PALE REVIEWER.doc

CHAPTER 1 Requirements “before admission to the bar” or for continuous “practice of law”, etc.

the provisions of this Rule, and who is in good and regular standing, is entitled to practice law.

What is practice of law? The Court ruled that the term “practice of law” implies customarily or habitually holding oneself out to the public as a lawyer for compensation as a source of livelihood or in consideration of his services. The Court further ruled that holding one’s self out as a lawyer may be shown by acts indicative of that purpose, such as identi identifyi fying ng onesel oneselff as attorn attorney ey, appe appear arin ing g in cour courtt in representation of a client , or associating oneself as a partner of  a law office for the general practice of law. -  Atty. Noe-Lacsaman v. Atty. Busmente, A.C. No. 7269 [2011] Any activity, in and out of court, that requires the application of  law, law, legal legal procedu procedure, re, knowled knowledge, ge, traini training ng and experi experienc ence. e. Moreov Moreover, er, we ruled ruled that to engage engage in the practic practicee of law is to perform those acts which are characteristics of the profession ; to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill. - Query of Atty. Silverio-Buffe, A.M. No. 08-6352-RTC [2009] The practi practice ce of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveyancing. In general, all advice to clients, and all action taken for them in matters connected with the law xxx. -  Aguirre v. Rana, B. M. No. 1036. June 10, 2003

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Who may practice law? Section 1, Rule 138 of the Rules of Court provides: Who may practice law. – Any person heretofore duly admitted as a member of the bar, or thereafter admitted as such in accordance with •

Passing the bar exam is not enough A bar candidate does not acquire the right to practice law simply by passin passing g the bar examin examinati ations ons. The The prac practi tice ce of law law is a privilege that can be withheld even from one who has passed the bar examinations, if the person seeking admission had practiced law without a license. True, respondent here passed the 2000 Bar Examinations and took  the lawyer’s lawyer’s oath. However, However, it is the signing in the Roll of  Attorneys that finally makes one a full-fledged lawyer. The fact that respondent passed the bar examinations is immaterial. Passing the bar is not the only qualification to become an attorn ey-at-law. Respondent should know that two essential requisites for becoming a lawyer still had to be performed, namely: his lawyer’s oath to be admi admini nist ster ered ed by this this Cour Courtt and and his his signa signatu ture re in the the Roll Roll of  Attorneys. – Aguirre v. Rana, Rana, B. M. No. 1036. 1036. June 10, 2003 2003

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Signing of the Lawyer’s Oath is not equivalent to “taking the oath” Respondent Abad should know that the circumstances which he has narrated do not constitute his admission to the Philippine Bar and the right to practice law thereafter. He should know that two esse essent ntia iall requ requis isit ites es for for beco becomi ming ng a lawy lawyer er stil stilll had had to be performed, namely: his lawyer's oath to be administered by this Court and his signature in the Roll of Attorneys. (Rule 138, Secs. 17 and 19, Rules Rules of Court Court.) .) -  Re: Elmo Abad, A. M. No. 139 [1983] •

Whether or not a lawyer is entitled to exemption from payment of  his IBP dues during during the time that he was inactive in the practice practice of law paymen entt of dues dues is a nece necess ssar ary y cons conseq eque uenc ncee of  Thus, paym membership in the IBP, of which no one is exempt. exempt. This means •

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that the compulsory nature of payment of dues subsists for as long as one’s membership in the IBP remains regardless of the lack of practice of, or the type of practice, the member is engaged in. There is nothing in the law or rules which allows exemption from payment of membership dues. At most, as as correctly observed observed by the IBP, he could have informed the Secretary of the Integrated Bar of his intention to stay abroad before he left. In such case, his membe membersh rship ip in the IBP could could have have been been termin terminate ated d and his obligation to pay dues could have been discontinued. -  Letter of   Atty. Cecilio Y. Arevalo Arevalo Jr. B.M. 1370 May 9, 2005 2005

Is IBP membership fee a form of tax? For the court to prescribe dues to be paid by the members does not mean that the Court is attempting to levy a tax. exaction on for A membe membersh rship ip fee in the Bar associat association ion is an exacti regulation, while while tax purpos purposee of a tax is a reven revenue ue. If the  judiciary has inherent power to regulate the Bar, it follows that as an incident to regulation, it may impose a membership fee for that purpose. It would not be possible to put on an integrated Bar program without means to defray the expenses. The doctrine of  implied powers necessarily carries with it the power to impose such exaction. -  Letter of Atty. Cecilio Y. Arevalo Jr. B.M. 1370  May 9, 2005 2005

Petition to sign in the Roll of Attorneys, Medado, B.M. No. 2540 [2013] Examples of unauthorized practice of law In the cases where we found a party liable for the unauthorized practice of law, the party was guilty of some overt act like: 1. signing signing court court pleadings pleadings on on behalf behalf of his client; client; 2. appearing appearing before before court hearings hearings as an attorne attorney; y; 3. manif manifest esting ing before before the court court that he will will practi practice ce law despite despite being previously denied admission to the bar; or 4. deliberat deliberately ely attempt attempting ing to practic practicee law and and 5. holdin holding g out himself himself as an attorn attorney ey through through circula circulars rs with full knowledge that he is not licensed to do so.

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- Normatan & Pagayokan v. Balajadia, G.R. No. 169517 2006

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Ther Theree is no prov provis isio ion n unde underr the the CPR CPR whic which h proh prohib ibit itss the the unauthorized practice of law CANON 9 - A lawyer shall not, directly or indirectly, assist in the unauthorized practice of law. While a reading of Canon 9 appears to merely prohibit lawyers from from assist assisting ing in the the unau unauth thor oriz ized ed prac practi tice ce of law, law, the the unau unauth thor oriz ized ed prac practi tice ce of law law by the the lawy lawyer er hims himsel elff is subsumed under this provision, because at the heart of Canon 9 is the lawyer's duty to prevent the unauthorized practice of law. •

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Pre-law requirements Rule 138 Sec. 6. Pre-Law. - No applicant for admission to the bar examination shall be admitted unless he presents a certificate that he has satisfied the Secretary of Education that, before he began pursued and satisfactorily completed in the study of law , he had pursued an authorized and recognized university or college , requiring for admission admission thereto the completion of a four-year high school course, the course of study prescribed therein for a bachelor's degree in arts or sciences with any of the following subjects as major or field of concentration: political science, logic, english, spanish, history and economics.

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Violation of Rule 138 section 6 “[b]y utilizing the school records of his cousin and name-sake, Juan M. Publico when, in actual fact, petitioner had not completed Grade VI of his elementary schooling, much less, First and Second Year High School.”

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For all the foregoing, we find and so hold that respondent falsified his school records, by making it appear that he had finished or completed Grade VI elementary and First and Second Year

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that the compulsory nature of payment of dues subsists for as long as one’s membership in the IBP remains regardless of the lack of practice of, or the type of practice, the member is engaged in. There is nothing in the law or rules which allows exemption from payment of membership dues. At most, as as correctly observed observed by the IBP, he could have informed the Secretary of the Integrated Bar of his intention to stay abroad before he left. In such case, his membe membersh rship ip in the IBP could could have have been been termin terminate ated d and his obligation to pay dues could have been discontinued. -  Letter of   Atty. Cecilio Y. Arevalo Arevalo Jr. B.M. 1370 May 9, 2005 2005

Is IBP membership fee a form of tax? For the court to prescribe dues to be paid by the members does not mean that the Court is attempting to levy a tax. exaction on for A membe membersh rship ip fee in the Bar associat association ion is an exacti regulation, while while tax purpos purposee of a tax is a reven revenue ue. If the  judiciary has inherent power to regulate the Bar, it follows that as an incident to regulation, it may impose a membership fee for that purpose. It would not be possible to put on an integrated Bar program without means to defray the expenses. The doctrine of  implied powers necessarily carries with it the power to impose such exaction. -  Letter of Atty. Cecilio Y. Arevalo Jr. B.M. 1370  May 9, 2005 2005

Petition to sign in the Roll of Attorneys, Medado, B.M. No. 2540 [2013] Examples of unauthorized practice of law In the cases where we found a party liable for the unauthorized practice of law, the party was guilty of some overt act like: 1. signing signing court court pleadings pleadings on on behalf behalf of his client; client; 2. appearing appearing before before court hearings hearings as an attorne attorney; y; 3. manif manifest esting ing before before the court court that he will will practi practice ce law despite despite being previously denied admission to the bar; or 4. deliberat deliberately ely attempt attempting ing to practic practicee law and and 5. holdin holding g out himself himself as an attorn attorney ey through through circula circulars rs with full knowledge that he is not licensed to do so.

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- Normatan & Pagayokan v. Balajadia, G.R. No. 169517 2006

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Ther Theree is no prov provis isio ion n unde underr the the CPR CPR whic which h proh prohib ibit itss the the unauthorized practice of law CANON 9 - A lawyer shall not, directly or indirectly, assist in the unauthorized practice of law. While a reading of Canon 9 appears to merely prohibit lawyers from from assist assisting ing in the the unau unauth thor oriz ized ed prac practi tice ce of law, law, the the unau unauth thor oriz ized ed prac practi tice ce of law law by the the lawy lawyer er hims himsel elff is subsumed under this provision, because at the heart of Canon 9 is the lawyer's duty to prevent the unauthorized practice of law. •

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Pre-law requirements Rule 138 Sec. 6. Pre-Law. - No applicant for admission to the bar examination shall be admitted unless he presents a certificate that he has satisfied the Secretary of Education that, before he began pursued and satisfactorily completed in the study of law , he had pursued an authorized and recognized university or college , requiring for admission admission thereto the completion of a four-year high school course, the course of study prescribed therein for a bachelor's degree in arts or sciences with any of the following subjects as major or field of concentration: political science, logic, english, spanish, history and economics.

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Violation of Rule 138 section 6 “[b]y utilizing the school records of his cousin and name-sake, Juan M. Publico when, in actual fact, petitioner had not completed Grade VI of his elementary schooling, much less, First and Second Year High School.”

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For all the foregoing, we find and so hold that respondent falsified his school records, by making it appear that he had finished or completed Grade VI elementary and First and Second Year

high school, when in truth and in fact he had not, thereby violating provision ionss of Section Sectionss 5 and 6, Rule Rule 127 of the Rules of  the the provis Court, which require completion by a bar examinee or candidate of  the prescribed courses in elementary, high, pre-law and law school, prio priorr to his his admi admiss ssio ion n to the prac practi tice ce of law. law. -  In re: Juan Publi Publico co,Pe ,Petit tition ion for Reinst Reinstate ateme ment nt in the Roll Roll of Attorn Attorney eyss February 20, 1981 Applic Applicant ant should should be ready ready to presen presentt eviden evidence ce of good good moral moral character When applicants seek admission to the bar, they have placed their characte characterr at issue. issue. Therefore, Therefore, the applicant applicant bears the burden burden of  producing producing information information proving proving good moral characte character. r. -  Mitchell Simon , Nick Smith and Nicole Negowetti •

Grossly immoral act A grossly immoral act is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree. It is a willful, flagrant, or shameless act which shows a moral indifference to the opinion of respectable members of the community. - Figueroa v. Barranco, Jr. SBC Case  No. 519 1997  1997  •

Is breach of promise to marry gross immorality?  Respondent was prevented from taking the lawyer’s oath in 1971 harges ges of gros grosss immo immorralit ality y made because of the char made by complainant. To recapitulate, respondent bore an illegitimate illegitimate child with his sweetheart, Patricia Figueroa, who also claims that he did after he passes passes the bar not fulfill fulfill his promise promise to marry marry her after examinations. We find find that that these these facts facts do not consti constitut tutee gross gross immora immoralit lity y  warranting the permanent exclusion of respondent from the legal premaritall sexual sexual relations relations with profession. His engaging in premarita complainant and promises to marry suggests a doubtful moral character on his part but the same does not constitute grossly suspension or immoral conduct. The Court has held that to justify suspension

disbarment the act complained of must not only be immoral, but grossly grossly immoral. immoral. - Figueroa v. Barranco, Jr. SBC Case No. 519 1997  Good moral character v. Rehabilitation When an applicant for admission to the bar has committed firstdegree degree murder, a crime that demonstrates an extreme lack of  good moral character, he must make an extraordinary showing of  present good moral character to establish that he or she is qualified to be admitted to the practice of law xxx. To show rehabilita rehabilitation, tion, [one] must show that he has accepted accepted responsibility for his criminal conduct. Rehabilitation is a necessary, but not sufficient, ingredient of good moral moral charac character ter of bar applican applicantt who had been been convic convicted ted of a serious serious felony; applicant applicant must establish establish his current good moral character, indepe independe ndent nt of and in additio addition n to, eviden evidence ce of  rehabilitation. - In re: James Joseph Hamm Hamm 123 P.3d 652 652 [2005]

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Rehabilitation is not enough Even assuming that [one] has established rehabilitation, showing rehabilitation from criminal conduct does not, in itself, establish good moral character.  Rehabilitation is a necessary, but not sufficient, ingredient of good moral moral character character.. An applica applicant nt must establ establish ish his curren currentt good moral character, independent of and in addition to, evidence of  rehabilitation. Even assuming that he has establishe established d rehabilita rehabilitation, tion, showing showing  rehabi rehabilit litati ation on from from crimi criminal nal conduc conductt does does not, in itse itself lf,, establish good moral character. -  In re: James Joseph Hamm 123 P.3d 652 [2005] 

What is an “upright character” ? 'Uprig 'Upright ht charac character ter'' is someth something ing more more than than an absenc absencee of bad character. It means that he [an applicant for admission] must have conducted himself as a man of upright character ordinarily would, should, or does. Such character character expresses itself not in negatives negatives

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nor in following the line of least resistance, but quite often in the will to do the unpleasant thing if it is right, and the resolve not to do the pleasant thing if it is wrong. -  In re: James Joseph Hamm 123 P.3d 652 [2005] Past and Present moral character We also agree agree with Hamm Hamm that, that, under under the Rule applic applicabl ablee to Hamm's Hamm's applicati application, on, our concern must be with the applicant's present present moral character. character. In Greenberg, we explained that "it is [the applicant's] moral character as of now with which we are concer concerned ned." ." xxx Past misconduct, however, is not irrelevant. Rather, this Court must determine what past bad acts reveal about an applicant's current character. -  In re: James Joseph Hamm 123 P.3d 652 [2005]

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Effect of prior criminal conviction prior convic convictio tion n is not conclus conclusive ive of a lack lack of  “Alt “Althou hough gh a prior present present good moral character character, . .... it adds to his his burd burden en of  requiring convincing convincing estab establis lishin hing g presen presentt good good charac character ter by requiring proof of his full and complete rehabilitation.”- In re: James Joseph Joseph  Hamm 123 P.3d 652 [2005] [2005]

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Can a lawyer-detainee practice law? As a matter of law, when a person indicted for an offense is arrested, he is deemed placed under the custody of the law. He is placed in actual restraint of liberty in jail so that he may be bound to answer for the commission of the offense. He must be detained in jail during the pendency of the case against him, unless he is authorized by the court to be released on bail or on recognizance. Let it be stressed that all prisoners whether under preventive detent detention ion or servin serving g final final senten sentence ce can not practi practice ce their their profession nor engage in any business or occupation, or hold office office,, electi elective ve or appoin appointiv tive, e, while while in detent detention. ion. This This is a necessary necessary consequenc consequencee of arrest arrest and detention. detention. – PP v. Hon.  Maceda and and Javellana Javellana G.R. No. 89591-96 89591-96 January January 24, 2000 2000

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What is the effect of non-payment of IBP dues? Rule Rule 139-A, 139-A, Section Section 10 which which provid provides es that that "defau "default lt in the payment payment of annual annual dues for six months shall warrant suspension of membership in the Integrated Bar, and default in such payment for one year shall be a ground for the removal of the name of the delinquent member from the Roll of Attorneys .” - Santos, Jr. V.  Atty. Llamas A.C No. No. 4749 [2000] [2000]

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Misrepresenting to the public and the courts that he had paid his IBP dues  By indicating "IBP-Rizal "IBP-Rizal 259060" in his pleadings pleadings and thereby misrepresenting to the public and the courts that he had paid his IBP dues to the Rizal Chapter, respondent is guilty o f violating the Code of Professional Responsibility which provides:  Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.  CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE THE INTE INTEGR GRIT ITY Y AND DIGNIT GNITY Y OF THE THE LEGAL EGAL PROFESSION PROFESSION,, AND SUPPORT THE ACTIVITIE ACTIVITIES S OF THE INTEGRATED BAR.  CANON 10 - A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT.  Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of any court; nor shall he mislead or allow the court to be misled by any artifice. - Santos, Jr. V. Atty. Llamas A.C No. 4749 [2000] Is a “senior “senior citizen” citizen” lawyer lawyer exempted from payment of ITR also exempted from payment of IBP dues? While it is true that R.A. No. 7432, §4 grants senior citizens "exe "exemp mpti tion on from from the the paym paymen entt of indi indivi vidu dual al inco income me taxe taxes: s: provided, that their annual taxable income does not exceed the poverty poverty level level as determ determine ined d by the Nation National al Econom Economic ic and Developme Development nt Authority Authority (NEDA) for that year," year," the exemption •

prescribed by law. Since Filipino citizenship is a requirement for admission to the bar, loss thereof terminates membership in the Philippine bar and, consequently, the privilege to engage in the practice of law. In other words, the loss o f Filipino citizenship ipso  jure terminates the privilege to practice law in the Philippines. The practice practice of law is a privilege privilege denied to foreigners. foreigners. - Petition for  leave to resume practice of law,Dacanay B.M. No. 1678 December  17, 2007 

does not include payment of membership or association dues. Santos, Jr. V. Atty. Llamas A.C No. 4749 [2000] Intent is necessary to be guilty of unauthorized practice of law In several cases, we have ruled that the unauthorized practice of  law by assuming to be an attorney and acting as such without authority constitute constitutess indirect indirect contempt contempt which is punishable by fine or imprisonmen imprisonmentt or both. The liability liability for the unauthorized unauthorized practice of law under Section 3(e), Rule 71 of the Rules of Court is in the nature of criminal contempt   and the acts are punished because they are an affront to the dignity and authority of the court, court, and obstru obstruct ct the orderly orderly adminis administra tratio tion n of justic justice. e. In determining liability for criminal contempt, well-settled is the rule that intent is a necessary element , and no one can be punished unless the evidence makes it clear that he intended to commit it. - Normatan & Pagayokan Pagayokan v. Balajadia, Balajadia, G.R. No. 169517 169517 2006

