Beruflich Dokumente
Kultur Dokumente
Scenario 1
Employment Dismissal
She was recruited by the International School Cebu (IS Cebu) to teach
English literature. The IS-Cebu has to categories of teachers : foreign hired and local
hired.
Although Jaclyn was born and raised in United States of America, she is a
Filipina at heart and found it odd that local hired teachers hired in the Philippines
received compensation and benefits are 20% less than those given to foreign hired
teachers like her.
She started discussing these issue with Victor who was pleased to answer her
questions and provide her legal guidance. Under other circumstances, Victor, who is
a Senior Associate of law firm XYZ would have required a clients signature on the
engagement letter. Since Jaclyn was his girlfriend, he considered it unnecessary to
make her sign an engagement letter.
Jaclyn also asked Victor how labor organization may be formed under the
Philippine Labor Code for purposes of collective bargaining.
When IS-Cebu learned that Jaclyn was encouraging the locally hired teachers
to protest against its equal work , unequal practices, the IS-Cebu management
asked the XYZ law firm whether Jaclyn could be subjected to disciplinary action for
her conduct that the judgment of the school management adversely affected in
management-employee relationship in the school.
Victor had to confront the question whether he can continue to advise Jaclyn
concerning the equal work but unequal pay practices of IS-Cebu, or even to
represent her as a personal client in the threatened disciplinary action against her
by IS-Cebu, which is a retainer client of the XYZ law-firm.
Victor takes the position that he has not rendered any service for IS-Cebu
which has consulted exclusively with Partner D of XYZ the law-firm hence has no
access to any confidential information of IS-Cebu that he could unfairly use against
it in the threatened disciplinary proceeding against Jaclyn.
The partners of the XYZ law firm also had to grapple with the question
whether
2. Asking Victor to resign from the firm of dismissing him if he refused will
avoid any conflict of interest situation.
SCENARIO 2
UNION FORMATION
The Alliance of Concerned Teachers (ACT) learned off the equal work, but
unequal pay practices of IS-Cebu and started recruitment activities among its locally
hired teachers. ACT also attempted similar recruitment activities among locally
hired teachers of IS-Manila, which was following the same employment practices of
IS-Cebu. However, the teachers at IS-Manila appeared to be divided on the issue of
union formation.
About 60% of the teachers wanted to form an independent union, while the
other 40% wanted to join ACT. The counsel of ACT complied with the requirement
under Title IV, Chapter I, Articles 234 et seq. of the Labor Code of the Philippines for
the registration of ACT.
Since ACT is already a registered labor organization, the teachers of IS-Cebu
directly affiliated with it without any need to constitute the chapter into a separately
registered labor organization.
On the other hand, the teachers at IS- Manila remained divided. 60% of the
teachers formed an independent union, which they registered with the Department
of Labor and Employment under Title IV, Chapter I., Article 234 et seq. of the Labor
Code. Only 40% directly affiliated with ACT.
ACTs counsel was consulted by the union officers on the question whether
they can assail the legality of IS-Manilas independent union on the basis of the
provisions Title IV, Chapter I that tend to favor the formation of industry wide
federations with the apparent objective of strengthening labor unionism the country.
ACTs officers requested counsel to render an opinion on whether this approach has
a reasonable basis under the Labor Code and whether suppressing the formation of
an independent union ACT would expose ACT to an unfair labor practice charge
under the Labor Code by the majority of the employees who prefer to be
represented by an independent union under Title IV, Chapter III, Article 249 et seq.
of the Labor Code.
On the other hand, having learned that 60% of the teachers actually
constituted themselves into an independent registered union, IS-Manilas
management subtly and discreetly encourage its members to maintain their
independence and permanently reject affiliation with ACT.
The schools management asked its legal counsel whether the approach is
legally permissible and would not expose the school to charges of unfair labor
practices under Title IV, Chapter ___. Article ___ of the Labor Code. Counsel was also
asked to set forth in writing whether there are ethical concerns that would prevent
him from carrying out the school Managements instructions.
2. ethical issues arise from the fact that the teachers lawyers- boyfriend is a
senior associate at a law firm which the retained counsel of another international
school that follows the same employment as IS- Cebu.
An attorney owes to his client undivided allegiance. After being retained and
receiving the confidences of the client, he cannot, without the free and
intelligent consent of his client, act both for his client and for one whose
interest is adverse to, or conflicting with that of his client in the same general
matter. The prohibition stands even if the adverse interest is very
slight; neither is it material that the intention and motive of the attorney
may have been honest- Lim Jr. v. Atty. Villarosa, A.C. No. 5303, June 15, 2006
Even respondents alleged effort to settle the existing controversy among the
family members was improper because the written consent of all
concerned was still required. A lawyer who acts as such in settling a
dispute cannot represent any of the parties to it. - Lim Jr. v. Atty.
Villarosa, A.C. No. 5303, June 15, 2006
Rule 15.04. - A lawyer may, with the written consent of all concerned,
act as mediator, conciliator or arbitrator in settling disputes.
The partners of the XYZ law firm also had to grapple with the question
whether
2. Asking Victor to resign from the firm of dismissing him if he refused will
avoid any conflict of interest situation.
It is generally the rule based on sound public policy that attorney cannot
represent diverse interest. It is highly improper to represent both sides of an issue.
