Hizon Notes - Legal Ethics (Erika Pineda_s Conflicted Copy 2014-10-09)

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

UNIVERSITY OF SANTO TOMAS Faculty of Civil Law A.Y. 2012-2013 First Semester

LEGAL ETHICS Preliminaries

It was originally drafted in 1980 by the IBP Committee on Responsibility, Discipline and Disbarment. It was promulgated on June 21, 1988.

Q: What is Legal Ethics? Definition of Terms A: It is a branch of moral science which treats of duties which an attorney owes to the court, to his client, to his colleagues in the profession and to the public. It provides the needed moral foundation in the study of law intended to guide student throughout his life. Q: What is the significance of Legal Ethics? A: The practice of law will be transgressive, anarchic, riotous, lawbreaking, defiant and disobedient to courts if there are no set of governing rules to limit the parameters and tame the exercise of the profession.

Q: What is a Bar? A: It refers to the whole body of attorneys and counselors. They are the members of the legal profession. It refers to the collectivity of persons whose names appear in the Roll of Attorneys. Q: What is the Bench? A: It is the whole body of judges. Q: What is bar admission?

It will guard against abuses and ills of the profession such as dishonesty, deceit, immorality, negligence, slothness, lack of diligence and the many forms of malpractice of the members of the bar. It will raise the standard of the legal profession, encourage and enhance the respect for the law, assure an effective and efficient administration of justice. It provides the basis for the wedding out of the unfit and misfit in the legal profession for the protection of the public.

A: It is the act by which one is licensed to practice before courts of a particular state or jurisdiction after satisfying certain requirements: a. b. c.

Bar examinations Period of residency Admission on grounds of reciprocity after period of years as member of the bar

Q: Who is a lawyer? Q: What are the original bases of Legal Ethics? A: It refers to a person trained in the law and authorized to advise or represent others in legal matters.

A: 1. 2. 3. 4. 5.

Canons of Professional Ethics Supreme Court Decisions Statutes Constitution Treatises and Publications

Q: What is the present basis of Philippine Legal Ethics? A: The main basis of our Legal Ethics is the Code Professional Responsibility.

It is a person licensed to practice law. Q: Who is a trial lawyer? A: He is one who personally handles cases in court, administrative agencies or boards which means engaging in actual trial work. Q: Who is a practicing lawyer? A: He is one engaged in the practice of law.

Facultad de Derecho Civil

1

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

Q: What do you mean by practice of law? A: It is any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training, and experience. NOTE: All trial lawyers are practicing lawyers, but not all practicing lawyers are trial lawyers.

resident of the province and of good repute for probity and ability, to defend the accused. Q: What is an attorney ad hoc? A: A person named and appointed by the court to defend an absentee defendant in the suit which the appointment is made. Q: Who is an Attorney of Record?

Q: Who is a client? A: He is one who engages the services of a lawyer for legal advice or for purpose of prosecuting or defending a suit in his behalf and usually for a fee.

A: He is an attorney whose name must appear somewhere in permanent records or files of case, or on the pleadings or some instrument filed in the case, or on appearance docket. Person whom the client has named as his agent upon whom the service of papers may be made.

Q: Who are attorneys-at-law? Q: What is an of counsel? A: They are those who are by license, officers of the courts, empowered to appear, prosecute and defend, and upon whom the peculiar duties, responsibilities and liabilities are developed by law as a consequence. NOTE: It is synonymous with counselor-at-law, lawyer, attorney, counsel, abogado and boceros.

A: They are associate lawyers. Q: Who is the Lead counsel? A: He is the one charged with the principal management and direction of party’s case. He is the chief or primary attorney in class action or multi-district litigation.

Alawi v. Alauya Q: Who is a House Counsel? Q: Is an officer of the Shari’a Court entitled to the use of the title “lawyer”? A: No. Persons who pass the Shari’a Bar are not full-fledged members of the Philippine Bar. The title of attorney is reserved to those who, having obtained the necessary degree in the stufdy of law and successfully taken the Bar Examinations, have been admitted to the IBP. Q: Who is an attorney-in-fact? A: He is simply an agent whose authority is strictly limited by the instrument appointing him. His authority is provided in a special power of attorney or general power of attorney. He is not necessarily a lawyer.

A: He is a lawyer who acts as attorney for business though carried as an employee of that business and not an independent lawyer. Such lawyer advises business on day to day matters. Q: Who is an amicus curiae? A: He is a friend of the court. A person with strong interest in or views on the subject matter of an action, but not a party to the action, may petition the court for permission to file a brief. Such brief are commonly filed in appeals concerning matters of a broad public interest. NOTE: It merely acts s consultant to guide the court in a doubtful question or issue pending before it. He serves without compensation. Q: What is amicus curiae par excellence?

Q: What is counsel de officio? A: He is a counsel, appointed or assigned by the court, from among such members of the bar in good standing who, by reason of their experience and ability, may adequately defend the accused. He need not be a lawyer. In localities where members of the bar are not available, the court may appoint any person,

A: They are bar associations who appear in court as amicus curiae. Commission on Bar Discipline (CBD) The CBD is the investigating arm of the SC on administrative matters involving disbarment case against lawyers. Q: Who is n advocate?

Facultad de Derecho Civil

2

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

A: It is a lawyer who pleads on behalf of someone else. He pleads the cause of another before a tribunal or judicial court. He is a counselor.

____________________________________________

fledged member of the IBP. He has discretion to choose the IBP Chapter he wants to join. There is no such thing retirement as retirement in the IBP as understood in labor law.

Q: Who is a barrister? IBP is a Non-Political Bar A: He is a person entitled to practice law as an advocate or counsel in superior courts. Q: Who is a Solicitor? A: In the Philippines, he is a government lawyer attached with the Office of the Solicitor General. Integration of the Bar This is the unification of the entire lawyer population. It is an official national body of which all lawyers are required to be members. Integrated Bar of the Philippines The IBP is created on January 16, 1973. It is constituted on May 4, 1973 into a body of corporate by PD No. 181.

The Integrated Bar shall be strictly non-political, and every activity tending to impair this basic feature is strictly prohibited and shall be penalized accordingly. 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 Government or any political subdivision or instrumentality thereof (Section 13 of Rule 139-A). Q: When was the IBP constituted as a body corporate? A: On May 4, 1973.

Q: What are the objectives of IBP? Positions in the IBP are honorary A: The following are the general objectives of the Integrated bar: 1. 2. 3.

to elevate the standards of the legal profession, to improve the administration of justice; and to enable the Bar to discharge its public responsibilities more effectively. 4. Assist in the administration of justice; 5. Foster and maintain, on the part of its members, high ideals of integrity, learning, professional competence, public service and conduct; 6. Safeguard the professional interests of its members; 7. Cultivate among its members a spirit of cordiality and brotherhood; 8. Provide a forum for the discussion of law, jurisprudence, law reform, pleading, practice and procedure, and the relations of the Bar to the Bench and to the public, and publish information relating thereto; 9. Encourage and foster legal education; and 10. Promote a continuing program of legal research in substantive and adjective law, and make reports and recommendations thereon. Membership in the IBP Chapter

Except as may be specifically authorized or allowed by the Supreme Court, no Delegate or Governor and no national or local Officer or committee member shall receive any compensation, allowance or emolument from the funds of the Integrated Bar for any service rendered therein or be entitled to reimbursement for any expense incurred in the discharge of his functions (Section 14). Voluntary Bar Associations All voluntary Bar associations now existing or which may hereafter be formed may co-exist with the Integrated Bar but shall not operate at cross-purposes therewith. Membership as mandatory Membership in the National IBP is mandatory. IBP as the investigating arm of the SC in investigating disbarment cases Q: Does the IBP have the power to suspend or disbar? A: No. The recommendations of the IBP are subject to appeal to the SC which alone has the prerogative to disbar.

A lawyer does not automatically become a member of the IBP chapter where he resides or works after becoming a full-

Facultad de Derecho Civil

3

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

Admission to the practice of law

____________________________________________

the following subjects as major or field of concentration: political science, logic, english, spanish, history and economics.

Power to admit to practice is vested in the Supreme Court. Q: What are the basic requirements for all applicants for admission to the bar?

NOTE: No particular law school has a monopoly of knowledge of law. Good moral character

A: Every applicant for admission as a member of the bar: a. b. c. d. e.

must be a citizen of the Philippines, at least twenty-one years of age, of good moral character, and a resident of the Philippines; and must produce before the Supreme Court satisfactory evidence of good moral character, and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines.

Q: What are the basic requirements for all applicants for admission to the bar?

With regard to the requirement of good moral character, the candidate must hold and continue to possess it even after he has been admitted to the legal profession. Good moral character is not only a condition precedent to admission to the practice of law, its continued possession is also essential for remaining in the practice of law. Practice of law is privilege NOTE: While the practice of law is a privilege, it has also the nature of a right. The practice of law is not property right but a mere privilege. It is not a natural or constitutional right.

A: Sec. 5 of Rule 138: All applicants for admission shall, before being admitted to the examination, satisfactorily show that they have regularly studied law for four years, and successfully completed all prescribed courses, in a law school or university, officially approved and recognized by the Secretary of Education. The affidavit of the candidate, accompanied by a certificate from the university or school of law, shall be filed as evidence of such facts, and further evidence may be required by the court. No applicant shall be admitted to the bar examinations unless he has satisfactorily completed the following courses in a law school or university duly recognized by the government: a. b. c. d. e. f. g. h. i.

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.

Sec. 6. Pre-Law. - No applicant for admission to the bar examination shall be admitted unless he presents a certificate that he has satisfied the Secretary of Education that, before he began the study of law, he had 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 with any of

The right to practice of law is not a natural or constitutional right but is in the nature of a privilege or franchise. It is limited to person of good moral character with special qualifications duly ascertained and certified. Practice of law as a right The lawyer cannot be prevented from practicing law except for valid reasons as the practice of law is not a matter of State’s grace or favor. Lawyers cannot be prevented from seeing their clients under detention. Lawyers cannot also be deprived of their license to practice law without due process. The privilege to practice law is a right by itself but just like any other rights, it is subject to limitations. Who are entitled to practice law Q: Who may practice law? A: Any person heretofore duly admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions of this rule, and who is in good and regular standing, is entitled to practice law. Practice of Law Practice of law covers any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training, and experience.

Facultad de Derecho Civil

4

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

It implies the customary or habitual holding of oneself to the public as a lawyer and demanding compensation for his legal services. Cayetano v. Monsod Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. "To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill." Interpreted in the light of the various definitions of the term Practice of law". particularly the modern concept of law practice, and taking into consideration the liberal construction intended by the framers of the Constitution, Atty. Monsod's past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the poor — verily more than satisfy the constitutional requirement — that he has been engaged in the practice of law for at least ten years. Ulep v. Legal Clinc Inc. In the practice of his profession, a licensed attorney at law generally engages in three principal types of professional activity: legal advice and instructions to clients to inform them of their rights and obligations, preparation for clients of documents requiring knowledge of legal principles not possessed by ordinary layman, and appearance for clients before public tribunals which possess power and authority to determine rights of life, liberty, and property according to law, in order to assist in proper interpretation and enforcement of law. Q: What are the basic characteristics of the practice of law? A: 1. 2. 3. 4. 5. 6.

7.

law advocacy is not capital that yields profits; it is impressed with public interests for which it is subject to state regulation; it cannot be assigned or inherited but must be earned; a privilege burdened with conditions; habitually and customarily holding one’s self to the public as a lawyer; reserved to those academically trained in law and possessed good moral character not only at the time of his admission to bar but even so thereafter; and a profession and not a business as it is essential part in the administration of justice.

____________________________________________

Non-lawyers who are authorized to appear in court GR: Only those who are licensed to practice law can appear and handle cases in court. XPN: 1.

2.

In cases before the MTCs, a party may conduct his own case or litigation in person, with the aid of an agent appointed by him for that purpose; Before any other court, a party may conduct his litigation personally. But if he authorized someone to aid him, that someone must be an authorized member of the bar. He is bound by the same rules in conducting the trial of his case. He cannot, after judgment, claim he was not properly represented by counsel.

LAW STUDENT PRACTICE RULE Rule 138-A SECTION 1. Conditions for Student Practice. - A law student who has successfully completed 3rd year of the regular fouryear 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. chan robles virtual law library SEC. 2. Appearance. - 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. chan robles virtual law library The rule however is different if the law student appears before an inferior court, where the issues and procedure are relatively simple. In inferior courts, a law student may appear in his personal capacity without the supervision of a lawyer. A law student may appear before an inferior court as an agent or friend of a party without the supervision of a member of the bar. Section 34 of Rule 138 is clear that appearance before the inferior courts by a non-lawyer is allowed, irrespective of whether or not he is a law student. Under the Labor Code, non-lawyers may appear before the NLRC or any Labor Arbiter if:

Facultad de Derecho Civil

5

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

a. b. c.

They represent themselves, or If they represent their organizations or members thereof with written authorization of the latter; or They are duly accredited members of any legal aid office duly recognized by the DOJ, or the IBP in cases referred to by the latter.

____________________________________________

which necessitates legal knowledge, preparation documents of conveyancing and similar others. b.

Under the LGC, Sangguniang members may practice their professions, provided that if they are members of the Bar, they shall not:

1.

Appear as counsel before any court in any civil case wherein he LGU or office, agency, or instrumentality of the government is the adverse party; 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; Collect any fee for their appearance in administrative proceedings involving LGU of which he is an official; Use of property and personnel of the government except when the sangguniang member concerned is defending the interest of the government.

Q: What is the punishment for persons who pretend to be lawyers? 2. A: The unauthorized practice of law by assuming to be an attorney and acting as such without authority constitutes direct contempt which is punishable by fine or imprisonment or both.

3.

NOTE: A suspended lawyer cannot practice law during the period of his suspension.

4.

PUBLIC OFFICIALS WHO CANNOT PRACTICE LAW IN THE PHILIPPINES Q: Who are the public officials prohibited to engage in the private practice of law?

of

c.

Retired justice or judge receiving pension from the government, cannot act as counsel in any civil case in which the government or any of its subdivisions or agencies is the adverse party or in a criminal case wherein an officer or employee of the government is accused of an offense in relation to his office.

A: 1. 2. 3. 4. 5. 6. 7. 8. 9.

Judges and other officials or employees of the superior courts; Officials and employees of the OSG; Government prosecutors; President, Vice-President, Members of the Cabinet, their deputies and assistants; Members of the Constitutional Commissions; Members of the JBC; Ombudsman and his deputies; All governors, city and municipal mayors; and Those who by special law are prohibited from engaging in the practice of their legal profession.

