Class Notes

Tuesday, March 11, y

Problem Area in Legal Ethics Hi classmates, here are the notes from last Wednesday s class, not sure if this is complete though, so feel free to add some more. Thanks! -Ana

Atty. Capules Questions and reminders: 1. What do you mean by pro hac vice? 2. What is the rule on serving multiple suspensions? Are you entitled to a Motion for Reconsideration (MR)? . !f the dispositive portion does not state that the decision is immediately e"ecutory# can an MR still be filed? $. Are cases on disbarment stayed by an MR? %. &an a lo'er court li(e M)& or R)& suspend a la'yer? *. !s the +enior &iti,en discount applicable in the payment of membership fees?

Important topics to review for the exams: 1. -ood moral character . rehabilitation 2. /re0admission conduct . 1ature23ssence of indefinite suspension vis0a0vis 4isbarment $. Absolute pardon granted unconditionally vis0a0vis Reinstatement

Cases emphasized: !n re5 6ames 6oseph 7amm !n Re5 Almacen !n Re5 8onto( !n Re5 6udge 4ia,

Class Notes

Tuesday, March 11, y

Topics for the Midterms: 1. Re uirements !efore admission to the !ar"practice of la# $. %udicial clemency and reinstatement in the practice of la# &. 'rounds for dis!arment other than gross immorality (. )olicitation of legal services *. +isciplinary proceedings against la#yers ,. Ac uisition of properties su!-ect of litigation

Who can initiate a complaint? ($) When can an anonymous complaint be entertained by the !9/ or the +&? +uppose there is a criminal . administrative case# shall !9/ hold in abeyance until the criminal case is resolved? &an a disciplinary proceeding continue pending a criminal case involving moral turpitude? 0!f the facts of the case is a violation of any of the canons of the &/R# the !9/ shall proceed despite the pending criminal case. :ther'ise# it shall be held in abeyance until the case is resolved

;Reinstatement re<uires a higher degree of good moral character compared to that 'hich is re<uired before admission to the bar What if there is an Affidavit of 4esistance? 0if there is no basis for investigation# then the A4 shall stay the cogni,ance of the !9/

Class Notes

Tuesday, March 11, y

In Re: Joseph Hamm 7amm=s past criminal conduct and the serious nature of that conduct affect the burden he must meet to establish good moral character. 7e must first establish rehabilitation from prior criminal conduct# a re<uirement that adds to his burden of sho'ing current good moral character. Where an applicant for admission to the bar has a criminal record# his or her burden of establishing present good moral character ta(es on the added 'eight of proving full and complete rehabilitation subse<uent to conviction When 7amm committed first0degree murder in 1>?$# he demonstrated his e"treme lac( of good moral character. Although this &ourt has not adopted a per se rule e"cluding an applicant 'hose past includes such serious criminal misconduct# 'e agree 'ith those @urisdictions that have held that an applicant 'ith such a bac(ground must ma(e an e"traordinary sho'ing of rehabilitation and present good moral character to be admitted to the practice of la'. 7amm=s lac( of candor before the &ommittee and this &ourt# his failure to accept full responsibility for his serious criminal misconduct# and his failure to accept or fulfill# on a timely basis# his parental obligation of support for his son# all sho' that 7amm has not met the stringent standard that applies to an applicant in his position 'ho see(s to sho' his present good moral character.

Class Notes

Tuesday, March 11, y

3AA3&) :A 3B3&C)!D3 /AR4:1 IN RE LONTO April ?# 1>22 Malcolm# 6.5 AA&)+5 :n Aebruary 2?# 1>1E# Atty. 8onto( 'as convicted of the crime of bigamyby &A! Fambales. +upreme &ourt affirmed the lo'er court s decision as 'ell ma(ing it final and e"ecutory. :n 1>22# Atty. 8onto( 'as granted by the -overnor -eneral an e"ecutive pardon. 1o'# Atty. -eneral see(s the disbarment of Marcelino 8onto( because of having been convicted of the crime of bigamy despite the pardon given to him. !++C35 W21 the effect of pardon may prevent 8onto( from disbarment. 73845 G3+. !t is contended by the government that 'hile the pardon removes the legal infamy of the crime# it cannot 'ash out the moral stainH on the other hand it is contended by the respondent that the pardon reaches the offenses for 'hich he 'as convicted and blots it out so that he may not be loo(ed upon as guilty of it. +& follo'ed the ruling in the case of 3" /arte -arland (1E**) 'herein the +& held that5 A pardon reaches both the punishment prescribed for the offense and the guilt of the offenderH and 'hen the pardon is full# it releases the punishment and blots out of e"istence the guiltH so that in the eye of the la'# the offender is innocent as if he had never committed the offense. !f granted before conviction# it prevents any of the penalties and disabilities# conse<uent upon conviction from attachingH if granted after conviction# it removes the penalties and disabilities# and restore him to all his civil rightsH it ma(es him as it 'ere# a ne' man# and gives him a ne' credit and capacity. Atty. -enerals petition is denied.

