UP Bar Reviewer 2013 - Legal and Judicial Ethics
UP Bar Reviewer 2013 - Legal and Judicial Ethics...
Supervision & Control of the Legal Profession ..................... 1 Practice of Law ....................... 1 CONCEPT.................................................................... 1 NATURE ..................................................................... 1 REQUIREMENTS FOR ADMISSION TO PRACTICE ....................... 1 QUALIFICATIONS ....................................................... 1 PRIVILEGE ...................................................................... 1 PROFESSION, NOT BUSINESS .............................................. 1 FOUR FACTORS IN DETERMINING PRACTICE OF LAW ................. 1 APPEARANCE OF NON-LAWYERS .............................. 3 LAW STUDENT PRACTICE ................................................... 3 NON-LAWYERS IN COURTS ................................................. 4 NON-LAWYERS IN ADMINISTRATIVE TRIBUNALS ...................... 4 PROCEEDINGS WHERE LAWYERS ARE PROHIBITED FROM APPEARING ............................................................ 4
SANCTIONS FOR PRACTICE OR APPEARANCE WITHOUT AUTHORITY ............................................... 4 PUBLIC OFFICIALS AND PRACTICE OF LAW .............. 5 PROHIBITION OR DISQUALIFICATION OF FORMER GOVERNMENT ATTORNEYS ................................................................... 5 PUBLIC OFFICIALS WHO CANNOT PRACTICE LAW OR WITH RESTRICTIONS ................................................................ 5
LAWYERS AUTHORIZED TO REPRESENT THE GOVERNMENT ........................................................... 5 LAWYER’S OATH ........................................................ 5 IMPORTANT TERMS TO REMEMBER ...................................... 5
Duties & Responsibilities of Lawyers .................................. 6 LEGAL ETHICS ............................................................ 6 DUTIES OF A LAWYER ................................................ 6 THE FOUR-FOLD DUTIES OF A LAWYER .................... 6 LAWYER’S DUTIES TO SOCIETY ............................................ 6 LAWYER’S DUTIES TO THE LEGAL PROFESSION ....................... 6 LAWYER’S DUTIES TO THE COURTS ...................................... 6 LAWYER’S DUTIES TO THE CLIENT ........................................ 6 DUTIES TO SOCIETY .................................................... 6 RESPECT FOR LAW AND LEGAL PROCESSES ............................ 6 EFFICIENT AND CONVENIENT LEGAL SERVICES ........................ 7 TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE INFORMATION ON LEGAL SERVICES .............................................................. 9 PARTICIPATION IN THE IMPROVEMENT AND REFORMS IN LEGAL SYSTEM ....................................................................... 10 PARTICIPATION IN LEGAL EDUCATION PROGRAM .................... 11
THE LEGAL PROFESSION .......................................... 13 STATUTORY BASIS .......................................................... 13
INTEGRATED BAR OF THE PHILIPPINES ................................ 13 UPHOLDING THE DIGNITY AND INTEGRITY OF THE PROFESSION . 14 COURTESY, FAIRNESS AND CANDOR TOWARDS PROFESSIONAL COLLEAGUES ................................................................ 14 NO ASSISTANCE IN UNAUTHORIZED PRACTICE OF LAW ............ 15
THE COURTS ........................................................... 16 CANDOR, FAIRNESS AND GOOD FAITH TOWARDS THE COURTS .. 16 RESPECT FOR COURTS AND JUDICIAL OFFICERS ...................... 17 ASSISTANCE IN THE SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE ...................................................................... 19 RELIANCE ON MERITS OF HIS CAUSE, NOT FROM IMPROPER INFLUENCE UPON THE COURTS ..........................................21
THE CLIENTS ........................................................... 22 NATURE OF ATTORNEY -CLIENT RELATIONSHIP ..................... 22 AVAILABILITY OF SERVICE WITHOUT DISCRIMINATION ............. 22 CANDOR, FAIRNESS AND LOYALTY TO CLIENTS ..................... 23 CLIENT’S MONEY AND PROPERTIES .................................... 25 FIDELITY TO CLIENT’S CAUSE ............................................ 27 COMPETENCE AND DILIGENCE ........................................... 27 REPRESENTATION WITH ZEAL WITHIN LEGAL BOUNDS ............ 28 ATTORNEY’S FEES .......................................................... 29 PRESERVATION OF CLIENT’S CONFIDENCES ........................... 31 WITHDRAWAL OF SERVICES ............................................. 34
Suspension, Disbarment & Discipline of Lawyers ......35
NATURE AND CHARACTERISTICS OF DISCIPLINARY ACTIONS AGAINST LAWYERS .................................. 35 NATURE OF PROCEEDINGS ............................................... 35 THREE-FOLD PURPOSE OF THE CONFIDENTIALITY .................. 35 OBJECTIVES OF SUSPENSION AND DISBARMENT .................... 36 GROUNDS ............................................................... 36 PROCEEDINGS ......................................................... 37 APPLICATION OF THE DOCTRINE OF RES IPSA LOQUITOR .......... 37 AVAILABLE DEFENSES ..................................................... 37 PRESCRIPTION ............................................................. 37 DISCIPLINE OF FILIPINO LAWYERS PRACTICE IN FOREIGN JURISDICTIONS ....................................... 37 CIVIL LIABILITY ............................................................. 37 CRIMINAL LIABILITY ....................................................... 37 COSTS OF SUIT .............................................................. 37 CONTEMPT OF COURT ..................................................... 38 KINDS OF CONTEMPT ..................................................... 38 ACTS OF A LAWYER CONSTITUTING CONTEMPT ..................... 38 POWER TO DISCIPLINE ERRANT LAWYERS ............................ 38 FORMS OF DISCIPLINARY MEASURES .................................. 38 OTHER SANCTIONS AND REMEDIES ..................................... 38 MODIFYING CIRCUMSTANCES ........................................... 38 MITIGATING CIRCUMSTANCES ........................................... 38 AGGRAVATING CIRCUMSTANCES ........................................ 39 EFFECT OF EXECUTIVE PARDON ......................................... 39 EFFECT OF SUSPENSION OR DISBARMENT ............................ 39 EFFECT OF DESISTANCE OF COMPLAINANT ........................... 39 EFFECTS OF COMPROMISE AGREEMENTS ............................. 39 EFFECT OF DEATH OF LAWYER DURING PENDENCY OF DISCIPLINARY ACTION AGAINST HIM ................................... 39
Readmission to the Bar ..... 40
Qualities ............................. 46
READMISSION TO THE BAR .....................................40
INDEPENDENCE ..................................................... 46 MEMORY AID FOR SECTIONS UNDER CANON 1 ...................... 46 INDEPENDENT JUDICIAL FUNCTION.................................... 46 OUTSIDE PRESSURE ...................................................... 46 INFLUENCING OUTCOME OF LITIGATION .............................. 47 INFLUENCE ON JUDICIAL CONDUCT .................................... 47 INDEPENDENCE FROM EXECUTIVE AND LEGISLATIVE .............. 47 INDEPENDENCE FROM SOCIETY AND PARTICULAR PARTIES ...... 47 SAFEGUARDS FOR JUDICIAL INDEPENDENCE ........................ 47 PROMOTE PUBLIC CONFIDENCE ......................................... 47
STATUTORY BASIS ..................................................40 LAWYERS WHO HAVE BEEN SUSPENDED ..............40 LAWYERS WHO HAVE BEEN DISBARRED ................40 LAWYERS WHO HAVE BEEN REPATRIATED ...........40 EFFECTS OF REINSTATEMENT ................................40
Mandatory Continuing Legal Education ................. 40 PURPOSE ................................................................ 40 PURPOSE OF THE MCLE ....................................................40 REQUIREMENTS OF COMPLETION OF THE MCLE .....40 COMPLIANCE ........................................................... 41 COMPLIANCE GROUPS .................................................... 41 COMPLIANCE PERIOD OF MEMBERS ADMITTED OR READMITTED AFTER ESTABLISHMENT OF THE PROGRAM .......................... 41
EXEMPTIONS ........................................................... 41 GOOD CAUSE FOR EXEMPTION FROM OR MODIFICATION OF REQUIREMENT ......................................................... CHANGE OF STATUS ....................................................... PROOF OF EXEMPTION ....................................................
41 41 41
SANCTIONS ............................................................. 41 NON-COMPLIANCE FEE ................................................... 41 LISTING AS DELINQUENT MEMBER ..................................... 42 ACCRUAL OF MEMBERSHIP FEE ......................................... 42
Notarial Practice .................42 QUALIFICATIONS OF NOTARY PUBLIC ................... 42 TERM OF OFFICE OF NOTARY PUBLIC .................................. 42 POWERS AND LIMITATIONS .................................. 42 AUTHORITY OF THE NOTARY ............................................. 42 EFFECTS OF NOTARIZATION .............................................. 43 PUNISHABLE ACTS ......................................................... 43 NOTARIAL REGISTER ............................................. 43 ENTRIES IN THE NOTARIAL REGISTER ................................. 43 JURISDICTION OF NOTARY PUBLIC AND PLACE OF NOTARIZATION ...................................................... 44 REVOCATION OF COMMISSION .............................. 44 COMPETENT EVIDENCE OF IDENTITY ..................... 45 SANCTIONS ............................................................ 45
Rules on Judicial Ethics .... 46
iNTEGRITY .............................................................. 47 MEMORY AID FOR SECTIONS UNDER CANON 2 ...................... 47 CONDUCT ABOVE REPROACH ........................................... 48 REAFFIRM PEOPLE’S FAITH .............................................. 48 DISCIPLINARY ACTION .................................................... 48 IMPARTIALITY ........................................................ 48 MEMORY AID FOR SECTIONS UNDER CANON 3 ...................... 49 JUDICIAL DUTIES FREE FROM BIAS ..................................... 49 PROMOTE CONFIDENCE, IMPARTIALITY ............................... 49 MINIMIZE INSTANCES OF DISQUALIFICATIONS ...................... 49 PUBLIC COMMENTS; PENDING AND IMPENDING CASE ............. 49 DISQUALIFICATIONS ....................................................... 50 REMITTAL OF DISQUALIFICATIONS .................................... 50 PROPRIETY ............................................................ 50 MEMORY AID FOR SECTIONS UNDER CANON 4 ...................... 50 AVOIDANCE OF IMPROPRIETY ........................................... 51 ACCEPTANCE OF PERSONAL RESTRICTIONS ......................... 51 AVOIDANCE OF CONTROVERSY .......................................... 51 NOT PARTICIPATE IN CASES WHERE HE MAY BE IMPARTIAL ...... 51 NOT ALLOW THE USE OF HIS RESIDENCE BY OTHER LAWYERS ... 51 FREEDOM OF EXPRESSION ............................................... 51 BE INFORMED OF HIS FINANCIAL INTERESTS ......................... 52 INFLUENCE OF JUDICIAL CONDUCT ..................................... 52 CONFIDENTIAL INFORMATION .......................................... 52 ENGAGE IN OTHER ACTIVITIES ........................................... 52 PRACTICE OF PROFESSION ............................................... 53 FORM ASSOCIATIONS ...................................................... 53 GIFTS, REQUESTS, LOANS ............................................... 53 GIFTS, REQUESTS, LOANS BY STAFF ................................... 53 PERMISSIBLE TOKENS AND AWARDS .................................. 53 EQUALITY ................................................................ 53 MEMORY AID FOR SECTIONS UNDER CANON 5 ....................... 53 UNDERSTAND THE DIVERSITY IN SOCIETY ............................ 53 NOT TO MANIFEST BIAS OR PREJUDICE ............................... 54 NOT TO DIFFERENTIATE .................................................. 54 NOT TO INFLUENCE STAFF ............................................... 54 ATTITUDE TO PARTIES APPEARING IN COURT ....................... 54 COMPETENCE AND DILIGENCE ............................... 54 MEMORY AID FOR SECTIONS UNDER CANON 6 ....................... 54 DUTIES TAKE PRECEDENCE .............................................. 54 PERFORM ADMINISTRATIVE DUTIES ................................... 55 MAINTAIN PROFESSIONAL COMPETENCE ............................. 55 BE INFORMED ABOUT THE LAW ......................................... 55 PROMPT DECISION MAKING ............................................. 55 MAINTAIN ORDER IN PROCEEDINGS ................................... 55 NOT TO ENGAGE IN CONDUCT CONTRARY TO DUTIES .............. 55
Discipline of Members of the Judiciary .............................. 56 MEMBERS OF THE SUPREME COURT ....................... 56 IMPEACHMENT ............................................................. 56 LOWER COURT JUDGES AND JUSTICES ................... 56 STATUTORY BASIS ........................................................ 56 MISCONDUCT .............................................................. 56 SERIOUS MISCONDUCT ................................................... 56 SERIOUS INEFFICIENCY ................................................... 57 ERROR OR IGNORANCE OF LAW ......................................... 57 GROUNDS ............................................................... 57 AUTOMATIC CONVERSION OF ADMINISTRATIVE CASES AGAINST CA AND SANDIGANBAYAN JUSTICES AND LOWER COURT JUDGES .................................. 58 IMPEACHMENT ETHICAL ASPECTS ......................... 58 SANCTIONS IMPOSED BY THE SUPREME COURT ON ERRING MEMBERS OF THE JUDICIARY .................... 58 INSTANCES OF SERIOUS MISCONDUCT WHICH MERITED DISCIPLINE BY THE SUPREME COURT ................................................ 58 INSTANCES OF GROSS INEFFICIENCY WHICH MERITED DISCIPLINE BY THE SUPREME COURT ................................................ 58 CONDUCT ................................................................... 58 QUANTUM OF EVIDENCE REQUIRED .................................. 58 RULES FOR EVIDENCE ..................................................... 58 EFFECT OF WITHDRAWAL, DESISTANCE, RETIREMENT OR PARDON
Disqualifications of Justices & Judges ................................ 59 COMPULSORY DISQUALIFICATION ........................ 59 VOLUNTARY DISQUALIFICATION ........................... 59
Powers and Duties of Courts & Judicial Officers .............. 59 Court Records & General Duties of Clerk Stenographer ...................... 61 Legal Fees ...........................63 Costs ....................................63
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Supervision & Control of the Legal Profession
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procedure – calls for legal knowledge, training and experience (3) Compensation – his professional services are available to the public for compensation, as a source of his livelihood or in consideration of his said services (4) Attorney-client relationship – For Padilla, teaching law or writing law books is not “practice of law” [Padilla’s dissent in Cayetano v. Monsod]
Const. Art. VIII, sec. 5(5): The Supreme Court shall have the following powers: xxx (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. xxx
Giving advice for compensation regarding the legal status and rights of another and for one’s conduct with respect thereto constitutes practice of law. [ULEP v. Legal Clinic, (1993)] In view of the broad definition in Cayetano v. Monsod, lawyers, when they teach law, are considered engaged in the practice of law…the fact of their being law professors is inextricably intertwined with the fact that they are lawyers. [Re: Letter of UP Law Faculty (2011)]
The power of the SC to regulate the practice of law includes: (1) Authority to define the term “practice” (2) Prescribe the qualifications of a candidate to and the subjects of the bar examinations (3) Decide who will be admitted to practice (4) Discipline, suspend or disbar any unfit and unworthy member of the bar (5) Reinstate any disbarred or indefinitely suspended attorney (6) Ordain the integration of the Phil. Bar (7) Punish for contempt any person for unauthorized practice of law and (8) In general, exercise overall supervision of the legal profession
QUALIFICATIONS Rules of Court, Rule 138, Sec. 1. Any person duly admitted as a member of the bar or hereafter admitted as such in accordance with the provisions of this rule and who is in good and regular standing is entitled to practice law. General Rule: Members of the Bar Exceptions: (1) Law students (2) By an agent/friend (3) By the litigant himself
Congress has no power to regulate the bar (admission to practice). But in the exercise of police power it may enact laws regulating the practice of law to protect the public. [In Re Cunanan (1954)]
REQUIREMENTS FOR ADMISSION TO PRACTICE [CRAGEBO]
(1) (2) (3) (4)
Citizenship Residence Age (above 21 y/o) Good Moral Character and no charges involving moral turpitude (5) Legal Education (pre-law, law proper) (6) Bar Examinations (7) Lawyer’s Oath
Practice of Law CONCEPT The practice of law is any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. It 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. [Cayetano v. Monsod, (1991)]
Citizenship Statutory Basis 1987 Const. Art. XII, Sec. 14. The practice of all professions in the Phils. shall be limited to Filipino citizens save in cases prescribed by law.
Rules of Court, Rule 138, Sec. 2. Every applicant for admission as a member of the bar must be a citizen of the Phils.
The practice of law is a privilege bestowed only to those who are morally fit. A bar candidate who is morally unfit cannot practice law even if he passes the bar examinations. [Aguirre vs Rana, (2003)]
Rationale: Citizenship ensures allegiance to the Republic and its laws.
PROFESSION, NOT BUSINESS
Lawyering is not a business; it is a profession in which duty to public service, not money, is the primary consideration. [Burbe vs Magulta, (2002)]
The loss of Filipino citizenship ipso jure terminates the privilege to practice law in the Philippines except when citizenship is lost by reason of naturalization and reacquired through RA 9225. [Petition to Resume Practice of Law of Benjamin Dacanay, (2007)]
FOUR FACTORS IN DETERMINING PRACTICE OF LAW [HACA]
(1) Habituality – customarily or frequently holding one’s self out to the public as a lawyer (2) Application of law, legal principles, practice, or
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A Filipino lawyer who has lost and reacquired his citizenship under R.A. No. 9225 is deemed not to have lost his Philippine citizenship. However, he still needs to apply with the Supreme Court for a license or permit to engage in such practice after compliance with the following: (1) Updating and payment of annual membership dues in the IBP (2) Payment of professional tax (3) Completion of 36 hours of mandatory continuing legal education (4) Retaking of the lawyer’s oath [Sec. 5(4), R.A. No. 9225].
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Concealment of pending criminal cases constitutes lack of good moral character (in petition to take the bar examinations) [In the matter of Haron S. Meling (2004)] Legal Education Pre-Law ROC, Rule 138, Sec. 6. 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. Law Proper
Rules of Court, Rule 138, Sec. 5 and 6. All applicants for admission… shall before being admitted to the examination satisfactorily show that they have regularly studied law for four years and successfully completed all prescribed courses in a law school or university officially approved and recognized by the Secretary of Education.
ROC, Rule 138, Sec. 2. Every applicant for admission as a member of the bar must be… a resident of the Philippines. Rationale: His/her duties to his client and to the court will require that he be readily accessible and available. Age
The applicant must have completed the following courses: (1) Civil Law (2) Commercial Law (3) Remedial Law (4) Public International Law (5) Private International Law (6) Political Law (7) Labor and Social Legislation (8) Medical Jurisprudence (9) Taxation (10) Legal Ethics
ROC, Rule 138, Sec. 2. Every applicant for admission as a member of the bar must be … at least 21 years of age… Rationale: Maturity and discretion are required in the practice of law. Good Moral Character ROC, Rule 138, Sec. 2. Every applicant for admission as a member of the bar must be … of good moral character… and must produce before the SC 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.
