DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS
De La Salle University College of Law
Reviewer in Legal Ethics Source Book: Legal and Judicial Ethics Dennis B. Funa 2010 Ethics Committee: Alpha Ampong Oily Haulo Danilo Rico II This is the Intellectual Property of the De La Salle College of Law- 2010 Legal Ethics Committee. Unathourized use and reproduction of this material is prohibited.
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS Code of Professional Responsibility Legal Ethics – That branch of moral science which treats of the duties that an attorney owes to the court, to his clients, to his colleagues in the profession and to the public. (Justice Malcolm) June 21, 1988 - Date of promulgation and adoption of CPR. SOURCES OF CPR: 1. Canons of Professional Ethics (CPE) was first adopted prior to CPR but still it continues to be the SOURCE OF KNOWLEDGE and understanding of legal ethics. 2. Supreme Court decisions on the discipline of lawyers form the basis of legal ethics. FOUR DUTIES OF A LAWYER: 1. The lawyer and the client. 2. The lawyer and the courts. 3. The lawyer and legal profession. 4. The lawyer and society. CANON 1 - A LAWYER SHALL: UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND FOR LEGAL PROCESSES. All lawyers are sworn constitutionalists. As protectors of the Constitution, lawyers are expected to be life- long students of the Constitution. They are expected to know, understand and upheld the Constitution. The Lawyer’s Oath – is a source of obligations and its violation is a ground for suspension, disbarment. And other disciplinary proceedings. RULE OF THE LAW – sometimes called the “supremacy of the law”, provides that decisions should be made by the application of known legal principles or laws without the intervention of discretion in their application (Black’s Law Dictionary). The phrase to promote respect for law and for legal processes means it is the duty of a lawyer to uphold the “Rule of Law”. Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
Duty to Act with Honesty, Morality and Lawful Conduct - Any of the three would be sufficient ground to file disciplinary proceedings against a lawyer. The dishonesty, gross immorality and violation of a law need not to be committed in relation to his professional duties; the lawyer may be sanctioned for acts committed in his private affairs. Moral Turpitude defined: - “as everything which is done contrary to justice, modesty or good morals.” Exceptions: Conviction for illegal recruitment and attempt to evade the payment of taxes due to the government while wrong and unlawful, does not involve moral turpitude. Engaging in premarital sexual relations with complainant and promises to marry suggests a doubtful moral character on his part but the same does not constitute grossly immoral conduct. (sayanaman! ayos!) Grossly Immoral conduct defined: - “it is so corrupt as to constitute criminal act or so unprincipled as to be reprehensible to a high degree or committed under such scandalous or revolting circumstances as to shock the common sense of decency.” Ex. of grossly immoral conduct: a. Forging a special power of attorney to effect a false real estate mortgage and collecting the loan proceedings from the mortgage. b. Taking advantage of his position as chairman of college of medicine to engage to have a carnal knowledge with a medicine student by threatening her. c. Married lawyer engaging in marital infidelity. ** sexual relations outside marriage is considered disgraceful and immoral as it manifests deliberate disregard of the sanctity of marriage and the marital vows protected by our Constitution and affirmed by laws. Gross immorality need not to be scandalous, punishable by law, neither it should be related to professional duties not there is lawyer-client relationship
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS PRIVATE AND PROFESSIONAL LIFE: There is no distinction as to whether the transgression is committed in the lawyer’s professional capacity or in his private life or in his private transactions. This is because a lawyer may not divide his personality as to be an attorney at one time and a mere citizen at another, and his private life may reflect unfavorably upon the good name and prestige of the profession and the courts. Unlawful Conduct defined: Includes violation of the statutory prohibition on a gov’t employee to engage in private practice of his profession unless authorized by law. GENERAL RULE ON LAWYER’S FINANCIAL DEBT: A lawyer may not be suspended or disbarred, and the court may not ordinarily assume jurisdiction to discipline him, for misconduct in his nonprofessional or private capacity. REASON: poverty is not a crime; if all lawyers will be disbarred bec. of non-paying of debt, all lawyers will all be in the jail bec. not all are rich. BUT ISSUANCE OF WORTHLESS CHECKS to settle financial obligations is gross misconduct in view of its DELETERIOUS EFFECTS TO THE PUBLIC INTERESTS AND PUBLIC ORDER.
Gross misconduct defined: - Is any inexcusable, shameful or flagrant unlawful conduct on the part of the person concerned in the administration of justice which is prejudicial to the rights of the parties or to right determination of the cause. - It is generally motivated by premeditated, obstinate or intentional purpose, but doesn’t necessarily imply corruption or criminal intent. Ex. of gross misconduct in private capacity: a. Firing a gun at the driver of another vehicle following a traffic altercation in a highway. b. Entering into a contract with complainant representing to have rights over the property to transfer it to complainant’s name but in truth he has not acquired such rights. c. A lawyer engaged in lending business which lends to a customer through a check but deceiving the latter to a price in which they didn’t agree then filing complaints against the customer for falsified checks.
Ex. of misconduct in the practice of profession: a. Compromising into a settlement of a client’s litigation without a special authority and without the consent and approval of the client and failing to turn over the money of the agreement to the client. b. Displaying his revolver to intimidate a client to sign a pleading. c. Assisting a client in modus operandi wherein a client would threaten a person for tax evasion. AQUITTAL IN CRIMINAL CASE NOT A BAR IN DISBARMENT PROCEEDINGS because: a. The standards of legal profession are not satisfied by conduct which merely enables one to escapes the penalties of criminal law. b. The court in disbarment proceedings is acting in an entirely different capacity from that which courts assume in trying criminal case. c. Administrative cases of lawyers belong to class of their own. They are distinct from and may proceed independently of civil and criminal cases. Rule 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. Ex. of activities aimed at the defiance of the law: a. Advising his client to execute another deed of absolute sale antedated 1979 to evade payment of capital gains taxes. b. Repeatedly disobeying orders of the Security and Exchange Commission hearing panel to appeal in its hearings and repeatedly failing to substantiate his excuse for non-appearance. Rule 1.03 - A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man's cause. Two duties: 1. Duty against barratry - Encouraging suits or legal actions must always be with noble intent to pursue or protect a right. 2. Duty not to delay any man’s cause - Must not hider a person in his pursuit of protection or right. Barratry – the offense of frequently exciting or stirring up quarrels and suits, either at law or otherwise. The person who engaged in barratry is a barretor or barrator.
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS Maintenance – is the intermeddling uninterested party to encourage lawsuit.
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Rule 1.04 - A lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement. Duty to promote fair and amicable settlement: Compromise and settlement of cases is encouraged: The law does not limit compromise to cases about to be filed or filed, it can be effected even after final judgment as authorized by the Civil Code. NATURE OF COMPROMISE AGREEMENT: 1. A party must give up some of his rights that he has, in consideration of the same act on the part of the other side. 2. Lawyers need written special authority to compromise their client’s litigation or receive anything in the discharge of a client’s claim or full amount in cash. 3. A compromise agreement signed by a lawyer in behalf of a party to the agreement without authorization of the latter is not void but unenforceable. 4. An agreement between a lawyer and his client that forbids the client from entering a settlement without the lawyer’s consent is against public policy and not permitted.
CANON 2 - A LAWYER SHALL MAKE HIS LEGAL SERVICES AVAILABLE : A. IN AN EFFICIENT AND CONVENIENT MANNER B. COMPATIBLE WITH THE INDEPENDENCE, INTEGRITY AND EFFECTIVENESS OF THE PROFESSION.
Duty to be an efficient lawyer : The efficiency demanded of a lawyer must not be realized at the expense of the independence, integrity and effectiveness of the profession. To be efficient does not mean the abandonment of one’s integrity in order to achieve a given cause at all cost. The lawyer’s efficiency must not be obtained at the price of compromising the effectiveness of the entire legal profession
Example of professional inefficiency 1. A lawyer who enters his appearance in a case that had become final 1 year and 8 months earlier was severely censured by the court (In re Soriano) 2. The lawyer filed his “Appearance” on the mere oral representation of a layman that the case is till pending without confirming the status of the case Duty to be proficient in English Language Rule 2.01 - A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed. Duty to the Defenseless and the Oppressed General Rule: Lawyer is duty bound to serve these marginalized citizens. The rule mandates all lawyers to accept as clients those who may have found themselves in the fringes of society Rule 2.02 - In such cases, even if the lawyer does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary to safeguard the latter's rights. Duty to give Legal Advice on the Rights if the Defenseless and the Oppressed This rule in the only exception to the general rule that consultation creates a lawyer-client relationship Even if no lawyer-client relationship is created, a lawyer is still duty bound to give legal advice to the defenseless and the oppressed in protection of the latter’s rights Rule 2.03 - A lawyer shall not do or permit to be done any act designed primarily to solicit legal business. Duty to Shun Vulgar Solicitation It is highly unethical for a lawyer to advertise his talents or skill as a merchant advertises his wares. Law is a profession and not a trade. Lawyering is not primarily meant to be a moneymaking venture, and law advocacy Is not a capital that necessarily yields profits.
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS Practice of Law vs. Business 1. A duty of public service 2. A relation as an “officer of the court” to the administration of justice involving thorough sincerity, integrity and reliability 3. A relation to clients in the highest degree of fiduciary 4. A relation to colleagues at the bar characterized by candor, fairness, and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients.
Not allowed advertising 1. A lawyer may not properly publish his brief biographical and informative data in a daily paper, magazine, trade journal or society program 2. A lawyer may not publish his name in a law list in which the conduct, management or contents are calculated or likely to deceive or injure the public or the bar, or to lower dignity or standing of the profession.
Dignified Solicitation Allowed If it is made in a modest and decorous manner, it would bring no injury to the lawyer and to the bar. Thus, the following are allowed: 1. Use of simple signs stating the name or names of the lawyers, the office and residence address and fields of practice 2. Advertisement in legal periodicals bearing the same brief facts 3. Publication in reputable law lists of brief biographical and informative data
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Good Reputation as the Best Advertisement Canon 27 of the Canons of Professional Ethics The most worthy and effective advertisement possible, even for a young lawyer, and especially with is brother lawyers, is the establishment of a wellmerited reputation for professional capacity and fidelity to trust. Must be the outcome of character and conduct Permitted Advertising 1. May include only statement of the: Lawyer’s name; The names of his professional associates; short biography; contact addresses/numbers. 2. The law list must be a reputable law list published primarily for that purpose It cannot be a mere supplemental feature of a paper, magazine, trade journal or periodical which is published principally for other purpose 3. Ordinary simple professional card is permitted: may contain a statement of his name, his law firm name, address, and special branch of law practice. 4. Simple announcement of the opening of a law firm or of changes in the partnership, associates, firm name or office address 5. His name listed in a telephone directory but not under a designation of a special branch of law.
