260302218-Legal-Ethics-Agpalo-Chapters-8-19.pdf
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Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
CHAPTER VIII LAWYER’S FIDUCIARY OBLIGATIONS A. EFFECTS OF FIDUCIARY RELATION GENERALLY: -‐ Atty. – client relationship is highly fiduciary and strictly confidential requiring utmost good faith, loyalty, fidelity and disinterestedness on the part of the atty for the protection of the client -‐ principles of justice and expediency require that the atty must not derive any advantage from such act when done by him as may operate to the prejudice of his client and that ALL advantages arising there from must inure to the client’s benefit DEALINGS SUBJECT TO SCRUTINY -‐ fiduciary relation exists as a matter of law which requires all dealings to be subject to the closest judicial scrutiny -‐ court’s duty to guard and protect clients from any undue consequences -‐ measure of good faith required from atty is much higher compared to what is required in business dealings -‐ no presumption of innocence or improbability of wrong doing is considered in atty’s favour -‐ dealings must be characterized with utmost honesty and good faith -‐ it is upon the lawyer to prove that the transaction was FAIR ABUSE OF CONFIDENCE “A lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client.” -‐ a lawyer may not retain money of client to force settlement of a disputed claim -‐ cannot obtain money thru false pretense or misrepresentation
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
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Undue influence in the preparation of the will shown by persuasive circumstances such as preferential treatment and inclusion of a bequest more than a token or modest amount
REBATES AND COMMISSIONS “A lawyer shall not without the full knowledge and consent of the client, accept any fee, reward, costs commission interest, rebate or forwarding allowance or other compensation whatsoever related to his professional employment from anyone other than the client. “ -‐ to secure the wholehearted fidelity to the client’s cause and prevent him from full discharge of duty to his client -‐ Whatever a lawyer receives from the opposite party in the service of his client belongs to the client, in the absence of the client’s consent made after the full disclosure of the facts A LAWYER SHALL NOT BORROW MONEY FROM THE CLIENT “…unless the client’s interests are fully protected by the nature of the case or by independent advice…” (borrowing allowed if under this exception but should not abuse by delaying payment) AND LEND MONEY TO HIM “…except, when in the interest of justice he has to advance necessary expenses in a legal matter he is handling for the client.” -‐ intended to assure the lawyer’s independent professional judgment for if there is financial interest the free exercise of his judgment may be affected -‐ violation of oath of good fidelity to client and make lawyering a money making venture B.ACCOUNTING OF CLIENT’S FUNDS
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
Canon 16: “a lawyer shall hold in trust all moneys and properties of his client that may come into his possession.” Rule 16.01 “a lawyer shall account for all the money or property collected or received for or from the client.” -‐ a lawyer may receive money for or from the client in the course of his employment which he holds in trust and under the obligation to make an accounting thereof. Such money may include: 1. money collected in pursuance of a judgment in favour of his client 2. money of client not used for the purpose for which it was entrusted 3. any property redeemed with the client’s money and registered in the lawyer’s name 4. any fund received from a judgment creditior as consideration to desist from participating in a public sale -‐ if there is failure to accomplish a specific purpose for which money given by the client was to paid, the atty must return such money immediately to the client -‐ “..failure to return such money upon demand give rise to the presumption that he misappropriated it for his own use and to the prejudice of and in violation of the trust reposed in him by his client. It is a gross violation of general morality, professional ethics and impairs public confidence in the legal profession.” (Celaje v. Soriano) -‐ also applies even without atty-‐client relationship -‐ may retain part of money if authorized by the client A LAWYER SHALL NOT COMMINGLE CLIENT’S FUNDS
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
“A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him.” -‐ not commingle money of client with that of other clients and with his private funds, nor use the client’s money for personal purposed without the client’s consent -‐ promptly report money of his client coming to his possession A LAWYER SHALL DELIVER FUNDS TO CLIENT, SUBJECT TO HIS LIEN Rule 16.03: “A lawyer shall deliver the funds and property of his client when due or upon demand. However he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client.” -‐ assumes that the client agrees with the lawyer as to the amount of atty’s fees and the application of the client’s funds to pay such fees -‐ without the consent, lawyer cannot apply the money for his fees, but should instead return money to the client without prejudice to filing a case for the recovery of his fees C. RESTRICTION AGAINST BUYING CLIENT’S PROPERTY PURCHASE OF PROPERTY IN LITIGATION -‐ prohibits lawyer from purchasing even at auctions, either in person or through the mediation of another, any property or interest involved in any litigation in which he may take part by virtue of his profession -‐ rests on public policy and interests -‐ such prohibition is ABSOLUTE AND PERMANENT -‐ moral obligation of the atty to refrain from placing himself in a position which excites conflict between self interest and integrity
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
ELEMENTS: a. atty-‐client relationship exists b. property or interest of client in litigation c. atty takes part as counsel in such case d. atty by himself or through another purchases such property or interest during pendency of litigation Applies even when: -‐ purchase or lease in favour of a partnership of which the counsel is a partner -‐ purchase by atty’s wife of an interest belonging to estate of the decedent -‐ acquisition of guardian’s lawyer of the ward’s property -‐ property in litigation deeded in favour of atty for payment of fees and the value of such is greatly more than the worth of the atty’s services -‐ transfer of right over a parcel of land in a pending litigation as atty’s fees (malpractice) Not applicable in the ff: -‐ property not in litigation -‐ sale took place prior to litigation -‐ purchaser was a corporation even though the atty was an officer thereof -‐ sale after termination of the litigation -‐ atty bidding on behalf of his client at the auction of client’s property -‐ contingent fee contract unless unreasonable PURCHASE IN VIOLATION OF THIS RULE IS NULL AND VOID AB INITIO -‐ It is definite, permanent and cannot be ratified. PURCHASE OF CHOSES IN ACTION -‐ prohibition applies -‐ if allowed, lawyer becomes a voluntary litigant for profit which is improper conduct
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
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also improper to buy judgment noted or other choses for much less their face value with intent to collect them at large profit Exception: -‐ if acquired not in his professional capacity but as a LEGITIMATE INVESTMENT
CHAPTER IX LAWYER’S DUTY TO PRESERVE CLIENT’S CONFIDENCE A. PRESERVATION OF CLIENT’S CONFIDENCE Canon 21: “a lawyer shall preserve the confidence and secrets of his client even after the atty-‐client relationship is terminated.” -‐ applicable to matters disclosed by prospective clients Rule 21.01 -‐ A lawyer shall not reveal the confidences or secrets of his client except; (a) When authorized by the client after acquainting him of the consequences of the disclosure; (b) When required by law; (c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action. Rule 21.02 -‐ A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto. Rule 21.03 -‐ A lawyer shall not, without the written consent of his client, give information from his files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or any similar purpose. Rule 21.04 -‐ A lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client. Rule 21.05 -‐ A lawyer shall adopt such measures as may be required to prevent those whose
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19 services are utilized by him, from disclosing or using confidences or secrets of the clients. Rule 21.06 -‐ A lawyer shall avoid indiscreet conversation about a client's affairs even with members of his family. Rule 21.07 -‐ A lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest.
DURATION OF DUTY -‐ perpetual, continues even after client’s death -‐ he may not do anything which will injuriously affect his former client -‐ nor at any time disclose or use against him any knowledge or information acquired by virtue of the professional relationship -‐ some privileged communication may lose privileged nature by some supervening act done pursuant to the purpose of the communication REASON FOR THE RULE -‐ encourage full disclosure of facts to atty. and place unrestricted confidence in him in matters affecting his rights and obligations -‐ preserve the confidential and trust relation between atty and client A LAWYER SHALL NOT USE CLIENT’S SECRETS WITHOUT HIS CONSENT ” A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto.”
A LAWYER SHALL NOT GIVE INFORMATION FROM HIS FILES “ A lawyer shall not, without the written consent of his client, give information from his files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or any similar purpose.”
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
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work product of lawyer such as his effort, research and thought and the records of his client are Privileged matters neither the lawyer, his heir or legal representatives disclose the contents of such files without client’s permission
A LAWYER MAY DISCLOSE AFFAIRS OF CLIENT TO PARTNERS -‐ employment of a law firm is equivalent to retainer of the members thereof -‐ employment of one member of a law firm is considered as employment of the law firm -‐ partners and associates are not considered third persons because they are considered as one person A LAWYER SHALL ADOPT MEASURES AGAINST DISCLOSURES OF CLIENT’S SECRETS “A lawyer shall adopt such measures as may be required to prevent those whose services are utilized by him, from disclosing or using confidences or secrets of the clients.”
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employment of secretaries, stenographers, messengers, clerks etc is allowed and client’s secrets learned by these persons In the performance of their services to the lawyer or his client are privileged communications
A LAWYER SHALL AVOID INDISCREET CONVERSATION ABOUT CLIENT’S AFFAIRS “…even with members of his family.” -‐ may result in prejudice to client and lessen respect due to the legal profession -‐ A LAWYER SHALL NOT REVEAL HIS HAVING CONSULTED
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
“ A lawyer shall not reveal that he has been
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
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consulted about a particular case except to avoid possible conflict of interest.”
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applies to matters disclosed by prospective client because the disclosure creates atty-‐client relationship even though the atty does not eventually accept the employment lawyer should ascertain as soon as practicable whether there is conflict of interest and inform the prospective client that he cannot accept employment on such ground
B. SCOPE OF ATTY-‐ CLIENT PRIVILEGE REQUISITES (Mercado v. Vitriolo) Evidentiary privilege (all must concur): 1. legal advice of any kind is sought 2. from a professional legal adviser in his capacity as such 3. the communications relating to such purpose 4. made in confidence 5. by the client 6.are at his instance permanently protected 7. from disclosure by himself or by the atty 8. except if the protection is waived -‐ the person from whom legal advice is sought must be an atty. -‐ applies if person poses as a lawyer for some ulterior purpose and client confides in him -‐ communication of client for purpose other than on account of the atty-‐ client relation is NOT privileged -‐ communication must be for a lawful purpose or lawful end -‐ client who asserts the existence of atty-‐client relation has burden of proving such fact CONFIDENTIALITY
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mere relation of atty and client does not raise presumption of confidentiality the client must intend the communication to be confidential and for the purpiose of seeking legal advice Confidential information-‐ transmitted by voluntary act of disclosure between atty and client in confidence and by means which so far as the client is aware, discloses the information to no third person other than one reasonably necessary to accomplish the purpose for which it was given. a third person who overheard privilege communication, privilege rule does not apply
FORM OR MODE OF COMMUNICATION -‐oral, written, actions, signs and other means of communication intended to be confidential by the client -‐no particular mode required for the privilege rule to attach PERSONS ENTITLED TO CLAIM PRIVILEGE -‐ generally extends to the atty, his client as well as to the atty’s secretary, stenographer, or clerk. -‐ interpreter or messenger transmitting the communication -‐ experts such as accountant, physician etc hired either by client or atty for consultation -‐ for protection of client -‐ may be asserted by client’s assignee, heir or legal representative APPLICATION OF RULE -‐ lawyer may be compelled to disclose unprivileged communication but he cannot volunteer such information for his own benefit to the prejudice of his client
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
A LAWYER SHALL NOT REVEAL CLIENT’S CONFIDENCE “A lawyer shall not reveal the confidences or secrets of his client except; (a) When authorized by the client after acquainting him of the consequences of the disclosure; (b) When required by law; (c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action.” -‐ lawyer may not disclose client’s funds to creditor to enable attachment of such funds -‐ lawyer cannot reveal the commission of a matrimonial offence committed by client contemplating the filing for legal separation -‐ lawyer who acquires knowledge of past wrongful acts of a corporate client may disclose them to the directors but not to others -‐ when lawyer discovers fraud committed by client, endeavour to rectify it by advising client and informing person injured -‐ breach of duty by lawyer (art 209 of RPC) o prision correccional or a fine 200-‐1000 pesos
C. EXCEPTIONS TO THE RULE ON PRIVILEGE A lawyer shall not reveal the confidences or secrets of his client except; (a) When authorized by the client after acquainting him of the consequences of the disclosure; (b) When required by law; (c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action. -‐ in addition to these, when it refers to the commission of a contemplated crime or perpetuation of fraud CLIENT’S WAIVER OF THE PRIVILEGE -‐ only client can waive except: > when the person to be examined the
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
atty’s secretary, stenographer or clerk, the consent of the atty is also necessary -‐ client may waive personally -‐ or through counsel except: > controversy involves atty-‐client relation as in cases of breach of confidence -‐ client waives privilege by filing a complaint against his atty or by refusing to pay atty’s fees -‐ waives cannot be made partially -‐ partial waiver is equivalent to a waiver in whole DISCLOSURE TO PROTECT ATTY’S RIGHTS -‐ privilege cannot be used as shield for wrongdoing nor can it be employed to deny a lawyer the right to protect himself against abuse by the client or false charges by third persons -‐ if atty is accused of misconduct by his client, he may disclose the truth necessary only to protect his rights -‐ avoid any disclosure not necessary to protect his rights *read People v Sandiganbayan p. 291 (275 SCRA 505)
CHAPTER X Lawyer’s Duties of Fair Dealings and Avoiding Conflict of Interests A. FAIRNESS IN DEALING WITH CLIENT Duty to be candid, fair and loyal in all dealings with client, generally • Canon 15 – lawyer shall observe candor, fairness and loyalty in all dealings with client. • Generally, the relation of attorney and client is strictly personal and highly confidential and fiduciary. • Highly Confidential o Trust o Confidence
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
Fiduciary o Absolute Integrity o Undivided Allegiance A lawyer shall ascertain possible conflict of interests • Rule 15.01 – A lawyer, in conferring with a prospective client shall ascertain as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so shall forthwith inform the prospective client. • The disclosure is more for the protection of the lawyer than that of the client. • Concealment of facts material to the employment may cause his client to lose confidence in him and may even affect hi fee. • A client may presume from an attorney’s failure to disclose matters material to his employment that the attorney has no interest which will interfere with his devotion to the cause confided to him. Duty to decline employment • A lawyer should decline professional employment even though how attractive the fee offered may be if its acceptance will involve violation of any of the rules of legal profession. • Lawyer should not accept employment as an advocate in any matter in which he had intervened while in the government service. • Reason: Necessity that professional integrity and public confidence in that integrity be maintained. • Lawyer should not accept employment the nature of which might easily be used as a means of advertising his professional service or his skills. • While there is no statutory restriction for a lawyer to be an advocate and a •
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
witness for a client in a case, the canons of the profession forbid him from acting in that double capacity as he will find it difficult to disassociate his relation to the client as a lawyer and his relation to the litigant as a witness. • GR: A lawyer shall not refuse his services to the needy. Exceptions: Ø He is not in a position to carry it out effectively or competently Ø He labors under a conflict of interest between him and prospective client or between a present one and the prospective. A lawyer shall preserve the secrets of a prospective client (even if such client does not retain the lawyer or latter declines employment) Rule 15.02 Lawyer is bound by the rule on privileged communication in respect of matters disclosed to him by a prospective client. Reason: To make the prospective client free to discuss whatever he wishes with the lawyer without fear that what he tells the lawyer will not be divulged nor used against him, and for the lawyer to be equally free to obtain information from the prospective client. A lawyer may act as mediator Rule 15.04 A lawyer, with written consent of all concerned, may act as a mediator, conciliator or arbitrator in settling disputes. • However, a lawyer shall not act as counsel for any of them, otherwise the rule prohibiting representation of conflicting interests will apply. B. REPRESENTING CONFLICTING INTERESTS A lawyer shall not represent conflicting interest Rule 15.03 A lawyer shall not represent conflicting interest except by written consent of all concerned given after full disclosure of the facts.
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
The rule covers not only cases in which confidential communications have been confided but also those in which no confidence has been bestowed or will be used. • Test of inconsistency of interest : Whether the acceptance of a new client will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness and whether the acceptance of the new relation will require the attorney to do anything which will injuriously affect his first client in any matter in which he represents. Reason for the prohibition: Relationship of a lawyer and a client is one of trust and confidence of the highest degree. Effect of termination of relation • The termination of the relation provides no justification for a lawyer to represent an interest adverse to or in conflict with the former client. Reason: Clients confidence once reposed cannot be divested by the expiration of the professional employment. Materiality of confidential information • The bare attorney-‐client relationship with a client precludes a lawyer from accepting professional employment from the clients adversary in the same case or difference case but related action. Foundation of, & reason for, the rule • The stern rule against representation of conflicting interests is founded on principles of Public Policy & Good Taste. Opposing clients in same or related suits •
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
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It is improper for a lawyer to appear as counsel for one party against the adverse party who is his client in a related suit, as a lawyer is prohibited from representing conflicting interest. Even though the opposing clients, after full disclosure of facts, consent to the lawyer’s dual representation, the lawyer when his clients cannot see their way clear to settling their controversy amicably, retire from the case.
Opposing clients in unrelated suits • A lawyer cannot appear as counsel for one party against the adverse party who is his client in another totally unrelated action. • The lawyer in that situation will not be able to pursue with vigor and zeal the client claims against the other to properly represent the latter in the unrelated action; or if he can do so it would invite suspicion. New client against former client • A lawyer is forbidden from representing a subsequent client against a former client only when the subject matter of the preset case is related, directly or indirectly, to the subject matter of the previous litigation in which he appeared for the former client. Conflicting duties • A lawyer may not undertake to discharge conflicting duties any more than may he represent antagonistic interests. Attorneys interest versus client’s interest • A lawyer should not put himself in a position where self-‐interest tempts him to do less than his best for his client.
