under the rule covers engagement or employment which means that he cannot accept any work or employment from anyone that will involve or relate to the matter in which he intervened as a public official, except on behalf of the body or authority which he served during his public employment (CPR Annotated, Phil]A).

Adverse-interest Conflict vs. CongruentinterestConflict

II

F

Ii

j:

I!

i

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ADVERSE-INTEREST · CONFLICTS

CONGRUENT-INTElrnST REPRESENTATION

. . · . . Exist where the matter in which the former government lawyer represents a client in private practice is substantially related to the matter that lawyer dealt wit~ while employed by the. government and th~ interests of the government and the interests of the current and former are adverse.

CONFLICTS The disqualification does not involve a conflict at all, because it prohibits the lawyer from representing a private practice client even if the interests of the former government client and the new client are entirely parallel ;

.

NOTE: Sec. 7(b) of R.A. 6713 prohibits former public official or employee for a period of 1 year after retirement or separation from office to practice his profession in connection with any matter before the office he used to be with. Q: Solicitor General Estelito Mendoza filed a petition with the CFI praying for the assistance and supervision of the court in the GenBank's liquidation. Mendoza gave advice on the procedure to liquidate the GenBank. Subsequently, President Aquino established the PCGG to recover the alleged Ill-gotten wealth of former President Marcos, his family and cronies. The PCGG filed with the Sandiganbayan a complaint for reversion, reconveyance, restitution, accounting and damages against Tan, et al. and issued several writs of sequestration on properties they allegedly acquired. Tan, et al. were represented by former SolGen Mendoza, who has then resumed his private practice of law. The PCGG filed motions to disqualify Mendoza as counsel for Tan, et al., alleging that then SolGen and counsel to Central Bank, "actively intervened" in the liquidation of GenBank, which was subsequently acquired by Tan, et al. Is Rule 6,03 of the CPR applicable to Mendoza?

thi

NOTE: "Congruent-interest representation conflict," unlike the "adverse-Interest conflict," is unique to former government lawyers(PCGG • v. Sandiganbayan, G.R. Nos. 151809-12. April 12, 2005). , DUTIES AND RESPONSIBILITIES OF A . LAWYER TO THE LEGAL PROFESSION CANON7

A lawyer shall at all times uphold the integrity and dignity of the legal profession and support the activities of the integratedbar

A! NO. The advice given by Mendoza on ·the procedure to liquidate the GenBank Is not the "matter" contemplated by Rule 6.03 of the CPR.

Integrated Bar of the Philippines ABA Formal Opinion No. 342 Is clear In stressing that the ''drafting, enforcing or

• , It is an official national body composed of all persons whose names now appear or may

interpreting government or agency procedures,

39 C:. , ...

UN JVERSITY OF SANTO TOMAS~ FA CUL TY OF CIVIL LAW •••

LEGAL ETHICS privilege be regulated to assure compliance with the lawyer's public responsibilities. Given existing bar conditions, the most efficient means of doing SQ is by integrating the Bar through a rule of court that requires all

hereafter be Included in the Roll of Attorneys of the Supreme Court(Sec. 1, Rule 139-A, RRC). Statutory Basis

lawyers to pay annual dues to the Integrated

R.A. 6397 (An Act Providing for the Integration of the Phfllpplne Bar, and Appropriating Funds Therefor}. The Supreme Court may adopt rules of court to effect the Integration of the Philippine Bar under such conditions as it shall see fit in order to raise the standards of the legal profession, improve the administration of justice and enable the bar to discharge its public responsibility more effectively(Sec. 1 RA 6397).

Bar (In the Matter c>fthe Jntegration of the Bar of the Philippines, 49 SCRA 22,January 9, 1973). Structure of the IBP Board

1

NOTE: The Integrated Bar is a state-organized

bar, to which every lawyer must belong, as distinguished from bar associations organized by lawyers themselves, where membership is voluntary. It is a national organization of lawyers created on 16 January 197~ under Rule 139-A of the Rules of Court, and constituted on 4 May 1973 into a body corporate by PD No. 181. Integration

~

•

Term of members of the IBP Board of the Bar The Governors shall hold office for a term of two {2) years from July 1 immediately following their election to June 30 of their second year in office and until their successors shall have been duly chosen and qualified (Sec.

The Integration of the Philippine Bar means the official unification of the entire lawyer population, and this requires membership and financial support of every attorney as condition sine qua non to the practice of Jaw and the retention of his name in the Roll of Attorneys of the Supreme Court{Pineda, 1999). Fundamental

Nine (9) Governors shall be elected by the House of Delegates from the nine (9) Regions on the representation basis of one Governor from each Region. Each Governor shall be chosen from a list of nominees submitted by the Delegates from the Region, provided that not more than one (1) nominee shall come from any Chapter. The President and the Executive Vice President, if chosen by the Governors from outside of themselves as provided in Section 7 of this Rule, shall ipso facto become members of the Board (Sec. 6, Rule 139·A, RRCJ.

38, Art. VI, IBP By-Laws).

Principle of Rotation

purposes of the IBP

Pursuant to the principle of rotation, the governorshipof a region shall rotate once in as many terms as the number of chapters there are in the region, to give every chapter a chance to represent the region in the Board of Governors. Thus, in a region composed of 5 chapters, each chapter is entitled to the governorship once \in every S terms, or once every ten {10) years, since a term is two (2) years (Atty. Magsino: et al. v. Atty. Vinluan, A.M.

To elevate the standards of the legal profession; 2. Improve the administration of justice; and 3. Enable the Bar to discharge its public responsibility more effectively (Sec. 2, Rule 1.

139-A, RRC).

NOT.E: The Philippines is divided into nine (9) Regions of the Integrated Bar, with a Chapter organized in every province. Each Chapter shall have its own local government as provided for by uniform rules to be prescribed by the Board of Governors and approved by the Supreme Court (Secs. 3 and 4, Rule 139-A, RRC). Constitutionality

No. 09··5-2-SC, December 14, 2010). NOTE: The principle on rotation shall be strictly implemented so that all prior elections for governor in the region shall be reckoned with or considered in determining who should be the governor to be selected from the different chapters to represent the region in the Board of Governors {Bar Matter No. 586, May 16, 1991).

of the IBP integration

The practice of law is not a vested right but a privilege clothed with public interest Hence, it is fair and just that the exercise of that UNIVERSITY OF SANTO 2019 GOLDEN NOTES

TOMAS

Kinds ofrotatioil

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DUTIES AND RESPONSIBILITIES 1.

2.

IBP officers

Rotation by pre-ordained sequence effected by the observance of the sequence of the service of the chapters in the first cycle, which is predictable. Rotation by exclusion - effected by the exclusion of a chapter who had previously served until all chapters have taken their turns to serve. It Is not predictable as each chapter will have the chance to vie for the right to serve, but will have no right to a re-election as it is debarred from serving again until the full cycle is completed (In The Matter of the Brewing Controversies in the Elections of the Integrated Bar of the Philippines, A.M. No. 09-S-2-SC, December 04, 2012).

The Integrated Bar shall have a/an:

•

President; Executive Vice President who shall be chosen by the Governors immediately after the latter's election; either from among themselves or from other members of the Integrated Bar, by the vote of at least five .Governors. Each of the regional members of the Board shall be ex officio Vice President for the Region which he represents; 3. Secretary; 4. Treasurer; and S. Such other officers and employees as may be required by the Board of Governors, to be appointed by }he President with the consent of the Board, and to hold office at the pleasure of the Board or for such term as it may fix. Said- officers and employees need not be members of the Integrated Bar (Sec. 7, Rule 139-A, RRC). 1. 2.

NOTE: In one case, the Supreme Court held that rotation by exclusion shall be adopted

since the elections would be more genuine as the opportunity to serve as Governor at any time is once again open to all chapters, unless, of course, a chapter has already served in the new cycle. While predictability is not altogether avoided, as in the case where only one chapter remains in the cycle, still, as previously noted by the Court "the rotation rule should be applied in harmony with, and not in derogation of, the sovereign will of the electorate as expressed through the ballot." (In

NOTE: No lawyer holding an elective, judicial,

quasi-judicial or prosecutory office in the Government or any political subdivision or instrumentality thereof shall be eligible for election or appointment to any position in the Integrated Bar or any Chapter thereof. A Delegate, Governor, officer or employee of the Integrated Bar, or an officer or employee of any Chapter thereof shall be considered ipso facto resigned from his position as of the moment he files his certificate of candidacy for any elective public office or accepts appointment to any judicial, quasi-judicial, or prosecutory office in the Government or any political subdivision or instrumentality thereof (Sec. 13, Rule 139-A, RRC).

The Matter of the Brewing Controversies Jn the Elections of the Integrated Bar of the Philippines, A.M. No. 09·5·2-SC, December 04, 2012). Transferring to another IBP Chapter ls not a ground for disqualification to run as IBP Governor Transferring to another IBP Chapter is not a ground for disqualification for the post of IBP Governor as the same is allowed under Section 19 of the IBP By-Laws with the qualification only that the transfer be made not less than three months immediately preceding any chapter election (Velez v. De Vera, A.C. No. 6697, )u{v 25, 2006).

Term of office;rs

Board meetings The Board shall meet regularly once every three months, on such date and at such time and place as it shall designate. A majority of all the members of the Board shall constitute a quorum to do business. Special meetings may be called by the President or by five members of the Board (Sec. 6, Rule 139-A, RRC).

OF A LAWYER

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41

The President and the Executive Vice President shall hold office for a term of two years from July 1 following their election until June 30 of their second year in office and until their successors shall have been duly chosen and qualified. In the event the President is absent or unable to act, his functions and duties shall be performed by the Executive Vice President, and in the event of the death, resignation, or removal of the President, the Executive Vice President shall serve as Acting President for the unexpired portion of the term. In the event of the death, resignation, removal or disability of both the President.and the Executive Vice UNIVERSITY OF1SANTO TOMAS~.· FA CUI.TYi OF CrVIL LAW •••

•

LEGAL ETHICS President, the Board of Governors shall elect an Acting President to hold office for the unexpired portion of the term or during the period of disability. Unless otherwise provided in these By-Laws, all other officers and employees appointed by the President with the consent of the Board shall hold office at the pleasure of the Board or for such term as the Board may fix (Sec. 49, Article Vil, IBP By-Laws).

more than one page of a legal size sheet of paper; or causing the distribution of such statement to be done by persons other than those authorized by the officer presiding at the elections; 3. Campaigning for or against any candidate, while holding an elective, judicial, quasi· judicial or prosecutory office in the Government or any political subdivision, agency or instrumentality thereof; 4. Formation of tickets, single slates, or combinations of candidates as well as the advertising thereof; and 5. For the purpose of inducing or influencing a member to withhold his vote, or to vote for or against a candidate:

Qualificationsof a Regional IBP Governor He is a member in good standing in the IBP; 2. He is included in the voters list of his chapter or he is not disqualified by the Integration Rule, by the By-Laws of the Integrated Bar, or by the By-Laws of the Chapter to which he belongs; 3. He does not belong to a chapter from which a regional governor has already been elected, unless the election is the start of a new season or cycle; and 4. He is not in the government service (In Re: 1.

a. b.

c.

Petition to disqualify Atty. De Vera, A.C. No. 6052, December 11, 2003). NOTE: Moral fitness ls not an qualification in the IBP by-laws.

of the Inquiry into of the Integrated Bar of the Philippines, A.M. No. 491, October 6, 1989).

explicit

Q: In the election of national officers of the IBP, the Supreme Court received reports of electioneering arid extravagance that characterized the campaign of the three(3) candidates for President of the IBP. It is alleged that they used government planes, gave free accommodations to voters to expensive hotels and there has been intervention of public officials to influence the voting. Is there a violation of the IBP bylaws? Is there sufficient ground for the Supreme Court to suspend the oath taking of the officials?

1.

In the event the President is absent or unable to act, his duties shall be performed by the ExecutiveVice President 2. In the event of the death, resignation,, or removal of the President, the Executive Vice President shall serve as Acting President during the remainder of the term of the office thus vacated. 3. In the event of the death, resignation, removal or disability of both the President and the Executive Vice President, the Board of Governors shall elect an Acting President to hold office until the next succeeding election or during the period of ;disability (Sec. 8, Rule 139-A, RRCJ.

A: YES. The candidates for the national positions in the IBP conducted their campaign preparatory to the election on June 3, 1989 in violation of Section 14 of the IBP by-laws and the Rules of Court, that the IBP shall be strictly non-political. Also the ethics of the legal profession imposed on all lawyers has been violated corollary to their obligation to obey and uphold the constitution and the laws, the duty to promote respect for law and legal processes and to abstain activities aimed at the defiance of the law or at lessening confidence in the legal system (In Re: IBP Elections, B.M.

NOTE:Serves only the unexpired term. Prohibited acts and practices relative to the elections of IBP officers Distribution, except on election day, of election campaign materials; 2. Distribution, on election day, of election campaign materials other than a statement of the bio data of the candidate on not 1.

\.Y

UNIVERSITY OF SANTO TOMAS GOLDEN NOTES

2019

•

laws; In the Matter the 1989 Elections

Vacancy occurring in the IBP presidency

......~ {g)

Payment of the dues or other indebtedness of any member; Giving of food, drink, entertainment, transportation or any article of value, or any similar consideration to any person; Making a promise or causing an expenditure to be made, offered or promise to any person (Sec. 4, IBP By-

42

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DUTIES AND RESPONSIBILITIES 491, October 6, 1989). ..

MEMBERSHIP AND DUES

·

Q: The Integrated Bar of the Philippines adopted a resolution recommending to the Court the removal of the name Marcial A. Edillon, a duly licensed practicing attorney, from its Roll of Attorneys for stubborn refusal to pay his membership dues to the IBP since its constitution, notwithstanding due notice, Is Edillon correct in his objection that the Court is without power to compel him to become a member of the IBP, · hence, Sec. 1 of Rule 139-A of the Rules of Court is unconstitutional for it infringes on his constitutional right of freedom to associate (and not to associate)?

Membership dues Every member of the Integrated Bar shall pay such annual dues as the Board of Governors shall determine with the approval of the Supreme Court. A fixed sum equivalent to ten percent (10%) of the collections from each Chapter shall be set aside as a Welfare Fund for disabled members of the Chapter and the compulsory heirs of deceased members thereof (Sec. 9, Rule 139-A, RRC). NOTE: Membership dues are not prohibited by the Constitution. The fee is imposed as a regulatory measure, designed to raise funds for carrying out the purposes and objectives of the integration (In the Matter of IBP Membership dues delinquency of Atty. Marcia/Edi/Ion, A.M. No.1928, August 3, 1978).

Assuming that the questioned provision does in a sense compel a lawyer to be a member of the Integrated Bar, such compulsion is justified as an exercise of the police power of the State (In the Matter of IBP Membership Dues Delinquency of Atty. Edillon, A.C. No. 1928, December 19, 1980)

Effect of non-payment of dues Default in the payment of annual dues for six (6) months shall warrant suspension of membership in the Integrated Bar, and default in such payment for one (1) year shall be a ground for the removal of the name of the delinquent member from the Roll of Attorneys (Sec. 10, Rule 139-A, RRC) subject to the requirement of due process (Funa, 2009)

NOTE: A lawyer does not automatically become a member of the IBP chapter where he resides or works after becoming a full-fledged member of the Bar. He has the discretion to choose the IBP Chapter he wants to join (Garcia v. De Vera, A.C. 6052, December 11, 2003).

for

voluntarytermination

•

NOTE: Re-instatement may be 'made by the Court in accordance with rules and regulations prescribed by the Board of Governors and approved by the Court (Sec. 11, Rule 139-A, RRC).

A: NO. To compel a member of the Integrated Bar is not violative of his constitutional freedom to associate. Integration does not make a lawyer a member of any group of which he is not already a member. He became a member of the Bar when he passed the Bar Examinations. All that integration does is to provide an official national organization for the well-defined but unorganized group of which every lawyer is already a member.

Procedure membership

LAWYER

A member may terminate his membership by filing a written notice to that effect with the Secretary of the Integrated Bar, who shall immediately bring the matter to the attention of the Supreme Court. Forthwith he shall cease to be a member and his name shall be stricken by the Court from the Roll of Attorneys (Sec.11, Rule 139-A, RRC). n

e

Unless he otherwise registers his preference for a particular Chapter, a lawyer shall be considered a member of the Chapter of the province, city, political subdivision or area where his office is or, in the absence thereof, his residence is located. In no case shall any lawyer be a member of more than one Chapter (Sec. 4, Rule 139-A, RRCJ.

OF A

Q: Atty. Llamas, for a number of years, has

not indicated the proper PTR and IBP O.R. Nos. and data in his pleadings. He only indicated "IBP Rlzal: 259060" but he has been using this for least 3 years. Atty. Llamas averred that he is only engaged in a "limited" practice of law and under .R.A, 7432, as a senior citizen, he is exempt from payment of income taxes, including the payment of membership dues. Is Atty, Llamas correct?

at

'

of

43

UNIVERSITY OF SA NT O TOMAS~ FACULTY OF CIVIL LAW ..,.

•

LEGAL ETHICS A: NO, Rule 139·A requires that every member of the Integrated Bar shall pay annual dues and default thereof shall warrant the appropriate penalties. It does not matter whether or not Atty. Llamas is only engaged in "limited" practice of law. Moreover, the exemption invoked by Atty. Llamas does not Include exemption from payment of membership or association dues (Santos Jr. v. Atty. Llamas, A.C. No. 4749, January 20, 2000). ·

(Letter of Atty. Arevalo, Jr. Requesting Exemption from Payment of Dues, B.M. No. 1370, May 9, 2005). No retirement in tile IBP There is no such thing as retirement in the IBP as understood in labor law. A lawyer, however, may terminate his bar membership after filing the required verified notice of termination with the Secretary of the Integrated Bar (In Re: Atty. Jose Principe, Bar Matter No. 543, September 20, 1990).

NOTE: R.A. 7432 providing 20% discount to Senior Citizens DOES NOT apply to IBP Dues (Santos Jr. v. At~. Llamas, A.C. No. 4749, January 20, 2000).

UPHOLDING THE DIGNITY.AND INTEGRITY . . · . OF THE PROFESSfON. . · .

Q: Atty. Arevalo sought exemption from payment of IBP dues for the alleged unpaid accountability for the years 1977-2005: He alleged that after being admitted to the Philippine Bar in 1961, he became part of the Philippine Civil Service then migrated to, and worked in the USA from December 1986 until his retirement in 2003. He maintained that he cannot be assessed IBP dues for the years that he was working in the Philippine Civil Service since the Civil Service Jaw prohibits the practice of one's profession while in government service, and neither can he be assessed for the years when he was working in the USA. Is Atty. Arevalo entitled to exemption from payment of hls dues during the time that he was inactive in the practice of law?

Q: Dongga-as engaged the law firm of Atty. Cruz-Angeles to handle the annulment of his marriage with his wife, Mutya. In connection therewith, Atty. Cruz-Angeles was paid the aggregate sum of P350,000 representing legaf fees. Dongga-as constantly followed-up his case. However, despite the passage more than five (5) months from the engagement, Atty. Cruz· Angeles could not present any petition and instead, offered excuses for- the delay. They failed to file the appropriate pleading before the proper court and could not even show a finished draft of such pleading. Moreover, Atty. Cruz-Angeles misrepresented that the delay in the filing . of petition because they were still looking • for a "friendly" court, judge, and prosecutor. Is Atty. Cruz-Angeles guilty of any ethical misconduct?

of

A: NO. The Integration of the Philippine Bar means the official unification of the entire lawyer population. This requires 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 Supreme Court.

A: YES. Once a lawyer takes up the cause of his client, he is duty-bound toserve the latter with competence, and to attend to such client's cause with diligence, care, anddevot!on whether he accepts it for a fee or for free. He owes fidelity to such cause and must alwaysbe mindful of the trust and confidence reposed upon him. Therefore, a lawyer's neglect of a Jegalmatter entrusted to him by his client constitutes inexcusable negligence for which he must be heldadministratively liable, as in this case. As members of the Bar, respondents should not perform acts that would tend to undermine and/or denigrate the integrity of the courts, such as insinuating that they can find a "friendly" court and judge that will ensure a favorable ruling in complainant's annulment case. It is their sworn duty as lawyers and officers of the court to uphold the dignity and authority ofthe courts. Respect for

Payment of dues is a necessary consequence of membership in the IBP, of which no one is exempt, This means that the compulsory nature of payment of dues subsists- for as long as one's membership in the IBP remains regardless of the lack of practice of, or the type of practice, the member is engaged in. There is nothing in the law or rules which allow exemption from payment 6f membership dues (even if the lawyer is staying abroad). He could have informed the Secretary of the Integrated Bar of his intention to stay abroad before, he left In such case, his membership in the IBP could have been terminated and his obligation to pay dues could have been discontinued UNIVERSITY OF SANTO 2019 GOLDEN NotEs I

TOMAS

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44

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DUTIES AND RESPONSIBILITIES

OF A LAWYER

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the courts guarantees the stability of the judicial institution. Without thisguarantee, the institution would be resting on shaky foundations. In this case, respondents compromised the Integrity not only of the judiciary, but also of the national prosecutorial service, by insinuating that they can influence a court, judge, and prosecutor to cooperate with them to ensure the annulment of complainant's

·Effect of concealment of a crime which does not involve moral turpitude ·

marriage(Dongg_a-as v. Ato,. Cruz-Angeles et. al., A.C. No. 11113, August 9, 2016, PERLASBERNABEJ.

1975).

•'

Concealment will be taken against him. It is the fact of concealment and not the commission of the crime itself that makes him morally unfit to become a lawyer. When he made concealment he perpetrated perjury (In re:

VictorinoLanuevo, A.M. No. 1162, August 29, RULE 7.02, CANON 7

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. A

RULE 7.01, CANON 7 A lawyer knowingly

shall be answerable for making a false statement or suppressing a material fact in connection with his application for admission to the bar.

The rationale behind the rule goes beyond the personal responsibility to be upright and honest. It further extends to the lawyer's responsibility to uphold the integrity and dignity of the profession, by not blindly issuing certifications in support of applications for admission to the bar of persons known to him or. her to have questionable character, inadequate education or other relevant attributes not consistent with any or all of the requirements for admission (CPR Annotated,

The concealment of an attorney in his application to take the bar exams of the fact that he had been charged with or indicted for an alleged crime, is ground for revocation of his license to practice law (In re: VictorinoLanuevo, A.M. No. 1162, August 29, 1975).

Honest mistake as excuse in making false statement

PhilJAJ. RULE 7.03, CANON 7

An honest mistake in making false statement may be a valid excuse but the burden of proof lies on the one who alleges it

a fact or information in the application, the

lawyer shall not engage in a 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.

suppression must be:

(W04Bar)

1. Deliberately or knowingly made; and 2. The fact or information suppressed must be material (CPR Annotated, Phil}A).

NOTE:A member of the Bar and officer of the court is not only required to refrain from adulterous relationships or the keeping of mistresses but must also so behave himself as to avoid scandalizing the public by creating the belief that he is flouting those moral standards

A

On the other hand, to be liable for suppressing

Discovery of False statements or Supression of Material Fact in the application for admission to the Bar 1.

(Zaguirre v. Castillo, A.C. No. 4921, March 6, 2003).

Before the candidate could take the bar examinations- he will be denied permission

Q: Atty. Perenia got married in 2005. Then

he met another woman, Helen. They fell in love and cohabitated. Atty, Perenia would ' even bring Helen along to social functions and introduce her as his second wife. Rule on the conduct of Atty. Perenia.

to take the examinations. 2.

After the candidate had passed the examinations but before having been taken his oath- he will not be allowed to take his

3.

After the candidate had taken his oath as a

oath as a lawyer. lawyer· his name will be stricken from the Roll of Attorneys.

•

A: ltviolates Rule 7.03 of CPR. Shamelessly flaunting his mistress constitutes an act which embarrasses and discredits the law profession

45

UN lVERSITV OF SANTO TOMAS¢ FACULTY OF CtVIL LAW

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LEGAL ETHICS

- ===========:::!========;::::======================-husband but no legal action was taken. He then borrowed 4,000 from Milagros. He was also permitted to stay in the house of Milagros for two (2) weeks but he prolonged his stay to a month and reneged on his promise to pay. Atty. Capito continued to borrow money from her and the debt grew to P16,000. When Milagros finally met him to collect the debt, Atty. Capito, in the presence of several others, told her "Eh kung sabihin ko na sugar mommy kita". Rule on the conduct of Atty. Capito. · q

since it is his duty and obligation to uphold the dignity and integrity of the profession. The actuation of Atty. Perenia is contrary to good morals.While It has been held in disbarment cases that the mere fact of sexual relations between two unmarried adults is not sufficient to warrant administrative sanction for such illicit behavior, it is not so with respect to betrayals of the marital vow of fidelity. Even if not all forms of extra-marital relations are punishable under penal law, sexual relations outside marriage is considered disgraceful and immoral as it manifests deliberate disregard of the sanctity of marriage and the marital vows protected by the Constitution and affirmed by our Jaws (Vitug v. Rancal, A.C. No. 6313, September 7, 2006).

A: The respondent is guilty of gross discourtesy amountihg to conduct unbecoming of a court employee. By such violation, respondent failed to live up to his oath of office as member of the Integrated Bar of the Philippines and violated Rule 7.03 and Rule 8.01 of the Code of Professional Responsibility. He should not use abusive, offensive, scandalous, menacing and improper language. Their every act or word should be marked by prudence, restraint, courtesy and dignity (Re: Complaints of Mrs. Milagros Lee & Samantha Lee against Atty. Gil Luisito R. Capito, A.M. No. 2008-19-SC, August 18, 2010).

Q: Atty. Kurlpot was one of Town Bank's valued clients. In recognition of his loyalty to the bank, he was issued a gold credit card with a credit limit of P2SO,OOO.OO. After two months, Atty. Kuripot exceeded his credit limit, and refused to pay the monthly charges as they fell due. Aside from a collection suit, Town Bank also filed a disbarment case against Atty. Kuripot, In his comment on the disbarment case, Atty. Kurlpot insisted that he did not violate the Code of Professional Responsibility since his obligation to the bank was personal in nature and had no relation 'to his; being a lawyer. Is Atty, Kuripot correct?- Explain your answer. (2005 Bar)

Q: Ricafort filed a complaint for disbarment

against Atty. Medina. Ricafort alleged that his tricycle sideswiped Atty. Medina's car along Sarvida Street in Surigao City. Atty. Medina then alighted from his car and confronted Ricafort. The latter allegedly snapped at him, saying: "Do you not know me?" and proceeded to slap him, and then left. Should Atty. Medina be held administratively liable?

A: NO. Atty. Kuripot is not correct Section 7.03 of the Code of Professional Responsibility provides that "a lawyer shall not engage in conduct that adversely affects 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."

A: YES. Good character is a continuing qualification for lawyers. The Court has the power to impose disciplinary sanctions to lawyers who commit acts of misconduct in either a public or private capacity if the acts show them unworthy to remain officers of the court. Canon 7, Rule 7.03 of the Code of Professional Responsibility provides that "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 professionBy itself, the act of humiliating another in public by slapping him or her on the face hints of a character that disregards the human dignity of another. Atty. Medina's question tci; Ricafort confirms such character and his potential to abuse the

Q: Should Atty, Kurlpot

should be held administratively liable for his refusal to settle his credit card blll.1 (2005 Bar) A: He may NOT be held administratively liable. The Supreme Court has held that it does not t.ake original jurisdiction of complaints for collection of debts. The creditor's course of action is civil, not administrative in nature and proper reliefs may be obtained from the regular courts {Litigio v. Dicon, A.M. No. MTJ-93· 806,July 13, 1995). Q: Atty. Capito was supposed to represent Milagros in a claim for support against her UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTES

46

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·-·~--

.·~r .· .

-===D=UT==IE=S=A=N=D=R=E=S=P:O:.N:S:l:cB:JLIT=l=E=S=O=F=A=LA==WY=E=R===~ · · .. profeSsiOli as a tool for bullying, harassment, and discrimination. His act discredits the legal profession by perpetuating a stereotype that is unreflective of the nobility of the profession

Atty. Balbin also threatened to publicize

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:;)

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<1 i

.i

such suits in order to besmirch and/ or destroy Atty. Rogue's name and reputation, Should Atty. Balbin be held administratively liable?

(Ricafort v. Medina, A.C. No. 5179, May 31,

2016). A: YES. Atty. Balbin's underhanded tactics against Atty. Roque were in violation of Canon 8 of the CPR. Instead of availing of remedies to contest the ruling adverse to his client, Atty. Balbin resorted to personal attacks against the opposing litigant's counsel. Thus, it appears that Atty. Balbin's acts of repeatedly Intimidating, harassing, and blackmailing Atty. Roque with purported administrative and criminal cases and prejudicial media exposures were performed as a tool to return the inconvenience suffered by his client His actions demonstrated a misuse of the legal processes available to him and his client, especially considering that the aim of every lawsuit should be to render justice to the parties according to law, not to harass them. The foregoing showed Atty. Balbin's lack of respect and despicable behavior towards a colleague in the legal profession, and constituted conduct unbecoming of a member thereof (At~. Roque, v. Atty. Balbin, A.C. No.

Defense of In Par/ Delicto is NOT a valid in a Disbarment Proceeding In a disbarment proceeding, it is immaterial that the complainant is in pari 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 courts (Mortel v. Aspiras, A.M. No.145, December 28, 1956).

COURTESY, 'FAIRNESS AND CANDOR . ·.TOWARDS PROFESSIONAL COLLEAGUES CANONS A lawyer shall conduct himself with courtesy, fairness and candor towards his professional colleagues, and shall avoid harassing tactics against opposing counsel.

fr:t

7088, December A, 2018,,; PERLAS-BERNABE).

The lawyer's arguments, whether written or oral, should be gracious to both the court and opposing counsel and be of such words as may be properly addressed by one gentleman to another (National Security Co. v. Jarvis, 278 U.S.

\

Q: Atty. Ferrer filed a'reply with opposition

to motion to dtsmtss that contained abusive, offensive, and improper language which insinuated that Atty. Barandon presented a falsified document in court. He also filed a fabricated charge against Atty, Barandon in another case for alleged falsification of public document. Furthermore, at the courtroom ofMTC Daet before the st.art of hearing, Atty. Ferrer, evidently drunk, threatened Atty. Barandon. Is he guilty of violation of the Code of Professional Responsibility?

610).

A lawyer's language should be forceful but dignified, emphatic but respectful as befitting an advocate and in keeping with the dignity of the legal profession (In Re: Climaco, A.C. No. 134-J,january 21, 1974).

Q: In an administrative

case, Atty. Roque alleged that he was the plaintiffs counsel in a civil case before the METC. Shortly after securing a favorable judgment for his client, Atty. Balbin-as counsel for the defendant, and on appeal-started intimidating, harassing, blackmailing, and maliciously threatening Atty. Roque into withdrawing the case filed by his client, According to Atty. Roque, Atty. Balbin would make various telephone calls and send text messages and e-mails not just to him, but also to his friends and other clients, threatening to file disbarment and/or criminal suits against him, Further, and in view of Atty. Roque's "high profile" stature,

A: YES. Canon 8 of the Code of Professional Responsibility commands all lawyers to conduct themselves with courtesy, fairness and candor towards their fellow lawyers and avoid ~ harassing tactics against opposing counsel.Atty. Ferrer's actions do not measure up to this Canon. Moreover, Atty. Ferrer could have aired his charge of falsification in a proper forum and without using offensive and abusive language against a fellow lawyer. The Court has constantly reminded lawyers to use dignified language in their pleadings despite the adversarial nature of our legal system

47

U NlVF.RSITY OF SANTO TOMAS FACULTY OF CIVIL I.AW

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¢;tt ·y

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LEGAL ETHICS him and dissuading Marcelo from retaining his services as counsel, claiming that he was "polpol" and that he charged exorbitant fees, among others, Records show that Atty. Alles even prepared a Notice to Terminate Services of Couns.el In the complaint for damages as well as a Compromise Agreement, both of which he sent to Marcelo for his signature. Atty. Ailes contends chat the text messages were "brother-to-brother communication" and were uttered in good faith. Is Atty. Ailes' defense meritorious?

(Barandon v. Ferrer, Sr; A.C. No. 5768, March 26, 2010). Q: Atty, Y, In his motion for reconsideration of the Declsion rendered by the NLRC, alleged that there was connivance of the NLRC Commissioners with Atty. X for monetary considerations in arriving at the questioned decision. He Insulted the Commissioner for their ineptness in appreciating the fact as borne by the evidence presented. Atty. X files an administrative complaint against Atty. Y for using abusive language. Atty. Y posits that as a lawyer for the down-trodden laborers, he is entitled to express his righteous anger against the Commissioners for having cheated them; that his allegations· in the motion for reconsideration are absolutely privileged; and that proscription against the use of abusive language does not cover pleadings filed with the NLRC, as it is not a court, nor are any of its Commissioners Justices or Judges. Is Atty. Y administratively liable under the Code of Professional Responsibility? Explain. (2010 Bar)

A: NO. Atty. Ailes violated the entire Canon 8 of the CPR. It is inconsequential that the statements were merely relayed to Atty. Ailes' brother in private. As a member of the bar, Atty. Ailes should have been more circumspect in his words, being fully aware that they pertain to another lawyer to whom fairness as well as candor is owed. It was highly improper for Atty. Ailes to interfere and insult Atty. Nobleto his client (Atty. Noble Ill v. Atty. Ailes, A.C. No.10628,Ju/y 1, 2015, PERLAS-BERNABE).

Instances of Lack of Candor (Honesty) 1.

A: YES. Atty. Y has clearly violated Canons 8 and 11 of the Code of Professional Responsibility and is administratively liable, A lawyer shall not in his professional dealings, use language which is abusive, offensive or otherwise improper (Rule 8.01, Code of Professional Responsibility). In the case of

2.

Johnny Ng v. Atty. Alar (A.C. No. 7252, November 22, 2006), it was held that the argument that the NLRC is not a court. is unavailing. The lawyer remains a member of the Bar, an "oathbound servant of the law, whose first duty is not to his client but to the administration of justice and whose conduct ought to be and must be scrupulously observant of the law and ethics."

3. 4.

The argument that labor practitioners are entitled to some latitude of righteous anger is unavailing. It does not deter the Court from exercising its supervisory authority over lawyers who misbehave or fail to live up to that standard expected of them as members of the

Misquoting the contents of paper, testimony of a witness, the language or the argument of opposing counsel; or the language of the decision or a textbook; With knowledge of its invalidity, to cite as authority a decision that has been overruled or a statute that has been repealed, or in the argument to assert as a fact that which has not been proved, or in those jurisdictions where the side has the opening and closing arguments to mislead his opponent by concealing or withholding positions in his opening argument upon which his side then intends to rely; Offering evidence which he knows the court should reject: or Introducing intQ an argument, addressed to the court, ;:remarks or statements intended to influence the bystanders (Pineda, 2009), RULE 8.01, CANON 8

A lawyer shall not; in his professional dealings, use language which is abusive, offensive or otherwise improper.

Sar. Q: Atty. Orlando Ailes filed a complaint for

Instances of disrespectfullanguage

damages against his own brother, Marcelo, whom Atty. Noble represented. One day, Atty. Noble discovered that, through text messages, Atty. Alles had been maligning

flJ-·) \,,.,:"<'

UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTES

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1.

48

Categorizes the Supreme Court decision as false, erroneous and illegal (Suo v. Claribel,

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DUTIES AND RESPONSIBILITIES OF A LAWYER

Nos. 79690-707, February 1, 1989); Calling an adverse counsel as "bobo" or

the tendency Is to create distrust and destroy the confidence of the people in their courts. A criticism after a An insult hurled to the case has been court, even after a case disposed of can no is decided, can under longer influence the no circumstance be v. court, and on that justified(llusorio G.R. No. ground it does not llusorio, 157384,June 5, 2009). constitute contempt(llusorio v. llusorio, G.R. No.

using the word "ay que bobo" in reference to the manner of offering evidence (Castillo

157384, 2009).

A.M. No. 01-1-15-RTC,July 10, 2003):

2.

Description of judges attitude as "unjust, hostile; vindictive and dangerous." (Cornejo v. Jud,ge

Tan, G.R. No. l-22171

March 23, 1950); 3.

Stating that "[ustlce is blind and also deaf and dumb." (In Re: Almacen, G.R. No. L· 27654, February 18, 1970);

4. Attributing to the Supreme Court acts of dismissing judges "without rhyme and reason" and disbarring lawyers "without due process." (Zaldivar v. Gonzales, C.R. 5.

June

v. Padilla tr. A.M. No. 2339, February 1984);

6. Calling

an

adverse

counsel

·!

as

"po/,pol"(Noble Ill v. Atty. Ailes, A.C. No. 10628, July 1, 2015, PERLAS-BERNABE); and

Q: A complaint was filed against Atty. Zaide

for use of intemperate, offensive and abusive language. A):ty. Zaide referred to 1· the complainant as a "notorious extortionist" and to his opposing counsel as someone suffering from "serious mental incompetence" in one of his pleadings. Did the act of Atty. Zaide violate the Code of Professional Responsibility?

7. Any other analogous cases. NOTE: Although the Canon that the Rule implements pertains to a lawyer's dealings with his fellow lawyers, the Rule is generally worded to apply to anyone in the wider context of a lawyer's professional dealings, including his or her clients and witnesses (CPR

A: YES. More specifically, Canon 8.01 of the CPR. The act shows Atty. Zaide's lack of restraint in the use and choice of his words • a conduct unbecoming of an officer of the court. While a lawyer is entitled to present his case with vigor and courage, such enthusiasm does not justify the use of offensive and abusive language. Language abounds with countless possibilities for one to be emphatic but respectful, convincing but not derogatory, and illuminating but not offensive (Cimeno v. Zatde, A.C. No.10303, April 22, 2015).

Annotated, Phil]A). Criticism 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; but to hurl the false charge that the Supreme Court has been committing deliberately so many blunders and injustices would tend necessarily to undermine the confidence of the people in the honesty and integrity of its members, and consequently to lower or degrade the administration of justice, and It constitutes contempt (llusorio v. llusorio, G.R. No. 157384, June 5, 2009).

Criticism vs. Insult : . .'. · CRITlCISM Confined to the facts and is based on the decisions of the court.

'---~~--~~~---

.. l'NSULT .. Pass beyond that line and charge that judicial conduct was influenced by improper, corrupt, or selfish motives, or that such conduct was affected by political prejudice or interest.

5,

Q: In pleadings and motions filed by Tiongco, he described Atty. Deguma as a l.ove crazed Apache, a horned spinster, man· hungry virago and female bull of an Amazon who would stop at nothing to injure ~ defendant if only to please and attract her client. Tiongco claims that Atty. Deguma, as a lawyer in the PAO, is using the PAO as a marriage bureau for her benefit. Is the language employed by Tiongco improper and unethical?

•

A: YES. The Code of Professional Responsibility provides in Canon 8 that a lawyer shall conduct himself with courtesy, fairness, and candor toward his professional colleagues, and shall avoid harassing tactics against opposing

49

u NrVERSITY

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NTO TOMAS¢ FA CULTY10F CIVIL LAW ....

LEGAL ETHICS counsel. Rule 8.01 provides that a lawyer shall

respondent disregarded the fact that, as a lawyer, he is bound to observe proper decorum at all times, be it in his public or private life. He overlooked the fact that he must behave in a manner befitting of an officer of the court, that is, respectful, firm, and decent. Instead, he acted inappropriately and rudely; he used words unbecoming of an officer of the law, and conducted himself in an aggressive way by hurling insults and maligning complainant's and BMGI's reputation (Belo-Henares v. Atty. Guevarra, A.C. No. 11394, December 1, 2016,

not In his professional dealings, use language which is abusive, offensive or otherwise improper while Rule 11.03 provides that a lawyer shall abstain from scandalous, offensive or menacing language before the courts. Thus, Tiongco is wanted accordingly [TiongcoYared v. Jlarde, G.R. No.114732,August 1, 2000). NOTE: Lack of want of Intention is no excuse

for the disrespectful language employed. Counsel cannot escape responsibility by claiming that his words did not mean what any reader must have understood them as meaning (Rheem of the Philippines v, Ferrer, G.R. No. L22979,January 27, 1967).

PERLAS·BERNABE). 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 Javor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel (1995, 1997, 2001, 2005, 2006 Bar)

Q: In 2009, Atty. Guevarra wrote a series of

posts, on his Facebook account, referring to Belo as a quack doctor, that she bribes lawyers in the Department of Justice, and that plastic surgery procedures were done . by doctors without license ' and training, alleging such practice nearly killed his client Norcio. Guevarra also threatened Belo that she will be convicted for criminal negligence and estafa for Norcio's operation. Belo asserted that the said posts, written in vulgar and obscene language, were designed to Inspire public hatred, to destroy her reputation, to close BMGI and all lts clinics, and to extort the amount of P.200 Million from her,evldenced byhis demand letter. Atty. Guevarra, however, claimed that the complaint was filed in violation of his constitutionally-guaranteed right to privacy and that he wrote the posts in the exercise of his freedom of speech. Should Atty. Guevarra be sanctioned for his acts?

A person without a retained lawyer is a legitimate prospective client for any lawyer whom he approaches for legal services. But, as soon as he had retained one and had not dismissed the retained counsel, efforts on the part of another lawyer to take him as client constitutes an act of encroaching upon the employment of another lawyer. ,,(

A lawyer should no~ in any way communicate upon the subject ofi.controversy with a party represented by counsel much less should he undertake to negotiate or compromise the matter with him, but should deal with his counsel. Any act which is aimed to ease out a previous lawyer with the intention to grab the case is highly unethical and should be avoided

A: YES.Before one can have an expectation of privacy in his or her online social networking activity - In this case, Facebook - it is first necessary that said user manifests the intention to keep certain posts private, through the employment of measures to prevent access thereto or to limit its visibility. Also, the constitutional right of freedom of expression may not be availed of to broadcast lies or halftruths; insult others, destroy their name or reputation or bring them into disrepute. A punctilious scrutiny of the Facebook remarks complained of disclosed that they were ostensibly made with malice tending to insult and tarnish the reputation of complainant and BMGI. By posting the subject remarks on Facebook directed at complainant and BMGI, (·,·-~)

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UNIVERSITY OF SANTO TOMAS Z019 GOLDEN NOTES

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RULE 8.02, CANON 8

~

(Anuouiera, 1992).

Exceptions 1.

A lawyer may properly interview any witness or prospective witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party; and 2. Any person who seeks relief against an unfaithful or neglectful lawyer may approach another lawyer for proper advice and assistance. Any advice or assistance extended after proper verification is not encroaching upon the business of another

50

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DUTIES AND RESPONSIBILITIES

lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer." Canon 9 of the Code of Professional Ethics is more particular. "A lawyer should not in any way communicate upon the subject of the controversy with a party represented ~y counsel, much Jess should he undertake to negotiate or compromise the matter with him but should deal only with his cou~sel."

lawyer for such act is justified under the circumstances. Q: Myrna, in a case for custody of children

against her husband, sought advice from Atty. Mendoza whom she met at a party. She informed Atty. Mendoza that her lawyer, Atty, Khan, has been charging her exorbitant appearance fees when all he does is move for postponements which have unduly delayed the proceedings; and that recently, she learned that Atty. Khan approached her husband asking for a huge amount in exchange for the withdrawal of her Motion for Issuance of Hold Departure Order so that he and his children can leave for abroad. Is it ethical for Atty. Mendoza to advise Myrna to terminate the services of Atty. Khan and hire him instead for a reasonable attorney's fees7 (2006 Bar)

)

Q: Atty. Manuel is counsel for the defendant

in a civil case pending before the RTC. After receiving the plaintiffs Pre-Trial Brief containing the list of witnesses, Atty. Manuel interviewed some of the witnesses for the plaintiff without the consent of plaintiff's counsel. Did Atty. Manuel violate any ethical standard for lawyers? Explain. (2009 Bar) A: NO. Canon 39 of the Canons of Professional

A: Such advice would be unethical. A lawyer shall conduct himself with courtesy, fairness and candor towards his professional colleagues (Canon 8, CPR) Specifically, he should not directly or indirectly encroach upon the professional employment of another lawyer (Canon B, CPR).

Ethics provides that "a lawyer may interview any witness or prospective witness from the opposing side in any civil or criminal action without the consent of opposing counsel or party." This is because a witness is supposed to be a neutral person whose role is to tell the truth when called upon to testify.

Q: What should Atty. Mendoza do about the information relayed to him by Myrna that Atty. Khan approached her husband with an indecent proposal? (2006 Bar)

Q: Will' your answer be the same if it was

the plaintiff who was interviewed by Atty. Manuel without the consent of plaintiffs counsel? Explain. (2009 Bar)

A: He can advise her to terminate the services of Atty. Khan and/or file an administrative case against Atty. Khan. It is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel (Rule 8.02, CPR).

A: NO. Canon 9 of the Canons of Professional

Ethics provides that "a lawyer should not in any way communicate upon a subject of controversy with a party represented by counsel, much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel." If he communicates with the adverse party directly, he will be encroaching into the employment of the adverse party's lawyer.

Q: You are the counsel of Kin his action for

specific performance against DEV, Inc., a subdivision developer which is represented by Atty. L. Your client believes that the president of DEV Inc., would be willing to consider an amicable settlement and your client urges you to discuss the matter with DEV Inc., without the presence of Atty. L whom he consider to be an impediment to an early compromise. Would it be alright for you to negotiate the terms of the compromise as so suggested above by your client? (1997 Bar)

•

· · · NO A~SISTANCE IN UNAUTHORIZED . . . .·· · .. PRACTICE OF LAW· · . CAN,ON9

A lawyer shall not, 'directly or indirectly, assist in tire unauthorized practice of Jaw. Unauthorized practice of law is committed when a person, not a lawyer, performs acts which are exclusive to members of the bar (Pineda, 2009).

A: NO. Rule 8.02, Canon 8 of the Code of Professional Responsibility provides that "a

51 L·-~

OF A LAWYER

UN lVERSiTY OF SANTO TO MAS~ FACULTY OF ClVlL LAW 'V'

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DUTIES AND RESPONSIBILITIES OF A LAWYER lawyer for such act is justified under the circumstances.

lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer." Canon 9 of the Code of Professional Ethics is more particular. ''A lawyer should not in any way communicate upon the subject of the controversy with a party represented by counsel, much less should he undertake to negotiate or compromise the matter with him but should deal only with his counsel,"

Q: Myrna, in a case for custody of children against her husband, sought advice from Atty. Mendoza whom she met at a party. She informed Atty. Mendoza that her lawyer, Atty, Khan, has been charging her exorbitant appearance fees when all he does is move for postponements which have unduly delayed the proceedings; and that recently, she learned that Atty. Khan approached her husband asking for a huge amount in exchange for the withdrawal of her Motion for Issuance of Hold Departure Order so that he and his children can leave for abroad. Is it ethical for Atty. Mendoza to advise Myrna to terminate the services of Atty. Khan and hire him instead for a reasonable attorney's fees? (2006 Bar}

Q: Atty. Manuel is counsel for the defendant in a civil case pending before the RTC. After receiving the plaintiffs Pre-Trial Brief containing the list of witnesses, Atty. Manuel interviewed some of the witnesses for the plaintiff without the consent of plaintiff's counsel. Did Atty. Manuel violate any ethical standard for lawyers? Explain. {2009 Bar}

A: Such advice would be unethical. A lawyer shall conduct himself with courtesy, fairness and candor towards hrs professional colleagues (Canon 8, CPR) Specifically, he should not directly or indirectly encroach upon the professional employment of another lawyer (Canon 8, CPR).

A: NO. Canon 39 of tl¥e Canons of Professional Ethics provides that ~a lawyer may interview any witness or prospective witness from the opposing side in any'; civil or criminal action without the consent of opposing counsel or party." This is because a witness is supposed to be a neutral person whose role is to tell the truth when called upon to testify.

Q: What should Atty. Mendoza do about the information relayed to him by Myrna that Atty. Khan approached her husband with an indecent proposal? {2006 Bar}

Q: Will'your answer be the same if it was the plaintiff who was interviewed by Atty. Manuel without the consent of plaintiffs counsel? Explain. (2009 Bar}

A: He can advise her to terminate the services of Atty. Khan and/or file an administrative case against Atty. Khan. It is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel (Rule 8.02, CPR).

A: NO. Canon 9 of the Canons of Professional Ethics provides that "a lawyer should not in any way communicate upon a subject of controversy with a party represented by counsel, much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel." If he communicates with the adverse party directly, he will be encroaching into the employment of the adverse party's lawyer.

Q: You are the counsel of Kin his action for

specific performance against DEV, Inc., a subdivision developer which is represented by Atty. L. Your client believes that the president of DEV Inc., would be willing to consider an amicable settlement and your client urges you to discuss the matter with DEV Inc., without the presence of Atty. L whom he consider to be an impediment to an early compromise. Would it be alright for you tp negotiate the terms of the compromise as so suggested above by your client? (1997 Bar)

.NO ASSISTANCE IN UNAUTHORIZED . . PRACTICE OF LAW .

CANON9 A lawyer shall not., directly or indirectly, assist in the unauthorized practice of law. Unauthorized practice of law is committed when a person, not a lawyer, performs acts which are exclusive to members of the bar (Pineda,2009).

A: NO. Rule 8.02, Canon 8 of the Code of Professional Responsibility provides that "a

. ~.,.

.

51

UNIVERSITY OF SANTO TO MAS~ FA CUL Tr. OF CIVIL LAW •••

n

•

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LEGAL ETHICS REASON: To protect the public, the court, the client and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the court (Cambaliza v. Cristal-Tenorio, A.C. No.

Fernandez then inquired if he can appear as a friend for Tony to defend him. xxx Supposing Tony is a defendant in a civil case for collection of sum of money before the same court, can Atty. Fernandez appear for him to conduct his litigation? (Z006 Bar)

6290,Ju/y 14, 2004).

There is no violation of this canon if a lawyer employs a paralegal graduate to assist him in the practice of law since the job of a paralegal is limited to drafting of documents, case management, etc (Antiquiera, 1992).

A: Even if Tony is a defendant in a civil case, Atty. Fernandez cannot be allowed to appear for him to conduct his litigation; otherwise, the judge will be violating Canon 9 of the CPR which provides that a "lawyer shall not. directly or indirectly, assist in the unauthorized practice of law."

Q: Will a lawyer violate the Code of Professional Responsibility if. he forms a partnership with professionals of other disciplines like doctors, engineers, architects or accountants? (2014 Bar)

RULE 9.01, CANON9

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 A

A: YES, the Code of Professional Responsibility prohibits unauthorized practice of law so that lawyers cannot directly or indirectly assist said practice, or delegate its practice to one who is not qualified to do so. In partnership, the act of a partner is the act of the partnership; hence, a non-lawyer cannot perform an act that has a legal effect and in the name of the partnership.

good standing.

The qualifications to be a lawyer are personal and the Bar is an exclusive group of professionals who possess the requisite qualifications and for whom defined functions are reserved. To delegate the functions would violate the rationale behind reserving defined functions exclusively for those who are admitted to the bar (Ulep v. The Legal Clinic,

Q: Sanchez alleged that the complaint against him and the supporting affidavits were subscribed and sworn to before Tupas, the Clerk of Court, who is not a member of the IBP and therefore engaged in unauthorized practice of law. Is Tupas as Clerk of Court authorized to administer oath?

Inc., B.M. No. 553,June 17, 1993). Although the authority of a lawyer to represent a client cannot be delegated to an unqualified person, it does not follow however that the retained lawyer is automatically authorized to make such delegation to a qualified person because a client-lawyer relationship is personal (CPR Annotated, Phif]AJ.

A: YES. The term "clerk of courts" in Section 41 of the Administrative Code as amended is used as a general term. The intention of the law is to authorize all clerks of court regardless of whether they are clerks of the MT~s. to administer oaths on matter involving official business. As Clerk of Court of MCTC, Tupas has the authority to administer oath of affidavits of parties and witnesses which are to be filed in court (Sanchez v. Tupas, A.M. OCA !Pl No. 03-

Q: Lorenzo is a lawyer but was suspended

from the practice of law due to some unethical acts. He worked for a law firm owned by one of his friends. Since he has so many cases to handle, Atty. Berenguer assigned a case to Lorenzo, believing he can handle an easy case. Did Atty. Berenguer violate any rule?

1687·?, March 1, 2004).

Q: The Supreme Court suspended indefinitely Atty. Fernandez from the practice of law for gross immorality. He asked the MCTC Judge of his town if he can be appointed counsel de officio for Tony, a childhood friend who is accused of theft. The judge refused because Atty. Fernandez's name appears in the Supreme Court's list of suspended lawyers. Atty. UNIVERSITY OF SANTO TOMAS GOLDEN NOTES

2019

A: YES, because he delegated the handling of a case to a person suspended from the practice of law. Under Rule 9.01 of CPR - 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.

52

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DUTIES AND RESPONSIBILITIES OF A LAWYER assignee could not claim entitlement to the money in their own right but only by representation (CPR Annotated, Phil]AJ.

Q: Atty. Monica Santos-Cruz registered the firm name "Santos-Cruz Law Office" with the DTI as a single proprietorship. In her stationery, she printed the names of her husband and a friend who are both non· lawyers as her senior partners in light of their investments in the firm. She allowed her husband to give out calling cards bearing bis name as senior partner of the firm and to appear in courts to move for postponements, Did Atty. Santos-Cruz violate the CPR? (2010 Bar)

2.

Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer (Rule 9.02, third par; Canon 9, CPR); or

A: YES, she violated Rule 9.01, Canon 9 of the CPR. By allowing her husband to appear in · courts to move for the postponements of the cases of the firm, she delegated her duty to appear, which a member of the bar can only perform, to an unqualified person. The lawyer's duty to prevent, or at the very least not to assist in, the unauthorized practice of law is founded on public interest and policy. Public policy requires that the practice of law be limited to those individuals found duly qualified in education and character. The permissive right conferred on the lawyer is an individual and limited privilege subject to withdrawal if he fails to maintain proper standards of moral and professional conduct (Cambaliza v. Cristal-Tenorio, A.C. No. 6290, July 14, 2004).

NOTE: This is not a division of legal fees but a pension representing deferred wages for the employees' past services. This exception is an implicit recognition of the incontestable fact that lawyers need to, and in fact, depend on non-lawyers for the administrative support functions necessary to allow lawyers to discharge their legal functions more efficiently (CPR Annotated, PhiljA).

Q: Engr. Tumbokon referred a case for partition of the estate of the late Benjamin Yap to Atty. Pefianco. It was agreed in writing that Rufino would receive ten (10) percent of the attorney's fees to be received by Atty. Pefianco. However, when the fees were already paid, Pefianco refused to pay, stating in a letter that the spouses will be the one to shoulder his commission. Rufino filed a disbarment case against Pefianco. Should Atty. Pefianco be disciplined?

Rr,JLE 9.02, CANON 9

A lawyer shall not divide or stipulate to divide a fee for legal services with persons not licensed to practice law. The interest promoted by the prohibition is that the independence of the professional judgment of a lawyer, which the client is paying for, could be at risk if a non-lawyer has direct rights to share in the legal fees resulting from the exercise of such professional judgment (CPR Annotated, Phil]A).

A: YES, it is clear that Atty.Pefianco violated

Rule 9.02, Canon 9. By stipulating that Rufino will be entitled to a commission from his attorney's fees, Atty. Pefianco entered into an agreement to divide the fee with a person not licensed to practice law (Tumbokon v. Pefianco, A.C. No. 6116, Augi,Jst 1, 2012, PERLAS·

Exceptions to Rule 9.02 1. Where there is a pre-existing agreement with a partner or associate that, upon the latter's death, money shall be paid over reasonable period of time to his estate to persons specified in the agreement (Rule 9.02, second par; Canon 9, CPR); or

a

BERNABE). Q: You had just taken your oath as lawyer.

The secretary to the president of a big university offered to get you as the official notary public of the school. She explained

NOTE: This exception is in the nature of ebequest: It is still, in substance, payment to the deceased lawyer. His estate and/or

53 L ...

•

NOTE: The estate or the heir cannot be made a member of the partnership with the surviving partners. The legal fees in this case, no )onger represent past compensation. i 3.. Where a lawyer or' law firm includes a nonlawyer employee in a retirement plan, even if the plan is based in whole or in part, on a profit-sharing agreement (Rule 9.02, fourth par; Canon 9, CPR).

U NlVERStTY

OF SANTO TOMAS~ FACULTY OF CIVIL LAW •••

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LEGAL ETHICS that a lot of students lose their identification cards and are required to secure an affidavit of loss before they can be issued a new one. She claimed that this would be lucrative for you, as more than 30 students lose their identification cards every month. However, the secretary wants you to give her one-half of your earning therefrom. Will you agree to the arrangement? Explain. (2005 Bar)

pleadings in the latter's behalf only to claim later that he was not authorized to do so. Q: Atty. Florido demanded from his wife that the custody of their children be surrendered to him. He showed her a photocopy of an alleged Resolution issued by the CA supposedly granting his motion for temporary child custody. His wife refused. Atty. Florido filed a verified petition for the issuance of a writ of habeas corpus asserting his right to custody of the children on the basis of the alleged CA Resolution. His wife, however, obtained a certification from the CA stating that no such resolution had been issued. May Atty. Florido be held administratively liable for his reliance on and attempt to enforce a spurious Resolution of the CA?

A: NO, I will not agree. Rule 9.02 of the Code of Professional Responsibility provides that "a lawyer shall not divide or stipulate' to divide a fee for legal service with persons not licensed to practice law". The secretary is not licensed to practice law and is not entitled to a share of the fees for notarizing affidavits, which is a legal service,

A: YES. Atty. Florida's actions erode the public perception of the legal profession, Candor and fairness are demanded of every lawyer. The burden cast on the judiciary would be intolerable. if it could not take at face value what is asserted by counsel, The time that will have to be devoted just to the task of verification of allegations submitted could easily be imagined (Hueysuwan-Florido v. Atty. Florido, A.C. No. 5624,january 20, 2004).

. CANDOR, FAIRNESS & GOOD FAITH TO THE '

. .

'

. COURTS .

.

. ': ..

CANDN10

::]

A lawyer owes candor, fairness and good faith to the court The burden cast on the judiciary would be intolerable if it could not take at face value what is asserted by counsel (Munoz v. People, G.R. No. L-33672 September 28, 1973).

RULE 10.011 CANON 10 A lawyer shall not do any falsehood, nor

consent to the doing of any in court; nor shall he mislead, or allow the court to be misled by any artifice.

As officers of the court, lawyers have the primary obligation towards the administration of justice, To mislead the court is contumacious and clearly a ground for disciplinary action (Anttquiera, CPR). ·

A lawyer must be a disciple of truth. He should bear in mind that as an officer of the court his high vocation is to correctly inform the court upon the law and the facts of the case and to aid it in doing justice and arriving at a correct conclusion. The courts on the other hand are entitled to expect only complete honesty from lawyers appearing and pleading before them. While a lawyer has the solemn duty to defend his client's cause, his conduct must never be at the expense of truth (Young v. Batuegas, A.C. No. 5379, May 9, 2003).

Requirements of candor l.

A lawyer shall not suppress material and vital facts which bear on the merit or lack of merit of a complaint or petition; 2. A lawyer shall volunteer to the court any development of the case which ;has rendered the issue raised moot and academic; 3. Disclosure to the court of any decision adverse to his position of which opposing counsel is apparently ignorant and which court should consider in deciding a case; and . 4. He shall not represent himself as lawyer for a client, appear in court and present

NOTE: A lawyer owes fidelity to the cause of his client but not at the expense of truth and the administration of justice (Garcia v. Francisco, Adm. Case no. 3923, March 30, 1993).

a

('.-.) \,,;, ,..II'

UNIVERSITY OF SANTO TOMAS 2 0 1 9 G O L D E N N O TE S

Presenting falseevidence is not justifiable.Itis a clear violation of Canon 10 and Rule 10.01 of

54

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DUTIES AND RESPONSIBILITIES the CPR.Asidefrom violations of the CPR, the lawyer is also guilty of a crime under Art 184, Revised Penal Code, which states:

an election • protest and enlisted t:pe services of Atty. De Vera, who rushed the preparation of the necessary documents and attachments. Two (2) of these attachments are the Affidavits of material witnesses Lachlca and Almera, which were personally prepared by Atty. De Vera. At the time that the aforesaid ' affidavits were needed to be signed by Lachica and Almera, they were unfortunately unavailable. To remedy this, Atty. De Vera had the nearest kin or relatives of Lachica and Almera to sign over the names. Later, however, Lachica discovered the falsification and immediately disowned the signature affixed in the affidavit and submitted his own Affidavit, declaring that he did not authorize the signing of the document on his behalf. Is Atty. De Vera Administratively liable? Q: Spouses Umagui~g lodged

"Any person who shall knowingly offer in evidence a false witness or testimony in any judicial or official proceeding, shall, be punished as guilty of false testimony and . shall suffer the respective penalties provided in this section." Examples of falsehood 1.

2.

3.

Lawyers falsely stating in a deed of sale that property is free from all liens and encumbrances when it is not so (Sevilla v. Zoleta, A.C. No. 31, March 28, 1955); Lawyers making it appear that a person, long dead, executed a deed of sale in his favor (Monterey v. Arayata, Per. Rec. Nos 3527, 3408, August 23, 193S); Lawyer encashing a check payable to a deceased cousin by signing the latter's name on the check (In re: Samaniego, A.C.

• · A: YES. Atty. De Vera is found guilty of violating the Lawyer's Oath and Rule 10.01, Canon 10 of the CPR by submitting a falsified document before a court In his dealings with his client and with the courts, every lawyer is expected to be honest, imbued with integrity, and trustworthy. These expectations, though high and demanding. are the professional and ethical burdens of every member of the Philippine Bar, for they have been given full expression in the Lawyer's Oath that every lawyer of this country has taken upon admission as a bona fide member of the Law Profession (Sps. Umaguing v. Atty. De Vera, A.C. No. 10451, February 4, 2015, PERLAS· BERNABE).

No. 74, November 20, 1959);

4.

Lawyer falsified a power of attorney and used it in collecting the money due to the principal and appropriated the money for his own benefit (In re: Rusina, A.C. No. 270, May29,1959);

5.

Lawyer alleging in one pleading that his clients were merely lessees of the property involved, and alleged in a later pleading that the same clients were the owners of the same property where there are false allegations in the pleadings (Chavez v. Viola, G.R. No. 2152, April 19, 1991);

6.

Lawyer uttering falsehood in a Motion to Dismiss(Martin v. Moreno, A.C. No. 1432, May21 1984}; Lawyer denying having received the notice to file brief which is belied by the return card (Ra9asajo v. /AC, G.R. No. L69129, August 31, 1987); Lawyer presenting falsified documents in court which he knows to be false (Berenquer v. Carranza, A.C. No. 716, January 30, 1969; Umaguing v. Atty. De Vera, A.C. No. 10451, February 4, 2015,

Q: Dr. MaUgaya, a doctor and retired colonel of the Air Force flledan action for damages against several military officers for whom Atty. Doronilla stood as a counsel. During the hearing, Atty. Dorontlla alleged that he and Dr. Maligaya had. an agreement that if the opposing party withdraws the case against him, Dr. Maligaya will also withdraw all the cases. However, Dr. Maligaya swore that he never entered into any such agreement. Atty. Doronilla then admitted that there was no such agreement. He pointed out that his main concern was to settle the case amicably. Dr. Maligaya filed a case against Atty. Doronllla charging him with unethical conduct for having uttered falsehood in court. Is Atty. Doronilla guilty as charged?

1

7.

8.

OF A LAWYER

PERLAS-BERNABE);

9.

Lawyer filing false charges or groundless suits (Retuya v. Gorduiz, A.C. No. 1388, March 28, 1980); and 10. Lawyer making untruthful and false statements before the court (Molina v. Ma9at, A.C. No.1900,June 13, 2012).

55

U N[VERS1TY OF SANTO TOMAS~ FACULTY OF ClVIL LAW ·y

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LEGAL ETHICS A: YES, Atty. Doronilla violated Canon 10 and Rule 10.01 of the CPR. Not only that, he also violated the lawyer's oath to do no falsehood, nor consent to the doing of any in court, of which Canon 10 and Rule 10.01 are but restatements. His act infringed on every lawyer's duty to "never seek to mislead the judge or any officer by an artifice or false statement of fact or law"(Mafigaya v. Doronilla,

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. If not faithfully and exactly quoted, decisions and rulings of the court may their proper and correct meaning, to detriment of other courts. lawyers and public who may thereby be misled.

A.C. No. 6198,September 15, 2006).

the lose the the

\ Q: De Jesus alleged that Atty. Sanchez· Malftdrafted and notarized a Real Estate Mortgage of a public market stall that falsely named the former as its absolute and registered owner despite the latter being the consultant of the local government unit, and was therefore aware that the market stall was government· owned.Prfor thereto, Atty. Sanchez-Malit also notarized two contracts that caused De Jesus legal and financial problems. One contract was a lease agreement that was notarized without the signature of the lessees. The other contract was a sale agreement which Atty, Sanchez-Malit also drafted and notarized, but did not advise De Jesus that the property was still covered by the period within which it could not be alienated.Did Atty. Sanchez-Malit violate Rule 10.01 of the Code of Professional Responsibility?

RULE 10.03}CANON 10

lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends ofjustice. A

i• I

Filing multiple acticini constitutes an abuse of the Court's processes.Those who filed multiple or repetitive actions subject themselves to disciplinary action for incompetence or willful violation of their duties as attorneys to act with all good fidelity to the courts, and to maintain only such actions that appear to be just and consistent with truth knd honor ( Olivaresetc. v. Atty.

(-•• )

\. .• ,.v

_ UN I VER SIT Y O F SA NT O 2019 GOLDEN NOTES

1

Nt 6323, April 13, 2007).

.+.

· l' . -..!

..· ~

.·;

' _)!

I Files an unsigned leading in violation

1.

'.i

::J

of the rules; Alleges scandalous matters therein; or Fails to promptly, report to the court a change of his address (Sec. 3, Rule 7, RRC).

··I... ..

r·

2. 3.

1

. >l -' I .

I

};~

NOTE: A lawyer should not abuse his right of recourse to the courts for the purpose of arguing a cause that had been repeatedly rebuffed. Neither should he use his knowledge of law as an instrument to harass a party nor to misuse Judicial professes, as the same constitutes serious transgression of the Code of I Professional Responsibility. For while he owes fidelity to the cause of\ his client, it should not be at the expense1 of truth and . the administration of justice (Garcia v. Francisco,

•

A.C. No. 3923, March 30,j 1993).

•

RULE 10.04, CANON 10

•

tJ' 0 MAS

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',1 ··,;

When a counsel delibelrately:

(De Jesus v. Sanonez-Malit; A. C. No. 64 70, July 08, 2014). RULE 10.02, CANON 10

'

. )'

Instances when lawyers can be disciplined based on the pleadings they flied

A: YES. In this case, respondent fully knew that complainant was not the owner of the mortgaged market stall. That complainant comprehended the provisions of the real estate mortgage contract does not make respondent any less guilty. If at all, it· only heightens the latter's liability for tolerating a wrongful act. A notary public should not notarize a document unless the persons who signed it are the same ones who executed it and who personally appeared before the said notary public to attest to the contents and truth of what are stated therein. Thus, in acknowledging that the parties personally came and appeared before her, respondent also violated Rule 10.01 of the Code of Professional Responsibility and her oath as a lawyer that she shall do no falsehood

A lawyer shall not knowingly misquote or misrepresent the contents of the paper, the language or the argument of opposing counsel, or the text of a dedsion or

Villalon Jr., A.C.

·?

·.'i

. ·.1

•·

A lawyer shall, wh~n filing a pleading, furnish the opposing party with a copy thereof, toge.ther with all the documents annexed thereto. Unless a motion ts ex f' I parte,. he should s~.t it for hearing, with sufficient notice to the other party. 1

.

56

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DUTIES AND RESPONSIBILITIES

\l

OF A LAWYER

the justices violated the said rule by attending the 'EDSA 2 Rally' and by authorizing the assumption of Vice· President Macapagal·Arroyo to the Presidency. The subsequent decision of the Court in Estrada v.Arroyo (G.R. Nos.146710· ~ 15, March 2, 2001 and G.R. Nos. 146710·15, April 3, 2001) is a patent mockery of Justice and due process. He went on to state that the act of the public officer, if lawful, is the act of the public office. But the act of the public officer, if unlawful, is not the act of the public office. Consequently, the act of the justices, if lawful, is the act of the Supreme Court. But the act of the justices, if unlawful, is not the act of the Supreme Court.

.. ' 'RESPECT FOR.COURTS AND JUDICIAL , . ·, · : . . : OFFICERS . · ·. '.

CANON 11 A lawyer shall observe and maintain -tlle respect due to the courts and to judicial o.b1cers and should Insist on similar conduct by others. Disrespect toward the court would necessarily undermine the confidence of the people in the honesty and integrity of the members of the court, and consequently, to lower or degrade the administration of justice by the court (In re Sotto, 82 Phil. 595,January 21, 19tf.9). All lawyers are expected to recognize the authority of the Supreme Court and obey its lawful processes and orders. Despite errors which one may impute on the orders of th-a Court, these must be respected, especially by the bar or the lawyers who are themselves officers of the courts (Yap-Paras v. Atty. Paras, A.C. No. 4947,June 7, 2007).

Further, he asserted that the decision in Estrada v. Arroyo being patently unlawful in · view of the Code of Judicial Conduct,. is not • the act of the Supreme Court but is merely the wrong of those individual Justices who falsely spoke and acted in the name of the Supreme Court. Are Atty. Paguia's comments within the bounds of "fair and well-founded criticisms" regarding decisions of the Supreme Court?

NOTE:The fact that a person is a lawyer does not deprive him of the right, as enjoyed by every citizen, to comment on and criticize the actuations of a judge but it is the cardinal condition of all criticisms that it shall be bona fide, and shall not spill over the walls of decency and propriety (Zaldfvar v. Gonzales, C.R. Nos.

A: NO. Criticism or comment made in good faith on the correctness or wrongness, soundness or unsoundness, of a decision of the Court would be welcome for, if well-founded, and such reaction can 'enlighten the court and contribute to the correction of an error if . committed (In re: Sotto, 82 Phil. 595). Attorney . Paguia has not limited his discussions to the merits of his client's case within the judicial forum; indeed, he has repeated his assault on . the Court in both broadcast and print media.

79690-707, February 1, 1989).

What a lawyer can ordinarily say against a concluded litigation and the manner the judge handed the decision therein may not generally be said to a pending action. The court, in a pending litigation, must be shielded from embarrassment and influence in performing the important duty of deciding it (In re Almacen, G.R. No. L-27654, February 18, 1970). On the other hand, once litigation is concluded, the judge who decided on 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 (Strebe! v. Ffgueras, C.R. No. L· 4722, Dec 29, 1954; In re Almac~n,G.R. No. L· 27654, February 18, 1970).

The Supreme Court does not claim infallibility; it 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 practice law in the Philippines. Canon 11 of the Code of Professional Responsibility mandates that the lawyer should observe and maintain the respect due to the courts and judicial officers and, indeed, should insist on similar conduct by others. In liberally imputing sinister and devious motives and questioning the impartiality, integrity, and authority of the members of the Court, Atty. Paguia has only

Q: Atty. Paguia asserts that the inhibition of

the members of the Supreme Court from hearing the petition is called for under the Code of Judicial Conduct prohibiting justices or judges from participating in any partisan political activity. According to him,

57

UN lVERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW

·y•

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LEGAL ETHICS succeeded In seeking to impede, obstruct and pervert the dispensation of justice (Estrada v. Sandiganbayan, G.R. Nos. 159486-88, November 25,2003).

directing respondent Atty. De Vera to explain why he should not . be cited for indirect contempt of court1 for uttering allegedly contemptuous statements in relation to the then pending case involving the constitutlonaltty of the Plunder Law. Atty. De Vera admitted the report in the November 6, 2002· issue of the Philippine Daily Inquirer whe~e he "suggested that the Court must take steps to dispel once and for all these ugly rumors and reports" that "the Court would vote in favor of or against the validity of the Plunder Law to protect the credibiJity of the Court", Is the statement of Atty. De Vera disrespectful to the courts?

Q: Members of the faculty of the UP College

of Law published a statement on the allegations of plagiarism and misrepresentation relative to the Court's decision in Vinuya v. Executive Secretary. The authors directly accused the Court of perpetrating extraordinary injustice by dismissing the petition of the comfort women in said case. The insult to the members of the Court was aggravated by imputations of deliberately delaying the resolution of the case, its dismissal on the basis of "polluted sources," the Court's alleged the indifference to the cause of petitlonersand the supposed alarming lack of concern of the members of the Court for even the most basic values of decency and respect. Was the criticism proper?

A: YES. Indeed, freedom of speech includes the right to know and discuss judicial proceedings, but such right does not cover statements aimed at undermining the Court's integrity and authority, and interfering with the administration of justice. Preedom of speech is not absolute, and must occasionally 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.

A: NO. While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic society, there is also a general consensus that the healthy criticism only goes so far. Many types of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially devastating attacks and unjust criticism can threaten the independence of the judiciary. The court must "insist on being permitted 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."

Thus, the making of contemptuous statements directed against the Court is not an exercise of free speech; rather, it is an abuse of such 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 therefore and confidence therein (In Re: Published Alleged Threats by Atty. Leonard de Vera, A.M. No. 01 • 12-03-SC,july29, 2002).

This runs contrary to their obligation as law professors and officers of the Court to be the first to uphold the dignity and authority of this Court, to which they owe fidelity according to the oath they have taken as attorneys, and not to promote distrust in the administration of justice. Their actions likewise constitute violations of Canons 10, 11. and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility (Re: Letter of the UP Law

Q: Jimmy and his siblings filed a case for disciplinary action against Atty. Cefra for notarizing a falsified Deed of Absolute Sale over a parcel of land, where their signatures were forged. The Supreme Court required him to':, comment on the administrative complaint. However, Atty. Cefra did not comply with the Court's order. His continued refusal to file his Comment caused the court to order his arrest and commitment. Is Atty. Cefra guilty of violating the Code of Professional Responsibility in ignoring the court's order directing him to comment on the complaint against him?

Faculty entitled "Restoring Integrity: A Statement by the Faculty of the University of t.~e Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court", A.M. No. 10-10-4-SC, October 19,2010). Q: The Court En Banc issued a Resolution

~-••) \1, •• ~

UN I VER SI TY O F SA NT O TO M AS 2019 GOLDEN NOTES

58

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DUTIES AND RESPONSIBILITIES A: YES. The act of disobeying a court order constitutes violation of Canon 11 of the Code of Professional Responsibility, which requires a lawyer to "observe and maintain the respect due to the courts." He contumaciously delayed compliance with this court's order to file a Comment. Atty. Cefra did not comply with this order until he was arrested by the National Bureau of Investigation. Atty. Cefra only filed his Comment, more than seven years after the Court's order. Atty. Cefra's actions show utter disrespect for legal processes (Anudon v. Cefra, A. C. No. 5482, February 10, 2015).

OF A LAWYER

A lawyer shall punctually appear at court hearings. '

•

Punctuality is demanded by the respect which a lawyer owes to the court, the opposing counsel and to all the parties to the case (Funa, 2009). RULE 11.031 CANON 11 A lawyer shall abstain from scandalous, offensive, or menacing language or behavior before the Courts.

Q: After the parties had filed their respective briefs with the CA and before the latter's resolution submitting the case for decision was released, respondent lawyers, Atty. Depasucat, and others filed a pleading • · "Manlfestation.of Usurpation of Authority of the Hon. Court of Appeals from a SelfConfessed Briber of Judges", which stated that plaintiff-appellant Uy had, in fact, confessed to bribing judges. Consequently, Uy filed a verified complaint against respondent lawyers for gross misconduct. Should they be disciplined for having authored and filed the "Manifestation of Usurpation of Authority of the Hon. Court of Appeals from a Self-Confessed Briber of Judges"?

RULE 11.01, CANON 11 A lawyer shall appear in court properly attired. As an officer of the court and in order fo maintain the dignity and respectability of the legal profession, a lawyer who appears in court must be properly attired. Consequently, the court can hold a lawyer in contempt of court if he does not appear in proper attire. Any deviation from the commonly accepted norm of dressing in court (barong or tie, not both) is enough to warrant a citing for contempt (Agpalo, 2009). The traditional attires for male lawyers in the Philippines are the long-sleeve Barong Tagalog or coat and tie. Female lawyers appear in semi· formal attires. Judges also appear in the same attire in addition to black robes (Pineda, 2009).

A: YES. The lawyers went overboard by stating in the Manifestation that complainant "had in fact confessed to bribery and telling one of the judges, after the judges allegedly refused to give in to their demands, by using illegally taped conversations-both actual and/or by telephone", It belied their good intention and exceeded the bounds of propriety, hence, not arguably protected; it is the surfacing of a feeling of contempt towards a litigant; it offends the court before which it is made. A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the courts. It must be remembered that the language vehicle does not run short of expressions which are emphatic but respectful, convincing but not derogatory, illuminating but not offensive. It has been said that a lawyer's language should be dignified in keeping with the dignity of the legal profession. It is the duty of Atty. Depasucatet al. as members of the Bar 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 (Uy v. Depasucat; A.C. No. 5332, July 29, 2003).

Q: Atty. Jesus Falcis appeared in a preliminary conference before the Supreme Court wearing a casual jacket; cropped jeans, and loafers without socks. Did Atty. Falcis commit any ethical impropriety? A: YES. Atty. Palcis is reminded of the requirement under Canon 11 of the CPR for lawyers to "observe and maintain the respect due to the Courts and to judicial officers and to insist on similar conduct by others." This duty encompasses appearances before courts in proper attire. This Court does not insist on sartorial pomposity. It does not prescribe immutable minutiae for physical appearance. Still, Professional courtesy demands that persons, especially lawyers, having business before courts, act with discretion and manifest this discretion in their choice of apparel (ralcis Ill v. Civil Registrar General, G.R. No. 217910, July 3, 2018).

RULE 11.02, CANON 11

59

UNrVERSITY OF\SANTO TOMAS~ FACULTYi'.Qf CIVIL LAW ....

•

LEGAL ETHICS NOTE: The language of a lawyer, both oral and written, must be respectful and restrained in keeping with the dignity of the legal profession and with his behavioral attitude toward his brethren in the profession. The use of abusive language by counsel against the opposing

RULE 11.04, CANON 11

A lawyer shall not attribute to a Judge motives not supported by the record or, have no materiality to the case. Every citizen has the right to comment upon and criticize the actuations of public officers. This right Is not dismissed by the fact that the criticism is aimed at a judicial authority, or that it is articulated by a lawyer (In Re: Almacen,

counsel constitutes at the same time disrespect to the dignity of the court Justice. Moreover, the use of impassioned language In pleadings, more often than not, creates more heat than light (Buenaseda v. Plavier, G.R. No. 106719,

G.R. No. L-27654,

February 18, 1970).

September 21, 1993). Such right is especially recognized where the criticism concerns a concluded litigation, because the Court's actuations are thrown open to public consumption. Courts thus treat with forbearance and restraint a lawyer who vigorously assails their actuations for courageous and fearless advocates are the strands that weave durability into the tapestry of justice (In Re: Almacen, G.R. No. L-27654,

The duty to observe and maintain respect is not a one-way duty from a lawyer to a judge. A judge should also be courteous to counsel, especially those who are young and inexperienced and to all those appearing or concerned in the administration of justice (The

Officers and Members of the Integrated Bar of the Philippines, Baguio·Benguet Chapter v.

February 18, 1970).

Pamintuan, A.M. No. RTJ-02-1691, November 19, 2004).

Post litigation utterances or publications made by lawyers, critical of the courts and their judicial actuations, whether amounting to a crime or not, which transcend the permissible bounds of fair comment and legitimate criticism and thereby tend to bring them into dispute or to subvert public confidence in their integrity and in the orderly administration of justice.constitute grave professional misconduct which may be visited with disbarment or other lesser appropriate dtsciplinary sanctions by the Supreme Court in ' the exercise of the prerogatives inherent in it as the duly constituted guardian of the morals and ethics of the legal fraternity (In Re:

Q: An administrative

case for disbarment was filed against MOS, a Lady Senator, for uttering offensive remarks in her privilege speech delivered in the Senate floor. She was quoted as saying that she wanted "to spit on the face of Chief Justice and his cohorts in the Supreme Court," and calling the Court a "Supreme Court of idiots/ She alleged that it was considered as part of her parliamentary immunity as such was done during the session. Is she correct? A: YES. Her statements, being part of her privilege speech as a member of Congress, were covered by the constitutional provision on parliamentary immunity. Her privilege speech is not actionable criminally or in a disciplinary proceeding under the Rules of Court. However, as a member of the Bar, the Court wishes to express its deep concern about the language Senator MDS used in her speech and its effect on the administration of justice. To the Court, the lady senator has undoubtedly crossed the limits cif decency and good professional conduct

Almacen, G.R. No. L-27654, February 18, 1970). ;

Q: Atty. Romeo Roxas was charged with indirect contempt. In a letter addressed to Associate Justice Chico-Nazarlo, he wrote that Justice Nazario decided the cases in favor of Zuzuarregui, ordering Attys. Roxas and Pastor to pay the former on considerations other than the pure merits of the case and called the Supreme Court a "dispenser of injustice." He ended his letter by mocking her.when he said "sleep well if • you still can" and that "her earthly life will be judged by the Supreme Dispenser of Justice where only the merits of your Honor's life will be relevant and material and where technicalities can shield no one from his or her wrongdoings."

No lawyer who has taken an oath to maintain the respect due to the courts should be allowed to erode the people's faith in the judiciary. In this case, the lady senator clearly violated Canon 8, Rule 8.01 and Canon 11 of the Code of Professional Responstbllity (Pobre v. Senator

In the written explanation of Atty. Roxas, he

Santiago, A.C. No. 7399, August 25, 2009).

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extended apologies to Justice Nazario. He said he was merely exercising his rights to express a legitimate grievance or articulate fair criticisms of the court's ruling.

mutual respect and on a deep appreciation by one of the duties of the other. It is upon their cordial relationship and mutual cooperation that the hope of our people for speedy and

Moreover, accordtn1 to him, tn,tllld of

efficient Justice rests (Abi,rc, v. Mac,da, A.C, No,

resorttttg to publtc criticisms, he chose to

•

RTJ-91-660,June:30, 1994).

ventilate his criticisms in a discreet and private manner by writing a personal letter. Should Atty. Roxas be punished for the contents of his letter?

If the court official or employee or a lawyer is to be disciplined, the evidence against him should be substantial, competent and derived from direct knowledge, not on mere allegations, conjectures, suppositions or on the basis of hearsay (Cervantes v. Atty. Sabio, A.C.