Example of Violations of this rule: Causing the publication of an advertisement in Sunday Tribune which read Marriage “license promptly secured thru our assistance & annoyance of delay or publicity avoided if desired, and marriage arranged to wishes of parties. Consultation on any matter free for the poor. Everything confidential.. Legal Assistance service 12 Escolta, Manila room 105 Tel 2-41-60 Ambulance chasing, defined. One seeking out persons in negligence cases and directing them to an attorney in consideration of a percentage of the recovery A term descriptive of the practice of some attorneys, on hearing of a personal injury which have been caused by negligence or wrongful act of another, of at once seeking out the injured person with a view to securing authority to bring action on account of the injury. Prohibiting professional advocacy to promote his law practice or to solicit clients Canon 26 of the Canons of Professional Ethics Lawyer openly may render professional services before legislative or other bodies regarding proposed legislation and in advocacy of claims before departments of government It is unprofessional for a lawyer so engaged, to conceal his attorneyship, or to employ secret personal solicitation, or to use means other than those addressed to reason and understanding, to influence action. Rule 2.04 - A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant.
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS Duty to Shun Cut-throat Rates Cut throat rates - lowering legal fees to attract paying clients. The rate for legal services that is “customarily prescribed” is generally dictated by market forces.
CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL USE ONLY: TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE INFORMATION OR STATEMENT OF FACTS.
The Duty of honest and dignified pronouncement of legal services: The embellishment and exaggeration of credentials is not only frowned upon. It is sanctionable because there is a certain degree of dignity that must be maintained. Rule 3.01 - A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services. Duty Not to use Fraudulent or misleading pronouncement of qualifications: All communications regarding the lawyer must contain information that is necessary for the client to be informed about the professional competence of a lawyer. This info. would include: 1. Office information – law firm name, and contact numbers. 2. Relevant biographical information 3. Description of the practice but only designations and definitions authorized by the agency. 4. Permitted fee information. Some self- laudation must be limited and others prohibited: Information on scholastic honors, or election in public office may be disseminated. the lawyer may not announce the successful results he has obtained on behalf of his clients or the lawyer’s record in obtaining favorable judgments for the reason that past performance
of the lawyer is not an indication of future performance, and because no lawyer can guarantee the results of any legal action. Testimonials from previous clients are not allowed. Rule 3.02 - In the choice of a firm name, no false, misleading or assumed name shall be used. The continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased.
Duty of Honesty in the Firm name and selection of the Firm Name: 1. Generally, the law firm name is derived from the surnames of the founding members of the law firm. 2. Usually, firm names “identify the more active and/or more senior members or partners in the law firm.” 3. Art. 1825 of the Civil Code prohibits third person from including his name in the firm name under pain of assuming the liability of a partner. 4. A lawyer is not authorized to use a name other than the name inscribed in the Roll of Attorneys in his practice of law. 5. Lawyers cannot practice under a foreign law firm name bec. the foreign law firm is not authorized to practice law in the Philippines and to avoid confusion on part of future clients. Use of a deceased partner’s name: - It is permissible provided that “the firm indicates in all its communications that said partner is deceased.” Reason why it is permitted: An able lawyer without connections will have to make name for himself starting from scratch. Another able lawyer who can join an old firm, can initially ride on the old firm’s reputation established by the deceased partner. Continued use of Retired partner’s name: A retired partner can be in a “of counsel” status and retain his name in the firm name esp. if the firm name has been long- established and wellrecognized and communications about the lawyer’s status clearly indicate that he is retired.
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS Use or Assumed Trade Name is not allowed: A partnership for the practice of law is not a legal entity. It is a mere relationship or association for a particular purpose. It is not a partnership formed for the purpose of carrying on a trade or business or of holding property.” Application of the word “associates” in the firm name: Associates describe those who are employees of the firm. It can be misleading in two situations: 1. Where two lawyers are partners and they share both responsibility and liability; and 2. Where two lawyers practice separately sharing no responsibility and liability. Firm Name for Solo Practitioners: A solo practitioner may not use a firm name which is misleading such as: use of associates or affiliates, or designate himself as senior atty. Where he is the only atty. in the law firm. BUT he may use the term “Law Firm”, which may consists of many lawyers or only a single practitioner. Use of the Term “Of Counsel”: - A counsel assists in certain specialized services rendered by the law firm. The relationship of a counsel with the law firm must be close, personal and regular with frequent and continuing contact, and not that of partner, shareholder, or associate. Rule 3.03 - Where a partner accepts public office, he shall withdrawal from the firm and his name shall be dropped from the firm name unless the law allows him to practice law currently. Public officials that are prohibited to engage in the practice of law: 1. Judges and other officials or employees of the superior court; 2. Officials and employees of the Solicitor general. 3. Gov’t prosecutors; 4. President, Vide- President, Members of the Cabinet, their deputies and assistants; 5. Members of the Constitutional Commissions 6. Ombudsman and his deputies; 7. All governors, city and municipal mayors; 8. Prohibited by special law. Exceptions: Under Sec. 7 of RA 6713/Code of Conduct of Ethical Standards for Public officials and Employees, a
public officer is prohibited to engage in the private practice of their profession unless authorized by the Constitution or law provided that such practice will not conflict or tend to conflict with their official functions. Member of congress who are lawyers may practice law provided they may not “personally appear” as a counsel before any court of justice, or before electoral tribunals, or quasi- judicial and other administrative bodies. Hence, they may retain their names in the law firm names. The same also applies to Members of the Sangguniang who are lawyers. Rule 3.04 - A lawyer shall not pay or give anything of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business. Payment to media for publicity is a callous contempt to commercialize the legal profession bec. it attracts legal business for legal profession is a public service profession. However, the lawyer is not mandated to decline genuine media attention to his advocacies which have generated public interest or the participation of the media is indispensible such as advocacy to expose corruption in the gov’t.
CANON 4 - A LAWYER SHALL PARTICIPATE IN THE DEVELOPMENT OF THE LEGAL SYSTEM BY INITIATING OR SUPPORTING EFFORTS IN LAW REFORM AND IN THE IMPROVEMENT OF THE ADMINISTRATION OF JUSTICE.
Duty to Support the Improvement of the Legal System Lawyers should participate in proposing and supporting legislation and program to improve the legal system, without regard to the general interests or desires of clients or former clients. He should encourage the simplification old laws and the repeal or amendment of laws that are outmoded. Duty of Lawyers to assist the judicial and Bar Council (JBC) - A lawyer may with propriety endorse a candidate for a judicial office and seek like endorsement from other lawyers.
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS - But a lawyer who endorses a judicial candidate or seeks that endorsement from other lawyers should be actuated by a sincere belief in the superior qualifications of the candidate for judicial service and not by personal or selfish motive. - A lawyer believes that the candidate lacks the essential qualifications for the office or believes that the opposing candidate is better qualified, should have the courage and moral stamina to refuse the request for endorsement.
CANON 5 - A LAWYER SHALL a. KEEP ABREAST OF LEGAL DEVELOPMENTS, b. PARTICIPATE IN CONTINUING LEGAL EDUCATION PROGRAMS, c. SUPPORT EFFORTS TO ACHIEVE HIGH STANDARDS IN LAW SCHOOLS AS WELL AS IN THE PRACTICAL TRAINING OF LAW STUDENTS AND d. ASSIST IN DISSEMINATING THE LAW AND JURISPRUDENCE.
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Talks and writing by lawyers for laypersons should caution them not to tempt to solve individual problems upon the basis of the information contained
Relation to Canon 40 of the Canons of Professional Ethics A lawyer may write articles for publications in which he gives information upon the law He could not accept employment from such publication to advice inquiries in respect to their individual rights. Genesis of the MCLE August 22, 2000, the Supreme Court adopted Bar Matter No. 805. On December 01, 2001, the Supreme Court approved the MCLE implementing regulations which paved the way for the full implementation.
Bar Matter 850: Mandatory Continuing Legal Education(See Appendix 6)
Duty to Keep Abreast of Legal Developments A lawyer must not only be guided by the strict standards imposed by the lawyer’s oath, but should likewise espouse legally sound arguments for clients.
Purpose: To ensure that throughout their career, they keep abreast with law and jurisprudence, maintain the ethics of the profession and enhance the standards of law practice.
Example of Violation of Canon 5 1. When the law is so elementary, not to know it or to act as if one does not know it constitutes gross ignorance of the law. 2. The 15 – day period for appealing or for filling a motion for reconsideration cannot be extended. It was the ignorance of the counsel in disregarding this rule.
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 education activities.
There is no law requiring the publication of Supreme Court decisions in the Official Gazette before they can be binding. It is the duty of the lawyer to keep abreast of decisions of the Supreme Court.
Radio and television talk shows; legal columns writers; Guidelines for lawyers who write or speak on legal matters for the consumption of the general public 1. The lawyer should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems
Parties Exempted from the MCLE: those who hold public positions such as senators, ombudsman, and even Incumbent deans, bar reviewers and professors of law who have teaching experience for at least ten (10) years in accredited law schools
CANON 6 - THESE CANONS SHALL APPLY TO LAWYERS IN GOVERNMENT SERVICES IN THE DISCHARGE OF THEIR TASKS.
Duties Apply to Lawyers in government Service General Rule: a lawyer who holds a government office may not be disciplined as a member of the Bar for misconduct in the discharge of his duties as a government official.
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS Exception: If his governmental infraction also constitutes a violation of his oath as a member of the bar. Higher standard of integrity is required from government lawyers than private practitioners This is expected because delinquency of a government lawyer erodes the people’s trust and confidence in the government When a public officer is sanctionable as a public officer and when as a lawyer 1. Violations of RA 6713 ("Code of Conduct and Ethical Standards for Public Officials and Employees.") are not subject to disciplinary action under the Code of Professional Responsibility unless the violations also constitutes infractions of specific provisions of the Code of Professional Responsibility 2. A disbarment case may be filed following a finding of guilt in an administrative investigation by the proper government authority. 3. A disbarment case may be filed against a Register of Deeds who was dismissed by the President of the Philippines for the illegal issuance of TCTs. Rule 6.01 - The primary duty of a lawyer engaged in public prosecution is not to convict but to see that justice is done. The suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action. Duty of a Public Prosecutor to see that Justice is Done The public prosecutor does not side with either party but instead should be guided by what evidence is presented by the contending parties. He should not institute criminal charges when he knows that the charges are not supported by probable cause. He should also make known any evidence that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. Imbler vs. Pachtman The prosecutor is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all He is a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer
Rule 6.02 - A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties. Duty to separate Public Duties from Private Interests A public office is a public trust. The prohibitions are those which may be found under the Anti-Graft and Corrupt Practices Act The “revolving door” between government service and private practice The practice of some lawyers in using government service as a mere “stepping stone” to jobs outside government service may cause some prejudice to the government service as a whole Rule 6.03 - A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service. Duty to Avoid Conflict of Interest After Leaving the government service The word “intervene” is limited to mean only an act of a person who has the power to influence the subject proceedings and which act should not be insubstantial and insignificant. Section 7(b) of RA 6713 prohibits certain transactions and interests during the incumbency of the public official and for a period of one year after his resignation, retirement or separation from the public office. Example of Violation of Rule 6.03 1. An assistant Vice President of a governmentowned and controlled bank who had intervened in the handling of a loan account by writing demand letters to the borrower, subsequently, represent the borrower in a civil action between the government bank and the borrower as a result of the same loan account. Relation to Canon 36 of the Canons of Professional Ethics A lawyer should not accept employment as an advocate in any matter upon the merits which he has previously acted in a judicial capacity.