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
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For this reason, it is improper for a lawyer to continue representing a client in a suit against a party even with the clients consent after a lawyer brings a suit in his own behalf against the same defendant if it is uncertain whether such defendant will be able to satisfy both the judgments.
Rule applicable to Law Firms • Where a lawyer is disqualified or forbidden from appearing as counsel in a case because of conflicting of interests, the law firm of which he is a member as well as any member, associate, or assistant therein is similarly disqualified from so acting. • It is corollary to the rule that the employment of one member of a law firm is considered as an employment of the law firm and that the employment of a law firm is equivalent to the retainer of the members thereof. • A lawyer may not, therefore, represent a client whose interest are adverse to those of the employer of a member of the firm. Limitation on General Rule • GR: Lawyer may not represent conflicting interests. • Limitations: o No conflict of interest exists o Client knowingly consents to the dual representation o No true attorney-‐client relationship is attendant Where no conflicting interest exists • A lawyer may properly represent a subsequent client against a former client in a matter which is not, in any way, related to the previous controversy in which he appeared for the former client.
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
Where client knowingly consent • Generally, a lawyer may at a certain stage of the controversy and before it reaches the court represent conflicting interest with the express written consent of all parties concerned given after full disclosure of the facts. • This rule is only applicable when one client is a former client and not when both clients are current/present clients in the case, where each asserts an interest adverse to that of the other. • In this situation the lawyer cannot represent both clients at the same time, even if they give written consent , for it is not only awkward for him to sustain the claim of one and oppose the same in favor of the other but it is also highly unethical. • A lawyer may not represent conflicting interest even though parties agree to dual representation where conflict is between the attorney’s interest and that of client, because the lawyer should yield to client’s interest, or between a private client’s interest and that of the government by reason of public policy and interest. Where no true attorney-‐client relationship exists • The rule forbidding a lawyer from representing an interest adverse to that of the former client assumes, as a general proposition, that a true client-‐attorney relationship existed. • Consequently the absence of such relationship either with the lawyer of law firm of which he is a member makes the prohibition inapplicable.
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
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A public prosecutor may ethically sustain an information against an accused who is the complainant in another information filed by the same prosecutor because the latter represents not the private complainants but the people of the Philippines as the real offended party. The lawyer’s secretary, stenographer, or clerk who, in such capacity, has acquired confidential information from the attorney’s client may not accept employment or after becoming a member of the bar, represent an interest adverse to that of the lawyer’s client. The general prohibition applies to such person, notwithstanding the absence of attorney client relationship at the time the confidential information was acquired because of the nature of the work.
Effects of representation of Conflicting Interest 1. Subjects the lawyer to disciplinary action. 2. The attorney may be disqualified from representing the new client upon petition of his former client. 3. Where the representation of conflicting interest is unknown and works prejudice to the new client, the judgment against the new client may on that ground, set aside. 4. Lawyers right to be paid for his services rendered in favor of the former client may be affected only if the two matters are related and the former client objected to the representation.
CHAPTER XI Authority of Attorney
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
A. IN GENERAL Power to bind the client, generally • A lawyer must perform his duties to his client within the scope of his authority. • Within hi scope of authority, a lawyer may bind the client for any acts performed by him in pursuant thereto. Two Types of Lawyer’s Authority 1. General and Implied Authority • Professional employment of an attorney confers upon him this authority to do on behalf of the client such acts as are necessary or incidental to the prosecution or management of the suit entrusted to him. • Refers to ordinary procedure. 2. Special Authority • Authority granted by the client to bind him on substantial matter. • GR: Negligence or mistake of the counsel binds the client, based on the rule that any act done by the lawyer within the scope of his authority binds the client. • Employment by itself confers upon the lawyer no special authority to bind the client upon substantial matters. • The cause of action or claim which is the subject matter of the litigation are substantial matters which the lawyer cannot impair, novate, compromise and settle without clients consent. Attorney as agent of client • The relationship of attorney and client is in many respect one of agency and the general rules of ordinary agency apply to such relation.
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
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An attorney representing a client in court is, however, more than an agent and has powers different from and superior to those of an ordinary agent, he being an officer of the court.
Collection of Claims • An attorney retained by a creditor to enforce a claim has authority to take all steps necessary to collect it, such as sending a letter of demand requiring payment or filing the corresponding action in court if the debtor refuses to pay. • A lawyer without special authority discharge his clients claim for less than the amount thereof or for the full amount in kind. Acceptance of Service of Summons • A lawyer has no power to receive or accept on behalf of his client the service of summon in his bare professional capacity. • He is not an agent within the meaning of the rule authorizing service of summons upon an agent of corporation. • Exception: Lawyer may be regarded as an agent upon whom service of summons may be made and binding to the latter, where there are circumstances showing that he has been conferred or exercising additional powers that what is implied from the professional employment. • Thus, a foreign corporation without an agent or officer in this country other than its counsel who is also the sole representative for setting claims, the service made upon such counsel binds the foreign corporation because being the sole representative, it is presumed that he
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
has communicated to his client the service of process upon him. Delegation of Authority • The lawyer cannot delegate the confidence and authority reposed to him by the client to another lawyer because of the fiduciary relationship. Exception: Consent of the client, express or implied. • Client may also ratify the unauthorized delegation. Delegation of legal work • A lawyer has the implied power to delegate to his associate or assistant attorney under his supervision and responsibility, part or whole of his legal work, in the absence of an express agreement with the client to the contrary. • He may authorize another lawyer on his behalf to appear in court and such lawyer is presumed to be empowered to act as such. • The fact of the delegation of legal work does not create an attorney-‐ client relationship between the other lawyer and the client. • A lawyer may not however delegate to a layman any work which involves the study of law or its application such as computation & determination of period to appeal. B. AUTHORITY TO APPEAR Generally • A lawyer without being retained or authorized by the court may not represent another in court. • GR: The authority of the attorney continues until the termination of the litigation. Exception: Unless sooner revoked or withdrawn by the client.
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
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No written authority from the client is required to enable a lawyer to represent him in court.
Appearance • Coming into court as party either as a plaintiff or as a defendant and asking relief therefrom. • Appearance by counsel is a voluntary submission to the court’s jurisdiction by a lawyer professionally engaged to represent the cause of another such as by actual physical appearance or filing of a pleading. • The orderly conduct of judicial proceedings requires the counsel for a party to file with the court his formal written appearance in the case. • Without such formal appearance, counsel is not generally entitled to notice. General & Special Appearance • General Appearance • Any action on the part of the defendant or his counsel, except to object solely on the jurisdiction of the court over the person of the defendant, constitutes such appearance. • Amounts to voluntary submission to the court’s jurisdiction. • Special Appearance • One which seeks to contest solely the jurisdiction of the court over the person of the defendant and which seeks no relief other than the dismissal of the action exclusively on that ground. • Does not operate as voluntary submission. • It also refers to the failure of a counsel to appear, another lawyer appears on his behalf for a particular purpose.
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
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As amended by the 1997 Rules of Procedure, there is no longer a distinction between general and special appearance. Now, defendant may file a motion to dismiss not only on the ground of lack of jurisdiction over his person but also on some other grounds without waiving the jurisdiction of the court over his person.
Presumption of Authority • An attorney is presumed to be properly authorized to represent any cause in which he appears in all stage of the litigation and no written authority is required to authorize him to appear. • The fact that a second attorney has entered his appearance on behalf of a litigant does not authorize a presumption that the authority of the first attorney has been withdrawn, it merely means that the litigant has employed an additional counsel. • This presumption only applies to ordinary procedures and not with respect to substantial matters. Presumption disputable • The presumption that an attorney is duly authorized to manage a litigation is a disputable one and may be overcome by a clear evidence to the contrary. Disclosure of Authority • Notwithstanding the fact that an attorney is presumed to be duly authorized to represent a party, the presiding judge may On motion of either party and on reasonable grounds being shown require him to produce or prove his authority and to disclose whenever pertinent to the issue the name of the person who employed him.
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
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Trial & Appellate court, motu proprio and on valid grounds, may also require him to show authority.
Effects of unauthorized appearance • A party who has not authorized the lawyer to represent him is not bound by the lawyer’s appearance in the case nor the judgment rendered therein. • If the unauthorized appearance is willful the lawyer may be cited for contempt and be disciplined for professional conduct. Ratification of aunathorized Appearance • Unauthorized appearance of an attorney may be ratified by party expressly or impliedly. • Ratification retroacts to the date of the attorney’s first appearance and validates his actions. • Express ratification • Categorical assertion by the client that he has authorized the attorney of that he is confirming the authority to represent him. • Implied ratification requires the concurrence of the requirements: 1. That the party represented by lawyer is of age or competent, otherwise, he must have a duly appointed guardian or legal representative. 2. That the party or guardian is aware of the representation by the lawyer. 3. The he fails to promptly repudiate the assumed authority. • The absence of any of the requisites renders the ratification inoperative. C. CONDUCT OF LITIGATION Generally
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
Generally, a client may waive, surrender, dismiss or compromise any of his rights involved in the litigation in favor of the other party even without or against the consent of his attorney • An attorney can bind his client as to such substantial matters only with his clients express or implied consent. Reason: Designed to safeguard the client’s interest against malicious actions of his lawyer. Determination of Procedural Questions • A lawyer who has been retained to prosecute or defend an action has an implied authority to determine what procedural steps to take which, in his judgment will best serve the interest of his client, • Such as what pleadings hould be filed, where & when to file it and what defenses to raise. Making admissions • The authority of the lawyer to manage the clients cause includes the power to make admission of facts for the purpose of litigation. • No need of special authority from client. • It may be express or implied. • Admissions made by counsel are imputed to and conclusive against the client except if there is a showing of palpable mistake. • GR: Authority to make admissions is limited to the action which he is retained; Admissions made by him on behalf of a client in one case are not binding upon the same client in another suit. Exception: If lawyer has been expressly authorized to make such admission or if the 2 cases are related. • Admission which operated as a waiver or surrender of the clients •
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cause is beyond the scope of the lawyer’s authority. Entering into stipulations • A lawyer has an implied authority to agree or stipulate upon the facts involved in the litigation even without prior knowledge or consent of his client. • GR: Such Stipulations are binding to the client. Exceptions: 1. If he is allowed to withdraw therefrom with the consent of the adverse party. 2. When the court, upon showing of palpable mistake, permits him to withdraw 3. When what the lawyer agreed is that a witness, if presented in court, would testify as stated by the adverse party. Agreement as to what witness would testify • Agreement as to the truth of what a witness , if presented, would testify . • Generally binding to the client • Agreement as to what a witness would testify as that stated by the adverse party . • Not binding. • It deprives the court of the benefit of reflection as to the intelligence and veracity of the witness which can only arise through the process of examination in court. • Compromise of cause of action • Compromise o Contract whereby the parties, by making reciprocal concessions, avoid litigation or put an end to one already commenced.
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Lawyer is not authorized to enter into compromise without special authority from his client. The approval by the court of the compromise is not essential to the validity except if it is a class suit or executed on behalf of a minor or incompetent or an absentee.
Effect of Want of Special Authority • A compromise by the lawyer without special authority by the client does not bind the latter. • It amounts to a fraud against the client. • A compromise entered into without such authority is an unenforceable contract. • Judgment based on such compromise may be set aside or reopened. Ratification of unauthorized compromise • Client may ratify the unauthorized compromise, expressly or impliedy. • Implied ratification may take many forms such as silence or acquiescence by acts showing approval. Confession of Judgment • A confession of judgment stands on the same footing as a compromise. • Hence, a lawyer may not confess judgment against his client except with the knowledge and at the instance of the client. Dismissal of action or withdrawal of appeal • A lawyer has no authority to dismiss his client’s case with prejudice or an adjudication upon the merits which constitutes res judicata, even if he does not believe that his client is entitled to prevail in the action. • He has however an implied power to dismiss the client’s case without prejudice, that step not being a legal obstacle to refilling, whenever he is
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convinced that it is to the client’s interest. He has no implied power to waive his client’s right to appeal nor withdraw a pending without a special authority, but it may be ratified by the client.
Client’s right to dismiss or compromise action • The right of a lawyer for compensation for services rendered cannot have a higher standing than the right of the client to dismiss his cause or settle his litigation. • Nor can such right of counsel work as an obstacle to the approval by the court of the settlement effected by client. Limitations on client’s right • The client’s right to settle his actions is not absolute. • The dismissal or compromise by the client of his cause may not defeat the attorney’s right to just compensation for his services. • The client cannot exercise such right in a manner that is contrary to law, public policy, order morals or good customs or prejudicial to third person with a right recognized by law. • He cannot compromise civil status. Validity of marriage or legal separation, future legitime, ground of legal separation, future support and jurisdiction of courts. Authority after judgment • The power of attorney after judgment is more restricted. • In the absence of a greater authority expressly conferred, an attorney has only the power to take such steps as are necessary to make the judgment fully effective or to sustain it, or to relieve his client from its effects if it is adverse.
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An attorney has authority to bind his client in taking an appeal, it being a procedural measure to relieve the client to adverse effect of judgment.
D. MATTERS IMPUTED TO CLIENT Knowledge acquired by attorney • Knowledge acquired by attorney during the time that he is acting within the scope of his authority is imputed to the client. • Doctrine of Imputed Knowledge is based on the assumption that the attorney, who has notice of matters affecting his client, communicated the same to his principal in the course of employment. • The doctrine applies whether or not he actually communicated it to his client, the lawyer and his client being in legal contemplation, one juridical person. Notice to counsel as notice to client • The law requires that service of any written notice upon a party who has appeared by attorney/s shall be made upon his attorney or one of them, unless service upon the party himself is ordered by the court. • A notice sent to party who has appeared by counsel is not a notice in law. • Purpose: Maintain a uniform procedure. • Lawyer to whom the service of notice is to be made refers to the counsel of record or one who in writing has entered a formal appearance. • Where no notice of withdrawal or substitution of counsel is shown, notice to counsel of record is for all purposes notice to client. • The right to be notified through counsel may be waived either by attorney or his client.
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Notice to one as notice to other counsels; Exceptions • If a party appears by 2 or more counsel of record, notice to one of the, is notice to others as well as to the client, even though the one upon whom the service is made in only a deputy of the other. • The Solicitor General (SG) is the lawyer of the Republic and its officials sued in their official capacities. • When the SG has deputized government lawyer, he remains the principal counsel and service of notice on him of legal processes and not on the deputized lawyers is decisive. • Notice to such deputized lawyers is not binding • However, if an agency of the government appears by its own internal counsel, not as a deputized lawyer by the SG, notice to such counsel is deemed notice to SG. • EXCEPTIONS to the rules: 1. Either by agreement or proper manifestation one of the lawyers is expressly designated as one to whom service is to be made. 2. Instances when it is admittedly clear that one is the leading counsel and the rest are mere helpers, as when the adverse party and the court consider one of the lawyers as the principal counsel. Exceptions to rule that notice to counsel is notice to client 1. Strict application might foster dangerous collusion to the detriment of justice. 2. If service upon the party himself is ordered by the court. Mode of Service of Notice
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
1. Personal Service • Completed upon actual delivery 2. Ordinary Mail • Completed upon expiration of 10 days after mailing, unless court otherwise provides. 3. Registered Mail • Completed upon actual receipt by the addressee or after 5 days from the date he received the first notice of postmaster whichever is earlier. Personal service preferred; explanation required • Sec.11, Rul2 13 or ROC “ Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this may be cause to consider the paper as not filed. Mistake or negligence of counsel binding upon client • GR: Client is bound by his counsel’s conduct, negligence and mistake in handling the case. • The mistake of counsel in the conduct of the proceedings as a result of his ignorance, inexperience or incompetence does not constitute a ground for a new trial. • Instances where mistakes are binding to client: o Failure to file responsive pleading within reglementary period o Failure to appear at the scheduled hearing due to another engagement without asking for postponement
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Failure to present additional evidence and submitting the case on evidence already adduced Failure to file appellant’s brief due to political activities Failure to notify his client regarding an adverse judgment.
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Exceptions: 1. Adherence thereto will result to outright deprivation of the client’s liberty or property 2. Interests of justice so require 3. Gross or palpable mistake or negligence of the counsel depriving the client of due process and law.
