Legal Ethics Bar Reviewer

UST LAW PRE-WEEK NOTES 2014 LEGAL AND JUDICIAL ETHICS

A. LEGAL ETHICS 1.

Practice of Law; Privilege

Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training, and experience. (Cayetano v. Monsod, G.R. No. 100113, Sept. 3, 1991) The practice of law is not a natural, property or constitutional right but a mere privilege. It is not a right granted to anyone who demands it but a privilege to be extended or withheld in the exercise of sound judicial discretion. It is a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness. Practice of law; Profession A legal profession is not a business. It is not a money-making trade just like a businessman employing strategy for the purpose of monetary gain. It is a sacred profession imbued with public interest whose primary objective is public service , as it is an essential part in the administration of justice and a profession in pursuit of which pecuniary reward is considered merely incidental. 2.

Qualifications

Any person heretofore duly admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions of the rule, and who is in good and regular standing, is entitled to practice law. (Sec. 1, Rule 138, Revised Rules of Court (RRC) Under Sections 2, 5 and 6 of Rule 138, the applicant must be: 1. 2. 3. 4. 5.

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

Appearance of Non-Lawyers

GR: No. Only those who are licensed to practice law can appear and handle cases in court.

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A: No, because the practice of law is only reserved for those qualified for the same. Eric’s appearance in court on behalf of another is not sanctioned by the rules. A non-lawyer may only be allowed to appear in court if he is representing himself not that of another (Sec. 34, Rule 138, Rules of Court). Law Student Practice Rule ( Rule 138) Q: What is the Student Practice Rule? A: It is the rule authorizing a law student who has successfully completed his 3rd year of the regular four year prescribed law curriculum and is enrolled in recognized law school’s clinical legal education program approved by the Supreme Court, to 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, under the direct supervision and control of a member of the IBP accredited by the law school. (2009 Bar Question) Q: Bong Tupak, a second year law student, was charged in the RTC for Forcible Abduction with Rape. Having knowledge of criminal law ad procedure, he dismissed the counsel de oficio assigned and appeared for himself. HE asserted that there was lack of force. Eventually, the RTC found him guilty of consented abduction and imposed the penalty. Bong Tupak now assails the decision, saying that there was violation of due process because he was allowed to appear for himself and he did not know that consented abduction is a crime. Decide. A: The RTC should have appointed a counsel de oficio to assist the accused even if it was not sought or requested by the accused. (2012 Bar Question, MCQ) 4.

Law student practice Non-lawyers in court can appear for a party in MTC Non-lawyers in administrative tribunal can represent parties in tribunals such as NLRC, DARAB, Cadastral Courts.

The 5 Strike Rule in taking the Bar

The Former 5-Strike Rule was lifted by the Supreme Court en banc in a resolution on September 3, 2013. Thus, to this day, the taking of the bar has no limit. Non Lawyers in Court a.

XPN: a. b. c.

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

Law student practice b. Non-lawyers in court can appear for a party in MTC Note: Section 34, Rule 138 of the Revised Rules of Court expressly allows pro se practice or the right of a non-member of the bar to engage in limited practice of law. (Antiquiera, CPR, p. 9)

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UST LAW PRE-WEEK NOTES 2014 LEGAL AND JUDICIAL ETHICS c.

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

Limits on the Appearance of Non-Lawyers 1.

He should confine his work to non- adversary contentions;

2.

He should not undertake purely legal work, such as the examination or cross- examination of witnesses, or the presentation of evidence; and

3.

His services should not be habitually rendered. He should not charge or collect attorney’s fees. (PAFLU v. Binalbagan Isabela Sugar Co., G.R. No. L-23959, Nov. 29,1971)

Non Lawyers in Administrative Bodies 1. Non-lawyers may be allowed by law to appear, such as union representatives allowed to represent union member in the NLRC, but subject to three limitations: a. should not undertake purely legal work; b. should not render services habitually; and c. Should not charge or collect attorney’s fees. 2. Proceedings appearing:

where

lawyers

prohibited

from

Allowed to practice but subject to restrictions

Approval department required

of head

8. 1. 2.

Mayors Senators members of the House of Representatives, 3. Vice-Governors 4. Vice Mayors 5. members of the Sanggunians Civil Service employees (Catu v. Rellosa, AC 5738, Feb. 9, 2008 [punong barangay]; Abella v. Cruzaba, AC 5088, June 3, 2009 [Register of Deeds employee])

Q: Atty. Fred is a law practitioner and headed a law firm bearing his name and those of his partners. When Atty. Fred was elected Congressman, his client’s needs were handled by the other partners. Later, A, a newly proclaimed congressman-friend, faced an election protest before the HRET, and sought the help of Congressman Fred who immediately directed his law firm to appear for A. B, the protestant, sought the disqualification of Cong. Fred’s law firm from appearing before the HRET because Cong. Fred is prohibited from practicing his profession. Decide. A: No, the prohibition is on Cong. Fred from personally appearing and not to his partners. (2012 Bar Question, MCQ)

4. Small claims proceedings (Secs. 16 & 17, Rule on Small Claims Cases)

Q: Vice Mayor Ron is a well-loved law practitioner because he assists his constituents especially the indigents. Ed, one of his friends, who is employed in as Cashier in the Register of Deeds, sought his assistance because he was charged with Malversation in court. Can Vice Mayor Ron appear as counsel of Ed?

4. Sanctions for practice or appearance without authority

A: No, because Ed is charged with an offense in relation to his office. (2012 Bar Question, MCQ)

3. Proceedings before the Katarungan Pambarangay (Art. 415, Local Government Code)

Lawyers without authority this constitutes malpractice and violation of the lawyer’s oath, for which he may be suspended or disbarred 5.

Persons not lawyers may be punished for contempt of court

Public Officials and the Practice of Law

Prohibited practicing

from

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

7.

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President Department secretaries judges and justices prosecutors Solicitor General and members of the OSG members of Constitutional Commissions Governors

Prohibitions and disqualifications of former government attorneys: (a) Under R.A. 6713 – retired government officials are allowed to practice their professions, but for a period of one year after their retirement, they are not allowed to practice in the office where they had previously been connected. (b) Under the Code of Professional Responsibility - A lawyer may not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service (Rule 6.03; PCGG v. Sandiganbayan, 455 SCRA 526). (c) Under the Judiciary Retirement Act (R.A. 910) – retired members of the judiciary cannot appear as counsel in cases, civil, criminal or administrative, where the government is the adverse party.

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UST LAW PRE-WEEK NOTES 2014 LEGAL AND JUDICIAL ETHICS

A. Lawyers authorized government: 1. 2. 3. 4. 5.

to

represent

the

Members of the Office of the Solicitor General State prosecutors Members of the Office of the Government Corporate Counsel Officers who may be authorized by law. Private lawyers retained by government entities with the approval of the OSG or GOCC and the Commission on Audit (Rey A. Vargas v. Atty. Michael A. Ignes, A.C. No. 8096, July 5, 2010).

B. Lawyer’s Oath: “ I, ______ do solemnly swear that: I will maintain allegiance to the Republic of the Philippines; will support the Constitution and obey the laws as well as the legal order of duly constituted authorities therein; I will do no falsehood nor consent to the doing of the same in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, not 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. “ DUTIES AND RESPONSIBILITIES OF A LAWYER First and Most Important Duty of a Lawyer: Duty to the court. The lawyer is an officer of the court who sets the judicial machinery with the main mission of assisting the court in the administration of justice. His public duties take precedence over his private duties. Q: True or False, the duty of a lawyer to his client is more paramount that his duty to the Court. A: False, a lawyer’s paramount duty is to the Court. This is because he is an officer of the court. (2009 Bar Question) 1. Duties to Society 1. Uphold the Constitution, Obey the laws of the land, and Promote respect for the law and legal processes (Canon 1, CPR. (Canon a. Not engage in unlawful, dishonest, immoral and deceitful conduct. Rule 1.01) a. Not counsel or abet activities aimed at defiance of the law and lessening confidence in the legal system, (Rule 1.02) b. Not encourage any suit or proceeding or delay and any man’s cause. (Rule 1.03)

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c.

Encourage his clients to avoid, and/or settle a controversy if it will admit of a fair settlement. (Rule 1.04)

Deceitful Conduct is an act that has the proclivity for fraudulent and deceptive misrepresentation, artifice or device that is used upon another who is ignorant of the fact, to the prejudice and damage of the party imposed upon. (CPR Annotated, PhilJA) Unlawful Conduct is a transgression of any provision of law, which need not be a penal law. The presence of evil intent on the part of the lawyer is not essential in order to bring his act or omission within the terms of this Rule. Immoral Conduct refers to a conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community. To warrant disciplinary action, the act must not only be merely immoral but GROSSLY IMMORAL. Moral Turpitude Q: Atty. Candido commented in a newspaper that the decision of the decision of the Court of Appeals was influenced by a powerful relative of the prevailing party. The appellate court found him guilty of indirect contempt. Does this involve moral turpitude? Explain. A: Moral Turpitude has been defined as everything which is done contrary to justice, modesty or good morals, an act of baseness, vileness or depravity in the private and social duties which a man owes his fellowmen, or to society in general, contrary to justice, modesty or good morals. (Soriano v. Dizon). Based on this definition, it would appear that the published comment of Atty. Candido does not constitute “Moral Turpitude” although contemptuous. (2010 Bar Question) Canon 2 1.

A lawyer shall make his services available in an efficient and convenient manner a. Shall not reject, except for valid reasons, the cause of the defenseless or oppressed (Rule 2.01). But should not accept more cases than he can handle (Canoy v. Ortiz, 453 SCRA 410). b. In case he cannot accept the case, at least give legal advice to the extent necessary to safeguard his rights. (Rule 2.02) c. Shall not do or permit to be done any act primarily designed to solicit legal business. (Art. 2.03) (Tan Tek Beng v. David, 126 SCRA 289; Linsangan vs. Tolentino (A.C. 6672, Sept. 4, 2009) d. Shall not charge rates lower than those customarily prescribed unless the circumstances so warrant (Rule 2.04)

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UST LAW PRE-WEEK NOTES 2014 LEGAL AND JUDICIAL ETHICS Canon 3 In making known his legal services, use only true, honest, fair, dignified and objective information 1. Not use any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement of claim. (Rule 3.01) (Khan v. Simbillo, 409 SCRA 209) 2. Continued use of name of deceased partner permitted provided firm indicates that he is deceased. (Rule 3.02) (In re Sycip, Salazar, 92 SCRA 1) 3. When partner joins public office, his name should be dropped, unless he is allowed to practice law concurrently (Rule 3.03) 4. Not pay members of media in return for publicity (Rule 3.04) 5.

