LEGAL ETHICS UPDATES

by:
Prof. Arturo M. de Castro
1. (a) A lawyer may not represent conflicting interests of a client,
although the cases are not related.
It is well-settled that a lawyer is barred from representing conflicting
interests except by written consent of all concerned given after a full
disclosure of the facts. Such prohibition is founded on principles of public
policy and good taste as the nature of the lawyer-client relations is one of
trust and confidence of the highest degree. Lawyers are expected not only
to keep inviolate the client's confidence, but also to avoid the appearance
of treachery and double-dealing for only then can litigants be encouraged
to entrust their secrets to their lawyers, which is of paramount importance
in the administration of justice.
One of the tests of inconsistency of interests is whether the
acceptance of a new relation would prevent the full discharge of the
lawyer's duty of undivided fidelity and loyalty to the client or invite
suspicion of unfaithfulness or double-dealing in the performance of that
duty.
As we expounded in the recent case of Quiambao vs. Bamba (A.C.
No. 6708, August 25, 2005):
The proscription against representation of conflicting interests
applies to a situation where the opposing parties are present clients
in the same action or in an unrelated action. It is of no moment that
the lawyer would not be called upon to contend for one client that
which the lawyer has to oppose for the other client, or that there
would be no occasion to use the confidential information acquired
from one to the disadvantage of the other as the two actions are
wholly unrelated. It is enough that the opposing parties in one case,
one of whom would lose the suit, are present clients and the nature
or conditions of the lawyer's respective retainers with each of them
would affect the performance of the duty of undivided fidelity to both
clients. (GONZALES vs. CABUCANA, A.C. No. 6836. January 23,
2006)
(b) May a lawyer take up the cause of the adversary of the party who had
sought and obtained legal advice from his law firm?
Ans: No. As we explained in the case of Hilado vs. David (84 Phil. 569
[1949]):
xxx [W]e xxx can not sanction his taking up the cause of
the adversary of the party who had sought and obtained
legal advice from his firm; this, not necessarily to prevent
any injustice to the plaintiff but to keep above reproach the
honor and integrity of the courts and of the bar. Without
condemning the respondent's conduct as dishonest, corrupt,
or fraudulent, we do believe that upon the admitted facts it is

highly inexpedient. It had the tendency to bring the

profession, of which he is a distinguished member, "into
public disrepute and suspicion and undermine the integrity of
justice." (Ibid)
(c) Is good faith a defense for conflict of interest?
Ans: No. The claim of respondent that he acted in good faith and with
honest intention will also not exculpate him as such claim does not
render the prohibition inoperative. (Ibid)
2. Conviction for frustrated homicide, which involves moral turpitude, is a
ground for disbarment.
All told, Atty. Dizon has shown through this incident that he is wanting
in even a basic sense of justice. He obtained the benevolence of the trial
court when it suspended his sentence and granted him probation. And yet,
it has been four years since he was ordered to settle his civil liabilities to
complainant. To date, respondent remains adamant in refusing to fulfill
that obligation. By his extreme impetuosity and intolerance, as shown by
his violent reaction to a simple traffic altercation, he has taken away the
earning capacity, good health, and youthful vigor of his victim. Still, Atty.
Dizon begrudges complainant the measly amount that could never even
fully restore what the latter has lost.
Conviction for a crime involving moral turpitude may relate, not to the
exercise of the profession of lawyers, but certainly to their good moral
character. Where their misconduct outside of their professional dealings is
so gross as to show them morally unfit for their office and unworthy of the
privileges conferred upon them by their license and the law, the court may
be justified in suspending or removing them from that office.
We stress that membership in the legal profession is a privilege
demanding a high degree of good moral character, not only as a condition
precedent to admission, but also as a continuing requirement for the
practice of law. Sadly, herein respondent has fallen short of the exacting
standards expected of him as a vanguard of the legal profession.
(SORIANO vs. DIZON, A.C. No. 6792. January 25, 2006)
3. A judge who demands and receives money from litigants before his Court
for a favorable judgment is guilty of Direct Bribery and gross misconduct
that deserves DISMISSAL.
The Court has consistently imposed the penalty of dismissal on
magistrates found guilty of bribery. In Office of the Court Administrator
v. Bautista, the Court provides the rationale for imposing the severest
penalty in such cases, as follows:
Bribery is classified as a serious charge punishable by, inter
alia, dismissal from the service with forfeiture of benefits and
disqualification from re-employment or appointment in any public
office including government-owned or controlled corporations (NBI
v. Reyes, 326 SCRA 109 [2000]). It constitutes a serious
misconduct in office, which this Court condemns in the strongest
possible terms. It is this kind of gross and flaunting misconduct on
the part of those who are charged with the responsibility of
administering the law and rendering justice that so quickly and
Prof. Arturo M. de Castro
Legal ethics updates

