Memory Aid - Ethics
Memory Aid - Ethics
Memory Aid - Ethics
I. LEGAL ETHICS
Legal Ethics branch of moral science which treats of the duties which an attorney owes to the court, to his client, to his colleagues in the profession and to the public.
The Supreme Court under Sec. 5(5), Art. VIII of the 1987 Constitution shall have the power to admit candidates to the practice of law.
The constitutional power to admit candidates to the legal profession is a judicial function and involves the exercise of discretion. Petition to that end is filed with the Supreme Court as are other proceedings invoking judicial function (In re: Almacen 31 SCRA 562)
The Code of Professional Responsibility was initially drafted in 1980 by the IBP Committee On Responsibility, Discipline and Disbarment and was submitted to the Supreme Court for approval. It took the Supreme Court more than seven years to decide on its formal promulgation as a code of conduct for members of the Bar. The Code of Professional Responsibility was finally promulgated by the Supreme Court on June 21,1988. The Code is a judicial command, not a suggestion, promulgated as it is by no less than the Highest Court of the land which has supremacy of supervision over all members of the Bar. Practice of Law means any activity in or out of court which requires the application of law, legal principle, practice or procedure and calls for legal knowledge, training and experience. To engage in the practice of law is to perform those acts which are characteristics of the legal profession. Generally, to practice law is to give notice or render any kind of service, which devise or service requires the use, in any degree, of legal knowledge or skill. Q: Atty. A has plans to join the judiciary. He has been a lawyer for about twenty years now. He has been a legal consultant to a number of business entities, and an of counsel of a medium sized law firm. Never during his 20 year stint as a lawyer, has he had the opportunity to conduct any actual trial or litigation work. Does he possess the necessary qualifications for a Regional Trial Court judge? A: YES. In Cayetano vs. Monsod 201 SCRA 210, the Supreme Court defined the practice of law as any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. Under the said definition, Atty. A is qualified to be appointed as a member of the judiciary, assuming that he has the other qualifications for the particular position. Strictly speaking, the word practice of law implies the customary or habitual holding of oneself to the public as a lawyer and demanding compensation foe his services. (People vs. Villanueva 14 SCRA 111) The practice of law is not a property right but a mere privilege and as such must bow to the inherent regulatory power of the Court to exact compliance with the lawyers public responsibilities. (In re Edillion 84 SCRA 568)
The SC acts through a Bar Examination Committee in the exercise of its judicial function to admit candidates to the legal profession. Thus, the Committee is composed of a member of the Court who acts as Chairman and 8 members of the bar who acts as examiners in the 8 bar subjects with one subject assigned to each. (In re: Lanuevo 66 SCRA 245)
1
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA, Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
Q: Is the practice of law a right or a privilege? A: The practice of law is basically a privilege because it is limited to persons of good moral character with special qualifications duly ascertained and certified. However, Prof. Agpalo in his book has pointed out that the practice of law is also a right because a lawyer holds office during good behavior and he cannot be deprived of the right to practice law except for misconduct ascertained and declared by judgment of the court after observing due process.
of
Private Practice is more than an isolated appearance for it consists of frequent or customary actions, a succession of acts of the same kind. An isolated appearance may, however, amount to practice in relation to the rule prohibiting some persons from engaging in the exercise of the legal profession. The fact that the service is rendered before a quasi-judicial or administrative agency and not before the court is immaterial to the question as to whether the service constitutes practice of law because the character of the service, and not the place where it is performed, is the decisive factor determinative of that question
Habituality- implies customarily or habitually holding oneself out to the public as a lawyer 2. Compensation- implies that one must have presented himself to be in the active practice and that his professional services are available to the public for compensation, as a source of his livelihood or in consideration of his said services. 3. Application of law, legal principe, practice, or procedure which calls for legal knowledge, training and experience is within the term practice of law 4. Attorney client relationship The practice of law is not a natural, property or constitutional right but a mere privilege. But while the practice of law is a privilege, a lawyer cannot be prevented from practicing law except for valid reasons, the practice of law not being a matter a states grace or favor. 1. He holds office during good behavior and can only be deprived of it for misconduct ascertained and declared by judgment of the court after opportunity to be heard has been afforded him. The state cannot exclude an attorney from the practice of law in a manner or for reasons that contravene the due process or equal protection clause of the Constitution. No court, including a court-martial, can deny an attorney the right to appear before it for a party litigant, in the absence of a valid statutory limitation or ground disqualifying him to practice. A quasi-judicial or administrative agency cannot restrict his privilege to practice law by imposing conditions that amount to discrimination, nor limit such privilege by requiring the passing of an examination that is not expressly sanctioned by law as a prerequisite to appearing before such agency. 2. The practice of law is in the nature of a right which cannot be lightly or capriciously restricted or taken away from him.
2
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
Privileges of Attorney:
1. Has the privilege and right to practice law during good behavior before any judicial, quasi-judicial, or administrative tribunal. 2. He has the privilege as the first one to sit in judgment on every case, to set the judicial machinery of his duty. 3. Enjoys the presumption of regularity in the discharge of his duty. 4. He is immune, in the performance of his obligation to his client, from liability to a third person insofar as he does not materially depart from his character as a quasi-judicial officer. 5. His statement, if relevant, pertinent or material to the subject of judicial inquiry are absolutely privileged regardless of their defamatory tenor and of the presence of malice.
Academic Candidates
Requirements
for
1. Must have already earned a Bachelors Degree in Arts or Sciences (Pre-law) 2. Law Course completed courses in Civil Law, Commercial Law, Remedial Law, Criminal Law, Public and Intl Law, Political Law, Labor and Social Legislation, Medical Jurisprudence, Taxation, Legal Ethics. (Sec. 5 and 6, Rule 138) 8. Pass the bar examinations Moral Turpitude imports an act of baseness, vileness or depravity in the duties which one person owes to another or to society in general which is contrary to the usual accepted and customary rule of right and duty which a person should follow. The question as to whether an offense involves moral turpitude is for the Supreme Court to decide.
Other Privileges:
1. The passing of the bar examinations is equivalent to a first grade civil service eligibility for any position in the classified service in the government the duties of which require knowledge of law.
3
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
2. Second grade civil service eligibility for any other government position which does not prescribe proficiency in law as a qualification.
b.
c. d.
honor and reputation of a party or witness, unless required by the justice of the cause with which he is charged 7. Not to encourage either the commencement or the continuance of an action or proceeding, or delay any mans cause, from any corrupt motive or interest 8. Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed 9. In the defense of a person accused of crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits to the end that no person may be deprived of life or liberty, but by due process of law.
The Primary Characteristics which Distinguish the Legal Profession from Business
1. Legal Profession is a duty of public service 2. A relation, as an officer of the court, to the administration of justice involving thorough sincerity, integrity and reliability 3. A relation to clients with the highest degree of fiduciary 4. A relation to the colleagues at the bar characterized by candor, fairness and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
4.
5.
6. 7.
A law student who has successfully completed his 3rd yr. Of the regular 4 yr. Prescribed law curriculum and is enrolled in a recognized law schools clinical legal education program approved by the SC may appear without compensation in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to represent indigent clients accepted by the Legal Clinic of the school. (Sec. 1, Rule 138-A) The student shall be under direct supervision and control of a member of the IBP duly accredited by the law school. (Sec. 2) Under the Labor Code non-lawyers may appear before the NLRC or any Labor Arbiter if they (a) represent themselves; (b) represent their organization or members thereof (Art. 222, PD 442) A non-lawyer may represent a claimant before the Cadastral Court (Sec. 9, Act. No. 2259) Any person appointed to appear for the government of the Philippines in accordance with law (Sec. 33, Rule 138)
Reasons: 1. Nature of the privilege and on the confidential and trust relation between attorney and client. 2. A corporation cannot perform the conditions required for membership in the bar, such as the possession of good moral character and other special disqualifications, the taking of an oath and becoming an officer of the court, subject to its discipline, suspension or removal. 3. The relation of trust and confidence cannot arise where the attorney is employed by a corporation to practice for it, his employer and he owing, at best, a secondary and divided loyalty to the clientele of his corporate employer. 4. The intervention of the corporation is destructive of that confidential and trust relation and is obnoxious to the law. Q: Is pro se practice allowed in the Philippines? Explain. A: YES. Section 34, Rule 138 of the Revised Rules of Court provides as follows: By whom litigation conducted.--In the court of 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 purposes, 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.
Q: A and B, both lawyers, and C, a certified public accountant, in order to enhance their respective practice, decided to pool their resources together and establish a partnership for the combined purposes of law and accounting under the firm name of A, B, C and Associates. Is the proposed partnership allowed? A: NO. In the formation of partnership for the practice of law, no person should be admitted or held out as a practitioner or member who is not a member of the legal profession duly authorized to practice, and amenable to professional discipline. Partnerships between lawyers and members of other professions or nonpartnerships employment consists of the practice of law.
Right of Himself
Party
to
Represent
Practice by Corporation
It is well-settled that a corporation CANNOT engage in the practice of law. It may, however, hire an attorney to attend to and conduct its own legal business or affairs. It is not unusual for a big corporation to hire a staff of lawyers as its in-house counsel, pay them regular salaries, rank them in its table of organization, and otherwise treat them like its other officers and employees. But it cannot practice law directly or indirectly by employing a lawyer to practice for it or to appear for others for its benefit.
