Beruflich Dokumente
Kultur Dokumente
FERNANDO, J.:p
What is assailed in this certiorari proceeding is an order of
respondent Judge denying a motion filed by petitioner to be
allowed to withdraw as counsel de oficio. 1 One of the grounds
for such a motion was his allegation that with his appointment
as Election Registrar by the Commission on Elections, he was
not in a position to devote full time to the defense of the two
accused. The denial by respondent Judge of such a plea,
notwithstanding the conformity of the defendants, was due "its
principal effect [being] to delay this case." 2 It was likewise
noted that the prosecution had already rested and that
petitioner was previously counsel de parte, his designation in
the former category being precisely to protect him in his new
position without prejudicing the accused. It cannot be plausibly
asserted that such failure to allow withdrawal of de
oficio counsel could ordinarily be characterized as a grave
abuse of discretion correctible by certiorari. There is, however,
the overriding concern for the right to counsel of the accused
that must be taken seriously into consideration. In appropriate
cases, it should tilt the balance. This is not one of them. What
is easily discernible was the obvious reluctance of petitioner to
comply with the responsibilities incumbent on the counsel de
oficio. Then, too, even on the assumption that he continues in
his position, his volume of work is likely to be very much less at
present. There is not now the slightest pretext for him to shirk
an obligation a member of the bar, who expects to remain in
good standing, should fulfill. The petition is clearly without
merit.
According to the undisputed facts, petitioner, on October 13,
1964, was appointed Election Registrar for the Municipality of
Cadiz, Province of Negros Occidental. Then and there, he
commenced to discharge its duties. As he was counsel de
parte for one of the accused in a case pending in the sala of
respondent Judge, he filed a motion to withdraw as such. Not
only did respondent Judge deny such motion, but he also
appointed him counsel de oficio for the two defendants.
Subsequently, on November 3, 1964, petitioner filed an urgent
motion to be allowed to withdraw as counsel de oficio,
premised on the policy of the Commission on Elections to
require full time service as well as on the volume or pressure of
work of petitioner, which could prevent him from handling
adequately the defense. Respondent Judge, in the challenged
order of November 6, 1964, denied said motion. A motion for
reconsideration
having
proved
futile,
he
instituted
this certiorari proceeding. 3
As noted at the outset, the petition must fail.
RESOLUTION
FELICIANO, J.:
A criminal information was filed on 4 February 1992 with the
Regional Trial Court of Quezon City, Branch 101, charging Mr.
A.C. Argosino along with thirteen (13) other individuals, with
the crime of homicide in connection with the death of one Raul
Camaligan on 8 September 1991. The death of Raul
Camaligan stemmed from the infliction of severe physical
injuries upon him in the course of "hazing" conducted as part of
university fraternity initiation rites. Mr. Argosino and his coaccused then entered into plea bargaining with the prosecution
and as a result of such bargaining, pleaded guilty to the lesser
offense of homicide through reckless imprudence. This plea
was accepted by the trial court. In a judgment dated 11
February 1993, each of the fourteen (14) accused individuals
was sentenced to suffer imprisonment for a period ranging
from two (2) years, four (4) months and one (1) day to four (4)
years.
Eleven (11) days later, Mr. Argosino and his colleagues filed an
application for probation with the lower court. The application
for probation was granted in an Order dated 18 June 1993
issued by Regional Trial Court Judge Pedro T. Santiago. The
period of probation was set at two (2) years, counted from the
probationer's initial report to the probation officer assigned to
supervise him.
Less than a month later, on 13 July 1993, Mr. Argosino filed a
Petition for Admission to Take the 1993 Bar Examinations. In
this Petition, he disclosed the fact of his criminal conviction and
his then probation status. He was allowed to take the 1993 Bar
Examinations in this Court's En Banc Resolution dated 14
August 1993. 1 He passed the Bar Examination. He was not,
however, allowed to take the lawyer's oath of office.