3/26/2016

surely erodes the respect for the law and the courts without which
government cannot continue and that tears apart the very bonds of
our polity. (Calilung v. Suriaga, 339 SCRA 340 [2000] citing Haw
Tay v. Singayao, 154 SCRA 107 [1987]). (RAFOLS, JR. vs.
JUDGE DIZON, A.M. No. RTJ-98-1426. January 31, 2006)
4. Asking money from the client in relation to a pending VISA application is
gross misconduct that constitutes a ground for disbarment.
Respondent's act of asking money from complainant in consideration
of the latter's pending application for visas is violative of Rule 1.01 of the
Code of Professional Responsibility, which prohibits members of the Bar
from engaging or participating in any unlawful, dishonest, or deceitful acts.
Moreover, said acts constitute a breach of Rule 6.02 of the Code which
bars lawyers in government service from promoting their private interest.
Promotion of private interest includes soliciting gifts or anything of
monetary value in any transaction requiring the approval of his office or
which may be affected by the functions of his office. Respondent's conduct
in office betrays the integrity and good moral character required from all
lawyers, especially from one occupying a high public office. A lawyer in
public office is expected not only to refrain from any act or omission which
might tend to lessen the trust and confidence of the citizenry in
government; he must also uphold the dignity of the legal profession at all
times and observe a high standard of honesty and fair dealing. Otherwise
said, a lawyer in government service is a keeper of the public faith and is
burdened with high degree of social responsibility, perhaps higher than his
brethren in private practice. (HUYSSEN vs. GUTIERREZ, A.C. No. 6707.
March 24, 2006)
5. What are the grounds for disbarment or suspension of a lawyer?
Ans: Under Section 27, Rule 138 of the Revised Rules of Court, a
member of the Bar may be disbarred or suspended on any of the
following grounds: (1) deceit; (2) malpractice or other gross
misconduct in office; (3) grossly immoral conduct; (4) conviction
of a crime involving moral turpitude; (5) violation of the lawyers
oath; (6) willful disobedience of any lawful order of a superior
court; and (7) willfully appearing as an attorney for a party
without authority.
Rule 1.01, Canon 1 of the Code of Professional
Responsibility provides that A lawyer shall not engage in
unlawful, dishonest, immoral or deceitful conduct. (Ronquillo vs.
Cezar, 491 SCRA 5, June 16, 2006)
6. Does misconduct refer exclusively to the performance of a lawyers
professional duties?
Ans: No. Conduct, as used in this rule, does not refer exclusively to the
performance of a lawyers professional duties. This Court has made
clear in a long line of cases that a lawyer may be disbarred or
suspended for misconduct, whether in his professional or private
capacity, which shows him to be wanting in moral character,
honesty, probity and good demeanor, or unworthy to continue as an
officer of the court. (Ibid)

Prof. Arturo M. de Castro

Legal ethics updates

3/26/2016

7. Donton vs. Tansingco (493 SCRA 1 [June 27, 2006])

Facts:

The respondent attorney prepared an Occupancy Agreement

recognizing the ownership of a house and lot of Mr. Duane O.
Stier, an American citizen disqualified to own land in the
Philippines, despite the transfer of title in the name of Peter
Donton, a Filipino citizen.

Issue:

Is the respondent guilty of malpractice?