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Does giving up Philippine citizenship automatically result into lost of membership in the Philippine bar? The Constitution provides that the practice of all professions in the Philip Philippin pines es shall shall be limite limited d to Filipi Filipino no citize citizens ns save save in cases cases prescribed by law. Since Filipino citizenship is a requirement for admission to the bar, loss thereof terminates membership in the Philippine bar and, consequently, the privilege to engage in the practice practice of law. In other words, the loss of Filipino citizenship ipso pso jure ure term termin inat ates es the the priv privil ileg egee to prac practi tice ce law law in the the Philippines. The practice of law is a privilege denied to foreigners. - Petition for leave to resume practice of law,Dacanay B.M. No. 1678 December 17, 2007 

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May a lawyer who has lost his Filipino citizenship still practice law in the Philippines? The Constitution provides that the practice of all professions in the Philip Philippin pines es shall shall be limite limited d to Filipi Filipino no citize citizens ns save save in cases cases •

Effect of reacquisition of Filipino citizenship A Filipino lawyer who becomes a citizen of another country and later re-acquires his Philippine citizenship under R.A. No. 9225, rema remain inss to be a memb member er of the the Phil Philip ippi pine ne Bar. Bar. – Petition Petition to reacqu reacquire ire the the privil privileg egee to practi practice ce law in the Phili Philippi ppines nes,,  Muneses, B.M. B.M. 2112 [2012] [2012]

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Requi Requirem rement entss before before one can resume resume practi practice ce of law after after reacquiring Filipino citizenship Before a lawyer who reacquires Filipino citizenship pursuant to RA 9225 can resume his law practice, he must first secure from this Court the authority to do so, conditioned on: a) the updating and payment in full of the annual membership dues in the IBP; b) the payment of professional tax; creditt hours hours of mandat mandatory ory the comp comple leti tion on of at leas leastt 36 credi c) the continuing legal education; this is specially significant to refresh the applicant/petitioner’s knowledge of Philippine laws and update him of legal developments and d) the retaking of the lawyer’s oath which will not only remind him of his duties and responsibilities as a lawyer and as an officer of  the Court, but also renew his pledge to maintain allegiance to the Republic of the Philippines. – Petition for leave to resume practice of law, Dacanay B.M. No. 1678 December 17, 2007  •

What is the purpose for requiring the retaking of Lawyer’s Oath?

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qualifications; passing the bar examinations; taking the lawyer’s oath and signing the roll of attorneys and receiving from the clerk  of court of this Court a certificate of the license to practice. Petition for leave to resume practice of law,Dacanay B.M. No. 1678 December 17, 2007 

The retaking of the lawyer’s oath which will not only remind him of his duties and responsibilities as a lawyer and as an officer of the Court, but also renew his pledge to maintain allegiance to the Republic of the Philippines.

Citizenship requirement in order to practice law in the Philippines Constitution Art. 12 Section 14. xxx. The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law . •

Requirements for all applicants for admission to the bar Section 2, Rule 138 (Attorneys and Admission to Bar) of the Rules of Court: 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 a resident of the Philippines ; and must produce before the Supreme Court satisfactory evidence of good moral character, and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines. •

Continuing requirements to practice law The second requisite for the practice of law   membership in good standing is a continuing requirement. This means continued membership and, concomitantly, payment of annual membership dues in the IBP; payment of the annual professional tax; compliance with the mandatory continuing legal education requirement; faithful observance of the rules and ethics of the legal profession and being continually subject to judicial disciplinary control. -Petition for leave to resume practice of law,Dacanay  B.M. No. 1678 December 17, 2007  •

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Can a successful examinee take his oath before any person allowed by law to administer an oath? Rule 138 Sec. 17. Admission and oath of successful applicants. An applicant who has passed the required examination, or has been otherwise found to be entitled to admission to the bar, shall take and subscribe before the Supreme Court  the corresponding oath of office. Inasmuch as the oath as lawyer is a prerequisite to the practice of  law and may be taken only, before the Supreme Court , by those authorized by the latter to engage in such practice xxx. – PP v. De  Luna, et. al. G.R. Nos. L-10236-48. January 31, 1958 •

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Section 2. Section 41 of the Administrative Code of 1987 is hereby amended to read as follows Sec. 41. Officers Authorized to Administer Oath. - The following officers have general authority to administer oaths: President; Vice-President; Members and Secretaries of both Houses of the Congress; Members of the Judiciary; Secretaries of Departments; provincial governors and lieutenant-governors; city mayors; municipal mayors; bureau directors; regional directors; clerks of courts; registrars of deeds; other civilian officers in the public service of the government of the Philippines whose appointments are vested in the •

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Phases of admission to the bar Moreover, admission to the bar involves various phases such as furnishing satisfactory proof of educational, moral and other •

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President and are subject to confirmation by the Commission on Appointments; all other constitutional officers; and notaries public."

Duties of Attorneys Rule 138 section 20 - It is the duty of an attorney: (a) To maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines; (b) To observe and maintain the respect due to the courts o f justice and  judicial officers; (c) To counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law; (d) To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law; (e) To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client's business except from him or with his knowledge and approval; (f) To abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged; (g) Not to encourage either the commencement or the continuance of  an action or proceeding, or delay any man's cause, from any corrupt motive or interest; (h) Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed; (i) In the defense of a person accused of crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of  the accused, to present every defense that the law permits, to the end that no person may be deprived of life or liberty, but by due process of  law.

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Rule 138 Sec. 18. Certificate. - The Sup reme Court shall thereupon admit the applicant as a member of the bar for all the courts of the Philippines, and shall direct an order to be entered to that effect upon its records, and that a certificate of such record be given to him by the clerk of court, which certificate shall be his authority to practice.

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What is a lawyer’s proof of authority to practice of law?

Failure to sign in the Roll of Attorneys Petitioner did not sign in the Roll of Attorneys for 32 years. What he had signed at the entrance of the PICC was probably just an attendance record. As Medado is not yet a full-fledged lawyer, we cannot suspend him from the practice of law. However, we see it fit to impose upon him a penalty akin to suspension by allowing him to sign in the Roll of Attorneys one ( 1) year after receipt of this Resolution. For his transgression of the prohibition against the unauthorized practice of law, we likewise see it fit to fine him in the amount of  P32,000. – Petition to sign in the Roll of Attorneys, Medado, B.M.  No. 2540 [2013] •

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Certificate of Membership & Certificate of Membership in Good Standing in IBP Certificate of Membership in the Integrated Bar of the Philippines as well as a Certificate of Membership in Good Standing with the Quezon City Chapter of the Integrated Bar of  the Philippines do not constitute his admission to the Philippine Bar and the right to practice law thereafter . -  Re: Elmo Abad,  A. M. No. 139 [1983] •

Requirements after flunking the bar 3 times Sec. 16. Failing candidates to take review course. - Candidates who have failed the bar examinations for three times  shall be disqualified from taking another examination unless they show to the satisfaction of the court that they have enrolled in and passed regular fourth year review classes  as well as attended a pre-bar review course in a recognized law school. •

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Enrollment and completion of pre-bar review course is an additional requirement under Rule 138 of the Rules of Court for those who failed the bar examinations for three (3) or more times.  In re: Purisima, B.M. Nos. 979 and 986 [2002]

His disinclination to use the title of "counselor" does not warrant his use of the title of attorney. -  Alawi v. Alauya, A.M. SDC-97-2P. February 24, 1997 

Prohibited acts of an examinee Rule 138 Sec. 12. Committee of examiners. - Examinations shall be conducted by a committee of bar examiners to be appointed by the Supreme Court. This committee shall be composed of a Justice of the Supreme Court, who shall act as chairman, and who shall be designated by the court to serve for one year, and eight members of  the bar of the Philippines, who shall hold office for a period of one year. The names of the members of this committee shall be published in each volume of the official reports. Rule 138 Sec. 13. Disciplinary measures. - No candidate shall endeavor to influence any member of the committee, and during examination the candidates shall not communicate with each other  nor shall they give or receive any assistance. The candidate who violates this provision, or any other provision of  this rule, shall be barred from the examination, and the same to count as a failure against him, and further disciplinary action, including permanent disqualification, may be taken in the discretion of the court. •

The professors of the individual review subjects attended by the candidates under this rule shall certify under oath that the candidates have regularly attended classes and passed the subjects under the same conditions as ordinary students and the ratings obtained by them in the particular subject. Authority to appear in behalf of a client

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Sec. 21. Authority of attorney to appear. - An attorney is presumed to be properly authorized to represent any cause in which he appears, and no written “power of attorney” is required to authorize him to appear in court for his client, but the presiding judge may, on motion of either party and on reasonable grounds therefor being shown, require any attorney who assumes the right to appear in a case to produce or prove the authority under which he appears, and to disclose, whenever pertinent to any issue, the name of the person who employed him, and may thereupon make such order as justice requires. An attorney wilfully appearing in court for a person without being employed, unless by leave of the court, may be punished for contempt as an officer of the court who has misbehaved in his official transactions.

A “Counselor” is not an “Attorney” The title of "attorney" is reserved to those who, having obtained the necessary degree in the study of law and successfully taken the Bar Examinations, have been admitted to the Integrated Bar of the Philippines and remain members thereof in good standing; and it is they only who are authorized to practice law in this jurisdiction. •

Can an “indefinite suspension” from the practice of law prohibit a lawyer from filing a citizen or taxpayer suit? Petitioner Alan F. Paguia (petitioner), as citizen and taxpayer, filed this original action for the writ of certiorari to invalidate President Gloria Macapagal-Arroyo’s nomination of respondent former Chief Justice Hilario G. Davide, Jr. (respondent Davide) as Permanent Representative to the United Nations (UN) for violation of Section 23 of Republic Act No. 7157 (RA 7157), the Philippine Foreign Service Act of 1991. In their separate Comments, respondent Davide, the Office of the President, and the Secretary of Foreign Affairs (respondents) raise threshold issues against the petition. First, they question •

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petitioner’s standing to bring this suit because of his indefinite suspension from the practice of law. •

An incapacity to bring legal actions peculiar to petitioner also obtains. Petitioner’s suspension from the practice of law bars him from performing “any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience.” Certainly, preparing a petition raising carefully crafted arguments on equal protection grounds and employing highly legalistic rules of statutory construction to parse Section 23 of RA 7157 falls within the proscribed conduct. - Paguia v. Office of the President, G.R. No. 176278 [2010] CHAPTER 2 Law Student Rule

filed, must be signed by the supervising attorney for and in behalf of the legal clinic. •

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RULE 138-A LAW STUDENT PRACTICE RULE SC Circular No. 19, prom. Dec. 19, 1986 •

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SECTION 1. Conditions for Student Practice. — A law student who has successfully completed his 3rd year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's clinical legal education program approved by the Supreme Court, may appear without compensation in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to present any indigent clients accepted by the legal clinic of the law school. Sec. 2. Appearance. — The appearance of the law student authorized by this rule, shall be under the direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by the law school. Any and all pleadings, motions, briefs, memoranda or other papers to be

The phrase "direct supervision and control" requires no less than the physical presence of the supervising lawyer during the hearing. Sec. 3. Privileged communications. — The Rules safeguarding privileged communications between attorney and client shall apply to similar communications made to or received by the law student, acting for the legal clinic. Sec. 4. Standards of conduct and supervision. — The law student shall comply with the standards of professional conduct governing members of the Bar. Failure of an attorney to provide adequate supervision of student practice may be a ground for disciplinary action.

Rule 138 (RRC) Sec. 34 Rule 138 (RRC) Sec. 34. By whom litigation conducted. - In the court of a justice of the peace a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. •

In any other court, a party may conduct his litigation personally or by aid of an attorney, and his appearance must be either personal or by a duly authorized member of the bar. Rule 138 section 34 does not apply in cases before the RTC The Rules are clear. In municipal courts, the litigant may be assisted by a friend, agent, or an attorney. However,  in cases before the regional trial court, the litigant must be aided by a duly authorized member of the bar. The rule invoked by the •

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Torcinos applies only to cases filed with the regional trial court and not to cases before a municipal court. -  Bulacan v. Torcino, G.R. No. L-44388 January 30, 1985 But for the protection of the parties and in the interest of justice, the requirement for appearances in regional trial courts and higher courts is more stringent. –  Bulacan v. Torcino, G.R. No.  L-44388 January 30, 1985

BAR MATTER NO.730, June 13, 1997 For the guidance of the bench and bar, we hold that a law student appearing before the Regional Trial Court  under Rule 138-A should at all times be accompanied by a supervising lawyer. •

Law student can appear without supervision of a lawyer The rule, however, is different if the law student appears before an inferior court, where the issues and procedure are relatively simple. In inferior courts, a law student may appear in his personal capacity without the supervision of a lawyer.   Thus, a law student may appear before an inferior court as an agent or friend of a party without the supervision of a member of the bar. •

Reconciling the 2 rules There is really no problem as to the application of Section 34 of  Rule 138 and Rule 138-A. In the former, the appearance of a nonlawyer, as an agent or friend of a party litigant, is expressly allowed, while the latter rule provides for conditions when a law student, not as an agent or a friend of a party litigant, may appear before the courts. - Cruz v. Mina GR no. 154207 April 27, 2007 •

The phrase“In the court of a justice of the peace”means: The phrase “ In the court of a justice of the peace ” in Bar Matter No. 730 is subsequently changed to “In the court of a municipality” as it now appears in Section 34 of Rule 138, thus: SEC. 34. By whom litigation is conducted. — In the Court of a municipality a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney and his appearance must be either personal or by a duly authorized member of the bar. - Cruz v. Mina GR no. 154207 April 27, 2007  •

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The term "Municipal Trial Courts" as used in these Rules shall include: 1. Metropolitan Trial Courts, 2. Municipal Trial Courts in Cities, 3. Municipal Trial Courts, and 4. Municipal Circuit Trial Courts. - Cruz v. Mina GR no. 154207 April 27, 2007 

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Caution when one act as his own attorney This provision means that in a litigation, parties may personally do everything during its progress -- from its commencement to its termination. When they, however, act as their own attorneys, they are restricted to the same rules of evidence and procedure as those qualified to practice law; otherwise, ignorance would be unjustifiably rewarded. Individuals have long been permitted to manage, prosecute and defend their own actions; and when they do so, they are not considered to be in the practice of law . "One does not practice law by acting for himself any more than he practices medicine by rendering first aid to himself.“ –  Maderada v. Judge Mediodea, A.M. No. MTJ-02-1459. October 14, 2003 •

Appearing as his own attorney is not “practice of law” Clearly, in appearing for herself, complainant was not customarily or habitually holding herself out to the public as a lawyer. Neither was she demanding payment for such services. Hence, she cannot be said to be in the practice of law. -  Maderada v. Judge  Mediodea, A.M. No. MTJ-02-1459. October 14, 2003 •

The law allows persons who are not lawyers by profession to litigate their own case  in court. The right of complainant to litigate her case personally  cannot be taken away from her.  Maderada v. Judge Mediodea, A.M. No. MTJ-02-1459. October  14, 2003

strictly construed because public policy demands that legal work  should be entrusted only to those who possess tested qualifications, are sworn to observe the rules and ethics of the legal profession and subject to judicial disciplinary control. -  BAR MATTER NO. 730 June 13, 1997

UNAUTHORIZED PRACTICE OF LAW CANON 9 - A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY, ASSIST IN THE UNAUTHORIZED PRACTICE OF LAW. 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.

Appearance of a law student in inferior courts does not require supervision of lawyer For relatively simple litigation before municipal courts, the Rules still allow a more educated or capable person  in behalf of a litigant who cannot get a lawyer. -  Bulacan v. Torcino, G.R. No. L44388 January 30, 1985 The rule, however, is different if the law student appears before an inferior court, where the issues and procedure are relatively simple. In inferior courts, a law student may appear in his personal capacity without the supervision of a lawyer. -  BAR  MATTER NO. 730 June 13, 1997 A law student may appear before an inferior court as an agent or friend of a party without the supervision of a member of the bar. - BAR MATTER NO. 730 June 13, 1997

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Threefold rationale behind the Law Student Practice Rule 1. to ensure that there will be no miscarriage of justice as a result of incompetence or inexperience of law students, who, not having as yet passed the test of professional competence, are presumably not fully equipped to act a counsels on their own; 2. to provide a mechanism by which the accredited law school clinic may be able to protect itself from any potential vicarious liability arising from some culpable action by their law students; and 3. to ensure consistency with the fundamental principle that no person is allowed to practice a particular profession without possessing the qualifications, particularly a license, as required by law. •

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The respondent alleges that the complaint is irregular as it was signed not by the plaintiff but by one who was not a member of the bar and who designated himself merely as "Friend counsel for the Plaintiff." The appellants argue that the municipal court did not acquire jurisdiction over the case. •

Presiding judge has no discretion The matter of allowing a law student to appear before the court unaccompanied by a supervising lawyer cannot be left to the discretion of the presiding judge. The rule clearly states that the appearance of the law student shall be under the direct control and supervision of a member of the Integrated Bar of the Philippines duly accredited by law schools. The rule must be •

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They invoke Section 5, Rule 7 which states that [SEC. 5. Signature and address] [e]very pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address. DECIDE.

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Held: Under the facts of this case, however, the applicable provision is Section 34, Rule 138 of the Rules of Court which states: SEC. 34. By whom litigation is conducted. In the Court of a municipality a party may conduct his litigation in person with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney and his appearance must be either personal or by a duly authorized member of the bar. - Bulacan v. Torcino, G.R. No. L-44388 January 30, 1985 •

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Supervising lawyer should be the one to sign the pleadings Rule 7 (RRC) Section 3. Signature and address. — Every • pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box. Signing amounts to certification of lawyer • Rule 7 (RRC) Section 3. xxx The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of  his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. Effect of unsigned pleadings • Rule 7 (RRC) Section 3. An unsigned pleading produces no legal effect . However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading,xxx, shall be subject to appropriate disciplinary action. Can a third year law student appear as private prosecutor in a criminal case and within the jurisdiction of the inferior court?

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The petitioner, describing himself as a third year law student,  justifies his appearance  as private prosecutor on the bases of  Section 34 of Rule 138 of the Rules of Court. The petitioner furthermore avers that his appearance was with the prior conformity of the public prosecutor and a written authority of Mariano Cruz appointing him to be his agent in the prosecution of the said criminal case . The MeTC denied permission for petitioner to appear as private prosecutor on the ground that Circular No. 19 (1997) governing limited law student practice in conjunction with Rule 138-A of  the Rules of Court (Law Student Practice Rule) should take precedence over the ruling of the Court laid down in Cantimbuhan (1983).

Held: Petitioner expressly anchored his appearance on Section 34 of Rule 138. The court a quo must have been confused by the fact that petitioner referred to himself as a law student in his entry of  appearance. Rule 138-A should not have been used by the courts a quo in denying permission to act as private prosecutor against petitioner for the simple reason that Rule 138-A is not the basis for the petitioner’s appearance. Section 34, Rule 138 is clear that appearance before the inferior courts by a non-lawyer is allowed,  irrespective of whether or not he is a law student. As succinctly clarified in Bar Matter No. 730, by virtue of Section 34, Rule 138, a law student may appear, as an agent or a friend of a party litigant, without the supervision of a lawyer before inferior courts. - Cruz v. Mina GR no. 154207 April 27, 2007 •

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Fiscal’s role when there is a private p rosecutor The permission of the fiscal is not necessary for one to enter his appearance as private prosecutor. In the first place, the law does not impose this condition. What the fiscal can do, if he wants to handle the case personally is to disallow the private prosecutor's •

participation, whether he be a lawyer or not, in the trial of the case. On the other hand, if the fiscal desires the active participation of the private prosecutor, he can just manifest to the court that the private prosecutor, with its approval, will conduct the prosecution of the case under his supervision and control. – Cantimbuhan v. Hon. Cruz, Jr., G.R. No. L-51813-14 November 29, 1983

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Sections 4 and 15, Rule 110 of the Rules of Court SEC. 4. Who must prosecute criminal actions. — All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. xxx xxx xxx SEC. 15. Intervention of the offended party in criminal action. — Unless the offended party has waived the civil action or expressly reserved the right to institute it separately from the criminal action, and subject to the provisions of section 4 hereof, he may intervene, personally or by attorney, in the prosecution of the offense. •

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. Rule 2.03 - A lawyer shall not do or permit to be done any act designed primarily to solicit legal bu siness. Rule 2.04 - A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant.

CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE INFORMATION OR STATEMENT OF FACTS.

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CHAPTER 3 Solicitation of legal services Code of Professional Responsibility • CANON 2 - A LAWYER SHALL MAKE HIS LEGAL SERVICES AVAILABLE IN AN EFFICIENT AND CONVENIENT MANNER COMPATIBLE WITH THE INDEPENDENCE, INTEGRITY AND EFFECTIVENESS OF THE PROFESSION. •

Rule 2.01 - A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed.

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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. 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. Rule 3.03 - Where a partner accepts public office, he shall withdraw from the firm and his name shall be dropped from the firm name unless the law allows him to practice law currently. 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.

Rule 138 Sec. 27. Attorneys removed or suspended by Supreme Court on • what grounds. - A member of the bar may be removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office,

grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a wilfull disobedience of any lawful order of a superior court, or for corruptly or wilfully appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. Rule 2.03 should be read in connection with Rule 1.03 of the CPR •

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Rule 2.03 - A lawyer shall not do or permit to be done any act designed primarily to solicit legal business. RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT MOTIVE OR INTEREST, ENCOURAGE ANY SUIT OR PROCEEDING OR DELAY ANY MAN’S CAUSE. This rule proscribes “ambulance chasing” (the solicitation of  almost any kind of legal business by an attorney, personally or through an agent in order to gain employment) as a measure to protect the community from barratry and champerty.  Linsangan v. Atty. Tolentino, A.C. No. 6672, September 4, 2009

Do not “pirate” a client CANON 8 - A LAWYER SHALL CONDUCT HIMSELF WITH • COURTESY, FAIRNESS AND CANDOR TOWARDS HIS PROFESSIONAL COLLEAGUES, AND SHALL AVOID HARASSING TACTICS AGAINST OPPOSING COUNSEL. 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. The following elements distinguish the legal profession from a business:

1. A duty of public service, of which the emolument is a byproduct, and in which one may attain the highest eminence without making much money; 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. -  Atty. Khan Jr. v. Atty. Simbillo, A.C. No. 5299, August 19, 2003 General rule Hence, lawyers are prohibited from soliciting cases for the purpose • of gain, either personally or through paid agents or brokers. Such actuation constitutes malpractice, a ground for disbarment.  Linsangan v. Atty. Tolentino, A.C. No. 6672, September 4, 2009 • “Solicitation or obtaining of professional employment by any means of communication." - Geffen v. Moss, 53 Cal.App.3d 215, 125 Cal.Rptr. 687 [1975] Solicitation or Ambulance chasing We need not labor the point that solicitation or ambulance • chasing, so-called, either directly or indirectly throug h the services of runners or others, is conduct which is reprehensible and inimicable to the traditions and best interests of the legal profession. Not only does it provoke derision and disrespect in the eyes of the public, but it is an overreaching of the other members of the profession who adhere to the standards fixed by canons of  ethics and the dictates of good conscience. To permit such conduct to continue undeterred could only result in unsavory competitions and consequences materially detrimental to the dignity and honor of the legal profession as a whole. -  In re Krasner 204 N.E.2d 10 (1965)

Ambulance chasing This rule proscribes “ambulance chasing” (the solicitation of  • almost any kind of legal business by an attorney, personally or through an agent in order to gain employment) as a measure to protect the community from barratry and champerty. -  Linsangan v. Atty. Tolentino, A.C. No. 6672, September 4, 2009 Champertous contract Champerty n. an agreement between the party suing in a lawsuit • (plaintiff) and another person, usually an attorney, who agrees to finance and carry the lawsuit in return for a percentage of the recovery  (money won and paid.) In Common Law this was illegal on the theory that it encouraged lawsuits. Contingent fee is valid • Contingent fee contracts are permitted in this jurisdiction because they redound to the benefit of the poor client and the lawyer "especially in cases where the client has meritorious cause of  action, but no means with which to pay for legal services unless he can, with the sanction of law, make a contract for a contingent fee to be paid out of the proceeds of litigation . Oftentimes, the contingent fee arrangement is the only means by which the poor clients can have their rights vindicated and upheld." As long as the lawyer does not exert undue influence on his • client, that no fraud is committed or imposition applied, or that the compensation is clearly not excessive as to amount to extortion, a contract for contingent fee is valid and enforceable. – Fabillo v. IAC G.R. No. L-68838 March 11, 1991 Acceptance fee An acceptance fee is not a contingent fee, but is an absolute fee • arrangement which entitles a lawyer to get paid for his efforts regardless of the outcome of the litigation. - Yu v. Bondal, A.C. No. 5534, January 17, 2005 Touters - someone who advertises for customers in an especially • brazen way.

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Common barratry consisting of frequently stirring up suits and quarrels between individuals.

Only way to announce legal service For this reason, lawyers are only allowed to announce their • services  by publication in reputable law lists or use of simple professional cards. -  Linsangan v. Atty. Tolentino, A.C. No. 6672, September 4, 2009 Nonetheless, the solicitation of legal business is not altogether • proscribed. However, for solicitation to be proper, it must be compatible with the dignity of the legal profession . If it is made in a modest and decorous manner, it would bring no injury to the lawyer and to the bar. -  Atty. Khan Jr. v. Atty. Simbillo, A.C. No. 5299, August 19, 2003 •

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For this reason, lawyers are only allowed to announce their services by publication in reputable law lists or use of simple professional cards. Linsangan v. Atty. Tolentino, A.C. No. 6672, September 4, 2009 Professional calling cards may only contain the following details:

1. 2. 3. 4. 5.

lawyer’s name; name of the law firm with which he is connected; address; telephone number and special branch of law practiced.

- Linsangan v. Atty. Tolentino, A.C. No. 6672, September 4, 2009 Brief biographical and informative data • Such data must not be misleading and may include only the following: 1. a statement of the lawyer’s name and the names of his professional associates; 2. addresses, telephone numbers, cable addresses; 3. branches of law practiced;

4. date and place of birth and admission to the bar; 5. schools attended with dates of graduation, degrees and other educational distinctions; 6. public or quasi-public offices; 7. posts of honor; 8. legal authorships; 9. legal teaching positions; 10. membership and offices in bar associations and committees thereof, in legal and scientific societies and legal fraternities; 11. the fact of listings in other reputable law lists; 12. the names and addresses of references; and, 13. with their written consent, the names of clients regularly represented. - Atty. Khan Jr. v. Atty. Simbillo, A.C. No. 5299, August 19, 2003 Acceptable law list publication • 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 purposes. For that reason, a lawyer may not properly publish his brief biographical and informative data in a daily paper, magazine, trade journal or society program. Nor may a lawyer permit his name to be published in a law list the conduct, management, or contents of which are calculated or likely to deceive or injure the public or the bar, or to lower dignity or standing of the profession.  -  Atty. Khan Jr. v. Atty. Simbillo, A.C.  No. 5299, August 19, 2003 Acceptable publication The use of an ordinary simple professional card is also permitted. • The card may contain only a statement of his name, the name of  the law firm which he is connected with, address, telephone number and special branch of law practiced. The publication of a simple announcement of the opening of a law firm or of  changes in the partnership, associates, firm name or office address, being for the convenience of the profession, is not

objectionable. -  Atty. Khan Jr. v. Atty. Simbillo, A.C. No. 5299,  August 19, 2003 Telephone directory He may likewise have his name listed in a telephone directory but • not under a designation of special branch of law. - Atty. Khan  Jr. v. Atty. Simbillo, A.C. No. 5299, August 19, 2003 Whether or not the firm of Velasquez, Rodriguez, Respicio, Ramos, Nidea, and Prado may call itself “A law Firm Of St. Thomas More and Associate Members” We agree with the OBC. Rule 3.02 is clear. No name not • belonging to any of the partners or associates may be used in the firm name for any purpose. In one case, we have ruled that the use of the firm name of a foreign law firm is unethical because that firm is not authorized to practice law in this  jurisdiction. In this case, “The Law Firm of St. Thomas More and Associate Members” is not a law firm in this jurisdiction or even in any other jurisdiction. A “St. Thomas More and Associates” or STMA is in fact the socio-political ministry or the couples for Christ, a Christian family-renewal community. - PP v. Gonzalez,  Jr., G.R. No. 139542 June 10, 2003 To appellate to the name of the lawyers “The Law Firm of St. • Thomas More and Associate Members” indeed appears misleading. It implies that St. Thomas More is a Law Firm when in fact it is not it would also convey to the public the impression that the lawyers are members of the law firm which does not exist. To the public, it would seem that the purpose or intention of adding “The Law Firm of St. Thomas More and Associates Members” is to bask in the name of a Saint, although that may not really, be the purpose or intention of the lawyers. The appellation only tends to confuse the public and in a way demean both the saints and the legal profession whose members must depend on their own name and record and merit and not on the name/glory of other persons living or dead. – PP v. Gonzalez,  Jr., G.R. No. 139542 June 10, 2003

Philippine Daily Inquirer, which reads: “ANNULMENT OF MARRIAGE Specialist 532-4333/521-2667.” - Atty. Khan Jr. v. Atty. Simbillo, A.C. No. 5299, August 19, 2003

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Thus, the use of simple signs stating the name or names of the lawyers, the office and residence address and fields of practice, as well as advertisement in legal periodicals bearing the same brief  data, are permissible. Even the use of calling cards is now acceptable. Publication in reputable law lists, in a manner consistent with the standards of conduct imposed by the canon, of  brief biographical and informative data is likewise allowable.  Atty. Khan Jr. v. Atty. Simbillo, A.C. No. 5299, August 19, 2003

Calling card of Atty. Tolentino

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Complainant alleged that respondent, with the help of paralegal Fe Marie Labiano, convinced his clients to transfer legal representation. Respondent promised them financial assistance and expeditious collection on their claims. To induce them to hire his services, he persistently called them and sent them text messages. To support his allegations, complainant presented the sworn affidavit of James Gregorio attesting that Labiano tried to prevail upon him to sever his lawyer-client relations with complainant and utilize respondent’s services instead, in exchange for a loan of  P50,000.

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Moreover, by engaging in a money-lending venture with his clients as borrowers, respondent violated Rule 16.04: Rule 16.04 – A lawyer shall not borrow money from his client unless the client’s interests 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. -  Linsangan v. Atty. Tolentino, A.C. No. 6672, September 4, 2009

The rule is that a lawyer shall not lend money to his client. The only exception is, when in the interest of justice, he has to advance necessary expenses (such as filing fees, stenographer’s fees for transcript of stenographic notes, cash bond or premium for surety bond, etc.) for a matter that he is handling for the client. The rule is intended to safeguard the lawyer’s independence of  mind so that the free exercise of his judgment may not be adversely affected. It seeks to ensure his undivided attention to the case he is handling as well as his entire devotion and fidelity to the client’s cause. -  Linsangan v. Atty. Tolentino, A.C. No. 6672, September 4, 2009

Lending money to client If the lawyer lends money to the client in connection with the • client’s case, the lawyer in effect acquires an interest in the subject matter of the case or an additional stake in its outcome. Either of  these circumstances may lead the lawyer to consider his own recovery rather than that of his client, or to accept a settlement which may take care of his interest in the verdict to the prejudice of the client in violation of his duty of undivided fidelity to the client’s cause. -  Linsangan v. Atty. Tolentino, A.C. No. 6672, September 4, 2009 Uninformative fact

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Somewhat more troubling is appellant's listing, in large capital letters, that he was a member of the Bar of the Supreme Court of the United States. The emphasis of this relatively uninformative fact is at least bad taste. - In re: R.M.J. 455 U.S. 191 [1982] 

Including a government lawyer in a business card • Thus, while he may not be actually and directly employed with the firm, the fact that his name appears on the calling card as a partner in the Baligod, Gatdula, Tacardon, Dimailig & Celera Law Offices give the impression that he is connected therein and may constitute an act of solicitation and private practice which is declared unlawful under Republic Act No. 6713. - Samonte v. Atty. Gatdula A.M. No. P-99-1292 [1999]  A verified complaint, sought to enjoin Juan G. Collas, Jr. and nine other lawyers from practicing law under the name of Baker & McKenzie, a law firm organized in Illinois We hold that Baker & McKenzie, being an alien law firm, cannot • practice law in the Philippines (Sec. 1, Rule 138, Rules of Court). As admitted by the respondents in their memorandum, Baker & McKenzie is a professional partnership organized in 1949 in Chicago, Illinois with members and associates in 30 cities around the world. Respondents, aside from being members of the Philippine bar, practicing under the firm name of Guerrero & Torres, are members or associates of Baker &Mckenzie.  Dacanay v. Baker & McKenzie, et. al. Adm. Case No. 2131  [1985]  • As pointed out by the Solicitor General, respondents' use of the firm name Baker & McKenzie constitutes a representation that being associated with the firm they could "render legal services of  the highest quality to multinational business enterprises and others engaged in foreign trade and investment“. This is unethical because Baker & McKenzie is not authorized to practice law here. -  Dacanay v. Baker & McKenzie, et. al. Adm. Case No. 2131  [1985] 

Director of Religious Affairs v. Bayot, A.C. No. L-1117, March 20, 1944 •

Sunday Tribune of June 13, 1943, which reads as follows: Marriage license promptly secured thru our assistance & the 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.

Admonition to a young lawyer "The most worth and effective advertisement possible, even for a • young lawyer, . . . is the establishment of a well-merited reputation for professional capacity and fidelity to trust. This cannot be forced but must be the outcome of character and conduct.“ -  Director of   Religious Affairs v. Bayot, A.C. No. L-1117, March 20, 1944

Unacceptable advertisement LUIS B. TAGORDA Attorney

Notary Public CANDIDATE FOR THIRD MEMBER Province of Isabela

(NOTE. — As notary public, he can execute for you a deed of sale for the purchase of land as required by the cadastral office; can renew lost documents of your animals; can make your application and final requisites for your homestead; and can execute any kind of affidavit. As a lawyer, he can help you collect your loans although long overdue, as well as any complaint for or against you. Come or write to him in his town, Echague, Isabela. He offers free consultation, and is willing to help and serve the poor.) Volunteer [legal] advice is malpractice It is unprofessional for a lawyer to volunteer advice to bring a • lawsuit, except in rare cases where ties of blood, relationship or trust make it his duty to do so. Stirring up strife and litigation is not only unprofessional, but it is indictable at common law. Canons of Professionals Ethics adopted by the American Bar   Association in 1908 and by the Philippine Bar Association in 1917. Canons 27 and 28 of the Code of Ethics - In re: Tagorda, 53 Phil. 37 (1929) Your best advertisement as a lawyer • We repeat, the canon of the profession tell us that the best advertising possible for a lawyer is a well-merited reputation for professional capacity and fidelity to trust, which must be earned as the outcome of character and conduct. • Good and efficient service to a client as well as to the community has a way of publicizing itself and catching public attention. That publicity is a normal by-product of effective service which is right and proper. A good and reputable lawyer needs no artificial stimulus to generate it and to magnify his success. He easily sees the difference between a normal by-product of able service and the unwholesome result of propaganda. - Ulep vs. Legal Clinic 223 SCRA 378 Prohibited advertisement or solicitation In re: Tagorda, 5 3 Phil. 37 (1929)

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But solicitation of business by circulars or advertisements, or by personal communications or interview not warranted by personal relations,is unprofessional. It is equally unprofessional to procure business by indirection through toutersof any kind, whether allied real estate firms or trust companies advertising to secure the drawing of deeds or wills or offering retainers in exchange for executorships or trusteeships to be influenced by the lawyer. Indirect advertisement for business by furnishing or inspiring newspaper comments concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer's position, and all other like self-laudation, defy the traditions and lower the tone of our high calling, and are intolerable.

Best mode of advertisement The most worthy and effective advertisement possible, even for a • young lawyer, and especially with his brother lawyers, is the establishment of a well-merited reputation for professional capacity and fidelity to trust. This cannot be forced, but must be the outcome of character and conduct. -  In re: Tagorda, 53 Phil. 37 (1929) Law firm with a foreign lawyer as partner In the year 1904 he made an arrangement with the defendant Ney, • a practicing attorney, to carry on business together, sending out a circular signed "Ney & Bosque," stating that they had established an office for the general practice of law in all the courts of the Islands and that Bosque would devote himself especially to consultation and office work relating to Spanish law. The paper was headed "Law Office - Ney & Bosque. Juan G. Bosque,  jurisconsultoespañol - C.W. Ney, abogadoamericano." Since that time the defendant Bosque has not personally appeared • in the courts, and with one exception, occuring through an inadvertance, papers from the office were signed not with the firm name alone nor with any designation of the firm as attorneys, but

with the words "Ney & Bosque - C.W. Ney, abogado.“ - U.S. vs.  Ney and Bosque, 8 Phil. 146 (1907) •

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Moreover the firm circular in setting forth the establishment of an office for the general practice of law in all the courts of the Islands, amounted to an assertion of his right and purpose, not effectively qualified by the addition that he would devote himself to consultation and office work relating to Spanish law. 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.

Rule 3.02 - In the choice of a firm name, no false, misleading or assumed name shall be used.  Xxx. CHAPTER 4 Attorney’s fees and Compensation for legal services 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; •

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and commensurate with the services rendered, but also to maintain the dignity and integrity of the legal profession to which he belongs. – Rayos v. Atty. Hernandez, G.R. No. 169079, February 12, 2007

(i) The character of the employment, whether occasional or established; and (j) The professional standing of the lawyer. 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. 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 . 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.

Bases for just compensation With his capital consisting of his brains and with his skill • acquired at tremendous cost not o nly i n money but in expenditure of time and energy , he is entitled to the protection of  any judicial tribunal against any attempt on the part of his client to escape payment of his just compensation.–  Masmud v. NLRC, G.R. No. 183385, February 13, 2009 Professional fee is subject to court’s regulatory power Upon taking his attorney’s oath  as an officer of the court, a • lawyer submits himself to the authority of the courts to regulate his right to charge professional fees . –Rayos v. Atty. Hernandez, G.R. No. 169079, February 12, 2007  Reasons why lawyer’s compensation is subject to the supervision of the court • It follows that a lawyer’s compensation for professional services rendered is subject to the supervision of the court, not just to guarantee that the fees he charges and receives remain reasonable

Collection suit should be the last resort

Rule 20.4 of the Code of Professional Responsibility advises lawyers to avoid controversies with clients concerning their compensation and to resort to judicial action only to prevent imposition, injustice or fraud. Suits to collect fees should be avoided and should be filed only when circumstances force lawyers to resort to it. - Pineda v. Atty. De Jesus, et. al. G.R. No. 155224 August 23, 2006  Rule 138 Sec. 24. Compensation of attorneys; agreement as to fees. - An attorney shall be 0entitled to have and recover from his client no more than a reasonable compensation   for his services, with a view: 1) to the importance of the subject matter of the controversy, 2) the extent of the services rendered, and 3) the professional standing of the attorney. •

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No court shall be bound by the opinion of attorneys as expert witnesses as to the proper compensation , but may disregard such testimony and base its conclusion on its own professional knowledge. A written contract for services shall control the amount to be paid therefor unless found by the court to be unconscionable or unreasonable. Section 25, Rule 138 of the Rules of Court: SEC. 25. Unlawful retention of client’s funds; contempt — When an attorney unjustly retains in his hands money of his client after it has been demanded  he may be punished for contempt as an officer of the Court who has misbehaved in his official

transactions; but proceedings under this section shall not be a bar to a criminal prosecution. Rule on division of legal fees • 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. CANON 16 - A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS PROFESSION. •

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Rule 16.01 - A lawyer shall account for all money or property collected or received for or from the client. 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 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. 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.

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This rule is intended to prevent the lawyer from taking advantage of his influence over the client. –  Junio v. Atty. Grupo, A.C. No. 5020, December 18, 2001

Non-payment of loan is a violation of PCR not misappropriation or embezzlement • Respondent’s liability is thus not for misappropriation or embezzlement  but for violation of Rule 16.04 of the Code of  Professional Responsibility which forbids lawyers from borrowing money from their clients unless the latter’s interests are protected by the nature of the case or by independent advice. In this case, respondent’s liability is compounded by the fact that not only did he not give any security for the payment of  the amount loaned to him  but that he has also refused to pay the said amount. His claim that he could not pay the loan “because circumstances . . . did not allow it” and that, because of  the passage of time, “he somehow forgot about his obligation” only underscores his blatant disregard of his obligation which reflects on his honesty and candor. Whether or not an attorney who was engaged on a contingent fee basis may, in order to collect his fees, prosecute an appeal despite his client's refusal to appeal the decision of the trial court. •

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A practicing attorney, entered into a written agreement with the private respondent to appear as her counsel in a petition for probate of the holographic will. Under the will, a piece of real property at Sales Street, Quiapo, Manila, was bequeathed to private respondent. It was agreed that the attorney’s contigent fee would be thirty-five per cent (35%) of the property that private respondent may receive upon the probate of the will. The payment of his fees is contingent and dependent upon the successful probate of the holographic will.  Since the petition for probate was dismissed by the lower court, the contingency did not occur. Attorney Leviste is not entitled to his fee. -  Leviste v. CA, G.R. No. L-29184 [1989]

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Is the right of a client to enter into a compromise agreement without the consent of his lawyer defeated by a contrary written contract ? •

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It appears from the record that on July 31, 1921, the respondents by means of a written contract, retained the petitioner to represent them as their lawyer. The contract fixed the petitioner's fee at P200 in advance with an additional contigent fee of P1,300. It was also provided in the contract that respondent should not compromise the claim against the defendant in the case without express consent of his lawyer. Through the sole effort of respondents the case was dismissed without notice to their counsel .

Right of a client to compromise suit • The client has also an undoubted right to compromise a suit without the intervention of his lawyer. • Though there is a valid agreement for the payment to the attorney of a large proportion of the sum recovered in case of success this does not give the attorney such an interest in the cause of  action that it prevents plaintiff from compromising the suit. –  Rustia v. The Judge of First Instance of Batangas, G.R. No. L19695 November 17, 1922 We have recently held that a client has always the right to settle • his cause of action  and stop litigation at any stage of the proceeding, subject, however, to the right of the attorney to receive compensation for services rendered. -  Aro v. The Hon.  Nañawa, G.R. No. L-24163 [1969] Applies only in civil cases • Rule 1.04 - A lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement. Limitation of client’s right to compromise suit

While We here reaffirm the rule that "the client has an undoubted right to compromise a suit without the intervention of his lawyer", We hold that when such compromise is entered into in fraud of  the lawyer, with intent to deprive him of the fees justly due him, the compromise must be subject to the said fees, and that when it is evident that the said fraud is committed in confabulation with the adverse party who had knowledge of the lawyer's contingent interest or such interest appears of record and who would benefit under such compromise, the better practice is to settle the matter of the attorney's fees in the same proceeding , after hearing all the affected parties and without prejudice to the finality of the compromise in so far as it does not adversely affect the rights of the lawyer. -  Aro v. The Hon. Na ñawa, G.R. No. L24163 [1969]

Quantum meruit • The principle of quantum meruit (as much as he deserves) may be a basis for determining the reasonable amount of attorney’s fees. • Quantum meruit is a device to prevent undue enrichment based on the equitable postulate that it is unjust for a person to retain benefit without paying for it. It is applicable even if there was a formal written contract for attorney’s fees as long as the agreed fee was found by the court to be unconscionable. - Atty. Orocio v. Angulan et. al., G.R. No. 179892-93, January 30, 2009 2 purposes of application Quantum meruit •

The recovery of attorney’s fees on this basis is permitted, as in this case, where there is no express agreement for the payment of  attorney’s fees. Basically, it is a legal mechanism which prevents an unscrupulous client from running away with the fruits of  the legal services of counsel without paying for it. In the same vein, it avoids unjust enrichment on the part of the lawyer himself . - Pineda v. Atty. De Jesus, et. al. G.R. No. 155224 August  23, 2006 

When is Quantum meruit authorized •

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(1) there is no express contract for payment of attorney's fees agreed upon between the lawyer and the client; (2) when although there is a formal contract for attorney's fees, the fees stipulated are found unconscionable or unreasonable by the court; and (3) when the contract for attorney's fee's is void due to purely formal defects of execution; (4) when the counsel, for justifiable cause, was not able to finish the case to its conclusion; (5) when lawyer and client disregard the contract for attorney's fees, -  Rilloza, et. al. v. Eastern Telecommunications Phils., Inc., G.R. No. 104600 [1999]

Factors for application of quantum meruit •

In fixing a reasonable compensation for the services rendered by a lawyer on the basis of quantum meruit, factors such as the time spent, and extent of services rendered; novelty and difficulty of the questions involved; importance of the subject matter; skill demanded; probability of losing other employment as a result of  acceptance of the proferred case; customary charges for similar services; amount involved in the controversy and the benefits resulting to the client; certainty of compensation; character of  employment; and professional standing of the lawyer, may be considered. (Atty. Orocio v. Angulan et. al., G.R. No. 179892-93,  January 30, 2009)

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Champertous contract • "1. On all commission or attorney’s fees that we shall receive from our clients by virtue of the collection that we shall be able to effect on their accounts, we shall divide fifty-fifty. Likewise you are entitled to commission, 50/50 from domestic, inheritance and commercial from our said clients or in any criminal cases where they are involved.” • We hold that the said agreement is void because it was tantamount to malpractice  which is "the practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers" Sec. 27, Rule 138, Rules of Court). Malpractice ordinarily refers to any malfeasance or dereliction of  duty committed by a lawyer. Section 27 gives a special and technical meaning to the term "malpractice" (Act No. 2828, amending sec. 21 of Act No. 190). – Tan Tek Beng v. David, A.C.  No. 1261. December 29, 1983 Agreement to pay all expenses of proceedings •

The court shall fix the amount In fixing a reasonable compensation for the services rendered by a • lawyer on the basis of quantum meruit , the elements to be considered are generally (1) the importance of the subject matter in controversy, (2) the extent of services rendered, and (3) the professional standing of the lawyer.

A determination of these factors would indispensably require nothing less than a full-blown trial where private respondents can adduce evidence to establish the right to lawful attorney's fees and for petitioner to oppose or refute the same. The trial court has the principal task of fixing the amount of attorney's fees. Hence, the necessity of a hearing is beyond cavil. - Rilloza, et. al. v.  Eastern Telecommunications Phils., Inc., G.R. No. 104600 [1999]

An agreement whereby an attorney agrees to pay expenses of  proceedings to enforce the client's rights is champertous [JBP Holding Corp. v. U.S. 166 F. Supp. 324 (1958)]. Such agreements are against public policy especially where, as in this case, the attorney has agreed to carry on the action at his own expense in consideration of some bargain to have part of the thing in dispute [See Sampliner v. Motion Pictures Patents Co., et al., 255 F. 242 (1918)]. The execution of these contracts violates the fiduciary relationship between the lawyer and his client , for which the

former must incur administrative sanctions. -  Atty. Orocio v.  Angulan et. al., G.R. No. 179892-93, January 30, 2009

Charging lien •

Funding litigation “[A]s long as litigation and access to the courts remain expensive, • then anyone who has a right that stands in need of vindication should be able to obtain funding from anyone willing to offer it and on whatever terms it is offered.” -  Neuberger, From Barretry, Maintenance and Champerty to  Litigation Funding, Speech at Gray’s Inn, May 8, 2013. Pay the law firm not the handling lawyer

When a client employs the services of a law firm, he does not employ the services of the lawyer who is assigned to personally handle the case. Rather, he employs the entire law firm. In the event that the counsel appearing for the client resigns, the firm is bound to provide a replacement. - Rilloza, et. al. v. Eastern Telecommunications Phils., Inc., G.R. No. 104600 [1999] •

Retaining lien • Rule 138 Sec. 37. Attorney's liens. — An attorney shall have a lien upon the funds, documents and papers of his client, which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof. He shall also have a lien to the same extent upon all judgments for the payment of  money, and executions issued in pursuance of such judgments, which he has secured in a litigation of his client, from and after the time when he shall have caused a statement of his claim of such lien to be entered upon the records of the court rendering such  judgment, or issuing such execution, and shall have caused written notice thereof to be delivered to his client and to the adverse party; and he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his just fees and disbursements."

Rule 138 Section 37. xxx He shall also have a lien to the same extent upon all judgments for the payment of money, and executions issued in pursuance of such judgments , which he has secured in a litigation of his client, from and after the time when he shall have caused a statement of his claim of such lien to be entered upon the records of the court rendering such judgment, or issuing such execution, and shall have caused written notice thereof to be delivered to his client and to the adverse party; and he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his just fees and disbursements."

