Sie sind auf Seite 1von 15

LEGAL ETHICS

PRE-WEEK

PRE-WEEK

LEGAL ETHICS
CODE OF RESPONSIBILITY PROFESSIONAL
Q: What are the rules behind the prohibition against misleading or false names?
A: GENERAL RULE 1: All partners in firm name must be alive. EXCEPTION: When removal of the deceased partners name disturbs the client goodwill built through the years. The continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased. (Agpalo) Death of a partner does not extinguish the client-lawyer relationship with the law firm. (B.R. Sebastian Enterprises Inc. vs. Court of Appeals, 206 SCRA 28) GENERAL RULE 2: Filipino lawyers cannot practice law under the name of a foreign law firm. Firms may not use misleading names showing association with other firms to purport legal services of highest quality and ties with multinational business enterprise especially when such firm attached as an associate cannot legally practice law in the Philippines. (Dacanay v. Baker and McKenzie, 136 SCRA 349 (1985))

Q: What does it mean not to engage in unlawful, dishonest or immoral conduct?


A: An unlawful conduct is an act or omission which is against the law. Dishonesty involves lying or cheating. There is immoral or deceitful conduct when the act is willful, flagrant or shameless and which shows a moral indifference to the opinion of the good and respectable members of the community. Moral turpitude includes everything which is done contrary to justice, honesty, modesty, or good morals. (Barrios v. Martinez)

Q: How shall a lawyer avoid, end or settle a controversy?


A: The function of a lawyer is not only to conduct litigation but to avoid it where possible, by advising settlement or withholding suit. He must act as mediator for compromise rather than an instigator and conflict. What sometimes beclouds a lawyers judgment as to what is best for his client is his eye on the attorneys fees which are often considerably less when the cause is amicably settled. The problem of conflict of interests must be resolved against self-interest. (Agpalo)

Q: Why are lawyers prohibited soliciting legal business?

from

A: The legal practice is not a business. Unlike a businessman, the lawyer has: 1) Relation to the administration of justice involving sincerity, integrity and reliability as an officer of the court; 2) duty of public service; 3) relation to clients with the highest degree of fiduciary; 4) relation to colleagues at the bar characterized by candor, fairness and unwillingness to resort to business methods of advertising and encroachment on their practice, or dealing directly with their clients. (Agpalo) In relation to Rule 3.01, solicitation of any kind is prohibited; but some forms of advertisement may be allowed.

Q: What types of business advertisements are allowed in the legal profession?


A: THE MOST WORTHY AND EFFECTIVE ADVERTISEMENT possible is the establishment of a well-merited reputation for professional capacity and fidelity to trust. This cannot be forced, but must be the outcome of character and conduct. Allowable advertisement (The Exceptions to Rule 3.01): o an ordinary professional card o publication in reputable law list with brief biographical and other informative data which may include: 1. name 2. associates 3. address

LEGAL ETHICS

PRE-WEEK

4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

o o o

o o

phone numbers branches of law practiced birthday date admitted to the bar schools and dates attended degrees and distinctions public or quasi-public offices posts of honor legal authorships teaching positions associations legal fraternities and societies references and regularly represented clients must be published for that purpose publication of simple announcement of opening of law firm, change of firm listing in telephone directory but not under designation of special branch of law if acting as an associate (specializing in a branch of law), may publish a brief and dignified announcement to lawyers (law list, law journal) if in media, those acts incidental to his practice and not of his own initiative write articles for publication giving information upon the law (and not individual rights or advising through column/ TV. broadcast, lest such be considered indirect advertising) activity of an association for the purpose of legal representation

enhance the standards of the practice of law (Bar Matter 850, (2000))

Q: How often should the MCLE be taken?


A: Every three years and at least 36 hours of legal education activities.

Q: What are the obligations of a lawyer in taking the MCLE?


A: Obligations 1) To self for continued improvement of knowledge 2) To his profession for maintenance of high standards of legal education 3) To the public for social consciousness

Q: Who are exempted from the MCLE?


A: Exemptions 1. President, vice-president, cabinet members 2. Members of Congress 3. Chief Justice and incumbent and retired members of the judiciary 4. Chief state counsel, prosecutor and assistant secretaries of the Department of Justice 5. Solicitor General and assistants 6. Government Corporate Counsel, his deputies and assistants 7. Chairman and members of Constitutional Commissions 8. Ombudsman and his deputies 9. Heads of government agencies exercising quasi-judicial functions 10. Incumbent deans, bar reviewers and professors of law who have 10 year teaching experience 11. Officers and lecturers of the Philippine Judicial Academy 12. Governors and mayor 13. Those not in law practice (special exemption) 14. Those who have retired from the law practice (special exemption)

Q: What are the prohibited types of business advertisements in the legal profession?
A: Prohibited advertisement (Sec. 27, Canon of Professional Ethics): o Through touters of any kind whether allied real estate firms or trust companies advertising to secure the drawing of deeds or wills o Offering retainers in exchange for executorships or trusteeships to be influenced by the lawyer o Furnishing or inspiring newspaper comments concerning the manner of their conduct, the magnitude of the interests involved, the importance of lawyers position, and all other like self-laudation

Q: What is the duty of a public prosecutor?