Ans: Yes.
THE RULING OF THE COURT
The Court finds respondent liable for violation of Canon 1
and Rule 1.02 of the Code.
A lawyer should not render any service or give advice to any
client which will involve defiance of the laws which he is bound
to uphold and obey. A lawyer who assists a client in a dishonest
scheme or who connives in violating the law commits an act
which justifies disciplinary action against the lawyer.
By his own admission, respondent admitted that Stier, a U.S.
citizen, was disqualified from owning real property. Yet, in his
motion for reconsideration, respondent admitted that he caused
the transfer of ownership to the parcel of land to Stier.
Respondent, however, aware of the prohibition, quickly rectified
his act and transferred the title in complainants name. But
respondent provided some safeguards by preparing several
documents, including the Occupancy Agreement, that would
guarantee Stiers recognition as the actual owner of the property
despite its transfer in complainants name. In effect, respondent
advised and aided Stier in circumventing the constitutional
prohibition against foreign ownership of lands by preparing said
documents.
Respondent had sworn to uphold the Constitution. Thus, he
violated his oath and the Code when he prepared and notarized
the Occupancy Agreement to evade the law against foreign
ownership of lands. Respondent used his knowledge of the law
to achieve an unlawful end. Such an act amounts to malpractice
in his office, or which he may be suspended.
In Balinon V. De Leon, respondent Atty. De Leon was
suspended from the practice of law for three years for preparing
an affidavit that virtually permitted him to commit concubinage.
In In re: Santiago, respondent Atty. Santiago was suspended
from the practice of law for one year for preparing a contract
which declared the spouses to be single again after nine years
of separation and allowed them to contract separately
subsequent marriages.
WHEREFORE, we find respondent Atty. Emmanuel O.
Tansingco GUILTY of violation of Canon 1 and Rule 1.02 of the
Code of Professional Responsibility. Accordingly, we SUSPEND
Prof. Arturo M. de Castro
Legal ethics updates

3/26/2016

respondent Atty. Emmanuel O. Tansingco from the practice of

law for SIX MONTHS effective upon finality of this Decision.
Let copies of this Decision be furnished the Office of the Bar
Confidant to be appended to respondents personal record as
an attorney, the Integrated Bar of the Philippines, the
Department of Justice, and all courts in the country for their
information and guidance.
SO ORDERED. (Donton vs. Tansingco, 493 SCRA 5-7
[June 27, 2006])
8. What is the sanction to a lawyer who files clearly unfounded and baseless
complaint intended to harass a Justice of the Court of Appeals or any
Judge of the lower Courts filed in connection with a case in court?
Ans: As championat other times tormentorof trial and appellate
judges, this Court must be unrelenting in weeding the Judiciary of
unscrupulous judges, but it must also be quick in dismissing
administrative complaints which serve no other purpose than to
harass them. Thus, while it is our duty to investigate and determine
the truth behind every matter in complaints against judges and
other court personnel, it is also our duty to see to it that they are
protected and exonerated from baseless administrative charges.
The Court will not shirk from its responsibility of imposing discipline
upon its magistrates, but neither will it hesitate to shield them from
unfounded suits that serve to disrupt rather than promote the
orderly administration of justice.
Complainant ought to be reminded that the Court has
recognized the proliferation of unfounded or malicious
administrative or criminal cases against members of the Judiciary
for purposes of harassment, and issued A.M. No. 03-10-01-SC
which took effect on November 3, 2003. It reads in part:
1. If upon an informal preliminary inquiry by the Office of the
Court Administrator, an administrative complaint against any Justice
of the Court of Appeals or Sandiganbayan or any Judge of the
lower courts filed in connection with a case in court is shown to be
clearly unfounded and baseless and intended to harass the
respondent, such a finding should be included in the report and
recommendation of the Office of the Court Administrator. If the
recommendation is approved or affirmed by the Court, the
complainant may be required to show cause why he should not be
held in contempt of court. If the complainant is a lawyer, he may
further be required to show cause why he or she should not be
administratively sanctioned as a member of the Bar and as an
officer of the court. (Dayag vs. Gonzales, 493 SCRA 51 [June 27,
2006])
9. Unless the acts were committed with fraud, dishonesty, corruption, malice
or ill-will, bad faith or deliberate intent to do an injustice respondent judge
may not be held administratively liable for gross misconduct, ignorance of
the law or incompetence of official acts in the exercise of judicial functions
and duties particularly in the adjudication of cases. (Cordero vs. Enriquez,
423 SCRA 181 [2004])

