golden notes legal ethics

LEGAL AND JUDICIAL ETHICS 2014 GOLDEN NOTES UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW MANILA

The UST GOLDEN NOTES is the annual student-edited bar review material of the University of Santo Tomas, Faculty of Civil Law, thoroughly reviewed by notable and distinct professors in the field. Communications regarding the NOTES should be addressed to the Academics Committee of the Team: Bar-Ops. ADDRESS:

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Academics Committee Faculty of Civil Law University of Santo Tomas España, Manila 1008

All Rights Reserved by the Academics Committee of the Faculty of Civil Law of the Pontifical and Royal University of Santo Tomas, the Catholic University of the Philippines. 2014 Edition No portion of this material may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devises or in any other form, for distribution or sale, without a written permission. A copy of this material without the corresponding code either proceeds from an illegal source or is in possession of one who has no authority to dispose the same. No. __________ Printed in the Philippines, June 2014.

ACADEMIC YEAR 2014-2015

CIVIL LAW STUDENT COUNCIL VICTOR LORENZO L. VILLANUEVA GLORIA ANASTASHA T. LASAM JOHN ROBIN G. RAMOS RAE GENEVIEVE L. ACOSTA RAFAEL LORENZ S. SANTOS

PRESIDENT VICE PRESIDENT INTERNAL TREASURER AUDITOR CHIEF-OF-STAFF

TEAM: BAR-OPS VANESSA ANNE VIRAY ERIKA PINEDA JOHN LESTER TAN HAZEL NAVAREZ HANNAH QUIAMBAO JULIA THERESE MAGARRO RAFAEL LORENZ SANTOS DEXTER SUYAT AL MAYO PAGLINAWAN ALBERTO VERNON VELASCO KEVIN TIMOTHY PILE JEAN PEROLA PATRICIA LACUESTA REINALD VILLARAZA VANESSA ANNE VIRAY

CHAIRPERSON HEAD, DOCUMENTATIONS & BAR REQUIREMENTS ASST. HEAD, DOCUMENTATIONS & BAR REQUIREMENTS

HEAD, HOTEL ACCOMODATIONS COMMITTEE ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE

HEAD, FINANCE COMMITTEE ASST. HEAD, FINANCE COMMMITTEE

HEAD, LOGISTICS COMMITTEE ASST. HEAD, LOGISTICS COMMITTEE ASST. HEAD, LOGISTICS COMMITTEE

HEAD, PUBLIC RELATIONS ASST. HEAD, PUBLIC RELATIONS ASST. HEAD, PUBLIC RELATIONS

ATTY. AL CONRAD B. ESPALDON ADVISER

CHAIRPERSON

ACADEMICS COMMITTEE MARY GRACE L. JAVIER JAMES BRYAN V. ESTELEYDES MA. SALVE AURE M. CARILLO

EXECUTIVE COMMITTEE

WILLIAM RUSSEL S. MALANG

SECRETARY GENERAL

KAREN T. ELNAS RAFAEL LORENZ SANTOS VICTOR LORENZO L. VILLANUEVA

ADMINISTRATION AND FINANCE LAYOUT AND DESIGN

LEGAL AND JUDICIAL ETHICS COMMITTEE DONNA MARIE P. CABARRUBIAS MARIOLE ANA SANTIAGO MARICHIE ALARAS GLENN CHUA AVIEN RAINEL GARCIA

LEGAL AND JUDICIAL ETHICS COMMITTEE HEAD ASST. LEGAL AND JUDICIAL ETHICS COMMITTEE HEAD ASST. LEGAL AND JUDICIAL ETHICS COMMITTEE HEAD MEMBER MEMBER

JUSTICE MYRA V. GARCIA-FERNANDEZ ADVISER

FACULTY OF CIVIL LAW

UNIVERSITY OF SANTO TOMAS ACADEMIC OFFICIALS ATTY. NILO T. DIVINA DEAN

REV. FR. ISIDRO C. ABAÑO, O.P. REGENT

ATTY. ARTHUR B. CAPILI FACULTY SECRETARY

ATTY. ELGIN MICHAEL C. PEREZ LEGAL COUNSEL UST CHIEF JUSTICE ROBERTO CONCEPCION LEGAL AID CLINIC

JUDGE PHILIP A. AGUINALDO SWDB COORDINATOR

LENY G. GADANIA, R.G.C. GUIDANCE COUNSELOR

COVERAGE

LEGAL AND JUDICIAL ETHICS 2014 BAR EXAMINATIONS

I.

LEGAL ETHICS A. Practice of Law (Rule 138)............................................................................................................... 1. Concept.................................................................................................................................... a) Privilege..................................................................................................................... b) Profession, not Business............................................................................................ 2. Qualifications............................................................................................................................ 3. Appearance of Non-Lawyers.................................................................................................... a) Law Student Practice (Rule 138-A)............................................................................. b) Non-Lawyers in Court................................................................................................ c) Non-Lawyers in Administrative Tribunals.................................................................. 4. Sanctions from practice or appearance without authority...................................................... a) Lawyers without authority......................................................................................... b) Persons not lawyers................................................................................................... 5. Public Officials and the practice of law …................................................................................. a) Prohibition or disqualification of former government attorneys............................... b) Public officials who cannot practice law/ restrictions................................................ 6. Lawyers authorized to represent the Government.................................................................. 7. Lawyer's Oath............................................................................................................................

1 1 3 3 3 6 6 6 7 8 8 8 10 10 10 12 12

B. Duties and Responsibilities of a Lawyer............................................................................................. 1. To Society.................................................................................................................................. a) Respect for Law and Legal Processes........................................................................ b) Efficient and Convenient legal services...................................................................... c) True, Honest, Fair, Dignified information on legal services........................................ 2. To the legal profession.............................................................................................................. a) Integrated Bar of the Philippines................................................................................ b) Upholding the Dignity and Integrity of the profession............................................... c) No assistance in unauthorized practice of law........................................................... 3. To the Courts............................................................................................................................ a) Candor, Fairness and Good Faith to the courts.......................................................... b) Respect for the courts and judicial officers……........................................................... c) Avoidance of impropriety which tends to influence the courts.................................. 4. To the Clients............................................................................................................................. a) Availability of services without discrimination............................................................ (1) Services regardless of persons status................................................................. (2) Services as counsel de oficio............................................................................... (3) Valid grounds for refusal..................................................................................... b) Candor, Fairness and Loyalty to Clients....................................................................... (1) Confidentiality Rule............................................................................................ (2) Privileged Communications................................................................................ (3) Conflict of Interest.............................................................................................. c) Client's Money and Properties..................................................................................... (1) Fiduciary Relationship......................................................................................... (2) Co-Mingling of Funds.......................................................................................... (3) Delivery of Funds................................................................................................ (4) Borrowing/Lending............................................................................................. d) Fidelity to client's cause............................................................................................... e) Competence and Diligence.......................................................................................... (1) Adequate Protection.......................................................................................... (2) Negligence.......................................................................................................... (3) Collaborating Counsel.........................................................................................

13 14 14 19 22 28 28 32 35 36 36 38 46 47 47 48 48 49 51 51 51 53 57 58 59 59 60 61 61 61 62 62

(4) Duty to apprise client............................................................................ f) Representation with zeal within legal bounds................................................ (1) Use of Fair and Honest Means.............................................................. (2) Client Fraud........................................................................................... (3) Procedure in handling the case............................................................. g) Attorney's Fees............................................................................................... (1) Kinds of payment................................................................................... (2) Contingency Fee.................................................................................... (3) Attorney's Lien....................................................................................... (4) Charging Lien......................................................................................... h) Client Confidences......................................................................................... (1) Prohibited disclosures........................................................................... (2) Disclosure, when allowed..................................................................... C. Suspension, Disbarment and Discipline of Lawyers (Rule 139-B)............................................... 1. Nature and Characteristic of Action.............................................................................. a) Sui Generis...................................................................................................... b) Prescription..................................................................................................... 2. Grounds......................................................................................................................... 3. Proceedings................................................................................................................... D. Readmission to the Bar............................................................................................................... 1. Suspended Lawyers....................................................................................................... 2. Disbarred Lawyers......................................................................................................... 3. Repatriated Lawyers...................................................................................................... E. Mandatory Continuing Legal Education....................................................................................... 1. Purpose.......................................................................................................................... 2. Requirements................................................................................................................ 3. Compliance.................................................................................................................... 4. Exemptions.................................................................................................................... 5. Sanctions....................................................................................................................... 6. Legal Aid Service............................................................................................................ F. Notarial Practice........................................................................................................................... 1. Qualifications................................................................................................................. 2. Term of Office................................................................................................................ 3. Powers and Limits.......................................................................................................... 4. Administer Oaths........................................................................................................... 5. Jurisdiction..................................................................................................................... 6. Revocation of Commission............................................................................................ 7. Competent Evidence of Identity.................................................................................... 8. Sanctions........................................................................................................................ G. Canons of Professional Ethics.......................................................................................................

63 63 64 64 65 65 66 69 71 71 75 75 76 80 80 81 81 81 83 90 90 91 92 93 93 93 93 93 94 94 97 97 99 99 103 105 105 106 106 107

II. Judicial Ethics A. Sources.......................................................................................................................................... 1. New Code of Judicial Conduct for the Philippine Judiciary (Bangalore Draft)……………… 2. Code of Judicial Conduct................................................................................................. B. Qualities........................................................................................................................................ 1. Independence................................................................................................................. 2. Integrity........................................................................................................................... 3. Impartiality...................................................................................................................... 4. Propriety......................................................................................................................... 5. Equality............................................................................................................................ 6. Competence and Diligence.............................................................................................. C. Discipline of the Members of the Judiciary.................................................................................. 1. Members of the Supreme Court..................................................................................... a) Impeachment.................................................................................................... b) Ethical Lessons from the Impeachment of Former Chief Justice Corona……….

109 109 110 115 115 117 119 125 132 134 139 139 139 140

2. Lower Court Judges/ Court of Appeals and Sandiganbayan........................................ 3. Grounds....................................................................................................................... 4. Sanctions on erring members of the Judiciary............................................................ D. Disqualifications of Justices and Judges (Rule 137)................................................................... 1. Compulsory.................................................................................................................. 2. Voluntary..................................................................................................................... E. Legal Fees................................................................................................................................... F. Costs...........................................................................................................................................

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DISCLAIMER THE RISK OF USE, MISUSE OR NONUSE OF THIS BAR REVIEW MATERIAL SHALL BE BORNE BY THE USER/ NON-USER.

PRACTICE OF LAW that his professional services are available to the public for compensation, as a source of livelihood or in consideration of his said services.

LEGAL ETHICS Legal Ethics

2. Application of law, legal principle, practice or procedure which calls for legal knowledge, training and experience;

It is a branch of moral science which treats of the duties which an attorney owes to the court, to his client, to his colleagues in the profession and to the public as embodied in the Constitution, Rules of Court, the Code of Professional Responsibility, Canons of Professional Ethics, jurisprudence, moral, law and special laws (Justice George Malcolm).

3. Habituality – implies customary or habitually holding oneself out to the public as a lawyer. Practice of law is more than an isolated appearance for it consists in frequent or customary action; and 4. Attorney-Client relationship - engaging in the practice of law presupposes the existence of a lawyer-client relationship. Ten (10) years of practice of law includes work as a litigator, in-house counsel, giving of legal advice, teaching of law and even foreign assignment which requires the knowledge and application of the laws.

Sources of ethical standards for the Judiciary 1.

2.

Primary a. Bar i. Code of Professional Responsibility ii. Constitution iii. Rules of Court b. Bench i. New Code of Judicial Conduct for the Philippine Judiciary ii. Rules of Court c. Other personnel – Code of Conduct for Court Personnel

Q: Ronnie, a paralegal in a law firm, helped Beth in a property dispute in which she was involved by giving her legal advice and preparing a complaint that she eventually filed in court under her own signature. When the lawyer for the defendant learned of it, he told Ronnie to desist from practicing law. But he disputed this, claiming that he had not practiced law since he did not receive compensation from Beth for his help. Is Ronnie correct? (2011 Bar Question)

Secondary a. Decisions/Resolutions of the Supreme Court b. Supreme Court Circulars c. Order/Resolution of other courts d. IBP Issuances e. Treatises and Publications

A: No, because receipt of compensation is not the sole determinant of legal practice. Giving of advice or rendering any kind of service that involves legal knowledge is also considered as practice of law. As such, Ronnie should desist from giving legal advices since the same is considered a practice of law to which he is not qualified.

PRACTICE OF LAW Concept

Q: Judge Anna has many law-related activities. She teaches law and delivers lectures on law. Some people in the government consult her on their legal problems. She also serves as director of a stock corporation devoted to penal reform, where she participates in both fund raising and fund management. Which of the aforesaid activities is she allowed to do? (2011 Bar Question)

Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training, and experience (Cayetano v. Monsod, G.R. No. 100113, Sept. 3, 1991). The following acts constitute practice of law: a. Giving of advice or rendering any kind of service that involves legal knowledge. b. Appearance in court and conduct of cases in court. c. Preparation of pleadings and other papers incident to actions as well as drawing of deeds and instruments of conveyance.

A: She can teach law and deliver lectures on law (Sec. 10(a) Canon 4 New Code of Judicial Conduct) but cannot give legal advice since it is a practice of law to which judges are prohibited to do (Sec. 11 Canon 4, New Code of Judicial Conduct). Also, she cannot serve as director of a stock corporation since the same is incompatible with the diligent discharge of judicial duties (Sec. 7 Canon 6, New Code of Judicial Conduct). She can be a director of her Family Corporation but not part of the management.

Essential criteria in determining whether a person is engage in the practice of law (CAHA) 1. Compensation – implies that one must have presented himself to be in the active practice and

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics Persons excluded in the term “Practicing Lawyer”

4. Counsel de oficio

“Practicing Lawyer” excludes: 1. Government employees and incumbent elective officials not allowed by law to practice; 2. Lawyers who by law are not allowed to appear in court; 3. Supervising lawyers of students enrolled in law student practice in duly accredited legal clinics of law schools and lawyers of Non-Government Organizations (NGOs) and People’s Organizations (POs) who by the nature of their work already render free legal aid to indigent and pauper litigants; and 4. Lawyers not covered under subparagraphs (i) to (iii) (of Sec. 4, B.M. 2012) including those who are employees in the private sector but do not appear for and in behalf of parties in courts of law and quasijudicial agencies.

An attorney appointed by the court to defend an indigent defendant in a criminal action. 5. Counsel de parte A private counsel of a party, secured by him, without intervention from the government. 6. Amicus Curiae An experienced and impartial attorney invited by the court to appear and help in the disposition of the issues submitted to it. An amicus curiae appears in court not to represent any particular party but only to assist the court (plural: Amici Curiae). 7. Amicus Curiae par excellence

Definitions A bar association who appears in court as amicus curiae or a friend of the court. It acts merely as a consultant to guide the court in a doubtful question or issue pending before it.

1. Bar v. Bench BAR Refers to the whole body of attorneys and counselors. Collectively, the members of the legal profession.

BENCH Refers to the whole body of judges and justices.

8. Trial lawyer One who personally handles cases in court, administrative agencies or boards and engages in actual trial work, either for the prosecution or for the defense of cases of clients.

2. Attorney-at-law v. Attorney-in-fact ATTORNEY-AT-LAW Class of persons who are licensed officers of the court empowered to appear, prosecute and defend, and upon whom peculiar duties, responsibilities and liabilities are developed by law as consequence.

9. Lead counsel v. In house counsel v. Of counsel

ATTORNEY-IN-FACT Simply an agent whose authority is strictly limited by the instrument appointing him. His authority is provided in a special power of attorney or general power of attorney or letter of attorney. He is not necessarily a lawyer.

LEAD COUNSEL A lead counsel is a lawyer on either side of a litigated action who is charged with the principal management and direction of a party’s case, as distinguished from his juniors or subordinates.

3. Attorney of record v. Attorney ad hoc ATTORNEY OF RECORD Attorney of record is an attorney whose name is entered in the records of an action or suit as the lawyer of a designated party thereto.

ATTORNEY AD HOC An attorney ad hoc is a person appointed by the court to defend an absentee defendant in the suit in which the appointment was made.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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IN HOUSE / HOUSE COUNSEL He is one who acts as attorney for a business though carried as an employee of that business and not as an independent lawyer.

OF COUNSEL He is an experienced lawyer, usually a retired member of the judiciary, employed by law firms as consultants.

PRACTICE OF LAW 10. Public prosecutor v. Private prosecutor PUBLIC PROSECUTOR He is a quasi-judicial officer who represents the state in criminal proceedings.

A legal profession is not a business. It is not a moneymaking trade just like a businessman employing strategy for the purpose of monetary gain. It is a sacred profession imbued with public interest whose primary objective is public service, as it is an essential part in the administration of justice and a profession in pursuit of which pecuniary reward is considered merely incidental.

PRIVATE PROSECUTOR A private prosecutor is a lawyer engaged by a litigant to intervene in the prosecution of a criminal action when the offended party is entitled to indemnity and has not waived expressly, reserved or instituted the civil action for damages. He is under the direction and control of the public prosecutor (Sec. 5 Rule 110 RRC as amended, May 1, 2002).

QUALIFICATIONS Who may practice law Any person heretofore duly admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions of the rule, and who is in good and regular standing, is entitled to practice law (RRC, Rule 138, Sec. 1). Q: A criminal case was filed against Atty. Javellana, which resulted to his arrest and temporary detention at the house of the clerk of court where his case was pending. Despite his detention, Atty. Javellana continues with his normal activities including his practice of law, in appearing as counsel for certain cases. Can Atty. Javellana still engage in the practice of law despite his arrest and detention?

11. Assumpsit (2006 Bar Question) Literally means “he has undertaken”. It is an action for the recovery of damages by reason of the breach or nonperformance of a simple contract, either express or implied, or whether made orally or in writing. Assumpsit is the word always used in pleadings by the plaintiff to set forth the defendant’s undertaking or promise.

A: As a detention prisoner, Javellana is not allowed to practice his profession as a necessary consequence of his status as a detention prisoner. The trial court's order was clear that Javellana "is not to be allowed liberty to roam around but is to be held as a detention prisoner." The prohibition to practice law referred to all other cases, except in cases where Javellana would appear in court to defend himself (Pro Se).

NOTE: Claims in action of assumpsit were ordinarily divided into (a) common or indebitatus assumpsit, brought usually on an implied promise, and (b) special assumpsit, founded on an express promise.

12. Pro Se A party to a lawsuit who represents himself, is appearing in the case "pro se."

All prisoners whether under preventive detention or serving final sentence cannot practice their profession nor engage in any business or occupation, or hold office, elective or appointive, while in detention. This is a necessary consequence of arrest and detention (People v. Maceda, G.R. Nos. 89591-96, Jan. 24, 2000).

PRIVILEGE Nature of the practice of law The practice of law is not a natural, property or constitutional right but a mere privilege. It is not a right granted to anyone who demands it but a privilege to be extended or withheld in the exercise of sound judicial discretion. It is a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness.

Legislature is not allowed to regulate the practice of law The 1987 Constitution no longer provides for the power of the legislature to repeal, alter and supplement the Rules promulgated by the Supreme Court.

NOTE: It becomes a property right if there is a contract for Attorney’s Fees.

Practice of law by the clerk of court GR: The practice of law by a clerk of court is not allowed, except isolated practice.

PROFESSION, NOT BUSINESS Law is a profession and not a trade

XPNs: 1. Written permission which must be approved by the

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics Supreme Court; and 2. Approved leave of absence with justifiable reasons

A Filipino citizen who completed and obtained his or her degree in Bachelor of Laws or its equivalent in a foreign law school must also present proof of completion of a separate bachelor’s degree (Bar Matter No. 1153, Re: Letter of Atty. Estelito P. Mendoza Proposing Reforms in the Bar Examinations through Amendments to Rule 138 of the Rules of Court, Mar. 9, 2010).

NOTE: Notarial act is practice of law. Notarization of a single document is not an isolated transaction, therefore, a permit must be secured in order to prevent the violation of law.

Q: Atty. Ladaga, a clerk of court, appeared as counsel for and in behalf of his cousin in a criminal case for falsification of public documents before the METC of Quezon City. The appearance of Atty. Ladaga in said case was without the previous permission of the Court. Did Atty. Ladaga violate the Code of Conduct and Ethical Standards for Public Officials and Employees by engaging in private practice?

The 5 Strike Rule in taking the Bar The Former 5-Strike Rule was lifted by the Supreme Court en banc in a resolution on September 3, 2013. Thus, to this day, the taking of the bar has no limit. Q: Ching was born on April 1964 of Filipino mother and Chinese father. He was conditionally admitted to take the bar examination because of questions arising to his citizenship. Upon passing the bar he was required to take further proof of citizenship and was not allowed to take the oath. Can he elect Philippine citizenship, 14 years after reaching the age of majority (required under the 1935 Constitution)?

A: Yes. "Private practice" of a profession, which is prohibited, does not pertain to an isolated court appearance; rather, it contemplates a succession of acts of the same nature habitually or customarily holding one's self to the public as a lawyer. It is true that he filed leave applications corresponding to the dates he appeared in court but he failed to obtain a prior permission from the head of the Department (Oca v. Atty. Ladaga, A.M. No. P-99-1287, Jan. 26, 2001).

A: No, Ching is not qualified to be a lawyer for having elected Philippine citizenship 14 years after reaching the age of majority. Ching offered no reason why he delayed the election of Philippine citizenship. The procedure is not a tedious process. All that is required is to execute an affidavit and file the same in the nearest registry (In Re: Application for Admission to the Philippine Bar of Vicente Ching, B.M. 914, Oct. 1, 1999).

Requirements for admission to the Bar Under Sections 2, 5 and 6 of Rule 138, the applicant must be (C21GRENAPOS): 1. Citizen of the Philippines; 2. At least 21 years of age; 3. Of Good moral character; 4. Resident of the Philippines; 5. Must produce before the SC satisfactory Evidence of good moral character; 6. No charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines (Sec. 2, Rule 138, RRC); 7. Must have complied with the Academic requirements; 8. Must Pass the bar examinations; 9. Take the lawyer’s Oath; and 10. Sign the Roll of Attorneys.

Q: Atty. Melendrez filed a petition to disqualify Meling from taking the bar exams and to impose disciplinary penalty as a member of the Philippine Shari'a Bar. He alleges that Meling, in his application to take the bar, failed to disclose the fact that he has 3 pending criminal cases. Also, Meling has been using the title “Attorney" in his communications as secretary to the Mayor. Should Meling be disqualified from admission to the Bar? A: Meling's deliberate silence and non-revelation of his pending criminal cases constitute concealment. The disclosure requirement is imposed to determine whether there is satisfactory evidence of good moral character of the applicant. By concealing the existence of such cases, the applicant flunks the test of fitness even if the cases are ultimately proven unwarranted or insufficient to impugn or affect the good moral character of the applicant. Further, It was highly improper for Meling, as member of the Shari'a Bar, to use the title "Attorney". Only members of the Philippine Bar, who have obtained the necessary degree in the study of law and successfully passed the bar exams, been admitted to the IBP and remain members in good standing are authorized to practice law and thus use the title (In Re:

Requirements for a Filipino who graduated from a foreign law school to be admitted to the Bar He may be admitted to the bar only upon submission to the Supreme Court of certifications showing: a) Completion of all courses leading to the degree of Bachelor of Laws or its equivalent degree; b) Recognition or accreditation of the law school by the proper authority; and c) Completion of all fourth year subjects in the Bachelor of Laws academic program in a law school duly recognized by the Philippine Government. UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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PRACTICE OF LAW Disqualification of Bar Examinee Haron S. Meling, B.M. No. 1154, June 8, 2004).

an attorney requires that a lawyer shall be a person of good moral character. Since this qualification is a condition precedent to a license to enter upon the practice of law, the maintenance thereof is equally essential during the continuance of the practice and the exercise of the privilege. Gross misconduct which puts the lawyer's moral character in serious doubt may render her unfit to continue in the practice of law. The loss of moral character of a lawyer for any reasons whatsoever shall warrant her suspension or disbarment, because it is important that members of the legal brotherhood must conform to the highest standards of morality. Any wrongdoing, which indicates moral unfitness for the profession, whether it is professional or non-professional, justifies disciplinary action.

Q: Mike Adelantado disclosed in his petition to take the 2003 bar examinations that there were two civil cases pending against him for nullification of contract and damages. He was thus allowed to conditionally take the bar, and subsequently placed third in the said exams. In 2004, after the two civil cases had been resolved, Mike Adelantado filed his petition to take the Lawyer’s Oath and sign the Roll of Attorneys before the Supreme Court. The Office of the Bar Confidant, however, had received two anonymous letters: the first alleged that at the time Mike Adelantado filed his petition to take the bar, he had two other civil cases pending against him, as well as a criminal case for violation of B.P. 22; the other letter alleged that Mike Adelantado, as Sangguniang Kabataan Chairperson, had been signing the attendance sheets of SK meetings as “Atty. Mike Adelantado.” Having passed the Bar, can Mike already use the appellation “attorney”? Explain your answer.

Moreover, her deliberate refusal to accept the notices served on her betrays a deplorably willful character or disposition (Grande v. Atty. De Silva, A.C. No. 4838, July 29, 2003). Q: Argosino passed the bar examinations held in 1993. The Court however deferred his oath-taking due to his previous conviction for Reckless Imprudence Resulting in Homicide. The criminal case, which resulted in Argosino’s conviction, arose from the death of a neophyte during fraternity initiation rites. Various certifications show that he is a devout Catholic with a genuine concern for civic duties and public service. Also, it has been proved that Mr. Argosino has exerted all efforts to atone for the death of Raul. Should Argosino be allowed to take his lawyer's oath?

A: No. Passing the Bar examination is not sufficient for admission of a person to the Philippine Bar. He still has to take the oath of office and sign the Attorney’s Roll as prerequisites to admission. Only those who have been admitted to the Philippine Bar can be called “Attorney." Further, he should not be allowed to take his oath and sign the Attorney’s Roll. Rule 7.01 of the Code of Professional Responsibility provides that “a lawyer shall be answerable for knowingly making a false statement or suppressing a material fact in connection with his application for admission to the Bar” (Alawi v. Alauya, A.M. No. SDC-97-2-P, Feb. 4, 1997).

A: Yes. The practice of law is a privilege granted only to those who possess the strict intellectual and moral qualifications required of lawyers who are instruments in the effective and efficient administration of justice. The SC recognizes that Mr. Argosino is not inherently of bad moral fiber given the various certifications that he is a devout Catholic with a genuine concern for civic duties and public service and that it has been proved that he has exerted all efforts to atone for the death of Raul and the court gave him the benefit of the doubt, taking judicial notice of the general tendency of youth to be rash, temerarious and uncalculating (Re: Petition of Al Argosino to Take the Lawyer’s Oath, B.M. No. 712, Mar. 19, 1997).

Q: Grande was the private offended party in a criminal case while Atty. De Silva was the counsel for the accused. During the course of the proceedings, Atty. De Silva tendered a check in favor of Grande in order for the latter to desist from participating as a witness against her client. Eventually, Grande accepted the check and refused to participate as a complaining witness thereby leading to the dismissal of the case. However, to Grande’s consternation, the check bounced because Atty. De Silva’s account was already closed. When the court ordered Atty. De Silva to comment on the charges against her, she deliberately refused to accept all the notices coming from the court. Is Atty. De Silva guilty of breach of trust? Did she violate her oath as a lawyer by issuing a bouncing check and by refusing to accept the notices sent to her coming from the court?

Good moral character is a continuing requirement Well-settled is the rule that good moral character is not only a condition precedent for admission to the legal profession, but it must also remain intact in order to maintain one’s good standing in that exclusive and honored fraternity (Tapucar v. Tapucar, A.C. No. 4148, July 30, 1998).

A: Yes, Atty. De Silva had committed a breach of trust in issuing a bouncing check, which amounted to deceit and violation of the lawyer’s oath. The nature of the office of

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics The requirement of good moral character has four general purposes, namely: 1. 2. 3. 4.

Q: Ferdinand Cruz sought permission to enter his appearance for and on his behalf before the RTC as the plaintiff in a Civil Case for Abatement of Nuisance. Cruz, a fourth year law student, anchors his claim on Section 34 of Rule 138 of the Rules of Court that a non-lawyer may appear before any court and conduct his litigation personally. Judge Mijares denied the motion with finality. In the same Order, the trial court held that for the failure of Cruz to submit the promised document and jurisprudence and for his failure to satisfy the requirements or conditions under Rule 138-A of the Rules of Court, his appearance was denied. Did the court act with grave abuse of discretion amounting to lack or excess of jurisdiction when it denied the appearance of Cruz as party litigant?

To protect the public To protect the public image of lawyers To protect prospective clients To protect errant lawyers from themselves.

Each purpose is as important as the other (Garrido v. Attys. Garrido and Valencia, A.C. No. 6593, Feb. 4, 2010). APPEARANCE OF NON-LAWYERS Appearance of non-lawyers GR: Only those who are licensed to practice law can appear and handle cases in court.

A: Yes. The law recognizes the right of an individual to represent himself in any case to which he is a party. The Rules state that a party may conduct his litigation personally or with the aid of an attorney, and that his appearance must either be personal or by a duly authorized member of the Bar. The individual litigant may personally do everything in the course of proceedings from commencement to the termination of the litigation. Cruz as plaintiff, at his own instance, can personally conduct the litigation of his case. He would then be acting not as a counsel or lawyer, but as a party exercising his right to represent himself.

XPNs: 1. Law student practice 2. Non-lawyers in court can appear for a party in MTC NOTE: Section 34, Rule 138 of the Revised Rules of Court expressly allows pro se practice or the right of a nonmember of the bar to engage in limited practice of law (Antiquiera, 1992).

3. Non-lawyers in administrative tribunal can represent parties in tribunals such as NLRC, DARAB, Cadastral Courts.

The trial court must have been misled by the fact that Cruz is a law student and must, therefore, be subject to the conditions of the Law Student Practice Rule. It erred in applying Rule 138-A, when the basis of Cruz's claim is Section 34 of Rule 138. The former rule provides for conditions when a law student may appear in courts, while the latter rule allows the appearance of a nonlawyer as a party representing himself (Cruz v. Mijares, et al., G.R. No. 154464, Sept. 11, 2008).

LAW STUDENT PRACTICE Law student practice rule A law student who has successfully completed his third year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's clinical legal education program approved by the Supreme Court, may appear without compensation in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to represent indigent clients accepted by the legal clinic of the law school (Sec. 1, Rule 138-A).

NON-LAWYERS IN COURT Non-lawyers in court

The appearance of the law student authorized by this rule, shall be under the direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by the law school. Any and all pleadings, motions, briefs, memoranda or other papers to be filed, must be signed by the supervising attorney for and in behalf of the legal clinic (Rule 138-A, Sec. 2).

The following are the instances whereby non-lawyers may appear in court: 1.

NOTE: The law student shall comply with the standards of professional conduct governing members of the Bar. Failure of an attorney to provide adequate supervision of student practice may be a ground for disciplinary action (Circular No.19, dated Dec. 19, 1986).

2.

Cases before the MTC: A party to the litigation, may conduct his own case or litigation in person, with the aid of an agent or friend appointed by him for that purpose (RRC, Rule 138, Sec. 34); Before any other court, a party may conduct his litigation personally. But if he gets someone to aid him, that someone must be authorized member of the Bar (RRC, Rule 138, Sec. 34); NOTE: A non-lawyer conducting his own litigation is

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

6

PRACTICE OF LAW bound by the same rules in conducting the trial case. He cannot after judgment, claim that he was not properly represented.

3.

thereof (Art 222, PD 442, as amended) (2002 Bar Question); c. If they are duly accredited members of any legal aid office duly recognized by the Department of Justice, or the Integrated Bar of the Philippines in cases referred to by the latter.

Criminal case before the MTC in a locality where a duly licensed member of the Bar is not available, the judge may appoint a non- lawyer who is a: a. Resident of the province; AND b. Of good repute for probity and ability to aid the accused in his defense (RRC, Rule 116, Sec. 7);

NOTE: He is not, however, entitled to attorney’s fees under Article 222 of the Labor Code for not being a lawyer (Five J. Taxi v. NLRC, G.R. No. 111474, Aug. 22, 1994).

2. 4.

Any official or other person appointed or designated to appear for the Government of the Philippines in accordance with law (RRC, Sec. 33, Rule 138).

Q: Eric, a labor federation president, represented Luisa, a dismissed WXT employee, before the NLRC. Atty. John represented Luisa's two co-complainants. In due course, the NLRC reinstated the three complainants with backwages and awarded 25% of the backwages as attorney’s fees, 15% for Atty. John and 10% for Eric, a non-lawyer. When WXT appealed to the Court of Appeals, Atty. John questioned Eric’s continued appearance before that court on Luisa’s behalf, he not being a lawyer. Is Eric's appearance before the Court of Appeals valid? (2011 Bar Question)

NOTE: Such person shall have all the rights of a duly authorized member of the Bar to appear in any case in which said government has an interest direct or indirect (RRC, Sec. 33, Rule 138).

Party-Litigant representing himself In civil cases, an individual litigant has the right to conduct his litigation personally. In criminal cases, in grave and less grave offenses, an accused who is a layman must always appear by counsel; he cannot conduct his own defense without violating his right to due process of law.

A: No, because the practice of law is only reserved for those qualified for the same. Eric’s appearance in court on behalf of another is not sanctioned by the rules. A non-lawyer may only be allowed to appear in court if he is representing himself not that of another (RRC, Sec. 34, Rule 138).

NOTE: Where an accused was not duly represented by a member of the Bar during trial, the judgment should be set aside, and the case remanded to the trial court for a new trial (People v. Santocildes, Jr., G.R. No. 109149, Dec. 21, 1999).

Q: Kanlaon Construction and Reluya, et al. cases were assigned before two labor arbiters. The Engineers as co-defendant, without written authority to represent Kanlaon Construction, admitted the complaints against them. By virtue of such, the labor arbiters adjudicated the case in favor of Reluya and the others. Can an engineer represent a co-defendant in a case before the Labor Arbiter?

With regard to a juridical person, it must always appear in court through a duly licensed member of the bar, except before MTC where it may be represented by its agent or officer who need not be a lawyer.

Limits on the appearance of non-lawyers 1. 2.

3.

He should confine his work to non-adversary contentions; He should not undertake purely legal work, such as the examination or cross- examination of witnesses, or the presentation of evidence; and His services should not be habitually rendered. He should not charge or collect attorney’s fees (PAFLU v. Binalbagan Isabela Sugar Co., G.R. No. L-23959, Nov. 29,1971).

A: No, the appearance of the engineer on behalf of Kanlaon Construction required written proof of authorization. It was incumbent upon the arbiters to ascertain this authority especially since both engineers were named co-respondents in the cases before the arbiters. Absent this authority, whatever statements and declarations the engineers made before the arbiters could not bind Kanlaon.

NON-LAWYERS IN ADMINISTRATIVE TRIBUNAL 1.

Under the Cadastral Act, a non-lawyer can represent a claimant before the Cadastral Court. (Act No. 2259, Sec. 9)

Nevertheless, even assuming that the engineers were authorized to appear as representatives of Kanlaon, they could bind the latter only in procedural matters before the arbiters and the Commission. Kanlaon's liability arose from engineer’s alleged promise to pay. A promise

Under the Labor Code, non-lawyers may appear before the NLRC or any Labor Arbiter, if: a. They represent themselves; or b. They represent their organization or members

7

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics to pay amounts to an offer to compromise and requires a special power of attorney or the express consent of Kanlaon. The authority to compromise cannot be lightly presumed and should be duly established by evidence (Kanlaon Construction v. NLRC, G.R. No. 126625, Sept. 18, 1997).

Directors of KWD. Dela Peña board appointed respondents Atty. N, V and M as private collaborating counsels for all cases of KWD and its Board of Directors, under the direct supervision and control of Atty. I. Meanwhile, the OGCC had approved the retainership contract of Atty. C as new legal counsel of KWD and stated that the retainership contract of Atty. I had expired. The termination of Atty. I’s contract was said to be justified by the fact that the Local Water Utilities Administration had confirmed the Yaphockun board as the new Board of Directors of KWD and that said board had terminated Atty. I’s services and requested to hire another counsel. Complainants then filed a disbarment complaint against counsels V and M alleging that respondents acted as counsel for KWD without legal authority. Are their contentions tenable?

PROCEEDINGS WHERE LAWYERS ARE PROHIBITED FROM APPEARING Proceedings where lawyers are prohibited from appearing 1.

Proceedings before the Small Claims Court - No attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is the plaintiff or defendant (Rule of Procedure for Small Claims Cases, Sec. 17).

A: Yes. Attys. N, V and M had no valid authority to appear as collaborating counsels of KWD. Nothing in the records shows that Atty. N was engaged by KWD as collaborating counsel. There is no proof that the OGCC and COA approved their engagement as legal counsel or collaborating counsel. In the case of Atty. I, he also appeared as counsel of KWD without authority, after his authority as its counsel had expired.

NOTE: If the court determines that a party cannot properly present his/her claim or defense and needs assistance, the court may, in its discretion, allow another individual who is not an attorney to assist that party upon the latter’s consent (Rule of Procedure for Small Claims Cases, Sec. 17).

2.

Proceedings before the Katarungang Pambarangay - During the pre-trial conference under the Rules of Court, lawyers are prohibited from appearing for the parties. Parties must appear in person only except minors or incompetents who may be assisted by their next of kin who are not lawyers (P.D. No. 1508, Formerly Sec. 9; Local Government Code of 1991, R.A. 7160, Sec. 415).

Under Section 27, Rule 138 of the Rules of Court, a member of the Bar may be disbarred or suspended from his office as attorney by the Supreme Court for corruptly or willfully appearing as an attorney for a party to a case without authority to do so. Disbarment, however, is the most severe form of disciplinary sanction, and, as such, the power to disbar must always be exercised with great caution, and should be imposed only for the most imperative reasons and in clear cases of misconduct affecting the standing and moral character of the lawyer as an officer of the court and member of the Bar. Accordingly, disbarment should not be decreed where any punishment less severe such as a reprimand, suspension or fine, would accomplish the end desired (Vargas v. Atty. Ignes, Atty. Mann, Atty. Viajar and Atty. Nadua, A.C. No. 8096, July 5, 2010).

SANCTIONS FOR PRACTICE OR APPEARANCE WITHOUT AUTHORITY Remedies against unauthorized practice of law (ICEDA) 1. 2. 3.

4. 5.

Petition for Injunction; Contempt of court; Criminal complaint for Estafa against a person who falsely represented himself to be an attorney to the damage of a party; Disqualification and complaints for disbarment; or Administrative complaint against the erring lawyer or government official.

NOTE: In any case, an unauthorized appearance of an attorney may be ratified by the client either expressly or impliedly. Ratification retroacts to the date of the lawyer’s first appearance and validates the action taken by him (Sps. Agbulos v. Gutierrez, G.R. No. 176530, June 16, 2009).

PERSONS NOT LAWYERS

Q: KWD, a GOCC, hired respondent, Atty. I, as private legal counsel for one (1) year effective with the consent of the Office of the Government Corporate Counsel (OGCC) and the Commission on Audit (COA). The controversy erupted when two (2) different groups, herein referred to as the Dela Peña board and Yaphockun board, laid claim as the legitimate Board of UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Remedies against unauthorized practice of law by persons not lawyers (ICE) 1. 2. 3.

8

Petition for Injunction; Contempt of court; Criminal complaint for Estafa against a person who

PRACTICE OF LAW protect or vindicate the dignity and power, either by fine payable to the government or by imprisonment, or both, it is deemed a judgment in criminal case.

falsely represented himself to be an attorney to the damage of a party; Sanctions for persons who are not lawyers

Where the punishment is by fine directed to be paid to a party in the nature of damages for the wrong inflicted, or by imprisonment as coercive measure to enforce the performance of some act for the benefit of the party or in aid of the final judgment or decree rendered in his behalf, the contempt judgment will, if made before final decree, be treated as in the nature of an interlocutory order.

They shall be punished with contempt of court, severe censure and three (3) months imprisonment because of the highly fraudulent and improper conduct tending directly to impede, obstruct, degrade, and make a mockery of the administration of justice (Manangan v. CFI, G.R. No. 82760, Aug. 30,1990; Lapena, 2009).

Two-fold aspect of contempt power (1998 Bar Question)

NOTE: A Disbarred lawyer still appearing in court is guilty of indirect contempt (Lemoine v. Atty. Balon, Jr., A.C. No. 5829, Oct. 28, 2003).

1.

Power of contempt v. Power to disbar

2.

The power to punish for contempt and the power to disbar are separate and distinct, and that the exercise of one does not exclude the exercise of the other (People v. Godoy, G.R. Nos. 115908-09, Mar. 29, 1995).

NOTE: The question of whether the contempt committed is civil or criminal, does not affect the jurisdiction or the power of a court to punish the same (Halili v. CIR, G.R. No. L-24864, Nov. 19, 1985).

Q: Dela Cruz misrepresented himself as a lawyer in the application for habeas corpus of Gamido. What punishment should the court impose on Dela Cruz?

A practicing lawyer and officer of the court facing contempt proceedings cannot just be allowed to voluntarily retire from the practice of law which would negate the inherent power of the court to punish him for contempt (Montecillo v. Gica, 60 SCRA 234).

A: The Court declared him guilty of indirect contempt for maliciously and falsely portraying himself as a member of the bar, appearing in court and filing pleadings (In the Matter of the Application for Habeas Corpus of Maximino Gamido; Gamido v. New Bilibid Prison, G.R. 146783, July 29, 2002).

Q: A judge cited complainant, a driver at the Engineering Department of the Makati City Hall, in contempt for using the former’s parking space, and refused to accept the driver’s apology. He sentenced the driver to five (5) days imprisonment and a fine of (P1,000.00). Is the judge administratively liable for grave abuse of authority in citing the driver for contempt of court?

Kinds of contempt 1.

2.

3.

4.

The proper punishment of the guilty party for his disrespect to the court or its order; and To compel his performance of some act or duty required of him by the court which he refuses to perform.

Direct – Consists of misbehavior in the presence of or so near a court or judge as to interrupt or obstruct the proceedings before the court or the administration of justice; punished summarily. Indirect – One committed away from the court involving disobedience of or resistance to a lawful writ, process, order, judgment or command of the court, or tending to belittle, degrade, obstruct, interrupt or embarrass the court; not summary in nature. Civil – Is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein. It is remedial in nature. Criminal – Conduct directed against the authority and dignity of a court or of a judge, as in unlawfully assailing or discrediting the authority or dignity of a court or of a judge, or in doing a duly forbidden act. Intent is necessary.

A: Yes. The Court does not see how the improper parking by the driver could even in the remotest manner disrupt the speedy administration of justice. At most, it would cause the Judge inconvenience or annoyance, but still, this does not fall under any of the acts for which a person could be cited for contempt. Neither does it appear from the records, nor from the evidence presented, that the complainant intended any disrespect toward respondent Judge. Worse, the Judge immediately detained the driver, thereby preventing him from resorting to the remedies provided under the Rules of Court. Such abusive behavior on the part of respondent judge fails to show his integrity, which is essential not only to the proper discharge of the judicial office, but also to his personal demeanor (Nunez v. Ibay, A.M. No. RTJ-06-1984, June 30, 2009).

NOTE: Where the punishment imposed, whether against a party to a suit or a stranger, is wholly or primarily to

9

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics Q: Balajadia filed a criminal case against petitioners. In paragraph 5 of the complaint-affidavit, Balajadia appeared to have asserted that he is a "practicing lawyer”. However, certifications issued by the Office of the Bar Confidant and the Integrated Bar of the Philippines showed that he has never been admitted to the Philippine Bar. Hence, petitioners filed a case against him claiming that he is liable for indirect contempt for misrepresenting himself as a lawyer. Balajadia, on his defense, claimed that the allegation that he is a practicing lawyer was an honest mistake. He stated that the secretary of Atty. Aquino prepared the subject complaint-affidavit copying in verbatim paragraph 5 of Atty. Aquino’s complaint-affidavit. Hence, it was inadvertently alleged that respondent is a “practicing lawyer in Baguio City” which statement referred to the person of Atty. Aquino and his law office address. Is Balajadia liable for indirect contempt?

PROHIBITION OR DISQUALIFICATION OF FORMER GOVERNMENT ATTORNEYS Prohibition or disqualification of former government attorneys A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service (CPR, Rule 6. 03, Canon 6). The evil sought to be avoided by this provision is the possibility of a lawyer who just retired, resigned or separated from the government of using his influence for his own private benefit (Antiquiera, 1992). Theories relating to the disqualification of former government lawyers in representing a client on a matter in which they intervened when they were in office

A: No. Balajadia never intended to represent himself as a lawyer to the public. It was a clear inadvertence on the part of the secretary of Atty. Aquino. The allegation that he is a practicing lawyer cannot, by itself, establish intent as to make him liable for indirect contempt (Tan v. Balajadia, G.R. No. 169517, Mar. 14, 2006).

1.

PUBLIC OFFICIALS AND THE PRACTICE OF LAW

2.

Prohibited acts or omissions of public officers 1.

2.

3.

4.

Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after termination (RA 3019, Sec. 3[d]). Own, control, manage or accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law (RA 6713, Sec. 7[b]). A lawyer shall not, after leaving a government service, accept engagement or employment in connection with any matter in which he had intervened while in said service. (CPR, Rule 6.03). A lawyer should not accept employment as an advocate in any matter upon the merits which he has previously acted in a judicial capacity (CPE, Canon 36).

NOTE: The restriction against a public official from using his public position as a vehicle to promote or advance his private interests extends beyond his tenure on certain matters in which intervened as a public official (Agpalo, 2004).

PUBLIC OFFICIALS WHO CANNOT PRACTICE LAW OR WITH RESTRICTIONS Public officials not allowed to engage in law practice (JOPPCOMS) 1. 2. 3.

NOTE: These prohibitions shall continue to apply for a period of 1 year after resignation, or separation from public office. The 1-year prohibition shall also apply in connection with any matter before the office he used to be with.

4.

5. 6.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Adverse-Interest Conflict – A former government lawyer is enjoined from representing a client in private practice in a matter which is substantially related to another matter which the former dealt with while employed by the government, and if the interests of the current and former clients are adverse. Congruent-Interest Representation Conflict – The lawyer is prohibited from representing a private practice client even if the interests of the government (the former employer) and the new client are entirely parallel (PCGG v. SB, et.al, G.R. No. 151809-12, April 12, 2005).

10

Judges and other officials as employees of the Supreme Court (RRC, Rule 148, Sec. 35). Officials and employees of the OSG. (Ibid.) Government Prosecutors (People v. Villanueva, G.R. No. L-19450, May 27, 1965). President, Vice-President, members of the cabinet, their deputies and assistants (1987 Constitution, Sec. 13, Art VII). Members of the Constitutional Commission (1987 Constitution, Sec. 2, Art IX-A). Ombudsman and his deputies (1987 Constitution,

PRACTICE OF LAW 7. 8.

Sec. 8 [second par.], Art. IX). All governors, city and municipal Mayors (R.A. No. 7160, Sec. 90). Those prohibited by Special law.

Tuguegarao. Taggat Industries was sequestered by the PCGG and thus ceased its operations. As Assistant Provincial Prosecutor, he assigned to conduct the preliminary investigation over a criminal case filed against Taggat Industries. He recommended the filing of 651 informations for violation of the Labor Code. He was charged for violating Rule 15.03 of the Code of Professional Responsibility and for defying the prohibition against private practice of law while working as government prosecutor. Is Atty. Sagucio guilty of engaging in private practice of law while working as an Assistant Provincial Prosecutor?

Restrictions on the practice of law to certain individuals (1992, 2000 Bar Questions) 1.

No Senator or member of the House of Representatives may personally “appear” as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administration bodies (1987 Constitution, Art. VI, Sec. 14). 2. Under the Local Government Code (RA 7160, Sec. 91), Sanggunian members may practice their professions provided that if they are members of the Bar, they shall NOT: a. Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party b. Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office c. Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official d. Use property and personnel of the government except when the Sanggunian member concerned is defending the interest of the government. 3.

4.

A: Yes. “Private practice of law” contemplates a succession of acts of the same nature habitually or customarily holding one’s self to the public as a lawyer. Atty. Sagucio admitted that he rendered his legal services to complainant while working as a government prosecutor. Even the receipts he signed stated that the payments by Taggat were for "Retainer’s fee.” Thus, as correctly pointed out by complainant, Atty. Sagucio clearly violated the prohibition in RA 6713. Atty. Sagucio’s violation of RA 6713 also constitutes a violation of Rule 1.01 of Canon 1, which mandates that “[a] lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.” His admission that he received from Taggat fees for legal services while serving as a government prosecutor is an unlawful conduct, which constitutes a violation of Rule 1.01 (Lim- Santiago v. Saguico, A.C. No. 6705, Mar. 31,2006). NOTE: Violations of RA 6713 are not subject to disciplinary action under the Code of Professional Responsibility unless the violations also constitute infractions of specific provisions of the Code of Professional Responsibility. Certainly, the IBP has no jurisdiction to investigate violations of RA 6713 – the Code of Conduct and Ethical Standards for Public Officials and Employees – unless the acts involved also transgress provisions of the Code of Professional Responsibility.

Under Sec. 1, R.A. 910, as amended, a retired justice or judge receiving pension from the government, cannot act as counsel: a. In any civil case in which the Government, or any of its subdivision or agencies is the adverse party; or b. In a criminal case wherein an officer or employee of the Government is accused of an offense in relation to his office; nor c. Collect any fees for his appearance in any administrative proceedings to maintain an interest adverse to the government, provincial or municipal, or to any of its legally constituted officers (R.A. 910, Sec. 1)

Q: Atty. Eliseo represented Allan in a collection suit against the Philippine Charity Sweepstakes Office (PCSO). After his election as sangguniang bayan member, the court rendered a decision in PCSO’s favor. Still, Atty. Eliseo appeared for Allan in the latter’s appeal, prompting the PCSO to question his right to do so. In response, Atty. Eliseo claimed that the local government code authorizes him to practice law as long it does not conflict with his duties. Is Atty. Eliseo correct? (2011 Bar Question)

Civil service officers and employees without permit from their respective department heads (Noriega v. Sison, G.R. No. L- 24548, Oct. 27, 1983).

A: No, because he cannot appear against a government instrumentality in a civil case.

Q: Atty. Sagucio was the former Personnel Manager and Retained Counsel of Taggat Industries Inc. until his appointment as Assistant Provincial Prosecutor of

NOTE: While certain local elective officials (like governors, mayors, provincial board members and councilors) are expressly subjected to a total or partial proscription to practice their profession or engage in any occupation, no such

11

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics interdiction is made on punong barangay and the members of the Sangguniang Barangay. Expressio unius est exclusio alterius. Since they are excluded from any prohibition, the presumption is that they are allowed to practice their profession. However, he should procure prior permission or authorization from the head of his Department, as required by the Civil Service Regulations (Catu v. Rellosa, A.C. No. 5738, Feb. 19, 2008).

Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly nor willingly promote or sue any groundless, false or unlawful suit, or give aid nor consent to the same; I will delay no man for money or malice and will conduct myself as a lawyer according to the best of my knowledge and discretion, with all good fidelity as well to the courts as to my clients; and I impose upon myself these voluntary obligations without any mental reservation or purpose of evasion. So help me God.

LAWYERS AUTHORIZED TO REPRESENT THE GOVERNMENT Lawyers authorized to represent the government

Q: An administrative complaint was filed against Atty. Contawi for having violated his oath as a lawyer, causing him damage and prejudice. Respondent had undeniably mortgaged and sold the property of his client without the latter's knowledge or consent, facilitated by the use of a falsified Special Power of Attorney. Did respondent violate his lawyer's oath when he mortgaged and sold complainant's property, which was entrusted to him, without the latter's consent?

Solicitor General (Sol Gen) for the National Government, and any person appointed to appear for the government of the Philippines in accordance with law (RRC, Rule 138, Sec. 33). In case of Local Government Units (LGU), they are represented by a legal officer which provides legal assistance or support to the mayor or governor and represents the LGU in all civil actions and special proceedings wherein it or any of its officials are involved in an official capacity (LGC, Sec. 481).

A: Yes. Respondent disposed of complainant's property without his knowledge or consent, and partook of the proceeds of the sale for his own benefit. Respondent's established acts exhibited his unfitness and plain inability to discharge the bounden duties of a member of the legal profession. He failed to prove himself worthy of the privilege to practice law and to live up to the exacting standards demanded of the members of the bar. It bears to stress that the practice of law is a privilege given to lawyers who meet the high standards of legal proficiency and morality. Any violation of these standards exposes the lawyer to administrative liability (Brennisen v. Atty. Contawi, A.C. No. 7481, April 24, 2012).

NOTE: In criminal cases, Sol Gen steps in only when the case has already reached the Court of Appeals. While it is with the lower courts, it is the public prosecutor which represents the government.

Duties of the Solicitor General The Solicitor General, in his discretion, may pursue any of the following actions: 1. Prosecute; 2. Not to prosecute; 3. To abandon a prosecution already started; or 4. To take a position adverse to the People of the Philippines in a criminal case or to that of a government agency or official, when he believes that justice will be served by taking a different stand.

Importance of the lawyer’s oath By taking the lawyer’s oath, a lawyer becomes the guardian of truth and the rule of law and an indispensable instrument in the fair and impartial administration of justice. Good moral character includes, at least, common honesty. Deception and other fraudulent acts are not merely unacceptable practices that are disgraceful and dishonorable; they reveal a basic moral flaw (Olbes v. Deciembre, A.C. No. 5365, Apr. 27, 2005).

Duty of the Solicitor General to represent one party whereby two government agencies are in conflict It is incumbent upon the Solicitor General to present to the court what he considers as would legally uphold the best interest of the government. The other government agency adversely affected, if it still believes in the merits of its case, may appear on its own behalf through its legal officer or representative.

NOTE: The lawyer’s oath is not a mere ceremony or formality for practicing law to be forgotten afterwards nor is it mere words, drift and hollow, but a sacred trust that every lawyer must uphold and keep inviolable at all times.

LAWYER’S OATH I, (name) , of (place of birth) do solemnly swear that I will maintain allegiance to the Republic of the UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

12

DUTIES AND RESPONSIBILITIES OF A LAWYER DUTIES AND RESPONSIBILITIES OF A LAWYER Four-fold duty of a lawyer 6. 1.

2.

3.

4.

Public/Society – He must not undertake any action which violates his responsibility to the society as a whole, he must be an example in the community for his uprightness as a member of the society. The lawyer must be ready to render legal aid, foster legal reforms, be guardian of due process, and aware of his special role in the solution of special problems and be always ready to lend assistance in the study and solution of social problems (CPR, Canon 1-6). Bar/Legal Profession – Observe candor, fairness, courtesy and truthfulness in his conduct towards other lawyers, avoid encroachment in the business of other lawyers and uphold the honor of the profession (CPR, Canon 7-9). Courts – A lawyer must maintain towards the court a respectful attitude, defend against unjust criticisms, uphold the court’s authority and dignity, obey court orders and processes, assists in the administration of justice (CPR, Canon 1013). Clients – The lawyer owes entire devotion to the interest of his client, warm and zeal in the maintenance of the defense of his rights and exertion of utmost learning ability to the end that nothing be taken or withheld from his client except in accordance with law. He owes a duty of competent and zealous representation to the client, and should preserve his client’s secrets, preserve his funds and property and avoid conflicts of interest (CPR, Canon 14- 22).

7.

8.

9.

causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law; To maintain inviolate the Confidence and at every peril to himself, to preserve the secrets in connection with his client and to accept no compensation in connection with his client’s business except from him or with his knowledge and approval; To abstain from all Offensive personality and to advance no fact prejudicial to the honor and reputation of a party or witness unless required by the justice of the cause with which he is charged; Never to Reject, for any consideration personal to himself, the cause of the defenseless or oppressed; and In the Defense of a person accused of a crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits to the end that no person may be deprived of life, liberty, but by due process of law (RRC, Rule 138, Sec. 20).

Privileges of a lawyer (PSP-IS-12) 1. 2. 3. 4.

Duties of attorneys under the Rules of Court (2006 Bar Question)

5.

The following are the duties of an attorney under the Rules of Court (ADA- RECORD): 1. To maintain Allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines; 2. Not to encourage either the commencement or the continuance of an action or proceeding, or Delay any man’s cause, from any corrupt motive or interest; 3. To counsel and maintain such Actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law; 4. To observe and maintain the Respect due to the courts of justice and judicial officers; 5. To Employ, for the purpose of maintaining the

6.

7.

To Practice law during good behavior before any judicial, quasi-judicial, or administrative agency; First one to Sit in judgment on every case, to set the judicial machinery in motion; Enjoys the Presumption of regularity in the discharge of his duty; He is Immune, in the performance of his obligations to his client, from liability to third persons, insofar as he does not materially depart from his character as a quasi-judicial officer; His Statements, if relevant, pertinent or material to the subject of judicial inquiry are absolutely privileged regardless of their defamatory tenor and of the presence of malice; 1st grade civil service eligibility for any position in the classified service in the government the duties of which require knowledge of law; and 2nd grade civil service eligibility for any other governmental position, which does not prescribe proficiency in law as a qualification. CANONS OF PROFESSIONAL RESPONSIBILITY

1.

13

CHAPTER 1 LAWYER AND SOCIETY Canons 1-6 Uphold the Constitution and obey the laws of the land and legal processes UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics 2. 3. 4. 5.

6.

7. 8.

9.

10. 11.

12. 13.

14. 15. 16. 17. 18. 19. 20. 21. 22.

Make legal services available in an efficient and convenient manner Use of true, honest, fair, dignified and objective information in making known legal services Participate in the improvement of the legal system Keep abreast of legal development and participate in continuing legal education program and assist in disseminating information regarding the law and jurisprudence Applicability of the CPR to lawyers in the government service

First and most important duty of a lawyer The first and most important duty of a lawyer is his duty to the court. The lawyer is an officer of the court who sets the judicial machinery with the main mission of assisting the court in the administration of justice. His public duties take precedence over his private duties. Q: After representing Lenie in an important lawsuit from 1992 to 1995, Atty. Jennifer lost touch of her client. Ten years later in 2005, Evelyn asked Atty. Jennifer to represent her in an action against Lenie. Such action involved certain facts, some confidential, to which Atty. Jennifer was privy because she handled Lenie's old case. Can Atty. Jennifer act as counsel for Evelyn? (2011 Bar Question)

CHAPTER 2 THE LAWYER AND THE LEGAL PROFESSION Canons 7-9 At all times uphold integrity and dignity of the profession and support the activities of the IBP Conduct himself with courtesy, fairness and candor toward his colleagues and avoid harassing tactics against opposing counsel Not to directly or indirectly assist in the unauthorized practice of law

A: No. A lawyer shall preserve the confidences or secrets of his client even after the attorney-client relation is terminated. He shall not reveal the confidence or secrets of his client except upon the instances provided for by the rules (CPR, Canon 21, Rule 21.01).

CHAPTER 3 THE LAWYER AND THE COURTS Canons 10-13 Owes candor, fairness and good faith to the court Observe and maintain the respect due to the courts and judicial officers and insist in similar conduct Duty to assist in the speedy and efficient administration of justice Rely upon the merits of his cause, refrain from any impropriety which tends to influence courts, or give the appearance of influencing the courts

DUTIES AND RESPONSIBILITIES OF A LAWYER TO SOCIETY Canon 1 A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal processes. Two-fold duty under Canon 1 1. 2.

CHAPTER 4 THE LAWYER AND THE CLIENT Canons 14-22 Not to refuse his services to the needy Observe candor, fairness and loyalty in all his dealings and transactions with clients Hold in trust all the moneys and property of his client that may come to his possession Owes fidelity to client’s cause and be mindful of the trust and confidence reposed in him Serve client with competence and diligence Represent client with zeal and within the bounds of law Charge only fair and reasonable fees Preserve the confidence and secrets of client even after the attorney-client relation is terminated Withdraw services only for good cause and upon notice

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Obey the laws and the legal processes Inspire others to maintain respect and obedience thereto.

NOTE: The portion of Canon 1, which calls for lawyers to “promote respect for law and for legal processes”, is a call to uphold the ‘Rule of Law’ (Funa, 2009).

Concept of “Rule of Law” “The supremacy of the law” provides that decisions should be made by the application of known legal principles or laws without the intervention of discretion in their application (Black’s Law Dictionary). NOTE: A lawyer’s oath to uphold the cause of justice is superior to his duty to his client; its primacy is indisputable (Cobb-Perez v. Lantin, No. L-22320, July 29, 1968).

Q: Peter Donton filed a complaint against Atty. Tansingco and others, as the notary public who

14

DUTIES AND RESPONSIBILITIES OF A LAWYER notarized the Occupancy Agreement, for estafa thru falsification of public document. Atty. Tansingco in his complaint stated that he prepared and notarized the Occupancy Agreement at the request of Mr. Stier, an owner and long-time resident of a real property located at Cubao, Quezon City. Since Mr. Stier is a U.S. Citizen and thereby disqualified to own real property in his name, he agreed that the property be transferred in the name of Mr. Donton, a Filipino. Donton averred that Atty. Tansingco’s act of preparing the Occupancy Agreement, despite knowledge that Stier is a foreign national, constitutes serious misconduct and is a deliberate violation of the Code. Donton prayed that Atty. Tansingco be disbarred. Is Atty. Tansingco guilty of serious misconduct?

Rule 1.01, Canon 1, A lawyer shall not engage in unlawful, dishonest, immoral and deceitful conduct. Definitions: 1.

Deceitful conduct

An act that has the proclivity for fraudulent and deceptive misrepresentation, artifice or device that is used upon another who is ignorant of the fact, to the prejudice and damage of the party imposed upon. (CPR Annotated, PhilJA) 2.

Unlawful conduct

A transgression of any provision of law, which need not be a penal law. The presence of evil intent on the part of the lawyer is not essential in order to bring his act or omission within the terms of this Rule.

A: Yes. Atty. Tansingco is liable for violation of Canon 1 and Rule 1.02 of the Code. A lawyer should not render any service or give advice to any client, which will involve defiance of the laws which he is bound to uphold and obey. Atty. Tansingco had sworn to uphold the Constitution. Thus, he violated his oath and the Code when he prepared and notarized the Occupancy Agreement to evade the law against foreign ownership of lands. Atty. Tansingco used his knowledge of the law to achieve an unlawful end. Such an act amounts to malpractice in his office, for which he may be suspended (Donton v. Atty. Tansingco, A.C. No. 6057, June 27, 2006).

3.

Immoral conduct

A conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community. To warrant disciplinary action, the act must not only be merely immoral but GROSSLY IMMORAL. NOTE: Grossly immoral conduct is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree (Figueroa v. Barranco, SBC Case No. 519, July 31, 1997).

Q: Prosecutor Coronel entered his appearance on behalf of the State before a Family Court in a case for declaration of nullity of marriage, but he failed to appear in all the subsequent proceedings. When required by the Department of Justice to explain, he argued that the parties in the case were ably represented by their respective counsels and that his time would be better employed in more substantial prosecutorial functions, such as investigations, inquests and appearances in court hearings. Is Atty. Coronel’s explanation tenable? (2006 Bar Question)

Instances of gross immorality and the resulting consequences 1.

2.

A: Atty. Coronel’s explanation is not tenable. The role of the State’s lawyer in nullification of marriage cases is that of protector of the institution of marriage (Art 48, FC). “The task of protecting marriage as an inviolable social institution requires vigilant and zealous participation and not mere pro forma compliance” (Malcampo-Sin v. Sin, G.R. No. 137590, Mar. 26, 2001). This role could not be left to the private counsels who have been engaged to protect the private interest of the parties.

3.

4.

5.

15

Abandonment of wife and cohabiting with another woman. DISBARRED (Obusan v. Obusan, Jr., Adm. Case No. 1392, Apr. 2, 1984). A lawyer who had carnal knowledge with a woman through a promise of marriage which he did not fulfill. DISBARRED (In re: Disbarment of Armando Puno, A.C. No. 389, Feb. 28, 1967). Seduction of a woman who is the niece of a married woman with whom respondent lawyer had an adulterous relation. DISBARRED (Royong v. Oblena, A.C. No. 376, Apr. 30, 1963). Lawyer arranging marriage of his son to a woman with whom the lawyer had illicit relations. DISBARRED (Mortel v. Aspiras, A.M. No. 145, Dec. 28, 1956). Lawyer inveigling a woman into believing that they have been married civilly to satisfy his carnal desires. DISBARRED (Terre v. Terre, A.M. No. 2349, July 3, 1992). UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics 6.

7.

8.

9.

10.

11.

12.

13.

Lawyer taking advantage of his position as chairman of the college of medicine and asked a lady student to go with him to Manila where he had carnal knowledge of her under threat that if she refused, she would flunk in all her subjects. DISBARRED (Delos Reyes v. Aznar, A.M. No. 1334, Nov. 28, 1989). Bigamy perpetrated by the lawyer. DISQUALIFIED FROM ADMISSION TO THE BAR (Royong vs. Oblena, A.C. No. 376, Apr. 30, 1963). Concubinage coupled with failure to support illegitimate children. SUSPENDED INDEFINITELY (Laguitan v. Tinio, A.M. No. 3049, Dec. 4, 1989). Maintaining adulterous relationship with a married woman. SUSPENDED INDEFINITELY (Cordova v. Cordova, A.M. No. 3249, Nov. 29, 1989). A retired judge who penned a decision 7 months after he retired, antedating the decision and forcing his former court staff to include it in the expediente of the case. DISBARRED (Radjaie v. Alovera, A.C. No. 4748, Aug. 4, 2000). Forging a Special Power of Attorney. SUSPENDED FOR 3 YEARS (Rural Bank of Silay, Inc. v. Pilla, A.C. No. 3637, Jan. 24, 2001). Attempting to engage in an opium deal SUSPENDED FOR 1 YEAR (Piatt v. Abordo, 58 Phil. 350, Sept. 1, 1933). Facilitating the travel of a person to the U.S. using spurious travel documents. DISBARRED (Sebastian v. Calis, A.C. No. 5118, Sept. 9, 1999).

violated Canon 1 of the Code of Professional Responsibility? A: Yes. Atty. Velasquez’ act of converting his secretary into a mistress is grossly immoral which no civilized society in the world can countenance. The subsequent detention and torture of the complainant is gross misconduct only a beast may be able to do. Certainly, the Atty. Velasquez had violated Canon 1 of the Code of Professional Responsibility. When a lawyer’s moral character is assailed, such that his right to continue practicing his cherished profession is imperiled, it behooves him to meet the charges squarely and present evidence, to the satisfaction of the investigating body and this Court, that he is morally fit to keep his name in the Roll of Attorneys. Atty. Velasquez has not discharged the burden (Mecaral v. Velasquez, A.C. No. 8392, June 29, 2010). Q: An administrative complaint for disbarment against Atty. Iris was filed for allegedly carrying an immoral relationship with Carlos, husband of complainant Leslie. Atty. Iris contended that her relationship with Carlos is licit because they were married. And when she discovered Carlos’ true civil status, she cut off all her ties with him. Is Atty. Iris guilty of committing gross immoral conduct warranting her disbarment? A: No, her relationship with Carlos, clothed as it was with what Atty. Iris believed was a valid marriage, cannot be considered immoral. Immorality connotes conduct that shows indifference to the moral norms of the community. Moreover for such conduct to warrant disciplinary action, the same must be “grossly immoral”, that is it must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree. Atty. Iris’ act of immediately distancing herself from Carlos upon discovering his true civil status belies that alleged moral indifference and proves that she had no intention of flaunting the law and the high moral standard of the legal profession (Ui v. Atty. Bonifacio, A.C. No. 3319, June 8, 2000).

