ATENEO DE DAVAO UNIVERSITY

COLLEGE OF LAW

How Far Can Lawyers Go to Protect the Clients Interest

In Partial Fulfillment Of the Requirements in Problem Areas in Legal Ethics Atty. January Faye Risonar-Bello

By Rizada, Resci Angelli Nartatez, Carell Ryza Quibod, Kristine Mae Tumanda, Raia Angelie De Castro, Ian Julius Galagar, Philip Bote, Karina Ana

April 24, 2013

LAWYER AS CLIENT PROTECTOR

How Far Can Lawyers Go to Protect Clients Interest Consider this situation: Your client is a small business tenant who is involved in a civil dispute with his landlord regarding whether the lease entitles him to use certain space in the basement of the building for the storage of inventory items. You have demanded that the landlord give the client access to the space but the landlord will not agree unless your client agrees to pay significantly more rent. During the course of the representation you discover that the landlord has failed to maintain the property in accordance with local building codes that may subject him to criminal prosecution. Can you threaten to report the landlord to the appropriate authorities if he fails to agree to your settlement terms? Litigation is both romanticized and vilified in modern Philippine culture. Trial lawyers are often seen as the briefcase warriors of right, truth, and justice, protecting individuals' rights and advancing the common good. Yet, simultaneously, and by the very same people, litigators are also seen as the personification of avarice and self-centeredness, profiting from multi-million peso verdicts that drive good doctors out of practice and encouraging frivolous lawsuits. These disparate images in the popular imagination reflect the moral complexity of the trial lawyer's role and form the societal backdrop of professional regulation in this area. They also form the backdrop of the ideas presented by the academic and practicing lawyers all over the world. A critical issue facing the criminal justice system today is how best to promote ethical behavior amongst lawyers in client representation. The legal profession has left much of a lawyers day -to-day activity unregulated, in favor of a general, catch-all admonition to "seek justice." Professional norms are truly functional only if those working with a given ethical framework recognize the system's implicit dependence on character. A code of professional conduct in which this dependence is not recognized is both contentless and corrupting. As held in Suzuki v. Tiamson, Canon 19 of the Code of Professional Responsibility enjoins a lawyer to represent his client with zeal. However, the same Canon provides that a lawyers performance of his duties towards his client must be within the bounds of the law. Rule 19.01 of the same Canon requires, among others, that a lawyer shall employ only fair and honest means to attain the lawful objectives of his client. Canon 15, Rule 15.07 also obliges lawyers to impress upon their clients 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 clients 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 case Foronda v Guerrero1 was one of cases in which the Supreme Court had taken time to comment on overzealousness. It was also explicit therein the justification of the lawyer who was held to be overzealous and meted with a 2-year suspension. Atty. Foronda said:
It is basic that a counsel may resort to all legal reliefs and remedies available and to invoke all pertinent provisions of the law and rules, to protect the interest of a client in order that justice may be done and duly administered. In fact, it is not only the right of a counsel to do so but rather, it is his bounden and sacred obligation as an officer of the court and as an advocate who is tasked to protect the interest of a client within the bounds of law.

While he may have spoken the truth, this group believes that such zeal and dedication in protecting a clients causes are not reason enough to blur a lawyers first and most important duty as an officer of the court. This is because the court is ultimately the one who suffers when the lawyers bombard it with the filing of multiple pleadings and remedies, in the hopes of reviving their clients case or trying to get justice sway in their favour. But as lawyers, they should have known that equity does not work that way. There is nothing wrong with the primordial intent of advancing a clients causes, but it is also insult to the intelligence and dignity of a judge when a lawyer resorts to such desperate and ignorant acts just to delay the execution of a judgment against his client. In a similar case, Plus Builders, Inc. v Atty. Anastacio Revilla, Jr.2, the lawyer was alleged to have misused court processes with the intention to delay the execution of the decision through the filing of several motions, petitions for temporary restraining orders, and an action to quiet title despite the finality of the decision. Relative to the Foronda case, Atty. Revilla was even more unethical because he allowed nonlawyers to engage in the unauthorized practice of law by holding themselves out as his partners and associates in the law firm. However, his ultimate repentance for such gross misconduct mitigated the supposed 1-year suspension to just 6 months, as the court was very merciful to those who realize the wrong they have done and who openly admit to doing such wrongdoing. The Supreme Court had taken the chance to acknowledge that a lawyers overzealousness is still rooted on the intent to be the protector and champion of their clients cases. According to the Foronda case:
A lawyers devotion to his clients cause entitles him to deploy every honorable means to secure for the client what is justly due him or to present every defense provided by law to enable the latters cause to succeed ... In support of the cause of their clients, lawyers have the duty to present every remedy or defense within the authority of the law. This obligation, however, is not to be performed at the expense of truth and justice. This is the criterion that must be borne in mind in every exertion a lawyer gives to his case.

On a last note, the Supreme Court emphasized that every effort exerted in the defense of their clients right must be in line with the duty to assist in the speedy and efficient administration of justice.

1 2

(A.C. No. 5469. August 10, 2004) A.C. No. 7056, February 11, 2009)

In this paper, we move on to consider what we see as a critical context in which any consideration of lawyering skills should be set: professional ethics and personal values. The idea of a profession conventionally carries with it a collective commitment to ethical standard s. Being a good lawyer is about more than just technical competence, it begs the question to what ends should our skills be used? And that is an ethical question! We now explore how this issue is addressed (or not) in the Code of Professional responsibility and look at the general standards they set. We also will think about whether this kind of codified ethics is enough or whether a genuinely ethical standard of professionalism needs to be based on other internal or external criteria. Objectives This papers aims to: Demonstrate knowledge of major concepts, values and rules of legal system in the Philippines; Enable the recognition of the value conflicts inherent in legal practice; Introduce the main ethical and conduct responsibilities identified by the Code of Professional Responsibility; Enable a critical evaluation of the form, focus and content of professional conduct regulations; Provide the basis for evaluating ones own sense of ethics; and Encourage one to consider the relationship between ethics and the skills of legal problem-framing and problem solving.

Beyond Legal Ethics: The Distinctive Demands of Professionalism Professionalism must be distinguished from the more familiar topic of legal ethics. Over time, the latter has become synonymous with efforts in every jurisdiction to establish the minimum standards to which all members of a profession must adhere simply to maintain their licenses to practice. Professionalism, on the other hand, is aspirational in character. It is about lawyers at their best, rather than their acceptable least. This drive for superior quality is more, however, than simply a point of personal pride, for it is based in the professions profound importance to our social heritage: the indispensable connection of the practice of law to the maintenance of civil community everywhere. Professionalism is therefore the set of values that the legal system itself inspires in those who seek to preserve and extend that professional legacy. These demanding values are beyond the requirements of the rules of legal ethics. Certain basic duties are essential to law practice of any sort: for example, competence, diligence, loyalty to a client, honesty, independent judgment, and duties of confidentiality. Certain traits are sought to be identified in the discussion that follows. The Fundamental Values for Client Protection 1. an ethic of excellence: the courage and resolve to maintain the highest standards of legal acumen 2. an ethic of integritya duty to say no to a client when faced with inappropriate pressure 3. a respect for the system and rule of law: a duty to explain why one has professional limits 4. a respect for other lawyers and their work: recognizing the importance of professional civility