Q: Who are the public officials with restrictions in the practice of law? A: Some public officials are not absolutely disqualified to practice law. They are merely subject to certain restrictions: a.

No senator or members of the House of Representatives may personally appear as counsel before any court of justice of before the Electoral Tribunals, or quasi-judicial and other administrative bodies;

NOTE: The senator or Congressman is allowed to engage in other aspects of the law practice such as the giving of legal advice to clients, negotiating contracts in behalf of clients

Q: May a lawyer who has lost his Filipino citizenship still practice law in the Philippines? A: GR: 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. XPN: When Filipino citizenship is lost by reason of naturalization as a citizen of another country but subsequently reacquired pursuant to RA 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 [RA 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 RA 9225. Although he is also deemed never to have terminated his membership in the Philippine bar, no automatic right to resume law practice accrues. Under RA 9225, if a person intends to practice the legal profession in the Philippines and he reacquires his Filipino

Facultad de Derecho Civil

6

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

citizenship pursuant to its provisions “(he) shall apply with the proper authority for a license or permit to engage in such practice.” Stated otherwise, before a lawyer who reacquires Filipino citizenship pursuant to RA 9225 can resume his law practice, he must first secure from this Court the authority to do so, conditioned on: a. b. c.

d.

the updating and payment in full of the annual membership dues in the IBP; the payment of professional tax; 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 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.

BACKGROUND OF CODE OF PROFESSIONAL RESPONSIBILITY (CPR)

c.

To counsel or 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;

d.

To employ, for the purpose of maintaining the 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;

e.

To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client's business except from him or with his knowledge and approval;

f.

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;

g.

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;

h.

Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed;

i.

In the defense of a person accused of crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits, to the end that no person may be deprived of life or liberty, but by due process of law.

The CPR is the principal source and basis of the rule of ethics for members of the bar who do not belong to the judiciary. For judges and justices, it is the Code of Judicial Ethics. The CPR applies to lawyers in the government service except the magistrates. Q: When was the CPR promulgated? A: On June 21, 1988. NOTE: The CPR is based on the Canons of Professional Ethics of the American Bar Association.  

SC not predisposed to grant full independence to the IBP CPR is binding on all lawyers. Violation thereof is a ground for disciplinary action. DUTIES OF ATTORNEYS UNDER THE RRC

Q: What are the duties of an attorney? A: Sec. 20. Duties of attorneys. attorney: a.

b.

It is the duty of an

NATURE OF THE POSITION OF AN ATTORNEY Q: What is the nature of the position of an attorney as an officer of the court? A: He is considered as a public officer occupying a quasijudicial office. He is considered as an officer of the court. He directly participates in the administration of justice. Through him, the judicial machinery is set in motion by his filing of cases in court on which the judge is called upon to act. His participation in the dispensation of justice is indispensable. If there are no lawyers, courts cannot operate to dispense justice. His intimate and indispensable relationship to the court makes him part of the court.

To maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines;

Q: What is the nature of the legal profession?

To observe and maintain the respect due to the courts of justice and judicial officers;

A: It is a form of public service or public trust intimately related to the administration of justice, in the practice of which pecuniary rewards are considered as merely incidental. It is a priesthood of justice.

Facultad de Derecho Civil

7

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

It is a profession and not a business as it is essential part in the administration of justice. It is a pursuit of learned art in the interest of public service.

A: He will not be admitted to the Bar without having actually taken his oath of office as an attorney.

CODE OF PROFESSIONAL RESPONSIBILITY

NOTE: Oath alone will not make a bar passer a full-fledged member of the bar. A board passer must not only take his oath as a member of the Bar, but he must also sign the Roll of Attorneys.

CHAPTER I- THE LAWYER AND SOCIETY

RULE 1.01

CANON 1 The lawyer’s oath I, do solemnly swear that I will maintain allegiance to the Republic of the Philippines, I will support the 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 or 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. Lawyer’s primary duty to society or state. It is the lawyer’s primary duty to society or state to uphold the Constitution, obey the laws of the land and promote respect of law and legal processes.

Lawyer must constantly be of good moral character. Q: What are the purposes of the requirement for good moral character? A: 1. 2. 3. 4.

To protect the public; The protection of the public image of lawyers; and To protect prospective clients. To protect errant lawyers from themselves. Unlawful acts or violation of laws

Being a lawyer, he is supposed to be a model in the community in so far as respect to the law is concerned. Q: What are the unlawful acts or violation of laws? A: 1.

Lawyer’s oath is a sacred trust, not a mere ceremony. It is not a mere ceremony or formality for practicing law to be forgotten afterwards. It is a sacred trust that lawyers must uphold and keep inviolable at all times.

2.

Lawyer’s oath imposes upon every lawyer the duty to delay no man for money or malice.

3.

Lawyers will be disciplined for disobeying legal orders or processes of courts.

4.

Willful disregard thereof may subject the lawyer not only to punishment for contempt but to disciplinary sanctions as well.

5.

Promoting an organization designed to violate or evade the laws against crime with knowledge of its aims; A lawyer who purchase opium although the sale was not consummated because he was robbed of the purchase price by the vendors; A lawyer who engineered the a scheme to defraud another person; Transgression of any provision of law by a lawyer is a repulsive and reprehensible act which the court will not countenance; and A lawyer who after barrowing court records stole exhibits by tearing them off.

NOTE: The law violated need not be a penal law. A lawyer who issued bouncing checks violates the law and is subject to disbarment or suspension. Q: What is the significance of lawyer’s oath? A: By swearing the lawyer’s oath, an attorney becomes a guardian of truth and rule of law and an indispensable instrument in the fair and impartial administration of justice. Q: What is the effect of failure to take the attorney’s oath?

Q: What is an unlawful conduct? A: It includes violation of the statutory prohibition on a government employee to engage in the private practice of his profession unless authorized by the Constitution or law. Q: What are the offenses involving moral turpitude? A:

Facultad de Derecho Civil

8

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Estafa Bribery Murder Bigamy Seduction Abduction Concubinage Smuggling Falsification of public document Violation of BP 22

____________________________________________

entertained of him, or the estimate in which he is held by the public in the place where is known. The former is not a subjective term but one which corresponds to objective reality. NOTE: Psychological incapacity of a lawyer does not necessarily make him an unfit member of the bar. Q: Cite instances of gross immorality. A: For immorality to be a ground for disciplinary action, it must not only be merely immoral but also grossly immoral:

Honesty is still the lawyer’s best virtue. 1. Q: What is Morality? A: It is that quality of human act whereby it measures up to what it should be as a step towards the objective last end of human action, or fails so to measure up.

2. 3.

4. Q: What is immorality? A: It is the doing of an act which is contrary to conscience. Morality as understood in law This is human standard based on the natural moral law which is embodied in man’s conscience and which guides him to do good and avoid evil.

5. 6.

Abandonment of wife and cohabitating with another woman Bigamy A lawyer who had carnal knowledge with a woman through a promise of marriage which he did not fulfill Seduction of a woman who is the niece of married woman with whom the lawyer had adulterous relations Delivering bribe money to a judge on a request of clients Lawyer taking advantage of his position as chairman of the college of medicine and asked a lady student to go with him in Manila where he had carnal knowledge of her under threat RULE 1.02

Q: What is moral turpitude? A: It includes everything which is done contrary to justice, honesty, modesty or good morals. Q: What is immoral conduct? A: It is that conduct which is willful, flagrant, or shameless and which shows a moral indifference to the opinion of the good and respectable members of the community. It is not confined to sexual conduct. NOTE: Morality must be a lasting virtue. Lawyers are expected to abide by the tenets of morality not only upon admission to the bar but also throughout their legal career, in order to maintain one’s good standing in that exclusive and honored fraternity. Good moral character is more than just the absence of bad character. Q: What is the difference between moral character and good reputation? A: Moral character is what a person really is as distinguished from good reputation or from the opinion generally

Defiance of the law shall not be abetted, nor acts lessening confidence in the legal system. Respect for the law is gravely eroded when lawyers themselves engage in unlawful practices and brush aside the rules of the IBP formulated for their observance. Preparation of a document contrary to law and morals is malpractice. Q: What are the acts which corrode confidence in the legal system? A: All acts of lawyers which are unlawful, dishonest, immoral or deceitful corrode public confidence in the legal system. Hence, lawyers must always conduct themselves in accord with the immutable tenets embodied in the lawyer’s oath and the rules of legal ethics. RULE 1.03 It is the duty of an attorney 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.

Facultad de Derecho Civil

9

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

Obligation not to encourage suits Lawyers owe it to the court and to society not to stir up litigations. This is to prevent barratry and ambulance chasing.

Q: What is the significance of an attorney’s signature on a pleading? A: The signature of counsel constitutes a certificate that he has read the pleading; that to the best of his knowledge, information, and belief there is a good ground to support it; and that it is not interposed for delay.

Barratry Q: What are the instances of delay condemned by the SC? Q: What is barratry? A: A: It is the offense of frequently exciting and stirring up quarrels and suits, either at law or otherwise. It is the act of Fermenting suits among individuals and offering his legal services to one of them for monetary motives or purposes. Ambulance chasing It is the lawyer’s act of chasing an ambulance carrying the victim of an accident for the purpose of talking to the said victim or relatives and offering his legal services for the filing of a case against the person who caused the accident.

1. 2. 3. 4. 5. 6. 7.

Q: What are the evils spawned by ambulance chasing? 8.

Resort to technicalities as a means to frustrate justice; Befuddling of the issues in the case by counsel which invariably will be exposed for what they are; Filing of multiple or repetitious petitions; Filing of several actions covering the same subject matter or seeking substantially identical relief; Filing of frivolous appeals for purposes of delay; Fling of motions for postponement and other kinds of motions for dilatory purposes; Indiscriminate fling of suits against a party clearly intended for harassment; and Delaying cases or services for money.

A: RULE 1.04 1. 2. 3. 4.

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 actions; and Defrauding of injured persons having proper causes of action but ignorant of legal rights and court procedure 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 the just rights of the injured persons.

GR: It is unprofessional for a lawyer to volunteer advice to bring lawsuit. XPN: In rare cases where ties of blood, relationship or trust make it his duty to do so. Lawyers must not file pointless petitions that only add to the workload of the judiciary. Lawyer should not be an instigator of controversy but a mediator for concord and conciliator for compromise. Delaying any man’s cause for corrupt motive, condemned. Appealing for purposes of delay is obstruction of justice.

Q: What is a compromise agreement? A: It is such that a party must give up some of the rights he has, in consideration of the same act on the part of the other side. Authority of a lawyer to bind clients Sec. 23. Authority of attorneys to bind clients. - Attorneys have authority to bind their clients in any case by any agreement in relation thereto made in writing, and in taking appeals, and in all matters of ordinary judicial procedure. But they cannot, without special authority, compromise their client's litigation, or receive anything in discharge of a client's claim but the full amount in cash. Settlement of cases authorized and encouraged by law. The law does not limit compromise to cases about to be filed or cases already pending in courts. That compromise which may be effected even after final judgment is impliedly allowed by Article 2040. Lawyer must encourage fair settlement. Attorney’s fees not ground for disapproval of compromise. The rights of lawyers to the fees due them for services in litigation cannot have a higher standing than the rights of the clients or the parties themselves.

Facultad de Derecho Civil

10

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

The practice of law is a profession not a money-making trade. Lawyer cannot compromise case without client’s consent A lawyer cannot, without special authority, compromise his client’s litigation or receive anything in discharge of the client’s claim but the full amount in cash. Q: What is the effect of compromise entered into without the authority of the client? A: A compromise entered into without authority is merely unenforceable. It can be ratified by the client. However, a lawyer has the exclusive management of the procedural aspect of the litigation including the enforcement of the rights and remedies of their client. Thus, when the case was submitted for decision on the evidence so far presented, the counsel for private respondents acted within the scope of his authority as agent and lawyer in negotiating for favorable terms for his clients

The protection of the weak and the powerless is the highest form of public service that a lawyer could render. Q: What are the primary characteristics which distinguish the legal profession from business? A: Primary characteristics which distinguish the legal profession from business are: 1.

2.

3. 4.

A duty of public service, of which the emolument is a byproduct, and in which one may attain the highest eminence without making much money. A relation as an "officer of court" to the administration of justice involving thorough sincerity, integrity, and reliability. A relation to clients in the highest degree fiduciary. A relation to 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.

CANON 2 Hence, improper solicitation of legal business is prohibited. RULE 2.01 Advertisement lowers the standards of the profession. Q: Who are the defenseless? Q: When is solicitation of legal business permissible? A: They are those who are not in a position to defend themselves due to poverty, weakness, ignorance or other similar reasons. The oppressed are the victims of acts of cruelty, unlawful exaction domination or excessive use of authority. A lawyer who accepts the cause of a person unable to pay his professional fees shall observe the same standard of conduct governing his relation with paying client. Legal aid is not a matter of charity but a public responsibility. Legal aid is a matter of public responsibility. It is not a matter of charity. It is a means for the correction of social imbalance that may and often do lead to injustice.

A: For solicitation to be proper, it must be compatible with the dignity of the legal profession. If made in a modest and decorous manner, it would bring no injury to the lawyer or to the bar. Even the use of calling cards with a formal picture is now acceptable. Modest announcements in newspapers, periodicals or magazines about the opening of a law office or law firm stating the names of the lawyers and the address of the office or firm is not improper. Still, the best advertisement for a lawyer is a well-deserved reputation for competence, honesty and fidelity to private trust and public duty.

RULE 2.02 Rule 2.04 In case of non-acceptance of the case of the defenseless or oppressed, legal advice should still be rendered to safeguard their rights.

To avoid any demeaning and degrading competition, lawyers as much as possible should be in unison in respecting such custom or tradition.

If he could not handle the case of defenseless or oppressed persons, he must not refuse to provide them with immediate legal advice necessary to protect their rights. RULE 2.03

Facultad de Derecho Civil

11

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

RULE 3.03 CANON 3 A lawyer may make known his legal services. RULE 3.01 Self-praises or false claims on qualifications or quality of legal services is unethical. RULE 3.02

GR: Name of a partner should be dropped from the firm name when he accepts public office. XPN: If the law allows him to practice law concurrently while holding the position such as a Sanggunian member who is allowed to practice law subject to certain restrictions. This is to prevent the law firm or partners from making use of the name of the public official to attract legal business and to avoid suspicion of undue influence.