There must be a favorable judgment A charging lien to be enforceable as security for the payment of  • attorney'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 attorney in favor of his client. A charging lien presupposes that the attorney has secured a favorable money  judgment for his client. -  Rilloza, et. al. v. Eastern Telecommunications Phils., Inc., G.R. No. 104600 [1999] The following are the circumstances to be considered in determining the compensation of an attorney 1. the amount and character of the services rendered; 2. the labor, time, and trouble involved; 3. the nature and importance of the litigation or business in which the services were rendered; the responsibility imposed; 4. the amount of money or the value of the property affected by the controversy, or involved in the employment, 5. the skill and experience called for in the performance of the services; 6. the professional character and social standing of the attorney; 7. the results secured; and

8. whether or not the fee is absolute or contingent, it being a recognized rule that an attorney may properly charge a much a larger fee when it is to be contingent that when it is not. 9. The financial ability of the defendant may also be considered not to enhance the amount above a reasonable compensation, but to determine whether or not he is able to pay a fair and just compensation for the services rendered, or as incident in ascertaining the importance and gravity of the interests involved in the litigation. Forum does not qualify payment of compensation •

We have noted in the beginning that the services here were rendered in a case of an administrative nature. But that does not alter the application of the proper rule:

Professional services, to prepare and advocate just claims for compensation, are as legitimate as services rendered in court in arguing a cause to convince a court or jury that the claim presented or the defense set up against a claim presented by the other party ought to be allowed or rejected. Parties in such cases require advocates; and the legal profession must have a right to accept such employment and to receive compensation for their services.  –  De Guzman v. Visayan  Rapid Transport Co. Inc. G.R. No. 46396 September 30, 1939 Written contract is not required to prove lawyer-client relationship The absence of a written contract will not preclude the finding that • there was a professional relationship which merits attorney's fees for professional services rendered. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied. To establish the relation, it is sufficient that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession. An acceptance of the relation is implied on the part of the attorney from his acting on behalf of his client in pursuance of a request from the latter. - Dee vs. Court of Appeals, G.R. No. 77439, August  24, 1989

Options to enforce right to professional fees •

A lawyer may enforce his right to his fees by filing the necessary petition as an incident of the main action in which his services were rendered or in an independent suit against his client. The former is preferable to avoid multiplicity of suits. - Pineda v.  Atty. De Jesus, et. al. G.R. No. 155224 August 23, 2006 

Only reason to file suit •

Rule 20.4 of the Code of Professional Responsibility advises lawyers to avoid controversies with clients concerning their compensation and to resort to judicial action only to prevent imposition, injustice or fraud. Suits to collect fees should be avoided and should be filed only when circumstances force lawyers to resort to it. - Pineda v. Atty. De Jesus, et. al. G.R. No. 155224 August 23, 2006 

Two commonly accepted concepts of attorney’s fees • In its ordinary concept, an attorney’s fee is the reasonable compensation paid to a lawyer by his client for the legal services he has rendered to the latter. The basis of this compensation is the fact of his employment by and his agreement with the client. In its extraordinary concept, an attorney’s fee is an indemnity for • damages ordered by the court to be paid by the losing party in a litigation. The basis of this is any of the cases provided by law where such award can be made, such as those authorized in Article 2208, Civil Code, and is payable not to the lawyer but to the client, unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof. - Traders  Royal Bank Employees Union-Independent v. NLRC G.R. No. 120592. March 14, 1997  Award of (extraordinary) attorney’s fee is discretionary • The power of this Court to reduce or even delete the award of  attorneys’ fees cannot be denied . Lawyers are officers of the

Court and they participate in the fundamental function of  administering justice. When they took their oath, they submitted themselves to the authority of the Court and subjected their professional fees to judicial control. – Pineda v. Atty. De Jesus, et. al. G.R. No. 155224 August 23, 2006 Contingent fee agreement does not violate Article 1491(5) of the NCC The contract of services did not violate said provision of law. • Article 1491 of the Civil Code, specifically paragraph 5 thereof, prohibits lawyers from acquiring by purchase even at a public or  judicial auction, properties and rights which are the objects of  litigation in which they may take part by virtue of their profession. The said prohibition, however, applies only if the sale or assignment of the property takes place during the pendency of  the litigation involving the client's property. • Hence, a contract between a lawyer and his client stipulating a contingent fee is not covered by said prohibition under Article 1491 (5) of the Civil Code because the payment of said fee is not made during the pendency of the litigation but only after judgment has been rendered in the case handled by the lawyer. In fact, under the 1988 Code of Professional Responsibility, a lawyer may have a lien over funds and property of his client and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements. - Fabillo and Tana v. IAC G.R. No. L-68838  [1991] Mere demand for delivery of the litigated property is not unethical •

In the instant case, there was no actual acquisition of the property in litigation since the respondent only made a written demand for its delivery which the complainant refused to comply. Mere demand for delivery of the litigated property does not cause the transfer of ownership , hence, not a prohibited transaction within the contemplation of Article 1491. -  Ramos v. Atty. Ngaseo,  A.C. No. 6210 [2004]

Commission/referral fees prohibited • By openly admitting he divided the Php70,000.00 to other individuals as commission/referral fees respondent violated Rule 9.02, Canon 9 of the Code of Professional Responsibility which provides that a lawyer shall not divide or stipulate to divide a fee for legal services with persons not licensed to practice law.  Lijauco v. Atty. Terrado, A.C. No. 6317 [2006]

CANON 9 - A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY, ASSIST IN THE UNAUTHORIZED PRACTICE OF LAW. 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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Quality of legal service should not vary if rendered for free It is true that he is a court-appointed counsel. But we do say that as • such counsel de oficio , he has as high a duty to the accused as one employed and paid by defendant himself . Because, as in the case of the latter, he must exercise his best efforts and professional ability in behalf of the person assigned to his care. His is to render effective assistance. The accused defendant expects of him due diligence, not mere perfunctory representation. We do not accept the paradox that responsibility is less where the defended party is poor. - In Re: Atty. Adriano, G.R. No. L-26868 [1969]

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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.

Case law • Mr. Culpepper sent Mr. Cole a letter in which he confirmed that he would accept the representation on a contingent fee basis of  one-third "of whatever additional property or money we can get for you. • After negotiation between Mr. Culpepper and counsel for the estate of Mr. Cole's mother, Mr. Cole was offered property worth $21,600.03 over and above what he would have received under the terms of the decedent's will. Mr. Culpepper thought the compromise was reasonable and recommended to Mr. Cole that he accept the offer. However, Mr. Cole refused to settle his claim for that amount, believing he was entitled to a larger share of  his mother's succession as a forced heir . When Mr. Culpepper refused to file suit in the matter, Mr. Cole terminated his representation. • Pursuant to the parties' agreement, Mr. Culpepper is entitled to one-third "of whatever additional property or money" he obtained on behalf of Mr. Cole. It is undisputed that Mr. Cole recovered no additional property or money as a result of the litigation against his mother's estate. Because Mr. Cole obtained no recovery, it follows that Mr. Culpepper is not entitled to any contingent fee. • Nonetheless, Mr. Culpepper urges us to find that his contingency should attach to the settlement offer he obtained on behalf of his client, even though his client refused to accept that offer. According to Mr. Culpepper, he did the work for which Mr. Cole retained him, and he is therefore entitled to one-third of the amount offered in settlement, notwithstanding Mr. Cole's rejection of the settlement offer. Decision

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To allow Mr. Culpepper to recover a contingent fee under these circumstances would penalize Mr. Cole for exercising his right to reject the settlement . We find no statutory or jurisprudential support for such a proposition. Indeed, this court has rejected any interpretation of the Rules of Professional Conduct which would place restrictions on the client's fundamental right to control the case. In summary, we find that Mr. Culpepper did not obtain any recovery on behalf of Mr. Cole. In the absence of a recovery, it follows that Mr. Culpepper cannot collect a contingent fee for his services. - Culpepper v. Cole 929 So.2d 1224 [2006]

Acceptance fee is not necessary to establish lawyer-client relationship • A lawyer-client relationship was established from the very first moment complainant asked respondent for legal advice regarding the former’s business. To constitute professional employment, it is not essential that the client employed the attorney professionally on any previous occasion. It is not necessary that any retainer be paid, promised, or charged; neither is it material that the attorney consulted did not afterward handle the case for which his service had been sought. - Burbe v. Atty. Magulta AC No. 99-634. June 10, 2002 “Money down first” policy is unethical The impropriety lies in the fact that she suggested that complainant • borrow money from Domingo Natavio for the payment thereof. This act impresses upon the Court that respondent would do nothing to the cause of complainant’s mother-in-law unless payment of the acceptance fee is made . Her duty to render legal services to her client with competence and diligence should not depend on the payment of acceptance fee . – Ceniza v. Atty.  Rubia, A.C. No. 6166, October 2, 2009 • I, do solemnly swear that xxx I will delay no man for money xxx.

spent for that particular purpose. If the lawyer does not use the money for the intended purpose, he must immediately return the money to his client. -  Navarro & Presbitero, A.C. No. 9872,  January 28, 2014

Establishment of lawyer-client relationship not influenced by personal affiliation •

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Respondent takes further refuge in the intimate and close relationship existing between himself and the complainant’s family on the basis of which his legal services were purely gratuitous or “simply an act of a friend for a friend” with “no consideration involved.” Unfortunately, his efforts to redeem the foreclosed property, as already stated, did not produce the desired result because the mortgagee “would not budge anymore” and “would not accept the sum offered.” Thus, the respondent concluded that there was, strictly speaking, no attorney-client [relationship] existing between them. Rather, right from the start[,] everything was sort of personal, he added. xxx This contention has no merit. -  Junio v. Atty. Grupo, A.C. No. 5020. December 18, 2001

Right to a lien versus duty to account • Lawyers who convert the funds entrusted to them are in gross violation of professional ethics and are guilty of betrayal of public confidence in the legal profession. It may be true that they have a lien upon the client’s funds, documents and other papers that have lawfully come into their possession; that they may retain them until their lawful fees and disbursements have been paid; and that they may apply such funds to the satisfaction of such fees and disbursements. However, these considerations do not relieve them of their duty to promptly account for the moneys they received . Their failure to do so constitutes professional misconduct. In any event, they must still exert all effort to protect their client’s interest within the bounds of law. –  Burbe v. Atty.  Magulta AC No. 99-634. June 10, 2002 Duty of accounting • When a lawyer receives money from a client for a particular purpose involving the client-attorney relationship, he is bound to render an accounting to the client showing that the money was

Change of attorney • •

Section 26 of Rule 138 of the Revised Rules of Court provides: "Sec. 26. Change of attorneys -- An attorney may retire at any time from any action or special proceeding, by the written consent of his client filed in court. He may also retire at any time from an action or special proceeding, without the consent of his client , should the court, on notice to the client and attorney, and on hearing, determine that he ought to be allowed to retire. In case of  substitution, the name of the attorney newly employed shall be entered on the docket of the court in place of the former one, and written notice of the change shall be given to the adverse party.

Withdrawal of counsel •

A lawyer may retire at any time from any action or special proceeding with the written consent of his client filed in court and copy thereof served upon the adverse party. Should the client refuse to give his consent , the lawyer must file an application with the court. The court, on notice to the client and adverse party, shall The determine whether he ought to be allowed to retire. application for withdrawal must be based on a good cause. Orcino v. Atty. Gaspar, A.C. No. 3773. September 24, 1997 

Grounds for withdrawal • Respondent's withdrawal was made on the ground that "there no longer exist[ed] the xxx confidence" between them and that there had been "serious diffferences between them relating to the manner of private prosecution.” - Orcino v. Atty. Gaspar, A.C. No. 3773. September 24, 1997  Court approval required before counsel can withdraw

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Assuming, nevertheless, that respondent was justified in terminating his services, he, however, cannot just do so and leave complainant in the cold unprotected. The lawyer has no right to presume that his petition for withdrawal will be granted by the court. Until his withdrawal shall have been approved, the lawyer remains counsel of record who is expected by his client as well as by the court to do what the interests of his client require. He must still appear on the date of hearing for the attorney-client relation does not terminate formally until there is a withdrawal of record. – Orcino v. Atty. Gaspar, A.C. No. 3773. September 24, 1997 

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The client and his lawyer may enter into a written contract whereby the latter would be paid attorney’s fees only if the suit or litigation ends favorably to the client. This is called a contingency fee contract . The amount of attorney’s fees in this contract may be on a percentage basis, and a much higher compensation is allowed in consideration of the risk that the lawyer may get nothing if the suit fails. In the case at bar, the non-EPIRA separated members and petitioner voluntarily entered into a contingency fee contract whereby petitioner did not receive any acceptance fee or appearance/meeting fee. -  Atty. Orocio v. Angulan et. al., G.R. No. 179892-93 [2009]

Why contingency fee is allowed Contingent fee contracts are permitted in this jurisdiction because • they redound to the benefit of the poor client and the lawyer “especially in cases where the client has meritorious cause of  action, but no means with which to pay for legal services  unless he can, with the sanction of law, make a contract for a contingent fee to be paid out of the proceeds of litigation. Oftentimes, the contingent fee arrangement is the only means by which the poor clients can have their rights vindicated and upheld.”-  Atty. Orocio v. Angulan et. al., G.R. No. 179892-93 [2009]

Contingent fee arrangement must be written • It bears to stress that a contingent fee arrangement is valid in this  jurisdiction and is generally recognized as valid and binding but must be laid down in an express contract. – Felicisima Mendoza vda. De Robosa v. Atty. Mendoza & Atty. Navarro, Jr., A.C. no. 6056, September 09, 2015 Limitations of a contingency agreement • However, in cases where contingent fees are sanctioned by law, the same should be reasonable under all the circumstances of the case, and should always be subject to the supervision of a court , as to its reasonableness, such that under Canon 20 of the Code of  Professional Responsibility, a lawyer is tasked to charge only fair and reasonable fees. -  Atty. Orocio v. Angulan et. al., G.R. No. 179892-93 [2009] Contingent fee to a witness •

Witnesses should always testify truthfully and should be free from any financial inducements that might tempt them to do otherwise. A lawyer should not pay or agree to pay a non-expert witness an amount in excess of reimbursement for expenses and financial loss incident to being a witness ; however, a lawyer may pay or agree to pay an expert witness a reasonable fee for services as an expert. But in no event should a lawyer pay or agree to pay a contingent fee to any witness. – Swafford v.  Harris, 967 S.W.2d 319 (1998)

When is an attorney’s fees unconscionable? Attorney’s fees are unconscionable if they affront one’s sense of  •  justice, decency or reasonableness, or if they are so disproportionate to the value of the services rendered. In such a case, courts are empowered to reduce the attorney’s fee or fix a reasonable amount thereof taking into consideration the surrounding circumstances and the established parameters. -  Atty. Orocio v. Angulan et. al., G.R. No. 179892-93 [2009]

Lawyer’s compensation for professional services rendered is subject to the supervision of the court • Under Section 24, Rule 138 of the Rules of Court, a written contract for services shall control the amount to be paid therefor unless found by the court to be unconscionable or unreasonable. • It follows that a lawyer’s compensation for professional services rendered is subject to the supervision of the court, not just to guarantee that the fees he charges and receives remain reasonable and commensurate with the services rendered, but also to maintain the dignity and integrity of the legal profession to which he belongs. Upon taking his attorney’s oath as an officer of  the court, a lawyer submits himself to the authority of the courts to regulate his right to charge professional fees . -  Atty. Orocio v. Angulan et. al., G.R. No. 179892-93 [2009] CHAPTER 5 The lawyer and the “[Law] Firm” Choice of a Firm name Rule 3.02 of the Code of Professional Responsibility which states that “in the choice of a firm name, no false, misleading or assumed name shall be used .” No name not belonging to any of the partners or associates may be used in the firm name for any purpose. - PP v. Gonzalez, Jr., G.R. No. 139542 June 10, 2003 •

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Negligence of clerks in a law firm Time and again the Court has admonished law firms to adopt a system of distributing pleadings and notices, whereby lawyers working therein receive promptly notices and pleadings intended for them, so that they will always be informed of the status of their cases. Their Court has also often repeated that the negligence of clerks which adversely affect the cases handled by lawyers, is binding •

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upon the latter. -  B.R. Sebastian Enterprises, Inc. v. CA, G.R. No.  L-41862 [1992] Law firm represents the client Respondent judge should not have accommodated so many Motions for Postponement filed by the then ailing Atty. Rosendo Castillo Sr. because a law firm (Castillo & Castillo), to which the latter belonged, was really representing the defendants, there certainly were other competent lawyers who could have handled the matter. – Sps. Reaport v. Judge Mariano, A.M. No.  MTJ-00-1253. July 11, 2001 •

Main and branch office constitute one personality Petitioner's counsel was and is the firm of Ledesma, Saludo and Associates (and not any particular member or associate of that firm) which firm happens to have a main office in Makati and a branch office in Cebu City. The Court notes that both the main and branch offices operate under one and the same name, Saludo Ledesma and Associates. Having represented itself to the public as comprising a single firm, LSA should not be allowed at this point to pretend that its main office and its branch office in effect constitute separate law firms with separate and distinct personalities and responsibilities. Ouano Arrastre Service Inc. v.  Judge Aleonor, G.R. No. 97664 October 10, 1991 •

Death of a handling lawyer of the firm Hence, the death of the latter did not extinguish the lawyer-client relationship between said firm and petitioner. -  B.R. Sebastian  Enterprises, Inc. v. CA, G.R. No. L-41862 [1992] •

Duties of Firms and Lawyers When Someone Leaves A. Ethical Obligation to Communicate to Certain clients B. Trust Account Monies C. Fee Divisions In General D. Files E. Phones •

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Partners and Associates Leaving Must Abide By Fiduciary Duties to Firm

Ethical Obligation to Communicate to Certain Clients 1) lawyers have a duty to tell “their” clients that they are leaving. 2) clients are not chattels – the firm and departing lawyer cannot decide which clients can stay and which can go – the clients decide. Rule of confidentiality in a law firm 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. •

Duty to notify a client “The departing lawyer  and responsible members of the law firm  who remain have an ethical obligation to assure that prompt notice is given to clients on whose active matters she currently is working.” 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 . •

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Lawyer who has had “significant personal contacts” A departing lawyer who has had “significant personal contacts” with the client, should inform the client that the lawyer is leaving the firm. •

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Note: this does not mean that an associate who met a client once or twice and has prepared discovery requests has had “significant personal contacts” – the standard is that if the client were asked “which lawyer(s) at the firm represents you?” the lawyers mentioned would be those that have had“significant personal contacts.”

Ethical obligations of departing lawyers

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In addition to the ethical obligations departing lawyers have, they also must avoid interfering with the contracts  the firm has with existing clients. However, the caution to avoid stealing clients must be balanced against the departing lawyer’s ethical obligation to notify clients that an attorney is departing.