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS
CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR.
Duty to uphold the integrity and dignity of the Legal Profession; Duty to support the Integrated Bar of the Philippines (IBP) The lawyer must be ever conscious that his conduct, behavior, bearing, language and reputation are projection not only of all the lawyers in the country bur a projection of the legal profession as well. Example of Violation of Canon 7 1. Enticing private individuals to invest their money in an investment scheme which was an activity not authorized by the company’s by-laws Relation to Canon 29 of the Canons of Professional Ethics Lawyer should expose without fear or favor before the proper tribunal corrupt or dishonest conduct in the profession and should accept without hesitation employment against a member of bar who has wronged his clients. Brief History of the Integrated Bar of the Philippines (IBP) 1. Supreme Court created Commission on Bar Integration on October 5, 1970 which was tasked to serve as a common vehicle of the court and the bar in fashioning a blueprint for integration and putting same into actual operation. 2. Republic Act 6397, which become effective September 17, 1971, confirmed the power of the Supreme Court to adopt rules of court to effect the integration of the Philippine Bar. 3. January 9, 1973 the Supreme Court by a percuriam resolution, pursuant to its constitutional mandate ordained the integration of the Bar in accordance with its Rules 139-A, effective January 16, 1973. 4. Within the next succeeding months, the IBP was organized. On February 17, 1973, local chapters all over the country finally formed and elections for chapter officers were held.
Integrated Bar, defined Is a state-organized bar, to which every lawyer must belong, as distinguished from bar associations organized by individual lawyers themselves, membership in which is voluntary. Purpose of the IBP 1. Assist in the administration of justice; 2. Foster and maintain, on the part of its members, high ideals of integrity, learning, professional competence, public service and conduct; 3. Safeguard the professional interests of its members; 4. Cultivate among its members a spirit of cordiality and brotherhood; 5. Provide a forum for the discussion of law, jurisprudence, law reform, pleading, practice and procedure, and the relations of the Bar to the Bench and to the public, and publish information relating thereto; 6. Encourage and foster legal education; 7. Promote a continuing program of legal research in substantive and adjective law, and make reports and recommendations thereon. 8. Enable the Bar to discharge its public responsibility effectively. General Objectives of the IBP 1. To elevate the standards of the legal profession, 2. To improve the administration of justice; and 3. To enable the Bar to discharge its public responsibilities more effectively. Effect of Non-Payment of IBP dues: warrant suspension of membership in the Integrated Bar, and a ground for the removal of the name of the delinquent member from the Roll of Attorneys. Non-political nature of the IBP: No lawyer holding an elective, judicial, quasijudicial, or prosecutory office in the Government or any political subdivision or instrumentality thereof shall be eligible for election of appointment to any position in the Integrated Bar or any Chapter thereof shall be considered ipso facto resigned from his position as of the moment he files his certificate of candidacy for any elective public office or accepts appointment to any judicial, quasi-judicial, or prosecutory office in the Government or any political subdivision or instrumentality thereof.
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS Membership in voluntary bar associations: Lawyers are free to join or establish other voluntary lawyers’ organizations. Lawyers’ organizations may be set-up for specialized practice of law such as Intellectual Property Association of the Philippines All voluntary Bar associations now existing or which may hereafter be formed may co-exist with the Integrated Bar but shall not operate at cross-purposes therewith nor against any policy, act, resolution or decision thereof.
Rule 7.03 - A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.
Rule 7.01 - A lawyer shall be answerable for knowingly making a false statement or suppressing a material fact in connection with his application for admission to the bar.
Examples of Violations of Rule 7.03 1. Vindictiveness is unprofessional and vengeance is grave misconduct The Act of filing multiple complaints against another reflects in a lawyer’s fitness to a member of the profession. Respondent’s tenacity in pursuing several complaints against complainants is trying to exact revenge _______________________________________
Requirements for all applicants for admission to the bar: Every applicant for admission as a member of the bar must be a citizen of the Philippines, at least twenty-one years of age, of good moral character, and resident of the Philippines; and must produce before the Supreme Court satisfactory evidence of good moral character, and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines. Additional requirements for other applicants: studied law for four years, and successfully completed all prescribed courses, in a law school or university, The affidavit of the candidate, accompanied by a certificate from the university or school of law before he began the study of law, he had pursued pre- law and satisfactorily completed in an authorized and recognized university or college, the completion of a four-year high school course, Rule 7.02 - A lawyer shall not support the application for admission to the bar of any person known by him to be unqualified in respect to character, education, or other relevant attribute. Duty to Support only those Qualified to be admitted to the Bar Just as the lawyer himself must be qualified with respect to his character, education and the other requirements, the lawyer must expect every other applicant to be equally qualified.
Duty to be Professional and Dignified Directs all lawyers must behave in a professional and dignified manner before the general public. “Becoming modesty” is a desirable trait for practicing lawyers.
Canon 8 - A LAWYER SHALL CONDUCT HIMSELF WITH COURTESY, FAIRNESS AND CANDOR TOWARDS HIS PROFESSIONAL COLLEAGUES, AND SHALL AVOID HARASSING TACTICS AGAINST OPPOSING COUNSEL.
Duty of Professional Courtesy: Lawyers are duty bound to uphold the dignity of the legal profession. A lawyer must give respect to a fellow lawyer at the same way that he expects to be respected by others. Advising a client to file disbarment case against opposing client is not unethical where the lawyer was compelled in good faith to do so, and it was done with no improper motive, lawyer cannot be found guilty of “instigating” disbarment proceedings against a brother attorney. Rule 8.01 A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper. Duty to be Professional in Language This rule covers not only disrespectful language towards a fellow lawyer, but also covers such language towards a party ligitant. If the language is towards the courts, Canon 11, Rule 11.03 will apply.
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS Excessive language weakens rather than strengthens the persuasive force of legal reasoning. General Rule of Statements in judicial proceedings: Statements made in the course of judicial proceedings are absolutely privileged. Statements made in pleadings, petitions, motions, are absolutely privileged regardless of the defamatory tenor and of the presence of malice, provided that it is relevant to subject of inquiry. So, if it’s not relevant, they may be considered libelous. Offensive remarks in pleadings are not “privilege communication.” This is the exception to the abovestated general rule. This constitutes unprofessional conduct that may subject the lawyer to disciplinary actions, even if the publication is privileged. The rule of absolute privileged communication absolves beforehand the lawyer from civil and criminal liability. But the lawyers nevertheless remain subject to the disciplinary authority of the Court. Offensive or improper utterances are not punishable when they’re made out of impulsiveness or the heat of the moment in the course of an argument; lawyers should be allowed some latitude of remark or comment in the furtherance of their causes. Sanctions for intemperate language: a lawyer may be held liable for contempt or administratively disciplined. He may not be subject to a counterclaim in the case litigated for such language. In case of contemptuous statements in private letters to judges and justices, privacy of communications cannot be invoked. Rule 8.02 - A lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer, however, it is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel. Duty to Refrain from Professional Encroachment: Professional courtesy extends to the respect for the lawyer-client relationship existing between another lawyer and his clients. Should the client manifest his dissatisfaction with his present lawyer, the new lawyer must give only an
objective assessment of the client’s options and must not denigrate the other lawyer’s professional standing in order to obtain for himself the client’s account. Entry of appearance of a second lawyer does not imply the removal of the first lawyer.
CANON 9 - A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY, ASSIST IN THE UNAUTHORIZED PRACTICE OF LAW.
Duty to a lawyer to shun unauthorized practice of Law is founded on public interest and policy. Purpose: to protect the public, the court, the client, and the bar from incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the Court. Effects of unauthorized practice of law: can bring detriment, danger, and damage to private individuals who should be receiving competent and learned legal assistance from lawyers. Practice of Law – refers to any activity, in or out of the court which requires the application of law, legal procedure, knowledge, training and experience. -
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Practice of law is not a natural or constitutional right but a special privilege, highly personal and partakes the nature of public trust. One who has passed the bar examinations but has not yet taken his oath and signed the roll of attorneys is not yet authorized to practice law. Practice of law without authority may be punished for indirect contempt.
SHYSTER – In legal ethics, it is a non- lawyer pretending to be a lawyer. Specialized practice of Law: a lawyer may prefer a particular field of law as his interest as he has developed mastery and expertise in that particular field. A lawyer shall not permit his professional service or his name to be used in aid or collaborate on cases with a person, agency personal or corporate which are not authorized to practice law.
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS Rule 9.01 - A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the bar in good standing. Lawyering is a profession: A lawyer shall not delegate or assign to an unqualified person a lawyer’s delicate job because not all persons are capable of doing a lawyer’s job in every field of law. As a profession, lawyers can demand payment for their services which have certain standard of quality. The lawyer and the non-legal staff: The lawyer should give assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of their client, and should be responsible for their work product because nonlegal staff are not subjected to professional discipline. The Lawyer and the Law Student: A law student can help the lawyer in the fields of lawyer’s work such as examination of a case law and court records, interviewing witnesses, making collection of claims, delivering papers and other similar matters. BUT the student is not permitted to perform the professional functions of a lawyer, such as conducting court trials, giving prof. advice to clients or drawing legal documents from them. A Law Student Practice Rule (Rule 138- A): 1. Conditions for student practice: th He is on his 4 year in law school. Enrolled in a recognized law school’s legal education approved by the SC. 2. Appearance: He shall be under the direct supervision and control of a member of the IBP in all his appearance in court. Exception: law student appears before an inferior court as an agent or a friend of a party where issues and procedure are relatively simple even without supervision of a lawyer. 3. Privileged communications shall also apply to the student. 4. Law student shall comply with the standards of professional conduct governing members of the Bar.
Reasons for the need of a supervising lawyer for a practicing law student: 1. 2.
3.
To ensure no miscarriage of justice. Law school clinic may be able to protect itself from any potential vicarious liability arising from any culpable action of their law students. To ensure consistency with the fundamental principle that no person is allowed to practice without a license.