An Ethic of Excellence
Within the practice of law generally, the quality of an individuals work is an obvious point of departure, for little else matters if the job performed by the lawyer is second-rate or the clients interests have not been thoroughly addressed. All clients certainly deserve the lawyers appropriate attention and the full measure of his or her expertise. But as a matter of professionalism, excellence means more than just immediate skill of some sort. What is required is an ethic in the sense of an attitude a deeper sense of direction concerning how to conduct oneself as a professional, and what to expect from ones colleagues. While excellence might be associated with particular results, an ethic of excellence is a long-term commitment to providing the best service possible to a client, overcoming whatever obstacles, in terms of knowledge or circumstances that might compromise that responsibility. It demands, then, a special form of professional courage: To assist a client may sometimes place the lawyers own personal interests at risk, but that is professionalisms price. This critical aspect of professional character is not limited, however, to the individual lawyer it extends as well to groups of lawyers bound together professionally, whether in private firms, associations of law firms, corporate legal departments, government agencies, or otherwise. Within these entities, the ethic of excellence creates a responsibility of that group to develop internally an environment of excellence: an expectation that the firm or office will generate within itself the appropriate support services, intellectual resources, and thoughtful supervision that will enable its lawyers to flourish professionally, and thus be the strongest assets for their clients that they can be. Excellence in this setting means pressing for the highest common denominator. Case in Focus: THE ENRON CASE: Lawyers As Client Protectors Of Private Corporations The main question of the section of this report is, should disclosure of corporate fraud or anomalies of a client company be part of a lawyers duty? In this part of the report, the article of Deborah L. Rhode & Paul D. Patons Lawyers, Ethics, and Enron proved to be a good guide in tackling whether or no t the lawyer as a client protector of corporation face disclosure requirements. In Philippine Jurisdiction, a lawyer has four-fold duties. First, is to the Court. Second, is to the Client. Third, is to the Bar/Legal Profession; and the last one is to Society. Lawyers are expected to comply to these four duties to the best of his knowledge and with good fidelity. In the practice of Corporate Law, one thing is peculiar; generally, there is no litigation to speak of. Corporate Lawyers seldom went to the court to file pleadings and motions. Most of the time, these lawyers spend their time guiding their clients in making business decisions. The lawyers enlighten their clients in choosing what are the best paths that the law provides for business operation. Unlike, the regular lawyer contemplated under the Code of Professional Responsibility, the corporate lawyer faces three main groups to whom he has a sacred obligation to serve and protect.

First, would be the interest of the client. The client is either a private or a public corporation. Its primary goal is to profit. It takes the services of skilled lawyer, that the latter may give sound legal and business advices for the clients business. Second, would be the interest of the Society. Society constitutes the workers who rely on the Client Corporation for employment. They are the consumers of the products and services of the corporation. They are the regular man and women whose living standards depends on the vigor or on the weakness of the economy. Third, is the Government who regulates the cans and the cannot bes of the lawyer in fulfilling his obligation on the two mentioned groups. The latter makes sure that the lawyer will balance the interest of the client which is to profit and the interest of society to be protected from any injury resulting from corporate fraud. There are times, when the lawyer is placed between apparent conflicting interests. For example, some officers of the company wanted to stretch their business operation beyond on what is legally permissible. The lawyer in this case is tasked to improvised schemes for the company to comply requirements imposed by the law just to maintain the regularity of their operations. Overview of the Enron Case During the past years, Corporate Fraud became synonymous to the Enron Scandal. Enron is Held up as the way to NOT run a company. Former energy corporation rampant with corporate corruption and accounting fraud. The company positioned itself as a leader in the industry by falsifying accounting records company wide. In 2001 all was uncovered. By 2007, sold the majority of its remaining assets following the filing for bankruptcy following the revelation. For their involvement in the accounting scheme, many company executives paid very stiff fines, and some additionally went to jail3. Brief Summary of Enron Scandal4 Enron was a Houston-based natural gas pipeline company formed by merger in 1985. By early 2001, Enron had morphed into the 7th largest U.S. company, and the largest U.S. buyer/seller of natural gas and electricity. Enron was heavily involved in energy brokering, electronic energy trading, global commodity and options trading, etc. On October 16, 2001, in the first major public sign of trouble, Enron ann ounces a huge third-quarter loss of $618 million.
http://www.sfo.gov.uk/fraud/what-is-fraud/corporate-fraud.aspx http://www2.econ.iastate.edu/classes/econ353/tesfatsion/enron.pdf The Enron Scandal and Moral Hazard, Prof. Leigh Tesfatsion, Department of Economics Iowa State University
3 4

 On October 22, 2001, the Securities and Exchange Commission (SEC) begins an inquiry into Enrons accounting practices. On December 2, 2001, Enron files for bankruptcy. In 2001, the United States of America was rocked by the collapse of Enron, a multibillion dollar corporation that employed thousands of people and had affiliations right up to and including The White House itself.[2] The fall of Enron, once the seventh largest corporation in America, is more than the story of individual misconduct, greed, and deceit. As Senator Fred Thompson has rightly noted, the real scandal here may be from not what is illegal, but what is totally permissible. . . . The system is clearly not designed with the interest of the general public or the investor in mind. Enron and the other corporate scandals that have followed in its wake have focused new attention on longstanding problems, including inadequate disclosure obligations, conflicts of interest, offshore tax havens, and insider trading. All of these inquiries are essential for creating greater awareness of the structural features that permitted Enron and similar debacles to take place, and to ensure meaningful reform. Scrutiny of lawyers conduct is equally critical. Too many members of the legal profession were part of the problem, rather than the solution. [1, P625] When Enron crashed, employees were affected in several ways. Most obvious is the loss of employment for thousands of highly skilled and well paid employees, who were forced to try to find work elsewhere virtually overnight. To add insult to injury, many of these employees also had their life savings totally invested in Enron stock which was now worthless. Unemployed and bankrupt, many Enron employees saw their whole life come undone when it came to light exactly what Lay, Skilling and their minions had in fact done. Likewise, the collapse of Enron had implications for the United States as a whole.5 Enron affected the United States in several important ways, in addition to the individual employees themselves. If anything positive can be said about the Enron scandal, it is that the scandal itself heightened awareness of the importance of integrity in Accounting and business in general, and led to the creation of new safeguards to make sure that something like this would not happen again, or at least not to the full extent of the Enron damage6. The stakes in clarifying these issues are self-evident. With the collapse of the former energy giant, more than 4,000 employees lost their jobs; thousands of investors also lost their life savings, as $70 billion in wealth vanished. Confidence in corporate America plunged, and the stock market has yet to recover from the aftershock.

Lawyers, Ethics, and Enron, Deborah L. Rhode & Paul D. Paton

6http://voices.yahoo.com/the-enron-scandal-crime-scandal-tragedy-controversy-136695.html

Lawyers Role In Enrons Fall These attorneys all played an important role in the process of drafting and certifying disclosure statements, and in advising whether the legal and accounting requirements governing SPEs [Special Purpose Entities] and SPVs [Special Purpose Vehicles] had been met. The Powers Report noted that, in some cases, transactions were designed specifically for the results they would produce on financial statements, not for legitimate economic objectives. Nor were the transactions adequately disclosed. Further, even though Enrons public filings revealed the existence of Enrons transactions with the partnerships, the disclosures were obtuse, did not communicate the essence of the transactions completely or clearly, and failed to convey the substance of what was going on between Enron and the partnerships. Other transactions were used to offset investment losses and to create the appearance that the investments had been hedged against risk of loss by a third party, even though Enron was the only investor with a significant financial stake in the third party. In effect, it was hedging against itself and thus still liable for the losses. As the Powers Report later concluded, these transactions appear to have been designed to circumvent accounting rules by recording hedging gains to offset losses . . . in the value of merchant investments on Enrons quarterly and annual income statements. The economic reality of these transactions was that Enron never escaped the risk of loss, because it had provided the bulk of the capital with which the SPEs would pay Enron. As the value of the merchant investments continued to fall in 2001, credit problems in SPE entities meant that they could no longer pay Enron on the hedges. The SPEs were terminated in September 2001, resulting in a surprise announcement that was the first public disclosure even hinting at the severity of the problems. US Governments Response The Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley), which cleared the House of Representatives by a vote of 423-3 and which cleared the Senate by a 99-0 vote a few hours later, included a provision that obligates lawyers to report corporate fraud, and new rules that would require the SEC to establish minimum standards of professional conduct for the lawyers who practice before the Commission. Sarbanes-Oxley also obligates lawyers to report evidence of a material violation of securities law or breach of fiduciary duty, first to a companys general counsel, then to its CEO, and ultimately to its board of directors. The statute also provides greater protection for whistleblowers and directs the SEC to adopt rules to interpret and implement this legislation. The bars resistance to these regulatory initiatives reflects a disturbing gap between professional interests and societal values. Disclosure Obligations Such disclosure obligations have figured prominently in recent legislative responses to corporate misconduct. Experts have long sought to have the SEC take a more active role in the regulation of lawyer conduct and in disclosure of fraudulent conduct. The recent legislative focus is, in turn, a product of the bars own failure to impose adequate requirements.

