kupdf.net_legal-ethics-reviewer-san-beda.pdf

1 MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES I. LEGAL ETHICS PRELIMINARY MATTERS Legal Ethics –  branch of moral science which treats of the duties which an attorney owes to the court, to his client, to his colleagues in the profession and to the public. - It is the embodiment of all principles of morality and refinement that should govern the conduct of every member of the bar.

PRIMARY CHARACTERISTICS WHICH DISTINGUISH THE LEGAL PROFESSION FROM BUSINESS 1. 2.

3. 4.

A duty of public service A relation, as an “officer of the court”, to the administration of justice involving thorough sincerity, integrity and reliability A relation to clients with the highest degree of fiduciary A relation to the colleagues at the bar characterized by candor, fairness and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients.

PRACTICE OF LAW CASE: Any activity in or out of court which requires the application of law, legal principle, practice or procedure and calls for legal knowledge, training and experience. (Cayetano vs Monsod, 201 SCRA 210) Strictly speaking, the word practice of law implies the customary or habitual holding of oneself to the public as a lawyer and demanding compensation for his services. [People vs. Villanueva 14 SCRA 111]

ESSENTIAL CRITERIA DETERMINATIVE OF ENGAGING IN THE PRACTICE OF LAW: (HACA) abituality- implies customarily or habitually 1. H abituality holding oneself out to the public as a lawyer 2.

C ompensation ompensation- implies that one must have presented himself to be in the active practice and that his professional services are available to the public for compensation, as a source of his livelihood or in consideration of his said services.

3.

 Application of law, legal principle, practice, practice, or procedure  which calls for legal knowledge, training and experience  Attorney – client relationship

4.

PRIVATE PRACTICE Private practice is more than an isolated appearance for it consists of frequent or customary actions, a succession of acts of the same kind.

NOTE: An isolated appearance does not amount to practice of law of a public officer if allowed by his superior in exceptional cases. NOTE:

The practice of law is not a natural, property or constitutional right but a mere privilege.   It is not a right granted to any one who demands it but a privilege to be extended or withheld in the exercise of sound judicial discretion. It is in the nature of a franchise conferred only for merit which must be earned by hard study, learning and good conduct. It is a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness. Those standards are neither dispensed with nor

lowered after admission. The attorney’s continued enjoyment of the privilege conferred depends upon his complying with the ethics and rules of 333the profession. But practice of law is in the nature of a right. While the practice of law is a privilege, a lawyer cannot be prevented from practicing law except for valid reasons, the practice of law not being a matter of state’s grace or favor. He holds office during good behavior and can only be deprived of it for misconduct ascertained and declared by judgment of the Supreme Court after opportunity to be heard has been afforded him. The state cannot exclude an attorney from the practice of law in a manner or for reasons that contravene the due process or equal protection clause of the Constitution.

POWER TO REGULATE THE PRACTICE OF LAW CASES: The Constitution [Art. VIII, Sec. 5(5)]  5(5)]  vests this power of control and regulation in the Supreme Court . The constitutional power to admit candidates to the legal profession is a judicial function and involves the exercise of discretion. Petition to that that end is filed with the the Supreme Court as are other proceedings invoking judicial function [In re: Almacen 31 SCRA 562] The SC acts through a Bar Examination Committee in the exercise of its judicial function to admit candidates to the legal profession. Thus, the Committee is composed of a member of the Court who acts as Chairman and 8 members of the bar who acts as examiners in the 8 bar subjects with one subject assigned to each. each . [In re Lanuevo, 66 SCRA 245] The power of the SC to regulate the practice of law includes the authority to: 1. Define the term 2. Prescribe the qualifications of a candidate to and the subjects of the bar examinations 3. Decide who will be admitted to practice 4. Discipline, suspend or disbar any unfit and unworthy member of the bar 5. Reinstate any disbarred or indefinitely suspended attorney 6. Ordain the integration of the Philippine Bar 7. Punish for contempt any person for unauthorized practice of law 8. Exercise overall supervision of the legal profession 9. Exercise any other power as may be necessary to elevate the standards of the bar and preserve its integrity. On the other hand, the LEGISLATURE , in the exercise of its POLICE POWER may, however, enact laws regulating the practice of law to protect the public and promote the public welfare. But the legislature MAY NOT pass a law that will control the SC in the performance of its function to decide who may enjoy the privilege of practicing law and any law of that kind is unconstitutional as an invalid exercise of legislative power.

WHO MAY PRACTICE LAW? Any person heretofore duly admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions of this rule, and who is in good and regular standing, is entitled to practice law. [Sec. 1, Rule 138]

REQUIREMENTS BEFORE A CANDIDATE CAN ENGAGE IN THE PRACTICE OF LAW I. He must have been admitted admitted to the Bar

LEGAL ETHICS AND PRACTICAL EXERCISES COMMITTEE CHAIRPERSON: Jackie Lou Bautista A SSISTANT CHAIRPERSON: Catherine Jane Vanilla SUBJECT HEADS: Ma. Ricasion Tugadi (Legal Ethics), Mary Wendy Duran(Practical Exercises) EDP: Raphy Espiritu M EMBERS: John Dale Balinan, Malou Barrios, Catherine Bool- Nuňez, Melanie Caparas, Kristian Cristobal, Remeg io Dayandayan, Jr., Gerald dela Cruz, Donna Dumpit, JB Roselle Gayona, Rhea Mangubat, Joyce Marie Marquez, Rowena Mutia, Maan Salada, Melamy Salvadora, Vin-Kristine Ventura

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a.

Furnishing satisfactory proof of educational, moral and other qualification; b. Passing the bar c. Taking the Lawyer’s Oath before the SC A lawyer’s oath signifies that the lawyer in taking such an oath accepts and affirms his ethical obligations in the performance of his duties as a lawyer and signifies likewise his awareness of his responsibilities that he assumes by his admission to the legal profession. d. Signing the Attorney’s Roll and receiving from the Clerk of Court of the SC a Certificate of the license to practice II. After his admission to the bar, a lawyer must remain in good and regular standing, which is a continuing requirement for the practice practice of law. He must: a. Remain a member of the IBP (membership therein by every attorney is made compulsory); b. Regularly pay all IBP membership dues and other lawful assessments, as well as the annual privilege tax; c. Faithfully observe the rules and ethics of the legal profession; and d. Be continually subject to judicial disciplinary control.

3.

4.

5.

6. 7.

BASIC REQUIREMENTS FOR ADMISSION TO THE BAR Under Section 2, 5 and 6, Rule 138, the applicant must be: 1. Citizen of the Philippines; 2. At least 21 years of age; 3. Of good moral character; (Note: This is a continuing requirement.) 4. Resident of the Philippines; 5. Must produce before the SC satisfactory evidence of good moral character; 6. No charges against him, involving moral turpitude, have been filed or are pending in any court in the Phil. [Sec. 2, Rule 138]; 138]; 7. Must have complied with the academic requirements; 8. Pass the bar examinations.

conducting the trial trial of his case. He cannot, after judgment, claim that he was not properly represented. In a criminal case before the MTC –  in a locality where a duly licensed member of the Bar is not available, the judge may appoint a non-lawyer who is a resident of that province, of good repute for probity and ability to the accused in his defense. [Sec. 7, Rule 116] Student Practice Rule - A law student who has successfully completed his 3 rd  year of the regular 4year prescribed law curriculum and is enrolled in a recognized law school’s clinical legal education program approved by the SC –  may appear without compensation in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to represent indigent clients accepted by the Legal Clinic of the school. [Sec. 1, Rule 138-A] The student student shall be under the direct supervision and control of a member of the IBP duly accredited by the law school. [Sec. 2] Under the Labor Code –  non-lawyers may appear before the NLRC or any Labor Arbiter if they (a) represent themselves; (b) represent their organization or members thereof [Art. 222, PD 442] A non-lawyer may represent a claimant before the Cadastral Court [Sec. 9, Act. No. 2259] Any person appointed to appear for the government of the Philippines in accordance with law [Sec. 33, Rule 138]

LIMITATIONS ON APPEARANCE OF NON-LAWYERS BEFORE THE COURTS 1.

2. 3.

He should confine his work to non-adversary contentions. He should should not not undertake undertake purely legal work, such as the examination or crossexamination of witnesses, or the presentation of evidence. Services should not be habitually rendered. Should not charge or collect attorney’s fees . [PAFLU vs. Binalbagan Isabela Sugar Co. 42 SCRA 302]

RIGHT OF PARTY TO REPRESENT HIMSELF Civil Cases: An individual litigant has the right to conduct

Moral Turpitude –  imports an act of baseness, vileness or

his litigation personally.

depravity in the duties which one person owes to another or to society in general which is contrary to the usually accepted and customary rule of right and duty which a person should follow.

