Sie sind auf Seite 1von 10

Chapter 2 The Lawyer and The Legal Profession Legal Profession - AKVMAYPA

CHAPTER II. THE LAWYER AND THE LEGAL PROFESSION


A. UPHOLDING INTEGRITY OF PROFESSION

CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND DIGNITY
OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED
BAR.

Apart from doing the bar proud by dispensing of their duties with diligence and integrity, lawyers should
also actively support activities of the IBP and should not limit himself to the payment of dues
#pushthelimit #hardsell
The IBP seeks to foster justice, integrity, learning, competence, public service, cordiality etc.

Rule 7.01 A person shall make no false statement in his application for admission to the bar

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.

Every student applying for admission into the practice of law must be:
1. A citizen of the Philippines
2. A resident of the Philippines
3. At least 21 years of age
4. A person of good moral character
5. Free of charges involving moral turpitude
6. Possess the educational qualifications
7. Pass the bar examinations
8. In fulfilment of other requirements which the SC may deem fit to impose

CITIZENSHIP AND RESIDENCE (because aliens cant maintain allegiance to Philippines and to our
administration of justice)

GOOD MORAL CHARACTER

Continued standard even after the bar because, is a ground not just for non-admission to the bar, but
also for cancellation of license
Requirement maintains high moral standard and dignity of the legal profession
Moral character refers to the objective reality of what a person actually is, as opposed to what people
perceive him to be
o Basic honesty o Deference to moral norms
o Loss of good moral character does not necessarily hinge
upon committing a crime
EDUCATIONAL QUALIFICATIONS
Chapter 2 The Lawyer and The Legal Profession Legal Profession - AKVMAYPA

Public policy requires education and degree of proficiency for proper practice of law and for proper
protection of life, liberty, and property
Applicant must have completed the following in an authorized university or school:
1. 4-year high school course
2. Bachelors degree for arts or science (focus on political science, logic, English, Spanish, history,
economics)
3. Bachelors degree in law (with civil, commercial, remedial, criminal, public intl, private intl, political,
labor, social legislation, medical, taxation law and legal ethics)

DISCLOSURE OF INVOLVEMENT IN ANY CRIMINAL CASE

Ensure that applicant is of good moral character


Whether or not a crime imputed upon the applicant involves moral turpitude is up to the SC to decide
Concealment of a crime, even if it is not one involving moral turpitude, makes the applicant morally unfit
to become a lawyer

Rule 7.02 - A lawyer shall not support unqualified applicant to the bar

A lawyer shall not support the application for admission to the bar of any person known by him to be
unqualified in respect to character, education, or other relevant attribute.

Must not execute a certificate of good moral character in favour of an applicant whom he knows has not
lived up to such standard
Volunteer information and cooperate in investigations concerning anomalies among bar candidates

Rule 7.03 A lawyer shall always conduct himself ethically and morally

A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he,
whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.

Lawyer should be an exemplar for others to emulate


No acts or omissions against the law
No acts contrary to justice, modesty or good morals No acts of depravity in private or social duties
GROSS IMMORALITY REFLECTIVE OF UNFITNESS TO PRACTICE

Personal immorality in private relations with the opposite sex (#heteronormative) puts his moral
character in doubt
For an act to justify suspension and disbarment, act must be
GROSSLY immoral
Seduction, concubinage, bigamy = ALL BAD
But mere sex without any impediments to marriage, and having a child out of wedlock is not grossly
immoral and does not warrant discipline UNLESS lawyer disowns child or refuses to support him or her
CONVICTION OF CRIME INVOLVING MORAL TURPITUDE
Chapter 2 The Lawyer and The Legal Profession Legal Profession - AKVMAYPA

Essentially any crime with fraud or deceit inherently contrary to conduct, honesty, or morality involve
moral turpitude
Results in suspension or disbarment

COMMISSION OF FRAUD OR FALSEHOOD


Administrative disciplines for frauds committed in private affairs
Shows lawyers unfitness to be trusted with the legal business
Includes false deeds of sale, simulated contracts, falsification of power of attorney, etc.