Civil Cases: An individual litigant has the right to conduct his litigation personally. Criminal Cases: Involving grave and less grave offenses, an accused who is a layman must always appear by 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. By a Juridical Person: A juridical person must always appear in court by a duly licensed member of the bar, except in the municipal trial court where it may be represented by its agent or officer who need not be a lawyer.
Any official or other person appointed or designated in accordance with law to appear for the government of the Philippines or any of its officials shall have all the rights of a duly authorized member of the bar to appear in any
5
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
case in which the government has an interest, direct or indirect, or in which such official is charged in his official capacity.
of
Non-
2. 3.
He should confine his work to nonadversary contentions. He should not undertake purely legal work, such as the examination or cross-examination of witnesses, or the presentation of evidence. Services should not be habitually rendered. Should not charge or collect attorneys fees. (PAFLU vs. Binalbagan Isabela Sugar Co. 42 SCRA 302)
congressman, the office of an attorney being originally of agency, and because he will, by such act, be appearing in court or quasi-judicial or administrative body in violation of the constitutional restriction. He cannot do indirectly what the Constitution prohibits directly. (In re: David 93 PHIL 461)
The word appearance includes not only arguing a case before any such body but also filing a pleading on behalf of a client as by simply filing a formal motion, plea or answer. (Ramos vs. Manalac 89 PHIL 270)
Neither can he allow his name to appear in such pleading by itself or as part of a firm name under the signature of another qualified lawyer because the signature of an agent amounts to signing of a non-qualified senator or
6
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
TERMS TO REMEMBER:
Bar and Bench Bar refers to the whole body of attorneys and counselors collectively, the members of the legal profession: Bench denotes the whole body of judges. Lawyer this is the general term for a person trained in the law and authorized to advice and represent others in legal matters Trial Lawyer one who personally handles cases in court, administrative agencies of boards which means engaging in actual trial work, either for the prosecution or for the defense of cases of clients. Practising Lawyer one engaged in the practice of law. All trial lawyers are practising lawyers, but not all practising lawyers are trial lawyers. Client one who engages the services of a lawyer for legal advice or for purposes of prosecuting or defending a suit in behalf and usually for a fee. Attorneys-At-Law that class of persons who are licensed officers of the courts empowered to appear, prosecute and defend, and upon whom peculiar duties, responsibilities and liabilities are developed by law as a consequence. Counsel/Attorney de oficio is an attorney appointed by the court to defend an indigent defendant in a criminal action. In a criminal action, if the defendant appears without an attorney, he must be informed by the court that it is his right to have an attorney before being arraigned and must be asked if he desires the aid of an attorney. If he desires and is unable to employ an attorney, the court must assign a counsel de oficio to defend him. The appointment of a counsel de oficio in that instance is a matter of right on the part of the defendant. On appeal in a criminal case, the appellate court must also appoint a counsel de oficio if, as shown by the certificate of the clerk of court of the trial court, a defendant (a) is confined in prison, (b) without means to employ an attorney, (c) desires to be defended de oficio. Atty. ad hoc- a person named appointed by the court to defend an absentee defendant in the suit in which the appointment is made. Attorney of record- is the attorney whose name is entered in the records of an action or suit as the lawyer of a designated party thereto. Of Counsel to distinguish them from attorneys of record, they are associate attorneys
7
Atty. in fact- is simply an agent whose authority is strictly limited by the instrument appointing him. His authority is provided in a special power of attorney or general power of attorney or letter of attorney. He is not necessarily a lawyer. Lead Counsel the counsel on either side of a litigated action who is charged with the principal management and direction of a partys case, as distinguished from his juniors or subordinates. House Counsel one who acts as attorney for business though carried as an employee of that business and not as an independent lawyer. Pro Se - an appearance by a lawyer in his own behalf Notary Public- public officers whose duty is to attest to the genuineness of any deed or writing in order to render them available as evidence of the facts stated therein, and who is authorized by statute to administer various oaths. Amicus Curiae- is an experienced and impartial attorney invited by the court to appear and help in the disposition of the issues submitted to it. It implies friendly intervention of counsel to call the attention of the court to some matters of law or facts which might otherwise escape its notice and in regard to which it might go wrong. An amicus curiae appears in court not to represent any particular party but only to assist the court. Amicus Curiae par excellence bar associations who appear in court as amici curiae or friends of the court. Acts merely as a consultant to guide the court in a doubtful question or issue pending before it. Bar Association an association of members of the legal profession like the IBP where membership is integrated or compulsory. Duty of Counsel de Officio A counsel de officio is expected to render effective service and to exert his best efforts on behalf of an indigent accused. He has as high a duty to a poor litigant as to a paying client. He should have a bigger dose of social conscience and a little less of self-interest. Duty of Public Prosecutor The primary duty of a public prosecutor is not to convict but to see that justice is done. He owes the state, the court and the accused the duty to lay before the courts the pertinent facts at his disposal with methodical attention filling up the gaps and loopholes in evidence to the end that the courts mind may not be tortured by doubts, the innocent may not suffer and the guilty may not escape punishment. It is as much his duty to refrain from improper methods calculated to produce wrongful conviction as it is to use legitimate
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
means to bring about a just one. Also, he should not hesitate to recommend to the court the accuseds acquittal if the evidence in his possession shows that the accused is innocent. Role of Private Prosecutor A private prosecutor may intervene in the prosecution of a criminal action when the offended party is entitled to indemnity and has not waived expressly, reserved or instituted the civil action for damages. There is nothing objectionable about it as long as the public prosecutor is always present at every hearing, retains control thereof, and without allowing the trial in the hands of a private prosecutor to degenerate to public prosecutor.
12. Duty to assist in the speedy and efficient administration of justice 13. Rely upon the merits of his cause, refrain from any impropriety which tends to influence courts, or give the appearance of influencing the court Chapter IV: The Lawyer and the Client
CANON 14. Not refuse his services to the needy 15. Observe candor, fairness and loyalty in all his dealings and transactions with clients 16. Hold in trust all the moneys and property of his client that may come to his possession 17. Owes fidelity to clients cause and be mindful of the trust and confidence reposed in him 18. Serve client with competence and diligence 19. Represent client with zeal and within the bounds of law 20. Charge only fair and reasonable fees 21. Preserve the confidence and secrets of client even after the atty.client relation is terminated 22. Withdraw services only for good cause and upon notice
CANON 1. 2. 3. 4. 5. Uphold the Constitution and obey the laws of the land Make legal services available in an efficient and convenient manner Use of true, honest, fair, dignified and objective information in making known legal services Participate in the improvement of the legal system Keep abreast of legal development and participate in continuing legal education program and assist in disseminating information regarding the law and jurisprudence Applicability of the CPR to lawyers in the government service
6.
CANON 7. 8. At all times uphold the integrity and dignity of the Profession and support the activities of the IBP Conduct himself with courtesy, fairness and candor toward his colleagues and avoid harassing tactics Not to directly or indirectly assist in the unauthorized practice of law
9.
CANON 10. Owes candor, fairness and good faith to the court 11. Observe and maintain the respect due courts and judicial officers
8
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
A: Both are improper and unethical acts of a lawyer. However, ambulance chasing refers more to a lawyer who instigates a victim in a motor vehicle accident to file a case. Barratry is any form of fomenting suit.
2. Engaging in business or other occupations except when such could be deemed improper, be seen as indirect solicitation or would be the equivalent of law practice. 3. Law lists, but only brief biographical and informative data 4. Ordinary, professional cards 5. Notice to other local lawyers and publishing in a legal journal of ones availability to act as an associate for them 6. The proffer of free legal services to the indigent, even when broadcast over the radio or tendered through circulation of printed matter to the general public. 7. Seeking a public office, which can only be held by a lawyer or, in a dignified manner, a position as a full time corporate counsel. 8. Simple announcement of the opening of a law firm or of changes in the partnership, associates, firm name or office address, being for the convenience of the profession. 9. Listing in a phone directory, but not under a designation of a special branch of law. 10. Activity of an association for the purpose of legal representation.
A lawyer shall NOT, after leaving the government service, accept engagement or employment in connection with any matter in which he had intervened while in said service. (Rule 6.03, Code of Professional Responsibility) Section 7 (b), RA 6713 prohibits any former public official or employee for a period of one year after retirement or separation from office to practice his profession in connection with any other matter before the office he used to be with.
Solicitation of Malpractice
Cases
Constitutes
The law prohibits lawyers from soliciting cases for the purpose of gain, either personally or through paid agents or brokers and makes the act malpractice (Rule 138, sec. 27, Rules of Court). The rule prohibits professional touting. Neither shall a lawyer charge rates lower than those customarily prescribed unless the circumstances so warrant.
General Rule: A lawyer cannot advertise his talent as he is a member of an honorable profession whose primary purpose is to render public service and help secure justice and in which the remuneration is a mere incident. It is highly unethical for an attorney to advertise his talents or skill as a merchant advertises his wares. (In re: Tagorda 53 PHIL 42)
In the choice of a firm name, no false, misleading or assumed name shall be used. The continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased. (Rule 3.02, Code of Professional Responsibility). Hence, the rule abandoned the doctrine laid down in the case of In re: Sycip 92 SCRA 1 (1979). Reason: All of the partners by their joined efforts over a period of years contributed to the goodwill attached to the firm name, and this goodwill is disturbed by a change in firm name every time a partner dies. Where a partner accepts public office, he shall withdraw from the firm and his name shall be dropped from the firm name unless the
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
law allows him to practice concurrently.( Rule 3.02, Code of Professional Responsibility).
