Professional Documents
Culture Documents
INTRODUCTION
This paper would like to explain what rules lawyers adhere to in order to
be truthful and ethical in their practice without sacrificing the livelihood aspect
of their profession.
Included in this paper are the common issues that affects solicitation of
legal services. Sample bar examination questions and as well as some cases
pertaining to this unethical act.
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Form 28- Attorneys Oath, Rules of Court, Rex Publishing Company, 2008 ed. p. 585
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Solicitation is defined as a petition for request, enticement or allurement
. While Legal services refers to an act of giving helpful activity regarding legal
matters.2
When one solicits, it means that a person do some acts which would tend
to attract somebody to what that person would like to have . Applying this
concept to legal services, the idea of soliciting would pertain to the means that a
lawyer do in order to gain profit by attracting the legal need of a potential
client. Of course, what is being talked about here is the unethical aspect of
soliciting legal services. Part of this paper therefore, is to also explain the ethical
way of soliciting legal services.
Also at the end of this paper is the answer to the question: what would be
the consequence of practicing an unethical act of soliciting legal services. This
would pertain to the penalty that a lawyer could face if ever he do acts in the
nature of unethical solicitation which are violative of their lawyers oath of
upholding the Constitution and obeying the laws of the land.
It is of no secret that our code of ethics in the legal profession came from
foreign laws. Notably it was based on the American Bar Associations Canons of
Professional Ethics in 1908. This was adopted in the Philippines in 1917.
Eventually the Philippines created its own code of professional ethics to lawyers
which was named as the Code of Professional Responsibility promulgated on
June 21, 1988.3 This is what is commonly known today as the CPR.
In the legal profession, one should always consider the presence of the
following with respect to the legal profession:
2
Dictionary.reference.com/browse/service
3
E. Pineda, Legal Ethics, Pg. 2-3
4
LEGAL & JUDICIAL ETHICS REVIEWER BY: RENE CALLANTA , p. 14
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SOURCES OF PHILIPPINE LEGAL ETHICS
1. Rules of Court
The primary basis for the creation of the code of legal ethics for lawyers in
the Philippines is Art. 8, Sec. 5[5] of the 1987 Constitution which provides that:
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E. Pineda, Legal Ethics. p.2
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DISCUSSION
APPLICABLE LAWS
In the discussion for solicitation for legal services, it is important to note the
specific rules under the Code of Professional Responsibility which applies to
this topic. These rules are based on the lawyers oath cited in the first page of
this paper. To be reminded, the following quotation from the lawyers oath shall
serve to aid the readers memory with regard to solicitation for legal services.
The lawyers oath says:
At the outset, the following are the applicable rules under the Rules of Court
Under the rules of the Code of Professional Responsibility, the following are
listed:
CANON 1- A lawyer shall uphold the constitution, obey the laws of the land and
promote respect for law and legal processes.
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Rule 1.01- A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
Rule 1.03.A lawyer shall not, for any corrupt motive or interest, encourage
any suit or proceeding or delay in a mans cause.
Rule 2.03.A lawyer shall not do or permit to be done any act designed
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, air,
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 3.04- 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.
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:
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6. Using the media to attract legal services
Each of these category would be discussed below together with the relevant
cases.
CASE ONE
The above cited case is a clear indication that in order to solicit legal
services, the lawyer here apparently misled the respondent into believing that
he could bring her out of the country without processing the valid documents.
6
R. Rodriguez, The Fundamentals of Legal and Judicial Ethics, ed. p. 46 (2004)
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CASE TWO
IN RE: TAGORDA
53 Phil 37
As a notary public, he can execute for you a deed of sale for the
purchase of land as required by the cadastral office, can renew lost
documents of young animals, can make your application and final
requisites for your homestead, and execute any kind of affidavit. As a
lawyer, he can help you collect your loans, altogether long overdue, as
well as any complaints for or against you. He offers free consultation
and is willing to help the poor.
He was suspended7
CASE ONE
Synopsis: For engaging in the practice of soliciting cases and for the purpose
of gain through paid agents or brokers, respondent attorney is reprimanded.