A: YES. Atty. Roxas' letter contains defamatory statements that impaired public confidence in

No. 7828, August 11, 2qoa).

the integrity of the Judiciary. The making of contemptuous statements directed against the court is not an exercise of free speech; rather, it is an abuse of such rightA Jetter furnished to all the members of the Supreme Court, even if a copy was not disseminated to the media, does not enjoy the mantle of right to privacy. Letters addressed to the individual justices tn connection with the performance of their judicial functions become part of the judicial record and are matter of concern for the entire court.Atty. Roxas is guilty of indirect contempt of court for an improper conduct tending, directly and indirectly, to impede, obstruct or degrade the administration of justice; and with his contemptuous and defamatory statements, Atty. Roxas likewise violated Canon 11 of the CPR particularly Rules 11.03 and 11.04 (Roxas v. Zuzuarrequi, et al, G.R. No. 152072, July 12,

• RULE 11.05, CANON 11

A lawyer shall submit grievances against a Judge to the proper authorities only. Proper venue/forum following cases

for the filing of the

:. NATURE OF THE ·

. WHERE TO FILE ·

, . CASE · If administrative

. in

It shall be filed with the Office of the Court Administrator of the Supreme Court.

If criminal and not purely administrative

It shall be filed with the Office of the Ombudsman, also with the Office of the City Prosecutor (OCP).

nature

2007).

Q: When ls public comment and criticism of

i---~·~~~~-+-~~~~~ .......~~~ If it involves a Justice It must be coursed of the Supreme Court through the House of based on impeachable Representative and offenses the Senate in accordance with the rules on impeachment. Source: (CPR Annotated, Phi/JA)

a court decision permissible and when would it be improper? (1997 Bar) A: A lawyer, like every citizen, enjoys the right to corrttnent on and criticize the decision of a court. As an officer of the court, a lawyer is expected not only to exercise that right but also to consider it his duty to expose the shortcomings and indiscretions of courts and judges. But such right is subject to the limitations that it shall be bona fide. It is proper to criticize the courts and judges, but it is improper to subject them to abuse and slander, degrade them or destroy public confidence in them. Moreover, a lawyer shall not attribute to a judge motives not supported by the record or have no materiality in the case (Rule 11.04,

NOTE: An administrative complaint is not an appropriate remedy where judicial recourse is still available, such as a motion for reconsideration, an appeal, or a petition for certiorari, unless the assailed order or decision is tainted with fraud,: malice, or dishonesty

(Santiago Ill v. Justice Enriquez; Ir- A.M. No. CA· 09-47·], February 13, 2009).

CPR).

ASSl~TANCE IN THE SPEEDY AND EFFICIENT NOTE: A lawyer should be reminded of his primary duty to assist the court in the administration of justice. The relations between counsel and judge should be based on

·

ADMINISTRATION OF JUSTICE

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LEGAL ETHICS decision had long become final before the said petitions were filed. Did the lawyers violate Canon 12 of the CPR?

CANON12

A lawyer shall exert every effort and consider It his duty to assist in the speedy and efficient administration

A: YES. While lawyers owe their entire devotion to the interest of the client and zeal in the defense of their client's right, they are also officers of the court, bound to exert every effort to assist In the speedy and efficient administration of justice.They should not misuse the rules of procedure to defeat the ends of justice or unduly delay a case, impede the execution of a judgment or misuse court processes. The facts and the law should advise them that a case such as this should not be permitted to be filed to merely clutter the already congested judicial dockets. They do not advance the cause of law or their clients by commencing litigations that for sheer lack of merit do not deserve the attention of the courts (Eternal Gardens Memorial Park Corporation v. CA, G.R. No. 123698, August 5, 1998).

ofjustice. I

A lawyer is bound by his oath to serve his client with utmost zeal and dedication and shall conduct himself according to the best of his knowledge and discretion (Antiquiera, CPR). The filing of another action concerning the same subject matter, in violation of the doctrine of res judicata, runs contrary to this Canon (Lim v. Montano, A.C. No. 5653, February 27, 2006). '

Q: Jardin engaged the services of Atty. Villar

Jr. to represent him in a collection case. Despite several extensions of time given by the trial court, Atty. Villar Jr. failed to file his formal offer of exhibits and did not give an explanation of his inaction. The case was dismissed and this prompted Jardin to file a complaint for disbarment against Atty. Villar, Jr. Was Atty. Villar, Jr. remiss in his duties as counsel when he failed to file his formal offer of exhibits?

RULE 12.01, CANON 12 A lawyer shall no(pppear for trial unless he has adequately prepared himself on the Jaw and the facts of his case, the evidence he will adduce and the order of its profference. He.should also be ready with the origirial documents for comparison with the copies.

A: YES. The record clearly shows that Atty. Villar Jr. has been languid in the performance of his duties as counsel for the complainant. He was given by the Trial Court several extensions

A newly hired counsel who appears in a case In the midstream is presumed and obliged to acquaint himself with all the antecedent processes and proceedings that have transpired in the record prior to his takeover (Villasis v. CA, C.R. Nos. L· 36874·76, September

of time. Evidently, Atty. Villar Jr. has fallen short of the competence and diligence required of every rnember of the Bar. He committed a serious transgression when he failed to exert his utmost learning and ability and to give entire devotion to his client's cause. His client had relied on him to file the formal offer of exhibits among other things. But he failed him. Resulting as it did in the dismissal of the case, his failure constitutes inexcusable fault (jardin v; AttJ,. Villar, Jr., A.C. No. 5474, August 28,

•

30, 1974).

RULE 12.02, CANON 12 A lawyer shall not file multiple actions arising from the same cause. (1991, 1997, 1998, 2002 Bar) Forum Shopping

•

2003).

The mere filing of several cases based on the same incident does not necessarily constitute forum shopping. The question is whether the several actions filed involve the same transactions, essential facts and circumstances. If they involve essentially different facts, circumstances and causes of action, there is no forum shopping (Paredes v. Sandiganbayan, G.R. No.108251,January31, 1996].

Q: Judgment was rendered against Eternal

Gardens ordering it to reconvey the cemetery to the rightful owners. Despite the final decision of the Supreme Court, Eternal Gardens was able to prevent the execution for 17 years, rendering the judgment ineffectual, They flied several petitions and motions for reconsideration with the trial court and the CA despite the fact that it would never prosper as the trial court's

The essence of forum shopping is the filing of ·I

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10, 2004).

1. Criminal action for 1. Summary dismissal a false certification of without prejudice XPN: when there non-forum shopping. is a willful or 2. Indirect contempt. deliberate forum· 3.Disciplinary shopping (Sec. 5, proceedings for the Rule 7, RRC] lawyer concerned 2. Direct contempt of • (Sec. 5, Rule 7, RRC) court on the party and his lawyer in case of willful and deliberate · forum-shopping (Sec. 5, Rule 7, RRC) 3. Disciplinary proceedings for the lawyer concerned Sec. 5, Rule 7 RRC

NOTE: If same evidence supports both actions, there is also forum shopping. It is an act of malpractice for i~ trifles with the courts, abuses their processes, degrades the administration of justice and adds to the already congested court dockets. What is critical is the vexation brought upon the courts and the litigants by a party who asks different courts to rule on the same or related causes and grant the same or substantially the same relief, which creates the possibility of conflicting decisions being rendered by different forums upon the same issues, regardless of whether the court, in which one of the suits was brought, has no jurisdiction over the action (Top Rate Construction and General Services v. Paxton Devt. Corp; C.R. .Vo. 151081, September 11, 2003).

1

Q: BPI and LSDC had a Joint Venture Agreement. LSDC misrepresented to have ownership over the lots sold and failed to deliver the title to the buyers. BPI filed a complaint against the LSDC for termination of contract, recovery of property and damages, with prayer for the issuance of a TRO and a writ of preliminary mandatory injunction before the RTC. With Atty. Deloria as counsel, LSDC filed an answer with counterclaim and a prayer for the issuance of a writ of preliminary mandatory injunction to direct BPI to execute the deeds of absolute sale and release the titles . to the lot buyers. However, LSDC'sapplication for a writ of preliminary mandatory injunction was denied. Representing Corazon Flores, a lot buyer, Atty. Delerla filed a complaint for execution of deeds of absolute sale and delivery of title against BPI before the HLURB, Should Atty. Deloria he administratively liable?

Possible consequences of forum shopping 1. Summary dismissal without prejudice unless there is a willful or deliberate forum-shopping (Sec. 5, Rule 7, RRC). 2. Penalty for direct contempt of court on the party and his lawyer in case of willful and deliberate forum-shopping (Sec. 5, Rule 7, RRC). 3. Criminal action for a false certification. of non-forum shopping and indirect contempt. 4. Disciplinary proceedings for the lawyer concerned (Sec. 5, Rule 7, RRC]. Compliance with the certification against forum shopping is separate from the avoidance of forum shopping itself The requirement to file a certificate of nonforum shopping is mandatory. Failure to comply cannot be excused by the fact that plaintiff is not guilty of forum shopping (Melo v. CA, C.R. No. 123686, November 16, 1999; Ong v. CA, G.R. No. 144581, July 5, 2002; Crisostomo v. Atty. Nazareno, A.C. No. 6677, June 10, 2014, PERLAS-BERNABE).

A: YES. Atty. Deloria violated Rule 12.02, Canon 12 of the CPR on forum shopping when he lodged a complaint before the HLURB praying for BPI to execute deeds of absolute sale and deliver the titles over the subdivided lots, which was the same subject matter in the preliminary mandatory injunction earlier denied by the RTC while the main civil case was still pending (Buena

False Certification against Forum Shopping vs. Forum Shopping · ·FALSE .

·.

FORUMSHOPPING

•

· . CERTIFICATION · PROPER .. ·~GAIN.ST F()RUM · · . . . . . . . SHOPPING . . .. thereof failure to comply: Violation warrants: warrants:

multiple suits involving the same parties for the same cause of action, either simultaneously or· successively, to obtain a favorable judgment (Foronda v. Atty. Guerrero, A.C. No. 5469, August

.:

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LEGAL ETHICS Vista Properties v. Att;y. Deloria, A.C. No. 12160, August 14, 2018, PERLAS-BERNABE).

Perez v. Lan tin, G.R. No. L-22320, May 221 1968). The writs of amparo and habeas data are extraordinary remedies which cannot be used as tools to stall the execution of a final and exeeutory decision in a property dispute (Castillo v. Cruz, G.R. No. 182165, November 25, 2009).

RULE 12.03, CANON12 A lawyer shall not, after obtaining

e:ttenslons 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.(2003 Bar)

RULE 12.05, CANON 12 A lawyer shall refrain from talking to his witness during a break or recess in the trial, while the witness is still under examination.

The court censures the practice of counsels who secure repeated extensions of time to file their pleadings and thereafter simply let the period lapse without submitting the pleading or even an explanation or manifestation of their failure to do so (Achacoso v. CA, G.R. No. L· 35867,June 28, 1973).

I •~

\'

The rule is deslgned.to uphold and maintain fair play with the oth¢r party and to avoid any suspicion that he is co.aching the witness what to say during the resumption of the examination (Agpalo, 2009).

Asking for extension of time must be in good faith. Otherwise, it is an obstruction of justice and the lawyer is subject to discipline (CPR Annotated, Phil]A).

Guidelines in interviewing witnesses (2001, 2005 Bar) 1. A lawyer

The same rule applies more forcefully to motion for continuance. Postponement is not a matter of right but of sound judicial discretion (Edrial v. Qui/at· Qui/at. G.R. No. 133625, September 6, 2000).

2.

RULE 12.04, CANON 12 A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse court processes.

3.

It is understandable for a party to make full use of every conceivable legal defense the law allows it. However, of such attempts to evade liability to which a party should respond, it must ever be kept in mind that procedural rules are intended as an aid to justice, not as means for its frustration (Santiago v. De Los Santos, G.R. No. L-20241, November 22, 1974).

4.

Once a judgment becomes final and executory, the prevailing party should not be denied the fruits of his victory by some subterfuge devised by the losing party. Unjustified delay in the enforcement of a judgment sets at naught the role of the courts in disposing justiciable controversies with finality (Aguilar v. Manila Banking Corporation, G.R. No. 157911, September 19, 2006).

5.

Q: May an attorney()alk to his witnesses before and during th~. trial? (2014 Bar)

Lawyers should not resort to nor abet the resort of their clients, to a series of actions and petitions to thwart the execution of a judgment that has long become final and executor (Cobb· UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTES

may interview a witness in advance of the trial to guide him in the management of the litigation; A lawyer may also interview a "prospective witness" for the opposing side in any civil and criminal action without the consent of opposing counsel or party; A lawyer must properly obtain statements from witnesses whose names were furnished by the opposing counsel or interview the employees of the opposing party even though they are under subpoena to appear as witnesses for the opposite side; If after trial resulting in defendant's conviction, his counsel has been advised that a prosecution witness has committed perjury, it is not only proper but it is the lawyer's duty to endeavor honorable means to obtain such witness' reaction, even without advising the public prosecutorof his purpose and even- though the case is pending appeal; and An adverse party, though he may be used as a witness, is not however a witness within the meaning of the rule permitting a lawyer to interview the witness of the opposing counsel.

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DUTIES AND RESPONSIJ3ILITIES OF A A: An attorney can talk with his witnesses before the trial, but it is unethical to do so if the client is already on the witness stand during the trlal(Agpalo, 2009). NOTE: Although the law does not forbid an attorney to be a witness and at the same time an attorney in a case, the courts prefer that counsel should not testify as a witness unless it is necessary and that they should withdraw from the active management of the case (PNB v. Uy Teng Piao, G.R. No. L- 35252, October 21, 1932). GR: A lawyer is not disqualified from being a witness {Santiago v. Rafanan, A.C. No. 6252, October 5, 2004). XPN: In. certain cases pertaining to privileged communication arising from an attorney-client relationship (Santiago v. Rafanan, A.C. No. 6252, October 5, 2004). RUl,E 12.06, CANON 12 A lawyer shall not knowingly assist a

witness to misrepresent impersonate another.

you were raped to hold the penis of Nolito , Borasl", '~t the time, when you were raped by Nolito Boros, is his penis hard or soft?", and "Did you see your uncle Cerilo after the accused stop pushing and pulling his penis to your vagina or while he was still in the process of pushing and pulling his penis to your vagina?"Did the lawyer of Nolito Beras violate Rule 12.077 A: YES. It must be stressed that in dealing with rape cases of children, especially those below . 12 years of age, due care must be observed by • the trial court in handling the victim. By subjecting her into explaining whether she was forced or intimidated is excessive. It is because proof of force and intimidation is unnecessary in statutory rape. Considering that there is a medical report substantiating the allegations made by the victim, the manner of examination of the victim must be tempered. Especially in this case since the child is only six years old who remains uncorrupted (People v. Boras, G.R. No.127495, December22, 2000).

himself or to

Sanctions to a lawyerwho instructs witness to perpetuate misrepresentation

•

LAWYER

•

RULE 12.08, CANON 12

A lawyer shall avoid testifying in behalf of his client, except: a 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.

Art 184, Revised Penal Code provides: The lawyer who presented a witness knowing him to be a false witness is criminally liable for "Offering False Testimony in Evidence." NOTE:The lawyer who is guilty of the above is both criminally and administratively liable.

The function of a witness is to tell the facts as he recalls them in answer to questions. The function of an advocate is that of a partisan. It is difficult to distinguish between the zeal of an advocate and the fairness and impartiality of a disinterested witness (Santiago v. Rafanan, A.C. No. 6252, October S, 2004).

Criminal liability of witness who commits misrepresentation The witness who commits the misrepresentation is criminally liable for" False Testimony" either under Art. 181, 182 or 183, Revised Penal Code, depending upon the nature of the case.

Matters to which a lawyer CANNOTtestify on[TARCC)

RULE 12.0'1, CANON 12

When, as an attorney, he is to Testify on the theory of the case; 2. When such would Adversely affect any lawful interest of the client with respect to which confidence has been reposed on him; 3. Havingaccepted a Retainer, he cannot be a witness against his client: 4. He cannot serve Conflictinginterests; and 1.

A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him. Q: Nolito Boras was convicted of statutory rape. The victim, a minor, testified and the manner of examination was excessive. The lawyer of Boras was asking questions like, "Didyou have any opportunity at the time

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LEGAL ETHICS 5.

Lawyers should not seek for opportunity to cultivate familiarity with judges. A lawyer who resorts to such practices of seeking familiarity with judges dishonors his profession and a judge who consents to them is unworthy of his high office.

When he is to violate the Confidence of his client.

Matters to whlch a lawyer CAN testify on [FETAD] 1.

2. 3.

4. 5.

.

6

On Formal matters, such as the mailing, authentication or custody of instrument and the like; Acting as an Expert on his fee; 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; Acting as an Arbitrator; and Deposition.

\I

It is improper for alttlgant or counsel to see a judge in chambers. and talk to him about a matter related to the case pending in the court of said judge (Austria v. Masoquel, G.R. No. 22536, August 31, 1967).

J requested Judge K to be a principal sponsor for the wedding of his son. Atty, J met Judge Ka month before during the IBP· sponsored reception to welcome Judge K into the community, and having learned that Judge K takes his breakfast at a coffee shop near his (Judge K's) boarding house, Atty. J made it a point to be at the coffee shop at about the time that Judge K takes his breakfast. Comment on Atty. J's acts. Do they violate the Code of Professional Responsibility? (2000 Bar) Q: Atty.

.: RELIANCE ON MERITS OF CASE AND· · AVOIDANCE FROM ANY IMPROPRIETY .: WHICH TENDS TO INFLUENCE OR GIVES. 'THE APl'F.J\RANCE OF INFLUENCE UPON . .

·.

.THl;;°COURTS

·

.

: • ..

CANON13 A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of lnfluendnq the court

A: YES. His actions violate the Code of Professional Responsibility. Canon 13 of the said Code provides that 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 of the same Code provides that a lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for, cultivating familiarity with judges. Atty. J obviously sought opportunity for cultiv,ating familiarity with Judge K by being at the coffee shop where the latter takes his breakfast, and is extending extraordinary attention to the judge by inviting him to be a principal sponsor at the wedding of his son.

It is unethical for a lawyer to give an appearance as if he is capable of influencing judges and court personnel. Giving of gifts to the judges are discouraged as it tend to give an appearance of influencing the conduct of judicial function or breeding familiarity with , judges (Antiqutera, 1992). It is reprehensible for a lawyer to wrongfully use the name of the law office for the purpose of "giving more weight and credit to the pleading." Motions and pleadings filed in courts are acted upon in accordance with their merits or lack of it, and not on the reputation of the law flnn or the lawyer filing the same (Rodica v. Ato/, Lazaro, et al. A.C. No. 9259, August 23,

RULE 13.02, CANON 13

A lawyer shci.l! not make · public statements in the media regarding a pending case teqding to arouse public opinion for or agaf nst a party.

2012).

Prejudicial Publicity

RULE 13,01, CANON 13

A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with judges.

There must be an allegation and proof that the judges have been unduly influenced, not simply that they might be, by barrage of publicity [CPR

Annotated, Phi[JA). The rule is designed to protect the good name and reputation of the judge and the lawyer

NOTE: The restriction does not prohibit issuances of statements by public officials

[Pineda, 2009). ,,,,,.

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• DUTIES AND RESPONSIBILITIES charged with the duty of prosecuting or defending actions in court (Lejano v. People, G.R. No.176389, December 14, 2010).

A lawyer shall not brook or invite interference by another branch or agency of the gove,.nment in the normal course of judicial proceedings.

In a concluded litigation, a lawyer enjoys a wider latitude of comment on or criticize the

The reason for this rule is that such action will

decision of a Judse of his 1ct1.11tlon, Thus, It has been held that a newspaper publication

be contr11.ry to the prtnclpl@ of !l!J'Rratton of powers,

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 (In re: Lozano, 54 Phil. 801 July 24 1930). 1

OF A LAWYER

All lawyers must uphold, respect and support . the independence of the judiciary. This • independence from interference is made to apply against all branches and agencies of the government (Funa, 2009).

1

Q: Dumbledore, a noted professor of commercial law, wrote an article on the subject of letters of credit, which was published in the IBP Journal. Assume that he devoted a significant portion of the article to a commentary on how the Supreme Court should decide a pending case involving the application of the law on letters of credit. May he be sanctioned by the Supreme Court? Explain. (2008 Bar)

NOTE: In the case of De Bumanlag

A: YES. Professor Dumbledore may be sanctioned by the Supreme Court. Rule 13.02 of the CPR provides that "a lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party." The Court in a pending litigation must be shielded from embarrassment or influence in its duty of deciding the case.

Characteristics relationship

•

v. Bumanlag,

the Supreme Court reprimanded Atty. Bumanlag for gross ignorance of law and of the Constitution in having asked the President to set aside by decree th~;court's decision which suspended him for twoyears from the practice of law. · · DUTlESAND RESPONSIBILITIES OF A :. ·. . LAWYER TO THE CLIENTS of

attorney

client

1. Strictly personal Prohibits the delegation of work without the client's consent 2. Highly confidential a. Communication made in the course otlawyers professional employment; and b. Communication intended to be confidential.

Q: Assume Dumbledore did not include any commentary on the case. Assume further after the Supreme Court decision on the case had attained finality, he wrote another IBP Journal article, dissecting the decision and explaining why the Supreme Court erred in all its conclusions. May he be sanctioned by the Supreme Court? Explain. (2008 Bar)

3. Fiduciary a. Hold in trust all moneys and properties of his client that may come into his possession; b. When a lawyer enforces a charging lien against his client, the relationship is terminated; and c. An attorney cannot represent adverse interest unless the parties consent to the representation after full disclosure of facts.

A: He may not be sanctioned by the Supreme Court. Once a case is concluded, the judge who decided it is subject to the same criticism as any other public official because his decision becomes public property and is thrown open to public consumption. The lawyer enjoys a wide latitude in commenting or criticizing the judge's decision, provided that such comment or criticism shall be bona fide and not spill over the bounds of decency and propriety.

Absence of a written contract will not preclude finding of an attorney-client relationship The absence of a written contract will not preclude a finding that there is a professional

RUJ.E 13.03, CANON 13

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relationship. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express orimplied (Toledo v. Callos, A.M. No. RTJ-05· 1900,January 28, 2005).

3. Implied- When there is no agreement, whether oral or written, but the client allowed the lawyer to render legal services not intended to be gratuitous without objection and client is benefited by reason thereof.

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. An acceptance of the relation is implied on the part of the attorney from his acting on behalf of his client in pursuance of a request from the latter

Rules protecting relatlonshlp 1.

(Hirach Bros. and Co. v. R. E. Kennington Co; 88 A. L. R., 1. cited in Hilado v. David, G.R. No. l-961, September 21, 1949).

2.

attorney-

3.

Commencement cllentrelatlonship

of

4. Case law instructs that a lawyer-client relationship commences when a lawyer signifies his agreement to handle a client's case and accepts money representing legal fees from the latter (Egger v. Duran, A.C. No. 11323,

5.

September 14, 2016; Samonte v. Atty. [umamii, A.C. No. 11668, July 171 2017, PERLAS-

Annotated, Phi/jA). Q: Uy engaged the services of Atty. Gonzales to prepare and file a petition for the issuance of a new certificate of title. Uy confided with him the circumstances surrounding the lost title and discussed the fees and costs. When the petition was about to be filed, Atty. Gonzales went to Uy's office and demanded a certain amount from him other than what they had previously agreed upon. Uy found out later that instead of filing the petition for the issuance of a new certificate of title, Atty. Gonzales filed a letter· complaint against him with the Office of the Provincial Prosecutor for "falsification of public documents." The

Formation of the lawyer·clientrelationship is

formed

1. Oral- When the counsel is employed without a written agreement, but the conditions and amount of attorney's fees are agreed upon. 2. Express- When the terms and conditions including the amount of fees are explicitly stated in a written document, which may be a private or public document Written contract of attorney's fees is the law UNIVERSITY OF SANTO TOMAS 2 0 1 9 G o L DEN N o TE s

•

Legal advice and instructions to clients to inform them of their rights and obligations; 2. Appearance for clients before public tribunals whlch.. possess power and authority to determine rights of life, liberty, and property according to law, in order to assist iij proper interpretation and enforcement of law; and 3. Preparation for 'clients of documents requiring knowledge of!egal principles not possessed by ordinary layman (CPR

August 24, 1989).

\, ... y

Best effort must be exerted by the attorney to protect his client's interest; The attorney must promptly account for any fund or property entrusted by or received for his client; An attorney cannot purchase his client's property or interest in litigation; The privacy of communications shall be upheld; and An attorney cannot represent a party whose interest is adverse to that of his client even after the termination of the relation.

1.

NOTE: If a person, in respect to his business affairs or any 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 acquiesce in such consultation, as when he listens to his client's preliminary statement of his case or gives advice thereon, then the professional employmerlt is regarded as established just as effective ·. as when he draws his client's pleading or advocates his client's cause in court (Dee v. CA, G.R. No. 77439,

/.-.)

attorney-client

Three principaltypes of professionalactivity of a lawyer [LAP]

BERNABEJ.

The lawyer-client relationship through the following:

the

68

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)

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DUTIES AND RESPONSIBILITIES OF A LAWYER letter-complaint contained facts and circumstances pertaining to the transfer certificate of title that was the subject matter of the petition which Atty. Gonzales was supposed to have filed. Should Atty. Gonzales be suspended for violating the lawyer-client relationship when he filed a complaint for "falsification of public documents" against his client using facts connected With the latter's petition?

Q: In the course of a drinking spree with Atty. Holgado, who has always been his counsel in business deals, Simon bragged about his recent sexual adventures with socialites known for their expensive tastes. When Atty. Holgado asked Simon how he manages to finance his escapades, the latter· answered that he has been using the bank deposits of rich clients of Banco Filipino where he works as manager,

•

A: NO, Evidently, the facts alleged in the Is Simon's revelation to Atty. Holgado covered by the attorney-client privilege? (2006 Bar)

complaint for "estafa through falsification of public documents" filed by Atty. Gonzales against Uy were obtained by Atty. Gonzales due to his personal dealings with Uy. Whatever facts alleged by Atty. Gonzales against Uy were not obtained by Atty. Gonzaies in his professional capacity but as a redemptioner of a property originally owned by his deceased son and therefore, when Atty. Gonzales filed the complaint for estafa against Uy, which necessarily involved alleging facts that would constitute estafa, Atty. Gonzales was not, in any way, violating Canon 21. Clearly, there was no attorney-client relationship between Atty. Gonzales and Uy. The preparation and the proposed filing of the petition was only incidental to their personal transaction (Uy v. At9'. Gonzales, A.C No. 5280, March 30, 2004).

A: NO. Simon's revelation to Atty. Holgado is not covered by the lawyer-client privilege. In the first place, it was not made on account of a lawyer-client relationship, that is, it was not made for the purpose of seeking legal advice. ln the second place, it was not made in confidence [Mercado v. vitriolo, A.C. No. 5108, May 26, 2005). In the third place, the attorney-client privileged does not cover information concerning a crime or fraud being committed or proposed to be committed. . · AVAlt,ABILITY OF SERVICE WITHOUT·· '· . · '. : DISCRIMINATION . . ·

Q: Atty, Marie consulted Atty. Hernandez whether she can successfully prosecute her case for declaration of nullity of marriage that she intends to file against her husband. Atty. Hernandez advised her in writing that the case will not prosper for the reasons stated therein. Is Atty. acquiescence (2006 Bar)

CANON14

A lawyer shall not refuse his services to the needy The poor and indigent should not be further disadvantaged by lack of access to the Philippine legal system.

Hernandez's subsequent to be Noel's counsel ethical?

Lawyer's right to decline employment

GR: A lawyer is not obliged to act as legal counsel for any person who may wish to become his client He has the right to decline employment (Navarro v. Meneses Ill, A.C. No. 313,January30, 1998)

A: NO. Atty. Hernandez's acquiescence

to be Noel's counsel will not be ethical. It will constitute a conflict of interests. When Atty. Marie consulted Atty. Hernandez' for advice on whether she can successfully prosecute her case for declaration of nullity of her marriage to Noel, and he advised her that it will not prosper, a lawyer-client relationship was created between them, although his advice was unfavorable to her. From that moment, Atty. Hernandez is barred from accepting employment from the adverse party concerning the same matter about which she had consulted him (Hilado v. David, 84 Phil. 569, 1.949).

XPNs: 1. A lawyer shall not refuse his services to the needy (Canori 14); ,, 2. He shall not decline to represent a person solely on account of the latter's race, sex, creed or status in life or because of his own opinion regarding the guilt of said person (Rule 14.01); 3. He shall not decline, except for serious and efficient cause like:

• 69

UN lVERSITY OF SANTO TOMAS¢ FACULTY OF CIVIL LAW

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, LEGAL ETHICS a. If he is not in a position to carryout effectively or competently; and • b. If he labors under a conflict of interest between him and the prospective client (Rule 14.03). 2.

constitutes a certificate by him that there is good cause to support it and that it is not interposed for delay, and willful violation of such rule shall subject him to disciplinary action; It is the attorney's duty to "counsel or

Legal aid cases

maintain such actions or proceedings only as appears to him to be Just and only such

Legal aid cases are those actions, disputes and controversies that are criminal, civil and

defenses

as he believes

to be honestly

debatable under the law"; 3.

administrative in nature ln whatever stage, wherein an indigent and pauper litigants need legal representation (Sec. 4(c), B.M. No. 2012). Rationale for establishing legal aid services

4. Legal aid is not a matter of charity. It is a means for the correction of social imbalances 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 so administered as to give maximum possible assistance to the indigent and deserving members of the community in all cases, matters and situations in which legal aid may be necessary to forestall an injustice

A lawyer Is not to encourage either the commencement or the continuance of an action or proceeding, or delay any man's cause, for any corrupt motive or interest; a'ld A lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or injure the opposite party or to work oppression or wrong.

Q: Is there an instance when a lawyer may accept losing case? (l 996, 2001, 2002, 2005 Bar) ;'

•

a. In criminal case1! b. In civil case?

(Public Service, Sec. 1, Art 1 of the IBP Guidelines on Legal Aid). A: a. A lawyer may accept a "losing" criminal

Q: Are there instances where a lawyer has the duty to decline employment? (1993 Bar) A: A lawyer should decline no matter how attractive the fee offered may be if its acceptance will involve: [RACCAAJ

1. A violation of any of the Rules of the legal 2.

3. 4.

5.

6.

profession; Advocacy in any manner in which he had intervened while in the government service; Nullification of a Contract which he prepared: Employment with a Collection agency which solicits business to collect claims: Employment, the nature of which might easily be used as a means of Advertising his professional services of his skill; or Any matter in which he knows or has reason to believe that he or his partner will be an essential witness for the prospective client

b.

.

RULE 14.01, CANON 14

Q: Atty, DD's services were engaged by Mr.

The attorney's signature in every pleading

fll-•) \. •• ,V

UNIVERSITY OF SANTO 2019 GOLDEN NOTES

TOMAS

SERVICES REGARDLESS OF PERSON'S . : . . STATUS·. · .':

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.

Reasons why a lawyer may not accept a "losing case" · 1.

case since an accused is presumed to be innocent until his guilt is proven beyond reasonable doubt. Furthermore, CPR provides that a lawyer shall not decline to represent a person because of his opinion regarding the guilt of said person. Otherwise, innocent persons might be denied proper defense (CPR, Rule 14.01) A lawyer may also accept a losing civil case, provided that, in so doing, he must not engage in dilatory tactics and must advise his client about the prospects and advantage of settling the case through a compromise to the extent of representing indigents, defenseless and the oppressed.

70

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DUTIES AND RESPONSIBILITIES OF A BB as defense counsel in a lawsuit. In the course of the proceedings, Atty. DD discovered that Mr. BB was an agnostic and a homosexual. By reason thereof, Atty. DD filed a motion to withdraw as counsel without Mr. BB's express consent. Is Atty. DD's motion legally tenable? Reason briefly (2004Bar) '

,•: ',·.,

LAWYER

therefrom by the court for sufficient shown (Sec. 31, Rule B, RRCJ.

lf

cause

Counsel de ofido 1. 2.

A: NO. Atty. DD's motion is not legally tenable. He has no valid cause to terminate his services. His client, Mr. BB, being an agnostic and homosexual, should not be deprived of his counsel's representation solely for that reason.

Members of the bar in good standing; Any person, resident of the province and of good repute for probity and ability, in localities without lawyers

•

Considerations in appointing a counselde oficio 1.

Gravity of offense

2. Difficulty of questions that may arise; and 3. Experience and ability of appointee

Q: A is accused of robbery in a complaint filed by B. A sought free legal assistance from the Public Attorney's Office {PAO) and Atty. C was assigned to handle his case. After reviewing the facts as stated in the complaint and as narrated by A, Atty. C is convinced that A is guilty. 'May Atty. C refuse to handle the defense of A and ask to be relieved? Explain fully. (2014 Bar)

Q: A criminal complaint was filed against Bermas for rape. The Prosecutor issued a certification that the accused has waived his right to preliminary investigation. On arraignment, the accused was brought before the trial court without counsel. The Court assigned a different counsel de officio to the case for four times. Each counsel failed to appear before the court. Despite the said events, the lower court convicted the accused of death penalty for the violation of the crime of rape. The defense counsel claimed that the accused was deprived of due process, is he correct?

A: NO. Rule 14.01 of the Code of Professional Responsibility provides that a lawyer shall not decline to represent a person solely on account · of his own opinion regarding the guilt of the said person. It is not the duty of the lawyer to determine whether the accused is guilty or not, but the judge's. Besides, in a criminal case, the accused is presumed innocent, and he is entitled to an acquittal unless his guilt is proven beyond reasonable doubt The role of the lawyer is to see to it that his constitutional right to due process is observed.

A: YES. The right to counsel must be more than just the presence of a lawyer in the courtroom or the mere propounding of standard questions and objections. The right to counsel means that the accused is amply accorded legal assistance extended by a counsel who commits himself to the cause 'for the defense and acts accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case, and his knowing the fundamental procedures, essential laws and existing jurisprudence.

: · SERVICES AS COUNSEL DE OFFICIO · · RULE 14.02, CANON 14 A lawyer shall not decline, except for serious and sufficient cause, ,;m appointment as counsel de oftcio or as

amicus curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid.

It is never enough that accused be simply informed of his right to counsel; he should also be asked whether he wants to avail himself of one and should be told that he can hire a counsel of his own choice if he so desires or that one can be provided to him at his request.

A court may assign an attorney to render professional aid free of charge to any party in 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

A counsel de officio must take the case not as a burden but as an opportunity to assist in the proper dispensation of justice. No lawyer is to be excused from this responsibility except only

71

UN lVERSITY OF SANTO TOMAS¢. FACULTY OF CIVIL LAW ·y·

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LEGAL ETHICS for the most compelling and cogent reasons.

counsel de oflcio, One of the grounds for such a motion was his allegation that with his appointment as Election Registrar by the COMELEC, he was not in a position to devote full time to the defense of the two accused. The denial by the Judge of such plea, notwithstanding the conformity of the defendants, was due to "its principal effect of delaying the case." Is the denial of Judge Climaco correct?

Obviously, in the instant case, the aforenamed defense lawyers did not protect, much less uphold, the fundamental rights of the accused. Instead, they haphazardly performed their function as counsel de officio to the detriment and prejudice of the accused Sevilleno, however guilty he might have been found to be after trial (People v. Bermas, C.R. No. 120420, April 21, 1999).

A: YES. The reluctance ~f Ledesma to comply . VALID GROUNDS FOR REFUSAL.TO SERVE

with his responsibilities as counsel de oficims not an adequate ground for the motion of withdrawal, Membership in the bar is a privilege burdened with a condition. For some lawyers especially .the neophytes in the profession being appointed as a lawyer is an irksome chore. Law is a profession dedicated to

RULE 14.03, CANON 14

A lawyer may not refuse to accept representation of an indigent client unless: a. He is in no position to carry out the work effectivelyor competently;

the ideal ofservice and not a mere trade. Thus, is made manifest the indispensable role of a member of the Bar in the defense of an accused.

b, Ile labors under a conflict of Interest between him and the prospective client or between a present prospective client

client ant! a

Such a consideration could have sufficed for Ledesma not being allowed to withdraw as counsel de oficio. For he did betray by his moves his lack of enthusiasm for the task entrusted to him, to put matters mildly. He did point though to his responsibility as an election registrar. Assuming his good faith, no such excuse could be availed. There is not likely at

Grounds of refusal of appointment to be a Counsel de Oficio 1. Too many de officio cases assigned to the lawyer (People v. Daeng, G.R. No. L-34091,

January 30, 1973); 2. 3.

4.

5.

6. 7.

present; and in the immediate future, an exorbitant demand on his time (Ledesma v. Climaco, G.R. No. L-23815,June 28, 1974).

Conflict of interest (Rule 14.03, CPR); Lawyer is not in a position to carry out the work effectively or competently {supra); Lawyer is prohibited from practicing law by reason of his public office which prohibits appearances in court; Lawyer is preoccupied with too many cases which will spell prejudice to the new clients; Health reasons; and Extensive travel abroad.

Q: May a lawyer decline a request for free legal aid to an indigent accused made by a chapter of the IBP? Explain. (2002 Bar)

Q: Will your answer be different if the legal aid is requested in a civil case? (2002 Bar) A: The answer will not be exactly the same, because in a civil case, the lawyer can also decline if he believes. the action or defense to be unmeritorious. H~ is ethically bound to maintain only actions and proceedings which appear to him to be ju~t and only such defenses which he believes tol be honestly debatable under the law.

will create and establish an attorney-client

relationship between them and may involve a violation of the rule prohibiting a lawyer from representing conflicting interest. Q: Judge Climaco issued an order denying Atty. Ledesma's motion to withdraw as

~...,,:;

UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTES

•

A: NO. Rule 14.02 ofthe CPRprovidesthat"alawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de officio or as arnlcus curiae or a requestfrom the IBP or any ofits chapter for rendition of free legal aid." He may, decline such appointment only for "serious and sufficient cause".

NOTE: A lawyer may refuse to handle cases due to these valid reasons. However, Rule 2.02 requires him to give advice on preliminary steps if he is asked until the client secures the services of counsel. He shall refrain from giving this preliminary advice if there is conflict of interest between a present client and a prospective one for extending such legal advice

(',.-.)

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J

DUTIES AND RESPONSJBILITIES OF A

LAWYER

interest, warm zeal in the maintenance and defense of his rights.

RULE 14.04, CANON 14

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. (2008 Bar)

it demands of an attorney

an undivided . allegiance, a conspicuous and high degree of • good faith, disinterestedness, candor, fairness, loyalty, fidelity and absolute integrity in all his

dealings and transactions with his clients and an utter renunciation of every personal

Q: Atty, Mariano DaJoyag, Jr, is Ernesto

Ramos' counsel. He failed to perfect their

advantage conflicting in any way, directly or indirectly, with the interest of his client (Oparel Sr. v. Aburia, A.C. No. 959,July 30, 1971).

appeal before ,the Supreme Court. He filed the petition for certiorari within the 20-day period of extension that he sought in his 2nd motion for extension, He learned that the period of extension granted in his 1st motion for extension was inextendible only after the expiration of the 2 periods of extension that he prayed for. A complaint for negligence and malpractice was filed against him, to which he pleaded good faith and excusable neglect of duty. Is Atty. Dajoyag Jr. guilty of neglect of duty?

If they find that their client's cause is defenseless, then it is their bounden duty to advise the latter to acquiesce and submit rather than to traverse the incontrovertible (Rollon v. Atty. Naraval, A.C. No. 6424, March 4, 2005). Q: Baens engaged the services of Atty. Sempio to file a case for Declaration of Nullity of Marriage against his wife. Despite receipt of P250,000 for legal expenses, Atty. Sempio failed to file the petition, and it was Baens' wife who filed the same. Atty, Sempio filed an Answer only after the 15day period stated i~ the Summons. Atty, Sempio also failed to 'make an objection on the petition on the!' ground of improper venue as neither Baens nor his wife were and are residents of Dasmariiias, Cavite. He never bothered to check the status of the

A: YES. Motions for extension are not granted as a matter of right but in the sound discretion of the court, and lawyers should never presume that their motions for extension or postponement will be granted or that they will be granted the length of time they prayed for. Further, regardless of the agreement Atty. Dajoyag, Jr. had with Ramos with respect to the payment of his fees, Atty. Dajoyag, Jr. owed it to Ramos to do his utmost to ensure that every remedy allowed by law is availed of. Rule 14.04 of the Code of Professional Responsibility

case and thus failed to discover and attend all the hearings set for the case. As a result, , the civil case was decided without Baens beJng able to present his evidence. Did Atty, Sempio violate the Code of Professional ·

enlolns every lawyer to devote his full attention, dlllgence, skills, and competence to every case that he accepts. Pressure and large volume of legal work do not excuse Atty. Dajoyag, Jr. for filing the petition for certiorari out of time (Ramos v. Dajoya9, Jr., A.C. No. 5174, February 28, 2002).

Responsibility7

,.

A: YES. In the first place, securing a copy of such notices, orders and case records was. within his control and is a task that a lawyer· undertakes, The preparation and the filing of the answer is a matter of procedure that fully fell within the exclusive control and responsibility of the lawyer. It was incumbent upon him to execute all acts and procedures necessary and incidental to the advancement of his client's cause of action.

awyer shall observe candor, fairness loyalty in all his dealings and nsactions with his clients . ~~~~~~~~~~~~~~ ..... A lawyer owes absolute ficlelityto the cause of his client He owes his client full devotion to his

Records further disclose that he omitted to update himself of the progress of his client's case with the trial court, and neither did he resort to available legal remedies that might ~ have protected his client's interest Although a lawyer has complete discretion on what legal strategy to employ in a case entrusted to him,

NOTE: The fact that his services are rendered without remuneration should not occasion a diminution in his zeal (Ledesma v, Climaco, G.R. No. L-23815,June 28, 1974). . · .CANDOR, FAJRNESSAND LOYALTYTO ·. .',, ~

:

.

· CLIENTS· .

·

•

CANON1S

73

ON lV.ERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW •••

•

LEGAL ETHICS he must present every remedy or defense within the authority of law to support his client's Interest When a lawyer agrees to take up a client's cause, he covenants that he will exercise due diligence in protecting the latter's rights.

Two-fold purpose of the rule 1.

2.

Evidently, the acts of the Atty. Sempio plainly demonstrated his lack of candor, fairness, and loyalty to his client as embodied in Canon 15 of the Code. A lawyer who performs his duty with diligence and candor not only protects the interest of his client; he also serves the ends of justice, does honor to the bar, and maintains the respect of the community to the legal profession (Baens v. Sempio, A.C. No. 10378, June 9, 2014). ·. ·

·: ... 'cONFIDENTIALITY.RULE:

Disclosure of a prospective client The foregoing disqualification rule applies to prospective clients of a lawyer. 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. It covers crimes and offenses already committed by the client (Mercado v. vitriolo, A.C. No. 5108, May 26, 2005)

: .'

Confidentiality It means the relation between lawyer and client or guardian and ward, or between spouses, with regard to the trust that is placed in the one by the other (Black's Law Dictionary 7th Edition 1990, 2004).

~

A lawyer shall preserve the confidences and

1.

It is one of the duties of a lawyer, as provided for In the Rules of Court, to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client (Sec. 20(e},

'

PRIVltEGF.D'COMMUNICATIONS

2.

' .

3. ,

A privileged communication is one that refers to information transmitted by voluntary act of disclosure between attorney and client in confidence and by means of which, in 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 the purpose for which it was given {Mer'cado v. Yitriolo, A.C. No. 5108, May 26, 2005).

Client identity Client identity is privileged where a strong probability exists that revealing the client's name would implicate that client in the very activity for which he sought the lawyer's advice (Rega la v. Sandiganbayan, G.R. No. 105938, September 20, 1996).

RULE 15.02, CANON 15

A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client. (2008 Bar)

\,.•,:)

UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTES

There is attorney-client relationship or a kind of consultancy requirement with a prospective client; The communication was ma.de by the client to the lawyer in the course of the lawyer's professional employment; and The communication must be intended to be confidential.

NOTE: The party who avers that the communication is privileged has the burden of proof to establish the existence of the privilege unless from the face'cf the document itself it clearly appears that)t is privileged. The m~re allegation that the matter is privileged is not sufficient (People v. lsteeper, G.R. No. 22783, December 3, 1924; Lapena]r; 2009).

Privileged communication

(.'-.\

REASON: To make the prospective client free to discuss whatever he wishes with the lawyer without fear that what he tells the lawyer will be divulged or used against him, and for the lawyer to be equally free to obtain information from the prospective client (Mercado v. vitriolo, A.C. No. 5108, May 26, 2005).

•

Requisites of privileged communication

secrets of his client even after the attorneyclient relation is terminated (Canon 21, CPR).

Rule 138, RRC).

To encourage ,1a client to make a full disclosure of the facts of the case to his counsel without fear, and To allow the lawyer freedom to obtain full information from his client (Pineda, 2009).

74

•

DUTIES AND RESPONSIBILITIES OF A LAWYER Characteristics communication

of

privileged 3.

1. Attorney-client privilege where legal advice is professionally sought from an attorney. 2. The client must intend the above communication to be confidential. 3. Attorney-client privilege embraces all forms of communication and action. 4. As a general rule, attorney-client privilege also extends to the attorney's secretary, stenographer, clerk or agent with reference to any fact acquired in such capacity. 5. The above duty is perpetual and communication is absolutely privileged from disclosure. 6. Persons entitled to claim privileges

4. 5. 6. 7.

client to be sent to a third person through his counsel. When the communication sought by client is intended to aid future crime or perpetration of fraud. When communication between attorney and client is heard by a third party. When there is consent or waiver of the client When the law requires disclosure. When disclosure is made to protect the lawyer's rights.

•

Even if the communication Is unprivileged, .the rule of ethics prohibits lawyers from voluntarily revealing or using to his benefit or to that of a third person, to the disadvantage of the client, the said communication unless the client consents thereto (Sec. 3, Rule 138,-A, RRC). NOTE:

Coverage of the attorney-client privilege Q: Atty. Vitriolo represented Rose Mercado 1.

in an annulment case filed by her husband. Thereafter, a criminal action against her was filed by the former for falsification of public document. According to Atty, Vitriolo, she indicated in the Certificates of Live Birth of her children that she is married to a certain Ferdinand Fernandez, and that their marriage was solemnized on April 1.1, 1979, when in truth, she ls legally married to Ruben Mercado and their marriage took place on April 11, 1978, Mercado claims that the criminal complaint disclosed confidential facts and information relating to the civil case for annulment handled by Vitriolo as her counsel. Did Atty. JulitoVitriolo violate the rule on privileged communication: between attorney and client?

Lawyer;

2. Client; and 3.

Third persons who by reason of their work have acquired information about the case being handled such as:

a. Attorney's secretary, b. c.

stenographer and clerk; Interpreter, messengers and agents transmitting communication; and An accountant, scientist, physician, engineer who has been hired for effective consultation (Sec. 24(b), Rule 130, RRCJ

Duration of privileged communication The privilege continues to exist even after the termination of the attorney-client relationship (Mercado v. Vitriolo, A.C. No. SlDB, May 26, 2005).

NOTE: The privilege character of the communication ceases only when waived by the client himself or after his death, by his heir or legal representative (La pen a, Jr. 2009). Instances when privileged

commnnicationis

not

A communication made by a client to a lawyer is not privileged in the following instances: After pleading has been filed because such becomes part of public records. 2. When communication was intended by the 1.

A: NO. The evidence on record fails to substantiate Mercado's allegations. She did not specify the alleged communication in confidence disclosed by Atty. Vitriolo. All of Mercado's claims were couched in general terms and lacked specificity. Without any testimony from Mercado as to the specific confidential information allegedly divulged by Atty. Vitriolo without her consent, it is difficult, if not impossible to determine if there was any violation of the rule on privileged communication. It is not enough to merely , assert the attorney-client privilege. The burden of proving that the privilege applies is placed upon the party asserting the privilege (Mercado v. Vitrilio, A.C. No. 5108, May 26, 2005). ': j~

75

U N(VERSITY OF ~ANTO TOMAS~ FACULTY O'F CIVIL LAW •••

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LEGAL ETHICS Q: Atty, Serafin Roto is the Corporate Secretary of a construction corporation that has secured a multl-mllllon Infrastructure project from the government. In the course of his duties as corporate secretary, he learned from the company president that the corporation had resorted to bribery to secure the project and had falsified records to cut implementing costs after the award of the project. The government filed a civil action to annul the Infrastructure contract and has subpoenaed Atty. Roto to testify against the company president and the corporation regarding the bribery. Atty. Roto moved to quash the subpoena, asserting that lawyer-client privilege prevents him from testifying against the president and the corporation. Resolve the motion to quash. (2013 Bar)

revealing a client's identity 1.

Due process considerations require that the opposing party should know their adversary; 2. The privilege pertains to the subject matter of the relationship; 3. The privilege begins to exist only after attorney-client relationship has been established hence, it does not attach until there is a client; and 4. The court has a right to know that the client whose privileged information is sought to be protected is flesh and blood (Regala v. Sandiqanbayan, G.R. No. 105938, September 20, 1996). . . ·.

. CONFLICT OF IN'{'EREST

. .

(1991, 1992, 1993, 1994, 1997,,1999, 2000, . zoni, '2002/2003, 2004, 2005, 2006, 2008 . · · · ·. Bar . ·

A: The motion to quash should be granted. , While it is true that being a corporate secretary does not necessarily constitute a lawyer-client relation, Atty. Roto may nevertheless be considered in the practice of law if part of his duties as a corporate secretary is to give legal advice to or prepare legal documents for the corporation. Thus, it is his duty as an attorney "to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client (Rule 138, Sec. 20, par.(e), Rules of Court).

RULE 15.01, CANON 15

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, CANON 15

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

Privileged communication rule as to the client's identity

,j

GR: ·A lawyer may not invoke privileged communication to refuse revealing a client's identity (Re9ala v. Sondiqanbayan, C.R. No. 105938, September 20, 1996).

Purpose of "conflict search" By conducting a conflict search, the lawyer will be able to determine, in the first instance, if he is barred from accepting the representation through conflicts with his present clients or the lawyer's own interest (CPR Annotated, Phil]AJ.

XPNs: 1. When there is a strong possibility that revealing the client's name would implicate the client in the activity for which he sought the lawyer's advice; 2. When disclosure would open the client to civil liability; or 3. When the government's lawyers have no case against an attorney's client and revealing the client's name would furnish the only link that would come from the chain of testimony necessary to convict him (Rega/a v. Sandiganbayan, C.R. No. 105938, September 20, 1996).

Three tests to determine existence of conflict of interest 1, Conflicting Duties - 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 possibility of such situation will develop. 2. Invitation of Suspicion - 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 or double-dealing in the

Reasons why a lawyer may not invoke privileged communication to refuse UNIVERSITY OF SANTO 2019 GOLDEN NOTES

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OF A LAWYER

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previous employment was used against the former client by the lawyer. The prohibition does not cover a situation where the subject matter of the present engagement is totally unrelated to the previous engagement of the attorney. Moreover, a mere allegation of the professional misconduct would not suffice to establish the charge, ~ecause accusation is not synonymous with guilt [Seares, Jr. v. Atty. Gonzales-Alzate, A.C. No. 9058, November 14, 2012).

Types of conflict of interest 1. Concurrent or multiple representations - Generally occurs when a lawyer represents clients whose objectives are adverse to each other, no matter how slight or remote such adverse interest may be.

Illustration: Existence of conflict of Interest 1.

Av. B A and 8 are present clients.

The tests for concurrent representations are:

or multiple 2.

v. D; E v. D

C is the present client and D is not a present client in the same case but is a present client in another case.

a.

Whether a lawyer is duty-bound to fight for an issue or claim in behalf of one client and, at the same time, to oppose that claim for the other client; b. Whether the acceptance of a new relation would prevent the full discharge of the lawyer's duty of undivided fidelity or loyalty to the client; c, Whether the acceptance of new relation would invite suspicion of unfaithfulness or double-dealing in the performance of the lawyer's duty of undivided fidelity and loyalty; and d. Whether, in the acceptance of a new relation, the lawyer would be called upon to use against a client confidential information acquired through their connection.

3.

F v, G; H v. G

F is the present client and G was a former client and the cases are related. 4.

I v.J; Kv.) I is the present client and J was a former client in a case that is unrelated.

5.

L, M, N v, 0, P, Q L, M, N are present clients but L and joins 0, P, Q. (People v. Davis)

M

Other instances of conflict of interest 1. A corporate lawyer cannot join a labor union of employees in that corporation; 2. A lawyer of an insurance corporation who

2. Sequential or successive representation- Involves representation by a law firm of a present client who may have an interest adverse to a prior or former client of the firm (CPR Annotated, Phil]A).

~. 4.

5.

0

C

NOTE: What is material in determining whether there is a conflict of interest in the representation is probability, not certainty of conflict (see discussion on disqualification or limitation of public officials in practicing· law, conqruent-interest representation conflict and adverse-interest conflict).

6.

There is no conflict of interest in a situation where a lawyer represents his present client against his former client, so long as no confidential information acquired during the

investigated an accident cannot represent the complainant/injured person; As a receiver of a corporation, he cannot represent the creditor; As a representative of the obligor, he cannot represent the obligee; and As a lawyer representing a party in a compromise agrrement, he cannot, subsequently, be [a lawyer representing another client w4.o seeks to nullify the agreement. A lawyer of a lawflrm cannot represent an opposing party of a former client of • another lawyer of the same lawfirm (Anglo v. Atty. Valencia et. al, A.C. No. 10567, February 25, 2015, PERLAS-BERNABE).

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Lawfirms must organize and implement a system to keep track of all cases assigned to

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LSDC's alleged misrepresentation of ownership over the lots sold and LSDC's eventual failure to deliver the title. Thus, Atty. Deloria's simultaneous representation of Mertguito and Corazon sans their written. consent after a full disclosure of the facts violated the rules on conflict of interest (Buena Vista Properties v. Atty. Deloria, A.C. No. 12160, August 14, 2018, PERLAS-BERNABE).

It ensures that every engagement it accepts stands clear of any potential conflict of interest, As an organization of individual lawyers which, engaged as a collective, assigns legal work to a corresponding handling lawyer, it behooves the law firm to value coordination in deference to the conflict of interest rule. Lack pf coordination intolerably renders its clients' secrets vulnerable to undue and even adverse exposure, eroding in the balance the lawyerclient relationship's primordial ideal of unimpaired trust and confidence (Anglo v. Atty. Valencia et. al, A.C. No. 10567, February, 25, 2015, PERLAS-BERNABE). Being a counsel-of-record of the other party is not a requisite to be guilty of ~ representing conflicting interests To be guilty of representing conflicting interests, a counsel-of-record of one party need not also be counsel-of-record of the adverse party. He does not have to publicly hold himself as the counsel of the adverse party. nor make his efforts to advance the adverse party's conflicting interests of record-although these circumstances are the most obvious and satisfactory proof of the charge. It is enough that the counsel of one party had a hand in the preparation of the pleading of the other party, claiming adverse and conflicting interests with that of his original client To require that he also be counsel-of-record of the adverse party would punish only the most obvious form of deceit and reward, with impunity, the highest form of disloyalty (Artueza v. Atty. Maderazo, A.C. No. 4354, April 22, 2002).

A: NO. Generally, an attorney is prohibited from representing parties with contending positions. However, at a certain stage of the controversy before it reaches the court, a lawyer may represent conflicting interests with the consent of the parties. A common representation may work to the advantage of said parties since a mutual lawyer, with honest motivations and impartially cognizant of the parties' disparate positions, may 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 said parties. A lawyer is entitled to have and receive the just and reasonable compensation for services rendered at the special instance and request of his client and as long as he is honestly and in good faith trying to serve and represent the interests of his client, the latter is bound to pay his just fees (Dee v. Court of Appeals, G.R. No. 77439, August 24, 1989).

Q: BPI and LSDC had a Joint Venture Agreement. LSDC misrepresented to have ownership over the lots sold and failed to deliver the title to the buyers. Atty. Deloria represented Menguito, the President . of LSDC, in a criminal case for estafa filed 'by Spouses Corazon and Roberto Flores, while he flied a complaint for delivery of title against BPI on behalf of Corazon Flores before the HLURB.Should Atty. Deloria 'be administratively liable? A: YES. Atty. Deloria violated Rules 15.01 and 15.03 of Canon 15. Atty. Deloria simultaneously represented Menguito and Corazon despite their conflictlng interests, considering that Corazon's estafa case against Menguito was premised on the latter's and

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Q: Mr, X engaged the services of Atty. Y regarding his brother's indebtedness to Caesar's Palace, a casino in Las Vegas. His services were reportedly contracted for P100,000. It was found that the debt was incurred by Ramon Sy, with Mr. X's brother merely signing for the chits. Atty. Y was able to free Mr.. X's brother from his indebtedness. Having thus settled the account of Mr. X's brother, Atty. Y sent several demand letters to Mr. X demanding the balance of PS0,000.00 as attorney's fees. Mr. X refused to pay and claimed, that at the time Atty, Y was rendering services to Mr. X, he was actually working "in the interest" and "to the advantage" of Caesar's Palace of which he was an agent and a consultant. This being the case, Atty. Y is not justified in claiming that he rendered legal services to Mr. X in view of the conflicting interests involved. Did Atty. Y violate the conflict of interest rule?

Rule when the lawyer of the corporation and the board of directors of such

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both sides of an issuJ. The proscription against representation of conflicting interest finds application where the conflicting interest arise with respect to the same general matter and is applicable however slight such adverse interest may be. It applies although the attorney's intention and motives were honest and he acted in good faith.

corporation is the same The interest of the corporate client is paramount and should not be influenced by any interest of the individual corporate officials. 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 would be tantamount to representing conflicting interests which is prohibited by the Code of Professional Responsibility (Horni/la v.

XPN: Representation of conflicting interest may be allowed where the parties consent to the representation after full disclosure of facts (Nakpil v. Valdez, A.C. No. 2040, March 4, 1998; Oro/a v. Atty. Ramos, A.C. No. 9860; September

Atty. Salunat; A.C. No. 5804,]uly 1; 2003).

11, 2013, PERLAS-BERNABE).

Q: Six months ago, Atty, Z was consulted by A> about a four-door apartment in Manila left by her deceased parents. A complained

NOTE:A lawyer may at a certain stage of the controversy and before it reaches the court represent conflicting interests with the express written consent of all parties concerned given after disclosure of the facts(Rule 15.03, CPR; Canon 6, CPR). The disclosure should include an explanation of the effects of the dual representation, such as the possible revelation or use of confidential information (Nakpil v. Valdez, A.C. No. 2040, March 4, 1998; Oro/a v.

that her two siblings, B and C, who were occupying two units of the apartment, were collecting the rentals from the other two units and refusing to give her any part thereof. Atty. Z advised A to first seek the intervention of her relatives and told her that if this failed, he would take legal action as A asked him to do. B asks Atty. Z to defend him in a suit brought by A against him (B) and C through another counsel. Should Atty. Z accept the case?

Atty. Ramos, A.C. No. 9860,· September 11, 2013, PERLAS-BERNABE).

An attorney owes loyalty to his client not only in the case in which he has represented him but also after relation of attorney and client has terminated (Sumangif v. Romana, G.R. No. 25, October25, 1949).

A: NO. When A consulted him about her complaint against B and C, a lawyer-client relationship was created between A and Atty. Z. Atty. Z cannot subsequently represent 8 against A in a matter he was consulted about. This constitutes conflict of interest It does not matter if Atty. Z is not handling the case for A.

The termination of attorney-client relation provides no justification for a lawyer to represent an interest 'adverse to or in conflict with that of the former client The client's • confidence once reposed should not be divested by mere expiration of professional employment (Anglo V., Att;y. Valencia et al, A.C. No. 10567, February 25, 2015, PERLAS· BERNABE).

Q: Should Atty. Z tell B that A consulted him earlier about the same case? Why? (2002 Bar)

A: YES. Rule 21.07 of the CPR provides that "a lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest" In this case, he has to reveal to B that he had been consulted by A on the case that B if offering to retain his services, in order to avoid a possible conflict of interest. ·

Instances when lawyers cannot represent conflicting interest even if the consent of both clients were secured

•

Where the conflict is: RULE 15.031 CANON 15

1.

A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the/acts.

2.

GR: An attorney cannot represent diverse interests. It is highly improper to represent

Between the attorney's interest and that of a client; or Between a private client's interests and that of the government or any of its instrumentalities.

Effects of representingadverseinterests [DJ-

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suspected of disloyalty by one client. His

1.

continuing to act in a double capacity strikes deeply in the foundation of the attorney-client relationship.

Disqualification as counsel of new client on petition of former client; 2. Where such is unknown to, and becomes prejudicial to the interests of the new client, a Judgment against such may, on that ground, be set aside; 3. The attorney's right to Fees may be defeated if found to be related to such conflict and such was objected to by the former client, or if there was a concealment and prejudice by reason of the attorney's previous professional relationship with the opposite party; 4. A lawyer can be held Administratively liable through disciplinary action and may be held Criminally liable for betrayal of trust

Q: Hocorma Foundation filed a complaint for disbarment against Atty. Funk who used to work as corporate secretary, counsel, chief executive officer, and trustee of the foundation. He also served as its counsel in several criminal . and civil cases. Complainant alleged that Atty. Funk filed an action for quieting ;or 'title and damages against Hocorma om' behalf of Mabalacat Institute using Information he acquired while with the foundation. As a defense, , Atty. Funk contended' that he was hired by Don Santos to serve as director and legal counsel. He emphasized that, in all these, the attorney-client relationship was always between Santos and him. He was more of Santos' personal lawyer than the lawyer of Hocorma Foundation. Did Atty. Funk betray the trust and confidence'ofa former client?

Q: Huey Company and Dewey Corporation are both retainer clients of Atty. Anama. He is the corporate secretary of Huey Company. He represents Dewey Corporation in three pending litigation cases. Dewey Corporation wants to file a civil case against Huey Company and has requested Atty. Anama to handle the case. What are the options available to Atty. Anama? Explain your answer.

I

A: YES. An attorney owes his client undivided allegiance. An attorney may not, without being guilty of professional misconduct. act as counsel for a person whose interest conflicts with that of his present or former client. This · rule is so absolute that good faith and honest • intention on the erring lawyer's part does not make it inoperative. The reason for this is that a lawyer acquires knowledge of his former client's doings, whether documented or not, that he would ordinarily not have acquired were it not for the trust and confidence that his client placed on him in the light of their relationship. It would simply be impossible for the lawyer to identify and erase such entrusted knowledge with faultless precision or lock the same into an iron box when suing the former client on behalf of a new one (Santos Ventura Hocorma Foundation, Inc. v. Atty. Funk. A.C. No. 9094, August 15, 2012).

A: The options available to Atty. Anama are: 1. To decline the case because to do so will constitute representing conflicting interests. It is unethical for a lawyer to represent a client in a case against another client in the same case. 2. To accept to file the case against Huey Company, after full disclosure to both retained clients and upon their express and written consent The written consent may free him from the charge of representing conflicting interests, because written consent amounts to a release by the clients of the lawyer's obligation not to represent conflicting interests.

of

Q: R is a retained counsel ABC BankErmita Branch. One day, his Balikbayan compadre B, consulted him about his unclaimed deposits with the said branch of ABC Bank, which the bank had refused to give to him clalmlng.that the account had become dormant. R agreed to file a case against the bank with the Regional Trial Court (RTC) of Manila. B lost the case, but upon the advice of R, lie no longer appealed the decision. B later discovered that R was the retained counsel of ABC Bank-Ermita

Q: If you were Atty. Anama, which option

would you take? Explain. A: If I were Atty. Anama, I will choose the first option and inhibit myself in the case as both entities are my clients. The conflict of interests between the contending clients may reach such a point that, notwithstanding their consent to the common representation, the lawyer may be

(11.-...)

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• DUTIES AND RESPONSIBILITIES OF A LAWYER Branch. Does B have any remedy? Discuss the legal and ethical implications of the problem. (2014 Bar)

(particularly the complainant) given after a full disclosure of the facts representing conflicting interests (Mabini Colleges, Inc. v. Atty. Pajarillo, A.C. No.10687,Ju/y 22, 2015).

A: Atty. R clearly violated the rule against representing conflicting interests (Rule 15.03, Code of Professional Responsibility). 8 may file an action to set aside the judgment on the theory that if a lawyer is disqualified from appearing as counsel for a party on account of conflict of Interests, he is presumed to have improperly and prejudicially advised and represented the party in the conduct of the litigation from beginning to end. He may also file an action for damages against Atty. R, aside from an administrative complaint due to his misconduct. He was prejudiced by the adverse decision against him, which he no longer appealed upon the advice of Atty. R. Q: Mabini Colleges, Inc. (complainant}, had a Board of Trustees which was divided into two opposing factions (Adeva Group and Lukban Group). The Adeva Group issued an unnumbered Board Resolution which authorized its members to apply for a loan with the Rural Bank of Paracale (RBP) in favor of the complainant. The Lukban Group opposed this.However, Atty. Pajarillo (respondent), acting as complainant's corporate secretary, sent a letter to RBP to assure the RBP of complainant's financial capacity to pay the loan.RBP eventually granted the loan application which was secured by a Real Estate Mortgage over the properties of the complainant. 3 years after, RBP moved to foreclose the Real Estate Mortgage. Complainant filed a complaint for Annulment of Mortgage with a Prayer for Preliminary Injunction against RBP. Respondent entered his appearance as counsel for RBP.Js Atty. Pajarillo guilty of representing conflicting interests when he entered his appearance as counsel for RBP? A: YES. Indeed, respondent represented conflicting interests in violation of Canon 15, Rule 15.03 of the Code of Professional Responsibility which provides that "fal lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts."Clearly, complainant was respondent's former client And respondent appeared as counsel of RBP in a case filed by his former client against RBP. This makes respondent guilty of representing conflicting interests since respondent failed to show any written consent of all concerned

RULE 15.04, CANON 15

A lawyer may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in setting the disputes. Q: Atty. Ramos was collaborating counsel for Heirs of AntonioOrola in seeking the removal of Emilio as administrator, then he entered his appearance as collaborating counsel for Emilio to seek his reinstatement as administrator. He was able to secure consent some of the Heirs of Antonio, The other Heirs of Antonio filed a disbarment complaint against him. Atty. Ramos contended that he had no knowledge of the fact that the late Antonio had other heirs and asserted that no information was disclosed to him by Maricar, one of the heirs. He clarified that his representation for Emilio in the subject case was more of a mediator, rather than a litigator. Is Atty. Ramos' contention valid? i.' ~ t,

A:NO. There is an absolute prohibition from representation with: respect to opposing parties in the same case. His previous appearances for and in behalf of the Heirs of Antonio was only a friendly accommodation cannot equally be given any credence since the rule holds even if the inconsistency is remote or merely probable or even if the lawyer has acted in good faith and with no intention to represent conflicting interests. Neither can his asseveration that his engagement by Emilio was more of a mediator than a litigator and for the purpose of forging a settlement among the family members render the rule inoperative. In fact, Rule 15,04, Canon 15 of the Code similarly requires the lawyer to obtain the written consent of all concerned before he may act as mediator, conciliator or arbitrator in settling disputes. Atty. Ramos was remiss in his duty to ~ make a full disclosure of his impending engagement as Emilio's counsel to all the Heirs of Antonio - particularly, Karen - and equally secure their express written consent before consummating the same. Besides, it must be pointed out that a lawyer who acts as such in settling a dispute cannot represent any of the parties to it (Oro/av. Atty. Ramos, A.C. No. 9860; September 11, 2013, PERLAS-BERNABE).

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RULE 15.0S, CANON 15

A lawyer when advising his client, shall

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LEGAL ETHICS 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.

tribunal or legislative body. Influence-peddling; ),/

It is improper for a lawyer to show in any way that he has connections and can influence any tribunal or public official, judges, prosecutors, congressmen and others, especially so if the purposeIs to enhance his legal standing and to entrench the confidence of the client that his case or cases are assured of victory(Agpalo,

Q: ConsorclaRollon engaged the services of Atty, Naraval in a case for collection of sum of money flied against her. After going over the documents she brought with her, Atty. Naraval agreed to be her lawyer and she was required to pay PS,000.00 for the filing and partial service fee. Atty. Naraval did not inform her that the said civil suit has been decided against her and which judgment has long become final and executory,

2009). Q: In a case for inhibition filed against Judge

Because of this, Rollon wanted to withdraw the amount she has paid and to retrieve the documents pertaining to said case. Unfortunately, despite several follow-ups, Atty. Naraval always said that he cannot return the documents because they were in their house, and that he could not give her back tile PS,000.00 because he has no money. Did Atty. Naraval fall to fulfill his undertakings?

Paas, it was found that her husband, Atty. RenerioPaas, was using his wife's office as his office address in his law practice. Judge Paas admitted that Atty. Paas did use her office as his return address for notices and orders in 2 criminal cases, lodged at the Pasay City RTC, but only to ensure and facilitate delivery of those notices, but after the cases were terminated, all notices were sent to his office address in Escolta. Was Atty. Paas' act of using his wife's office as his office address unprofessional and dishonorable?

A: YES. Despite his full knowledge

A: YES. By allowing Atty. Paas to use the

Atty'. Naraval was not able to act on the case.

of the finality based on the documents furnished' to him, Atty. Naraval withheld such vital information and did not properly apprise Rollon, He should have given her a candid and honest opinion on the merits and the status of the case but he withheld such vital information. He did not inform her about the finality of the adverse judgment Instead, he demanded PB,000.00 as "filing and service fee" and thereby gave her hope that her case would be acted upon.

•

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address of her court in pleadings before other court'>, Judge Paas had indeed allowed her husband to ride on her prestige for the purpose of advancing his private interest. Atty. Paas is guilty of simple misconduct because of using a fraudulent, misleading, and deceptive address that had no purpose other than to try to impress either the court in which his cases are lodged, or his client, that he has close ties to a member of the judiciary, in violation of the Code of Professional Responsibility. ,r

Rule 15.05 of the Code of Professional Responsibility requires that lawyers give their candid and best opinion to their clients on the merit or lack of merit of the case, neither overstating nor understating their evaluation thereof. Knowing whether a case would have some prospect of success is not only a function, but also an obligation on the part of lawyers. If they find that their client's cause is defenseless, then it is their bounden duty to advise the latter to acquiesce and submit, rather than to traverse the incontrovertible (Rollon v. Naraval, AC. No. 6424, March 4, 2005).

The need for relying 0.\1 the merits of a lawyer's case, instead of banking on his relationship with a member of the bench which tends to influence or gives! the appearance of influencing the court, cannot be overemphasized. It is unprofessional and dishonorable, to say the least, to misuse a public office to enhance a lawyer's prestige. Public confidence in law and lawyers may be eroded by such reprehensible and improper conduct [Paas v. Almarvez, A.M. No. P-03-1690, April 4, 2003).

RULE 15.06, CANON 15

lawyer shall not state or imply that he is able to influence any public official, A

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DUTIES AND RESPONSIBILITIES RULE 1S.07, CANON 1S A lawyer shall impress upon his client compliance with the laws and the principles a/fairness.

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noon." Did Atty. Mendoza unethical act?

commit any

A: YES.Atty. Mendoza made it appear that the judge is easily moved if a party resorts to dramatic antics such as begging and crying in order for their cases to be dismissed.

Q: Maria Cielo Suzuki entered into contracts

of sale and real estate mortgage with several persons. The sale · and mortgage transactions were facilitated by Atty. Erwfn Tiamson, counsel of the sellers. Suzuki paid P80,000 as her share fn the expenses fo1· registration. He retained in his possession the subject deeds of absolute sale and mortgage and the owner's copy of the title. However, he never registered the said documents and did not cause the transfer of the title over the subject property in the name of Suzuki. Atty. Tiamson said that he did no,t register the deed of sale to protect the interest of his client and if the same has been registered, he cannot give him the owner's duplicate copy until purchase price for the subject property has been fully paid and the real estate mortgage cancelled. Is Atty. Tiamson justified in not registering the transaction?

Atty. Mendoza made irresponsible advices to her clients in violation of Rule 1.02 and Rule 15.07 of the Code of Professional Responsibility. It is the mandate of Rule 1.02 that "a lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system." Rule 15.07 states that "a lawyer shall impress upon his client compliance with the laws and the principles of fairness:'!

.. Atty. Mendoza's improper advice only lessens the confidence of the public in our legal system. Judges must be free to judge, without pressure or influence from external forces or . factors according to the merits of a case. Atty. Mendoza's careless remark is uncalled for (Areola v. .Atty. Mendoza, A.C. No. 10135, January 2014).

is.

A: NO. Rule 15.07 obliges lawyers to impress upon their client's compliance with the laws and the principle of fairness. To permit lawyers to resort to unscrupulous practices for the protection of the supposed rights of their clients is to defeat one of the purposes of the State, the administration of justice. While lawyers owe their entire devotion to the interest of their clients and zeal in the defense of their client's right, they should not forget that they are, first and foremost, officers of the court, bound to exert every effort to assist in the speedy and efficient administration of justice. The client's interest is amply protected by the real estate mortgage executed by complainant. Thus, Atty. Tiamson failed to live up to this expectation (Suzuki v. Tiamson, A.C No. 6542, September 30, 2005).

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CONCURRENT PRACTICE OF ANOTHER PROFESSION ·

RULE 15.08, CANON 15 A lawyer who is engaged In another profession or occupation concurrently with the practice of Jaw shall make clear to his client whether he is acting as a lawyer or In another capadty: This rule is intended to avoid confusion; It is for the benefit of both the client and the lawyer (Funa, 2009). The lawyer should inform the client when he is acting as a lawyer and when he is not, because certain ethical considerations governing the client-lawyer relationship may be operative in one case and not in the other (Report of the IBP

Q: Areola alleged that during Prisoners' Week, Atty. Mendoza, visited the Antipolo City Jail and called all detainees with pending cases before the RTC where she was assigned, to attend her speech/lecture. Areola claimed that Atty. Mendoza stated the following during her speech:

Committee). A party's engagement of his counsel in another capacity concurrent with the practice of law is not prohibited, so long as the roles being assumed by such counsel is made clear to the client (New Sampaguita Builder Construction,

Inc. v. Philippine National Bank, G.R. No.148753, July 30, 2004).

"Kayongmgadetenidongmgababaena no bail ang kasosa drugs, IyakIyakanlangmnyost Judge Martin at palalayainna kayo. Malambotang puso

CLIENT'S MONJ:YS AND PROPERTIES

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· LEGAL ETHICS client. His unjustified withholding of Luis' money is a gross violation of the general morality and professional ethics (De Guzman v. Atty. Emmanuel Basa, A.C. No. 5554, June 29,

CANON16 A lawyer shall hold in trust all moneys and properties of his client that may come into his possession

2004). Prohibition of a l.awyer acquiring client's property

Money collected by the lawyer on a judgment favorable to his client constitutes trust funds and should be immediately paid over to the client (Palencia v. Linsanqan, A.C. No. 10557, July 10, 2018). While Section 37, Rule of the Rules of Court grants the lawyer a lien upon the funds, documents and papers of his client, which have lawfully come into his possession, such that he may retain the same until his lawful fees and disbursements have been paid, and apply such funds to the satisfaction thereof, the lawyer still has the responsibility to promptly account to his client for such moneys received. Failure to do so constitutes professional misconduct (Tanhueco v. De Dumo, A.M. No. 1437, April 25, 1989).

Pursuant to Canon 16 of the Code of Professional Responsibility.

iss

xxx (S) lawyers, with respect to the property and rights which may be the object of any litigation in which they take part by virtue of their profession." (see NCCJ

The lawyer's failure to turn over such funds, moneys, or properties to the client despite the latter's demands give rise to the presumption that the lawyer had converted the money for his personal use and benefit This failure also renders the lawyer vulnerable to judicial contempt under Section 25, Rule 138 of the Rules of Court (CPR Annotated, Phil]AJ

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Q: An adverse judgment was rendered in a civil case against Luis de Guzman. His counsel was Atty. Emmanuel Basa and he wanted to challenge the decision through a petition for certiorari. It was agreed that Luis will pay P15,000 for said legal service. Atty. Basa collected a down payment of PS,000. He did not seasonably file with the CA the required appellant's brief resulting in the dismissal of the appeal. Despite several extensions to file the appellant's brief, Atty. Basa failed to do so. Instead, he filed two more motions for extension. When he filed the appellant's brief, it was late, being beyond the last extension granted by the appellate court. Was Atty. Emmanuel Basa negligent in the performance of his professional duty to Luis de Guzman?

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NOTE:This prohibition is entirely independent of fraud and such need not be alleged or proven. Art 1491 (5) of the NCC applies only if the sale or assignment of the property takes place during the pendency of the litigation involving the client's property (Ramos v.

Ngaseo, A.C. No. 6210, P,ecember 9, 2004) '

Q: In an action to prevent the condominium developer from building beyond ten (10) floors, Judge Cerdo rendered judgment in favor of the defendant developer. The judgment became final after the plaintiffs failed to appeal on time. Judge Cerdo and Atty. Cocodrilo, counsel for the developer, thereafter separately purchased a condominium unit each from the developer. Did Judge Cerdo and Atty. Cocodrilo commit any act of impropriety or violate any law for which they should be held liable or sanctioned? (2013 Bar) A: NO. The prohibition imposed by the Civil Code, Art. 1491 (3), prohibiting judges and attorneys, and that contained in the Canons of Professional Ethics, Canon 10, with regard to purchase of any interest in the subject matter of litigation both refer only to instances where the property is still the subject of the litigation.

A: YES, he is guilty of gross misconduct, Where a client gives money to his lawyer for a specific purpose, such as to file an action or appeal an adverse judgment, the lawyer should, upon failure to take such step and spend the money for it, immediately return the money to his (.-.)

•

Furthermore, Article 1491 of the Civil Code states that: "The following persons cannot acquire or purchase, even at public or judicial auction, either in person or through the mediation of another:

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DUTIES AND RESPONSIBILITIES The prohibition does not apply to instances, such as in the problem, where the conveyance takes place after the judgment because the property can no longer be said to be the "subject of litigation" (Director of Lands v. Ababa, G.R. No. L-26096, 27 February 1979). ·..

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Court, Del Mundo discovered that Atty. Capistrano had yet to file petitions for her and only filed for Tuparan. Aggrieved, she asked for the reimbursement of her money. Atty. Capistrano negotiated that he could only return P63,oo.o.oo and in a staggered basis. After making a dated installment plan, Del Mundo agreed. Atty. Capistrano only paid PS,000 then disappeared. Del Mundo now institutes a disbarment complaint. Will Del Mundo's petition . prosper?

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RULE 16.01, CANON 1

A lawyer shall account for all money or property collected or received for or from the client.

A: YES, Del Mundo's petition will prosper. A lawyer is obliged to hold in trust money of his client that may come to his possession. As trustee of such funds, he is bound to keep them separate and apart from his own. Money entrusted to a lawyer for a specific purpose such as for the filing and processing of a case if not utilized, must be returned immediately upon demand. Failure to return gives rise to a presumption that he has misappropriated it in violation of the trust reposed on him. A~d the conversion of funds entrusted to ,. him constitutes gross violation of professional ethics and betrayal of public confidence in the legal profession (Del Mundo v. Capistrano, A.C. No. 6903, April 16, 2012, PERLAS-BERNABE).

A lawyer must be careful in handling money entrusted to him in his professional capacity, because of the high degree of fidelity and good faith expected on his part (Medina v. Bautista, A.C. No.190, September 26, 1964). Lawyer's inexcusable act of withholding the property of client and imposing unwarranted fees in exchange for release of documents deserve the imposition of disciplinary action (Miranda v. Carpio, A.C. No. 6281, September 26, 2011). Q: X sought assistance to the President of the IBP to enable him to talk to Atty. U who had allegedly been avoiding him for more than a year. Atty. U failed to turn-over to his client the amount given to him by X as settlement for a civil case. Is Atty, U guilty for violating Canon 16 of the CPR?

Fiduciary duty The principle that an attorney derives no undue advantage that may operate to the prejudice or cause an occasion for loss of a client refers to fiduciary duty. The relationship between the lawyer and the client is one of mutual trust and confidence of the highest degree (Maturan v. Gonzales, A.C. No. 2597, March 12, 1998).

A: YES, The Code of Professional Responsibility mandates every lawyer to hold in trust all money and properties of his client that may come into his possession. A lawyer's failure to return upon demand the funds or property held by him on behalf of his client gives rise to the presumption that he has appropriated the same for his own use to the prejudice of, and in violation of the trust reposed in him by, his client. The relation between attorney and client is highly fiduciary in nature. Being such, it requires utmost good faith, loyalty, fidelity and disinterestedness on the part of the attorney. Its fiduciary nature is intended for the protection of the client (Espiritu v. Atty. Ulep, A.C. No. 5808, May 4, 2005).

Instances when civil liability of lawyers arises 1.

2. 3. 4. S. 6.

Q: Del Mundo and Tuparan hired the services of Atty. Capistrano regarding their petitions for nullity of their marriages. Del Mundo paid Atty, Capistrano P78,500.00 and he assured her that he would file the petitions soon. After visiting the Clerk .of

Client is prejudiced by lawyer's negligence or misconduct; .'. Breach of ftduclary obligation; Civil liability to thtrd persons; Libelous words in''p!eadings; violation of communtcanon privilege; Liability for costs of suit (Treble Costs) when lawyer is made liable for insisting on client's patently unmeritorious case or interposing appeal merely to delay litigation

Remedy of the client

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LEGAL ETHICS Recover property from lawyer, together with its fruits, subject to client's returning to his lawyer the purchase price thereof and the legal interests thereon(Sotto v. Samson, G.R. No. 16917,July 31,1962),

Rule 16.01 of the CPR (Belleza v. Malaca, A.C. No. 7815,July 23, 2009).

Costs of Sult GR: Losing client and not the lawyer is liable for costs of suit in favor of prevailing party, the lawyer not being a party-litigant (Agpalo, 2009).

Exemption from liability A lawyer is exempted from liability for slander, libel or for words otherwise defamatory, published in the course of judicial proceedings, provided the statements are connected with, relevant, pertinent and material to the cause in hand or subject of inquiry(Tolentino v. Baylosls, G.R. No. L-15742,January31, 1961). NOTE: Test of relevancy - The matter to which the privilege does not extend must be palpably wanting in relation to the subject of controversy, that no reasonable man can doubt its relevancy or propriety (Uy v. Depasucat, .A.C. No. 5332,July 29, 2003).

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RULE 16.02, CANON 16

A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him.

Criminal liability of lawyers Failure of the lawyer.to account all the funds and property of his client which may come into his possession would amount to misappropriation which may subject him to disbarment on the ground of grave misconduct or a criminal prosecution for estafaunder Art. 315, par. l(b) of the RPC.

A lawyer may be held criminally liable if he commits any of the following: 1. 2.

3.

4.

5.

Causes prejudice to the client thru malicious breach of professional duty or thru inexcusable negligence or ignorance; Reveals client's secrets learned in lawyer's professional capacity thru malicious breach of professional duty or inexcusable negligence or ignorance; A lawyer who has undertaken the defense of a client or has received confidential information from said client in a case may be criminally liable for undertaking defense of opposing party in same cause without consent of first client (Art. 209, RPCJ; A lawyer who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with intent to cause such damage, shall use any false document may be held criminally liable therefore (Art 172, RPC); and A lawyer who appropriates his client's funds may be held liable for estafa.

