LEGAL ETHICS PRE-WEEK 2

PRE-WEEK
LEGAL ETHICS
CODE OF PROFESSIONAL
RESPONSIBILITY
Q: What does it mean not to engage in
unlawful, dishonest or immoral conduct?
A: An unlawful conduct is an act or omission
which is against the law. Dishonesty involves
lying or cheating. There is immoral or deceitful
conduct when the act is willful, flagrant or
shameless and which shows a moral
indifference to the opinion of the good and
respectable members of the community.
Moral turpitude includes everything which is
done contrary to justice, honesty, modesty, or
good morals. (Barrios v. Martinez)
Q: How shall a lawyer avoid, end or settle a
controversy?
A: The function of a lawyer is not only to conduct
litigation but to avoid it where possible, by
advising settlement or withholding suit. He must
act as mediator for compromise rather than an
instigator and conflict. What sometimes
beclouds a lawyers judgment as to what is best
for his client is his eye on the attorneys fees
which are often considerably less when the
cause is amicably settled. The problem of
conflict of interests must be resolved against
self-interest. (Agpalo)
Q: Why are lawyers prohibited from
soliciting legal business?
A: The legal practice is not a business. Unlike a
businessman, the lawyer has:
1) Relation to the administration of justice
involving sincerity, integrity and reliability as
an officer of the court;
2) duty of public service;
3) relation to clients with the highest degree of
fiduciary;
4) relation to colleagues at the bar
characterized by candor, fairness and
unwillingness to resort to business methods
of advertising and encroachment on their
practice, or dealing directly with their clients.
(Agpalo)
In relation to Rule 3.01, solicitation of any kind is
prohibited; but some forms of advertisement
may be allowed.
Q: What are the rules behind the
prohibition against misleading or false
names?
A:
GENERAL RULE 1: All partners in firm name
must be alive.
EXCEPTION: When removal of the
deceased partners name disturbs the client
goodwill built through the years.
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. (Agpalo)
Death of a partner does not extinguish
the client-lawyer relationship with the law
firm. (B.R. Sebastian Enterprises Inc. vs.
Court of Appeals, 206 SCRA 28)
GENERAL RULE 2: Filipino lawyers cannot
practice law under the name of a foreign law
firm.
Firms may not use misleading names showing
association with other firms to purport legal
services of highest quality and ties with
multinational business enterprise especially
when such firm attached as an associate
cannot legally practice law in the Philippines.
(Dacanay v. Baker and McKenzie, 136 SCRA
349 (1985))
Q: What types of business advertisements
are allowed in the legal profession?
A: THE MOST WORTHY AND EFFECTIVE
ADVERTISEMENT possible is the establishment
of a well-merited reputation for professional
capacity and fidelity to trust. This cannot be
forced, but must be the outcome of character
and conduct.
Allowable advertisement (The Exceptions to
Rule 3.01):
o an ordinary professional card
o publication in reputable law list with brief
biographical and other informative data
which may include:
1. name
2. associates
3. address
LEGAL ETHICS PRE-WEEK 3
4. phone numbers
5. branches of law practiced
6. birthday
7. date admitted to the bar
8. schools and dates attended
9. degrees and distinctions
10. public or quasi-public offices
11. posts of honor
12. legal authorships
13. teaching positions
14. associations
15. legal fraternities and societies
16. references and regularly represented
clients must be published for that
purpose
o publication of simple announcement of
opening of law firm, change of firm
o listing in telephone directory but not under
designation of special branch of law
o if acting as an associate (specializing in a
branch of law), may publish a brief and
dignified announcement to lawyers (law list,
law journal)
o if in media, those acts incidental to his
practice and not of his own initiative
o write articles for publication giving
information upon the law (and not individual
rights or advising through column/ TV.
broadcast, lest such be considered indirect
advertising)
o activity of an association for the purpose of
legal representation
Q: What are the prohibited types of
business advertisements in the legal
profession?
A: Prohibited advertisement (Sec. 27, Canon of
Professional Ethics):
o Through touters of any kind whether allied
real estate firms or trust companies
advertising to secure the drawing of deeds
or wills
o Offering retainers in exchange for
executorships or trusteeships to be
influenced by the lawyer
o Furnishing or inspiring newspaper
comments concerning the manner of their
conduct, the magnitude of the interests
involved, the importance of lawyers
position, and all other like self-laudation
Q: What is the purpose of the Mandatory
Continuing Legal Education (MCLE)?
A: To ensure that lawyers throughout their
career keep abreast with law and jurisprudence,
maintain the ethics of the profession and
enhance the standards of the practice of law
(Bar Matter 850, (2000))
Q: How often should the MCLE be taken?
A: Every three years and at least 36 hours of
legal education activities.
Q: What are the obligations of a lawyer in
taking the MCLE?
A: Obligations
1) To self for continued improvement of
knowledge
2) To his profession for maintenance of high
standards of legal education
3) To the public for social consciousness
Q: Who are exempted from the MCLE?