A lawyer shall participate in the development of the legal system by initiating or supporting efforts in law reform and in the improvement of the administration of justice (Canon 4)

6.

A lawyer shall keep abreast of legal developments; participate in continuing legal education programs, support efforts to achieve high standards in law schools as well as in the practical training of students and assist in disseminating the law and jurisprudence. (Dulalia v. Cruz, AC 6854, Aug. 20, 2007)

Examples of Advertisements considered as deceptive 1. 2.

3. 4.

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

Barratry is an offense of frequently exciting and stirring up quarrels and suits, either at law or otherwise; lawyer’s act of fomenting suits among individuals and offering his legal services to one of them. Barratry is not a crime under the Philippine laws. However, it is proscribed by the rules of legal ethics. Ambulance chasing is an act of chasing victims of accidents for the purpose of talking to the said victims (or relatives) and offering his legal services for the filing of a case against the person(s) who caused the accident(s). It has spawned a number of recognized evils such as:

2. 3. 4.

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Q: Atty. Melissa witnessed the car accident that resulted in injury to Manny, a friend of hers. While visiting him at the hospital, she advised him about what action he needed to take regarding the accident. Is Atty. Melissa subject to disciplinary action if she eventually handles the case for him? A: No. It is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases where ties of blood, relationship or trust make it his duty to do so (Canon 28, CPE). In the case at hand, since Atty. Melissa is a friend of the injured person, she may not be admonished for extending some legal advice to a friend in need. (2011 Bar Question) Q: Atty. Nelson recently passed the Bar and wanted to specialize I marine labor law. He gave out calling cards with his name, address and telephone number in front, and the following words at the back: “We provide legal assistance to overseas seamen who are repatriated due to illness, injury or death. We also offer FINANCIAL ASSISTANCE”. Does this constitute ethical misconduct? A: Yes, because the offer of financial assistance is an undignified way of luring clients. (2012 Bar Question, MCQ)

Duties to the Legal Profession The Integrated Bar of the Philippines Membership in the IBP is Mandatory, even for lawyers abroad. Integration of the Bar is the official unification of the entire lawyer population ordained by the Supreme Court on January 16, 1973.

Barratry v. Ambulance Chasing

1.

costs and expenses and by settlement made for quick returns of fees and against just rights of the injured persons (Hightower v. Detroit Edison Co. 247 NW 97, 1993)

Fomenting of litigation with resulting burdens on the courts and the public; Subordination of perjury; Mulcting of innocent persons by judgments, upon manufactured causes of action; and Defrauding of injured persons having proper causes of action but ignorant of legal rights and court procedures by means of contracts which retain exorbitant percentages of recovery and illegal charges for court

Integration is constitutional (In re Integration, 49 SCRA 22) Membership and Dues Q: Atty. Gelly passed the Bar in 1975. After taking his oath, he did not enlist in any IBP chapter because he went to the USA topursue a Master’s Degree. Eventually, he passed the state bar and specialized in Immigration Law. In 2005, he returned to the Philippines and was hired by a law firm. He wishes to pay his IBP dues for the current year but the IBP is charging him rom 1975 up to the present and threatening him with expulsion if he does not comply. Is the IBP correct? A: Atty. Gelly should pay the dues from 1975 to the present since membership in the IBP is compulsory. (2012 Bar Question)

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UST LAW PRE-WEEK NOTES 2014 LEGAL AND JUDICIAL ETHICS

Effect of Non-Payment of Dues

Canon 8

Default in the payment of annual dues for six months shall warrant suspension of membership in the Integrated Bar, and default in such payment for one year shall be a ground for the removal of the name of the delinquent member from the Roll of Attorneys (Sec. 10, Rule 139-A, RRC) subject to the requirement of due process

Q: Atty. Y, in his Motion for Reconsideration of the Decision rendered by the National Labor Relations Commission (NLRC), alleged that there was connivance of the NLRC Commissioners with Atty. X for monetary considerations in arriving at the questioned Decision. He insulted the Commissioners for their ineptness in appreciating the facts as borne by the evidence presented. Atty. X files an administrative complaint against Atty. Y for using abusive language. Atty. Y posits that as lawyer for the down-trodden laborers, he is entitled to express his righteous anger against the Commissioners for having cheated them; that his allegations in the Motion for Reconsideration are absolutely privileged; and that proscription against the use of abusive language does not cover pleadings filed with the NLRC, as it is not a court, nor are any of its Commissioners Justices or Judges. Is Atty. Y administratively liable under the Code of Professional Responsibility? Explain.

The IBP and its Processes Principle of Rotation Pursuant to the principle of rotation, the governorship of a region shall rotate once in as many terms as the number of chapters there are in the region, to give every chapter a chance to represent the region in the Board of Governors. Thus, in a region composed of 5 chapters, each chapter is entitled to the governorship once in every 5 terms, or once every ten (10) years, since a term is two (2) years (Atty. Magsino et al. v. Atty. Vinluan, A.M. No. 09-5-2-SC, December 14, 2010) Prohibited Practice Q: In the election of national officers of the IBP, the Supreme Court received reports of electioneering and extravagance that characterized the campaign conducted by the 3 candidates (Paculdo, Nisce and Mrs. Drilon) for President of the IBP. It is alleged that they used government planes, give free accommodations to voters to expensive hotels and there has been intervention of public officials to influence the voting. Is there a violation of the IBP by-laws? Is there sufficient ground for the Supreme Court to suspend the oath taking of the officials? A: Yes. The candidates for the national positions in the IBP conducted their campaign preparatory to the election on June 3, 1989 in violation of Section 14 of the IBP by-laws and the Rules of Court, that the IBP shall be strictly nonpolitical. Also the ethics of the legal profession imposed on all lawyers has been violated corollary to their obligation to obey and uphold the constitution and the laws, the duty to promote respect for law and legal processes and to abstain activities aimed at the defiance of the law or at lessening confidence in the legal system. (In Re: IBP Elections, B.M. 491, Oct. 6, 1989 IBP Election Q: Atty. Aga was appointed as treasurer by the IBP President with the approval of the Board of Governors for a term coterminous with that of the President. A year thereafter, Atty. Aga ran as barangay chairman of their place, and took a leave of absence of two week to campaign. May Atty. Aga re-assume as treasurer after his leave of absence?

A: Atty. Y clearly violated Canon 8 of the CPR and is administratively liable. A lawyer shall not in his professional dealings, use language which is abusive, offensive or otherwise improper. A lawyer shall abstain from scandalous, offensive or menacing language or behaviour before the courts. In the case of Johnny Ng v. Atty. Banjamin Alar, which involves the same facts, the SC held that the argument that the NLRC is not a court is unavailing. The lawyer remains a member of the Bar, an oath-bound servant of the law whose first duty is not to his client but to the administration of justice and whose conduct ought to be and must be scrupulously observant of the law and ethics. (2010 Bar Question) Canon 9 Q: Atty. Monica Santos-Cruz registered in the firm name “Santos-Cruz Law Office” with the DTI as a single proprietorship. In her stationery, she printed the name o her husband and a friend who were both non-lawyers as her senior partners in light of their investments in the firm. She allowed her husband to give out calling cards bearing his name as senior partner of the firm and to appear in courts to move for postponements. Dis Atty. Santos-Cruz violate the Code of Professional Responsibility? Why? A: Yes, she did. In the case of Cambaliza v. Tenorio (2004), which involves the same facts, the Supreme Court held that a lawyer who allows a non-member of the bar to misrepresent himself as a lawyerand to practice law is guilty of violating Canon 9 and Rule 9.01 of the Code of Professional Responsibility which provides as follows: “Canon 9. A lawyer shall not directly or indirectly assist in the unauthorized practice of law” and “Rule 9.01: A Lawyer shall not delegate to any unauthorized person the performance of any task which by law may only be performed by a member of the bar in good standing”. (2010 Bar Question)

A: No, because he is deemed resigned upon the filing of his certificate of candidacy. (2012 Bar Question, MCQ)

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UST LAW PRE-WEEK NOTES 2014 LEGAL AND JUDICIAL ETHICS 3.

Duty to the Courts

Canon 13 Q: On a Saturday, Atty. Paterno filed a petition for Writ of Amparo with the CA. Impelled by the urgency of the issuance of the writ, Atty. Paterno persuaded his friend, CA Justice Johnny Dela Cruz, to issue the Writ of Amparo and the notice of hearing without the signature of the two other Justices members of the CA division. Are Atty. Paterno and Justice Dela Cruz guilty of unethical conduct? Explain. A: Yes. Atty. Paterno violated Canon 13 of the CPR which provides that a lawyer shall rely on the merits of his cause and refrain from any impropriety which tends to influence or gives the appearance of influencing the court.” Atty. Paterno has relied on his friendship with the Justice to obtain a Writ of Amparo without a hearing. He thus makes it appear that he can influence the court. Justice Dela Cruz violated sec. 3, canon 4 of the Code of Judicial Conduct for the Philippine Judiciary, which provides that “judges shall, in their personal relations with individual members of the legal profession who practice regularly in their courts, avoid situations which might reasonable give rise to the suspicion or appearance of favoritism or partiality.” (2009 Bar Question) Q: Rico, an amiable, sociable lawyer, owns a share in Marina Golf Club, easily one of the more posh golf courses. He relishes hosting parties for government officials and members of the bench. One day, he had a chance meeting with a judge in the Intramuros golf course. The two readily got along well and had since been regularly playing golf together at the Marina Golf Club. If Atty. Rico does not discuss cases with members of the bench during parties and golf games, is he violating the Code of Professional Responsibility? Explain. How about the members of the bench who grace the parties of Rico, are they violating the Code of Judicial Conduct? Explain. A: Yes. A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with judges. Moreover, he should refrain from any impropriety which gives the appearance of influencing the court. In regularly playing golf with the judges, Atty. Rico will certainly raise the suspicion that they discuss cases during the game, although they actually do not. However, if Rico is known to be a non-practicing lawyer, there is not much of an ethical problem. Members of the bench who grace the parties of Atty. Rico will be guilty of violating Canon 4 of the New Code of Judicial Conduct which provides that judges shall, in their personal relations with individual members of the legal profession who practice regularly in their court, avoid situations which might reasonably give rise to the suspicion of or appearance of partiality. It has been held that if a judge is seen eating or drinking in public places with a lawyer who has a case pending in his sala, public suspicion may be aroused, thus tending to erode the trust of litigants in the impartiality of the judge. (2010 Bar Question) Q: Members of the faculty of the UP College of Law published a statement on the allegations of plagiarism and misrepresentation relative to the Court’s decision in Vinuya v. Executive Secretary. The authors directly

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accused the Court of perpetrating extraordinary injustice by dismissing the petition of the comfort women said case. The insult to the members of the Court was aggravated by imputations of deliberately delaying the resolution of the said case, its dismissal on the basis of “polluted sources,” the Court’s alleged indifference to the cause of petitioners, as well as the supposed alarming lack of concern of the members of the Court for even the most basic values of decency and respect. A: While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic society, there is also a general consensus that healthy criticism only goes so far. The court must “insist on being permitted to proceed to the disposition of its business in an orderly manner, free from outside interference obstructive of its functions and tending to embarrass the administration of justice.” The Court could hardly perceive any reasonable purpose for the faculty’s less than objective comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the Court’s honesty, integrity and competence in addressing the motion for its reconsideration. As if the case on the comfort women’s claims is not controversial enough, the UP Law Faculty would fan the flames and invite resentment against a resolution that would not reverse the said decision. This runs contrary to their obligation as law professors and officers of the Court to be the first to uphold the dignity and authority of this Court, to which they owe fidelity according to the oath they have taken as attorneys, and not to promote distrust in the administration of justice. Their actions likewise constitute violations of Canons 10, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility. (Re: Letter of the UP Law Faculty entitled “Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court.”(A.M. No. 10-10-4-SC, Oct. 19, 2010) 4.