Just before the Enron scandal broke, the ABA voted twice against a recommendation by its Ethics 2000 Commission to amend the bars Model Rules of P rofessional Conduct governing disclosure obligations. The proposed reform would have required lawyers to reveal information when necessary to prevent or rectify substantial economic harm, as well as preserve life. Section 307 of Sarbanes-Oxley, and the rule the SEC originally proposed to implement it would have provided the ethical safeguards that the bar has not. Section 307 has two dimensions. First, it instructs the SEC to adopt a rule of practice establishing minimum standards of professional conduct for lawyers appearing or practicing before the Commission. Second, Section 307 specifically directs the SEC to include a rule requiring all such lawyers to report evidence of a material violation of fraud and other corporate misconduct to the companys senior management and, if necessary, to its board of directors. The Proposed Rule that the SEC designed to implement these requirements attracted a barrage of criticism from the ABA and corporate lawyers, and pitted the corporate bar against some fifty law professors who argued that it was long overdue. Under the initially proposed rule, if a lawyer believed that the company had not adequately responded to reports of misconduct, the lawyer must then 1) withdraw from representation; 2) notify the SEC of the withdrawal, indicating that it was based on professional considerations; and 3) disaffirm any filing with the SEC the attorney has prepared or assisted in preparing that the attorney believes is or may be materially false or misleading. Under the initially proposed rule, if a lawyer believed that the company had not adequately responded to reports of misconduct, the lawyer must then 1) withdraw from representation; 2) notify the SEC of the withdrawal, indicating that it was based on professional considerations; and 3) disaffirm any filing with the SEC the attorney has prepared or assisted in preparing that the attorney believes is or may be materially false or misleading. Many academic experts were skeptical. Geoffrey Hazard, former Director of the American Law Institute and Reporter for the Model Rules of Professional Conduct, saw the bars reaction as another instance of lawyers being allergic to regulation of any kind that could expose them to liability or disciplinary action. Moreover, as law professor Richard Painter pointed out in his comm ents to the Commission, it is no secret that the most pervasive argument against disclosure requirements is that it reduces lawyers risk of liability to defrauded parties. But, as Painter noted, professional responsibility rules should not be designed with defense of malpractice claims as their primary objective, but with a view toward minimizing lawyer complicity in fraud that gives rise to malpractice claims to begin with. The [Commissions] Proposed Rule furthers this objective. Under the Final Rule, evidence of a material violation means credible evidence, based upon which it would be unreasonable, under the circumstances, for a prudent and competent attorney not to conclude that it is reasonably likely that a material violation has occurred, is occurring, or is about to occur. This new double negative definition was, in the view of many experts, both confusing and toothless, particularly since the Commission added a provision absolving the lawyer of reporting responsibilities if another lawyer finds that the company has a colorable defense for the companys actions.

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While these models are not in all respects a direct fit for the legal profession, their direction is worth exploring. Adding a role for public representation in formulating and enforcing lawyers ethical responsibilities would provide a critical perspective on rules designed primarily by and for the profession. Liability: One is the absence of appropriate standards of third-party liability for lawyers who passively acquiesce in client fraud. In some states, including Texas, privity requirements now bar nonclients from suing attorneys for wilful blindness to client misconduct. Ethical Questions: What should a lawyers obligation be when he or she has reservations about the morality or legality of a companys conduct, even though that conduct might not constitute material violations of securities laws? The Philippine Experience The United States of America had experienced the Enron Scandal as a disturbing blow to its economic stability. This blow lead their Legislative Branch to even passed laws, [among it is the SarbanesOxley Act of 2002] compelling lawyers to follow stricter disclosure requirements. Tighter regulation was the immediate response of the government to ensure that what happened in ENRON will never happen again. Under Philippine jurisdiction, the lawyer has the following duties to the clients: Under Canon 17, A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him. Canon 15 of the Canons of Professional Ethics also demands a lawyer's fidelity to client: The lawyers owes "entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability," to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public popularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicanery. He must obey his own conscience and not that of his client. The lawyers fidelity is however, qualified. Under Canon 19, Rule 19.01 A lawyer shall employ only fair and honest means to attain the lawful objectives of his clients. This rule suggests that lawyer could guide and advise the client corporation within the metes and bounds of law.

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Could this rule also mean that the lawyer could disclose past and possibly future transactions of the company that would constitute corporate fraud? However, in the Philippines there are laws that prohibit lawyers from disclosing privileged communication made by the client to the former and the following are some of them: 1] Under the Canons of Professional Ethics, 32. The lawyer's duty in its last analysis No client corporate or individual, however, powerful nor any cause, civil or political, however important, is entitled to receive nor should any lawyer render any service or advice involving disloyalty to the laws whose ministers we are, or disrespect of the judicial office, which we are bound to uphold, or corruption of any person or persons exercising a public office or private trust, or deception or betrayal of the public. When rendering any such improper service or advice, the lawyer invites and merits stern and just condemnation. Correspondingly, he advances the honor of his profession and the best interests of his client when he renders service or gives advice tending to impress upon the client and his undertaking exact compliance with the strictest principles of moral law. He must also observe and advice his client to observe the statute law, though until a statute shall have been construed and interpreted by competent adjudication he is free and is entitled to advise as to its validity and as to what he conscientiously believes to be its just meaning and extent. But above all a lawyer will find his highest honor in a deserved reputation for fidelity to private trust and to public duty, as an honest man and as a patriotic and loyal citizen.7 2] Under Rule 130, Section 24. Disqualification by reason of privileged communication. The following persons cannot testify as to matters learned in confidence in the following cases: (b) 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 which has been acquired in such capacity; 3] Under Rule 15.02 A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client. 4] Further, Rule 138 of the Rules of Court states: Sec. 20. It is the duty of an attorney: (e) to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client's business except from him or with his knowledge and approval.
7

http://www.chanrobles.com/canonsofprofessionalethics.htm#.UXOgmCFicZ4

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5] Anti-Money Laundering Act REPUBLIC ACT NO. 10365, Sec. 1, (FEB 15 2013) "Notwithstanding the foregoing, the term covered persons shall exclude lawyers and accountants acting as independent legal professionals in relation to information concerning their clients or where disclosure of information would compromise client confidences or the attorney-client relationship: Provided, That these lawyers and accountants are authorized to practice in the Philippines and shall continue to be subject to the provisions of their respective codes of conduct and/or professional responsibility or any of its amendments." As of now, there is difficulty for lawyers to disclose corporate matters covered by the client-lawyer relationship. It makes it harder for the lawyers as individuals to decide to become whistleblowers of corporate fraud. As to the members of the bar, they are allergic to the heavy regulation that it might be imposed upon them heavy punishments in the future, in case of breach. The lawyers wanted to enjoy a certain leeway to do their job as client-protector as it is legally permissible by law. Recommended Questions: 1) Who determines whether a client is committing or is in intending to commit a material fraud? 2) Does stricter obligations preclude lawyers from participating in corporate fraud? 3) Is compliance of disclosure requirements contrary to the client-lawyer privilege? 4) Should we wait for a Philippine version of Enron to happen before we enforce stricter obligations? 5) Should we rely on the self-regulation of lawyers from avoiding corporate fraud? 6) Is the Filipino Lawyer ready for the stricter disclosure obligations? The ENRON Case should be used as a spring board for tackling not how to evade being caught in corporate fraud but how to prevent corporate fraud. This case had produced many works, manuscripts, case studies that would remind lawyers of the importance of professional ethics in their practice. Enron et al. should serve as a wakeup call to improve both teaching and research on professional ethics. More interdisciplinary approaches should be crucial priorities. The ethical challenges that confront those in professional roles cut across subject-matter boundaries. An effective response to corporate abuses requires collaboration among professionals from diverse backgrounds, such as law, management, economics, organizational behavior, and public policy. Professional schools could play a central role in identifying the structural causes of misconduct and the strategies most effective in addressing them.8
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An Ethic of Integrity: The Duty to Say No While the concept of excellence is relatively easy to grasp, even if it is difficult to measure, the value of integrity is more complicated than most realize. Particularly in the context of professionalism, it means much more than simply honesty. It is a wholeness or unity of person, an inner consistency between deed and principle. In law practice, it entails the lawyers ability to remain steadfast and consistent when the stress of delivering strong client service pushes against the lawyers own personal and professional values. The value of integrity is therefore closely related to the idea of professional independence the capability of a lawyer to exercise unclouded and uncompromised judgment on behalf of a client. In its starkest form, it is the question of the point at which the lawyer must reject a clients direction or request for service when the answer must be no. Further, to become an ethic of integrity, this resistance to inappropriate pressure must become a habit of mind, a virtue exercised over a lifetime. For lawyers, then, an ethic of integrity becomes synonymous with trust: Can a client, or a fellow lawyer with whom you are working, rely upon you to deliver advice that is unwelcome? As painful and economically dangerous as this may be in the short run, professionalism demands a recognition of the long-range benefit produced by forthright appreciation of the limits of the law. This does not mean, however, that lawyers have a responsibility to, or that clients should expect that their lawyer will, sacrifice the clients interests to some higher good, whether defined by the lawyer personally or by society. Instead, integrity requires a lawyer to recognize a middle ground between, on the one hand, simply being a slave to a client, mindlessly doing whatever one is told, and, on the other, assessing each client request for its moral or political worthiness. This principled position does not involve moral rationalizing, in which the lawyer engages in selfdeception, imagining that the clients interests are indeed the lawyers own. To the contrary, professional integrity simply demands that integrity be understood in a professional context: In private practice, the lawyer is being paid by a client, not by the public, which necessarily means that the client is entitled to have the lawyer act as if the clients interests were his or her own. Rather than abandoning ones personal values, professionalism requires a lawyer to engage in what could be termed a principled substitution of principles, in which the lawyer recognizes that one of his or her own principles is to vindicate the values of the client up to the limits of the law. This final restraint is an important one, of course, but it is much narrower than many in the public realize. An ethic of integrity means that a lawyer can be trusted to be consistently zealous in pursuing a clients interests up to a particular point: not when the lawyers actions would be inconsistent with values currently important to the general public, and not when those actions might be thoughtinconsistent with the vague idea of the common good. Instead, the constraints of integrity on the lawyer are the limits imposed by professionalism: the demands of excellence, respect, and service discussed here.