A: Exemptions
1. President, vice-president, cabinet members
2. Members of Congress
3. Chief Justice and incumbent and retired
members of the judiciary
4. Chief state counsel, prosecutor and
assistant secretaries of the Department of
Justice
5. Solicitor General and assistants
6. Government Corporate Counsel, his
deputies and assistants
7. Chairman and members of Constitutional
Commissions
8. Ombudsman and his deputies
9. Heads of government agencies exercising
quasi-judicial functions
10. Incumbent deans, bar reviewers and
professors of law who have 10 year teaching
experience
11. Officers and lecturers of the Philippine
Judicial Academy
12. Governors and mayor
13. Those not in law practice (special
exemption)
14. Those who have retired from the law
practice (special exemption)
Q: What is the duty of a public prosecutor?
A: It is upon the discretion of the prosecutor to
decide what charge to file upon proper
appreciation of facts and evidences. Fiscals are
not precluded from exercising their sound
discretion in investigation. His primary duty is
not to convict but to see that justice is
served. (People v. Pineda, 20 SCRA 748
(1967))
LEGAL ETHICS PRE-WEEK 4
Q: What are the prohibitions on
employment after leaving government
service?
A: No government employee, official, or officer
may accept engagement or employment in
connection with matter he had intervened in.
Intervention includes any act of a person which
has the power to influence the subject
proceedings.
GENERAL RULE: Practice of profession allowed
immediately after leaving public service
EXCEPTIONS: If lawyer had connection with
any matter during his term, subject to
a) One year prohibition if he had not intervened
b) Permanent prohibition if he had intervened
Q: What is a lawyers duty in his
application to the bar?
A: A lawyer shall be answerable for knowingly
making a false statement or suppressing a
material fact in connection with his application
for admission to the bar.
Aside from this, a lawyer should also volunteer
information or cooperate in any investigation
concerning alleged anomaly in the bar
examination so that those candidates who failed
therein can be ferreted out and those lawyers
responsible therefor can be disbarred. (In re
Parazo, 82 Phil. 230 [1948]).
Q: In what way should a lawyer not
encroach on professional employment?
A: A lawyer should not steal the other lawyers
client nor induce the latter to retain him by
promise of better service, good result or reduced
fees for his services. Neither should he
disparage another, make comparisons or
publicize his talent as a means to further his law
practice.
A lawyer should not, in the absence of the
adverse partys counsel, interview the adverse
party and question him as to the facts of the
case even if the adverse party was willing to do
so. Neither should he sanction the attempt of his
client to settle a litigated matter with the adverse
party without the consent nor knowledge of the
latters counsel.
Q: What constitutes unauthorized practice
of law?
A: The phrase practice of law implies
customarily or habitually holding oneself out to
the public, as a lawyer, for compensation as
source of livelihood or in consideration of his
office. (People v. Villanueva, 14 SCRA 109
(1965))
Q: What are the only instances a lawyer
can divide or stipulate to divide a fee for
legal services with persons not licensed to
practice law?
A: A lawyer shall not divide or stipulate to divide
a fee for legal services with persons not licensed
to practice law, except:
(a) Where there is a pre-existing agreement
with a partner or associate that, upon the
latters death, money shall be paid over a
reasonable period of time to his estate or to
persons specified in the agreement
(b) Where a lawyer undertakes to complete
unfinished legal business of a deceased
lawyer; or
(c) Where a lawyer or law firm includes non-
lawyer employees in a retirement plan even
if the plan is based in whole or in part, on a
profit sharing agreement
Q: Are lawyers absolutely prohibited from
giving criticisms to the court?
A: No. The rule allows such criticism so long as
it is supported by the record or it is material to
the case. A lawyers right to criticize the acts
of courts and judges in a proper and
respectful way and through legitimate
channels is well recognized. The cardinal
condition of all such criticism is that it shall be
bona fide, and shall not spill over the wall of
decency and propriety. (Agpalo)
Q: How shall a lawyer submit grievances
against a judge?
A: The Supreme Court has the power of
administrative supervision over all courts and the
personnel thereof. (Statutory basis: 1987
Constitution, Art. VIII, Sec. 6)
The duty to respect does not preclude a lawyer
from filing administrative complaints against
erring judges or from acting as counsel for
clients who have legitimate grievances against
them.
LEGAL ETHICS PRE-WEEK 5
The lawyer shall not file an administrative case
until he has exhausted judicial remedies which
result in a finding that the judge has gravely
erred. (Agpalo)
Q: What is forum shopping?
A: There is forum shopping when one:
(1) Goes from one court to another in the hope
of securing a favorable relief in one court,
which another court has denied
(2) File repetitious suits or proceeding in
different courts concerning the same subject
matter after one court has decided the suit
with finality
(3) Filing a similar case in a judicial court after
receiving an unfavorable judgment from an
administrative tribunal.
Forum shopping is prohibited by Supreme Court
Circular No. 28-91, which is now integrated in
the Rules of Civil Procedure.
Q: What is the rationale behind the
prohibition on forum shopping?
A: There is an affirmative duty of a lawyer to
check against useless litigations. His signature
in every pleading constitutes a certificate by
him that to the best of his knowledge there is
a good ground to support it and that it is not
to interpose for delay. The willful violation of
this rule may subject him to (1) appropriate
disciplinary action or (2) render him liable for the
costs of litigation. (Agpalo)
While a lawyer owes entire devotion to the
interest of his client and zeal in the defense of
his clients rights, he should not forget that he is
an officer of the court, bound to assist in the
speedy and efficient administration of justice.