On 15 April 1994, Mr. Argosino filed a Petition with this Court to
allow him to take the attorney's oath of office and to admit him
to the practice of law, averring that Judge Pedro T. Santiago
had terminated his probation period by virtue of an Order dated
11 April 1994. We note that his probation period did not last for
more than ten (10) months from the time of the Order of Judge
Santiago granting him probation dated 18 June 1993. Since
then, Mr. Argosino has filed three (3) Motions for Early
Resolution of his Petition for Admission to the Bar.
The practice of law is not a natural, absolute or constitutional
right to be granted to everyone who demands it. Rather, it is a
high personal privilege limited to citizens of good moral
character, with special educational qualifications, duly
ascertained and certified. 2 The essentiality of good moral
character in those who would be lawyers is stressed in the
following excerpts which we quote with approval and which we
regard as having persuasive effect:
In Re Farmer: 3
xxx xxx xxx
This "upright character" prescribed by the
statute, as a condition precedent to the
applicant's right to receive a license to
practice law in North Carolina, and of which
he must, in addition to other requisites,
satisfy the court, includes all the elements
necessary to make up such a character. It is
something more than an absence of bad
character. It is the good name which the
applicant has acquired, or should have
acquired, through association with his
fellows. It means that he must have
conducted himself as a man of upright
character ordinarily would, or should, or
does. Such character expresses itself, not in
negatives nor in following the line of least
resistance, but quite often, in the will to do
the unpleasant thing if it is right, and the
resolve not to do the pleasant thing if it is
wrong. . . .
xxx xxx xxx
And we may pause to say that this
requirement of the statute is eminently
proper. Consider for a moment the duties of
a lawyer. He is sought as counsellor, and his
advice comes home, in its ultimate effect, to
every man's fireside. Vast interests are
committed to his care; he is the recipient
of unbounded trust and confidence; he deals
with is client's property, reputation, his
life, his all. An attorney at law is a sworn
officer of the Court, whose chief concern, as
such, is to aid the administration of justice. . .
.
xxx xxx xxx 4
In Re Application of Kaufman, 5 citing Re Law
Examination of 1926 (1926) 191 Wis 359,
210 NW 710:
It can also be truthfully said that there exists
nowhere greater temptations to deviate from
the straight and narrow path than in the
multiplicity of circumstances that arise in the
10
Footnotes
MELENCIO-HERRERA, J.:+.wph!1
Two separate Petitions were filed before this Court 1) by the
surviving partners of Atty. Alexander Sycip, who died on May 5,
1975, and 2) by the surviving partners of Atty. Herminio
Ozaeta, who died on February 14, 1976, praying that they be
allowed to continue using, in the names of their firms, the
names of partners who had passed away. In the Court's
Resolution of September 2, 1976, both Petitions were ordered
consolidated.
Petitioners base their petitions on the following arguments:
Elections
be
declared
null
and
void.
Issue:
Whether the appointment of Chairman Monsod of Comelec
violates Section 1 (1), Article IX-C of the 1987 Constitution?
Held:
The 1987 Constitution provides in Section 1 (1), Article IX-C,
that there shall be a Commission on Elections composed of a
Chairman and six Commissioners who shall be natural-born
citizens of the Philippines and, at the time of their appointment,
at least thirty-five years of age, holders of a college degree,
and must not have been candidates for any elective position in
the immediately preceding elections. However, a majority
thereof, including the Chairman, shall be members of the
Philippine Bar who have been engaged in the practice of law
for at least ten years.
to be charged for the specific services. No such exception is
provided for, expressly or impliedly whether in our former
Canons of Professional Ethics or the present Code of
Professional Responsibility. Besides, even the disciplinary rule
in the Bates case contains a proviso that the exceptions stand
therein are "not applicable in any state unless and until it is
implemented by such authority in that state.
The Court Resolved to RESTRAIN and ENJOIN The Legal
Clinic, Inc., from issuing or causing the publication or
dissemination of any advertisement in any form which is of the
same or similar tenor and purpose as Annexes "A" and "B" of
this petition, and from conducting, directly or indirectly, any
activity, operation or transaction proscribed by law or the Code
of Professional Ethics as indicated herein.