Q: BPI filed two complaints for replevin and damages against Esphar Medical Center Inc. and its President Cesar Espiritu. Espiritu engaged the services of Atty. Juan Cabredo IV. While these cases were pending, the latter advised Esphar to remit money and update payments to the bank through the trial court. Accordingly, Esphar's representative delivered a total of PSl,161.00 to Atty. Cabredo's office. However, the management of Esphar found out that he did not deliver said money to the court or to the bank. Did Atty. Caredo commit a breach of trust? A: YES. His act amounted to deceit in violation of his oath. The relationship between a lawyer and a client is highly fiduciary; it requires a high degree of fidelity and good faith. Hence, in dealing with trust property, a lawyer should be very scrupulous. Money or other trust property of the client coming into the possession of the lawyer should be reported by the latter and account any circumstances, and should not be commingled with his own or be used by him (Espiritu v. Cabredo IV, A.C. No. 5831, January

NOTE: When. a lawyer collects or receives money from his client for a particular purpose, he should promptly account to the client how the money was spent His failure either to render an accounting or to return the money (if the intended purpose of the money does not materialize) constitutes a blatant disregard of ( •.-.)

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XPN: Where the lawyer insisted on client's patently unmeritorious case or interposed an appeal to delay litigation or thwart prompt satisfaction of prevailing party's just and valid claim, the court may adjudge lawyer to pay treble costs of suit (Agpalo, 2009).

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DELIVERY OF FUNDS

gives rise to the duty of fidelity to the client's cause. . The Canons of Professional Responsibility require that once an attorney agrees to handle a case, he should undertake the task with zeal, care, and utmost devotion,

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RULE 16.03, CANON 16

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 alljudgments and executions he has secured for his client as providedfor in the Rules of Court.

Atty. Cabrera's action projects his appalling indifference to his client's cause and a brazen disregard of his duties as a lawyer. Not only did he fail to render service of any kind, he also absconded with the records of the cases with which he was entrusted. Then to top it all, he kept the money complainant paid to him. Such conduct is unbecoming of a member of the bar, for a lawyer's professional and personal conduct must at all times be kept beyond reproach and above suspicion (Fernandez· v. Atty. Cabrera II, A.C. No. 5623, December 11, 2003).

Counsel cannot unilaterally retain client's property for his attorney's lien A counsel has no right to retain or appropriate unilaterally as lawyer's lien any amount belonging to his client which may come into his possession (Cabigao v. Rodrigo, 57 Phil. 20).

Q: Campos engaged the services of Atty. Estebal in securing tourist visas to US. Campos paid a total of P345,000; however, Atty. Estebal failed to apply or secure for him the U.S. tourist visa that he promised. Thus, he demanded for the return of his money. For failure to return his money, Campos Instituted an administrative case against Atty. Estebal. Will the case prosper?

NOTE: While this rule provides that the lawyer has the right to retain the funds of his client as may be necessary to satisfy his lawful fees and disbursements known as attorney's lien and his lien to the same extent on all judgments and executions he has secured for his client called charging lien, he is still duty bound to render an accounting of his client's funds and property which may come into his possession in the course of his professional employment In the application of attorney's lien, a lawyer shall give notice to his client otherwise, the same might be construed as misappropriation which may subject him to disciplinary action (Antiquiera, 2007).

A: YES, it will prosper. There is hardly any doubt that Atty. Bstebal's act of receiving such substantial sums from complainants without in the least intending to honor his word to secure the U.S. tourist visas that he promised to get for them constitutes a b,t,each of his professional responsibility. Rule , 16.03 provides that A lawyer shall deliver the funds and property of his client when due, or upon demand. By mismanaging the fund of his client and failure to return the money intended for securing US visas, Atty. Estebal failed to observe honesty and good faith in his dealings with them (Campos, Ir. Atty. Bstebal, A.C. No. 10443, Aug. 8, 2016).

. Q: Fernandez engaged the services of Atty. Cabrera II to handle the cases of her associates in Baguio City. After taking hold of the records of the cases that Fernandez entrusted to him and after getting initially paid for the services he would render, Atty. . Cabrera II suddenly disappeared and could no longer be located in his given address or in the addresses that Fernandez gathered. Did Atty. Cabrera II violate the Code of Professional Responsibility when he accepted the records and money of the complainant and thereafter failed to render his services?

Q: Sollman engaged the services of Atty. Amboy in connection with a partition case. No case was tlled as the other co-owners were amenable to the partition. Instead, Atty. Amboy just facilitated the issuance of the titles to the said property. Atty. Amboy then told Soliman that someone from the Register of Deeds can help expedite the issuance of the titles for a fee of PS0,000.00 which Soliman deposited to Atty. Amboy's bank account· as payment for the latter's contact. However, Atty. Amboy failed t?

A: YES. Acceptance of money from a client establishes an attorney-client relationship and

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LEGAL ETHICS deliver the respective certificates of title. Soliman claimed that Atty. Amboy thereafter refused to release the pertinent documents she gave to her for the processing of the titles to the property or give back the PS0,000.00 that was already paid to her. Did Atty. Amboy violate the Code of Professional Responsibility?.

appropriated the same for his own use in violation of the trust reposed to him by his client (jlnon v. Atty. Jiz, A.C. No. 9615, March S, 2013, PERLAS-BERNABE),

A: YES, Atty. Amboy violated the Code. Upon ~ inquiry, the supposed contact denied having received any amount from Atty. Amboy. In not returning the money to Soliman after a demand therefor was made following her failure to procure the issuance of the certificates of title, Atty. Amboy violated Canon 16, particularly Rule 16.03 thereof, which requires that a lawyer shall deliver the funds and .property of his client upon demand. A lawyer's failure to return upon demand the funds held by him on behalf of his client gives

rise to the presumption that he has appropriated the same for his own use in violation of the trust reposed in him by his Went (Soliman v. Amboy, A.C. No. 10568 January 13, 2015).

Q: In a retainership agreement, Atty. Lawsin received P15,000.00 for the litigation and P39,000.00 for land registration expenses for registration and delivery of land In Azucena's name within a period of 6 months. After the.lapse of more than three (3) years, Atty. '. Lawsin, without proper explanation, failed to fulfill his undertaking. Azucena confronted the Atty. Lawsin at his office and sent hiip two (2) demand letter.'> to withdraw the subject amount, but all to no avail. Thus, Azucena filed an administrative complaint. Atty. Lawsinposited the following defense: First, that he could not perform his undertaking under the retainer because the ownership of the subject land was still under litigation; and Second, that he was maligned by Azucena when she went to his office and • shouted and called him names in the presence of his staff. Is Atty. Lawsin administratively liable?

Q: Gloria Jlnon entrusted a land title to

Viola Jlnon, who refused to return it. Gloria

A: YES. Azucena's purported act of "maligning"

engaged the services of Atty. Jiz to recover it. Upon Atty. Jiz's instructions, Gloria remitted the amount of P45,000.00 to answer for the expenses of the transfer. However, when she inquired about the status of her case, she was surprised to learn that a certain Atty. Caras was handling the same. She discovered that Atty. Jiz has been collecting the; rentals from the property for the period june 2003 up to October 2004, which amounted to P12,000.00. When she demanded for the rentals, Atty. Jiz gave her only P7,000.00, explaining that the balance of PS,000.00 would be added to the expenses needed for the transfer of the title of property to her name. Should Atty. Jiz be admlnlstrattvely liable?

him does not justify the latter's failure to properly account for and return his client's money upon due demand. A lawyer must deal with his client with professional maturity and commit himself towards the objective fulfillment of his responsibilities. If the relationship is strained, the correct course of action is for the lawyer to properly account for his affairs as well as to ensure the smooth turnover of the case to another lawyer. Except only for the retaining lien exception under Rule 16.03, Canon 16 of the Code, the lawyer should not withhold the property of his client Unfortunately, absent the applicability of such exception or any other justifiable reason therefor, Atty. Lawsin still failed to perform his duties which perforce warrants his administrative liability. Furthermore, Atty. Lawsin also failed to give an adequate explanation for such non-performance despite the protracted length of time given for him to do so. As such, .•• these omissions equally showcase his non-compliance with the standard of proficiency required of a lawyer [Seqovia-Riboya v. Atty. Lawsin, A.C. No. 7965, November 13, 2013, ~ERLAS-BERNABE).

A: YES, Atty. Jiz violated Rule 16.03, Canon 16 when he failed to return, despite due demand, the funds allocated for the transfer of the title that he received from her. Money entrusted to a lawyer for a specific purpose, such as for the processing of transfer of land title, but not used for the purpose, should be immediately returned. A lawyer's failure to return upon demand the funds held by him on behalf of his client gives rise to the presumption that he has

(II-·)

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BORROWING OR LENDING

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DUTIES AND RESPONSIBILITIES RULE 16.041CANON 16

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commission. A case was filed by Frias against Atty. Lozada but despite the favorable decision, Atty. Lozada refused to return the money.

A lawyer shall not borrow money from his client unless the client's Interest 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 handlingfor the client

Atty. Lozada claimed that since she did not have enough money, Frias requested her to sell 01· mortgage the property and offered her a loan, commission and attorney's fees on the basis of the selling price. Did Atty. Lozada commit a violation of the Code of Professional Responsibility in asking for a loan from her client?

A lawyer who takes advantage of his client's financial plight to acquire the latter's properties for his own benefit is of the confidence of the public in the fidelity, honesty and integrity of the legal profession (Hernandez, Jr. v. Go A.C. No. 1526, January 31,

A: YES. Her act of borrowing money from a client was a violation of Canon 16.04 of the Code of Professional Responsibility.

2005).

Prohibition from BORROWINGmoney from client

A lawyer's act of asking a client for a loan, as what respondent did, is unethical. It comes within those acts considered as abuse of client's confidence. The canon presumes that the client Is disadvantaged by the lawyer's ability to use all the legal maneuverings to renege on her obligation (Frias v. Lozada, A.C.

GR: A lawyer is not allowed to borrow money from his client. XPN: The client's interests are fully protected by the nature of the case or by independent advice.

NO. 6656, December 13,'2005),

'\ NOTE: The principle ~ehind Rule 16.04 is to prevent the lawyer from taking advantage of his influence over tlie client or to avoid acquiring a financial interest in the outcome of the case(Agpalo, 2009; Junio v. Grupo, A.C. No.

Prohibition of LENDINGmoney to client GR: A lawyer is not allowed to lend money to his client.

5020, December 18, 2001).

XPN: When in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client (Rule 16.04, CPR).

Q: Atty. Dela Rosa served as the retained lawyer of Spouses Concepcion. When the pawnshop business of his clients failed to materialize, Atty. Dela Rosa, borrowed PZ,500,000.00, which he promised to return, with interest, five (5) , days ~ thereafter. Spouses Conception agreed to lend the sum to Atty. Dela Rosa, believing that he would be soon returning the money. Three (3) checks were issued in his name. Atty. Dela Rosa failed to pay Spouses Conception and did not heed their demand letter. Can Atty. Dela Rosa be adrnlnlstratively liable?

NOTE: The prohibition from lending is intended to assure the lawyer's independent professional judgment, for if the lawyer acquires a financial interest in the outcome of the case, the free exercise of his judgment may be adversely affected(Linsangan v. Tolentino, A.C. No. 6672, September 4, 2009). Q: Atty. Lozada was the retained counsel

and legal adviser of Frias. Atty. Lozada persuaded Frias to sell her house, the former acting as broker since she was in need of money. The prospective buyer paid P3,000,000.00 where Atty. Lozada took Pl,000,000.00 as her commission without Frias' consent. The buyer backed out from the sale and filed a case against Frias for the return of the purchase price. Frias claimed that her failure to return the money was because of Atty. Lozada's refusa! to give back the P1,000,000.00 she took as

A: YES. Atty. Dela Rosa is guilty of violating Rule 16.04 and Canon 7 of the CPR. Atty. Dela Rosa borrowed money from Spouses Conception who were his clients and whose interests, by the lack of any security on the • loan, were not fully protected. Owing to their trust and confidence in Atty. Dela Rosa, they relied solely on the former's word that he wJII return the money plus interest within five (5)

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LEGAL ETHICS days. However, Atty. Dela Rosa abused. the same and reneged on his obligation, giving his previous clients the runaround. Furthermore, in unduly borrowlng money from the Spouses and by blatantly refusing to pay the same, Atty. Dela Rosa abused the trust and confidence reposed in him by his clients, and, in so doing, failed to uphold the integrity and dignity of the ~ legal profession (Concepcion v. Atty. Dela Rosa, A.C. No. 10681, February 3, 2015, PERLAS· BERNABE). Return of money in an administrative case 1. If the money is received in a transaction separate and distinct from, and not intrinsically Jinked to his professional engagement - the Court cannot order the return of the money. The clients must institute a separate civil action to recover it Ex. Money from a Joan 2. If the money is received in a transaction • intrinsically linked to his professional engagement- the Court can order the return of. the money Ex. Filing fees, acceptance fees, attorney's fees Q: In an administrative case against Atty. Dela Rosa, the IBP Resolution recommended the return of PZ,500,000.00 received as a loan from Spouses Concepcion. Is the IBP correct?

CANON 17

Q: Matias Lagramada residing with his uncle, Apo'IonioLagramada, was invited by the latter to accompany him to the police station, supposedly to pick up a refrigerator they were to repair. Upon their arrival there, Matias was Immediately taken in and locked behind bars, Two sets ofinformation were filed against him only 10 months after the first day of his'. incarceration. With the assistance of counsel, Matias pleaded not guilty when arraigned, without raising the invalidity of the arrest. Was the case properly handled? A: NO. Lawyers owe fidelity to the cause of their clients and must be mindful of the trust and confidence reposed in them. Matias' counsel, in the spirit of safeguarding his client's rights, should have taken the necessary steps to correct the situation. However, he allowed his client to enter a plea during the latter's arraignment without raising the invalidity of

of P48,000.00 intended to cover the filing fees for the action to be Instituted. Despite the payment, Atty. Agcaoili failed to file an UN I VE RS I TY O F SA NT O TOM AS GOLDEN NOTES

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· FIDEUTV TO CLIENTtS CAUSE

A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him.

Q: Maglente gave Atty. Agcaoili the amount

\~/

A: YES. While the Court has previously held that disciplinary proceedings should only revolve around the determination of the respondent-lawyer's administrative and not his civil liability, it must be clarified that this rule remains applicable only to claimed liabilities which are purely civil in nature- for instance, when the claim involves moneys received by the lawyer from his client in a transaction separate and distinct from and not intrinsically linked to his professional engagement. Since the amount was intended to answer for ·filing fees which is : intimately • related to the· lawyer-client relationship between Maglente and Atty. Agcaoili, the Court finds the return thereof to be in order (Mag!ente v. Atty. 'Agcaoili, A.C. No. 10672, March 18, 2015, PERLAS-BERNABE). ·.

A: NO. It is settled that in disciplinary proceedings against lawyers, the only issue is whether the officer of the court is still fit to be allowed to continue as a member of the Bar. In such cases, the Court's only concern is the determination of lawyer's administrative liability; it should not involve his civil liability for money received from his client in a transaction separate, distinct, and not intrinsically linked to his professional engagement Here, Atty. Dela Rosa received the P2,500,000.00 as a loan from Spouses Concepcion and not in consideration of his professional services. Hence, the IBP's recommended return of the sum lies beyond the ambit of this administrative case, and thus cannot be sustained (Concepcion v. Atty. Dela Rosa, A.C. No. 10681) February 3, 2015, PERLAS· BERNABE).

{n)

action in court. •!When confronted, Atty, Agcaoili explained that the money given to him was not enough to fully pay for the filing fees in court, Thus, Maglente asked for the return of the money, but Atty. Agcaoili claimed to have spent the same and even demanded more money. Can the Court order Atty. Agcaoili to return the money?

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DUTIES AND RESPONSIBILITIES OF A LAWYER arrest. Thus, the former effectively waived his client's right to question its validity. Defense counsels are expected to spare no effort to save the accused from unrighteous incarcerations.

the settlement of her husband's interest ln the company. Prior to a scheduled meeting, Pitcher was prevailed upon by Atty. Gagate to put a paper seal on the door of the premises. Bantegul expressed disappointment over these actions then asked them to leave and refused to give them a duplicate key. Atty. Gagate, without the consent of Bantegui, caused the change in the lock of the Consulting Edge office door, which prevented the employees thereof from entering and carrying on the operations of the company. Bantegui filed a complaint for grave coercion. The Prosecutor's Office .. 1 issued a Resolution finding probable cause to charge Pitcher and Atty. Gagate. ~tty. Gagate advised Pitcher to go into hidtng until he had filed the motionsagsintsBantegui in court. However, Atty. Gagate abandoned the grave coercion case and stopped communicating with Pitcher. Is he guilty of violating the CPR?

Matias' counsel should have not only perfunctorily represented his client during the pendency of the case.but should have kept in mind his· duty to render effective legal assistance and true service by protecting the latter's rights at all times (People v. Lagramada, G.R. Nos.146357 & 148170, August 29, 2002).

Q: Complainants engaged the services of a residential lot they acquired in Bonbon, Nueva Caseres. They alleged that Atty. Guaren took all the pertinent documents relative to the titling of their. lot; that they always reminded Alty, Guaren about the case and each time he would say that the titling was in progress: that they became bothered by the slow progress of the case so they demanded the return of the money they paid. Despite the acceptance of P7,000, Atty. Guaren failed to perform his obligation and allowing 5 years to elapse without any progress in the titling of complainants' lot. Did Atty. Gi.laren violate the Code of Professional Responsibility? Atty. Guaren for the titling of

A: YES. Atty. Gagate violated Canon 17 when he failed to exercise the required diligence in handling Pitcher's cause: First, he failed to represent her competently and diligently by acting and proffering professional advice beyond the proper bounds of law; and, Second, he abandoned his client's cause while the grave coercion case against them was pending. He remained unmindfulof his client's trust in him - in particular, her trust that Atty. Gagate would only provide her with the proper legal advice in pursuing her interests. Atty. Gagate's also grossly and inexcusablely neglected his client, leaving Pitcher totally unrepresented in ' a criminal case. Atty. Gagate's act of advising Pitcher to go into hiding in order to evade arrest in the criminal case can hardly be maintained as proper legal advice since the same constitutes-transgression of the ordinary processes of laJ(Pitcher v. Gagate, A.C. No. 9532, October 8, i013, PERLAS-BERNABBJ.

A: YES. The Supreme Court reiterated that the practice of law is not a business. It is a profession in which duty to public service, not money, is the primary consideration. Lawyering is not primarily meant to be a money-making venture, and law advocacy is not a capital that necessarily yields profits. The gaining of a livelihood should be a secondary consideration. The duty to public service and to the administration of justice should be the primary consideration of lawyers, who must subordinate their personal interests or what they owe to themselves. Atty. Guaren breached his duty to serve his client with competence and diligence when he neglected a legal matter entrusted to him. Thus, Atty. Guaren violated Canons 17 and 18 of the Code of Professional Responsibility and was suspended from the practice of law for six months [Brune: v. Guaren, A.C. No. 10164,

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COMPETENCE AND DILIGENCE

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CANON18

A lawyer shall serve his client with competence and diliaence.

March 10, 2014).

• 'Diligence is the attention and care required of a person in a given situation and is the opposite of negligence. It is axiomatic in the practice of law that the price of success Is eternal diligence to the cause of the clieht (Edquibal v. Ferrer,

Qi In order to settle the affairs of her deceased husband, Pitcher engaged the services of Atty. Gagate. Pitcher and Atty. Gagate met with Bantegui, a major · stockholder of Consulting Edge, to discuss

A.C. No. 5687, February 3~ 2005).

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dtllgence

required

in

the

considering the serious consequence of failure to attend the scheduled preliminary conference (Montecillo v. Atty. Gatchalian, A.C. No. 8371,Junc 28, 2017, PERLAS-BERNABE).

The legal profession demands of a lawye_r that degree of vigilance and attention of a good father of' a family (lapena, 2009) or ordinary pater familias (Pineda, 2009). He is not required to exercise extraordinary diligence

alleged that she received summons from the NLRC relative to an illegal dismissal case filed by four (4) persons claiming to be workers in her small banana plantation. Consequently, Samonte engaged the services of Atty. [umamil, Despite constantly reminding him of the deadline for the submission of her position paper, Samonte discovered that Atty. Jumamil still failed to file the same. The Labor Arbiter rendered a Decision based on the evidence on record, whereby Samonte was held liable to the workers in the total amount of P633,143.68. Should Atty. Jumamil be held admtnistratlveiy liable?

(Edquibal v. Ferrer, Jr., A.C. No. 5687, February

3,2005). Q: Spouses Montecillo are defendants in an

ejectment case. After filing their Answer to the complaint, Spouses Montecillo received a notice from the court setting the preliminary conference. When complainants went to Atty. Gatchalian's office to confer with him about it, the latter told them that he did not receive the notice and that he could not attend tl~e preliminary conference due to a conflict in his schedule. He allegedly advised them not to attend anymore as he would arrange with the court for a new schedule when he is available. Thereafter, they found out that Atty. Gatchalian not only failed to attend the scheduled preliminary conference, but also failed to take any steps to have it cancelled or reset to another date. They also learned that he did receive the notice setting the date of the preliminary conference. Should Atty. Gatchalian be held administratively liable?

A: YES. The relationship between a lawyer and his client is one imbued with utmost trust and confidence. In this regard, clients are led to expect that lawyers would be ever mindful of their cause, and accordingly, exercise the required degree of diligence in handling their affairs. Accordingly, lawyers are required to maintain, at all times, a high standard of legal proficiency, and to devote their full attention, skill, and competence'jo their cases, regardless of their importance, a:nd whether they accept them for a fee or fol free (Samonte v. Atty. [umamil, A.C. No. 11668,july 17, 2017, PERLAS· BERNABE). \

A: YES. Jurisprudence provides that the lawyer's duties of competence and diligence include not merely reviewing cases or giving sound legal advice, but also consist of properly representing a client before any court or tribunal, attending scheduled hearings and conferences, preparing and filing the required pleadings, prosecuting handled cases with reasonable dispatch, and urging their termination without waiting for the client ur the court to prod him to do so. A lawyer's negligence in fulfilling these duties subjects him to disciplinary action. Here, Atty. Gatchalian failed to exercise the diligence required of lawyers in handling Sps. Montecillo's case. Based on the records, he failed to file the necessary motion to postpone the hearing due to a conflict in his schedule, and as a result, Sps. Montecillo lost their opportunity to present their evidence in the ejectment case. As the counsel in the ejectment case, Atty. Gatchalian was expected to exercise due diligence. He should have been more circumspect in preparing and filing the motion, UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTES

•

Q: Samonte

Q: In a criminal case for rape with homicide, the accused pleaded guilty. However, the three PAO lawyers assigned as counsel de oficiodid not advise their client of the consequences of pleading guilty; one PAO lawyer left the courtroom during trial and thus was not able to cross-examine the prosecution witnesses. The other postponed the presentation of evidence for the defense, and when he appeared, he said he would rely solely on the plea of guilty, believing that it would lower the penalty to reclusion perpetua. Should the three PAO lawyers be disciplined? A: YES. All three (3) of them displayed manifest disinterest on the plight of their client. They lacked vigor and dedication to their work. Canon 18 of the Code of Professional Responsibility requires every lawyer to serve his client with utmost dedication, competence and diligence. He must

92

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DUTIES AND RESPONSIBILITIES not neglect a legal matter entrusted to him, and his negligence in this regard renders him administratively liable. Obviously. in the instant case, the defense lawyers did not protect, much less uphold, the fundamental rights of the accused. Instead, they haphazardly performed their function as counsel de officio to the detriment and prejudice of the accused Sevilleno, however guilty he might have been found to be after trial (People v. Sevilleno, G.R.

OF A LAWYER

Professional Responsibility(Sanchei v. Aguilos, A.C. No.10543, March 16, 2016). Q: Ferrer was accused of raping his 11-year· old stepdaughter. Fer:rer's counsel of record was PAO's Atty. Macabanding. During the pre-trial, both of them failed to appear. Ferrer was considered by the court as having jumped bail. Trial in absentia followed where Ferrer was assisted by another PAO lawyer, Atty. Alonto. Atty, Macabanding did not appear in all the subsequent hearings of the case. He did not inform the court of his whereabouts. Ferrer was found guilty beyond reasonable doubt of the crime charged and imposed upon him the death penalty. Did Atty. Macabanding live up to the demands expected from a counsel de oficiol

No.12905.B, March 29, 199~}.

Q: Sanchez charged Atty. Aguilos with misconduct for the latter's refusal to return the amount she had paid for his professional services, She avers that Atty. Aguilos demanded the full payment of his fee before working on the case; that the lawyer, contemplated to file a petition for legal separation instead of petition for annulment, of which the latter is the main consideration for his professional employment yet Atty, Aguilos further asked for a higher acceptance fee for the latter. Sanchez subsequently withdrew the case and demanded the refund of the amounts paid less the amounts corresponded to the services he already performed but Atty. Aguilos refused. Is Atty, Aguilos liable for misconduct?

A: NO. Canon 18 of the CPR requires every lawyer to serve his client with utmost dedication, competence and diligence. He must not neglect a legal matter entrusted to him. For all intents, purposes and appearances, Atty. Macabanding abandoned his client, an accused who stands to face the death penalty. Ferrer was not properly and effectively accorded the right to counsel. While he faced the daunting task of defending an · accused that had jumped bail, this unfortunate development is not a justification to excuse him from giving his heart and soul to the latter's defense. The exercise of their duties as counsel de oficiomeant rendering full meaning and reality to the constitutional precepts protecting the rights of the accused (People v. Ferrer, G.R. No. 148821, July 18,

A: YES. Aguilos was liable for misconduct, and he should be ordered to return the entire amount received from the client. As the foregoing findings reveal, he did not know the distinction between the grounds for legal separation and for annulment of marriage. Such knowledge would have been basic and expected of him as a lawyer accepting a professional engagement for either causes of action. The case unquestionably contemplated by the parties and for which his services was engaged, was no other than an action for annulment of the complainant's marriage with her husband with the intention of marrying her British fiancee. They did not contemplate legal separation at all, for legal separation would still render her incapacitated to re-marry. That the respondent was insisting in his answer that he had prepared a petition for legal separation, and that she had to pay more as attorney's fees if she desired to have the action for annulment was, therefore, beyond comprehension other than to serve as a hallow afterthought to justify his claim for services rendered. Aguilos failed to live up to the standards imposed on him as an attorney. He thus transgressed Canon 18, and Rules 18.01, 18.02 and 18.03 of the Code of

•

2003).

Instances of Lawyer's lack of Diligence and their resulting consequences 1.

o

Lawyer failed to file his client's position paper.which caused the client to be default iri an ejectment case. The · complainant's appeal was also denied since the lawyer failed to file an appeal memorandum. The lawyer was DISBARRED (Enriquez v. Atty. Lavadia, A.C. No. 5686,June 16, 2015).

2.

93

Lawyer failed to file his client's position paper and he did not inform the complainant that his case was dismissed by the court. The lawyer was suspended from practice of law

UN [VERSJTY OF SANTO TOMAS¢.· , FACULTY OF CIVIL LAW ·y•

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LEGAL ETHICS for three

years {Olvida Gonzales, A.C. No. 5732, June 3.

4.

5.

6.

,

v.

Atty.

u, 201S).

The lawyer's services were availed in order to file a petition for adoption of a min~r child but he failed to perform anything related to the case despite the lapse of one year. The lawyer was SUSPENDED for a period of three years {Sps. Lopez v. Atty. Limos, A.C. No. 7618, February 2, 2016, PERLAS· BERNABE). Lawyer failed to file a motion for reconsideration on behalf of his client and further neglected · to regularly · update his clients on the status of the case. The lawyer was SUSPENDEDfor • two years (Ramiscal v. A~. Orro, A.C. No. 10945, February 23, 2016). Lawyer failed to immediately seek any remedy to further the interests of his client after discovering that the court waived his client's right to cross· examine a prosecution. witness. His motion for reconsideration was denied for being filed way beyond the reglementary period. The lawyer was SUSPENDED for three months {Layos v. Atty. Villanueva, A.C. No. 8085, December 1, 2014, PERLAS·BER!-.JABE). Lawyer failed to act on his client's multiple cases, including failure. to appear in the hearing for preliminary investigation on his client's estafa case. The lawyer was SUSPENDED for six months (Martin v. Atty. Dela Cruz, A.C. No. 9832, September 4, ~017, PERLAS· BERNABE).

.

COLLABORATING COUNSEL

He is therefore directed not to take legal services, which he knows or should know he is not qualified or competent to render except if his client consents, the lawyer can take as collaborating counsel another lawyer who is competent on the matter (Agpalo, 2009). Q1 When is professional incompetence a ground for disbarment under the Rules of Court? Explain. (2010 Bar) A: Professional incompetence of a lawyer may • be a special ground for disbarment if his incompetence is sototal, gross and serious that he cannot be entrusted with the duty to protect the rights of his clients. "A lawyer shall not undertake a legal service where he knows or should know that he is not qualified to render" (Rule 18.01, CPR). If he does so, it constitutes malpractice or gross misconduct in .office which are grounds for 'suspension or disbarment under Section 27, Rule 138 of the Rules of Court Collaborating Counsel One who is subsequently engaged to assist a lawyer already handling a particular case for a client (Pineda, 2009). NOTE: The handling lawyer cannot just take another counsel without the consent of the client. The new lawyer on the other hand cannot just enter his appearance as collaborating counsel without the conformity of the first counsel. . ADEQUATEPREPARATION

RULE18.02, CANON 18 . A lawyer shall not handle any legal i matter without adequate preparation. ~ lawyer should prepare his pleadings with great care and circumspection. He should refrain from using abrasive and offensive language, for it merely weakens rather than strengthens the force of legal reasoning and detracts from its persuasiveness. In preparing a complaint for damages, counsel for plaintiff should allege and state the specific amounts claimed not only in the body of the complaint

The lawyer's acceptance, whether for a fee or not, Is an implied representation that he possesses the requisite degree of academic learning, skill and ability to handle the case. . TOMAS·

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2009).

:

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Rule 18.01, Canon 18 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.

UNIVERSITY OF SANTO 2019 GOLDEN NOTES

A lawyer who accepts professional employment should be in a position to render efficient and effective legal assistance (Agpalo,

•

;.,

DUTIES AND RESPONSIBILITIES but also in the prayer, so that the proper docket fees can be assessed and paid (Fernandez v. Atty. Novero, A.C. No. 5394, December 2, 2002).

2. Even if a lawyer was "honestly and sincerely" protecting the interests of his client, the former still had no right to waive the appeal without the latter's knowledge and consent (Abay v, Att;y. Montesino, A.C. No. 5718, December 4, 2003).

The counsel must constantly keep In mind that his actions or omissions, even malfeasance and nonfeasance would be binding to his client. Verily, a lawyer owes to the client the exercise of utmost prudence and responsibility in representation (Fernandez v. Atty. Novero, A.C. No. 5394, December 2, 2002). ·

.

NEGLIGENCE · · • · .

OF A LAWYER

Q: Are the mistakes or negligence of a lawyer binding upon the client? (1998,

2000, 2002 Bar) GR: Client is bound by attorney's conduct, negligence and mistake in handling a case or in the management oflitigation and in procedural technique, and he cannot complain that the result might have been different had his lawyer proceeded differently.

· . ·. :

RULE 18.03, CANON 18

A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him

XPNs: [LIPIGJ

liable.(1998, 2002 'Bar) 1. A lawyer is enjoined not to neglect a legal 2.

matter entrusted to him, and his negligence in connection therewith shall render him liable. It is the duty of the lawyer to serve his client with competence and diligence and he should exert his best efforts to protect within the bounds of the law, the interest of his client (Vda. De Enriquez v. Sanjose, A.C. No. 3569, February 23, 2007).

3.

4.

Dlllgence requtred

5.

Prone to err like any other human being, he is not answerable for every error or mistake, and will be protected as long ashe acts honestly and In good faith to the best of skill and knowledge. An attorney is not expected to know all the laws. He is not liable for disbarment for an honest mistake or error. He is not an insurer of the result in a case where he is engaged In as counsel. Only ordinary care and diligence are required of him (Pineda, 2009).

Lack of acquaintance with technical aspect of procedure; When adherence thereto results in outright deprivation of client's liberty or property or where Interest of justice so requires; Where error by counsel is Purely technical which does not substantially affect client's cause; Ignorance, incompetence, or inexperience of lawyer is so great and error so serious that client, who has a good cause, is prejudiced and denied a day in court; and Gross negligence oflawyer.

•

:')

NOTE: If by reason of ~he lawyer's negligence, actual loss has been caused to his client, the latter has a cause of action against him for damages. However, for' the lawyer to be held liable, his failure to exercise reasonable care, skill and diligence must be proximate cause of the loss. Q: Gloria Jinon entrusted a land title to Viola Jinon, who refused to return it. Gloria engaged the services of Atty. Jiz to recover it. When she inquired about the status of her case, Gloria was surprised to learn that · a certain Atty. Caras was handling the same. Atty. Jiz failed to perform any positive act in order to recover land title from Viola for more than a year. Should Atty, Jiz be administratively liable?

NOTE: What amounts to carelessness or negligence in a lawyer's discharge of his duty to client is incapable of exact formulation. It will depend upon the circumstances of the case.

Instances of negligence by attorneys 1. Failure to appeal to CA despite instructions by the client to do so constitutes inexcusable negligence on the part of the counsel [Abiero v. juanino, A.C. No. 5302, February 18, 2005).

A: YES. Rule 18.03, Canon 18 was violated. When a lawyer takes a client's cause, he covenants that he will exercise due diligence in protecting the latter's ·rights. Failure to

95

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LEGAL ETHICS exercise that degree of vigilance and attention expected of a good father of a family makes the lawyer unworthy of the trust reposed on him by his client and makes him answerable. not just to client but also to the legal profession, the court and society ljinon v. Atty. Iiz, A.C. No. 96.15, March S, 2013, PERLAS-BERNABE).

Is Atty. Jimenez liable for violating I ~ clients. Rule 18.03 and Canon 18 of the Code of Professional Responsibility? A: YES, Atty. Jimenez is liable. His failure to file

the appellant's brief within the period provided by law violates Canon 18 of the CPR. Atty. Jimenez had filed with the CA an Urgent Motion for Extension stating that a previous motion had been filed but "due to the health condition of the undersigned counsel ...he was not able to finish said Appellant's Brief within the fifteen day period,'. earlier requested by him." It is clear that Atty. Jimenez was indeed in charge of the case. A lawyer representing a • "client bears the responsibility of protecting the client's interest with utmost diligence (Figueras v. Jimenez, A.C. No. 9116, March 12,

Q: Atty. Macalalad was introduced to Atty.

Solidon by a mutual acquaintance. Solidon asked Atty, Macalalad to handle the judicial titling of a parcel of land located in Samar and owned by Atty. Solidon's relatives. For a consideration of PB0,000.00, Atty. Macalalad accepted the task to be completed within a period of eight months. Atty. Macalalad received PS01000.00 as initial payment; the remaining balance of P30,000.00 was to be paid when Atty. Solidon received the certificate of title to the property. Atty. Macalalad has not filed any petition for registration over the property sought to be titled up to the present time. Is he guilty of violating the CPR?

•

2014). ·.

·

,Dl)TV TO APPRISECLIENT· RULE 18.04, CANON 18

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.

A: YES. Rule 18.03, Canon 18 of the Code of Professional Responsibility. The mere failure of the lawyer to perform the obligations due to the client is considered per sea violation. A lawyer so engaged to represent a client bears the responsibility of protecting the latter's interest with utmost diligence. Accordingly, competence, not only in the knowledge of law, but also in the management of the cases by giving these cases appropriate attention and due preparation, is expected from a lawyer. Atty. Macalalad failed to act as he· committed when he failed to file the required petition (Solidon v. Macafafad, A.C. No. 8158, February

A lawyer should notify his client of the adverse decision while within the period to appeal to enable the client to decide whether to seek an appellate review. He should communicate with him concerning the withdrawal of appeal with all its adverse consequences. The client is entitled to the fullest disclosure of the mode or manner by which his interest is defended or why certain steps are taken or omitted. As an essential part of their highly fiduciary relationship, the client is entitled to the periodic and full updates from the lawyer on the developments of the case (Ramiscal v. Orro,

24, 2010). Q: Spouses Santander filed a civil suit for

A.C. No.10945, February 23, 2016).

damages against Congressional Village Homeowner's Association. and Ely Mabanag. Atty. Jimenez was the counsel of record and handling lawyer for the association. The RTC rendered a decision ln favor of the Sps. Santander. The CA dismissed the appeal on the ground that the original period to file the appellant's brief had expired 95 days before the first motion for extension of time to file said brief was filed. Some members of the association filed a Complaint for Disbarment against Atty. Jimenez. In his defense, Atty. Jimenez alleged that the members have no personality to file the disbarment complaint as they were not his

Q: Spouses Garcia engaged the services of Atty. Rolando Bala to appeal to the CA the adverse decision of the Department of Agrarian Relations Adjudication Board (DARAB). Instead, he. erroneously filed a Notice of Appeal. During one instance when the spouses had called on him to ask for a copy of the supposed appeal, Atty. Bala uttered unsavory wprds against them. Because of his error, the prescribed period for filing the petition lapsed, to the prejudice of his clients. Did Atty. Bala violate any ethical rules?

UNIVERSITY OF SANTO TOMAS 2019 Go!,DEN NOTES

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·.·-1

96

DUTIES AND RESPONSIBILITIES OF A LAWYER A: YES. Rule 18.04 states that 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." Accordingly, the spouses had the right to be updated on the developments and status of the case for which they had engaged the services of Atty. Bala. But he apparently denied them that right. Having become aware of the wrong remedy he had erroneously taken, he purposely evaded his clients, refused to update them on t.he appeal, and misled them as to his whereabouts. Moreover, he uttered invectives at them when they visited him for an update on the case {Spouses Garcia v. Bala, A.C. No. 5039, November 25, 2005),

relationship, the client is entitled to the periodic and full updates from the lawyer on the developments of the case. Updating the clients could have prevented their substantial prejudice by enabling them to engage another competent lawyer to handle their case. As it happened, his neglect in that respect lost for them whatever legal remedies were then available. His various omissions manifested his utter lack of professionalism towards them (Ramiscal v. Orro, A.C. No. 10945, February 23, 2016). NOTE: The lawyer is obliged to respond within a reasonable time to a client's request for information. A client is entitled to the fullest disclosure of the mode or manner by which that client's interest is defended or why certain steps are taken or omitted. A lawyer who repeatedly fails to answer the inquiries or communications of a client violates the rules of professional courtesy and neglects the client's interests (vittariasa-Retsenbeck v. Abarrientos, .A.C. No. 6238, November 4, 2004).

Q: Sps. Ramiscals engaged the legal services of Atty: Edgar S. Orro to handle a case in which they were the defendants seeking the declaration of the nullity of title to a parcel of land. Upon receiving the P10,000.00 acceptance fee from them, Orro handled the trial of the case until RTC decided it in their favor. When the case reached CA, Orro requested from the· spouses an additional amount of P30,000.00 for the preparation and submission of their appellees' brief. Later on, the CA reversed the decision of the RTC. Orro did not inform the Ramiscals of the adverse decision of the CA which. they only learned about from their neighbors. They endeavored to communicate with Orro but their efforts were initially in vain. When they finally reached him, he asked an additional P7,000.00 from them as his fee in filing a motion for reconsideration iJ1 their behalf, albeit telling them that such motion would already be belated. They later discovered that he did not file the motion for reconsideration; hence, the decision attained finality, eventually resulting in the loss of their property. Did Atty. Orro competently and diligently discharge his duties as a lawyer?

Doctrine of imputed knowledge ·'!

. The knowledge acquired by an attorney during the time that he is acting within the scope of his authority is imputed to the client. It is based on the assumption that an attorney, who has notice of matter affecting his client, has communicated the same to his principal in the course of professional dealings(Agpalo, 2009). NOTE: The doctrine applies regardless of whether or not the lawyer actually communicated to the client what he learned in his professional capacity, the attorney and his client being one judicial person(Agpalo, 2009). Notice to counsel is notice to client, but not vice versa if the latter appeared by attorney GR: The law requires thatservice of any notice

-upon a party who has appeared by attorney A: NO.Every lawyer, upon becoming a member of the Philippine Bar, solemnly takes the Lawyer's Oath, by which he vows, among others, that: "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." lfhe should violate the vow, he contravenes the Code of Professional Responsibility, particularly its Canon 17, and Rules 18.03 and 18.04 of Canon 18. As an essential part of their highly fiduciary

•

· shall be made upon his attorney. Notice.sentto • · 'a party who has appeared by counsel is not notice in law(Chainani v. Tnacinco, G.R. No. L· 4782, February 29, 1952), it being immaterial that the client actuallyreceived the notice or . volunteered to get a copy thereof. ·XPNs: 1. .2.

97

Strict application might foster dangerous collusion to the detriment of justice; Service of notice upon party instead of UN[VERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW

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LEGAL ETHICS upon his attorney is ordered by the court; Notice of pre-trial is required to be served upon parties and their respective lawyers; and In appeal from the tower court to the RTC, upon docketing of appeal.

3.

4.

. · REP~ESENTATION WITH ZEAL · .. .. : WITHIN LEGAL BOUNDS

•

1. The party represented is not bound by attorney's appearance in the case neither by the judgment rendered therein; 2. Court does not acquire jurisdiction over the person of the party represented; 3, The adverse party who has been forced to litigate as a defendant by the unauthorized action on the part of the attorney for the plaintiff may, on that ground, move for the dlsmissal of the complaint; and 4. If unauthorized appearance is willful, attorney may be cited for contempt as an officer of the court who has misbehaved in his official transactions, and he ·may be disciplined for professional misconduct.

.·

CANON19

A lawyer shall represent his client with zeal within the bounds of the law a lawyer accepts a case, whether for a fee or not, his acceptance is an implied

•

When

Ratification of unauthorized

appearance

representation that he: [CASE] 1.

2.

3. 4.

1. Express- Categorized assertion by client that he has authorized a lawyer or that he confirms his authorization to represent him in the case. 2. Implied- Where party with knowledge of fact that a lawyer has been representing him in a case, accepts benefits of representation or fails to promptly repudiate the assumed authority.

Will exercise reasonable and ordinary Care and diligence in the pursuit or defense of the case; Will possess the requisite degree of Academic learning, skill and ability in the practice of his profession; Will take steps as will adequately Safeguard his client's interests; and Will Exert his best judgment in the prosecution or defense of the litigation entrusted to him {Islas v. Platen, G.R. No. L-

Forms of Implied Ratification

23.183, December 29, 1924).

Implied ratification may take various forms, such as by silence or acquiescence, or by acceptance and retention of benefits flowing therefrom (Chong v. Court of Appeals, G.R. No.

Authority to appear in court i's presumed GR: A lawyer is presumed to be properly authorized to represent any cause in which he appears.

148280,July 10, 2007).

XPN: On motion of either party and on reasonable grounds, the presiding judge may require an attorney to prove the authority under which he appears (Sec. 21, Rule 138,

1.

RRC:J.

2.

Requlsites of implied ratification by silence

"

Voluntary authority

appearance

of lawyer

without 3.

An attorney may not appear for a person until he is in fact employed by,or retained for such person. An attorney willfully appearing in court for a person without being employed, unless by leave of court, may be punished for contempt as an officer of the court, who has misbehaved in his official transactions {Sec. 26,

NOTE: Ratification retroacts to the date of the lawyer's first appearance and validates the .,. action taken by him (Land Bank of the Philippines v. Pamintuan Development Co., C.R.

Extent oflawyer's authority in litigation

appearance

UNIVERSITY OF SANTO To MAS GOLDEN NOTES

2019

. !

No. 167886, October 25, 2005).

Rule .138). Effects of unauthorized

The party represented by the attorney is of age or competent or if he suffers from any disability, he has a duly appointed guardian or legal representative; The party or his guardian, as the case may be, is aware \ of the attorney's representation; and He fails to promptly repudiate assumed authority.

A lawyer has authority to bind the client in all matters of ordinary judicial procedure. The

98 •

OF A LAWYER

DUTIES AND RESPONSIBILITIES cause of action, the claim or demand sued upon and the subject matter of the litigation are within the exclusive control of the client. A client may waive, surrender, dismiss, or compromise any of his rights involved in litigation in favor of the other party even without or against the consent of his attorney

.

NOTE: It is an unethical tactic for a lawyer to offer monetary rewards to anyone who could give him information against a party so that he could have leverage against all actions involving such party (CPR Annotated, Phi!JA).

RULE 19.01, CANON 9 A lawyer shall employ only fair and

Under this rule, a lawyer should not file or threaten to file any unfounded or baseless criminal case or cases against the adversaries of his client designed to secure a leverage to compel the adversaries to yield or withdraw their own cases against the lawyer's client(Malvar v. Feir, A.C. No. 11871, March 5,

. ·

The lawyer'd duty to his client does not mean freedom to set up false or fraudulent claims especially with respect to provisions of law or administrative rules and that while lawyers are bound to exert utmostlegal skill in prosecuting their client's cause or defending it, their duty, first and foremost, is to the administration of justice (CPR Annotated, Phi/JA).

·

Rule 19.01 of the CPR obligates a lawyer, in defending his client, to employ only such means as are consistent with truth and honor. He should not prosecute patently frivolous and meritless appeals or institute clearly groundless actions. The act of a lawyer in preventing the execution of the judgment against his clients shows that he actually committed what the above rule expressly prohibits (Que v. Revilla, A.C. No. 7054, December4, 2009).

CLIENT'S FRAUD

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 (2001 Bar)

a lawyer may be held liable for by his client for failure to represent with zeal (Canon 19, CPPJ and for not his client with competence and (Canon 18, CPR).

honest means to attain the lawful objectives of his client and shall 11ot present, participate in presenting or threaten to present; participate · in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding. (1997 Bar}

. ·

RULE 19,02, CANON 19

Q: May a lawyer be held liable for damages by his clients for the lawyer's failure to file the necessary pleadings to prosecute the client's case and as a result of which the client suffered damages? (2014 Bar)

;. ·. · U E OF FAIR AND HONEST MEANS

'

A lawyer who has received Information

{Bejarasco v. People, G.R. No. 159781, February 2, 2011; Agpalo, 2009).

A: YES, damages his client serving diligence

·

,

Q: Atty. Bravo represents Carlos Negar (an insurance agent for Dormir Insurance Co.] in a suit filed by insurance claimant Andy Limot who also sued Dormlr Insurance. Limot testified during the trial that he had mailed the notice of the loss to the insurance agent, but admitted that he lost the registry receipt so that he did not have any documentary evidence of the fact of mailing and of its timeliness. Dormir Insurance denied liability contending that the timely notice had not been given either to the company or its agent.

A few days after Negar testified, he admitted to Atty. Bravo that he had lied · when be denied receipt of Limot's notice; he • did receive the notice by mail but immediately shredded it to defeat Limot's claim. If you were Atty. Bravo, what would you do in light of your client's disclosure that he perjured himself when he testified? (2013 Bar) '

2018).

A: I shall promptly callupon Carlos Negar, my · client, to rectify his perjured testimony by recanting the same before the court. Should he refuse or fail to do so 1 ~hall then terminate my

99

UN lVE.RSITY OF SANTO TOMAS'¢ FACULTY OF CJVIL LAW .••

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LEGAL ETHICS relationship with him (Canon, 19, Rule 19.02) stating that with his having committed perjury he persuaded an illegal conduct in connection with the case (Ibid., Canon 22, Rule 22.01).

appearance from the case? Why or Why not? (2014 Bar) A: He may withdraw his appearance but in accordance with procedure in Section 26, Rule 138 of the Rules of Court Moreover, Rule 19.02 of the CPR provides that "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."

Q: In a prosecution for a murder against a ranking army officer, the latter engaged the services of RS, a well·known trial lawyer, to whom the officer In one of their conferences disclosed a plan to ellmlnate or salvagei.e., kill or otherwise cause to disappearthe only witness, a fellow military officer, through a contrived traffic .or highway vehicular accident. a. What are the legal and · moral obligations of Atty. RS to his client and to the authorities, under the given circumstances? b. Should the planned accident take place, and the witness to the prosecution be killed, as a result, ls Atty. RS under any obligation to disclose to the authorities the plan that his client had mentioned to him, as above mentioned?

· PROCEDURE IN HANDLING THE CASE RULE 19.03, CANON 19

A lawyer shall not allow his client to dictate the procedure in handling the case. Who has control over the case 1. As to matters of procedure - it is the client who yields to the lawyer and not the lawyer yielding to the client (La pen a 2009)

A: a.

Alty. RS has the obligation to disclose such facts to authorities. The announced intention of a client to commit a 'crime is not included within the confidences which his attorney is bound to respect. The attorney cannot reveal to anybody the facts stated by the client as regards the case proceedings. However, this is not an absolute rule, The privilege is limited or has reference only to communications which are within the ambit of lawful employment and does not extend to those transmitted in contemplation of future crimes or fraud. b. YES, Atty. RS has the obligation to disclose such information to the authorities. As provided for by Rule 19.02 of Canon 19, a lawyer shall not allow his client to perpetrate fraud. He shall promptly advise the client to rectify the same, and if the client refuses to heed the lawyer's advice for rectification, the lawyer must withdraw from the case (People v. Sandiqanbayan, G.R. Nos.115439-41.July 16, 1997).

NOTE: The basis of this rule is that the lawyer is better ~ained and skilled in law. 2.

and subject of litigation are within client's control. Proceedings to enforce the remedy are within the exclusive control of the attorney. Authority of counsel to compromise GR: The attorney has no authority to compromise his client's easels so because the client, even if represented by counsel, retains exclusive control over the subject matter of the litigation. The client can, of course, authorize his lawyer to compromise his case, and the settlement made by the lawyer will bind his client. XPNs: 1. When the lawyer is confronted with an emergency where prompt and urgent action is necessary to protect the interest of his client and there is no opportunity for consultation with the latter. 2. Settlement of monetary obligation to client

accused and he ]earns later after accepting the case and while trial is ongoing that his client was indeed the perpetrator of the crime, may the lawyer withdraw his

UNIVERSITY

OF' SANTO NOTES

GOLDEN

As to subject matter - the client is in control. NOTE: Cause of action, claim or demand,

Q: If the lawyer is counsel de parte for the

2019

•

TOMAS

100 ·•.•I!. .

j

•

DUTIES AND RESPONSIBILITIES is full payment in cash.

OF A

LAWYER

Entry of appearance is the written manifestation submitted by the counsel of record to inform the court that he will act as the counsel of a partymade before the date of the hearing while appearance of counsel is the verbal manifestation of the counsel in order for the court to \recognize his presence during the hearing of 'the case {Sec. 21, Rule 138, Rules of Court).

NOTE: The Rules of Court requires lawyers to secure special authority from their clients when entering into a compromise agreement that dispenses with litigation (Luna v. Galarrita, A.C. No.10662,July 7, 2015).

Duty of the lawyer in gathering information regarding the case

·.

.

: . ATTORNEY'S FEES

The lawyer cannot entirely depend on the information his client gave or the time his client wished to give. The lawyer should take more control over handling the case. Where the client is based overseas, the lawyer should with more reason, have moved to secure all the legal means available to him either to continue representing his client effectively or to make the necessary manifestation in court, with the client's conformity, that he was withdrawing as counsel of record (CPR Annotated, Phi IfA).

(1990,.1 ~91, 199Z, 1994, 1995, 1997, 1998, · ·· . 2005;2006, ;wo7 Bar · . · ·

Appearance

XPNs: A lawyer may divide a fee for legal services with another under the following instances: {CPR]

CANON20

A lawyer shall charge only fair and reasonable fees GR: Only lawyers are entitled to attorney's fees. The same cannot be shared with a nonlawyer. It is unethical.

It is the coming into court as a party either as a plaintiff or as a defendant and asking relief therefrom (Agpalo, 2009).

1. A lawyer

undertakes to Complete the unfinished legal business of a deceased lawyer; 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 ln the agreement, A lawyer or Jaw firm includes non-lawyer employees in Retirement plan, even if the plan is based, in whole or in part, on a profit-sharing agreement (Rule 9.02, CPR).

Kinds of appearance 2. 1,

2.

General appearance - When a party comes to court either as plaintiff or defendant and seeks general reliefs from the court for satisfaction of his claims or counterclaims respectively (Agpalo, 2009).

3.

Special appearance- When a defendant appears in court solely for the purpose of objecting to the jurisdiction of the court over his person (Agpalo, 2009).

No more distinction between General and Special Appearance

NOTE: Entitlement to presumed (Puna, 2009). I

By virtue of Sec. 20, Rule 14 of the 1997 Rules of Civil Procedure; there is no more distinction between general appearance and special appearance, In the sertse that a defendant may file a motion to dismiss not only on the ground of lack of jurisdiction over his person but also on some other grounds without waiving the jurisdiction of the court over his person (Agpalo, 2009). Entry of appearance counsel

vs. Appearance

lawyer's

fees

Unless otherwise 'expressly stipulated, rendition of professional services by a lawyer is for a fee or compensation and is not gratuitous (Research ant} Services Realty, Inc. v. CA, G.R. No. 124074,January 27, 1997). RULE 20.01, CANON 20

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

of

questions involved; c.

101

is.

The importance

of the

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U NlVERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW

·y

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•

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LEGAL ETHICS d. e.

payment of legal fees is not exempted from payment of attorney's fees (Cristobal v.

Employees' Compensation Commission, G.R. No. L-49280, February 26, 1981).

employment as a result of acceptance of the proffered case,·

f. ;

,4

matter; Theskill demanded; The probability of losing other

9.

h. I.

j.

The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs; The amount involved in the controversy and the benefits resulting to the client from the service; The contingency or certainty of compensation; The character of the employment, whether occasional or established; and The professional standing of the lawyer.

Factors in determining the attorney's fees (1994 Bar)

•

In determining what is fair and reasonable, a lawyer shall be guided by the following factors: • [STIP·SNACCCJ

1. Skill demanded; 2.

Time spent and the extent of the services rendered or required; 3. Importance of the subject rnatter; 4. Probability of losing other employment as a result of acceptance of the proffered case; .. 5. Professional Standing of the lawyer; 6. Novelty and 'difficulty of the questions 1 involved; 7. Amount involved in the controversy and the benefits resulting to the client from the services; 8. Customary Charges for similar services and the schedule of fees of the IBP chapter to which he belongs; 9. Contingency or certainty of compensation; and 10. Character of the employment, whether occasional or established (Rule 20.01).

NOTE: Generally, the amount of attorney's fees due is that stipulated in the retainer .agreement which is conclusive as to the amount of lawyer's compensation (Funa, 2009) unless the stipulated amount in the written contract is found by the court to be unconscionable or unreasonable{Sec. 24, Rule

138,RRC). In the absence thereof, the amount of attorney's fees is fixed on the basis ofquantum meruit (Sesbreno v. Court of Appeals, G.R. No.

117438,june B, 1995; Puna, 2009). NOTE: Imposition of interest in the payment of attorney's fees is not justified (Funa, 2009).

Kinds of payment

1, Fixed or absolute fee - a feewhich is payable regardless of the result of the case. a. A fixed fee payable per appearance b. A fixed fee computed upon the number of hours spent c. A fixed fee based on piece work d. Combination of any of the above 2.

Contingent fee-a fee on the securing of a and recovery of money amount of which may basis.

Contracts for attorney's services in this jurisdiction stands upon an entirely different footing from other contract for the payment of compensation for any other services

(Mambulao Lumber Co. v. Philippine National Bank, G.R. No. L·22973,january30, 1968). No court shall be bound by the opinion of attorneys as expert witnesses as to the proper compensation, and may disregard such testimony and base its conclusion on its 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. 24, Rule 138, RRCJ.

that is conditioned favorable judgment or property and the be on a percentage

Requisites for the accrual of attorney's fees 1. 2.

Existence of attorney-client relationship; and Rendition by the lawyer of services to the client.

NOTE:

A pauper,

while

exempted

Factors to consider in determining the amount of attorney's fees in the absence of any fee arrangement [TINS]

1.

from

Time spent and the services rendered or ,,t

• UNIVERSITY

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DUTIES AND RESPONSIBILITIES required - A lawyer is justified in fixing

2.

attorney himself (National Power Corporation v. Heirs of Sangkay, G.R. No. .165828, August 24, 2011). the

higher fees when the case is so complicated and requires more time and effort in fixing it Importance of subject matter - The more important the subject matter or the bigger the value of the interest of the property in litigation, the higher is the attorney's fees.

Q: Spouses de Guzman engaged the legal services of Atty. Rosario, Jr. as defense counsel in a complaint filed against them.

· As represented by Atty. Rosario, Spouses de Guzman won their case at all levels, from

3. Novelty and difficulty of questions involved - When the questions in a case are novel

4.

OF A LAWYER

RTC to the Supreme Court. Atty. Rosario filed a Motion to Determine Attorney's Fees. He alleged that he had a verbal agreement with the Spouses and that he would get 25% of the market value of the subject land if the complaint filed against them would be dismissed, Despite the fact that he had

and difficult, greater effort, deeper study and research are bound to burn the lawyer's time and stamina considering that there are no local precedents to rely upon. Skill demanded of a lawyer - The totality of the lawyer's experience provides him skill and competence admired in lawyers.

•

successfully represented them, the spouses refused bis written demand for payment of the contracted attorney's fees. Is Atty, Rosario entitled to recover his attorney's

Different types offee arrangements

fees? 1.

Retainer's fee where the lawyer is paid for services for an agreed amount for the case. 2. The lawyer agrees to be paid per court appearance. 3. Contingent fee where the lawyer is paid for his services depending on the success of the case. This applies usually in civil suits for money or properly where the lawyer's fee is taken from the award granted by the court. 4. Attorney de officio. The attorney is appointed by the court to defend the indigent litigant in a criminal case. The client is not bound to pay the attorney for his services although he may be paid a nominal fee taken from a public fund appropriated for the purpose. 5. legal aid. The attorney renders legal services for those who could not afford to engage the services of paid counsel. 6. Quantum meruit basis. If there is no specific contract between the lawyer and the client, the lawyer is paid on quantum meruitbasis, that is, what the lawyer deserves for his services.

A: YES. In the case at bench, the attorney's fees being claimed by the petitioner refers to the compensation for professional services rendered, and not as indemnity for damages. , The award of Pl0,000.00 made in its extraordinary concept as indemnity for damages, forms part of the judgment recoverable against the losing party and is to be paid directly to Spouses de Guzman and not to Atty. Rosario. Thus, to grant petitioner's motion to determine attorney's fees would not result in a double award of attorney's fees. The 1fees amount of attorney's must be based in quantum meruit Atty. Rosario served as defense counsel for Spouses de Guzman for almost seventeen (17) years. Given the considerable amount of the time spent, the diligent effort exerted by Rosario, and the · quality of work shown by him in ensuring the • successful defense of his clients, he clearly

deserves to be awarded reasonable attorney's fees for services rendered. Justice and equity dictate that petitioner be paid his professional fee based on quantum meruit (Rosario v. de Guzman, C.R. No.191247,July 10, 2013).

NOTE: When the claim for entitlement to attorney's fees is contingent, but no written agreement has been executed bearing the supposed contingent fees, the only way to determine the same is to apply the principle'of quantum meruit: The recovery of attorney's fees on the basis of quantum meruitis a device that prevents an unscrupulous client from running away with the fruits of the legal services of counsel without paying for it and it also avoids unjust enrichment on the part of

Q: Concept Placement retained the services ' of Atty. Funk. Under their retainer contract, . Atty. Funk is to render various legal' services except litigation, quasi-judicial and administrative proceedings and similar actions for which there will be separate billings. Thereafter, Atty. Funk represented Concept Placement in the case filed against it for illegal dismissal. While the labor case was still pending, Concept Placement

103

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LEGAL ETHICS terminated the services of Atty. Funk. Nevertheless, Atty. Funk continued handling the case, Atty. Funk then advised Concept Placement of the POEA's favorable decision and requested the payment of his attorney's fees. Concept Placement refused, Is Atty. Funk entitled to attorney's fees for assisting Concept Placement as cnunsel in the labor case even if the services of Atty. Funk were already terminated?

the lawyer for a client (Pineda, 2009). Q: Atty. M is a partner in the law firm OMP & Associates. C, a former classmate of Atty. M engaged the legal services of Atty. M to handle his appeal to the Court of Appeals (CA) from an adverse decision of the Regional Trial Court (RTC) in his annulment • case, After the notice to file brief was issued by the CA, Atty. M met an accident which incapacitated him -from further engaging law practice. May A~. P, his partner in the law firm, file the required appeal brief for C? Explain your answer. (2014 Bar)

A: YES, The expiration of the retainer contract between the parties during the pendency of the labor case does not extinguish the respondent's right for attorney's fees. The Court found that while the petitioner and the respondent did not execute a written agreement on the fees in the labor case aside from the Retainer Agreement, the petitioner did categorically and unequivocally admit in its Compulsory Counterclaim that it has engaged the services of the respondent as its counsel for a fee of P60,000.00 etc (Concept Placement Resources Inc. v. At~. Funk, G.R. No. 137680, February 6, 2004).

A: It depends on whether or not C knew Atty. M to be a partner of the OMP & Associates Jaw

firm when he hired him. Generally, the retainer of a member of a law firm is equivalent to the retainer of the firm itself. Thus, if the said member dealt with dies or is incapacitated to render service, the law firm is bound to provide a substitute. Hence, Atty. P may file the required brief for C. On the other hand, if Atty. M was retained

Retainer

alone, without the knowledge that he belonged to a Jaw firm, P may not file the required brief for C without the consent of the tatter. There is no statement in the problem that C knew M to be a member of the law firm OMP &.Associates at the time that C engaged his services.

1. This Is the act of the client by• which he employs a lawyer to manage for him a cause to which he ls a party, or otherwise · to advise him as counsel; 2. It also refers to a fee which the client pays his attorney whom he retains (Pineda, 2009).

Q: Atty. Francisco's retainer agreement with rum said that his attorney's fees in its case against CRP "shall be 15% of the amounts collected." Atty. Francisco asked the trial court to issue a temporary restraining order against CRP but this was denied, prompting him to file a petition for certiorari with the Court of Appeals to question the order of denial. At this point, rum terminated Atty. Francisco's services. When the parties later settled their dispute amicably, CRP paid rum P100 million. Because of this, Atty. Francisco came around and claimed a 15% share in the amount. What should be his attorney's fees? (2011 Bar) 1,

Retaining fee A retaining fee is a preliminary fee given to an attorney or counsel to insure and secure his future services, and induce him to act for the 1 client. (Pineda, 2009). I I

Kinds of Retainer Agreements-on Attorney's Fees 1. General retainer or retaining fee- It is the fee paid to a lawyer to secure his future services as general counsel for any ordinary legal problem that may arise in the ordinary business of the client and referred to him for legal action. The client pays fixed retainer fees, which could be monthly or otherwise. The fees are paid whether or not there are cases referred to the lawyer; 2. Special retainer - It is a fee for a specific or particular case or service rendered by

--ru-·) \., .)t

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UNIVERSITY OF SANTO 2 0 1 9 GO L D E N N O T E 5

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A: A ~easonable amatint that th~ court shall fix upon proof of quantum meruitwhich means "as much as he deserves".' Instances when the measure of quantum merui'tmay beresorted to (2007 Bar) I

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1.

There is no express contract for payment of

•

DUTIES AND RESPONSIBILITIES

2.

attorney's fees agreed upon between the lawyer and the client; Although there is a formal contract for attorney's fees, the stipulated fees are found unconscionable or unreasanrble by

6.

When the counsel's services are worthless because of his negligence: 7. When contract is contrary to law, morals or public policy; and 8. Serving adverse interest unless the lawyer proves that It was with the consent of both parties.

the COUit; 3.

OF A LAWYER

'the contract for attorney's fees is void due to purely formal matters or defects of

execution;

Rationale behind the rule that the court may reduce unconscionable attorney's fees

The counsel, for justifiable cause, was not able to finish the case to its conclusion; 5. Lawyer and client disregard the contract for attorney's fees; and 6. The client dismissed his counsel before the termination of the case. 4.

1.

2.

Q: A client refuses to pay Atty. A his

contracted attorney's fees on the ground that counsel did not wish to intervene in the process of effecting a fair settlement of the case. Decide. (2001 Bar)

A lawyer is primarily an officer of the court hence fees should be subject to judicial control; Sound public policy demands that courts disregard stipulations for attorney's fees when they appear to be a source of speculative profit at the expense of the debtor or mortgagor (Borcena v. /Al~ et. al., G.R. No. 70099,January 7, 1987),

may not order the reduction of the attorney's fees on the ground that the attorney is "below average standard of a lawyer." The opinion of the judge as to the capacity of a lawyer is not a basis of the right to a lawyer's fees (Fernandez v. Hon. Bello, G.R. No. NOTE: A trial judge

A: Rule 1.04 of the Code of Professional Responsibility provides that "a lawyer -shall

encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement". If a lawyer should refuse to intervene in a settlement proceeding, his entitlement to his attorney's fees may be affected. However, if he has already rendered some valuable services to the client, he must be paid his attorney's fees on the basis ofquantum meruit, even if it is assumed that he is dismissed.

L-14277, April 30, 1960).

. · ·. ACCEPTANCE FEES' :

.

·

An acceptance fee is generally non-refundable, but such rule presupposes that the lawyer has rendered legal service to his client. In the absence of such service, the lawyer has no basis for retaining complainant's payment

Instances when counsel cannot recover the full amount despite written contract for attorneys' fees (2006 Bar) When the services called for were not performed as when the lawyer withdrew before the case was finished, he will be allowed only reasonable fees; 2. When there is a justified dismissal of the attorney, the contract will be nullified and payment will be on the basis of quantum meruitonly. A contrary stipulation will be invalid; 3. When the stipulated attorney's fees are unconscionable, when it is disproportionate as compared to the value of services rendered and is revolting to human conscience; 4. When the stipulated attorney's fees are in excess of what is expressly provided by law; 5. When the lawyer is guilty of fraud or bad faith toward his client in the matter of his employment;

•

(Martin v. Atty. Dela Cruz, A.C. No. 9832, September 4, 2017, PERLAS-BERNABE].

1.

• Q: B hired Atty. z to file a replevin case against C for an agreed acceptance fee of P30,000.00 which was evidence by a written contract. After the complaint was filed by Atty. Z, B terminated his services and hired a new lawyer for the same amount of attorney's fees. How much attorney's fees is Atty. Z entitled to? (2014 Bar) A: Atty. Z is entitled to the entire amount of the attorney's fees agreed upon because his services were terminated by the client without just cause (Sec. 26, Rule 138, Rules of Court]. Q: Rose engaged the services of Atty. Jack as

counsel for five cases. In the Retainer Agreement, Rose agreed to pay Atty. Jack the amount of P200,000.00 as Acceptance

105

UNIVERSITY OF SANTO TOMAS FA CUL TY OF CIVIL L,\W

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LEGAL ETHICS Fee for the five cases plus an additional P1,500.00 Appearance Fee per hearing and lf damages are recovered, she would pay Atty, Jack 10% as success fee. Rose issued two checks amounting to PSl,716.54 tn favor of Atty. Jack however despite receipt of said amounts he failed to file a case in one of the five cases referred to him; one case was dismissed due to untimely appeal; and another case was dismissed but he failed to inform Rose about it before she left for abroad, Dissatisfied with the outcome of her cases she demanded from Atty. Jack the return of all the records she had entrusted to him however he returned only two of the five cases. She filed a complaint charging him with violation of Canon 16 and 16.03 of the Code of Professional Responsibillty. Was there a violation of the said Canon by the respondent?

counsel is based upon the outcome of the case (Pineda, 2009).

A contingent fee arrangement is valid in this jurisdiction and is generally recognized as valid and binding but must be in an express • contract The· amount of contingent fee agreed upon by the parties is subject to the stipulation that counsel will be paid for his legal services only if the suit or litigation prospers. A much higher compensation is allowed as contingent fee in consideration of the risk that the lawyer may get nothing if the suit fails (Rayos v. Atty. Hernandez, G.R. No.169079, February 12, 2007).

•

NOTE: If a lawyer employed on contingent basis dies or becomes disabled before the final adjudication or settlement of the case has been obtained, he or his estate will be allowed to recover the reasonable value of the services rendered. The recovery will be allowed only after the successful termination of the litigation in the client's favor (Morton v. Forsee, Ann. Cas. 1914 D. 197; Lapena, 2009, Pineda,

A: NONE. From the records of the case, it was

found that four of the cases referred by Rose were filed but were dismissed or terminated for causes not attributable to Atty. Jack; and that there was no probable cause to maintain the suit No fault or negligence can be attributed to Atty. Jack. Rose still owes payment of acceptance fee because she only paid PS 1, 716.54-.

2009)

Rationale for contingent fee contracts Contracts of this nature (contingent fee contract) are permitted because they redound to the benefit of the poor client and the lawyer especially in cases where the client has meritorious cause of action, but no means with which to pay for the legal services unless he can, with the sanction of law, make a contract for a contingent fee to be paid out of the proceeds of the litigation (Rayos v. Atty. Hernandez, G.R. No. 1-69079, February 12, 2007).

An acceptance fee is not a contingent fee, but is an absolute fee arrangement which entitles a lawyer to get paid for his efforts regardless of the outcome of the litigation. Dissatisfaction from the outcome of the cases would not render void the retainer agreement for Atty. Jack appears to have represented the interest of Rose (Yu v. Bondal, A.C. No. 5534, January 17, 2005').

Limitation of the stipulation contingent fee contract

regarding

NOTE: The expiration of the retainer contract

between the parties during the pendency of the labor case does not extinguish the respondent's right to attorney's 'fees (Uy v. Gonzales, A.C. No. 5280, March 30, 2004).

It must be reasonable based on the circumstance of the case: Contingent fee contracts are under the supervision and close scrutiny of the court in order that clients may be protected from just charges, Its validity depends on the measure of reasonableness of the stipulated fees under the circumstances of the case. Stipulated attorney's fees must not be unconscionable wherein the amount is by far so disproportionate compared to the value of the services rendered as to amount to fraud perpetrated to the client (Sesbreno v. CA, G.R.

· : .. CONTINGF.NCY FEE ARRANGEMENTS

Contingency fee contract One which stipulates that the lawyer will be paid for his legal services only if the suit or litigation ends favorably to the client (Taganas v. NLRC, G.R. No.118746, September 7, 1995). It is like a contract subject to a suspensive condition wherein the obligation to pay the

lf.,,...,11.)

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UN IVERS IT Y O F SA NT O TOM AS GOLDEN NOTES

2019

No.117438,June 8, 1995).

·1 106

Q: The stipulation between the lawyer and counsel is as follows, "the attorney's fees of

•

DUTIES AND RESPONSIBILITIES the Atty. X wiJI be 1h. of whatever the client might recover from his share in the property subject of the litigation.'' Is the stipulation valid?

OF A LAWYER

case was decided by the RTC in favor of Chester, which shows that Atty. Laarni has already rendered service to the client. Q: Assuming that there was no settlement

A: YES. The stipulation made is one of a contingent fee which is allowed by the CPE and the CPR. It does not violate the prohibition of acquisition of property subject of the litigation by the lawyer provided for in the Civil Code since the prohibition applies only to a sale or assignment to the lawyer by his client during the pendency of the litigation. The transfer actually takes effect after the finality of the judgment and not during the pendency of the case. As such it is valid stipulation between the lawyer and client.

and the case eventually reached the Supreme Court which promulgated a decision in favor of Chester. (This time) Chester refused to convey to Laarni 15% of the litigated land as stipulated on the ground that the agreement violates Article 1491 of the Civil Code, which prohibits lawyers from acqumng by purchase properties and rights, which are the object . of litigation in which they take part by reason of their profession, Is the refusal justified? Explain. (20()8 Bar)

Acceptance of an initial fee before or during the progress of the litigation detract from · the contingent nature of the fees

A: Chester's refusal is not justified. A contingent fee arrangement is not covered by Art.1491 of the Civil Code, because the transfer or assignment of the property in litigation takes effect only upon finality of a favorable ' judgment (Director of Lands v. Ababa, G.R. No. L-26096, February 27, 1979}; (Macariola v. Asuncion,A.C. No.133·], May 31, 1982).

The, acceptance of an initial fee before or during the progress of the litigation does not detract from the contingent nature of the foes, as long as the bulk thereof is made dependent upon the successful outcome of the action (Francisco v. Matias, C.R. No. L·16349, January 31, 1964).

Q: Evangelina Masmud's husband, the late Alexander, filed a complaint against his employer for non-payment of permanent disability benefits, medical expenses, sickness allowance, moral and exemplary damages, and attorney's fees. He engaged the services of Atty. Go, as his counsel and agreed to pay attorney's fees on a contingent basis, as follows: 20% of total monetary claims as settled or paid and an · additional 10% in case ofappeal. The.Labor Arbiter granted the monetary claims of Alexander. Eventually, after several appeals, the decision being favorable to Evangelina (substituted her deceased husband), the decision became final and executory. Upon motion of Atty. Go, the surety company delivered to the NLRC Cashier, the check amounting to P3,454,079.20. Thereafter, Atty. Go moved for the release of the said amount to Evangelina. Out of the said amount, Evangel'ina paid Atty. Go the sum of P680,000.00. Dissatisfied, Atty. Go filed a motion to record and enforce the attorney's lien alleging that Evangelina reneged on their contingent fee agreement. Evangelina manifested that Atty. Go's claim for attorney's fees of 40% of the total monetary award was null and void based on Article 111 of the Labor Code. Is her contention

Q: Chester asked Laarni to handle his claim to a sizeable parcel of land in Quezon City against a well-known property developer on a contingent fee basis. Laarni asked for 15% of the land that may be recovered or 15% of whatever monetary settlement that may be received from the property developer as her only fee contingent upon securing a favorable final judgment or compromise settlement. Chester signed the contingent fee agreement. Assuming that the property developer settled the case after the case was decided by the Regional Trial Court in favor of Chester for Pl Billion. Chester refused to pay LaarniP150 Million on the ground that it is excessive. Is the refusal justified? Explain. (2008 Bar)

A: The refusal of Chester to pay is unjustified. A contingent fee is impliedly sanctioned by Rule 20.0l(f) of the CPR. A much higher compensation is allowed as contingent fees in consideration of the risk that the lawyer will get nothing if the suit falls, In several cases, the Court has indicated that a contingent fee of 30% of the money or property that may be recovered is reasonable. Moreover, although the developer settled the case, it was after the

107

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UNIVERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW ••

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LEGAL ETHICS correct?

bear all the expenses for the recovery of things or property being claimed by the client, and the latter agrees to pay the former a portion of the thing or property recovered as compensation

A: NO. Art 111. Attorney's fees. {a) In cases of unlawful withholding of wages, the culpable party may be assessed attorney's fee~ equivalent to ten percent of the amount of the

• · (Baltazar et al. v. Banez, A.C. No.· 9091, December 11, Z013).

waijes recovered, Contrary to Evangelina's r,roposltlon, Art:lel@ 111

t>(

the Labor Code

A champertous tohtract ls considered VOID

deals with the extraordinary concept of attorney's fees. It regulates the amount recoverable as attorney's fees in the nature of damages sustained by and awarded to the prevailing party. It may not be used as the standard in fixing the amount payable to the lawyer by his client for the legal services he rendered.

It is void due to public policy. because it would make him acquire a stake in the outcome of the litigation which might lead him to place his own interest above that of the client (Bautista v. Gonzales, A.M. No. 1625, February 12, 1990).

Contingent

In this regard, Section 24, Rule 138 of the Rules of Court, should be observed in determining Atty. Go's compensation. The said Rule provides: 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 co.ntroversy, 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

Champertous contract It is one where the lawyer stipulates with his client in the prosecution of the case that he will

(··-•,

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UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTES

·

· CtlAMPERTOUS . CONTRACT

·

Payable in cash dependent on the success of the litigation

Payable in kind • a portion of the thing or property recovered as compensation

Lawyers do not undertake to pay aJI expenses oflitigation ,,

Lawyers . undertake to pay all expenses of litigation

Valid

Void

Q: Complainants engated the legal services of Atty. Baiiez, Jr. In conuectlon with the recovery of their properties from Fevldal. Complainants signed a contract of legal services, where it was agreed· that they would not pay acceptance and appearance fees to Atty. Bafiez, Jr., but that the docket fees would instead be shared by the parties. Under the contract, complainants would pay respondent 50% of whatever would be recovered of the properties. Did Atty. Banez, Jr violate any canon of the Code of Professional Responsibility?

amow1t to be paid therefor 1111Jess found by the court to be unconscionable or unreasonable.

Masmud v. NLRC, et al; G.R. No. 183385, February 13, 2009).

vs. Champertous contract

. . · CONTINGENT . ·. . CONTRACT

Sec.

The retainer contract between Atty. Go and Evangelina provides for a contingent fee. The contract shall control in the determination of the amount to be paid, unless found by the court to be unconscionable or unreasonable. The criteria found in the Code of Professional Responsibility are also to be considered in assessing the proper amount of compensation that a lawyer should receive (Canon 20, Rule 20.01, CPR; Evangelina

•

A: YES. He violated Canon 16.04 of the Code of Professional Responsibility, which states that lawyers shall not lend money to a client, except when in the interest of justice, they have to advance necessary expenses in a legal matter • they are handling for the client. He violated such canon because the contract for legal services he has executed with complainants is in the nature of a champertous contract - an agreement whereby an attorney undertakes to ~ pay the expenses of the proceedings to enforce the client's rights in exchange for some bargain to have a part of the thing in dispute (Baltazar

108

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l

• ,.·c...

DUTIES AND RESPONSIBILITIES et. al. v. Atty. Banez, Jr., A.C. No. 9091, December 11, 2013).

A retaining lien is the right of an attorney to · retain the funds, documents and papers of his client who 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 (Vda. De Caiiia, et al. v. Yictorlano et al, G.R. No. L-12905, February 26, .1959).

Q: The contract of attorney's fees entered into by Atty. Quintos and his client, Susan, stipulates that if a judgment is rendered in favor of the latter, Atty. Quintos gets 60% of the property recovered as contingent fee. In turn, he will assume payment of all expenses of the litigation. May Atty. Quintos and Susan increase the amount of the contingent fee to 80%? (2006 Bar)

NOTE: A lawyer is not entitled to unilaterally appropriate his client's money for himself by the mere fact alone that the client owes him attorney's fees (Rayos v. Hernandez, C.R. No. 169079, February 12, 2007).

A: NO. Atty. Quintos and Susan cannot agree to increase the amount of the contingent fee to 80% because the agreement is champertous, Even if there is no champertous provision present, the contingent fee of 80% of the PROPERTY recovered could still be considered as unconscionable, because it is. so disproportionate as to indicate that an unjust advantage had been taken of the client, and is revolting to human conscience. Contracts for attorney's fees are always subject to control by the courts.

Elements for the exercise of retaining lien [ALU] 1. Attorney-client relationship;

2.

Lawful possession by the lawyer of the client's funds, documents and papers in his professional capacity; and 3. Unsatisfied claim for attorney's fees or disbursements (Miranda v. Atty. Carpio, AC. No. 6281, September 26, 2011; Ampil v. Judge Agrava, G.R. No. L-27394, July 31, 1970).

Q: A inherited parcel of land situated in Batasan Hills which is occupied by informal settlers, He wanted to eject the occupants, but he has no financial means to pursue the ejectment case. He contracted the services of Atty. B, who agreed to defray all the expenses of the suit on the condition that he will be paid one-half of the property to be ' recovered as his compensation. What is this kind of attorney's fees? Can Atty. B enforce this contract against ·A?

A charging lien is the right of a lawyer 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 s~cure the payment of his fees and disbursements (Sec. 37,;)Rule 138, RRC).

A: This is a champertous contract and not a contingent contract In the problem, Atty. B defrays all the expenses for litigation and gets 50% of the property to be recovered as his compensation. This has the characteristics of a champertous contract. Hence, void for being contrary to public policy. The legal profession exists to serve the ends of justice and is not to be conducted as a business enterprise. Since the contract is void, Atty. B cannot enforce it against A but A has a cause of action against Atty. B for unethical conduct. · . ' · ·ATTORNEY'S LIENS

·

•

Attorney's charging lien

What are the respective remedies relative to the collection of attorney's fees, if any, of A and Atty. B against each other? (2014 Bar}

· ·

OF A LAWYER

NOTE: The provision permits the registration of an attorney's lien, although the lawyer concerned does not finish the ·case successfully in favor of his client, because an attorney who quits or is dismissed before the conclusion of his assigned task is as much entitled to the protection of the rule. Otherwise, a client may easily frustrate its purpose (Palanca v. Pecson, G.R. Nos. L-6334 and L-6346, February 25, 1954).

•

Attorney's retaining lien

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UNrVERSITYOF SANTO TOMAS~ FACULTY OF CIVIL LAW ....

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LEGAL ETHICS Elements for [ASMoCAR] 1.

exercise

of charging

lien

Attorney-client relationship; Legal Services was rendered; Favorable Money judgment secured by the counsel for his client; The attorney has a Claim for Attorney's fees or advances; and A statement of the claim has been duly Recorded in the case with notice thereof served upon the client and the adverse party.

2. 3. 4. 5.

.,

NOTE: A charging lien, to be enforceable as a 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 (Rolloza et al. v. Eastern TelecommunicationsPhils., Inc. G.R. No. 104600, July 2, 1999; MEBTC v. CA, G.R. No. 86100-03,January 23, 1990).

··.

'

.. !

As to Basis .. •

'

As soon as

··.·.

··;:-;

·.

,,,,:

.

..

. . ...

'·.·

.Asto . Extfngulshme ... )lt

·rnARGING: .. LIEN

the attorney gets possession of papers, documents, or

:.Asto··11:·.:. ·Atfplica~iliW,: :·

.,

: AHoNature

empfoyme nt, '

::'.4s t<> ~fleet

··

.

·,,.'.

Passive Active lien. It lien. It can be enforced by · cannot be execution. It is actively enforced. It · a special lien. is a general lien. Securing of a Lawful possession favorable

-

.·-:-

,,•

...

!

judgment or execution or regardless thereof. When possession lawfully ends as when lawyer voluntarily parts with funds, documents, and papers of client or offers them as evidence. .i:

UNIVERSITY OF SANTO 2019 GOLDEN NOTES

TOMAS

110

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

I

'i

'-'.

•

professlona

, ..

..

money judgment for client·

his"

',\:

Under this rule, this lien, whether retaining or charging, takes legal effect only from and after, but not before, notice of said lien has been entered in the record and served on the adverse party (Vda. De Caiiio, et al. v. Victoriano et al, G.R. No. L-12905, February 26, 1959).

RETAININ GLIEN

Covers papers, .. documents, and properties in the lawful possession of the attorney by reason of

\"

Retaining Lien • right of the 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. Charging Lien • right which the attorney has upon aJI Judgments for the payment of money, and executions issued . in pursuance of said judgments, which he has secured in litigation of his client.

2.

'·l•

. ·..