A lawyer shall NOT appear for trial unless he has adequately prepared himself on the law and the facts of his case, the evidence he will adduce and the order of its preference. He should also be ready with the original documents for comparison with the copies. (Rule 12.01 Code of Professional Responsibility) A lawyer shall NOT unduly delay a case, impede the execution of judgment or misuse court processes. (Rule 12.04, Code of Professional Responsibility) The duty of a lawyer to assist in the speedy and efficient administration of justice includes the duty to refrain from talking to his witness during a break or recess in the trial while the witness is still under examination.
A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court. (Rule 13, Code of Professional Responsibility) A lawyer shall not extend extraordinary attention or hospitality to nor seek opportunity for cultivating familiarity with judges ( Rule 13.01, Code of Professional Responsibility) A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party. (Rule 13.02, Code of Professional Responsibility) A lawyer shall not brook nor invite interference by another branch or agency of the government in the normal course of judicial proceedings. (Rule 13.03 Code of Professional Responsibility) FORUM SHOPPING the filing of repetitious suits in different courts. The penalties for the violation of Supreme Court Circular No. 28-91, preventing forum shopping, are the following: 1. Any violation of this circular shall be a cause for the summary dismissal of the multiple petition or complaint; 2. Any willful and deliberate forum shopping by any party and his lawyer with the filing of multiple petitions or complaints to ensure favorable action shall constitute direct contempt of court; 3. The submission of a fake certification under par. 2 of the Circular shall likewise constitute contempt of court, without prejudice to the filing of a criminal action against the guilty party. The lawyer may
Observance Courts
of
Respect
Due
the
A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others. (Canon 11, Code of Professional Responsibility) A lawyer should show respect due the court and judicial officer by appearing during the trial of a case punctually and in proper attire. A lawyers language should be forceful but dignified, emphatic but respectful as befitting
10
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
to
disciplinary
Three Ways in which the Forum Shopping is Committed: 1. Going from one court to another in the hope of securing a favorable relief in one court, which another court has denied. 2. Filing repetitious suits or proceedings in different courts concerning the same subject matter after one court has decided the suit with finality. 3. Filing a similar case in a judicial court after receiving an unfavorable judgment from an administrative tribunal. TESTS TO DETERMINE CONFLICTING INTERESTS: 1. Will the attorney be required to contest for that which his duty to another client requires him to oppose? (Conflicting duties) 2. Will the acceptance of a new relation invite suspicion and/or actually lead to unfaithfulness or double-dealing towards another client? (Invitation of suspicion) 3. Will the attorney be called upon in his new relation to use against his first client any knowledge acquired in the previous employment? (Use of prior knowledge obtained)
It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of facts. Within the meaning of this Canon, a lawyer represents a conflicting interests when, in behalf of one client it is his duty to contend for that which duty to another client requires him to oppose.
Q: Atty. X is As lawyer in a falsification case filed against the latter. While undergoing trial in the said criminal case, PNB foreclosed the 2hectare riceland belonging to A. The land was sold at public auction to Atty. X as the highest bidder. Did Atty. X violate the provision under the Civil Code regarding purchase of property under litigation? A: NO. In the absence of the requisites under Art. 1491 of the Civil Code, the prohibition will not operate. In this case, the riceland was not the subject matter of litigation. Q: Atty. X appeared as counsel for plaintiff in a damage suit. Judgment was rendered in favor of the plaintiff, and to satisfy the award, a parcel of land was levied upon which was sold at
It is the duty of a lawyer at the time of retainer to disclose to the client all circumstances of his relations to the parties and any interest in connection with the controversy,
11
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
auction sale. Plaintiff assigned one-half of his interest to Atty. X in accordance with their contingent contract of attorneys fees. Is the assignment a violation of Art. 1491 of the Civil Code and Canon 12 prohibiting the purchase by lawyer of property under litigation? A: NO. The lot was not the subject matter of the litigation. It was acquired by the client in the execution sale. (Guevarra vs. Calalang 117 SCRA)
OF
ATTORNEYS
1. Ordinary- it is the reasonable compensation paid to the lawyer for the legal services he had rendered the client. The basis of this compensation is the fact of employment by the client. 2. Extraordinary- an indemnity for damages ordered by the court to be paid by the losing party to the prevailing party in a litigation. The basis of this is any of the cases authorized by law and is payable not to the lawyer but to the client unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof.
Attorney-Client Relationship
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
Q: time?
A: YES. A client may dismiss his lawyer at any time with or without cause because the relationship is one of trust and confidence. Q: May a lawyer withdraw as counsel at any time? A: NO. A lawyer may withdraw as counsel only with the consent of the client and with leave of court, and only for good cause enumerated in Rule 22.01 of the Code of Professional Responsibility. The relation of attorney-client relationship is strictly personal and highly confidential and fiduciary. Necessity and public interest require that it be so. A lawyer cannot decline to represent a person for the SOLE reason of the latters 1. race 2. sex 3. creed 4. status in life 5. lawyers opinion that the said person is guilty of the charge (Legarda vs. CA 195 SCRA 418) Q: Should a lawyer accept a losing case: (1) in a criminal case; (2) in a civil case. Explain. A: (1) YES. A lawyer may accept a losing criminal case because every accused is presumed innocent and is entitled to counsel. (2) YES. A lawyer may likewise accept a losing civil case provided that in so doing, he must not engage in dilatory tactics and must advise his client about the prospects and advantage of settling the case thru a compromise.
Situations when Counsel cannot Recover the Full Amount, Despite Written Contract for Attorneys fees:
1. When the services called for were not performed as when the lawyer withdrew before the case was finished. He will be allowed only reasonable fees 2. When there is a justified dismissal of the attorney, the contract will be nullified and payment will be on the basis of quantum meruit only. A contrary stipulation will be invalid. 3. When the stipulated attorneys fees are unconscionable i.e., when it is disproportionate as compared to the value of services rendered and is revolting to human conscience. 4. When the stipulated attorneys fees are in excess of what is expressly provided by law. 5. When the lawyer is guilty of fraud or bad faith toward his client in the matter of his employment 6. When the counsels services are worthless because of h is negligence. 7. When contract is illegal, against morals or public policy. 8. Serving adverse interest unless lawyer proves that it was with the consent of both parties.
Retainer or Employment
RETAINER may refer to either of two concepts. 1. It may refer to the act of a client by which he engages the services of an attorney to render legal advice or; 2. To defend or prosecute his cause in court.
13
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
The fees re paid whether or not there are cases referred to he lawyer. 2. Special retainer fee for a specific case or service rendered by the lawyer for the client. QUANTUM MERUIT - literally means as much as he is merited. In determining attorneys fees, it means that the attorney will be paid for his services as much as he deserves, when the services are prematurely terminated by the act of either of the parties, by reason of death disability or operation of law considering the importance of the subject matter of the controversy, the extent of the services rendered, and the professional standing of a lawyer.
latter agrees to pay the former a portion of the thing or property recovered as compensation. It is void for being against public policy. CONTINGENT CONTRACT 1. Contingent fee is payable in cash 2. Lawyers do not undertake to pay all expenses of litigation 3. Not prohibited CHAMPERTOUS CONTRACT 1. Payable in kind ONLY 2.Lawyers undertake to pay all expenses of litigation 3. Void
When is a fee considered reasonable? There is no hard and fast rule which could be utilized to determine the reasonableness of attorneys fees, it must be determined from the facts of each case. When is a fee unconscionable? The amount contracted for must be such that no man in his right senses would offer on the one hand and no honest and fair man would accept on the other.
A lawyer should avoid the filing of any case against client for enforcement of attorneys fees EXCEPT:
1. to prevent imposition 2. to prevent injustice 3. to prevent fraud
Instances when a lawyer may divide a fee for legal services with persons not licensed to practice law:
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 legal business of a deceased lawyer; 3. where a lawyer or law firm includes nonlawyer employees in retirement plan, even if the plan is based in whole or in part on the profit sharing agreement
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
be unconscionable, the lawyer may recover for any services rendered based on quantum meruit.
2. IMPLIED: where party with knowledge of fact that a lawyer has been representing him in a case, accepts benefits of representation or fails to promptly repudiate the assumed authority.
Q: State the rule with respect to the authority of an attorney to compromise his clients case. A: The attorney, as a general rule, has no authority to compromise his clients case. This is so because the client, even if represented by counsel, retains exclusive control over the subject matter of the litigation. The client can, of course, authorize his lawyer to compromise his case, and the settlement made by the lawyer will bind his client. An exception to the rule is the case where the lawyer is confronted with an emergency and prompt, urgent action is necessary to protect the interest of his client and there is no opportunity for consultation with him.
PRIVILEGE COMMUNICATION
REQUISITES: 1. There exists an attorney and client relationship or a kind of consultancy relationship with a prospective client. That is, legal advise is what is sought; 2. The communication was made by the client to the lawyer in the course of the lawyers professional employment; and 3. The communication must be intended to be confidential. (Uy Chico vs. Union Life Association Society, 29 Phil 163)
Presumption of Authority
An attorney is presumed to be properly authorized to represent any cause in which he appears in all stages of the litigation and no written authority is required to authorize him to appear. The presumption is a strong one. A mere denial by a party that he has authorized an attorney to appear for him, in the absence of compelling reason, is insufficient to overcome the presumption especially when the denial comes after the rendition of an adverse judgment.