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Case in focus: SANTIAGO V. RAFANAN: Lawyer as witness for his client One of the four-fold duties of an Attorney is his duty to his CLIENT. The client reposed upon him the trust and confidence thus making him his agent in the protection and upholding his cause. The lawyer also sworn in the Lawyers Oath that he will conduct himself as a lawyer according to the best of his knowledge and discretion; with all good fidelity as well to the court as to his clients. The first aspect of being a Client-Protector that this paper will discuss is the Lawyer as a WITNESS to his client. The question is as a Client-Protector, can a lawyer TESTIFY in behalf of his client? Is it not proscribed by the Code of Professional Responsibility? Canon 12 A lawyer shall exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. Rule 12.08 A lawyer shall avoid testifying in behalf of his client, except; a.) On formal matters , such as mailing, authentication or custody of an instrument, and the like; or b.) On substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel. The Code of Professional Responsibility specifically under Canon 12 puts an emphasis on the lawyers duty to exert every effort in the efficient administration of justice. It would seem that as long as the effort exerted is within the bounds of law then it would qualify as something legal and ethical. However, in Rule 12.08 a clear prohibition is laid down as to the lawyer testifying in behalf of his client. The said rule made exceptions depending on formal matters and substantial matters. In other jurisdictions, like in Texas, their Disciplinary Rules of Professional Conduct provides for almost the same prohibition of a lawyer testifying for his client. However, it provided for other exceptions not found in our Code of Professional Responsibility. 3.08 - Lawyer as Witness9 (a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client, unless: (1) the testimony relates to an uncontested issue; (2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; (3) the testimony relates to the nature and value of legal services rendered in the case; (4) the lawyer is a party to the action and is appearing pro se; or (5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.

http://www.legalethicstexas.com/Ethics-Resources/Rules/Texas-Disciplinary-Rules-of-Professional-Conduct/III--ADVOCATE/3-08-Lawyer-as-Witness.aspx

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(b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer's client, unless the client consents after full disclosure. (c) Without the client's informed consent, a lawyer may not act as advocate in an adjudicatory proceeding in which another lawyer in the lawyer's firm is prohibited by paragraphs (a) or (b) from serving as advocate. If the lawyer to be called as a witness could not also serve as an advocate under this Rule, that lawyer shall not take an active role before the tribunal in the presentation of the matter. Now, there is this case of Santiago vs. Atty. Rafanan (2004) case which would exemplify and discuss this particular act of a lawyer being a witness to his client. Atty. Rafanan faced a disbarment case for alleged violation of Rule 12.08 of the Code of Professional Responsibility. Atty. Rafanan was the defense counsel for the accused who were charged with Attempted Murder. The accused invoked the defense of Alibi by saying that they were not in the place when the alleged incident happened. Then, controversy arose when Atty. Rafanan filed an Affidavit with the Fiscal during the preliminary investigation and offered the same as evidence in the case wherein he was actively representing his client. It was an affidavit corroborating the defense of alibi proffered by respondents clients. The affidavit averred that the accused were in his house when the alleged crime occurred. So the accused could not possibly commit the said felony for they were not in the place at the time of the incident. Atty. Rafanan said that "his testimony is very essential to the ends of justice." So Atty. Rafanan in this case acted both as Lawyer and at the same time a witness for his client. The relevant issue involved is if it is legal and ethical for a lawyer to testify in behalf of his client? The Supreme Court discussed the following matters. Under the law, a lawyer is not disqualified from being a witness, except only in certain cases pertaining to privileged communication arising from an attorney-client relationship. It is the duty of a lawyer to assert every remedy and defense that is authorized by law for the benefit of the client. It is the fundamental right of the accused to be afforded full opportunity to rebut the charges against them. He had the duty to present by all fair and honorable means every defense and mitigating circumstance that the law permitted, to the end that his clients would not be deprived of life, liberty or property, except by due process of law. Acting or appearing to act in the double capacity of lawyer and witness for the client will provoke unkind criticism and leave many people to suspect the truthfulness of the lawyer because they cannot believe the lawyer as disinterested. The testimony of the lawyer becomes doubted and is looked upon as partial and untruthful. Thus, although the law does not forbid lawyers from being witnesses and at the same time counsels for a cause, the preference is for them to refrain from testifying as witnesses, unless they absolutely have to; and should they do so, to withdraw from active management of the case. Nonetheless, we deem it important to stress and remind respondent to refrain from accepting employment in any matter in which he knows or has reason to believe that he may be an essential witness for the prospective client.

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The Supreme Court did not disbar Atty. Rafanan for executing the said affidavit and dismiss the case. The case would tell us that the said act testifying in behalf of the client is neither absolutely illegal nor unethical. Rule 12.08 as said earlier provides for a prohibition but also put some exceptions. The case of Atty. Rafanan may fall under the exceptions provided but the Supreme Court reminded him that such act may not constitute a violation of the Canons and Rules but this does not favor him since negative criticism may arise and his integrity might be affected. In the article written by John Stuart Wallace entitled The Attorney as a Witness for His Client10, it opined that generally all courts have stated that it is improper for an attorney to appear in a trial both as a witness and as an advocate of his client. John Stuart Wallace mentioned 3 instances which are the exceptions to the said prohibition. First, if the testimony relates to the uncontested matters in the case. Second, it is allowed on formal matters. Lastly, when denial of the testimony would defeat the ends of justice. If we will look at it, the 2nd and the 3rd exceptions are also the same with the exceptions laid down in our Code of Professional Responsibility. However, the 1st instance is not found in our jurisdiction but is present in the abovementioned Texas Rules of Professional Conduct. The author of the said article also discussed US cases wherein the lawyers where allowed to testify in behalf of the client based on the said exceptions given. The US cases mentioned in his articles said that the courts declared that it is not unethical for counsel to testify on behalf of his client without withdrawing from the case. The author said further that in most jurisdictions (referring to US States) the rule against an attorney being a witness for the client is a rule of ethics and not of law. He reasoned that under the law of evidence the attorney is a competent witness and his testimony is admissible regardless whether he is breaching his professional ethics. If legal profession is to continue enjoy the esteem and confidence of the public, it must police itself effectively. It submitted that, in order to achieve this end, both the trial and the appellate courts must be stricter in their enforcement of the professional ethics and, in particular , the rule on against an attorney testifying in behalf of his client. Therefore, a lawyer may protect his client as far as becoming a witness in behalf of his client but doing so entails extreme caution and professional responsibility. Going as far as giving testimony for the client may be legal and ethical but this depends so much on the circumstance and the manner of doing it. Like what the Supreme Court said in the case of Atty. Rafanan, a lawyer should avoid accepting cases when he has already foreseen or it could be reasonably foreseen the possibility that he has to testify for his client. The problematic area in this aspect is that cases and articles provided above would allow the lawyer to become his clients witness if the situation would fall among the exceptions given in Rule 12. 08. It would seem that it will not violate any law but not at all times it is considered ethical.

