Golden Notes Legal Ethics
Golden Notes Legal Ethics
Golden Notes Legal Ethics
AND
JUDICIAL ETHICS
Academics Committee
Faculty of Civil Law
University of Santo Tomas
Espaa, Manila 1008
All Rights Reserved by the Academics Committee of the Faculty of Civil Law of the
Pontifical and Royal University of Santo Tomas, the Catholic University of the
Philippines.
2014 Edition
A copy of this material without the corresponding code either proceeds from an illegal
source or is in possession of one who has no authority to dispose the same.
No. __________
TEAM: BAR-OPS
VANESSA ANNE VIRAY CHAIRPERSON
ERIKA PINEDA HEAD, DOCUMENTATIONS & BAR REQUIREMENTS
JOHN LESTER TAN ASST. HEAD, DOCUMENTATIONS & BAR REQUIREMENTS
HAZEL NAVAREZ HEAD, HOTEL ACCOMODATIONS COMMITTEE
HANNAH QUIAMBAO ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE
JULIA THERESE MAGARRO ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE
RAFAEL LORENZ SANTOS HEAD, FINANCE COMMITTEE
DEXTER SUYAT ASST. HEAD, FINANCE COMMMITTEE
AL MAYO PAGLINAWAN HEAD, LOGISTICS COMMITTEE
ALBERTO VERNON VELASCO ASST. HEAD, LOGISTICS COMMITTEE
KEVIN TIMOTHY PILE ASST. HEAD, LOGISTICS COMMITTEE
JEAN PEROLA HEAD, PUBLIC RELATIONS
PATRICIA LACUESTA ASST. HEAD, PUBLIC RELATIONS
REINALD VILLARAZA ASST. HEAD, PUBLIC RELATIONS
VANESSA ANNE VIRAY CHAIRPERSON
ACADEMIC OFFICIALS
I. LEGAL ETHICS
A. Practice of Law (Rule 138)............................................................................................................... 1
1. Concept.................................................................................................................................... 1
a) Privilege..................................................................................................................... 3
b) Profession, not Business............................................................................................ 3
2. Qualifications............................................................................................................................ 3
3. Appearance of Non-Lawyers.................................................................................................... 6
a) Law Student Practice (Rule 138-A)............................................................................. 6
b) Non-Lawyers in Court................................................................................................ 6
c) Non-Lawyers in Administrative Tribunals.................................................................. 7
4. Sanctions from practice or appearance without authority...................................................... 8
a) Lawyers without authority......................................................................................... 8
b) Persons not lawyers................................................................................................... 8
5. Public Officials and the practice of law ................................................................................. 10
a) Prohibition or disqualification of former government attorneys............................... 10
b) Public officials who cannot practice law/ restrictions................................................ 10
6. Lawyers authorized to represent the Government.................................................................. 12
7. Lawyer's Oath............................................................................................................................ 12
10. Public prosecutor v. Private prosecutor A legal profession is not a business. It is not a money-
making trade just like a businessman employing strategy
PUBLIC PROSECUTOR PRIVATE PROSECUTOR for the purpose of monetary gain. It is a sacred
He is a quasi-judicial A private prosecutor is a profession imbued with public interest whose primary
officer who represents lawyer engaged by a objective is public service, as it is an essential part in the
the state in criminal litigant to intervene in administration of justice and a profession in pursuit of
proceedings. the prosecution of a which pecuniary reward is considered merely incidental.
criminal action when the
offended party is QUALIFICATIONS
entitled to indemnity
and has not waived Who may practice law
expressly, reserved or
instituted the civil action Any person heretofore duly admitted as a member of
for damages. He is under the bar, or hereafter admitted as such in accordance
the direction and control with the provisions of the rule, and who is in good and
of the public prosecutor regular standing, is entitled to practice law (RRC, Rule
(Sec. 5 Rule 110 RRC as 138, Sec. 1).
amended, May 1, 2002).
Q: A criminal case was filed against Atty. Javellana,
11. Assumpsit (2006 Bar Question) which resulted to his arrest and temporary detention
at the house of the clerk of court where his case was
Literally means he has undertaken. It is an action for pending. Despite his detention, Atty. Javellana
the recovery of damages by reason of the breach or non- continues with his normal activities including his
performance of a simple contract, either express or practice of law, in appearing as counsel for certain
implied, or whether made orally or in writing. Assumpsit cases. Can Atty. Javellana still engage in the practice of
is the word always used in pleadings by the plaintiff to law despite his arrest and detention?
set forth the defendants undertaking or promise.
A: As a detention prisoner, Javellana is not allowed to
NOTE: Claims in action of assumpsit were ordinarily divided practice his profession as a necessary consequence of
into (a) common or indebitatus assumpsit, brought usually on his status as a detention prisoner. The trial court's order
an implied promise, and (b) special assumpsit, founded on an was clear that Javellana "is not to be allowed liberty to
express promise. roam around but is to be held as a detention prisoner."
The prohibition to practice law referred to all other
12. Pro Se cases, except in cases where Javellana would appear in
court to defend himself (Pro Se).
A party to a lawsuit who represents himself, is appearing
in the case "pro se." All prisoners whether under preventive detention or
serving final sentence cannot practice their profession
PRIVILEGE
nor engage in any business or occupation, or hold office,
elective or appointive, while in detention. This is a
Nature of the practice of law
necessary consequence of arrest and detention (People
v. Maceda, G.R. Nos. 89591-96, Jan. 24, 2000).
The practice of law is not a natural, property or
constitutional right but a mere privilege. It is not a right
Legislature is not allowed to regulate the practice of
granted to anyone who demands it but a privilege to be
law
extended or withheld in the exercise of sound judicial
discretion. It is a privilege accorded only to those who
The 1987 Constitution no longer provides for the power
measure up to certain rigid standards of mental and
of the legislature to repeal, alter and supplement the
moral fitness.
Rules promulgated by the Supreme Court.
NOTE: It becomes a property right if there is a contract for
Attorneys Fees. Practice of law by the clerk of court
PROFESSION, NOT BUSINESS GR: The practice of law by a clerk of court is not allowed,
except isolated practice.
Law is a profession and not a trade
XPNs:
1. Written permission which must be approved by the
UNIVERSITY OF SANTO TOMAS
3 FACULTY OF CIVIL LAW
Legal Ethics
Supreme Court; and A Filipino citizen who completed and obtained his or her
2. Approved leave of absence with justifiable reasons degree in Bachelor of Laws or its equivalent in a foreign
law school must also present proof of completion of a
NOTE: Notarial act is practice of law. Notarization of a single separate bachelors degree (Bar Matter No. 1153, Re:
document is not an isolated transaction, therefore, a permit Letter of Atty. Estelito P. Mendoza Proposing Reforms in
must be secured in order to prevent the violation of law. the Bar Examinations through Amendments to Rule 138
of the Rules of Court, Mar. 9, 2010).
Q: Atty. Ladaga, a clerk of court, appeared as counsel
for and in behalf of his cousin in a criminal case for The 5 Strike Rule in taking the Bar
falsification of public documents before the METC of
Quezon City. The appearance of Atty. Ladaga in said The Former 5-Strike Rule was lifted by the Supreme
case was without the previous permission of the Court. Court en banc in a resolution on September 3, 2013.
Did Atty. Ladaga violate the Code of Conduct and Thus, to this day, the taking of the bar has no limit.
Ethical Standards for Public Officials and Employees by
engaging in private practice? Q: Ching was born on April 1964 of Filipino mother and
Chinese father. He was conditionally admitted to take
A: Yes. "Private practice" of a profession, which is the bar examination because of questions arising to his
prohibited, does not pertain to an isolated court citizenship. Upon passing the bar he was required to
appearance; rather, it contemplates a succession of acts take further proof of citizenship and was not allowed
of the same nature habitually or customarily holding to take the oath. Can he elect Philippine citizenship, 14
one's self to the public as a lawyer. It is true that he filed years after reaching the age of majority (required
leave applications corresponding to the dates he under the 1935 Constitution)?
appeared in court but he failed to obtain a prior
permission from the head of the Department (Oca v. A: No, Ching is not qualified to be a lawyer for having
Atty. Ladaga, A.M. No. P-99-1287, Jan. 26, 2001). elected Philippine citizenship 14 years after reaching the
age of majority. Ching offered no reason why he delayed
Requirements for admission to the Bar the election of Philippine citizenship. The procedure is
not a tedious process. All that is required is to execute
Under Sections 2, 5 and 6 of Rule 138, the applicant must an affidavit and file the same in the nearest registry (In
be (C21GRENAPOS): Re: Application for Admission to the Philippine Bar of
1. Citizen of the Philippines; Vicente Ching, B.M. 914, Oct. 1, 1999).
2. At least 21 years of age;
3. Of Good moral character; Q: Atty. Melendrez filed a petition to disqualify Meling
4. Resident of the Philippines; from taking the bar exams and to impose disciplinary
5. Must produce before the SC satisfactory Evidence of penalty as a member of the Philippine Shari'a Bar. He
good moral character; alleges that Meling, in his application to take the bar,
6. No charges against him, involving moral turpitude, failed to disclose the fact that he has 3 pending criminal
have been filed or are pending in any court in the cases. Also, Meling has been using the title Attorney"
Philippines (Sec. 2, Rule 138, RRC); in his communications as secretary to the Mayor.
7. Must have complied with the Academic Should Meling be disqualified from admission to the
requirements; Bar?
8. Must Pass the bar examinations;
9. Take the lawyers Oath; and A: Meling's deliberate silence and non-revelation of his
10. Sign the Roll of Attorneys. pending criminal cases constitute concealment. The
disclosure requirement is imposed to determine
Requirements for a Filipino who graduated from a whether there is satisfactory evidence of good moral
foreign law school to be admitted to the Bar character of the applicant. By concealing the existence
of such cases, the applicant flunks the test of fitness
He may be admitted to the bar only upon submission to even if the cases are ultimately proven unwarranted or
the Supreme Court of certifications showing: insufficient to impugn or affect the good moral character
a) Completion of all courses leading to the degree of of the applicant. Further, It was highly improper for
Bachelor of Laws or its equivalent degree; Meling, as member of the Shari'a Bar, to use the title
b) Recognition or accreditation of the law school by "Attorney". Only members of the Philippine Bar, who
the proper authority; and have obtained the necessary degree in the study of law
c) Completion of all fourth year subjects in the and successfully passed the bar exams, been admitted
Bachelor of Laws academic program in a law school to the IBP and remain members in good standing are
duly recognized by the Philippine Government. authorized to practice law and thus use the title (In Re:
UNIVERSITY OF SANTO TOMAS
2014 GOLDEN NOTES
4
PRACTICE OF LAW
Disqualification of Bar Examinee Haron S. Meling, B.M. an attorney requires that a lawyer shall be a person of
No. 1154, June 8, 2004). good moral character. Since this qualification is a
condition precedent to a license to enter upon the
Q: Mike Adelantado disclosed in his petition to take the practice of law, the maintenance thereof is equally
2003 bar examinations that there were two civil cases essential during the continuance of the practice and the
pending against him for nullification of contract and exercise of the privilege. Gross misconduct which puts
damages. He was thus allowed to conditionally take the lawyer's moral character in serious doubt may
the bar, and subsequently placed third in the said render her unfit to continue in the practice of law. The
exams. In 2004, after the two civil cases had been loss of moral character of a lawyer for any reasons
resolved, Mike Adelantado filed his petition to take the whatsoever shall warrant her suspension or disbarment,
Lawyers Oath and sign the Roll of Attorneys before the because it is important that members of the legal
Supreme Court. The Office of the Bar Confidant, brotherhood must conform to the highest standards of
however, had received two anonymous letters: the morality. Any wrongdoing, which indicates moral
first alleged that at the time Mike Adelantado filed his unfitness for the profession, whether it is professional or
petition to take the bar, he had two other civil cases non-professional, justifies disciplinary action.
pending against him, as well as a criminal case for
violation of B.P. 22; the other letter alleged that Mike Moreover, her deliberate refusal to accept the notices
Adelantado, as Sangguniang Kabataan Chairperson, served on her betrays a deplorably willful character or
had been signing the attendance sheets of SK meetings disposition (Grande v. Atty. De Silva, A.C. No. 4838, July
as Atty. Mike Adelantado. Having passed the Bar, can 29, 2003).
Mike already use the appellation attorney? Explain
your answer. Q: Argosino passed the bar examinations held in 1993.
The Court however deferred his oath-taking due to his
A: No. Passing the Bar examination is not sufficient for previous conviction for Reckless Imprudence Resulting
admission of a person to the Philippine Bar. He still has in Homicide. The criminal case, which resulted in
to take the oath of office and sign the Attorneys Roll as Argosinos conviction, arose from the death of a
prerequisites to admission. Only those who have been neophyte during fraternity initiation rites. Various
admitted to the Philippine Bar can be certifications show that he is a devout Catholic with a
called Attorney." Further, he should not be allowed to genuine concern for civic duties and public service. Also,
take his oath and sign the Attorneys Roll. Rule 7.01 of it has been proved that Mr. Argosino has exerted all
the Code of Professional Responsibility provides that a efforts to atone for the death of Raul. Should Argosino
lawyer shall be answerable for knowingly making a false be allowed to take his lawyer's oath?
statement or suppressing a material fact in connection
with his application for admission to the Bar (Alawi v. A: Yes. The practice of law is a privilege granted only to
Alauya, A.M. No. SDC-97-2-P, Feb. 4, 1997). those who possess the strict intellectual and moral
qualifications required of lawyers who are instruments
Q: Grande was the private offended party in a criminal in the effective and efficient administration of justice.
case while Atty. De Silva was the counsel for the The SC recognizes that Mr. Argosino is not inherently of
accused. During the course of the proceedings, Atty. De bad moral fiber given the various certifications that he is
Silva tendered a check in favor of Grande in order for a devout Catholic with a genuine concern for civic duties
the latter to desist from participating as a witness and public service and that it has been proved that he
against her client. Eventually, Grande accepted the has exerted all efforts to atone for the death of Raul and
check and refused to participate as a complaining the court gave him the benefit of the doubt, taking
witness thereby leading to the dismissal of the case. judicial notice of the general tendency of youth to be
However, to Grandes consternation, the check rash, temerarious and uncalculating (Re: Petition of Al
bounced because Atty. De Silvas account was already Argosino to Take the Lawyers Oath, B.M. No. 712, Mar.
closed. When the court ordered Atty. De Silva to 19, 1997).
comment on the charges against her, she deliberately
refused to accept all the notices coming from the court. Good moral character is a continuing requirement
Is Atty. De Silva guilty of breach of trust? Did she violate
her oath as a lawyer by issuing a bouncing check and by Well-settled is the rule that good moral character is not
refusing to accept the notices sent to her coming from only a condition precedent for admission to the legal
the court? profession, but it must also remain intact in order to
maintain ones good standing in that exclusive and
A: Yes, Atty. De Silva had committed a breach of trust in honored fraternity (Tapucar v. Tapucar, A.C. No. 4148,
issuing a bouncing check, which amounted to deceit and July 30, 1998).
violation of the lawyers oath. The nature of the office of
UNIVERSITY OF SANTO TOMAS
5 FACULTY OF CIVIL LAW
Legal Ethics
The requirement of good moral character has four Q: Ferdinand Cruz sought permission to enter his
general purposes, namely: appearance for and on his behalf before the RTC as the
plaintiff in a Civil Case for Abatement of Nuisance. Cruz,
1. To protect the public a fourth year law student, anchors his claim on Section
2. To protect the public image of lawyers 34 of Rule 138 of the Rules of Court that a non-lawyer
3. To protect prospective clients may appear before any court and conduct his litigation
4. To protect errant lawyers from themselves. personally. Judge Mijares denied the motion with
finality. In the same Order, the trial court held that for
Each purpose is as important as the other (Garrido v. the failure of Cruz to submit the promised document
Attys. Garrido and Valencia, A.C. No. 6593, Feb. 4, 2010). and jurisprudence and for his failure to satisfy the
requirements or conditions under Rule 138-A of the
APPEARANCE OF NON-LAWYERS Rules of Court, his appearance was denied. Did the
court act with grave abuse of discretion amounting to
Appearance of non-lawyers lack or excess of jurisdiction when it denied the
appearance of Cruz as party litigant?
GR: Only those who are licensed to practice law can
appear and handle cases in court. A: Yes. The law recognizes the right of an individual to
represent himself in any case to which he is a party. The
XPNs: Rules state that a party may conduct his litigation
1. Law student practice personally or with the aid of an attorney, and that his
2. Non-lawyers in court can appear for a party in MTC appearance must either be personal or by a duly
authorized member of the Bar. The individual litigant
NOTE: Section 34, Rule 138 of the Revised Rules of Court
may personally do everything in the course of
expressly allows pro se practice or the right of a non-
member of the bar to engage in limited practice of law proceedings from commencement to the termination of
(Antiquiera, 1992). the litigation. Cruz as plaintiff, at his own instance, can
personally conduct the litigation of his case. He would
3. Non-lawyers in administrative tribunal can then be acting not as a counsel or lawyer, but as a party
represent parties in tribunals such as NLRC, exercising his right to represent himself.
DARAB, Cadastral Courts.
The trial court must have been misled by the fact that
LAW STUDENT PRACTICE Cruz is a law student and must, therefore, be subject to
the conditions of the Law Student Practice Rule. It erred
Law student practice rule in applying Rule 138-A, when the basis of Cruz's claim is
Section 34 of Rule 138. The former rule provides for
A law student who has successfully completed his third conditions when a law student may appear in courts,
year of the regular four-year prescribed law curriculum while the latter rule allows the appearance of a non-
and is enrolled in a recognized law school's clinical legal lawyer as a party representing himself (Cruz v. Mijares,
education program approved by the Supreme Court, et al., G.R. No. 154464, Sept. 11, 2008).
may appear without compensation in any civil, criminal
or administrative case before any trial court, tribunal,
board or officer, to represent indigent clients accepted NON-LAWYERS IN COURT
by the legal clinic of the law school (Sec. 1, Rule 138-A).
Non-lawyers in court
The appearance of the law student authorized by this
rule, shall be under the direct supervision and control of The following are the instances whereby non-lawyers
a member of the Integrated Bar of the Philippines duly may appear in court:
accredited by the law school. Any and all pleadings,
motions, briefs, memoranda or other papers to be filed, 1. Cases before the MTC: A party to the litigation, may
must be signed by the supervising attorney for and in conduct his own case or litigation in person, with
behalf of the legal clinic (Rule 138-A, Sec. 2). the aid of an agent or friend appointed by him for
that purpose (RRC, Rule 138, Sec. 34);
NOTE: The law student shall comply with the standards of 2. Before any other court, a party may conduct his
professional conduct governing members of the Bar. Failure of
litigation personally. But if he gets someone to aid
an attorney to provide adequate supervision of student
practice may be a ground for disciplinary action (Circular No.19, him, that someone must be authorized member of
dated Dec. 19, 1986). the Bar (RRC, Rule 138, Sec. 34);
With regard to a juridical person, it must always appear in Q: Kanlaon Construction and Reluya, et al. cases were
court through a duly licensed member of the bar, except assigned before two labor arbiters. The Engineers as
before MTC where it may be represented by its agent or officer co-defendant, without written authority to represent
who need not be a lawyer. Kanlaon Construction, admitted the complaints against
them. By virtue of such, the labor arbiters adjudicated
Limits on the appearance of non-lawyers the case in favor of Reluya and the others. Can an
engineer represent a co-defendant in a case before the
1. He should confine his work to non-adversary Labor Arbiter?
contentions;
2. He should not undertake purely legal work, such as A: No, the appearance of the engineer on behalf of
the examination or cross- examination of witnesses, Kanlaon Construction required written proof of
or the presentation of evidence; and authorization. It was incumbent upon the arbiters to
3. His services should not be habitually rendered. He ascertain this authority especially since both engineers
should not charge or collect attorneys fees (PAFLU were named co-respondents in the cases before the
v. Binalbagan Isabela Sugar Co., G.R. No. L-23959, arbiters. Absent this authority, whatever statements
Nov. 29,1971). and declarations the engineers made before the arbiters
could not bind Kanlaon.
NON-LAWYERS IN ADMINISTRATIVE TRIBUNAL
Nevertheless, even assuming that the engineers were
1. Under the Labor Code, non-lawyers may appear authorized to appear as representatives of Kanlaon, they
before the NLRC or any Labor Arbiter, if: could bind the latter only in procedural matters before
a. They represent themselves; or the arbiters and the Commission. Kanlaon's liability
b. They represent their organization or members arose from engineers alleged promise to pay. A promise
to pay amounts to an offer to compromise and requires Directors of KWD. Dela Pea board appointed
a special power of attorney or the express consent of respondents Atty. N, V and M as private collaborating
Kanlaon. The authority to compromise cannot be lightly counsels for all cases of KWD and its Board of Directors,
presumed and should be duly established by evidence under the direct supervision and control of Atty. I.
(Kanlaon Construction v. NLRC, G.R. No. 126625, Sept. 18, Meanwhile, the OGCC had approved the retainership
1997). contract of Atty. C as new legal counsel of KWD and
stated that the retainership contract of Atty. I had
PROCEEDINGS WHERE LAWYERS ARE expired. The termination of Atty. Is contract was said
PROHIBITED FROM APPEARING to be justified by the fact that the Local Water Utilities
Administration had confirmed the Yaphockun board as
Proceedings where lawyers are prohibited from the new Board of Directors of KWD and that said board
appearing had terminated Atty. Is services and requested to hire
another counsel. Complainants then filed a disbarment
1. Proceedings before the Small Claims Court - No complaint against counsels V and M alleging that
attorney shall appear in behalf of or represent a respondents acted as counsel for KWD without legal
party at the hearing, unless the attorney is the authority. Are their contentions tenable?
plaintiff or defendant (Rule of Procedure for Small
Claims Cases, Sec. 17). A: Yes. Attys. N, V and M had no valid authority to
appear as collaborating counsels of KWD. Nothing in the
NOTE: If the court determines that a party cannot records shows that Atty. N was engaged by KWD as
properly present his/her claim or defense and needs collaborating counsel. There is no proof that the OGCC
assistance, the court may, in its discretion, allow another
and COA approved their engagement as legal counsel or
individual who is not an attorney to assist that party upon
collaborating counsel. In the case of Atty. I, he also
the latters consent (Rule of Procedure for Small Claims
Cases, Sec. 17). appeared as counsel of KWD without authority, after his
authority as its counsel had expired.
2. Proceedings before the Katarungang Pambarangay
- During the pre-trial conference under the Rules of Under Section 27, Rule 138 of the Rules of Court, a
Court, lawyers are prohibited from appearing for member of the Bar may be disbarred or suspended
the parties. Parties must appear in person only from his office as attorney by the Supreme Court for
except minors or incompetents who may be corruptly or willfully appearing as an attorney for a
assisted by their next of kin who are not lawyers party to a case without authority to do so. Disbarment,
(P.D. No. 1508, Formerly Sec. 9; Local Government however, is the most severe form of disciplinary
Code of 1991, R.A. 7160, Sec. 415). sanction, and, as such, the power to disbar must always
be exercised with great caution, and should be imposed
SANCTIONS FOR PRACTICE OR only for the most imperative reasons and in clear cases
APPEARANCE WITHOUT AUTHORITY of misconduct affecting the standing and moral
character of the lawyer as an officer of the court and
Remedies against unauthorized practice of law (ICE- member of the Bar. Accordingly, disbarment should not
DA) be decreed where any punishment less severe such as a
reprimand, suspension or fine, would accomplish the
1. Petition for Injunction; end desired (Vargas v. Atty. Ignes, Atty. Mann, Atty.
2. Contempt of court; Viajar and Atty. Nadua, A.C. No. 8096, July 5, 2010).
3. Criminal complaint for Estafa against a person who
NOTE: In any case, an unauthorized appearance of an attorney
falsely represented himself to be an attorney to the
may be ratified by the client either expressly or impliedly.
damage of a party;
Ratification retroacts to the date of the lawyers first
4. Disqualification and complaints for disbarment; or appearance and validates the action taken by him (Sps.
5. Administrative complaint against the erring lawyer Agbulos v. Gutierrez, G.R. No. 176530, June 16, 2009).
or government official.
PERSONS NOT LAWYERS
Q: KWD, a GOCC, hired respondent, Atty. I, as private
legal counsel for one (1) year effective with the consent Remedies against unauthorized practice of law by
of the Office of the Government Corporate Counsel persons not lawyers (ICE)
(OGCC) and the Commission on Audit (COA). The
controversy erupted when two (2) different groups, 1. Petition for Injunction;
herein referred to as the Dela Pea board and 2. Contempt of court;
Yaphockun board, laid claim as the legitimate Board of 3. Criminal complaint for Estafa against a person who
falsely represented himself to be an attorney to the protect or vindicate the dignity and power, either by fine
damage of a party; payable to the government or by imprisonment, or both,
it is deemed a judgment in criminal case.
Sanctions for persons who are not lawyers
Where the punishment is by fine directed to be paid to a
party in the nature of damages for the wrong inflicted, or
They shall be punished with contempt of court, severe by imprisonment as coercive measure to enforce the
censure and three (3) months imprisonment because of performance of some act for the benefit of the party or in
the highly fraudulent and improper conduct tending aid of the final judgment or decree rendered in his behalf,
directly to impede, obstruct, degrade, and make a the contempt judgment will, if made before final decree,
mockery of the administration of justice (Manangan v. be treated as in the nature of an interlocutory order.
CFI, G.R. No. 82760, Aug. 30,1990; Lapena, 2009).
Two-fold aspect of contempt power (1998 Bar
NOTE: A Disbarred lawyer still appearing in court is guilty of Question)
indirect contempt (Lemoine v. Atty. Balon, Jr., A.C. No. 5829,
Oct. 28, 2003). 1. The proper punishment of the guilty party for his
disrespect to the court or its order; and
Power of contempt v. Power to disbar 2. To compel his performance of some act or duty
required of him by the court which he refuses to
The power to punish for contempt and the power to perform.
disbar are separate and distinct, and that the exercise of
one does not exclude the exercise of the other (People v. NOTE: The question of whether the contempt committed is
Godoy, G.R. Nos. 115908-09, Mar. 29, 1995). civil or criminal, does not affect the jurisdiction or the power
of a court to punish the same (Halili v. CIR, G.R. No. L-24864,
Q: Dela Cruz misrepresented himself as a lawyer in the Nov. 19, 1985).
application for habeas corpus of Gamido. What
punishment should the court impose on Dela Cruz? A practicing lawyer and officer of the court facing contempt
proceedings cannot just be allowed to voluntarily retire from
A: The Court declared him guilty of indirect contempt for the practice of law which would negate the inherent power of
maliciously and falsely portraying himself as a member the court to punish him for contempt (Montecillo v. Gica, 60
SCRA 234).
of the bar, appearing in court and filing pleadings (In the
Matter of the Application for Habeas Corpus of
Maximino Gamido; Gamido v. New Bilibid Prison, G.R. Q: A judge cited complainant, a driver at the
146783, July 29, 2002). Engineering Department of the Makati City Hall, in
contempt for using the formers parking space, and
Kinds of contempt refused to accept the drivers apology. He sentenced
the driver to five (5) days imprisonment and a fine of
1. Direct Consists of misbehavior in the presence of (P1,000.00). Is the judge administratively liable for
or so near a court or judge as to interrupt or grave abuse of authority in citing the driver for
obstruct the proceedings before the court or the contempt of court?
administration of justice; punished summarily.
2. Indirect One committed away from the court A: Yes. The Court does not see how the improper
involving disobedience of or resistance to a lawful parking by the driver could even in the remotest manner
writ, process, order, judgment or command of the disrupt the speedy administration of justice. At most, it
court, or tending to belittle, degrade, obstruct, would cause the Judge inconvenience or annoyance, but
interrupt or embarrass the court; not summary in still, this does not fall under any of the acts for which a
nature. person could be cited for contempt. Neither does it
3. Civil Is the failure to do something ordered to be appear from the records, nor from the evidence
done by a court or a judge for the benefit of the presented, that the complainant intended any
opposing party therein. It is remedial in nature. disrespect toward respondent Judge. Worse, the Judge
4. Criminal Conduct directed against the authority immediately detained the driver, thereby preventing
and dignity of a court or of a judge, as in unlawfully him from resorting to the remedies provided under the
assailing or discrediting the authority or dignity of a Rules of Court. Such abusive behavior on the part of
court or of a judge, or in doing a duly forbidden act. respondent judge fails to show his integrity, which is
Intent is necessary. essential not only to the proper discharge of the judicial
office, but also to his personal demeanor (Nunez v. Ibay,
NOTE: Where the punishment imposed, whether against A.M. No. RTJ-06-1984, June 30, 2009).
a party to a suit or a stranger, is wholly or primarily to
Sec. 8 [second par.], Art. IX). Tuguegarao. Taggat Industries was sequestered by the
7. All governors, city and municipal Mayors (R.A. No. PCGG and thus ceased its operations. As Assistant
7160, Sec. 90). Provincial Prosecutor, he assigned to conduct the
8. Those prohibited by Special law. preliminary investigation over a criminal case filed
against Taggat Industries. He recommended the filing
Restrictions on the practice of law to certain of 651 informations for violation of the Labor Code. He
individuals (1992, 2000 Bar Questions) was charged for violating Rule 15.03 of the Code of
Professional Responsibility and for defying the
1. No Senator or member of the House of prohibition against private practice of law while
Representatives may personally appear as working as government prosecutor. Is Atty. Sagucio
counsel before any court of justice or before the guilty of engaging in private practice of law while
Electoral Tribunals, or quasi-judicial and other working as an Assistant Provincial Prosecutor?
administration bodies (1987 Constitution, Art. VI,
Sec. 14). A: Yes. Private practice of law contemplates a
2. Under the Local Government Code (RA 7160, Sec. succession of acts of the same nature habitually or
91), Sanggunian members may practice their customarily holding ones self to the public as a lawyer.
professions provided that if they are members of Atty. Sagucio admitted that he rendered his legal
the Bar, they shall NOT: services to complainant while working as a government
a. Appear as counsel before any court in any civil prosecutor. Even the receipts he signed stated that the
case wherein a local government unit or any payments by Taggat were for "Retainers fee. Thus, as
office, agency, or instrumentality of the correctly pointed out by complainant, Atty. Sagucio
government is the adverse party clearly violated the prohibition in RA 6713.
b. Appear as counsel in any criminal case wherein
an officer or employee of the national or local Atty. Sagucios violation of RA 6713 also constitutes a
government is accused of an offense violation of Rule 1.01 of Canon 1, which mandates that
committed in relation to his office [a] lawyer shall not engage in unlawful, dishonest,
c. Collect any fee for their appearance in immoral or deceitful conduct. His admission that he
administrative proceedings involving the local received from Taggat fees for legal services while serving
government unit of which he is an official as a government prosecutor is an unlawful conduct,
d. Use property and personnel of the government which constitutes a violation of Rule 1.01 (Lim- Santiago
except when the Sanggunian member v. Saguico, A.C. No. 6705, Mar. 31,2006).
concerned is defending the interest of the
government. NOTE: Violations of RA 6713 are not subject to disciplinary
action under the Code of Professional Responsibility unless the
violations also constitute infractions of specific provisions of
3. Under Sec. 1, R.A. 910, as amended, a retired justice
the Code of Professional Responsibility. Certainly, the IBP has
or judge receiving pension from the government,
no jurisdiction to investigate violations of RA 6713 the Code
cannot act as counsel: of Conduct and Ethical Standards for Public Officials and
a. In any civil case in which the Government, or Employees unless the acts involved also transgress provisions
any of its subdivision or agencies is the adverse of the Code of Professional Responsibility.
party; or Q: Atty. Eliseo represented Allan in a collection suit
b. In a criminal case wherein an officer or against the Philippine Charity Sweepstakes Office
employee of the Government is accused of an (PCSO). After his election as sangguniang bayan
offense in relation to his office; nor member, the court rendered a decision in PCSOs favor.
c. Collect any fees for his appearance in any Still, Atty. Eliseo appeared for Allan in the latters
administrative proceedings to maintain an appeal, prompting the PCSO to question his right to do
interest adverse to the government, provincial so. In response, Atty. Eliseo claimed that the local
or municipal, or to any of its legally constituted government code authorizes him to practice law as
officers (R.A. 910, Sec. 1) long it does not conflict with his duties. Is Atty. Eliseo
correct? (2011 Bar Question)
4. Civil service officers and employees without permit
from their respective department heads (Noriega v. A: No, because he cannot appear against a government
Sison, G.R. No. L- 24548, Oct. 27, 1983). instrumentality in a civil case.
Q: Atty. Sagucio was the former Personnel Manager NOTE: While certain local elective officials (like governors,
and Retained Counsel of Taggat Industries Inc. until his mayors, provincial board members and councilors) are
appointment as Assistant Provincial Prosecutor of expressly subjected to a total or partial proscription to practice
their profession or engage in any occupation, no such
UNIVERSITY OF SANTO TOMAS
11 FACULTY OF CIVIL LAW
Legal Ethics
interdiction is made on punong barangay and the members of Philippines; I will support its Constitution and obey the
the Sangguniang Barangay. Expressio unius est exclusio laws as well as the legal orders of the duly constituted
alterius. Since they are excluded from any prohibition, the authorities therein; I will do no falsehood, nor consent
presumption is that they are allowed to practice their
to the doing of any in court; I will not wittingly nor
profession. However, he should procure prior permission or
willingly promote or sue any groundless, false or
authorization from the head of his Department, as required by
the Civil Service Regulations (Catu v. Rellosa, A.C. No. 5738, Feb. unlawful suit, or give aid nor consent to the same; I will
19, 2008). delay no man for money or malice and will conduct
myself as a lawyer according to the best of my
LAWYERS AUTHORIZED TO REPRESENT knowledge and discretion, with all good fidelity as well
THE GOVERNMENT to the courts as to my clients; and I impose upon myself
these voluntary obligations without any mental
Lawyers authorized to represent the government reservation or purpose of evasion. So help me God.
Solicitor General (Sol Gen) for the National Government, Q: An administrative complaint was filed against Atty.
and any person appointed to appear for the government Contawi for having violated his oath as a lawyer,
of the Philippines in accordance with law (RRC, Rule 138, causing him damage and prejudice. Respondent had
Sec. 33). undeniably mortgaged and sold the property of his
client without the latter's knowledge or consent,
In case of Local Government Units (LGU), they are facilitated by the use of a falsified Special Power of
represented by a legal officer which provides legal Attorney. Did respondent violate his lawyer's oath
assistance or support to the mayor or governor and when he mortgaged and sold complainant's property,
represents the LGU in all civil actions and special which was entrusted to him, without the latter's
proceedings wherein it or any of its officials are involved consent?
in an official capacity (LGC, Sec. 481).
A: Yes. Respondent disposed of complainant's property
NOTE: In criminal cases, Sol Gen steps in only when the case without his knowledge or consent, and partook of the
has already reached the Court of Appeals. While it is with the proceeds of the sale for his own benefit. Respondent's
lower courts, it is the public prosecutor which represents the established acts exhibited his unfitness and plain
government. inability to discharge the bounden duties of a member
of the legal profession. He failed to prove himself worthy
Duties of the Solicitor General of the privilege to practice law and to live up to the
exacting standards demanded of the members of the
The Solicitor General, in his discretion, may pursue any bar. It bears to stress that the practice of law is a
of the following actions: privilege given to lawyers who meet the high standards
1. Prosecute; of legal proficiency and morality. Any violation of these
2. Not to prosecute; standards exposes the lawyer to administrative liability
3. To abandon a prosecution already started; or (Brennisen v. Atty. Contawi, A.C. No. 7481, April 24,
4. To take a position adverse to the People of the 2012).
Philippines in a criminal case or to that of a
government agency or official, when he believes Importance of the lawyers oath
that justice will be served by taking a different
stand. By taking the lawyers oath, a lawyer becomes the
guardian of truth and the rule of law and an
Duty of the Solicitor General to represent one party indispensable instrument in the fair and impartial
whereby two government agencies are in conflict administration of justice. Good moral character includes,
at least, common honesty. Deception and other
It is incumbent upon the Solicitor General to present to fraudulent acts are not merely unacceptable practices
the court what he considers as would legally uphold the that are disgraceful and dishonorable; they reveal a
best interest of the government. The other government basic moral flaw (Olbes v. Deciembre, A.C. No. 5365, Apr.
agency adversely affected, if it still believes in the merits 27, 2005).
of its case, may appear on its own behalf through its
legal officer or representative. NOTE: The lawyers oath is not a mere ceremony or formality
for practicing law to be forgotten afterwards nor is it mere
LAWYERS OATH words, drift and hollow, but a sacred trust that every lawyer
must uphold and keep inviolable at all times.
I, (name) , of (place of birth) do solemnly swear that
I will maintain allegiance to the Republic of the
UNIVERSITY OF SANTO TOMAS
2014 GOLDEN NOTES
12
DUTIES AND RESPONSIBILITIES OF A LAWYER
DUTIES AND RESPONSIBILITIES causes confided to him, such means only as are
OF A LAWYER consistent with truth and honor, and never
seek to mislead the judge or any judicial officer
Four-fold duty of a lawyer by an artifice or false statement of fact or law;
6. To maintain inviolate the Confidence and at
1. Public/Society He must not undertake any action every peril to himself, to preserve the secrets
which violates his responsibility to the society as a in connection with his client and to accept no
whole, he must be an example in the community compensation in connection with his clients
for his uprightness as a member of the society. business except from him or with his
The lawyer must be ready to render legal aid, knowledge and approval;
foster legal reforms, be guardian of due process, 7. To abstain from all Offensive personality and to
and aware of his special role in the solution of advance no fact prejudicial to the honor and
special problems and be always ready to lend reputation of a party or witness unless
assistance in the study and solution of social required by the justice of the cause with which
problems (CPR, Canon 1-6). he is charged;
2. Bar/Legal Profession Observe candor, fairness, 8. Never to Reject, for any consideration personal
courtesy and truthfulness in his conduct towards to himself, the cause of the defenseless or
other lawyers, avoid encroachment in the oppressed; and
business of other lawyers and uphold the honor of 9. In the Defense of a person accused of a crime,
the profession (CPR, Canon 7-9). by all fair and honorable means, regardless of
3. Courts A lawyer must maintain towards the his personal opinion as to the guilt of the
court a respectful attitude, defend against unjust accused, to present every defense that the law
criticisms, uphold the courts authority and permits to the end that no person may be
dignity, obey court orders and processes, assists deprived of life, liberty, but by due process of
in the administration of justice (CPR, Canon 10- law (RRC, Rule 138, Sec. 20).
13).
4. Clients The lawyer owes entire devotion to the Privileges of a lawyer (PSP-IS-12)
interest of his client, warm and zeal in the
maintenance of the defense of his rights and 1. To Practice law during good behavior before any
exertion of utmost learning ability to the end that judicial, quasi-judicial, or administrative agency;
nothing be taken or withheld from his client 2. First one to Sit in judgment on every case, to set
except in accordance with law. He owes a duty of the judicial machinery in motion;
competent and zealous representation to the 3. Enjoys the Presumption of regularity in the
client, and should preserve his clients secrets, discharge of his duty;
preserve his funds and property and avoid 4. He is Immune, in the performance of his
conflicts of interest (CPR, Canon 14- 22). obligations to his client, from liability to third
persons, insofar as he does not materially depart
Duties of attorneys under the Rules of Court (2006 from his character as a quasi-judicial officer;
Bar Question) 5. His Statements, if relevant, pertinent or material
to the subject of judicial inquiry are absolutely
The following are the duties of an attorney under the privileged regardless of their defamatory tenor
Rules of Court (ADA- RECORD): and of the presence of malice;
1. To maintain Allegiance to the Republic of the 6. 1st grade civil service eligibility for any position in
Philippines and to support the Constitution and the classified service in the government the duties
obey the laws of the Philippines; of which require knowledge of law; and
2. Not to encourage either the commencement 7. 2nd grade civil service eligibility for any other
or the continuance of an action or proceeding, governmental position, which does not prescribe
or Delay any mans cause, from any corrupt proficiency in law as a qualification.
motive or interest;
3. To counsel and maintain such Actions or CANONS OF PROFESSIONAL RESPONSIBILITY
proceedings only as appear to him to be just,
and such defenses only as he believes to be CHAPTER 1
honestly debatable under the law; LAWYER AND SOCIETY
4. To observe and maintain the Respect due to Canons 1-6
the courts of justice and judicial officers; 1. Uphold the Constitution and obey the laws of the
5. To Employ, for the purpose of maintaining the land and legal processes
2. Make legal services available in an efficient and First and most important duty of a lawyer
convenient manner
3. Use of true, honest, fair, dignified and objective The first and most important duty of a lawyer is his
information in making known legal services duty to the court. The lawyer is an officer of the court
4. Participate in the improvement of the legal who sets the judicial machinery with the main mission
system of assisting the court in the administration of justice.
5. Keep abreast of legal development and His public duties take precedence over his private
participate in continuing legal education program duties.
and assist in disseminating information regarding
the law and jurisprudence Q: After representing Lenie in an important lawsuit
6. Applicability of the CPR to lawyers in the from 1992 to 1995, Atty. Jennifer lost touch of her
government service client. Ten years later in 2005, Evelyn asked Atty.
Jennifer to represent her in an action against Lenie.
CHAPTER 2 Such action involved certain facts, some confidential,
THE LAWYER AND THE LEGAL PROFESSION to which Atty. Jennifer was privy because she
Canons 7-9 handled Lenie's old case. Can Atty. Jennifer act as
7. At all times uphold integrity and dignity of the counsel for Evelyn? (2011 Bar Question)
profession and support the activities of the IBP
8. Conduct himself with courtesy, fairness and A: No. A lawyer shall preserve the confidences or
candor toward his colleagues and avoid harassing secrets of his client even after the attorney-client
tactics against opposing counsel relation is terminated. He shall not reveal the
9. Not to directly or indirectly assist in the confidence or secrets of his client except upon the
unauthorized practice of law instances provided for by the rules (CPR, Canon 21,
Rule 21.01).