Q: What name shall not be included in a firm name? RULE 3.04 A: No false name or misleading or assumed name shall be used in the firm name adopted. No name not belonging to any of the partners or associates may be used in the firm name for any purpose.

Seeking publicity is prohibited. A lawyer who seeks publicity to attract legal business is debasing the legal profession, especially so, if he pays something of value for it.

The rule in Sycip is that law partnerships are prohibited from continuing their business under firm names that include the names of the deceased partners.

Canon 27 of the Code of Professional Ethics

However, under the new Rule, partnerships are allowed the continued use of the name of a deceased partner provided that there is an indication that said partner is already deceased.

It is unprofessional to solicit professional employment by circulars, advertisements, through touters, or by personal communications or interviews not warranted by personal relations. Indirect advertisements for professional employment such as furnishing or inspiring newspaper comments, or procuring his photograph to be published in connection with causes in which the lawyer has been or is engaged or concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer's position, and all other like-laudation, offend the traditions and lower the tone of our profession and are reprehensible; but the customary use of simple professional cards is not improper.

The purpose of retaining the name of a deceased partner is to maintain the clients who have been provided legal services by the law firm. While the firm benefits from the good will attached to the personality of the deceased partner, that motivation is legitimate. Name of a partner in law firm should be dropped if appointed as judge since he is no longer allowed to practice law. The use of the firm name of a foreign law firm is unethical.

Advertising, direct or indirect

The most worthy and effective advertisement possible, even for young lawyer is the establishment of a well-merited reputation for professional capacity and fidelity to trust.

NOTE: The main law office and branch office do not constitute 2 law firms. Q: What is the effect of death of a partner to the clientlawyer relationship with the law firm?

CANON 4 Improvement of the legal system

A: It does not extinguish such relationship.

Lawyers should contribute to the enhancement of the system.

Q: What is the effect of the negligence of a member in the law firm?

The improvement of the administration of justice is a duty that falls on the shoulders of every Filipino.

A: It is negligence of the firm.

Yet, it is the lawyers who should be in the forefront of this endeavor as they are the best trained and learned in the law. The fair administration of justice is not a stranger to them being a daily companion.

Facultad de Derecho Civil

12

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

This responsibility flows from a lawyer’s sense of his public responsibility. CANON 5 Lawyers must update themselves with the law and must participate in the dissemination thereof. In line with this, the following are the objectives of IBP: 1. 2. 3.

Elevate the standards of the legal profession; Improve the administration of justice; and To enable the bar to discharge its public responsibility.

Also, judges must keep abreast of the laws, rulings and doctrines of the Supreme Court. Legal education does not stop with the lawyer’s admission to the bar. NOTE: Once a person becomes a lawyer, he incurs 3-fold obligation: 1. 2. 3.

CANON 6 The CPR shall govern the acts of all lawyers including those in the service of the government like the OSG. Lawyers who are incumbent judges and magistrates shall be governed in the performance of their official functions by the Code of Judicial Conduct. Q: Who are public officials? A: They include elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service, including military and police personnel, whether or not they receive compensation, regardless of amount. The law requires the observance of the following norms of conduct by every public official in the discharge and execution of their official duties: a.

Continue improving his knowledge of the law; To take an active interest in the maintenance of high standards of legal education; and To lay public to make the law part of their social consciousness. b.

The IBP has the following obligations: 1. 2.

3.

Encourage and foster legal education; Devise and maintain a program of continuing legal education for practicing attorneys in order to elevate the standards of the profession throughout the country; Conduct campaigns to educate the people on their legal rights and obligations, on the importance of preventive legal service, and on the true functions of the Filipino lawyer.

c.

Lawyers must take active part and not just be passive onlookers or listeners in the pursuit for continuing legal education programs. Mandatory Continuing Legal Education (MCLE) The MCLE program is to keep the lawyers abreast with law and jurisprudence. d. Lawyers are required to complete every 3 years at least 36 hours of continuing legal education on specified subjects. e.

Commitment to public interest. - Public officials and employees shall always uphold the public interest over and above personal interest. All government resources and powers of their respective offices must be employed and used efficiently, effectively, honestly and economically, particularly to avoid wastage in public funds and revenues. Professionalism. - Public officials and employees shall perform and discharge their duties with the highest degree of excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage. Justness and sincerity. - Public officials and employees shall remain true to the people at all times. They must act with justness and sincerity and shall not discriminate against anyone, especially the poor and the underprivileged. They shall at all times respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest. They shall not dispense or extend undue favors on account of their office to their relatives whether by consanguinity or affinity except with respect to appointments of such relatives to positions considered strictly confidential or as members of their personal staff whose terms are coterminous with theirs. Political neutrality. - Public officials and employees shall provide service to everyone without unfair discrimination and regardless of party affiliation or preference. Responsiveness to the public. - Public officials and employees shall extend prompt, courteous, and adequate service to the public. Unless otherwise provided by law or when required by the public interest,

Facultad de Derecho Civil

13

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

f.

g.

h.

____________________________________________

public officials and employees shall provide information of their policies and procedures in clear and understandable language, ensure openness of information, public consultations and hearings whenever appropriate, encourage suggestions, simplify and systematize policy, rules and procedures, avoid red tape and develop an understanding and appreciation of the socio-economic conditions prevailing in the country, especially in the depressed rural and urban areas. Nationalism and patriotism. - Public officials and employees shall at all times be loyal to the Republic and to the Filipino people, promote the use of locally produced goods, resources and technology and encourage appreciation and pride of country and people. They shall endeavor to maintain and defend Philippine sovereignty against foreign intrusion. Commitment to democracy. - Public officials and employees shall commit themselves to the democratic way of life and values, maintain the principle of public accountability, and manifest by deeds the supremacy of civilian authority over the military. They shall at all times uphold the Constitution and put loyalty to country above loyalty to persons or party. Simple living. - Public officials and employees and their families shall lead modest lives appropriate to their positions and income. They shall not indulge in extravagant or ostentatious display of wealth in any form.

NOTE: Misconduct in office as public official may be a ground for disciplinary action. RULE 6.01

be proper in the premises. In this jurisdiction provincial fiscals are not clothed with power, without the content of court, to dismiss or dicit nolle prosequi criminal actions actually instituted, and pending further proceedings. The power to dismiss is vested solely in the courts, that is to say in the presiding judge thereof. NOTE: It is highly reprehensible for a prosecutor to suppress facts capable of establishing the innocence of the accused. A public prosecutor should recommend the acquittal of the accused whose conviction is on appeal, if he finds no legal basis to sustain the conviction. RULE 6.02 The Code is equally applicable to lawyers in the government service. Government lawyers, who are public servants owe utmost fidelity to the public service. Public officials are required to uphold public interest over and above personal interest; must discharge their duties with the highest degree of excellence, professionalism, intelligence, and skill. Promotion of private interest is prohibited. GR: Misconduct in the discharge of official duties as government official is generally no disciplinable. XPN: If the misconduct of a government official is such a character as to effect his qualification as a lawyer or to show moral delinquency, then he may be disciplined as a member of the Bar upon such ground.

Q: What is the primary duty of a prosecutor? A: A prosecutor is a quasi-judicial officer and thus should seek equal and impartial justice. He should be as much concerned with seeing that no innocent man suffers as in being that no guilty man escapes. US v. Barredo We agree with the contentions of counsel that a conscientious prosecuting official, whose investigations have satisfied him as to the innocence of persons charged with the commission of crime, should not institute criminal proceedings against such persons. But we are of the opinion that in the event that criminal proceedings have been instituted, and the investigations of the provincial fiscal have satisfied him that the accused person is innocent, or that evidence sufficient to secure conviction will not be forthcoming at the trial despite the exercise of due diligence to that end, it then becomes his duty to advise the court wherein the proceedings are pending as to the result of his investigations, and to move the court to dismiss the proceedings, leaving it to the court to take such action as may

NOTE: A government lawyer should not refuse to perform a duty. RULE 6.03 Restrictions against government lawyers who left the services A government lawyer may leave the government service in various ways: retirement, resignation, expiration of the term of office, dismissal or abandonment. In such cases, he is prohibited from accepting engagement or employment in connection with any matter in which he had intervened while in service. R.A. No. 3019 Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

Facultad de Derecho Civil

14

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

(d) 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 its termination. Accordingly, any violation of restriction is tantamount to representing conflicting interests. Q: What is adverse-interest conflicts? A: Adverse-interest conflicts” exist where the matter in which the former government lawyer represents a client in private practice is substantially related to a matter that the lawyer dealt with while employed by the government and the interests of the current and former are adverse. Q: What is congruent-interest conflicts? A: On the other hand, “congruent-interest representation conflicts” are unique to government lawyers and apply primarily to former government lawyers. Q: What is the basis for such disqualification? A:The rationale for disqualification is rooted in a concern that the government lawyer’s largely discretionary actions would be influenced by the temptation to take action on behalf of the government client that later could be to the advantage of parties who might later become private practice clients.

CHAPTER II-THE LAWYER AND THE LEGAL PROFESSION CANON 7 RULE 7.01 Q: What are the requirements for all applicants for admission to the bar? A: Every applicant for admission as a member of the bar must: a. b. c. d. e.

Must be a citizen of the Philippines; At least 21-years of age; Of good moral character; A resident of the Philippines; and Must produce before the SC satisfactory evidence of good moral character, and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines (Sec. 2, Rule 138).

Section 4. Requirements for applicants from other jurisdictions. — Applicants for admission who, being Filipino citizens, are enrolled attorneys in good standing in the Supreme Court of the United States or in any circuit court of

appeals or district court therein, or in the highest court of any State or Territory of the United States, and who can show by satisfactory certificates that they have practiced at least five years in any of said courts, that such practice began before July 4, 1946, and that they have never been suspended or disbarred, may, in the discretion of the Court, be admitted without examination. Section 5. Additional requirements for other applicants. — All applicants for admission other than those referred to in the two preceding section shall, before being admitted to the examination, satisfactorily show that they have regularly studied law for four years, and successfully completed all prescribed courses, in a law school or university, officially approved and recognized by the Secretary of Education. The affidavit of the candidate, accompanied by a certificate from the university or school of law, shall be filed as evidence of such facts, and further evidence may be required by the court. No applicant shall be admitted to the bar examinations unless he has 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. Knowingly making a false statement or suppression of a material fact in the application for admission to the bar If the false statement or suppression of material is discovered before the candidate could take the bar examinations, he will be denied permission to take the examinations. If the discovery was made after the candidate had taken his oath as a lawyer, his name will be stricken from the rolls of attorneys. Q: What is the effect if what is concealed is a crime not involving moral turpitude? A: Such concealment nevertheless 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 a concealment, he perpetrated perjury. Prohibition against candidates Section 13. Disciplinary measures. — No candidate shall endeavor to influence any member of the committee, and during examination the candidates shall not communicate with each other nor shall they give or receive any assistance. The candidate who violates this provisions, or any other provision of this rule, shall be barred from the examination, and the same to count as a failure against him, and further

Facultad de Derecho Civil

15

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

disciplinary action, including permanent disqualification, may be taken in the discretion of the court. RULE 7.02

A: 1.

Lawyer shall not support for admission to the bar of an unqualified candidate. 2. As the public is vitally interested in the rectitude of attorneys, any person is permitted to oppose an application for admission by urging the moral disqualification of the applicant. A lawyer should aid in guarding the Bar against admission to the profession of candidates unfit or unqualified for being deficient in either moral character or education. 3. Section 27. Attorneys removed or suspended by Supreme Court on what grounds. — A member of the bar may be removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before the admission to practice, or for a wilfull disobedience of any lawful order of a superior court, or for corruptly or willful appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. RULE 7.03 A lawyer must at all times conduct himself properly as not to put into question his fitness to practice law. A lawyer should maintain the standard of moral fitness required of him when he applied for admission to the Bar. The moral turpitude for which an attorney may be disbarred may consist of misconduct in either his professional or nonprofessional activities. A lawyer must always conduct himself with great propriety. He must behave himself as to avoid scandalizing the public by creating the belief that he is flouting these moral standards. A lawyer shall stand as a shield in defense of right and in the warding off wrong.

4.

Misquoting the contents of paper, testimony of a witness, the language or the argument of opposing counsel; or the language of the decision or a textbook; or With knowledge of its invalidity, to cite as authority a decision that has been overruled or a statute that has been repealed, or in the argument to assert as a fact that which has not been proved, or in those jurisdictions where a side has the opening and closing arguments where a side has the opening and closing arguments to mislead his opponent by concealing or withholding positions in his opening argument upon which his side then intends to rely. Offering an evidence which he knows the court should reject; Introducing into an argument, addressed to the court, remarks or statements intended to influence the bystanders. RULE 8.01

Abusive and offensive language has no place in pleadings. It is contemptuous. Q: What is the language to be used in the practice of law? A: It should be dignified, emphatic but respectful as befitting an advocate and in keeping with the dignity of the legal profession. It should be gracious to both the court and opposing counsel and be of such words as may be properly addressed by some gentleman to another. NOTE: Court may expunge improper language from the records. Any kind of language which attacks without foundation the integrity of opposing counsel or the dignity of the court may be stricken off the records or may subject a lawyer to disciplinary action. Want of intention is not an excuse for the disrespectful language used. Counsel cannot escape responsibility by claiming that his words did not mean what any reader must have understood them as meaning. When

strong

language

used

is

justified.

CANON 8 RULE 8.02 Lawyers must conduct themselves honorably, fairly and candidly toward each other. Respect generates respect. Q: State some instances of lack of candor (honesty).

A lawyer should not steal another’s client. It is highly unethical for a lawyer to exert efforts directly or indirectly to encroach upon the professional employment of another.

Facultad de Derecho Civil

16

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

Competition among attorneys is contrary to the long established etiquette of the legal profession. No selfrespecting practitioner will ever voluntarily tender his services in pending matter then being conducted by other counsel, and will not obtrude criticism on acts of a party’s attorney.

Public policy demands that legal work in representation of parties litigant should be entrusted only to those possessing tested qualifications and who are sworn, to observe the rules and the ethics of the profession, as well as being subject to judicial disciplinary control for the protection of courts, clients and the public.

There is no encroachment when previous lawyer has already dismissed.

A lawyer is prohibited from taking as a partner or associate any person who is not authorized to practice law to appear in court or to sign pleadings.

Lawyer shall not negotiate with the opposite party who is represented by a counsel.