ON
1. To encourage a client to make a full disclosure of the facts of the case to his counsel without fear; 2. To allow the lawyer freedom to obtain full information from his client.
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
2. The client must intend the above communication be confidential. 3. A-C privilege embraces all forms of communication and action. 4. As general rule, A-C privilege also extends to the attorneys secretary, stenographer, clerk or agent with reference to any fact required in such capacity. 5. The above duty is perpetual and is absolutely privileged from disclosure.
As officers of the court, counsels are under obligation to advise their clients against making untenable and inconsistent claims. The counsel should inform his client and dissuade him from filing the case if totally devoid of merit. If he finds that his clients cause as fairly meritorious and ripe for judicial adjudication, he should refrain from making bold and confident assurances of success.
A lawyer should endeavor to seek instruction from his client on any substantial matter concerning the litigation, which may require decision on the part of the client, such as whether to compromise the case or to appeal an unfavorable judgment. He should give his client sound advice on any such and similar matters and comply with the clients lawful instructions relative thereto. He should resist and should never follow any unlawful instruction of his client.
client
from
A lawyer should use his best efforts to restrain and to prevent his client from doing those things which he himself ought not to do, particularly with reference to the conduct toward the court, judicial officer, witness and suitor and if the client persists in such wrong doing, the lawyer should terminate their relation.
He must promptly call upon the client to: 1. Rectify the same and failing which 2. He shall terminate their relationship with such client in accordance with the Rules of Court.
The attorneys duty to safeguard the clients interests commences from his retainer until his effective release from the case or the final disposition of the whole subject matter of the litigation. During that period he is expected to take such reasonable steps and such ordinary care as his clients interests may require.
Preparation of pleadings
It is the duty of a lawyer to disclose and explain to a prospective client all circumstances of his relations to the parties and any interest in or connection with the controversy, which in his honest judgment might influence the client in the selection of counsel. The disclosure is more for
16
A lawyer should prepare his pleading with great care and circumspection. He should refrain from using abrasive and offensive language, for it merely weakens rather than strengthens the force of legal reasoning and detracts from its persuasiveness. In preparing a complaint for damages, counsel for plaintiff should allege and state the specific amounts
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
claimed not only in the body of the complaint but also in the prayer, so that the proper docket fees can be assessed and paid.
Interviewing witnesses
A lawyer may interview a witness in advance of trial to guide him in the management of the litigation. A lawyer may also interview a prospective witness for the opposing side in any civil or criminal action without the consent of the opposing counsel or party. A lawyer may properly obtain statements from witnesses whose names were furnished by the opposing counsel or interview the employees of the opposing party even though they are under subpoena to appear as witnesses for the opposite side.
Exceptions to the rule that notice to counsel is notice to client: 1. If strict application might foster dangerous collusion to the detriment of justice. 2. Service of notice upon party instead of upon his attorney is ordered by court. 3. Notice of pre trial is required to be served upon parties and their respective lawyers. 4. In appeal from the lower court to the RTC, upon docketing of appeal.
Duty to keep client fully informed He should notify his client of an adverse decision while within the period to appeal to enable his client to decide whether to seek an appellate review. He should communicate with him concerning the withdrawal of appeal with all its adverse consequences. The client is entitled to the fullest disclosure of the mode or manner by which his interest is defended or why certain steps are taken or omitted.
Mistakes or negligence of lawyer binding upon client Client is bound by attorneys conduct, negligence and mistake in handling case or in management of litigation and in procedural technique, and he can not be heard to complain that result might have been different and his lawyer proceeded differently.
Duty when the accused intends to plead guilty A PLEA OF GUILTY is an admission by the accused of his guilt of crime as charged in the information and of the truth of the facts alleged, including the qualifying and aggravating circumstances. It is the duty of the defense counsel when his client desires to enter a plea of guilty to: 1. Fully acquaint himself with the records and surrounding circumstances of the case 2. Confer with the accused and obtain from him his account of what had happened 3. Advise him of his constitutional rights 4. Thoroughly explain to him the import of a guilty plea and the inevitable conviction that will follow 5. See to it that the prescribed procedure which experience has shown to be necessary to the administration of justice is strictly followed and disclosed in the court records. Doctrine of Imputed Knowledge - is based on the assumption that an attorney, who has notice of matter affecting his client, has communicated the same to his principal in the course of professional dealings. The doctrine applies regardless of whether or not the lawyer actually communicated to the client what he learned in his professional capacity, the attorney and his client being one judicial person.
17
Exceptions to rule that client bound by lawyers mistake or negligence 1. Where adherence thereto results in outright deprivation of clients liberty or property or where interest of justice so requires. 2. Where error by counsel is purely technical which does not affect substantially clients cause. 3. Ignorance, incompetence or inexperience of lawyer is so great and error so serious that client, who has good cause prejudiced and denied a day in court. 4. Gross negligence of lawyer. 5. Lack of acquaintance with technical part of procedure. Right to decline employment; exceptions
General Rule: A lawyer is not obliged to act as legal counsel for any person who may wish to become his client. He has the right to decline employment. Exceptions: 1. A lawyer shall not refuse his services to the needy. 2. He shall not decline to represent a person solely on account of the latters race, sex, creed or status of life or because of his own opinion regarding the guilt of said person. 3. He shall not decline, except for serious and sufficient cause like (1) if he is not in a position to carry out effectively or competently; (2) if he labors under a conflict of interest between him and the prospective client or between a present and prospective client.
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
A lawyer should decline professional employment even though how attractive the fee offered may be if its acceptance will involve: 1. A violation of any of the rules of the legal profession 2. If it will nullify a contract which he prepared. 3. He should not accept employment as an advocate in any matter in which he had intervened while in the government service. 4. He should not accept employment the nature of which might easily be used as a means of advertising his professional services or his skill. 5. He should not accept employment from a collection agencywhich solicits business to collect its claims. 6. He should not accept employment in any matter in which he knows or has reason to believe that he or his partner will be an essential witness for the prospective client.
him out of the judgment for the payment of money and executions issued in pursuance thereof in the particular suit.
REQUISITES: 1. Existence of a client-lawyer relationship; 2. The attorney has rendered services; 3. Favorable judgment secured by the counsel for his client which judgment is a money judgment; 4. The attorney has a claim for attorneys fees or advances 5. Noting into the records of the case through the filing of an appropriate motion of the statement of the lawyers claim for attorneys fee with copies furnished to the client and adverse party. Comparative Distinctions Retaining Lien and Charging Lien Point of Distinction 1. Nature Retaining Lien Passive Lien. It cannot be actively enforced. It is a general lien. Lawful possession of papers, documents, property belonging to the client. Covers papers, documents, and properties in the lawful possession of the attorney by reason of his professional employment. As soon as the attorney gets possession of the papers, documents, or property. Client need not be notified to make it effective. May be Charging Lien Active Lien. It can be enforced by execution. It is a special lien. Securing of a favorable money judgment for the client. Covers all judgment for the payment of money and execution issued in pursuance of such judgments.
2. Basis
3. Coverage
4. Effect
ATTORNEYS LIEN CHARGING LIEN-is an equitable right to have the fees and lawful disbursements due a lawyer for his services in a suit secured to
18
5. Notice
6.
Applica-
As soon as the claim for attorneys fees had been entered into the records of the case. Client need not be notified to make it effective. Generally, it
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
bility
7. Extinguishment
When possession lawfully ends when as lawyer voluntarily parts with funds, documents, and papers of client or offers them as evidence.
is exercisable only when the attorney had already secured a favorable judgment for his client. When client loses action as lien may only be enforced against judgment awarded in favor of client, proceeds thereof/ executed thereon.
Q: Atty. A failed to file a brief for his client. Atty. X contends that his non-filing of the brief was due to volume and pressure of legal work. Is this contention valid? A: NO. A lawyer engaged to represent a client in a case bears the responsibility of protecting the latters interest with utmost diligence. The volume and pressure of legal work provide no excuse for Atty. Xs inability to exercise due diligence in the performance of his duty. Canon 1,Rule 1.03 provides A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. (Santiago vs. Fojas) Q: S, a candidate to the bar , was charged with homicide in connection with the death of Y(due to hazing) X pleaded guilty to a lesser offense, was convicted and placed on probation. After passing the bar examination can he be allowed to take the lawyers oath, sign the Roll of Attorneys and practice of law On the basis of various certifications showing that he is a devout Catholic with a genuine concern for civic duties and public service? A: YES. After a very careful evaluation of the case, the Supreme Court allowed petitioner to take the lawyers oath, sign the Roll of Attorneys and practice the legal profession with the following admonition : In allowing petitioner to take the lawyers oath, the Court recognizes that he is not inherently of bad moral fiber. On the contrary, the various certifications show that he is a devout Catholic with a genuine concern for civic duties and public service. This Court is persuaded the he has exerted all efforts to atone for the death of Raul Camaligan. This Court gives him the benefit of the doubt, taking judicial notice of the general tendency of youth to be rash, temerarious and uncalculating. ( In Re: Al Argosino, 270 Scra 26 ) Q: Atty. X filed with the CA a plea for injunctive relief and also a motion for the issuance of a writ of preliminary injunction with the QC RTC when the SC had already with finality on the same matter. Were the acts of Atty. X ethical? A: NO. Atty. X is guilty of forum shopping. The Court has warned counsel of litigants not to abuse court processes. Lawyers should not resort to forum shopping for this practice clogs the court dockets. Willful and deliberate forum shopping has been made punishable either as direct or indirect contempt of court. (Sanchez vs. Brion)
Just cause is material only in determining compensation. a. if without just cause, full payment of compensation agreed to in writing. b. If no written agreement, quantum meruit. Client cannot discharge counsel as an excuse to secure repeated extensions of time. Notice of discharge required in so far as court and adverse party are concerned.