CHAPTER 3
THE LAWYER AND THE COURTS DUTIES AND RESPONSIBILITIES OF A
Canons 10-13 LAWYER TO SOCIETY
10. Owes candor, fairness and good faith to the court
11. Observe and maintain the respect due to the
courts and judicial officers and insist in similar Canon 1
conduct A lawyer shall uphold the Constitution, obey the
12. Duty to assist in the speedy and efficient laws of the land and promote respect for law and
administration of justice legal processes.
13. Rely upon the merits of his cause, refrain from any
impropriety which tends to influence courts, or Two-fold duty under Canon 1
give the appearance of influencing the courts
1. Obey the laws and the legal processes
CHAPTER 4 2. Inspire others to maintain respect and obedience
THE LAWYER AND THE CLIENT thereto.
Canons 14-22
14. Not to refuse his services to the needy NOTE: The portion of Canon 1, which calls for lawyers to
15. Observe candor, fairness and loyalty in all his promote respect for law and for legal processes, is a call to
uphold the Rule of Law (Funa, 2009).
dealings and transactions with clients
16. Hold in trust all the moneys and property of his
Concept of Rule of Law
client that may come to his possession
17. Owes fidelity to clients cause and be mindful of
The supremacy of the law provides that decisions
the trust and confidence reposed in him
should be made by the application of known legal
18. Serve client with competence and diligence
principles or laws without the intervention of
19. Represent client with zeal and within the bounds
discretion in their application (Blacks Law Dictionary).
of law
20. Charge only fair and reasonable fees
NOTE: A lawyers oath to uphold the cause of justice is
21. Preserve the confidence and secrets of client even superior to his duty to his client; its primacy is indisputable
after the attorney-client relation is terminated (Cobb-Perez v. Lantin, No. L-22320, July 29, 1968).
22. Withdraw services only for good cause and upon
notice Q: Peter Donton filed a complaint against Atty.
Tansingco and others, as the notary public who
notarized the Occupancy Agreement, for estafa thru Rule 1.01, Canon 1,
falsification of public document. Atty. Tansingco in A lawyer shall not engage in unlawful, dishonest,
his complaint stated that he prepared and notarized immoral and deceitful conduct.
the Occupancy Agreement at the request of Mr. Stier,
an owner and long-time resident of a real property Definitions:
located at Cubao, Quezon City. Since Mr. Stier is a U.S.
Citizen and thereby disqualified to own real property 1. Deceitful conduct
in his name, he agreed that the property be
transferred in the name of Mr. Donton, a Filipino. An act that has the proclivity for fraudulent and
Donton averred that Atty. Tansingcos act of deceptive misrepresentation, artifice or device that is
preparing the Occupancy Agreement, despite used upon another who is ignorant of the fact, to the
knowledge that Stier is a foreign national, constitutes prejudice and damage of the party imposed upon.
serious misconduct and is a deliberate violation of (CPR Annotated, PhilJA)
the Code. Donton prayed that Atty. Tansingco be
disbarred. Is Atty. Tansingco guilty of serious 2. Unlawful conduct
misconduct?
A transgression of any provision of law, which need
A: Yes. Atty. Tansingco is liable for violation of Canon not be a penal law. The presence of evil intent on the
1 and Rule 1.02 of the Code. A lawyer should not part of the lawyer is not essential in order to bring his
render any service or give advice to any client, which act or omission within the terms of this Rule.
will involve defiance of the laws which he is bound to
uphold and obey. Atty. Tansingco had sworn to uphold 3. Immoral conduct
the Constitution. Thus, he violated his oath and the
Code when he prepared and notarized the Occupancy A conduct which is willful, flagrant, or shameless, and
Agreement to evade the law against foreign ownership which shows a moral indifference to the opinion of the
of lands. Atty. Tansingco used his knowledge of the law good and respectable members of the community. To
to achieve an unlawful end. Such an act amounts to warrant disciplinary action, the act must not only be
malpractice in his office, for which he may be merely immoral but GROSSLY IMMORAL.
suspended (Donton v. Atty. Tansingco, A.C. No. 6057,
June 27, 2006). NOTE: Grossly immoral conduct is one that is so corrupt
and false as to constitute a criminal act or so
Q: Prosecutor Coronel entered his appearance on unprincipled or disgraceful as to be reprehensible to a
behalf of the State before a Family Court in a case for high degree (Figueroa v. Barranco, SBC Case No. 519,
declaration of nullity of marriage, but he failed to July 31, 1997).
appear in all the subsequent proceedings. When
required by the Department of Justice to explain, he Instances of gross immorality and the resulting
argued that the parties in the case were ably consequences
represented by their respective counsels and that his
time would be better employed in more substantial 1. Abandonment of wife and cohabiting with
prosecutorial functions, such as investigations, another woman. DISBARRED (Obusan v. Obusan,
inquests and appearances in court hearings. Is Jr., Adm. Case No. 1392, Apr. 2, 1984).
Atty. Coronels explanation tenable? (2006 Bar 2. A lawyer who had carnal knowledge with a
Question) woman through a promise of marriage which he
did not fulfill. DISBARRED (In re: Disbarment of
A: Atty. Coronels explanation is not tenable. The role Armando Puno, A.C. No. 389, Feb. 28, 1967).
of the States lawyer in nullification of marriage cases 3. Seduction of a woman who is the niece of a
is that of protector of the institution of marriage (Art married woman with whom respondent lawyer
48, FC). The task of protecting marriage as an had an adulterous relation. DISBARRED (Royong v.
inviolable social institution requires vigilant and Oblena, A.C. No. 376, Apr. 30, 1963).
zealous participation and not mere pro forma 4. Lawyer arranging marriage of his son to a woman
compliance (Malcampo-Sin v. Sin, G.R. No. 137590, with whom the lawyer had illicit relations.
Mar. 26, 2001). This role could not be left to the DISBARRED (Mortel v. Aspiras, A.M. No. 145, Dec.
private counsels who have been engaged to protect 28, 1956).
the private interest of the parties. 5. Lawyer inveigling a woman into believing that
they have been married civilly to satisfy his carnal
desires. DISBARRED (Terre v. Terre, A.M. No. 2349,
July 3, 1992).
UNIVERSITY OF SANTO TOMAS
15 FACULTY OF CIVIL LAW
Legal Ethics
6. Lawyer taking advantage of his position as violated Canon 1 of the Code of Professional
chairman of the college of medicine and asked a Responsibility?
lady student to go with him to Manila where he
had carnal knowledge of her under threat that if A: Yes. Atty. Velasquez act of converting his secretary
she refused, she would flunk in all her subjects. into a mistress is grossly immoral which no civilized
DISBARRED (Delos Reyes v. Aznar, A.M. No. 1334, society in the world can countenance. The subsequent
Nov. 28, 1989). detention and torture of the complainant is gross
7. Bigamy perpetrated by the lawyer. DISQUALIFIED misconduct only a beast may be able to do. Certainly,
FROM ADMISSION TO THE BAR (Royong vs. the Atty. Velasquez had violated Canon 1 of the Code
Oblena, A.C. No. 376, Apr. 30, 1963). of Professional Responsibility.
8. Concubinage coupled with failure to support
illegitimate children. SUSPENDED INDEFINITELY When a lawyers moral character is assailed, such that
(Laguitan v. Tinio, A.M. No. 3049, Dec. 4, 1989). his right to continue practicing his cherished
9. Maintaining adulterous relationship with a profession is imperiled, it behooves him to meet the
married woman. SUSPENDED INDEFINITELY charges squarely and present evidence, to the
(Cordova v. Cordova, A.M. No. 3249, Nov. 29, satisfaction of the investigating body and this Court,
1989). that he is morally fit to keep his name in the Roll of
10. A retired judge who penned a decision 7 months Attorneys. Atty. Velasquez has not discharged the
after he retired, antedating the decision and burden (Mecaral v. Velasquez, A.C. No. 8392, June 29,
forcing his former court staff to include it in the 2010).
expediente of the case. DISBARRED (Radjaie v.
Alovera, A.C. No. 4748, Aug. 4, 2000). Q: An administrative complaint for disbarment
11. Forging a Special Power of Attorney. SUSPENDED against Atty. Iris was filed for allegedly carrying an
FOR 3 YEARS (Rural Bank of Silay, Inc. v. Pilla, A.C. immoral relationship with Carlos, husband of
No. 3637, Jan. 24, 2001). complainant Leslie. Atty. Iris contended that her
12. Attempting to engage in an opium deal relationship with Carlos is licit because they
SUSPENDED FOR 1 YEAR (Piatt v. Abordo, 58 Phil. were married. And when she discovered Carlos true
350, Sept. 1, 1933). civil status, she cut off all her ties with him. Is Atty.
13. Facilitating the travel of a person to the U.S. using Iris guilty of committing gross immoral conduct
spurious travel documents. DISBARRED warranting her disbarment?
(Sebastian v. Calis, A.C. No. 5118, Sept. 9, 1999).
A: No, her relationship with Carlos, clothed as it was
Q: Atty. Danilo Velasquez was charged before IBP with what Atty. Iris believed was a valid marriage,
Committee on Bar Discipline with Gross Misconduct cannot be considered immoral. Immorality connotes
and Gross Immoral Conduct by complainant Mecaral. conduct that shows indifference to the moral norms of
Complainant Mecaral was his secretary and she the community. Moreover for such conduct to warrant
became his lover and common-law wife. Atty. disciplinary action, the same must be grossly
Velasquez then brought her to the mountainous immoral, that is it must be so corrupt and false as to
Upper San Agustin in Caibiran, Biliran where he left constitute a criminal act or so unprincipled as to be
her with a religious group known as the Faith Healers reprehensible to a high degree. Atty. Iris act of
Association of the Philippines, of which he was the immediately distancing herself from Carlos upon
leader. Although he visited her daily, his visits discovering his true civil status belies that alleged
became scarce, prompting her to return home to moral indifference and proves that she had no
Naval, Biliran. Furious, Atty. Velasquez brought her intention of flaunting the law and the high moral
back to San Agustin where, on his instruction, his standard of the legal profession (Ui v. Atty. Bonifacio,
followers tortured, brainwashed and injected her A.C. No. 3319, June 8, 2000).
with drugs. When she tried to escape, the members
of the group tied her spread-eagled to a bed. Made Acts NOT constituting gross immorality
to wear only a T- shirt and diapers and fed stale food,
she was guarded 24 hours a day by the women 1. Stealing a kiss from a client (Advincula v.
members. Her mother sought the help of the Macabata, A.C. No. 7204, Mar. 7, 2007).
Provincial Social Welfare Department which 2. Live-in relationship involving two unmarried
immediately dispatched two women volunteers to persons.
rescue her. The religious group refused to release her 3. Failure to pay a loan
without the instruction of Atty. Velasquez. Is Atty.
Velasquez guilty of gross immoral conduct and GR: A lawyer may not be disciplined for failure to
pay a loan. The proper remedy is the filing of an on and devoid of any deceit on the part of the former, is
action for collection of a sum of money in regular neither so corrupt nor so unprincipled as to warrant the
courts (Toledo v. Abalos, A.C. No. 5141, Sept. 29, imposition of disciplinary sanction against him, even if as a
result of such relationship a child was born out of wedlock.
1999).
XPN: A deliberate failure to pay just debts and Morality v. Immoral conduct
the issuance of worthless checks (Lao v.
Medel, A.C. No. 5916, July 1, 2003). MORALITY IMMORAL CONDUCT
Morality as understood Immoral conduct has been
Having incurred just debts, a lawyer has the moral in law is a human defined as that conduct
duty and legal responsibility to settle them when standard based on which is willful, flagrant, or
they become due. He should comply with his just natural moral law shameless and which
contractual obligations, act fairly and adhere to which is embodied in shows a moral indifference
high ethical standards to preserve the courts mans conscience and to the opinion of the good
integrity, since he is an employee thereof (Cham v. which guides him to do and respectable members
Paita-Moya, A.C. No.7494, June 27, 2008). good and avoid evil. of the community (Arciga
v. Maniwang, A.M. No.
NOTE: Just debts include unpaid rentals, electric bills, 1608, Aug. 14, 1981).
claims adjudicated by a court of law, and claims the
existence and justness which are admitted by the debtor Q: Catherine and Atty. Rongcal maintained an illicit
(Cham v. Paita-Moya, A.C. No.7494, June 27, 2008). affair. Catherine filed a case for disbarment against
Atty. Rongcal based on gross immoral conduct
Q: Patricia and Simeon were teen sweethearts. It was alleging that he misrepresented himself to be single
after their child was born that Simeon first promised when he was in fact married, and due to the false
he would marry her after he passes the bar pretenses she succumbed to his sexual advances. Will
examinations. Their relationship continued and her petition prosper?
Simeon allegedly made more than twenty or thirty
promises of marriage. Patricia learned that Simeon A: Yes. Good moral character is a continuing condition
married another woman. Meanwhile, Simeon in a privilege of law practice. The mere fact of sexual
successfully passed the 1970 bar examinations after relation between two unmarried adults is not
four attempts. But before he could take his oath, sufficient to warrant administrative sanction for such
Patricia filed a petition to disqualify Simeon to take illicit behavior, it is with respect to betrayal of the
the Lawyers Oath on the ground of gross marital vow of fidelity. Atty. Rongcal is guilty of
immoral conduct. Does the act of Simeon in engaging immorality in violation of Rule 1.01 that a lawyer
in premarital relations with Patricia and making should not engage in unlawful, dishonest, immoral or
promises to marry her constitute gross immoral deceitful conduct. But his remorse over his indiscretion
conduct? and the fact of ending the illicit relationship mitigates
the liability. Hence a penalty of imposing a fine will
A: The SC ruled that the facts do not constitute gross suffice with a warning that the same will be dealt with
immoral conduct warranting a permanent exclusion of more severely (Vitug v. Rongcal, A.C. No. 6313,
Simeon from the legal profession. His engaging in September 7, 2006).
premarital sexual relations with complainant and
promises to marry suggests a doubtful moral character NOTE: Any errant behavior on the part of a lawyer, be it in
on his part but the same does not constitute grossly his public or private activities, which tends to show him
immoral conduct. The Court has held that to justify deficient in moral character, honesty, probity or good
suspension or disbarment the act complained of must demeanor, is sufficient to warrant his suspension or
not only be immoral, but grossly immoral. A grossly disbarment (Tiong vs. Atty. Florendo, A.C. No. 4428, Dec. 12,
immoral act is one that is so corrupt and false as to 2011).
constitute a criminal act or so unprincipled or
disgraceful as to be reprehensible to a high degree. It Moral turpitude
is willful, flagrant, or shameless act, which shows a
moral indifference to the opinion of respectable Moral turpitude imports an act of baseness, vileness
members of the community (Figueroa v. Barranco, Jr., or depravity in the duties which one person owes to
G.R. No. 97369, July 31, 1997). another or to society in general which is contrary to
the usual accepted and customary rule of right and
NOTE: Mere intimacy between a man and woman, both of duty which a person should follow. The question as to
whom possess no impediment to marry, voluntarily carried whether an offense involves moral turpitude is for the
Supreme Court to decide. from each other and either one could have a live-in
partner with full consent of the other, is contrary to
Examples of acts involving moral turpitude law and morals. The ratification by a notary public who
is a lawyer of such illegal or immoral contract or
1. Conviction of estafa and/or BP 22. DISBARRED (In document constitutes malpractice or gross
the Matter of Disbarment Proceedings v. Narciso misconduct in office. He should at least refrain from its
N. Jaramillo, A.C. No. 229, Apr. 30, 1957). consummation (In Re: Santiago, A.C. No. 923, June 21,
2. Conviction of bribery/ attempted bribery. 1940; Panganiban v. Borromeo, 58 Phil. 367; In Re:
DISBARRED (In Re: Dalmacio De los Angeles, A.C. Bucana, A.C. No. 1637, July 6, 1976).
No. L-350, Aug. 7,1959; 7 C.J.S., p. 736; 5 Am. Jur.
p. 428). Rule 1.03, Canon 1, CPR
3. Conviction of murder. DISBARRED (In Re: A lawyer shall not, for any corrupt motive or
Disbarment Proceedings Against Atty. Diosdado interest, encourage any suit or proceeding or delay
Q. Gutierrez, A.C. No. L- 363, July 31, 1962). any mans cause.
4. Conviction of homicide. DISBARRED (Soriano v.
Dizon, A.C. No. 6792, Jan. 25, 2006). The rule is aimed against the practice of
5. Conviction of illegal marriage before admission to barratry, stirring up litigation and ambulance
the bar. DISQUALIFIED FROM BEING ADMITTED chasing.
TO THE BAR (Villasanta v. Peralta, 101 Phil.313,
Apr. 30, 1957). Crime of maintenance
6. Conviction of falsification of public document.
REMOVED FROM HIS OFFICE/NAME ERASED A lawyer owes to society and to the court the duty not
FROM ROLL OF ATTORNEYS (Ledesma de Jesus- to stir up litigation.
Paras v. Quinciano Vailoces, A.C. No. 439, Apr. 12,
1961). Barratry v. Ambulance chasing (1993 Bar Question)
7. Conviction of estafa through falsification of public
document. DISBARRED (Villanueva v. Sta. Ana, BARRATRY AMBULANCE CHASING
CBD Case No. 251, July 11, 1995). An offense of frequently An act of chasing victims
8. Conviction of abduction. SUSPENDED FROM exciting and stirring up of accidents for the
OFFICE FOR 1 YEAR (In Re Basa, 41 Phil. 275, Dec. quarrels and suits, either purpose of talking to the
7, 1920). at law or otherwise; said victims (or relatives)
9. Conviction of concubinage. SUSPENDED FROM lawyers act of fomenting and offering his legal
OFFICE FOR 1 YEAR (In re Isada, 60 Phil. 915, Nov. suits among individuals services for the filing of a
16, 1934). and offering his legal case against the person(s)
10. Conviction of smuggling. DISBARRED (In re Rovero, services to one of them. who caused the
A.C. No. 126, Oct. 24, 1952). Barratry is not a crime accident(s). It has
under the Philippine laws. spawned a number of
Rule 1.02, Canon 1 However, it is proscribed recognized evils such as
A lawyer shall not counsel or abet activities aimed at by the rules of legal (FSMD):
defiance of the law or at lessening confidence in the ethics.
legal system. (1994, 1998 Bar Questions) 1. Fomenting of
litigation with
Q: Atty. Asilo, a lawyer and a notary public, notarized resulting burdens on
a document already prepared by spouses Roger and the courts and the
Luisa when they approached him. It is stated in the public;
document that Roger and Luisa formally agreed to 2. Subordination of
live separately from each other and either one can perjury;
have a live-in partner with full consent of the other. 3. Mulcting of innocent
What is the liability of Atty. Asilo, if any? (1998 Bar persons by
Question) judgments, upon
manufactured
A: Atty. Asilo may be held administratively liable for causes of action; and
violating Rule 1.02 of the CPR - a lawyer shall not 4. Defrauding of
counsel or abet activities aimed at defiance of the law injured persons
or at lessening confidence in the legal system. An having proper causes
agreement between two spouses to live separately of action but
The inability to pay for legal services is not a valid reason to Salient Features of RA 9999
refuse acceptance of a case. This is because the profession is
a branch of the administration of justice and not a mere
money-getting trade. (CPR Annotated, PhilJA) 1. The law will allow indigent litigants to acquire the
services of renowned lawyers and law firms for
AN ACT PROVIDING A MECHANISM FOR FREE LEGAL free.
ASSISTANCE AND FOR OTHER PURPOSES 2. In exchange for the services rendered by the
(RA No. 9999) lawyer or the law firm, they will be given tax
FEBRUARY 23, 2010 incentives equivalent to the cost of the services
rendered to the indigent litigant.
Purpose of RA No. 9999 (Free Legal Assistance Act of 3. It will help relieve the Public Attorneys Office
2010) (PAO) of its numerous caseloads involving
indigent litigants who shall be referred to lawyers
1. Encourage lawyers and professional partnerships or law firms in the private practice.
to provide free legal assistance. 4. It should entice renowned and distinguished firms
2. Solicit the assistance of lawyers and professional and lawyers in the practice as their services shall
partnerships in the private practice of law in still be compensated commensurately through
providing quality legal assistance to indigent the tax incentives.
litigants through a system of tax incentives.
NOTE: The DOJ, in cooperation with the Philippine
3. Provide relief to the Public Attorneys Office (PAO)
Information Agency (PIA), is hereby mandated to conduct an
and other associations accredited by the Supreme annual Information, Education and Communication (IEC)
Court from the numerous cases it handles. campaign in order to inform the lawyers of the procedures
4. Provide indigent litigants the opportunity to and guidelines in availing tax deductions and inform the
acquire the services of the distinguished law firms general public that a free legal assistance to those who
and legal practitioners of the country for free. cannot afford counsel is being provided by the State (Sec. 6,
5. Ensure that the right of every individual to RA 9999).
counsel, as mandated in the Constitution, is
protected and observed. Rule 2.02, Canon 2
Services available In such cases, even if the lawyer does not accept a
case, he shall not refuse to render legal advice to the
Public Attorney's Office (PAO), Department of Justice person concerned if only to the extent
(DOJ) and other legal aid clinics accredited by the necessary to safeguard the latters rights.
Supreme Court shall refer pauper litigants to identified
Examples of indirect solicitation of his businessman friend indicates his law office and
his legal specialty, the law office is located
1. Writing and selling for publication articles of in his friends store. Decide (2001 Bar Question)
general nature on legal subjects
2. Writing unsolicited article on a legal subject A: This appears to be a circumvention of the
prohibition on improper advertising. There is no valid
NOTE: If engaged in another profession or occupation reason why the lawyers businessman friend should be
concurrently with the practice of law, the lawyer shall make handing out calling cards which contains the lawyers
clear to his client whether he is acting as a lawyer or in law office and legal specialty, even if his office is
another capacity.
located in his friends store. What makes it more
objectionable is the statement of his supposed legal
Q: Atty. Dulcinea writes a regular column in a specialty.
newspaper of general circulation and articles on
unforgettable legal stories in a leading magazine. Her
Rule 2.04, Canon 2
by-line always includes the name of her firm where
A lawyer shall not charge rates lower than those
she is a name partner. Would you consider this as
customarily prescribed unless the circumstances so
improper advertising? Explain your answer.
warrant (1997, 2005 Bar Questions)
A: Atty. Dulcineas by-line including the firm name
where she belongs is improper because it is an indirect GR: A lawyer shall not charge rates lower than those
way of solicitation or is an advertisement of the law customarily prescribed.
firm.
XPN: When clients are relatives, co-lawyers, or are
Q: A paid advertisement appeared in the July 5, 2000 indigents. These are the valid justifications.
issue of Philippine Daily Inquirer, which reads:
NOTE: What the rule prohibits is a competition in the matter
"ANNULMENT' OF MARRIAGE Specialist 532-
of charging professional fees for the purpose of attracting
4333/521-2667." Similar advertisements were clients in favor of the lawyer who offers lower rates. The rule
published in the August 2 and 6, 2000 issues of the does not prohibit a lawyer from charging a reduced fee or
Manila Bulletin and August 5, 2000 issue of The none at all to an indigent (Comments of the IBP Committee).
Philippine Star.
TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE
Does the appearance of the following: "ANNULMENT' INFORMATION ON LEGAL SERVICES
OF MARRIAGE Specialist 532- 4333/521-2667", in a
newspaper, amount to advertising and solicitation of
legal services prohibited by the Code of Professional Canon 3
Responsibility and the Rules of Court? A lawyer in making known his legal services shall
use only true, honest, fair, dignified and objective
A: Yes. It has been repeatedly stressed that the information or statement of facts
practice of law is not a business. It is a profession in
which duty to public service, not money, is the primary
consideration. Lawyering is not primarily meant to be The practice of law is not a trade like the sale of
a money-making venture, and law advocacy is not a commodities to the general public where "the usual
capital that necessarily yields profits. The gaining of a exaggerations in trade, when the proper party had the
livelihood should be a secondary consideration. The opportunity to know the facts, are not in
duty to public service and to the administration of themselves fraudulent (NCC, Art. 1340).
justice should be the primary consideration of lawyers,
who must subordinate their personal interests or what Q: Atty. E has a daily 10-minute radio program billed
they owe to themselves (Atty. Khan Jr. v. Atty. Simbillo, as a Court of Common Troubles. The program is
A.C. No. 5299, Aug. 19, 2003). advertised by the radio station as a public service
feature for those who seek but cannot afford to pay
NOTE: The rule against solicitation applies to a lawyer who for legal advice. Its sponsors include a food
offers monetary reward to those who can serve as processing company and a detergent manufacturing
witness/es in the case, which he is handling (CPR Annotated, firm which share with the radio station the monthly
PhilJA). remuneration of Atty. E. Is there any impropriety in
Atty. Es role under the above arrangement? (1997
Q: Facing disciplinary charges for advertising as a Bar Question)
lawyer, Atty. A argues that although the calling card
Any false, exaggerating or untrue claims about his The rationale of this rule is to prevent the law firm or
qualification are clearly unethical. Example of this is partners from making use of the name of the public
when a lawyer makes representation to a prospective official to attract business and to avoid suspicion of
client that he has never lost a single case in his entire undue influence.
career. Certainly, this is impossible for the best lawyers
in the country have experienced losing cases Q: Samonte alleges that when she went to Branch
(Antiquiera, 1992). 220, RTC, Quezon City, to inquire about the reason for
the issuance of the temporary restraining order, Atty.
Examples of advertisements considered as deceptive Rolando Gatdula (Clerk of Court) blamed her lawyer
for writing the wrong address in the complaint for
1. Misstatements of fact ejectment, and told her that if she wanted the
2. Suggestions that the ingenuity or prior record of a execution to proceed, she should change her lawyer
lawyer rather than the justice of the claim are the and retain the law office of Atty. Gatdula, at the same
principal factors likely to determine the result time giving his calling card with the name "Baligod,
3. Inclusion of information irrelevant on selecting a Gatdula, Tacardon, Dimailig and Celera" with office at
lawyer Rm. 220 Mariwasa Bldg., 717 Aurora Blvd., Cubao,
4. Representations concerning the quality of service, Quezon City, otherwise she will not be able to eject
which cannot be measured or verified (CPR the defendant Dave Knope. Samonte told Atty.
Annotated, PhilJA). Gatdula that she could not decide because she was
only representing her sister. To her consternation,
Rule 3.02, Canon 3 the RTC Branch 220 issued an order granting the
In the choice of a firm name, no false, misleading or preliminary injunction as threatened by Atty. Gatdula
assumed name shall be used. The continued use of despite the fact that the MTC, Branch 37 had issued
the name of a deceased partner is permissible an Order directing the execution of the Decision in
provided that the firm indicates in all its Civil Case No. 37-14552.
communications that said partner is deceased.
(1994, 1996, 2001 Bar Questions) Samonte filed an administrative case for misconduct,
alleging that Atty. Gatdula is engaged in the private
Rationale behind the rule that the name of deceased practice of law. Did Atty. Gatdula violate the Code of
partner may still be used Conduct and Ethical Standards for the Public Officials
and Employees?
All the partners have, by their joint and several efforts
over a period of years contributed to the good will A: Yes. Samonte by her failure to appear at the
attached to the firm name. In the case of a firm having hearings, failed to substantiate her allegation that it
widespread connections, this good will is disturbed by was Atty. Gatdula who gave her calling card "Baligod,
a change in firm name every time a partner dies, and Gatdula, Tacardon, Dimailig and Celera Law Offices"
that reflects a loss in some degree of the good will to and that he tried to convince her to change counsels.
the building up of which the surviving partners have However, while Atty. Gatdula vehemently denies
contributed their time, skill and labor through a period Samonte's allegations, he does not deny that his name
of years (CPR Annotated, PhilJA). appears on the calling card attached to the complaint,
which admittedly came into the hands of Samonte.
NOTE: No name not belonging to any of the partners or
associates may be used in the firm name for any purpose. The card clearly gives the impression that he is
connected with the said law firm. The Consideration 8-1, 1978, Model Code of Professional
inclusion/retention of his name in the professional Responsibility, American Bar Association).
card constitutes an act of solicitation which violates
Section 7 sub-par. (b) (2) of R.A. 6713, otherwise E.g.:
known as "Code of Conduct and Ethical Standards for 1. Presenting position papers or resolutions for the
the Public Officials and Employees" which declares it introduction of pertinent bills in Congress; or
unlawful for a public official or employee to, among 2. Petitions with the SC for the amendment of the
others: (2) Engage in the private practice of their Rules of Court.
profession unless authorized by the Constitution or
law, provided that such practice will not conflict or Endorsement by a lawyer
tend to conflict with official functions (Samonte v.
Gatdula, A.M. No. 99-1292, Feb. 26, 1999). A lawyer may, with propriety, endorse a candidate and
seek that endorsement from other lawyers. A lawyer
Rule 3.04, Canon 3 should not use or attempt to use the power or prestige
A lawyer shall not pay or give anything of value to of the judicial office to secure such endorsement. On
representatives of the mass media in anticipation of, the other hand, the lawyer whose endorsement is
or in return for, publicity to attract legal business. sought should have the courage and moral stamina to
refuse the request for endorsement if he believes the
The reason for this rule is to prevent some lawyers candidate lacks the essential qualifications for the
from gaining an unfair advantage over others through office or believes the opposing candidate is better
the use of gimmickry, press agentry or other artificial qualified (ABA Opinion 189 (1938); (Funa, 2009).
means.
PARTICIPATION IN THE LEGAL
Q: Fiscal Salva conducted the investigation of the case EDUCATION PROGRAM
concerning the killing of Monroy, in the session hall
of the Municipal Court of Pasay City to accommodate Canon 5
the public and members of the press. Also, he told the A lawyer shall keep abreast of legal
press that if you want to ask question, I am allowing developments, participate in continuing legal
you to do so and the questions will be reproduced as education programs, support efforts to achieve
my own. Is the act of the fiscal in sensationalizing high standards in law schools as well as in the
the case unethical? practical training of law students and assist in
disseminating information regarding the law and
A: Yes. Fiscal Salva should be publicly reprehended jurisprudence.
and censured for the uncalled and wide publicity and
sensationalism that he had given to and allowed in
connection with his investigation, whatever be his This duty carries with it the obligation to be well
motive, which is considered and found to be contempt informed of the existing laws, and to keep abreast with
of court (Cruz v Salva, G.R. No. L-12871, July 25, 1959). legal developments, recent enactment and
jurisprudence. It is imperative that they be conversant
PARTICIPATION IN THE IMPROVEMENT AND with the basic legal principles. Unless they faithfully
REFORMS IN THE LEGAL SYSTEM comply with such duty, they may not be able to
discharge competently and diligently their obligations
as members of the Bar. Worse, they may become
Canon 4
susceptible to committing mistakes (Dulalai Jr. v. Cruz,
A lawyer shall participate in the development of
A.C. No. 6854, Apr. 27, 2007, citing Santiago v.
the legal system by initiating or supporting efforts
Rafanan, A.C. No. 6252, Oct. 5, 2004).
in law reform and in the improvement of the
administration of justice.
The latest circular of the Supreme Court provides for
the mandatory attendance of all lawyers in the so-
By reason of education and experience, lawyers are called Mandatory Continuing Legal Education Program
especially qualified to recognize deficiencies in the of the IBP. For law practitioners, they have to comply
legal system and to initiate corrective measures with the 36 hours of mandatory legal education as a
therein. Thus, they should participate in proposing and pre-condition to the non-revocation of license to
supporting legislation and programs to improve the practice law (Antiquiera, 1992).
system, without regard to the general interests or
desires of clients or former clients (Ethical
Lawyers in the employ of the government should be Restriction on lawyers who are also public officials
more sensitive in the performance of their and employees during their incumbency (PERU)
professional obligations as their conduct is subject to
constant scrutiny of the public. They must NOT:
1. Engage in the Private practice of their
Rule 6.01, Canon 6 profession unless authorized by the
The primary duty of a lawyer engaged in PUBLIC Constitution or law, provided that such
PROSECUTION is not to convict but to see to it that practice will not conflict or tend to conflict
justice is done. The suppression of facts or the with their official functions;
concealment of witnesses capable of establishing the 2. Own, control, manage or accept Employment
innocence of the accused is highly reprehensible and as officer, employee, consultant, counsel,
is cause for disciplinary action (1992, 1993 Bar broker, agent, trustee or nominee in any
Questions) private enterprise regulated, supervised or
licensed by their office unless expressly
Q: From the viewpoint of legal ethics, why should it allowed by law;
be mandatory that the public prosecutor be present 3. Recommend any person to any position in a
at the trial of a criminal case despite the presence of private enterprise which has a regular or
a private prosecutor? (2001 Bar Question) pending official transaction with their office;
and
A: The public prosecutor must be present at the trial 4. Use or divulge confidential or classified
of the criminal case despite the presence of a private information officially known to them by
prosecutor in order to see to it that the interest of the reason of their office and not available to the
State is well-guarded and protected, should the public.
private prosecutor be found lacking in competence in
prosecuting the case. Moreover, the primary duty of a Rule 6.01 v. Rule 6.02
public prosecutor is not to convict but to see to it that
justice is done (Rule 6.01, CPR). A private prosecutor Unlike Rule 6.01, 6.02 is not limited to public
would be naturally interested only in the conviction of prosecutors, or public lawyers engaged principally in
the accused. criminal prosecution cases. The restriction applies
particularly to lawyers in government service, who are
Instance where a private prosecutor may appear in allowed by law to engage in private law practice, and
behalf of the State even without the presence or those who, though prohibited from engaging in the
supervision of a public prosecutor practice of law, have friends, former associates and
relatives who are in the active practice of law (CPR
All criminal actions either commenced by complaint Annotated, PhilJA).
or by information shall be prosecuted under the
direction and control of a public prosecutor. In case of
heavy work schedule of the public prosecutor or in the
UNIVERSITY OF SANTO TOMAS
25 FACULTY OF CIVIL LAW
Legal Ethics
The restriction provided under the rule covers However, this concern does not cast shadow in the
engagement or employment which means that he case at bar. The act of Mendoza in informing the
cannot accept any work or employment from anyone Central Bank on the procedure on how to liquidate the
that will involve or relate to the matter in which he GenBank is a different matter from the subject matter
intervened as a public official, except on behalf of the of the civil case which is about the sequestration of the
body or authority which he served during his public shares of Tan et al. in Allied Bank. Consequently, the
employment (CPR Annotated, PhilJA). danger that confidential official information might be
divulged is still nil, if not inexistent. To be sure, there
Q: Atty. Madrigal worked in the Supreme Court, are no inconsistent sides to be bothered about in this
under the division which handles the case of Mr. case. For there is no question that in lawyering for Tan
Roxas. Before the promulgation of the decision of the et al., Mendoza is indirectly defending the validity of
case, Atty. Madrigal resigned and started to work in the action of the Central Bank in liquidating GenBank
the law firm which handles the case of Mr. Roxas. Is and selling it later to Allied Bank. Their interests
Atty. Madrigal allowed to use the information he got coincide instead of colliding (PCGG v. Sandiganbayan,
to help in the case handled by the firm? G.R. Nos. 151809-12, Apr. 12, 2005).
A: No, such act is unethical and is violative of Rule 6.03 Adverse-interest conflict v. Congruent-interest
of the CPR. conflict
NOTE: Sec. 7(b) of R.A. 6713 prohibits former public official CONGRUENT-INTEREST
ADVERSE-INTEREST
or employee for a period of 1 year after retirement or REPRESENTATION
separation from office to practice his profession in CONFLICTS
CONFLICTS
connection with any matter before the office he used to be Adverse-interest In congruent-interest
with.
conflicts exist where representation conflict, the
the matter in which the disqualification does not
Q: Former Solicitor General Estelito Mendoza filed a
former government really involve a conflict at
petition with the CFI praying for the assistance and
lawyer represents a all, because it prohibits the
supervision of the court in the GenBanks liquidation.
client in private practice lawyer from representing a
Mendoza gave advice on the procedure to liquidate
is substantially related private practice client even
the GenBank. Subsequently, President Aquino
to the matter that the if the interests of the
established the PCGG to recover the alleged ill-gotten
lawyer dealt with while former government client
wealth of former President Marcos, his families and
employed by the and the new client are
cronies. The PCGG filed with the Sandiganbayan a
government and the entirely parallel.
complaint for reversion, reconveyance, restitution,
interests of the
accounting and damages against Tan, et al. and
government and the
issued several writs of sequestration on properties
interests of the current
they allegedly acquired. Tan, et al. were represented
and former are adverse.
by former SolGen Mendoza, who has then resumed
his private practice of law. The PCGG filed motions to NOTE: congruent-interest representation conflict, unlike
disqualify Mendoza as counsel for Tan, et al. The the adverse-interest conflict, is unique to former
motions alleged that Mendoza, as then SolGen and government lawyers.
counsel to Central Bank, actively intervened in the
liquidation of GenBank, which was subsequently DUTIES AND RESPONSIBILITIES OF A
acquired by Tan, et al. Is Rule 6.03 of the CPR LAWYER TO THE LEGAL PROFESSION
applicable to Mendoza?
Canon 7
A: No. The advice given by Mendoza on the procedure
A lawyer shall at all times uphold the integrity and
to liquidate the GenBank is not the matter
dignity of the legal profession and support the
contemplated by Rule 6.03 of the CPR.
activities of the integrated bar
ABA Formal Opinion No. 342 is clear in stressing that
UNIVERSITY OF SANTO TOMAS
2014 GOLDEN NOTES
26
DUTIES AND RESPONSIBILITIES OF A LAWYER
Integrated Bar of the Philippines nominees submitted by the Delegates from the Region,
provided that not more than one nominee shall come
It is an official national body composed of all persons from any Chapter. The President and the Executive
whose names now appear or may hereafter be Vice President, if chosen by the Governors from
included in the Roll of Attorneys of the Supreme Court outside of themselves as provided in Section 7 of this
(RRC, Sec. 1, Rule 139-A). Rule, shall ipso facto become members of the Board
(RRC, Sec. 6, Rule 139-A).
NOTE: Integrated Bar is a state-organized bar, to which every
lawyer must belong. As distinguished from bar associations Term of members of the IBP Board
organized by individual lawyers themselves, membership in
which is voluntary. It is a national organization of lawyers
Members shall hold office for a term of one year from
created on 16 January 1973 under Rule 139-A, Rules of Court,
the date of their election and until their successors
and constituted on 4 May 1973 into a body corporate by PD
No. 181. shall have been duly elected and qualified. No person
may be a Governor for more than two terms (RRC, Sec.
Integration of the Bar 6, Rule 139-A).
The Integration of the Philippine Bar means the official Principle of rotation
unification of the entire lawyer population, and this
requires membership and financial support of every Pursuant to the principle of rotation, the governorship
attorney as condition sine qua non to the practice of of a region shall rotate once in as many terms as the
law and the retention of his name in the Roll of number of chapters there are in the region, to give
Attorneys of the Supreme Court (Pineda, 1999). every chapter a chance to represent the region in the
Board of Governors. Thus, in a region composed of 5
Fundamental purposes of the IBP chapters, each chapter is entitled to the governorship
once in every 5 terms, or once every ten (10) years,
1. To elevate the standards of the legal profession; since a term is two (2) years (Atty. Magsino et al. v.
2. Improve the administration of justice; and Atty. Vinluan, A.M. No. 09-5-2-SC, December 14, 2010).
3. Enable the Bar to discharge its public
NOTE: The principle on rotation shall be strictly
responsibility more effectively (RRC, Sec. 2, Rule
implemented so that all prior elections for governor in the
139-A).
region shall be reckoned with or considered in determining
who should be the governor to be selected from the
NOTE: The Philippines is divided into 9 Regions of the different chapters to represent the region in the Board of
Integrated Bar, with a Chapter organized in every province. Governors (Bar Matter No. 586 dated May 16, 1991).
Each Chapter shall have its own local government as
provided for by uniform rules to be prescribed by the Board
Kinds of rotation
of Governors and approved by the SC (Secs. 3 and 4, Rule
139-A, RRC).
1. Rotation by pre-ordained sequence - effected by
Constitutionality of the IBP integration the observance of the sequence of the service of
the chapters in the first cycle, which is very
The practice of law is not a vested right but a privilege predictable.
clothed with public interest. Hence, it is fair and just 2. Rotation by exclusion - effected by the exclusion
that the exercise of that privilege be regulated to of a chapter who had previously served until all
assure compliance with the lawyer's public chapters have taken their turns to serve. It is not
responsibilities. Given existing bar conditions, the predictable as each chapter will have the chance
most efficient means of doing so is by integrating the to vie for the right to serve, but will have no right
Bar through a rule of court that requires all lawyers to to a re-election as it is debarred from serving
pay annual dues to the Integrated Bar (In the Matter again until the full cycle is completed (In The
of the Integration of the Bar of the Philippines, 49 SCRA Matter of the Brewing Controversies in the
22, Jan. 9, 1973). Elections of the Integrated Bar of the Philippines,
A.M. No. 09-5-2-SC, December 04, 2012).
Structure of the IBP board
NOTE: In one case, the Supreme Court held that rotation by
exclusion shall be adopted since the elections would be more
Nine Governors shall be elected by the House of
genuine as the opportunity to serve as Governor at any time
Delegates from the nine Regions on the is once again open to all chapters, unless, of course, a
representation basis of one Governor from each chapter has already served in the new cycle. While
Region. Each Governor shall be chosen from a list of predictability is not altogether avoided, as in the case where
UNIVERSITY OF SANTO TOMAS
27 FACULTY OF CIVIL LAW
Legal Ethics
only one chapter remains in the cycle, still, as previously automatically become the President for the next
noted by the Court the rotation rule should be applied in succeeding full term. The Presidency shall rotate from
harmony with, and not in derogation of, the sovereign will of year to year among all the nine Regions in such order
the electorate as expressed through the ballot. (In The
of rotation as the Board of Governors shall prescribe.