(Agpalo)
The reason is that a lawyer not only owes to his
client the duty of fidelity but, more important, he
owes the duty of good faith and honorable
dealing to the judicial tribunal before which he
practices his profession. (Agpalo)
Excessive delay causes:
1. hardships
2. may force parties into unfair settlement
3. nurture a sense of injustice and breed
cynicism about the administration of justice
Q: What is the rule on the prohibition on
media-nuzzling?
A: Rule 13.02 states 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.
RATIONALE:
Newspaper publications regarding a pending or
anticipated litigation may interfere with a fair
trial, prejudice the administration of justice,
or subject a respondent or a accused to a
trial by publicity and create a public inference
of guilt against him (Agpalo)
Q: In what instances can a lawyer decline
to act as counsel de oficio or amici curiae?
A: The general rule is that a lawyer shall not
decline to act as counsel de oficio or amici
curiae, or to reject a request from the Integrated
Bar of the Philippines or any of its chapters for
rendition of free legal aid.
EXCEPTION: Except for serious and sufficient
cause (Rule 14.02)
Related rules:
Rule 2.01. A lawyer shall not reject, except for
valid reasons, the cause of the defenseless or
the oppressed.
Rule 138, Sec. 20 (h), Duties of attorneys. It is
the duty of an attorneynever to reject, for any
consideration personal to himself, the cause of
the defenseless or oppressed;
Q: Differentiate a counsel de parte,
counsel de oficio and amicus curiae.
A: A counsel de parte is a private counsel
personally chosen by the client. A counsel de
oficio is appointed or assigned by the court, from
among such members of the bar in good
standing who, by reason of their experience and
ability, may adequately defend the accused.
An amicus curiae is a friend of the court or a
bystander and usually a counselor who
interposes or volunteers information upon some
matter of law in regard to which the judge is
doubtful or mistaken (Agpalo).
LEGAL ETHICS PRE-WEEK 6
Q: What do you mean by privileged
communication?
A: An attorney cannot, without the consent of his
client, be examined as to any communication
made by the client to him or his advice given
thereon in the course of professional
employment; nor can an attorneys 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.
Requisites of Privileged Communication
(Rule 130, Section 24 (b) of the RRC):
(1) There is an attorney-client relationship or a
kind of consultancy requirement with a
prospective client;
(2) The communication was made by the client
to the lawyer in the course of the lawyers
professional employment;
(3) The communication must be intended to be
confidential.
Exceptions to privilege (Aguirre):
(1) When a lawyer is accused by the client and
he needs to reveal information to defend
himself
(2) When the client discloses the intention to
commit a crime or unlawful act. (Future
crime)
Q: What is the rule on conflict of interests?
A: GENERAL RULE: A lawyer may not
represent two opposing parties at any point in
time.
A lawyer need not be the counsel-of-record of
either party. He does not have to publicly hold
himself as the counsel of the adverse party nor
make efforts to advance the adverse partys
conflicting interests of record. It is enough that
the counsel had a hand in the preparation of
the pleading of one party.
EXCEPTION: When the parties agree, and for
amicable settlement (Agpalo)
Tests to determine conflict of interest:
(1) when there are conflicting duties
(2) when the acceptance of the new relations
invites or actually lead to unfaithfulness or
double-dealing to another client
(3) when the attorney will be called upon to use
against his first client any knowledge
acquired in the previous employment
NOTE: The test to determine whether there is a
conflict of interest in the representation is
probability, not certainty of conflict.
Q: What is the difference between a
charging lien and a retaining lien?
A: A charging lien is an equitable right to have
the fees and lawful disbursements due a lawyer
for his services, secured to him out of a money
judgment.
Related statutory basis: Rule 138, Sec. 37. An
attorney shall have a lien upon the funds,
documents and papers of his client which
have lawfully come into his possession and
may retain the same until his lawful fees and
disbursements have been paid, and may apply
such funds to the satisfaction thereof.
Requisites for Validity:
(1) attorney-client relationship
(2) lawful possession by lawyer of the clients
funds, documents and papers in his
professional capacity
(3) unsatisfied claim for attorneys fees or
disbursements
A retaining lien is a right merely to retain the
funds, documents and papers of his client which
have lawfully come into his possession and may
retain the same until his lawful fees and
disbursements have been paid.
RETAINING CHARGING
Nature Passive lien. It
cannot be
actively
enforced. It is
a general lien.
Active lien. It
can be
enforced by
execution. It is
a special lien.
Basis Lawful
possession of
funds, papers,
documents,
property
belonging to
client
Securing of a
favorable
money
judgment for
client
Coverage Covers only
funds, papers,
documents,
and property
in the lawful
possession of
the attorney by
reason of his
professional
employment
Covers all
judgments for
the payment of
money and
executions
issued in
pursuance of
such judgment
LEGAL ETHICS PRE-WEEK 7
RETAINING CHARGING
Effectivity As soon as the
lawyer gets
possession of
the funds,
papers,
documents,
property
As soon as the
claim for
attorneys fees
had been
entered into
the records of
the case
Notice Client need
not be notified
to make it
effective
Client and
adverse party
need to
notified to
make it
effective
Applicability May be
exercised
before
judgment or
execution, or
regardless
thereof
Generally, it is
exercisable
only when the
attorney had
already
secured a
favorable
judgment for
his client
Q: When is a lawyer liable to his client for
negligence?