Q: Atty. Danilo Velasquez was charged before IBP Committee on Bar Discipline with Gross Misconduct and Gross Immoral Conduct by complainant Mecaral. Complainant Mecaral was his secretary and she became his lover and common-law wife. Atty. Velasquez then brought her to the mountainous Upper San Agustin in Caibiran, Biliran where he left her with a religious group known as the Faith Healers Association of the Philippines, of which he was the leader. Although he visited her daily, his visits became scarce, prompting her to return home to Naval, Biliran. Furious, Atty. Velasquez brought her back to San Agustin where, on his instruction, his followers tortured, brainwashed and injected her with drugs. When she tried to escape, the members of the group tied her spread-eagled to a bed. Made to wear only a T- shirt and diapers and fed stale food, she was guarded 24 hours a day by the women members. Her mother sought the help of the Provincial Social Welfare Department which immediately dispatched two women volunteers to rescue her. The religious group refused to release her without the instruction of Atty. Velasquez. Is Atty. Velasquez guilty of gross immoral conduct and UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Acts NOT constituting gross immorality 1. 2. 3.

Stealing a kiss from a client (Advincula v. Macabata, A.C. No. 7204, Mar. 7, 2007). Live-in relationship involving two unmarried persons. Failure to pay a loan GR: A lawyer may not be disciplined for failure to

16

DUTIES AND RESPONSIBILITIES OF A LAWYER on and devoid of any deceit on the part of the former, is neither so corrupt nor so unprincipled as to warrant the imposition of disciplinary sanction against him, even if as a result of such relationship a child was born out of wedlock.

pay a loan. The proper remedy is the filing of an action for collection of a sum of money in regular courts (Toledo v. Abalos, A.C. No. 5141, Sept. 29, 1999).

Morality v. Immoral conduct

XPN: A deliberate failure to pay just debts and the issuance of worthless checks (Lao v. Medel, A.C. No. 5916, July 1, 2003).

MORALITY Morality as understood in law is a human standard based on natural moral law which is embodied in man’s conscience and which guides him to do good and avoid evil.

Having incurred just debts, a lawyer has the moral duty and legal responsibility to settle them when they become due. He should comply with his just contractual obligations, act fairly and adhere to high ethical standards to preserve the court’s integrity, since he is an employee thereof (Cham v. Paita-Moya, A.C. No.7494, June 27, 2008). NOTE: Just debts include unpaid rentals, electric bills, claims adjudicated by a court of law, and claims the existence and justness which are admitted by the debtor (Cham v. Paita-Moya, A.C. No.7494, June 27, 2008).

IMMORAL CONDUCT Immoral conduct has been defined as that conduct which is willful, flagrant, or shameless and which shows a moral indifference to the opinion of the good and respectable members of the community (Arciga v. Maniwang, A.M. No. 1608, Aug. 14, 1981).

Q: Catherine and Atty. Rongcal maintained an illicit affair. Catherine filed a case for disbarment against Atty. Rongcal based on gross immoral conduct alleging that he misrepresented himself to be single when he was in fact married, and due to the false pretenses she succumbed to his sexual advances. Will her petition prosper?

Q: Patricia and Simeon were teen sweethearts. It was after their child was born that Simeon first promised he would marry her after he passes the bar examinations. Their relationship continued and Simeon allegedly made more than twenty or thirty promises of marriage. Patricia learned that Simeon married another woman. Meanwhile, Simeon successfully passed the 1970 bar examinations after four attempts. But before he could take his oath, Patricia filed a petition to disqualify Simeon to take the Lawyer’s Oath on the ground of gross immoral conduct. Does the act of Simeon in engaging in premarital relations with Patricia and making promises to marry her constitute gross immoral conduct?

A: Yes. Good moral character is a continuing condition in a privilege of law practice. The mere fact of sexual relation between two unmarried adults is not sufficient to warrant administrative sanction for such illicit behavior, it is with respect to betrayal of the marital vow of fidelity. Atty. Rongcal is guilty of immorality in violation of Rule 1.01 that a lawyer should not engage in unlawful, dishonest, immoral or deceitful conduct. But his remorse over his indiscretion and the fact of ending the illicit relationship mitigates the liability. Hence a penalty of imposing a fine will suffice with a warning that the same will be dealt with more severely (Vitug v. Rongcal, A.C. No. 6313, September 7, 2006).

A: The SC ruled that the facts do not constitute gross immoral conduct warranting a permanent exclusion of Simeon from the legal profession. His engaging in premarital sexual relations with complainant and promises to marry suggests a doubtful moral character on his part but the same does not constitute grossly immoral conduct. The Court has held that to justify suspension or disbarment the act complained of must not only be immoral, but grossly immoral. A grossly immoral act is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree. It is willful, flagrant, or shameless act, which shows a moral indifference to the opinion of respectable members of the community (Figueroa v. Barranco, Jr., G.R. No. 97369, July 31, 1997).

NOTE: Any errant behavior on the part of a lawyer, be it in his public or private activities, which tends to show him deficient in moral character, honesty, probity or good demeanor, is sufficient to warrant his suspension or disbarment (Tiong vs. Atty. Florendo, A.C. No. 4428, Dec. 12, 2011).

Moral turpitude Moral turpitude imports an act of baseness, vileness or depravity in the duties which one person owes to another or to society in general which is contrary to the usual accepted and customary rule of right and duty which a person should follow. The question as to whether an offense involves moral turpitude is for the

NOTE: Mere intimacy between a man and woman, both of whom possess no impediment to marry, voluntarily carried

17

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics Supreme Court to decide.

from each other and either one could have a live-in partner with full consent of the other, is contrary to law and morals. The ratification by a notary public who is a lawyer of such illegal or immoral contract or document constitutes malpractice or gross misconduct in office. He should at least refrain from its consummation (In Re: Santiago, A.C. No. 923, June 21, 1940; Panganiban v. Borromeo, 58 Phil. 367; In Re: Bucana, A.C. No. 1637, July 6, 1976).

Examples of acts involving moral turpitude 1.

Conviction of estafa and/or BP 22. DISBARRED (In the Matter of Disbarment Proceedings v. Narciso N. Jaramillo, A.C. No. 229, Apr. 30, 1957). 2. Conviction of bribery/ attempted bribery. DISBARRED (In Re: Dalmacio De los Angeles, A.C. No. L-350, Aug. 7,1959; 7 C.J.S., p. 736; 5 Am. Jur. p. 428). 3. Conviction of murder. DISBARRED (In Re: Disbarment Proceedings Against Atty. Diosdado Q. Gutierrez, A.C. No. L- 363, July 31, 1962). 4. Conviction of homicide. DISBARRED (Soriano v. Dizon, A.C. No. 6792, Jan. 25, 2006). 5. Conviction of illegal marriage before admission to the bar. DISQUALIFIED FROM BEING ADMITTED TO THE BAR (Villasanta v. Peralta, 101 Phil.313, Apr. 30, 1957). 6. Conviction of falsification of public document. REMOVED FROM HIS OFFICE/NAME ERASED FROM ROLL OF ATTORNEYS (Ledesma de JesusParas v. Quinciano Vailoces, A.C. No. 439, Apr. 12, 1961). 7. Conviction of estafa through falsification of public document. DISBARRED (Villanueva v. Sta. Ana, CBD Case No. 251, July 11, 1995). 8. Conviction of abduction. SUSPENDED FROM OFFICE FOR 1 YEAR (In Re Basa, 41 Phil. 275, Dec. 7, 1920). 9. Conviction of concubinage. SUSPENDED FROM OFFICE FOR 1 YEAR (In re Isada, 60 Phil. 915, Nov. 16, 1934). 10. Conviction of smuggling. DISBARRED (In re Rovero, A.C. No. 126, Oct. 24, 1952).

Rule 1.03, Canon 1, CPR A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man’s cause. The rule “barratry”, chasing”.

Crime of maintenance A lawyer owes to society and to the court the duty not to stir up litigation. Barratry v. Ambulance chasing (1993 Bar Question) BARRATRY An offense of frequently exciting and stirring up quarrels and suits, either at law or otherwise; lawyer’s act of fomenting suits among individuals and offering his legal services to one of them. Barratry is not a crime under the Philippine laws. However, it is proscribed by the rules of legal ethics.

Rule 1.02, Canon 1 A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. (1994, 1998 Bar Questions)

AMBULANCE CHASING An act of chasing victims of accidents for the purpose of talking to the said victims (or relatives) and offering his legal services for the filing of a case against the person(s) who caused the accident(s). It has spawned a number of recognized evils such as (FSMD): 1.

Q: Atty. Asilo, a lawyer and a notary public, notarized a document already prepared by spouses Roger and Luisa when they approached him. It is stated in the document that Roger and Luisa formally agreed to live separately from each other and either one can have a live-in partner with full consent of the other. What is the liability of Atty. Asilo, if any? (1998 Bar Question)

2. 3.

A: Atty. Asilo may be held administratively liable for violating Rule 1.02 of the CPR - a lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. An agreement between two spouses to live separately UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

is aimed against the practice of “stirring up litigation” and “ambulance

4.

18

Fomenting of litigation with resulting burdens on the courts and the public; Subordination of perjury; Mulcting of innocent persons by judgments, upon manufactured causes of action; and Defrauding of injured persons having proper causes of action but

DUTIES AND RESPONSIBILITIES OF A LAWYER controversy and a predator of conflict.

ignorant of legal rights and court procedures by means of contracts which retain exorbitant percentages of recovery and illegal charges for court costs and expenses and by settlement made for quick returns of fees and against just rights of the injured persons (Hightower v. Detroit Edison Co. 247 NW 97, 1993).

The rule requires that lawyers encourage settlement only when the same is fair. It should be noted that the duty and the right of the lawyer is limited to encouraging the client to settle. Ultimately, however, the final decision to settle a claim rests upon the client. Q: Jon de Ysasi III was employed by his father, in their farm in Negros Occidental. During the entire period of Jon de Ysasi III's illnesses, his father took care of his medical expenses and Jon de Ysasi III continued to receive compensation. However, later on, without due notice, his father ceased to pay Jon de Ysasi III’s salary. Jon de Ysasi III made oral and written demands from Atty. Sumbingco (Jon de Ysasi's auditor and legal adviser) for an explanation for the sudden withholding of his salary, as well as for the remittance of his salary. Both demands, however, were not acted upon. Jon de Ysasi III filed a case in court. Can the lawyers who have been employed by the parties be admonished for not trying to reconcile the parties before the filing of suit?

NOTE: Volunteer advice to bring lawsuit comes within the prohibition, except where ties of blood, relationship and trust make it a duty to do so.

Q: Atty. Melissa witnessed the car accident that resulted in injury to Manny, a friend of hers. While visiting him at the hospital, she advised him about what action he needed to take regarding the accident. Is Atty. Melissa subject to disciplinary action if she eventually handles the case for him? (2011 Bar Question)

A: Yes. The conduct of the respective counsel of the parties, as revealed by the records, sorely disappoints the Court and invites reproof. Both counsels may well be reminded that their ethical duty as lawyers to represent their clients with zeal goes beyond merely presenting their clients' respective causes in court. It is just as much their responsibility, if not more importantly, to exert all reasonable efforts to smooth over legal conflicts, preferably out of court and especially in consideration of the direct and immediate consanguineous ties between their clients. Once again, the useful function of a lawyer is not only to conduct litigation but to avoid it whenever possible by advising settlement or withholding suit. He is often called upon less for dramatic forensic exploits than for wise counsel in every phase of life. He should be a mediator for concord and a conciliator for compromise, rather than a virtuoso of technicality in the conduct of litigation (De Ysasi v. NLRC, G.R. No. 104599, Mar. 11, 1994).

A: No. It is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases where ties of blood, relationship or trust make it his duty to do so (CPE, Canon 28). In the case at hand, since Atty. Melissa is a friend of the injured person, she may not be admonished for extending some legal advice to a friend in need. Impropriety of voluntary giving of advice It is improper to voluntarily give legal advice when the lawyer, in giving such, is motivated by a desire to obtain personal benefit, secure personal publicity, or cause legal action to be taken merely to harass or injure another.

EFFICIENT AND CONVENIENT LEGAL SERVICES

Rule 1.04, Canon 1 A lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement.

Canon 2 A lawyer shall make his legal services available in an efficient and convenient manner compatible with the independence, integrity and effective-ness of the profession.

It is the duty of the lawyer to temper his client’s propensity to litigate and resist his client’s whims and caprices for the lawyer also owes duty to the court. A lawyer should be a mediator for concord and a conciliator for compromise rather than an initiator of

The rationale of this is that it is the lawyer’s prime duty to see to it that justice is accorded to all without

19

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics discrimination.

lawyers and professional partnerships. PAO, DOJ or the accredited legal aid clinic shall issue a certification that services were rendered by the lawyer or the professional partnership under this act. The certification shall include the cost of the actual services given.

Rule 2.01, Canon 2 A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed. Definitions 1.

Incentives to lawyers giving free service

Defenseless

A lawyer or professional partnerships rendering actual free legal services shall be entitled to an allowable deduction from the gross income, the amount that could have been collected for the actual free legal services rendered or up to ten percent (10%) of the gross income derived from the actual performance of the legal profession, whichever is lower: Provided, That the actual free legal services herein contemplated shall be exclusive of the minimum sixty (60)-hour mandatory legal aid services rendered to indigent litigants as required under the Rule on Mandatory Legal Aid Services for Practicing Lawyers, under BAR Matter No. 2012, issued by the Supreme Court (RA 9999, Sec. 5).

Those who are not in a position to defend themselves due to poverty, weakness, ignorance or other similar reasons. 2.

Oppressed

Those who are the victims of the cruelty, unlawful, exaction, domination or excessive use of authority. NOTE: A lawyer so appointed as counsel for an indigent prisoner, as the Canons of Professional Ethics demands, should always “exert his best efforts” in the indigent’s behalf (People v. Estebia, G.R. No. L-26868, Feb. 27, 1969). The inability to pay for legal services is not a valid reason to refuse acceptance of a case. This is because the profession is a branch of the administration of justice and not a mere money-getting trade. (CPR Annotated, PhilJA)

Salient Features of RA 9999 1.

AN ACT PROVIDING A MECHANISM FOR FREE LEGAL ASSISTANCE AND FOR OTHER PURPOSES (RA No. 9999) FEBRUARY 23, 2010

2.

3.

Purpose of RA No. 9999 (Free Legal Assistance Act of 2010) 1. 2.

3.

4.

5.

Encourage lawyers and professional partnerships to provide free legal assistance. Solicit the assistance of lawyers and professional partnerships in the private practice of law in providing quality legal assistance to indigent litigants through a system of tax incentives. Provide relief to the Public Attorney’s Office (PAO) and other associations accredited by the Supreme Court from the numerous cases it handles. Provide indigent litigants the opportunity to acquire the services of the distinguished law firms and legal practitioners of the country for free. Ensure that the right of every individual to counsel, as mandated in the Constitution, is protected and observed.

4.

NOTE: The DOJ, in cooperation with the Philippine Information Agency (PIA), is hereby mandated to conduct an annual Information, Education and Communication (IEC) campaign in order to inform the lawyers of the procedures and guidelines in availing tax deductions and inform the general public that a free legal assistance to those who cannot afford counsel is being provided by the State (Sec. 6, RA 9999).

Rule 2.02, Canon 2 In such cases, even if the lawyer does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary to safeguard the latter’s rights.

Services available Public Attorney's Office (PAO), Department of Justice (DOJ) and other legal aid clinics accredited by the Supreme Court shall refer pauper litigants to identified UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The law will allow indigent litigants to acquire the services of renowned lawyers and law firms for free. In exchange for the services rendered by the lawyer or the law firm, they will be given tax incentives equivalent to the cost of the services rendered to the indigent litigant. It will help relieve the Public Attorney’s Office (PAO) of its numerous caseloads involving indigent litigants who shall be referred to lawyers or law firms in the private practice. It should entice renowned and distinguished firms and lawyers in the practice as their services shall still be compensated commensurately through the tax incentives.

20

DUTIES AND RESPONSIBILITIES OF A LAWYER Rendering of Legal Advice includes preliminary steps that should be taken, at least, until the person concerned has obtained the services of a proper counsel’s representation. Even though no attorneyclient relationship is created between the parties, the lawyer, by providing interim advice, preserves the dignity of the profession by inspiring public faith in the profession (CPR Annotated, PhilJA).

Advertisements GR: No advertisement by lawyers is allowed. The most worthy and effective advertisement possible is the establishment of a well-merited reputation for professional capacity and fidelity to trust. XPNs: (LEPO-LABAN-PD) 1. Reputable Law lists, in a manner consistent with the standards of conduct imposed by the canons, of brief biographical and informative data, are allowed. 2. Advertisements or simple announcement of the Existence of a lawyer or his law firm posted anywhere it is proper such as his place of business or residence except courtrooms and government buildings. 3. Ordinary simple Professional Card. It may contain only a statement of his name, the name of the law firm which he is connected with, address, telephone number and the special branch of law practiced. 4. A simple announcement of the Opening of a law firm or of changes in the partnership, associates, firm name or office address, being for the convenience of the profession, is not objectionable. 5. Advertisements or announcement in any Legal publication, including books, journals, and legal magazines and in telephone directories (Ulep v. Legal Clinic, Inc., B.M. No. 553, June 17, 1993). 6. Writing legal Articles 7. Engaging in Business and other occupations except when such could be deemed improper, be seen as indirect solicitation or would be the equivalent of a law practice. 8. Activity of an association for the purpose of legal representation. 9. Notice to other local lawyers and publishing in a legal journal of one’s availability to act as an associate for them 10. Seeking a Public office, which can only be held by a lawyer or, in a dignified manner, a position as a full time corporate counsel 11. Listing in a phone Directory, but not under a designation of a special branch of law (Atty. Khan Jr. v. Atty. Simbillo, A.C. No. 5299, Aug.19, 2003).

Rule 2.03, Canon 2 A lawyer shall not do or permit to be done any act designated primarily to solicit legal business. (1997 Bar Question) Rationale behind the rule that legal profession is not considered as a business (2006 Bar Question) It is not a business because it is a: 1. Relation, as an “officer of the court”, to the administration of justice involving thorough sincerity, integrity and reliability 2. Duty of public service 3. Relation to clients with the highest degree of fiduciary 4. Relation, to the colleagues at the bar, characterized by candor, fairness, and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients. Q: Atty. David agreed to give ½ of his professional fees to an intermediary or commission agent and he also bound himself not to deal directly with the clients. Can he be subject to disciplinary action? A: Yes. The agreement is void because it was tantamount to malpractice which is the practice of soliciting cases of law for the purpose of gain either personally or through paid agents or brokers. Malpractice ordinarily refers to any malfeasance or dereliction of duty committed by a lawyer. The meaning of malpractice is in consonance with the notion that the practice of law is a profession not a business. The lawyer may not seek or obtain employment by himself or through others, to do so would be unprofessional (Tan Tek Beng v. David, A. C. No. 1261, Dec. 29, 1983).

Rationale for the prohibition of advertisements

NOTE: A general professional partnership with a non-lawyer is VOID. In the formation of partnership for the practice of law, no person should be admitted or held out as a practitioner or member who is not a member of the legal profession duly authorized to practice, and amenable to professional discipline (CPE, Canon 33).

1. 2. 3. 4. 5.

21

The profession is primarily for public service Commercializes the profession Involves self-praise and puffing Damages public confidence May increase lawsuits and result in needless litigation UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics Examples of indirect solicitation 1. 2.

of his businessman friend indicates his law office and his legal specialty, the law office is located in his friend’s store. Decide (2001 Bar Question)

Writing and selling for publication articles of general nature on legal subjects Writing unsolicited article on a legal subject

A: This appears to be a circumvention of the prohibition on improper advertising. There is no valid reason why the lawyer’s businessman friend should be handing out calling cards which contains the lawyer’s law office and legal specialty, even if his office is located in his friend’s store. What makes it more objectionable is the statement of his supposed legal specialty.

NOTE: If engaged in another profession or occupation concurrently with the practice of law, the lawyer shall make clear to his client whether he is acting as a lawyer or in another capacity.

Q: Atty. Dulcinea writes a regular column in a newspaper of general circulation and articles on unforgettable legal stories in a leading magazine. Her by-line always includes the name of her firm where she is a name partner. Would you consider this as improper advertising? Explain your answer.

Rule 2.04, Canon 2 A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant (1997, 2005 Bar Questions)

A: Atty. Dulcinea’s by-line including the firm name where she belongs is improper because it is an indirect way of solicitation or is an advertisement of the law firm.

GR: A lawyer shall not charge rates lower than those customarily prescribed. XPN: When clients are relatives, co-lawyers, or are indigents. These are the valid justifications.

Q: A paid advertisement appeared in the July 5, 2000 issue of Philippine Daily Inquirer, which reads: "ANNULMENT' OF MARRIAGE Specialist 5324333/521-2667." Similar advertisements were published in the August 2 and 6, 2000 issues of the Manila Bulletin and August 5, 2000 issue of The Philippine Star.

NOTE: What the rule prohibits is a competition in the matter of charging professional fees for the purpose of attracting clients in favor of the lawyer who offers lower rates. The rule does not prohibit a lawyer from charging a reduced fee or none at all to an indigent (Comments of the IBP Committee).

TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE INFORMATION ON LEGAL SERVICES

Does the appearance of the following: "ANNULMENT' OF MARRIAGE Specialist 532- 4333/521-2667", in a newspaper, amount to advertising and solicitation of legal services prohibited by the Code of Professional Responsibility and the Rules of Court?

Canon 3 A lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts

A: Yes. It has been repeatedly stressed that the practice of law is not a business. It is a profession in which duty to public service, not money, is the primary consideration. Lawyering is not primarily meant to be a money-making venture, and law advocacy is not a capital that necessarily yields profits. The gaining of a livelihood should be a secondary consideration. The duty to public service and to the administration of justice should be the primary consideration of lawyers, who must subordinate their personal interests or what they owe to themselves (Atty. Khan Jr. v. Atty. Simbillo, A.C. No. 5299, Aug. 19, 2003).

The practice of law is not a trade like the sale of commodities to the general public where "the usual exaggerations in trade, when the proper party had the opportunity to know the facts, are not in themselves fraudulent” (NCC, Art. 1340). Q: Atty. E has a daily 10-minute radio program billed as a “Court of Common Troubles.” The program is advertised by the radio station as a public service feature for those who seek but cannot afford to pay for legal advice. Its sponsors include a food processing company and a detergent manufacturing firm which share with the radio station the monthly remuneration of Atty. E. Is there any impropriety in Atty. E’s role under the above arrangement? (1997 Bar Question)

NOTE: The rule against solicitation applies to a lawyer who offers monetary reward to those who can serve as witness/es in the case, which he is handling (CPR Annotated, PhilJA).

Q: Facing disciplinary charges for advertising as a lawyer, Atty. A argues that although the calling card UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

22

DUTIES AND RESPONSIBILITIES OF A LAWYER A: Yes. Giving advice on legal matters through the medium of a newspaper column or radio station or television broadcast is improper. It would involve indirect advertising and violation of the confidential relation between the lawyer and the client (Agpalo, Legal Ethics).

Continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased. The use of a cross after the name of the deceased partner is sufficient indication. It is advisable though that the year of the death be also indicated.

Rule 3.01, Canon 3 A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, selflaudatory or unfair statement or claim regarding his qualifications or legal services. (1997 Bar Question)

Rule 3.03, Canon 3 Where a partner accepts public office, he shall withdraw from the firm and his name shall be dropped from the firm name unless the law allows him to practice law concurrently.

Any false, exaggerating or untrue claims about his qualification are clearly unethical. Example of this is when a lawyer makes representation to a prospective client that he has never lost a single case in his entire career. Certainly, this is impossible for the best lawyers in the country have experienced losing cases (Antiquiera, 1992).

The rationale of this rule is to prevent the law firm or partners from making use of the name of the public official to attract business and to avoid suspicion of undue influence. Q: Samonte alleges that when she went to Branch 220, RTC, Quezon City, to inquire about the reason for the issuance of the temporary restraining order, Atty. Rolando Gatdula (Clerk of Court) blamed her lawyer for writing the wrong address in the complaint for ejectment, and told her that if she wanted the execution to proceed, she should change her lawyer and retain the law office of Atty. Gatdula, at the same time giving his calling card with the name "Baligod, Gatdula, Tacardon, Dimailig and Celera" with office at Rm. 220 Mariwasa Bldg., 717 Aurora Blvd., Cubao, Quezon City, otherwise she will not be able to eject the defendant Dave Knope. Samonte told Atty. Gatdula that she could not decide because she was only representing her sister. To her consternation, the RTC Branch 220 issued an order granting the preliminary injunction as threatened by Atty. Gatdula despite the fact that the MTC, Branch 37 had issued an Order directing the execution of the Decision in Civil Case No. 37-14552.

Examples of advertisements considered as deceptive 1. 2.

3. 4.

Misstatements of fact Suggestions that the ingenuity or prior record of a lawyer rather than the justice of the claim are the principal factors likely to determine the result Inclusion of information irrelevant on selecting a lawyer Representations concerning the quality of service, which cannot be measured or verified (CPR Annotated, PhilJA).

Rule 3.02, Canon 3 In the choice of a firm name, no false, misleading or assumed name shall be used. The continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased. (1994, 1996, 2001 Bar Questions)

Samonte filed an administrative case for misconduct, alleging that Atty. Gatdula is engaged in the private practice of law. Did Atty. Gatdula violate the Code of Conduct and Ethical Standards for the Public Officials and Employees?

Rationale behind the rule that the name of deceased partner may still be used All the partners have, by their joint and several efforts over a period of years contributed to the good will attached to the firm name. In the case of a firm having widespread connections, this good will is disturbed by a change in firm name every time a partner dies, and that reflects a loss in some degree of the good will to the building up of which the surviving partners have contributed their time, skill and labor through a period of years (CPR Annotated, PhilJA).

A: Yes. Samonte by her failure to appear at the hearings, failed to substantiate her allegation that it was Atty. Gatdula who gave her calling card "Baligod, Gatdula, Tacardon, Dimailig and Celera Law Offices" and that he tried to convince her to change counsels. However, while Atty. Gatdula vehemently denies Samonte's allegations, he does not deny that his name appears on the calling card attached to the complaint, which admittedly came into the hands of Samonte.

NOTE: No name not belonging to any of the partners or associates may be used in the firm name for any purpose.

The card clearly gives the impression that he is

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics connected with the said law firm. The inclusion/retention of his name in the professional card constitutes an act of solicitation which violates Section 7 sub-par. (b) (2) of R.A. 6713, otherwise known as "Code of Conduct and Ethical Standards for the Public Officials and Employees" which declares it unlawful for a public official or employee to, among others: (2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with official functions (Samonte v. Gatdula, A.M. No. 99-1292, Feb. 26, 1999).

Consideration 8-1, 1978, Model Code of Professional Responsibility, American Bar Association). E.g.: 1. Presenting position papers or resolutions for the introduction of pertinent bills in Congress; or 2. Petitions with the SC for the amendment of the Rules of Court. Endorsement by a lawyer A lawyer may, with propriety, endorse a candidate and seek that endorsement from other lawyers. A lawyer should not use or attempt to use the power or prestige of the judicial office to secure such endorsement. On the other hand, the lawyer whose endorsement is sought should have the courage and moral stamina to refuse the request for endorsement if he believes the candidate lacks the essential qualifications for the office or believes the opposing candidate is better qualified (ABA Opinion 189 (1938); (Funa, 2009).

Rule 3.04, Canon 3 A lawyer shall not pay or give anything of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business. The reason for this rule is to prevent some lawyers from gaining an unfair advantage over others through the use of gimmickry, press agentry or other artificial means.

PARTICIPATION IN THE LEGAL EDUCATION PROGRAM

Q: Fiscal Salva conducted the investigation of the case concerning the killing of Monroy, in the session hall of the Municipal Court of Pasay City to accommodate the public and members of the press. Also, he told the press that “if you want to ask question, I am allowing you to do so and the questions will be reproduced as my own”. Is the act of the fiscal in sensationalizing the case unethical?

Canon 5 A lawyer shall keep abreast of legal developments, participate in continuing legal education programs, support efforts to achieve high standards in law schools as well as in the practical training of law students and assist in disseminating information regarding the law and jurisprudence.

A: Yes. Fiscal Salva should be publicly reprehended and censured for the uncalled and wide publicity and sensationalism that he had given to and allowed in connection with his investigation, whatever be his motive, which is considered and found to be contempt of court (Cruz v Salva, G.R. No. L-12871, July 25, 1959).

This duty carries with it the obligation to be well informed of the existing laws, and to keep abreast with legal developments, recent enactment and jurisprudence. It is imperative that they be conversant with the basic legal principles. Unless they faithfully comply with such duty, they may not be able to discharge competently and diligently their obligations as members of the Bar. Worse, they may become susceptible to committing mistakes (Dulalai Jr. v. Cruz, A.C. No. 6854, Apr. 27, 2007, citing Santiago v. Rafanan, A.C. No. 6252, Oct. 5, 2004).

PARTICIPATION IN THE IMPROVEMENT AND REFORMS IN THE LEGAL SYSTEM Canon 4 A lawyer shall participate in the development of the legal system by initiating or supporting efforts in law reform and in the improvement of the administration of justice.

The latest circular of the Supreme Court provides for the mandatory attendance of all lawyers in the socalled Mandatory Continuing Legal Education Program of the IBP. For law practitioners, they have to comply with the 36 hours of mandatory legal education as a pre-condition to the non-revocation of license to practice law (Antiquiera, 1992).

By reason of education and experience, lawyers are especially qualified to recognize deficiencies in the legal system and to initiate corrective measures therein. Thus, they should participate in proposing and supporting legislation and programs to improve the system, without regard to the general interests or desires of clients or former clients (Ethical UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

24

DUTIES AND RESPONSIBILITIES OF A LAWYER Three-fold obligation of a lawyer 1. 2.

3.

event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to end of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn (RRC, Rule 110, Sec. 5, as amended by A.M. No. 02-2-07-SC effective May 1, 2002).

He owes it to himself to continue improving his knowledge of the laws. He owes it to his profession to take an active interest in the maintenance of high standards of legal education. He owes it to the lay public to make the law a part of their social consciousness. LAWYERS IN THE GOVERNMENT AND DISCHARGE OF OFFICIAL TASKS

Rule 6.02, Canon 6 A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties.

Canon 6 These canons shall apply to lawyers in government service in the discharge of their official tasks Lawyers in the employ of the government should be more sensitive in the performance of their professional obligations as their conduct is subject to constant scrutiny of the public.

Restriction on lawyers who are also public officials and employees during their incumbency (PERU) They must NOT: 1. Engage in the Private practice of their profession unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions; 2. Own, control, manage or accept Employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law; 3. Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office; and 4. Use or divulge confidential or classified information officially known to them by reason of their office and not available to the public.

Rule 6.01, Canon 6 The primary duty of a lawyer engaged in PUBLIC PROSECUTION is not to convict but to see to it that justice is done. The suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action (1992, 1993 Bar Questions) Q: From the viewpoint of legal ethics, why should it be mandatory that the public prosecutor be present at the trial of a criminal case despite the presence of a private prosecutor? (2001 Bar Question) A: The public prosecutor must be present at the trial of the criminal case despite the presence of a private prosecutor in order to see to it that the interest of the State is well-guarded and protected, should the private prosecutor be found lacking in competence in prosecuting the case. Moreover, the primary duty of a public prosecutor is not to convict but to see to it that justice is done (Rule 6.01, CPR). A private prosecutor would be naturally interested only in the conviction of the accused.

Rule 6.01 v. Rule 6.02 Unlike Rule 6.01, 6.02 is not limited to public prosecutors, or public lawyers engaged principally in criminal prosecution cases. The restriction applies particularly to lawyers in government service, who are allowed by law to engage in private law practice, and those who, though prohibited from engaging in the practice of law, have friends, former associates and relatives who are in the active practice of law (CPR Annotated, PhilJA).

Instance where a private prosecutor may appear in behalf of the State even without the presence or supervision of a public prosecutor All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor. In case of heavy work schedule of the public prosecutor or in the

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics Rule 6.03, Canon 6 A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service (1992, 1993, 2001 Bar Questions)

the “drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles of law” are acts which do not fall within the scope of the term “matter” and cannot disqualify.

The restriction provided under the rule covers engagement or employment which means that he cannot accept any work or employment from anyone that will involve or relate to the matter in which he intervened as a public official, except on behalf of the body or authority which he served during his public employment (CPR Annotated, PhilJA). Q: Atty. Madrigal worked in the Supreme Court, under the division which handles the case of Mr. Roxas. Before the promulgation of the decision of the case, Atty. Madrigal resigned and started to work in the law firm which handles the case of Mr. Roxas. Is Atty. Madrigal allowed to use the information he got to help in the case handled by the firm?

However, this concern does not cast shadow in the case at bar. The act of Mendoza in informing the Central Bank on the procedure on how to liquidate the GenBank is a different matter from the subject matter of the civil case which is about the sequestration of the shares of Tan et al. in Allied Bank. Consequently, the danger that confidential official information might be divulged is still nil, if not inexistent. To be sure, there are no inconsistent sides to be bothered about in this case. For there is no question that in lawyering for Tan et al., Mendoza is indirectly defending the validity of the action of the Central Bank in liquidating GenBank and selling it later to Allied Bank. Their interests coincide instead of colliding (PCGG v. Sandiganbayan, G.R. Nos. 151809-12, Apr. 12, 2005).

A: No, such act is unethical and is violative of Rule 6.03 of the CPR.

Adverse-interest conflict

NOTE: Sec. 7(b) of R.A. 6713 prohibits former public official or employee for a period of 1 year after retirement or separation from office to practice his profession in connection with any matter before the office he used to be with.

ADVERSE-INTEREST CONFLICTS Adverse-interest conflicts exist where the matter in which the former government lawyer represents a client in private practice is substantially related to the matter that the lawyer dealt with while employed by the government and the interests of the government and the interests of the current and former are adverse.

Q: Former Solicitor General Estelito Mendoza filed a petition with the CFI praying for the assistance and supervision of the court in the GenBank’s liquidation. Mendoza gave advice on the procedure to liquidate the GenBank. Subsequently, President Aquino established the PCGG to recover the alleged ill-gotten wealth of former President Marcos, his families and cronies. The PCGG filed with the Sandiganbayan a complaint for reversion, reconveyance, restitution, accounting and damages against Tan, et al. and issued several writs of sequestration on properties they allegedly acquired. Tan, et al. were represented by former SolGen Mendoza, who has then resumed his private practice of law. The PCGG filed motions to disqualify Mendoza as counsel for Tan, et al. The motions alleged that Mendoza, as then SolGen and counsel to Central Bank, “actively intervened” in the liquidation of GenBank, which was subsequently acquired by Tan, et al. Is Rule 6.03 of the CPR applicable to Mendoza?

v.

Congruent-interest

CONGRUENT-INTEREST REPRESENTATION CONFLICTS In congruent-interest representation conflict, the disqualification does not really involve a conflict at all, because it prohibits the lawyer from representing a private practice client even if the interests of the former government client and the new client are entirely parallel.

NOTE: “congruent-interest representation conflict,” unlike the “adverse-interest conflict,” is unique to former government lawyers.

DUTIES AND RESPONSIBILITIES OF A LAWYER TO THE LEGAL PROFESSION Canon 7 A lawyer shall at all times uphold the integrity and dignity of the legal profession and support the activities of the integrated bar

A: No. The advice given by Mendoza on the procedure to liquidate the GenBank is not the “matter” contemplated by Rule 6.03 of the CPR. ABA Formal Opinion No. 342 is clear in stressing that UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

conflict

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DUTIES AND RESPONSIBILITIES OF A LAWYER Integrated Bar of the Philippines

nominees submitted by the Delegates from the Region, provided that not more than one nominee shall come from any Chapter. The President and the Executive Vice President, if chosen by the Governors from outside of themselves as provided in Section 7 of this Rule, shall ipso facto become members of the Board (RRC, Sec. 6, Rule 139-A).

It is an official national body composed of all persons whose names now appear or may hereafter be included in the Roll of Attorneys of the Supreme Court (RRC, Sec. 1, Rule 139-A). NOTE: Integrated Bar is a state-organized bar, to which every lawyer must belong. As distinguished from bar associations organized by individual lawyers themselves, membership in which is voluntary. It is a national organization of lawyers created on 16 January 1973 under Rule 139-A, Rules of Court, and constituted on 4 May 1973 into a body corporate by PD No. 181.

Term of members of the IBP Board Members shall hold office for a term of one year from the date of their election and until their successors shall have been duly elected and qualified. No person may be a Governor for more than two terms (RRC, Sec. 6, Rule 139-A).

Integration of the Bar

Principle of rotation

The Integration of the Philippine Bar means the official unification of the entire lawyer population, and this requires membership and financial support of every attorney as condition sine qua non to the practice of law and the retention of his name in the Roll of Attorneys of the Supreme Court (Pineda, 1999).

Pursuant to the principle of rotation, the governorship of a region shall rotate once in as many terms as the number of chapters there are in the region, to give every chapter a chance to represent the region in the Board of Governors. Thus, in a region composed of 5 chapters, each chapter is entitled to the governorship once in every 5 terms, or once every ten (10) years, since a term is two (2) years (Atty. Magsino et al. v. Atty. Vinluan, A.M. No. 09-5-2-SC, December 14, 2010).

Fundamental purposes of the IBP 1. 2. 3.

To elevate the standards of the legal profession; Improve the administration of justice; and Enable the Bar to discharge its public responsibility more effectively (RRC, Sec. 2, Rule 139-A).

NOTE: The principle on rotation shall be strictly implemented so that all prior elections for governor in the region shall be reckoned with or considered in determining who should be the governor to be selected from the different chapters to represent the region in the Board of Governors (Bar Matter No. 586 dated May 16, 1991).

NOTE: The Philippines is divided into 9 Regions of the Integrated Bar, with a Chapter organized in every province. Each Chapter shall have its own local government as provided for by uniform rules to be prescribed by the Board of Governors and approved by the SC (Secs. 3 and 4, Rule 139-A, RRC).

Kinds of rotation 1.

Constitutionality of the IBP integration The practice of law is not a vested right but a privilege clothed with public interest. Hence, it is fair and just that the exercise of that privilege be regulated to assure compliance with the lawyer's public responsibilities. Given existing bar conditions, the most efficient means of doing so is by integrating the Bar through a rule of court that requires all lawyers to pay annual dues to the Integrated Bar (In the Matter of the Integration of the Bar of the Philippines, 49 SCRA 22, Jan. 9, 1973).

2.

Structure of the IBP board

Rotation by pre-ordained sequence - effected by the observance of the sequence of the service of the chapters in the first cycle, which is very predictable. Rotation by exclusion - effected by the exclusion of a chapter who had previously served until all chapters have taken their turns to serve. It is not predictable as each chapter will have the chance to vie for the right to serve, but will have no right to a re-election as it is debarred from serving again until the full cycle is completed (In The Matter of the Brewing Controversies in the Elections of the Integrated Bar of the Philippines, A.M. No. 09-5-2-SC, December 04, 2012).

NOTE: In one case, the Supreme Court held that rotation by exclusion shall be adopted since the elections would be more genuine as the opportunity to serve as Governor at any time is once again open to all chapters, unless, of course, a chapter has already served in the new cycle. While predictability is not altogether avoided, as in the case where

Nine Governors shall be elected by the House of Delegates from the nine Regions on the representation basis of one Governor from each Region. Each Governor shall be chosen from a list of

27

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics only one chapter remains in the cycle, still, as previously noted by the Court “the rotation rule should be applied in harmony with, and not in derogation of, the sovereign will of the electorate as expressed through the ballot.” (In The Matter of the Brewing Controversies in the Elections of the Integrated Bar of the Philippines, A.M. No. 09-5-2-SC, December 04, 2012).

automatically become the President for the next succeeding full term. The Presidency shall rotate from year to year among all the nine Regions in such order of rotation as the Board of Governors shall prescribe. No person shall be President or Executive Vice President of the Integrated Bar for more than one term (RRC, Sec. 7, Rule 139-A).

Transferring to another IBP Chapter is not a ground for disqualification to run as IBP Governor

Qualifications of a Regional IBP Governor 1. 2.

Transferring to another IBP Chapter is not a ground for disqualification for the post of IBP Governor as the same is allowed under Section 19 of the IBP By-Laws with the qualification only that the transfer be made not less than three months immediately preceding any chapter election (Velez v. De Vera, A.C. No. 6697, July 25, 2006).

3.

Board meetings

4.

The Board shall meet regularly once every three months, on such date and at such time and place as it shall designate. A majority of all the members of the Board shall constitute a quorum to do business. Special meetings may be called by the President or by five members of the Board (RRC, Sec. 6, Rule 139-A).

NOTE: Moral fitness is not an explicit qualification in the IBP by-laws.

Vacancy occurring in the IBP presidency

IBP officers

1.

The Integrated Bar shall have a/an: 1. President 2. Executive Vice President who shall be chosen by the Governors immediately after the latter’s election; either from among themselves or from other members of the Integrated Bar, by the vote of at least five Governors. Each of the regional members of the Board shall be ex officio Vice President for the Region which he represents. 3. Secretary 4. Treasurer 5. Such other officers and employees as may be required by the Board of Governors, to be appointed by the President with the consent of the Board, and to hold office at the pleasure of the Board or for such term as it may fix. Said officers and employees need not be members of the Integrated Bar (RRC, Sec. 7, Rule 139-A).

2.

3.

In the event the President is absent or unable to act, his duties shall be performed by the Executive Vice President In the event of the death, resignation, or removal of the President, the Executive Vice President shall serve as Acting President during the remainder of the term of the office thus vacated In the event of the death, resignation, removal or disability of both the President and the Executive Vice President, the Board of Governors shall elect an Acting President to hold office until the next succeeding election or during the period of disability. (RRC, Sec. 8, Rule 139-A)

NOTE: Serves only the unexpired term.

IBP must be apolitical No lawyer holding an elective, judicial, quasi-judicial or prosecutory office in the Government or any political subdivision or instrumentality thereof shall be eligible for election or appointment to any position in the Integrated Bar or any Chapter thereof. A Delegate, Governor, officer or employee of the Integrated Bar, or an officer or employee of any Chapter thereof shall be considered ipso facto resigned from his position as of the moment he files his certificate of candidacy for any elective public office or accepts appointment to any judicial, quasi-judicial, or prosecutory office in the

Term of office of officers The President and the Executive Vice President shall hold office for a term of one year from the date of their election and until their successors shall have duly qualified. The Executive Vice President shall UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

He is a member in good standing of the IBP He is included in the voters list of his chapter or he is not disqualified by the Integration Rule, by the By-Laws of the Integrated Bar, or by the By-Laws of the Chapter to which he belongs. He does not belong to a chapter from which a regional governor has already been elected, unless the election is the start of a new season or cycle. He is not in the government service (In Re: Petition to disqualify Atty. De Vera, A.C. No. 6052, Dec. 11, 2003).

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DUTIES AND RESPONSIBILITIES OF A LAWYER Government or any political subdivision or instrumentality thereof (RRC, Sec. 13, Rule 139-A).

corollary to their obligation to obey and uphold the constitution and the laws, the duty to promote respect for law and legal processes and to abstain activities aimed at the defiance of the law or at lessening confidence in the legal system (In Re: IBP Elections, B.M. 491, Oct. 6, 1989).

Prohibited acts and practices relative to the elections of IBP officers 1. 2.

3.

4.

5.

Distribution, except on election day, of election campaign materials; Distribution, on election day, of election campaign materials other than a statement of the bio data of the candidate on not more than one page of a legal size sheet of paper; or causing the distribution of such statement to be done by persons other than those authorized by the officer presiding at the elections; Campaigning for or against any candidate, while holding an elective, judicial, quasi-judicial or prosecutory office in the Government or any political subdivision, agency or instrumentality thereof; Formation of tickets, single slates, or combinations of candidates as well as the advertising thereof; and For the purpose of inducing or influencing a member to withhold his vote, or to vote for or against a candidate: a. Payment of the dues or other indebtedness of any member; b. Giving of food, drink, entertainment, transportation or any article of value, or any similar consideration to any person; c. Making a promise or causing an expenditure to be made, offered or promise to any person (Sec. 4, IBP By-Laws; In the Matter of the Inquiry into the 1989 Elections of the Integrated Bar of the Philippines, A.M. No. 491, Oct. 6, 1989).

MEMBERSHIP AND DUES Q: The Integrated Bar of the Philippines adopted a resolution recommending to the Court the removal of the name Marcial A. Edillon, a duly licensed practicing attorney, from its Roll of Attorneys for stubborn refusal to pay his membership dues to the IBP since its constitution, notwithstanding due notice. Is Edillon correct in his objection that the Court is without power to compel him to become a member of the IBP, hence, Sec. 1 of Rule 139-A of the Rules of Court is unconstitutional for it impinges on his constitutional right of freedom to associate (and not to associate)? A: No. To compel a member of the Integrated Bar is not violative of his constitutional freedom to associate. Integration does not make a lawyer a member of any group of which he is not already a member. He became a member of the Bar when he passed the Bar Examinations. All that integration actually does is to provide an official national organization for the welldefined but unorganized and incohesive group of which every lawyer is already a member. Assuming that the questioned provision does in a sense compel a lawyer to be a member of the Integrated Bar, such compulsion is justified as an exercise of the police power of the State (In the Matter of IBP Membership Dues Delinquency of Atty. Edillon, A.C. No. 1928, Dec. 19, 1980).

Q: In the election of national officers of the IBP, the Supreme Court received reports of electioneering and extravagance that characterized the campaign conducted by the 3 candidates (Paculdo, Nisce and Mrs. Drilon) for President of the IBP. It is alleged that they used government planes, give free accommodations to voters to expensive hotels and there has been intervention of public officials to influence the voting. Is there a violation of the IBP bylaws? Is there sufficient ground for the Supreme Court to suspend the oath taking of the officials?

NOTE: A lawyer does not automatically become a member of the IBP chapter where he resides or works after becoming a full-fledged member of the Bar. He has the discretion to choose the IBP Chapter he wants to join (Garcia v. De Vera, A.C. 6052, Dec. 11, 2003). Unless he otherwise registers his preference for a particular Chapter, a lawyer shall be considered a member of the Chapter of the province, city, political subdivision or area where his office is or, in the absence thereof, his residence is located. In no case shall any lawyer be a member of more than one Chapter (RRC, Sec. 4, Rule 139-A).

A: Yes. The candidates for the national positions in the IBP conducted their campaign preparatory to the election on June 3, 1989 in violation of Section 14 of the IBP by-laws and the Rules of Court, that the IBP shall be strictly non-political. Also the ethics of the legal profession imposed on all lawyers has been violated

Procedure for voluntary termination of membership A member may terminate his membership by filing a written notice to that effect with the Secretary of the Integrated Bar, who shall immediately bring the matter to the attention of the Supreme Court.

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics NOTE: RA 7432 providing 20% discount to Senior Citizens DO NOT apply to IBP Dues.

Forthwith he shall cease to be a member and his name shall be stricken by the Court from the Roll of Attorneys (RRC, Sec.11, Rule 139-A).

Q: Atty. Arevalo sought exemption from payment of IBP dues for the alleged unpaid accountability for the years 1977-2005. He alleged that after being admitted to the Philippine Bar in 1961, he became part of the Philippine Civil Service then migrated to, and worked in, the USA in December 1986 until his retirement in the year 2003. He maintained that he cannot be assessed IBP dues for the years that he was working in the Philippine Civil Service since the Civil Service law prohibits the practice of one’s profession while in government service, and neither can he be assessed for the years when he was working in the USA. Is Atty. Arevalo entitled to exemption from payment of his dues during the time that he was inactive in the practice of law?

NOTE: Re-instatement may be made by the Court in accordance with rules and regulations prescribed by the Board of Governors and approved by the Court (RRC, Sec.11, Rule 139-A).

Membership dues Every member of the Integrated Bar shall pay such annual dues as the Board of Governors shall determine with the approval of the Supreme Court. A fixed sum equivalent to ten percent (10%) of the collections from each Chapter shall be set aside as a Welfare Fund for disabled members of the Chapter and the compulsory heirs of deceased members thereof (RRC, Sec. 9, Rule 139-A). NOTE: Membership dues are not prohibited by the Constitution. The fee is imposed as a regulatory measure, designed to raise funds for carrying out the purposes and objectives of the integration (In the Matter of IBP Membership dues delinquency of Atty. Marcial Edillon, A.M. No. 1928, Aug. 3, 1978).

A: No. The Integration of the Philippine Bar means the official unification of the entire lawyer population. This requires membership and financial support of every attorney as condition sine qua non to the practice of law and the retention of his name in the Roll of Attorneys of the Supreme Court.

Effect of non-payment of dues

Payment of dues is a necessary consequence of membership in the IBP, of which no one is exempt. This means that the compulsory nature of payment of dues subsists for as long as one’s membership in the IBP remains regardless of the lack of practice of, or the type of practice, the member is engaged in. There is nothing in the law or rules which allow exemption from payment of membership dues (Letter of Atty. Arevalo, Jr. Requesting Exemption from Payment of Dues, B.M. No. 1370, May 9, 2005).

Default in the payment of annual dues for six months shall warrant suspension of membership in the Integrated Bar, and default in such payment for one year shall be a ground for the removal of the name of the delinquent member from the Roll of Attorneys (RRC, Sec. 10, Rule 139-A) subject to the requirement of due process (Funa, 2009). Q: Atty. Llamas, for a number of years, has not indicated the proper PTR and IBP OR Nos. and data in his pleadings. He only indicated “IBP Rizal 259060” but he has been using this for at least 3 years already. Atty. Llamas averred that he is only engaged in a “limited” practice of law and under R.A. 7432, as a senior citizen, he is exempted from payment of income taxes and included in this exemption, is the payment of membership dues. Is Atty. Llamas correct?

UPHOLDING THE DIGNITY AND INTEGRITY OF THE PROFESSION Academic requirements for bar candidates 1.

A: Rule 139-A requires that every member of the Integrated Bar shall pay annual dues and default thereof shall warrant the appropriate penalties. It does not matter whether or not Atty. Llamas is only engaged in “limited” practice of law. Moreover, the exemption invoked by Atty. Llamas does not include exemption from payment of membership or association dues (Santos Jr. v. Atty. Llamas, A.C. No. 4749, Jan. 20, 2000). UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

2.

30

Pre-Law - Pursued and satisfactorily completed in an authorized and recognized university or college, requiring for admission thereto the completion of a four-year high school course, the course of study prescribed therein for a bachelor's degree in arts or sciences (RRC, Sec. 6, Rule 138) Law proper - satisfactorily completed the following courses in a law school or university duly recognized by the government: civil law, commercial law, remedial law, criminal law, public and private international law, political law, labor and social legislation, medical jurisprudence, taxation and legal ethics (RRC, Sec. 5, Rule 138).

DUTIES AND RESPONSIBILITIES OF A LAWYER further extends to the lawyer’s responsibility to uphold the integrity and dignity of the profession, by not blindly issuing certifications in support of applications for admission to the bar of persons known to him or her to have questionable character, inadequate education or other relevant attributes not consistent with any or all of the requirements for admission (CPR Annotated, PhilJA).

Rule 7.01, Canon 7 A lawyer shall be answerable for knowingly making a false statement or suppressing a material fact in connection with his application for admission to the bar (1995, 1997, 2004, 2005 Bar Questions) The concealment of an attorney in his application to take the bar exams of the fact that he had been charged with or indicted for an alleged crime, is ground for revocation of his license to practice law.

Rule 7.03, Canon 7 A lawyer shall not engage in a conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession (2004 Bar Question)

Honest mistake as excuse in making false statement An honest mistake in making false statement may be a valid excuse but the burden of proof lies on the one who alleges it.

Q: Atty. Perenia got married in 2005. Then he met another woman, Helen; they fell in love and started living together. Atty. Perenia would even bring her along social functions and introduce her as his second wife. Is such act unethical?

On the other hand, to be liable for suppressing a fact or information in the application, the suppression must be: 1. Deliberately or knowingly made; and 2. The fact or information suppressed must be material (CPR Annotated, PhilJA).

A: Yes, it violates Rule 7.03 of CPR. The fact that he shamelessly flaunts his mistress constitutes an act which embarrasses and discredits the law profession since it is his duty and obligation to uphold the dignity and integrity of the profession. The actuation of Atty. Perenia is contrary to good morals.

False statements in the application for admission to the Bar 1.

2.

3.

If the false statement or suppression of material fact is discovered before the candidate could take the bar examinations, he will be denied permission to take the examinations. If the false statement or suppression of material fact was discovered after the candidate had passed the examinations but before having been taken his oath, he will not be allowed to take his oath as a lawyer. If the discovery was made after the candidate had taken his oath as a lawyer, his name will be stricken from the Roll of Attorneys.

While it has been held in disbarment cases that the mere fact of sexual relations between two unmarried adults is not sufficient to warrant administrative sanction for such illicit behavior, it is not so with respect to betrayals of the marital vow of fidelity. Even if not all forms of extra-marital relations are punishable under penal law, sexual relations outside marriage is considered disgraceful and immoral as it manifests deliberate disregard of the sanctity of marriage and the marital vows protected by the Constitution and affirmed by our laws (Vitug v. Roncal, A.C. No. 6313, Sept. 7, 2006).

Effect concealment of a crime which does not involve moral turpitude

Q: Atty. Kuripot was one of Town Bank’s valued clients. In recognition of his loyalty to the bank, he was issued a gold credit card with a credit limit of P250,000.00. After two months, Atty. Kuripot exceeded his credit limit, and refused to pay the monthly charges as they fell due. Aside from a collection suit, Town Bank also filed a disbarment case against Atty. Kuripot. In his comment on the disbarment case, Atty. Kuripot insisted that he did not violate the Code of Professional Responsibility, since his obligation to the bank was personal in nature and had no relation to his being a lawyer. Is Atty. Kuripot correct? Explain your answer.

Concealment will be taken against him. It is the fact of concealment and not the commission of the crime itself that makes him morally unfit to become a lawyer. When he made concealment he perpetrated perjury. Rule 7.02, Canon 7 A lawyer shall not support the application for admission to the bar of any person known by him to be unqualified in respect to character, education or other relevant attribute. The rationale behind the rule goes beyond the personal responsibility to be upright and honest. It

31

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics A: Atty. Kuripot is not correct. Section 7.03 of the Code of Professional Responsibility provides that “a lawyer shall not engage in conduct that adversely affects his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.”

5.

6. Q: Explain whether Atty. Kuripot should be held administratively liable for his refusal to settle his credit card bill. (2005 Bar Question)

NOTE: The lawyer’s arguments, whether written or oral, should be gracious to both the court and opposing counsel and be of such words as may be properly addressed by one gentleman to another (National Security Co. v. Jarvis, 278 U.S. 610).

A: He may not be held administratively liable. The Supreme Court has held that it does not take original jurisdiction of complaints for collection of debts. The creditor’s course of action is civil, not administrative in nature and proper reliefs may be obtained from the regular courts (Litigio v. Dicon, A.M. No. MTJ-93-806, July 13, 1995). Although lawyers have been held administratively liable for obstinacy in evading payment of a debt (Constantino v. Saludares, A.C. No. 2029, Dec. 7, 1993; Lao v. Medel, A.C. No. 5916, July 1, 2003), there is no obstinacy shown in this case.

A lawyer’s language should be forceful but dignified, emphatic but respectful as befitting an advocate and in keeping with the dignity of the legal profession (In Re: Climaco, A.C. No. 134-J, Jan. 21, 1974).

Q: In the pleadings and motions filed by Tiongco, he described Atty. Deguma as a love crazed Apache, a horned spinster, man-hungry virago and female bull of an Amazon who would stop at nothing to injure defendant if only to please and attract her client. Tiongco claims that she, as a lawyer in the Public Attorney’s Office, is using the PAO as a marriage bureau for her benefit. Is the language employed by Tiongco improper and unethical?

COURTESY, FAIRNESS AND CANDOR TOWARDS PROFESSIONAL COLLEAGUES Canon 8 A lawyer shall conduct himself with courtesy, fairness and candor towards his professional colleagues, and shall avoid harassing tactics against opposing counsel.

A: Yes. The Code of Professional Responsibility provides in Canon 8 that a lawyer shall conduct himself with courtesy, fairness, and candor toward his professional colleagues, and shall avoid harassing tactics against opposing counsel. Rule 8.01 provides that a lawyer shall not in his professional dealings, use language which is abusive, offensive or otherwise improper while Rule 11.03 provides that a lawyer shall abstain from scandalous, offensive or menacing language before the courts. Thus, Tiongco is warned accordingly (Tiongco Yared v. Ilarde, G.R. No. 114732, Aug. 1, 2000).

Lawyers, though they may represent different clients, should bear in mind that they are not enemies but brothers and sisters in their profession (Antiquiera, 1992). Rule 8.01, Canon 8 A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper.

NOTE: Lack of want of intention is no excuse for the disrespectful language employed. Counsel cannot escape responsibility by claiming that his words did not mean what any reader must have understood them as meaning (Rheem of the Philippines v. Ferrer, G.R. No. L-22979, Jan. 27, 1967).

Instances of disrespectful language 1.

2.

3.

4.

Categorizes the SC decision as false, erroneous and illegal (Suo v. Cloribel, A.M. No. 01-1-15-RTC, July 10, 2003). Description of judges attitude as “unjust, hostile, vindictive and dangerous” (Cornejo v. Judge Tan, G.R. No. L-2217, Mar. 23, 1950). Stating that “justice is blind and also deaf and dumb” (In Re: Almacen, G.R. No. L- 27654, Feb. 18, 1970). Attributing to the SC acts of dismissing judges “without rhyme and reason” and disbarring UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

lawyers “without due process” (Zaldivar v. Gonzales, G.R. Nos. 79690-707, Feb. 1, 1989). Calling an adverse counsel as “bobo” or using the word “ay que bobo” in reference to the manner of offering evidence. (Castillo v. Padilla Jr., A.M. No. 2339, Feb. 1984); and Any other analogous cases.

Although the Canon that the Rule implements pertains to a lawyer’s dealings with his fellow lawyers, the Rule is generally worded to apply to anyone in the wider context of a lawyer’s professional dealings, including his or her clients and witnesses (CPR Annotated, PhilJA).

32

DUTIES AND RESPONSIBILITIES OF A LAWYER A: Such advice would be unethical. A lawyer shall conduct himself with courtesy, fairness and candor towards his professional colleagues (CPR, Canon 8). Specifically, he should not directly or indirectly encroach upon the professional employment of another lawyer (CPR, Canon 8).

Rule 8.02, Canon 8 A lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer; however, it is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel (1995, 1997, 2001, 2005, 2006 Bar Questions)

Q: What should Atty. Mendoza do about the information relayed to him by Myrna that Atty. Khan approached her husband with an indecent proposal? (2006 Bar Question)

A person without a retained lawyer is a legitimate prospective client for any lawyer whom he approaches for legal services. But, as soon as he had retained one and had not dismissed the retained counsel, efforts on the part of another lawyer to take him as client constitutes an act of encroaching upon the employment of another lawyer.

A: He can advise her to terminate the services of Atty. Khan and/or file an administrative case against Atty. Khan. It is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel (CPR, Rule 8.02).

A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel much less should he undertake to negotiate or compromise the matter with him, but should deal with his counsel.

Q: You are the counsel of K in his action for specific performance against DEV, Inc., a subdivision developer which is represented by Atty. L. Your client believes that the president of DEV Inc., would be willing to consider an amicable settlement and your client urges you to discuss the matter with DEV Inc., without the presence of Atty. L whom he consider to be an impediment to an early compromise. Would it be alright for you to negotiate the terms of the compromise as so suggested above by your client? (1997 Bar Question)

Any act which is aimed to ease out a previous lawyer with the intention to grab the case is highly unethical and should be avoided (Antiquiera, 1992). Exceptions 1.

2.

A lawyer may properly interview any witness or prospective witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party. Any person who seeks relief against an unfaithful or neglectful lawyer may approach another lawyer for proper advice and assistance. Any advice or assistance extended after proper verification is not encroaching upon the business of another lawyer for such act is justified under the circumstances.

A: No. Rule 8.02, Canon 8 of the Code of Professional Responsibility provides that “a lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer.” Canon 9 of the Code of Professional Ethics is more particular. “A lawyer should not in any way communicate upon the subject of the controversy with a party represented by counsel, much less should he undertake to negotiate or compromise the matter with him but should deal only with his counsel.” In the case of Likong v. Lim, A.C. No. 3149, August 17, 1994, a lawyer was suspended for negotiating a compromise agreement directly with the adverse party without the presence and participation of her counsels.

Q: Myrna, in a case for custody of children against her husband, sought advice from Atty. Mendoza whom she met at a party. She informed Atty. Mendoza that her lawyer, Atty. Khan, has been charging her exorbitant appearance fees when all he does is move for postponements which have unduly delayed the proceedings; and that recently, she learned that Atty. Khan approached her husband asking for a huge amount in exchange for the withdrawal of her Motion for Issuance of Hold Departure Order so that he and his children can leave for abroad. Is it ethical for Atty. Mendoza to advise Myrna to terminate the services of Atty. Khan and hire him instead for a reasonable attorney’s fees?

NO ASSISTANCE IN UNAUTHORIZED PRACTICE OF LAW Canon 9 A lawyer shall not, directly or indirectly, assist in the unauthorized practice of law. The rationale of this canon is to protect the public, the court, the client and the bar from the incompetence or

33

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the court.

unqualified person the performance of any task which by law may only be performed by a member of the bar in good standing.

There is no violation of this canon if a lawyer employs a paralegal graduate to assist him in the practice of law since the job of a paralegal is limited to drafting of documents, case management, etc. (Antiquiera, 1992).

Rule 9.02, Canon 9 A lawyer shall not divide or stipulate to divide a fee for legal services with persons not licensed to practice law.

Q: Sanchez alleged that the complaint against him and the supporting affidavits were subscribed and sworn to before Tupas, the Clerk of Court, who is not a member of the IBP and therefore engaged in unauthorized practice of law. Is Tupas as Clerk of Court authorized to administer oath?

The interest promoted by the prohibition is that the independence of the professional judgment of a lawyer, which the client is paying for, could be at risk if a non-lawyer has direct rights to share in the legal fees resulting from the exercise of such professional judgment (CPR Annotated, PhilJA).

A: The term "clerk of courts" in Section 41 of the Administrative Code as amended is used as a general term. The intention of the law is to authorize all clerks of court regardless of whether they are clerks of the MTCs, to administer oaths on matter involving official business. As Clerk of Court of MCTC, Tupas has the authority to administer oath of affidavits of parties and witnesses which are to be filed in court (Sanchez v. Tupas, A.M. OCA IPI No. 03- 1687-P, Mar. 1, 2004).

Exceptions to Rule 9.02 1.

Rule 9.01, Canon 9 A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the bar in good standing.

NOTE: This exception is in the nature of a bequest. It is still in substance, payment to the deceased lawyer. His estate and/or assignee could not claim entitlement to the money in their own right but only by representation (CPR Annotated, PhilJA).

2.

The qualifications to be a lawyer is personal and the Bar is an exclusive group of professionals who possess the requisite qualifications and for whom defined functions are reserved. To delegate the functions would violate the rationale behind reserving defined functions exclusively for those who are admitted to the bar.

Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; (CPR, Rule 9.02, third par., Canon 9) or NOTE: The estate or the heir cannot be made a member of the partnership with the surviving partners. The legal fees in this case, no longer represent compensation for past

Although the authority of a lawyer to represent a client cannot be delegated to an unqualified person, it does not follow however that the retained lawyer is automatically authorized to make such delegation to a qualified person because a client-lawyer relationship is personal (CPR Annotated, PhilJA).

3.

Where a lawyer or law firm includes a non-lawyer employees in a retirement plan, even if the plan is based in whole or in part, on a profit sharing agreement (CPR, Rule 9.02, fourth par., Canon 9). NOTE: This is not a division of legal fees but a pension representing deferred wages for the employees’ past services.

Q: Lorenzo is a lawyer but is suspended in the practice of law due to some unethical acts. He worked for a law firm owned by one of his friends. Since he has so many cases to handle, Atty. Berenguer assigned a case to Lorenzo, believing he can handle such easy case. Did Atty. Berenguer violate any rule?

This exception is an implicit recognition of the incontestable fact that lawyers need to, and in fact, depend on non-lawyers for the administrative support functions necessary to allow lawyers to discharge their legal functions more efficiently (CPR Annotated, PhilJA).

A: Yes, because he delegates handling of a case to a person suspended from the practice of law. Under Rule 9.01 of CPR – A lawyer shall not delegate to any UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Where there is a pre-existing agreement with a partner or associate that, upon the latter’s death, money shall be paid over a reasonable period of time to his estate to persons specified in the agreement; (CPR, Rule 9.02, second par., Canon 9) or

34

DUTIES AND RESPONSIBILITIES OF A LAWYER Q: You had just taken your oath as lawyer. The secretary to the president of a big university offered to get you as the official notary public of the school. She explained that a lot of students lose their identification cards and are required to secure an affidavit of loss before they can be issued a new one. She claimed that this would be very lucrative for you, as more than 30 students lose their identification cards every month. However, the secretary wants you to give her one-half of your earning therefrom. Will you agree to the arrangement? Explain. (2005 Bar Question)

judiciary would be intolerable if it could not take at face value what is asserted by counsel. The time that will have to be devoted just to the task of verification of allegations submitted could easily be imagined (Hueysuwan- Florido v. Atty. Florido, A.C. No. 5624, Jan. 20, 2004). Requirements of candor 1.

2. A: No, I will not agree. Rule 9.02 of the Code of Professional Responsibility provides that “a lawyer shall not divide or stipulate to divide a fee for legal service with persons not licensed to practice law”. The secretary is not licensed to practice law and is not entitled to a share of the fees for notarizing affidavits, which is a legal service.

3.

4.

DUTIES AND RESPONSIBILITIES OF A LAWYER TO THE COURTS

A lawyer shall not suppress material and vital facts which bear on the merit or lack of merit of complaint or petition. A lawyer shall volunteer to the court any development of the case which has rendered the issue raised moot and academic. Disclosure to the court of any decision adverse to his position of which opposing counsel is apparently ignorant and which court should consider in deciding a case. He shall not represent himself as a lawyer for a client, appear in court and present pleadings in the latter’s behalf only to claim later that he was not authorized to do so.

Canon 10 A lawyer owes candor, fairness and good faith to the court

Rule 10.01, Canon 10 A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall he mislead, or allow the court to be misled by any artifice.

The burden cast on the judiciary would be intolerable if it could not take at face value what is asserted by counsel.

A lawyer must be a disciple of truth. He should bear in mind that as an officer of the court his high vocation is to correctly inform the court upon the law and the facts of the case and to aid it in doing justice and arriving at correct conclusion. The courts on the other hand are entitled to expect only complete honesty from lawyers appearing and pleading before them. While a lawyer has the solemn duty to defend his client’s cause, his conduct must never be at the expense of truth (Young v. Batuegas, A.C. No. 5379, May 9, 2003).

As officers of the court, lawyers have the primary obligation towards the administration of justice. To mislead the court is contumacious and clearly a ground for disciplinary action (Antiquiera, CPR, p. 39). Q: Atty. Florido demanded that the custody of their children be surrendered to him by showing his spouse Hueysuwan-Florido a photocopy of an alleged Resolution issued by the CA which supposedly granted his motion for temporary child custody. His spouse refused to surrender the custody. Hence, Atty. Florido filed a verified petition for the issuance of a writ of habeas corpus asserting his right to custody of the children on the basis of the alleged CA’s resolution. Hueysuwan obtained a certification from the CA stating that no such resolution had been issued. Hence, complainant filed the instant complaint. May Atty. Florido be held administratively liable for his reliance on and attempt to enforce a spurious Resolution of the CA?

NOTE: A lawyer owes fidelity to the cause of his client but not at the expense of truth and the administration of justice (Garcia v. Francisco, Adm. Case no. 3923, Mar. 30,1993).