FACTS: The issue in this case is whether the disciplinary action should be
taken against the lawyer David for not giving Tan Tek Beng, a non lawyer, one
half of the attorneys fees received by David from the clients supplied by Tan
Tek Beng. There agreement reads:
TIMOTEO A. DAVID
HELD: We hold that the said agreement is void because it was tantamount to
malpractice which is the practice of soliciting cases at law for the purpose of
gain, either personally or through paid agents or brokers.(Sec. 27, Rule 138,
Rules of Court)8
7
Same, p. 86
8
Same, p. 66
7
It is clear in this case that the use of agents in soliciting legal services is
prohibited by law and therefore unethical. This is no different from the notary
publics that most people see under train stations or those who are practicing
dubious notary in Recto Avenue in Manila. It must be noted that in order for a
notary public to notarize, there is a need for the notarial book of a lawyer where
he puts entries there and that the affiant should personally appear before him.
Unfortunately, this is not strictly followed in actual practice. There are a lot of
lawyers who do this kind of modus operandi in order to gain money. Of course,
this is unethical because the practice of law is not a business.
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:
CASE ONE
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unprofessional, and the commission of offenses of this character amply justifies
permanent elimination from the bar. x x x9
CASE TWO
FACTS: The respondet Atty. Bayot is charged with malpractice for having
published an advertisement in the Sunday Tribune of June 13, 1943, which
reads follows:
CASE THREE
FACTS: Petitioner prays this Court to order the respondent to cease and desist
from issuing the following advertisements:
SECRET MARRIAGE?
P560.00 for a valid marriage.
Info on DIVORCE, ABSENCE, ANNULMENT.
VISA.
THE LEGAL CLINIC, INC.
x x x
HELD: The Supreme Court enjoined the said corporation from issuing or
causing the publication or dissemination of any advertisement in any form
which is of the same or similar tenor and purpose of as above.
These advertisements are contrary to Rule 2.03 and Rule 3.01 of the
Code of Professional Responsibility.
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It can be gleaned from the above cases that false advertisements to solicit
legal services are probably the most common of the unethical solicitation of
legal services. At this point, the authors of this paper would like to call the
readers attention regarding the websites of big law firms in the country.
Without mentioning any names of the law firms, the authors have found out
that whenever one would go to the websites of these law firms, their expertise
are displayed in their websites. Are these not tantamount to solicitation of legal
services also? The authors believe that they are because there seems to be a
hidden intent on the part of these law firms to solicit business by stating what
their expertise are. For example, in a law firm in Makati, their website would
provide that they are entertaining tax cases, mining cases and intellectual
property cases. If this is continued, what would then happen to the small law
firms? It is believed and as will be discussed later that the best advertisement of
a law firm would be by word of mouth. This would be discussed later.
Rule 2.04- A lawyer shall not charge rates lower than those customarily
prescribed unless the circumstances so warrant.
Corollary to this are the fees charged by a notary public as cited under
Rule 141, Sec. 12 of the Rules of Court. This could be a proper subject of
amendment because of its seemingly low rates but, nevertheless, the Rule
provides for the standard to follow in charging notarial fees. The Rule provides:
Sec. 12. Notaries.- No notary public shall charge or receive for any
service rendered by him any fee, remuneration or compensation in
excess of those expressly prescribed in the following schedule:
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a. For protests of drafts, bills of exchange, or promissory notes for
non-acceptance or non-payment, and for notice thereof, ONE
HUNDRED (P100) PESOS;
b. For the registration of such protest and filing or safekeeping of
the same, ONE HUNDRED (P100);
c. For authenticating powers of attorney, ONE HUNDRED PESOS;
d. For sworn statement concerning correctness of any account or
other document, ONE HUNDRED PESOS;
e. For each oath or affirmation, ONE HUNDRED PESOS;
f. For receiving evidence of indebtedness to be sent outside , ONE
HUNDRED PESOS;
g. For issuing a certifiedcopy of all or part of his notarial register
or notarial records, for each page, ONE HUNDRED PESOS;
h. For taking depositions, for each page, ONE HUNDRED PESOS; and
i. For acknowledging other documents not enumerated in this
section, ONE HUNDRED PESOS.
The pertinent rules for this category of unethical practice of soliciting legal services
are the following:
CANON 3- A lawyer in making known his legal services shall use only true, honest,
air, 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.