Criminal Cases: Involving grave and less grave offenses, an

 ACADEMIC REQUIREM REQUIREMENTS ENTS FOR THE CANDIDATES CANDIDATES 1. 2.

Must have already earned a Bachelor’s Degree in Arts or Sciences (Pre-law) Law Course –  completed courses in Civil Law, Commercial Law, Remedial Law, Criminal Law, Public and International Law, Political Law, Labor and Social Legislation, Medical Jurisprudence, Taxation, Legal Ethics. [Sec. 5 and 6, Rule 138]

 APPEARANCE OF NON-LAWYER NON-LAWYER IN IN COURT

accused who is a layman must always appear by counsel; he CANNOT conduct his own defense, as his right to counsel may NOT be waived without violating his right to due process of law. By a Juridical Person: A juridical person must always appear in court by a duly licensed member of the bar, except in the municipal trial court where it may be represented by its agent or officer who need not be a lawyer.

PARTNERSHIP WITH NON-LAWYERS VOID In the formation of partnership for the practice of law, no person should be admitted or held out as a practitioner or member who is not a member of the legal profession duly authorized to practice, and amenable to professional discipline.

MAY A NON-LAWYER APPEAR IN COURT? General Rule: Rule: Only those who are licensed to practice law can appear and handle cases in court. Exceptions: 1.

Before the MTC - a party may conduct his case or

PRACTICE BY CORPORATION It is well settled that a corporation CANNOT engage in the practice of law. It may, however, hire an attorney to attend to and conduct its own legal business or affairs. But it cannot practice law directly or indirectly by

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3 MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES

3.

4.

good moral character and other special disqualifications, the taking of an oath and becoming an officer of the court, subject to its discipline, suspension or removal. The relation of trust and confidence cannot arise where the attorney is employed by a corporation to practice for it, his employer and he owing, at best, a secondary and divided loyalty to the clientele of his corporate employer. The intervention of the corporation is destructive of that confidential and trust relation and is obnoxious to the law.

PERSONS AUTHORIZED GOVERNMENT

TO

REPRESENT

THE

Any official or other person appointed or designated in accordance with law to appear for the government of the Philippines or any of its officials shall have all the rights of a duly authorized member of the bar to appear in any case in which the government has an interest, direct or indirect, or in which such official is charged in his official capacity.

RULES ON PUBLIC OFFICIALS REGARDING PRACTICE OF LAW PUBLIC OFFICIALS WHO CANNOT PRACTICE LAW IN THE PHILIPPINES 1. 2. 3. 4. 5. 6. 7. 8.

They shall not: 1. Appear as counsel before any court in any civil case wherein a local government unit or any office, agency or instrumentality of the government is the adverse party; 2. 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; 3. Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official. [Sec. 90, R.A. 7160] 4. Use property and personnel of the government except when the Sanggunian member concerned is defending the interest of the government

Judges and other officials or employees of the superior court Officials and employees of the Office of the Solicitor General Government Prosecutors President, Vice-President, members of the Cabinet, their deputies and assistants Chairmen and members of the Constitutional Commissions Ombudsman and his deputies Governors, city and municipal mayors Those who, by special law are prohibited from engaging in the practice of their legal profession

RESTRICTIONS IN THE PRACTICE OF LAW OF RETIRED JUSTICE/JUDGE As a condition of the pension provided under R.A. 910, no retiring justice or judge of a court of record or city or municipality judge during the time that he is receiving said pension shall: Appear as counsel before any court in: a. Any civil case wherein the government or any subdivision or instrumentality thereof is the adverse party; b. Any criminal case wherein an officer or an employee of the government is accused of an offense committed in relation to his office. 2. Collect any fees for his appearance in any administrative proceedings to maintain an interest adverse to the government, provincial or municipal, or to any of its legally constituted officers [Sec 1, RA 910]. 910].

REMEDIES AGAINST UNAUTHORIZED PRACTICE (DICED) 1. Petition for Injunction 2. Declaratory Relief 3. Contempt of Court 4. Disqualification and complaints for disbarment 5. Criminal complaint for estafa against a person

PUBLIC OFFICIALS WITH RESTRICTIONS IN THE PRACTICE OF LAW 1. 2. 3. 4.

Senators and Members of the House of Representatives Members of the Sanggunian Retired Justice or Judge Civil Service officers or employees without permit from their respective department heads [Noriega vs. Sison 125 SCRA 293]

who falsely represented to be an attorney to the damage of a party

PRIVILEGES AND DUTIES OF A LAWYER PRIVILEGES OF AN ATTORNEY: 1. 2.

RESTRICTIONS IN THE PRACTICE OF LAW OF MEMBERS OF LEGISLATURE CASES: A lawyer-member of the legislature is only prohibited from appearing as counsel before any court of justice, electoral tribunals or quasi-judicial and administrative bodies. The word “appearance” includes not only arguing a case before any such body but also filing a pleading on behalf of a client as “by simply filing a formal motion, plea or answer”.  [Ramos vs. Manalac 89 Phil 270] Neither can he allow his name to appear in such pleading by itself or as part of a firm name under the signature of another qualified lawyer because the signature of an agent amounts to signing of a non-qualified senator or congressman, the office of an attorney being originally of agency, and because he will, by such act, be appearing in

3. 4.

5.

To practice law during good behavior before any judicial, quasi-judicial, or administrative tribunal. The first one to sit in judgment on every case, to set the judicial machinery in motion. Enjoys the presumption of regularity in the discharge of his duty. He is immune, in the performance of his obligation to his client, from liability to a third person insofar as he does not materially depart from his character as a quasi-judicial officer. His statements, if relevant, pertinent or material to the subject of judicial inquiry are absolutely privileged regardless of their defamatory tenor and of the presence of malice.

OTHER PRIVILEGES: First grade civil service eligibility for any position in the classified service in the government the duties of which require knowledge of law.

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Court-   respect or defend against criticisms, uphold

1.

authority and dignity, obey order and processes, assist in the administration of justice. Bar- candor, fairness, courtesy and truthfulness, avoid encroachment in the business of other lawyers, uphold the honor of the profession. Client- entire devotion to client’s interest. Public- should not violate his responsibility to society, exemplar for uprighteousness, ready to render legal aid, foster social reforms, guardian of due process, aware of special role in the solution of special problems and be always ready to lend assistance in the study and solution of social problems.

2.

3. 4.

I, ____________, do solemnly swear that I will maintain allegiance to the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor 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 this voluntary obligation without any mental reservation or purpose of evasion. So help me God.

SPECIFIC DUTIES OF A LAWYER (SEC. 20, RULE 138) [C2 A2R2E2D] 1. To maintain  Allegiance to the Republic of the 2. 3. 4.

5.

6.

7.

8.

9.

Philippines and to support the Constitution and obey the laws of the Philippines; To observe and maintain the Respect due to the courts of justice and judicial officers; To Counsel and maintain the respect due to the courts of justice and judicial officers; 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; To maintain inviolate the Confidence and at every peril to himself, to preserve the secrets in connection with his client and to accept no compensation in connection with his client’s business except from him or with his knowledge and approval; To  Abstain from all offensive personality and to advance no fact prejudicial to the honor and reputation of a party or witness, unless required by the justice of the cause with which he is charged; 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; Never to Reject, for any consideration personal to himself, the cause of the defenseless or oppressed; 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.

NOTARY PUBLIC A person appointed by the court whose duty is to attest to the genuineness of any deed or writing inorder to render them available as evidence of facts stated therein and who is authorized by the statute to administer various oaths.

 A.M. No. 02-8-13-SC: Rules on Notarial Practice of 2004 ( August 1, 2004)

QUALIFICATIONS OF A NOTARY PUBLIC 1. 2. 3.

4.

5.

Must be citizen of the Philippines Must be over twenty-one (21) years of age Must be a resident in the Philippines for at least one (1) year and maintains a regular place of work or business in the city or province where the commission is to be issued Must be a member of the Philippine Bar in good standing with clearances from the Office of the Bar Confidant of the Supreme Court and the Integrated Bar of the Philippines Must not have been convicted in the first instance of any crime involving moral turpitude (Rule III, Section 1)

JURISDICTION AND TERM A notary public may perform notarial acts in any place within the territorial jurisdiction of the commissioning court for a period of two (2) years commencing on the 1 st   day of January of the year in which the commissioning is made UNLESS   earlier revoked or the notary public has resigned according to these Rules and the Rules of Court (Rule III, Section 11).