Ulep v The Legal Clinic, Inc.
B.M. No. 553
Ponente: J. Regalado
Date: June 17, 1993
Petitioners: MAURICIO C. ULEP
Respondents: THE LEGAL CLINIC, INC.
FACTS:
DOCTRINE:
DEFINITION:
NOTES:
Not all types of advertising or solicitation are prohibited. The
exceptions are of two broad categories, namely, those which
are expressly allowed (brief biographical and informative data)
and those which are necessarily implied from the restrictions
(use of professional card).
Canlas vs CA
FACTS:
August, 1982: Osmundo S. Canlas executed a
Special Power of Attorney authorizing Vicente Maosca to
mortgage 2 parcels of land situated in BF Homes
Paranaque in the name of his wife Angelina Canlas.
But such fact notwithstanding, the bank did not require the
impostors to submit additional proof of their true identity.Doctrine of last clear chance - applicable here - the
respondent bank must suffer the resulting loss. In essence, the
doctrine of last clear chance is to the effect that where both
parties are negligent but the
negligent act of one is appreciably later in point of time than
that of the other, or where it is impossible to determine whose
fault or negligence brought about the occurrence of the
incident, the one who had the last clear opportunity to avoid the
impending harm but failed to do so, is chargeable with the
consequences arising therefrom. Stated differently, the rule is
that the antecedent negligence of a person does not preclude
recovery of damages caused by the supervening negligence of
the latter, who had the last fair chance to prevent the
impending harm by the exercise of due diligence.
- Assuming that Osmundo Canlas was negligent in giving
Vicente Maosca the opportunity to perpetrate the fraud, by
entrusting to latter the owner's copy of the transfer certificates
of title of subject parcels of land, it cannot be denied that the
bank had the last clear chance to prevent the fraud, by the
simple expedient of faithfully complying with the requirements
for banks to ascertain the identity of the persons transacting
with them.
- For not observing the degree of diligence required of banking
institutions, whose business is impressed with public interest,
respondent ASB has to bear the loss sued upon.- CA
concluded that the petitioner Osmundo Canlas was a party to
the fraudulent scheme of Maosca and therefore, estopped
from impugning the validity of subject deed of mortgage.
- A meticulous and painstaking scrutiny of the Records on
hand, reveals, however, that the findings arrived at by CA are
barren of any sustainable basis. For instance, the execution of
the deeds of mortgages constituted by Maosca on subject
pieces of property of petitioners were made possible not by the
Special Power of Attorney executed by Osmundo Canlas in
favor of Maosca but through the use of impostors who
misrepresented themselves as the spouses Angelina Canlas
and Osmundo Canlas. It cannot be said therefore, that the
petitioners authorized Vicente Maosca to constitute the
mortgage on their parcels of land.
- What is more, Osmundo Canlas was introduced as "Leonardo
Rey" by Vicente Maosca, only on the occasion of the
luncheon meeting at the Metropolitan Club. The failure of
Osmundo Canlas to rectify Maosca's misrepresentations
could not be taken as a fraudulent act. As well explained by the
former, he just did not want to embarrass Maosca, so that he
waited for the end of the meeting to correct Maosca. Osmundo Canlas recounted that during the said luncheon
meeting, they did not talk about the security or collateral for the
loan of Maosca with ASB. So also, Mrs. Josefina Rojo, who
was the Account Officer of ASB when Maosca applied for
subject loan, corroborated the testimony of Osmundo Canlas,
- Verily, Osmundo Canlas was left unaware of the illicit plan of
Maosca, explaining thus why Osmundo did not bother to
correct what Maosca misrepresented and to assert ownership
over the two parcels of land in question.- Not only that; while it
is true that Osmundo Canlas was with Vicente Maosca when
the latter submitted the documents needed for his loan
application, and when the check of P200,000.000 was
released, the former did not know that the collateral used by
Maosca for the said loan were their (Canlas spouses)
ALAWI VS ALAUYA
Facts:
Sophia Alawi was a sale representative of E.B.