SELF- REPRESENTATION (SEC. 34 RULE 128): The individual litigant may personally do everything in the course of proceedings from commencement to the termination of the litigation. Danger of self- representation: runs the risk of failing in the legal nuisances because of his ignorance of legal substance and procedures. Self- representation cannot be availed in criminal cases because the right to counsel cannot be waived even though he is the most intelligent man because he does not know how to establish his innocence. A party must choose between selfrepresentation or being a member of the bar. During the course of proceedings, a party should not be allowed to shift from one form of representation to another in order to avoid confusion. Private Practice- involves the exercise of a profession or vocation usually for gain, mainly as attorney by acting in a representative capacity and as counsel by rendering legal advice to others. Rule 9.02 - A lawyer shall not divide or stipulate to divide a fee for legal services with persons not licensed to practice law, except: (a) Where there is a pre-existing agreement with a partner or associate that, upon the latter's death, money shall be paid over a reasonable period of time to his estate or to persons specified in the agreement; or (b) Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; or (c) Where a lawyer or law firm includes non-lawyer employees in a retirement plan even if the plan is based in whole or in part, on a profit sharing agreement.
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS
Practical reasons for the rule/duty to maintain the integrity of the lawyer’s fees: 1. Fees for legal services are the fruits earned from the proper application of the study of law. 2. If fees 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 because non- lawyers are not amenable to disciplinary measures. Canon 34 of CPE: - Prohibits an agreement for the payment to the widow and heirs of a deceased lawyer of a percentage of fees received from the future business of the deceased lawyer’s clients. - No division of fees for legal services is proper except with another lawyer, based upon the division of service or responsibility.
Canon 10 - A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT
Duty of Candor to the Courts: While a lawyer owes fidelity to the cause of his client, it should not be at the expense of truth and the administration of justice Duty to Obey Court Orders: 1. Lawyers should obey court orders and processes; wilful disregard of them can subject lawyers to punishment for contempt and disciplinary sanctions 2. A lawyer has the graver responsibility (than any other profession) to uphold the integrity of the courts and show respect to their processes 3. This duty exists no matter how minor the court order may seem 4. Failure to do so is only partially justified by his attention to his sick relatives 5. Failure to receive court orders is not an excuse when there is negligence 6. On vague or erroneous court orders: Lawyer should carry out the spirit and intent (and just openly defy the court order)
Duty to file pleadings on time: Late filings may be exculpated by fortuitous events or force majeure, but absence of these factors will hold the lawyer liable Relevant illustrations of lawyer’s disrespect to court orders: 1. Lawyer’s attempt to raise issues long since laid to rest by final and executor judgments 2. Deliberately instruction his office clerks not to receive court decisions 3. Res judicata Rule 10.01: A lawyer shall not do any falsehood, nor consent to the doing of any in Court; nor shall he mislead, or allow the Court to be misled by any artifice. Duty of Fidelity to the Courts Just think Atty. Manuel “the awesome one” Zamora ;) 1. Falsehood without intent, causing no material damage, is sanctionable 2. Knowingly making false allegations in pleadings is direct contempt; and this is causing the client to perjure himself (subjecting him to criminal prosecution for perjury) 3. It matters not whether or not the court was misled by lawyer’s submission of false allegations/documents, because there’s that malicious intent already *No need to cite one too many illustrations here as they’re all about doing falsehood to the courts. I’m sure you get it kids. Rule 10.02: A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved. Duty to Give Accurate Quotations and Citations: The Golden Rule (on how to quote court decisions): court decisions must be reproduced, copied or quoted word-for-word and punctuationmark-for-punctuation mark Rationale of the rule: This is because accdg to Art 8, CC, jurisprudence forms part of the law of the land, thus they must be exactly quoted, otherwise they might lose their proper and correct meaning, to the
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS detriment of other courts, lawyers, and the public who may be misled. Reasoned interpretation of a court decision is not deception, it would be mere argument fully within the bounds of earnest debate. But presenting as a findings of fact, making them appear as if they’re facts recognized by the court when in truth they were merely forwarded versions constitutes misrepresentations. Lawyer’s signature on pleadings: it constitutes as a certificate by him that he has read the pleading and that to the best of his knowledge, information and belief, there is good ground to support it Rule 10.03 A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice. Duty of Fidelity to the Rules of Procedures: Note: Rules of Court have the force and effect of law; real spirit and intent should be invoked (remember StatCon lesson- Rules of Court are liberally construed) -
Filing pleadings thru fax machine is not allowed as there arises an uncertainty of determining its genuiness
Filing a Dilatory appeal: filing an appeal to delay the enforcement of a final judgment. Splitting an appeal into several actions is an abuse of processes of court
CANON 11 - A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS.
As an officer of the court, it is his duty to uphold the dignity and authority of the court which he owes fidelity accdg. to the oath he has taken. Respect for the courts guarantees the stability of our democratic institutions which, without respect, would be resting on a very shaky foundation. Canon 11 also speaks respect due to the judicial officers. Thus, lawyers must also extend respect to the clerk of the court.
Illustration of violation of the rule: a. Stating in a radio interview that a judge was ignorant of the law and he is studying mahjong rather than studying law. b. Arguing in motion for reconsideration that the lawyer who filed it was a big name “Claro M. Recto”. c. Pleadings that uses offensive and intemperate language as a means of harassing judges whose decisions unfavorable to them. A. Forms of Disrespect to the Court: 1. Disregard from the court orders is disrespect to the court; examples: a. Failure to file a reply as ordered by the SC is sanctionable. b. Disobeying a TRO issued by the CA. Court orders however erroneous they may be, must be respected especially by lawyers who are by themselves officers of the courts because of the respect and consideration that should be extended to the judicial branch of the gov’t. 2. Harassment of judges is also disrespect to the Court. The filing of baseless and frivolous administrative complaints against judges is a clear harassment to exact vengeance for rendering adverse judgments. A counsel can also be held to account for assisting a client in filing an utterly unmeritorious administrative complaint against a judge because it is a form of harassment and an attempt to unduly influence the course of the appeal. 3. Unexplained failure to appear at scheduled hearing is disrespect and an indirect contempt: A lawyer without any explanation or justification shows disrespect and degrading the administration of justice. The lawyer must apologize for his non- appearance in court. Even if the petition become moot and academic, the counsel must still appear at the hearing. It is indirect contempt bec. of disobedience or resistance to a lawful write, order, judgment or command by the court. B. Remedies in case of a biased and prejudiced judge: The bias and prejudice of a trial judge is a valid reason for voluntary inhibition of the judge under Rule 137, Sec. 1 (par2). Mere suspicion that a
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS judge is partial is not enough, there must be clear and convincing evidence to prove the charge.
Rules on Contempt under Rule 71 of the Rules of Court:
C. Power of Contempt by the Court: a.
b. c.
d.
e. f. g.
h.
i.
The power of contempt should be exercised on the preservative to uphold respect due to it and not on the vindictive principle. Contempt Proceedings are distinct and separate from disciplinary or disbarment cases. Contempt in facie curiae (in the face of the court) is determined by the trial judge and could be summarily punished without hearing. Disrespectful language in a pleading may also be committed indirectly, by annuendo or sarcastically. The disrespect may be committed against the court and the judiciary in general. The disrespect may be committed in a perverted reasoning or argument stated in pleading. Want of intention is not an excuse for the disrespectful language used. The counsel cannot claim that his words did not mean what any reader must have understood them as meaning. The subsequent deletion of the paragraph containing the disrespectful language, made through an amendment, does not erase the fact that is has been made. Thus, it cannot be a defense in a charge of indirect contempt. Lawyers facing direct contempt may not be allowed to retire from practice of law bec. it would negate the power to punish him for contempt.
Differences of Direct and Indirect Contempt: Indirect or constructive contempt: a. The contemnor may be punished only “after the charge in writing has been filed, and an opportunity has been given to the accused to be heard by himself or counsel.” b. It is appealable. Direct contempt: a. The respondent may be summarily adjudged in contempt. b. Only judgments of contempt by MTCs, MCTCs and MeTCs are appealable. Using contemptuous language in pleadings directed against a particular judge but presented in another court or proceeding constitutes indirect contempt. But if said pleading is submitted before the same judge, it would be direct contempt.
A. Any person may be punished for Direct contempt if the person is guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt in the proceedings before the same, including: - disrespect toward the court, - offensive personalities toward others, - or refusal to be sworn or to answer as a witness, - or to subscribe an affidavit or deposition when lawfully required to do so. PENALTY: Contempt committed against: RTC/CA/SC: Fine not exceeding 2,000 pesos or imprisonment not exceeding 10 days or both. Lower court: fine not exceeding or imprisonment not exceeding 1 day or both. B. Any person may be punished for Indirect Contempt in any of the following acts (SEC. 3): a. Misbehavior of an officer of a court in the performance of his duties. b. Disobedience or resistance to a lawful order. c. Any abuse of or any unlawful interference with the proceedings of a court. d. Any improper conduct which tends directly or indirectly to impede, obstruct, or degrade the administration of justice. e. Assuming to be an attorney or an officer of a court and acting as such without authority. f. Failure to obey a subpoena duly served. g. The rescue or attempted rescue of a person or property in custody of an officer by virtue of an order of the court held by him. NOTE: Nothing in the section shall be construed as to prevent the court from issuing process to bring the respondent into court, or from holding him in custody pending such proceedings. How to commenced proceedings: 1. May be initiated by the court against which the contempt was committed by an order or formal charge requiring the respondent to show cause why he should not be punished for contempt. 2. Commenced by a verified petition with supporting particulars and documents to support the petition.
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS Where to File: where the charge for indirect contempt has been committed against a: a. RTC/court of equivalent/higher Court should be charged/filed with such court. b. If in lower court should be filed in RTC
of the contempt power may no longer be in the preservative but already in the vindictive sense. If this happens, the contempt citation would be improper or that punishment should be revised.
Hearing: respondent may be released from custody upon filing of the bond.
Rule 11.04 - A lawyer shall not attribute to a Judge motives not supported by the record or have no materiality to the case.
PENALTY: Contempt committed against: RTC/CA/SC: fine not exceeding 30,000 pesos or imprisonment not exceeding 6 months or both. Lower court: fine not exceeding 5,000 pesos or imprisonment not exceeding 1 month or both.
Duty not to attribute unfounded ill-motives to a judge: It is the right of the lawyer also as a citizen to criticize in properly respectful terms and through legitimate channels the acts if courts and judges. Illustration of violation of the rule:
Rule 11.01 - A lawyer shall appear in court properly attired.
a. An allegation by a counsel that the proceedings before the trial court were “irregular” and that the so called irregularities “show the accused control over the court and court procedure”. b. Stating in pleading: “The Decision of the Court is like a brief for Ayala” and “The court jeopardized its campaign against graft and corruption.”