Matter of the Brewing Controversies in the Elections of the
No person shall be President or Executive Vice
Integrated Bar of the Philippines, A.M. No. 09-5-2-SC,
December 04, 2012). President of the Integrated Bar for more than one
term (RRC, Sec. 7, Rule 139-A).
Transferring to another IBP Chapter is not a ground
for disqualification to run as IBP Governor Qualifications of a Regional IBP Governor
Transferring to another IBP Chapter is not a ground for 1. He is a member in good standing of the IBP
disqualification for the post of IBP Governor as the 2. He is included in the voters list of his chapter or he
same is allowed under Section 19 of the IBP By-Laws is not disqualified by the Integration Rule, by the
with the qualification only that the transfer be made By-Laws of the Integrated Bar, or by the By-Laws
not less than three months immediately preceding any of the Chapter to which he belongs.
chapter election (Velez v. De Vera, A.C. No. 6697, July 3. He does not belong to a chapter from which a
25, 2006). regional governor has already been elected,
unless the election is the start of a new season or
Board meetings cycle.
4. He is not in the government service (In Re: Petition
The Board shall meet regularly once every three to disqualify Atty. De Vera, A.C. No. 6052, Dec. 11,
months, on such date and at such time and place as it 2003).
shall designate. A majority of all the members of the
NOTE: Moral fitness is not an explicit qualification in the IBP
Board shall constitute a quorum to do business.
by-laws.
Special meetings may be called by the President or by
five members of the Board (RRC, Sec. 6, Rule 139-A).
Vacancy occurring in the IBP presidency
IBP officers
1. In the event the President is absent or unable to
act, his duties shall be performed by the Executive
The Integrated Bar shall have a/an:
Vice President
1. President
2. In the event of the death, resignation, or removal
2. Executive Vice President who shall be chosen
of the President, the Executive Vice President
by the Governors immediately after the
shall serve as Acting President during the
latters election; either from among
remainder of the term of the office thus vacated
themselves or from other members of the
3. In the event of the death, resignation, removal or
Integrated Bar, by the vote of at least five
disability of both the President and the Executive
Governors. Each of the regional members of
Vice President, the Board of Governors shall elect
the Board shall be ex officio Vice President for
an Acting President to hold office until the next
the Region which he represents.
succeeding election or during the period of
3. Secretary
disability. (RRC, Sec. 8, Rule 139-A)
4. Treasurer
5. Such other officers and employees as may be
NOTE: Serves only the unexpired term.
required by the Board of Governors, to be
appointed by the President with the consent IBP must be apolitical
of the Board, and to hold office at the
pleasure of the Board or for such term as it No lawyer holding an elective, judicial, quasi-judicial or
may fix. Said officers and employees need not prosecutory office in the Government or any political
be members of the Integrated Bar (RRC, Sec. subdivision or instrumentality thereof shall be eligible
7, Rule 139-A). for election or appointment to any position in the
Integrated Bar or any Chapter thereof. A Delegate,
Term of office of officers Governor, officer or employee of the Integrated Bar,
or an officer or employee of any Chapter thereof shall
The President and the Executive Vice President shall be considered ipso facto resigned from his position as
hold office for a term of one year from the date of their of the moment he files his certificate of candidacy for
election and until their successors shall have duly any elective public office or accepts appointment to
qualified. The Executive Vice President shall any judicial, quasi-judicial, or prosecutory office in the
UNIVERSITY OF SANTO TOMAS
2014 GOLDEN NOTES
28
DUTIES AND RESPONSIBILITIES OF A LAWYER
Government or any political subdivision or corollary to their obligation to obey and uphold the
instrumentality thereof (RRC, Sec. 13, Rule 139-A). constitution and the laws, the duty to promote respect
for law and legal processes and to abstain activities
Prohibited acts and practices relative to the elections aimed at the defiance of the law or at lessening
of IBP officers confidence in the legal system (In Re: IBP Elections, B.M.
491, Oct. 6, 1989).
1. Distribution, except on election day, of election
campaign materials; MEMBERSHIP AND DUES
2. Distribution, on election day, of election campaign
materials other than a statement of the bio data Q: The Integrated Bar of the Philippines adopted a
of the candidate on not more than one page of a resolution recommending to the Court the removal of
legal size sheet of paper; or causing the the name Marcial A. Edillon, a duly licensed practicing
distribution of such statement to be done by attorney, from its Roll of Attorneys for stubborn
persons other than those authorized by the officer refusal to pay his membership dues to the IBP since
presiding at the elections; its constitution, notwithstanding due notice. Is
3. Campaigning for or against any candidate, while Edillon correct in his objection that the Court is
holding an elective, judicial, quasi-judicial or without power to compel him to become a member
prosecutory office in the Government or any of the IBP, hence, Sec. 1 of Rule 139-A of the Rules of
political subdivision, agency or instrumentality Court is unconstitutional for it impinges on his
thereof; constitutional right of freedom to associate (and not
4. Formation of tickets, single slates, or to associate)?
combinations of candidates as well as the
advertising thereof; and A: No. To compel a member of the Integrated Bar is
5. For the purpose of inducing or influencing a not violative of his constitutional freedom to associate.
member to withhold his vote, or to vote for or Integration does not make a lawyer a member of any
against a candidate: group of which he is not already a member. He became
a. Payment of the dues or other indebtedness of a member of the Bar when he passed the Bar
any member; Examinations. All that integration actually does is to
b. Giving of food, drink, entertainment, provide an official national organization for the well-
transportation or any article of value, or any defined but unorganized and incohesive group of
similar consideration to any person; which every lawyer is already a member.
c. Making a promise or causing an expenditure
to be made, offered or promise to any person Assuming that the questioned provision does in a
(Sec. 4, IBP By-Laws; In the Matter of the sense compel a lawyer to be a member of the
Inquiry into the 1989 Elections of the Integrated Bar, such compulsion is justified as an
Integrated Bar of the Philippines, A.M. No. exercise of the police power of the State (In the Matter
491, Oct. 6, 1989). of IBP Membership Dues Delinquency of Atty. Edillon,
A.C. No. 1928, Dec. 19, 1980).
Q: In the election of national officers of the IBP, the
Supreme Court received reports of electioneering NOTE: A lawyer does not automatically become a member
and extravagance that characterized the campaign of the IBP chapter where he resides or works after becoming
conducted by the 3 candidates (Paculdo, Nisce and a full-fledged member of the Bar. He has the discretion to
choose the IBP Chapter he wants to join (Garcia v. De Vera,
Mrs. Drilon) for President of the IBP. It is alleged that
A.C. 6052, Dec. 11, 2003).
they used government planes, give free
accommodations to voters to expensive hotels and Unless he otherwise registers his preference for a particular
there has been intervention of public officials to Chapter, a lawyer shall be considered a member of the
influence the voting. Is there a violation of the IBP by- Chapter of the province, city, political subdivision or area
laws? Is there sufficient ground for the Supreme where his office is or, in the absence thereof, his residence is
Court to suspend the oath taking of the officials? located. In no case shall any lawyer be a member of more
than one Chapter (RRC, Sec. 4, Rule 139-A).
A: Yes. The candidates for the national positions in the
IBP conducted their campaign preparatory to the Procedure for voluntary termination of membership
election on June 3, 1989 in violation of Section 14 of
the IBP by-laws and the Rules of Court, that the IBP A member may terminate his membership by filing a
shall be strictly non-political. Also the ethics of the legal written notice to that effect with the Secretary of the
profession imposed on all lawyers has been violated Integrated Bar, who shall immediately bring the
matter to the attention of the Supreme Court.
UNIVERSITY OF SANTO TOMAS
29 FACULTY OF CIVIL LAW
Legal Ethics
Forthwith he shall cease to be a member and his name NOTE: RA 7432 providing 20% discount to Senior Citizens DO
shall be stricken by the Court from the Roll of NOT apply to IBP Dues.
Attorneys (RRC, Sec.11, Rule 139-A).
Q: Atty. Arevalo sought exemption from payment of
NOTE: Re-instatement may be made by the Court in IBP dues for the alleged unpaid accountability for the
accordance with rules and regulations prescribed by the years 1977-2005. He alleged that after being
Board of Governors and approved by the Court (RRC, Sec.11, admitted to the Philippine Bar in 1961, he became
Rule 139-A). part of the Philippine Civil Service then migrated to,
and worked in, the USA in December 1986 until his
Membership dues
retirement in the year 2003. He maintained that he
cannot be assessed IBP dues for the years that he was
Every member of the Integrated Bar shall pay such
working in the Philippine Civil Service since the Civil
annual dues as the Board of Governors shall determine
Service law prohibits the practice of ones profession
with the approval of the Supreme Court. A fixed sum
while in government service, and neither can he be
equivalent to ten percent (10%) of the collections from
assessed for the years when he was working in the
each Chapter shall be set aside as a Welfare Fund for
USA. Is Atty. Arevalo entitled to exemption from
disabled members of the Chapter and the compulsory
payment of his dues during the time that he was
heirs of deceased members thereof (RRC, Sec. 9, Rule
inactive in the practice of law?
139-A).
NOTE: Membership dues are not prohibited by the A: No. The Integration of the Philippine Bar means the
Constitution. The fee is imposed as a regulatory measure, official unification of the entire lawyer population. This
designed to raise funds for carrying out the purposes and requires membership and financial support of every
objectives of the integration (In the Matter of IBP attorney as condition sine qua non to the practice of
Membership dues delinquency of Atty. Marcial Edillon, A.M. law and the retention of his name in the Roll of
No. 1928, Aug. 3, 1978). Attorneys of the Supreme Court.
A: Atty. Kuripot is not correct. Section 7.03 of the Code lawyers without due process (Zaldivar v.
of Professional Responsibility provides that a lawyer Gonzales, G.R. Nos. 79690-707, Feb. 1, 1989).
shall not engage in conduct that adversely affects his 5. Calling an adverse counsel as bobo or using
fitness to practice law, nor shall he, whether in public the word ay que bobo in reference to the
or private life, behave in a scandalous manner to the manner of offering evidence. (Castillo v. Padilla Jr.,
discredit of the legal profession. A.M. No. 2339, Feb. 1984); and
6. Any other analogous cases.
Q: Explain whether Atty. Kuripot should be held
administratively liable for his refusal to settle his NOTE: The lawyers arguments, whether written or oral,
credit card bill. (2005 Bar Question) should be gracious to both the court and opposing counsel
and be of such words as may be properly addressed by one
A: He may not be held administratively liable. The gentleman to another (National Security Co. v. Jarvis, 278 U.S.
Supreme Court has held that it does not take original 610).
jurisdiction of complaints for collection of debts. The
A lawyers language should be forceful but dignified,
creditors course of action is civil, not administrative
emphatic but respectful as befitting an advocate and in
in nature and proper reliefs may be obtained from the
keeping with the dignity of the legal profession (In Re:
regular courts (Litigio v. Dicon, A.M. No. MTJ-93-806, Climaco, A.C. No. 134-J, Jan. 21, 1974).
July 13, 1995). Although lawyers have been held
administratively liable for obstinacy in evading Q: In the pleadings and motions filed by Tiongco, he
payment of a debt (Constantino v. Saludares, A.C. No. described Atty. Deguma as a love crazed Apache, a
2029, Dec. 7, 1993; Lao v. Medel, A.C. No. 5916, July 1, horned spinster, man-hungry virago and female bull
2003), there is no obstinacy shown in this case. of an Amazon who would stop at nothing to injure
defendant if only to please and attract her client.
COURTESY, FAIRNESS AND CANDOR TOWARDS Tiongco claims that she, as a lawyer in the Public
PROFESSIONAL COLLEAGUES Attorneys Office, is using the PAO as a marriage
bureau for her benefit. Is the language employed by
Canon 8 Tiongco improper and unethical?
A lawyer shall conduct himself with courtesy,
fairness and candor towards his professional A: Yes. The Code of Professional Responsibility
colleagues, and shall avoid harassing tactics provides in Canon 8 that a lawyer shall conduct himself
against opposing counsel. with courtesy, fairness, and candor toward his
professional colleagues, and shall avoid harassing
tactics against opposing counsel. Rule 8.01 provides
Lawyers, though they may represent different clients, that a lawyer shall not in his professional dealings, use
should bear in mind that they are not enemies but language which is abusive, offensive or otherwise
brothers and sisters in their profession (Antiquiera, improper while Rule 11.03 provides that a lawyer shall
1992). abstain from scandalous, offensive or menacing
language before the courts. Thus, Tiongco is warned
Rule 8.01, Canon 8 accordingly (Tiongco Yared v. Ilarde, G.R. No. 114732,
A lawyer shall not, in his professional dealings, use Aug. 1, 2000).
language which is abusive, offensive or otherwise
improper. NOTE: Lack of want of intention is no excuse for the
disrespectful language employed. Counsel cannot escape
Instances of disrespectful language responsibility by claiming that his words did not mean what
any reader must have understood them as meaning (Rheem
of the Philippines v. Ferrer, G.R. No. L-22979, Jan. 27, 1967).
1. Categorizes the SC decision as false, erroneous
and illegal (Suo v. Cloribel, A.M. No. 01-1-15-RTC, Although the Canon that the Rule implements pertains to a
July 10, 2003). lawyers dealings with his fellow lawyers, the Rule is
2. Description of judges attitude as unjust, hostile, generally worded to apply to anyone in the wider context of
vindictive and dangerous (Cornejo v. Judge Tan, a lawyers professional dealings, including his or her clients
G.R. No. L-2217, Mar. 23, 1950). and witnesses (CPR Annotated, PhilJA).
3. Stating that justice is blind and also deaf and
dumb (In Re: Almacen, G.R. No. L- 27654, Feb. 18,
1970).
4. Attributing to the SC acts of dismissing judges
without rhyme and reason and disbarring
dishonesty of those unlicensed to practice law and not unqualified person the performance of any task which
subject to the disciplinary control of the court. by law may only be performed by a member of the bar
in good standing.
There is no violation of this canon if a lawyer employs
a paralegal graduate to assist him in the practice of law Rule 9.02, Canon 9
since the job of a paralegal is limited to drafting of A lawyer shall not divide or stipulate to divide a
documents, case management, etc. (Antiquiera, 1992). fee for legal services with persons not licensed to
practice law.
Q: Sanchez alleged that the complaint against him
and the supporting affidavits were subscribed and The interest promoted by the prohibition is that the
sworn to before Tupas, the Clerk of Court, who is not independence of the professional judgment of a
a member of the IBP and therefore engaged in lawyer, which the client is paying for, could be at risk
unauthorized practice of law. Is Tupas as Clerk of if a non-lawyer has direct rights to share in the legal
Court authorized to administer oath? fees resulting from the exercise of such professional
judgment (CPR Annotated, PhilJA).
A: The term "clerk of courts" in Section 41 of the
Administrative Code as amended is used as a general Exceptions to Rule 9.02
term. The intention of the law is to authorize all clerks
of court regardless of whether they are clerks of the 1. Where there is a pre-existing agreement with a
MTCs, to administer oaths on matter involving official partner or associate that, upon the latters death,
business. As Clerk of Court of MCTC, Tupas has the money shall be paid over a reasonable period of
authority to administer oath of affidavits of parties and time to his estate to persons specified in the
witnesses which are to be filed in court (Sanchez v. agreement; (CPR, Rule 9.02, second par., Canon 9)
Tupas, A.M. OCA IPI No. 03- 1687-P, Mar. 1, 2004). or
Although the authority of a lawyer to represent a client 3. Where a lawyer or law firm includes a non-lawyer
cannot be delegated to an unqualified person, it does employees in a retirement plan, even if the plan is
not follow however that the retained lawyer is based in whole or in part, on a profit sharing
automatically authorized to make such delegation to a agreement (CPR, Rule 9.02, fourth par., Canon 9).
qualified person because a client-lawyer relationship is
personal (CPR Annotated, PhilJA). NOTE: This is not a division of legal fees but a pension
representing deferred wages for the employees
Q: Lorenzo is a lawyer but is suspended in the practice past services.
of law due to some unethical acts. He worked for a
This exception is an implicit recognition of the
law firm owned by one of his friends. Since he has so
incontestable fact that lawyers need to, and in fact,
many cases to handle, Atty. Berenguer assigned a
depend on non-lawyers for the administrative support
case to Lorenzo, believing he can handle such easy functions necessary to allow lawyers to discharge their
case. Did Atty. Berenguer violate any rule? legal functions more efficiently (CPR Annotated,
PhilJA).
A: Yes, because he delegates handling of a case to a
person suspended from the practice of law. Under
Rule 9.01 of CPR A lawyer shall not delegate to any
Q: You had just taken your oath as lawyer. The judiciary would be intolerable if it could not take at
secretary to the president of a big university offered face value what is asserted by counsel. The time that
to get you as the official notary public of the school. will have to be devoted just to the task of verification
She explained that a lot of students lose their of allegations submitted could easily be imagined
identification cards and are required to secure an (Hueysuwan- Florido v. Atty. Florido, A.C. No. 5624, Jan.
affidavit of loss before they can be issued a new one. 20, 2004).
She claimed that this would be very lucrative for you,
as more than 30 students lose their identification Requirements of candor
cards every month. However, the secretary wants
you to give her one-half of your earning therefrom. 1. A lawyer shall not suppress material and vital facts
Will you agree to the arrangement? Explain. (2005 which bear on the merit or lack of merit of
Bar Question) complaint or petition.
2. A lawyer shall volunteer to the court any
A: No, I will not agree. Rule 9.02 of the Code of development of the case which has rendered the
Professional Responsibility provides that a lawyer issue raised moot and academic.
shall not divide or stipulate to divide a fee for legal 3. Disclosure to the court of any decision adverse to
service with persons not licensed to practice law. The his position of which opposing counsel is
secretary is not licensed to practice law and is not apparently ignorant and which court should
entitled to a share of the fees for notarizing affidavits, consider in deciding a case.
which is a legal service. 4. He shall not represent himself as a lawyer for a
client, appear in court and present pleadings in
DUTIES AND RESPONSIBILITIES OF A the latters behalf only to claim later that he was
LAWYER TO THE COURTS not authorized to do so.
The burden cast on the judiciary would be intolerable A lawyer must be a disciple of truth. He should bear in
if it could not take at face value what is asserted by mind that as an officer of the court his high vocation is
counsel. to correctly inform the court upon the law and the
facts of the case and to aid it in doing justice and
As officers of the court, lawyers have the primary arriving at correct conclusion.
obligation towards the administration of justice. To The courts on the other hand are entitled to expect
mislead the court is contumacious and clearly a ground only complete honesty from lawyers appearing and
for disciplinary action (Antiquiera, CPR, p. 39). pleading before them. While a lawyer has the
solemn duty to defend his clients cause, his conduct
Q: Atty. Florido demanded that the custody of their must never be at the expense of truth (Young v.
children be surrendered to him by showing his spouse Batuegas, A.C. No. 5379, May 9, 2003).
Hueysuwan-Florido a photocopy of an alleged
Resolution issued by the CA which supposedly NOTE: A lawyer owes fidelity to the cause of his client but
granted his motion for temporary child custody. His not at the expense of truth and the administration of justice
spouse refused to surrender the custody. Hence, Atty. (Garcia v. Francisco, Adm. Case no. 3923, Mar. 30,1993).
Florido filed a verified petition for the issuance of a
writ of habeas corpus asserting his right to custody of Q: Dr. Maligaya, a doctor and retired colonel of the
the children on the basis of the alleged CAs Air Force filed an action for damages against several
resolution. Hueysuwan obtained a certification from military officers for whom Atty. Doronilla stood as a
the CA stating that no such resolution had been counsel. During the hearing of the case, Atty.
issued. Hence, complainant filed the instant Doronilla says that he and Dr. Maligaya had an
complaint. May Atty. Florido be held administratively agreement that if the opposing party withdraws the
liable for his reliance on and attempt to enforce a case against him, Dr. Maligaya will also withdraw all
spurious Resolution of the CA? the cases. However, Dr. Maligaya swore that he never
entered into any agreement to withdraw his lawsuits.
A: Yes. Atty. Floridos actions erode the public Atty. Doronillo admitted that there was, in fact, no
perception of the legal profession. Candor and fairness such agreement. He pointed out that his main
are demanded of every lawyer. The burden cast on the concern was to settle the case amicably. Dr. Maligaya
UNIVERSITY OF SANTO TOMAS
35 FACULTY OF CIVIL LAW
Legal Ethics
filed a case against Atty. Doronilla charging him of Carranza, A.C. No. 716, Jan. 30, 1969).
unethical conduct for having uttered falsehood in 9. Lawyer filing false charges or groundless suits
court. Is Atty. Doronilla guilty as charged? (Retuya v. Gorduiz, A.C. No. 1388, Mar. 28, 1980).
10. Making untruthful and false statements before
A: Yes. Atty. Doronilla violated Canon 10 and Rule the court (Molina v. Magat, A.C. No. 1900, June
10.01 of the CPR. Not only that, he also violated the 13, 2012).
lawyers oath to do no falsehood, nor consent to the
doing of any in court, of which Canon 10 and Rule Rule 10.02, Canon 10
10.01 are but restatements. His act infringed on every A lawyer shall not knowingly misquote or
lawyers duty to never seek to mislead the judge or misrepresent the contents of the paper, the
any officer by an artifice or false statement of fact or language or the argument of opposing counsel, or
law (Maligaya v. Doronilla, A.C. No. 6198, Sept. 15, the text of a decision or authority, or knowingly
2006). cite as law a provision already rendered
inoperative by repeal or amendment, or assert as
Presenting false evidence is not justifiable a fact that which has not been proved.
It is a clear violation of Canon 10 and Rule 10.01 of the If not faithfully and exactly quoted, the decisions and
CPR. rulings of the court may lose their proper and correct
meaning, to the detriment of other courts, lawyers and
NOTE: Aside from violations of the CPR, the lawyer is also the public who may thereby be misled.
guilty of a crime under Art. 184, Revised Penal Code,
which states, "Any person who shall knowingly offer in
evidence a false witness or testimony in any judicial or Rule 10.03, Canon 10, CPR
official proceeding, shall be punished as guilty of false A lawyer shall observe the rules of procedure and
testimony and shall suffer the respective penalties provided shall not misuse them to defeat the ends of
in this section. justice.
Rule 10.04, Canon 10 petition is called for under the Code of Judicial
A lawyer shall, when filing a pleading, furnish the Conduct prohibiting justices or judges from
opposing party with a copy thereof, together with participating in any partisan political activity.
all the documents annexed thereto. Unless a According to him, the justices have violated the said
motion is ex parte, he should set it for hearing, rule by attending the 'EDSA 2 Rally' and by
with sufficient notice to the other party. authorizing the assumption of Vice- President
Macapagal-Arroyo to the Presidency. The subsequent
RESPECT FOR COURTS AND JUDICIAL OFFICERS decision of the Court in Estrada v. Arroyo (G.R. Nos.
146710-15, Mar. 2, 2001 and G.R. Nos. 146710-15,
Apr. 3, 2001) is a patent mockery of justice and due
Canon 11
process. He went on to state that the act of the
A lawyer shall observe and maintain the respect
public officer, if lawful, is the act of the public office.
due to the courts and to judicial officers and
But the act of the public officer, if unlawful, is not the
should insist on similar conduct by other
act of the public office. Consequently, the act of the
justices, if lawful, is the act of the Supreme Court. But
Disrespect toward the court would necessarily the act of the justices, if unlawful, is not the act of the
undermine the confidence of the people in the Supreme Court. It is submitted that the decision in
honesty and integrity of the members of the court, and Estrada v. Arroyo being patently unlawful in view of
consequently to lower or degrade the administration the Code of Judicial Conduct, is not the act of the
of justice by the court. Supreme Court but is merely the wrong of those
individual Justices who falsely spoke and acted in the
All lawyers are expected to recognize the authority of name of the Supreme Court (Urbano v. Chavez, G.R.
the Supreme Court and obey its lawful processes and No. 87977, Mar. 19, 1990). Are Atty. Paguias
orders. Despite errors which one may impute on the comments within the bounds of fair and well-
orders of the Court, these must be respected, founded criticisms regarding decisions of the SC?
especially by the bar or the lawyers who are
themselves officers of the courts (Yap-Paras v. Atty. A: No. Criticism or comment made in good faith on the
Paras, A.C. No. 4947, June 7, 2007). correctness or wrongness, soundness or unsoundness,
of a decision of the Court would be welcome for, if
In case of conflict between his duty to the court and well-founded, and such reaction can enlighten the
his duty to the society and his client, the other must court and contribute to the correction of an error if
yield since it is his duty to the court that should take committed (In re: Sotto, 82 Phil. 595). The ruling in
precedence. Estrada v. Arroyo, being a final judgment, has long put
to end any question pertaining to the legality of the
Q: Atty. Z criticized the court in a tactful manner, not ascension of Arroyo into the presidency. By reviving
in any way causing disrespect. Is that allowed? the issue on the validity of the assumption of Gloria
Macapagal-Arroyo to the presidency, Attorney Paguia
A: Yes. The fact that a person is a lawyer does not is vainly seeking to breathe life into the carcass of a
deprive him of the right, as enjoyed by every citizen, to long dead issue. Attorney Paguia has not limited his
comment on and criticize the actuations of a judge but discussions to the merits of his client's case within the
it is the cardinal condition of all criticisms that it shall judicial forum; indeed, he has repeated his assault on
be bona fide, and shall not spill over the walls of the Court in both broadcast and print media.
decency and propriety (Zaldivar v. Gonzales, G.R. Nos.
79690-707, Feb. 1, 1989). The Supreme Court does not claim infallibility; it will
not denounce criticism made by anyone against the
NOTE: What a lawyer can ordinarily say against a concluded Court for, if well-founded, can truly have constructive
litigation and the manner the judge handed down the
effects in the task of the Court, but it will not
decision therein may not generally be said to a pending
action. The court, in a pending litigation, must be shielded countenance any wrongdoing nor allow the erosion of
from embarrassment and influence in performing the our peoples faith in the judicial system, let alone, by
important duty of deciding it. On the other hand, once those who have been privileged by it to practice law in
litigation is concluded, the judge who decided on it is subject the Philippines. Canon 11 of the Code of Professional
to the same criticism as any other public official because Responsibility mandates that the lawyer should
then his ruling becomes public property and is thrown open observe and maintain the respect due to the courts and
to public consumption. judicial officers and, indeed, should insist on similar
conduct by others. In liberally imputing sinister and
Q: Attorney Paguia, asserts that the inhibition of the devious motives and questioning the impartiality,
members of the Supreme Court from hearing the
UNIVERSITY OF SANTO TOMAS
37 FACULTY OF CIVIL LAW
Legal Ethics
integrity, and authority of the members of the Court, Misrepresentation in the Supreme Court, A.M. No. 10-
Atty. Paguia has only succeeded in seeking to impede, 10-4-SC, Oct. 19, 2010).
obstruct and pervert the dispensation of justice
(Estrada v. Sandiganbayan, G.R. Nos. 159486-88, Nov. Q: The Court En Banc issued a Resolution directing
25, 2003). respondent Atty. De Vera to explain why he should
not be cited for indirect contempt of court for
Q: Members of the faculty of the UP College of Law uttering some allegedly contemptuous statements in
published a statement on the allegations of relation to the case involving the constitutionality of
plagiarism and misrepresentation relative to the the Plunder Law which was then pending. Atty. De
Courts decision in Vinuya v. Executive Secretary. The Vera admitted the report in the November 6, 2002
authors directly accused the Court of perpetrating issue of the Philippine Daily Inquirer that he
extraordinary injustice by dismissing the petition of suggested that the Court must take steps to dispel
the comfort women said case. The insult to the once and for all these ugly rumors and reports that
members of the Court was aggravated by the Court would vote in favor of or against the
imputations of deliberately delaying the resolution of validity of the Plunder Law to protect the credibility
the said case, its dismissal on the basis of polluted of the Court. Is the statement of Atty. De Vera
sources, the Courts alleged indifference to the disrespectful to the courts?
cause of petitioners, as well as the supposed alarming
lack of concern of the members of the Court for even A: Yes. Indeed, freedom of speech includes the right to
the most basic values of decency and respect. know and discuss judicial proceedings, but such right
does not cover statements aimed at undermining the
A: While most agree that the right to criticize the Courts integrity and authority, and interfering with
judiciary is critical to maintaining a free and the administration of justice. Freedom of speech is not
democratic society, there is also a general consensus absolute, and must occasionally be balanced with the
that healthy criticism only goes so far. Many types of requirements of equally important public interests,
criticism leveled at the judiciary cross the line to such as the maintenance of the integrity of the courts
become harmful and irresponsible attacks. These and orderly functioning of the administration of justice.
potentially devastating attacks and unjust criticism can
threaten the independence of the judiciary. The court Thus, the making of contemptuous statements
must insist on being permitted to proceed to the directed against the Court is not an exercise of free
disposition of its business in an orderly manner, free speech; rather, it is an abuse of such right.
from outside interference obstructive of its functions Unwarranted attacks on the dignity of the courts
and tending to embarrass the administration of cannot be disguised as free speech, for the exercise of
justice. said right cannot be used to impair the independence
and efficiency of courts or public respect therefore and
The Court could hardly perceive any reasonable confidence therein (In Re: Published Alleged Threats by
purpose for the facultys less than objective comments Atty. Leonard de Vera, A.M. No. 01-12-03-SC, July 29,
except to discredit the April 28, 2010 Decision in the 2002).
Vinuya case and undermine the Courts honesty,
integrity and competence in addressing the motion for Rule 11.01, Canon 11
its reconsideration. As if the case on the comfort A lawyer shall appear in court properly attired.
womens claims is not controversial enough, the UP
Law Faculty would fan the flames and invite As an officer of the court and in order to maintain the
resentment against a resolution that would not dignity and respectability of the legal profession, a
reverse the said decision. This runs contrary to their lawyer who appears in court must be properly attired.
obligation as law professors and officers of the Court Consequently, the court can hold a lawyer in contempt
to be the first to uphold the dignity and authority of of court if he does not appear in proper attire. Any
this Court, to which they owe fidelity according to the deviation from the commonly accepted norm of
oath they have taken as attorneys, and not to promote dressing in court (barong or tie, not both) is enough to
distrust in the administration of justice. Their actions warrant a citing for contempt.
likewise constitute violations of Canons 10, 11, and 13
and Rules 1.02 and 11.05 of the Code of Professional The traditional attires for male lawyers in the
Responsibility (Re: Letter of the UP Law Philippines are the long-sleeve Barong Tagalog or coat
Faculty entitled Restoring Integrity: A Statement by and tie. Female lawyers appear in semi-formal attires.
the Faculty of the University of the Philippines College Judges also appear in the same attire in addition to
of Law on the Allegations of Plagiarism and black robes.
Rule 11.05, Canon 11 given by the trial court, Atty. Villar Jr. failed to file his
A lawyer shall submit grievances against a Judge formal offer of exhibits. The dismissal of the
to the proper authorities only. collection case prompted Jardin to file a verified
affidavit-complaint for the disbarment of Atty. Villar
Proper venue/forum for the filing of the following Jr. with the Court, wherein he alleged that after the
cases dismissal of the collection case, he terminated the
services of Atty. Villar Jr. as his counsel; that Atty.
NATURE OF THE CASE WHERE TO FILE Villar Jr. failed to return the originals of the
If administrative in It shall be filed with the documentary exhibits entrusted to him; and that Atty.
nature Office of the Court Villar Jr. finally handed over the documents only as
Administrator of the an aftermath of a heated argument he had with the
Supreme Court. Jardin's wife. Was Atty. Villar Jr. remiss in his duties
If criminal and not It shall be filed with the as counsel when he failed to file his formal offer of
purely administrative Office of the exhibit?
Ombudsman, also with
the OCP. A: Yes. The record clearly shows that Atty. Villar Jr. has
If it involves a Justice of It must be coursed been languid in the performance of his duties as
counsel for the complainant. He was given by the Trial
the Supreme Court through the House of
Court several extensions of time. Therefore, Atty. Villar
based on impeachable Representative and the
offenses Senate in accordance Jr. had three (3) months and nine (9) days within which
with the rules on to file the formal offer of exhibits. Atty. Villar Jr. did not
bother to give an explanation even in mitigation or
impeachment.
extenuation of his inaction.
Source: (CPR Annotated, PhilJA)
law should advise them that a case such as this should pending manifestation and motion with the CA,
not be permitted to be filed to merely clutter the which was notarized by Atty. Manlangit. Both Atty.
already congested judicial dockets. They do not Manlangit and Atty. Gana knew the relevant case
advance the cause of law or their clients by status after having invariably acted as counsel of Top
commencing litigations that for sheer lack of merit do Rate before the trial court, the Court of Appeals and
not deserve the attention of the courts (Eternal the Supreme Court.
Gardens Memorial Park Corporation v. CA, G.R. No.
123698, Aug. 5, 1998). Top Rate then filed a series of motions with the SC,
all of which failed to state that Top Rate still has a
Rule 12.01, Canon 12 pending manifestation and motion with the CA. It
A lawyer shall not appear for trial unless he has was only when it withdrew its Petition for Review on
adequately prepared himself on the law and the Certiorari that Top Rate bared before the SC the
facts of his case, the evidence he will adduce and existence of the said manifestation and motion
the order of its profference. He should also be pending with the CA. Should Top Rate and its counsel
ready with the original documents for comparison be found guilty of forum shopping?
with the copies.
A: Yes. Although Top Rate as principal party executed
A newly hired counsel who appears in a case in the the several certifications of non-forum shopping, Atty.
midstream is presumed and obliged to acquaint Gana and Atty. Manlangit cannot deny responsibility
himself with all the antecedent processes and therefore since Atty. Manlangit notarized the
proceedings that have transpired in the record prior to certifications and both of them definitely knew the
his takeover (Villasis v. CA, G.R. Nos. L- 36874-76, Sept. relevant case status after having invariably acted as
30, 1974). counsel of Top Rate before the trial court, the Court of
Appeals and the Supreme Court. Attys. Gana and
Rule 12.02, Canon 12 Manlangit of the Gana and Manlangit Law Office,
A lawyer shall not file multiple actions arising counsel of record of Top Rate, are administratively
from the same cause. (1991, 1997, 1998, 2002 Bar liable for grotesque violations of the Code of
Questions) Professional Responsibility.
By subjecting her into explaining whether she was RELIANCE ON MERITS OF CASE AND AVOIDANCE
forced or intimidated is excessive. It is because proof FROM ANY IMPROPRIETY WHICH TENDS TO
of force and intimidation is unnecessary in statutory INFLUENCE OR GIVES THE APPEARANCE OF
rape. Considering that there is a medical report INFLUENCE UPON THE COURTS
substantiating the allegations made by the victim, the
manner of examination of the victim must be
Canon 13
tempered. Especially in this case since the child is only
A lawyer shall rely upon the merits of his cause
six years old who remains uncorrupted (People v.
and refrain from any impropriety which tends to
Boras, G.R. No. 127495, Dec. 22, 2000).
influence, or gives the appearance of influencing
the court
Giving of gifts to the judges are discouraged as it tend inviting him to be a principal sponsor at the wedding
to give an appearance of influencing the conduct of of his son.
judicial function or breeding familiarity with judges
(Antiquiera, 1992). Rule 13.02, Canon 13
A lawyer shall not make public statements in the
It is reprehensible for a lawyer to wrongfully use the media regarding a pending case tending to arouse
name of the law office for the purpose of giving more public opinion for or against a party.
weight and credit to the pleading. Motions and
pleadings filed in courts are acted upon in accordance Prejudicial Publicity
with their merits or lack of it, and not on the
reputation of the law firm or the lawyer filing the same There must be an allegation and proof that the judges
(Rodica v. Atty. Lazaro, et al. A.C. No. 9259, August 23, have been unduly influenced, not simply that they
2012). might be, by barrage of publicity (CPR Annotated,
PhilJA).
Rule 13.01, Canon 13
A lawyer shall not extend extraordinary attention NOTE: The restriction does not prohibit issuances of
or hospitality to, nor seek opportunity for statements by public officials charged with the duty of
cultivating familiarity with judges. prosecuting or defending actions in court.
official because his decision becomes public property It is sufficient to establish the professional relation,
and is thrown open to public consumption. The lawyer that the advice and assistance of an attorney is sought
enjoys a wide latitude in commenting or criticizing the and received in any matter pertinent to his profession.
judges decision, provided that such comment or An acceptance of the relation is implied on the part of
criticism shall be bona fide and not spill over the the attorney from his acting on behalf of his client in
bounds of decency and propriety. pursuance of a request from the latter.
Rule 13.03, Canon 13 NOTE: If a person, in respect to his business affairs or any
A lawyer shall not brook or invite interference by troubles of any kind, consults with his attorney in his
professional capacity with the view to obtaining professional
another branch or agency of the government in
advice or assistance and the attorney voluntarily permits or
the normal course of judicial proceedings. acquiesce in such consultation, as when he listens to his
clients preliminary statement of his case or gives advice
The reason for this rule is that such action will be thereon, then the professional employment is regarded as
contrary to the principle of separation of powers. established just as effective as when he draws his clients
pleading or advocates his clients cause in court (Dee v. CA,
All lawyers must uphold, respect and support the G.R. No. 77439, Aug. 24, 1989).
independence of the judiciary. This independence
from interference is made to apply against all branches Formation of the lawyer-client relationship
and agencies of the government (Funa, 2009).
The lawyer-client relationship is formed through the
The Supreme Court accordingly administered a following:
reprimand to Bumanlag for gross ignorance of law and 1. Oral When the counsel is employed without a
of the Constitution in having asked the President to set written agreement, but the conditions and
aside by decree the Courts decision which suspended amount of attorneys fees are agreed upon.
him for two years from the practice of law (De 2. Express When the terms and conditions
Bumanlag v. Bumanlag, A.M. No. 188, Nov. 29, 1976). including the amount of fees are explicitly stated
in a written document, which may be a private or
DUTIES AND RESPONSIBILITIES OF A public document. Written contract of attorneys
LAWYER TO THE CLIENTS fees is the law between the lawyer and the client.
3. Implied When there is no agreement, whether
Characteristics of attorney-client relationship oral or written, but the client allowed the lawyer
to render legal services not intended to be
1. Strictly personal Prohibits the delegation of work gratuitous without objection and client is
without the clients consent benefited by reason thereof.
2. Highly confidential
a. Communication made in the course of Rules protecting the attorney-client relationship
lawyers professional employment; and
b. Communication intended to be confidential 1. Best effort must be exerted by the attorney to
3. Fiduciary protect his clients interest;
a. Hold in trust all moneys and properties of his 2. The attorney must promptly account for any fund
client that may come into his possession; or property entrusted by or received for his client;
b. When a lawyer enforces a charging lien 3. An attorney cannot purchase his clients property
against his client, the relationship is or interest in litigation;
terminated; and 4. The privacy of communications shall at all times
c. An attorney cannot represent adverse upheld;
interest unless the parties consent to the 5. An attorney cannot represent a party whose
representation after full disclosure of facts interest is adverse to that of his client even after
the termination of the relation.
Necessity of a contract between lawyer and client
Three principal types of professional activity of a
The absence of a written contract will not preclude a lawyer (LAP)
finding that there is a professional relationship.
Documentary formalism is not an essential element in 1. Legal advice and instructions to clients to inform
the employment of an attorney; the contract may be them of their rights and obligations;
express or implied. 2. Appearance for clients before public tribunals
which possess power and authority to determine
rights of life, liberty, and property according to preparation and the proposed filing of the petition was
law, in order to assist in proper interpretation and only incidental to their personal transaction (Uy v. Atty.
enforcement of law; and Gonzales, A.C. No. 5280, Mar. 30, 2004).
3. Preparation for clients of documents requiring
knowledge of legal principles not possessed by AVAILABILITY OF SERVICE WITHOUT
ordinary layman (CPR Annotated, PhilJA). DISCRIMINATION
forestall an injustice (Public Service. Sec. 1 Art. 1 IBP b) A lawyer may also accept a losing civil case, provided
Guidelines on Legal Aid). that, in so doing, he must not engage in dilatory tactics
and must advise his client about the prospects and
Q: Are there instances where a lawyer has the duty to advantage of settling the case through a compromise
decline employment? (1993 Bar Question) to the extent of representing indigents, defenseless
and the oppressed.
A: A lawyer should decline no matter how attractive
the fee offered may be if its acceptance will involve: SERVICES REGARDLESS OF PERSONS STATUS
(RACCAA)
1. A violation of any of the Rules of the legal Rule 14.01, Canon 14
profession; A lawyer shall not decline to represent a person
2. Advocacy in any manner in which he had solely on account of the latters race, sex, creed or
intervened while in the government service; status of life, or because of his own opinion
3. Nullification of a Contract which he prepared; regarding the guilt of said person.
4. Employment with a Collection agency which
solicits business to collect claims; Q: Atty. DDs services were engaged by Mr. BB as
5. Employment, the nature of which might easily defense counsel in a lawsuit. In the course of the
be used as a means of Advertising his proceedings, Atty. DD discovered that Mr. BB was an
professional services of his skill; or agnostic and a homosexual. By reason thereof, Atty.
6. Any matter in which he knows or has reason to DD filed a motion to withdraw as counsel without Mr.
believe that he or his partner will be an BBs express consent. Is Atty. DDs motion legally
essential witness for the prospective client. tenable? Reason briefly. (2004 Bar Question)
Reasons why a lawyer may not accept a losing case A: No. Atty. DDs motion is not legally tenable. He has
no valid cause to terminate his services. His client, Mr.