A: GENERAL RULE: Client is bound by
attorneys conduct, negligence and mistake in
handling case or in management of litigation and
in procedural technique, and he cannot be heard
to complain that result might have been different
had his lawyer proceeded differently.
EXCEPTIONS:
1) Where it results in outright deprivation of
clients liberty or property or where interest
of justice so requires
2) Where error by counsel is purely technical
which does not affect substantially clients
cause
3) Ignorance, incompetence or inexperience of
lawyer is so great and error so serious that
client, who has good cause is prejudiced
and denied a day in court
4) Gross negligence of lawyer
5) Lack of acquaintance with technical part of
procedure.
Q: What should a lawyer do in case that he
finds that his client has perpetuated fraud?
A: A lawyer should not allow his client to
perpetuate fraud. However, the lawyer shall not
volunteer the information about the clients
commission of the fraud to anyone for that will
run counter to his duty to maintain at all times
the clients confidences and secrets. (Canon 21)
Rule 19.02 requires the lawyer to terminate his
relationship with the client in the event the latter
fails or refuses to rectify the fraud. (Agpalo)
Q: Differentiate an ordinary attorneys fee
from a quantum meruit-based attorneys
fee.
A: An attorneys fee is the reasonable
compensation paid to a lawyer for the legal
services he has rendered to a client. The basis
of this compensation is the fact of enjoyment by
the client.
Quantum Meruit means as much as a lawyer
deserves. Its essential requisite is acceptance
of the benefits by one sought to be charged for
services rendered under circumstances as
reasonable to notify him that lawyer expects
compensation.
Quantum Meruit is authorized when:
o there is no express contract for attorneys
fees agreed upon between the lawyer and
the client;
o when although there is a formal contract of
attorneys fees, the stipulated fees are found
unconscionable or unreasonable by the
court;
o when the contract for attorneys fees is void
due to purely formal matters or defects of
execution;
o when the counsel, for justifiable cause, was
not able to finish the case to its conclusion;
o when lawyer and client disregard the
contract of attorneys fees
o when there is a contract but no stipulation as
to attorneys fees
Guides in Determining Attorneys Fees in
Quantum Meruit Basis
(1) Time spent and Extent of the Services
Rendered A lawyer is justified in fixing
higher fees when the case is so complicated
and requires more time and efforts to finish
it.
(2) Importance of Subject Matter The more
important the subject matter or the bigger
value of the interest or property in litigation,
the higher is the attorneys fee.
(3) Novelty and Difficulty of Questions Involved
When the questions in a case are novel
and difficult, greater efforts, deeper study
and research, are bound to burn the
lawyers time and stamina considering that
there are no local precedents to rely upon.
(4) Skill demanded of the Lawyer The totality
of the lawyers experience provides him the
skill and competence admired in lawyers.
LEGAL ETHICS PRE-WEEK 8
Q: What is the difference between a
champertous contract and a contingent
contract?
A: A champertous contract is one where the
lawyer stipulates with his client that upon the
prosecution of the case, former will bear all the
expenses for the recovery of things or property
being claimed, and the latter pays only upon
successful litigation. This kind of contract is void
for being against public policy.
A contingent contract is an agreement in which
the lawyers fee, usually a fixed percentage of
what may be recovered in the action, is made to
depend upon the success in the effort to enforce
or defend the clients right. It is a valid
agreement. It is different from a champertous
contract in that the lawyer does not undertake to
shoulder the expenses of the litigation.
CONTINGENT CHAMPERTOUS
Contingent fee is
payable in cash.
Payable in kind only
Lawyers do not
undertake to pay all
expenses of litigation
Lawyers undertake to
pay all expenses of
litigation
Not prohibited Void
Q: What are the factors considered in
computing attorneys fees?
A: Factors of the value (Rule 138, Sec, 24)
1) the importance of the subject matter of
controversy;
2) the extent of the services rendered; and
3) the professional standing of the attorney.
Additionally, the court is not bound by the
opinion of attorneys as expert witness as to
proper compensation and that written contract
shall control the amount paid unless found by
the court to be unconscionable or reasonable.
According to jurisprudence, the court may also
take into consideration the clients capacity to
pay.
Q: What are the limitations imposed on
judges and lawyers regarding the
purchase of properties under litigation?
A: According to Art. 1491 of the Civil Code,
Justices, judges, prosecuting attorneys, clerks 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 auction,
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; this prohibition includes the
act of acquiring by assignment and shall apply to
lawyers, with respect to the property and rights
which may be the object of any litigation in which
they may take part by virtue of their profession.
Q: When can the client terminate the
services of his/her counsel?
A: GENERAL RULE: The client has the right to
terminate at any time with or without just
cause.
LIMITATIONS:
Client cannot deprive counsel of right to be
paid services if dismissal is without cause
Client cannot discharge counsel as an
excuse to secure repeated extensions of
time
Notice of discharge is required for both court
and adverse party
Q: In what cases may a lawyer withdraw
his services from a client?