Class Notes In Re: Almacen

Tuesday, March 11, y

Atty. Almacen 'as the counsel of one Dirginia Gaptinchay in a civil case. )hey lost in said civil case but Almacen filed a Motion for Reconsideration. 7e notified the opposing party of said motion but he failed to indicate the time and place of hearing of said motion. 7ence# his motion 'as denied. 7e then appealed but the &ourt of Appeals denied his appeal as it agreed 'ith the trial court 'ith regard to the motion for reconsideration. 3ventually# Almacen filed an appeal on certiorari before the +upreme &ourt 'hich outrightly denied his appeal in a minute resolution. )his earned the ire of Almacen 'ho called such minute resolutions as unconstitutional. 7e then filed before the +upreme &ourt a petition to surrender his la'yer s certificate of title as he claimed that it is useless to continue practicing his profession 'hen members of the high court are men 'ho are calloused to pleas for @ustice# 'ho ignore 'ithout reasons their o'n applicable decisions and commit culpable violations of the &onstitution 'ith impunity. 7e further alleged that due to the minute resolution# his client 'as made to pay /12I( 'ithout (no'ing the reasons 'hy and that he became one of the sacrificial victims before the altar of hypocrisy. 7e also stated that @ustice as administered by the present members of the +upreme &ourt is not only blind# but also deaf and dumb. )he +upreme &ourt did not immediately act on Almacen s petition as the &ourt 'anted to 'ait for Almacen to ctually surrender his certificate. Almacen did not surrender his la'yers certificate though as he no' argues that he chose not to. Almacen then as(ed that he may be permitted to give reasons and cause 'hy no disciplinary action should be ta(en against him . . . in an open and public hearing. 7e said he preferred this considering that the +upreme &ourt is the complainant# prosecutor and 6udge. Almacen 'as ho'ever unapologetic. I!!"E: Whether or not Almacen should be disciplined. HEL#: Ges. )he +upreme &ourt first clarified that minute resolutions are needed because the +upreme &ourt cannot accept every case or 'rite full opinion for every petition they re@ect other'ise the 7igh &ourt 'ould be unable to effectively carry out its constitutional duties. )he proper role of the +upreme &ourt is to decide only those cases 'hich present <uestions 'hose resolutions 'ill have immediate importance beyond the particular facts and parties involved. !t should be remembered that a petition to revie' the decision of the &ourt of Appeals is not a matter of right# but of sound @udicial discretionH and so there is no need to fully e"plain the court s denial. Aor one thing# the facts and the la' are already mentioned in the &ourt of Appeals opinion.

:n Almacens attac( against the +upreme &ourt# the 7igh &ourt regarded said criticisms as uncalled forH that such is insolent# contemptuous# grossly disrespectful and derogatory. !t is true that a la'yer# both as an officer of the court and as a citi,en# has the right to critici,e in properly respectful terms and through legitimate channels the acts of courts and @udges. 7is right as a citi,en to critici,e the decisions of the courts in a fair and respectful manner# and the independence of the bar# as 'ell as of the @udiciary# has 5

Class Notes

Tuesday, March 11, y

al'ays been encouraged by the courts. 9ut it is the cardinal condition of all such criticism that it shall be bona fide# and shall not spill over the 'alls of decency and propriety. !ntemperate and unfair criticism is a gross violation of the duty of respect to courts. !n the case at bar# Almacens criticism is misplaced. As a veteran la'yer# he should have (no'n that a motion for reconsideration 'hich failed to notify the opposing party of the time and place of trial is a mere scrap of paper and 'ill not be entertained by the court. 7e has only himself to blame and he is the reason 'hy his client lost. Almacen 'as suspended indefinitely.