Q: Dr. Maligaya, a doctor and retired colonel of the Air Force filed an action for damages against several military officers for whom Atty. Doronilla stood as a counsel. During the hearing of the case, Atty. Doronilla says that he and Dr. Maligaya had an agreement that if the opposing party withdraws the case against him, Dr. Maligaya will also withdraw all the cases. However, Dr. Maligaya swore that he never entered into any agreement to withdraw his lawsuits. Atty. Doronillo admitted that there was, in fact, no such agreement. He pointed out that his main concern was to settle the case amicably. Dr. Maligaya

A: Yes. Atty. Florido’s actions erode the public perception of the legal profession. Candor and fairness are demanded of every lawyer. The burden cast on the

35

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics filed a case against Atty. Doronilla charging him of unethical conduct for having uttered falsehood in court. Is Atty. Doronilla guilty as charged?

Carranza, A.C. No. 716, Jan. 30, 1969). 9. Lawyer filing false charges or groundless suits (Retuya v. Gorduiz, A.C. No. 1388, Mar. 28, 1980). 10. Making untruthful and false statements before the court (Molina v. Magat, A.C. No. 1900, June 13, 2012).

A: Yes. Atty. Doronilla violated Canon 10 and Rule 10.01 of the CPR. Not only that, he also violated the lawyer’s oath to do no falsehood, nor consent to the doing of any in court, of which Canon 10 and Rule 10.01 are but restatements. His act infringed on every lawyer’s duty to “never seek to mislead the judge or any officer by an artifice or false statement of fact or law” (Maligaya v. Doronilla, A.C. No. 6198, Sept. 15, 2006).

Rule 10.02, Canon 10 A lawyer shall not knowingly misquote or misrepresent the contents of the paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved.

Presenting false evidence is not justifiable It is a clear violation of Canon 10 and Rule 10.01 of the CPR.

If not faithfully and exactly quoted, the decisions and rulings of the court may lose their proper and correct meaning, to the detriment of other courts, lawyers and the public who may thereby be misled.

NOTE: Aside from violations of the CPR, the lawyer is also guilty of a crime under Art. 184, Revised Penal Code, which states, "Any person who shall knowingly offer in evidence a false witness or testimony in any judicial or official proceeding, shall be punished as guilty of false testimony and shall suffer the respective penalties provided in this section.”

Rule 10.03, Canon 10, CPR A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice.

Examples of falsehood 1.

2.

3.

4.

5.

6. 7.

8.

Filing multiple actions constitutes an abuse of the Court’s processes. Those who filed multiple or repetitive actions subject themselves to disciplinary action for incompetence or willful violation of their duties as attorneys to act with all good fidelity to the courts, and to maintain only such actions that appear to be just and consistent with truth and honor (Pablo R. Olivares etc. v. Atty. Arsenio Villalon Jr., A.C. No. 6323, Apr. 13, 2007).

Lawyers falsely stating in a deed of sale that property is free from all liens and encumbrances when it is not so (Sevilla v. Zoleta, A.C. No. 31, Mar. 28, 1955). Lawyers making it appear that a person, long dead, executed a deed of sale, in his favor (Monterey v. Arayata, Per. Rec. Nos 3527, 3408, Aug. 23, 1935). Lawyer, encashing a check payable to a deceased cousin by signing the latter’s name on the check (In re: Samaniego, A.C. No. 74, Nov. 20, 1959). Lawyer falsifying a power of attorney and used it in collecting the money due to the principal and appropriating the money for his own benefit (In re: Rusina, A.C. No. 270, May 29, 1959). Lawyer alleging in one pleading that his clients were merely lessees of the property involved, and alleged in a later pleading that the same clients were the owners of the same property where there are false allegations in the pleadings (Chavez v. Viola, GR No. 2152, Apr. 19, 1991). Lawyer uttering falsehood in a Motion to Dismiss (Martin v. Moreno, A.C. No. 1432, May 21, 1984). Lawyer denying having received the notice to file brief which is belied by the return card (Ragasajo v. IAC, G.R. No. L-69129, Aug. 31, 1987). Lawyer presenting falsified documents in court which he knows to be false (Berenguer v. UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Instances when lawyers can be disciplined based on the pleadings he filed When a counsel deliberately: 1. Files an unsigned pleading in violation of the rules; 2. Alleges scandalous matters therein; 3. Fails to promptly report to the court a change of his address (RRC, Sec. 3, Rule 7). NOTE: A lawyer should not abuse his right of recourse to the courts for the purpose of arguing a cause that had been repeatedly rebuffed. Neither should he use his knowledge of law as an instrument to harass a party nor to misuse judicial processes, as the same constitutes serious transgression of the Code of Professional Responsibility. For while he owes fidelity to the cause of his client, it should not be at the expense of truth and the administration of justice (Garcia v. Francisco, A.C. No. 3923, Mar. 30, 1993).

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DUTIES AND RESPONSIBILITIES OF A LAWYER petition is called for under the Code of Judicial Conduct prohibiting justices or judges from participating in any partisan political activity. According to him, the justices have violated the said rule by attending the 'EDSA 2 Rally' and by authorizing the assumption of Vice- President Macapagal-Arroyo to the Presidency. The subsequent decision of the Court in Estrada v. Arroyo (G.R. Nos. 146710-15, Mar. 2, 2001 and G.R. Nos. 146710-15, Apr. 3, 2001) is a patent mockery of justice and due process. He went on to state that — the act of the public officer, if lawful, is the act of the public office. But the act of the public officer, if unlawful, is not the act of the public office. Consequently, the act of the justices, if lawful, is the act of the Supreme Court. But the act of the justices, if unlawful, is not the act of the Supreme Court. It is submitted that the decision in Estrada v. Arroyo being patently unlawful in view of the Code of Judicial Conduct, is not the act of the Supreme Court but is merely the wrong of those individual Justices who falsely spoke and acted in the name of the Supreme Court (Urbano v. Chavez, G.R. No. 87977, Mar. 19, 1990). Are Atty. Paguia’s comments within the bounds of “fair and wellfounded criticisms” regarding decisions of the SC?

Rule 10.04, Canon 10 A lawyer shall, when filing a pleading, furnish the opposing party with a copy thereof, together with all the documents annexed thereto. Unless a motion is ex parte, he should set it for hearing, with sufficient notice to the other party. RESPECT FOR COURTS AND JUDICIAL OFFICERS Canon 11 A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by other Disrespect toward the court would necessarily undermine the confidence of the people in the honesty and integrity of the members of the court, and consequently to lower or degrade the administration of justice by the court. All lawyers are expected to recognize the authority of the Supreme Court and obey its lawful processes and orders. Despite errors which one may impute on the orders of the Court, these must be respected, especially by the bar or the lawyers who are themselves officers of the courts (Yap-Paras v. Atty. Paras, A.C. No. 4947, June 7, 2007).

A: No. Criticism or comment made in good faith on the correctness or wrongness, soundness or unsoundness, of a decision of the Court would be welcome for, if well-founded, and such reaction can enlighten the court and contribute to the correction of an error if committed (In re: Sotto, 82 Phil. 595). The ruling in Estrada v. Arroyo, being a final judgment, has long put to end any question pertaining to the legality of the ascension of Arroyo into the presidency. By reviving the issue on the validity of the assumption of Gloria Macapagal-Arroyo to the presidency, Attorney Paguia is vainly seeking to breathe life into the carcass of a long dead issue. Attorney Paguia has not limited his discussions to the merits of his client's case within the judicial forum; indeed, he has repeated his assault on the Court in both broadcast and print media.

In case of conflict between his duty to the court and his duty to the society and his client, the other must yield since it is his duty to the court that should take precedence. Q: Atty. Z criticized the court in a tactful manner, not in any way causing disrespect. Is that allowed? A: Yes. The fact that a person is a lawyer does not deprive him of the right, as enjoyed by every citizen, to comment on and criticize the actuations of a judge but it is the cardinal condition of all criticisms that it shall be bona fide, and shall not spill over the walls of decency and propriety (Zaldivar v. Gonzales, G.R. Nos. 79690-707, Feb. 1, 1989).

The Supreme Court does not claim infallibility; it will not denounce criticism made by anyone against the Court for, if well-founded, can truly have constructive effects in the task of the Court, but it will not countenance any wrongdoing nor allow the erosion of our people’s faith in the judicial system, let alone, by those who have been privileged by it to practice law in the Philippines. Canon 11 of the Code of Professional Responsibility mandates that the lawyer should observe and maintain the respect due to the courts and judicial officers and, indeed, should insist on similar conduct by others. In liberally imputing sinister and devious motives and questioning the impartiality,

NOTE: What a lawyer can ordinarily say against a concluded litigation and the manner the judge handed down the decision therein may not generally be said to a pending action. The court, in a pending litigation, must be shielded from embarrassment and influence in performing the important duty of deciding it. On the other hand, once litigation is concluded, the judge who decided on it is subject to the same criticism as any other public official because then his ruling becomes public property and is thrown open to public consumption.

Q: Attorney Paguia, asserts that the inhibition of the members of the Supreme Court from hearing the

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics integrity, and authority of the members of the Court, Atty. Paguia has only succeeded in seeking to impede, obstruct and pervert the dispensation of justice (Estrada v. Sandiganbayan, G.R. Nos. 159486-88, Nov. 25, 2003).

Misrepresentation in the Supreme Court”, A.M. No. 1010-4-SC, Oct. 19, 2010). Q: The Court En Banc issued a Resolution directing respondent Atty. De Vera to explain why he should not be cited for indirect contempt of court for uttering some allegedly contemptuous statements in relation to the case involving the constitutionality of the Plunder Law which was then pending. Atty. De Vera admitted the report in the November 6, 2002 issue of the Philippine Daily Inquirer that he “suggested that the Court must take steps to dispel once and for all these ugly rumors and reports” that “the Court would vote in favor of or against the validity of the Plunder Law” to protect the credibility of the Court. Is the statement of Atty. De Vera disrespectful to the courts?

Q: Members of the faculty of the UP College of Law published a statement on the allegations of plagiarism and misrepresentation relative to the Court’s decision in Vinuya v. Executive Secretary. The authors directly accused the Court of perpetrating extraordinary injustice by dismissing the petition of the comfort women said case. The insult to the members of the Court was aggravated by imputations of deliberately delaying the resolution of the said case, its dismissal on the basis of “polluted sources,” the Court’s alleged indifference to the cause of petitioners, as well as the supposed alarming lack of concern of the members of the Court for even the most basic values of decency and respect.

A: Yes. Indeed, freedom of speech includes the right to know and discuss judicial proceedings, but such right does not cover statements aimed at undermining the Court’s integrity and authority, and interfering with the administration of justice. Freedom of speech is not absolute, and must occasionally be balanced with the requirements of equally important public interests, such as the maintenance of the integrity of the courts and orderly functioning of the administration of justice.

A: While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic society, there is also a general consensus that healthy criticism only goes so far. Many types of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially devastating attacks and unjust criticism can threaten the independence of the judiciary. The court must “insist on being permitted to proceed to the disposition of its business in an orderly manner, free from outside interference obstructive of its functions and tending to embarrass the administration of justice.”

Thus, the making of contemptuous statements directed against the Court is not an exercise of free speech; rather, it is an abuse of such right. Unwarranted attacks on the dignity of the courts cannot be disguised as free speech, for the exercise of said right cannot be used to impair the independence and efficiency of courts or public respect therefore and confidence therein (In Re: Published Alleged Threats by Atty. Leonard de Vera, A.M. No. 01-12-03-SC, July 29, 2002).

The Court could hardly perceive any reasonable purpose for the faculty’s less than objective comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the Court’s honesty, integrity and competence in addressing the motion for its reconsideration. As if the case on the comfort women’s claims is not controversial enough, the UP Law Faculty would fan the flames and invite resentment against a resolution that would not reverse the said decision. This runs contrary to their obligation as law professors and officers of the Court to be the first to uphold the dignity and authority of this Court, to which they owe fidelity according to the oath they have taken as attorneys, and not to promote distrust in the administration of justice. Their actions likewise constitute violations of Canons 10, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility (Re: Letter of the UP Law Faculty entitled “Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Rule 11.01, Canon 11 A lawyer shall appear in court properly attired. As an officer of the court and in order to maintain the dignity and respectability of the legal profession, a lawyer who appears in court must be properly attired. Consequently, the court can hold a lawyer in contempt of court if he does not appear in proper attire. Any deviation from the commonly accepted norm of dressing in court (barong or tie, not both) is enough to warrant a citing for contempt. The traditional attires for male lawyers in the Philippines are the long-sleeve Barong Tagalog or coat and tie. Female lawyers appear in semi-formal attires. Judges also appear in the same attire in addition to black robes.

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DUTIES AND RESPONSIBILITIES OF A LAWYER his brethren in the profession. The use of abusive language by counsel against the opposing counsel constitutes at the same time disrespect to the dignity of the court justice. Moreover, the use of impassioned language in pleadings, more often than not, creates more heat than light (Buenaseda v. Flavier, G.R. No. 106719, Sept. 21, 1993).

Rule 11.02, Canon 11 A lawyer shall punctually appear at court hearings. Punctuality is demanded by the respect which a lawyer owes to the court, the opposing counsel and to all the parties to the case (Funa, 2009).

The duty to observe and maintain respect is not a one-way duty from a lawyer to a judge. A judge should also be courteous to counsel, especially those who are young and inexperienced and to all those appearing or concerned in the administration of justice.

Rule 11.03, Canon 11 A lawyer shall abstain from scandalous, offensive, or menacing language or behavior before the Courts.

Q: An administrative case and disbarment proceeding was filed against MDS, a Lady Senator for uttering in her privilege speech delivered in the Senate floor where she was quoted as saying that she wanted “to spit on the face of Chief Justice and his cohorts in the Supreme Court,” and calling the Court a “Supreme Court of idiots.” She alleged that it was considered as part of her Parliamentary immunity as such was done during the session. Is she correct?

Q: After the parties had filed their respective briefs with the Court of Appeals and before the latter's resolution submitting the case for decision was released, respondent lawyers, Atty. Depasucat, and others filed a pleading "Manifestation of Usurpation of Authority of the Hon. Court of Appeals from a SelfConfessed Briber of Judges", which stated that plaintiff-appellant Uy had, in fact, confessed to bribing judges. Consequently, Uy filed a verified complaint against respondent lawyers for gross misconduct. Should the respondents be disciplined for having authored and filed the “Manifestation of Usurpation of Authority of the Hon. Court of Appeals from a Self-Confessed Briber of Judges”?

A: Yes, because her statements, being part of her privilege speech as a member of Congress, were covered by the constitutional provision on parliamentary immunity. Indeed, her privilege speech is not actionable criminally or in a disciplinary proceeding under the Rules of Court. However, as a member of the Bar, the Court wishes to express its deep concern about the language Senator MDS used in her speech and its effect on the administration of justice. To the Court, the lady senator has undoubtedly crossed the limits of decency and good professional conduct. It is at once apparent that her statements in question were intemperate and highly improper in substance. MDS should have taken to heart in the first place the ensuing passage in In Re: Vicente Sotto that “x x x [I]f the people lose their confidence in the honesty and integrity of this Court and believe that they cannot expect justice therefrom, they might be driven to take the law into their own hands, and disorder and perhaps chaos would be the result.”

A: Yes. Respondents went overboard by stating in the Manifestation that complainant "had in fact confessed to bribery and telling one of the judges, after the judges allegedly refused to give in to their demands, by using illegally taped conversations-both actual and/or by telephone". It belied their good intention and exceeded the bounds of propriety, hence, not arguably protected; it is the surfacing of a feeling of contempt towards a litigant; it offends the court before which it is made. A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the courts. It must be remembered that the language vehicle does not run short of expressions which are emphatic but respectful, convincing but not derogatory, illuminating but not offensive. It has been said that a lawyer's language should be dignified in keeping with the dignity of the legal profession. It is the duty of Atty. Depasucat et al. as members of the Bar to abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged (Uy v. Depasucat, A.C. No. 5332, July 29, 2003).

No lawyer who has taken an oath to maintain the respect due to the courts should be allowed to erode the people’s faith in the judiciary. In this case, the lady senator clearly violated Canon 8, Rule 8.01 and Canon 11 of the Code of Professional Responsibility (Pobre v. Senator Santiago, A.C. No. 7399, Aug. 25, 2009). NOTE: The lawyer’s duty to render respectful subordination to the courts is essential to the orderly administration of justice. Hence, in the assertion of the client’s rights, lawyers – even those gifted with superior intellect, are enjoined to rein up their tempers (Zaldivar v. Gonzalez, G.R. Nos. 79690-707, Oct. 7, 1988).

NOTE: The language of a lawyer, both oral and written, must be respectful and restrained in keeping with the dignity of the legal profession and with his behavioral attitude toward

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics statements that impaired public confidence in the integrity of the Judiciary. The making of contemptuous statements directed against the court is not an exercise of free speech; rather, it is an abuse of such right.

Rule 11.04, Canon 11 A lawyer shall not attribute to a Judge motives not supported by the record or have no materiality to the case. Every citizen has the right to comment upon and criticize the actuations of public officers. This right is not dismissed by the fact that the criticism is aimed at a judicial authority, or that it is articulated by a lawyer.

A letter furnished to all the members of the SC, even if a copy was not disseminated to the media, does not enjoy the mantle of right to privacy. Letters addressed to the individual justices in connection with the performance of their judicial functions become part of the judicial record and are matter of concern for the entire court.

Such right is especially recognized where the criticism concerns a concluded litigation, because the Court’s actuations are thrown open to public consumption. Courts thus treat with forbearance and restraint a lawyer who vigorously assails their actuations for courageous and fearless advocates are the strands that weave durability into the tapestry of justice.

Atty. Roxas is guilty of indirect contempt of court for an improper conduct tending, directly and indirectly, to impede, obstruct or degrade the administration of justice; and with his contemptuous and defamatory statements, Atty. Roxas likewise violated Canon 11 of the CPR particularly Rules 11.03 and 11.04 (Roxas v. Zuzuarregui, et al., G.R. No. 152072, July 12, 2007).

Post litigation utterances or publications made by lawyers, critical of the courts and their judicial actuations, whether amounting to a crime or not, which transcend the permissible bounds of fair comment and legitimate criticism and thereby tend to bring them into dispute or to subvert public confidence in their integrity and in the orderly administration of justice, constitute grave professional misconduct which may be visited with disbarment or other lesser appropriate disciplinary sanctions by the SC in the exercise of the prerogatives inherent in it as the duly constituted guardian of the morals and ethics of the legal fraternity (In Re: Almacen, G.R. No. L-27654, Feb. 18, 1970).

Q: When is public comment and criticism of a court decision permissible and when would it be improper? (1997 Bar Question) A: A lawyer, like every citizen, enjoys the right to comment on and criticize the decision of a court. As an officer of the court, a lawyer is expected not only to exercise that right but also to consider it his duty to expose the shortcomings and indiscretions of courts and judges. But such right is subject to the limitations that it shall be bona fide. It is proper to criticize the courts and judges, but it is improper to subject them to abuse and slander, degrade them or destroy public confidence in them. Moreover, a lawyer shall not attribute to a judge motives not supported by the record or have no materiality in the case (CPR, Rule 11.04).

Q: Atty. Romeo Roxas was charged for contempt when he, in a letter addressed to Associate Justice Chico-Nazario, stated that Justice Nazario decided the cases in favor of Zuzuarregui, ordering Attys. Roxas and Pastor to pay the former P17,073,224.84 on considerations other than the pure merits of the case and called the SC a “dispenser of injustice." He ended his letter by mocking her when he said “sleep well if you still can” and that “her earthly life will be judged by the Supreme Dispenser of Justice where only the merits of your Honor’s life will be relevant and material and where technicalities can shield no one from his or her wrongdoings." In the written explanation of Atty. Roxas, he extended apologies to Justice Nazario. He said he was merely exercising his rights to express a legitimate grievance or articulate fair criticisms of the court’s ruling. Moreover, according to him, instead of resorting to public criticisms, he chose to ventilate his criticisms in a very discreet and private manner by writing a personal letter. Should Atty. Roxas be punished for the contents of his letter?

NOTE: A lawyer should be reminded of his primary duty to assist the court in the administration of justice. The relations between counsel and judge should be based on mutual respect and on a deep appreciation by one of the duties of the other. It is upon their cordial relationship and mutual cooperation that the hope of our people for speedy and efficient justice rests (Abiera v. Maceda, A.C. No. RTJ-91-660, June 30, 1994). If the court official or employee or a lawyer is to be disciplined, the evidence against him should be substantial, competent and derived from direct knowledge, not on mere allegations, conjectures, suppositions or on the basis of hearsay (Cervantes v. Atty. Sabio, A.C. No. 7828, Aug. 11, 2008).

A: Yes. Atty. Roxas’ letter contains defamatory UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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DUTIES AND RESPONSIBILITIES OF A LAWYER given by the trial court, Atty. Villar Jr. failed to file his formal offer of exhibits. The dismissal of the collection case prompted Jardin to file a verified affidavit-complaint for the disbarment of Atty. Villar Jr. with the Court, wherein he alleged that after the dismissal of the collection case, he terminated the services of Atty. Villar Jr. as his counsel; that Atty. Villar Jr. failed to return the originals of the documentary exhibits entrusted to him; and that Atty. Villar Jr. finally handed over the documents only as an aftermath of a heated argument he had with the Jardin's wife. Was Atty. Villar Jr. remiss in his duties as counsel when he failed to file his formal offer of exhibit?

Rule 11.05, Canon 11 A lawyer shall submit grievances against a Judge to the proper authorities only. Proper venue/forum for the filing of the following cases NATURE OF THE CASE If administrative in nature

WHERE TO FILE It shall be filed with the Office of the Court Administrator of the Supreme Court. If criminal and not It shall be filed with the purely administrative Office of the Ombudsman, also with the OCP. If it involves a Justice of It must be coursed the Supreme Court through the House of based on impeachable Representative and the offenses Senate in accordance with the rules on impeachment. Source: (CPR Annotated, PhilJA)

A: Yes. The record clearly shows that Atty. Villar Jr. has been languid in the performance of his duties as counsel for the complainant. He was given by the Trial Court several extensions of time. Therefore, Atty. Villar Jr. had three (3) months and nine (9) days within which to file the formal offer of exhibits. Atty. Villar Jr. did not bother to give an explanation even in mitigation or extenuation of his inaction. Evidently, Atty. Villar Jr. has fallen short of the competence and diligence required of every member of the Bar. It is indeed dismaying to note Atty. Villar Jr.’s patent violation of his duty as a lawyer. He committed a serious transgression when he failed to exert his utmost learning and ability and to give entire devotion to his client's cause. His client had relied on him to file the formal offer of exhibits among other things. But he failed him. Resulting as it did in the dismissal of the case, his failure constitutes inexcusable default (Jardin v. Atty. Villar, Jr., A.C. No. 5474, Aug. 28, 2003).

NOTE: An administrative complaint is not an appropriate remedy where judicial recourse is still available, such as a motion for reconsideration, an appeal, or a petition for certiorari, unless the assailed order or decision is tainted with fraud, malice, or dishonesty (Santiago III v. Justice Enriquez, Jr., A.M. No. CA-09-47-J, Feb. 13, 2009).

ASSISTANCE IN THE SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE Canon 12 A lawyer shall exert every effort and consider it his duty to assist in the speedy and efficient administration of justice

Q: Judgment was rendered against Eternal Gardens ordering it to reconvey the cemetery to the rightful owners. Despite the final decision of the SC, Eternal Gardens was able to prevent the execution for 17 years, rendering the judgment ineffectual. They filed several petitions and motions for reconsideration with the trial court and the CA despite the fact that it would never prosper as the trial court’s decision had long become final before the said petitions were filed. Did the lawyers violate Canon 12 of the CPR?

A lawyer must exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. A lawyer is bound by his oath to serve his client with utmost zeal and dedication and shall conduct himself according to the best of his knowledge and discretion (Antiquiera, CPR, p. 50).

A: While lawyers owe their entire devotion to the interest of the client and zeal in the defense of their client’s right, they are also officers of the court, bound to exert every effort to assist in the speedy and efficient administration of justice. They should not misuse the rules of procedure to defeat the ends of justice or unduly delay a case, impede the execution of a judgment or misuse court processes. The facts and the

The filing of another action concerning the same subject matter, in violation of the doctrine of res judicata, runs contrary to this Canon (Lim v. Montano, A.C. No. 5653, Feb. 27, 2006). Q: Jardin engaged the services of Atty. Villar Jr. to represent him in a collection case. The case went its course, but later despite several extensions of time

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics law should advise them that a case such as this should not be permitted to be filed to merely clutter the already congested judicial dockets. They do not advance the cause of law or their clients by commencing litigations that for sheer lack of merit do not deserve the attention of the courts (Eternal Gardens Memorial Park Corporation v. CA, G.R. No. 123698, Aug. 5, 1998).

pending manifestation and motion with the CA, which was notarized by Atty. Manlangit. Both Atty. Manlangit and Atty. Gana knew the relevant case status after having invariably acted as counsel of Top Rate before the trial court, the Court of Appeals and the Supreme Court. Top Rate then filed a series of motions with the SC, all of which failed to state that Top Rate still has a pending manifestation and motion with the CA. It was only when it withdrew its Petition for Review on Certiorari that Top Rate bared before the SC the existence of the said manifestation and motion pending with the CA. Should Top Rate and its counsel be found guilty of forum shopping?

Rule 12.01, Canon 12 A lawyer shall not appear for trial unless he has adequately prepared himself on the law and the facts of his case, the evidence he will adduce and the order of its profference. He should also be ready with the original documents for comparison with the copies.

A: Yes. Although Top Rate as principal party executed the several certifications of non-forum shopping, Atty. Gana and Atty. Manlangit cannot deny responsibility therefore since Atty. Manlangit notarized the certifications and both of them definitely knew the relevant case status after having invariably acted as counsel of Top Rate before the trial court, the Court of Appeals and the Supreme Court. Attys. Gana and Manlangit of the Gana and Manlangit Law Office, counsel of record of Top Rate, are administratively liable for grotesque violations of the Code of Professional Responsibility.

A newly hired counsel who appears in a case in the midstream is presumed and obliged to acquaint himself with all the antecedent processes and proceedings that have transpired in the record prior to his takeover (Villasis v. CA, G.R. Nos. L- 36874-76, Sept. 30, 1974). Rule 12.02, Canon 12 A lawyer shall not file multiple actions arising from the same cause. (1991, 1997, 1998, 2002 Bar Questions)

It is an act of malpractice for it trifles with the courts, abuses their processes, degrades the administration of justice and adds to the already congested court dockets. What is critical is the vexation brought upon the courts and the litigants by a party who asks different courts to rule on the same or related causes and grant the same or substantially the same relief and in the process creates the possibility of conflicting decisions being rendered by different forums upon the same issues, regardless of whether the court, in which one of the suits was brought, has no jurisdiction over the action (Top Rate Construction and General Services v. Paxton Devt. Corp., G.R. No. 151081, Sept. 11, 2003).

The mere filing of several cases based on the same incident does not necessarily constitute forum shopping. The question is whether the several actions filed involve the same transactions, essential facts and circumstances. If they involve essentially different facts, circumstances and causes of action, there is no forum shopping (Paredes v. Sandiganbayan, G.R. No. 108251, January 31, 1996). The essence of forum shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment (Foronda v. Atty. Guerrero, A.C. No. 5469, Aug. 10, 2004).

Possible consequences of forum shopping

NOTE: If same evidence supports both actions, there is also forum shopping.

1.

Q: The trial court declared Paxton Development Corporation (PDC) the lawful owner of the subject lots. CA affirmed. Top Rate, as the losing party, sought to have the said resolution set aside and thereafter filed with the Supreme Court a motion for extension of time to file a petition for review from the adverse CA decision and resolution. The motion contained a "verification/ certification" under oath as to non-forum shopping, without mentioning the UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

2.

3. 4.

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Summary dismissal without prejudice unless there is a willful or deliberate forum-shopping (RRC, Sec. 5, Rule 7). Penalty for direct contempt of court on the party and his lawyer in case of willful and deliberate forum-shopping (RRC, Sec. 5, Rule 7). Criminal action for a false certification of nonforum shopping and indirect contempt Disciplinary proceedings for the lawyer concerned (RRC, Sec. 5, Rule 7).

DUTIES AND RESPONSIBILITIES OF A LAWYER Rule 12.03, Canon 12 A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so. (2003 Bar Question)

Rule 12.05, Canon 12 A lawyer shall refrain from talking to his witness during a break or recess in the trial, while the witness is still under examination. The rule is designed to uphold and maintain fair play with the other party and to prevent the examining lawyer from being tempted to coach his own witness to suit his purpose.

The court censures the practice of counsels who secure repeated extensions of time to file their pleadings and thereafter simply let the period lapse without submitting the pleading or even an explanation or manifestation of their failure to do so (Achacoso v. CA, G.R. No. L-35867, June 28, 1973).

Guidelines in interviewing witnesses (2001, 2005 Bar Questions) 1.

Asking for extension of time must be in good faith. Otherwise, it is an obstruction of justice and the lawyer is subject to discipline (CPR Annotated, PhilJA).

2.

The same rule applies more forcefully to motion for continuance. Postponement is not a matter of right but of sound judicial discretion (Edrial v. Quilat- Quilat, G.R. No. 133625, Sept. 6, 2000).

3.

Rule 12.04, Canon 12 A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse court processes. 4. It is understandable for a party to make full use of every conceivable legal defense the law allows it. However, of such attempts to evade liability to which a party should respond, it must ever be kept in mind that procedural rules are intended as an aid to justice, not as means for its frustration. 5.

Once a judgment becomes final and executory, the prevailing party should not be denied the fruits of his victory by some subterfuge devised by the losing party. Unjustified delay in the enforcement of a judgment sets at naught the role of the courts in disposing justiciable controversies with finality (Aguilar v. Manila Banking Corporation, GR No. 157911, September 19, 2006).

A lawyer may interview a witness in advance of the trial to guide him in the management of the litigation; A lawyer may also interview a “prospective witness” for the opposing side in any civil and criminal action without the consent of opposing counsel or party; A lawyer must properly obtain statements from witnesses whose names were furnished by the opposing counsel or interview the employees of the opposing party even though they are under subpoena to appear as witnesses for the opposite side; If after trial resulting in defendant’s conviction, his counsel has been advised that a prosecution witness has committed perjury, it is not only proper but it is the lawyer’s duty to endeavor honorable means to obtain such witness’ reaction, even without advising the public prosecutor of his purpose and even though the case is pending appeal; and An adverse party, though he may be used as a witness, is not however a witness within the meaning of the rule permitting a lawyer to interview the witness of the opposing counsel.

NOTE: Although the law does not forbid an attorney to be a witness and at the same time an attorney in a cause, the courts prefer that counsel should not testify as a witness unless it is necessary and that they should withdraw from the active management of the case (PNB v. Uy Teng Piao, G.R. No. L- 35252, Oct. 21, 1932).

Lawyers should not resort to nor abet the resort of their clients, to a series of actions and petitions for the purpose of thwarting the execution of a judgment that has long become final and executory (Cobb-Perez v. Lantin, No. L-22320, May 22, 1968).

Rule 12.06, Canon 12 A lawyer shall not knowingly assist a witness to misrepresent himself or to impersonate another.

The writs of amparo and habeas data are extraordinary remedies which cannot be used as tools to stall the execution of a final and executory decision in a property dispute (Castillo v. Cruz, G.R. No. 182165, November 25, 2009).

Sanctions to a lawyer who instructs a witness to perpetuate misrepresentation Art. 184, Revised Penal Code provides: The lawyer who presented a witness knowing him to be a false witness is criminally liable for “Offering False Testimony in Evidence.”

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics Rule 12.08, Canon 12 A lawyer shall avoid testifying in behalf of his client, except: a. On formal matters, such as the mailing, authentication or custody of an instrument, and the like; or b. On substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel.

NOTE: The lawyer who is guilty of the above is both criminally and administratively liable.

Criminal liability misrepresentation

of

witness

who

commits

The witness who commits the misrepresentation is criminally liable for “False Testimony” either under Art. 181, 182 or 183, Revised Penal Code, depending upon the nature of the case.

The function of a witness is to tell the facts as he recalls them in answer to questions. The function of an advocate is that of a partisan. It is difficult to distinguish between the zeal of an advocate and the fairness and impartiality of a disinterested witness.

Rule 12.07, Canon 12 A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him. Q: Nolito Boras was convicted of statutory rape. The victim, a minor, testified and the manner of examination was excessive. The lawyer of Boras was asking questions like, “Did you have any opportunity at the time you were raped to hold the penis of Nolito Boras?”, “At the time, when you were raped by Nolito Boras, is his penis hard or soft?”, and “Did you see your uncle Cerilo after the accused stop pushing and pulling his penis to your vagina or while he was still in the process of pushing and pulling his penis to your vagina?” Did the lawyer of Nolito Boras violate Rule 12.07?

Matters to which a lawyer CANNOT testify on (TARCC) 1.

When, as an attorney, he is to Testify on the theory of the case; 2. When such would Adversely affect any lawful interest of the client with respect to which confidence has been reposed on him; 3. Having accepted a Retainer, he cannot be a witness against his client; 4. He cannot serve Conflicting interests; and 5. When he is to violate the Confidence of his client. Matters to which a lawyer CAN testify on (FETAD)

A: Yes. It must be stressed that in dealing with rape cases of children, especially those below 12 years of age, due care must be observed by the trial court in handling the victim. In fact, more often than not, the grueling experience in the trial court in the course of direct examination and cross-examination is more traumatic than the fact of the rape itself. On such occasions, mishandling of victims lead to psychological imbalances which, if not properly treated by medical experts, will lead to an abnormal behavioral response against the idea of sex itself and disturbed interaction with the opposite or same sex.

1.

2. 3.

4. 5.

By subjecting her into explaining whether she was forced or intimidated is excessive. It is because proof of force and intimidation is unnecessary in statutory rape. Considering that there is a medical report substantiating the allegations made by the victim, the manner of examination of the victim must be tempered. Especially in this case since the child is only six years old who remains uncorrupted (People v. Boras, G.R. No. 127495, Dec. 22, 2000).

On Formal matters, such as the mailing, authentication or custody of instrument and the like; Acting as an Expert on his fee; On substantial matters in cases where his Testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel; Acting as an Arbitrator; and Deposition. RELIANCE ON MERITS OF CASE AND AVOIDANCE FROM ANY IMPROPRIETY WHICH TENDS TO INFLUENCE OR GIVES THE APPEARANCE OF INFLUENCE UPON THE COURTS

Canon 13 A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court It is unethical for a lawyer to give an appearance as if he is capable of influencing judges and court personnel.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

44

DUTIES AND RESPONSIBILITIES OF A LAWYER Giving of gifts to the judges are discouraged as it tend to give an appearance of influencing the conduct of judicial function or breeding familiarity with judges (Antiquiera, 1992).

inviting him to be a principal sponsor at the wedding of his son. Rule 13.02, Canon 13 A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party.

It is reprehensible for a lawyer to wrongfully use the name of the law office for the purpose of “giving more weight and credit to the pleading.” Motions and pleadings filed in courts are acted upon in accordance with their merits or lack of it, and not on the reputation of the law firm or the lawyer filing the same (Rodica v. Atty. Lazaro, et al. A.C. No. 9259, August 23, 2012).

Prejudicial Publicity There must be an allegation and proof that the judges have been unduly influenced, not simply that they might be, by barrage of publicity (CPR Annotated, PhilJA).

Rule 13.01, Canon 13 A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with judges.

NOTE: The restriction does not prohibit issuances of statements by public officials charged with the duty of prosecuting or defending actions in court. NOTE: In a concluded litigation, a lawyer enjoys a wider latitude of comment on or criticize the decision of a judge of his actuation. Thus, it has been held that a newspaper publication tending to impede, obstruct, embarrass or influence the courts in administering justice in a pending case constitutes criminal contempt, but the rule is otherwise after the litigation is ended (In re: Loazano, 54 Phil. 801, July 24, 1930).

The rule is designed to protect the good name and reputation of the judge and the lawyer. Lawyers should not seek for opportunity to cultivate familiarity with judges. A lawyer who resorts to such practices of seeking familiarity with judges dishonors his profession and a judge who consents to them is unworthy of his high office.

Q: Dumbledore, a noted professor of commercial law, wrote an article on the subject of letters of credit, which was published in the IBP Journal. Assume that he devoted a significant portion of the article to a commentary on how the Supreme Court should decide a pending case involving the application of the law on letters of credit. May he be sanctioned by the Supreme Court? Explain.

It is improper for a litigant or counsel to see a judge in chambers and talk to him about a matter related to the case pending in the court of said judge (Austria v. Masaquel, G.R. No. 22536, Aug. 31, 1967). Q: Atty. J requested Judge K to be a principal sponsor at the wedding of his son. Atty. J met Judge K a month before during the IBP-sponsored reception to welcome Judge K into the community, and having learned that Judge K takes his breakfast at a coffee shop near his (Judge K's) boarding house, Atty. J made it a point to be at the coffee shop at about the time that Judge K takes his breakfast. Comment on Atty. J's acts. Do they violate the Code of Professional Responsibility? (2000 Bar Question)

A: Yes, Professor Dumbledore may be sanctioned by the Supreme Court. Rule 13.02 of the CPR provides that “a lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party.” The Court in a pending litigation must be shielded from embarrassment or influence in its duty of deciding the case.

A: Yes, his actions violate the Code of Professional Responsibility. Canon 13 of the said Code provides that a lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court. Rule 13.01 of the same Code provides that a lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for, cultivating familiarity with judges. Atty. J obviously sought opportunity for cultivating familiarity with Judge K by being at the coffee shop where the latter takes his breakfast, and is extending extraordinary attention to the judge by

Q: Assume Dumbledore did not include any commentary on the case. Assume further after the Supreme Court decision on the case had attained finality, he wrote another IBP Journal article, dissecting the decision and explaining why the Supreme Court erred in all its conclusions. May he be sanctioned by the Supreme Court? Explain. (2008 Bar Question) A: He may not be sanctioned by the Supreme Court. Once a case is concluded, the judge who decided it is subject to the same criticism as any other public

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics official because his decision becomes public property and is thrown open to public consumption. The lawyer enjoys a wide latitude in commenting or criticizing the judge’s decision, provided that such comment or criticism shall be bona fide and not spill over the bounds of decency and propriety.

It is sufficient to establish the professional relation, that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession. An acceptance of the relation is implied on the part of the attorney from his acting on behalf of his client in pursuance of a request from the latter.

Rule 13.03, Canon 13 A lawyer shall not brook or invite interference by another branch or agency of the government in the normal course of judicial proceedings.

NOTE: If a person, in respect to his business affairs or any troubles of any kind, consults with his attorney in his professional capacity with the view to obtaining professional advice or assistance and the attorney voluntarily permits or acquiesce in such consultation, as when he listens to his client’s preliminary statement of his case or gives advice thereon, then the professional employment is regarded as established just as effective as when he draws his client’s pleading or advocates his client’s cause in court (Dee v. CA, G.R. No. 77439, Aug. 24, 1989).

The reason for this rule is that such action will be contrary to the principle of separation of powers. All lawyers must uphold, respect and support the independence of the judiciary. This independence from interference is made to apply against all branches and agencies of the government (Funa, 2009).

Formation of the lawyer-client relationship The lawyer-client relationship is formed through the following: 1. Oral – When the counsel is employed without a written agreement, but the conditions and amount of attorney’s fees are agreed upon. 2. Express – When the terms and conditions including the amount of fees are explicitly stated in a written document, which may be a private or public document. Written contract of attorney’s fees is the law between the lawyer and the client. 3. Implied – When there is no agreement, whether oral or written, but the client allowed the lawyer to render legal services not intended to be gratuitous without objection and client is benefited by reason thereof.

The Supreme Court accordingly administered a reprimand to Bumanlag for gross ignorance of law and of the Constitution in having asked the President to set aside by decree the Court’s decision which suspended him for two years from the practice of law (De Bumanlag v. Bumanlag, A.M. No. 188, Nov. 29, 1976). DUTIES AND RESPONSIBILITIES OF A LAWYER TO THE CLIENTS Characteristics of attorney-client relationship 1. 2.

3.

Strictly personal – Prohibits the delegation of work without the client’s consent Highly confidential a. Communication made in the course of lawyers professional employment; and b. Communication intended to be confidential Fiduciary a. Hold in trust all moneys and properties of his client that may come into his possession; b. When a lawyer enforces a charging lien against his client, the relationship is terminated; and c. An attorney cannot represent adverse interest unless the parties consent to the representation after full disclosure of facts

Rules protecting the attorney-client relationship 1. 2. 3. 4. 5.

Necessity of a contract between lawyer and client

Three principal types of professional activity of a lawyer (LAP)

The absence of a written contract will not preclude a finding that there is a professional relationship. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Best effort must be exerted by the attorney to protect his client’s interest; The attorney must promptly account for any fund or property entrusted by or received for his client; An attorney cannot purchase his client’s property or interest in litigation; The privacy of communications shall at all times upheld; An attorney cannot represent a party whose interest is adverse to that of his client even after the termination of the relation.

1. 2.

46

Legal advice and instructions to clients to inform them of their rights and obligations; Appearance for clients before public tribunals which possess power and authority to determine

DUTIES AND RESPONSIBILITIES OF A LAWYER

3.

rights of life, liberty, and property according to law, in order to assist in proper interpretation and enforcement of law; and Preparation for clients of documents requiring knowledge of legal principles not possessed by ordinary layman (CPR Annotated, PhilJA).

preparation and the proposed filing of the petition was only incidental to their personal transaction (Uy v. Atty. Gonzales, A.C. No. 5280, Mar. 30, 2004). AVAILABILITY OF SERVICE WITHOUT DISCRIMINATION

Q: Uy engaged the services of Atty. Gonzales to prepare and file a petition for the issuance of a new certificate of title. Uy confided with him the circumstances surrounding the lost title and discussing the fees and costs. When the petition was about to be filed, Atty. Gonzales went to Uy’s office and demanded a certain amount from him other than what they had previously agreed upon. Uy found out later that instead of filing the petition for the issuance of a new certificate of title, Atty. Gonzales filed a letter- complaint against him with the Office of the Provincial Prosecutor for “falsification of public documents.” The letter-complaint contained facts and circumstances pertaining to the transfer certificate of title that was the subject matter of the petition which Atty. Gonzales was supposed to have filed. Should Atty. Gonzales be suspended for violating the lawyer-client relationship when he filed a complaint for “falsification of public documents” against his client using facts connected with the latter’s petition?

Canon 14 A lawyer shall not refuse his services to the needy The poor and indigent should not be further disadvantaged by lack of access to the Philippine legal system. Lawyer’s right to decline employment (1990, 1993, 2000, 2002, 2006 Bar Questions) GR: A lawyer is not obliged to act as legal counsel for any person who may wish to become his client. He has the right to decline employment. XPNs: 1. A lawyer shall not refuse his services to the needy (Canon 14). 2. He shall not decline to represent a person solely on account of the latter’s race, sex, creed or status in life or because of his own opinion regarding the guilt of said person (Rule 14.01); 3. He shall not decline, except for serious and efficient cause like a. If he is not in a position to carryout effectively or competently; and b. If he labors under a conflict of interest between him and the prospective clien. (Rule 14.03).

A: No. As a rule, an attorney-client relationship is said to exist when a lawyer voluntarily permits or acquiesces with the consultation of a person, who in respect to a business or trouble of any kind, consults a lawyer with a view of obtaining professional advice or assistance. It is not essential that the client should have employed the attorney on any previous occasion or that any retainer should have been paid, promised or charged for, neither is it material that the attorney consulted did not afterward undertake the case about which the consultation was had, for as long as the advice and assistance of the attorney is sought and received, in matters pertinent to his profession.

Legal aid cases Legal aid cases are those actions, disputes and controversies that are criminal, civil and administrative in nature in whatever stage, wherein an indigent and pauper litigants need legal representation.

Evidently, the facts alleged in the complaint for “estafa through falsification of public documents” filed by Atty. Gonzales against Uy were obtained by Atty. Gonzales due to his personal dealings with Uy. Whatever facts alleged by Atty. Gonzales against Uy were not obtained by Atty. Gonzales in his professional capacity but as a redemptioner of a property originally owned by his deceased son and therefore, when Atty. Gonzales filed the complaint for estafa against Uy, which necessarily involved alleging facts that would constitute estafa, Atty. Gonzales was not, in any way, violating Canon 21. Clearly, there was no attorneyclient relationship between Atty. Gonzales and Uy. The

Rationale for establishing legal aid services Legal aid is not a matter of charity. It is a means for the correction of social imbalances that may and often do lead to injustice, for which reason it is a public responsibility of the Bar. The spirit of public service should, therefore, underlie all legal aid offices. The same should be so administered as to give maximum possible assistance to the indigent and deserving members of the community in all cases, matters and situations in which legal aid may be necessary to

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Legal Ethics forestall an injustice (Public Service. Sec. 1 Art. 1 IBP Guidelines on Legal Aid).

b) A lawyer may also accept a losing civil case, provided that, in so doing, he must not engage in dilatory tactics and must advise his client about the prospects and advantage of settling the case through a compromise to the extent of representing indigents, defenseless and the oppressed.

Q: Are there instances where a lawyer has the duty to decline employment? (1993 Bar Question) A: A lawyer should decline no matter how attractive the fee offered may be if its acceptance will involve: (RACCAA) 1. A violation of any of the Rules of the legal profession; 2. Advocacy in any manner in which he had intervened while in the government service; 3. Nullification of a Contract which he prepared; 4. Employment with a Collection agency which solicits business to collect claims; 5. Employment, the nature of which might easily be used as a means of Advertising his professional services of his skill; or 6. Any matter in which he knows or has reason to believe that he or his partner will be an essential witness for the prospective client.

SERVICES REGARDLESS OF PERSON’S STATUS Rule 14.01, Canon 14 A lawyer shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life, or because of his own opinion regarding the guilt of said person. Q: Atty. DD’s services were engaged by Mr. BB as defense counsel in a lawsuit. In the course of the proceedings, Atty. DD discovered that Mr. BB was an agnostic and a homosexual. By reason thereof, Atty. DD filed a motion to withdraw as counsel without Mr. BB’s express consent. Is Atty. DD’s motion legally tenable? Reason briefly. (2004 Bar Question)

Reasons why a lawyer may not accept a “losing case” 1.

2.

3.

4.

A: No. Atty. DD’s motion is not legally tenable. He has no valid cause to terminate his services. His client, Mr. BB, being an agnostic and homosexual, should not be deprived of his counsel’s representation solely for that reason.

The attorney’s signature in every pleading constitutes a certificate by him that there is good cause to support it and that it is not interposed for delay, and willful violation of such rule shall subject him to disciplinary action; It is the attorney’s duty to “counsel or maintain such actions or proceedings only as appears to him to be just and only such defenses as he believes to be honestly debatable under the law”; A lawyer is not to encourage either the commencement or the continuance of an action or proceeding, or delay any man’s cause, for any corrupt motive or interest; and A lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or injure the opposite party or to work oppression or wrong.

SERVICES AS COUNSEL DE OFFICIO Rule 14.02, Canon 14 A lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de officio or as amicus curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid (1991, 1993, 1994, 1996, 1998, 2001, 2002, 2004, 2006 Bar Questions) A court may assign an attorney to render professional aid free of charge to any party in case, if upon investigation it appears that the party is destitute and unable to employ an attorney and that the services of counsel are necessary to secure the ends of justice and to protect the rights of the party. It shall be the duty of the attorney so assigned to render the required service, unless he is excused therefrom by the court for sufficient cause shown (RRC, Sec. 31, Rule 138).

Q: Is there an instance when a lawyer may accept losing case? (1996, 2001, 2002, 2005 Bar Questions) a. In criminal case? b. In civil case? A: a) A lawyer may accept a “losing” criminal case since an accused is presumed to be innocent until his guilt is proven beyond reasonable doubt. Furthermore, CPR provides that a lawyer shall not decline to represent a person because of his opinion regarding the guilt of said person. Otherwise innocent persons might be denied proper defense (CPR, Rule 14.01). UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Counsel de oficio 1. 2.

48

Members of the bar in good standing; Any person, resident of the province and of good repute for probity and ability, in localities without lawyers

DUTIES AND RESPONSIBILITIES OF A LAWYER Considerations in appointing a counsel de oficio

the most compelling and cogent reasons.

1. 2. 3.

Obviously, in the instant case, the aforenamed defense lawyers did not protect, much less uphold, the fundamental rights of the accused. Instead, they haphazardly performed their function as counsel de officio to the detriment and prejudice of the accused Sevilleno, however guilty he might have been found to be after trial (People v. Bermas, G.R. No. 120420, Apr. 21, 1999).

Gravity of offense Difficulty of questions that may arise; and Experience and ability of appointee

Q: A criminal complaint was filed against Bermas for the crime of rape. The Prosecutor issued a certification that the accused has waived his right to preliminary investigation. On arraignment, the accused was brought before the trial court without counsel. The court assigned a PAO attorney to be the counsel de officio who, during trial also made a request that she be relieved from the case. Another counsel was thereafter assigned as the new counsel de officio. When said new counsel for the accused failed to appear before the court for their presentation of evidence, the Court appointed another counsel de officio but, again, said counsel asked to be relieved from the case. The newly appointed counsel also failed to appear before the court.

VALID GROUNDS FOR REFUSAL Rule 14.03, Canon 14 A lawyer may not refuse to accept representation of an indigent client unless: a. He is in no position to carry out the work effectively or competently; b. He labors under a conflict of interest between him and the prospective client or between a present client and a prospective client. Grounds of refusal of appointment to be a Counsel de Oficio

Despite the said events, the lower court convicted the accused of death penalty for the violation of the crime of rape. The defense counsel claimed that the accused was deprived of due process, is he correct?

1. 2. 3.

A: Yes. The right to counsel must be more than just the presence of a lawyer in the courtroom or the mere propounding of standard questions and objections. The right to counsel means that the accused is amply accorded legal assistance extended by a counsel who commits himself to the cause for the defense and acts accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case, and his knowing the fundamental procedures, essential laws and existing jurisprudence.

4.

5. 6. 7.

Too many de officio cases assigned to the lawyer; (People v. Daeng, G.R. No. L- 34091, Jan. 30, 1973) Conflict of interest; (CPR, Rule 14.03) Lawyer is not in a position to carry out the work effectively or competently; (supra) Lawyer is prohibited from practicing law by reason of his public office which prohibits appearances in court; and Lawyer is preoccupied with too many cases which will spell prejudice to the new clients. Health reasons Extensive travel abroad

NOTE: A lawyer may refuse to handle cases due to these valid reasons. However, Rule 2.02 requires him to give advice on preliminary steps if he is asked until the client secures the services of counsel. He shall refrain from giving this preliminary advice if there is conflict of interest between a present client and a prospective one for extending such legal advice will create and establish an attorney-client relationship between them and may involve a violation of the rule prohibiting a lawyer from representing conflicting interest.

It is never enough that accused be simply informed of his right to counsel; he should also be asked whether he wants to avail himself of one and should be told that he can hire a counsel of his own choice if he so desires or that one can be provided to him at his request. A counsel de officio is expected to act with utmost diligence. A mere pro-forma appointment of de officio counsel who fails to genuinely protect the interests of the accused merits disapprobation. The exacting demands expected of a lawyer should be no less than stringent when one is a counsel de officio. He must take the case not as a burden but as an opportunity to assist in the proper dispensation of justice. No lawyer is to be excused from this responsibility except only for

Q: Assailed in a certiorari proceeding is an order of respondent Judge Climaco denying a motion filed by petitioner Ledesma to be allowed to withdraw as counsel de officio. One of the grounds for such a motion was his allegation that with his appointment as Election Registrar by the COMELEC, he was not in a position to devote full time to the defense of the two accused. The denial by respondent Judge of such

49

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics a plea, notwithstanding the conformity of the defendants, was due to “its principal effect of delaying the case." Is the denial of Judge Climaco correct?

Q: May a lawyer decline a request for free legal aid to an indigent accused made by a chapter of the IBP? Explain. (2002 Bar Question) A: No. Rule 14.02 of the CPR provides that “a lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de officio or as amicus curiae or a request from the IBP or any of its chapter for rendition of free legal aid.” He may, decline such appointment only for “serious and sufficient cause”.

A: Yes. The reluctance of Ledesma to comply with his responsibilities as counsel de officio is not an adequate ground for the motion of withdrawal. Membership in the bar is a privilege burdened with a condition. For some lawyers especially the neophytes in the profession being appointed as a lawyer is an irksome chore. Law is a profession dedicated to the ideal of service and not a mere trade. Thus is made manifest the indispensable role of a member of the Bar in the defense of an accused. Such a consideration could have sufficed for Ledesma not being allowed to withdraw as counsel de oficio. For he did betray by his moves his lack of enthusiasm for the task entrusted to him, to put matters mildly. He did point though to his responsibility as an election registrar. Assuming his good faith, no such excuse could be availed now. There is not likely at present, and in the immediate future, an exorbitant demand on his time (Ledesma v. Climaco, G.R. No. L-23815, June 28, 1974).

Q: Will your answer be different if the legal aid is requested in a civil case? (2002 Bar Question) A: The answer will not be exactly the same, because in a civil case, the lawyer can also decline if he believes the action or defense to be unmeritorious. He is ethically bound to maintain only actions and proceedings which appear to him to be just and only such defenses which he believes to be honestly debatable under the law. Rule 14.04, Canon 14 A lawyer who accepts the cause of a person unable to pay his professional fees shall observe the same standard of conduct governing his relations with paying clients. (2008 Bar Question)

Q: Ferrer was accused of having raped his 11-year-old stepdaughter. Ferrer’s counsel of record was PAO's Atty. Macabanding. During the pre-trial, both of them failed to appear. Ferrer was considered by the court as having jumped bail. Trial in absentia followed where Ferrer was assisted by another PAO lawyer, Atty. Alonto. Atty. Macabanding did not appear in all the subsequent hearings of the case. He did not inform the court of his whereabouts. Ferrer was found guilty beyond reasonable doubt of the crime charged and imposed upon him the death penalty. Did Atty. Macabanding live up to the demands expected from a counsel de officio?

Q: Atty. Mariano Dajoyag, Jr. is Ernesto Ramos’ counsel. He failed to perfect their appeal before the SC. He filed the petition for certiorari within the 20day period of extension that he sought in his 2nd motion for extension. He learned that the period of extension granted in his 1st motion for extension was inextendible only after the expiration of the 2 periods of extension that he prayed for. A complaint for negligence and malpractice was filed against him, to which he pleaded good faith and excusable neglect of duty. Is Atty. Dajoyag Jr. guilty of neglect of duty?

A: No. Ferrer was not properly and effectively accorded the right to counsel. Canon 18 of the CPR requires every lawyer to serve his client with utmost dedication, competence and diligence. He must not neglect a legal matter entrusted to him. For all intents, purposes and appearances, Atty. Macabanding abandoned his client, an accused who stands to face the death penalty.

A: Yes. Motions for extension are not granted as a matter of right but in the sound discretion of the court, and lawyers should never presume that their motions for extension or postponement will be granted or that they will be granted the length of time they prayed for. Further, regardless of the agreement Atty. Dajoyag, Jr. had with Ramos with respect to the payment of his fees, Atty. Dajoyag, Jr. owed it to Ramos to do his utmost to ensure that every remedy allowed by law is availed of. Rule 14.04 of the Code of Professional Responsibility enjoins every lawyer to devote his full attention, diligence, skills, and competence to every case that he accepts. Pressure and large volume of legal work do not excuse Atty. Dajoyag, Jr. for filing the petition for

While he faced the daunting task of defending an accused that had jumped bail, this unfortunate development is not a justification to excuse him from giving his heart and soul to the latter's defense. The exercise of their duties as counsel de officio meant rendering full meaning and reality to the constitutional precepts protecting the rights of the accused (People v. Ferrer, G.R. No. 148821, July 18, 2003). UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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DUTIES AND RESPONSIBILITIES OF A LAWYER certiorari out of time.

PRIVILEGED COMMUNICATIONS

Nevertheless, Atty. Dajoyag Jr. exerted efforts to protect the rights and interests of Ernesto Ramos, including trying to secure a reconsideration of the denial of the petition. Thus, he is guilty of simple neglect of duty (Ramos v. Dajoyag, Jr., A.C. No. 5174, Feb. 28, 2002).

Privileged communication A privileged communication is one that refers to information transmitted by voluntary act of disclosure between attorney and client in confidence and by means of which, in so far as the client is aware, discloses the information to no third person other than one reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it was given.

NOTE: The fact that his services are rendered without remuneration should not occasion a diminution in his zeal (Ledesma v. Climaco, G.R. No. L-23815, June 28, 1974).

CANDOR, FAIRNESS AND LOYALTY TO CLIENTS

Rule 15.02, Canon 15 A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client. (2008 Bar Question)

Canon 15 A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his clients

Disclosure of a prospective client A lawyer owes absolute fidelity to the cause of his client. He owes his client full devotion to his interest, warm zeal in the maintenance and defense of his rights.

The foregoing disqualification rule applies to prospective clients of a lawyer. Matters disclosed by a prospective client to a lawyer are protected by the rule on privileged communication even if the prospective client does not thereafter retain the lawyer or the latter declines the employment. It covers crimes and offenses already committed by the client.

It demands of an attorney an undivided allegiance, a conspicuous and high degree of good faith, disinterestedness, candor, fairness, loyalty, fidelity and absolute integrity in all his dealings and transactions with his clients and an utter renunciation of every personal advantage conflicting in any way, directly or indirectly, with the interest of his client (Oparel Sr. v. Abaria, A.C. No. 959, July 30, 1971).

The reason for this is to make the prospective client free to discuss whatever he wishes with the lawyer without fear that what he tells the lawyer will be divulged or used against him, and for the lawyer to be equally free to obtain information from the prospective client (CPR Annotated, PhilJA).

If they find that their client’s cause is defenseless, then it is their bounden duty to advise the latter to acquiesce and submit rather than to traverse the incontrovertible (Rollon v. Atty. Naraval, A.C. No. 6424, Mar. 4, 2005).

Requisites of privileged communication 1.

CONFIDENTIALITY RULE 2. Confidentiality It means the relation between lawyer and client or guardian and ward, or between spouses, with regard to the trust that is placed in the one by the other (Black’s Law Dictionary 7th Edition 1990, 2004).

3.

There is attorney-client relationship or a kind of consultancy requirement with a prospective client; The communication was made by the client to the lawyer in the course of the lawyer’s professional employment; and The communication must be intended to be confidential.

NOTE: The party who avers that the communication is privileged has the burden of proof to establish the existence of the privilege unless from the face of the document itself, it clearly appears that it is privileged. The mere allegation that the matter is privileged is not sufficient (People v. Sleeper, G.R. No. 22783, Dec. 3, 1924; Lapena Jr., 2009).

A lawyer shall preserve the confidences and secrets of his client even after the attorney-client relation is terminated (CPR, Canon 21). It is one of the duties of a lawyer, as provided for in the Rules of Court, to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client (RRC, Sec. 20 (e), Rule 138).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics Client identity

Coverage of the attorney-client privilege

Client identity is privileged where a strong probability exists that revealing the client’s name would implicate that client in the very activity for which he sought the lawyer’s advice (Regala v. Sandiganbayan, G.R. No. 105938, Sept. 20, 1996).

1. 2. 3.

Q: Rosa Mercado’s husband filed an annulment against her. Atty. Julito Vitriolo represented her. Thereafter, a criminal action against her was filed by the latter for falsification of public document. According to Atty. Vitriolo, she indicated in the Certificates of Live Birth of her children that she is married to a certain Ferdinand Fernandez, and that their marriage was solemnized on April 11, 1979, when in truth, she is legally married to Ruben Mercado and their marriage took place on April 11, 1978. Mercado claims that the criminal complaint disclosed confidential facts and information relating to the civil case for annulment handled by Vitriolo as her counsel. Did Atty. Julito Vitriolo violate the rule on privileged communication between attorney and client?

Duration of privileged communication The privilege continues to exist even after the termination of the attorney-client relationship. NOTE: The privilege character of the communication ceases only when waived by the client himself or after his death, by his heir or legal representative (Lapena, Jr. 2009).

Instances when communication is not privileged

A: The evidence on record fails to substantiate Mercado’s allegations. She did not even specify the alleged communication in confidence disclosed by Atty. Vitriolo. All of Mercado’s claims were couched in general terms and lacked specificity. Without any testimony from Mercado as to the specific confidential information allegedly divulged by Atty. Vitriolo without her consent, it is difficult, if not impossible to determine if there was any violation of the rule on privileged communication. It is not enough to merely assert the attorney-client privilege. The burden of proving that the privilege applies is placed upon the party asserting the privilege (Mercado v. Vitrilio, A.C. No. 5108, May 26, 2005).

A communication made by a client to a lawyer is not privileged in the following instances: 1. After pleading has been filed because such becomes part of public records. 2. When communication was intended by the client to be sent to a third person through his counsel. 3. When the communication sought by client is intended to aid future crime or perpetration of fraud. 4. When communication between attorney and client is heard by a third party. 5. When there is consent or waiver of the client. 6. When the law requires disclosure. 7. When disclosure is made to protect the lawyer’s rights .

Characteristics of privileged communication 1. 2. 3. 4.

5. 6.

Attorney-client privilege where legal advice is professionally sought from an attorney. The client must intend the above communication to be confidential. Attorney-client privilege embraces all forms of communication and action. As general rule, attorney-client privilege also extends to the attorney’s secretary, stenographer, clerk or agent with reference to any fact acquired in such capacity. The above duty is perpetual and communication is absolutely privileged from disclosure. Persons entitled to claim privileges

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Lawyer; Client; and Third persons who by reason of their work have acquired information about the case being handled such as: a. Attorney’s secretary, stenographer and clerk; b. Interpreter, messengers and agents transmitting communication; and c. An accountant, scientist, physician, engineer who has been hired for effective consultation. (RRC, Sec. 24(b), Rule 130)

NOTE: Even if the communication is unprivileged, the rule of ethics prohibits lawyers from voluntarily revealing or using to his benefit or to that of a third person, to the disadvantage of the client, the said communication unless the client consents thereto (RRC, Sec. 3, Rule 138-A).

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DUTIES AND RESPONSIBILITIES OF A LAWYER CONFLICT OF INTEREST (1991, 1992, 1993, 1994, 1997, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008 Bar Questions) d. Rule 15.01, Canon 15 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.

2.

Purpose of “conflict search”

invite suspicion of unfaithfulness or doubledealing in the performance of the lawyer’s duty of undivided fidelity and loyalty; and Whether, in the acceptance of a new relation, the lawyer would be called upon to use against a client confidential information acquired through their connection.

Sequential or successive representation – Involves representation by a law firm of a present client who may have an interest adverse to a prior or former client of the firm. (CPR Annotated, PhilJA)

By conducting a conflict search, the lawyer will be able to determine, in the first instance, if he is barred from accepting the representation through conflicts with his present clients or the lawyer’s own interest (CPR Annotated, PhilJA).

NOTE: What is material in determining whether there is a conflict of interest in the representation is probability, not certainty of conflict. (see discussion on disqualification or limitation of public officials in practicing law, congruentinterest representation conflict and adverse-interest conflict).

Three tests to determine existence of conflict of interest

Illustration: Existence of conflict of Interest 1. A v. B A and B are present clients.

1.

2.

3.

Conflicting Duties - When, on behalf of one client, it is the attorney’s duty to contest for that which his duty to another client requires him to oppose or when possibility of such situation will develop. Invitation of Suspicion - Whether the acceptance of the new relation will prevent a lawyer from the full discharge of his duty of undivided fidelity and loyalty to his client or will invite suspicion of unfaithfulness or double-dealing in the performance thereof. Use of Prior Knowledge Obtained - Whether a lawyer will be called upon in his new relation to use against the first client any knowledge acquired in the previous employment.

Types of conflict of interest 1.

Concurrent or multiple representations – Generally occurs when a lawyer represents clients whose objectives are adverse to each other, no matter how slight or remote such adverse interest may be.

2.

C v. D; E v. D C is the present client and D is not a present client in the same case but is a present client in another case.

3.

F v. G; H v. G F is the present client and G was a former client and the cases are related.

1.

I v. J; K v. J I is the present client and J was a former client in a case that is unrelated.

2.

L, M, N v. O, P, Q L, M, N are present clients but L and M joins O, P, Q (People v. Davis).

Other instances of conflict of interest 1. A corporate lawyer cannot join a labor union of employees in that corporation; 2. A lawyer of an insurance corporation who investigated an accident cannot represent the complainant/injured person; 3. As a receiver of a corporation, he cannot represent the creditor; 4. As a representative of the obligor, he cannot represent the obligee; and 5. As a lawyer representing a party in a compromise agreement, he cannot, subsequently, be a lawyer representing another client who seeks to nullify the agreement.

The tests for concurrent or multiple representations are: a. Whether a lawyer is duty-bound to fight for an issue or claim in behalf of one client and, at the same time, to oppose that claim for the other client; b. Whether the acceptance of a new relation would prevent the full discharge of the lawyer’s duty of undivided fidelity or loyalty to the client; c. Whether the acceptance of new relation would

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics Being a counsel-of-record of the other party is not a requisite to be guilty of representing conflicting interests

However, at a certain stage of the controversy before it reaches the court, a lawyer may represent conflicting interests with the consent of the parties. A common representation may work to the advantage of said parties since a mutual lawyer, with honest motivations and impartially cognizant of the parties' disparate positions, may well be better situated to work out an acceptable settlement of their differences, being free of partisan inclinations and acting with the cooperation and confidence of said parties. A lawyer is entitled to have and receive the just and reasonable compensation for services rendered at the special instance and request of his client and as long as he is honestly and in good faith trying to serve and represent the interests of his client, the latter is bound to pay his just fees (Dee v. Court of Appeals, G.R. No. 77439, Aug. 24, 1989).

To be guilty of representing conflicting interests, a counsel-of-record of one party need not also be counsel-of-record of the adverse party. He does not have to publicly hold himself as the counsel of the adverse party, nor make his efforts to advance the adverse party's conflicting interests of record --although these circumstances are the most obvious and satisfactory proof of the charge. It is enough that the counsel of one party had a hand in the preparation of the pleading of the other party, claiming adverse and conflicting interests with that of his original client. To require that he also be counsel-of-record of the adverse party would punish only the most obvious form of deceit and reward, with impunity, the highest form of disloyalty (Artueza v. Atty. Maderazo, A.C. No. 4354, Apr. 22, 2002).

Rule when the lawyer of the corporation and the board of directors of such corporation is the same

Q: Mr. X and his father went to the residence of Atty. Y to seek his advice regarding the problem of the alleged indebtedness of Mr. X's brother to Caesar's Palace, a well-known gambling casino at Las Vegas. Atty. Y assured Mr. X and his father that he would inquire into the matter, after which his services were reportedly contracted for P100,000. 00. Several long distance telephone calls and two trips to Las Vegas by him elicited the information that indeed Mr. X's brother has an outstanding account to Caesar’s but further investigations revealed that said account had actually been incurred by Ramon Sy, with Mr. X's brother merely signing for the chits. Atty. Y personally talked with the president of Caesar's Palace and convinced the latter’s president to go after Sy instead to which the latter agreed with the condition that Atty. Y should first convince Sy to pay the indebtedness to which Atty. Y succeeded. He was able to free Mr. X's brother from his indebtedness. Having thus settled the account of Mr. X's brother, Atty. Y sent several demand letters to Mr. X demanding the balance of P50,000.00 as attorney's fees. Mr. X, however, ignored these, thus, Atty. Y filed a complaint against Mr. X for the collection of attorney's fees and refund of transport fare and other expenses. Mr. X claimed, that at the time Atty. Y was rendering services to Mr. X, he was actually working "in the interest" and "to the advantage" of Caesar's Palace of which he was an agent and a consultant. This being the case, Atty. Y is not justified in claiming that he rendered legal services to Mr. X in view of the conflicting interests involved. Did the Atty. Y violate the conflict of interest rule?