A: It is upon the discretion of the prosecutor to decide what charge to file upon proper appreciation of facts and evidences. Fiscals are not precluded from exercising their sound discretion in investigation. His primary duty is not to convict but to see that justice is served. (People v. Pineda, 20 SCRA 748 (1967))

Q: What is the purpose of the Mandatory Continuing Legal Education (MCLE)?


A: To ensure that lawyers throughout their career keep abreast with law and jurisprudence, maintain the ethics of the profession and

LEGAL ETHICS

PRE-WEEK

Q: What are the prohibitions on employment after leaving government service?


A: No government employee, official, or officer may accept engagement or employment in connection with matter he had intervened in. Intervention includes any act of a person which has the power to influence the subject proceedings. GENERAL RULE: Practice of profession allowed immediately after leaving public service EXCEPTIONS: If lawyer had connection with any matter during his term, subject to a) One year prohibition if he had not intervened b) Permanent prohibition if he had intervened

Q: What constitutes unauthorized practice of law?


A: The phrase practice of law implies customarily or habitually holding oneself out to the public, as a lawyer, for compensation as source of livelihood or in consideration of his office. (People v. Villanueva, 14 SCRA 109 (1965))

Q: What are the only instances a lawyer can divide or stipulate to divide a fee for legal services with persons not licensed to practice law?
A: A lawyer shall not divide or stipulate to divide a fee for legal services with persons not licensed to practice law, except: (a) Where there is a pre-existing agreement with a partner or associate that, upon the latters death, money shall be paid over a reasonable period of time to his estate or to persons specified in the agreement (b) Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; or (c) Where a lawyer or law firm includes nonlawyer employees in a retirement plan even if the plan is based in whole or in part, on a profit sharing agreement

Q: What is a lawyers application to the bar?

duty

in

his

A: A lawyer shall be answerable for knowingly making a false statement or suppressing a material fact in connection with his application for admission to the bar. Aside from this, a lawyer should also volunteer information or cooperate in any investigation concerning alleged anomaly in the bar examination so that those candidates who failed therein can be ferreted out and those lawyers responsible therefor can be disbarred. (In re Parazo, 82 Phil. 230 [1948]).

Q: Are lawyers absolutely prohibited from giving criticisms to the court?


A: No. The rule allows such criticism so long as it is supported by the record or it is material to the case. A lawyers right to criticize the acts of courts and judges in a proper and respectful way and through legitimate channels is well recognized. The cardinal condition of all such criticism is that it shall be bona fide, and shall not spill over the wall of decency and propriety. (Agpalo)

Q: In what way should a lawyer not encroach on professional employment?


A: A lawyer should not steal the other lawyers client nor induce the latter to retain him by promise of better service, good result or reduced fees for his services. Neither should he disparage another, make comparisons or publicize his talent as a means to further his law practice. A lawyer should not, in the absence of the adverse partys counsel, interview the adverse party and question him as to the facts of the case even if the adverse party was willing to do so. Neither should he sanction the attempt of his client to settle a litigated matter with the adverse party without the consent nor knowledge of the latters counsel.

Q: How shall a lawyer submit grievances against a judge?


A: The Supreme Court has the power of administrative supervision over all courts and the personnel thereof. (Statutory basis: 1987 Constitution, Art. VIII, Sec. 6) The duty to respect does not preclude a lawyer from filing administrative complaints against erring judges or from acting as counsel for clients who have legitimate grievances against them.

LEGAL ETHICS

PRE-WEEK

The lawyer shall not file an administrative case until he has exhausted judicial remedies which result in a finding that the judge has gravely erred. (Agpalo)

Q: What is the rule on the prohibition on media-nuzzling?


A: Rule 13.02 states that A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party. RATIONALE: Newspaper publications regarding a pending or anticipated litigation may interfere with a fair trial, prejudice the administration of justice, or subject a respondent or a accused to a trial by publicity and create a public inference of guilt against him (Agpalo)

Q: What is forum shopping?


A: There is forum shopping when one: (1) Goes from one court to another in the hope of securing a favorable relief in one court, which another court has denied (2) File repetitious suits or proceeding in different courts concerning the same subject matter after one court has decided the suit with finality (3) Filing a similar case in a judicial court after receiving an unfavorable judgment from an administrative tribunal. Forum shopping is prohibited by Supreme Court Circular No. 28-91, which is now integrated in the Rules of Civil Procedure.