In Re: J$dge #ia% 6

Class Notes

Tuesday, March 11, y

!n a letter dated 6uly 1E# 2II?# 6udge Augustus &. 4ia,# presiding @udge of 9ranch ? of the Metropolitan )rial &ourt of Jue,on &ity# informed the &ourt that he is an applicant for @udgeship in one of the vacant Regional )rial &ourt branches in Metro Manila. !n connection there'ith# he 'as intervie'ed by the 6udicial and 9ar &ouncil on 6uly 1I# 2II?. 7e 'as told to see( @udicial clemency due to the fact that he 'as once fined /2I#III for not hearing a motion for demolition. 7e claims that this lapse happened only once as a result of oversight. 7e re<uests @udicial clemency and# in particular# that he be allo'ed to again be nominated to one of the vacant branches of the Regional )rial &ourt of Manila or in any of the cities 'here KhisL application Kis beingL considered. !n a subse<uent letter#K1L 6udge 4ia, stated that he has been the presiding @udge of 9ranch ? of the Metropolitan )rial &ourt of Jue,on &ity since March 1# 1>>%. 7e e"pressed deep remorse for the lapse for 'hich he 'as held administratively liable in Alvare. v. +ia..K2L 7e confessed that KtLhe stain of the penalty has taught KhimL a bitter lesson and promised to avoid the commission of the same or similar acts. 7e submitted himself to the @udicious discretion of this &ourt for 'hatever action the &ourt may ta(e on his plea for @udicial clemency. !n Alvare.# 6udge 4ia, 'as found guilty of gross ignorance of the la' 'hen he granted the follo'ing motions5 (1) a motion for e"ecution 'hich 'as fatally defective for lac( of notice to the defendant and (2) a motion for demolition 'ithout notice and hearing. 7is action on the motion for demolition also made him liable for grave abuse of authority.K L 7e 'as fined /2I#III.K$L +ection %# Rule $ of the Rules of the 6udicial and 9ar &ouncil provides5 +3&. %. +is ualification. )he follo'ing are dis<ualified from being nominated for appointment to any @udicial post or as :mbudsman or 4eputy :mbudsman5 1. 2. . )hose 'ith pending criminal or regular administrative casesH )hose 'ith pending criminal cases in foreign courts or tribunalsH and Those &ho ha'e been con'icted in any criminal caseH or in an administrati'e case( &here the penalt) imposed is at least a fine of more than P*+(+++( $nless he has been granted ,$dicial clemenc). K%L (emphasis supplied)

Cnder the said provision# 6udge 4ia, is dis<ualified from being nominated for appointment to any @udicial post# until and unless his re<uest for @udicial clemency is granted. &oncerned 'ith safeguarding the integrity of the @udiciary# this &ourt has come do'n hardK*L and 'ielded the rod of discipline against members of the @udiciary 'ho have fallen short of the e"acting standards of @udicial conduct.K?L )his is because a @udge 7

Class Notes

Tuesday, March 11, y

is the visible representation of the la' and of @ustice.KEL 7e must comport himself in a manner that his conduct must be free of a 'hiff of impropriety# not only 'ith respect to the performance of his official duties but also as to his behavior outside his sala and as a private individual.K>L 7is character must be able to 'ithstand the most searching public scrutiny because the ethical principles and sense of propriety of a @udge are essential to the preservation of the peoples faith in the @udicial system.K1IL &lemency# as an act of mercy removing any dis<ualification# should be balanced 'ith the preservation of public confidence in the courts. )he &ourt 'ill grant it only if there is a sho'ing that it is merited. /roof of reformation and a sho'ing of potential and promise are indispensable.K11L !n the e"ercise of its constitutional po'er of administrative supervision over all courts and all personnel thereof#K12L the &ourt lays do'n the follo'ing guidelines in resolving re<uests for @udicial clemency5 )here must be proof of remorse and reformation.K1 L )hese shall include but should not be limited to certifications or testimonials of the officer(s) or chapter(s) of the !ntegrated 9ar of the /hilippines# @udges or @udges associations and prominent members of the community 'ith proven integrity and probity. A subse<uent finding of guilt in an administrative case for the same or similar misconduct 'ill give rise to a strong presumption of non0reformation. 2. +ufficient time must have lapsed from the imposition of the penaltyK1$L to ensure a period of reformation. . )he age of the person as(ing for clemency must sho' that he still has productive years ahead of him that can be put to good use by giving him a chance to redeem himself.K1%L $. )here must be a sho'ing of promiseK1*L (such as intellectual aptitude# learning or legal acumen or contribution to legal scholarship and the development of the legal system or administrative and other relevant s(ills)# as 'ell as potential for public service.K1?L %. )here must be other relevant factors and circumstances that may @ustify clemency. !n this case# 6udge 4ia, e"pressed sincere repentance for his past malfeasance. 7e humbly accepted the verdict of this &ourt in Alvare.. )hree years have elapsed since the promulgation of Alvare.. !t is sufficient to ensure that he has learned his lesson and that he has reformed. 7is 12 years of service in the @udiciary may be ta(en as proof of his dedication to the institution. )hus# the &ourt may no' open the door of further opportunities in the @udiciary for him. Accordingly# the letter dated 6uly 1E# 2II? of 6udge Augustus &. 4ia, is hereby NOTE#. 7is re<uest for @udicial clemency is -RANTE#. 1.