Legal Ethics Handout - October 4, 2012

LECTURE NOTES ON LEGAL ETHICS ATTY. MOLLY CR. ABIOG,M.D.
October 4,2012
CHAPTER I. THE LAWYER AND SOCIETY
CANON 1 - A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES. VIOLATIONS OF THE NOTARIAL LAW A notary public should not notarize a document unless the person who signs it is the same person who executed it and who personally appeared before him to attest to the contents and the truth of what are stated therein. This is to enable the notary public to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the partys free act. The duties of a notary public is dictated by public policy and impressed with public interest. It is not a meaningless ministerial act of acknowledging documents executed by parties who are willing to pay notarial fees. It is of no moment that the subject SPA was not utilized by the grantee for the purpose it was intended because the property was allegedly transferred from complainant to her brother by virtue of a deed of sale consummated between them. What is being penalized is respondents act of notarizing a document despite the absence of one of the parties. A notarized document is by law entitled to full credit upon its face and it is for this reason that notaries public must observe the basic requirements in notarizing documents. Otherwise, the confidence of the public in notarized documents will be undermined. Nesa Isenhardt vs. Atty. Leonardo M. Real, A.C. No. 8254, February 15, 2012. A lawyer cannot escape liability for making an untruthful statement in a public document for an unlawful purpose when he admitted that he drafted and notarized another instrument that did not state the true consideration of the sale so as to reduce the capital gains and other taxes due on the transaction. As the second deed indicated an amount much lower than the actual price paid for the property sold, respondent abetted in depriving the Government of the right to collect the correct taxes due. Not only did respondent assist the contracting parties in an activity aimed at defiance of the law, he likewise displayed lack of respect for and made a mockery of the solemnity of the oath in an Acknowledgment. By notarizing such illegal and fraudulent document, he is entitling it full faith and credit upon its face, which it obviously does not deserve considering its nature and purpose. Respondents actions violated not only Rule 1.02, Canon 1 of the Code of Responsibility, but pertinent sections of the 2004 Rules on Notarial Practice as well. Thus, respondent is meted the penalty of revocation of notarial commission and suspension from the practice of law for a period of two years. Pacita Caalim-Verzonilla v. Atty. Victoriano G. Pascua. A.C. No. 6655. October 11, 2011. The fact that the affiant previously appeared in person and signed the Deed of Donation before the respondent notary public does not justify the
LECTURE NOTES ON LEGAL ETHICS ATTY. MOLLY CR. ABIOG,M.D. October 4,2012
respondents act of notarizing the Deed of Donation, considering the affiants absence on the very day the document was actually notarized. In the notarial acknowledgment of the Deed of Donation, respondent attested that Atty. Linco personally came and appeared before him on July 30, 2003. Yet obviously, Atty. Linco could not have appeared before him on July 30, 2003, because the latter died on July 29, 2003 a day before the Deed of Donation was notarized, and respondent was aware of that fact. Clearly, respondent made a false statement and violated Rule 10.01 of the Code of Professional Responsibility and his oath as a lawyer. Faithful observance and utmost respect of the legal solemnity of the oath in an acknowledgment or jurat is sacrosanct. Respondent should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein. Atty. Florita S. Linco v. Atty. Jimmy D. Lacebal. A.C. No. 7241. October 17, 2011. A notary public should not facilitate the disintegration of a marriage and the family by encouraging the separation of the spouses and extrajudicially dissolving the conjugal partnership. In preparing and notarizing an agreement for extrajudicial dissolution of marriage a void document respondent violated Rule 1.01, Canon 1 of the Code of Professional Responsibility which provides that [a] lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. Respondent knew fully well that the Kasunduan Ng Paghihiwalay has no legal effect and is against public policy. Therefore, respondent may be suspended from office as an attorney for breach of the ethics of the legal profession as embodied in the Code of Professional Responsibility. Rodolfo A. Espinosa and Maximo A. Glindo v. Atty. Julieta A. Omaa. A.C. No. 9081. October 12, 2011. GROSS MISCONDUCT Deliberate failure to pay just debts constitutes gross misconduct, for which a lawyer may be sanctioned with suspension from the practice of law. Lawyers are instruments for the administration of justice and vanguards of our legal system. They must, at all times, faithfully perform their duties to society, to the bar, the courts and to their clients, which include prompt payment of financial obligations. Manuel C. Yuhico vs. Atty. Fred L. Gutierrez, A.C. No. 8391, November 23, 2010. There is nothing ethically remiss in a lawyer who files numerous cases in different fora, as long as he does so in good faith, in accordance with the Rules, and without any ill-motive or purpose other than to achieve justice and fairness. In this case, the barrage of cases filed by the respondent against his former client and others close to her was meant to overwhelm said client and to show her that the respondent does not fold easily after he was meted a penalty of one year suspension from the practice of law. Atty. Carmen Leonor M. Alcantara, et al. vs. Atty. Eduardo C. de Vera, A.C. No. 5859, November 23, 2010. Respondent (lawyer) was ordered to reimburse his client Php16,300.00. Nine years after the directive was made, he effected payment.
Respondents belated compliance with the order glaringly speaks of his lack of candor, of his dishonesty, if not defiance of Court orders, qualities that do not endear him to the esteemed brotherhood of lawyers. The lack of any sufficient justification or explanation for the nine-year delay in complying with the Resolutions betrays a clear and contumacious disregard for the lawful orders of this Court. Such disrespect constitutes a clear violation of the lawyers Code of Professional Responsibility. Leonard W. Richards vs. Patricio A. Asoy, A.C. No. 2655, October 12, 2010. A lawyer was ordered suspended from the practice of law for two (2) years, because, aside from issuing worthless checks and failing to pay her debts, she has also shown wanton disregard of the IBPs and Court Orders in the course of the proceedings. A-1 Financial Services, Inc. vs. Atty. Laarni N. Valerio, A.C. No. 8390, July 2, 2010. WILLFUL DISOBEDIENCE OF COURT ORDERS The Supreme Court disbarred a lawyer for gross misconduct and willful disobedience of the Court's orders after finding that the latter continued to practice law despite a five-year suspension order, and failed to comply with its resolutions. Previously, the lawyer was suspended from the practice of law for five years and ordered to return P3,900.00 to her client in an En Banc decision dated December 11, 2003 after she was found guilty of gross misconduct for abandoning her client in bad faith and failing to comply with the Courts orders. While still suspended, however, she appeared in three cases using another name (as Atty. Liezl Tanglao) as stated in a letter-report dated November 12, 2007 of Judge Consuelo Amog-Bocar, presiding Judge of the RTC of Iba, Zambales, Branch 71, to then Court Administrator Christopher O. Lock. In a resolution dated April 9, 2008, the Court ordered the lawyer to comment on Judge Amog-Bocar's letter-report. However, she failed to file the required comment. On June 10, 2009, Court reiterated its order. Despite receipt of the Courts two resolutions, she still failed to comply. On September 29, 2009, the Court thus issued a resolution finding her guilty of indirect contempt and ordering her to pay a fine amounting to P30,000. It also sternly warned her that a repetition of the same or similar infractions will be dealt with more severely. Despite due notice, she failed to pay the fine. In view of the foregoing, the Supreme Court found her unfit to continue as a member of the bar. It held that respondent's conduct evidently fell short of what is expected of her as an officer of the court as she obviously possesses a habit of defying this Court's orders. She willfully disobeyed this Court when she continued her law practice despite the five-year suspension order against her and even misrepresented herself to be another person in order to evade said penalty. Thereafter, when she was twice ordered to comment on her continued law practice while still suspended, nothing was heard from her despite receipt of two Resolutions form this Court. Neither did she pay the P30,000 fine imposed in the September 29, 2009 Resolution. A.C. No. 534, Santeco v. Avance et al, February 22, 2011 Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
DISHONEST CONDUCT: Misappropriation of Clients Funds The Supreme Court disbarred a lawyer for obtaining money from a client without rendering legal services. Complainant engaged the legal services of respondent to assist her and her child in pursuing and protecting their rights as heirs of her deceased husband who was a British national. These services include claiming insurance proceeds due to the complainant and her child, as well as processing visa applications for travel to England. The lawyer solicited various sums from the complainant, allegedly for purposes of defraying expenses in connection with the engagement. The lawyer admitted having received money from complainant but failed to render an accounting or, at least, apprise the complainant of the actual expenses incurred. Worse, the lawyer even inculcated in the mind of the complainant that she had to adhere to the nefarious culture of giving grease money or lagay to the British Embassy personnel, as if it was an ordinary occurrence in the normal course of conducting official business transactions as a means to expedite the visa applications. This runs afoul of the dictum in Rule 1.01 of Canon 1 of the Code of Professional Responsibility which states that a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. Respondents repeated reprehensible acts of employing chicanery and unbecoming conduct to conceal her web of lies, to the extent of milking complainants finances dry, and deceitfully arrogating upon herself the insurance proceeds amounting to P700,000.00 that should rightfully belong to complainant, in the guise of rendering legitimate legal services, clearly transgressed the norms of honesty and integrity required in the practice of law. The Court held that she should have never deviated from the benchmarks set by Canon 16 of the Code of Professional Responsibility (CPR) which mandates that a lawyer shall hold in trust all moneys and properties of his client that may come into his possession. Specifically, Rule 16.01 states that a lawyer shall account for all money or property collected or received for or from the client, and Rule 16.03 thereof requires that a lawyer shall deliver the funds and property of a client when due or upon demand. This being so, respondent should be purged from the privilege of exercising the noble legal profession. Marites Freeman v. Atty. Zenaida P. Reyes. A.C. No. 6246. November 15, 2011. The Supreme Court suspended a lawyer for 2 Years for not remitting money to client. Complainant Bayonla, together with her uncle, engaged the legal services of the lawyer to assist them in collecting their share in the expropriation compensation from the Air Transportation Office (ATO), Cagayan De Oro City. Bayonla and her uncle inherited land that was expropriated in connection with the construction of an airport. Bayonlas share of the expropriation compensation amounted to P123,582.67 but the lawyer delivered to her only P79,000, which was short by P44,582.67. The lawyer was found to have violated the Code of Professional Responsibility (CPR), and warned that a similar offense by her will be dealt with more severely. She was further found guilty of violating the canons of the CPR, namely Rule 16.01 and Rule 16.03 of Canon 16, which require that a lawyer shall hold in trust all moneys and properties of her client that
may come into her possession. Rule 16.01 imposes on the lawyer the duty to account for all money or property collected or received for or from the client. Rule 16.03 demands that the lawyer shall deliver the funds and property of his client when due or upon demand, subject to the lawyers lien over the funds, or the lawyers option to apply so much of the funds as may be necessary to satisfy the lawful fees and disbursements, giving notice promptly thereafter to the client. Moreover, the Court held that the filing of the perjury charge by Atty. Reyes against Bayonla and of the estafa charge by Bayonla against Atty. Reyes could not halt or excuse the duty of Atty. Reyes to render an accounting and to remit the amount due to Bayonla. The Court added that the pendency of such cases does not inhibit the administrative matter from proceeding on its due course. The court further held that: our only concern in the instant case is the determination of respondents administrative liability and our findings herein should not in any way be treated as having any material bearing on any other judicial action which the parties may choose to file against each other. AC No. 4808, Bayonla v. Reyes, November 22, 2011 A lawyer was suspended for 6 months when he deceived his clients into signing a deed of sale transferring a portion of their land to him. It is clear from the records that respondent deceived the Spouses Floran when he asked them to unknowingly sign a deed of sale transferring a portion of their land to him. Respondent also made it appear that the original owner of the land conveyed her rights thereto to respondent and not to the Spouses Floran. When the sale of the Spouses Florans land pushed through, respondent received half of the proceeds given by the buyer and falsely misled the Spouses Floran into thinking that he will register the remaining portion of the land. Lamentably, the lawyer played on the navet of the Spouses Floran to deprive them of their valued property. This is an unsavory behavior from a member of the legal profession. Aside from giving adequate attention, care and time to his clients case, a lawyer is also expected to be truthful, fair and honest in protecting his clients rights. Once a lawyer fails in this duty, he is not true to his oath as a lawyer. Respondent lawyer violated Rule 1.01 of Canon 1, Canon 15, and Rule 18.03 of Canon 18 of the Code of Professional Responsibility for which he is suspended from the practice of law for six months. Nemesio Floran and Caridad Floran v. Atty. Roy Prule Ediza. A.C. No. 5325. October 19, 2011. Respondent lawyer was found to have violated Rule 1.01 of Canon 1 of the Code of Professional Responsibility. Respondents actions clearly show that she deceived complainant into lending money to her through the use of documents and false representations and by taking advantage of her education and complainants ignorance in legal matters. As manifested by complainant, he would have never granted the loan to respondent were it not for respondents misrepresentation that she was authorized to sell the property and that complainant could register the open deed of sale if respondent fails to pay the loan. By her misdeed, respondent has eroded not only complainants perception of the legal profession but the publics perception as well. Her actions constitute gross misconduct for which she may be disciplined. Tomas P. Tan, Jr. v. Atty.
Haide V. Gumba. A.C. No. 9000. October 5, 2011. Respondent acts of converting his secretary into a mistress; contracting two marriages with Shirley and Leny, are grossly immoral which no civilized society in the world can countenance. The subsequent detention and torture of the complainant is gross misconduct which only a beast may be able to do. In fine, by engaging himself in acts which are grossly immoral and acts which constitute gross misconduct, respondent has ceased to possess the qualifications of a lawyer. Rosario T. Mecaral vs. Atty. Danilo S. Velasquez, A.C. No. 8392, June 29, 2010. Rule 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. Rule 1.03 - A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man's cause. Rule 1.04 - A lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement.
CANON 2 - A LAWYER SHALL MAKE HIS LEGAL SERVICES AVAILABLE IN AN EFFICIENT AND CONVENIENT MANNER COMPATIBLE WITH THE INDEPENDENCE, INTEGRITY AND EFFECTIVENESS OF THE PROFESSION.