Q: In what instances can a lawyer decline to act as counsel de oficio or amici curiae?
A: The general rule is that a lawyer shall not decline to act as counsel de oficio or amici curiae, or to reject a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid. EXCEPTION: Except for serious and sufficient cause (Rule 14.02) Related rules: Rule 2.01. A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed. Rule 138, Sec. 20 (h), Duties of attorneys. It is the duty of an attorneynever to reject, for any consideration personal to himself, the cause of the defenseless or oppressed;

Q: What is the rationale behind the prohibition on forum shopping?


A: There is an affirmative duty of a lawyer to check against useless litigations. His signature in every pleading constitutes a certificate by him that to the best of his knowledge there is a good ground to support it and that it is not to interpose for delay. The willful violation of this rule may subject him to (1) appropriate disciplinary action or (2) render him liable for the costs of litigation. (Agpalo) While a lawyer owes entire devotion to the interest of his client and zeal in the defense of his clients rights, he should not forget that he is an officer of the court, bound to assist in the speedy and efficient administration of justice. (Agpalo) The reason is that a lawyer not only owes to his client the duty of fidelity but, more important, he owes the duty of good faith and honorable dealing to the judicial tribunal before which he practices his profession. (Agpalo) Excessive delay causes: 1. hardships 2. may force parties into unfair settlement 3. nurture a sense of injustice and breed cynicism about the administration of justice

Q: Differentiate a counsel de parte, counsel de oficio and amicus curiae.


A: A counsel de parte is a private counsel personally chosen by the client. A counsel de oficio is appointed or assigned by the court, from among such members of the bar in good standing who, by reason of their experience and ability, may adequately defend the accused. An amicus curiae is a friend of the court or a bystander and usually a counselor who interposes or volunteers information upon some matter of law in regard to which the judge is doubtful or mistaken (Agpalo).

LEGAL ETHICS

PRE-WEEK

Q: What do you mean by privileged communication?


A: An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him or his advice given thereon in the course of professional employment; nor can an attorneys secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity. Requisites of Privileged Communication (Rule 130, Section 24 (b) of the RRC): (1) There is an attorney-client relationship or a kind of consultancy requirement with a prospective client; (2) The communication was made by the client to the lawyer in the course of the lawyers professional employment; (3) The communication must be intended to be confidential. Exceptions to privilege (Aguirre): (1) When a lawyer is accused by the client and he needs to reveal information to defend himself (2) When the client discloses the intention to commit a crime or unlawful act. (Future crime)

NOTE: The test to determine whether there is a conflict of interest in the representation is probability, not certainty of conflict.

Q: What is the difference between a charging lien and a retaining lien?


A: A charging lien is an equitable right to have the fees and lawful disbursements due a lawyer for his services, secured to him out of a money judgment. Related statutory basis: Rule 138, Sec. 37. An attorney shall have a lien upon the funds, documents and papers of his client which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof. Requisites for Validity: (1) attorney-client relationship (2) lawful possession by lawyer of the clients funds, documents and papers in his professional capacity (3) unsatisfied claim for attorneys fees or disbursements A retaining lien is a right merely to retain the funds, documents and papers of his client which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid. RETAINING Passive lien. It cannot be actively enforced. It is a general lien. Lawful possession of funds, papers, documents, property belonging to client Covers only funds, papers, documents, and property in the lawful possession of the attorney by reason of his professional employment CHARGING Active lien. It can be enforced by execution. It is a special lien. Securing of a favorable money judgment for client

Q: What is the rule on conflict of interests?


A: GENERAL RULE: A lawyer may not represent two opposing parties at any point in time. A lawyer need not be the counsel-of-record of either party. He does not have to publicly hold himself as the counsel of the adverse party nor make efforts to advance the adverse partys conflicting interests of record. It is enough that the counsel had a hand in the preparation of the pleading of one party. EXCEPTION: When the parties agree, and for amicable settlement (Agpalo) Tests to determine conflict of interest: (1) when there are conflicting duties (2) when the acceptance of the new relations invites or actually lead to unfaithfulness or double-dealing to another client (3) when the attorney will be called upon to use against his first client any knowledge acquired in the previous employment

Nature

Basis

Coverage

Covers all judgments for the payment of money and executions issued in pursuance of such judgment

LEGAL ETHICS

7 RETAINING As soon as the lawyer gets possession of the funds, papers, documents, property Client need not be notified to make it effective CHARGING As soon as the claim for attorneys fees had been entered into the records of the case Client and adverse party need to notified to make it effective Generally, it is exercisable only when the attorney had already secured a favorable judgment for his client

PRE-WEEK

Effectivity

Rule 19.02 requires the lawyer to terminate his relationship with the client in the event the latter fails or refuses to rectify the fraud. (Agpalo)

Q: Differentiate an ordinary attorneys fee from a quantum meruit-based attorneys fee.