Proper attire for: Male - Barong Tagalog or suit with tie. Female – appropriate business attire. But generally, the proper attire would be the contemporary business suit. - A lawyer not wearing proper attire in court may be held in contempt of court and ordered to leave the court and return properly attired. Rule 11.02 - A lawyer shall punctually appear at court hearings. Punctuality is demanded by the respect which a lawyer owes to the court, the opposing counsel and to all the parties to the case. It is not an excuse that his tardiness was caused by matters which could reasonably be foreseen or anticipated such as traffic/breakdown of his vehicle. Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts. Illustration of violation of the rule both written and oral language: a. Using the terms “abhorrent nullity”, “legal Monstrosity”, “horrible error” b. Stating in his brief that “Judge Maliwanag is not wearing his brief while in his chamber during office hours.” If the disagreement between the counsel and the judge has degenerated into a personal clash, the use
Rule 11.05 - A lawyer shall submit grievances against a Judge to the proper authorities only. Grievance Mechanism: a. All grievances against judges must be presented before the SC as the disciplining authority over all judges. b. It must be shown beyond doubt that the judgment is unjust as it is contrary to law or is not supported by evidence, and the same was made with conscious and deliberate intent to do an injustice. Elements of inexcusable negligence in rendering an unjust judgment: Judge failed to observe in his performance of his duty, that diligence, prudence, and care which the law is entitled to exact in the rendering of public service. Jurisdiction of the Ombudsman over Judges: The Ombudsman is duty- bound to have all cases against judges and court personnel filed before it referred to the SC for determination of whether an administrative aspect is involved in accordance with Art. VIII Sec. 6 of Constitution. In the meantime that the administrative matter is pending before the SC, the Ombudsman must defer action on the criminal complaint against the judge or court personnel.
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS 3. CANON 12 - A LAWYER SHALL EXERT EVERY EFFORT AND CONSIDER IT HIS DUTY TO ASSIST IN THE SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE.
Duty to Assist in the Speedy and Efficient Administration of Justice: Lawyers should not forget that they are, first and foremost, officers of the court, bound to exert every effort to assist in the speedy and efficient administration of justice. This duty is not only of the lawyer but also of the judge Rule 12.01 A lawyer shall not appear for trial unless he has adequately prepared himself on the law and the facts of his case, the evidence he will adduce and the order of its preference. He should also be ready with the original documents for comparison with the copies. Rule 12.02 A lawyer shall not file multiple actions arising from the same cause. Duty not to Engage in FORUM SHOPPING: Forum Shopping is a malpractice of trifling with the courts and abusing their processes (outside info: Forum shopping is the litigants’ act of getting their legal case heard in the court thought most likely to provide a favourable judgment) Elements of Forum Shopping: 1. Identity of parties or at least such parties as representing the same interests in both actions 2. Identity of the rights asserted and the reliefs prayed for, the relief being founded on same facts 3. The identity of the two preceding particulars, such that any judgment rendered in the other will amount to res judicata in the action under consideration 3 ways to commit forum shopping: 1. Filing of multiple cases based on the same cause of action and with he same prayer (where the ground for dismissal is litis pendentia) 2. Filing multiple cases based on the same cause of action and the same prayer, the previous case having been finally resolved (where the ground for dismissal is res judicata)
Filing multiple cases based on the same cause of action but with different prayers (splitting of causes of action, where the ground for dismissal is also either litis pendentia or res judicata)
Summary dismissal: If the acts of the party or his counsel clearly constitute wilful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. Rule on forum shopping applies only to judicial cases and not to administrative and disbarment cases (well, disbarment actions are administrative proceedings) [Even in the judiciary] the rule requiring a Certificate of Non-Forum Shopping may be relaxed when so warranted Willful intent is required: when there’s no intention on the part of the lawyer to mislead the court, he can’t be sanctioned Literal identity of the parties is not required: It’s sufficient that there is identity of interests represented [Illustration] Thus, there can be forum shopping where a party in one cases is the GSIS and the party in the second cases is the ECC, where the interest of the GSIS was affirmed by the ECC Certificate of Non-Forum Shopping is executed by the party, not the counsel: If executed by the counsel, it’s defective equivalent to a non-compliance with the requirement Rationale: it is the party himself who would be in a position to know whether another case had been filed or not Res judicata distinguished from Forum shopping: a.
Res judicata is what results when a present case filed is barred by a prior final judgment b. Forum shopping requires another pending case Illustration: Filing an action for the annulment if the sale and the recovery of property allegedly inherited from the deceased will not prosper where the same property and the same claim are pending adjudication in a separate proceeding for the settlement of the estate of the deceased
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS Rule12.03 A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so. Duty to File Pleadings Seasonably: 1. The grant of extensions of time to file pleadings is a mere liberality upon the granting authority, so it must not be abused. A lawyer who files a motion for extension does not do so as a matter of right. It’s a mere plea. 2.
3. 4. 5.
An extension of time for filing of briefs will not be allowed except for good and sufficient cause, and only if it’s filed before the expiration of the time sought to be extended Allowance or denial of the motion filed is addressed to the sound discretion of the court Explanation for failure to file pleading seasonably must be acceptable. Lawyers should not presume that the extension that may be granted shall be counted from notice. Thus, lawyers should not wait until their motion for extension is acted upon. They should file their pleadings within the period which they requested in their motion for extension.
Illustration: The excuse that the counsel was suffering from hypertension was not accepted, as the counsel could have informed the court in due time
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this is because a lawyer owes a duty to the court to “assist the court in the expeditious consideration and disposal of pending cases”
Technicalities should not be improperly used to thwart substantial justice. Hence, a party should not invoke defect of from where no prejudice to substantial rights are involved Treble costs can be assessed against dilatory and frivolous appeals and tactics: Frivolous / dilatory appeals: Where the rights of a party have been made crystal clear by a lower court decision, it may also already be clear that any appeal from it is clearly groundless and that the appeal made is only for the purpose of delay. Such a scheme is an attempt to defeat the administration of justice Illustration: 1. Repeatedly resorting to the remedy of certiorari is a dilatory tactic 2. Where a case has already attained finality before the SC and the case was remanded to the trial court, the losing party may not file a new action as a mere subterfuge to frustrate the execution of the judgment. Examples of Misuse of Court Processes: Misuse of a TRO issued by the CA – Applying for TRO where party already knew that the orders of the trial court which were sought to be enjoined had already been implemented
Duty of lawyer hired midstream: Replacement lawyer: Well, he should work double time; a lawyer who accepts a case in midstream is presumed and obliged to acquaint himself with all the antecedent processes and proceedings that have transpired in the record prior to his takeover. As for the replaced lawyer, he must inform the court that at the time his brief was due, he had already been freed from his task of submitting his brief Rule 12.04 A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse Court processes. Duty Against Dilatory moves and Misuse of Court this speaks of duty to expedite litigation
Multiple or repetitious petitions - filing, in behalf of the same petitioners, a second petition for review on certiorari of the same CA decision that had been previously denied with finality. Rule 12.05 A lawyer shall refrain from talking to his witness during a break or recess in the trial, while the witness is still under examination. Duty not to Coach a Witness under Examination:
Witness Preparation (good-allowed): occurs before the testimony; lawyer’s act of advising the client of the intended testimony and the witnesses’ ability to convey the information and advocate the strengths of the testimony; here the lawyer can inform the witness what to expect, how to act properly, and the procedures
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS 2.
It is corollary to the rule that an advocate may not inject personal belief as to the cause into argument to the judge. In other words, it eliminates the opportunity to mix argument and fact.
Prohibition does not apply to a former counsel This does not mean that a lawyer cannot testify as witness. His remedy would be to withdraw from active management of the case.
Witness Coaching (bad-not allowed): done during testimony; counsel obfuscates the truth or instructs the witness to lie. It makes the testimony appear contrived, rehearsed, and unreliable. Rule 12.06 - A lawyer shall not knowingly assist a witness to misrepresent himself or to impersonate another. Duty not to Present a False Witness Dealing with corrupt witnesses: when the judge is convinced that the witness makes false statements, he may immediately order that the witness be prosecuted for perjury. Rule 12.07 A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him. Duty to Respect Witness: Because a witness is not an antagonistic party, so he/she should be respected and treated with politeness and courtesy Rule 12.08 A lawyer shall avoid testifying in behalf of his client, except: (a) on formal matters, such as the mailing, authentication or custody of an instrument, and the like; or (b) on substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel. Duty not to be a Witness and Counsel at the Same Time: If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. The public will be inclined to believe that a lawyer’s testimony is altered to serve the client’s interest. He is an ineffective position or arguing his own credibility. The roles of an advocate and a witness are inconsistent. Rationale of the rule: 1. It’s designed to protect the integrity of the advocate’s professional role by preserving the distinction between advocacy, which is based on reason and subject to objective evaluation, and testimony, which is based on the witness’ moral qualities and is evaluated in terms of individual credibility.
CANON 13 - A LAWYER SHALL: RELY UPON THE MERITS OF HIS CAUSE AND REFRAIN FROM ANY IMPROPRIETY WHICH TENDS: TO INFLUENCE, OR GIVES THE APPEARANCE OF INFLUENCING THE COURT.
Duty not to influence judges: Any inappropriate ex parte communication with the judge is disallowed. A lawyer should not communicate or argue privately with the judge as to the merits of the pending cause and deserves rebuke and denunciation for any device of attempt to gain from judge special personal consideration favor. Rule 13.01 - A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with Judges. Duty of non-fraternization with judges: A lawyer’s treatment of judges must not be with the end in view of cultivating closeness which can be converted later on to seek favors from the judge. Being a former law school classmate, being a neighbor/fraternity brother, both lawyer and the judge must be aware and conscious as to where such friendship must end. When it comes to matters pending in the judicial docket, the lawyer and the judge must keep a professional distance and affinity must be kept respectful. Rule 13.02 - A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party.
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS Duty not to resort to the Bar of Public Opinion during the pendency of a case: However, it should be recognized that certain statements may be generally permitted, such as a statement on the general nature of a claim or defense in a pending case. Illustration of violation of the rule: a. Publication in a newspaper with the title, “Senior prosecutor lambasts Surigao judge for allowing murder to bail out.” Sub- Judice defined: - Refers to matters under or before a judge or court; under judicial consideration. - Part of the law relating to contempt to the court. Basis/purpose of the Sub- Judice rule: The courts must be allowed to deal with the legal issues that are before it free from undue interference and influences by others making public statements about how these issues should be dealt with. It also protects the witnesses because public statements may change relevant facts of what he witnessed. How it is violated? It is violated by public statements that risk prejudging matters or causing prejudice. It includes statements urging the court to reach a particular result in a matter, comments of the strength or weakness of a party’s case or particular issue, or comments on witnesses or evidence in the case. Application: It applies where court proceedings are ongoing, and through all stages of appeal until the matter is completed. It also applies where the court proceedings are merely imminent. The rule applies to lawyers, as well as to the public and public officials including legislators. Penalty: Making public statements in the media regarding a pending case which tends to arouse public opinion for or against a party may also constitute indirect contempt under Sec. 3 (c-d) Rule 71 of the Rules of Court. Exception to the rule: fair and accurate reporting is allowed of the factual content of ongoing judicial proceedings by the media, as long as the report does
not usurp the court’s role by prejudging the case or its legal issues. How does prejudice formed in violation of subjudice rule? If judges and witnesses are exposed to the media materials that are not part of the evidence presented or argued in the trial, judges and the witnesses will be hindered from impartiality and objectivity which cause prejudice. Freedom of expression as well as freedom of the media to report should be limited since these freedoms should not take precedence over the proper administration of justice. Ex. of violation of sub- judice rule: a. public discussion of a prior criminal record which is not relevant to the present charge against him; b. on-screen admissions of guilt by the accused. Open- Justice principle: Refers to the public right to scrutinize and criticize courts and court proceedings. Purpose: to prevent idiosyncrasy or judicial arbitrariness and maintain public confidence in the administration of justice. Also, it has been just as fundamental to a democratic society of freedom of speech. Post- litigation criticisms: It is the duty of a lawyer to criticize and expose the shortcomings and indiscretions of courts and judges by criticizing concluded litigations because then the court’s actuations are thrown open to public consumption and discussion. Illustrations of disrespectful post- litigation criticisms: a. A lawyer describing a ruling as a “absolutely erroneous and constituting an outrage to the rights of the petitioner Mickey Celles and a mockery to popular will.” b. A lawyer stating through a local newspaper, “the only remedy to put an end to so much evil, is to change the members of the SC.” Rule 13.03 - A lawyer shall not brook or invite interference by another branch or agency of the government in the normal course of judicial proceedings.