POWERS AND LIMITATIONS OF NOTARIES PUBLIC POWERS 

A notary public is empowered to do the following acts:

DUTY OF COUNSEL DE OFICIO

(JAOSAC)

A counsel de oficio is expected to render effective service and to exert his best efforts on behalf of an indigent accused. He has as high a duty duty to a poor litigant as to to a paying client. client. He should have a bigger bigger dose of social conscience and a little less of self-interest.

1.  Acknowledgments; Oaths and affirmations; 2. 3. Jurats; 4. Signature witnessings; 5. Copy certifications; and 6.  Any other act authorized by these Rules. A notary public is authorized to certify the affixing of a signature by thumb or other mark on an instrument or document presented for notarization if: 1. The thumb or other mark is affixed in the presence of the notary public and of two (2) disinterested and unaffected witnesses to the instrument or document;

ROLE OF PRIVATE PROSECUTOR A private prosecutor may intervene in the prosecution of a criminal action when the offended party is entitled to indemnity and has not waived expressly, reserved or instituted the civil action for damages. He may prosecute the accused up to the end of the trial even in the absence of the public prosecutor if authorized by the chief of



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5 MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES

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witnesses) and undersi gned notary public”, and 4. The notary public notarizes the signature by thumb or other mark through an acknowledgment, jurat or signature witnessing. A notary public is authorized to sign on behalf of a person who is physically unable to sign or make a mark on an instrument or document if: 1. The notary public is directed by the person unable to sign or make a mark to sign on his behalf; 2. The signature of the notary public is affixed in the presence of two (2) disinterested and unaffected witnesses to the instrument or document; 3. Both witnesses sign their own names; 4. The notary public writes below his signature: “Signature affixed by notary in the presence of (names and addresses of person and two (2) witnesses)”, and 5. The notary public notarizes his signature by acknowledgment or jurat (Rule IV, Section 1).

PROHIBITIONS Rule: A notary public shall not perform a notarial   General Rule: A act outside his regular place of work or business. business .   Exceptions: A notarial act may be performed at the request

of the parties in the following sites located within his territorial jurisdiction: a. Public offices, convention halls and similar places where oaths of office may be administered; b. Public function areas in hotels and similar places for the signing of instruments or documents requiring notarization; c. Hospitals and medical institutions where a party to the instrument or document is confined for treatment; and d. Any place where a party to the instrument or document requiring notarization is under detention. 

A person shall not perform a notarial act if: 1. the person involved as signatory to the instrument or documenta. Is not in the notary’s presence at the time of the notarization; and b. Is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules (Rule IV, Section 2). 2. the certificate containing an information known or believed to be false; and 3. he shall not affix an official signature or seal on a notarial certificate that is incomplete (Rule IV, Section 5).

DISQUALIFICATIONS A notary public is disqualified from performing a notarial if he: 1) Is a party to the instrument or document; 2) Will receive, as a direct or indirect result any commission, fee, advantage, right, title, interest, cash, property, or other consideration, except as provided that is to be notarized;

1)

2)

3)

4)

When the notary knows or has good reason to believe that the notarial act or transaction is unlawful or immoral. When the signatory shows a demeanor which engenders in the mind of the notary public reasonable doubt as to the former’s knowledge of the consequences of the transaction requiring a notarial act. If in the notary’s judgment, the signatory is not acting in his/her own free will (Rule IV, Section 4). If the document or instrument to be notarized is considered as an improper document by these Rules.

NOTE:  A blank or incomplete instrument or document OR an instrument or document without appropriate notarial certification is considered an Improper Instrument/Document (Rule IV, Section 6).

NOTARIAL CERTIFICATES Contents of the Concluding part of the Notarial Certificate: 1) The name of the notary public as exactly indicated in the commission; 2) The serial number of the commission of the notary public; 3) The words “Notary Public” and the prov ince or city where the notary public is commissioned, the expiration date of the commission and the office address of the notary public; and 4) The Roll of Attorneys’ number, the Professional Tax Receipt number and the place and date of issuance thereof and the IBP Membership number (Rule VIII, Section 2).

REVOCATION OF COMMISSION The Executive Judge shall revoke a commission for any ground on which an application for a commission may be denied. In addition, the Executive Judge may revoke the commission of or impose sanctions upon any notary public who: 1) Fails to keep a notarial register; 2) Fails to make the appropriate entry or entries in his notarial register concerning his notarial acts; 3) Fails to send the copy of the entries to the Executive Judge within the first ten (10) days of the month following; 4) Fails to affix to acknowledgments the date of expiration of his commission; 5) Fails to submit his notarial register, when filled, to the Executive Judge; 6) Fails to make his report, within a reasonable time, to the Executive Judge concerning the performance of his duties, as may be required by the Judge; 7) Fails to require the presence of the principal at the time of the notarial act; 8) Fails to identify a principal on the basis of personal knowledge or competent evidence; 9) Executes a false or incomplete certificate under Section 5, Rule IV; 10) Knowingly performs or fails to perform any other act prohibited or mandated by these Rules; and 11) Commits any other dereliction or act which in the judgment of the Executive Judge constitutes good cause for the revocation of the commission or

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1) 2)

3)

Knowingly acts or otherwise impersonates a notary public; Knowingly obtains, conceals, defaces, or destroys the seal, notarial register, or official records of a notary public; and Knowingly solicits, coerces, or in any way influences a notary public to commit official misconduct (Rule XII, Section 1).

defendant (a) is confined in prison, (b) without means to employ an attorney, (c) desires to be defended de oficio.

House Counsel –  one who acts as attorney for business though carried as an employee of that business and not as an independent lawyer.

Lawyer – this is the general term for a person trained in the TERMS TO REMEMBER

law and authorized to advice and represent others in legal matters

 Amicus Curiae-  is an experienced and impartial attorney

Lead Counsel –  the counsel on either side of a litigated

invited by the court to appear and help in the disposition of the issues submitted to it. It implies friendly intervention of counsel to call the attention of the court to some matters of law or facts which might otherwise escape its notice and in regard to which it might go wrong. An amicus curiae appears in court not to represent any particular party but only to assist the court.

action who is charged with the principal management and direction of a party’s case, as distinguished from his juniors or subordinates.

Of Counsel –  an experienced lawyer, usually a retired member of the judiciary, employed by law firms as consultants.

Practicing Lawyer – one engaged in the practice of law who  Amicus Curiae par excellence –  bar associations who appear in court as amici curiae or friends of the court. Acts merely as a consultant to guide the court in a doubtful question or issue pending before it.

by license are officers of the court and who are empowered to appear, prosecute and defend a client’s cause.

Pro Se -  an appearance by a lawyer in his own behalf.  Attorney ad hochoc-  a person named appointed by the court to defend an absentee defendant in the suit in which the appointment is made.

 Attorneys-At-Law  Attorneys-At-Law – that class of persons who are licensed officers of the courts empowered to appear, prosecute and defend, and upon whom peculiar duties, responsibilities and liabilities are developed by law as a consequence.

Trial Lawyer – one who personally handles cases in court, administrative agencies of boards which means engaging in actual trial work, either for the prosecution or for the defense of cases of clients.

II .THE CANONS OF PROFESSIONAL RESPONSIBILITY Chapter I: The Lawyer and Society CANON 1.

Uphold the Constitution and obey the laws of the land

2.

Make legal services available in an efficient and convenient manner Use of true, honest, fair, dignified and objective information in making known legal services Participate in the improvement of the legal system

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

3.

 Attorney of record- the attorney whose name is entered in

4.

the records of an action or suit as the lawyer of a designated party thereto.

5.

Keep abreast of legal development and participate in continuing legal education program and assist in disseminating information regarding the law and jurisprudence

6.

Applicability of the CPR to lawyers in the government service

Bar and Bench – “Bar” refers to the whole body of attorneys and counselors collectively, the members of the legal profession: “Bench” denotes the whole body of judges. Bar Association –  an association of members of the legal profession like the IBP where membership is integrated or compulsory.

Client – one who engages the services of a lawyer for legal

Chapter II: The Lawyer and the Legal Profession CANON -

advice or for purposes of prosecuting or defending a suit in behalf and usually for a fee.

Counsel/Attorney Counsel/Attorney de oficio – an attorney appointed by the court to defend an indigent defendant in a criminal action. In a criminal action, if the defendant appears without an attorney, he must be informed b y the court that it is his right to have an attorney before being arraigned and must be asked if he desires the aid of an attorney. If he desires and is unable to employ an attorney, the court must assign a counsel de oficio to

7.