The interest of the corporate client is paramount and should not be influenced by any interest of the individual corporate officials. A lawyer engaged as counsel for a corporation cannot represent members of the same corporation's Board of Directors in a derivative suit brought against them. To do so would be tantamount to representing conflicting interests which is prohibited by the Code of Professional Responsibility (Hornilla v. Atty. Salunat, A.C. No. 5804, July 1, 2003). Q: Six months ago, Atty. Z was consulted by A, about a four-door apartment in Manila left by her deceased parents. A complained that her two siblings, B and C, who were occupying two units of the apartment, were collecting the rentals from the other two units and refusing to give her any part thereof. Atty. Z advised A to first seek the intervention of her relatives and told her that if this failed, he would take legal action as A asked him to do. B asks Atty. Z to defend him in a suit brought by A against him (B) and C through another counsel. Should Atty. Z accept the case? A: No. When A consulted him about her complaint against B and C, a lawyer-client relationship was created between A and Atty. Z. Atty. Z cannot subsequently represent B against A in a matter he was consulted about. This constitutes conflict of interest. It does not matter if Atty. Z is not handling the case for A. Q: Should Atty. Z tell B that A consulted him earlier about the same case? Why? (2002 Bar Question)

A: No. Generally, an attorney is prohibited from representing parties with contending positions. UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

54

DUTIES AND RESPONSIBILITIES OF A LAWYER A: Yes. Rule 21.07 of the CPR provides that "a lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest.” In this case, he has to reveal to B that he had been consulted by A on the case that B if offering to retain his services, in order to avoid a possible conflict of interest.

3.

4. Rule 15.03, Canon 15 A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.

set aside; The attorney’s right to Fees may be defeated if found to be related to such conflict and such was objected to by the former client, or if there was a concealment and prejudice by reason of the attorney’s previous professional relationship with the opposite party; A lawyer can be held Administratively liable through disciplinary action and may be held Criminally liable for betrayal of trust.

Q: Huey Company and Dewey Corporation are both retainer clients of Atty. Anama. He is the corporate secretary of Huey Company. He represents Dewey Corporation in three pending litigation cases. Dewey Corporation wants to file a civil case against Huey Company and has requested Atty. Anama to handle the case. What are the options available to Atty. Anama? Explain your answer.

GR: An attorney cannot represent diverse interests. It is highly improper to represent both sides of an issue. The proscription against representation of conflicting interest finds application where the conflicting interest arise with respect to the same general matter and is applicable however slight such adverse interest may be. It applies although the attorney’s intention and motives were honest and he acted in good faith.

A: 1. To decline the case because to do so will constitute representing conflicting interests. It is unethical for a lawyer to represent a client in a case against another client in the same case. 2. To accept to file the case against Huey Company, after full disclosure to both retained clients and upon their express and written consent. The written consent may free him from the charge of representing conflicting interests, because written consent amounts to a release by the clients of the lawyer’s obligation not to represent conflicting interests.

XPN: Representation of conflicting interest may be allowed where the parties consent to the representation after full disclosure of facts (Nakpil v. Valdez, A.C. No. 2040, Mar. 4, 1998). NOTE: A lawyer may at a certain stage of the controversy and before it reaches the court represent conflicting interests with the express written consent of all parties concerned given after disclosure of the facts. The disclosure should include an explanation of the effects of the dual representation, such as the possible revelation or use of confidential information.

Q: If you were Atty. Anama, which option would you take? Explain.

An attorney owes loyalty to his client not only in the case in which he has represented him but also after relation of attorney and client has terminated.

A: If I were Atty. Anama, I will choose the first option and inhibit myself in the case as both entities are my clients. The conflict of interests between the contending clients may reach such a point that, notwithstanding their consent to the common representation, the lawyer may be suspected of disloyalty by one client. His continuing to act in a double capacity strikes deeply in the foundation of the attorney-client relationship.

Instances when lawyers cannot represent conflicting interest even if the consent of both clients were secured Where the conflict is: 1. Between the attorney’s interest and that of a client; or 2. Between a private client’s interests and that of the government or any of its instrumentalities.

Rule 15.04, Canon 15 A lawyer may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in setting the disputes.

Effects of representing adverse interests (DJ-FAC) 1. 2.

Disqualification as counsel of new client on petition of former client; Where such is unknown to, and becomes prejudicial to the interests of the new client, a Judgment against such may, on that ground, be

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics CANDID AND HONEST ADVICE TO CLIENTS

influence any public official, tribunal or legislative body.

Rule 15.05, Canon 15 A lawyer when advising his client, shall give a candid and honest opinion on the merits and probable results of the client’s case, neither overstating nor understating the prospects of the case.

This rule is known as INFLUENCE-PEDDLING. It is improper for a lawyer to show in any way that he has connections and can influence any tribunal or public official, judges, prosecutors, congressmen and others, especially so if the purpose is to enhance his legal standing and to entrench the confidence of the client that his case or cases are assured of victory.

Q: Consorcia Rollon went to the office of Atty. Camilo Naraval to seek his assistance in a case filed against her by Rosita Julaton for Collection of Sum of Money with Prayer for Attachment. After going over the documents she brought with her, Atty. Naraval agreed to be her lawyer and she was required to pay P8,000.00 for the filing and partial service fee. Atty. Naraval did not inform her that the said civil suit has been decided against her and which judgment has long become final and executory.

Q: In a case for inhibition filed against Judge Paas, it was found that her husband, Atty. Renerio Paas, was using his wife's office as his office address in his law practice. Judge Paas admitted that Atty. Paas did use her office as his return address for notices and orders in 2 criminal cases, lodged at the Pasay City RTC, but only to ensure and facilitate delivery of those notices, but after the cases were terminated, all notices were sent to his office address in Escolta. Was Atty. Paas’ act of using his wife’s office as his office address unprofessional and dishonorable?

Atty. Naraval was not able to act on the case. Because of this, Rollon wanted to withdraw the amount she has paid and to retrieve the documents pertaining to said case. Unfortunately, despite several follow-ups, Atty. Naraval always said that he cannot return the documents because they were in their house, and that he could not give her back the P8,000.00 because he has no money. Did Atty. Naraval fail to fulfill his undertakings?

A: Yes. By allowing Atty. Paas to use the address of her court in pleadings before other courts, Judge Paas had indeed allowed her husband to ride on her prestige for the purpose of advancing his private interest. Atty. Paas is guilty of simple misconduct because of using a fraudulent, misleading, and deceptive address that had no purpose other than to try to impress either the court in which his cases are lodged, or his client, that he has close ties to a member of the judiciary, in violation of the Code of Professional Responsibility.

A: Yes. Despite his full knowledge of the finality based on the documents furnished to him, Atty. Naraval withheld such vital information and did not properly appraise Rollon. He should have given her a candid and honest opinion on the merits and the status of the case but he withheld such vital information. He did not inform her about the finality of the adverse judgment. Instead, he demanded P8,000 as “filing and service fee” and thereby gave her hope that her case would be acted upon.

The need for relying on the merits of a lawyer's case, instead of banking on his relationship with a member of the bench which tends to influence or gives the appearance of influencing the court, cannot be overemphasized. It is unprofessional and dishonorable, to say the least, to misuse a public office to enhance a lawyer's prestige. Public confidence in law and lawyers may be eroded by such reprehensible and improper conduct (Paas v. Almarvez, A.M. No. P-03-1690, Apr. 4, 2003).

Rule 15.05 of the Code of Professional Responsibility requires that lawyers give their candid and best opinion to their clients on the merit or lack of merit of the case, neither overstating nor understating their evaluation thereof. Knowing whether a case would have some prospect of success is not only a function, but also an obligation on the part of lawyers. If they find that their client's cause is defenseless, then it is their bounden duty to advise the latter to acquiesce and submit, rather than to traverse the incontrovertible (Rollon v. Naraval, A.C. No. 6424, Mar. 4, 2005).

COMPLIANCE WITH LAWS Rule 15.07, Canon 15 A lawyer shall impress upon his client compliance with the laws and the principle of fairness. Q: Maria Cielo Suzuki entered into contracts of sale and real estate mortgage with several persons. The sale and mortgage transactions were facilitated by Atty. Erwin Tiamson, counsel of the sellers. Suzuki paid P80,000 as her share in the expenses for

Rule 15.06, Canon 15 A lawyer shall not state or imply that he is able to UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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DUTIES AND RESPONSIBILITIES OF A LAWYER registration. He retained in his possession the subject deeds of absolute sale and mortgage as well as the owner's copy of the title. However, he never registered the said documents and did not cause the transfer of the title over the subject property in the name of Suzuki. Atty. Tiamson said that he did not register the deed of sale to protect the interest of his client and even if the same has been registered, he cannot give him the owner's duplicate copy until purchase price for the subject property has been fully paid and the real estate mortgage cancelled. Is Atty. Tiamson justified in not registering the transaction?

CLIENT’S MONEYS AND PROPERTIES Canon 16 A lawyer shall hold in trust all moneys and properties of his client that may come into his possession

Money collected by the lawyer on a judgment favorable to his client constitute trust funds and should be immediately paid over to the client. While Section 37, Rule 138 of the Rules of Court grants the lawyer a lien upon the funds, documents and papers of his client, which have lawfully come into his possession, such that he may retain the same until his lawful fees and disbursements have been paid, and apply such funds to the satisfaction thereof, the lawyer still has the responsibility to promptly account to his client for such moneys received. Failure to do so constitutes professional misconduct.

A: No. Rule 15.07 obliges lawyers to impress upon their clients compliance with the laws and the principle of fairness. To permit lawyers to resort to unscrupulous practices for the protection of the supposed rights of their clients is to defeat one of the purposes of the State, the administration of justice. While lawyers owe their entire devotion to the interest of their clients and zeal in the defense of their client's right, they should not forget that they are, first and foremost, officers of the court, bound to exert every effort to assist in the speedy and efficient administration of justice. The client's interest is amply protected by the real estate mortgage executed by complainant. Thus, Atty. Tiamson failed to live up to this expectation (Suzuki v. Tiamson, A.C. No. 6542, Sept. 30, 2005).

The lawyer’s failure to turn over such funds, moneys, or properties to the client despite the latter’s demands give rise to the presumption that the lawyer had converted the money for his personal use and benefit. This failure also renders the lawyer vulnerable to judicial contempt under Section 25, Rule 138 of the Rules of Court (CPR Annotated, PhilJA). Q: Luis de Guzman as defendant in a civil case, obtained an adverse judgment. His counsel was Atty. Emmanuel Basa. He wants to challenge the decision through a petition for certiorari. It was agreed that Luis will pay P15,000 for said legal service. Atty. Basa collected a down payment of P5,000. However, no such petition was filed. He did not seasonably file with the CA the required appellant’s brief resulting in the dismissal of the appeal. Despite several extensions to file the appellant’s brief, Atty. Basa failed to do so. Instead, he filed two more motions for extension. When he filed the appellant’s brief, it was late, being beyond the last extension granted by the appellate court. Was Atty. Emmanuel Basa negligent in the performance of his professional duty to Luis de Guzman?

CONCURRENT PRACTICE OF ANOTHER PROFESSION Rule 15.08, Canon 15 A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity. This rule is intended to avoid confusion; it is for the benefit of both the client and the lawyer (Funa, 2009). NOTE: The lawyer should inform the client when he is acting as a lawyer and when he is not, because certain ethical considerations governing the client-lawyer relationship may be operative in one case and not in the other (Report of the IBP Committee, p.84).

A: Yes, he is guilty of gross misconduct. Where a client gives money to his lawyer for a specific purpose, such as to file an action or appeal an adverse judgment, the lawyer should, upon failure to take such step and spend the money for it, immediately return the money to his client. His unjustified withholding of Luis’ money is a gross violation of the general morality and professional ethics (De Guzman v. Atty. Emmanuel Basa, A.C. No. 5554, June 29, 2004).

A party’s engagement of his counsel in another capacity concurrent with the practice of law is not prohibited, so long as the roles being assumed by such counsel is made clear to the client (New Sampaguita Builder Construction, Inc. v. Philippine National Bank, G.R. No. 148753, July 30, 2004).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics Prohibition of a Lawyer acquiring client property

client. The relation between attorney and client is highly fiduciary in nature. Being such, it requires utmost good faith, loyalty, fidelity and disinterestedness on the part of the attorney. Its fiduciary nature is intended for the protection of the client (Espiritu vs. Ulep, A.C. No. 5808, May 4, 2005).

Pursuant to Canon 16 of the Code of Professional Responsibility. Furthermore, Article 1491 of the Civil Code states that: “The following persons cannot acquire or purchase, even at public or judicial auction, either in person or through the mediation of another: xxx (5) lawyers, with respect to the property and rights which may be the object of any litigation in which they take part by virtue of their profession.” (see NCC)

Fiduciary duty The principle that an attorney derives no undue advantage that may operate to the prejudice or cause an occasion for loss of a client. The relationship between the lawyer and client is one of mutual trust and confidence of the highest degree. Instances when civil liability arises

NOTE: This prohibition is entirely independent of fraud and such need not be alleged or proven. Art. 1491 (5) of the NCC applies only if the sale or assignment of the property takes place during the pendency of the litigation involving the client’s property (Ramos v. Ngaseo, A.C. No. 6210, Dec. 9, 2004).

1. Client is prejudiced by lawyer's negligence or misconduct; 2. Breach of fiduciary obligation; 3. Civil liability to third persons; 4. Libelous words in pleadings; 5. violation of communication privilege; 6. Liability for costs of suit (Treble Costs) – when lawyer is made liable for insisting on client's patently unmeritorious case or interposing appeal merely to delay litigation

FIDUCIARY RELATIONSHIP Rule 16.01, Canon 1 A lawyer shall account for all money or property collected or received for or from the client.

Remedy of the client

A lawyer must be scrupulously careful in handling money entrusted to him in his professional capacity, because of the high degree of fidelity and good faith expected on his part (Medina v. Bautista, A.C. No. 190, Sept. 26, 1964).

Recover property from lawyer, together with its fruits, subject to client’s returning to his lawyer the purchase price thereof and the legal interests thereon. Exemption from liability

Lawyer’s inexcusable act of withholding the property of client and imposing unwarranted fees in exchange for release of documents deserve the imposition of disciplinary action (Miranda v. Carpio, A.C. No. 6281, September 26, 2011).

A lawyer is exempted from liability for slander, libel or for words otherwise defamatory, published in the course of judicial proceedings, provided the statements are connected with, relevant, pertinent and material to the cause in hand or subject of inquiry.

Q: X sought assistance to the President of the IBP to enable him to talk to Atty. U who had allegedly been avoiding him for more than a year. Atty. U failed to turn–over to his client the amount given to him by X as settlement for a civil case. Is Atty. U guilty for violating Canon 16 of the Code of Professional Responsibility?

NOTE: Test of relevancy – The matter to which the privilege does not extend must be palpably wanting in relation to the subject of controversy, that no reasonable man can doubt its relevancy or propriety.

Criminal liability of lawyers

A: Yes. The Code of Professional Responsibility mandates every lawyer to hold in trust all money and properties of his client that may come into his possession. A lawyer’s failure to return upon demand the funds or property held by him on behalf of his client gives rise to the presumption that he has appropriated the same for his own use to the prejudice of, and in violation of the trust reposed in him by, his UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

A lawyer may be held criminally liable if he commits any of the following: 1. Causing prejudice to the client thru malicious breach of professional duty or thru inexcusable negligence or ignorance; 2. Revealing client’s secrets learned in lawyer’s professional capacity thru malicious breach of professional duty or inexcusable negligence or

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DUTIES AND RESPONSIBILITIES OF A LAWYER ignorance;

Accordingly, Esphar's representative delivered a total of P51,161 to Atty. Cabredo's office. However, the management of Esphar found out that he did not deliver said money to the court or to the bank. Did Atty. Caredo commit a breach of trust?

3. A lawyer who has undertaken the defense of a client or has received confidential information from said client in a case may be criminally liable for undertaking defense of opposing party in same cause without consent of first client; (RPC, Art. 209)

A: Yes. His act amounted to deceit in violation of his oath. The relationship between a lawyer and a client is highly fiduciary; it requires a high degree of fidelity and good faith. Hence, in dealing with trust property, a lawyer should be very scrupulous. Money or other trust property of the client coming into the possession of the lawyer should be reported by the latter and account any circumstances, and should not be commingled with his own or be used by him (Espiritu v. Cabredo, A.C. No. 5831, Jan. 13, 2003).

4. A lawyer who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with intent to cause such damage, shall use any false document may be held criminally liable therefor; (RPC, Art. 172) and 5. A lawyer who is appropriates his client’s funds may be held liable for estafa. NOTE: When a lawyer collects or receives money from his client for a particular purpose, he should promptly account to the client how the money was spent. His failure either to render an accounting or to return the money (if the intended purpose of the money does not materialize) constitutes a blatant disregard of Rule 16.01 of the CPR (Belleza v. Malaca, A.C. No. 7815, July 23, 2009).

DELIVERY OF FUNDS Rule 16.03, Canon 16 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. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court.

Costs of Suit GR: Losing client and not the lawyer is liable for costs of suit in favor of prevailing party, the lawyer not being a party-litigant. XPN: Where the lawyer insisted on client’s patently unmeritorious case or interposed an appeal to delay litigation or thwart prompt satisfaction of prevailing party’s just and valid claim, the court may adjudge lawyer to pay treble costs of suit.

Counsel cannot unilaterally retain client’s property for his attorney’s lien A counsel has no right to retain or appropriate unilaterally as lawyer’s lien any amount belonging to his client which may come into his possession (Cabigao v. Rodrigo, Aug. 9, 1932).

CO-MINGLING OF FUNDS Rule 16.02, Canon 16 A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him. Failure of the lawyer to account all the funds and property of his client which may come into his possession would amount to misappropriation which may subject him to disbarment on the ground of grave misconduct or a criminal prosecution for estafa under Art. 315, par. 1(b) of the RPC.

NOTE: While this rule provides that the lawyer has the right to retain the funds of his client as may be necessary to satisfy his lawful fees and disbursements known as attorney’s lien and his lien to the same extent on all judgments and executions he has secured for his client called charging lien, he is still duty bound to render an accounting of his client’s funds and property which may come into his possession in the course of his professional employment In the application of attorney’s lien, a lawyer shall give notice to his client otherwise, the same might be construed as misappropriation which may subject him to disciplinary action (Antiquiera, 2007).

Q: BPI filed two complaints for replevin and damages against Esphar Medical Center Inc. and its President Cesar Espiritu. Espiritu engaged the services of Atty. Juan Cabredo IV. While these cases were pending in court, the latter advised Esphar to remit money and update payments to the bank through the trial court.

Q: Fernandez engaged the services of Atty. Cabrera II to handle the cases of her associates in Baguio City. After taking hold of the records of the cases that Fernandez entrusted to him and after getting initially paid for the services he would render, Atty. Cabrera II suddenly disappeared and could no longer be

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Legal Ethics located in his given address or in the addresses that Fernandez gathered. Did Atty. Cabrera II violate the Code of Professional Responsibility when he accepted the records and money of the complainant and thereafter failed to render his services?

GR: A lawyer is not allowed to lend money to his client.

A: Yes. Acceptance of money from a client establishes an attorney-client relationship and gives rise to the duty of fidelity to the client's cause. The Canons of Professional Responsibility require that once an attorney agrees to handle a case, he should undertake the task with zeal, care, and utmost devotion.

NOTE: Prohibition from lending is intended to assure the lawyer’s independent professional judgment, for if the lawyer acquires a financial interest in the outcome of the case the free exercise of his judgment may be adversely affected

XPN: When in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client (CPR, Rule 16.04).

Q: Atty. Lozada was the retained counsel and legal adviser of Frias to which all documents and titles of properties of the latter were entrusted to. Atty. Lozada persuaded Frias to sell her house, the former acting as broker since she was in need of money. Dra. San Diego, the prospective buyer then handed 2 million in cash and 1 million in check and out of the 2 million, Atty. Lozada took 1 million as her commission without Frias’ consent. When Dra. San Diego backed out from the sale, Frias tried to recover from Atty. Lozada the title to the property and other documents but Atty. Lozada started avoiding her. Dra. San Diego filed a case against Frias to return the 3 million she paid plus interest. Frias claimed that her failure to return the money was because of Atty. Lozada’s refusal to give back the 1 million she took as commission. A case was filed by Frias against Atty. Lozada but despite the favourable decision, respondent refused to return the money.

Atty. Cabrera's action projects his appalling indifference to his client's cause and a brazen disregard of his duties as a lawyer. Not only did he fail to render service of any kind, he also absconded with the records of the cases with which he was entrusted. Then to top it all, he kept the money complainant paid to him. Such conduct is unbecoming of a member of the bar, for a lawyer's professional and personal conduct must at all times be kept beyond reproach and above suspicion. The duty of a lawyer is to uphold the integrity and dignity of the legal profession at all times. This can only be done by faithfully performing the lawyer's duties to society, to the bar, to the courts and to his clients (Fernandez v. Atty. Cabrera II, A.C. No. 5623, Dec. 11, 2003). BORROWING OR LENDING

Atty. Lozada claimed that since she did not have enough money, Frias requested her to sell or mortgage the property and offered her a loan, commission and attorney’s fees on the basis of the selling price. He denied that Frias previously demanded the return of 1 million until the civil case against her was instituted in which she expressed her willingness to pay the 900,000 plus agreed interest. Did Atty. Lozada commit a violation of the Code of Professional Responsibility in asking for a loan from her client?

Rule 16.04, Canon 16 A lawyer shall not borrow money from his client unless the client's interest are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client. A lawyer who takes advantage of his client’s financial plight to acquire the latter’s properties for his own benefit is of the confidence of the public in the fidelity, honesty and integrity of the legal profession (Hernandez, Jr. v. Go A.C. No. 1526, January 2005).

A: Yes. Her act of borrowing money from a client was a violation of Canon 16.04 of the Code of Professional Responsibility.

Prohibition from borrowing money from client

A lawyer’s act of asking a client for a loan, as what respondent did, is very unethical. It comes within those acts considered as abuse of client’s confidence. The canon presumes that the client is disadvantaged by the lawyer’s ability to use all the legal maneuverings to renege on her obligation (Frias v. Lozada, A.C. NO. 6656, Dec. 13, 2005).

GR: A lawyer is not allowed to borrow money from his client. XPN: The client’s interests are fully protected by the nature of the case or by independent advice. Prohibition of lending money to client

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

NOTE: The principle behind Rule 16.04 is to prevent the lawyer from taking advantage of his influence over the client

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DUTIES AND RESPONSIBILITIES OF A LAWYER or to avoid acquiring a financial interest in the outcome of the case.

of vigilance and attention of a good father of a family (Lapena, 2009) or ordinary pater familias (Pineda, 2009). He is not required to exercise extraordinary diligence (Edquibal v. Ferrer, Jr., A.C. No. 5687, Feb. 3, 2005).

FIDELITY TO CLIENT’S CAUSE Canon 17 A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him.

Q: In a criminal case for rape with homicide, the accused pleaded guilty. However, the three PAO lawyers assigned as counsel de officio did not advise their client of the consequences of pleading guilty; one PAO lawyer left the courtroom during trial and thus was not able to cross-examine the prosecution witnesses. The other postponed the presentation of evidence for the defense, and when he appeared, he said he would rely solely on the plea of guilty, in the belief that it would lower the penalty to reclusion perpetua. Should the three PAO lawyers be disciplined?

Q: Matias Lagramada residing with his uncle, Apolonio Lagramada, was invited by the latter to accompany him to the police station, supposedly to pick up a refrigerator they were to repair. Upon their arrival there, Matias was immediately taken in and locked behind bars. Two information were filed against him only 10 months after the first day of his incarceration. With the assistance of counsel, Matias pleaded not guilty when arraigned, without raising the invalidity of the arrest. Was the case properly handled?

A: Yes. All three (3) of them displayed manifest disinterest on the plight of their client. They lacked vigor and dedication to their work. Canon 18 of the Code of Professional Responsibility requires every lawyer to serve his client with utmost dedication, competence and diligence. He must not neglect a legal matter entrusted to him, and his negligence in this regard renders him administratively liable. Obviously, in the instant case, the defense lawyers did not protect, much less uphold, the fundamental rights of the accused. Instead, they haphazardly performed their function as counsel de officio to the detriment and prejudice of the accused Sevilleno, however guilty he might have been found to be after trial (People v. Sevilleno, G.R. No. 129058, Mar. 29, 1999).

A: No. Lawyers owe fidelity to the cause of their clients and must be mindful of the trust and confidence reposed in them. Matias’ counsel, in the spirit of safeguarding his client’s rights, should have taken the necessary steps to correct the situation. However, he allowed his client to enter a plea during the latter’s arraignment without raising the invalidity of arrest. Thus, the former effectively waived his client’s right to question its validity. Defense counsels are expected to spare no effort to save the accused from unrighteous incarcerations. Matias’ counsel should have not only perfunctorily represented his client during the pendency of the case, but should have kept in mind his duty to render effective legal assistance and true service by protecting the latter’s rights at all times (People v. Lagramada, G.R. Nos. 146357 & 148170, Aug. 29, 2002).

ADEQUATE PREPARATION Rule 18.02, Canon 18 A lawyer shall not handle any legal matter without adequate preparation. A lawyer should prepare his pleadings with great care and circumspection. He should refrain from using abrasive and offensive language, for it merely weakens rather than strengthens the force of legal reasoning and detracts from its persuasiveness. In preparing a complaint for damages, counsel for plaintiff should allege and state the specific amounts claimed not only in the body of the complaint but also in the prayer, so that the proper docket fees can be assessed and paid (Fernandez v. Atty. Novero, A.C. No. 5394, Dec. 2, 2002).

COMPETENCE AND DILIGENCE Canon 18 A lawyer shall serve his client with competence and diligence. Diligence is the attention and care required of a person in a given situation and is the opposite of negligence. It is axiomatic in the practice of law that the price of success is eternal diligence to the cause of the client (Edquibal v. Ferrer, A.C. No. 5687, Feb. 3, 2005).

The counsel must constantly keep in mind that his actions or omissions, even malfeasance and nonfeasance would be binding to his client. Verily, a

Degree of diligence required in the profession The legal profession demands of a lawyer that degree

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics lawyer owes to the client the exercise of utmost prudence and responsibility in representation (Fernandez v. Atty. Novero, A.C. No. 5394, Dec. 2, 2002).

accident, mistake or excusable negligence which will warrant a lifting of the order of default. As a general rule, a client is bound by the mistakes of his counsel; more so by the result of his own negligence

NEGLIGENCE

Q: Are the mistakes or negligence of a lawyer binding upon the client? (1998, 2000, 2002 Bar Questions)

Rule 18.03, Canon 18 A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. (1998, 2002 Bar Questions)

GR: Client is bound by attorney’s conduct, negligence and mistake in handling a case or in the management of litigation and in procedural technique, and he cannot complain that the result might have been different had his lawyer proceeded differently.

A lawyer is enjoined not to neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. It is the duty of the lawyer to serve his client with competence and diligence and he should exert his best efforts to protect within the bounds of the law, the interest of his client (Vda. De Enriquez v. San Jose, 516 SCRA 486, 2007).

XPNs: (LIPIG) 1. 2.

3.

Negligence of a lawyer

4.

What amounts to carelessness or negligence in a lawyer’s discharge of his duty to client is incapable of exact formulation. It will depend upon the circumstances of the case. Also, when he failed to comply with the clear provisions of the law and the rules.

5.

NOTE: If by reason of the lawyer’s negligence, actual loss has been caused to his client, the latter has a cause of action against him for damages. However, for the lawyer to be held liable, his failure to exercise reasonable care, skill and diligence must be proximate cause of the loss.

Instances of negligence by attorneys Failure to appeal to CA despite instructions by the client to do so constitutes inexcusable negligence on the part of the counsel (Abiero v. Juanino, A.C. No. 5302, Feb.18, 2005).

COLLABORATING COUNSEL Rule 18.01, Canon 18 A lawyer shall not undertake a legal service which he knows or should know that he is not qualified to render. However, he may render such service if, with the consent of his client, he can obtain as collaborating counsel a lawyer who is competent on the matter.

Even if a lawyer was "honestly and sincerely" protecting the interests of his client, the former still had no right to waive the appeal without the latter's knowledge and consent (Abay v. Atty. Montesino, A.C. No. 5718, Dec. 4, 2003). Q: As an incident in the main case, Velasquez appointed his counsel as attorney-in-fact to represent him at the pre-trial. Counsel failed to appear, hence Velasquez was declared in default. The order of default was received by counsel but no steps were taken to have it lifted or set aside. Decide.

The lawyer’s acceptance, whether for a fee or not, is an implied representation that he possesses the requisite degree of academic learning, skill and ability to handle the case. He is therefore directed not to take legal services, which he knows or should know he is not qualified or competent to render except if his client consents, the lawyer can take as collaborating counsel another lawyer who is competent on the matter.

A: It is binding on Velasquez who is himself guilty of negligence when, after executing the special power of attorney in favor of his lawyer, he left for abroad and apparently paid no further attention to his case until he received the decision. There is therefore no fraud, UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Lack of acquaintance with technical aspect of procedure; When adherence thereto results in outright deprivation of client’s liberty or property or where Interest of justice so requires; Where error by counsel is Purely technical which does not substantially affect client’s cause; Ignorance, incompetence, or inexperience of lawyer is so great and error so serious that client, who has a good cause, is prejudiced and denied a day in court; Gross negligence of lawyer.

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DUTIES AND RESPONSIBILITIES OF A LAWYER or omitted. A lawyer who repeatedly fails to answer the inquiries or communications of a client violates the rules of professional courtesy and neglects the client's interests (Villariasa-Reisenbeck v. Abarrientos, A.C. No. 6238, Nov. 4, 2004).

Collaborating Counsel One who is subsequently engaged to assist a lawyer already handling a particular case for a client (Pineda, 2009). NOTE: The handling lawyer cannot just take another counsel without the consent of the client. The new lawyer on the other hand cannot just enter his appearance as collaborating counsel without the conformity of the first counsel.

Doctrine of imputed knowledge The knowledge acquired by an attorney during the time that he is acting within the scope of his authority is imputed to the client. It is based on the assumption that an attorney, who has notice of matter affecting his client, has communicated the same to his principal in the course of professional dealings.

DUTY TO APPRISE CLIENT Rule 18.04, Canon 18 A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client’s request for information.

NOTE: The doctrine applies regardless of whether or not the lawyer actually communicated to the client what he learned in his professional capacity, the attorney and his client being one judicial person.

A lawyer should notify his client of the adverse decision while within the period to appeal to enable the client to decide whether to seek an appellate review. He should communicate with him concerning the withdrawal of appeal with all its adverse consequences. The client is entitled to the fullest disclosure of the mode or manner by which his interest is defended or why certain steps are taken or omitted.

Notice to counsel is notice to client, but not vice versa if the latter appeared by attorney GR: The law requires that service of any notice upon a party who has appeared by attorney shall be made upon his attorney. Notice sent to a party who has appeared by counsel is not notice in law, it being immaterial that the client actually received the notice or volunteered to get a copy thereof.

Q: Spouses Garcia engaged the services of Atty. Rolando Bala to appeal to the CA the adverse Decision of the Department of Agrarian Relations Adjudication Board (DARAB). Instead, he erroneously filed a Notice of Appeal. During one instance when the spouses had called on him to ask for a copy of the supposed appeal, Atty. Bala uttered unsavory words against them. Because of his error, the prescribed period for filing the petition lapsed, to the prejudice of his clients. Did Atty. Bala violate any ethical rules?

XPNs: 1. Strict application might foster dangerous collusion to the detriment of justice; 2. Service of notice upon party instead of upon his attorney is ordered by the court; 3. Notice of pre-trial is required to be served upon parties and their respective lawyers; 4. In appeal from the lower court to the RTC, upon docketing of appeal.

A: Yes. Rule 18.04 states that a "lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client's request for information." Accordingly, the spouses had the right to be updated on the developments and status of the case for which they had engaged the services of Atty. Bala. But he apparently denied them that right. Having become aware of the wrong remedy he had erroneously taken, he purposely evaded his clients, refused to update them on the appeal, and misled them as to his whereabouts. Moreover, he uttered invectives at them when they visited him for an update on the case (Spouses Garcia v. Bala, A.C. No. 5039, Nov. 25, 2005).

REPRESENTATION WITH ZEAL WITHIN LEGAL BOUNDS Canon 19 A lawyer shall represent his client with zeal within the bounds of the law When a lawyer accepts a case, whether for a fee or not, his acceptance is an implied representation that he: (CASE) 1. will exercise reasonable and ordinary Care and diligence in the pursuit or defense of the case; 2. will possess the requisite degree of Academic learning, skill and ability in the practice of his profession; 3. will take steps as will adequately Safeguard his client’s interests; and

NOTE: The lawyer is obliged to respond within a reasonable time to a client's request for information. A client is entitled to the fullest disclosure of the mode or manner by which that client's interest is defended or why certain steps are taken

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Legal Ethics 4.

will Exert his best judgment in the prosecution or defense of the litigation entrusted to him. (Islas v. Platon, G.R. No. L-23183, Dec. 29, 1924).

2.

competent or if he suffers from any disability, he has a duly appointed guardian or legal representative; The party or his guardian, as the case may be, is aware of the attorney’s representation; and He fails to promptly repudiate assumed authority.

Authority to appear in court is presumed

3.

GR: A lawyer is presumed to be properly authorized to represent any cause in which he appears.

Extent of lawyer’s authority in litigation A lawyer has authority to bind the client in all matters of ordinary judicial procedure. The cause of action, the claim or demand sued upon and the subject matter of the litigation are within the exclusive control of the client. A client may waive, surrender, dismiss, or compromise any of his rights involved in litigation in favor of the other party even without or against the consent of his attorney.

XPN: On motion of either party and on reasonable grounds, the presiding judge may require an attorney to prove the authority under which he appears (RRC, Rule 138, Sec. 21). Voluntary appearance of lawyer without authority An attorney may not appear for a person until he is in fact employed by, or retained for such person. An attorney willfully appearing in court for a person without being employed, unless by leave of court, may be punished for contempt as an officer of the court, who has misbehaved in his official transactions (Rule 138, Sec. 26).

USE OF FAIR AND HONEST MEANS Rule 19.01, Canon 9 A lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding (1997 Bar Question)

Effects of unauthorized appearance 1.

2. 3.

4.

The party represented is not bound by attorney’s appearance in the case neither by the judgment rendered therein; Court does not acquire jurisdiction over the person of the party represented; The adverse party who has been forced to litigate as a defendant by the unauthorized action on the part of the attorney for the plaintiff may, on that ground, move for the dismissal of the complaint; and If unauthorized appearance is willful, attorney may be cited for contempt as an officer of the court who has misbehaved in his official transactions, and he may be disciplined for professional misconduct.

Rule 19.01 of the CPR obligates a lawyer, in defending his client, to employ only such means as are consistent with truth and honor. He should not prosecute patently frivolous and meritless appeals or institute clearly groundless actions. The act of a lawyer in preventing the execution of the judgment against his clients shows that he actually committed what the above rule expressly prohibits (Que v. Revilla, A.C. No. 7054, Dec. 4, 2009). Under this rule, a lawyer should not file or threaten to file any unfounded or baseless criminal case or cases against the adversaries of his client designed to secure a leverage to compel the adversaries to yield or withdraw their own cases against the lawyer’s client

Ratification of unauthorized appearance 1. Express – Categorized assertion by client that he has authorized a lawyer or that he confirms his authorization to represent him in the case. 2. Implied – Where party with knowledge of fact that a lawyer has been representing him in a case, accepts benefits of representation or fails to promptly repudiate the assumed authority.

CLIENT’S FRAUD Rule 19.02, Canon 19 A lawyer who has received information that his client has, in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he shall terminate the relationship with such client in accordance with the Rules of Court (2001 Bar Question)

Requisites of implied ratification by silence 1.

The party represented by the attorney is of age or UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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DUTIES AND RESPONSIBILITIES OF A LAWYER The lawyer’s duty to his client does not mean freedom to set up false or fraudulent claims especially with respect to provisions of law or administrative rules and that while lawyers are bound to exert utmost legal skill in prosecuting their client’s cause or defending it, their duty, first and foremost, is to the administration of justice (CPR Annotated, PhilJA).

Duty of the lawyer in gathering information regarding the case The lawyer cannot entirely depend on the information his client gave or the time his client wished to give. The lawyer should take more control over handling the case. Where the client is based overseas, the lawyer should with more reason, have moved to secure all the legal means available to him either to continue representing his client effectively or to make the necessary manifestation in court, with the client’s conformity, that he was withdrawing as counsel of record (CPR Annotated, PhilJA).

NOTE: It is an unethical tactic for a lawyer to offer monetary rewards to anyone who could give him information against a party so that he could have leverage against all actions involving such party (CPR Annotated, PhilJA).

PROCEDURE IN HANDLING THE CASE

Appearance

Rule 19.03, Canon 19 A lawyer shall not allow his client to dictate the procedure in handling the case.

It is the coming into court as a party either as a plaintiff or as a defendant and asking relief therefrom.

Who has control over the case

Kinds of appearance

1. As to matters of procedure - it is the client who yields to the lawyer and not the lawyer yielding to the client (Lapena 2009).

1.

NOTE: The basis of this rule is that the lawyer is better trained and skilled in law.

2.

2. As to subject matter - the client is in control.

General appearance – When a party comes to court either as plaintiff or defendant and seeks general reliefs from the court for satisfaction of his claims or counterclaims respectively. Special appearance – When a defendant appears in court solely for the purpose of objecting to the jurisdiction of the court over his person.

NOTE: By virtue of Sec. 20, Rule 14 of the 1997 Rules of Civil Procedure, there is no more distinction between general appearance and special appearance, in the sense that a 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.

NOTE: Cause of action, claim or demand, and subject of litigation are within client’s control. Proceedings to enforce the remedy are within the exclusive control of the attorney.

Authority of counsel to compromise GR: The attorney has no authority to compromise his client’s case. This is so because the client, even if represented by counsel, retains exclusive control over the subject matter of the litigation. The client can, of course, authorize his lawyer to compromise his case, and the settlement made by the lawyer will bind his client.

Entry of appearance v. Appearance of counsel Entry of appearance is the written manifestation submitted by the counsel of record to inform the court that he will act as the counsel of a party made before the date of the hearing while appearance is the verbal manifestation of the counsel in order for the court to recognize his presence during the hearing of the case. (Sec.21, Rule 138, Rules of Court).

XPNs: 1. When the lawyer is confronted with an emergency where prompt and urgent action is necessary to protect the interest of his client and there is no opportunity for consultation with the latter. 2. Settlement of Monetary Obligation to client is full payment in cash.

ATTORNEY’S FEES (1990, 1991, 1992, 1994, 1995, 1997, 1998, 2005, 2006, 2007 Bar Questions) Canon 20 A lawyer shall charge only fair and reasonable fees

NOTE: Compromise is a contract whereby the parties, by making reciprocal concessions, avoid litigation or put an end to one already commenced (NCC, Art. 2028).

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics GR: Only lawyers are entitled to attorney’s fees. The same cannot be shared with a non-lawyer. It is unethical.

Kinds of payment 1. Fixed or absolute fee that which is payable regardless of the result of the case. a. A fixed fee payable per appearance b. A fixed fee computed upon the number of hours spent c. A fixed fee based on piece work d. Combination of any of the above

XPNs: A lawyer may divide a fee for legal services with persons not licensed to practice law: (CPR) 1. A lawyer undertakes to Complete the unfinished legal business of a deceased lawyer; 2. There is a Pre-existing agreement with a partner or associate that, upon the latter’s death, money shall be paid over a reasonable period of time to his estate or to persons specified in the agreement; 3. A lawyer or law firm includes non-lawyer employees in Retirement plan, even if the plan is based, in whole or in part, on a profit-sharing agreement. (CPR, Rule 9.02)

2. Contingent fee – a fee that is conditioned on the securing of a favorable judgment and recovery of money or property and the amount of which may be on a percentage basis. Requisites for the accrual of attorney’s fees 1. Existence of attorney-client relationship; and 2. Rendition by the lawyer of services to the client.

NOTE: Entitlement to lawyer’s fees is presumed (Funa, 2009). Unless otherwise expressly stipulated, rendition of professional services by a lawyer is for a fee or compensation and is not gratuitous (Research and Services Realty, Inc. v. CA, G.R. No. 124074, Jan. 27,1997).

NOTE: A pauper, while exempted from payment of legal fees is not exempted from payment of attorney’s fees (Cristobal v. Employees Compensation Commission, G.R. No. L-49280, Feb. 26, 1981).

Factors in determining the attorney’s fees (1994 Bar Question)

Rule 20.01, Canon 20 A lawyer shall be guided by the following factors in determining his fees: a. The time spent and the extent of the service rendered or required; b. The novelty and difficulty of the questions involved; c. The importance of the subject matter; d. The skill demanded; e. The probability of losing other employment as a result of acceptance of the proffered case; f. The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs; g. The amount involved in the controversy and the benefits resulting to the client from the service; h. The contingency or certainty of compensation; i. The character of the employment, whether occasional or established; and j. The professional standing of the lawyer.

In determining what is fair and reasonable, a lawyer shall be guided by the following factors: (STIPSNACCC) 1. Skill demanded; 2. Time spent and the extent of the services rendered or required; 3. Importance of the subject matter; 4. Probability of losing other employment as a result of acceptance of the proffered case; 5. Professional Standing of the lawyer; 6. Novelty and difficulty of the questions involved; 7. Amount involved in the controversy and the benefits resulting to the client from the services; 8. Customary Charges for similar services and the schedule of fees of the IBP chapter to which he belongs; 9. Contingency or certainty of compensation; and 10. Character of the employment, whether occasional or established. (Rule 20.01) NOTE: Imposition of interest in the payment of attorney’s fees is not justified (Funa, 2009).

NOTE: Generally, the amount of attorney’s fees due is that stipulated in the retainer agreement which is conclusive as to the amount of lawyer’s compensation (Funa, 2009) unless the stipulated amount in the written contract is found by the court to be unconscionable or unreasonable (Sec. 24, Rule 138, RRC). In the absence thereof, the amount of attorney’s fees is fixed on the basis of quantum meruit (Sesbreno v. Court of Appeals, G.R. No. 117438, June 8,1995; Funa, 2009). UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Contracts for attorney’s services in this jurisdiction stands upon an entirely different footing from other contract for the payment of compensation for any other services (Mambulao Lumber Co. v. Philippine National Bank, 130 Phil. 366). NOTE: No court shall be bound by the opinion of attorneys as expert witnesses as to the proper compensation, and may

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DUTIES AND RESPONSIBILITIES OF A LAWYER disregard such testimony and base its conclusion on its professional knowledge. A written contract for services shall control the amount to be paid therefor, unless found by the court to be unconscionable or unreasonable (RRC, Sec. 24, Rule 138).

Thereafter, Atty. Funk represented Concept Placement in the case filed against it for illegal dismissal. While the labor case was still pending, Concept Placement terminated the services of Atty. Funk. Nevertheless, Atty. Funk continued handling the case. Atty. Funk then advised Concept Placement of the POEA’s favorable decision and requested the payment of his attorney’s fees. Concept Placement refused. Is Atty. Funk entitled to attorney’s fees for assisting Concept Placement as counsel in the labor case even if the services of Atty. Funk were already terminated?

Factors to consider in determining the amount of attorney’s fees in the absence of any fee arrangement (TINS) 1. Time spent and the services rendered or required – A lawyer is justified in fixing higher fees when the case is so complicated and requires more time and effort in fixing it. 2. Importance of subject matter – The more important the subject matter or the bigger the value of the interest of the property in litigation, the higher is the attorney’s fees. 3. Novelty and difficulty of questions involved – When the questions in a case are novel and difficult, greater effort, deeper study and research are bound to burn the lawyer’s time and stamina considering that there are no local precedents to rely upon. 4. Skill demanded of a lawyer – The totality of the lawyer’s experience provides him skill and competence admired in lawyers.

A: Yes. The expiration of the retainer contract between the parties during the pendency of the labor case does not extinguish the respondent’s right for attorney’s fees. The Court found that while the petitioner and the respondent did not execute a written agreement on the fees in the labor case aside from the Retainer Agreement, the petitioner did categorically and unequivocally admit in its Compulsory Counterclaim that it has engaged the services of the respondent as its counsel for a fee of P60, 000, etc. (Concept Placement Resources Inc. v. Atty. Funk, G.R. No. 137680, Feb. 6, 2004). Kinds of Retainer Agreements on Attorney’s Fees

Different types of fee arrangements

1. General retainer or retaining fee – It is the fee paid to a lawyer to secure his future services as general counsel for any ordinary legal problem that may arise in the ordinary business of the client and referred to him for legal action. The client pays fixed retainer fees, which could be monthly or otherwise. The fees are paid whether or not there are cases referred to the lawyer; 2. Special retainer – It is a fee for a specific or particular case or service rendered by the lawyer for a client.

1. Retainer’s fee where the lawyer is paid for services for an agreed amount for the case. 2. The lawyer agrees to be paid per court appearance. 3. Contingent fee where the lawyer is paid for his services depending on the success of the case. This applies usually in civil suits for money or property where the lawyer’s fee is taken from the award granted by the court. 4. Attorney de officio. The attorney is appointed by the court to defend the indigent litigant in a criminal case. The client is not bound to pay the attorney for his services although he may be paid a nominal fee taken from a public fund appropriated for the purpose. 5. Legal aid. The attorney renders legal services for those who could not afford to engage the services of paid counsel. 6. Quantum meruit basis. If there is no specific contract between the lawyer and the client, the lawyer is paid on quantum meruit basis, that is, what the lawyer deserves for his services.

Q: Atty. Francisco’s retainer agreement with RXU said that his attorney's fees in its case against CRP “shall be 15% of the amounts collected.” Atty. Francisco asked the trial court to issue a temporary restraining order against CRP but this was denied, prompting him to file a petition for certiorari with the Court of Appeals to question the order of denial. At this point, RXU terminated Atty. Francisco’s services. When the parties later settled their dispute amicably, CRP paid RXU P100 million. Because of this, Atty. Francisco came around and claimed a 15% share in the amount. What should be his attorney’s fees? (2011 Bar Question)

Q: Concept Placement retained the services of Atty. Funk. Under their retainer contract, Atty. Funk is to render various legal services except litigation, quasijudicial and administrative proceedings and similar actions for which there will be separate billings.

A: A reasonable amount that the court shall fix upon proof of quantum meruit which means “as much as he

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics deserves”.

of his negligence; 7. When contract is contrary to law, morals or public policy; and 8. Serving adverse interest unless the lawyer proves that it was with the consent of both parties.

Instances when the measure of quantum meruit may be resorted to (2007 Bar Question) 1. There is no express contract for payment of attorney’s fees agreed upon between the lawyer and the client; 2. Although there is a formal contract for attorney’s fees, the stipulated fees are found unconscionable or unreasonable by the court; 3. The contract for attorney’s fees is void due to purely formal matters or defects of execution; 4. The counsel, for justifiable cause, was not able to finish the case to its conclusion; 5. Lawyer and client disregard the contract for attorney’s fees; and 6. The client dismissed his counsel before the termination of the case.

Rationale behind the rule that the court may reduce unconscionable attorney’s fees 1. Indubitably intertwined with the lawyer’s duty to charge only reasonable fees is the power of the court to reduce the amount of attorney’s fees if the same is excessive and unconscionable (Roxas v. De Zuzuarregui, Jr., G. R. No. 152072, Jan. 31, 2006).; 2. A lawyer is primarily an officer of the court hence fees should be subject to judicial control; 3. Sound public policy demands that courts disregard stipulations for attorney’s fees when they appear to be a source of speculative profit at the expense of the debtor or mortgagor (Borcena v. IAC, et. al., G.R. No. 70099, Jan. 7, 1987).

Q: A client refuses to pay Atty. A his contracted attorney's fees on the ground that counsel did not wish to intervene in the process of effecting a fair settlement of the case. Decide. (2001 Bar Question)

NOTE: A trial judge may not order the reduction of the attorney’s fees on the ground that the attorney is “below average standard of a lawyer.” The opinion of the judge as to the capacity of a lawyer is not a basis of the right to a lawyer’s fees (Fernandez v. Hon. Bello, No. L-14277, Apr. 30, 1960).

A: Rule 1.04 of the Code of Professional Responsibility provides that "a lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement". If a lawyer should refuse to intervene in a settlement proceeding, his entitlement to his attorney's fees may be affected. However, if he has already rendered some valuable services to the client, he must be paid his attorney's fees on the basis of quantum meruit, even if it is assumed that he is dismissed.

ACCEPTANCE FEES Q: Rose engaged the services of Atty. Jack as counsel for five cases. In the Retainer Agreement, Rose agreed to pay Atty. Jack the amount of 200,000 as Acceptance Fee for the five cases plus an additional 1,500 Appearance Fee per hearing and in the event that damages are recovered, she would pay Atty. Jack 10% as success fee. Rose issued two checks amounting to 51,716.54 in favor of Atty. Jack however despite receipt of said amounts he failed to file a case in one of the five cases referred to him; one case was dismissed due to untimely appeal; and another case was dismissed but he failed to inform Rose about it before she left for abroad. Dissatisfied with the outcome of her cases she demanded from Atty. Jack the return of all the records she had entrusted to him however he returned only two of the five cases. She filed a complaint charging him with violation of Canon 16 and 16.03 of the Code of Professional Responsibility. Was there a violation of the said Canon by the respondent?

Instances when counsel cannot recover the full amount despite written contract for attorneys’ fees (2006 Bar Question) 1. When the services called for were not performed as when the lawyer withdrew before the case was finished, he will be allowed only reasonable fees 2. When there is a justified dismissal of the attorney, the contract will be nullified and payment will be on the basis of quantum meruit only. A contrary stipulation will be invalid 3. When the stipulated attorney’s fees are unconscionable, when it is disproportionate as compared to the value of services rendered and is revolting to human conscience; 4. When the stipulated attorney’s fees are in excess of what is expressly provided by law; 5. When the lawyer is guilty of fraud or bad faith toward his client in the matter of his employment; 6. When the counsel’s services are worthless because UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

A: None. From the records of the case, it was found that four of the cases referred by Rose were filed but were dismissed or terminated for causes not attributable to Atty. Jack; and that there was no probable cause to maintain the suit. No fault or

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DUTIES AND RESPONSIBILITIES OF A LAWYER negligence can be attributed to the Atty. Jack. Rose still owes payment of acceptance fee because she only paid 51, 716.54.

supervision and close scrutiny of the court in order that clients may be protected from just charges. Its validity depends on the measure of reasonableness of the stipulated fees under the circumstances of the case. Stipulated attorney’s fees must not be unconscionable wherein the amount is by far so disproportionate compared to the value of the services rendered as to amount to fraud perpetrated to the client (Sesbreno vs. CA, G.R. No. 117438, June 8, 1995).

An acceptance fee is not a contingent fee, but is an absolute fee arrangement which entitles a lawyer to get paid for his efforts regardless of the outcome of the litigation. Dissatisfaction from the outcome of the cases would not render void the retainer agreement for Atty. Jack appears to have represented the interest of Rose (Yu v Bondal, A.C. No. 5534, Jan. 17, 2005).

Q: The stipulation between the lawyer and counsel is as follows, “the attorney’s fees of the Atty. X will be ½ of whatever the client might recover from his share in the property subject of the litigation.” Is the stipulation valid?

NOTE: The expiration of the retainer contract between the parties during the pendency of the labor case does not extinguish the respondent’s right to attorney’s fees (Uy v. Gonzales, A.C. No. 5280, Mar. 30, 2004).

CONTINGENCY FEE ARRANGEMENTS

A: Yes. The stipulation made is one of a contingent fee which is allowed by the CPE and the CPR. It does not violate the prohibition of acquisition of property subject of the litigation by the lawyer provided for in the Civil Code since the prohibition applies only to a sale or assignment to the lawyer by his client during the pendency of the litigation. The transfer actually takes effect after the finality of the judgment and not during the pendency of the case. As such it is valid stipulation between the lawyer and client.

Contingency fee contract One which stipulates that the lawyer will be paid for his legal services only if the suit or litigation ends favorably to the client (Taganas vs. NLRC, G.R. No. 118746, September 7, 1995). It is like a contract subject to a suspensive condition wherein the obligation to pay the counsel is based upon the outcome of the case.

Acceptance of an initial fee before or during the progress of the litigation detract from the contingent nature of the fees

Contingent fees are sanctioned by the CPE and by the CPR subject to certain limitations (Licudan vs. CA, G.R. No. 91958, January 24, 1991).

The acceptance of an initial fee before or during the progress of the litigation does not detract from the contingent nature of the fees, as long as the bulk thereof is made dependent upon the successful outcome of the action (Francisco vs. Matias, January 31, 1964, G.R. No. L-16349).

NOTE: If a lawyer employed on contingent basis dies or becomes disabled before the final adjudication or settlement of the case has been obtained, he or his estate will be allowed to recover the reasonable value of the services rendered. The recovery will be allowed only after the successful termination of the litigation in the client’s favor (Morton v. Forsee, Ann. Cas. 1914 D. 197; Lapena, 2009, Pineda, 2009).

Q: Chester asked Laarni to handle his claim to a sizeable parcel of land in Quezon City against a wellknown property developer on a contingent fee basis. Laarni asked for 15% of the land that may be recovered or 15% of whatever monetary settlement that may be received from the property developer as her only fee contingent upon securing a favorable final judgment or compromise settlement. Chester signed the contingent fee agreement. Assume the property developer settled the case after the case was decided by the Regional Trial Court in favor of Chester for P1 Billion. Chester refused to pay Laarni P150 Million on the ground that it is excessive. Is the refusal justified? Explain.

Rationale for contingent fee contracts Contracts of this nature (contingent fee contract) are permitted because they redound to the benefit of the poor client and the lawyer especially in cases where the client has meritorious cause of action, but no means with which to pay for the legal services unless he can, with the sanction of law, make a contract for a contingent fee to be paid out of the proceeds of the litigation (Francisco, 1949) Limitation of the stipulation regarding contingent fee contract

A: The refusal of Chester to pay is unjustified. A contingent fee is impliedly sanctioned by Rule 20.01(f)

It must be reasonable based on the circumstance of the case. Contingent fee contracts are under the

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics of the CPR. A much higher compensation is allowed as contingent fees is consideration of the risk that the lawyer will get nothing if the suit fails. In several cases, the Court has indicated that a contingent fee of 30% of the money or property that may be recovered is reasonable. Moreover, although the developer settled the case, it was after the case was decided by the RTC in favor of Chester, which shows that Atty. Laarni has already rendered service to the client.

A: No. Art. 111. Attorney's fees. (a) In cases of unlawful withholding of wages, the culpable party may be assessed attorney's fees equivalent to ten percent of the amount of the wages recovered. Contrary to Evangelina’s proposition, Article 111 of the Labor Code deals with the extraordinary concept of attorney’s fees. It regulates the amount recoverable as attorney's fees in the nature of damages sustained by and awarded to the prevailing party. It may not be used as the standard in fixing the amount payable to the lawyer by his client for the legal services he rendered.

Q: Assume there was no settlement and the case eventually reached the Supreme Court which promulgated a decision in favor of Chester. This time Chester refused to convey to Laarni 15% of the litigated land as stipulated on the ground that the agreement violates Article 1491 of the Civil Code, which prohibits lawyers from acquiring by purchase properties and rights, which are the object of litigation in which they take part by reason of their profession. Is the refusal justified? Explain. (2008 Bar Question)

In this regard, Section 24, Rule 138 of the Rules of Court should be observed in determining Atty. Go’s compensation. The said Rule provides: Sec. 24. Compensation of attorneys; agreement as to fees. An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services, with a view to the importance of the subject matter of the controversy, the extent of the services rendered, and the professional standing of the attorney. No court shall be bound by the opinion of attorneys as expert witnesses as to the proper compensation, but may disregard such testimony and base its conclusion on its own professional knowledge. A written contract for services shall control the amount to be paid therefor unless found by the court to be unconscionable or unreasonable.

A: Chester’s refusal is not justified. A contingent fee arrangement is not covered by Art.1491 of the Civil Code, because the transfer or assignment of the property in litigation takes effect only upon finality of a favorable judgment. (Director of Lands v. Ababa, No. L-26096, Feb. 27, 1979); (Macariola v. Asuncion, A.C. No. 133-J, May 31, 1982). Q: Evangelina Masmud’s husband, the late Alexander, filed a complaint against his employer for nonpayment of permanent disability benefits, medical expenses, sickness allowance, moral and exemplary damages, and attorney’s fees. He engaged the services of Atty. Go, as his counsel and agreed to pay attorney’s fees on a contingent basis, as follows: 20% of total monetary claims as settled or paid and an additional 10% in case of appeal. The Labor Arbiter granted the monetary claims of Alexander. Eventually, after several appeals, the decision being favorable to Evangelina (substituted her deceased husband), the decision became final and executory. Upon motion of Atty. Go, the surety company delivered to the NLRC Cashier, the check amounting to P3,454,079.20. Thereafter, Atty. Go moved for the release of the said amount to Evangelina. Out of the said amount, Evangelina paid Atty. Go the sum of P680,000.00. Dissatisfied, Atty. Go filed a motion to record and enforce the attorney’s lien alleging that Evangelina reneged on their contingent fee agreement. Evangelina manifested that Atty. Go’s claim for attorney’s fees of 40% of the total monetary award was null and void based on Article 111 of the Labor Code. Is her contention correct?

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The retainer contract between Atty. Go and Evangelina provides for a contingent fee. The contract shall control in the determination of the amount to be paid, unless found by the court to be unconscionable or unreasonable. The criteria found in the Code of Professional Responsibility are also to be considered in assessing the proper amount of compensation that a lawyer should receive (CPR, Canon 20, Rule 20.01; Evangelina Masmud v. NLRC, et. al., G.R. No. 183385, Feb. 13, 2009). Champertous contract Is one where the lawyer stipulates with his client in the prosecution of the case that he will bear all the expenses for the recovery of things or property being claimed by the client, and the latter agrees to pay the former a portion of the thing or property recovered as compensation. It is void for being against public policy (like gambling). NOTE: A champertous contract is considered void due to public policy, because it would make him acquire a stake in the outcome of the litigation which might lead him to place his own interest above that of the client (Bautista v. Gonzales, A.M. No. 1625, Feb. 12, 1990).

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DUTIES AND RESPONSIBILITIES OF A LAWYER Contingent v. Champertous contract CONTINGENT CONTRACT Payable in cash – dependent on the success of the litigation Lawyers do not undertake to pay all expenses of litigation Valid

3. Unsatisfied claim disbursements.

CHAMPERTOUS CONTRACT Payable in kind - a portion of the thing or property recovered as compensation Lawyers undertake to pay all expenses of litigation Void

for

attorney’s

fees

or

Attorney’s charging lien A charging lien is the right of a lawyer to the same extent upon all judgments for the payment of money, and executions issued in pursuance of such judgments which he has secured in a litigation of his client, from and after the time when he shall have caused a statement of his claim of such lien to be entered upon the records of the court rendering such judgment, or issuing such execution, and shall have caused written notice thereof to be delivered to his client and to the adverse party; and he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his fees and disbursements (RRC, Sec. 37, Rule 138).

Q: The contract of attorney's fees entered into by Atty. Quintos and his client, Susan, stipulates that if a judgment is rendered in favor of the latter, Atty. Quintos gets 60% of the property recovered as contingent fee. In turn, he will assume payment of all expenses of the litigation. May Atty. Quintos and Susan increase the amount of the contingent fee to 80%? (2006 Bar Question)

Requisites in order for an attorney to be able to exercise his charging lien

A: No. Atty. Quintos and Susan cannot agree to increase the amount of the contingent fee to 80% because the agreement is champertous. Even if there is no champertous provision present, the contingent fee of 80% of the PROPERTY recovered could still be considered as unconscionable, because it is so disproportionate as to indicate that an unjust advantage had been taken of the client, and is revolting to human conscience. Contracts for attorney's fees are always subject to control by the courts.

1. 2. 3. 4. 5.

Existence of attorney-client relationship; The attorney has rendered services; Favorable money judgment secured by the counsel for his client; The attorney has a claim for attorney’s fees or advances; and A statement of the claim has been duly recorded in the case with notice thereof served upon the client and the adverse party.

NOTE: A charging lien, to be enforceable as a security for the payment of attorney’s fees, requires as a condition sine qua non a judgment for money and execution in pursuance of such judgment secured in the main action by the attorney in favor of his client.

ATTORNEY’S LIENS Attorney’s retaining lien A retaining lien is the right of an attorney to retain the funds, documents and papers of his client who have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof.

Retaining lien v. Charging lien

As to Nature

NOTE: A lawyer is not entitled to unilaterally appropriate his client’s money for himself by the mere fact alone that the client owes him attorney’s fees (Rayos v. Hernandez, GR No. 169079, Feb. 12, 2007).

As to Basis

Requisites in order for an attorney to be able to exercise his retaining lien (ALU) 1. Attorney-client relationship; 2. Lawful possession by the lawyer of the client’s funds, documents and papers in his professional capacity; and

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RETAINING LIEN Passive lien. It cannot be actively enforced. It is a general lien. Lawful possession of papers, documents, property belonging to the client.

CHARGING LIEN Active lien. It can be enforced by execution. It is a special lien. Securing of a favorable money judgment for client.

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics As to Coverage

As to Effect

Covers papers, documents, and properties in the lawful possession of the attorney by reason of his professional employment. As soon as the attorney gets possession of papers, documents, or property.

As to Applicability

May be exercised before judgment or execution or regardless thereof.

As to Extinguishment

When possession lawfully ends as when lawyer voluntarily parts with funds, documents, and papers of client or offers them as evidence.

executions issued in pursuance of such judgments, which he has secured in a litigation of his client, from and after the time when the records of the court rendering such judgment or issuing such execution.

Covers all judgments for the payment of money and execution issued in pursuance of such judgment.

FEES AND CONTROVERSIES WITH CLIENTS Rule 20.02, Canon 20 A lawyer shall, in cases of referral, with the consent of the client, be entitled to a division of fees in proportion to the work performed and responsibility assumed.

As soon as the claim for attorney’s fees had been entered into the records of the case. Generally, exercised only when the attorney had already secured a favorable judgment for his client. When client loses action as lien may only be enforced against judgment awarded in favor of client, proceeds thereof/execut ed thereon.

This is not in the nature of a broker’s commission. Lawyer-referral system Under this system, if another counsel is referred to the client, and the latter agrees to take him as collaborating counsel, and there is no express agreement on the payment of attorney’s fees, the said counsel will receive attorney’s fees in proportion to the work performed and responsibility assumed. The lawyers and the client may agree upon the proportion but in case of disagreement, the court may fix the proportional division of fees (Lapena, 2009). Rule 20.03 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. (1997, 2003 Bar Questions)

Q: Upon being replaced by Justice C, Atty. B, the former counsel of the parents of the victims of the OZONE Disco tragedy, was directed to forward all the documents in his possession to Justice C. Atty. B refused, demanding full compensation pursuant to their written contract. Sensing that a favorable judgment was forthcoming, Atty. B filed a motion in court relative to his attorney’s fees, furnishing his former clients with copies thereof. Is Atty. B legally and ethically correct in refusing to turn over the documents and in filing the motion? Explain. (1996 Bar Question) A: Yes. He is entitled to a retaining lien which gives him the right to retain the funds, documents and papers of his client which have lawfully come to his possession until his lawful fees and disbursement have been paid (RRC, Sec. 37, Rule 138; CPR, Rule 16.03). He is also legally and ethically correct in filing a motion in court relative to his fees. He is entitled to a charging lien upon all judgments for the paying of money, and UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

It is intended to secure the fidelity of the lawyer to his client’s cause and to prevent a situation in which the receipt by him of a rebate or commission from another with the client’s business may interfere with the full discharge of his duty to his client. (Report of the IBP Committee) GR: Fees shall be received from the client only. XPN: A lawyer may receive compensation from a person other than his client when the latter has full knowledge and approval thereof (Sec. 20 (e), Rule 138). Rule 20.04, Canon 20 A lawyer shall avoid controversies with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice or fraud. (1998 Bar Question) GR: A lawyer should avoid the filing of any case against

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DUTIES AND RESPONSIBILITIES OF A LAWYER a client for the enforcement of attorney’s fees.

proceeds to the judgment creditor and the lawyer has not taken any legal step to have his fees paid directly to him from the judgment proceeds. 7. Failure to exercise Charging Lien

NOTE: The legal profession is not a money-making trade but a form of public service. Lawyers should avoid giving the impression that they are mercenary (Perez v. Scottish Union and National Insurance Co., C.A. No. 8977, Mar. 22, 1946). It might even turn out to be unproductive for him for potential clients are likely to avoid a lawyer with a reputation of suing his clients.

Effects of the nullity of contract on the right to attorney’s fees If the nullification is due to: 1. The illegality of its object - the lawyer is precluded from recovering; and

XPNs: 1. To prevent imposition 2. To prevent injustice 3. To prevent fraud (CPR, Rule 20.04)

2. Formal defect or because the court has found the amount to be unconscionable - the lawyer may recover for any services rendered based on quantum meruit.

NOTE: A client may enter into a compromise agreement without the intervention of the lawyer, but the terms of the agreement should not deprive the counsel of his compensation for the professional services he had rendered. If so, the compromise shall be subjected to said fees. If the client and the adverse party who assented to the compromise are found to have intentionally deprived the lawyer of his fees, the terms of the compromise, insofar as they prejudice the lawyer, will be set aside, making both parties accountable to pay the lawyer’s fees. But in all cases, it is the client who is bound to pay his lawyer for his legal representation (Atty. Gubat v. NPC, G.R. No. 167415, Feb. 26, 2010),

Kinds of lawyer according to services rendered and the compensation they are entitled to 1. Counsel de parte – He is entitled to the reasonable attorney’s fees agreed upon, or in the absence thereof, on quantum meruit basis. 2. Counsel de officio – The counsel may not demand from the accused attorney’s fees even if he wins the case. He may, however, collect from the government funds, if available based on the amount fixed by the court.

Ways on how lawyers claim attorney's fees

3. Amicus Curiae – not entitled to attorney’s fees.

1. In the same case – It may be asserted either in the very action in which the services of a lawyer had been rendered or in a separate action. 2. In a separate civil action – A petition for attorney's fees may be filed before the judgment in favor of the client is satisfied or the proceeds thereof delivered to the client.

CONCEPTS OF ATTORNEY’S FEES Two concepts of attorney’s fees 1. Ordinary attorney's fee – The reasonable compensation paid to a lawyer by his client for the legal services he has rendered to the latter (Pineda, 2009).

The determination as to the propriety of the fees or as to the amount thereof will have to be held in abeyance until the main case from which the lawyer's claim for attorney's fees may arise has become final. Otherwise, the determination of the courts will be premature.

NOTE: The basis for this compensation is the fact of his employment by and his agreement with the client.

2. Extraordinary attorney's fee – An indemnity for damages ordered by the court to be paid by the losing party in litigation.

Instances when an independent civil action to recover attorney’s fees is necessary 1. Main action is dismissed or nothing is awarded; 2. Court has decided that it has no jurisdiction over the action or has already lost it; 3. Person liable for attorney’s fees is not a party to the main action; 4. Court reserved to the lawyer the right to file a separate civil suit for recovery of attorney’s fees; 5. Services for which the lawyer seeks payment are not connected with the subject litigation; and 6. Judgment debtor has fully paid all of the judgment

NOTE: The basis for this is any of the cases provided for by law where such award can be made, such as those authorized in Article 2208 of the Civil Code, and is payable to the client, NOT to the lawyer unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof.