Duty to Clients

Counsel de Oficio 1. 2.

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

Guidelines in appointing a Counsel de Oficio 1. 2. 3.

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

Amicus Curiae – friend of the court; appointed to advise the court in complex cases. Amicus Curiae par Eexcellance – the entire bar pro bono – legal service without expecting payment Lawyer’s Right to decline employment GR: A lawyer is not obliged to act as legal counsel for any person who may wish to become his client. He has the right

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UST LAW PRE-WEEK NOTES 2014 LEGAL AND JUDICIAL ETHICS

1.

to decline employment. XPN: 1. 2.

3.

A lawyer shall not refuse his services to the needy. (Canon 14) He shall not decline to represent a person solely on account of the latter’s race, sex, creed or status in life or because of his own opinion regarding the guilt of said person (Rule 14.01); (1990, 1993, 2000, 2002, 2006 Bar Questions) He shall not decline, except for serious and efficient cause like a. If he is not in a position to carryout effectively or competently; and b. If he labors under a conflict of interest between him and the prospective client. (Rule 14.03)

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

Between the attorney’s interest and that of a client; or between a private client’s interests and that of the government or any of its instrumentalities.

Q: What are the three (3) tests to determine conflict of interest for practicing lawyers? Explain each briefly. A: (1) When in representation of one client, a lawyer is required to fight for an issue or claim, but is also dutybound to oppose it for another client; (2) When the acceptance of the new retainer will require an attorney to perform an act that may injuriously affect the first client or when called upon in a new relation o use against the firs client any knowledge acquired through their professional connection; (3)When the acceptance of a new relation would prevent the full discharge of an attorney’s duty to give undivided fidelity and loyalty to the client or would invite suspicion or unfaithfulness or double-dealing in the performance of that duty. (2009 Bar Question) A lawyer shall hold in trust all moneys and properties of his client that may come into his possession. (Canon 16) a.

Privileged Client Identity Client identity is privileged where a strong probability exists that revealing the client’s name would implicate that client in the very activity for which he sought the lawyer’s advice. (Regala v. Sandiganbayan, G.R. No. 105938, Sept. 20, 1996) b. Q: After representing Lenie in an important lawsuit from 1992 to 1995, Atty. Jennifer lost touch of her client. Ten years later in 2005, Evelyn asked Atty. Jennifer to represent her in an action against Lenie. Such action involved certain facts, some confidential, to which Atty. Jennifer was privy because she handled Lenie's old case. Can Atty. Jennifer act as counsel for Evelyn? (2011 Bar Question) A: No. A lawyer shall preserve the confidences or secrets of his client even after the attorney-client relation is terminated. He shall not reveal the confidence or secrets of his client except upon the instances provided for by the rules. (Rule 21.01, Canon 21, Code of Professional Responsibility) Conflict of Interest

XPN: Representation of conflicting interest may be allowed where the parties consent to the representation after full disclosure of facts. (Nakpil v. Valdez, A.C. No. 2040, Mar. 4, 1998)

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A lawyer will not be ordered to return money given to him for “facilitation fee”. (Arellano University v. Mijares, AC 380, Nov. 30. 2009) Lawyer borrowing money from client

GR: An attorney cannot represent diverse interests.

XPN to XPN: Where the conflict is:

c.

A lawyer shall account for all money or property collected or received for or received from the client (Rule 16.01) (Yuhico v. Guttierez, AC8391, Nov. 23, 2010 ; Tan v. Balon, AC 6483, Aug. 31, 2007)). a. Money given for a purpose must be used for such purpose; otherwise, returned to client immediately. ii. Failure to do so will raise presumption that lawyer misappropriated it. (De Chavez-Blanco v. Lumasag, Jr., AC 5195, Apr. 10, 2009) A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him. (Rule 16.02) A lawyer shall deliver the funds and property of client upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. (Rule 16.03)  A Lawyer may not apply client’s funds to his fees if client is still objecting to the amount thereof. (Genato v. Adaza, 328 SCRA 694; Lemoine v. Balon, 414 SCRA511).

Not allowed unless the client’s interests are fully protected by the nature of the case or by independent advice.

Lawyer lending money to client Not allowed except when in the interest of justice, he has to advance necessary expenses in a legal matter he is

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UST LAW PRE-WEEK NOTES 2014 LEGAL AND JUDICIAL ETHICS handling for the client. (Rule 16.04, Code of Professional Responsibiility).

is no reimbursement. Thus, he is investing in the outcome of the case. (2010 Bar Question)

Attorney’s Fees

Attorney’s Liens

Q: Atty. Francisco’s retainer agreement with RXU said that his attorney's fees in its case against CRP “shall be 15% of the amounts collected.” Atty. Francisco asked the trial court to issue a temporary restraining order against CRP but this was denied, prompting him to file a petition for certiorari with the Court of Appeals to question the order of denial. At this point, RXU terminated Atty. Francisco’s services. When the parties later settled their dispute amicably, CRP paid RXU P100 million. Because of this, Atty. Francisco came around and claimed a 15% share in the amount. What should be his attorney’s fees? A: A reasonable amount that the court shall fix upon proof of quantum meruit whc means “as much as he deserves”. (2011 Bar Question) Contingency Fee Contracts Q: For services to be rendered by Atty. Delmonico as counsel for Wag Yu in a case involving 5,000 square meters (sq.m.) of land, the two agreed on a success fee of P50,000 plus 500 sq.m. of the land. The trial court rendered judgment in favor of Wag Yu which became final and executory. After receiving P50,000, Atty. Delmonico demanded the transfer to him of the promised 500 sq.m. Instead of complying, Wag Yu filed an administrative complaint charging Atty. Delmonico with violation of the Code of Professional Responsibility and Article 1491(5) of the Civil Code for demanding the delivery of a portion of the land subject of litigation. Is Atty. Delmonico liable under the Code of Professional Responsibility and the Civil Code? Explain. A: Atty. Delmonico is not guilty of violating the CPR and the Civil Code. He and his client agreed on a success fee of 50,000 plus 500 sq. of the land involved in the case he was handling. This is a contingent fee contract which is allowed under Canon 20 of the CPR and Canon 13 of the CPE. A contingent fee agreement does not violate Art. 1491 of the Civil Code because the transfer or assignment of the property in litigation takes effect only after the finality of a favorable judgment. (2010 Bar Question) Champertous Contracts Q: Farida engaged the services of Atty. Garudo to represent her in a complaint for damages. The two agreed that all expenses incurred in connection with the case would first be shouldered by Atty. Garudo and he would be paid for his legal services and reimbursed for all expenses which he had advanced out of whatever Farida may receive upon the termination of the case. What kind of contract is this?

Attorney’s Retaining Lien A retaining lien is the right of an attorney to retain the funds, documents and papers of his client who have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof. Attorney’s Charging Lien A charging lien is the right of a lawyer to the same extent upon all judgments for the payment of money, and executions issued in pursuance of such judgments which he has secured in a litigation of his client, from and after the time when he shall have caused a statement of his claim of such lien to be entered upon the records of the court rendering such judgment, or issuing such execution, and shall have caused written notice thereof to be delivered to his client and to the adverse party; and he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his fees and disbursements. (Sec. 37, Rule 138, Revised Rules of Court) Q: True or False: A charging lien, as distinguished from a retaining lien, is an active lien which can be enforced by execution. A: TRUE. It is active because it requires the lawyer to charge the judgment and its execution for the payment of his fees. (2009 Bar Question) Withdrawal of services a.

A lawyer may withdraw his services only for good cause and upon notice appropriate in the circumstances (Canon 22).

Grounds for withdrawal: (1) client pursues am illegal or immoral course of (2) conduct; (3) client insists that lawyer violate canons and rules; (4) inability to work with co-counsel to detriment of client; (5) mental or physical condition of lawyer makes it (6) difficult for him to continue; (1) client deliberately fails to pay attorney’s fees; (2) election or appointment to public office; (3) other similar cases (Rule 22.01)

A: This appears to be a Champertous Contract, which is invalid. Atty. Garudo agreed to shoulder all expenses in connection with the case and Farida will reimburse him only out of whatever Farida may receive upon termination of the case. In other words, Atty. Garudo will be reimbursed only if he will be successful in winning the case. If he is not, there

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UST LAW PRE-WEEK NOTES 2014 LEGAL AND JUDICIAL ETHICS

C.

SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS

Rationale: Practice of law is in the nature of a privilege. Hence, the same may be suspended or removed from the lawyer for reasons provided in the rules, law and jurisprudence.  

Sui Generis Does not prescribe

The following are specific grounds for suspension or disbarment of a lawyer: a. b. c. d.