How to tell clients The preferred method of advising firm clients about the impending departure of an attorney is a joint letter from the firm and departing lawyer to all clients with whom the lawyer had significant personal contacts. •

A letter should advise the clients When the lawyer is leaving The client has the option of going with the lawyer, staying with the firm, or getting a new firm How any advance fee deposit will be treated A place for the client to sign and return the letter, with instructions on where their file should go. •

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Separate letters may be sent by the lawyer (or the firm) to clients with whom the departing lawyer had substantial personal contact as long as: 1) the letters do not disparage the firm or the lawyer; and 2) the letters do not involve improper solicitation •

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Trust Account Monies Clients that have given the firm an advance fee or advance cost deposit take the money with them (less earned fees and costs), if  they go with the departing lawyer. While simple in theory, application sometimes can be p roblematic. The“old” firm should write a check, consistent with the written instructions of the client, to either the client or to the trust account for the departed lawyer’s new firm. •

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Fee Divisions In General In contingent fee cases   where some or much of the work was performed at the existing firm, but the case is going with the departing lawyer, the firm and lawyer must agree how the contingent fee will be apportioned among them, based upon their respective contributions to the case (i.e., quantum meruit ) or based upon terms in the partnership agreement . But can a departing lawyer keep all of a contingent fee case that came into the old firm but ultimately settled when the lawyer was at a new firm? Probably not, according to several cases. A lawyer may be entitled to only his partnership portion of the fees earned on a case, even if he performed most of the work after the dissolution of the firm. Nevertheless, some courts will find that when a lawyer leaves a firm and takes a case with him, he may be entitled to the quantum meruit value of the work he performed.

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Client’s interests not be prejudiced when the attorney/client relationship is terminated Do not hold client files hostage, even if the client that is leaving with the lawyer owes the current firm money. Model Rule 1.16(d) requires that the client’s interests not be prejudiced when the attorney/client relationship is terminated. Have the client or a runner from the departed lawyer’s new firm sign for the file, if it is going to the new firm. Also, it is appropriate to request in a litigation matter that the departed lawyer file a substitution of counsel or at least notification of address change with the court, to assure that the old firm is still not listed as counsel of record. •

And remember that the client file is client property, so you cannot charge the client for the cost of downloading everything to disks….

Phones It is ethically inappropriate to have the receptionist tell callers who are looking for a lawyer who recently left the firm “we don’t know where he is.” That game is not professional and not acceptable. Assure that all staff are instructed to provide the departed lawyer’s phone number and mailing address. Also, assign a partner to answer any client inquiries. Moreover, mail should be forwarded to the departed lawyer. •

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Partners and Associates Leaving Must Abide By Fiduciary Duties to Firm It is worth noting again that lawyers who are leaving a firm have certain fiduciary duties to the firm to not interfere with the contracts that the firm has with existing clients, to not use firm resources to set up their new firm , and to not attempt to steal away associates and staff   while the lawyers are still working for the firm. - Lynda C. Shely •

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Client’s file = paper and electronic documents When a client asks for their file, you must give them both the paper and the electronic documents – including emails. •

A lawyer whose spouse is associated with a firm representing an opposing party [T]he lawyer should advise the client of all circumstances that might cause one to question the undivided loyalty of the law firm and let the client make the decision as to its employment. If the client prefers not to employ a law firm containing a lawyer whose spouse is associated with a firm representing an opposing party, that decision should be respected. •

WON the firm of “Velasquez, Rodriguez, Respicio, Ramos, Nidea, and Prado”may call itself “A law Firm Of St. Thomas More and Associate Members”. It implies that St. Thomas More is a Law Firm when in fact it is not it would also convey to the public the impression that the lawyers are members of the law firm which does not exist. To the public, it would seem that the purpose or intention of adding “The Law Firm of St. Thomas More and Associates Members” is to bask  in the name of a Saint, although that may not really, be the pu rpose or intention of the lawyers. The appellation only tends to confuse the public and in a way demean both the saints and the legal profession whose members must depend on their own name and record and merit and not on the name/glory of other persons living or dead. - PP v. Gonzalez, Jr., G.R. No. 139542 June 10, 2003

stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of  which has been acquired in such capacity;

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Duties When Switching Firms Duties of Lawyers Interviewing With Other Firms Screening an “Infected” Lateral Hire Death of a Lawyer •

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CHAPTER 6 Confidentiality & privilege communications between lawyers and clients CANON 15 - A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his clients • 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 130 Sec. 24.Disqualification by reason of privileged • communication.  — The following persons cannot testify as to matters learned in confidence: (b) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary,

Canon 21 – A lawyer shall preserve the confidence and secrets of his client even after the attorney-client relation is terminated 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. 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. Rule 138 of the Rules of Court

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Sec. 20. It is the duty of an attorney: (e) to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client's business except from him or with his knowledge and approval. 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.

Revised Penal Code Art. 209. Betrayal of trust by an attorney or solicitor. — Revelation • of secrets. — In addition to the proper administrative action, xxx shall be imposed upon any attorney-at-law or solicitor ( procurador judicial) who, by any malicious breach of professional duty or of inexcusable negligence or ignorance, shall prejudice his client, or reveal any of the secrets  of the latter learned by him in his professional capacity. The same penalty shall be imposed upon an attorney-at-law or • solicitor (procurador judicial) who, having undertaken the defense of a client  or having received confidential information from said client in a case, shall undertake the defense of the opposing party in the same case, without the consent of his first client. Confidentiality is not the same as the attorney-client privilege • The lawyer’s duty of confidentiality (an ethical duty) is not the same as the client’s right to assert the attorney client privilege (a rule of evidence). The attorney/client privilege extends only to communications • between lawyers and clients relating to legal services and which the client reasonably believes is confidential. Any disclosure may waive the attorney/client privilege as to other • otherwise protected matters; not so with the duty of confidentiality. The privilege applies only to limiting testimony in a legal • proceeding. The duty of confidentiality limits voluntary disclosures anywhere.

Why lawyer-client relationships requires confidentiality • Considerations favoring confidentially in lawyer-client relationships are many and serve several constitutional and policy concerns. In the constitutional sphere, the privilege gives flesh to one of the most sacrosanct rights available to the accused, the right to counsel. If a client were made to choose between legal representation without effective communication and disclosure and legal representation with all his secrets revealed then he might be compelled, in some instances, to either opt to stay away from the  judicial system or to lose the right to counsel. If the price of  disclosure is too high, or if it amounts to self incrimination, then the flow of information would be curtailed thereby rendering the right practically nugatory. The threat this represents against another sacrosanct individual right, the right to be presumed innocent is at once self-evident. -  Regala et. al. v. Sandiganbayan, G. R. No. 105938 [1996]  Extent of Confidentiality Rule The confidentiality rule, for example, applies not only to matters • communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. Lawyer’s duty to keep the confidentiality An effective lawyer-client relationship is  largely dependent upon • the degree of confidence which exists between lawyer and client which in turn requires a situation which encourages a dynamic and fruitful exchange and flow of information. It necessarily follows that in order to attain effective representation, the lawyer must invoke the privilege not as a matter of option but as a matter of duty and professional responsibility. - Regala et.  al. v. Sandiganbayan, G. R. No. 105938 [1996] 

Duty of lawyer when receiving a material not intended for him A lawyer who receives on an unauthorized basis materials of an • adverse party that she knows to be privileged or confidential should, upon recognizing the privileged or confidential nature of  the materials, either refrain from reviewing such materials or review them only to the extent required to determine how appropriately to proceed; •

She should notify her adversary's lawyer that she has such materials and should either follow instructions of the adversary's lawyer with respect to the disposition of the materials, or refrain from using the materials until a definitive resolution of the proper disposition of the materials is obtained from a court. - ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 382 (1994).

General Rule on client’s identity As a matter of public policy, a client's identity should not be • shrouded in mystery. Under this premise, the general rule in our  jurisdiction as well as in the United States is that a lawyer  may not invoke the privilege and refuse to divulge the name or identity of  this client. -  Regala et. al. v. Sandiganbayan, G. R. No. 105938  [1996]  Reasons advanced for the general rule First, the court has a right to know that the client whose privileged • information is sought to be protected is flesh and blood. • Second, the privilege begins to exist only after the attorneyclient relationship has been established. The attorney-client privilege does not attach until there is a client. Third, the privilege generally pertains to the subject matter of  • the relationship. Finally, due process considerations require that the opposing • party should, as a general rule, know his adversary . "A party suing or sued is entitled to know who his opponent is." He cannot be obliged to grope in the dark against unkn own forces.

Exceptions 1) Client identity is privileged where a strong probability exists that revealing the client's name would implicate that client in the very activity for which he sought the lawyer's advice. 2) Where disclosure would open the client to civil liability; his identity is privileged. 3) Where the government's lawyers have no case against an attorney's client unless, by revealing the client's name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime, the client's name is privileged.  Regala et. al. v. Sandiganbayan, G. R. No. 105938 [1996] •

Summarizing these exceptions, information relating to the identity of a client may fall within the ambit of the privilege when the client's name itself has an independent significance, such that disclosure would then reveal client confidences . -  Regala et. al. v. Sandiganbayan, G. R. No. 105938 [1996]

Communication to commit crime or fraud not privileged • "The reason of the principle which holds such communications not to be privileged is that it is not within the professional character of a lawyer to give advice upon such subjects , and that it is no part of the profession of an attorney or counselor at law to be advising persons as to how they may commit crimes or frauds , or how they may escape the consequences of contemplated crimes and frauds. The relation of attorney and client cannot exist for the purpose of  • counsel in concocting crimes. • The protection which the law affords to communications between attorney and client has reference to those which are legitimately and properly within the scope of a lawful employment, and does not extend to communications made in contemplation of a crime, or perpetration of a fraud. - Dissenting opinion, Regala et. al. v. Sandiganbayan, G. R. No. 105938 [1996]

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It does not extend to those made in contemplation of a crime or perpetration of a fraud. If the unlawful purpose is avowed, as in this case, the complainant’s alleged intention to bribe government officials in relation to his case, the communication is not covered by the privilege as the client does not consult the lawyer professionally. It is not within the profession of a lawyer to advise a client as to how he may commit a crime as a lawyer is not a gun for hire. Thus, the attorney-client privilege does not attach, there being no professional employment in the strict sense. Genato v. Atty. Silapan, A.C. No. 4078. July 14, 2003

Cause of client defense is not absolute Whatever the contours of the line between traditional lawyering • and criminal conduct, they must inevitably be drawn case-by-case. We refuse to accept the notion that lawyers may do anything, including violating the law, to zealously advocate their clients' interests and then avoid criminal prosecution by claiming that they were "just doing their job." - United States v. Cueto (7th Cir. 1998) 151 F.3d 620, 634 Permanent nature of duty to keep confidentiality The duty to maintain inviolate the client’s confidences and • secrets is not temporary but permanent. It is in effect perpetual for "it outlasts the lawyer’s employment" (Canon 37, Code of  Professional Responsibility) which means even after the relationship has been terminated, the duty to preserve the client’s confidences and secrets remains effective. This obligation to preserve the confidences and secrets of a client • arises at the inception of their relationship. 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 even survives the death of the client. – Genato v. Atty. Silapan, A.C. No. 4078. July 14, 2003

Secrets or confidential communications must be obtained in a lawyer-client relationship The alleged "secrets" of complainant were not specified by him in • his affidavit-complaint. Whatever facts alleged by respondent against complainant were not obtained by respondent in his professional capacity but as a redemptioner of a property originally owned by his deceased son and therefore, when respondent filed the complaint for estafa against herein complainant, which necessarily involved alleging facts that would constitute estafa, respondent was not, in any way, violating Canon 21. xxx To hold otherwise would be precluding any lawyer from instituting a case against anyone to protect his personal or proprietary interests. – Uy v. Atty. Gonzales, A.C. No. 5280, March 30, 2004 It must be stressed, however, that the privilege against disclosure • of confidential communications or information is limited only to communications which are legitimately and properly within the scope of a lawful employment of a lawyer.  - Genato v. Atty. Silapan, A.C. No. 4078. July 14, 2003 Starting point of duty of confidentiality The moment complainant approached the then receptive • respondent to seek legal advice, a veritable lawyer-client relationship evolved between the two. Such relationship imposes upon the lawyer certain restrictions circumscribed by the ethics of  the profession. Among the burdens of the relationship is that which enjoins the lawyer, respondent in this instance, to keep inviolate confidential information acquired or revealed during legal consultations. - Hadjula v. Atty. Madianda, A.C. No. 6711 [2007] This duty of confidentiality also extends to prospective clients • even though an attorney-client relationship is never established. Not a defense to justify breaching the duty of confidentiality 1. Lawyer not inclined to handle the client's case after consultation. 2. no formal professional engagement follows the consultation.

3. no contract whatsoever was executed by the parties to memorialize the relationship. - Hadjula v. Atty. Madianda, A.C. No. 6711 [2007] The essential factors to establish the existence of the attorneyclient privilege communication (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived. - Hadjula v. Atty. Madianda, A.C. No. 6711 [2007] Characteristics of the Attorney-Client Privilege 1. A-C privilege where legal advice is professionally sought from an attorney. 2. The client must intend the above communication to be confidential. 3. A-C privilege embraces all forms of communication and action. 4. As a general rule, A-C privilege also extends to the attorney’s secretary, stenographer, clerk or agent with reference to any fact required in such capacity. 5. The above duty is perpetual and is absolutely privileged from disclosure. Attorney-Client Privilege cannot be invoked 1. There is consent or waiver or client. 2. Such is required by law. 3. Such is made to protect the lawyer’s rights (i.e. to collect his fees or associates or by judicial action). 4. When such communication are made in contemplation of a crime or the perpetuation of a fraud.

The principle of client-lawyer confidentiality is given effect by related bodies of law 1. the attorney-client privilege, 2. the work product doctrine and 3. the rule of confidentiality established in professional ethics. •

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The attorney-client privilege and work-product doctrine apply in  judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations  other than those where evidence is sought from the lawyer through compulsion of law.

Confidentiality does not extend to partners and associates Lawyers in a firm may, in the course of the firm's practice, disclose • to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers. 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. Protection from third party This prohibition also applies to disclosures by a lawyer that do not • in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. Disclosure of the Client's Identity and Whereabouts The general rule is that a client's identity and whereabouts are not • covered by the attorney-client privilege, as opposed to the ethical duty of confidentiality. However, exceptions have been made if disclosure would • implicate the client in the criminal activity for which legal advice was sought or "if the net effect of the disclosure would be to reveal

the nature of a client communication." - Charles McCormick,  McCormick on Evidence § 90 (5th ed. 1999) •

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Lawyer must testify about identity of client who paid with counterfeit $100 bill. Client's name not considered confidential unless "intertwined" with confidential information or last link tying client to crime. -  Alexiou v. United States), 39 F.3d 973 (9th Cir. 1994) Client identity is privileged in exceptional cases when disclosure would provide "last link" in chain of evidence leading to conclusion that client committed crime, and would reveal confidential communication between lawyer and client; Client who accused divorce lawyer of improper sexual advances may not obtain client list in discovery. -  Brett v. Berkowitz, 706   A.2d 509 (Del. 1998)

As a rule a lawyer should challenge an order to disclose information about client In sum, the attorney-client privilege ordinarily will not cover the • information sought by a subpoena directed to a lawyer. Yet even when faced with a subpoena seeking fee information or a client's identity, the lawyer should generally assert the attorney-client privilege and obtain a court ruling rather than make his own determination whether the information is privileged. The existence of exceptions to the general rule holding that fee and client identity are not privileged, as well as the lawyer's ethical duty to oppose disclosure of information learned during a client's representation, make it advisable to follow this course of action. •

Lawyer for client sought in hit-and-run accident may withhold client's identity when disclosure would implicate client in criminal activity for which legal advice sought. -  Dietz v. Doe, 935 P.2d 611 (Wash. 1997)

Certain instances where a court order is not involved, courts have held the client's whereabouts p rotected Lawyer may not be compelled to disclose address of defendant • father in child custody proceeding when he specifically requested that lawyer not reveal the home address and telephone number of  the father and the name and address of the school the children were attending; information that the client requests be kept confidential is protected unless protection permits a fraud or crime or clearly frustrates the administration of justice. -  Brennan v. Brennan, 422 A2d 510 (Pa SuperCt 1980) Domestic relations case where confidentiality of address was • necessary for client safety. - Waldman v. Waldman,358 NE2d 521 (1976)

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A lawyer faced with a subpoena for information about a client must resist the subpoena if the lawyer's testimony or the document production would violate either the attorney-client privilege or the ethical duty of confidentiality   and the client does not consent to the disclosure . -  In re Grand Jury Witness, 695 F2d 359 (CA 9 1982); In re Grand Jury Subpoena (U.S.), 831 F2d 225 (CA 11 1987  A lawyer who receives a subpoena to testify about a client may file a motion to quash asserting the attorney-client privilege, along with any other possible grounds for refusing to comply. A subpoena duces tecum issued to a lawyer that makes no attempt whatsoever to confine its scope to relevant, nonprivileged matters is unenforceable and must be quashed. - U.S. v.  Horn, 976 F2d 1314 (CA9 1992)

Representing a fugitive • Assuming the client is indeed properly characterized as a fugitive, defense counsel must take into account the boundaries of  permissible advocacy. It bears noting that any physical act intended to harbor or conceal a fugitive so as to prevent his discovery or arrest arguably could constitute a separate criminal violation.