A lawyer shall not allow a non-member of the bar to misrepresent himself as a lawyer.

Lawyer may however interview any witness or prospective witness for the opposite side.

A lawyer cannot delegate his authority without client’s consent even to a qualified person.

Advice and assistance to victims of unfaithful and neglectful counsel is proper.

RULE 9.02 A lawyer can only divide or stipulate to divide fees for legal services with another lawyer who had rendered legal services with him in a case or legal work,

CANON 9 Q: What is the rationale for the prohibition? Unauthorized practice of law Unauthorized practice of law is committed when a person not a lawyer to be one and performs acts which are exclusive to members of the bar. Section 21. Authority of attorney to appear. — an attorney is presumed to be properly authorized to represent any cause in which he appears, and no written power of attorney is required to authorize him to appear in court for his client, but the presiding judge may, on motion of either party and on reasonable grounds therefor being shown, require any attorney who assumes the right to appear in a case to produce or prove the authority under which he appears, and to disclose, whenever pertinent to any issue, the name of the person who employed him, and may thereupon make such order as justice requires. An attorneys wilfully appear in court for a person without being employed, unless by leave of the court, may be punished for contempt as an officer of the court who has misbehaved in his official transactions. Assistance to the unauthorized practice of law is prohibited. A lawyer shall not assist anyone who is not a member of the bar to practice law in this country.

A: To avoid confusion as to whom to consult in case of necessity and also to avoid leaving the bar in a chaotic condition, aside from the fact that non-lawyers are not amenable to disciplinary measures. Q: What are the exceptions to Rule 9.02? A: a)

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 or to persons specified in the agreement; or b) Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; or c) Where a lawyer or law firm includes non-lawyer employees in a retirement plan even if the plan is based in whole or in part, on a profit sharing agreement. None lawyers are not entitled to attorney’s fees.

The lawyer who assists in an unauthorized practice of law whether directly or indirectly is subject to disciplinary action. RULE 9.01 Delegation of legal work to an unqualified person is misbehavior.

Facultad de Derecho Civil

17

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

CHAPTER III-THE LAWYER AND THE COURTS CANON 10

Art. 184. Offering false testimony in evidence. — 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 10.01 RULE 10.02 The burden cast on the 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. Even with due recognition then that counsel is expected to display the utmost zeal in defense of a client's cause, it must never be at the expense of deviation from the truth. A lawyer is an officer of the court. He is an instrument or agency to advance the ends of justice. His duty is to uphold the dignity and authority of the courts to which he owes fidelity not to promote distrust in an administration of justice. Refilling a case which was already litigated before is not forum-shopping but nevertheless a violation of Canon 10.

A lawyer is prohibited from: 1.

Knowingly misquoting or misrepresenting:

a. b. c.

Contents of paper; Language or argument of opposing counsel; Text of a decision or authority;

2.

Knowingly citing as law, a provision already rendered inoperative by repeal or amendment; or Asserting as a fact that which has not been proved.

3.

NOTE: When a lawyer makes a quotation of a decision in his pleading, he should quote the same verbatim to avoid misleading the court.

Carlet v. CA Counsel’s act of filing a new case involving essentially the same cause of action is likewise abusive of the courts’ processes and may be viewed as “improper conduct tending to directly impede, obstruct and degrade the administration of justice. RULE 10.01 The lawyer must be truthful. He must be a minister of truth. Hence, he must not mislead the court nor allow the court to be misled by an artifice.

When the misquotation is intended, the lawyer is subject to disciplinary action. Knowingly citing a law or a provision of law is unethical and contemptuous. Lawyer must not intentionally misread or interpret the law to the point of distortion in cunning effort to achieve their purposes. A lawyer should not cite a decision knowing that it is invalid or that it has been overruled. Neither should he cite a statute knowing that it has been repealed.

Q: Give some cases of falsehoods which merited disciplined. A lawyer shall not knowingly misquote or misrepresent the text of a decision or authority.

A: 1. 2. 3. 4. 5. 6. 7. 8.

Lawyer falsely stating in a deed of sale that property is free from all liens and encumbrances; Lawyer making it appear that a person executed a deed of sale in his favor; Lawyer concealing the fact that he was charged with or convicted of a crime; Lawyer encashing a check payable to a deceased cousin by signing the latter’s name on the check; Lawyer falsifying a power of attorney and used it in collecting the money for his own benefit; Lawyer uttering falsehood in a motion to dismiss; Lawyer presenting falsified documents in court which he knows to be false; and Lawyer filing false charges or groundless suits;

A lawyer should not assert as a fact, his version of the case, which had not yet been proven. Nor should a lawyer assert as finding of fact by the Court which is actually not. Fosting a nonexistent rule to mislead the court is a violation of legal ethics. RULE 10.03 The aim of lawsuit is to render justice. And the rules of procedure are precisely deigned to attain such objective. A lawyer who misuses the rules to frustrate the ends of justice deserves stern condemnation.

Facultad de Derecho Civil

18

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

Lawyer shall not misuse the rules of procedure. The Rules of Court are intended to facilitate the delivery of justice to those whom it is due without unnecessary expense and waste of time for truly justice delayed is justice denied.

RULE 10.04 The rule aims to avoid surprises and backstabbing. Cards of the lawyers must be laid on the table for openness, candidness and transparency.

Canlas v. CA As we have intimated, we cannot overlook the unseemlier side of the proceeding, in which a member of the bar would exploit his mastery of procedural law to score a "technical knockout" over his own client, of all people. Procedural rules, after all, have for their object assistance unto parties "in obtaining just, speedy, and inexpensive determination of every action and proceeding." If procedure were to be an impediment to such an objective, "it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy." A litigation is not a game of technicalities in which one, more deeply schooled and skilled in the subtle art of movement and position, entraps and destroys the other. It is, rather, a contest in which each contending party fully and fairly lays before the court the facts in issue and then, brushing aside as wholly trivial and indecisive all imperfections of form and technicalities of procedure, asks that justice be done upon the merits. Lawsuits, unlike duels, are not to be won by the rapier's thrust. Eternal Gardens Memorial Park Corp. v. CA and Seelin We note that while lawyers owe 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 officers of the court, bound to exert every effort to assist in the speedy and efficient administration of justice. They should not, therefore, 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. In Banogan et. al. vs. Cerna, et. al. As officers of the court, lawyers have a responsibility to assist in the proper administration of justice. They do not discharge this duty by filing pointless petitions that only add to the workload of the judiciary, especially this Court, which is burdened enough as it is. A judicious study of the facts and the law should advise them when 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." They should give way to the realities of the situation. Procedural rules are intended as an aid to justice, not as a means for its frustration. Technicalities should give way to the realities of the situation.

Pleaders must also furnish the adverse party or parties copies of all documents annexed thereto.

CANON 11 Public duties of the attorney takes precedence over his private duties. In re: Sotto To hurl the false charge that this Court has been for the last years committing deliberately "so many blunders and injustices," that is to say, that it has been deciding in favor of one party knowing that the law and justice is on the part of the adverse party and not on the one in whose favor the decision was rendered, in many cases decided during the last years, would tend necessarily to undermine the confidence of the people in the honesty and integrity of the members of this Court, and consequently to lower or degrade the administration of justice by this Court. The Supreme Court of the Philippines is, under the Constitution, the last bulwark to which the Filipino people may repair to obtain relief for their grievances or protection of their rights when these are trampled upon, and if the people lose their confidence in the honesty and integrity of the members 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 might be the result. As a member of the bar and an officer of the courts Atty. Vicente Sotto, like any other, is in duty bound to uphold the dignity and authority of this Court, to which he owes fidelity according to the oath he has taken as such attorney, and not to promote distrust in the administration of justice. Respect to the courts guarantees the stability of other institutions, which without such guaranty would be resting on a very shaky foundation. Lawyers must be respectful not only in their actions but also in their use of language whether in oral arguments or pleadings. Disrespectful acts and language are contemptuous. In Re: Almacen The counsel in any case may or may not be an abler or more learned lawyer than the judge, and it may tax his patience and temper to submit to rulings which he regards as incorrect, but discipline and self-respect are as necessary to

Facultad de Derecho Civil

19

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

the orderly administration of justice as they are to the effectiveness of an army. The decisions of the judge must be obeyed, because he is the tribunal appointed to decide, and the bar should at all times be the foremost in rendering respectful submission. The highest sign of respect to the courts is the lawyer’s obedience to court orders and processes. Criticisms of courts must not spill over the walls of decency and propriety. Pleadings containing derogatory, offensive or malicious statements to the court or judge in which the proceedings are pending constitutes direct contempt. Criticism made in good faith may be tolerated. Malicious attacks on courts have in some cases been treated as libel, in other cases as contempt of court, and as a sufficient ground for disbarment. However, mere criticism or comment on the correctness or wrongness, soundness or unsoundness of the decision of the court in a pending case made in good faith may be tolerated.

A lawyer’s language should be dignified in keeping with the dignity of the legal profession. It is his duty 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. Raising one’s voice A lawyer’s arguments should be gracious to both court and opposing counsel and be of such words as may be properly addressed by one gentleman to another. Raising one’s voice is a sign of disrespect. He must observe and maintain attitude not for the sake of the temporary incumbent of the judicial office but for the maintenance of its supreme importance. Sanggalang v. IAC To be sure, Atty. Sangco is entitled to his opinion, but not to a license to insult the Court with derogatory statements and recourses to argumenta ad hominem. In that event, it is the Court's duty "to act to preserve the honor and dignity ... and to safeguard the morals and ethics of the legal profession."

RULE 11.01 To maintain the dignity and respectability of the legal profession, lawyers who appear in court must properly attired. The traditional attires for male lawyers in the Philippines are the long-sleeve Barong Tagalog and coat and tie. Female lawyer appear in semi-formal attires. Judges also appear in the same attire in addition to black robes. RULE 11.02 It is the duty of the lawyer to be punctual in attendance and to be concise and direct in the trial and disposition of cases. Counsel may even be held in contempt in court for coming late in the hearing or trial of a case. Lack of punctuality interferes in the speedy administration of justice. A judge who is unpunctual in his habits sets a bad example to the bar and tends to create dissatisfaction with the administration of justice.

NOTE: A mere disclaimer of any intentional disrespect, not a ground for exoneration. He cannot escape responsibility by claiming that the words did not mean what any reader must have understood them as meaning. RULE 11.04 A lawyer must not attribute to a judge motives not supported by the record or which are immaterial to the cause. People v. Carillo We cannot close this decision without making a reference to the defamatory remarks which counsel for appellant makes in his brief, casting aspersions on the trial Judge’s motives and conduct. These remarks have no relevancy to the case, are of no value to us in the decision of the issues, and are not borne out by the record. To say that it is unprofessional worthy of the highest rebuke for a lawyer to attribute to a judge motive which do not appear on the record and have no materiality to the case is to reassert a platitude.

RULE 11.03 Misbehavior in court is direct contempt. Q: What is direct contempt? A: It is misbehavior committed in the presence of or so near the court or judge so as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, and can be punished summarily without hearing.

A lawyer can demand that the misbehavior of a judge be placed on record. This act of the lawyer is not contemptuous. While lawyers are prohibited to attribute motives to a judge not supported by the record. Lawyers must however be courageous enough to expose arbitrariness and injustices of courts and judges.

Facultad de Derecho Civil

20

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

RULE 11.05 Criticism of court is not per se contemptuous. Constructive and destructive criticisms are allowed. Q: What is criticism? A: It is an adverse analysis of an order, judgment or judicial act of a magistrate with the aim of preventing or avoiding an incipient injustice which may arise from the pernicious (harmful) effects of the mistake, error or irregularity committed. If the purpose of the criticism is to timely correct or rectify the mistake, error or irregularity that true justice may be achieved, that is constructive criticism. As to whether criticism is contemptuous or not will depend not only upon the manner how it was presented but also on the kind of tone of the language used as well as the apparent intention of the critic. If it was arrogantly or haughtily presented with abusive, scurrilous and offensive language coupled with the malicious intention to mock, ridicule, demean and offend the sensibilities of the court or the sitting judge, it is unquestionably contemptuous. This is destructive criticism which must not be tolerated. IN RE: ABISTADO That the constitutional guaranty of freedom of speech and press must be protected in its fulles extent, but license or abuse of liberty of the press and of the citizen should not be confused with liberty in its true sense; that as important as is the maintenance of an ummuzzled press and the free exercise of the rights of the citizen is the maintenance of the independence of the judiciary; That the courts must be permitted to proceed with the disposition of their busienss in an orderly manner free from outside interfered obstructive of their constitutional functions. When the criticism does not go beyond the metes and bounds of decency, morality and propriety, it is a healthy kind. Such criticism which is constructive must be welcomed by the judge rather than repulsed irritatingly. IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION AGAINST ATTY. VICENTE RAUL ALMACEN v. VIRGINIA Y. YAPTINCHAY. Criticism of the courts has, indeed, been an important part of the traditional work of the bar. In the prosecution of appeals, he points out the errors of lower courts. In written for law journals he dissects with detachment the doctrinal pronouncements of courts and fearlessly lays bare for -all to

see that flaws and inconsistence" of the doctrines (Hill v. Lyman, 126 NYS 2d 286). To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood, by the judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained. ... . Hence, as a citizen and as Officer of the court a lawyer is expected not only to exercise the right, but also to consider it his duty to avail of such right. No law may abridge this right. Nor is he "professionally answerable for a scrutiny into the official conduct of the judges, which would not expose him to legal animadversion as a citizen." (Case of Austin, 28 Am. Dee. 657, 665). Above all others, the members of the bar have the beat Opportunity to become conversant with the character and efficiency of our judges. No class is less likely to abuse the privilege, as no other class has as great an interest in the preservation of an able and upright bench. (State Board of Examiners in Law v. Hart, 116 N.W. 212, 216) To curtail the right of a lawyer to be critical of the foibles of courts and judges is to seal the lips of those in the best position to give advice and who might consider it their duty to speak disparagingly. "Under such a rule," so far as the bar is concerned, "the merits of a sitting judge may be rehearsed, but as to his demerits there must be profound silence." (State v. Circuit Court, 72 N.W. 196) But it is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety. A wide chasm exists between fair criticism, on the One hand, and abuse and slander of courts and the judges thereof, on the other. Intemperate and unfair criticism is a gross violation of the duty of respect to courts. It is Such a misconduct that subjects a lawyer to disciplinary action. RULE 11.06 Complaints against judges must be disclosed to the proper authorities only. The complaint must be filed with the proper authorities only—with the SC if the case is administrative in nature or with the Office of the Ombudsman if the compliant is criminal and not purely administrative in nature. If the complaints are based on impeachable offenses, complaints must be coursed through the House of Representatives and the Senate in accordance with the rules on impeachment. Criminal complaints against the judges in connection with their duties as such must be filed with the SC, not with the Ombudsman.