A: An attorneys fee is the reasonable compensation paid to a lawyer for the legal services he has rendered to a client. The basis of this compensation is the fact of enjoyment by the client. Quantum Meruit means as much as a lawyer deserves. Its essential requisite is acceptance of the benefits by one sought to be charged for services rendered under circumstances as reasonable to notify him that lawyer expects compensation. Quantum Meruit is authorized when: o there is no express contract for attorneys fees agreed upon between the lawyer and the client; o when although there is a formal contract of attorneys fees, the stipulated fees are found unconscionable or unreasonable by the court; o when the contract for attorneys fees is void due to purely formal matters or defects of execution; o when the counsel, for justifiable cause, was not able to finish the case to its conclusion; o when lawyer and client disregard the contract of attorneys fees o when there is a contract but no stipulation as to attorneys fees Guides in Determining Attorneys Fees in Quantum Meruit Basis (1) Time spent and Extent of the Services Rendered A lawyer is justified in fixing higher fees when the case is so complicated and requires more time and efforts to finish it. (2) Importance of Subject Matter The more important the subject matter or the bigger value of the interest or property in litigation, the higher is the attorneys fee. (3) Novelty and Difficulty of Questions Involved When the questions in a case are novel and difficult, greater efforts, deeper study and research, are bound to burn the lawyers time and stamina considering that there are no local precedents to rely upon. (4) Skill demanded of the Lawyer The totality of the lawyers experience provides him the skill and competence admired in lawyers.

Notice

Applicability

May be exercised before judgment or execution, or regardless thereof

Q: When is a lawyer liable to his client for negligence?


A: GENERAL RULE: Client is bound by attorneys conduct, negligence and mistake in handling case or in management of litigation and in procedural technique, and he cannot be heard to complain that result might have been different had his lawyer proceeded differently. EXCEPTIONS: 1) Where it results in outright deprivation of clients liberty or property or where interest of justice so requires 2) Where error by counsel is purely technical which does not affect substantially clients cause 3) Ignorance, incompetence or inexperience of lawyer is so great and error so serious that client, who has good cause is prejudiced and denied a day in court 4) Gross negligence of lawyer 5) Lack of acquaintance with technical part of procedure.

Q: What should a lawyer do in case that he finds that his client has perpetuated fraud?
A: A lawyer should not allow his client to perpetuate fraud. However, the lawyer shall not volunteer the information about the clients commission of the fraud to anyone for that will run counter to his duty to maintain at all times the clients confidences and secrets. (Canon 21)

LEGAL ETHICS

PRE-WEEK

Q: What is the difference between a champertous contract and a contingent contract?


A: A champertous contract is one where the lawyer stipulates with his client that upon the prosecution of the case, former will bear all the expenses for the recovery of things or property being claimed, and the latter pays only upon successful litigation. This kind of contract is void for being against public policy. A contingent contract is an agreement in which the lawyers fee, usually a fixed percentage of what may be recovered in the action, is made to depend upon the success in the effort to enforce or defend the clients right. It is a valid agreement. It is different from a champertous contract in that the lawyer does not undertake to shoulder the expenses of the litigation. CONTINGENT Contingent fee is payable in cash. Lawyers do not undertake to pay all expenses of litigation Not prohibited CHAMPERTOUS Payable in kind only Lawyers undertake to pay all expenses of litigation Void

either in person or through the mediation of another, the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions; this prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession.

Q: When can the client terminate the services of his/her counsel?


A: GENERAL RULE: The client has the right to terminate at any time with or without just cause. LIMITATIONS: Client cannot deprive counsel of right to be paid services if dismissal is without cause Client cannot discharge counsel as an excuse to secure repeated extensions of time Notice of discharge is required for both court and adverse party

Q: In what cases may a lawyer withdraw his services from a client?


A: Rule 22.01 - A lawyer may withdraw his services in any of the following case: o When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling; o When the client insists that the lawyer pursue conduct violative of these canons and rules; o When his inability to work with co-counsel will not promote the best interest of the client; o When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively; o When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement; o When the lawyer is elected or appointed to public office; and o Other similar cases. Conditions for the Substitution of Counsel 1) Written request for substitution 2) Written consent of client 3) Written consent of the attorney to be substituted or in the absence, proof of service of notice of said motion to the attorney to be substituted

Q: What are the factors considered in computing attorneys fees?


A: Factors of the value (Rule 138, Sec, 24) 1) the importance of the subject matter of controversy; 2) the extent of the services rendered; and 3) the professional standing of the attorney. Additionally, the court is not bound by the opinion of attorneys as expert witness as to proper compensation and that written contract shall control the amount paid unless found by the court to be unconscionable or reasonable. According to jurisprudence, the court may also take into consideration the clients capacity to pay.