An attorney owes to his client undivided allegiance. After being retained and
receiving the confidences of the client, he cannot, without the free and
intelligent consent of his client, act both for his client and for one whose
interest is adverse to, or conflicting with that of his client in the same general
matter. The prohibition stands even if the adverse interest is very
slight; neither is it material that the intention and motive of the attorney
may have been honest- Lim Jr. v. Atty. Villarosa, A.C. No. 5303, June 15, 2006
Where, however, the subject matter of the present suit between the lawyers
new client and his former client is in some way connected with that of
the former clients action, the lawyer may have to contend for his new
client that which he previously opposed as counsel for the former client or to
use against the latter information confided to him as his counsel. - Pormento,
Sr. v. Atty. Pontevedra, A.C. No. 5128. March 31, 2005
The reason for this is that a lawyer acquires knowledge of his former client's
doings, whether documented or not, that he would ordinarily not have
acquired were it not for the trust and confidence that his client placed
on him in the light of their relationship. It would simply be impossible for the
lawyer to identify and erase such entrusted knowledge with faultless
precision or lock the same into an iron box when suing the former client on
behalf of a new one. - Santos Ventura Hocorma Foundation, Inc. v. Atty. Funk,
A.C. No. 9094 August 15, 2012
Respondent further argued that it was his brother who represented Gonzales
in the civil case and not him, thus, there could be no conflict of interests. We
do not agree. As respondent admitted, it was their law firm which represented
Gonzales in the civil case. Such being the case, the rule against representing
conflicting interests applies. - Gonzales v. Atty. Cabucana, A.C. No. 6836,
January 23, 2006
Vicarious disqualification
Traditionally, if a lawyer is ineligible to represent a particular client, all
members of the lawyer's firm also are ineligible.
Rule 21.04 - A lawyer may disclose the affairs of a client of the firm to
partners or associates thereof unless prohibited by the client.
Scenario 2.
The schools management asked its legal counsel whether the approach:
1. legally permissible and would not expose the school to charges of unfair
labor practices under Title IV, Chapter III Article 249 of the Labor Code.
The concept of ULP is embodied in Article 256 (formerly Article 247) of the Labor
Code,14 which provides:
In essence, ULP relates to the commission of acts that transgress the workers'
right to organize. As specified in Articles 248 [now Article 257] and 249 [now
Article 258] of the Labor Code,the prohibited acts must necessarily relate to the
workers' right to self-organization . . . .
In the case of Insular Life Assurance Co., Ltd. Employees Association NATU v.
Insular Life Assurance Co. Ltd., this Court had occasion to lay down the test of
whether an employer has interfered with and coerced employees in the exercise
of their right to self-organization, that is, whether the employer has engaged in
conduct which, it may reasonably be said, tends to interfere with the free exercise
of employees' rights; and that it is not necessary that there be direct evidence
that any employee was in fact intimidated or coerced by statements of threats of
the employer if there is a reasonable inference that anti-union conduct of the
employer does have an adverse effect on self-organization and collective
bargaining.
The questioned acts of petitioners, namely: 1) sponsoring a field trip to Zambales
for its employees, to the exclusion of union members, before the scheduled
certification election; 2) the active campaign by the sales officer of petitioners
against the union prevailing as a bargaining agent during the field trip; 3)
escorting its employees after the field trip to the polling center; 4) the continuous
hiring of subcontractors performing respondents' functions; 5) assigning union
members to the Cabangan site to work as grass cutters; and 6) the enforcement
of work on a rotational basis for union members, all reek of interference on the
part of petitioners.
Rule 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law
or at lessening confidence in the legal system.
the Court agrees with the IBP Board of Governors that Atty. Mendoza made
irresponsible advices to her clients in violation of Rule 1.02 and Rule 15.07 of
the Code of Professional Responsibility. It is the mandate of Rule 1.02 that "a
lawyer shall not counsel or abet activities aimed at defiance of the law or at
lessening confidence in the legal system." Rule 15.07 states that "a lawyer shall
impress upon his client compliance with the laws and the principles of fairness."
Atty. Mendoza's improper advice only lessens the confidence of the public in our
legal system. Judges must be free to judge, without pressure or influence from
external forces or factors 22 according to the merits of a case. Atty. Mendoza's
careless remark is uncalled for.
It must be remembered that a lawyer's duty is not to his client but to the
administration of justice. To that end, his client's success is wholly subordinate.
His conduct ought to and must always be scrupulously observant of the law and
ethics. Any means, not honorable, fair and honest which is resorted to by the
lawyer, even in the pursuit of his devotion to his client's cause, is condemnable
and unethical.
||| (Areola v. Mendoza, A.C. No. 10135 (Resolution), [January 15, 2014], 724 PHIL
155-165)
O kayong may mga kasong drugs na may pangpiyansa o pang- areglo ay maging praktikal
sana kayo kung gusto ninyong makalaya agad. Upang makatiyak kayo na hindi
masasayang ang pera ninyo ay sa akin ninyo ibigay o ng kamag-anak ninyo ang pera at
ako na ang bahalang maglagay kay Judge Martin at Fiscal banqui; at kayong mga
detenidong mga babae na no bail ang kaso sa drugs, iyak-iyakan lang ninyo si Judge
Martin at palalayain na kayo. Malambot ang puso noon."
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