Legal Ethics Digests (2)

MADERADA V. MEDIODEA SEC. 34. By whom litigation conducted. -- In the court of a justice of the peace a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney, and his appearance must be either personal or by a duly authorized member of the bar. This provision means that in a litigation, parties may personally do everything during its progress -from its commencement to its termination. When they, however, act as their own attorneys, they are restricted to the same rules of evidence and procedure as those qualified to practice law; otherwise, ignorance would be unjustifiably rewarded. Individuals have long been permitted to manage, prosecute and defend their own actions; and when they do so, they are not considered to be in the practice of law. One does not practice law by acting for himself any more than he practices medicine by rendering first aid to himself. Clearly, in appearing for herself, complainant was not customarily or habitually holding herself out to the public as a lawyer. Neither was she demanding payment for such services. Hence, she cannot be said to be in the practice of law. The law allows persons who are not lawyers by profession to litigate their own case in court. The right of complainant to litigate her case personally cannot be taken away from her. Her being an employee of the judiciary does not remove from her the right to proceedings in propria persona or to selfrepresentation. To be sure, the lawful exercise of a right cannot make one administratively liable. However, it was also clearly established that complainant had appeared on behalf of her co-plaintiff in the case below, for which act the former cannot be completely exonerated. Representing oneself is different from appearing on behalf of someone else. The raison detre for allowing litigants to represent themselves in court will not apply when a person is already appearing for another party. Obviously, because she was already defending the rights of another person when she appeared for her co-plaintiff, it cannot be argued that complainant was merely protecting her rights. That their rights may be interrelated will not give complainant authority to appear in court. The undeniable fact remains that she and her co-plaintiff are two distinct individuals. The former may be impairing the efficiency of public service once she appears for the latter without permission from this Court. Imelda Y. Maderada is hereby REPRIMANDED for appearing as counsel on behalf of a co-plaintiff without court authority and is likewise warned that a future similar act shall be sanctioned more severely.

CANTIMBUHAN V. JUDGE CRUZ AND FISCAL QUILATAN Cantimbuhan filed separate criminal complaints against Patrolmen Danilo San Antonio and Rodolfo Diaz for less serious physical injuries in the then Municipal Court of Parañaque, Metro Manila. Petitioners Nelson B. Malana and Robert V. Lucila, in 1979, were senior law students of the U.P. assistance to the needy clients in the Office of the Legal Aid. Thus,

petitioners Malana and Lucila filed their separate appearances, as friends of complainant-petitioner Cantimbuhan. Herein respondent Fiscal Quilatan opposed the appearances of said petitioners, and respondent judge sustained the respondent fiscal and disallowed the appearances of petitioners Malana and Lucila, as private prosecutors in said criminal cases. Section 34, Rule 138 of the Rules of Court, clearly provides that in the municipal court a party may conduct his litigation in person with the aid of an agent appointed by him for the purpose. Further, if a nonlawyer can appear as defense counsel or as friend of the accused in a case before the municipal trial court, with more reason should he be allowed to appear as private prosecutor under the supervision and control of the trial fiscal. CRUZ V. JUDGE MIJARES and MINA Ferdinand A. Cruz (petitioner) sought permission to enter his appearance for and on his behalf, before the RTC, Branch 108, Pasay City, as the plaintiff in Civil Case No. 01-0410, for Abatement of Nuisance. Petitioner, a fourth year law student, anchors his claim on Section 34 of Rule 138 of the Rules of Court that a non-lawyer may appear before any court and conduct his litigation personally. The trial court held that for the failure of petitioner Cruz to submit the promised document and jurisprudence, and for his failure to satisfy the requirements or conditions under Rule 138A of the Rules of Court, his appearance was denied. Petitioner reiterated that the basis of his appearance was not Rule 138-A, but Section 34 of Rule 138. He contended that the two Rules were distinct and are applicable to different circumstances, but the respondent judge denied the same, still invoking Rule 138-A From the clear language of this provision of the Rules, it will have to be conceded that the contention of the petitioner has merit. It recognizes the right of an individual to represent himself in any case to which he is a party. The Rules state that a party may conduct his litigation personally or with the aid of an attorney, and that his appearance must either be personal or by a duly authorized member of the Bar. The individual litigant may personally do everything in the course of proceedings from commencement to the termination of the litigation. Considering that a party personally conducting his litigation is restricted to the same rules of evidence and procedure as those qualified to practice law, petitioner, not being a lawyer himself, runs the risk of falling into the snares and hazards of his own ignorance. Therefore, Cruz as plaintiff, at his own instance, can personally conduct the litigation of Civil Case No. 01-0410. He would then be acting not as a counsel or lawyer, but as a party exercising his right to represent himself. The trial court must have been misled by the fact that the petitioner is a law student and must, therefore, be subject to the conditions of the Law Student Practice Rule. It erred in applying Rule 138-A, when the basis of the petitioners claim is Section 34 of Rule 138. The former rule provides for conditions when a law student may appear in courts, while the latter rule allows the appearance of a non-lawyer as a party representing himself. The conclusion of the trial court that Rule 138-A superseded Rule 138 by virtue of Circular No. 19 is misplaced. The Court never intended to repeal Rule 138 when it released the guidelines for limited law student practice. In fact, it was intended as an