Deceit; Malpractice; Grossly immoral conduct Conviction of a crime involving moral turpitude; e. Violation of oath of office; f. Willful disobedience of any lawful order of a superior court g. Corrupt or willful appearance as an attorney for a party to a case without authority to do so. (Sec. 27, Rule 138, RRC) h. Non-payment of IBP membership dues (Santos, Jr. v. Atty. Llas, Adm. Case No. 4749, January 20, 2000) HOWEVER, The statutory enumeration is not to be taken as a limitation on the general power of SC to suspend or disbar a lawyer. (In Re: Puno, A.C. No. 389, Feb. 28, 1967) HENCE, the grounds enumerated are NOT exclusive. Proceedings in Disbarment: (1) initiated by the Supreme court motu propio or by the IBP, or upon verified complaint by any person filed with the Supreme Court or an IBP Chapter (2) if complaint prima facie meritorious, referred to the IBP, or the Solicitor General, any officer of the Court or a judge of a lower court (3) IBP Board of Governors assigns complaint to Commission on Bar Discipline (CBD). (4) CBD will assign complaint to a Commissioner or group Commissioners. (5) If complaint found meritorious, Commissioner(s) will require respondent to file an answer. (6) Commissioner will conduct hearing in which respondent is accorded due process. (7) After hearing, Commissioner(s) will submit Report and Recommendation to IBP Board of Governors. (8) Board of Governors will render decision, either exonerating the respondent and dismissing the case, or imposing a sanction less than suspension, or recommending suspension or disbarment to the Supreme Court. Exoneration may be appealed by the complainant to the Supreme Court. Sanction of less than suspension or disbarment may be appealed by the respondent to the Supreme

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Court. Either one may file a motion for reconsideration with the IBP Board before appealing. (9) Supreme Court renders decision, by division if penalty is fine of P10,000 less and/or suspension for one year or less, and by the court en banc, if penalty is fine of more than P10,000.00 and/or suspension for more than one year, or disbarment. Discipline for Practice in Foreign Jurisdiction: (1) They may likewise be disciplined in the Philippines if their misconduct in the foreign jurisdiction also constitutes ground for discipline here. (2) But they are entitled to due process here, and the decision of the authorities abroad shall only be considered as prima facie evidence of misconduct. Q: Cliff and Greta were law school sweethearts. Cliff became a lawyer, but Greta dropped out. One day, Cliff asked Greta to sign a marriage contract. The following day, Cliff showed Greta the document already signed by an alleged solemnizing officer and two witnesses. Cliff then told Greta that they were already married and Greta consented to go on a honeymoon. Thereafter, the couple cohabited and begot a child. Two years later, Cliff left Greta and married a Venezuelan beauty. Incensed, Greta filed a disbarment complaint against Cliff. Will the case prosper? Explain. A: The disbarment case will prosper. In the case of Cabrera v. Agustin,a lawyer who deceived a woman to believe that they were already married after they had signed an application for marriage license, and afterward tok advantage of her belief to saisfy his lust, until she bore him a child, was considered by the Supreme Court to e lacking in integrity and good morals to remain a member of the Bar. (2009 Bar Question) Q: Atty. Hyde, a bachelor, practices law in the Philippines. On long weekends, he dates beautiful actresses in Hong Kong. Kristine, a neighbor in the Philippines, filed with the Supreme Court an administrative complaint against the lawyer because of sex videos uploaded through the internet showing Atty. Hyde’s sordid dalliance with the actresses in Hong Kong.In his answer, Atty. Hyde (1) questions the legal personality and interest of Kristine to institute the complaint and (2) insists that he is a bachelor and the sex videos relate to his private life which is outside public scrutiny and have nothing to do with his law practice.Rule on the validity of Atty. Hyde’s defenses. A: The legal personality and interest of Kristine to initiate the complaint for disbarment is immaterial. A disbarment proceeding is Sui Generis, neither of civil or criminal character. Its sole purpose is to determine whether or not a lawyer is still deserving to be a member of the bar. In a real sense, Kristine is not a plaintiff, hence, interest on her part is not required.

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UST LAW PRE-WEEK NOTES 2014 LEGAL AND JUDICIAL ETHICS Atty. Hyde’s second defense is untenable. His duty not to engage in unlawful, dishonest, immoral and deceitful conduct, as well as his duty not to engage in scandalous conduct to the discredit of the legal profession, is applicable to his private as well as professional life. (2009 Bar Question)

4.

5. Q: Is the defense of Atty. R in a disbarment complaint for immorality filed by his paramour P that P is in pari delicto material or a ground for exoneration? Explain. A: The defense of in pari delicto is immaterial in an administrative case which is sui generis. The administrative case is about the lawyer’s conduct, not the woman’s. (2010 Bar Question) Affidavit of Desistance: Effects Q: Arabella filed a complaint for disbarment against her estranged husband Atty. P on the ground of immorality and use of illegal drugs. After Arabella presented evidence and rested her case before the Investigating Commissioner of the IBP Committee on Bar Discipline, she filed an Affidavit of Desistance and motion to dismiss the complaint, she and her husband having reconciled for the sake of their children. You are the Investigating Commissioner of the IBP. Bearing in mind that the family is a social institution which the State is duty-bound to preserve, what will be your action on Arabella’s motion to dismiss the complaint? A: I would still deny the motion to dismiss. The general rule is that no investigation shall be interrupted or terminated by reason of desistance, settlement, compromise, restitution, withdrawal of charges or failure of complainant to prosecute the same unless the SC motu proprio or upon recommendation of the IBP Board determines that there is no compelling reason to continue with the proceedings. An affidavit of desistance will have no effect on it, being a sui generis proceeding. (2010 Bar Question) D. READMISSION TO THE BAR Reinstatement and its Requirements Reinstatement is the restoration in disbarment proceedings a disbarred lawyer the privilege to practice law. The applicant must, satisfy the Court that he is a person of good moral character – a fit and proper person to practice law. Suspension 1.

2.

3.

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After a finding that the respondent lawyer must be suspended from the practice of law, the Court shall render a decision imposing the penalty. Unless the Court explicitly states that decision is immediately executory upon receipt thereof, the respondent has 15 days within which to file a motion for reconsideration thereof. Denial of the motion for reconsideration shall render the decision final and executory. Upon expiration of the period of suspension, the respondent shall file a Sworn Statement with the Court through the Office of the Bar Confidant stating therein that he or she has desisted from the

6.

practice of law and has not appeared in any court during the period of his or her suspension. Copies of the sworn statement shall be furnished the Local Chapter of the IBP and to the Executive Judge of the courts where he or she has pending cases and/or has appeared as counsel. The Sworn Statement shall be considered as proof of respondent’s compliance with the order of suspension. Any finding or report contrary to the statements made by the lawyer under oath shall be ground for imposition of a more severe punishment, or disbarment, as may be warranted. (Maniago vs. Atty. De Dios, A.C. No. 78472, March 30, 2010)

Lifting of Suspension The lifting of a lawyer’s suspension is not automatic upon the end of the period stated in the Court’s decision, and an order from the Court lifting the suspension at the end of the period is necessary in order to enable [him] to resume the practice of his profession. (J.K. Mercado and Sons Agricultural Enterprises, Inc. et al. v. Atty. de Vera, et al. and Atty. de Vera v. Atty. Encanto, et al.)

Disbarment Lawyers who have been disbarred: The Supreme Court may reinstate a disbarred lawyer upon proof that he has regained his good moral character and can again be entrusted with the privileges of a lawyer.

Q: X filed proceedings for disbarment against his lawyer, Atty. C, following the latter’s conviction for estafa for misappropriating funds belonging to his client (X). While the proceedings for disbarment was pending, the President granted absolute pardon in favor of Atty. C. Atty. C, then, moved for the dismissal of the disbarment case. Should the motion be granted? A: An absolute pardon by the President is one that operates to wipe out the conviction as well as the offense itself. The grant thereof to a lawyer is a bar to a proceeding for disbarment against him, if such proceeding is based solely on the fact of such conviction. (In re: Parcasio, A.C. No. 100, Feb. 18, 1976) But where the proceeding to disbar is founded on the professional misconduct involved in the transaction which culminated in his conviction, the effect of the pardon is only to relieve him of the penal consequences of his act and does not operate as a bar to the disbarment proceeding, inasmuch as the criminal acts may nevertheless constitute proof that the attorney does not possess good moral character. (In re: Lontok, 43 Phil. 293, Apr. 7, 1922)

Resumption of the Practice of Law

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UST LAW PRE-WEEK NOTES 2014 LEGAL AND JUDICIAL ETHICS

Q: After passing the Philippine Bar in 1986, Atty. Richards practiced law until 1996 when he migrated to Australia where he subsequently became an Australian citizen in 2000. As he kept abreast of legal developments, petitioner learned about the Citizenship Retention and ReAcquisition Act of 2003 (Republic Act No. 9225), pursuant to which he reacquired his Philippine citizenship in 2006. He took his oath of allegiance as a Filipino citizen at the Philippine embassy in Canberra, Australia. Jaded by the laid back life in the outback, he returned to the Philippines in December 2008. After the holidays, he established his own law office and resumed his practice of law. Months later, a concerned woman who had secured copies of Atty. Richards’ naturalization papers with consular authentication, filed with the Supreme Court an anonymous complaint against him for illegal practice of law. May the Supreme Court act upon the complaint filed by an anonymous person? Why or why not? Is respondent entitled to resume the practice of law? Explain.

MCLE for a newly admitted member of the bar: Starts on the first day of the month of his admission. (Sec. 5, last par. Bar Matter No. 850) Q: Atty. Galing is a Bar topnotcher. He has been teaching major subjects in a law school for eight (8) years and has mastered the subjects he is handling. Is he exempt from the MCLE requirement? A: No, eight (8) years experience is not enough. (2012 Bar Question, MCQ) Q: Atty. Rey has been a professor in the Legal Management Department of Y University for thirty (30) years. He teaches Constitution,Obligation and Contracts, Insurance, Introduction to Law. Is he exempted from the MCLE requirement? A: No, because he is not teaching in the College of Law. (2012 Bar Question, MCQ)

A: Yes, the SC may act upon the complaint filed by an anonymous complainant, because the basis of the complaint consists of documents with consular authentications which can be verified being public records. There is no need to identify the complainant when the evidence is documented and verifiable. Besides, the SC or the IBP may initiate disbarment proceedings motu proprio.

Consequences of Noncompliance

B.

Q: In order to comply with the MCLE requirements, Atty. Ausente enrolled in a seminar given by an MCLE provider. Whenever he has court or other professional commitments, he would send his messenger or a member of his legal staff to register his attendance at the MCLE sessions so he could be credited with the required qualifying attendance. He would also ask them to secure the printed handouts and the lecturers’ CDs, all of which he studied in his free time. Atty. Ausente should be _________.

Yes, as long as he observes the procedure laid down in Petition for Leave to Resume Practice of Law of Benjamin M. Dacanay, to wit; A. Updating and payment in full of the annual membership dues in the IBP; B. Payment of professional tax C. Completion of atleast 36 credit hours of mandatory continuing legal education and; D. Pretaking of the lawyer’s oath. (2010 Bar Question)

E. MANDATORY CONTINUING LEGAL EDUCATION

A member who fails to comply with the requirements after the 60-day period shall be listed as delinquent member by the IBP Board of Governors upon recommendation of the Committee on MCLE.

A: Sanctioned because he circumvented or evaded full compliance with the MCLE requirements. (2013 Bar Question)  Requirements of completion of MCLE Members of the IBP, unless exempted under Rule 7, shall complete every 3 years at least 36 hours of continuing legal education activities. The 36 hours shall be divided as follows: 1. 6 hours – legal ethics 2. 4 hours – trial and pretrial skills 3. 5 hours – alternative dispute resolution 4. 9 hours – updates on substantive and procedural laws and jurisprudence 5. 4 hours – legal writing and oral advocacy 6. 2 hours – international law and international conventions 7. Remaining 6 hours – such other subjects as may be prescribed by the Committee on MCLE

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Exemptions: 1. President and Vice-President, Secretaries and Undersecretaries of Executive Departments 2. Senators and Members of the House of Representatives 3. Chief Justice and Associate Justices of the Supreme Court, incumbent and retired members of the judiciary, incumbent members of the Judicial and Bar Council, incumbent court lawyers covered by the Philippine Judicial Academy 4. Chief State Counsel, Chief State Prosecutor, and Assistant Secretaries of the Department of Justice 5. Solicitor General and Assistant Solicitor General 6. Government Corporate Counsel, Deputy an Assistant Government Corporate Counsel

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UST LAW PRE-WEEK NOTES 2014 LEGAL AND JUDICIAL ETHICS 7. 8.

9. 10.

11.

12. 13. 14. 15.

Chairmen and Members of Constitutional Commissions The Ombudsman, over-all Deputy Ombudsman, Deputy Ombudsman and Special Prosecutor of the Office of the Ombudsman Heads of government agencies exercising quasi-judicial functions Incumbent deans, bar reviewers and professors of law who have teaching experience for a lest ten years in accredited law schools The Chancellor, Vice-Chancellor and members of the Corps of Professors and Professorial Lecturers of the Philippine Judicial Academy Governors and mayors Those who are not in law practice, private or public Those who have retired from law practice approved by the IBP Board of Governors Good cause

F. LAW ON NOTARIAL PRACTICE

Qualifications: 1. Citizen of the Philippines 2. Over 21 years of age 3. Resident of the Philippines for at least 1 year 4. Maintains a regular place of work In the city or province where the commission is to be issued, 5. Member of the Philippine bar in good standing 6. Has not been convicted in the first instance of a crime involving moral turpitude. Term of office: two (2) years, commencing from the first day of January of the year in which the commission was issued. Powers : 1. 2. 3. 4. 5. 6. 7. 8.

Acknowledgments Oaths and affirmations Jurats Signature witnessing Copy certifications Any other act authorized by the Rules Witnessing signing by thumbmark Signing on behalf of disabled person.

Limitations: 1. A notary shall not perform a notarial act if the person involved as signatory of the instrument: (a) is not in the notary’s presence personally at the time of notarization, (Heirs of Villanueva v. Beradio, AC 6270, Jasn 23, 2007) (b) is not personally known to the notary or identified through competent document of identity. (Gonzales v. Padiernos, AC 6713, Dec. 8, 2008)

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2.

A notary is disqualified from performing a notarial act if he: (a) is a party to the document or instrument to be notarized; (b) will receive as a direct or indirect result any advantage, right, title, interest, cash, property or other consideration; (c) is a spouse, common law partner, ancestor, descendant or relative by affinity or consanguinity of the principal within the fourth civil degree 3. A Notary public shall not perform a notarial act if (a) he knows or has good reason to believe that the transaction is unlawful or immoral, (b) the signatory shows a demeanor which engenders reasonable doubt as to the consequence of the transaction, (c) The signatory is not acting of his own free will. 4. A Notary Public shall not (a) execute a certificate containing information known or believed to be false, (b) affix an official signature or seal on a notarial certificate that is incomplete. Notarial Register – a permanently bound book containing a chronological record of notarial acts, with the following particulars: 1. Entry number 2. date and time of act 3. type of notarial act 4. type and description of instrument 5. name and address of each principal 6. name or address of each witness 7. fee charged 8. address where notarization was performed if not in regular place of work 9. any other circumstance. Jurisdiction of Notary Public and place of notarization: 1. Jurisdiction – territorial jurisdiction of the commissioning court. (TanTiong Bio v. Gonzales, AC 6634, Aug. 23, 2007) 2. Place of notarization – regular place of work, except: i. public office, convention halls, and similar places where oaths of office may be administered, ii. public function areas in hotels and similar places for the signing of documents or instruments requiring notarization, iii. hospitals and other medical institutions where a party to an instrument is confined for treatment., iv. any place where a party to an instrument is under detention.

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UST LAW PRE-WEEK NOTES 2014 LEGAL AND JUDICIAL ETHICS

Revocation of Commission – Executive judge may revoke commission: 1. For any ground for which an application for a commission may be denied; 2. Where the notary public – i. fails to keep a notarial register; ii. fails to make a proper entry in his notarial register; iii. fails to send a copy of his entries to the Executive within10 days of the following month; iv. fails to affix to acknowledgments date of expiration of his commission; v. fails to submit his notarial register, when filled, to the Executive Judge; vi. fails to make his report to the Executive Judge within a reasonable time, concerning the performance of his duties, as may be required by the Judge; vii. fails to require the presence of a principal at the time of a notarial act; viii. fails to identify a principal on the basis of personal knowledge or competent evidence; ix. executes a false or incomplete certificate; x. knowingly perform or fails to perform any other act prohibited or mandated by the Rules; xi. commits any other dereliction or act which in the judgment of the Executive Judge constitutes good cause for revocation of commission or imposition of administrative sanction. Q: Enumerate the instances when a Notary Public may authenticate documents without requiring the physical presence of the signatories. 1.

2.

3.

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If the signatory is old or sick or otherwise unable to appear, his presence may be dispensed with if one credible witness not privy to the instrument and who is known to the notary public, certifies under oath or affirmation the identity of the signatory. If two credible witnesses neither of whom is privy to the instrument, not known to the notary public but can present their own competent evidence of identity of the signatory. In cases of copy certification and issuance of certified true copies. (2010 Bar Question)

Q: A party to a contract does not know how to write. Neither can he affix his thumbmark because both hands were amputated. How will that person execute the contract? A: The party may ask the notary public to sign in his behalf. (2012 Bar Question, MCQ)

Q: Raul sought Ely’s disbarment for notarizing a deed of sale knowing that four of the sellers were dead. Ely admitted that he notarized the deed of sale but only after his client assured him that the signatures of the others were authentic. Later, Raul moved to have the complaint against him dismissed on the ground that it was filed because of a misunderstanding which had already been clarified. This prompted the IBP to recommend the dismissal of the complaint. Can the dismissal be allowed? A: No. given Ely’s admission that he notarized the document when some signatories were absent. (Sec. 2, Rule IV, A. M. No. 02-8-13-SC) (2011 Bar Question) “Regular place of work or business” of a notary public The regular place of work or business refers to a stationary office in the city or province wherein the notary public renders legal and notarial services. (Sec. 11, Rule II, 2004 Rules on Notarial Practice) Q: Atty. Sabungero obtained a notarial commission. One Sunday, while he was at the cockpit, a person approached him with an affidavit that needed to be notarized. Atty. Sabungero immediately pulled out from his pocket his small notarial seal, and notarized the document. Was the affidavit validly notarized? Explain. A: Sec. 2 Rule IV of the 2004 Rules on Notarial Practice provides that a Notary Public shall not perform a notarial act outside his regular place of work, except in few exceptional occasions, at the request of the parties. Notarizing in a cockpit is not one of such exceptions. The prohibition is aimed to eliminate the practice of ambulatory notarization. However, assuming that the cockpit is within his notarial jurisdiction, the notarization may be valid but the notary may be disciplined. (2009 Bar Question) Competent Evidence of Identity refers to the identification of an individual based on: 1.

2.

At least one current identification document issued by an official agency bearing the photograph and signature of the individual such as but not limited to those enumerated in the law. The oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification. (Amendment to Sec. 12 (a), Rule II of the 2004 Rules on Notarial Practice, Feb. 19, 2008).

UST LAW| ACADEMICS COMMITTEE

UST LAW PRE-WEEK NOTES 2014 LEGAL AND JUDICIAL ETHICS Q: Under the 2004 Rules of Notarial Practice, what may used to satisfy the requirement of "competent evidence of identity"? A: (C) Voter’s ID, NBI clearance, Driver’s license.(2013 Bar Question) b.

Sanctions: 1. The Executive Judge shall cause the prosecution of any person who: i. knowingly acts or impersonates a notary public; ii. knowingly obtains, conceals, defaces, or destroys the seal, notarial register, or official records of a notary public, and iii. knowingly solicits, coerces, or in any way influences a notary public to commit official misconduct. The Executive Judge concerned shall submit semestral reports to the Supreme Court on discipline and prosecution of notaries public.

Draft of the Code of Judicial Conduct is intended to be a Universal Declaration of Judicial Standards applicable in all judiciaries. As such, it was adopted by the Supreme Court as its Code of Judicial Conduct, in solidarity with the other jurisdictions in the world. (2009 Bar Question) The six (6) canons under the New Code of Judicial Conduct for the Philippine Judiciary 1. Independence 2. Integrity 3. Impartiality 4. Propriety 5. Equality 6. Competence and Diligence Independence – pre-requisite for the rule of law and fundamental guarantee of a fair trial (Canon 1).  

G. CANONS OF PROFESSIONAL ETHICS The Canons of Professional Ethics (CPE) were framed by the American Bar Association in 1908 and were adopted in the Philippines in 1917 and subsequently revised in 1946. It is one of the sources or the main basis of our legal ethics at the present which is the Code of Professional Responsibility (CPR). While the CPE is superseded by the CPR, the CPE continues to be an invaluable source of knowledge and understanding of legal ethics. Note: Most of the provisions of the Code of Professional Ethics are incorporated in the Code of Professional Responsibility.

Covers individual and institutional independence of judges and the judiciary. Sec. 1 – judges shall exercise functions on the basis of facts and law, independently, free from influence from any quarter. o Go vs. CA, 206 SCRA 165 – public opinion o Ramirez v. Corpuz-Macandog, 144 SCRA 462 – public official o Sec. 2 – judges shall be independent from judicial colleagues. o



Sabitsana v. Villamor, 202 SCRA 405 – pressuring MTC judge o Sec. 4 - judicial prestige should not be used to advance private interests of others. o

Sec. 5 – judges shall be free from inappropriate connection with the executive and judicial branches.

o

Sec. 6 – judges shall be independent in relation to society in general.

o

Sec. 7 – judges shall maintain and enhance institutional and operational independence of the judiciary.

o

Sec. 8 - judges shall promote high standards of judicial conduct in order to promote public confidence in the judiciary which is fundamental to the maintenance of judicial independence.

II. JUDICIAL ETHICS The two sources of judicial ethics are: a.

New Code of Judicial Conduct for the Philippine Judiciary (Bangalore Draft); 

b.

Sec. 3 - judges shall refrain from influencing another court or administrative agency.

Promulgated April 27, 2004; effective June 1, 2004.

Code of Judicial Conduct 

Promulgated by the Supreme Court of the Philippines on September , 1989; effective October 20, 1989.

Q: True or False: The Bangalore Draft, approved at a Roundtable Meeting of Chief Justices held at The Hague, is now the New Code of Judicial Conduct in the Philippines.

Integrity – essential in the official and personal demeanor of judges. (Canon 2)

A: TRUE. The whereas clause of the New Code of Judicial Conduct in the Philippines provides that the Bangalore

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UST LAW PRE-WEEK NOTES 2014 LEGAL AND JUDICIAL ETHICS o

Sec. 1 – judge’s conduct should not only be above reproach but perceived to be above reproach.

(b) The judge has previously served as a lawyer or was a material witness in the matter in controversy. (c) The judge or member of his family has an economic interest in the outcome of the matter in controversy. (d) The judge served as executor, administrator, guardian, trustee or lawyer in the matter in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein. (e) The judge’s ruling in a lower court is the subject of review. Sandoval v. CA, 260 SCRA 283 – partial participation (f) The judge is related by consanguinity or affinity to a party litigant within the sixth civil degree or to counsel within the fourth civil degree. Villaluz v. Mijares, 288 SCRA 594 – petitioner’ is judge’s daughter

In the judiciary, moral integrity is more than a cardinal virtue. It is a necessity. (Fernandez v. Hamoy, 436 SCRA 186) Ignorance of the law is a mark of incompetence, and where the law involved is elementary, ignorance thereof is considered an indication of lack of integrity (Macalintal v. Teh, 280 SCRA 623) o

Sec. 2 - conduct of judges must reaffirm people’s faith in the integrity of the judiciary.

o

Sec. 3 - judges should take appropriate disciplinary measures against lawyers and court personnel.

Impartiality – essential to the proper discharge of the judicial office. (Canon 3) o

Sec. 1 – Judges shall perform duties without favor, bias or prejudice.

o

Sec. 2 - Judges should ensure that their conduct maintains and enhances the confidence of the public in the impartiality of the judge and the judiciary. Pimentel v. Salanga, 21 SCRA 160 – people’s faith in the judiciary Parayno v. Meneses, 231 SCRA 807 – duty to sit

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o

Sec. 3 – Judges shall conduct themselves so as to minimize occasions in which it will be necessary for them to be disqualified from hearing or deciding a case.

o

Sec. 4 – Judges shall not make any comment might be expected to influence the outcome of the proceeding before him.

o

Sec. 5 – Judges shall disqualify themselves in any proceedings in which they are unable to decide the matter impartially or in which it may appear to a reasonable observer that they are unable to decide the matter impartially. (Ref. Sec. 1, Rule 137, Rules of Court) (a) The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts.

Q: True or False: A companion or employee of the judge who lives in the judge’s household is included in the definition of the "judge’s family." A: True. A judge’s family includes the spouse, son, daughter, son in law, daughter in law and any other relative by consanguinity or affinity within the sixth civil degree, or a person who is a companion or employee of the judge and who lives in his household. (2009 Bar Question) (g) The judge knows that his or her spouse or child has a financial interest as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy, or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceedings. o

Sec. 6. If the parties and lawyer, independently of the judge’s participation, all agree in writing that the reason for the inhibition is immaterial or unsubstantial, the judge may then participate in the proceedings. The agreement, signed by all the parties and lawyers, shall be incorporated in the record of the proceedings. “Remittal of disqualification” – Code of Judicial

conduct Propriety – essential to all activities of a judge. (Canon 4) o

Sec. 1 – Judges shall avoid impropriety and appearance of impropriety in all their activities. a. Acts not per se improper can be perceived by the larger community as such.

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o

Judge who heard case while on vacation and dressed only in a polo shirt (Liwanag v. Lusre, A.M> MTJ-08-98-1168, April 21, 1999); tasteless jokes in a wedding ceremony (Hadap v. Lee, 114 SCRA 559). Sec. 2 - Judges must accept personal restrictions that might be viewed as burdensome by ordinary citizens, and in particular conduct themselves in a way that is consistent with the dignity of the judicial office. o Sec. 3 – In their relations with lawyers who practice regularly before their courts, judges shall avoid situations giving rise to suspicions or appearance of favoritism or partiality. o Sec. 4 – A judge shall not participate in determination of a case in which any member of their family represents a litigant or is in any manner associated with the case. o Sec. 5 - A judge shall not allow the use of his residence by members of the legal profession to receive clients of the latter or of other members of the legal profession. o Sec. 6 – In exercising freedom of expression, belief, association and assembly, judges shall conduct themselves in such a manner as to preserve the dignity, impartiality and independence of the judicial office.

Macias v. Arula, 115 SCRA 135 – participating in a political rally In re Judge Acuña, 464 SCRA 250 – use of expletives o

o

Sec. 7 – Judges shall inform themselves about their personal fiduciary and financial interests and those of the members of their family. Sec. 8 – Judges shall not use or lend the prestige of the judicial office to advance their private interests or those of a member of their family, or any one else. Vistan v. Nicolas, 201 SCR 524 – filed complaint for estafa in his own sala and assisted in issuance of warrant of arrest. Dionisio v. Escaño, 302 SCRA 411 – posting notices for family restaurnt business in court bulletin board

otherwise interfere with the performance of judicial duties. In re Designation of Judge Rodolfo Manzano, AM 88-7-861-RTC – consitutional prohibition against designation of judges to agencies performing quasi-judicial or administrative functions. o

MTC judges as notaries public ex officio, may not notarize private documenrts, except (1) when no lawyers available in the municipality, and (2) notarial feees are paid to the government’s account. o

Sec. 12 – Judges may form or join associations of judges or participate in other organization representing the interests of judges. o Sec. 13 – Judges and members of their families shall neither ask for nor accept any gift, bequest, loan or favor in relation to anything done or to be done or entitled to be done by him in connection with the performance of his judicial duties. o Sec. 14. Judges shall not knowingly permit court staff or others subject to their influence, direction or authority, to ask for or accept any gift, bequest, loan or favor in relation to anything done or to be done or entitled to be done in connection with their duties and functions. o Sec. 15. Subject to law and to any local requirements of public disclosure, judges may receive a token gift, award or benefit as appropriate to the occasion on which it is made, provided that such gift, award or benefit might not be reasonably perceived as intended to influence the judge in the performance of official duties or otherwise give rise to an appearance of partiality. Gifts from foreign sources governed by Sec. 7 (d) of R.A. 6713. Equality - essential to the due performance of judicial duties. (Canon 5) o

Sec. 1 – Judges shall be aware of and understand diversity in society and differences arising from various sources. a. Awareness of international instruments concerning equality of humn beings, and rights of women and children. b. Gender and Development Mainstreaming Plan for the Philippine Judicial System adopted on December 9, 2003. c. Judges should avoid first impressions, hasty conclusions and prejudgments.

o

Sec. 2 – Judges shall not in performance of judicial duties manifest bias or prejudice on irrelevant grounds.

Q: A retired member of the Judiciary is now engaged in private practice. In attending hearings, he uses his car bearing his protocol plate which was issued to him while still in the service. Pass on the ethical aspect of the judge’s use of the protocol plate. A: The judge’s use of his protocol plate after his retirement is unethical. He is no longer entitled to use such plate after his retirement. As a practicing lawyer, he should not engage in unlawful, immoral or deceitful conduct. His continued use of such plate is dishonest conduct. (2010 Bar Question) o

o

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Sec. 9 – Confidential information acquired by a judges in their official capacity shall not be used for any other purpose related to their judicial duties. Sec. 10 – Judges may engage in activities that do not detract from the dignity of the judicial office or

Sec. 11 - Judges shall not practice law while the holder of judicial office.

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Sec.3 - Judges shall carry out judicial duties with appropriate consideration for all persons, without differentiation on any irrelevant ground.

o

Sec. 4. Judges shall not permit court staff to differentiate between persons concerned in a matter before the judge on any irrelevant ground.

o

Sec. 5 – Judges shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice based on irrelevant grounds.

Competence and diligence – prerequisite to the due performance of judicial duties. (Canon 6) o o

o

o

Sec. 1 – Judicial duties of a judge shall take precedence over all other activities. Sec. 2 – Judges shall devote their professional activity to judicial duties, which include other tasks relevant to the judicial office or the court’s operations. Sec. 3 – Judges shall take reasonable steps to maintain and enhance their knowledge, skill and personal qualities for the proper performance of judicial duties. Sec. 4 – Judges shall keep themselves informed about relevant developments of international law, including international conventions and other instruments establishing human rights norms. Two general source of international law – custom art and conventional norms.

o

Sec. 5 – Judges shall perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly and with reasonable promptness.

o

Sec. 6. Judges shall maintain order and decorum in all proceedings before the court, and be patent, dignified and courteous in relation to litigants, witnesses, lawyers and others with whom the judge deals in an official capacity.

o

Sec. 7 – Judges shall not engage in conduct incompatible with the diligent discharge of judicial duties.