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics ORDINARY CONCEPT OF ATTORNEY’S FEES

at the back of the TCTs. DOY, for its part, filed several petitions to set aside the RTC Orders involving the award of attorney’s fees. Eventually, CA rendered a decision, fixing Atty. Gabriel, Jr.’s fees at P200,000.00 and affirming the subsequent order of the RTC not to annotate such award on the TCTs. Should the court rely on the importance of the subject matter in controversy and the professional standing of counsel in awarding attorney’s fee?

Q: Aurora Pineda filed an action for declaration of nullity of marriage against Vinson Pineda, who was represented by Attys. Clodualdo de Jesus, Carlos Ambrosio and Emmanuel Mariano. The parties' proposal for settlement regarding Vinson's visitation rights over their minor child and the separation of their properties was approved by the court. The marriage was subsequently declared null and void. Throughout the proceedings counsels and their relatives and friends, availed of free products and treatments from Vinson’s dermatology clinic. This notwithstanding, they billed him additional legal fees amounting to P16.5 million which he, however, refused to pay. Instead, he issued them several checks totaling P1.12 million as full payment for settlement. Still not satisfied, the three lawyers filed in the same court a motion for payment of lawyers' fees for P50 million, which is equivalent to 10% of the value of the properties awarded to Pineda in the case. Are their claim justified?

A: No. DOY’s contention that the appellate court should also have taken into account the importance of the subject matter in controversy and the professional standing of counsel in determining the latter’s fees is untenable. Although Rule 138 of the Rules of Court and Rule 20.01, Canon 20 of the Code of Professional Responsibility lists several other factors in setting such fees, these are mere guides in ascertaining the real value of the lawyer’s service. Courts are not bound to consider all these factors in fixing attorney’s fees. While a lawyer should charge only fair and reasonable fees, no hard and fast rule maybe set in the determination of what a reasonable fee is, or what is not. That must be established from the facts in each case (DOY Mercantile, Inc. v. AMA Computer College, G.R. No. 155311, Mar. 31, 2004).

A: No. Clearly, what they were demanding was additional payment for legal services rendered in the same case. Demanding P50 million on top of the generous sums and perks already given to them was an act of unconscionable greed. They could not charge Pineda a fee based on percentage, absent an express agreement to that effect. The payments to them in cash, checks, free products and services from Pineda’s business more than sufficed for the work they did. The full payment for settlement should have discharged Vinson's obligation to them.

EXTRAORDINARY CONCEPT OF ATTORNEY’S FEES Rules on extraordinary concept of attorney’s fees 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.

As lawyers, they should be reminded that they are members of an honorable profession, the primary vision of which is justice. It is the lawyer’s despicable behavior in the case at bar which gives lawyering a bad name in the minds of some people. The vernacular has a word for it: nagsasamantala. The practice of law is a decent profession and not a money-making trade. Compensation should be but a mere incident (Pineda v. de Jesus, G.R. No. 155224, Aug. 23, 2006).

XPNs: Attorney’s fees in the concept of damages may be awarded in any of the following circumstances: 1. When there is an agreement; 2. When exemplary damages are awarded; 3. When defendant’s action or omission compelled plaintiff to litigate; 4. In criminal cases of malicious prosecution a. Plaintiff was acquitted; and b. The person who charged him knowingly made the false statement of facts or that the filing was prompted by sinister design to vex him; 5. When the action is clearly unfounded; 6. When defendant acted in gross and evident bad faith; 7. In actions for support; 8. In cases of recovery of wages; 9. In actions for indemnity under workmen’s compensation and employee’s liability laws; 10. In a separate civil action arising from a crime; 11. When at least double costs are awarded

Q: DOY Mercantile Inc. refused to satisfy Atty. Gabriel, Jr.’s attorney’s fees, prompting the latter to file with the RTC a Motion to Allow Commensurate Fees and to Annotate Attorney’s Lien on certain TCTs. The RTC fixed Atty. Gabriel, Jr.’s fees and ordered that a lien be annotated on the TCTs. A Writ of Execution was later issued by the trial court in Atty. Gabriel, Jr.’s favor. Upon Atty. Gabriel Jr.’s motion for reconsideration, the RTC increased his fees. It then issued another Writ of Execution to enforce the new award but denied the Motion to Annotate the Award UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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DUTIES AND RESPONSIBILITIES OF A LAWYER (costs of suit does not include attorney’s fees); 12. When the court deems it just and equitable; and 13. When a special law so authorizes (NCC, Art. 2208).

XPNs: 1. When authorized by his client after acquainting him of the consequences of the disclosure; NOTE: The only instance where the waiver of the client alone is insufficient is when the person to be examined with reference to any privileged communication is the attorney’s secretary, stenographer or clerk, in respect to which, the consent of the attorney is likewise necessary.

Rationale behind the rule that the Court shall state the reason for attorney’s fees in in its decision

2. 3.

The award of attorney’s fees being an exception rather than the general rule, it is necessary for the court to make findings of facts and law that would bring the case within the exception and justify the grant of such award (Agustin vs. CA, G.R. No. 84751, June 6, 1990).

When required by law; When necessary to collect his fees or to defend himself, his employees or associates by judicial action.

NOTE: Payment of retainer fee is not essential before an attorney can be required to safeguard a prospective client’s secret acquired by the attorney during the course of the consultation with the prospective client, even if the attorney did not accept the employment.

NOTE: Attorney’s fees must be specifically prayed for and proven and justified in the decision itself (Trans-Asia Shipping Lines, Inc. vs. CA, G.R. No. 118126, Mar. 4, 1996).

PRESERVATION OF CLIENT’S CONFIDENCES

Instances when a lawyer may testify as a witness in a case which he is handling for a client

Canon 21 A lawyer shall preserve the confidence and secrets of his client even after the attorney-client relation is terminated.

1. On formal matters, such as the mailing, authentication or custody of an instrument and the like; 2. Acting as an expert on his free; 3. Acting as an arbitrator; 4. Depositions; and 5. On substantial matters in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel.

The protection given to the client is perpetual and does not cease with the termination of the litigation nor is affected by the party ceasing to employ the attorney and employ another or any other change of relation between them. It even survives the death of the client. PROHIBITED DISCLOSURES AND USE

Rule 21.02, Canon 21 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 21.01, Canon 21 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 21.05, Canon 21 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 client.

GR: A lawyer shall not reveal the confidences and secrets of his client. NOTE: An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity (RRC, Sec. 24(b), Rule 130).

Rule 21.06, Canon 21 A lawyer shall avoid indiscreet conversation about a client’s affairs even with members of his family.

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics Rule 21.07, Canon 21 A lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest.

Rule 21.03, Canon 21 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 other similar purposes.

Q: Bun Siong Yao is a majority stockholder of Solar Farms & Livelihood Corporation and Solar Textile Finishing Corporation. Atty. Leonardo Aurelio is also a stockholder and the retained counsel of both the corporation and Bun Siong Yao. The latter purchased several parcels of land using his personal funds but were registered in the name of the corporations upon the advice of Atty. Aurelio. After a disagreement between Atty. Aurelio and Bun Siong Yao’s wife, the former demanded the return of his investment in the corporations but when Yao refused to pay, he filed 8 charges for estafa and falsification of commercial documents against Yao and his wife and the other officers of the corporation. Yao alleged that the series of suits is a form of harassment and constitutes an abuse of the confidential information which Atty. Aurelio obtained by virtue of his employment as counsel. Atty. Aurelio however said that he only handled isolated labor cases for the said corporations. Did Atty. Aurelio abuse the confidential information he obtained by virtue of his employment as counsel?

Q: Certain government officers, armed with search warrant duly issued, seized among other things, a filing cabinet belonging to Atty. X. In seeking the return of the cabinet, Atty. X claimed that the cabinet contained documents and articles belonging to his clients but the government refused to return the cabinet. Atty. X petitioned the court which issued the warrant, praying that the agents be prohibited from opening the cabinet. Should Atty. X’s petition be given due course? A: Yes. The lower court cannot order the opening of said cabinet. To do so is in violation of his rights as an attorney. It would be tantamount to compelling him to disclose his client’s secrets (Lapena, 2009). NOTE: Confidential information obtains even against government agencies and instrumentalities (Funa, 2009).

DISCLOSURE, WHEN ALLOWED

A: Yes. The long-established rule is that an attorney is not permitted to disclose communications made to him in his professional character by a client, unless the latter consents. Atty. Aurelio took advantage of his being a lawyer in order to get back at Yao. In doing so, he has inevitably utilized information he has obtained from his dealings with Yao and Yao's companies for his own end.

Rule 21.04, Canon 21 A lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client. Professional employment of a law firm is equivalent to retainer of members thereof. In a law firm, partners or associates usually consult one another involving their cases and some work as a team. Consequently, it cannot be avoided that some information about the case received from the client may be disclosed to the partners or associates.

Lawyers cannot be allowed to exploit their profession for the purpose of exacting vengeance or as a tool for instigating hostility against any person most especially against a client or former client (Bun Siong Yao v. Aurelio, A.C. No. 7023, Mar. 30, 2006).

Q: In need of legal services, Niko secured an appointment to meet with W Atty. Henry of Henry & Meyer Law Offices. During the meeting, Niko divulged highly private information to Atty. Henry, believing that the lawyer would keep the confidentiality of the information. Subsequently, Niko was shocked when he learned that Atty. Henry had shared the confidential information with his law partner, Atty. Meyer, and their common friend, private practitioner Atty. Canonigo. When confronted, Atty. Henry replied that Niko never signed any confidentiality agreement, and that he shared the information with the two lawyers to secure affirmance of his legal opinion on

Acts punished under Art. 209 of the Revised Penal Code (betrayal of trust by attorney) 1. By causing damage to his client, either 1) by any malicious breach of professional duty, 2) by inexcusable negligence or ignorance 2. By revealing any of the secrets of his clients learned by him in his professional capacity. 3. By undertaking the defense of the opposing party in the same case, without the consent of his first client, after having undertaken the defense of said first client or after having received confidential information from said client. UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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DUTIES AND RESPONSIBILITIES OF A LAWYER Niko’s problem. Did Atty. Henry violate any rule of ethics? Explain fully. (2008 Bar Question)

Q: Atty. X was charged of violating Code of Responsibility for representing conflicting interests by accepting the responsibility of representing Mr. A in the cases similar to those in which he had undertaken to represent Mr. D and his group, notwithstanding that Mr. A was the very same person whom Mr. D and his group had accused with Atty. X’s legal assistance. He had drafted the demand letters and the complaint-affidavit that became the bases for the filing of the estafa charges against Mr. A. Atty. X contends that his lawyer-client relationship with Mr. D ended when he and his group entered into the compromise settlement. Is his contention correct?

A: Atty. Henry violated Canon No. 21 of the CPR by sharing information obtained from his client Niko with Atty. Canonigo. Canon No. 20 provides that “a lawyer shall preserve the confidences or secrets of his client even after the attorney-client relationship is terminated.” The fact that Atty. Canonigo is a friend from whom he intended to secure legal opinion on Niko’s problem, does not justify such disclosure. He cannot obtain a collaborating counsel without the consent of the client (CPR, Rule 18.01). On the other hand, Atty. Henry did not violate Canon 21 in sharing information with his partner Atty. Meyer. Rule 21.04 of the CPR specifically provides that “a lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client.” Atty. Henry was not prohibited from disclosing the affairs of Niko with the members of his law firm. The employment of a member of a firm is generally considered as employment of the firm itself (Hilado v. David, G.R. No. L-961, Sept. 21, 1949).

A: No. Atty. X’s contention is not correct. The lawyerclient relationship did not terminate as of the date of compromise agreement, for the fact remained that he still needed to oversee the implementation of the settlement as well as to proceed with the criminal cases until they were dismissed or otherwise concluded by the trial court. It is also relevant to indicate that the execution of a compromise settlement in the criminal cases did not ipso facto cause the termination of the cases not only because the approval of the compromise by the trial court was still required, but also because the compromise would have applied only to the civil aspect, and excluded the criminal aspect pursuant to Article 2034 of the Civil Code (Samson vs. Era, A.C. No. 6664, July 16, 2013).

Privileged communication rule with regard to the identity of his client GR: A lawyer may not invoke privileged communication to refuse revealing a client’s identity. XPNs: 1. When there is a strong possibility that revealing the client’s name would implicate the client in the very activity for which he sought the lawyer’s advice; 2. When disclosure would open the client to civil liability; 3. When government’s lawyers have no case against an attorney’s client and revealing the client’s name would furnish the only link that would come from the chain of testimony necessary to convict him.

WITHDRAWAL OF SERVICES Canon 22 A lawyer shall withdraw his services only for good cause and upon notice appropriate in the cirtumstances. Right to withdraw GR: A lawyer lacks the unqualified right to withdraw once he has taken a case. By his acceptance, he has impliedly stipulated that he will prosecute the case to conclusion. This is especially true when such withdrawal will work injustice to a client or frustrate the ends of justice.

Reasons why a lawyer may not invoke privileged communication to refuse revealing a client’s identity 1. Due process considerations require that the opposing party should know the adversary; 2. The privilege pertain to the subject matter of the relationship; 3. The privilege begins to exist only after attorneyclient relationship has been established hence it does not attach until there is a client; and 4. The court has a right to know that the client whose privileged information is sought to be protected is flesh and blood.

XPNs: The right of a lawyer to retire from the case before its final adjudication, which arises only from: 1. The client’s written consent; or 2. By permission of the court after due notice and hearing. Instances when a lawyer may withdraw his services without the consent of his client (FIC MOVIE)

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics 1. When the client deliberately Fails to pay the fees for the services or fails to comply with the retainer agreement; 2. When the client pursues an Illegal or immoral course of conduct in connection with the matter he is handling; 3. When the lawyer finds out that he might be appearing for a Conflicting interest; 4. When the Mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively; 5. Other similar cases; 6. When the client insists that the lawyer pursue conduct in Violation of these canons and rules; 7. When his Inability to work with co-counsel will not promote the best interest of the client; and 8. When the lawyer is Elected or appointed to a public office (CPR, Rule 22.01).

b.

c. d.

e.

NOTE: A lawyer should question his discharge otherwise he will only be allowed to recover on quantum meruit basis.

Limitations on client’s right to discharge the services of his lawyer 1.

Procedure to follow when withdrawal is without client’s consent

2. 3.

1. File a petition for withdrawal in court. 2. Serve a copy of this petition upon his client and the adverse party at least 3 days before the date set for hearing.

1. 2. 3.

If the application is filed under circumstances that do not afford a substitute counsel sufficient time to prepare for trial or that work prejudice to the client’s cause, the court may deny his application and require him to conduct the trial.

Standing alone, heavy workload is not sufficient reason for the withdrawal of a counsel. When a lawyer accepts to handle a case, whether for a fee or gratis et amore, he undertakes to give his utmost attention, skill and competence to it regardless of its significance. Failure to fulfill his duties will subject him to grave administrative liability as a member of the Bar (Ceniza v. Atty. Rubia, A.C. No. 6166, October 2, 2009).

Q: Can a client discharge the services of his lawyer without a cause? (1994, 1997, 1998 Bar Question) A: Yes. A client has the right to discharge his attorney at any time with or without a cause or even against his consent.

Rule 22.01, Canon 22 A lawyer may withdraw his services in any of the following case: a. When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling; b. When the client insists that the lawyer pursue conduct violative of these canons and rules; c. When the inability to work with co- counsel will not promote the best interest of the client;

With just cause – lawyer is not necessarily deprived of his right to be paid for his services. He may only be deprived of such right if the cause for his dismissal constitutes in itself a sufficient legal obstacle to recovery. Without just cause a. No express written agreement as to fees reasonable value of his services up to the date UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Written application Written consent of the client Written consent of the attorney to be substituted, or in the absence thereof, proof of service of notice of said motion to the attorney to be substituted in the manner prescribed by the rules.

Heavy workload as excuse for withdrawal as counsel

A lawyer should not presume that the court will grant his petition for withdrawal. Until his withdrawal shall have been proved, the lawyer remains counsel of record who is expected by his client as well as by the court to do what the interests of his client require.

2.

When made with justifiable cause, it shall negate the attorney’s right to full payment of compensation. The attorney may, in the discretion of the court, intervene in the case to protect his right to fees. A client may not be permitted to abuse his right to discharge his counsel as an excuse to secure repeated extensions of time to file a pleading or to indefinitely avoid a trial.

Conditions for substitution of counsel

NOTE: He should present his petition well in advance of the trial of the action to enable the client to secure the services of another lawyer.

1.

of his dismissal (quantum meruit). There is written agreement and the fee stipulated is absolute and reasonable – full payment of compensation. The fee stipulated is contingent. If dismissed before the conclusion of the action - reasonable value of his services (quantum meruit) If contingency occurs or client prevents its occurrence – full amount.

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DUTIES AND RESPONSIBILITIES OF A LAWYER Q: Was the motion for relief as counsel made by the defense lawyer in full accord with the procedural requirements for a lawyer’s withdr awal from a court case? Explain briefly. (2004 Bar Question)

d. When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively; e. When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement f. When the lawyer is elected or appointed to public office; and g. Other similar cases.

A: No, his actuation is not in accord with the procedural requirements for the lawyer’s withdrawal from a court case. Whether or not a lawyer has a valid cause to withdraw from a case, he cannot just do so and leave the client in the cold unprotected. He must serve a copy of his petition upon the client and the adverse party. He should, moreover, present his petition well in advance of the trial of the action to enable the client to secure the services of another lawyer.

NOTE: In cases a-e (above), the lawyer must file a written motion with an express consent of his client and the court shall determine whether he ought to be allowed to retire. He may also retire at any time from an action or special proceeding without the consent of his client, should the court, on notice to the client and attorney, and on hearing, determine that he ought to be allowed to retire (RRC, Sec. 26, Rule 138).

Q: Atty. X filed a notice of withdrawal of appearance as counsel for the accused Y after the prosecution rested its case. The reason for the withdrawal of Atty. X was the failure of accused Y to affix his conformity to the demand of Atty. X for increase in attorney's fees. Is the ground for withdrawal justified? Explain. (2000 Bar Question)

Hot Potato Rule GR: A lawyer may not unreasonably withdraw from representing a client. XPN: Withdrawal may be allowed if there is a conflict of interest arising from circumstances beyond the control of the lawyer or the law firm (Black’s Law Dictionary,9th edition).

A: The ground for the withdrawal is not justified. Rule 22.01 (e) of the Code of Professional Responsibility provides that a lawyer may withdraw his services when the client deliberately fails to pay the fees for his services or fails to comply with the retainer agreement. In this case, the client has not failed to pay the lawyer's fees or to comply with the retainer agreement. He has only refused to agree with the lawyer's demand for an increase in his fees. It is his right to refuse as that is part of his freedom of contract.

Q: On the eve of the initial hearing for the reception of evidence for the defense, the defendant and his counsel had a conference where the client directed the lawyer to present as principal defense witnesses 2 persons whose testimonies were personally known to the lawyer to have been perjured. The lawyer informed his client that he refused to go along with the unwarranted course of action proposed by the defendant. But the client insisted on the directive, or else he would not pay the agreed attorney’s fees. When the case was called for hearing the next morning the lawyer forthwith moved in open court that he be relieved as counsel for the defendant. Both the defendant and the plaintiff’s counsel objected to the motion. Under the given facts, is the defense lawyer legally justified in seeking withdrawal from the case? Why or why not? Reason briefly.

Rule 22.02, Canon 22 A lawyer who withdraws or is discharged shall, subject to a retaining lien, immediately turn over all papers 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. Duties of a discharged lawyer or one who withdraws

A: Yes, he is justified. Under rule 22.01 of the CPR, a lawyer may withdraw his services “if the client insists that the lawyer pursue conduct violative of these canon and rules”. The insistence of the client that the lawyer present witnesses whom he personally knows to have been perjured, will expose him to criminal and civil liability and violate his duty of candor, fairness and good faith to the court.

1. Immediately turn-over all papers and property to which the client is entitled; and 2. To cooperate with his successor in the orderly transfer of the case.

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Legal Ethics SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS RULE 139-B, RULES OF COURT

Other sanctions and remedies 1. 2. 3. 4. 5.

Restitution; Assessment of costs; Limitation upon practice; Appointment of a receiver; Requirement that a lawyer take the bar examination or professional responsibility examination; 6. Requirement that a lawyer attend continuing education courses; and 7. Other requirements that the highest court or disciplinary board deems consistent with the purposes of the sanctions.

NATURE AND CHARACTERISTICS OF DISCIPLINARY ACTION AGAINST LAWYERS Rationale of disciplining errant lawyers Practice of law is in the nature of a privilege. Hence, the same may be suspended or removed from the lawyer for reasons provided in the rules, law and jurisprudence. NOTE: A lawyer may be disciplined or suspended for any misconduct professionally or privately (Cruz v. Atty. Jacinto, Adm. Case No. 5235, March 22, 2000).

Forms of disciplinary measures (WARCS-DIP) 1.

Nature of the power to discipline The power to discipline a lawyer is JUDICIAL in nature and can be exercised only by the courts. It cannot be defeated by the legislative or executive departments.

2.

NOTE: The power to disbar and to reinstate is an inherently judicial function (Andres v. Cabrera, SBC- 585, Feb. 29, 1984).

3.

Powers of the Supreme Court in disciplining lawyers (WARD-SIP)

4. 5.

1. 2. 3. 4. 5.

Warn; Admonish; Reprimand; Disbar; Suspend a lawyer; [Sec. 27, Rule 138, Revised Rules of Court (RRC)] 6. Interim suspension; and 7. Probation (IBP Guidelines) Powers of the Court of Appeals and the Regional Trial Courts

NOTE: Indefinite suspension is not cruel. Indefinite suspension put in his hands the key for the restoration of his rights and privileges as a lawyer (Dumadag v. Atty. Lumaya, A.C. No. 2614, June 29, 2000).

They are also empowered to: (WARSP) 1. Warn; 2. Admonish; 3. Reprimand; 4. Suspend an attorney from practice for any of the causes named in Sec 27, Rule 138 until further action of the Supreme Court in the case; (Sec. 16, Rule 139-B) and 5. Probation (IBP Guidelines)

6.

Disbarment – it is the act of the Supreme Court of withdrawing from an attorney the right to practice law. The name of the lawyer is stricken out from the Roll of Attorneys; NOTE: A disbarred lawyer cannot be disbarred again (Yuhico v. Atty. Gutierrez, A.C. No. 8391, November 23, 2010).

NOTE: The CA and RTC cannot disbar a lawyer.

7.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Warning – an act of putting one on his guard against an impending danger, evil, consequence or penalty; Admonition – a gentle or friendly reproof, mild rebuke, warning, reminder, or counseling on a fault, error or oversight; an expression of authoritative advice; Reprimand – a public and formal censure or severe reproof, administered to a person at fault by his superior officer or the body to which he belongs; Censure – official reprimand; Suspension – temporary withholding of a lawyer’s right to practice his profession as a lawyer for a certain period or for an indefinite period of time: a. Definite; b. Indefinite – qualified disbarment; lawyer determines for himself how long or how short his suspension shall last by proving to court that he is once again fit to resume practice of law.

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Interim Suspension – it is the temporary suspension of a lawyer from the practice of law pending imposition of final discipline; Includes:

SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS a. b.

8.

Suspension upon conviction of a “serious crime”; Suspension when the lawyer’s continuing conduct is or is likely to cause immediate and serious injury to a client or public

again promised to pay “within a short time” but failed to do so. Later, he again attempted to borrow money for his daughter’s licensure exa mination in the US Medical Board and assured Yuhico that he will pay his debts on or before a certain date but Yuhico refused to lend him the money, instead, he demanded payment of his debts. Atty. Gutierrez failed to pay which led to the filing of a complaint before the IBP- CBD for non-payment of just debts. It turned out that Atty. Gutierrez was previously disbarred in the case of Huyssen v Atty. Gutierrez for gross misconduct in view of his failure to pay his debts and his issuance of worthless checks. May Atty. Gutierrez be disbarred for the second time?

Probation – it is a sanction that allows a lawyer to practice law under specified conditions. SUI GENERIS

Sui generis in nature Administrative cases against lawyers belong to a class of their own (sui generis). They are distinct from and may proceed independently of civil and criminal cases (In re Almacen, G.R. No. L-27654, Feb. 18, 1970; Funa, 2009).

A: No. The SC held that while the IBP recommended to disbar Atty. Gutierrez for the second time, we do not have double or multiple disbarment in our laws or jurisprudence and neither do we have a law mandating a minimum 5-year requirement for readmission, as cited by the IBP. Thus, while Gutierrez’s infraction calls for the penalty of disbarment, they cannot disbar him anew (Yuhico v Atty. Gutierrez, A.C. No. 8391, Nov. 23, 2010).

Main objectives of disbarment and suspension 1. 2.

3. 4. 5. 6.

Compel the attorney to deal fairly and honestly with his clients; Remove from the profession a person whose misconduct has proved him unfit to be entrusted with the duties and responsibilities belonging to the office of an attorney; Punish the lawyer; Set an example or a warning for the other members of the bar; Safeguard the administration of justice from incompetent and dishonest lawyers; Protect the public.

GROUNDS Specific grounds for suspension or disbarment of a lawyer 1. 2. 3. 4. 5. 6.

NOTE: The purpose and the nature of disbarment proceedings make the number of defenses available in civil and criminal actions inapplicable in disciplinary proceedings.

7.

PRESCRIPTION 8.

There is no prescriptive period for the filing of a complaint against an erring lawyer Rule VII, Section 1 of the Rules of Procedure of the CBD-IBP, which provides for a prescriptive period for the filing of administrative complaints against lawyers, should be struck down as void and of no legal effect for being ultra vires (Heirs of Falame v. Atty. Baguio, A.C. No. 6876, Mar. 7, 2008).

Deceit; Malpractice; Grossly immoral conduct; Conviction of a crime involving moral turpitude; Violation of oath of office; Willful disobedience of any lawful order of a superior court; Corrupt or willful appearance as an attorney for a party to a case without authority to do so (RRC, Sec. 27, Rule 138); Non-payment of IBP membership dues (Santos, Jr. v. Atty. Llas, Adm. Case No. 4749, January 20, 2000).

HOWEVER, The statutory enumeration is not to be taken as a limitation on the general power of SC to suspend or disbar a lawyer (In Re: Puno, A.C. No. 389, Feb. 28, 1967). HENCE, the grounds enumerated are NOT exclusive. Lawyer’s misconduct committed prior and after admission to the bar and its effects

Q: Atty. Gutierrez phoned Yuhico and asked for a cash loan claiming that he needed money to pay for the medical expenses of his mother who was seriously ill, and promised to pay the loan very soon. Consequently, he asked Yuhico again for a loan to pay for his wife’s hospitalization and

1.

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Prior to admission to the bar - acts of misconduct prior to admission include those that indicate that at the time the lawyer took his oath, he did not UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics

2.

NOTE: Mere intimacy between a lawyer and a woman with no impediment to marry each other, and who voluntarily cohabited and had two children, is neither so corrupt to constitute a criminal act nor so unprincipled as to warrant disbarment or disciplinary action against the man as a member of the bar (Arciga v. Maniwang, A.C. No. 1608, Aug. 14, 1981).

possess the required qualifications for membership in the bar. Consequently, the cancellation of his license is justified. After admission to the bar - those which cause loss of moral character on his part or involve violation of his duties to the court, his client, to the legal profession and to the public.

Moral turpitude

NOTE: Disbarment and suspension of a lawyer, being the most severe forms of disciplinary sanction, should be imposed with great caution and only in those cases where the misconduct of the lawyer as an officer of the court and a member of the bar is established by clear, convincing and satisfactory proof (Vitug v. Rongcal, A.C. No. 6313, Sept. 7, 2006).

It has been defined as “everything that is done contrary to justice, honesty, modesty, or good morals, an act of baseness, vileness, or depravity in the private duties which a man owes his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman, or conduct contrary to justice, honesty modesty, or good morals (Soriano v. Dizon, A. C. No. 6792, Jan. 25, 2006).

Disbarment is merited when the action is not the lawyer’s first ethical infraction of the same nature (Que v. Revilla, A.C. No. 7054, Dec. 4, 2009).

Other statutory grounds for suspension and disbarment of members of the bar

Lending money by a justice of Supreme Court, not a ground for disbarment and helping a person apply for sale application on a lot is not an offense and not also a ground for disbarment (Olazo v. Justice Tinga (Ret.), A.M. No. 10-57-SC, December 7, 2010).

It refers to any malfeasance or dereliction of duty committed by a lawyer (Tan TekBeng v. David, Adm. Case No. 1261, Dec. 29 1983; Lapena,Jr., 2009).

Other statutory grounds include: 1. Acquisition of interest in the subject matter of the litigation, either through purchase or assignment (NCC, Art. 1491); 2. Breach of professional duty, inexcusable negligence, or ignorance, or for the revelation of the client’s secrets (RPC, Art. 208); 3. Representing conflicting interests (RPC, Art. 209).

Legal malpractice

Other grounds for discipline

It consists of failure of an attorney to use such skill, prudence and diligence as a lawyer of ordinary skill and capacity commonly possess and exercise in the performance of tasks which they undertake, and when such failure proximately causes damage, it gives rise to an action in tort (Tan TekBeng v. David, A.C. No. 1261, Dec. 29, 1983).

1.

Malpractice

Non-professional misconduct GR: A lawyer may not be suspended or disbarred for misconduct in his non-professional or private capacity. XPN: Where such is so gross as to show him to be morally unfit for office or unworthy of privilege, the court may be justified in suspending or removing him from the Roll of Attorneys. (2005 Bar Question)

Gross misconduct It is any inexcusable, shameful or flagrant unlawful conduct on the part of the person concerned in the administration of justice which is prejudicial to the rights of the parties or to the right determination of a cause, a conduct that is generally motivated by a predetermined, obstinate or intentional purpose (Yumol Jr. v. Ferrer, Sr., A.C. No. 6585, Apr. 21, 2005).

NOTE: The issuance of worthless checks constitutes gross misconduct as its effect transcends the private interests of the parties directly involved in the transaction and touches the interests of the community at large.

2.

Grossly immoral conduct It is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree (Vitug v. Rongcal, A.C. No. 6313, Sept. 7, 2006);

Gross immorality – An act of personal immorality on the part of a lawyer in his private relation with opposite sex may put his character in doubt. But to justify suspension or disbarment, the act must not only be immoral, it must be grossly immoral (Abaigar v. Paz, A.M. No. 997, Sept. 10, 1979). NOTE: Cohabitation per se is not grossly immoral. It

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS depends on circumstances and is not necessary that there be prior conviction for an offense before lawyer may be disciplined for gross immorality. If the evidence is not sufficient to hold a lawyer liable for gross immorality, he may still be reprimanded where evidence shows failure on his part to comply with rigorous standards of conduct required from lawyers.

3.

4. 5.

source of livelihood but rather to ensure that those who exercise the function should be competent, honorable and reliable so that the public may repose confidence in them. NOTE: A disbarment proceeding may proceed regardless of interest or lack of interest of the complainant (Rayos-Ombac v. Rayos, A.C. No. 2884, Jan. 28, 1998). However, if the complainant refuses to testify and the charges cannot then be substantiated, the court will have no alternative but to dismiss the case. (2000 Bar Question)

Conviction of a crime involving moral turpitude – All crimes of which fraud or deceit is an element or those inherently contrary to rules of right conduct, honesty or morality in civilized community. Promoting to violate or violating penal laws Misconduct in discharge of official duties – A lawyer who holds a government office may not be disciplined as a member of the bar for misconduct in the discharge of his duties as government official.

2.

The defense of “double jeopardy” cannot be availed of in a disbarment proceeding; 3. It can be initiated motu proprio by the SC or IBP. It can be initiated without a complaint; 4. It is imprescriptible; 5. Conducted confidentially; 6. It can proceed regardless of the interest or the lack thereof on the part of the complainant; and 7. It in itself constitutes due process of law. 8. Whatever has been decided in a disbarment case cannot be a source of right that may be enforced in another action; 9. In pari delicto rule not applicable; 10. No prejudicial question in disbarment proceedings; 11. Penalty in a disbarment case cannot be in the alternative; and 12. Monetary claims cannot be granted except restitution and return of monies and properties of the client given in the course of the lawyer-client relationship.

However, if the misconduct is in violation of the CPR or of his oath as a lawyer or is of such a character as to affect his qualifications as a lawyer, he may be subject to disciplinary action such as disbarment (Collantes v. Renomeron, A.C. No. 3056, Aug. 16, 1991). NOTE: This rule does not apply to impeachable officials like SC justices, members of constitutional commissions and Ombudsman because they can be removed only by impeachment. 6.

7.

Commission of fraud or falsehood; and Misconduct as notary public NOTE: By applying for having himself commissioned as notary public, a lawyer assumes duties in a dual capacity, the non-performance of which may be a ground for discipline as a member of the bar.

Three-fold purpose of confidentiality of disbarment proceedings 1. To enable the court to make its investigation free from extraneous influence or interference;

PROCEEDINGS

2. To protect the personal and professional reputation of attorneys from baseless charges of disgruntled, vindictive and irresponsible persons or clients by prohibiting publication of such charges pending their final resolution (Albano v. Coloma, A.C. No. 528, Oct. 11, 1967);

Characteristics of disbarment proceedings 1.

Sui Generis – a. Neither purely civil nor purely criminal, they are investigations by the Court into the conduct of one of its officers. b.

c.

3. To deter the press from publishing charges or proceedings based thereon for even a verbatim reproduction of the complaint against an attorney in the newspaper may be actionable.

Not a civil action because there is neither plaintiff nor respondent, and involves no private interest. The complainant is not a party and has no interest in the outcome except as all citizens have in the proper administration of justice. There is no redress for private grievance.

NOTE: The confidentiality of the proceedings is a privilege which may be waived by the lawyer in whom and for the protection of whose personal and professional reputation it is vested, as by presenting the testimony in a disbarment case or using it as impeaching evidence in a civil suit (Villalon v. IAC, G.R. No. L-73751, Sept. 24, 1986).

Not a criminal prosecution because it is not meant as a punishment depriving him of

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics Offices authorized proceedings

to

investigate

PROCEDURAL STEPS FOR DISBARMENT IN THE IBP

disbarment 1.

1. Supreme Court (RRC, Sec. 13, Rule 139-B) 2. IBP through its Commission on Bar Discipline or authorized investigator (RRC, Sec. 2, Rule 139-B) 3. Office of the Solicitor General (RRC, Sec. 13, Rule 139-B)

2.

Purposes of disbarment

3.

1. To protect the public 2. To protect and preserve the legal profession 3. To compel the lawyer to comply with his duties and obligations under the CPR. The burden of proof is upon the complainant and the SC will exercise its disciplinary power only if the complainant establishes his case by the required quantum of proof which is clear, convincing and satisfactory evidence (Aquino v. Mangaoang, A.C. No. 4934, Mar. 17, 2004).

4.

PROCEDURE FOR DISBARMENT BAR MATTER NO. 1960 (MAY 1, 2000) AMANEDMENT OF SEC. 1, RULE 139-B OF THE ROC

5.

Proceedings for disbarment, suspension or discipline of attorneys may be taken by the: 1. Supreme Court motu proprio; or 2. Integrated Bar of the Philippines (IBP) upon the verified complaint of any person. The complaint shall state clearly and concisely the facts complained of and shall be supported by affidavits of persons having personal knowledge of the facts therein alleged and/or by such documents as may substantiate said facts.

6.

7.

DISBARMENT PROCEEDINGS BEFORE THE IBP The IBP Board of Governors may motu proprio, or upon referral by the Supreme Court, or by a Chapter Board of Officers, or at the instance of any person, initiate and prosecute proper charges against erring attorneys including those in the government service; Provided, however, that all charges against Justices of the Court of Tax Appeals and the Sandiganbayan, and Judges of the Court of Tax Appeals and lower courts, even if lawyers are jointly charged with them, shall be filed with the Supreme Court; Provided, further, that charges filed against Justices and Judges before the IBP, including those filed prior to their appointment in the Judiciary, shall immediately be forwarded to the Supreme Court for disposition and adjudication. UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

84

The Board of Governors shall appoint from among the IBP members an investigator or when special circumstances so warrant, a panel of 3 investigators to investigate the complaint; If the complaint is meritorious, the respondent shall be served with a copy requiring him to answer within 15 days from service. The respondent shall file a verified answer containing 6 copies; after receipt of the answer or lapse of the period to do so, the Supreme Court, may, motu proprio or at the instance of the IBP Board of Governors, upon recommendation by the investigator, suspend an attorney from practice, for any of the causes under Rule 138, Sec. 27, during the pendency of the investigation After joinder of the issues or failure to answer, the respondent shall be given full opportunity to defend himself. But if the respondent fails to appear to defend himself in spite of notice, the investigator may proceed ex parte. The investigation shall be terminated within 3 months from commencement which period may be extended. The investigator shall make a report to the Board of Governors within 30 days from termination of the investigation which report shall contain his findings and recommendations together with the evidence. The Board of Governors shall have the power to review the decision of the investigator. Its decision shall be promulgated within a period not exceeding 30 days from the next meeting of the Board following the submission of the report of the investigator. If the decision is a finding of guilt of the charges, the IBP Board of Governors shall issue a resolution setting forth its findings and recommendations which shall be transmitted to the Supreme Court for final action together with the record. If the decision is for exoneration, or if the sanction is less than suspension or dismissal, the Board shall issue a decision exonerating the respondent of imposing a lesser sanction. The resolution exonerating the respondent shall be considered as terminating the case unless upon petition of the complainant or other interested party filed with the Supreme Court within 15 days from notice of the Board’s decision.

SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS RESOLUTION OF THE COURT EN BANC DATED JUNE 17, 2008 B.M. NO. 1755 (RE: RULES OF PROCEDURE OF THE COMMISSION ON BAR DISCIPLINE)

DISBARMENT PROCEEDINGS BEFORE THE SUPREME COURT 1.

Propriety of a motion for reconsideration 1.

2.

3.

4.

A party can no longer file a motion for reconsideration of any order or resolution of the Investigating Commissioner, such motion being a prohibited pleading. Regarding the issue of whether a motion for reconsideration of a decision or resolution of the Board of Governors (BOG) can be entertained, an aggrieved party can file said motion with the BOG within fifteen (15) days from notice of receipt thereof by said party. In case a decision is rendered by the BOG that exonerates the respondent or imposes a sanction less than suspension or disbarment, the aggrieved party can file a motion for reconsideration within the 15-day period from notice. If the motion is denied, said party can file a petition for a review under Rule 45 of the Rules of Court with the Supreme Court within fifteen (15) days from notice of the resolution resolving the motion. If no motion for reconsideration is filed, the decision shall become final and executory and a copy of said decision shall be furnished the Supreme Court. If the imposable penalty is suspension from the practice of law or disbarment, the BOG shall issue a resolution setting forth its findings and recommendations. The aggrieved party can file a motion for reconsideration of said resolution with the BOG within fifteen (15) days from notice. The BOG shall first resolve the incident and shall thereafter elevate the assailed resolution with the entire case records to the Supreme Court for final action. If the 15-day period lapses without any motion for reconsideration having been filed, then the BOG shall likewise transmit to this Court the resolution with the entire case records for appropriate action.

In proceedings initiated motu proprio by the Supreme Court or in other proceeding when the interest of justice so requires, the Supreme Court may refer the case for investigation to the Solicitor General or to any officer of the Supreme Court or judge of a lower court, in which case the investigation shall proceed in the same manner provided in Sections 6 to 11 of Rule 139-B, RRC, save that the review of the report of investigation shall be conducted directly by the Supreme Court (RRC, Sec. 13, Rule 139-B) NOTE: Reference of the Court to the IBP of complaints against lawyers is not mandatory (Zaldivar v. Sandiganbayan, G.R. Nos. 79590-707; Zaldivar v. Gonzales, G.R. No. 80578, Oct. 7,1988). NOTE: Reference of complaints to the IBP is not an exclusive procedure under Rule 139-B, RRC. The Court may conduct disciplinary proceedings without the intervention of the IBP by referring cases for investigation to the Solicitor General or to any officer of the Supreme Court or judge of a lower court. In such case, the report or recommendation of the investigating official shall be reviewed directly by the Supreme Court (Bautista v. Gonzales, A.M. No. 1626, February 12,1990; Funa, 2009).

2.

Based upon the evidence adduced at the investigation, the Solicitor General or other Investigator designated by the Supreme Court a report containing his findings of fact and recommendations together with the record and all the evidence presented in the investigation for the final action of the Supreme Court (RRC, Sec. 14, Rule 139-B).

Q: Atty. Narag’s spouse filed a petition for disbarment because her husband courted one of his students, maintained the said student as a mistress and had children with her. On the other hand, Atty. Narag claimed that his wife was a possessive, jealous woman who abused him and filed the complaint against him out of spite. Atty. Narag, however, failed to refute the testimony given against him. His actions were of public knowledge. Is Atty. Narag’s disbarment appropriate?

NOTE: Lawyers must update their records with the IBP by informing the IBP National Office or their respective chapters of any change in office or residential address and other contact details. In case such change is not duly updated, service of notice on the office or residential address appearing in the records of the IBP National Office shall constitute sufficient notice to a lawyer for purposes of administrative proceedings against him (KeldStemmerik v. Atty. Leonuel Mas, A.C. No. 8010, June 16, 2009).

A: Yes, Atty. Narag failed to prove his innocence because he failed to refute the testimony given against him and it was proved that his actions were of public knowledge and brought disrepute and suffering to his wife and children. Good moral character is a continuing qualification required of every member of the bar. Thus, when a lawyer fails to meet the exacting

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Legal Ethics standard of moral integrity, the Supreme Court may withdraw his or her privilege to practice law. When a lawyer is found guilty of gross immoral conduct, he may be suspended or disbarred. As a lawyer, one must not only refrain from adulterous relationships but must not behave in a way that scandalizes the public by creating a belief that he is flouting those moral standards (Narag v. Atty. Narag, A.C. No. 3405, June 29, 1998). Effect of lawyer’s death in an administrative proceeding against him 1. 2.

Renders the action moot and academic, but The Court may still resolve the case on its merit in order to clear publicly the name of the lawyer PROCEDURE FOR DISBARMENT OR DISCIPLINE OF ATTONEYS BY THE SUPREME COURT MOTU PROPRIO (Rule 139-B, RRC)

Supreme Court shall refer the case to an investigator, who may either be: 1. Solicitor General, 2. Any officer of the SC, or 3. Any judge of a lower court

e Notify Respondent

RESPONDENT’S VERIFIED ANSWER (Must be filed withi n 15 days from service) INVESTIGATION (TERMINATE WITHIN 3 MONTHS)

REPORT TO SUPREME COURT (to be submitted not later than 30 days from investigation’s termination) REPORT MUST CONTAIN THE INVESTIGATOR’S: 1. Findings of fact 2. Recommendations

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

SUPREME COURT FOR REVIEW or JUDGMENT

86

SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS PROCEDURE FOR DISBARMENT OR DISCIPLINE OF ATTORNEYS BY THE IBP (Rule 139-B, RRC)

VERIFIED COMPLAINT TO THE IBP BY ANY PERSON Complaint must be: 1. In writing; 2. State facts complained of; and 3. Supported by affidavits / documents

IBP MotuProprio (Committee on Bar Discipline through National Grievance Investigator)

Shall appoint an investigator / panel of 3 investigators and notify respondent

RECOMMEND DISMISSAL IF NOT MERITORIOUS

IF MERITORIOUS, RESPONDENT’S VERIFIED ANSWER (Must be filed within 15 days from service)

DISMISSAL BY BOARD OF GOVERNORS – (should be promulgated within a period not exceeding 30 days from the next meeting of the board following the submittal of the investigator’s report)

INVESTIGATION (terminate within 3 months) 1. Investigator may issue subpoenas and administer oaths, 2. Provide respondent with opportunity to be heard, 3. May proceed with investigation ex parte should respondent fail to appear.

REPORT TO BOARD OF GOVERNORS (Submitted not later than 30 days from termination of investigation) containing: Findings of facts Recommendations

BOARD OF GOVERNORS FOR REVIEW (issues a Resolution – Should be promulgated within a period not exceeding 30 days from the next meeting of the board following the submittal of the Investigator’s Report.)

SUPREME COURT FOR JUDGMENT

The case shall be deemed terminated unless upon petition of the complainant or other interested party filed with the Supreme Court within fifteen (15) days from notice of the Board's resolution, the Supreme Court orders otherwise

ISSUE DECISION IF: Exonerated Sanction is less than suspension / disbarment (admonition, reprimand, or fine)

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Legal Ethics Effect of the desistance or withdrawal of complaint or non-appearance of complainant in disbarment proceedings

12. 13. 14. 15. 16. 17.

The desistance or the withdrawal of the complainant of the charges against a judge/lawyer does not deprive the court of the authority to proceed to determine the matter. Nor does it necessarily result in the dismissal of the complaint except when, as a consequence of the withdrawal or desistance no evidence is adduced to prove the charges.

NOTE: Disbarment should not be decreed where any punishment less severe such as reprimand, suspension or fine would accomplish the end desired (Amaya v. Tecson, A.C. No. 5996, Feb. 7, 2005).

The doctrine of res ipsa loquitur is applicable in cases of dismissal of judges or disbarment of lawyers (1996, 2003 Bar Questions)

Aggravating circumstances in disbarment 1. 2. 3. 4. 5.

Prior disciplinary offenses; Dishonest or selfish motives; A pattern of misconduct; Multiple offenses; Bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; 6. Submission of false evidence, false statements, or other deceptive practices during the disciplinary process; 7. Refusal to acknowledge wrongful nature of conduct; 8. Vulnerability of victim; 9. Substantial experience in the practice of law; and 10. Indifference to making restitution. (IBP Guidelines 9.22)

This principle or doctrine applies to both judges and lawyers. Judges had been dismissed from the service without need of a formal investigation because based on the records, the gross misconduct or inefficiency of judges clearly appears (Uy v. Mercado, A.M. No. R-368MTJ, Sept. 30, 1987). The same principle applies to lawyers. Thus, where on the basis of the lawyer’s comment or answer to show a show-cause order of SC, it appears that the lawyer has so conducted himself in a manner which exhibits his blatant disrespect to the court, or his want of good moral character or his violation of the attorney’s oath, the lawyer may be suspended or disbarred without need of trial-type proceeding. What counts is that the lawyer has been given the opportunity to air his side (Prudential Bank v. Castro, A.M. No. 2756, June 5, 1986).

Guidelines to be observed in the lifting of an order suspending a lawyer from the practice of law 1. Upon the expiration of the period of suspension, respondent shall file a Sworn Statement with the Court, through the Office of the Bar Confidant, stating therein that he or she has desisted from the practice of law and has not appeared in any court during the period of his or her suspension;

Mitigating circumstances in disbarment 1.

Good faith in the acquisition of a property of the client subject of litigation (In Re: Ruste, A.M. No. 632, June 27, 1940); 2. Inexperience of the lawyer (Munoz v. People, G.R. No. L-33672, Sept. 28, 1973); 3. Age (Santos v. Tan, A.C. No. 2697, Apr. 19, 1991); 4. Apology (Munoz v. People, G.R. No. L- 33672, Sept. 28, 1973); 5. Lack of Intention to slight or offend the Court (Rheem of the Philippines, Inc. v. Ferrer, G.R. No. L-22979, Jan. 27, 1967); 6. Absence of prior disciplinary record; 7. Absence of dishonest or selfish motive; 8. Personal or emotional problems; 9. Timely good faith effort to make restitution or to rectify consequences of misconduct; 10. Full and free disclosure to disciplinary board or cooperative attitude toward the proceedings; 11. Character or reputation; UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Physical or mental disability or impairment; Delay in disciplinary proceedings; Interim rehabilitation; Imposition of other penalties or sanctions; Remorse; Remoteness of prior offenses (IBP Guidelines 9.32).

2. Copies of the Sworn Statement shall be furnished to the Local Chapter of the IBP and to the Executive Judge of the courts where respondent has pending cases handled by him or her, and/or where he or she has appeared as counsel; and 3. The Sworn Statement shall be considered as proof of respondent’s compliance with the order of suspension; DISCIPLINE OF FILIPINO LAWYERS PRACTICING ABROAD If the Filipino lawyer is disbarred or suspended from the practice of law by a competent court or disciplinary agency in a foreign jurisdiction where he has been

88

SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS admitted as an attorney, and a ground therefor includes any of the acts enumerated in Section 27, Rule 138 of the RRC, such disbarment or suspension is a ground for his disbarment or suspension in the Philippines (Lapena, 2009). NOTE: The judgment, resolution or order of the foreign court or disciplinary agency shall be prima facie evidence of the ground for disbarment or suspension (SC Resolution date 21 February 1992 amending Sec. 27, Rule 138, RRC).

Judgment of suspension of a Filipino lawyer in a foreign court The judgment of suspension against a Filipino lawyer in a foreign jurisdiction does not automatically result in his suspension or disbarment in the Philippines as the acts giving rise to his suspension are not grounds for disbarment and suspension in this jurisdiction. Judgment of suspension against a Filipino lawyer may transmute into a similar judgment of suspension in the Philippines only if the basis of the foreign court's action includes any of the grounds for disbarment or suspension in this jurisdiction. Such judgment merely constitutes prima facie evidence of unethical acts as lawyer (Velez v. De Vera, A.C. No. 6697, July 25, 2006). Q: Atty. LA is a member of the Philippine Bar and the California Bar in the United States. For willful disobedience of a lawful order of a Superior Court in Los Angeles, Atty. LA was suspended from the practice of law in California for one (1) year. May his suspension abroad be considered a ground for disciplinary action against Atty. LA in the Philippines? Why? (2002 Bar Question) A: The suspension of Atty. LA from the practice of law abroad may be considered as a ground for disciplinary action here if such suspension was based on one of the grounds for disbarment in the Philippines or shows a loss of his good moral character, a qualification he has to maintain in order to remain a member of the Philippine Bar.

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics READMISSION TO THE BAR

Enterprises, Inc. et al. v. Atty. de Vera, et al. and Atty. de Vera v. Atty. Encanto, et al.).

Reinstatement and its requirements

NOTE: The power of the Supreme Court to reinstate is based on its constitutional prerogative to promulgate rules on the admission of applicants to the practice of law (1987 Constitution, Sec. 5[5], Art. VIII).

Thus, according to the OBC, a suspended lawyer must first present proof(s) of his compliance by submitting certifications from the Integrated Bar of the Philippines and from the Executive Judge that he has indeed desisted from the practice of law during the period of suspension. Thereafter, the Court, after evaluation, and upon a favorable recommendation from the OBC, will issue a resolution lifting the order of suspension and thus allow him to resume the practice of law (Maniago v. Atty. De Dios, A.C. No. 7472, March 30, 2010).

READMISSION TO THE BAR OF LAWYERS WHO HAVE BEEN SUSPENDED

Guidelines to be observed in case of lifting an order which suspended a lawyer from the practice of law

Q: Raul Gonzales was found guilty of both contempt of court in facie curiae and gross misconduct as an officer of court and member of the bar. For this, he was suspended indefinitely. After more than 4 years from his suspension, Gonzales filed an ex-parte motion to lift his suspension from the practice of law, alleging that he gave free legal aid services by paying lawyers to do the same as he could not personally represent said clients; pursued civic work for the poor; brought honor to the country by delivering a paper in Switzerland; that he has a long record in the service of human rights and the rule of law; his suspension of 51 months has been the longest so far; states his profound regrets for the inconvenience which he has caused to the Court; sincerely reiterates his respect to the institution as he reiterates his oath to conduct himself as a lawyer. May his suspension be lifted?

The following guidelines were issued by the Supreme Court, the same to be observed in the matter of the lifting of an order suspending a lawyer from the practice of law:

Reinstatement is the restoration of the privilege to practice law after a lawyer has been disbarred. The applicant must, satisfy the Court that he is a person of good moral character – a fit and proper person to practice law.

1.

2.

3.

A: Yes. Gonzales’ contrition, so noticeably absent in his earlier pleadings, has washed clean the offense of his disrespect. His remorse has soften his arrogance and made up for his misconduct. Gonzales’ suspension has given him ample time and opportunity to amend his erring ways, rehabilitate himself, and thus, prove himself worthy once again to enjoy the privileges of membership of the Bar. His motion was granted (Zaldivar v. Gonzales, G.R. Nos. 79690- 707, April 7, 1993).

4.

5.

6.

Lifting of suspension is not automatic upon the end of the period stated in the Court’s decision The lifting of a lawyer’s suspension is not automatic upon the end of the period stated in the Court’s decision, and an order from the Court lifting the suspension at the end of the period is necessary in order to enable [him] to resume the practice of his profession (J.K. Mercado and Sons Agricultural UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

90

After a finding that respondent lawyer must be suspended from the practice of law, the Court shall render a decision imposing the penalty; Unless the Court explicitly states that the decision is immediately executory upon receipt thereof, respondent has 15 days within which to file a motion for reconsideration thereof. The denial of said motion shall render the decision final and executory; Upon the expiration of the period of suspension, respondent shall file a Sworn Statement with the Court, through the Office of the Bar Confidant, stating therein that he or she has desisted from the practice of law and has not appeared in any court during the period of his or her suspension; Copies of the Sworn Statement shall be furnished to the Local Chapter of the IBP and to the Executive Judge of the courts where respondent has pending cases handled by him or her, and/or where he or she has appeared as counsel; The Sworn Statement shall be considered as proof of respondent’s compliance with the order of suspension; Any finding or report contrary to the statements made by the lawyer under oath shall be a ground for the imposition of a more severe punishment, or disbarment, as may be warranted.

READMISSION TO THE BAR READMISSION TO THE BAR OF LAWYERS WHO HAVE BEEN DISBARRED 2. Requirements for judicial clemency for disbarred lawyers and judges

3.

1. There must be proof of remorse and reformation. 2. Sufficient time must have elapsed from the imposition of the penalty to ensure a period of reform. 3. The age of the person asking for clemency must show that he still has productive years ahead of him that can be put to good use by giving him a chance to redeem himself. 4. There must be a showing of promise (such as intellectual aptitude, learning or legal acumen or contribution to the legal scholarship and the development of the legal system), as well as potential for public service. 5. There must be other relevant factors and circumstances that may justify clemency.

4.

Effect of the executive pardon granted by the President If during the pendency of a disbarment proceeding the respondent was granted executive pardon, the dismissal of the case on that sole basis will depend on whether the executive pardon is absolute or conditional. 1. Absolute or unconditional pardon - the disbarment case will be dismissed. 2. Conditional pardon - the disbarment case will not be dismissed on the basis thereof. NOTE: To be reinstated, there is still a need for the filing of an appropriate petition with the Supreme Court (In re: Rovero, A.M. No. 126, Dec. 29, 1980).

Supreme Court’s guidelines in reinstatement 1. 2. 3.

4. 5.

6.

The applicant’s character and standing prior to the disbarment; The nature and character of the charge for which he was disbarred; His conduct subsequent to the disbarment, and the time that has elapsed between the disbarment and the application for reinstatement (Prudential Bank v. Benjamin Grecia, A.C. No. 2756, Dec. 18, 1990); His efficient government service (In re: Adriatico, G.R. No. L-2532, Nov. 17, 1910); Applicant’s appreciation of the significance of his dereliction and his assurance that he now possesses the requisite probity and integrity; and Favorable endorsement of the IBP and pleas of his loved ones (Yap Tan v. Sabandal, B.M. No. 144, Feb. 24, 1989).

Q: X filed proceedings for disbarment against his lawyer, Atty. C, following the latter’s conviction for estafa for misappropriating funds belonging to his client (X). While the proceedings for disbarment was pending, the President granted absolute pardon in favor of Atty. C. Atty. C, then, moved for the dismissal of the disbarment case. Should the motion be granted? A: An absolute pardon by the President is one that operates to wipe out the conviction as well as the offense itself. The grant thereof to a lawyer is a bar to a proceeding for disbarment against him, if such proceeding is based solely on the fact of such conviction (In re: Parcasio, A.C. No. 100, Feb. 18, 1976). But where the proceeding to disbar is founded on the professional misconduct involved in the transaction which culminated in his conviction, the effect of the pardon is only to relieve him of the penal consequences of his act and does not operate as a bar to the disbarment proceeding, inasmuch as the criminal acts may nevertheless constitute proof that the attorney does not possess good moral character (In re: Lontok, 43 Phil. 293, Apr. 7, 1922).

NOTE: Whether or not the applicant shall be reinstated rests on the discretion of the court (Prudential Bank v. Benjamin Grecia, A.C. No. 2756, Dec. 18, 1990). The court may require applicant for reinstatement to enroll in and pass the required fourth year review classes in a recognized law school (Cui v. Cui, In Re: Resian, A.C. No. 270, Mar. 20, 1974).

NOTE: In the light of recent court pronouncements that a lawyer may be disciplined even for non-professional misconduct, one may argue that a lawyer convicted of a crime involving moral turpitude, and subsequently receives absolute pardon, may still be proceeded against under the

Effects of reinstatement 1.

previous disbarment (Cui v. Cui, G.R. No. L-18727, Aug. 31, 1964); Recognition of moral rehabilitation and mental fitness to practice law; Lawyer shall be subject to same law, rules and regulations as those applicable to any other lawyer; and Lawyer must comply with the conditions imposed on his readmission.

Reinstatement to the roll of attorneys wipes out the restrictions and disabilities resulting from a

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics Code of Professional Responsibility even if the acts of which he was found guilty did not involve professional misconduct (A modification of In Re Lontok, supra). The ground for the petition for disciplinary action under the Code must, however, not be founded alone on the conviction but must be based on the acts committed by the lawyer which rendered him morally unfit to be a member of the bar (Aguirre, Legal and Judicial Ethics. A Pre-week Reviewer, 2006 Edition).

practice law upon reacquiring Filipino citizenship? A: The Constitution provides that the practice of all professions in the Philippines shall be limited to Filipino citizens save in cases prescribed by law. Since Filipino citizenship is a requirement for admission to the bar, loss thereof terminates membership in the Philippine bar and, consequently, the privilege to engage in the practice of law. In other words, the loss of Filipino citizenship ipso jure terminates the privilege to practice law in the Philippines. The practice of law is a privilege denied to foreigners.

Q: X, a member of the Bar, was charged with and found guilty of estafa, for which he was sentenced to suffer imprisonment and to indemnify the offended party for the amount Involved. Not having taken an appeal from the judgment of conviction, upon finality thereof he was taken into custody to serve sentence. A month after he was incarcerated, he was granted pardon by the Chief Executive on condition that he would not commit another offense during the unserved portion of his prison sentence. Soon after X’s release from custody after being pardoned, the offended party in the criminal case filed a Complaint for Disbarment against X in the Supreme Court. X set up the defense that having been pardoned thus he may not be disbarred from the practice of law anymore. Is X’s contention tenable? (1999 Bar Question)

The exception is when Filipino citizenship is lost by reason of naturalization as a citizen of another country but subsequently reacquired pursuant to R.A. 9225. This is because “all Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of R.A. 9225.” Therefore, a Filipino lawyer who becomes a citizen of another country is deemed never to have lost his Philippine citizenship if he reacquires it in accordance with R.A. 9225. Although he is also deemed never to have terminated his membership in the Philippine bar, no automatic right to resume law practice accrues. Before a lawyer who reacquires Filipino citizenship pursuant to R.A. 9225 can resume his law practice, he must first secure from the SC the authority to do so, conditioned on:

A: X’s contention is not tenable. He was granted only a conditional pardon. Such conditional pardon merely relieved him of the penal consequences of his act but did not operate as a bar to his disbarment. Such pardon does not reach the offense itself. Hence, it does not constitute a bar to his disbarment. (In Re GutierrezbA.C. No. L-363, July 31, 1962; In re Avancena, A.C. No. 407, Aug. 15, 1967). Furthermore, the acts of X leading to his conviction may be used to show that he does not possess the necessary requirement of good moral character for continued membership in the Bar (In re Valloces, A.C. No. 439, Sept. 30, 1982).

1. The updating and payment in full of the annual membership dues in the IBP; 2. The payment of professional tax; 3. The completion of at least 36 credit hours of mandatory continuing legal education, this is especially significant to refresh the applicant/petitioner’s knowledge of Philippine laws and update him of legal developments; and 4. The retaking of the lawyer’s oath which will not only remind him of his duties and responsibilities as a lawyer and as an officer of the Court, but also renew his pledge to maintain allegiance to the Republic of the Philippines (Petition for Leave to Resume Practice of Law of Benjamin Dacanay, B.M. No. 1678, Dec. 17, 2007).

READMISSION TO THE BAR OF LAWYERS WHO HAVE BEEN REPATRIATED Q: Dacanay practiced law until he migrated to Canada to seek medical attention to his ailments. He subsequently applied for Canadian citizenship to avail of Canada’s free medical aid program. His application was approved and he became a Canadian citizen. Dacanay later on reacquired his Philippine citizenship by virtue of R.A. 9225. Did Dacanay lose his membership in the Philippine bar when he gave up his Philippine citizenship? Can he automatically

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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MANDATORY CONTINUING LEGAL EDUCATION MANDATORY CONTINUING LEGAL EDUCATION (MCLE) Purpose of MCLE

2.

MCLE ensures that members of the IBP are kept abreast with law and jurisprudence throughout their career, maintain the ethics of the profession and enhance the standards of the practice of law. Committee Education 1.

2. 3. 4.

on

Mandatory

Continuing

Legal COMPLIANCE

Composition: a. Retired Justice of the SC – to act as Chairman, who is nominated by the SC b. IBP National President – acts as the ViceChairman c. 3 other members – nominated by the Philippine Judicial Academy, UP Law Center and Association of Law Professors, respectively Members are of proven probity and integrity Compensation as may be determined by the SC The initial terms of each of the 3 members shall be 5, 4, and 3 years respectively

Non-compliance of the MCLE 1. Failure to complete education requirement within the compliance period; 2. Failure to provide attestation of compliance or exemption; 3. Failure to provide satisfactory evidence of compliance (including evidence of exempt status) within the prescribed period; 4. Failure to satisfy the education requirement and furnish evidence of such compliance within 60 days from receipt of non-compliance notice; 5. Failure to pay non-compliance fee within the prescribed period; or

REQUIREMENTS

6. Any other act or omission analogous to any of the foregoing or intended to circumvent or evade compliance with the MCLE requirements.

Requirements of completion of MCLE Members of the IBP, unless exempted under Rule 7, shall complete every 3 years at least 36 hours of continuing legal education activities. The 36 hours shall be divided as follows: 1. 6 hours – legal ethics 2. 4 hours – trial and pretrial skills 3. 5 hours – alternative dispute resolution 4. 9 hours – updates on substantive and procedural laws and jurisprudence 5. 4 hours – legal writing and oral advocacy 6. 2 hours – international law and international conventions 7. Remaining 6 hours – such other subjects as may be prescribed by the Committee on MCLE

NOTE: Members failing to comply will receive a NonCompliance Notice stating the specific deficiency and will be given 60 days from date of notification to file a response.

EXEMPTIONS Persons exempted from the MCLE 1. 2. 3.

MCLE for a newly admitted member of the bar Starts on the first day of the month of his admission. (Bar Matter No. 850, Sec. 5, last par.) Classes of credits 1.

assigned as panelist, reactor, or commentator, etc. in approved education activities; teaching in law school or lecturing in bar review classes. Non-participatory – Preparing, as author or coauthor, written materials (article, book or book review) which contribute to the legal education of the author member, which were not prepared in the ordinary course of his practice or employment; editing a law book, law journal or legal newsletter.

Participatory credit – Attending approved education activities like seminars, conventions, symposia, and the like; speaking or lecturing, or

4.

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The President, Vice-President and the Secretaries and Undersecretaries of Executive Departments; Senators and Members of the House of Representatives; The Chief Justice and Associate Justices of the Supreme Court, incumbent and retired members of the judiciary, incumbent members of Judicial Bar Council, incumbent members of the MCLE Committee, incumbent court lawyers who have availed of the Philippine Judicial Academy programs of continuing judicial education (Amendment to Bar Matter 850, Resolution\ of the Court En Banc, July 13, 2004); The Chief State Counsel, Chief State Prosecutor and Assistant Secretaries of the Dept. of Justice; UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics 5.

The Solicitor General and the Assistant Solicitor General; 6. The Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel; 7. The Chairman and Members of the Constitutional Commissions; 8. The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsmen and the Special Prosecutor of the Office of the Ombudsman; 9. Heads of government agencies exercising quasijudicial functions; 10. Incumbent deans, bar reviewers and professors of law who have teaching experience for at least 10 years in accredited law schools; 11. The Chancellor, Vice-Chancellor and members of the Corps of Professional and Professorial Lecturers of the Philippine Judicial Academy; and 12. Governors and Mayors because they are prohibited from practicing their profession

SANCTIONS Consequences of non-compliance A member who fails to comply with the requirements after the 60-day period shall be listed as delinquent member by the IBP Board of Governors upon recommendation of the Committee on MCLE. NOTE: The listing as a delinquent member is an administrative in nature but it shall be made with notice and hearing by the Committee on MCLE. B.M. No. 1922, which took effect on January 1, 2009, requires practicing members of the bar to indicate in all pleadings filed before the courts or quasi-judicial bodies, the number and date of issue of their MCLE Certificate of Compliance or Certificate of Exemption, as may be applicable, for the immediately preceding compliance period. Failure to disclose the required information would cause the dismissal of the case and the expunction of the pleadings from the records.

BAR MATTER 2012, RULE ON MANDATORY LEGAL AID SERVICE

Other parties exempted: 1. Those who are not in law practice, private or public; 2. Those who have retired from law practice with the approval of the IBP Board of Governors.

The mandatory Legal Aid Service mandates every practicing lawyer to render a minimum of 60 hours of free legal aid services to indigent litigants yearly. Purpose

Request for exemption under special circumstance

The rule seeks to enhance the duty of lawyers to the society as agents of social change and to the courts as officers thereof by helping improve access to justice by the less privileged members of society and expedite the resolution of cases involving them. Mandatory free legal service by members of the bar and their active support thereof will aid the efficient and effective administration of justice especially in cases involving indigent and pauper litigants (Sec. 2, B.M. No. 2012).

If there is a good cause for exemption from or modification of requirement, member may file a verified request setting forth good cause for exemption (such as physical disability, illness, postgraduate study abroad, proven expertise in law, etc.) from compliance with or modification of any of the requirements, including an extension of time for compliance, in accordance with procedure to be established by the Committee on MCLE.

Scope

NOTE: Applications for exemption from or modification of the MCLE requirement shall be under oath and supported by documents.

It shall govern the mandatory requirement for practicing lawyers to render free legal aid services in all cases (whether, civil, criminal or administrative) involving indigent and pauper litigants where the assistance of a lawyer is needed. It shall also govern the duty of other members of the legal profession to support the legal aid program of the Integrated Bar of the Philippines (B.M. No. 2012, Sec 3).

Q: Atty. Mike started teaching Agrarian Reform and Taxation in June 2001 at the Arts and Sciences Department of the Far Eastern University. In 2005, he moved to San Sebastian Institute of Law where he taught Political Law. Is Atty. Mike exempt from complying with the MCLE for the 4th compliance period in April 2013? (2011 Bar Question)

Practicing lawyers are members of the Philippine Bar who appear for and in behalf of parties in courts of law and quasi-judicial agencies.

A: No, since he has yet to complete the required teaching experience to be exempt.

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

The term “practicing lawyers” shall EXCLUDE: 1. Government employees and incumbent elective officials not allowed by law to practice;

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MANDATORY CONTINUING LEGAL EDUCATION 2. 3.

4.