Q: What are the limitations imposed on judges and lawyers regarding the purchase of properties under litigation?
A: According to Art. 1491 of the Civil Code, Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers and employees connected with the administration of justice, cannot acquire by purchase, even at a public or judicial auction,

LEGAL ETHICS

PRE-WEEK

Q: What should a lawyer do after withdrawing his services or having his services substituted by another?
A: Rule 22.02 - A lawyer who withdraws or is discharged shall, subject to a retainer lien, immediately turn over all papers and property to which the client is entitled, and shall cooperate with his successor in the orderly transfer of the matter, including all information necessary for the proper handling of the matter.

Q: What is the lawyers oath?


A: I, _____, do solemnly swear that I will maintain allegiance to the Republic of the Philippines. I will support the Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit nor give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the court as to my clients; and I impose upon myself this obligation voluntarily, without any mental reservation or purpose of evasion. So help me God.

Q: What are the requirements admission to practice law?

for

A: A person is admitted to practice law in the Philippine if s/he is a Filipino citizen, who is a resident of the Philippines, at least 21 years of age, of good moral character, a holder of a college degree and a graduate of a law school approved and recognized by the Secretary of Education, and one who has successfully taken and passed the bar examinations and taken the lawyers oath.

Q: What are the qualifications for the practice of law?


A: GENERAL RULE: Any person duly admitted as member of the Bar and who is in good and regular standing is qualified to practice law. EXCEPTIONS: (Rule 138) (1) Any LAW STUDENT who has successfully completed the third year of the prescribed 4 year law curriculum and who is undergoing law student practice under the schools clinical legal education program. (2) AGENT a party in a civil suit may conduct his litigation either personally or by attorney unless the party is a juridical person. (Allowed in MTC, RTC, appellate court.) for a criminal case, in a locality where a lawyer is unavailable, a judge may appoint a non-lawyer who is a resident of the province, and of good repute for probity and ability to defend the accused. (Allowed up to MTC-level only) (3) SELF-REPRESENTAION- A person may represent himself before any court. He is bound by the same rules in conducting the trial of his case. He cannot, after judgment, claim that he was not properly represented.

Q: What is an indigent litigant?


A: Indigent litigants are those (1) whose gross income and that of their immediate family do not exceed an amount double the monthly minimum wage of an employee and (2) who do not own real property with a fair market value as stated in the current tax declaration of more than P300,000 shall be exempt from payment of legal fees (Bar Matter No. 2012)

Q: What is the proposed requirement on Mandatory Legal Aid Service for Practicing Lawyers?
A: Every practicing lawyer is required to render a minimum of sixty (60) hours of free legal aid services to indigent litigants in a year. Said 60 hours shall be spread within a period of twelve (12) months, with a minimum of five (5) hours of free legal aid services each month. He shall coordinate with the Clerk of Court for cases where he may render free legal aid service and shall be required to secure and obtain a certificate from the Clerk of Court attesting to the number of hours spent rendering free legal aid services in a case. (Bar Matter 2012)

LEGAL ETHICS

10

PRE-WEEK

Q: What are the fourfold duties of a lawyer?


A: The duties of an attorney, impressed with the solemnity of his oath, may be classified into those which he owes to the court, to the public, to the bar, and to his client. As an officer of the court, an attorney is subject to the disciplinary authority of the court and to its orders and directives with respect to his relation to the court as well as to his client. He is continually accountable to the court for the manner in which he exercises his privilege to practice law A lawyers duty to this client dictates that he faithfully, honestly and conscientiously represent the interest of his client. A lawyers duty to the legal profession imposed upon him a relation to colleagues at the bar characterized by candor, fairness, and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients. Lastly, the practice of law is a profession, a form of public trust, the performance of which is entrusted only to those who are qualified and who possess good moral character. The basic ideal of the profession is to render public service and secure justice for those who seek its aid. (Agpalo)

(1) Strictly personal- It involves mutual trust and confidence of the highest degree, irrespective of whether the client is a private person or a government functionary. Since it is a personal relation, a court or administrative tribunal cannot but recognize its creation on the faith of the clients word. It should not be established as the result of pressure or deception. (2) Fiduciary- The relation of attorney and client is highly fiduciary in nature and of a very delicate, exacting and confidential character. It demands of an attorney an undivided allegiance, a conspicuous and high degree of good faith, disinterestedness, candor, fairness, loyalty, fidelity and absolute integrity in all his dealings and transactions with his clients and an utter renunciation of every personal advantage conflicting in any way, directly or indirectly, with the interest of his client.

Q: Are lawyers prohibited from practicing a dual profession or partnership?