Prof. Arturo M. de Castro

Legal ethics updates

3/26/2016

10. (a) What are the exceptions to the rule that negligence of counsel
binds the client?
Ans: The rule that the negligence of counsel binds the client admits of
exceptions. The recognized exceptions are: (1) where reckless or
gross negligence of counsel deprives the client of due process
of law, (2) when its application will result in outright
deprivation of the clients liberty or property or (3) where the
interests of justice so require. In such cases, courts must step in
and accord relief to a party-litigant. (Callangan vs. People, 493
SCRA 269 [June 27, 2006])
b) The general rule is that the client is bound by the mistake of his
counsel, save when the negligence of counsel is so gross, reckless and
inexcusable that the client is deprived of his day in court. (Legarda vs.
Court of Appeals, 195 SCRA 418 [1991])
11. What is the rationale for the rule that the mistake or negligence of counsel
is binding on the client?
Ans: The general rule is that the mistake and negligence of counsel are
binding on the client. This is based on the principle that any act
performed by the lawyer within the scope of the express or implied
authority is regarded as an act of the client. Otherwise, there would
be no end to a suit so long as a new counsel could be employed
who would allege and show that the prior counsel had not been
sufficiently diligent, experienced, or learned. (Basuel vs. FactFinding and Intelligence Bureau (FFIB), 494 SCRA 118 [June 20,
2006], Azcuna, Ponente)
12. What are the grounds for disbarment or suspension of a lawyer?
Ans: Under Section 27, Rule 138 of the Revised Rules of Court, a
member of the Bar may be disbarred or suspended on any of the
following grounds: (1) decit; (2) malpractice or other gross
misconduct in office; (3) grossly immoral conduct; (4) conviction of
a crime involving moral turpitude; (5) violation of the lawyers oath;
(6) willful disobedience of any lawful order of a superior court; and
(7) willfully appearing as an attorney for a party without authority.
Rule 1.01, Canon 1 of the Code of Professional Responsibility
provides that A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct. (Ronquillo vs. Cezar, 491 SCRA 5,
June 16, 2006)
13. Does misconduct refer exclusively to the performance of a lawyers
professional duties?
Ans: No. Conduct, as used in this rule, does not refer exclusively to the
performance of a lawyers professional duties. This Court has made
clear in a long line of cases that a lawyer may be disbarred or
suspended for misconduct, whether in his professional or private
capacity, which shows him to be wanting in moral character,
honesty, probity and good demeanor, or unworthy to continue as an
officer of the court. (Ibid)