Lawyers who by law are not allowed to appear in court; Supervising lawyers of students enrolled in law student practice in duly accredited legal clinics of law schools and lawyers of non-governmental organizations (NGOs) and peoples’ organizations (POs) like the Free Legal Assistance Group who by the nature of their work already render free legal aid to indigent and pauper litigants; and Lawyers not covered under subparagraphs 1 to 3 including those who are employed in the private sector but do not appear for and in behalf of parties in courts of law and quasi-judicial agencies.(B.M. 1. 2012, Sec. 4[a])

6.

reports to the IBP’s National Committee on Legal Aid (NCLA) for recording and documentation. The submission shall be made within forty-five (45) days after the mandatory submission of compliance reports by the practicing lawyers. (B.M. 2012, Sec. 5[d]) Practicing lawyers shall indicate in all pleadings filed before the courts or quasi-judicial bodies the number and date of issue of their certificate of compliance for the immediately preceding compliance period. (B.M. 2012, Sec 5[e])

Contents of a certificate from the Clerk of Court attesting the number of hours spent in rendering free legal services

Legal aid cases 1. The case or cases where the legal aid service was rendered, the party or parties in the said case(s), the docket number of the said case(s) and the date(s) the service was rendered 2. The number of hours actually spent 3. The number of hours actually spent attending mediation, conciliation or any other mode of ADR on a particular case 4. A motion (except a motion for extension of time to file a pleading or for postponement of hearing or conference) or pleading filed on a particular case shall be considered as one (1) hour of service (B.M. 2012, Sec 5[b]).

It includes actions, disputes, and controversies that are criminal, civil and administrative in nature in whatever stage wherein indigent and pauper litigants need legal representation (B. M.2012, Sec. 4[c]). Requirements for mandatory legal aid service Under the Rule, a practicing lawyer, among others, shall coordinate with the Clerk of Court or the Legal Aid Chairperson of one’s Integrated Bar of the Philippines (IBP) Chapter for cases where the lawyer may render free legal aid service: 1.

2.

3.

4.

5.

NOTE: The Clerk of Court shall issue the certificate in triplicate, one (1) copy to be retained by the practicing lawyer, one (1) copy to be retained by the Clerk of Court and one (1) copy to be attached to the lawyer's compliance report (B.M. 2012, Sec 5[b][iv] second par.)

Every practicing lawyer is required to render a minimum of 60 hours of free legal aid services to indigent litigants in a year. Said 60 hours shall be spread within the period of 12 months, with a minimum of 5 hours of free legal aid services each month. However, where it is necessary for the practicing lawyer to render legal aid service for more than 5 hours in one month, the excess hours may be credited to the said lawyer for the succeeding periods (B.M. 2012, Sec. 5[a] first par.). The practicing lawyer shall report compliance with the requirement within 10 days of the last month of each quarter of the year. (B.M. 2012, Sec. 5[a] third par.) A practicing lawyer shall be required to secure and obtain a certificate from the Clerk of Court attesting to the number of hours spent rendering free legal aid services in a case. (B.M. 2012, Sec. 5[b]) Said compliance report shall be submitted to the Legal Aid Chairperson of the IBP Chapter within the Court’s jurisdiction. (B.M. 2012, Sec. 5[c]) The IBP chapter shall, after verification, issue a compliance certificate to the concerned lawyer. The IBP Chapter shall also submit compliance

Credits to lawyers who render free legal aid A lawyer who renders mandatory legal aid service for the required number of hours in a year for the three year-period covered by a compliance period under the Rules on MCLE shall be credited the following: 1. Two (2) credit units for legal ethics 2. Two (2) credit units for trial and pretrial skills 3. Two (2) credit units for alternative dispute resolution 4. Four (4) credit units for legal writing and oral advocacy 5. Four (4) credit units for substantive and procedural laws and jurisprudence 6. Six (6) credit units for such subjects as may be prescribed by the MCLE Committee under Section 2(g), Rule 2 of the Rules on MCLE A lawyer who renders mandatory legal aid service for the required number of hours in a year for at least two consecutive years within the three year- period

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics officer of an NGO (non-governmental organizations) or PO (people’s organizations) shall be a ground for an administrative case against the said Clerk of Court or Chairperson. This is without prejudice to the filing of the criminal and administrative charges against the malfeasor (B.M. 2012, Sec. 7[e]).

covered by a compliance period under the Rules on MCLE shall be credited the following: 1. One (1) credit unit for legal ethics 2. One (1) credit unit for trial and pretrial skills 3. One (1) credit unit for alternative dispute resolution 4. Two (2) credit units for legal writing and oral advocacy 5. Two (2) credit units for substantive and procedural laws and jurisprudence 6. Three (3) credit units for such subjects as may be prescribed by the MCLE Committee under Section 2(g), Rule 2 of the Rules on MCLE. (Sec. 8, B.M. 2012) Sanctions in case of non-compliance with the rule on mandatory legal aid service 1.

2.

3.

4.

5.

6. 7.

8.

At the end of every calendar year, any practicing lawyer who fails to meet the minimum prescribed 60 hours of legal aid service each year shall be required by the IBP, through the National Committee on Legal Aid (NCLA), to explain why he was unable to render the minimum prescribed number of hours. If no explanation has been given or if the NCLA finds the explanation unsatisfactory, the NCLA shall make a report and recommendation to the IBP Board of Governors that the erring lawyer be declared a member of the IBP who is not in good standing. Upon approval of the NCLA’s recommendation, the IBP Board of Governors shall declare the erring lawyer as a member not in good standing. The notice to the lawyer shall include a directive to pay P4,000.00 penalty which shall accrue to the special fund for the legal aid program of the IBP. The “not in good standing” declaration shall be effective for a period of 3 months from the receipt of the erring lawyer of the notice from the IBP Board of Governors. During the said period, the lawyer cannot appear in court or any quasi-judicial body as counsel. Provided, however, that the “not in good standing” status shall subsist even after the lapse of the 3-month period until and unless the penalty shall have been paid. Any lawyer who fails to comply with his duties under this Rule for at least 3 consecutive years shall be the subject of disciplinary proceedings to be instituted motu proprio by the Committee on Bar Discipline. (B.M. 2012, Sec. 7)

NOTE: The falsification of a certificate or any contents thereof by any Clerk of Court or by any Chairperson of the Legal Aid Committee of the IBP local chapter where the case is pending or by the Director of a legal clinic or responsible UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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NOTARIAL PRACTICE Issuance of notarial commission

NOTARIAL PRACTICE (1996, 2005, 2007 Bar Questions)

A notarial commission may be issued by an Executive Judge to any qualified person who submits a petition in accordance with the Rules on Notarial Practice (A.M. No. 02-8-13-SC, first par., Sec. 1, Rule III).

Purpose of the Notarial Law 1. 2. 3.

To promote, serve, and protect public interest; To simplify, clarify, and modernize the rules governing notaries public; and To foster ethical conduct among notaries public (Sec. 2, Rule I, A.M. No. 02-8-13-SC)

Form of the petition and supporting documents for a notarial commission Every petition for a notarial commission shall be in writing, verified, and shall include the following:

Effect of notarized document A document acknowledged before a notary public is a public document (RRC, Sec. 19, Rule 132) and may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved (RRC, Sec. 30, Rule 132).

1.

A statement containing the petitioner's personal qualifications, including the petitioner's date of birth, residence, telephone number, professional tax receipt, roll of attorney's number and IBP membership number;

2.

Certification of good moral character of the petitioner by at least 2 executive officers of the local chapter of the Integrated Bar of the Philippines where he is applying for commission;

3.

Proof of payment for the filing of the petition as required by the Rules on Notarial Practice; and

4.

Three passport-size color photographs with light background taken within 30 days of the application. The photograph should not be retouched. The petitioner shall sign his name at the bottom part of the photographs (A.M. No. 028-13-SC, Sec. 2,Rule III).

QUALIFICATIONS OF NOTARY PUBLIC Notary public A person appointed by the court whose duty is to attest to the genuineness of any deed or writing in order to render them available as evidence of facts stated therein and who is authorized by the statute to administer various oaths. NOTE: “Notary Public" and "Notary" refer to any person commissioned to perform official acts under the rules on Notarial Practice (Sec. 9, Rule II, A.M. No. 02-8-13-SC).

NOTE: Every petitioner for a notarial commission shall pay the application fee as prescribed in the Rules of Court (A.M. No. 02-8-13-SC, Sec. 3, Rule III).

Qualifications of a notary public

Requirements before the executive judge conducts a summary hearing on the petition

To be eligible for commissioning as notary public, the petitioner must be: 1. A citizen of the Philippines; 2. Over 21 years of age; 3. A resident in the Philippines for at least 1 year and maintains a regular place of work or business in the city or province where the commission is to be issued; 4. A member of the Philippine Bar in good standing with clearances from the Office of the Bar Confidant of the Supreme Court and the Integrated Bar of the Philippines; and 5. Has not been convicted in the first instance of any crime involving moral turpitude (second par., Sec. 1, Rule III,2004 Rules on Notarial Practice, A.M.).

1. 2. 3.

The petition is sufficient in form and substance; The petitioner proves the allegations contained in the petition; and The petitioner establishes to the satisfaction of the Executive Judge that he has read and fully understood the Rules on Notarial Practice.

NOTE: The Executive Judge shall forthwith issue a commission and a Certificate of Authorization to Purchase a Notarial Seal in favor of the petitioner (A.M. No. 02-8-13-SC, Sec. 4, Rule III)

Two kinds of duties 1. 2.

Commission

Execution of formalities required by law; and Verification of the capacity and identity of the parties as well as the legality of the act executed

It refers to the grant of authority to perform notarial acts and to the written evidence of the authority (Sec. 3, Rule II, A.M. 02-8-13-SC).

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Legal Ethics Duties of a notary public 1. 2.

3.

4. 5. 6.

7.

conveyances which bear no direct relation to the performance of their functions as judges.

To keep a notarial register To make the proper entry or entries in his notarial register touching his notarial acts in the manner required by the law To send the copy of the entries to the proper clerk of court within the first 10 days of the month next following To affix to acknowledgments the date of expiration of his commission, as required by law To forward his notarial register, when filled, to the proper clerk of court To make report, within reasonable time to the proper judge concerning the performance of his duties, as may be required by such judge To make the proper notation regarding residence certificates (Sec. 240, Rev. Adm. Code).

However, MTC and MCTC judges assigned to municipalities or circuits with no lawyers or notaries public may, in the capacity as notaries public ex-officio, perform any act within the competence of a regular notary public, provided that: 1. All notarial fees charged be for the account of the Government and turned over to the municipal treasurer 2. Certification be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit. Their authority to notarize is limited to their sala. Hence, they cannot notarize documents filed in another town because it will be considered as practice of law.

Lawyers as notary public

Q: Vicente Batic charged Judge Victorio Galapon Jr. with engaging in unauthorized notarial practice for having notarized a Deed of Absolute Sale between Antonio Caamic and Lualhati Ellert. Under the deed of sale, Lualhati Ellert, was described as single. At the time of Galapon’s notarization of the Deed of Sale, there was a notary public in Dulag, Leyte. Judge Galapon claims that he did not prepare the document and that his participation was limited to its acknowledgment, for which the corresponding fee was collected by and paid to the clerk of court. Are MTC judges like Judge Galapon absolutely prohibited from acting as notaries public?

GR: Only those admitted to the practice of law are qualified to be notaries public. XPNs: When there are no persons with the necessary qualifications or where there are qualified persons but they refuse appointment. In which case, the following persons may be appointed as notaries: 1. Those who passed the studies of law in a reputable university; or 2. A clerk or deputy clerk of court for a period of not less than two years. Prohibition against the RTC judges to notarize

A: No. While Judge Galapon explains that he sincerely believed that when no notary public is available, the MTC may act as ex-officio notary public, provided the fees shall be for the government, such is not enough to exonerate him from liability. His acts do not fall under the exception because at the time of his notarization of the Deed of Sale, there was a notary public in Dulag, Leyte (Vicente Batic v. Judge Victorio Galapon Jr., A.M. No. MTJ-99-1239, July 29, 2005).

Section 35, Rule 138, of the Revised Rules of Court as well as Canon 5, Rule 5.07 of the Code of Judicial Conduct provides that no judge or other official or employee of the superior courts shall engage in private practice as a member of the bar or give professional advice to clients. Notarization of documents is considered a practice of law. The rights, duties, privileges and functions of the office of an attorney-at-law are so inherently incompatible with the official functions, duties, powers, discretions and privileges of a judge of the Regional Trial Court.

Clerk of court as notary Clerk of court may at as notary public, provided he is commissioned and has been permitted by his superior. Such consent is necessary because the act of notarizing a document is a practice of law.

Authority of MTC judges to notarize and its limitation MTC and MCTC judges may act as notaries public exofficio in the notarization of documents connected only with the exercise of their official functions and duties. They may not, as notaries public ex-officio, undertake the preparation and acknowledgment of private documents, contracts and other acts of UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Rules with regard to fees that a notary public may charge 1.

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For performing a notarial act, a notary public may charge the maximum fee as prescribed by the

NOTARIAL PRACTICE

2.

3.

4.

5.

Supreme Court unless he waives the fee in whole or in part (A. M. 02-8-13-SC, Sec. 1, Rule V); A notary public may charge travel fees and expenses separate from the notarial fees when traveling to perform a notarial act if the notary public and the person requesting the notarial act agree prior to the travel (A. M. 02-813-SC, Sec. 2, Rule); No fee or compensation of any kind, except those expressly prescribed and allowed herein, shall be collected or received for any notarial service (A. M. 02-813-SC, Sec. 3, Rule V); A notary public shall not require payment of any fees specified prior to the performance of a notarial act unless otherwise agreed upon (A. M. 02-813-SC, first par., Sec. 4, Rule V); Any travel fees and expenses paid to a notary public prior to the performance of a notarial act are not subject to refund if the notary public already traveled but failed to complete in whole or in part the notarial act for reasons beyond his control and without negligence on his part (A. M. 02-813-SC, second par., Sec. 4, Rule V).

was filed against him. Is Juan dela Cruz guilty of malpractice? A: Yes. Absent any showing that his notarial commission has been renewed, his act constitutes malpractice because at the time he notarized the document, his notarial commission has already expired. It is not a defense that no payment has been received. The requirement for the issuance of the commission as notary public must not be treated as a mere casual formality. In fact, Juan’s act also constitutes falsification of public document. Expired Commission A notary public may file a written application with the Executive Judge for the renewal of his commission within 45 days before the expiration thereof. A mark, image or impression of the seal of the notary public shall be attached in the application (A.M. No. 02-8-13SC, first par., Sec. 13, Rule III). NOTE: If a person is applying for a commission for the first time, what he files is a petition and not an application.

NOTE: A notary public who charges fee for notarial services shall issue a receipt registered with the Bureau of Internal revenue and keep a journal of notarial fees. He shall enter in the journal all fees charges for services rendered. A notary public shall post in a conspicuous place in his office a complete schedule of chargeable notarial fees (A. M. 02-813SC, Sec. 5, Rule V).

Failure of the notary public to file an application for the renewal of his commission Failure to file said application will result in the deletion of the name of the notary public in the register of notaries public and may only be reinstated therein after he is issued a new commission (A.M. No. 02-8-13SC, second and third pars., Sec. 13, Rule III).

TERM OF OFFICE OF A NOTARY PUBLIC Term of office of a notary public (1995 Bar Question)

NOTE: The Executive Judge shall, upon payment of the application fee, act on an application for renewal of a commission within thirty (30) days from receipt thereof. If the application is denied, the Executive Judge shall state the reasons therefor (A.M. No. 02-8-13-SC, Sec. 14, Rule III).

A notary public may perform notarial acts for a period of 2 years commencing the 1st day of January of the year in which the commissioning is made until the last day of December of the succeeding year regardless of the actual date when the application was renewed, unless earlier revoked or the notary public has resigned under the Rules on Notarial Practice and the Rules of Court (A.M. No. 02-8-13-SC, Section 11, Rule III).

POWERS AND LIMITATIONS OF A NOTARY PUBLIC Powers of a notary public A notary public is empowered to perform the following notarial acts: (JAO-CAS) 1. Acknowledgements; 2. Oaths and affirmations; 3. Jurats; 4. Signature witnessings; 5. Copy certifications; and 6. Any other act authorized by these rules (A.M. No. 02-8-13-SC, Section 1(a), Rule IV)

NOTE: The period of 2 years of a notarial commission will commence at January first regardless of when it was really granted and will end at exactly 2 years from said date of commencement up to December of the 2nd year. Ex. Atty. Antonio applied for and was given notarial commission on 12 November 2010, such term will expire on 31 December 2011 (2011 Bar Question).

Q: Juan dela Cruz was commissioned as a notary public in 2001. His friend asked him to notarize a deed of absolute sale sometime in 2004, to which he agreed free of charge. A complaint for malpractice

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Legal Ethics Notarization of a private document

their respective names were forgeries. Did Atty. Cristal-Tenorio fail to comply with the mandates of the law when she notarized the deed of sale without the complainant and his children? Does such failure warrant the revocation of her notarial commission?

Notarization converts a private document to a public instrument, making it admissible in evidence without the necessity of preliminary proof of its authenticity and due execution. A notarized document is by law entitled to full credit upon its face and it is for this reason that notaries public must observe the basic requirements in notarizing documents (Dolores dela cruz, ET AL V. Atty. Jose Dimaano, Jr., September 12, 2008, A.C. No. 7781).

A: Yes. Under Section 1(a) of Act 2103, a notary public taking the acknowledgment in a document or instrument is mandated to certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it and acknowledged that the same is his free act and deed. To "acknowledge before" means to avow; to own as genuine, to assert, to admit; and "before" means in front or preceding in space or ahead of. A party acknowledging must appear before the notary public. A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before the said notary public to attest to the contents and truth of what are stated therein. The presence of the parties to the deed making the acknowledgment will enable the notary public to verify the genuineness of the signature of the affiant. A notary public is enjoined from notarizing a fictitious or spurious document. The function of a notary public is, among others, to guard against any illegal deed (Cabanilla v. Cristal-Tenorio, A.C. No. 6139, Nov. 11, 2003).

Absence of notarization in a deed of sale The absence of notarization of the Deed of Sale would not necessarily invalidate the transaction evidenced therein. Article 1358 of the Civil Code requires that the form of a contract that transmits or extinguishes real rights over immovable property should be in a public document, yet it is also an accepted rule that the failure to observe the proper form does not render the transaction invalid. Thus, it has been uniformly held that the form required in Article 1358 is not essential to the validity or enforceability of the transaction, but required merely for convenience (Leonor Camcam v. CA; Tigno v. Aquino). Acknowledgment

Q: “Before me personally appeared this 30th of August 2010 Milagros A. Ramirez, who proved her identity to me through witnesses: 1. Rosauro S. Balana, Passport UU123456; 1-5-2010/Baguio City; and 2. Elvira N. Buela, Passport VV200345; 1-172009/Manila. “Both witnesses, of legal ages, under oath declare that: Milagros A. Ramirez is personally known to them; she is the same seller in the foregoing deed of sale; she does not have any current identification document nor can she obtain one within a reasonable time; and they are not privy to or are interested in the deed he signed.” What is the status of such a notarial acknowledgement? (2011 Bar Question)

Refers to an act in which an individual on a single occasion: 1. Appears in person before the notary public and presents an integrally complete instrument or document; NOTE: A notary public cannot perform a notarial act over a document that has missing pages, or that contains blanks that should be filled-in prior to the notarial act.

2. Is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice; and 3. Represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purposes stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity, that he has the authority to sign in that capacity (Sec. 1, Rule II, A.M. 02-8-13-SC).

A: Valid, since it is a manner of establishing the identity of the person executing the document. Jurat Refers to an act in which an individual on a single occasion: 1. Appears in person before the notary public and presents an instrument or document; 2. Is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice;

Q: Cabanilla filed a complaint against Atty. CristalTenorio with the IBP, alleging that he never appeared before her when she notarized the deed of sale of his house, and that the signatures appearing opposite UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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NOTARIAL PRACTICE 3. 4.

Signs the instrument or document in the presence of the notary; and Takes an oath or affirmation before the notary public as to such instrument or document (A.M. 02-8-13-SC, Sec. 6, Rule II).

public official authorized for the purpose. NOTE: In notarial wills, acknowledgement is required, not merely a jurat.

NOTE: A jurat is not a part of a pleading but merely evidences the fact that the affidavit was properly made. The claim or belief of Atty. Dela Rea that the presence of petitioner Gamido was not necessary for the jurat because it is not an acknowledgment is patently baseless. If this had been his belief since he was first commissioned as a notary public, then he has been making a mockery of the legal solemnity of an oath in a jurat. Notaries public and others authorized by law to administer oaths or to take acknowledgments should not take for granted the solemn duties appertaining to their offices. Such duties are dictated by public policy and are impressed with public interest (Gamido v. Bilibid Prisons Officials, G.R. No. 114829, Mar. 1, 1995).

Signature witnessing Refers to a notarial act in which an individual on a single occasion: 1. Appears in person before the notary public and presents an instrument or document; 2. Is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice; and 3. Signs the instrument or document in the presence of the notary public (A. M. No. 02-8-13-SC, Sec. 14, Rule II).

Acknowledgment v. Jurat ACKNOWLEDGMENT Act of one who has executed a deed, in going to some competent officer or court and declaring It to be his act or deed The notary public or officer taking the acknowledgement shall certify that the person acknowledging the instrument or document is known to him and he is the same person who executed it and acknowledged that the same is his free act and deed. Two-fold purpose: To authorize the deed to be given in evidence without further proof of its execution, and, to entitle it to be recorded. Where used: 1. To authenticate an agreement between two or more persons; or 2. Where the document contains a disposition of property.

E.g. The acknowledgement in a deed of lease of land.

JURAT That part of an affidavit in which the notary public or officer certifies that the instrument was sworn to before him. It is not part of a pleading but merely evidences the fact that the affidavit was properly made.

Q: Is a notary public authorized to certify the affixing of a signature by thumb or other mark on an instrument or document presented for notarization? (1995 Bar Question) A: Yes. It is also within the powers of a notary public, provided: 1. The thumb or other mark is affixed in the presence of the notary public and of two (2) disinterested and unaffected witnesses to the instrument or document; 2. Both witnesses sign their own names in addition to the thumb or other mark; 3. The notary public writes below the thumb or other mark: “thumb or other mark affixed by (name of signatory by mark) in the presence of (names and addresses of witnesses) and undersigned notary public”; and 4. The notary public notarizes the signature by thumb or other mark through an acknowledgment, jurat or signature witnessing. (Sec. 1(b), Rule IV, A.M. No. 02-8-13-SC)

Purpose: Gives the document a legal character.

Q: Is a notary public authorized to sign on behalf of a person who is physically unable to sign or make a mark on an instrument or document? (1995 Bar Question)

Where used: 1. Affidavits; 2. Certifications; 3. Whenever the person executing makes a statement of facts or attests to the truth of an event, under oath. E.g. An affidavit subscribed before a notary public or

A: Yes. It likewise falls within the powers of a notary public, provided: 1. The notary public is directed by the person unable to sign or make a mark to sign on his behalf; 2. The signature of the notary public is affixed in the presence of 2 disinterested and unaffected witnesses to the instrument or document;

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Legal Ethics 3. 4.

5.

Both witnesses sign their own names; The notary public writes below his signature: “Signature affixed by notary in the presence of (names and addresses of person and 2 witnesses)”; and The notary public notarizes his signature by acknowledgment or jurat (A.M. 02-8-13-SC, Sec. 1(c), Rule IV).

Q: Engineer Cynthia de la Cruz Catalya filed an application for building permit in connection with the renovation of a building situated on a lot owned by her brother Rolando de la Cruz. One of the documents required in the processing of the application was an affidavit to be executed by the lot owner. Since Rolando de la Cruz was a resident abroad, an affidavit was prepared wherein it was made to appear that he was a resident of Leyte. Atty. Francisco Villamor notarized the purported affidavit. According to him, a Chinese mestizo appeared in his law office one time, requesting that his affidavit be notarized. Said person declared that he was Rolando de la Cruz. Atty. Villamor then asked for the production of his residence certificate, but he said, he did not bother to bring the same along with him anymore as, he has already indicated his serial number, in the jurat portion together with the date of issue and place of issue. Did Atty. Francisco Villamor commit a violation of notarial law?

Copy certification Refers to a notarial act in which a notary public: 1. Is presented with an instrument or document that is neither a vital record, a public record, nor publicly recordable; 2. Copies or supervises the copying of the instrument or document; 3. Compares the instrument or document with the copy; and 4. Determines that the copy is accurate and complete (A.M. 02-8-13-SC, Sec. 4, Rule II).

A: Yes. It is the duty of the notarial officer to demand that the document presented to him for notarization should be signed in his presence. By his admission, the affidavit was already signed by the purported affiant at the time it was presented to him for notarization. Atty. Villamor thus failed to heed his duty as a notary public to demand that the document for notarization be signed in his presence (Traya Jr. v. Villamor, A.C. No. 4595,Feb. 6, 2004).

NOTE: The document copied must be an original document. It cannot be a copy itself.

Notarial certificate Refers to the part of, or attachment to a notarized instrument or document that is completed by the notary public which bears the notary's signature and seal, and states the facts attested to by the notary public in a particular notarization as provided for by the Rules on Notarial Practice (A. M. No. 02-8-13, Sec. 8, Rule II).

Q: During their lifetime, the Spouses Villanueva acquired several parcels of land. They were survived by their 5 children: Simeona, Susana, Maria, Alfonso, and Florencia. Alfonso executed an Affidavit of Adjudication stating that as “the only surviving son and sole heir” of the spouses, he was adjudicating himself a parcel of land. Thereafter, he executed a Deed of Absolute Sale, conveying the property to Adriano Villanueva. Atty. Salud Beradio appeared as notary public on both the affidavit of adjudication and the deed of sale. Atty. Beradio knew of the falsity of Alfonso’s statement. Florencia and descendants of the other children of the spouses were still alive at the time of execution of both documents. Was there a failure to discharge properly the duties of a notary public?

NOTE: “Loose notarial certificate” refers to a notarial certificate that is attached to a notarized instrument or document.

Limitations to the performance of a notarial act A person shall not perform a notarial act if the person involved as signatory to the instrument or document is: a. Not in the notary's presence personally at the time of the notarization; and (A.M. No. 02-8-13SC, Sec. 2(b)(1), RuleIV). b. Not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice (A.M. No. 02-8-13-SC, Sec.2(b)(2), Rule IV) c. The document is blank or incomplete; (A.M. 02-813-SC, Sec.6 (a) Rule IV) d. An instrument or document is without appropriate notarial certification (A.M. 02-8-13SC, Sec. 6, Rule IV). UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

A: Yes. Atty. Beradio’s conduct breached the Code of Professional Responsibility, which requires lawyers to obey the laws of the land and promote respect for the law and legal processes as well as Rule 1.01 of the Code which proscribes lawyers from engaging in unlawful, dishonest, immoral, or deceitful conduct. She herself admitted that she knew of the falsity of Alfonso’s statement that he was the “sole heir” of the spouses. She therefore notarized a document while

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NOTARIAL PRACTICE fully aware that it contained a material falsehood. The affidavit of adjudication is premised on this very assertion. By this instrument, Alfonso claimed a portion of his parents’ estate all to himself, to the exclusion of his co-heirs. Shortly afterwards, Atty. Beradio notarized the deed of sale, knowing that the deed took basis from the unlawful affidavit of adjudication (Heirs of the Late Spouses Lucas v .Atty. Beradio, A.C. No. 6270, Jan. 22, 2007).

on Notarial Practice. NOTE: Improper instrument/document is a blank or incomplete instrument or an instrument or document without appropriate notarial certification (A.M. No. 02-8-13SC, Sec. 6, Rule V).

Affirmation or oath Refers to an act in which an individual on a single occasion: 1. Appears in person before the notary public; 2. Is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice; and 3. Avows under penalty of law to the whole truth of the contents of the instrument or document (Sec. 2,Rule II, A.M. No. 02-8-13-SC).

NOTE: If the notary public admited that he has personal knowledge of a false statement contained in the instrument to be notarized yet proceeded to affix his or her notarial seal on it, the court must not hesitate to discipline the notary public accordingly as the circumstances of the case may dictate. Otherwise, the integrity and sanctity of the notarization process may be undermined and public confidence on notarial documents diminished (Ibid).

Disqualification of a notary public to perform a notarial act

REPUBLIC ACT NO. 9406 MARCH 23, 2007

A notary public is disqualified to perform notarial act when he: 1. Is a party to the instrument or document that is to be notarized; 2. Will receive, as a direct or indirect result, any commission, fee, advantage, right, title, interest, cash, property, or other consideration, except as provided by the Rules on Notarial Practice and by law; or 3. Is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree (A.M. No. 02-8-13-SC, Sec. 3, Rule IV).

AN ACT REORGANIZING AND STRENGTHENING THE PUBLIC ATTORNEY'S OFFICE, AMENDING FOR THE PURPOSE PERTINENT PROVISIONS OF EXECUTIVE ORDER NO. 292, OTHERWISE KNOWN AS THE "ADMINISTRATIVE CODE OF 1987", AS AMENDED, GRANTING SPECIAL ALLOWANCE TO PAO OFFICIALS AND LAWYERS, AND PROVIDING FUNDS THEREFOR Officers allowed to administer oaths 1. 2. 3.

NOTE: The function would be defeated if the notary public is one of the signatories to the instrument. For then, he would be interested in sustaining the validity thereof as it directly involves himself and the validity of his own act. It would place him in an inconsistent position, and the very purpose of the acknowledgment, which is to minimize fraud, would be thwarted (Villarin v. Sabate, A.C. No. 3224,Feb. 9, 2000).

4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

Instances when notary public may refuse to notarize 1.

2.

3.

4.

The notary knows or has good reason to believe that the notarial act or transaction is unlawful or immoral; The signatory shows a demeanor which engenders in the mind of the notary public reasonable doubt as to the former's knowledge of the consequences of the transaction requiring a notarial act; In the notary's judgment, the signatory is not acting of his or her own free will; (A.M. No. 02-813-SC, Sec.4, Rule V) or If the document or instrument to be notarized is considered as an improper document by the Rules

14. 15. 16.

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President; Vice-President; Members and Secretaries of both Houses of the Congress; Members of the Judiciary; Secretaries of Departments; Provincial governors and lieutenant-governors; City mayors; Municipal mayors; Bureau directors; Regional directors; Clerk of courts; Registrars of deeds; Other civilian officers in the public service of the government of the Philippines whose appointments are vested in the President and are subject to confirmation by the Commission on Appointments; All other constitutional officers; PAO lawyers in connection with the performance of duty; and Notaries public (Sec. 41)

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics Duty to administer oaths

Inspection of a notarial register by private persons

Officers authorized to administer oaths, with the exception of notaries public, municipal judges and clerks of court, are not obliged to administer oaths or execute certificates save in matters of official business or in relation to their functions as such; and with the exception of notaries public, the officer performing the service in those matters shall charge no fee, unless specifically authorized by law (Section 42).

1. 2. 3.

4.

5. NOTE: P.A.O. Lawyers now have the authority to administer oaths, provided it is in connection with the performance of their duties.

6.

The fiscal or the state prosecutor has the authority to administer oaths (RA No. 5180, as amended by P.D. 911).

The inspection is made in the notary’s presence; During regular business hours; The person's identity is personally known to the notary public or proven through competent evidence of identity as defined in these Rules; The person affixes a signature and thumb or other mark or other recognized identifier, in the notarial register in a separate, dated entry; The person specifies the month, year, type of instrument or document, and name of the principal in the notarial act or acts sought; and The person is shown only the entry or entries specified by him (Sec.4 (a), Rule VI,A.M. No. 02-813-SC).

NOTARIAL REGISTER

Examination of notarial register by law enforcement officer

A notary public shall keep, maintain, protect and provide for lawful inspection as provided in these Rules, a chronological official notarial register of notarial acts consisting of a permanently bound book with numbered pages.

The notarial register may be examined by a law enforcement officer in the course of an official investigation or by virtue of a court order (A. M. No. 02-8-13-SC, Sec. 4(b), Rule VI). Rules in case of loss, destruction or damage of notarial register

The register shall be kept in books to be furnished by the Solicitor General to any notary public upon request and upon payment of the cost thereof. The register shall be duly paged, and on the first page, the Solicitor General shall certify the number of pages of which the book consists (A.M. No. 02-8-13-SC, Sec. 1(a), RuleVI).

1.

NOTE: Failure of the notary to make the proper entry or entries in his notarial register touching his notarial acts in the manner required by law is a ground for revocation of his commission. (Father Ranhilio C. Aquino Et. Al., s. Complainants, Vs. Atty. Edwin Pascua, Respondent. A.C. No. 5095, November 28, 2007, En Banc)

2. Signing or affixing a thumbmark in the notarial register At the time of notarization, the notary's notarial register shall be signed or a thumb or other mark affixed by each: 1. Principal; 2. Credible witness swearing or affirming to the identity of a principal; and 3. Witness to a signature by thumb or other mark, or to a signing by the notary public on behalf of a person physically unable to sign (A.M. No. 02-813-SC, Sec. 3,Rule VI).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

In case the notarial register is stolen, lost, destroyed, damaged, or otherwise rendered unusable or illegible as a record of notarial acts, the notary public shall, within ten (10) days after informing the appropriate law enforcement agency in the case of theft or vandalism, notify the Executive Judge by any means providing a proper receipt or acknowledgment, including registered mail and also provide a copy or number of any pertinent police report. Upon revocation or expiration of a notarial commission, or death of the notary public, the notarial register and notarial records shall immediately be delivered to the office of the Executive Judge (Sec. 5, Rule VI, A. M. No. 02-8-13SC, Sec. 5, Rule VI).

The notary public may refuse the request of inspection for register of deeds If the notary public has a reasonable ground to believe that a person has a criminal intent or wrongful motive in requesting information from the notarial register, the notary shall deny access to any entry or entries therein (A. M. No. 02-8-13-SC, Sec. 4(c), Rule VI).

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NOTARIAL PRACTICE public should maintain a regular place of work or business within the city or province where he is commissioned. The SC evidently wants to eradicate the practice of “fly by night” notaries public who notarized documents in “improvised” offices.

JURISDICTION OF NOTARY PUBLIC AND PLACE OF NOTARIZATION Jurisdiction of notary public A notary public may perform notarial acts in any place within the territorial jurisdiction of the commissioning court.

REVOCATION OF COMMISSION Who may revoke the notarial commission

Under the Notarial Law, the jurisdiction of a notary public is co-extensive with the province for which he was commissioned; and for the notary public in the city of Manila, the jurisdiction is co-extensive with said city. Circular 8 of 1985, however, clarified further that the notary public may be commissioned for the same term only by one court within the Metro Manila region.

1.

2.

The Executive Judge of the RTC who issued the commission on any ground on which an application for commission may be denied (A.M. No. 02-8-13-SC,Sec. 1, Rule XI); or By the Supreme Court itself in the exercise of its general supervisory powers over lawyer.

Grounds for Revocation

“Regular place of work or business” of a notary public meaning

The executive Judge shall revoke a notarial commission for any ground on which an application for a commission may be denied. In addition, the Executive Judge may revoke the commission of, or impose appropriate administrative sanctions upon, any notary public who: 1. Fails to keep a notarial register; 2. Fails to make the proper entry or entries in his notarial register concerning his notarial acts; 3. Fails to send the copy of the entries to the Executive Judge within the first ten (10) days of the month following; 4. Fails to affix to acknowledgments the date of expiration of his commission; 5. Fails to submit his notarial register, when filled, to the Executive Judge; 6. Fails to make his report, within a reasonable time, to the Executive Judge concerning the performance of his duties, as may be required by the judge; 7. Fails to require the presence of a principal at the time of the notarial act;

The regular place of work or business refers to a stationary office in the city or province wherein the notary public renders legal and notarial services (Sec. 11, Rule II, 2004 Rules on Notarial Practice). Rules with regard to jurisdiction of notary public GR: A notary public shall not perform a notarial act outside his jurisdiction and his regular place of work or business. NOTE: Outside the place of his commission, a notary public is bereft of power to perform any notarial act (Guerrero v. Bihis, 2007).

XPNs: A notarial act may be performed at the request of the parties in the following sites, other than his regular place of work or business, located within his territorial jurisdiction: 1. Public offices, convention halls, and similar places where oaths of office may be administered; 2. Public function areas in hotels and similar places for the signing of instruments or documents requiring notarization; 3. Hospitals and other medical institutions where a party to an instrument or document is confined for treatment 4. Any place where a party to an instrument or document requiring notarization is under detention (A. M. No. 02-8-13-SC, Sec. 2, Rule IV). 5. Such other places as may be dictated because of emergency.

NOTE: "Principal" refers to a person appearing before the notary public whose act is the subject of notarization.

8. Fails to identify a principal on the basis of personal knowledge or competent evidence; 9. Executes a false or incomplete certificate under Section 5, Rule IV; 10. Knowingly performs or fails to perform any other act prohibited or mandated by these Rules; and 11. Commits any other dereliction or act which in the judgment of the Executive Judge constitutes good cause for revocation of commission or imposition of administrative sanction (Sec. 1, Rule XI,Rule on Notarial Practice).

NOTE: It is improper for a notary public to notarize documents in sidewalk since it is now required that a notary

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Legal Ethics the old Notarial Law. As much could be said of his failure to demand the exhibition of the residence certificates of notarial witnesses. Defects in the observance of the solemnities prescribed by law render the entire will invalid (Manuel Lee v. Atty. Regino Tamabago, A.C. No. 5281, Feb. 12, 2008).

NOTE: Functions of notary public – violations: suspension as notary not for the practice of law (Villarin v. Sabate, A.C. No. 3224,Feb. 9, 2000).

COMPETENT EVIDENCE OF IDENTITY Competent evidence of identity

SANCTIONS

Competent evidence of identity refers to the identification of an individual based on the following: 1.

2.

Punishable acts under the 2004 Rules on Notarial Practice

At least one current identification document issued by an official agency bearing the photograph and signature of the individual such as but not limited to those enumerated in the law. The oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification. (Amendment to Sec. 12 (a), Rule II of the 2004 Rules on Notarial Practice, Feb. 19, 2008).

The Executive Judge shall cause the prosecution of any person who knowingly: 1. 2.

3.

NOTE: Notarizing documents without the requisite commission therefore constitutes malpractice, if not the crime of falsification of public documents (St. Louis Laboratory High School Faculty And Staff V. Dela Cruz , A.C. No. 6010. August 28, 2006).

NOTE: Competent evidence of identity is not required in cases where the affiant is personally known to the Notary Public (Amora, Jr. v. Comelec, G.R. No.192280, Jan. 25, 2011).

Q: Atty. Regino Tamabago notarized a last will and testament under which, the decedent supposedly bequeathed his entire estate to his wife, save for a parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, half siblings of Manuel Lee, the complainant. The will was purportedly executed and acknowledged before respondent on June 30, 1965. However, the residence certificate of the testator noted in the acknowledgment of the will was dated January 5, 1962. There is also absence of notation of the residence certificates of the purported witnesses. Did Atty. Regino Tamabago violate any of the duties of a notary public? A: Atty. Tamabago, as notary public, evidently failed in the performance of the elementary duties of his office. There is absence of a notation of the residence certificates of the notarial witnesses in the will in the acknowledgment. Further, the notation of the testator’s old residence certificate in the same acknowledgment was a clear breach of the law. The Notarial Law then in force required the exhibition of the residence certificate upon notarization of a document or instrument. By having allowed decedent to exhibit an expired residence certificate, Atty. Tamabago failed to comply with the requirements of UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Acts or otherwise impersonates a notary public; Obtains, conceals, defaces, or destroys the seal, notarial register, or official records of a notary public; and Solicits, coerces, or in any way influences a notary public to commit official misconduct.(Rule on Notarial Practice, Sec. 1, Rule XII).

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CANONS OF PROFESSIONAL ETHICS CANONS OF PROFESSIONAL ETHICS

A: Yes. In doing so, however, he should scrupulously avoid any suggestion calculated to induce the witness to suppress or deviate from the truth, or in any degree to affect his free and untrammeled conduct when appearing at the trial or on the witness stand (Canon 39, CPE).

The Canons of Professional Ethics (CPE) was framed by the American Bar Association in 1908 and were adopted in the Philippines in 1917 and subsequently revised in 1946. It is one of the sources or the main basis of our legal ethics at the present which is the Code of Professional Responsibility (CPR). While the CPE is superseded by the CPR, the CPE continues to be an invaluable source of knowledge and understanding of legal ethics.

Q: Mr. A disclosed to his lawyer that he had been bribing one of the court officials to destroy the evidence of the other party to tilt the disposition of the case in his favor. If you are Mr. A’s lawyer, what will you do?

NOTE: Most of the provisions of the Code of Professional Ethics are incorporated in the Code of Professional Responsibility. Only those topics not considered incorporated are included to prevent redundancy.

A: When a lawyer discovers that some fraud or deception has been practiced, upon the court or party, he should endeavor to rectify it; at first by advising his client, and should endeavor to rectify it and if his client refuses to forego the advantage thus unjustly gained, he should promptly inform the injured person or his counsel, so that they may take appropriate steps. (Canon 41, CPE). Furthermore, if the client failed or refuses to rectify the same, he shall terminate the relationship with such client in accordance with the Rules of Court (Canon 19.02, CPR)

Duty of the bar in the selection of judges It is the duty of the bar to endeavor to prevent political considerations from outweighing judicial fitness in the selection of judges. It should strive to have elevated thereto only those willing to forego other employments whether of a business, political or other character, which may embarrass their free and fair consideration of questions before them for decision (Canon 2, CPE). Q: Can a lawyer stipulate with the client that a portion of the latter’s interest in the property subject of the litigation be conveyed to the former as payment for his services? A: No. The same is prohibited both by the CPE and the Civil Code. The CPE provides that a lawyer should not purchase any interest in the subject matter of the litigation which he is conducting. Likewise, the Civil Code provides that prosecuting attorneys connected with the administration of justice cannot acquire by purchase properties in litigation to which they exercise their respective functions (Canon 10 CPE; Art. 1491, NCC). Q: Is it proper for a lawyer to write articles in a newspaper and the like for publication? A: A lawyer may with propriety write articles for publications in which he gives information upon the law; but he could not accept employment from such publication to advice inquiries in respect to their individual rights (Canon 40, CPE). Q: May a lawyer interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party?

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JUDICIAL ETHICS JUDICIAL ETHICS Judicial ethics The branch of moral science which treats of the right and proper conduct to be observed by all judges in trying and deciding controversies brought before them for adjudication which conduct must be demonstrative of impartiality, integrity, competence, independence and freedom from improprieties. This freedom from improprieties must be observed in both the public and private life of a judge – being the visible representation of the law.

2.

Proper judicial conduct Judges and justices must conduct themselves as to be beyond reproach and suspicion and be free from appearance of impropriety in their personal behavior not only in the discharge of official duties but also in their everyday lives.

A judge is a public officer who, by virtue of his office, is clothed with judicial authority; A public officer lawfully appointed to decide litigated questions in accordance with law (People v. Manantan, G.R. No. L14129, Aug. 30, 1962).

Q: In several policy addresses extensively covered by media since his appointment on December 21, 2005, Chief Justice Artemio V. Panganiban vowed to leave a judiciary characterized by "four Ins" and to focus in solving the "four ACID" problems that corrode the administration of justice in our country. Explain this "four Ins" and "four ACID" problems (2006 Bar Question).

NOTE: This refers to persons only. There may be a judge without a court.

De jure judge v. De facto judge De Jure judge One who exercises the office of a judge as a matter of right, fully vested with all the powers and functions conceded to him under the law (Luna v. Rodriguez, G.R. No. L13744, Nov. 29, 1918).

De Facto judge An officer who is not fully vested with all the powers and duties conceded to judges but, one who exercises the office of judge under some color of right. He has the reputation of the officer he assumes to be, yet he has some defect in his right to exercise judicial functions at the particular time (Luna v. Rodriguez, G.R. No. L13744, Nov. 29, 1918).

A: Chief Justice Panganiban vowed to lead a judiciary characterized by four Ins: Independence, Integrity, Industry and Intelligence; one that is morally courageous to stand its ground against the onslaughts of influence, interference, indifference and insolence; and that is impervious to the plague of ships - kinship, relationship, friendship and fellowship. He identified four ACID problems that corrode justice in our country; namely, (1) limited Access to justice by the poor; (2) Corruption; (3) Incompetence; and (4) Delay in the delivery of quality judgments. NOTE: Then Chief Justice Panganiban also asked for the employees of the Judiciary for three things encapsulated by the Code DHL: Dedication to duty, Honesty in every way, and full loyalty to the judiciary and to the Supreme Court

NOTE: There cannot be a de facto judge when there is a de jure judge in the actual performance of the duties of the office. Moreover, one cannot be actually acting under any color of right when he has ceased to be a judge and has actually vacated the office by the acceptance of another office and by actually entering upon the duties of the other office (Luna v. Rodriguez and De Los Angeles, G.R. No. L13744, Nov. 29, 1918).

Q: The Chief Justice also said that the judiciary must "safeguard the liberty" and "nurture the prosperity" of our people. Explain this philosophy. Cite Decisions of the Supreme Court implementing each of these twin beacons of the Chief Justice (2006 Bar Question)

Proper judicial deportment 1.

A: The twin beacons of LIBERTY and PROSPERITY constitute the core judicial philosophy of Chief Justice Panganiban. He “advances the view that liberty must include the freedoms that prosperity allows. In the same manner, prosperity must include liberty,

Attitude toward counsel – He must be courteous especially to the young and inexperienced, should not interrupt in their UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

arguments except to clarify his minds as to their positions, must not be tempted to an unnecessary display of learning or premature judgment, may criticize and correct unprofessional conduct of a lawyer but not in an insulting manner. Attitude toward litigants and witnesses– He must be considerate, courteous and civil, must not utter intemperate language during the hearing of a case.

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SOURCES especially the liberty to strive for the ‘good life’ according to a person’s conception”. He further said that the Judiciary can contribute to the advancement of liberty and prosperity by adopting two standards of judicial review: “that in litigations involving civil liberties, the scales should weigh heavily against the government and in favor of the people. However, in conflicts affecting prosperity, development and the economy, deference must be accorded to the political branches of the government.”

THE NEW CODE OF JUDICIAL CONDUCT FOR THE PHILIPPINE JUDICIARY (BANGALORE DRAFT) (A.M. NO. 03-05-01) The New Code of Judicial Conduct (NCJC) for the Philippine Judiciary which took effect on June 1, 2004 supersedes the Canons of Judicial Ethics and the Code of Judicial Conduct. Provided, however, that in case of deficiency or absence of specific provisions in this New Code, the Canons of Judicial Ethics and Code of Judicial Conduct shall be applicable in a suppletory character (2007, 2009 Bar Questions).

In the case of Lumanlaw v. Peralta, GR No. 164953, February 13, 2006, a decision penned by the Chief Justice himself, the Court ordered the release of a detainee who had been imprisoned at the Manila City Jail for almost two years but had not yet been arraigned.

This was adopted from the universal declaration of standards for ethical conduct embodied in the Bangalore Draft as revised at the Round Table Conference of Chief Justices at the Hague.

In the case of Republic, et al. v. Judge Gingoyon and Philippine International Air Terminals Co., Inc., GR No. 166429, February 1, 2006, the Court upheld PIATCO’s right to be paid Php300 billion before the Government can take over the Ninoy Aquino International Airport Passenger Terminal III facilities.

The purpose of the New Code of Judicial Conduct for the Philippine Judiciary is to update and correlate the code of judicial conduct and canons of judicial ethics adopted for the Philippines, and also to stress the Philippines’ solidarity with the universal clamor for a universal code of judicial ethics (See aforementioned "four Ins" and "four ACID" problems by Chief Justice Artemio V. Panganiban).

SOURCES The two sources of judicial ethics a. b.

NOTE: The New Code contains 6 Canons and 44 Rules.

New Code of Judicial Conduct for the Philippine Judiciary (Bangalore Draft); Code of Judicial Conduct

Q: One of the foundations of the Bangalore Draft of the Code of Judicial Conduct is the importance in a modern democratic society of what? (2011 Bar Question)

New Code of Judicial Conduct for the Philippine Judiciary v. Code of Judicial Conduct NEW CODE OF JUDICIAL CONDUCT FOR THE PHILIPPINE JUDICIARY Focuses on the institutional and personal independence of judicial officers Contains eight norms of conduct that judges “shall follow”

A: Public confidence in its judicial system and in the moral authority and integrity of its judiciary.

CODE OF JUDICIAL CONDUCT

The six (6) canons under the New Code of Judicial Conduct for the Philippine Judiciary

Concerned primarily with the institutional independence of the judiciary. Contained three guidelines explaining what judges “should do” * Canon 1 of the 1989 Code created a weaker mandate.

1. 2. 3. 4. 5. 6.

Independence Integrity Impartiality Propriety Equality Competence and Diligence

Duties of a magistrate that will bolster the public’s confidence to our judicial system 1. Duty to be above reproach and to appear above reproach (NCJC, Sec.1, Canon 2) 2. Duty to be impartial (NCJC, Canon 3) 3. Duty to avoid improprieties and appearance of improprieties (NCJC, Sec. 1, Canon 4)

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JUDICIAL ETHICS 4. Duty of Financial Transparency and duty to avoid financial conflicts of interest (NCJC, Sec. 7, Canon 4) 5. Duty to be efficient, fair and prompt (NCJC, Sec. 5, Canon 6) 6. Duty to be free from favor, bias, or prejudice (NCJC, Sec. 1, Canon 3).

Judges must decide cases and resolve matters with dispatch because any delay in the administration of justice deprives litigants of their right to a speedy disposition of their case and undermines the people’s faith in the judiciary. Indeed, justice delayed is justice denied (Angeliav. Grageda, A.M. No. RTJ-10-2220, Feb. 7, 2011).

CODE OF JUDICIAL CONDUCT (1989) Rule 1.02, Canon 1 A judge should administer justice impartially and without delay.

Applicability This code applies suppletorily. CANON 1 A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY.

Rule 1.02, Canon 1 A judge should administer justice impartially and without delay.

Rule 1.01, Canon 1 A judge should be the embodiment of competence, integrity and independence.

Rule 1.03, Canon 1 A judge should be vigilant against any attempt to subvert the independence of the judiciary and should forthwith resist any pressure from whatever source intended to influence the performance of official functions.

Q: A complaint was filed against Judge Grageda for the delay in the resolution of motions relative to Civil Case No. 54-2001, entitled Pio Angelia v. Arnold Oghayan. Plaintiff Angelia averred that the case was filed way back on August 8, 2001. After numerous postponements, pre-trial was finally set on December 6, 2007. On December 20, 2007, counsel for complainant received an order dated December 6, 2007 dismissing the case for failure to prosecute. On December 28, 2007, Angelia filed a motion for reconsideration reasoning out that the failure to prosecute could not be attributed to him. On July 28, 2008, he filed his Urgent Motion for the Early Resolution of said December 2007 Motion for Reconsideration. He claimed that despite the lapse of a considerably long period of time, no action was taken by Judge Grageda. Is respondent Judge Gragela GUILTY of undue delay in resolving a motion in violation of Rule 1.02, Canon 1 and Rule 3.05, Canon 3 of the Code of Judicial Conduct?

CANON 2 A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITES. Rule 2.01, Canon 2 A judge should so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary. Q: Judge Canoy was charged with several counts of gross ignorance of the law and/or procedures, grave abuse of authority, and appearance of impropriety (CJC, Canon 2) for granting bail to Melgazo, the accused in a criminal case, without any application or petition for the grant of bail filed before his court or any court. He verbally ordered the branch clerk of court to accept the cash deposit as bail, to earmark an official receipt for the cash deposit, and to date it the following day. He did not require Melgazo to sign a written undertaking containing the conditions of the bail under Sec. 2, Rule 114 to be complied with by Melgazo. Thus, Judge Canoy ordered the police escorts to release Melgazo without any written order of release. Should respondent Judge Canoy be held administratively liable for violating of Supreme Court rules, directives and circulars under Sec. 9, Rule 140, RRC (as amended by A.M. No. 01-8-10-SC)?

A: Yes. Failure to decide cases and other matters within the reglementary period constitutes gross inefficiency and warrants the imposition of administrative sanction against the erring magistrate. Delay in resolving motions and incidents pending before a judge within the reglementary period of ninety (90) days fixed by the Constitution and the law is not excusable and constitutes gross inefficiency. As a trial judge, Judge Grageda was a frontline official of the judiciary and should have at all times acted with efficiency and with probity.

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SOURCES the ground that by using the letter head indicating his position as the Presiding Judge he was trying to use the prestige of his judicial office for his own personal interest. Is the judge liable?

A: Yes. Granting of bail without any application or petition to grant bail is a clear deviation from the procedure laid down in Sec. 17 of Rule 114. As regards the insistence of Judge Canoy that such may be considered as “constructive bail,” there is no such species of bail under the Rules. Despite the noblest of reasons, the Rules of Court may not be ignored at will and at random to the prejudice of the rights of another. Rules of procedure are intended to ensure the orderly administration of justice and the protection of substantive rights in judicial and extrajudicial proceedings. In this case, the reason of Judge Canoy is hardly persuasive enough to disregard the Rules (Pantilo III v. Canoy, A.M. No. RTJ-11-2262, Feb. 9, 2011)

A: Yes. While the use of the title is an official designation as well as an honor that an incumbent has earned, a line still has to be drawn based on the circumstances of the use of the appellation. While the title can be used for social and other identification purposes, it cannot be used with the intent to use the prestige of his judicial office to gainfully advance his personal, family or other pecuniary interests. Nor can the prestige of a judicial office be used or lent to advance the private interests of others, or to convey or permit others to convey the impression that they are in a special position to influence the judge (CJC, Canon 2, Rule 2.03). To do any of these is to cross into the prohibited field of impropriety (Belen v. Belen,A.M. No. RTJ-08-2139, Aug. 9, 2010).

Rule 2.02, Canon 2 A judge should not seek publicity for personal vainglory.

CANON 3 A JUDGE SHOULD PERFOM OFFICIAL DUTIES HONESTLY, AND WITH IMPARTIALITY AND DILIGENCE.

Rule 2.03, Canon 2 A judge shall not allow family, social, or other relationships to influence judicial conduct or judgment.

Rule 3.01, Canon 3 A judge shall be faithful to the law and maintain professional competence.

Rule 2.04, Canon 2 A judge should refrain from influencing in any manner the outcome of litigation or dispute pending before another court or administrative agency.

Q: Plaintiff Conquilla was charged for direct assault after respondent Judge B conducted a preliminary investigation and found probable cause to hold the complainant for trial for the said crime. Complainant then filed an administrative complaint, alleging that under A.M. No. 05-08-[2]6-SC, first level court judges no longer have the authority to conduct preliminary investigations. Is the respondent judge guilty of gross ignorance of the law?

The prestige of judicial office shall not be used or lent to advance the private interests of others, nor convey the impression that they are in a special position to influence the judge. Q: Judge Belen was charged with grave abuse of authority and conduct unbecoming a judge. He filed a complaint for Estafa against complainant’s father. However such was dismissed by the city prosecutor for lack of probable cause. After the dismissal of the complaint, Judge Belen started harassing and threatening the complainant with filing of several cases against the latter. He also wrote using his personal stationary, several letters addressed to certain local government authorities and employees, requesting information on complainant’s piggery and poultry business and advising them of the alleged violations by the complainant of the National Building Code and certain environmental laws. An administrative complaint was filed against the judge for violation of the New Code of Judicial Conduct on

A: Yes. When a law or a rule is basic, judges owe it to their office to simply apply the law. Anything less is gross ignorance of the law. Judges should exhibit more than just a cursory acquaintance with the statutes and procedural rules, and should be diligent in keeping abreast with developments in law and jurisprudence. It was therefore incumbent upon respondent judge to forward the records of the case to the Office of the Provincial Prosecutor for preliminary investigation, instead of conducting the preliminary investigation himself upon amendment of the law stripping the power of first level court judges to conduct preliminary

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JUDICIAL ETHICS investigation (Conquilla v. Bernando, A.M. No.MTJ-091737, Feb. 9, 2011).

by law. Rules prescribing the time within which certain acts must be done are indispensable to prevent needless delays in the orderly and speedy disposition of cases. Thus, the 90-day period is mandatory (Re: Cases Submitted for Decision Before Hon. Teresito A. Andoy, A.M. No. 09-9-163-MTC, May 6, 2010).

Rule 3.02, Canon 3 In every case, a judge shall endeavor diligently to ascertain the facts and the applicable law unswayed by partisan interests, public opinion or fear of criticism.

NOTE: The Court has repeatedly emphasized the need for judges to resolve their cases with dispatch. Delay does not only constitute a serious violation of the parties’ constitutional right to speedy disposition of cases, it also erodes the faith and confidence of the people in the judiciary, lowers its standards, and brings it into disrepute (Office of the Court Administrator v. Quilatan, A.M. No. MTJ-09-1745, Sept. 27, 2010).

A judge is expected to decide cases only on the basis of the applicable law on the matter, not on any other extraneous factors, such as public opinion, personal convictions and partisan interests (Lapena, 2009). Rule 3.03, Canon 3 A judge shall maintain order and proper decorum in the court.

Rule 3.06, Canon 3 While a judge may, to promote justice, prevent waste of time or clear up some obscurity, properly intervene in the presentation of evidence during the trial, it should always be borne in mind that undue interference may prevent the proper presentation of the cause or the ascertainment of truth.

Rule 3.04, Canon 3 A judge should be patient, attentive, and courteous to lawyers, especially the inexperienced, to litigants, witnesses, and others appearing before the court. A judge should avoid unconsciously falling into the attitude of mind that the litigants are made for the courts, instead of the courts for the litigants.

Rule 3.07, Canon 3 A judge should abstain from making public comments on any pending or impending case and should require similar restraint on the part of court personnel.

Q: How would you characterize the relationship between the judge and a lawyer? Explain (1996 Bar Question)

ADMINISTRATIVE RESPONSIBILITIES Rule 3.08, Canon 3 A judge should diligently discharge administrative responsibilities, maintain professional competence in court management, and facilitate the performance of the administrative functions or other judges and court personnel.

A: The Code of Professional Responsibility requires lawyers to observe and maintain respect for judicial officers (CPR, Canon 11). On the other hand, the Code of Judicial Conduct requires judges to be patient, attentive and courteous to lawyers (CJC, Rule 3.03). In a word, lawyers and judges owe each other mutual respect and courtesy. Rule 3.05, Canon 3 A judge shall dispose of the court’s business promptly and decide cases within the required periods.

Rule 3.09, Canon 3 A judge should organize and supervise the court personnel to ensure the prompt and efficient dispatch of business, and require at all times the observance of high standards of public service and fidelity.

Article VIII, Section 15(1) of the 1987Constitution mandates lower court judges to decide a case within the reglementary period of 90 days. The Code of Judicial Conduct under Rule 3.05 of Canon 3 likewise enunciates that judges should administer justice without delay and directs every judge to dispose of the court’s business promptly within the period prescribed UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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SOURCES judge’s impartiality might reasonably be questioned. Among the instances for the disqualification of a judge is that he is related to a party litigant within the sixth degree or to counsel within the fourth degree of consanguinity or affinity. But this refers to counsel of the parties. As amicus, he represents no party to the case. There is, therefore, no ground to fear the loss of the judge’s impartiality in this case if his son is appointed amicus curiae.

Rule 3.10, Canon 3 A judge should take or initiate appropriate disciplinary measures against lawyers or court personnel for unprofessional conduct of which the judge may have become aware.

DISQUALIFICATION REMITTAL OF DISQUALIFICATION Rule 3.12, Canon 3 A judge should take no part in a proceeding where the judge’s impartiality might reasonably be questioned. These cases include among others, proceedings where: a. The judge has personal knowledge of disputed evidentiary facts concerning the proceeding; b. The judge served as executor, administrator, guardian, trustee or lawyer in the case or matter in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein; c. The judge’s ruling in a lower court is the subject of review; d. The judge is related by consanguinity or affinity to a party litigant within the sixth degree or to counsel within the fourth degree; e. The judge knows the judge’s spouse or child has a financial interest, as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy or in a party to the proceeding, f. Any other interest that could be substantially affected by the outcome of the proceeding.

Rule 3.13, Canon 3 A judge disqualified by the terms of Rule 3.12 may, instead of withdrawing from the proceeding, disclose on the record the basis of disqualification. If, based on such disclosure the parties and lawyers independently of the judge’s participation, all agree in writing that the reason for the inhibition is immaterial or insubstantial, the judge may then participate in the proceeding. The agreement signed by the parties, shall be incorporated in the record of the proceeding.

CANON 4 A JUDGE MAY, WITH DUE REGARD TO OFFICIAL DUTIES, ENGAGE IN ACTIVITIES TO IMPROVE THE LAW, THE LEGAL SYSTEM AND THE ADMINISTRATION OF JUSTICE.

Rule 4.01, Canon 4 A judge may, to the extent that the following activities do not impair the performance of judicial duties or cast doubt on the judge’s impartiality: a. Speak, write, lecture, teach of participate in activities concerning the law, the legal system and the administration of justice; b. Appear at a public hearing before a legislative or executive body on matters concerning the law, the legal system or the administration of justice and otherwise consult with them on matters concerning the administration of justice; c. Serve on any organization devoted to the improvement of the law, the legal system or the administration of justice.

In every instance, the judge shall indicate the legal reason for inhibition.

Q: In a hearing before the Court of Tax Appeals, Atty. G was invited to appear as amicus curiae. One of the Judges hearing the tax case is the father of Atty. G. The counsel for the respondent moved for the inhibition of the judge in view of the father-son relationship. Is there merit to the motion? Decide. (1996 Bar Question) A: There is no merit to the motion. Rule 3.12 of the CJC provides that “a judge should take no part where the

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JUDICIAL ETHICS CANON 5, A JUDGE SHOULD REGULATE EXTRAJUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH JUDICIAL DUTIES. (1995, 1997, 1999, 2000, 2002 Bar Questions) A judge should so manage investments and other financial interests as to minimize the number of cases giving grounds for disqualification. (Rule 5.02)

A judge should regulate his extra-judicial activities so as to minimize the risk of conflict with judicial duties. ADVOCATIONAL, CIVIL AND CHARITABLE ACTIVITIES

Rule 5.03, Canon 5 Subject to the provisions of the proceeding rule, a judge may hold and manage investments but should not serve as officer, director, manager or advisor, or employee of any business except as director of a family business of the judge.

Rule 5.01, Canon 5 A judge may engage in the following activities provided that they do not interfere with the performance of judicial duties or detract from dignity of the court: 1. Write, teach and speak on non-legal subjects; 2. Engage in the arts, sports, and other special recreational activities; 3. Participate in civic and charitable activities; 4. Serve as an officer, director, trustee, or nonlegal advisor of non-profit or non-political, educational, religious, charitable, fraternal, or civic organization.

Rule on judges having investments GR: A judge may hold and manage investments but should not serve as: 1. An officer 2. Director 3. Manager 4. Advisor 5. Employee of any business

FINANCIAL ACTIVITIES

XPN: As director of a family business of the judge. (Rule 5.03)

Rule 5.02, Canon 5 A judge shall refrain from financial and business dealing that tend to reflect adversely on the court’s impartiality, interfere with the proper performance of judicial activities or increase involvement with lawyers or persons likely to come before the court.

Rule 5.04, Canon 5 A judge or any immediate member of the family shall not accept a gift, bequest, factor or loan from anyone except as may be allowed by law.

A judge should so manage investments and other financial interests as to minimize the number of cases giving grounds for disqualifications.

Rule 5.05, Canon 5 No information acquired in judicial capacity shall be sued of disclosed by a judge in any financial dealing or for any other purpose not related to judicial activities.

Rule regarding financial activities A judge shall refrain from financial and business dealings that tend to: 1. Reflect adversely on the court’s impartiality; 2. Interfere with the proper performance of judicial activities; or 3. Increase involvement with lawyers or persons likely to come before the court.

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QUALITIES QUALITIES Judges must reject pressure by maintaining independence from, but not limited to the following:

(NEW CODE OF JUDICIAL CONDUCT) INDEPENDENCE

1.

CANON 1 JUDICIAL INDEPENDENCE IS A PRE-REQUISITE TO THE RULE OF LAW AND A FUNDAMENTAL GUARANTEE OF A FAIR TRIAL.

2.

A JUDGE SHALL, THEREFORE, UPHOLD AND EXEMPLIFY JUDICIAL INDEPENDENCE IN BOTH ITS INDIVIDUAL AND INSTITUTIONAL ASPECTS.

3.

Judicial Independence An independent Judiciary is one free from inappropriate outside influence. Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall, therefore, uphold and exemplify judicial independence in both its individual and institutional aspects (NCJC, Canon 1).

4.

Independence from public officials – the public laid their confidence on the fact that the official is mentally and morally fit to pass upon the merits of their varied intentions. Independence from government as a whole – avoid inappropriate connections, as well as any situation that would give rise to the impression of the existence of such inappropriate connections. Independence from family, social, or other relationships –Do not sit in litigation where a near relative is a part of or counsel; be independent from judicial colleagues (Sec. 2) and avoid such actions as may reasonably tend to wake the suspicion that his social or business relations constitute an element in determining his judicial course. Independence from public opinion –only guide is the mandate of law.

Q: In a civil case submitted for a decision, Judge Corpuz-Macandog acted on it based on a telephone call from a government official telling her to decide the case in favor of the defendant, otherwise she will be removed. The judge explained that she did so under pressure considering that the country was under a revolutionary government at that time. Did the judge commit an act of misconduct?

Individual Judicial Independence focuses on each particular case and seeks to insure his or her ability to decide cases with autonomy within the constraints of the law while Institutional Judicial Independence focuses on the independence of the judiciary as a branch of government and protects judges as a class (In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in Malaya dated Sept. 18, 19, 20 and 21, 2007).

A: Yes. A judge must decide a case based on its merits. For this reason, a judge is expected to be fearless in the pursuit to render justice, to be unafraid to displease any person, interest or power, and to be equipped with a moral fiber strong enough to resist temptation lurking in her office. Here, it is improper for a judge to have decided a case based only on a directive from a government official and not on the judge’s own ascertainment of facts and applicable law (Ramirez v. Corpuz-Macandog, A.M. No. R-351-RTJ, Sept. 26, 1986).

NOTE: The treatment of independence as a single Canon is the primary difference between the new Canon 1 and the Canon 1 of the 1989 Code.

Section 1, Canon 1, NCJC Judges shall exercise the judicial function independently on the basis of their assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influence, inducement, pressure, threat or interference, direct or indirect, from any quarter or for any reason.

Q: Mayor C was shot by B, the bodyguard of Mayor D, inside the court room of Judge Dabalos. Consequently, an information with no bail recommendation was filed against B and D. The murder case was then scheduled for raffle but before the scheduled date, the son of Mayor C together with their counsel, Atty. Libarios, and other sympathizers staged a rally demanding immediate arrest of the accused. Judge Dabalos then issued an order without prior hearing directing the issuance of a warrant of arrest against the accused. Did the judge commit an act of misconduct?

Judges should inspire public confidence in the judiciary which can be attained only if judges are perceived by the public to be fair, honest, competent, principled, dignified and honorable. Accordingly, the first duty of judges is to conduct themselves at all times in a manner that is beyond reproach.

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JUDICIAL ETHICS A: Yes. The judge should not issue warrant of arrest without personally evaluating the resolution of the prosecutor and its supporting evidence to establish judicial probable cause (RRC, Sec.6, Rule 112). A judge in every case should endeavor diligently to ascertain the facts and the applicable law unswayed by partisan or personal interests, public opinion or fear of criticism. Here, the judge should not have allowed himself to be swayed into issuing a warrant of arrest (Libarios v. Dabalos A.M. No.RTJ-89-286, July 11, 1991).

Q: A Judge of the RTC wrote a letter to the judge of the lower court, seeking to influence him to hear the case and even intimating that he issue an order of acquittal. Is it proper? A: No, the Supreme Court ruled that a judge who tries to influence the outcome of a case pending before another court not only subverts the independence of the judiciary but also undermines the people’s faith in its integrity and impartiality. The interference in this decision-making process of another judge is a breach of conduct so serious as to justify dismissal from service based only on preponderance of evidence (Sabitsana Jr. vs. Villamor, A.M. No. 90-474, Oct. 4 1991).