Rule 2.01 - A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed. Rule 2.02 - In such cases, even if the lawyer does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary to safeguard the latter's rights. Rule 2.03 - A lawyer shall not do or permit to be done any act designed primarily to solicit legal business. Rule 2.04 - A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant.
CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE INFORMATION OR STATEMENT OF FACTS.
Rule 3.01 - A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services. Rule 3.02 - In the choice of a firm name, no false, misleading or assumed name shall be used. The continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased. Rule 3.03 - Where a partner accepts public office, he shall withdrawal from the firm and his name shall be dropped from the firm name unless the law allows him to practice law currently. Rule 3.04 - A lawyer shall not pay or give anything of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business. CANON 4 - A LAWYER SHALL PARTICIPATE IN THE DEVELOPMENT OF THE LEGAL SYSTEM BY INITIATING OR SUPPORTING EFFORTS IN LAW REFORM AND IN THE IMPROVEMENT OF THE ADMINISTRATION OF JUSTICE. CANON 5 - A LAWYER SHALL KEEP ABREAST OF LEGAL DEVELOPMENTS, PARTICIPATE IN CONTINUING LEGAL EDUCATION PROGRAMS, SUPPORT EFFORTS TO ACHIEVE HIGH STANDARDS IN LAW SCHOOLS AS WELL AS IN THE PRACTICAL TRAINING OF LAW STUDENTS AND ASSIST IN DISSEMINATING THE LAW AND JURISPRUDENCE. CANON 6 - THESE CANONS SHALL APPLY TO LAWYERS IN GOVERNMENT SERVICES IN THE DISCHARGE OF THEIR TASKS.
The Code of Professional Responsibility does not cease to apply to a lawyer simply because he has joined the government service. Where a lawyers misconduct as a government official is of such nature as to affect his qualification as a lawyer or to show moral delinquency, then he may be disciplined as a member of the bar on such grounds. Martin Lahn III and James P. Concepcion vs. Labor Arbiter Jovencio Li. Mayor, Jr., A.C. No. 7430, February 15, 2012. Rule 6.01 - The primary duty of a lawyer engaged in public prosecution is not to convict but to see that justice is done. The suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action. Rule 6.02 - A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties. Rule 6.03 - A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service.
CHAPTER II. THE LAWYER AND THE LEGAL PROFESSION
CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR.
The Integrated Bar of the Philippines The Integrated Bar of the Philippines (IBP) is not liable for damages for recommending disbarment without a full-blown hearing. On February 23, 2003, the IBP Board, then composed of Jose Anselmo I. Cadiz, Leonard S. De Vera, Romulo A. Rivera, Dante G. Ilaya, Pura Angelica Y. Santiago, Rosario T. Setias-Reyes, Jose Vicente B. Salazar, Manuel M. Mozon, Immanuel L. Sodusta, Carlos L. Valdez, Jr. and Lydia A. Navarro received an administrative complaint against Atty. Gacott for gross misconduct, deceit, and gross dishonesty. Designated Investigating Commissioner Navarro summoned the parties to a mandatory conference and required them to submit their position papers where she later based her recommendation of a penalty of six months suspension from the practice of law. The IBP Board adopted Commissioner Navarro's findings but increased the penalty to disbarment which it then transmitted to the Supreme Court. The High Court, however, remanded the case to the IBP Board for further proceedings in order to give the parties the chance to fully present their case, noting that the Investigating Commissioner should have subpoenaed and examined the witnesses of the parties considering the gravity of the charge against Atty. Gacott. Atty. Gacott for his part filed a complaint for damages against the IBP Board before the RTC, claiming that the High Court's remand of the case to the IBP Board is an affirmation of the latter's arbitrary abuse of its investigatory power. The Supreme Court ruled that the Board of Governors of the Integrated Bar of the Philippines (IBP Board) cannot be held liable for damages for prematurely recommending the disbarment of a lawyer based solely on the position papers and affidavits of witnesses of the parties and without the benefit of an exhaustive hearing. The Court held that the complaint for damages filed by Atty. Glen C. Gacott against the IBP Board for the latter's recommendation of Atty. Gacott's disbarment without a hearing has no cause of action as the IBP Board merely exercised delegated powers to investigate the complaint against Atty. Gacott and submit their report and recommendation to the Court. Even though the Supreme Court had later remanded the disbarment case to the IBP so a full-blown hearing on the matter could be held, the Court ruled that the IBP Board cannot be charged for honest errors committed in the performance of its quasi-judicial function. The Court added that ruling otherwise would result in lower court judges whose acts the appellate courts have annulled on the ground of grave abuse of discretion would be open targets for damage suits. The Court also noted that the IBP Board prepared its report
and recommendation to the Court based on papers and documents Atty. Gacott himself presented without reservation for the resolution of the disbarment case against him. In a concurring opinion, Justice Presbitero J. Velasco, Jr. held that an exhaustive hearing is not necessary in disciplinary cases, including those for disbarment citing the Rules of Court and the Rules of Procedure of the Commission on Bar Discipline of the IBP which provide that the determination of whether or not a hearing is necessary is at the discretion of the IBP and its Investigating Commissioner. Cadiz, et al, v. Gacott, GR No. 178941, July 27, 2011 Rule 7.01 - A lawyer shall be answerable for knowingly making a false statement or suppressing a material fact in connection with his application for admission to the bar. Rule 7.02 - A lawyer shall not support the application for admission to the bar of any person known by him to be unqualified in respect to character, education, or other relevant attribute. Rule 7.03 - A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.
CANON 8 - A LAWYER SHALL CONDUCT HIMSELF WITH COURTESY, FAIRNESS AND CANDOR TOWARDS HIS PROFESSIONAL COLLEAGUES, AND SHALL AVOID HARASSING TACTICS AGAINST OPPOSING COUNSEL.
Rule 8.01 - A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper. Rule 8.02 - A lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer, however, it is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel.
CANON 9 - A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY, ASSIST IN THE UNAUTHORIZED PRACTICE OF LAW.
It has been established that Dela Rosa who is not a member of the Bar misrepresented herself as respondents collaborating counsel. There was also sufficient evidence to prove that respondent allowed Dela Rosa to illegally practice law, appear in court, and give legal assistance to respondents client. This is in violation of Canon 9 of the Code of Professional Responsibility which states that [a] lawyer shall not, directly or indirectly, assist in the unauthorized practice of law. The term practice of law implies customarily or habitually holding oneself out to the public as a lawyer for compensation as a source of livelihood or in consideration
of his services. Holding ones self out as a lawyer may be shown by acts indicative of that purpose, such as identifying oneself as attorney, appearing in court in representation of a client, or associating oneself as a partner of a law office for the general practice of law. Atty. Edita NoeLacsamana v. Atty. Yolando F. Busmente. A.C. No. 7269. November 23, 2011. Rule 9.01 - A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the bar in good standing. Rule 9.02 - A lawyer shall not divide or stipulate to divide a fee for legal services with persons not licensed to practice law, except: (a) Where there is a pre-existing agreement with a partner or associate that, upon the latter's death, money shall be paid over a reasonable period of time to his estate or to persons specified in the agreement; or (b) Where a lawyer undertakes to complete unfinished 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.
CHAPTER III. THE LAWYER AND THE COURTS
CANON 10 - A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT. Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of any in Court; nor shall he mislead, or allow the Court to be misled by any artifice. Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved. Rule 10.03 - A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice.
CANON 11 - A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS.
10
Law Professors; respect for courts. For the disposition of the Court are the submissions of 37 respondent law professors in response to the Resolution directing them to show cause why they should not be disciplined as members of the Bar for issuing a statement which alleged acts of plagiarism and misrepresentation in the Supreme Court. Even as lawyers passionately and vigorously propound their points of view they are bound by certain rules of conduct for the legal profession. This Court is certainly not claiming that it should be shielded from criticism. All the Court demands are the same respect and courtesy that one lawyer owes to another under established ethical standards. All lawyers, whether they are judges, court employees, professors or private practitioners, are officers of the Court and have voluntarily taken an oath, as an indispensable qualification for admission to the Bar, to conduct themselves with good fidelity towards the courts. There is no exemption from this sworn duty for law professors, regardless of their status in the academic community or the law school to which they belong. Re: Letter of the UP Law Faculty entitled Restoring Integrity: A statement by the Faculty of the University of the Philippines College of Law on the allegations of plagiarism and misrepresentation in the Supreme Court, A.M. No. 10-10-4-SC, March 8, 2011. A novel issue involved in the present controversy, for it has not been passed upon in any previous case before the Supreme Court, is the question of whether lawyers who are also law professors can invoke academic freedom as a defense in an administrative proceeding for intemperate statements tending to pressure the Court or influence the outcome of a case or degrade the courts. Applying by analogy the Courts past treatment of the free speech defense in other bar discipline cases, academic freedom cannot be successfully invoked by respondents in this case. The implicit ruling in jurisprudence is that the constitutional right to freedom of expression of members of the Bar may be circumscribed by their ethical duties as lawyers to give due respect to the courts and to uphold the publics faith in the legal profession and the justice system. The reason that freedom of expression may be so delimited in the case of lawyers applies with greater force to the academic freedom of law professors. It is not contested that respondent professors are, by law and jurisprudence, guaranteed academic freedom and indisputably, they are free to determine what they will teach their students and how they will teach. We must point out that there is nothing in the Show Cause Resolution that dictates upon respondents the subject matter they can teach and the manner of their instruction. Moreover, it is not inconsistent with the principle of academic freedom for the Court to subject lawyers who teach law to disciplinary action for contumacious conduct and speech, coupled with undue intervention in favor of a party in a pending case, without observing proper procedure, even if purportedly done in their capacity as teachers. Re: Letter of the UP Law Faculty entitled Restoring Integrity: A statement by the Faculty of the University of the Philippines College of Law on the allegations of plagiarism and misrepresentation in the Supreme Court, A.M. No. 10-10-4-SC, March 8, 2011.
11
Statement of UP Professors. While the statement was meant to reflect the educators opinion on the allegations of plagiarism against Justice Del Castillo, they treated such allegation not only as an established fact, but a truth. They expressed dissatisfaction over Justice Del Castillos explanation on how he cited the primary sources of the quoted portions and yet arrived at a contrary conclusion to those of the authors of the articles supposedly plagiarized. The statement bore certain remarks which raise concern for the Court. The first paragraph concludes with a reference to the decision in Vinuya v. Executive Secretary as a reprehensible act of dishonesty and misrepresentation by the Highest Court of the land. The authors also not only assumed that Justice Del Castillo committed plagiarism, they went further by directly accusing the Court of perpetrating extraordinary injustice by dismissing the petition of the comfort women in Vinuya v. Executive Secretary. They further attempt to educate this Court on how to go about the review of the case. The insult to the members of the Court was aggravated by imputations of deliberately delaying the resolution of the said case, its dismissal on the basis of polluted sources, the Courts alleged indifference to the cause of petitioners, as well as the supposed alarming lack of concern of the members of the Court for even the most basic values of decency and respect. The publication of a statement by the faculty of the UP College of Law regarding the allegations of plagiarism and misrepresentation in the Supreme Court was totally unnecessary, uncalled for and a rash act of misplaced vigilance. Of public knowledge is the ongoing investigation precisely to determine the truth of such allegations. More importantly, the motion for reconsideration of the decision alleged to contain plagiarized materials is still pending before the Court. We made it clear in the case of In re Kelly that any publication, pending a suit, reflecting upon the court, the jury, the parties, the officers of the court, the counsel with reference to the suit, or tending to influence the decision of the controversy, is contempt of court and is punishable. The UP Law faculty would fan the flames and invite resentment against a resolution that would not reverse the Vinuya decision. This runs contrary to their obligation as law professors and officers of the Court to be the first to uphold the dignity and authority of this Court, to which they owe fidelity according to the oath they have taken as attorneys, and not to promote distrust in the administration of justice. Re: Letter of the UP Law Faculty entitled Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court, A.M. No. 10-10-4-SC. October 19, 2010. Rule 11.01 - A lawyer shall appear in court properly attired. Rule 11.02 - A lawyer shall punctually appear at court hearings. Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts.
12
A lawyer shouted at the judge during court proceedings, threatening him Judge, I will file gross ignorance against you! I am not afraid of you, challenging the judge to fight, and, after being cited for contempt, even returned to the courtroom and disrupted the ongoing proceedings. The Supreme Court found the lawyer guilty of violating Rule 11.03, Canon 11 of the Code of Professional Responsibility and suspended him for a period of one (1) year. The Supreme Court held that Litigants and counsels, particularly the latter because of their position and avowed duty to the courts, cannot be allowed to publicly ridicule, demean and disrespect a judge, and the court that he represents. The court found that the lawyers insults were not only against the person, the position and the stature of Judge Baculi, but against the court as well whose proceedings were openly and flagrantly disrupted, and brought to disrepute by the respondent. The Court reminded the lawyer that it is the duty of a lawyer, as an officer of the court, to uphold the dignity and authority of the courts. Respect for the courts guarantees the stability of the judicial institution; without this guarantee, the institution would be resting on very shaky foundations. The Court stressed that [a] lawyer who insults a judge inside a courtroom completely disregards the latters role, stature and position in our justice system...tending to erode the public confidence in Judge Baculis competence and in his ability to decide cases. [A]n objecting or complaining lawyer cannot act in a manner that puts the courts in a bad light and bring the justice system into disrepute, added the Court. A.C. No. 8920, Baculi v. Battung, September 28, 2011 Rule 11.04 - A lawyer shall not attribute to a Judge motives not supported by the record or have no materiality to the case. Rule 11.05 - A lawyer shall submit grievances against a Judge to the proper authorities only.