Retaining Lien vs.Charging Lien 1.

of papers, documents, property belonging to the client

As soon as the claim for attorney's fees had been entered into the records of the case.

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

•

......

,

,..• ,.. !

:\

. .

DUTIES AND R.ESPONSIBILITIES OF A LAWYER

.... . ,

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Q: Upon being replaced by Justice C, Atty. B, the former counsel of the parents of the victims of the OZONE Disco tragedy, was directed to forward all the documents in his possession to Justice C. Atty. B refused, demanding full compensation pursuant to

commission.

their written contract. Sensing that a

take him as collaborating counsel, and there is no express agreement on the payment of

Lawyer-referral system Under this system, if another counsel is referred to the client, and the latter agrees to

favorable Judgment was forthcoming, Atty. ll filed a motion in court relative to his attorney's fees, furnishing his former clients with copies thereof. Is Atty. B legally and ethically correct in refusing to turn over the documents and in filing the motion? Explain. (1996 Bar)

attorney's fees, the said counsel will receive attorney's fees in proportion to the work performed and responsibility assumed. The lawyers and the client may agree upon the proportion but in case of disagreement, the court may fix the proportional division of fees (Lapena, 2009).

A: YES. He is entitled to a retaining lien which gives him the right to retain the funds, documents and papers of his client which have lawfully come to his possession until his lawful fees and disbursement have been paid (Sec. 37, Rule 138, RRC; Rule 16.03, CPR). He is also legally and ethically correct in filing a motion in court relative to his fees. He is entitled to a charging lien upon all judgments for the paying 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 the records of the court rendering such judgment or issuing such execution.

RULE 20.03, CANON 20 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. (1997, 2003 Bar)

It is intended to secure the fidelity of the lawyer to his client's cause and to prevent a situation in which the receipt by him of a rebate or commission from another with the client's business may interfere with the full discharge of his duty to his client (Report of the IBP Committee). '.'.

Q: M engaged the services of Atty. D to prosecute his annulment of marriage case in the Regional Trtal Court. After a longdrawn trial, Atty. D was able to secure ~ favorable judgment from the court. Unfortunately, M has failed to pay in full the stipulated attorney's fees of Atty. D. How can Atty. D collect his fees from M? Discuss fully. (2014 Bar)

• GR: Fees shall be receiv;d from the clientonly, '

XPN: A lawyer may receive compensation from a person other than his client when the latter has full knowledge and approval thereof {Sec. 20 [e], Rule 138].

A: D can exercise the remedy of retaining lien over the documents and other pieces of evidence which have lawfully come to his possession, under Sec. 37, Rule 138 of the Revised Rules of Court The payment of attorney's fee is based on the services rendered and not dependent on the success or failure of the case.

Q: Atty. X, lawyer of a labor union of rank and file employees succeeded in the negotiation of a collective bargaining agreement for the rank and file employees by virtue of which salary increase was. received by the rank and file employees. At the same time the employer granted salary increase to supervisory employees who were not members of the union. Atty. X now seeks to collect from the non-supervisory employees' attorney's fees for this increase in salaries. Is he entitled to such fees?

-FEES AND CONTROVERSIES WITH CLIENTS RULE 20.02, CANON 20 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.

A: NO. Atty. X is not entitled to collect attorney's fees ffom the non-union supervisory employees. A lawyer who rendered services to a party, who di~ not employ him nor authorize

NOTE: This is not in the nature of a broker's

111

UNIVERSITY OF SANTO TOMAS¢ FA CUL TY OF ClVlL LAW

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LEGAL ETHICS his employment, cannot recover compensation • even if his services have redounded to the benefit of such party. Otherwise, anyone might Impose obligations upon another without the latter's knowledge or consent, and even against his protest as what happened in the present case. In labor cases such as this one, where the company, grants the same salary increase to non-union supervisory employees similar to the rank and file employees who were the clients of the lawyer, it is not because of the special efforts of the latter's lawyer that the non-union supervisory employees benefited but because of the company's policy of non· discrimination. The lawyer is not entitled to claim attorney's fees from the supervisors for the benefits they received (Orosco v. Hernaez, C.R. No. L-541&9, December 2, 1901). RULE 20.04, CANON 20

A lawyer shall avoid controversies with clients concerning his compensation and shall resort to Judicial action only to prevent Imposition, injustice or fraud.

•

bound to pay his lawyer for his legal representation (Atty. Gubat v. NPC, G.R. No.

1

167415, February 26, 2010).

Ways on how lawyers claim attorney's fees 1.

2.

Same action in which the services of a lawyer had been rendered; or In a separate action.

With respect to the first situation, 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. Attorney's fees cannot be determined until after the main litigation has been decided and the subject of the recovery is at the disposition of the court. The issue over attorney's fees only arises when something has been recovered from which the fee is to be paid. While a claim for attorney's fees may be filed before the judgment is rendered, the determination as to the propriety of the fees or as to the amount thereof will have to be held in abeyance until the main case from which the lawyer's claim for attorney's fees may arise has become final. Otherwise, the determination to be made by the courts will be premature. Of course, a petition for attorney's fees may be filed before the judgment in favor of the client is satisfied or the proceeds thereof delivered to the client (Rosario, Jr. v. De Guzman et al; G.R. No. 191247,July 10, 2013).

(1998 Bar) GR: A lawyer should avoid the filing of any case against a client for the enforcement of attorney's fees. NOTE: The legal profession is not a money· making trade but a form of public service. Lawyers should avoid giving the impression that they are mercenary (Perez v. Scottish Union and National Insurance Co; C.A. No. 89771

March 22, 1946), It might even turn out to be

Instances when en Independent civil action

unproductive for him for potential clients are likely to avoid a lawyer with a reputation of suing his clients.

to recover attorney's fees ts necessary \

1. Main action is dismissed or nothing is awarded; 2. Court has decided that it has no jurisdiction over the action or has already lost it; 3. Person liable for attorney's fees is not a party to the main action; 4. Court reserved to the lawyer the right to file a separate civil suit for recovery of attorney's fees; S. Services for which :-:the lawyer seeks payment are not connected with the , subject litigation; ,. 6. Judgment debtor has fully paid all of the judgment proceeds to the judgment creditor and the .lawyer has not taken any legal step to have his fees paid directly to him from the judgment proceeds; and 7. Failure to exercise charging Lien.

XPNs:

1. To prevent imposition 2. To prevent injustice 3. To prevent fraud (Rule 20.04, CPR) NOTE: A client may enter into a compromise agreement without the intervention of the lawyer, but the terms of the agreement should not deprive the counsel of his compensation for the professional services he had rendered. If so, the compromise shall be subjected to said fees. If the client and the adverse party who assented to the compromise are found to have intentionally deprived the lawyer of his fees, the terms of the compromise, Insofar as they prejudice the lawyer, will be set aside, making both parties accountable to pay the lawyer's fees. But in all cases, It is the client who is (8\

UNIVERSITY OF SANTO Go LD EN NOTES

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DUTIES AND RESPONSlBILITIES Effects of the nullity of contract on the right to attorney's fees

OF' A

LAWYER

ORDtNARV CONCEPT OF ATTORNEY'S FEES

an action for declaration of nullity of marriage against Vinson Pineda, who was represented by Attys. Clodualdo de Jesus, Carlos Ambrosio and Emmanuel Mariano. The marriage was subsequently declared null and void. Throughout the proceedings counsels and their relatives and friends availed of free · products and treatments from Vinson's dermatology clinic. This notwithstanding, they billed him additional legal fees • amounting to P16.5 million which he, however, refused to pay. Instead, he issued them several checks totaling P1.12 million as full payments as settlement. Still not satisfied, the three lawyers filed in the same court a motion for payment of lawyers' fees for PSO million, which is equivalent to 10% of the value of the properties awarded to Pineda in the case. Is their claim justified? Q: Aurora Pineda filed

If the nullification is due to: 1. 2.

Illegality of its object · the lawyer is precluded from recovering; or Formal defect (or because the court has found the amount to be unconscionable} · the lawyer may recover for any services rendered based on quantum meruit.

Kinds of lawyer according to services rendered and the compensation they' are entitled to 1. Counsel de parte- He is entitled to the reasonable attorney's fees agreed upon, or in the absence thereof, on quantum meruitbasis.

Counsel de officio- The counsel may not demand from the accused attorney's fees even if he wins the case. He may, however, collect from the government funds, if available based on the amount fixed by the court 3. Amicus Curiae- not entitled to attorney's fees. 2.

. ,

A: NO. Clearly, what they were demanding was additional payment for: legal services rendered in the same case. Demanding PSO million on top of the generous sums and perks already given to them was an act of unconscionable greed. They could not charge Pineda a fee based on percentage, absent an express agreement to that effect The payments to them in cash, checks, free products and services from Pineda's business more than sufficed for the work they did. The full payment for settlement should have discharged Vinson's obligation to them.

. CONCEPTS OF ATTORNEY'S FEES

Two concepts of attorney's fees 1. Ordinary attorney's fee- The 'reasonable compensation paid to a lawyer by his client for the legal services he has rendered to the latter (Ortiz v. San Miguel Corporation,

As lawyers, they should be reminded that they are members of an honorable profession, the primary vision of which is justice. It is the lawyer's despicable behavior in the case at bar which gives lawyering a bad name in the minds of some people. The vernacular has a word for it: nagsasamantala. The practice of law is a decent profession and not a money-making trade. Compensation should be but a mere incident (Pineda v. de Jesus, G.R. No. 155224,

G.R. No.151983-84,july31, 2008).

NOTE: The basis for this compensation is the fact of his employment by and his agreement with the client. 2. Extraordinary attorney's fee- An indemnity for damages ordered by the court to be paid by the losing party in litigation(Ortiz v. San Miguel Corporation,

Aug. 23, 2006).

G.R. No.151983·84,ju/y31, 2008).

. ·

NOTE:The basis for this is any of the cases provided for by law where such award can be made, such as those authorized in Article 2208 of the Civil Code, and is payable to the client, NOT to the lawyer unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof.

· EXTRAORDINARY CONCEPTOF .

.

. ATT()RNEV'S

FF.ES

Rules on extraordinary attorney's fees

:

· ·

·

concept

of

GR: Attorney's fees as damages are not recoverable. An adverse decision does not ipso facto justify their award in favor of the winning

113

UNIVERSITY OF SANTO TOMAS~ FACULTY OF ClVIL LAW

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• L~GAL

ETHICS

party (Garcia v. Gonzales, G.R. No. L-48184,

CANON21 A lawyer shall 'preserve the confidence and secrets of his client even d{ter the attorney-client relation is terminated.

March 12, 1990).

XPNs: Attorney's fees in the concept of damagesmay be awarded in any of the following circumstances:

The protection given to the client is perpetual and does not cease with the termination of the litigation nor is affected by the party ceasing to employ the attorney and employ another or any other change of relation between them. It even survives the death of the client (Bun Siong Yao v. Aurelio, A.C. No. 7023, 30 March 2006).

When there is an agreement; 2. When exemplary damages are awarded; 3. When defendant's action or omission compelled plaintiff to litigate; 4. In criminal cases of malicious prosecution 1.

a. b.

Plaintiff was acquitted; and . The person who charged him knowingly made the false statement of facts or that the filing was prompted by sinister design to vex him;

. PROHIBITED DISCLOSURES AND USE RULE 21.01, CANON21

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;

5. When the action is clearly unfounded; 6. When defendant acted in gross and evident bad faith; 7. In actions for support; 8. In cases of recovery of wages; 9. In actions for indemnity under workmen's compensation and employee's liability laws; 10. In a separate civil action arising from a crime; 11. When at least double costs are awarded (costs of suit does not include attorney's fees); 12. When the court deems it just and equitable; and 13. When a special law so authorizes {Art 2208, NCC)

b. When required by law: c. When necessary to collect his fees or to defend himself, his employees or associates or by judicial action, GR: A lawyer shall not reveal the confidences and secrets of his client. NOTE: 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, or with a view to, 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 \,\Jhich has been acquired in such capacity [Sec. i~(b), Rule 130, RRC].

Rationale why that the Court shall state the reason for the award of attorney's fees in in its decision The award of attorney's fees being an exception rather than the general rule, it is necessary for the court to make findings of facts and law that would bring the case within the exception and justify the grant of, such award (Agustin v. CA, G.R. No. 84751, June 6,

XPNs:

1.

1990.

NOTE: Attorney's fees must be specifically prayed for and proven and justified in the decision itself (Trans-Asia Shipping Lines, Inc. v. CA, G.R. No.118126, March 4, 1996).

NOTE: The only instance where the waiver of the client alone is insufficient is when the person to be examined regarding any privileged communication is the attorney's secretary, stenographer or clerk, in respect to which, the consent of the attorney is likewise necessary. 2.

114

When authorized by his client after acquainting him of the consequences of the. disclosure;

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PRESERVATlON OF CLIENT'S CONFIDENCES'

UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTES

.

When required by law; or

•

DUTIES AND RESPONSIBILITIES OF A LAWYER 3.

When necessary to collect his fees defend himself, his employees associates by judicial action.

or to

corporation and Bun Siong Yao. The latter purchased several parcels of land using his personal funds but were registered In the name of the corporations upon the advice of Atty. Aurelio. After a disagreement between Atty. Aurelio and Bun Siong Yao's wife, the former demanded the return of his investment in the corporations but when Yao refused to pay, he filed 8 charges for estafa and falsification .of commercial documents against Yao, his wife and the other officers of the corporation. Yao alleged that the sertes of suits is a form of harassment and constitutes an abuse of the confidential information which Atty. Aurelio obtained \.by virtue of his employment as counsel. Did Atty. Aurelio abuse the confidential information he obtained by virtue of his employment as counsel?

or

NOTE: Payment of retainer fee is not essential

before an attorney can be required to safeguard a prospective client's secret acquired by the attorney during the consultation with the prospective client, even if the attorney did not accept the employment (Pineda, 2009). Instances when a lawyer may testify as a witness in a case which he is handling for a client 1.

2.

3. 4.

5.

On formal matters, such as the mailing, authentication or custody of an instrument and the like; Acting as an expert on his fee; Acting as an arbitrator; Depositions; and 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.

A: YES. The long-established 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. Atty. Aurelio took advantage of , his being a lawyer in order to get back at Yao. In doing so, he has inevitably utilized information he has obtained from his dealings . with Yao and Yao's companies for his own end.

RULE 21.02, CANON 21

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 adva1~tage or that of

Lawyers cannot be allowed to exploit their

a third person, unless the client with full knowledge of the circumstances consents

profes:ilon to exact vengeance or as a tool for

thereto.

especially against a client or former client (Bun Siong Yao v. Aurelio, A.C. No. 7023, March 30, 2006).

instigating

RULE 21.05, CANON zi' A lauiyer 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

hostllity

agalllst

any person

Acts punished under Art. 209 of the Revised Penal Code (betrayal of trust by attorney) By causing damage to his client, either: a) by any malicious breach of professional duty, or b) by inexcusable negligence or ignorance; 2. By revealing any of the secrets of his clients learned by him in his professional capacity; or 3. By 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 sarri'e case, without the consent of his first dient. 1.

RULE 21.06, CANON 21

A lawyer shall avoid indiscreet conversation about a client's affairs even with members pf his family. RULE 21.07, CANON 21

A lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest Q: Bun Siong Yao is a majority stockholder of Solar Farms & Livelihood Corporation and Solar Textile Finishing Corporation. Atty. Leonardo Aurelio is also a stockholder and the retained counsel of both the

1

RULE 21.03, CANON 21

A lawyer shall not, without the written

115

UN rVERSITY OF SANTO TOMAS¢; FACULTY OF CIVIL LAW ·y

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• LEGAL ETHICS consent of his client, give information from his files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or uny other similar purposes.

replied that Niko never signed arty confidentiality agreement, and that he shared the information with the two lawyers to secure afflrmance of his legal opinion on Niko's problem. Did Atty, Henry violate any rule of ethics? Explain fully. (2008 Bar)

Q: Certain government officers, armed with a search warrant duly issued, seized among other things, a filing cabinet belonging to Atty. X. In seeking the return of the cabinet, Atty. X claimed that the cabinet contained documents and articles belonging to his clients but the government refused to return the cabinet Atty. X petitioned the court which issued the warrant, praying that the agents be prohibited from opening the cabinet. Should Atty. X's petition be given due course?

A: Atty. Henry violated Canon 21 of the CPR by sharing information obtained from his client Niko with Atty. Canonigo. Canon 20 provides that "a lawyer shall preserve the confidences or secrets of his client even after the attorney· client relationship is terminated." The fact that Atty. Canonigo is a friend from whom he intended to secure legal opmion on Niko's problem, does not justify such disclosure. He cannot obtain a collaborating counsel without the consent of the client (Rule 18.01, CPR).

A: YES. The lower court cannot order the opening of said cabinet. To do so is in violation

On the other hand, Atty. Henry did not violate Canon 21 in sharing information with his

of his rights as an attorney. It would be tantamount to compelling him to disclose his client's secrets (Lapena, 2009).

partner Atty. Meyer. Rule 21.04 of the CPR specifically provides that "a lawyer may disclose the affairs of a client of the firm to partners or ; i associates thereof unless prohibited by the client." Atty. Henry was not prohibited 'from disclosing the affairs of Niko with the members of his law firm. The etnployment of a member of a flrm Is generally considered as employment of the firm Itself (Hilado v. David, G.R. No. L-961, September 21, 1949).

NOTE: Confidential information obtains even against government agencies instrumentalities (Puna, 2009).

and

· DISCI.OSIJHE,WIIF.N AtLOWEO · · RULE 21.04, CANON 21 A lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client Professional employment of a law firm is equivalent to retainer of members thereof. In a law firm, partners or associates usually consult one another involving their cases and some work as a team. Consequently, it cannot be avoided that some information about the case received from the client may be disclosed to the partners or associates (Agpalo, 2009).

Q: In need oflegal services, Niko secured an appointment to meet with Atty. Henry of ' HENRY & MEYER LAW OFFICES. During the meeting, Niko divulged highly private information to Atty. Henry, believing that the lawyer would keep the confidentiality of the information. Subsequently, Niko was shocked when he learned that Atty. Henry had shared the confidential information with his la.w partner, Atty. Meyer, and their common friend, private practitioner Atty. Canonigo. When confronted, Atty. Henry

Q: Atty. X was hired by Mr, D to draft the demand letters and complaint-affidavit charging Mr. A of estafa. However, Atty. X later on represented Mr. A in the similar case. Consequently, Atty. X was charged with violating the Code of Professional Responsibility for representing conflicting interests. Atty. Y contends that his lawyer· client relationship with Mr. D ended when he and his group entered into the compromise settlement. Is his contention correct?

•

A: NO. Atty. X's contention is not correct The lawyer-client relationship did not terminate as of the date of the compromise agreement.He still needed to oversee the implementation of the settlement and to proceed with the criminal cases until they were dismissed or otherwise concluded by the trial court. It is also relevant to indicate that the execution of a compromise settlement in the criminal cases did not ipso facto cause the termination of the

• {.-\

UNIVERSITY

OF SANTO GOLDEN NOTES

,.... ~}

2019

TOMAS

,

116

DUTIES AND RESPONSIBILITIES cases not only because the approval of the compromise by the trial court was still required, but also because the compromise would have applied only to the civ.il aspect, and excluded the criminal aspect pursuant to Article 2034 of the Civil Code

OF A

LAWYER

Hot Potato Rule GR: A lawyer may notunreasonably from representing a client.

withdraw

, .',' · .. WITl~DRAWAL OF SERVl~ES• . . . "

Withdrawal may 'be allowed if there is a conflict of interests arising from circumstances beyond the control of the lawyer or the law firm (Black's Law Dictionary, 9th edition)

CANON22

NOTE: In cases letters"a" to "e" (above), the

XPN:

(Samson v. Era,A.C. No. 6664,July 16, 2013).

lawyer must file a written motion with an express consent of his client and the court shall determine whether he ought to be allowed to retire.

A lawyer shall withdraw his services only for good cause and upon notice appropriate in the circumstances. Right to withdraw

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 (Sec. 26,

GR: A lawyer lacks the unqualified right to withdraw once he has taken a case. By his acceptance, he has impliedly stipulated that he will prosecute the case to its conclusion. This is especially true when such withdrawal will work Injustice to a client or frustrate the ends of justice (A9palo, 2009).

Rule 138, RRC) Procedure to follow when withdrawal without client's consent

XPNs: The right of a lawyer to retire from the case before its final adjudication, which arises oo~~m: 1. 2.

•

ls

1. File a petition for withdrawal in court. 2. Serve a copy of this petition upon his client and the adverse party at least 3 days before the date set for hearing.

·

The client's written consent; or By permission of the court after due notice and hearing.

He should present his petition well in advance of the trial of the action to enable the client to secure the services of another lawyer. NOTE:

Instances when a lawyer may withdraw his services without the consent of his client (Rule 22.01, Canon 22)

However, if no new counsel has entered his appearance, the court may, in order to prevent a denial of a party's right to the assistance of counsel require that the lawyer's withdrawal be held in abeyance until another lawyer shall have appeared for the party (Agpalo, 2009).

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 in Violation of these canons and rules; c. When his Inability to work with cocounsel 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 a public office; and g. Other similar cases. (Rule 22.01, CPR) h. When there is conflict of interest.

A lawyer should not ~}esume that the court

will grant his petition f6r withdrawal. Until his withdrawal shall have been proved, the lawyer remains counsel of record who is expected by his client and by the court to do what the interests of his client require (Pineda, 2009). Q: Can a client discharge the services of his lawyer without a cause? (1994, 1997, 1998 Bar) A: YES. A client has the right to discharge his attorney at any time with or without a cause or even against his consent. 1.

117

With just cause - lawyer is not necessarily U NJVERS1TY OF SANTO TOMAS~.~·. FACULTY OF CIVIL LAW ·y

•

LEGAL ETHICS deprived of his right to be paid for his services. He may only be deprived of such right if the cause for his dismissal constitutes in itself a sufficient legal obstacle for recovery, 2.

undertakes to give his utmost attention, skill and competence to it regardless of its significance. Failure to fulfill his duties will subject him to grave administrative liability as a member of the Bar (Ceniza v. Atty. Rubia, A.C.

Without just cause

No. 6166, October 2, 2009).

No express written agreement as to fees - reasonable value of his

a.

Q: On the eve of the initial hearing for the

reception of evidence for the defense, the defendant and his counsel had a conference where the client directed the lawyer to present as principal defense witnesses 2 persons whose testimonies were personally known to the lawyer to have been perjured. The lawyer informed his client that he refused to go along with the unwarranted course of action proposed by the defendant. But the client insisted on the directive, or else he would not pay: the agreed attorney's fees. When the case was called for hearing the next morning the lawyer forthwith moved in open court that he be relieved as counsel for the defendant. Both the defendant and theplatntlff's counsel objected to the motion. Under the given facts, is the defense lawyer legally justified in seeking withdrawal from the case? Why or why not? Reason briefly. (2004 Bar)

services up to the date of his dismissal (quantum meruit). b.

There is written agreement and the Jee stipulated is absolute and reasonable - full payment of compensation.

c,

The Jee stipulated is contingent

d. e,

If dismissed before the conclusion of the action • reasonable value of his services (quantum meruit) If contingency occurs or client prevents its occurrence - full amount.

NOTE: A lawyer should question his discharge

otherwise he will only be allowed to recover on

quantum meruitbasis. Limitations on client's right to discharge the services of his lawyer When made with justifiable cause, it shall negate the attorney's right to full payment of compensation. 2. The attorney may, in the discretion of the court, intervene in the case to protect his right to fees. 3. A client may not be permitted to abuse his right to discharge his counsel as an excuse to secure repeated extensions of time to file a pleading or to indefinitely avoid a trial. 1.

A: YES, he is justified. Under Rule 22.01 of the

CPR, a lawyer may withdraw his services "if the client insists that the lawyer pursue conduct violative of these canons and rules". The insistence of the client that the lawyer present witnesses whom he personally knows to have been perjured, will expose him to criminal and civil liability and violate his duty of candor, fairness and good faith to the court. Q: Was the motion for relief as counsel

made by the defense lawyer in full accord with the procedural requirements for a lawyer's withdrawal from a court case? Explain briefly. (2004 Bar)

Conditions for substitution of counsel 1. Written application 2. Written consent of the client 3. Written consent of the attorney to be substituted, or in the absence thereof, proof of service of notice of said motion to the attorney to be substituted in the manner prescribed by the rules.

A: NO, his actuation is not in accord with the procedural requirements for the lawyer's withdrawal from a court case. Whether or not a lawyer has a valid cause to withdraw from a case, he cannot just do so and leave the client in the cold unprotected. He must serve a copy of his petition upon the client and the adverse party. He should, moreover, present his petition well in advance of the trial of the action to enable the .. client to secure the services of another lawyer.

Heavy workload as excuse for withdrawal as counsel Standing alone, heavy workload is not sufficient reason for the withdrawal of a counsel. When a lawyer accepts to handle a case, whether for a fee or gratis et amore, he

(II'-·) \.,,It

UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTES

:_1j

118

•

Il I

•

DUTIES AND RESPONSIBILITIES OF A LAWYER NOTE: In one case, respondent lawyer admitted that he deliberately failed to timely file a formal offer of exhibits because he believes that the exhibits were fabricated and was hoping that the same would be refused admission by the RTC. If respondent truly believes that the exhibits to be presented in evidence by his clients were fabricated, then he has the option to withdraw from the case. Canon 22 allows a lawyer to withdraw his services for good cause such as when the ciient pursues an illegal · or immoral course of conduct with the matter he is handling or when the client insists that the lawyer pursue conduct violative of these canons and rules (Warriner v. Atry. Dublin, A.C. No. 5239,

•

November 18, 2013). Q: Atty .. X filed a notice of withdrawal of appearance as counsel for the accused Y after the prosecution rested its case. The reason for the withdrawal of Atty. X was the failure of accused Y to affix his conformity to the demand of Atty. X for increase in attorney's fees. Is the ground for withdrawal justified? Explain. (2000 Bar}

•

A: The ground for the withdrawal is not justified. Rule 22.01 (e) of the Code of Professional Responsibility provides that a lawyer may withdraw his services when the client deliberately fails to pay the fees for his services or fails to comply with the retainer agreement. ln this case, the client has not failed to pay the lawyer's fees or to comply with the retainer agreement. He has only refused to agree with the lawyer's demand for an increase in his fees. It is his right to refuse as that is part of his freedom of contract RULE 22.02, CANON 22

A lawyer who withdraws or is discharged shall, subject to · a retaining lien, immediately turn over all papers and property to which the client is entitled, and shall cooperate with his successor fn the orderly transfer of the matter, including all information necessary for the proper handling of the matter. Duties of a discharged lawyer or one who withdraws 1. Immediately turn-over

all papers and property to which the client is entitled; and 2. To cooperate with his successor in the orderly transfer of the case.

U NlV£RSITY

11.9

OF SANTO TOMAS~ OF ClVIL LAW ....

FACULTY

LEGAL ETHICS

----lawyer's right to practice his profession as a lawyer for a certain period or for an indefinite period.

SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS (RULE 139·8, RULES OF COURT)

a. Definite b.lndefinite. - qualified disbarment; lawyer determines for himself how long or how short his suspension shall last by proving to court that he is once again fit to resume practice of law.

.· 'NAT()REAND CHARACTERISTICS OF.'· ,'i>l.~CIPi.JNARV ACTION AGAJNST LAWYERS·,

Rationale of disciplining errant lawyers

Indefinite suspension is not cruel. Indefinite suspension puts in his hands the key for the restoratiton of his rights and privileges as a lawyer (Dumagdag v. Lumaya, A.C. No. 2614,June 29, 2000). NOTE:

The practice of law is considered a privilege bestowed by the State on those who show that they possess and continue to possess the legal qualifications for the profession. Lawyers may, this, be disciplined for any conduct that is wanting of the above standards whether in their professional or in their private capacity (Tumbokon v. Att;y. Pefianco, A.C. No. 6116, August 1, 2012, PERLAS·B,ERNABE).

6. Disbarment - It is the act of the Supreme

Court of withdrawing from an attorney the right to practice law. The name of the lawyer is stricken out from the Roll of Attorneys;

Nature of the power to discipline

7. Interim Suspension- It is the temporary suspension of a lawyer from the practice of law pending lmposltlon of clinical discipline;

The power to dlsclpllne a lawyer is JUDICIAL in nature and can be exercised only by the courts. It cannot be defeated by the legislative or executive departments (Martin, 1961).

Includes: a. Suspension upon conviction of a "serious crime" b, Suspension when the lawyer's continuing conduct is or is likely to watch cause of immediate and serious injury to a client or public

The power to disbar and to reinstate is an inherently judicial function (Andres SBC· S85, February 29, 1984).

v. Cabrera,

NOTE: The power to disbar must be exercised

with great caution, and only in a clear case of misconduct that seriously affects the standing and character of the lawyer as an officer of the Court and as a member of the bar. Thus, where a lesser penalty, such as temporary suspension, could accomplish the end desired, disbarment should never be decreed (Ventura v. Samson, A.C. No. 9608, November 27, 2012).

8.

Powers of the Court of Appeals and the Regional Trial Courts in Relation to the Discipline of Lawyers [SWARPJ

Forms of disciplinary measures by the Supreme Court (WARCS·DIP)

•

They are also empowered to:

1. Warning· an act of putting one on his guard against an impending danger, evil, consequence or penalty. 2. Admonition- a gentle or friendly reproof mild rebuke, warning, reminder or counselling on a fault, error or oversight; an expression of authoritative advice; 3. Reprimand- a public and formal censure or severe reproof, administered to a person at fault by his superior officer . or the body to which he belongs; 1 4. Censure- official reprimand; 1 5. Suspension· temporary withholding of' a UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTf:S

Probation it is a sanction that allows a lawyer to practice law under specified conditions.

1.

2. 3.

4. 5.

Suspend an attorney from practice for any of the causes named in Sec 27, Rule 138 until further action of the Supreme Court in the case (Sec. 16) Rufe 139-BJ; Warn; Admonish; Reprimand; and Probation (IBP Guidelines)

•

NOTE: The CA and RTC cannot disbar a lawyer. Q: Atty. D was required by Judge

120

H of the

-l

SUSPENSION,

DISBARMENT

AND DISCIPLINE

Regional Trial Court (RTC) of Manila to show cause why he should not be punished for contempt of court for shouting invectives at the opposing counsel and harassing his witness.

1.

Prior disciplinary offenses: Dishonest or selfish motives; 3. A pattern of misconduct; 4. Multiple offenses; 5. Bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; 6. Submission of false evidence, false statements, or other deceptive practices during the disciplinary process; 7. Refusal to acknowledge wrongful nature of conduct; 8. Vulnerability of victim; 9. Substantial experience in the practice of law; and 10. Indifference to making restitution (IBP Guidelines 9.22).

2.

Assuming that there was sufficient cause or ground, may Judge H suspend Atty, D from the practice of law? If Judge H finds that the actuations of Atty. D are grossly unethical and unbecoming of a member of the bar, may Judge H di.sbar Atty. D instead? (2014 Bar) A: Under Section 28, Rule 138 of the Rules of Court, a Regional Trial Court may suspend a lawyer from the practice of law for any of the causes provided in Section 27, until further action fr.om the Supreme Court. But it may not disbar him, for only the Supreme Court can disbar a lawyer pursuant to its constitutional power to admit persons to the practice of law.

Mitigating factors which may be considered in decreasing the degree of discipline to be imposed:

•

1

1.

Other sanctions and remedies 1. Restitution; 2. Assessment of costs; 3. Limitation upon practice; 4. Appointment of a receiver; 5. Requirement that a lawyer take the bar examination or professional responsibility examination; 6. Requirement that a lawyer attend continuing education courses; and 7. Other requirements that the highest court or disciplinary board deems consistent with the purposes of the sanctions.

Factors to be considered Lawyer's sanctions

OF LAWYERS

2.

3. 4. 5.

6. 7. 8. 9.

in imposing

1. The duty violated; 2. The lawyer's mental state; 3. The actual and potential injury caused by the lawyer's misconduct; and 4. The existence of aggravating and mitigating factors (Sec. 3.0, Guidelines for imposing Lawyer's sanctions.).

10.

11. 12.

Good faith in the acquisition of a property of the client subject of litigation (In Re: Ruste, A.M. No. 632,june 27, 1940); Inexperience of the lawyer (Munoz ·v. People, G.R. No. L-33672, September 28, 1973); Age (Santos v. Tan, A.C. No. 2697, April 19, 1991); Apology (Munoz v. People, G.R. No. I,33672, September 28, 1973); Lack of Intention to slight or offend the Court (Rheem of the Philippines, Inc. v. Ferrer, G.R. No. L-22979,january 27, 1967); Absence of prior disciplinary record; Absence of dishonest or selfish motive; Personal or emotional problems; Timely good faith effort to make restitution or to rectify consequences of misconduct; Full and free disclosure to disciplinary board or cooperative attitude toward the proceedings; Character or reputation; Physical or mental disability or impairment; Delay in disciplinary proceedings; Interim rehabilitation; Imposition of other penalties or sanctions; Remorse; Remoteness of prior offenses (IBP Guidelines 9.32).

NOTE: After misconduct has been established, aggravating and mitigating circumstahces may be considered in deciding what sanction to impose.

13. 14. 15. 16. 17.

Aggravating factors which may be considered in increasing the degree of discipline to be imposed:

Factors which should not be considered as aggravating or mitigating:

121

UN [VERSITY OF SANTO TOMAS~ FACULTY•9F CIVIL LAW

"V'

•

LEGAL ETHICS 1. Forced or compelled restitution 2. Agreeing to the client's demand for certain improper behavior or result 3. Withdrawal of complaint against the lawyer 4. Resignation prior to completion of disciplinary proceedings 5. Complainant's recommendation as to sanction; 6. Failure of injured client to complain . ·

. .

. .. SUl'GENERIS

· ·.

defenses available \n civil and criminal actions inapplicable in disciplinary proceedings. Q: Is the defense of Atty. R in a disbarment

complaint for immorality filed by his paramour P that P is in par; delicto material or a ground for exoneration? Explain. (2010 Bai·} A: The defense of lnpari delicto is immaterial in an administrative case which is sui generis. The administrative case is about the lawyer's conduct, not the woman's (Mortel v. Aspiras,

. . ·

Sui generis in nature (2002 Bar)

A.M. No. 145,

Administrative cases against lawyers belong to a class of their own (sui generis). They are distinct from and may proceed Independently of civil and criminal cases (In re Almacen, G.R. No. f.,-27654, February 18, 1970; Puna, 2009). It is:

Q: Arabella filed a complaint for disbarment against her estranged husband, Atty. P, on the ground of Immorality and use of Illegal drugs. After Arabella presented evidence and rested her case before the Investigating Commissioner of the IBP Committee on Bar Discipline, she filed an Affidavit of Desistanr.e and motion to dismiss the complaint, she and her husband having reconciled for the sake of their children. You are the Investigating Commissioner of the IBP. Bearing in mind that the family is a social institution which the State is dutybound to preserve, what will be your action on Arabella's motion to dismiss the complaint? (2010 Bar}

a.

Neither purely civil nor purely criminal, they are investigations by the Court into the conduct of one of its officers. b. Not a civil action because there is neither plaintiff nor respondent, and involves no private interest. The complainant is not a party and has no interest in the outcome except as all citizens have in the proper administration of justice. There is no redress for private grievance. c. Not a criminal prosecution because it is not meant as a punishment depriving him of source of livelihood but rather to ensure that those who exercise the function should be competent, honorable and reliable so that the public may repose confidence in them. Main objectives suspension

of

disbarment

A: I would still deny the motion to dismiss. The general rule is that "no investigation shall be interrupted or terminated by reason of the deslstance, settlement, compromise, restitution, withdrawal of the charges or failure of the complainant to prosecute the same unless the Supreme Courtmotu proprio or upon recommendation of the IBP Board of Governors determines that there is no compelling reason to continue with the proceedings. An administrative investigation of a lawyer is sui generis, neither a civil nor criminal proceeding. An affidavit of desistance has no place in it

and

1. Compel the attorney to deal fairly and honestly with his clients; 2. Remove from the profession a person whose misconduct has proved him unfit to be entrusted with the duties and responsibilities belonging to the office of an attorney; 3. Punish the lawyer; 4. Set an example or a warning for the other members of the bar; 5. Safeguard the administration of justice from incompetent and dishonest lawyers; 6. Protect the public.

Q: Atty. Hyde, a bachelor, practices law in the Philippines. On long weekends, he dates beautiful actresses in Hong Kong. Kristine, a neighbor in the Philippines, filed with the Supreme Court an administrative complaint against the lawyer because of sex videos uploaded through the internet showing Atty. Hyde's sordid dalliance with the actresses in.Hong Kong. In his answer, Atty, • Hyde (a.) questions the legal personality and interest of Kristine to institute the

NOTE: The purpose and the nature of disbarment proceedings make the number of {.-.}

\,,.,~

U NI VER SI TY O F SA NT O TO MAS 2019 GOLDEN NOTES

December 28, 1956).

lZZ

•

•

SUSPENSION,

DISBARMENT

AND DISCIPLINE

Rule VII, Section 1 of the Rules of Procedure of the CBD-IBP, which provides for a prescriptive period for the filing of administrative complaints against lawyers, should be struck as void and of no legal effect for being ultra vires (Heirs of Falame v. Att;y. Baguio, A.C. No. 6876, March 7, 2008).

complaint and [b.] insists that he is a bachelor and the sex videos relate to his private life which is outside public scrutiny and have nothing to do with the law practice. Rule on the validity of Atty. Hyde's defenses. (2009 Bar)

•

•

Ai a. The legal personality and interest of Kristine to initiate the complaint for disbarment is immaterial. A disbarment proceeding is sui generis, neither civil nor a criminal proceeding. Its sole purpose is to determine whether or not a lawyer is still deserving to be a member of the bar. In a real sense, Kristine is not a plaintiff; hence, interest on her part is not required. b. Atty. Hyde's second defense is untenable. His .duty not to engage in unlawful, dishonest, immoral and deceitful conduct under Rule 1.01 of the CPR, as well as his duty not to engage in scandalous conduct to the discredit of the legal professiorl under Rule 7.03, is applicable to his private as well as tohis professional life.

~ NOTE: At most, the delay in the institution of the administrative case would merely mitigate the erring lawyer's liability (Heck v. Judge Santos, A.M. No. RT]-01-1657, February 23, 2004). No double or multiple dlsbrament Q: Atty. Gutierrez asked for a cash loan

twice from Yuhico, but when he asked for a third time, Yuhico refused and demanded payment of his debts. Atty. Gutierrez failed to pay which led to the filing of a complaint before the IBP·CBD for non-payment of just • 'debts. It turned ·out that Atty. Gutierrez was previously disbarred in the case of Huyssen v. Atty. Gutierrez for gross misconduct in view of his failure to pay his debts and his issuance of worthless checks. May Atty. Gutierrez be disbarred for the second time?

Q: Atty. Cristal was C Five's Corporate

Secretary and Legal Counsel. Atty. Cristal recommended the purchase of a resort in Laguna, with the assurances that the title covering the property was "clean", but no title was transferred in C Five's name because title covering the property is a Free Patent and under the five-year prohibition on disposition. C Five demanded the return of Pl,200,000.00 as expenses for transfer, which was unheeded. lsalos, Director and Treasurer of C Five, filed an administrative case against her. Atty. Cristal returned the amount, then C Five withdraw the complaint. Will the case prosper?

A: NO. The Supreme Court held that while the

IBP recommended to disbar Atty. Gutierrez for the second time, we do not have double or multiple disbarment in our laws or jurisprudence and neither do we have a law mandating a minimum 5-year requirement for readmission, as cited by the IBP. Thus, while Gutierrez's infraction calls for the penalty of disbarment, they cannot disbar him anew (Yuhico v. Att;y. Gutierrez, A.C. No. 8391, November 23, 2010). Q: Labor Arbiter Atty. Barrios was tasked to re-compute the monetary awards due to the Abella who sought to execute the CA Decision which had already been final and executory. When Abella moved for execution - twice at that - Atty, Barrios slept on the same for more than a year. It was only when Abella paid Atty. Barrios a personal visit, offering a portion of the monetary award thereof, that the latter speedily issued a writ i>f execution three (3) days after. Abella filed a disbarment case against Atty. Barrios, but Atty, Barrios was already disbarred \ in an earlier administrative case. If found guilty, should he be meted the penalty of disbarment?

A: YES. Return of the full amount to C Five and the Isales' withdrawal of the complaint against her are not ample grounds to completely exonerate the administrative liability of Atty. Cristal It is settled that a case of suspension or disbarment may proceed regardless of interest or lack of interest of the complainant (lsalos v. Att;y. Cristal, A.C. No. 11822, November 22, 2017, PERLAS-BERNABE). ·

·

PRESCRIPTION

·

OF LAWYERS

.

No prescriptive period for the filing of a administrative complaint against an erring lawyer

123

U NrVERSITY OF SANTO TOMAS~ F.'I.CULTY OF ClVIL

LAW ••.

•

LEGAL ETHICS A: NO. He should not be disbarred. Although Section 27, Rule 138 of the Rules of Court states that when a lawyer ls found guilty of gross immoral conduct or gross misconduct, he may be suspended or disbarred, the Court takes judicial notice of the fact that he had already been disbarred in a previous administrative case. Therefore, the Court is precluded from duplicltously decreeing the same (Abella v. Atty. Barrios, A.C. No, 7332,June 18, 2013, PERLAS-BERNABE).

.

.·

.. ·:·

.GROUNDS

Specific grounds for disbarment of a lawyer

1.

.

court, his client, to the legal profession and to the public.

NOTE: Disbarment is merited when the action is not the lawyer's first ethical infraction of the same nature (Que v. Revillo, A.C. No. 7054, December4, 2009). Malpractice It refers to any malfeasance or dereliction of duty committed by a lawyer (Tan Tek Beng v. David, A.C. No. 1261, December ·29 1983; Lapena,Jr.,2009).

· ·. ."

suspension

or Legal Malpractice

Deceit;

It consists of failure of an attorney to use such skill, prudence and diligence as a lawyer of ordinary skill and capacity commonly possess and exercise in the performance of tasks which they undertake, and when such failure proximately causes damage, it gives rise to an action in tort (Tan Tek Beng v. David, A.C. No. 1261, December29, 1983).

2. Malpractice: 3. 4.

Grossly immoral conduct; Conviction of a crime involving moral turpitude; 5. Violation of oath of office; 6. Willful disobedience of any lawful order of a superior court; 7. Corrupt or willful . appearance as an attorney for a party to a case without authority to do so (Sec. 27, Rule 138, RRC); 8. Non-payment of IBP membership dues (Santos, Jr. v. At!JI. Llamas, A.C. No. 4749, January 20, 2000).

Gross Misconduct

It is any inexcusable, shameful or flagrant unlawful conduct on 'the part of the person concerned in the administration of justice which is prejudicial to the rights of the parties or to the right determination of a cause, a conduct that is generally motivated by a premeditated, obstinate or intentional purpose (YumoJ Jr. v. Ferrer, Sr; A.G. No. 6585, April 21, 2005).

The statutory enumeration is not to be takenas a limitation on the general power of Supreme Court to suspend or disbar a lawyer (In Re: Puno,A.C. No. 389, February 28, 1967). HENCE, the grounds enumerated are NOT exclusive.

NOTE: Lending money by a justice of Supreme

It. constitutes improper or wrong conduct, the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies a wrongful intent and not mere error of judgment (Abella v. At!JI. Barrios, A.C. No. 7332, June 18, 2013, PERLAS-BERNABE).

Court is not a ground for disbarment and helping a person apply for sale application on a lot is not an offense and not also a ground for disbarment (Ofazo v. Justice Tinga (Ret.), A.M. No.10-5-7-SC,December7, 2010). Lawyer's misconduct committed prior and after admission to the bar and its effects

NOTE: The deliberate failure to pay just debts and the issuance of worthless checks constitute gross misconduct Batas Pambansa Big. 22 was "designed to prohibit and altogether eliminate the deleterious and pernicious practice of issuing checks with insufficient funds, or with no credit, because the practice is deemed a public nuisance, a crime against public order to be abated." His violation exhibited his indifference towards the pernicious effect of his illegal act to public interest and public order (Lim v. Ato/, Rivera, A.C. No. 12156, June

1. PRIOR to admission to the bar- acts of misconduct prior to admission include those that indicate that at the time the lawyer took his oath, he did not possess the required qualifications for membership in the bar. Consequently, the cancellation of his license is Justified. 2. AFTER admission to the bar - those which cause loss of moral character on his part or Involve violation of his duties to the UNJVERSITY

2019

OF SANTO TOMAS NOTES

GOLDEN

,:;

124

•

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SUSPENSION,

DISBARMENT

AND DISCIPLINE

20, 2018, PERLAS-BERNABE).

OF LAWYERS

Other statutory grounds for suspension and disbarment of members of the bar

Grossly immoral conduct

and wwhich shows a moral indifference to the opinion of the good and respectable members of the community (Arciga v, Maniwang, A.M. No. 1608, August 14, 1981; Abella v. Atty. Barrios, A.C. No. 7332, June 18, 2013, PERLASBERNABE).

1. Acquisition of interest in the subject matter of the litigation, either through purchase or assignment (Art. 1491, NCC); 2. Breach of professional duty, inexcusable negligence, or ignorance, or for the revelation of the client's secrets (Art 208, RPC); 3. Representing conflicting interests (Art. 209, RPC).

An act of personal immorality on the part of a lawyer in his private relation with opposite sex may puthis character in doubt But to justify suspension or disbarment, the act must not only be immoral, it must be grossly immoral (Abaiqa» v. Paz, A.M. No. 997, September 10, 1979).

Any errant behavior on the part of a lawyer, be it in his public or private activities, which tends to show him deficient in moral character, honesty, probity or good demeanor, is sufficient to warrant his suspension or disbarment (Tiong v. Atty. Florendo, A.C. No. 4428, December 12, 2011, PERLAS-BERNABE).

It treads the line of grossness when it is so corrupt as to constitute a criminal act, or so unprincipled as to be reprehensible to a high degree, or when committed under such scandalous or revolting circumstances as to shock the community's sense of decency (Abella v. Atty. Barrios, A.C. No. 7332, June 18, 2013, PERLAS-BERNABE).

Other grounds for discipline

Immoral conduct has been defined as· that conduct which Is wilful, flagrant, or shameless,

1.

•

Non-professional misconduct GR: A lawyer may not be suspended

or disbarred for misconduct in his nonprofessional or private capacity. XPN: Where such is so gross as to show

NOTE: Mere intimacy between a lawyer and a

him to be morally unfit for office or unworthy of privilege, the court may be justified in suspending or removing him from the Roll of Attorneys. (2005 Bar)

woman with no impediment to marry each other, and who voluntarily cohabited and had two children, is neither so corrupt to constitute a criminal act nor so unprincipled as to warrant disbarment or disciplinary action against the man as a member of the bar (Arciga v. Maniwang,A.C. No.1608,August14, 1981}.

2. 3.

Moral turpitude It is defined as "everything that is . done contrary to justice, honesty, modesty, or good morals; an act of baseness, vileness, or depravity in the private and social duties which a man owes 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 (Soriano v. Dizon, A. C. No. 6792,January 25, 2006),

Promoting to violate or violating penal laws Misconduct in discharge of official duties A lawyer who holds a government office may not be disciplined as a member of the bar for misconduct in the discharge of his duties as government official. However, if the misconduct is in violation of the CPR or of his 'oath as a lawyer or is of such a character as to affect his qualifications as a lawyer, he may be subject to disciplinary action such as disbarment (Col/antes v. Renomeron, A.C. No. 3056, August 16, 1991). NOTE: This

rule does not apply to impeachable officials like Supreme Court justices, members of constitutional commissions and Ombudsman because they can only be removed by impeachment

All crimes of which fraud or deceit is an element or those inherently contrary to rules of right conduct, honesty, or morality in civilized community(Court of Administrator v. SanAndres,A.M. No. P·89·345, May31, 1991). 4.

lZS

Commission offraud or falsehood; and U N£VERSITY

OF SANTO TOMAS~

_J'----------------------~-----F~A~C-U-L~T-Y~O-F-C-lV_IL_L_A_'~"~--~------'-----

LEGAL ETHICS 5.

Misconduct as notary public

There can be no doubt as to the right of a citizen to bring to the attention of the proper authority acts and doings of public officers which citizens feel are incompatible with the duties of the office and from which conduct the citizen or the public might or does suffer undesirable consequences. (2000 Bar)

NOTE: By having himself commissioned as notary public, a lawyer assumes duties in a dual capacity, the non-performance of which may be a ground for discipline as a member of the bar. Q: Jose secured the services of Atty, Lada to pursue a case for partition of property. After accepting the engagement, Atty. Lada filed the corresponding complaint eventually dismissed by the RTC for lack of cause of action and insufficiency of evidence. Atty, Lada allegedly asked for the amount ofP10,000.00 for the payment of appeal fees and other costs. Upon payment, notice of appeal was filed but was also dismissed for being filed out of time. Atty. Lada however, did not disclose such fact and, instead; showed to Jose an Order purportedly issued by the R'J'.C directing the submission of the results of a. DNA testing to prove his flllation, When Jose found out that the Order was spurious, he filed a disbarment case against Atty. Lada. Will the case prosper?

NOTE: A disbarment proceeding may proceed regardless of interest or lack of interest of the complainant [Rayos-Ombac v. Rayos, A.C. No. 2884, January 28, 1998j. However, if the complainant refuses to testify and the charges cannot then be substantiated, the court will have no alternative but to dismiss the case. Characteristics of disbarment proceedings 1. Sui Generis 2. The defense of "double jeopardy" cannot be availed of in a disbarment proceeding; 3. It can be initiated motu proprio by the Supreme Court or IBP. It can be initiated without a complaint; 4. It is imprescriptible; 5. Conducted confidentially; 6. It can proceed regardless of the interest or the lack thereof on the part of the complainant; and 7. It in Itself constitutes due process oflaw. 8. Whatever has been decided in a disbarment case cannot be a source of right that may be enforced in another action; 9. In pari delicio rule not applicable; 10. No prejudicial question in disbarment proceedings; 11. Penalty in a disbarment case cannot be in the alternative; and 12. Monetary claims cannot be granted except restitution and return of monies and properties of the client given in the course · of the lawyer-client relationship.

A: YES. Atty. Lada already knew of the dismissal of complainant's partition case before the RTC. Moreover, Atty. Lada was inexcusably negligent in filing complainant's appeal only on September 12, 2007, or way beyond the reglementary period therefor, thus resulting in Its outright dismissal. Clearly, Atty. Lada failed to exercise such skill, care, and diligence as men of the legal profession commonly possess and exercise in such matters of professional employment Worse, Atty. Lada attempted to conceal 'the dismissal of complainant's appeal by fabricating the Order which purportedly required a DNA testing to make it appear that complainant's appeal had been given due course, when in truth, the same had long been denied. In so doing, he engaged in an unlawful, dishonest, and deceitful conduct that caused undue prejudice and unnecessary expenses on the part of complainant For gross misconduct, Atty. Lada should be disbarred (Tan v. Diamante, A.C. No. 7766, August 5, 2014). ..

.

PROCEEDINGS

NOTE:The confidentiality of the proceedings is a privilege which may be waived hy the lawyer in whom and for the protection of whose personal and professional reputation it is vested, as by presenting the testimony in a disbarment case or using it as impeaching evidence in a civil suit (Villalon v. !AC, G.R. No. L-73751, September 24, 1986).

. ·

Initiation of disbarment

Offices authorized to disbarment proceedings

Any interested person or the court motu proprio may initiate disciplinary proceedings.

1'. Supreme Court (Sec. 13, Rule 139-B, RRC) 2. IBP through its Commission on Bar

{--~)

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UNIVERSITY OF SANTO 2019 GOLDEN NOTES

TOMAS

:

126

investigate

•

•

SUSPENSION,

DISBARMENT

Discipline or authorized investigator (Sec. 2, Rule 139-B, RRC.J 3. Office of the Bar Confidant (Sec. 13, .Rule 139-8, RRC as amended by 8.M. No. 1645) Purposes of disbarment

AND DISCIPLINE

OF LAWYERS

respondent by clear, convmcmg and satisfactory proof, disclosing a case that is free from doubt as to compel the exercise by the Court of Its disciplinary power. Thus, the adage ' that he who asserts not he who denies, must prove (Atty. Dela Fuente- Torres et. al v.

•

Dalanqin, A.C. No. 10758, December 5, 2017)

Disbarment is not meant as a punishment to deprive an attorney of a means of livelihood but rather intended to: 1. To protect the public 2. To protect and preserve the legal profession 3. To compel the lawyer to comply with his duties and obligations under the CPR. Quantum of proof The quantum of proof in administrative cases against lawyers is substantial evidence (Reyes v. Nieva, A.C. No. 8560, September 6, 2016, PERLAS-BERNABE). Substantial evidence is that amount of relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds, equally reasonable, might conceivably opine otherwise (Atty. Dela Fuente· Torres et. al v. Dalangin, A.C. No. 10758, December 5,- 2017; Gubaton v. Atty. Amador, A.C. No. 8962, July 9, 2018, PERLAS-BERNABE).

Q: Adante filed before the Ombudsman a

letter, alleging that it was "intimated to her" that Atty. Cajayon, whom she met only once, was in cahoots with Justice Lantion in engaging in the shameful business of "selling" decisions involving cases from the CA·CDO to the highest bidder. Subsequently, Ofendoreyes filed before the same agency a letter, requesting the latter to investigate and stop the purported partnership of Atty. • · Cajayon and Justice Lantion from the business of selling decisions in exchange for money. The OCA found that the lettercomplaints were insufficient in form and substance in that they: (1) were not verified; and (2) lacked affidavits of persons who may have personal knowledge of the facts to prove or substantiate the letter-complaints' allegations against Atty. Cajayon and Justice Lantion, as well as supporting documents. Will the case prosper? A: NO. Under the Rules of Court, administrative complaints both against lawyers and judges of regular and special courts as well as Justices of the Court of Appeals a'nd the Sandiganbayan must be verified and supported by affidavits of persons who have personal knowledge of the facts alleged therein or by documents which may substantiate said allegations. Jurisprudence dictates that in administrative· . proceedings, complainants bear the burden of proving the allegations in their complaints by substantial evidence. ff they fail to show in a satisfactory manner the facts upon which their claims are based, the respondents are not obliged to prove their exception or defense. The evidence against the respondent should be competent and should be derived from direct knowledge. Adante and Ofendoreyes not only failed to comply with the formal requirements provided in the Rules of Court, but also did not ' present evidence to lend any ostensible merit to their letter-complaints. Thus, the case should be dismissed (Re: Letter of 0/endoreyes

REASON: The evidentiary threshold of substantial evidence as opposed to preponderance of evidence - is more in keeping with the primordial purpose of and essential considerations attending this type of cases. Public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who by their misconduct have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such posture, there can thus be no occasion to speak of a complainant or a prosecutor (Reyes v. Nieva, A.C. No. 8560, September 6, 2016, PERLAS-BERNABE).

Alleging Illicit Activities of a Certain Atty. Cajayon Involving Cases In CA, A.M. No. 16·12· 03-CA,June 6, 2017, PERLAS-BERNABE).

The burden of proof rests on the complainant, and she must establish the case against the

127

UNIVERSITY OF SA NT O TO~IAS ~ FACULTY OF CIVIL LAW ...

•

LEGAL ETHICS despite his conviction of a crime Involving moral turpitude. Sesbref\o argued that the executive clemency granted to him restored his full civil and political rights. Decide,

Q: JlldoGubaton filed an administrative

case against Atty. Amador for gross immorality for maintaining an illicit relationship with his wife, Bernadette. Testimonies of Bernandette's house helper and Bernadette's clinic secretary were argued to be hearsay, Gubaton submitted several other pieces of evidence. First, Gubaton's own account that he actually saw Atty. Amador and Bernadette together on various intimate occasions. Second, corroborative statements in an affidavit executed by Navarez, who works in BIR as a messenger and goes around the city in relation to his work. Third, description by Gubaton's sister, Nila, about how Atty. Amador would often visit Bernadette and spend the night in their residence, while she was still living with Bernadette and their children thereat. Fourth, love letters/notes supposedly written by Bernadette to Atty, Amador. Is there substantial evidence to prove that Atty. Amador ls guilty of gross immorality.

A: There was no mention that the executive clemency was absolute and unconditional and restored Sesbreiio to his full civil and political rights. The executive clemency merely "commuted to an indeterminate prison term of 7 years and 6 months to 10 years impriscnment", the penalty imposed on Sesbreiio. Commutation is a mere reduction of penalty and it only partially extinguished criminal liability. The penalty for Scsbrefio'scrlme was never wiped out. For unauthorized practice of law, Sesbrefio is disbarred (Garcia v. Atty. Sesbreiio, A.C. No. 7973 and .4.C. No.10457, February 3, 2015). Q: After passing the Philippine Bar in 1986,

Richards practiced law until 1996 when he migrated to Australia where he subsequently became an Australian citizen in 2000. As he kept himself abreast of the legal developments, petitioner learned about The Citizenship Retention and ReAcquisi.tion Act of 2003 (RA 9225), pursuant to which he reacquired his Philippine citizenship in 2006, He took his oath of allegiance as a Filipino citizen at the Philippine embassy in Canberra, Australia. Jaded by the laid-back life in the outback, he returned to the Philippines in December of 2008. After the holidays, he established his own law office and resumed his practice of law. Months later a concerned woman who had secured copies of Atty. Richard's naturalization papers with the consular authentication, filed with the Supreme Court an anonymous complaint against him for illegal practice of law. May the Supreme Courtact upon the complaint filed by an anonymous person?

A: YES. To satisfy the substantial evidence requirement for administrative cases, hearsay evidence should necessarily be supplemented and corroborated by other evidence that are not hearsay. The following evidence sufficiently prove the existence of an illicit relationship: (1) Gubaton's own account: (2) corroborative statements in an affidavit executed by Navarez, a neutral . and disinterested witness; (3) description by Gubaton's sister, Nila; and ( 4) love letters/notes supposedly written by Bernadette to Atty. Amador (Gubaton v. At0,'. Amador, A.C. No. 8962, July 9, 2018, PERL.AS· BERNABE).

Q: Atty. Sesbrefio was found guilty of murder and was sentenced to suffer the penalty of reclusion perpetua by the Cebu City RTC. On appeal, however, the Supreme Court downgraded the crime to homicide. On July 27, 2001, Sesbrefio was released from confinement following his acceptance of the conditions of his parole. The order of commutation provides that his original sentence is commuted to an indeterminate prison term of from 7 years and 6 months to 10 years Imprisonment and. to pay an Indemnity of PSO,ooo.op. Dr. Garcia filed a disbarment case against Sesbrefioalleglng that he is practicing' law despite his previous conviction for homicide and continuing to engage in the practice of law UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTES

•

A: YES. The Supreme '.~ourt may act upon the complaint filed by an anonymous complainant,

because the basis of the complaint consists of documents with consular authentications which can be . verified being public records. There is no need to identify the complainant when the evidence is documented and verifiable (In Re: Anonymous Complaint versus Judge Bcbiverrt, A.M. No. 697·CF/, October 30, 1975). Besides, the Supreme Court or the IBP may initiate disbarment proceedings motu

proprio,

128

• '.j

1

ie: I

SUSPENSION, · ·

. PROCEDURE FOR

DISBARMENT DISBARMENTo ', ·

AMENDMENT OF SEC. 1, RULE 139-B . ·. :. REVISED RULES OF COURT :

AND DISCIPLINE

B.°M, N.O. 1645, OC:TOaER 13,

2.

OF.THE : . : .

2'015 -, · .

3.

Proceedings for disbarment, suspension or discipline of attorneys may be taken by the: 1. Supreme Court motu proprio; or 2. Upon the feeling of a verified complaint of any person before the Supreme Court or the Integrated Bar of the Philippines. NOTE: The complaint shall state dearly 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.

4.

By virtue of B.M. No. 1645, the IBP has no power to dismiss complaint against lawyers. It may only recommend the dismissal of such complaints as the power to dismiss complaint'> against lawyers is solely reserved to the Supreme Court. · DISBARMENT

.

.

. .'

.

PROCEEDINGS .BEFORE THE IBP ·

.

·.

5.

·

.·· 6.

The IBP shall forward to the Supreme Court for appropriate disposition all complaints for disbarment, suspension and discipline filed against incumbent Justices of the Court of Appeals, Sandiganbayan, Court of Tax Appeals and judges of lower courts, or against lawyers in the government service whether or not they are charged singly or jointly with other respondents; and whether or not such complaint deals with acts unrelated to the discharge of their official functions.

7.

If the complaint is filed before the IBP, six (6) copies of the verified complaint shall be filed with the Secretary of the IBP or the Secretary of any of its chapter who shall forthwith transmit the same to the IBP Board of Governors for assignment to an investigator.

OF LAWYERS

If the complaint is meritorious, the respondent shall be served with a copy requiring him to answer within 15 days from service. The respondent shall file a verified answer containing the original and five (5) legible copies; after receipt of the answer or lapse of the period to do so, the Supreme Court, may, motu proprio or upon recommendation, the IBP Board of Governors suspend an attorney from practice, for any of the causes under Rule 138, Sec. 27, during the pendency of the investigation After joinder of the issues or failure to answer, the respondent shall be given full opportunity to· defend himself. But if the respondent fails to appear to defend himself in spite of notice, the investigator may proceed ex parte. The investigation shall be terminated within 3 months from commencement unless extended for good cause by the Board of Governors upon prior application. i The investigator shall make a report to the Board of Governors within 30 days from termination of the investigation which report shall contain his findings and recommendations together with the evidence. The Board of Governors shall have the power to review the decision of the investigator. Its decision shall be promulgated within a period not exceeding 30 days from the next meeting of the Board following the submission of the report of the investigator. If the decision is a finding of guilt of the charges, the IBP Board of Governors shall issue a resolution setting forth its findings and recommendations which shall be transmitted to the Supreme Court for final action together with the record.

· RE: CLARIFJCATION ON THE RULES OF · PROCEDURE' OF THE COMMISSION . · ON BAR DISCIPLINE. ·

a:M. N'o. 1755, JUNE 17, 2008

.

Propriety of a motion for reconsideration ·

1.

. ·

PROCEOURAL STEPS FOR . ' . D SBARMENT IN 'r'HE IBP· ·

.

· . .'

1.

The Board of Governors shall appoint from among the IIJP members an investigator or when special circumstances so warrant, a panel of 3 Investigators to investigate the complaint;

2.

129

A party can no longer file a motion for reconsideration of any order or resolution of the Investigating Commissioner, such motion being a prohibited pleading. Regarding the issue of whether a motion for reconsideration of a decision or resolution of the Board of Governors U NIVE'RSITY OF.1SA NTO TOMAS~ FA CUL TY.;OF CIVIL LAW

·y

•

•

LEGAL ETHICS {BOG) can be entertained, an aggrieved party can file said motion with the BOG within fifteen (15) days from notice of

lower court, in which case the investigation shall proceed in the same manner provided in sections 6-11 hereat; save that the review off the report of investigation shall be conducted directly by the Supreme Court.

receipt thereof by said party. 3. In case a decision is rendered by the BOG

4.

that exonerates the respondent or imposes a sanction less than suspension or disbarment, the aggrieved party can file a motion for reconsideration within the 15day period from notice. If the motion is denied, said party can file a petition for a review under Rule 45 of the Rules of Court with the Supreme Court within fifteen (15} days from notice of the resolution resolving the motion. If no motion for reconsideration ls filed, the decision shall become final and executory and a copy of said decision shall be furnished to the Supreme Court If the imposable penalty is suspension from the practice oflaw or disbarment, the BOG shall issue a resolution setting forth its findings and recommendations. The aggrieved party can file a motion for reconsideration of said resolution with the BOG within fifteen (15) days from notice. The BOG shall first resolve the incident and shall thereafter elevate the assailed resolution with the entire case records to the Supreme Court for final action. If the 15-day period lapses without any motion for reconsideration having been filed, then the BOG shall likewise transmit to this Court the resolution with the entire case records for appropriate action.

The complaint may also be referred to the IBP for investigation, report, and recommendation (Sec. 13, Rule 139-b, RRC, as amended by B.M. No. 1645). Q: Atty. Narag's wife filed a petition for disbarment because he courted one of his students, maintained the said student as a mistress and had children with her. On the other hand, Atty. Narag claimed that his wife was a possessive, jealous woman who abused him and filed the complaint against him out 'of spite,, Atty. Narag, however, failed to refute the testimony given against him as his actions were of public knowledge. ls Atty. Narag's disbarment appropriate? A: YES, Atty. 'Narag failed to prove his innocence because he failed to refute the testimony given against him and it was proved that his actions were of public knowledge and brought disrepute and suffering to his wife and children. Good moral character is a continuing qualification required of every member of the bar. Thus, when a lawyer fails to meet the exacting standard of moral integrity, the Supreme Court may withdraw his or her privilege to practice law. When a lawyer is found guilty of grossimmoral conduct, he may be suspended or disbarred. As lawyer, one must not only refrain from adulterous relationships but must not behave in a way that scandalizes the public by creating a belief that he is flouting those moral standards (Narag v. Atty. Narag, A.C. No. 3405, June 29, 1998).

NOTE: Lawyers must update their records with the IBP by informing the IBP National Office or their respective chapters of any change in office or residential address and other contact details. In case such change is not duly updated, service of notice on the office or residential address appearing in the records of the IBP National Office shall constitute sufficient notice to a lawyer for purposes of administrative proceedings against him (Keld Stemmerik v. Atty. Leonuel Mas, A.G. No. 80101 June 16, 2009).

•

a

•

Effect of lawyer's death in an administrative proceeding against him

1. Renders the action moot and academic, but DISBARMENT PROCEEDINGS BEFORE THE ··· . . SUPREME COURT · · : .. 1.

2.

In proceedings initiated by the Supreme Court or In other proceeding when the interest of justice so requires, the Supreme Court may refer the case for investigation to the Office of the Bar Confidant, or to any officer of the Supreme Court or judge of a UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTES

130

The Court may still resolve the case on its merit in order to clear publicly the name of the lawyer

. C:ONFIDENTIALITYOF DISBARMENT . • . . ' ' PROCEEDINGS. · ·.

.

Three-fold purpose of confidentiality disbarment proceedings

of

.

j j

SUSPENSION,

DISBARMENT

AND DISCIPLINE

OF LAWYERS

To enable the court to make its investigation free from extraneous influence or interference; 2. To protect the personal and professional reputation of attorneys from baseless charges of disgruntled, vindictive and irresponsible persons or clients by prohibiting publication of such charges pending their final resolution (Albano v. Coloma, A.C. No. 528, October 11, 1967); 3. To deter the press from publishing charges or proceedings based thereon for even a verbatim reproduction of the complaint against an attorney in the newspaper may be actionable.

~ considered a matter of public interest and that the personalities involved, including Atty. Fortun, are considered as public figure. Thus, media has the right to report the filing of the disbarment case as legitimate news. It would have been different if the disbarment case against petitioner was about a private matter as the media would then be bound to respect the confidentiality provision of disbarment proceedings under Section 18, Rule 139-B of the Rules of Court (Fortun v. Quinsayas, G.R. No. 194578, February 13, 2q13J.

NOTEiThe confidentiality of the proceedings is a privilege which may be waived by the lawyer in whom and for the protection of whose personal and professional reputation it is vested, as by presenting the testimony in a disbarment case or using it as impeaching evidence in a civil suit (Villalon v. !AC, G.R. No; L-73751, September 24, 1986)

[udgment of suspension of a Filipino lawyer in a foreign court

1.

..

•

•

· DJSCIPLINF,: OF FlLIPINO LAWVERS . . PRACTICINGABROAD · . . . . ·

The judgment of suspension against a Filipino lawyer in a foreign jurisdiction does not automatically result in his suspension or disbarment in the Philippines as the acts giving rise to his suspension are not grounds for disbarment and suspension in this jurisdiction. Judgment of suspension against a Filipino lawyer may transmute into a similar judgment of suspension in the Philippines only if the basis of the foreign court's action includes any of the grounds for disbarment or suspension in this jurisdiction (Velez v. De Vera, A.C. No. 6697, July 25, 2006).

Q: Atty. Fortun is the counsel for Ampatuan,

Ir., the principal accused in the murder cases in the Maguindanao Massacare. Atty. Quinsayas, et al. filed a disbarment complaint against Atty. Fortun on the ground that he used and abused the different legal remedies available and allowed under the rules; and muddled the issues and diverted the attention away from the main subject matter of the cases. Atty. Fortun alleged that Atty. Quinsayas, et al. actively disseminated the details to the media of the disbarment complaint against him in violation of Rule 139-B of the Rules of Court on the confidential nature of disbarment proceedings Is A.tty. Fortun correct?

0

NOTE: The judgment, resolution or order of the foreign court or disciplinary agency shall be prima facie evidence of the ground for disbarment or suspension (Supreme Court Resolution, February 13, 1992 amending Sec. 27, Rule 138, RRCJ. Atty. Forma is a member of the Philippine Bar. He went to New York City, took the New York State Bar, and passed the. same. He then practiced in New York City. One of his American clients filed a case for disbarment against him for pocketing the money which was entrusted to him as payment for the filing fee and other incidental expenses of his damage suit. Atty Forma came back to' the Philippines and practiced as a lawyer. Q:

A: NO. As a general rule, disbarment proceedings are confidential in nature until their final resolution and the final decision of this Court. In this case, however, the filing of a disbarment complaint against Atty. Fortun is a matter of public concern considering that it arose from the Maguindanao Massacre case. The interest of the public is not on Atty. Fortun but primarily on his involvement and participation as defense counsel in the Maguindanao Massacre case.

Will his disbarment i\t New York be used against him for purposes of disbarment proceedings here in the Philippines? (2014 Bar)

The Maguindanao Massacre is a very high· profile case. It is understandable that any matter related to the Maguindanao Massacre is

A: Atty. Forrna may be disbarred in the

131

UNIVERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW

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LEGAL ETHICS Philippines if the ground for his disbarment in New York is also a ground for disbarment in this country, But he is still entitled to due process of law, and the foreign court's judgment against him only constitutes prima facie evidence of unethical conduct as a lawyer. He is entitled to be given an opportunity to defend himself in an investigation to be conducted in accordance with Rule 139 of the Revised Rules of Court (In Re: Suspension from the Practice of Law in the Territory of Guam of Atty. Leon Maquera, B.M. 793, July 30, 2004; Velez v. De Vera, A.C. No. 6697, Jqly 25, 2006).

•

•

•!

,;

'.l ,I

j ,j :::!

{'.-.)

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UNIVERSITY OF SANTO TOMAS GOLDEN NOTES

2019

132

SUSPENSION,

DISBARMENT

AND DISCIPLINE

•

OF LAWYERS

: . .. . . ' : · PROCEDURE·FOR DISBARMENT OR DrSCIPLINE OF ATTONEYS BY THE · .: · · SUPREME COURT MOTU PROPRIO (Ruic 139-B, RRC, 'as amended by B.M. no. 1 MS)

Supreme Court shall refer the case to an investigator, who 'may either be: 1. Office of the Bar Confidant 2. Any officer of the SC, or 3. Any judge of a lower court

• •

N otifv Respondent

RESPONDENT'S VERIFIED ANSWER (Must be filed within 15 days from service)

.: . · . . '· , .

. ·

. · .. . ·

· JNVESTIGATION·. ·· ' .. TERMINATE WITHIN 3 MONTHS

·.

· .

REPORT TO SUPREMij COURT (io be submitted not latet 30 days from investigation's termination)

· .

. ·

· ·

. ·· .

th~tt

REPORT MUST 'CONTAIN THE INVESTIGATOR'S: 1. Findings of fact 2. Recommendations

133

UNIVERSITY OF SANTO TOMAS¢) • FACULTY OF crvu, LAW ...

•

LEGAL ETHICS · · .'PROCEDURE FOR DISBARMENT OR DISCIPLINE OF ATTORNEYS BY THE IBP Rule't39·B, RRC. IBP Motu Proprlo (Committee on Bar ._ Discipline through National Grievance Investigator)

._. VERIFIED COMPLAINT TO THE IBP BY ANY PERSON ' Complaint must be: 1. In writing; 2. State facts complained of; and 3. Supported by affidavits I documents

Shall appoint an investigator/ panel of 3 investigators and notify respondent

MERITORIOUS: NOT Recommend the dismissal of the complaint to the Board of

Q

IF

MERITORIOUS, RESPONDENT TO

!LE VERIFIED AN.SWER Must be filed within 15 days from ervice)

Governn'rs ,_

__

[

_

INVESTIGATION (terminate within 3 months)

DISMISSAL BY BOARD OF GOVERNORS (should be promulgated within a period not exceeding 30 days from the next meeting of the board following the submittal of the investigator's report)

1. Investigator may administer oaths, 2. Provide respondent heard, 3. May proceed with should respondent fail

issue subpoenas

and

with opportunity to be investigation to appear.

ex parte

·-T .-------·i•---------------------2------

•

REPORT TO BOARD OF GOVERNORS (Submitted not later than 30 days from termination of investigation) containing: (a} Findings of facts; and (b)Recommendations

•• The Board of Governors shall recommend to the Supreme Court either: (a) the dismissal of the complaint; or (b) the imposition of disciplinary action against the respondent. NOTE: The resolution shall be issued within a period not exceeding thirty (30) days from the next meeting of the Board following the ~ubmissi.on of the investigator's report .

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SUSPENSION,

0ISBARMEN1"

AND DISCIPLINE OF LAWYERS service. However, Judge Amor filed a COC for the 2002 Barangay Elections, which deemed him automatically resigned from the judiciary. Can he still be administratively liable?

f:FFECT OF DESISTANCE OR WITHDRAWAL OF ... COMPLAINT OR NON·APPEARANCE lN · ... . . . DISBARMENT.·PROCEEDINGS · . · ·, The desistance or the withdrawal of the complainant of the charges against a judge/lawyer does not deprive the court of the authority to proceed to determine the matter. Nor does it necessarily result in the dismissal of the complaint except when, as a consequence of the withdrawal or desistance no evidence is adduced to prove the charges{Presado v. judge Genova, A.M. No. RTJ·91·657,June 21, 1993).

A: YES, Judge Amor's automatic resignation due to his filing of a COC for the 2002 Barangay Elections did not divest the Court of its jurisdiction in determining his administrative liability. Resignation should not be used either as· an escape or an easy way out to evade an administrative liability or administrative sanction {OCA v. Judge Amor, A.M. No. RTf ·08·2140, October 7, 2014, PERLAS-BERNABE).

The affidavit of withdrawal of the disbarment case executed by a complainant does not, in any way, exonerate the respondent-lawyer. A case of suspension or disbarment may proceed regardless of interest or lack of interest of the complainant. The complainant in a disbarment case is not a direct party to the case, but a witness who brought the matter to the attention of the Court (Quiachon v. Atty. Ramos, A.C. No. 9317, June 4, 2014).

•

. ·. · DO~TRINE OF RES lPSA.LQQUITUR . · . ·· '. ·:.,:\PPLICABLETOJUDGES. AND LAWYERS: · .. The doctrine of res ipsa loquitur is applicable in cases of dismissal of judges or disbarment of lawyers (1996, 2003 Bar). This principle or doctrine applies 'to both judges and lawyers. Judges had been dismissed from the service without need of a formal investigation

because based on the records, the gross misconduct or inefficiettcy of Judges clearly appears (Uy v. Mercado, A.M. No. R-368-MTJ, September 30, 1987). The same principle applies to lawyers. Thus, where on the basis of the lawyer's comment or answer to show a show-cause order of Supreme Court, it appears that the lawyer has so conducted himself in a manner which exhibits his blatant disrespect to the court, or his want of good moral character or his violation of the attorney's oath, the lawyer may be suspended or disbarred without need of trial-type proceeding. Wha.t counts is that the lawyer has been given the opportunity to air his side (Prudential Bank v. Castro, A.M. No. 2756, June 5, 1986).

.

:.

EFFECT OF RESIGNATION.

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Q: Judge

Contreras was administratively charged with Gross Misconduct, Insubordination and acts inimical to judicial

U NJV:ERSITY

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OF SANTO TOMAS¢ FACULTY OF CIVIL LAW

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LEGAL ETHICS,: The following guidelines were issued by the Supreme Court, the same to be observed in the matter of the lifting of an order suspending a lawyer from the practice of law:

READMISSION TO THE BAR

Reinstatement and its requirements

'1

1. After a flnding., that respondent lawyer In disbarment proceedings, reinstatement means the restoration to a disbarred lawyer, the privilege to practice law (Pineda, 2009).

2.

Whether the applicant shall be reinstated in the Roll of Attorneys rests to a great extent on the sound discretion of the Court. The applicant must, like a candidate for admission to the bar, satisfy the Court that he is a person of good moral character, a fit and proper person to practice law {Narag vs. Narag, A.C. No. 3405, March 18, 2014).

executory: 3.

Upon the expiration of the period of suspension, respondent shall file a Sworn Statement with the Court, through the Office of the Bar Confidant, stating therein that he or she has desisted from the practice of law and has not appeared in any court during the period of his or her suspension; 4. Copies of the Sworn Statement shall be furnished to the Local Chapter of the IBP and to the Executive Judge of the courts where respondent has pending cases handled by him or her, and/or where he or she has appeared as counsel; 5. The Sworn Statement shall be considered as proof of respondent's compliance with the order of suspension; 6. Any finding or report contrary to the statements made by the lawyer under oath shall be a ground for the imposition of a rnore severe punishment, or disbarment, as may be warranted (Maniago v. De Dios, A.C. No. 7472, March 30, 2010).

NOTE: The power of the Supreme Court tu reinstate is based on its constitutional prerogative to promulgate rules on the admission of applicants to the practice 'of Jaw {Sec. 5(5], Art VIII, 1987 Constitution). : LAWYERS WHO HAVE BEEN.SUSPENDED.

Lifting of suspension is not automatic upon the end of the period stated in the Court's decision The lifting of a lawyer's suspension is not automatic upon the end of the period stated in the Court's decision, and an order from the Court lifting the suspension at the end of the period· is necessary in order to enable [him] to resume the practice of his profession

U,K. Mercado and Sons Agricultural Enterprises, Inc. et al. v. Att;y. de Vera, et al. and Att;y. de Vera v. Atty. Encanto, et al.).

Q: Raul Gonzales was found guilty of both contempt of court in facie curiae and gross

Thus, according to the OBC, a suspended lawyer must first present proof(s) of his compliance by submitting certifications from the Integrated Bar of the Philippines and from the Executive Judge that he has indeed desisted from the practice of law during the period of suspension. Thereafter, the Court, after evaluation, and upon a favorable recommendation from the OBC, will issue a resolution lifting the order of suspension and thus allow him to resume the practice of law (Maniago v. Atty. De Dias, A.C. No. 7472, March 30,2010).

misconduct as an officer of court and member of the bar. For this, he was suspended indefinitely. After more than 4 years from his suspension, Gonzales filed an ex-partemotion to lift his ~spenslon from the practice of law; alleging that he gave free legal aid services by paying lawyers to do the same as he could not personally represent said clients; pursued civic work for the poor; brought honor to the country by delivering a paper in Switzerland; that he has a long record in the service of human rights and the rule of law; his suspension of 51 months has been the longest so far; states his profound regrets for the inconvenience which he has caused to the

Guidelines to be observed In lifting an order of suspension of a lawyer front the practice of law ,.-\

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UNIVERSITY OF SANTO GOLDEN NOTES

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must be suspended from the practice of law, the Court .shall render a decision imposing the penalty; Unless the Court explicitly states that the decision is immediately executory upon receipt thereof, respondent has 15 days within which to file a motion for reconsideration thereof. The denial of said motion shall render the decision final and

TOMAS

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READMISSION TO THE BAR Court: sincerely reiterates his respect to the institution as he reiterates his oath to conduct himself as a lawyer. May his suspension be lifted? A: YES. Gonzales' contrition, so noticeably absent in his earlier pleadings, has washed clean the offense of his disrespect His remorse has soften his arrogance and made up for hi~ misconduct. Gonzales' suspension has given him ample time and opportunity to amend his erring ways, rehabilitate himself, and thus, prove himself worthy once again to enjoy the privileges of membership of the Bar. His motion was granted (Zaldivar v. Gonzales, G.R.

years, which was effective immediately. Atty. Basilio admitted that he served his suspension from the practice oflaw only on July 9, 2016 (date of receipt of an order denying his motion for reconsideration), proffering that he believed that what was immediately executory was only the revocation of his notarial commission and .the two (2)-year prohibition against being • commissioned as a notary public. ls his contention correct?

•

A: NO.The clause "effective immediately" was placed at the end of the enumerated series of penalties to indicate that the same pertained to and therefore, qualified all three (3) penalties, which clearly include his suspension from the practice of law. The immediate effeclivity of the · order of suspension - not just of the revocation and prohibition against his notarial practice • logically proceeds from the fact that all three (3) penalties Were imposed on Atty. Basilio Thus, with the Decision's explicit wording that the same was "effective immediately", there is no denying that Basilio's compliance therewith should have commenced immediately from his receipt of the Decision on December 2, 2015 (Att;y. Bartolome v. Atty. Basilio, A.C. No. 10783, January 31, 2018,

Nos. 79690- 707, April 7, 1993).

Q: Atty. Paras was suspended from the practice. of law. The suspension period became effective on May 23, 2001 and lasted for one (1) year, or until May 22, 2002. Therafter, Atty. Paras filed a motion for the lifting of his suspension. However, soon after this filing and without waiting for a Court order approving the same, Atty. Paras admitted to accepting new clients and cases, and even working on an amicable settlement for his client with the DAR. Is he administratively liable?

PERLAS-BERNABE).

A: YES. The practice of Jaw embraces any activity, in or out of court, which requires the application of law, as well as legal principles, practice or procedure, and calls for legal knowledge, training, and experience. During the suspension period and before the suspension is lifted, a lawyer must desist from practicing law. It must be stressed, however, that a lawyer's suspension is not automatically lifted upon the lapse of the suspension period. The lawyer must submit the required documents and wait for an order from the Court lifting the suspension before he or she resumes the practice of Jaw. Atty. Paras engaged in the practice of law without waiting for the Court order lifting the suspension order against him, and thus, he must be held administratively liable therefor (Paras v. Paras, A.C. No. 5333, BERNABE).

March

13,

2017,

LAWYERS WHO HAVE BEEN DISBARRED Effect of reinstatement: Wipes out the restrictions and disabilities resulting from a previous disbarment (Cui v. Cui, G.R. No. L187271 August 31, 1964).

Prior to actual reinstatement, the lawyer will be required to take anew the lawyer's oath and sign once again the roll of attorneys after paying the requisite fees (Funa, 2009). Judicial clemency Judicial clemency is an act of mercy removing any disqualification from the erring judge. It can be granted only if there is a showing that it is merited; thus, proof of reformation and a showing of potential and promise are indispensable (Concerned Lawyers of Bulacan v.

PERLAS-

Judge Vi/Jalon-Pornillos, A.M. No. RTJ-09-2183, · February 1'4, 2017).