10

http://www.law.ua.edu/pubs/jlp/files/issues_files/vol03/vol03art13.pdf

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Respect for the System and Rule of Law: The Duty to Explain Why For integrity to have any practical meaning, then, rather than remaining some pious platitude, a lawyer must be able to explain a refusal to act as directed by a client, or as pressured by society more generally. This means that there must indeed be some good some value that is higher than the clients or societys immediate interests. This cannot be, however, as noted above, the amorphous concept of the common good, even though social welfare is always relevant in a general way to anyones actions. The problem that all lawyers confront in this context is the difficulty in defining satisfactorily and consistently the nature of the good that is alleged to be common, or the interest that is supposed to be shared by some unidentified public. Lawyers must constantly confront clashing and interweaving interests that must be resolved and untangled, and reasonable people can very much disagree concerning which path to doing so is appropriate. Instead, to be a legitimate part of legal professionalism, the public interest must be understood more narrowly and specifically One fundamental value does exist upon which everyone in civil society can agree one that is not only essential to the fabric of any community, but is also a value at the heart of lawyering itself: the critical importance of the rule of law. Citizens connect with each other in significant part by the way they make claims against each other: When disputes arise, rather than resort to self-help, we invoke our system of law to vindicate our rights. The practice of law, then, is central to this fundamental aspect of modern culture. Professionalism, in turn, requires lawyers to acknowledge their intimate connection to, and responsibility for, the rule of law. One part of that duty therefore imposes a special professional courage: resisting the demands of popular interests by remaining dedicated to the clients rights, regardless of immediate consequence. Another part of this duty is to practice law in such a way that we do not compromise the legal systems ability to structure social relationships appropriately and efficiently, and to resolve disputes as fairly and harmoniously as circumstances will allow. Lawyers must recognize that the social usefulness of the legal system, and in turn the esteem in which lawyers are held by the general public, depends ultimately on the respect the law receives from nonlawyers. Others will understand the importance of the rule of law to their communities only if lawyers themselves take seriously their responsibility to hold the system and rule of law in respect. And only with that public understanding will society accept that, to preserve our communities, lawyers must be able to act with independent professional judgment, unimpeded by inappropriate pressure from either clients or government. Case in Focus: Lawyers use of Dilatory Tactics Dilatory tactics are methods by which the rules of procedure are used by a party to a lawsuit in an abusive manner to delay the progress of the proceedings. For example, when numerous motions brought before a court for postponement are baseless, time is wasted because the court must stop the course of ongoing proceedings to examine whether there is any merit to the motions. The party in whose interests the motion is brought uses this tactic to gain time to enhance his or her position, or to postpone an action by a

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court as long as possible to minimize the impact of a decree rendered against him or her. A party found to engage in dilatory tactics may be held in Contempt of court.11 In the case of Edrial v. Quilat-Quilat12, Respondents filed a case for recovery of a parcel of land against petitioners. The case was already submitted for decision, however, Atty. Sedillo, the counsel of petitioners filed a Motion to postpone the hearing for several reasons. The decision was postponed three (3) times, all at the motion of Atty. Sedillo, but the latter did not appear before the court in any of the scheduled dates. The lower court ruled against their favor, and denied their motion to reopen trial, hence this petition. Counsel for petitioners alleges that the addresses of his clients on file in his law firm were incorrect; hence, the notices and other forms of communication he had sent to them were not received. He allegedly discovered this fact only after he had filed his withdrawal as their counsel. He also argues that the denial of the Motion to Reopen Trial was "plainly capricious and oppressive" because private respondents were equally guilty of delay and procrastination. Finally, he maintains that allowing petitioners to present their remaining evidence would be "in the interest of substantial due process and humane justice." Respondents disagree, reasoning that the trial court thrice reconsidered its Order to submit the case for decision; that is, petitioners were given several opportunities to present their evidence, but they squandered them. Petitioners, they further point out, were intentionally seeking to delay the resolution of the case because they were in physical possession of the land in dispute. The Supreme court held that the Code of Professional Responsibility requires that lawyers, after obtaining extensions of time to file pleadings, memoranda or briefs, shall not let the period lapse without submitting the same or offering an explanation for their failure to do so (Rule 12.03). Moreover, they should avoid any action that would unduly delay a case, impede the execution of a judgment or misuse court processes (Rule 12.04). For the benefit of the bench and bar, worth repeating is the CA's reminder to petitioners' counsel of his duty to his client and to the court: "Being an officer of the court a lawyer is part of the machinery in the administration of justice. Like the court itself, he is an instrument to advance its ends-the speedy, efficient, impartial, correct and inexpensive adjudication of cases and the prompt satisfaction of final judgments. A lawyer should not only help attain these objectives but should likewise avoid any unethical or improper practices that impede, obstruct or prevent their realization, charged as he is with the primary task of assisting in the speedy and efficient administration of justice. In the case of Olivares v. Villalon13, the original case involved is a complaint for an alleged violation of the lease contract executed by the client of Atty. Villalon, Al-Rasheed, and the complainant Olivares.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. [G.R. No. 133625. September 6, 2000] 13 A.C. No. 6323 April 13, 2007
11 12

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Respondent, as counsel, filed an action for damages and prohibition with prayer for preliminary mandatory injuction before the RTC of Manila, but the case was dismissed on the ground of improper venue. Subsequently, the counsel assisting his client initiated an action for breach of contract with damages before the RTC of Paranaque, but the same was dismisssed for failure to prosecute. They refiled the case before the same court, and was dismissed on the ground of res judicata. Olivares, complainant herein, contended that the Atty. Villalon must be dismissed due to violations of Rule 12.02, Canon 12 of the Code of Professional Responsibility and the rue on forum shopping. Respondent, on the other hand, asserts that he was only performing his legal obligation as a lawyer to protect and prosecute the interests of his client. He denied that he was forum shopping as his client, in her certificate of non-forum shopping, disclosed the two previous cases involving the same cause of action which had been filed and dismissed. Respondent further claims he could not refuse his clients request to file a new case because Al-Rasheed was the "oppressed party" in the transaction. The Supreme Court held that all lawyers must bear in mind that their oaths are neither mere words nor an empty formality. When they take their oath as lawyers, they dedicate their lives to the pursuit of justice. They accept the sacred trust to uphold the laws of the land. As the first Canon of the Code of Professional Responsibility states, "[a] lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal processes." Moreover, according to the lawyers oath they took, lawyers should "not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same." With all this in mind, respondent should have refrained from filing the second complaint against Olivares. He ought to have known that the previous dismissal was with prejudice since it had the effect of an adjudication on the merits. There was no excuse not to know this elementary principle of procedural law. The facts of this case reveal that Atty. Villalon purposely filed the second complaint. Respondent appealed the 1999 case to the Court of Appeals and subsequently to this Court. Both actions were dismissed for lack of merit, not on mere technicality. The certificate of non-forum shopping attached to the 2004 complaint disclosed that Al-Rasheed previously sued Olivares for violating their lease contract. As if such disclosure was a sufficient justification, Atty. Villalon unapologetically reproduced his 1999 arguments and assertions in the 2004 complaint. Respondent obviously knew the law and tried to go around it. This Court therefore concludes that respondent willfully violated Rule 12.02, Canon 12 which provides that: A lawyer shall not file multiple actions arising from the same cause. Furthermore, he violated Rule 10.03, Canon 10 of the Code of Professional Responsibility: A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice. A lawyers fidelity to his client must not be pursued at the expense of truth and justice. Lawyers have the duty to assist in the speedy and efficient administration of justice. Filing multiple actions