Sec. 2, Canon 1, NCJC In performing judicial duties, Judges shall be independent from judicial colleagues in respect of decisions which the judge is obliged to make independently.

Sec. 4, Canon 1, NCJC Judges shall not allow family, social, or other relationships to influence judicial conduct or judgment.

Degree of independence The highest degree of independence is required of judges. He must be independent in decision-making. He cannot consult with staff and court officials. However, he can ask colleagues purely academic or hypothetical questions but not to the extent of asking them to decide a case.

The prestige of judicial office shall not be used or lent to advance the private interests of others, nor convey or permit others to convey the impression that they are in a special position to influence the judge.

NOTE: It is every judge’s duty to respect the individual independence of fellow judges.

Purpose of Sec. 4, Canon 1 of NCJC

Sec. 3, Canon 1, NCJC Judges shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court or administrative agency. (Principle of Subjudice)

It is intended to ensure that judges are spared from potential influence of family members by disqualifying them even before any opportunity for impropriety presents itself. The term “judge’s family” include: 1. 2. 3. 4. 5. 6.

A judge is prohibited from making public statements in the media regarding a pending case so as not to arouse public opinion for or against a party. (2007 Bar Question) This section affirms that a judge’s restraint from exerting influence over other judicial or quasi-judicial bodies is required for more than just propriety.

7.

Any attempt, whether successful or not, to influence the decision-making process of another judge, especially one who is of lower rank and over whom a judge exercises supervisory authority constitutes serious misconduct.

When the judge is related to one of the parties within the sixth degree of consanguinity or affinity, a judge’s disqualification to sit in a case is mandatory.

NOTE: If the consultation is purely on an academic or hypothetical basis, and the judge does not surrender his or her independent decision making, there can be no breach of Sections 2 and 3 of Canon 1 of the New Code. UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Judge’s spouse Son Daughter Son-in-law Daughter-in-law 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 (NCJC of the Philippine Judiciary-Annotated, February 2007).

NOTE: Judges should ensure that their family members, friends and associates refrain from creating the impression that they are in a position to influence the judge. Judges

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QUALITIES should, therefore, at all times remind themselves that they are not in the judiciary to give out favors but to dispense justice. They should also make it clear to the members of their family, friends and associates that they will neither be influenced by anyone, nor would they allow anyone to interfere in their work.

NOTE: It is desirable that the judge should, as far as reasonably possible, refrain from all relations which would normally tend to arouse suspicion that such relations warp or bias his judgment, and prevent an impartial attitude of minds in the administration of judicial duties. Judges should not fraternize with litigants and their counsel; they should make a conscious effort to avoid them in order to avoid the perception that their independence has been compromised (Tan v.Rosete, A.M. No. MTJ-04-1563, Sept. 8, 2004).

Sec. 5, Canon 1, NCJC Judges shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to be free therefrom to a reasonable observer.

Sec. 7, Canon 1, NCJC Judges shall encourage and uphold safeguards for the discharge of judicial duties in order to maintain and enhance the institutional and operational independence of the judiciary.

This section affirms the independence of the judiciary from the two other branches of government. Sec. 8, Canon 1, NCJC Judges shall exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary, which is fundamental to the maintenance of judicial independence

NOTE: Judicial independence is the reason for leaving exclusively to the Court the authority to deal with internal personnel issues, even if the court employees in question are funded by the local government (Bagatsing v. Herrera, G.R. No. L-34952,July 25, 1975).

Q: Several employees of the city government of Quezon City were appointed and assigned at the office of the Clerk of Court-MeTC QC to assist the organic staff of the Judiciary. However, the executive judge of MeTC QC, in view of a reorganization plan, returned those employees to different offices of QC government saying that the court is already overstaffed. The judge also requested the QC Mayor to re-employ the laid off employees. Did the judge commit any improper conduct?

Sections 7 and 8 of Canon 1 are intended to serve as catch-all provisions for all other acts that would guarantee the independence of the judiciary. There can be no sure guarantee of judicial independence than the character of those appointed to the Bench. Judges must remain conscious of their character and reputation as judges and should avoid anything which will not dignify their public positions and demean the institution to which they belong, in whatever atmosphere or environment they may happen to be.

A: Yes. An executive judge has no authority to cause the transfer of court employees as the jurisdiction to do so is lodge solely upon the SC through the Office of the Court Administrator. This is so because of the need to maintain judicial independence. Moreover, a judge shall be free from inappropriate connections with and influence from the executive and legislative branch. Here, the judge did not act independently of the LGU when she asked the Mayor of QC to re-employ the displaced employees instead of informing the SC through the OCA of the need to streamline her court of its personal needs (Alfonso v. Alonzo-Legasto, A.M. No. MTJ 94-995, Sept. 5, 2002).

INTEGRITY CANON 2 INTEGRITY IS ESSENTIAL NOT ONLY TO THE PROPER DISCHARGE OF THE JUDICIAL OFFICE, BUT ALSO TO THE PERSONAL DEMEANOR OF JUDGES.

A judge should act with integrity and behave with integrity at all times so as to promote public confidence in the integrity of the judiciary.

Sec. 6, Canon 1, NCJC Judges shall be independent in relation to society in general and in relation to the particular parties to a dispute which he or she has to adjudicate.

Integrity is required not only in the discharge of judicial duties but also to the personal demeanor of judges

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JUDICIAL ETHICS Integrity is essential not only to the proper discharge of the judicial office but also to the personal demeanor of judges. (NCJC, Canon 2) The integrity of the judiciary rests not only upon the fact that it is able to administer justice but also upon the perception and confidence of the community that people who run the system have done justice. Justice must not be merely done but must also be seen to be done. (Panaligan v. Judge Ibay, A.M. No. TJ-06-1972, June 21, 2006)

than his legal wife, Judge Marcos has demonstrated himself to be wanting in integrity, thus, unfit to remain in office and continue discharging the functions of a judge. (Re: Complaint of Mrs. Rotilla A. Marcos and Her Children against Judge Ferdinand J. Marcos, RTC, Br. 20, Cebu City, A.M. No. 97-2-53 RTC, July 6, 2001) Judges must always wear a robe at hearings A judge must take care not only to remain true to the high ideals of competence and integrity his robe represents, but also that he wears one in the first place (Chan v. Majaducan A.M. No. RTJ-02-1697, Oct. 15, 2003).

In the Judiciary, moral integrity is more than a cardinal virtue, it is a necessity (Pascual v. Bonifacio, AM No. RTJ-01-1625, Mar. 10, 2003). Judges must be models of uprightness, fairness and honesty (Rural Bank of Barotac Nuevo, Inc v. Cartagena, A.M. No. 707-MJ, July 21, 1978).

Sec. 2, Canon 2, NCJC The behavior and conduct of judges must reaffirm the people’s faith in the integrity of the Judiciary.

NOTE: Under the 1989 Code, the values of INTEGRITY and INDEPENDENCE were grouped together, but the New Code of Judicial Conduct separated them to emphasize the need to maintain a life of PERSONAL and PROFESSIONAL INTEGRITY in order to properly carry out their judicial functions.

Justice must not merely be done, but must also be seen to be done.

Presumption regarding judges

A judge has the duty to not only render a just and impartial decision, but also render it in such a manner as to be free from any suspicion as to its fairness and impartiality, and also as to the judge’s integrity. While judges should possess proficiency in law in order that they can completely construe and enforce the law, it is more important that they should act and behave in such a manner that the parties before them should have confidence in their impartiality (Sibayan-Joaquin v. Javellana, A.M. No. RTJ-00-1601, Nov. 13, 2001).

Judges are presumed honest and, are men of integrity, unless proven otherwise. Section 1, Canon 2, NCJC Judges shall ensure that not only is their conduct above reproach, but that it is perceived to be so in the view of a reasonable observer.

Q: Justice Mariano Del Castillo was charged with plagiarism, twisting of cited materials, and gross neglect in connection with the decision he wrote for the court in G.R. No. 162230, entitled Vinuya v. Romulo. Petitioners, members of the Malaya Lolas Organization, seek reconsideration of the decision of the Court dated October 12, 2010 that dismissed the said complaint. Petitioners claim that the Court has by its decision legalized or approved of the commission of plagiarism in the Philippines. Should the respondent justice be held guilty for plagiarism?

The maintenance of the court’s integrity is not the sole duty of the judge. It is also the duty of court personnel to see to it that its integrity is unblemished. NOTE: A judge’s personal behavior, both in the performance of his duties and in his daily life, must be free from any appearance of impropriety as to be beyond reproach.

Q: Judge Ferdinand Marcos of RTC Cebu is married to Rotilla with whom he begot 2 children. However, during a Fun Run sponsored by Philippine Judges Association (PJA), Judge Marcos appeared with a woman other than his wife whom he even introduced to Justice Davide as his living partner. Should the judge be disciplined?

A: No. A judge writing to resolve a dispute, whether trial or appellate, is exempted from a charge of plagiarism even if ideas, words or phrases from a law review article, novel thoughts published in a legal periodical or language from a party’s brief are used without giving attribution. Thus, judges are free to use whatever sources they deem appropriate to resolve the matter before them, without fear of reprisal. This exemption applies to judicial writings intended to decide cases for two reasons: the judge is not writing

A: Yes. The Code of Judicial Conduct requires a judge to be the embodiment of integrity, and to avoid appearance of impropriety in all activities. Here, Judge Marcos’ conduct of flaunting his mistress is a conduct unbecoming of a judge. By living with a woman other UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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QUALITIES courts for grievances look upon them also as part of the judiciary. In performing their duties and responsibilities, court personnel serve as sentinels of justice, that any act of impropriety they commit immeasurably affects the honor and dignity of the judiciary and the people's confidence in the judiciary. They are, therefore, expected to act and behave in a manner that should uphold the honor and dignity of the judiciary, if only to maintain the people’s confidence in the judiciary (Guerrero v.Ong, A.M. No. P-092676, Dec. 16, 2009).

a literary work and, more importantly, the purpose of the writing is to resolve a dispute. As a result, judges adjudicating cases are not subject to a claim of legal plagiarism. Although as a rule, practicing lawyers receive compensation for every pleading or paper they file in court or for every opinion they render to clients, lawyers also need to strive for technical accuracy in their writings. They should not be exposed to charges of plagiarism in what they write so long as they do not depart, as officers of the court, from the objective of assisting the Court in the administration of justice (In matter of the Charges of Plagiarism etc.. Against Associate Justice Mariano C. Del Castillo, A.M. No. 107-17-SC, February 8, 2011).

Q: While Judge Tuparin was in his chambers dictating an order to a stenographer, two lawyers who were in the courtroom waiting for the start of the session almost came to blows as a result of a heated argument. Tuparin came out of his chambers and after identifying the lawyers involved in the commotion promptly declared them in contempt of court. Was the action of Judge Tuparin proper?

Sec. 3, Canon 2, NCJC Judges should take or initiate appropriate disciplinary measures against lawyers or court personnel for unprofessional conduct of which the judge may have become aware.

A: No. The act committed by the two lawyers was indirect contempt violative of the rule punishing “any improper conduct tending directly or indirectly, to impede, obstruct, or degrade the administration of justice”, since the judge was then engaged in dictating an order before the morning session was called. The act of the two lawyers constituted obstruction of the administration of justice, which was indirect contempt. Accordingly, they could only be punished after notice and hearing.

A judge may summarily punish any person including lawyers and court personnel, for direct contempt for misbehavior committed in the presence of or so near a court or a judge as to obstruct or interrupt the proceedings before the same (RRC, Rule 71). He may also punish any person for indirect contempt after appropriate charge and hearing, for acts enumerated under Section 3, Rule 71 of the Rules of Court.

IMPARTIALITY CANON 3 IMPARTIALITY IS ESSENTIAL TO THE PROPER DISCHARGE OF THE JUDICIAL OFFICE. IT APPLIES NOT ONLY TO THE DECISION ITSELF BUT ALSO TO THE PROCESS BY WHICH THE DECISION IS MADE.

Judge’s duty with respect to court employees A judge should constantly keep a watchful eye on the conduct of his employees. His constant scrutiny of the behavior of his employees would deter any abuse on the part of the latter in the exercise of their duties (Buenaventura v. Benedicto, A.C. No. 137-5, Mar. 27, 1971).

Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made (NCJC, Canon 3).

A judge cannot dismiss a court personnel. The power to dismiss a court employee is vested in the Supreme Court (Dailay-Papa v. Almora, A.M. Nos. 543-MC and 1525-MJ, Dec. 19, 1981).

Principle of cold neutrality of an impartial judge A judge should not only render just, correct, and impartial decision but should do so in a manner free from suspicion as to his fairness, impartiality and integrity. This is an indispensable requisite of due process (Rallos v. Gako, A.M. No.RTJ-98-1484, Mar. 17, 2000).

NOTE: Judges should not be lenient in the administrative supervision of employees. As an administrator, the judge must ensure that all court personnel perform efficiently and promptly in the administration of justice (Ramirez v. CorpuzMacandog, A.M. No. R-351-RTJ, Sept. 26, 1986).

NOTE: A judge has both: the duty of rendering a just decision; and, doing it in a manner completely free from suspicion as to his fairness and as to his integrity.

All court personnel, from the lowliest employees to the clerks of court, are involved in the dispensation of justice like judges and justices, and parties seeking redress from the

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JUDICIAL ETHICS A: No. Judge Dicdican cannot be charged with bias and partiality, merely on the basis of his decision not to grant a motion for a preliminary hearing. Allegations and perceptions of bias from the mere tenor and language of a judge are insufficient to show prejudgment. Moreover, as long as opinions formed in the course of judicial proceedings are based on the evidence presented and the conduct observed by the judge, such opinion – even if later found to be erroneous on appeal or made with grave abuse of discretion on certiorari –will not necessarily prove personal bias or prejudice on the part of the judge. To allow inhibition for such reason would open floodgates to abuse. Here, the denial of the motion to hear affirmative defenses is based on the Rules of Court which provides that preliminary hearing of defenses is discretionary, hence the judge cannot be charged with partiality on the basis of such decision (Gochan v. Gochan,G.R. No. 143089, Feb. 27, 2003).

Sec. 1, Canon 3, NCJC Judges shall perform their judicial duties without favor, bias or prejudice. It is the duty of all judges not only to be impartial but also to appear impartial. Degree of proof required to prove bias on the part of the judge The complainant must prove the same by clear and convincing evidence since allegations of bias are quite serious. Mere allegations are not sufficient to constitute a violation of the rule. Q: A filed an action for specific performance with the RTC of Quezon City, presided by Judge Santiago, against X Corporation asking for the delivery of the title of 1 subdivision lot in Batangas which lot was given to him in payment for his services as geodetic surveyor. Meanwhile X Corporation filed with MTC of Batangas an action for an unlawful detainer against certain lot buyers on motion of A. Judge Santiago issued TRO against X Corporation and Judge of MTC and enjoining the latter from proceeding with the case. X Corporation now filed a motion to inhibit the judge on the ground that he arbitrarily issued such TRO, but without presenting evidence showing partiality on the part of the judge. Should the judge be inhibited?

Sec. 2, Canon 3, NCJC Judges shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the Judiciary. Rationale: No judge should handle a case in which he might be perceived, rightly or wrongly, to be susceptible to bias and impartiality. His judgment must not be tainted by even the slightest suspicion of improbity or preconceived interest. The rule is aimed at preserving at all times the faith and confidence in courts of justice by any party to the litigation (Urbanes, Jr. v. C.A., G.R. No. 117964, Mar.28, 2001).

A: No. For a judge to be inhibited, allegations of partiality and pre-judgment must be proven by clear and convincing evidence. Here, mere allegation that the judge arbitrarily issued the TRO without presenting evidence showing bias on his part is not sufficient. While Judge Santiago acted in excess of his jurisdiction when he issued the TRO for such should only be enforceable within his territorial jurisdiction, such error may not necessarily warrant inhibition at most it is correctible by certiorari (Dimo Realty &Development, Inc. v. Dimaculangan, G.R. No. 130991, Mar. 11, 2004).

There is undue interference where the judge’s participation in the conduct of the trial tends to build or to bolster a case of one of the parties (Ty v. Banco Filipino Savings and Mortgage Bank, CA and Hon. Tacan G.R. Nos. 149797-98, Feb. 13, 2004). Q: Banco Filipino filed a complaint for reconveyance of property against Ty and Tala Realty Services Corp., which complaint was dismissed on the ground of lack of jurisdiction. However, on motion for reconsideration filed by Banco Filipino, the case was reinstated and the judge even relieved Banco Filipino from its obligation to prove service of its motion for reconsideration and presumed actual receipt of the same by the other party. Thereafter, the judge directed the respondents to present certain documents within a certain period of time despite failure of Banco Filipino to tender the costs for such production and inspection. Tala then filed a motion

Extra-judicial source rule It means that the decision is based on some influence other than the facts and law presented in the courtroom. Q: A motion to inhibit Judge Dicdican was filed on the ground of partiality and bias on his part for allegedly denying a motion to hear affirmative defenses thereby denying the movant the opportunity to be heard. Should the judge be inhibited? UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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QUALITIES for inhibition but the same was denied by the judge. Did the judge commit any improper conduct?

that a party cast some tenuous allegations of partiality at the judge.

A: Yes. The rule is that a judge may not be legally prohibited from sitting in litigation, but when circumstances appear that will induce doubt to his honest actuations and probity in favor of either party, or incite such state of mind; he should conduct a careful self-examination. He should exercise his discretion in a way that the people's faith in the courts of justice is not impaired. The better course for the judge under such circumstances is to disqualify himself. That way, he avoids being misunderstood; his reputation for probity and objectivity is preserved. What is more important, the ideal of impartial administration of justice is lived up to. Here, the judge, by assuming actual receipt by the respondents of proof of service of the motion for reconsideration, absolving Banco Filipino from paying the expenses of production of documents, and suggesting to Banco Filipino what evidence to present to prove its case, transgressed the boundaries of impartiality. Thus, the judge should inhibit himself (Ty v. Banco Filipino Savings and Mortgage Bank, et. al., G.R. Nos. 14979798, Feb. 13, 2004).

Rule of necessity It states that a judge is not disqualified to sit in a case where there is no other judge available to hear and decide the case. Furthermore, when all judges will be disqualified as a result, it will not be permitted to destroy the only tribunal with the power in the premises. The doctrine operates on the principle that a basic judge is better than no judge at all. It is the duty of the disqualified judge to hear and decide the case regardless of objections or disagreements (Parayno v.Meneses, G.R. No. 112684, Apr. 26, 1994). Sec. 4, Canon 3, NCJC Judges shall not knowingly, while a proceeding is before or could come before them, make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process. Nor shall judges make any comment in public or otherwise that might affect the fair trial of any person or issue.

A trial judge can ask questions from witnesses. In every examination of a witness, the court shall take active part in examining him to determine his credibility as well as the truth of his testimony and to elicit the answers that it needs for resolving the issues (Judicial Affidavit Rule, Sec. 7).

A judge’s language, both written and spoken, must be guarded and measured, lest the best of intentions be misconstrued (Fecundo v. Berjamen,G.R. No. 88105, Dec. 18, 1989).

NOTE: In disposing of a criminal case, a judge should avoid appearing like an advocate for either party. It is also improper for the judge to push actively for amicable settlement against the wishes of the complainant. A judge’s unwelcome persistence makes the judge vulnerable to suspicions of favoritism (Montemayor v. Bermejo, Jr.,A.M. No.MTJ-04-1535, Mar. 12, 2004).

Reason for the rule This Section warns judges against making any comment that might reasonably be expected to affect the outcome of the proceedings before them; or those that the judge may later decide but not yet before him; or "impair the manifest fairness of the process.”

Sec. 3, Canon 3,NCJC Judges shall, so far as is reasonable, so conduct themselves as to minimize the occasions on which it will be necessary for them to be disqualified from hearing or deciding cases.

Q: Justice Antonio Carpio penned a decision regarding the invalidity of the amended joint venture agreement between Public Estates Authority (PEA) and Amari Coastal Bay Development Corporation saying that the agreement is unconstitutional as PEA cannot transfer ownership of a reclaimed land to a private corporation. Amari now filed a motion to inhibit Justice Carpio on the ground of bias and prejudgment allegedly because he had previously wrote in his column in Manila Times a statement to the effect that the law requires public bidding of reclaimed projects and that the PEA-Amari contract is flawed for it was not bid by the PEA. Decide on the motion.

Meaning of “duty to sit” It means that a judge must ensure that he will not be unnecessarily disqualified from a case. A judge cannot inhibit himself as he pleases. A decision to inhibit must be based on good, sound or ethical grounds, or for just and valid reasons. It is not enough

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JUDICIAL ETHICS A: The motion to inhibit must be denied for three reasons: 1.

2.

3.

be obtained extra-judicially like out-of-court observations. This prohibition also disallows extra-judicial research on the internet.

The motion to inhibit must be denied if filed after a member of the court had already rendered his opinion on the merits of the case. Here, the motion was filed after Justice Carpio had already rendered a decision; The ratio decidendi of the decision was not based on his statements on the column. Here, the decision was based on constitutional grounds and not in the absence of public bidding; and Judges and justices are not disqualified from participating in a case just because they have written legal articles on the law involved in the case (Chavez v. PEA, G.R. No. 133250, May 6, 2003).

The judge previously served as a lawyer or was a material witness in the matter in controversy (CJC, Sec. 5(b), Canon 3); A judge may be disqualified if he was formerly associated with one of the parties or their counsel. A judge who previously notarized the affidavit of a person to be presented as a witness in a case before him shall be disqualified from proceeding with the case. The judge, or a member of his or her family, has an economic interest in the outcome of the matter in controversy (NCJC, Sec. 5(c), Canon 3);

No absolute prohibition against judges from making comments Not all comments are impermissible. Judges may express their open-mindedness regarding a pending issue in cases where the judges’ comments do not necessarily favor one side over the other.

A municipal judge who filed complaints in his own court for robbery and malicious mischief against a party for the purpose of protecting the property interests of the judge’s co-heirs, and then issued warrants of arrest against the party, was found guilty of serious misconduct and ordered dismissed from the bench before he was able to rescue himself (Oktubre v. Velasco A.M. No. MTJ-02-02-1444, July 20, 2004).

However, judges should avoid side remarks, hasty conclusions, loose statements or gratuitous utterances that suggest they are prejudging a case. Judges should be aware that the media might consider them a good and credible source of opinion or ideas, and therefore should refrain from making any comment on a pending case. Not only is there danger of being misquoted, but also of compromising the rights of the litigants in the case.

The judge served as executor, administrator, guardian, trustee or lawyer in the case or matter in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein (NCJC, Sec. 5(d), Canon 3);

Sec. 5, Canon 3, NCJC Judges shall disqualify themselves from participating in any proceeding in which they are unable to decide the matter impartially or in which it may appear to a reasonable observer that they are unable to decide the matter impartially.

The restriction extends to judges who served as lawyers in closely related cases. The judge’s ruling in a lower court is the subject of review (NCJC, Sec. 5(e), Canon 3); An associate justice of the Court of Appeals refused to inhibit himself from reviewing the decision in a case which he had partially heard as a trial judge prior to his promotion, on the ground that the decision was not written by him. The Supreme Court upheld his refusal, but nevertheless commented that he "should have been more prudent and circumspect and declined to take on the case owing to his earlier involvement in the case”. The Court has held that a judge should not handle a case in which he might be perceived, rightly or wrongly, to be susceptible to bias and prejudice. (Sandoval v. CA, G.R. No. 106657,Aug. 1, 1996).

The phrase “any proceedings” include, but are not limited to instances where: The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings (NCJC, Sec. 5(a), Canon 3); The rule also requires disqualification if a judge has outside knowledge of disputed facts. To be a ground for disqualification, the knowledge must UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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QUALITIES The judge is related by consanguinity or affinity to a party litigant within the 6th civil degree or to counsel within the 4th civil degree (NCJC, Sec. 5(f), Canon 3);

prohibition provided for under the Code does not apply to special proceeding which is not controversial in nature and since she does not have any pecuniary interest in the case. Is the contention correct?

NOTE: A preliminary injunction issued by a judge in favor of his sister before inhibiting himself was found reprehensible (Hurtado v.Judajena, G.R. No. L-40603, July 13, 1978).

A: No. A judge who is related to a party within the 6th degree of consanguinity is mandated to inhibit himself from hearing the case “notwithstanding lack of pecuniary interest in the case”. This is so because lack of such interest does not mean that she can already be free from bias and partiality in resolving the case by reason of her close blood relationship as evident from the fact that here, she waived the publication requirement in order to save the petitioner from the payment of publication fee. Thus, the judge’s taking cognizance of the petition is improper (Villaluz v.Mijares, A.M. No. RTJ -98-1402 288, Apr. 3, 1998).

No judge should preside in a case which he is not wholly free, disinterested, impartial and independent (Garcia v. De La Pena. A.M.No.MTJ-92-637, Feb. 9, 1994). The judge knows that his or her spouse or child has a financial interest as heir, legatee, creditor, fiduciary or otherwise, in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceedings (NCJC, Sec. (g), Canon 3).

Degree of compliance required by the rule under Canon 3, Section 5 of NCJC

This rule is intended to ensure judges’ impartiality by preventing situations in which a judge must consider familial interests in the conflicts before him or her. If the public is aware of a family member’s financial interest, the public may question the judge’s impartiality

Strict compliance of the rule is required so as to protect the rights of the parties and assure an impartial administration of justice, as well as to prevent erosion of the people's confidence in the judiciary (Marfil v. Cuachon, A.M. No. 2360-MJ ,Aug. 31, 1981). The grounds for disqualification of a judge enumerated under Sec. 5 of Canon 3 are not exclusive. The provision provides that it is not limited to the grounds therein provided.

Q: When Atty. Rojas was appointed as a judge, he inherited a criminal case in which he acted as prosecutor. He explained that his delay in inhibiting himself from presiding on that case was because it was only after the belated transcription of the stenographic notes that he remembered that he handled that case. He also says that the counsels did not object and he never held “full-blown” hearings anyway. Should Judge Rojas be reprimanded?

Sec. 6, Canon 3, NCJC A judge disqualified as stated above may, instead of withdrawing from the proceeding, disclose on the records the basis of disqualification.

A: Yes. The Rules of Court prevent judges from trying cases where they acted as counsel “without” the consent of the parties. This prevents not only a conflict of interest but also the appearance of impropriety on the part of the judge. Here, the judge should not have taken part in the proceeding as his impartiality will naturally be questioned considering that he previously handled the case as prosecutor. He should administer justice impartially & without delay. The prohibition does not only cover hearings but all judicial acts (e.g. orders, resolutions) some of which, Judge Rojas did make (Re: Inhibition of Judge Eddie R. Rojas, A.M. No. 98-6-185-RTC, Oct. 30, 1998).

If, based on such disclosure, the parties and lawyers, independently of the judge’s participation, all agree in writing that the reason for inhibition is immaterial or unsubstantial, the judge may then participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of Types of disqualification the proceedings. 1. Mandatory or compulsory disqualification 2. Voluntary disqualification or inhibition

Q: Judge Mijares was charged with grave misconduct for taking cognizance and deciding a special proceeding for correction of entry in the record of her grandson, notwithstanding such relationship. It was also alleged that the judge dispensed with the publication requirement in said proceeding. In her answer, Judge Mijares contended that the

Inhibition An act when a judge personally prevents himself from taking cognizance of the case. This is made through a written petition to inhibit which shall state the grounds for the same. The explanation of the judge

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JUDICIAL ETHICS whether or not to take cognizance of the case must also be in writing.

mandamus to compel him to act. Judge’s decision to continue hearing a case in which he is not legally prohibited from trying notwithstanding challenge to his objectivity may not constitute reversible error.

If the judge inhibits himself from taking cognizance of the case, the same cannot be appealed. However, the judge should not immediately inhibit himself. He should make a careful examination by first taking into consideration the following: 1. General consideration – whether or not people’s faith in the judicial system will be impaired 2. Special consideration –He must reflect on the probability that the losing party will nurture at the back of his mind that he tilted the scale of justice

The filing of an administrative case against a judge disqualify does not automatically disqualify him from sitting in a case. It must be shown that there are other acts or conducts by the judge which constitute a ground for his disqualification. A judge may by mandamus be compelled to act on questions regarding his disqualification from sitting in a case.

Disqualification v. Inhibition Time to file the petition to disqualify a judge DISQUALIFICATION There are specific grounds enumerated under the rules of court for disqualification. The judge has no discretion; mandatory

INHIBITION The rule only provides broad basis for inhibition.

It must be filed before rendition of the judgment, and cannot be raised on appeal. Otherwise, the parties are deemed to have waived any objection regarding the impartiality of the judge.

The rule leaves the matter to the judge’s sound discretion

Q: A judge rendered a decision in a criminal case finding the accused guilty of estafa. Counsel for the accused filed a motion for reconsideration which was submitted without arguments. Later, another lawyer entered his appearance for the accused. The judge issued an order inhibiting himself from further sitting in the case because the latter lawyer had been among those who recommended him to the bench. Can the judge’s voluntary inhibition be sustained?

Grounds for mandatory disqualification 1. 2.

3. 4.

When he, or his wife, or child is pecuniarily interested as heir, legatee, creditor, or otherwise; When he is related to either party within the 6th degree of consanguinity or affinity or to counsel within the 4th civil degree; When he has been an executor, guardian, administrator, trustee, or counsel; or When he has presided in an inferior court where his ruling or decision is subject to review, without the written consent of the parties. (Rule 137, RRC)

A: The judge may not voluntarily inhibit himself by the mere fact that a lawyer recommended him to the bench. In fact, the appearance of said lawyer is a test as to whether the judge can act independently and courageously in deciding the case according to his conscience. “Inhibition is not allowed at every instance that a friend, classmate, associate or patron of a presiding judge appears before him as counsel for one of the parties to a case. ‘Utang na loob’, per se, should not be a hindrance to the administration of justice. Nor should recognition of such value in Philippine society prevent the performance of one’s duties as judge.” However, in order to avoid any suspicion of partiality, it is better for the judge to voluntarily inhibit himself (Query of Executive Judge Estrella T. Estrada, Regional Trial Court of Malolos, Bulacan, on the Conflicting Views of Regional Trial Court – Judges Masadao and Elizaga Re: Criminal Case No. 4954-M, A.M. No. 87-93918-RTC, Oct. 26, 1987).

Voluntary inhibition of a judge The judge may in his discretion inhibit himself, for just and valid reasons other than the grounds for mandatory disqualification. The rule on voluntary disqualification or inhibition is discretionary upon the judge on the basis of his conscience. This leaves the discretion to the judge to decide for himself questions as to whether he will desist from sitting in a case for other just and valid reasons with only his conscience to guide him, unless he cannot discern for himself his inability to meet the test of cold neutrality required of him, in which event the appellate court will see to it that he disqualifies himself.

Q: Does a judge’s active participation during the hearing of the writ of preliminary injunction amount to an evident display of his bias and partiality in favor

A decision to disqualify himself is not conclusive and his competency may be determined on application for UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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QUALITIES of the private respondents and should he therefore disqualify himself from further hearing the civil case?

Prohibition provided by the Code It prohibits not only actual impropriety but even the mere appearance of impropriety.

A: No. Mere intervention of the respondent judge during the hearing of preliminary injunction by simply asking the materiality of a question directed upon the witness and ruling against the petitioners are within the prerogatives and powers of the judge. The fact that the judge asked questions in the course of the trial does not make him a biased judge (Hizon v. Dela Fuente,G.R. No. 152328, Mar. 23, 2004).

Appearance of impropriety When the conduct of a judge would create unreasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired. NOTE: Acts done by a judge which are not illegal may still constitute a violation of this rule.

Remittal of disqualification A judge disqualified may, instead of withdrawing from the proceeding, disclose in the records the basis of disqualification. If, based on such disclosure, the parties and lawyers, independently of the judge’s participation, all agree in writing that the reason for the inhibition is immaterial or insubstantial; the judge may then participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceedings. (NCJC, Sec. 6, Canon 3)

Q: After the prosecution cross-examined Sheila, a witness for the accused, Judge Pedro asked her ten additional questions that were so intense, they made her cry. One question forced Sheila to admit that her mother was living with another man, a fact that weighed against the accused. This prompted the latter’s counsel to move to move to expunge the judge’s questions for building on the prosecution’s case. Judge Pedro denied the motion, insisting that bolstering a party’s case is incidental to the court’s desire to be clarified. Did Judge Pedro commit an impropriety? (2011 Bar Question)

Requirements for a judge to continue hearing a case despite the existence of reasons for disqualifications 1. 2.

A: Yes, because he effectively deprived the defense of its right to due process when he acted both as prosecutor and judge.

The bona fide disclosure to the parties in litigation; and The express acceptance by all the parties of the cited reason as not material or substantial.

Examples of acts of a judge which are not illegal but will constitute a violation of this rule

PROPRIETY

1. The act of a judge of hearing cases on a day when he is supposed to be on official leave (Re: Anonymous complaint Against Judge Edmundo Acuña, A.M. No. RTJ-04-1891, July 28, 2005). 2. Photograph showing the judge and a subordinate coming out of a hotel together even if there was no clear evidence of sexual congress between them is enough to give rise to the appearance of impropriety that the code strongly warns against (Liwanag v. Lustre, A.M. No. MTJ-98-1168, Apr. 21 1999). 3. Joking remark made by a judge to a litigant suggesting that the litigant prove he harbored no ill feelings towards the judge (Co v. Plata, A.M. No. MTJ03-1501,Mar. 14, 2005).

CANON 4 PROPRIETY AND THE APPEARANCE OF PROPRIETY ARE ESSENTIAL TO THE PERFORMANCE OF ALL THE ACTIVITIES OF A JUDGE. NOTE: The judge’s own perception of motives is not relevant when considering appearance of impropriety.

Sec. 1, Canon 4, NCJC Judges shall avoid impropriety and the appearance of impropriety in all of their activities.

Q: During the hearing of an election protest filed by the brother of Judge Dojillo, the latter sat beside the counsel of his brother allegedly to give moral support. Did the judge commit any improper conduct?

NOTE: The public holds judges to higher standards of integrity and ethical conduct than lawyers and other persons not invested with public trust.

A: Yes. The judge violated the rule on impropriety under Sec 1, Canon 4, NCJC for even if he did not

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JUDICIAL ETHICS intend to use his position as a judge to influence the outcome of his brother’s election protest, it cannot be denied that his presence in the courtroom during the hearing of his brother’s case would immediately give cause for the community to suspect that his being a colleague in the judiciary would influence the judge trying the case to favor his brother (Vidal v. Judge Dojillo Jr., A.M. No. MTJ-05-1591, July 14, 2005).

ordered Reyes to fix her hair. Is the respondent judge guilty of impropriety and gross misconduct? A: Yes. Judges should avoid impropriety and the appearance of impropriety in all of their activities. Judges should conduct themselves in a way that is consistent with the dignity of the judicial office. Judges, like any other citizen, are entitled to freedom of expression, belief, association and assembly, but in exercising such rights, they should always conduct themselves in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.

NOTE: The Judge’s act in riding in defendant’s car deserves the stern probation of the Court. By such act, he openly exposed himself and the office he holds to suspicion, thus impairing the trust and faith of the people in the administration of justice. A judge’s official conduct should be free from the appearance of impropriety and his personal conduct and behavior should be beyond reproach (Spouses Cabreana v. Avelino A.M. No. 1733 CFI, Sept. 30, 1981).

The conduct of Judge Duque fell short of the exacting standards for members of the judiciary. He failed to behave in a manner that would promote confidence in the judiciary. Considering that a judge is a visible representation of the law and of justice, he is naturally expected to be the epitome of integrity and should be beyond reproach. Judge Duque’s conduct indubitably bore the marks of impropriety and immorality. He failed to live up to the high moral standards of the judiciary and even transgressed the ordinary norms of decency of society. Had Judge Duque not retired, his misconduct would have merited his dismissal from the service (Reyes v. Duque, A.M. No. RTJ-08-2136 , Sept. 21, 2010).

Q: Judge Duque of the RTC was charged with Impropriety, Corruption and Gross Misconduct. Reyes alleged that she was a party-in-intervention in Land Registration filed by the Philippine Savings Bank against the spouses Choi. In a Decision, Judge Duque granted the motion for the issuance of a writ of possession in favor of the bank. Complainant Reyes filed an “Urgent Petition for Lifting and Setting Aside of Writ of Possession and Quashal of Notice to Vacate” claiming that she bought the subject property from the spouses Choi and that she was in actual possession of the property with full knowledge of the bank. At the hearing, Atty. Ubana, the lawyer of Reyes, introduced her to Judge Duque who allegedly gave Reyes 30 days to settle matters with the bank. She was unable to re-negotiate with the bank. Reyes then allegedly received a phone call from Judge Duque and he instructed Reyes to go “to his house and bring some money in order that he can deny the pending motion to break open.” When she already had the money, she went to his house. The son of Judge Duque opened the gate. At his house, Judge Duque demanded money from her.

Sec. 2, Canon 4, NCJC As a subject of constant public scrutiny, judges must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In particular, judges shall conduct themselves in a way that is consistent with the dignity of the judicial office. Membership in the judiciary circumscribes one’s personal conduct and imposes upon him certain restrictions, the faithful observance of which, is the price one has to pay for holding such a distinguished position. Accordingly, a magistrate of the law must comport himself in a manner that his conduct must be free of a whiff of impropriety, not only with respect to the performance of his official duties, but also to his behavior outside his sala and as a private individual. His conduct must be able to withstand the most searching public scrutiny, for the ethical principles and sense of propriety of a judge are essential to the preservation of the people’s faith in the judicial system lest public confidence in the judiciary would be eroded by the incompetent, irresponsible and negligent conduct of judges (Bayaca v. Judge Ramos, A.M. No. MTJ-07-1676, Jan. 29, 2009).

Another incident happened, whereby Reyes went to the house of Judge Duque for the payment of a sum of money. Judge Duque allegedly scolded her for not bringing the whole amount. Judge Duque then locked the main door of his house and asked Reyes to step into his office. Judge Duque held the waist of Reyes, embraced and kissed her. Reyes tried to struggle and free herself. Judge Duque raised her skirt, opened her blouse and sucked her breasts. He touched her private parts and attempted to have sexual intercourse with Reyes. Reyes shouted for help but the TV was too loud. As a desperate move, Reyes appealed to Judge Duque saying: “kung gusto mo, huwag dito. Sa hotel, sasama ako sayo.” Judge Duque suddenly stopped his sexual advances and UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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QUALITIES Dignified conduct

frequently inquired whether the law school in which Justice Hernandez had studied and from which he had graduated was better than his (Justice Ong’s) own alma mater. The complainant opined that the query was manifestly intended to emphasize that the San Beda College of Law, the alma mater of Justice Ong, and the UP College of Law, that of Justice Hernandez, were the best law schools. On another occasion in that hearing in Cebu City, Justice Hernandez discourteously shouted at Prosecutor Hazelina Tujan-Militante, who was then observing trial from the gallery and said “You are better than Director Somido? Are you better than Director Chua? Are you here to supervise Somido? Your office is wasting funds for one prosecutor who is doing nothing”. Finally, Justice Hernandez berated Atty. Pangalangan, the father of former UP Law Dean Raul Pangalangan, and uttered words such as “Just because your son is always nominated by the JBC to Malacañang, you are acting like that! Do not forget that the brain of the child follows that of their (sic) mother.” Should the respondent justices be held liable for conduct unbecoming?

It is best described as conduct befitting men and women possessed of temperance and respect for the law and for others. Q: Judge Gonzales together with his two male friends went to the house of A and asked the two girls who were then boarding in A’s house to accompany his two male friends and take a stroll in the beach. When the girls refused, the judge admonished them. Consequently, the judge was charged with conduct unbecoming of a judge. Will the action prosper? A: Yes. A judge should so comport himself as not to degrade or bring embarrassment to his office. Here, Judge Gonzales’ act of imposing his will on the complainants constitutes conducts unbecoming of a judge who should be civil, humble and considerate of the rights of others (Mariano v. Gonzales, A.M. No. 2180-MJ 114, May 31, 1982). Sec. 3, Canon 4, NCJC Judges shall, in their personal relations with individual members of the legal profession who practice regularly in their court, avoid situations which might reasonably give rise to the suspicion or appearance of favoritism or partiality.

A: Yes. Publicizing professional qualifications or boasting of having studied in and graduated from certain law schools, no matter how prestigious, might have even revealed, on the part of Justice Ong and Justice Hernandez, shows their bias for or against some lawyers. Their conduct was impermissible, consequently, for Section 3, Canon 4 of the New Code of Judicial Conduct for the Philippine Judiciary, demands that judges avoid situations that may reasonably give rise to the suspicion or appearance of favoritism or partiality in their personal relations with individual members of the legal profession who practice regularly in their courts. Judges should be dignified in demeanor, and refined in speech. In performing their judicial duties, they should not manifest bias or prejudice by word or conduct towards any person or group on irrelevant grounds. It is very essential that they should live up to the high standards their noble position on the Bench demands. Their language must be guarded and measured, lest the best of intentions be misconstrued. In this regard, Section 3, Canon 5 of the New Code of Judicial Conduct for the Philippine Judiciary, mandates judges to carry out judicial duties with appropriate consideration for all persons, such as the parties, witnesses, lawyers, court staff, and judicial colleagues, without differentiation on any irrelevant ground, immaterial to the proper performance of such duties (Jamsani-Rodriguez v. Ong, A.M. No. 08-19-SB-J, Aug. 24, 2010).

This section is directed at bolstering the principle of cold neutrality of an impartial judge as it requires judges to scrupulously guard against any act that may be construed as an expression of bias in favor of a litigant. NOTE: Constant company with a lawyer tends to breed intimacy and camaraderie to the point that favors in the future may be asked from the judge which he may find it hard to resist. If a judge is seen eating and drinking in public places with a lawyer who has cases pending in his or her sala, public suspicion may be aroused, thus tending to erode the trust of litigants in the impartiality of the judge (Padilla v. Zantua, G.R. No. 110990, Oct. 23, 1994).

Q: Complainant Prosecutor filed an administrative complaint against respondent Sandiganbayan Justices for grave misconduct, conduct unbecoming a Justice, and conduct grossly prejudicial to the interest of the service. Allegedly, during a hearing, Justice Ong uttered words like “We are playing Gods here, we will do what we want to do, your contempt is already out, we fined you eighteen thousand pesos, even if you will appeal, by that time I will be there, Justice of the Supreme Court.” Also, he often asked lawyers from which law schools they had graduated, and

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JUDICIAL ETHICS A: Yes. Judges are demanded to be always temperate, patient and courteous both in the conduct and language. Indeed, judges should so behave at all times because having accepted the esteemed position of a judge he ought to have known that more is expected of him than ordinary citizen. Here, the judge’s use of humiliating and insensitive expressions like “putris” and ”putang-ina” is improper as such intemperate language detracts from how he should conduct himself. Moreover, it does not matter whether such expressions were directed to a particular person or not, as they give the impression of a person’s ill manners (Re: Anonymous complaint Against Judge Acuña, A.M. No. RTJ-04-1891, July 28, 2005).

Sec. 4, Canon 4, NCJC Judges shall not participate in the determination of a case in which any member of their family represents a litigant or is associated in any manner with the case.

This rule rests on the principle that no judge should preside in a case in which the judge is not wholly free, disinterested, impartial and independent.

Sec. 5, Canon 4, NCJC Judges shall not allow the use of their residence by a member of the legal profession to receive clients of the latter or of other members of the legal profession.

NOTE: Judges in the exercise of their civil liberties, should be circumspect and ever mindful of their continuing commitment to uphold the judiciary and its value places upon them certain implied restraints to their freedom. A judge was admonished for the appearance of engaging in partisan politics when he participated in a political rally sponsored by one party, even though he only explained the mechanics of block voting to the audience (Macias v. Arula, A.M. No. 1895-CFI, July 20, 1982).

The reason is that judges are required to always exhibit cold neutrality of an impartial judge. NOTE: It was inappropriate for a judge to have entertained a litigant in his house particularly when the case is still pending before his sala (J. King and Sons. v. Hontanosas, Adm. Matter No. RTJ-03-1802, Sept. 21, 2004).

Sec. 7, Canon 4, NCJC Judges shall inform themselves about their personal fiduciary and financial interests and shall make reasonable efforts to be informed about the financial interests of members of their family.

Sec. 6, Canon 4, NCJC Judges, like any other citizen, are entitled to freedom of expression, belief, association and assembly, but in exercising such rights, they shall always conduct themselves in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.

NOTE: This section should be read in conjunction with Sec. 7 of the R.A. 6713 (Code of Conduct and Ethical standards for Public Officials and Employee), which prohibits certain personal fiduciary and financial conflicts. A judge shall refrain from financial and business dealings that tend to reflect adversely on the court's impartiality, interfere with the proper performance of judicial activities, or increase involvement with lawyers or persons likely to come before the court.

While judges are not expected to live a hermit-like existence or cease functioning as citizens of the Republic, they should remember that they do not disrobe themselves of their judicial office upon leaving their salas. In the exercise of their civil liberties, they should be circumspect and ever mindful that their continuing commitment to upholding the judiciary and its values places upon them certain implied restraints to their freedom.

Sec. 8, Canon 4, NCJC Judges shall not use or lend the prestige of the judicial office to advance their private interests, or those of a member of their family or of anyone else, nor shall they convey or permit others to convey the impression that anyone is in a special position improperly to influence them in the performance of judicial duties.

Q: In an anonymous letter sent to the OCA, Judge Acuña was charged with improper conduct for allegedly making humiliating statements such as “putris,” and “putang-ina”. In his comment, Judge Acuña explained that those words are only his favorite expressions and they are not directed to any particular person. He also explained that his behavior is justified by the fact that he is still mourning the sudden demise of his eldest son. Is the Judge guilty of improper conduct?

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Prohibited acts by the rule 1.

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Judge’s act of using judicial office to advance private interests

QUALITIES Rationale: The prohibition will discourage, if not stop judges from making business speculations in some business ventures, the secrets of which they learned by reason of their position as judges.

NOTE: An RTC judge took advantage of his position, by filing in the Makati court a collection case in which he and his wife were the complainants. The Court ruled that although a stipulation in the contract gave the judge, as creditor, choice of venue, the judge had nonetheless fallen short of what is expected of him as a judicial officer. This act of the judge would lead the public, and in particular the judge’s adversary, to suspect that the judge would use the choice of venue as a means to exert influence in favor of himself (Javier v. De Guzman, A.M. No. RTJ-89-380, Dec. 19, 1990.)

2.

Q: Judge Lilagam was charged with improper conduct for allowing his wife to have access to court records. In his answer, the judge admitted that he requested his wife who was previously a legal researcher, to go over the records and pinpoint problem areas and to suggest measures to rectify the same and to improve the system of case monitoring. Is the judge guilty of improper conduct?

Judge’s act of giving impression that he can be influenced to use the judicial office to advance the private interests of others.

A: Yes. Records of cases are necessarily confidential, and to preserve their integrity and confidentiality, access thereto ought to be limited only to the judge, the parties or their counsel and the appropriate court personnel in charge of the custody of said records. Here, since Mrs. Lilagam is not a court employee specifically in charge of the custody of said records, the judge’s act of allowing her to have access thereto is improper as such would convey the impression that she is the one who can influence the judge’s official function (Gordon v. Lilagam, A.M. No. RTJ-00-1564, July 26, 2001).

NOTE: Another common violation of this rule is using judicial power to exact personal vengeance.

Q: Judge Escano was charged with allegedly using court facilities (bulletin board) in advertising for attractive waitresses and cooks for possible employment in their restaurant business. In addition, the judge also allowed the use of the court address to receive applications as well as his office in screening the applicants. In his comment, the judge explained that he merely wanted to give assistance to his wife, and the posting of advertisements as well as the conduct of screening in his office is the most convenient way for him considering the difficulty of locating the residence. Did the judge commit any unethical act?

Violation of the rule which constitutes criminal offense The following , under Sec. 3[k] of R.A. 3019, and under Art. 229 and 230 of the RPC, are violation of the rule which also constitute criminal offense:

A: Yes. Judges shall not use or lend the prestige of the judicial office to advance their private interests for those of a member of a family. This is so to avoid possible interference which may be created by such business involvements in the exercise of their duties which may tend to corrode the respect and dignity of the court as bastion of justice. Here, the act of the judge in using the court facilities to promote family business is improper (Dionisio v. Escano, A.M.No. RTJ98-1400, Feb. 1, 1999).

1.

2.

Ticket fixing It is misconduct in which judges impermissibly take advantage of their public position to avoid punishment for traffic violations.

3.

Sec. 9, Canon 4, NCJC Confidential information acquired by judges in their judicial capacity shall not be used or disclosed for any other purpose not related to their judicial duties.

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Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date (R.A. 3019, Sec. 3[k]). Revelation of secrets by an officer –Any public officer who shall reveal any secret known to him by reason of his official capacity, or shall wrongfully deliver papers or copies of papers of which he may have charge and which should not be published, shall suffer imprisonment (RPC, Art.229) . Public officer revealing secrets of private individual –Any public officer to whom the secrets of any private individual shall become known by reason of his office who shall reveal such secrets, shall suffer the penalties of arresto mayor and a fine (RPC, Art.230).

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JUDICIAL ETHICS Sec. 10, Canon 4, NCJC Subject to the proper performance of judicial duties, judges may: 1. Write, lecture, teach and participate in activities concerning the law, the legal system, the administration of justice or related matter; 2. Appear at a public hearing before an official body concerned with matters relating to the law, the legal system, the administration of justice or related matters; 3. Engage in other activities if such activities do not detract from the dignity of the judicial office or otherwise interfere with the performance of judicial duties.

Sec. 11, Canon 4, NCJC Judges shall not practice law whilst the holder of judicial office. This prohibition is based on the inherent incompatibility of the rights, duties and functions of the office of an attorney with the powers, duties and functions of a judge. NOTE: Sec. 35 of Rule 138 of the Rules of Court prohibits judges from engaging in the practice of law or giving professional advice to clients. Philippine courts not only prohibit judges from overtly representing clients as counsel of record, but also from acting more subtly in a way more befitting an advocate than a judge.

This section allows the judge to participate in legal academia and public discourse on legal matters with the proviso that there shall be no interference in the performance of the judge’s primary functions with respect to his or her jurisdiction. In dealing with the media however, the Philippine Judicial Academy suggests that a judge or court should avoid acrimonious debate with reporters and the public, for a knee jerk reaction from the court or judge may only provoke negative follow-up reports and articles.

The rule disqualifying a municipal judge from engaging in the practice of law seeks to avoid the evil of possible use of the power and influence of his office to affect the outcome of the litigation where he is retained as counsel. Compelling reasons of public policy lie behind this prohibition, and judges are expected to conduct themselves in such a manner as to preclude any suspicion that they are representing the interests of party litigant (Dia-Anonuevo v. Bercacio, A.M. No. 177-MTJ, Nov. 27, 1975)

Q: Judge Malanyaon was present in the hearing of her daughter to advise her on what to do and say during the hearing, to the point of coaching her. Was the act of the judge considered contrary to Section 11, Canon 4 of the NCJC, prohibiting judges from engaging in the private practice of law or giving professional advice to clients?

This section’s tolerance of judicially-related activities is limited by Sec. 12, Article VIII of the Constitution, which prohibits judges from being “designated to any agency performing quasi-judicial or administrative functions”. Judge cannot be a member of Provincial Committee on Justice

A: Yes. The Court held that the judge engaged in the private practice of law by assisting his daughter at his wife’s administrative case, coaching his daughter in making manifestations or posing motions to the hearing officer, and preparing the questions that he prompted to his daughter (Decena vs. Malanyaon A.M. No. RTJ-10-2217, April 8, 2013).

Such membership would violate the constitutional provision on the discharge by members of the judiciary of administrative functions in quasi-judicial or administrative agencies. This does not mean, however, that judges should adopt an attitude of monastic insensibility or unbecoming indifference to the Provincial/City Committee on Justice. As incumbent judges, they form part of the structure of government. Even as non-members, Judges should render assistance to said Committees to help promote the laudable purposes for which they exist, but only when such assistance may be reasonably incidental to the fulfillment of their judicial duties. (In Re: Designation of Judge Rodolfo U. Manzano, A.M. No. 88-7-1861-RTC, Oct. 5, 1988)

Q: Respondent Judge Lelina was administratively charged for violation of Section 35, Rule 138 of the Rules of Court and Rule 5.07, Canon 5 of the Code of Judicial Conduct. He was then preventively suspended by the Court on account of an earlier administrative complaint filed charging him with harassment in connection with the criminal complaint for Rape and the complaint for Abduction with Rape and Slight Illegal Detention. He then filed a Motion for Early Resolution of the criminal case praying for a resolution in his favor. Subsequently he appealed to the Court to grant him the permission to practice law during the remainder of his preventive suspension or, if such cannot be granted, to consider him resigned from the judiciary. It turned out that before he filed the above-said Manifestation, Appeal

NOTE: Under Sec. 10(c), Section 10, Canon 4, a judge may engage in private business without the written permission of the Supreme Court (Borre v. Moya,A.M. No. 1765-CFI, Oct. 17, 1980).

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QUALITIES and Omnibus Motion, Judge Lelina engaged in the private practice of law. Did the judge commit any unethical act?

XPN: Section 15 of Canon 4 of the NCJC. Sec. 13, Canon 4, NCJC Judges and members of their families shall neither ask for nor accept, any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done by him or her in connection with the performance of judicial duties. Sec. 14, Canon 4, NCJC Judges shall not knowingly permit court staff or others subject to their influence, direction or authority, to ask for, or accept, any gift, bequest, loan or favor in relation to anything done, to be done or omitted to be done in connection with their duties or functions.

A: Yes. Since Section 35, Rule 138 of the Rules of Court and Section 11, Canon 4 of the New Code of Judicial Conduct for the Philippine Judiciary does not make any distinction in prohibiting judges from engaging in the private practice of law while holding judicial office, no distinction should be made in its application. In the present case, Judge Lelina having been merely suspended and not dismissed from the service, he was still bound under the prohibition. (Binalay v. Lelina Jr,A.M. No. RTJ-08-2132, July 31, 2009) Q: In an extrajudicial settlement of the estate of the late Juan Mayaman, the heirs requested Judge Maawain, a family friend, to go over the document prepared by a new lawyer before they signed it. Judge Maawain agreed and even acted as an instrumental witness. Did Judge Maawain engage in the unauthorized practice of law? Why? (2002 Bar Question)

This section is intended to assure that what the judge cannot do directly (soliciting gifts), may not be done indirectly through the use of employees or staff members. NOTE: Section 13 should be read in conjunction with Section 7(d) of R.A. 6713 (Code of Conduct and Ethical Standards for Public officials and Employee) which provides that, public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of money value from 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.

A: No. In the case of de Castro v. Capulong, 118SCRA 5 (1982), the Supreme Court held that a judge who merely acted as a witness to a document and who explained to the party waiving his rights of redemption over mortgaged properties the consequences thereof, does not engage himself in the practice of law. This appears to be more applicable to the case of Judge Maawain. He did not give professional advice in anticipation of litigation. He was just asked to review a deed of extrajudicial settlement of estate. He signed merely as an instrumental witness and not as a legal counsel. Besides, his act was an isolated act.

Q: Judge Ganay received law books worth fifty thousand pesos, cellular phones and monthly cellular phone prepaid cards from the property guardians of the late Rev. Fr. Aspiras, who was then the ward of the court. Further, he issued Orders directing the manager of the PNB, La Union Branch to draw checks amounting to thousands of pesos from the account of the late Rev. Fr. Aspiras

Sec. 12, Canon 4, NCJC Judges may form or join associations of judges or participate in other organizations representing the interests of judges.

A: Respondent Judge Ganay clearly fell short of the exacting standards set by the New Code of Judicial Conduct for the Philippine Judiciary. His acts constitute impropriety which the Court cannot allow. Respondent Judge Ganay’s act of issuing Orders to draw checks create the impression of impropriety and subjects the court to suspicion of irregularities in the conduct of the proceedings (Heirs of the late Rev. Fr. Jose Aspiras v.Judge Ganay, A.M. No. RTJ-07-2055, Dec. 17, 2009).

This rule recognizes the difference between membership in associations of judges and membership in associations of other legal professionals. While attendance at lavish events hosted by lawyers might create an appearance of impropriety, participation in judges-only organizations does not. Rules relating to prohibition against accepting gifts, bequests, or loans

Q: X was charged with grave threat before the sala of Judge Elias Lelina. During the pendency of the case, X offered a business partnership to the daughter of

GR: Sections 13 and 14 of Canon 4 of the NCJC.

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JUDICIAL ETHICS Judge Lelina who then accepted the same. Should the judge be disciplined?

b) By accepting a gift in consideration of the execution of an act which does not constitute a crime in consideration with the performance of his official duty. c) By refraining, from doing something which it is his official duty to do, in consideration of gift or promise (RPC, Art. 210).

A: Yes. Judges should not allow members of their family to accept gifts nor favor in relation to anything done, to be done, or omitted to be done by the judge in connection with the performance of his official duties. Here, the judge’s act of allowing his daughter to accept the business offer of X despite knowledge of the possible intention of the latter who has pending case in his sala is improper (Dulay v. Lelina Jr., A.M. No. RTJ-99-1516, July 14, 2005).

Anti-Graft and Corrupt Practices Act: Judges receiving gifts or other material benefits GR: Yes, the judge is liable criminally for directly or indirectly receiving gifts, presents or other pecuniary or material benefit for himself or for another under conditions provided in Section 2, pars. b and c of the law.

Sec. 15, Canon 4, NCJC Subject to law and to any legal requirements of public disclosure, judges may receive a token gift, award or benefit as appropriate to the occasion on which it is made, provided that such gift, award or benefit might not reasonably be perceived as intended to influence the judge in the performance of official duties or otherwise give rise to an appearance of partiality.

XPN: Unsolicited gifts or presents of small value offered or given as a mere ordinary token of gratitude or friendship according to local custom or usage (RA 3019, Section 14) NOTE: Under Section 16 Article XI of the 1987Constitution “No loan, guarantee or other form of financial controlled bank or financial institution to members of the Supreme Court during their tenure.

Judges are allowed to accept token gifts, awards, or benefits when given as a consequence of a special occasion.

It is a serious misconduct for a judge to receive money from a litigant in the form of loans which he never intended to pay back. Even if the judge intends to pay, it is an act of impropriety to take a loan from a party litigant. The judge could not be wholly free from bias in deciding a case where his lender is a party. A judge should always strive to be free from suspicion and all forms of improprieties (Ompoc v. Judge Torres, A.M. No. MTJ-86-11, Sept. 27, 1989).

Gifts and grants allowed from foreign countries 1.

2.

3.

The acceptance and retention by a public official or employee of a gift of nominal value tendered and received as a souvenir or mark of courtesy; The acceptance by a public official or employee of a gift in the nature of a scholarship or fellowship grant or medical treatment; or The acceptance by a public official or employee of travel grants or expenses for travel taking place entirely outside the Philippines (such as allowances, transportation, 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 office, branch or agency to which the judge belongs (Sec. 7[d], R.A. 6713).

NOTE: To ensure equality of treatment to all before the courts is essential to the due performance of the judicial office. As the guardians of justice, courts must adhere to the principle of equality. People expect the courts to be unaffected by differences in social status, degree of education and even physical abilities.

EQUALITY CANON 5 ENSURING EQUALITY OF TREATMENT TO ALL BEFORE THE COURTS IS ESSENTIAL TO THE DUE PERFORMANCE OF THE JUDICIAL OFFICE.

Indirect and direct bribery of judges

A judge must be able to render substantial justice and maintain public confidence in the judicial system, by being aware of the diversity in society. With that awareness, a judge should not yield to first impression, reach hasty conclusions or prejudge matters (Castillo v. Judge Juan, 62 SCRA 124).

Acceptance of gifts given by reason of the office of the judge is indirect bribery (RPC, Art. 211) Acts punishable in direct bribery are as follows: a) By agreeing to perform an act which constitute a crime in connection with his official duties for a consideration.

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QUALITIES Q: Judge Tormis made a comment in a certain case to the effect that the same should be dismissed as the act complained of was already decriminalized by a special law. Thereafter, Judge Navarro, who previously handled the case before he was appointed as a judge, barged into the office of Judge Tormis telling to the staff that their judge does not know her law. Judge Tormis then retaliated by saying that to her, the office of Judge Navarro does not exist. Are the judges guilty of conduct unbecoming of a judge?

Sec. 1, Canon 5, NCJC Judges shall be aware of and understand diversity in society and differences arising from various sources, including, but not limited to, race, color, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status, and other like causes. To render substantial justice and maintain public confidence in the judicial system, judges are expected to be aware of the diversity in society that results from an increased worldwide exchange of people and ideas.

A: Yes. Judges, being dispensers of justice should not act in a way that would cast suspicion in order to preserve faith in the administration of justice. They should so behave to avoid poor public impression on the judiciary. Here, the judges act of fighting each other by uttering derogatory remarks against each other is a conduct unbecoming of a judge for which they should be disciplined as their fight has impaired the image of the judiciary (Navarro v. Tormis, A.M. No. MTJ-00-1337, Apr. 27, 2004).

NOTE: Judges should be mindful of the various international instruments and treaties ratified by the Philippines, which affirm the equality of all human beings and establish a norm of non-discrimination without distinction as to race, sex, language, or religion. Judges should not yield to first impression, reach hasty conclusions or prejudge matters. They have a duty to ensure that the minority status of a party plays no part in their decisions.

Q: Atty. Quinto was the defense counsel in a criminal case. In his verified complaint, he alleged that during the hearing, he manifested that he was waiving the presentation of evidence for the accused. Judge Vios then allegedly got angry, shouted and scolded him, stating that the defense had no right to waive the presentation of evidence. He did not even listen to Atty. Quinto’s explanation and, thereafter, compelled the latter to withdraw his appearance as counsel of the accused, under pain of contempt. In the presence of the complainant, Judge Vios appointed a counsel deofficio. May Judge Vios be held administratively liable for compelling the lawyer to withdraw as counsel for the accused under pain of contempt?

Sec. 2, Canon 5, NCJC Judges shall not, in the performance of judicial duties, by words or conduct, manifests bias or prejudice towards any person or group on irrelevant grounds. Magistrates of law must comport themselves at all times in such a manner that their conduct, can withstand the highest level of public scrutiny. Judges should avoid private remarks, hasty conclusions, or distasteful jokes that may give even erroneous impressions of prejudice and lead the public to believe that cases before them are being prejudged. Sec. 3, Canon 5, NCJC Judges shall carry out judicial duties with appropriate consideration for all persons, such as the parties, witnesses, lawyers, court staff and judicial colleagues, without differentiation on any irrelevant ground, immaterial to the proper performance of such duties.

A: Yes. A judge should avoid unconsciously falling into the attitude of mind that the litigants are made for the courts, instead of the courts for the litigants. Here, the judge should be held liable for misconduct when he threatened to punish complainant for contempt of court if he would refuse to withdraw his appearance, as counsel for the accused, when the latter insisted on waiving the presentation of the evidence for the defense (Atty. Quinto v. Judge Vios, A.M. No. MTJ-041551, May 21, 2004).

As arbiters of the law, judges should be conscientious, studious, courteous, patient and punctual in the discharge of their judicial duties, recognizing that time of litigants, witnesses and counsel is of value. Judges should act with decorum toward jurors, parties, court staff, spectators, and alike.

Sec. 4, Canon 5, NCJC Judges shall not knowingly permit court staff or others subject to his or her influence, direction or control to differentiate between persons concerned, in a matter before the judge, on any irrelevant ground.

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JUDICIAL ETHICS woman especially child of tender years would exactly remember step by step the sexual intercourse in the hands of the maniacal beast. Hence, all the questions asked are excessive (People v. Boras, G.R. No. 127495, Dec. 22, 2000).

Duties of judges under this section 1.

2.

To ensure that court personnel under their supervision do not discriminate by dispensing special favors or disclosing confidential information to any unauthorized person, regardless of whether such information came from authorized or unauthorized sources; and

COMPETENCE AND DILIGENCE CANON 6 COMPETENCE AND DILIGENCE ARE PREREQUISITES TO THE DUE PERFORMANCE OF JUDICIAL OFFICE.

To organize their courts to ensure the prompt and convenient dispatch of business and should not tolerate misconduct by clerks, sheriffs and other assistants who are sometimes prone to expect favors or special treatment due to their professional relationship with the judge.

A judge upon assumption to office, becomes the visible representation of law and of justice, hence, the Constitution (Section 7 (3), Article VIII), prescribes that he must be a person of proven competence as a requisite of his membership in the judiciary.

NOTE: All personnel involved in the dispensation of justice should conduct themselves with a high degree of responsibility (Mataga v. Rosete, A.M. No.MTJ-03-1488, Oct. 13, 2004).

A judge should be the epitome of competence, integrity and independence to be able to render justice and uphold public confidence in the legal system. He must be conversant with basic legal principles and well-settled doctrines. He should strive for excellence and seek the truth with passion (Rino v. Judge Cawaling, A.M. No. MTJ-02-1391, June 7, 2004).

Sec. 5, Canon 5, NCIC Judges shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on irrelevant grounds, except such as are legally relevant to an issue in proceedings and may be the subject of legitimate advocacy.

NOTE: As members of the judiciary, judges ought to know the fundamental legal principles; otherwise, they are susceptible to administrative sanction for gross ignorance of the law (Heirs of Piedad v.Estrella, A.M. No. RTJ-09-2170, Dec. 16, 2009).

Judges should conduct proceedings in court with dignity and in a manner that reflects the importance and seriousness of proceedings. They should maintain order and proper decorum in the court (1989 Code of Judicial Conduct, Rule 3.03, Canon 3). Judges have the duty to prevent lawyers from abusing witnesses with unfair treatment.

Q: Judge Ramos was charged with gross misconduct, dishonesty, gross ignorance of the law, arbitrary detention, incompetence, grave abuse of discretion, and conduct prejudicial to the best interest of the service allegedly for erroneously issuing a warrant of arrest against Bayaca. It was alleged that Bayaca was convicted by Judge Ramos in a criminal case for arson through reckless imprudence and imposed upon him the penalty of imprisonment, with all the accessory penalties imposed by law in addition to the payment of costs and damages. On appeal, the RTC deleted the penalty of imprisonment. However, Judge Ramos subsequently issued a warrant of arrest and Commitment on Final Sentence which led to complainant’s incarceration at the Solano District Jail from August 8 to 28, 2006. In his comment, the judge clarified that his issuance of the warrant of arrest against Bacaya was a mistake done in good faith and that the same was just a simple negligence. Should the judge be disciplined?