Q: On December 2,. 201.5, Atty. Basilio received the Decision dated October 15, 2015 that suspends him from the practice of Jaw for one (1) year, revokes his incumbent commission as a notary public, and prohibits him from being commissioned as a notary public for two.(2)

Requirements for judicial clemency for disbarred lawyers and judges (TRAPO) 1. SufficientTime mus,t;have elapsed from the

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UNIVERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW

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LEGAL ETHICS

2. 3.

4.

5.

imposition of the penalty to ensure a period of reform. There must be proof of Remorse and reformation. The Age of the person asking for clemency must show that he still has productive years ahead of him that can be put to good use by giving him a chance to redeem himself. There must be a showing of Promise (such as intellectual aptitude, learning or legal acumen or contribution to the legal scholarship and the development of the legal system), as well as a potential for public service. There must be Other relevant factors and circumstances that may justify clemency(Re: Letter of Judge Augustus C.

Q: Atty. Edmundo Macarubbo was disbarred

from the practice of law for having contracted a bigamous marriage with Florence Teves and a third marriage with one Josephine Constantino while his first marriage to Helen Esparza was still subsisting, which constituted gross immoral conduct. He has asked forgiveness from his children by Teves and maintained a cordial relationship with them. He also returned to his hometown In Enrlle, Cagayan and devoted his time tending an orchard and taking care of his ailing mother until her death. Eight (8) years after such disbarment he now seeks judicial clemency. The IBP, his children, multiple affidavits and by the complainants in the original suit supported him. Is he entitled to such?

Diaz, .MTC·QC, Br. 37, Appealing for Judicial Clemency, A.M. No. 07-7-17-SC,September 19,2007)

A: YES. He has shown remorse and has changed bis ways from such disbarment. Eight (8) years has passed. His plea is supported by the IBP, his children, multiple affidavits and even by the complainants in the original suit against him. He is entitled to judicial clemency

Q: Atty. Narag was disbarred on the ground of gross immorality for having amorous relationship with Gina and abandoning-his wife and children to live with his paramour. Fifteen years had passed since his disbarment and he is now pleading to be reinstated to the bar. He claimed that he was extremely remorseful and that his wife and children had already forgiven him. As a proof thereof, he presented an affidavit of his son, Dominador, Jr. attesting to the truth of his claim. Should Atty. Dominador be reinstated?

(Macarubbo v. Macarubbo, A.C. No. ~ January 22, 2013, PERLAS-BERNABE).

Q: Judge Arceo was dismissed from service in 2004 for lewd and lustful acts against Talens-Dabon, a court stenographer. He was also convicted of sexual harassment and Art. 336 of the RPC, but he was granted probation and finally discharged after having complied with all the conditions thereof. 16 years after his dismissal he now petitions the Court for Judicial Clemency. He is already 7l years old. He submits to the Court more the 10 affidavits of his character and positive recommendations • by the IBP. Is- Judge Arceo entitled to judicial clemency?

A: NO, he should not be reinstated. The Court, in deciding whether the respondent should indeed be readmitted to the practice of law, must be convinced that he had Indeed been reformed; that he had already rid himself ol" any grossly immoral act which would make him inept for the practice of law. However, it appears that the respondent, while still legally married to Julieta, is still living with his paramour • the woman for whose sake he abandoned his family. Moreover, it is noted that only his son, Dominador, [r., signed the affidavit which was supposed to evidence the forgiveness bestowed upon the respondent. Thus, with regard to Julieta and the six other children of the respondent, the claim that they had likewise forgiven the respondent · is hearsay (Narag v. Atty. Naraq, A.C. No. 3405, MarlB,2014). ·

A: YES, he is entitled to judicial clemency. Judge Arceo has sufficiently shown his remorse and reformation after his dismissal from the service meriting the Court's liberality. While it may be conceded that Judge Arceo at 71 years old had already reached retirement age and can no longer be eligible for regular employment in the public service, yet, considering his achievements and mental aptitude, it cannot be doubted that he could still be of service to the government in some other capacity. While Judge Arceo was convicted by the Sandiganbayan for violation of the Anti-Sexual Harassment Law and Article 336 of the Revised Penal Code, he was granted

Examples of judges and lawyers GRANTED judicial clemency:

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UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTES

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probation and finally discharged after having complied with all the conditions thereof. Concomitantly, all his civil rights which he had lost as a result of his conviction, including the right to be employed in the public service, were restored [Talens-Dabon v. Judge Arceo, A.M. No. RTJ-96-1336, November 20, 2012, PERLAS-BERNABE). .

place of work near her residence (Re: Petition for Judicial Clemency of Judge Masarnayor, A.M No. 12·2·6-SC, March 12, 2012, PERLAS· BERNABE). . 1.

Q: Judge Masamayor has been in the service of the judiciary for the past 23 years. In 1999 and 2000, Judge Masamayor was held administratively liable for gross inefficiency in belatedly flllng her motions for extension of time to resolve the cases, which she resolved within the extended period. She was made to pay fines. OCA's Memorandum acknowledged her prompt compliance with the judicial audit requirements of pending cases. After the lapse of 10 years, Judge Masamayor did not have any other administrative complaints. She filed applied for lateral transfer to the RTCs of Tagbilaran City, which was near her home. She was notified by the JBC that she was not included in the list of nominees for the position of RTC judge, because her past record disqualified her from such nomination. Judge Masamayor prays for Judicial clemency. She views her past actions with remorse. Such clemency was supported and endorsed by his IBP chapter. Should Judge Masamayor's prayer for judicial clemency be granted?

2.

3.

4.

S.

6.

.

REINSTATEMENT.·

.. ·

·

The applicant's L character and standing prior to the disbarment; The nature and character of the charge for which he was disbarred: His conduct subsequent to the disbarment, and the time that has elapsed between the disbarment and the application for reinstatement (Prudential Bank v. Benjamin Grecia, A.C. No. 2756, December 18, 1990); His efficient government service (In re: Adriatico, C.R. No. L-2532, November 17, 1910); Applicant's appreciation of the significance of his dereliction and his assurance that he now possesses the requisite probity and integrity; and Favorable endorsement of the IBP and pleas of his loved ones (Yap Tan v. Sobandal, B.M. No.144, February 24, 1989).

NOTE: Whether or not the applicant shall be

reinstated rests on the discretion of the court (Prudential Bank v. Benjamin Grecia, A.C. No. 2756, December 18, 1990). The court may require applicant for reinstatement to enroll in and pass the required fourth year review classes in a recognized law school (Cui v. Cui, In Re: Resian, A.C. No. 270, March 20, 1974).

!

A: YES, Judge Masamayor's prayer for judicial clemency should be granted. Judge Masamayor has exhibited remorse for her past misdeeds, which occurred more than 10 years ago. While she was found to have belatedly filed her motions for additional time to resolve the aforecited cases, she had disposed of the same within the extended period sought, Nevertheless, Judge Masamayor has subsequently shown diligence in the performance of her duties and has not committed any similar act or omission. In the Memorandum of the OCA, her prompt compliance with the judicial audit requirements of pending cases . was acknowledged and she was even commended for her good performance in the effective management of her court and in the handling of court records. Judge Masamayor's dedicated service of 23 years to the judiciary merits compassion from the Court It bears to note that petitioner does not seek for promotion to a higher position but only a lateral transfer to a

•

· SUfREME COURT'S GUIDELINES IN

EFFECTOF EXECUTIVEPARDON GRANTED . . · . BV1HE PRESIDENT . · · ,

If during the pendency of disbarment proceeding the respondent was granted executive pardon, the 'dismissal of the case on that sole basis will depend on whether the executive pardon is absolute or conditional. ~ ,:

1'

1. Absolute

or uncotiditional pardon · the disbarment case will be dismissed. 2. Conditional pardon> the disbarment case will not be dismissed on the basis thereof. NOTE: To be reinstated, there is still a need for the filing of an appropriate petition with the Supreme Court {In re: Rovero, A.M. No. 126, , December 29, 1980).

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UNIVERSITY OF SANTO TO MAS~ FACULTY OF CIVIL LAW ·y

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LEGAL ETHICS Q: X filed proceedings for disbarment against his lawyer, Atty. C, following the latter's conviction for estafafor

would not commit another offense during the unserved portion of his prison sentence. Soon after X's release from custody after

mlsapproprtattn1 funds belonglnR to his client (X). Whlle the proceedings

being pardoned, the offended party In the

fol"

disbarment was pending, the President granted absolute pardon In favor of Atty. C. Atty, C, then, moved for the dismissal of the disbarment case. Should the motion be granted?

criminal case flied a Complaint for Disbarment against X in the Supreme Court. X set up the defense that having been pardoned thus he may not be disbarred from the practice of law anymore. Is X's contention tenable? (1999 Bar)

A: An absolute pardon by the President is one

A: X's contention is not tenable.

He was granted only a conditional pardon. Such conditional pardon merely relieved him of the penal consequences of his act but did not operate as a bar to his disbarment. Such pardon does not reach the offense itself. Hence, it does not constitute a bar to his disbarment

that operates to wipe out the conviction and the offense itself. The grant thereof to a lawyer is a bar to a proceeding for disbarment against him, if such proceeding is based solely on the fact of such conviction (In re: Parcasio, A.C. No. 100, February, 18, 1976).

(In Re Gutierrez, A.C. No. L-363,July 31, 1962; In re Avancena, A.C. No. 407, August 15, 1967).

But where the proceeding to disbar is founded on the professional misconduct involved in the transaction which culminated in his conviction, the effect of the pardon is only to relieve him of the penal consequences of his act and does not operate as a bar to the disbarment proceeding, inasmuch as the criminal acts may nevertheless constitute proof that the attorney does not possess good moral character (In re: Lontok, 43 Phil. 293, April 7, 1922).

Furthermore, the acts of X leading to his conviction may be used to show that he docs not possess the necessary requirement of good moral character for. continued membership in the Bar (In re Yalloces, A.C. No. 439, September 30, 1982). i: . LAWYERS WHO HA E BEEN REPATRTATED Q: Dacanay practiced law until he migrated to Canada to seek medical attention for his ailments. He subsequently applied for Canadian citizenship to avail of Canada's (ree medical aid program. His application was approved and he became a Canadian citizen. Dacanay later on reacqui.red his Philippine citizenship by virtue of R.A. 9225. Did Dacanay lose his membership·fn the Philippine bar when he gave up his Philippine citizenship? Can he automatically practice law upon reacquiring Filipino citizenship?

In the light of recent court pronouncements that a lawyer may be disciplined even for non-professional misconduct, one may argue that a lawyer convicted of a crime involving moral turpitude, and subsequently receives absolute pardon, may still be proceeded against under the Code of Professional Responsibility even if the acts of which he was found guilty did not involve professional misconduct (A modification of In Re Lontok, supra). The ground for the petition for disciplinary action under the Code must, however, not be founded alone on the conviction but must be based on the acts committed by the lawyer which rendered him morally unfit to be a member of the bar (Aguirre, 2006). NOTE:

A: The Constitution provides that the practice of all professions in the Philippines shall be limited to Filipino citizens save in cases prescribed by law. Since Filipino citizenship is a requirement for admission to the bar, loss thereof terminates membership in the Philippine bar and, consequently, the privilege to engage in the practice of law. In other words, the loss of Filipino citizenship ipso Jure terminates the privilege to practice law in the Philippines. The practice of law is a privilege denied to foreigners (Petition for Leave to

Q: X, a member of the Bar, was charged with

and found guilty of estafa, for which he was sentenced to suffer Imprisonment and to indemnify the offended party for the amount Involved. Not having taken an appeal from the judgment of conviction, upon finality thereof he was taken into custody to serve sentence. A month after he was incarcerated, he was granted pardon by the Chief Executive on condition that he

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Resume Practice of Law, Dacanay, B.M. No. 1678, December 17, 2007).

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READMISSION

Before a lawyer who reacquires Filipino citizenship pursuant to R.A. 9225 can resume his law practice, he must first secure from the Supreme Court the authority to do so, conditioned on:

3.

practice.

(2013

A: Atty. Repatriar must prepare a sworn . petition to re-acquire the privilege to practice law in the Philippines. He should manifest in his petition his desire to resume his law practice in the Philippines, and he is not disqualified to practice law. The "right to resume the practice of law" is not automatic. R.A. No. 9225 provides that a person who intends to practice his profession in the Philippines must apply with the proper authority for a license or permit to engage in such practice. It cannot be overstressed that the practice of law is a privilege burdened with conditions. It is so delicately affected with public interest that it is both the power and duty of the state (through the Supreme Court) to control and regulate it in order to protect and promote the public welfare.

accrues(Petition for Leave to Resume Practice of Law, Dacanay, B.M. No. 1678, December 17, 2007).

2.

..

to resume his Philippine Bar)

The exception is when Filipino citizenship is lost by reason of naturalization as a citizen of another country but subsequently reacquired pursuant to R.A. 9225. This is because "all Philippine citizens who become citizens 9f another country shall be deemed not to have lost their Philippine citizenship under the conditions of R.A. 9225." Therefore, a Filipino lawyer who becomes a citizen of another country is deemed never to have lost his Philippine citizenship if he reacquires it in accordance with R.A. 9225. Although he is also deemed never to have terminated his membership in the Philippine bar, no automatic right to resume law practice

1.

TO THE BAR

•

Adherence to rigid standards of mental fitness, maintenance of the highest degree of morality, faithful observance of the legal profession, compliance with the mandatory continuing legal education requirement, and payment of membership fees to the Integrated Bar of the Philippines {IBP) are the conditions required for membership in good standing in the bar and for enjoying the privilege to practice law. Any breach by a lawyer of any of these conditions makes him unworthy of the trust and confidence which the courts and clients

The updating and payment in full of the annual membership dues in the 1aP; The payment of professional tax; The completion of at least 36 credit hours of 'mandatory continuing legal education, this is especially significant to refresh the applicant/petitioner's knowledge of Philippine laws and update him of legal developments; and

repose in him for the continued exercise of h!s professional privilege (In re: petition to re·

4. The retaking of the lawyer's oath which will not only remind him of hls duties and responsibilities as a lawyer and as an officer of the Court, but also renew his pledge to maintain allegiance to the Republic of the Philippines (Petition for

acquire the privilege to practice law in the Philippines, Epifanio B.'Muneses, B.M. No. 2112, July 24, 2011). ,., ··;

He should file the petition with the Supreme Court, through the Bar Gonfidant, accompanied by the original or c~rtified copies of the following documents:

leave to Resume Practice of Law, Dacanay, B.M. No.1678, December 17, 2007). Q: Atty. Repatriar, a law school classmate, approached you on your 25th Class Reunion, with questions on how he can resume the practice of law in the Philippines. He left the country in 1977 after two (2) years of initial law practice, and migrated to the United States where he was admitted to the practice of law in the State of New York. He asks that you give him a formal legal opinion on his query.

1.

Outline briefly the steps and the supporting legal reasons you would state in your legal opinion on what Atty. Repatriar should do

141

Showing that he is still a Filipino citizen. "The Court reiterates that Filipino citizenship is a requirement for admission to the bar and is, in fact, a continuing requirement for the practice of law." [lbid.] Having retained Philippine citizenship could be evidenced by the Philippine passport, the U.S. Green Card showing Philippine citizenship and U.S. residency, or other authentic documents which the Supreme Court may require.

U N'IVERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW

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LEGAL ETHICS On the other hand, if Atty. Repatriar has lost his Philippine citizenship, he must subtnit the following: , (a) Petition for Re-Acquisition of Philippine Citizenship; {b) Order (for Re-Acquisition of Philippine Citizenship); (c) Oath of Allegiance to the Republic of the Philippines; (d) Identification Certificate (IC) issued by the Bureau of Immigration. I

The loss of Filipino citizenship means termination of Atty. Repatriar's membership in the bar; ipso jure the privilege to engage in the practice of Jaw. "Under R.A. No. 9225, natural-borncittzens who have lost their Philippinecitizenship by reason of their naturalization as citizens of a foreign country are deemed to have reacquired their Philippine citizenship upon taking the oath of allegiance to the ' Republic.Thus, a Filipino lawyer who becomes a citizen of another country and later re-acquires his Philippine citizenship under R.A. No. 9225 remains to be a member of the Philippine bar." {Ibid.) 2. 3. 4. 5. 6.

•

Certification from the IBP indicating updated payments of annual membership dues; Proof of payment of professional tax; and Certificate of compliance issued by the MCLE Office (Ibid.) A certificate of good moral character attested to by at least three (3) members of the bar; and A certification from the State Bar of New York that Atty. Repatriar does not have auy previous or pending disciplinary action filed against him before that body.

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MANDATORY CONTINUING LEGAL EDUCATION MCLE for a newly admitted member of the

bar

MANDATORY CONTINUING LEGAL EDUCATION (MCLE)

Starts on the first day of the month of his admission (Svc. 3, Rule 31 MCLE).

(B.M, No. 850, August 22, 2000}

MCLE Compliance shall be indicated in all

Purpose ofMCLE

pleadings

MCLE ensures that members of the IBP. are kept abreast with law and jurisprudence throughout their career, maintain the ethics of the profession and enhance the standards of the practice oflaw(Sec. 1, Rule 1, MCLE).

B.M. No. 1922requires practicing members of the bar to' indicate in all pleadings filed before the courts or quasi-judicial bodies, the number • and date of issue of their MCLE Certificate of Compliance or Certificate of Exemption, as may be applicable, for the immediately preceding compliance period. Failure to disclose the required information would cause the dismissal of the case and the expunction of the pleadings from the records (B.M. No.1922,June

Committee on Mandatory Continuing Legal Education 1.

Composition: a. b. c.

3, 2008).

Retired justice of the Supreme Court- to act as Chairman, who is nominated by the Supreme Court IBP National President - acts as the Vice-Chairman 3 other members - nominated by the Philippine Judicial Academy, UP Law Center and Association of Law Professors, respectively

Classes of credits 1. Participatory credit - Attending approved education activities like seminars, conventions, symposia, and the like; speaking or lecturing, or assigned as panelist, reactor, or commentator, etc. in approved education activities; teaching in law school or lecturing 'in bar review classes. 2. Non-participatory - Preparing, as author or co-author, written materials (article, book or book review) which contribute to the legal education of the author member, which were not prepared in the ordinary course of his practice or employment; editing a law book, law journal or legal newsletter.

2.

Members are of proven prohity and integrity 3. Compensation as may be determined by the Supreme Court 4. The initial terms of each of the 3 members shall be 5, 4, and 3 years respectively · ·. . .

. REQUIREMENTS · . .

•

.

..

Requirements of completion of MCLE

.

Members of the IBP, unless exempted under Rule 7, shall complete every 3 years at least 36 hours of continuing legal education activities. The 36 hours shall be divided as follows:

· NON-COMPLIANCE OF THE MCLE

Acts constituting non-compliance of the MCLE are the following: 1.

Failure to complete education requirement within the compliance period; 2. Failure to provide attestation of compliance or exemption; 3. Failure to provide satisfactory evidence of compliance (including evidence of exempt status) within the prescribed period; 4. Failure to satisfy the education requirement and furnish evidence of such compliance within 60 days from receipt of non-compliance notice; 5. Failure to pay non-compliance fee within the prescribed period; or

1. 6 hours - legal ethics 2. 4 hours - trial and pretrial skills 3. 5 hours - alternative dispute resolution 4. 9 hours - updates on substantive and procedural laws and jurisprudence 5. 4 hours - legal writing and oral advocacy 6. 2 hours international law .and international conventions 7. Remaining 6 hours - such other subjects as may be prescribed by the Committee on MCLE

143

UNIVERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW

•

LEGAL ETHICS Any other act or omission analogous to any of the foregoing or intended to circumvent or evade compliance with the MCLE requirements (Sec. l, Rule 12, MCLE).

6.

Resolution of the Court En Banc, July 13, 2004); 4.

NOTE: Members failing to comply will receive a Non-Compliance Notice stating the specific deficiency and will be given 60 days from date of notification to file a response (Sec. 2, Rufe 12,

5. 6.

MCLE). 7. Credit units earned during the 60-day period may only be counted toward compliance with the prior period requirement, unless units in excess of the requirement are earned in which case the excess may be counted toward meeting the current compliance period requirement (Sec. 2, Rule 12, MCLE; Arnado v. Atty. Adaza, A.C. No. 9834, August 26, 2015) ..

8.

9.

10.

Q: In order to comply with the MCLE requirements, Atty. Ausente enrolled in a seminar given by an MCLE provider. Whenever he has court or other professional commitments, he would· send . his messenger or a member of his legal staff to register his attendance at the MCLE sessions so he could be credited with the required qualifying attendance. He would also ask them to secure the printed handouts and the lecturers' CDs, all of which he studied in his free time. Was the action of Atty. Ausente proper? (2013 Bar)

11.

12.

The Chief State I Counsel, Chief State Prosecutor and Assistant Secretaries of the Dept. of Justice; The Solicitor General and the Assistant Solicitor General; ! The Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel; The Chairman and Members of the Constitutional Commissions; The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsmen and the Special Prosecutor of the Office of the Ombudsman; Heads of government agencies exercising quasi-judicial functions; Incumbent deans, bar reviewers and professors of law who have teaching experience for at least 10 years in accredited law schools; The Chancellor, Vice-Chancellor and members of the Corps of Professional and Professorial Lecturers of the Philippine Judicial Academy; and Governors and Mayors because they are prohibited from practicing their profession(Sec. 1, Rule 7, MCLE).

•

Other parties exempted: 1.

A: NO. Atty. Ausente should be sanctioned because he circumvented or evaded full compliance with the MCLE requirements

·2.

•

Those who are not in law practice, private or public; Those who have retired, from law practice with the approval of the I BP Board of Governors(Sec. 2, Rule 7, MCLE).

(Section l(e)., Rule 12, MCLE). ·

.

.

Request for circumstance

EXEMPTIONS

Persons exempted from the MCLE 1.

2. 3.

\.~,)

UN IVE RS I TY OF SA NT O TO MAS GOLDEN NOTES

2019

under

special

If there is a good cause for exemption from or modification of requirement, member may file a verified request setting forth good cause for exemption (such as physical disability, illness,

The President, Vice-President and the Secretaries and Undersecretaries of Executive Departments; Senators and Members of the House of Representatives; The Chief Justice and Associate Justices of the Supreme Court, incumbent and retired members of the judiciary, incumbent members of Judicial and Bar Council, incumbent members of the MCLE Committee, incumbent court lawyers who have availed of the Philippine Judicial Academy programs of continuing judicial education (Amendment to Bar Matter 850,

Iii)

exemption

post-graduate study abroad, proven expertise in law, ere) from compliance with or modification of any of the requirements, including an extension of time for compliance, in accordance with procedure to be established by the Coramlttee on MCLE(Set:. 3, Rule 7,

MCLE). NOTE: Applications for exemption from or modification of the MCLE requirement shall be under oath and supported by documents.

144

1•·.-:.,. 1 '

.

MANDATORY CONTINUING LEGAL EDUCATION . status (Rule 12 and Rule 13, MCLE).

Q: Atty. Mike started teaching Agrarian Reform and Taxation in June 2001 at the Arts and Sciences Department of the Far Eastern University. In 2005, he moved to San Sebastian Institute of Law where he taught Political Law. ls Atty, Mike exempt from complying with the MCLE for the 4th compliance period in April 2013? (2011

He may still practice the profession but all his pleadings submitted to court may be expunged from the records since it is required that practicing members of the Bar to indicate in all pleadings filed before the courts or quasijudicial bodies, the number and date of issue of their MCLE Certificate of Compliance or Certificate of Exemption, as may be applicable (B.M. No. 1922, June 3, 2008).

Bar)

A: NO, since he has yet to complete the required teaching experience to be exempt. .

. .

..

·SANCTION~

: ·

·

•

. : i>~oPd~fo·R~LE ON ~ANDATORY LEGAL

.

.' MD SERVICE.FOR PkACTICIN~ lAWYERS .. Consequences

of non-compliance '

o

·(B.M. No. 2012, February 1{), 2009) .. . . '

'

,.I

'

'

'

I

· '

1. A member who, for whatever reason, is in

The Mandatory Legal· .Atd Service mandates everv practicing lawyer to render a minimum of 60 hours of free legal'aid services to indigent litigants yearly. f

non-compliance at the end of the compliance period shall pay a noncompliance fee (Sec.1, Rule 13, MCLBJ. 2. A member who fails to comply with the requirements after the 60-day period shall be listed as delinquent member by the IBP Board of Governors upon recommendation of the Committee on MCLE{Sec. 2, Rule 13, MCLE).

Purpose The rule seeks to enhance the duty of lawyers to the society as agents of social change and to the courts as officers thereof by helping improve access to justice by the less privileged members of society and expedite the resolution of cases involving them. Mandatory free legal service by members of the bar and their active support thereof will aid the efficient and effective administration of justice especially in cases involving indigent and pauper litigants (Sec. 2, B.M. No. 2012).

NOTE: The listing as a delinquent member is an administrative in nature but it shall be made with notice and hearing by the Committee on MCLE. Listing as a delinquent suspension

member

is akin to

Listing as a delinquent member of the IBP is akin to suspension because the lawyer shall not be permitted to practice law until such time as he submits proof of full compliance to the IBP Board of Governors, and the IBP Board of Governors has notified the MCLE Committee of his reinstatement (Amado v. Atty. Adaza, A.C.

Scope It shall govern the mandatory requirement for practicing lawyers to render free legal aid services in all cases (whether, civil, criminal or administrative) involving indigent and pauper litigants where the assistance of a lawyer is needed. It shall also govern the duty of other members of the legal profession to support the legal aid program of the Integrated Bar of the Philippines [Sec. 3,8.M. No. 2012).

No. 9834, August 26, 2015).

Q: Can a lawyer who lacks the number of units required by the MCLE Board continue to practice the profession? (2014 Bar) A: YES. A lawyer, not being exempted from MCLE, who fails to comply with the required legal education activities shall receive a Non· Compliance Notice and shall be required to explain the deficiency or otherwise show compliance with the requirements. A member who fails to satisfactory comply therewith shall be listed as a delinquent member by the IBP, wherein he shall be included in the inactive

Practicing lawyers are

members of the Philippine Bar who appear for and in behalf of , parties in courts of law and quasi-judicial agencies.

•

The term "practicing lawyers" shall EXCLUDE: 1.

Government employees and incumbent elective officials not allowed by law to ,. •'

145

UNIVERSITY

OF ~ANTO TO MAS~ OF CIVIL LAW 'Y

FACULTY

•

LEGAL ETHICS 2.

3.

practice; . Lawyers who by law are not allowed to appear in court; Supervising lawyers of students enrolled

services in a case (Sec. S{b},·B.M. No. 2012).

4. Said compliance report shallbe submitted to the Legal Aid Chairperson of the IBP Chapter

in law student practice in duly accredited

legal clinics of law schools and lawyers of (NGOs) and peoples' organizations (POs) like the Free Legal Assistance Group who by the nature of their work already render free legal aid to indigent and pauper litigants: and Lawyers not covered under subparagraphs 1 to 3 including those who are employed in the private sector but do not appear for and in behalf of parties in courts oflaw and quasi-judicial agencies (Sec. 4[a], B:M. No. 2012).

6.

Legal aid cases .

It includes actions, disputes, and controversies that are criminal, civil and administrative in nature in whatever stage wherein indigent and pauper litigants need legal representation (Sec. 4[c], B. M. No. 2012).

2. 3.

4.

3.

Every practicing lawyer is required to render a minimum of 60 hours of free legal aid services to indigent litigants in a year. Said 60 hours shall be spread within the period of 12 months, with .a minimum of 5 hours of free legal aid services each month. However, where it is necessary for the practicing lawyer to render legal aid service for more than 5 hours in one month, the excess hours may be credited to the said lawyer for 'the succeeding periods (Sec. S{a] first par; B.M. No. 2012). The practicing lawyer shall report compliance with the requirement within 10 days of the last month of each quarter of the year (Sec. S[a] third par., B.M. No. 2012). A practicing lawyer shall be required to secure and obtain a certificate from the Clerk of Court attesting to the number of hours spent rendering free legal aid

/--·)

\ •. ~

UNIVERSITY OF SANTO GOLDEN NOTES

2019

TOMAS

jurisdiction

issue a compliance certificate to the concerned lawyer. The IBP Chapter shall also submit compliance reports to the IBP's National Committee on Legal Aid (NCLA) for recording and documentation. The submission shall be made within forty· five ( 45) days after the mandatory submission of compliance reports by the practicing lawyer's (Sec. S[d], B.M. No. 2012). Practicing lawyers shall indicate in all pleadings filed before the courts or quasijudicial bodies the number and date of issue of their certificate of compliance for the immediately preceding compliance period (Sec S[e], B.M. No. 2012).

•

1. The case or cases where the legal aid

Under the Rule, a practicing lawyer, among others, shall coordinate with the Clerk of Court or the Legal Aid Chairperson of one's Integrated Bar of the Philippines (IBP) Chapter for cases where the lawyer may render free legal aid service:

2.

Court's

Contents of a certificate from the Clerk of Court attesting the number of hours spent in rendering free legal services

. : REQUIREMENTS FOR MANDATORY . · . .· . . LEGAL AID SERVICE. . . : . · ..

1.

the

5. The IBP chapter shall, af'ter v~rlflcation,

non-governmental organizations

4.

within

(Sec, S[c], B.M. No. Z012),

service was rendered, the party or parties in the said case(s), the docket number of the said case(s) and the date(s) the service was rendered , The number of hours actually spent The number of hours actually spent · attending mediation, conciliation or any other mode of AD'R on a particular case A motion (except'a motion for extension of time to file a pleading or for postponement of hearing or conference) or pleading filed on a particular case shall be considered as one (1) hour of service (Sec S{b], B.M. No. 2012).

NOTE: The Clerk of Court shall issue the certificate in triplicate, one (1) copy to be retained by the practicing lawyer. one (1) copy to be retained by the Clerk of Court and one (1) copy to be attached to the lawyer's compliance report (Sec S[b}[iv] second par., B.M. No. 2012).

(REOLTS TO LAWYERS WHO RENDER FREE . • LEGAL AID SERVICE . A lawyer who renders mandatory legal aid service for the required number of hours in a year for the three year-period covered by a compliance period under the Rules on MCLE shall be credited the following:

146

•

• MANDATORY CONTINUl~G LEGAL EDUCATION 1. Two (2) credit units for legal ethics Two (2) credit units for trial and pretrial skills 3. Two (2) credit units for alternative dispute resolution 4. Four (4) credit units for legal writing and oral advocacy 5. Four ( 4) credit units for substantive and procedural laws and jurisprudence 6. Six (6) credit units for such subjects as may be prescribed by the MCLE Committee under Section 2(g), Rule 2 of the Rules on MCLE

4.

The notice to the lawyer shall include a directive to pay P4,000.00 penalty which shall accrue to the special fund for the legal aid program of the IBP. 5. The "not in good standing" declaration shall be effective for a period of 3 months from the receipt of the erring lawyer of the notice from the IBP Board of Governors, 6. During the said period, the lawyer cannot appear in court or any quasi-judicial body as counsel. 7. Provided, however, that the "not in good standing" status shall subsist even after the lapse of the 3-month period until and unless the penalty shall have been paid. 8. Any lawyer who fails to comply with his duties under this Rule for at least 3 consecutive years shall be the subject of disciplinary proceedings to be instituted motu proprio by the Committee on Bar Discipline (Sec. 7, B.M. No. 2012).

2.

A lawyer who renders mandatory legal aid service for the required number of hours in a year for at least two consecutiveyears within the three year· period covered by a compliance period .under the Rules on MCLE shall be credited the following: 1. One (1) credit unit for legal ethics 2. One (1) credit unit for trial and pretrial 3. 4. 5. 6.

The falsification of a certificate or any contents thereof by any Clerk of Court or by any Chairperson of the Legal Aid Committee of the IBP local chapter where the case is pending or by the Director of a legal clinic or responsible officer of an NGO (nongovernmental organizations) or PO (people's organizations) shall be a ground for an administrative case against the said Clerk of Court or Chairperson. This is without prejudice to the filing of the criminal and administrative charges against the malfeasor(Sec. 7[e], B.M. No. 2012). NOTE:

skills One (1) credit unit for alternative dispute resolution Two (2) credit units for legal writing and oral advocacy Two (2) credit units for substantive and procedural laws and jurisprudence Three (3) credit units for such subjects as may be prescribed by the MCLE Committee under Section 2(g), Rule 2 of the Rules on MCLE (Sec. 8, B.M. No. 2012).

·PENALTIES FOR NON·COMPLIANCE

WITH

·. · .THERULE'Or:,I MANDATORY LRGAL AID · .. . . .

.· ,

;.

' SERVICE . .

:

. • ; · .

At the end of every calendar year, any practicing lawyer who fails to meet the minimum prescribed 60 hours of legal aid service each year shall be required by the IBP1 through the National Committee on Legal Aid (NCLA), to explain why he was unable to render the minimum prescribed number of hours. 2. If no explanation has been given or if the NCLA finds the explanation unsatisfactory, the NCLA shall make a report and recommendation to the IBP Board of Governors that the erring lawyer be declared a member of the IBP who is not in good standing. 3. Upon approval of the NCLA's recommendation, the IBP Board of Governors shall declare the erring lawyer as a member not in good standing. 1.

•

147

UNIVERSITY OF SANTO TOMAS~ FACULTY OF CIVlL LAW

'9'

•

LEGAL ETHICS 4. 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. Has NOT been convicted in the first instance of any crime involving moral turpitude (Second par; Sec. 1, Rule JI!, 2004

NOTARIAL PRACTICE (A.M, No, 02-8-13-SC, July 6, 2004, AS

AMENDED) Purpose of the Notarial Law

Rules on Notarial 13-SC).

To promote, serve, and protect public interest; 2. To simplify, clarlfy, and modernize the rules governing notaries public; and 3. To foster ethical conduct among notaries public (Sec. 2; Rule l A.M. No. 02-8-13-SC). 1.

. · LA

Practice, A.M. No. 02-8-

ERS"AS NOTARY PUBLIC' ·

GR: Only those admitted to the practice of law are qualified to be notaries public.

Effect of notarized document

necessary qualifications or where there are qualified persons, but they refuse appointment. In which case, the following persons may be appointed as notaries:

A document acknowledged before ·a notary public Is a public document (Sec. 19, Rule 132, RRC) and may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved (Sec. 30, Rule 132, RRC).

1. Those who passed the studies of law in a reputable university; or 2. A clerk or deputy clerk of court for a period of not less than two years .

. · QUALIFICATIONS OF NOTARY PUBLIC." :

'

Notary public

Non-Lawyers as Notaries

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

The Rules require that notaries must be members of the Philippine Bar. The Supreme • Court no longer approves request.s from nonlawyers for appointment or reappointment as notaries. Government Lawyers as Notaries

NOTE: "Notary Public" and "Notary" refer to any person commissioned to perform official acts under the rules on Notarial Practice (Sec.

Acts of notarization are within the ambit of the term "practice of law". Pursuant to Memorandum Circular No. 17, "No Government officer or employee shall engage directly in any private business, vocation, or profession or be connected with any commercial, credit, agricultural. or industrial undertaking without a written permission from the head of Department". The law allows government lawyers to serve as notaries provided there is written permission from the head of Department.

9, Rule !I, A.M. No. 02-8-13-SCJ.

Qualifications

ofa notarypublic

•

XPNs: When there are no persons with the

[C21-RMC]

To be eligible for commissioning public, the petitioner must be:

as notary

1. A citizen of the Philippines; 2. Over 21 years of age; 3. A resident in the Philippines for at least 1 year and maintains a regular place of work or business in the city or province where the c~mmission is to be issued;

NOTE: In a case, a lawyer was reprimanded for engaging in notarial practice without the authority from the Secretary of Justice. The Registry of Deeds with whom he obtained authority is not the head of the Department (Abella v. Atty. Cruzabra, A.C. No. 5688, June 4, 2009).

NOTE: This is to prohibit the practice of some notaries who maintain makeshift "offices" in sidewalks and street corners of government offices (Tirol, 201 OJ.

148

•

•

NOTARIAL PRACTICE

1. All notarial fees charged be for the account of the Government and turned over to the municipal treasurer 2. Certification be made in the notarized documents attesting to the Jack of any

Clerk of Court as Notary Public Clerk of court may act as notary public, provided he is commissioned and has been permitted by his superior. Such consent is

lawyer

necessary because the act of .notarizing a document Is a practice of law.

arc

judges

public

In

sueh

Their authority to notarize is limited to their sala, Hence, they cannot notarize documents filed in another town because it will be considered as practice of law (Tabao v. Judge Asis, A.M. No. RTJ-95-1330,january 30, 1996). Vicente Batie charged Judge VictorioGalapon Jr. with engaging in unauthorized notarial practice for having notarized a Deed of Absolute Sale between Antonio Caamic and LualhatiEllert. Under the deed of sale, Ellert, was described as single. At the time of Galapon's notarization of the Deed of Sale, there was a notary public in Dulag, Leyte. Judge Galapon claims that he did not prepare the document and that his participation was limited to its acknowledgment, for which the corresponding fee was collected by and paid to the clerk of court. Is Judge Galapon authorized to notarize the Deed of Absolute Sale? Q:

to

Section 35, Rule 138, of the Revised Rules of Court and Canon 5, Rule 5.07 of the Code of Judicial Conduct provides that no judge or other official or employee of the superior courts shall engage in private practice as a member of the bar or give professional advice to clients. Notarization of documents is considered a practice of law(Tabao v. Judge Asis, A.M. No. RTJ.95-1330,January 30, 1996). The rights, duties, privileges and functions of the office of an attorney-at-law are so inherently incompatible with the official functions, duties, powers, discretions and privileges of a judge of the Regional Trial Court(Tabao v.Judge Asis, AM. No. RTJ-95-1330, [anuary 30, 1996).

A: NO. While Judge Galapon explains that he sincerely believed that when no notary public is available, the MTC may act as ex-officio notary public, provided the fees shall be for the government, such is not enough to exonerate him from liability. His acts do not fall under the • exception because ~t the time of his notarization of the Deed of Sale, there was a notary public in Dulag, Leyte (Batie v. Judge VictorioGalapon Jr., A.M. No. MTJ-99-1239, July 29, 2005).

Authority of MTC judges to notarize and its limitation MTC and MCTC judges may act as notaries public ex-officio in the notarization of documents connected only with the exercise of their official functions and duties. They may not, as notaries public ex-officio, undertake the preparation and acknowledgment of private documents, contracts and other acts of conveyances which bear no direct relation to the performance of their functions as judges.

or notary

municipality or circuit (Tabao v.Judge Asis, A.M. No. RTJ-9S-1330,January 30, 1996).

NOTE: Clerks of Court of RTCs are authorized to notarize not only documents relating to the exercise of official functions but also private documents, subject to conditions that: (a) all notarial fees charged shall be for the account of the Judiciary; and (b) they certify in the notarized documents that there are no notaries public within the territorial jurisdiction of the RTC. Prohibition against the notarize

1,

·

. ·. .

COMMISSION

·.

It refers to the grant of authority to perform ~ notarial acts and to the written evidence of the authority (Sec. 3, Rule tt. A.M. 02-8-13-SC).

•

Issuance of notarialcommission A notarial commission may be issued by an Executive Judge to any qualified person who submits a petition in accordance with the Rules on Notarial Practice (Sec. 1, first par; Rule Ill, A.M. No. 02-8-13-SC).

However, MTC and MCTC judges assigned to municipalities or circuits with no lawyers or notaries public may, in the capacity as notaries public ex-officio, perform any act within the competence of a regular notary publlc, provided that:

149

UNIVERSITY OF SANTO TOMAS¢~ FACULTY OF CIVIL LAW ·y

•

LEGAL ETHICS Form of the petition and supporting documents for a notarial commission

and b. the legality of the act executed.

Every petition for a notarial commission shall be in writing, verified, and shall include the following:

·

·

·.

1. Tokeep a notarial register 2. To make the proper entry or entries in his notarial register touching his notarial acts in the manner required by the law 3. To send the copy of the entries to the proper clerk of'.court within the first 10 days of the month next following 4. To affix to ackn.owledgments the date of expiration of hi~ commission, as required bylaw · 5. To forward his; notarial register, when filled, to the proper clerk of court 6. To make report, within reasonable time to the proper judge concerning the performance of his duties, as may be required by such judge 7. To make the proper notation regarding residence certificates (Sec. 240 Rev. Adm. Code).

1. A statement containing the petitioner's personal qualifications, including the petttioner's date of birth, residence, telephone number, professional tax receipt, roll, of attorney's number and IBP membershit number: · . 2. Certification of good moral character of the petitioner by at least 2 executive officers of the local chapter of the Integrated Bar of the Philippines where he is applying for commission; 3. Ptoof of payment for the filing of the petition as required by the Rules on Notarial Practice; and 4. Three passport-size color photographs with light background taken within 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. 2, Rule lll, A.M. No. 02·8-13-SC).

•

1

.: · ·

1.

NOTE: Every petitioner for a notarial commission shall pay the application fee as prescribed in the Rules of Court (Sec. 3, Rule Ill, A.M. No. 02·8·13-SC).

2.

Requirements before the executive judge conduct a summary hearing on the petition 1.

The petition is sufficient in form and substance; 2. The petitioner proves the allegations contained in the petition; and 3. The petitioner establishes to the satisfaction of the Executive Judge that he has read and fully understood the Rules on Notarial Practice.

3.

4.

NOTE: The Executive Judge shall forthwith issue a commission and a Certificate of Authorization to Purchase· a Notarial Seal in favor of the petitioner (Sec. 4, Rule lll, A.M. No. 02-8-13-SC)

5.

Two kinds of duties 1.

Execution of formalities required by law; and 2. Verification of: a, the capacity and Identity of the parties: UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTEf

DUTIES OF A NOTARY PUBLIC

150

FEES()F NOTARYPU]lLIC

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. 1, Rule V, A. M. 02-8·13-SC): A notary public may charge travel fees and expenses separate from the notarial fees when traveling to perform a notarial act if the notary public and the person requesting the notarial act agree prior to the travel (Sec. 2, Rule, A. M. 02·-813-SC); No fee or compensation ofany kind, except those expressly prescribed and allowed herein, shall be collected or received for any notarial service (Sec. 3, Rule V, A. M. 02· 813-SC); A notary public shall not require payment of any fees specified prior to the performance of a notarial act unless otherwise agreed upon (Sec. 4, first par., Rule V, A. M. 02-813-SC); 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 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 (Sec. 4, second par; Rule V, A. M. 02-813-SC).

•

NOTARIAL PRACTICE NOTE: A notary public who charges 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 charges for services rendered. A notary public shall post in a conspicuous place in his office a complete schedule of chargeable notarial fees (Sec. 5, Rule V, A. M. 02-813-SC).

A: YES. Absent any showing that his notarial commission has been renewed, his act constitutes malpractice because at the time he notarized the document, his notarial commission has already expired. It is not a defense that no payment has been received. The requirement for the issuance of the commission as notary public must not be treated as a mere casual formality, In fact, Juan's act also constitutes falsification of public document.

Q: Ms. Seller and Mr. Buyer presented to a commissioned notary public a deed of sale

for notarization. The notary public explained to them the transaction the deed embodies and asked them if they were freely entering the transaction. After the document was signed by all the parties, the notary public collected the notarial fee but did not issue any BIR-registered receipt. Is the notarization of the deed proper? (2013 Bar)

.

· ·.: ·. EXPIRED COMMISSION

A notary public may file a written application with the Executive Judge for the renewal of his commission within 45 days before the expiration thereof. A mark, image or impression of the seal of the notary public shall be attached in the application (Sec. 13, first par; Rule Ill, A.M. No. 02-8-13-SC).

A: The notarization of the deed is proper because any irregularity in the payment of the notarial foes does not affect the validity of the notarization made (Ocampo v. Land Bank of the Philippines, G.R. No.164968,july 3, 2009).

NOTE: If a person Is applying for a commission for the first time, what he files Is a petition and not an application (Sec. 2, Rule Ill, A.M. No. 02· B-13-SC),

·

f.<

. :TERMOF. OFFICEOf A NOTARYPUBLIC :

Failure of the notary public to file an application for the renewal of his commission

Term of office of a notary public (1995 Bar)

Failure to file said application will result in the deletion of the name of the notary public in the register of notaries public and may only be reinstated therein after he is issued a new commission (Sec. 13, second and third pars; Rule Ill, A.M. No. 02-8-13-SC).

A notary public may perform notarial acts for a period of 2 years commencing the 1st day of January of the year in which the commissioning is made until the last day of December of the succeeding year regardless of the actual date when the application was renewed, unless earlier revoked or the notary public has resigned under the Rules on Notarial Practice and the Rules of Court (Section 11, Rule Ill, A.M. No. 02-8-13-SC).

NOTE: The Executive Judge shall, upon payment of the application fee, act on an application for renewal of a commission within thirty (30) days from receipt thereof. If the application is denied, the Executive Judge shall state the reasons therefor (Sec.14, Rule II[, A.M. No. 02-8-13-SC).

Example: Atty. Antonio applied for and was given notarial commission on 12 November 2010, such term will expire on 31 December 2011 (2011 Bar).

•

Q: Atty. Alvarez notarized a Joint Affidavit in

1993, and an Application for Business Permit and the SPA of Amante in 2010, all in San Pedro, Laguna. However, as per the October S, 2011 Certification issued by COC Beran-Baraoidan of the RTC-San Pedro, Atty. Alvarez was commissioned as a notary public for and within San Pedro, Laguna only from 1998 to 2005, and that the said commission has not been renewed in 2010 and therefore, already expired. Additionally, the jurat of the 2010

Q: Juan dela Cruz was commissioned as a

notary public in 2001. His friend asked him to notarize a deed of absolute sale sometime in 2004, to which he agreed free of charge. A complaint for malpractice was filed against him. Is Juan dela Cruz guilty of malpractice?

151'

U NlVERSITY OF SANTO TOMAS'~ FACULTY OF CIVIL LAW ·9•

•

LEGAL ETHICS Application for Business Permit which Atty. Alvarez notarized did not hear the details of the competent evidence of identity of its principal-signatory. While this application appears to be a ready-made form issued by the Municipality of San Pedro, Laguna. As

will enable the 'notary public to verify the genuineness of the signature of the

toe Beran-Baraoidan,

Thi! ab~@tmi or tt.tlt:ir!~attatt e,f tit!! Deed ef Sal@

affiant(Abu~gos v. Viray, A.C. No. 7350, February 18, 2013).

Absence of notarization in a deed of sale

p@r th@ S@pt@mb@r at, 20U C@rtifilmtion issued

by

'i

a coi>Y af

the SPA executed by Amante was not

would not necessarily Invalidate the transaction evidenced therein. Article 1358 of the Civil Code requires that the form of a contract that transmits or extinguishes real rights over immovable property should be in a public document, yet it is also an accepted rule that the failure to observe the proper form does not render the transaction invalid. Thus, it has been uniformly held that the form required in Article 1358 is not essential to the validity or enforceability of the transaction, but required merely for convenience (Camcam v. CA, G.R. NO.

submitted before the Office of the COC of the RTC-San Pedro. Did Atty. Alvarez violated the 2004 Notarial Rules? · A: YES. Atty. Alvarez committed the following violations of the Notarial Rules: First, he performed notarial acts without the proper notarial commission therefor. Second, he notarized a document that is bereft of any details regarding the identity of the signatory. Third, he failed to forward to the COC of the commissioning court a certified copy of each month's entries and a duplicate original copy

142977, September 30, 2008; Tigno v. Sps. Aquino, G.R, No. 129416, November 25, 2004).

of any Instrument ctckMwledged before hlm (Miranda v. Atty. Alvarez, A.C. No. 12196,

.

September ..

os, 2018, PERLAS-BERNABE).

· · POWERSAND LIMITATIONS

1.

6.

· ·

o .

1.

2.

Notarization converts a private document to a public instrument, making it admissible in evidence without the necessity of preliminary proof of its authenticity· and due execution. A notarized document is by law entitled to full credit upon its face and it is for this reason that notaries public must observe the basic requirements In notarizing documents (Dela Cruz, et al. v. Atty. Dimaano, jr; A.C. No. 7781,

3.

September 12, 2008). A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein. The presence of the parties to the deed UNIVERSITY OF SANTO GOLDEN NOTES

2019

To MAS

Appears in person before the notary public and presents an integrally complete instrument or document; NOTE: A notary public cannot perform a notarial act over a document that has missing pages, or that contains blanks that should be filled-in prior to the notarial act

NOTARlZATION OF A PRIVATE DOCUMEN'r'

\~/

ACl
•

Acknowledgments; Oaths and affirmations; Jurats; Signature witnessing; Copy certifications; and Any other act authorized by the rules (Section l(a), Rule m A.M. No. 02·8·13-SC).

(ii\

.

Refers to an act in which an individual on a single occasion:

A notary public is empowered to perform the following notarial acts: [JAO·CASJ 2. 3. 4. 5.

.··

•

Is attested to be personally known to the notary public or identified by the notary public. through competent evidence of identity as defined by the Rules on Notarial Practice; and · Represents to th~ 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. 1, Rule fl, A.M. 02-8-13-SC).

Q: Cabanilla filed a complaint against Atty. Cristal-Tenorio with the IBP, alleging that he never appeared before her when she notarized the deed of sale of his house, and that the signatures appearing opposite

lSZ

NOTARIAL PRACTICE their respective names were forgeries. Did Atty. Cristal-Tenorio fail to comply with the mandates of the law when she notarized the deed of sale without the complainant and his children? Does such failure warrant the revocation of her notarial commission?

1.

2.

3.

A: YES. Under Section l(a) of Act 2103, a notary public taking the acknowledgment in a document or instrument is mandated to certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it: and acknowledged that the same is his free act and deed. To "acknowledge before" means to avow; to own as genuine, to assert, to admit; and "before" means in front or preceding in space or ahead of. A party acknowledging must appear before the notary public. A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before the said notary public to attest to the contents and truth of what are stated therein. The presence of the parties to the deed making the acknowledgment will enable the notary public lo verify the genuineness of the signature of the affiant. A notary public is enjoined from notarizing a fictitious or spurious dor.ument. The function of a notary public is, among others, to guard against any illegal deed (Cabanilla v. Cristal· Tenorio, A.C. No. 6139, November 11, 2003).

Appears in person before the notary public; Is personally known to the public or identified by the notary through competent evidence of identity as defined by the Rules; and Avows under penalty of law, to the whole truth of the contents of the instrument or document.

Officers allowed to administer (Republic Act No. 9406):

oaths

President; Vice-President; 3. .Members and Secretaries of both Houses of the Congress; 4. 'Members of the Judiciary; 5. Secretaries of Departments: 6. Provincial governors and lieutenantgovernors; 7. City mayors; 8. Municipal mayors; 9. Bureau directors; 10. Regional directors; 11. Clerk of courts; 12. Registrars of deeds; 13. Other civilian officers in the public service of the government of the Philippines whose appointments are vested in the President and are subject to confirmation by the Commission on Appointments; 14. All other constitutional officers; 15. PAO lawyers in connection with the performance of duty; and 16. Ombudsman (Sec. 1S(B), RA 6770). 17. Notaries public (Sec. 41, Chapter J, Book t, E.0.292). 1. 2.

Q: "Before me personally appeared this 30th of August 2010 Milagros A. Ramirez, who proved her identity to me through witnesses: 1. Rosauro S. Balana, Passport UU123456; 1-5-2010/Baguio City; and 2, Elvira N. Buela, Passport W200345; 1-172009 /Manila. "Both witnesses, of legal ages, under oath declare that: Milagros A, Ramirez is personally known to them; she is the same seller in the foregoing deed of sale; she does not have any current identification document nor can she obtain

Officers authorfzed to administer oaths, with the exception 1of notaries public, municipal ~ judges and clerks of court, are not obliged to administer oaths or execute certificates save in matters of official business or in relation to

one within a reasonable tlme: and they are

their functions as such; and with the exception

not privy to or are interested in the deed he

of notaries public, the officer performing the service in those matters shall charge no fee, unless specifically authorized by law (Section 42, Chapter I, Book l, E.G. No. 292).

Duty to administer oaths

signed." What is the status of such a notarial acknowledgement'? (2011 Bar) A: Valid, since it is a manner of establishing the identity of the person executing the document. ·.

'

AFFIRMATION OR OATH

NOTE: P.A.0. Lawyers now have the authority to administer oaths, provided it is in connection with the performance of their duties. 1 ~r

:

1:

Refers to act in which an individual on a single occasion:

153

u NlVERSJTY

OF SANTO TOMAS~ FA CUL TY OF CIVIL LAW

·y

•

•

LEGAL ETHICS The fiscal or the state prosecutor has the authority to administer oaths (RA No. 5180, as amended by P.D. 911). .

· ·

·

JURAT

instrument or document is known to him and he is the same person who executed it and acknowledged that the same is his free act and deed. Two-fold purpose: To authorize the deed to he given in evidence without further proof of its execution. and, to entitle it to be recorded.

·

Refers to an act in which an individual on a single occasion: 1.

Appears in person before the notary public and presents an instrument or document;

2.

ls personally known to the notary public or identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice;

3.

Signs the instrument or document presence of the notary; and

4.

Takes an oath or affirmation before the notary public as to such instrument or document (Sec. 6, Rule JI, A.M. 02-8-13-SC).

Where used: 1. To authenticate an agreement between two or more persons; or 2. Where the document contains a disposition of property.

in the

properly made.

Purpose: Gives the document a legal character.

•

Where used: 1. Affidavits; 2. Certifications; 3. Whenever the person executing makes a statement of facts or attests to the truth of an event, under oath.

•

NOTE: A jurat is not a part of a pleading but merely evidences the fact that the affidavit.was properly made. The claim or belief of Atty. Dela Rea that the presence of petitioner Gamido was not necessary for the jurat because it is not an acknowledgment is patently baseless. If this had been his belief since he was first commissioned as a notary public, then he has been making a mockery of the legal solemnity of an oath in ajurat. Notaries public and others authorized by law to administer oaths or to take acknowledgments should not take for granted the solemn duties appertaining to their offices. Such duties are dictated by public policy and are impressed with public interest (Gamido v. Bi/ibid Prisons Officials, G.R. No. 1.14829, March 1, 1995). Acknowledgment

E.g. •

executed a deed, in going to some competent officer or court and declaring It to be his act or deed

The notary public or officer taking the acknowledgment shall certify that the person acknowled~ine; the

JURAT-

UNIVERSITY

\ ... JI

2 0 1 9 GO LDE N N

is

. . -: 'SIGNATURE WITNESSING ·

Refers to a notarial act in which an individual on a single occasion: 1.

...

Appears in person before the notary public and presents an instrument or document; ls personally known to the notary public or identified by the notary public through competent evidence of identity as defined

by the Rules on Notarial Practice; and

affidavit in which the notary public or officer certifies that the instrument was sworn to before him.

3,

Signs the instrument or document In the presence of the notary public {Sec.14, Rule II, A. M. No. 02-8-13-SC).

Q: Is a notary public authorized to certify the afflxlng of a signature by thumb or other mark on an instrument or document presented for notarization? (1995 Bar)

It is not part of a pleading but merely evidences the fact that the affidavit was

OT ES

subscribed before a notary public or public official authorized for the ur o;. ;s"""e'-. .........

'

·

That part of an

OF SANTO TOMAS

{.-.)

E.g. An . affidavit

1.1.

2. .

The a

NOTE: In notarial wills, acknowledgment required, not merely}ajurat.

v, Jurat

. :ACKNOWLEDGMENT Act of one who has

acknowledgment in deed of lease of land.

A: YES. It is also within the powers of a notary public, provided:

154

•

NOTARIAL PRACTICE 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 (Sec. l(b), Rule IV, A.M. No. 02-813-SC).

NOTE: The document copied must be an original document It cannot be a copy itself.

Q: Is a notary public authorized to sign on

. LIMITATIONS TO THE PERFORMANCE OF A

behalf of a person who is physically unable to sign or make a mark on an instrument or document? (1995 Bar)

. LIMITATION ASTO THE l'LAc.t,;

.

.

Refers to the part df, or attachment to a notarized instrument· or document that is completed by the notary public which bears the notary's signature.and seal, and states the facts attested to by (he notary public in a particular notarization· as provided for by the Rules on Notarial Practice (Sec. 8, Rule II, A. M. No. 02·8-13).

NOTE:."Loose notarial certificate" refers to a separate notarial certificate that is attached to a notarized instrument or document. ·. ·

.

. ·. ·

N.OTARIALACT

· . ·

.

GR: A notary public shall NOT perform a notarial act outside his regular place of work or business

A: YES. It likewise falls within the powers of a notary public, provided: 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 2 disinterested and unaffected witnesses to the instrument or document; 3. Both witnesses sign their own names; 4. The notary public writes below his signature: "Signature affixed by notary in the presence of (names and addresses of person and 2 witnesses)": and 5. The notary public notarizes his signature by acknowledgment or jurat(Sec. 1 (c), Rule IV, A.M. 02-8-13-SC). .

." .: NOTARIAL CERTIFICATE

1.

. .

. . · . .'. ·COPY CERTIFICATION

· ..

·. ··

Refers to a notarial act in which a notary public: Is presented with an instrument or document that is neither a vital record, a public record, nor publicly recordable: 2. Copies or supervises the copying of the instrument or document; 3. Compares the instrument or document with the copy: and 4. Determines that the copy is accurate and complete (Sec. 4, Rule II, A.M. 02-8-13-SCJ .•

XPN: 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 (Sec. 2(a), Rule IV, A.M. No. 02-8-13SC).

NOTE: It is improperfor a notary public to notarize documents in' the sidewalk since it is now required that a'; notary public should maintain a regular place of work or business within the city or province where he is commissioned. The Supreme Court evidently wants to eradicate the practice of 'Jly by night" notaries public who notarized documents in "improvised" offices.

1.

• Q: Almazan Sr. filed a complaint against Atty. Suerte-Feltpe for notarizing the

155

U NIVERS1TY OF SANTO '!'OMAS ~ FACULTY OF CrVl'L LAW •..,.

•

•

LEGAL ETHICS acknowledgment of the document entitled "Extra judicial Settlement of the Estate of the Deceased Juliana P. Vda. De Nieva" in 1999 stating that he is a "notary public for and in the City of Marikina." Atty. suerteFelipe denied and claimed that he was a notary public for the City of Pasig and .in the Municipalities of Taguig, Pateros, San Juan, and Mandaluyong for the years 1998-1999. Should Atty. Suerte-Fellpe be administratively liable?

however, foreclosed and the mortgaged properties were not redeemed to the great prejudice of Dandoy and his siblings. Should Atty. Edayan be held administratively liable? A: YES. The 2004 Rules on Notarial Practice provides that a notary public should not notarize a document unless the signatory to the document Is in the notary's presence personally at the time of the notarization, and personally known to the notary public or otherwise identified through competent evidence of identity. In this case, Atty. Edayan, as duly found by the IBP, was remiss in the faithful observance of his duties as a notary public when he failed to confirm the identity of the person claiming to be Jacinto through the competent evidence of identity required by the 2004 Notarial Rules. Records show that Jacinto passed away on July 13, 1999, and therefore, clearly could not have appeared before respondent to sign and execute the. two (2) documents. Had Atty. Edayan been more circumspect in performing his duties as notary public and asked for the photographand-signature· bearing Identification document required by the 2004 Notarial Rules, he Would have immediately discovered that the person before him was not the person whom he purports to be (Dandoy v. Atty. Edayan, A.C. No. 12084,June 6, 2018, PERLAS-BERNABE).

A: Yes. While appearing to be a harmless incident, Atty. Suerte-Felipe's act of notarizing documents in a place outside of or beyond the authority granted by his notarial commission, partakes of malpractice of law and falsification (Almazan, Sr. v. Atty. Suerte-Pelipe, A.C. No. 7184, September.17, 2014, PERLAS-BERNABE).

LIMITATION AS TO WHO IS Tl-IE SIGNATORY

A person shall NOT perform a notarial act if the person involved .as signatory to the instrument or document is: a.

Not In the notary's presence personally at: the time of the notarization; and (Sec. 2(b)(1), Rule IV, A.M No. 02·B·13·SCJ. b. Not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice (Sec.2(b)(2), Rule IV, A.M. No. 02·813-SlJ. c, The document is blank or incomplete; (Sec.6 (a) Rule IV, A.M. 02-8-13-SC). d. An instrument or document is without appropriate notarial certification (Sec. 6, Q: Dandoy alleged that Atty. Edayan notarized: (a) a Special Power of Attorney executed by his father, Jacinto S. Dandoy, in favor of a certain Antoine Cyrus C. Garzo (Garzo) granting the latter authority to offer as collateral two (2) parcels of land located in San Juan, Slquijor; and (b) a Deed of Extrajudicial Settlement of Real Estate of Dandoy's late grandmother, Eutiquia Sumagang, wherein his father was also one of the parties. According to Dandoy, Jacinto could not have been present before respondent because he already passed away. He added that, through the SPA and the Deed, Garzo was able to mortgage the two (2) parcels of land as security for a P400,000.00 loan. The mortgage was, UN I VB RS I TY O F SA NT O TOM AS

\..! .,.11 2 0 1 9 G O L DB N N O r s S

•

Q: Nicanor Triol and his sister, Grace, are co-owners of a land. Triol decided to sell the land to a Leonardo Caparas but failed, as he could not obtain the signature of Grace who was already residing in the United States at that time. Subsequently, Triol discovered that a Deed of Absolute Sale was executed and notarized by Atty. Agcaoili. Is Atty. Agcaoi!i liable for violating the 2004 Notarial Rules?

Rule IV, A.M. 02·8-13-SC).

(ill_..)

•

A: YES, Under Section 2 (b), Rule IV of the 2004 Notarial Rules, a notary public is not allowed to notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein. The purpose of this requirement is to enable the notary public to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party's free act and deed. Here, both Nicanor Trio) and Grace could not have personally appeared before Atty. Agcaoili, since Grace was already residing at the U.S. at

156

.

.·, '·

"

NOTARIAL PRACTICE the time of the supposed notarization (Trio/ v. Atty. Agcaoili, A.C. No. 12011, June 26, 2018, PERLAS-BERNABE).

~

notary public? A: YES. Atty. Beradio's conduct breached the Code of Professional Responsibility, which requires lawyers to obey the laws of the land and promote respect for the law and legal processes as well as Rule 1.01 of the Code which proscribes lawyers from engaging in unlawful, dishonest, immoral, or deceitful conduct. She herself admitted that she knew of the falsity of Alfonso's statement that he was the "sole heir" of the spouses. She therefore

Q: Cynthia filed an application for building permit in connection with the renovation of a building situated on a lot owned by her brother Rolando de la Cruz. One of the documents required in the processing of the application was an affidavit be executed by the lot owner. Since Rolando de la Cruz was a resident abroad, an affidavit was prepared wherein it was made to appear that he was a resident of Leyte. Atty. Francisco Villamor notarized the purported affidavit, According to him, a Chinese mestizo appeared in his law office one time, requesting that his affidavit be notarized. Said person declared that he was Rolando de la Cruz. Atty. Villamor then asked for the production of his residence certificate, but he said, he did not bother to bring the same along with him anymore as, he has already indicated his serial number in the jurat portion together with the date of issue and place of issue. Did Atty. Francisco Villamor commit a violation of notarial law?

to

notarized a document whilefully aware that it contained a material falsehood. The affidavit of adjudication is premised on this assertion. By this instrument, Alfonso claimed a portion of his parents' estate all to himself, to the exclusion of his co-heirs. Shortly afterwards, Atty. Beradio notarized the deed of sale, knowing that the deed took basis from the unlawful affidavit of adjudication (Heirs of the Late Spouses Lucas v.Atty. Beradio, A.C. No. 6270,January 22, 2007).

NOTE: If the notary public admitted that he has personal knowledge of a false statement contained in the instrument to be notarized yet proceeded to affix his or her notarial seal on it, the court must not hesitate to discipline the notary public accordingly as the circumstances of the case may dictate. Otherwise, the integrity and sanctity of the notarization process may be undermined and public confidence on notarial documents diminished (Heirs of the late SpousesLucas v. Atty. Beradio, AC. No. 6270,January 22; 2007).

A: YES. It is the duty of the notarial officer to demand that the document presented to him for notarization should be signed in his presence. By his admission, the affidavit was already signed by the purported affiant at the time it was presented to him for notarization. Atty. Villamor thus failed to heed his duty as a notary public to demand that the document for notarization be signed in his presence (Traya

DISQUALIFICATION OF A NOT ARY PUBLIC . . ·.TO PERFORM A NOTARIAL ACT

Jr. v. Vi!lamor, A.C. No. 4595, February 6, 2004).

Q: During their lifetime, the Spouses Villanueva acquired several parcels of land. They were survived by their S children: Simeona, Susana, Maria, Alfonso, and Florencia. Alfonso executed an Affidavit of Adjudication stating that as "the only surviving son and sole heir" of the spouses, he was adjudicating himself a parcel of land. Thereafter, he executed a Deed of Absolute Sale, conveying the property to Adriano Villanueva. Atty. SaludBeradio appeared as notary public on both the affidavit of adjudication and the deed of sale. Atty. Beradio knew of the falsity of Alfonso's statement. Florencia and descendants of the other children of the spouses were still alive at the time of execution of both documents. Was there a failure to discharge properly the duties of a

•

' A notary public is disqualified to perform notarial act when he: 1.

Is a party to the instrument or document that is to be notarized; NOTE: The function would be defeated if the notary public is one of the signatories to the instrument. For then, he would be interested in sustaining the validity thereof as it directly Involves himself and the validity of his own act. It would place him in an inconsistent position, and the very purpose of the acknowledgment, which is to minimize fraud, would be thwarted (Villarin v. Sabate, A.C. No. 3224, February 9, 2000).

1.57

U NTVERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW

·9·

•

LEGAL ETHICS engenders in the mind of the notary public reasonable doubt as to the farmer's knowledge of the consequences of the transaction requiring a notarial act; 3. In the 'notary's judgment, the signatory is not acting of his or her own free will (Sec.4, Rule V, A.M. No. 02-8-13-SC); or 4. If the document or instrument to be notarized is considered as an improper document by th;e Rules on Notarial Practice.

2. Will receive, as a direct or indirect result, any commission, fee, advantage, right title, Interest, cash, property, or other consideration, except as provided by the Rules on Notarial Practice and by law; or 3. Is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree (Sec. 3, Rule IV, A.M. No. 02·8·13·SC). Q: On March 2012, Kintanar's wife, Evangeline, filed a complaint against Mabini among other persons, for reconveyance, annulment of title, damages with prayer for preliminary injunction or restraining order. Attached to said complaint was an Affidavit of Loss Owner's Duplicate Copy of Title executed by Evangeline and notarized by Kintanar on April 25, 2002. According to Mablni, Klntanar knew that he was not authorized to notarize a document of his wife, or any of his relative within the fourth civil degree, whether by affinity or consanguinity. Klntanar countered that the subject Affidavit purportedly executed by his wife appeared to have been notarized on April 25, 2002; as such, it was governed by Revised Administrative Code of 1917. Did Kintanar commit misconduct by notarizing his wife's affidavit of loss in 2002? A: NO. A lawyer cannot be held liable for a violation of his duties as Notary Public when the Jaw in effect at the time of his complained act does not provide any prohibition to the same, as inthe case at bench. Prior to 1917, governing law for notaries public in the Philippines was the Spanish Notarial Law of 1889. However, the law governing Notarial Practice is changed with the passage of the January 3, 1916 Revised Administrative Code, which took effect in 1917. In 2004, the Revised Rules on Notarial Practice was passed by the Supreme Court Considering the foregoing, there is indeed no basis to hold Atty. Kintanar liable for misconduct for notarizing his wife's Affidavit in 2002 '(Mabini v. Kintanar, A.C. No. 9512, Feb 5, 2018).

,.

Example of an "Improper instrument" 1. A blank or incomplete instrument or document; or 2. An instrument or document without appropriate notarial certification (Sec. 6, Rule II, A.M. No. 02-8-13-SC).

.

REFUSE TO NOT J\RIZE

A: NO. A lawyer cannot be held liable for a violation of his duties as N otary Public when the law in effect at the time of his complained act does not provide any prohibition, to the same, as in the case at:. bench, Similarly, Atty. Diuyan notarized the Deed of Partition on July 23, 2003, or prior to the effectivity of the 2004 Rules on Notarial Practice, of which he is being held accountable by the IBP. However, when the Deed was notarized on July 23, 2003, the applicable law was the notarial law under Title IV, Chapter 11, Article VII of the Revised Administrative Code,Section 251 of which only

.'

1. The notary knows or has good reason to believe that the notarial act or transaction is unlawful or immoral; 2. The signatory shows a demeanor which

-

_:.;

{illlij'\ . UNIVERSITY

\~I

•

·Q: The Office of the Ombudsman finds it • unsettling that the Deed of Partition submitted before the DAR was notarized by Atty. Rohellito B. Diuyan on 23 July 2003, when one of the signatories therein, Alejandro F. Camilo, had earlier died on 23 August 2001. Atty. Diuyan admitted notarizing the Deed of Partition in his capacity as District Public Attorney of the Public Attorney's Office. He claimed that the signature as Notary Public in that Deed of Partition was indeed his. He added that Eight (8) persons appeared before him with the document deed of partition prepared by them. Atty. Diuyan asked them one by one if the document is true and correct and with their Community Tax Certificates, they answered in the affirmative and after being satisfied with their answer Atty. Diuyan notarized the document for free as they are considered as indigents. Should Atty. Diuyan be held liable for notarizing a Deed of Partition on the basis of the affiants' CTCs?

· INSTANCES WHEN NOTJ\RY·PUBLIC MAY · .

•

2019

OF SANTO TOMAS GOLDEN NOTES

•, !

158

.,

,]·.:·}

·.'1 ..

NOTARIAL PRACTICE required the presentation of the CTCs (In re: Decision dated September 26, 2012 in OMB-M·A· 10-023-A etc. against At~. RobelitoDiuyan, A.C. No. 9676, Apr. 2, 201 B},

of the negligence of the Notary Public in following the procedures prescribed by the Notarial Law (Destreza v. Atty. Riftoza-Plazo, G.R. No.176863, October 30, 2009),

. · .'

Signing or affixing a thumbmark in the notarial register

.

NOTARIAL REGISTER

.

·. ',

Notarial register At the time of notarization, the notary's notarial register shall be signed or a thumb or other mark affixed by each:

It refers to a permanently bound book with numbered pages containing a chronological record of notarial acts performed by a notary public (Sec 1, [a] par. 1, Rule VI, A.M. No. 02·8· 13-SC).

1. 2.

Duty of Notary Public

3.

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.

Principal; Credible witness swearing or affirming to the identity ofa principal; and 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. 3, Rule VI, A.M. No. 02-8-13-SC).

Inspection of a notarial register by private persons The inspection is made in the notary's presence; 2. During regular business hours; 3. The person's identity is personally known to the notary public or proven through competent evidence of identity as defined in these Rules; 4. The person affixes a signature and thumb or other mark or other recognized identifier, in the notarial register in a separate, dated entry; 5. The person specifies the month, year, type of instrument or document, and name of the principal in the notarial act or acts sought; and 6. The person is shown only the entry or entries specified by him (Sec.4 (a), Rule VJ, 1.

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 (Sec. 1(a), Rule VI, A.M. No. 02-8·13-SCJ. NOTE: Failure of the notary to make the proper entry or entries in his notarial register touching his notarial acts in the manner required by law is a ground for revocation of his commission (Father Ranhilio C. Aquino Et. Al., v. Atty. Edwin Pascua, A.C. No. 5095, November 28, 2007, En Banc).

•

A.M. No. 02·8·13-SCJ.

Notary public is personally accountable for all entries in his notarial register. They cannot be relieved of responsibility for the violation of the aforesaid sections by passing the buck to their secretaries (Lingan v. Atty. Caltbaoutb, A.C. No. 5377,June 15, 2006).

Examination of notarial _ enforcement officer

register by law

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 (Sec. 4(b), Rule V!,A. M. No. 02·8·13-SC).

Effect of failure to submit Report Notary's negligence in failing to submit his notarial report will not affect the admissibility as evidence of an instrument he notarized (Tirol, 2010). Parties who appear before a notary public to have their documents notarized should not be expected to follow up on the submission of the notarial reports. They should not be made to suffer the consequences

•

· LOSS, DESTRUc;TION and DAMA.GE OF

NO'rJ\RIJ\L REGISTER

1.

159

. ·

.

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 OF SANTO TOl\US FA CUL TY OF CIVIL LAW

UNIVERSITY

~

'9'

LEGAL ETHICS 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 2. 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. 5, Rule VJ, A. M. No. o~-B-13-SC). The notary publlc may refuse the request: of inspection for register of deeds 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. 4(c}, Rule VI, A.M. No. 02-8-13-SC). . PLACE OF NOTARIZATION

7184, September 17, 2014, PERLAS-BERNABE).

"Regular place of work or business" of a notary public meaning

. JURISDICTJON OF NOTARY PUBLIC AND •.· ·.

as notary public only in the City of Pasig and the Municipalities 6fTaguig, Pateros, San Juan, and Mandaluyong: at the time of the notarization, thus •· could not notarize the document's acknowledgment in the City of Marikina, as said notarial act is beyond the jurisdiction. The territorial limitation of a notary public's jurisdiction is cryscal clear from Section 11, Rule lII of the 2004 Rules on Notarial Practice. Said principle is equally echoed in the Notarial Law found in Chapter 12, Book V, Volume I of the Revised Administrative Code of 1917. For misrepresenting in the said acknowledgment that he was a notary public for and in the City of Marlkina, when it is apparent and. in fact, uncontroverted that he was not, Atty. SureteFelipe further committed a form of falsehood which is undoubtedly anathema to the lawyer's • oath and also runs afoul of Rule 1.01, Canon 1 of the CPR (Almazan v. Suerte-Felipe, A.C. No.

: . .:

A notary public may perform notarial acts any place within the territorial jurisdiction the commissioning court. Outside the place his commission, a notary public is bereft power to perform any notarial act.

The 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. 11, Rule II, 2004 Rules on

in of of of

Notarial Practice). Q: Atty. Sabungero obtained a notarial

commission. One Sunday, while he was at the cockpit, a person approached him with an affidavit that needed to be notarized. Atty. Sabungero immediately pulled out from his pocket his small notarial seal, and notartzed the document. Was the affidavit validly notarized? {2009 Bar)

Under the Notarial Law, the jurisdiction of a notary public is co-extensive with the province for which he was commissioned; and for the notary public in the city of Manila, the jurisdiction is co-extensive with said city. Circular 8 of 1985, however, clarified further that the notary public may be commissioned for the same term only by one court wlthin the MelTO Manila region.

i,;~

A: Section 2, Rule IV of the 2004 Rules on Notarial Practice prdyides that a Notary Public shall not perform a1 notarial act outside his regular place of work, except in few exceptional occasions or situations, at the request of the parties. Notarizing in a cockpit is not one of such exceptions. The prohibition is aimed to eliminate the practice of ambulatory notarization. However, assuming that the cockpit is within his notarial jurisdiction, the notarization may be valid but the notary public should be disciplined.

Q: Atty. Suerte-Felipe has a Certification issued by the Office of the Clerk of Court of the RTC of Pasig City, certifying the fact of his appointment as notary public for the City of Pasig and in the Municipalities of Taguig, Pateros, San Juan, and Mandaluyong. However, in the acknowledgment of thedocument he notarized, it was categorically stated that Atty. Surete-Felipe is a notary public for and in the City of Marikina, Province of Rizal, of which he was not. Can Atty. Suerte-Felipe be held administratively liable?

· . .• REVOCATION OF COMMISSION Who may revoke the notarial commission

A. YES. Atty. Suerte-Felipe was commissioned (.-.) \ .• ,.I'

UNIVERSITY OF SANTO GOLDEN NOTES

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160

•

•

NOTARIAL 1.

PRACTICE

The Executive Judge of the RTC who issued the commission on any ground on which an application for commission may be denied (Sec. 1, Rule X/ A.M. No. 02-8-13· SC); or By the Supreme Court itself in the exercise of its general supervisory powers over lawyer.

(Villarin v. Sabate, A.C. No. 3224, February 9, 2000).

.

1.

COMPETENTEVIDENCE OF IDENTITY

1

Z.

GROUNDSFOR REVOCATION

Competent evidence of identity refers to the identification of an individual based on the following:

·

The executive Judge shall revoke a notarial commission for any ground on which an application for a commission may be denied. In addition, the Executive Judge may revoke the comrmssicn of, or impose appropriate administrative sanctions upon, any notary public who:

At least one current identification document issued by an official agency bearing the photograph and signature of the individual such as but not limited to: a. b. c. d. e. f. g. h.

1. Fails to keep a notarial register; 2. Fails to make the proper entry or entries in his riotarial 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;

Passport l~ Driver's license: PRC ti NBI clearance ' Police clearance Postal ID Voter's ID Any other government issued ID (Sec 12 of Rule 2, 2004 Rules on Notarial Practice, as amended by A.M. No.02·8· 13-SC dated February 19, 2008).

2. 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 (Amendment to Sec. 12 (a), Rule II of the

NOTE: "Principal" refers to a person appearing before the notary public whose act is the subject of notarization.

•

2004 Rules on Notarial Practice, February 19,2008).

NOTE: Competent evidence of identity is not required in cases where the affiant is personally known to the Notary Public (Amora,

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 JV; · 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 (Sec. 1, Rule XI,

Jr. v. Comelec, G.R. No.192280, January 25, 2011).

A community tax certificate is NOT a competent evidence of identity . A community tax certificate or cedula is no longer considered as a valid and competent evidence of identity not only because it is not included in the list of competent evidence of identity under the Rules; more importantly, it does not bear the photograph and signatureof the person appearing .before notaries public which the Rules deem ~s the more appropriate and competent means by which they can

2004 Ruleson Notarial Practice).

NOTE: Functions of notary public - violations: suspension as notary not for the practice oflaw

161

U NIVF:RSITY OF SANTO TOMAS¢ FACULTY OF CIVIL LAW

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LEGAL ETHICS misconduct (Sec. 1, Rule XII, Rule on Notarial Practice).

ascertain the person's Identity (Unite v. Atty. Guzman, A.C. No. 12062, July 02, 2018, PERLAS· BERNABE). Q: Atty. ReglnoTamabago notarized a last will and testament under which the decedent supposedly bequeathed his entire estate to his wife, save for a parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, half siblings of Manuel Lee, the complainant. The wHI was purportedly executed and acknowledged before respondent on June 30, 1965. However, the residence certificate of the testator noted in the acknowledgment of the will was dated January .S, 1962. There is also absence of notation of the residence certificates of the purported witnesses. Did Atty. ReginoTamabago violate any of the duties of a notary public?

Cotlantes alleged that Atty. Mabuti notarized a document entitled "Memorandum of Agreement" dated October 10, 2009 in the City of Manila. He discovered that Atty. Mabutl was not commissioned as a notary public in the City of Manila for the years 2008 and 2009. A CertlflcationIssued by the Notarial Section of the Office of the Clerk of Court and Ex· Officio Sheriff of the Regional Trial Court (RTC} of Manila attested to the same. ls Atty. Mabuti administratively liable for violation of the 2004 Notarial Rules? Q:

A: Atty. Tamabago, as notary public, evidently failed in the performance of the elementary duties of his office. There is absence of a notation of the residence certificates of the notarial witnesses in the will in the acknowledgment Further, the notation of the testator's old residence certificate in the same acknowledgment was a clear breach of the law. The Notarial Law then in force required the exhibition of the residence certificate upon notarization of a document or instrument By having allowed decedent to exhibit an expired residence certificate, Atty. Tamabago failed to comply with the requirements of the old Notarial Law. As much could be said of his failure to demand the exhibition of the residence certificates of notarial witnesses. Defects in the observance of the solemnities prescribed by law render the entire will invalid (Manuel Lee v. Atry. ReginoTamabago, A.C. No. 5281, F(!bruary 12, 2008). ·..

·.

·.

SANCTIONS

A~ YES. A lawyer who performs a notarial act without such commission violates the lawyer's oath to obey the laws, specifically, the Notarial Rules. Here, Atty. Mabuti notarized the subject document, "Memorandum of Agreement," without being commissioned as a notary public at the time of notarization. Atty. Mabuti's transgressions ofthe·Notarial Rules also have a bearing on his standing as a lawyer. A lawyer who notarizes a document without a proper commission violates his lawyer's oath to obey the law. He makes it appear that he is commissioned when he is not. He thus indulges in deliberate falsehood that the lawyer's oath forbids. This violation falls squarely under Rule 1.01 of Canon 1 and Canon 7 of the CPR

(Col!antes v. At9'. Mabuti, f!.C. No. 9917, January 14, 2019, PERLAS-BERNABE)

· · · .

Punishable acts under the 2004 Rules on Notarial Practice The Executive Judge shall cause the prosecution of any person who knowingly: 1. Acts or otherwise impersonates a notary public; 2. Obtains, conceals, defaces, or destroys the seal, notarial register, or official records of a notary public; and 3. Solicits, coerces, or in any way influences a notary public to commit official

-·

{'.) ~ •• ,:V

UNIVERSITY

OF SANTO TOMAS NOTES

2019 Go LDEN

•

NOTE: Notarizing documents without the requisite commission therefore constitutes malpractice, if not the crime of falsification of public documents (St. Louis Laboratory High School Faculty And Staff V. Dela Cruz, A.C. No. 6010. August 28, 2006).

162

•

SOURCES

[-

JUDICIAL ETHICS

-1

(Luna v. Rodriguez and De Los Angele~~ G.R. No. L-13744, November 29, 1918).

Judicial ethics

Proper judicial deportment ,, ·.• 1. Attitude toward counsel - He must be courteous especially to the young and inexperienced, should not interrupt in their arguments except to clarify his minds as to their positions, must not be tempted to an unnecessary display of learning or premature judgment, may criticize and correct unprofessional conduct of a lawyer but not in an insulting manner.

The branch of moral science which treats of the right and proper conduct to be observed by all judges in trying and deciding controversies brought before them for adjudication and which conduct must be demonstrative of impartiality, integrity, competence, independence and freedom from improprieties. This freedom from improprieties must be observed in both the public and private life of a judge who is the visible representation of the law (Pineda, 2009)

2. Attitude

Judge A judge ls a public officer who, by virtue of his office, is clothed with judicial authority and is lawfully appointed to decide litigated questions in accordance with law (People v. Manantan, G.R. No. L-14129, August 30, 1962).

{Luna

v.

Rodriquez;

G.R. No. L-13744, November 29, 1918).

and

Judges and justices must conduct themselves as to be beyond reproach and suspicion and free from appearance of impropriety in their personal behavior, not only in the discharge of official duties but also in their everyday lives

De Jure Judge vs. De Facto Judge

[Tan v, Judge Pacuribot; A.M. No. RTJ-06-1982, December 14, 2007).

DE FACTO)UOGE. An officer who is not fully vested with all the powers and duties conceded to judges but, one who exercises the office of judge under some color of right. He has the reputation of the officer he assumes to be, yet he has some defect in his right to exercise judicial functions at the particular time (Luna

litigants

Proper judicial conduct

NOTE: This refers to persons only. There may be a judge without a court.