Facultad de Derecho Civil

21

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

Maceda. Ombudsman However, ee agree with petitioner that in the absence of any administrative action taken against him by this Court with regard to his certificates of service, the investigation being conducted by the Ombudsman encroaches into the Court's power of administrative supervision over all courts and its personnel, in violation of the doctrine of separation of powers. Article VIII, section 6 of the 1987 Constitution exclusively vests in the Supreme Court administrative supervision over all courts and court personnel, from the Presiding Justice of the Court of Appeals down to the lowest municipal trial court clerk. By virtue of this power, it is only the Supreme Court that can oversee the judges' and court personnel's compliance with all laws, and take the proper administrative action against them if they commit any violation thereof. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers. The Ombudsman cannot justify its investigation of petitioner on the powers granted to it by the Constitution, for such a justification not only runs counter to the specific mandate of the Constitution granting supervisory powers to the Supreme Court over all courts and their personnel, but likewise undermines the independence of the judiciary.

Hence, acts which obstruct the administration of justice are condemned. RULE 12.01 A lawyer must be ready when he goes to trial. Q: What is the duty of a newly hired counsel? A: A new counsel who accepts a case in 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. A lawyer who is presenting documentary exhibits must also be ready with the originals for purposes of comparison. Javellana v. Lutero A counsel for any party in a judicial controversy, by mandate of the canons of legal ethics, and with due regard for the elementary standards of fair play, is duty bound to prepare for trial with diligence and deliberate speed. This norm of conduct is no less applicable in a detainer case, such as the one at bar, even if the issues are essentially simple and uncomplicated. It is obvious that the counsel for the petitioner-appellant has been remiss in this respect.

Thus, the Ombudsman should first refer the matter of petitioner's certificates of service to this Court for determination of whether said certificates reflected the true status of his pending case load, as the Court has the necessary records to make such a determination. The Ombudsman cannot compel this Court, as one of the three branches of government, to submit its records, or to allow its personnel to testify on this matter, as suggested by public respondent Abiera in his affidavit-complaint.

A lawyer should never come to court unprepared. Most cases brought without preparation are cases lost. Half of the work of lawyer is done in the office. It is spent in study and research.

Q: What is the duty of lawyers when confronted by extorting public officers?

Q: What is forum-shopping? When does it exist?

A: A lawyer shall not offer any bribe to any public officer to gain advantage for himself or for a client. He has the duty to resist extortions and temptations to bribe and to report to the proper authorities.

CANON 12 Speedy and efficient administration of justice is the common aim of the bench and the bar. This canon directs the lawyer to exert every effort and consider it his duty to assist in the speedy and efficient administration of justice.

RULE 12.02 FORUM-SHOPPING The duplication or multiplication of suits must be avoided.

A: Forum shopping exists when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another, or when he institutes two or more actions or proceedings grounded on the same cause, on the gamble that one or the other court would make a favorable disposition. The most important factor in determining the existence of forum shopping is the “vexation caused the courts and parties-litigants by a party who asks different courts to rule on the same or related causes or grant the same or substantially the same reliefs.” Q: What should the sworn certification contain? A: Section 5 of Rule 7: Sec. 5. Certification against forum shopping.

Facultad de Derecho Civil

22

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasijudicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.

____________________________________________

Foronda v. Guerero Indeed, while a lawyer owes fidelity to the cause of his client, it should not be at the expense of truth and the administration of justice. Under the Code of Professional Responsibility, a lawyer has the duty to assist in the speedy and efficient administration of justice, and is enjoined from unduly delaying a case by impeding execution of a judgment or by misusing court processes. Such filing of multiple petitions constitutes abuse of the Court’s processes and improper conduct that tends to impede, obstruct and degrade the administration of justice and will be punished as contempt of court. Needless to add, the lawyer who files such multiple or repetitious petitions (which obviously delays the execution of a final and executory judgment) subjects himself to disciplinary action for incompetence (for not knowing any better) or for willful violation of his duties as an attorney to act with all good fidelity to the courts, and to maintain only such actions as appear to him to be just and are consistent with truth and honor. RULE 12.03 A lawyer who asked for extension of time must act in good faith. If the motion for extension of time is filed in bad faith from the outset, it is an obstruction of justice. The lawyer is subject to discipline.

Q: What is the effect of forum-shopping? A: It is condemnable and the punishment thereof is the dismissal of all actions pending in different courts without prejudice to the taking of appropriate actions against the counsel or party concerned. Q: Is forum-shopping applicable to disbarment proceedings? A: No. NOTE: The client and the not the counsel should sign the certification against forum-shopping. It is a reprehensible manipulation of court processes and proceedings. Q: What are the elements of forum-shopping? A: A lawyer could be charged with engaging in forumshopping only when 2 or more cases are pending involving the same parties, causes of action and reliefs prayed for. Lawyer has a duty to disclose the prior dismissal of his case by a court of concurrent jurisdiction.

Lawyers should file their pleadings on time or they suffer the consequences. Roxas v. CA Let this serve as (a) warning among members of the Philippine bar who take their own sweet time with their cases if not purposely delay its progress for no cogent reason. It does no credit to their standing in the profession. More so when they do not file the required brief or pleading until their motion is acted upon. Not only should they not presume that their motion for extension of time will be granted by the court(,) much less should they expect that the extension that may be granted shall be counted from notice. They should file their briefs or pleadings within the extended period requested. Failing in this, they have only themselves to blame if their appeal or case is dismissed. RULE 12.04 A lawyer must consider it his duty to assist in the speedy and efficient administration of justice. Execution of final decision should not be unduly thwarted. A judge should prevent dilatory tactics of lawyers.

Facultad de Derecho Civil

23

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

Lawyers should not misuse the rules of procedure.

A:

Alonso v. Villamor A litigation is not a game of technicalities in which one, more deeply schooled and skilled in the subtle art of movement and position, entraps and destroys the other. It is, rather, a contest in which each contending party fully and fairly lays before the court the facts in issue and then, brushing aside as wholly trivial and indecisive all imperfections of form and technicalities of procedure, asks that justice be done upon the merits. Lawsuits, unlike duels, are not to be won by a rapier's thrust. Technicality, when it desserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts. There should be no vested rights in technicalities. No litigant should be permitted to challenge a record of a court of these Islands for defect of form when his substantial rights have not been prejudiced thereby. RULE 12.05 Coaching of witnesses during break or recess is condemned. The moment a break or recess is declared during the trial and the witness is still under examination, the lawyer must refrain from talking to the witness. This is to prevent lawyers from coaching or teaching the witness to answer in a certain way, or to rectify certain statements damaging to his cause at the resumption of the trial. This is to maintain fair play with the other party and to prevent the examining lawyer from being tempted to coach his own witness to suit his purposes.

Sec. 3 . Rights and obligations of a witness. — A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness: 1.

2. 3. 4.

5.

To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; Not to be detained longer than the interests of justice require; Not to be examined except only as to matters pertinent to the issue; Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. (3a, 19a)

NOTE: Lawyers should treat witnesses with fairness. Lawyers must always be reminded that a lawyer’s language should always be dignified in keeping with the dignity of the legal profession. Judges are equally mandated to be courteous to litigants and witnesses. RULE 12.08

RULE 12.06 Rationale of the rule Assisting in condemned.

misrepresentation

or

impersonation

is

The lawyer who presented a witness knowing him to be a false witness is criminally liable for offering false testimony in evidence. The lawyer who is guilty of the above is both criminally and administratively liable. RULE 12.07 A lawyer shall not browbeat or harass or needlessly inconvenience a witness. It is a misbehavior to frighten or shout at witnesses, to terrorize them or tear them down arrogantly, cross-examine them with incessant questions beyond what is fair and necessary or maligning or abusing them with such other similar acts where disrespect instead of respect is the tone of the action.

The underlying reason for the impropriety of a lawyer acting in the dual capacity lies in the difference between the respective functions of a witness and an advocate. The function of a witness is to tell the facts as he recalls them in answer to questions. 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 he should withdraw from the active management of the case. Inhibition, a question of propriety The inhibition is not a question of competency to testify but one of the propriety—for the dual role of being a witness and a lawyer at the same time for a client, especially when the procedure followed is one of self-examination will generally invite criticism and confusion in the proceedings.

Q: What are the rights of the witnesses which must be respected during trial?

Facultad de Derecho Civil

24

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

The lawyer-witness may be opposing as counsel or arguing as witness and the stenographer will find it difficult to record the proceedings accurately. Exceptions to rule a.

b.

On formal matters, such as the mailing, authentication or custody of an instrument and the like On substantial matters, in cases where his testimony is essential to the ends of justice.

Discussing cases with the judge privately should be avoided A lawyer should not communicate or argue privately with the judge as to the merits of a pending case. He should be rebuked or denounced for any device or attempt to gain from a judge special personal consideration or favor. It is an impropriety for a judge to meet privately with an accused Q: What is the reason for this? A: To maintain impartiality.

CANON 13

RULE 13.02

Lawyer is a minister of justice

Public statements to arouse public opinion for or against a party generally condemned

The lawyer must be guided by the principles of justice. He must rely on the merits of his case and should avoid using influence and connections to win his case. His cases must be won because they are meritorious and not because of connections, clout, dominance, or influence.

Newspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial in the courts and otherwise prejudice the due administration of justice. Test when public statement is contemptuous

A judge’s official conduct should indeed be free from the appearance of impropriety; and his behavior not only in the performance of judicial duties, but also in his everyday life should be beyond approach.

The character of the act and its direct tendency to prevent and obstruct the discharge of official duty is the test to determine whether a newspaper publication concerning a pending case is contemptuous.

RULE 13.01 Trial by publicity, when prejudicial Extra-ordinary attention or hospitality to, or seek familiarity with judges, to be avoided Q: What is the reason for the prohibition? A: The reason for the prohibition is to protect the good name and reputation of the judge and the lawyer. Lawyers should not also seek for opportunity to cultivate familiarity with judges A lawyer who joins a club or association for the purpose of infiltrating the circle of the judges so that he can later hope to influence them in relation to his cases or some legal matters is highly unethical. The independence of the judges must be protected at all times so that the administration of justice may not be exposed to destructive suspicions before the scrutinizing eyes of the litigants and the public as a whole. Q: What are the consequences of such acts? A: 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: When is there a prejudicial publicity? A: There must be an allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. Lawyer equally guilty as the client if he induces the latter to cause the publicity If the counsel instigated or induced his client to make the public statement or publicity in the media involving a pending case to arouse public opinion and to influence the judge, both the client and the lawyer may be subjected to contempt of court. Q: What is the reason for this? A: The reason for this is that promulgated is already open to public consumption such that an adhesion thereto in a news item to justify a criticism is not actionable. However, after the case had already been finished, the rule in progressive jurisdictions is that, courts are subject to the same criticism as other people.

Facultad de Derecho Civil

25

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

RULE 13.03 Lawyers shall not invite interference by another government agency in the course of judicial proceedings When a case is already within the jurisdiction of a court, the lawyer should not cause or seek the interference of another agency of the government in the normal course of judicial proceedings.

Q: Why can’t a lawyer refuse to undertake the defense of an accused person simply because he believes that said person is guilty? A: For if the lawyer does so, he assumes the character of a judge. NOTE: No lawyer is obliged to act either as adviser or advocate for every person who may wish to become his client, but once he agrees to take up the cause of a client, the lawyer owes fidelity to such cause and must always be mindful of the trust and confidence reposed in him.

CHAPTER IV—THE LAWYER AND THE CLIENT

Discovering guilt of client

CANON 14

Even if he discovers that his client is guilty, he must still continue with defense of his client, and use all fair arguments arising on the evidence and see to it that due process is accorded to his client and that he should not be punished for more that what the law provides.

Services to the needy The privilege to practice law is a special privilege. The endorsement of this privilge is not however without any burden. Among them is the needed involvment of practising lawyers in the rendition of legal aid to the poor and the indigent without expecting ordinary attorney’s fees for their services. This burden is a social obligation of every practising lawyer. This is in consonance with Art. III, Sec. 11 of the Constitution: Section 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.

Q: When is Rule 14.01 applicable? A: Only to crinminal cases. NOTE: It is not for the lawyer to adjudge the guilt of his own client who under the law is presumed innocent unitl proven otherwise. Thus, it is not unethical for a lawyer to defend an accused charged with any crime, heinous, or otehrwise, because in the eyes of the law, until his conviction, he enjoys the rebuttable presumption of innocence. RULE 14.02

RULE 14.01 Appointment as counsel de oficio Lawyer not bound to accept all cases Q: Should a lawyer acccept all the cases? He must on his own responsibility decide what business he will accept as counsel, what cases he will bring to court for plaintiffs, or what cases he will contest in court for defendants.

The accused must be asked before the arraignment whether he desires the aid of an attorney. If he desires and is unable to employ one, the court must assign an attorney de oficio to defend him. Duty of the counsel de oficio Q: Explain the duty of counsel de oficio.

Restrictions The lawyer cannot decline to represent a person for the SOLE reason of the latter’s: 1. Race 2. Age 3. Creed 4. Status in life 5. Because of the lawyer’s opinion that said person is guilty of the charge

A: An accused, no matter how financially destitute, is entitled to be heard through counsel. He cannot be deprived of his life and liberty. Lawyers called to duty under the Rule, cannot ne excused from rendering efficient annot ne excused from rendering efficient and truly decisive legal assitance except for the most compelling reasons. It is not enough that the lawyer is present in the courtroom and proffers only shadow defense. He must be zealous and

Facultad de Derecho Civil

26

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

enthusiastic enough, fight like a lion as if he is defending his own self or members of his family. As counsel de oficio, the lawyer is duty bound to exert his best efforts and professional ability in behalf of the person assigned to his care. The counsel de oficio should be given at least 1 hour to consult with the accused as to his plea before proceeding with the arraignment. The right to counsel de oficio does not cease upon the convicyion of the accused by the trial court. Thus, if he wants to appeal, the court must still assign a counsel de oficio for the purpose. Judges are cautioned not to frequently appoint same lawyer as counsel de oficio Q: Why is a judge cautioned not to frequently appoint same lawyer as counsel de oficio? A: 1. 2.

It is unfair to the attorney concerned, considering the burden of his regular practice The compensation might be considered by some lawyers as a regular source of income, something which the Rules of Court does not envision. Accused can refuse a counsel de oficio

Appointment as amincus curae not to be declined Q: Who is an amicus curae? A: It literally means “friend of court.” He is known to be an expert of knowledgeable on certain matters of law in regard to which the judge may be doubtful or might go wrong.

____________________________________________

Free legal aid on request of the IBP The IBP or any of its chapters may request a member of the Bar to render free legal aid to poor deserving litigants. The lawyer so requested must not decline the request except for serious and sufficient cause. The lawyer should welcome such request as an opportunity to render public service and to demonstrate that the practice of law is noble profession where sacrifice is an essential element to assure a fair and speedy administration of justice regardless of compensation. Lawyer to render free legal aid to distitutes upon being assigned by the judge Rule 138, Sec. 31. Attorneys for destitute litigants. — A court may assign an attorney to render professional aid free of charge to any party in a 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.

This is different from Rule 116, Sec. 6: Sec. 6. Duty of court to inform accused of his right to counsel. – Before arraignment, the court shall inform the accused of his right to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself in person or has employed counsel of his choice, the court must assign a counsel de officio to defend him.

Q: When does Rule 138 apply? A: It refers to any party in any case other than a criminal case where the services of counsel are needed to secure the ends of justice. RULE. 14.03 First option of the original rule clarified

Q: How can the appointment of an amicus curae be made?

The rule should be read as follows:

A:

“A lawyer may not refuse to accept representation of an indigent client unless: xxx”

1. 2.

By application to the judge The judge on his own initiative may invite a prominent lawyer to appear as amicus curae in special cases

Q: Is an amicus curae a party to a case? A: An amicus curae is not a party to the action; he may petition the court for permiossion to file a brief. Amicus curae however does not have the right to interfere with or control the condition of the record; he has no control over the suit and no right to institute any proceedings therein.

Coverage of the rules Q: What is the coverage of the rules? A: The rule involves indigent clients who come to a lawyer for legal services. A judge may assign a lawyer to render professional service free of charge to any party in a case, if upon investigation, it appears that the party is destitute and unable to employ an attorney.

Facultad de Derecho Civil

27

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

A lawyer shall not refuse to accept his engagement by a poor client for reasons of insufficient compensation or lack of it.

case. The counsel should advise his clients of the futility of their cause to avoid unnecessary expenses.

Humility to admit incapabilty

b.

Q: What are the 2 exceptions to the rule that a lawyer may not refuse his services to represent an indigent client? A: 1. 2.

Lack of competence Conflict of interest

Fairness and loyalty- the lawyer must immediately inform his prospective client of the involvement of another client or his own interest in the case which will result in representing conflict of interests.

NOTE: The lawyer must keep the confidences and secrets of his client even after the termination of their professional relationship as lawyer and client. RULE 15.01

Lawyer who pretends to be disqualified under the rule is committing grave misconduct The Code of Professional Responsibility is not a request to lawyers but is an order from the highest court to all concerned lawyers who are officers of the court.

Possible involvement in conflicting interests to be disclosed immediately to prospective clients

RULE 14.04

When a lawyer confers with a prospective client, he shall ascertain whether he will be involved in representing conflicting interests, and if so, he shall immediately inform the prospective client.

Same standards of conduct to be employed for a client unable to pay lawyer’s fees

The lawyer shall not place his private interest over and above that of his clients

Q: What standard of care should a lawyer employ for a a client unable to pay lawyer’s fees?

In case of conflict of interests of a lawyer and his client, the lawyer shall give preference to the client’s interests.

A: If a lawyer accepts a case for a client and the client is unable to pay the lawyer’s professional fees, he must still represent the client with utmost fidelity, competence, and diligence.

Failure to diclose prior engagement or interests

The degree of care and competence required of the lawyer is not affected by the fact that his services are rendered gratuitously.

The attorney’s failure to disclose his prior engagement or interest is a good ground for the client to discharge the attorney. He must inform the prospective client that he is under the strict prohibition to handle the case and advise the latter to seek the assistance of another lawyer.

No discrimination in rendition of service Possible exception to the rule All clients of a lawyer, whether rich or poor, are entitled to the same level of professionalism, dedication, diligence, skills and competence. CANON 15

XPN: By written consetn of all the concerned given after a full disclosure of the facts. NOTE: The lawyer must have undivided fidelity to his client.

Candor, fairness, and loyalty, required of lawyers Q: Explain the following virtues of a lawyer: a. b. c.

Candor Fairness loyalty

a.

Candor- the lawyer must give a candid and honest opinion on the merit of lack of merit of his client’s

A:

Kinds of conflict of interest Q: What are the kinds of conflict of interest? A: Concurrent or multiple representation Generally occurs when the lawyer represents clients whose objectives are adverse to each other, no matter how

Sequential or successive representation Generally occurs when a law firm takes a present client who has an interest adverse to the interest of a former

Facultad de Derecho Civil

28

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

slight or remote such adverse interests may be

3.

client of the same law firm

No presumption of confidentiality

RULE 15.02 Preservation of the confidences and secrets of clients XPNS: 1.

2. 3.

When the revelation is authorized by the client after having been acquainted of the consequences of the disclosure When the revelation is required by law When necessary to collect the lawyer’s fees or to defend himself, his employees or associates or by judicial action

Privileged communication safeguards the revelation of confidences and secrets Among those covered are: 1. Attorney’s secretary 2. Stenographer 3. Clerk to be examined Even mere prospective clients are protected Q: Does the confidentiality privilege apply to prospective clients?

Q: Is there a presumption of confidentiality? A: The mere relation of attorney and client does not raise a presumption of confidentiality. The client must intend the communication to be confidential. Q: What is a confidential communication? A: It refers to information transmitted by voluntary act or dislcosure between attorney and client in confidence and by means which, so far as the client aware, discloses the information to no third person other than one reasonably necessary for the transmission or the accomplishment of the purpose for which it was given. Duration of the privilege Q: What is the duration of the privilege? A: The privilege continues to exist even after the termination of the attorney-client relationship. It outlasts the lawyer’s engagement. The privileged character of the communication ceases only when waived by the client himself or after his death.

A: The privilege applies even to a mere prospective client whose case has not been accepted by the lawyer. Form of communication Q: What are the kinds of communication do the rule cover?

The communication must be intended to be confidential.

When contents of pleadings ceased to be privileged The contents of the pleadings of an engaged attorney prepared on the basis of the communications transmitted to him by the client cease to become privileged communications after the pleadings have been filed.

A: a. b. c. d. e. f.

Oral Writing Actions or signs Other means of communication It may be direct Through a messanger, interpreter or through other modes of transmission Requisites of the Privileged communication

Two-fold purposes of the rule Q: What are the purposes behind the privileged communication between the client and the lawyer? A: 1. 2.

To encourage a client to make a full dislcosure of the facts of the case to his counsel without fear, and To allow the lawyer freedom to obtain full information from his client.

Q: What are the requisites of the privileged communication? Burden of proof A: 1.

2.

There exists an attorney and client relationship or a kind of consultancy relationship with a prospective client The communication was made by the client to the lawyer in the course of the lawyer’s professional employment

Q: Who has the burden of proof to establish that the communication is privileged? A: 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

Facultad de Derecho Civil

29

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

appears that it is privileged. The mere allegation that the matter is privileged is not sufficient. Instances when communication is not privileged

____________________________________________ 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.

Q: Give instances when a communication is not deemed privileged?

RULE 15.03 Conflicting interests, concept

A: Q: When is there conflicting interests? 1. 2.

When communication is made to a person who is not a lawyer When communication is made to a lawyer for some other purpose other than on account of the lawyerclient relationship. Ex: accounting service, business assistance

A: There is conflicting interests if there is an inconsistency in the interests of 2 or more opposing parties. In brief, if he argues for one client, this argument will be opposed by him and when he argues for the other client.

Parties entitled to invoke the privilege

Tests in determining conflicting interests

Q: Who may invoke the privilege?

Q: What are the tests in determining conflicting interests?

A:

A: 1. 2. 3.

The client The lawyer himself or the client’s employee The attorney’s secretary, stenographer, or clerk

1.

2. Unprivileged communication Q: What are the kinds of communication that a client may give upon the lawyer? A: The information obtained by a lawyer from a client in their attorney-client relationship is either: 1. Privileged 2. Unprivileged

NOTE: The criterion is probability. Defense that prospective client has no lawyer to turn to is not acceptable

Basic limitations of the privileged communication Q: What are communication?

the

limitations

of

the

Wheteher 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. Wheteher the acceptance of new relation would prevent the full discharge of the lawyer’s duty of undivided fidelity and loyalty to the client or invite suspicion of unfaithfulness or double-dealing in the performance of that duty.

Conflict of interest may arise in the same action or unrelated actions

privileged Unauthorized act of representing conflicting interests is a criminal offense

A: 1. 2.

It must have been transmitted to the counsel by the client for the purpose of seeking legal advice Limited or has reference only to communications which are within the ambit of lawful employment and does not extend to those transmitted in contemplation of future crimes or frauds

Rule on privileged communication is applicable to students under the student practice law prorgam Rule 138-A, Sec. 1

Q: State the pertinent RPC provision connected with the violation of the rule. A: Art. 209 of the RPC Art. 209. Betrayal of trust by an attorney or solicitor. — Revelation of secrets. — In addition to the proper administrative action, the penalty of prision correccional in its minimum period, or a fine ranging from 200 to 1,000 pesos, or both, shall be imposed upon any attorney-at-law or solicitor ( procurador judicial) who, by any malicious breach of professional duty or of inexcusable negligence or ignorance, shall prejudice his client, or reveal any of the secrets of the latter learned by him in his professional capacity.

Section 1. Conditions for student practice. — A law student who has successfully completed his 3rd year of the regular four-year prescribed law

Facultad de Derecho Civil

30

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

Undivided allegiance to client, a must After being retained and receiving the confidences of the client, he cannot, without the free and intelligent consent of his client, act both for his client and for one whose interest is adverse to, or conflicting with that of, his client in the same general matter. Rationale of the rule Q: Why should a lawyer give his utmost allegiance to his client? A: Not only to bar the dishonest practitioner from fraudulent conduct but also to prevent the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties. Treachery and double-dealing, condemned The relation of attorney and client is founded on principles of public policy. When representing conflicting interests is authorized Q: The rule is that a lawyer cannot represent conflicting interests. What is the exception?

When the case is presented to the lawyer by a client, and the latter is seeking advice on the probability or improbability of success, the lawyer should refrain from giving any advice unless he has obtained sufficient understanding of the client’s cause. Lawyer should temper inclination of client to appeal notwithstanding the clear absence of success Overstatement or understatement of the prospects of the case to be avoided A lawyer who exagerates the prospect pf winning a case will be placed in a dilemma which will adversely affect his reputation. If he overstates, he will be under heavy pressure to employ any means to win the case at all cost and will be blind to ethical rules. On the other extreme, it is also improper for a counsel to understate the prospect of winning a case which has a high chance of victory. Duty of lawyer when civil case is defenseless Lawyers are admonished from making bold assurances to his clients RULE 15.06 Influence-peddling not included in practice of law

A: The lawyer may appear against hi own client only on condition that the client has given his written consent thereto and after a full-disclosure of the facts to him.

Q: What is influence-peddling? Is it allowed?

The termination of the relation of attorney and client provides no justification for a lawyer to represent an interest adverse to or in conflict with that of the former client.

A: It is improper for a lawyer to show in any way that he has connections and can influence any tribunal or public official, like justices, judges, prosecutors, congressmen and others, specially 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.

RULE 15.04

RULE 15.07

When lawyer acts as mediator, conciliator or arbitrator

Lawyer must promote respect for the law

Q: Can a lawyer act as a mediator, conciliator or arbitrator?

The rule carries more or less the same intendment as Rule 1.02. The lawyer must impress upon his client, that everybody, including them, must respect the laws and observe the principles of fairness in their dealings as aptly enunciated in Art. 19 of the New Civil Code:

Termination of relationship is no justification

A: Consent in writing is required to prevent future controversy on the authority of the lawyer to act as mediator, conciliator, or arbitrator. However, a lawyer who acts as mediator, conciliator, or arbitrator in settling a dispute, cannot represent any of the parties to it. RULE 15.05 Overstatement or understatement of prospects of the case, not proper

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

Lawyer should give proper advice to clients

Facultad de Derecho Civil

31

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

The lawyer shall not abet or encourage any person, specially public officials to disregard the supremacy of the law and respect for the rights of the citizens. A lawyer who advised his client not to obey the order of the court is guilty of contempt and misconduct. The lawyer must resist the whims and caprices of clients and to temper their propensity to litigate because his lawyer’s oath to uphold the cause of justice is superior to his duty to his clients. On matters of law

Consequently, if he is engaged by a client, he must at the outset make it clear in what capacity he is acting so that the demarcation line is immediately drawn for the guidance of the client. Lawyer cannot divide his personality A lawyer may not divide his personality so as to be an attorney at one time and a mere citizen of another –he is expected to be competent, honorable and reliable at all times since he who cannto apply and abide by the laws in his private affairs, can hardly be expected to do so in his professional dealing nor lead others in doing so.

Q: Who has control over the proceedings? A: As counsel of record, a lawyer has control of the proceedings and whatever steps his client takes should be within his knowledge and responsibility. It is the lawyer who should yield to the lawyer and not the other way around.

CANON 16 Lawyer is trustee of client’s moneys and properties

Lawyer is not gun for hire

Q: What is the obligation of a lawyer in handling money or properties of his client?

The Code enjoins a lawyer to employ only fair and honest means to attain the lawful objectives of his client and warns him not to allow his client to dictate the procedure in handling the case.

A: The moneys collected by an attorney for his client belong to the client. Consequently, the lawyer is under obligation to hold in trust all moneys and properties of his client that may come into his possession.

Lawyer should advise clients on matters of decorum and proper attitude toward courts of justice

The moneys collected by a lawyer in pursuance of a judgment in favor of his client are held in trust for the client.

RULE 15.08

RULE 16.01

When lawyer is concurrently engaged in business, he must clarify to client in what capacity he is acting

Lawyer accountable for all moneys and properties of client Q: Should a lawyer render an accounting for his lawyer?

Q: Aside from lawyering, can a lawyer engage in other professions? A: t is not uncommon for lawyers to combine law practice with some other occupation. The fact of being a lawyer does not preclude him from engaging in business, and such practice is not necessarily improper. Q: When is there impropriety? A: Impropriety arises when the business is such of a nature or is conducted in such a manner as to be inconsistent with the lawyer’s duties as a member of the Bar. Q: How should a lawyer avoid breach of legal ethics? A: To avoid breach of legal ethics, the lawyer should keep in any business, in which he is engaged in concurrently with the practice of law, entirely separate and apart from the latter.

A: Considering that the lawyer is merely holding in trust the moneys and properties he received for his client, he is accountable therefor to his client. Q: What is the reason for the rule? A:The highly fiduciary and confidential relation of attorney and client requires that the lawyer should promptly account for all the funds received or held by him for the client’s benefits. The lawyer is under strict obligation to label and to identify his client’s property and keep it separate and apart from his own. He must not commingle his client’s money with other money’s in his possessiom. The prohibition against commingling is not only to prevent confusion but also to avoid the appearance of impropriety. Unlawful retention of client’s funds: Contemptous

Facultad de Derecho Civil

32

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

Q: What is the consequence of unlawful retention by the lawyer of his client’s funds? A: When an attorney unjustly retains in his hands money of his client after it has been demanded, he may be punished for contempt as an officer of the Court who has misbehaved in his official transactions; but proceedings under this section shall not be a bar to a criminal prosecution. Q: May a lawyer be deprived on that ground? A: A lawyer was disbarred for having used the money of his clients without the consent of the latter in violation of Canon 16 and the first 3 rules thereof.

A: A lawyer who obtained possession of the funds and properties belonging to his client in the course of professional employment shall deliver the same to his client when: a. They become due b. Upon demand Q: When is there a presumption of misappropriation? A: The lawyer’s failure to deliver upon demand gives rise to the presumption that he has misappropriated the funds for his own use to the prejudice of the client and in violation of the trust reposed in him. Implementation of attorney’s retaining or charging lien

Money not used for specific purpose is held also in trust and must be accounted immediately Attorney’s lien is not an excuse for non-rendition of accounting The lawyer is not relieved of the obligation to make a proper accounting even if he has an attorney’s lien over the client’s moneys or funds in his possession.

A lawyer shall have a lien over the client’s funds and may apply so much thereof to satisfy his lawful fees and disbursements but must give prompt notice to the client for the latter’s advisement. This authority is applicable to the lawyer’s retaining lien. Q: What are charging liens?

The lawyer cannot unilaterally appropriate for himself the money of his client for payment of his attorney’s fees which the client owes to the former.

A: For the further protection of the lawyer, he shall also have a lien to the extent of his attorney’s fees and legal disbursements on all judgments and executions he has secured for his client as provided for in the rules.

Lawyer cannot disburse client’s money to client’s creditors without authority

Attorney’s retaining lien does not apply to public documents and exhibits introduced in court

Q: May a lawyer disburse client’s money to client’s creditors without authority?

Q: What is the reason for this rule? A: These documents are subject to the court’s custody.

A: In the absence of authority from his client, he is not allowed to disburse the money collected for his client in favor of persons who may be entitled thereto considering that he owes fidelity to the client and not to the creditor. RULE 16.02 Funds of clients not to be commingled with funds of counsel Q: What is the reason for the above rule? A: 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. RULE 16.03 When shall client’s funds and properties be delivered; presumption of misappropriation Q: When should the client’s funds be delivered?

When documents are subject of lien, adequate security may be required Q: If the documents are not enough as lien, what is the remedy of the lawyer? A: When the documents in the possession of a lawyer are the subject of attorney’s lien, he cannot be compelled to surrender the same without prior proof that his fees have been fully satisfied. If the fees have not been paid, and there is a genuine need for the court to gain possession of the documents, it must first require the claimant to file an adeqaute security for the lawyer’s fees before it can require the surrender thereof. Lawyers cannot be deprived of his attorney’s fees through the client’s maneuvers The client cannot by: a. Settling b. Compromising

Facultad de Derecho Civil

33

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

c.

____________________________________________

Dismissing his suit during its pendency

RULE 16.04

Deprive the attorney of his compensation for the agreed amount, unless the lawyer consents to such settlement, compromise or dismissal.

Lawyer shall not borrow money from or lend money to client Q: What is the purpose of the rule?

Client can dismiss the lawyer anytime; consequences Q: Can the client dismiss his lawyer anytime?

A: To prevent the lawyer from taking advantage of his influence over his client. This is also to assure that the lawyer’s independent professional judgment.

A: A client has the prerogative to dismiss his lawyer anytime as the relationship is one based on trust and confidence. Q: In case of lawyer-attorney relationship, is there such a thing a illegal dismissal? A: There is no such thing as “illegal dismissal” in a clientlawyer relationship.

Exceptions to the rule against borrowing of lending of money Q: What are the exceptions to the rule against borrowing of lending of money? A: a.

Lawyer’s charging lien may be assigned Q: May charging liens be assigned? b. A: A charging lien, anchored on the accomplishment of services and resulting in favorable money judgment for the client, may be assigned because it is a property right.

The lawyer is allowed to borrow money from his client provided the interests of the client are fully protected by the nature of the case or by independent advice. The lawyer may lend money to a client when it is necessary in the interest of justice to advance necessary expenses in a legal matter he is handling for the client.

Q: What is the consequence of such assignment? A: The assignee will be subrogated to all the rights of the lawyer which he has in the charging lien.

CANON 17 Fidelity to the cause of client must always be maintained

Charging lien survives the death of the client Q: What is the effect of death of the client on the charging lien? A: A lawyer is not deprived of his attorney’s fees by the death of his client although the client-lawyer relationship is terminated.

Fidelity to the cause of client is the essence of the legal profession. Without this fidelity, the profession will not survive, for in the long run, no one will engage any lawyer anymore. An attorney owes loyalty to his client not only in the case in which he has represented him but also after the relation of attorney and client has terminated.

Probate court has no authority to enforce a lien It is not a good practice for lawyers to fight former clients Q: Does the probate court have jurisdiction over the lien enforcement?

Relationship of a lawyer-client is highly fiduciary

A: A probate court, being of limited jurisdiction, has no authority to enforce a lien unless conferred by a statute. The statutory jurisdiction of a probate court is exclusive.

The relationship of lawyer-client demands utmost fidelity and good faith.

Effect of enforcement of charging lien

Cannon is a strong reminder of lawyer’s obligation to remain loyal to the client and to keep latter’s secrets given in confidence

Q: What is the effect of enforcement of charging lien? A: When a lawyer enforces a charging lien against his client, the client-lawyer relationship is terminated.

Undivided fidelity to clients should not be at the expense of truth and the fair dispensation of justice.

Facultad de Derecho Civil

34

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

CANON 18

in the prosecution or defense of the litigation entrusted to him; and that he will exercise reasonable and ordinary care and diligence in the pursuit or defense of the case.

Q: What is diligence? XPN: If his client consents A: It is the attention and care required of a person in a given situation and is the opposite of negligence. Presumption of diligence

Clients entitled to effective representation Not only does everyone have the right to representation but he has the right to an effective representation.

Q: Is there a presumption of diligence? A: In the absence of any contrary evidence, a lawyer is presumed to be prompt and diligent in the performance of his duties and to have employed his best efforts, learning, and ability in the protection of his client’s interests and in the discharge of his duties as an officer of the court. Competence and diligence highly demanded of lawyers A lawyer should strive for proficiency in his practice and should only accept employment in matters in which he is or can become competent after reasonable preparation.

He should also recognize the advice from or collaborate with experts in scientific, accounting, or other non-legal fields. He should not hesitate to consult experts in non-legal areas where consultation is needed. Government lawyer, disqualified to practice law Q: May a government lawyer practice law? A: A lawyer who is part of the Public Attorney’s Office cannot practice of law. Collaborating counsel

Q: How does a lawyer maintains his competence? Q: Who is a collaborating counsel? A: He attains and maintains his compentence by keeping abreast of current legal literature, participating in legal education program, concentrating in particular areas of the law, and availing himself of these means. Extra-ordinary diligence, not required Q: Is extra-diligence required?

A: One who is subsequently engaged to assist a lawyer already handling a particular case for a client. When a case is complicated, it is not unusual for the handling lawyer to suggest to the client to allow him to take another lawyer to assist or collaborate with him in the case.

A: The practice of law does not require extra-ordinary diligence (exactissima diligentia) or that extreme measure of care and caution which persons of unusual prudence and circumspection use for securing and preserving their rights.

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. Coordination is therefore necessary to avoid misunderstanding.

Exact given address must be indicated in the pleadings

RULE 18.02

If a lawyer has 2 or more addresses, the address indicated in the record of the case will alone be considered. The court cannot take judicial notice of his new or other addresses.

Adequate preparation, concept Q: What do you mean by “adequate preparation” envisioned by the rule?

RULE 18.01 Implication of acceptance of cases Q: What are the consequences of acceptance by a lawyer of a case? A: When a lawyer accepts a case, whether for a fee or not, his acceptance is an implied representation that he possesses the requisite degree of academic learning, skill, and ability in the practice of his profession; that he will exert his best judgment

A: The adequate preparation required of a lawyer in the handling of a case covers a wide dimension in law practice. It includes among other virtues, sufficient knowledge of the law and jurisprudence, ability in trial technique and high proficiency in the formulation of pleadings. NOTE: A lawyer must keep himself constantly abreast with the trend of authoritive pronouncements and developments in all braches of law.

Facultad de Derecho Civil

35

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

A lawyer should be a proficient legal writer. Q: Give illustrations of the negligence of attorneys. Comfortable workload; too much work will adversely affect the lawyer’s proficiency

A: 1.

A lawyer must handle cases only as much as he can efficiently handle. Otherwise, his clients will be prejudiced. RULE 18.03 Ordinary Diligence, required of the lawyer Q: What is the kind of diligence required of a lawyer? A: The lawyer owes it to his clients to exercise his utmost learning and ability in maintaining causes. A license to practice law is a guarantee by the courts to the public that the licensee possesses sufficient skill and knowledge to manage their causes. The legal profession demands of lawyer that degree of vigilance and attention expected of a good father of a family. Attorney not bound to exercise extra-ordinary diligence Q: Should an attorney exercise extra-ordinary diligence? A: Prone to err like any other human being, he is not answerable for every error or mistake, and will be protected as long as he acts honestly and in good faith to the best of skill and knowledge.

Failure of counsel to ask additional time to answer a complaint resulting in a defualt judgment against his client. 2. Failure to bring suit immediately. 3. Failure to ascertain date of receipt from post office of notice of decisiom resulting in the non-perfection of the appellant’s appeal 4. Failure to file briefs within the reglementary period 5. Failure to attend to trial without filing a motion for postponement or without requesting either of his 2 partners in law office to take his place and appear for defendants 6. Failure of counsel to notify clients of the scheduled trial which prevented the latter to look for another lawyer to represent them while counsel was in the hospital. 7. Failure to notify the court of counsel’s change of address resulting in failure to receive judicial orders to the prejudice of client 8. Failure to present evidence 9. Failure to file the required position paper which prejudiced client’s cause 10. Failure to inform client of the scheduled pre-trial conference 11. Failure of counsel to notify his client on time of an adverse judgment to enable the latter to appeal 12. Failure to file petition for review

An attorney is not expected to know all the laws. He is not liable for disbarment for an honest mistake or error. He is not an insurer of the result in a case where he is engaged in as counsel. Only ordinary care and diligence are required of him.

A lawyer should adopt a system which a will assure him of receiving judicial notices properly

A lawyer is liable for his negligence

A lawyer should give adequate attention, care and time to his cases. This is the reason why a practising lawyer should accept only so many cases he can handle. Once he agrees to handle a case, he should undertake the task with dedication and care.

Q: Is a lawyer liable for his negligence? A: 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. Applicability of command responsibility in law firm practitioners Lawyer has no authority to waive client’s right to appeal Q: May a lawyer waive his client’s right to appeal? A: A lawyer has no authority to waive his client’s right to appeal. His failure to perfect an appeal within the prescribed period constitutes negligence and malpractice.

Lawyer should accept only so much cases he can handle

RULE 18.04 Client must be kept informed of the status of case Q: Should the client be informed of the developments in his case? A: The client has the right to be fully informed of the status of the case particularly on the important movements or developments therein. The lawyer has the corresponding duty to notify his client of the important orders or decisions not yet known to the client.

Instances of negligence of attorneys

Facultad de Derecho Civil

36

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

The client must be informed within the period of appeal to enable him to decide whether or not he will seek an appellate review of the decision. A lawyer should not also give an erroneous information to the client regarding the case. Such an act is often the root of unpleasant relationship between them. Duty of a party-litigant as regards his case or cases It is the duty of a party litigant to be in contract with his counsel from time to time in order to be informed of the progress of the case. Analogous case Litigants should give the necessary assistance to their counsel for what is at stake is their interest in the case .

A: It is condemned because it is pregnant with alternative admissions to allegations of the complaint. NOTE: A lawyer should put such defenses only which he believes to be honestly debatable under the law. A lawyer should put up such defenses only which he believes to be honestly debatable under the law. The lawyer can present every remedy or defense authorized by law in support of his own personal views. Lawyer shall not file or threaten to file any unfounded or baseless cases against adversaries of his client The lawyer should not file or threaten to file any 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.

CANON 19 Blackmail Devotion to the client; limitation Q: What is blackmail? Q: What is the limitation to the devotion of a lawyer to the cause of his client? A: The lawyer owes entire devotion to the interest of his client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost hearing and ability. The great trust of a lawyer is to be performed within and not without the bounds of the law. the responsibiltiy for advising as to questionable defenses is the lawyer’s responsibility. He cannot escape it by urging as an excuse that he is only following his client’s instructions. RULE 19.01

A: It is the extortion of money from a person by threats of accusation or exposure or opposition in the publiv prints,…obtaining of value from a person as a condition of refraining from making an accusation against him, or disclosing some secret calculated to operate to his prejudice. NOTE: A lawyer shall not bribe or attempt to bribe a judge to win his case. Defense of a person accused of crime It is the duty of an attorney to present every defense that the law permits, to the end that no person may be deprived of life, or liberty, but by due process of law.

Only honorable, fair and honest means shall be employed in the maintenance of cases RULE 19.02

The lawyer must not present and offer in evidence any document which he knows is false. He should not also under any circumstance present a false witness whom he knows will perjure.