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addendum to the instances when a non-lawyer may appear in courts and was incorporated to the Rules of Court through Rule 138-A.

PAAR V. BORROMEO TeofiloPaar is charge in Manila with treason before the People's Court, and prayed that he be assisted in his defense by Andres R. Camasura who is not a member of the bar. “But in provinces where duly authorized members of the bar are not available, the court may, in its discretion, admit or assign a person, resident in the province and of good repute for probity and ability, to aid the defendant in his defense, although the person so admitted or assigned be not a duly authorized member of the Bar.” It is clear from these provisions that in Manila where there are many members of the bar, defendants in the People's Court may be assisted only by members of the bar. A layman is permitted by the Supreme Court to appear for another only in the municipal or metropolitan trial courts. Accordingly, he cannot, even in a single occasion, represent another in any other court.

4. Under Rule 138, Section 33 of the Rules of Court: Section 33.Standing in court of person authorized to appear for Government. — Any official or other person appointed or designated in accordance with law to appear for the Government of the Philippines shall have all the rights of a duly authorized member of the bar to appear in any case in which said government has an interest direct or indirect.

PAFLU V. BINALBAGAN ISABELA SUGAR COMPANY May a non-lawyer, for a example a union representative as permitted by the rules, who appeared for his organization or any of its member, recover attorney's fees for such legal services rendered? The permission for a non-member of the bar to represent or appear or defend in the said court on behalf of a party-litigant does not by itself entitle the representative to compensation for such representation. For Section 24, Rule 138, of the Rules of Court, providing —

Enrique Entila and Victorino Tenezas or with PAFLU, and he cannot, therefore, recover attorney's fees. Certainly public policy demands that legal work in representation of parties litigant should be entrusted only to those possessing tested qualifications and who are sworn, to observe the rules and the ethics of the profession, as well as being subject to judicial disciplinary control for the protection of courts, clients and the public. On the present issue, the rule in American jurisdictions is persuasive. There, it is stated: But in practically all jurisdictions statutes have now been enacted prohibiting persons not licensed or admitted to the bar from practising law, and under statutes of this kind, the great weight of authority is to the effect that compensation for legal services cannot be recovered by one who has not been admitted to practice before the court or in the jurisdiction the services were rendered. No one is entitled to recover compensation for services as an attorney at law unless he has been duly admitted to practice ... and is an attorney in good standing at the time. The reasons are that the ethics of the legal profession should not be violated; that acting as an attorney with authority constitutes contempt of court, which is punishable by fine or imprisonment or both, and the law will not assist a person to reap the fruits or benefit of an act or an act done in violation of law; 9 and that if were to be allowed to non-lawyers, it would leave the public in hopeless confusion as to whom to consult in case of necessity and also leave the bar in a chaotic condition, aside from the fact that non-lawyers are not amenable to disciplinary measures. And the general rule above-stated (referring to nonrecovery of attorney's fees by non-lawyers) cannot be circumvented when the services were purely legal, by seeking to recover as an "agent" and not as an attorney. KANLAON CONSTRUCTION V. NLRC Private respondents filed separate complaints against petitioner claiming that the latter paid them wages below the minimum and sought payment of their salary differentials and thirteenth-month pay. Engineers Estacio and Dulatre were named co-respondents. Engineer Estacio admitted petitioner's liability to private respondents and agreed to pay their wage differentials and thirteenth-month pay. Petitioner alleges that the decisions of the labor arbiters and respondent Commission are void for the reason that Engineers Estacio and Dulatre and Atty. Abundiente had no authority to appear and represent petitioner at the hearings before the arbiters and on appeal to respondent Commission.