.. .'DEJURf:,JUDGE One who exercises the office of a judge as a matter of right, fully vested with all the powers and functions conceded to him under the law

toward

witnesses - He must be considerate, courteous and civil, must not utter intemperate language during the hearing of a case.

. · .. ·. · .

. SOURCES

·

· .

.

• ' Two main sources: a.

b.

.

New Code of Judicial Conduct 'for the Philippine Judiciary (NCJC); and Code of Judicial Conduct (CJC).

Other sources offudicial Ethics: 1.

v. Rodriguez, G.R. No. L· 13744, November 29, 1918.

2. 3.

' NOTE: There cannot be a de facto judge when there is a de Jure judge in the actual

4.

performance of the duties of the office. Moreover, one cannot be actually acting under any color of right when he has ceased to be a judge and has actually vacated the office by the acceptance of another office and by actually entering upon the duties of the other office

5. 6.

163

1987 Constitution particularly Article VIII (Judicial Department), Article XI (Accountability of i Public Officers), and Article Ill (Bill of Rlghts): New Civil Code (Articles 9, 20, 27, 32, 35, 739, 1491, 2.005, 2025 to 2035, and 2046): Rules of Court (Rule 71, 135, 137, 139-B, and 140): Revised Penal Code (Articles 204, 205, 206, and 207); Anti-Graft and Corrupt Practices Act (RA 3019) Canons of Judicial Ethics (Admin. Order No.162) UNIVERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW •..,.

•

JUDICIAL 7. Code of Professional Responsibility; 8, Judiciary Reorganization Act of 1980 (BP 129) 9. Supreme Court decisions; 10. Foreign decisions on judicial ethics which are relevant and persuasive; 11. Opinions of Authorities in Legal and Judicial Ethics; 12. Other Statutes; and 1.3. Administrative Orders and Supreme Court Circulars (Pineda, 2009).

CJC.

Purpose of adoption of the NCJC 1.

2.

. ..

Concerned primarily with the institutional independence of the

. Contained three guidelines explaining what judges "should

1. 2. 3. 4. 5. 6.

NEW

... \.~IE· ~ODE OF·J~DICIAL CONDUci'. : . · . · . FOR Tl-IE.PHILIPPINE JODICIARV .. : . · . · (A.M. NO. 03-05-01, June 1, 2004}. · ·

..

.

'

'

.

.

.

·

SIX 6 CANONS UNDER NC:JC . . .

:

Six canons [13-PE-CDJ

1 of the 1989 Code created a weaker mandate.

..

•

judiciary.

* Canon

.

To update and correlate the code of judicial conduct and canons of judicial ethics adopted for the Philippines. To stress the Philippines' solidarity with the universal clamor for a universal code of judicial ethics. ..- ,

NOTE: The New Cbde contains 6 Canons and 44Rules. ·

do"

'.

•

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.

New Code of Judicial Conduct for the Philippine Judiciary v, Code of Judicial Conduct ·. · . · .NCJC Focuses on the institutional and personal independence of iudicial officers Contains eight norms of conduct that judges "shall follow"

ETHICS

lndependence(Canon 1, NC/CJ lntegrity(Canon 2, NC/CJ lmpartiality(Canon 3, NC]C) Propriety(Canon 4, NCJC) Equality(Canon

Competence

5, NCJC) Diligence(Canon

and

6,

NC]C) .DUTIES'OFTHE JUDICIARY UNDER NCJC

.

Duties of the judiciary The New Code of Judicial Conduct (NCJC) for the Philippine Jttdiciary took effect on June 1, 2004 supersedes the Canons of Judicial Ethics and the Code of Judicial Conduct. Provided, however, that in case of deficiency or absence of specific provisions in the N CJ, C, the Canons of Judicial Ethics and Code of Judicial Conduct shall be applicable in a suppletory character (2007, 2009 Bar). :

1.

Duty to be above reproach and to appear above reproach (Sec. 1, Canon 2, NCJC) 2. Duty to be impartial (Canon 3, NC]C) 3. Duty to avoid improprieties and appearance of improprieties (Sec. 1, Canon 4, NCJC)

4.

i

History of the NCJC

5.

This · was adopted _ from the universal declaration of standards for ethical conduct embodied in the Bangalore Draft as revised at the Round Table Conference of Chief Justices at the Hague.

6.

Duty of financial transparency and duty to avoid financial conflicts of interest (Sec. 7, Canon 4, NC]C) Duty to be efficient, fair and prompt (Sec. S, Canon

6; NCJCJ

Duty to be free from favor, bias, or. prejudke(Sec. 1, Canon 3, NC]C)

It is founded upon a universal recognition that a competent, independent and impartial judiciary is essential if the courts are to fulfill (.--\

\..~.')

UN I VER SI TV O F SA NT O TOM A S 2019 GOLDEN NOTES

164 i

.,~

QUALITIES . , . · .

. :

QUALITIES ·

.

·

Judges should inspire public confidence in the

judiciary which can be attained only If judges are perceived by the public to be fair, honest, competent, principled, dignified and honorable. Accordingly, the first duty of judges is to conduct themselves at all times in a manner that is beyond reproach (NC}C Annotated,

. , (NF.W CODE OF JUDICIALCONDUct) . . ·, . · · ·INDEPENDENCE·. . , . .. CANON1 JUDICIAL INDEPENDENCE IS A PREREQUISITE TO THE RULE OF LAW AND A FUNDAMENTAL GUARANTEE OF A FAIR TRIAL.

Phi/JA). Judges must reject pressure by maintaining independence from, but not limited to the following:

A JUDGE SHALL, THEREFORE, UPHOLD AND EXEMPLIFY JUDICIAL INDEPENDENCE IN BOTH ITS INDIVIDUAL AND INSTITUTIONAL

1.

Judicial Independence

2. Art independent

Judiciary is one free from inappropriate outside influence. Individual Judicial Independence Institutional Judicial Independence

· '. . INDIVIDUAL . · , .'

JUD~CIAL · .

· ... ''INDEPENDENCE Focuses on each particular case and seeks to insure the ability of the judge to decide cases with autonomy and within the constraints of the law (In Re: The

Allegations Contained in the Columns of Macasaet Published in Malaya, A.M. No. 07· 09-13-SC, August 8, 2008).

vs. 3.

INSTITUTIONAL · .

JUDICIAL.

. ' ·.

INDEPEIVDENCk-: . · Focuses on the independence of the judiciary as a branch of the government and protects judges as a class (In Re: The

4.

Allegations Contained in the Columns of Macasaet Published in Malaya, A.M. No. 07· 09·13-SC, August 8, 2008).

•

:;

Q: In a civil case submitted for a decision, Judge Corpuz-Macandog acted based on a telephone call from government official telling her to decide the case in favor of the defendant, otherwise she will be removed. The judge explained that she did so under pressure considering that the country was under a revolutionary government at that time. Did the judge commit an act of misconduct?

J

NOTE: The treatment of independence as a single Canon is the primary difference between the new Canon 1 and the Canon 1 of the 1989 Code. '

A: YES. A judge must decide a case based on its merits. For this reason, a judge is expected to 'be fearless in the pursuit to render justice, to be unafraid to displease any person, interest or power, and to be equipped with a moral fiber strong enough to resist temptation lurking in her office. Here, it is improper for a judge to have decided a case based only on a directive from a government official and not on the judge's own ascertainment of facts and applicable law (Ramirez v. Judge Corpuz-

SECTION 1, CANON 1, NCJC 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.

165 L.

Independence from public officials - the public laid their confidence on the fact that the official is mentally and morally fit to pass upon the merits of their varied intentions. Independence from government as a whole- avoid inappropriate connections and any situation that would give rise to the impression of the existence of such inappropriate connections. Independence from family, social, or other relationshipsavoid sitting in litigation where a near relative is a part of or counsel; be independent from judicial colleagues (Sec. 2) and avoid such actions as may reasonably tend to wake the suspicion that his social or business relations constitute an element in determining his judicial course. Independence from public opinion- the only guide of the official is the mandate of law.

UN lVERSITY OF SA NT O TOMAS~ FACULTY OF CIVIL LAW

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JUDICI~L

ETHICS

Macandog, A.M. No. R-351-RTJ, September 26, 1986). Q: Mayor C was shot by B, the bodyguard of Mayor D, inside the court room of Judge Dabalos. Consequently, an information with no bail recommendation was filed against B and D. The murder case was then scheduled for raffle but before the scheduled date, the son of Mayor C, together with their counsel Atty. Llbarios, and other sympathizers staged a rally demanding immediate arrest of the accused. Judge Dabalos then issued an order without prior hearing directing • the issuance of a warrant of arrest against the accused, Did the judge commit an act of misconduct?

•

==================:---

Judges shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court or administrative agency. Principle of Subjudice (2007 Bar) Subjudice is defined as, "under or before a judge or court; under judicial consideration; undetermined" (Blb.ck's Law Dictionary, Sixth

Edition, 1990). The subjudice rule' restricts comments and disclosures pertaining to the judicial proceedings 'In order to avoid prejudging the issue, influencing the court, or obstructing the administration of justice (Marantan v. Diokno,

G.R. No. 205956, February 12, 2014). REASON: It is a traditional

conviction of civilized society everywhere that courts and juries, in the decision of issues of fact and law should be immune from every extraneous influence; that facts should be decided upon evidence produced in court; and that the determination of such facts should be uninfluenced by bias, prejudice or sympathies

A: YijS. The judge should not issue warrant of arrest without personally evaluating the resolution of the prosecutor and its supporting evidence to establish judicial probable cause (Sec.6, Rule 112, RRC). A judge In every case should endeavor diligently to ascertain the facts and the applicable law unswayed by partisan or personal interests, public opinion or fear of criticism. Here, the judge should not have allowed himself to be swayed into issuing a warrant of arrest (Libarios v. Judge Dabalos

(Nestle Philippines, Inc. v. Sanchez, G.R. No. 75209, September 30, 1987). Sub judice relates to contempt of court

A.M. No.RTJ-89·286,]uly 11, 1991).

While the Rules of Court does not contain a specific provision imposing the sub judice rule, it finds support in the provision on indirect contempt under Section 3, Rule 71 of the Rules of Court There must exist a "clear and present danger" to the administration of justice for statements or utterances covered by the sub judice rule to be considered punishable under the rules of contempt But "clear and present danger" does not apply in administrative cases. What applies in this administrative matter is the CPR and NCJC, which mandate the strict observance of the sub judice rule both upon members of the Bar and the Bench(Re: Show

SEC. Z, CANON 1, NC}C

In performing judicial duties, judges shall be independent from judicial colleagues in respect of decisions which the judge is obliged to make independently, Degree of independence· The highest degree of independence is required of judges. He must be independent in decision-making. He cannot consult with staff and court officials. However, he can ask colleagues purely academic or hypothetical questions but not to the extent of asking them to decide a case.

Cause Order in the Decision dated May 11, 2018 in G.R. No. 237428,A.M. No.18-06-01-SC,July 17, 2018).

Every judge must decide independently, even in collegial court. While there may be discussions and exchange of ideas among judges, the judge must decide on the basis of his own, sole, judgment (Funa,2009). NOTE: It is every judge's duty to respect the individual independence of fellow judges.

NOTE: Any attempt, whether successful or not, to influence the decision-making process of another judge, especially one who is of lower rank and over whom a judge exercises supervisory authority constitutes serious misconduct(NC]C Annotated, Phil]A).

SEC. 3, CANON 1, NC}C

SEC. 4, CANON 1, NCJC

-

('.)

UNIVERSITY OF SANTO GOLDEN NOTES

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166 •

QUALITIES Judges shall not allow family, social, or other relationships to influence judicial conduct or Judgment.

This section affirms the independence of the judiciary from the two other branches of government.

The prestfge 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.

NOTE: Judicial independence is the reason for leaving exclustvely to the Court the authority to deal with internal personnel issues, even if the court employees in question are funded by the local government (Bagatsing v. Herrera, G.R. No. L-34952,Ju(y 25, 1975).

Purpose Q: Several employees of the city government of Quezon City were appointed and assigned at the office of the Clerk of Court-MeTC QC to assist the organic staff of the judiciary. However, the executive judge of MeTC QC, in view of a reorganization plan, returned those employees to different offices of QC government saying that the court was already overstaffed. The judge also requested the QC Mayor to re-employ the laid off employees. Did the judge commit any improper conduct?

It is intended to ensure that judges are spared from potential influence of family members by disqualifying them even before any opportunity for impropriety presents itself(NC]C Annotated, Phi/]A). The term "judge's family" includes: 1. 2. 3. 4. 5. 6. 7.

Judge's spouse Son/s Daughter/s Son/s-in-law Daughter/s-in-law Other relatives by consanguinity or affinity within the sixth civil degree, or Any person who is a companion or employee of the judge and who lives in the judge's household (NC]C Annotated, Phil]A).

W~en the judge is related to one of the parties within the sixth degree of consanguinity or affinity, a judge's disqualification to sit in a case is mandatory. NOTE: Judges should ensure that their family members, friends and associates refrain from creating the impression that they are in a position to influence the judge. Judges should, therefore, at all times remind themselves that they are not in the Judiciary to give out favors but to dispense justice. They should also make it clear to the members of their family, friends and associates that they will neither b~ influenced by anyone, nor would they allow anyone to interfere in their work. SEC. S, CANON 1, NC]C 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.

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A: YES. An executive judge has no authority to cause the transfer of court employees as the jurisdiction to do so is )lodged solely upon the Supreme Court througb' the Office of the Court Administrator. This is so because of the need to maintain judicial independence. Moreover, a ' Judge shall be free from inappropriate connections with and influence from the executive and legislative branch. Here, the judge did not act independently of the LGU when she asked the Mayor of QC to re-employ the displaced employees instead of informing the SC through the OCA of the need to streamline her court of its personal needs (Alfonso v. Judge Alonzo-Legasto, A.M. No. M17 94-995, September 5, 2002). Q: Judges of the first and second level courts are allowed to receive assistance from the local government units where they are • · stationed. This- assistance could be in the form of equipment or allowance. Justices at the Court of Appeals in the regional stations in the Visayas and Mindanao are not necessarily residents thereof, hence, they incur additional expenses for their accommodations. Pass on the propriety of the justices' receipt of assistance/allowance from the local governments. (2010 Bar)

A: Section 5, Cannon 1 of the New Code of Judicial Conduct for the Philippine judiciary provides that Judges shall be free from inappropriate connections with, and influence

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JUDICIAL by, the executive branch, and must appear to be free therefrom to a reasonable extent It is a common perception that the receipt of allowances or assistance from a local government unit may affect the judge's ability to rule independently in cases involving the said unit.

public positions and demean the institution to which they belong, In-whatever atmosphere or environment they may happen to be (NC]C Annotated, Phil]A). Q: Palma and Mercado

sent e-mails to Supreme Court regarding an alleged marriage scams in Davao City-among which is the matrimony of a certain Echeverria. According to Echeverria, his marriage was solemnized by Judge Omelio in his house and as proof, Echeverria presented pictures of his wedding. However, in the marriage certificate, the solemnizing officer was Judge Murcia and the same was done in Island Garden, City of Samal. Judge Omelia explained that he was merely invited to a dinner and the Echeverrias requested him to reenact the wedding for the picture taking; while Judge Murcia claimed that he solemnized the subject marriage on February 28, 2008 at about 5:30 in the afternoon in his courtroom and that the contracting parties, as well as their witnesses appeared before him. Are Judge Omello and Judge Murcia administratively liable?

SEC. 6, CANON 1, NC]C 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. The act of a judge in meeting with litigants outside the office premises beyond office hours violate the standard of judicial conduct required to be observed by members of the Bench (Tan v. Judge Rosete,A.M. No. MTJ-04· 1563, September8, 2004). It is desirable that the judge should, as far as reasonably possible, refrain from all relations which would normally tend to arouse suspicion that such relations warp or bias his judgment and prevent an impartial attitude of minds in the administration of judicial duties. Judges should not fraternize with litigants and their counsel; they should make a conscious effort to avoid them in order to avoid the perception that their independence has been compromised (Tan v. Judge Rosete, A.M. No. MTJ-04-1563,September 8, 2004).

SEC. 8 CANON 1, NCJC Judges shall exhibit and promote high standards of Judicial conduct in order to reinforce public confidence in the judiciary, which ls fundamental to the maintenance ofJudicial independence. 1

NOTE: Sections 7 and 8 of Canon 1 are intended to serve as catch-all provisions for all other acts that would guarantee the independence of the judiciary. There can be no sure guarantee of judicial independence than the character of those appointed to the Bench.

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CANONZ INTEGRITY IS ESSENTIAL NOT ONLY TO THE PROPER DISCHARGE OF THE JUDICIAL OFFICE, BUT ALSO TO THE PERSONAL DEMEANOROF JUDGES.

Judges must remain conscious of their character and reputation as judges and should avoid anything which will not dignify their

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A: YES, they are liable. Judge Murcia affixed his signature in the Marriage Contract of Julius and Khristine Echeverria without actually solemnizing their marriage. Judge Murcia's claim that the contracting parties personally appeared before him was belied by the groom himself. Meanwhile, Judge Omelio's contention that he merely re-enacted the wedding ceremony upon the request of the groom's parents was similarly debunked by Echeverria's admission that it was actually Judge Omelio who solemnized his marriage at his home in Davao City. Besides, his defense of reenactment would riot justify his infraction. As a duly-authorized solemnizing officer, Judge Omelia is expected to know that marriage should not be trifled with, and its sanctity and inviolability should never be undermined, especially by such a lame ground as picturetaking (Ms. Palma etc. v. Judge Omelia, A.M. No. RTJ-10·2223,August 30, 2017).

SEC. 7, CANON 1, NC]C 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.

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QUALITIES A judge should act with integrity and behave with integrity at all times so as to promote public confidence in the integrity of the judiciary [Torcende v. Judge Sardido, A.M. No. A judge should personify judicial Integrity and exemplify honest public service. The personal behavior of a judge, both in the performance of official duties and in private life should be above suspicion (Sison-Barias v, judge Rubia,

with other people, to preserve the court's good name and standing. The image of a court of justice is mirrored in the conduct, official and otherwise, of the personnel who work thereat, from the judge to the lowest of its personnel. Court personnel have been enjoined to adhere to the exacting standards of morality and decency in their professional and private conduct in order to preserve the good name and integrity of the courts of justice (OCA v. Court Interpreter Ill Ampong, A.M. No. P-13-

A.M. No. RT]-14-2388,June 10, 2014)

3132,June 4, 2014, PERLAS-BERNABE).

By the nature of the bench, Judges, more than the average man, are required to observe an exacting standard of morality and decency. The character of a judge is perceived by the people not only through his official acts but also through his private morals as reflected in his external behavior. It is therefore paramount that a judge's personal behavior both in the performance of his duties and his dally life, be free from the appearance of impropriety as to be beyond reproach (De la Cruz v. Judge

The sacrosanct image! pf a court dispensing justice is mirrored in i~ very own personnel {OCA v. Court Stenographer Ill Capistrano, A.M.

MT]·99-1238,January

24, 2003).

No. P-13-3147,July 2, 2014, PERLAS-BERNABE). I

Those in the Judiciary · serve as sentinels of justice, and any act of impropriety on their part immeasurably affects the honor and dignity of the Judiciary and the people's confidence In It The Institution demands the best possible individuals in the service and it had never and will never tolerate nor condone any conduct which would violate the norms of public accountability, and diminish, or even tend to diminish, the faith of the people in the justice system ljudge Lagado and Empuesto v. Clerk 11 Leonida, A.M. No. P-14-3222, August 12,

Bersamira, A.M. No. RTJ·00-1567. January 19, 2001).

NOTE: Under the 1989 Code, the values of INTEGRITY and INDEPENDENCE were grouped together, but the New Code of Judicial Conduct separated them to emphasize the need to maintain a life of PERSONAL and PROFESSIONAL INTEGRITY in order . to properly carry out their judicial functions. Presumption

2014, PERLAS-BERNABE).

NOTE: A judge's personal behavior, both in the performance of his duties and in his daily life, must be free from any appearance of impropriety in all activities as to be beyond reproach.

regarding judges

Judges are presumed honest and men of integrity, unless proven otherwise {People v. Bocar, G.R. No. L-9050,July30, 1955). SECTION 1, CANON2, NC]C JudfJes 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. The maintenance of the court's integrity is not the sole duty of the judge. It is also the duty pf court personnel to see to it that its integrity is unblemished.

•

REASON: Respondents act discloses a deficiency in prudence and discretion that a member of the Judiciary must exercise in the performance of his official functions and of his · activities as a private individual. It is never • trite to caution respondent to be prudent and circumspect in both speech and action, keeping in mind that her conduct in and outside the courtroom is always under constant observation (Perfecto v. Judge Desales-Esidera, A.M. No. R1J-11·2270,January31,

2011).

Q: Justice B of the CA was a former RTC Judge. A case which he heard as a trial judge was raffled off to him •. The appellant sought his disqualification from the case but he refused on the ground that he was not the judge who decided )he case as he was . already promoted to the appellate court before he could decide the case, Was the

Every employee of the Judiciary should be an example of integrity, uprightness, and honesty. Like any public servant, they must exhibit the highest sense of honesty and integrity not only in the performance of their official duties but also in their personal and private dealings

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JUDICIAL ETHICS refusal of Justice B to recuse from the case proper7 (2014 Dar)

introduced to Justice Davide as his living partner. Should the judge be disciplined7

A: Justice B's refusal to recuse is not proper.

A: YES. The Code of Judicial Conduct requires a judge to be the embodiment of integrity, and to avoid appearance of impropriety in all activities. Here, Judge Marcos' conduct of flaunting his mistress is a conduct unbecoming of a judge. By living with a woman other than his legal wife,. Judge Marcos has demonstrated himself to be wanting in integrity, thus, unfit to remain In office and continue discharging the functions of a judge (Re: Complaint of Marcos

After hearing the evidence during the trial when he was still a judge, he has personal knowledge of the disputed evidentlary facts concerning the proceedings. The standard under the New Code of Judicial Conduct on the inability of Justice 8 to decide the matter impartially is not in him but the appearance of the dlsqualitlcatlon of Justice D to a reasonable observer that he is unable to decide the matter Impartially. The conduct of a judge/justice should not only be above reproach but it should be also perceived to be so in the view of a reasonable observer (Canon 2, NC]C).

and Her Children against Judge Marcos, A.M. No. 97·2·53 RTC,July 6, 2001). Judges must always wear their robes at hearings

Q: A · complaint was filed against Judge Mantua for improper use of his sala, because he turned it into his residential and dwelllng place, and for immorality, because he engaged. in an extramarital affair with his mistress. Testimonies of Mah-Arevalo and Nunez demonstrated how Judge Mantua paraded his mistress in full view of his colleagues, court personnel, and even the general public by bringing her to fiestas and other public places. Can Judge Mantua be administratively liable?

A judge must take care not only to remain true to the high ideals of competence and integrity his robe represents, but also that he wears one in the first place (Chan v. Judge Majaducan A.M.

No. RTJ-02·1697, October 15, 2003). Q: After being ·.diagnosed with stress dermatitis, Judge Rosalind, without seeking permission from. the Supreme Court, refused to wear 'her robe during court proceedings. When her attention was " called, she explained that whenever she wears her robe she is reminded of her heavy caseload, thus making her tense.

A: YES. SC Administrative Circular No. 3·92

explicitly states that the Halls of Justice may only be used for functions related to the administration of justice and for 110 other purpose. Similar thereto, Section 3, Part I of A.M. No. 01 ·9·09-SC also provides for similar restrictions regarding the use of the Halls of justice. Judge Mantua used his chambers in the Hall of Justice as his residential and dwelling place, Further, Judge Mantua is guilty of

This, In turn, triggers the outbreak of skin rashes. Is Judge Rosalind Justified in not wearing her judicial robe? Explain. (2009 Bar)

Q: Judge Ferdinand Marcos of RTC Cebu ls

A: Judge Rosalind is not justified. In Chan v. Majaducon, the Supreme Court emphasized that the wearing of robes of judges, as required by A.C. No. 25, dated June 9, 1989, serves the dual · purpose of heightening public consciousness on the solemnity of judicial proceedings and in impressing upon the judge the exacting obligations of his office. The robe Is part of the judge's appearance and is as important as a gavel. The Supreme Court added while circumstances, such as medical condition claimed by the respondent judge, may exempt one from complying with AC No. 25, the judge must first secure the Court's permission for such exemption.

married to Rotilla with whom he begot 2 children. However, during a Fun Run sponsored by Philippine Judges Association (PJA), Judge Marcos appeared with a woman other than his wife whom he even

The behavior and conduct of judges must reaffirm the people'sfaith in the integrity of theJudiciary.

Immorality. It was adequately proven that judge Mantua engaged in an extramarital affair with his mistress, which is not onlya violation of the moral standards expected of the members and employees of the judiciary but is also a desecration of the sanctity of the institution of marriage which the Court abhors and is, thus, punishable {Mah-Arevalo v. Judge

Mantua, A.M. No. RTJ-13·2360, November 19, 2014, PERLAS-BERNABE).

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• UNIVERSl1'Y OF SANTO TOMAS 2019 GOLDEN NOTES

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QUALITIES Justice must not merely be done, but must also be seen to be done.

SEC. 3, CANON 2, NC]C

Judges should take or initiate appropriate disciplinary measures against lawyers or court personnel for linprofessional conduct of which the judge mi:,'y have become aware. A judge may summarily punish any person including lawyers anti court personnel, for direct contempt for misbehavior committed in the presence of or so near a court or a judge as to obstruct or interrupt the proceedings before the same (Rule 71, RRC).

A judge has the duty to not only render a just and impartial decision, but also render it in such a manner as to be free from any suspicion as to its fairness and impartiality, and also as to the judge's integrity. While judges should possess proficiency in law in order that they can construe and enforce the law, it is more important that they should act and behave in such a manner that the parties before them should have confidence in their impartiality [Sibayan-Joaquin v. judge Javellana, A.M. No. RTJ·OO·l 601, November 13, 2001). In pending or prospective litigations before them, judges should be careful to avoid anything that may tend to awaken the suspicion that their personal. social or sundry relations could influence their objectivity (Sibayan-Joaquin v judge. Javellana. A.M. No. R71·00·1601, November 13, 2001). Q: Justice Mariano Del Castillo was charged with plagiarism, twisting of cited materials, and gross neglect in connection with the decision he wrote for the court in Vinuya v. Romulo. Petitioners, members of the Malaya Lolas Organization, seek reconsideration of the decision of the Court dated October 12, 2010 that dismissed the said complaint. Petitioners claim that the Court has by its decision legalized or

He may also punish any person for indirect contempt after appropriate charge and hearing, for acts enumerated under Section 3 Rule 71 of the Rules of Court 1

Judge's duty employees

with

respect

to

court

A judge should constantly keep a watchful eye on the conduct of his employees. His constant scrutiny of the behavior of his employees would deter any abuse on the part of the latter in the exercise of their duties (Buenaventura v. judge Benedicto, A.C. No. 137-5, March 27, ~ 1971).

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A judge cannot dismiss court personnel. The

power to dismiss a court employee is vested in the Supreme Court (Dailay-Papa v. Judge Almora, A.M. Nos. 543-MC and 1525-MJ, December 19, 1981). NOTE: Judges should not be lenient in the administrative supervision of employees. As an administrator, the judge must ensure that all court personnel perform efficiently and promptly in the administration of justice (Ramirez v. Judge Corpuz-Macandog, A.M. No. R. 351-RTJ, September 26, 1986),

approved of the commission of plagiarism· in the Philippines. Should the respondent. justice be held guilty for plagiarism:' A: NO. A judge writing to resolve a dispute, whether trial or appellate, is exempted from a charge of plagiarism even if ideas, words or phrases from a law review article, novel thoughts published in a legal periodical or language from a party's brief are used without giving attribution. Thus, judges are free to use whatever sources they deem appropriate to resolve the matter before them, without fear of reprisal. This exemption applies to judicial writings intended to decide cases for two reasons: the judge is not writing a literary work and, more importantly, the purpose of the writing is to resolve a dispute. As a result, judges adjudicating cases are not subject to a claim of legal plagiarism (In re: charges A.M. No. 10·7-17-SC of the plagiarism etc, against Associate Justice Del Castillo, Feb 8, 2011).

All court personnel., from the lowliest employees to the clerk1 of court, are involved in the dispensation of(1ustice like judges and justices, and parties seeking redress from the courts for grievances lqok upon them also as part of the judiciary. In performing their duties and responsibilities, court personnel serve as sentinels of justice, that any act of impropriety they commit immeasurably affects the honor and dignity of the judiciary and the people's confidence in the judiciary. They are, therefore, expected to act and behave in a manner that should uphold the honor and dignity of the judiciary, if only to maintain the people's confidence in the judiciary Oudge Guerrero v. Ong, A.M. No. P-09-2676, December 16, 2009).

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JUDICIAL ETHICS Q: While Judge Tuparin was in hfs chambers dictating an order to a stenographer, two lawyers who were in the courtroom waiting for the start of the session almost came to blows as a result of a heated argument, Tuparln came out of his chambers and after ldentlfylug the lawyers involved fn the commotion promptly declared them -ln contempt of court. Was the action of Judge Tuparin proper?

CANON3 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. Principle of cold neutrality of an impartial judge

A: NO. The act committed by the two lawyers was indirect contempt violative of the rule punishing "any improper conduct tending directly or indirectly, to impede, obstruct, or degrade the administration of justice", since the judge was then engaged in dictating an order before the morning session was called. The act of the two lawyers constituted obstruction of the administration of justice, which was indirect contempt Accordingly, they could only be punished after notice and hearing,

While a judge should possess proficiency in law in order that he can competently construe and enforce the law, it is more important that he should act and behave in such a manner that the parties before him should have confidence in his impartiality. Thus, it is not enough that he decides cases without bias and favoritism. Nor is it sufficient that he in fact rids himself of prepossessions. Hi~ actuations should moreover inspire that belief (Rosaura v. Judge Villanueva Jr., A.M. No. RTJ-99-1433, June 26, 2000).

Qi A complaint against Judge Melo was filed for violating the NCJC and for gross ignorance of the law. It was alleged that he solemnized marriages without the required marriage license. He instead notarized affidavits of cohabitation and issued them to the contracting parties. He notarized these affidavits on the day of the parties' marriage. It was argued that affidavits of cohabitation are not connected with a judge's official functions and duties as solemnizing officer. Will the complaint prosper?

NOTE: A judge has both duties: the duty of rendering a just decision; and, doing it in a manner free from suspicion as to his fairness and as to his integrity (Query of ExecutiveJudge Estradaon the conflicting views of RTC-Judges Masadao And Elizaga Re: Criminal Case No. 4954-M, A.M. No. 87-9-3918-RTC, October 26, 1987). SEC. 1, CANON 3, NC]C

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

A: YES. Judge Melo notarized affidavits of cohabitation, which were documents not connected with the exercise of his official functions and duties as solemnizing officer. He also notarized affidavits of cohabitation without certifying that lawyers or notaries public were lacking in his court's territorial jurisdiction, thus he violated Circular No. 1-90. Further, Judge Melo violated NCJC provisions on integrity since it is well-settled that if the law involved is basic, Ignorance constitutes "lack of integrity," Violating basic legal principles and procedure nine times is gross ignorance of the law (Tupa/ v. Judge Rojo, A.M. No. MTJ-14-1842, February 24, 20.14).

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It is the duty of all judges not only to be impartial but also to appear impartial. A judge must exercise prudence and restraint and should reserve personal views and predilections to himself so as not to stir up suspicions of bias and unfairness (OCA V. Judge Floro, tr. A.M. No. RTJ-99-1460, March 31, 2006).

Degree of proof required to prove bias on the part of the judge The complainant must prove the same by clear and convincing evidence since allegations of bias are quite serious. Mere allegations are not sufficient to constitute a violation of the rule. Bias and prejudice cannot be presumed and mere suspicion of partiality is not enough (Lorenzana v. judge A.ystria, A.M. No. RT]-09· 2200, April 2, 2014). :i~

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Q: A filed an action for specific performance with the RTC of Quezon City, presided by Judge Santiago, against X Corporation asking for the delivery of the title of 1 subdivision lot in Batangas which lot was given to him in payment for his services as geodetic surveyor. Meanwhile X Corporation filed with MTC of Batangas an action for an unlawful detainer against certain lot buyers on motion of A. Judge Santiago issued TRO against X Corporation and the Judge of MTC and enjoining the latter from proceeding with the case. X Corporatiou now filed a motion to inhibit the judge on the ground that he arbitrarily issued such TRO, but without presenting evidence showing partiality on the part of the judge. Should the judge be inhibited? A: NO. For a judge to be inhibited, allegations of partiality and pre-judgment must be proven by clear and convincing evidence. Here, mere allegation that the judge arbitrarily issued the TRO without presenting evidence showing bias on his part is not sufficient. While Judge Santiago ac.:ted in excess of his jurisdiction when he issued the TRO for such should only be enforceable within his territorial jurisdiction, such error may not necessarily warrant inhibition, at most it is correctible by certiorari (Dimo Realw &Development, Inc. v.

conduct observed by the judge, such opinion even if later found to be erroneous on appeal or made with grave abuse of discretion on certiorari -will not necessarily prove personal bias or prejudice on the part of the judge. To allow inhibition for such reason would open floodgates to abuse (Gochan v. Gochan,G.R. No. 143089, February 27, 2003). SEC. 2, CANON 3, NCJC

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. Rationale No judge should handle a case in which he might be perceived, rightly or wrongly, to be susceptible to bias and impartiality. His judgment must not be tainted by even the slightest suspicion of improbity or preconceived interest The rule is aimed at preserving at all times the faith and confidence in courts of justice by any party to the litigation [Urbanes, Jr. v. C.A., G.R. No. 117964, March 28,

•

2001).

There ls undue interference where the judge's participation in the conduct of the trial tends to build or to bolster a case of one of the parties (Ty v. Banco Filipino; Savings and Mortgage

Dimoculanqan, G.R. No. 130991, March 11,

2004). Extra-judicial source rule

Bank, CA and Hon. Tac,-an G.R. Nos. 149797-98, February 13, 2004). ;

In American jurisprudence, it means that the decision is based on some influence other than the facts and law presented in the courtroom (Carter v. State, 271 S.E.2d 475, September 10,

Q: Banco Filipino filed a complaint

for reconveyance of property against Ty and Tala Realty Services Corp. which was dismissed on the ground of lack of jurisdiction. However, on motion for reconsideration filed by Banco Filipino, the case was reinstated and the judge even relieved Banco Filipino from its obligation to prove service of its motion for reconsideration and presumed actual receipt of the same by the other party. Thereafter, the judge directed the Ty and Tala to present certain documents despite failure of Banco Filipino to tender the costs for such production and inspection. Did the judge commit any improper conduct?

1980). Q: A motion to inhibit Judge Dicdican was

filed on the ground of partiality and bias on his part for allegedly denying a motion to hear affirmative defenses, thereby denying the movant the opportunity to be heard. Should the judge be inhibited? A: NO. Judge Dicdican cannot be charged with bias and partiality, merely on the basis of his decision not to grant a motion for a preliminary hearing. Allegations and perceptions of bias from the mere tenor and language of a judge are insufficient to show pre-judgment. Moreover, as long as opinions formed in the course of judicial proceedings are based on the evidence presented and the

A: YES. A judge may not be legally prohibited from sitting in litigation, but when circumstances appear that will induce doubt as to his honest actuations and probity in favor of

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JUDICIAL either party, or Incite such state of mind, he should conduct a careful self-examination. He should exercise his discretion in a way that the people's faith tn the courts of justice is not impaired. The better course for the judge under such circumstances is to disqualify • himself. That way, he avoids · being misunderstood; his reputation for probity and objectivity is preserved. What is · more important is that the ideal of impartial administration of justice is lived up to. Here, the judge, by assuming actual receipt by the respondents of proof of service of the motion for reconsideration, absolving Banco Filipino from paying the expenses of production of documents, and suggesting to Banco Filipino what evidence to present to prove its case, transgressed the boundaries of impartiality. Thus, the judge should inhibit himself (Ty v. Banco Filipino Savings and Mortgage Bank, et Al., G.R. Nos.149797-98, February 13, 2004).

case, a judge should avoid appearing like an advocate for either party. It is also Improper for the judge to push actively for amicable settlement against the wishes of the complainant. A judge's unwelcome persistence makes the judge vulnerable to susprcions of favoritism NOTE: In disposing of a criminal

ETHICS when all judges will be disqualified as a result, it will not be permitted to destroy the only tribunal with the power in the premises. The doctrine operates on the principle that a basic judge is better than no judge at all. It is the duty of the disqualified judge to hear and 'decide the case regardless of objections or disagreements (Paraynov. Meneses, G.R. No. 112684, April 26 1994). ,:

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SEC. 4, CANON.3, NCJC

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.

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Reason for the rule This section warns judges against making any comment that might reasonably be expected to affect the outcome of the proceedings before them; or those that the judge may later decide but not yet before him; or "impair the manifest fairness of the process."

(Montemayor v. Judge Bermejo, Jr.,A.M. No.MT]· 04-1535, March 12, 2004).

A judge's language, both written and spoken,

SEC. 3, CANON3,NCJC

must be guarded and measured, Jest the best of intentions , be misconstrued (Fecundo v.

Judges shall, so far as ls reasonable, so conduct themselves as to mintmize the occasions on which It will be necessary for them to be disqualified from hearing or decidingcases.

Berjamen, G.R. No. 88105, December 18, 1989).

Q: After the pre-trial of a civil case for replevln, Judge D advised B's counsel to settle the case because according to Judge D, his initial assessment of the case shows that B's evidence is weak.

Meaning of "duty to sltff It means that a judge must ensure that he will

not be unnecessarily disqualified from a case

a. Did Judge D commit an act of improprlety? Explain , b. What remedy or remedies may be taken by B's lawyer against Judge D? Discuss Fully. (2014 Bar)

(Agpa/o, 2009).

A judge cannot inhibit himself as he pleases. A decision to inhibit must be based on good, sound or ethical grounds, or for just and valid reasons. It is not enough that a party cast some tenuous allegations of partiality at the judge

A: a. YES; Judge D violated Canon 3 of the NCJC. He should not make any comment· that might reasonably beexpected to affect the outcome of the proceedings or impair the manifest fairness of the process. b. B's lawyer can file a motion for the disqualification of the Judge under Canon 3 for bias or prejudice based on the appearance of the comment to a

(Cruz v. Mijares, G.R. No.154464, September 11, 2008).

Rule of necessity It states that a judge is not disqualified to sit in

a case where there is no other judge available to hear and decide the case. Furthermore, fi--w\

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reasonable observer. A pre-tnal is not yet

therefore, should refrain from making '' comment on a pending case. There is danier. not only of bemg misquoted, but also of,

the complete and exhaustive · presentation of evidence of the parties.

compromising the rights of the litigants in the ' \. case(Castillo v. Juan, G.R. No. L·39516-17, .,. January 28, 1975).

Q: Justice Antonio Carpio penned a decision

regarding the invalidity of the amended joint venture agreement between Public Estates Authority (PEA) and Amari Coastal Bay Development Corporation saying that the agreement is unconstitutional as PEA cannot transfer ownership of a reclaimed land to a private corporation. Amari now filed a motion to inhibit Justice Carpio on the ground of bias and pre-judgment allegedly because he had previously written in his column in Manila Times a statement to the effect that the law required public bidding of reclaimed projects and that the PEA-Amari contract was flawed for it was not bid by the PEA, Decide on the motion.

SEC. S,

2.

3.

.. l

(a) The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings; >'; (b) The judge or 'member of his or her family, has an economic interest in the outcome ,; of the matter in

A: The motion to inhibit must be denied· for three reasons: 1.

CANON 3, NC}C

Judges shall disqualify themselves from participating in any proceeding in which they are unable to decide the matter impartially or in which it may appear ta a reasonable observer that they are unable to decide the matter impartially. Such proceedings include, but are not limited to instances where:

The motion to inhibit must be denied if filed after a member of the court had already rendered his opinion on the merits of the case. Here, the motion was filed after Justice Carpio had already rendered a decision; The ratio decidendi of the decision was not based on his statements on the column. Here, the decision was based on constitutional grounds and not in the absence of public bidding; and Judges and justices are not disqualified from participating in a case just because they have written legal articles on the law involved in the case (Chavez v. PEA, G.R. No. 133250, May 6, 2003).

•

I

co,1 troversyt (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

No absolute prohibition against judges from making comments Not all comments are impermissible. Judges may express their open-mindedness regarding a pending issue in cases where the judges' comments do not necessarily favor one side over the other. What is equally important is that he should avoid any conduct that casts doubt on his impartially (Castillo v. Juan, G.R. No. L-39516·17,January 28, 1975).

However, judges should avoid side remarks, hasty conclusions, loose statements or gratuitous utterances that suggest they are prejudging a case. Judges should be aware that the media might consider them a good and credible source of opinion or ideas, and, ·~~~~~~~~~~~~~~~~~~~~~~~-

175

UNIVERSITY OF SANTO TOMAS¢ FACULTY OF CIVIL LAW ... ,I

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JUDICIAL substantially affected by outcome of the proceedings

ETHICS

the

(Hurtado v. Judajena, G.R. No. L-40603, July 13, 1978).

7. The judge is not wholly free, disinterested, • impartial and independent (Garcia v. Judge De la Pena. A.M.No.MTf ·92-637, February 9,

The phrase "any proceedtnq" includes, but is not limited to instances where:

1994).

1.

The rule also requires disqualification if a judge has outside knowledge of disputed facts. To be a ground for disqualification, the knowledge must have been obtained extra-judicially like out-of-court observations. This prohibition also disallows extra-judicial research on the internet; 2. The judge previously served as a lawyer or was a material witness in the matter in controversy (Sec S(b), Canon 3, C]CJ; 3. A judge may be disqualified if he was formerly associated with one of the parties or their counsel; 4. A Judge who previously notarized the affidavit of a person to be presented as a witness in a case before him shall be disqualified from proceeding with the case; 5. A municipal judge who filed complaints in his own court for robbery and malicious mischief against a party to protect the property interests of the judge's co-heirs, and then issued warrants of arrest against the party, was found guilty of serious misconduct and ordered dismissed from the bench before he was able to rescue himself (Oktubre v. Judge Velasco A.M. No.

Q: When Atty. Rojas was appointed as a judge, he inherited a criminal case in which he acted. as prosecutor. He explained that his delay in inhibiting himself from presiding on that case was because it was only after the belated transcription of the stenographic notes that he remembered that he handled that case. He also said that the counsels did not object and he never held "full-blown" hearings anyway. Should Judge Rojas be reprimanded? A: YES. The Rules of Court prevents judges from trying cases where they acted as counsel "without" the consent of the parties. This prevents not only a conflict of interest but also the appearance of impropriety on the part of the judge. Here, the judge should not have taken part in the proceeding as his impartiality will naturally be questioned considering that he previously handled the case as prosecutor. He should administer justice impartially & without delay. The prohibition does not only cover hearings but all judicial acts (e.g. orders, resolutions) some of which, Judge Rojas did make (Re: Inhibition o_fj11dge Rojas, A.M. No. 98· 6-185-RTC, Occober30, 1998).

MTJ-02-02-1444,July 20, 2004);

6. The restriction extends to judges who served as lawyers in closely related cases;

Q: Judge Mijares was charged with grave misconduct for taking cognizance and deciding a special proceeding for correction of entry in the r.ecord of her grandson, notwithstanding such relationship. It was also alleged that the judge dispensed with the publication requirement in said proceeding. In her answer, Judge Mijares contended that the prohibition provided for under the Code did not apply to special proceedings which are not controversial in nature and that she does not have any pecuniary interest in the case. Is the contention correct?

An associate justice of the Court of Appeals refused to Inhibit himself from reviewing the decision in a case which he had partially heard as a trial judge prior to his promotion, on the ground that the decision was not written by him. The Supreme Court upheld his refusal, but nevertheless commented that he "should have been more prudent and circumspect and declined to take on the case owing to his earlier involvement in the case". The Court has held that a judge should not handle a case in which he might be perceived, rightly or wrongly, to be susceptible to bias and prejudice (Sandoval v. CA, G.R. No. 106657,August 1, 1996).

A:NO. A judge who is related to a party within the 6th degree of consanguinity is mandated to inhibit himself from hearing the case "notwithstanding lack of pecuniary interest in the case". This is so because lack of such interest does not mean that she can already be free from bias and partiality in resolving the

NOTE: A preliminary Injunction Issued by a judge in favor of his sister before inhibiting himself was found reprehensible {:•.-)

UNIVERSITY

\."'.:,

2019

OF SANTO

GOLDEN

NOTES

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•

TOMAS

176 .j

QUALITIES Madrid v. Atty. Dea/ca, A.C. No. 7474, September 09, 2014).

case by reason of her close blood relationship (Villaluz v. Judge Mijares, A.M. No. RT] ·98·1402 288, April 3, 1998).

Grounds for mandatory disqualification Degree of compliance required by the rule under Rule 3.05 ofNCJC

1.

Strict compliance of the rule is required

to protect the rights of the parties, to assure an impartial administration of justice, and to prevent erosion of the people's confidence in the judiciary (Marfil v. Judge Cuachon, A.M. No. 2360-MJ, August 31, 1981).

SEC, 6, CANON 3, NCJC A judge disqualifted as stated above may, instead of withdrawing from the proceeding, dtsciose 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 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. Types of disqualification 1. Mandatory or compulsory disqualification 2. Voluntary disqualification or inhibition Disqualification vs. Inhibition DISQUALIFICATION There are specific grounds enumerated under the rules of court for disqualification. The judge discretion; manda:..:t.::.:or:...:·v

has

no

INHIBITION

· :

The rule only provides broad basis for inhibition.

2. 3.

4.

When he, or his wife, or child is pecuniarily interested as heir, legatee, creditor, or otherwise; When he is related to either party within the 6th degree of consanguinity or affinity or to counsel within the 4th civil degree; When he has been· an executor, guardian, administrator, trustee, or counsel; or When he has presided in an inferior court where his ruling decision is subject to review, without the' written consent of the parties (Rule 137, RRC).,

or

Q: In a verified complaint, Kathy said that Jud!;~ Florante decided a petition for , correction of entry involving the birth record of her grandson, Joshua, who happened to be child of Judge Florante's daughter, Pilita. Judge Florante insisted that he committed no wrong since the proceeding was non-adversarial and since it merely sought to correct an erroneous entry in the child's birth certificate. Is Judge Florante liable? (2011 Bar)

•

A: YES. Sec. 5, Canon 3 provides that: "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: "x» 6. The judge is related by consanguinity or affinity to a party litigant

within the 6th civil degree or to counsel within the fourth civil degree." This is considered as a MANDATORY INHIBITION. Strict compliance with the rules on disqualification is required. Inhibition

The rule leaves the matter to the judge's -1.. .:s:.. :oc.::u:.:. ;n.;;.;;d.. :;;d""is~c;.::.:re:..:t::..:io:..::;n:.. _. _ __,

It is an act when .a judge personally prevents himself from taking cognizance of the case. This is made through a written petition to inhibit which shall state the grounds for the same. The explanation of the judge whether or not to take cognizance of the case must also be in writing (Rule 3.12, Ca11on 3, C]C). •. ,

The right of a party to seek the inhibition or disqualification of a judge who does not appear to be wholly free, disinterested, impartial and independent in handling the case must be balanced with the latter's sacred duty to decide cases without fear of repression. Thus, it was incumbent upon a lawyer to establish by clear and convincing evidence the ground of bias and prejudice in order to disqualify a Judge from participating in a particular trial Uudge

'

If the judge inhibits '.::himself from taking cognizance of the cases the same cannot be appealed. However, the judge should not immediately inhibit himself. He should make a

177

UNIVERSITY OF SANTO TOMAS~ FA CUL TY OF CIVIL LAW ...

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JUDICIAL ETHICS • careful examination by first taking into

Q: Judge C1int Braso ls hearing a case

consideration the following:

between Mr.. Timothy and Khrlstopher Company, a company where his wife used to work as one of its Junior Executives for several years. Doubting the impartiality of the Judge, Mr. Timothy filed a motion to inhibit Judge CJint Braso. Judge Clint Brase refused on the ground that his wife has long resigned from the company. Decide. (2014 Bar)

1. 2.

consideration - whether the people's faith in the judicial system wiil be impaired Special consideration -He must reflect on the probability that the losing party will nurture at the back of his mind that he tilted the scale of justice General

Vo]untary inhibition of a judge The judge may In his discretion inhibit himself, for just and valid reasons other than the grounds for mandatory disqualification. The rule on voluntary disqualification or inhibition is discretionary upon the judge on the basis of his conscience (Kilosbayan Foundation and

A: The matter of inhibition is addressed to the judicious discretion of the judge; hence, only he can examine is his conscience if he can answer to the call of cold neutrality. Time to file the petition to disqualify a judge

BantayKatarungan Foundation v. Leoncio M. [anoto.Ir; G.R. No.180543,July 27, 2010).

It must be filed befo: e rendition of the judgment and it cannot be raised on appeal. Otherwise, the parties are deemed to have waived any objection regarding the impartiality of the judge (Government vs. Heirs of Abella, G.R.

This leaves the discretion to the judge to decide for himself questions as to whether he will desist from sitting in a case for other just and valid reasons with only his conscience to guide him, unless he cannot discern for himself his inability to meet the test of cold neutrality required of him, in which event the appellate court will see to it that he disqualifies himself

No. 25009, September B, 1926). Q: Judge

Nacy personally witnessed a vehicular accident near his house. Later, the Reckless Imprudence case was raffled to his sala, Is there a valid ground for his inhibition? {2012 Bar)

(Castillo v. Juan, G.R. Nos. L-39516-17, January 28, 197S,· Paredes v. Abad, G.R. Nos. l,-36927-28, April 15, 1974)

A: YES, under Canon 3, Sec. 5 (a), a judge should decide a case on the basis of the evidence presented before him and not on extraneous matters. This tendency will be for him to decide the case based on his personal knowledge and not necessarily on the basis of the evidence that will be presented,' The judge, however, is not precluded from testifying about his personal knowledge of the case. After, disqualifying himself, he can be a presented as a witness in the case before the substitute judge.

A decision to disqualify himself is not conclusive and his competency may be determined on application for mandamus to compel him to act. A judge's decision to continue hearing a case in which he is not legally prohibited from trying notwithstanding challenge to his objectivity may not constitute reversible error (Masadao and Elizaga Re Criminal Case No. 4954-M, A.M. No. 87-9-3918RTC, October 26, 1987).

NOTE: The filing of an administrative case against a judge does not automatically disqualify him from sitting inla case. It must be shown that there are other acts or conducts by the judge which constitute a ground · for his disqualification (Aparicio v. Anda/, G.R. Nos.

Q: A judge rendered a decision in a criminal

case finding the accused guilty of estafa. Counsel for the accused filed a motion for reconsideration which was submitted without arguments. Later, another lawyer entered his appearance for the accused. The judge issued an order inhibiting himself from further sitting in the case because the latter lawyer had been among those who recommended him to the bench. Can the judge's voluntary inhibition be sustained'?

86587·93, July 25, 1989; Medina v. Judge De Guia, A.M. No. RT}-88-216, March 1, 1993).

A judge may by mandamus be compelled to act on questions regarding his disqualification from sitting in a case {Aparicio v. Anda!, G.R. Nos. 86587-93,Ju/y 25, 1989).

UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTES

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· .J 178 •

QUALITIES Requirements for .a judge to continue hearing a case despite the existence of reasons for disqualifications

A: The judge may not voluntarily inhibit himself by the mere fact that a lawyer recommended him to the bench. In fact, the appearance of said lawyer is a test as to whether the judge can act independently and courageously in deciding the case according to his conscience. "Inhibition is not allowed at every instanee that a friend, classmate, associate or patron of a presiding judge appears before him as counsel for one of the parties to a case. 'Utang naloob' per se, should not be a hindrance to the administration of justice. Nor should recognition of such value in Philippine society prevent the performance of one's duties as judge. However, in order to avoid any suspicion of partiality, it is better for the judge to voluntarily inhibit himself (Query of Executive Judge Estrada, on the Confficting Views of Judges Masadao and Elizaga Re: Criminal Case No. 4954·M, A.M. No. 87·9·3918· RTC, October 26, 1987).

u·,

1.

The bona fide disclosure to the parties in litigation; and . The express acceptance by all the parties of the cited reason as not material or substantial.

2.

.

·.

.

PROPRIETY

·

.

CANON4 PROPRIETY AND THE APPEARANCE OF PROPRIETY ARE ESSENTIAL TO THE PERFORMANCE OF ALL THE ACTIVITIES OFA JUDGE.

• The judge's own perception of motives is not relevant when considering appearance of impropriety (Arban v. Judge Borja, A.M. No. R· 281-RTJ, August 26, 1986).

Q: Does a judge's active participation during the hearing of the writ of preliminary injunction amount to an evident display of his bias and partiality in favor of the private respondents and should he therefore disqualify himself from further hearing the civil case?

SEC. 1, CANON 4, NCJC Judges shall avoid impropriety and the appearance of impropriety in all of their activities. The public holds judges to higher standards of integrity and ethical conduct than lawyers and other persons not invested with public trust (Re: .Procedure Adopted by Judge L,iangco in Reraffle of Cases Under P.D. 1602, A.M. No. 99.11 • 158·MTC. August 1, 2000).

A: NO. Mere intervention of the respondent judge during the hearing of preliminary injunction by simply asking the materiality o( a question directed upon the witness and ruling against the petitioners are within the prerogatives and powers of the judge. The fact that the judge asked questions in the course of the trial does not make him a biased judge (Hizon v. Dela Fuente, G.R. No. 152328, March 23, 2004).

Prohibition provided by the Code It prohibits not only actual impropriety but

even the mere appearance of impropriety. Appearance of impropriety ii Impropriety occurs When the conduct of a judge creates in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired (Dionisio v. Judge Escano, A.M. No. RT] 98·1400. February 1,

Remittal of disqualification judge disqualified may, instead of withdrawing from the proceeding, disclose in 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 insubstantial; the judge may then participate in the proceeding, The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceedings (Sec. 6, Canon 3, NC/C). A

1999).

NOTE: Acts done by a judge which are not illegal may still constitute a violation of this rule. Q: After the prosecution cross-examined

Sheila, a witness for the accused, Judge Pedro asked her ten additional questions that were so intense, they made her cry.

179

UNIVERSITY OF SANTO TOMAS~ FA CUL TY OF CIVIL LAW

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JUDICIAL One question forced Shella to admit that her mother was llvmg with another man, a fact that weighed against the accused. This prompted the latter's counsel to move to move to expunge the judge's questions for

bufldfng on the prosecution's

•

ETHICS Impropriety and his personal conduct and behavior should be beyond reproach (Cabreana V; Judge Avelino A.M. No. 1733 CF'/, September 30, 1981).

Qi During the hearing of an election protest tlled by the brother of Judge Dojillo, the latter sat beside the counsel of his brother allegedly to give moral support. Did the judge commit any Improper conduct?

case Did

Judge Pedro commit an impropriety? (2011 Bar) A: YES, because he effectively deprived the defense of its right to due process when he acted both as prosecutor and judge. Q: Judge A accepted a gift consisting of assorted canned goods other grocery items from his compadre whose friend has a pending case with him. He accepted the gift just so as not to embarrass his compadre. When his compadre left his chambers, he asked his secretary to donate the gift he received to the victims of Typhoon Yolanda. Did the judge cross the ethical line? Explain your answer. (2014 Bar)

A: YES, The judge violated the rule on impropriety under Sec I, Canon 4, NCJC for even if he did not intend to use his position as a judge to influence the outcome of his brother's election protest, it cannot be denied that his presence in the courtroom during the hearing of his brother's case would immediately give cause for the community to suspect that his being a colleague i~ the judiciary would influence the judge try\ng the case to favor his brother (Vidal v. Judge Dojillo Jr., A.M. No. MTJ05-1591,Ju/y 14, 2005).

A: YES, Judge A crossed the ethical line. He violated the canon of Propriety. As a subject of public scrutiny, judges must accept personal restrictions that might be viewed as burdensome by ordinary citizens and should do so freely and voluntarily (Sec. 1, Canon 4, NC]C).

Q: Judge Duque of the RTC ~as charged with Impropriety, Corruption and Gross Misconduct. At the hearing, Atty. Ubana, the lawyer of Reyes, introduced her to Judge Duque who allegedly gave Reyes 30 days to settle matters with the bank. She was unable to re-negotiate with the bank. Reyes then allegedly received a phone call from Judge Duque and he instructed Reyes to go "to his house and bring some money in order that he can deny the pending motion to break open." When she already had the money, she went to his house where Judge rluque demanded the money from her.

Examples of acts of a judge which are not illegal but will constitute a violation of this rule 1.

The act of a judge of hearing cases on a day when he is supposed to be on official leave

(Re: Anonymous complaint Against Judge Acuna, A.M. No. RTJ-04-1891,July 28, 2005);

2.

Photograph showing the judge and a subordinate coming out of a hotel together even if there was no clear evidence of sexual congress between (Liwanag v. Judge Lustre, A.M. No. MTJ-98-1168, April 21,

3.

Joking remark made by a judge to a litigant suggesting that the litigant prove he harbored no ill feelings towards the judge (Co v. Judge Plata, A.M. No. MTJ-03:1501,

Another incident happened, whereby Reyes went to the house of Judge Duque for the payment of a sum of money, Judge Duque allegedly scolded her for not bringing the whole amount. Judge Duque then locked the main door of his house and asked Reyes to step into his office. Judge Duque held the waist of Reyes, embraced and kissed her. Reyes tried to struggle and free herself. Judge Duque raised her skirt, opened her blouse and sucked her breasts. He touched her private parts and attempted to have sexual intercourse with Reyes. Reyes shouted for help but the TV was too loud. As a desperate move, Reyes appealed to Judge Duque saying: "kung gusto mo, huwagdito. Sa hotel, sasamaakosayo", Judge Duque suddenly stopped his sexual advances and ordered Reyes to >fix her hair. Is the 1!

1999);

March 14, 2005).

NOTE: The judge's act in riding in defendant's car deserves the stern probation of the Court By such act, he openly exposed himself and the office he holds to suspicion, thus impairing the trust and faith of the people in the administration of justice. A judge's official conduct should be free from the appearance of (··-\

\,.~,.)

UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTES

•

180 •

,,

l QUALITIES respondent judge guilty of impropriety and gross misconduct?

Ramos, A.M. No. MTJ-07·1676, 2009).

A: YES. Judges should avoid impropriety and

In Macias v. Judge Arula, A judge was admonished for the appearance of engaging in partisan politics when he participated in a political rally sponsored by one party, even though he only explained the mechanics of block voting to the audience (Macias v. Judge

the appearance of Impropriety in all of their activities. Judges should conduct themselves in a way that is consistent with the dignity of the judicial office.Judges, like any other citizen, are entitled to freedom of expression, -belief, assoclation and assembly, but in exercising such rights, they should always conduct themselves in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.

January

29,

Arula, A.M. No. 1895-CFI, July 20, 1982).

Dignified conduct It is best described as conduct befitting men and women possessed of temperance and respect for the law and for others (Surigao

The conduct of Judge Duque fell short of' the exacting standards for members of the judiciary. He failed to behave in a manner that would promote confidence in the judiciary. Considering that a judge is a visible representation· of the law and of justice, he is naturally expected to be the epitome of integrity and should be beyond reproach. Judge Duque's conduct indubitably bore the marks of impropriety and immorality. He failed to live up to the high moral standards of the judiciary and even transgressed the ordinary norms of decency of society (Reyes v. Judge Duque, A.M.

Mineral Reservation Board v. Claribel, G.R. No. L· 27072, January 9, 1970; Rheem of the Phil. v. Ferrer, G.R. No. L-22979,June 26, 1967). Q: Judge Gonzales, together with his two male friends, went to the house of A and asked the two girls who were then boarding in A's house to accompany his two male friends and take a stroll in the beach. When the girls refused, the judge admonished them. Consequently, the judge was charged with conduct unbecoming of a judge. Will the action prosper?

No. RTJ-08-2136, September 21, 2010). SEC. 2, CANON 4, NC}C

•

A: YES. A judge should so comport himself as .not to degrade or bring embarrassment to his • office.Here, Judge Gonzales' act of Imposing his will on the complainants constitutes conducts unbecoming of a judge who should be civil, humble and considerate of the rights of others

•

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 w~y that is consistent with the dignity of the judicial office.

(Mariano v. Judge Gonzales, A.M. No. 2180-MJ 114, May 31, 1982). Q: A complaint was filed against Judge Austria alleging that the judge committed an act of impropriety when she displayed her photographs in a social networking website ~Friendster", some of which showed her wearing an "off-shouldered" attire. Judge Maranan contended that an "off-shouldered" attire is an acceptable social outfit under contemporary standards and is not forbidden. Decide.

Membership in the judiciary circumscribes one's personal conduct and imposes upon him certain restrictions, the faithful observance of which, is the price one has to pay for holding such a distinguished position. Accordingly, a magistrate of the law must conduct himself in a manner that his conduct must be free of a whiff of impropriety, not only with respect to the performance of his official duties, but also to his behavior outside his sa/a and as a private individual. His conduct must be able to withstand the most searching public scrutiny, for the ethical principles and sense of propriety of a judge are essential to :{ie preservation of the people's faith in the judicial system lest public confidence in the judiciary would be eroded by the incompetent, irresponsible and negligent conduct of judges (Bayaca v. Judge

A: Judge Austria disregarded the propriety and

appearance of propriety required of her when she posted photos of herself wearing an "Off· shouldered" suggestive dress and made this available for public viewing. When she made this picture available for public consumption, she placed herself in a situation where she, and the status she holds as a judge, may be the object of the public's criticism and ridicule. The

181

UN lVER.SITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW

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• JuoiCIAL act of posting her photos would seem harmless and Inoffensive had this act been done by an ordinary member of the public. As the visible personification of law and Justice, however, Judges are held to higher standards of conduct and, thus, must accordingly comport themselves (Lorenzanav.Judge Austria, AM. No.

burdensome by the ordinary citizen and should do so freely and willingly (Anonymous v.Judge Achas, A.M. No. MTJ-11·1801, February 27, 2013). SEC. 3, CANON 4, NC]C

Judges shall, in thei,l,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.

RTJ-09·2200, April 2, 2014).

NOTE: NCJC does not prohibit a judge from joining or maintaining an account in ·a social networking sites. Section 6, Canon 4 of the New Code of Judicial Conduct recognizes that judges, like any other citizen, are entitled to freedom of expression. However, the same provision also imposes a correlative restriction on judges:' in the exercise of their freedom of expression, they should always conduct themselves in a manner that preserves the dignity of the judicial office and the impartiality and independence of the Judiciary

This section is directed at bolstering the principle of cold neutrality of an impartial judge as it requires judges to scrupulously guard against any act that may be construed as an expression of bias in favor of a litigant (Gutierrez' v. Santos, G.R. No. l-15824, May 30, 1961; Castillo v. Juan, G.R. Nos. L-39516·17, January 28, 1975).

(Lorenzana v. Judge Austria, A.M. No. RTJ·09· 2200, April 2, 2014).

NOTE: Constant company with a lawyer tends to breed intimacy and camaraderie to the point that favors in the future may be asked from the judge which he may find hard to resist. If a judge is seen eating and drinking in public places with a lawyer who has cases pending in his or her sala, public suspicion may be aroused, thus tending to erode the trust of litigants in the impartiality of the judge (Padilla v. Zantua, G.R. No. 110990, October 23, 1994).

Q: An anonymous letter called on the Court to look into the morality of respondent Judge Achas and alleged that: (1) it is of public knowledge in the city that Judge Achas ts living scandalously with a woman who is not his wife: (2} he lives beyond his means: (3) he is involved with illegal activities ( 4) he comes to court very untidy and dirty; (5) he decides his cases unfairly in exchange for material and monetary consideration; and (6) he Is Involved with cockfighting/gambling. Judge Achas denied all the charges but admitted that he was married and only separated de facto from his legal wife for 26 years, and that he reared game cocks for leisure and extra income, having inherited such from his forefathers. Should Judge Achas be disciplined?

Q: Complainant Prosecutor filed an administrative complalnt against the Sandiganbayan Justices for grave misconduct, conduct unbecoming a justice, and conduct grossly prejudicial to the interest of the service. Allegedly, during a hearing, Justice Ong uttered words like "We are playing Gods here, we will do what we want to do, your contempt is already out, we fined you eiqhteen thousand pesos, even if you will appeal, by that time I will be there, Justice of the Supreme Court" Also, he often asked lawyers from ,which law schools they had graduated, and frequently inquired whether the law school in which Justice Hernandez had studied and from which he had graduated was better, than his (Justice Ong's) own alma m'ater. The complainant opined that the query was manifestly intended to emphasize that the San Beda College of Law, the alma mates· of Justice Ong, and the UP College of Law, that of Justice Hernandez, were the best law schools. On another occasion in that hearing In Cebu City, Justice Hernandez

A: YES. The investigation revealed that the respondent judge found for himself a suitable young lass whom he occasionally goes out with in public and such a fact is not a secret around town. It is not commendable, proper or moral for a judge to be perceived as going out with a woman not his wife. Such Is a blemish to his integrity and propriety and to that of the judiciary. While rearing fighting cocks is not illegal, Judge Achas should avoid mingling with a crowd of cockfighting enthusiasts and bettors as It undoubtedly impairs the respect due him. As a judge, he must impose upon himself personal restrictions that might be viewed as ,.-.)UNIVER~ITY OF SANTO TOMAS \L ...v 2019 GOLDEN NOTES

ETHICS

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QUALl,.IES discourteously shouted at Prosecutor HazelinaTujan·Militante, who was then observing trial from the gallery and said "You are better than Director Somido? Are you better than Director Chua? Are you here to supervise Somido? Your office is wasting

funds for one prosecutor who is doing nothing". Finally, Justice Hernandez berated Atly. Pangalangan, the father of former UP

Law Dean Raul Pangalangan, and uttered words such as 'Just because your ~on is always nominated ~y the ]BC to Malacafi.ang, you are acting like that! Do not forget that the brain of the child follows that of their {sic) mother." Should the respondent justices be held liable for conduct unbecoming? A: YES •. Publicizing professional qualifications or boasting of having studied in and graduated from certain law schools, no matter how prestigious, might have even revealed, on the part of Justice Ong and Justice Hernandez, shows their bias for or against some lawyers. Their conduct was impermissible, consequently, for Section 3, Canon 4 of the New Code of Judicial Conduct for the Philippine Judiciary, demands that judges avoid situations that may reasonably give rise to the suspicion or appearance of favoritism or partiality in their personal relations with individual members of the legal profession who practice regularly in their courts. Judges should be dignified in demeanor and refined in speech. In performing their judicial duties, they should not manifest bias or prejudice by word or conduct towards any person or group on irrelevant grounds. It is very essential that they should live up to the high standards their noble position on the Bench demands (jamsantRodriguez v. Judge Ong, A.M. No. 08-19-SB·J, August 24, 2010).

clerk for a position in the court of her "kumare'. Is the judge guilty of favoritism? A: NO. Complainant's appointment was under temporary status in view of her lack of two years relevant experience which was required for the position. Respondent judge, who is the immediate supervisor of complainant, is in the best position to observe the fitness, propriety and efficiency of the employee for the position. I It should be impressed upon complainant that her appointment in the judiciary is not a vested right It is not an entitlement that she can claim simply because she had been in the service for ~ almost two years.

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Since there is no proof that respondent judge abused her position, the case against her should be dismissed. Respondent judge should, however, be reminded to be circumspect in her actuations so as not to give the impression that she is guilty of favoritism {Magtagn.ob v. Judge Gapas·Agbada, OCA If/ No. 11-3631-RTJ, January 16, 2013). \ Q: In an action to prevent the condominium developer from building beyond ten (10)

fl,oors, Judge Cerdo rendered judgment in . favor of the defendant developer. The • judgment became final after the plaintiffs failed to appeal on time. Judge Cerdo thereafter purchased a condominium unit from the developer. Did Judge Cerdo commit any act of impropriety? (2013 Bar) A: YES, Judge Cerda is guilty of an act of impropriety. It is desirable that he should, so far as reasonably possible, refrain from all relations which would normally tend to arouse the suspicion that such relations warp or bias his judgment, or prevent his impartial attitude of .mlnd in the administration of his judicial duties.

Q: In a complaint filed by a former court stenographer against Judge Agabas, he contended that her appointment was not renewed because the judge refused to sign the requirements for the change of her employment status from temporary to permanent despite her two-year service. Complainant states that many of her officemates have · questioned the "satisfactory" rating given to her by the judge considering their non-performing utility clerk received a higher rating despite respondent judge's knowledge of the latter's misdeeds. Worse, she claims that the judge even recommended the utility

SEC. 4, CANON 4, NC]C

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 This rule rests on the principle that no judge should preside in a case Ip which the judge is not wholly free, disinterested, impartial .and independent (Garcia v. Judge De la Peiia, A.M. No. MTJ-92-687, February 09, 1994). SEC. S, CANON 4, NCJC

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JUDICIAL Judges shall not allow the use of their residence by a member of the legal profession to receive clients of the latter or of

ETHICS intemperate language detracts from how he should conduct himself. Moreover, it does not matter whether such expressions were directed to a particular person, as they give the impression of a person's ill manners {Re: Anonymous complaint Against Judge Acuna,

oth,r members of the legal profession. The reason Is that judges are required to always exhibit cold neutrality of an impartial judge.

A.M. No. RTJ·04-1891,July 28, 2005). SEC. 7, CANON 4, NCJCc

NOTE: It was Inappropriate for a judge to have

Judges shall inform themselves about their personal fiduciary and financial interests and shall make reasonable efforts to be informed about the financial interests of members of their family.

entertained a litigant in his house particularly when the case is still pending before his sala(J. King and Sons. v. Judge Hontanosas, A.M. No. RTJ-03-1802, September 21, 2004).

This section should be read in conjunction with Sec. 7 of the R.A. 6713 (Code of Conduct and Ethical standards for Public Officials and Employee), which prohibits certain personal fiduciary and financial conflicts. A judge shall refrain from financial and business dealings that tend to reflect adversely 011 the court's impartiality, interfere with the proper performance of judicial activities, or increase involvement with lawyers or persons likely to come before the court (Catbagan v. Judge Barte,

SEC. 6, CANON 4, NC}C 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 judicia,y. While judges are not expected to Jive a hermit· like existence or cease functioning as citizens of the Republic, they should remember that they do not disrobe themselves of their judicial office upon leaving their salas, In the exercise of their civil liberties, they should be circumspect and ever mindful that their continuing commitment to upholding the judiciary and Its values places upon them certain Implied restraints to their freedom {Sison v.Judge Caoibes,Jr., A.M. No. RTJ-03-1771,

A.M. No. MTJ-02-1452, April 06, 2005). SEC. 8, CANON 4, NC]C

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 111 a special position improperly to:Jnjluence them in the performance ofjudicial duties.

May 27, 2004)

Q: Judge Acuna was charged with improper conduct for allegedly making humiliating statements such as "putris," and "putanqtna', Judge Acuna explained that those words are only his favorite expressions and they are not directed to any particular person. He also explained that his behavior is justified by the fact that he ls "still mourning the sudden demise of his eldest son. Is the Judge guilty of improper conduct?

Prohibited acts by theirule 1.

Judge's act of using judicial office to advance private interests. NOTE: An RTC judge took advantage of his

position, by filing in the Makati court a collection case in which he and his wife were the complainants. The Court ruled that although a stipulation in the contract gave the judge, as creditor, choice of venue, the judge had nonetheless fallen short of what is expected of him as a judicial officer. This act of the judge would lead the public, and in particular the judge's adversary, to suspect that the Judge would use the choice of venue as a means to exert influence in favor of himself (javier v. Judge De Guzman, A.M. No. RT/-89-380, December

A: YES, Judges are demanded to be always temperate, patient and courteous both in the conduct and language. Indeed, judges should so behave at all times because having accepted the esteemed position of a judge he ought to have known that more is expected of him than ordinary citizen. Here, the judge's use of humiliating and Insensitive expressions like "putris" and "putang-ina" is improper as such

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Judge's act of giving impression that he can be influenced to use the judicial office to advance the private interests of others.

Q: Judg¢ Lilagam was charged with improper conduct for allowing his wife to have access to court records. In his answer, the judge admitted that he requested his wife who.was previously a legal researcher, to go over the records and pinpoint problem areas and to suggest measures to rectify the same and to improve the system of case monitoring. Is the judge guilty of improper conduct?

Q: Judge Escano was charged with allegedly

using court facilities (bulletin board) in advertising for attractive waitresses and cooks for employment in their restaurant business. He also allowed the use of the court address to receive applications and the use of his office to screen the applicants. The judge explained that be merely wanted to give assistance to his wife. The posting of advertisements and the conduct of screening in his office is the most convenient way for him, considering the difficulty of locating the residence. Did the judge commit any unethical act?

\,:

A: YES. Records of t cases are necessarily confidential, and to preserve their integrity and confidentiality, access •, thereto ought to be limited only to the judge, the parties or their counsel and the appropriate court personnel in charge of the custody of said records. Here, since Mrs. Lilagam is not a court employee specifically in charge of the custody of said records, the judge's act of allowing her to have access thereto is improper as such would convey the impression that she Is the one who can influence the judge's official function (Gordon v.Judge lila,gam, A.M. No. RTJ·00-1564, July 26, 2001).

A: YES. judges shall not use or lend the

prestige of the judicial office to advance their private interests for those of a member of a family. This is so to avoid possible interference which may be created by such business involvements in the exercise of their duties which may tend to corrode the respect and dignity of the court as bastion of justice. Here, the act of the judge in using the court facilities to promote family business Is Improper (Dionisio v. Judge Escano, A.M. No. RTJ-98-1400, February 1, 1999).

.Acts of judges which would constitute a criminal offense The following, under Sec. 3 [k] of R.A. 3019, and under Art 229 and 230 of the RPC, are violations of the rule which also constitute criminal offenge:

Ticket fixing

t.

It is misconduct in which judges impermissibly take advantage of their public position to avoid punishment for traffic violations. SEC. 9, CANON 4, NC]C

Confidential information acquired by judges in their judicial capacity shall not be used or disclosed for any other purpose not related tu their judicial duties,

Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date (R.A. 3019, Sec. 3[k]).

2.

Court records or judicial records Court records do not only refer to the orders, judgments, or verdict of courts but comprise the official collection of all papers, exhibits, pleadings filed by the parties, all processes issued and returns made thereon, appearances, and word-for-word testimony which took place during the trial and which are in the possession, custody, or control of the judiciary or the courts (Hilado v. Judge Reyes, G.R. No. 163155,July 21, 2006).

3.

Reveal any secret known to him by reason of his official capacity, or shall wrongfully deliver papers or copies of papers of which he may have charge and which should not be published, shall suffer imprisonment (Art.229, RPC). Public officer revealing secrets of private individual -Any public officer to whom the secrets of any private individual shall become known by :~eason of his office who shall reveal such secrets (Art.230, RPC). '.[

SEC. 10, CA}!ON 4, NCJC

Subject to the proper p,erformance ofjudicial duties, judges may: ·

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1, Write, lecture, teach and participate in activities concerning the law, the legal system, the administration of justice or related matter; 2. Appear at a public hearing before an official body concerned with matters relating to the law, the legal system, the administration ofJustice or related matters; 3. Engage In other activities if such activities do not detract from the dignity of the judicial office or otherwise Interfere with the performance ofjudicial duties.

The prohibition Is based on sound reasons of public policy, considering that the rights, duties, privileges and functions of the office of an attorney are inherently incompatible with the high official functions, duties, powers, discretion and privileges of a sitting judge. It also aims to ensure that judges give their full time and attention to their judicial duties, prevent them from extending favors to their own private interests, and assure the public of their impartiality in the performance of their functions. These objectives are dictated by a sense of moral decency and desire to promote the public interest (Decena v. Judge Malanyaun,

This section allows the judge to participate in legal academia and public discourse on legal matters with the proviso that there shall be no interference in the performance of the judge's primary functions with respect to his or her jurisdiction (Albos v. Judge Alaba, A.M. No. MT]· 91·517,

A.M. No. RTJ·l0-2217, April 81 2013).

NOTE: Sec. 35 ofRule 138 of the Rules of Court prohibits judges from engaging in the practice of law or giving professional advice to clients. Philippine courts not only prohibit judges from overtly representing clients as counsel of record, but also from acting more subtly in a way more befitting an advocate than a judge.

March 11, 1994).

This section's tolerance of judicially-related activities Is limited by Sec. 12, Article VIII of the Cortst!tutlon, which prohibits Judges from

The rule disqualifying a municipal judge from engaging in the practice of law seeks to avoid the evil of possible: use of the power and influence of his office to affect the outcome of the litigation where he is retained as counsel. Compelling reasons df public policy lie behind this prohibition, and judges are expected to conduct themselves in such a manner as to preclude any suspicion that they are representing the interests of party litigant

being "designated to any agency performing quasi-judicial or administrative functions". Judge cannot be a member of Provincial Committee on Justice Such membership would violate the constitutional provision on the discharge by members of the judiciary of administrative functions in quasi-judicial or administrative agencies. This does not mean, however, that judges should adopt an attitude of monastic insensibility or unbecoming indifference to the Provincial/City Committee on Justice. As incumbent judges, they form part of the structure of government Even as non· members, judges should render assistance to said committees to help promote the laudable purposes for which they exist, but only. when such assistance may be reasonably incidental to the fulfillment of their judicial duties (In Re:

(Dta-Anonuevo v, Judge Bercacio, A.M. No. 177 • MT], November 27, 1975).

Q: Judge Malanyaon was present in the hearing of her daughter to advise her on what to do and say during the hearing, to the point of coaching her. Was the act of the judge considered contrary to Section 11, Canon 4 of the NCJC, prohibiting judges from engaging in the private practice of law or giving professional advice to clients?

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Designation of Judge Manzano, A.M. No. 88-7· A: YES. The Court held that the judge engaged in the private practice of law by assisting his daughter at his wife's administrative case, coaching his daughter in making manifestations or posing motions to the hearing officer, and preparing the questions that he prompted to his daughter. The term practice of law is not limited to the conduct of cases in court or to participation in court proceedings, but extends to the preparation of pleadings or papers in anticipation of a litigation, the giving of legal advice to clients or

1861-RTG~ October 5, 1988).

NOTE: Under Sec. 10(c), Section 10, Canon 4, a judge may engage in private business without the written permission of the Supreme Court (Borre

v.

Judge Moya, A.M. No. 176S·CFI,

October 17, 1980). SEC. 11, CANON 4, NCJC , Judges shall not practice law whilst a

holder ofjudfcial office.

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QUALITIES persons needing the same, the preparation of legal instruments and contracts by which legal rights are secured, and the preparation of papers incident to actions and special

Judge Maawain. He did not give professional 1of advice in anticipation litigation. He was just

proceedings (Dacena v. Judge Malanyaon1 A.M. No, R'fJ-10-2211,April B, 2013).

Instrumental witness· and not as a legal

asked to review a : deed of extrajudiclal settlement of estate. He signed merely as an

counsel, Besides, his act was an isolated act. SEC. 12, CANON 4, NC]C

Judge Lelina was administratively charged for violation of Section 35, Rule 138 of the Rules of Court and Rule 5.07, Canon S of the Code of Judicial Conduct. He was then preventively suspended by the Court on account of an earlier administrative complaint filed charging him with harassment Subsequently he appealed to the Court to grant him the permission to practice law during the remainder of his preventive suspension or, if such cannot be granted, to consider him resigned from the judiciary. It turned out Q:

that

before he filed the

Judges may form or join associations of judges or participate in other organizations representing the interests ofjudges.

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This rule recognizes the difference between membership in associations of judges and membership in associations of other legal professionals. While attendance at lavish events hosted by lawyers might create an appearance of impropriety, participation in judges-only organizations does not (Pineda, 2009).

above-seld Rules relating to prohibition accepting gifts, bequests, or loans

Manifestation, Appeal and Omnibus Motion, Judge Lelina engaged in the private practice of Jaw. Did the judge commit any unethical act?

against

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. GR: Sections 13 and 14 of Canon 4 of the NCJC. XPN: Section 15 of Canon 4 of the NCJC.

A: YES. Since Section 35, Rule 138 of the Rules of Court and Section 11, Canon 4 of the New Code of Judicial Conduct for the Philippine Judicial}' do not make any distinction in prohibiting judges from engaging in the private practice of Jaw while holding judicial office, no distinction should be made in its application. In the present case, Judge Lelina, having been merely suspended and not dismissed from the service, was still bound under the prohibition (Binalay v. Judge Lelina Jr,A.M. No. RT]-OB·2132,July31, 2009),

SEC. 13, CANON 4, NC}C 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, CANON 4, NC}C

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, to be :done or omitted to be done in connection ',with their duties or functions. ·

Q: In an extrajudlclal settlement of the estate of the late Juan Mayaman, the heirs requested Judge Maawain, a family friend, to go over the document prepared by a new lawyer· before they signed it. Judge Maawain agreed and even acted as an instrumental witness. Did Judge Maawain engage in the unauthorized practice of law? Why? (2002 Bar) ·

Sec 14 Canon 4 of NCJC assures that what the judge cannot do directly (soliciting gifts), may not be done indirectly through the use of employees or staff members.

A: NO. In the case of De· Castro v. Judge Capulong, (A.M. No. 2739-CFI, November 2, 1982), the Supreme Court held that a judge who merely acted as a witness to a document and who explained to the party waiving his rights of redemption over mortgaged properties the consequences thereof, does not engage himself in the practice of law. This appears to be more applicable to the case of

NOTE: Section 13 should be read in conjunction with Section 7(d) of R.A. 6713 ( Code of Conduct and Ethical Standards .for Public officials and Employee) which provides that, public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of money value from any person in the course

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of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office.

Judges are allowed to accept token gifts, awards, or benefits when given as a consequence of a special occasion {Sec. 14, RA

Q: Judge Ganay received law books worth fifty thousand pesos, cellular phones and

Gifts and countries

3019). grants

allowed

from

foreign

monthly cellular phone prepaid cards from

1. The acceptance and retention by a public

the property guardians of the late Rev. Fr. Aspiras, who was then the ward of the court. Further, he issued Orders directing the manager of the PNB, La Union Branch to draw checks amounting to thousands of pesos from the account of the late Rev. Fr. Asplras, ls Judge Ganay guilty of impropriety?

2.

3.

A: YES. Respondent Judge Ganay clearly fell short of.the exacting standards set by the New Code of Judicial Conduct for the Philippine Judiciary. His acts constitute impropriety which the Court cannot allow. Respondent Judge Ganay's act of issuing Orders to draw checks creates the impression of impropriety and subjects the court to suspicion of irregularities in the conduct of the proceedings

{Heirs of Aspirasv, Judge Ga nay, A.M. No. RTJ-072055, December 17, 2009).