A: NO. GENERAL RULE: Exercise of dual profession is not prohibited but a lawyer must make it clear when he is acting as a lawyer and when he is otherwise, especially in occupations related to the practice of law. Reason: certain ethical considerations may be operative in one profession and not in the other. (Agpalo) A lawyer is not barred from dealing with his client but the business transaction must be characterized with utmost honesty and good faith. Business transactions between an attorney and his client are disfavored and discouraged by policy of law because by virtue of a lawyers office, he is an easy position to take advantage of the credulity and ignorance of his client. Thus, there is no presumption of innocence or improbability of wrongdoing in favor of lawyers. (Nakpil v. Valdez, 286 SCRA 758 (1998))

Q: What is the purpose of legal aid, according to the IBP?


A: LEGAL AID IS NOT A MATTER OF CHARITY. It is a means for the correction of social imbalance that may and often do lead to injustice, for which reason it is a public responsibility of the Bar. The spirit of public service should, therefore, underlie all legal aid offices. The same should be administered to indigent and deserving members of the community on all cases, matters and situations in which legal aid may be necessary to forestall an injustice. (IBP Handbook, Guidelines Governing the Establishment and Operation of the Legal Aid Office, Art. 1, Sec. 1)

Q: What is the duty of a counsel when a client is believed to be guilty in a criminal case?
A: The law makes it the lawyers duty never to reject, for any consideration personal to himself, the cause of the defenseless or the oppressed. Rule 14.01 complements it by requiring that: A lawyer shall not decline to represent a person solely on account of his opinion regarding the guilt of said person.

Q: What is the character of the lawyerclient relationship and how is it created?


A: The relation of attorney and client is strictly personal and highly confidential and fiduciary.

LEGAL ETHICS

11 o o o

PRE-WEEK

Regardless of his personal feeling, a lawyer should not decline representation because a client or a cause is unpopular or community reaction is adverse. The law presumes an accused to be innocent, and he is entitled to acquittal unless his guilt is proved beyond reasonable doubt. (Agpalo)

To set an example or warning for the other members of the bar; To safeguard the administration of justice from dishonest and incompetent lawyers; To protect the public;

Q: What are the grounds for disbarment?


A: Grounds for Disbarment: 1) Deceit 2) Malpractice, or other gross misconduct in office any malfeasance or dereliction of duty committed by a lawyer 3) Grossly immoral conduct 4) Conviction of a crime involving moral turpitude 5) Violation of oath of office 6) Willful disobedience of any lawful order of a superior court 7) Corruptly or willfully appearing as an attorney for a party to case without an authority to do so Broadly speaking, the grounds for disbarment or suspension of a lawyer consist of those acts of misconduct before and after his admission to practice. But this enumeration is not exclusive May be disciplined or suspended for ANY misconduct in his professional or private capacity which shows him to be wanting in moral character

DISCIPLINE OF LAWYERS; NOTARIAL PRACTICE


Q: In the discipline of lawyers, what is the nature of suspension and disbarment proceedings?
A: Disciplinary proceedings against lawyers are sui generis: neither purely civil nor purely criminal. It is notand does not involvea trial of an action or a suit, but is rather an investigation by the Court in the conduct of its officers. Not being intended to inflict punishment, it is no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor. x x x Public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. (In Re: Almacen, supra) Nature of Proceedings: o Neither a civil action nor a criminal proceeding; o Sui generis, it is a class of its own since it is neither civil nor criminal Confidential in nature o Defense of double jeopardy is not available o Can be initiated by the SC, motu proprio, or by the IBP. It can be initiated without a complaint. o Can proceed regardless of interest of the complainants o Imprescriptible o It is itself due process of law

Q: Who are the officers authorized to investigate disbarment cases?


A: Supreme Court IBP through its Commission on Discipline or authorized investigators Office of the Solicitor General Bar

Q: What is the nature of the punishment of contempt of court?


A: It is exercised on preservative and not on vindictive principles and on corrective rather than the retaliatory idea of punishment. It is criminal in nature. The power to punish for contempt is inherent in all courts. It is essential in the observance of order in judicial proceedings and to enforce judgment, orders and writs.

Q: What are the objectives of suspension and disbarment?


A: Objectives of Suspension and Disbarment: o To compel the attorney to deal fairly and honestly with his clients; o To remove from the profession a person whose misconduct has proved him unfit to be entrusted with the duties and responsibilities belonging to the office of an attorney; o To punish the lawyer;

LEGAL ETHICS

12

PRE-WEEK

Q: What are the kinds of contempt?


A: Kinds of Contempt Direct Contempt Consists of misbehavior in the presence of or near a court or judge as to interrupt or obstruct the proceedings before the court or the administration of justice. Indirect or Constructive Contempt One committed away from the court involving disobedience of or resistance to a lawful writ, process, order, judgment or command of the court, tending to belittle, degrade, obstruct, interrupt or embarrass the court. Civil contempt Failure to do something ordered by the court which is for the benefit of the party. Criminal contempt Consists of any conduct directed against the authority or dignity of the court.

the court, in which case a severer sanction, such as suspension from the practice of law, may be warranted. (Agpalo)

Q: In what way can lawyers be civilly or criminally liable?