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Instances of gross/palpable mistake: o Lawyer to attend hearing of criminal case, his failure to advise his client that he was going abroad which resulted to clients conviction o Counsel’s erroneous contrived strategy which prevented the accused from presenting an important evidence, which if presented would possibly result to his acquittal, even if such judgment has become final. o Failure to counsel to file the appellants brief without cause attributable to client, which resulted to his conviction o Failure of counsel to appear in the hearing which resulted to the accused’s conviction
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
CHAPTER XII TERMINATION OF ATTORNEY’S AUTHORITY AND CHANGE OF COUNSEL A. Termination of Counsel’s Authority GENERALLY: The relation of atty and client may be terminated by: -‐ the client -‐ the lawyer -‐ the court -‐ reason beyond the control of the parties A client has an absolute right to discharge his atty at any time with or without cause or even against consent. The existence of just cause is only important in determining the right of the atty to a just compensation. The right of the client to terminate the retainer is an implied term in every professional employment. LIMITATIONS ON CLIENT’S RIGHT -‐ The discharge or substitution of an atty without just cause does not negate his right to full payment of compensation as agreed in writing or in the absence of a retainer, to a reasonable amount based on quantum meruit NECESSITY OF NOTICE OF DISCHARGE -‐ as between client and his atty: no notice required; any act of the client indicating purpose to terminate the relation is sufficient -‐ however appearance of another counsel to file a motion to dismiss or other pleading does not operate as an implied revocation of the authority of the original lawyer
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as between the court and the party: there must be notice of discharge or a manifestation clearly indicating that purpose filed with the court and a copy served on adverse party atty must file a notice of withdrawal without such notice any process served on original counsel is binding upon the party
EFFECT OF DISCHARGE -‐ authority of atty to represent ceases -‐ however there are some cases when the atty may be required by the court to continue representation to prevent failure or miscarriage of justice DEATH OR INCAPACITY OF CLIENT -‐ terminates the relation between atty and client, hence atty may not represent the client in court unless he is retained by the administrator or heirs of the client’s estate or the client’s guardian (if client becomes incapacitated or incompetent during the pendency of the case) -‐ it is the duty of the atty to inform the court of the client’s death or incapacity and to give the name of the administrator, executor or the guardian as the case may be LAWYER MAY WITHDRAW ONLY FOR A GOOD CAUSE -‐ atty may withdraw before the final judgment with the client’s written consent or the court’s approval of his petition to withdraw -‐ approval of court not necessary if withdrawal is with conformity of client and is accompanied with the appearance of new counsel,
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however if no new counsel has entered appearance court may require the atty’s withdrawal in abeyance until another lawyer appears for the party atty may withdraw without client’s consent but must be with approval of the court and only for a good cause namely: o client pursues illegal or immoral course of conduct in connection with the case he is handling o client insists the lawyer pursue conduct violative of the canons and ethics o inability to work with co-‐ counsel will not promote interest of the client o due to mental or physical incapacity o client deliberately fails to pay fee for services or comply with the retainer agreement o lawyer is elected or appointed to a public office o other similar causes (i.e. client stops contact, client refuses cooperation)
PROCEDURE FOR WITHDRAWAL 1. If without client’s consent, file petition for withdrawal in court. 2. Serve copy of the petition upon client and the adverse party at least 3 days before the date set for hearing. 3. Present the petition in advance of the trial of the action to allow his client to secure the services of another lawyer. 4. The court may grant or deny depending on circumstances. 5. The lawyer must still appear on the date of hearing until there is a withdraw of record.
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Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
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lawyer has no right to presume that his petition will be granted. he remains counsel of record until his petition is approved
DEATH OF ATTY -‐ terminates atty-‐client relationship -‐ death of a partner in a law firm does not severe the professional employment between law firm and the client, the remaining partners continue to assume professional responsibility ACCEPTANCE OF INCOMPATIBLE OFFICE -‐ terminates atty-‐client relationship -‐ notice must be given to the court because it will not take judicial notice of the same, without such notice, process served upon such counsel is still binding on client B. CHANGE OR SUBSTITUTION OF COUNSEL REQUIREMENTS: a. written application for substation b. written consent of client c. written consent of atty to be substituted d. proof of service of notice of the application upon atty to be substituted -‐ verbal substitution not allowed -‐ defective substitution or one which does not comply with the requirement will not terminate the original counsel’s authority but will still recognize the appearance of the new counsel (both will be considered counsel of record) -‐ client may employ as many counsel as he pleases but professional courtesy requires that new counsel should communicate with the original
counsel before entering his appearance
CHAPTER XIII COMPENSATION OF ATTORNEY A. RIGHT TO ATTORNEY’S FEES Generally • Two concepts of Attorney’s Fees o Ordinary Concept • Reasonable compensation paid to a lawyer by his client for the legal services he has rendered the latter. o Second Concept • Amount of damages which the court may award to be paid by the losing party to the prevailing party -‐ The award of damages belong to the client, unless the lawyer & the client have agreed that whatever attorneys fee awarded by the court when the client prevails in the action shall belong to the lawyer as part of his compensation. • The rule that the practice of law is a profession and not a money-‐making trade does not operate as to deny the lawyer the right to attorney’s fees for his professional service. • He has a right to have and recover from his client a fair and reasonable compensation for his services, except 1. where he has agreed to render his services gratuitously or 2. he has been appointed as counsel de officio. • The compensation of a lawyer should be a mere incident of the practice of
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Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
law, the primary purpose of which is to render public service. Right to protection of counsel’s fees • A lawyer is much entitled to judicial protection against injustice, imposition or fraud on the part of his client as his client on the part of his counsel. • The duty of the court is not alone to see that a lawyer acts in proper and lawful manner, it is also its duty to see that lawyer is paid for his services. Requisites for right to accrue: 1. Existence of Attorney-‐client relationship 2. Rendition of a lawyer of legal services • A lawyer who rendered professional services in favor but over the objection of the party is not entitled to fees even though the services redounded to the benefit of the party. Written Agreement • A written agreement is not necessary to establish a client’s obligation to pay attorney’s fees. • The client’s obligation to pay attorney’s fees arises from the inanimate contrat of facius ut des (I do and you give) which is based on the principle that no one shall unjustly enrich himself at the expense of another. Quantum meruit (QM) • It means as much as the lawyer deserves or such amount which his services merit. • Recovery of attorney’s fees on the basis of QM is authorized: 1. No express contract for payment of attorney’s fees
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2. Although there is a formal contract for attorney’s fees, the fees stipulated are found unreasonable or unconscionable by the court 3. Contract for attorney’s fees is void due to purely formal defects of execution 4. When the lawyer, for justifiable cause, was not able to finish the case to its conclusion 5. When the lawyer and the client disregard the contract for attorney’s fees. 6. Client dismissed his counsel before the termination of the case or the latter withdrew therefrom for valid reasons. QM is a device to prevent undue enrichment based on equitable postulate that it is unjust for a person to retain benefit without paying for it.
Who is liable for attorney’s fees • GR: Only the client who engaged the services of counsel either personally or through an authorized is liable for attorney’ fees. • A party who is not a privy to the employment contract or who did not authorize the lawyer’s retainer is generally speaking not liable for such fees. • The exceptions on this rule rest on the equitable principle that a person who accepts the benefits of the legal representation impliedly agrees to pay the attorney’s fees for he may not unjustly enrich himself at the expense of the lawyer. Liability of persons benefited by counsel’s service • GR: A person who had no knowledge of or objected to, the lawyer’s representation may not be held liable
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for attorney’s fees even though it has redounded to his benefit. • The objection to the lawyer’s appearance should be raised before and not after beneficial services shall have been rendered by the lawyer, otherwise such party who benefited from the representation may be required to pay counsel fees. • The liability is based on equity. • If the legal representation redounded to the benefit of the party concerned, the retention /acceptance of the benefit cure the defect of lack of authority on the part of the agent to retain the lawyer. Exception: Employment of private lawyer to represent the government entity by an official who has no authority in law to do so, since the benefits secured by the legal representation cannot take the place of the law and will not create an obligation on the part of the government entity to pay fees. Liability of Assignee • Since an assignee of all interests pent elite usually steps into shoes of the assignor and acquires all of the latters rights and obligations in the action, the assignee may be held liable for atty’s fees from out of the proceeds of favorable judgment. Liability in Labor Cases • A lawyer who represents a union and its members and with whom he has a retainer for payment for a fixed percentage amounts recovered from the company is entitled to be paid his fees not only by the union members but also by the non-‐union members as well those who derive benefits from his services. • It is just and fair that the lawyer who represented the struggling members of the union to secure benefits for all
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employees be paid just fees by all those who received benefits. Attorney’s fees in labor cases may not be more than what the law provides and they may not be checked off from any amount due the employees without their written consent.
Liability in derivative suits • Where in derivative suit, the services of counsel who instituted the action upon the request of stockholder are beneficial to the corporation, the counsel fees may be properly charged against corporate funds. • Any stockholder may intervene and oppose the grant of such fees as charge against funds of the corporation. Liability in receivership proceedings • The assets under receivership may be liable for the fees of a lawyer employed by a receiver to help him in the discharge of his duties. • However, attorney’s fees of the counsel for a defendant in a receivership proceeding are personal obligations of the defendant and may not be paid out of the assets in the hands of receiver, unless it redounded to the benefit of the receivership or of the plaintiff who asked for the appointment of receiver. Liability in trusteeship or guardianship proceeding • Trustee may be indemnified out of the trust estate for his expenses in rendering and proving his accounts and for the counsel fees in connection therewith. • The court may determine whether or not a trustee may be allowed expenses for attorney’s fees and
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permitted to charge the same against the trust estate. The property of the ward may lawfully answer for the lawyer’s fees of the lawyer employed by the guardian, provided there is prior approval of the guardianship court.
Liability in estate proceedings • Fees of lawyer appointed by executor or administrator to assist him in the execution of his trust are not chargeable against estate of the deceased since the services are rendered to the executor. • Liability for payment rests on the executor or administrator who may, if the services are beneficial to the estate, either seek reimbursement from the estate if he has already paid them or include them in his account with due notice to all parties interested. • Ultimately, the estate will answer for the fees of the lawyer whose services are beneficial to the estate. • If the assets have been distributed, the distributees or heirs will have to contribute their share for the payment of the fees as the obligation of the estate follows the assets, except in the hands of purchaser in good faith. Who are entitled to or the share in attorney’s fees • The lawyer who has been engaged by a client is the one entitled to recover the fees. • However, if more than one lawyer have been employed by a client, the question of fess may arise. • GR: Lawyers who jointly represent a common client for a given fee, in the absence of an agreement as to division of fees, share equally as they
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are special partners for special purpose/ Partners in law firm share in the profits according with their partnership agreement even though only one of them actually rendered the service. Lawyer shall in cases of referral, with the consent of the client, or those lawyers who rendered services at one time or another in the action, be entitled to a division of fees in proportion to the work actually performed and responsibility assumed.
Non-‐Lawyer not entitled to lawyer’s fees • The statutory rule that an attorney shall be entitle to have and recover from his client reasonable compensation requires an attorney-‐ client relationship as a condition for the recovery of attorney’s fees. • A non-‐lawyer cannot therefore recover attorney’s fees even if there is a law authorizing him to represent a litigant in court. Restrictions on some lawyers to charge fees • A lawyer who is absolutely disqualified from engaging in the private practice of law by reason of his government position may neither practice law nor should he do so illegally, charge attorney’s fees for such services. • The prohibition does not apply to the collection of fees for services rendered before the lawyer qualified for the public office even though payment thereof is made thereafter. • A lawyer, as a government official charge with the duty of extending legal services to indigent litigants may not collect attorney’s fees. • An executor or administrator is prohibited from charging the estate
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under his administration of professional fees for services rendered by him as a lawyer. Reason: Legal maxim that the one acting in fiduciary capacity must not place himself in such a position as to make his interests antagonistic with his principal. Right of counsel de oficio to fees • In the absence of a law allowing compensation, a counsel de officio cannot charge the government nor the indigent litigant for his services. • It is not a violation of the constitutional restriction against taking of property w/o remuneration or due process Reason: It is one of the obligations which an attorney willingly assumed when he took his oath as a lawyer is to render free legal services whenever required by the court to do. • The ROC provides a token compensation for counsel de oficio, subject to the availability of the funds as may provided by law the court may order that a counsel de oficio be compensated in such sum as court may reasonably fix which shall NOT: a. Be less than P30 nor more than P50 in light felony b. P100 in less grave felonies c. P200 grave felonies other than capital felonies d. P500 for capital offenses • Compensation for counsel de oficio is not intended as a source of regular income. Attorney’s conduct affecting his right to fees • Right of a lawyer to recover attorney’s fees may be affected or negated by misconduct on his part such as: o Carelessness o Negligence in the discharge of duties o Misrepresentation
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
Abuse of clients confidence Unfaithfulness in representing his client’s cause The adverse result of the litigation does not deprive a lawyer of his right to attorney’s fees. A mere honest mistake in the discharge of his duties does not also defeat his right to fees. o o
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Withdrawal of counsel from the case • Lawyer’s unceremonious withdrawal or abandonment of the action which prejudices the client negates his right to attorney’s fees/ • This constitutes as a breach of his implied undertaking to prosecute or defend the client’s cause until termination of the litigation. • If the withdrawal is with the client’s written conformity, it is presumed in the absence of evidence to contrary, that he and his client have mutually agreed to terminate the services and to compensate him for such services up to the termination of their relation. • The lawyer must refund to the client such part of the retainer as has not been clearly earned. Representation of Adverse Interests • Representation of conflicting interests without written consent of the client as to the dual representation made after full disclosure of facts negates the lawyers right to receive compensation from both of them. Lawyer’s right unaffected by clients conduct • A client cannot, in the absence of lawyer’s fault, consent or by a waiver, deprive the lawyer of his just fees already earned.
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While a client has the right to discharge his lawyer at any time, dismiss or settles his action he cannot by taking such step deprive the lawyer of what is justly due to him unless the lawyer by his actions, waives or forfeits his right.
Attorney’s discharge by client • The discharge of a lawyer by his client without a valid cause before the conclusion of the litigation does not negate the lawyer’s right to just fees. • However, the discharge may or may not affect the amount of fees depending upon the existence or absence of a valid written contract for professional service and nature of that contract. 1. No express written agreement as to fees -‐ Lawyer may only be entitled to recover the reasonable value of his services up to the date of his dismissal. -‐ this rule applies if there is an express understanding of payment of fees but it is not reduced to writing except if the dismissal was made after the termination of the case, in which case the lawyer is entitled to full amount agreed. 2. If there is a written agreement and fee stipulated is reasonable and absolute -‐ a lawyer discharged without valid cause shall be entitled to the full amount agreed. -‐ If the fee stipulated is contingent, and dismissal was made before termination of case, he shall be entitled to fees for services thus rendered. BUT if the contingency occurs or the client prevents its occurrence by dismissing or settling his cause, lawyer is entitled to the full amount agreed. -‐ The lawyer should question his discharge to entitle him to the amount agreed upon otherwise the quantum meruit applies as the basis of payment.
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The discharge of a lawyer for valid cause does not deprive the lawyer of his right to just fees. He may only be deprived of such right IF the cause for his dismissal constitutes in itself an obstacle for recovery.
Clients dismissal of action • Client may dismiss his cause or action with or without his lawyers counsel. • But this should not deprive the lawyer of his right to attorney’s fees in the absence of waiver by the lawyer. • If dismissal of action was made in good faith, the lawyer is entitled to such reasonable fees for the services rendered. • If the dismissal was made with the intention to defraud the lawyer with respect to his fees, he shall be entitled to the full amount agreed or in absence of agreement, a reasonable value of his services based on QR. • A lawyer’s consent to the dismissal does not negate his right unless under the circumstances it constitutes as a waiver. Clients compromise of action • A lawyer’s right to just compensation does not give him a superior right as to preclude the client from settling his case. • Compromise does not also deprive the lawyer of such right. ** Same rule sa dismissal of action with respect of the intention of the client. B. CONTRACT FOR ATTORNEY’s FEES Generally • A contract of professional services may either be Oral or Written.
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Fee stipulated may be Absolute or Contingent. It may be a : o Fixed percentage of the amount recovered in the action. o May provide a fee per appearance, per piece of work or an hourly basis. o Combination of these arrangements. A written retainer has distinct advantages over an oral contract. o In case of controversy as to question of fees, a written contract generally controls the amount thereof. o Event of lawyer’s dismissal by the client before conclusion of the litigation without justifiable cause, attorney may be entitled to the full amount agreed. o Without written agreement, he may only recover the reasonable worth of his services rendered up to the date of his dismissal.
Kinds of Retainer: General & Special • General Retainer or retaining fee -‐ Fee paid to a lawyer to secure his future services as a general counsel for any ordinary legal problem that may arise in the routinary business of the client and referred to him for legal action. -‐ Fees are paid whether or not there cases referred to the lawyer. Reason: Compensation for a lost opportunity of a lawyer to render service to other parties. • Special Retainer -‐ A fee for specific case handled or special service rendered by a lawyer for a client.
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
Validity of Contract • General rules governing the validity of an ordinary contract apply to an agreement for professional services. • It must not be contrary to law, good morals, public policy, public order and good customs. Effect of Nullity of Contract • Nullity of a professional contract which results from the illegality of the object sought to be achieved precludes a lawyer from recovering his fees for such services. • However, if nullity is due to want of authority on the part of one of contracting parties or irregularity in its formal execution or to unreasonable amount of fees fixed therein – lawyer is entitled to recover what is justly due to him on the basis of QR. • In this case the object is legitimate and contract will not be enforced because of its formal defects. Effect of Unconscionability of amount • Written contract of service shall control the amount to be paid unless found by the court to be unconscionable or unreasonable. • Unconscionability of the amount renders the contract invalid. • However it will not preclude recovery, it will only justify the court to fix the reasonable worth of his services based on QR. Contingent Fee Contract • It is an agreement in writing in which the fee, usually a fixed percentage of what may be recovered in the action, is made to depend upon the success in the effort to enforce or defend a supposed right.