At all times uphold the integrity and dignity of the Profession and support the activities of the IBP

8.

Conduct himself with courtesy, fairness and candor toward his colleagues and avoid harassing tactics

9.

Not to directly or indirectly assist in the unauthorized practice of law

Chapter III: The Lawyer and the Courts CANON -

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7 MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES 12. Duty to assist in the speedy and efficient administration of justice 13. Rely upon the merits of his cause, refrain from any impropriety which tends to influence courts, or give the appearance of influencing the court

Chapter IV: The Lawyer and the Client CANON 14. Not to refuse his services to the needy 15. Observe candor, fairness and loyalty in all his dealings and transactions with clients 16. Hold in trust all the moneys and property of his client that may come to his possession 17. Owes fidelity to clients cause and be mindful of the trust and confidence reposed in him 18. Serve client with competence and diligence 19. Represent client with zeal and within the bounds of law 20. Charge only fair and reasonable fees 21. Preserve the confidence and secrets of client even after the atty.-client relation is terminated 22. Withdraw services only for good cause and upon notice

LAWYER’S DUTIES TO SOCIETY  CANON 1: UPHOLD THE CONSTITUTION AND OBEY THE

LAWS OF THE LAND DISCOURAGING LAW SUITS Under Rule 1.03 , a lawyer shall not for any corrupt motive or interest, encourage any suit or proceeding or delay any man’s cause. CRIME OF MAINTENANCE – A lawyer owes to society and to the court the duty duty not to stir up litigation. litigation. The following are unprofessional acts  within the prohibition: 1. Volunteering advice advice to bring lawsuit lawsuit except where ties of blood, relationship, and trust make it a duty to do so. 2. Hunting up defects in titles titles or other causes of action and informing thereof to be employed to bring suit or collect judgment, or to breed litigation by seeking out claims for personal injuries or any other grounds to secure them as clients. 3. Employing agents or runners for like purposes. 4. Paying direct or indirect reward to those who bring or influence the bringing of such cases to his office. 5. Searching for unknown unknown heirs heirs and and soliciting soliciting their employment.

 Ambulance Chaser – is a lawyer who haunts hospitals and visits the homes of the afflicted, officiously intruding their presence and persistently offering his service on the basis of a contingent. Ambulance chasing has spawned recognized evils such as: (FSMD) 1. Fomenting of litigation with resulting burdens on the courts and the public. Subornation of perjury. 2. 3. Mulcting of innocent persons by judgments, upon manufactured causes of action. 4. Defrauding of injured persons having proper causes of action but ignorant of legal rights and court procedures by means of contracts which retain exorbitant percentages of recovery and illegal charges for court costs and expenses and by settlement made for quick returns of fees and against the just rights of the injured persons. CANON 2: MAKING AVAILABLE EFFICIENT LEGAL

SERVICE A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed. (Rule 2.01) Even if the lawyer does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary t o safeguard the latter’s rights. (Rule 2.02) CANON 3: USE OF TRUE, HONEST, FAIR AND OBJECTIVE

INFORMATION IN MAKING KNOWN LEGAL SERVICES  ADVERTISING  ADVERTISING AND SOLICITATION SOLICITATION General Rule: Rule: A lawyer cannot advertise his talent, as he is a member of an honorable profession whose primary purpose is to render public service and help secure justice and in which the remuneration is a mere incident. It is highly unethical for an attorney to advertise his talents or skill as a merchant advertises his wares . [In re: Tagorda 53 Phil 42] Exceptions: Exceptions: 1. 2.

3. 4. 5.

Writing legal articles Engaging in business or other occupations except when such could be deemed improper, be seen as indirect solicitation or would be the equivalent of law practice. Law lists, but only brief biographical and informative data Ordinary, professional cards Notice to other local lawyers and publishing in a legal journal of one’s availability to act as an associate for them

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agents or brokers and makes the act malpractice [ Rule 138, sec. 27, Rules of Court].  Court].   The rule prohibits professional touting. Neither shall a lawyer “charge rates lower than those customarily prescribed unless the circumstances so warrant.”

USE OF LAW FIRM NAME 1. In the choice of a firm name, no false, misleading or assumed name shall be used. The continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased. [Rule 3.02, Code of Professional Responsibility]. Responsibility] . Hence, the rule abandoned the doctrine laid down in the case of In re: Sycip, 92 SCRA 1 (1979). Reason:  Reason:  All of the partners by their joined efforts over a period of years contributed to the goodwill attached to the firm name, and this goodwill is disturbed by a change in firm name every time a partner dies. 2. Where a partner accepts public office, he shall withdraw from the firm and his name shall be dropped from the firm name unless the law allows him to practice concurrently. [Rule 3.02, Code of Professional Responsibility]. Responsibility] . 3. Filipino lawyers cannot practice law under the name of a foreign law firm, as the latter cannot practice law in the Philippines and the use of the foreign law firm in the country is unethical. (Dacanay ( Dacanay vs. Baker & McKenzie, G.R. Adm. Case No. 2131) CANON 4: PARTICIPATE IN THE IMPROVEMENT OF THE

LEGAL SYSTEM Examples: 1. Presenting position papers or resolutions for the introduction of pertinent bills in Congress; 2. Petitions with the SC for the amendment of the Rules of Court. CANON 5: KEEP ABREAST OF LEGAL DEVELOPMENTS  AND PARTICIPATE PARTICIPATE IN CONTINUI CONTINUING NG LEGAL EDUCATION PROGRAM

e. f. g.

Parties Exempted from the MCLE 1.

The President, Vice-President, and the Secretaries and Undersecretaries of executive departments; 2. Senators and Members of the House of Representatives; 3. The Chief Justice and Associate Justices of the SC, incumbent and retired justices of the judiciary, incumbent members of the Judicial and Bar Council and incumbent court lawyers covered by the Philippine Judicial Academy Program of continuing legal education; 4. The Chief State Counsel, Chief State Prosecutor and Assistant Secretaries of the Department of Justice; 5. The Solicitor-General and the Assistant SolicitorGeneral; 6. The Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel; 7. The Chairman and Members of the Constitutional Commissions; 8. The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsman and the Special Prosecutor of the Office of the Ombudsman; 9. Heads of government agencies exercising quasijudicial functions; 10. Incumbent deans, bar reviewers and professors of law who have teaching experience for at least 10 years in accredited law schools; 11. The Chancellor, Vice-Chancellor and members of the Corps of Professional Lecturers of the Philippine Judicial Academy; and 12. Governors and Mayors

Other Exempted Parties 1.

THREE-FOLD OBLIGATIONS OF A LAWYER:

1.

He owes it to himself to continue improving his knowledge of the law.

2.

He owes it to his profession to take an active interest in the maintenance of high standards of legal education.

3.

He owes it to the lay public to make the law a part of their social consciousness.

4 hours – writing and oral advocacy 2 hours –  international law and international conventions 6 hours –  such other subjects as may be prescribed by the Committee on MCLE

2.

Those who are not in law practice, private or public Those who have retired from law practice with the approval of the IBP Board of Governors

Good Cause for Exemption from or modification of requirement A member may file a verified request   setting forth good cause for exemption (such as physical disability, illness, post-graduate study abroad, proven expertise in law) from compliance with or modification of any of the requirements, including an extension of time for compliance, in accordance with

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9 MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES Restriction Against Using Public Office to Promote Private Interest Public officials and employees during their incumbency shall NOT: 1. Own, control, manage or accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law 2. Engage in the private practice of their profession unless authorized by the constitution or law, provided that such practice will not conflict or tend to conflict with their off icial functions. 3. Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office 4. Use or divulge confidential or classified information officially known to them by reason of their office and not available to the public.

Restrictions Against Former Official from Accepting Certain Employment A lawyer shall NOT, after leaving the government service, accept engagement or employment in connection with any matter in which he had intervened while in said service. [Rule 6.03, Code of Professional Responsibility] Section 7 (b), RA 6713 prohibits any former public official or employee for a period of one year after retirement or separation from office to practice his profession in connection with any other matter before the office he used to be with.

Purpose: To protect the public, the court, the client and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the court. 1. A lawyer is prohibited from allowing an intermediary to intervene in the performance of his professional obligation. 2. A lawyer cannot delegate to any unqualified person the performance of any task which by law may only be performed by a member of the Bar in good standing. 3. A lawyer cannot divide or stipulate a fee for legal services with a person not licensed to practice law. Exceptions: 1. 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; 2. Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; 3. 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 arrangement.