OTHER LAWS PROHIBITING THE ACCEPTANCE OF GIFTS OR OTHER MATERIAL BENEFITS

Q: X was charged with grave threats before the

sala

official or employee of a gift of nominal value tendered and received as a souvenir or mark of courtesy; The acceptance by a public official or employee of a gift in the nature of a scholarship or fellowship grant or medical treatment; or \, The acceptance RY a public official or employee of travel grants or expenses for travel taking place entirely outside the Philippines (such as allowances, transportation, food and lodging) of more than nominal value if such acceptance is appropriate or consistent with the interest of the Philippines, and permitted by the head office, branch or agency to which the judge belongs {Sec. 7[d], R.A. 6713).

of Judge Elias Lelina. During the

pendency of the case, X offered a business partnership to the daughter of Judge Lellna

Indirect and direct bribery of judges

who then accepted the same. Should the

Acceptance of gifts given by reason of the office of the judge is indirect bribery (Art. 211, RPC) Acts punishable in direct bribery are as follows:

judge be disciplined?

A: YES. Judges should not allow members of their family to accept gifts nor favor in relation to anything done, to be done, or omitted to be done by the judge in connection with the performance of his official duties. Here, the judge's act of allowing his daughter to accept the business offer of X despite knowledge of the possible intention of the latter who has pending case in his sala is improper {Dulay v.

a)

By agreeing to perform an act which constitutes a crime in connection with his official duties for a consideration; b) By accepting a gift in consideration of the execution of an act which does not constitute a crime in consideration with the performance of his official duty; and c) By refraining, from doing something which it is his official duty to do, in consideration of gift or promise (Art.210, RPC).

Judge Lelina Ir; A.M. No. RTJ-99-1516, July 14, 2005).

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SEC, 15, CANON 4, NCJC

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 official duties or otherwise give rise to a~ appearance of partiality. (!•...-..)

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Anti-Graft and Corrupt Practices Act: Judges receiving gifts or other material benefits

GR: The judge is liable criminally for directly or indirectly receiving gifts, presents or other pecuniary or material benefit for himself or for another under conditibns provided in Section • · 2, pars.b and c of the

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XPN: Unsolicited gifts or presents of small value offered or given as a mere ordinary token of gratitude or friendship according to local custom or usage (Section 14, RA 3019). NOTE: Under Section 16 Article XI of the 1987 Constitution "No loan, guarantee or other form of financial accommodation for any business purpose may be granted, directly or indirectly, by any government-owned or controlled bank or financial institution to members of the Supreme Court during their tenure. It is a serious misconduct for a judge to receive money from a litigant in the form of loans which he never intended to pay back. Even if the judge intends to pay, it is an act of impropriety to take a loan from a party litigant. The judge could not be wholly free from bias in deciding a case where his lender is a party. A judge should always strive to be free from suspicion and all forms of improprieties (Ompoc v. Judge Torres, A.M. No. MTJ-86-11, September 27, 1989). • ·· . .

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SEC. 2, CANONS, NCJC

Judges shall not, in the performance of ~ judicial duties, by words or conduct, manifests bias or prejudice towards any person or9roup on irrelevantgrounds.

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Magistrates of law must comport themselves at all times in such a manner that their conduct, can withstand the highest level of public scrutiny (Barba v. Judge Salazar, A.M. No. MT]· 06-1630, March31, 2006). Judges should avoid private remarks, hasty conclusions, or dist.asteful jokes that may give even erroneous impressions of prejudice and lead the public to believe that cases before . them are being prejudged (Agpalo, 2004, citin9 • State Prosecutors v. Judge Muro, A.M. No. RT]· 92-876, September 19, 1994).

· . SEC. 3, CANON 5, NC]C

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 irrelevant ground, immaterial to the proper performance of such duties.

CANON 5 ENSURINGEQUALITY OF TREATMENTTO ALL BEFORETHE COURTSIS ESSENTIAL TO THE DUE PERFORMANCEOF THE JUDICIAL OFFICE.

anr

A judge must be able to render substantial justice and maintain public confidence in the judicial system, by being aware of the diversity in society. With that awareness, a judge should not yield to first impression, reach hasty conclusions or prejudge matters (Castillo v. [udqe juan, 62 SCRA 124).

As arbiters of the law, judges should be conscientious, studious, courteous, patient and punctual in the discharge of their judicial duties, recognizing that the time of litigants, witnesses and counsel is of value. Judges should act with decorum toward jurors, parties, court staff, spectators, and alike (Delgra, Jr. v. Gonzales, G.R. No. L-24981, January 30, 1970).

SEC. 1, CANON 5, NC]C

Judges shall be aware of and understand diversity In society and differences arising from various sources, lncludin9, but not limited to, race, color, sex, religion, national oriqtn, caste, disability, age, marital status, sexual orientation, soda/ and economic status, and other like causes.

Q: Judge Tormis made a comment In a certain case to the effect that the same should be dismissed as the act complained of was already decriminalized by a special law. Thereafter, Judge Navarro, who previously handled the case before he was appointed as a judge, barged into the office of Judge Tormis and told the staff that their judge did not know her law. Judge Tormis then retaliated by saying that to her, the office of Judge Navarro did not exist. Are the judges guilty of conduct unbecoming of a judge?

Judges should be mindful of the various international instruments and treaties ratified by the Philippines, which affirm the equality of all human beings and establish a norm of non· discrimination without distinction as to race, sex, language, or religion. Judges should not yield to first impression, reach hasty

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JUDICIAL. A: YES. Judges, being dispensers of justice, should not act In a way that would cast suspicion in order to preserve faith in the ·administration of justice. They should so behave to avoid poor public impression on the judiciary. Here, the judges act of fighting each other by uttering derogatory remarks against each other Is a conduct unbecoming of a judge for which they should be disciplined as their fight has impaired the image of the judiciary (Navarro v.Judge Tormis, A.M. No. MT]-00~1337, April 27, 2004).

2.

SEC. 5, CANON5, NC}C 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.'

A: YES. A judge should avoid unconsciously falling into the attitude of mind that the litigants are made for the courts, instead of the courts for the litigants. Here, the judge should be held liable for misconduct when he threatened to punish complainant for contempt of court if he would refuse to withdraw his appearance, as counsel -for the accused, when the latter insisted on waiving the presentation of the evidence for the ~ defense (Atty. Quinto v. Judge Vios, A.M. No. MTJ-04-1551, May21, 2004). ; SEC. 4, CANON 5, NC}C

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.

UNIVERSITY OF SANTO TOMAS 2 0 1 9 GO L D E N N OTES

Judges have the duty to prevent lawyers from abusing witnesses with unfair treatment Q: During the hearing of a case for statutory rape filed against X, the lawyer was asking the 6-year-old victim to relate exactly and step by step the sexual intercourse between her and the accused. The lawyer was also asking questions whether at the time of the alleged rape, the accused's penis was hard, and whether at the time they were caught, the accused was ~till pushing and pulling his penis inside \per vagina. Should the judge allow such questions?

A: NO. The judge .shall require lawyers to refrain from making abusive and uncalled for queries. Here, since the victim of rape is a child of tender years, there is more reason to require the lawyer to be tactful. No. woman especially child of tender years would exactly remember step hy step the sexual intercourse in the hands of the maniacal beast Hence, all the questions asked are excessive (People v. Baras, G.R. No. 127495, December22, 2000).

To ensure that court personnel under their supervision do not discriminate • by dispensing special favors or disclosing confidential Information to : any unauthorized person, regardless of

1,11-·}

Judges should conduct proceedings in court with dignity and in a manner that reflects the importance and seriousness of proceedings. They should maintain order and proper decorum in the court (Rule 3.03, Canon 3, 1989 Code o[Judicia/Conduct).

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whether such information came from authorized or unauthorized sources; and To organize their courts to ensure the prompt and convenient dispatch of business and, should not tolerate misconduct by; clerks, sheriffs and other assistants who; are sometimes prone to expect favors ci.r special treatment due to their professional relationship with the judge.

NOTE: All personnel involved in the dispensation of justice should conduct themselves with a high degree of responsibility (Mataga v. Judge Rosete, A.M. No.MTJ-03·1488, October .13, 2004).

Q: Atty, Quinto was the defepse counsel in a criminal case. He alleged that during the hearing, he manifested that he was waiving the presentation of evidence for the accused and Judge Vios then allegedly got angry, shouted and scolded him, stating that the defense had no right to waive the presentation of evidence. He did not even listen to Atty. Quinto's explanation and, thereafter, compelled the · latter to withdraw his appearance as counsel of the accused, under pain of contempt. In the presence of the complainant, Judge Vlos appointed a counsel de cftcio. May Judge Vios be held administratively liable for compelling the lawyer to withdraw as counsel for the accused?

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COMP ET.ENCEAND DILIGENCE .

actuations, Judge Noel has shown his lack of integrity and diligence, thereby blemishing the image of the judiciary (Rodriguez v. Judge Noel,

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CANON6 COMPETENCE AND DILIGENCE ARE PRE~ REQUISITES TO THE DUE PERFORMANCE OF JUDICIAL OFFICE. .

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A judge upon assumption to office, becomes the visible representation of law and of justice, hence, the Constitution (Section 7 (3), Article Vl/l), prescribes that he must be a person of proven competence as a requisite of his membership in the judiciary. A judge should be the epitome of competence, integrity and independence to be able to render justice and uphold public confidence in the legal, system. He must be conversant with basic legal principles and well-settled doctrines. He should strive for excellence and seek the truth with passion (Rina v. Judge

Ca waling, A.M. No. MTJ-02-1391, June 7, 2004).

[r., A.M. No. RTJ-18-2525, June 25, 2018,

PERLASBE'RNABE). '

Q: Bayaca was convicted by Judge Ramos in a criminal case for arson through reckless imprudence and imposed upon him the penalty of imprisonment, with all the accessory penalties imposed by law in addition to the payment of costs and damages. On appeal, the RTC deleted the penalty of imprisonment. However, Judge Ramos subsequently issued a warrant of arrest and commitment on final,sentence which led to complainant's incarceration for 20 days. In his comment, the judge clarified that his issuance of the warrant of arrest against Bacaya was a mistake done in good faith and that '.the same was just a • · simple negligence. ~hould the judge be disciplined? :

NOTE: As members of the judiciary, judges

A: YES. The judge was inexcusably negligent when he issued a Warrant of Arrest and Commitment to Final Sentence despite the deletion by the appellate court of that portion of the judgment imposing the penalty of imprisonment. In the performance of his duties, Judge Ramos failed to observe that diligence, prudence and circumspection which the law requires in the rendition of any public service (Bayaca v. Judge Ramos, A.M. No. MTJ·

ought to know the fundamental legal principles; otherwise, they are susceptible to administrative sanction for gross ignorance of the law (Heirs of Piedad v. Judge Estrella, A.M. No. RTJ-09-2170, December16, 2009). Q: Rodriguez claimed that in a civil case,

Judge Noel issued, on July 10, 2015, a 72· hour temporary restraining order enjoining him from causing any act that might cause violence and to maintain the status quo in GDJTI. A Notice of special raffle was also issued by Judge Noel and was received by Rodriguez's aunt on the same date. To his surprise, however, on July 14, 2015, the 72hour TRO was extended for another twenty (20) days, or way beyond the 72-hour period. Should Judge Noel be held administratively liable?

07-1676, January 29, 2009). SEC.1, CANON 6, NCJC

The judicial duties of a judge precedence over all activities.

take

Duties of a judge under this section 1. A judge must perform his judicial duties with regard to a case where he is not disqualified to do so and, may not divest himself of such case if he is not so disqualified; and 2. A judge shall not inhibit himself simply to avoid sitting on difficult or controversial cases.

A: YES. Judge Noel had been remiss in the issuance of the July 14, 2015 Order extending the TRO and the scrupulous observance of the requisites therefor. The observance of the law, which Judge Noel ought to know, is required of every judge. When the law is sufficiently basic, a judge owes it to his office to simply apply it; failure to consider a basic and elementary rule, a law or principle in the discharge of his duties, a judge is either too incompetent and undeserving of the position and the title he holds or is too vicious that the oversight or omission was deliberately done in bad faith and in grave abuse of judicial authority. By his

Q: An administrative case· against Judge Calderon was filed for incurring leaves of absence for almost a straight period of 3 years. In his comment, he claimed that he was suffering from a lingering illness of malignant hypertension which was supported by medical certificates prepared

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by his personal doctor. However, when the court physician conducted some tests, the same contradicted the diagnosis given by the judge's personal doctor. Is Judge Calderon guilty of gross misconduct?

constitutes no less than clear acts of defiance against the Court's authority. His conduct also reveals his deliberate disrespect and indifference to the authority of the Court, shown by his failure to heed our warnings and directives [lnoturan, v. Judge Limsiaco, Jr., A.M.

A: YES. A judge shall be cautious of his court

No. MTJ-01-1362, February 22, 2011).

duties. Here, the judge should have been aware that, in frequently leaving his station, he has caused great disservice to many litigants and has denied them speedy justice (Re: Leaves of Absence Without Approval of Judge Calderon, A.M. No. 98-8-105-MTC,January 26, 1999).

SEC. 2, CANON 6, NC}C 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.

Q: Judge Limsiaco admitted that he decided an ejectment case two (2) years after it was declared submitted for resolution. He was found guilty of gross ignorance of law and procedure. Despite the extension of time given, Judge Limsiaco failed to file his motion for reconsideration and the required explanation thrice. In another complaint against him for Delay in the Disposition of a Case, the OCA issued an order for him to me a comment for the administrative complaint. Is the judge administratively liable for unethical conduct and gross inefficiency under the provisions of the New Code of Judicial Conduct, specifically, Sections 7 and 8 of Canon 1; and Section S of Canon 6?

Violations of this section often involve a failure to keep records or handle funds in compliance with court rules.

A: YES. A judge is the visible representation of the law, and more importantly of justice; he or she must, therefore, be the first to follow the law and weave an example for the others to follow. For a judge to exhibit Indifference to a resolution requiring him to comment on the accusations in the complaint thoroughly and ' substantially is gross misconduct, and may even be considered as outright disrespect for the Court. The office of the judge requires him to obey all the lawful orders of his superiors. After all, a resolutlon of the Supreme Court is not a mere request and should be complied with promptly and completely. Such failure to comply accordingly betrays not only a recalcitrant streak In character, but has likewise been considered as an utter lack of interest to remain with, if not contempt of the judicial system.

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UNIVERSITVOF ANTOTOMAS 2019 GOLDEN NOTES

A: YES. A judge is charged with extra care in ensuring that records of the cases and official documents in his custody are intact. Moreover, judges must adopt a system of record management, and organize their dockets in order to bolster the prompt and efficient dispatch of business. Here, the circumstances show that the loss of the documents was occasioned by the carelessness on the part of the judge. The judge should not have left such important documents in his table to be gathered only after few days, instead, he should have devised a filing system in his court so as to avoid such incident (Beso v. Judge Dagurnan, A.M. No. MTJ-99-1211, January 28, 2000).

Moreover, the Court should not and 110t tolerate future indifference of respondents to administrative complaints and to resolutions requiring comment on such administrative complaints. Under the circumstances, the conduct exhibited by Judge Limsiaco {.\

Q: Judge Daguman was charged with neglect of duty in failing to retain a copy and to register with the Local Civil Registrar a marriage contract. The judge explained that his failure was occasioned by circumstances beyond his control. He averred that after the wedding ceremony, the copies of the marriage contract were left on top of his desk in his private office where the ceremony was held but after few days, when he gathered all the documents relating to the marriage, the copies were already missing. He also explained that he was not able to inform the parties about the fact of loss as they were already out of the country. Should the fudge be disciplined?

Q: X charged Judge Garillo with dishonesty

and corrupt practices for allegedly requiring the former to deposit with the latter a sum of money in connection with a

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QUALITIES pending case in the latter's salabut failed to give the deposited sums of ·money to the adverse party. It was also alleged that when X demanded the return of money, the judge failed to return the same despite his promise, Is the judge guilty of serious

v. Judge Ochotoresa,A.M. No. RT} 04-1861, July 30, 2004). One who accepts the exalted position of a judge owes the public and the Court the duty to maintain professional competence at all times. When a judge displays .an utter lack of familiarity with the rules, he erodes the confidence of the public in the courts. A judge owes the public and the Court the duty to be proficient in the law, .and is expected to keep abreast of laws and prevailing jurisprudence. Ignorance of the law by a judge can easily be the mainspring of injustice (Villanueva v.Judge

misconduct? A: YES. A judge should always be a symbol of rectitude and propriety, and 'should always comport himself in a manner that will raise no doubt whatsoever about his honesty. Here, the judge's act of misappropriating the money entrusted to him by litigants in connection with a case pending in his court constitutes gross misconduct. Moreover, the judge violated Circular No. 50-95 which provides that, fiduciary collections should be deposited with the Land Bank of the Philippines. Because of his actuations, the image of the judiciary was impaired (De Pacete v. Judge Carillo, A.M. No.

Buaya, A.M. No. RTJ-08-2131, November 22, 2010). Q: Judge Delos Santos averred that Judge Mangino of the MTC Tarlac approved the bail bond for provisional liberty of the accused Santos who was arrested and whose criminal cases were pending in Angeles City before him. It was also made to appear from the contents of the said bond that the accused appeared before notary public Ancanan in Makati City. According to the accused, she never went to Tarlac and appeared before said Judge Mangino. She also alleged that she never went to Makati City and appeared before Notary Public Ancanan. Is Judge Mangino guilty of grave misconduct?

MTJ-03-1473,August20, 2003). Judges should retirement

return

records

•

upon

Since the proper and efficient management of the court is the responsibility of the judge, he is the one directly responsible for the proper discharge of official functions. Thus, a judge is obliged to return to the court the records of the cases filed in his sala upon his retirement (OCA v. Retired Judge Carteciano, A.M. No. MTJ-07· 1664, February 18, 2008).

A: YES. Judges should be diligently acquainted with the law and jurisprudence. As an advocate of justice and a visible representation of the law, a judge is expected to keep abreast with and be proficient in the application and interpretation of the law. Here, by merely glancing at the bail bond application, the judge ought to know that he had absolutely no authority or jurisdiction to approve the bail bond of the accused as the case was pending with another court. By approving the bail bond application, the judge failed to exert such conscientiousness, studiousness, and thoroughness expected and demanded of a judge Oudge de /os Santos v. judge Mangino, A.M. No. MTJ-03·1496,}uly10, 2003).

SEC. 3, CANON 6, NCJC 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 the training and other facilities which should be made available, under judicial control, to judges. Service in the judiciary means a continuous study and research on the law from beginning to end. Judges are regarded as persons learned in the law. The maxim "ignorance -of the law excuses no one" has special application to judges (Ajeno v. Judge lnserto, A.M. No. 1098CFI, May 31, 1976).

SEC. 4, CANON 6, NC]C Judges shall keep themselves informed about relevant : developments · of international law, iniluding international conventions and other instruments establishing human rights norms.

Though good faith and absence of malice or corruption are sufficient defenses, such do not apply where the issues are so simple and the applicable legal principles evident and basic as to be beyond possible margin of error (Corpus

SEC. S, CANON 6, NC]C

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ETHICS A: YES, the OCA is correct. Judge Buenavlsta is guilty of gross inefficiency and warrants the imposition of administrative sanctions.. Under the 1987 Constitution, trial judges are mandated to decide and resolve cases within 90 days from submission. Corollary to this constitutional mandate, Section 5, Canon 6 of the NCJC requires judges to perform all judicial duties efficiently, fairly, and with reasonable promptness. An inexcusable failure to decide a case within the prescribed 90-day period constitutes gross inefficiency, warranting the imposition of administrative sanctions (Re:

Judges shall perform all Judicial duties, Including the delivery of reserved declsions, efficiently, fairly and with reasonable promptness. A judge's foremost consideration is the administration of justice. Thus, he should follow the time limit set for deciding cases. The Constitution mandates that all cases or matters filed before all lower courts shall be decided or resolved within 90 days from the time the case is submitted for decision. Judges are enjoined to dispose of the court's business promptly and expeditiously and decide cases within the period fixed by law. Failure to comply within the mandated period constitutes a serious violation of the constitutional right of the parties to a speedy disposition of their cases. It also , undermines the people's faith and confidence in the judiciary, lowers its standards and brings it to disrepute. Decision making, among other duties, is the mosi: important duty of a member of the bench

Report on the judicial Audit Conducted in the RTC, A.M. No. 06-9-525-RTC, June 13, 2012, PERLAS·B£RNABEJ.

(Salvador v. Judge Limsiaco, A.M. No. MTJ-08~ 1695, April 16, 2008).

The honor and integrity of the judicial system' is measured not only by the fairness and correctness of decisions rendered, but also by the efficiency with which disputes are resolved. The mandate to promptly dispose of cases or matters also applies to motions or interlocutory matters or incidents pending before the magistrate. Unreasonable delay of a judge in resolving a pending incident is a. violation of the gross inefficiency norms of judicial conduct and constitutes that warrants ~ the imposition of an administrative sanction against the defaulting magistrate (OCA v. Judge Tormis, A.M. No. MTJ-12·1817, March 12, 2013).

Q: During a judicial audit it was discovered that Judge Buenavista had a combined case load of more than 600 hundred cases in the 2 courts he presided and that he had submitted decisions beyond the mandated 90-day period. There were also cases in which there have been no action since the date of their filllng. Judge Buenavista states the reason for his belated actions were his old age, his failing eyesight, the death of. his wife the year prior, and the fact that he presided over two RTCs in a period of 4 years. The OCA recommended that Judge Buenavista be held administratively Hable and fined 10,000 for failing to decide cases and failing to manage the RTC. Is the OCA correct? UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTES

Q: Cabasares flied a complaint for Malicious Mischief against a certain Rodolfo Hebaya. The case was subsequently assigned to Judge Tandingco. As early as February 27, 2002, the case had been submitted for decision, but the judge did not pen a decision. He was charged with violation of Section 15 (1), '. Article VIII of the· Constitution and Canon 3, Rule 3.05 of the Code of Judicial Conduct, Is the judge guilty? A: YES. Judges should meticulously observe the periods prescribed by the Constitution for deciding cases because failure to comply with the said period transgresses the parties' constitutional right to speedy disposition of their cases. Thus, failure to decide cases within the ninety (90)-day reglementary period may warrant the imposition of administrative sanctions on the erring judge. However, the Court is not unmindful of circumstances that justify the delay in the disposition of the cases assigned to judges. When a judge sees such circumstances before the reglementary period ends, all that is needed is to simply ask the Court, with the appropriate justification, for an extension of time within which to decide the case. Evidently, respondent Judge failed to do any of these options (Cabasares v, Judge Tandinco.Ir., .4.M. No. MTJ-11-.1793, October 19, 2011).

Q: Pacifico Velasco was convicted by the Sandiganbayan for Graft and Corruption. But the hearing date for his arrest was pushed multiple times due to his ailing health and multiple surgeries. Leonardo Velasco, the private complainant, now charges the Associate Justice Vtllaruz, Jr., Justice Quiroz, and Justice Martires of the Sandiganbayan with grave misconduct for

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QUALITIES the orderly and speedy disposition of cases and, thus, should bejregarded as mandatory, the Court has nevertheless been mindful of the· plight of judges and has been understanding of circumstances that may hinder them from promptly disposing of their businesses and, as such, has allowed extensions of time due to justifiable reasons. However, Judge Regencia failed to proffer any acceptable reason in delaying the disposition of the ejectment case, thus, making her administratively liable for undue delay in rendering a decision (Dulong v. Judge Reqencia, A.M. No. MTJ-14-1841, June 2, 2014, PERLAS-BERNABE).

the multiple postponements stating that their actions caused undue delay for the execution of sentence. Are the Associate Justices administratively liable? A: NO, Misconduct means intentional wrongdoing or deliberate violation of a rule of law or a standard of behavior. To constitute an administrative offense, misconduct should relate to or be connected with the performance of the official functions of a public officer. In grave misconduct, as distinguished from simple misconduct, the elements of corruption, cleat intent to violate the law or flagrant disregard of an established rule must be established. Here, the actions of the Justices respecting the execution of the final judgment against the accused were shown to be in respectful deference to the Courts action on the various petitions filed by the former, who apparently exhausted what he perceived were valid available remedies under the law(Re: Complaint of Velasco, A.M. OCA JP/ No. 10-25SB-J,January 15, 2013, PERLAS-BERNABE).

•

On

February 2, 2000, Dulang filed an ejectment complaint before the MCTC presided by Judge Regencia. On May 4, 2009, Dulang moved for the resolution of the ejectment case given that the same had been filed as early as year 2000 and had already been submitted for resolution. However, notwithstanding the summary nature of the ejectment proceedings, Judge Regencia rendered a judgment dismissing the ejectment case only on February 18, 2011 or more than 11 years after its filing. Should Judge Regencia be held administratively liable for undue delay in rendering a decision? Q:

SEC. 6, CANON 6, NC]C 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 Ieyal representatives, court staff and others subject to their influence, direction or control. Besides possessing the requisite learning in the law, a magistrate must exhibit that hallmark judicial temperament of utmost sobriety and self-restraint which are indispensable qualities of every judge (Rodriguez v. Judge Bonifacio, A.M. No. RTJ-99-1510, November. 6, ZOOOJ. A magistrate should not descend to the level of a sharp-tongued, ill-mannered petty tyrant by uttering harsh words, snide remarks and sarcastic comments (Dela Cruz v. judge Carretas, A.M. No. RTJ-07-2043,, September 5, 2007). Judges are required to always be temperate, patient and courteous, both in conduct and in language.

A: YES. Judge Regencia should be held administratively liable for undue delay in rendering a decision. Section 5, Canon 6 of the NCJC provides that judges shall perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly, and with reasonable promptness. Here, the case was already submitted for resolution. Being an ejectment case, it is governed by the Rules of Summary Procedure which clearly sets a period of 30 days from the submission of the last affidavit or position paper within which a decision thereon must be issued. Despite this, Judge Regencia rendered Judgment only on February 18, 2011. While rules prescribing the time within which certain acts must be done are indispensable to prevent needless delays in

Q: Judge Belen was charged with conduct

unbecoming of a judge for humiliating, demeaning and berating a young lawyer who appeared in his sala. When the judge learned that the lawyer was an alumnus of MCQU and not of UP, the judge made the following statement: "You're not from UP. Then you cannot equate yourself to me because there is a saying and I know this not all law schools are created equal, not all lawyers are created equal despite what the Supreme Being stated that we all are created equal in His form and substance.'' Should the judge be disciplined? A: YES. The judge's sarcastic, humiliating, threatening and boastful remarks to a young

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JUDICIAL lawyer are improper. A judge must be aware that an alumnus of a particular law school has no monopoly of knowledge of the law. By hurdling the Bar Examinations, taking of the Lawyer's oath, and signing of the Roll of Attorneys, a lawyer is presumed to be competent to discharge his functions and duties as, inter a/ia, an officer of the court, irrespective of where he obtained his law degree. For a judge to determine the fitness or competence of a lawyer primarily on the basis of his alma mater is clearly an engagement in an argilmentum ad hominem. As a judge, he must address the merits of the case and not on the person of the counsel. Judges must be that even on the face of boorish behavior from those they deal with, they ought to conduct themselves in a manner befitting gentlemen and high officers of the court (Atry. Mane v. Judge Belen, A.M. No.RTJ-08·2119, June 30, 2008).

ETHICS (3) delegation to Process Server Atienza the performance of the functions and duties pertaining to a Clerk III. Is she administratively liable? A: YES. Judge Bandong is guilty of conduct prejudicial to the best interest of the service. For a judge to allow an activity, and an unofficial one at that, to take precedence over the conduct of hearings is a patent derogation of Sections 1 and 2 of Canon 6 of the New Code of Judicial Conduct Additionally, Judge Bandong's habit of watching television during office hours violates Section 7 of the same Canon 6 which requires Judges "not to engage in conduct incompatible with the diligent discharge of judicial ~uties." Judge Bandong's wanton disregard and mockery of the proper procedure in mediation of cases was tantamount to misconduct While courts and their personnel are enjoined to assist in the successful implementation of mediation, A.M. No. 01-10-05-SC-PHILJAdoes not authorize them to conduct mediation themselves (Re: Anonymous Complaints against Jud9eBandong, A.M. No. R.TJ-17-2507, October 10,2009).

Q: Judge Ante Jr. was charged with grave

misconduct and acts unbecoming of a judge. It was alleged that when the court employee placed the docket book on top of the filing cabinet, the same fell on the floor causing a loud sound. Unexpectedly, the judge shouted saying "Why did you throw the docket book? You get out of here, punyeta, we don't need you!" The judge also threw a monobloc chair at the court employee. Should the judge be disciplined?

NOTE: When a judge, along with two other

people, acted as real estate agents for the sale of a parcel of land for which he agreed to give a commission of Pl00,000 to each of his companions, and after the transaction was completed only gave the complainants PZS,000 each, the high Court held that the judge violated the section of the prior Code of Judicial Conduct (Catbagan v. Judge Barte, A.M. No. MTJ-

A: YES. The judge, for shouting invectives and hitting complainant with a chair displayed a predisposition to use physical violence and intemperate language which reveals a marked lack of judicial temperament and self-restraint - traits which, aside from the basic equipment of learning in the law - are indispensable qualities of every judge (Briones v. Judge Ante jr; A.M. No.MTJ-02-1411, April 11, 2002).

•

02-1452, April 6, 2005).

. · . · : co~E· or 1umc1AL coseucr (ROLE 137; MARCH i4, 1989, AS AIVIENDE~) . .

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SEC. 7, CANON 6, NCJC

Judges shall not engage in conduct incompatible with the diligent discharge of judicial duties.

Applicability

will

A judge shall not accept duties that interfere with his devotion to the expeditious and proper administration of his official functions (Pineda, 2009).

CANON1

A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE

Q: Judge Bandong was accused of the following: (1) watching television during office hours: (2) predeliction to delegate mediation of cases to court personnel; and

(R) \~.,

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This code applies suppletorily to the Bangalore Draft

RULE 1.01, CANON 1

A judge should be; the embodiment of competence, integri~ and independence.

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UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTES

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QUALITIES NOTE: Failure to decide cases and other matters within the reglementary period constitutes gross inefficiencyand warrants the imposition of administrative sanction against the erring magistrate. Judges must decide cases and resolve matters with dispatch because any delay in the administration of justice deprives litigants of their right to a speedy disposition of their case and undermines the people's faith in the [udlclary, Indeed, justice delayed is justice denied (Angelia v. Judge Grageda, A.M. No. RTJ10-2220,February 7, 2011). RULE 1.02, CANON 1 A judge should administer impartially and without delay.

reasons, the Rules of Court may not be ignored , at will and at random to the prejudice of the rights of another. Rules of procedure are intended to ensure the orderly administration of justice and the protection of substantive rights in judicial and extrajudicial proceedings. In this case, the reason of Judge Canoy is hardly persuasive enough to disregard the Rules (Pantilo Ill v. judge Canoy, A.M. No. RT]-112262, February 9, 2011). RULE 2.02, CANON Z A judge should not seek publicity for personal vainglory.

justice

RULE 1.03, CANON 1 A judge. should be vigilant against any attempt to subvert the independence of the judiciary and resist any pressure from whatever source.

CANON2 A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETYIN ALL ACTIVITES.

RULE 2.03, CANON 2

• A judge shall not allow family, social, or other relationships to influence judicial. conduct or judgment. The prestige of judicial office shall ,wt be used or lent to advance the private interests of others, nor convey or permit others to convey the impression that they are in special position to influence the judge. Q: Judge Belen filed a complaint for Estafa against complainant's father. Judge Belen started harassing and threatening the complainant by filing of several cases against the latter. He -also wrote using his personal stationery· several letters addressed to certain local government authorities and employees requesting information on complainant's piggery and poultry business and advising them of the alleged violations by the complainant of the National Building Code and certain environmental laws. An administrative complaint was filed against the judge for violation of the New Code of Judicial Conduct. ls the judge liable?

RULE 2.01, CANON 2 A judge should so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary. Q: Judge Canoy was charged with several

counts of gross ignorance of the law and/or procedures, grave abuse of authority, and appearance, of impropriety (Canon 2, CJC) for granting bail to Melgazo, the accused in a criminal case, without any application or petition for the grant of bail filed before his court or any court. Also, he did not require Melgazo to sign a written undertaking containing the conditions of the bail under Sec. 2, Rule 114 to be complied with by Melgazo. Thus, Judge Canoy ordered the police escorts to release Melgazo without any written order of release. Should respondent Judge Canoy be held administratively liable?

A: YES. While the use of the title is an official designation as well as an honor that an incumbent has earned, a line still has to be drawn based on the circumstances of the use of the appellation. While the title can be used for social and other identification purposes, it cannot be used with the intent to use the prestige of his judicial office to gainfully advance his personal, family or other pecuniary interests. Nor can the prestige of a judicial office be used or lent to advance the private interests of others, or to convey or permit others to convey the impression that they are in a special position to influence the judge. To do any of these is to cross into the

A: YES. Granting of bail without any application or petition to grant bail is a clear deviation from the procedure laid down in Sec. 17 of Rule 114. As regards the insistence of Judge Canoy that such may be considered as "constructive bail," there is no such species of bail under the Rules. Despite the noblest of

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v. Judge

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A Judge should ~~frain ff.q~ influ.f!ncing in: : . any !~a,;mer i~foutcfl_n11(~f!ltt{t,ati_Q~ ;Qr; Iii dispu(e pending before atiothei', :toilrti:or ;;i administrative agency. · · ·

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· /\DJUOl(/\TIVE RESPONSIBII.ITlES . CANON3 A JUDGE SHOULD P:~R.fOJVI ,-OFFICIAL DUTIES HONESTL v r : W.ltli IMPARTIALt1fYAND DI~IAEf'{f~ . . ,;,. .

~p.

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Anything Jess is gross ignorance of the law. Judges· should exhibit more than just a cursory acquaintance with the statutes and procedural rules and should be diligent in keeping abreast wi\:li developments in t'~w and jurisprudence.

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Jt'vii?S, :iilt~efore,i'in~~rt~'b~~f Up~!l respondent 1the judge to forward records of the case to the Office of the Provmctal Prosecutor for preliminary investigation, instead of conducting the preliminary investigation himself upon amendment of the law stripping the power of first level court judges to conduct preliminary investigation (Conquil/a v. Judge Bertiando( A.M. No.M.TJ-09·1737, February 9, 20i1J. !

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RULE 3.01, CANON 3

RULE 3.02, CANON 3

A Judge, shall be faithful to the law and maintain professional competence.

In every case, a judge shall endeavor diligently to ascertain the facts and the applicable law unswayed by partisan interests, public opinion or fear of criticism.

A Judge may not b~ administratively sanctioned from mere errors cH'.jµdgm~t in . the absence of showing of\ ;mr b\itt faithi f~aucl, ·; malice, gross ignorance, corrupt purpose; 'or a deliberate intent to do an injustice on his or her part Judicial officers cannot be subjected to administrative 'disciplinary actions for their. performance. of ·duty in good faith '(Atoe v. Justices Came/lo et al; f.P.l .. No. 16;241 ·CA·J,

November 29, 2016).

A judge is expected to decide cases only on the basis of the applicable law on the matter, not on any other extraneous factors, such as public opinion, personal convictions and partisan interests {Lapena, 2009). RULE 3.03, CANON 3 A judge shall maintain order and proper

·

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Indeed, while a judge may not be held liable for gross ignorance of the law for every erroneous order that he renders, this does not mean that a judge need not observe due care in the performance of his/her official functions. When a basic principle of law is involved and when an error is so gross and patent, error can produce an inference of bad faith, making the judge liable for gross ignorance of the law (Lorenzana v. Judge Austria. A.M. No. RTJ-092200, April 2, 2014). Q: Conquilla was charged with Direct Assault after respondent Judge B conducted a preliminary : investigation . and found probable cause to hold the complainant for trial for the said crime. Complainant then filed an administrative complaint, alleging that under A,M, No. 05·08·[2]6·SC, first level court Judges no longer have the authority to conduct preliminary investigations. Is the respondent fudge guilty of gross ignorance of the law?

RULE 3.04, CANON 3

A Judge should be patient, attentive, and courteous to lawyers, especially the inexperienced, to litigants, witnesses, and others appearing before the court A judge should avoid ,unconsciously falling into the attitude of mind that the litigants are made for the courts, instead of the courts for the litigants. ,.

'

I

A: The Code of Professional Responsibility requires lawyers to observe and maintain respect for judicial officers (Catton 11, CPR). On the other hand, the Code of Judicial Conduct requires judges to be patient, attentive and courteous to lawyers (Rule 3.03, C]C). In a word, lawyers and judges owe each other mutual respect and courtesy.

A: YES. When a law or a rule ls basic, judges owe it to their office to simply apply the law. (•""""'•) ~~,I'

UNIVE~·s,ry orSANTolToMAS 2 0 1 9 Go L DEN o TE s .

N

'

Q: How would you characterize the . relationship between the judge and a • lawyer? Explain. (1996 Bar)

198

•

QUALITIES RULE 3.0S, CANON 3

•

Constitution mandates that cases or matters filed with the lower courts must be decided or resolved within three (3) months from the date they are submitted for decision or resolution. Moreover, Rule 3.05 of the Code of Judicial Conduct directs judges to 'dispose of the court's business promptly and decide cases within the required periods.' Judges must closely adhere to the Code of Judicial Conduct in order to preserve the integrity, competence, and independence of the judiciary and make the administration of justice more efficient Failure to decide cases within the .reglementary period, without strong and • justifiable reasori, constitutes gross inefficiency warranting the imposition of administrative sanction on the defaulting judge (Re: judicial

A judge shall dispose of the court's business promptly and decide cases within the required periods. Article Vlll, Section 15(1) of the 1987 Constitution mandates lower court judges to decide a case within the reglementary period of 90 days. The Code of Judicial Conduct under Rule 3.05 of Canon 3 likewise enunciates that judges should administer justice without delay and directs every judge to dispose of the court's business promptly within the period prescribed by law. Rules prescribing the time within which certain acts must be done are indispensable to prevent needless delays in the orderly and speedy disposition of cases. Thus, the 90-day period is mandatory (Re: Cases Submitted for Decision Before Jpdge Andoy, A.M. No. 09-9-163-MTC, May 6, 2010).

Audit Conductedin the RTC, Branch 20, Cagayan De Oro City, Misamis Oriental, A.M. No. 14-11350-RTC, Dec. 5, 2017) .. ,.f. "<'

'

Prompt disposition of cases is attained basically through the efficiency and dedication to duty of judges. If judges do not possess those traits, delay in the disposition of cases is inevitable to the prejudice of the litigants. Accordingly, judges should be imbued with a high sense of duty and responsibility in the discharge of their obligation to administer justice promptly (Garado v. judge Gutierrez-

RULE 3.06/CANON 3

While a judge may, (: to promote justice, prevent waste of time or clear up some obscurity, properly intervene in the presentation of evidence during the trial, it should always be borne in mind that undue interference may prevent the proper presentation of the cause or the ascertainment of truth.

Torres, A.M. No. MTj-11-1778, June 5, 2013). RULE 3.07, CANON 3 Justice delayed is often justice denied, and delay ln the disposition of the cases erodes the faith and confidence of the people in the Judiciary, lowers its standard and brings it into disrepute (Rosaura v.Judge Villanueva,A.M. No. RTJ-99-1433,June 26, 2000).

A Judge .~hould abstain from making public comments on any pending or impending . case and should-require similar restraint on the part of court personnel. · '.ADMINISTRATIVERESPONSIBILITIES RULE 3.081 CANON 3

Q: The present administrative matter arose from the judicial audit conducted on Br. 20 of the RTC of CDO then presided by Judge Macabaya. The audit team found that out of the 573 cases examined by it (1) 69 cases were submitted for decision but have yet to be decided despite the lapse of the 90-day period; (2) 33 cases with pending incidents were not yet resolved despite the lapse of the reglementary period to resolve them; and (3) 155 cases were dormant and unacted upon for a considerable length of time. Is Judge Macabaya guilty of gross misconduct?

A judge should diligently discharge administrative responsibilities, maintain professional competence in court management, and facilitate the performance of the administrative functions or other judges and court personnel. RULE 3.09 CANON 3 A judge should organize and supervise the court personnel to ensure the prompt and efficient dispatch of business, and require ai: all times the observance of high standards of public service and fidelity.· 1

A: YES. The office of the judge exacts nothing less than faithful observance of the Constitution and the law in the discharge of official duties. Section 15 (1), Article Vlll of the

RULE 3.10, CANON 3

A judge should take or initiate appropriate disciplinary measures ('

199

UNIVERSITY OF 'SANTO TOMAS~ FAf.UL1'Y O'F CIVIL LAW

·y·

:-1

·:·:

I

•

JUDICIAL

ETHICS

against lawyers or court personnel for unprofessional conduct of which the judge may have become aware.

RULE 3.12, CANON 3 A judge should take no part in a proceeding where the judge's impartiality might reasonably be questioned.

RULE 3.11, CANON 3 These cases include proceedings where:

A judge should appoint commissioners,

receivers, trustees, guardians, administrators and others strictly on the basis of merit and qualifications, avoiding nepotism, and favoritism. Unless otherwise allowed by law, the same criteria should be observed m recommending appointment . of . court. personnel. Wfzere the · payment of compensation Is allowed, It should be reasonable and commensurate with the fair value of services rendered. .

· .. · . DISQUALIFICATION

. . · · ·

Atty. G was invited to appear as

amicus curiae, One of the Judges hearing the tax case is the father of Atty. G. The counsel for the respondent moved for the inhibition of the judge in view of the father-son relationship. ls there merit to the motion? Decide. (1996 Bar]

A: NO, there is no merit to the motion, Rule 3.12 of the CJC provides that "a judge should take no part where the judge's impartiality

~

might reasonably be questioned. Among the instances for the disqualification of a judge is that he is related to a party litigant within the sixth degree or to counsel within the fourth degree of consanguinity or affinity. But this refers to counsel of the parties. As amicus, he represents no party to the case. There is, therefore, no ground to fear the loss of the judge's impartiality in this case if his son is appointed amicus curiae.

In every instance.she jud,ge shall indicate the legal reason for inhibition. NOTE: A motion for inhibition

cannot be granted on mere imputation of bias or partiality. It must be for just and valid reasons (Rodica v. Atty. Lazaro, 2013).

..

••

1,:,,

UNIVERSITY OF SANTO 2 0 1 9 GO L D E N N o TES

A.C.

No. 92S9, March 13,

REMITTAL'OF DISQUALIFICATION

RULE 3.13, CANON 3 · A judge disqualified by the terms of Rule 3.12 may, instead of withdrawing from the proceeding, disclose on the record 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 insubstantial, the judge may then participate in the proceeding.

(Santos v. Judge Lacurom, A.M. No. RTJ-04· 1823, August 28, 2006).

\

•

,1·

NOTE: A judge's close friendship with a person who is a party. to his case does not render him/her guilty of violating any canon of judicial ethics as long as his friendly relations did not influence his official conduct as a judge. However, it would have been more prudent if the judge concerned avoided hearing the cases where his friend was a party because their close friendship could reasonably tend to raise suspicion that the farmer's social relationship would be an element In his determination of the case

fi)

others,

a. The judge has personal knowledge of disputed evidentiary facts concerning the proceeding; b. 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; c. The judge's ruling in a lower court is the subject of review; d. The judge is related by consanguinity or affinity to a party litigant within the sixth degree or to counsel within the fourth degree; e. The judge knows the judge's spouse or child has a ftnancial interest; as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy or in a party to the proceeding, f. Any other interest that could be substantially affected by the outcome of the proceeding.

Q: In a hearing .before the Court of Tax Appeals,

among

TOMAS

200

•

•

QUALITIES The agreement, signed by the parties, shall be incorporated in the record of the proceeding.

CANON 5, A JUDGE SHOULD REGULATE EXTRAJUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH JUDICIAL DUTIES. (1995, 1997, 1999, 2000, 2002 Bar)

CANON4 A JUDGE MAY, WITH DUE REGARD TO OFFICIAL DUTIES, ENGAGE IN ACTIVITIES TO IMPROVE THE LAW, THE LEGAL SYSTEM AND THE ADMINISTRATION OF

· ADVOCATIONAL, CIVIL AND CHARITABLE

..

,

ACTlVITIES

·

• RULE 4.01, CANON 4

RULE S.01, CANON 5

A judge may, to the extent that the following • activities do not impair the performance of judicial duties or cast doubt on the judge's impartiality:

, A judge may engage itt the following

a. Speak, write, lecture, teach of participate in activities concerning the law, the legal system and the administration ofjustice; b, Appear at a public hearing before a legislative or executive body on matters concerning the law, the legal system or the administration of justice and otherwise consult with them on matters concerning the administration ofjustice; c. Serve on any organization devoted to the improvement of the law, the legal system or the administration ofjustice.

·1, Write, teach and speak on non-leqol

activities provided that they do not interfere with the performance of judicial duties or detract from dignity of the court: subjects: 2. Engage In the arts, sports, and other special recreational activities; 3. Participate in civic and charitable activities; 4. Serve as an officer, director, trustee, or non-legal advisor of non-profit or non· political, educational, religious, charitable, fraternal, or civic organization. .

FINANCIAL ACTIVITIES

.

RULE S.02, CANON 5 A judge shall refrain from financial and

Q: Judge Cristina has many law-related

activities. She teaches law and delivers lectures on law. Some people in the government consult her on their legal problems. She also serves as director of a stock corporation devoted to penal reform, where she participates in both fund raising and fund management. Which of the aforesaid activities is she allowed to do? (2011 Bar)

business dealings that tend to reflect adversely on the court's impartiality, interfere with the proper performance of judicial activities or increase involvement with lawyers or persons likely to come before the court A judge should so manage investments and

other financial interests as to minimize the number of cases giving grounds for disqualifications.

A: She can teach and deliver lectures on law (Sec. lO{a) Canon 4, NC]C) but she cannot give legal advice since it is considered as practice of law to which judges are prohibited .to do (Sec. 11 Canon 4, NC]C). Also, she cannot serve as director of a stock corporation since the same is incompatible with the diligent discharge of judicial duties (Sec. 7 Canon 6, NCJC). She can be a director of her Family Corporation but not part of the management

Rule regarding financial activities A judge shall refrain from financial business dealings that tend to:

and

11

1. Reflect adverse)/: on the court's impartiality; ·: 2. Interfere with the proper performance of judicial activities; or ·; 3. Increase involvement with lawyers or persons likely to come before the court (Rule 5.02, CJC). By allowing himself to act as aqent in the sale of the subject property, respondent judge has

201

U NlVERSITY OF SANTO TOMAS¢? FACULTY

OF CIVIL LAW

•..,.

JUDICIAL •

ETHICS immediate family, and then only if such service will not interfere with the proper performance of judicial duties. "Member of immediate family" shall be limited to the spouse and relatives within the second degree of consanguinity, As a family fiduciary, a Judge shall not: 1, Serve In proceedings that might come before the court of said Judge: or 2. Act as such contrary to rules 5.02 to 5.05.

increased the possibility of his disqualification to act as an impartial judge in the event that if a dispute involving the said contract of sale arises. Also, the possibility that the parties to the sale might plead before his court is not remote and his business dealings with them might not only create suspicion as to his fairness but also to his ability to render It in a manner that ts free from any suspicion as to lts fairness and Impartiality, and also as to the judge's integrity (Alloro v.Judge Barte, A.M. No. MT}-02-1443,July 31, 2002).

Member of immediate family NOTE: A judge shall make full financial disclosure as required by law (Rule 5.08, C}C).

Limited to the spouse and relatives within the second degree of consanguinity.

RULES.03, CANON5 Subject to the provisions of the proceeding rule, . a judge may hold and manage investments but should not serve as officer, director, manager or advisor, or employee of any business except as director of a family business of the judge.

RULE5.07, CANON5 A judge shall not engage in the private practice of law. Unless prohibited by the Constitution or law, a judge may engage in the practice of any other profession provided that such practice will not conflict or tend conflict with judicial functions. '

Rule on judges having investments

to

GR: A judge may hold and manage investments but should not serve as: 1. 2. 3. 4. 5.

XPN: As director of a family business judge (Rule S.03, C]C).

XPN: 1. Prohibited of the

..

FINANCIALDISCLOSURE

The obligation of members of the Judiciary to file their respective SALNs is not only a statutory requirement but forms part of the mandatory conduct expected of a judge so that an "honorable competent and independent Judiciary exists to administer justice and thus promote the unity of the country, the stability of government, and the wellbeing of the people"(Republic v.

·

RULE5.06, CANON5 A Judge should not serve as the executo1; administrator, trustee, guardian, or other fiduciary, except for the estate, trusts, or person of a member of the UNIVERSITY OF SANTO TOM AS 2019 GOLDEN NOTES .

or law;

RULE5.08, CANON5 A judge shall make full financial disclosure as required by law.

RULE5.05, CANON5 No information acquired in a judicial capacity shall be sued or disclosed by a judge in any ftnancial dealing or for any other purpose not related to judicial activities. : ..

by the Constitution

or Practice will conflict or tend to conflict v,ith judicial functions (Rule 5.07, C]C).

2.

RULE5.04, CANON5 A judge or any immediate member of the family shall not accept a gift, bequest, factor or loan from anyone except as may be allowed by law.

FIDUCIARYACTIVITIES

•

GR: A judge may engage in the practice of any other profession, except private practice oflaw (Rule 5.07, C]C).

An officer Director Manager Advisor Employee of any business

Sereno, G.R. No. 237428, May 11, 2018). The filing purposes

202

of SALN is important for of transparency and

•

• QUALITIES c. Use or disclose information acquired in a judicial capacity in any financial dealing or for any other purpose not related to judicial activities (Rule 5.05,

accountability that failure to comply with such requirement may result not only in dismissal from public service but also in criminal liability (Republic v. Sereno, C.R. No. 237428, May 11, 2018). .

C]C) d. Serve as the executor, administrator, trustee, guardian, or other fiduciary (Rule 5.06, C]C)

. .EXTRJ\JUDICIAL APPOINTMENTS · ·. RULE 5.09, CANON 5

XPN: For the estate, trusts, or person of a member of the immediate family, and only if such service will not interfere with the proper performance of judicial duties (Rule 5.06, CJC)

A judge shall not accept appointment or designation to any agency performing ' quasi-judicial or administrative functions. · , · .'

POU:flCALACTIVITIES

. ·

.

e. Engage in the private practice of law (Rule 5.07, C]C) f. Engage in practice of profession prohibited by the Constitution or when practice conflicts with judicial functions(Ru/e 5.07, C]CJ. g. Accept appointment or designation to any agency performing quasi-judicial or administrative functions (Rule 5.09, CJC) h. Make political speeches, contribute to party funds, publicly endorse candidates for political office or participate in other partisan political activities (Rule 5.10, C]C).

RULE 5.10, CANONS

A judge is entitled to entertain personal views on political questions. But to avoid suspicion of political partisanship, a judge shall not make political speeches, contribute to party funds, publicly endorse candidates for political office or participate in other partisan political activities. The phrase "partisan political activities," in its statutory context, relates to acts designed to cause the success or the defeat of a particular candidate or candidates who have filed certificates of candidacy to a public office in an election. The taking of an oath of office by any incoming President of the Republic before the Chief Justice of the Philippines is a traditional official function of the Highest Magistrate. The assailed presence of other justices of the Court at such an event could be no different from their appearance in such other official functions as attending the Annual State of the Nation Address by the President of the Philippines before the Legislative Department (Estrada v. Sandiganbayan, G.R. No. 159486·88, November 25, 2003). Prohibited Judges

Extrajudicial

Activities

•

of

a. Engage in a vocational, civil and charitable activities that interfere with the performance of of judicial duties or detract from the dignity of the court (Rule 5.01, CjC) b. Accept a gift, bequest, factor or loan from anyone (Rule 5.04, CfCJ XPN: As may be allowed by the law

(Rule 5.04, C]C)

203~

UNrVERSITV OF SANTO TOMAS¢ FA CUI.TY OF CIVIL LAW ...

•

JUDICIAL

ETHICS Condition Court may Justices of disbarred accordance

DISCIPLINE OF THE MEMBERS OF THE JUDICIARY

Power to discipline members of the bench

NOTE: While it is the duty of the court to investigate and determine the truth behind every matter in complaints against judges and other court personnel, it is also their duty to see to it that they are protected and exonerated from baseless administrative charges. The Court will not shirk from its responsibility of imposing discipline upon its magistrates, but neither will it hesitate to shield them from unfounded suits that 'serve to disrupt rather than promote the orderly administration of justice [Ocenar v. Judge Mabutin, A.M. No. MT]

The Supreme Court shall have the administrative supervision over all courts and the personnel (Section 6, Art VIII, 1987

Constitution). The Court en bane has the power to discipline all judges of lower courts including justices of the Court of Appeals (Section 11, Art Vll!, 1987

Constitution). Q: Differentiate how administrative penalties are imposed on judges and justices of the lower courts in contrast to other court personnel.

A: In imposition

of penalties, guidelines shall be observed:

05-1582, February 28, 2005). A judge may be disciplined for acts committed before his appointment to the judiciary

the following

(a) Rule 140 of the Rules of Court -shall exclusively govern administrative cases involving judges or justices of the lower courts. If the respondent judge or justice of the lower court is found guilty of multiple offenses under Rule 140 of the Rules of Court, the Court shall impose separate penalties for each violation; and (b) The administrative liability of court personnel (who are not judges or Justlces of the lower courts) shall be governed by the Code of Conduct for Court Personnel, which incorporates, among others, the civil service laws and rules. If the respondent court personnel is found guilty of multipie administrative offenses, the Court shall impose the penalty corresponding to the most serious charge, and the rest shall be considered as aggravating circumstances {Boston Finance v. Judge

It is settled that a judge may be disciplined for acts committed prior to his appointment to the judiciary. In fact, even the new Rule itself recognizes this, as it provides for the immediate forwarding to the Supreme Court for disposition and adjudication of charges against justices and judges before the IBP, including those filed prior to their appointment to the judiciary (Heck v. Judge Santos, A.M. No.

DISCIPLINE Of THE MEMBERS OF TIIE · · . · . ·: SUPIU~ME COURT . . . Impeachment

• · servants from office as an assurance against abusive officials in the country [Impeachment

Primer, Official Gazette, 2012). Object of impeachment The object of impeachment is solely to determine whether the official is worthy of the trust conferred upon him/her. It is not a determination of criminal guilt or innocence as in criminal case (Impeachment Primer, Official

Gazette, 2012).

Judges and justices, being lawyers, may also be disbarred, if found guilty of certain crimes and/or other causes for disbarment under the Rules of Court.

TOMAS

•

It is a constitutional process of removing public

Disbarment of judges and justices

UNIVERSITY OF SANTO 2019 GOLDEN NOTES

•

RT]·Ol ·1657, 23 February 2004).

Gonzales, AM No. RTJ-18-2520, October 9, 2018, PERLAS-BERNABE).

(j)

before Justices of the Supreme be disbarred the Supreme Court in order to be must first be impeached in with the Constitution.

The nature of imp~:achment proceedings against Supreme Courtjustices is "sui qeneris" or "a class of its own". '

i

204 ;~

jl

DISCIPLINE

OF MEMBERS

Grounds for impeachment 1.

2. 3. 4.

5.

OF THE JUDICIARY 12. Senate issues summons to respondent 13. Respondent appears and files answer 14. Senate receives testimonial and documentary evidence 15. Senator-judges interpose questions 16. Submission for voting (To convict or to acquit)

Treason; Bribery; Other High Crimes; Graft and Corruption; and Betrayal of Public Trust (Sec. 2 Art. XI, 1987 Constitution)

•

• Fast track procedure for impeachment· Impeachable officers 1.

2. 3.

4. 5.

If an impeachment complaint or resolution is filed by at least one-third (1/3) of all members of the House, the Articles of Impeachment shall be sent to Senate for trial.

The President; Vice-President; Members of the Supreme Court; Members of the Constitutional Commissions; and Ombudsman

Determination for conviction or acquittal Senators are expected to vote according to their conscience. The standard of proof required is NOT "proof beyond reasonable doubt" because it is not a criminal trial. Rather, it is a political process (Impeachment Primer, Official Gazette, 2012).

All other public officers and employees may be removed from office as provided by law, but not by impeachment (Sec. 2 Art. XI, 1987 Constitution). The Philippine Congress holds the sole power in impeachment process. 1. 2.

Votes needed for conviction

House of Representatives - initiates all cases of impeachment. Senate - tries and decides on all the cases.

A vote of at least two-thirds (2/3) of all members of the Senate .for any one article of impeachment ;

f

Who can file an impeachment complaint 1. 2.

NOTE: 16 votes are required to convict on any article while 8 negative votes can prevent conviction on any article. ·

Any member of the House of Representatives Any citizen with an endorsement of any member of the House of Representatives.

Effect of conviction Removal from office. The Senate can additionally impose penalty of disqualification from holding any office in the Philippine government.

Procedure of impeachment 1.

Initiate impeachment through filing of a verified complaint 2. Complaint is included in Order of Business within 10 session days 3. Complaint is referred to the proper committee within 3 session days 4. Committee conducts hearing 5. Committee votes 6. If YES, the matter will be referred to the Plenary within 60 days. 7. Plenary votes - at least 1/3 vote is required 8. If at least 1/3 vote is attained, Resolution and Articles of Impeachment are referred to Senate 9. House elects its prosecutors 10. Senate as plenary body adopts its rules on impeachment 11. Senate convenes as impeachment court

However, the party convicted shall nevertheless be subject to prosecution, trial, and punishment according to law. Criminal liability must be established by criminal trial {Impeachment Primer, OfficialGazette, 2012). . · . .

IMPEACHMENT ETHICAL ASPECTS

.

Constitutional provisions on the accountability of public officers Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, arid efficiency, act with patriotism and justice, and

• 205

UNIVERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW

JUDICIAL lives {Sec. 1, Article

lead modest

ETHICS net worth and financial and business interests. Hence, a court interpreter who failed to include in her SALN rental payments she received from a market stall was! dismissed from service

Xl, 1987

Constitution), Nature of public office

(Rabe v. Interpreter; Flores, A.M. No. P-971247, May 14, 1997).. The Senator-judges ruled that the law applies to all, including the Chief Justice of the Philippines, thus, his failure to include his dollar accounts in his SALN warrants his impeachment from office.

A public office is a public trust It is not to be understood as a position of honor, prestige and power but a position of rendering service to the public (Sec. 1, Art. XI of the Constitution).

Principle of accountability Q:

Law

on Secrecy

of Foreign

SALN? A: NO. The issue is not the conflict between the FCDA requiring secrecy of foreign currency deposits and the disclosure required by the SALN law, but the Constitution which requires public officials to declare their assets and does not distinguish between peso and foreign accounts (Senator Judge Pangilinan).

of the Constitution). Purpose of impeachment in relation to the accountability of public officers Its purpose is to protect the people from official delinquencies or malfeasances: It is therefore primarily intended for the protection of the State, not for the punishment of the offender (Gutierrez v. The House of

Representatives, 2011).

Is the

Currency Deposit Account (FCDA) a defense in failing to include a dollar deposit in a

It sets down the mandate that all government officials and employees, whether they be the highest in the land or the lowliest public servants, shall at all times be answerable for their misconduct to the people from whom the government derives its powers (Sec. 1, Art. XI

•

The Supreme Court in one case said that the FCDA cannot be used as a haven for the corrupt and the criminals. To interpret it in the manner that the Chief Justice would want ... is to say that the law could be used as a haven to hide proceeds o: criminal acts (Senator Judge

l

G.R. No. 193459, February 15,

· Drilon). Importance of maintaining public trust in public offices

Mandate of the Chief Justice to disclose his statement of assets and liabilities

It is essential that responsible and competent public officers be chosen for public office to maintain the faith and confidence of the people to the government, otherwise it becomes ineffective. No popular government can survive without the confidence of the people. It is the lone guarantee and justification of its existence

1.

(Sec.1, Art XI of the Constitution). ETHICAL LESSONS FROM THE FORMER . CHIEF JUSTICE CORONA'S IMPEACHMENT Reason for

CJ Corona's

·

Impeachment 2.

He was convicted under Article II of the Articles of impeachment, which is the failure to disclose to the public his statement of assets, liabilities, and net worth as required under sec. 17, Art. XI of the 1987 Constitution, by a vote of 20-3. NOTE: It is the "obligation" of an employee to submit a sworn statement. as the "public has a right to know" the employee's assets, liabilities,

UNIVERSITY OF SANTO TOMAS 2019 GOLDEN NOTES

206

1987 Constitution· Section 17. A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabtlities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with' general or flag rank, the declaration shall be disclosed to the public in the manner provided by law. R.A. 6713 · Section 8. Statements and Disclosure. Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households.

•

DISCIPLINE

OF MEMBERS

employees by reason of their office and not made available to the public; b. Diplomatic correspondence; c. Closed door cabinet meetings and executive sessions of either house of Congress; and d. Internal deliberations of the Supreme Court

Statements of Assets and Liabilities and Financial Disclosure. - All public officials and employees, except those who serve in an honorary capacity, laborers and casual or temporary workers, shall file under oath their Statement of Assets, Liabilities and Net Worth and a Disclosure o'f Business Interests and Financial Connections and those of their spouses and unmarried children under eighteen (18) years of age living in their households.

•

Probity It is the uncomprormsmg adherence to the highest principles and ideals or impeachable integrity [Webster's 3rd New International Dictionary ).

The Statements of Assets, Liabilities and Net Worth and the Disclosure of Business Interests and Financial Connections shall be filed by: xxx (2) Senators and Congressmen, with the Secretaries of the Senate and the House of Representatives, respectively; Justices, with the Clerk of Court of the Supreme Court; Judges, with the Court Administrator; and all national executive officials with the Office of the President

Importance of probi~ as a quality of a magistrate Canons 3 and 4 of thejiew Code of Judicial Conduct mandate, respectively, that "judges shall ensure that not bnly is their conduct above reproach, but that it is perceived to be so in the view of the reasonable observer" and that "judges shall avoid improprieties and the appearance of impropriety in all of their activities." These very stringent standards of decorum are demanded of all magistrates and employees of the courts. As such, those who serve in the judiciary, particularly justices and judges, must not only know the law but must also possess the highest degree of integrity and . probity, and an unquestionable moral uprightness both in their public and private lives [Veloso v. Judge Caminade, A.M. No. RT]· 01-1655, July 8, 2004).

Basis for the public's right to inquire upon the statement of assets and liabilities of public officers The postulate of public office is a public trust, institutionalized in the Constitution to protect the people from abuse of governmental power. This would certainly be mere empty words if access to such information of public concern is denied. The right to information under Section 7, Article III of Constitution goes with the constitutional policies of full public disclosure and honesty in the public service. It is meant to enhance the widening role of the citizenry in governmental decision-making as well asin checking abuse in government (Valmonte v. Belmonte,Jr.,

OF THE JUDICIARY

Integrity It is a steadfast adherence to a strict moral or ethical code. It is honesty and honorableness put into one(Republic v. Sereno, G.R. No. 237428, May 11, 2018).

G.R. No. 74930, February 131989). Observance of integrity in the judiciary

Established limitations to the right to information, with its companion right of access to official records 1. 2. 3. 4·.

In the judiciary, moral integrity is more than a cardinal virtue, it is a necessity. The exacting standards of conduct demanded from judges are designed to promote public confidence in the integrity and impartiality of the judiciary. When the judge himself becomes the transgressor of the law which he is sworn to apply, he places his office in disrepute, encourages disrespect for the law and impairs public confidence in the integrity of the ~ judiciary itself (lachicav.Judge Tormis, A.M. No.

National security matters and intelligence information Trade secrets and banking transactions Criminal matters Other confidential information. Examples: a. Confidential or classified information officially known to public officers and

MTJ-05-1609,

207

September 20, 2005).

UNIVERSITY

'

OF S.ANTO TOMAS~

FACULTY OF CIVIL LAW

•

JUDICIAL Importance of maintaining the confidence of the people upon the Judiciary

not appropriate, unless the assailed order or decision is tainted with fraud, malice, or dishonesty. As an established rule, an administrative, civil or criminal action against a judge cannot be a substitute for an appeal (Fernandez et al. v. Justices Bato, tr,

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 administered justice. 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 in their 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 (Tan v. Judge Pacuribot: A.M. No. RT]-06-1982,

Dicdican, A.M. OCA February 19, 2013).

0

The acts of a judge in his judicial capacity are not subject to disciplinary action. In the absence of fraud, malice or dishonesty in rendering the assailed decision or order, the remedy of the aggrieved party is to elevate the assailed decision or order to the higher court for review and correction. However, an inquiry into a judge's civil, criminal and/or administrative liability may be made after the available remedies have been exhausted and decided with finality (Republic v. Judge Caquioa,A.M. No. RTJ-07-2063, June 26, 2009).

12-201-CA·J.

•

2005).

Q: The CA issued a decision enjommg AMALI from continuing with its project construction pending the determination of its petition for declaration of right of way against WWRAI. While a petition for review on certiorari challenging the decision of the CA Justices was pending with the SC, AMA Land filed an admlnlstrattve disciplinary action against CA Justices. Will the • administrative case prosper?

Administrative sanction and criminal liability should be imposed only when the error is so gross, deliberate and malicious, or is committed with evident bad faith, or only in clear cases of violations by him of the standards and norms of propriety and good behavior prescribed by law and the rules of procedure, or fixed and defined by pertinent jurisprudence (Re: Verified complaint of

A: NO. A decision on the validity of the proceedings and propriety of the orders of the

CA Justices .n this administrative proceeding would be premature. Additionally, administrative liability will only attach upon proof that the actions of the CA Justices were motivated by bad faith, dishonesty or hatred, or attended by fraud or corruption, which were not sufficiently shown to exist in this case. Neither was bias as well as partiality established. Acts or conduct of the judge clearly indicative of arbitrariness or prejudice must be clearly shown before he can be branded the stigma of being biased and partial. Bad faith or malice cannot be inferred simply because the judgment or order is adverse to a party. Resort to administrative disciplinary action prior to the final resolution of the

Ongjocoa,qainstJustices Enriquez, Jr., et al. A.M. No. 11-184-CA-J.January 31, 2012).

Administrative complaint is NOT an appropriate remedy where judicial recourse is still available Judicial recourse such as a motion for reconsideration, an appeal, a petition for certiorari, or an administrative complaint is UNIVERSITY OF SANTO TOMAS 2 0 19 GO L DEN No TE s

No.

Disciplinary and criminal actions against a judge, are not complementary or suppletory of, nor a substitute for, judicial remedies, whether ordinary or extraordinary. Resort to and exhaustion of judicial remedies are prerequisites for the taking of other measures against the persons of the Judges concerned, whether of civil, administrative, or criminal nature. !t is only after the available judicial remedies have been exhausted and the appellate tribunals have spoken with finality that the door to an inquiry into his criminal, civil, or administrative liability may be said to have opened, or closed (Maquiran v. Judge Grageda, A.M. No. RTJ-04-1888, February 11,

DISCIPI.INE OF LOWER COURT JUDGES AND JUS TJCES Of TOE'COURT OF APPEALS AND' ·. . . SANDiGANBAYAN · . '. : .

\,. J/

/Pl

Disciplinary and criminal actions NOT a substitute for judicial remedies

December 14, 2007).

(i.-j\

ETHICS

208

•

DISCIPLINE

OF MEMBERS

In order to differentiate grave misconduct from simple misconduct, the elements of corruption, clear intent to violate the law, or flagrant · disregard of established rule, must be manifest • in the former(OCA v. judge Amor, A.M. No. RT]· 08-2140, October 7, 2014, PERLAS-BERNABE).

judicial issues involved constitutes an abuse of court processes that serves to disrupt rather than promote the orderly administration of justice and further clog the courts' dockets. Those who seek'relief from the courts must not' be allowed to ignore basic legal rules and abuse court processes in their efforts to vindicate their rights (Re: Verified Complaint of Arna Land, A.M. OCA IP/ NO. 12-202-CA-j, January 15, 2013, PERLAS-BERNABE).

,.

of judges Proceedings for the discipline of judges of regular and special courts and justices of the Court of Appeals and the Sandiganbayan may be instituted: 1.

Motu proprio by the Supreme Court; Upon a verified complaint filed before the Supreme Court supported by: a.

Affidavit of persons who have personal knowledge of the facts alleged therein; or b. Documents which may substantiate said allegations.

3.

2.

Anonymous complaint supported by public records of indubitable integrity filed with the Supreme Court

Form and content of the complaint 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 Rules of Court, or the Code of Judicial Conduct(Re: Proposed Amendment to Rule 140 of the Rules of Court Re: Discipline of Justices and Judges, A.M. NO. 01-8-10-SC, September 11, 2001). ...

·

·

.

GROUNDS

.·

,

•

A judge was found guilty of gross misconduct for failure to heed the Court's pronouncements. He did not file the required comment to the Court's show-cause resolutions despite several opportunities granted him. His willful disobedience and disregard to the show-cause resolutions constitutes grave and serious misconduct affecting his fitness and worthiness of the honor and integrity attached to his office. It is noteworthy that the judge was afforded several opportunities to explain his failure to decide the subject cases long pending before his court and to comply with the directives of this Court, but he has failed, and continuously refuses to heed the same. This continued refusal to abide by lawful directives issued by this Court is glaring proof that he has become disinterested to remain with the judicial system to which he purports to belong (OCA v. Judge Go, et al. A.M. No. MTJ,,07-1667, April 10, 2012).

Institution of proceedings for the discipline

2.

OF THE JUDICIARY

Gross Inefficiency- implies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence and circumspection which the law requires in the rendition of any public service.

3. Grave abuse of authority - implies a misdemeanor committed by a public officer, who, under color of his office, wrongfully inflicts upon a person any bodily harm, imprisonment, or other injury; it is an act characterized with cruelty, severity, or excessive use of authority (OCA v. Judge Amor, A.M. No. RT}· 08-2140, October 7, 2014, PERLAS· BERNABE).

·.

Grounds for discipline of judges 1.

4. Insubordination - refers to a refusal to obey some order, which a superior officer is entitled to give and have obeyed, and imports a willful or intentional disregard of the lawful and reasonable instructions of the employer ljudge Arabani v. Ara bani and Bakil, A.M. No. SCC-10-14-P, February 21, 2017, PERLAS-BERNABE).

Serious/Grave/Gross MisconductImplies malice or wrongful intent, not mere error of judgment. Judicial acts complained of: a.

must be corrupt or inspired by an intention to violate the law; or b. were in persistent disregard for well· known legal rules.

209

OF SANTO TOMAS~ FA CUL TY OF CIVIL LAW ...

UNIVERSITY

•

JUDICIAL

liable for grave misconduct (Cruz v. Justice Alino- Hormachuelos et al, A.M. No. CA-04-38, March 31, 2004).

Q: Judge Abut failed to cause the raffle of an injunction case and failed to follow the procedural requirements in issuing a TRO and a writ of preliminary injunction as he issued them without prior notice to the defendant and without a hearing. Is he liable for gross Ignorance of the law?

Disciplinary and criminal actions NOT a substitute for judicial remedies

A: YES. Though not every judicial error bespeaks ignorance of the law or of the rules, and that, when committed in good faith, does not warrant administrative sanction, the rule applies only in cases within the parameters of tolerable misjudgment When the law or the rule is so elementary, not to be aware of it or to act as if one does not know it constitutes gross ignorance of the law. A judge is expected to keep abreast of the developments and amendments thereto, as well as of prevailing jurisprudence. Ignorance of the law by a judge can easily be the mainspring of injustice. In the absence of fraud, dishonesty or corruption, the , acts of a judge in his judicial capacity are not subject to disciplinary action. However, the assailed Judicial acts must not be in gross violation of clearly established law or procedure, which every Judge must be familiar with (Sps. Lago v. Judge Abu/, Jr., A.M. No. RT]· 10-2255,]anuary 17, 2011). Q: Cruz was the defendant In an ejectment case filed by the Province of Bulacan involving a parcel ofland owned by the said province. A decision was rendered against Cruz. He then filed an appeal and several motions for reconsideration but Justice Alino·Hormachuelos, before whom the motions were filed, subsequently denied all of them. Consequently, Cruz charged all the judges and justices with grave misconduct, gross inexcusable negligence, and rendering a void judgment. Should the judges be held liable for grave misconduct and gross Ignorance of the law?

judges will not be held administratively liable for mere errors of judgment in their rulings or decisions absent a showing of malice or gross ignorance on their part Bad faith or malice cannot be inferred simply because the • judgment is adverse to a party. To hold a judge administratively accountable for every erroneous ruling or decision he renders, assuming that he has erred, would be nothing short of harassment and would make his position unbearable. Here, a decision not favorable to Cruz is not enough to make them

~ ... 11

UNIVERSITY OF SANTO TOMAS GOLDEN NOTES

2019

Disciplinary and criminal actions against a judge, are not complementary or suppletory of, nor a substitute for, judicial remedies, whether ordinary or extraordinary. Resort to and exhaustion of judicial remedies are prerequisites for the taking of other measures against the persons of the Judges concerned, whether of civil, administrative, or criminal nature. It is only after the available judicial remedies have been exhausted and the appellate tribunals have spoken with finality · that the door to an inquiry into his criminal, civil, or administrative liability may be said to have opened, or closed (Maouiran v. Judge Grageda, A.M. No.. RT]-04-1888, February 11, 2005). \; Lost/Destroyed Original Certificate of Title was granted by the Quezon City RTC. Upon appeal to the CA, the decision was reversed by the special division where Justice . Enriquez was Chairperson. His MR having been denied, complainant filed a complaint before the Supreme Court. Pending the decision of the Supreme Court, an administrative charge of Gross Ignorance of the law /Gross Incompetence was filed against Associate Justice Enriquez. Is the filing of the administrative complaint against him proper?

The failure to interpret the law or to properly appreciate the evidence presented does not" necessarily render a judge administratively liable.· 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

210

•

Q: Santiago's Petltlon for Reconstitution of

A: NO. The remedy of the aggrieved party is not to file an administrative complaint against the judge, but to elevate the assailed decision or order to the higher court for review and correction. An administrative complaint is not an appropriate remedy where judicial recourse is still available, such as a motion for reconsideration, an appeal, or a petition for certiorari, unless the assailed order or decision is tainted with fraud, malice, or dishonesty.

A: NO. The Court has consistently held that

(1.-·~)

ETHICS

•

DISCIPLINE

OF MEMBERS OF THE JUDICIARY

erroneous. In the words of Alzua and Arnalot v.

NOTE: While referencJ to a debt necessarily . implies a transaction that is private and outside of official transactions, the rules do not thereby intrude into public officials' private lives; they simply look at their actions from the prism of public service and consider these acts unbecoming of a public official (Grio Lending Services v. Clerk Sermania, A.M. No. P-03-1757,

Johnson, "it is a general principle of the highest

importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself." This concept of judicial immunity rests upon consideration of public policy, its purpose being to preserve the integrity and independence of the judiciary. This principle is of universal application and applies to all grades of judicial officers from the highest judge of the nation and to the lowest officer who sits as a court (Santiago Ill v, Justice Enriquez, Jr. A.M. No. CA-09-47-J, February 13,

December 10, 2003).

Less serious charges 1.

2.

2009). 3. 4.

GROUNDS FOR ADMINISTRATIVE DISCIPLINARY ACTION

5. Classifications of administrative charges 1. 2.

3.

Serious Less serious Light

6.

7.

NOTE: Administrative penalties imposed on judges are both punitive and corrective (2011 Bar).

1.

Serious charges 4. For serious misconduct to exist, the judicial act complained of should be corrupt or inspired by an intention to violate the Jaw or a persistent disregard of well-known legal rules 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

Bribery, direct or indirect Dishonesty and violations of the Anti-Graft and Corrupt Practices Law (R.A. 3019) Gross misconduct constituting violations of the Code of Judicial Conduct Knowingly rendering an unjust judgment or order as determined by a competent court in an appropriate proceeding Conviction of a crime involving moral turpitude Willful failure to pay a just debt Borrowing money or property from lawyers and litigants in a case pending before the court Immorality Gross ignorance of the law or procedure Partisan political activities Alcoholism and/or vicious habits

Undue delay in rendering a decision or order, or in transmitting the records of a case Frequently and unjustified absences without leave or habitual tardiness Unauthorized practice of law Violation of Supreme Court rules, directives, and circulars Receiving additional or double compensation unless specifically authorized by law Untruthful statements in the certificate of service Simple misconduct

Light charges 2. 3.

1.

•

Vulgar and unbecoming conduct Gambling in public Fraternizing with lawyers and litigants with pending case/cases in his court Undue delay in the submission of monthly reports

Confidentiality of proceedings Proceedings against judges of regular and special courts and justices of the Court of Appeals and the Saridiganbayan 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 (Sec 12, Rule 140, RRC). Resignation or retirement administrative case

pending

The retirement of a judge or any judicial officer from service does not preclude the finding of , any adrrunistrative liability to which he should still be answerable. Also, the withdrawal or recantation of the complaint does not necessarily result in the dismissal of the case (Atty. Molina v. Judge Paz, A.M. No. RT] -011638, December 8, 2003).

211

UNIVERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW ...

•

JUDICIAL Q: May the heirs of a judge, who was found guilty of gross neglect of duty and dismissed from the service with disqualification from holding public office for an offense committed before he was appointed judge, be entitled to gratuity benefits?

the complaint are admitted or are already shown on the record, and no credible explanation that would negate the strong inference of evil intent is forthcoming, no further hearing to establish such facts to support a judgment as to culpability of the respondent is necessary (Jn Re: Petition for dismissal of Judge Dizon, A.M. No. 3086, May 3, 1989).

A: YES. Upon the demise of a judge, any administrative complaint filed by the OCA against him or her has to be considered closed and terminated. Therefore, there is no valid reason why the heirs of the deceased should not be entitled to gratuity benefits for the period he rendered service as MTCC judge up to the finality of the CSC Resolution which imposed the penalty of "dismissal from service with all the accessory penalties including disqualification from holding public office and forfeiture of benefits". ·

NOTE: The doctrine of res ipsa Ioquitur does

not and cannot ' dispense

with the twin requirements of due process, notice and the opportunity to be :heard. It merely dispenses with the procedure'Iald down in Rule 140, RRC (Rule 140: DisciplMe of Judges of Regular and Special Courts and Justices of the Court of Appeals and the Sandiganbayan). Suspension pendente judges

The penalty of disqualification from holding public office and forfeiture of benefits may not be applied retroactively. However, the judge should be considered terminated from service in the judiciary as his appointment as MTCC judge is deemed conditional upon his exoneration of the CSC admlnistrative charges against him (Re: Application for retirement/gratuity benefits under R.A. 910 as amended by RA. 5095 and P.D. 1438 filed by Butacan, surviving spouse of the late Judge. Butacan, A.M. No.12535-Ret, April 22, 2008).

Moreover, it is established that any administrative complaint leveled against a judge must always be examined with a discriminating eye, for its consequential effects • are, by their nature, highly penal, such that the respondent judge stands to face the sanction of dismissal or disbarment. As aforementioned, the filing of criminal cases against judges may be used as tools to harass them and may, in the long run, create adverse consequences (Re: Conviction of judge Angeles, A.M. No. 06-9-545RTC, January 31, 2008).

The ground for removal of a judicial officer should be established beyond reasonable doubt. Such is the rule where the charge on which the removal is sought is misconduct in office, willful neglect, corruption or incompetence. The general rules in regard to admissibility of evidence in criminal trials apply.

Grievance procedure in the Rules of Court is not applicable to justices and judges

Q: May a judge be disciplined by the Supreme Court based solely on a complaint filed by the complainant and the answer of respondent judge? If so, in what circumstances? What is the rationale behind this power of the Supreme Court? (1996 Bar)

Complaints against justices and judges are filed with the Supreme Court which has exclusive administrative supervision over all courts and the personnel thereof pursuant to Section 6, Art. Vil! of the Constitution. The Court en bane has the power to discipline all judges of lower courts including justices of the Court of Appeals (Section 11/Art VII, 1987 Constitution).

A: YES.A judge may be disciplined

by the Supreme Court based solely on the basis of the complaint filed by the complainant and the answer of the respondent judge, under the principle of res ipsa /oquitor. The Supreme Court has held that when the facts alleged in UNIVERSITY OF SANTO TOMAS GOLDEN NOTES

\,.,Y 2019

•

lite not applicable to

While it is true that preventive suspension pendente lite does not violate the right of the accused to, be presumed innocent as the same is not a penalty, the rules on preventive suspension of judges, not having been expressly included in the Rules of Court, are amorphous at best.

Quantum of evidence

fill-#)

ETHICS

As a matter of practice, the Supreme Court has assigned complaints against Municipal or Metropolitan Trial Judges to an Executive

212

•

DISCIPLINE

OF MEMBERS

Judge of a Regional Trial Court and complaints against judges of Regional Trial Courts to a justice of the Court of Appeals, while a complaint against a member of the Court of Appeals would probably be assigned to a member of the Supreme Court for investigation, report and recommendation. Retired Supreme Court Justices are now tasked for this purpose.

manner impeding or impairing. civil liberties guaranteed by the Constitution This responsibility for damages is not, however, demandable of judges except when his act or omission constitutes a violation of the Penal Code or other penal statute. Disabilities/restrictions Civil Code

Rules on the liability of judges

GR: A judge is not liable administratively, civilly, or criminally, when he acts within his legal powers and jurisdiction, even though such acts are erroneous so long as he acts in good faith. In such a case, the remedy of aggrieved party is not to file an administrative complaint against the judge but to elevate the error to a higher court for review and correction.

1.

NOTE: The reason behind such rule is to free

the judge from apprehension of personal consequences to himself and to preserve the integrity and independence of the judiciary. is gross or patent, deliberate and malicious, or is incurred with evident bad faith; or when there is fraud, dishonesty, or corruption.

as Judge does not exculpate

2.

liability

Promotion as a judge during the pendency of administrative case committed while still a Clerk of Court cannot be considered either as a mitigating or an exculpatory circumstance to excuse him from any administrative liability. A judge is still bound by the same principle enshrined in Section 1, Article Xl of the Constitution, which states that a public office is a public trust, and all public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives (OCA v. Atg,. Melcho1~ Ir: A.M. No.

Article 1491 (S)- Justices, judges, prosecuting attorneys, clerks of court of superior and inferior courts and other officers and employees connected with the administration of justice cannot acquire by purchase, even at a public or judicial action, either in person or through the mediation of another the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions.

Article 739 - Donations made to a judge, his wife, descendants and ascendants by reason of his office are void.

1. Article 204· Knowingly rendering unjust judgment. a.

Manifestly Unjust Judgment - one which is so patently against the law, public order, public policy and good morals that a person of ordinary discernment can easily sense its invalidity and injustice.

NOTE: It must be shown beyond doubt that the judgment is unjust as it is contrary to law or is not supported by evidence and the same was made with conscious and deliberate intent to do an ·

Civil liabilities under the New Civil Code

2.

the New

Criminal Liabilities under the RPC and the Anti-Graft and Corrupt Practices Act

P-06,2227,August 19, 2014).

1.

under

This prohibition includes the act of acquiring by assignment and shall apply to lawyers with respect., to the property and rights that may be the objects of any litigation in which they may take part by virtue of their profession (1996 Bar).