As courts are expected to ensure equality, any lawyer who makes an insensitive or demeaning comment in court should be admonished. Q: During the hearing of a case for statutory rape filed against X, the lawyer is asking the 6-year-old victim to relate exactly and step by step the sexual intercourse between her and the accused. The lawyer is also asking questions whether at the time of the alleged rape, the accused’s penis was hard, and whether at the time they were caught, the accused was still pushing and pulling his penis inside her vagina. Should the judge allow such questions? A: No. The judge shall require lawyers to refrain from making abusive and uncalled for queries. Here, the fact that the victim of rape is a child of tender years, there is more reason to require the lawyer to be tactful. No UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

A: Yes. The judge was inexcusably negligent when he issued a Warrant of Arrest and Commitment to Final

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QUALITIES Sentence despite the deletion by the appellate court of that portion of the judgment imposing the penalty of imprisonment. In the performance of his duties, Judge Ramos failed to observe that diligence, prudence and circumspection which the law requires in the rendition of any public service. If only Judge Ramos had exercised the requisite thoroughness and caution, he would have noted not only the modification of the monetary awards by the appellate court, but also the deletion of the penalty of imprisonment upon which the Warrant of Arrest and Commitment to Final Sentence that he signed was based (Bayaca v. Judge Ramos,A.M. No. MTJ-07-1676, Jan. 29, 2009).

held guilty of the said charge. He moved for an extension of time to file a motion for reconsideration. Despite the extension of time given however, Judge Limsiaco failed to file his motion for reconsideration and the required explanation thrice. In another complaint against him for Delay in the Disposition of a Case, the OCA issued an order for him to file a comment for the administrative complaint. Is the respondent judge administratively liable for unethical conduct and gross inefficiency under the provisions of the New Code of Judicial Conduct, specifically, Sections 7 and 8 of Canon 1, and Section 5 of Canon 6? A: Yes. A judge is the visible representation of the law, and more importantly of justice; he or she must, therefore, be the first to follow the law and weave an example for the others to follow. For a judge to exhibit indifference to a resolution requiring him to comment on the accusations in the complaint thoroughly and substantially is gross misconduct, and may even be considered as outright disrespect for the Court. The office of the judge requires him to obey all the lawful orders of his superiors. After all, a resolution of the Supreme Court is not a mere request and should be complied with promptly and completely. Such failure to comply accordingly betrays not only a recalcitrant streak in character, but has likewise been considered as an utter lack of interest to remain with, if not contempt of the judicial system. A resolution of the Supreme Court requiring comment on an administrative complaint against officials and employees of the judiciary should not be construed as a mere request from the Court. Nor should it be complied with partially, inadequately or selectively. Respondents in administrative complaints should comment on all accusations or allegations against them in the administrative complaints because it is their duty to preserve the integrity of the judiciary.

Sec.1, Canon 6, NCJC The judicial duties of a judge take precedence over all activities. Duties of a judge under this section 1.

2.

A judge must perform his judicial duties with regard to a case where he is not disqualified to do so and, may not divest himself of such case if he is not so disqualified; and A judge shall not inhibit himself simply to avoid sitting on difficult or controversial cases.

Q: An administrative case against Judge Calderon was filed for incurring leaves of absence for almost a straight period of 3 years. In his comment, he claimed that he was suffering from a lingering illness of malignant hypertension which claim was supported by medical certificates prepared by his personal doctor. However, when the court physician conducted some tests, the same contradicted the diagnosis given by the judge’s personal doctor. Is Judge Calderon guilty of gross misconduct? A: Yes. A judge shall be cautious of his court duties. Here, the judge should have been aware that, in frequently leaving his station, he has caused great disservice to many litigants and has denied them speedy justice (Re: Leaves of Absence Without Approval of Judge Eric Calderon, Municipal Trial Court Judge of Calumpit, Bulacan, A.M. No. 98-8-105-MTC, Jan. 26, 1999).

Moreover, the Court should not and will not tolerate future indifference of respondents to administrative complaints and to resolutions requiring comment on such administrative complaints. Under the circumstances, the conduct exhibited by Judge Limsiaco constitutes no less than clear acts of defiance against the Court’s authority. His conduct also reveals his deliberate disrespect and indifference to the authority of the Court, shown by his failure to heed our warnings and directives. Judge Limsiaco’s actions further disclose his inability to accept our instructions. Moreover, his conduct failed to provide a good example for other court personnel, and the public as well, in placing significance to the Court’s directives and the importance of complying with them (Inoturan, v.Limsiaco, Jr., A.M. No. MTJ-01-1362, Feb. 22, 2011).

Q: Judge Limsiaco was charged with gross ignorance of the law and procedure and violations of the Code of Judicial Conduct when it was established by the records and by his own admission that he decided an ejectment case before his sala more than two (2) years after it was declared submitted for resolution. Due to his delay of rendering the decision, he was

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JUDICIAL ETHICS money entrusted to him by litigants in connection with a case pending in his court constitutes gross misconduct. Moreover, the judge violated Circular No. 50-95 which provides that, fiduciary collections should be deposited with the Land Bank of the Philippines. Because of his actuations, the image of the judiciary was impaired (De Pacete v. Judge Garillo, A.M. No. MTJ-03-1473, Aug. 20, 2003).

Sec. 2, Canon 6, NCJC Judges shall devote their professional activity to judicial duties, which include not only the performance of judicial functions and responsibilities in court and the making of decisions, but also other tasks relevant to the judicial office or the court’s operations.

Judges should return records upon retirement Violations of this section often involve a failure to keep records or handle funds in compliance with court rules.

Since the proper and efficient management of the court is the responsibility of the judge, he is the one directly responsible for the proper discharge of official functions. Thus, a judge is obliged to return to the court the records of the cases filed in his sala upon his retirement (Office of the Court Administrator v. Retired Judge Carteciano, A.M. No. MTJ-07-1664, Feb. 18, 2008).

Q: Judge Daguman was charged with neglect of duty in failing to retain a copy and to register with the Local Civil Registrar a marriage contract. In his comment, the judge explained that his failure to do so was occasioned by circumstances beyond his control. He averred that after the wedding ceremony, the copies of the marriage contract were left on top of his desk in his private office where the ceremony was held but after few days, when he gathered all the documents relating to the marriage, the copies were already missing. He also explained that he was not able to inform the parties about the fact of loss as they were already out of the country. Should the judge be disciplined?

Sec. 3, Canon 6, NCJC Judges shall take reasonable steps to maintain and enhance their knowledge, skills and personal qualities necessary for the proper performance of judicial duties, taking advantage for this purpose the training and other facilities which should be made available, under judicial control, to judges.

A: Yes. A judge is charged with extra care in ensuring that records of the cases and official documents in his custody are intact. Moreover, judges must adopt a system of record management, and organize their dockets in order to bolster the prompt and efficient dispatch of business. Here, the circumstances show that the loss of the documents was occasioned by the carelessness on the part of the judge. The judge should not have left such important documents in his table to be gathered only after few days, instead, he should have devised a filing system in his court so as to avoid such incident (Beso v.Daguman, A.M. No. MTJ-991211, Jan. 28, 2000).

Service in the judiciary means a continuous study and research on the law from beginning to end. Judges are regarded as persons learned in the law. “Ignorance of the law excuses no one” has special application to judges. Though good faith and absence of malice or corruption are sufficient defenses, such does not apply where the issues are so simple and the applicable legal principles evident and basic as to be beyond possible margin of error (Corpus v.Ochotoresa, A.M. No. RTJ 04-1861, July 30, 2004).

Q: X charged Judge Garillo with dishonesty and corrupt practices for allegedly requiring the former to deposit with the latter a sum of money in connection with a pending case in the latter’s sala but failed to give the deposited sums of money to the adverse party. It was also alleged that when X demanded the return of money, the judge failed to return the same despite his promise. Is the judge guilty of serious misconduct?

One who accepts the exalted position of a judge owes the public and the Court the duty to maintain professional competence at all times. When a judge displays an utter lack of familiarity with the rules, he erodes the confidence of the public in the courts. A judge owes the public and the Court the duty to be proficient in the law and is expected to keep abreast of laws and prevailing jurisprudence. Ignorance of the law by a judge can easily be the mainspring of injustice (Villanueva v.Judge Buaya, A.M. No. RTJ-08-2131, Nov. 22, 2010).

A: Yes. A judge should always be a symbol of rectitude and propriety, and should always comport himself in a manner that will raise no doubt whatsoever about his honesty. Here, the judge’s act of misappropriating the UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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QUALITIES Q: Judge Delos Santos averred that Judge Mangino of the MTC Tarlac approved the bail bond for provisional liberty of the accused Santos who was arrested and whose criminal cases were pending in Angeles City. It was also made to appear from the contents of the said bond that the accused appeared before notary public Ancanan in Makati City. According to the accused, she never went to Tarlac and appeared before said Judge Mangino. She also alleged that she never went to Makati City and appeared before Notary Public Ancanan. Is Judge Mangino guilty of grave misconduct?

protest was already properly filed (Enojas v. Judge Gacott, Jr., A.M. No. RTJ-99-1513, Jan. 19, 2000). Sec. 4, Canon 6, NCJC Judges shall keep themselves informed about relevant developments of international law, including international conventions and other instruments establishing human rights norms.

Norms of international law has become the concern of judges because they form part of legal standards by which their competence and diligence required by the New Code of Judicial Conduct are to be measured.

A: Yes. Judges should be diligently acquainted with the law and jurisprudence. As an advocate of justice and a visible representation of the law, a judge is expected to keep abreast with and be proficient in the application and interpretation of the law. Here, by mere glancing at the bail bond application, the judge ought to know that he had absolutely no authority or jurisdiction to approve the bail bond of the accused as the case was pending with another court. By approving the bail bond application, the judge failed to exert such conscientiousness, studiousness, and thoroughness expected and demanded of a judge (Judge de los Santos v. Judge Mangino,A.M. No. MTJ-03-1496, July 10, 2003).

Sec. 5, Canon 6, NCJC Judges shall perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly and with reasonable promptness. A judge may be subject to an administrative fine for inefficiency, neglect, and unreasonable delay in elevating the records of a civil case to the Court of Appeals. A delay of three years in the transmission of court records to the appellate court, where a period of 30 days is required, is inexcusable (Pataleon v. Guidez,A.M. No. RTJ-00-1525, Jan. 25, 2000).

Q: Judge Gacott Jr. dismissed an election case on the ground of non-payment of docket fees, although the case had been previously admitted and was deemed properly filed by the original Judge (who inhibited himself due to relationship to one of the parties). Judge Gacott issued the dismissal order relying on a case (Manchester v.CA) which states that - a case is deemed commenced only upon the payment of the proper docket fees. To his opinion, the required fees in this case were not yet paid by the protestant. Enojas charged him with gross ignorance of the law. Is Judge Gacott Jr. guilty of gross ignorance of the law?

Q: The records disclose that on February 21, 1994, Cabasares filed a Complaint for Malicious Mischief against a certain Rodolfo Hebaya. The case was docketed as Criminal Case No. 8864 and subsequently assigned to the branch of respondent Judge. As early as February 27, 2002, the case had been submitted for decision, but respondent judge did not pen a decision. He was charged with violation of Section 15 (1), Article VIII of the Constitution and Canon 3, Rule 3.05 of the Code of Judicial Conduct. The judge contend that it have escaped his mind.

A: Yes. A judge is duty bound to adhere to, and apply the recent jurisprudence, and he cannot feign ignorance thereof, because he is required to be an embodiment of, among other things, judicial competence. Here, the ruling relied upon by the judge does not apply to election cases as in the latter case the filing fee is fixed and the claim for damages, to which the docket fess shall be made to apply, is merely ancillary to the main cause of action and is not even determinative of the court’s jurisdiction. It must also be noted that in this case, the original judge already made an order that from the deposit given by the protestant for the expenses of reopening the questioned ballots, an amount shall be allocated for the payment of the required fees. Thus, the election

A: Judges should meticulously observe the periods prescribed by the Constitution for deciding cases because failure to comply with the said period transgresses the parties’ constitutional right to speedy disposition of their cases. Thus, failure to decide cases within the ninety (90)-day reglementary period may warrant imposition of administrative sanctions on the erring judge. However, the Court is not unmindful of circumstances that justify the delay in the disposition of the cases assigned to judges. When a judge sees such circumstances before the reglementary period ends, all that is needed is to simply ask the Court, with the appropriate justification, for an extension of time within which to decide the case. Evidently,

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JUDICIAL ETHICS respondent Judge failed to do any of these options. Since the judge retired from service he was only fined (Antonio Y. Cabasares v. Judge Filemon A. Tandinco, Jr. Municipal Trial Court in Cities, 8th Judicial Region, Calbayog City, Western Samar, A.M. No. MTJ-111793, Oct. 19, 2011).

degree. For a judge to determine the fitness or competence of a lawyer primarily on the basis of his alma mater is clearly an engagement in an argumentum ad hominem. As a judge, he must address the merits of the case and not on the person of the counsel. Judges must be that even on the face of boorish behavior from those they deal with, they ought to conduct themselves in a manner befitting gentlemen and high officers of the court (Atty. Mane v. Judge Belen, A.M. No.RTJ-08-2119, June 30, 2008).

Flag lawyer Refers to a lawyer of non-governmental organizations (NGOs) and people’s organizations (POs) who by the nature of his work already render free legal aid to indigent and pauper litigants. (BAR MATTER No. 2012,Feb. 10, 2009, Section 4a(iii))

Q: Judge Ante Jr. was charged with conduct unbecoming of a judge. It was alleged that when the court employee placed the docket book on top of the filing cabinet, the same fell on the floor causing loud sound. Unexpectedly, the judge shouted saying “why did you throw the docket book? You get out of here, punyeta, we don’t need you!” The judge also threw a monobloc chair at the court employee. Should the judge be disciplined?

Sec. 6, Canon 6, NCJC Judges shall maintain order and decorum in all proceedings before the court and be patient, dignified and courteous in relation to litigants, witnesses, lawyers and others with whom the judge deals in an official capacity. Judges shall require similar conduct of legal representatives, court staff and others subject to their influence, direction or control.

A: Yes. The judge, for shouting invectives and hitting complainant with a chair displayed a predisposition to use physical violence and intemperate language which reveals a marked lack of judicial temperament and self-restraint - traits which, aside from the basic equipment of learning in the law - are indispensable qualities of every judge (Briones v. Judge Ante Jr., A.M. No.MTJ-02-1411, Apr. 11, 2002).

Besides possessing the requisite learning in the law, a magistrate must exhibit that hallmark judicial temperament of utmost sobriety and self-restraint which are indispensable qualities of every judge (Rodriguez v. Bonifacio, A.M. No. RTJ-99-1510, Nov. 6, 2000).

Sec. 7, Canon 6, NCJC Judges shall not engage in conduct incompatible with the diligent discharge of judicial duties.

Q: Judge Belen was charged with conduct unbecoming of a judge allegedly for humiliating, demeaning and berating a young lawyer who appeared in his sala. It was alleged that when the judge learned that the lawyer was an alumnus of MCQU and not of UP, the judge made the following statement “you’re not from UP”. Then you cannot equate yourself to me because there is a saying and I know this, not all law students are created equal, not all law schools are created equal, not all lawyers are created equal despite what the Supreme Being stated that we all are created equal in His form and substance.” Should the judge be disciplined?

Duty of the judge under this section A judge shall not accept duties that will interfere with his devotion to the expeditious and proper administration of his official functions NOTE: When a judge, along with two other people, acted as real estate agents for the sale of a parcel of land for which he agreed to give a commission of P100,000 to each of his companions, and after the transaction was completed only gave the complainants P25,000 each, the high Court held that the judge violated the section of the prior Code of Judicial Conduct (Catbagan v. Barte, A.M. No. MTJ-02-1452, Apr. 6, 2005).

A: Yes. The judge’s sarcastic, humiliating, threatening and boastful remarks to a young lawyer are improper. A judge must be aware that an alumnus of a particular law school has no monopoly of knowledge of the law. By hurdling the Bar Examinations, taking of the Lawyer’s oath, and signing of the Roll of Attorneys, a lawyer is presumed to be competent to discharge his functions and duties as, inter alia, an officer of the court, irrespective of where he obtained his law UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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DISCIPLINE OF MEMBERS OF THE JUDICIARY DISCIPLINE OF THE MEMBERS OF THE JUDICIARY

Object of impeachment

Power to discipline members of the bench

The object of impeachment is solely to determine whether or not the official is worthy of the trust conferred upon him/her. It is not determination of criminal guilt or innocence as in criminal case (Ibid.).

The Supreme Court shall have the administrative supervision over all courts and the personnel (1987 Consitution, Section 6, Art. VIII).

The nature of impeachment proceedings against SC justices is “Sui Generis” or “a class of its own”

The Court en banc has the power to discipline all judges of lower courts including justices of the Court of Appeals (1987 Constiution, Section 11, Art. VIII).

Grounds for impeachment

Disbarment of judges and justices

1. 2. 3. 4. 5.

Judges and justices, being lawyers, may also be disbarred, if found guilty of certain crimes and/or other causes for disbarment under the Rules of Court. Justices of the Supreme Court however may not be disbarred unless and until they shall have been first impeached in accordance with the Constitution.

Treason Bribery Other High Crimes Graft and Corruption Betrayal of Public Trust (1987 Constitution, Sec. 2 Art. XI)

Impeachable officers 1. 2. 3. 4. 5.

NOTE: While it is the duty of the court to investigate and determine the truth behind every matter in complaints against judges and other court personnel, it is also their duty to see to it that they are protected and exonerated from baseless administrative charges. The Court will not shirk from its responsibility of imposing discipline upon its magistrates, but neither will it hesitate to shield them from unfounded suits that serve to disrupt rather than promote the orderly administration of justice (Ocenar v. Judge Mabutin, A.M. No. MTJ 05- 1582, Feb. 28, 2005).

The President Vice-President Members of the Supreme Court Members of the Constitutional Commissions Ombudsman

All other public officers and employees may be removed from office as provided by law, but not by impeachment (1987 Constitution, Sec. 2 Art. XI). The Philippine Congress holds the sole power in impeachment process. 1. House of Representatives - initiates all cases of impeachment. 2. Senate – tries and decides on all the cases.

A judge may be disciplined for acts committed before his appointment to the judiciary It is settled that a judge may be disciplined for acts committed prior to his appointment to the judiciary. In fact, even the new Rule itself recognizes this, as it provides for the immediate forwarding to the Supreme Court for disposition and adjudication of charges against justices and judges before the IBP, including those filed prior to their appointment to the judiciary (Heinz Heck vs. Judge Anthony E. Santos, regional trial court, branch 19, Cagayan De Oro City A.M. No. Rtj-01-1657, 23 February 2004, en banc).

Who can file an impeachment complaint 1. 2.

Any member of the House of Representatives Any citizen with an endorsement of any member of the House of Representatives.

NOTE: When the President of the Philippines is impeached, the Chief Justice presides over the impeachment trial; in all other cases of impeachment, the Senate President presides.

Procedure of impeachment

DISCIPLINE OF THE MEMBERS OF THE SUPREME COURT

1. Impeachment 2. It is a constitutional process of removing public servants from office as an assurance against abusive officials in the country (Impeachment Primer, Official Gazette, 2012).

3. 4. 5.

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Initiate impeachment through filing of a verified complaint Include in Order of Business within 10 session days Referred to the proper committee within 3 session days Committee conducts hearing Committee votes UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

JUDICIAL ETHICS 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

If YES, the matter will be referred to the Plenary within 60 days. Plenary votes – at least 1/3 vote is required If at least 1/3 vote is attained, Resolution and Articles of Impeachment are referred to Senate House elects its prosecutors Senate as plenary body adopts its rules on impeachment Senate convenes as impeachment court Senate issues summons to respondent Respondent appears and files answer Senate receives testimonial and documentary evidence Senator-judges interpose questions Submission for voting (Convict or Acquit)

ETHICAL LESSONS FROM THE FORMER CHIEF JUSTICE CORONA’S IMPEACHMENT Grounds for impeachment against former Chief Justice Renato Corona 1. Betrayal of public trust through: a. Track record marked by partiality and subservience in cases involving the Arroyo administration from the time of his appointment as Supreme Court justice and until his dubious appointment as a midnight chief justice to the present. (Article I) b. Wanton arbitrariness and partiality in consistently disregarding the principle of res judicata in the cases involving the 16 newlycreated cities, and the promotion of Dinagat Island into a province. (Article V) c. Arrogating unto himself, and to a committee he created, the authority and jurisdiction to improperly investigate a justice of the Supreme Court for the purpose of exculpating him. Such authority and jurisdiction is properly reposed by the Constitution in the House of Representatives via impeachment. (Article VI) d. Partiality in granting a temporary restraining order (TRO) in favor of former president Gloria Macapagal-Arroyo and her husband Jose Miguel Arroyo in order to give them an opportunity to escape prosecution and to frustrate the ends of justice, and in distorting the supreme court decision on the effectivity of the TRO in view of a clear failure to comply with the conditions of the Supreme Court own TRO. (Article VII) e. Commission of graft and corruption when he failed and refused to account for the judiciary development fund (JDF) and special allowance for the judiciary (SAJ) collections. (Article VIII) 2. Culpable violation of the Constitution through: a. Failure to disclose to the public his statement of assets, liabilities, and net worth as required under Sec. 17, Art. XI of the 1987 Constitution (Article II) b. Failure to meet and observe the stringent standards under Art. VIII, Section 7 (3) of the Constitution that provides that [a] member of the judiciary must be a person of proven competence, integrity, probity, and independence in allowing the Supreme court to act on mere letters filed by a counsel which caused the issuance of flip-flopping decisions in final and executory cases; in creating an excessive entanglement with Mrs. Arroyo through her appointment of his wife to office; and in discussing with litigants

Fast track procedure for impeachment If an impeachment complaint or resolution is filed by at least one-third (1/3) of all members of the House, the Articles of Impeachment shall be sent to Senate for trial. Determination for conviction or acquittal Senators are expected to vote according to their conscience. The standard of proof required is NOT “proof beyond reasonable doubt” because it is not a criminal trial. Rather, it is a political process (Impeachment Primer, Official Gazette, 2012). Votes needed for conviction A vote of at least two-thirds (2/3) of all members of the Senate for any one article of impeachment. NOTE: 16 votes are required to convict on any article while 8 Negative votes can prevent conviction on any article.

Result of conviction Removal from office. The Senate can additionally impose penalty of disqualification from holding any office in the Philippine government. However, the party convicted shall nevertheless be subject to prosecution, trial, and punishment according to law. Criminal liability must be established by criminal trial (Impeachment Primer, Official Gazette, 2012).

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DISCIPLINE OF MEMBERS OF THE JUDICIARY

c.

regarding cases pending before the Supreme Court. (Article III) Blatant disregard of the principle of separation of powers by issuing a status quo ante order against the House of Representatives in the case concerning the impeachment of then Ombudsman Merceditas Navarro-Gutierrez (Article IV).

forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law. 2.

Reason for CJ Corona’s Impeachment He was convicted under Article II of the Articles of impeachment, which is the failure to disclose to the public his statement of assets, liabilities, and net worth as required under sec. 17, Art. XI of the 1987 Constitution, by a vote of 20-3.

Statements of Assets and Liabilities and Financial Disclosure. - All public officials and employees, except those who serve in an honorary capacity, laborers and casual or temporary workers, shall file under oath their Statement of Assets, Liabilities and Net Worth and a Disclosure of Business Interests and Financial Connections and those of their spouses and unmarried children under eighteen (18) years of age living in their households. The Statements of Assets, Liabilities and Net Worth and the Disclosure of Business Interests and Financial Connections shall be filed by: xxx (2) 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.

NOTE: It is the "obligation" of an employee to submit a sworn statement, as the "public has a right to know" the employee's assets, liabilities, net worth and financial and business interests. Hence, a court interpreter who failed to include in her SALN rental payments she received from a market stall was dismissed from service (Rabe v. Flores, A.M. No. P-97-1247, May 14, 1997). The Senator judges ruled that the law applies to all, including the Chief Justice of the Philippines, thus, his failure to include his dollar accounts in his SALN warrants his impeachment from office.

Q: Is the Law on Secrecy of Foreign Currency Deposit Account (FCDA) a defense in failing to include a dollar deposit in a SALN? A: No. The issue is not the conflict between the FCDA requiring secrecy of foreign currency deposits and the disclosure required by the SALN law, but the Constitution which requires public officials to declare their assets and does not distinguish between peso and foreign accounts (Senator Judge Pangilinan).

Basis for the public’s right to inquire upon the statement of assets and liabilities of public officers The postulate of public office is a public trust, institutionalized in the Constitution to protect the people from abuse of governmental power, would certainly be mere empty words if access to such information of public concern is denied.

The Supreme Court in one case said that the FCDA cannot be used as a haven for the corrupt and the criminals. To interpret it in the manner that the Chief Justice would want … is to say that the law could be used as a haven to hide proceeds of criminal acts (Senator Judge Drilon).

The right to information (Section 7, Article III of Constitution) goes hand-in-hand with the constitutional policies of full public disclosure and honesty in the public service. It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in government (Valmonte v. Belmonte, Jr., 252 Phil. 264, February 13 1989).

Mandate of the Chief Justice to disclose his statement of assets and Lliabilities 1.

R.A. 6713 - Section 8. Statements and Disclosure. Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households.

1987 Constitution - Section 17. A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed

Established limitations to the right to information, with its companion right of access to official records 1.

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National security information

matters

and

intelligence

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

JUDICIAL ETHICS 2. 3. 4.

Trade secrets and banking transactions Criminal matters Other confidential information such as confidential or classified information officially known to public officers and employees by reason of their office and not made available to the public as well as diplomatic correspondence, closed door Cabinet meetings and executive sessions of either house of Congress, and the internal deliberations of the Supreme Court.

The integrity of the Judiciary rests not only upon the fact that it is able to administer justice, but also upon the perception and confidence of the community that the people who run the system have administered justice. In order to create such confidence, the people who run the judiciary, particularly judges and justices, must not only be proficient in both the substantive and procedural aspects of the law, but more importantly, they must possess the highest integrity, probity, and unquestionable moral uprightness, both in their public and in their private lives. Only then can the people be reassured that the wheels of justice in this country run with fairness and equity, thus creating confidence in the judicial system (Tan vs. Pacuribot, A.M. No. RTJ-061982, December 14, 2007).

Probity It is the uncompromising adherence to the highest principles and ideals or impeachable integrity (Webster's 3rd New International Dictionary).

DISCIPLINE OF LOWER COURT JUDGES AND JUSTICES OF THE COURT OF APPEALS AND SANDIGANBAYAN

Importance of probity as a quality of a magistrate Canons 3 and 4 of the new Code of Judicial Conduct mandate, respectively, that “judges shall ensure that not only is their conduct above reproach, but that it is perceived to be so in the view of the reasonable observer” and that “judges shall avoid improprieties and the appearance of impropriety in all of their activities.” These very stringent standards of decorum are demanded of all magistrates and employees of the courts. As such, those who serve in the judiciary, particularly justices and judges, must not only know the law but must also possess the highest degree of integrity and probity, and an unquestionable moral uprightness both in their public and private lives (Veloso vs. Caminade, A.M. No. RTJ- 01-1655, July 8, 2004).

The acts of a judge in his judicial capacity are not subject to disciplinary action. In the absence of fraud, malice or dishonesty in rendering the assailed decision or order, the remedy of the aggrieved party is to elevate the assailed decision or order to the higher court for review and correction. However, an inquiry into a judge’s civil, criminal and/or administrative liability may be made after the available remedies have been exhausted and decided with finality (Republic v. Caguioa, A.M. No. RTJ-07-2063, June 26, 2009). Institution of proceedings for the discipline of judges Proceedings for the discipline of judges of regular and special courts and justices of the Court of Appeals and the Sandiganbayan may be instituted: 1. Motu proprio by the Supreme Court; 2. Upon a verified complaint filed before the Supreme Court supported by: a. Affidavit of persons who have personal knowledge of the facts alleged therein; or b. Documents which may substantiate said allegations. 3. Anonymous complaint supported by public records of indubitable integrity filed with the Supreme Court.

Integrity It is a steadfast adherence to a strict moral or ethical code. It is honesty and honorableness put into one. Observance of integrity in the judiciary In the Judiciary, moral integrity is more than a cardinal virtue, it is a necessity. The exacting standards of conduct demanded from judges are designed to promote public confidence in the integrity and impartiality of the judiciary. When the judge himself becomes the transgressor of the law which he is sworn to apply, he places his office in disrepute, encourages disrespect for the law and impairs public confidence in the integrity of the judiciary itself (Lachica vs Tormis, A.M. No. MTJ-05-1609, September 20, 2005).

Form and content of the complaint The complaint shall be in writing and shall state clearly and concisely the acts and omissions constituting violations of standards of conduct prescribed for judges by law, the Rules of Court, or the Code of Judicial Conduct.

Importance of maintaining the confidence of the people upon the judiciary

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within the parameters of tolerable misjudgment. When the law or the rule is so elementary, not to be aware of it or to act as if one does not know it constitutes gross ignorance of the law. A judge is expected to keep abreast of the developments and amendments thereto, as well as of prevailing jurisprudence. Ignorance of the law by a judge can easily be the mainspring of injustice. In the absence of fraud, dishonesty or corruption, the acts of a judge in his judicial capacity are not subject to disciplinary action. However, the assailed judicial acts must not be in gross violation of clearly established law or procedure, which every judge must be familiar with (Sps. Lago v. Judge Abul, Jr., A.M. No. RTJ-10-2255, Jan. 17, 2011).

Grounds for discipline of judges 1. Serious Misconduct – implies malice or wrongful intent, not mere error of judgment. Judicial acts complained of: a. Must be corrupt or inspired by an intention to violate the law; or b. Were in persistent disregard for well-known legal rules. NOTE: There is misconduct when there is reliable evidence showing that judicial actions are corrupt or inspired by intent to violate the law or in persistent disregard of legal rules.

2. Inefficiency – implies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence and circumspection which the law requires in the rendition of any public service.

Q: Santiago and Sanchez were complainants in two different criminal cases before the MTC of Bulacan and the RTC of Pampanga respectively. The suspects in each of the criminal cases were caught and detained by authorities. However, both suspects were released by order of Judge Jovellanos of MCTC Pangasinan. The complainants questioned both Orders for Release, alleging that the requirements for the bail bond had not been fulfilled and that the said judge had no jurisdiction to order the release. Is Judge Jovellanos guilty of gross incompetence and gross ignorance of the law?

Q: Should a judge be held administratively liable for ignorance of the law for granting bail to an accused in a criminal case without the requisite bail hearing, and despite the fact that there was an eyewitness to the murder who made a positive identification of the accused? A: Yes. It is already settled that when a judge grants bail to a person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment without conducting the required bail hearing, he is considered guilty of ignorance or incompetence the gravity of which cannot be excused by a claim of good faith or excusable negligence. When a judge displays an utter unfamiliarity with the law and the rules, he erodes the confidence of the public in the courts. A judge owes the public and the court the duty to be proficient in the law and is expected to keep abreast of laws and the prevailing jurisprudence. Ignorance of the law by a judge can easily be the mainspring of injustice (Grageda v. Judge Tresvalles, A.M. MTJ No. 04-1526, Feb. 2, 2004).

A: Yes. A judge should be acquainted with legal norms and precepts as well as with statutes and procedural rules. Unfamiliarity with the Rules of Court is a sign of incompetence. He must have the basic rules at the palm of his hands as he is expected to maintain professional competence at all times. Here, there are two defects in the Orders for Release signed by Judge Jovellanos. First, in both cases, the detainees had not registered the bailbond in accordance with the Rules of Criminal Procedure. One may not be given provisional liberty if the bailbond is not registered with the proper office. Secondly, Judge Jovellanos did not have jurisdiction to order the release of the detainees as the cases were not pending in his court and the suspects were not arrested within his jurisdiction (Santiago v. Judge Jovellanos, A.M. No. MTJ-00-1289, Aug. 1, 2000).

Q: Respondent judge failed to cause the raffle of an injunction case and failed to follow the procedural requirements in issuing a TRO and a writ of preliminary injunction as he issued them without prior notice to the defendant and without a hearing. Is he liable for gross ignorance of the law?

NOTE: Judges are not expected to be infallible; not every error or irregularity committed by judges in the performance of official duties is subject to administrative sanction. In the absence of bad faith, fraud, dishonesty, or deliberate intent to do injustice, incorrect rulings do not constitute misconduct and may give rise to a charge of gross ignorance of the law (Cruz v. Iturralde, A.M. No. MTJ-03-1775, Apr. 30, 2003).

A: Yes. Though not every judicial error bespeaks ignorance of the law or of the rules, and that, when committed in good faith, does not warrant administrative sanction, the rule applies only in cases

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JUDICIAL ETHICS Q: Cruz was the defendant in an ejectment case filed by the Province of Bulacan involving a parcel of land owned by the said province. A decision was rendered against Cruz. He then filed an appeal and several motions for reconsideration but Justice AlinoHormachuelos before whom the motions were filed subsequently denied all. Consequently, Cruz charged all the judges and justices with grave misconduct, gross inexcusable negligence, and rendering a void judgment. Should the judges be held liable for grave misconduct and gross ignorance of the law?

administrative charge of Gross Ignorance of the law/Gross Incompetence was filed against respondent Associate Enriquez. Is the filing of the administrative complaint against him proper? A: No. The remedy of the aggrieved party is not to file an administrative complaint against the judge, but to elevate the assailed decision or order to the higher court for review and correction. An administrative complaint is not an appropriate remedy where judicial recourse is still available, such as a motion for reconsideration, an appeal, or a petition for certiorari, unless the assailed order or decision is tainted with fraud, malice, or dishonesty.

A: No. The Court has consistently held that judges will not be held administratively liable for mere errors of judgment in their rulings or decisions absent a showing of malice or gross ignorance on their part. Bad faith or malice cannot be inferred simply because the judgment is adverse to a party. To hold a judge administratively accountable for every erroneous ruling or decision he renders, assuming that he has erred, would be nothing short of harassment and would make his position unbearable. Here, the fact that the judge or justices rendered a decision not favorable to Cruz is not enough to make them liable for grave misconduct (Cruz v. Justice AlinoHormachuelos et. al., A.M. No. CA-04-38, Mar. 31, 2004).

The failure to interpret the law or to properly appreciate the evidence presented does not necessarily render a judge administratively liable. A judicial officer cannot be called to account in a civil action for acts done by him in the exercise of his judicial function, however erroneous. In the words of Alzua and Arnalot v. Johnson, “it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself." This concept of judicial immunity rests upon consideration of public policy, its purpose being to preserve the integrity and independence of the judiciary. This principle is of universal application and applies to all grades of judicial officers from the highest judge of the nation and to the lowest officer who sits as a court (Santiago III v. Justice Enriquez, Jr. A.M. No. CA-09-47-J, Feb. 13, 2009).

Disciplinary and criminal actions not a substitute for judicial remedy Disciplinary and criminal actions against a judge, are not complementary or suppletory of, nor a substitute for, judicial remedies, whether ordinary or extraordinary. Resort to and exhaustion of judicial remedies are prerequisites for the taking of other measures against the persons of the judges concerned, whether of civil, administrative, or criminal nature. It is only after the available judicial remedies have been exhausted and the appellate tribunals have spoken with finality that the door to an inquiry into his criminal, civil, or administrative liability may be said to have opened, or closed (Maquiran v. Grageda, A.M. No. RTJ-04-1888, Feb. 11, 2005).

Classifications of administrative charges 1. Serious 2. Less serious 3. Light NOTE: Administrative penalties imposed on judges are both punitive and corrective (2011 Bar Question).

Q: Santiago’s Petition for Reconstitution of Lost/Destroyed Original Certificate of Title was granted by the Quezon City RTC. The Republic of the Philippines through the Office of the Solicitor General appealed the decision to the Court of Appeals the case of which was raffled to the Division where Justice Enriquez was Chairperson. The special division reversed and set aside the Decision of the Quezon City RTC. Motion for Reconsideration having been denied, complainant filed the present complaint before the SC. Pending the decision of the SC, an UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Serious charges 1. 2. 3. 4.

5.

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Bribery, direct or indirect Dishonesty and violations of the Anti-Graft and Corrupt Practices Law (R.A. 3019) Gross misconduct constituting violations of the Code of Judicial Conduct Knowingly rendering an unjust judgment or order as determined by a competent court in an appropriate proceeding Conviction of a crime involving moral turpitude

DISCIPLINE OF MEMBERS OF THE JUDICIARY dreadful and dangerous implications (Pesole v. Rodriguez A.M. No. 755-MTJ, Jan. 31, 1978).

6. 7.

Willful failure to pay a just debt Borrowing money or property from lawyers and litigants in a case pending before the court 8. Immorality 9. Gross ignorance of the law or procedure 10. Partisan political activities 11. Alcoholism and/or vicious habits

Q: May the heirs of a judge who was found guilty of gross neglect of duty and dismissed from the service with disqualification from holding public office for an offense committed before he was appointed judge, be entitled to gratuity benefits?

Less serious charges 1. 2. 3. 4. 5. 6. 7.

A: Yes. Upon demise, the administrative complaint of the OCA had to be considered closed and terminated. Therefore, there is no valid reason why the heirs of the deceased should not be entitled to gratuity benefits for the period he rendered service as MTCC judge up to the finality of the CSC Resolution which imposed the penalty of "dismissal from service with all the accessory penalties including disqualification from holding public office and forfeiture of benefits”. The penalty of disqualification from holding public office and forfeiture of benefits may not be applied retroactively, however, the judge should be considered terminated from service in the judiciary as his appointment as MTCC judge is deemed conditional upon his exoneration of the CSC administrative charges against him (Re: Application for retirement/gratuity benefits under R.A. 910 as amended by R.A. 5095 and P.D. 1438 filed by Mrs. Butacan, surviving spouse of the late Hon. Jimmy Butacan, former judge of MTC, Tuguegarao City, who died on July 28, 2005,A.M. No. 12535-Ret, Apr. 22, 2008).

Undue delay in rendering a decision or order, or in transmitting the records of a case Frequently and unjustified absences without leave or habitual tardiness Unauthorized practice of law Violation of Supreme Court rules, directives, and circulars Receiving additional or double compensation unless specifically authorized by law Untruthful statements in the certificate of service Simple misconduct

Light charges 1. 2. 3. 4.

Vulgar and unbecoming conduct Gambling in public Fraternizing with lawyers and litigants with pending case/cases in his court Undue delay in the submission of monthly reports

Confidentiality of proceedings

Quantum of evidence required

Proceedings against judges of regular and special courts and justices of the Court of Appeals and the Sandiganbayan shall be private and confidential, but a copy of the decision or resolution of the Court shall be attached to the record of the respondent in the Office of the Court Administrator (RRC, Sec 12, Rule 140).

The ground for removal of a judicial officer should be established beyond reasonable doubt. Such is the rule where the charge on which the removal is sought is misconduct in office, willful neglect, corruption or incompetence. The general rules in regard to admissibility of evidence in criminal trials apply.

Resignation or retirement pending administrative case

Q: May a judge be disciplined by the Supreme Court based solely on a complaint filed by the complainant and the answer of respondent judge? If so, in what circumstances? What is the rationale behind this power of the Supreme Court? (1996 Bar Question)

The retirement of a judge or any judicial officer from service does not preclude the finding of any administrative liability to which he should still be answerable. Also, the withdrawal or recantation of the complaint does not necessarily result in the dismissal of the case (Atty. Molina v. Judge Paz, A.M. No. RTJ 01-1638, Dec. 8, 2003).

A: A judge may be disciplined by the Supreme Court based solely on the basis of the complaint filed by the complainant and the answer of the respondent judge, under the principle of res ipsa loquitor. The Supreme Court has held that when the facts alleged in the complaint are admitted or are already shown on the record, and no credible explanation that would negate the strong inference of evil intent is forthcoming, no further hearing to establish such facts to support a

NOTE: The acceptance by the President of the resignation does not necessarily render the case moot or deprive the SC of the authority to investigate the charges. The court retains its jurisdiction either to pronounce the respondent officially innocent of the charges or declare him guilty thereof. A contrary rule will be fraught with injustice and pregnant with

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JUDICIAL ETHICS judgment as to culpability of the respondent is necessary (In Re: Petition for dismissal of Judge Dizon).

rules on preventive suspension of judges, not having been expressly included in the Rules of Court, are amorphous at best.

NOTE: The doctrine of res ipsa loquitur does not and cannot dispense with the twin requirements of due process, notice and the opportunity to be heard. It merely dispenses with the procedure laid down in Rule 140, RRC (Rule 140: Discipline of Judges of Regular and Special Courts and Justices of the Court of Appeals and the Sandiganbayan).

Moreover, it is established that any administrative complaint leveled against a judge must always be examined with a discriminating eye, for its consequential effects are, by their nature, highly penal, such that the respondent judge stands to face the sanction of dismissal or disbarment. As aforementioned, the filing of criminal cases against judges may be used as tools to harass them and may in the long run create adverse consequences (Re: Conviction of Judge Adoracion G. Angeles, A.M. No. 069-545-RTC, Jan. 31, 2008).

Q: In Administrative Circular No. 1 addressed to all lower courts dated January 28, 1988, the Supreme Court stressed that all judges are reminded that the Supreme Court has applied the Res Ipsa Loquitor rule in the removal of judges even without any formal investigation whenever a decision, on its face, indicates gross incompetence or gross ignorance of the law or gross misconduct (Cathay Pacific Airways v. Romillo, G.R. No. 64276, 12 August 1986). The application of the res ipsa loquitor rule in the removal of judges is assailed in various quarters as inconsistent with due process and fair play. Is there any basis for such a reaction? Explain.

Grievance procedure in the rules of court is not applicable to justices and judges Complaints against justices and judges are filed with the Supreme Court which has exclusive administrative supervision over all courts and the personnel thereof pursuant to Section 6 Art. VIII, Constitution. The Court en banc has the power to discipline all judges of lower courts including justices of the Court of Appeals (1987 Constitution, Section 11, Art. VII).

A: 1. First view - there is a basis for the reaction against the res ipsa loquitor rule on removing judges. According to the position taken by the Philippine Bar Association, the res ipsa loquitor rule might violate the principle of due process that is the right to be heard before one is condemned.

As a matter of practice, the Supreme Court has assigned complaints against Municipal or Metropolitan Trial Judges to an Executive Judge of a Regional Trial Court and complaints against judges of Regional Trial Courts to a justice of the Court of Appeals, while a complaint against a member of the Court of Appeals would probably be assigned to a member of the Supreme Court for investigation, report and recommendation. Retired SC Justices are now tasked for this purpose.

Moreover, Rule 140 of the Rules of Court provides for the procedure for the removal of judges. Upon service of the complaint against him, he is entitled to file an answer. If the answer merits a hearing, it is referred to a justice of the Court of Appeals for investigation, the report of the investigation is submitted to the Supreme Court for proper disposition.

Rules on the liability of judges

The danger in applying the res ipsa loquitor rule is that the judge may have committed only an error of judgment. His outright dismissal does violence to the jurisprudence set in (In Re Horilleno, 43 Phil. 212, March 20, 1922).

GR: A judge is not liable administratively, civilly, or criminally, when he acts within his legal powers and jurisdiction, even though such acts are erroneous so long as he acts in good faith. In such a case, the remedy of aggrieved party is not to file an administrative complaint against the judge but to elevate the error to a higher court for review and correction.

2. Second view- According to the Supreme Court the lawyer or a judge can be suspended or dismissed based on his activities or decision, as long as he has been given an opportunity to explain his side. No investigation is necessary.

NOTE: The reason behind such rule is to free the judge from apprehension of personal consequences to himself and to preserve the integrity and independence of the judiciary.

Suspension pendente lite not applicable to judges

XPN: Where an error is gross or patent, deliberate and malicious, or is incurred with evident bad faith; or when there is fraud, dishonesty, or corruption.

While it is true that preventive suspension pendente lite does not violate the right of the accused to be presumed innocent as the same is not a penalty, the UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Civil liabilities under the New Civil Code

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DISCIPLINE OF MEMBERS OF THE JUDICIARY 1. 2.

ground of knowingly rendering an unjust judgment (Abad v. Bleza, A.M. No. R-227-RTJ, October 13, 1986).

Article 27 – refusal or neglect without just cause by a public servant to perform his official duty Article 32 – directly or indirectly obstructing, defeating, violating or in any manner impeding or impairing civil liberties guaranteed by the Constitution

2.

NOTE: Negligence and ignorance are inexcusable if they imply a manifest injustice, which cannot be explained by reasonable interpretation (In Re: Climaco, A.C. No. 134-J, January 21, 1974).

This responsibility for damages is not, however, demandable of judges except when his act or omission constitutes a violation of the Penal Code or other penal statute.

3.

Disabilities/restrictions under the New Civil Code 1.

4.

Article 1491 (5) – Justices, judges, prosecuting attorneys, clerks of court of superior and inferior courts and other officers and employees connected with the administration of justice cannot acquire by purchase, even at a public or judicial action, either in person or through the mediation of another the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions.

IMPEACHMENT (ETHICAL ASPECTS) Constitutional provisions on the accountability of public officers Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives (1987 Constitution, Sec. 1, Article XI). Nature of public office

Article 739 – Donations made to a judge, his wife, descendants and ascendants by reason of his office are void.

A public office is a public trust. It is not to be understood as a position of honor, prestige and power but a position of rendering service to the public.

Criminal Liabilities under the RPC and the Anti-Graft and Corrupt Practices Act 1.

Article 206– Knowingly rendering an unjust interlocutory order; and Maliciously delaying the administration of justice.

NOTE: The act must be committed maliciously with deliberate intent to prejudice a party in a case.

This prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights that may be the object of any litigation in which they may take part by virtue of their profession (1996 Bar Question). 2.

Article 205 – Judgment rendered through negligence – committed by reason of inexcusable negligence or ignorance.

Principle of accountability

Misfeasance a. Article 204 – Knowingly rendering unjust judgment. b. Manifestly Unjust Judgment – one which is so patently against the law, public order, public policy and good morals that a person of ordinary discernment can easily sense its invalidity and injustice.

It sets down the mandate that all government officials and employees, whether they be the highest in the land or the lowliest public servants, shall at all times be answerable for their misconduct to the people from whom the government derives its powers.

NOTE: It must be shown beyond doubt that the judgment is unjust as it is contrary to law or is not supported by evidence and the same was made with conscious and deliberate intent to do an injustice (In Re: Climaco, A.C. No. 134-J, January 21, 1974).

Its purpose is to protect the people from official delinquencies or malfeasances. It is therefore primarily intended for the protection of the State, not for the punishment of the offender.

Purpose of impeachment in accountability of public officers

relation

Importance of maintaining public trust in public offices

If the decision rendered by the judge is still on appeal, the judge cannot be disqualified on the

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the

JUDICIAL ETHICS It is essential that responsible and competent public officers be chosen for public office to maintain the faith and confidence of the people to the government otherwise it becomes ineffective. No popular government can survive without the confidence of the people. It is the lone guarantee and justification of its existence.

Factors to be considered in reinstatement 1. 2. 3.

SANCTIONS IMPOSED BY THE SUPREME COURT ON ERRING MEMBERS OF THE JUDICIARY

4.

Sanctions for a judge found guilty of a serious charge Any of the following sanctions may be imposed: 1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations. Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits 2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months 3. A fine of more than P20,000.00 but not exceeding P40,000.00 Sanctions for a judge found guilty of a less serious charge 1.

2.

Suspension from office without salary and other benefits for not less than one (1) nor more than three (3) months; or A fine of more than P10,000.00 but not exceeding P20,000.00.

Sanctions for a judge found guilty of a light charge Any of the following sanctions shall be imposed: 1. A fine of not less than P1,000.00 but not exceeding P10,000.00 and/or 2. Censure 3. Reprimand 4. Admonition with warning REINSTATEMENT OF A JUDGE PREVIOUSLY DISCIPLINED Propriety of reinstatement Reinstatement is proper when there is no indication that the judge is inspired by corrupt motives or reprehensive purpose in the performance of his functions.

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Unsullied name and service of record prior to dismissal Commitment to avoid situation that spur suspicion of arbitrary conditions Complainant mellowed down in pushing from his removal Length of time separated from service

DISCIPLINE OF MEMBERS OF THE JUDICIARY PROCEDURE FOR DISCIPLINE OF JUDGES OF REGULAR AND SPECIAL COURTS AND JUSTICES OF THE COURT OF APPEALS AND THE SANDIGANBAYAN (A.M. NO. 01-8-10-SC) (2005 Bar Question) 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 date of service.

If the complaint is not sufficient in form and substance, the same shall be dismissed.

Upon the filing of the respondent’s comment or upon the expiration of the time for filing the same and unless other pleadings or documents are required, the Supreme Court shall refer the matter to:

Office of the Court Administrator for evaluation, report, and recommendation

The investigating justice or judge shall set a day of the HEARING and send notice thereof to both parties. At such hearing the parties may present oral and documentary evidence.

Or assign the case for investigation, report, and recommendation to a retired member of the Supreme Court, if the respondent is a justice of the CA and the Sandiganbayan

If, after due notice, the respondent fails to appear, the investigation shall proceed ex parte.

Or to a justice of the CA, if the respondent is a judge of a Regional Trial Court or of a special court of equivalent rank

The investigating justice or judge shall terminate the investigation within ninety (90) days from the date of its commencement or within such extension as the Supreme Court may grant.

Or to a judge of the Regional Trial Court if the respondent is a judge of an inferior court.

The Court shall take such ACTION on the report as the facts and the law may warrant.

Within thirty (30) days from the termination of the investigation, the investigating Justice or Judge shall submit to the Supreme Court a REPORT containing findings of fact and recommendation. The report shall be accompanied by the record containing the evidence and the pleadings filed by the parties. The report shall be confidential and shall be for the exclusive use of the Court.

NOTE: Before the Court approved this resolution, administrative and disbarment cases against members of the bar who were likewise members of the court were treated separately. However, pursuant to the new rule, an administrative case against a judge of a regular court based on grounds which are also grounds for the disciplinary action against members of the Bar shall be automatically considered as disciplinary proceedings against such judge as a member of the Bar. Since membership in the bar is an integral qualification for membership in the bench, the moral fitness of a judge also reflects his moral fitness as a lawyer. A judge who disobeys the basic rules of judicial conduct also violates his oath as a lawyer (Samson v. Judge Caballero, A.M. No. RTJ-08-2138, Aug. 5, 2009)

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JUDICIAL ETHICS DISCIPLINE OF LOWER COURT JUDGES AND JUSTICES OF THE COURT OF APPEALS AND SANDIGANBAYAN

The self-examination of the judge is necessary. He should exercise his discretion in a way that people’s faith in the courts of justice will not be impaired. His decision, as to whether to hear the case or not should be based and dependent to giving importance to the confidence in the impartiality of a judge.

DISQUALIFICATION OF JUSTICES AND JUDGES (RULE 137) COMPULSORY Disqualification of justices and judges Section 1 of Rule 317 provides that a judge is mandated by law to be disqualified if any of the following instance, is present: 1. 2.

3. 4.

The judge, or his wife, or child is pecuniarily interested as heir, legatee, creditor or otherwise The judge is related to either party of the case within the sixth degree of consanguinity or affinity, or to the counsel within the fourth degree (computed according to the rule of civil law) The judge has been an executor, administrator, guardian, trustee or counsel The judge has presided in any inferior court when his ruling or decision is the subject of review

Rationale There is a conclusive presumption that the judge cannot objectively or impartially try the case. The law expressly prohibits him and strikes at the judge’s authority to hear and decide the case. Exception to compulsory/voluntary disqualification The same rule also provides that the judge may hear and decide the case despite the presence of a disqualification provided the interested parties both give a written consent, signed by them and entered upon the record. It has been decided by the Supreme Court that oral consent is not valid, even though both parties have agreed (Lazo v. Judge Tiong, 300 SCRA 173, 1998). VOLUNTARY Voluntary Inhibition according to the Rules of Court states that a judge through the exercise of sound discretion may, for just or valid reasons to inhibit himself. NOTE: A presiding judge must maintain and preserve the trust and faith of the parties-litigants. He must hold himself above reproach and suspicion. At the very sign of lack of faith and trust in his actions, whether well-grounded or not, the judge has no other alternative but to inhibit himself from the case (Gutang v. Court of Appeals, 292 SCRA 76). UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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COURT RECORDS AND GENERAL DUTIES OF CLERKS AND STENOGRAPHERS POWERS AND DUTIES OF COURTS AND JUDICIAL OFFICERS (RULE 135)

of any interested person, at all proper business hours, under the supervision of the clerk having custody of such records.

When pleading/motion for trial of cases/ other pleadings may be filed

XPN: Unless the court shall, in any special case, have forbidden their publicity, in the interest of morality or decency.

Section 1, Rule 135 of Rules of Court provides: “Courts always open; justice to be promptly and impartially administered.” Courts of justice shall always be open, except on legal holidays, for the filing of any pleading, motion or other papers, for the trial of cases, hearing of motions, and for the issuance of orders or rendition of judgments. Justice shall be impartially administered without unnecessary delay.

Enforceability of the processes in inferior courts GR: Within the province where the municipality or city lies. XPN: Outside its boundary, provided it is with the approval of judge of first instance of said province.

GR: Courts of justice shall always be open; Justice to be promptly and impartially administered.

Criminal processes served outside judge’s jurisdiction is allowed

XPN: Legal holidays

When the district judge, or in his absence the provincial fiscal, shall certify that in his opinion the interests of justice require such service.

NOTE: Upon the request of the local government unit concerned, the Executive Judges of the MeTCs or the MTCCs of the cities and municipalities comprising Metro Manila and of the cities of Baguio, Bacolod, Cagayan de Oro, Cebu, Davao and Iloilo may assign all judges to hold night court sessions daily from Monday to Friday and on official holidays and special days, from four-thirty o’clock in the afternoon to eleven o’clock in the evening, on rotation basis, and in pairs of two (Sec. 15, A.M. No. 03-8-02-SC).

Section 4 of Rule 135 of Rules of Court provides: Process of inferior courts— The process of inferior courts shall be enforceable within the province where the municipality or city lies. It shall not be served outside the boundaries of the province in which they are comprised except with the approval of the judge of first instance of said province, and only in the following cases: a. When an order for the delivery of personal property lying outside the province is to be complied with; b. When an attachment of real or personal property lying outside the province is to be made; c. When the action is against two or more defendants residing in different provinces; d. When the place where the case has been brought is that specified in a contract in writing between the parties, or is the place of the execution of such contract as appears therefrom.

Exclusion of the public from the proceedings Section 2, Rule 135 of Rules of Court provides: “Publicity of proceedings and records-- The sitting of every court of justice shall be public, but any court may, in its discretion, exclude the public when the evidence to be adduced is of such nature as to require their exclusion in the interest of morality or decency. xxx” GR: The sitting of every court of justice shall be public

Writs of execution issued by inferior courts may be enforced in any part of the Philippines without any previous approval of the judge of first instance. Criminal process may be issued by a justice of the peace or other inferior court, to be served outside his province, when the district judge, or in his absence the provincial fiscal, shall certify that in his opinion the interests of justice require such service.

XPN: When the evidence to be adduced is of such nature as to require their exclusion in the interest of morality or decency. Records of a court of justice is NOT always public Section 2, Rule 135 of Rules of Court provides: “The records of every court of justice shall be public records and shall be available for the inspection of any interested person, at all proper business hours, under the supervision of the clerk having custody of such records, unless the court shall, in any special case, have forbidden their publicity, in the interest of morality or decency.”

Instances in which Superior Court processes are enforceable in any part of the Philippines 1. 2. 3.

GR: The records of every court of justice shall be public records and shall be available for the inspection

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A case is pending to bring in a defendant For the arrest of an accused person Execution of any order or judgment of the court

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

JUDICIAL ETHICS Cases where the judge of the first instance of a particular province can approve the service of process of inferior courts outside the boundaries of province in which they are comprised 1. 2. 3. 4.

auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules.

When an order for the delivery of personal property lying outside the province is to be complied with; When an attachment of real or personal property lying outside the province is to be made; When the action is against two or more defendants residing in different provinces; When the place where the case has been brought is that specified in a contract in writing between the parties, or is the place of the execution of such contract as appears therefrom

Instances where the hearings may be had at any place in the judicial district which the judge shall deem convenient 1. 2.

Inherent powers of the courts

Supreme Court can authorize the judge to continue hearing and to decide said case notwithstanding his transfer or appointment to another court of equal jurisdiction

Section 5, Rule 135 of Rules of Court provides: Inherent powers of courts-- Every court shall have power: a. To preserve and enforce order in its immediate presence; b. To enforce order in proceedings before it, or before a person or persons empowered to conduct a judicial investigation under its authority; c. To compel obedience to its judgments, orders and processes, and to the lawful orders of a judge out of court, in a case pending therein; d. To control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a case before it, in every manner appertaining thereto; e. To compel the attendance of persons to testify in a case pending therein; f. To administer or cause to be administered oaths in a case pending therein, and in all other cases where it may be necessary in the exercise of its powers; g. to amend and control its process and orders so as to make them comfortable to law and justice; h. To authorize a copy of a lost or destroyed pleading or other paper to be filed and used instead of the original, and to restore, and supply deficiencies in its records and proceedings.

1. 2.

If a case has been heard only in part. If no other judge had heard the case in part.

Section 9, Rule 135 of Rules of Court provides: Signing judgments out of province.—If a case has been heard only in part, the Supreme Court, upon petition of any of the parties to the case and the recommendation of the respective district judge, may

Carrying jurisdiction into effect All auxiliary writs, processes and other means necessary to carry jurisdiction into effect may be employed by court or officer. Section 6, Rule 135 of Rules of Court provides: Means to carry jurisdiction into effect. -- When by law jurisdiction is conferred on a court or judicial officer, all UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

On the filing of a petition for the writ of habeas corpus For release upon bail or reduction of bail in any Court of First Instance (Section 8, Rule 135 of Rules of Court) .

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LEGAL FEES LEGAL FEES (RULE 141, A.M. NO. 04-2-04-SC)

a.

Sum claimed or amount of disputed tax or customs assessment, inclusive of interest, penalties and surcharges, damages of whatever kind and attorney’s fees b. Value of the article of property in seizure cases. If the value of the subject matter cannot be estimated – P 5,000.

MANNER OF PAYMENT Payment shall be made upon the filing of the pleading or other application which initiates an action or proceeding. The fees prescribed shall be paid in full upon filing of the pleading or application. 2. FEES IN LIEN Where the court in its final judgment awards a claim not alleged, or a relief different from, or more than that claimed in the pleading, the party concerned shall pay the additional fees which shall constitute a lien on the judgment in satisfaction of said lien.

Consequences if fees are not paid If the fees are not paid, the court may refuse to proceed with the action until they are paid and may dismiss the action or proceedings.

PERSONS AUTHORIZED TO COLLECT LEGAL FEES Except as otherwise provided, these officers and persons, together with their assistants and deputies, may demand, receive, and take the several fees hereinafter mentioned and allowed for any business by them respectively done by virtue of their several offices, and no more: 1. Clerks of the Supreme Court, Court of Appeals, Sandiganbayan and Court of Tax Appeals 2. Clerks of Regional Trial Courts 3. Clerks of Court of the First Level Courts 4. Sheriffs, process servers and other persons serving processes 5. Notaries 6. Other officers taking depositions

Basis of the amount of fee in filing permissive OR COMPULSORY counter-claim, CROSS-CLAIM, money claim against an estate not based on judgment, thirdparty, fourth-party, etc. complaint, complaint-inintervention in the RTC TOTAL SUM CLAIMED, Inclusive of Interests, Penalties, Surcharges, Damages of whatever kind, and Attorney’s Fees, Litigation Expenses and Costs In cases involving REAL property in litigation it is based on the fair market value as: 1. stated in the current tax declaration or 2. current zonal valuation of the bureau of internal revenue, whichever is higher, 3. if there is none, the stated value of the property in litigation

The following persons are also entitled to receive fees/ compensation under rule 141: 1. Stenographers 2. Witnesses 3. Appraisers 4. Commissioners in eminent domain proceedings 5. Commissioners in the proceedings for partition of real estate

In case of PERSONAL property, the FAIR MARKET value of the property in litigation as alleged by the claimant. Basis for determining amount of fees in personal actions in first level courts

NOTE: The persons herein authorized to collect legal fees shall be accountable officers and shall be required to post bond in such amount as prescribed by the law.

The value of the subject matter involved, or the amount of the demand, inclusive of interests, PENALTIES, SURCHARGES, damages of whatever kind, attorney’s fees, litigation expenses and costs.

Basis of the amount of fee in filing an action or proceeding with the Court of Tax Appeals 1.

Petition for review from a decision of the RTC or of the Central Board of Assessment Appeals or a special civil action with the CTA or an appeal from a decision of a CTA Division to the CTA En Banc – P3,000.00.

Basis for determining amount of fees in real actions

In an action or proceeding, including petition for intervention, and for all services in the same – amount of fee would be based on the:

The FAIR MARKET value of the property: 1. Stated in the current tax declaration or

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JUDICIAL ETHICS 2.

Current zonal valuation of the bureau of internal revenue, whichever is higher, or,

Persons exempt from payment of legal fees 1. 2.

If not declared for taxation purposes, the estimated value thereof shall be alleged by the claimant and shall be the basis in computing the fees.

NOTE: The clients of PAO shall be exempt from payment of docket and other fees incidental to instituting an action in court and other quasi-judicial bodies, as an original proceeding or on appeal. (R.A. No. 9406, Section 6)

Exemptions to fees to real actions In forcible entry and unlawful detainer, the amount of fees would depend on whether damages or costs are prayed for.

Rule with regard to indigent litigants Indigent litigants are exempt from payment of legal fees. However, the legal fees shall be a lien on any judgment rendered in the case favorable to the indigent litigant unless the court otherwise provides.

Witnesses are entitled to fees Witnesses in the Supreme Court, in the Court of Appeals and in the Regional Trial Courts and in the 1st level courts, either in actions or special proceedings, shall be entitled to P200.00 per day, inclusive of ALL EXPENSES;

Requisites for the indigents to be able to enjoy exemption He must execute an affidavit that he and his immediate family do not earn a gross income abovementioned, and they do not own any real property with the fair value aforementioned, supported by an affidavit of a disinterested person attesting to the truth of the litigant’s affidavit. The current tax declaration, if any, shall be attached to the litigant’s affidavit.

Fees to which witnesses may be entitled in a civil action shall be allowed on the certification of the clerk of court or judge of his appearance in the case. Limitations 1.

2.

A witness shall not be allowed compensation for his attendance in more than one case or more than one side of the same case at the same time, but may elect in which of several cases or on which side of a case, when he is summoned by both sides, to claim his attendance. A person who is compelled to attend court on other business shall not be paid as a witness.

Any falsity in the affidavit of litigant or disinterested person shall be sufficient cause to dismiss the complaint or action or to strike out the pleading of that party, without prejudice to whatever criminal liability may have been incurred. (Sec. 19) Rule as to Republic of the Philippines

Sheriff’s expense is NOT the same as Sheriff’s fees

The Republic of the Philippines, its agencies and instrumentalities are exempt from paying the legal fees provided in the rule.

Sheriff’s expenses are not exacted for any service rendered by the court; they are the amount deposited to the Clerk of Court upon filing of the complaint to defray the actual travel expenses of the sheriff, process server or other court-authorized persons in the service of summons, subpoena and other court processes that would be issued relative to the trial of the case. . It is not the same as sheriff’s fees under Section 10, Rule 141 of the Rules of Court, which refers to those imposed by the court for services rendered to a party incident to the proceedings before it (Re: Letter

Exemption to the rule that the Republic is exempt from paying legal fees Local governments and government-owned or controlled corporations with or without independent charters are not exempt from paying such fees. However, all court actions, criminal or civil, instituted at the instance of the provincial, city or municipal treasurer or assessor under Sec. 280 of the Local Government Code of 1991 shall be exempt from the payment of court and sheriff’s fees.

dated April 18, 2011 of Chief Public Attorney Persida RuedaAcosta Requesting Exemption From the Payment Of Sheriff’s Expenses, A.M. No. 11-10-03-0, July 30, 2013).

UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

Indigent litigants Republic of the Philippines

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LEGAL FEES Purpose of mediation fund The Fund shall be utilized for the promotion of courtannexed mediation and other relevant modes of alternative dispute resolution (ADR), training of mediators, payment of mediator’s fees, and operating expenses of the Philippine Mediation Center (PMC) units including expenses for technical assistance and organizations/individuals, transportation/communication expenses, photocopying, supplies and equipment, expense allowance and miscellaneous expenses, whenever necessary, subject to auditing rules and regulations. Fees do NOT form part of the Judiciary Development Fund The mediation fees shall not form part of the Judiciary Development Fund (JDF) under P.D. No. 1949 nor of the special allowances granted to justices and judges under Republic Act No. 9227. The amount collected shall be receipted and separated as part of a special fund to be known as the “Mediation Fund” and shall accrue to the SC-PHILJA-PMC Fund, disbursements from which are and shall be pursuant to guidelines approved by the Supreme Court. Exceptions in paying mediation fees The following are exempt from contributing to the mediation fund: 1. Pauper litigant. NOTE: However, the court shall provide that the unpaid contribution to the Mediation Fund shall be considered a lien on any monetary award in a judgment favorable to the pauper litigant.

2.

Accused-appellant

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UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

JUDICIAL ETHICS COSTS (RULE 142)

A: Yes, the rejection by CA indicated that the three lower courts with legal capacity and official function to resolve issues, all found the same set of facts. In this recourse, the petitioners presented no ground sufficient to persuade the court to warrant a review of the uniform findings of fact. Given the frivolousness of the appeal, the court imposes treble costs of suit on the petitioners under Rule 142 (Maglana Rice and Corn Mill Inc. vs. Annie L. Tan, G.R. No. 159051, Sept. 21, 2011).

RECOVERY OF COSTS PREVAILING PARTY Costs allowed to a prevailing party Costs shall be allowed to a prevailing party as a matter of course. However, the court shall have power, for special reasons, to adjudge that either party shall pay the costs of an action, or that the same be divided, as may be equitable (RRC, Sec. 1, Rule 142)

FALSE ALLEGATIONS A false allegation made without reasonable cause and found untrue shall subject the offending party to the reasonable expenses as may have been necessarily incurred by the other part by reason of such untrue pleading. The amount fixed by the Judge and taxed as costs (RRC, Sec. 4, Rule 142).

Costs shall not be allowed to the Republic of the Philippines. (RRC, Sec. 1, Rule 142) Q: Is the Land bank of the Philippines liable to the cost of suit in the performance of a governmental function such as disbursement of agrarian funds to satisfy awards of just compensation?

NON-APPEARANCE OF WITNESSES If a Witness fails to appear at the time and place specified in the subpoena issued by any inferior court, the costs of the warrant of arrest and of the arrest of the witness shall be borne by him, if the court determines that his failure to answer the subpoena was willful and without excuse (RRC, Sec. 12, Rule 142).

A: No, the Land Bank of the Philippines is in the performance of a Governmental function in an agrarian reform proceeding, hence, according to Rule 142, it is exempt from the payment of Cost of Suit (Land Bank of the Philippines vs. Esther Anson Rivera, G.R. No. 182431, Nov. 17, 2010). DISMISSED APPEAL OR ACTION Power of the court to render judgment for costs even if an Appeal has been dismissed If an Action or Appeal is dismissed, for want of Jurisdiction or otherwise, the Court retains the power to render judgment for Costs, as justice may require (RRC, Sec. 2, Rule 142).

FRIVOLOUS APPEAL If an appeal is deemed frivolous, double or treble costs shall be imposed on the plaintiff or appellant, which shall be paid by his attorney, if so ordered by the Court (RRC, Sec. 3, Rule 142).

Q: A vehicular accident between a Fuso truck owned by Maglana Rice and Corn Mill and a Honda Accord owned by Sps. Tan occurred on Aug. 28, 1996. Sps. Tan filed a complaint in the MTCC which was favored. The petitioners appealed, but RTC upheld the MTCC. Petitioners further appealed to the CA, which was denied for lack of merit. The MR being also denied, hence the appeal to the Supreme Court. The issue is whether or not the appeal is frivolous. UNIVERSITY OF SANTO TOMAS 2014 GOLDEN NOTES

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BIBLIOGRAPHY

Agpalo, R.E. (2002) Legal and Judicial Ethics. Rex Book Store. Antiquera, E. (1992, 2007) Code of Professional Responsibility. Rex Books Store. Black’s Law Dictionary, 7th Edition 1990, 2004, Thomson West Funa, D.B. (2009) Legal and Judicial Ethics. Central Book Supply. Francisco, V.J. (1958) Legal and Judicial Ethics. East Publishing. Pineda, E.L. (2009) Legal Ethics Annotated. Central Book Supply. Code of Professional Responsibility Annotated, Philippine Judicial Academy Publication. Ethical Consideration 8-1, 1978, Model Code of Professional Responsibility, American Bar Association Websites: www.lawphil.net www.chanrobles.com www.sc.gov.ph

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