LEGAL PROFESSION REVIEWER MIDTERMS

Nature and Characteristics of Disciplinary Action against the Lawyer

1. Neither criminal nor civil proceedings”
a. Sui generis, it is a class of its own since it is neither civil nor criminal, but
rather are investigations by the Court into the conduct of one of its officer;
b. Confidential in nature
The confidentiality of the proceeding is a privilege which can be waived by the
lawyer in whom and for the protection of whose personal and professional reputation
it is vested, as by presenting the testimony in a disbarment case or using it as
impeaching evidence in a civil suit
a. Defense of double jeopardy is not available
b. Can be initiated by the SC, motu proprio, or by the IBP, it can be initiated
without a complaint
c. Can proceed regardless of interest of the complainant
d. Imprescriptible
e. It is itself due process of law
f. In pari delicto rule is not applicable
g. No prejudicial question in disbarment proceedings
h. Penalty in a disbarment case cannot be in the alternative
i. Monetary claims cannot be granted except restitution and return of monies
and properties of the client given in the course of the lawyer-client relationship

WHEN TO RETURN OR NOT THE MONEY (Anacta vs Resurreccion)

Return
 If the matter involves violations of the lawyer’s oath and code of conduct then
it falls within the court’s disciplinary authority
 When the subject matter of the inquiry pertains to the mental and moral
fitness of the respondent to remain as member of the legal fraternity.
Not to return
 If the matter arose from acts which carry civil or criminal liability, and which do
not directly require an inquiry into the moral fitness of the lawyer, then the
matter would be proper subject of a judicial action which is understandably
outside the purview of court’s disciplinary authority = do not return
What SC says about lawyers who assumes public office
 as officers of the court, lawyers must not only in fact be of good moral
character but must also be seen to be of good moral character and leading
lives in accordance with the highest moral standards of the community.
Re: Financial Audit of Atty. Kho
 Public office is a public trust. Those charged with the dispensation of justice,
from the justices and judges to the lowliest clerks, should be circumscribed
with the heavy burden of responsibility.
 Not only must their conduct at all times be characterized by propriety and
decorum but, above all else, it must be beyond suspicion.
OCA VS INDAR

In Office of the Court Administrator v. Lopez, the Court explained the difference
between simple misconduct and grave misconduct, thus:

The Court defines misconduct as a transgression of some established

and definite rule of action, more particularly, unlawful behavior or gross
negligence by a public officer. The misconduct is grave if it involves any
of the additional elements of corruption, willful intent to violate the law,
or to disregard established rules, which must be established by
substantial evidence. As distinguished from simple misconduct, the
elements of corruption, clear intent to violate the law, or flagrant
disregard of established rule, must be manifest in a charge of grave
misconduct.

Some administrative cases against Justices of the Court of Appeals and

the Sandiganbayan; judges of regular and special courts; and the court officials
who are lawyers are based on grounds which are likewise grounds for the
disciplinary action of members of the Bar for violation of the Lawyers Oath, the
Code of Professional Responsibility, and the Canons of Professional Ethics, or for
such other forms of breaches of conduct that have been traditionally recognized as
grounds for the discipline of lawyers.

In any of the foregoing instances, the administrative case shall also be

considered a disciplinary action against the respondent justice, judge or court
official concerned as a member of the Bar. The respondent may forthwith be
required to comment on the complaint and show cause why he should not also be
suspended, disbarred or otherwise disciplinary sanctioned as a member of the
Bar. Judgment in both respects may be incorporated in one decision or
resolution.