A: Rule 22.01 - A lawyer may withdraw his
services in any of the following case:
o When the client pursues an illegal or
immoral course of conduct in connection
with the matter he is handling;
o When the client insists that the lawyer
pursue conduct violative of these canons
and rules;
o When his inability to work with co-counsel
will not promote the best interest of the
client;
o When the mental or physical condition of the
lawyer renders it difficult for him to carry out
the employment effectively;
o When the client deliberately fails to pay the
fees for the services or fails to comply with
the retainer agreement;
o When the lawyer is elected or appointed to
public office; and
o Other similar cases.
Conditions for the Substitution of Counsel
1) Written request for substitution
2) Written consent of client
3) Written consent of the attorney to be
substituted or in the absence, proof of
service of notice of said motion to the
attorney to be substituted
LEGAL ETHICS PRE-WEEK 9
Q: What should a lawyer do after
withdrawing his services or having his
services substituted by another?
A: Rule 22.02 - A lawyer who withdraws or is
discharged shall, subject to a retainer lien,
immediately turn over all papers and property to
which the client is entitled, and shall cooperate
with his successor in the orderly transfer of the
matter, including all information necessary for
the proper handling of the matter.
Q: What are the requirements for
admission to practice law?
A: A person is admitted to practice law in the
Philippine if s/he is a Filipino citizen, who is a
resident of the Philippines, at least 21 years of
age, of good moral character, a holder of a
college degree and a graduate of a law school
approved and recognized by the Secretary of
Education, and one who has successfully taken
and passed the bar examinations and taken the
lawyers oath.
Q: What are the qualifications for the
practice of law?
A: GENERAL RULE: Any person duly admitted
as member of the Bar and who is in good and
regular standing is qualified to practice law.
EXCEPTIONS: (Rule 138)
(1) Any LAW STUDENT who has successfully
completed the third year of the prescribed 4
year law curriculum and who is undergoing
law student practice under the schools
clinical legal education program.
(2) AGENT
a party in a civil suit may conduct his
litigation either personally or by attorney
unless the party is a juridical person.
(Allowed in MTC, RTC, appellate court.)
for a criminal case, in a locality where a
lawyer is unavailable, a judge may
appoint a non-lawyer who is a resident
of the province, and of good repute for
probity and ability to defend the
accused. (Allowed up to MTC-level only)
(3) SELF-REPRESENTAION- A person may
represent himself before any court. He is
bound by the same rules in conducting the
trial of his case. He cannot, after judgment,
claim that he was not properly represented.
Q: What is the lawyers oath?
A: I, _____, do solemnly swear that I will
maintain allegiance to the Republic of the
Philippines.
I will support the Constitution and obey the laws
as well as the legal orders of the duly constituted
authorities therein;
I will do no falsehood nor consent to the doing of
any in court;
I will not wittingly or willingly promote or sue any
groundless, false or unlawful suit nor give aid
nor consent to the same;
I will delay no man for money or malice, and will
conduct myself as a lawyer according to the best
of my knowledge and discretion with all good
fidelity as well to the court as to my clients; and
I impose upon myself this obligation voluntarily,
without any mental reservation or purpose of
evasion.
So help me God.
Q: What is an indigent litigant?
A: Indigent litigants are those
(1) whose gross income and that of their
immediate family do not exceed an amount
double the monthly minimum wage of an
employee and
(2) who do not own real property with a fair
market value as stated in the current tax
declaration of more than P300,000 shall be
exempt from payment of legal fees (Bar
Matter No. 2012)
Q: What is the proposed requirement on
Mandatory Legal Aid Service for Practicing
Lawyers?
A: Every practicing lawyer is required to render a
minimum of sixty (60) hours of free legal aid
services to indigent litigants in a year. Said 60
hours shall be spread within a period of twelve
(12) months, with a minimum of five (5) hours of
free legal aid services each month. He shall
coordinate with the Clerk of Court for cases
where he may render free legal aid service and
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
services in a case. (Bar Matter 2012)
LEGAL ETHICS PRE-WEEK 10
Q: What are the fourfold duties of a
lawyer?
A: The duties of an attorney, impressed with the
solemnity of his oath, may be classified into
those which he owes to the court, to the public,
to the bar, and to his client.
As an officer of the court, an attorney is
subject to the disciplinary authority of the court
and to its orders and directives with respect to
his relation to the court as well as to his client.
He is continually accountable to the court for the
manner in which he exercises his privilege to
practice law
A lawyers duty to this client dictates that he
faithfully, honestly and conscientiously represent
the interest of his client.
A lawyers duty to the legal profession
imposed upon him a relation to colleagues at the
bar characterized by candor, fairness, and
unwillingness to resort to current business
methods of advertising and encroachment on
their practice, or dealing directly with their
clients.
Lastly, the practice of law is a profession, a form
of public trust, the performance of which is
entrusted only to those who are qualified and
who possess good moral character. The basic
ideal of the profession is to render public service
and secure justice for those who seek its aid.
(Agpalo)
Q: What is the purpose of legal aid,
according to the IBP?
A: LEGAL AID IS NOT A MATTER OF
CHARITY. It is a means for the correction of
social imbalance that may and often do lead
to injustice, for which reason it is a public
responsibility of the Bar. The spirit of public
service should, therefore, underlie all legal aid
offices. The same should be administered to
indigent and deserving members of the
community on all cases, matters and situations
in which legal aid may be necessary to forestall
an injustice. (IBP Handbook, Guidelines
Governing the Establishment and Operation of
the Legal Aid Office, Art. 1, Sec. 1)
Q: What is the character of the lawyer-
client relationship and how is it created?