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A lawyer “is free to continue to give legal advice to [a fugitive] client and to represent him before the authorities, as long as [the lawyer] does nothing to aid the client to escape trial.

Client is under conditions of bail “Where a client is under conditions of bail and defies a lawful • court order to appear, his 'whereabouts' are not unqualifiedly protected by the attorney-client privilege, and the attorney may be compelled to disclose information of the client's whereabouts." Commonwealth v. Maguigan,511 A2d 1327 (Pa SupCt 1986) Lawyer who learned from client's wife that client had left with • suitcase for "parts unknown" had firm factual basis for believing client jumped bond and did not intend to appear for trial, thus had duty to advise court to avoid assisting in criminal act. - U.S. v.  DelCarpio-Cotrina,733 FSupp 95 (DC SFla 1990) •

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An attorney representing an individual who has violated the terms of bail  and fled the jurisdiction  arguably has an even greater obligation as an officer of the court to seek the prompt return of the client in compliance with a judicial release order. An attorney “may not assist the [fugitive] client in any way that the lawyer knows will further an illegal or fraudulent purpose.”- Association of the Bar of the City of New York Formal Opinion 1999-02 Where an attorney believes, but does not know, conduct to be illegal or fraudulent, the attorney may act on behalf of the fugitive client, but “only after assuring him or herself that there is reasonable support for an argument that the client’s intended use of the fruits of the representation will not further a criminal scheme or act . -  Association of the Bar of the City of New York  Formal Opinion 1999-02

Can the metal filing cabinet containing the records and documents of clients be subject of a search warrant? It is clear that the court could not and can not order the opening of  • the art metal filing cabinet in question because, it having been

proven that it belongs to the appellant attorney and that in it he keeps the records and documents of his clients, to do so would be in violation of his right as such attorney, since it would be tantamount to compelling him to disclose or divulge facts or things belonging to his clients, which should be kept secret, unless she is authorized by them to make such disclosure, it being a duty imposed by law upon an attorney to strictly preserve the secrets or communications made to him. -  PP v. Sy Juco, G.R. No. L-41957   August 28, 1937  CHAPTER 7 Conflict of interest in a regular lawyer-client relationship COI is everywhere • Conflicts of interest are not the exclusive headache  of large, urban, multi-office law firms. Conflicts of interest arise within and affect law practices of every size, geographical location and discipline. The number of clients, adverse parties, and interested non-parties with whom attorneys become involved throughout their careers is truly staggering and invariably underestimated. Extreme case of Conflict of Interest The most obvious conflicts of interest are those in which the • lawyer's personal interests clash with those of the client. Rule on Conflicting Interests It is generally the rule based on sound public policy that attorney • cannot represent diverse interest. It is highly improper to represent both sides of an issue. Competitor Conflicts Courts have found that a competitor conflict is present when the • lawyer attempts to represent two competitors on a material aspect of their competition. Whose interest?

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It is, of course, a hornbook proposition that it is the client , and not the lawyer, that defines the client's interests and instructs the lawyer about them.

Degree of involvement The greater the involvement in the client's affairs the greater the • danger that confidences (where such exist) will be revealed.

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“Closed file” conflicts Involve representation adverse to a former client in the same or • substantially related matters. Absolute prohibition from representation •  Hornilla case provides an absolute prohibition from representation with respect to opposing parties in the same case. In other words, a lawyer cannot change his representation from one • party to the latter's opponent in the same case, as in this case. – Tulio v. Atty. Buhangin, A.C. No. 7110, April 20, 2016 Doctrine of “imputed knowledge” Doctrine of imputed knowledge is based on the assumption that an • attorney, who has notice of matter affecting his client, has communicated the same to his principal in the course of  professional dealings. The doctrine applies regardless of whether or not the lawyer actually communicated to the client what he learned in his professional capacity, the attorney and his client being one judicial person. Knowledge of one member of a law firm will be imputed by • inference to all members of that firm; free flow of information within the partnership.

Preliminary conflict of interest check Whenever a prospective client seeking legal assistance contacts an • attorney, the attorney should politely but firmly decline to discuss

the matter in detail until a preliminary conflict of interest check can be performed. As the adjective suggests, preliminary conflict of interest checks should ideally be performed before the prospective client divulges additional confidential information which may conflict the attorney out of current or future representations. 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.

CANON 21 - A lawyer shall preserve the confidence and secrets of  his client even after the attorney-client relation is terminated 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 21.07 - A lawyer shall not reveal that he has been • consulted about a particular case except to avoid possible conflict of interest. General Rule in a law firm • 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. •

An information obtained from a client by a member or assistant of  a law firm is information imparted to the firm . This is not a mere fiction or an arbitrary rule; for such member or assistant, as in our case, not only acts in the name and interest of the firm, but his information, by the nature of his connection with the firm is available to his associates or employers. –  Hilado v. David, et.  Al., G.R. No. L-961, September 21, 1949

CANON 15 - A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his clients 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. 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 15.04. - A lawyer may, with the written consent of all • concerned, act as mediator, conciliator or arbitrator in settling disputes. 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. •

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.

Confidentiality of information is not relevant in COI The rule on conflict of interests covers not only cases in which • confidential communications have been confided but also those in which no confidence has been bestowed or will be used . -  Atty.  Jalandoni v. Atty. Villarosa, AC 5303, June 15, 2006  Unqualified opposing interest of new and former clients The rule prohibits a 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. - Atty. Jalandoni v. Atty. Villarosa, AC 5303, June 15, 2006  •

Another test of the inconsistency of interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client

or invite suspicion of unfaithfulness or double-dealing  in the performance thereof, and also whether he will be called upon in his new relation to use against his first client any knowledge acquire in the previous employment. •

The first part of the rule refers to cases in which the opposing parties are present clients either in the same action or in a totally unrelated case; the second part  pertains to those in which the adverse party against whom the attorney appears is his former client in a matter which is related, directly or indirectly , to the present controversy. -  Atty. Jalandoni v. Atty. Villarosa, AC 5303,  June 15, 2006 

Counsel of corporation cannot represent members of board of  directors After due deliberation on the wisdom of this doctrine, we are • sufficiently convinced that a lawyer engaged as counsel for a corporation cannot represent members of the same corporation’s board of directors in a derivative suit brought against them. To do so would be tantamount to representing conflicting interests, which is prohibited by the Code of Professional Responsibility.( Hornilla v. Atty. Salunat, A.C. No. 5804, July 1, 2003) Degree of adverse interest, intention or motive are not material An attorney owes to his client undivided allegiance. After being • retained and receiving the confidences of the client, he cannot, without the free and intelligent consent of his client, act both for his client and for one whose interest is adverse to, or conflicting with that of his client in the same general matter…. The prohibition stands even if the adverse interest is very slight ; neither is it material that the intention and motive of the attorney may have been honest-  Lim Jr. v. Atty. Villarosa, A.C. No. 5303,  June 15, 2006 As to who initiate engagement is immaterial

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To negate any culpability, respondent explained that he did not offer his legal services to accused Avila and Ilo but it was the two accused who sought his assistance in executing their extrajudicial confessions. Nonetheless, he acceded to their request to act as counsel after apprising them of their constitutional rights and after being convinced that the accused were under no compulsion to give their confession. - Perez v. Atty. Dela Torre, AC 6160, March 30, 2006

Retained counsel of either party cannot act as mediator without consent Even respondent’s alleged effort to settle the existing controversy • among the family members was improper because the written consent of all concerned was still required . A lawyer who acts as such in settling a dispute cannot represent any of the parties to it. - Lim Jr. v. Atty. Villarosa, A.C. No. 5303, June 15, 2006  Rule 15.04. - A lawyer may, with the written consent of all • concerned, act as mediator, conciliator or arbitrator in settling disputes. Nature of the case is irrelevant The claim of respondent that there is no conflict of interests in this • case, as the civil case handled by their law firm where Gonzales is the complainant and the criminal cases filed by Gonzales against the Gatcheco spouses are not related, has no merit. The representation of opposing clients in said cases, though unrelated, constitutes conflict of interests or, at the very least, invites suspicion of double-dealing which this Court cannot allow. Gonzales v. Atty. Cabucana, A.C. No. 6836, January 23, 2006  Dismissed employee and counsel of record incompatible In the instant case, quite apart from the issue of validity of the • 1990 compromise agreement, this Court finds fault in respondent's omission of that basic sense of fidelity to steer clear of situations that put his loyalty and devotion to his client, the faculty members of UST, open to question. Atty. Mariño both as lawyer and

president of the union was duty bound to protect and advance the interest of union members and the bargaining unit above his own. This obligation was jeopardized when his personal interest as one of the dismissed employees of UST complicated the negotiation process and eventually resulted in the lopsided compromise agreement that rightly or wrongly brought money to him and the other dismissed union officers and directors, seemingly or otherwise at the expense of the faculty members.  Dr. Gamilla et. al. v. Atty. Mariño Jr., A.C. No. 4763, March 20, 2003 Client of law firm is the client of every partners and associates Respondent further argued that it was his brother who represented • Gonzales in the civil case and not him, thus, there could be no conflict of interests. We do not agree. As respondent admitted, it was their law firm which represented Gonzales in the civil case. Such being the case, the rule against representing conflicting interests applies. - Gonzales v. Atty. Cabucana, A.C. No. 6836,  January 23, 2006 Vicarious disqualification Traditionally, if a lawyer is ineligible to represent a particular • client, all members of the lawyer's firm also are ineligible. The basis for vicarious disqualification is the "presumption of  • shared confidences," which seeks to prevent disclosure of client confidences, preserve counsel loyalty, and avoid the appearance of  impropriety. Professional engagement starts the moment the lawyer listens to his prospective client An attorney is employed that is, he is engaged in his professional • capacity as a lawyer or counselor when he is listening to his client s preliminary statement of his case , or when he is giving advice thereon, just as truly as when he is drawing his client s pleadings, or advocating his client s pleadings, or advocating his client s

unfaithfulness or double-dealing in the performance thereof  (Invitation of suspicion).

cause in open court. -  Atty. Catalan v. Atty. Silvosa A.C. No. 7360 [2012] Good faith is not a defense • Indeed, the prohibition against representation of conflicting interests applies although the attorney’s intentions were honest and he acted in good faith. -  Atty. Catalan v. Atty. Silvosa A.C. No. 7360 [2012] Consent ineffective A lawyer may not properly represent conflicting interests even • though the parties concerned agree to the dual representation where: 1. the conflict is between the attorney’s interest and that of a client, or 2. between a private client’s interests and that of the government or any of its instrumentalities. 3. between an accused and counsel. Section 12. (Article III of the Constitution) • (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. Three tests to determine conflicting interests The first is when, on behalf of one client, it is the attorney’s duty to • contest for that which his duty to another client requires him to oppose or when this possibility of such situation will develop (conflicting duties). •

The second test is whether the acceptance of the new relation will prevent a lawyer from the full discharge of his duty of undivided fidelity and loyalty to his client or will invite suspicion of 

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The third test is whether a lawyer will be called upon in his new relation to use against the first client any knowledge acquired in the previous employment (use of prior knowledge obtained ). Representing conflicting interests would occur only where the attorney’s new engagement would require her to use against a former client any confidential information gained from the previous professional relation. The prohibition did not cover a situation where the subject matter of the present engagement was totally unrelated to the previous engagement of the attorney. - Seares, Jr. v. Atty. Gonzales-Alzate, Adm. Case No. 9058   November 14, 2012 Remember: The test to determine whether there is a conflict of  interest in the representation is PROBABILITY, not certainty of  conflict. It is of no moment that the lawyer would not be called upon to contend for one client that which the lawyer has to oppose for the other client, or that there would be no occasion to use the confidential information acquired from one to the disadvantage of  the other as the two actions are wholly unrelated. It is enough that the opposing parties in one case, one of whom would lose the suit, are present clients  and the nature or conditions of the lawyer’s respective retainers with each of them would affect the performance of the duty of undivided fidelity to both clients. Quiambao v. Atty. Bamba, Adm. Case No. 6708 August 25, 2005

Effects of Representing Adverse Interests 1. Disqualification as counsel of new client on petition of former client. 2. Where such is unknown to, becomes prejudicial interests of the new client, a judgment against such may, on that ground be set aside.

3. A lawyer can be held administratively liable through disciplinary action and may be held criminally liable for betrayal of  trust. 4. The attorney’s right to fees may be defeated if found to be related to such conflict and such was objected to by the former client, or if there was a concealment and prejudice by reason of the attorney’s previous professional relationship with the opposite party. What are the types of conflict of interest? 1. Concurrent or multiple or simultaneous representation: A lawyer represents clients whose objectives are adverse to each » other, no matter how slight or remote these are Take note of this minimal degree » Ex. A CPA-lawyer being part of a firm that represents the estate » and being part of the accountancy firm that represents the creditors. The conflict need not arise from two legal relationships. 2. Sequential or successive representation: » Representation of present client who may have an interest adverse to prior client. •

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Successive representation - when a lawyer or law firm seeks to represent a client whose interests are adverse to a former client without the former client's consent. The rule against simultaneous representation is based principally on the duty of undivided loyalty. Unlike simultaneous representation, successive representation is not prima facie improper. The duty to preserve client confidences is the primary ethical consideration implicated by successive representation. Successive representation implicates both the duty of loyalty and the preservation of the attorney-client relationship.

Suspicion of Double-dealing even if the case is unrelated

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We do not sustain respondent’s theory that since the ejectment case and the replevin case are unrelated cases fraught with different issues, parties, and subject matters, the prohibition is inapplicable. His representation of opposing clients in both cases, though unrelated, obviously constitutes conflict of  interest or, at the least, invites suspicion of double-dealing. Quiambao v. Atty. Bamba, Adm. Case No. 6708 August 25, 2005

Does the lawyer have to be the counsel-of-record for the other party to violate this provision? • To be guilty of representing conflicting interests, a counsel-ofrecord of one party need not also be 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 conflicting interests of record--- although these circumstances are the most obvious and satisfactory proof of the charge. It is enough that the counsel of one party had a hand in the preparation of the pleading of the other party , claiming adverse and conflicting interests with that of his original client. To require that he also be counsel-of-record of the adverse party would punish only the most obvious form of deceit and reward, with impunity, the highest form of disloyalty. –  Artezuela v. Atty.  Maderazo, A.C. No. 4354. April 22, 2002 Only instance when a lawyer can represent conflicting interest • A lawyer cannot represent conflicting interests except by written consent of all concerned  given after a full disclosure of the facts. – Santos Ventura Hocorma Foundation, Inc. v. Atty. Funk, A.C.  No. 9094 August 15, 2012 Limit of full disclosure A lawyer is forbidden from representing a subsequent client • against a former client when the subject matter of the present controversy is related, directly or indirectly , to the subject matter of the previous litigation in which he appeared for the former client. Conversely, he may properly act as counsel for a n ew client,

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with full disclosure to the latter, against a former client in a matter wholly unrelated to that of the previous employment, there being in that instance no conflict of interests. Where, however, the subject matter of the present suit between the lawyer’s new client and his former client is in some way connected with that of the former client’s action , the lawyer may have to contend for his new client that which he previously opposed as counsel for the former client or to use against the latter information confided to him as his counsel. - Pormento, Sr. v. Atty. Pontevedra, A.C. No. 5128. March 31, 2005

Purpose and intention is immaterial Respondent contends that he handled the defense of the accused in • the subject criminal case for humanitarian reasons and with the honest belief that there exists no conflict of interests. However, the rule is settled that the prohibition against representation of  conflicting interests applies although the attorney’s intentions and motives were honest and he acted in good faith. Moreover, the fact that the conflict of interests is remote or merely probable does not make the prohibition inoperative. - Pormento, Sr. v. Atty. Pontevedra, A.C. No. 5128. March 31, 2005 Termination of A-C relations is not a justification Respondent also asserts that when he accepted employment in • Criminal Case No. 3159, the attorney-client relations between him and complainant in Civil Case No. 1648 had already been terminated. This defense does not hold water because the termination of the relation of attorney and client provides no  justification for a lawyer to represent an interest adverse to or in conflict with that of the former client. – Pormento, Sr. v. Atty. Pontevedra, A.C. No. 5128. March 31, 2005 Acquired knowledge of former client’s doings is indelible The reason for this is that a lawyer acquires knowledge of his • former client's doings, whether documented or not , that he would ordinarily not have acquired were it not for the trust and

confidence that his client placed on him in the light of their relationship. It would simply be impossible for the lawyer to identify and erase such entrusted knowledge with faultless precision or lock the same into an iron box when suing the former client on behalf of a new one. - Santos Ventura Hocorma Foundation, Inc. v. Atty. Funk, A.C. No. 9094 August 15, 2012 Good faith and honest intention is not a defense That the representation of conflicting interest is in good faith and • with honest intention on the part of the lawyer does not make the prohibition inoperative. - Quiambao v. Atty. Bamba, Adm. Case  No. 6708 August 25, 2005 Although there are instances where lawyers cannot decline • representation, they cannot be made to labor under conflict of  interest between a present client and a prospective one.  –  Quiambao v. Atty. Bamba, Adm. Case No. 6708 August 25, 2005 The prohibition against conflict of interest rests on five rationales, rendered as follows: x x x. First, the law seeks to assure clients that their lawyers will • represent them with undivided loyalty. A client is entitled to be represented by a lawyer whom the client can trust. Instilling such confidence is an objective important in itself. x x x. Second, the prohibition against conflicts of interest seeks to • enhance the effectiveness of legal representation. To the extent that a conflict of interest undermines the independence of the lawyer’s professional judgment or inhibits a lawyer from working with appropriate vigor in the client’s behalf, the client’s expectation of  effective representation x x x could be compromised. - Samson v. Atty. Era, A.C. No. 6664 July 16, 2013 • Third, a client has a legal right to have the lawyer safeguard the client’s confidential information xxx. Preventing use of  confidential client information against the interests of the client, either to benefit the lawyer’s personal interest, in aid of some other client, or to foster an assumed public purpose is facilitated through conflicts rules that reduce the opportunity for such abuse.