CANON 12 - A LAWYER SHALL EXERT EVERY EFFORT AND CONSIDER IT HIS DUTY TO ASSIST IN THE SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE.
Rule 12.01 - A lawyer shall not appear for trial unless he has adequately prepared himself on the law and the facts of his case, the evidence he will adduce and the order of its proferrence. He should also be ready with the original documents for comparison with the copies. Rule 12.02 - A lawyer shall not file multiple actions arising from the same cause. A lawyer was suspended for 6 months for forum shopping. In March 2001, Jennifer Ebanen filed a Complaint for illegal dismissal against Servier Philippines, Incorporated (Servier) docketed as NLRC-NCR-Case No. 30-0301583-01, alleging constructive dismissal with prayer for reinstatement or
13
payment of separation pay, backwages, moral and exemplary damages. On July 5, 2002, the Labor Arbiter ruled in favor of Servier. It held that Ebanen voluntarily resigned from Servier and was, therefore, not illegally dismissed. Ebanen appealed at the National Labor Relations Commission (NLRC). On March 31, 2003, the NLRC-Third Division affirmed the Decision of the Labor Arbiter. Thus, Ebanen moved for reconsideration. However, the NLRC denied the same in a Resolution dated May 5, 2003. Unsatisfied, Ebanen filed a Petition for Certiorari before the Court of Appeals which was docketed as CA-G.R. SP No. 77968. In a Decision dated January 16, 2004, the Court of Appeals (CA) affirmed the findings of the NLRC that Ebanen voluntarily resigned and that there was no constructive dismissal. Ebanen moved anew for reconsideration, but was denied in a Resolution dated April 30, 2004. Unrelenting, Ebanen filed a Petition for Review before the Supreme Court. However, in a Resolution dated August 4, 2004, the Court found no reversible error on the part of the CA, thus, denied said petition. Ebanen filed a motion for reconsideration, but was denied with finality in a Resolution dated October 11, 2004. Ebanen filed a Motion for Leave to Admit Second Motion for Reconsideration of the Resolutions dated August 4, 2004 and October 11, 2004, respectively. On January 19, 2005, the Court denied her motion. Persistent, Ebanen filed a Motion to Admit a Third Motion for Reconsideration of the Resolution dated January 19, 2005. On April 20, 2005, the Court denied her motion for being a prohibited pleading and noted without action Ebanens third motion for reconsideration. On July 27, 2005, the Second Division of the Supreme Court noted without action Ebanens Motion for Leave to Admit Supplemental Third Motion for Reconsideration dated June 1, 2005, in view of the entry of judgment on February 17, 2005. On February 17, 2005, the Courts Resolution dated August 4, 2004 has already become final and executory; thus, a corresponding Entry of Judgment has been issued. However, despite said entry of judgment, Ebanen, thru her counsel, Atty. Relamida, filed a second complaint on August 5, 2005 for illegal dismissal based on the same cause of action of constructive dismissal against Servier, now docketed as NLRC-NCR Case No. 00-08-07222-05. Thus, on October 13, 2005, Servier, thru counsel, filed a letter-complaint addressed to the then Chief Justice Hilario Davide, Jr., praying that respondents be disciplinary sanctioned for violation of the rules on forum shopping and res judicata. The filing of another action concerning the same subject matter, in violation of the doctrine of res judicata, runs contrary to Canon 12 of the Code of Professional Responsibility, which requires a lawyer to exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. By his actuations, respondent also violated Rule 12.02 and Rule 12.04 of the Code, as well as a lawyers mandate "to delay no man for money or malice." The Court has, time and again, warned lawyers not to resort to forum shopping for this practice clogs the court dockets. Their primary duty is to assist the courts in the administration of justice. Any conduct which tends to delay, impede or obstruct the administration of justice contravenes such lawyers duty. This w e will not tolerate. Alonso and Lazatin v. Relamide, A.C. No. 8481, August 3, 2010 Rule 12.03 - A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting
14
the same or offering an explanation for his failure to do so. Rule 12.04 - A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse Court processes. Rule 12.05 - A lawyer shall refrain from talking to his witness during a break or recess in the trial, while the witness is still under examination. Rule 12.06 - A lawyer shall not knowingly assist a witness to misrepresent himself or to impersonate another. Rule 12.07 - A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him. Rule 12.08 - A lawyer shall avoid testifying in behalf of his client, except: (a) on formal matters, such as the mailing, authentication or custody of an instrument, and the like; or (b) on substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel.
CANON 13 - A LAWYER SHALL RELY UPON THE MERITS OF HIS CAUSE AND REFRAIN FROM ANY IMPROPRIETY WHICH TENDS TO INFLUENCE, OR GIVES THE APPEARANCE OF INFLUENCING THE COURT.
Rule 13.01 - A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with Judges. Rule 13.02 - A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party. Generally, it holds that newspaper publication of a lawyer as to pending or anticipated litigation may interfere with affair trial in the Trial court and otherwise prejudice the due administrative of justice. It seeks further and reminds a lawyer that if the extreme circumstances of a particular case justify a statement to the public, it is professional to make it anonymously. It is better to avoid any ex parte statement. Trial by publicity must be avoided. The use of media is inappropriate in order to influence the outcome of the case. In order to warrant a finding of prejudicial publicity, there must be an allegation and proof that the judges have been unduly influenced, no simply that they might be, by the barrage of publicity. In Cruz vs. Salva, while the provincial prosecutor has established a justification for his investigation of the case although the same is on appeal and pending consideration by the Court, however, the Court held that the prosecutor committed a grievous error and poor judgment when he allowed, even encouraged, the reinvestigation to be conducted with much fanfare, publicity and sensationalism. Such actuations of the
15
prosecutor constitute contempt of court punishable by public censure. On the other hand, once the litigation is concluded the judge who decide it is subject to the same criticism as any other public official because then his ruling becomes a public property and is thrown open to public consumption. In a concluded litigation, a lawyer enjoys wider latitude of comment on or criticism of the judges decisions or actuation. Thus, it has been held that a newspaper publication tending to impede, obstruct, embarrass or influence the court in administering the justice in a pending case constitutes criminal contempt, but the rule is otherwise after the litigation is ended. Rule 13.03 - A lawyer shall not brook or invite interference by another branch or agency of the government in the normal course of judicial proceedings. It is basic under the Rules of Court that when a case is already within the jurisdiction of a court, the lawyer should not cause or seek the interference of another agency of the government in the normal course of judicial proceedings. In Bumanlag vs. Bumanlag, a final word is called for on respondents statement in his Explanation inferring that he was led to file his petition with the President by the fact that his motions for reconsideration were only denied by the Clerk of Court without any comment whatsoe ver. As the Court has had the occasion to state in People vs. Catolico and earlier cases, this remark of respondent exposes his lack of appreciation or disregard of the time-honored usage of the Court that minute resolutions, summons and processes of the Court, upon being only duly adopted and recorded are transmitted to the interested parties by and upon the signature of the Clerk of Court who is duly authorized to do so. With the thousands of resolutions approved monthly by the Court, it would unduly tax the time and attention of the Chief Justice and members of the Court to the prejudice of the administration of justice if all such papers other than decisions, could be released only upon their own signatures. Thus, the Court held respondent liable and imposed him a reprimand for gross ignorance of the law and of the Constitution in having asked the President to set aside by decree the Courts decision which suspended him for two years from the practice of law. By usinf influence or inducing a judge to render favorable judgment, counsel betrays the whole legal profession. He reneges on his oath as an officer of the Court. When a client engages the services of a lawyer, counsel must: 1. Evaluate the merits of the case; 2. Require the client to be candid in the narration of facts; 3. Gather and review evidence to support the merits of the case; 4. Inform the client of the legal options available; 5. Give client a fair assessment of the consequences of filing the case; and 6. Never assure the client the victory of a case due to influence he may have upon the judge. Inappropriate acts of a lawyer giving an impression of influencing the court and will create an image of distrust in the court.
16
CHAPTER IV. THE LAWYER AND THE CLIENT
CANON 14 - A LAWYER SHALL NOT REFUSE HIS SERVICES TO THE NEEDY. The relationship between the lawyer and the client is one special trust and confidence, obligating the lawyer to exercise the utmost good faith and fairness in his relationship with the client. The lawyer-client relationship is premised on the Roman law concepts of locatio conductio operarum (contract of lease of services) where one person lets his services and another hires them without reference to the object of which the services are to be performed, wherein lawyers services may be compensated by honorarium of for hire, and mandato (contract of agency) wherein a friend on whom reliance could be placed makes a contract in his name, but gives up all that he gained by the contract to the person who requested him. SCOPE OF PRACTICE OF LAW The practice of law means activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. It is not confined to litigation, but encompasses all acts which are characteristic of the profession, such as giving notice or rendering any kind of service, which device or service requires the use in any degree of legal knowledge or skill. In the practice of his profession, a licensed attorney at law generally engages in three principal types of professional activity: legal advice and instructions to clients to inform them of their rights and obligations, preparation for clients of documents requiring knowledge of legal principles not possessed by ordinary layman, and appearance for clients before public tribunals which possess power and authority to determine rights of life, liberty, and property according to law, in order to assist in proper interpretation and enforcement of law. Rule 14.01 - A lawyer shall not decline to represent a person solely on account of the latter's race, sex, creed or status of life, or because of his own opinion regarding the guilt of said person. Consistent with each individuals absolute right to counsel which may be invoked at all times in civil or criminal cases as an extension of the fundamental right to due process, the lawyer cannot discriminate and decline representation solely due to a persons race, sex, creed or status of life, or due to the lawyers opinion of the persons guilt. As noted by the Supreme Court, even the most experienced lawyers get tangled in the web of procedure. To demand as much from ordinary citizens whose only compelle intrare is their sense of right would turn the legal system into an intimidating monstrosity where an individual may be stripped of his property rights not because he has no right to the property but because he does not know how to establish such right. Thus, a defense counsel cannot brand his own clients as the culprits, such discrimination amounting to rank unprofessionalism.
17
Rule 14.02 - A lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de officio or as amicus curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid. A lawyer who is appointed as counsel de oficio, amicus curiae, or who is requested to render free legal aid by the Integrated Bar of the Philippines, cannot decline the appointment or request, except for serious and sufficient cause. Particularly in criminal cases, courts appoint lawyers as counsel de oficio to give genuine meaning to the accuseds right to be heard through counsel. Otherwise, the accused could be reduced to being a mere victim of overzealous prosecutors, of the laws complexity or of his own ignorance or bewilderment. The Supreme Court purposely sets strict standards for exemption from court appointed or IBP-requested legal assistance. Such assistance should be more than just the presence of a lawyer in the courtroom or the mere propounding of standard questions and objections. The right to counsel assumes an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case, and his knowing the fundamental procedures, essential laws, and existing jurisprudence. Lawyers cannot be excused from the responsibility of efficient and truly decisive legal assistance ( and not a simple perfunctory representation), except for the most compelling and cogent reasons. A counsel de oficio is expected to do his utmost as an opportunity to assist in the proper dispensation of justice. Rule 14.01 and 14.02 are applicable only in criminal cases. In criminal cases, a lawyer cannot decline to represent an accused or respondent because in his opinion said person is guilty of the charge or charges filed against him. In representing the accused or respondent, where the lawyer has personal knowledge that the accused is guilty, the lawyermust only use means which are fair and honorable. Protection of the accused from the violation of his constitutional rights is one area where the accused needs a lawyer, whether innocent or guilty. Rule 14.01 is not applicable in civil cases because (c) to counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law. When may refusal of a counsel to act as counsel de oficio be justified on grounds aside from the reasons of health, extensive travel abroad, or similar reasons of urgency? Other justified grounds for refusal to act as a counsel de oficio are: a. Too many de oficio cases assigned to the lawyer 9 People vs. Daeng,49 SCRA 222); b. Conflict of Interest (Rule 14.03,CPR); c. Lawyer is not in a position to carry out the work effectively or competently (supra); d. Lawyer is prohibited from practicing law by reason of his public office which prohibits appearances in court; and
18
e. Lawyer is preoccupied with too many cases which will spell prejudice to the new client. Rule 14.03 - A lawyer may not refuse to accept representation of an indigent client except if: (a) he is not in a position to carry out the work effectively or competently; (b) he labors under a conflict of interest between him and the prospective client or between a present client and the prospective client. This Rule sets out two (2) exceptions to the general rule prohibiting a lawyer from refusing to represent an indigent: 1) when the lawyer is not in a position to carry out work effectively or competently; and (2) when the lawyer labors under a conflict of interest situation. A lawyer is expected to give adequate time, attention, and care to all of his cases. He must accept only as much as he can efficiently handle, otherwise his clients interests will suffer, since the legal profession demands from a lawyer the vigilance and attention expected of a good father of a family. Accordingly, if he is no longer in a position to carry out work effectively or competently, the lawyer can refuse representation of an indigent client. Since a client is entitled to an affective representation, the lawyer should recognize his lack of competence or incapacity to handle a particular task and the disservice he would do his client if he undertakes or continues to undertake the task entrusted to him. If that situation occurs, he should either decline to act or obtain his clients instruction to retain, consult or collaborate with another lawyer to avoid any untoward event detrimental to his clients cause. Rule 14.04 - A lawyer who accepts the cause of a person unable to pay his professional fees shall observe the same standard of conduct governing his relations with paying clients. This is my advice to new lawyers. Learn your trial technique from your de officio cases. Volunteer if you must, but get as much as you can when you are assigned de officio cases follow Rule 14.04. This is your preparation for the big paying cases that should come your way in time, because surely they will. The lawyer should not discriminate between his paying and indigent clients. All of his clients, rich or poor, are entitled to the same level of professionalism, dedication, diligence, skills, and competence. The lawyer is expected to his utmost to ensure that all his clients can avail of every remedy allowed by law, and that each and all of these remedies are timely asserted. Accepted of representation gratis et amore does not justify a lawyers failure to exercise due diligence in the protection of his clients interests. CANON 15 - A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS.