Q: After being diagnosed with stress dermatitis, Judge Rosalind, without seeking permission from the Supreme Court, refused to wear her robe during court proceedings. When her attention was called, she explained that whenever she wears her robe she is reminded of her heavy caseload, thus making her tense. This, in turn, triggers the outbreak of skin rashes. Is Judge Rosalind justified in not wearing her judicial robe? Explain. A: Judge Rosalind is no justified. In Chan v. Majaducon, the Supreme Court emphasized that the wearing of robes by judges as required by Adm. Circular No. 25, serves the dual purpose of heightened public consciousness on the solemnity of judicial proceedings and in impressing upon the judge the exacting

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obligations of his office. The robe is a part of the judges’ appearance and is as important as the gavel. The Supreme Court added that “while circumstances, such as a medical condition claimed by the respondent judge, may exempt one from complying with A.C. no. 25, he must first secure the Court’s permission for such exemption. He cannot simply excuse himself, like respondent judge, from complying with the requirement. (2009 Bar Question) Liabilities Q: Reacting to newspaper articles and verbal complaints on alleged rampant sale of Temporary Restraining Orders by Judge X, the Supreme Court ordered the conduct of a discreet investigation by the Office of the Court Administrator. Judges in the place where Judge X is assigned confirmed the complaints. What administrative charge/s may be leveled against Judge X? Explain. A: He could be charged with gross misconduct, arising from violations of the Anti-Graft and Corrupt Practices Act. He could also be charged with violations of Canon 4 of the New Code of Judicial Conduct for the Philippine Judiciary which provides that judges and members of their families shall neither ask for, nor accept, any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done by him or her inj connection with the performance of judicial duties. (2010 Bar Question)

Q: Judge X was invited to be a guest speaker during the annual convention of a private organization which was covered by media. Since he was given the liberty to speak on any topic, he discussed the recent decision of the Supreme Court declaring that the President is not, under the Constitution, proscribed from appointing a Chief Justice within two months before the election. In his speech, the judge demurred to the Supreme Court decision and even stressed that the decision is a serious violation of the Constitution. Did Judge X incur any administrative liability? Explain. If instead of ventilating his opinion before the private organization, Judge X incorporated it, as an obiter dictum, in one of his decisions, did he incur any administrative liability? Explain. A: He did not incur administrative liability. Judges, like any other citizen, are entitled to freedom of expression, but in exercising such rights, they shall always conduct themselves in a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary. In deciding cases, a judge is supposed to be faithful to the law, which includes decisions of the SC. If he feels that a doctrine enunciated by the SC is against his way of reasoning, he may state his personal opinion but should decide the case in accordance with the law. The fact that Judge X ventilated his personal opinion in an obiter dictum indicates that he did not decide the case in his personal opinion. But still, it undermines the authority of the SC and he may incur administrative liability for it. (2010 Bar Question)

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UST LAW PRE-WEEK NOTES 2014 LEGAL AND JUDICIAL ETHICS Financial Activities Q: Judges of the first and second level courts are allowed to receive assistance from the local government units where they are stationed. The assistance could be in the form of equipment or allowance. Justices at the Court of Appeals in the regional stations in the Visayas and Mindanao are not necessarily residents there, hence, they incur additional expenses for their accommodations. Pass on the propriety of the Justices’ receipt of assistance/allowance from the local governments. A: In Dadole v. COA and Leynes v. COA, the SC upheld the grant of allowances by LGU’s to judges, prosecutors, public elementary and high school teachers and other national government officials assigned in such locality pursuant to the Local Government Code. The SC held that to rule against the power of the LGU’s will subvert the principle of local autonomy zealously granted by the constitution. Hence, it is not improper for judges to receive allowances. (2010 Bar Question) Q: On the proposal of Judge G, which was accepted, he and his family donated a lot to the city of Gyoza on the condition that a public transport terminal would be constructed thereon. The donation was accepted and the condition was complied with. The family-owned tracts of land in the vicinity of the donated lot suddenly appreciated in value and became commercially viable as in fact a restaurant and a hotel were soon after built. Did the Judge commit any violation of the Code of Judicial Conduct? A: In Salunday v. Labitoria, the SC held that the act of Justice Labitoria of recommending the construction of the Hall of Justice in a parcel of land close to a hotel owned by a corporation which his wife is a stockholder was not improper because there is no clear indication that in recommending such, the respondent was impelled by a desire to benefit financially. In the instant case, it seems clear that the judge and his family is motivated by and anticipated increase in the value of the property. He is then liable for violation Canon 4 of the New Code of Judicial Conduct which provides that judges shall not use the prestige of the judicial office to advance their private interests or those members of their families or anyone else nor convey the impression that they are in a position to influence them in a performance of official duty. (2010 Bar Question)

Discipline of Members of the Supreme Court Impeachment It is a constitutional process of removing public servants from office as an assurance against abusive officials in the country (Impeachment Primer, Official Gazette, 2012). Object of impeachment The object of impeachment is solely to determine whether or not the official is worthy of the trust conferred upon him/her. It is not determination of criminal guilt or innocence as in criminal case (Ibid.). Grounds for Impeachment 1. 2. 3. 4. 5.

Treason Bribery Other High Crimes Graft and Corruption Betrayal of Public Trust (Sec. 2 Art. XI, 1987 Constitution)

Procedure: b.

c.

d.

e.

f.

A verified complaint for impeachment may be filed by any member of the House of Representatives or by any citizen upon a resolution of endorsement by any member thereof. The complaint is referred to the proper committee, and after hearing and a majority vote of it member, the committee shall submit its report to the House. A vote of at least one-third of all the members of the house shall be necessary either to affirm a favorable resolution of the committee with the articles of impeachment, or override its contrary resolution. The Senate shall have the sole power to try and decide all cases of impeachment while sitting for that purpose. No person shall be convicted without the concurrence of two thirds of all the members of the Senate.

Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines. But the party convicted shall be liable and subject to prosecution, trial and punishment according to law. (Secs. 2, 3, 6 and 7, Article XI, 1987 Constitution) Disbarment of judges and justices Judges and justices, being lawyers, may also be disbarred, if found guilty of certain crimes and/or other causes for disbarment under the Rules of Court. Justices of the Supreme Court however may not be disbarred unless and until they shall have been first impeached in accordance with the Constitution.

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Q: Is the Law on Secrecy of Foreign Currency Deposit Account (FCDA) a defense in failing to include a dollar deposit in a SALN? A: No. The issue is not the conflict between the FCDA requiring secrecy of foreign currency deposits and the disclosure required by the SALN law, but the Constitution which requires public officials to declare their assets and does not distinguish between peso and foreign accounts (Senator Judge Pangilinan).



The Supreme Court in one case said that the FCDA cannot be used as a haven for the corrupt and the criminals. To interpret it in the manner that the Chief Justice would want … is to say that the law could be used as a haven to hide proceeds of criminal acts. (Senator Judge Drilon) Ethical Lessons from Former Chief Justice Corona’s Impeachment: 



 1.

2.



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The Senate, sitting as an impeachment court, found former Chief Justice Corona guilty of the failure to disclose to the public his statement of assets, liabilities, and net worth as required under sec. 17, Art. XI of the 1987 Constitution, by a vote of 20-3. Note: It is the "obligation" of an employee to submit a sworn statement, as the "public has a right to know" the employee's assets, liabilities, net worth and financial and business interests. Hence, a court interpreter who failed to include in her SALN rental payments she received from a market stall was dismissed from service (Rabe v. Flores, A.M. No. P-97-1247, May 14, 1997). The Senator judges ruled that the law applies to all, including the Chief Justice of the Philippines, thus, his failure to include his dollar accounts in his SALN warrants his impeachment from office. Mandate upon the Chief Justice to disclose his Statement of Assets and Liabilities (SALN): 1987 Constitution - A public officer or employee shall, upon assumption of office submit a declaration under oath of his assets, liabilities, and net worth. This includes members of the Supreme Court among others. R.A. 6713 - Section 8. Statements and Disclosure. Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households. The basis of the public’s right to inquire upon the statement of assets and liabilities or public officers rests upon the postulate of public office is a public trust, which is institutionalized in the Constitution to protect the people from abuse of governmental power.







Note: While providing guaranty for that right, the Constitution also provides that the people’s right to know is limited to “matters of public concern” and is further subject to such limitations as may be provided by law. Custodians of public documents must not concern themselves with the motives, reasons and objects of the persons seeking access to the records. While public officers in the custody or control of public records have the discretion to regulate the manner in which records may be inspected, examined or copied by interested persons, such discretion does not carry with it the authority to prohibit access, inspection, examination, or copying of the records. Canons 3 and 4 of the new Code of Judicial Conduct mandate, respectively, that “judges shall ensure that not only is their conduct above reproach, but that it is perceived to be so in the view of the reasonable observer” and that “judges shall avoid improprieties and the appearance of impropriety in all of their activities.” These very stringent standards of decorum are demanded of all magistrates and employees of the courts. As such, those who serve in the judiciary, particularly justices and judges, must not only know the law but must also possess the highest degree of integrity and probity, and an unquestionable moral uprightness both in their public and private lives (Veloso vs. Caminade, A.M. No. RTJ- 011655, July 8, 2004) In the Judiciary, moral integrity is more than a cardinal virtue, it is a necessity. The exacting standards of conduct demanded from judges are designed to promote public confidence in the integrity and impartiality of the judiciary. The integrity of the Judiciary rests not only upon the fact that it is able to administer justice, but also upon the perception and confidence of the community that the people who run the system have administered justice. In order to create such confidence, the people who run the judiciary, particularly judges and justices, must not only be proficient in both the substantive and procedural aspects of the law, but more importantly, they must possess the highest integrity, probity, and unquestionable moral uprightness, both in their public and in their private lives. Only then can the people be reassured that the wheels of justice in this country run with fairness and equity, thus creating confidence in the judicial system. (Tan vs. Pacuribot, A.M. No. RTJ-06-1982, December 14, 2007).

Ethical Aspect of Impeachment 

Public officers and employees must at all times be accountable to the people, serve them with

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





utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives (Sec. 1, Article XI 1987 Constitution). The principle of accountability provides that all government officials and employees, whether they be the highest in the land or the lowliest public servants, shall at all times be answerable for their misconduct to the people from whom the government derives its powers. The purpose of impeachment is to protect the people from official delinquencies or malfeasances. It is therefore primarily intended for the protection of the State, not for the punishment of the offender. It is essential that responsible and competent public officers be chosen for public office to maintain the faith and confidence of the people to the government otherwise it becomes ineffective. No popular government can survive without the confidence of the people. It is the lone guarantee and justification of its existence. Discipline of Members of the Judiciary

a. b.

Note: There is misconduct when there is reliable evidence showing that judicial actions are corrupt or inspired by intent to violate the law or in persistent disregard of legal rules. 2.

Inefficiency – implies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence and circumspection which the law requires in the rendition of any public service.

Classifications of Administrative charges 1. 2. 3.

Serious Less serious Light 1.