Q: A lawyer who is an employee of PNB participated in its transaction with client X. After he retired from the bank he was asked to represent client X in a suit involving the latter and the bank. Can the lawyer legally represent X? A: The lawyer cannot, he will violate Rule 6.03, Canon 6 of the CPR which states that A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service. It is unprofessional to represent conflicting interest. A lawyer represents conflicting interest when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.(PNB v. Cedo)
19
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
Q: Atty. X is a retained counsel of V corporation. After the A-C relationship was severed. Atty. X was consulted by the employees of V corporation and agreed to handle their labor case against corporation V. Can Atty. X handle the case? A: NO. An Atty. owes loyalty to his client not only in the case in which he has represented him but also after the relation of A-C has terminated as it is not a good practice to permit him afterwards to defend in another case other person against his former client under the pretext that the case is distinct from, and take advantage of the secrets of client obtained while confidential relation of atty. and client exist (Rosacia vs. Bulalacao)
Remedy of Client
Recover property from lawyer together with its fruits, subject to clients returning to his lawyer purchase price & legal interest.
Test of relevancy:
The matter to which the privilege does not extend must be palpably wanting in relation to subject of controversy. That no reasonable man can doubt its relevancy or propriety.
Limitation:
Pleadings should contain plain & concise statements of material facts & if pleader goes beyond requisites of law & alleges irrelevant matter which is libelous, he loses his privilege and may be liable in separate suit.
Kinds of damages
1. Nominal where client lost the litigation as a consequence of lawyers gross omission or negligence. 2. Actual/compensatory 3. Moral Damages 4. Attorneys fees for nos. 2-4 there should be showing that had lawyer exercised due diligence client would have succeeded in recovering from adverse party
General Rule: Losing client and not the lawyer is liable for costs of suit in favor of prevailing party, lawyer not being party litigant. Exception: Where the lawyer insisted on clients patently unmeritorious case or interposed appeal to delay litigation or thwart prompt satisfaction of prevailing partys just & valid claim, court may adjudge lawyer to pay treble costs of suit.
breach
of
fiduciary
General Rule: Lawyer holds his clients funds or property in trust for clients and is obliged to make an accounting of such funds that come to his possession.
Criminal Liability
Prejudicing client or revealing his secrets Acts Penalized 1. Causing prejudice to client thru malicious breach of professional duty or thru inexcusable negligence or ignorance. 2. Prejudice which would not have been caused to client had his lawyer not maliciously breached his professional duty or had the lawyer not been inexcusably negligent or ignorant 3. Revealing clients secrets learned in lawyers professional capacity thru malicious breach of professional duty or inexcusable negligence or ignorance. The secrets cover only those privileged confidences and not those which are exceptions thereto.
20
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
Liability in interests
Representing
adverse
The lawyer who has undertaken the defense of client or has received confidential information from said client in a case may be criminally liable for undertaking defense of opposing party in same cause without consent of 1st client.
CONTEMPT OF COURT
It is exercised on preservative & not on vindictive principle & on corrective rather than retaliatory idea of punishment, for purposes that are impersonal (criminal in nature). It is essential in the observance of order in judicial proceedings & enforcement of judgment.
and hypothecations of ships, vessels, or boats, charter parties or affreightments, letters of attorney, deeds, mortgages, transfers and assignments of land or buildings, or an interest therein, and such other writings as are commonly proved or acknowledged before notaries; 3. To act as a magistrate in the writing of affidavits or depositions; and 4. To make declarations and certify to the truth thereof under his seal of office, concerning all matters done by him by virtue of his office (Sec. 241, Notarial Law) The duties of a notary public are the following: 1. To keep a notarial register; 2. To make the proper entry or entries in his notarial register touching his notarial acts in the manner required by the law; 3. To send the copy of the entries to the proper clerk of court within the first 10 days of the month next following; 4. To affix to acknowledgments the date of expiration of his commission, as required by law; 5. To forward his notarial register, when filled, to the proper clerk of court; 6. To make report, within a reasonable time, to the proper judge concerning the performance of his duties, as may be required by such judge; 7. To make the proper notation regarding residence certificates. (Sec. 247, Rev. Adm. Code) Q: What is the extent of the jurisdiction of a notary public? A: The jurisdiction of a notary public in a province shall be co-extensive with the province. The jurisdiction of a notary public in the City of Manila shall be co-extensive with said city. No notary shall, possess, authority to do any notarial act beyond the limits of his jurisdiction. (Sec. 240, Rev. Adm. Code) Q: Who commission? can revoke his notarial
Q: What are the powers and duties of a notary public? A: Every notary public shall have the power: 1. To administer all oaths and affirmations provided by law in all matters incident to his notarial office, and in the execution of affidavits, depositions, and other documents requiring an oath; 2. To receive proof or acknowledgment of all writings relating to commerce or navigation, such as bills of exchange, bottomries, mortgages,
21
A: The notarial commission may be revoked by the Executive Judge of the Regional Trial Court who issued the commission or by the Supreme Court itself.
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
not interrupt in their arguments except to clarify his mind as to their positions. He must not be tempted to unnecessary display of learning or premature judgment and he criticize & correct conduct of a lawyer but not in insulting manner.
To litigants / witness
He must be considerate, courteous, and civil but he must not utter intemperate language during hearing of case.
Conduct self as to be beyond reproach & suspicion and be free from appearance of impropriety in their personal behavior not only in discharge of official duties but also in their everyday life.
Not only to render just, correct & impartial decision but do so in manner free from suspicion as to its fairness & impartiality & as to his integrity. It is indispensable requisite of due process.
QUALIFICATIONS JUSTICES
1. 2. 3. 4.
OF
SC
AND
CA
Natural-born citizen of the Philippines; At least 40 years of age; Must have been for 15 years or more a judge of a lower court or engaged in the practice of law; Must be a person of proven competence, integrity, probity and independence.
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
number of cases not decided within the reglementary period and other factors to wit: the presence of aggravating circumstances the damage suffered by the parties as a result of the delay, the health and age of the judge, etc. CANON 2 A judge should avoid impropriety and the appearance of impropriety in all activities. In Manuel vs. Judge Demetrio Calimay, Jr. (A.M. NO. RTJ-99-1441, May 28, 1999) it was held that the charges proferred in the instant case do not directly refer to respondent judges official functions does not mean he is totally free from blame. Canon 2 of the Code of Judicial Conduct provides that a judge should not only avoid impropriety but also the appearance of impropriety in all his activities. He should behave at all times as to promote public confidence in the integrity and impartiality of the judiciary. He should be extra careful in all his dealings both in his professional and individual capacities in order to promote and protect the image of the judiciary to which he is privileged to belong. In Prosecutor Leo Tabao vs. Judge Pedro Espina (A.M. NO. RTJ-96-1347, June 29, 1999) it was held that apropos the issue on the hasty rendition of judgment in a criminal case, the Supreme Court has reminded members of the bench time and again that as exemplars of justice and law, judges must avoid not only impropriety but even the appearance of impropriety in all their actions neither should they take undue interest in the settlement of criminal cases as the same may compromise the integrity and impartiality of their office. Q: Judge X conducted preliminary investigations in a case where the complaining witness is the judges nephew. Is the judges act ethical? A: NO. Judge X should have refrained from handling the preliminary investigation since he was closely related to the complainant. A judge should not handle a case in which he might be perceived to be susceptible to bias and partiality. He should avoid not merely impropriety in all his acts but even the appearance of impropriety. (Perez vs. Judge Suller) Q: Judge X failed to act on a motion to dismiss a case. He contends that the delay was brought about by the failure of his staff to present to him the ex-parte motion to resolve. Is the contention of Judge X valid? A: NO. A judge cannot take refuge behind the inefficiency or mismanagement by court personnel. Proper and efficient court
23
management is as much as his responsibility. It is also his duty to organize and supervise the court personnel to ensure the prompt and efficient dispatch of dispatch of business. Rule 2.01 A judge should so behave at all times as to promote public confidence in the integrity of the judiciary CANON 3. A judge should perform official duties honestly and with impartiality and diligence Rule 3.01 --A judge shall be faithful to the law and maintain professional competence. In the case Exequiel Domingo vs. Judge Luis Reyes (A.M. NO. MTJ-98-1165, June 21, 1999) the Supreme Court held that judges are expected to keep abreast of developments in law and jurisprudence. The SC does not countenance respondent judges failure to inform himself of recent jurisprudential rules. His error, while an honest one and committed for the purpose of achieving the ends of justice, must never happen again. Respondent judge was reprimanded for IGNORANCE OF THE LAW. Rule 3.03 Where a partner accepts public office, he shall withdraw from the firm and his name shall be dropped from the firm name unless the law allows him to practice concurrently. Rule 3.07 A judge should abstain from making public comments on any pending or impending case and should require similar restraint on the part of court personnel period. Rule 3.10 A judge should take or initiate appropriate disciplinary measures against lawyers or court personnel for unprofessional conduct of which the judge may have become aware Rule 3.12- Disqualification of judge from hearing a case A judge should take no part in a proceeding where the judges impartiality might be reasonably questioned. These cases include among others, proceeding where: a. the judge has personal knowledge of disputed evidentiary facts concerning the proceeding; b. the judge served as executor, administrator, guardian, trustees or lawyer in the case or matters in controversy, or a former associate of the judge as counsel during their association, or the judge or lawyer was a material witness therein; c. the judges ruling in a lower court is the subject of review;
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
d. the judge is related by consanguinity or affinity to party litigant within the sixth degree or to counsel within the fourth degree; e. the judge knows that the judges spouse or child has a financial interest, as heirs, legatee, auditor, fiduciary, or otherwise, in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding. In every instance the judge should indicate the legal reason for inhibition.