1. The attorneys signature in every pleading BB, being an agnostic and homosexual, should not be
constitutes a certificate by him that there is good deprived of his counsels representation solely for that
cause to support it and that it is not interposed for reason.
delay, and willful violation of such rule shall
subject him to disciplinary action; SERVICES AS COUNSEL DE OFFICIO
2. It is the attorneys duty to counsel or maintain
such actions or proceedings only as appears to Rule 14.02, Canon 14
him to be just and only such defenses as he A lawyer shall not decline, except for serious and
believes to be honestly debatable under the law; sufficient cause, an appointment as counsel de
3. A lawyer is not to encourage either the officio or as amicus curiae, or a request from the
commencement or the continuance of an action Integrated Bar of the Philippines or any of its
or proceeding, or delay any mans cause, for any chapters for rendition of free legal aid (1991,
corrupt motive or interest; and 1993, 1994, 1996, 1998, 2001, 2002, 2004, 2006
4. A lawyer must decline to conduct a civil cause or Bar Questions)
to make a defense when convinced that it is
intended merely to harass or injure the opposite
A court may assign an attorney to render professional
party or to work oppression or wrong.
aid free of charge to any party in case, if upon
Q: Is there an instance when a lawyer may accept investigation it appears that the party is destitute and
losing case? (1996, 2001, 2002, 2005 Bar Questions) unable to employ an attorney and that the services of
counsel are necessary to secure the ends of justice and
a. In criminal case? to protect the rights of the party. It shall be the duty of
b. In civil case? the attorney so assigned to render the required service,
unless he is excused therefrom by the court for
A: sufficient cause shown (RRC, Sec. 31, Rule 138).
a) A lawyer may accept a losing criminal case since
an accused is presumed to be innocent until his guilt is Counsel de oficio
proven beyond reasonable doubt. Furthermore, CPR
provides that a lawyer shall not decline to represent a 1. Members of the bar in good standing;
person because of his opinion regarding the guilt of 2. Any person, resident of the province and of good
said person. Otherwise innocent persons might be repute for probity and ability, in localities without
denied proper defense (CPR, Rule 14.01). lawyers
Considerations in appointing a counsel de oficio the most compelling and cogent reasons.
A counsel de officio is expected to act with utmost Q: Assailed in a certiorari proceeding is an order of
diligence. A mere pro-forma appointment of de officio respondent Judge Climaco denying a motion filed by
counsel who fails to genuinely protect the interests of petitioner Ledesma to be allowed to withdraw as
the accused merits disapprobation. The exacting counsel de officio. One of the grounds for such a
demands expected of a lawyer should be no less than motion was his allegation that with his appointment
stringent when one is a counsel de officio. He must as Election Registrar by the COMELEC, he was not in
take the case not as a burden but as an opportunity to a position to devote full time to the defense of the
assist in the proper dispensation of justice. No lawyer two accused. The denial by respondent Judge of such
is to be excused from this responsibility except only for
UNIVERSITY OF SANTO TOMAS
49 FACULTY OF CIVIL LAW
Legal Ethics
a plea, notwithstanding the conformity of the Q: May a lawyer decline a request for free legal aid to
defendants, was due to its principal effect of an indigent accused made by a chapter of the IBP?
delaying the case." Is the denial of Judge Climaco Explain. (2002 Bar Question)
correct?
A: No. Rule 14.02 of the CPR provides that a lawyer
A: Yes. The reluctance of Ledesma to comply with his shall not decline, except for serious and sufficient
responsibilities as counsel de officio is not an adequate cause, an appointment as counsel de officio or as
ground for the motion of withdrawal. Membership in amicus curiae or a request from the IBP or any of
the bar is a privilege burdened with a condition. For its chapter for rendition of free legal aid. He
some lawyers especially the neophytes in the may, decline such appointment only for
profession being appointed as a lawyer is an irksome serious and sufficient cause.
chore. Law is a profession dedicated to the ideal of
service and not a mere trade. Thus is made manifest Q: Will your answer be different if the legal aid is
the indispensable role of a member of the Bar in the requested in a civil case? (2002 Bar Question)
defense of an accused. Such a consideration could
have sufficed for Ledesma not being allowed to A: The answer will not be exactly the same, because in
withdraw as counsel de oficio. For he did betray by his a civil case, the lawyer can also decline if he believes
moves his lack of enthusiasm for the task entrusted to the action or defense to be unmeritorious. He is
him, to put matters mildly. He did point though to his ethically bound to maintain only actions and
responsibility as an election registrar. Assuming his proceedings which appear to him to be just and only
good faith, no such excuse could be availed now. There such defenses which he believes to be honestly
is not likely at present, and in the immediate future, an debatable under the law.
exorbitant demand on his time (Ledesma v. Climaco,
G.R. No. L-23815, June 28, 1974). Rule 14.04, Canon 14
A lawyer who accepts the cause of a person
Q: Ferrer was accused of having raped his 11-year-old unable to pay his professional fees shall observe
stepdaughter. Ferrers counsel of record was PAO's the same standard of conduct governing his
Atty. Macabanding. During the pre-trial, both of them relations with paying clients. (2008 Bar Question)
failed to appear. Ferrer was considered by the court
as having jumped bail. Trial in absentia followed Q: Atty. Mariano Dajoyag, Jr. is Ernesto Ramos
where Ferrer was assisted by another PAO lawyer, counsel. He failed to perfect their appeal before the
Atty. Alonto. Atty. Macabanding did not appear in all SC. He filed the petition for certiorari within the 20-
the subsequent hearings of the case. He did not day period of extension that he sought in his 2nd
inform the court of his whereabouts. Ferrer was motion for extension. He learned that the period of
found guilty beyond reasonable doubt of the crime extension granted in his 1st motion for extension was
charged and imposed upon him the death penalty. inextendible only after the expiration of the 2 periods
Did Atty. Macabanding live up to the demands of extension that he prayed for. A complaint for
expected from a counsel de officio? negligence and malpractice was filed against him, to
which he pleaded good faith and excusable neglect of
A: No. Ferrer was not properly and effectively duty. Is Atty. Dajoyag Jr. guilty of neglect of duty?
accorded the right to counsel. Canon 18 of the CPR
requires every lawyer to serve his client with utmost A: Yes. Motions for extension are not granted as a
dedication, competence and diligence. He must not matter of right but in the sound discretion of the court,
neglect a legal matter entrusted to him. For all intents, and lawyers should never presume that their motions
purposes and appearances, Atty. Macabanding for extension or postponement will be granted or that
abandoned his client, an accused who stands to face they will be granted the length of time they prayed for.
the death penalty.
Further, regardless of the agreement Atty. Dajoyag, Jr.
While he faced the daunting task of defending an had with Ramos with respect to the payment of his fees,
accused that had jumped bail, this unfortunate Atty. Dajoyag, Jr. owed it to Ramos to do his utmost to
development is not a justification to excuse him from ensure that every remedy allowed by law is availed of.
giving his heart and soul to the latter's defense. The Rule 14.04 of the Code of Professional Responsibility
exercise of their duties as counsel de officio meant enjoins every lawyer to devote his full attention,
rendering full meaning and reality to the constitutional diligence, skills, and competence to every case that he
precepts protecting the rights of the accused (People accepts. Pressure and large volume of legal work do
v. Ferrer, G.R. No. 148821, July 18, 2003). not excuse Atty. Dajoyag, Jr. for filing the petition for
A lawyer owes absolute fidelity to the cause of his The foregoing disqualification rule applies to
client. He owes his client full devotion to his interest, prospective clients of a lawyer. Matters disclosed by a
warm zeal in the maintenance and defense of his rights. prospective client to a lawyer are protected by the rule
on privileged communication even if the prospective
It demands of an attorney an undivided allegiance, a client does not thereafter retain the lawyer or the
conspicuous and high degree of good faith, latter declines the employment. It covers crimes and
disinterestedness, candor, fairness, loyalty, fidelity offenses already committed by the client.
and absolute integrity in all his dealings and
transactions with his clients and an utter renunciation The reason for this is to make the prospective client
of every personal advantage conflicting in any way, free to discuss whatever he wishes with the lawyer
directly or indirectly, with the interest of his client without fear that what he tells the lawyer will be
(Oparel Sr. v. Abaria, A.C. No. 959, July 30, 1971). divulged or used against him, and for the lawyer to be
equally free to obtain information from the
If they find that their clients cause is defenseless, then prospective client (CPR Annotated, PhilJA).
it is their bounden duty to advise the latter to
acquiesce and submit rather than to traverse the Requisites of privileged communication
incontrovertible (Rollon v. Atty. Naraval, A.C. No. 6424,
Mar. 4, 2005). 1. There is attorney-client relationship or a kind of
consultancy requirement with a prospective
CONFIDENTIALITY RULE client;
2. The communication was made by the client to the
Confidentiality lawyer in the course of the lawyers professional
employment; and
It means the relation between lawyer and client or 3. The communication must be intended to be
guardian and ward, or between spouses, with regard confidential.
to the trust that is placed in the one by the other
(Blacks Law Dictionary 7th Edition 1990, 2004). NOTE: The party who avers that the communication is
privileged has the burden of proof to establish the existence
A lawyer shall preserve the confidences and secrets of of the privilege unless from the face of the document itself,
his client even after the attorney-client relation is it clearly appears that it is privileged. The mere allegation
that the matter is privileged is not sufficient (People v.
terminated (CPR, Canon 21).
Sleeper, G.R. No. 22783, Dec. 3, 1924; Lapena Jr., 2009).
By conducting a conflict search, the lawyer will be able NOTE: What is material in determining whether there is a
conflict of interest in the representation is probability, not
to determine, in the first instance, if he is barred from
certainty of conflict. (see discussion on disqualification or
accepting the representation through conflicts with his limitation of public officials in practicing law, congruent-
present clients or the lawyers own interest (CPR interest representation conflict and adverse-interest
Annotated, PhilJA). conflict).
Being a counsel-of-record of the other party is not a However, at a certain stage of the controversy before
requisite to be guilty of representing conflicting it reaches the court, a lawyer may represent
interests conflicting interests with the consent of the parties. A
common representation may work to the advantage of
To be guilty of representing conflicting interests, a said parties since a mutual lawyer, with honest
counsel-of-record of one party need not also be motivations and impartially cognizant of the parties'
counsel-of-record of the adverse party. He does not disparate positions, may well be better situated to
have to publicly hold himself as the counsel of the work out an acceptable settlement of their differences,
adverse party, nor make his efforts to advance the being free of partisan inclinations and acting with the
adverse party's conflicting interests of record --- cooperation and confidence of said parties. A lawyer is
although these circumstances are the most obvious entitled to have and receive the just and reasonable
and satisfactory proof of the charge. It is enough that compensation for services rendered at the special
the counsel of one party had a hand in the preparation instance and request of his client and as long as he is
of the pleading of the other party, claiming adverse honestly and in good faith trying to serve and
and conflicting interests with that of his original client. represent the interests of his client, the latter is bound
To require that he also be counsel-of-record of the to pay his just fees (Dee v. Court of Appeals, G.R. No.
adverse party would punish only the most obvious 77439, Aug. 24, 1989).
form of deceit and reward, with impunity, the highest
form of disloyalty (Artueza v. Atty. Maderazo, A.C. No. Rule when the lawyer of the corporation and the
4354, Apr. 22, 2002). board of directors of such corporation is the same
Q: Mr. X and his father went to the residence of Atty. The interest of the corporate client is paramount and
Y to seek his advice regarding the problem of the should not be influenced by any interest of the
alleged indebtedness of Mr. X's brother to Caesar's individual corporate officials. A lawyer engaged as
Palace, a well-known gambling casino at Las Vegas. counsel for a corporation cannot represent members
Atty. Y assured Mr. X and his father that he would of the same corporation's Board of Directors in a
inquire into the matter, after which his services were derivative suit brought against them. To do so would
reportedly contracted for P100,000. 00. Several long be tantamount to representing conflicting interests
distance telephone calls and two trips to Las Vegas by which is prohibited by the Code of Professional
him elicited the information that indeed Mr. X's Responsibility (Hornilla v. Atty. Salunat, A.C. No. 5804,
brother has an outstanding account to Caesars but July 1, 2003).
further investigations revealed that said account had
actually been incurred by Ramon Sy, with Mr. X's Q: Six months ago, Atty. Z was consulted by A, about
brother merely signing for the chits. Atty. Y a four-door apartment in Manila left by her deceased
personally talked with the president of Caesar's parents. A complained that her two siblings, B and C,
Palace and convinced the latters president to go who were occupying two units of the apartment,
after Sy instead to which the latter agreed with the were collecting the rentals from the other two units
condition that Atty. Y should first convince Sy to pay and refusing to give her any part thereof. Atty. Z
the indebtedness to which Atty. Y succeeded. He was advised A to first seek the intervention of her
able to free Mr. X's brother from his indebtedness. relatives and told her that if this failed, he would take
Having thus settled the account of Mr. X's brother, legal action as A asked him to do. B asks Atty. Z to
Atty. Y sent several demand letters to Mr. X defend him in a suit brought by A against him (B) and
demanding the balance of P50,000.00 as attorney's C through another counsel. Should Atty. Z accept the
fees. Mr. X, however, ignored these, thus, Atty. Y filed case?
a complaint against Mr. X for the collection of
attorney's fees and refund of transport fare and other A: No. When A consulted him about her complaint
expenses. Mr. X claimed, that at the time Atty. Y was against B and C, a lawyer-client relationship was
rendering services to Mr. X, he was actually working created between A and Atty. Z. Atty. Z cannot
"in the interest" and "to the advantage" of Caesar's subsequently represent B against A in a matter he was
Palace of which he was an agent and a consultant. consulted about. This constitutes conflict of interest. It
This being the case, Atty. Y is not justified in claiming does not matter if Atty. Z is not handling the case for
that he rendered legal services to Mr. X in view of the A.
conflicting interests involved. Did the Atty. Y violate
the conflict of interest rule? Q: Should Atty. Z tell B that A consulted him earlier
about the same case? Why? (2002 Bar Question)
A: No. Generally, an attorney is prohibited from
representing parties with contending positions.
UNIVERSITY OF SANTO TOMAS
2014 GOLDEN NOTES
54
DUTIES AND RESPONSIBILITIES OF A LAWYER
A: Yes. Rule 21.07 of the CPR provides that "a lawyer set aside;
shall not reveal that he has been consulted about a 3. The attorneys right to Fees may be defeated if
particular case except to avoid possible conflict of found to be related to such conflict and such was
interest. In this case, he has to reveal to B that he had objected to by the former client, or if there was a
been consulted by A on the case that B if offering to concealment and prejudice by reason of the
retain his services, in order to avoid a possible conflict attorneys previous professional relationship with
of interest. the opposite party;
4. A lawyer can be held Administratively liable
Rule 15.03, Canon 15 through disciplinary action and may be held
A lawyer shall not represent conflicting interests Criminally liable for betrayal of trust.
except by written consent of all concerned given
after a full disclosure of the facts. Q: Huey Company and Dewey Corporation are both
retainer clients of Atty. Anama. He is the corporate
secretary of Huey Company. He represents Dewey
GR: An attorney cannot represent diverse interests. It
Corporation in three pending litigation cases. Dewey
is highly improper to represent both sides of an issue.
Corporation wants to file a civil case against Huey
The proscription against representation of conflicting
Company and has requested Atty. Anama to handle
interest finds application where the conflicting
the case. What are the options available to Atty.
interest arise with respect to the same general matter
Anama? Explain your answer.
and is applicable however slight such adverse interest
may be. It applies although the attorneys intention A:
and motives were honest and he acted in good faith. 1. To decline the case because to do so will constitute
representing conflicting interests. It is unethical for a
XPN: Representation of conflicting interest may be lawyer to represent a client in a case against another
allowed where the parties consent to the client in the same case.
representation after full disclosure of facts (Nakpil v. 2. To accept to file the case against Huey Company,
Valdez, A.C. No. 2040, Mar. 4, 1998). after full disclosure to both retained clients and upon
their express and written consent. The written consent
NOTE: A lawyer may at a certain stage of the controversy and
may free him from the charge of representing
before it reaches the court represent conflicting interests
with the express written consent of all parties concerned
conflicting interests, because written consent
given after disclosure of the facts. The disclosure should amounts to a release by the clients of the lawyers
include an explanation of the effects of the dual obligation not to represent conflicting interests.
representation, such as the possible revelation or use of
Q: If you were Atty. Anama, which option would you
confidential information.
take? Explain.
An attorney owes loyalty to his client not only in the case in
which he has represented him but also after relation of A: If I were Atty. Anama, I will choose the first option
attorney and client has terminated. and inhibit myself in the case as both entities are my
clients. The conflict of interests between the
Instances when lawyers cannot represent conflicting contending clients may reach such a point that,
interest even if the consent of both clients were notwithstanding their consent to the common
secured representation, the lawyer may be suspected of
disloyalty by one client. His continuing to act in a
Where the conflict is: double capacity strikes deeply in the foundation of the
1. Between the attorneys interest and that of a attorney-client relationship.
client; or
2. Between a private clients interests and that Rule 15.04, Canon 15
of the government or any of its A lawyer may, with the written consent of all
instrumentalities. concerned, act as mediator, conciliator or
arbitrator in setting the disputes.
Effects of representing adverse interests (DJ-FAC)
CANDID AND HONEST ADVICE TO CLIENTS influence any public official, tribunal or legislative
body.
Rule 15.05, Canon 15
A lawyer when advising his client, shall give a This rule is known as INFLUENCE-PEDDLING. It is
candid and honest opinion on the merits and improper for a lawyer to show in any way that he has
probable results of the clients case, neither connections and can influence any tribunal or public
overstating nor understating the prospects of the official, judges, prosecutors, congressmen and others,
case. especially so if the purpose is to enhance his legal
standing and to entrench the confidence of the client
Q: Consorcia Rollon went to the office of Atty. Camilo that his case or cases are assured of victory.
Naraval to seek his assistance in a case filed against
her by Rosita Julaton for Collection of Sum of Money Q: In a case for inhibition filed against Judge Paas, it
with Prayer for Attachment. After going over the was found that her husband, Atty. Renerio Paas, was
documents she brought with her, Atty. Naraval using his wife's office as his office address in his law
agreed to be her lawyer and she was required to pay practice. Judge Paas admitted that Atty. Paas did use
P8,000.00 for the filing and partial service fee. Atty. her office as his return address for notices and orders
Naraval did not inform her that the said civil suit has in 2 criminal cases, lodged at the Pasay City RTC, but
been decided against her and which judgment has only to ensure and facilitate delivery of those notices,
long become final and executory. but after the cases were terminated, all notices were
sent to his office address in Escolta. Was Atty. Paas
Atty. Naraval was not able to act on the case. Because act of using his wifes office as his office address
of this, Rollon wanted to withdraw the amount she unprofessional and dishonorable?
has paid and to retrieve the documents pertaining to
said case. Unfortunately, despite several follow-ups, A: Yes. By allowing Atty. Paas to use the address of her
Atty. Naraval always said that he cannot return the court in pleadings before other courts, Judge Paas had
documents because they were in their house, and indeed allowed her husband to ride on her prestige for
that he could not give her back the P8,000.00 because the purpose of advancing his private interest.
he has no money. Did Atty. Naraval fail to fulfill his
undertakings? Atty. Paas is guilty of simple misconduct because of
using a fraudulent, misleading, and deceptive address
A: Yes. Despite his full knowledge of the finality based that had no purpose other than to try to impress either
on the documents furnished to him, Atty. Naraval the court in which his cases are lodged, or his client,
withheld such vital information and did not properly that he has close ties to a member of the judiciary, in
appraise Rollon. He should have given her a candid and violation of the Code of Professional Responsibility.
honest opinion on the merits and the status of the case
The need for relying on the merits of a lawyer's case,
but he withheld such vital information. He did not
instead of banking on his relationship with a member
inform her about the finality of the adverse judgment.
of the bench which tends to influence or gives the
Instead, he demanded P8,000 as filing and service
appearance of influencing the court, cannot be
fee and thereby gave her hope that her case would
overemphasized. It is unprofessional and dishonorable,
be acted upon.
to say the least, to misuse a public office to enhance a
lawyer's prestige. Public confidence in law and lawyers
Rule 15.05 of the Code of Professional Responsibility
may be eroded by such reprehensible and improper
requires that lawyers give their candid and best
conduct (Paas v. Almarvez, A.M. No. P-03-1690, Apr. 4,
opinion to their clients on the merit or lack of merit of
2003).
the case, neither overstating nor understating their
evaluation thereof. Knowing whether a case would
COMPLIANCE WITH LAWS
have some prospect of success is not only a function,
but also an obligation on the part of lawyers. If they
find that their client's cause is defenseless, then it is Rule 15.07, Canon 15
their bounden duty to advise the latter to acquiesce A lawyer shall impress upon his client compliance
and submit, rather than to traverse the with the laws and the principle of fairness.
incontrovertible (Rollon v. Naraval, A.C. No. 6424, Mar.
4, 2005). Q: Maria Cielo Suzuki entered into contracts of sale
and real estate mortgage with several persons. The
Rule 15.06, Canon 15 sale and mortgage transactions were facilitated by
A lawyer shall not state or imply that he is able to Atty. Erwin Tiamson, counsel of the sellers. Suzuki
paid P80,000 as her share in the expenses for
UNIVERSITY OF SANTO TOMAS
2014 GOLDEN NOTES
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DUTIES AND RESPONSIBILITIES OF A LAWYER
registration. He retained in his possession the subject CLIENTS MONEYS AND PROPERTIES
deeds of absolute sale and mortgage as well as the
owner's copy of the title. However, he never Canon 16
registered the said documents and did not cause the A lawyer shall hold in trust all moneys and properties of
transfer of the title over the subject property in the his client that may come into his possession
name of Suzuki. Atty. Tiamson said that he did not
register the deed of sale to protect the interest of his
client and even if the same has been registered, he Money collected by the lawyer on a judgment
cannot give him the owner's duplicate copy until favorable to his client constitute trust funds and
purchase price for the subject property has been fully should be immediately paid over to the client. While
paid and the real estate mortgage cancelled. Is Atty. Section 37, Rule 138 of the Rules of Court grants the
Tiamson justified in not registering the transaction? lawyer a lien upon the funds, documents and papers
of his client, which have lawfully come into his
A: No. Rule 15.07 obliges lawyers to impress upon possession, such that he may retain the same until his
their clients compliance with the laws and the lawful fees and disbursements have been paid, and
principle of fairness. To permit lawyers to resort to apply such funds to the satisfaction thereof, the lawyer
unscrupulous practices for the protection of the still has the responsibility to promptly account to his
supposed rights of their clients is to defeat one of the client for such moneys received. Failure to do so
purposes of the State, the administration of justice. constitutes professional misconduct.
While lawyers owe their entire devotion to the interest
of their clients and zeal in the defense of their client's The lawyers failure to turn over such funds, moneys,
right, they should not forget that they are, first and or properties to the client despite the latters demands
foremost, officers of the court, bound to exert every give rise to the presumption that the lawyer had
effort to assist in the speedy and efficient converted the money for his personal use and benefit.
administration of justice. The client's interest is amply This failure also renders the lawyer vulnerable to
protected by the real estate mortgage executed by judicial contempt under Section 25, Rule 138 of the
complainant. Thus, Atty. Tiamson failed to live up to Rules of Court (CPR Annotated, PhilJA).
this expectation (Suzuki v. Tiamson, A.C. No. 6542,
Sept. 30, 2005). Q: Luis de Guzman as defendant in a civil case,
obtained an adverse judgment. His counsel was Atty.
CONCURRENT PRACTICE OF ANOTHER PROFESSION Emmanuel Basa. He wants to challenge the decision
through a petition for certiorari. It was agreed that
Luis will pay P15,000 for said legal service. Atty. Basa
Rule 15.08, Canon 15
collected a down payment of P5,000. However, no
A lawyer who is engaged in another profession or
such petition was filed. He did not seasonably file
occupation concurrently with the practice of law
with the CA the required appellants brief resulting in
shall make clear to his client whether he is acting
the dismissal of the appeal. Despite several
as a lawyer or in another capacity.
extensions to file the appellants brief, Atty. Basa
failed to do so. Instead, he filed two more motions for
This rule is intended to avoid confusion; it is for the
extension. When he filed the appellants brief, it was
benefit of both the client and the lawyer (Funa, 2009).
late, being beyond the last extension granted by the
appellate court. Was Atty. Emmanuel Basa negligent
NOTE: The lawyer should inform the client when he is acting
as a lawyer and when he is not, because certain ethical in the performance of his professional duty to Luis de
considerations governing the client-lawyer relationship may Guzman?
be operative in one case and not in the other (Report of the
IBP Committee, p.84). A: Yes, he is guilty of gross misconduct. Where a client
gives money to his lawyer for a specific purpose, such
A partys engagement of his counsel in another capacity as to file an action or appeal an adverse judgment, the
concurrent with the practice of law is not prohibited, so long lawyer should, upon failure to take such step and
as the roles being assumed by such counsel is made clear to spend the money for it, immediately return the money
the client (New Sampaguita Builder Construction, Inc. v. to his client. His unjustified withholding of Luis money
Philippine National Bank, G.R. No. 148753, July 30, 2004).
is a gross violation of the general morality and
professional ethics (De Guzman v. Atty. Emmanuel
Basa, A.C. No. 5554, June 29, 2004).
Prohibition of a Lawyer acquiring client property client. The relation between attorney and client is
highly fiduciary in nature. Being such, it requires
Pursuant to Canon 16 of the Code of Professional utmost good faith, loyalty, fidelity and
Responsibility. disinterestedness on the part of the attorney. Its
fiduciary nature is intended for the protection of the
Furthermore, Article 1491 of the Civil Code states that: client (Espiritu vs. Ulep, A.C. No. 5808, May 4, 2005).
The following persons cannot acquire
or purchase, even at public or judicial Fiduciary duty
auction, either in person or through the
mediation of another: The principle that an attorney derives no undue
xxx advantage that may operate to the prejudice or cause
(5) lawyers, with respect to the property an occasion for loss of a client. The relationship
and rights which may be the object of any between the lawyer and client is one of mutual trust
litigation in which they take part by virtue and confidence of the highest degree.
of their profession. (see NCC)
Instances when civil liability arises
NOTE: This prohibition is entirely independent of fraud and
such need not be alleged or proven. Art. 1491 (5) of the NCC 1. Client is prejudiced by lawyer's negligence or
applies only if the sale or assignment of the property takes misconduct;
place during the pendency of the litigation involving the
2. Breach of fiduciary obligation;
clients property (Ramos v. Ngaseo, A.C. No. 6210, Dec. 9,
3. Civil liability to third persons;
2004).
4. Libelous words in pleadings;
FIDUCIARY RELATIONSHIP 5. violation of communication privilege;
6. Liability for costs of suit (Treble Costs) when
lawyer is made liable for insisting on client's
Rule 16.01, Canon 1
patently unmeritorious case or interposing appeal
A lawyer shall account for all money or property
merely to delay litigation
collected or received for or from the client.
Remedy of the client
A lawyer must be scrupulously careful in handling
money entrusted to him in his professional capacity, Recover property from lawyer, together with its fruits,
because of the high degree of fidelity and good faith subject to clients returning to his lawyer the purchase
expected on his part (Medina v. Bautista, A.C. No. 190, price thereof and the legal interests thereon.
Sept. 26, 1964).
Exemption from liability
Lawyers inexcusable act of withholding the property
of client and imposing unwarranted fees in exchange A lawyer is exempted from liability for slander, libel or
for release of documents deserve the imposition of for words otherwise defamatory, published in the
disciplinary action (Miranda v. Carpio, A.C. No. 6281, course of judicial proceedings, provided the
September 26, 2011). statements are connected with, relevant, pertinent
and material to the cause in hand or subject of inquiry.
Q: X sought assistance to the President of the IBP to
enable him to talk to Atty. U who had allegedly been NOTE: Test of relevancy The matter to which the privilege
avoiding him for more than a year. Atty. U failed to does not extend must be palpably wanting in relation to the
turnover to his client the amount given to him by X subject of controversy, that no reasonable man can doubt its
as settlement for a civil case. Is Atty. U guilty for relevancy or propriety.
violating Canon 16 of the Code of Professional
Responsibility? Criminal liability of lawyers
A: Yes. The Code of Professional Responsibility A lawyer may be held criminally liable if he commits
mandates every lawyer to hold in trust all money and any of the following:
properties of his client that may come into his 1. Causing prejudice to the client thru malicious
possession. A lawyers failure to return upon demand breach of professional duty or thru inexcusable
the funds or property held by him on behalf of his negligence or ignorance;
client gives rise to the presumption that he has
appropriated the same for his own use to the prejudice 2. Revealing clients secrets learned in lawyers
of, and in violation of the trust reposed in him by, his professional capacity thru malicious breach of
professional duty or inexcusable negligence or
UNIVERSITY OF SANTO TOMAS
2014 GOLDEN NOTES
58
DUTIES AND RESPONSIBILITIES OF A LAWYER
Rule 16.02, Canon 16 NOTE: While this rule provides that the lawyer has the right
A lawyer shall keep the funds of each client to retain the funds of his client as may be necessary to satisfy
separate and apart from his own and those of his lawful fees and disbursements known as attorneys lien
others kept by him. and his lien to the same extent on all judgments and
executions he has secured for his client called charging lien,
Failure of the lawyer to account all the funds and he is still duty bound to render an accounting of his
clients funds and property which may come into his
property of his client which may come into his
possession in the course of his professional employment In
possession would amount to misappropriation which the application of attorneys lien, a lawyer shall give notice
may subject him to disbarment on the ground of grave to his client otherwise, the same might be construed as
misconduct or a criminal prosecution for estafa under misappropriation which may subject him to disciplinary
Art. 315, par. 1(b) of the RPC. action (Antiquiera, 2007).
Q: BPI filed two complaints for replevin and damages Q: Fernandez engaged the services of Atty. Cabrera II
against Esphar Medical Center Inc. and its President to handle the cases of her associates in Baguio City.
Cesar Espiritu. Espiritu engaged the services of Atty. After taking hold of the records of the cases that
Juan Cabredo IV. While these cases were pending in Fernandez entrusted to him and after getting initially
court, the latter advised Esphar to remit money and paid for the services he would render, Atty. Cabrera
update payments to the bank through the trial court. II suddenly disappeared and could no longer be
located in his given address or in the addresses that GR: A lawyer is not allowed to lend money to his client.
Fernandez gathered. Did Atty. Cabrera II violate the
Code of Professional Responsibility when he XPN: When in the interest of justice, he has to advance
accepted the records and money of the complainant necessary expenses in a legal matter he is handling for
and thereafter failed to render his services? the client (CPR, Rule 16.04).
A: Yes. Acceptance of money from a client establishes NOTE: Prohibition from lending is intended to assure the
an attorney-client relationship and gives rise to the lawyers independent professional judgment, for if the
duty of fidelity to the client's cause. The Canons of lawyer acquires a financial interest in the outcome of the
case the free exercise of his judgment may be adversely
Professional Responsibility require that once an
affected
attorney agrees to handle a case, he should undertake
Q: Atty. Lozada was the retained counsel and legal
the task with zeal, care, and utmost devotion.
adviser of Frias to which all documents and titles of
Atty. Cabrera's action projects his appalling properties of the latter were entrusted to. Atty.
indifference to his client's cause and a brazen Lozada persuaded Frias to sell her house, the former
disregard of his duties as a lawyer. Not only did he fail acting as broker since she was in need of money. Dra.
to render service of any kind, he also absconded with San Diego, the prospective buyer then handed 2
the records of the cases with which he was entrusted. million in cash and 1 million in check and out of the 2
Then to top it all, he kept the money complainant paid million, Atty. Lozada took 1 million as her commission
to him. Such conduct is unbecoming of a member of without Frias consent. When Dra. San Diego backed
the bar, for a lawyer's professional and personal out from the sale, Frias tried to recover from Atty.
conduct must at all times be kept beyond reproach and Lozada the title to the property and other documents
above suspicion. The duty of a lawyer is to uphold the but Atty. Lozada started avoiding her. Dra. San Diego
integrity and dignity of the legal profession at all times. filed a case against Frias to return the 3 million she
This can only be done by faithfully performing the paid plus interest. Frias claimed that her failure to
lawyer's duties to society, to the bar, to the courts and return the money was because of Atty. Lozadas
to his clients (Fernandez v. Atty. Cabrera II, A.C. No. refusal to give back the 1 million she took as
5623, Dec. 11, 2003). commission. A case was filed by Frias against Atty.
Lozada but despite the favourable decision,
BORROWING OR LENDING respondent refused to return the money.
lawyer owes to the client the exercise of utmost accident, mistake or excusable negligence which will
prudence and responsibility in representation warrant a lifting of the order of default. As a general
(Fernandez v. Atty. Novero, A.C. No. 5394, Dec. 2, rule, a client is bound by the mistakes of his counsel;
2002). more so by the result of his own negligence
4. will Exert his best judgment in the prosecution competent or if he suffers from any disability, he
or defense of the litigation entrusted to him. has a duly appointed guardian or legal
(Islas v. Platon, G.R. No. L-23183, Dec. 29, representative;
1924). 2. The party or his guardian, as the case may be, is
aware of the attorneys representation; and
Authority to appear in court is presumed 3. He fails to promptly repudiate assumed authority.
The lawyers duty to his client does not mean freedom Duty of the lawyer in gathering information regarding
to set up false or fraudulent claims especially with the case
respect to provisions of law or administrative rules and
that while lawyers are bound to exert utmost legal skill The lawyer cannot entirely depend on the information
in prosecuting their clients cause or defending it, their his client gave or the time his client wished to give. The
duty, first and foremost, is to the administration of lawyer should take more control over handling the
justice (CPR Annotated, PhilJA). case. Where the client is based overseas, the lawyer
should with more reason, have moved to secure all the
NOTE: It is an unethical tactic for a lawyer to offer monetary legal means available to him either to continue
rewards to anyone who could give him information against a representing his client effectively or to make the
party so that he could have leverage against all actions necessary manifestation in court, with the clients
involving such party (CPR Annotated, PhilJA).
conformity, that he was withdrawing as counsel of
record (CPR Annotated, PhilJA).
PROCEDURE IN HANDLING THE CASE
Appearance
Rule 19.03, Canon 19
A lawyer shall not allow his client to dictate the It is the coming into court as a party either as a plaintiff
procedure in handling the case. or as a defendant and asking relief therefrom.
1. As to matters of procedure - it is the client who yields 1. General appearance When a party comes to
to the lawyer and not the lawyer yielding to the client court either as plaintiff or defendant and seeks
(Lapena 2009). general reliefs from the court for satisfaction of
his claims or counterclaims respectively.
NOTE: The basis of this rule is that the lawyer is better 2. Special appearance When a defendant appears
trained and skilled in law. in court solely for the purpose of objecting to the
jurisdiction of the court over his person.
2. As to subject matter - the client is in control.
NOTE: By virtue of Sec. 20, Rule 14 of the 1997 Rules of Civil
NOTE: Cause of action, claim or demand, and subject of Procedure, there is no more distinction between general
litigation are within clients control. Proceedings to appearance and special appearance, in the sense that a
enforce the remedy are within the exclusive control of defendant may file a motion to dismiss not only on the
the attorney. ground of lack of jurisdiction over his person but also on
some other grounds without waiving the jurisdiction of the
Authority of counsel to compromise court over his person.
GR: The attorney has no authority to compromise his Entry of appearance v. Appearance of counsel
clients case. This is so because the client, even if
represented by counsel, retains exclusive control over Entry of appearance is the written manifestation
the subject matter of the litigation. The client can, of submitted by the counsel of record to inform the court
course, authorize his lawyer to compromise his case, that he will act as the counsel of a party made before
and the settlement made by the lawyer will bind his the date of the hearing while appearance is the verbal
client. manifestation of the counsel in order for the court to
recognize his presence during the hearing of the case.
XPNs: (Sec.21, Rule 138, Rules of Court).
1. When the lawyer is confronted with an
emergency where prompt and urgent action is
necessary to protect the interest of his client and ATTORNEYS FEES
there is no opportunity for consultation with the (1990, 1991, 1992, 1994, 1995, 1997, 1998, 2005,
latter. 2006, 2007 Bar Questions)
2. Settlement of Monetary Obligation to client is full
payment in cash. Canon 20
A lawyer shall charge only fair and reasonable
NOTE: Compromise is a contract whereby the parties, by
fees
making reciprocal concessions, avoid litigation or put an end
to one already commenced (NCC, Art. 2028).
GR: Only lawyers are entitled to attorneys fees. The Kinds of payment
same cannot be shared with a non-lawyer. It is
unethical. 1. Fixed or absolute fee that which is payable
regardless of the result of the case.
XPNs: A lawyer may divide a fee for legal services with a. A fixed fee payable per appearance
persons not licensed to practice law: (CPR) b. A fixed fee computed upon the number of
1. A lawyer undertakes to Complete the hours spent
unfinished legal business of a deceased c. A fixed fee based on piece work
lawyer; d. Combination of any of the above
2. There is a Pre-existing agreement with a
partner or associate that, upon the latters 2. Contingent fee a fee that is conditioned on the
death, money shall be paid over a securing of a favorable judgment and recovery of
reasonable period of time to his estate or money or property and the amount of which may be
to persons specified in the agreement; on a percentage basis.
3. A lawyer or law firm includes non-lawyer
employees in Retirement plan, even if the Requisites for the accrual of attorneys fees
plan is based, in whole or in part, on a
profit-sharing agreement. (CPR, Rule 9.02) 1. Existence of attorney-client relationship; and
2. Rendition by the lawyer of services to the client.
NOTE: Entitlement to lawyers fees is presumed (Funa, 2009).
Unless otherwise expressly stipulated, rendition of NOTE: A pauper, while exempted from payment of legal fees
professional services by a lawyer is for a fee or compensation is not exempted from payment of attorneys fees (Cristobal
and is not gratuitous (Research and Services Realty, Inc. v. CA, v. Employees Compensation Commission, G.R. No. L-49280,
G.R. No. 124074, Jan. 27,1997). Feb. 26, 1981).
Rule 20.01, Canon 20 Factors in determining the attorneys fees (1994 Bar
A lawyer shall be guided by the following factors Question)
in determining his fees:
a. The time spent and the extent of the In determining what is fair and reasonable, a lawyer
service rendered or required; shall be guided by the following factors: (STIP-
b. The novelty and difficulty of the questions SNACCC)
involved; 1. Skill demanded;
c. The importance of the subject matter; 2. Time spent and the extent of the services
d. The skill demanded; rendered or required;
e. The probability of losing other 3. Importance of the subject matter;
employment as a result of acceptance of the 4. Probability of losing other employment as a
proffered case; result of acceptance of the proffered case;
f. The customary charges for similar services 5. Professional Standing of the lawyer;
and the schedule of fees of the IBP chapter to 6. Novelty and difficulty of the questions involved;
which he belongs; 7. Amount involved in the controversy and the
g. The amount involved in the controversy benefits resulting to the client from the services;
and the benefits resulting to the client from the 8. Customary Charges for similar services and the
service; schedule of fees of the IBP chapter to which he
h. The contingency or certainty of belongs;
compensation; 9. Contingency or certainty of compensation; and
i. The character of the employment, whether 10. Character of the employment, whether
occasional or established; and occasional or established. (Rule 20.01)
j. The professional standing of the lawyer.
NOTE: Imposition of interest in the payment of
NOTE: Generally, the amount of attorneys fees due is that attorneys fees is not justified (Funa, 2009).
stipulated in the retainer agreement which is conclusive as
to the amount of lawyers compensation (Funa, 2009) unless Contracts for attorneys services in this jurisdiction stands
the stipulated amount in the written contract is found by the upon an entirely different footing from other contract for the
court to be unconscionable or unreasonable (Sec. 24, Rule payment of compensation for any other services (Mambulao
138, RRC). In the absence thereof, the amount of attorneys Lumber Co. v. Philippine National Bank, 130 Phil. 366).
fees is fixed on the basis of quantum meruit (Sesbreno v.
Court of Appeals, G.R. No. 117438, June 8,1995; Funa, 2009). NOTE: No court shall be bound by the opinion of attorneys
as expert witnesses as to the proper compensation, and may
negligence can be attributed to the Atty. Jack. Rose still supervision and close scrutiny of the court in order
owes payment of acceptance fee because she only that clients may be protected from just charges. Its
paid 51, 716.54. validity depends on the measure of reasonableness of
the stipulated fees under the circumstances of the
An acceptance fee is not a contingent fee, but is an case. Stipulated attorneys fees must not be
absolute fee arrangement which entitles a lawyer to unconscionable wherein the amount is by far so
get paid for his efforts regardless of the outcome of disproportionate compared to the value of the
the litigation. Dissatisfaction from the outcome of the services rendered as to amount to fraud perpetrated
cases would not render void the retainer agreement to the client (Sesbreno vs. CA, G.R. No. 117438, June 8,
for Atty. Jack appears to have represented the interest 1995).
of Rose (Yu v Bondal, A.C. No. 5534, Jan. 17, 2005).
Q: The stipulation between the lawyer and counsel is
NOTE: The expiration of the retainer contract between the as follows, the attorneys fees of the Atty. X will be
parties during the pendency of the labor case does not of whatever the client might recover from his share
extinguish the respondents right to attorneys fees (Uy v. in the property subject of the litigation. Is the
Gonzales, A.C. No. 5280, Mar. 30, 2004).
stipulation valid?
CONTINGENCY FEE ARRANGEMENTS A: Yes. The stipulation made is one of a contingent fee
which is allowed by the CPE and the CPR. It does not
Contingency fee contract violate the prohibition of acquisition of property
subject of the litigation by the lawyer provided for in
One which stipulates that the lawyer will be paid for the Civil Code since the prohibition applies only to a
his legal services only if the suit or litigation ends sale or assignment to the lawyer by his client during
favorably to the client (Taganas vs. NLRC, G.R. No. the pendency of the litigation. The transfer actually
118746, September 7, 1995). It is like a contract takes effect after the finality of the judgment and not
subject to a suspensive condition wherein the during the pendency of the case. As such it is valid
obligation to pay the counsel is based upon the stipulation between the lawyer and client.
outcome of the case.
Acceptance of an initial fee before or during the
Contingent fees are sanctioned by the CPE and by the progress of the litigation detract from the contingent
CPR subject to certain limitations (Licudan vs. CA, G.R. nature of the fees
No. 91958, January 24, 1991).