A: The relation of attorney and client is strictly
personal and highly confidential and fiduciary.
(1) Strictly personal- It involves mutual trust
and confidence of the highest degree,
irrespective of whether the client is a private
person or a government functionary. Since it
is a personal relation, a court or
administrative tribunal cannot but recognize
its creation on the faith of the clients word. It
should not be established as the result of
pressure or deception.
(2) Fiduciary- The relation of attorney and
client is highly fiduciary in nature and of a
very delicate, exacting and confidential
character. 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 advantage
conflicting in any way, directly or indirectly,
with the interest of his client.
Q: Are lawyers prohibited from practicing a
dual profession or partnership?
A: NO. GENERAL RULE: Exercise of dual
profession is not prohibited but a lawyer
must make it clear when he is acting as a
lawyer and when he is otherwise, especially in
occupations related to the practice of law.
Reason: certain ethical considerations may be
operative in one profession and not in the other.
(Agpalo)
A lawyer is not barred from dealing with his
client but the business transaction must be
characterized with utmost honesty and good
faith. Business transactions between an attorney
and his client are disfavored and discouraged by
policy of law because by virtue of a lawyers
office, he is an easy position to take advantage
of the credulity and ignorance of his client. Thus,
there is no presumption of innocence or
improbability of wrongdoing in favor of
lawyers. (Nakpil v. Valdez, 286 SCRA 758
(1998))
Q: What is the duty of a counsel when a
client is believed to be guilty in a criminal
case?
A: The law makes it the lawyers duty never to
reject, for any consideration personal to himself,
the cause of the defenseless or the oppressed.
Rule 14.01 complements it by requiring that: A
lawyer shall not decline to represent a person
solely on account of his opinion regarding the
guilt of said person.
LEGAL ETHICS PRE-WEEK 11
Regardless of his personal feeling, a lawyer
should not decline representation because a
client or a cause is unpopular or community
reaction is adverse. The law presumes an
accused to be innocent, and he is entitled to
acquittal unless his guilt is proved beyond
reasonable doubt.
(Agpalo)
DISCIPLINE OF LAWYERS; NOTARIAL
PRACTICE
Q: In the discipline of lawyers, what is the
nature of suspension and disbarment
proceedings?
A: Disciplinary proceedings against lawyers are
sui generis: neither purely civil nor purely
criminal. It is notand does not involvea trial
of an action or a suit, but is rather an
investigation by the Court in the conduct of its
officers. Not being intended to inflict punishment,
it is no sense a criminal prosecution.
Accordingly, there is neither a plaintiff nor a
prosecutor. x x x 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. (In Re:
Almacen, supra)
Nature of Proceedings:
o Neither a civil action nor a criminal
proceeding;
o Sui generis, it is a class of its own since it is
neither civil nor criminal Confidential in
nature
o Defense of double jeopardy is not available
o Can be initiated by the SC, motu proprio, or
by the IBP. It can be initiated without a
complaint.
o Can proceed regardless of interest of the
complainants
o Imprescriptible
o It is itself due process of law
Q: What are the objectives of suspension
and disbarment?
A: Objectives of Suspension and Disbarment:
o To compel the attorney to deal fairly and
honestly with his clients;
o To 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;
o To punish the lawyer;
o To set an example or warning for the other
members of the bar;
o To safeguard the administration of justice
from dishonest and incompetent lawyers;
o To protect the public;
Q: What are the grounds for disbarment?
A: Grounds for Disbarment:
1) Deceit
2) Malpractice, or other gross misconduct in
office any malfeasance or dereliction of
duty committed by a lawyer
3) Grossly immoral conduct
4) Conviction of a crime involving moral
turpitude
5) Violation of oath of office
6) Willful disobedience of any lawful order of a
superior court
7) Corruptly or willfully appearing as an
attorney for a party to case without an
authority to do so
Broadly speaking, the grounds for disbarment or
suspension of a lawyer consist of those acts of
misconduct before and after his admission to
practice.
But this enumeration is not exclusive
May be disciplined or suspended for ANY
misconduct in his professional or private
capacity which shows him to be wanting in
moral character
Q: Who are the officers authorized to
investigate disbarment cases?
A: Supreme Court
IBP through its Commission on Bar
Discipline or authorized investigators
Office of the Solicitor General
Q: What is the nature of the punishment of
contempt of court?
A: It is exercised on preservative and not on
vindictive principles and on corrective rather
than the retaliatory idea of punishment. It is
criminal in nature.
The power to punish for contempt is inherent in
all courts. It is essential in the observance of
order in judicial proceedings and to enforce
judgment, orders and writs.
LEGAL ETHICS PRE-WEEK 12
Q: What are the kinds of contempt?
A: Kinds of Contempt
Direct Contempt
Consists of misbehavior in the presence of or
near a court or judge as to interrupt or obstruct
the proceedings before the court or the
administration of justice.
Indirect or Constructive Contempt
One committed away from the court involving
disobedience of or resistance to a lawful writ,
process, order, judgment or command of the
court, tending to belittle, degrade, obstruct,
interrupt or embarrass the court.