Graduates of foreign law schools are allowed to take the bar examinations provided they show the ff: (1) Completion of all courses leading to the degree of Bachelor of Laws or its equivalent degree (2) Recognition or accreditation of the law school by the proper authority (3) Completion of all the fourth year subjects in a law school duly recognized by the Philippine Government [SC Bar Matter 1153: Re: Letter of Atty. Estelito Mendoza (2010)]
Good moral character is a continuing qualification required of every member of the Bar, it is not only a qualification precedent to the practice of law. [Narag v. Narag, (1998)] Definitions of ‘good moral character’ Absence of a proven conduct or act which has been historically and traditionally considered as a manifestation of moral turpitude. The act or conduct need not amount to a crime; and even if it does constitute an offense, a conviction upon a criminal charge is not necessary to demonstrate bad moral character although it may show moral depravity. [Agpalo]
Bar Examinations When to file for permit Rules of Court, Rule 138, Sec. 7 – At least 15 days before the beginning of the examination. Applicants must submit affidavits of age, residence, citizenship, legal education. Notice
Good moral character is what a person really is, as distinguished from good reputation or from the opinion generally entertained of him, the estimate in which he is held by the public in the place where he is known. [In the matter of of Haron S. Meling, (2004)]
Rules of Court, Rule 138, Sec. 8 – Notice of applications for admission shall be published by the clerk of the SC in newspapers published in Filipino English and Spanish for at least 10 days before the beginning of the examination.
SC may deny lawyer’s oath-taking based on a conviction for reckless imprudence resulting in homicide (hazing case). But after submission of evidence and various certifications “he may now be regarded as complying with the requirements of good moral character…he is not inherently of bad moral fiber.” [In Re Argosino, (1997)]
Conduct of Examinations Rules of Court, Rule 138, Sec. 10 – Questions will be in English or Spanish, to be answered in writing by examines. No oral examinations. If penmanship is poor, SC may allow upon verified application the use of a noiseless typewriter. Committee will take all precautions to prevent the substitution of papers or commission of other frauds. No
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papers, books or notes allowed into the examination rooms. Examinees shall not place their names on the examination papers.
Rules of Court, Rule 138, Sec. 15 – Committee must file its report on the results not later than February 15th after the examination or as soon thereafter as may be practicable.
When and Where to take the Exam Flunkers
Rules of Court, Rule 138, Sec. 11 – In four days designated by bar examiner annually in the city of Manila.
Rule 138, Sec. 16 – Retakers must apply again. Candidates who have failed the bar examinations for three times shall be disqualified from taking another examination unless they show proof of reenrollment and successful completion of regular fourth year review classes as well as attended a pre-bar review course in a recognized law school.
Subjects [Rule 138, Sec. 9 and 11] Political (Constitutional Law, Public Corporations and Public Officers) and International Law (Private and Public) 1st (morning) day Labor and Social Legislation (afternoon) 2nd day 3rd day 4th day
Mercantile Law (morning)
The professors of the individual review subjects 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.
Criminal Law (afternoon)
Remedial Law (Civil Procedure, Criminal Procedure and Evidence) (morning)
Rule 138, Sec. 13 - No candidate shall endeavor to influence any member of the committee. During examination the candidates shall not communicate with each other and shall not give or receive any assistance.
Civil Law (morning) Taxation (afternoon)
Legal Ethics and Practical Exercises (in Pleading and Conveyancing) (afternoon)
Violators will be punished by disqualification, counted as a failure. Further disciplinary action, including permanent disqualification, may be taken in the discretion of the court.
Rules of Court, Rule 138, Sec. 14 – A general average of 75% in all subjects without falling below 50 % in any subject. Relative Weights Civil Law
The requirements for ‘good and regular standing’ are: (1) Membership in the IBP (2) Payment of IBP dues (3) Payment of professional tax (4) Compliance with the MCLE (5) Good moral character
Labor and Social Legislation
Political and International Law
Legal Ethics and Practical Exercises
Passing the bar exam as civil service eligibility. – First grade civil service eligibility for any position Second grade civil service eligibility for position which does not prescribe proficiency in law APPEARANCE OF NON-LAWYERS LAW STUDENT PRACTICE
Who makes the Exam
Rules of Court, Rule 138-A 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 represent indigent clients accepted by the legal clinic of the law school.
Rules of Court, Rule 138, Sec. 12 - One member of the SC acts as Chairman, plus eight members of the bar who act as examiners who hold office for one year. Beginning in 2009, there will be two examiners per subject. The Bar Confidant acts as a sort of liaison officer between the court and the Bar Chairman on the other hand, and the individual members of the committee on the other. He is at the same time a deputy clerk of court.
Section 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 filed, must be signed by the supervising attorney for and in behalf of the legal clinic.
The names of the members of this committee shall be published in each volume of the official reports
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Rules of Court, Rule 138-A, Section 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.
Rules of Court, Rule 115, Sec. 1 (c) provides that an accused may waive his right to counsel but if he cannot protect his rights without the assistance of a counsel, the Court should advise him to secure a counsel de parte or appoint a counsel de officio to represent him.
Rules of Court, Rule 138-A, Section 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. [Circular No. 19, dated December 19, 1986].
Right To Counsel: Absolute and immutable, however, the trial court (TC) may restrict his option to retain a counsel de parte if: (1) the accused insists on an attorney he cannot afford (2) chosen counsel is not a lawyer or (3) the attorney declines to represent the accused for a valid reason, in which case the TC will appoint his counsel de officio to represent him.
Rules of Court, Rule 138, Section. 34. A law student may appear in his personal capacity without the supervision of a lawyer in inferior courts.
Counsel de officio - A counsel, appointed or assigned by the court, from among members of the Bar in good standing who, by reason of their experience and ability, may adequately defend the accused
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. [Cruz v. Mina (2007)]
Counsel de parte - A counsel employed or retained by the party, or the accused.
NON-LAWYERS IN COURTS
NON-LAWYERS IN ADMINISTRATIVE TRIBUNALS
Agent or Friend
Appearance of non-lawyers in administrative tribunals (e.g. NLRC, cadastral court) is allowed but only if they represent themselves, their organization or its members.
Rules of Court, Rule 138, Sec. 34. In such cases, no attorney client relationship exists; not habitual. An agent is usually appointed or a friend chosen in a locality where a licensed member of the bar is not available.
Limitations (1) Non-adversarial contentions (2) Not habitually rendered (3) Not charge for payment.
Civil case - a party in a civil suit may conduct his litigation either personally or with the aid of an attorney unless the party is a juridical person. Allowed in MTC, RTC, appellate court.
PROCEEDINGS WHERE LAWYERS ARE PROHIBITED FROM APPEARING
Small Claims Cases
Criminal case - in a locality where a lawyer is unavailable, a judge may appoint a non-lawyer who is a resident of the province, and of good repute for probity and ability to defend the accused. Allowed up to MTC-level only.
Rules of Procedure for Small Claims Cases, AM No.08-8-7, Sec. 17. Appearance of Attorneys Not Allowed. — No attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is the plaintiff or defendant.
Appearance as law student v. appearance as agent/friend. – Appearance of a non-lawyer is allowed in inferior courts, 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, (2007)]
Katarungang Pambarangay RA 7160, Sec. 415. In all katarungang pambarangay proceedings the parties must appear in person without the assistance of counsel or representative except for minors and incompetents who may be assisted by their next of kin who are not lawyers.
Self-representation Rules of Court, Rule 138, Sec. 34. By whom litigation 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.
SANCTIONS FOR PRACTICE OR APPEARANCE WITHOUT AUTHORITY (1) Lawyers without authority (2) Persons not lawyers Shari’a Bar passers are not full-fledged Philippine Bar members so they may only practice before Shari’a courts. Both are counselors, but only the latter is an “attorney.” [Alawi v. Alauya, (1997)] REMEDIES AGAINST UNAUTHORIZED PRACTICE
(1) Petition for Injunction (2) Declaratory Relief
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(3) Contempt of Court (4) Disqualification and complaints for disbarment (5) Criminal complaint for estafa against the person who falsely represented himself as a lawyer to the damage of another
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before the SC an oath of office. Form 28 of the Judicial Standard Forms prescribes the following oath to be taken by the applicant: I, _____, do solemnly swear that I will maintain allegiance to the Republic of the Philippines.
PUBLIC OFFICIALS AND PRACTICE OF LAW PROHIBITION OR DISQUALIFICATION OF FORMER GOVERNMENT ATTORNEYS
I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein;
Section 7 of R.A. No. 6713 generally provides for the prohibited acts and transactions of public officials and employees. Subsection (b)(2) prohibits them from engaging in the private practice of their profession during their incumbency. As an exception, a public official or employee can engage in the practice of his or her profession under the following conditions: first, the private practice is authorized by the Constitution or by the law; and second, the practice will not conflict or tend to conflict with his or her official functions.
I will do no falsehood nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit nor give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the court as to my clients; and
PUBLIC OFFICIALS WHO CANNOT PRACTICE LAW OR WITH RESTRICTIONS
I impose upon myself this voluntary obligation, without any mental reservation or purpose of evasion.
Absolute Prohibition (1) Judges and other officials as SC employees [Rule 148, Sec. 35] (2) OSG officials and employees (3) Gov’t. prosecutors [People v. Villanueva] (4) Pres., VP, cabinet members, their deputies and assistants, [Const., Art. VIII Sec. 15] (5) Constitutional Commissions Chairmen and Members [Const. Art. IX-A, Sec. 2] (6) Ombudsman and his deputies [Const., Art. IX, Sec. 8, par. 2] (7) All governors, city and municipal mayors [R.A. No. 7160, Sec. 90] (8) Those who, by special law, are prohibited from engaging in the practice of their legal profession
So help me God. The lawyer’s oath is not a mere ceremony or formality for practicing law. Every lawyer should at all times weigh his actions according to the sworn promises he makes when taking the lawyer’s oath. If all lawyers conducted themselves strictly according to the lawyer’s oath and the Code of Professional responsibility, the administration of justice will undoubtedly fairer, faster and easier for everyone concerned. [In Re: Argosino, (1997)] IMPORTANT TERMS TO REMEMBER:
Amicus curiae Latin for “friend of court,” a lawyer who assists the court by giving information or advice regarding questions of law or of fact. He does not represent any party.
Relative Prohibition (1) Senators and House of Representatives members (prohibition to appear) [Const. Art VI, Sec. 14] (2) Sanggunian Members [RA No. 7160, Sec. 91]
Attorney Officers of the courts, empowered to appear, prosecute and defend, and upon whom peculiar duties, responsibilities and liabilities are developed by law as a consequence. [Cui v. Cui (1964)]
Special Restrictions Retired judges [RA 910, Sec. 1, as amended] A retired justice or judge receiving a pension from the Government cannot act as counsel in any civil case in which the Government or any of its subdivision or agencies is the adverse party or in a criminal case wherein an officer or employee of the Gov’t. is accused of an offense in relation to his office. [R.A. No. 910]
Bar Refers to the whole body of attorneys and counselors, collectively, the members of the legal profession Barrister In England, a person entitled to practice law as an advocate or counsel in the superior court.
LAWYERS AUTHORIZED TO REPRESENT THE GOVERNMENT Any person appointed to appear for the Government of the Philippines shall be allowed to appear in court, subject to pertinent laws.
Bench Denotes the whole body of judges
Notary Public A public officer authorized by law to certify documents, take affidavits, and administer oaths. Under the 2004 Rules on Notarial Practice, all notaries must be lawyers.
Rules of Court, Sec. 17. 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
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Canon 5: Participate In Legal Education Canon 6: Canons Apply to Lawyers in Government Service
Solicitor In England, a person prosecuting or defending suits in Courts of Chancery. In the Philippines, a Government lawyer attached with the Office of the Solicitor General.
LAWYER’S DUTIES TO THE LEGAL PROFESSION
Canon 7: Uphold Dignity And Integrity In The Profession Canon 8: Courtesy, Fairness, Candor Towards Professional Colleagues Canon 9: Unauthorized Practice Of Law
Duties & Responsibilities of Lawyers
LAWYER’S DUTIES TO THE COURTS
Canon 10: Observe Candor, Fairness And Good Faith Canon 11: Respect Courts And Judicial Officers Canon 12: Assist In Speedy And Efficient Administration of Justice Canon 13: Refrain From Act Giving Appearance of Influence
LEGAL ETHICS It is that branch of moral science which treats of the duties which an attorney at law owes to his clients, to the courts, to the bar and to the public. [G.A. Malcolm, Legal and Judicial Ethics 8, 1949]
LAWYER’S DUTIES TO THE CLIENT
DUTIES OF A LAWYER
Canon 14: Canon 15: Canon 16: Canon 17: Canon 18: Canon 19: Canon 20: Canon 21: Canon 22:
Rules of Court, Rule 138, Sec. 20 (1) To maintain allegiance to the Republic of the Phils. and to support the Constitution and obey the laws of the Phils.; (2) To observe and maintain the respect due to the courts of justice and judicial officers; (3) 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; (4) 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; (5) 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; (6) 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; (7) 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; (8) Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed; (9) 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.
Service To The Needy Observe Candor, Fairness, Loyalty Hold In Trust Client’s Moneys And Properties Trust And Confidence Competence And Diligence Representation With Zeal Attorney’s Fees Preserve Client’s Confidence Withdrawal Of Services For Good Cause
DUTIES TO SOCIETY RESPECT FOR LAW AND LEGAL PROCESSES
Canon 1. A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law of and legal processes. Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. Rules of Court, 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 the admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willful 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.
THE FOUR-FOLD DUTIES OF A LAWYER (PER THE CODE OF PROFESSIONAL RESPONSIBILITY) LAWYER’S DUTIES TO SOCIETY Canon 1: Promote and Respect the Law and Legal Process Canon 2: Provide Efficient And Convenient Legal Services Canon 3: Information On Legal Services That Is True, Honest, Fair And Dignified Canon 4: Support For Legal Reforms And Administration Of Justice
Unlawful conduct An act or omission which is against the law. Dishonesty involves lying or cheating. [Agpalo] When lawyers are convicted of frustrated homicide, the attending circumstances, not the mere fact of their conviction would demonstrate their fitness to remain in the legal profession. [Soriano v. Dizon, (2006)]
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Immoral or deceitful conduct That which is willful, flagrant or shameless and which shows a moral indifference to the opinion of the good and respectable members of the community. [Aguirre]
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Rule 1.03. A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man's cause. Barratry or “Maintenance” Inciting or stirring up quarrels, litigation or groundless lawsuits
Immorality connotes conduct that shows indifference to the moral norms of society. For such conduct to warrant disciplinary action, the same must be grossly immoral, it must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree. [Ui v. Bonifacio (2000)]
Examples: (1) Volunteering advice to bring lawsuit, except in rare cases where ties of blood, relationship or trust make it his duty to do so (2) Hunting up defects in titles or other causes of action in order to be employed to bring suit or breed litigation
Moral Turpitude “Includes everything which is done contrary to justice, honesty, modesty, or good morals”. It involves an act of baseness, vileness, or depravity in the private duties which a man owed his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman, or conduct contrary to justice, honesty, modesty, or good morals. [Barrios v. Martinez, (2004)]
Ambulance Chasing Accident-site solicitation of almost any kind of legal business by laymen employed by an attorney for the purpose or by the attorney himself. (a) Supports perjury, the defrauding of innocent persons by judgments, upon manufactured causes of actions and the defrauding of injured persons having proper causes of action but ignorant of legal rights and court procedure.
Examples of Crimes involving moral turpitude Murder, estafa, rape, violation of BP 22, bribery, bigamy, adultery, seduction, abduction, concubinage, smuggling.
A lawyer may be disciplined in his professional and private capacity. The filing of multiple complaints reflects on his fitness to be a member of the legal profession. His conduct of vindictiveness a decidedly undesirable trait especially when one resorts to using the court not to secure justice but merely to exact revenge warrants his dismissal from the judiciary. [Saburnido v. Madrono, (2001)]
Examples of grossly-immoral acts (1) Wanton disregard for the sanctity of marriage as shown when respondent pursued a married woman and thereafter cohabited with her. [Guevarra v. Eala, (2007)] (2) The rape of his neighbor's wife constituted serious moral depravity even if his guilt was not proved beyond reasonable doubt in the criminal prosecution for rape. [Calub v. Suller (2000)]
Rule 1.04. A lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement.
Examples of Acts which are NOT grossly immoral (1) Mere intimacy between a man and a woman, both of whom possess no impediment to marry, voluntarily carried and devoid of deceit on the part of the respondent, even if a child was born out of wedlock of such relationship. It may suggest a doubtful moral character but not grossly immoral. [Figueroa v. Barranco, (1997)] (2) Stealing a kiss from a client [Advincula v. Macabata (2007)]
The function of a lawyer is not only to conduct litigation but to avoid it where possible, by advising settlement or withholding suit. He must act as mediator for compromise rather than an instigator and conflict. [Agpalo] The lawyer abetted his client in using the courts to subvert the very ends of justice by instigating controversy and conflict although the client's cause is without merit. It is every duty of a counsel to advise his client on the merit of his case. A lawyer must resist the whims and caprices of his clients, and temper his client’s propensity to litigate. [Castaneda v. Ago, (1975)]
Rule 1.02. A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.
EFFICIENT AND CONVENIENT LEGAL SERVICES
The SC does not claim infallibility, it will not denounce criticism made by anyone against the Court for, if well founded can truly have constructive effects in the task of the Court, but will not countenance any wrong doing nor allow erosion of the people's faith in the judicial system. [Estrada v. Sandiganbayan (2003)]
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.
The promotion of organizations, with knowledge of their objectives, for the purpose of violating or evading the laws constitutes such misconduct in his office. [In re Terrell, (1903)]
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Defenseless Those who could not defend themselves for various reasons such as poverty, ignorance or weakness
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appear for and in behalf of parties in courts of law and quasi-judicial agencies, including but not limited to the National Labor Relations Commission, National Conciliation and Mediation Board, Department of Labor and Employment Regional Offices, Department of Agrarian Reform Adjudication Board and National Commission for Indigenous Peoples. The term "practicing lawyers" shall exclude: (i) Gov't. employees and incumbent elective officials not allowed by law to practice; (ii) Lawyers who by law are not allowed to appear in court; (iii) Supervising lawyers of students enrolled in law student practice in duly accredited legal clinics of law schools and lawyers of non-Gov't.al organizations (NGOs) and peoples’ organizations (POs) like the Free Legal Assistance Group who by the nature of their work already render free legal aid to indigent and pauper litigants and (iv) Lawyers not covered under subparagraphs (i) to (iii) including those who are employed in the private sector but do not appear for and in behalf of parties in courts of law and quasi-judicial agencies.
Oppressed Those who have been subjected to cruelty, domination or harsh treatment Legal aid is not a matter of charity. It is a means for the correction of social imbalance that may and often do lead to injustice, for which reason it is a public responsibility of the Bar. [IBP Handbook, Guidelines Governing the Establishment and Operation of the Legal Aid Office, Art. 1, Sec. 1] Valid grounds for refusal [Rule 14.03]: (1) He is in no position to carry out the work effectively or competently (2) He labors under a conflict of interest between him and the prospective client or between a present client and the prospective client. Rules of Court, Rule 138, Sec. 3. Attorneys for destitute litigants — A court may assign an attorney to render professional aid free of charge to any party in a case if upon investigation it appears that the party is destitute and unable to employ an attorney and that the services of counsel are necessary to secure the ends of justice and to protect the rights of the party. It shall be the duty of the attorney so assigned to render the required service unless he is excused therefrom by the court for sufficient cause shown.
(b) Indigent and pauper litigants are those defined under Rule 141, Section 19 of the ROC and (Algura v. The Local Gov't. Unit of the City of Naga, 2006) Sec. 19. Indigent litigants exempt from payment of legal fees. – Indigent litigants (a) whose gross income and that of their immediate family do not exceed an amount double the monthly minimum wage of an employee and (b) who do not own real property with a fair market value as stated in the current tax declaration of more than three hundred thousand (P300,000.00) pesos shall be exempt from payment of legal fees.
The legal profession is a burdened privilege not many are qualified to undertake. A lawyer owes fidelity to the duty required of the legal profession. In this case, since there is no incompatibility between the defense of the appellant’s client and his being an election registrar, he should not decline his appointment as counsel de oficio. [Ledesma v. Climaco, (1974)]
The legal fees shall be a lien on any judgment rendered in the case favorable to the indigent litigant unless the court otherwise provides.
Bar Matter No. 2012 (2009) Proposed Rule on Mandatory Legal Aid Service for Practicing Lawyers
To be entitled to the exemption herein provided, the litigant shall execute an affidavit that he and his immediate family do not earn a gross income abovementioned, and they do not own any real property with the fair value aforementioned, supported by an affidavit of a disinterested person attesting to the truth of the litigant's affidavit. The current tax declaration, if any, shall be attached to the litigant's affidavit.
Purpose. - to enhance the duty of lawyers to society as agents of social change and to the courts as officers thereof by helping improve access to justice by the less privileged members of society and expedite the resolution of cases involving them; To aid the efficient and effective administration of justice especially in cases involving indigent and pauper litigants.
Any falsity in the affidavit of litigant or disinterested person shall be sufficient cause to dismiss the complaint or action or to strike out the pleading of that party, without prejudice to whatever criminal liability may have been incurred.”
Scope. - This Rule shall govern the mandatory requirement for practicing lawyers to render free legal aid services in all cases (whether, civil, criminal or administrative) involving indigent and pauper litigants where the assistance of a lawyer is needed. It shall also govern the duty of other members of the legal profession to support the legal aid program of the Integrated Bar of the Philippines.
Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. [Const. Art. III, Sec. 11] Requirements Every practicing lawyer is required to render a minimum of sixty (60) hours of free legal aid services to indigent
(a) Practicing lawyers are members of the Phil. Bar who
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litigants in a year. Said 60 hours shall be spread within a period of twelve (12) months, with a minimum of five (5) hours of free legal aid services each month. He shall coordinate with the Clerk of Court for cases where he may render free legal aid service and shall be required to secure and obtain a certificate from the Clerk of Court attesting to the number of hours spent rendering free legal aid services in a case.
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disbarred or suspended from his office as attorney by the SC for any… malpractice. [Rule 138, Sec. 27] Rule 2.04. A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant. This rule prohibits the competition in the matter of charging professional fees for the purposed of attracting clients in favor of the lawyer who offers lower rates. The rule does not prohibit a lawyer from charging a reduced fee or none at all to an indigent or to a person who would have difficulty paying the fee usually charged for such services. [Agpalo]
Penalties A practicing lawyer shall be required to explain why he was unable to render the minimum prescribed number of hours. If no explanation has been given or if the National Committee on Legal Aid (NCLA) finds the explanation unsatisfactory, the NCLA shall make a report and recommendation to the IBP Board of Governors for the erring lawyer to be declared a member of the IBP who is not in good standing.
TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE INFORMATION ON LEGAL SERVICES
Canon 3. A lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts.
After acceptance of the recommendation, the lawyer shall be declared a member not in good standing. He will be furnished a notice that includes a directive to pay P4000 penalty which shall accrue to the special fund for the legal aid program of the IBP.
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.
Any lawyer who fails to comply with his duties under this Rule for at least three (3) consecutive years shall be the subject of disciplinary proceedings to be instituted motu proprio by the Committee on Bar Discipline.
The most worthy and effective advertisement possible 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.
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.
Allowable advertisement (Exceptions to Rule 3.01) (1) Ordinary professional card (2) Publication in reputable law list with brief biographical and other informative data which may include: (a) name (b) associates (c) address (d) phone numbers (e) branches of law practiced (f) birthday (g) day admitted to the bar (h) schools and dates attended (i) degrees and distinctions (j) public or quasi-public offices (k) posts of honor (l) legal authorships (m) teaching positions (n) associations (o) legal fraternities and societies (p) references and regularly represented clients must be published for that purpose (3) Publication of simple announcement of opening of law firm, change of firm (4) Listing in telephone directory but not under designation of special branch of law (5) If acting as an associate (specializing in a branch of law), may publish a brief and dignified announcement to lawyers (law list, law journal) (6) If in media, those acts incidental to his practice and not of his own initiative (7) Writing legal articles
Advice may be on what preliminary steps to take until the client has secured the services of counsel. But he shall refrain from giving legal advice if the reason for not accepting the case is that there involves a conflict of interest between him and a prospective client or between a present client and a prospective client. [Agpalo] Rule 2.03. A lawyer shall not do or permit to be done any act designed primarily to solicit legal business. The legal practice is not a business but a profession. Unlike a businessman, the lawyer has: (1) Relation to the administration of justice involving sincerity, integrity and reliability as an “officer of the court”; (2) Duty of public service; (3) Relation to clients with the highest degree of fiduciary; (4) Relation to colleagues at the bar characterized by candor, fairness and unwillingness to resort to business methods of advertising and encroachment on their practice, or dealing directly with their clients. [Agpalo] Malpractice The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. A member of the bar may be
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(8) Activity of an association for the purpose of legal representation
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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.
If entering into other businesses which are not inconsistent with lawyer’s duties It is advisable that they be entirely separate and apart such that a layman could distinguish between the two functions.
The purpose of the rule is to prevent the law firm from using his name to attract legal business and to avoid suspicion of undue influence. [Agpalo]
Prohibited advertisement [Sec. 27, Canon of Professional Ethics]: (1) Through touters of any kind whether allied real estate firms or trust companies advertising to secure the drawing of deeds or wills (2) Offering retainers in exchange for executorships or trusteeships to be influenced by the lawyer (3) Furnishing or inspiring newspaper comments concerning the manner of their conduct, the magnitude of the interests involved, the importance of lawyer’s position, and all other like self-laudation
A civil service officer or employee whose duty or responsibility does not require his entire time to be at the disposal of the government may not engage in the private practice of law without the written permit from the head of the department concerned. [Agpalo] It is unlawful for a public official or employee to, among others: "engage in the private practice of their profession, unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with official functions." [Samonte v. Gatdula, (1999)]
A lawyer may not properly publish his brief biographical and informative data in a daily paper, magazine, trade journal or society program in order to solicit legal business. [Khan v. Simbillo, (2003)]
If the unauthorized practice on the part of a person who assumes to be an attorney causes damage to a party, the former may be held liable for estafa. 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.
It is highly unethical for an attorney to advertise his talents or skill as a merchant advertises his wares. The law is a profession not a business. Solicitation of cases by himself or through others is unprofessional and lowers the standards of the legal profession. [In re Tagorda, (1929)]
The purpose of this rule is to prevent some lawyers from gaining an unfair advantage over others through the use of gimmickry, press agentry or other artificial means.
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.
This rule prohibits from making indirect publicity gimmick, such as furnishing or inspiring newspaper comments, procuring his photograph to be published in connection with cases which he is handling, making a courtroom scene to attract the attention of newspapermen, or arranging for the purpose an interview with him by media people. [Agpalo]
General Rule : All partners in firm name must be alive. Exception: 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. [Agpalo]
PARTICIPATION IN THE IMPROVEMENT AND REFORMS IN LEGAL SYSTEM
Reason for Exception: All partners by their joint efforts over a period of years contributed to the goodwill attached to the firm name, and the removal of the deceased partner’s name disturbs the client goodwill built through the years.
Canon 4. A lawyer shall participate in the development of the Legal System by initiating or supporting efforts in law reform and in the improvement of the administration of justice.
General Rule : Filipino lawyers cannot practice law under the name of a foreign law firm.
Examples (1) Present position papers or resolutions for the introduction of pertinent bills in Congress; (2) Submit petitions to the SC for the amendment of the ROC. (3) The Misamis Oriental Chapter of the IBP promulgating a resolution wherein it requested the IBP’s NCLA to ask for the exemption from the payment of filing, docket and other fees of clients of the legal aid offices in the various IBP chapters [Re: Request Of National Committee On Legal Aid To Exempt Legal Aid Clients From Paying Filing, Docket And Other Fees, (2009)]
Firms may not use misleading names showing association with other firms to purport legal services of highest quality and ties with multinational business enterprise especially when such firm attached as an associate cannot legally practice law in the Phils. [Dacanay v. Baker and McKenzie, (1985)]
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Exemptions (1) President, vice-president, cabinet members (2) Members of Congress (3) Chief Justice and incumbent and retired members of the judiciary (4) Chief state counsel, prosecutor and assistant secretaries of the Department of Justice (5) Solicitor General and assistants (6) Gov’t. Corporate Counsel, his deputies and assistants (7) Chairman and members of Constitutional Commissions (8) Ombudsman and his deputies (9) Heads of Gov’t. agencies exercising quasi-judicial functions (10)Incumbent deans, bar reviewers and professors of law who have 10 year teaching experience (11) Officers and lecturers of the Phil. Judicial Academy (12) Governors and mayor (13) Those not in law practice (special exemption) (14) Those who have retired from the law practice (special exemption) (15) A member may file a verified request setting forth good cause for exemption (such as physical disability, illness, post graduate study abroad, proven expertise in law, etc.)
PARTICIPATION IN LEGAL EDUCATION PROGRAM
Canon 5. A lawyer shall keep abreast of legal developments participate in continuing legal education programs support efforts to achieve high standards in law schools as well as in the practical training of law students and assist in disseminating the law and jurisprudence. Obligations (1) To self for continued improvement of knowledge (2) To his profession for maintenance of high standards of legal education (3) To the public for social consciousness Bar Matter No. 850 (2000) Purpose: To ensure that lawyers throughout their career keep abreast with law and jurisprudence, maintain the ethics of the profession and enhance the standards of the practice of law Requirement: Every 3 years at least 36 hours of legal education activities. Legal ethics 6 hrs Trial and pre-trial skills
Alternative dispute resolution Updates on substantive procedural laws and jurisprudence Writing and oral advocacy International law and international conventions Other subjects as may be prescribed by the Committee on MCLE
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Penalty: (1) Non-Compliance Fee of Php 1,000.00. (2) Listing as a delinquent member of the IBP
9 hrs 4 hrs
Bar Matter No. 1922 (2008) Practicing members of the bar are required to INDICATE in all pleadings filed before the courts or quasi-judicial bodies, the number and date of issue of their MCLE Certificate of Compliance or Certificate of Exemption, as may be applicable, for the immediately preceding compliance period.
2 hrs 6 hrs
Legal Education Activities (1) Participatory (a) Attending approved education activities like seminars, conferences, conventions, symposia, inhouse education programs, workshops, dialogues or round table discussion. (b) Speaking or lecturing, or acting as assigned panelist, reactor, commentator, resource speaker, moderator, coordinator or facilitator in approved education activities. (c) Teaching in a law school or lecturing in a bar review class.
Penalty: Failure to disclose the required information would cause the dismissal of the case and the expunction of the pleadings from the records. Canon 6. These canons shall apply to lawyers in Gov’t. services in the discharge of their tasks. A member of the Bar who assumes public office does not shed his professional obligation. Lawyers in Gov’t. are public servants who owe the utmost fidelity to the public service. A lawyer in public service is a keeper of public faith and is burdened with a high degree of social responsibility, perhaps higher than her brethren in private practice. [Vitriolo v. Dasig, (2003)]
(2) Non-Participatory (a) Preparing, as an author or co-author, written materials published or accepted for publication, e.g., in the form of an article, chapter, book, or book review which contribute to the legal education of the author member, which were not prepared in the ordinary course of the member’s practice or employment. (b) Editing a law book, law journal or legal newsletter.
Related Statutory Basis RA 6713, Sec. 4 (A) or the Code of Conduct and Ethical Standards for Public Officials and Employees. Every public official and employee shall observe the following as standards of personal conduct in the discharge and execution of official duties: (1) Commitment to public interest – uphold the public interest over and above personal interest. (2) Professionalism – perform and discharge their duties
(3) Other activities credited to MCLE – Rendering Mandatory Legal Aid Services [Bar Matter No. 2012, Sec 8]
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with the highest degree of excellence, professionalism, intelligence and skill (3) Justness and sincerity – not discriminate against anyone, especially the poor and the underprivileged (4) Political neutrality - provide service to everyone without unfair discrimination and regardless of party affiliation or preference (5) Responsiveness to the public- extend prompt, courteous, and adequate service to the public (6) Nationalism and patriotism- be loyal to the Republic and to the Filipino people, promote the use of locally produced goods, resources and technology and encourage appreciation and pride of country and people. (7) Commitment to democracy - commit themselves to the democratic way of life and values, maintain the principle of public accountability, and manifest by deeds the supremacy of civilian authority over the military. (8) Simple living - lead modest lives appropriate to their positions and income
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Rule 6.03. A lawyer shall not, after leaving Gov't. service, accept engagement or employment in connection with any matter in which he had intervened while in said service. How a Gov't. Lawyer Leaves Gov't. Service: (1) Retirement (2) Resignation (3) Expiration of the term of office (4) Dismissal (5) Abandonment General Rule: Practice of profession allowed immediately after leaving public service Exceptions: If lawyer had connection with any matter during his term, subject to (1) One year prohibition if he had not intervened (2) Permanent prohibition if he had intervened One Year Prohibition RA 3019 or the Anti-Graft and Corrupt Practices Act. Sec. 3(d) - Corrupt practices of any public officer include: (d) Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination.
Rule 6.01. The primary duty of a lawyer engaged in public prosecution is not to convict but to see that justice is done. The suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action.
RA 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees. Sec. 7(b) - Outside employment and other activities. Public officials and employees during their incumbency shall not: (1) Own, control, manage or accept employment as officer employee, consultant, counsel, broker, agent, trustee or nominee / in any private enterprise regulated, supervised or licensed by their office / unless expressly allowed by law; (2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions; (3) Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office.
A public prosecutor is a quasi-judicial officer with the twofold aim of which is that guilt shall not escape or innocence suffer. he should not hesitate to recommend to the court the accused's acquittal if the evidence in his possession shows that the accused is innocent. [Agpalo] It is upon the discretion of the prosecutor to decide what charge to file upon proper appreciation of facts and evidences. Fiscals are not precluded from exercising their sound discretion in investigation. His primary duty is not to convict but to see that justice is served. [People v. Pineda, (1967)] Rule 6.02. A lawyer in government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties.
These prohibitions shall continue to apply for a period of one year after resignation, retirement or separation from public office, except in case of subparagraph (2) above, but the professional concerned cannot practice his profession in connection with any matter before the office he used to be with, in which case the one year prohibition shall likewise apply.
In relation to Rule 3.03, if the law allows a public official to practice law concurrently, he must not use his public position to feather his law practice. Moreover, he should not only avoid all impropriety. Neither should he even inferentially create a public image that he is utilizing his public position to advance his professional success or personal interest at the expense of the public. [Agpalo]
Relative Prohibition Retired Judges and Justices
It bears stressing also that Gov't. lawyers who are public servants owe fidelity to the public service, a public trust. As such, Gov't lawyers should be more sensitive to their professional obligations as their disreputable conduct is more likely to be magnified in the public eye. [Huyssen vs Gutierrez (2006)]
RA 910 on retirement of justices and judges Sec. 1. No retiring justice or judge of a court of record or city or municipal judge during the time that he is receiving said pension shall appear as counsel in any court in any civil case where (1) the Gov't. or any of its subdivisions or instrumentalities is an adverse party
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Purpose of the IBP (1) Assist in the administration of justice; (2) Foster and maintain on the part of its members high ideals of integrity, learning, professional competence, public service and conduct; (3) Safeguard the professional interest of its members; (4) Cultivate among its members a spirit of cordiality and brotherhood; (5) Provide a forum for the discussion of law, jurisprudence, law reform, pleading, practice and procedure, and the relations of the Bar to the Bench and to the public, and publish information relating thereto; (6) Encourage and foster legal education; (7) Promote a continuing program of legal research in substantive and adjective law, and make reports and recommendations thereon.
(2) in a criminal case, where an officer or employee of the Gov't. is accused of an offense related to his official function (3) in any administrative proceeding, cannot collect any fee for his appearance to maintain an interest adverse to the Gov't. Permanent Prohibitions on matters which he had intervened The “matter” contemplated in this rule are those that are adverse-interest conflicts (substantial relatedness and adversity between the Gov't. matter and the new client’ matter in interest) and congruent-interest representation conflicts, while the “intervention” should be significant and substantial which can or have affected the interest of others. [PCGG v. Sandiganbayan, (2005)] On members of the legislature 1987 Constitution, Art. VI, Sec. 13. No member of legislature may accept an appointment in an office which he created or increased emoluments thereof.
The basic postulate of the IBP is that it is non-political in character and that there shall be neither lobbying nor campaigning in the choice of the IBP Officers. The fundamental assumption is that the officers would be chosen on the basis of professional merit and willingness and ability to serve. The unseemly ardor with which the candidates pursued the presidency of the association detracted from the dignity of the legal profession. The spectacle of lawyers bribing or being bribed to vote did not uphold the honor of the profession nor elevate it in the public’s esteem. [In re 1989 Elections of the IBP, (1989)]
THE LEGAL PROFESSION STATUTORY BASIS
Canon 7: A lawyer shall at all times uphold the integrity and dignity of the legal profession and support the activities of the integrated bar. INTEGRATED BAR OF THE PHILIPPINES
Membership and Dues Statutory Basis
RA 6397. The Supreme Court may adopt rules of court to effect the integration of the Philippine Bar under such conditions as it shall see fit in order to raise the standards of the legal profession improve the administration of justice and enable the bar to discharge its public responsibility more effectively.
Rules of Court, Rule 139-A, Section 9. Membership dues. — Every member of the Integrated Bar shall pay such annual dues as the Board of Governors shall determine with the approval of the Supreme Court. A fixed sum equivalent to ten percent (10%) of the collection from each Chapter shall be set aside as a Welfare Fund for disabled members of the Chapter and the compulsory heirs of deceased members thereof.
Integration does not make a lawyer a member of any group of which he is not already a member. He became a member of the Bar when he passed the Bar examinations. All that integration actually does is to provide an official national organization for the well-defined but unorganized and incohesive group of which every lawyer is already a member. [In the matter of the Integration of the Bar of the Philippines, (1973)]
Section 10. Effect of non-payment of dues. — Subject to the provisions of Section 12 of this Rule, default in the payment of annual dues for six months shall warrant suspension of membership in the Integrated Bar, and default in such payment for one year shall be a ground for the removal of the name of the delinquent member from the Roll of Attorneys.
The IBP is essentially a semi-governmental entity, a private organization endowed with certain governmental attributes. While it is composed of lawyers who are private individuals, the IBP exists to perform certain vital public functions and to assist the government particularly in the improvement of the administration of justice, the upgrading of the standards of the legal profession, and its proper regulation.
A membership fee in the Integrated Bar is an exaction for regulation, while the purpose of a tax is revenue. If the Court 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 push through an Integrated Bar program without means to defray the concomitant expenses. The doctrine of implied powers necessarily includes the power to impose such an exaction. [In the matter of the Integration of the Bar of the Philippines, (1973)]
General Objectives of the IBP (1) To elevate the standards of the legal profession (2) To improve the administration of justice (3) To enable the Bar to discharge its public responsibility more effectively.
A lawyer can engage in the practice of law only by paying his dues, and it does not matter if his practice is “limited.”