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constitutes an abuse of the Courts processes. It constitutes improper conduct that tends to impede, obstruct and degrade justice. Those who file 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 and honor. In the case of Sumcad v. Cusi14, the Court imposes a three-months suspension from the practice of law upon counsel of respondents for improper conduct and abuse of the Court's good faith by his acts in the case at bar manifesting gross disrespect for the Court's processes and a willful disregard of his solemn duty to conduct himself with all good fidelity to the Court and tending to embarrass gravely the administration of justice. Atty. Delante, the counsel for respondents filed several motions for extension which the Supreme Court outlined as follows: In his previous motions for extension, he never mentioned his belated allegation now that another lawyer had been retained to file the required comment, and no other lawyer, much less Atty. Fernandez, ever entered an appearance herein on behalf of respondents; In his second motion for extension, supra, Atty. Delante's law office cited as reason the fact that he had gotten sick on December 6, 1972 and had just recovered and needed the additional 10-day extension "in order to enable him to finish the comments for the respondents;"; In his third motion for a last 15-day extension, Delante assured the Court "that (he) has already prepared thefinal draft of the desired comments" and cited "pressure of work in his office" and the Christmas Season for not having "finalized and typed out (the comments) in a clean copy" which comments never came to be submitted to this Court; his present explanation is not even borne out by Atty. Fernandez' medical certificate which shows that he was confined in the hospital for sinusitis only from December 23-26, 1972 and therefore had sufficient time and opportunity to submit the comments by the extended deadline on January 12, 1973. Atty. Fernandez' own affidavit as submitted by Atty. Delante belies the latter's claim that the records of the case had been given to the former, for Atty. Fernandez swore therein that when Gregorio Caeda of respondent corporation saw him at the hospital (sometime between December 23-26, 1972) he advised Caeda of his inability to prepare the "answer" and Caeda got back the records of the case from him; He submits no explanation whatsoever, why if his "final draft of the desired comments" was "already prepared" since year-end of 1972 and only had to be "finalized and typed out" he utterly failed to submit the same notwithstanding the lapse of over six months and worse, in his "explanation" of May 7, 1973 asked yet for "an opportunity to prepare the anser [which] he will try his best to do it within the period granted by the Honorable Tribunal" when he had utterly ignored and disregarded the numerous extensions granted him which lapsed on January 12, 1973; and He likewise submits no explanation for his gross neglect in not seeing to it, assuming that Atty. Fernandez was to prepare the required comment, that the required comment was filed within the last extension (that expired on January 12, 1973) secured by him from the Court on his assurance that the final draft was ready and did nothing for three months until after he received the Court's resolution of April 12, 1973 requiring his explanation. The Court has ever stressed that a lawyer must do his best to honor his oath, as there would be a great detriment to, if not a failure of the administration of justice if courts could not rely on the submissions and representations made by lawyers in the conduct of a case. As stated by the Court in one case, "Time and time again, lawyers have been admonished to remember that they are officers of the court, and that
14

G.R. No. L-35766 July 12, 1973

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while they owe their clients the duty of complete fidelity and the utmost diligence, they are likewise held to strict accountability insofar as candor and honesty towards the court is concerned." Hence, the Court has in several instances suspended lawyers from the practice of law for failure to file appellants' briefs in criminal cases despite repeated extensions of time obtained by them, (except to file the missing briefs), with the reminder that "the trust imposed on counsel in accordance not only with the canons of legal ethics but with the soundest traditions of the profession would require fidelity on their part." In the more recent case of Que v. Revilla15, this is a complaint for disbarment filed by Conrado Que against Atty. Revilla for committing violations of the provisions of the Code of Professional Responsibility in filing petitions that unlawfully abused court processes and procedures. In this case, the Supreme Court took into consideration the commission of respondent of various acts of professional misconduct and thereby failed to live up to the exacting ethical standards imposed on members of the Bar. We cannot agree, however, that only a penalty of one-year suspension from the practice of law should be imposed. Neither should we limit ourselves to the originally recommended penalty of suspension for two (2) years. Given the respondents multiple violations, his past record as previously discussed, and the nature of these violations which shows the readiness to disregard court rules and to gloss over concerns for the orderly administration of justice, we believe and so hold that the appropriate action of this Court is to disbar the respondent to keep him away from the law profession and from any significant role in the administration of justice which he has disgraced. He is a continuing risk, too, to the public that the legal profession serves. Not even his ardor and overzealousness in defending the interests of his client can save him. Such traits at the expense of everything else, particularly the integrity of the profession and the orderly administration of justice, this Court cannot accept nor tolerate. Additionally, disbarment is merited because this is not the respondents first ethical infraction of the same nature. We penalized him in Plus Builders, Inc. and Edgardo Garcia versus Atty. Anastacio E. Revilla for his willful and intentional falsehood before the court; for misuse of court procedures and processes to delay the execution of a judgment; and for collaborating with non-lawyers in the illegal practice of law. We showed leniency then by reducing his penalty to suspension for six (6) months. We cannot similarly treat the respondent this time; it is clear that he did not learn any lesson from his past experience and since then has exhibited traits of incorrigibility. It is time to put a finis to the respondents professional legal career for the sake of the public, the profession and the interest of justice. Supreme Courts Opinion as to Defenses of Equity and Client Protection For all its conceded merits, equity is available only in the absence of law and not as its replacement. Equity is described as justice outside legality, which simply means that it cannot supplant although it may, as often happens, supplement the law. We said in an earlier case, and we repeat it now, that all abstract arguments based only on equity should yield to positive rules, which pre-empt and prevail over such persuasions. Emotional appeals for justice, while they may wring the heart of the Court, cannot justify disregard of the mandate of the law as long as it remains in force. The applicable maxim, which goes

15

A.C. No. 7054 December 4, 2009

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back to the ancient days of the Roman jurists and is now still reverently observed is "aequetas nunquam contravenit legis."16 It bears stressing that a lawyers fidelity to his client must not be pursued at the expense of ferreting the truth and administering justice to all. His responsibility to protect and advance the interests of his client does not warrant a course of action propelled by ill motives and malicious intentions. He had, after all, taken the oath upon admission to the Bar that he "will not wittingly or willingly promote or sue any groundless, false or unlawful suit nor give aid nor consent to the same;" and that he "will conduct himself as a lawyer according to the best of his knowledge and discretion with all good fidelity as well to the courts as to his clients." Far from being an empty exhortation, this oath embodies a sacred trust that every lawyer must uphold and keep inviolable at all times.17 What Tactics Can a Lawyer Resort to, to Validly and Legally Protect His Client? In the article written by Floridas Assistant Ethics Counsel, Kathy Bible, Dilatory Tactics and Lack of Diligence in Representation18, she discussed that lawyers often see delaying tactics as fair game and to be expected in litigation and other matters. Thus, when do dilatory tactics cross the line from strategy into unethical behavior? When can a lawyer be disciplined for delay as part of trial strategy or simply as a matter of neglect? The group agrees with Atty. Bible, in saying that in order to avoid such problems, attorneys must be careful to calendar all their matters to make sure that action is taken on all cases in an expeditious manner. This advice applies to both litigation and transactional matters. A delay in preparing a lease or in closing on sale of property can cause serious consequences for clients and must not be allowed to happen. Complaints should be filed as soon as the attorney has the requisite evidence to establish the claims in the complaint. Investigations should be begun immediately upon signing up a new client with a potential claim. Attorneys should keep an action list of all pending matters that is reviewed at least once a month. This list should reflect the date of the last action taken in a matter. If there is any matter that has had no action for a month or more, that file should be placed at the top of the attorneys action list for telephone calls, complaint preparation, commencement of settlement negotiations (with client consent) or whatever other action may be appropriate. Defense counsel may need to move to dismiss a plaintiffs languishing case or move for summary judgment in a clients favor. In short , attorneys should do whatever they can to move their clients cases along at all times. Failing to do so can result in costly mistakes for both lawyer and client.