LAWYER’S DUTIES TO COURTS CANON 10: CANDOR, FAIRNESS AND GOOD FAITH TO

COURTS THE LAWYER AND THE LEGAL PROFESSION CANON 7: UPHOLD THE INTEGRITY AND DIGNITY OF THE PROFESSION AND SUPPORT THE ACTIVITIES OF THE IBP A lawyer shall be answerable for knowingly making a false statement or suppressing a material fact, in connection with his application for admission to the bar. (Rule 7.01) A lawyer shall not, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. (Rule 7.03)

CASE: Counsel’s act of filing multiple complaints against herein complainant’s reflects on his fitness to be a member of the legal profession. His act evinces vindictiveness, vindictiveness, a decidedly undesirable trait whether in a lawyer or another individual, as complainants were instrumental in respondent’s dismissal from the judiciary. (Saburnido vs. Madrono, 366 SCRA 1, September 26, 2001)

A lawyer shall NOT do any falsehood, nor consent to the doing of any in court; nor shall be misled, or allow the court to be misled by any artifice. (Rule 10.01)

REQUIREMENTS OF CANDOR: 1. A lawyer shall not suppress material and vital facts which bear on the merit or lack of merit of complaint or petition; 2. A lawyer shall volunteer to the court any development of the case which has rendered the issue raised moot and academic; 3. Disclose to court any decision decision adverse to his his position of which opposing counsel is apparently ignorant and which court should consider in deciding a case; 4. He shall not represent represent himself himself as lawyer for a client, appear for client in court and present pleadings, o nly to claim later that he was not authorized to do so. Note: A lawyer is not an umpire but an advocate. advocate. He is not obliged to refrain from making every proper argument in support of any legal point because he is not convinced of its inherent soundness. soundness. Neither is he obliged to suggest

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A lawyer’s language should be forceful but dignified, emphatic but respectful as befitting an advocate and in keeping with the dignity of the legal profession.

of court, without prejudice to the filing of a criminal action against the guilty party. The lawyer may also be subjected to disciplinary proceedings.

RIGHT AND DUTY OF LAWYER TO CRITICIZE COURTS The fact that a person is a lawyer does not deprive him of the right, enjoyed by every citizen, to comment on and criticize the actuations of a judge. However, what he can ordinarily say against a concluded litigation and the manner the judge handed down the decision therein may NOT generally be said to a pending action. The court, in a pending litigation, must be shielded from embarrassment or influence in its all important duty of deciding the case. On the other hand, once a litigation is concluded the judge who decided it is subject to the same criticism as any other public official because then his ruling becomes public property and is thrown open to public consumption. 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.

CANON 13: AVOIDING IMPROPRIETY THAT TENDS TO

INFLUENCE THE COURT A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court. A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with judges [Rule 13.01, Code of Professional Responsibility] A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party. [Rule 13.02, Code of Professional Responsibility] A lawyer shall not brook nor invite interference by another branch or agency of the government in the normal course of judicial proceedings. [Rule 13.03 Code of Professional Responsibility]

CANON 12: ASSISTING IN SPEEDY AND EFFICIENT

 ADMINISTRATION  ADMINISTRATION OF JUSTICE A lawyer shall NOT appear for trial unless he has adequately prepared himself on the law and the facts of his case, the evidence he will adduce and the order of its presentation. He should also be ready with the original documents for comparison with the copies. [Rule 12.01 Code of Professional Responsibility] A lawyer shall NOT  unduly delay a case, impede the execution of judgment or misuse court processes. [Rule 12.04, Code of Professional Responsibility]

CASE:

The Court further commented that it is understandable for a party in the situation to make full use of every conceivable legal legal defense the law law allows it. In the appraisal, however, of such attempts to evade liability to which a party should respond, it must ever be kept in mind that procedural rules are intended as an aid to justice, not as means for its frustration. Technicalities should give way to the realities of the situation. (Economic Insurance Co., Inc. vs. Uy Realty Co.) The duty of a lawyer to assist in the speedy and efficient administration of justice includes the duty to refrain from talking to his witness during a break or recess in the trial while the witness is still under examination.

FORUM SHOPPING   - the act of filing repetitious suits in different courts. It is committed through the following: 1. Going from one court to another in the hope of securing a favorable relief in one court, which

 ATTORNEY-CLIENT  ATTORNEY-CLIENT RELATIONSHI RELATIONSHIP P NATURE OF RELATION 1.

strictly personal;

2.

highly confidential and fiduciary

GENERAL RULES RELATIONSHIPS 1. 2. 3. 4. 5.

PROTECTING

ATTORNEY-CLIENT

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

CREATION OF RELATION: FORMS OF EMPLOYMENT AS COUNSEL TO A CLIENT 1. Oral –  when the counsel is employed without a 2.

written agreement, but the conditions and amount of attorney’s fees are agreed upon. Express   when the terms and conditions including the amount of fees, are explicitly stipulated in a written document which may be a private or public document. Written contract of attorney’s fees is the l aw between the lawyer and

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11 MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES  2.

In case of unjustified dismissal of an attorney, he shall be entitled to recover from the client full compensation stipulated in the contract  [RA contract  [RA 636].

CANON 14: NOT TO REFUSE HIS SERVICES TO THE NEEDY

RIGHT TO DECLINE EMPLOYMENT; EXCEPTIONS General Rule: A lawyer is not obliged to act as legal counsel for any person who may wish to become his client. He has the right to decline employment. Exceptions: Exceptions:

1. 2.

3.

A lawyer shall not refuse his services to the needy. He shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life or because of his own opinion regarding the guilt of said person. He shall not decline, except for serious and sufficient cause like (1) if he is not in a position to carry out effectively or competently; (2) if he labors under a conflict of interest between him and the prospective client or between a present and prospective client.

Reasons: IBP Reasons: IBP Guidelines, Art.1, Sec. 1. Public Service: 1. Legal aid is not a matter of charity but a public responsibility. 2. It is a means for correction of social imbalance. 3. Legal aid offices must be so organized as to give maximum possible assistance to indigent and deserving members of the community and to forestall injustice.

DUTY TO DECLINE EMPLOYMENT A lawyer should decline professional employment even though how attractive the fee offered may be if its acceptance will involve: 1. A violation of any of the rules of the legal profession. 2. Nullification of a contract which he prepared. 3. Advocacy in any matter in which he had intervened while in the government service. 4. Employment, the nature of which might easily be used as a means of advertising his professional services or his skill. 5. Employment with a collection agency which solicits business to collect claims. 6. Any matter in which he knows or has reason to believe that he or his partner will be an essential witness for the prospective client.

ETHICAL CONSIDERATIONS IN TAKING A BAD CASE In a Criminal Case: A lawyer may accept a losing criminal case because every accused is presumed innocent and is entitled to counsel.

4.

A lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or injure the opposite party or to work oppression or wrong. However, a lawyer may accept a losing civil case provided that, in so doing, he must not engage in dilatory tactics and must advise his client about the prospects and advantage of settling the case through a compromise.

LAWYER’S DUTIES TO CLIENT CANON 15: CANDOR, FAIRNESS AND LOYALTY IN HIS

DEALINGS AND TRANSACTIONS WITH HIS CLIENTS CONFLICT OF INTEREST Duty of a Lawyer to His Client in Case There is Conflict of Interest A lawyer, in conferring with a prospective client shall ascertain as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client. [Rule client. [Rule 15.01] It is the duty of a lawyer at the time of retainer to disclose to the client all circumstances of his relations to the parties and any interest in connection with the controversy, which might influence the client in the selection of counsel. It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of facts. Within the meaning meaning of this Canon, a lawyer represents conflicting interests when, in behalf of one client it is his duty to contend for that which duty to another client requires him to oppose.

Tests to Determine Conflicting Interests 1.

2.

3.

Will the attorney be required to contest for that which his duty to another client requires him to oppose? (Conflicting duties) Will the acceptance of a new relation invite suspicion and/or actually lead to unfaithfulness or double-dealing towards another client? (Invitation of suspicion) Will the attorney be called upon in his new relation to use against his first client any knowledge acquired in the previous employment? (Use of prior knowledge obtained)

INSTANCES WHEN A LAWYER IS CONSIDERED HAVING CONFLICTING DUTIES 1.

As an employee of a corporation whose duty is to attend legal affairs, he cannot join a labor union of employees in that corporation;

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3.

4.