Lawyer shall not allow his client to perpetrate fraud

Art. 194, RPC

A lawyer should do his best efforts to restrain and to prevent his client from perpetrating acts which he himself ought not to do, particularly with reference to their conduct towards courts, judicial officers, witnesses.

Art. 184. Offering false testimony in evidence. — 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.

Negative pregnant proper

If in the cause of the employment of a lawyer in a case, he discovers or receives information that his client has perpetuated a fraud upon a person or tribunal, he shall promptly advise the client to rectify the same, and if the

Q: What is negative pregnant?

Facultad de Derecho Civil

37

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

client refuses to heed the lawyer’s advise for rectification, the lawyer must withdraw from the case.

Legal basis of lawyer’s right to demand compensation for his services

RULE 19.03

The fact of employment as lawyer by the client constitutes the legal basis of the lawyer’s right to demand payment for his legal services. No formal contract is necessary to effectuate employment.

Lawyer, not client controls the procedure in the handling of a case Q: Who controls the procedure in the case? A: In matters of law, it is the client who yields to the lawyer and not the lawyer yielding to the client. In brief, in matters of procedure, where he is skilled, he is in control but not as the subject matter of the case. Obligation of counsel to comply with his client’s lawful requests; remedy if a lawyer does not agree Q: What is the remedy if the lawyer and the client cannot agree on certain important matters?

The lawyer cannot recover compensation from one who did not employ him nor authorize his employment, no matter how valuable the results of his services may have been to such person. Q: What if the lawyer was allowed by the client to represent the latter in a proceeding, even if there is no agreement on payment of attorney’s fees? A: The lawyer is entitled to reasonable fee for his services under the principle of quasi-contract, that is, no man must ne enriched at the expense of another. Unauthorized counsel, not entitled to attorney’s fees

A: When the client’s requests are proper and lawful, the lawyer has the duty to oblige. Thus, on matters of compromise, the client’s instructions are generally followed. The decision to settle or not to settle belongs to the client, although the lawyer is urged to encourage his clients to avoid, end, or settle the controversy if it will admit of a fair settlement.

CANON 20

If there is a quasi-contract, the lawyer must be paid reasonable attorney’s fees based on quantum meruit. Rationale of adequate compensation Q: What is the compensation?

rationale

behind

the

adequate

A: Adequate compensation is necessary in order to enable the lawyer to serve his client effectively and to preserve the integrity and independence of the profession. A lawyer like all other human beings has a right to livelihood.

Two concepts of attorney’s fees; bases Lawyer must be secured on his honorarium law Q: What are the 2 concepts of attorney’s fees? A: ORDINARY The reasonable compensation paid to a lawyer for the legal services he has rendered to a client

EXTRA-ORDINARY An indemnity for damages ordered by the court to be paid by the losing party to the prevailing party in litigation Basis The fact of employment by The basis of this is any of the the client cases authorized by law and is payable not to the lawyer but to the client—unles they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof.

While the practice of law is not a business, the attorney plays a vital role in the administration of justice, and hence, the need to secure him a honorarium lawfully earned as a means to preserve the decorum and legal responsibility of the legal profession. Forms of employment as counsel to a client; oral or express Q: What are the forms of employment of counsel? A: Contracts for employment may either be: a. Oral b. Express

Facultad de Derecho Civil

38

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

ORAL When the counsel is employed without a written agreement—but the conditions and amount of attorney’s fees are agreed upon

____________________________________________

WRITTEN Not necessary to prove a client’s obligation to pay attorney’s fees

Commencement of employment Q: When is the employment of a lawyer deemed commenced? A: Once there is a meeting of the minds between the lawyer and client on the case or subject to be handled and the consideration therefor, the lawyer is deemed employed even if no acceptance fee is paid yet. Q: Is payment of attorney’s fees a necessary element to create said relationship?

NOTE: It is further advisable that the contract for attorney’s fees be reduced to writing. By having a clear-cut agreement on the attorney’s fees, lawyers can avoid the embarassment they have to suffer when they have to file cases against their own clients for the fixing and collection of their attorney’s fees. The lawyer may resort to judicial action against his client only to prevent imposition, injustice or fraud. Q: May a disbarment case proceed independently of the civil action for collection of professional fees? A: Yes. It does not constitute forum-shopping. Advantages of a written contract for attorney’s fees Q: What are the advantages of a written contract for attorney’s fees? A:

A: No. 1. Engaging a law firm; significance 2. Q: What are the consequences of engaging a law firm? A: When a client employs the services of a law firm, he does not employ the services of the lawyer who is assigned to personally handle the case—he employs the entire law firm.

It is generally held as conclusive as to the amount of compensation In case of unjustified dismissal of an attorney, he shall be entitled to recover from the client full compensation stipulated in the contract. Pauper, not exempted from attorney’s fees

Proper time of fixing attorney’s fees

Q: Is a pauper exempted from the payment of attorney’s fees?

The proper time of fixing the attorney’s fees, which is a delicate matter, is at the commencement of the lawyer-client relationship.

A: Plaintiff who filed a complaint as a pauper while exempted from payment of legal fees is not exempted from payment of attorney’s fees.

Written contract of attorney’s fees is the law between the lawyer and the client

Ambiguities in contract, interpretation

Implied contract for employment The contract is implied when there is no agreement, whether oral or express, but the client allowed the lawyer to render legal services not intended to be gratuitous without objection, and the client is benefited by reason thereof.

That interpretation that is favorable to the client will be adopted. Situations when counsel cannot recover full amount, despite a written contract for attorney’s fees Q: Give illustrations when counsel cannot recover full amount, despite a written contract for attorney’s fees?

Immediate fixing of attorney’s fees, advisable A: Q: Why is there a need for immediate fixing of attorney’s fees?

1.

A: This is to avoid future misunderstandings which usually arise when the client thinks low of the value of the services of the counsel, and the latter thinks high of his services, and no one expressing what is in his mind.

2.

When the services called for were not performed as when the lawyer withdrew before the case is finished 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

Facultad de Derecho Civil

39

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

3. 4. 5. 6. 7.

____________________________________________

When the stipulated attorney’s fees are unconscionable The stipulated attorney’s fees are in excess of what is expressly fixed by law The lawyer is guilty of fraud, bad faith toward his client Counsel’s services were worthless because of negligence The contract of employment is illegal, against morals or public policy

act for the client Attorney’s fees on percentage basis Lawyers could not charge their clients fees based on percentage basis in the absence of an agreement to that effect. Champertous contract is void even if agreed upon Champertous contract

Winning litigant is not always granted attorney’s fees Q: What is a champertous contract? Q: What is the reason for the above rule? A: No premium should be placed on the right to litigate.

A: The lawyer agrees to spend for all the litigation expenses in consideration for a bigger percentage as fees on the propriety subject of litigation. It is void as against public policy.

Kinds of payment which may be stipulated upon Attorney’s fees based on quantum meruit; concept 1. 2.

3. 4. 5.

A fixed or absolute fee which is payable regardless of the result of the case A contingent fee that is conditioned to the securing of a favorable judgment and recovery of money or property and the amount of which may be on a percentage basis Fixed fee payable per appearance A fixed fee computed by the number of hours spent Fixed fee based on piece work

Quantum meruit Q: What is a quantum meruit? A: It means “as much as he has deserved.” Recovery of attorney’s fees on the basis of quantum meruit is authorized when: 1.

Retainer, concepts Q: What is a retainer?

2.

A: This is the act of the client by which he employs a lawyer to manage for him a cause to which he is a party, or otherwise to advise him as counsel.

3. 4.

It also refers to a fee which the client pays his attorney whom he retains.

5.

There is no express contract for payment of attorney’s fees agreed upon between the lawyer and the client When although there is a formal contract, the fees stipulated are found unconscionable or unreasonable by the court When the contract for attorney’s fees is void due to formally formal matters or defects of execution When the counsel, for justifiable cause, was not able to finish the case to its conclusion When the lawyer and client disregard the contract for attorney’s fees

Kinds of retainer agreements on attorney’s fees No lawyer engaged, but attorney’s fees allowed General retainer or retaining fee 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 A retaining fee is a preliminary fee given to an attorney or counsel to insure and secure his future services, and induce him to

Special retainer This is a fee for a specific case or service rendered by the lawyer for a client

Where the award is not only for attorney’s fees but also for expenses of litigation, it does not matter if the litigant represented himself in court, because it is obvious that he incurred expenses in pursuing his action. Duty of courts on payment of attorney’s fees Attorney’s fees to be justified, its reason must be mentioned in the text of the decision If the attorney’s fees granted by the Court is mentioned only in the dipositive portion, it will be disallowed on appeal. The reason for this is that the award of attorney’s fee to a winning

Facultad de Derecho Civil

40

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

party is not the general rule but only the exception. Hence, there must ne findings of facts and law to justify its grant. Attorney’s fee, not included in the general prayer (such other relief and remedy as this court may deem just and equittable Attorney’s fees must be specifically prayed for and proven and justfified in the decision itself. It is not incorporated in the general prayer for such other relief and remedy as this court may deem just and equittable. Q: What is legal interest? A: It cannot be imposed on attorney’s fees because legal services stand upon an entirely different footing from contracts for the payment of compensation for any other charges. Effect of elimination of moral and exemplary damages on attorney’s fees The award of attorney’s fees must be deleted where the award of moral and exemplary damages are eliminated. No attorney’s fees would be allowed if parties have a legitimate claims against each other GUIDELINES IN DETERMINING ATTORNEY’S FEES ON QUANTUM MERUIT BASIS Full-blown trial is needed in quantum meruit

A: It is a contract which stipulates that the lawyer will be paid for his legal services only if the suit or litigation ends favorably to the client It is not per se prohibited by law. Its validity depends, in large measure, upon the reasonableness of the amount fixed as contingent fee under the circumstances of the case. NOTE: The initial fees and subsequent fees paid during the progress of the litigation are independent of the contingent fees. The increased amount that is covered in the case of success merely offsets the risk of loss that would have resulted in case of failure. Contract for contingent fee is not prohibited under Art. 1491 of the NCC Art. 1491. Where the parties purport a sale of specific goods, and the goods without the knowledge of the seller have perished in part or have wholly or in a material part so deteriorated in quality as to be substantially changed in character, the buyer may at his option treat the sale: (1) As avoided; or (2) As valid in all of the existing goods or in so much thereof as have not deteriorated, and as binding the buyer to pay the agreed price for the goods in which the ownership will pass, if the sale was divisible. (n)

Death oe disability of lawyer employed on contingent basis He ans 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.

Q: Why is such the rule?

Champertous contracts, void; concept, different from contingent fee

A: It is necessarily needed because the factors must be established by evidence. 1.

Time spent and extent of the services rendered or required 2. Novelty and difficulty of questions involved 3. Importance of subject matter 4. Skill demanded of the lawyer 5. Probability of losing other employment 6. Customary charges for similar services and schedule of fees of IBP 7. Amount involved in the controversy and benefits resulting to the client from the service 8. Contingency or certainty of compensation 9. Character of the employment, whetehr occasional or established 10. Professional standing of the lawyer Contingent fee Q: What is contingent fee?

Champertous contract Q: What is a champertous contract? A: One where the lawyer stipulates with his client that in the prosecution of the case, 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. Q: Is a champetous contract valid? A: It is void for being contrary to public policy and Canon 42 of the Canons of Professional Ethics. Q: Distinguish contingent fee from champerty. A: CONTINGENT FEE May be paid in cash

CHAMPERTY Can be paid only in kind

Facultad de Derecho Civil

41

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

Professional standing of the lawyer

The collaborating counsel, in the absence of a contract, will receive attorney’s fees in proportion to the work performed and responsibility assumed.

A seasoned lawyer known for his ability and competency, not only in the practice of law but also in his other endeavors, is entitled to higher fees than an inexperienced lawyer. Professional standing counts.

In case of disagreement, the court may fix the proportional division or less.

None of the above guides is controlling The above rules are merely guides in determining the real worth as close as possible of the services rendered by a lawyer to a client. When is a fee considered reasonable There is no hard and fast rule which could be utilized to determine the reasonableness of attorney’s fees. Same must be determined from the facts in each case.

Classification of practising lawyers according to lines of specialty The IBP is in the best position to initiate the classification or listing of practising lawyers in each chapter. Compensation to an attorney for merely recommeding another lawyer, improper Atorney’s fees for legal services shared or divided to nonlawyers prohibited RULE 20.03

When is a fee unconscionable Q: What is the rationale for the rule? The amount contracted for must be such that no man in his righht senses would offer on the one hand and no honest and fair man would accept the other. The charging of attorney’s fees beyond what is fixed in the law is malpractice

A: 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 anotehr with the client’s business may interfere with the full discharge of his duty to his client.

If the attorney’s fee is found grossly excessive, the Court has the authority to reduce the same to a reasonable amount.

XPN: He may receive compensation from a person other than his client when the latter has full knowledge and approval thereof.

Judge’s sole opinion not a basis

Rule 20.04

The opinion of the judge as to the capacity of a lawyer is not the basis of the right to a lawyer’s fee.

Controversies with clients regarding attorney’s fees must be avoided

Opinions of attorneys as expert witnesses not controlling A counter-claim for attorney’s fee partakes of the nature of a compulsory counter-claim RULE 20.02

XPNS: 1. 2. 3.

Imposition Injustice Fraud

The law profession is not a money-making trade.

Sharing or division of attorney’s fees, when allowed

Judicial action to recover attorney’s fees

GR: When lawyers jointly represent a common client for a given fee without any express agreement on how much each will receive, they will share equally as they are considered special partners for a special purpose.

When proper, the lawyer can pursue judicial actions to protect, or collect attorney’s fees due to him. He has 2 options: 1. In the same case 2. In a separate civil action

XPNS: Contracts Client should not lose everything for attorney’s fees Lawyer-referral system, effects; fees of collaborating counsel

There should never be an instance where a lawyer gets as attorney’s fees the entire property in litigation. It is

Facultad de Derecho Civil

42

UNIVERSITY OF SANTO TOMAS

NOTES ON LEGAL ETHICS Kenneth & King Hizon (3A)

____________________________________________

unconscionable for the victor in litigation to lose everything he won to the fees of his own lawyer.

REFERENCE PINEDA, Ernesto L., Legal Ethics Annotated. 2009 Edition. Central Book Supply, Inc.

Facultad de Derecho Civil

43

UNIVERSITY OF SANTO TOMAS