No. 89571 February 6, 1991; FRANCISCO LIM TUPAS and vs. HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. 17 G.R. No. 145915 April 24, 2003; PEOPLE vs. VILMA ALMENDRAS y ZAPATA and ARSENIO ALMENDRAS y LOCSIN, appellants. 18 http://www.floridabar.org/divcom/jn/jnnews01.nsf/Articles/7398DB8C24204B9B8525788F0054BFF3
16

G.R.

IGNACIO OF THE

LIM

TUPAS, petitioners, PHILIPPINES, appellee,

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Respect for Other Lawyers and Their Work A fourth value within professionalism follows directly from the former discussion: If we truly respect the rule of law, and appreciate its importance to our civic culture, then we must also respect those who labor within it. This, then, is the proper foundation for the requirement of civility amo ng lawyers not simply to enable people to interact without unnecessary social and personal pain, but to permit the legal system to function without unnecessary interference and cost. Although the limits lawyers impose on themselves in the name of civility will always be vague and somewhat controversial, this restraint will nevertheless always be connected with professionalism: Our respect for each other as lawyers will inevitably continue to have an impact on the functioning of the legal system. The respect required by professionalism extends beyond just contacts among lawyers, however. It includes as well a special responsibility involving a lawyers conversations with his or her clients. When discussing other lawyers who are representing a clients opponents, or judges who may have ruled unfavorably in a matter, professionalism demands that these adversaries not be held in disrepute or denigrated behind their backs in a misguided effort by the lawyer to curry favor with the client, or to explain away an adverse result. The obvious exception to this restraint, however, is the circumstance in which the actions by the opposing lawyer were themselves contrary to professionalism. This more limited range to legitimate criticism of other practitioners recognizes that the publics respect for the rule of law will be closely related to the respect it gives to those who practice it. Case in Focus: the Use of Blackmail Blackmail is defined as coercion by threats especially of public exposure or criminal prosecution. 19 In ordinary practice, blackmail involves using baseless coercion to obtain an advantage or otherwise bring harm to another unless some requirement is done. It is a form of coercion which may extend from using threats to deter somebody in doing a particular task to writing or releasing libelous statements for the purpose of soliciting money or collecting debts. In the Philippines, blackmailing is considered a felony. Under the Revised Penal Code20, blackmailing is tantamount to light threats. An example would be A threatens B with accusation or exposure if B does not give P1,000 to be deposited in an indicated place. 21

Merriam-Webster Dictionary Art. 283. Light threats. Any threat to commit a wrong not constituting a crime, made in the manner expressed in subdivision 1 of the next preceding article, shall be punished by arresto mayor. 21 Revised Penal Code Book Two by Luis B. Reyes
19 20

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American jurisprudence which is cited in several Philippine Supreme Court cases provided for a definition of blackmail in this wise: Blackmail is "the extortion of money from a person by threats of accusation or exposure or opposition in the public prints obtaining of value from a person as a condition of refraining from making an accusation against him, or disclosing some secret calculated to operate to his prejudice." 22 Blackmail is indeed prevalent in the society nowadays. People from all walks of life would sometimes resort to unlawful ways such as blackmailing to gain an advantage or to coerce someone into doing something favorable to him. Lawyers are likewise not exempted from such acts. There are those who, oblivious to the Code of Professional Responsibility they have avowed to fulfill, would sometimes undertake unlawful means either to serve their own motives or as a result of their overzealousness to protect their clients claim. Duty of the Lawyer under the Code of Professional Responsibility Canon 1923 of the Code of Professional Responsibility requires lawyers to represent their clients with zeal. More particularly, Rule 19.0124, a lawyer is proscribed from using threats of filing unfounded or baseless criminal case or cases against the adversaries of his client designed for the purpose of acquiring some advantage. Philippine Cases where counsel resorted to Blackmailing There are several cases under Philippine jurisprudence wherein a lawyer as a client protector used the means of blackmailing to serve the claims of his client against opposing the opposing party. In the case of Fernando Martin O. Pena vs Atty. Lolito G. Aparicio 25, the Supreme Court speaking through Justice Tinga held that Respondent lawyer did exactly what Canon 19 and its Rule proscribe. Through his letter, he threatened complainant that should the latter fail to pay the amounts they propose as settlement, he would file and claim bigger amounts including moral damages, as well as multiple charges such as tax evasion, falsification of documents, and cancellation of business license to operate due to violations of laws. The threats are not only unethical for violating Canon 19, but they also amount to blackmail. In this case, the complainant is Fernando Martin O. Pena, President of MOF Company and the defendant on the other hand is Atty. Lolito Aparicio. Atty Aparicio appeared as counsel for a certain Grace Hufana, an employee of MOF company. Hufana, represented by her counsel sought for payment of separation pay but the same was rejected by Pena for being baseless. Thereafter, Atty. Aparicio wrote demand letter the contents of which threatened complainant with the filing of criminal cases for tax evasion and falsification of documents. The complainant Pena filed an

(Am. Jur. 2d, Vol. 5, citing Hess v. Sparks, 24 P. 979, 980, 44 Kan. 465, 21 Am.St.Rep. 300.) Canon 19 - A lawyer shall represent his client with zeal within the bounds of the law. 24 Rule 19.01 - A lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding. 25 A.C. No. 7298 June 25, 2007 [Formerly CBD Case No. 05-1565]
22 23

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administrative complaint alleging that the Atty. Aparicio violated Canon 19.01 of the Code of Professional Responsibility for using threats to compel him to pay for backwages and separation pay. In another case, the case of Alex Ong vs Elpidio Unto26, a disbarment case was also filed against a lawyer who threatened to file criminal charges unless the opposing party comply with the demands of the party the lawyer is representing. In both cases, neither lawyer was disbarred for writing demand letters which is tantamount to blackmail letter. However, they were meted with different sanctions. In the first case, Atty. Aparicio was only reprimanded whereas in the second case, Atty. Unto was given a penalty of suspension from the practice of law for a period of 5 months. What is even peculiar is that in one case, the Supreme Court held that An accusation for blackmail and extortion is a very serious one which, if properly substantiated, would entail not only respondents disbarment from the practice of law, but also a possible criminal prosecution27 The Problem Area With these series of similar cases with different corresponding sanctions to erring lawyers, we are now led to the gray area of legal ethics as we are faced with the question When can an overly zealous lawyer be held responsible for writing a demand letter which the court itself held to be tantamount to blackmail? The Resolution Indeed, writing demand letter is one basic duty of a lawyer as an agent of his client. However there are standards that must be strictly complied with by lawyers to remove the impression that a demand letter written is not equivalent to a blackmail letter. The tenor and the language that must be used by the lawyer must be characterized by professionalism that is in conformity with good customs and public policy. When a lawyer seeks that an appropriate action must be done by an opposing party, the demand must be couched in a formal letter whereby failure to comply would result to suitable legal action. Hence, when a lawyer is writing a letter for the collection of outstanding balance from the opposing party, he may state that failure to pay within a reasonable period would constrain him to file a collection case in court. This type of demand letter is still within the ambit of legality. However, if such lawyer will threaten the other party that he will file a criminal case for bigamy against such party if the latter fails to pay his obligations, then such letter is now tantamount to blackmail.