19
Considering the highly fiduciary, delicate, exacting, and confidential relationship between the lawyer and his client, a high standard of conduct is demanded from the lawyer, with the vigilance and attention expected of a good father of a family. The lawyers performance of his duty in prosecuting or defending his clients cause safeguards both the clients interests as well as the ends of justice by maintaining the communitys respect for the legal profession. The lawyers fiduciary duty is what places the law profession in a unique position of trust and confidence, and distinguishes it from any other calling. The lawyer must therefore conduct himself, especially in his dealings with his clients, with integrity in a manner that is beyond reproach. His relationship with his clients should be characterized by the highest degree of good faith and fairness. He should determine his conduct by acting in a manner that would promote public confidence in the integrity of the legal profession. Members of the Bar are expected to always live up to the standards embodied in the Code of Professional Responsibility as the relationship between an attorney and his client is highly fiduciary in nature and demands utmost fidelity and good faith. NEMESIO FLORAN and CARIDAD FLORAN, vs. ATTY. ROY PRULE EDIZA (October 19, 2011) Atty. Ediza violated this rule when he employed deceit in his dealings and transactions with his client when he received an amount of P125,463.38 for the titling of the remaining portion of the land, other expenses and attorneys fees despite of the several follow -ups. During the IBP conference, the Spouses Floran claimed that they had no knowledge that they executed such document in favor of Atty. Ediza. However, the Spouses Floran later discovered that one of the documents given by Atty. Ediza is a deed of sale for a one hectare land in the same property executed by Epal in favor of Atty. Ediza for a consideration of P2,000. When the Spouses Floran confronted Atty. Ediza, he initially denied the document but then later promised to tear and destroy it. Respondent asserted that the Deed of Sale signed by the Spouses Floran in his favor served as payment for the dismissal of the case he handled for the Spouses Floran. Atty. Ediza denied that the money he received was intended for the titling of the remaining portion of the land but such is his share relative to the sale of the subject property which was given to him in generosity for winning the case. Atty. Ediza claimed that the complaint against him stemmed from a case where he represented a certain Robert Sabuclalao for recovery of land. The land was being occupied by the Church of the Assembly of God where Nemesio Floran serves as pastor. It is clear from the records that Atty. Ediza deceived the Spouses Floran when he asked them to unknowingly sign a deed of sale transferring a portion of their land to Atty. Ediza. Atty. Ediza also did the same to Epal when he gave Caridad several documents for Epal to sign. Atty. Ediza made it appear that Epal conveyed her rights to the land to him and not to the Spouses Floran. Moreover, when the sale of the Spouses Florans land pushed through, Atty. Ediza received half of the amount from the proceeds given by the buyer and falsely misled the Spouses Floran into thinking that he will register the remaining portion of the land. Respondent played on the navet of the Spouses Floran to deprive them of their valued property. This is an unsavory behavior from a member of the legal profession. Aside from giving adequate attention, care and time to his clients case, a lawyer is also expected to be truthful, fair and
20
honest in protecting his clients rights. Once a lawyer fails in this duty, he is not true to his oath as a lawyer. Rule 15.01. - A lawyer, in conferring with a prospective client, shall ascertain as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client. From the moment that the lawyer is consulted by a prospective client, it is incumbent upon the lawyer to render preliminary conflict search. This may be done by, among others, examining the causes of action between the prospective client and the lawyers current clients. A conflict search will enable the lawyer to determine, in the first instance, if he is barred from accepting the representation through conflicts with his present clients or the lawyers own interest. The Canons of Professional Ethics likewise mandate that the lawyer must at the time of retainer, disclose to the client all the circumstances of his relations to the parties, and any interest in or connection with the controversy, which might influence the client in the selection of counsel. There are two types of Conflict of Interest, (1) Concurrent or Multiple Representation and (2) Sequential or Successive Representation in both cases there should be (1) written consent of al parties concerned; and (2) such consent must be given after full disclosure of the facts of all parties concerned. The consent must be informed. Necessarily, the lawyer must explain to the parties the nature and extent of the conflict and the parties must be made to understand all the possible adverse effects of the representation. 1. CONCURRENT OR MULTIPLE REPRESENTATION generally occurs when a lawyer represents clients whose objectives are adverse to each other, no matter how slight or remote such adverse interest may be. Our Supreme court has established the following tests to ascertain if concurrent or multiple representation amounts to a conflict of interest: a. Whether a lawyer is duty-bound to fight for an issue or claim in behalf of one client and, at the same time, to oppose that claim for the other client; b. Whether the acceptance of a new relation prevent the full discharge of the lawyers duty of undivided fidelity or loyalty to the client; c. Whether the acceptance of a new relation would invite suspicion of unfaithfulness or double-dealing in the performance of the lawyers duty of undivided fidelity and loyalty; d. Whether in the acceptance of a new relation, the lawyer would be called upon to use against client confidential information acquired through their connection. 2. SEQUENTIAL OR SUCCESSIVE REPRESENTATION involves representation by a law firm of a present client who may have an interest adverse to a prior or former client of the firm. Upon detecting the conflict of interest, the lawyer should immediately inform the prospective client to ensure that he would be able to engage the services of another lawyer, and thereby avoid
21
prejudice to his cause. 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. The foregoing disqualification rule also applies to prospective clients of a lawyer. Matters disclosed by a prospective client to a lawyer are protected by the rule on privileged communication even if the prospective client does not thereafter retain the lawyer or the latter declines the employment. The reason for this is to make the prospective client free to discuss whatever he wishes with the lawyer without fear that what he tells the lawyer will be divulged or used against him and for the lawyer to be equally free to obtain information from the prospective client. The client must also intend the communication to be confidential. A confidential communication refers to information transmitted by voluntary act of disclosure between attorney and client in confidence and by means which, so far as the client is aware, discloses the information to no third person other than one reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it was given. The legal advice must be sought from the attorney in his professional capacity. The communication made by a client to his attorney must not be intended for mere information, but for the purpose of seeking legal advice from his attorney as to his righ ts or obligations. If the client seeks an accounting service, or business or personal assistance, and not legal advice, the privilege does not attach to a communication disclosed for such purpose. The mantle of privileged communications extends to the partner, or other persons ( such as staff members) working with the lawyer in the same office. The privilege of attorney-client communications however, does not extend to information on contemplated or future crimes or fraudulent acts. What are covered are statements and communications regarding the commission of a crime already committed, 9 made by a party who committed it to a lawyer, consulted as such) and not communications having to do with the clients contemplated criminal acts, or in aid or furtherance thereof. The Supreme Court found no merit in petitioners assertion that Atty. Binamira gravely breached and abused the rule on privileged communication under the Rules of Court and the Code of Professional Responsibility of Lawyers when he represented [respondent] Helen in the present case. Notably, this issue was never raised before the labor tribunals and was raised for the first time only on appeal. Moreover, records show that although petitioners previously employed Atty. Binamira to manage several businesses, there is no showing that they likewise engaged his professional services as a lawyer. Likewise, at the time the instant complaint was filed, Atty. Binamira was no longer under the employ of petitioners. Lambert Pawnbrokers and Jewelry Corporation and Lambert Lim vs. Helen Binamira, G.R. No. 170464. July 12, 2010.
22
Rule 15.03. - A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts. The only exception provided by the Code of Professional Responsibility to the prohibition against representation of conflicting interests in the informed written consent of all parties concerned. Without the informed written consent of all parties concerned, the mere termination of the lawyer-client relationship is not sufficient for the lawyer to subsequently represent an interest adverse to the (terminated) client. Even if if there is no other lawyer available to represent prosp ective client, the lawyer must still obtain the prior informed written consent of all parties before agreeing to undertake the representation. A lawyer drafted a demand letter on behalf of complainant in connection with the dishonored checks issued by Ms. Koa. In the ensuing criminal cases, the lawyer filed a Motion for Consolidation on behalf of Ms. Koa and appeared at the preliminary investigation hearing as Ms. Koas counsel. He argued that no lawyer-client relationship existed between him and complainant because there was no professional fee paid for the services he rendered. Moreover, he further argued that he drafted the demand letter only as a personal favor to the complainant who is a close friend. The Supreme Court held that a lawyer-client relationship can exist notwithstanding the close friendship between complainant and respondent-lawyer. The relationship was established the moment complainant sought legal advice from the lawyer regarding the dishonored checks. By drafting the demand letter, he further affirmed such relationship. The fact that the demand letter was not utilized in the criminal complaint filed and that the lawyer was not eventually engaged by complainant to represent her in the criminal cases is of no moment. Likewise, the non-payment of professional fee will not exculpate the lawyer from liability. Absence of monetary consideration does not exempt lawyers from complying with the prohibition against pursuing cases with conflicting interests. The prohibition attaches from the moment the attorney-client relationship is established and extends beyond the duration of the professional relationship. Lydia Castro-Justo v. Atty. Rodolfo Galing. A.C. No. 6174. November 16, 2011. Rule 15.04. - A lawyer may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in settling disputes. Rule 15.05. - A lawyer when advising his client shall give a candid and honest opinion on the merits and probable results of the client's case, neither overstating nor understating the prospects of the case. This Rule requires that the lawyer must give his client his candid and honest opinion on the merit or lack of merit of the case, without overstating or understating his evaluation. In order to ensure that the client is properly informed of all legal remedies and avenues for redress
23
available to him, the lawyer must provide the client with an accurate assessment of the prospects of the case. This rule assists the client to decide on the best possible course of action, based on his lawyers informed evaluation of the merits of his case. It is the lawyers obligation to know whether a case has som e prospect for success, and to accurately convey such prospects to his client. If, after going through and studying all of the clients papers and documents, the lawyers finds that this clients cause is defenseless, then it is his bounden duty to advise the latter to acquiesce and submit, rather than to traverse the incontrovertible. Rule 15.06. - A lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body. The lawyer must rely on the merits of his case, instead of improperly or illicitly banking on his relationship with a member of the bench or any public official, which tends to influence or gives the appearance of influencing the Court. It is unprofessional and dishonorable, to say the least, to misuse a public office to enhance a lawyers prestige. Public confidence in law and lawyers may be eroded by such reprehensible and improper conduct. Rule 15.07. - A lawyer shall impress upon his client compliance with the laws and the principles of fairness. In taking his oath, the lawyer becomes a guardian of truth and the rule of law, and an indispensable instrument in the fair and impartial administration of justice. The layer should therefore act with honesty and integrity in a manner beyond reproach, in order to promote the publics faith in the legal profession. In the extension of this legal duty, the lawyer should impress upon his client compliance with the laws and the principles of fairness. The client cannot dictate to the lawyer the procedure for handling the case. The lawyer is not a gun for hire and must employ only fair and honest means to obtain his clients objectives. Rule 15.08. - A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity. A lawyer is not barred from engaging in other professions or occupations. To obviate confusion of interests and obligations between the lawyer and his client, however, the lawyer must clearly delineate to the client his different roles and the capacity in which he is acting. This helps guarantee that the lawyer would protect his clients interests over his own personal interests. A further reason for the requirement of previous clarification to the client is that certain ethical considerations operative in one profession may not be so in the other. For the clients protection and in the interest of transparency and accountability, the lawyer must make clear what his obligations are in relation to the various functions or roles he is fulfilling in relation to his dealings with the client.
CANON 16 - A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES
24