XPN: Where an error

Promotion

•

OF THE JUDICIARY

Article 2 7- refusal or neglect without just cause by a public servant to perform his official duty Article 32- directly . or indirectly obstructing, defeating, violating or in any

•

injustice (In Re: Judge Climaco, A.C. No. 134-J,)anuary 21, 1974).

213

U tHVERSlTY OF SANTO TOMAS~ FACULTY OF CrVIL LAW

.,.,..

•

JUDICIAL

ETHICS 2.

If the decision rendered by the judge is still on appeal, the judge cannot be disqualified on the ground of knowingly rendering an unjust judgment (Abad v. Judge Bleza, A.M. No. R-227-RTJ, October

A fine of more than Pl0,000.00 exceeding P20,000.00.

but not

Sanctions for a Jti~ge found guilty LIGHT charge ,,

of a

13, 1986).

Any of the followlng imposed:

2. Article 205- Judgment rendered through negligence - committed by reason of inexcusable negligence or ignorance.

1. A fine of not less than Pl,000.00 exceeding Pl0,000.00; and/or 2. Censure; 3. Reprimand; or 4. Admonition with warning

NOTE: Negligence and ignorance are inexcusable if they imply a manifest injustice, which cannot be explained by reasonable interpretation {In Re: Judge Climaco, A.C. No.134·],January 21, 1974). 3. Article 206- Knowingly rendering unjust interlocutory order; and 4.

Factors to he considered in reinstatement Unsullied name and service of record prior to dismissal 2. Commitment to avoid situations that spur suspicion of arbitrary conditions 3. Complainant mellowed down in pushing from his removal 4. Length of time separated from service. 1.

Sanctions for a judge found guilty of a SERIOUS charge may be

RESOLUTION PRESCRIBING MEASURES TO .PROTECT MEMBERS OF THE JlJDICIARY : . FROM BASELESS AND UNFOUNDED · . 'ADMINISTRATIVE COMPLAINTS . .

1.

Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification 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 from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or 3. A fine of more than P20,000.00 but not exceeding 1"40,000.00.

.· A.M. N,dJ3-10·01-SC, November3, 2003

In order for an administrative complaint against a retiring :')judge or justice to be dismissed outright.; the following requisites must concur: :'

1. The complaint mtst have been filed within six (6) months from the compulsory

retirement of the judge or justice; 2. The cause of action must have occurred at least a year before such filing; and 3. It is shown that the complaint was intended to harass the respondent.

Sanctions for a judge found guilty of a LESS SERIOUS charge Suspension from office without salary and other benefits for not less than one (1) nor more than three (3) months; or

\ •• ,.I'

s

UNIVERSITY OF ANTO 2019 GOLDEN NOTES

TOMAS

•

Reinstatement is proper when there is no indication that the judge is inspired by corrupt motives or reprehensive purpose in the performance of his functions.

.. SANCTIONS·IMPOSED BYTH~ SUPREME· . . ·.COURTON ERRING MEMBERS OF THE :. · .. · . ... . JUDICIAR,Y . . : . ·.

-... (II)

but not

Propriety of reinstatement

act must be committed maliciously or with deliberate intent to prejudice a party in a case.

1.

be

an

NOTE: The

following sanctions

shall

REINSTATEMEN'f OF A JUDGE PREVIOUSLY ·: : . : : . . • . DIS Cl Pt.IN ED . . .' .·

Maliciously delaying the administration of justice.

Any of the imposed:

sanctions

214

•

• DISCIPLINE

OF MEMBERS

OF THE JUDICIARY

. r1toCEDUnE FOR DISCIPLINE OF JUDGES OF REGULAR AND SPECIAL COURTS AND JUS'nCES OF ... · . , · THECOURTOFAPPE~LSANDTHESANDIGANBAYAN ·. . ·.· . · . · (A.M,N0.01·8-10-SC) . . : · . · . · . . . . '· : · . 2005 R/\R . . . . • . .

If the complaint is sufficient in substance, a copy thereof shall upon the respondent and he required to comment within 10 date of service.

form and be served shall be days from

If the complaint is not sufficient in form and substance, the same shall be dismissed.

-!Upon the filing of the respondent's comment or upon the expiration of the time for filing the same and unless other pleadings or documents are required, the Supreme Court shall refer the matter to:

L .------,

Office of the Court Administrator for evaluation, report, and recommendation; OR Assign the case for investigation, report, and recommendation to a: 1. Retired member of the Supreme Court • if the respondent is a Justice of the Court of Appeals and the Sandiganbayan; 2. Justice of the Court of Appeals • if the respondent is a Judge of a Regional Trial Court or of a special court of equivalent rank; or 3. Judge of the Regional Trial Courtif the respondent is a ludge of an inferior court.

The Court shall take such ACTIONon the report as the facts and the law may [warrant.

+---

The investigating justice or judge shall set a day of the HEARINGand 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. The investigating justice or judge shall terminate the investigation within ninety (90) days from the date of ~ts commencement or within such extension as the Supreme Court may grant.

l

Within thirty (30) days from the termination of the investigation, the investigating Justice or Judge shall submit to the Supreme Court a REPORT containing 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 use of the Court.

•

NOTE: Before the Court approved this resolution., administrative and disbarment cases against members of the bar who were likewise members of the court were treated separately. However, pursuant to the new rule, an administrative case against a judge of a regular court based on grounds which are also grounds for the disciplinary action against members of the Bar shall be automatically considered as disciplinary proceedings against such judge as a member of the Bar. Since membership in the bar is an integral qualification for membership in the bench, the moral fitness of a judge also reflects his moral fitness as a lawyer. A judge who disobeys the basic rules of judicial conduct also violates his oath as a lawyer [Samson v. Judge Caballero, A.M. No. R?]-08-2138, August 5, 2009).

r

215

UNIVERSITY OF S~NTO TOMAS~ FACULTY OF CIVIL LAW

''9'

•

JUDICIAL ·. ·l)tSQtJALIFICATION OF JUSTl(:ES·AND. ·. , : .· . JUDGES ... · · ... .

. :

. . ·

. , '

RUI.E 137

.

. COMPULSORY

· : , · .

.

The self-examination of the judge is necessary. He should exercise his discretion in a way that people's faith in the courts of justice will not be impaired. His decision, as to whether to hear the case or not should be based and dependent on giving importance to the public confidence in the impartiality of a judge.

·.

.' . · .

Compulsory

Disqualification conclusively presumes that a judge cannot actively or impartially sit on a case {People v. Governor Kho,

A judge may not be legally prohibited from sitting in a litigation, but when circumstances appear that will induce doubt as to his honest actuations and probity in favor of elther party, or incite such state of mind, he should conduct a careful examination. He should exercise his discretion in a way that people's faith in the Courts of Justice is not impaired. The better course for the judge under such circumstances is to disqualify himself (Intestate Estate of

G.R. No.139381, ApriJ 20, 2001). Dlsquallflcatlon of justices and Judges GR: Section 1 of Rule 13 7 provides that a judge ls mandated by law to be disqualified under any of the following instances: 1.

2.

3.

4.

The judge, or his wife, or child is pecuniarily interested as heir, legatee, or creditor The judge is related to either party of the case within the sixth degree of consanguinity or affinity, or to the counsel within the fourth degree [computed according to the rule of civil law) The judge has been an executor, administrator, guardian, trustee or counsel The judge has presided in any inferior court when his ruling or decision is the subject of review

23, 1987). Intimacy or friendship between a judge and an attorney of record of one of the parties to a suit

A.M. No. MTJ-98-1173, December .15, 1998). ·

VOLUNTARY

•

Borromeo v. Borromeo, G.R. No. L-41171, July

XPN: The same rule also provides that thejudge • · may hear and decide the case despite the presence of a disqualification provided the Interested parties both give their written consent, signed by them and entered i.lport the record. It has been decided by the Supreme Court that oral consent is not valid, even though both parties have agreed (Lazo v. Judge Tiong,

· .. ·

ETHICS

It is ~O'i' a ground for disqualification. That one of the counsels in a case was a classmate of the trial judge is not a legal ground for the disqualification of the said judge. To allow it would unnecessarily burden other trial judges to whom the case would be transferred. But if • the relationship between the judge and an attorney for a party is such that there would

•

be a nntural lncllnatlon to preJudlco the ease, the judge

should be dfsquallfied in order to guaranty a fair tri~l (Query of Executive judge

Estrada, 1987). It is well-established that inhibition is not allowed at every instance that a schoolmate or classmate appears before the judge as counsel for one of the parties. A judge, too, is not expected to automatically inhibit himself from acting in a case involving a member of his fraternity Gimenez, Jr. v. People, G.R. No.

. ·· . . .

Voluntary Inhibition according to the Rules of Court states that a judge through the exercise of sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above (People v. Governor Kho,

209195, September 17, 2014).

G.R. No.139381, April 20, 2001).

Rationale

NOTE: A presiding judge must maintain and preserve the trust and faith of the parties· litigants. He must hold himself above reproach and suspicion. At the very sign of Jack of faith and trust in his actions, whether well-grounded or not, the judge has no other alternative but to inhibit himself from the case (Gutang v. Court of

The intendment of Rule 137 is incontestably that a judge, sitting in a case, must at all times be wholly free, disinterested, impartial and independent A judge has both the duty of rendering a just decision and the duty of doing it in a manner completely free from suspicion as to its fairness and as to his integrity. The law

Appeals, G.R. No. 124760 July 8, 1998).

.

. '

~·: . i ';'"j

I (.\

UN IV ERSITY OF SANTO

',,,,;:/

2017GOLDEN

NOTES

i

TOMAS

I

216

... :'~

• OF MEMBERS OF THE JUDICIARY

DISCIPLINE

conclusively presumes that a judge cannot objectively or impartially sit in such a case and, for that reason, prohibits him and strikes at his authority to hear and decide it (Garcia v. de la Pena, A.M. No. MTJ-92·687,February 9, 1994).

own conscience and honor (Ga/man v. Sandiganbayan, C.R. No. 72670, September 12, 1986). Courts always open; justice to be promptly and impartially administered.

Q: An information was filed charging Manuel GR: Courts of justice shall always be open for:

Jimenez and several others of the crime of murder. One of the alleged co-conspirators, Montero, filed a Mation for his discharge as a state witness for the prosecution. Judge Docena acted upon the said motion and ruled that Montero is qualified to be a state witness. Jimenez then filed a motion for inhibition; praying that Judge Decena inihibit himself from further acting upon the case on the ground of bias, Jimenez being the judge's fraternity brother and State Prosecutor Villanueva was his classmate. Should Judge Docena inhibit himself from hearing the case'!

1. 2. 3. 4.

filing of any pleading, motion or other papers; the trial of cases; hearing of motions; and the issuance of orders or rendition of judgments

XPN: Legal holidays Publicity of proceedings GR: The sitting of every court of justice shall be public (Sec. 2, Rule 135, RRC).

A: NO. The second paragraph

of Section 1 of Rule 137 does not give judges the unlimited discretion to decide whether or not to desist from hearing a case. The inhibition must be for just and valid causes. The mere imputation of bias or partiality is likewise not enough ground for their inhibition, especially when the charge is without basis. It is well-established that inhibition is not allowed at every instance that a schoolmate or classmate appears before the judge as counsel for one of the parties. In attributing bias and prejudice to Judge Decena, Jimenez must prove that the judge acted or conducted himself in a manner clearly indicative of arbitrariness or prejudice so as to defeat the attributes of the cold neutrality that an impartial judge must possess. Unjustified assumptions and mere misgivings that the judge acted with prejudice, passion, pride and pettiness in the performance of his functions cannot overcome the presumption that a judge shall decide on the merits of a case with an unclouded vision of its facts ljimenez, Jr. v. People, G.R. No. 209195, September 17, 2014~. .

XPN: But any court may, in its discretion, exclude the public when the evidence to be adduced is of such nature as to require their exclusion in the interest of morality or

decency(Sec. 2, Rule 135, RRCJ. Records of a court always public

. . ..

'. JU.DICIAL OFFICERS . .' ·

· RULE 135

· ·

XPN: Unless the court shall, in any special case, have forbidden their publicity, in the interest of morality or decency (Sec. 2, Rule

135, RRC). Instances in which Superior Court processes are enforceable in any part of the Philippines ·

· . ·. : .

·. ·.

are NOT

GR: The records of every court of justice shall be considered public records and shall be available for the inspection of any Interested person, at all proper business hours, under the supervision of the clerk having custody of such rec~rds(Sec. 2, Rule 135, RRC).

POWERS ANI) DUTIES OF COURTS AND

.

of justice

1. 2. 3.

··

Nature of the office of the Judge

A case is pending

GR:Process enforceable

217

to

bring in a defendant For the arrest of an'accused person Execution of any order or judgment of the court (Sec. 3, Rule 135, RRC).

Enforceability inferiorcourts

Justices and judges must ever realize that they have no constituency, serve no majority or minority but serve only the public interest as they see it in accordance with their oath of office, guided only by the Constitution and their

•

of

the

processes

in

of inferior court shall be within the province where the

U fHVERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW •••

•

JUDICIAL

ETHICS

municipality or city lies. lt shall not be served outside its boundaries (Sec. 4, Rule 135, RRC). g.

XPN: With the approval of judge of first instance of said province and ONLY on the following cases:

h.

1. When an order for the delivery of personal 2. 3. 4.

property lying outside the province is to be complied with; When an attachment of real or personal property lying outside the province is to be made; When the action is against two or more defendants residing in different provinces; and When the place where the case has been brought is that specified in a contract in writing between the parties, or is the place of the execution of such contract as appears therefrom(Sec. 4, Rule 13.5, RRC).

other cases where it may be necessary In the exercise of its powers; To amend and control its process and orders so as to make them comfortable to law and justice; To authorize a copy of a lost or destroyed pleading or other paper to be filed and used instead of the original, and to restore, and supply deficiencies in its records and proceedings(Sec. 5, Rule

135, RRC) Carrying jurisdiction into effect When by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer(Sec. 6, Rule 135, RRC) If the procedure to befollowed in the exercise of such jurisdiction is· not specifically pointed out by law or rules, :Any suitable process or mode of proceeding -may be adopted which appears conformable to the spirit of said law or rules(Sec. 6, Rule 135, RRC)

Criminal processes served outside judge's jurisdiction is allowed When the district judge, or in his absence the provincial fiscal, shall certify that in his opinion the interests of justice require such service (Sec.. 4, Rule 135, RRC) •

• Trials upon merits, where conducted

All trials upon the merits shall be conducted

Writs of execution by inferior courts

in open court and so far as convenient in a regular court room {Sec. 7, Rule 135, RRC).

Writs of execution Issued by Inferior courts may be enforced In any part of the Philippines without any previous approval of the judge of first instance (Sec. 4, Rule 135, RRC).

All other acts or proceedings, excluding trial upon the merits, may be done or conducted by a judge in chambers, without the attendance of the clerk or other court officials (Sec. 7, Rule

Inherent powers of the courts

135, RRCJ.

a. b.

c.

d.

e.

f

To preserve and enforce order in its immediate presence; To enforce order in proceedings before it, or before a person or persons empowered to conduct a judicial investigation under its authority; To compel obedience to its judgments, orders and processes, and to the lawful orders of a judge out of court, ln a case pending therein; To control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a case before it, in every manner appertaining thereto; To compel the attendance of persons to testify in a case pending therein; To administer or cause to be administered oaths in a case pending therein, and in all

(·"· \ ' UNIVERSITY OF SANTO TOIIIAS \.,,/ 2017GOLDEN NOTES

Instances where the hearings may be had at any place In the judicial district which the judge shall deem convenient

1.

On the filing of a petition for the writ of

habeas corpus 2.

For release upon bail or reduction of bail in any Court of First Instance (Sec. 8, Rule

135, RRC). Signing judgments outside of province When a judge who is appointed or assigned in any province or branch of a Court of First Instance in a province shall leave the province by transfer or assignment to another court of equal jurisdiction or by expiration of his temporary assignment without having decided a case totally heard by him and which

218

·yr.--· ... COURT RECORDS

ANO GENERAL DUTIES OF CLERKS ANO S;TENOGRAPHE:RS

,· was argued or an opportunity given for argument to the parties or their counsel, it shall be lawful for him to prepare and sign his decision in the said case anywhere in the Philippines(Sec, 9, Rule 135, RRC).

record (OCA

1185,June 26, 2000). Time and again, the Court has emphasized the heavy burden and responsibility which court personnel are saddled with in view of their exalted positions as keepers of public faith. They must be constantly reminded that any impression of impropriety, misdeed or negligence in the performance of official functions must be avoided. In the case of Mendoza v. Mabutas, the Court held that it condemns and would never countenance any conduct, act or omission on the part of all those involved in the administration of justice which would violate the norm of public accountability and diminish or even just tend to diminish the faith of the people in the Judiciary (OCA v. Sheriff IV Cabe, A.M. No. P-96· 1185, June 26, 2000).

Instances when Supreme Court can authorize the judge to continue hearing and to decide said case notwithstanding his transfer or appointment to another court of

equal jurisdiction 1.

2. 3.

Upon petition of any of the parties to the case and the recommendation of the respective district judge; If a case has been heard only in part; and If no other judge had heard the case in part

(Sec. 9, Rule 135, RRC). ·.COURT RECORDS AND GENERAL DUTIES OF · '. . CL~RKS AND'STENOGRA~HERS.. . . '

· ·

'

·· •

(RULE 136) .

·

v. Sheriff IV Cabe, A.M. No. P-96·'

Issuance by clerk of process

....

The clerk of a superior court shall issue under the seal of the court all ordinary writs and process incident to pending cases, the issuance of which does not involve the exercise of functions appertaining to the court or judge only; and may, under the direction of the court or judge, make out and sign letters of administration, appointments of guardians, trustees, and receivers, and all writs and process issuing from the court {Sec. 41 Rule 136, RRCJ.

Style of process Processes shall be under the seal of the court from which it issues. styled under Republic of the Philippines, Province or City of, signed by the clerk and shall bear the date on which it was actually issued (Sec. 2, Rule 136, RRC). Clerk's office '

The clerk's office, with the clerk or his deputy in attendance, shall be open during business hours on all days except on Sundays and legal holidays. The clerk of the Supreme Court and that of the Court of Appeals shall keep office at Manila and all papers authorized or required to be filed therein shall be filed at Manila {Sec. 31 Rule 136, RRC).

Duties of the clerk Jn the absence or by direction of the judge: In the absence of the judge, the clerk may: 1. Perform all the duties of the judge in receiving applications, petitions, inventories, reports, and the issuance of all orders and notices that follow as a matter of course under these rules; 2. When directed so to do by the judge, receive the accounts of executors, administrators, guardians, trustees, and receivers, and all evidence relating to them, or to the settlement of the estates of deceased persons, or to guardianships, trusteeships, or receiverships; and forthwith 3. Transmit such reports, accounts, and evidence to the judge, together with his findings in relation to the same, if the

Duty of a clerk of court The Branch Clerk of Court, being the administrative assistant of the Presiding Judge, has the duty of assisting in the management of the calendar of the court and in other matters not involving the exercise of judicial discretion or judgment of the judge. He should be a model for his co-employees to act speedily and with dispatch on their assigned tasks to avoid the clogging of the court's docket, and thereby assist in the sound and speedy administration of justice. Clerks of court must be assiduous in performing their official duties and in supervising and managing court dockets and

219 •

ll NIVERSITY OF SANTO TOMAS~ FACULTY OF CIVIL LAW

'9'

•

•

JUDICIAL judge shall direct him to make findings and include the same in his report (Sec. 5, Rule 136, RRC). Clerk shall receive minutes

papers and prepare

The clerk of each superior court shall receive and file all pleadings and other papers properly presented, endorsing on each such paper the time when it was filed, and shall attend al! of the sessions of the court and enter its proceedings for each day in a minute book to be kept by him (Sec. 6, Rule 136, RRC).

ETHICS monitoring and to keep a General Docket Book. Judge Tormis claimed that she faithfully conducted sernestraI physical inventories of case records except during the period which comprised her three suspensions as she was then denied access to her courtroom and case records. On the other hand, the Clerk of Court, Mr. Teves, explained that the alleged error in his reports can be attributed to the discrepancy in procedure or appreciation in the preparation Of the reports. Is Judge Tormis guilty of vlolatlon of Supreme Court rules, directives, and circulars?

..

\

Safekeeping of property The clerk shall safely keep all records, papers, files, exhibits and public property committed to his charge, i.ncludingthe library of the court, and the seals and furniture belonging to his office (Sec. 7, Rule 136, RRC). Records kept by the clerk 1. General Docket • Each page shall be numbered and prepared for receiving all the entries in a single case. All cases, numbered consecutively in the order in which they were received, and, under the heading of each case and a complete title thereof, the date of each paper filed or issued, of each order or judgment entered, and of each other step taken in the case so that by reference to a single page the history of the case may be seen are entered therein (Sec. 8, Rule 136, RRC). 2. Judgment book - It contains a copy of each judgment rendered by the court in order of its date (Sec. 9, Rule 136, RRC). 3. Book of Entriesof Judgments • It contains, at length, in chronological order, entries of all final judgments or orders of the court (Sec. 9, Rule 136, RRC). 4. Execution book - It contains, at length, in chronological order each execution, and the officer's return thereon, by virtue of which real property has been sold (Sec. 10, Rule 136, RRC). Judge Tormis was accused of mismanagement of the court and case records. The report revealed that Branch 4 failed to maintain a docket book or any similar system of record-keeping and Q:

(--··\

\: !J .....

1 ..

UN IVE RS IT Y OF SANTO TOM AS 2019 GOLDEN NOTES

A: YES, for her failure·to comply with her duty of providing an efficient court management system in her court which includes the preparation and use of docket inventory and monthly report of cases as tools. Although the duty is vested with Mr. Teves, it is the duty of Judge Tormis to make sure that the members of her staff perform their duties. This failure contributed to their inability to keep track of the number of cases assigned and to account for all the cases and records assigned to the court. The OCA noted that Judge Tormis failed to conduct an actual physical inventory of cases to keep abreast of the status of the pending cases and to be informed that every case is in proper order. If the same was conducted, she would have discovered that Mr. Teves had been committing a mistake in the inventory of cases. Likewise, Mr. Teves is liable for simple neglect of duty {OCA v. Judge Tormis, A.M. 2013).

No.

MTJ-12-1817,March

•

12,

Certified copies The clerk shall prepare, for any person demanding the same, a copy certified under the seal of the court of any paper, record, order, judgment, or entry in his office, proper to be certified, for the fees prescribed by these rules{Sec.11, Rule 136, RRC). Index The general docket, judgment book, entries book and execution book shall be indexed in alphabetical order in the names of the parties, and each of them. If the court so directs, the clerk shall keep two or: more of either or all of the books and dockets above-mentioned, separating civil from ciiminal cases, or actions from special proceedings, or otherwise

220 .i

COURT RECORDS ANO GENERAL DUTIES OF CLERKS AND STENOGRAPHERS

keeping cases separated by classes as the court shall deem best (Sec. 13, Rule 136, RRCJ.

except that of the accused· in preliminary investigations (Sec. 18, Rule 136, RRCJ.

Taking of record from the clerk's office

NOTE: An orderly and efficient case management system is no doubt essential in the expeditious disposition of judicial caseloads, because only thereby can the judges, branch clerks of courts, and the clerks· in-charge of the civil and criminal dockets ensure that the court records, which will be the bases for rendering the judgments and dispositions, and the review of the judgments and dispositions on appeal, if any, are intact, complete, updated, and current. Such a system necessarily includes the regular and continuing physical inventory of cases to enable the judge to keep abreast of the status of the pending cases and to be informed that everything in the court is in proper order. In contrast, mismanaged or incomplete records, and the lack of periodic inventory definitely cause unwanted delays in litigations and inflict unnecessary expenses on the parties and the State (In Re: Report on the Judicial Audit Conducted in the Regional Trial Court, Br. 45, Urdaneta City, Paiiqasinan, A.M. No. 08-4· 253-RTC]anuary 12, 2011).

GR: No record shall be taken from the clerk's office without an order of the court, except as otherwise provided by these rules (Sec. 14, Rule .136, RRCJ. XPN: The Solicitor General or any of his

assistants, the provincial fiscal or his deputy, and the attorneys de officio shall be permitted, upon proper receipt, to withdraw from the clerk's office the' record of any cases in which they are interested (Sec.14, Rufe 136, RRCJ. Docket and other records of inferior courts Every municipal and city judge shall keep a well-bound book labeled docket, in which he shall enter for each case: a. b.

c.

d. e. f. g. h. i. j.

k.

The title of the case including the names of all the parties; The nature of the case, whether civil or criminal, and if the latter, the offense charged; The date of issuing preliminary and intermediate processes including orders of arrest and subpoenas, and the date and nature of the return thereon; The date of the appearance or default of the defendant; The date of presenting the plea, answer, or motion to quash, and the nature of the same; The minutes of the trial. including the date thereof and of all adjournments; The names and addresses of all witnesses; The date and nature of the judgment, and, in a civil case, the relief granted; An itemized statement of the costs; The date of any execution issued, and the date and contents of the return thereon; and The date of any notice of appeal flied, and the name of the party filing the same(Sec. 18, Rule 136, RRC).

·:

·!

Inventory of cases Although the presiding judge and his or her staff share the duty of taking a continuing and regular inventory of cases, the responsibility primarily resides in the presiding judge. The continuity and regularity of the inventory are designed to invest the judge and the court staff with the actual knowledge of the movements, number, and ages of the cases in the docket of their court, knowledge essential to the efficient management of caseload. The judge should not forget that he or she is dutybound to perform efficiently, fairly, and with reasonable promptness all his or her judicial duties, including the delivery of reserved decisions. Thus, the judge must devise an efficient recording and filing system for his or her court that enables him or her to quickly monitor cases and to manage the speedy and timely disposition of the cases (In Re: Report on the Judicial Audit Conducted in the Regional Trial Court, Br. 45, Urdaneta City, Panqasinan, A.M. No. 08-4-253-RTC, January

A municipal (or city) judge may keep two dockets, one for civil and one for criminal cases. He shall also keep all the pleadings and other papers and exhibits in cases pending in his court and shall certify copies of his docket entries and other records proper to be certified, for the fees prescribed by these rules. It shall not be necessary for the municipal (or city) judge to reduce to writing the testimony of witnesses.

•

12, 201.1).

Stenographer lt shall be the duty of the stenographer who . has attended a session of a court either in the

221

ON lVERSITY OF SANTO TOMAS~ FACULn' OF ClVIL LAW

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•

JUDICIAL morning or in the afternoon, to deliver to the clerk of court, immediately at the close of such . morning or afternoon session, all the notes he

·. PERSONS ~UTHORIZED TO COI.LECT .. . ' .. .· · · · 1.EGJ\L FF.ES . .

. i Except :is Nherwise provided, these ofFlcers

has taken1 to be attached to the record of the case: and It shall likewise be the duty of the clerk to demand that the stenographer comply with said. duty. The clerk of court shall stamp the date on which such notes are received by htm. When such notes are transcribed the transcript shall be delivered to the clerk, duly initialed on each page thereof, to be attached to , the record of the case. Whenever requested by a party, any statement made by a judge of First Instance, or by a commissioner, with reference toa case being tried by him, or to any of the parties thereto, or to any witness or attorney, during the hearing of such case, shall be made of record in the stenographic notes(Sec. 17, Rule 136, RRC). . .

LEGAL FEES

.

·

· ·.

'.

Au nst H,,'2004

... . · .

.

.

2. 3. 4.

6.

The following persons are also entitled to receive fees/ compensation under Rule 141:

1. 2.

3. 4.

Q: Plaintiff Jun Ahorro filed a complaint for collection of sum of money before the Regional Trial Court of Manila. Because of the large amount of his claim, he had to pay a sizeable docket fee. He insisted on paying the docket fee and other fees In Installments because staggered payment is allowed under Ru1e 14-1, as amended. The Office of the Clerk of Court (OCC) refused to accept the complaint unless he paid the full amount of the docket and other required fees. Plaintiff Jun Ahorro's position correct? (2013 Bar}

5.

Basis of the ameunt of fee in filing an action or proceeding

1. For filing an action or proceeding with SC, CA or Sandlganbayan for each action or proceeding, including petition for intervention, and for all services in the same -P3,000

2·01-SC, March 1, 2000).

.

. FEES IN LIEN.

,. .

. 2.

Where the court in its final judgment awards a claim not alleged, or a relief different from, or more than that claimed in the pleading, the party concerned shall pay the additional fees which shall constitute a lien on the judgment in satisfaction of said lien (Sec. 2, Rule 141, RRC).

UNIVERSITY OF SANTO TO MAS 2019 GOLDEN NOTES

Stenographers Witnesses Appraisers Commissioners in eminent domain proceedings Commissioners in the proceedings for partition of real estate

NOTE: The persons herein authorized to collect legal fees shall be accountable officers and shall be required to post bond in such amount as prescri~,ed by the law.

A: NO, docket and other required fees must be paid in full (Rule 141 as amended by A.M. No. 00. · .. . .

Appeals, Sandiganbayan and Court of Tax Appeals (Sec. 4, Rule 141, RRCJ. Clerks of Regional Trial Courts (Sec. 7 Rule 141, RRCJ. Clerks of Court of the First Level Courts (Sec. 8, Rule 141, RRCJ. Sheriffs, process servers and other persons serving processes (Sec. 10, Rule 141, RRC). Notaries (Sec. 12, Rule 141, RRC). Other officers taking depositions (Sec. 13, Rule 141, RRC).

· . •

Payment shall be made upon the filing of the pleading or other application which initiates an action or proceeding. The fees prescribed shall be paid in full upon filing of the pleading or application (Sec. 1, Rule 141, RRC).

222

•

L Clerks of the Supreme Court, Court of

5.

·. -.,'

MANNER OF PAYMENT ·. . .

and persons, together with their assistants and deputies, may demand, receive, and take the several fees hereinafter mentioned and allowed for any business by them respectively done by virtue of their several offices, and no more:

·

(RUJ:F.141, amended by 1\.M. NO. 04-2~04~SC, ·

ETHICS

For a petition for review from a decision of the RTC or of the Central Board of Assessment Appeals or a special civil action with the CTA or an appeal from a decision of a CTA Division to the CTA En Banc - P3,000.

•

other disadvantaged groups (Sec. 2(b), Art IV, A.M. No. 08-11-7-SC, August 28, 2009).

Sheriffs expense is NOT the same as Sheriffs

fees Sheriffs expenses are not exacted for any service rendered by the court; they are the amount deposited to the Clerk of Court upon filing of the complaint to defray the actual travel expenses of the sheriff, process server or other court-authorized persons in the service of summons, subpoena and other court processes that would be issued relative to the trial of the case. It is not the same as sheriffs fees under Section 10, Rule 141 of the Rules of Court, which refers to those imposed by the court for services rendered to a party incident to the proceedings before it (Re: Letter dated April 18, 2011 of Chief Public Attorney Persida Rueda-Acosta Requesting Exemption From the Payment Of Sheriffs

2, Merit Test - It refers to the ascertainment of whether the applicants cause of action or his defense is valid and whether the chances of establishing the same appear reasonable (Sec. 1 [!J, Art tt, A.M. No. 08-

11-7-SC, August 2 8, 2009 ). Requisites for the indigents to be able to enjoy exemption He must execute an affidavit that he and his immediate family do pot earn a gross income of an amount double' the monthly minimum wage of an employee; and they do not own any real property withthe fair value (as stated in the current tax declaration) of more than P300,000. This affidavit shall be supported by an affidavit of a disinterested person attesting to the truth of the litigant's affidavit The current tax declaration, if any, shall be attached to the litigant's affidavit [Set: 2(a), Art. IV, A.M. No. 08-11-7-SC, August 28, 2009).

Expenses, A.M. No.11·10-03-0,)uly 30, 2013). Persons exempt from payment of legal fees 1.

2,

Indigent litiJants Republic of the Philippines

NOTE: The clients of PAO shall be exempt from payment of docket and other fees incidental to instituting an action in court and other quasijudicial bodies, as an original proceeding or on appeal (Sec. 6, R.A. No. 9406). . '

. .

INDIGENT.LITIGANT

Any falsity in the affidavit of litigant or disinterested person shall be sufficient cause to dismiss the complaint or action or to strike out the pleading of that party, without prejudice to whatever criminal liability may have been incurred {Sec. 3 (e), Art. 5, A.M. No.

. . ·

Rule with regard toindigent litigants

08-11- 7-SC, August 28, 2009 ).

Indigent litigants are exempt from payment of legal fees. However, the legal fees shall be a lien on any judgment rendered in the case favorable to the indigent litigant unless the court otherwise provides(Sec. 21, Rule 3, RRCJ.

Rule as to Republic of the Philippines GR: The Republic of the Philippines, its agencies and instrumentalities are exempt from paying the legal fees provided in the rule.

•

Tests of Indtgency XPN: Local governments and governmentowned or controlled corporations with or without independent charters are not exempt from paying such fees.

L Means Test - It refers to the set of criteria used to determine whether the applicant is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family (Sec. 1(e), Art. II, A.M. No. 08-11-7-SC, August 28,

However, all court actions, criminal or civil, instituted at the instance of the provincial, city or municipal treasurer or assessor under Sec. 280 of the Local Government Code of 1991 shall be exempt from the payment of court and sheriffs fees.

2009). NOTE: The Means Tests is not applicable to applicants who fall under the developmental legal aid program such as overseas workers, fisherfolk, farmers, laborers, Indigenous cultural communities, women, children and

· .

· . · MEDIATION.FUND q

. .

·

Purpose of medlatlomfund I

223

u N [VERSJTY

OF SANTO TOMAS~ FACULTY OF CIVIL LAW

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•

JUDICIAL

ETHICS

The fund shall be utilized for the promotion of court-annexed mediation and · other relevant modes of alternative dispute resolution (ADR), training of mediators, payment of mediator's fees, and operating expenses of the Philippine Mediation Center (PMC) units including expenses for technical assistance and organizations/individuals, transportation/communication expenses, photocopying, supplies and equipment, expense allowance and miscellaneous expenses, whenever necessary, subject to auditing rules and regulations.

•

Fees do NOT form part of the Judiciary Development Fund The mediation fees shall not form part of the Judiciary Development Fund QDF) under P.D. No. 1949 nor of the special allowances granted to justices and judges under Republic Act No. 9227.

•

The amount collected shall be receipted a·nd separated as part of a special fund to be known as the "Mediation Fund" and shall accrue to the SC-PHJLJA-PMC Fund, disbursements from which are and shall be pursuant to guidelines approved by the Supreme Court(Sec. 4 and Sec. 6, OCA Circular Nu.15·2016)

·;\

Exceptions in paying mediation fees The following are exempt from contributing to the mediation fund: 1.

Pauper litigant; and NOTE: However, the court shall provide

that the unpaid contribution to the Mediation Fund shall be considered a lien on any monetary award in a judgment favorable to the pauper litigant. 2. Accused-appellant

"R

UNIVERSITY

OF SANTO TOMAS NOTES

~... "' /*'1 2019 GOLDEN

224 .... ~

,_j

COSTS ·.

·

·

. . : ·> .' .. ..

'

COSTS· RULE 142

· . . .

Honda Accord owned by Sps. Tan occurred on Aug. 28, 1996. Sps. Tan filed a complaint in the MTCC which was ruled in their favor. Maglana Rice appealed, but the RTC upheld

·. · . .

. · .. RECOVERY OF COSTS .

. .•

the MTCC, An appeal and the MR to the CA Costs allowed to a prevailing party

were later denied by the CA, hence, Maglana Rice appealed to the Supreme Court. ls th~ appeal frivolous?

GR: Costs shall be allowed to a prevailing party

A: YES, the rejection by CA indicated that the

as a matter of course. However, the court shall have power, for special reasons, to adjudge that either party shall pay the costs of an action, or that the same be divided, as may be equitable

three lower courts with legal capacity and official function to resolve issues, all found the same set of facts. In this recourse, Maglana Rice presented no ground sufficient to persuade the court to warrant a review of the uniform findings of fact. Given the frivolousness of the appeal, the court imposes treble costs of suit on Maglana Rice under Rule 142 (Maglana Rice and Corn Mill Inc. v.

· .. , .

. .

·:

PREVAILING PARTY .

.

...

·

(Sec. 1, Rule 142, RRC). XPN: Unless otherwise provided in these rules

Costs to the Republic of the Philippines

Tan, G.R. No. 159051, September 21, 2011). GR: Costs shall not be allowed against the Republic of the Philippines (Sec. 1, Rule 142,

.

·

.

FALSEALLEGATIONS

. ·

RRC). False allegations XPN: Unless otherwise provided by law.

An averment in a pleading made without reasonable cause and found untrue {Sec. 4, Rule 142, RRC).

Q: Is the Land Bank of the Philippines liable

to the cost of suit in the performance of a governmental function such as disbursement of agrarian funds to satisfy awards of just compensation?

A false allegation made without reasonable cause and found untrue shall subject the offending party to the payment of reasonable expenses as may have been necessarily incurred by the other party by reason of such untrue pleading. The amount shall be fixed by the judge and shall be taxed as costs {Sec. 4, Rule 142, RRC).

A:NO, the Land Bank of the Philippines is in the performance of a governmental function in an agrarian reform proceeding, hence, according to Rule 142, it is exempt from the payment of costs of suit (Land Bank of the Philippines v. Rivera,

G.R. No. 182431, November17, 2010). . · NON-APPEARANCE ·

DfSMISSED APPEAL OR ACTION . ·

• '

Power of the court to render judgment for costs even if an appeal has been dismissed

FRIVOLOUS APP~AL

If a witness fails to appear at the time and place specified in the subpoena issued by any inferior court, the costs of the warrant 'of

arrest and of the arrest of the witness shall be borne bv him, If the court determines that his

If an action or appeal is dismissed, for want of Jurisdiction or otherwise, the court retains the power to render judgment for costs, as justice may require {Sec. 2, Rule 142, RRC). . · .· ·. ·

OF WITNESSES

:

failure to answer the, 'subpoena was willful and without just excuse (Sec. 12, Rule 142,. RRC).

•.. .;

If an appeal is deemed frivolous, double or treble costs shall be imposed on the plaintiff or appellant, which shall be paid by his attorney, if so ordered by the Court {Sec. 3, Rule 142, RRC). •

•

Q: A vehicular accident between a Fuso truck owned by Maglana Rice and Corn Mill and a

225

lJNl\'ERSITY OF SANTO TOMAS¢* FACULTY OF CIVIL LAW ·y

LEGAL FORMS [

~ ·

',,' : ·

~-----~J

L_EG_A_L_F_OR_M_S

·

. DEMAND LETTER UNPAID RENT.

. ·.

.

:

. LETTER DATE

•

NAME or LESSOR Address of Lessor

MR./MRS./MS. (NAME OF LESSOR):

RE: UNPAID RENT My client, (NAME OF CLIENT),the landlord of (DESCRIPTION OF PROPERTY),endorsed to me the matter of your overdue accountability in the amount of (AMOUNT IN WORDS) (P ), representing your unpaid rentals. Despite my client's several demands, you refused to settle the accountup to present. In view thereof, you are hereby given TEN {10} DAYS from receipt hereof to pay the foregoing amount of (AMOUNT IN WORDS) (P ), plus __ % interest) starting (DUE DATE OF PAYMENT), and_% collection fee; otherwise, I shall be constrained to file the necessary legal action against you to collect the foregoing amount, plus _% attorney's fees thereon as well as litigation expenses. If you have any inquiry, please contact me at (CONTACT DETAILS). Sincerely, ATTY. (NAME OF COUNSEL) Counsel for (Name of Client) .

·

·

· ·

.

. AUTHO(UZATION LETTER

. . ,

.

..

.

NAME OF SENDER Address of Sender LETTER DATE NAME OF RECEIVER Address of Receiver DEAR MR,/MRS./MS. (NAME OF RECEIVER):

AUTHORIZATION LETTER I, (NAME OF SENDER), hereby authorize my (RELATIONSHIP), (NAME OF REPRESENTATIVE),toact on my behalf in all matters dealing with (SUBJECT MATTER), to file and receive (DOCUMENTS/COPIES/PAYMENTS), including signing of all documents relating to these matters. Any and all acts of (NAME OF REPRESENTATIVE) shall have the same effect as acts of my own. This letter ofauthorization will be in effect from (STARTING DATE) to (END DATE). If you have any question, feel free to contact me on (CONTACT DETAILS OF SENDER) for any further clarification needed.

(ii\ \'•) • ,.1-."'

UN I VE RS I TY O F SA NT O TO M AS 2019 GOLDEN NOTES

226 ;i

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:

LEGAL FORMS Sincerely, NAME OF SENDER Title of Sender Date of Signature · ..

.

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·· ·

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.

.

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LEASE CONTRACT

··

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· .

!:fillIBAGIPELEA.S.5 KNOW ALL MEN BY THESE PRESENTS: This CONTRACT OF LEASE is made and executed at the City of _ __, this day.,of and between:

_. 20___, by j

(NAME OF LESSOR), of legal age, single/married to (NAME OF SPOUSE, IF ANY),Filipino, and with residence and postal address at (Address), hereinafter referred to as the LESSOR. ·AND{NAME OF LESSEE), Filipino and with residence and postal address at (ADDRESS), hereinafter referred to as the LESSEE. WITNESSETH; That WHEREAS, the LESSOR is the owner of THE LEASED PREMISES, a residential property situated at (Address of property to be leased); WHEREAS, the LESSOR agrees to lease-out the property to the LESSEE and the LESSEE is willing to lease the same; NOW THEREFORE, for and in consideration of the foregoing premises, the LESSOR leases unto the LESSEE and the LESSEE hereby accepts from the LESSOR the LEASED premises, subject to the following: ,., TERMS AND CONDITIONS

•

1. PURPOSES: That premises hereby leased shall be used exclusively by the LESSEI! for residential purposes only and shall not be diverted to other uses. It is hereby expressly agreed that if at any time the premises are used for other purposes, the LESSOR shall have the right to rescind this contract without prejudice to its other rights under the law. 2. TERM: This term of lease is for ONE (1) YEAR. from (Date) to (Date) inclusive. Upon its expiration, this lease may be renewed under such terms and conditions as may be mutually agreed upon by both parties, written notice of intention to renew the lease shall be served to the LESSOR not later than seven (7) days prior to the expiry date of the period herein agreed upon. 3. RENTAL RATE: The monthly rental rate for the leased premises shall be in (AMOUNT IN WORDS) (P ), Philippine Currency. All rental payments shall be payable to the LESSOR. 4. DEPOSIT: That the LESSEE shall deposit to the LESSOR upon signing of this contract and prior to move-in an amount equivalent to the rent for THflEE (3) MONTHS or the sum of (AMOUNT IN WORDS) (P ), Philippine Currency, wherein the two (2) months deposit shall be applied as rent for the 11th and 12th months and the remaining one (1) month deposit shall answer partially for damages and any other obligations, for utilities, such as Water, Electricity, CATV, Telephone, Association Dues or resulting from violation(s) of any of the provision of this contract.

UNIVERSITY

227

OF SANTO To1us OF CIVIL LAW

FACULTY

(ti ·y·

•

LEGAL FORMS 5. DEFAULT PAYMENT: In case of default by the LESSEE in the payment of the rent, such as when the

checks are dishonored, the LESSOR at its option may terminate this contract and eject the LESSEE. The LESSOR has the right to padlock the premises when the LESSEE is in default of payment for ONE (1) MONTH and may forfeit whatever rental deposit or advances have been given by the LESSEE.

• 6, SUB·LEASE: The LESSEE shall not directly or indirectly sublet, allow or permit the leased premises to be occupied in whole or in part by any person, form or corporation, neither shall the LESSEE assign its rights hereunder to any other person or entity and no right of interest thereto or therein shall be conferred on or vested in anyone by the LESSEE without the LESSOR'S written approval. 7. PUBLIC UTILITIES: The LESSEE shall pay for its telephone, electric, cable TV, water, Internet, association dues and other public services and utilities during the duration ofthe lease. 8. FORCE MAJEURE: If whole or any part of the leased premises shall be destroyed or damaged by fire, flood, lightning, typhoon, earthquake, storm, riot or any other unforeseen disabling cause of acts of God, as to render the leased premises during the term substantially unfit for use and occupation of the LESSEE, then this lease contract may be terminated without compensation by the LESSOR or by the LESSEE by notice in writing to the other.

•

9. LESSOR'S RIGHT OF ENTRY: The LESSc5R or its authorized agent shall after giving due notice to the LESSEE shall have the right to enter the premises in the presence of the LESSEE or its representative at any reasonable hour to examine the same or make repairs therein or for the operation and maintenance of the building or to exhibit the leased premises to prospective LESSEE, or for any other lawful purposes which it may deem necessary. 10, EXPIRATION OF LEASE: At the expiration of the term of this lease or cancellation thereof, as herein provided, the LESSEE will promptly deliver to the LESSOR the leased premises with all corresponding keys and in as good and tenable condition as the same is now, ordinary wear and tear expected devoid of all occupants, movable furniture, articles and effects of any kind. Non-compliance with the terms of this clause by the LESSEE will give the LESSOR the right, at the latter's option, to refuse to accept the delivery of the premises and compel the LESSEE to pay rent therefrom at the same rate plus Twenty Five (25) % thereof as penalty until the LESSEE shall have complied with the terms hereof. The same penalty shall be imposed in case the LESSEE fails to leave the premises after the expiration of this Contract of Lease or termination for any reason whatsoever. 11. JUDICIAL RELIEF: Should any one of the parties herein be compelled to seek judicial relief against the other, the losing party shall pay an amount of ONE HUNDRED (100)% of the amount claimed in the complaint as attorney's fees which shall in no case be less than FIFTY THOUSAND PESOS {PS0,000.00) in addition to other cost and damages which the said party may be entitled to under the law. 12. This CONTRACT OF LEASE shall be valid and binding between the parties, their successors-ininterest and assigns. IN WITNESS WHEREOF, parties herein affixed their signatures on the date and place above written. (NAME OF LESSEE) Lessee

(NAME OF LESSOR) Lessor

SIGNED IN THE PRESENCE OF:

WITNESSNO. 2

WITNESS N0.1

ACKNOWLEDGMENT

r•g\

UN I VER SI TY OF SA NT O TOM AS GOLDEN NOTES

!1111·1 2019 t.., .-1 ..':;

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228

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LEGAL FORMS REPUBLIC OF THE PHILIPPINES) CITY/MUNICIPALITY OF_) SS.

BEFORE ME, a Notary Public for and in the (Province/City/Municipality) of __ __, personally appeared the following persons, with their respective Community Tax Certificates as follows: NAME

DATE/ PLACE ISSUED

C.T.C. NO.

1. (NAME OF LESSOR) 2. (NAME OF LESSEE) Known to me and to me known to be the same persons who executed the foregoing instrument and acknowledged to me that the same are their free act and voluntary deed. This instrument, consisting of(_) pages, including the page on which this acknowledgment is written, has been signed on the left margin of each and every page thereof by the concerned parties and their witnesses, and sealed with my notarial seal. WITNESS MY HAND AND SEAL on this _day of

20_ at

_

NAME OF NOTARY PUBLIC Notary Public Doc.No, __

;

Page No. __ ; Book No. __ ; Series of ; · · :·

..

·

· ·

•

DEEP Of ABSOLUTE SALE

. ·. · ..

.

.

•

KNOW ALL MEN BY THESE PRESENTS: This DEED OF ABSOLUTE SALE is made, executed and entered into by: (NAME OF SELLER), of legal age, single/married to (NAME OF SPOUSE, IF ANY), Filipino, and with residence and postal address at (ADDRESS OF SELLER), hereinafter referred to as the SELLER -AND· (NAME OF BUYER), Filipino and with residence and postal address at (ADDRESS OF BUYER), hereinafter referred to as the BUYER. WITNESS ETH;

•

WHEREAS, the SELLER is the registered owner of a parcel of land with improvements located at (Address of property to be sold) and covered by 1'iansfer Certificate of Title No. (TCT Number) containing a total area of (Land Area of Property in Words) (000) SQUARE METERS, more or less, and more particularly described as follows: TRANSFER CERTIFICATE OF TITLE NO. XX.XX (Technical Description Of The Property On The Title) Example: A PARCEL OF LAND (Lot 20 Blk 54 of consolidation subdivision plan (LRC) Pcs-13265, being a portion of the consolidation of Lots

229

UNIVERSITY

OF SANTO TOMAS~

FACULTY

OF CIV1L LAW

·y

LEGAL FORMS 4751-A and 4751-B (LRC) Psd-50533, Lot 3, Psd-100703, Lot 1, Psd-150980, LRC Rec. Nos. Nos. N· 27024, 51768, 89632, N-11782, N-13466, and 21071 situated in 'the Bo. bf San Donisio, Mun of Paranaque, Prov of Rizal, Is. of Luzon. Bounded on NE., point 4 to 1 by Road Lot 22, on.to the point of beginning; containing an area of (280) square meters more or less." ·

•

WHEREAS, the BUYER has offered to buy and the SELLER has agreed to sell the above mentioned property for the amount of (AMOUNT IN WORDS) (P ) Philippine Currency; NOW THEREFORE, for and in consideration of the sum of (AMOUNT IN WORDS} ) Philippine Currency, hand paid by the vendee to the vendor, the SELLER DO HEREBY SELL, TRANSFER, and CONVEY by way of Absolute Sale unto the said BUYER, his heirsand assigns, the certain parcel of land together with all the improvements found thereon, freefrom all liens and encumbrances of whatever nature including real estate taxes as of the date of this sale. (P.

•

(NAME OF BUYER) Buyer

(NAME OF SELLER) Seller WITH MARITAL CONSENT:

NAME OF BUYER'S SPOUSE Buyer's Spouse

NAME OF SELLER'S SPOUSE Seller's Spouse

SIGNED IN THE PRESENCE OF:

WITNESS NO. 2

WITNESS N0.1.

REPUBLIC OF THE PHILIPPINES)

CITY/MUNICIPALITY OF __ ) SS. BEFORE ME, a Notary Public for and in the (Province/City /Municipality) of _., personally appeared the following persons, with their respective Community Tax Certificates as follows: NAME 1. (NAME OF SELLER) 2. (NAME OF BUYER}

DATE/ PLACE ISSUED

C.T.C. NO.

Known to me and to me known to be the same persons who executed the foregoing instrument and acknowledged to me that the same are their free act and voluntary deed. This instrument, consisting of (_) pages, including the page on which this acknowledgment is written, has been signed on the left margin of each and every page thereof by the concerned parties and their witnesses, and sealed with my notarial seal. WITNESS MY HAND AND SEAL on this _day cf

_

20_at~--NAME OF NOTARY PUBLIC Notary Public

Doc.No, __

;

Page No. __ ; Book No. __ ; Series of __ ;

(·,.M·\.

\.V

UNIVERSITY OF SANTO 2019 GOLDEN NOTES

TOMAS

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230

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LEGAL FORMS ·

. : : , . ·. : , .

· .

SPECIAL POWI;:R OF ATtORNEY. : ".'

·

. · .. . ·

SPECIAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS:

I, (NAME OF PRINCIPAL), single/married to(NAME OF PRINCIPAL'S SPOUSE, IF ANY), of legal age, with residence and postal address at (ADDRESS OF PRINCIPAL)do hereby APPOINT (NAME OF AGENT),single/married to (NAME OF AGENT'S SPOUSE, IF ANY), likewise of legal age, with postal address at (ADDRESS OF AGENT)whose specimen signature appears below, to be my true and lawful Attorney-in-fact, for me and in my name, place and stead, and for my own use and benefit to do the following acts and deeds: 1. To sell, offer for sale, and come to an agreement as to the purchase price and thereafter to sign for me and in my name and receive payment from the sale of my property more particularly described as follows: (Technical Description of the Property on the Title)

HEREBY GIVING AND GRANTING unto my said Attorney-In-fact full power and authority to do and perform all and every act and thing whatsoever requisite and necessary be done in and about the premises, as fully to all intents and purposes as I might or could lawfully do if personally present, and hereby ratifying and confirming all that rny said attorney-in-fact shall lawfully do or cause to be done by virtue of these presents.

to

____

IN WITNESS WHEREOF, I have hereunto set my hand at _,20_.

_, this_ day of

(NAME OF AGENT), Attorney-In-Fact

(NAME OF PRINCIPAL) Principal

SIGNED IN THE PRESENCE OF:

WITNESS NO. 1

•

WITNESS NO. 2

SUBSCRIBED AND SWORN to before me this at me his/her issued on and expiring on

_, Affiant exhibiting to

NAME OF NOTARY PUBLIC Notary Public Doc.No. __ ; Page No. __ ; Book No. __ ; Series of __ ; : . ·

. . : ·.

• ·.. ·

· .

VERIFICATiqN AND ~ERTIFICATE OF . · . . · NON-FORUM SHOPPING · . . . .

.

.·. .· · .. · . .· . .

VERIFICATIONAND CERTIFICATE OFNQN-FORUMSHOPPING. I, (NAME), of legal age, (CITIZENSHIP),single/married, and a resident of(,!\.DDRESS), after having been duly sworn to in accordance with law, hereby, depose and say: (I

UNIVERS1TY

231

OF SANTO TOl'tlAS OF CIVIL LAW

FACULTY

~

··y

LEGAL FORMS •

1. That I am the in the above-entitled case and have caused this to be prepared.'that I read and understood its contents which are true and correct ofmy own personal knowledge and/or based on authentic records.

2. That I have not commenced any action of proceeding involving the same issue in the Supreme Court, the Court of Appeals or any other tribunal or agency, that to the best of my knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals or any tribunal or agency, and that, if I should learn thereafter that a similar action or proceeding has been filed or is pending before these courts of tribunal or agency, I undertake to report that the fact to the Court within five (5) days therefrom. ____

IN WITNESS WHEREOF, I have hereunto affixed my signature at __. 20_.

, this_

day of

•

(NAME OF AFFIANT) Affiant ,SUBSCRIBED AND SWORN to before me this at me his/her issued on and expiring on

-Affiant exhibiting to _ NAME OF NOTARY

PUBLIC Notary Public Doc.No. __ ; Page No._; Book No. _ _; Series of __ ; · · .· .

..

..

·

· .

·

NOTICE OF HEARING

..

. ,

· · . .

.'

REPUBLIC OF THE PHILIPPINES

Plaintiff,

Civil Case No.-----

(Naghahabla)

(KasoSibilBlg.)

For Vs.

~----

(Para)

Defendant, (Hinahabla)

NOTICE OF HEARING (ABISO NG PAGDINIG} YOUR CASE IS SET for hearing before the Presiding Judge of this Court on

·~--~-at~~----~-~----~ (Ang iyongkaso ay diringgin ng Pinunonghukuman ________ __. ganapna

ng Hukumangitosa .)

YOU MUST ATTEND THE HEARING, IF YOU CANNOT ATTEND BECAUSE IT IS PHYSICALLY IMPOSSIJ3LE FOR YOU TO DO SO, YOU MAY AUTHORIZE A REPRESENTATIVE WHO IS NOT A 1,AWYER TO APPEAR FOR YOU. FOR THIS PURPOSE YOU SHOULD FILL UP FORM S·SCC (SPECIAL POWER OF ATTORNEY). ,.-\ \_. ,n...',./1

1

UNIVERSITY OF SANTO TOMAS GOLDEN NOTES

2019

232

LEGAL FORMS (KJNAKAILANGANNINYONG DUMALO SA PAGDJNIG. Kung hindi kaya ng katawanninyo an9 pagdalonang personal sapagdinig ng iyonqkaso, maaarikangmagpada/a ng iyongkinatawannahindi abogado sapagdinig. Sa ganitonglayunin, punuanninyo ang Form 5-SCC [Natatanging GawadKapangyarihan -Special power of attorney.])

WITNESS the HON. 20____, at

-----~

,___, Presiding Judge of this court, this_day Philippines.

(SaksisiKgg. ______ __, 20_ ditto sa

of

___, Pinunonqilukuman ng Hukumanqito, ngayong , Pilipinas.J

Branch Clerk of Court

{SangaynaKawaning Hukuman} NOTE: FOR INQUIRIES, CALL TEL.#

_

(Tula: Para sakatanungantumawagsa Korte sa Tel. Big. · · .' . . ·.. .. .

.

.

.)

EXPLANATION IN MOTIONS .

·,

.

·

..

·..

·

EXPLANATION The foregoing motion is being filed to the Honorable Court with copy theoreoffurnished to other party by registered mail due to distance of the undersigned to said other party, making personal filing and service thereof not practicable.

(NAME OF COUNSEL)

•

Counsel for Plaintiff/Defendant .

. .·

.

. :

. . JlJDICI/\L Ai:lill)J\VIT

·

20 IU HAR .

.

·

.

REPUBLIC OF THE PHILIPPINES

Civil Case No. For

Plaintiff,

_ _

-versus-

•

Defendant,

JUDICIAL AFFIDA\;IT OF (NAME OF AFFIANT) This Judicial Affidavit of (NAME OF AFFIANT) is executed to serve as his/her direct testimony in the instant case. This Judicial Affidavit is being offered to prove: (1) All the allegations in the ______ _, including all annexes appended thereto and which he/she respectfully requests to be marked as exhibits in this case; and (2) All other related matters, facts and circumstances relevant and material to this case. This Judicial Affidavit was taken at the office of Atty. at . Questions were propounded by Atty. and these questions, asked in the English/Filipino language, known and can be understood by the affiant, are numbered consecutively and each question is followed by the answer of the witness in the English/Filipino language.

233

UNIVERSITY

OF SANTO TOl'IAS ~ OF CIVH LAW ·y·

FACULTY

LEGAL FORMS

•

QUESTlONS AND ANSWERS 1. Q: Do you swear to tell the truth and nothing but the truth'? ANS: I do.

2. Q: Are you aware that you may face criminal liability for false testimony or perjury if you will not tell

the truth? ANS: lam. 3. Q: Please state your name, age address and occupation? ANS: I am _ years old, single/married,

and residing at

_

•

xxx That this affidavit is being executed to attes0t to the truthfulness facts which are based on my personal knowledge and belief.

and veracity of the foregoing

IN WITNESS WHEREOF, I have hereunto affixed my signature at --~-_,20_.

_, this_

day of

(NAME OF AFFIANT) Affiant SUBSCRIBED AND SWORN to before me this_ at , me his/her issued on and expiring on-----

___, Affiant exhibiting to

NAME OF NOTARY

PUBLIC Notary Public Doc.No. __ ; Page No. __ ; Book No. __ ; Series of __ ; SWORN ATTESTATION CLAUSE I, (NAME OF COUNSEL), of legal age, Filipino citizen, after having duly sworn to in accordance with law do hereby depose and say: 1. 2.

That I am the counsel of record of the plaintiff/defendant in the above-entitled case; That I personally conducted the foreging judicial affidavit of the plaintiff/defendant

(NAME

OF CLIENT); 2. 3.

__

That I hereby certify that l faithfully recorded the questions I asked and the answer of the witness; That I likewise certify that neither l nor any person then present coached the witness regarding the latter's answer.

IN WITNESS WHEREOF, I have hereunto affixed my signature at _,20_.

_, this_

day of

(NAME OF COUNSEL) Counsel for Plaintiff/Defendant

(1· ··-·~\

UNIVERSITY OF SANTO TOMAS GOLDEN NOTES

\ t• ..,.,.';/.1 2019

234 .j

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,. 1

LEGAL FORMS SUBSCRIBED AND SWORN to before me this at me his/her issued on and expiring on-----

__, Affiant exhibiting to

NAME OF NOTARY PUBLIC Notary Public Doc.No._; Page No._; Book No. __ Series of_; . .

;

..

.. .

JURAT FOR AN INDIVIDUAL AFFIANT .

SUBSCRIBED AND SWORN to before me, this (his/her) Community Tax Certificate No.

_, by _ issued at

.

·

.

who exhibited to me Philippines on

_

NAME OF NOTARY PUBLIC Notary Public Doc.No. __ ; Page No. __ ; Book No. _ _; Series of __ ; . · ... ·. .

·

.

··

·

· JURAT FOR "JOINT AFF.IANT

SUBSCRlBED AND SWORN to before me, this-~

.

'.

· ·

.

·

.

•

who exhibited to me

by

(his/her) Community Tax Certificate No. issued at on ____ who exhibited to me (his/her) Community Tax Certificate No.----_____ on _

. and by issued at

NAME OF NOTARY PUBLIC Notary Public Doc.No, __ ; Page No. __ ;

Book No._; Series of __ ·

;

• ACI
REPUBLIC ()F THE PHILIPPINES) CITY/MUNICIPALITY OF

.101

individual - One Part Instrument

· .

·

) S.S

ACKNOWLEDGMENT BEFORE ME, a Notary Public for and in the (Province/City/Municipality) of __, personally appeared with Community Tax Certificate No. ; issued on----at (and Tax Identification No. (T.I.N.) ), known to me and to me known to be the same person who executed the foregoing instrument which (he/she) acknowledged to me as (his/her) free and voluntary act and deed, consisting of only __ (_} page/s, including this page in which this Acknowledgement is written, duly signed by (him/her) and (his/her) instrumental witnesses on each and every page hereof.

235

UNIVERSITY OFSANTO TOMAS¢ FACULTY OF CIVIL LAW

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LEGAL FORMS WITNESS MY HAND AND SEAL this

at

_, Philippines.

NAME OF NOTARY PUBLIC Notary Public

Doc.No. __ ; Page No. __ ; Book No. __ ; Series of __ ; ·

·

.

• ACl{NOWLEDGEMENT:. B Individuals Multi-Par

Instrument • .

. · .

·

REPUBLIC OF THE PHILIPPINES) CITY/MUNICIPALITY OF __ ) SS. ACKNOWLEDGMENT llEFORE ME, a Notary Public for and in the' (Province/City/Municipality) of _, personally appeared the following persons, with their respective Community Tax Certificates as follows: NAME 1.

_

2. 3.

C.T.C. NO.

DATE/ PLACE ISSUED

_

all known to me and to me known to be the same persons who executed 'the foregoing instrument which they acknowledged to me to be their free and voluntary act and deed, consisting of only __ (_) page/s, including this page in which this Acknowledgement is written, duly signed by them and their instrumental witnesses on each and every page hereof. WITNF..SS MY HAND AND SEAL this----

at

_. Philippines.

NAME OF NOTARY PUBLIC Doc.No.__ Page No. __ Book No. __ Series of __ :.

Notary Public

; ; ; ;

· .·

MOTION FOR EXTENTlON.OF TIME·

0 FILE AN ANSWER

·

·

.

REPUBLIC OF THE PHILIPPINES

Civil Case No. For __ -,,-__

Plaintiff,

_

-versusDefendant,

MOTION FOR EXTENSION OF TIME TO FILE ANSWER Defendant to the Honorable Court most respectfully state: ('.•\

UNIVERSITY

OF SANTO Es

'1.IJII} 2 0 1 9 Go L D E N N OT 't~ "'

't

TOMAS

236

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LEGAL FORMS 1. They were given by the Honorable Court to submit their Answer in the above-entitled (15) days from service of the summons or until (ORIGINAL DATE);

case fifteen

2.As they are still in the process of gathering evidence including documents and testimonies of witnesses to be incorporated to their Answer, they request that they be given additional fifteen (15) days or until (REQUESTED DATE) to submit the Answer.

PRAYER WHEREFORE, defendants most respectfully pray that the Honorable Court GRANTS this Motion and give the defendants additional fifteen (15) days or until (REQUESTED DATE} to submit their Answer and supporting documents, if any. Other reliefs which are just and equitable in the premises are also prayed for.

(PLACE OF EXECUTION), Philippines, (DATE OF EXECUTION). ATTY. (NAME OF COUNSEL) Counselfor the Defendant Address of Counsel on Record Roll No. _ IBP No.-----PTR No. MCLE compliance

issued on (DATE OF ISSUANCE) Cert. No.--------

NOTICE OF HEARING THE CLERK OF COURT

•

Court Branch City /Municipality/

Province

ATTY. (NAME OF OPPOSING COUNSEL) Counsel for the Plaintiff Address of Counsel on Record

Greetings: Please take notice that the foregoing Motion for Extension of Time to File Answer shall be submitted for the consideration and approval of the Honorable Court on (REQUESTED DATE), at (tIME) or as soon as counsel and matter may be heard. ATTY. NAME OF COUNSEL Counsel for the Defendant Address of Counsel on Record

EXPLANATION The foregoing motion is being filed to the Honorable Court with copy theoreof furnished to other party by registered mail due to distance of the undersigned to said other party, making personal filing and service thereof not practicable.

COPY FURNISHED; NAME OF OPPOSING COUNSEL

Counsel for Plaintiff Address of Counsel on Record

237

UNIVERSITY

OF SANTO TOMAS¢! OF CIVIL LAW •••

FACULTY

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LEGAL FORMS

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: · : , , . . ' MOTION TO'DISMISS FOR LACK OF JURISDICTION.O.VER.THEPERSON

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REPUBLIC OF THE PHILIPPINES

Plaintiff,

Civil Case No. For

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-versusDefendant,

.M.QTION TO DISMISS COMES NOW the Respondent, INC., through the undersigned counsel, appearing especially and solely for this purpose, and to this Honorable Court, most respectfully moves for the dismissal ofthe Complaint on the following ground that THE HONORABLE COURT HAS NOT ACQUIRED JURISDICTIONOVER THE PERSON OF THE DEFENDING PARTY.

A cursory reading of the Summons and Return of Service would readily show that the copies of the Summons dated 08 May 2001 and the Complaint and its corresponding annexes were allegedly delivered and tendered upon the Movant INC. through a certain Maria Clara alleged to be the authorized personnel of Movant INC., Baco\od City on 29 August 2001. Copies of the said Summons and Return of Service that form part of the records on the case are hereto pleaded as integral part of this Motion; Said service of Summons, however, constitutes an improper service of summons amounting to lack of jurisdiction over the person of the herein Movant Corporation INC, since the summons was improperly served upon a person who is not one of those persons named or enumerated in Section 11, Rule 14 of the 1997 Rules of Civil Procedure upon whom service of summons shall be made; The material provision on the service of summons provided for in Section 11 of Rule 14 of the 1997 Rules of Civil Procedure reads as follows: "Section 11. Service upon domestic private juridical entity.· When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or In-house counsel" It bears no further emphasis that the service,ofthe summons was done on a person who is not included in the exclusive enumeration provided for under the said Section, as service was done only on an alleged authorized personnel of the Movant Corporation; This new revision of the Rules of Court for the service of summon is a clear departure from the old rule as stated in Section 13, Rule 14 of the Rules of Court which provided that: "SECTION 13.Service upon private domestic corporation or partnership. • If the defendant is a corporation organized under the laws of the Ph iii pplnes or a partnership duly registered, service may be made on the president, manager, secretary, cashier, agent, or any of its directors." It must be equally noted that the changes in the new rules are substantial and not just general semantics as the new rules restricted the service of summons on persons clearly enumerated therein. In effect, the new provision makes it more specific and clear such that in the case of the word "manager", it was made more precise and changed to "general manager", "secretary" to "corporate secretary", and excluding therefrom agent and director;

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LEGAL F'ORMS The designation of persons or officers who are authorized to accept summons for a domestic corporation or partnership is under the new rules, limited and more clearly specified, departure from which is fatal to the validity of the service of the summons and resulting in the failure of the court to acquire jurisdiction over the person of the respondent corporation.

WHEREFORE, it is respectfully prayed that the Complaint with respect to the Movant Corporation be dismissed for lack of jurisdiction over the person of the defendant. Other reliefs just and equitable are likewise prayed for. (PLACE OF EXECUTION), Philippines, (DATE OF EXECUTION). ATTY. (NAME OF OPPOSING COUNSEL) Counsel for the Respondent Address of Counsel on Record Roll No. _ IBP No. _ PTR No. . , issued on (DATE OF ISSUANCE) MCLE compliance Cert. No.------

THE CLERK OF COURT Court Branch City /Municipality/ Province

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ATTY. (NAME OF OPPOSING COUNSEL) Counsel for the Petitioner Address of Counsel on Record Greetings: Please take notice that the foregoing Motion to Dtsmlss shall bl! submitted for the consideration and approval of the Honorable Court on (REQUESTED DATE), at (TIME) or as soon as counsel and matter may be heard. ATTY. NAME OF COUNSEL Counsel for the Respondent Address of Counsel on Record

EXPLANATION The foregoing motion is being filed to the Honorable Court with copy theoreof furnished to other party by registered mail due to distance of the undersigned to said other party, making personal filing and service thereof not practicable.

COP)' FURNISHED1 NAME OF OPPOSING COUNSEL Counsel for Petitioner Address of Counsel on Record

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UNIVERSITY Of SANTO TOMAS~ FACULTY OF CIVJL LAW

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LEGAL FORMS .:

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MOTION

ro DECLARE DEFENDANT IN DEFAULT

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REPUBLIC OF THE PHILIPPINES

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Civil Case No. For. _

Plaintiff,

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-versusDefendant,

MOT(ON IO DECLARE DEFENDANT IN DEFAULT Plaintiff, by counsel and unto this Honorable Court, respectfully states: 1.The records of the Honorable Court show that Defendant {NAME OF DEFENDANT} was served with copy of the summons and of the complaint, together with annexes thereto on (DATE OF SERVICE); 2.Upon verification however, the records show that Defendant (NAME OF DEFENDANT) has failed to file his Answer within the reglementary period specified by the Rules of Court despite the service of the summons and the complaint;

3.As such, it is respectfully prayed that Defendant (NAME OF DEFENDANT) be declared in default pursuant to the Rules of Court and that the Honorable Court proceed to render judgment as the complaint may warrant.

PRAYER WHEREFORE, it is respectfully prayed that Defendant (NAME OF DEFENDANT) be declared in default pursuant to the Rules of Court and that the Honorable Court proceed to render judgment as the complaint may warrant. Other relief just and equitable are likewise prayed for. (PLACE OF EXECUTION), Philippines, (DATE OF EXECUTION).

ATTY. (NAME OF OPPOSING COUNSEL) Counsel for the Plaintiff Address of Counsel on Record Roll No, _ IBP No.-----PTRNo. issued on (DATE OF ISSUANCE) MCLE compliance Cert. No. _

NOTICE OF HEARING THE CLERK OF COURT Court Branch City/Municipality/ Province •

ATTY. {NAME OF OPPOSING COUNSEL) Counsel for the Defendant

Address of Counsel on Record •

{Rh

UNIVERSITY

,lfl.t':..1- 2019 t .......

OF SANTO TOMAS NOTES

GOLDEN

240 .,.)

LEGAL FORMS Greetings: Please take notice that the foregoing Motion to Declare Defendant in Default shall be submitted for the consideration and approval of the Honorable Court on (REQUESTED DATE), at (TIME) or as soon as counsel and matter may be heard. ATTY. NAME OF COUNSEL Counsel for the Plaintiff Address of Counsel on Record

.EXPLANATION The foregoing motion is being filed to the Honorable Court with copy theoreof furnished to other party by registered mail due to distance of the undersigned to said other party, making personal filing and service thereof not practicable.

COPY FURNISHED; NAME OF OPPOSING COUNSEL Counsel for Defendant Address of Counsel on Record ·.

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PROMISSORY.NOTE 2018 Bai ·

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FOR VALUE RECEIVED, I promise to pay without need of demand to the order of (NAME OF PAYEE), at his office at (ADDRESS OF PAYEE), the principal amount of {AMOUNT IN WORDS) (P ____ ), Philippine Currency, on or before (DATE OF PAYMENT). (DATE OF EXECUTION), {PLACE OF EXECUTION), Philippines. NAME OF MAKER Maker .

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AFFU)AVIT OF. LOSS

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REPUBLIC OF THE PHILIPPINES) Cl'l'Y/MUNICIPALITY OF _ _) SS.

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I, (NAME OF AFFIANT), Filipino, of legal age, residing at (ADDRESS OF AFFIANT), after having been sworn in accordance with law hereby depose and state: That I am the true and lawful owner of a certain motor vehicle which is more particularly described as follows: MAKE : SERIES : TYPE OF BODY : YEAR MODEL :

MOTOR NO. : SERIAL/CHASSIS NO. : PLATE NO. FILE NO. :

:

(Change the declaration below to the actual circumstances) That sometime in June of this year, I was looking for the original Certificate of Registration of my car but to my surprise, said Owner's original Copy could not found; That I took pains to look for said Certificate of Registration, but to no avail;

241

UNrVERSITY OF SANTO TOJliAS ~ FACULTY OF CIVIL LAW

LEGAL FORMS That I am executing this affidavit to attest to the truth of the foregoing and to request from the Land Transportation Officeof Angeles City, a copy of said Certificate of Registration. ___

IN WITNESS WHEREOF,I have hereunto affixed my signature at __,20_.

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__, this __ day of

(NAME OF AFFIANT) Affiant SUBSCRIBEDAND SWORNto before me this at me his/her issued on and expiring on-----

..., Affiant exhibiting to

NAME OF NOTARY PUBLIC Notary Public Doc.No. __ ; Page No. __ ; Book No. __ ; Series of __ ; , .

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. CHANGE OF NAME ·

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REPUBLIC OF THE PHILIPPINES) CITY /MUNICIPALITY OF __ ) SS.

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Petition No.

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PETITION FOR CHANGE OF FIRST NAME I, (NAME), oflegal age, [CITIZENSHIP),single/married,and a resident of (ADDRESS), after having been duly sworn to in accordance with law, hereby, depose and say: 1. I am the petitioner seeking the change of first name in:

a. b.

my Certificate of Live Birth the Certificate of Live Birth of

2.1/He/She was born on (DATE OF BIRTH) at (PLACEOF BIRTH). 3. The birth was recorded under registry number 4. The first name to be changed is from

to

.

5. The grounds for filing this petition are the following: (Ground selected should be explained/justified in separate sheet of paper to be attached to this form.) a. The first name is extremely difficult to write or pronounce; b. I have/He/She has habitually and continuously used _ known in the community with that first name; c. The first name is tainted with dishonor; d. The first name is ridiculous; e. The first name causes confusion; ·

and I/he/she is publicly

6. I submit the following documents to support this petition: (Use additional sheets, if necessary.) a.

fi\ \.,,!}

UNIVERSITY OF SANTO 2019 GOLDEN NOTES

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LEGAL FORMS b. c. d. e. 7. I have/He/She has not filed any similar petition and that, to the best of my knowledge, no other similar petition is pending with any LCRO, Court or Philippine Embassy/Consulate. 8. I have/He/She

has no pending criminal, civil or administrative

case in any court or quasi-judicial

body. 9. I am filing this petition at the Philippine Consulate of {CITY/STATE/COUNTRY) RA. 9048 and its implementing rules and regulations.

in accordance with

NAME OF PETITIONER Petitioner

VERIFICATION I, (NAME OF PETITIONER), the petitioner, hereby certify that the allegations herein are true and correct to the best of my knowledge and belief.

• NAME OF PETITIONER Petitioner SUBSCRIBED AND SWORN to before me this at to me his/her issued on and expiring on

~ Petitioner exhibiting _

NAME OF ADMINISTERING OFFICER Administering Officer Doc.No. __ ; PageNo. __ i Book No. __ ; Series of __ ; .. ·

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AFFIDAVIT SAMPLE

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REPUBLIC OF THE PHILIPPINES NATIONAL CAPITAL JUDICIAL REGION METROPOLITAN TRIAL COURT MAKATI CITY, BRANCH x BANK OF LUZON Plaintiff,

-versus-

CIVIL CASE NO. xxxx For: SUM OF MONEY

JOSE REYES Customer No. xxxxxxxxxx Defendant,

X···················································X AFFIDAVIT 243

UNIVERSITY OF SANTO TOMAS~ 1:-'ACULTY OF CIVIi. LAW ·y

LEGAL FORMS I, MARIBEL A, CRUZ, of legal age, and resident of 20 Altura St, Sta. Mesa Manila, after having duly sworn to in accordance with law, hereby depose and say that:

•

1. I am an Account Specialist of Bank of Luzon, (hereafter referred to as "BL") a corporation engaged in • the credit card business under the name and s~le "BL Card" and with principal office at Paseo de Roxas, Makati City. 2. As Account Officer presently assigned with the Collection/Legal Department of the corporation, I handle the records and monitor payments of delinquent cardholders, send demand letters to them, and actively participate in the collection of the obligations of the cardholders. I have also been authorized to represent the corporation in court cases involving collections as may be gleaned from by Special Power of Attorney issued by the said corporation, which is hereto attached as Exhibit "A" and Corporate Secretary's Certificate as Exhibit "A-1". 3. In the course of the performance of my duties, functions and responsibilities as Account Officer of the corporation, I came to know that Jose Reyes applied with the corporation for the issuance of BL Card under Customer Number xxxx-xxxx,became some of the delinquent accounts that I am handing and monitoring. A copy of the BL signed Application Form is hereto and made an integral part hereof and marked as Exhibit "B" and signature of the defendant Jose Reyes who applied for BL Credit Card is bracketed and marked as Exhibit "B-1", A copy of the BL Credit card package delivery receipt is hereto attached and made an integral part hereof and marked as Exhibit "C" and the name and signature of the defendant Jose Reyes marked the said Delivery Receipt is attached and marked as Exhibit "C·l" and the terms and conditions for the issuance and use of the BL card issued to the defendant is marked as Exhibit "C-2". 4.As part of the terms and conditions for the issuance and use or availment of the BL card issued to the defendant, the latter expressly agreed that she will keep track of her total obligations with the plaintiff so as not to exceed the approved credit limit In addition, he also expressly agreed to pay the plaintiff, without necessity of demand, on the date indicated in the monthly statement of account containing a summary of all purchase/charges made through the use of said credit card. He further expressly agreed that the said charges or balance thereof, remaining unpaid after the due date indicated in the statement of account shall bear a finance charge at the rate of 3.5% based on the average balance and a late payment charge at the rate of 6% for every month or a fraction of a month's delay. 5. On several occasions, the defendant through the use of his BL card, purchased goods and/or services on credit as shown by the Ledgers/Monthly Statements of Account sent to her which are hereto attached and made Integral parts hereof as follows: a. The Ledger of Account dated September 06, 2009 with total amount due in the sum of P263,817.11 marked as Exhibit "D". b. The Ledger/Statement of Account dated July 06, 2008 with total amount due in the sum of Pl00,150.88 marked as Exhibit "D·· 1". c.

The Ledger/Statement of Account dated August 08, 2008 with total amount due in the sum of P104, 902.87 marked as Exhibit "D-2".

d, The Ledger/ Statement of Account dated September 07, 2008 with total amount due in the sum of Pl00,518.27 marked as Exhibit "D-3". e.

Jl'I-.,,.

{1.!1\ \,~}

The Ledger/ Statement of Account dated October 05, 2008 with total amount due in the sum of P103.438.53 marked as Exhibit "D-4''.

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LEGAL FORMS f.

The Ledger/ Statement of Account dated November 05, 2008 with total amount due in the sum of P109,413.11 marked as Exhibit "D-5".

g.

The Ledger/ Statement of Account dated December 07, 2008 with total amount due in the sum of P116,131.47 marked as Exhibit "D·6".

h.

The Ledger/ Statement of Account dated January 05, 2009 with total amount due in the sum of P121,543.86 marked as Exhibit "D-7".

i.

The Ledger/ Statement of Account dated February 05, 2009 with total amount due in the sum of P156,607.37 marked as Exhibit "D-8".

j.

The Ledger/ Statement of Account dated March 06, 2009 with total amount due in the sum of P169,259.02 marked as Exhibit "D-9".

k.

The Ledger/ Statement of Account dated April 06, 2009 with total amount due in the sum of ?'182,954.60 marked as Exhibit "D-10".

l.

The Ledger/ Statement of Account dated May 05, 2009 with total amount due in the sum of ?195,661.68 marked as Exhibit "D:ll".

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m. The Ledger/ Statement of Account dated June 07, 2009 with total amount due in the sum of P211,588.04 marked as Exhibit "D-12", n.

The Ledger/ Statement of Account dated July OS, 2009 with total amount due in the sum of P227,776.30 marked as Exhibit "D-13". ·

o.

The Ledger/ Statement of Account dated August 05, 2009 with total amount due in the sum of P244,804.24 marked as Exhibit "0·14".

6. Because the defendant defaulted on his obligation for the use of his credit card, demands were made for his to failure to pay his obligation, a copy of demand letter dated August 17, 2009 addressed to defendant Jose Reyes and received by guard Ruel and August 26, 2009 addressed to defendant Jose Reyes and received by Defendant himself are hereto attached and made an integral part hereof as Exhibit "E","E·l,"E-2" and "E-3" respectively. •

7. As a consequence thereof, plaintiff engaged the services of its external 'counsel, Atty. Fe Laurel, for which the plaintiff agreed to pay 25% of the total amount due as and by way of attorney's fees for the purpose of enforcing its claim against the defendant.

8. Thus, the plaintiff through the above-mentioned docketed as Civil Case No.

counsel, filed complaint against Jose Reyes, and

xxxx which is pending before Metropolitan Trial Court in Makati City, Branch

x, IN WITNESS WHEREOF, I have hereunto set my hand this_

day of_

2010 at Makati City.

MARIBEL CRUZ Affiant

SUBSCRIBED AND SWORN to before me in the City of Makati this_ day of_ exhibited to me her Comm. Certificate No. 03861183 issued at Manila on March 4, 2009.

2010, affiant

NAME OF NOTARY PUBLIC Notary Public

245

UNIVERSITY OF SANTO TOll'IAS FACULTY OF CIVIL LAW i·,

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LEGAL FORMS

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QUITCLAIM IN LABOR CASES .

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KNOW ALL MEN BY THESE PRESENTS: That I, Filipino, of legal age, a resident of , and formerly employed with do by these presents acknowledge receipt of the sum of ---·---' Philippine Currency, from ------· in full payment and final settlement of the (financial assistance or separation pay, overtime pay, salary or salaries, wage or wages, commutable sick and vacation leaves, gratuities or any kind of compensation or emoluments) due to me or which may be due to me from under the law or under any existing agreement with respect thereto, as well as any and all claims of whatever kind and nature which I have or may have against arising from my employment with (and the termination of my employment with . In consideration of said payment, l do hereby quitclaim, release, discharge and waive any and all actions of whatever nature, expected, real or apparent, which I may have against its directors, officers, employees, agents and clients by reason of or arising from my employment with the company. I will institute no action, whether civil, criminal, labor or administrative against ____ _, its directors, officers, employees, agents and clients. Any and all actions which l may have commenced either solely in my name or jointly with others before any office, board, bureau, court, or tribunal against its directors, officers, employees, agents and clients are hereby deemed and considered voluntary withdrawn by me and I will no longer testify or continue to prosecute said action(s).

I declare that l have read this document and have fully underscood its contents. I further declare that I voluntarily and willingly executed this Release, Waiver and Quitclaim with full knowledge of my rights under the law. ___

IN WITNESS WHEREOF, _,20_.

have hereunto

set my hand

at

this _

day of

(NAME OF AFFIANT) Affiant

SIGNED IN THE PRESENCE OF:

WITNESS NO. 2

WITNESS N0.1

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JI 0\

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