A: CIVIL LIABILITY Client is prejudiced by lawyers negligence and misconduct. Breach of fiduciary obligation Civil liability to third persons Libelous words in pleadings; violation of communication privilege Liability for costs of suit (treble costs) when lawyer is made liable for insisting on clients patently unmeritorious case or interposing appeal merely to delay litigation CRIMINAL LIABILITY Prejudicing client through malicious breach of professional duty Revealing client secrets Representing adverse interests Introducing false evidence Misappropriating clients funds (estafa) Libel except if statements are connected with the relevant, pertinent, and material to the cause in hand or the subject of the inquiry

Q: What acts of a lawyer constitute contempt?


A: Acts of a Lawyer Constituting Contempt o Misbehavior as officer of court o Disobedience or resistance to court order o Abuse or interference with judicial proceedings o Obstruction in administration of justice o Misleading courts o Making false allegations, criticisms, insults, veiled threats against the courts o Aiding in unauthorized practice of law (suspended or disbarred) o Unlawful retention of clients funds o Advise client to commit contemptuous acts

Q: What is a notary public and what is his/her duty and purpose?


A: A NOTARY PUBLIC or a notary is any person commissioned to perform official acts, acknowledgements; oaths and affirmations; jurats; signature witnessing; copy certifications; and any other act authorizes in the rules Purpose To verify the personal appearance of affiant and the genuineness of signature To authenticate documents and verify due execution, making the documents admissible as evidence without proof of authenticity. Notarization is not an empty, meaningless, routinary act. It is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries publicA notarial document is by law entitled to full faith and credit upon its face. Courts, administrative agencies and the public at

Q: What constitutes negligence abandonment by a lawyer?

or

A: The failure to exercise due diligence or the abandonment if the clients cause makes the lawyer unworthy of the trust which the client has reposed in him. It is a breach of his undertaking with his client. To warrant suspension or disbarment, however, the negligence or carelessness in the performance of duty should not only be gross in character but should have caused material prejudice to clients interest as well. Mere negligence or inattention which produces no pecuniary damage to the client may only justify reprimand or censure (Alcala v. De Vera) except when the breach of duty of client also constitutes a gross violation of obligation to

LEGAL ETHICS

13

PRE-WEEK

large must be able to rely upon the acknowledgement executed by a notary public. (Baylon v. Almo, A.C. No. 6962, June 25, 2008)

CODE OF JUDICIAL CONDUCT


Q: How can the judiciary remain independent or unaffected by media and influence?
A: Mass media has its duty to fearlessly but faithfully inform the public about events and persons. However, when a case has received wide and sensational publicity, the trial court should be doubly careful not only to be fair and impartial but also to give the appearance of complete objectivity in its handling of the case. (Go v. Court of Appeals, 206 SCRA 165)

Q: What are the qualifications of a notary public?


A: A Notary Public must be a citizen of the Philippines, over 21 years of age, a resident of the Philippines for at least one year and maintains a regular place of work or business, a member of the Philippine Bar in good standing, with clearances from the Bar Confidant of the SC and the IBP and must have no conviction for any crime involving moral turpitude. (Hence all notaries are lawyers but not all lawyers are notaries.)

Q: What is expected of a judges conduct whether in public and in private?


A: Judges shall ensure that not only is their conduct above reproach, but that it is perceived to be so in the view of a reasonable observer. (Canon 2, Sec. 1) Respondent judge was also at fault for his shortness of temper and impatience, contrary to the duties and restriction imposed upon him by reason of his office. He failed to observe the proper decorum expected of judicial officers. Judicial officers are given contempt powers so that they can remind counsels of their duties in court without being arbitrary, unreasonable or unjust. Respondent should have cited the complainant in contempt of court instead of throwing tantrums by banging his gavel loudly and unceremoniously walking out of the courtroom. Although respondent had a valid explanation for carrying a gun, his act of carrying it in plain view of the lawyers (including the complainant) and considering what just happened, cannot be taken as an innocent gesture. It was calculated to instill fear and intimidate the complainant. Respondent's behavior constitutes grave misconduct. A judge's conduct should be free from the appearance of impropriety not only in his official duties but in his everyday life. One who lives by the precept that might is right is unworthy to be a judicial officer. (Romero v. Valle (1987))

Q: What is a notarial commission?


A: A notarial commission is granted by an executive judge after petition of the lawyer, and is good for two years. Every petition undergoes a hearing and approved after petition is proven sufficient in form and substance, petitioner proves allegations in petition, petitioner establishes to the satisfaction of the court that he has read and understood the Rules on Notarial Practice.