Prof. Arturo M. de Castro

Legal ethics updates

3/26/2016

THE NEW NOTARIAL LAW

The 2004 Rules on Notarial Practice is not specifically included in the
coverage for the 2008 Bar Examination in Legal Ethics and Practical Exercises.
However, the requirements for a Jurat when the examinee is required to prepare
a complete Affidavit must comply with the new requirements of the law, wherein
Section 6 & 12 specifically provide:
SEC. 6. Jurat. Jurat refers to an act in which an individual on a single
occasion:
(a) appears in person before the notary public and presents an
instrument or document;
(b) is personally known to the notary public or identified by the
notary public through competent evidence of identity as defined
by these Rule;
(c) signs the instrument or document in the presence of the notary;
and
(d) takes an oath or affirmation before the notary public as to such
instrument or document.
SEC. 12. Competent Evidence of Identity. The phrase competent
evidence of identity refers to the identification of an individual based on:
(a) at least one current identification document issued by an official
agency bearing the photograph and signature of the individual;
or
(b) the oath or affirmation of one credible witness not privy to the
instrument, document or transaction who is personally know to
the notary public and who personally knows the individual, or of
two credible witnesses neither of whom is privy to the
instrument, document or transaction who each personally knows
the individual and shows to the notary public documentary
identification.
If you are asked to draft a Donation, remember, that if it is Donation
Intervivos, make sure that the Donee accepts the donation in the same or
separate document, for validity of the Donation. If it is Donation mortis causa,
follow the requisites for a Notarial will.
A notarial will without a separate acknowledgement for the
Attestation Clause is null and void. Jurat for the Attestation Clause also
renders the will and null and void even if forming part of the entire Will.
Acknowledgement for the will is of no moment, without separate
acknowledgment for the Attestation clause.
If you are required to draft a Criminal Information, make sure that you
state the place and time, and the manner of the commission, and all the essential
elements, of the crime, including the qualifying aggravating circumstances, which
may no longer be appreciated if not alleged in the Information under the new
amendment to the Rules of Criminal Procedure.
Last word of advice, memorize the Lawyers Oath, which spells out the
sworn duties of a lawyer to the State, to the Court, to fellow lawyers, to the
clients, to himself and to Administration of justice in general.

Prof. Arturo M. de Castro

Legal ethics updates

3/26/2016

The form of the Jurat is much the same as an Acknowledgment certifying

the personal appearance of the Affiant who is either personally known to the
Notary Public or identified by the Notary Public through competent evidence of
identity based on (a) at least one current identification document issued by an
official agency bearing the photograph and signature of the individual or (b) oath
or affirmation of one credible witness not privy to the instrument, document or
transaction who is personally known to the notary public and who personally
knows the individual, or of two credible witnesses neither of whom is privy to the
instrument, document or transaction who each personally knows the individual
and shows to the notary public documentary identification i.e. government I.D.
with photograph and signature.
SAMPLE JURAT
SUBSCRIBED AND SWORN TO BEFORE ME by (Name of Affiant) who
personally appeared and showed his/her Philippine Passport/SSS/GSIS/Drivers
License with license no. ________ issued at _________ on ______ and valid
until __________.

(Name of Notary)
Notary Public for __________________
Commission No. ____ until Dec. 31, ___.
Attys Roll No. _________________
PTR No./ date and place of issue
IBP No. / date and place of issue
Office Address: ________________
Doc. No. _____;
Page No. _____;
Book No. _____;
Sereis of _____.
The Notarial Commission number and the Roll of Attorney number of the
Notary Public must be indicated.
Without compliance with the above requirements of new valid mode of
identification, indication of the commission number, office address and roll of
attorney number in the notarization of the Verification and Non-Forum
Certification, the Supreme Court dismisses outright Petition with such defective
notarization.
An Acknowledgment is required for any contract or deed, as well as for
the Attestation Clause of a Will, in addition to notarization of the Notarial Will.
SAMPLE ACKNOWLEDGMENT
REPUBLIC OF THE PHILIPPINES
CITY OF MAKATI

S.S.

BEFORE ME, a Notary Public for and in the above jurisdiction on this
__________________________, personally appeared;
Prof. Arturo M. de Castro
Legal ethics updates

3/26/2016

______

Government I.D.
Passport/GSIS/SSS/
Drivers License No.
__________________

______

__________________

Name

Date & Place

of Issue

Valid until

_________

_________

_________

_________

known to me and to me known to be the same persons who executed the

foregoing instrument. The same persons acknowledged that the same are their
own free and voluntary act.
This instrument known as [Title of Deed] consisting of [number of pages in
words] (#) pages, including this page whereon the acknowledgment clause is
written, has been signed by the parties and their instrumental witnesses on each
and every page hereof.
WITNESS MY HAND AND SEAL, at the place and on the date first
above-written.

(Name of Notary)
Notary Public for __________________
Commission No. ____ until Dec. 31, ___.
Attys Roll No. _________________
PTR No./ date and place of issue
IBP No. / date and place of issue
Office Address: ________________

Doc. No. _____;

Page No. _____;
Book No. _____;
Sereis of _____.

Prof. Arturo M. de Castro

Legal ethics updates

3/26/2016