Civil contempt
Failure to do something ordered by the court
which is for the benefit of the party.
Criminal contempt
Consists of any conduct directed against the
authority or dignity of the court.
Q: What acts of a lawyer constitute
contempt?
A: Acts of a Lawyer Constituting Contempt
o Misbehavior as officer of court
o Disobedience or resistance to court order
o Abuse or interference with judicial
proceedings
o Obstruction in administration of justice
o Misleading courts
o Making false allegations, criticisms, insults,
veiled threats against the courts
o Aiding in unauthorized practice of law
(suspended or disbarred)
o Unlawful retention of clients funds
o Advise client to commit contemptuous acts
Q: What constitutes negligence or
abandonment by a lawyer?
A: The failure to exercise due diligence or the
abandonment if the clients cause makes the
lawyer unworthy of the trust which the client has
reposed in him. It is a breach of his undertaking
with his client. To warrant suspension or
disbarment, however, the negligence or
carelessness in the performance of duty should
not only be gross in character but should have
caused material prejudice to clients interest as
well. Mere negligence or inattention which
produces no pecuniary damage to the client may
only justify reprimand or censure (Alcala v. De
Vera) except when the breach of duty of client
also constitutes a gross violation of obligation to
the court, in which case a severer sanction, such
as suspension from the practice of law, may be
warranted.
(Agpalo)
Q: In what way can lawyers be civilly or
criminally liable?
A:
CIVIL LIABILITY
Client is prejudiced by lawyers negligence
and misconduct.
Breach of fiduciary obligation
Civil liability to third persons
Libelous words in pleadings; violation of
communication privilege
Liability for costs of suit (treble costs)
when lawyer is made liable for insisting on
clients patently unmeritorious case or
interposing appeal merely to delay litigation
CRIMINAL LIABILITY
Prejudicing client through malicious breach
of professional duty
Revealing client secrets
Representing adverse interests
Introducing false evidence
Misappropriating clients funds (estafa)
Libel except if statements are connected
with the relevant, pertinent, and material to
the cause in hand or the subject of the
inquiry
Q: What is a notary public and what is
his/her duty and purpose?
A: A NOTARY PUBLIC or a notary is any person
commissioned to perform official acts,
acknowledgements; oaths and affirmations;
jurats; signature witnessing;
copy certifications; and any other act authorizes
in the rules
Purpose
To verify the personal appearance of affiant and
the genuineness of signature
To authenticate documents and verify due
execution, making the documents admissible as
evidence without proof of authenticity.
Notarization is not an empty, meaningless,
routinary act. It is invested with substantive
public interest, such that only those who are
qualified or authorized may act as notaries
publicA notarial document is by law entitled to
full faith and credit upon its face. Courts,
administrative agencies and the public at
LEGAL ETHICS PRE-WEEK 13
large must be able to rely upon the
acknowledgement executed by a notary
public. (Baylon v. Almo, A.C. No.
6962, June 25, 2008)
Q: What are the qualifications of a notary
public?
A: A Notary Public must be a citizen of the
Philippines, over 21 years of age, a resident of
the Philippines for at least one year and
maintains a regular place of work or business, a
member of the Philippine Bar in good standing,
with clearances from the Bar Confidant of the
SC and the IBP and must have no conviction for
any crime involving moral turpitude. (Hence all
notaries are lawyers but not all lawyers are
notaries.)
Q: What is a notarial commission?
A: A notarial commission is granted by an
executive judge after petition of the lawyer, and
is good for two years. Every petition undergoes
a hearing and approved after petition is proven
sufficient in form and substance, petitioner
proves allegations in petition, petitioner
establishes to the satisfaction of the court that
he has read and understood the Rules on
Notarial Practice.
Q: What can be notarized?
A: GENERAL RULE: A notary can notarize any
document, upon request of affiant. Notarization
of document must be at the notary publics
regular place of work.
Exceptions:
(1) in public offices, convention halls and other
places where oaths of office are
administered
(2) public function areas in hotels and similar
areas used for the signing of instruments or
documents requiring notarization
(3) hospitals and other medical institutions
where a part to an instrument is confined for
treatment
(4) any place where a party to the instrument
requiring notarization is under detention
*Irregularity in place - if it is outside of his
territorial jurisdiction
CODE OF JUDICIAL CONDUCT
Q: How can the judiciary remain
independent or unaffected by media and
influence?
A: Mass media has its duty to fearlessly but
faithfully inform the public about events and
persons. However, when a case has received
wide and sensational publicity, the trial court
should be doubly careful not only to be fair
and impartial but also to give the appearance
of complete objectivity in its handling of the
case. (Go v. Court of Appeals, 206 SCRA 165)
Q: What is expected of a judges conduct
whether in public and in private?
A: Judges shall ensure that not only is their
conduct above reproach, but that it is perceived
to be so in the view of a reasonable observer.
(Canon 2, Sec. 1)
Respondent judge was also at fault for his
shortness of temper and impatience, contrary
to the duties and restriction imposed upon him
by reason of his office. He failed to observe the
proper decorum expected of judicial officers.