NOTE: If a lawyer employed on contingent basis dies or The acceptance of an initial fee before or during the
becomes disabled before the final adjudication or progress of the litigation does not detract from the
settlement of the case has been obtained, he or his estate contingent nature of the fees, as long as the bulk
will be allowed to recover the reasonable value of the thereof is made dependent upon the successful
services rendered. The recovery will be allowed only after outcome of the action (Francisco vs. Matias, January
the successful termination of the litigation in the clients 31, 1964, G.R. No. L-16349).
favor (Morton v. Forsee, Ann. Cas. 1914 D. 197; Lapena,
2009, Pineda, 2009).
Q: Chester asked Laarni to handle his claim to a
sizeable parcel of land in Quezon City against a well-
Rationale for contingent fee contracts known property developer on a contingent fee basis.
Laarni asked for 15% of the land that may be
Contracts of this nature (contingent fee contract) are recovered or 15% of whatever monetary settlement
permitted because they redound to the benefit of the that may be received from the property developer as
poor client and the lawyer especially in cases where her only fee contingent upon securing a favorable
the client has meritorious cause of action, but no final judgment or compromise settlement. Chester
means with which to pay for the legal services unless signed the contingent fee agreement. Assume the
he can, with the sanction of law, make a contract for a property developer settled the case after the case
contingent fee to be paid out of the proceeds of the was decided by the Regional Trial Court in favor of
litigation (Francisco, 1949) Chester for P1 Billion. Chester refused to pay Laarni
P150 Million on the ground that it is excessive. Is the
Limitation of the stipulation regarding contingent fee refusal justified? Explain.
contract
A: The refusal of Chester to pay is unjustified. A
It must be reasonable based on the circumstance of contingent fee is impliedly sanctioned by Rule 20.01(f)
the case. Contingent fee contracts are under the
UNIVERSITY OF SANTO TOMAS
69 FACULTY OF CIVIL LAW
Legal Ethics
of the CPR. A much higher compensation is allowed as A: No. Art. 111. Attorney's fees. (a) In cases of unlawful
contingent fees is consideration of the risk that the withholding of wages, the culpable party may be
lawyer will get nothing if the suit fails. In several cases, assessed attorney's fees equivalent to ten percent of
the Court has indicated that a contingent fee of 30% of the amount of the wages recovered. Contrary to
the money or property that may be recovered is Evangelinas proposition, Article 111 of the Labor Code
reasonable. Moreover, although the developer settled deals with the extraordinary concept of attorneys fees.
the case, it was after the case was decided by the RTC It regulates the amount recoverable as attorney's fees
in favor of Chester, which shows that Atty. Laarni has in the nature of damages sustained by and awarded to
already rendered service to the client. the prevailing party. It may not be used as the standard
in fixing the amount payable to the lawyer by his client
Q: Assume there was no settlement and the case for the legal services he rendered.
eventually reached the Supreme Court which
promulgated a decision in favor of Chester. This time In this regard, Section 24, Rule 138 of the Rules of
Chester refused to convey to Laarni 15% of the Court should be observed in determining Atty. Gos
litigated land as stipulated on the ground that the compensation. The said Rule provides:
agreement violates Article 1491 of the Civil Code,
which prohibits lawyers from acquiring by purchase Sec. 24. Compensation of attorneys; agreement as to
properties and rights, which are the object of fees. An attorney shall be entitled to have and recover
litigation in which they take part by reason of their from his client no more than a reasonable
profession. Is the refusal justified? Explain. (2008 Bar compensation for his services, with a view to the
Question) importance of the subject matter of the controversy,
the extent of the services rendered, and the
A: Chesters refusal is not justified. A contingent fee professional standing of the attorney. No court shall be
arrangement is not covered by Art.1491 of the Civil bound by the opinion of attorneys as expert witnesses
Code, because the transfer or assignment of the as to the proper compensation, but may disregard such
property in litigation takes effect only upon finality of testimony and base its conclusion on its own
a favorable judgment. (Director of Lands v. Ababa, No. professional knowledge. A written contract for services
L-26096, Feb. 27, 1979); (Macariola v. Asuncion, A.C. shall control the amount to be paid therefor unless
No. 133-J, May 31, 1982). found by the court to be unconscionable or
unreasonable.
Q: Evangelina Masmuds husband, the late Alexander,
filed a complaint against his employer for non- The retainer contract between Atty. Go and
payment of permanent disability benefits, medical Evangelina provides for a contingent fee. The contract
expenses, sickness allowance, moral and exemplary shall control in the determination of the amount to be
damages, and attorneys fees. He engaged the paid, unless found by the court to be unconscionable
services of Atty. Go, as his counsel and agreed to pay or unreasonable. The criteria found in the Code of
attorneys fees on a contingent basis, as follows: 20% Professional Responsibility are also to be considered in
of total monetary claims as settled or paid and an assessing the proper amount of compensation that a
additional 10% in case of appeal. The Labor Arbiter lawyer should receive (CPR, Canon 20, Rule 20.01;
granted the monetary claims of Alexander. Evangelina Masmud v. NLRC, et. al., G.R. No. 183385,
Eventually, after several appeals, the decision being Feb. 13, 2009).
favorable to Evangelina (substituted her deceased
husband), the decision became final and executory. Champertous contract
Upon motion of Atty. Go, the surety company
delivered to the NLRC Cashier, the check amounting Is one where the lawyer stipulates with his client in the
to P3,454,079.20. Thereafter, Atty. Go moved for the prosecution of the case that he will bear all the
release of the said amount to Evangelina. Out of the expenses for the recovery of things or property being
said amount, Evangelina paid Atty. Go the sum of claimed by the client, and the latter agrees to pay the
P680,000.00. Dissatisfied, Atty. Go filed a motion to former a portion of the thing or property recovered as
record and enforce the attorneys lien alleging that compensation. It is void for being against public policy
Evangelina reneged on their contingent fee (like gambling).
agreement. Evangelina manifested that Atty. Gos
claim for attorneys fees of 40% of the total monetary NOTE: A champertous contract is considered void due to
award was null and void based on Article 111 of the public policy, because it would make him acquire a stake in
Labor Code. Is her contention correct? the outcome of the litigation which might lead him to place
his own interest above that of the client (Bautista v. Gonzales,
A.M. No. 1625, Feb. 12, 1990).
As to Coverage Covers papers, Covers all executions issued in pursuance of such judgments,
documents, and judgments for which he has secured in a litigation of his client, from
properties in the payment of and after the time when the records of the court
the lawful money and rendering such judgment or issuing such execution.
possession of execution
the attorney by issued in FEES AND CONTROVERSIES WITH CLIENTS
reason of his pursuance of
professional such judgment. Rule 20.02, Canon 20
employment. A lawyer shall, in cases of referral, with the
As to Effect As soon as the As soon as the consent of the client, be entitled to a division of
attorney gets claim for fees in proportion to the work performed and
possession of attorneys fees responsibility assumed.
papers, had been
documents, or entered into This is not in the nature of a brokers commission.
property. the records of
the case. Lawyer-referral system
As to May be Generally,
Applicability exercised exercised only Under this system, if another counsel is referred to the
before when the client, and the latter agrees to take him as
judgment or attorney had collaborating counsel, and there is no express
execution or already secured agreement on the payment of attorneys fees, the said
regardless a favorable counsel will receive attorneys fees in proportion to
thereof. judgment for the work performed and responsibility assumed. The
his client. lawyers and the client may agree upon the proportion
As to When When client but in case of disagreement, the court may fix the
Extinguishment possession loses action as proportional division of fees (Lapena, 2009).
lawfully ends as lien may only
when lawyer be enforced Rule 20.03
voluntarily against A lawyer shall not, without the full knowledge and
parts with judgment consent of the client, accept any fee, reward,
funds, awarded in costs, commission, interest, rebate or forwarding
documents, and favor of client, allowance or other compensation whatsoever
papers of client proceeds related to his professional employment from
or offers them thereof/execut anyone other than the client. (1997, 2003 Bar
as evidence. ed thereon. Questions)
Q: Upon being replaced by Justice C, Atty. B, the It is intended to secure the fidelity of the lawyer to
former counsel of the parents of the victims of the his clients cause and to prevent a situation in which
OZONE Disco tragedy, was directed to forward all the the receipt by him of a rebate or commission from
documents in his possession to Justice C. Atty. B another with the clients business may interfere with
refused, demanding full compensation pursuant to the full discharge of his duty to his client. (Report of
their written contract. Sensing that a favorable the IBP Committee)
judgment was forthcoming, Atty. B filed a motion in
court relative to his attorneys fees, furnishing his GR: Fees shall be received from the client only.
former clients with copies thereof. Is Atty. B legally
and ethically correct in refusing to turn over the XPN: A lawyer may receive compensation from a
documents and in filing the motion? Explain. (1996 person other than his client when the latter has full
Bar Question) knowledge and approval thereof (Sec. 20 (e), Rule 138).
A: Yes. He is entitled to a retaining lien which gives him
the right to retain the funds, documents and papers of
Rule 20.04, Canon 20
his client which have lawfully come to his possession
A lawyer shall avoid controversies with clients
until his lawful fees and disbursement have been paid concerning his compensation and shall resort to
(RRC, Sec. 37, Rule 138; CPR, Rule 16.03). He is also judicial action only to prevent imposition, injustice
legally and ethically correct in filing a motion in court
or fraud. (1998 Bar Question)
relative to his fees. He is entitled to a charging lien
upon all judgments for the paying of money, and
GR: A lawyer should avoid the filing of any case against
UNIVERSITY OF SANTO TOMAS
2014 GOLDEN NOTES
72
DUTIES AND RESPONSIBILITIES OF A LAWYER
a client for the enforcement of attorneys fees. proceeds to the judgment creditor and the lawyer
has not taken any legal step to have his fees paid
NOTE: The legal profession is not a money-making trade but directly to him from the judgment proceeds.
a form of public service. Lawyers should avoid giving the 7. Failure to exercise Charging Lien
impression that they are mercenary (Perez v. Scottish Union
and National Insurance Co., C.A. No. 8977, Mar. 22, 1946). It
might even turn out to be unproductive for him for potential Effects of the nullity of contract on the right to
clients are likely to avoid a lawyer with a reputation of suing attorneys fees
his clients.
If the nullification is due to:
XPNs: 1. The illegality of its object - the lawyer is
1. To prevent imposition precluded from recovering; and
2. To prevent injustice
3. To prevent fraud (CPR, Rule 20.04) 2. Formal defect or because the court has found
the amount to be unconscionable - the lawyer may
NOTE: A client may enter into a compromise agreement recover for any services rendered based on
without the intervention of the lawyer, but the terms of the quantum meruit.
agreement should not deprive the counsel of his
compensation for the professional services he had rendered. Kinds of lawyer according to services rendered and
If so, the compromise shall be subjected to said fees. If the the compensation they are entitled to
client and the adverse party who assented to the
compromise are found to have intentionally deprived the 1. Counsel de parte He is entitled to the reasonable
lawyer of his fees, the terms of the compromise, insofar as
attorneys fees agreed upon, or in the absence
they prejudice the lawyer, will be set aside, making both
parties accountable to pay the lawyers fees. But in all cases, thereof, on quantum meruit basis.
it is the client who is bound to pay his lawyer for his legal 2. Counsel de officio The counsel may not demand
representation (Atty. Gubat v. NPC, G.R. No. 167415, Feb. 26, from the accused attorneys fees even if he wins the
2010),
case. He may, however, collect from the
government funds, if available based on the
Ways on how lawyers claim attorney's fees
amount fixed by the court.
1. In the same case It may be asserted either in the 3. Amicus Curiae not entitled to attorneys fees.
very action in which the services of a lawyer had
been rendered or in a separate action. CONCEPTS OF ATTORNEYS FEES
2. In a separate civil action A petition for attorney's
fees may be filed before the judgment in favor of Two concepts of attorneys fees
the client is satisfied or the proceeds thereof
delivered to the client. 1. Ordinary attorney's fee The reasonable
compensation paid to a lawyer by his client for the
The determination as to the propriety of the fees or as legal services he has rendered to the latter (Pineda,
to the amount thereof will have to be held in abeyance 2009).
until the main case from which the lawyer's claim for
attorney's fees may arise has become final. Otherwise, NOTE: The basis for this compensation is the fact of his
the determination of the courts will be premature. employment by and his agreement with the client.
Instances when an independent civil action to 2. Extraordinary attorney's fee An indemnity for
recover attorneys fees is necessary damages ordered by the court to be paid by the
losing party in litigation.
1. Main action is dismissed or nothing is awarded;
2. Court has decided that it has no jurisdiction over NOTE: The basis for this is any of the cases provided for
by law where such award can be made, such as those
the action or has already lost it;
authorized in Article 2208 of the Civil Code, and is payable
3. Person liable for attorneys fees is not a party to the to the client, NOT to the lawyer unless they have agreed
main action; that the award shall pertain to the lawyer as additional
4. Court reserved to the lawyer the right to file a compensation or as part thereof.
separate civil suit for recovery of attorneys fees;
5. Services for which the lawyer seeks payment are
not connected with the subject litigation; and
6. Judgment debtor has fully paid all of the judgment
ORDINARY CONCEPT OF ATTORNEYS FEES at the back of the TCTs. DOY, for its part, filed several
petitions to set aside the RTC Orders involving the
Q: Aurora Pineda filed an action for declaration of award of attorneys fees. Eventually, CA rendered a
nullity of marriage against Vinson Pineda, who was decision, fixing Atty. Gabriel, Jr.s fees at P200,000.00
represented by Attys. Clodualdo de Jesus, Carlos and affirming the subsequent order of the RTC not to
Ambrosio and Emmanuel Mariano. The parties' annotate such award on the TCTs. Should the court
proposal for settlement regarding Vinson's visitation rely on the importance of the subject matter in
rights over their minor child and the separation of controversy and the professional standing of counsel
their properties was approved by the court. The in awarding attorneys fee?
marriage was subsequently declared null and void.
Throughout the proceedings counsels and their A: No. DOYs contention that the appellate court
relatives and friends, availed of free products and should also have taken into account the importance of
treatments from Vinsons dermatology clinic. This the subject matter in controversy and the professional
notwithstanding, they billed him additional legal fees standing of counsel in determining the latters fees is
amounting to P16.5 million which he, however, untenable. Although Rule 138 of the Rules of Court
refused to pay. Instead, he issued them several and Rule 20.01, Canon 20 of the Code of Professional
checks totaling P1.12 million as full payment for Responsibility lists several other factors in setting such
settlement. Still not satisfied, the three lawyers filed fees, these are mere guides in ascertaining the real
in the same court a motion for payment of lawyers' value of the lawyers service. Courts are not bound to
fees for P50 million, which is equivalent to 10% of the consider all these factors in fixing attorneys fees.
value of the properties awarded to Pineda in the case. While a lawyer should charge only fair and reasonable
Are their claim justified? fees, no hard and fast rule maybe set in the
determination of what a reasonable fee is, or what is
A: No. Clearly, what they were demanding was not. That must be established from the facts in each
additional payment for legal services rendered in the case (DOY Mercantile, Inc. v. AMA Computer College,
same case. Demanding P50 million on top of the G.R. No. 155311, Mar. 31, 2004).
generous sums and perks already given to them was
an act of unconscionable greed. They could not charge EXTRAORDINARY CONCEPT OF ATTORNEYS FEES
Pineda a fee based on percentage, absent an express
agreement to that effect. The payments to them in Rules on extraordinary concept of attorneys fees
cash, checks, free products and services from Pinedas
business more than sufficed for the work they did. The GR: Attorneys fees as damages are not recoverable.
full payment for settlement should have discharged An adverse decision does not ipso facto justify their
Vinson's obligation to them. award in favor of the winning party.
As lawyers, they should be reminded that they are XPNs: Attorneys fees in the concept of damages may
members of an honorable profession, the primary be awarded in any of the following circumstances:
vision of which is justice. It is the lawyers despicable 1. When there is an agreement;
behavior in the case at bar which gives lawyering a bad 2. When exemplary damages are awarded;
name in the minds of some people. The vernacular has 3. When defendants action or omission
a word for it: nagsasamantala. The practice of law is a compelled plaintiff to litigate;
decent profession and not a money-making trade. 4. In criminal cases of malicious prosecution
Compensation should be but a mere incident (Pineda a. Plaintiff was acquitted; and
v. de Jesus, G.R. No. 155224, Aug. 23, 2006). b. The person who charged him knowingly
made the false statement of facts or that
Q: DOY Mercantile Inc. refused to satisfy Atty. Gabriel, the filing was prompted by sinister
Jr.s attorneys fees, prompting the latter to file with design to vex him;
the RTC a Motion to Allow Commensurate Fees and 5. When the action is clearly unfounded;
to Annotate Attorneys Lien on certain TCTs. The RTC 6. When defendant acted in gross and evident
fixed Atty. Gabriel, Jr.s fees and ordered that a lien bad faith;
be annotated on the TCTs. A Writ of Execution was 7. In actions for support;
later issued by the trial court in Atty. Gabriel, Jr.s 8. In cases of recovery of wages;
favor. Upon Atty. Gabriel Jr.s motion for 9. In actions for indemnity under workmens
reconsideration, the RTC increased his fees. It then compensation and employees liability laws;
issued another Writ of Execution to enforce the new 10. In a separate civil action arising from a crime;
award but denied the Motion to Annotate the Award 11. When at least double costs are awarded
NOTE: An attorney cannot, without the consent of his client, Rule 21.06, Canon 21
be examined as to any communication made by the client to
A lawyer shall avoid indiscreet conversation about
him, or his advice given thereon in the course of, or with a
a clients affairs even with members of his family.
view to, professional employment, nor can an attorneys
secretary, stenographer, or clerk be examined, without the
consent of the client and his employer, concerning any fact
the knowledge of which has been acquired in such capacity
(RRC, Sec. 24(b), Rule 130).
Nikos problem. Did Atty. Henry violate any rule of Q: Atty. X was charged of violating Code of
ethics? Explain fully. (2008 Bar Question) Responsibility for representing conflicting interests
by accepting the responsibility of representing Mr. A
A: Atty. Henry violated Canon No. 21 of the CPR by in the cases similar to those in which he had
sharing information obtained from his client Niko with undertaken to represent Mr. D and his group,
Atty. Canonigo. Canon No. 20 provides that a lawyer notwithstanding that Mr. A was the very same person
shall preserve the confidences or secrets of his client whom Mr. D and his group had accused with Atty. Xs
even after the attorney-client relationship is legal assistance. He had drafted the demand letters
terminated. The fact that Atty. Canonigo is a friend and the complaint-affidavit that became the bases
from whom he intended to secure legal opinion on for the filing of the estafa charges against Mr. A.
Nikos problem, does not justify such disclosure. He Atty. X contends that his lawyer-client relationship
cannot obtain a collaborating counsel without the with Mr. D ended when he and his group entered into
consent of the client (CPR, Rule 18.01). the compromise settlement. Is his contention
correct?
On the other hand, Atty. Henry did not violate Canon
21 in sharing information with his partner Atty. Meyer. A: No. Atty. Xs contention is not correct. The lawyer-
Rule 21.04 of the CPR specifically provides that client relationship did not terminate as of the date of
a lawyer may disclose the affairs of a client of the firm compromise agreement, for the fact remained that he
to partners or associates thereof unless prohibited by still needed to oversee the implementation of the
the client. Atty. Henry was not prohibited from settlement as well as to proceed with the criminal
disclosing the affairs of Niko with the members of his cases until they were dismissed or otherwise
law firm. The employment of a member of a firm is concluded by the trial court. It is also relevant to
generally considered as employment of the firm itself indicate that the execution of a compromise
(Hilado v. David, G.R. No. L-961, Sept. 21, 1949). settlement in the criminal cases did not ipso
facto cause the termination of the cases not only
Privileged communication rule with regard to the because the approval of the compromise by the trial
identity of his client court was still required, but also because the
compromise would have applied only to the civil
GR: A lawyer may not invoke privileged aspect, and excluded the criminal aspect pursuant to
communication to refuse revealing a clients identity. Article 2034 of the Civil Code (Samson vs. Era, A.C. No.
6664, July 16, 2013).
XPNs:
1. When there is a strong possibility that revealing WITHDRAWAL OF SERVICES
the clients name would implicate the client in the very
Canon 22
activity for which he sought the lawyers advice;
A lawyer shall withdraw his services only for
2. When disclosure would open the client to civil
good cause and upon notice appropriate in the
liability;
cirtumstances.
3. When governments lawyers have no case against
an attorneys client and revealing the clients name
would furnish the only link that would come from the Right to withdraw
chain of testimony necessary to convict him.
GR: A lawyer lacks the unqualified right to withdraw
Reasons why a lawyer may not invoke privileged once he has taken a case. By his acceptance, he has
communication to refuse revealing a clients identity impliedly stipulated that he will prosecute the case to
conclusion. This is especially true when such
1. Due process considerations require that the withdrawal will work injustice to a client or frustrate
opposing party should know the adversary; the ends of justice.
2. The privilege pertain to the subject matter of the
relationship; XPNs: The right of a lawyer to retire from the case
3. The privilege begins to exist only after attorney- before its final adjudication, which arises only from:
client relationship has been established hence it does 1. The clients written consent; or
not attach until there is a client; and 2. By permission of the court after due notice and
4. The court has a right to know that the client hearing.
whose privileged information is sought to be
protected is flesh and blood. Instances when a lawyer may withdraw his services
without the consent of his client (FIC MOVIE)
1. When the client deliberately Fails to pay the fees for of his dismissal (quantum meruit).
the services or fails to comply with the retainer b. There is written agreement and the fee
agreement; stipulated is absolute and reasonable full
2. When the client pursues an Illegal or immoral payment of compensation.
course of conduct in connection with the matter he c. The fee stipulated is contingent.
is handling; d. If dismissed before the conclusion of the
3. When the lawyer finds out that he might be action - reasonable value of his services
appearing for a Conflicting interest; (quantum meruit)
4. When the Mental or physical condition of the e. If contingency occurs or client prevents its
lawyer renders it difficult for him to carry out the occurrence full amount.
employment effectively;
5. Other similar cases; NOTE: A lawyer should question his discharge otherwise he
6. When the client insists that the lawyer pursue will only be allowed to recover on quantum meruit basis.
conduct in Violation of these canons and rules;
7. When his Inability to work with co-counsel will not Limitations on clients right to discharge the services
promote the best interest of the client; and of his lawyer
8. When the lawyer is Elected or appointed to a public
office (CPR, Rule 22.01). 1. When made with justifiable cause, it shall
negate the attorneys right to full payment of
Procedure to follow when withdrawal is without compensation.
clients consent 2. The attorney may, in the discretion of the court,
intervene in the case to protect his right to fees.
1. File a petition for withdrawal in court. 3. A client may not be permitted to abuse his right to
2. Serve a copy of this petition upon his client and the discharge his counsel as an excuse to secure
adverse party at least 3 days before the date set for repeated extensions of time to file a pleading or
hearing. to indefinitely avoid a trial.
NOTE: He should present his petition well in advance of the Conditions for substitution of counsel
trial of the action to enable the client to secure the services
of another lawyer. 1. Written application
2. Written consent of the client
If the application is filed under circumstances that do not 3. Written consent of the attorney to be substituted,
afford a substitute counsel sufficient time to prepare
or in the absence thereof, proof of service of
for trial or that work prejudice to the clients cause, the
notice of said motion to the attorney to be
court may deny his application and require him to conduct
the trial. substituted in the manner prescribed by the rules.
A lawyer should not presume that the court will grant his Heavy workload as excuse for withdrawal as counsel
petition for withdrawal. Until his withdrawal shall have been
proved, the lawyer remains counsel of record who is Standing alone, heavy workload is not sufficient
expected by his client as well as by the court to do what the reason for the withdrawal of a counsel. When a lawyer
interests of his client require. accepts to handle a case, whether for a fee or gratis et
amore, he undertakes to give his utmost attention,
Q: Can a client discharge the services of his lawyer skill and competence to it regardless of its significance.
without a cause? (1994, 1997, 1998 Bar Question) Failure to fulfill his duties will subject him to grave
administrative liability as a member of the Bar (Ceniza
A: Yes. A client has the right to discharge his attorney v. Atty. Rubia, A.C. No. 6166, October 2, 2009).
at any time with or without a cause or even against his
consent.
Rule 22.01, Canon 22
A lawyer may withdraw his services in any of the
1. With just cause lawyer is not necessarily
following case:
deprived of his right to be paid for his services. He
a. When the client pursues an illegal or immoral
may only be deprived of such right if the cause for
course of conduct in connection with the matter
his dismissal constitutes in itself a sufficient legal
he is handling;
obstacle to recovery.
b. When the client insists that the lawyer pursue
2. Without just cause
conduct violative of these canons and rules;
a. No express written agreement as to fees -
c. When the inability to work with co- counsel will
reasonable value of his services up to the date
not promote the best interest of the client;
UNIVERSITY OF SANTO TOMAS
2014 GOLDEN NOTES
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DUTIES AND RESPONSIBILITIES OF A LAWYER
d. When the mental or physical condition of the Q: Was the motion for relief as counsel made by the
lawyer renders it difficult for him to carry out the defense lawyer in full accord with the
employment effectively; procedural requirements for a lawyers withdr
e. When the client deliberately fails to pay the fees awal from a court case? Explain briefly. (2004 Bar
for the services or fails to comply with the retainer Question)
agreement
f. When the lawyer is elected or appointed to A: No, his actuation is not in accord with the
public office; and procedural requirements for the lawyers withdrawal
g. Other similar cases. from a court case. Whether or not a lawyer has a valid
cause to withdraw from a case, he cannot just do so
NOTE: In cases a-e (above), the lawyer must file a written and leave the client in the cold unprotected. He must
motion with an express consent of his client and the court serve a copy of his petition upon the client and the
shall determine whether he ought to be allowed to retire. adverse party. He should, moreover, present his
petition well in advance of the trial of the action to
He may also retire at any time from an action or special enable the client to secure the services of another
proceeding without the consent of his client, should the lawyer.
court, on notice to the client and attorney, and on hearing,
determine that he ought to be allowed to retire (RRC, Sec.
26, Rule 138).
Q: Atty. X filed a notice of withdrawal of appearance
as counsel for the accused Y after the prosecution
Hot Potato Rule rested its case. The reason for the withdrawal of Atty.
X was the failure of accused Y to affix his conformity
GR: A lawyer may not unreasonably withdraw from to the demand of Atty. X for increase in attorney's
representing a client. fees. Is the ground for withdrawal justified? Explain.
(2000 Bar Question)
XPN: Withdrawal may be allowed if there is a conflict
of interest arising from circumstances beyond the A: The ground for the withdrawal is not justified. Rule
control of the lawyer or the law firm (Blacks Law 22.01 (e) of the Code of Professional Responsibility
Dictionary,9th edition). provides that a lawyer may withdraw his services
when the client deliberately fails to pay the fees for his
Q: On the eve of the initial hearing for the reception services or fails to comply with the retainer agreement.
of evidence for the defense, the defendant and his In this case, the client has not failed to pay the lawyer's
counsel had a conference where the client directed fees or to comply with the retainer agreement. He has
the lawyer to present as principal defense witnesses only refused to agree with the lawyer's demand for an
2 persons whose testimonies were personally known increase in his fees. It is his right to refuse as that is
to the lawyer to have been perjured. The lawyer part of his freedom of contract.
informed his client that he refused to go along with
the unwarranted course of action proposed by the
defendant. But the client insisted on the directive, or Rule 22.02, Canon 22
else he would not pay the agreed attorneys fees. A lawyer who withdraws or is discharged shall,
When the case was called for hearing the next subject to a retaining lien, immediately turn over
morning the lawyer forthwith moved in open court all papers and property to which the client is
that he be relieved as counsel for the defendant. Both entitled, and shall cooperate with his successor in
the defendant and the plaintiffs counsel objected to the orderly transfer of the matter, including all
the motion. Under the given facts, is the defense information necessary for the proper handling of
lawyer legally justified in seeking withdrawal from the matter.
the case? Why or why not? Reason briefly.
Duties of a discharged lawyer or one who withdraws
A: Yes, he is justified. Under rule 22.01 of the CPR, a
lawyer may withdraw his services if the client insists 1. Immediately turn-over all papers and property to
that the lawyer pursue conduct violative of these which the client is entitled; and
canon and rules. The insistence of the client that the 2. To cooperate with his successor in the orderly
lawyer present witnesses whom he personally knows transfer of the case.
to have been perjured, will expose him to criminal and
civil liability and violate his duty of candor, fairness and
good faith to the court.
a. Suspension upon conviction of a serious again promised to pay within a short time
crime; but failed to do so. Later, he again attempted to
b. Suspension when the lawyers borrow money for his daughters licensure exa
continuing conduct is or is likely to cause mination in the US Medical Board and assured Yuhico
immediate and serious injury to a client that he will pay his debts on or before a certain date
or public but Yuhico refused to lend him the money, instead,
he demanded payment of his debts. Atty. Gutierrez
8. Probation it is a sanction that allows a lawyer to failed to pay which led to the filing of a complaint
practice law under specified conditions. before the IBP- CBD for non-payment of just debts. It
turned out that Atty. Gutierrez was previously
SUI GENERIS disbarred in the case of Huyssen v Atty. Gutierrez for
gross misconduct in view of his failure to pay his
Sui generis in nature debts and his issuance of worthless checks. May Atty.
Gutierrez be disbarred for the second time?
Administrative cases against lawyers belong to a class
of their own (sui generis). They are distinct from and A: No. The SC held that while the IBP recommended to
may proceed independently of civil and criminal cases disbar Atty. Gutierrez for the second time, we do not
(In re Almacen, G.R. No. L-27654, Feb. 18, 1970; Funa, have double or multiple disbarment in our laws or
2009). jurisprudence and neither do we have a law mandating
a minimum 5-year requirement for readmission, as
Main objectives of disbarment and suspension cited by the IBP. Thus, while Gutierrezs infraction calls
for the penalty of disbarment, they cannot disbar him
1. Compel the attorney to deal fairly and honestly anew (Yuhico v Atty. Gutierrez, A.C. No. 8391, Nov. 23,
with his clients; 2010).
2. Remove from the profession a person whose
misconduct has proved him unfit to be entrusted GROUNDS
with the duties and responsibilities belonging to
the office of an attorney; Specific grounds for suspension or disbarment of a
3. Punish the lawyer; lawyer
4. Set an example or a warning for the other
members of the bar; 1. Deceit;
5. Safeguard the administration of justice from 2. Malpractice;
incompetent and dishonest lawyers; 3. Grossly immoral conduct;
6. Protect the public. 4. Conviction of a crime involving moral turpitude;
5. Violation of oath of office;
NOTE: The purpose and the nature of disbarment 6. Willful disobedience of any lawful order of a
proceedings make the number of defenses available in civil superior court;
and criminal actions inapplicable in disciplinary proceedings. 7. Corrupt or willful appearance as an attorney for a
party to a case without authority to do so (RRC,
PRESCRIPTION Sec. 27, Rule 138);
8. Non-payment of IBP membership dues (Santos, Jr.
There is no prescriptive period for the filing of a v. Atty. Llas, Adm. Case No. 4749, January 20,
complaint against an erring lawyer 2000).
Rule VII, Section 1 of the Rules of Procedure of the HOWEVER, The statutory enumeration is not to be
CBD-IBP, which provides for a prescriptive period for taken as a limitation on the general power of SC to
the filing of administrative complaints against lawyers, suspend or disbar a lawyer (In Re: Puno, A.C. No. 389,
should be struck down as void and of no legal effect Feb. 28, 1967). HENCE, the grounds enumerated are
for being ultra vires (Heirs of Falame v. Atty. Baguio, NOT exclusive.
A.C. No. 6876, Mar. 7, 2008).
Lawyers misconduct committed prior and after
Q: Atty. Gutierrez phoned Yuhico and asked for a cash admission to the bar and its effects
loan claiming that he needed money to pay for the
medical expenses of his mother who was seriously ill, 1. Prior to admission to the bar - acts of misconduct
and promised to pay the loan very soon. prior to admission include those that indicate that
Consequently, he asked Yuhico again for a at the time the lawyer took his oath, he did not
loan to pay for his wifes hospitalization and
UNIVERSITY OF SANTO TOMAS
81 FACULTY OF CIVIL LAW
Legal Ethics
possess the required qualifications for NOTE: Mere intimacy between a lawyer and a woman with
membership in the bar. Consequently, the no impediment to marry each other, and who voluntarily
cancellation of his license is justified. cohabited and had two children, is neither so corrupt to
constitute a criminal act nor so unprincipled as to warrant
2. After admission to the bar - those which cause loss
disbarment or disciplinary action against the man as a
of moral character on his part or involve violation
member of the bar (Arciga v. Maniwang, A.C. No. 1608, Aug.
of his duties to the court, his client, to the legal 14, 1981).
profession and to the public.
Moral turpitude
NOTE: Disbarment and suspension of a lawyer, being the
most severe forms of disciplinary sanction, should be
It has been defined as everything that is done
imposed with great caution and only in those cases where
contrary to justice, honesty, modesty, or good morals,
the misconduct of the lawyer as an officer of the court and a
member of the bar is established by clear, convincing and an act of baseness, vileness, or depravity in the private
satisfactory proof (Vitug v. Rongcal, A.C. No. 6313, Sept. 7, duties which a man owes his fellowmen, or to society
2006). in general, contrary to the accepted and customary
rule of right and duty between man and woman, or
Disbarment is merited when the action is not the lawyers conduct contrary to justice, honesty modesty, or good
first ethical infraction of the same nature (Que v. Revilla, A.C. morals (Soriano v. Dizon, A. C. No. 6792, Jan. 25, 2006).
No. 7054, Dec. 4, 2009).
Other statutory grounds for suspension and
Lending money by a justice of Supreme Court, not a ground
for disbarment and helping a person apply for sale disbarment of members of the bar
application on a lot is not an offense and not also a ground
for disbarment (Olazo v. Justice Tinga (Ret.), A.M. No. 10-5- Other statutory grounds include:
7-SC, December 7, 2010). 1. Acquisition of interest in the subject matter of the
litigation, either through purchase or assignment
Malpractice (NCC, Art. 1491);
2. Breach of professional duty, inexcusable
It refers to any malfeasance or dereliction of duty negligence, or ignorance, or for the revelation of
committed by a lawyer (Tan TekBeng v. David, Adm. the clients secrets (RPC, Art. 208);
Case No. 1261, Dec. 29 1983; Lapena,Jr., 2009). 3. Representing conflicting interests (RPC, Art. 209).
b. Not a civil action because there is neither 3. To deter the press from publishing charges or
plaintiff nor respondent, and involves no proceedings based thereon for even a verbatim
private interest. The complainant is not a reproduction of the complaint against an attorney
party and has no interest in the outcome in the newspaper may be actionable.
except as all citizens have in the proper
administration of justice. There is no redress NOTE: The confidentiality of the proceedings is a privilege
for private grievance. which may be waived by the lawyer in whom and for the
protection of whose personal and professional reputation it
c. Not a criminal prosecution because it is not is vested, as by presenting the testimony in a disbarment
meant as a punishment depriving him of case or using it as impeaching evidence in a civil suit (Villalon
v. IAC, G.R. No. L-73751, Sept. 24, 1986).
UNIVERSITY OF SANTO TOMAS
83 FACULTY OF CIVIL LAW
Legal Ethics
Notify Respondent
INVESTIGATION
(TERMINATE WITHIN 3 MONTHS)
PROCEDURE FOR DISBARMENT OR DISCIPLINE OF ATTORNEYS BY THE IBP (Rule 139-B, RRC)
Effect of the desistance or withdrawal of complaint 12. Physical or mental disability or impairment;
or non-appearance of complainant in disbarment 13. Delay in disciplinary proceedings;
proceedings 14. Interim rehabilitation;
15. Imposition of other penalties or sanctions;
The desistance or the withdrawal of the complainant 16. Remorse;
of the charges against a judge/lawyer does not deprive 17. Remoteness of prior offenses (IBP Guidelines
the court of the authority to proceed to determine the 9.32).
matter. Nor does it necessarily result in the dismissal
of the complaint except when, as a consequence of the NOTE: Disbarment should not be decreed where any
punishment less severe such as reprimand, suspension or
withdrawal or desistance no evidence is adduced to
fine would accomplish the end desired (Amaya v. Tecson, A.C.
prove the charges.
No. 5996, Feb. 7, 2005).
The doctrine of res ipsa loquitur is applicable in cases Aggravating circumstances in disbarment
of dismissal of judges or disbarment of lawyers (1996,
2003 Bar Questions) 1. Prior disciplinary offenses;
2. Dishonest or selfish motives;
This principle or doctrine applies to both judges and 3. A pattern of misconduct;
lawyers. Judges had been dismissed from the service 4. Multiple offenses;
without need of a formal investigation because based 5. Bad faith obstruction of the disciplinary
on the records, the gross misconduct or inefficiency of proceeding by intentionally failing to comply with
judges clearly appears (Uy v. Mercado, A.M. No. R-368- rules or orders of the disciplinary agency;
MTJ, Sept. 30, 1987). 6. Submission of false evidence, false statements, or
other deceptive practices during the disciplinary
The same principle applies to lawyers. Thus, where on process;
the basis of the lawyers comment or answer to show 7. Refusal to acknowledge wrongful nature of
a show-cause order of SC, it appears that the lawyer conduct;
has so conducted himself in a manner which exhibits 8. Vulnerability of victim;
his blatant disrespect to the court, or his want of good 9. Substantial experience in the practice of law; and
moral character or his violation of the attorneys oath, 10. Indifference to making restitution. (IBP Guidelines
the lawyer may be suspended or disbarred without 9.22)
need of trial-type proceeding. What counts is that the
lawyer has been given the opportunity to air his side Guidelines to be observed in the lifting of an order
(Prudential Bank v. Castro, A.M. No. 2756, June 5, suspending a lawyer from the practice of law
1986).
1. Upon the expiration of the period of suspension,
Mitigating circumstances in disbarment respondent shall file a Sworn Statement with the
Court, through the Office of the Bar Confidant,
1. Good faith in the acquisition of a property of the stating therein that he or she has desisted from the
client subject of litigation (In Re: Ruste, A.M. No. practice of law and has not appeared in any court
632, June 27, 1940); during the period of his or her suspension;
2. Inexperience of the lawyer (Munoz v. People, G.R.
No. L-33672, Sept. 28, 1973); 2. Copies of the Sworn Statement shall be furnished to
3. Age (Santos v. Tan, A.C. No. 2697, Apr. 19, 1991); the Local Chapter of the IBP and to the Executive
4. Apology (Munoz v. People, G.R. No. L- 33672, Sept. Judge of the courts where respondent has pending
28, 1973); cases handled by him or her, and/or where he or
5. Lack of Intention to slight or offend the Court she has appeared as counsel; and
(Rheem of the Philippines, Inc. v. Ferrer, G.R. No. 3. The Sworn Statement shall be considered as proof
L-22979, Jan. 27, 1967); of respondents compliance with the order of
6. Absence of prior disciplinary record; suspension;
7. Absence of dishonest or selfish motive;
8. Personal or emotional problems;
9. Timely good faith effort to make restitution or to DISCIPLINE OF FILIPINO LAWYERS
rectify consequences of misconduct; PRACTICING ABROAD
10. Full and free disclosure to disciplinary board or
cooperative attitude toward the proceedings; If the Filipino lawyer is disbarred or suspended from
11. Character or reputation; the practice of law by a competent court or disciplinary
agency in a foreign jurisdiction where he has been
UNIVERSITY OF SANTO TOMAS
2014 GOLDEN NOTES
88
SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS
READMISSION TO THE BAR Enterprises, Inc. et al. v. Atty. de Vera, et al. and Atty.
de Vera v. Atty. Encanto, et al.).
Reinstatement and its requirements
Thus, according to the OBC, a suspended lawyer must
Reinstatement is the restoration of the privilege to first present proof(s) of his compliance by submitting
practice law after a lawyer has been disbarred. The certifications from the Integrated Bar of the
applicant must, satisfy the Court that he is a person of Philippines and from the Executive Judge that he has
good moral character a fit and proper person to indeed desisted from the practice of law during the
practice law. period of suspension. Thereafter, the Court, after
evaluation, and upon a favorable recommendation
NOTE: The power of the Supreme Court to reinstate is based from the OBC, will issue a resolution lifting the order
on its constitutional prerogative to promulgate rules on the of suspension and thus allow him to resume the
admission of applicants to the practice of law (1987 practice of law (Maniago v. Atty. De Dios, A.C. No. 7472,
Constitution, Sec. 5[5], Art. VIII). March 30, 2010).
Q: Raul Gonzales was found guilty of both contempt The following guidelines were issued by the Supreme
of court in facie curiae and gross misconduct as an Court, the same to be observed in the matter of the
officer of court and member of the bar. For this, he lifting of an order suspending a lawyer from the
was suspended indefinitely. After more than 4 years practice of law:
from his suspension, Gonzales filed an ex-parte
motion to lift his suspension from the practice of law, 1. After a finding that respondent lawyer must be
alleging that he gave free legal aid services by paying suspended from the practice of law, the Court
lawyers to do the same as he could not personally shall render a decision imposing the penalty;
represent said clients; pursued civic work for the 2. Unless the Court explicitly states that the decision
poor; brought honor to the country by delivering a is immediately executory upon receipt thereof,
paper in Switzerland; that he has a long record in the respondent has 15 days within which to file a
service of human rights and the rule of law; his motion for reconsideration thereof. The denial of
suspension of 51 months has been the longest so far; said motion shall render the decision final and
states his profound regrets for the inconvenience executory;
which he has caused to the Court; sincerely reiterates 3. Upon the expiration of the period of suspension,
his respect to the institution as he reiterates his oath respondent shall file a Sworn Statement with the
to conduct himself as a lawyer. May his suspension Court, through the Office of the Bar Confidant,
be lifted? stating therein that he or she has desisted from
the practice of law and has not appeared in any
A: Yes. Gonzales contrition, so noticeably absent in his court during the period of his or her suspension;
earlier pleadings, has washed clean the offense of his 4. Copies of the Sworn Statement shall be furnished
disrespect. His remorse has soften his arrogance and to the Local Chapter of the IBP and to the
made up for his misconduct. Gonzales suspension has Executive Judge of the courts where respondent
given him ample time and opportunity to amend his has pending cases handled by him or her, and/or
erring ways, rehabilitate himself, and thus, prove where he or she has appeared as counsel;
himself worthy once again to enjoy the privileges of 5. The Sworn Statement shall be considered
membership of the Bar. His motion was granted as proof of respondents compliance with the
(Zaldivar v. Gonzales, G.R. Nos. 79690- 707, April 7, order of suspension;
1993). 6. Any finding or report contrary to the statements
made by the lawyer under oath shall be a ground
Lifting of suspension is not automatic upon the end for the imposition of a more severe punishment,
of the period stated in the Courts decision or disbarment, as may be warranted.