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The lawyer gets paid only if he wins the case UNLESS the client prevents the successful prosecution or defense of the action, in which case lawyer is entitled to fees based on QR; or to the full amount agreed if client acted in bad faith. Absolute fee on the other hand, entitles a lawyer to get paid for his efforts regardless of the outcome of the litigation. Contingent fee contract is subject to supervision and scrutiny of court to protect client from unjust charges. The court may reduce the amount of unconscionable contingent fee to a reasonable sum, even if client consented thereto. Unconscionable fee – amount which according to the circumstances of the case, constitutes an over exaggeration of the worth of the services of a lawyer. It depends upon an express contract without which, lawyer may only recover only on the basis of QR. It applies even if initial fees are paid before or during the progress of litigation as long as the bulk of the fees depends on the success of the lawyer. It is applicable to Civil and Criminal actions. It is the only way by which a poor litigant may have his rights enforced or protected by a lawyer J
Validity of Contingent Fee • In this jurisdiction, it is not prohibited by law & is impliedly sanctioned. • Its validity DEPENDS upon the reasonableness of the amount fixed as contingent fee under the circumstances of the case. • Generally, Valid and Binding UNLESS obtained by FRAUD, IMPOSITION,
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
SUPPRESSION OF FACTS OR EXCESSIVE FEES. L Effect of Agreement to pay litigation expenses • The rule of the profession forbid a lawyer from agreeing to pay or bear the expenses of litigation. • He may HOWEVER, in good faith, advance the expenses as matter of convenience but subject to reimbursement. REASON: To prevent lawyer from acquiring any interest in the litigation & avoid conflict of interests between them. • This agreement is known as CHAMPERTRY. L Construction of Professional Contract • GR: To adopt such construction as would be more favorable to the client even if it is prejudicial to the lawyer L Reason: Inequality of situation between the lawyer, who knows the technicalities of the law and the client who is ignorant of such and also because of the lawyer’s status as officers of court. C. MEASURE OF COMPENSATION Amount fixed in valid contract • The amount attorney’s fees due is stipulated in the written retainer agreement which is conclusive as to amount of lawyer’s compensation • This rule applies whether the fee contracted for is absolute or contingent. Factors taken into account • In determining the amount of fess which a lawyer may charge his client the following factors are considered as provided in Rule 20.01 of the Code namely: 1. The time spent and extent of services rendered or required.
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2. The novelty and difficulty of questions involved. 3. Importance of subject matter 4. Probability of losing other employment as a result of acceptance of the case 5. Skill demanded 6. Customary charges for similar services and the schedule of fess of the IBP charter to which he belongs 7. Amount involved in the controversy and the benefits resulting to the client from the service 8. Contingency or certainty of compensation 9. Character of employment , whether occasional or established 10. Professional standing of the lawyer. These factors, not one of which is controlling are mere guides in ascertaining the real value of a lawyer. Determination of attorney’s fees based on these factors are question of facts , it requires evidence to prove the amount of fees.
Nature of Services • The value of the lawyer’s service is in large measure determined by the nature, quality & quantity of such services. Skill & Standing of a lawyer • A lawyer acquires a reputation for professional capacity & fidelity to trust through years of hard labor and devotion to duty evidenced by the quality of his works. • Such lawyer with high reputation also acquires persuasive ability in the pleadings he makes.
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Ability, skill & competence of a lawyer are not measured by his income. Neither is the length of time a lawyer has practiced a safe criterion of his character and quality of his work.
Value of interest involved • Generally, the bigger the size or value of the interest or property involved in a litigation the higher the attorney’s fees. Reason: The higher the stakes the more the case is hotly litigated and the greater efforts the lawyer exerts. • But in a million peso litigation, the percentage fee contingent upon recovery becomes smaller as the amount of recovery gets bigger. (INVERSE PROPORTION RULE) Reason: based on the assumption that the amount of work required remains the same even though the interest in the action exceeds several million pesos. Loss of opportunity for other employment • Two ways which a lawyer may loss opportunity for employment: 1. The acceptance will preclude a lawyer from appearing for others in cases likely to arise out of the transaction in view of prohibition against representation of adverse interests. 2. There is a reasonable expectation that the lawyer not accepted employed by other clients. Difficulty of issues involved • It includes the preparation, study and research put into the case by the lawyer, to convince the court as to the soundness of the clients’ cause.
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Test Case • Where several actions or possible disputes, such as in insurance, tax or labor, involve an identical question and one case is litigated as a test case, the value in controversy in all the actions should bear its appropriate proportion to the amount due as fees to the lawyer who prosecuted the test case. • A test case is usually litigated with energy and diligence even if the actual amount is insignificant because the resolution of the other actions which involve large sums of money is made to depend on the favorable outcome of the test case. Results secured • The fact that a lawyer failed to secure for his clients what he desires does not deprive him of the right to recover compensation for his services except when the fee agreed upon is contingent. • A different rule would mean that every professional fee is contingent fee and for every litigated case, it is only the lawyer in the winning side will get paid for his services. • If that were the rule, the practice of law will cease to be a dignified and honorable profession. Statutory limitation as to fees • Legislature, in the exercise of police power may by law prescribe the limit of the amount of attorney’s fees. • Art. 111 of Labor Code provides “ it shall be unlawful for any person to demand or accept in any judicial or administrative proceedings for the recovery of wages, attorney’s fees which exceed 10% of the amount of wage recovered” • Art. 222 of the same Code “ No attorney’s fees xxx arising from any
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collective bargaining negotiations shall be imposed on any individual member of a contracting union: Provided however, the attorney’s fee may be charged against the union fund in an amount agreed upon by the parties. Any contract to the contract is void Art. 203 of the same Code “ No agent, Attorney xxx pursuing or in charge of the preparation or filing of any claim under Employee Compensation& State Insurance Fund shall demand or charge his services any fee, stipulations to the contrary are void.
Fees in case of Referral • It is improper for a lawyer to receive compensation for merely recommending another lawyer to his client for if such practice is permitted, it would tend to develop the evils of commercialism. • It is only when, in addition to referral , he performs legal service or assumes responsibility in the case that he will be entitled to a fee. A lawyer shall not receive from another without clients consent • Rule 20.03 of the Code “ A lawyer shall not, without full knowledge & consent of the client, accept fee, reward, commission, interest or other compensation related to his employment from another person other than his client” • This rule is designed to secure the fidelity to the client’s cause and to prevent room of suspicion on the part of the client. • Corollary to this rule is the principle that whatever a lawyer receives from the opposite party in the service of his client belongs to the client.
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A lawyer shall avoid controversies with client concerning his fees • Rule 20.4 of this Code “ a lawyer should avoid controversies with clients concerning his compensation and to resort to judicial action only to prevent imposition, injustice or fraud. • He may take judicial action to protect his fees either in the main action he rendered his services or an independent civil suit against his client. D. PROCEDURE TO RECOVER FEES Lawyer’s application to pay his fees • Canon 16, Rule 16.03, a lawyer may apply so much of the clients funds that come into his possession as may be necessary to satisfy his fees and disbursements, giving notice promptly to his clients. • This provision assumes that the client agrees with the lawyer as to the amount of the fees. • In case of disagreement or when client disputes the amount claimed for being unconscionable, the lawyer may not arbitrarily apply the funds in his possession for payment of his fees for it is violative of their trust relationship. • The lawyer should file the necessary action in court to fix and recover the amount of his fees. Petition as incident of main action • A lawyer may enforce his right to fees by filing the necessary petition as an incident of the main action in which his services were rendered only when something is due the client in the action from which the fee is to be paid;Or when the client settles or waives his cause in favor of the adverse party in fraud of the lawyers claim for compensation.
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
The remedy cannot be availed of if the client recovers nothing in the main action. Reason: Question of fees cannot be determined until after the main action has been decided & subject of recovery is at the disposition of the court. • The petition may be filed with the court: -‐ before the judgment in favor of the client is satisfied or proceeds thereof delivered to client -‐ before judgment is rendered BUT the determination as to the propriety of fees will have to await the outcome of the litigation, at which time the issue as to fee may be tried with notice given to interested parties. • Court may not order client to pay fees before judgment is rendered, there being nothing from which they be paid except if it is certain that there is something due the client such as in estate proceedings; or when client dismissed the services of the lawyer before termination of the action, and funds therefor are available. Independent civil action • Lawyer may enforce his right to reasonable compensation in an independent civil action in ff cases: 1. If the court trying the main action dismissed the cllient’s action or nothing is awarded to him L 2. The court deciding the main action has no jurisdiction over the action or has already lost it. 3. The person liable for attorney’s fee is not party to main action 4. The court reserved to the lawyer the right to file a separate action •
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
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5. The services for which the lawyer seeks payment refers to matters not related to the main action. 6. Court rendered judgment in the main action without ordering payment of attorney’s fees and such become final. Remedies in Estate Proceedings • The procedure for collection of fees in an estate proceeding is for the lawyer to ask the administrator or executor to pay him his fees. • If the administrator or executor refuses or fails to do so, lawyer has two remedies: 1. File an independent civil action against administrator or executor in his personal capacity & should judgment be secured and latter pays, the latter may include the amount in his account file with the probate court. 2. File a petition with the probate court praying, after due notice to all persons interested, allow his claim & direct the administrator/executor to pay his fees as expenses of administration. • If administrator/executor dies before payment of fees, he may file a claim against the estate of the deceased administrator/executor or a petition for allowance of fees with probate court. • A lawyer may enforce his right with the probate court at any time before the estate proceeding is definitely closed. Afterwards, his remedy is to pursue an independent action against the administrator in his personal capacity or the distributees of the assets of the estate. Court Jurisdiction
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The court having jurisdiction to try the main action in which the lawyer rendered services has also jurisdiction to pass upon the question of fees even though the total sum thereof is less than the jurisdictional amount cognizable by the court.
Necessity of Hearing • A petition for recovery of attorney’s fees has to be prosecuted and the allegations therein established as any other money claim. • The persons entitle to or must pay the fees have the right to be heard upon the question of the propriety of the amount. • Burden of proof is upon the lawyer to establish his allegations. Defenses • Action for recovery of attorney’s fees is subject to usual defenses in ordinary action such as res judicata, prescription, nullity of contract or lack of attorney-‐client relationship. Execution • The final award of attorney’s fees may be enforced by execution. • It may be enforced against any property of the client including the proceeds of the judgment secured for the client in main action/ E. ATTORNEY’S FEES AS DAMAGES Two concepts of attorney’s fees compared Attorney’s fees as Attorney’s fees as Damages compensation Awarded by the Amount to be paid court to the by the client to the successful party as lawyer for the an indemnity for services rendered by damages sustained the latter. by him prosecuting or defending,
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
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through counsel, his cause. Belong to the client Payable to the unless there is an lawyer. agreement between the lawyer & client that whatever attorney’s fees that the court may award shall belong to the lawyer as compensation or in addition thereto. Fee as damages not recoverable – General Rule • GR: Attorney’s fees as damages are not recoverable. • An adverse decision does not ipso facto justify their award in favor of the winning party. • Public policy requires that no penalty be placed on the right to litigate. Fee as damages recoverable-‐ Exception to the rule. 1. When there is agreement of payment of such fees in the event of suit to enforce a contract 2. When exemplary damages are awarded 3. Defendant’s action or omission compelled plaintiff to litigate. 4. Criminal cases of malicious prosecution 5. Action is clearly unfounded 6. Defendant acted in gross & evident bad faith 7. Actions for support 8. Cases of recovery of wage 9. Actions for indemnity under workmen’s compensation and employer’s liability laws 10. Separate civil action arising from a crime
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
11. When at least double cost is awarded in cases of frivolous action or appeal. 12. Court deem it just & equitable 13. Special law so authorizes. Right to private counsel a precondition • To entitle a party to recover attorney’s fees as an item of damages, he must not only show that the case falls under any of the exceptions that may warrant the award thereof; he, including public litigant, MUST show his right to employ a private counsel. • A successful litigant who prosecuted his action without the assistance of a private counsel is not entitled to awards of attorney’s fees. Award of attorney’s fee Discretionary • Award of attorney’s fees is discretionary on the part of the court. • But the exercise of such discretion, must be based on facts appearing on the text of the decision. • The decision must state the reason for the award of such fees, unless the text thereof plainly shoes the case comes within the exceptions. • The appellate court may award attorney’s fees or increase or reduce the amount thereof whenever the law or circumstances require. Pleading and Practice • The claim for attorney’s fees as damages and the ground relied upon must be pleaded. • In the absence of such allegation, it will not be granted. • It must be proved and specifically prayed for.
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CHAPTER XIV ATTORNEY’S LIEN A. IN GENERAL Generally • Rule 22.02 “ A lawyer who withdraws or is discharged shall, subject to a retaining lien, immediately turn over the paper and property to which the client is entitled and shall cooperate with his successor in the orderly transfer of the matter, including all information necessary for the proper handling of the matter.” • Rule 16.03 of the Code “ A lawyer shall a lien over the funds of his client and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements and giving notice promptly thereafter to his client. He shall also have a lien to same extent on all judgments and executions he has secured for his client as provided in ROC” • The rules are designed to insure the payment of the lawyer’s fees and reimbursement of his lawful disbursements in keeping with his dignity as an officer of the court. Retaining and Charging Liens Distinguished Retaining Lien Charging Lien Right of an attorney Right which the to retain the funds, attorney has upon all documents & papers judgments for the of his client which payment of money & have lawfully come executions issued in into his possession pursuance thereof, until his lawful fees & secured in favor of disbursement have the client. been paid & to apply such funds to the satisfaction thereof. General lien for the Special lien in a balance of the particular case &
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
account due to the attorney from his client for services rendered in all matters which he may have handled for the client, regardless of outcome. It does not require notice thereof upon the client and the adverse party to be effective. It is dependent upon and takes effect from the time of lawful possession.
presupposes that a favorable judgment has been secured for the client in the case.
A written notice thereof to his client and to adverse party is necessary to be effective. It covers only services rendered by an attorney in the action in which the judgment was obtained and takes effect only after he shall have caused a statement of his claim entered upon the record of the particular case.
B. RETAINING LIEN Nature and essence of retaining lien • Retaining lien is a passive right and cannot be actively enforced. • It amounts to a mere right to retain the funds, documents & paper as against the client until the lawyer is fully paid for his fees. • The inconvenience that may cause the client as a result of the retaining lien is the reason and essence of the lien. Requisites for Validity a. Attorney-‐client Relationship b. Lawful Possession by the lawyer of the client’s funds, documents and papers in his professional capacity c. Unsatisfied claim for attorney’s fees or disbursements.
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Property to which Lien Attaches • Retaining Lien attaches to all property, papers, books, documents or securities of the client that may have lawfully come to the lawyer professionally or in the course of his professional employment, not necessarily in connection with a particular case handled for the client. • It also attaches to money which comes into his possession by way of writ of execution ordered by the court. • It does not include funds or properties which come into possession of the lawyer in another capacity other than his professional capacity, such as an agent or trustee. • The lien does not extend to properties of the clients principal, or those adjudge by the court in favor of the client’s adversary. Reason: Lien may only be enforced against the properties belonging to the client and not to those of his adversary or belonging to third persons. • It also does not attach to documents introduced as exhibits in court, they being subject to court’s control. When Lien Attaches • The retaining lien attached from the moment the attorney lawfully obtains and retains possession of the properties of client. • The fact that the client transfers the property evidenced by a document or title in the lawful possession of the attorney does not defeat the lien. Bond for return of Documents • The retaining line, once it has lawfully attached to funds etc. of the client, is uncontestable, and the court may not compel him to surrender them without prior proof that his fees are already paid.
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However, the court may require the surrender thereof upon the client’s posting of an adequate bond or security to guarantee the payment of fees.
Extinguishment of Retaining Lien • The lien is dependent upon possession and does not attach to anything not in possession of lawyer. • It expires when the possession lawfully ends, as when the lawyer voluntarily parts with the funds etc of the client OR offers them in evidence in court. • If the properties were illegally taken from the custody of the lawyer the lien is not lost UNLESS by his act or omission he waives his right thereto. • Mandamus will lie to restore possession of the documents unlawfully taken from him Satisfaction of Lien • Unless the client voluntarily pays him his fees the lawyer still has to file the necessary action to recover what is due to him from his client. • The lawyer need not file an action in court to enforce his retaining lien and recover his fees if the client does not dispute his claim for attorney’s fees. • In such case, lawyer may apply the clients’ funds in satisfaction of his claim and send an accounting to his client and remit the balance, if any, to the client. • But if the client questions his claim or the amount of fees, the lawyer cannot apply the funds. His remedy is to file the necessary action. C. CHARGING LIEN Nature and essence of Charging Lien • Abstract and potential right until it is made active and operative by:
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a. recording a statement of claim in the case and; b. serving notice thereof upon the client and adverse party. It gives the lawyer the same right and power as the client over such judgment & execution to enforce his right and secure payment. J Based on natural equity that a client should not be allowed to appropriate the whole judgment in his favor without paying the services of his lawyer in obtaining the judgment. It is a personal claim enforceable by writ of execution. It does not attach to the property in litigation. It is LIMITED ONLY to money judgments and not to any other kinds of judgments such as judgment for annulment of contract or delivery of real property.
Requisites for Validity of Charging Lien a. Attorney-‐client Relationship b. Attorney has rendered services c. A money Judgment favorable to the Client has been secured in the action d. Attorney has claim for attorney’s fees or advances e. Statement of his claim has been duly recorded in the case with notice thereof served upon to the parties. • The lawyer asserting the lien need not be the one who successfully concluded the action for the client. • It is sufficient that he has rendered some service at any stage of the proceeding. Recordal and Notice of lien • The recordal to be valid, should be effected while the court has jurisdiction over the case before the full satisfaction of the judgment.
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The notice is to give the client an opportunity to object to the lien or amount claimed by the lawyer. If the client dispute it the court should hear the parties and determine from evidence submitted by them the lawyer’s right to the lien as well as to the amount of fees. If the client fails to contest the claim he shall be liable for the claim even if it is unjust. The notice to the adverse party is to bind him as to the charging lien, once recorded, being a stranger to the contract between the lawyer and his client. Otherwise, the adverse party may not be held liable under the charging lien. The adverse party cannot contest the validity of the lien that being the concern of the client.