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Moreover, senior citizens are not exempted from paying membership dues. [Santos v. Llamas, (2000)]
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It is not necessary for a lawyer to be convicted for an offense before a lawyer can be disciplined for gross immorality. [Agpalo]
There is nothing in the law or rules which allows exemption from payment of membership dues [even if the lawyer is staying abroad]. At most, as correctly 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 membership in the IBP could have been terminated and his obligation to pay dues could have been discontinued. [Letter of Atty. Cecilio Arevalo (2005)]
Some acts which adversely reflect on a lawyer’s fitness: (1) Having adulterous relationships or keeping mistresses. That "men by nature are polygamous" is not an excuse. Saying that what happened was "nothing but mutual lust and desire" shows reprehensible, amoral attitude of the lawyer [Zaguirre v. Castillo (2003)] (2) Siring a child with a woman other than legal wife (Id) (3) Conviction of a crime involving moral turpitude (4) Commission of fraud or falsehood
UPHOLDING THE DIGNITY AND INTEGRITY OF THE PROFESSION
COURTESY, FAIRNESS AND CANDOR TOWARDS PROFESSIONAL COLLEAGUES
Rule 7.01 – A lawyer shall be answerable for knowingly making a false statement or suppressing a material fact in connection with his application for admission to the bar.
Statutory Basis Canon 8. A lawyer shall not, in his professional dealings, use language which is abusive offensive or otherwise improper.
A lawyer must be a disciple of truth. While a lawyer has the solemn duty to defend his client’s rights and is expected to display the utmost zeal in defense of his client’s cause, his conduct must never be at the expense of truth.
DOs: (1) Restrain client from improprieties and to terminate relation with him/her should the latter persist. (2) Honor the just claim of a layman against another lawyer
Penalties for violations of this rule (1) Ground for disqualification of the applicant to take the bar – If the concealment is discovered before he takes the bar exam (2) Not allowed to take the lawyer’s oath – If the concealment is discovered after the candidate has taken the bar exam (3) Revocation of the license to practice – If the concealment was discovered after he has taken his lawyer’s oath [In Re Diao (1963)]
DON'Ts: (1) Take advantage of the excusable unpreparedness or absence of counsel during the trial of a case (2) Make use, to his or to his client’s benefit, the secrets of the adverse party acquired thru design or inadvertence (3) Criticize or impute ill motive the lawyer who accepts what in his opinion is a weak case. (4) Proceed to negotiate with the client/s of another lawyer to waive all kinds of claim when the latter is still handling the civil case [Camacho v. Pagulayan et al. (2000)]
A declaration in one's application for admission to the Bar Examinations that the applicant was "single", when he was in fact married, was a gross misrepresentation of a material fact made in utter bad faith, for which the applicant should be made answerable. It indubitably exhibits lack of good moral character. [Leda v. Tabang (1992)]
Rule 8.01. – A lawyer shall not in professional dealings use language which is abusive offensive or otherwise improper.
Rule 7.02 – A lawyer shall not support the application for admission to the bar of any person known by him to be unqualified in respect to character education or other equivalent attribute
A lawyer should treat the opposing counsel and his brethren in the law profession with courtesy, dignity, and civility. They may “do as adversaries do in law: strive mightily but eat and drink as friends.” [Valencia v. Cabanting (1991)]
A lawyer should volunteer information or cooperate in any investigation concerning alleged anomaly in the bar examination so that those candidates who failed therein can be ferreted out and those lawyers responsible therefor can be disbarred. [In re Parazo, (1948)]
Though a lawyer’s language may be forceful and emphatic, it should always be dignified and respectful, befitting the dignity of the legal profession. The use of intemperate language and unkind ascriptions has no place in the dignity of the judicial forum. [Barandon v. Ferrer (2003)]
A lawyer should not readily execute an affidavit of good moral character in favor of an applicant who has not live up to the standard set by law. [Agpalo]
Examples of Improper Language (1) Behaving without due regard for the trial court and the opposing counsel and threatening the court that he would file a petition for certiorari [Bugaring v. Espanol (2001)] (2) Filing of a civil case against the opposing counsel without justification but only to get a leverage in the pending case [Reyes v Chiong (2003)]
Rule 7.03 – A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law nor shall he whether in public or private life behave in a scandalous manner to the discredit of the legal profession.
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(3) Calling an adverse counsel as “bobo” or using the word “ay que bobo” in reference to the manner of offering evidence [Castillo v. Padilla (1984)]
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Practice of Law (1) Legal advice and instructions to clients to inform them of their rights and obligations (2) Preparation for clients of documents requiring knowledge of legal principles not possessed by ordinary laymen (3) Appearance for clients before public tribunals, whether, administrative, quasi-judicial or legislative agency.
The highest reward that can come to a lawyer: Esteem of his/her brethren. 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.
General Rule: Requisites to practice law (1) Admission to the Bar (a) Satisfactory Legal Education (b) Passing the Bar Exams (c) Taking the Lawyer's Oath (d) Signing the Roll of Attorneys
DOs: (1) Accept employment to handle a matter previously handled by another lawyer, (a) Provided the other lawyer has been given notice of termination of service lest it amounts to an improper encroachment upon the professional employment of the original counsel [Laput v. Remotigue (1962)] (b) In the absence of a notice of termination from the client, provided he has obtained the conformity of the counsel whom he would substitute. (c) In the absence of such conformity, a lawyer must at least give sufficient notice to original counsel so that original counsel has the opportunity to protect his claim against the client.
(2) Be a lawyer in good and regular standing (a) Remain a member of the IBP (b) Regularly pay IBP dues, assessments and privilege tax (c) Faithfully observe rules and legal ethics (d) Be continually subject to judicial disciplinary control It is the signing in the Roll of Attorneys that finally makes one a full-fledged lawyer passing the bar is not the only qualification to become an attorney-at-law. Two essential requisites for becoming a lawyer still had to be performed, namely: his lawyer’s oath to be administered by this Court and his signature in the Roll of Attorneys. [Aguirre v. Rana (2003)]
(2) Give advice or assistance to any person who seeks relief against an unfaithful or neglectful lawyer nd
(3) Association as a colleague in a case: A 2 lawyer st should communicate with the 1 before making an appearance as co-counsel. st nd (a) Should the 1 lawyer object, 2 lawyer should st decline association but if the 1 lawyer is relieved, he may come into the case. (b) Ask client to relieve him should it be impracticable for him whose judgment has been overruled by his co-counsel to cooperate effectively
Exceptions: See section on Appearance of non-lawyers. Examples of “Unauthorized Practice of Law”: (a) Appearing as counsel even before taking lawyer’s oath [Aguirre v. Rana (2003)]. (b) Using the title “Atty.” in his name even though he is a Shari’a lawyer [Alawi v. Alauya (1997)] A corporation cannot engage in the practice law directly or indirectly. It may only hire in-house lawyers to attend to its legal business. A corporation cannot employ a lawyer to appear for others for its benefit. A corporation cannot perform the conditions required membership to the Bar. In addition, the confidential and trust relation between an attorney and his client cannot arise if the attorney is employed by a corporation.
DON'Ts: (1) Steal the other lawyer’s client (2) Induce client to retain him by promise of better service, good result or reduced fees for his services. (3) Disparage another lawyer, make comparisons or publicize his talent as a means to further his law practice. (4) In the absence of the adverse party’s counsel, interview the adverse party and question him as to the facts of the case EVEN IF adverse party was willing to do so. (5) Sanction the attempt of his client to settle a litigated matter with the adverse party without the consent nor knowledge of the latter’s counsel (cf. Canon 9). Statutory Basis
Examples: (1) Automobile club that solicits membership by advertising that it offers free legal services of its legal department to members (2) Collection agency or credit exchange that exploits lawyer's services. (3) Bank using lawyer's name as director in advertising its services in drawing wills and other legal documents.
Canon 9. A lawyer shall not assist, directly or indirectly, in the unauthorized practice of law.
Unauthorized practice of law applies to both non-lawyers and lawyers prohibited from the private practice of law.
NO ASSISTANCE IN UNAUTHORIZED PRACTICE OF LAW
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Lawyers in Government Service Prohibited to engage, during their incumbency, in the private practice of their profession.
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agreement. Rationale: Allowing non-lawyers to get attorney’s fees would confuse the public as to whom they should consult. It would leave the bar in a chaotic condition because nonlawyers are also not subject to disciplinary action.
Exceptions: (1) Unless authorized by the constitution or law and provided that such practice will not conflict or tend to conflict with their official functions. (2) Pro-bono appearances may be allowed by the Court in special instances
Rule 9.02(1) and Rule 9.02(2), does not apply to future businesses of a law firm. The deceased lawyer’s estate of his heirs cannot become partner of law firm
Private Practice - succession of acts of the same nature of habitually or customarily holding one’s self to the public as a lawyer. [OCA v. Ladaga, 350 SCRA 326]
In Rule 9.02(3), retirement benefits represent additional deferred wages or compensation for past services of employees, not a division of legal fees An agreement between a union lawyer and a layman president of the union to divide equally the attorney’s fees that may be awarded in a labor case violates the rule and is illegal and immoral [Amalgamated Laborers Assn. v. CIR (1968)]
An attorney who is otherwise disqualified to practice law, or has been disbarred or suspended from practice, can validly prosecute or defend his own litigation, he having as much right as that of a layman in that regard [Danforth v. Egan (1920)]
A donation by a lawyer to a labor union of part of his attorney’s fees taken from the proceeds of a judgment secured by him for the labor union is improper because it amounts to a rebate or commission [Halili v. CIR (1965)]
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. Rationale: The practice of law is limited only to individuals who have the necessary educational qualifications and good moral character. Moreover, an attorney-client relationship is a strictly personal one.
A contract between a lawyer and a layman granting the latter a percentage of the fees collected from clients secured by the layman and enjoining the lawyer not to deal directly with said clients is null and void, and the lawyer may be disciplined for unethical conduct [Tan Tek Beng v. David (1983)]
Examples of tasks which may only be undertaken by a lawyer: (1) The computation and determination of the period within which to appeal an adverse judgment [Eco v. Rodriguez, 107 Phil. 612 (1960)] (2) The examination of witnesses or the presentation of evidence [Robinson v. Villafuerte (1911)]
Non-lawyers may appear before the NLRC or any labor arbiter. Granted that they acted as legal representatives, they are still not entitled to receive professional fees. The statutory rule that an attorney shall be entitled to have and recover from his client a reasonable compensation or remuneration for the services they have rendered presupposes the existence of an attorney-client relationship. Such a relationship cannot, however, exist when the client’s representative is a non-lawyer. [Five J Taxi v. NLRC (1994)]
A lawyer may delegate: (1) The examination of case law (2) Finding and interviewing witnesses (3) Examining court records (4) Delivering papers and similar matters
THE COURTS CANDOR, FAIRNESS AND GOOD FAITH TOWARDS THE COURTS
A lawyer, who is under suspension from practice of law is not a member of the Bar in good standing. A lawyer whose authority to practice has been withdrawn due to a change in citizenship or allegiance to the country cannot appear before the courts. [Guballa v. Caguioa, 78 SCRA 302]
Canon 10: A lawyer owes candor, fairness and good faith to the court. A lawyer is, first and foremost, an officer of the court. Accordingly, should there be a conflict between his duty to his client and that to the court, he should resolve the conflict against the former and in favor of the latter, his primary responsibility being to uphold the cause of justice. [Cobb Perez v. Lantin, (1968)]
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: (1) Where there is a pre-existing agreement with a partner or associate that, upon the latter's death, money shall be paid over a reasonable period of time to his estate or to persons specified in the agreement (2) Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; or (3) Where a lawyer or law firm includes non-lawyer employees in a retirement plan even if the plan is based in whole or in part, on a profit sharing
Candor in all his dealings is of the very essence of honorable membership in the legal profession. [Cuaresma v. Daquis, (1975)] A lawyer’s conduct before the court should be characterized by candor and fairness. The administration of justice would gravely suffer if lawyers do not act with
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complete candor and honesty before the courts. [Serena v. Sandiganbayan (2008)]
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Rule 10.03. A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice.
A lawyer must be a disciple of truth. While a lawyer has the solemn duty to defend his client’s cause, his conduct must never be at the expense of truth [Young v Batuegas, (2003)] Rule 10.01. A lawyer shall not do any falsehood, nor consent to the doing of any in Court; nor shall he mislead, or allow the court to be misled by any artifice.
Related Statutory Basis Rule 138, Sec. 20(d) Duties of attorneys. It is the duty of an attorney: (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 of law.
A lawyer should not conceal the truth from the court, nor mislead the court in any manner no matter how demanding his duties to clients may be. His duties to his client should yield to his duty to deal candidly with the court. For no client is entitled to receive from the lawyer any service involving dishonesty to the courts (Comments of IBP Committee that drafted the Code, p. 53)
Filing multiple actions constitutes an abuse of the Court’s processes. Those who file multiple or repetitive actions subject themselves to disciplinary action for incompetence or willful violation of their duties as attorneys to act with good fidelity to the courts, and to maintain only such actions that appear to be just and consistent with truth and honor. [Olivares v. Villalon (2007)]
Rule 10.02. A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved.
A lawyer should not abuse his right of recourse to the courts for the purpose of arguing a cause that had been repeatedly rebuffed. [Garcia v. Francisco, (1993)] RESPECT FOR COURTS AND JUDICIAL OFFICERS
Statutory Basis Canon 11. A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others.
Revised Penal Code, Art. 84. Any person who shall knowingly offer in evidence a false witness or testimony in any judicial or official proceeding shall be punished as guilty of false testimony and shall suffer the respective penalties provided in this section.
Related Statutory Basis Rule 138, Sec. 20(b) Duties of attorneys. It is the duty of an attorney: (b) to observe and maintain the respect due to the courts of justice and judicial officers
A lawyer who deliberately made it appear that the quotations in his motion for reconsiderations were findings of the Supreme Court, when they were just part of the memorandum of the Court Administrator, and who misspelled the name of the complainant and made the wrong citation of authority is guilty of violation of Rule 10.02 of the Code. [COMELEC v. Noynay, (1998)]
The Supreme Court of the Philippines is, under the Constitution, the last bulwark to which the Filipino people may resort to obtain relief for their grievances or protection of their rights. If the people lose their confidence in the honesty and integrity of the members of the Court and believe that they cannot expect justice therefrom, they might be driven to take the law into their own hands, and disorder and perhaps chaos might be the result. Lawyers are duty bound to uphold the dignity and authority of the Court to promote the administration of justice. Moreover, respect to the courts guarantees the stability of other institutions. [In re Sotto (1949)]
It is the bounden duty of courts, judges and lawyers to reproduce or copy the same word-for-word and punctuation mark-for-punctuation mark… Only from this Tribunal’s decisions and rulings do all other courts, as well as lawyers and litigants, take their bearings…Ever present is the danger that if not faithfully and exactly quoted, the decisions and rulings of this Court may lose their proper and correct meaning, to the detriment of other courts, lawyers and the public who may thereby be misled. [Insular Life Employees Co. v. Insular Life Association, (1971)]
If a pleading containing derogatory, offensive and malicious statements is submitted in the same court or judge in which the proceedings are pending, it is direct contempt, equivalent as it is to a misbehavior committed in the presence of or so near a court or judge as to interrupt the administration of justice. Direct contempt is punishable summarily. [In re letter dated 21 February 2005 of Atty. Noel S. Sorreda, (2006)]
The legal profession demands that lawyers thoroughly go over pleadings, motions and other documents dictated or prepared by them, typed or transcribed by their secretaries or clerks, before filing them with the court. If a client is bound by the acts of his counsel, with more reason should counsel be bound by the acts of his secretary who merely follows his orders. [Adez Realty, Inc. v. CA, 215 SCRA 301 (1992)]
Liberally imputing sinister and devious motives and questioning the impartiality, integrity, and authority of the members of the Court result in the obstruction and
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perversion of the dispensation of justice. [Estrada v. Sandiganbayan (2000)]
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disrespect to the dignity of the court justice. Moreover, the use of impassioned language in pleadings, more often than not, creates more heat than light. [Buenaseda v. Flavier (1993)]
Observing respect due to the courts means that a lawyer should: (1) Conduct himself toward judges with courtesy everyone is entitled to expect [Paragas v Cruz (1965)] (2) With the propriety and dignity required by the courts. [Salcedo v Hernandez (1935)]
They cannot resort to scurrilous remarks that have the tendency to degrade the courts and destroy the public confidence in them. [In re Almacen (1970)] The Court does not close itself to comments and criticisms so long as they are fair and dignified. Going beyond the limits of fair comments by using insulting, disparaging and, intemperate language necessitates and warrants a rebuke from the Court. While it is expected of lawyers to advocate their client’s cause, they are not at liberty to resort to arrogance, intimidation and innuendo. [Sangalang v. IAC (1988)]
Rule 11.01. A lawyer shall appear in court properly attired. Respect begins with the lawyer’s outward physical appearance in court. Sloppy or informal attire adversely reflects on the lawyer and demeans the dignity and solemnity of court proceedings. (Agpalo) Traditional attires (1) Males: Long-sleeve Barong Tagalog or coat and tie (2) Females: Semi-formal attires. (3) Judges also appear in the same attire in addition to black robes.
Rule 11.04. A lawyer shall not attribute to a Judge motives not supported by the record or have no materiality to the case. The rule allows such criticism so long as it is supported by the record or it is material to the case. A lawyer’s right to criticize the acts of courts and judges in a proper and respectful way and through legitimate channels is well recognized. [Agpalo]
Courts have ordered a male attorney to wear a necktie and have prohibited a female attorney from wearing a hat. However, the permission of a dress with a hemline five inches above the knee was held to be acceptable as such “had become an accepted mode of dress even in places of worship” [Aguirre]
The cardinal condition of all such criticism is that it shall be bona fide, and shall not spill over the wall of decency and propriety. (Zaldivar v. Gonzales (1989)]
A lawyer who dresses improperly may be cited with contempt. [Agpalo]
Any serious accusation against a judicial officer that is utterly baseless, unsubstantiated and unjustified shall not be countenanced. [Go v. Abrogar, 485 SCRA 457]
Rule 11.02. A lawyer shall punctually appear at court hearings.
Rule 11.05. A lawyer shall submit grievances against a Judge to the proper authorities only.
Inexcusable absence from, or repeated tardiness in, attending a pre-trial or hearing may subject the lawyer to disciplinary action as his actions show disrespect to the court and are therefore considered contemptuous behavior. [Agpalo]
Related Statutory Basis 1987 Constitution, Art. VIII, Sec. 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof.
Non-appearance at hearings on the ground that the issue to be heard has become moot and academic [prisoner has been released in a petition for habeas corpus] is a lapse in judicial propriety. [De Gracia v. Warden of Makati (1976)]
The duty to respect does not preclude a lawyer from filing administrative complaints against erring judges, or from acting as counsel for clients who have legitimate grievances against them.
Rule 11.03. A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts.
The lawyer shall not file an administrative case until he has exhausted judicial remedies which result in a finding that the judge has gravely erred. [Agpalo]
A lawyer’s language should be forceful but dignified, emphatic but respectful as befitting an advocate and in keeping with the dignity of the legal profession. [Surigao Mineral Reservation Board v. Cloribel, (1970)]
Where a criminal complaint against a judge or other court employees arises from their administrative duties, the Ombudsman must defer action on said complaint and refer the same to the SC for determination whether said judges or court employees acted within the scope of their administrative duties. Otherwise, in the absence of any administrative action, the investigation being conducted by the Ombudsman encroaches into the Court’s power of administrative supervision over all courts and its personnel,
Lawyers may use strong language to drive home a point; they have a right to be in pursuing a client’s cause. [The British Co. v De Los Angeles (1975)] BUT: The use of abusive language by counsel against the opposing counsel constitutes at the same time a
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in violation of the doctrine of separation of powers. [Maceda v. Vasquez (1993)]
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Rule 12.02. A lawyer shall not file multiple actions arising from the same cause.