READMISSION TO THE BAR OF LAWYERS previous disbarment (Cui v. Cui, G.R. No. L-18727,
WHO HAVE BEEN DISBARRED Aug. 31, 1964);
2. Recognition of moral rehabilitation and mental
Requirements for judicial clemency for disbarred fitness to practice law;
lawyers and judges 3. Lawyer shall be subject to same law, rules and
regulations as those applicable to any other
1. There must be proof of remorse and reformation. lawyer; and
2. Sufficient time must have elapsed from the 4. Lawyer must comply with the conditions imposed
on his readmission.
imposition of the penalty to ensure a period of
reform. Effect of the executive pardon granted by the
3. The age of the person asking for clemency must President
show that he still has productive years ahead of him
that can be put to good use by giving him a chance If during the pendency of a disbarment proceeding the
to redeem himself. respondent was granted executive pardon, the
4. There must be a showing of promise (such as dismissal of the case on that sole basis will depend on
whether the executive pardon is absolute or
intellectual aptitude, learning or legal acumen or
conditional.
contribution to the legal scholarship and the 1. Absolute or unconditional pardon - the
development of the legal system), as well as disbarment case will be dismissed.
potential for public service. 2. Conditional pardon - the disbarment case will not
5. There must be other relevant factors and be dismissed on the basis thereof.
circumstances that may justify clemency.
NOTE: To be reinstated, there is still a need for the filing of
an appropriate petition with the Supreme Court (In re:
Supreme Courts guidelines in reinstatement
Rovero, A.M. No. 126, Dec. 29, 1980).
1. The applicants character and standing prior Q: X filed proceedings for disbarment against his
to the disbarment; lawyer, Atty. C, following the latters conviction for
2. The nature and character of the charge for which estafa for misappropriating funds belonging to his
he was disbarred; client (X). While the proceedings for disbarment was
3. His conduct subsequent to the disbarment, and pending, the President granted absolute pardon in
the time that has elapsed between the favor of Atty. C. Atty. C, then, moved for the dismissal
disbarment and the application for reinstatement of the disbarment case. Should the motion be
(Prudential Bank v. Benjamin Grecia, A.C. No. granted?
2756, Dec. 18, 1990);
4. His efficient government service (In re: Adriatico, A: An absolute pardon by the President is one that
G.R. No. L-2532, Nov. 17, 1910); operates to wipe out the conviction as well as the
5. Applicants appreciation of the significance of offense itself. The grant thereof to a lawyer is a bar to
his dereliction and his assurance that he now a proceeding for disbarment against him, if such
possesses the requisite probity and integrity; and proceeding is based solely on the fact of such
6. Favorable endorsement of the IBP and pleas of his conviction (In re: Parcasio, A.C. No. 100, Feb. 18, 1976).
loved ones (Yap Tan v. Sabandal, B.M. No. 144,
Feb. 24, 1989). But where the proceeding to disbar is founded on the
professional misconduct involved in the transaction
NOTE: Whether or not the applicant shall be reinstated rests which culminated in his conviction, the effect of the
on the discretion of the court (Prudential Bank v. Benjamin pardon is only to relieve him of the penal
Grecia, A.C. No. 2756, Dec. 18, 1990). consequences of his act and does not operate as a bar
to the disbarment proceeding, inasmuch as the
The court may require applicant for reinstatement to enroll
in and pass the required fourth year review classes in a criminal acts may nevertheless constitute proof that
recognized law school (Cui v. Cui, In Re: Resian, A.C. No. 270, the attorney does not possess good moral character
Mar. 20, 1974). (In re: Lontok, 43 Phil. 293, Apr. 7, 1922).
A: Xs contention is not tenable. He was granted only a Before a lawyer who reacquires Filipino citizenship
conditional pardon. Such conditional pardon merely pursuant to R.A. 9225 can resume his law practice, he
relieved him of the penal consequences of his act but must first secure from the SC the authority to do so,
did not operate as a bar to his disbarment. Such conditioned on:
pardon does not reach the offense itself. Hence, it 1. The updating and payment in full of the annual
does not constitute a bar to his disbarment. (In Re membership dues in the IBP;
GutierrezbA.C. No. L-363, July 31, 1962; In re Avancena, 2. The payment of professional tax;
A.C. No. 407, Aug. 15, 1967). Furthermore, the acts of 3. The completion of at least 36 credit hours of
X leading to his conviction may be used to show that mandatory continuing legal education, this is
he does not possess the necessary requirement of especially significant to refresh the
good moral character for continued membership in applicant/petitioners knowledge of Philippine
the Bar (In re Valloces, A.C. No. 439, Sept. 30, 1982). laws and update him of legal developments; and
4. The retaking of the lawyers oath which will not only
READMISSION TO THE BAR OF LAWYERS remind him of his duties and responsibilities as a
WHO HAVE BEEN REPATRIATED lawyer and as an officer of the Court, but also
renew his pledge to maintain allegiance to the
Q: Dacanay practiced law until he migrated to Canada Republic of the Philippines (Petition for Leave to
to seek medical attention to his ailments. He Resume Practice of Law of Benjamin Dacanay, B.M.
subsequently applied for Canadian citizenship to No. 1678, Dec. 17, 2007).
avail of Canadas free medical aid program. His
application was approved and he became a Canadian
citizen. Dacanay later on reacquired his Philippine
citizenship by virtue of R.A. 9225. Did Dacanay lose
his membership in the Philippine bar when he gave
up his Philippine citizenship? Can he automatically
2. Lawyers who by law are not allowed to appear in reports to the IBPs National Committee on Legal
court; Aid (NCLA) for recording and documentation. The
3. Supervising lawyers of students enrolled in law submission shall be made within forty-five (45)
student practice in duly accredited legal clinics of days after the mandatory submission of
law schools and lawyers of non-governmental compliance reports by the practicing lawyers.
organizations (NGOs) and peoples organizations (B.M. 2012, Sec. 5[d])
(POs) like the Free Legal Assistance Group who by 6. Practicing lawyers shall indicate in all pleadings
the nature of their work already render free legal filed before the courts or quasi-judicial bodies the
aid to indigent and pauper litigants; and number and date of issue of their certificate of
4. Lawyers not covered under subparagraphs 1 to 3 compliance for the immediately preceding
including those who are employed in the private compliance period. (B.M. 2012, Sec 5[e])
sector but do not appear for and in behalf of
parties in courts of law and quasi-judicial Contents of a certificate from the Clerk of Court
agencies.(B.M. 1. 2012, Sec. 4[a]) attesting the number of hours spent in rendering free
legal services
Legal aid cases
1. The case or cases where the legal aid service was
It includes actions, disputes, and controversies that rendered, the party or parties in the said case(s),
are criminal, civil and administrative in nature in the docket number of the said case(s) and the
whatever stage wherein indigent and pauper litigants date(s) the service was rendered
need legal representation (B. M.2012, Sec. 4[c]). 2. The number of hours actually spent
3. The number of hours actually spent attending
Requirements for mandatory legal aid service mediation, conciliation or any other mode of ADR
on a particular case
Under the Rule, a practicing lawyer, among others, 4. A motion (except a motion for extension of time to
shall coordinate with the Clerk of Court or the Legal file a pleading or for postponement of hearing or
Aid Chairperson of ones Integrated Bar of the conference) or pleading filed on a particular case
Philippines (IBP) Chapter for cases where the lawyer shall be considered as one (1) hour of service (B.M.
may render free legal aid service: 2012, Sec 5[b]).
1. Every practicing lawyer is required to render a NOTE: The Clerk of Court shall issue the certificate in
minimum of 60 hours of free legal aid services to triplicate, one (1) copy to be retained by the practicing
indigent litigants in a year. Said 60 hours shall be lawyer, one (1) copy to be retained by the Clerk of Court and
one (1) copy to be attached to the lawyer's compliance
spread within the period of 12 months, with a
report (B.M. 2012, Sec 5[b][iv] second par.)
minimum of 5 hours of free legal aid services each
month. However, where it is necessary for the
Credits to lawyers who render free legal aid
practicing lawyer to render legal aid service for
more than 5 hours in one month, the excess hours
A lawyer who renders mandatory legal aid service for
may be credited to the said lawyer for the
the required number of hours in a year for the three
succeeding periods (B.M. 2012, Sec. 5[a] first
year-period covered by a compliance period under the
par.).
Rules on MCLE shall be credited the following:
2. The practicing lawyer shall report compliance with
1. Two (2) credit units for legal ethics
the requirement within 10 days of the last month
2. Two (2) credit units for trial and pretrial skills
of each quarter of the year. (B.M. 2012, Sec. 5[a]
3. Two (2) credit units for alternative dispute
third par.)
resolution
3. A practicing lawyer shall be required to secure and
4. Four (4) credit units for legal writing and oral
obtain a certificate from the Clerk of Court
advocacy
attesting to the number of hours spent rendering
5. Four (4) credit units for substantive and
free legal aid services in a case. (B.M. 2012, Sec.
procedural laws and jurisprudence
5[b])
6. Six (6) credit units for such subjects as may be
4. Said compliance report shall be submitted to the
prescribed by the MCLE Committee under
Legal Aid Chairperson of the IBP Chapter within
Section 2(g), Rule 2 of the Rules on MCLE
the Courts jurisdiction. (B.M. 2012, Sec. 5[c])
5. The IBP chapter shall, after verification, issue a
A lawyer who renders mandatory legal aid service for
compliance certificate to the concerned lawyer.
the required number of hours in a year for at least two
The IBP Chapter shall also submit compliance
consecutive years within the three year- period
UNIVERSITY OF SANTO TOMAS
95 FACULTY OF CIVIL LAW
Legal Ethics
covered by a compliance period under the Rules on officer of an NGO (non-governmental organizations) or PO
MCLE shall be credited the following: (peoples organizations) shall be a ground for an
1. One (1) credit unit for legal ethics administrative case against the said Clerk of Court or
Chairperson. This is without prejudice to the filing of the
2. One (1) credit unit for trial and pretrial skills
criminal and administrative charges against the malfeasor
3. One (1) credit unit for alternative dispute
(B.M. 2012, Sec. 7[e]).
resolution
4. Two (2) credit units for legal writing and oral
advocacy
5. Two (2) credit units for substantive and
procedural laws and jurisprudence
6. Three (3) credit units for such subjects as may be
prescribed by the MCLE Committee under
Section 2(g), Rule 2 of the Rules on MCLE. (Sec.
8, B.M. 2012)
GR: Only those admitted to the practice of law are Q: Vicente Batic charged Judge Victorio Galapon Jr.
qualified to be notaries public. with engaging in unauthorized notarial practice for
having notarized a Deed of Absolute Sale between
XPNs: When there are no persons with the necessary Antonio Caamic and Lualhati Ellert. Under the deed
qualifications or where there are qualified persons but of sale, Lualhati Ellert, was described as single. At the
they refuse appointment. In which case, the following time of Galapons notarization of the Deed of Sale,
persons may be appointed as notaries: there was a notary public in Dulag, Leyte. Judge
1. Those who passed the studies of law in a Galapon claims that he did not prepare the document
reputable university; or and that his participation was limited to its
2. A clerk or deputy clerk of court for a period of acknowledgment, for which the corresponding fee
not less than two years. was collected by and paid to the clerk of court. Are
MTC judges like Judge Galapon absolutely prohibited
Prohibition against the RTC judges to notarize from acting as notaries public?
Section 35, Rule 138, of the Revised Rules of Court as A: No. While Judge Galapon explains that he sincerely
well as Canon 5, Rule 5.07 of the Code of Judicial believed that when no notary public is available, the
Conduct provides that no judge or other official or MTC may act as ex-officio notary public, provided the
employee of the superior courts shall engage in private fees shall be for the government, such is not enough
practice as a member of the bar or give professional to exonerate him from liability. His acts do not fall
advice to clients. Notarization of documents is under the exception because at the time of his
considered a practice of law. notarization of the Deed of Sale, there was a notary
public in Dulag, Leyte (Vicente Batic v. Judge Victorio
The rights, duties, privileges and functions of the office Galapon Jr., A.M. No. MTJ-99-1239, July 29, 2005).
of an attorney-at-law are so inherently incompatible
with the official functions, duties, powers, discretions Clerk of court as notary
and privileges of a judge of the Regional Trial Court.
Clerk of court may at as notary public, provided he is
Authority of MTC judges to notarize and its limitation commissioned and has been permitted by his superior.
Such consent is necessary because the act of
MTC and MCTC judges may act as notaries public ex- notarizing a document is a practice of law.
officio in the notarization of documents connected Rules with regard to fees that a notary public may
only with the exercise of their official functions and charge
duties. They may not, as notaries public ex-officio,
undertake the preparation and acknowledgment of
1. For performing a notarial act, a notary public may
private documents, contracts and other acts of charge the maximum fee as prescribed by the
Supreme Court unless he waives the fee in whole was filed against him. Is Juan dela Cruz guilty of
or in part (A. M. 02-8-13-SC, Sec. 1, Rule V); malpractice?
2. A notary public may charge travel fees and
expenses separate from the notarial fees when A: Yes. Absent any showing that his notarial
traveling to perform a notarial act if the notary commission has been renewed, his act constitutes
public and the person requesting the notarial act malpractice because at the time he notarized the
agree prior to the travel (A. M. 02-813-SC, Sec. 2, document, his notarial commission has already
Rule); expired. It is not a defense that no payment has been
3. No fee or compensation of any kind, except those received. The requirement for the issuance of the
expressly prescribed and allowed herein, shall be commission as notary public must not be treated as a
collected or received for any notarial service (A. mere casual formality. In fact, Juans act also
M. 02-813-SC, Sec. 3, Rule V); constitutes falsification of public document.
4. A notary public shall not require payment of any
fees specified prior to the performance of a Expired Commission
notarial act unless otherwise agreed upon (A. M.
02-813-SC, first par., Sec. 4, Rule V); A notary public may file a written application with the
5. Any travel fees and expenses paid to a notary Executive Judge for the renewal of his commission
public prior to the performance of a notarial act within 45 days before the expiration thereof. A mark,
are not subject to refund if the notary public image or impression of the seal of the notary public
already traveled but failed to complete in whole shall be attached in the application (A.M. No. 02-8-13-
or in part the notarial act for reasons beyond his SC, first par., Sec. 13, Rule III).
control and without negligence on his part (A. M.
02-813-SC, second par., Sec. 4, Rule V). NOTE: If a person is applying for a commission for the first
time, what he files is a petition and not an application.
NOTE: A notary public who charges fee for notarial services
shall issue a receipt registered with the Bureau of Internal Failure of the notary public to file an application for
revenue and keep a journal of notarial fees. He shall enter in the renewal of his commission
the journal all fees charges for services rendered. A notary
public shall post in a conspicuous place in his office a Failure to file said application will result in the deletion
complete schedule of chargeable notarial fees (A. M. 02-813-
of the name of the notary public in the register of
SC, Sec. 5, Rule V).
notaries public and may only be reinstated therein
after he is issued a new commission (A.M. No. 02-8-13-
TERM OF OFFICE OF A NOTARY PUBLIC
SC, second and third pars., Sec. 13, Rule III).
Term of office of a notary public (1995 Bar Question)
NOTE: The Executive Judge shall, upon payment of the
application fee, act on an application for renewal of a
A notary public may perform notarial acts for a period commission within thirty (30) days from receipt thereof. If
of 2 years commencing the 1st day of January of the the application is denied, the Executive Judge shall state the
year in which the commissioning is made until the last reasons therefor (A.M. No. 02-8-13-SC, Sec. 14, Rule III).
day of December of the succeeding year regardless of
the actual date when the application was renewed, POWERS AND LIMITATIONS OF A NOTARY PUBLIC
unless earlier revoked or the notary public has
resigned under the Rules on Notarial Practice and the Powers of a notary public
Rules of Court (A.M. No. 02-8-13-SC, Section 11, Rule
III). A notary public is empowered to perform the following
notarial acts: (JAO-CAS)
NOTE: The period of 2 years of a notarial commission will 1. Acknowledgements;
commence at January first regardless of when it was really 2. Oaths and affirmations;
granted and will end at exactly 2 years from said date of 3. Jurats;
commencement up to December of the 2nd year. Ex. Atty.
4. Signature witnessings;
Antonio applied for and was given notarial commission on 12
5. Copy certifications; and
November 2010, such term will expire on 31 December 2011
(2011 Bar Question). 6. Any other act authorized by these rules (A.M.
No. 02-8-13-SC, Section 1(a), Rule IV)
Q: Juan dela Cruz was commissioned as a notary
public in 2001. His friend asked him to notarize a deed
of absolute sale sometime in 2004, to which he
agreed free of charge. A complaint for malpractice
UNIVERSITY OF SANTO TOMAS
99 FACULTY OF CIVIL LAW
Legal Ethics
Notarization of a private document their respective names were forgeries. Did Atty.
Cristal-Tenorio fail to comply with the mandates of
Notarization converts a private document to a public the law when she notarized the deed of sale without
instrument, making it admissible in evidence without the complainant and his children? Does such failure
the necessity of preliminary proof of its authenticity warrant the revocation of her notarial commission?
and due execution. A notarized document is by law
entitled to full credit upon its face and it is for this A: Yes. Under Section 1(a) of Act 2103, a notary public
reason that notaries public must observe the basic taking the acknowledgment in a document or
requirements in notarizing documents (Dolores dela instrument is mandated to certify that the person
cruz, ET AL V. Atty. Jose Dimaano, Jr., September 12, acknowledging the instrument or document is known
2008, A.C. No. 7781). to him and that he is the same person who executed it
and acknowledged that the same is his free act and
Absence of notarization in a deed of sale deed. To "acknowledge before" means to avow; to
own as genuine, to assert, to admit; and "before"
The absence of notarization of the Deed of Sale would means in front or preceding in space or ahead of. A
not necessarily invalidate the transaction evidenced party acknowledging must appear before the notary
therein. Article 1358 of the Civil Code requires that the public. A notary public should not notarize a document
form of a contract that transmits or extinguishes real unless the persons who signed the same are the very
rights over immovable property should be in a public same persons who executed and personally appeared
document, yet it is also an accepted rule that the before the said notary public to attest to the contents
failure to observe the proper form does not render the and truth of what are stated therein. The presence of
transaction invalid. Thus, it has been uniformly held the parties to the deed making the acknowledgment
that the form required in Article 1358 is not essential will enable the notary public to verify the genuineness
to the validity or enforceability of the transaction, but of the signature of the affiant. A notary public is
required merely for convenience (Leonor Camcam v. enjoined from notarizing a fictitious or spurious
CA; Tigno v. Aquino). document. The function of a notary public is, among
others, to guard against any illegal deed (Cabanilla v.
Acknowledgment Cristal-Tenorio, A.C. No. 6139, Nov. 11, 2003).
Refers to an act in which an individual on a single Q: Before me personally appeared this 30th of
occasion: August 2010 Milagros A. Ramirez, who proved her
1. Appears in person before the notary public and identity to me through witnesses: 1. Rosauro S.
presents an integrally complete instrument or Balana, Passport UU123456; 1-5-2010/Baguio City;
document; and 2. Elvira N. Buela, Passport VV200345; 1-17-
2009/Manila. Both witnesses, of legal ages, under
NOTE: A notary public cannot perform a notarial act over oath declare that: Milagros A. Ramirez is personally
a document that has missing pages, or that contains known to them; she is the same seller in the
blanks that should be filled-in prior to the notarial act. foregoing deed of sale; she does not have any current
identification document nor can she obtain one
2. Is attested to be personally known to the notary within a reasonable time; and they are not privy to or
public or identified by the notary public through are interested in the deed he signed. What is the
competent evidence of identity as defined by the status of such a notarial acknowledgement? (2011
Rules on Notarial Practice; and Bar Question)
3. Represents to the notary public that the signature
on the instrument or document was voluntarily A: Valid, since it is a manner of establishing the
affixed by him for the purposes stated in the identity of the person executing the document.
instrument or document, declares that he has
executed the instrument or document as his free Jurat
and voluntary act and deed, and, if he acts in a
particular representative capacity, that he has the Refers to an act in which an individual on a single
authority to sign in that capacity (Sec. 1, Rule II, A.M. occasion:
02-8-13-SC). 1. Appears in person before the notary public and
presents an instrument or document;
Q: Cabanilla filed a complaint against Atty. Cristal- 2. Is personally known to the notary public or
Tenorio with the IBP, alleging that he never appeared identified by the notary public through competent
before her when she notarized the deed of sale of his evidence of identity as defined by the Rules on
house, and that the signatures appearing opposite Notarial Practice;
UNIVERSITY OF SANTO TOMAS
2014 GOLDEN NOTES
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NOTARIAL PRACTICE
3. Both witnesses sign their own names; Q: Engineer Cynthia de la Cruz Catalya filed an
4. The notary public writes below his signature: application for building permit in connection with the
Signature affixed by notary in the presence of renovation of a building situated on a lot owned by
(names and addresses of person and 2 her brother Rolando de la Cruz. One of the
witnesses); and documents required in the processing of the
5. The notary public notarizes his signature by application was an affidavit to be executed by the lot
acknowledgment or jurat (A.M. 02-8-13-SC, Sec. owner. Since Rolando de la Cruz was a resident
1(c), Rule IV). abroad, an affidavit was prepared wherein it was
made to appear that he was a resident of Leyte. Atty.
Copy certification Francisco Villamor notarized the purported affidavit.
According to him, a Chinese mestizo appeared in his
Refers to a notarial act in which a notary public: law office one time, requesting that his affidavit be
1. Is presented with an instrument or document that notarized. Said person declared that he was Rolando
is neither a vital record, a public record, nor de la Cruz. Atty. Villamor then asked for the
publicly recordable; production of his residence certificate, but he said, he
2. Copies or supervises the copying of the did not bother to bring the same along with him
instrument or document; anymore as, he has already indicated his serial
3. Compares the instrument or document with the number, in the jurat portion together with the date
copy; and of issue and place of issue. Did Atty. Francisco
4. Determines that the copy is accurate and Villamor commit a violation of notarial law?
complete (A.M. 02-8-13-SC, Sec. 4, Rule II).
A: Yes. It is the duty of the notarial officer to demand
NOTE: The document copied must be an original document. that the document presented to him for notarization
It cannot be a copy itself. should be signed in his presence. By his admission, the
affidavit was already signed by the purported affiant
Notarial certificate at the time it was presented to him for notarization.
Atty. Villamor thus failed to heed his duty as a notary
Refers to the part of, or attachment to a notarized public to demand that the document for notarization
instrument or document that is completed by the be signed in his presence (Traya Jr. v. Villamor, A.C. No.
notary public which bears the notary's signature and 4595,Feb. 6, 2004).
seal, and states the facts attested to by the notary
public in a particular notarization as provided for by Q: During their lifetime, the Spouses Villanueva
the Rules on Notarial Practice (A. M. No. 02-8-13, Sec. acquired several parcels of land. They were survived
8, Rule II). by their 5 children: Simeona, Susana, Maria, Alfonso,
and Florencia. Alfonso executed an Affidavit of
NOTE: Loose notarial certificate refers to a notarial Adjudication stating that as the only surviving son
certificate that is attached to a notarized instrument or and sole heir of the spouses, he was adjudicating
document.
himself a parcel of land. Thereafter, he executed a
Deed of Absolute Sale, conveying the property to
Limitations to the performance of a notarial act
Adriano Villanueva. Atty. Salud Beradio appeared as
notary public on both the affidavit of adjudication
A person shall not perform a notarial act if the person
and the deed of sale. Atty. Beradio knew of the falsity
involved as signatory to the instrument or document
of Alfonsos statement. Florencia and descendants of
is:
the other children of the spouses were still alive at
a. Not in the notary's presence personally at the
the time of execution of both documents. Was there
time of the notarization; and (A.M. No. 02-8-13-
a failure to discharge properly the duties of a notary
SC, Sec. 2(b)(1), RuleIV).
public?
b. Not personally known to the notary public or
otherwise identified by the notary public through A: Yes. Atty. Beradios conduct breached the Code of
competent evidence of identity as defined by the Professional Responsibility, which requires lawyers to
Rules on Notarial Practice (A.M. No. 02-8-13-SC, obey the laws of the land and promote respect for the
Sec.2(b)(2), Rule IV) law and legal processes as well as Rule 1.01 of the
c. The document is blank or incomplete; (A.M. 02-8- Code which proscribes lawyers from engaging in
13-SC, Sec.6 (a) Rule IV) unlawful, dishonest, immoral, or deceitful conduct.
d. An instrument or document is without She herself admitted that she knew of the falsity of
appropriate notarial certification (A.M. 02-8-13- Alfonsos statement that he was the sole heir of the
SC, Sec. 6, Rule IV). spouses. She therefore notarized a document while
UNIVERSITY OF SANTO TOMAS
2014 GOLDEN NOTES
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NOTARIAL PRACTICE
Officers authorized to administer oaths, with the 1. The inspection is made in the notarys presence;
exception of notaries public, municipal judges and 2. During regular business hours;
clerks of court, are not obliged to administer oaths or 3. The person's identity is personally known to the
execute certificates save in matters of official business notary public or proven through competent
or in relation to their functions as such; and with the evidence of identity as defined in these Rules;
exception of notaries public, the officer performing 4. The person affixes a signature and thumb or other
the service in those matters shall charge no fee, unless mark or other recognized identifier, in the notarial
specifically authorized by law (Section 42). register in a separate, dated entry;
5. The person specifies the month, year, type of
NOTE: P.A.O. Lawyers now have the authority to administer instrument or document, and name of the
oaths, provided it is in connection with the performance of principal in the notarial act or acts sought; and
their duties. 6. The person is shown only the entry or entries
specified by him (Sec.4 (a), Rule VI,A.M. No. 02-8-
The fiscal or the state prosecutor has the authority to
13-SC).
administer oaths (RA No. 5180, as amended by P.D. 911).
The register shall be kept in books to be furnished by Rules in case of loss, destruction or damage of
the Solicitor General to any notary public upon request notarial register
and upon payment of the cost thereof. The register
shall be duly paged, and on the first page, the Solicitor 1. In case the notarial register is stolen, lost,
General shall certify the number of pages of which the destroyed, damaged, or otherwise rendered
book consists (A.M. No. 02-8-13-SC, Sec. 1(a), RuleVI). unusable or illegible as a record of notarial acts,
the notary public shall, within ten (10) days after
NOTE: Failure of the notary to make the proper entry or informing the appropriate law enforcement
entries in his notarial register touching his notarial acts in agency in the case of theft or vandalism, notify the
the manner required by law is a ground for revocation of Executive Judge by any means providing a proper
his commission. (Father Ranhilio C. Aquino Et. Al., s. receipt or acknowledgment, including registered
Complainants, Vs. Atty. Edwin Pascua, Respondent. A.C. No. mail and also provide a copy or number of any
5095, November 28, 2007, En Banc) pertinent police report.
2. Upon revocation or expiration of a notarial
Signing or affixing a thumbmark in the notarial commission, or death of the notary public, the
register notarial register and notarial records shall
immediately be delivered to the office of the
At the time of notarization, the notary's notarial Executive Judge (Sec. 5, Rule VI, A. M. No. 02-8-13-
register shall be signed or a thumb or other mark SC, Sec. 5, Rule VI).
affixed by each:
1. Principal; The notary public may refuse the request of
inspection for register of deeds
2. Credible witness swearing or affirming to the
identity of a principal; and
If the notary public has a reasonable ground to believe
3. Witness to a signature by thumb or other mark, or that a person has a criminal intent or wrongful motive
to a signing by the notary public on behalf of a in requesting information from the notarial register,
person physically unable to sign (A.M. No. 02-8- the notary shall deny access to any entry or entries
13-SC, Sec. 3,Rule VI). therein (A. M. No. 02-8-13-SC, Sec. 4(c), Rule VI).
JURISDICTION OF NOTARY PUBLIC AND public should maintain a regular place of work or business
PLACE OF NOTARIZATION within the city or province where he is commissioned. The
SC evidently wants to eradicate the practice of fly by night
notaries public who notarized documents in improvised
Jurisdiction of notary public
offices.
Competent evidence of identity refers to the Punishable acts under the 2004 Rules on Notarial
identification of an individual based on the following: Practice
1. At least one current identification document
The Executive Judge shall cause the prosecution of any
issued by an official agency bearing the
person who knowingly:
photograph and signature of the individual such
as but not limited to those enumerated in the law. 1. Acts or otherwise impersonates a notary public;
2. The oath or affirmation of one credible witness 2. Obtains, conceals, defaces, or destroys the seal,
not privy to the instrument, document or notarial register, or official records of a notary
transaction who is personally known to the notary public; and
public and who personally knows the individual, 3. Solicits, coerces, or in any way influences a notary
or of two credible witnesses neither of whom is public to commit official misconduct.(Rule on
privy to the instrument, document or transaction Notarial Practice, Sec. 1, Rule XII).
who each personally knows the individual and
shows to the notary public documentary NOTE: Notarizing documents without the requisite
commission therefore constitutes malpractice, if not the
identification. (Amendment to Sec. 12 (a), Rule II
crime of falsification of public documents (St. Louis
of the 2004 Rules on Notarial Practice, Feb. 19, Laboratory High School Faculty And Staff V. Dela Cruz , A.C.
2008). No. 6010. August 28, 2006).
especially the liberty to strive for the good life THE NEW CODE OF JUDICIAL CONDUCT
according to a persons conception. He further said FOR THE PHILIPPINE JUDICIARY
that the Judiciary can contribute to the advancement (BANGALORE DRAFT)
of liberty and prosperity by adopting two standards of (A.M. NO. 03-05-01)
judicial review: that in litigations involving civil
liberties, the scales should weigh heavily against the The New Code of Judicial Conduct (NCJC) for the
government and in favor of the people. However, in Philippine Judiciary which took effect on June 1, 2004
conflicts affecting prosperity, development and the supersedes the Canons of Judicial Ethics and the Code
economy, deference must be accorded to the political of Judicial Conduct. Provided, however, that in case of
branches of the government. deficiency or absence of specific provisions in this New
Code, the Canons of Judicial Ethics and Code of Judicial
In the case of Lumanlaw v. Peralta, GR No. 164953, Conduct shall be applicable in a suppletory character
February 13, 2006, a decision penned by the Chief (2007, 2009 Bar Questions).
Justice himself, the Court ordered the release of a
detainee who had been imprisoned at the Manila City This was adopted from the universal declaration of
Jail for almost two years but had not yet been standards for ethical conduct embodied in the
arraigned. Bangalore Draft as revised at the Round Table
Conference of Chief Justices at the Hague.
In the case of Republic, et al. v. Judge Gingoyon and
Philippine International Air Terminals Co., Inc., GR No. The purpose of the New Code of Judicial Conduct for
166429, February 1, 2006, the Court upheld PIATCOs the Philippine Judiciary is to update and correlate the
right to be paid Php300 billion before the Government code of judicial conduct and canons of judicial ethics
can take over the Ninoy Aquino International Airport adopted for the Philippines, and also to stress the
Passenger Terminal III facilities. Philippines solidarity with the universal clamor for a
universal code of judicial ethics (See aforementioned
SOURCES "four Ins" and "four ACID" problems by Chief Justice
Artemio V. Panganiban).
The two sources of judicial ethics
NOTE: The New Code contains 6 Canons and 44 Rules.
a. New Code of Judicial Conduct for the Philippine
Judiciary (Bangalore Draft); Q: One of the foundations of the Bangalore Draft of
b. Code of Judicial Conduct the Code of Judicial Conduct is the importance in a
modern democratic society of what? (2011 Bar
New Code of Judicial Conduct for the Philippine Question)
Judiciary v. Code of Judicial Conduct
A: Public confidence in its judicial system and in the
NEW CODE OF JUDICIAL moral authority and integrity of its judiciary.
CODE OF JUDICIAL
CONDUCT FOR THE
CONDUCT The six (6) canons under the New Code of Judicial
PHILIPPINE JUDICIARY
Focuses on the Concerned primarily Conduct for the Philippine Judiciary
institutional and with the institutional
personal independence independence of the 1. Independence
of judicial officers judiciary. 2. Integrity
3. Impartiality
Contains eight norms of Contained three
4. Propriety
conduct that judges guidelines explaining
5. Equality
shall follow what judges should do
6. Competence and Diligence
* Canon 1 of the 1989
Code created a weaker Duties of a magistrate that will bolster the publics
mandate. confidence to our judicial system
4. Duty of Financial Transparency and duty to avoid Judges must decide cases and resolve matters with
financial conflicts of interest (NCJC, Sec. 7, Canon 4) dispatch because any delay in the administration of
5. Duty to be efficient, fair and prompt (NCJC, Sec. 5, justice deprives litigants of their right to a speedy
Canon 6) disposition of their case and undermines the peoples
6. Duty to be free from favor, bias, or prejudice (NCJC, faith in the judiciary. Indeed, justice delayed is justice
Sec. 1, Canon 3). denied (Angeliav. Grageda, A.M. No. RTJ-10-2220, Feb.
7, 2011).
CODE OF JUDICIAL CONDUCT (1989)
Rule 1.02, Canon 1
Applicability A judge should administer justice impartially
and without delay.
This code applies suppletorily.
CANON 3
Rule 2.03, Canon 2 A JUDGE SHOULD PERFOM OFFICIAL DUTIES
A judge shall not allow family, social, or other HONESTLY, AND WITH IMPARTIALITY AND
relationships to influence judicial conduct or DILIGENCE.
judgment.
investigation (Conquilla v. Bernando, A.M. No.MTJ-09- by law. Rules prescribing the time within which certain
1737, Feb. 9, 2011). acts must be done are indispensable to prevent
needless delays in the orderly and speedy disposition
Rule 3.02, Canon 3 of cases. Thus, the 90-day period is mandatory (Re:
In every case, a judge shall endeavor Cases Submitted for Decision Before Hon. Teresito A.
diligently to ascertain the facts and the Andoy, A.M. No. 09-9-163-MTC, May 6, 2010).
applicable law unswayed by partisan
NOTE: The Court has repeatedly emphasized the need for
interests, public opinion or fear of criticism.
judges to resolve their cases with dispatch. Delay does not
only constitute a serious violation of the parties
A judge is expected to decide cases only on the basis constitutional right to speedy disposition of cases, it also
of the applicable law on the matter, not on any other erodes the faith and confidence of the people in the judiciary,
lowers its standards, and brings it into disrepute (Office of
extraneous factors, such as public opinion, personal
the Court Administrator v. Quilatan, A.M. No. MTJ-09-1745,
convictions and partisan interests (Lapena, 2009). Sept. 27, 2010).
CANON 5,
A JUDGE SHOULD REGULATE EXTRAJUDICIAL
ACTIVITIES TO MINIMIZE THE RISK OF
CONFLICT WITH JUDICIAL DUTIES.
(1995, 1997, 1999, 2000, 2002 Bar Questions)
A judge should so manage investments and other
A judge should regulate his extra-judicial activities so financial interests as to minimize the number of cases
as to minimize the risk of conflict with judicial duties. giving grounds for disqualification. (Rule 5.02)
QUALITIES
Judges must reject pressure by maintaining
(NEW CODE OF JUDICIAL CONDUCT) independence from, but not limited to the following:
INDEPENDENCE
1. Independence from public officials the public laid
their confidence on the fact that the official is
CANON 1 mentally and morally fit to pass upon the merits
JUDICIAL INDEPENDENCE IS A PRE-REQUISITE of their varied intentions.
TO THE RULE OF LAW AND A FUNDAMENTAL 2. Independence from government as a whole
GUARANTEE OF A FAIR TRIAL. avoid inappropriate connections, as well as any
situation that would give rise to the impression of
A JUDGE SHALL, THEREFORE, UPHOLD AND the existence of such inappropriate connections.
EXEMPLIFY JUDICIAL INDEPENDENCE IN BOTH 3. Independence from family, social, or other
ITS INDIVIDUAL AND INSTITUTIONAL ASPECTS. relationships Do not sit in litigation where a near
relative is a part of or counsel; be independent
from judicial colleagues (Sec. 2) and avoid such
Judicial Independence actions as may reasonably tend to wake the
suspicion that his social or business relations
An independent Judiciary is one free from constitute an element in determining his judicial
inappropriate outside influence. course.
Judicial independence is a pre-requisite to the rule of 4. Independence from public opinion only guide is
law and a fundamental guarantee of a fair trial. A the mandate of law.
judge shall, therefore, uphold and exemplify judicial
independence in both its individual and institutional Q: In a civil case submitted for a decision, Judge
aspects (NCJC, Canon 1). Corpuz-Macandog acted on it based on a telephone
call from a government official telling her to decide
Individual Judicial Independence focuses on each the case in favor of the defendant, otherwise she will
particular case and seeks to insure his or her ability to be removed. The judge explained that she did so
decide cases with autonomy within the constraints of under pressure considering that the country was
the law while Institutional Judicial Independence under a revolutionary government at that time. Did
focuses on the independence of the judiciary as a the judge commit an act of misconduct?
branch of government and protects judges as a class
(In the Matter of the Allegations Contained in the A: Yes. A judge must decide a case based on its merits.
Columns of Mr. Amado P. Macasaet Published in For this reason, a judge is expected to be fearless in
Malaya dated Sept. 18, 19, 20 and 21, 2007). the pursuit to render justice, to be unafraid to
displease any person, interest or power, and to be
NOTE: The treatment of independence as a single Canon is equipped with a moral fiber strong enough to resist
the primary difference between the new Canon 1 and the temptation lurking in her office. Here, it is improper for
Canon 1 of the 1989 Code. a judge to have decided a case based only on a
directive from a government official and not on the
Section 1, Canon 1, NCJC judges own ascertainment of facts and applicable law
Judges shall exercise the judicial function (Ramirez v. Corpuz-Macandog, A.M. No. R-351-RTJ,
independently on the basis of their assessment Sept. 26, 1986).
of the facts and in accordance with a
conscientious understanding of the law, free of Q: Mayor C was shot by B, the bodyguard of Mayor D,
any extraneous influence, inducement, inside the court room of Judge Dabalos.
pressure, threat or interference, direct or Consequently, an information with no bail
indirect, from any quarter or for any reason. recommendation was filed against B and D. The
murder case was then scheduled for raffle but before
the scheduled date, the son of Mayor C together with
their counsel, Atty. Libarios, and other sympathizers
Judges should inspire public confidence in the judiciary staged a rally demanding immediate arrest of the
which can be attained only if judges are perceived by accused. Judge Dabalos then issued an order without
the public to be fair, honest, competent, principled, prior hearing directing the issuance of a warrant of
dignified and honorable. Accordingly, the first duty of arrest against the accused. Did the judge commit an
judges is to conduct themselves at all times in a act of misconduct?
manner that is beyond reproach.
Sec. 3, Canon 1, NCJC It is intended to ensure that judges are spared from
Judges shall refrain from influencing in any potential influence of family members by disqualifying
manner the outcome of litigation or dispute them even before any opportunity for impropriety
pending before another court or administrative presents itself.
agency.
(Principle of Subjudice) The term judges family include:
1. Judges spouse
A judge is prohibited from making public statements in
2. Son
the media regarding a pending case so as not to arouse
3. Daughter
public opinion for or against a party. (2007 Bar
4. Son-in-law
Question)
5. Daughter-in-law
6. Other relative by consanguinity or affinity within
This section affirms that a judges restraint from
the sixth civil degree, or
exerting influence over other judicial or quasi-judicial
7. Person who is a companion or employee of the
bodies is required for more than just propriety.
judge and who lives in the judges household
(NCJC of the Philippine Judiciary-Annotated,
Any attempt, whether successful or not, to influence
February 2007).
the decision-making process of another judge,
especially one who is of lower rank and over whom a
When the judge is related to one of the parties within
judge exercises supervisory authority constitutes
the sixth degree of consanguinity or affinity, a judges
serious misconduct.
disqualification to sit in a case is mandatory.
NOTE: If the consultation is purely on an academic or
hypothetical basis, and the judge does not surrender his or NOTE: Judges should ensure that their family members,
her independent decision making, there can be no breach of friends and associates refrain from creating the impression
Sections 2 and 3 of Canon 1 of the New Code. that they are in a position to influence the judge. Judges
Integrity is essential not only to the proper discharge than his legal wife, Judge Marcos has demonstrated
of the judicial office but also to the personal demeanor himself to be wanting in integrity, thus, unfit to remain
of judges. (NCJC, Canon 2) The integrity of the judiciary in office and continue discharging the functions of a
rests not only upon the fact that it is able to administer judge. (Re: Complaint of Mrs. Rotilla A. Marcos and
justice but also upon the perception and confidence of Her Children against Judge Ferdinand J. Marcos, RTC,
the community that people who run the system have Br. 20, Cebu City, A.M. No. 97-2-53 RTC, July 6, 2001)
done justice. Justice must not be merely done but
must also be seen to be done. (Panaligan v. Judge Ibay, Judges must always wear a robe at hearings
A.M. No. TJ-06-1972, June 21, 2006)
A judge must take care not only to remain true to the
In the Judiciary, moral integrity is more than a cardinal high ideals of competence and integrity his robe
virtue, it is a necessity (Pascual v. Bonifacio, AM No. represents, but also that he wears one in the first place
RTJ-01-1625, Mar. 10, 2003). Judges must be models (Chan v. Majaducan A.M. No. RTJ-02-1697, Oct. 15,
of uprightness, fairness and honesty (Rural Bank of 2003).