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Fourth, conflicts rules help ensure that lawyers will not exploit clients, such as by inducing a client to make a gift to the lawyer xxx. Finally, some conflict-of-interest rules protect interests of the legal system in obtaining adequate presentations to tribunals. In the absence of such rules, for example, a lawyer might appear on both sides of the litigation, complicating the process of taking proof and compromise adversary argumentation x x x. - Samson v. Atty. Era,  A.C. No. 6664 July 16, 2013

Informed consent must be written A client's implied consent is insufficient  to waive a potential • conflict of interest. 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. • While the respondent may assert that the complainant expressly consented to his continued representation in the ejectment case, the respondent failed to show that he fully disclosed the facts to both his clients and he failed to present any written consent of the complainant and AIB as required under Rule 15.03, Canon 15 of  the Code of Professional Responsibility. - Quiambao v. Atty.  Bamba, Adm. Case No. 6708 August 25, 2005 COI remains after termination of attorney-client relationship The termination of the attorney-client relationship does not justify • a lawyer to represent an interest adverse to or in conflict with that of the former client. The spirit behind this rule is that the client’s confidence once given should not be stripped by the mere expiration of the professional employment. Even after the severance of the relation, a lawyer should not do anything that will injuriously affect his former client in any matter in which the lawyer previously represented the client. – Samson v. Atty. Era,  A.C. No. 6664 July 16, 2013 Current observations husband and wife lawyers in legal practice

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Where both husband and wife are lawyers but they are not practicing in association with one another, may they or their firms represent differing interests? Some firms apparently have been reluctant to employ one spouselawyer where that person's husband or wife is, or may soon be, practicing with another firm in the same city or area. Some law firms are concerned whether a law firm is disqualified, by reason of its employment of one spouse, to represent a client opposing an interest represented by another law firm that employs the husband or wife of the inquiring firm's associate. It is not necessarily improper for husband-and-wife lawyers who are practicing in different offices or firms to represent differing interests. No disciplinary rule expressly requires a lawyer to decline employment if a husband, wife, son, daughter, brother, father, or other close relative represents the opposing party in negotiation or litigation. Likewise, it is not necessarily improper for a law firm having a married partner or associate to represent clients whose interests are opposed to those of other clients represented by another law firm with which the married lawyer's spouse is associated as a lawyer. Married partners who are lawyers must guard carefully at all times against inadvertent violations of their professional responsibilities arising by reason of the marital relationship. The disqualification of married or related lawyers who oppose one another professionally is not generally imputed to other lawyers in the related lawyer's law offices. Such personal disqualification is not imputed to the spouses' firms unless the lawyers have a personal interest in the outcome of the case.

Special circumstances that highlight the concern 1. whether the fee of either firm is contingent, 2. whether the disputed matter is one of negotiation or litigation, and whether the married lawyer in question will or will not actually be working on the particular matter.

3. Another variation of the problem is the situation in which a governmental agency, such as a district attorney or an attorney general, is the employer of either the husband or the wife, and the spouse is associated with a law firm  in the same community. Concerns about husband & wife lawyers Yet it also must be recognized that the relationship of husband • and wife is so close  that the possibility of an inadvertent breach of  a confidence or the unavoidable receipt of information concerning the client by the spouse other than the one who represents the client (for example, information contained in a telephoned message left for the lawyer at home) is substantial. Because of the closeness of the husband-and-wife relationship, a lawyer who is married to a lawyer must be particularly careful. Recommendations Married partners who are lawyers must guard carefully at all times • against inadvertent violations of their professional responsibilities arising by reason of the marital relationship. Lawyer Relatives Ethical precepts admonish lawyers related by blood or marriage to • avoid adversarial representations without the informed consent of  the parties. Lawyers related by blood or marriage have long been permitted to • represent adversarial interests provided that a reasonable effort is made to anticipate and expose potential conflicts to clients before obtaining their consent to representation. Faced with client consent, courts have consistently required an • actual conflict of interest rather than simply the fact of adversarial lawyer relatives before ordering disqualification. Personal Relationships

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A lawyer is romantically involved with the opposing party’s attorney, or sexually involved with a client, the lawyer’s loyalty or  judgment can be impaired. Lawyers who are dating and also representing adversaries in litigation should disclose their relationship if it is sufficiently close that their clients might have questions about the lawyers' ability to represent them zealously. Lawyers who are otherwise personally close should do likewise. The lawyer had enjoyed an "intimate physical relationship" with the secretary and talked with her "about significant aspects of the case," for which he was disqualified. A lawyer is prohibited from having sex with a client unless a consensual sexual relationship existed prior to the start of  professional representation.

Duty to protect only matters acquired during the lawyer-client relationship The intent of the law is to impose upon the lawyer the duty to • protect the client’s interests only on matters that he previously handled for the former client  and not for matters that arose after the lawyer-client relationship has terminated. – Palm v. Atty.  Iledan, Jr. A.C. No. 8242 [2009] CHAPTER 8 “Conflict of interest” of Corporate Lawyers CPR provisions  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.  Canon 21. A lawyer shall preserve the confidence and secrets of his client even after the attorney-client relationship is terminated. Corporate counsel and possibility of COI  Members of the Board of Directors  Employees of the corporation  General public

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Duty of attorney to a corporate client  “[a]n attorney for a corporate client owes his duty [of loyalty] to the corporate entity rather than a particular officer, director, or shareholder.” -  ABC Trans Natl Transport, Inc. v. Aeronautics Forwarders, Inc, 413 NE.2d 1299, 1310 1980  “[a] corporate attorney represents the corporation , not the individual directors or officers.” -  Heim v. Signcraft Screenprint   Inc, No 01C50014, 2001 WL 1018228 2001  “[t]he attorney for a corporation, even a closely held one, does not have a specific fiduciary duty toward the individual shareholders.” - Kopka v. Kamensky and Rubenstein, 821 NE.2d  719, 727 (2004) 

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He should resolve all doubts against the propriety of the representation. – Cannon v. U.S. Acoustics Corp. 398 F.Supp. 209 (1975) 

Can a lawyer engaged by a corporation defend members of the board of the same corporation in a derivative suit?  We are sufficiently convinced that a lawyer engaged as counsel for a corporation cannot represent members of the same corporation’s board of directors in a derivative suit brought against them. To do so would be tantamount to representing conflicting interests, which is prohibited by the Code of Professional Responsibility.  Furthermore, this restriction on dual representation should not be waivable by consent in the usual way; the corporation should be presumptively incapable of giving valid consent. –  Hornilla v.  Atty. Salunat, A.C. No. 5804. July 1, 2003 Palm v. Atty. Iledan, Jr. A.C. No. 8242 [2009]  Complainant is the President of Comtech, a corporation engaged in the business of computer software development.

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From February 2003 to November 2003, respondent served as Comtech’s retained corporate counsel  for the amount of P6,000 per month as retainer fee. From September to October 2003, complainant personally met with respondent to review corporate matters , including potential amendments to the corporate by-laws. In a meeting held on 1 October 2003, respondent suggested that Comtech amend its corporate by-laws to allow participation during board meetings, through teleconference, of members of  the Board of Directors who were outside the Philippines. Comtech decided to terminate its retainer agreement with respondent effective November 2003. On 24 March 2004, Comtech’s new counsel sent a demand letter to Soledad [a former officer and director of Comtech, who resigned and who was suspected of releasing unauthorized disbursements of  corporate funds] to return or account for the amount of P90,466.10 representing her unauthorized disbursements when she was the Corporate Treasurer of Comtech. On 22 April 2004, Comtech received Soledad’s reply, signed by respondent. In July 2004, due to Soledad’s failure to comply with Comtech's written demands, Comtech filed a complaint for Estafa against Soledad before the Makati Prosecutor’s Office. In the proceedings before the City Prosecution Office of Makati, respondent appeared as Soledad’s counsel. In his Answer, respondent alleged that in January 2002, Soledad consulted him on process and procedure in acquiring property. In April 2002, Soledad again consulted him about the legal requirements of putting up a domestic corporation. In February 2003, Soledad engaged his services as consultant for Comtech. Respondent alleged that from February to October 2003, neither Soledad nor Palm consulted him on confidential or privileged matter concerning the operations of the corporation. Respondent further alleged that he had no access to any record of  Comtech.

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Respondent admitted that during the months of September and October 2003, complainant met with him regarding the procedure in amending the corporate by-laws to allow board members outside the Philippines to participate in board meetings.  Respondent alleged that there was no conflict of interest when he represented Soledad in the case for Estafa filed by Comtech. He alleged that Soledad was already a client before he became a consultant for Comtech. He alleged that the criminal case was not related to or connected with the limited procedural queries he handled with Comtech. In addition, although the information about the necessity to amend the corporate by-laws may have been given to respondent, it could not be considered a confidential information. Further, whenever any amendment or adoption of new by-laws is made, copies of the amendments or the new by-laws are filed with the Securities and Exchange Commission (SEC) and attached to the original articles of incorporation and by-laws. The documents are public records and could not be considered confidential. We agree with the IBP that in the course of complainant’s consultations, respondent obtained the information about the need to amend the corporate by-laws to allow board members outside the Philippines to participate in board meetings through teleconferencing. Respondent himself admitted this in his Answer. It is settled that the mere relation of attorney and client does not raise a presumption of confidentiality. The client must intend the Since the proposed communication to be confidential. amendments must be approved by at least a majority of the stockholders, and copies of the amended by-laws must be filed with the SEC, the information could not have been intended to be confidential. Thus, the disclosure made by respondent during the stockholders’ meeting could not be considered a violation of his client’s secrets and confidence within the contemplation of Canon 21 of the Code of Professional Responsibility.

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We find no conflict of interest when respondent represented Soledad in a case filed by Comtech. The case where respondent represents Soledad is an Estafa case filed by Comtech against its former officer. There was nothing in the records that would show that respondent used against Comtech any confidential information acquired while he was still Comtech’s retained counsel. Further, respondent made the representation after the termination of his retainer agreement with Comtech . A lawyer’s immutable duty to a former client does not cover transactions that occurred beyond the lawyer’s employment with the client. The intent of the law is to impose upon the lawyer the duty to protect the client’s interests only on matters that he previously handled for the former client  and not for matters that arose after the lawyer-client relationship has terminated.

Santos Ventura Hocorma Foundation, Inc. v. Atty. Funk, A.C. No. 9094 August 15, 2012  It alleged that Atty. Funk used to work as corporate secretary, counsel, chief executive officer, and trustee of the Santos Ventura Hocorma foundation from 1983 to 1985. He also served as its counsel in several criminal and civil cases.  Hocorma Foundation further alleged that on November 25, 2006 Atty. Funk filed an action for quieting of title and damages against Hocorma Foundation on behalf of Mabalacat Institute, Inc. (Mabalacat Institute). Atty. Funk did so, according to the foundation, using information that he acquired while serving as its counsel xxx.  Here, it is undeniable that Atty. Funk was formerly the legal counsel of Hocorma Foundation. Years after terminating his relationship with the foundation, he filed a complaint against it

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on behalf of another client, the Mabalacat Institute, without the foundation's written consent. Here, the evidence shows that Hocorma Foundation availed itself of the legal services of Atty. Funk   in connection with, among others, the transfer of one of the properties subject of the several suits that the lawyer subsequently filed against the foundation. Indeed, Atty. Funk collected attorney's fees from the foundation for such services . An attorney may not, without being guilty of professional misconduct, act as counsel for a person whose interest conflicts with that of his present or former client. This rule is so absolute that good faith and honest intention on the erring lawyer's part does not make it inoperative. The reason for this is that a lawyer acquires knowledge of his former client's doings, whether documented or not, that he would ordinarily not have acquired were it not for the trust and confidence that his client placed on him in the light of their relationship. It would simply be impossible for the lawyer to identify and erase such entrusted ledge with faultless precision or lock the same into an iron box when suing the former client on behalf of a new one.

Hornilla v. Atty. Salunat A.C. No. 5804, July 1, 2003  They alleged that respondent is a member of the ASSA Law and Associates, which was the retained counsel of the Philippine Public School Teachers Association (PPSTA). Respondent’s brother, Aurelio S. Salunat, was a member of the PPSTA Board which approved respondent’s engagement as retained counsel of  PPSTA.  Complainants, who are members of the PPSTA, filed an intracorporate case against its members of the Board of Directors for the terms 1992-1995 and 1995-1997 before the Securities and Exchange Commission. which was docketed as SEC Case No. 0597-5657, and a complaint before the Office of the Ombudsman,

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docketed as OMB Case No. 0-97-0695, for unlawful spending and the undervalued sale of real property of the PPSTA. Respondent entered his appearance as counsel for the PPSTA Board members in the said cases. Complainants contend that respondent was guilty of conflict of  interest because he was engaged by the PPSTA, of which complainants were members, and was being paid out of its corporate funds where complainants have contributed. Despite being told by PPSTA members of the said conflict of interest, respondent refused to withdraw his appearance in the said cases. Respondent admits that the ASSA Law Firm, of which he is the Managing Partner, was the retained counsel of PPSTA . Yet, he appeared as counsel of record  for the respondent Board of  Directors  in the said case. Clearly, respondent was guilty of  conflict of interest when he represented the parties against whom his other client , the PPSTA, filed suit.

What is a “derivative suit”?  Where corporate directors have committed a breach of trust either by their frauds, ultra vires acts, or negligence, and the corporation is unable or unwilling to institute suit to remedy the wrong, a stockholder may sue on behalf of himself and other stockholders and for the benefit of the corporation , to bring about a redress of the wrong done directly to the corporation and indirectly to the stockholders.  This is what is known as a derivative suit, and settled is the doctrine that in a derivative suit, the corporation is the real party in interest while the stockholder filing suit for the corporation’s behalf is only nominal party. The corporation should be included as a party in the suit. 

A lawyer engaged as counsel for a corporation cannot represent members of the same corporation’s board of directors in a derivative suit brought against them. To do so would be

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tantamount to representing conflicting interests, which is prohibited by the Code of Professional Responsibility. The interest of the corporate client is paramount   and should not be influenced by any interest of the individual corporate officials.

Corporation cannot “consent” to a representation of a lawyer with COI  The cases and ethics opinions differ on whether there must be separate representation from the outset or merely from the time the corporation seeks to take an active role. Furthermore, this restriction on dual representation should not be waivable by consent in the usual way; the corporation should be presumptively incapable of giving valid consent.  Outside counsel must thus be retained to represent one of the defendants.  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. Quiambao v. Atty. Nestor Bamba A. C. No. 6708 August 25, 2005  Complainant Felicitas S. Quiambao charges respondent Atty. Nestor A. Bamba with violation of the Code of Professional Responsibility for representing conflicting interests   when the latter filed a case against her while he was at that time representing her in another case , and for committing other acts of disloyalty and double-dealing.  The complainant was the president and managing director of  Allied Investigation Bureau, Inc. (AIB), a family-owned corporation engaged in providing security and investigation services. She avers that she procured the legal services of the respondent not only for the corporate affairs of AIB  but also for her personal case.

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Particularly, the Spouses Santiago and Florita Torroba filed by her on 29 December 2000 before the Metropolitan Trial Court (MeTC) of Parañaque City. About six months after she resigned as AIB president, or on 14 June 2001, the respondent filed on behalf of AIB a complaint for replevin and damages against her  before the MeTC of Quezon City for the purpose of recovering from her the car of AIB assigned to her as a service vehicle. This he did without withdrawing as counsel of record in the ejectment case , which was then still pending. We do not sustain respondent’s theory that since the ejectment case and the replevin case are unrelated cases fraught with different issues, parties, and subject matters, the prohibition is inapplicable. His representation of opposing clients in both cases, though unrelated, obviously constitutes conflict of interest or, at the least, invites suspicion of double-dealing. While the respondent may assert that the complainant expressly consented to his continued representation in the ejectment case, the respondent failed to show that he fully disclosed the facts to both his clients and he failed to present any written consent  of  the complainant and AIB as required under Rule 15.03, Canon 15 of the Code of Professional Responsibility. Neither can we accept respondent’s plea that he was duty-bound to handle all the cases referred to him by AIB, including the personal cases of its officers which had no connection to its corporate affairs. That the representation of conflicting interest is in good faith and with honest intention  on the part of the lawyer does not make the prohibition inoperative.

Extent or degree of prohibition on representing COI  It must be noted that the proscription against representation of  conflicting interests finds application where the conflicting interests arise with respect to the same general matter however slight the adverse interest may be .