2. Rules leaves the matter of inhibition to the sound discretion of the judge
GROUNDS FOR ADMINISTRATIVE SANCTIONS AGAINST JUDGES: (Section 1, Rule 140, Revised Rules of Court)
1. Serious Misconduct 2. Inefficiency MISCONDUCT- implies malice or a wrongful intent, not a mere error of judgment. For serious misconduct to exist, there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law or were in persistent disregard of well-known legal rules. INEFFICIENCYimplies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence and circumspection which the law requires in the rendition of any public service. In Re: Leaves Of Absence Without Approval Of Judge Eric Calderon ( A.M. 98-8105 MTC, January 26, 1999) - Judge Calderon was found guilty of gross misconduct, abandonment of office and was dismissed due to his frequent leave of absence totaling to 3 years which were not approved and his explanations were inexcusable. He has caused great disservice to many litigants and has denied them speedy justice. In the case of In Re: Judge Danilo Tenerife (255 SCRA 184)-The failure of a judge to decide even a single case within the 90-day period was considered gross inefficiency warranting the imposition of fine equivalent to his one months salary.
INHIBITION 1.Rule does not expressly enumerate the specific grounds for inhibition but merely gives a broad basis thereof, i.e. good, sound or ethical grounds
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
Q: A judge figured in a vehicular accident alighted from his car and boxed X. Is the judge guilty of any misconduct even not in the performance of his duties? A: YES. The judge is guilty of misconduct. His personal behavior, not only while in the performance of official duties but also outside the court, must be beyond reproach, for he is, as he is so aptly perceived to be, the visible personification of law and justice. (Marcelino vs. Judge Singson) Q: What is the effect of resignation or retirement of a judge when there is a pending administrative case against him? A: The retirement/resignation of a judge may or may not render the administrative complaint moot and academic. Each case will be determined according to its surrounding circumstances. According to Pesole vs. Rodriguez ( 81 SCRA 208) the acceptance by the President of the resignation does not necessarily render the case moot or deprive the SC of the authority to investigate the charges. The court retains its jurisdiction either to pronounce the respondent official innocent of the charges or declare him guilty thereof. A contrary rule will be fraught with injustice and pregnant with dreadful and dangerous implications. Q: Will an administrative case against a judge be dismissed by the withdrawal by or desistance of the complainant? A: NO. In the case of Anguluan vs. Taguba (93 SCRA 179), the withdrawal of the case by the complainant or the filing of an affidavit of desistance or the complainants loss of interest does not necessarily cause the dismissal thereof. REASON: to condition administrative sanctions upon the will of every complainant who for one reason or another, condones a detestable act is to strip the SC of its supervisory power to discipline erring members of the judiciary. Q: What is the nature of proceedings against judges? administrative
confidence on his integrity and impartiality. Ultimately, it is the administration of justice that suffers. CANON 4. A judge may, with due regard to official duties, engage in activities to improve the law, the legal system and the administration of justice. Rule 4.01 - A judge may, to the extent that the following activities do not impair the performance of judicial duties or cast doubt on the judges impartiality. a. speak, write, lecture, teach or participate in activities concerning the law, the legal system and the administration of justice; b. appear at public hearing before a legislative or executive body on matters concerning the law, the legal system or the administration of justice and otherwise consult with them on matter concerning the administration of justice; c. serve on any organization devoted to the improvement of the law, the legal system or the administration of justice. CANON 5. A judge should regulate extrajudicial activities so as to minimize the risk of conflict with judicial duties. Rule 5.01- A judge may engage in the following activities provided that they do not interfere with the performance of judicial duties or detract from the dignity of the court; a. write, lecture, teach and speak on nonlegal subject b. engage in the arts, sports and other special recreational activities c. participate in civic and charitable activities d. serve as an officer, director, trustee, or non-legal advisor of a non-profit or nonpolitical, educational, religious, charitable, and fraternal or civic organization. Rule 5.02 - A judge shall refrain from financial and business dealings 1. 2. 3. that tend to reflect adversely on the courts impartiality that interfere with the proper performance of judicial activities that increase involvement with lawyers or persons likely to come before the court
A: Just like disbarment proceedings against attorneys, proceedings against judges are private and confidential until the final determination thereof (Sec. 6, Rule 140 of the Rules of Court). This is to protect their reputation, or it is possible that the cause or charges may be unfounded and malicious. Once the reputation of the judge is impaired or stained, the people will lose their trust and
25
A judge should so manage investments and other financial interests as to minimize the number of cases giving grounds for disqualification.
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
Rule 5.03 - subject to the provisions of the preceding rule, a judge may hold and manage investments but should not serve as an officer, director, manager, advisor, or employee of any business except as director of a family business of the judge. Rule 5.04- a judge or any immediate member of the family shall not accept a gift, bequest, favor or loan from anyone except as may be allowed by law. This prohibition under Rule 5.04 extends to the immediate members of the judges family.
The prohibition will discourage if not stop judges from making business speculations in some business ventures, the secrets of which he learned by reason of his position as a judge.
The judge may be liable for violation of Section 3(k) of RA 3019 divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons or releasing such information in advance of its authorized release due.
Violation of the rule may also lead to revelation of secrets by an officer or to revelation of the secrets of a private individual punishable by Articles 229 and 230 of the Revised Penal Code respectively. Rule 5.06 - The general rule is, the judge shall not serve as (a) executor, (b)administrator, (c) trustee, (d) guardian, (e) fiduciary. Exception : when the estate, trust, ward or person for whom he will act as executor, administrator, trustee, guardian or fiduciary is a member of the immediate family- which is limited to the spouse and relatives within the second degree of consanguinity provided that the judges services as fiduciary shall not interfere with the performance of his judicial functions. A judge SHALL NOT: a. serve in proceeding that might come before the court of said judge b. act as such contrary to Rules 5.02 to 5.05. NOTE: the relationship mentioned consanguinity and not by affinity. is by
Rule 5.07 - A judge shall not engage in the private practice of law. Unless prohibited by the constitution or law, a judge may engage in the practice of any other profession provided that
26
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
such practice will not conflict or tend to conflict with judicial functions.
Section 35 of Rule 138 of Rules of Court prohibits judges, officials or employees of superior courts xxx from engaging in private practice as members of the bar and in giving professional advice to clients.
liability criminal, civil, administrative for any of his official acts, no matter how erroneous, so long as he acts in good faith. The remedy of aggrieved party not to file administrative complaint against the judge but to elevate error to higher court for review and correction When may judge be liable? Civil, criminal and administrative liability 1. Malfeasance 2. Misfeasance 3. Knowingly rendering unjust judgment 4. Malicious delay in administration of justice 5. Giving private party unwarranted benefit in exercise of judicial function
The reason for the prohibition has been explained in Dia-Anonuevo vs. Bercacio (68 SCRA 81). The Supreme Court held that the rule disqualifying a municipal judge from engaging in the practice of law seeks to avoid the evil of possible use of the power and influence of his office to affect the outcome of a litigation where he is retained as counsel. Compelling reasons of public policy lie behind this prohibition, and judges are expected to conduct themselves in such a manner as to preclude any suspicion that they are representing the interests of party litigant.
In De Castro vs. Capulong (118 SCRA 52) a judge who merely acted as a witness to a document and who explained to the party waiving his right of redemption over the mortgaged properties and the consequences thereof does not engage himself in the practice of law. Rule 5.09 - A judge shall not accept appointment or designation to any agency performing quasi-judicial or administrative sanctions.
The responsibility for damages is not however demandable of judges except when the act or omission of the judge constitutes a violation of the Penal Code or other penal statute. (Art. 32, last par.)
The prohibition is based on Section 12, Art. VIII of the Constitution which provides: The members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasijudicial or administrative functions.
A judge who willfully or negligently renders a decision causing damages to another, shall indemnify the latter for the same.