Barotac Nuevo, Inc v. Cartagena, A.M. No. 707-MJ, July
21, 1978). Sec. 2, Canon 2, NCJC
The behavior and conduct of judges must
NOTE: Under the 1989 Code, the values of INTEGRITY and
reaffirm the peoples faith in the integrity of
INDEPENDENCE were grouped together, but the New Code
of Judicial Conduct separated them to emphasize the need the Judiciary.
to maintain a life of PERSONAL and PROFESSIONAL
INTEGRITY in order to properly carry out their judicial Justice must not merely be done, but must
functions. also be seen to be done.
a literary work and, more importantly, the purpose of courts for grievances look upon them also as part of the
the writing is to resolve a dispute. As a result, judges judiciary. In performing their duties and responsibilities,
adjudicating cases are not subject to a claim of legal court personnel serve as sentinels of justice, that any act of
impropriety they commit immeasurably affects the honor
plagiarism.
and dignity of the judiciary and the people's confidence in
the judiciary. They are, therefore, expected to act and
Although as a rule, practicing lawyers receive behave in a manner that should uphold the honor and
compensation for every pleading or paper they file in dignity of the judiciary, if only to maintain the peoples
court or for every opinion they render to clients, confidence in the judiciary (Guerrero v.Ong, A.M. No. P-09-
lawyers also need to strive for technical accuracy in 2676, Dec. 16, 2009).
their writings. They should not be exposed to charges
of plagiarism in what they write so long as they do not Q: While Judge Tuparin was in his chambers dictating
depart, as officers of the court, from the objective of an order to a stenographer, two lawyers who were in
assisting the Court in the administration of justice (In the courtroom waiting for the start of the session
matter of the Charges of Plagiarism etc.. Against almost came to blows as a result of a heated
Associate Justice Mariano C. Del Castillo, A.M. No. 10- argument. Tuparin came out of his chambers and
7-17-SC, February 8, 2011). after identifying the lawyers involved in the
commotion promptly declared them in contempt of
Sec. 3, Canon 2, NCJC court. Was the action of Judge Tuparin proper?
Judges should take or initiate appropriate
disciplinary measures against lawyers or court A: No. The act committed by the two lawyers was
personnel for unprofessional conduct of which indirect contempt violative of the rule punishing any
the judge may have become aware. improper conduct tending directly or indirectly, to
impede, obstruct, or degrade the administration of
justice, since the judge was then engaged in dictating
A judge may summarily punish any person including an order before the morning session was called. The
lawyers and court personnel, for direct contempt for act of the two lawyers constituted obstruction of the
misbehavior committed in the presence of or so near administration of justice, which was indirect contempt.
a court or a judge as to obstruct or interrupt the Accordingly, they could only be punished after notice
proceedings before the same (RRC, Rule 71). and hearing.
All court personnel, from the lowliest employees to the NOTE: A judge has both: the duty of rendering a just
clerks of court, are involved in the dispensation of justice like decision; and, doing it in a manner completely free from
judges and justices, and parties seeking redress from the suspicion as to his fairness and as to his integrity.
for inhibition but the same was denied by the judge. that a party cast some tenuous allegations of partiality
Did the judge commit any improper conduct? at the judge.
A: Yes. The rule is that a judge may not be legally Rule of necessity
prohibited from sitting in litigation, but when
circumstances appear that will induce doubt to his It states that a judge is not disqualified to sit in a case
honest actuations and probity in favor of either party, where there is no other judge available to hear and
or incite such state of mind; he should conduct a decide the case. Furthermore, when all judges will be
careful self-examination. He should exercise his disqualified as a result, it will not be permitted to
discretion in a way that the people's faith in the courts destroy the only tribunal with the power in the
of justice is not impaired. The better course for the premises. The doctrine operates on the principle that
judge under such circumstances is to disqualify himself. a basic judge is better than no judge at all. It is the duty
That way, he avoids being misunderstood; his of the disqualified judge to hear and decide the case
reputation for probity and objectivity is preserved. regardless of objections or disagreements (Parayno
What is more important, the ideal of impartial v.Meneses, G.R. No. 112684, Apr. 26, 1994).
administration of justice is lived up to. Here, the judge,
by assuming actual receipt by the respondents of Sec. 4, Canon 3, NCJC
proof of service of the motion for reconsideration, Judges shall not knowingly, while a
absolving Banco Filipino from paying the expenses of proceeding is before or could come before
production of documents, and suggesting to Banco them, make any comment that might
Filipino what evidence to present to prove its case, reasonably be expected to affect the outcome
transgressed the boundaries of impartiality. Thus, the of such proceeding or impair the manifest
judge should inhibit himself (Ty v. Banco Filipino fairness of the process.
Savings and Mortgage Bank, et. al., G.R. Nos. 149797-
98, Feb. 13, 2004). Nor shall judges make any comment in public
or otherwise that might affect the fair trial of
A trial judge can ask questions from witnesses. In any person or issue.
every examination of a witness, the court shall take
active part in examining him to determine his
credibility as well as the truth of his testimony and to A judges language, both written and spoken, must be
elicit the answers that it needs for resolving the issues guarded and measured, lest the best of intentions be
(Judicial Affidavit Rule, Sec. 7). misconstrued (Fecundo v. Berjamen,G.R. No. 88105,
Dec. 18, 1989).
NOTE: In disposing of a criminal case, a judge should avoid
Reason for the rule
appearing like an advocate for either party. It is also
improper for the judge to push actively for amicable
settlement against the wishes of the complainant. A judges This Section warns judges against making any
unwelcome persistence makes the judge vulnerable to comment that might reasonably be expected to affect
suspicions of favoritism (Montemayor v. Bermejo, Jr.,A.M. the outcome of the proceedings before them; or those
No.MTJ-04-1535, Mar. 12, 2004). that the judge may later decide but not yet before him;
or "impair the manifest fairness of the process.
Sec. 3, Canon 3,NCJC
Q: Justice Antonio Carpio penned a decision
Judges shall, so far as is reasonable, so
regarding the invalidity of the amended joint venture
conduct themselves as to minimize the
agreement between Public Estates Authority (PEA)
occasions on which it will be necessary for
and Amari Coastal Bay Development Corporation
them to be disqualified from hearing or
saying that the agreement is unconstitutional as PEA
deciding cases.
cannot transfer ownership of a reclaimed land to a
private corporation. Amari now filed a motion to
Meaning of duty to sit inhibit Justice Carpio on the ground of bias and pre-
judgment allegedly because he had previously wrote
It means that a judge must ensure that he will not be in his column in Manila Times a statement to the
unnecessarily disqualified from a case. effect that the law requires public bidding of
reclaimed projects and that the PEA-Amari contract is
A judge cannot inhibit himself as he pleases. A decision flawed for it was not bid by the PEA. Decide on the
to inhibit must be based on good, sound or ethical motion.
grounds, or for just and valid reasons. It is not enough
A: The motion to inhibit must be denied for three be obtained extra-judicially like out-of-court
reasons: observations.
This prohibition also disallows extra-judicial
1. The motion to inhibit must be denied if filed after
research on the internet.
a member of the court had already rendered his
opinion on the merits of the case. Here, the
motion was filed after Justice Carpio had already The judge previously served as a lawyer or was a
rendered a decision; material witness in the matter in controversy (CJC,
2. The ratio decidendi of the decision was not based Sec. 5(b), Canon 3);
on his statements on the column. Here, the
decision was based on constitutional grounds and A judge may be disqualified if he was formerly
not in the absence of public bidding; and associated with one of the parties or their counsel.
3. Judges and justices are not disqualified from
participating in a case just because they have A judge who previously notarized the affidavit of a
written legal articles on the law involved in the person to be presented as a witness in a case before
case (Chavez v. PEA, G.R. No. 133250, May 6, him shall be disqualified from proceeding with the
2003). case.
Not all comments are impermissible. Judges may A municipal judge who filed complaints in his own
express their open-mindedness regarding a pending court for robbery and malicious mischief against a
issue in cases where the judges comments do not party for the purpose of protecting the property
necessarily favor one side over the other. interests of the judges co-heirs, and then issued
warrants of arrest against the party, was found guilty
However, judges should avoid side remarks, hasty of serious misconduct and ordered dismissed from the
conclusions, loose statements or gratuitous bench before he was able to rescue himself (Oktubre
utterances that suggest they are prejudging a case. v. Velasco A.M. No. MTJ-02-02-1444, July 20, 2004).
Judges should be aware that the media might consider
them a good and credible source of opinion or ideas, The judge served as executor, administrator,
and therefore should refrain from making any guardian, trustee or lawyer in the case or matter in
comment on a pending case. Not only is there danger controversy, or a former associate of the judge
of being misquoted, but also of compromising the served as counsel during their association, or the
rights of the litigants in the case. judge or lawyer was a material witness therein (NCJC,
Sec. 5(d), Canon 3);
The judge is related by consanguinity or affinity to a prohibition provided for under the Code does not
party litigant within the 6th civil degree or to counsel apply to special proceeding which is not controversial
within the 4th civil degree (NCJC, Sec. 5(f), Canon 3); in nature and since she does not have any pecuniary
interest in the case. Is the contention correct?
NOTE: A preliminary injunction issued by a judge in favor of
his sister before inhibiting himself was found reprehensible A: No. A judge who is related to a party within the 6th
(Hurtado v.Judajena, G.R. No. L-40603, July 13, 1978).
degree of consanguinity is mandated to inhibit himself
from hearing the case notwithstanding lack of
No judge should preside in a case which he is not
pecuniary interest in the case. This is so because lack
wholly free, disinterested, impartial and independent
of such interest does not mean that she can already be
(Garcia v. De La Pena. A.M.No.MTJ-92-637, Feb. 9,
free from bias and partiality in resolving the case by
1994).
reason of her close blood relationship as evident from
the fact that here, she waived the publication
The judge knows that his or her spouse or child has a
requirement in order to save the petitioner from the
financial interest as heir, legatee, creditor, fiduciary
payment of publication fee. Thus, the judges taking
or otherwise, in the subject matter in controversy or
cognizance of the petition is improper (Villaluz
in a party to the proceeding, or any other interest
v.Mijares, A.M. No. RTJ -98-1402 288, Apr. 3, 1998).
that could be substantially affected by the outcome
of the proceedings (NCJC, Sec. (g), Canon 3).
Degree of compliance required by the rule under
This rule is intended to ensure judges impartiality by Canon 3, Section 5 of NCJC
preventing situations in which a judge must consider
familial interests in the conflicts before him or her. If Strict compliance of the rule is required so as to
the public is aware of a family members financial protect the rights of the parties and assure an
interest, the public may question the judges impartial administration of justice, as well as to
impartiality prevent erosion of the people's confidence in the
judiciary (Marfil v. Cuachon, A.M. No. 2360-MJ ,Aug.
Q: When Atty. Rojas was appointed as a judge, he 31, 1981). The grounds for disqualification of a judge
inherited a criminal case in which he acted as enumerated under Sec. 5 of Canon 3 are not exclusive.
prosecutor. He explained that his delay in inhibiting The provision provides that it is not limited to the
himself from presiding on that case was because it grounds therein provided.
was only after the belated transcription of the
stenographic notes that he remembered that he
handled that case. He also says that the counsels did Sec. 6, Canon 3, NCJC
not object and he never held full-blown hearings A judge disqualified as stated above may,
anyway. Should Judge Rojas be reprimanded? instead of withdrawing from the proceeding,
disclose on the records the basis of
A: Yes. The Rules of Court prevent judges from trying disqualification.
cases where they acted as counsel without the
consent of the parties. This prevents not only a conflict If, based on such disclosure, the parties and
of interest but also the appearance of impropriety on lawyers, independently of the judges
the part of the judge. Here, the judge should not have participation, all agree in writing that the
taken part in the proceeding as his impartiality will reason for inhibition is immaterial or
naturally be questioned considering that he previously unsubstantial, the judge may then participate
handled the case as prosecutor. He should administer in the proceeding.
justice impartially & without delay. The prohibition The agreement, signed by all parties and
does not only cover hearings but all judicial acts (e.g. lawyers, shall be incorporated in the record of
orders, resolutions) some of which, Judge Rojas did Types of disqualification
the proceedings.
make (Re: Inhibition of Judge Eddie R. Rojas, A.M. No.
98-6-185-RTC, Oct. 30, 1998). 1. Mandatory or compulsory disqualification
2. Voluntary disqualification or inhibition
Q: Judge Mijares was charged with grave misconduct
for taking cognizance and deciding a special Inhibition
proceeding for correction of entry in the record of her
grandson, notwithstanding such relationship. It was An act when a judge personally prevents himself from
also alleged that the judge dispensed with the taking cognizance of the case. This is made through a
publication requirement in said proceeding. In her written petition to inhibit which shall state the
answer, Judge Mijares contended that the grounds for the same. The explanation of the judge
UNIVERSITY OF SANTO TOMAS
123 FACULTY OF CIVIL LAW
JUDICIAL ETHICS
whether or not to take cognizance of the case must mandamus to compel him to act. Judges decision to
also be in writing. continue hearing a case in which he is not legally
prohibited from trying notwithstanding challenge to
If the judge inhibits himself from taking cognizance of his objectivity may not constitute reversible error.
the case, the same cannot be appealed. However, the
judge should not immediately inhibit himself. He The filing of an administrative case against a judge
should make a careful examination by first taking into disqualify does not automatically disqualify him from
consideration the following: sitting in a case. It must be shown that there are other
1. General consideration whether or not peoples acts or conducts by the judge which constitute a
faith in the judicial system will be impaired ground for his disqualification.
2. Special consideration He must reflect on the
probability that the losing party will nurture at the A judge may by mandamus be compelled to act on
back of his mind that he tilted the scale of justice questions regarding his disqualification from sitting in
a case.
Disqualification v. Inhibition
Time to file the petition to disqualify a judge
DISQUALIFICATION INHIBITION
There are specific The rule only provides It must be filed before rendition of the judgment, and
grounds enumerated broad basis for cannot be raised on appeal. Otherwise, the parties are
under the rules of court inhibition. deemed to have waived any objection regarding the
for disqualification. impartiality of the judge.
The judge has no The rule leaves the
discretion; mandatory matter to the judges Q: A judge rendered a decision in a criminal case
sound discretion finding the accused guilty of estafa. Counsel for the
accused filed a motion for reconsideration which was
Grounds for mandatory disqualification submitted without arguments. Later, another lawyer
entered his appearance for the accused. The judge
1. When he, or his wife, or child is pecuniarily issued an order inhibiting himself from further sitting
interested as heir, legatee, creditor, or otherwise; in the case because the latter lawyer had been among
2. When he is related to either party within the 6th those who recommended him to the bench. Can the
degree of consanguinity or affinity or to counsel judges voluntary inhibition be sustained?
within the 4th civil degree;
3. When he has been an executor, guardian, A: The judge may not voluntarily inhibit himself by the
administrator, trustee, or counsel; or mere fact that a lawyer recommended him to the
4. When he has presided in an inferior court where bench. In fact, the appearance of said lawyer is a test
his ruling or decision is subject to review, without as to whether the judge can act independently and
the written consent of the parties. (Rule 137, RRC) courageously in deciding the case according to his
conscience. Inhibition is not allowed at every instance
Voluntary inhibition of a judge that a friend, classmate, associate or patron of a
presiding judge appears before him as counsel for one
The judge may in his discretion inhibit himself, for just of the parties to a case. Utang na loob, per se, should
and valid reasons other than the grounds for not be a hindrance to the administration of justice. Nor
mandatory disqualification. The rule on voluntary should recognition of such value in Philippine society
disqualification or inhibition is discretionary upon the prevent the performance of ones duties as judge.
judge on the basis of his conscience. However, in order to avoid any suspicion of partiality,
it is better for the judge to voluntarily inhibit himself
This leaves the discretion to the judge to decide for (Query of Executive Judge Estrella T. Estrada, Regional
himself questions as to whether he will desist from Trial Court of Malolos, Bulacan, on the Conflicting
sitting in a case for other just and valid reasons with Views of Regional Trial Court Judges Masadao and
only his conscience to guide him, unless he cannot Elizaga Re: Criminal Case No. 4954-M, A.M. No. 87-9-
discern for himself his inability to meet the test of cold 3918-RTC, Oct. 26, 1987).
neutrality required of him, in which event the
appellate court will see to it that he disqualifies himself. Q: Does a judges active participation during the
hearing of the writ of preliminary injunction amount
A decision to disqualify himself is not conclusive and to an evident display of his bias and partiality in favor
his competency may be determined on application for
of the private respondents and should he therefore Prohibition provided by the Code
disqualify himself from further hearing the civil case?
It prohibits not only actual impropriety but even the
A: No. Mere intervention of the respondent judge mere appearance of impropriety.
during the hearing of preliminary injunction by simply
asking the materiality of a question directed upon the Appearance of impropriety
witness and ruling against the petitioners are within
the prerogatives and powers of the judge. The fact that When the conduct of a judge would create
the judge asked questions in the course of the trial unreasonable minds a perception that the judges
does not make him a biased judge (Hizon v. Dela ability to carry out judicial responsibilities with
Fuente,G.R. No. 152328, Mar. 23, 2004). integrity, impartiality and competence is impaired.
Remittal of disqualification NOTE: Acts done by a judge which are not illegal may still
constitute a violation of this rule.
A judge disqualified may, instead of withdrawing from
the proceeding, disclose in the records the basis of Q: After the prosecution cross-examined Sheila, a
disqualification. If, based on such disclosure, the witness for the accused, Judge Pedro asked her ten
parties and lawyers, independently of the judges additional questions that were so intense, they made
participation, all agree in writing that the reason for her cry. One question forced Sheila to admit that her
the inhibition is immaterial or insubstantial; the judge mother was living with another man, a fact that
may then participate in the proceeding. The weighed against the accused. This prompted the
agreement, signed by all parties and lawyers, shall be latters counsel to move to move to expunge the
incorporated in the record of the proceedings. (NCJC, judges questions for building on the prosecutions
Sec. 6, Canon 3) case. Judge Pedro denied the motion, insisting that
bolstering a partys case is incidental to the courts
Requirements for a judge to continue hearing a case desire to be clarified. Did Judge Pedro commit an
despite the existence of reasons for disqualifications impropriety? (2011 Bar Question)
1. The bona fide disclosure to the parties in A: Yes, because he effectively deprived the defense of
litigation; and its right to due process when he acted both as
2. The express acceptance by all the parties of the prosecutor and judge.
cited reason as not material or substantial.
Examples of acts of a judge which are not illegal but
PROPRIETY will constitute a violation of this rule
intend to use his position as a judge to influence the ordered Reyes to fix her hair. Is the respondent judge
outcome of his brothers election protest, it cannot be guilty of impropriety and gross misconduct?
denied that his presence in the courtroom during the
hearing of his brothers case would immediately give A: Yes. Judges should avoid impropriety and the
cause for the community to suspect that his being a appearance of impropriety in all of their activities.
colleague in the judiciary would influence the judge Judges should conduct themselves in a way that is
trying the case to favor his brother (Vidal v. Judge consistent with the dignity of the judicial office. Judges,
Dojillo Jr., A.M. No. MTJ-05-1591, July 14, 2005). like any other citizen, are entitled to freedom of
expression, belief, association and assembly, but in
NOTE: The Judges act in riding in defendants car deserves exercising such rights, they should always conduct
the stern probation of the Court. By such act, he openly themselves in such a manner as to preserve the dignity
exposed himself and the office he holds to suspicion, thus of the judicial office and the impartiality and
impairing the trust and faith of the people in the
independence of the judiciary.
administration of justice. A judges official conduct should be
free from the appearance of impropriety and his personal
conduct and behavior should be beyond reproach (Spouses The conduct of Judge Duque fell short of the exacting
Cabreana v. Avelino A.M. No. 1733 CFI, Sept. 30, 1981). standards for members of the judiciary. He failed to
behave in a manner that would promote confidence in
Q: Judge Duque of the RTC was charged with the judiciary. Considering that a judge is a visible
Impropriety, Corruption and Gross Misconduct. representation of the law and of justice, he is naturally
Reyes alleged that she was a party-in-intervention in expected to be the epitome of integrity and should be
Land Registration filed by the Philippine Savings Bank beyond reproach. Judge Duques conduct indubitably
against the spouses Choi. In a Decision, Judge Duque bore the marks of impropriety and immorality. He
granted the motion for the issuance of a writ of failed to live up to the high moral standards of the
possession in favor of the bank. Complainant Reyes judiciary and even transgressed the ordinary norms of
filed an Urgent Petition for Lifting and Setting Aside decency of society. Had Judge Duque not retired, his
of Writ of Possession and Quashal of Notice to misconduct would have merited his dismissal from the
Vacate claiming that she bought the subject service (Reyes v. Duque, A.M. No. RTJ-08-2136 , Sept.
property from the spouses Choi and that she was in 21, 2010).
actual possession of the property with full knowledge
of the bank. At the hearing, Atty. Ubana, the lawyer Sec. 2, Canon 4, NCJC
of Reyes, introduced her to Judge Duque who As a subject of constant public scrutiny, judges
allegedly gave Reyes 30 days to settle matters with must accept personal restrictions that might
the bank. She was unable to re-negotiate with the be viewed as burdensome by the ordinary
bank. Reyes then allegedly received a phone call from citizen and should do so freely and willingly. In
Judge Duque and he instructed Reyes to go to his particular, judges shall conduct themselves in
house and bring some money in order that he can a way that is consistent with the dignity of the
deny the pending motion to break open. When she judicial office.
already had the money, she went to his house. The
son of Judge Duque opened the gate. At his house, Membership in the judiciary circumscribes ones
Judge Duque demanded money from her. personal conduct and imposes upon him certain
restrictions, the faithful observance of which, is the
Another incident happened, whereby Reyes went to price one has to pay for holding such a distinguished
the house of Judge Duque for the payment of a sum position. Accordingly, a magistrate of the law must
of money. Judge Duque allegedly scolded her for not comport himself in a manner that his conduct must be
bringing the whole amount. Judge Duque then locked free of a whiff of impropriety, not only with respect to
the main door of his house and asked Reyes to step the performance of his official duties, but also to his
into his office. Judge Duque held the waist of Reyes, behavior outside his sala and as a private individual.
embraced and kissed her. Reyes tried to struggle and His conduct must be able to withstand the most
free herself. Judge Duque raised her skirt, opened her searching public scrutiny, for the ethical principles and
blouse and sucked her breasts. He touched her sense of propriety of a judge are essential to the
private parts and attempted to have sexual preservation of the peoples faith in the judicial system
intercourse with Reyes. Reyes shouted for help but lest public confidence in the judiciary would be eroded
the TV was too loud. As a desperate move, Reyes by the incompetent, irresponsible and negligent
appealed to Judge Duque saying: kung gusto mo, conduct of judges (Bayaca v. Judge Ramos, A.M. No.
huwag dito. Sa hotel, sasama ako sayo. Judge MTJ-07-1676, Jan. 29, 2009).
Duque suddenly stopped his sexual advances and
This section allows the judge to participate in legal The rule disqualifying a municipal judge from engaging in the
academia and public discourse on legal matters with practice of law seeks to avoid the evil of possible use of the
the proviso that there shall be no interference in the power and influence of his office to affect the outcome of
performance of the judges primary functions with the litigation where he is retained as counsel. Compelling
respect to his or her jurisdiction. In dealing with the reasons of public policy lie behind this prohibition, and
judges are expected to conduct themselves in such a manner
media however, the Philippine Judicial Academy
as to preclude any suspicion that they are representing the
suggests that a judge or court should avoid interests of party litigant (Dia-Anonuevo v. Bercacio, A.M. No.
acrimonious debate with reporters and the public, for 177-MTJ, Nov. 27, 1975)
a knee jerk reaction from the court or judge may only Q: Judge Malanyaon was present in the hearing of her
provoke negative follow-up reports and articles. daughter to advise her on what to do and say during
the hearing, to the point of coaching her. Was the act
This sections tolerance of judicially-related activities is of the judge considered contrary to Section 11, Canon
limited by Sec. 12, Article VIII of the Constitution, which 4 of the NCJC, prohibiting judges from engaging in the
prohibits judges from being designated to any agency private practice of law or giving professional advice
performing quasi-judicial or administrative functions. to clients?
Judge cannot be a member of Provincial Committee A: Yes. The Court held that the judge engaged in the
on Justice private practice of law by assisting his daughter at his
wifes administrative case, coaching his daughter in
Such membership would violate the constitutional making manifestations or posing motions to the
provision on the discharge by members of the judiciary hearing officer, and preparing the questions that he
of administrative functions in quasi-judicial or prompted to his daughter (Decena vs. Malanyaon A.M.
administrative agencies. This does not mean, however, No. RTJ-10-2217, April 8, 2013).
that judges should adopt an attitude of monastic
insensibility or unbecoming indifference to the Q: Respondent Judge Lelina was administratively
Provincial/City Committee on Justice. As incumbent charged for violation of Section 35, Rule 138 of the
judges, they form part of the structure of government. Rules of Court and Rule 5.07, Canon 5 of the Code of
Even as non-members, Judges should render Judicial Conduct. He was then preventively
assistance to said Committees to help promote the suspended by the Court on account of an earlier
laudable purposes for which they exist, but only when administrative complaint filed charging him with
such assistance may be reasonably incidental to the harassment in connection with the criminal
fulfillment of their judicial duties. (In Re: Designation complaint for Rape and the complaint for Abduction
of Judge Rodolfo U. Manzano, A.M. No. 88-7-1861-RTC, with Rape and Slight Illegal Detention. He then filed
Oct. 5, 1988) a Motion for Early Resolution of the criminal case
praying for a resolution in his favor. Subsequently he
NOTE: Under Sec. 10(c), Section 10, Canon 4, a judge may
appealed to the Court to grant him the permission to
engage in private business without the written permission of
the Supreme Court (Borre v. Moya,A.M. No. 1765-CFI, Oct.
practice law during the remainder of his preventive
17, 1980). suspension or, if such cannot be granted, to consider
him resigned from the judiciary. It turned out that
before he filed the above-said Manifestation, Appeal
and Omnibus Motion, Judge Lelina engaged in the XPN: Section 15 of Canon 4 of the NCJC.
private practice of law. Did the judge commit any
unethical act? Sec. 13, Canon 4, NCJC
Judges and members of their families shall
A: Yes. Since Section 35, Rule 138 of the Rules of Court neither ask for nor accept, any gift, bequest,
and Section 11, Canon 4 of the New Code of Judicial loan or favor in relation to anything done or
Conduct for the Philippine Judiciary does not make to be done or omitted to be done by him or
any distinction in prohibiting judges from engaging in her in connection with the performance of
the private practice of law while holding judicial office, judicial duties.
no distinction should be made in its application. In the Sec. 14, Canon 4, NCJC
present case, Judge Lelina having been merely Judges shall not knowingly permit court
suspended and not dismissed from the service, he was staff or others subject to their influence,
still bound under the prohibition. (Binalay v. Lelina direction or authority, to ask for, or accept,
Jr,A.M. No. RTJ-08-2132, July 31, 2009) any gift, bequest, loan or favor in relation to
anything done, to be done or omitted to be
Q: In an extrajudicial settlement of the estate of the done in connection with their duties or
late Juan Mayaman, the heirs requested Judge functions.
Maawain, a family friend, to go over the document
prepared by a new lawyer before they signed it.
Judge Maawain agreed and even acted as an This section is intended to assure that what the judge
instrumental witness. Did Judge Maawain engage in cannot do directly (soliciting gifts), may not be done
the unauthorized practice of law? Why? (2002 Bar indirectly through the use of employees or staff
Question) members.
A: No. In the case of de Castro v. Capulong, 118SCRA 5 NOTE: Section 13 should be read in conjunction with Section
(1982), the Supreme Court held that a judge who 7(d) of R.A. 6713 (Code of Conduct and Ethical Standards for
merely acted as a witness to a document and who Public officials and Employee) which provides that, public
officials and employees shall not solicit or accept, directly or
explained to the party waiving his rights of redemption
indirectly, any gift, gratuity, favor, entertainment, loan or
over mortgaged properties the consequences thereof, anything of money value from any person in the course of
does not engage himself in the practice of law. This their official duties or in connection with any operation being
appears to be more applicable to the case of Judge regulated by, or any transaction which may be affected by
Maawain. He did not give professional advice in the functions of their office.
anticipation of litigation. He was just asked to review a
deed of extrajudicial settlement of estate. He signed Q: Judge Ganay received law books worth fifty
merely as an instrumental witness and not as a legal thousand pesos, cellular phones and monthly cellular
counsel. Besides, his act was an isolated act. phone prepaid cards from the property guardians of
the late Rev. Fr. Aspiras, who was then the ward of
the court. Further, he issued Orders directing the
Sec. 12, Canon 4, NCJC
manager of the PNB, La Union Branch to draw checks
Judges may form or join associations of
amounting to thousands of pesos from the account of
judges or participate in other organizations
the late Rev. Fr. Aspiras
representing the interests of judges.
A: Respondent Judge Ganay clearly fell short of the
exacting standards set by the New Code of Judicial
This rule recognizes the difference between Conduct for the Philippine Judiciary. His acts constitute
membership in associations of judges and impropriety which the Court cannot allow.
membership in associations of other legal Respondent Judge Ganays act of issuing Orders to
professionals. While attendance at lavish events draw checks create the impression of impropriety and
hosted by lawyers might create an appearance of subjects the court to suspicion of irregularities in the
impropriety, participation in judges-only organizations conduct of the proceedings (Heirs of the late Rev. Fr.
does not. Jose Aspiras v.Judge Ganay, A.M. No. RTJ-07-2055, Dec.
17, 2009).
Rules relating to prohibition against accepting gifts,
bequests, or loans Q: X was charged with grave threat before the sala of
Judge Elias Lelina. During the pendency of the case, X
GR: Sections 13 and 14 of Canon 4 of the NCJC. offered a business partnership to the daughter of
Judge Lelina who then accepted the same. Should the b) By accepting a gift in consideration of the
judge be disciplined? execution of an act which does not constitute a
crime in consideration with the performance of
A: Yes. Judges should not allow members of their his official duty.
family to accept gifts nor favor in relation to anything c) By refraining, from doing something which it is his
done, to be done, or omitted to be done by the judge official duty to do, in consideration of gift or
in connection with the performance of his official promise (RPC, Art. 210).
duties. Here, the judges act of allowing his daughter
to accept the business offer of X despite knowledge of Anti-Graft and Corrupt Practices Act: Judges receiving
the possible intention of the latter who has pending gifts or other material benefits
case in his sala is improper (Dulay v. Lelina Jr., A.M. No.
RTJ-99-1516, July 14, 2005). GR: Yes, the judge is liable criminally for directly or
indirectly receiving gifts, presents or other pecuniary
Sec. 15, Canon 4, NCJC or material benefit for himself or for another under
Subject to law and to any legal conditions provided in Section 2, pars. b and c of the
requirements of public disclosure, judges law.
may receive a token gift, award or benefit
as appropriate to the occasion on which it is XPN: Unsolicited gifts or presents of small value
made, provided that such gift, award or offered or given as a mere ordinary token of gratitude
benefit might not reasonably be perceived or friendship according to local custom or usage (RA
as intended to influence the judge in the 3019, Section 14)
performance of official duties or otherwise
NOTE: Under Section 16 Article XI of the 1987Constitution
give rise to an appearance of partiality. No loan, guarantee or other form of financial controlled
bank or financial institution to members of the Supreme
Court during their tenure.
Judges are allowed to accept token gifts, awards, or
benefits when given as a consequence of a special It is a serious misconduct for a judge to receive money from
occasion. a litigant in the form of loans which he never intended to pay
back. Even if the judge intends to pay, it is an act of
Gifts and grants allowed from foreign countries impropriety to take a loan from a party litigant. The judge
could not be wholly free from bias in deciding a case where
1. The acceptance and retention by a public official his lender is a party. A judge should always strive to be free
or employee of a gift of nominal value tendered from suspicion and all forms of improprieties (Ompoc v.
Judge Torres, A.M. No. MTJ-86-11, Sept. 27, 1989).
and received as a souvenir or mark of courtesy;
2. The acceptance by a public official or employee of NOTE: To ensure equality of treatment to all before the
a gift in the nature of a scholarship or fellowship courts is essential to the due performance of the judicial
grant or medical treatment; or office. As the guardians of justice, courts must adhere to the
3. The acceptance by a public official or employee of principle of equality. People expect the courts to be
travel grants or expenses for travel taking place unaffected by differences in social status, degree of
entirely outside the Philippines (such as education and even physical abilities.
allowances, transportation, food and lodging) of
more than nominal value if such acceptance is EQUALITY
appropriate or consistent with the interest of the
Philippines, and permitted by the head office, CANON 5
branch or agency to which the judge belongs (Sec. ENSURING EQUALITY OF TREATMENT TO ALL
7[d], R.A. 6713). BEFORE THE COURTS IS ESSENTIAL TO THE DUE
PERFORMANCE OF THE JUDICIAL OFFICE.
Indirect and direct bribery of judges
Acceptance of gifts given by reason of the office of the A judge must be able to render substantial justice and
judge is indirect bribery (RPC, Art. 211) Acts punishable maintain public confidence in the judicial system, by
in direct bribery are as follows: being aware of the diversity in society. With that
a) By agreeing to perform an act which constitute a awareness, a judge should not yield to first impression,
crime in connection with his official duties for a reach hasty conclusions or prejudge matters (Castillo v.
consideration. Judge Juan, 62 SCRA 124).
Sentence despite the deletion by the appellate court held guilty of the said charge. He moved for an
of that portion of the judgment imposing the penalty extension of time to file a motion for reconsideration.
of imprisonment. In the performance of his duties, Despite the extension of time given however, Judge
Judge Ramos failed to observe that diligence, Limsiaco failed to file his motion for reconsideration
prudence and circumspection which the law requires and the required explanation thrice. In another
in the rendition of any public service. If only Judge complaint against him for Delay in the Disposition of
Ramos had exercised the requisite thoroughness and a Case, the OCA issued an order for him to file a
caution, he would have noted not only the comment for the administrative complaint. Is the
modification of the monetary awards by the appellate respondent judge administratively liable for
court, but also the deletion of the penalty of unethical conduct and gross inefficiency under the
imprisonment upon which the Warrant of Arrest and provisions of the New Code of Judicial Conduct,
Commitment to Final Sentence that he signed was specifically, Sections 7 and 8 of Canon 1, and Section
based (Bayaca v. Judge Ramos,A.M. No. MTJ-07-1676, 5 of Canon 6?
Jan. 29, 2009).
A: Yes. A judge is the visible representation of the law,
Sec.1, Canon 6, NCJC and more importantly of justice; he or she must,
The judicial duties of a judge take precedence therefore, be the first to follow the law and weave an
example for the others to follow. For a judge to exhibit
over all activities.
indifference to a resolution requiring him to comment
on the accusations in the complaint thoroughly and
Duties of a judge under this section substantially is gross misconduct, and may even be
considered as outright disrespect for the Court. The
1. A judge must perform his judicial duties with office of the judge requires him to obey all the lawful
regard to a case where he is not disqualified to do orders of his superiors. After all, a resolution of the
so and, may not divest himself of such case if he is Supreme Court is not a mere request and should be
not so disqualified; and complied with promptly and completely. Such failure
2. A judge shall not inhibit himself simply to avoid to comply accordingly betrays not only a recalcitrant
sitting on difficult or controversial cases. streak in character, but has likewise been considered
as an utter lack of interest to remain with, if not
Q: An administrative case against Judge Calderon was contempt of the judicial system. A resolution of the
filed for incurring leaves of absence for almost a Supreme Court requiring comment on an
straight period of 3 years. In his comment, he claimed administrative complaint against officials and
that he was suffering from a lingering illness of employees of the judiciary should not be construed as
malignant hypertension which claim was supported a mere request from the Court. Nor should it be
by medical certificates prepared by his personal complied with partially, inadequately or selectively.
doctor. However, when the court physician Respondents in administrative complaints should
conducted some tests, the same contradicted the comment on all accusations or allegations against
diagnosis given by the judges personal doctor. Is them in the administrative complaints because it is
Judge Calderon guilty of gross misconduct? their duty to preserve the integrity of the judiciary.
A: Yes. A judge shall be cautious of his court duties. Moreover, the Court should not and will not tolerate
Here, the judge should have been aware that, in future indifference of respondents to administrative
frequently leaving his station, he has caused great complaints and to resolutions requiring comment on
disservice to many litigants and has denied them such administrative complaints. Under the
speedy justice (Re: Leaves of Absence Without circumstances, the conduct exhibited by Judge
Approval of Judge Eric Calderon, Municipal Trial Court Limsiaco constitutes no less than clear acts of defiance
Judge of Calumpit, Bulacan, A.M. No. 98-8-105-MTC, against the Courts authority. His conduct also reveals
Jan. 26, 1999). his deliberate disrespect and indifference to the
authority of the Court, shown by his failure to heed our
Q: Judge Limsiaco was charged with gross ignorance warnings and directives. Judge Limsiacos actions
of the law and procedure and violations of the Code further disclose his inability to accept our instructions.
of Judicial Conduct when it was established by the Moreover, his conduct failed to provide a good
records and by his own admission that he decided an example for other court personnel, and the public as
ejectment case before his sala more than two (2) well, in placing significance to the Courts directives
years after it was declared submitted for resolution. and the importance of complying with them (Inoturan,
Due to his delay of rendering the decision, he was v.Limsiaco, Jr., A.M. No. MTJ-01-1362, Feb. 22, 2011).
Violations of this section often involve a failure to keep Since the proper and efficient management of the
records or handle funds in compliance with court rules. court is the responsibility of the judge, he is the one
directly responsible for the proper discharge of official
Q: Judge Daguman was charged with neglect of duty functions. Thus, a judge is obliged to return to the
in failing to retain a copy and to register with the court the records of the cases filed in his sala upon his
Local Civil Registrar a marriage contract. In his retirement (Office of the Court Administrator v. Retired
comment, the judge explained that his failure to do Judge Carteciano, A.M. No. MTJ-07-1664, Feb. 18,
so was occasioned by circumstances beyond his 2008).
control. He averred that after the wedding ceremony,
the copies of the marriage contract were left on top
Sec. 3, Canon 6, NCJC
of his desk in his private office where the ceremony
Judges shall take reasonable steps to
was held but after few days, when he gathered all the
maintain and enhance their knowledge, skills
documents relating to the marriage, the copies were
and personal qualities necessary for the
already missing. He also explained that he was not
proper performance of judicial duties, taking
able to inform the parties about the fact of loss as
advantage for this purpose the training and
they were already out of the country. Should the
other facilities which should be made
judge be disciplined?
available, under judicial control, to judges.
A: Yes. A judge is charged with extra care in ensuring
that records of the cases and official documents in his
custody are intact. Moreover, judges must adopt a Service in the judiciary means a continuous study and
system of record management, and organize their research on the law from beginning to end. Judges are
dockets in order to bolster the prompt and efficient regarded as persons learned in the law. Ignorance of
dispatch of business. Here, the circumstances show the law excuses no one has special application to
that the loss of the documents was occasioned by the judges.
carelessness on the part of the judge. The judge should
not have left such important documents in his table to Though good faith and absence of malice or corruption
be gathered only after few days, instead, he should are sufficient defenses, such does not apply where the
have devised a filing system in his court so as to avoid issues are so simple and the applicable legal principles
such incident (Beso v.Daguman, A.M. No. MTJ-99- evident and basic as to be beyond possible margin of
1211, Jan. 28, 2000). error (Corpus v.Ochotoresa, A.M. No. RTJ 04-1861, July
30, 2004).
Q: X charged Judge Garillo with dishonesty and
corrupt practices for allegedly requiring the former to One who accepts the exalted position of a judge owes
deposit with the latter a sum of money in connection the public and the Court the duty to maintain
with a pending case in the latters sala but failed to professional competence at all times. When a judge
give the deposited sums of money to the adverse displays an utter lack of familiarity with the rules, he
party. It was also alleged that when X demanded the erodes the confidence of the public in the courts. A
return of money, the judge failed to return the same judge owes the public and the Court the duty to be
despite his promise. Is the judge guilty of serious proficient in the law and is expected to keep abreast
misconduct? of laws and prevailing jurisprudence. Ignorance of the
law by a judge can easily be the mainspring of injustice
A: Yes. A judge should always be a symbol of rectitude (Villanueva v.Judge Buaya, A.M. No. RTJ-08-2131, Nov.
and propriety, and should always comport himself in a 22, 2010).
manner that will raise no doubt whatsoever about his
honesty. Here, the judges act of misappropriating the
UNIVERSITY OF SANTO TOMAS
2014 GOLDEN NOTES
136
QUALITIES
Q: Judge Delos Santos averred that Judge Mangino of protest was already properly filed (Enojas v. Judge
the MTC Tarlac approved the bail bond for Gacott, Jr., A.M. No. RTJ-99-1513, Jan. 19, 2000).
provisional liberty of the accused Santos who was
arrested and whose criminal cases were pending in Sec. 4, Canon 6, NCJC
Angeles City. It was also made to appear from the Judges shall keep themselves informed
contents of the said bond that the accused appeared about relevant developments of
before notary public Ancanan in Makati City. international law, including international
According to the accused, she never went to Tarlac conventions and other instruments
and appeared before said Judge Mangino. She also establishing human rights norms.
alleged that she never went to Makati City and
appeared before Notary Public Ancanan. Is Judge
Mangino guilty of grave misconduct? Norms of international law has become the concern of
judges because they form part of legal standards by
A: Yes. Judges should be diligently acquainted with the which their competence and diligence required by the
law and jurisprudence. As an advocate of justice and a New Code of Judicial Conduct are to be measured.
visible representation of the law, a judge is expected
to keep abreast with and be proficient in the
application and interpretation of the law. Here, by Sec. 5, Canon 6, NCJC
mere glancing at the bail bond application, the judge Judges shall perform all judicial duties,
ought to know that he had absolutely no authority or including the delivery of reserved decisions,
jurisdiction to approve the bail bond of the accused as efficiently, fairly and with reasonable
the case was pending with another court. By approving promptness.
the bail bond application, the judge failed to exert such
conscientiousness, studiousness, and thoroughness A judge may be subject to an administrative fine for
expected and demanded of a judge (Judge de los inefficiency, neglect, and unreasonable delay in
Santos v. Judge Mangino,A.M. No. MTJ-03-1496, July elevating the records of a civil case to the Court of
10, 2003). Appeals. A delay of three years in the transmission of
court records to the appellate court, where a period of
Q: Judge Gacott Jr. dismissed an election case on the 30 days is required, is inexcusable (Pataleon v.
ground of non-payment of docket fees, although the Guidez,A.M. No. RTJ-00-1525, Jan. 25, 2000).
case had been previously admitted and was deemed
properly filed by the original Judge (who inhibited Q: The records disclose that on February 21, 1994,
himself due to relationship to one of the parties). Cabasares filed a Complaint for Malicious Mischief
Judge Gacott issued the dismissal order relying on a against a certain Rodolfo Hebaya. The case was
case (Manchester v.CA) which states that - a case is docketed as Criminal Case No. 8864 and subsequently
deemed commenced only upon the payment of the assigned to the branch of respondent Judge. As early
proper docket fees. To his opinion, the required fees as February 27, 2002, the case had been submitted
in this case were not yet paid by the protestant. for decision, but respondent judge did not pen a
Enojas charged him with gross ignorance of the law. decision. He was charged with violation of Section 15
Is Judge Gacott Jr. guilty of gross ignorance of the (1), Article VIII of the Constitution and Canon 3, Rule
law? 3.05 of the Code of Judicial Conduct. The judge
contend that it have escaped his mind.