B. LAWYERS RELATION WITH OTHER LAWYERS

CANON 8 - A LAWYER SHALL CONDUCT HIMSELF WITH COURTESY, FAIRNESS AND


CANDOR TOWARD HIS PROFESSIONAL COLLEAGUES, AND SHALL AVOID HARASSING
TACTICS AGAINST OPPOSING COUNSEL.

In general.
Membership in the bar imposes upon lawyers certain obligations to one another, which makes the practice of
law a profession:
1) Observance of honorable, candid, and courteous dealings with other lawyers;
2) Fidelity to known and recognized customs and practices of the bar.

Candor, fairness and truthfulness.


A lawyer should not ignore recognized customs and practices of the bar. He has a duty to restrain clients
from improprieties and to terminate his relation with client who persists in wrongdoing. A lawyer should
not avoid performance of an agreement that was made fairly. If status quo of a pending case was agreed
upon to be preserved, a lawyer should not disturb or change the status quo without informing court and
counsel. Excusable unpreparedness or absence of counsel during trial of a case should not be taken
advantage of by a lawyer; nor should a lawyer make use of secrets of the opposing party acquired through
inadvertence for his or clients benefit. If a lawyer has a family relationship with counsel for the opposing
party, he should withdraw from case if he inadvertently gets information about the opposing party.

A lawyer who thinks a case is weak may not criticize the lawyer who accepts it, much less attribute to him
evil motive for taking up the clients cause.

A lawyer may accept employment to compel another lawyer to honor


the just claim of a layman. His action toward such end, as writing a letter of demand to the lawyer, is not
unethical since it is mere honest effort to serve the interest of the client.

Rule 8.01 A lawyer shall use temperate language

A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise
improper.
Chapter 2 The Lawyer and The Legal Profession Legal Profession - AKVMAYPA

His arguments, written or oral, should be gracious to both the court and the opposing counsel, and be of
such words used to properly address one gentleman to another.

Do as adversaries do in law: strive mightily but eat and drink as friends. Whatever may be the ill-feelings between the
clients should not influence counsel in their conduct and demeanor toward each other, and that lawyers
should scrupulously avoid all personalities and personal history or personal peculiarities and idiosyncrasies of
the other.

The fact that one lawyer conducts himself improperly does not relieve another from professional obligation
in relation with him, which should enable the erring lawyer to realize the impropriety of his actions.
Unjustified recriminations and offensive personalities between lawyers detract from the dignity of the legal
profession and constitute highly unprofessional conduct subject to disciplinary action.

The highest reward that can come to a lawyer is the esteem of his professional brethren.
Rule 8.02 - A lawyer shall not encroach upon the business of another

A lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer;
however, it is the right of any lawyer, without fear or favor, to give proper advice and assistance to those
seeking relief against unfaithful or neglectful counsel.

Efforts, direct or indirect, in any way to encroach upon the professional employment of another lawyer, are
unworthy of a lawyer.
A lawyer should not steal another lawyers client nor induce the client 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.

It is, however, the right of a lawyer, without fear or favor, to give proper advice to those seeking relief against
unfaithful or neglectful counsel. A lawyer may accept employment to handle a matter previously handled by
another lawyer, provided that the other lawyer has been given notice of termination of service.

The notice will enable the lawyer to be changed (first lawyer) to assert and protect his rights to compensation
that he can claim or possess. Without such notice, the replacing (second) lawyer shall only appear once he has
obtained conformity or has, at the very least, given sufficient notice of contemplated substitution to the first
lawyer.

A lawyers appearance in the case without notice to the first lawyer amounts to an improper encroachment
upon the professional employment of the original counsel.

Negotiation with opposing party.


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
Chapter 2 The Lawyer and The Legal Profession Legal Profession - AKVMAYPA

case even if the adverse party was willing to do so. Neither should a lawyer sanction the attempt of his
client to settle a litigated matter with the adverse party without the consent nor knowledge of the latters
counsel.

Association as a colleague in a case.