AM. No. 02-9-02-SC, the Court held:

Under the same rule, a respondent may forthwith be required to
comment on the complaint and show cause why he should not also be
suspended, disbarred or otherwise disciplinary sanctioned as member
of the Bar. The rule does not make it mandatory, before respondent
may be held liable as a member of the bar, that respondent be required
to comment on and show cause why he should not be disciplinary
sanctioned as a lawyer separately from the order for him to comment
on why he should not be held administratively liable as a member of
the bench. In other words, an order to comment on the complaint is an
order to give an explanation on why he should not be held
administratively liable not only as a member of the bench but also as a
member of the bar. This is the fair and reasonable meaning of
automatic conversion of administrative cases against justices and
judges to disciplinary proceedings against them as lawyers. This will
also serve the purpose of A.M. No. 02-9-02-SC to avoid the duplication
or unnecessary replication of actions by treating an administrative
complaint filed against a member of the bench also as a disciplinary
proceeding against him as a lawyer by mere operation of the rule.
Thus, a disciplinary proceeding as a member of the bar is impliedly
instituted with the filing of an administrative case against a justice of
the Sandiganbayan, Court of Appeals and Court of Tax Appeals or a
judge of a first- or second-level court.

It cannot be denied that respondents dishonesty did not only affect the
image of the judiciary, it also put his moral character in serious doubt
and rendered him unfit to continue in the practice of law. Possession of
good moral character is not only a prerequisite to admission to the bar
but also a continuing requirement to the practice of law. If the practice
of law is to remain an honorable profession and attain its basic ideals,
those counted within its ranks should not only master its tenets and
principles but should also accord continuing fidelity to them. The
requirement of good moral character is of much greater import, as
far as the general public is concerned, than the possession of
legal learning.

Public office is a public trust. This constitutional principle requires a

judge, like any other public servant and more so because of his exalted
position in the Judiciary, to exhibit at all times the highest degree of
honesty and integrity. As the visible representation of the law tasked
 with dispensing justice, a judge should conduct himself at all times in a
manner that would merit the respect and confidence of the people

Carrie-Anne Shaleen Caryle Reyes Vs. Atty. Ramon F. Nieva;

 Good moral character is a trait that every practicing lawyer is required to
possess. It may be defined as “what a person really is. Moral character is not
a subjective term but one which corresponds to objective reality.
 possession of good moral character is both a condition precedent and a
continuing requirement to warrant admission to the Bar and to retain
membership in the legal profession
Such requirement has four (4) ostensible purposes, namely:
(a) To protect the public;
(b) To protect the public image of lawyers;
(c) To protect prospective clients; and
(d) To protect errant lawyers from themselves.

 Good reputation, or from the opinion generally entertained of him, or the

estimate in which he is held by the public in the place where he is known.
 The quantum of proof by which the charges against respondent were
assessed was preponderance of evidence. Preponderance of evidence
“means evidence which is of greater weight, or more convincing than that
which is offered in opposition to it.
 The quantum of evidence required in civil cases is different from the quantum
of evidence required in administrative cases. In civil cases, preponderance of
evidence is required. Preponderance of evidence is “a phrase which, in the last
analysis, means probability of the truth. It is evidence which is more convincing
to the court as worthier of belief than that which is offered in opposition thereto.”

 In administrative cases, only substantial evidence is needed. Substantial

evidence, which is more than a mere scintilla but is such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion, would
suffice to hold one administratively liable. Based on a survey of cases, the
recent ruling on the matter is Cabas v. Sususco, which was promulgated just
this June 15, 2016. In the said case, it was pronounced that:

 In administrative proceedings, the quantum of proof necessary for a finding of

guilt is substantial evidence, i.e., that amount of relevant evidence that a
reasonable mind might accept as adequate to support a conclusion. Further,
the complainant has the burden of proving by substantial evidence the
allegations in his complaint. The basic rule is that mere allegation is not
 evidence and is not equivalent to proof. Charges based on mere suspicion and
speculation likewise cannot be given credence.