Q: What can be notarized?


A: GENERAL RULE: A notary can notarize any document, upon request of affiant. Notarization of document must be at the notary publics regular place of work. Exceptions: (1) in public offices, convention halls and other places where oaths of office are administered (2) public function areas in hotels and similar areas used for the signing of instruments or documents requiring notarization (3) hospitals and other medical institutions where a part to an instrument is confined for treatment (4) any place where a party to the instrument requiring notarization is under detention *Irregularity in place - if it is outside of his territorial jurisdiction

LEGAL ETHICS

14

PRE-WEEK

Q: What are the grounds for disqualification or inhibition from proceedings?


A: Canon 3, sec. 5 Judges shall disqualify themselves from participating in any proceedings in which they are unable to decide the matter impartially or in which it may appear to a reasonable observer that they are unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where: o The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings; o The judge previously served as a lawyer or was a material witness in the matter in controversy; o The judge, or a member of his or her family, has an economic interest in the outcome of the matter in controversy; o The judge served as executor, administrator, guardian, trustee or lawyer in the case or matter in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein; o The judge's ruling in a lower court is the subject of review; o The judge is related by consanguinity or affinity to a party litigant within the sixth civil degree or to counsel within the fourth civil degree; or o The judge knows that his or her spouse or child has a financial interest, as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceedings Under the Rules of Court, the grounds for Mandatory or Compulsory Disqualification (Rule 131, ROC) are: 1) He or his wife or his child is pecuniarily interested as heir, legatee, creditor or otherwise; 2) Relation to either party within the sixth degree of consanguinity or affinity or to counsel within the 4th civil degree 3) When he has been an executor, guardian, administrator, trustee or counsel; 4) When he has presided in an inferior court where his ruling or decision is subject to review.

However, a judge may also voluntarily inhibit himself for just and valid reasons other than those mentioned above. (Rule 137, Sec. 1) This leaves the discretion to the judge to decide for himself questions as to whether he will desist from sitting in case for other just and valid reasons with only his conscience to guide him, unless he cannot discern for himself his inability to meet the test of the cold neutrality required of him, in which event the appellate court will see to it that he disqualifies himself. A decision to disqualify himself is not conclusive and his competency may be determined on application for mandamus to compel him to act. Judges decision to continue hearing a case in which he is not legally prohibited from trying notwithstanding challenge to his objectivity may not constitute reversible error. DISQUALIFICATION Specific and exclusive INHIBITION No specific grounds BUT there is a broad basis for such, i.e., good, sound ethical grounds The matter is left to the sound discretion of the judge

Basis

Role of the judicial officer

Judicial officer has no discretion to sit or try the case

Q: How shall a judge ensure equality in the performance of his duty?


A: Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office. (Canon 5) This is a new Canon not found in the previous two Philippine Codes of Judicial Conduct. It expands the measures to promote equality required by international human rights agreements. Those agreements advocate a universal application of law and nondiscrimination between the sexes. (PhilJa) Sec. 1. Judges shall be aware of, and understand, diversity in society and differences arising from various sources, including but not limited to race, color, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status and other like causes.

LEGAL ETHICS

15

PRE-WEEK

Sec. 2. Judges shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice towards any person or group on irrelevant grounds. Sec. 3. Judges shall carry out judicial duties with appropriate consideration for all persons, such as the parties, witnesses, lawyers, court staff and judicial colleagues, without differentiation on any irrelevant ground, immaterial to the proper performance of such duties. Sec. 4. Judges shall not knowingly permit court staff or others subject to his or her influence, direction or control to differentiate between persons concerned, in a matter before the judge, on any irrelevant ground. Sec. 5. Judges shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on irrelevant grounds, except such as are legally relevant to an issue in proceedings and may be the subject of legitimate advocacy.

Q: What are the prerequisites to the due performance of judicial office?


A: Competence and diligence are prerequisites to the due performance of judicial office. (Canon 6) The judicial duties of a judge take precedence over all other activities (sec.1). Judges shall devote their professional activity to judicial duties, which include not only the performance of judicial functions and responsibilities in court and the making of decisions, but also other tasks relevant to the judicial office or the courts operations (sec. 2). In the instant case, respondent judge impeded the speedy disposition of cases by his successor on account of missing records of cases. This fact reflects an inefficient and disorderly system in the recording of cases assigned to his sala. Proper and efficient court management is as much the judge's responsibility for the Court personnel are not the guardians of a Judge's responsibilities. A judge is expected to ensure that the records of cases assigned to his sala are intact. There is no justification for missing records save fortuitous events. The loss of not one but eight records is indicative of gross misconduct and inexcusable negligence unbecoming of a judge. (Longboan v. Polig (1990))