Thus, if a group of lawyers would like to establish a law firm, they cannot
use a false name or include in their partnership name the name of a person who
is not a lawyer. It does not mean that if a person is well-known he could just be
included in their firm name just to falsely misrepresent that they can be trusted.
Also if a partner died, there should be an indication that such partner died in
their firm name. This is usually done by placing some marks above the name of
the deceased partner such as a cross or an asterisk. If a Filipino lawyer is also
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using the name of a foreign law firm, he is likewise prohibited by law to practice
under the name of such a firm. A good case for this one is the case of Dacanay
vs. Baker & McKenzie.
CASE ONE
Respondent Vicente A. Torres, using the letterhead of Baker & McKenzie, which
contains the names of ten lawyers, asked Rosie Clurman for the release of 87
shares of Cathay Products International, Inc. To H.E., Gabriel, a client.
Filipino lawyers cannot practice law under the name of a foreign law firm.
Name of partner should be dropped from the firm name when he accepts
public office. If a partner in a law firm has accepted a public office, his
name shall be removed from the firm name.
Exception : If the law allows him to practice law concurrently while
holding the position such as Sanggunian members are subject to certain
restrictions.
Sometimes, the more a lawyer is exposed to the media, the public is more inclined to
get the services of that lawyer. This is perhaps on the false notion that that lawyer can readily
help whatever legal predicament they are facing. They do not know, that each lawyer has
some expertise. No lawyer has an expert knowledge on every legal subject. That is the reason
why a lawyer needs to build a reputation through words of mouth about his legal
competence to a particular topic. While it is true that exposure to the public would know the
legal expertise of a lawyer. This is not always the case. There is a bigger danger as to the
giving of legal advice of some lawyers when they are not really an expert in that field. All they
could give are general ideas which of course the ordinary person does not really understand
thoroughly. The act of giving legal advice in televisions should be regulated by the Supreme
Court as this could violate the ethical practice of soliciting legal services.
CANON 3- A lawyer in making known his legal services shall use only true, honest,
air, dignified and objective information or statement of facts.
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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.
This canon refers to all kinds of media. The fastest rising means of
advertising legal services at this point would be the internet. In the Philippines
though, since not all households get access to the internet, still the most
popular means of soliciting legal services through the media would still be the
radio and the television. However, the giving of a legal advice in good faith in
different should not be completely abhorred. \
A. BARRATRY
B. It is the offense of frequently exciting and stirring up quarrels and suits,
either at law or otherwise. The person who engages in barratry is called a
barretor or barrator.11
C. MAINTENANCE
It is the intermeddling of an uninterested party to encourage a lawsuit. It
is a taking in hand,a bearing up or upholding or quarrels or sides, to the
disturbance of the common right. 12
D. AMBULANCE CHASING
It is the lawyers act of chasing an ambulance carrying the victim of an
accident for the purpose of talking to the said victim or relatives and
offering his legal services for the filing of a case against the person who
caused the accident.13
In the case of Ulep vs. Legal Clinic 223 SCRA 378, it stated there the
following allowable kind of advertisement of a lawyer:
11
D. Funa, Legal and Judicial Ethics with Bar Examination Quesitons, p. 45
12
D. Funa, Legal and Judicial Ethics with Bar Examination Quesitons, p. 45
13
E. Pineda, Legal Ethics, p. 64
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1.PUBLICATION IN A LAW LIST-Publication of reputable law lists, in a
manner consistent with the standards of conduct imposed by the canons, or
brief biographical and informative data.
2.CALLING CARDS- The use of ordinary simple professional card. The card
contain only a statement of his name, the name of the law firm which he is
connected with, address, telephone no., and special branch of law practiced.
Law is a profession and not a trade because its basic ideal is to render public
service and secure justice for those who seek its aid. The gaining of a livelihood
is only a secondary consideration
2. . Explain the axiom The practice of law is noble profession, not a business.