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

Jurisprudence instructs that there is a CASE: representation of conflicting interests if the acceptance of the new retainer will require the attorney to do anything which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation, to use against his first client any knowledge acquired through their connection. Another test to determine if there is a representation of conflicting interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof. (Pormento, Sr. vs. Atty. Pontevedra, A.C. No. 5128, March 31, 2005) CANON 16: LAWYER’S DUTY TO HOL D IN TRUST ALL THE MONEY AND PROPERTY OF HIS CLIENT THAT MAY COME TO HIS POSSESSION PROHIBITION AGAINST PURCHASE OF PROPERTY IN LITIGATION

Elements of Prohibition 1. 2. 3. 4.

There is an attorney-client relationship; The property is in litigation; The attorney is the counsel of record in the case; The attorney, by himself or through an agent, purchases such property during the pendency of said case [Art. 1491 of the Civil Code]

deserves full attention, diligence, skill and competence, regardless of importance. importance . (Rollon vs. Atty. Naraval, A.C. No. 6424, March 4, 2005) CANON 18: SERVE CLIENT WITH COMPETENCE AND

DILIGENCE DUTY TO PROTECT CLIENT’S INTEREST The attorney’s duty to safeguard the client’s interests commences from his retainer until his effective release from the case or the final disposition of the whole subject matter of the litigation. litigation. During that period period he is expected to take such reasonable steps and such ordinary care as his c lient’s interests may require.

PREPARATION OF PLEADINGS A lawyer shall not handle any legal matter without any adequate preparation. (Rule 18.02) A lawyer should prepare his pleading with great care and circumspection. He should refrain from using abrasive and offensive language, for it merely weakens rather than strengthens the force of legal reasoning and detracts from its persuasiveness. In preparing a complaint for damages, counsel for plaintiff should plaintiff  should allege and state the specific amounts claimed not only in the body of the complaint but also in the prayer, so that the proper docket fees can be assessed and paid.

DUTY TO KEEP CLIENT FULLY INFORMED A lawyer shall keep the client informed of the status of his case. (Rule 18.04) He should notify his client of an adverse decision while within the period to appeal to enable his client to decide whether to seek an appellate review. He should communicate with him concerning the withdrawal of appeal with all its adverse consequences. The client is entitled to the fullest disclosure of the mode or manner by which his interest is defended or why certain steps are taken or omitted.

Other Instances Where Rule is Inapplicable 1.

Where the property purchased by a lawyer was

Doctrine of Imputed Knowledge

the knowledge acquired

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13 MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES 4. 5.

Thoroughly explain to him the import of a guilty plea and the inevitable conviction that will follow See to it that the prescribed procedure which experience has shown to be necessary to the administration of justice is strictly followed and disclosed in the court records.

1.

2. 3.

DUTY TO COMPLY WITH CLIENT’S LAWFUL REQUEST A client shall respond within a reasonable time to the client’s request for information. (Rule 18.04) A lawyer should endeavor to seek instruction from his client on any substantial matter concerning the litigation, which may require decision on the part of the client, such as whether to compromise the case or to appeal an unfavorable judgment. He should give his client sound advice on any such and similar matters and comply with the client’s lawful instructions relative thereto. He should resist and should never follow any unlawful instruction of his client.

4.

Party is not bound by the attorney’s appearance in the case in or by the judgment rendered therein. Court does not acquire jurisdiction over the person. The adverse party who has been forced to litigate as a defendant by the unauthorized action on the part of the attorney for the plaintiff may, on that ground, move for the dismissal of the complaint. If unauthorized appearance is willful, attorney may be cited for contempt as an officer of the court who has misbehaved in his official transactions, and he may be disciplined for professional misconduct.

Ratification of Unauthorized Appearance EXPRESS : categorical assertion by client that he 1. 2.

CANON 19: DUTY TO REPRESENT CLIENT WITH ZEAL

 AND WITHIN WITHIN THE BOUNDS BOUNDS OF THE THE LAW

has authorized a lawyer or that he confirms his authorization to represent him in the case. IMPLIED : where a party with knowledge of the fact that a lawyer has been representing him in a case, accepts benefits of representation or fails to promptly repudiate the assumed authority.

DUTY TO RESTRAIN CLIENT FROM IMPROPRIETY A lawyer should use his best efforts to restrain and to prevent his client from doing those things which he himself ought not to do, particularly with reference to the conduct toward the court, judicial officer, witness and suitor and if the client persists in such wrong doing, the lawyer should terminate their relation.

Requisites for Implied Ratification by Silence 1.

2. 3.

Party represented by lawyer must be of age, competent or if suffers from disability, has guardian or legal representative. Party or guardian is aware of attorney’s representation. He fails to promptly repudiate assumed authority.

Duty to Advice Candidly As officers of the court, counsels are under obligation to advise their clients against making untenable and inconsistent claims. The counsel should inform his client and dissuade him from filing the case if totally devoid of merit. If he finds that his client’s cause as fairly meritorious and ripe for judicial adjudication, he should refrain from making bold and confident assurances of success.

 Authority of of Attorney in the Conduct Conduct of Litigation Litigation A lawyer has authority to bind the client in all matters of ordinary judicial procedure. He can bind his client on substantial matters only with the client’s express or implied consent. A client may waive, surrender, dismiss, or compromise any of his rights involved in a litigation in favor of the other party even without or against the consent of his attorney.

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4. 5.

who has good cause prejudiced and denied a day in court. Gross negligence of lawyer. Lack of acquaintance with technical part of procedure.

CANON 20: DUTY OF THE LAWYER TO CHARGE ONLY

FAIR AND REASONABLE FEES

2.

Situations when Counsel cannot Recover the Full  Amount of Attorney’s Fees Despite Written Contract 1.

 ATTORNEY’S FEES FEES 2.

Factors in Determining Attorney’s Fees (Rule 20.1, Canon 20) (TINSAP²C³) 1. ime spent and the extent of the services rendered t ime or required; 2. novelty and the difficulty of the questions involved; 3. importance of the subject matter; skill demanded; 4. probability of losing other employment as a result 5. of the acceptance of the proffered case; 6. customary charges for similar services and the schedule of fees of the IBP Chapter to which he belongs; 7. amount involved in the controversy and the benefits resulting to the client from the service; service; 8. contingency or certainty of compensation; character of the employment whether occasional 9. or established; and 10. t he he professional standing of the lawyer.

fees are paid whether or not there are cases referred to the lawyer. Special retainer –  fee for a specific case or service rendered by the lawyer for the client.

3.

4. 5. 6. 7. 8.

When the services called for were not performed as when the lawyer withdrew before the case was finished. He will be allowed allowed only reasonable fees fees When there is a justified dismissal of the attorney, the contract will be nullified and payment will be on the basis of quantum quantum meruit only. A contrary stipulation will be invalid. When the stipulated attorney’s fees are unconscionable i.e., when it is disproportionate as compared to the value of services rendered and is revolting to human conscience. When the stipulated attorney’s fees are in excess of what is expressly provided by law. When the lawyer is guilty of fraud or bad faith toward his client in the matter o f his employment When the counsel’s services are worthless because of h is negligence. When contract is illegal, against morals or public policy. Serving adverse interest unless lawyer proves that it was with the consent of both parties.

Quantum Meruit  means as much as the lawyer deserves or such amount as his services merit.

Two Concepts of Atto rney’s Fees 1. Ordinary- it is the reasonable compensation paid

2.

to the lawyer for the legal services he had rendered the client. The basis of this compensation is the fact of employment by the client. Extraordinary- an indemnity for damages ordered by the court to be paid by the losing party to the prevailing prevailing party in a litigation. litigation. The basis of this is any of the cases authorized by law and is

Guides for Determining Attorney’s Fees on Quantum

Meruit Basis (TINS) 1. Time spent and extent of the services rendered or

2.

required –  a lawyer is justified in fixing higher fees when the case is so complicated and requires more time and effort to finish it. Novelty and difficulty of questions involved – when the questions in a case are novel and difficult, greater effort, deeper study and research

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15 MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES former a portion of the thing or property recovered as compensation. It is void for being against public policy. 3.

government funds if available based on the amount fixed by the court.  Amicus Curiae - not entitled to attorney’s fees

CONTINGENT vs. CHAMPERTOUS 

CONTINGENT CONTRACT

CHAMPERTOUS CONTRACT

1. Contingent fee is payable in cash 2. Lawyers do not undertake to pay all expenses of litigation

1. Payable in kind ONLY 2.Lawyers undertake to pay all expenses of litigation

3. Not prohibited

3. Void

Enforcement of Attorney’s Fees General Rule: A lawyer should avoid the filing of any case against client for enforcement of attorney’s fees Exceptions: 1. to prevent imposition 2. to prevent injustice 3. to prevent fraud Who are Entitled to Attorney’s Fees General Rule: Only lawyers are entitled to attorney’s fees. The same cannot be shared with a non-lawyer. It is immoral. Exceptions: A lawyer may divide a fee for legal services with persons not licensed to practice law: (CPR) 1. a lawyer undertakes to complete unfinished legal business of a deceased lawyer; 2. there is a pre-existing agreement with a partner or associate that, upon the latter’s death, money shall be paid over a reasonable period of time to his estate or to persons specified in the agreement; 3. a lawyer or law firm includes non-lawyer employees in retirement plan, even if the plan is based in whole or in part on the profit sharing agreement

 ATTORNEY’S LIEN LIEN Charging Lien  - is an equitable right to have the fees and lawful disbursements due a lawyer for his services in a suit secured to him out of the judgment for the payment of money and executions issued in pursuance thereof in the particular suit.