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS Judicial Independence defined: - It is the doctrine that decisions of the judiciary should be impartial and not subject to influence from the other branches of a gov’t or from private or political interests. Two types of Judicial Independence: 1. Institutional independence – means the judicial branch is independent from the executive and legislative branches. 2. Decisional independence – is the idea that judges should be able to decide cases solely based on the law and the facts without letting the media, politics or other concerns sway their decisions, and without fearing penalty in their careers for their decisions.
CANON 14 – A lawyer shall not refuse his services to the needy.
Rule 14.01 – A lawyer shall not decline to represent a person solely on account of the latter's race, sex. creed or status of life, or because of his own opinion regarding the guilt of said person. Rule 14.02 – A lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de officio or as amicus curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid. Counsel de Oficio(CDO): A lawyer appointed by the Court to counsel an accused. One can be a CDO if he’s a member of the bar in good standing who can competently defend the accused. In localities where no bar member is available: Court may appoint any person, resident of the province and of good repute for ability to defend the accused. General rule: A lawyer can’t decline being appointed as CDO. Exception: a serious and sufficient cause, like the 1) lawyer cannot competently handle the case or 2) there’s conflict of interest. Court’s duty to appoint a CDO is NOT mandatory when: the accused has proceeded with the arraignment and the trial with a his chosen counsel (CDP), but during presentation of evidence, he
appears by himself alone because of the inexcusable absence of his counsel. The court can appoint a CDO during (or in the middle of) the trial: If an accused’s CDP deliberately makes himself incompetent, the Court can appoint a CDO to enable the trial to proceed until CDP finally appears. Reason: because otherwise, the pace of the criminal prosecution will be entirely dictated by the accused to the detriment of the resolution of the case. The need for this appointment arises when an accused is penniless and a lawyer’s services as counsel to the former are necessary to secure the ends of justice and to protect the rights of the party People who may avail of this legal service: A poor accused who’s unable to employ an atty; Only indigents may avail of services of PAO (Note: a CDO is not automatically a PAO lawyer. Remember, CDO may come from private sector) A CDO gets paid but NOT by indigent client; he may get compensation from the Court subject to availability of funds. (Rules of Court, Sec 32, Rule 138) A CDO is not exempt from any liability in case he messes. He’s equally liable as any paid lawyer. Distinguish Counsel de oficio (CDO) from Counsel de parte (CDP): CDO is a court appointed lawyer; CDP is the lawyer of the party’s own choice The right to secure CDP’s services is not absolute: (It’s actually more like a privilege than a right... but whichever, it’s not absolute). Reason: The Court should balance the privilege to retain a counsel of choice against the state and offended party’s equally important right to speedy and adequate justice (so it’s party’s privilege vs. State’s right). The Court can restrict the accused’s option to retain a CDP under the ff. circumstances: When an accused insists on an atty he can’t afford; When he chooses someone who’s not a member of the bar When the personally chosen lawyer declines (for a valid reason) ...and similar others...
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS The right to a CDP is waivable under the ff conditions: Waiver isn’t contrary to law, public order, public policy, morals, or good customs OR prejudicial to rd a 3 person with a right recognized by law Waiver is unequivocally, knowingly, and intelligently made Amicus Curiae: “friend of the court” a person with strong interest on the subject matter of an action. He can be a private person or someone from the government. An amicus curiae becomes a friend of the court when: 1. He files a petition with the court for permission to file a brief, apparently on behalf of a party but actually to suggest a rationale consistent with its own views. His briefs are commonly filed in appeals concerning matters of public interest. 2. Court invites him to help in the disposition of issues submitted to it. Rule 14.03 A lawyer may not refuse to accept representation of an indigent client if: (a) he is not in a position to carry out the work effectively or competently; (b) he labors under a conflict of interest between him and the prospective client or between a present client and the prospective client. Indigent party: one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family; the Court designates one as such upon ex parte application and hearing (to prove that he really is indigent) An indigent party is entitled to/exempt from: Docket and other lawful fees (but they create a lien on the judgment that will be rendered, unless the court provides otherwise) transcripts of stenographic notes. Rule 14.04: A lawyer who accepts the cause of a person unable to pay his professional fees shall observe the same standard of conduct governing his relations with paying clients. __________________________________________ CANON 15 - A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS.
Duty of candor to his client – a lawyer is not barred from commercially dealing with his client but the business transactions must be characterized with utmost honesty and good faith. Illustration of violation of this rule: a. The act requiring his clients to pay 15,980 on the pretext that it was needed for the payment of court fees which were not. Rule 15.01 - A lawyer, in conferring with a prospective client, shall ascertain as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client. A lawyer could determine potential conflict of interest by: - the initial conferment of a prospective client, - facts given to him and - asking the necessary questions regarding the facts and personalities involved in the case. Rule 15.02 - A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client. Rule 15.03 - A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts. Rule on conflict of interests: 1. Prohibits the lawyer from representing new clients whose interests oppose those of a former client in any manner, whether or not they are parties in the same action or in totally unrelated cases. 2. Good faith and honest intention does not negate the prohibition. 3. To be guilty of representing conflict of interests, a counsel of record of one party need not also be of counsel of record of the adverse party. He does not have to publicly hold himself as the counsel of the adverse party, nor make his efforts to advance the adverse party’s conflict of interests of record- although these circumstances are the most obvious and satisfactory proof of the charge. 4. The duration of time that has elapsed is immaterial in determining conflict of interests. So
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS whether the relationship with the client terminated 8yrs before the creation of new client that has adverse of interest with the first client, there still has conflict of interest. 5. Termination of previous engagement is not a ground to disregard the prohibition on conflict of interest because the client’s confidence once reposed cannot be divested by the expiration of the professional employment. 6. The absence of any other lawyer in town is not an excuse to accept cases that has conflict of interest. 7. Conflict of interests is not limited to litigation cases but can also rise from financial dealings. A lawyer is forbidden to do either of two things after severing his relationship with a former client: 1.
2.
He may not do anything injuriously affect his former client in any matter in which he formerly represented him; Nor he may at any time use against his former client knowledge/information acquired by virtue of the previous relationship.
Rationale for the prohibition on conflict of interests: 1. 2.
The relations of atty. and client are founded on principles of public policy, on good taste. To avoid treachery and double- dealing so that clients be encouraged to trust their secrets to their attorneys.
The alternative can be that each party may have to obtain separate representation, with the possibility in some situations of incurring additional cost, complication or even litigation. The lawyer then, acts as intermediary. Forms of intermediation vary from arbitration to mediation where each client’s case presented by the respective client and the lawyer decides the outcome, then to common representation. Rule 15.05 - A lawyer when advising his client, shall give a candid and honest opinion on the merits and probable results of the client's case, neither overstating nor understating the prospects of the case. Scope of the Advice: a. Client is entitled to straight-forward advice expressing lawyer’s honest assessment. b. Purely technical advice can sometime be inadequate unless requested by the client himself. It is proper for a lawyer to refer relevant moral and ethical considerations in giving advice. c. Where consultation with a professional in another field is itself something a competent lawyer, would recommend, the lawyer should make such recommendation ex. family matters with the help of clinical psychology and business matters with the aid of financial specialists. Rule 15.06 - A lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body.
Test to determine if there is conflict of interests: Whether the acceptance of a new relation would prevent the full discharge of the lawyer’s duty of undivided fidelity and loyalty to the client or will it invite suspicion of unfaithfulness or doubledealing in the performance of that duty? - An important criterion is “probability” and not “certainty” of conflict. Rule 15.04 - A lawyer may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in settling disputes. -
A lawyer acts as intermediary in seeking to establish or adjust a relationship between clients on amicable and mutually advantageous basis ex: in helping organize a business in which 2 or more clients are entrepreneurs.
Rule 15.07 - A lawyer shall impress upon his client compliance with the laws and the principles of fairness. Rule 15.08 - A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity.
The objective of this rule is to avoid confusion, both for the benefit of the lawyer and the client. As a rule, a lawyer is not barred from commercially dealing with client but the business transaction must be characterized with utmost honesty and good faith. Business transactions bet. atty. and his client is discouraged by the policy of the law because the
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS lawyer might take advantage of his client’s ignorance using his position.
have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court.
CANON 16 - A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS PROFESSION.
Though a lawyer has a lien over his client’s funds, he should notify his client about it in due time – he should give notice promptly (accdg to this rule, he may notify his client after he satisfies his fees)
Duty to be a Trustee of Client’s Moneys and Properties: Mainly because what client and lawyer have is a fiduciary relationship.
Rule 16.04 A lawyer shall not borrow money from his client unless the client's interest are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client.
Rule 16.01: A lawyer shall account for all money or property collected or received for or from the client. Duty of Accountability – generally derived from law on agency which imposes the duties of separation, accounting, notification and delivery on all agents possessing the principal’s property. A lawyer may not apply any amount he received as partial settlement of a judgment to his professional fees without the concurrence of his client. Failure in this duty is misconduct. (In one case, the lawyer was suspended) Fear of not being paid is no excuse. If done with bad faith and deceit – grave misconduct Failure to remit amounts to client pursuant to an execution – misappropriation; such act gives rise to the presumption that he has appropriated the money for his own use; lawyer can be cited in contempt; Restitution may be ordered in all instances of failure in this duty. The amount/s covered by this rule: Any, not just litigation expenses but also expenses due BIR, Register of Deeds, and others. Mere failure to promptly report to the client his receipt of the money is punishable Rule 16.02 A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him. Rule 16.03 A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also
General Rule: No debtor-creditor relationship between lawyer and client Exception: Lawyer may borrow money from his client only if his client’s interests are fully protected Lawyer may lend money to a client, when in the interest of justice, (during his handling of the case) he has to advance necessary expenses
CANON 17 - A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.