A clients proffer of assistance of additional counsel should not be regarded as evidence of want of
confidence but the matter should be left to the determination of the client.
A lawyer retained as additional counsel (second lawyer) should first communicate with the original counsel
(first lawyer) before making an appearance in a case. Should the first lawyer object, the second lawyer
should decline association, but if the first lawyer is relieved, second lawyer may come into the case.

When there is conflict of opinions between two lawyers jointly associated in a case, the client should decide.
The clients decision should be accepted unless the nature of the difference makes it impracticable for the
lawyer whose judgment has been overruled to cooperate effectively. In this event, it is the lawyers duty to ask
client to relieve him/her.

C. PREVENTING UNAUTHORIZED PRACTICE OF LAW

CANON 9 - A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY, ASSIST IN THE


UNAUTHORIZED PRACTICE OF LAW.

In general. Canon 9 requires that a lawyer should know what practice of law is, who are entitled to practice,
and what constitutes unauthorized practice.
Practice of law, generally.
The term practice of law is incapable of exact definition, and whether a particular activity comes within
the meaning of the term depends upon the circumstances of the case. The court, however, has laid down
general principles and doctrines to explain the meaning and scope of the term.

Generally, to engage in the practice of law is to do any acts characteristic of the legal profession. It
includes any activity, in or out of court that requires the application of law, legal principle, practice or
procedure, and calls for legal knowledge, training and experience. It is not limited to the conduct of cases
in court, but includes legal advising and counseling, and preparation of legal instruments and contracts by
which legal rights are secured.

In the practice of the legal profession, a lawyer engages in three principal types of professional work:
1) Providing legal advise and instruction to clients to inform them of their rights and obligations;
2) Preparing for clients documents requiring knowledge of legal principles not possessed by laymen;
3) Appearing for clients before public tribunals that posses power and authority to determine the
rights of life, liberty and property according to law, in order to assist in the proper interpretation
and enforcement of law.
Chapter 2 The Lawyer and The Legal Profession Legal Profession - AKVMAYPA

Engaging in the practice of law presupposes the existence of an attorney-client relationship; where a
lawyer undertakes an activity requiring knowledge of law but involves no attorney-client relationship, such
as teaching law or writing books/legal articles, he cannot be said to be engaged in the practice of
profession as a lawyer.

Characteristics of term practice of law.


The term practice of law implies customarily or habitually holding oneself out to the public as a lawyer,
for compensation as a source of livelihood or in consideration of his services. Appearance as counsel in
one occasion is not conclusive as determinative of engagement in the practice of law. An isolated
appearance, however, may amount to practice in relation to the rule that prohibits some persons from
engaging the exercise of the legal profession, such as that in the Art.
VI, Sec. 14 of the 1987 Constitution.

Representation before the court.


The practice of law as customarily understood is the rendering of service to a person, natural or juridical,
in a court of justice on any matter pending therein through its various stages and in accordance with
established rules of procedure. It includes:
1) Appearance before the court
2) Preparation and filing of pleadings, motions, memoranda or briefs for an action or proceeding in
court 3) Conduct of litigation, such as:
a. Determination of procedural steps to be taken
b. Examination of witness
c. Presentation of evidence or exhibits
4) General management and control of proceedings in court

Representation before other agencies.


The appearance before any quasi-judicial, administrative or legislative agency, which includes
interpretation and application of laws and presentation of evidence to establish certain facts, constitutes
practice of law.

The service to prepare and prosecute a just claim before a quasijudicial or administrative agency is as
legitimate as the service rendered in court in arguing a cause. The character of the service, and not the
place where it is performed, is the decisive factor in the question of whether the service constitutes a
practice of law.

Activity outside of court.


The practice of law also includes work performed outside of court, such as giving of legal advice on a
large variety of subjects, and preparation and execution of legal instruments covering an extensive field of
business and trust relations and other affairs. No valid distinction can be drawn between that part of the
work of a lawyer involving appearance in court, and that of a lawyer drafting legal instruments in his
office.