The appointment to such positions will likely interfere with the performance of the judicial functions of a judge hence, the prohibition. Rule 5.10 - A judge is entitled to entertain personal views on political questions. But to avoid suspicion of political partisanship, a judge shall not make political speeches, contribute to party funds, publicly endorse candidates for political office or participate in other partisan political activities. All judges shall strictly comply with this Code
A judge is also civilly liable for damages, if in refusing or neglecting to decide a case without just cause, a person suffered material or moral loss without prejudice to any administrative action that may be taken against him . (Art. 27, Civil Code)
Liability of judges
In the absence of fraud, dishonesty or corruption, acts of judge in his judicial capacity not subject to discharge action even though such acts are erroneous. He cant be subject to
27
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions, this prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession. xxx
which cannot be explained by reasonable interpretation. (In Re; Climaco, 55 SCRA 107). 3. Knowingly Rendering an Unjust Interlocutory Order Any judge who shall knowingly render an unjust interlocutory order or decree shall suffer the penalty of arresto mayor in its minimum period and suspension; but if he shall have acted by reason of inexcusable negligence or ignorance and the interlocutory order or decree be manifestly unjust, the penalty shall be suspension. (Art. 206, Revised Penal Code) INTERLOCUTORY ORDER an order which is issued by the court between the commencement and the end of a suit or action and which decides some point or matter but which, however, is not a final decision of the matter in issue. 4. Maliciously Delaying the Administration of Justice The penalty of prision correccional in its minimum period shall be imposed upon any judge guilty of malicious delay in the administration of justice. To make the judge liable, the act must be committed maliciously with deliberate intent to prejudice a party in a case.
Donations made to a judge, his wife, descendants and ascendants by reason of his office are void under Art. 739 of Civil Code.
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
Reliable evidence showing that judicial actions are corrupt or inspired by intent to violate the law or in persistent disregard of legal rules. Q: Under the grievance procedure in Rule 139-B of the Rules of Court, may judges be investigated by the Integrated Bar of the Philippines? Explain. A: Justices and Judges may not be investigated under the grievance procedure in Rule 139-B, sec. 1 of the Revised Rules of Court. Complaints against justices and judges are filed with the Supreme Court which has administrative supervision over all courts. As a matter of practice, the Supreme Court has assigned complaints against Municipal or Metropolitan Trial Judges to an Executive Judge of a Regional Trial Court and complaints against judges of Regional Trial Courts to a justice of the Court of Appeals, while a complaint against a member of the Court of Appeals would probably be assigned to a member of the Supreme Court for investigation, report and recommendation. Reinstatement of Judge Previously Discipline No indication that hes inspired by corrupt motives or reprehensive purpose to set the guilty free.
1. admonish 2. reprimand 3. suspend and 4. disbar a lawyer (Section 27, Rules 138, Rules of Court) 2. The Court of Appeals and the Regional Trial Courts are also empowered to a. Warn b. Admonish c. reprimand and d. suspend an attorney who appears before them from the practice of law for any of the causes mentioned in Section 27, Rule 138 (Section 16, Rule 139-B). But they cannot disbar a lawyer.
Factors to be considered
1. Unsullied name & service of record prior to dismissal 2. Commitment to avoid situation that spur suspicion of arbitrary conditions. 3. Complainant mellowed down in pushing from his removal 4. length of time separated from service
The inferior courts (MTCs) are not empowered even just to suspend an attorney, although they may cite or hold a lawyer in contempt of court for contemptuous acts.
Justices and judges, who are also lawyers, if found guilty of certain crimes and / or of the causes for disbarment under the Rules of Court may also be disbarred.
Justices of the Supreme Court however may not be disbarred unless and until they shall have been first impeached in accordance with the Constitution. The same is true with the other impeachable officers who are members of the bar.
What are the different FORMS OF DISCIPLINARY MEASURES for erring members of the Bar? (WARS CD)
1. Warning An act or fact of putting one on his guard against an impending danger, evil consequences or penalties. 2. Admonition a gentle or friendly reproof, mild rebuke, warning or reminder, counseling, on a fault, error or oversight, an expression of authoritative advice.
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
3. Reprimand a public and formal censure or severe reproof, administered to a person in fault by his superior officer or a body to which he belongs. 4. Suspension temporary withholding of a lawyers right to practice his profession as a lawyer for a certain period or for an indefinite period of time. a. Definite b. Indefinite- qualified disbarment; Leaves to lawyer to determine for himself for how long or how short his suspension shall last by proving to court that hes once again fit to resume practice of law. 5. Censure - Official reprimand. 6. Disbarment - It is the act of the Philippine Supreme Court in withdrawing from an attorney the right to practice law. The name of the lawyer is stricken out from the roll of attorneys.
1. Neither civil nor criminal proceeding; 2. The defense of double jeopardy is not available; 3. It can be initiated motu proprio by the SC or the IBP. It can be initiated without a complaint; 4. It can proceed regardless of interest of the complainants; 5. It is imprescriptible; 6. Conducted confidentially until its final determination 7. It is itself due process of law.
CHARACTERISTICS PROCEEDINGS
30
OF
DISBARMENT
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
the prejudice and damage of the party imposed upon. There must be false representation as to matter of fact. Cases of Deceit a. Misappropriation of clients fund (Capulong vs. Alino, 22 SCRA 491) b. Falsification of grades in the Bar Examination (In Re: Del Rosario (52 SCRA 399) c. Maneuvering reconveyance of property in the name of the lawyer instead of the client in a case involving sale with pacto de retro (Imbuido vs. Fidel Mangonan 4 SCRA 760) MALPRACTICE refers to any malfeasance or dereliction of duty committed by a lawyer LEGAL MALPRACTICE consists of failure of an attorney to use such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of tasks which they undertake, and when such failure proximately causes damage, it gives rise to an action in tort. (Tan Tek Beng vs. David, 1126 SCRA 389) Cases of Malpractice: a. Failure of lawyer to appeal in allowing the period of appeal to lapse (Toquib vs. Tomol, Adm. Case No. 554, January 3, 1969) b. Preparation by a notary-public of a false affidavit (Vda. De Guerrero vs. Hernando, 68 SCRA 76) c. Abandonment of clients case (In Re: Yeager, 56 Phil 691) IMMORAL CONDUCT that conduct which is willful, flagrant or shameless and which shows a moral indifference to the opinion of the good and respectable members of the community. It is difficult to state with precision and to fix an inflexible standard at what is grossly immoral conduct or to specify the moral delinquency and obliquity which render a lawyer unworthy of continuing as a member of the bar. In the case of Arciga vs. Maniwang (106 SCRA 591), mere intimacy between a lawyer and a woman with no impediment to marry each other voluntarily cohabited and had two children, is neither so corrupt as to constitute a criminal act nor so unprincipled as to warrant disbarment or disciplinary action against the man as a member of the bar. MORAL TURPITUDE imports an act of baseness, vileness or depravity in the duties
31
which one person owes to another or to society in general, which is contrary to the usual accepted and customary rule of right and duty which a person should follow. Crimes Involving Moral Turpitude: estafa, bribery, murder, bigamy, seduction, abduction, concubinage, smuggling, falsification of public document, violation of B.P. 22 WILLFUL DISOBEDIENCE OF ANY LAWFUL ORDER OF SUPERIOR COURT The resistance or defiance to the order of the court must be willful. A lawyer who is directed to do something, such as surrender records, to appear as counsel de oficio, to comment on a matter pending with court, may be disciplined for willful disobedience of the order. (Santos vs. CA, 198 SCRA 806)
Misconduct and justifies disciplinary action against him; also contempt of court Examples a. Forum shopping b. Employment of dilatory tactics c. Instruct complainant not to appear at hearing so that case against accused may be dismissed d. Ask client whos detained to escape 2. Misleading court Knowingly making false allegation in pleadings, misquoting text of documents, suppressing material facts 3. Preferring false charges Filing or prosecuting false charges against another for his action is violative of duty to do falsehood nor consent to doing of any in court, nor wittingly or willingly promote or sue any false, groundless, unlawful suit.
Requisites
a. Charges are fake b. The lawyer knows them to be so 4.
It is a violation of oath to do falsehood nor consent to doing of any in court. When false testimony is material to inquiry or relevant to issue, it requires suspension or disbarment. On the other hand, when the testimony is immaterial or irrelevant and does not cause substantial prejudice, it only warrants lesser sanction, such as warning or reprimand 5. Willfully disobeying court orders Punished for contempt and disciplinary as officer of court. 6. Using vicious or disrespectful
language
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
By direct contempt; violation of oath & code; administratively liable for misconduct as officer of court and may order striking off from record of defamatory remarks. The lack of intention does not excuse him from liability. 7. Continue to practice after
A lawyer can bind client without special power of attorney only matters of proceedings.
suspension
Gross misconduct and willful disregard of suspension order.
business
of
For purpose of gain, personally or thru paid agents is MALPRACTICE (malfeasance or dereliction of duty com.). While agreeing with non-lawyer to divide lawyers fees paid by client or solicitation by non-lawyer.
4.
Advertising
clients
property
in
Requisites to constitute
a. Lawyer is counsel for client at time he acquired the same b. By himself or thru another c. During pendency of litigation
2. Gross immorality
Act of personal immorality on part of lawyer in his private relation with opposite sex may put character in doubt. But to justify suspension or disbarment, the act must not only be IMMORAL , it must be GROSSLY IMMORAL GROSSLY IMMORAL ACT one so corrupt and false as to constitute criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree. Cohabitation per se is not grossly immoral, it depends on circumstances and it is not necessary that there be prior conviction for offense before lawyer may be disciplined for gross immorality. If the evidence is not sufficient to hold the lawyer liable for gross immorality, he may still be reprimanded where evidence shows failure on his part to
or
Presupposes fraudulent intent of lawyer. Immediate repayment by lawyer of clients money or property after demand but before institution by client of disbarment proceedings negate fraudulent intent. If the lawyer has a lien, it cannot be used as an excuse for not making an accounting.
7.
Where the law fixes the maximum amount which lawyer may charge client, collection of more than what law allows constitutes malpractice.