Canon 17 decrees the fiduciary relationship between a client and his lawyer. The fidelity which a lawyer owes to his client does not necessarily mean absolute adherence to the client’s views or activities. Duty of confidentiality; preservation of client’s secrets: The protection given to the client is perpetual and does not cease with the termination of the litigation, nor is it affected by the party’s ceasing to employ the attorney and retaining another, or by any other change of relation between them. It survives the death of the client. Rationale: - to avoid self- incrimination; - to maintain the right to counsel; - Encourages a dynamic and fruitful exchange and flow of information;
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS -
Full disclosure opens the door to the whole spectrum of legal options on the case of the client than limited information;
General rule on transparency in the identity of the client: as a matter of public policy, a lawyer may not invoke the communication privilege and refuse to divulge the name or identity of his client because: The court has the right to know that the client whose privileged information is sought to be protected is flesh and blood. The privilege exists only after the atty-client relationship has been established. Privilege generally pertains to the subject matter of the relationship. Due process require that the opposing party should know his adversary. Exceptions to the general rule: Info relating to the identity of the client may fall within the ambit of the privilege when the client’s name itself has an independent significance, such as disclosure would then reveal client’s confidences. Purchase of the client’s property by the lawyer under Article 1491 of the Civil Code: Under 1491 of the Civil Code, lawyers are prohibited from acquiring either by purchase or assignment the property or rights involved which are the objects of the litigation in which they intervene by virtue of their profession. Even if a fair price was paid for the property if it is object of the litigation, it is void and inexistent pursuant to Art. 1409 of the Civil Code. Hence, constitutes breach of professional ethics and constitutes malpractice. The prohibition on purchase is all embracing to include not only sales to private individuals but also to public or judicial sales.
Rationale of the prohibition: Public policy disallows the transactions in view of the fiduciary relationship involved i.e. the relation of trust and confidence. An atty. may easily take advantage of the credulity and ignorance of his client and unduly enrich himself at the expense of his client. Exception: Where the property is contingent contracts or that it is acquired after the termination
of the case/after judgment means that there is no violation of Par. 5 Art. 1491 of the Civil Code. Regardless of the defense of the lawyer in the acquisition of the property of his client such as the client has no money to pay for the services of the lawyer is still prohibited because there is breach of confidentiality and harassment/influence on part of the lawyer.
CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.
Diligence with that norm of practice expected of men of good intentions (as the practice of law does not require extraordinary diligence) Entry and Authority of Appearance: A lawyer is presumed to be properly authorized to represent any cause in which he appears (and no written power of attorney is required for this authority) Formal entry of appearance is no longer required so an appearance may be made by simply filing a normal motion, plea, or answer. a law firm’s main and branch offices comprise a single law firm death of handling lawyer does not extinguish lawyer-client relationship When relationship is with a law firm, death of the handling lawyer does not terminate lawyer-client relationship between the client and law firm; so the lawyers in the firm, to not be held liable for negligence, should either re-assign the case or withdraw from it. Accountability of a supervising lawyer for an associate lawyer’s misconduct - well, he’ll just be asked to explain. Does the lawyer’s negligence bind his client? General Rule: Yes. XCPN: negligence amounts to deprivation of due process for the client of results to serious injustice Rule 18.01: A lawyer shall not undertake a legal service which he knows or should know that he is not qualified to render. However, he may render such service if, with the consent of his client, he can
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS obtain as collaborating counsel a lawyer who is competent on the matter. Because the legal practice is an expansive and wide field, it can’t be expected that a lawyer specialize in all and in every field of law. If a lawyer engages in a practice of law in which he is not familiar, he will be rendering an inferior service to the detriment of the client and to this professional embarrassment Rule 18.02 A lawyer shall not handle any legal matter without adequate preparation. Lawyer’s unfamiliarity with the principles of law applicable to a client’s legal matters would give rise to disciplinary action. But an erroneous opinion on a difficult question of law wouldn’t mean that a lawyer acted incompetently; the “thoroughness” required is that ordinarily employed by lawyers undertaking similar matters Rule 18.03 A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. Duty not to be negligent! - Because public interest demands. - He can’t just entirely entrust/delegate tasks to his staff, this includes matters pertaining to the resolution of the case - It’s the lawyer’s bounden duty to check, review, and recheck the allegations in their pleadings... the accuracy of statements, down to the last word and punctuation mark.
If the client is bound by his counsel’s acts, with more reason should counsel be bound by his staff’s acts.
Lawyers can be held civilly liable: for negligence in the handling of his client’s case.
Rule 18.04 A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client's request for information. A client is entitled to the fullest disclosure of the what’s, how’s and why’s of the case proceedings. Client must receive: periodic and full updates on the mode and manner that the lawyer is utilizing to defend his interests
CANON 19 - A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF THE LAW.
It is the duty of a lawyer to serve only within the bounds of law, fair and honest and for lawful objectives. He must give a candid and honest opinion on the merits and probable of the client’s case with the end in view of promoting respect for the law and for legal processes, and counsel or maintain such actions or proceedings which appear to him as just and such defenses only as he believes to be honestly debatable under the law. Rationale of the canon: a lawyer’s duty is not to his client but in the administration of justice; to that end, his client’s success is wholly subordinate; and his conduct ought to and must always be thoroughly observant of law and ethics. It is improper for a lawyer to assert in argument his personal belief in his client’s innocence in the justice of his cause. The office of the attorney does not permit, much less does not demand of him for any client, violation of law or any manner of fraud or chicanery, he must obey his own conscience and not that of his client. Rule 19.01 - A lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding. Rule 19.02 - A lawyer who has received information that his client has, in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he shall terminate the relationship with such client in accordance with the Rules of Court.
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS Duty not to condone a client’s fraud: A lawyer may not continue assisting a client in the conduct that that lawyer originally supposes is legally proper but then discovers is criminal and fraudulent. He should: 1. 2. 3.
Endeavour to rectify it by advising his client. Withdrawal from the representation if necessary or if the client refused to rectify it. Has discretion to inform promptly the injured person or his counsel, so that they may take appropriate steps.
Definition of Fraud – a generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick and cunning unfair way by which another is cheated. Rule 19.03 - A lawyer shall not allow his client to dictate the procedure in handling the case. Lawyers have the exclusive management of the procedural aspect of the litigation including the enforcement of the rights and remedies of their client. Even over the objection of the client, a lawyer can present or refuse to present certain witnesses. Mistakes of counsel as to the relevancy or irrelevancy of certain evidence or mistakes in the proper defense, in the introduction of certain evidence, or in argumentation are, among all mistakes and procedure and they bind the clients.
CANON 20 - A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE FEES.
Rule 20.01 A lawyer shall be guided by the following factors in determining his fees: (a) the time spent and the extent of the service rendered or required; (b) the novelty and difficulty of the questions involved; (c) The importance of the subject matter; (d) The skill demanded;
(e) The probability of losing other employment as a result of acceptance of the proffered case; (f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs; (g) The amount involved in the controversy and the benefits resulting to the client from the service; (h) The contingency or certainty of compensation; (i) The character of the employment, whether occasional or established; and (j) The professional standing of the lawyer. The amount of atty’s fees due is that stipulated in the retainer agreement, absence such, amount would be fixed on the basis of the quantum merit (reasonable worth) of the atty’s services Factors to be considered in fixing atty’s compensation: Importance of the subject matter of the controversy Extent of services rendered Professional standing of the lawyer Court isn’t bound by opinion of a lawyer as to proper compensation; Court may disregard it and base its conclusion on its own professional knowledge No form is required with regard to agreement on fees but it’s preferred if it’s in writing Written agreement on fees is generally binding, but if client is ignorant and uneducated, such written agreement may not be persuasive and the compensation should be made on the basis of quantum merit. Unless expressly stipulated, payment of lawyer’s fees is not gratuitous (as it’s based on the law of contract: I do and you give) A lawyer may require advance payment of his fees, but he shall return the excess. A lawyer may accept property in payment such as ownership interest in an enterprise. Is the imposition of interest in the payment of atty’s fees in a contract allowed? Yes, if it’s reasonable. Otherwise, the court will ignore such agreement (for the court to ignore the agreement, it must be shown that it’s contrary to morality or public policy)
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS A lawyer is entitled to recover litigation expenses when: Defendant’s act or omission has commission has compelled the plaintiff to litigate or to incur expenses to protect his interest; The defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff’s valid, just, and demandable claim In any other case where the court deems it just and equitable that the expenses be recovered
Lawyer’s contingency fee (payment conditional upon success) is an exception to this prohibition.
Lawyer’s acquisition of his client’s property:
SYNDICATED LAWSUITS. It’s a form of champerty where the litigant sells his shares in his lawsuit to investors.
He may not: if the properties are the objects of the litigation in which he intervenes (meaning, “during the pendency of the litigation”); this prohibition includes not only sales to private individuals but also public or judicial sales; this covers not only the purchase but also the assignment of the property He may: if the lawyer acquires it after the termination of the case Rationale (of the prohibition): public policy disallows because of the fiduciary (based on trust and confidence) nature of the lawyer-client relationship; and because by virtue of the lawyer’s office, he may easily take advantage of the credulity and ignorance of his client and unduly enrich himself at the expense of his client. Mere demand for delivery of the litigated property does not cause the transfer of ownership, thus, not a prohibited transaction. CHAMPERTY: “buying into someone else’s lawsuit”, rd it’s the arrangement in which a 3 party (or even the litigation lawyer) supports another’s litigation in exchange for a share of the proceeds, if there are any. If there are none, the party litigant would not have to pay the person or entity which financed the litigation. Any amount advanced would not have to be returned. Champerty is prohibited on the ground of public policy, it violates the fiduciary relationship between the lawyer and his client. It’s also a form of maintenance (intermeddling of an uninterested party, in short, epal). For the party litigant, it’s an issue of litigation financing (when he has no financial means to pursue litigation).
CHAMPERTOUS CONTRACTS: an agreement between a third person and a party litigant or a lawyer and his client wherein the third person with respect to the party litigant or the lawyer with respect to his client, supports the party litigant’s or the client’s litigation in exchange for a share of the proceeds emanating from the litigation, if there are any.
Rule 20.01 A lawyer shall not reveal the confidences or secrets of his client except; (a) When authorized by the client after acquainting him of the consequences of the disclosure; (b) When required by law; (c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action.