Requisites of a Charging Lien 1.

Existence of a client-lawyer relationship;

2.

The attorney has rendered services;

3.

Favorable judgment secured by the counsel for his client which judgment is a money judgment;

4.

The attorney has a claim for attorney’s fees or advances;

5.

Noting into the records of the case through the filing of an appropriate motion of the statement of the lawyer’s claim for attorney’s fee with copies furnished to the client and adverse party.

Retaining Lien – a right merely to retain the funds, documents, and papers as against the client until the attorney is fully paid his fees.

Requisites: (ALU) 1.  Attorney-client relationship; 2. Lawful possession by the lawyer of the client’s funds, documents and papers in his professional capacity; 3.

Unsatisfied claim for attorney’s fees

RETAINING LIEN VS.CHARGING LIEN

Point Distinction

of

Retaining Lien

Charging Lien

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2005 CENTRALIZED B AR OPERATIONS

16

5. Notice

6.  Applicability

7.Extinguishment

Client need not be notified to make it effective.

Notice must be served upon client and adverse party

May be exercised before judgment or execution or regardless thereof.

Generally, exercisable only when the attorney had already secured a favorable judgment for his client. When client loses action as lien may only be enforced against judgment awarded in favor of client, proceeds thereof/ executed thereon.

When possession lawfully ends when as lawyer voluntarily parts with funds, documents, and papers of client or offers them as evidence.

CANON 21: PRIVILEGED COMMUNICATION

Requisites: 1.

There exists an attorney and client relationship or a kind of consultancy relationship with a prospective client. That is, legal advise is what is sought;

3.

When disclosure is made to protect the lawyer’s rights (i.e., to collect his f ees or defend himself, his employees or associates or by judicial action).

4.

When such communications are made in contemplation of a crime or the perpetuation of a raud f raud

LAWYER AS WITNESS A lawyer shall avoid testifying in behalf of his client. Reason: Reason: The function of a witness is to tell the facts as he recalls them in answer to questions. The function of an advocate is that of a partisan. It is difficult to distinguish between the zeal of an advocate and the fairness and impartiality of a disinterested witness. Instances when a lawyer may NOT testify  as a witness in a case which he is handling for a client: 1. When such would adversely affect any lawful interest of the client with respect to which confidence has been reposed on him; 2. Having accepted a retainer, he cannot be a witness against his client; 3. He cannot serve conflicting interests; 4. When he is to violate the confidence of his client; 5. When as an attorney, he is to testify on the theory of the case. Instances when a lawyer may testify   as a witness in a case which he is handling for a client: 1. On formal matters, such as the mailing, authentication or custody of an instrument and the like; 2. Acting as an expert on his fee; 3. Acting as an Arbitrator; 4. Deposition; 5. On substantial matters in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel.

INTERVIEWING WITNESSES

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17 MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES TERMINATION OF ATTORNEY-CLIENT RELATIONSHIP

Duties of a Discharged Lawyer or One Who Withdraws 1.

Immediately turn-over all papers and property to which the client is entitled;

2.

To cooperate with the succeeding lawyer in the orderly transfer of the case .

Instances When a Counsel Can Withdraw His Services 1.

When the client pursues an illegal or immoral course or conduct in connection with the case he is handling; 2. When the client insists that the lawyer pursue conduct violative of the Code of Professional Responsibility; 3. When his inability to work with co-counsel will not promote the best interest of the client; 4. When the mental or physical condition of the lawyer renders it difficult for him to carry on the employment effectively; 5. When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement; 6. When the lawyer finds out that he might be appearing for a conflicting interest; (Note: In Note: In all the above cases, the lawyer must file a written motion with an express consent of his client and must wait for the approval of the court.) 7. When the lawyer is elected or appointed to public office; 8. Other similar cases [Canon 22 Rule 22.01]

NOTE: A lawyer may withdraw as counsel only with the conrent of the client and with leave of court, and only for

Conditions for Substitution of Counsel 1. 2. 3.

Written request for such substitution Written consent of the client  Written consent of the attorney to be substituted or in the absence thereof, proof of service of notice of said motion to the attorney to be substituted.

LIABILITIES OF A LAWYER LIABILITY FOR DAMAGES Requisites 1.

 Attorney - client relationship 2. Want of reasonable care & diligence 3. Injury sustained by client as proximate result thereof. Kinds of Damages 1.

Nominal –  where client lost the litigation as a

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18

2005 CENTRALIZED B AR OPERATIONS

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

7.

 Specific Acts which May Result to Criminal Liability 1. A lawyer who has undertaken the defense of client or has received confidential information from said client in a case may be criminally liable for undertaking defense of opposing party in same cause without consent of first client.[Art. 209, RPC]

of

9.

Advise client to commit contemptuous acts

law

III. BAR DISCIPLINE POWER TO DISCIPLINE ERRANT LAWYERS

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

8.

Aiding in unauthorized practice (suspended or disbarred) Unlawful retention of client’s funds

1.

The Supreme Court   has the full authority and power to (WARDS) a. b. c. d.

Warn  Admonish Reprimand Suspend and Disbar a lawyer

e. [Section 27, Rules 138, Rules of Court] 2.

The Court of Appeals  and the Regional Trial Courts are also empowered to (WARS) a. Warn b.  Admonish c. Reprimand and d. Suspend an attorney who appears before them from the practice of law

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19 MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES 2.

3. 4. 5. 6.

f. Willful disobedience of any lawful order of a superior court  g. Corruptly or willfully appearing as an attorney for a party to a case without authority to do so.

NOT  a criminal prosecution because it is not meant as a punishment depriving him of source of livelihood but rather to ensure that those who exercise the function should be competent, honorable and reliable so that public may repose confidence in them. SUI GENERIS , it is a class of its own since it is neither civil nor criminal Confidential in nature. Defense of double jeopardy is not available. Can be initiated by the SC motu propio or by the IBP. It can be initiated without a complaint;

7.

Can proceed regardless of interest of the complainants;

8.

Imprescriptible;

9.

It is itself due process of law.

2.

Acquisition of an interest in the subject matter of the litigation, either though purchase or assignment [Art. assignment [Art. 1491, Civil Code]

3.

Breach of professional duty, inexcusable negligence, or ignorance, or for the revelation of the client’s secrets  [Art. 208, Revised Penal Code]

4.

Representing conflicting interests  [Art. 209, Revised Penal Code]

Grounds for disbarment NOT EXCLUSIVE: Reason for Confidential

Making

Disbarment

Proceedings

To enable the Supreme Court to make its investigation free from any extraneous influence or interference as well as to protect the personal and professional reputation of attorneys and judges from the baseless charges of disgruntled, vindictive and irresponsible clients and litigants. [ In Re: Abistado, 57 Phil 668]

The statutory enumeration of the grounds for disbarment or suspension is not to be taken as a limitation on the general power of courts to suspend or disbar a lawyer. The inherent power of court over its officers cannot be restricted. [Quingwa vs. Puno, Admin. Case No 398, Feb. 28, 1967] The Supreme Court has disbarred or suspended lawyers for reasons not found in the statute as when their acts are contrary to honesty or good morals or do not approximate the highest degree of morality and integrity

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2005 CENTRALIZED B AR OPERATIONS

20

6.

Using vicious or disrespectful language 

d.

7.

Continue to practice after suspension  constitutes gross misconduct disregard of suspension order.

and

willful

Soliciting business  - for purpose of gain, personally or through paid agents is MALPRACTICE and agreeing with non-lawyer to divide lawyer’s fees paid by client or for solicitation by non-lawyer.

constitutes direct contempt; violation of oath and Code of Professional Responsibility.

e.