8.
32
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
Proceedings for the disbarment, suspension and discipline of attorneys may be taken by the Supreme Court motu proprio or by the IBP upon the verified complaint of any person
IBP Board of Governors may motu proprio or upon referral by the SC or by a Chapter Board of Officers or at the instance of any person, can initiate and prosecute proper charges against erring attorneys including those in government.
The complaint shall state clearly and concisely the facts complained of and shall be supported by affidavits of persons having personal knowledge of the facts therein alleged and / or by such documents as may substantiate such facts.
Six copies of the verified complaint shall be filed with the Secretary of IBP or Secretary of any of its Chapters who shall forthwith commit the same to the IBP Board of Governors for assignment to an investigator.
Investigator shall investigate all complaints against members of IBP referred to them by IBP Board of Governors and shall submit a report to the IBP-BG
If the complaint is meritorious, the investigator shall direct a copy to be served upon the respondent who shall answer within 15 days from receipt of service.
If not meritorious, the same may be dismissed by them upon investigation or recommendation. A copy of the resolution shall be furnished to complainant.
Supreme Court may review the case motu proprio or on appeal by the complainant within 15 days from notice of dismissal of the complaint.
33
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
4. Copy of resolution of dismissal shall be furnished the complainant and the SC which may review case motu proprio or upon timely appeal of complainant filed w/in 15 days from notice of dismissal of complaint. 5. Answer shall be verified. 6. Original and 5 copies of answer filed with investigation with proof of services of copy thereof on complainant or his counsel. 7. Upon joinder of issues on failure or respondent to answer, investigation shall proceed w/ investigation of case. 8. Respondent shall be given full opportunity to defend himself, to present witnesses on his behalf and be heard by himself and by counsel 9. If upon reasonable notice, respondent fails to appear, investigation proceed ex parte. 10. Investigator terminate investigation within 3 months from date of commencement, unless extended for good cause by Board of Gov. upon prior application. 11. No investigation shall be interrupted or terminated by reason of desistance, settlement, compromise, restitution, withdrawal of charges or failure of complainant to prosecute same.
Q: Can RTC judge designated by SC to investigate administrative charge against MTC judge dismiss the case? A: NO. The investigating judges authority is only to investigate, make a report and recommendation on the case to be submitted to the SC for final determination. (Graciano vs. Sebastian, 231 SCRA 588) Q: What is the effect of desistance, withdrawal or complaint or non-appearance of complainant in disbarment proceedings? A: The desistance or the withdrawal of the complainant of the charges against a judge does not deprive the court the authority to proceed to determine the matter. Nor does it necessarily result in the dismissal of the complaint except when, as a consequence of the withdrawal or desistance no evidence is adduced to prove the charges. This rule is founded on the rationale that disbarment proceedings is neither civil nor criminal but one prosecuted solely for the public interest. What is important is whether the charges against the respondent have been duly proved. Q: What is the doctrine of RES IPSA LOQUITOR? A: This principle or doctrine applies to both judges and lawyers. Judges had been dismissed from the service without need for a formal investigation because based on the records, the gross misconduct or inefficiency of the judges clearly appears. (Uy vs. Mercado, 154 SCRA 567). The same principle applies to lawyers. Thus, on the basis of the lawyers comment or answer to a show-cause order of SC, it appears that the lawyer has so conducted himself in a manner which exhibits his blatant disrespect to the court, or his want of good moral character or his violation of the attorneys oath, the lawyer may be suspended or disbarred without need of a trial-type proceeding. What counts is that the lawyer has been given the opportunity to give his side. (Prudential Bank vs. Castro 156 SCRA 604) Q: Who has the exclusive authority to reinstate? How?
34
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
A: The Supreme Court has the exclusive authority to reinstate.Petitioner must prove that he is once again fit and proper person to practice law. 1. His conduct prior and subsequent to disbarment 2. Nature and character of the misconduct for which he was disbarred 3. The time that lapsed between the disbarment and the application for reinstatement (Prudential Bank vs. Benjamin Grecia, 19 SCRA 381) Q: Upon what ground may a suspended attorney ask for reinstatement? A: A lawyer who has been suspended or disbarred may be reinstated when the SC is convinced that he has already possessed the requisites of probity and integrity necessary to guarantee his worth to practice his profession. Q: Is a disbarred lawyer due to conviction from a crime automatically reinstated to the practice of law upon being pardoned by the President? A: NO. To be reinstated, there is still need for the filing of an appropriate petition with the SC. Q: What is the effect of executive pardon during the pendency of a disbarment proceeding? A: If during the pendency of a disbarment proceeding the respondent was granted executive pardon, the dismissal of the case on that sole basis will depend on whether the executive pardon is absolute or conditional. If the pardon is absolute or unconditional, the disbarment case will be dismissed. However, if the executive pardon is conditional, the disbarment case will not be dismissed on the basis thereof.
was filed may indicate ulterior motive on part of complainant or innocence on part of respondent Modifying Circumstance Extent of disciplinary action depends on attendance of mitigating or aggravating circumstance.
Mitigating Circumstances
1. 2. 3. 4. 5. Good faith Want of intention to commit wrong Lack of material damage to complainant Desistance of complainant Youth and inexperienced in bar, etc.
Aggravating Circumstances
1. Abuse of authority or of attorneyclient relationship 2. Sexual intercourse w/ LLB relative. 3. Making institution of marriage a mockery 4. Charge of gross immorality 5. Lawyer previously dismissed as member of bar
Exception:
When as a consequence of withdrawal or desistance, no evidence adduced to prove charges, in which case court dismisses case.
Test:
Whether on basis of the facts borne out by record, charges against respondent have been proved.
35
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
Executive Pardon Absolute Pardon by President may wipe out conviction as well as offense itself and grant thereof in favor of LLB is bar to proceeding for disbarment against him based solely on comm. of offense. If absolute pardon is given to lawyer after being disbarred for conviction of crime, it does not automatically entitle him to reinstatement to bar. It must be showed by evidence aside from absolute pardon that hes now a person of good moral character and fit and proper person to practice law. In case of a Conditional Pardon, there will be a remission of unexpired period of sentence. Reinstatement Authority to Reinstate SC also has the power to admit or remove; stems from the constitutional prerogative to issue rules and regulations concerning admission to practice of law
The official national unification of the entire lawyer population of the Philippines. This requires membership and financial support in reasonable amount of every attorney as conditions sine qua non to the practice of law and the retention of his name in the Roll of Attorneys.
The Board of governors shall provide the By-Laws for grievance procedure for the enforcement and maintenance of discipline among all the members of the IBP, but no action involving the suspension or disbarment of a member or the removal of his name from the Roll of Attorneys shall be effective w/o the final approval of the SC. (Rule 13s9-A,Section 12, Rules of Court) Q: Is the compulsory membership in the IBP violative of the lawyers constitutional freedom to associate or corollary right not to associate? A: NO. Integration does not make a lawyer a member of any group of which he is already a member. He became a member of the bar when he passed the Bar Examinations. All that integration actually does is to provide an official national organization for the well defined but unorganized and incohesive group of which every lawyer is already a member. (In re: Edillon A.M. 1928) Q: May a member of the IBP voluntarily terminate his membership therein? A: YES, by filing a verified notice to that effect with the Secretary of IBP who shall immediately bring the matter to the attention of the SC. Forthwith, he shall cease to be a member and his name shall be stricken from the Roll of Attorneys. Q: What is the effect of failure to pay annual membership dues to the IBP? A: The failure of any attorney to pay his annual membership dues for 6 months shall warrant suspension of his membership in the IBP and default of such payment for one year shall be a ground for the removal of his name from the Roll of Attorneys. (Sec. 10, Rule 139-A, Rules of Court). Q: May a lawyer be disciplined either by the IBP or the Court for failing to pay her obligation to complainant ? A: NO. A lawyer may not be disciplined either by the IBP or the Court for failing to pay her obligation to complainant, a matter in her non-
1. Character or standing prior of disbarment 2. Nature or character of misconduct for which he is disbarred 3. Conduct subsequent to disbarment 4. Efficient government service 5. Time that elapsed between disbarment 6. Application for reinstatement & circumstances that hes been punished 7. Application, appreciation of significance of his dereliction. 8. Assurance that he now posses probity & integrity 9. Favorable indorsement of IBP, pleas of loved ones. The court may require applicant for reinstatement to enroll in & pass the required 4 th yr. review classes in a recognized law school. (Cui vs. Cui) Effect of reinstatement 1. Recognized of moral rehabilitation and mental fitness to practice law 2. Subject to same law, rules & regulations. As those applicable to any other lawyer. 3. Comply with condition imposed on his readmission.
National organization of lawyers created on January 16, 1973 under Rule 139-A, Rules of Court and constituted on May 4, 1973 into a body corporate by P.D. No. 181
36
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee
professional or private capacity. (Toledo vs. Abalos, A. C. No. 5141, September 29, 1999 )
Q: Is wanton disregard of the lawful orders of the IBP Commission on Bar Discipline a ground for suspension of a lawyer from the practice of law? A: YES. A lawyer was suspended from the practice of law for one month due to her wanton disregard of the lawful orders of the IBP Commission on Bar Discipline. ( Toledo vs. Abalos, A. C. No. 5141, September 29, 1999 )
37
Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA , Chairperson, JANALYN GAINZA, EDP MEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee