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Negligence and Liabilities

of Counsel
CANON 19 A lawyer shall
represent his client with
zeal within the bounds of
the law.

Rule 19.01
A lawyer shall employ only fair
and honest means to attain the
lawful objectives of his client and
shall not present, participate in
presenting or threaten to present
unfounded criminal charges to
obtain an improper advantage in
any case or proceeding.

Rule 19.02
A lawyer who has received
information that his client has, in
the course of the representation,
perpetuated a fraud upon a person
or tribunal, shall promptly call upon
the client to rectify the same, and
failing which he has to terminate
the relationship with such client in
accordance with the Rules of Court.

Problems:
1.

In the course of a drinking spree with Atty.


Lucero who has always been his counsel in
business deals, Juan Miguel bragged about
his recent sexual adventures with socialites
known for their expensive tastes. When Atty.
Lucero asked Juan Miguel how he manages to
finance his escapades, the latter answered
that he has been using the bank deposits of
rich clients of Banco De Oro where he works
as manager. If you are Atty. Lucero, do you
think you are compelled to do any action
with regard to this information? If you are,
what actions are you supposed to take under
the circumstances?

Cont.
2. You are counsel for Mr. Ayala in a
probate proceedings where you
presented a will which was
admitted to probate. After the
termination of the case, you found
out that there was forgery in will.
What would you do under the
circumstances?

Rule 19.01
A lawyer who has received
information that his client has, in
the course of the representation,
perpetuated a fraud upon a person
or tribunal, shall promptly call upon
the client to rectify the same, and
failing which he has to terminate
the relationship with such client in
accordance with the Rules of Court.

Note:

A lawyer should do his best efforts to


restrain and to prevent his clients from
perpetrating acts which he himself ought
not to do. Or else, withdraw. But lawyer
shall not volunteer the information about
the clients commission of fraud to
anyone Duty to maintain clients
confidence and secrets. (Ateneo Bar
Review Op. Material)

Rule 19.03
A lawyer shall not
allow his client to
dictate the procedure
in handling the case.

General Rule On Negligence


of Counsel:
Negligence binds client. A client is
bound by the acts, even mistakes, of his
counsel in the realm of procedural
technique. However, a lawyer is not
liable for mere error in judgment.
Lawyers, cannot, after due diligence, be
held accountable for losing a litigation.
Otherwise, every unsuccessful litigant
might recover damages from lawyer
after every defeat, and that would make
the lawyers position hazardous.

Melchor L. Lagua vs. CA and People


of the Phils. G.R. No. 173390, June
27, 2012
Petitioner was represented by private
counsel (and notcounsel de oficio) to whom
the CA had granted multiple extensions: two
for Atty. Quimpo; and two for Atty. Barrientos,
whose Notice of Appearance was submitteda
month afterthe Show Cause Order of 8 July
2005. As for Atty. Quimpo, he filed his
Manifestationmore than a month after the CA
had first issued the dismissal. (cont.)

Cont...
It was only because of the plea for
compassion in petitioners Motion for
Reconsideration that the CA granted him
another 30 days in order to secure the
services of another lawyer. Again,
petitioner failed to comply. Both he and the
new counsel, Atty. Barrientos, also failed to
comply with the second Show Cause
Order...

Cont...
In his Petition, Lagua bewails the
negligence and mishandling by his two previous
counsels as the reason for the delay, which has
lasted for more than two years. However, it is
clear from the facts that despite the liberality
and consideration afforded to him by the CA, he
is by no means blameless. More importantly, his
excuse cannot serve as a substitute for the
jurisdictional requirements under Rule 65. It
does not amount to any grave abuse of
discretion tantamount to lack or excess of
discretion that may be attributable to the
appellate court...

Note:
Nothing is more settled than the rule
that the negligence and mistakes of
counsel are binding on the client.
Otherwise, there would never be an end to
a suit, so long as counsel could allege its
own fault or negligence to support the
clients case and obtain remedies and
reliefs already lost by the operation of law.

However
Liability on the part of the
lawyer arises only when his
error or misconduct in the
discharge of his duties is so
gross and deprives the
client of due process.

Thus, the exceptions to


the general rule

Reckless imprudence (deprives


client of due process)

Results in outright deprivation


of ones property through
technicality

HENRY ONG LAY HIN, PETITIONER, VS. CA (2ND


DIVISION), HON. GABRIEL T. INGLES, AS PRESIDING
JUDGE OF RTC BRANCH 58, CEBU CITY, AND PEOPLE OF
THE PHILIPPINES, RESPONDENTS. G.R. No. 191972, Jan.
26, 2015

But, there is an exception to


this doctrine of binding agency
between counsel and client. This is
when the negligence of counsel is
so gross, almost bordering on
recklessness and utter
incompetence, that we can safely
conclude that the due process
rights of the client were violated.

Thus, inBejarasco, Jr. v. People, this


court reiterated:
For the exception to apply . . . the gross
negligence should not be accompanied
by the clients own negligence or
malice, considering that the client has
the duty to be vigilant in respect of his
interests by keeping himself up-to-date
on the status of the case. Failing in this
duty, the client should suffer whatever
adverse judgment is rendered against
him.

Cont...
Even so, there must be a clear and
convincing showing that the client was
so maliciously deprived of information
that he or she could not have acted to
protect his or her interests. The error
of counsel must have been both
palpable yet maliciously exercised
that it should viably be the basis for
disciplinary action.

Another rule

A lawyer must not present


in evidence any document
known to be false; nor
present a false witness

Judicial Affidavit Rule


(A.M. No. 12-8-8-SC)
Section 4.Sworn attestation of the lawyer.(a) The judicial affidavit shall contain a sworn
attestation at the end, executed by the lawyer who
conducted or supervised the examination of the
witness, to the effect that:
(1) He faithfully recorded or caused to be
recorded the questions he asked and the
corresponding answers that the witness gave; and
(2) Neither he nor any other person then present
or assisting him coached the witness regarding the
latter's answers.
(b) A false attestation shall subject the lawyer
mentioned to disciplinary action, including disbarment.

Also

Negative pregnant is
improper since it is an
ambiguous pleading
(improper if in bad faith and
the purpose is to confuse
the other party)

Note:

In defense: a lawyer
should present
every defense the
law permits

Liabilities of Lawyers

CIVIL
CRIMINAL
ADMINISTRATIVE

Civil Liability
a. Client is prejudiced by
lawyer's negligence or
misconduct
b. Breach of fiduciary
obligation
c. Civil liability to third persons

d.

Libelous words in pleadings General rule: Lawyers are exempted


from liability for libel or slander for
words otherwise defamatory
published in the course of judicial
proceedings provided they are
material, pertinent or relevant to the
cause on hand. One loses this
privilege if the pleader goes beyond
the requirements of the law.

e. Liability for costs of suit when lawyer is made liable


for insisting on client's
patently unmeritorious
case or interposing appeal
merely to delay litigation

Criminal Liability

Prejudicing client through


malicious breach of professional
duty
Revealing client's secrets
Representing adverse interests
Introducing false evidence
Misappropriating client's funds
(estafa)

Contempt of Court
Kinds of Contempt:

Direct - consists of misbehavior


in the presence of or so near a
court or judge as to interrupt or
obstruct the proceedings before
the court or the administration
of justice; punished summarily.

Indirect - one committed away


from the court involving
disobedience of or resistance
to a lawful writ, process, order,
judgment or command of the
court, or tending to belittle,
degrade, obstruct, interrupt or
embarrass the court

Civil - failure to do
something ordered by the
court which is for the benefit
of a party.
Criminal - any conduct
directed against the
authority or dignity of the
court.

Acts Constituting Contempt:

Misbehavior
Disobedience
Publication concerning pending litigation
Publication tending to degrade the court;
disrespectful language in pleadings
Misleading the court or obstructing
justice
Unauthorized practice of law
Belligerent attitude
Unlawful retention of client's funds

DIRECT VS. INDIRECT


CONTEMPT:

DIRECT CONTEMPT no formal


charge is necessary and the
proceedings is summary in nature.

INDIRECT CONTEMPT Sections 3


and 4 of Rule 71 of the Rules of
Court.

RULE 71
CONTEMPT
Section 1. Direct contempt punished summarily.

A person guilty of misbehavior in the presence


of or so near a court as to obstruct or interrupt
the proceedings before the same, including
disrespect toward the court, offensive
personalities toward others, or refusal to be
sworn or to answer as a witness, or to
subscribe an affidavit or deposition when
lawfully required to do so, may be summarily
adjudged in contempt by such court and
punished by a fine not exceeding two
thousand pesos or imprisonment not
exceeding ten (10) days, or both, X x x

Sec. 2. Remedy therefrom.

The person adjudged in direct


contempt by any court may not
appeal therefrom, but may avail
himself of the remedies of certiorari
or prohibition. The execution of the
judgment shall be suspended pending
resolution of such petition, provided
such person files a bond fixed by the
court which rendered the judgment
and conditioned that he will abide by
and perform the judgment should the
petition be decided against him.

Sec. 3. Indirect contempt to be


punished after charge and hearing.

After a charge in writing has been filed,


and an opportunity given to the
respondent to comment thereon within
such period as may be fixed by the court
and to be heard by himself or counsel, a
person guilty of any of the following
acts may be punished for indirect
contempt:
(a) Misbehavior of an officer of a court
in the performance of his official duties
or in his official transactions;

(b) Disobedience of or resistance to a lawful


writ, process, order, or judgment of a court,
including the act of a person who, after being
dispossessed
or ejected from any real property by the
judgment or process of any court of
competent jurisdiction, enters or attempts or
induces another to enter into or upon such
real property, for the purpose of executing
acts of ownership or possession, or in any
manner disturbs the possession given to the
person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference
with the processes or proceedings of a court
not constituting direct contempt under
section 1 of this Rule;

(d) Any improper conduct tending,


directly or indirectly, to impede,
obstruct, or degrade the administration
of justice;
(e) Assuming to be an attorney or an
officer of a court, and acting as such
without authority;
(f) Failure to obey a subpoena duly
served;
(g) The rescue, or attempted rescue, of a
person or property in the custody of an
officer by virtue of an order or process of
a court held by him.
X x x.

Sec. 4. How proceedings


commenced.

Proceedings for indirect


contempt may be initiated motu
proprio by the court against
which the contempt was
committed by an order or any
other formal charge requiring
the respondent to show cause
why he should not be punished
for contempt.

Cont
In all other cases, charges for indirect
contempt shall be commenced by a verified
petition with supporting particulars and
certified true copies of documents or
papers involved therein, and upon full
compliance with the requirements for filing
initiatory pleadings for civil actions in the
court concerned. If the contempt charges
arose out of or are related to a principal
action pending in the court, the petition for
contempt shall allege that fact but said
petition shall be docketed, heard and
decided separately, unless the court in its
discretion orders the consolidation of the
contempt charge and the principal action
for joint hearing and decision.

Sec. 5. Where charge to be filed.

Where the charge for indirect contempt


has been committed against a Regional
Trial Court or a court of equivalent or
higher rank, or against an officer
appointed by it, the charge may be filed
with such court. Where such contempt has
been committed against a lower court, the
charge may be filed with the Regional Trial
Court of the place in which the lower court
is sitting; but the proceedings may also be
instituted in such lower court subject to
appeal to the Regional Trial Court of such
place in the same manner as provided in
section 2 of this Rule.

Sec. 6. Hearing; release on bail.

If the hearing is not ordered to be


had forthwith, the respondent may be
released from custody upon filing a
bond, in an amount fixed by the
court, for his appearance at the
hearing of the charge. On the day set
therefor, the court shall proceed to
investigate the charge and consider
such comment, testimony or defense
as the respondent may make or offer.

Sec. 7. Punishment for indirect contempt.

If the respondent is adjudged guilty of indirect


contempt committed against a Regional Trial
Court or a court of equivalent or higher rank, he
may be punished by a fine not exceeding thirty
thousand pesos or imprisonment not exceeding
six (6) months, or both. If he is adjudged guilty
of contempt committed against a lower court,
he may be punished by a fine not exceeding five
thousand pesos or imprisonment not exceeding
one (1) month, or both. If the contempt consists
in the violation of a writ of injunction,
temporary restraining order or status quo order,
he may also be ordered to make complete
restitution to the party injured by such violation
of the property involved or such amount as may
be alleged and proved.
Xxx

Sec. 8. Imprisonment until order


obeyed.

When the contempt consists in


the refusal or omission to do an
act which is yet in the power of
the respondent to perform, he
may be imprisoned by order of
the court concerned until he
performs it.

liar
perjurer
blasphemer
crafted in order to fool the
winning party
hypocritical judgment in
plaintiffs favor
you could have sworn it was the
devil who dictated it

robber
manipulator
cross-eyed

We concede that a lawyer may think highly


of his intellectual endowment. That is his
privilege. And he may suffer frustration as
to
what he feels is others lack of it. That is
his misfortune. Such frame of mind,
however, should not be allowed to harden
into a belief that he may attack a courts
decision in words calculated to jettison the
time-honored aphorism that courts are the
temples of right. He should give due
allowance to the fact that judges are but
men; and men are encompassed by error,
fettered by fallibility. Tiongco vs. Aguilar,
G.R. 115932 (January 25, 1995)

It does not, however, follow


that just because a lawyer
is an officer of the court, he
cannot criticize the courts.
That is his right as a citizen,
and it is even his duty as an
officer of the court. (Ibid.)

Problems:
1. A pastor, frustrated with the legal system,
called for a press conference and claimed that
the judiciary is evil. Is he liable for any civil or
criminal liability?
2. A practicing lawyer, disgusted with the result
of his cases, called for a press conference and
claimed that the judiciary is evil. Is he liable
for any civil, criminal or administrative liability?
3. If your answers to 1 and 2 are the same,
state the reasons for the similarity. If different,
state the rationale for the difference.

Review:
ADMINISTRATIVE
LIABILITIES OF
LAWYERS

Main Objectives of Disbarment and


Suspension:

to compel the attorney to deal fairly and


honestly with his clients;
to remove from the profession a person whose
misconduct has proved him unfit to be
entrusted with the duties and responsibilities
belonging to the office of an attorney;
to punish the lawyer;
to set an example or a warning for the other
members of the bar;
to safeguard the administration of justice from
incompetent and dishonest lawyers;
to protect the public

Characteristics of Disbarment
Proceedings:

Neither a civil nor criminal proceedings;


Double jeopardy cannot be availed of in a
disbarment proceeding;
It can be initiated motu propio by the SC or
IBP. It can be initiated without a complaint;
It is imprescriptible;
Conducted confidentially;
It can proceed regardless of the interest of the
lack thereof on the part of the complainant;
It constitutes due process.

Grounds for Disbarment or


Suspension:

deceit;
malpractice or other gross misconduct in office;
grossly immoral conduct;
conviction of a crime involving moral turpitude;
violation of oath of office;
willful disobedience of any lawful order of a
superior court;
corrupt or willful appearance as attorney for a
party to case without authority to do so (Sec.
27, Rule 138, RRC)

Quantum of Proof
Required:

CLEAR, CONVINCING
& SATISFACTORY
evidence

Burden of Proof:

Rests on the
COMPLAINANT, the one
who instituted the suit

Officers authorized to investigate


Disbarment cases:

Supreme Court
IBP through its Commission on
Bar Discipline or authorized
investigator
Office of the Solicitor General

Note: Mitigating Circumstances


in Disbarment:

Good faith in the acquisition of a property


of the client subject of litigation (In re:
Ruste, 70 Phil. 243)
Inexperience of the lawyer (Munoz v.
People, 53 SCRA 190)
Age (Lantos v. Gan, 196 SCRA 16)
Apology (Munoz v. People, 53 SCRA 190)
Lack of Intention to slight or offend the
Court (Rhum of the Philippines, Inc. v.
Ferrer, 20 SCRA 441).

Assignment:

Review conflict of interest; nature


and creation of attorney-client
relationship and contract for
attorneys fees.