 Advertising

OTHER GROUNDS FOR DISCIPLINE Breach of Duties to Client 1. Negligence in performance of duties Requisites to Requisites to Warrant Suspension or Disbarment: i. Negligence and carelessness which must be gross in character ii. Caused material prejudice to client Note:  Note:  Mere negligence without pecuniary damages justifies only reprimand or censure except when breach of duty to client is a gross violation of obligation to court. 2. 3.

Employment of unlawful means Deceit or misrepresentation Requisites a. Bad faith on the part of the lawyer b. Material damage to client

4.

Representing adverse Interest and revealing client’s secrets - If there is no written consent of

1. NON-PROFESSIONAL MISCONDUCT General Rule: Rule: Lawyer may not be suspended or disbarred for misconduct in his non-professional or private capacity . Exception: Exception: Where such is so GROSS to show him to be morally unfit for office or unworthy of privilege, court may be justified in suspending or removing him from the roll of attorneys.

2. GROSS IMMORALITY- AN ACT OF PERSONAL IMMORALITY ON THE PART OF THE LAWYER IN HIS PRIVATE RELATION WITH OPPOSITE SEX MAY PUT CHARACTER IN DOUBT. BUT TO JUSTIFY SUSPENSION OR DISBARMENT, THE ACT MUST NOT ONLY BE IMMORAL, IT MUST BE GROSSLY IMMORAL. ( ABAIGAR VS. PAZ ) Grossly Immoral Conduct – one so corrupt and false as to constitute criminal act or so unprincipled or disgraceful as to

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21 MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES resolution exonerating the respondent shall be considered as terminating the case unless upon petition of the complainant or other interested party filed with the Supreme Court within 15 days from notice of the Board’s decision.

GRIEVANCE PROCEDURE: DISBARMENT, SUSPENSION,  AND DISCIPLINE DISCIPLINE OF ATTORNEYS (Rule 139-B) 





Proceedings for the disbarment, suspension and discipline of attorneys may be taken: 1. by the Supreme Court motu proprio, or, 2. by the IBP upon the verified complaint of any person The IBP Board of Governors may initiate and prosecute proper charges against erring attorneys including those in government: 1. motu propio or 2. upon referral by the SC or 3. by a Chapter Board of Officers or at the instance of any person. The complaint must be: 1. verified; 2. state clearly and concisely the facts complained of; 3. supported by affidavits of persons having personal knowledge of the facts therein alleged, or by such documents as may substantiate it; 4. six (6) copies shall be filed with with the Secretary of IBP or any of its Chapters.

PROCEDURE FOR DISBARMENT IN THE SUPREME COURT 1.

2.

Rules in the Imposition of Penalties a.

In case of Suspension Division  1 year or less En Banc  exceeds 1 year

b.

In case of Fine Division  P10,000 or less En Banc P10,000 or more

c.

OUTLINE OF DISBARMENT PROCEEDING IN THE IBP

Upon the initiation of the complaint, the Supreme Court may refer the case for investigation to the Solicitor General, or any officer of the Supreme Court, or judge of a lower court; If referred, the investigator shall proceed with the investigation and make a report to the Supreme Court.

In case of both Suspension and Fine  en banc if the suspension exceeds 1 year or the fine

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22

2005 CENTRALIZED B AR OPERATIONS

DEFENSES The purpose and nature of disbarment proceedings make the number of defenses available in civil and criminal actions inapplicable  inapplicable  in disciplinary proceedings. The Statute of Limitations is not a defense in disciplinary proceedings nor does the fact the circumstance that facts set up as ground for disbarment constitute crime, the prosecution for which in criminal action is barred by prescription, preclude the disbarment proceeding. However, the fact that a considerable length of time has lapsed from the date the misconduct took place to date the complaint for disbarment was filed may indicate ulterior motive on the part of complainant or innocence on the part of respondent.

SUSPENSION OR DISBARMENT A lawyer who has been suspended or disbarred cannot practice law without being held liable for contempt of court. The suspended lawyer may be disbarred for violation of the suspension order. Such judgment does not prohibit pro se practice (Geeslin vs. Navarro; 185 SCRA). If the lawyer holds a government office which requires membership in the bar as an indispensable qualification, he may be dismissed from said office (Collantes vs. Renomeron; 200 SCRA).

REINSTATEMENT

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23 MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES Court   a board or other tribunal which decides a litigation

NEW CODE OF JUDICIAL CONDUCT FOR THE PHILIPPINE JUDICIARY

or contest

Judge  a public officer who, by virtue of his office, is clothed with judicial authority

De Jure Judge  one who is exercising the office of a judge as a matter of right; an officer of a court who has been duly and legally appointed



( A.M. No. 03-05-01-SC) (June 1, 2004) supersedes the Canons of Judicial Ethics and the Code of Judicial Conduct to the extent that the provisions or concepts therein are embodied in this Code,  provided, that in case of deficiency or absence of specific provisions in this Code, the Canons of Judicial Ethics and the Code of Judicial Conduct shall be applicable in a suppletory character.

De Facto Judge  an officer who is not fully invested with all the powers and duties conceded to judges, but exercising the office of a judge under some color of right

CANON-

i.

Independence

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24

2005 CENTRALIZED B AR OPERATIONS

unprofessional conduct of which the judge may have become aware. CANON 3: IMPARTIALITY Judges shall perform their judicial duties without favor, bias or prejudice. 

DISQUALIFICATIONS OF JUDGES Grounds for Disqualification and Inhibition of Judges Under the New Code of Judicial Conduct: Judges shall disqualify themselves from participating in any proceedings in which they are unable to

A judge may, in the exercise of his sound discretion disqualify himself, for just and valid reasons other than those mentioned above. [Section 1, Rule 137] This leaves the discretion to the judge to decide for himself questions as to whether he will desist from sitting in case for other just and valid reasons with only his conscience to guide him, unless he cannot discern for himself his inability to meet the test of the cold neutrality required of him, in which event the appellate court will see to it that he disqualifies himself. A decision to disqualify himself is not conclusive and his competency may be determined on application for mandamus to compel him to act. Judge’s decision to continue hearing a case in which he is not legally prohibited from

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25 MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES The prohibition will discourage if not stop judges from making business speculations in some business ventures, the secrets of which he learned by reason of his position as a judge. The judge may be liable for violation of Section 3(k) of RA 3019 – “divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons or releasing such information in advance of its authorized release due.” Violation of the rul e may also lead to “revelation of secrets by an officer” or to “revelation of the secrets of a private individual” punishable by  Articles 229 and 230 of the Revised Penal Code respectively.

gratitude or friendship according to local custom or usage [Section 14, RA 3019].

Void Donations Under the Civil Code Donations given to a judge or to his wife, descendants or ascendants by reason of his office are void [Art. 739, Civil Code]. Ownership does not pass to the donee. Money or property donated is recoverable by the donor, his heirs or creditors.

Loans Prohibited Under the Constitution Under Section 16 Article XI “No loan, guarantee or other form of financial accommodation for any business purpose may be granted directly or indirectly by any

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26

2005 CENTRALIZED B AR OPERATIONS

CANON 1: PROMPT DISPOSITION OF CASES A judge should administer justice impartially and without delay. [Rule 1.02] A judge shall dispose of the court’s business promptly and decide cases within the required periods. [Rule 3.05] CASES: In the Request of Judge Irma Zita Masamayor [A.M. NO. 99-1-16, RTC, June 21 1999] it was held that cognizant of the caseload of judges and mindful of the pressure of their work, the Supreme Court almost always grants requests for extension of time to decide cases. A heavy caseload may excuse a judge’s failure to decide cases within the reglementary period, but not his or her failure to request for an extension of time before the expiration of the period to be

A judge shall be faithful to the law and maintain professional competence. [Rule competence.  [Rule 3.01]

CASE: In the case Exequiel Domingo vs. Judge Luis Reyes [A.M. NO. MTJ-98-1165, June 21, 1999] the Supreme Court held that judges are expected to keep abreast of developments in law and jurisprudence. The SC does not countenance respondent judge’s failure to inform himself of recent jurisprudential rules. His error, while an honest one and committed for the purpose of achieving the ends of justice, must never happen again. Respondent judge was reprimanded for IGNORANCE OF THE LAW. Where a partner accepts public office, he shall withdraw from the firm and his name shall be dropped from

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27 MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES serve as an officer, director, manager, advisor, or employee

1. Any public officer or employee or any private individual,

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28

4.

2005 CENTRALIZED B AR OPERATIONS

Knowingly Rendering an Unjust

Interlocutor y

to violate the law or were in persistent disregard of well-

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29 MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES For liability to attach, the assailed order, decision

CASE: Compulsory membership to the IBP is not violative