A: Yes. A judge is duty bound to adhere to, and apply
the recent jurisprudence, and he cannot feign A: Judges should meticulously observe the periods
ignorance thereof, because he is required to be an prescribed by the Constitution for deciding cases
embodiment of, among other things, judicial because failure to comply with the said period
competence. Here, the ruling relied upon by the judge transgresses the parties constitutional right to speedy
does not apply to election cases as in the latter case disposition of their cases. Thus, failure to decide cases
the filing fee is fixed and the claim for damages, to within the ninety (90)-day reglementary period may
which the docket fess shall be made to apply, is merely warrant imposition of administrative sanctions on the
ancillary to the main cause of action and is not even erring judge. However, the Court is not unmindful of
determinative of the courts jurisdiction. It must also circumstances that justify the delay in the disposition
be noted that in this case, the original judge already of the cases assigned to judges. When a judge sees
made an order that from the deposit given by the such circumstances before the reglementary period
protestant for the expenses of reopening the ends, all that is needed is to simply ask the Court, with
questioned ballots, an amount shall be allocated for the appropriate justification, for an extension of time
the payment of the required fees. Thus, the election within which to decide the case. Evidently,
UNIVERSITY OF SANTO TOMAS
137 FACULTY OF CIVIL LAW
JUDICIAL ETHICS
respondent Judge failed to do any of these options. degree. For a judge to determine the fitness or
Since the judge retired from service he was only fined competence of a lawyer primarily on the basis of his
(Antonio Y. Cabasares v. Judge Filemon A. Tandinco, Jr. alma mater is clearly an engagement in an
Municipal Trial Court in Cities, 8th Judicial Region, argumentum ad hominem. As a judge, he must
Calbayog City, Western Samar, A.M. No. MTJ-11- address the merits of the case and not on the person
1793, Oct. 19, 2011). of the counsel. Judges must be that even on the face
of boorish behavior from those they deal with, they
Flag lawyer ought to conduct themselves in a manner befitting
gentlemen and high officers of the court (Atty. Mane v.
Refers to a lawyer of non-governmental organizations Judge Belen, A.M. No.RTJ-08-2119, June 30, 2008).
(NGOs) and peoples organizations (POs) who by the
nature of his work already render free legal aid to Q: Judge Ante Jr. was charged with conduct
indigent and pauper litigants. (BAR MATTER No. unbecoming of a judge. It was alleged that when the
2012,Feb. 10, 2009, Section 4a(iii)) court employee placed the docket book on top of the
filing cabinet, the same fell on the floor causing loud
sound. Unexpectedly, the judge shouted saying why
Sec. 6, Canon 6, NCJC did you throw the docket book? You get out of here,
Judges shall maintain order and decorum in punyeta, we dont need you! The judge also threw a
all proceedings before the court and be monobloc chair at the court employee. Should the
patient, dignified and courteous in relation to judge be disciplined?
litigants, witnesses, lawyers and others with
whom the judge deals in an official capacity. A: Yes. The judge, for shouting invectives and hitting
Judges shall require similar conduct of legal complainant with a chair displayed a predisposition to
representatives, court staff and others use physical violence and intemperate language which
subject to their influence, direction or reveals a marked lack of judicial temperament and
control. self-restraint - traits which, aside from the basic
equipment of learning in the law - are indispensable
Besides possessing the requisite learning in the law, a qualities of every judge (Briones v. Judge Ante Jr., A.M.
magistrate must exhibit that hallmark judicial No.MTJ-02-1411, Apr. 11, 2002).
temperament of utmost sobriety and self-restraint
which are indispensable qualities of every judge Sec. 7, Canon 6, NCJC
(Rodriguez v. Bonifacio, A.M. No. RTJ-99-1510, Nov. 6, Judges shall not engage in conduct
2000). incompatible with the diligent discharge of
judicial duties.
Q: Judge Belen was charged with conduct
unbecoming of a judge allegedly for humiliating,
demeaning and berating a young lawyer who Duty of the judge under this section
appeared in his sala. It was alleged that when the
judge learned that the lawyer was an alumnus of A judge shall not accept duties that will interfere with
MCQU and not of UP, the judge made the following his devotion to the expeditious and proper
statement youre not from UP. Then you cannot administration of his official functions
equate yourself to me because there is a saying and I
know this, not all law students are created equal, not NOTE: When a judge, along with two other people, acted as
all law schools are created equal, not all lawyers are real estate agents for the sale of a parcel of land for which
created equal despite what the Supreme Being stated he agreed to give a commission of P100,000 to each of his
that we all are created equal in His form and companions, and after the transaction was completed only
gave the complainants P25,000 each, the high Court held
substance. Should the judge be disciplined?
that the judge violated the section of the prior Code of
Judicial Conduct (Catbagan v. Barte, A.M. No. MTJ-02-1452,
A: Yes. The judges sarcastic, humiliating, threatening
Apr. 6, 2005).
and boastful remarks to a young lawyer are improper.
A judge must be aware that an alumnus of a particular
law school has no monopoly of knowledge of the law.
By hurdling the Bar Examinations, taking of the
Lawyers oath, and signing of the Roll of Attorneys, a
lawyer is presumed to be competent to discharge his
functions and duties as, inter alia, an officer of the
court, irrespective of where he obtained his law
UNIVERSITY OF SANTO TOMAS
2014 GOLDEN NOTES
138
DISCIPLINE OF MEMBERS OF THE JUDICIARY
Power to discipline members of the bench The object of impeachment is solely to determine
whether or not the official is worthy of the trust
The Supreme Court shall have the administrative conferred upon him/her. It is not determination of
supervision over all courts and the personnel (1987 criminal guilt or innocence as in criminal case (Ibid.).
Consitution, Section 6, Art. VIII).
The nature of impeachment proceedings against SC
The Court en banc has the power to discipline all justices is Sui Generis or a class of its own
judges of lower courts including justices of the Court
of Appeals (1987 Constiution, Section 11, Art. VIII). Grounds for impeachment
6. If YES, the matter will be referred to the Plenary ETHICAL LESSONS FROM THE FORMER CHIEF JUSTICE
within 60 days. CORONAS IMPEACHMENT
7. Plenary votes at least 1/3 vote is required
8. If at least 1/3 vote is attained, Resolution and Grounds for impeachment against former Chief
Articles of Impeachment are referred to Senate Justice Renato Corona
9. House elects its prosecutors
10. Senate as plenary body adopts its rules on 1. Betrayal of public trust through:
impeachment a. Track record marked by partiality and
11. Senate convenes as impeachment court subservience in cases involving the Arroyo
12. Senate issues summons to respondent administration from the time of his
13. Respondent appears and files answer appointment as Supreme Court justice and
14. Senate receives testimonial and documentary until his dubious appointment as a midnight
evidence chief justice to the present. (Article I)
15. Senator-judges interpose questions b. Wanton arbitrariness and partiality in
16. Submission for voting (Convict or Acquit) consistently disregarding the principle of res
judicata in the cases involving the 16 newly-
Fast track procedure for impeachment created cities, and the promotion of Dinagat
Island into a province. (Article V)
If an impeachment complaint or resolution is filed by c. Arrogating unto himself, and to a committee
at least one-third (1/3) of all members of the House, he created, the authority and jurisdiction to
the Articles of Impeachment shall be sent to Senate for improperly investigate a justice of the
trial. Supreme Court for the purpose of exculpating
him. Such authority and jurisdiction is properly
Determination for conviction or acquittal reposed by the Constitution in the House of
Representatives via impeachment. (Article VI)
Senators are expected to vote according to their d. Partiality in granting a temporary restraining
conscience. The standard of proof required is NOT order (TRO) in favor of former president Gloria
proof beyond reasonable doubt because it is not a Macapagal-Arroyo and her husband Jose
criminal trial. Rather, it is a political process Miguel Arroyo in order to give them an
(Impeachment Primer, Official Gazette, 2012). opportunity to escape prosecution and to
frustrate the ends of justice, and in distorting
Votes needed for conviction the supreme court decision on the effectivity
of the TRO in view of a clear failure to comply
A vote of at least two-thirds (2/3) of all members of the with the conditions of the Supreme Court own
Senate for any one article of impeachment. TRO. (Article VII)
e. Commission of graft and corruption when he
NOTE: 16 votes are required to convict on any article while 8 failed and refused to account for the judiciary
Negative votes can prevent conviction on any article. development fund (JDF) and special allowance
for the judiciary (SAJ) collections. (Article VIII)
Result of conviction 2. Culpable violation of the Constitution through:
a. Failure to disclose to the public his statement
Removal from office. The Senate can additionally of assets, liabilities, and net worth as
impose penalty of disqualification from holding any required under Sec. 17, Art. XI of the 1987
office in the Philippine government. Constitution (Article II)
b. Failure to meet and observe the stringent
However, the party convicted shall nevertheless be standards under Art. VIII, Section 7 (3) of the
subject to prosecution, trial, and punishment Constitution that provides that [a] member
according to law. Criminal liability must be established of the judiciary must be a person of proven
by criminal trial (Impeachment Primer, Official Gazette, competence, integrity, probity, and
2012). independence in allowing the Supreme court
to act on mere letters filed by a counsel
which caused the issuance of flip-flopping
decisions in final and executory cases; in
creating an excessive entanglement with
Mrs. Arroyo through her appointment of his
wife to office; and in discussing with litigants
regarding cases pending before the Supreme forces with general or flag rank, the declaration
Court. (Article III) shall be disclosed to the public in the manner
c. Blatant disregard of the principle of provided by law.
separation of powers by issuing a status quo
ante order against the House of 2. R.A. 6713 - Section 8. Statements and Disclosure.
Representatives in the case concerning the Public officials and employees have an obligation
impeachment of then Ombudsman to accomplish and submit declarations under oath
Merceditas Navarro-Gutierrez (Article IV). of, and the public has the right to know, their
assets, liabilities, net worth and financial and
Reason for CJ Coronas Impeachment business interests including those of their spouses
and of unmarried children under eighteen (18)
He was convicted under Article II of the Articles of years of age living in their households.
impeachment, which is the failure to disclose to the
public his statement of assets, liabilities, and net worth Statements of Assets and Liabilities and Financial
as required under sec. 17, Art. XI of the 1987 Disclosure. - All public officials and employees,
Constitution, by a vote of 20-3. except those who serve in an honorary capacity,
laborers and casual or temporary workers, shall
NOTE: It is the "obligation" of an employee to submit a file under oath their Statement of Assets,
sworn statement, as the "public has a right to know" the Liabilities and Net Worth and a Disclosure of
employee's assets, liabilities, net worth and financial and
Business Interests and Financial Connections and
business interests. Hence, a court interpreter who failed to
include in her SALN rental payments she received from a
those of their spouses and unmarried children
market stall was dismissed from service (Rabe v. Flores, A.M. under eighteen (18) years of age living in their
No. P-97-1247, May 14, 1997). The Senator judges ruled that households.
the law applies to all, including the Chief Justice of the The Statements of Assets, Liabilities and Net
Philippines, thus, his failure to include his dollar accounts in Worth and the Disclosure of Business Interests
his SALN warrants his impeachment from office. and Financial Connections shall be filed by:
xxx
Q: Is the Law on Secrecy of Foreign Currency Deposit (2) Senators and Congressmen, with the
Account (FCDA) a defense in failing to include a dollar Secretaries of the Senate and the House of
deposit in a SALN? Representatives, respectively; Justices, with the
Clerk of Court of the Supreme Court; Judges, with
A: No. The issue is not the conflict between the FCDA the Court Administrator; and all national
requiring secrecy of foreign currency deposits and the executive officials with the Office of the President.
disclosure required by the SALN law, but the
Constitution which requires public officials to declare Basis for the publics right to inquire upon the
their assets and does not distinguish between peso statement of assets and liabilities of public officers
and foreign accounts (Senator Judge Pangilinan).
The postulate of public office is a public trust,
The Supreme Court in one case said that the FCDA institutionalized in the Constitution to protect the
cannot be used as a haven for the corrupt and the people from abuse of governmental power, would
criminals. To interpret it in the manner that the Chief certainly be mere empty words if access to such
Justice would want is to say that the law could be information of public concern is denied.
used as a haven to hide proceeds of criminal acts
(Senator Judge Drilon). The right to information (Section 7, Article III of
Constitution) goes hand-in-hand with the
Mandate of the Chief Justice to disclose his statement constitutional policies of full public disclosure and
of assets and Lliabilities honesty in the public service. It is meant to enhance
the widening role of the citizenry in governmental
1. 1987 Constitution - Section 17. A public officer or decision-making as well as in checking abuse in
employee shall, upon assumption of office and as government (Valmonte v. Belmonte, Jr., 252 Phil. 264,
often thereafter as may be required by law, February 13 1989).
submit a declaration under oath of his assets,
liabilities, and net worth. In the case of the Established limitations to the right to information,
President, the Vice-President, the Members of the with its companion right of access to official records
Cabinet, the Congress, the Supreme Court, the
Constitutional Commissions and other 1. National security matters and intelligence
constitutional offices, and officers of the armed information
UNIVERSITY OF SANTO TOMAS
141 FACULTY OF CIVIL LAW
JUDICIAL ETHICS
2. Trade secrets and banking transactions The integrity of the Judiciary rests not only upon the
3. Criminal matters fact that it is able to administer justice, but also upon
4. Other confidential information such as the perception and confidence of the community that
confidential or classified information officially the people who run the system have administered
known to public officers and employees by reason justice. In order to create such confidence, the people
of their office and not made available to the public who run the judiciary, particularly judges and justices,
as well as diplomatic correspondence, closed door must not only be proficient in both the substantive and
Cabinet meetings and executive sessions of either procedural aspects of the law, but more importantly,
house of Congress, and the internal deliberations they must possess the highest integrity, probity, and
of the Supreme Court. unquestionable moral uprightness, both in their public
and in their private lives. Only then can the people be
Probity reassured that the wheels of justice in this country run
with fairness and equity, thus creating confidence in
It is the uncompromising adherence to the highest the judicial system (Tan vs. Pacuribot, A.M. No. RTJ-06-
principles and ideals or impeachable integrity 1982, December 14, 2007).
(Webster's 3rd New International Dictionary).
DISCIPLINE OF LOWER COURT JUDGES AND JUSTICES
Importance of probity as a quality of a magistrate OF THE COURT OF APPEALS AND SANDIGANBAYAN
Canons 3 and 4 of the new Code of Judicial Conduct The acts of a judge in his judicial capacity are not
mandate, respectively, that judges shall ensure that subject to disciplinary action. In the absence of fraud,
not only is their conduct above reproach, but that it is malice or dishonesty in rendering the assailed decision
perceived to be so in the view of the reasonable or order, the remedy of the aggrieved party is to
observer and that judges shall avoid improprieties elevate the assailed decision or order to the higher
and the appearance of impropriety in all of their court for review and correction. However, an inquiry
activities. These very stringent standards of decorum into a judges civil, criminal and/or administrative
are demanded of all magistrates and employees of the liability may be made after the available remedies
courts. As such, those who serve in the judiciary, have been exhausted and decided with finality
particularly justices and judges, must not only know (Republic v. Caguioa, A.M. No. RTJ-07-2063, June 26,
the law but must also possess the highest degree of 2009).
integrity and probity, and an unquestionable moral
uprightness both in their public and private lives Institution of proceedings for the discipline of judges
(Veloso vs. Caminade, A.M. No. RTJ- 01-1655, July 8,
2004). Proceedings for the discipline of judges of regular and
special courts and justices of the Court of Appeals and
Integrity the Sandiganbayan may be instituted:
1. Motu proprio by the Supreme Court;
It is a steadfast adherence to a strict moral or ethical 2. Upon a verified complaint filed before the
code. It is honesty and honorableness put into one. Supreme Court supported by:
Observance of integrity in the judiciary a. Affidavit of persons who have personal
knowledge of the facts alleged therein; or
In the Judiciary, moral integrity is more than a cardinal b. Documents which may substantiate said
virtue, it is a necessity. The exacting standards of allegations.
conduct demanded from judges are designed to 3. Anonymous complaint supported by public
promote public confidence in the integrity and records of indubitable integrity filed with the
impartiality of the judiciary. When the judge himself Supreme Court.
becomes the transgressor of the law which he is sworn
to apply, he places his office in disrepute, encourages Form and content of the complaint
disrespect for the law and impairs public confidence in
the integrity of the judiciary itself (Lachica vs The complaint shall be in writing and shall state clearly
Tormis, A.M. No. MTJ-05-1609, September 20, 2005). and concisely the acts and omissions constituting
violations of standards of conduct prescribed for
Importance of maintaining the confidence of the judges by law, the Rules of Court, or the Code of
people upon the judiciary Judicial Conduct.
A: Yes. It is already settled that when a judge grants A: Yes. A judge should be acquainted with legal norms
bail to a person charged with a capital offense, or an and precepts as well as with statutes and procedural
offense punishable by reclusion perpetua or life rules. Unfamiliarity with the Rules of Court is a sign of
imprisonment without conducting the required bail incompetence. He must have the basic rules at the
hearing, he is considered guilty of ignorance or palm of his hands as he is expected to maintain
incompetence the gravity of which cannot be excused professional competence at all times. Here, there are
by a claim of good faith or excusable negligence. When two defects in the Orders for Release signed by Judge
a judge displays an utter unfamiliarity with the law and Jovellanos. First, in both cases, the detainees had not
the rules, he erodes the confidence of the public in the registered the bailbond in accordance with the Rules
courts. A judge owes the public and the court the duty of Criminal Procedure. One may not be given
to be proficient in the law and is expected to keep provisional liberty if the bailbond is not registered with
abreast of laws and the prevailing jurisprudence. the proper office. Secondly, Judge Jovellanos did not
Ignorance of the law by a judge can easily be the have jurisdiction to order the release of the detainees
mainspring of injustice (Grageda v. Judge Tresvalles, as the cases were not pending in his court and the
A.M. MTJ No. 04-1526, Feb. 2, 2004). suspects were not arrested within his jurisdiction
(Santiago v. Judge Jovellanos, A.M. No. MTJ-00-1289,
Q: Respondent judge failed to cause the raffle of an Aug. 1, 2000).
injunction case and failed to follow the procedural
requirements in issuing a TRO and a writ of NOTE: Judges are not expected to be infallible; not every
preliminary injunction as he issued them without error or irregularity committed by judges in the performance
prior notice to the defendant and without a hearing. of official duties is subject to administrative sanction. In the
Is he liable for gross ignorance of the law? absence of bad faith, fraud, dishonesty, or deliberate intent
to do injustice, incorrect rulings do not constitute
misconduct and may give rise to a charge of gross ignorance
A: Yes. Though not every judicial error bespeaks of the law (Cruz v. Iturralde, A.M. No. MTJ-03-1775, Apr. 30,
ignorance of the law or of the rules, and that, when 2003).
committed in good faith, does not warrant
administrative sanction, the rule applies only in cases
Q: Cruz was the defendant in an ejectment case filed administrative charge of Gross Ignorance of the
by the Province of Bulacan involving a parcel of land law/Gross Incompetence was filed against
owned by the said province. A decision was rendered respondent Associate Enriquez. Is the filing of the
against Cruz. He then filed an appeal and several administrative complaint against him proper?
motions for reconsideration but Justice Alino-
Hormachuelos before whom the motions were filed A: No. The remedy of the aggrieved party is not to file
subsequently denied all. Consequently, Cruz charged an administrative complaint against the judge, but to
all the judges and justices with grave misconduct, elevate the assailed decision or order to the higher
gross inexcusable negligence, and rendering a void court for review and correction. An administrative
judgment. Should the judges be held liable for grave complaint is not an appropriate remedy where judicial
misconduct and gross ignorance of the law? recourse is still available, such as a motion for
reconsideration, an appeal, or a petition for certiorari,
A: No. The Court has consistently held that judges will unless the assailed order or decision is tainted with
not be held administratively liable for mere errors of fraud, malice, or dishonesty.
judgment in their rulings or decisions absent a showing
of malice or gross ignorance on their part. Bad faith or The failure to interpret the law or to properly
malice cannot be inferred simply because the appreciate the evidence presented does not
judgment is adverse to a party. To hold a judge necessarily render a judge administratively liable.
administratively accountable for every erroneous
ruling or decision he renders, assuming that he has A judicial officer cannot be called to account in a civil
erred, would be nothing short of harassment and action for acts done by him in the exercise of his
would make his position unbearable. Here, the fact judicial function, however erroneous. In the words of
that the judge or justices rendered a decision not Alzua and Arnalot v. Johnson, it is a general principle
favorable to Cruz is not enough to make them liable of the highest importance to the proper
for grave misconduct (Cruz v. Justice Alino- administration of justice that a judicial officer, in
Hormachuelos et. al., A.M. No. CA-04-38, Mar. 31, exercising the authority vested in him, shall be free to
2004). act upon his own convictions, without apprehension of
personal consequences to himself." This concept of
Disciplinary and criminal actions not a substitute for judicial immunity rests upon consideration of public
judicial remedy policy, its purpose being to preserve the integrity and
independence of the judiciary. This principle is of
Disciplinary and criminal actions against a judge, are universal application and applies to all grades of
not complementary or suppletory of, nor a substitute judicial officers from the highest judge of the nation
for, judicial remedies, whether ordinary or and to the lowest officer who sits as a court (Santiago
extraordinary. Resort to and exhaustion of judicial III v. Justice Enriquez, Jr. A.M. No. CA-09-47-J, Feb. 13,
remedies are prerequisites for the taking of other 2009).
measures against the persons of the judges concerned,
whether of civil, administrative, or criminal nature. It Classifications of administrative charges
is only after the available judicial remedies have been
exhausted and the appellate tribunals have spoken 1. Serious
with finality that the door to an inquiry into his 2. Less serious
criminal, civil, or administrative liability may be said to 3. Light
have opened, or closed (Maquiran v. Grageda, A.M.
No. RTJ-04-1888, Feb. 11, 2005). NOTE: Administrative penalties imposed on judges are both
punitive and corrective (2011 Bar Question).
Q: Santiagos Petition for Reconstitution of
Lost/Destroyed Original Certificate of Title was Serious charges
granted by the Quezon City RTC. The Republic of the
Philippines through the Office of the Solicitor General 1. Bribery, direct or indirect
appealed the decision to the Court of Appeals the 2. Dishonesty and violations of the Anti-Graft and
case of which was raffled to the Division where Corrupt Practices Law (R.A. 3019)
Justice Enriquez was Chairperson. The special division 3. Gross misconduct constituting violations of the
reversed and set aside the Decision of the Quezon Code of Judicial Conduct
City RTC. Motion for Reconsideration having been 4. Knowingly rendering an unjust judgment or order
denied, complainant filed the present complaint as determined by a competent court in an
before the SC. Pending the decision of the SC, an appropriate proceeding
5. Conviction of a crime involving moral turpitude
UNIVERSITY OF SANTO TOMAS
2014 GOLDEN NOTES
144
DISCIPLINE OF MEMBERS OF THE JUDICIARY
6. Willful failure to pay a just debt dreadful and dangerous implications (Pesole v. Rodriguez
7. Borrowing money or property from lawyers and A.M. No. 755-MTJ, Jan. 31, 1978).
litigants in a case pending before the court
8. Immorality Q: May the heirs of a judge who was found guilty of
9. Gross ignorance of the law or procedure gross neglect of duty and dismissed from the service
10. Partisan political activities with disqualification from holding public office for an
11. Alcoholism and/or vicious habits offense committed before he was appointed judge,
be entitled to gratuity benefits?
Less serious charges
A: Yes. Upon demise, the administrative complaint of
1. Undue delay in rendering a decision or order, or in the OCA had to be considered closed and terminated.
transmitting the records of a case Therefore, there is no valid reason why the heirs of the
2. Frequently and unjustified absences without deceased should not be entitled to gratuity benefits
leave or habitual tardiness for the period he rendered service as MTCC judge up
3. Unauthorized practice of law to the finality of the CSC Resolution which imposed the
4. Violation of Supreme Court rules, directives, and penalty of "dismissal from service with all the
circulars accessory penalties including disqualification from
5. Receiving additional or double compensation holding public office and forfeiture of benefits.
unless specifically authorized by law The penalty of disqualification from holding public
6. Untruthful statements in the certificate of service office and forfeiture of benefits may not be applied
7. Simple misconduct retroactively, however, the judge should be
considered terminated from service in the judiciary as
Light charges his appointment as MTCC judge is deemed conditional
upon his exoneration of the CSC administrative
1. Vulgar and unbecoming conduct charges against him (Re: Application for
2. Gambling in public retirement/gratuity benefits under R.A. 910 as
3. Fraternizing with lawyers and litigants with amended by R.A. 5095 and P.D. 1438 filed by Mrs.
pending case/cases in his court Butacan, surviving spouse of the late Hon. Jimmy
4. Undue delay in the submission of monthly reports Butacan, former judge of MTC, Tuguegarao City, who
died on July 28, 2005,A.M. No. 12535-Ret, Apr. 22,
Confidentiality of proceedings 2008).
judgment as to culpability of the respondent is rules on preventive suspension of judges, not having
necessary (In Re: Petition for dismissal of Judge Dizon). been expressly included in the Rules of Court, are
amorphous at best.
NOTE: The doctrine of res ipsa loquitur does not and cannot
dispense with the twin requirements of due process, notice Moreover, it is established that any administrative
and the opportunity to be heard. It merely dispenses with complaint leveled against a judge must always be
the procedure laid down in Rule 140, RRC (Rule 140:
examined with a discriminating eye, for its
Discipline of Judges of Regular and Special Courts and
consequential effects are, by their nature, highly penal,
Justices of the Court of Appeals and the Sandiganbayan).
such that the respondent judge stands to face the
Q: In Administrative Circular No. 1 addressed to all sanction of dismissal or disbarment. As
lower courts dated January 28, 1988, the Supreme aforementioned, the filing of criminal cases against
Court stressed that all judges are reminded that the judges may be used as tools to harass them and may
Supreme Court has applied the Res Ipsa Loquitor rule in the long run create adverse consequences (Re:
in the removal of judges even without any formal Conviction of Judge Adoracion G. Angeles, A.M. No. 06-
investigation whenever a decision, on its face, 9-545-RTC, Jan. 31, 2008).
indicates gross incompetence or gross ignorance of
the law or gross misconduct (Cathay Pacific Airways Grievance procedure in the rules of court is not
v. Romillo, G.R. No. 64276, 12 August 1986). The applicable to justices and judges
application of the res ipsa loquitor rule in the removal
of judges is assailed in various quarters as Complaints against justices and judges are filed with
inconsistent with due process and fair play. Is there the Supreme Court which has exclusive administrative
any basis for such a reaction? Explain. supervision over all courts and the personnel thereof
pursuant to Section 6 Art. VIII, Constitution. The Court
A: en banc has the power to discipline all judges of lower
1. First view - there is a basis for the reaction against courts including justices of the Court of Appeals (1987
the res ipsa loquitor rule on removing judges. Constitution, Section 11, Art. VII).
According to the position taken by the Philippine Bar
As a matter of practice, the Supreme Court has
Association, the res ipsa loquitor rule might violate the
assigned complaints against Municipal or
principle of due process that is the right to be heard
Metropolitan Trial Judges to an Executive Judge of a
before one is condemned.
Regional Trial Court and complaints against judges of
Moreover, Rule 140 of the Rules of Court provides for Regional Trial Courts to a justice of the Court of
the procedure for the removal of judges. Upon service Appeals, while a complaint against a member of the
of the complaint against him, he is entitled to file an Court of Appeals would probably be assigned to a
answer. If the answer merits a hearing, it is referred to member of the Supreme Court for investigation,
a justice of the Court of Appeals for investigation, the report and recommendation. Retired SC Justices are
report of the investigation is submitted to the now tasked for this purpose.
Supreme Court for proper disposition.
Rules on the liability of judges
The danger in applying the res ipsa loquitor rule is that
the judge may have committed only an error of GR: A judge is not liable administratively, civilly, or
judgment. His outright dismissal does violence to the criminally, when he acts within his legal powers and
jurisprudence set in (In Re Horilleno, 43 Phil. 212, jurisdiction, even though such acts are erroneous so
March 20, 1922). long as he acts in good faith. In such a case, the remedy
of aggrieved party is not to file an administrative
2. Second view- According to the Supreme Court the complaint against the judge but to elevate the error to
lawyer or a judge can be suspended or dismissed a higher court for review and correction.
based on his activities or decision, as long as he has
NOTE: The reason behind such rule is to free the judge from
been given an opportunity to explain his side. No
apprehension of personal consequences to himself and to
investigation is necessary. preserve the integrity and independence of the judiciary.
Suspension pendente lite not applicable to judges
XPN: Where an error is gross or patent, deliberate and
malicious, or is incurred with evident bad faith; or
While it is true that preventive suspension pendente
when there is fraud, dishonesty, or corruption.
lite does not violate the right of the accused to be
presumed innocent as the same is not a penalty, the
Civil liabilities under the New Civil Code
UNIVERSITY OF SANTO TOMAS
2014 GOLDEN NOTES
146
DISCIPLINE OF MEMBERS OF THE JUDICIARY
ground of knowingly rendering an unjust judgment
1. Article 27 refusal or neglect without just cause (Abad v. Bleza, A.M. No. R-227-RTJ, October 13,
by a public servant to perform his official duty 1986).
2. Article 32 directly or indirectly obstructing,
defeating, violating or in any manner impeding or 2. Article 205 Judgment rendered through
impairing civil liberties guaranteed by the negligence committed by reason of inexcusable
Constitution negligence or ignorance.
NOTE: It must be shown beyond doubt that the Its purpose is to protect the people from official
judgment is unjust as it is contrary to law or is not delinquencies or malfeasances. It is therefore
supported by evidence and the same was made primarily intended for the protection of the State, not
with conscious and deliberate intent to do an for the punishment of the offender.
injustice (In Re: Climaco, A.C. No. 134-J, January 21,
1974).
Importance of maintaining public trust in public
If the decision rendered by the judge is still on offices
appeal, the judge cannot be disqualified on the
REINSTATEMENT OF A JUDGE
PREVIOUSLY DISCIPLINED
Propriety of reinstatement
Office of the Court Administrator for The investigating justice or judge shall
evaluation, report, and set a day of the HEARING and send
recommendation notice thereof to both parties. At such
hearing the parties may present oral
Or assign the case for investigation,
and documentary evidence.
report, and recommendation to a
retired member of the Supreme Court,
If, after due notice, the respondent
if the respondent is a justice of the CA
fails to appear, the investigation shall
and the Sandiganbayan
proceed ex parte.
Or to a justice of the CA, if the
The investigating justice or judge shall
respondent is a judge of a Regional Trial
terminate the investigation within
Court or of a special court of equivalent
ninety (90) days from the date of its
rank
commencement or within such
Or to a judge of the Regional Trial Court extension as the Supreme Court may
if the respondent is a judge of an grant.
inferior court.
NOTE: Before the Court approved this resolution, administrative and disbarment cases against members of the bar who were
likewise members of the court were treated separately. However, pursuant to the new rule, an administrative case against a
judge of a regular court based on grounds which are also grounds for the disciplinary action against members of the Bar shall be
automatically considered as disciplinary proceedings against such judge as a member of the Bar.
Since membership in the bar is an integral qualification for membership in the bench, the moral fitness of a judge also reflects his
moral fitness as a lawyer. A judge who disobeys the basic rules of judicial conduct also violates his oath as a lawyer (Samson v.
Judge Caballero, A.M. No. RTJ-08-2138, Aug. 5, 2009)
COMPULSORY
Rationale
The same rule also provides that the judge may hear
and decide the case despite the presence of a
disqualification provided the interested parties both
give a written consent, signed by them and entered
upon the record. It has been decided by the Supreme
Court that oral consent is not valid, even though both
parties have agreed (Lazo v. Judge Tiong, 300 SCRA 173,
1998).
VOLUNTARY
POWERS AND DUTIES OF COURTS AND JUDICIAL of any interested person, at all proper business hours,
OFFICERS (RULE 135) under the supervision of the clerk having custody of
such records.
When pleading/motion for trial of cases/ other pleadings
may be filed XPN: Unless the court shall, in any special case,
have forbidden their publicity, in the interest
Section 1, Rule 135 of Rules of Court provides: Courts of morality or decency.
always open; justice to be promptly and impartially
administered. Courts of justice shall always be open, Enforceability of the processes in inferior courts
except on legal holidays, for the filing of any pleading,
motion or other papers, for the trial of cases, hearing GR: Within the province where the municipality or city lies.
of motions, and for the issuance of orders or rendition of
judgments. Justice shall be impartially administered XPN: Outside its boundary, provided it is with the approval
without unnecessary delay. of judge of first instance of said province.
GR: Courts of justice shall always be open; Justice to Criminal processes served outside judges jurisdiction is
be promptly and impartially administered. allowed
XPN: Legal holidays When the district judge, or in his absence the provincial
fiscal, shall certify that in his opinion the interests of justice
NOTE: Upon the request of the local government unit concerned, require such service.
the Executive Judges of the MeTCs or the MTCCs of the cities and
municipalities comprising Metro Manila and of the cities of Baguio, Section 4 of Rule 135 of Rules of Court provides: Process of
Bacolod, Cagayan de Oro, Cebu, Davao and Iloilo may assign all inferior courts The process of inferior courts shall be
judges to hold night court sessions daily from Monday to Friday enforceable within the province where the municipality or
and on official holidays and special days, from four-thirty oclock city lies. It shall not be served outside the boundaries of the
in the afternoon to eleven oclock in the evening, on rotation basis,
province in which they are comprised except with the
and in pairs of two (Sec. 15, A.M. No. 03-8-02-SC).
approval of the judge of first instance of said province, and
Exclusion of the public from the proceedings only in the following cases:
a. When an order for the delivery of personal property
Section 2, Rule 135 of Rules of Court provides: Publicity of lying outside the province is to be complied with;
proceedings and records-- The sitting of every court of b. When an attachment of real or personal property lying
justice shall be public, but any court may, in its discretion, outside the province is to be made;
exclude the public when the evidence to be adduced is of c. When the action is against two or more defendants
such nature as to require their exclusion in the interest of residing in different provinces;
morality or decency. xxx d. When the place where the case has been brought is
that specified in a contract in writing between the
GR: The sitting of every court of justice shall be parties, or is the place of the execution of such
public contract as appears therefrom.
Cases where the judge of the first instance of a particular auxiliary writs, processes and other means necessary to
province can approve the service of process of inferior carry it into effect may be employed by such court or
courts outside the boundaries of province in which they officer; and if the procedure to be followed in the exercise
are comprised of such jurisdiction is not specifically pointed out by law or
by these rules, any suitable process or mode of proceeding
1. When an order for the delivery of personal property may be adopted which appears conformable to the spirit of
lying outside the province is to be complied with; said law or rules.
2. When an attachment of real or personal property lying
outside the province is to be made; Instances where the hearings may be had at any place in
3. When the action is against two or more defendants the judicial district which the judge shall deem convenient
residing in different provinces;
4. When the place where the case has been brought is 1. On the filing of a petition for the writ of habeas corpus
that specified in a contract in writing between the 2. For release upon bail or reduction of bail in any Court
parties, or is the place of the execution of such of First Instance (Section 8, Rule 135 of Rules of Court)
contract as appears therefrom .
Inherent powers of the courts Supreme Court can authorize the judge to continue
hearing and to decide said case notwithstanding his
Section 5, Rule 135 of Rules of Court provides: transfer or appointment to another court of equal
jurisdiction
Inherent powers of courts-- Every court shall have power:
a. To preserve and enforce order in its immediate 1. If a case has been heard only in part.
presence; 2. If no other judge had heard the case in part.
b. To enforce order in proceedings before it, or
before a person or persons empowered to Section 9, Rule 135 of Rules of Court provides:
conduct a judicial investigation under its
authority; Signing judgments out of province.If a case has been
c. To compel obedience to its judgments, orders and heard only in part, the Supreme Court, upon petition of any
processes, and to the lawful orders of a judge out of the parties to the case and the recommendation of the
of court, in a case pending therein; respective district judge, may
d. To control, in furtherance of justice, the conduct
of its ministerial officers, and of all other persons
in any manner connected with a case before it, in
every manner appertaining thereto;
e. To compel the attendance of persons to testify in
a case pending therein;
f. To administer or cause to be administered oaths
in a case pending therein, and in all other cases
where it may be necessary in the exercise of its
powers;
g. to amend and control its process and orders so as
to make them comfortable to law and justice;
h. To authorize a copy of a lost or destroyed pleading
or other paper to be filed and used instead of the
original, and to restore, and supply deficiencies in
its records and proceedings.
NOTE: The persons herein authorized to collect legal fees The value of the subject matter involved, or the
shall be accountable officers and shall be required to post amount of the demand, inclusive of
bond in such amount as prescribed by the law. interests, PENALTIES, SURCHARGES, damages of
whatever kind, attorneys fees, litigation expenses and
Basis of the amount of fee in filing an action or costs.
proceeding with the Court of Tax Appeals
Basis for determining amount of fees in real actions
1. In an action or proceeding, including petition for
intervention, and for all services in the same The FAIR MARKET value of the property:
amount of fee would be based on the: 1. Stated in the current tax declaration or
2. Current zonal valuation of the bureau of internal Persons exempt from payment of legal fees
revenue, whichever is higher, or,
1. Indigent litigants
If not declared for taxation purposes, the estimated 2. Republic of the Philippines
value thereof shall be alleged by the claimant and shall
be the basis in computing the fees. NOTE: The clients of PAO shall be exempt from payment of
docket and other fees incidental to instituting an action in
Exemptions to fees to real actions court and other quasi-judicial bodies, as an original
proceeding or on appeal. (R.A. No. 9406, Section 6)
In forcible entry and unlawful detainer, the amount
of fees would depend on whether damages or costs Rule with regard to indigent litigants
are prayed for.
Indigent litigants are exempt from payment of legal
Witnesses are entitled to fees fees. However, the legal fees shall be a lien on any
judgment rendered in the case favorable to the
Witnesses in the Supreme Court, in the Court of indigent litigant unless the court otherwise provides.
Appeals and in the Regional Trial Courts and in the
1st level courts, either in actions or special Requisites for the indigents to be able to enjoy
proceedings, shall be entitled to P200.00 per day, exemption
inclusive of ALL EXPENSES;
He must execute an affidavit that he and his
Fees to which witnesses may be entitled in a civil immediate family do not earn a gross income
action shall be allowed on the certification of the clerk abovementioned, and they do not own any real
of court or judge of his appearance in the case. property with the fair value aforementioned,
supported by an affidavit of a disinterested person
Limitations attesting to the truth of the litigants affidavit. The
current tax declaration, if any, shall be attached to the
1. A witness shall not be allowed compensation for litigants affidavit.
his attendance in more than one case or more
than one side of the same case at the same time, Any falsity in the affidavit of litigant or disinterested
but may elect in which of several cases or on person shall be sufficient cause to dismiss the
which side of a case, when he is summoned by complaint or action or to strike out the pleading of that
both sides, to claim his attendance. party, without prejudice to whatever criminal liability
2. A person who is compelled to attend court on may have been incurred. (Sec. 19)
other business shall not be paid as a witness.
Rule as to Republic of the Philippines
Sheriffs expense is NOT the same as Sheriffs fees
The Republic of the Philippines, its agencies and
Sheriffs expenses are not exacted for any service instrumentalities are exempt from paying the legal
rendered by the court; they are the amount deposited fees provided in the rule.
to the Clerk of Court upon filing of the complaint to
defray the actual travel expenses of the sheriff, Exemption to the rule that the Republic is exempt
process server or other court-authorized persons in from paying legal fees
the service of summons, subpoena and other court
processes that would be issued relative to the trial of Local governments and government-owned or
the case. . It is not the same as sheriffs fees under controlled corporations with or without independent
Section 10, Rule 141 of the Rules of Court, which refers charters are not exempt from paying such fees.
to those imposed by the court for services rendered to
a party incident to the proceedings before it (Re: Letter However, all court actions, criminal or civil, instituted
dated April 18, 2011 of Chief Public Attorney Persida Rueda- at the instance of the provincial, city or municipal
Acosta Requesting Exemption From the Payment Of Sheriffs treasurer or assessor under Sec. 280 of the Local
Expenses, A.M. No. 11-10-03-0, July 30, 2013). Government Code of 1991 shall be exempt from the
payment of court and sheriffs fees.
2. Accused-appellant
FRIVOLOUS APPEAL
Websites:
www.lawphil.net
www.chanrobles.com
www.sc.gov.ph