OF HIS CLIENT THAT MAY COME INTO HIS PROFESSION. Rule 16.01 - A lawyer shall account for all money or property collected or received for or from the client. Moneys collected by the lawyer on a judgment favorable to his client constitute trust funds and should be immediately paid over to the client. While it is true that Rule 138, Section 37 of the Rules of Court grants the lawyer alien upon the funds, documents and papers of his client which have lawfully come into his possession, such that he may retain the same until his lawful fees and disbursements have been paid, and apply such funds to the satisfaction thereof, the lawyer still has the responsibility to promptly account to his client for such moneys received. Failure to do so constitutes professional misconduct. The lawyer is not entitled to unilaterally appropriate any funds, moneys, or properties of his client by the mere fact that the client owes him attorneys fees. He must still prove the existence of his lien and pursue the necessary legal remedies to recover his fees. The lawyers failure to turn over such funds, moneys, or properties to the client despite the latters demands gives rise to the presumption that the lawyer had converted the money for his personal use and benefit. Money of the client or collected for the client or other trust property coming into the possession of the lawyer should be reported and accounted for promptly and should not under any circumstances be commingled with his own or be used by him. The lawyers admission of his use of a client funds for his personal use constitutes substantial evidence of malpractice. When a lawyer collects or receives money from his client for a particular purpose ( such as filing fees, registration fees, transportation and office expenses), he must render an accounting to the client showing that the money was spent for the intended purpose. If the lawyer does not use the money for the intended purpose, the lawyer must immediately return the money to the client. A lawyers act of obtaining money from his clients under the respective pretexts that the amount would be deposited in court and that he would prepare and file the memorandum for them created a responsibility to account for and to use the amounts in accordance with the particular purposes intended. For him to deposit the amount in his personal account without the consent of the clients and to fail to file the memorandum and not return the money upon demand, constituted a serious breach of his fiduciary duties as their attorney. He reneged on his duty to render an accounting to his clients showing that he had spent the amounts for the particular purposes intended. He was thereby presumed to have misappropriated the moneys for his own use to the prejudice of his clients and in violation of the clients trust reposed in him. He could not escape liability, for upon failing to use the moneys for the purposes intended, he should have immediately returned the moneys to his clients. His plain abuse of the confidence reposed in him by his clients rendered him liable for violation of Canon 16, particularly Rule 16.01 and Canon 17, all of the Code of Professional Responsibility. His acts and actuations constituted a gross violation of general morality and of professional ethics
25
that impairs public confidence in the legal profession and deserves punishment. Erlinda R. Tarog v. Atty. Romulo L. Ricafort, A.C. No. 8253, March 15, 2011. Atty. Solidon vs. Atty. Macalalad (Feb. 24, 2010) Atty. Macalalad was introduced by Delia to Atty. Solidon and thereafter hired by the latter regarding the judicial titling of a parcel of land of his relatives. Respondent Macalalad then accepted the case to be completed within eight (8) months for a consideration of P80,000. He received P50,000 as an initial payment and with an agreement that the balance shall be paid upon the delivery of title of the subject property. Six (6) months after paying the initial fee, Atty. Solidon tried to follow up the status of the case (thru text messages, phone calls thru acquaintances and relatives further, thru a letter sent by courier)but respondent Macalalad never replied. Delia was able to contact Respondentand informed her that everything was on process. However after lapse of one year, the petition has not yet filed. Hence Atty. Solidon filed a disbarment case against Respondent for failure to account all money collected and to inform his client on the status of the case. On the other hand, Atty. Macalalad posited that the petition has not yet filed due to the failure of Atty. Solidon to furnish him the needed documentary evidence. The mere failure of the lawyer to perform the obligations due to the client is considered per se a violation. The circumstance that the client was also at fault does not exonerate a lawyer from liability for his negligence in handling a case. All court rulings drive home the fiduciary nature of a lawyers duty to his client once an engagement for legal services is accepted. A lawyer so engaged to represent a client bears the responsibility of protecting the latters interest with utmost diligence. The lawyer bears the duty to serve his client with competence and diligence, and to exert his best efforts to protect, within the bounds of the law, the interest of his or her client. Atty. Macalalad did not immediately account for and promptly return the money he received from Atty. Solidon even after he failed to render any legal service within the contracted time of the engagement. Atty. Macalalad is suspended for six (6) months And ordered to return the P50,000 with 12% interest until the full amount is returned. Hector Trenas vs. People of the Philippines (January 25, 2012) In this case, appellant received in trust from Elizabeth Luciaja a sum of money given by her aunt Margarita Alocilja with the express obligation on the part of the accused-appellant to use said amount for the expenses and fees in connection with the purchase of a parcel of land, but said accused-appellant misappropriated and converted to his own benefit the amount. When a lawyer collects or receives money from his client for a particular purpose (such as for filing fees, registration fees, transportation and office expenses), he should promptly account to the client how the money was spent. If he does not use the money for its intended purpose, he must immediately return it to the client. His failure either to render an accounting or to return the money (if the intended purpose of the money does not materialize) constitutes a blatant disregard of Rule 16.01 of the Code of Professional Responsibility.
26
MARITES E. FREEMAN, vs. ATTY. ZENAIDA P. REYES, (November 15, 2011) When a lawyer receives money from the client for a particular purpose, the lawyer is bound to render an accounting to the client showing that the money was spent for a particular purpose. And if he does not use the money for the intended purpose, the lawyer must immediately return the money to his client. In the present case, the cash/check voucher and the temporary receipts issued by respondent, with the letterhead of her law firm, Z.P. Reyes Law Office, indubitably showed that she received the total amount of P167,000.00 from the complainant, in connection with the handling of the latter's case. Respondent admitted having received money from the complainant, but claimed that the total amount of P120,000.00 she received was in accordance with their agreement. Nowhere was it shown that respondent rendered an accounting or, at least, apprised the complainant of the actual expenses incurred. This leaves a quandary as to the discrepancy in the actual amount that respondent should receive, supposedly pursuant to an agreement of engaging respondent to be her counsel, as there was absence of a formal contract of legal services. Rule 16.02 - A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him. This rule protects the clients interests and ensures that the lawyer prudently maintains a system for distinguishing, monitoring and accounting for his own funds, and all of his clients funds that are in his possession. Rule 16.03 - A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court. While the lawyer may charge a lien over a money judgment pursuant to Rule 138, Section 37 of the Rules of Court, the lawyer must give notice to his client that he is charging such lien. Thereafter, the lawyer should file the necessary petition with the Court, as an incident in the main action in which his services were rendered, and in which action something is due his client from which the fee is to be paid. He cannot unilaterally appropriate the funds. Barcenas vs. Atty. Alvero ( April 23, 2010) RULE 16.01-Rule 16.03 were violated. The claim of the lawyer that there existed no attorney-client relationship between him and Barcenas cannot be countenanced since case law has it that an attorney may be removed, or otherwise disciplined, not only for malpractice and dishonesty in the profession, but also for gross misconduct not connected with his professional duties, making him unfit for the office and unworthy of the privileges which his license and the law confer upon him. The Respondents failure to account for and return the money when due and upon demand violated the trust
27
reposed in him, demonstrated his lack of integrity and moral soundness, and warranted the imposition of disciplinary action. It gave rise to the presumption that he converted the money for his own use, and this act constituted a gross violation of professional ethics and a betrayal of public confidence in the legal profession. Rule 16.04 - A lawyer shall not borrow money from his client unless the client's interests are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client. Since the lawyer is in a unique position of ascendancy as to easily influence his client, the lawyer should not borrow from or lend to his client except under strictly circumscribed conditions. Unless the clients interests are fully protected by the nature of the case or independent advice, a lawyer cannot borrow money from his client. The prohibition is intended to protect the client, since it presumes that the client is disadvantaged by the lawyers ability to use all the legal maneuverings to renege on the obligation. Top avoid acquiring an interest in the litigation, the lawyer should not lend money to his client, except in the interest of justice and to advance necessary expenses in a legal matter he is handling for the client.
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. Fidelity to the cause of his client is one of the lawyers foremost duties in the lawyer-client relationship. The trust and confidence reposed in the lawyer carries corollary obligations in serving his client: 1) with competence and diligence, and champion the latters cause with wholehearted fidelity, care and devotion; 2) warm zeal in the maintenance and defense of his clients rights; 3) and the exertion of his utmost learning and ability to the end that nothing be taken or withheld from his client, save by the rules of law, legally applied, where the client avails of 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. Accordingly, practicing lawyers may accept only as many cases as they can efficiently handle. Otherwise, their clients would be prejudiced. Once lawyers agree to handle a case, they should undertake the task with dedication and care. If they do any less, then they fail their lawyers oath. The lawyer should not undertake a legal service that he is not qualified to render, nor should a lawyer handle any legal matter without adequate preparation. The lawyers privilege to practice law carries with it the correlative duties not only to the client but also to the court, to the bar and to the public. The lawyers performance of his duties not only protects the
28
interest of his client; he also serves the ends of justice, does honor to the bar, and helps maintain the respect of the community to the legal profession. Lawyers cannot be allowed to exploit their profession for the purpose of exacting vengeance or as a tool for instigating hostility against any person- most especially against a client of former client. Spouses Aranda v. Atty. Elayda (December 15, 2010) Atty. Emmanuel F. Elayda was charged by the spouses Aranda, their former counsel, with gross negligence or gross misconduct in handling their case. The spouses Arandaalleged in their complaint that Atty. Elayda was sorely inadequate, as shown by his failure to follow elementary norms of civil procedure and evidence. Atty. Elayda was remiss in his duties and responsibilities as a member of the legal profession. His conduct shows that he not only failed to exercise due diligence in handling his clients case but in fact abandoned his clients cause. He proved himself unworthy of the trust reposed on him by his helpless clients. Moreover, Atty. Elayda owed fealty, not only to his clients, but also to the Court of which he is an officer.
CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE. The lawyers competence and diligence presupposes that the lawyer is familiar with the rudiments of law and procedure and anyone who acquires his service is entitled to not just competent service, but also whole-hearted devotion to his clients cause. The lawyer should inquire, from time to time, and whenever necessary, about the status of handled cases, as well as motions filed for a client. Upon the failure to do so, both counsel and client cannot be heard to complain that the latters right to due process was violated. Diligence is the attention and care required of a person in a given situation and is the opposite of negligence. The practice of law does not require extraordinary diligence (exactissima diligentia) or that extreme measure of care and caution which persons of unusual prudence and circumspection use for securing and preserving their rights. All that is required is ordinary diligence (diligentia) or that degree of vigilance expected of a bonus pater familias. The negligence and mistakes of counsel are binding on the client. Petitioner cannot simply harp on the mistakes and negligence of his lawyer allegedly beset with personal problems and emotional depression. There are exceptions to this rule, such as when the reckless or gross negligence of counsel deprives the client of due process of law, or when the application of the general rule results in the outright deprivation of ones property or liberty through a technicality. However, in this case, the Supreme Court found no reason to exempt petitioner from the general rule. The admitted inability of his counsel to attend fully and ably to the prosecution of his appeal and other sorts of excuses should have prompted petitioner to be more vigilant in protecting his rights and replace said counsel with a more competent lawyer. Instead, petitioner
29
continued to allow his counsel to represent him on appeal and even up to this Court, apparently in the hope of moving this Court with a fervent plea for relaxation of the rules for reason of petitioners age and medical condition. Verily, diligence is required not only from lawyers but also from their clients. Gregorio Dimarucot y Garcia vs.. People of the Philippines, G.R. No. 183975,September 20, 2010. Considering the initial 15-day extension granted by the CA and the injunction under Sec. 4, Rule 43 of the 1997 Rules of Civil Procedure against further extensions except for the most compelling reason, it was clearly inexcusable for petitioner to expediently plead its counsels heavy workload as ground for seeking an additional extension of 10 days within which to file its petition for review. To our mind, petitioner would do well to remember that, rather than the low gate to which parties are unreasonably required to stoop, procedural rules are designed for the orderly conduct of proceedings and expeditious settlement of cases in the courts of law. Like all rules, they are required to be followed and utter disregard of the same cannot be expediently rationalized by harping on the policy of liberal construction which was never intended as an unfettered license to disregard the letter of the law or, for that matter, a convenient excuse to substitute substantial compliance for regular adherence thereto. When it comes to compliance with time rules, the Court cannot afford inexcusable delay. J. Tiosejo Investment Corporation vs.. Sps. Benjamin and Eleanor Ang, G.R. No. 174149, September 8, 2010. Rules 18.01 - A lawyer shall not undertake a legal service which he knows or should know that he is not qualified to render. However, he may render such service if, with the consent of his client, he can obtain as collaborating counsel a lawyer who is competent on the matter. The lawyers acceptance of a case is an implied representation that he possesses the requisite academic learning, skill and ability to handle the case. A license to practice law is a guarantee by the courts to the public that the licensee possesses sufficient skill, knowledge and diligence to manage their cases. The lawyer should therefore be well aware of his abilities and qualifications, and candidly inform the client if he is not qualified to render the requested legal service. Should the lawyer render the requested legal service as collaborating counsel, he is still obligated to monitor the progress of the case and cannot rely on the courts to appraise him of the developments in his case and warn him against any possible procedural blunder. The negligence of collaborating counsel can still bind the client. In Phividec Industrial Authority v. Capitol Steel Corporation, the Supreme Court listed three (3) indispensable conditions before a GOCC can hire a private lawyer: (1) private counsel can only be hired in exceptional cases; (2) the GOCC must first secure the written conformity and acquiescence of the Solicitor General or the Government Corporate Counsel, as the case may be; and (3) the written concurrence of the COA must also be secured. Failure to comply with all three conditions would constitute
30
appearance without authority. A lawyer appearing after his authority as counsel had expired is also appearance without authority. Rey Vargas, et al. vs. Atty. Michael Ignes, et al., A.C. No. 8096, July 5, 2010. A private lawyer may be employed by a Local Government Unit (LGU) subject to the following conditions and requisites. Pursuant to Section 444(b)(1)(vi) of the Local Government Code, the municipal mayor is required to secure the prior authorization of the Sangguniang Bayan before entering into a contract on behalf of the municipality. In the instant case, the Sangguniang Bayan of Tiwi unanimously passed Resolution No. 15-92 authorizing Mayor Corral to hire a lawyer of her choice to represent the interest of Tiwi in the execution of this Courts Decision in National Power Corporation v. Province of Albay. The abovequoted authority necessarily carried with it the power to negotiate, execute and sign on behalf of Tiwi the Contract of Legal Services. Municipality of Tiwi, represented by Hon. Mayor Jaime C. Villanueva and Sangguniang Bayan of Tiwi Vs. Antonio B. Betito, G.R. No. 171873, July 9, 2010. Rule 18.02 - A lawyer shall not handle any legal matter without adequate preparation. Considering that the lawyers actions or omissions (malfeasance or nonfeasance) are binding on the client, the lawyer should adequately prepare in handling any legal matter. The clients inability ( or refusal0 to provide the lawyer with documents relevant to the case does not exempt the lawyer from the duty to adequately prepare and undertake the necessary legal action, especially where the documents from part of public records which the lawyer himself could obtain. Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. Negligence in failing to file the necessary pleading 9 such as a position pare in a labor case), which results in a dismissal of the case due to failure to prosecute, cannot be excused due to difficulties in schedule, workload, or physical condition. If the lawyer cannot make a timely filing, he should inform his client so that he would not be left in the dark as to the mode and manner in which his/her interest are being defended. The lawyer should take immediate steps to protect his clients interest. The passage of time is not an excuse, since a lawyer who undertakes to conduct an action impliedly stipulates to carry it to its conclusion.. It is the lawyers duty to see to his cases through until properly completed and not abandon or neglect them in midstream. Respondent lawyers were engaged to represent complainant and his son in a civil case for forcible entry and damages. However, respondents failed to file an answer within the 10-day period required by the summons and the Rules of Court. Respondents claimed that, to their mind, the civil case was actually for possession, notwithstanding that its title is for forcible entry, and that they mistakenly assumed that the court would first issue an order stating that the case falls under the rules on
31
summary procedure before requiring their clients to answer. They further claimed that when no such order was issued by the court, they again incorrectly assumed that the regular rules of procedure will apply and that they have fifteen days to answer. All these, without seeking a clarification from the court or ascertaining exactly when the answer should be filed and despite the summons issued and served stating a ten day period to file an answer. The Supreme Court did not find respondents defenses acceptable as it betrayed a lack of necessary competence and diligence. The respondents had in fact been negligent, or worse, had failed to exercise the required competence and diligence in filing the answer to the complaint. Pursuant to Rule 18.03 of the Code of Professional Responsibility, a lawyer is expected to be acquainted with the rudiments of law and legal procedure, and a client who deals with him has the right to expect not just a good amount of professional learning and competence but also a whole-hearted fealty to the clients cause. Rogelio F. Estavillo v. Attys. Gemmo G. Guillermo and Erme S. Labayog. A.C. No. 6899. November 16, 2011. Milla vs. People of the Philippines (January 25, 2012) Cresencio Milla represented himself as a real estate developer in engaged in selling business properties in Makati. He was charge of two counts of estafa for through falsification of public documents. Milla argues that the negligence of his former counsel, Atty. Mendoza deprived him of due process. He states that after the prosecution had rested its case, Atty. Mendoza filed a Demurrer to Evidence, and that the former was never advised by the latter of the demurrer. Thus, Milla was purportedly surprised to discover that the trial court had already rendered judgment finding him guilty, and that it had issued a warrant for his arrest. Atty. Mendoza filed an Omnibus Motion for Leave to File Motion for New Trial, which Milla claims to have been denied by the trial court for being an inappropriate remedy, thus, demonstrating his counsels negligence. The general rule is that the mistake of a counsel binds the client, and it is only in instances wherein the negligence is so gross or palpable that courts must step in to grant relief to the aggrieved client. In this case, Milla was able to file a Demurrer to Evidence, and upon the trial courts denial thereof, was allowed to present evidence. Because of his failure to do so, the trial court was justified in considering that he had waived his right thereto. Nevertheless, the trial court still allowed him to submit a memorandum in the interest of justice. Further, contrary to his assertion that trial court denied the Motion to Recall Warrant of Arrest thereafter filed by his former counsel, a reading of the 2 August 2007 Order of the trial court reveals that it partially denied the Omnibus Motion for New Trial and Recall of Warrant of Arrest, but granted the Motion for Leave of Court to Avail of Remedies under the Rules of Court, allowing him to file an appeal and lifting his warrant of arrest. Thus, it cannot be said that the mistake and negligence of his former counsel were so gross and palpable to have deprived him of due process. Rule 18.04 - A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client's request for information.
32
From the time that the lawyer accepts his clients cause, the client has an enforceable right to be updated on the developments and status of the case. The layer is obliged to respond within a reasonable time to a clients request for information. A client is entitled to the fullest disclosure of the mode or manner by which that clients interest is defended or why certain steps are taken or omitted. A lawyer who repeatedly fails to answer the inquiries or communications of a client violates the rules of professional courtesy and neglects the clients interests. A lawyers inaction despite repeated follow-u0ps by his client, refusing to return his clients files, and betraying a caval ier attitude and appalling indifference to his clients cause, violates Rule 18.04 A complaint for disciplinary action was filed against a lawyer due to his failure to reconstitute or turn over to his client the records of the case in his possession. The Code of Professional Responsibility mandates lawyers to serve their clients with competence and diligence. Rule 18.03 states that a lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. Rule 18.04 states that a lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the clients request for information. The lawyer breached these duties when he failed to reconstitute or turn over the records of the case to his client. His negligence manifests lack of competence and diligence required of every lawyer. His failure to comply with the request of his client was a gross betrayal of his fiduciary duty and a breach of the trust reposed upon him by his client. The lawyers sentiments against the complainant are not a valid reason for him to renege on his obligation as a lawyer. The moment he agreed to handle the case, he was bound to give it his utmost attention, skill and competence. Public interest requires that he exert his best efforts and all his learning and ability in defense of his clients cause. Those who perform that duty with diligence and candor not only safeguard the interests of the client, but also serve the ends of justice. They do honor to the bar and help maintain the communitys respect for the legal profession. Patricio Gone v. Atty. Macario Ga, A.C. No. 7771, April 6, 2011. The lawyer failed to inform his clients of the dates of hearing and the adverse decision against them, which eventually became final and executory as no appeal was filed therefrom, to the prejudice of his clients. A lawyer is duty bound to uphold and safeguard the interests of his clients. He should be conscientious, competent and diligent in handling his clients cases. He should give adequate attention, care, and time to all the cases he is handling. As the petitioners counsel, he is expected to monitor the progress of said spouses case and is obligated to exert all efforts to present every remedy or defense authorized by law to protect the cause espoused by the petitioners. The lawyer is guilty of gross negligence. Spouses Virgilio and Angelina Aranda vs. Atty. Emmanuel F. Elayda, A.C. No. 7907. December 15, 2010
CANON 19 - A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE
33
BOUNDS OF THE LAW. As officers of the court, lawyers should only encourage respect and observance for law. 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. Canon 19 of the Code provides that a lawyer shall represent his client with zeal within the bounds of the law. For this reason, Rule 15.07 of the Code requires a lawyer to impress upon his client compliance with the law and principles of fairness. A lawyer must employ only fair and honest means to attain the lawful objectives of his client. It is his duty to counsel his clients to use peaceful and lawful methods in seeking justice and refrain from doing an intentional wrong to their adversaries. Rural Bank of Calape, Inc. (RBCI), Bohol vs. Atty. James Benedict Florido, A.C. No. 5736, June 18, 2010. 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. It is an unethical for lawyer to offer monetary rewards to anyone who could give him information against a party so that he could have leverage against all actions involving such party. The lawyers duty to his client does not mean freedom to set up false or fraudulent claims especially with respect to provisions of law or administrative rules and that while lawyers are bound to exert utmost legal skill in prosecuting their clients cause or defending it, their duty, first and foremost, is to the administration of justice. The office of attorney does not permit, much less demand, to support a clients case, violation of law or otherwise, fraud or chicanery. A lawyer must obey his own conscience and not that his client. Rule 19.02 - A lawyer who has received information that his client has, in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he shall terminate the relationship with such client in accordance with the Rules of Court. Considering that law is an exacting goddess demanding of her votaries not nly intellectual but also moral discipline, it is the lawyers duty to immediately call his clients attention to the latters fraudulent representation, and to ask the client to rectify the fraudulent representation. If the client refuses, the layer should terminate the relationship. It is not within the profession of a lawyer to advise a client as to how he may commit a crime as a lawyer is not a gun for hire. Rule 19.03 - A lawyer shall not allow his client to dictate the procedure in handling the case. The lawyer, and not the client, is assumed to have knowledge of laws and Rules of procedure. The procedure in handling a case therefore
34
falls within the lawyers control and supervision. To properly protect the clients own interest, the client should not dictate the procedure in handling the case. The lawyer cannot excuse his negligence by asserting that his client tried to manipulate the case. The lawyer cannot entirely depend on the information his client gave or the time his client wished to give them. The lawyer should take more control over handling the case. Where the client is based overseas, the lawyer should with more reason, have moved to secure all the legal means available to him either to continue representing his client effectively or to make the necessary manifestation in court, with the clients conformity, that he was withdrawing as counsel.
CANON 20 - A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE FEES. Public policy forbids a lawyer from financing litigation, otherwise known as entering into champertous contracts where the lawyer agrees to pay the expenses of the proceedings to enforce his clients rights. Although a lawyer may in good faith, advance the expenses of litigation, the same should still be subject to the clients reimbursement. The lawyer and his client can execute a written contract for professional services even after the termination of a case as long as it is based on a previous agreement on contingent fees by the parties concerned, and as long as the said contract does not contain stipulations which are contrary to law, good morals, good customs, public policy or public order. An example of a contingent fee contract which is contrary to public policy and public order is where a lawyer gets as attorneys fees the entire property involved in the litigation, since it is unconscionable for the victor in litigation to lose everything he won to the fees of his own lawyer. Another example of shocking unconscionable greed is a lawyers demand for P 50 million on top of the generous sums and perks already given. Such behavior gives lawyering a bad name in the minds of some people. The vernacular has a word for it: nagsasamantala. The practice of law is a decent profession and not a money-making trade. Compensation should be but a mere incident. The Supreme Court rejected a law firms claim of attorneys fees based on mistaken interpretation. In denying the claim of the law firm for an assessment of its attorney's fees to be computed at twenty percent of all recoveries made by the law firm's former client in a foreclosure case the latter had won, the Supreme Court found that the law firm based its claim on a statement the law firm took out of context in the Court's decision in GR No. 90983, Law Firm of Raymundo A. Armovit v. CA, dated September 27, 1991. In that decision, the Supreme Court ruled that BCBI was held liable to pay the Armovit Law Firm a total amount of Php552,000.00 or 20% of the Php2,760,000.00 BCBI received as rental payments from the Government Service Insurance System (GSIS), the opposing party in the foreclosure case where the Armovit Law Firm had represented BCBI. As BCBI had
35
already paid the law firm Php300,000.00 prior to the September 1991 decision, the Court ordered BCBI to pay Armovit law firm the balance of P252,000.00. The Court held that while the body of the same decision stated that the Court did not find Atty. Armovit's claim for twenty percent of all recoveries to be unreasonable, it stressed that the statement is premised on the interpretation that Atty. Armovit's claim is only for an additional P252,000.00 in attorney's fees. Thus it specifically ordered in the dispositive portion the payment of Php252,000.00 in attorney's fees, nothing more, nothing less. The Supreme Court held that in cases of conflict between the dispositive portion or fallo of a decision and the opinion of the court contained in the text or body of judgment, the former prevails over the latter. The only exception to this rule is where the inevitable conclusion from the body of the decision is so clear as to show that there was a mistake in the dispositive portion. In this case, however, the Court's statement that a claim for twenty percent of all recoveries is not unreasonable is not an order that can be the subject of execution. Neither can it be held from the body of the decision that there was an inevitable conclusion clearly showing a mistake in the dispositive portion. The Court thus stressed that mere pronouncements in bodies of decision may not be the subject of execution as random statements can easily be taken out of context and are susceptible to different interpretations, especially when not enshrined in a clear and definite order. Law Firm of Raymundo A. Armovit v. CA., GR No. 154559, October 5, 2011 Rule 20.01 - A lawyer shall be guided by the following factors in determining his fees: (a) the time spent and the extent of the service rendered or required; (b) the novelty and difficulty of the questions involved; (c) The importance of the subject matter; (d) The skill demanded; (e) The probability of losing other employment as a result of acceptance of the proffered case; (f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs; (g) The amount involved in the controversy and the benefits resulting to the client from the service; (h) The contingency or certainty of compensation; (i) The character of the employment, whether occasional or established; and (j) The professional standing of the lawyer. Where there is no contract on the lawyers professional fees, however, compensation will be judicially determined on Quantum meruitmeaning as much as he deserves- is used as basis for determining a lawyers professional fees in the absence of a contract. Lawyers must be able to show that they are entitled to reasonable compensation for their
36
efforts in pursuing their clients case, taking into account certain factors in fixing the amount of legal fees/ The principle of quantum meruit applies if a lawyer is employed without a price agreed upon for his services, in which case he would be entitled to receive what he merits for his services, as much as he has earned. A judicial determination of all the factors enumerated in Rule 20.01 on the reasonableness of a lawyers fees requires nothing less than a full-blown trial, and the consideration of all the facts and circumstances obtaining the case. Rule 20.02 - A lawyer shall, in case of referral, with the consent of the client, be entitled to a division of fees in proportion to the work performed and responsibility assumed. In cases of referral, the lawyer requires the clients consent in order to be entitled to a division of fees. A lawyer shall not divide or stipulate to divide a fee for legal services with persons not licensed to practice law. A division of legal fees among lawyers should be in proportion to the work performed and the responsibility assumed by each lawyer. The same principle should be observed in a law firm partnership. When a client employs the services of a law firm, he does not employ the services of the lawyer who is assigned to personally handle the case. Rather, he employs the entire law firm. Rule 20.03 - A lawyer shall not, without the full knowledge and consent of the client, accept any fee, reward, costs, commission, interest, rebate or forwarding allowance or other compensation whatsoever related to his professional employment from anyone other than the client. Considering the fiduciary nature of the lawyer-client relationship, the lawyers professional services should be solely compensated by his client. If a third party will compensate the lawyer for his professional services to the client, the lawyer can accept such compensation only with the full knowledge and consent of the client. Rule 20.04 - A lawyer shall avoid controversies with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice or fraud. The lawyer should avoid resorting to suit against his clients involving his compensation. Canon 14 of the Canons of professional Ethics states that, controversies with clients concerning compensation are to be avoided by the lawyer so far as shall be compatible with his self-respect and with his right to receive reasonable recompense for his service; and lawsuits with the clients should be resorted to only to prevent injustice, imposition or fraud . Where a client has already paid more than half the lawyers fees, there is no imposition, injustice, or fraud that warrants resort to judicial action for collection of the remainder of the lawyers fees. It is settled that a claim for attorneys fees may be asserted either in the very action in which a lawyer rendered his services or in a separate action. But enforcing it in the main case bodes well as it forestalls
37
multiplicity of suits. The intestate court in this case, therefore, correctly allowed a lawyer to interject his claim for attorneys fees in the estate proceedings against some of the heirs and, after hearing, adjudicate the same on April 3, 1997 with an order for Arturo, et. al. to pay the lawyer the fees of P3 million due him. Since the award of P3 million in attorneys fees in favor of thje lawyer had already become final and executory, the intestate court was within its powers to order the Register of Deeds to annotate his lien on the Estates titles to its properties. The Estate has no cause for complaint since the lien was neither a claim nor a burden against the Estate itself. It was not enforceable against the Estate but only against Arturo, et. al., who constituted the majority of the heirs. Heirs and/or Estate of Atty. Rolando P. Siapian, represented by Susan S. Mendoza vs. Intestate Estate of the Late Eufrocina G. Mackay as represented by Dr. Roderick Mackay, et al., G.R. No. 184799, September 1, 2010. The issue of the reasonable legal fees due to the lawyer still needs to be resolved in a trial on the merits with the following integral sub-issues: (1) the reasonableness of the 10% contingent fee given that the recovery of Tiwis share [in unpaid realty taxes] was not solely attributable to the legal services rendered by the lawyer; (2) the nature, extent of legal work, and significance of the cases allegedly handled by the lawyer which reasonably contributed, directly or indirectly, to the recovery of Ti wis share, and (3) the relative benefit derived by Tiwi from the services rendered by the lawyer. The amount of reasonable attorneys fees finally determined by the trial court should be without legal interest in line with well-settled jurisprudence. Municipality of Tiwi, represented by Hon. Mayor Jaime C. Villanueva and Sangguniang Bayan of Tiwi Vs. Antonio B. Betito, G.R. No. 171873, July 9, 2010.
CANON 21 - A LAWYER SHALL PRESERVE THE CONFIDENCE AND SECRETS OF HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT RELATION IS TERMINATED.
The factors essential to establishing the existence of the attorney-client privilege are: 1. There exists an attorney-client relationship, or a prospective attorney- client relationship, and it is by reason of this relationship that the client made the communication. 2. The client made the communication in confidence. 3. The legal advice must be sought from the attorney in his professional capacity. Rule 21.01 - A lawyer shall not reveal the confidences or secrets of his client except; (a) When authorized by the client after acquainting him of the consequences of the disclosure; (b) When required by law; (c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action.
38
Disclosure may also be made when required by law, as when a client is about to, or attempting to, perform any illegal act or fraud. It is not within the profession of a lawyer to advise a client as to how he may commit crime as lawyer is not a gun for hire. Rule 21.02 - A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto. If the lawyer obtained information not due to the lawyer-client relationship but due to his personal dealings with the party, there can be no violation of this Rule. To hold otherwise would be precluding any lawyer from instituting a case against anyone to protect his personal or proprietary interests. Atty. Alcantara, Mercado & Spouses Mercado vs. Atty. De Vera ( November 23, 2010) Respondent is the former counsel of Rosario Mercado, being the latters counsel; respondent garnished the bank deposits of the defendant, but did not turn over the proceeds to Rosario. When Rosario demanded the turnover of the proceeds of the garnishment, Respondent refuse claiming that he had paid part of the money to the judge while the balance was his attorneys fees. Rosario then filed an administrative case over which the Respondent was suspended for one year. Following the release of the IBP Resolution to suspend him, he filed along with George Mercado series of law suits against the Mercado family as to the familys corporation, corporations accountant, and the judge who ruled against his claim of attorneys fees. The cases filed by the respondent against his former client involved matters and information acquired by the respondent during the time when he was still Rosarios counsel. Information as to the structure and operations of the family corporation, private documents, and other pertinent facts and figures used as basis or in support of the cases filed by the respondent in the pursuit of his malicious motives were all acquired through the attorney-client relationship with herein complainants.
Rule 21.03 - A lawyer shall not, without the written consent of his client, give information from his files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or any similar purpose. The lawyer-client privilege extends to all persons and entities hired by, or contracted with, by the lawyer in the course of rendering professional services. While as a rule, a lawyer is not barred from dealing with his own client, the business transaction must be characterized with utmost honesty and good faith. The measure of good faith which an attorney is required to exercise in his dealings with his client is a much higher
39
standard than is required in business dealings where the parties trade at arms length. Business between an attorney and his client are disfavored and discouraged by the policy of the law. Hence courts carefully watch these transactions to assure that no advantage is taken by a lawyer over his client. This rule is founded on public policy for, by virtue of his office, an attorney is in an easy position to take advantage of the credulity and ignorance of his client. Thus, no presumption of innocence or improbability of wrongdoing is considered in an attorneys favor. Rule 21.04 - A lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client. Privileged information can include the identity of the client. In Regala vs. Sandiganbayan, the Supreme Court upheld the claim of privilege made by the Angara Abello Concepcion Regala & Cruz (ACCRA) Law offices as to the identities of their clients. In that case, the Court noted that, in the course of their dealings with clients, the members of ACCRA acquire information relative to the assets of clients as well as their personal and business circumstances. While generally, a clients identity should not be shrouded in mystery, the Court affirmed several instances when the confidential mantle of the attorney-client privilege can embrace a clients identity: 1)Client identity is privileged where a strong probability exists that revealing the clients name would implicate that client in the very activity for which he sought the lawyers advice. 2.) Where disclosure would open the client to civil liability, his identity is privileged. 3.) Where the governments lawyers have no case against an attorneys client unless, by revealing the clients name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime, the clients name is privileged. Information relating to the identity of a client may therefore fall within the ambit of the privilege only when the clients name itself has an independent significance, such that disclosure would then reveal client confidences. Rule 21.05 - A lawyer shall adopt such measures as may be required to prevent those whose services are utilized by him, from disclosing or using confidences or secrets of the clients. Rule 21.06 - A lawyer shall avoid indiscreet conversation about a client's affairs even with members of his family. Rule 21.07 - A lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest.
CANON 22 - A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD
40
CAUSE AND UPON NOTICE APPROPRIATE IN THE CIRCUMSTANCES. Rule 22.01 - A lawyer may withdraw his services in any of the following case: (a) When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling; (b) When the client insists that the lawyer pursues conduct violative of these canons and rules; (c) When his inability to work with co-counsel will not promote the best interest of the client; (d) When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively; (e) When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement; (f) When the lawyer is elected or appointed to public office; and (g) Other similar cases. In cases of substitution of attorneys the following requisites must be complied with; 1. Written application for substitution; 2. Written consent of the client: and 3. A written consent of the attorneys to be substituted. In case the consent of the attorney to be substituted cannot be obtained, there must at least be proof that notice of the motion for substitution has been served upon him in the manner prescribed by the rules. The lawyer cannot presume that his petition for withdrawal will be granted by the court. He cannot unilaterally terminate the relationship with his client to the prejudice of his client. Until such withdrawal is approved, the lawyer remains counsel of record who is expected by his client as well as by the court to do what the interests of his client require. Rule 22.02 - A lawyer who withdraws or is discharged shall, subject to a retainer lien, immediately turn over all papers and property to which the client is entitled, and shall cooperative with his successor in the orderly transfer of the matter, including all information necessary for the proper handling of the matter. Upon termination of the lawyer-client relationship, the lawyer should coordinate with the client and/or his new counsel to facilitate the turnover of all papers, property, or files to which the client is entitled. It should not even be necessary for the client to have to sue her former counsel to retrieve her own files.
DISBARMENT & DISCIPLINE OF ATTORNEYS Rule 139-B, RULES OF COURT
41
Section 1. How instituted. - Proceedings for disbarment, suspension or discipline of attorneys may be taken by the Supreme Court motu proprio, or by the Integrated Bar of the Philippines (IBP) upon the verified complaint of any person. The complaint shall state clearly and concisely the facts complained of and shall be supported by affidavits of persons having personal knowledge of the facts therein alleged and/or by such documents as may substantiate said facts. The IBP Board of Governors may, motu proprio or upon referral by the Supreme Court or by a Chapter Board of Officers, or at the instance of any person, initiate and prosecute proper charges against erring attorneys including those in the government service; Provided, however, that all charges against Justices of the Court of Tax Appeals and the Sandiganbayan, and Judges of the Court of Tax Appeals and lower courts, even if lawyers are jointly charged with them, shall be filed with the Supreme Court; Provided, further, that charges filed against Justices and Judges before the IBP, including those filed prior to their appointment in the Judiciary, shall immediately be forwarded to the Supreme Court for disposition and adjudication. Six (6) copies of the verified complaint shall be filed with the Secretary of the IBP or the Secretary of any of its chapters who shall forthwith transmit the same to the IBP Board of Governors for assignment to an investigator. (As amended by Bar Matter No. 1960). The two-year prescriptive period for initiating a complaint against a lawyer for disbarment or suspension provided under Section 1, Rule VIII of the Rules of Procedure of the IBP Commission on Bar Discipline should be construed to mean two years from the date of discovery of the professional misconduct. Nesa Isenhardt vs. Atty. Leonardo M. Real, A.C. No. 8254, February 15, 2012. An Affidavit of Desistance has no effect on disciplinary proceedings. It bears to stress that a case of suspension or disbarment is sui generis and not meant to grant relief to a complainant in a civil case but is intended to cleanse the ranks of the legal profession or its undesirable members in order to protect the public and the courts. It is not an investigation into the acts of respondent as a husband but on his conduct as an officer of the Court and his fitness to continue as a member of the Bar. Hence, the Affidavit dated March 15, 1995, which is akin to an affidavit of desistance, cannot have the effect of abating the instant proceedings. Elpidio P. Tiong vs. Atty. George M. Florendo. A.C. No. 4428. December 12, 2011 Possession of good moral character is not only a condition for admission to the Bar but is a continuing requirement to maintain ones good standing in the legal profession. It is the bounden duty of law practitioners to observe the highest degree of morality in order to safeguard the integrity of the Bar. Consequently, any errant behavior on the part of a lawyer, be it in his public or private activities, which tends to show him deficient in moral character, honesty, probity or good demeanor, is sufficient to warrant his suspension or disbarment. Respondents act of having an affair with his clients wife manifested his disrespect for the laws on the sanctity
42
of marriage and his own marital vow of fidelity. It showed his utmost moral depravity and low regard for his profession. He also violated the trust and confidence reposed on him by the complainant, which in itself is prohibited under Canon 17 of the Code of Professional Responsibility. Elpidio P. Tiong vs. Atty. George M. Florendo. A.C. No. 4428. December 12, 2011 OFFICE OF THE COURT ADMINISTRATOR, V. ATTY. DANIEL B. LIANGCO, (DECEMBER 13, 2011) Recently, in Samson v. Judge Caballero, August 5, 2009, the court ruled that because membership in the bar is an integral qualification for membership in the bench, the moral fitness of a judge also reflects the latters moral fitness as a lawyer. A judge who disobeys the basic rules of judicial conduct also violates the lawyers oath. Disbarment proceedings are sui generis. As such, they render the underlying motives of complainant unimportant and of little relevance. The purpose of disbarment proceedings is mainly to determine the fitness of a lawyer to continue acting as an officer of the court and as participant in the dispensation of justice an issue which the complainants personal motives have little relevance. For this reason, upon information of an alleged wrongdoing, the Court may initiate the disbarment proceedings motu proprio. A. PROCEEDINGS IN THE INTEGRATED BAR OF THE PHILIPPINES
Sec. 2. National Grievance Investigator. - The Board of Governors shall appoint from among IBP members an Investigator or, when special circumstances so warrant, a panel of three(3) investigators to investigate the complaint All Investigators shall take an oath of office in the form prescribed by the Board of Governors. A copy of the Investigator's appointment and oath shall be transmitted to the Supreme Court. An Investigator may be disqualified by reason of relationship within the fourth degree of consanguinity or affinity to any of the parties or their counsel, pecuniary interest, personal bias, or his having acted as counsel for either party, unless the parties sign and enter upon the record their written consent to his acting as such Investigator. Where the Investigator does not disqualify himself, a party may appeal to the IBP Board of Governors, which by majority vote of the members present, there being a quorum, may order his disqualification. Any Investigator may also be removed for cause, after due hearing, by the vote of at least six (6) members of the IBP Board Governors. The decision of the Board of Governors in all cases of disqualification or removal shall be final. Sec. 3. Duties of the National Grievance Investigator. - The National Grievance Investigators shall investigate all complaint against members of the Integrated Bar referred to them by the IBP Board of Governors.
43
Sec. 4. Chapter assistance to complainant. - The proper IBP Chapter may assist the complainant(s) in the preparation and filing of his complaint(s). Sec. 5. Service or dismissal. - If the complaint appears to be meritorious, the Investigator shall direct that a copy thereof be served upon the respondent, requiring him to answer the same within fifteen (15) days from the date of service. If the complaint does not merit action, or if the answer shows to the satisfaction of the Investigator that the complaint is not meritorious, the same may be dismissed by the Board of Governors upon his recommendation. A copy of the resolution of dismissal shall be furnished the complainant and the Supreme Court which may review the case motu proprio or upon timely appeal of the complainant filed within 15 days from notice of the dismissal of the complainant. No investigation shall be interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of the charges, or failure of the complainant to prosecute the same. Sec. 6. Verification and service of answer. - The answer shall be verified. The original and five (5) legible copies of the answer shall be filed with the Investigator, with proof of service of a copy thereof on the complainant or his counsel. Sec. 7. Administrative counsel. - The IBP Board of Governors shall appoint a suitable member of the Integrated Bar as counsel to assist the complainant or the respondent during the investigation in case of need for such assistance. Sec. 8. Investigation. - Upon joinder of issues or upon failure of the respondent to answer, the Investigator shall, with deliberate speed, proceed with the investigation of the case. He shall have the power to issue subpoenas and administer oaths. The respondent shall be given full opportunity to defend himself, to present witnesses on his behalf and be heard by himself and counsel. However, if upon reasonable notice, the respondent fails to appear, the investigation shall proceed ex parte. The Investigator shall terminate the investigation within three (3) months from the date of its commencement unless extended for good cause by the Board of Governors upon prior application. Willful failure or refusal to obey a subpoena or any other lawful order issued by the Investigator shall be dealt with as for indirect contempt of court. The corresponding charge shall be filed by the Investigator before the IBP Board of Governors which shall require the alleged contemnor to show cause within ten (10) days from notice. The IBP Board of Governors may thereafter conduct hearings, if necessary, in accordance with the procedure set forth in this Rule for hearings before the Investigator. Such hearing shall, as far as practicable, be terminated within fifteen (15) days from its commencement. Thereafter, the IBP Board of Governors shall within like period fifteen (15) days issue a resolution setting forth its findings
44
and recommendations, which `shall forthwith be transmitted to the Supreme Court for final action and if warranted, the imposition of penalty. Sec. 9. Depositions. - Depositions may be taken in accordance with the Rules of Court with leave of the investigator(s). Within the Philippines, depositions may be taken before any member of the Board of Governors, the President of any Chapter, or any officer authorized by law to administer oaths. Depositions may be taken outside the Philippines before a diplomatic or consular representative of the Philippine Government or before any person agreed upon by the parties or designated by the Board of Governors. Any suitable members of the Integrated Bar in the place where a deposition shall be taken may be designated by the Investigator to assist the complainant or the respondent in taking a deposition. Sec. 10. Report of Investigator. - Not later than thirty (30) days from the termination of the investigation, the Investigator shall submit a report containing his findings of fact and recommendations to the IBP Board of Governors, together with the stenographic notes and the transcripts thereof and all the evidence presented during the investigation. The submission of the report need not await the transcription of the stenographic notes, it being sufficient that the report reproduce substantially from the Investigator's personal notes any relevant and pertinent testimonies. Sec. 11. Defects. - No defect in a complaint, notice, answer, or in the proceeding or the Investigator's Report shall be considered as substantial unless the Board of Governors, upon considering the whole record, finds that such defect has resulted or may result in a miscarriage of justice, in which event the Board shall take such remedial action as the circumstance may warrant, including invalidation of the entire proceedings. Sec. 12. View and decision by the Board of Governors. (a) Every case heard by an investigator shall be reviewed by the IBP Board of Governors upon the record and evidence transmitted to it by the Investigator with his report. The decision of the Board upon such review shall be in writing and shall clearly and distinctly state the facts and the reasons on which it is based. It shall be promulgated within a period not exceeding thirty (30) days from the next meeting of the Board following the submittal of the Investigator's Report (b) If the Board, by the vote of a majority of its total membership, determines that the respondent should be suspended from the practice of law or disbarred, it shall issue a resolution setting forth its findings and recommendations which, together with the whole record of the case, shall forthwith be transmitted to the Supreme Court for final action.
45
(c) If the respondent is exonerated by the Board or the disciplinary sanction imposed by it is less than suspension or disbarment (such as admonition, reprimand, or fine) it shall issue a decision exonerating respondent or imposing such sanction. The case shall be deemed terminated unless upon petition of the complainant or other interested party filed with the Supreme Court within fifteen (15) days from notice of the Boards resolution, the Supreme Court orders otherwise. (d) Notice of the resolution or decision of the Board shall be given to all parties through their counsel. A copy of the same shall be transmitted to the Supreme Court. . B. PROCEEDINGS IN THE SUPREME COURT Sec. 13. Supreme Court Investigators. - In proceedings initiated motu proprio by the Supreme Court in other proceedings when the interest of justice so requires, the Supreme Court may refer the case for investigation to the Solicitor General or to any officer of the Supreme Court or judge of a lower court, in which case, the investigation shall proceed in the same manner provided in Sections 6 to 11 hereof, save that the review report of the investigation shall be conducted directly by the Supreme Court. Respondent law professors asked for alternative reliefs should the Court find their Compliance unsatisfactory, that is, that the Show Cause Resolution be set for hearing and for that purpose, they be allowed to require the production or presentation of witnesses and evidence bearing on the plagiarism and misrepresentation issues in the Vinuya case (G.R. No. 162230) and the plagiarism case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access to the records of, and evidence that were presented or may be presented in the ethics case against Justice Del Castillo. It should be clarified that this is not an indirect contempt proceeding and Rule 71 (which requires a hearing) has no application to this case. As explicitly ordered in the Show Cause Resolution this case was docketed as an administrative matter. The rule that is relevant to this controversy is Rule 139-B, Section 13, on disciplinary proceedings initiated motu proprio by the Supreme Court. From the foregoing provision, it cannot be denied that a formal investigation, through a referral to the specified officers, is merely discretionary, not mandatory on the Court. Furthermore, it is only if the Court deems such an investigation necessary that the procedure in Sections 6 to 11 of Rule 139-A will be followed. As respondent professors are fully aware, in general, administrative proceedings do not require a trial type hearing. Re: Letter of the UP Law Faculty entitled Restoring Integrity: A statement by the Faculty of the University of the Philippines College of Law on the allegations of plagiarism and misrepresentation in the Supreme Court, A.M. No. 10-10-4-SC, March 8, 2011. REINSTATEMENT Richards vs. Patricio Asoy ( October 12, 2010) On 1985, Asoy was suspended for violating lawyers oath. In 1987,
46
he was subsequently disbarred being guilty of professional misconduct for abandoning the case he handled such was dismissed for failure to prosecute. Respondent ignored the processes of the Court and it was only after he was suspended from the practice of law that he surfaced, is highly indicative of his disregard of an attorneys duty to the Court. All the facts and circumstances taken into consideration, Respondent has proven himself unworthy of the trust reposed in him by law as an officer of court. In year 2000, Respondent filed a petition for readmission to the practice of law stating that on January 2, 1996 or about nine years after his disbarment and directive to reimbursement via consignation with the Court of Office cashier. However such was denied. On August 2, 2010 Respondent then filed another Petition for readmission to the practice of law stating that he effected the payment thru consignation with the Office of the Cashier of the Supreme Court as complainant could no longer be found or located. The court denied the respondents petition for readmission to the bar, the delay on the part of Asoy in paying the complainant glaringly speaks of his lack of candor, of his dishonesty, qualities that do not endear him to the esteemed brotherhood lawyers. The solemn oath which all lawyers take upon admission to the bar to dedicate their lives to the pursuit of justice is neither a mere formality nor hollow words meant to be taken lightly, but a sacred trust that lawyers must uphold and keep inviolable at all times. The lack of sufficient justification or explanation for the nine-year delay in complying with the Court Resolutions to reimburse complainant betrays a clear and contumacious disregard for the lawful orders of the Court. Reyes v. Atty. Vitan (August 10, 2010) Four (4) administrative case were filed against Atty. Jeremias R. Vitan, in each of which he was found guilty and meted the penalty of suspension from the practice of law. He filed a petition with the Office of the Bar Confidant praying that he be reinstated as member in good standing of the Philippine Bar and be allowed to resume the practice of law, claiming that he had already served the penalty of suspension imposed on him, and that he is now reformed. The Court granted the Atty. VitansPetition for Reinstatement applying the guidelines in LigayaManiago v. Atty. Lourdes I. de Dios, March 10, 2010, where the court issued the guidelines on the lifting of orders of suspension, and has advised strict observance thereof. However, the Court will not hesitate to withhold the privilege of the practice of law if it is shown that respondent, as an officer of the Court, is still not worthy of the trust and confidence of his clients and of the public. Atty. Vitan is further directed to furnish copies of the Sworn Statement to the Integrated Bar of the Philippines and Executive Judge(s), as mandated in Maniago. Any finding or report contrary to the statement made by the Respondent under oath shall be a ground for the imposition of a more severe punishment, or disbarment, as may be warranted. Guidelines to be observed in the matter of the lifting of an order suspending a lawyer from the practice of law:(Maniago v. de Dios, March 10, 2010)
47
1) 2)
3)
4)
5) 6)
After a finding that respondent lawyer must be suspended from the practice of law, the Court shall render a decision imposing the penalty; Unless the Court explicitly states that the decision is immediately executory upon receipt thereof, respondent has 15 days within which to file a motion for reconsideration thereof. The denial of said motion shall render the decision final and executory; Upon the expiration of the period of suspension, respondent shall file a Sworn Statement with the Court, through the Office of the Bar Confidant, stating therein that he or she has desisted from the practice of law and has not appeared in any court during the period of his or her suspension; Copies of the Sworn Statement shall be furnished to the Local Chapter of the IBP and to the Executive Judge of the courts where respondent has pending cases handled by him or her, and/or where he or she has appeared as counsel; The Sworn Statement shall be considered as proof of respondents compliance with the order of suspension; Any finding or report contrary to the statements made by the lawyer under oath shall be a ground for the imposition of a more severe punishment, or disbarment, as may be warranted.
48

Legal Ethics Handout - October 4, 2012

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Legal Ethics Handout - October 4, 2012

Uploaded by

Copyright:

Available Formats

LECTURE NOTES ON LEGAL ETHICS ATTY. MOLLY CR. ABIOG,M.D.

CHAPTER I. THE LAWYER AND SOCIETY

CHAPTER II. THE LAWYER AND THE LEGAL PROFESSION

CHAPTER III. THE LAWYER AND THE COURTS

CHAPTER IV. THE LAWYER AND THE CLIENT

CANON 16 - A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES

CANON 22 - A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD

DISBARMENT & DISCIPLINE OF ATTORNEYS Rule 139-B, RULES OF COURT

You might also like