KALALO VS OBUDSMAN
 Duties of the Ombudsman

o As a general rule, courts do not interfere with the discretion of

the Ombudsman to determine whether there exists reasonable ground
to believe that a crime has been committed and that the accused is
probably guilty thereof and, thereafter, to file the corresponding
information with the appropriate courts.[11]

o This Court has consistently held that the Ombudsman has discretion to
determine whether a criminal case, given its facts and circumstances,
should be filed or not. It is basically his call. He may dismiss the
complaint forthwith should he find it to be insufficient in form and
substance, or should he find it otherwise, to continue with the inquiry; or
he may proceed with the investigation if, in his view, the complaint is in
due and proper form and substance.

NPC DRIVERS VS NPC

 The OSG, as officers of the court, “share in the task and responsibility of
dispensing justice and resolving disputes,” in addition to its sworn duty to
provide legal services to the Government. Under the circumstances, we can
neither permit nor condone any act that obstructs, perverts or impedes and
degrades the administration of justice. For employing legal schemes to delay
the execution of our final rulings that have long attained finality

CATU VS RELLOSA
 Respondent cannot be found liable for violation of Rule 6.03 of the Code of
Professional Responsibility. As worded, that Rule applies only to a lawyer who
has left government service and in connection “with any matter in which he
intervened while in said service.” In PCGG v Sandiganbayan, 455 SCRA 526
(2005) we ruled that Rule 6.03 prohibits former government lawyers from
accepting “engagement or employment in connection with any matter in which
[they] had intervened while in said service.” Respondent was an incumbent
 punong barangay at the time he committed the act complained of. Therefore,
he was not covered by that provision.

 Section 7(b)(2) of RA 6713 prohibits public officials and employees, during

their incumbency, from engaging in the private practice of their profession
“unless authorized by the Constitution or law, provided that such practice will
not conflict or tend to conflict with their official functions.” This is the general
law which applies to all public officials and employees. For elective local
government officials, Section 90 of RA 7160 governs: x x x This is a special
provision that applies specifically to the practice of profession by elective local
officials. As a special law with a definite scope (that is, the practice of
profession by elective local officials), it constitutes an exception to Section
7(b)(2) of RA 6713, the general law on engaging in the private practice of
profession by public officials and employees. Lex specialibus derogate
generalibus.

 Of these elective local officials, governors, city mayors and municipal mayors
are prohibited from practicing their profession or engaging in any occupation
other than the exercise of their functions as local chief executives. This is
because they are required to render full time service. They should therefore
devote all their time and attention to the performance of their official duties.
On the other hand, members of the sangguniang panlalawigan, sangguniang
panlungsod or sangguniang bayan may practice their professions, engage in
any occupation, or teach in schools except during session hours. In other
words, they may practice their professions, engage in any occupation, or
teach in schools outside their session hours. Unlike governors, city mayors
and municipal mayors, members of the sangguniang panlalawigan,
sangguniang panlungsod or sangguniang bayan are required to hold regular
sessions only at least once a week. Since the law itself grants them the
authority to practice their professions, engage in any occupation or teach in
schools outside session hours, there is no longer any need for them to secure
prior permission or authorization from any other person or office for any of
these purposes

 Certain local elective officials (like governors, mayors, provincial board

members and councilors) are expressly subjected to a total or partial
proscription to practice their profession or engage in any occupation, no such
interdiction is made on the punong barangay and the members of the
sangguniang barangay. Expressio unius est exclusion alterius. Since they are
excluded from any prohibition, the presumption is that they are allowed to
practice their profession. And this stands to reason because they are not
mandated to serve full time. In fact, the sangguniang barangay is supposed to
hold regular sessions only twice a month. Accordingly, as punong barangay,
respondent was not forbidden to practice his profession. However, he should
 have procured prior permission or authorization from the head of his
Department, as required by civil service regulations.

QUERY OF ATTY BUFFE

 Section 7 of R.A. No. 6713 generally provides for the prohibited acts and
transactions of public officials and employees. Subsection (b)(2) prohibits
them from engaging in the private practice of their profession during their
incumbency. As an exception, a public official or employee can engage in the
practice of his or her profession under the following conditions: first, the
private practice is authorized by the Constitution or by the law; and second,
the practice will not conflict, or tend to conflict, with his or her official functions.

 The Section 7 prohibitions continue to apply for a period of one year after the
public official or employee’s resignation, retirement, or separation from public
office, except for the private practice of profession under subsection (b)(2),
which can already be undertaken even within the one-year prohibition period.
As an exception to this exception, the one-year prohibited period applies with
respect to any matter before the office the public officer or employee used to
work with.

 In both the above discussed aspect of R.A. No. 6713 and the quoted Canon
3, the practice of law is covered; the practice of law is a practice of profession,
while Canon 3 specifically mentions any outside employment requiring the
practice of law.

 In Cayetano v. Monsod, we defined the practice of law as any activity, in and

out of court, that requires the application of law, legal procedure, knowledge,
training and experience. Moreover, we ruled that to engage in the practice of
law is to perform those acts which are characteristics of the profession; to
practice law is to give notice or render any kind of service, which device or
service requires the use in any degree of legal knowledge or skill. Under both
provisions, a common objective is to avoid any conflict of interest on the part
of the employee who may wittingly or unwittingly use confidential information
acquired from his employment, or use his or her familiarity with court
personnel still with the previous office.

 After separation from the service, Section 5, Canon 3 of the Code of Conduct
for Court Personnel ceases to apply as it applies specifically to incumbents,
but Section 7 and its subsection (b)(2) of R.A. No. 6713 continue to apply to
the extent discussed above. Atty. Buffe’s situation falls under Section 7
  As we discussed above, a clerk of court can already engage in the practice of
law immediately after her separation from the service and without any period
limitation that applies to other prohibitions under Section 7 of R.A. No. 6713.
The clerk of court’s limitation is that she cannot practice her profession within
one year before the office where he or she used to work with. In a comparison
between a resigned, retired or separated official or employee, on the one
hand, and an incumbent official or employee, on the other, the former has the
advantage because the limitation is only with respect to the office he or she
used to work with and only for a period of one year. The incumbent cannot
practice at all, save only where specifically allowed by the Constitution and
the law and only in areas where no conflict of interests exists. This analysis
again disproves Atty. Buffe’s basic premises.

 Considering Atty. Buffe’s ready admission of violating Section 7(b)(2), the

principle of res ipsa loquitur finds application, making her administratively
liable for violation of Rule 1.01 of Canon 1 and Canon 7 of the Code of
Professional Responsibility. In several cases, the Court has disciplined
lawyers without further inquiry or resort to any formal investigation where the
facts on record sufficiently provided the basis for the determination of their
administrative liability.

 The Court disbarred a lawyer without need of any further investigation after
considering his actions based on records showing his unethical misconduct;
the misconduct not only cast dishonor on the image of both the Bench and the
Bar, but was also inimical to public interest and welfare. In this regard, the
Court took judicial notice of several cases handled by the errant lawyer and
his cohorts that revealed their modus operandi in circumventing the payment
of the proper judicial fees for the astronomical sums they claimed in their
cases. The Court held that those cases sufficiently provided the basis for the
determination of respondents’ administrative liability, without need for further
inquiry into the matter under the principle of res ipsa loquitur

LINSANGAN VS TOLENTINO
 “ambulance chasing” (the solicitation of almost any kind of legal business by
an attorney, personally or through an agent in order to gain employment) as a
measure to protect the community from barratry and champerty.

 A lawyer’s best advertisement is a well-merited reputation for professional

capacity and fidelity to trust based on his character and conduct. For this
reason, lawyers are only allowed to announce their services by publication in
reputable law lists or use of simple professional cards.

 Professional calling cards may only contain the following details:

(a) lawyer’s name;
(b) name of the law firm with which he is connected;
(c) address;
(d) telephone number; and,
(e)special branch of law practiced.