On Lawyers’ Freedom of Speech The constitutional right to freedom of expression of members of the Bar may be circumscribed by their ethical duties as lawyers to give due respect to the courts and to uphold the public’s faith in the legal profession and the justice system. [Re: Letter of UP Faculty (2011)]
Rationale There is an affirmative duty of a lawyer to check against useless litigations. His signature in every pleading constitutes a certificate by him that to the best of his knowledge there is a good ground to support it and that it is not to interpose for delay. The willful violation of this rule may subject him to (1) appropriate disciplinary action or (2) render him liable for the costs of litigation. (Agpalo)
ASSISTANCE IN THE SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE
Statutory Basis Canon 12: A lawyer shall exert every effort and consider it his duty to assist in the speedy and efficient administration of justice.
Excessive delay causes: (1) Hardships (2) May force parties into unfair settlement (3) Nurture a sense of injustice and breed cynicism about the administration of justice
Related Statutory Bases 1987 Constitution, Art. III, Sec 6. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.
Forum Shopping (1) Going from one court to another in the hope of securing a favorable relief in one court, which another court has denied (2) Filing repetitious suits or proceeding in different courts concerning the same subject matter after one court has decided the suit with finality. (3) Filing a similar case in a judicial court after receiving an unfavorable judgment from an administrative tribunal.
Rules of Court, Rule 138, Sec 20(g). Duties of attorneys. – It is the duty of an attorney… 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.
There is forum shopping where there are identity of parties or interests represented, rights asserted and relief sought in different tribunals. [Agpalo]
The filing of another action containing the same subject matter, in violation of the doctrine of res judicata, runs contrary to this Canon. [Siy Lim v. Montano (2006)]
Forum shopping exists where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in the other. Res judicata requires that there be a decision on the merits; by a court of competent jurisdiction; the decision is final; and the two actions involved identical parties, subject matter and causes of action. If one of these elements is absent, there is no forum shopping. [Alejandrino v CA (1998)]
Rule 12.01. A lawyer shall not appear for trial unless he has adequately prepared himself on the law and the facts of his case, the evidence he will adduce and the order of its preference. He should also be ready with the original documents for comparison with the copies. Without adequate preparation, the lawyer may not be able to effectively assist the court in the efficient administration of justice. Non-observance of this rule might result in: (a) The postponement of the pre-trial or hearing, which would thus entail delay in the early disposition of the case (b) The judge may consider the client non-suited or in default (c) The judge may consider the case deemed submitted for decision without client’s evidence, to his prejudice. [Agpalo]
Forum shopping is prohibited by Supreme Court Circular No. 28-91, which is now integrated in the Rules of Civil Procedure. The plaintiff or principal party shall certify under oath in the complaining or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith that: (1) he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; if there is such other pending action or claim, a complete statement of the present status thereof; and (2) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days there from to the court wherein his aforesaid complaint or initiatory pleading has been filed.
Half of the work of the lawyer is done in the office. It is spent in the study and research. Inadequate preparation obstructs the administration of justice. [Martin’s Legal Ethics, p. 47, 1988 ed.] A newly hired counsel who appears in a case in the midstream is presumed and obliged to acquaint himself with all the antecedent processes and proceedings that have transpired in the record prior to his takeover. [Villasis v. CA (1974)]
Failure to comply with the foregoing requirements shall not be curable by me
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re amendment of the complaint or other initiatory pleading but shall cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion after hearing. [Rules of Court, Rule 7, Sec. 5]
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Proper Behavior [Rule 12.05-12.07] Rule 12.05. A lawyer shall refrain from talking to his witness during a break or recess in the trial, while the witness is still under examination.
The submission of a false certification or non-compliance with any of the undertakings in a certification of no forum shopping (1) Shall constitute indirect contempt of court (2) Without prejudice to the corresponding administrative and criminal actions
Rationale The purpose is to prevent the suspicion that he is coaching the witness what to say during the resumption of the examination; to uphold and maintain fair play with the other party and to prevent the examining lawyer from being tempted to coach his own witness to suit his purpose. [Callanta]
If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be: (1) Ground for summary dismissal with prejudice; (2) And shall constitute direct contempt; (3) Cause for administrative sanctions
Rule 12.06. A lawyer shall not knowingly assist a witness to misrepresent himself or to impersonate another.
The rule against forum shopping and the requirement that a certification to that effect be complied with in the filing of complaints, petitions or other initiatory pleadings in all courts and agencies applies to quasi-judicial bodies such as the NLRC or Labor Arbiter. [Agpalo]
Rule 12.03. A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so.
Subornation of Perjury Subornation of perjury is committed by a person who knowingly and willfully procures another to swear falsely and the witness suborned does testify under circumstances rendering him guilty of perjury. [US v. Ballena (1911)]
Revised Penal Code, Art. 184. The lawyer who presented a witness knowing him to be a false witness is criminally liable for “Offering False Testimony In Evidence”. The lawyer is both criminally and administratively liable.
The court censures the practice of counsels who secures repeated extensions of time to file their pleadings and thereafter simply let the period lapse without submitting the pleading on even an explanation or manifestation of their failure to do so. There exists a breach of duty not only to the court but also to the client. [Achacoso v. Court of Appeals, (1973)]
Rule 12.07. A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him. Related Statutory Basis Rules of Court, Rule 132, Sec. 3. Rights and obligations of a witness. A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness: (a) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; (b) Not to be detained longer than the interests of justice require; (c) Not to be examined except only as to matters pertinent to the issue; (d) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or (e) Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous conviction for an offense.
An attorney is bound to protect his client's interest to the best of his ability and with utmost diligence. A failure to file brief for his client certainly constitutes inexcusable negligence on his part. [Ford v. Daitol (1995)] Rule 12.04. A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse Court processes. It is one thing to exert to the utmost one’s ability to protect the interest of one’s client. It is quite another thing to delay if not defeat the recovery of what is justly due and demandable due to the misleading acts of a lawyer. [Manila Pest Control v. WCC (1968)] Once a judgment becomes final and executory, the prevailing party should not be denied the fruits of his victory by some subterfuge devised by the losing part. Unjustified delay in the enforcement of a judgment sets at naught the role of courts in disposing justiciable controversies with finality. [Aguilar v. Manila Banking Corporation (2006)]
PD1829-Penalizing Obstruction of Justice (h) threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the
It is part of the lawyer’s duty to inform the court, within thirty days of the death of his client in a pending case.
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investigation of or in official proceedings in, criminal cases; (i) giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or to the court.
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Code of Professional Ethics, Canon 3. A lawyer should avoid marked attention and unusual hospitality to a judge uncalled for by the personal relations of the parties because they subject him and the judge to misconceptions of motives. In order not to subject both the judge and the lawyer to suspicion, the common practice of some lawyers of making judges and prosecutors godfathers of their children to enhance their influence and their law practice should be avoided by judges and lawyers alike [Report of IBP Committee, p. 70.]
Rule 12.08 - A lawyer shall avoid testifying in behalf of his client, except: (a) on formal matters, such as the mailing, authentication or custody of an instrument, and the like; or (b) on substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel.
It is improper for a litigant or counsel to see a judge in chambers and talk to him about a matter related to the case pending in the court of said judge. [Austria v. Masaquel (1967)] Rule 13.02. A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party.
Rule 12.08 - A lawyer shall avoid testifying in behalf of his client except: (a) on formal matters such as the mailing authentication or custody of an instrument and the like; or (b) on substantial matters in cases where his testimony is essential to the ends of justice in which event he must during his testimony entrust the trial of the case to another counsel.
Rationale Newspaper publications regarding a pending or anticipated litigation may interfere with a fair trial, prejudice the administration of justice, or subject a respondent or a accused to a trial by publicity and create a public inference of guilt against him [Agpalo]
Rationale The underlying reason for the impropriety of a lawyer acting in such dual capacity lies in the difference between the function of a witness and that of an advocate. (1) function of a witness - to tell the facts as he recalls then in answer to questions (2) function of an advocate - is that of a partisan
When public statements are contemptuous: The character of the act done and its direct tendency to prevent and obstruct the discharge of official duty. Statements after litigation A lawyer enjoys wider latitude to comment or criticize the actions of the judge than pending litigation. [In re: Lozano, (1930)]
It is difficult to distinguish between the zeal of an advocate and the fairness and impartiality of a disinterested witness. The lawyer will find it hard to disassociate his relation to his client as an attorney and his relation to the party as a witness. [Agpalo]
RE: Request Radio-TV Coverage Trial should not to be televised. The right of accused, who is in danger of losing his life and liberty, to a fair trial, outweighs right of public to information. Media exposure may unduly interfere with the disposition of the trial.
When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client. [PNB v. Uy Teng Piao (1932)]
Rule 13.03. A lawyer shall not brook or invite interference by another branch or agency of the government in the normal course of judicial proceedings. Basis The principle of separation of powers (Aguirre)
RELIANCE ON MERITS OF HIS CAUSE, NOT FROM IMPROPER INFLUENCE UPON THE COURTS
A lawyer should know that a "complaint" against the justices of the Court's Second Division cannot be filed with the Office of the President [Maglasang v. People (1990)]
Canon 13. A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence or gives the appearance of influencing the court.
Rule 13.01. A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with Judges.
Rule 11.05. A lawyer shall submit grievances against a Judge to the proper authorities only.
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Rules of Court, Rule 138, Sec. 20 (h). Duties of attorneys. It is the duty of an attorney…never to reject for any consideration personal to himself the cause of the defenseless or oppressed;
NATURE OF ATTORNEY-CLIENT RELATIONSHIP
(1) Strictly Personal (2) Highly confidential (3) Fiduciary
Rules of Court, Rule 138, Sec. 31. Attorneys for destitute litigants. A court may assign an attorney to render professional aid free of charge to any party in a case if upon investigation it appears that the party is destitute and unable to employ an attorney and that the services of counsel are necessary to secure the ends of justice and to protect the rights of the party. It shall be the duty of the attorney so assigned to render the required service unless he is excused therefrom by the court for sufficient cause shown.
FORMS OF EMPLOYMENT OF THE COUNSEL
(1) Oral (2) Written (3) Implied A written contract between the counsel and the client is the best evidence to show the presence of an attorney-client relationship. However, it is not essential for the employment of an attorney. AVAILABILITY OF SERVICE WITHOUT DISCRIMINATION
Services as Counsel de Officio It is clearly unworthy of membership in the Bar which requires dedication and zeal in the defense of his client's rights, a duty even more exacting when one is counsel de officio. On such an occasion, the honor and respect to which the legal profession is entitled demand the strictest accountability of one called upon to defend an impoverished litigant. He who falls in his obligation then has manifested a diminished capacity to be enrolled in its ranks. [People v. Ingco (1971)]
Services regardless of Person’s Status Canon 14. A lawyer shall not refuse his services to the needy. Rule 14.01. A lawyer shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life, or because of his own opinion regarding the guilt of said person. Rationale: It is a declared policy of the State to value the dignity of every human person and guarantee the rights of every individual, particularly those who cannot afford the services of counsel.(RA 9999, Free Legal Assistance Act of 2010)
Counsel de Officio A counsel, appointed or assigned by the court, from among such members of the bar in good standing who by reason of their experience and ability, may adequately defend the accused.
Incentives for Giving Free Legal Services A lawyer or professional partnerships rendering actual free legal services shall be entitled to an allowable deduction from the gross income, the amount that could have been collected for the actual free legal services rendered or up to 10% of the gross income derived from the actual performance of legal profession, whichever is lower. The free legal aid contemplated here is different from the 60hr mandatory legal aid services under BM 2012.(RA 9999, Free Legal Assistance Act of 2010)
A counsel de officio is expected to render effective service and to exert his best efforts on behalf of an indigent accused. Who may be appointed (1) a member of the bar in good standing (2) in localities without lawyers, any person of good repute for probity and ability P.D. 543 (1974) authorized the designation of municipal judges and lawyers in any branch of the government service to act as counsel de officio for the accused who are indigent in places where there are no available practicing lawyers.
Related Rules Rules of Court, Rule 138, Sec. 20 (i). Duties of attorneys. In the defense of a person accused of a 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.
Appointed by court depending on: (1) the gravity of the offense (2) the difficulty of the questions that may arise (3) the experience and ability of the appointee.
Rule 14.02. A lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de officio or as amici curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid.
Amicus curiae A “friend of the court;” a “bystander” usually a counselor who interposes or volunteers information upon some matter of law in regard to which the judge is doubtful or mistaken. [Agpalo]
Canon 2, Rule 2.01. A lawyer shall not reject except for valid reasons the cause of the defenseless or the oppressed.
Experienced and impartial attorneys invited by the Court to help in the disposition of issues submitted to it.
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In a criminal action, the court may appoint a counsel de officio in any of the following instances: (1) Before arraignment, the court shall inform the accused of his right to counsel and ask him if he desires to have one. The court must assign a counsel de officio to defend him, unless the accused is allowed to defend himself in person, or has employed counsel of his choice. (2) It is the duty of the clerk of the trial court, upon filing of a notice of appeal, to ascertain from the appellant, if confined in prison, whether he desires the RTC, CA or the SC to appoint a counsel de officio. (3) If it appears from the record that: (a) the accused is confined in prison, (b) is without counsel de parte on appeal, or (c) has signed the notice of appeal himself, the clerk of CA shall designate a counsel de officio. (Agpalo)
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RA 6035 A stenographer who has attended a hearing before an investigating fiscal or trial judge or hearing commissioner of any quasi-judicial body or administrative tribunal and has officially taken notes of the proceeding thereof shall, upon written request of an indigent or low income litigant, his counsel or duly authorized representative in the case concerned, give within a reasonable period to be determined by the fiscal, judge, commissioner or tribunal hearing the case, a free certified transcript of notes take by him on the case. For he did betray by his moves his lack of enthusiasm for the task entrusted to him, to put matters mildly. He did point though to his responsibility as an election registrar… [but] there is not likely at present, and in the immediate future, an exorbitant demand on his time. It may likewise be assumed, considering what has been set forth above, that petitioner would exert himself sufficiently to perform his task as defense counsel with competence, if not with zeal, if only to erase doubts as to his fitness to remain a member of the profession in good standing. [Ledesma v. Climaco (1974)]
An appellant who is not confined in prison may, upon request, be assigned a counsel de officio within 10 days from receipt of the notice to file brief and he establishes his right thereto. [Sec. 2, Rule 124, Rules of Court] Rule 14.03 - A lawyer may refuse to accept representation of an indigent client if: (a) he is not in a position to carry out the work effectively or competently (b) he labors under a conflict of interests between him and the prospective client or between a present client and the prospective client.
Valid Grounds for Refusal A lawyer shall not decline an appointment as counsel de officio or as amicus curiae, or a request from the IBP or any of its chapters for rendition of free legal aid except for serious and sufficient cause. The reason is that one of the burdens of the privilege to practice law which an attorney voluntarily assumed when he took his oath as a lawyer is to render, when so required by the court, free legal services to indigent litigant.
Who is an indigent? (a) a person who has no visible means of income or whose income is insufficient for the subsistence of his family, to be determined by the fiscal or judge, taking into account the members of his family dependent upon him for subsistence. (b) an "indigent or low income litigant" shall include anyone who has no visible means of support or whose income does not exceed P300 per month or whose income even in excess of P300 per month is insufficient for the subsistence of his family [RA 6035]
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. If a lawyer volunteers his services to a client, and therefore not entitled to attorney’s fees, nevertheless, he is bound to attend to a client’s case with all due diligence and zeal. By volunteering his services, he has established a client-lawyer relationship. [Blanza v. Arcangel (1967)]
RA 6033 All courts shall give preference to the hearing and/or disposition of criminal cases where an indigent is involved either as the offended party or accused.
If the counsel does refuse (see above justifications), Rule 2.02 governs, which says: 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.
RA 6034 Any indigent litigant may, upon motion, ask the Court for adequate travel allowance to enable him and his indigent witnesses to attendant the hearing of a criminal case commenced by his complaint or filed against him. The allowance shall cover actual transportation expenses by the cheapest means from his place of residence to the court and back. When the hearing of the case requires the presence of the indigent litigant and/or his indigent witnesses in court the whole day or for two or more consecutive days, allowances may, in the discretion of the Court, also cover reasonable expenses for meal and lodging.
CANDOR, FAIRNESS AND LOYALTY TO CLIENTS
Statutory Basis Canon 15. Observe Candor, Fairness and Loyalty in all his Dealings and Transactions with his Clients.
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Confidentiality Rule Privileged Communications
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that a communication between a lawyer and his client be privileged, it must be for a lawful purpose or in the furtherance of a lawful end. [People v. Sandiganbayan (1996)]
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.
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.
Rule 15.02. A lawyer shall be bound by the rule on privileged communication in respect of matters disclosed to him by a prospective client.
There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties. The test is "whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim, but it is his duty to oppose it for the other client. In brief, if he argues for one client, this argument will be opposed by him when he argues for the other client." [Hornilla v. Salunat (2003)]
Related Statutory Basis Revised Penal Code, Art. 209. Betrayal of trust by an attorney or solicitor. - Revelation of Secrets. In addition to the proper administrative action x x x shall be imposed upon an 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.
General Rule : A lawyer may not represent two opposing parties at any point in time. A lawyer need not be the counsel-of-record of either party. He does not have to publicly hold himself as the counsel of the adverse party nor make efforts to advance the adverse party’s conflicting interests of record. It is enough that the counsel had a hand in the preparation of the pleading of one party.
Privileged Communication 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 professional employment; nor can an attorney’s secretary, 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.
Exception: When the parties agree, and for amicable settlement [Agpalo] Conflict of interest There is duty to contend for that which duty to another client requires him to oppose.
Requisites of Privileged Communication [Rule 130, Section 24 (b) of the RRC]: (1) There is an attorney-client relationship or a kind of consultancy requirement with a prospective client; (2) The communication was made by the client to the lawyer in the course of the lawyer’s professional employment; (3) The communication must be intended to be confidential.
Tests to determine conflict of interest (1) When there are conflicting duties (2) When the acceptance of the new relations invites or actually lead to unfaithfulness or double-dealing to another client (3) When the attorney will be called upon to use against his first client any knowledge acquired in the previous employment
Exceptions to privilege [Aguirre]: (1) When a lawyer is accused by the client and he needs to reveal information to defend himself (2) When the client discloses the intention to commit a crime or unlawful act. (Future crime)
Note: The test to determine whether there is a conflict of interest in the representation is probability, not certainty of conflict
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.
Effects of representing adverse interests (1) Disqualification as counsel on new case (2) If prejudicial to interests of latter client, a judgment against may be set aside (3) Administrative and criminal (for betrayal of trust) liability (4) Fees may not be paid General Rule : A lawyer must name the identity of all his clients, when so demanded. (1) The Court has a right to know that the client whose privileged information is sought to be protected is flesh and blood. (2) The mantle of privileged communication begins to exist only after the attorney-client relationship has
For attorney-client privilege to apply, however, the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future (if past, privilege applies; if future, does not apply). In order
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been established. The privilege does not attach until there is a client. (3) The privilege pertains to the subject matter of the relationship. (4) Due process considerations require that the opposing party should know his adversary. (Metaphor: He cannot be obliged to grope in the dark against unknown forces.)
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Rule 15.06. A lawyer shall not state or imply that he is able to influence any public official tribunal or legislative body. This rule protects against influence peddling. Some prospective clients secure the services of a particular lawyer or law firm precisely because he can exert a lot of influence on a judge and some lawyers exact big fees for such influence [Agpalo]
Exception: He may refuse to divulge the name or identity of his client (1) Where a strong probability exists that revealing the client’s name would implicate the client in the very activity for which he sought the lawyer’s advice. (2) Where disclosure would open the client to civil liability. (3) Where the government’s lawyers have no case against an attorney’s client unless by revealing the client’s name, i.e., the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime.
Compliance with Laws Rule 15.07. A lawyer shall impress upon his client compliance with the laws and the principles of fairness. Related Statutory Basis Civil Code, Art. 19. Every person must in the exercise of his rights and in the performance of his duties act with justice give everyone his due and observe honesty and good faith. Concurrent Practice of another Profession
Information relating to the identity of the client may fall within the ambit of the privilege when the client’s name itself has an independent significance, such that disclosure would then reveal client confidences. [Regala v. Sandiganbayan (1996)]
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. General Rule: Exercise of dual profession is not prohibited but a lawyer must make it clear when he is acting as a lawyer and when he is otherwise, especially in occupations related to the practice of law. Reason: certain ethical considerations may be operative in one profession and not in the other. [Agpalo]
Rule 15.04. A lawyer may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in settling disputes. An attorney’s knowledge of the law and his reputation for fidelity may make it easy for the disputants to settle their differences amicably. However, he shall not act as counsel for any of them. [Agpalo]
A lawyer is not barred from dealing with his client but the business transaction must be characterized with utmost honesty and good faith. Business transactions between an attorney and his client are disfavored and discouraged by policy of law because by virtue of a lawyer’s office, he is an easy position to take advantage of the credulity and ignorance of his client. Thus, there is no presumption of innocence or improbability of wrongdoing in favor of lawyers. [Nakpil v. Valdez, 286 SCRA 758 (1998)]
Generally an attorney is prohibited from representing parties with contending positions. However at a certain stage of the controversy, before it reaches the court, a lawyer may represent conflicting interests with the consent of the parties. [Dee v. CA (1989)] Candid and Honest Advice to Clients
CLIENT’S MONEY AND PROPERTIES
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 understanding the prospects of the case.
Canon 16: A lawyer shall hold in trust all moneys and properties of his client that may come into his possession. Related Statutory Basis Civil Code, Art. 1491. “The following persons cannot acquire or purchase even at public or judicial auction either in person or through the mediation of another: (5) lawyers with respect to the property and rights which may be the object of any litigation in which they take part by virtue of their profession.”
Related Statutory Basis Code of Professional Ethics, Canon 8. Before answering his client’s question a lawyer should endeavor to obtain full knowledge of his client’s cause. It is only after he shall have studied the case that he should advise his client on the matter.
(a) (b) (c) (d)
A lawyer is bound to give candid and honest opinion on the merit or lack of merit of client’s case, neither overstating nor understating the prospect of the case. He should also give an honest opinion as to the probable results of the case, with the end in view of promoting respect for the law and the legal processes. [Agpalo]
Attorney-client relationship Property or interest is in litigation Attorney takes part as counsel in the case Purchase, acquisition by attorney, by himself or through another, during pendency of litigation
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Prohibition includes mortgage of property in litigation to the lawyer. In this case, acquisition is merely postponed until foreclosure but effect is the same. It also includes assignment of property [Ordonio v. Eduarte (1992)]
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Delivery of Funds Rule 16.03 - A lawyer shall deliver the funds and property to his client when due or upon demand. However, (a) he shall have a lien over the funds and (b) may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, (c) 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.
The purchase by a lawyer of the property in litigation from his client is categorically prohibited by Article 1491, paragraph (5) of the Philippine Civil Code, and that consequently, plaintiff's purchase of the property in litigation from his client (assuming that his client could sell the same since as already shown above, his client's claim to the property was defeated and rejected) was void and could produce no legal effect, by virtue of Article 1409, paragraph (7) of our Civil Code which provides that contracts “expressly prohibited or declared void by law' are "inexistent and that “These contracts cannot be ratified. Neither can the right to set up the defense of illegality be waived.” x x x Article 1491 of our Civil Code (like Article 1459 of the Spanish Civil Code) prohibits in its six paragraphs certain persons, by reason of the relation of trust or their peculiar control over the property… [Rubias v. Batiller (1973)]
Related statutory basis Rules of Court, 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. Money collected by a lawyer in pursuance of a judgment in favor of his clients is held in trust and must be immediately turned over to them. [Businos v. Ricafort (1997)]
Article 1491 is not applicable: (1) When attorney is not counsel in case involving the same property at the time of acquisition. (2) When purchaser is a corporation, even if the attorney was an officer [Tuazon v. Tuazon, 88 Phil. 42] (3) When sale took place after termination of litigation, except if there was fraud or abuse of confidential information or where lawyer exercised undue influence. (4) Where property in question is stipulated as part of attorney’s fees, provided that, the same is contingent upon the favorable outcome of litigation and, provided further, that the fee must be reasonable.
The failure of an attorney to return the client’s money upon demand gives rise to the presumption that he has misappropriated it for his own use to the prejudice of and in violation of the trust reposed in him by the client. Retaining lien. — A right merely to retain 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. The requisites for validity of a retaining lien. – (1) Attorney-client relationship (2) Lawful possession by lawyer of the client’s funds, documents and papers in his professional capacity (3) Unsatisfied claim for attorney’s fees or disbursements
Fiduciary Relationship Rule 16.01. A lawyer shall account for all money or property collected or received for or from the client. A lawyer, under his oath, pledges himself not to delay any man for money or malice and is bound to conduct himself with all good fidelity to his clients. He is obligated to report promptly the money of his clients that has come into his possession (otherwise a violation of Sec. 25, Rule 138 of ROC). He should not commingle it without his client’s consent. He should maintain a reputation for honesty and fidelity to private trust. The fact that a lawyer has a lien for fees on money in his hands would not relieve him from the duty of promptly accounting for the funds received. [Daroy v. Legaspi (1975)]
Charging lien. — An equitable right to have the fees and lawful disbursements due a lawyer for his services, secured to him out of a money judgment. The requisites for validity of a charging lien. — (1) Attorney-client relationship (2) Attorney has rendered services (3) Money judgment favorable to the client has been secured in the action (4) Attorney has a claim for attorney’s fees or advances statement of his claim has been duly recorded in the case with notice thereof served upon the client and adverse party
Money collected by a lawyer in pursuance of a judgment in favor of his clients is held in trust and must be immediately turned over to them. [Busiños v. Ricafort (1997)]
Every lawyer has the responsibility to protect and advance the interests of his client such that he must promptly account for whatever money or property his client may have entrusted to him. As a mere trustee of said money or property, he must hold them separate from that of his own and make sure that they are used for their intended purpose. If not used, he must return the money or property immediately to his client upon demand, otherwise the lawyer shall be presumed to have misappropriated the
Co-Mingling of Funds 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.
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same in violation of the trust reposed on him. A lawyer’s conversion of funds entrusted to him is a gross violation of professional ethics. [Arellano University, Inc. v. Mijares III (2009)]
handle a case, he should undertake the task with dedication and care. If he should do any less then he is not true to his oath as a lawyer. [Legarda v. CA, (1991)]
Borrowing or Lending
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.
Rule 18.03. A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. If by reason of the lawyer’s negligence, actual loss has been caused to his client, the latter has a cause of action against him for damages. However, for the lawyer to be held liable, his failure to exercise reasonable care, skill and diligence must be proximate cause of the loss. [Callanta]
The relation of attorney and client is highly fiduciary in nature and is of a very delicate, exacting and confidential character. A lawyer is duty-bound to observe candor, fairness and loyalty in all his dealings and transactions with his clients. The profession, therefore, demands of an attorney an absolute abdication of every personal advantage conflicting in any way, directly or indirectly, with the interest of his client. [Barnachea v. Quicho (2003)]
Every case a lawyer accepts deserves his full attention, diligence, skill and competence, regardless of its importance or whether he accepts for a fee or free. By agreeing to be someone’s counsel, he represents that he will exercise ordinary diligence or that reasonable degree of care and skill demanded of the business he undertakes to do, to protect the client’s interests and take all steps or do all acts necessary thereof [Uy v Tansinin, AC No. 8252 (2009)].
FIDELITY TO CLIENT’S CAUSE
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.
A client is entitled to the benefit of any and every remedy and defense authorized by law, and is expected to rely on the lawyer to assert every such remedy or defense [Garcia V. Bala (2005)].
When a lawyer takes a client’s cause, he thereby covenants that he will exert all effort for its protection until its final conclusion. The failure to exercise due diligence and the abandonment of a client’s cause make such a lawyer unworthy of the trust which the client has reposed on him. [Cantilller v. Potenciano (1989)]
Lawyers’ Negligence General Rule: Client is bound by attorney’s conduct, negligence and mistake in handling case or in management of litigation and in procedural technique, and he cannot be heard to complain that result might have been different had his lawyer proceeded differently.
No lawyer is obliged to act either as adviser or advocate for every person who may wish to become his client. He has the right to decline employment, except as prescribed in Canon 14 of the Code of Professional Responsibility. But once he agrees to take up the cause of the client…No fear or judicial disfavor or public unpopularity should restrain him from the full discharge of his duty. [Santiago v. Fojas (1995)]
Exceptions: (1) Where it results in outright deprivation of client’s liberty or property or where interest of justice so requires (2) Where error by counsel is purely technical which does not affect substantially client’s cause (3) Ignorance, incompetence or inexperience of lawyer is so great and error so serious that client, who has good cause is prejudiced and denied a day in court (4) Gross negligence of lawyer (5) Lack of acquaintance with technical part of procedure.
COMPETENCE AND DILIGENCE
Statutory Basis Canon 18: Serve client with competence and diligence. Adequate Protection
Some examples of negligence of attorneys. — (1) Failure of counsel to ask for additional time to answer a complaint resulting in a default judgment against his client [Mapua v. Mendoza (1993)]. (2) Failure to bring suit immediately. When the belated suit was filed, the defendant had already become insolvent and recovery could no longer be had. The lawyer was declared liable to the client [Filinvest Land v. (1990)] (3) Failure to ascertain date of receipt from post office of notice of decision resulting in the non-perfection of the appellant’s appeal [Joven-De Jesus v. PNB (1964)]. (4) Failure to file briefs within the reglementary period [People v. Cawili (1970)]. Failure to attend to trial
Rule 18.02. A lawyer shall not handle any legal matter without adequate preparation. Lawyer should safeguard his client’s rights and interests by thorough study and preparation; mastering applicable law and facts involved in a case, regardless of the nature of the assignment; and keeping constantly abreast of the latest jurisprudence and developments in all branches of the law. [Agpalo] A lawyer should give adequate attention, care and time to his cases. This is the reason why a practicing lawyer should accept only so many cases he can handle. Once he agrees to
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without filing a motion for postponement or without requesting either of his two partners in the law office to take his place and appear for the defendants [Gaerlan v. Bernal (Jan. 28, 1952)]. Failure to appear at pre-trial [Agravante v. Patriarca (1990)]. (5) Failure of counsel to notify clients of the scheduled trial which prevented the latter to look to another lawyer to represent them while counsel was in the hospital [Ventura v. Santos (1993)]. (6) Failure to appear simply because the client did not go to counsel’s office on the date of the trial as was agreed upon [Alcoriza v. Lumakang, Adm. Case No. 249, (1978)]. (7) Failure to pay the appellate docket fee after receiving the amount for the purpose [Capulong v. Alino (1968)].
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However, whatever good intentions he may have, a lawyer cannot ask another lawyer to collaborate with him in a particular case without the consent of the client. The fiduciary nature of attorney-client relationship prohibits this. [Aguirre] Some cases involve specialized fields of law and require special training. A lawyer should not accept an undertaking in specific area of law which he knows or should know he is not qualified to enter. [Agpalo] Duty to Apprise Client Rule 18.04. A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable period of time to the client’s request for information.
Instances where the client is not bound by counsel’s negligence (1) In the case of an irresponsible lawyer who totally forgot about the case and failed to inform his client of the decision, the Supreme Court held that the client should not be bound by the negligence of the counsel. [Republic v. Arro (1987)] (2) A party is not bound by the actions of his counsel in case the gross negligence of the counsel resulted in the client’s deprivation of his property without due process [Legarda v. CA (1991)]. (3) “Where there is something fishy and suspicious about the actuations of the former counsel of petitioners in the case at bar, in the case he did not give any significance at all to the processes of the court, which has proven prejudicial to the rights of said clients, under a lame and flimsy explanation that the courts processes just escaped his attention, it is held that the said lawyer deprived his clients of their day in court [PHHC v. Tiongco (1964)]. (4) Application of the rule, “results in the outright deprivation of one’s property through a technicality.” [Escudero v. Dulay (1988)] (5) In the case of an irresponsible lawyer who totally forgot about the case and failed to inform his client of the decision, the Supreme Court held that the client should not be bound by the negligence of the counsel. [Republic vs. Arro, et al.,(1987)]
It was unnecessary to have complainants wait, and hope, for six long years on their pension claims. Upon their refusal to co-operate, respondent should have forthwith terminated their professional relationship instead of keeping them hanging indefinitely. [Blanza v. Arcangel (1967)] REPRESENTATION WITH ZEAL WITHIN LEGAL BOUNDS
Canon 19: A lawyer shall represent his client with zeal within the bounds of law. In the discharge of his duty of entire devotion to the client’s cause, a lawyer should present every remedy or defense authorized by law in support of his client’s cause regardless of his personal views. [Legarda v. CA (1991)] Use of Fair and Honest Means Rule 19.01. A lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage Rules of Court, Rule 138, Sec. 20(d). Duties of attorneys. It is the duty of an attorney: 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.
Collaborating Counsel Rule 18.01. A lawyer shall not undertake a legal service which he knows or should know that he is not qualified to render. However he may render such service if, with the consent of his client, he can obtain as collaborating counsel a lawyer who is competent on the matter.
Under this Rule, a lawyer should not file or threaten to file any unfounded or baseless criminal case or cases against the adversaries of his client designed to secure a leverage to compel adversaries to yield or withdraw their own cases against the lawyer’s client. [Pena v Aparicio (2007)]
When a lawyer accepts a case, whether for a fee or not, his acceptance is an implied representation: (1) That he possess the requisite degree of academic learning, skill and ability in the practice of his profession; (2) That he will exert his best judgment in the prosecution or defense of the litigation entrusted to him; (3) That he will exercise reasonable and ordinary care and diligence in the pursuit or defense of the case; and (4) That he will take steps as will adequately safeguard his client’s interests. [Islas v. Platon, 47 Phil. 162]
Client’s Fraud Rule 19.02. A lawyer who has received information that his client has, in the course of the representation, perpetuated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he shall terminate the relationship with such client in accordance with the Rules of Court.
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Rules of Court, Rule 138, Sec. 24. Compensation of attorneys. An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services with a view to the importance of the subject matter of the controversy the extent of the services rendered and the professional standing of the attorney. 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 therefore unless found by the court to be unconscionable or unreasonable.
Related Rule Canon 21. A lawyer should not allow his client to perpetuate fraud. However, the lawyer shall not volunteer the information about the client’s commission of the fraud to anyone for that will run counter to his duty to maintain at all times the client’s confidences and secrets. This rule merely requires the lawyer to terminate his relationship with the client in the event the latter fails or refuses to rectify the fraud. [Agpalo] Procedure in Handling the Case Rule 19.03. A lawyer shall not allow his client to dictate the procedure in handling the case.
Right to compensation In the absence of an express contract [for attorney’s fee], payment of attorney’s fees may be justified by virtue of the innominate contract of facio ut des (I do and you give) which is based on the principle that “no one shall enrich himself at the expense of another” [Corpuz v. CA (1980)]
Rules of Court, Rule 138, Sec. 23. Authority of attorneys to bind clients. Attorneys have authority to bind their clients in any case by any agreement in relation thereto made in writing and in taking appeals and in all matters of ordinary judicial procedure. But they cannot, without special authority, compromise their client's litigation or receive anything in discharge of a client's claim but the full amount in cash.
The Counsel if worthy of his hire, is entitled to be fully recompensed for his services. With his capital consisting solely of his brains and his skill, acquired at tremendous cost not only in money but in the expenditure of time and energy, he is entitled to the protection of any judicial tribunal against any attempt on the part of a client to escape payment of his fees. [Albano v. Coloma (1967)]
As to substantial matter Employment itself confers upon the attorney no implied or apparent authority to bind the client on substantial matters which the attorney may not impair, novate, compromise, settle, surrender or destroy without the client’s consent or authority: (1) Cause of action, (2) Claim or demand sued upon (3) Subject matter of the litigation
Rule 20.01 - A lawyer shall be guided by the following factors in determining his fees: (1) Time spent and the extent of the services rendered or required (2) Importance of the subject matter (3) Novelty and difficulty of the questions involved; (4) Skill demanded; (5) Probability of losing other employment as a result of acceptance of the professed case; (6) Professional standing of the lawyer; (7) Amount involved in the controversy and the benefits resulting to the client from the service (8) Customary charges for similar services and the schedule of fees of the IBP Charter to which he belongs; and (9) Contingency or certainty of compensation; (10) Character of the employment, whether occasional or established. (11) Capacity of the client to pay.
As to matters of law In matters of law, the client should yield to the lawyer (not the lawyer to the client) for the lawyer is better trained and skilled in law. Also, proceedings to enforce remedies are within the exclusive control of the attorney. A lawyer should seek instruction from his client on any substantial matter concerning the litigation which requires decision on the part of the client (i.e. whether to compromise the case or to appeal an unfavorable judgment). In procedural matters, the client must yield to the lawyer. [Agpalo] ATTORNEY’S FEES
Contingency Fee Arrangements Quantum Meruit Means “as much as a lawyer deserves”. Its essential requisite is acceptance of the benefits by one sought to be charged for services rendered under circumstances as reasonably to notify him that lawyer expects compensation.
Acceptance Fees Canon 20: A lawyer shall charge only fair and reasonable fees.
Quantum Meruit is authorized in the following instances.— (1) There is no express contract for attorney’s fees agreed upon between the lawyer and the client;
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(2) When although there is a formal contract of attorney’s fees, the stipulated fees are found unconscionable or unreasonable by the court; (3) When the contract for attorney’s fees is void due to purely formal matters or 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 of attorney’s fees (6) When there is a contract but no stipulation as to attorney’s fees
Passive lien. It cannot be Active lien. It can be enforced actively enforced. It is a by execution. It is a special general lien. lien. Basis Lawful possession of funds, Securing of a favorable papers, documents, property money judgment for client belonging to client Coverage Covers only funds, papers, documents, and property in the lawful possession of the attorney by reason of his professional employment
Covers all judgments for the payment of money and executions issued in pursuance of such judgment
Effectivity As soon as the lawyer gets As soon as the claim for possession of the funds, attorney’s fees had been papers, documents, property entered into the records of the case Notice Client need not be notified to Client and adverse party make it effective need to notified to make it effective
Champertous Contract One where the lawyer stipulates with his client the prosecution of the case that he will bear all the expenses for the recovery of things or property being claimed, and the latter pays only upon successful litigation. Void for being against public policy.
Applicability May be exercised before Generally, it is exercisable judgment or execution, or only when the attorney had regardless thereof already secured a favorable judgment for his client
Contingent Contract It is an agreement in which the lawyer’s fee, usually a fixed percentage of what may be recovered in the action, is made to depend upon the success in the effort to enforce or defend the client’s right. It is a valid agreement. It is different from a champertous contract in that the lawyer does not undertake to shoulder the expenses of the litigation.
Fees and Controversies with Clients 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 allowances or other compensation whatsoever related to his professional employment from any one other than the client. Related Statutory Basis
Rules of Court, Rule 138, Sec. 20(e). Duties of attorneys. It is the duty of an attorney… to accept no compensation in connection with his client's business except from him or with his knowledge and approval.
Contingent fee is payable in Payable in kind only cash Lawyers do not undertake to Lawyers undertake to pay all pay all expenses of litigation expenses of litigation Not prohibited
Guides in Determining Attorney’s Fees in Quantum Meruit Basis. – (1) Time spent and Extent of the Services Rendered – A lawyer is justified in fixing higher fees when the case is so complicated and requires more time and efforts to finish it. (2) Importance of Subject Matter – The more important the subject matter or the bigger value of the interest or property in litigation, the higher is the attorney’s fee. (3) Novelty and Difficulty of Questions Involved – When the questions in a case are novel and difficult, greater efforts, deeper study and research, are bound to burn the lawyer’s time and stamina considering that there are no local precedents to rely upon. (4) Skill demanded of the Lawyer – The totality of the lawyer’s experience provides him the skill and competence admired in lawyers.
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Rationale This ensures protection of lawyers in collection of fees. It is also designed to secure the lawyer’s wholehearted fidelity to the client’s cause and to prevent that situation in which the receipt by him of a rebate or commission from another in connection with the client’s cause may interfere with the full discharge of his duty to the client. The amount received by lawyer from opposite party or third persons in the service of his client belongs to the client except when the latter has full knowledge and approval of lawyer’s taking [Agpalo]
Attorney’s Liens 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. Note: This is not in the nature of a broker’s commission
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(4) A fixed fee computed by the number of hours spent (5) A fixed fee based on a piece of work (6) A combination of any of the above stipulated fees.
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.
Compensation to which Lawyer is Entitled Depending on His Capacity Counsel de Parte – He is entitled to a reasonable attorney’s fees agreed upon or in the absence thereof, on quantum meruit basis.
Judicial actions to recover attorney’s fees (1) File an appropriate motion or petition as an incident in the main action where he rendered legal services; (2) File a separate civil action for collection of attorney’s fees.
Counsel de Officio – The counsel may not demand from the accused attorney’s fees even if he wins the case. He may however collect from the government funds if available based on the amount fixed by the court.
Suits to collect fees should be avoided and only when the circumstances imperatively require should a lawyer resort to lawsuit to enforce payment of fees. This is but a logical consequence of the legal profession not primarily being for economic compensation. [Agpalo]
Rule 138, Sec. 32. Compensation for attorneys de officio. Subject to availability of funds as may be provided by law the court may, in its discretion, order an attorney employed as counsel de officio to be compensated in such sum as the court may fix in accordance with section 24 of this rule. Whenever such compensation is allowed, it shall not be less than P30 in any case, nor more than the following amounts: (a) P50 in light felonies; (b) P100 in less grave felonies; (c) P200 in grave felonies other than capital offenses; (d) P500 in capital offenses.
An attorney-client relationship can be created by implied agreement, as when the attorney actually rendered legal services for a person who is a close friend. The obligation of such a person to pay attorney’s fees is based on the law of contracts’ concept of facio ut des (no one shall unjustly enrich himself at the expense of others. [Corpuz v. CA (1980)] Concept of Attorney’s Fees Ordinary Concept An attorney’s fee is the reasonable compensation paid to a lawyer for the legal services he has rendered to a client. The basis of this compensation is the fact of employment by the client.
Amicus Curiae – not entitled to attorney’s fees. Counsel Cannot Recover Full Amount despite Written Contract (1) When the services were not performed, and the lawyer withdrew before the case was finished, he will be allowed only reasonable fees (2) When there is justified dismissal of an attorney, the contract will be nullified and payment will be on quantum meruit basis (3) When the stipulated fees are unconscionable (4) When the stipulated fees are in excess of what is expressly provided by law (5) When the lawyer is guilty of fraud or bad faith in the manner of his employment (6) When the counsel’s services are worthless because of negligence (7) When the contract is contrary to laws, morals, and good policies
Extraordinary Concept An attorney’s fee is an indemnity for damages ordered by the court to be paid by the losing party to the prevailing party in a litigation. The basis of this is any of the cases authorized by law 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 (1997)] Factors of the value [Rule 138, Sec, 24] (1) Importance of the subject matter of controversy; (2) Extent of the services rendered; and (3) Professional standing of the attorney. Additionally, the court is not bound by the opinion of attorney’s as expert witness as to proper compensation and that written contract shall control the amount paid unless found by the court to be unconscionable or reasonable.
The mere fact that an agreement had been reached between attorney and client fixing the amount of the attorney's fees, does not insulate such agreement from review and modification by the Court where the fees clearly appear to be excessive or unreasonable. [Tanhueco v. De Dumo (1989)]
According to jurisprudence, the court may also take into consideration the client’s capacity to pay.
PRESERVATION OF CLIENT’S CONFIDENCES
Modes of payment (1) A fixed or absolute fee which is payable regardless of the result of the case (2) A contingent fee that is conditioned to the securing of a favorable judgment and recovery of money or property and the amount of which may be on a percentage basis (3) A fixed fee payable per appearance
Canon 21. A lawyer shall preserve the confidence and secrets of his client even after the attorney client relationship is terminated.
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The work product of the lawyer, including his effort and researches, contained in his files is confidential even after his death. Contents of lawyer’s files may not be disclosed without a client’s consent.
Rules of Court, Rule 138, 20(e). Duties of attorneys.—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;
Exceptions: (1) Some privileged communications lose their privileged character by some supervening act done pursuant to the purpose of the communication (e.g. a communication intended by the client to be sent to a third person through his attorney loses confidential character once it reached the third party). (2) 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. It does not extend to those made in contemplation of a crime or perpetration of a fraud. It is not within the profession of a lawyer to advise a client as to how he may commit a crime. Thus, the attorney-client privilege does not attach, there being no professional employment in the strict sense.
Rules of Court, Rule 130, Sec. 21(b). Privileged communication. —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 professional employment; nor can an attorney's secretary 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. Revised Penal Code, Art. 209. Betrayal of trust by an attorney or solicitor—Revelation of secrets.—In addition to the proper administrative action, the penalty of prision correccional in its minimum period, or a fine ranging from 200 to 1,000 pesos, or both, 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.
Reason for the rule (1) This duty exists because unless the client knows that his attorney cannot be compelled to reveal what is told to him, he will suppress what he thinks to be unfavorable and the advice which follows will be useless if not misleading. (2) The purpose of the attorney-client privilege is to encourage a client to make full disclosure to his attorney and to place unestricted confidence in him in matters affecting his rights or obligations.
The same penalty shall be imposed upon an attorney-atlaw 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 (1) A confidential communication refers to information transmitted by voluntary act of disclosure between attorney and client in confidence and by means which so far as the client is aware, discloses the information to no third person other than one reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it was given. (2) There is a difference between confidences and secrets of clients. While confidences refer to information protected by attorney-client privilege under the Revised Rules of Court (information pertinent to the case being handled), secrets are those other information gained in the professional relationship that the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to client (information not exactly pertinent to case). (3) The intent of client to make communication confidential must be apparent. But once conveyed to lawyer, confidentiality attaches not only to statements but also to other forms of communication. (4) Embraces not only oral or written statements but actions, signs or other means of communications. (5) Communication may be transmitted by any form of agency, such as a messenger, an interpreter or any other form of transmission. It is immaterial whether the agent is the agent of the attorney, the client or both.
Duty to preserve client's confidence (1) Neither attorney nor client nor anyone who stands in a peculiar relation of confidence with either of them can be compelled to disclose any privileged communication. (2) This canon also applies to prospective clients. Formerly, in order that a communication shall be privileged, the attorney-client relationship should exist at the time of communication. But at present, communication made by prospective client is covered for as long as it is made to the lawyer in his professional capacity. Duration of duty The lawyer’s duty to maintain inviolate his client’s confidence is perpetual. It outlasts even the lawyer’s employment. He may not do anything which will injuriously affect his former client nor may he at any time disclose or use against him any knowledge or information acquired by virtue of professional relationship. Neither 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. Silapan (2003)]
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Requisites for Privileged Communication to Attach (1) The person to whom information is given is a lawyer. No attorney-client relation when person is not a lawyer, even if such person undertakes to perform legal services. Exception: if a person is pretending to be a lawyer and client discloses confidential communications, the attorney-client privilege applies. (2) There is legal relationship existing (may be disregarded for prospective clients) (3) Legal advice must be sought from the attorney in his professional capacity with respect to communications relating to that purpose. Not privileged if advice is not within lawyer’s professional capacity (4) Some privileged communication may lose privileged character. Client must intend the communication be confidential. (5) Question of privilege determined by court. The burden of proof is on the party who asserts the privilege.
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A lawyer becomes familiar with all the facts connected with his client’s case. Such knowledge must be considered sacred and must be guarded with care to ensure the confidence of the client is not abused. Only when client consents will a lawyer be allowed to make use of said information. Use of said information, whether privileged or not, is prohibited if it is to the: (1) disadvantage of the client; (2) lawyer’s advantage; (3) advantage of third persons. (a) A lawyer may not disclose any information concerning the client’s case, which he acquired from the client in confidence, other than what may be necessary to prosecute or defend his client’s cause. (b) In fact, loyalty to the court may not override this privilege as said loyalty involves steadfast maintenance of principles which the courts themselves have evolved for the effective administration of justice; one of these principles is that of preservation of client’s confidence communicated to lawyer in his professional capacity. Breach of this fidelity is sufficient to warrant disciplinary sanction against the lawyer. (c) If a lawyer manages to acquire information regarding the opposing party’s cause, he must withdraw (d) Client may not make communications to opposing counsel to silence him (such communication is not privileged) (e) If corporate client, secret of 1 corporate officer may be disclosed to directors but not to others (f) Involves a balancing of loyalties (e.g. client committed perjury, should lawyer disclose?)
Persons Entitled to claim Privilege (1) Generally, the attorney-client privilege covers the lawyer, client and third persons who by reason of their work have acquired information about the case being handled. This includes the following: (a) attorney’s secretary, stenographer and clerk; (b) interpreter, messengers, or agents transmitting communication (c) an accountant, scientist, physician, engineer who has been hired for effective consultation. (2) Assignee of the client's interest may claim the privilege as far as the communication affects the realization of the assigned interest. (3) Identification of client privilege extends when the ff are not present: (a) commencement of litigation on behalf of the client, rd (b) identification relating to employment of 3 person, (c) employment of attorney with respect to future criminal/ fraudulent transaction, (d) prosecution of a lawyer for a criminal offense (4) This rule does not cover those kept for custodial purposes only nor contracts relating to attorney’s fees
The Exceptions to the General Rule. – (These exceptions to the general rule are found in Rule 21.01.) (1) When authorized by the client after acquanting him of the consequences of the disclosure (a) A waiver of the privilege must be made in entirety. A client may waive protection of privilege through lawyer except where the controversy involves the attorney’s relation with his client. In such case, only the client may waive privilege. (b) Consent given by client to lawyer’s secretary (staff/employees) will not give him/her the right to reveal confidences. Lawyer’s consent is necessary.
Examples of privileged matters (1) work product of lawyer (his effort, research and thought contained in his file) (2) a report of a physician, an accountant, an engineer or a technician, whose services have been secured by a client as part of his communication to his attorney or by the attorney to assist him render effective legal assistance to his client (3) records concerning an accident in which a party is involve (4) consultation which has to do the preparation of a client to take the witness stand
(2) When required by law (a) A lawyer may disclose commission of contemplated crimes or perpetuation of fraud considering that professional relationship should only be for lawful purposes. A person who is committing a crime or is about to commit a crime can have no privileged witness. For the application of the privilege to attach, the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future.
When Allowed Rule 21.01. A lawyer shall not reveal the confidence 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.
(3) When necessary to collect attorney's fees or to defend himself, his employees or associates or by judicial action
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(a) In case client files complaint against his lawyer or unreasonably refuses to pay his fees, client waives privilege in favor of lawyer who may disclose so much of client’s confidences as may be necessary to protect himself or to collect fees. It must be noted that a client may not be permitted to take advantage of the attorney-client relation to defeat the just claim of his lawyer.
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Rule 21.06. A lawyer shall avoid indiscreet conversation about a client’s affairs even with members of his family. A lawyer must not only preserve the confidences and secrets of his clients in his law office but also outside including his home. He should avoid committing calculated indiscretion, that is, accidental revelation of secrets obtained in his professional employment. Reckless or imprudent disclosure of the affairs of his clients may jeopardize them. Not every member of the lawyer’s family has the proper orientation and training for keeping client’s confidences and secrets.
Prohibited Disclosures and Use 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 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 interests.
A lawyer must have the fullest confidence of his client. If confidence is abused, as by the use by the lawyer of the client's secrets against his client, the profession will suffer by the loss thereof.
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 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 14.03. A lawyer may refuse to accept representation of an indigent client if: (c) he is not in a position to carry out the work effectively or competently (d) he labors under a conflict of interests between him and the prospective client or between a present client and the prospective client.
(a) The reason for the rule is that the work and product of a lawyer, such as his effort, research, and thought, and the records of his client, contained in his files are privileged matters. (b) Neither the lawyer nor, after his death, his heir, or legal representative may properly disclose the contents of such file cabinet without client’s consent
This rule clarifies that privilege communication applies even to prospective clients. The disclosure and the lawyer's opinion thereon create an attorney-client relationship, even though the lawyer does not eventually accept the employment or the prospective client did not thereafter actually engage the lawyer. By the consultation, the lawyer already learned of the secrets of prospective client. It is not fair if he will not be bound by the rule on privileged communication in respect of matters disclosed to him by a prospective client. This rule, of course, is subject to exception of representation of conflicting interests.
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 client.
In relation to conflict of interest, the lawyer should ascertain as soon as practicable whether the matter would involve a conflict of interest with his other client or with his own.
(a) Professional employment of a law firm is equivalent to retainer of the members thereof even though only one partner is consulted. When one partner tells another about the details of the case, it is not considered as disclosure to third persons because members of a law firm are considered as one entity.
A lawyer shall not reveal the confidence 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.
(b) The client’s secrets which clerical aids of lawyers learn of in the performance of their services are covered by privileged communication. It is the duty of lawyer to ensure that this is being followed. The prohibition against a lawyer from divulging the confidences and secrets of his clients will become futile exercise if his clerical aids are given liberty to do what is prohibited of the lawyer. (EX. Signing of confidentiality contract)
WITHDRAWAL OF SERVICES
Canon 22. A lawyer shall withdraw his services only for good cause and upon notice appropriate in the circumstances.
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Termination of Attorney-Client Relation (1) Withdrawal of lawyer under Rule 22.01 (2) Death of the lawyer (3) Disbarment or suspension of the lawyer from the practice of law (4) Declaration of presumptive death of lawyer (5) Conviction of a crime and imprisonment of lawyer (6) Discharge or dismissal of the lawyer by the client (7) Appointment or election of a lawyer to a government position which prohibits private practice of law (8) Death of client (9) Intervening incapacity or incompetence of the client during pendency of case (10) Full termination of the case
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At the discretion of the court, a lawyer who has been dismissed by a client is allowed to intervene in a case in order to protect the client’s rights. [Obando v. Figueras (2000)]
Suspension, Disbarment & Discipline of Lawyers NATURE AND CHARACTERISTICS OF DISCIPLINARY ACTIONS AGAINST LAWYERS (a) Sui Generis (b) Prescription
General Rule: The client has the right to terminate at any time with or without just cause.
DISCIPLINARY PROCEEDINGS AGAINST LAWYERS ARE SUI GENERIS:
Limitations (1) Client cannot deprive counsel of right to be paid services if dismissal is without cause (2) Client cannot discharge counsel as an excuse to secure repeated extensions of time (3) Notice of discharge is required for both court and adverse party
neither purely civil nor purely criminal. It is not—and does not involve—a trial of an action or a suit, but is rather an investigation by the Court in the conduct of its officers. Not being intended to inflict punishment, it is no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor. x x x Public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. [In Re: Almacen, supra]
Although a lawyer may withdraw his services when the client deliberately fails to pay the fees for the services, withdrawal is unjustified if client did not deliberately fail to pay [Montano v. IBP (2001)]
The withdrawal of complaints CANNOT divest the Court of its jurisdiction… The Court’s interest in the affairs of the Judiciary is of paramount concern. For sure, public interest is at stake in the conduct and actuations of officials and employees of the Judiciary. [Chan v. Algeria (2010)]
Rule 22.01. A lawyer may withdraw his services in any of the following case: (1) When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling; (2) When the client insists that the lawyer pursue conduct violative of these canons and rules; (3) When his inability to work with co-counsel will not promote the best interest of the client; (4) When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively; (5) When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement; (6) When the lawyer is elected or appointed to public office; and (7) Other similar cases.
It bears to stress that a case of suspension or disbarment is sui generis not meant to grant relief to a complainant in a civil case but is intended to cleanse the ranks of the legal profession of its undesirable members in order to protect the public and the courts. [Itong v. Florenido, (2011)] NATURE OF PROCEEDINGS
Neither a civil action nor a criminal proceeding; (1) Sui generis, it is a class of its own since it is neither civil nor criminal, but rather are investigations by the Court into the conduct of one of its officers (2) Confidential in nature THREE-FOLD PURPOSE OF THE CONFIDENTIALITY
(1) To enable the court to make its investigation free from any extraneous influence or interference (2) To protect the personal and professional reputation of attorneys from baseless charges of disgruntled, vindictive, and irresponsible persons or clients by prohibiting the publication of such charges pending their final resolution [Albano v. Coloma, AC No. (1967)] (3) To deter the press from publishing the charges or proceedings based thereon for even a verbatim reproduction of the complaint against an attorney in a newspaper may be actionable
Rule 22.02. A lawyer who withdraws or is discharged shall, subject to a retainer lien, immediately turn over all papers and property to which the client is entitled, and shall cooperate with his successor in the orderly transfer of the matter, including all information necessary for the proper handling of the matter. Conditions for the Substitution of Counsel (1) Written request for substitution (2) Written consent of client (3) Written consent of the attorney to be substituted or in the absence, proof of service of notice of said motion to the attorney to be substituted
The confidentiality of the proceedings is a privilege which MAY BE WAIVED by the lawyer in whom and for the protection of whose personal and professional reputation it
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is vested, as by presenting the testimony in a disbarment case or using it as impeaching evidence in a civil suit [Villain v. IAC (1986)]
BAR OPERATIONS COMMISSION
Gross Misconduct - any inexcusable, shameful, or flagrant unlawful conduct on the part of the person concerned in the administration of justice which is prejudicial to the rights of the parties or to the right determination of a cause, a conduct that is generally motivated by a predetermined, obstinate, or intentional purpose [Yumol v. Ferrer Sr.(2005)]
(a) Defense of double jeopardy is not available (b) Can be initiated by the SC, motu propio, or by the IBP. It can be initiated without a complaint (c) Can proceed regardless of interest of the complainants (d) Imprescriptible (e) It is itself due process of law (f) In pari delicto rule is not applicable (g) No prejudicial question in disbarment proceedings (h) Penalty in a disbarment case cannot be in the alternative (i) Monetary claims cannot be granted except restitution and return of monies and properties of the client given in the course of the lawyer-client relationship
(3) Grossly immoral conduct (See Chapter 1) (4) Conviction of a crime involving moral turpitude There must be a conviction. Hence, the mere existence of criminal charges against the lawyer cannot be a ground for his disbarment or suspension (5) Violation of lawyer’s oath (6) Willful disobedience of any lawful order of a superior court (7) Corruptly or willfully appearing as an attorney for a party to case without an authority to do so
OBJECTIVES OF SUSPENSION AND DISBARMENT
(1) To compel the attorney to deal fairly and honestly with the court and his client, requiring him to be competent, honorable, and reliable; (2) To remove from the profession a person whose misconduct has proven himself unfit for the duties and responsibilities belonging to the office of an attorney; (3) To punish the lawyer; (4) To set an example or warning for the other members of the bar; (5) To safeguard the administration of justice from dishonest and incompetent lawyers; (6) To protect the public and the court from the misbehavior of its officers
Other Statutory Grounds (1) Acquisition of an interest in the subject matter of the litigation, either through purchase or assignment [Art 1491, New Civil Code] (2) Breach of professional duty, inexcusable negligence, or ignorance, or for the revelation of the client’s secrets [Art. 208, Revised Penal Code] (3) Representing conflicting interests [Art. 209, Revised Penal Code] The statutory enumeration of the grounds for disbarment or suspension is not to be taken as a limitation on the general power of courts to suspend or disbar a lawyer. The inherent power of the court over its officers cannot be restricted. [Quingwa v. Puno (1967)]
GROUNDS Rules of Court, Rule 138, Section 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 the admission to practice or for a willful disobedience of any lawful order of a superior court or for corruptly or willful 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.