To what charging lien attaches • The lien, once recorded, attaches to the judgment for the payment of money and the execution issued in pursuance of such judgment. • It also attaches to the proceeds of the judgment in favor of client and proceeds of compromise settlement. • It does not attach to property or land in litigation. • It is restricted to the amount awarded to the client by final judgment. • Since a charging lien presupposes a favorable judgment has been obtained for the client, the lawyer for the losing party in a suit does not acquire a charging lien in the action. • A lawyer as a private prosecutor cannot claim a charging lien upon the judgment of dismissal entered in a criminal case; his remedy being a separate civil action.
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Effects of Charging Lien • It partakes of a nature of collateral security or a lien on real or personal property. • It follows the proceeds of the judgment wherever they may be and whoever received them. J • The lien survives the death of the client and need not be enforced in the proceeding for the settlement of the client’s estate. Extinguishment of Charging Lien • A charging lien which has been recorded before the case has been decided is extinguished when the client loses the action as it can only be enforced against the judgment or execution thereof. • The remedy of lawyer is to file a separate civil action for recovery of fees. • A client cannot defeat the lien by an adverse action on his part such as terminating the service of lawyer, dismissing the case or waiving the cause in favor of the adverse party, unless by the actions of lawyer he is deemed to have waived it. Assignment of Charging Lien • Attorney’s Charging lien may be assigned or transferred without the preference thereof being extinguished except when the assignment carries with it breach of attorney’s duty to preserve his client’s confidence inviolate. • The assignee steps into the shoes of the lawyer and enjoys all the rights which the latter has in the charging lien. Satisfaction of Judgment
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The satisfaction of Judgment in favor of the client does not by itself extinguish the charging lien. The satisfaction may only extinguish the lien when there has been a waiver of the right thereto either by the attorney’s active conduct or by his passive omission.
Enforcement • The lien may be enforced, upon proper motion, by execution. • It may be enforced against the client who, for receiving the proceeds of the judgment without paying the services of his lawyer, holds so much thereof in trust of the lawyer. • It may also be enforced against the judgment debtor who, for disregarding the charging lien properly served on him, becomes liable to the extent of the lawyers claim.
CHAPTER XV LIABILITIES OF ATTORNEY A. LIABILITY FOR DAMAGES Degree of care required -‐ degree of vigilance and care expected of a good father of a family or such degree of care and ordinary diligence as any member of the bar similarly situated is expected to exercise Civil liability -‐ may recover damages from atty if client is prejudiced by the atty’s negligence or misconduct -‐ atty not liable for mere error of judgment unless such error or misconduct is gross or patent -‐ may become civilly, criminally and administratively liable if he
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fails to return client’s money or property upon demand, such failure gives rise to the presumption that he misappropriated the same third party cannot file counterclaim against the atty because the atty is not a party litigant in a case except if there is fraudulent conspiracy between him and his client, the judge or some other person which frustrate the administration of justice
Libellous words in pleadings; privileged communication -‐ generally lawyers are exempted from liability for libel or slander for defamatory words used in the course of judicial proceedings provided such statements are relevant or material to the cause at hand -‐ the doctrine of privileged communication allows lawyers to speak their minds freely and exercise their functions without incurring the risk of criminal prosecution -‐ matter alleged must be legitimately related or so pertinent to the subject of the controversy -‐ privilege does not cover irrelevant matter that is libellous Liability for costs of suit -‐ may be held liable for costs if atty insists on the client’s patently unmeritorious case or interposed appeal merely to delay litigation B. CRIMINAL LIABILITY Two acts penalized:
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
a. causing prejudice to client through malicious breach of professional duty or inexcusable negligence or ignorance b. revealing client’s secrets learned in the lawyer’s professional capacity -‐ “malicious” implies deliberate intent or sinister design on the part of the lawyer -‐ “inexcusable” signifies manifest injustice which cannot be explained by a reasonable interpretation -‐ lawyer’s guilt must be established beyond reasonable doubt to hold him criminally liable Other acts which may result in criminal liability: -‐ representing adverse interests -‐ using or introducing false evidence -‐ misappropriating client’s funds (estafa) C. CONTEMPT OF COURT Nature and purpose -‐ power to punish for contempt is inherent in all courts and is essential in the observance of order in judicial proceedings and to the enforcement of judgments, orders and writs -‐ should be exercised on the preservative and not on the vindictive principle, and on the corrective rather than retaliatory idea of punishment Kinds of contempt: -‐ direct or indirect -‐ criminal or civil o Direct-‐ punished summarily and consists of misbehaviour in the presence or so near the
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court or judge as to interrupt proceedings; no formal charge required Indirect or constructive-‐ committed away from the court involving disobedience of or resistance to a lawful writ, process, order or command or tending to belittle, degrade, obstruct or embarrass the court; requires filing of a formal charge in writing and an opportunity for person to be heard Civil – failure to do something ordered by the court which is for the benefit of one party Criminal – consists of any conduct directed against the authority or dignity f the court
Acts constituting contempt -‐ misbehaviour in the performance of duties -‐ advising client to commit contempt -‐ disobedience to an order of the court -‐ publication tending to impede or embarrass the court constitutes criminal contempt -‐ misleading the court by making false allegation or introducing false evidence -‐ unauthorized practice of law -‐ unlawful retention of client’s funds RULE 71 CONTEMPT Section 1. Direct contempt punished summarily. A person guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo proceedings before the same, including disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so, may be summarily adjudged in contempt by such court and punished by a fine not exceeding two thousand pesos or imprisonment not exceeding ten (10) days, or both, if it be a Regional Trial Court or a court of equivalent or higher rank, or by a fine not exceeding two hundred pesos or imprisonment not exceeding one (1) day, or both, if it be a lower court. Sec. 2. Remedy therefrom. The person adjudged in direct contempt by any court may not appeal therefrom, but may avail himself of the remedies of certiorari or prohibition. The execution of the judgment shall be suspended pending resolution of such petition, provided such person files a bond fixed by the court which rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be decided against him. Sec. 3. Indirect contempt to be punished after charge and hearing. After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt: (a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; (b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; (c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule; (d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice;
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19 (e) Assuming to be an attorney or an officer of a court, and acting as such without authority; (f) Failure to obey a subpoena duly served; (g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or from holding him in custody pending such proceedings. Sec. 4. How proceedings commenced. Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt. In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision. Sec. 5. Where charge to be filed. Where the charge for indirect contempt has been committed against a Regional Trial Court or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filed with such court. Where such contempt has been committed against a lower court, the charge may be filed with the Regional Trial Court of the place in which the lower court is sitting; but the proceedings may also be instituted in such lower court subject to appeal to the Regional Trial Court of such place in the same manner as provided in section 2 of this Rule. Sec. 6. Hearing; release on bail. If the hearing is not ordered to be had forthwith, the respondent may be released from custody upon filing a bond, in an amount fixed by the court, for his appearance at the hearing of the charge. On the day set therefor, the court shall proceed to investigate the charge and consider such comment, testimony or defense as the respondent may make or offer.
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo Sec. 7. Punishment for indirect contempt. If the respondent is adjudged guilty of indirect contempt committed against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by a fine not exceeding thirty thousand pesos or imprisonment not exceeding six (6) months, or both. If he is adjudged guilty of contempt committed against a lower court, he may be punished by a fine not exceeding five thousand pesos or imprisonment not exceeding one (1) month, or both. If the contempt consists in the violation of a writ of injunction, temporary restraining order or status quo order, he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved. The writ of execution, as in ordinary civil actions, shall issue for the enforcement of a judgment imposing a fine unless the court otherwise provides. Sec. 8. Imprisonment until order obeyed. When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. Sec. 9. Proceeding when party released on bail fails to answer. When a respondent released on bail fails to appear on the day fixed for the hearing, the court may issue another order of arrest or may order the bond for his appearance to be forfeited and confiscated, or both; and, if the bond be proceeded against, the measure of damages shall be the extent of the loss or injury sustained by the aggrieved party by reason of the misconduct for which the contempt charge was prosecuted, with the costs of the proceedings, and such recovery shall be for the benefit of the party injured. If there is no aggrieved party, the bond shall be liable and disposed of as in criminal cases. Sec. 10. Court may release respondent. The court which issued the order imprisoning a person for contempt may discharge him from imprisonment when it appears that public interest will not be prejudiced by his release. Sec. 11. Review of judgment or final order; bond for stay. The judgment or final order of a court in a case of indirect contempt may be appealed to the proper court as in criminal cases. But execution of the judgment or final order shall not be suspended
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Legal and Judicial Ethics Reviewer Chap 8 to Chap 19 until a bond is filed by the person adjudged in contempt, in an amount fixed by the court from which the appeal is taken, conditioned that if the appeal be decided against him he will abide by and perform the judgment or final order. Sec.12. Contempt against quasi-‐judicial entities. Unless otherwise provided by law, this Rule shall apply to contempt committed against persons, entities, bodies or agencies exercising quasi-‐ judicial functions, or shall have suppletory effect to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt. The Regional Trial Court of the place wherein the contempt has been committed shall have jurisdiction over such charges as may be filed therefor.
CHAPTER XVI SUSPENSION AND DISBARMENT Generally Practice of law is a privilege burdened with conditions: -‐ adherence to rigid standards of mental fitness -‐ maintenance of highest degree of morality -‐ faithful compliance with rules of the legal profession -‐ regular payment of IBP fees Ø any breach of this makes him unworthy of the trust and confidence the courts and clients repose in him Ø misconduct justifies disciplinary action against him or withdrawal of the privilege to practice law Authority to discipline -‐ Supreme Court has the ultimate disciplinary power over attys -‐ authority stems from its constitutional prerogative to regulate the practice of law and the admission of persons to engage therein -‐ incidental to the proper administration of justice and
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essential to an orderly discharge of its judicial functions power to discipline must not be exercised in an arbitrary or despotic manner; must exercise sound and just judicial discretion it is not only the courts duty to discipline those guilty but also to protect the reputation of those maliciously or frivolously charged by summarily dismissing an unfounded complaint CA and RTC may also exercise disciplinary power over attys appearing before them but can impose suspension or a lesser sanction after giving the atty the opportunity to be heard on reasonable notice; they cannot disbar a lawyer but may recommend such to the SC
Purpose of disciplinary proceedings -‐ to make sure that lawyers are competent, honourable and reliable -‐ deter other lawyers from similar misconduct -‐ safeguard the administration of justice -‐ preserve purity of legal profession by removing those who are unworthy -‐ protect the court and the public from misbehaviour of its officers Administrative cases against lawyers a class of their own -‐ such cases are distinct from and may proceed independently of civil and criminal cases -‐ a finding of liability in a criminal case will not necessarily result in liability in an administrative case -‐ neither will a favourable disposition in a civil case absolve the lawyer from administrative liability
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burden of proof in these cases are different; in criminal – proof beyond reasonable doubt, in administrative – clearly preponderant evidence no prejudicial question in these cases “Disbarment proceedings are undertaken solely for public welfare and the sole question for determination is whether a member of a bar is fit to be allowed the privilege or not. The complainant or the person who called the attention of the court is in no sense a party, and generally has no interest in the outcome except as all good citizens may have in the proper administration of justice.”
B. GROUNDS FOR DISCIPLINE -‐ grounds for disbarment or suspension consist of acts of misconduct committed BEFORE and AFTER admission to the bar o Requisites that must concur before lawyer may be suspended of disbarred for acts commited BEFORE admission to practice: 1. act imputed must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree 2. act must established by a clearly preponderant evidence o Examples: cheating in the bar exams, securing an unauthorized reevaluation of his bar exam answers -‐ grounds enumerated are not exclusive because they do not constitute a limitation on the
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power of the SC to suspend or disbar lawyers Rule 138 of the Rules of Court Sec. 27. Attorneys removed or suspended by Supreme Court on what grounds. -‐ A member of the bar may be removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a wilfull disobedience of any lawful order of a superior court, or for corruptly or wilfully appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.
Misconduct committed outside Philippine jurisdiction -‐ may be suspended or disbarred in this country if the act committed is also a ground for disciplinary action under Philippine law -‐ judgment of foreign court merely constitutes prima facie evidence of unethical acts of a lawyer *Read Velez vs. De Vera p. 492 C. BREACH OF DUTIES TO COURT Acts constituting such breach: -‐ obstruction of justice and abuse of the legal process o advising client to escape from prison
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asking client to plead guilty to crime he did not commit o instructing witness not to appear in court o prosecuting clearly frivolous cases on appeal misleading the court o knowingly making false allegations o misquoting texts in a document o suppressing material and vital facts o failing to inform courts of any subsequent developments in the case which may render case moot and academic o attributing to a judge a statement which he did not make o altering factual findings o asserting facts which he merely expects or hopes to accomplish forum shopping o constitutes direct contempt and makes atty administratively liable filing false charges o violation of lawyer’s oath o filing a groundless charge against a judge despite admonition by the SC violates Canons 10-‐12 o to warrant disciplinary action it must be shown that: § charges were false and the atty knows them to be so § atty still filed the case despite knowing such § there is malice or bad faith o
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introducing false evidence o testifying falsely o introducing false document Requisites: § evidence must be spurious and lawyer knows such infirmity § despite such knowledge atty presents it to court o presenting a coached witness to give false testimony o any such act require discipline irrespective of the materiality or immateriality of the untruthful statement o Lawyer owes entire devotion to his client but not at the expense of truth because his first duty is not to the client but to the administration of justice. o lack of intent to deceive in the presentation of the false evidence will still subject atty to liability for failure to exercise care and prevent confusion and delay in the disposition of the case Blackmail – extortion of money from a person by threats of accusation or exposure or opposition in the public prints o Violation of Canon 19 and rule 19.01 of the Code of Professional Responsibility CANON 19 -‐ A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF THE LAW.Rule 19.01 -‐ A lawyer shall employ only fair and honest means to attain the lawful objectives of his
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client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding.