In Cayetano vs. Monsod, particularly J. Padillas dissent sums up the criteria determinative of engaging in the
practice of law:
1) Habituality more than an isolated appearance
Chapter 2 The Lawyer and The Legal Profession Legal Profession - AKVMAYPA

2) Compensation for rendering of professional legal services


3) Application of law, legal principle, practice or procedure calls for legal knowledge, training or
experience
4) Attorney-client relationship existence of which is necessary to claim practice of law

Persons entitled to practice law, generally.


Only those who are competent, honorable and reliable may practice law, and every lawyer must pursue
only the highest standards in the practice of his calling.

Any person who has been duly licensed as a member of the bar in accordance with the statutory
requirements, and who is in good and regular standing is entitled to practice law.

Two basic requirements that must be complied with before a person can engage in the practice of law:
1) Must have been admitted to the bar, which involves various phases consisting of:
a. Furnishing satisfactory proof of educational, moral,
and other qualifications;
b. Passing the bar examinations;
c. Taking the lawyers oath before the Supreme Court;
d. Signing the roll of attorneys and receiving from the Supreme Court clerk of court a
certificate of the license to practice.

2) After admission to the bar, must remain in good and regular standing a continuing requirement,
which means that a lawyer must:
a. Remain a member of the Integrated Bar of the
Philippines (IBP);
b. Regularly pay all IBP membership dues and other lawful assessments, as well as the annual
privilege tax;
c. Faithfully observe the rules and ethics of the legal profession;
d. Be continually subject to judicial disciplinary control.

These rules were designed to admit only those who are adequately prepared mentally and morally to
discharge the duties of an attorney, and to exclude to perform those who cannot live up to its exacting
standards.

Right and privilege to practice.


The practice of law is not a natural, property or constitutional right, but a mere privilege. It is not a right
granted to any one who demands it, but a privilege to be extended or withheld in the exercise of a sound
judicial discretion. It is in a nature of a franchise conferred only for merit, and which must be earned by
hard study, learning, and good conduct. It is a privilege accorded only to those who measure up to certain
rigid standards of mental and moral fitness, which are neither dispensed with nor lowered after admission
to the bar.
Chapter 2 The Lawyer and The Legal Profession Legal Profession - AKVMAYPA

As an officer of the court, he is continually accountable to the court for the manner in which he exercises
the privilege of practicing law, which should be suspended or terminated if he is no longer fit or safe to be
entrusted with the responsibilities and obligations of a lawyer.

Although the practice of law is a privilege, a lawyer cannot be prevented from practicing law except for
valid reasons. As long as a lawyer is in good behavior, he cannot be deprived of the privilege; unless he
commits misconduct ascertained and declared by court judgment after due process.

The state cannot exclude a lawyer from practicing law for reasons that contravene the due process or equal
protection clause of the Constitution. No court or court-martial can deny a lawyer without valid statutory
limitation or grounds for disqualification, the right to appear before it in representation of a client. A quasi-
judicial or administrative agency cannot restrict privilege to practice law by imposing discriminatory
conditions, nor by requiring the passing of an examination that is not sanctioned by law to be able to appear
before such agency. In this sense, the practice of law is a right that cannot be lightly or capriciously restricted
or taken away.

Practice without admission.


To a certain extent, some persons not duly licensed to practice are allowed limited representation on
behalf of others. A layman of good repute for probity and ability is permitted by the Supreme Court to
appear for another, but only in the municipal or metropolitan trail court; and he cannot, even in a single
occasion, represent another in any other court, nor can he be appointed by any court other than a
municipal trial court, to aid a defendant in his defense, in the absence of authority from the Supreme
Court.

These are the rules for a layman in representing another in court:


1) A layman should confine his work to non-adversary contentions, and should not undertake purely
legal work (such as cross-examination of witnesses or presentation of evidence);
2) A layman should not render representation habitually (see previous paragraph), as habitually is a
condition of a valid practice of law;
3) A layman should not charge or collect attorneys fees, as there cannot exist an attorney-client
relationship.

A layman who engages in practice of law may be held liable for unauthorized practice.

Right of party to represent himself.


An individual may be permitted to manage, prosecute and defend his own actions, but his representation
on behalf of himself is not considered to be a practice of law. One does not practice law by acting for
himself any more than he practices medicine by rendering first aid to himself.

In criminal cases involving grave and less grave offenses, a layman must always appear with counsel; he
cannot conduct his own defense, as his right to counsel may not be waived without violating his right to
due process of law.
Chapter 2 The Lawyer and The Legal Profession Legal Profession - AKVMAYPA

A juridical person must always appear in court represented by a duly licensed member of the bar, except
in the municipal trial court where a layman may represent it.

Practice by corporation.
A corporation or juridical entity cannot engage in the practice of law in representation of others, but may
hire an attorney to attend to and conduct its own legal business or affairs.

Intervention of intermediary.
A lawyers duty not to assist, directly or indirectly in the unauthorized practice of law prohibits him from
allowing an intermediary to intervene in the performance of his professional obligations.

A lawyers responsibilities and qualifications are individual, hence his relation to a client is personal and his
responsibility is direct. Intervention by any lay agency, personnel or corporate, between lawyer and the
client is forbidden. He should avoid all relations which direct the performance of his duties by or in the
interest of such intermediary.

A lawyers employment should not include the rendering of legal services to members of an organization
in respect to their individual affairs; however, a charitable society rendering aid to the indigent is not an
intermediary within the meaning of the rule.

Preventing unauthorized practice of law.


Public policy requires that the practice of law be limited to those individuals found duly qualified in
education and character. The permissive right conferred on the lawyer is an individual and limited privilege
subject to withdrawal if he fails to maintain proper standards of moral and professional conduct. The purpose
is to protect the public, the court, the client, and the bar from incompetence and dishonesty of those
unlicensed to practice law and not subject to the disciplinary control of the court. The law makes it a
misbehavior on the part of a lawyer to aid a layman in the unauthorized practice of law. A person not
admitted to the bar may not hold himself out to the public as engaged in the practice of law, either alone or as
associated with a practicing attorney under a firm name. (US v. Ney (1907)

Rule 9.01 - A lawyer shall not delegate legal work to non-lawyers

A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be
performed by a member of the Bar in good standing.

A lawyer should not delegate to a layman any work that involves the application of law, such as:
1) The computation and determination of the period within which to appeal and adverse judgment;
2) Examination of witnesses and presentation of evidence.

A lawyer may employ secretaries, investigators, detectives, and researchers, as long as they are not
involved in the practice of law, such as not writing of pleadings, appearing in court, etc. He may also
employ law students to do lawyers work, such as examination of case laws, finding and interviewing
witnesses, examining court records, delivering papers, and other similar matters.
Chapter 2 The Lawyer and The Legal Profession Legal Profession - AKVMAYPA

Rule 9.02 - A lawyer shall not divide fees with non-lawyers

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; or b)
Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; or
c) Where a lawyer or law firm includes non-lawyer employees in a retirement plan, even if the plan is based in
whole or in part, on a profitable sharing arrangement.

Generally, a lawyer shall not divide or stipulate to divide a fee for


legal services with persons not licensed to practice law, which is a necessary consequence of the rule
against layman from practicing law; however, there are three exceptions:
1) 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.
2) Where a lawyer undertakes to complete unfinished or legal business of a deceased lawyer.
3) Where a lawyer or law firm includes non-lawyer employees in a retirement plan, even if the
plan is based in whole or in part, on profit-sharing arrangement.

The first two exceptions to the rule represent compensation for legal service rendered by the deceased
lawyer during his lifetime, which is paid to his estate or heirs. Impropriety arises where the effect of the
arrangement is to make the estate or heir a member of the partnership along with the surviving partners,
or where the estate or heir is to receive a percentage of fees that may be paid from future business of the
deceased lawyers clients. Such fees no longer represent compensation for past services of the deceased
lawyer.

The third exception to the rule does not involve, strictly speaking, a division of legal fees with non-lawyer
employees. The retirement benefits in the form of pension represent additional deferred wages or
compensation for past services of the employees.