(1975 Bar
Exam)
The practice of law is a noble profession and not a business because it treats of
the most important interests of man, namely: life, liberty and property. The
lawyers first duty is to maintain good administration of justice. In maintaining
the causes confided to him, he should delay no man for money or malice. He
should not reject for any personal reason the causes of the defenseless and the
oppressed. Pecuniary rewards are but a secondary importance. The profession
of law is more a mission than a business profession and therefore its object is
not material reward but promote the administration of justice; hence, where a
lawyer in the pursuit of his calling finds conformity with professional ethics
difficult, he should other vocation.
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The use of professional cards carrying the name of the lawyer, his title,
his office and his residence maybe proper. Announcements in periodicals or
magazines regarding the opening of a law office or the foundation of a law
partnership containing only names and addresses are proper.
b. Suppose that in the above notice the reference to the IBP is deleted.
Instead, the name of a particular lawyer is what appears. Would it make a
difference to your previous answer? Explain. [1980 bar exams]
However, if the notice does not include the reference of the IBP chapter
and only the name of the particular lawyer appears, it might constitute as
unethical solicitation.
7. A Justice of the Supreme Court, while reading a newspaper one weekend, saw
the following advertisement:
ANNULMENT OF MARRIAGE
Competent Lawyer
Reasonable Fee
Call 221 2221
Mondays to Fridays
8:00 a.m. to 5:00 pm
The following session day, the Justice called the attention of his
colleagues and the Bar Confidant was directed to verify the advertisement. It
turned out that the number belongs to Attorney X, who was then directed to
explain to the Court why he should not be disciplinary dealt with for the
improper advertisement.
Attorney X, in his answer, averred that (1) the advertisement was not
improper because his name was not mentioned in the ad; and (2) he could not
be subjected to disciplinary action because there was no complaint against him.
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Rule on Attorney Xs contention. [2003 bar exams]
A. A calling card, 2x 2in size, bearing his name in bold print, office,
residence and e-mail addresses, telephone and facsiline numbers.
ETHICAL- a lawyer, in making known his legal services shall use only
true, honest, dignified, and objective information or statement of facts.
UNETHICAL- the size of the card and the inclusion of the lawyers photo
in it smacks of commercialism
ETHICAL- the lawyer can no longer be held responsible for the action of
his client. However, it would be unethical if he knew about his clients intention
to publish and he did not stop it.
NO. A lawyer in making known his legal services should not use any false
fraudulent, misleading, deceptive, undignified or self-laudatory statements
regarding his qualifications and legal services. The claim that he can secure
annulment of marriage promptly is false and misleading and his claim that he is
an expert in legal separation is self-laudatory. Advertisement constitutes
improper solicitation and violates the sanctity of the institution of marriage
which the state should protect.
11. Atty. B, C and D recently inaugurated their law partnership. Among the
invited guests were clients, business executive and government officials
including a few members of the judiacy. Photographs were taken during the
inaugural affair which the law firm subsequently caused to be published in
major newspaper dailies. Was there anything ethically wrong in what the
partnership had done? [ 1997 Bar Exam]
Rule 2.03.A lawyer shall not do or permit to be done any act designed
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.
12. A businessman is looking for new retainer. He approached you and asked
for your schedule of fees or charges. He informed you of the professional fees he
is presently paying his retainer, which is actually lower than your rates. He said
that if your rates are lower, he would engage your services.
Will you lower your rates in order to get the client? Explain. [2005 Bar exam]
Rule 2.04. provides that A lawyer shall not charge rates lower than those
customarily prescribed, unless the circumstances so warrant.
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of the legal services your law firm is prepared to render, the general manager
gives you letter-proposal from another law firm in which its time-billing rates
and professional fees for various legal services are indicated. You are asked to
submit a similar letter-proposal stating your firms proposed fees. The airline
companys general manager also tells you that, if your proposal fees would at
least be 25 percent lower than those, proposed by the by the other firm, you will
get the companys legal business. How would you react to the suggestion? [1997
Bar exams]
I will emphasize to the general manager that the practice of law is a profession
and not a trade. Consequently, I will not propose a lower fee just for the sake of
competing with another firm, because such practice smacks of commercialism.
Rule 2.04. provides that A lawyer shall not charge rates lower than those
customarily prescribed, unless the circumstances so warrant.
CONCLUSION
Penalty
REFERENCES
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4. Ernesto Pineda, Legal Ethics
examination questions
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