wilfully disobeying court orders and disrespect to courts o “wilfull” conveys the idea of a flagrant misconduct such as would indicate a disposition on the part of a lawyer so refractory in its character as to affect his qualification and standing for the further exercise of his office as an atty using vicious and disrespectful language continuing practice even after suspension
D. BREACH OF DUTIES TO CLIENT Acts constituting breach of duties to client: -‐ negligence in the performance of duties so gross in character and causes prejudice to client o violates canon 18 which requires lawyer to serve with competence and diligence o ignorance of the law is a ground for discipline but not for an honest mistake or error o pressure and large volume of work in not an excuse *Read Jardin vs. Villar, Jr. p. 524 -‐ employment of unlawful means -‐ defrauding client -‐ representing adverse interests and revealing client’s secrets (takte paulit ulit na to alam nyo na yan!) -‐ purchasing client’s property in
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for the client, there is pending litigation and the client’s property or interest is involved therein o good faith is not a defense but may mitigate liability failing to account or misappropriating client’s property collecting unreasonable fees o applying client’s money to pay his unreasonable claim for work done without consent o refusing to return what he collected as payment for services which he did not render acting without authority o may be disciplined for compromising, settling, dismissing, waiving or disposing of a client’s cause, property or interest without prior or subsequent authority from the client wilfully appearing without being retained
E. BREACH OF DUTIES TO THE BAR Generally -‐ unethical conduct is that which violates the rules or ethical code of the legal profession or which is unbecoming of a member of the bar Acts that may be disciplined: -‐ defaming fellow lawyers -‐ communicating with adverse party (violates Canon 9) -‐ encroaching upon business of another -‐ soliciting business -‐ advertising
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cooperating in the illegal practice of law o forms law partnership with a layman o notarizes oath of office as a lawyer of a person who failed in the bar exams o permits non-‐lawyer to sign pleading on his behalf non-‐payment of IBP dues
-‐ F. OTHER GROUNDS FOR DISCIPLINE Non-‐professional misconduct, generally -‐ lawyer may not be suspended or disbarred and the court may not ordinarily assume jurisdiction for misconduct in his non-‐ professional or private capacity unless the misconduct is so gross a character as to show him to be morally unfit for the office and unworthy of the privilege which his license and the law confer on him -‐ lawyer must always be a person of good moral character Gross immorality Immoral conduct is that conduct which is so wilful, flagrant or shameless as to show indifference to the opinion of good and responsible members of the community. Grossly immoral conduct was found in the following cases: 1. Living adulterously with another woman after abandoning legal wife 2. having carnal knowledge of a woman under promise of marriage and urging her to have an abortion and thereafter marrying another woman 3. misrepresenting that he was single when in fact he was married and succeeding in having intercourse with her and thereafter faking a marriage between the woman and his son
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
4. for contracting second marriage while first marriage was still subsisting 5. carrying an illicit affair with a married woman 6. for raping neighbor’s wife Conviction of a crime involving moral turpitude Moral turpitude means anything which is done contrary to justice, honesty, modesty or good morals or any act of vileness or depravity in the private and social duties that a man owes his fellowmen or to society, contrary to the accepted rule of right and duty between man and man. -‐ in general, all crimes which fraud or deceit is an element or those inherently contrary to the riles of right conduct involve moral turpitude o estafa, swindling, falsification of public document, smuggling, bribery, murder, bigamy, abduction, seduction, concubinage and violation of BP 22 o conviction for homicide may or may not involve moral turpitude depending on the facts of the case (read Soriano vs. Dizon p.550) Other acts: -‐ promoting to violate or violating penal laws -‐ misconduct as public officer -‐ misconduct as notary public o notarizing document permitting husband to take a concubine o authorizing each spouse to remarry o notarizing in the absence of the affiant
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for not disclosing that the person who signed is an authorized agent o notarizing a fictitious document not paying a just debt and issuing bouncing checks
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CHAPTER XVII PROCEDURE FOR DISCIPLINE AND REINSTATEMENT -‐
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Suspension or disbarment is sometimes described as a punishment, as a necessary consequence of its primary object, which is not so much to punish the individual atty himself as to safeguard the administration of justice by protecting the court and the public from the misconduct of officers and to remove those persons who are unfit to continue discharging the trust reposed in them as members of the law. an investigation by the court into the misconduct of its officer or an examination of his character desistance or withdrawal of complainant does not exonerate respondent a complaint for disbarment or suspension is imprescriptible
Proceedings are confidential until its final determination. -‐ Three fold purpose: o to enable the court to make its investigation free from any extraneous influence or interference o to protect the personal and professional reputation of attys from baseless charges
deter the press from publishing charges or proceedings confidentiality may be WAIVED by the lawyer o
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Who and how instituted -‐ by the SC motu proprio -‐ by the IBP -‐ upon a verified complaint of any person -‐ All charges against justices of CA and Sandiganbayan and judges of CTA and lower courts shall be filed with the SC, IBP has no jurisdiction -‐ must allege SPECIFIC facts which constitute the particular breach or violation of law or the Code of professional responsibility -‐ After filing of complaint: o IBP grievance investigator or if required a panel of 3 investigators will ascertain if complaint is meritorious o if meritorious, copy to be served upon respondent requiring him to answer within 15 days from date of service o answer shall be verified o original and 5 copies filed with the investigator with proof of service on complainant or his counsel o upon joinder of issues or failure of respondent to answer, investigator shall proceed with the investigation of the case; investigation shall terminate within 3 months unless extended for good cause by the Board upon prior application
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ex parte investigation is allowed only if respondent fails appear despite notice o if not meritorious, may be dismissed by the Board of Governors and a copy of the resolution of dismissal furnished the complainant and the SC o SC may review the case motu proprio or upon timely appeal of 15 days from notice Report of investigator and decision of the Board o not later than 30 days from the termination of the investigation, a report containing the findings of facts and recommendations shall be submitted to the IBP Board together with stenographic notes, transcript and all the evidence presented § he may recommend exoneration, admonition, reprimand, fined, suspension or disbarment as the evidence may warrant o the decision of the IBP Board shall be in writing and clearly and distinctly state facts and reasons on which it is based o complainant may file motion for reconsideration with the IBP board o Petition for review may be filed with the SC o
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within 15 days from receipt of ruling o if IBP ruling is for suspension or disbarment, it shall be transmitted to the SC for final action. The SC will decide the case either by Division or En Banc in accordance with the following: § Suspension for 1 year or less – Division § more than 1 year – En banc § Fine of 10,000 or less – Division § More than 10,000 – en banc § In case both suspension and fine are involved, En banc if suspension is more than 1 year and fine exceeds 10,000 § In case of 2 or more suspensions of the lawyer, service of the same is successive and not simultaneous. o Maronilla vs. Jorda The decision of the IBP only takes effect upon its affirmation or modification by the SC because the inherent power to discipline members of the Bar belongs to the SC and not the IBP. It is a matter of routine that decisions of the IBP are automatically elevated to the
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SC for review and there is no need for a petition to be filed within 15 days for the SC to acquire jurisdiction over the matter. -‐ there must be clear, convincing and satisfactory proof and he who asserts must prove Proceedings in the SC and other courts -‐ may refer investigation to the SC or to any officer of the court or judge of lower court -‐ pending final resolution, SC may suspend the respondent from the practice of law -‐ CA or RTC may suspend an atty after due notice and opportunity to be heard, until further action by the SC -‐ failure of atty to submit the required explanation constitutes waiver of the right to be heard -‐ res ipsa loquitur applies; trial type hearing is not necessary if facts of record sufficiently provide basis for determination of the liability Defenses -‐ should not resort to technicalities when the facts are clear and undisputed -‐ deny complainant’s claim only if in good faith -‐ should accept misdeeds and ask for leniency to mitigate liability Executive pardon -‐ absolute pardon is a bar to a proceeding for disbarment based solely on the commission of the offense because lawyer is considered as innocent and guiltless, but if disbarment is not based upon the commission of the pardoned offense, then disciplinary action will still
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prosper against the atty because the pardon relieves him of penal consequences but does not restore his character if absolute pardon granted subsequent to disbarment, reinstatement not automatic and depends upon the circumstances of the case and discretion of the court conditional pardon does not operate as bar to disbarment proceedings
Modifying circumstances -‐ Mitigating: o good faith o lack of material damage o desistance of complainant o youth and inexperience o error in judgment o honest and efficient service in various govt positions o being first offense o admitting mistake and expressing apologies o explanation and plea of forgiveness o clean record in the past -‐ Aggravating: o abuse of authority o having sex with the lawyer’s relative o making marriage a mockery o was previously disciplined o defrauding the govt Dismissal of the case -‐ in the absence of clearly preponderant evidence, it should be dismissed -‐ any doubt should be resolved in atty’s favour
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death of the atty during the pendency of the case renders the action moot and academic, but the court may still resolve to clear the atty’s name
Disciplinary sanctions; basic considerations -‐ discretionary upon the court -‐ exercised on the preservative and not on the vindictive principle -‐ Censure or reprimand is usually meted out for an isolated act of misconduct of lesser nature. -‐ Disbarment is a juridical act of withdrawing the privilege to practice law, is the most severe sanction. -‐ Suspension is correctional in nature and may be for a definite or indefinite period. Suspension for an indefinite period is actually a qualified disbarment, meted out for a specific purpose desired. -‐ Fine is a sort of warning that a lawyer should be more careful in the discharge of his duties. -‐ Admonition is a gentle and friendly reproof, a mild rebuke, a warning. Effects of suspension or disbarment -‐ self-‐executory but lawyer may still appear to defend himself because this is not considered as practice of law but an exercise of a right -‐ may result in dismissal from govt office which requires membership in the bar as an indispensable qualification -‐ judgment always subject to change or modification of the court regardless of period that has lapsed -‐ legislative and executive branch cannot modify the sanction meted out by the court
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
Reinstatement -‐ SC has exclusive authority to reinstate disbarred or indefinitely suspended lawyer -‐ such reinstatement does not become final as it may be reopened or reconsidered by the SC upon proper petition and satisfactory evidence -‐ rests on sound discretion of the court -‐ in a petition for reinstatement, the petitioner must allege and prove that he is of such good moral character acquired through positive efforts and moral reformation as to be fit and proper person to practice law, and that he possesses such mental qualifications as to enable him to discharge his duties properly -‐ quantum necessary for reinstatement is same as that for admission -‐ the court in reinstating the lawyer may impose certain conditions on his re-‐admission
CHAPTER XVIII NEW CODE OF JUDICIAL CONDUCT Preliminary Administrative Order No. 162 -‐ issued by the DOJ on Aug. 1, 1946 -‐ promulgated the canons of judicial ethics 1987 Constitution -‐ vested in the Supreme Court the administrative supervision over all judges. -‐ The Supreme Court adopted the Code of Judicial Conduct (Effective: Oct. 20, 1989)
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Later replaced by the New Code of Judicial Conduct for the Philippine Judiciary which took effect on June 1, 2004.
New Code of Judicial Conduct -‐ See Agpalo book for the codal provisions of the Canons DEFINITIONS Court Staff -‐ includes the personal staff of the judge including the law clerks. Judge -‐ any person exercising judicial power, however designated. Judge’s family -‐ includes judge’s spouse, son, daughter, son-‐in-‐law, daughter-‐in-‐law, and any other relative by consanguinity or affinity within the sixth civil degree, or person who is a companion or employee of the judge and who lives in the judge’s household. • In case of deficiency or absence of specific provisions in this New Code, the Canons of Judicial Ethics and the Code of Judicial conduct shall be applicable in a suppletory character. A. UPHOLDING THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY Generally -‐ The preamble of the Code of Judicial Conduct capsulizes what the judiciary should be. -‐ The 5 canons and implementing rules of the Code require what judges ought and ought not to do in their official and private conduct, so as to have an honorable, competent and independent judiciary and enable them to achieve its ultimate aim – to promote justice by administering it fairly, impartially, and promptly.
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Admnistration of justice us a joint responsibility of the judge and the lawyer. Their relations should be based on mutual respect and on deep appreciation by one of the duties of the other. Upon his assumption to office, a judge becomes a visible representation of the law and more importantly, of justice.
Who is a judge -‐ employed to designate a public officer selected to preside and to administer law in a court of justice. -‐ He bears himself in the community with friends but without famiiars. -‐ He is a symbol of rectitude and propriety, comporting himself in a manner that will receive no doubt whatsoever about his honesty. -‐ He is a public officer who, by virtue of his office, is clothed with judicial authority to decide litigated questions according to law. What a judge should be, generally -‐ a judge should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, fearless of public clamor, and regardless of private influence, should administer justice according to law -‐ He should not allow outside matter or his private interests interfere with the prompt and proper performance of his office. -‐ Judges are expected to keep abreast of all laws and prevailing jurisprudence. -‐ They should exhibit more than just cursory acquaintance with
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the statutes and procedural rules. They must know the laws and apply them properly and in good faith. He must be conservant with basic legal principles and well-‐settled and authoritative doctrines. With regard to his fellow judges, they owe each other utmost respect He is the head of the office (his sala) tasked with supervising the employees who by their functions are to assist him in the performance of his judicial duties. He should organize his court with a view to prompt and convenient dispatch of its business and should not tolerate abuses and neglect of clerks, sheriffs, or other assistants. The conduct and behavior of everyone connected with the dispensation of justice should be circumscribed with the heavy burden of responsibility. Implicit limits include accepted legal values and the explicit limits are substantive and procedural rules of law.
B. AVOIDING IMPROPRIETY OR APPEARANCE THEREOF A judge should be free from impropriety and appearane thereof (Canon 2) -‐ Judges may conduct themselves in such manner that they give no ground for reproach. They should maintain high ethical principles and a sense of propriety. -‐ A Justice of the CA did not live up to these expectations when, through indiscretions, he had been mentioned in the newspapers of having lawyered
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for a suspected drug queen and interfered with her prosecution. A judge should not only be impartial, independent and honest but should also be perceived as such. Fraternizing with litigants tarnishes his appearance.
A judge should exhibit the cold neutrality of impartial judge -‐ While a judge should possess proficiency in law in order that he can competently construe and enforce the law, it is more important that he should act and behave in such a manner that the parties before him should have confidence in his impartiality. -‐ He should, in the performane of his functions, avoid side remarks, hasty conclusions, loose statements or gratuitous utterances that could form the basis for erroneous impressions in the mind of those who hear them and who may conclude that he is prejudging the case or the issues that come before him in the exercise of his jurisdiction. -‐ He should refrain from doing essentially police work that may involve prosecution of crimes which he may have to hear and decide. -‐ In a special proceeding, the judge whose order is under attack in the CA is merely a nominal party. Judge’s demeanor in social functions -‐ A judge should still continue to mingle in social intercourse, and that he should not discontinue his interest in or appearance at meetings of members of the bar. He should, however, in pending or prospective litigation before him, be scrupulously careful to
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avoid such action as may reasonably tend to waken the suspicion that his social or business relations or friendships constitute an element in determining his judicial action. A judge who yields to the strength of the “spirits” and acts like an uninhibited drunkard in a public place demeans his judicial office.
C. PERFORMANCE OF DUTIES Generally -‐ A judge should be attentive, impartial and, since he is to administer the law and apply it to the facts, he should be studious of the principles of law, knowledgeable in procedural rules and diligent in endeavoring to ascertain the fatcs. -‐ He mut also decide cases in a manner free from any suspicion as to fairness and impartiality and as to his integrity. -‐ His language, both written and spoken, must be guarded and measured, lest the best of intentions be misconstrued. A judge should be a man of learning -‐ A judge owes it to the public and to the legal profession to know the very law he is supposed to apply to a given controversy. -‐ He should be studious of the principles of law and diligent endeavoring to ascertain the facts. -‐ The learning process in law does not stop upon graduation from college and admission to the Bar. It is a continuing process. A judge should be a visible representation of law and justice
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A judge must be the first to abide the law and weave an example for the others to follow. He should, therefore, be studiously careful himself and avoid even the slightest infraction of the law, lest it be a demoralizing example to others. -‐ A judge who solemnizes marriage without a marriage license deserves administrative sanction. -‐ A judge who is gulty of sexual harassment or unjust vexation is unbecoming of a judge. Fitting dignity and decorum -‐ This norm of conduct demands that a judge should show no shortness of temper which merely detracts from the equanimity and judiciousness that should be the constant marks of a dispenser of justice. -‐ A judge should not permit the taking of pictures in the court room, during sessions of the court or recesses in between sessions, and the broadcasting or televising of court proceedings for the detracts from the essential dignity of the proceedings, distract the witness, degrade the court, and create misconceptions with respect thereto in the mind of the public. Attitude toward lawyers, litigants or witnesses -‐ A judge should be courteous to counsel, especially to those who are young and inexperienced and also to all those others appearing or concerned in the administration of justice in the court. -‐ He should be considerate of witnesses and others in attendance upon his court.
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He should not interrupt counsel in their arguments except to clarify his mind as to their positions. He may utilize his opportunities to criticize and correct unprofessional conduct of attorneys, brought to his attention, but he may not do so in an insulting manner.
Judge should not resort to intemperate language -‐ High-‐strung and belligerent behavior has no place in government service where government personnel must act with self-‐restraint and civility at all times. -‐ He should refrain from conduct that demeans his office and remember that courtesy begets courtesy. -‐ In cases where a judge is required to file his comment by the Supreme Court, he should not employ derogatory or disrespect language to emphasize a point. Questioning witnesses -‐ A judge may properly intervene in the presentation of evidence to expedite and prevent unnecessary waste of time and clarify obscure and incomplete details after the witness has given direct testimony or in the course thereof. -‐ But the judge should limit himself to asking clarificatory questions and the right should be sparingly and judiciously used, for the rule is that the court should stay out of it as much as possible. -‐ A judge may examine or cross-‐ examine a witness.
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While ex parte hearing of applications for provisional remedies should be discouraged, a judge may act upon such application only where the necessity or quick action is clearly shwon and only when the judge has endeavored to counteract the effect the ansence of a counsel.
Undue interference in questioning witnesses -‐ What is proscribed is undue interference by proppunding questions to the witnesses which will have the effect of or will tend to build or bolster the case for one of the parties. Compulsory disqualification of a judge -‐ Sec 1, Rule 137 of the Rules of Court: “No judge or judicial officer shall sit in every case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor, or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor, administrator, guardian, trustee, or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all the parties in interest, signed by them and entered upon the record.” -‐ “A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above.” -‐ His continuing with the case, without the written consent of all
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the parties, has the following effects: o The judge is deprived of his authority to continue to hear and decide the case. It does not, however, divest the court of jurisdiction. o A judge who continues to hear a case in which he is disqualified under any of those enumerated grounds may be held administratively liable therefor, except where all the parties concerned have given their consent thereto. Voluntary disqualification -‐ In 1962, the Supreme Court allowed judges to voluntarily inhibit themselves to sit in a case because of being related to the lawyer of one of the litigants, and stated that the law on compulsory disqualification does not preclude cases of voluntary inhibition based on good, sound or ethical grounds. -‐ A judge may not be legally prohibited from itting in a litigation. But when suggestion is made of record that he might be induced to act in favor of one party or with bias or prejudice against a litigant arising of circumstances reasonably capable of inciting such state of mind, he should conduct a careful self-‐examination. -‐ However, his decision to disqualify himself is not conclusive, and his competency may be determined on application for mandamus to compel him to act.
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Bias and lack of objectivity as a ground for disqualification of a judge has to be proved. The mere filing of an administrative case against a judge is not a ground for disqualifying him from hearing the case. The fact alone that the judge is a next-‐door neighbor of the complainant in a case is not a ground for his mandatory or voluntary disqualification to sit on the case.
Procedure for disqualification -‐ Sec 2 of Rule 137 of the Rules of Court: “If it be claimed that an official is disqualified from sitting as above provided, the party objecting to his competency may, in writing, file with the official his objection, stating the grounds therefor, and the official shall thereupon proceed with the trial, or withdraw therefrom in accordance with his determination of the question of his disqualification. His decision shall be forthwith made in writing and filed with the other papers in the case, but no appeal or stay shall be allowed from, or by means of, his decision in favor of his own competency, until final judgment in tha case.” -‐ The provision applies to both civil and criminal cases. Prompt disposition of cases -‐ A judge should organize his court with a view to prompt and convenient dispatch of business, be punctual in the performance of his duties, exhibit an industry and application commensurate with the duties imposed upon him and be prompt in disposing
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all matters submitted to him, especially those cases which the law requires to be expeditiously heard and decided. Read Art. VIII, Sec. 15 of the 1987 Constitution If for some valid reason a judge cannot decide a case within the period, he must request the Supreme Court for an extension of time to resolve it. The requirement that judges should execute certificates of service stating that they have no pending cases which have not been resolved after 90 days is a pre-‐requisite to paying them their salary. A judge who fails to decide cases within the required period and continues to collect his salaries upon his certification that he has no pending matter to resolve beyond the required period, transgresses the constitutional right of the people to a speedy disposition of cases. It also warrants the imposition of administrative sanction against him. What the Constitution prohibits are unreasonable delays, arbitrary and oppressive delays which render rights nugatory. The duty to dispose of the court business promptly and to decide cases withing the prescribed periods should be consistent with a faithful compliance with the set of procedures laid down therefor.
Adjudication of cases -‐ A judge should endeavor diligently to ascertain the facts and the applicable law unswayed by partisan or personal interests, public opinion or fear of criticism.