If the judge is guilty of a serious charge: (a) dismissal from the service, (b) forfeiture of all or part of the benefits as the Court may determine, except accrued leave benefits; (c) disqualification from reinstatement or appointment to any public office, including government owned or controlled corporation, (d) Suspension from office without salary and other benefits for more than 3 but not exceeding 6 months. and (e) A fine of more than P20,000.00 but not exceeding P40,000.00.

2.

If the judge is guilty of a less serious charge: (a) Suspension from office without salary and other benefits for not less than 1 nor more than 3 months, or (b) A fine of more than P10,000.00 but no exceeding P20,000.00.

3.

If the judge is guilty of a light charge: (a) A fine of not less than P1,000.00 but not exceeding P10,000.00, and/or (b) Censure, (c) Reprimand, (d) Admonition with warning.

Discipline of the Members of the Lower Court Judges, Justices of the Court of Appeals and the Sandiganbayan The acts of a judge in his judicial capacity are not subject to disciplinary action. In the absence of fraud, malice or dishonesty in rendering the assailed decision or order, the remedy of the aggrieved party is to elevate the assailed decision or order to the higher court for review and correction. However, an inquiry into a judge’s civil, criminal and/or administrative liability may be made after the available remedies have been exhausted and decided with finality. (Republic v. Caguioa, A.M. No. RTJ-07-2063, June 26, 2009) Institution of proceedings for the discipline of judges and justices: Proceedings for the discipline of judges of regular and special courts and justices of the Court of Appeals and the Sandiganbayan may be instituted: 1. 2.

3.

Motu proprio by the Supreme Court; Upon a verified complaint filed before the Supreme Court supported by: a. Affidavit of persons who have personal knowledge of the facts alleged therein; or b. Documents which may substantiate said allegations. Anonymous complaint supported by public records of indubitable integrity filed with the Supreme Court.

Grounds for discipline of judges and justices: 1.

Serious Misconduct – implies malice or wrongful intent, not mere error of judgment. Judicial acts complained of:

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Must be corrupt or inspired by an intention to violate the law; or Were in persistent disregard for well-known legal rules.

Res Ipsa Loquitor vis-à-vis Discipline of Judges Q: In Administrative Circular No. 1 addressed to all lower courts dated January 28, 1988, the Supreme Court stressed that all judges are reminded that the Supreme Court has applied the Res Ipsa Loquitor rule in the removal of judges even without any formal investigation whenever a decision, on its face, indicates gross incompetence or gross ignorance of the law or gross misconduct (Cathay Pacific Airways v. Romillo, G.R. No. 64276, 12 August

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1986). The application of the res ipsa loquitor rule in the removal of judges is assailed in various quarters as inconsistent with due process and fair play. Is there any basis for such a reaction? Explain. A: 1. First view - there is a basis for the reaction against the res ipsa loquitor rule on removing judges. According to the position taken by the Philippine Bar Association, the res ipsa loquitor rule might violate the principle of due process that is the right to be heard before one is condemned. Moreover, Rule 140 of the Rules of Court provides for the procedure for the removal of judges. Upon service of the complaint against him, he is entitled to file an answer. If the answer merits a hearing, it is referred to a justice of the Court of Appeals for investigation, the report of the investigation is submitted to the Supreme Court for proper disposition. The danger in applying the res ipsa loquitor rule is that the judge may have committed only an error of judgment. His outright dismissal does violence to the jurisprudence set in. (In Re Horilleno, 43 Phil. 212, March 20, 1922) 2. Second view- According to the Supreme Court the lawyer or a judge can be suspended or dismissed based on his activities or decision, as long as he has been given an opportunity to explain his side. No investigation is necessary. Quantum of evidence required The ground for removal of a judicial officer should be established beyond reasonable doubt. Such is the rule where the charge on which the removal is sought is misconduct in office, willful neglect, corruption or incompetence. The general rules in regard to admissibility of evidence in criminal trials apply. Disqualification of Justice and Judges (Rule 137) Mandatory or compulsory instances that a judge may be disqualified: 1. 2.

3. 4.

The judge, or his wife, or child is pecuniarily interested as heir, legatee, creditor or otherwise The judge is related to either party of the case within the sixth degree of consanguinity or affinity, or to the counsel within the fourth degree (computed according to the rule of civil law) The judge has been an executor, administrator, guardian, trustee or counsel The judge has presided in any inferior court when his ruling or decision is the subject of review (Section 1 of Rule 317)

Rationale: there is a conclusive presumption that the judge cannot objectively or impartially try the case. The law

expressly prohibits him and strikes at the judge’s authority to hear and decide the case. Exception to the aforementioned grounds: If despite the parties’ knowledge of the disqualification gave their written consent that the otherwise disqualified judge would hear and decide their case. Voluntary Inhibition according to the Rules of Court states that a judge through the exercise of sound discretion may, for just or valid reasons to inhibit himself. Note: A presiding judge must maintain and preserve the trust and faith of the parties-litigants. He must hold himself above reproach and suspicion. At the very sign of lack of faith and trust in his actions, whether well-grounded or not, the judge has no other alternative but to inhibit himself from the case (Gutang v. Court of Appeals, 292 SCRA 76). Q: In a case for homicide filed before the Regional Trial Court (RTC), Presiding Judge Quintero issued an order for the arrest of the accused, granted a motion for the reduction of bail, and set the date for the arraignment of the accused. Subsequently, Judge Quintero inhibited himself from the case, alleging that even before the case was raffled to his court, he already had personal knowledge of the circumstances surrounding the case. Is Judge Quintero’s inhibition justified? Explain. A: Judge Quintero’s inhibition is justified. One of the grounds for inhibition under Section 5, Canon 3 of the New Code of Judicial Conduct for the Philippine Judiciary is “where a judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings”. (2009 Bar Question) Q: Rebecca’s complaint was raffled to the sala of Judge A. Rebecca is a daughter of Judge A’s wife by a previous marriage. This is known to the defendant who does not, however, file a motion to inhibit the Judge. Is the Judge justified in not inhibiting himself from the case? A: The Judge is not justified in not inhibiting himself. It is mandatory for him to inhibit as he is related to any of the parties by consanguinity or affinity within the sixth civil degree. Judge A, being the stepfather of Rebecca, is related to her by affinity of just one degree. Judges shall disqualify themselves from participating in any proceeding in which they are unable to decide the matter impartially or in which it may appear to a reasonable observer that they are unable to decide the matter impartially. (2010 Bar Question) Powers and Duties of Courts and Judicial Officers (Rule 135) GR: Courts of justice shall always be open; Justice to be promptly and impartially administered. XPN: Legal holidays Requirement of public hearing: GR: The sitting of every court of justice shall be public

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UST LAW PRE-WEEK NOTES 2014 LEGAL AND JUDICIAL ETHICS XPN: When the evidence to be adduced is of such nature as to require their exclusion in the interest of morality or decency.

morning or afternoon session, all the notes he has taken, to be attached to the record of the case.(Sec. 17, Rule 136, Rules of Court)

Note: all trials on merits shall be conducted in open court or regular court room.

Note: Transcript of notes delivered to the clerk, must be duly initialed on each page, to be attached to the record of the case.

Availability to the public of court records: GR: The records of every court of justice shall be public records and shall be available for the inspection of any interested person, at all proper business hours, under the supervision of the clerk having custody of such records. XPN: Unless the court shall, in any special case, have forbidden their publicity, in the interest of morality or decency. Enforceability of inferior court’s processes: GR: Within the province where the municipality or city lies. XPN: the approval of judge of Regional Trial Court of the province where it would be enforced. Court Records and General Duties of Clerks and Stenographer (Rule 136) Records kept by the clerk: 1.

General Docket

2.

Judgment and Entries Book

3.

Execution Book

Note: records may not be taken from the clerk’s office except by order of the court. However, the Solicitor General or any of his assistants, the provincial fiscal or his deputy, and the attorneys de officio shall be permitted, upon proper receipt, to withdraw from the clerk’s office the record of any case in which they are interested. Duties of clerks in general: 1.

The clerk shall safely keep all records, papers, files, exhibits and public property committed to his charge, including the library of the court, and the seal and furniture belonging to his office (Sec. 7, Rule 136, Rules of Court); 2. Demand that the stenographer deliver notes of the session of the court to him immediately after each session (Sec. 17, Rule 136, Rules of Court). Furthermore, in the absence of the judge, the clerk may: 1. 2.

Perform all the duties of the judge in receiving applications, petitions, inventories, reports; Issue orders and notices(Sec. 5, Rule 136, Rules of Court)

Legal Fees (RULE 141, A.M. NO. 04-2-04-SC) Payment should be made upon filing of the pleading or other application and the prescribed fee to be paid in full upon filing of said same. If the fees are not paid, the Court may refuse to proceed with the action until they are paid and may dismiss the action or proceeding. Fees in Lien If the Court awards claim not alleged or more than that claimed, the amount shall be considered fees in lien and the party concerned shall pay the additional fees which shall constitute a lien on the judgment in the satisfaction of said lien. Persons authorized to collect legal fees (list exclusive): 1.

Clerks of the Supreme Court, Court of Appeals, Sandiganbayan and Court of Tax Appeals 2. Clerks of Regional Trial Courts 3. Clerks of Court of the First Level Courts 4. Sheriffs, process servers and other persons serving processes 5. Notaries 6. Other officers taking depositions Note: The persons herein authorized to collect legal fees shall be accountable officers and shall be required to post bond in such amount as prescribed by the law. Exempt from payment of Legal Fees:  Indigent litigants - the legal fees shall be a lien on any judgment rendered in the case favorable to the indigent litigant unless the court otherwise provides.  Republic of the Philippines – but does not include local governments and governmentowned or controlled corporations with or without independent charters. Costs (Rule 142) Recovery of Costs Costs shall be allowed to a prevailing party as a matter of course. However, the court shall have power, for special reasons, to adjudge that either party shall pay the costs of an action, or that the same be divided, as may be equitable Note: costs cannot be adjudged against the Republic of the Philippines.

Duty of stenographer: It shall be the duty of the stenographer to deliver to the clerk of court, immediately at the close of such

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Dismissed appeal or action Court retains the power to render judgment for costs as justice may require. Frivolous Appeal Double or Treble Costs shall be imposed on the plaintiff or appellant, which shall be paid by his attorney, if so ordered by the Court False Allegations False Allegation made without reasonable cause and found untrue shall subject the offending party to the reasonable expenses as may have been necessarily incurred by the other part by reason of such untrue pleading. Non-appearance of Witnesses If a Witness fails to appear at the time and place specified in the subpoena issued by any inferior court, the costs of the warrant of arrest and of the arrest of the witness shall be borne by him, if the court determines that his failure to answer the subpoena was willful and without excuse.

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