Judicial officers are given contempt powers
so that they can remind counsels of their
duties in court without being arbitrary,
unreasonable or unjust. Respondent should
have cited the complainant in contempt of court
instead of throwing tantrums by banging his
gavel loudly and unceremoniously walking out of
the courtroom.
Although respondent had a valid explanation
for carrying a gun, his act of carrying it in
plain view of the lawyers (including the
complainant) and considering what just
happened, cannot be taken as an innocent
gesture. It was calculated to instill fear and
intimidate the complainant. Respondent's
behavior constitutes grave misconduct. A
judge's conduct should be free from the
appearance of impropriety not only in his official
duties but in his everyday life. One who lives by
the precept that might is right is unworthy to be
a judicial officer. (Romero v. Valle (1987))
LEGAL ETHICS PRE-WEEK 14
Q: What are the grounds for
disqualification or inhibition from
proceedings?
A: Canon 3, sec. 5
Judges shall disqualify themselves from
participating in any proceedings in which they
are unable to decide the matter impartially or in
which it may appear to a reasonable observer
that they are unable to decide the matter
impartially. Such proceedings include, but are
not limited to, instances where:
o The judge has actual bias or prejudice
concerning a party or personal knowledge of
disputed evidentiary facts concerning the
proceedings;
o The judge previously served as a lawyer or
was a material witness in the matter in
controversy;
o The judge, or a member of his or her family,
has an economic interest in the outcome of
the matter in controversy;
o 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;
o The judge's ruling in a lower court is the
subject of review;
o 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
o The judge knows that his or her spouse or
child has a financial interest, as heir,
legatee, creditor, fiduciary, or otherwise, in
the subject matter in controversy or in a
party to the proceeding, or any other interest
that could be substantially affected by the
outcome of the proceedings
Under the Rules of Court, the grounds for
Mandatory or Compulsory Disqualification
(Rule 131, ROC) are:
1) He or his wife or his child is pecuniarily
interested as heir, legatee, creditor or
otherwise;
2) Relation to either party within the sixth
degree of consanguinity or affinity or to
counsel within the 4th civil degree
3) When he has been an executor, guardian,
administrator, trustee or counsel;
4) When he has presided in an inferior court
where his ruling or decision is subject to
review.
However, a judge may also voluntarily inhibit
himself for just and valid reasons other than
those mentioned above. (Rule 137, Sec. 1)
This leaves the discretion to the judge to decide
for himself questions as to whether he will desist
from sitting in 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 the cold neutrality required of
him, in which event the appellate court will see
to it that he disqualifies himself.
A decision to disqualify himself is not conclusive
and his competency may be determined on
application for mandamus to compel him to act.
Judges 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.
DISQUALIFICATION INHIBITION
Basis Specific and exclusive No specific
grounds BUT
there is a
broad basis
for such, i.e.,
good, sound
ethical
grounds
Role of
the
judicial
officer
Judicial officer has no
discretion to sit or try
the case
The matter is
left to the
sound
discretion of
the judge
Q: How shall a judge ensure equality in the
performance of his duty?
A: Ensuring equality of treatment to all before
the courts is essential to the due performance of
the judicial office. (Canon 5)
This is a new Canon not found in the previous
two Philippine Codes of Judicial Conduct. It
expands the measures to promote equality
required by international human rights
agreements. Those agreements advocate a
universal application of law and non-
discrimination between the sexes. (PhilJa)
Sec. 1. Judges shall be aware of, and
understand, diversity in society and differences
arising from various sources, including but not
limited to race, color, sex, religion, national
origin, caste, disability, age, marital status,
sexual orientation, social and economic status
and other like causes.
LEGAL ETHICS PRE-WEEK 15
Sec. 2. Judges shall not, in the performance of
judicial duties, by words or conduct, manifest
bias or prejudice towards any person or group
on irrelevant grounds.
Sec. 3. Judges shall carry out judicial duties with
appropriate consideration for all persons, such
as the parties, witnesses, lawyers, court staff
and judicial colleagues, without differentiation on
any irrelevant ground, immaterial to the proper
performance of such duties.
Sec. 4. Judges shall not knowingly permit court
staff or others subject to his or her influence,
direction or control to differentiate between
persons concerned, in a matter before the judge,
on any irrelevant ground.
Sec. 5. Judges shall require lawyers in
proceedings before the court to refrain from
manifesting, by words or conduct, bias or
prejudice based on irrelevant grounds, except
such as are legally relevant to an issue in
proceedings and may be the subject of
legitimate advocacy.
Q: What are the prerequisites to the due
performance of judicial office?
A: Competence and diligence are prerequisites
to the due performance of judicial office. (Canon
6)
The judicial duties of a judge take precedence
over all other activities (sec.1). 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 courts
operations (sec. 2).
In the instant case, respondent judge impeded
the speedy disposition of cases by his successor
on account of missing records of cases. This fact
reflects an inefficient and disorderly system in
the recording of cases assigned to his sala.
Proper and efficient court management is as
much the judge's responsibility for the Court
personnel are not the guardians of a Judge's
responsibilities. A judge is expected to ensure
that the records of cases assigned to his sala
are intact. There is no justification for missing
records save fortuitous events. The loss of not
one but eight records is indicative of gross
misconduct and inexcusable negligence
unbecoming of a judge. (Longboan v. Polig
(1990))