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If he feels that a law or doctrine enunciated by the Supreme Court is against his way of reasoning or his conscience, he may state his personal opinion on the matter but should decide the case in accordance with the law or doctrine and not with his personal views. Once the Supreme Court has spoken, all other courts must be guided by its decision. A judge who disregards a temporary restraining order of the Supreme Court is not only ignorant of the rule but, in a larger sense, commits abuse of authority, misconduct and conduct prejudicial to the proper administration of justice. A judge should adopt the usual and traditional method of doing justice which requires that he should hear both sides with patience and understanding before he renders a decision. If a judge’s order is challenged in an appellate court, he does not have to file any answer or take active part in the proceeding unless pexpressly directed by the appellate court. He is merely a nominal party to the case.
Dispensation of criminal justice -‐ The judge’s action must not impair the substantial rights of the State and the offended party to due process of law, to enable the guilty to escape unpunished, just as he should not close his eyes to weak evidence to bring about the conviction of the innocent. -‐ “It ia better that ten guilty persons escape than one innocent suffer.”
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Rendition of judgment -‐ In disposing of controverted cases, a judge should indicate the reasons for his action in opinions showing that he has not disregarded or overlooked serious arguments of counsel. -‐ He should state clearly the facts and the law on which the judgment is based. -‐ In formulating the dispositive portion of the decision, he should spell out clearly, distinctly and unequivocally the adjudication of the rights and obligations of the parties and the disposition made as well as the directives and instructions given, leaving absolutely no room for dispute, debate, or interpretation thereof, because it is this portion that is to be executed once the decision becomes final. Judgment -‐ the decision or sentence of the law given by a court or othre tribunal as the result of proceedings instituted therein and based on evidence presented. -‐ It is a judicial act which settles the issues, fixes the rights and liabilities of the parties, and determines the proceedinf, and is regarded as the sentence of the law pronounced by the court on the action or question before it. -‐ A judgment or decision that does not comply with the Constitutional requirements of stating the facts and law on which it is based may violate the right of the affected party to due process and to be informed of how the case was decided. -‐ The purpose of the requirement is to inform the party of the reason/s for the decision so that if any of them appeals, he can point out to the appellate court
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
the finding of facts or the rulings on points of law with which he disagrees. More than that, the requirement is an assurance to the parties that, in reaching judgment, the judge did so through the processes of legal reasoning. Promulgation -‐ signifies that on the date the decision was made, judge/s who signed the decision continued to support it. -‐ If at the time of the promulgation, a judge or a member of the collegiate court has already vacated his office, his vote is automatically withdrawn. -‐ If this rule is not followed, the decision is not valid. D. ACTIVITIES OTHER THAN DISCHARGE OF JUDICIAL FUNCTIONS Personal or private relations, generally -‐ A judge should not accept inconsistent duties, nor incur obligations, pecuniary or otherwise, which will in any way interfere with his devotion to the expeditious and proper administration of his official functions. -‐ He should avoid giving ground for any reasonable suspicion that he is utilizing the power or prestige of his office to enhance his personal self-‐interest or to persuade to coerce others to patronize or contribute, either to the success of private business ventures, or to charitable enterprises. -‐ He should not, in any event, engage in provate business without the written permission of the Supreme Court. -‐ He should not willfully refuse to pay his debt.
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Judge should not practice law -‐ Sec. 35, Rule 138 of the Rules of Court prohibits a judge from engaging in provate practice as a member of the bar or giving professional advice to clients. -‐ The prohibitopn is based on sound reasons of public policy. -‐ The rights, duties, privileges and functions of the office of an attorney-‐at-‐law are so inherently incompatible with the high judicial functions, duties, powers, discretions and privileges of a judge. -‐ A judge should not permit a law firm, of which he was formerly an active member, to continue to carry his name in the firm name because that might create an impression that the firm possesses an improper influence with the judge and in consequence, tend to impel those in need of legal services in connection with matters before him to employ the law firm. -‐ As a general rule, the appointment or election of an attorney to a government office disqualifies him from engaging in the private practice of law. The disqualification is intended to preserve the public trust in a public office, avoid conflict of interests and assure the people of impartiality. Personal investments -‐ A judge should abstain from making personal investments in enterprises which are apt to beinvolved in litigation in his court, and after accession to the bench, he should not retain such investments previously made, longer than a period sufficient to
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enable him to dispose of them without serious loss. A judge violates the rules by posting advertisements for the restaurant personnel on the court bulletin board, using his court address to receive applications for employment in the family business, and screening applications in his court, as they constitute involvement of private business. This violation merits dismissal of the judge from the service. He violates the canon where he lends money at unconscionable interests and files suit for collection at the place where he is a judge, to enable him to take advantage of his position. Such action merits a reprimand.
Prohibited acts and transactions -‐ Sec 7 of RA 6713 prohibits public officers from undertaking certain business transactions or doing certain acts which may compromise his position as a public official. This provision also applies to judges. o Financial and material interest – Public officials and employees shall not, directly or indirectlym have any financial or material interest in any transaction requiring the approval of their office. o Outside employment and other activities related thereto – Public officials and employees during their incumbency shall not: § Own, control, manage or accept employment as
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officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise related, supervised or licensed by their office unless expressly allowed by law. § Engage in the private practice of their profession unless authorized by the Constitution or by law, provided that such practice will not conflict or tend to conflict with their official functions or; § Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office. These prohibitions shall continue to apply for 1 year after resignation, retirement, or separation from public office, except in the case of subparagraph (b)(2) above, but the professional concerned cannot practice his profession in connection with any matter before the office he used to be in which case the 1 year prohibition shall likewise apply.
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
Restriction against accepting certain employment -‐ A lawyer shall not, after leaving the government service, accept engagement or employment in connection with any matter in which he had intervened while in said service. -‐ Read PCGG v. Sandiganbayan and Mendoza G.R. Nos. 151800-‐ 12, April 12, 2005. Prohibition against soliciting gifts -‐ A judge should not accept any presents or favors from litigants or from lawyers practicing before him. -‐ Sec. 7(d) of RA 6713: “Public officials and employuees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of money value fron any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office. -‐ The Congress consents to: o The acceptance and retention by a public official or employee of a gift of nominal calue tendered and received as a souvenir or mark of courtesy o The acceptance by a public official or employee of a gift in the nature of a scholarship or fellowship grant or medical treatment o The acceptance by a public official or employee of travel grants or expenses for travel taking place entirely
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outside the Philippines (such as allowances, transportations, food and lodging) of more than nominal value if such acceptance is appropriate or consistent with the interest of the Philippines, and permitted by the head of office, branch or agency to which he belongs. The rules does not intend to restrict or prohibit any educational, scientific or cultural exchange programs subject to national security requirements. A judge violates the above provision when he accepts the free use, for a year, of a car, and his availment for free of battery recharging services of the shop of a litigant who has a pending case before him.
Restriction against using public office to promote private interest -‐ This restriction particularly applies to lawyers in government service, who are allowed by law to engage in private law practiceand to those who, though prohibited from engaging in the practice of law, like judges, have friends, former associates and relatives, who are in the active practice of law. -‐ Since the law does not allow a judge to practice his profession, he should not do so indirectly by being a silent partner in a law firm or by securing a legal business for a friend or former associate in the active practice of law and receiving a share in the attorney’s fees for his efforts. -‐ A public official shall see to it that his private activity does not
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
interfere with the discharge of his official functions. Financial disclosure and divestment -‐ Read Secs. 8 & 9 of RA 6713. o Public officials have an obligation to accomplish and submit declarations under oath their assets, liabilities, net worth and financial business interests including those of their spouses and of unmarried children under 18 years of age living in their households. -‐ The documents shall contain information on the following: o Real property; its improvements, acquisition costs, assessed value and current fair market value o Personal property and acquisition cost o All other assets such as investments, cash on hand or in banks, stocks, bonds and the like o Liabilities o All business interests and financial connections -‐ The documents must be filed: o Within 30 days after assumption of office o On or before April 30 of every year thereafter o Within 30 days after separation from service. o They shall also execute, within 30 days from the date of their assumption of office, the necessary authority in favor of the Ombudsman to obtain from all the appropriate government agencies, including the BIR, such
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documents as may show theirs assets, liabilities, net worth, and also their business interests and financial connections in previous years, including, if possible, the year when they first assumed any office in the Government. Husband and wife who are both public officials or employees may file the required statements jointly or separately. SALN and Disclosure of Business Interests and Financial Connections shall be filed by: o Constitutional and national elective officials with the national office of the Ombudsman o Senators and Congressmen, with the Secretaries of the Senate and the House of Representatives, respectively; Justices, with the Clerk of Court of the Supreme Court; Judges with the Court Administrator; and all national executive officials with the Office of the President o Regional and local officials and employees, with the Deputy Ombudsman in their respective regions o Officers of the armed forces from the rank of colonel or naval captain, with the Office of the President, and those below said ranks, with the Deputy Ombudsman in their respective regions
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
All other public officials and employees, defined in RA 3019, with the Civil Service Commission. It shall be unlawful for any person to obtain or use any statement for: o Any purpose contrary to morals or public policy o Any commercial purpose other than by news and communication media for dissemination to the general public. A public official or employee shall avoid conflict of interest at all times. When a conflict of interest arises, he shall resign from his position in any private business enterprise within 30 days from his assumption of office and/or divest himself of his shareholdings or interest within 60 days from such assumption. The same rule shall apply where the public official or employee is a partner in a partnership. The requirement of divestment shall not apply to those who serve the Government in an honorary capacity nor to laborers and casual temporary workers. o
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Extra-‐judicial appointments -‐ A judge shall not accept appointment or designation to an agency performing quasi-‐judicial or administrative functions. (Art VIII, Sec 12 of the Constitution) -‐ Quasi-‐judicial – term applied to the actions or discretions of public administrative officers or bodies required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action, and to
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exercise discretion of a judicial nature. Quasi-‐judicial body -‐ organ of government other than a court and other than a legislature which exercises adjudicative power affecting the rights of private persons. A judge’s acceptance of the position will operate to vacate his position as a judge. Administrative functions-‐ those which involve the regulation and control over the conduct and affairs of individuals for their own welfare and the promulgation of rules and regulations to better carry out the policy of the legislature or such as are developed upon the administrative agency by the organic law of its creation.
Prohibition against partisan political activities -‐ The 1987 Constitution provides that “no officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political activity.” -‐ “Any officer or employee in the civil service, except those holding political officers, any officer, employee, or member of the Armed Forces of the Philippines, or any police officer, special forces, home defense forces, barangay self-‐defense units and all other para-‐military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes, in any election campaign or engages in any political activity, except to vote or to preserve public order, if he is a peace officer” shall be
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liable for commission of an election offense. The 1987 Administrative Code exempts from the prohibition a public officer or employee “from expressing his views on current political problems or issues or from mentioning the names of candidates for public office whom he supports.” However, solicitation of votes, such as distributing handbills for a particular candidate, is electioneering proscribed by the Omnibus Election Code. Election campaign or partisan political activity – an act designed to promote the election or defeat of a particular candidate or candidates to a public office. Candidate – any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties. Political offices – those offices which are not connected immediately with the administration of justice, or the execution of mandates of a superior officer – as the President or secretaties or heads of departments in the executive department. They also include national, provincial, city and municipal elective positions.
Municipal Judge acting as notary public -‐ Municipal judges may not engage in notarial work except as notaries public ex-‐officio. -‐ While the Judiciary Act as amended by RA 6031 permitted them to pursue any other occupation or calling after office
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hours, such authorization excluded engaging in the work of a regular notary public. As notaries public ex-‐officio, they may engage only in the notarization of documents connected with the exercise of their official functions. In far-‐flung municipalities which have neither lawyers or notaries public, municipal judges assigned to those municipalities or cicuits may, in their capacity as notaries public ex-‐officio, perform any act within the competence of a regular notary public provided that: o All notarial fees charged be for the account of the Government and turned over to the municipal treasurer o A certification be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit
CHAPTER XIX LIABILITIES OF JUDGES A. IN GENERAL Judges are not liable, generally -‐ The general rule is that a judge is not liable administratively, civilly or criminally when he acts within his legal powers and jurisdiction. -‐ He may not be held liable for every erroneous order or decision he renders. -‐ He may only be held accountable where his error is gross or patent, deliberate and malicious, or is incurred with evident bad faith.
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This judicial immunity rests upon considerations of public policy, its purpose being to free the judge from apprehension of personal consequences to himself and to preserve the integrity and independence of the judiciary. The remedy of the aggrieved party is to elevate the error to the higher court for review and correction. A judge may be held criminally, civilly or administratively liable for malfeasance or misfeasance in office.
B. CIVIL LIABILITY When civilly liable, generally -‐ A judge is not personally liable to one injured in consequence of an act performed withtin the scope of his official authority, and in line of his official duty. -‐ He is not liable for damages for wht he does in th exercise of his judicial functions. -‐ His acts are protected by the presumption of good faith. -‐ He is presumed to have regularly performed his duties. -‐ It is upon him who alleges the contrary that the burden of proof lies Statutory basis of civil liability -‐ The statutory bases of civil liability are the following: o Administrative Code od 1987: He may be held liable only where it is shown that he acted willfully and maliciously and with the express purpose of inflictin injury upon the plaintiff. o Art 27, Civil Code: Any person suffering material
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or moral loss because a public servant or employee refuses or neglects, without just cause to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken. Art 32, Civil Code: A public officer is civilly liable for damages for directly or indirectly obstructing, defeating, violating or in any manner impeding or impairing civil liberties guaranteed by the Constitution.
Liability arising from bad faith -‐ Acts done in bad faith are outside the judge’s scope of authority. -‐ If he exceeds the power conferred on him by law, he cannot shelter himself by the plea that he is a public agent acting under color of his office, and not personally. -‐ Bad faith – imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of sworn duty through some motive or intent or ill-‐will; partakes the nature of fraud. Evident bad faith connotes a manifest deliberate intent to do wrong or cause damage. -‐ There must be an allegation in the complaint and proof that such official has maliciously and in bad faith acted outside the scope of his official authority.
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
Immunity of state from suit, as defense of public official -‐ The state cannot be sued without its consent. -‐ The principle is based on the very essence of sovereignty, and on the practical ground that there can be no legal right as against the authority that makes the law on which the right depends. -‐ A public officer who is sued in connection with the performance of his duties may properly invike the doctrine, when the suit is on its face against a government officer but the case is such that ultimate liability will belong not to the officer but to the government. -‐ The doctrine of state immunity does not apply where the officer has exceeded his authority. Liability for unexplained wealth -‐ Under RA 1379, whenever any public officer or employee has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary and to his other lawful income, said property shall be presumed prima facie to have been unlawfully acquired, and the Solicitor General shall file the petition and prosecute the case (civil action in rem). -‐ RA 3019 takes into account in determining whether there is unxplained wealth the properties in the name of the spouse and dependents, including bank deposits, the acquisition of which cannot be explained satisfactorily; as well as excessive expenditures or ostentatious display of wealth, including frequent travels abroad.
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Where a public officer is sued for unexplianed wealth, his bank deposits as well as those bank deposits held by other persons for him may be inquired into and subpoenaed from the banks, a exception to the bank secrecy rule.
C. CRIMINAL LIABILITIES UNDER THE REVISED PENAL CODE Criminal liability, generally -‐ For the purpose of applying the provisions of the Revised Penal Code, the term public officer is any person who, by direct provisions of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government or shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class. Knowingly rendering unjust judgment -‐ Any judge who shall knowingly render an unjust judgment in any case submitted to him for decision, shall be punished by prision mayor and perpetual and absolute disqualification. -‐ Judge – term employed to designate a public officer selected to preside and to administer the law in a court of justice. -‐ To hold a judge criminally liable for rendering an unjust judgment, it must be shown beyond a reasonable doubt that: o The judgment is unjust or one which is contrary to law or is not supported by the evidence.
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
The judge rendered it with conscious and deliberate intent to do an injustice. Good faith is a deense. There must first be a final and authoritative judicial declaration that the decision or order is indeed unjust. o
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Judgment rendered through negligence -‐ Any judge who, by reason of inexcusable negligence or ignorance, shall render a manifestly unjust judgment in any case submitted to him for decision shall be punished by arresto mayor and temporary special disqualification. -‐ To hold a judge liable, it must be shown that although he has acted without malice, he failed to observe in the performance of his duty, that diligence, prudence and care which the law is entitled to exact in the rendering of any public service. Unjust interlocutory order -‐ A judge who shall knowingly render an unjust interlocutory order or decree shall suffer a penalty of arresto mayor in its minimum period and suspension; but if he shall have acted by reason of inexcusable negligence or ignorance and the interlocutory order or decree be manifestly unjust, the penalty shal be suspension. -‐ Art. 206 of the Revised Penal Code -‐ Interlocutory order – order that is provisional and leaves substantial proceeding to be had in connection with its subject.
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Malicious delay in the administration of justice -‐ The penalty of prision correccional in its minimum period shall be imposed upon any judge guilty of malicious delay in the administration of justice. -‐ The elements are: o There is unreasonable delay in the disposition of the case far beyond the period mandated by law o The judge was actuated with malice or with deliberate intent to prejudice a party in the case. Direct bribery -‐ Any public officer who shall agree to perform an act constituting a crime, in connection with the performance of his official duties, in consideration of any offer, promise, gift or present received by such officer, personally or through the mediation of another, shall suffer the penaltyu of prision mayor in its medium and minimum periods and a fine of not less that three times the value of the gift, in addition to the penalty corresponding to the crime. -‐ If the gift was accepted by the officer in consideration of the execution of an act which does not constitute a crime, and the officer executed the said act, he shall sufer the same penalty and if said act shall not have been accomplished, the officer shall suffer the penalties of prision correccional in its medium period and a fine of not less than twice the value of the gift. -‐ If the object for which the gift was received or promised was to
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make the officer refrain from doing something which it was his official duty to do, he shall suffer the penalties of prision correccional in its maximum period to prision mayor in its minimum period and a fine of not less that three times the value of such gift. The culprit shall also suffer the penalty of special temporary disqualification. The elements of direct bribery are: o Accused is a public officer o He received directly or through another some gift or promise o That such gift or promise has been given in consideration of his commission of some crime, or any act not constituting a crime, or to refrain from doing something which it is his official duty to do o That the crime or act relates to the exercise of his functions as a public officer The promise of a public officer to perform an act or refrain from doing it may be express or implied. A mere affidavit that bribed money was demanded by a judge in exchange for dismissal of a criminal charge is not sufficient.
Indirect bribery -‐ penalized by prision correccional in its medium and maximum periods, suspension and public censure. -‐ The elements if the crime are: o That the accused is a public officer
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He accepts a gift The gift is given to him, or he accepts it, by reason of his office Acceptance of a gift given him in appreciation of his services a public officer or as a reward for his work may constitute indirect bribery. o o
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Infidelity in the custody of documents -‐ Art 226 of the Revised Penal Code -‐ Prision mayor and a fine not exceeding P1,000 whenever serious damage shall have been caused to a third party or to the public interest -‐ Prision correccional in its minimum and medium periods and a fine not exceeding P1,000 whenever the damage caused to a third party or the public interest shall not have been serious -‐ In either case, the additional penalty of temporary special disqualification in its maximum period to perpetual special disqualification shall be imposed. -‐ The elements are: o The offender be a public officer o That there be a document abstracted, destroyed, or concealed o That the document destroyed or abstracted be entrusted to such public officer by reason of his office o That damage or prejudice to the public interest or to that of a third person be caused by the removal, destruction or concealment of the document.
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3 ways of committing the crime: removal, destruction and concealment.
Open disobedience -‐ A judicial officer who shall openly refuse to execute the judgment or decision or order of any superior authority made within the scope of jurisdiction of the latter and issued with all the legal formalities, shall suffer the penalties of arresto mayor in its medium period to prision correccional in its minimum period, temporary special disqualification in its maximum period and a fine not exceeding P1,000. Prolonging performance of duties and powers -‐ Any public officer who shall continue to exercise the duties and powers of his office, employment or commission, beyond the period provided by law, regulations or special provisions applicable to the case, shall suffer the penalties of prision correccional in its minimum period, special temporary disqualification in its minimum period and a fine not exceeding P500. Abandonment of office or position -‐ Any public officer who, before the acceptance of his resignation, shall abandon his office to the detriment of public service shall suffer the penalty of arresto mayor -‐ If such office have been abandoned in order to evade the discharge of the duties of preventing, prosecuting, or punishing any of the crimes
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
falling within Title One, and Chapter One of Title III of Book 2 of the RPC, the offender shall be punished in its minimum and medium periods, and by arresto mayor if the purpose of such abandonment is to evade the duty of preventing, prosecuting, or punishing any other crime. Usurpation og legislative powers -‐ The penalties of prision correccional in its minimum period, temporary special disqualification and a fine not exceeding P1,000 shall be imposed upon any public officer who shall encroach upon the powers of the legislative branch of the Government, either by making general rules and regulations beyond the scope of his authority or by attempting to repeal a law or suspending the execution thereof. Usurpation of executive fucntions -‐ Abt judge who shall assume any power pertaining to the executive authorities or shall obstruct the latter in the lawful exercise of their powers, shall suffer the penalty of arresto mayor in its medium period to prision correccional in its minimum period. Disobeying request for disqualification -‐ Any public officer who, before the questuin of jurisdiction is decided, shall continue any proceeding after having been lawfully required to refrain from so doing, shall be punished by arresto mayor and a fine not exceeding P500. Abuses against chastity
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
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The penalties of prision correccional in its medium and maximum periods and temporary special disqualification shall be imposed against any public officer who shall solicit or make immoral or indecent advances to a woman interested in matters pending before such officer for decision, or with respect to which he is required to submit a report to or consult with a superior officer.
Falsification by public officer, employee, or notary or ecclesiastical minister -‐ Penalty or prision mayor and a fine not to exceed P5,000 shall be imposed upon any public officer who, taking advantage of his official position, shall falsify a document by committing any of the following acts: o Counterfeiting or imitating any handwriting, signature or rubric o Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate o Attributing to persons who have participated in any act or proceeding statement other than thise in fact made by them o Making untruthful statements in narration of facts o Altering true dates o Making any alteration or intercalation in a genuine document which changes its meaning
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such copy a statement contrary to, or different from, that of the genuine original o Intercalating any instrument or note relative to the issuance thereof in a protocol, registry or official book. The principal thing punished is the violation of public faith and the destruction of truth as therein solemnly proclaimed. The elements of falsification by a public officer are: o The act was committed by the public officer with grave abuse of his office, that is, in deeds instruments, indentures, certificates, etc. in the execution of which he participates by reason of his office o Malicious intent to injure a third person and in the case of untruthful statements in a narration of facts, there is legal obligation to disclose the truth. o
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D. CRIMINAL LIABILITY UNDER THE ANTI-‐GRAFT ACT -‐
See RA 3019
E. OTHER CRIMES OF PUBLIC OFFICERS Crime of plunder -‐ RA 7080
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
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Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consangunity, business associates, subordinates or other person, amasses, accumulates or acquires ill-‐ gotten wealth through a combination or series of overt or criminal acts in the aggregate amount or total value of at least P75M shall be guilty and punished with life imprisonment with perpetual absolute disqualification from holding any public office. The amassed properties shall be forfeited in favor of the State Ill-‐gotten wealth – any asset, property, business enterprise or material possession of any person acquired by himself directly or indirectly through dummies, nominees, agents, subordinates and/or business associates through various schemes
Violation of the Code of Conduct for Public Officials -‐ punishes any public official or employee, regardless of type of employment, who violates the provisions of the Code with a fine not exceeding the equivalent of 6 months salary or a suspension not exceeding 1 year, or removal depending on the gravity of the offense -‐ If the violation is punishable by a heavier penalty under the law, he shall be prosecuted under the latter state. -‐ Violations of the provisions on prohibited acts and transactions, on statements and disclosures, or divestment shall be punishable with imprisonment not
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
exceeding 5 years or a fine not exceeding P5,000 or both. Violation of PD 46 -‐ punishes any public official or employee, whether of the national of local governments, who receives, directly or indirectly, and for private persons who gives, or offers to give, any gift, present, or other valuable thing on any occasion, including Christmas, when such gift, present, or other valuable thing is given by reason of his official position. -‐ PD 749 grants immunity from prosecution to givers of brides and other gifts and to their accomplices in bribery and other graft cases against public officers, under the conditions therein provided. Transfer of unlawfully acquired property -‐ Any public officer who shall transfer or convey any unlawfully acquired property shall be repressed with imprisonment for a term not exceeding 5 years or a fine not exceeding P10,000 or both. The same repression shall be imposed upon any person who shall knowingly accept such transfer or conveyance. Violation of right to counsel -‐ Any public officer or employee or anyone acting under his orders or in his place, who shall obstruct, prohibit, or otherwise prevent an attorney entitled to practice in the courts of the Philippines from visiting and conferring privately with a person arrested, or at any hour of the day, or in urgent cases, of the night, said visit and conference being requested by
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
the person arrested or by another acting in his behalf, or by a national or international non-‐ governmental organization duly accredited by the Office of the President, shall be punished by prision correccional. Election offenses -‐ The following public officers and employees shall be guilty of the following election offense: o Coercion of subordinates o Appointmrnt of new employees – 45 days beofre a regular election and 30 days before a special election; includes increase in salary or remuneration or privilege o Transfer of officers and employees in the civil service o Intervention of public officers and employees – except those holding political offices F. ADMINISTRATIVE LIABILITY Generally -‐ Sec 2, Art XI of the 1987 Constitution provides that Justices of the SC may be removed from office, on impeachment. -‐ All other Justices and judges from the CA to the lowest level may be removed from office as provided by law, but not by impeachment. Authority to discipline -‐ SC has administrative supervision over all courts and personnel thereof. -‐ SC can oversee compliance with the law and the Rules of Court and take proper administrative
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
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Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
action against Justices and judges if they commit any violation thereof. The Ombudsman has no power to entertain and investigate administrative complaints against judges and court personnel.
Administrative charges, generally -‐ Malfeasance – performance of some act which ought not to be done -‐ Misfeasance – improper performance of some act which might lawfully be done. -‐ Nonfeasance – omission of an act which ought to be performed -‐ There are two general categories of the grounds for suspension or dismissal: o Those related to the discharge of functions of the office concerned – may be the object of administrative action even if it does not amount to a crime. If it amounts to a crime, conviction by final judgment is not necessary o Not related to, or connected with, the functions of the office – act or omission should amount to a crime and conviction by final judgment of the crime involving moral turpitude or disqualification to hold office, to be subject to disciplinary action. Classifications of charges in serious, less serious and light charges -‐ Serious charges – from a fine not exceeding P40K to dismissal from service
Bribery, direct of indirect Dishonesty and violations of Anti-‐Graft and Corrupt Practices Law (RA 3019) o Gross misconduct constituting violations of the Code of Judicial Conduct o Knowingly rendering an unjust judgment or order as determined by a competent court in an appropriate proceeding o Conviction of a crime involving moral turpitude o Willful failure to pay a just debt o Borrowing money or property from lawyers and litigants in a case pending before the court o Immorality o Gross ignorance of the law or procedure o Partisan political activies o Alcoholism and/or vicious habits Less serious charges – fine not exceeding P20K to suspension from service of not more than 3 months o Undue delay in rendering a decision or order, or in transmitting the records of a case o Frequent and unjustified absences without leave of habitual tardiness o Unauthorized practice of law o Violation of the Supreme Court rules, directive, and circulars o Receiving additional or double compensation unless specifically authorized by law o o
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CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
Untruthful statements in the certificate of service o Simple misconduct or inefficiency Light charges – from admonition with a warning to a fine not exceeding P10K Repeated violation may render a judge liable for less serious or even serious charges o Vulgar and unbecoming conduct o Gambling in public o Fraternizing with lawyers and litigants with pending cases in his court o Undue delay in the submission of month reports The list is not exclusive. Other analogous acts may be grounds for discipline.
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
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Resort to judicial remedies required, in some administrative cases -‐ It is only after the available judicial remedies against the rulings or acts performed in the exercise of their judicial power have been exhausted and the appellate tribunals have spoken with finality, that the door to an inquiry into their criminal, civil or adminstrative liability may be said to have opened or closed. -‐ An administrative complaint is not the appropriate remedy for every act of a judge deemed aberrant or irregular where a judicial remedy exists and is available. G. ADMINISTRATIVE PROCEDURE How proceedings are instituted -‐ Proceedings for the discipline of judges of regular and special courts and justices of the CA and
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the Sandiganbayan may be instituted motu proprio by the SC or upon a verified complaint supported by affidavits of persons who have personal knowledge of the facts alleged therein or by documents which may substantiate said allegations, or upon anonymous complaint, supported by public records of indubitable integrity. The complaint shall be in writing and shall state clearly and concisely the acts and omissions constituting violations of standards of conduct precribed for judges by law, the Rules of Court, or the Code of Judicial Conduct. The SC does not, as a rule, entertain anonymous complaints against judges except in cases in which the charges could be fully borne by public records of indubitable integrity. Administrative complaints for disbarment and discipline must be filed with the SC, and if filed with the IBP, the latter has no jurisdiction to act on such complaint, except to forward the same to the SC for appropriate action.
Action on the complaint -‐ If the complaint is sufficient in form and substance, a copy thereof shall be served upon the respondent, and he shall be required to comment within 10 days from the date of service. Otherwise, the same shall be dismissed. -‐ If the charges do not merit action or of the answer shows to the satisfaction of the SC that the charges are not meritorious, the same shall be dismissed.
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
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The administrative case shall also be considered a disciplinary action against the respondent as a member of the Bar. -‐ Judgment in both respects may be incorporated in one decision or resolution. By whom complaint investigated -‐ Upon the filing of the respondent’s comment, or upon the expiration of the time of filing the same and unless other pleadings or documents are required, the Court shall refer the matter to the Office of the Court Administrator for evaluation, report and recommendation or assign the case for investigation, report and recommendation to a retired member of the SC, if the respondent is a Justice of the CA and the Sandiganbayan, or to a Justice of the CA, if the respondent is a judge of a Regular Trial Court or a special court of equivalent rank, or to a judge of the RTC if the respondent is a judge of an inferior court. Hearing -‐ The investigation justice or judge shall set a day for the hearing and send notice thereof to both parties. -‐ At such hearing, parties may present oral and documentary evidence. -‐ If after due notice the respondent fails to appear, the investigation shall proceed ex parte -‐ The withdrawal of the complaint does not divest the SC of the authority to order the investigation of the charges, nor result in its dismissal.
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
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The abolition of a respondent judge’s judicial position does not necessarily render the administrative case for acts committed moot and academic, not preclude his being liable in his present judicial position, where the charges are so serious that affect his competency and integrity as a judge. The resignation or retirement of a judge who is a respondent in an administrative case does not necessarily render the case moot nor deprive the SC of the authority to pronounce his guilt/innocence. The death of a respondent may render the administrative complaint moot and academic. However, if he dies pending resolution of the administrative charges against him, and was found guilty and the court administrator recommended his dismissal, the Court, inspite of his death, may decide to resolve the case on the merits and, if such recommendation is affirmed, impose forfeiture of death and retirement benefits of the respondent. The investigating Justice or judge shall terminate the investigation within 90 days from the date of its commencement or within such extension as the SC may grant.
Report and Recommendation -‐ Within 30 days from the termination of the investigation, the investigating Justice/Judge shall submit to the SC a report containing his findings of fact and recommendation. -‐ The report shall be accompanied by the record containing the
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
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evidence and the pleadings filed by the parties. The report shall be confidential and for exclusive use of the Court
Quantum of evidence required -‐ The quantum of evidence may depend on the nature of the charge in light of the classifications of the charges (serious, less serious, and light) -‐ If the administrative offense involves a violation of a criminal law, which if proved will require dismissal of a judge from service, the quantum of evidence required to hold him liable is proof beyond reasonable doubt. -‐ Where the charge is less serious or acts that does not require dismissal from service, preponderance of evidence is necessary. -‐ Where the charge is light, mere substantial evidence may be required. Res ipsa loquitur -‐ The Court may impose its authority upon erring judges whose actuations, on their face, would show gross incompetence, gross ignorance of the law, or grave misconduct. -‐ The res ipsa loquitur doctrine does not dispense with the necessity of proving the facts from which the inference of evil intent is based. Decision; sanction -‐ The Court shall take such action on the report as the facts and the law may warrant, which may be dismissing the complaint or holding the judge liable and imposing the corresponding penalty against him.
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
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Sanctions which may imposed for serious charge: o Dismissal from servic, forfeiture of all or part of the benefits as may be determined by the Court and disqualification from reinstatement or appointment to any public office, including GOCCs. Provided, however, that the forfeiture of benefits shall in no case include accrued leave benefits o Suspension from office without salary and other benefits for more than 3 but not exceeding 6 months o A fine of more than P20K but not exceeding P40K. Less serious charge: o Suspension from office without salary and other benefits for not less that 1 nor more than 3 months o A fine of more than P10K but not exceeding P20K Light charges: o A fine of not less that P1K but not exceeding P10K and/or o Censure o Reprimand o Admonition with a warning While double jeopardy dies not lie in administrative cases, it would be contrary to equity and substantial justice to penalize a judge a second time for an act, the penalty of which had already been served by him.
Confidentiality of proceedings
CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
Legal and Judicial Ethics Reviewer Chap 8 to Chap 19
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The confidential character of the proceedings during their pendency has a three-‐fold purpose. o To enable the SC to make its investigation free from any extraneous influence or interference o To protect the personal and professional reputation of the Justices and Judges from baseless charges of disgruntled, vindictive and irresponsible persons or litigants by prohibiting the publication of such charges pending their final resolution o To deter the press from publishing the charges or proceedings based thereon for even a verbatim reproduction of the complaint against a Judge in a newspaper may be actionable The confidentiality of the proceedings is a privilege or right which may be waived by the judge. After the SC shall have rendered its decision, a copy thereof is attached to the record of the respondent in the Office of the Court Administrator. The proceeding then ceases to be confidential, and the decision become a public document, just like any other decisions of the Court.
Legal and Judicial Ethics (2009 ed.) By Ruben E. Agpalo
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The SC has reinstated dismissed judges to their former position. In this sense, the decision of the SC dismissing a judge from service does not become final, as the Court may still reinstate him to his former position or reduce the pecuniary penalties. A judge who has been previously dismissed from the service for manifestly erroneous decision in a criminal case through gross incompetence and gross ignorance of the law may be reinstated where there is no clear indication that he was inspired by corrupt motives or a reprehensible purpose to set the plainly guilty free.
Reinstatement of a judge previously dismissed -‐ Reinstatement is essentially an act of appointment of a judgem which may only be extended by the President of the Philippines. CHING, Catherine Anna A. || ESPIRITU, Maria Nikka N. || Guzman, Anne Clarisse A. San Beda College of Law A.Y. 2013-‐2014
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