26 27

[Adm. Case No. 2417. February 6, 2002] Boyboy vs Yabut [A.C. No. 5225. April 29, 2003]

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Avoidance of Overzealousness
In the case of People v. Ignacio, It remains to de-bunk the alternative defense that, assuming there was sexual intercourse between Ignacio and Gloriann, the same was consensual. This is ridiculous. This kind of argument insults the intelligence of the Court and sorely tests its patience. This is not even a case of consenting adults for Gloriann was barely over twelve years old at the time of the rapes; and at any rate there is no evidence whatsoever of any romantic relationship between her and the appellant. Attys. Al A. Castro and Virgilio M. Villanueva are warned against a repetition of this fatuity. While the lawyer is expected to exert his best efforts on behalf of his client, he must nevertheless do so within the bounds of reason and common sense. Excess of zeal cannot justify paucity of logic and can only prejudice rather than advance a clients cause. In the case of Lacsamana v. Judge dela Pena, The complainant Jose Lacsamana charges the respondent Municipal Judge Meljohn de la Pea of Maripipi, Leyte with (a) a violation of the lawyer's oath to "do no falsehood, nor consent to the doing of any in court," and (b) failure to comply with the lawyer's duty, imposed by section 20(d) of Rule 138 of the Rules of Court, "to employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor." Lacsamana alleges in his complaint that de la Pea, as counsel for the defendants therein, introduced in court, in the course of the presentation of evidence for the defense, a document which deed appears to have been notarized and entered in his notarial register but that a verification of the notarial register of the said notary public pertained instead to an affidavit of one Ireneo Machete and not to the compraventa document. Upon the foregoing allegations, Lacsamana brands the document as spurious.. The Supreme Court held that no prima facie case has been established, hence further investigation is not warranted. That the "Escritura de Compraventa Absoluta" was entered in the notarial register ahead by one notch or number than the affidavit does not necessarily make the compraventa document simulated or spurious; and even assuming that it is, the complainant has not alleged that the respondent knew of such infirmity, and that despite such knowledge he nevertheless presented the document as evidence in court. Thus, the administrative complaint against the respondent Judge Meljohn de la Pea is hereby dismissed. In the case of Equitable Banking v. Liwanag, Neither did his special or affirmative defenses tender any real issue. Aside from the bare affirmation that plaintiff has "no cause of action" and that "plaintiff's claim for interest and attorney's fees are exorbitant", there is nothing in appellant's answer to give any semblance of seriousness to or merit in these defenses.

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In fact, his own brief has not even tried to prove the contrary. Appellant has not even attempted to show that it is so. It is, accordingly, obvious that this appeal has been interposed for the sole purpose of delay. In the case of Galofa v. Nee Bon Sing, It is to be noted that, to the plaintiff's allegation of his inability to take actual possession of the parcel of land due to "an unwarranted adverse claim of rights of ownership and possession by the defendant . . .", followed by an allegation of how such claim was exercised, the defendant's denial is as to "the materials averments contained in paragraph 4 of the Complaint, . . ." conjoined with his disclaimer or dominical or possessory rights in the manner alleged in the complaint. The defendant's denial is, therefore, a negative pregnant, which is equivalent to an admission. A denial in the form of a negative pregnant is an ambiguous pleading, since it cannot be ascertained whether it is the fact or only the qualification that is intended to be denied. Where a fact is alleged with some qualifying or modifying language, and the denial is conjunctive, a "negative pregnant" exists, and only the qualification or modification is denied, while the fact itself is admitted. The practice of law is, after all, a service industry: Private practice involves being paid a fee by a willing client who is convinced that it is receiving something of value in the exchange. The days of the imperious lawyer who can command respect and payment simply from the status of being the lawyer are gone. They have been replaced with relationships that are closer to ordinary consumerism, where market forces (long disdained by much of the legal profession as beneath their dignity) now rule. Professionalism requires lawyers to recognize, accept, and indeed respect that situation. Those lawyers who reflect the professions deepest values will readily be able to do so. Accountability is therefore the cornerstone of the professional independence that lawyers enjoy, for the public generally accepts the proposition that lawyers need to be unfettered to be able to provide their full value to society. But people will continue to believe this only if lawyers respect their reciprocal duty to take seriously the need to make the value of their work clear, and their fees fair. A final, but crucial, step in the effort to define legal professionalism is to examine the combination of the separate values to determine, the nature of law practice at the center of the earlier diagram of concentric circles. The blending that occurs there is itself important, for the interaction of the various values produces a distinctive set of three fundamental virtues, listed earlier, that uniquely define the practice of law at its very best.

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The Good Lawyer as Client Protector: Ethics and Values in Legal Work The demand for excellence and accountability creates a sense that a clients interests should be vindicated in the most effective and efficient manner possible. This does not mean that the best lawyers always win from the clients perspective, whether in litigation or in the negotiation of a deal. Instead, these lawyers, and their firms, should be able to link their efforts to results they can fully justify as a professional matter. Excellent and accountable lawyering in this sense therefore means producing the highest practical value or benefit for the client in the circumstances. The client, in other words, should be in the best position that could reasonably have been achieved, and the lawyer should be able to demonstrate that positive result to the client. This concept of practical value can be difficult to articulate, but the professional skills on which it will be based can be identified. First, one must have the basic analytic skills the rigorous thinking that should be produced by a law school education. Any good lawyer should, early on, be able to understand the importance of investigating facts and law thoroughly on behalf of a client; to be able to reason in a logical, syllogistic order through a series of analytic steps to an appropriate conclusion; and to be precise and careful in his or her thinking, rather than loose and haphazard. But professionalism will push lawyers further: They will hone their reasoning, through experience and reflection, to truly master the area of law with which they deal. This lawyer will be able to perceive within the haze of facts and law the correct elements on which to focus to best serve the clients interests. In turn, this command of the material will enable the lawyer more readily to make his or her thinking evident and comprehensible to others, not just to himself or herself. With this strong grasp of the situation, the lawyer moves from mere facility with the material to a deeper confidence in the message he or she will deliver, giving the client an equal confidence in the value of the lawyers advice. For the best lawyers, professionalism produces additional steps. Adroit and resourceful lawyering also enables one to act pragmatically in the clients best interests. Concerning the lawyers reasoning, this means that research and results must be achieved with minimum expenditure by the client that is, professional products must be generated efficiently. Those results must also be, from the clients perspective, practical, reasonable, and realistic. And the best lawyers also understand that, because confidence can sometimes be perceived as arrogance, they must temper their approach to, and interaction with, clients and others with a professional character and attitude that is engaging rather than smug or haughty. Second, the professional values of integrity and respect for the rule of law and other lawyers are sometimes understood to mean that a lawyers efforts in advocating a clients interests must be measured, restrained, and aloof that the relationship between lawyer and client must be distant. While there is some truth to this perspective, it should not become exaggerated. Excellence is still a foremost value of professionalism, and it demands that clients be given zealous representation. The proper balance between these considerations can be labeled principled enthusiasm.

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Clients pay their lawyers not just for results, but for attitude as well. Clients are therefore entitled to a special commitment from their lawyer, meaning that the best lawyers will manifest and cultivate traits that demonstrate their lack of neutrality concerning the clients interests: bias, interest, partiality, [and] favoritism.6 This commitment should be combined with a passion and energy that produces, consistent with the virtue discussed above, the highest practical benefit that a client can expect. This enthusiastic representation must, however, be professionally tempered. While a lawyers advocacy cannot be unlimited or unrestrained, the source of constraint as a matter of professionalism must be understood as being rooted in considerations particularly relevant to the practice of law, rather than morality more generally. Principled enthusiasm must take into account the other critical professional values of respect for the rule of law and respect for the work of other lawyers. Thus, professionalism demands that the pursuit of client service cannot go so far as to denigrate or bring into disrepute a communitys body of law or its legal system: Advocacy should not cause the public to lose, or even doubt, its sense that society is governed by the fairness and justice inherent in the rule of law, as distinct from the whims of the few and the powerful. Zealous representation must therefore entail appropriately legal representation. Lawyers have to take the initiative to stop the spread of aggressive lawyer stereotypes. Its not just about obnoxious advertising or being rude to opposing counsel; its about not encouraging clients to think that the more pugnacious lawyer is the better lawyer. Its a matter of being realistic and responsibl e when clients ask, what are you going to do? or what would you have done? In most cases, if you tell a client, I will get in touch with the media or I would have put the other lawyer in his place, you are part of the problem, not part of the profession. When all is said and done, a trial advocate is judged not only by the results obtained, but by other important factors such as the client's satisfaction, the credibility (ethos) achieved with jurors, and the professional reputation borne among colleagues at the bar and presiding trial court judges. Your strategy , tactics, techniques, and overall conduct as a litigator are all governed by ethical rules that define the parameters of what you can legitimately do in furthering your client's interests in the criminal justice process.

A criminal lawyer is like a brain surgeon. The surgeon is concerned with techniques not the goodness or badness of the man on the table. The patient is incidental. The stuff about a lawyer wanting to save an innocent man from the electric chair is bunk. He's worrying about technique. The same as the surgeon is concerned with where to put the knife without severing an artery. The satisfaction comes from doing the job well not from saving the man from the electric chair.

Percy Foreman IMO, the best trial advocate of the 20th century

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