Sec. 24. Compensation of attorney's agreement as to fees. — An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services, ...

The general rule is that only lawyers are allowed to appear before the labor arbiter and respondent Commission in cases before them.

imports the existence of an attorney-client relationship as a condition to the recovery of attorney's fees.Such a relationship cannot exist unless the client's representative in court be a lawyer. Since respondent Muning is not one, he cannot establish an attorney-client relationship with

A non-lawyer may appear before the labor arbiters and the NLRC only if: (a) he represents himself as a party to the case; (b) he represents an organization or its members, with written authorization from them: or (c) he is a duly-accredited member of any legal aid office duly recognized by the Department of Justice or the

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Integrated Bar of the Philippines in cases referred to by the latter. Engineers Estacio and Dulatre were not lawyers. Neither were they duly-accredited members of a legal aid office. Their appearance before the labor arbiters in their capacity as parties to the cases was authorized under the first exception to the rule. However, their appearance on behalf of petitioner required written proof of authorization. It was incumbent upon the arbiters to ascertain this authority especially since both engineers were named co-respondents in the cases before the arbiters. Absent this authority, whatever statements and declarations Engineer Estacio made before the arbiters could not bind petitioner. The appearance of Atty. Arthur Abundiente in the cases appealed to respondent Commission did not cure Engineer Estacio's representation. Atty. Abundiente, in the first place, had no authority to appear before the respondent Commission.

6. A person representing a land claimant in cadastral court. Section 9 of Act No. 2259 Sec. 9. Any person claiming any interest in any part of the lands, whether named in the notice or not, shall appear before the Court by himself, or by some person in his behalf and shall file an answer on or before the return day or within such further time as may be allowed by the Court. To summarize, the following are allowed limited representation on behalf of another: 1.

In case of law student practice as permitted by Rule 138-A of the Rules of Court.

2.

Those provided under Section 34 of Rule 138 of the Rules of Court

3.

Under Section 7 of Rule 116 of the Rules of Court, in a criminal proceeding before a municipal trial court in a locality where a duly licensed member of the bar is not available, a municipal trial court may, in its discretion, admit or assign a person, resident in the province and of good repute for probity and ability, to defend the accused, although the person so assigned be not a duly authorized member of the Bar. Again, it follows, therefore, that in a place where a duly licensed member of the Bar is available, the municipal trial court may not admit or assign a layman to defend the accused.

4.

5.

In case of those authorized to represent the government. Any person appointed or designated in accordance with law to appear for the Philippine government or any of its officials shall have all the rights of a duly authorized member of the bar to appear in any case in which the government has an interest, or in which such official is charged in his official capacity. Under the Labor Code, a union representative may appear for his organization or any of its members before the NLRC, Labor Arbiter or Arbitrator; a non-lawyer may appear for himself, if he represents himself as party to the case; a non lawyer who is a dulyaccredited member of any legal aid office duly

recognized by the Department of Justice or the Integrated Bar of the Philippines in cases referred thereto by the latter. 6.

A person representing a land claimant in cadastral court.

VARGAS AND PANES V. IGNES, ET AL. Do respondents have valid authority to appear as counsels of KWD? We find that Attys. Nadua, Viajar, Jr. and Mann had no valid authority to appear as collaborating counsels of KWD in SCA Case No. 50-24 and Civil Case No. 1799. Nothing in the records shows that Atty. Nadua was engaged by KWD as collaborating counsel. While the 4th Whereas Clause of Resolution No. 009 partly states that he and Atty. Ignes “presently stand as KWD legal counsels,” there is no proof that the OGCC and COA approved Atty. Nadua’s engagement as legal counsel or collaborating counsel. Insofar as Attys. Viajar, Jr. and Mann are concerned, their appointment as collaborating counsels of KWD under Resolution No. 009 has no approval from the OGCC and COA. Attys. Nadua, Viajar, Jr. and Mann are in the same situation as the private counsel of Phividec Industrial Authority in Phividec. In that case, we also ruled that said private counsel of Phividec Industrial Authority, a GOCC, had no authority to file the expropriation case in Phividec’s behalf considering that the requirements set by Memorandum Circular No. 9 were not complied with. Thus, Resolution No. 009 did not grant authority to Attys. Nadua, Viajar, Jr. and Mann to act as collaborating counsels of KWD. That Atty. Ignes was not notified of the pre-termination of his own retainershipcontract cannot validate an inexistent authority of Attys. Nadua, Viajar, Jr. and Mann as collaborating counsels. In the case of Atty. Ignes, he also appeared as counsel of KWD without authority, after his authority as its counsel had expired. True, the OGCC and COA approved his retainership contract for one (1) year effective April 17, 2006. But even if we assume as true that he was not notified of the pre-termination of his contract, the records still disprove his claim that he stopped representing KWD after April 17, 2007. Atty. Ignes offered no rebuttal to the verified manifestation of complainants filed with the IBP on March 10, 2008. Attached therein was the transcript of stenographic notes in Civil Case No. 1799 taken on January 28, 2008 when Atty. Ignes argued the extremely urgent motion for the immediate return of the facilities of the KWD to the KWD Arellano Office. The RTC was compelled to ask him why he seeks the return of KWD properties if he filed the motion as counsel of Ms. Gomba. When the RTC noted that KWD does not appear to be a party to the motion, Atty. Ignes said that KWD is represented by Ms. Gomba per the caption of the case. As we see it, Atty. Ignes portrayed that his appearance on January 28, 2008 was merely as counsel of Ms. Gomba. He indicted himself, however, when he said that Ms. Gomba represents KWD per the case title. In fact, the extremely urgent motion sought the return of the facilities of KWD to its Arellano Office. Clearly, Atty. Ignes filed and argued a motion with the interest of KWD in mind. The notice of appeal in Civil Case No. 1799 further validates that Atty. Ignes still appeared as counsel of KWD after his authority as counsel had

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expired. This fact was not lost on the RTC in denying due course to the notice of appeal. Consequently, for respondents’ willful appearance as counsels of KWD without authority to do so, there is a valid ground to impose disciplinary action against them. Under Section 27, Rule 138 of the Rules of Court, a member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as an attorney for a party to a case without authority to do so. Disbarment, however, is the most severe form of disciplinary sanction, and, as such, the power to disbar must always be exercised with great caution, and should be imposed only for the most imperative reasons and in clear cases of misconduct affecting the standing and moral character of the lawyer as an officer of the court and member of the bar. Accordingly, disbarment should not be decreed where any punishment less severe such as a reprimand, suspension or fine, would accomplish the end desired. InSantayana,we imposed a fine of P5,000 on the respondent for willfully appearing as an attorney for a party to a case without authority to do so. The respondent therein also appeared as private counsel of the National Electrification Administration, a GOCC, without any approval from the OGCC and COA. SPOUSES AGBULOS V. GUTIERREZ The records reveal that on December 15, 2003, respondent Elena G. Garcia wrote a letter to Judge Arturo M. Bernardo, Acting Judge of RTC Gapan, Branch 87, stating that they were surprised to receive a communication from the court informing them that their notice of appeal was ready for disposition. She also stated in the letter that there was no formal agreement with Atty. Magbitang as to whether they would pursue an appeal with the CA, because one of the plaintiffs was still in America. Whether or not the CA erred in not dismissing the appeal despite the undisputed fact that Atty. Magbitang filed the notice of appeal without respondents’ knowledge and consent. A lawyer who represents a client before the trial court is presumed to represent such client before the appellate court. Section 22 of Rule 138 creates this presumption, thus: SEC. 22. Attorney who appears in lower court presumed to represent client on appeal. — An attorney who appears de parte in a case before a lower court shall be presumed to continue representing his client on appeal, unless he files a formal petition withdrawing his appearance in the appellate court. A reading of respondent Elena Garcia’s letter to the RTC would show that she did not actually withdraw Atty. Magbitang’s authority to represent respondents in the case. The letter merely stated that there was, as yet, no agreement that they would pursue an appeal. In any case, an unauthorized appearance of an attorney may be ratified by the client either expressly or impliedly. Ratification retroacts to the date of the

lawyer’s first appearance and validates the action taken by him.Implied ratification may take various forms, such as by silence or acquiescence, or by acceptance and retention of benefits flowing therefrom. Respondents’ silence or lack of remonstration when the case was finally elevated to the CA means that they have acquiesced to the filing of the appeal. Moreover, a lawyer is mandated to “serve his client with competence and diligence.”Consequently, a lawyer is entreated not to neglect a legal matter entrusted to him; otherwise, his negligence in connection therewith shall render him liable.In light of such mandate, Atty. Magbitang’s act of filing the notice of appeal without waiting for her clients to direct him to do so was understandable, if not commendable.

CATU v. RELLOSA Complainant WilfredoCatu is a co-owner of a lot and the building located at Malate. His mother and brother, Regina Catu and Antonio Catu, contested the possession of Elizabeth C. Diaz-Catu and Antonio Pastor of one of the units in the building. The latter ignored demands for them to vacate the premises. Thus, a complaint was initiated against them in the LupongTagapamayapa where the parties reside. Respondent, as punong barangay summoned the parties to conciliation meetings. When the parties failed to arrive at an amicable settlement, respondent issued a certification for the filing of the appropriate action in court. Thereafter, Regina and Antonio filed a complaint for ejectment against Elizabeth and Pastor. Respondent entered his appearance as counsel for the defendants in that case. Because of this, complainant filed the instant administrative complaint, claiming that respondent committed an act of impropriety as a lawyer and as a public officer when he stood as counsel for the defendants despite the fact that he presided over the conciliation proceedings between the litigants as punong barangay. Section 7(b)(2) of RA 6713 prohibits public officials and employees, during their incumbency, from engaging in the private practice of their profession “unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions.” This is the general law which applies to all public officials and employees. For elective local government officials, Section 90 of RA 7160governs: SEC. 90. Practice of Profession. – (a) All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives. (b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours: Provided, That sanggunian members who are members of the Bar shall not: (1) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party;

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(2) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office; (3) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and (4) Use property and personnel of the Government except when the sanggunian member concerned is defending the interest of the Government. (c) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency: Provided, That the officials concerned do not derive monetary compensation therefrom. This is a special provision that applies specifically to the practice of profession by elective local officials. As a special law with a definite scope (that is, the practice of profession by elective local officials), it constitutes an exception to Section 7(b)(2) of RA 6713, the general law on engaging in the private practice of profession by public officials and employees. Under RA 7160, elective local officials of provinces, cities, municipalities and barangays are the following: the governor, the vice governor and members of thesangguniangpanlalawigan for provinces; the city mayor, the city vice mayor and the members of the sangguniangpanlungsod for cities; the municipal mayor, the municipal vice mayor and the members of the sangguniangbayan for municipalities and the punong barangay, the members of the sangguniang barangay and the members of thesangguniangkabataan for barangays.

the corporation. Rada accepted the appointment and discharged his duties as administrator. Indubitably, therefore, Rada has violated the civil service rule prohibiting government employees from engaging directly in a private business, vocation or profession or being connected with any commercial, credit, agricultural or industrial undertaking without a written permission from the head of the Department. But, indubitably, also, his private business connection has not resulted in any prejudice to the Government service. Thus, his violation of the rule — the lack of prior permission is a technical one, and he should be meted no more than the minimum imposable penalty, which is REPRIMAND. The duties of messenger Rada are generally ministerial which do not require that his entire day of 24 hours be at the disposal of the Government. Such being his situation, it would be to stifle his willingness to apply himself to a productive endeavor to augment his income, and to award a premium for slothfulness if he were to be banned from engaging in or being connected with a private undertaking outside of office hours and without foreseeable detriment to the Government service. His connection with Avesco Marketing Corporation need not be terminated, but he must secure a written permission from the Executive Judge of the Court of First Instance of Camarines Norte, who is hereby authorized to grant or revoke such permission, under such terms and conditions as will safeguard the best interests of the service, in general, and the court, in particular.

ZETA v. MALINAO Of these elective local officials, governors, city mayors and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives. This is because they are required to render full time service. They should therefore devote all their time and attention to the performance of their official duties. Accordingly, as punong barangay, respondent was not forbidden to practice his profession. However, he should have procured prior permission or authorization from the head of his Department, as required by civil service regulations

Felicisimo Malinao: court interpreter CFI Catbalogan, Samar “ILLEGALLY APPEARING IN COURT. — MR. Malinao has been appearing in the municipal court of this town for parties like attorney when he is not an attorney. Reliable information also says he has been appearing in the municipal courts of Daram, Zumarraga, Talalora and even Sta. Rita. He is not authorized to do so we believe. He makes it his means of livelihood as he collects fees from his clients. He competes with attorneys but does not pay anything. We believe that his doing so should be stopped for a good government. These facts can be checked with records of those municipal courts.”

RAMOS v. RADA Moises Rada: messenger in the CFI of Camarines Norte Charge: violation of Section 12 of Civil Service Rule XVIII, which provides as follows: Sec. 12. No officer or employee shall engage directly in any private business, vocation, or profession or be connected with any commercial, credit, agricultural or industrial undertaking without a written permission from the head of Department: Provided, That this prohibition will be absolute in the case of those officers and employees whose duties and responsibilities require that their entire time be at the disposal of the Government. Rada receives a monthly salary of P267.75. He was extended an appointment by the Avesco Marketing Corporation to manage and supervise real properties situated in CamarinesNorte which were foreclosed by

The defense of respondent that "his participation (sic) for defendants' cause was gratuitous as they could not engage the services of counsel by reason of poverty and the absence of one in the locality" cannot, even if true, carry the day for him, considering that in appearing as counsel in court, he did so without permission from his superiors and, worse, he falsified his time record of service to conceal his absence from his office on the dates in question. Indeed, the number of times that respondent acted as counsel under the above circumstances would indicate that he was doing it as a regular practice obviously for considerations other than pure love of justice. In the premises, it is quite obvious that the offense committed by respondent is grave, hence it warrants a more drastic sanction than that of reprimand recommended by Judge Zosa. We find no alternative than to separate him from the service, with the admonition that he desist from appearing in any court or investigative body wherein only members of the bar are allowed to practice.

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WHEREFORE, respondent FelicisimoMalinao is hereby ordered dismissed from his position as

interpreter in the Court of First Instance, CFI, Zumarraga, Western Samar with prejudice to reemployment in the judicial branch of the government.

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