There are no fixed rules in the setting of attorney’s fees, that’s why they’re negotiable. There can only be guidelines. Judge’s opinion as to the capacity of the lawyer is not a basis of the right to a lawyer’s fees
Manner of fixing the fees: Hourly fee basis: a lawyer keeps an accurate record of all the time he had spent on the case, indicating the number of minutes spent in every activity relating to the case. It’s usual to mark the time in tenth-of-anhour increments, meaning in chunks of six minutes. Then the number will be multiplied by the lawyer’s agreed upon hourly rate. Fixed fee basis: Combination arrangement
Lawyer may ask for “deposits” which would cover the necessary expenses and costs An executor or administrator of an estate may not charge against the estate any professional fee for legal services as such are already paid for in his capacity as executor or administrator General elements to be considered in fixing a reasonable compensation/L Importance of the subject matter/controversy Extent of the services rendered Professional standing of the lawyer
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS Rule 20.02 A lawyer shall, in case of referral, with the consent of the client, be entitled to a division of fees in proportion to the work performed and responsibility assumed. Duty to Divide Fees in Proportion to Work Done Applicable in instances where legal work would have to be shared between two or more lawyers In this case, fees would have to be shared between these lawyers proportionately (on the basis of the proportion of services they render or by agreement between/among the lawyers) with the prior consent of the client It doesn’t require disclosure to the client of the lawyer’s share
CONTINGENT FEES: Arrangement where fees are due only if the lawyer handles a case successfully. Fees will come from the recovered amount in the case. If the case is unsuccessful, the client is under no obligation to pay his lawyer. Appropriateness of contingent fee arrangement: The only practical means by which a litigant can afford to pay his lawyer. A successful prosecution produces a res out of which the fee can be paid On Criminal cases: Public policy condemns this type of arrangement because these cases don’t produce a res with which to pay the fee
Lawyer Referral System: the purpose of this is to aid individuals who are able to pay fees but need assistance in locating lawyers competent to handle their particular problems.
Reasonableness of contingent fees: It’s validity depends on the reasonableness of the amount fixed as contingent fee under the circumstances of the case.
Rule 20.03 A lawyer shall not, without the full knowledge and consent of the client, accept any fee, reward, costs, commission, interest, rebate or forwarding allowance or other compensation whatsoever related to his professional employment from anyone other than the client.
Illustration: - 50% contingency rate was not considered exorbitant where it was determined that the litigation was difficult - 18% of the P214 million claim which amounts to P38.5 million was found excessive as the lawyer was only tasked to file only one memorandum and his professional standing was “not such.”
Such a payment may be allowed provided it is with full knowledge and consent of the client and subject to the condition that that lawyer reasonably believes that the client’s best interest will not be adversely affected Rule 20.04 A lawyer shall avoid controversies with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice or fraud. Duty to Avoid Disputes with Client Over Fees: It’s preferable that agreement on fees between the client and lawyer be in writing (to avoid disputes) ASSUMPSIT: Latin for “he undertook, he promised”, It’s a cause of action for unpaid work. Its basis is common law so it’s not applicable in the Philippines. Concepts on attorney’s fees: Ordinary sense: compensation paid by client Extraordinary sense: awarded by the court to be paid by the losing party (this must be expressly stated in the decision)
Retaining lien on client’s funds and documents (and property): Upon receipt of the funds belonging to the client, the lawyer may collect any lien which he as over them in connection with his legal services, provided he gives prompt notice to his client. A lawyer is not entitled to unilaterally appropriate his client’s for himself by the mere fact that the client owes him atty’s fees. QUANTUM MERUIT: “as much as he deserves”; the rule implies a promise to pay a reasonable amount for the labor and materials furnished Fees based on quantum meruit is authorized when: There is no express contract for the payment Although there’s formal contract, the fees are unconscionable or unreasonable Void contract The counsel, for justifiable cause, was not able to finish the case to its conclusion There is a hearing.
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS RETAINING FEE: preliminary fee paid to ensure and secure a lawyer’s future services, to remunerate him for being deprived, by being retained by one party, of the opportunity of rendering services to the other part and of receiving pay from him.
In the absence of an agreement to the contrary, the retaining fee is neither made nor received in consideration of the services contemplated; it’s apart from what the client has agreed to pay for the services which he has retained him to perform Absence of the stipulation of additional atty’s fees is not a bar to the collection of additional atty’s fees
2 kinds of retainer fees: 1. General retainer: the fee paid to a lawyer to secure his future services as general counsel for any ordinary legal problem that may arise in the routinary business of the client and referred to him for legal action. Reason for this is that the lawyer is deprived, by being retained by one party, of the opportunity of rendering services to the other part and of receiving pay from him. This fee is independent and different from the compensation which the lawyer should receive in payment for his services 2.
Special retainer: fee for a specific case handled or special service rendered by the lawyer for a client. Expiration of retainer agreement does not mean that lawyer is no longer entitled to attorney’s fees for services rendered the dismissal of a counter-claim (for atty’s fees) does not amount to res judicata Rights and obligations arising from the lawyerclient relationship is not transmissible (therefore the lawyer may not go against the heirs of his client of payment of his professional fees). The fees constitute a charge against the client’s state. When a lawyer rendered legal services to the administrator or executor to assist him in the execution of his trust, his atty’s fees may be allowed as administration expense. But the estate is not directly liable for his fees, because they rest primarily on the executor or administrator.
His remedy is: a) file an action against the executor in his personal capacity; or b) file a petition in the intestate or testate proceedings
ACCEPTANCE FEE: It’s an absolute fee arrangement which entitles a lawyer to get paid for his efforts regardless of the outcome of the litigation
CANON 21 - A LAWYER SHALL PRESERVE THE CONFIDENCE AND SECRETS OF HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT RELATION IS TERMINATED.
Rationale of lawyer- client confidentiality: To permit the attorney to reveal to others what is disclosed, would be not only a gross violation of a sacred trust upon his part, but it would utterly destroy and prevent the usefulness and benefits derived from professional assistance. Lawyer- client confidentiality extends as well to his employees and neither of them should accept employment, which involves or may involve the disclosure or use of these confidences either for the advantage of his client, without his knowledge and consent, and even thought there are other available sources of information. The announced intention of the client to commit crime or fraud is not included within the confidence which he bound to respect. Rule 21.01 - A lawyer shall not reveal the confidences or secrets of his client except; (a) When authorized by the client after acquainting him of the consequences of the disclosure; (b) When required by law; (c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action. Attorney- client privileged defined- in the law of evidence, it is the client’s privilege to refuse to disclose and to prevent any person from disclosing confidential communication between him and his attorney. Factors to consider in creation of a Lawyer- Client relationship: 1. Where legal advice of any kind is sought
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS 2. 3. 4. 5. 6. 7. 8.
from a professional legal adviser in his capacity as such, the communications relating for that purpose, made in confidence by the client, are at his instance permanently protected, from disclosure by himself or by the legal advisor, except the protection be waived.
Nature of lawyer- client relationship: The nature of the lawyer- client relationship is premised on the Roman Law concepts of “locatio conductio operarum” (contract of lease of services) where one person lets his services and another hires them without reference to the object of which the services are to be performed, wherein lawyers’ services may be compensated by honorarium or for hire and mandato (contarct of agency). In modern day, an attorney possesses special powers of trust and confidence reposed on him by his client. A lawyer is independent and his power his entirely different from and superior to those of an ordinary agent. There are rules, ethical conduct and duties that breathe life into it, among those, the fiduciary duty to his client which is at very delicate, confidential character requiring a very high degree pf fidelity and good faith.
Rules on creation of Lawyer- Client relationship: Written contract is not an essential element in the employment of an attorney, it could be expressed or implied. Personal relationship is irrelevant Payment of fees to the lawyer is irrelevant. Lawyer- client relationship is not terminated by a trial court’s decisions on the case. (Self- explanatory rules of Canon 21): Rule 21.02 - A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto.
Rule 21.03 - A lawyer shall not, without the written consent of his client, give information from his files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or any similar purpose. Rule 21.04 - A lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client. Rule 21.05 - A lawyer shall adopt such measures as may be required to prevent those whose services are utilized by him, from disclosing or using confidences or secrets of the clients. Rule 21.06 - A lawyer shall avoid indiscreet conversation about a client's affairs even with members of his family. Rule 21.07 - A lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest.
CANON 22 - A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE CIRCUMSTANCES.
Duty to Withdraw Legal Services Only for Good Cause and Upon Notice Rule 22.01 A lawyer may withdraw his services in any of the following case: (a) When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling; (b) When the client insists that the lawyer pursue conduct violative of these canons and rules; (c) When his inability to work with co-counsel will not promote the best interest of the client; (d) When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively; (e) When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement; (f) When the lawyer is elected or appointed to public office; and (g) Other similar cases.
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DLSU- College of Law HAULO-AMPONG-RICO - MEMORY AID IN LEGAL ETHICS
This is a mandatory rule These are the grounds where a lawyer may withdraw legal services
Requirement of proper withdrawal: The lawyer should have either the written conformity of his client or an order from the court relieving him of the duties of counsel If the client refuses to give consent to the retirement or withdrawal, the lawyer must file an application or petition for withdrawal with the court. He must serve a copy of his petition upon his client and the adverse party at least 3 days before the date set for hearing, otherwise the court may treat the application as a “mere scrap of paper.” Withdrawal of record is required for an attorney of record in litigation: a lawyer must still appear on the date of hearing for the atty-client relation does not terminate formally until there is a withdrawal of record. Until he is properly relieved as counsel of record, he will remain responsible for the conduct of the case. Retirement from the practice of law is not an excuse from properly withdrawing from a case. Even if he has retired, he can’t still ignore court orders. He must go thru proper withdrawal process. A lawyer appointed to public office remains as counsel of record where he did not file a motion to withdraw as counsel. Procedure for the Substitution of Attorneys. There must be filed: Written application for such substitution Written consent of the client If the written consent can’t be obtained, there must be filed with the application proof of service of notice of such motion upon the atty to be substituted in the manner prescribed by the rules If the foregoing is not complied with, substitution will not be permitted. Rule 22.02 A lawyer who withdraws or is discharged shall, subject to a retainer lien, immediately turn over all papers and property to which the client is entitled, and shall cooperative with his successor in the orderly transfer of the matter, including all information necessary for the proper handling of the matter.
Duty to Effect an Orderly Withdrawal or Discharge
Turn-Over
after
The discharge does not terminate the lawyer’s duty to protect the client’s interest.
Lawyer’s right to retain papers: This right persists largely because no substitute procedures have been established to provide a lawyer with a prior secured claim for his fee. Charging lien: a charging lien to be enforceable as security for the payment of atty’s fees requires as a condition sine qua non a judgment for money and execution in pursuance of such judgment secured in the main action by the atty in favour of his client. This lien presupposes that the atty has secured a favourable money judgment for his client.
For Block One 2010- 2011 of DLSU- COL! Mickey Bon Jal Martin Bel Alps Raul
Mike Rocky Nilo Garcia Atom Elle Marian
Diana Shar Jaye Chantal Osh Ayi Chip
“Let Jesus live in our hearts… FOREVER!” ANIMO LASALLE! Copyright October 2010
[email protected];
[email protected];
[email protected] De La Salle University College of Law Committed to excellence. Impassioned to serve.
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