Villarosa & Partner Co., Ltd. of Davao City. Ashari Alauya is the
incumber executive of clerk of court of the 4th Judicial Shari'a
District in Marawi City. It appears that through Alawi's agency, a
contract was executed for the purchase on installments by
Alauya of one of the housing units belonging to the above
mentioned firm (hereafter, simply Villarosa & Co.); and in
connection therewith, a housing loan was also granted to
Alauya by the National Home Mortgage Finance Corporation
(NHMFC). Not long afterwards, or more precisely on December
15, 1995, Alauya addressed a letter to the President of
Villarosa & Co. advising of the termination of his contract with
the company.
Ruling:
1. As regards Alauya's use of the title of "Attorney," this Court
has already had occasion to declare that persons who pass the
Shari'a Bar are not full-fledged members of the Philippine Bar,
hence may only practice law before Shari'a courts. The title of
"attorney" is reserved to those who, having obtained the
necessary degree in the study of law and successfully taken
the Bar Examinations, have been admitted to the Integrated
Bar of the Philippines and remain members thereof in good
RESOLUTION
CORONA, J.:
SO ORDERED.
Puno, C.J., Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Carpio-Morales, Azcuna, Tinga, ChicoNazario, Velasco, Jr., Nachura, Reyes, Leonardo-de Castro,
JJ., concur.
There is nothing wrong with the title of this post, because nonlawyers are, in limited instances, explicitly allowed to practice
law:
Rule 138 (Attorneys and Admission to the Bar), Section 34. By
whom litigation conducted. In the court of a justice of the peace
a party may conduct his litigation in person, with the aid of an
agent or friend appointed by him for that purpose, or with the
aid of an attorney. In any other court, a party may conduct his
litigation personally or by aid of an attorney, and his
appearance must be either personal or by a duly authorized
member of the bar.
Rule 138, Section 34 was described by the Supreme Court
in Maderada v. Mediodea (2003) as follows:
This provision means that in a litigation, parties may
personally do everything during its progress from its
commencement to its termination. When they, however, act as
their own attorneys, they are restricted to the same rules of
evidence and procedure as those qualified to practice law;
otherwise, ignorance would be unjustifiably rewarded.
Individuals have long been permitted to manage, prosecute
and defend their own actions; and when they do so, they are
not considered to be in the practice of law. One does not
practice law by acting for himself any more than he practices
medicine by rendering first aid to himself.
And so Rule 138, Section 34 is not an unbridled license to
wannabe-lawyers who want to try their luck in court. Since they
will be restricted to the same rules of evidence and procedure
as those qualified to practice law, they cannot complain of
denial of due process or miscarriage of justice if the case is
decided against them.
Moreover, the rule applies to a party who wants to conduct his
litigation in person or with the aid of an agent or friend, and so
the said party must be a real party in interest or have legal
standing: he stands to be benefited or injured by the judgment
in the suit, or the party entitled to the avails of the suit (Rule 3,
Section 2, Rules of Court; Baltazar v. Ombudsman [2006]).
In Maderada v. Mediodea, the Court also took pains to
distinguish a non-lawyers appearing in court for himself, and
his appearing in court for someone else:
However, it was also clearly established that complainant had
appeared on behalf of her co-plaintiff in the case below, for
which act the former cannot be completely exonerated.
Representing oneself is different from appearing on behalf of
someone else. The raison detre for allowing litigants to
represent themselves in court will not apply when a person is
already appearing for another party. Obviously, because she
was already defending the rights of another person when she
appeared for her co-plaintiff, it cannot be argued that
complainant was merely protecting her rights. That their rights
may be interrelated will not give complainant authority to
appear in court. The undeniable fact remains that she and her
co-plaintiff are two distinct individuals. The former may be
impairing the efficiency of public service once she appears for
the latter without permission from this Court.