Lawyer’s Misconduct in his Private Capacity A lawyer may be disbarred for any misconduct, whether in his professional or private capacity. Any interested person or the court motu propio may initiate disciplinary proceedings. [Marcelo v. Javier, A.C. No. 3248, (1992)] Misconduct Before or Incident to Admission The fact that he lacked any of the qualifications for membership in the bar as the time he took his oath is a ground for his disbarment [Lim v. Antonio, (1971)] Misconduct Committed Outside Philippine Jurisdiction If he commits misconduct outside Philippine jurisdiction, which is also a ground for disciplinary action under Philippine law, he may be suspended or disbarred in this country [Agpalo]
Grounds for Disbarment Rule 138, Sec. 27, Revised Rules of Court (1) Deceit - fraudulent and deceptive misrepresentation, artifice, or device used by one or more persons to deceive and trick another. There must be false representation as a matter of fact. (2) Malpractice, or other gross misconduct in office
Officers Authorized to Investigate Disbarment Cases (1) Supreme Court (2) IBP through its Commission on Bar Discipline or authorized investigators (3) Office of the Solicitor General
Legal Malpractice - consists of failure of an attorney to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of tasks which they undertake, and when such failure proximately causes damage, it gives rise to an action in tort [Tan Tek Beng v. David, AC No. 1261]
All charges against Justices of the Court of Appeals and the Sandiganbayan, and Judges of the Court of Tax
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Appeals and lower courts, even if lawyers are jointly charged with them, shall be filed with the Supreme Court. If filed with the IBP, it shall immediately be forwarded to the Supreme Court
APPLICATION OF THE DOCTRINE OF RES IPSA LOQUITOR
This principle applies to both judges and lawyers. Judges had been dismissed form the service without the need of a formal investigation because based on the records, the gross misconduct or inefficacy of the judges clearly appears [Uy v. Mercado (1987)]
The power to DISBAR a lawyer is exclusively vested in the Supreme Court
The same principle applies to lawyers… when it appears that the lawyer conducted himself in a manner which exhibits his blatant disrespect to the court, or his want of good moral character… may be disbarred or suspended without need of a trial-type proceeding. [Prudential Bank v. Castro, (1986)]
Complaints for disbarment may not lie against impeachable officers of the government during their tenure. They may only be removed from office by impeachment for and conviction of certain offenses. Disbarment should not be decreed where any punishment less severe such as reprimand, suspension or fine would accomplish the end desired. [Amaya v. Tecson, 450 SCRA 510]
The purpose and nature of disbarment proceedings make the number of defenses available in civil and criminal cases INAPPLICABLE in disciplinary proceedings. The Statute of Limitations is NOT a defense therein.
Suspension and Disbarment of Lawyers Holding Government Offices General Rule: A lawyer who holds a government office MAY NOT be disciplined as a member of the Bar for misconduct in the discharge of his duties as a government official.
The two year prescriptive period for initiating a suspension or disbarment proceeding against a lawyer should be construed to mean two years from date of discovery of the professional misconduct [Isenhardt v. Atty. Real, (2012)]
Exception: If the misconduct of the government official is of such a character as to affect his qualification as a lawyer or to show moral delinquency, then he may be disciplined as a member of the Bar upon such ground.
DISCIPLINE OF FILIPINO LAWYERS PRACTICE IN FOREIGN JURISDICTIONS The rule is that a Philippine lawyer may practice law only in the country. He may, however, be admitted to the bar in a foreign country, where he practices law in both countries. If he commits a misconduct outside Philippine jurisdiction, which is also a ground for disciplinary action under Philippine law, he may be suspended or disbarred in this country.
Quantum of Proof; Applicability of Presumption of Innocence The Court has consistently held that in suspension or disbarment proceedings against lawyers, the lawyer enjoys the presumption of innocence, and the burden of proof rests upon the complainant. The evidence required in the suspension or disbarment proceedings is preponderance of evidence. In case the evidence of the parties are equally balanced, the equipoise doctrine mandates a decision in favor of the defendant. (Siao Aba et al v. Atty. De Guzman Jr et al (2011))
(1) Client is prejudiced by lawyer’s negligence and misconduct. (2) Breach of fiduciary obligation (3) Civil liability to third persons (4) Libelous words in pleadings; violation of communication privilege (5) Liability for costs of suit (treble costs) – when lawyer is made liable for insisting on client’s patently unmeritorious case or interposing appeal merely to delay litigation
PROCEEDINGS PROCEDURE FOR SUSPENSION OR DISBARMENT OF ATTORNEYS BY THE IBP PROCEDURE FOR SUSPENSION OR DISBARMENT OF ATTORNEYS (RULE 139-B) BY THE SUPREME COURT MOTU PROPIO
By division – one year or less
Suspension Fine Suspension and Fine
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En banc – more than one year Division – P10,000 or less
En banc – more than P10,000 En banc - If suspension exceeds 1 year OR fine exceeds P10,000
(1) Prejudicing client through malicious breach of professional duty (2) Revealing client secrets (3) Representing adverse interests (4) Introducing false evidence (5) Misappropriating client’s funds (estafa) (6) Libel except if statements are connected with the relevant, pertinent, and material to the cause in hand or the subject of the inquiry
In case of two or more suspensions: Service will be successive, not simultaneous An investigating judge cannot dismiss a case. The investigating judge’s authority is only to investigate, make a report and recommendation on the case to be submitted to the SC for final determination [Garciano v. Sebastian (1994)]
COSTS OF SUIT
General Rule: Losing client and not the lawyer is liable for costs, since the lawyer is not a party-litigant
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Exception: When the lawyer insisted on client’s patently unmeritorious case the court may adjudge lawyer to pay treble costs of suit
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FORMS OF DISCIPLINARY MEASURES
(1) Warning – an act or fact of putting one on his guard against an impending danger, evil consequences or penalties. (2) Admonition – a gentle or friendly reproof, mild rebuke, warning or reminder, counseling, on a fault, error or oversight; an expression of authoritative advice. (3) Reprimand – a public and formal censure or severe reproof, administered to a person in fault by his superior officer or a body to which he belongs. It is imposed on a minor infraction of the lawyer’s duty to the court or client (4) Suspension – a temporary withholding of a lawyer’s right to practice his profession as a lawyer for a certain period or for an indefinite period of time. (a) Definite (b) Indefinite – qualified disbarment; lawyer determines for himself for how long or how short his suspension shall last by proving to court that he is once again fit to resume practice of law. (5) Censure – official reprimand. (6) Disbarment – the act of the Philippine Supreme Court in withdrawing from an attorney the privilege to practice law. The name of the lawyer is stricken out from the roll of attorneys. (7) Interim Suspension – the temporary suspension of a lawyer from the practice of law pending imposition of final discipline. It includes: (a) Suspension upon conviction of a serious crime. (b) Suspension when the lawyer’s continuing conduct is likely to cause immediate and serious injury to a client or public. (8) Probation – a sanction that allows a lawyer to practice law under specified conditions.
CONTEMPT OF COURT
It is exercised on preservative and not on vindictive principles and on corrective rather than the retaliatory idea of punishment. It is criminal in nature. The power to punish for contempt is inherent in all courts. It is essential in the observance of order in judicial proceedings and to enforce judgment, orders and writs. KINDS OF CONTEMPT
(1) Direct Contempt - Consists of misbehavior in the presence of or near a court or judge as to interrupt or obstruct the proceedings before the court or the administration of justice. (2) Indirect or Constructive Contempt - One committed away from the court involving disobedience of or resistance to a lawful writ, process, order, judgment or command of the court, tending to belittle, degrade, obstruct, interrupt or embarrass the court. (3) Civil contempt - Failure to do something ordered by the court which is for the benefit of the party. (4) Criminal contempt - Consists of any conduct directed against the authority or dignity of the court. ACTS OF A LAWYER CONSTITUTING CONTEMPT
(1) (2) (3) (4) (5) (6)
Misbehavior as officer of court Disobedience or resistance to court order Abuse or interference with judicial proceedings Obstruction in administration of justice Misleading courts Making false allegations, criticisms, insults, veiled threats against the courts (7) Aiding in unauthorized practice of law (suspended or disbarred) (8) Unlawful retention of client’s funds (9) Advise client to commit contemptuous acts
OTHER SANCTIONS AND REMEDIES
(1) (2) (3) (4) (5)
Restitution Assessment of costs Limitation upon practice Appointment of a receiver Requirement that a lawyer take the bar examination or professional responsibility examination (6) Requirement that a lawyer attend continuing education courses (7) Other requirements that the supreme court or disciplinary board deems consistent with the purposes of sanctions
POWER TO DISCIPLINE ERRANT LAWYERS
Rules of Court, Rule 138, Sec. 27. 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 the admission to practice or for a willful disobedience of any lawful order of a superior court or for corruptly or willful 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.
Extent of disciplinary action depends on attendance of mitigating or aggravating circumstance. (1) The presence of mitigating circumstances may justify suspension instead of disbarment, and censure or reprimand instead of suspension. (2) Inverse rule applies where aggravating circumstances are present.
Rules of Court, Rule 139 B, Sec. 16. Suspension of attorney by the Court of Appeals or a Regional Trial Court. The Court of Appeals or Regional Trial Court may suspend an attorney from practice for any of the causes named in Rule 138, Section 27 until further action of the Supreme Court in the case.
(1) Absence of a prior disciplinary record (2) Absence of a dishonest or selfish motive; (3) Personal or emotional problems;
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(4) Timely good faith effort to make restitution or to rectify consequences of misconduct; (5) Full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (6) Inexperience in the practice of law; (7) Character or reputation; (8) Physical or mental disability or impairment; (9) Delay in disciplinary proceedings; (10) Interim rehabilitation; (11) Imposition of other penalties or sanctions; (12) Remorse; (13) Remoteness of prior offenses. (IBP Guidelines 9.32) (14) Others: (a) Good Faith; (b) Want of intention to commit a wrong; (c) Lack of material damage to the complaining witness; (d) Desistance of complainant; (e) Error in judgment; (f) Honest and efficient service in various government positions; (g) Ready admission of the infraction coupled with explanation and plea for forgiveness; (h) Clean record of professional service in the past; (i) Rendered professional services out of pure generosity; (j) Punished in another capacity for a misconduct for which he now faces a disbarment proceeding; (k) Old Age & long membership (may also be an aggravation depending on the circumstance);
wipe out conviction as well as offense itself and the grant thereof in favor of a lawyer is a bar to a proceeding for disbarment against him based solely on commission of such offense. (a) The reason is that the respondent lawyer, after the absolute pardon, is as guiltless and innocent as if he never committed the offense at all. (3) Absolute, after conviction – If absolute pardon is given to lawyer after being disbarred for conviction of a crime, it does not automatically entitle him to reinstatement to the bar. It must be shown by evidence aside from absolute pardon that he is now a person of good moral character and fit and proper person to practice law. In case of a conditional pardon, there will be a remission of unexpired period of sentence.
EFFECT OF DESISTANCE OF COMPLAINANT
EFFECT OF SUSPENSION OR DISBARMENT
(1) Cannot practice law without being held liable for contempt of court (2) Disbarred for violation of the suspension order (3) If holding a government office which requires membership in the bar, dismissal from such office but this rule does not apply to impeachable officials However, the suspended or disbarred lawyer may appear as counsel for himself, the same not being practice of law but the exercise of a right. A judgment of suspension or disbarment is always subject to change or modification by the court.
(1) (2) (3) (4) (5)
Prior disciplinary offenses; Dishonest or selfish motive; A pattern of misconduct; Multiple offenses; Bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (6) Submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (7) Refusal to acknowledge wrongful nature of conduct; (8) Vulnerability of victim; (9) Substantial experience in the practice of law; (10) Indifference to making restitution. (IBP Guidelines 9.22) (11) Others: (a) Abuse of authority or of attorney-client relationship; (b) Sexual intercourse with a relative; (c) Making the institution of marriage a mockery; (d) Charge of gross immorality; (e) Previous punishment as member of the bar; (f) Defraud upon the government; (g) Use of knowledge or information, acquired in the course of a previous professional employment, against a former client.
The complaint is not dismissed except if the reason of the withdrawal or desistance is the insufficiency of evidence. Neither does desistance or withdrawal of the charges deprive the court of the authority to proceed or determine the matter. EFFECTS OF COMPROMISE AGREEMENTS
Dismissal of the administrative case is not warranted despite a compromise agreement or of the fact that a complainant forgave a respondent lawyer. Rationale: (1) The Court’s disciplinary authority is not dependent on or cannot be frustrated by the private arrangements entered into by the parties; otherwise, the prompt and fair administration of justice, as well as the discipline of court personnel, will be undermined. (2) Public interest is at stake in the conduct and actuations of the officials and employees of the Judiciary. (3) The Court’s interest in the affairs of the Judiciary is a paramount concern that bows to no limits. [Benigno Reas v. Carlos Relacion, (2011)] EFFECT OF DEATH OF LAWYER DURING PENDENCY OF DISCIPLINARY ACTION AGAINST HIM
(1) Action rendered moot and academic. (2) Court may still resolve the case on its merit in order to clear publicly the name of the lawyer.
EFFECT OF EXECUTIVE PARDON
(1) Conditional – The disbarment case will not be dismissed on the basis thereof. (2) Absolute, before conviction – The disbarment case will be dismissed. Absolute pardon by the President may
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Readmission to the Bar
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(5) The Sworn Statement shall be considered as proof of respondent’s compliance with the order of suspension. xxx [Maniago v. De Dios, (2010)]
READMISSION TO THE BAR It is the restoration in disbarment proceedings to a disbarred lawyer the privilege to practice law.
LAWYERS WHO HAVE BEEN DISBARRED Guidelines in resolving requests for judicial clemency of disbarred laywers (1) There must be proof of remorse and reformation. These include testimonials of credible institutions and personalities. (2) Sufficient time must have lapsed from the imposition of the penalty to ensure a period of reformation. (3) The age of the person asking for clemency must show that he still has productive years ahead of him that can be put to good use by giving him a chance to redeem himself. (4) There must be a showing of promise (intellectual aptitude, contribution to legal scholarship, etc), and potential for public service. (5) Other relevant factors to justify clemency. [Re: Letter of Judge Diaz (2007)]
The sole object of the court is to determine whether or not the applicant has satisfied and convinced the court by positive evidence that the effort he has made toward the rehabilitation of his character has been successful. [In re Rusiana,(1974)] STATUTORY BASIS 1987 Constitution, Art. VIII, Sec. 5(5). The Supreme Court shall have the following powers: … (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of law, the integrated bar and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases shall be uniform for all courts of the same grade and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
A previously disbarred lawyer who is given absolute pardon by the President is not automatically reinstated, he must still file a petition for reinstatement with the SC. LAWYERS WHO HAVE BEEN REPATRIATED Lawyers who reacquire their Philippine citizenship should apply to the SC for license or permit to practice their profession. [Sec. 5(4), RA 9225]
In order that there is reinstatement, the following must be taken into consideration: (1) The applicant’s character and standing prior to disbarment; (2) The nature or character of the misconduct for which he is disbarred; (3) His conduct subsequent to disbarment [Cui v. Cui, 1964] (4) His efficient government service [In Re: Adriatico,(1910)] (5) The time that has elapsed between disbarment and the application for reinstatement and the circumstances that he has been sufficiently punished and disciplined [Prudential Bank v. Benjamin Grecia, (1986)] (6) Applicant’s appreciation of significance of his dereliction and his assurance that he now possesses the requisite probity and integrity; (7) Favorable endorsement of the IBP and local government officials and citizens of his community, pleas of his loved ones [Yap Tan v. Sabandal, 1989]
EFFECTS OF REINSTATEMENT (1) Recognition of moral rehabilitation and mental fitness to practice law; (2) Lawyer shall be subject to same law, rules and regulations as those applicable to any other lawyer; (3) Lawyer must comply with the conditions imposed on his readmission. Note: Good moral character is not only a condition precedent to admission to the practice of law but is a continuing requirement.
Mandatory Continuing Legal Education
LAWYERS WHO HAVE BEEN SUSPENDED
GUIDELINES FOR LIFTING THE ORDER OF SUSPENSION
PURPOSE OF THE MCLE
xxx (3) Upon expiration of the period of suspension, respondent shall file a Sworn Statement with the Court, through the Office of the Bar Confidant, stating therein that he or she has desisted from the practice of law and has not appeared in any court during the period of his or her suspension; (4) Copies of the Sworn Statement shall be furnished to the Local Chapter of the IBP and to the Executive Judge of the courts where the respondent has pending cases handled by him or her, and/or where he or she has appeared as counsel;
Continuing legal education is required to ensure that, throughout their career, members of the Integrated Bar will: (1) Keep abreast with law and jurisprudence (2 Maintain the ethics of the profession (3) Enhance the standards of the practice of law (Rule 1, Section 1) REQUIREMENTS OF COMPLETION OF THE MCLE Members of the IBP not exempt under Rule 7 shall complete every three (3) years at least thirty-six (36) hours
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of continuing legal education activities approved by the MCLE Committee. The 36 hours shall be allocated according to the following: Subject
The initial compliance period after admission or readmission shall begin on the first day of the month of admission or readmission and shall end on the same day as that of all other members in the same Compliance Group.
Number of Hours
(a) Where four (4) months or less remain of the initial compliance period after admission or readmission, the member is not required to comply with the program requirement for the initial compliance. (b) Where more than four (4) months remain of the initial compliance period after admission or readmission, the member shall be required to complete a number of hours of approved continuing legal education activities equal to the number of months remaining in the compliance period in which the member is admitted or readmitted. Such member shall be required to complete a number of hours of education in legal ethics in proportion to the number of months remaining in the compliance period. Fractions of hours shall be rounded up to the next whole number. (Rule 3, Section 3)
At least six (6) hours
Trial and Pretrial Skills Alternative Resolution
At least four (4) hours
Dispute At least five (5) hours
Updates on Substantive and At least nine (9) hours Procedural Law, and Jurisprudence Legal Writing Advocacy
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Oral At least four (4) hours
International Law and At least two (2) hours International Conventions Such subjects as may be Six (6) hours prescribed by the MCLE Committee
EXEMPTIONS Some members of the Bar such as the President, Vice President, Senators, Members of the House of Representatives, justices of the Supreme Court, among others, are exempted from the MCLE requirement. (See Rule 7, Sec. 1)
[Statutory Basis: Bar Matter 850, Rule 2, Section 2] COMPLIANCE INITIAL COMPLIANCE PERIOD
The initial compliance period shall begin not later than three (3) months from the adoption of Bar Matter 850.
OTHER PARTIES EXEMPTED FROM THE MCLE
The following Members of the Bar are likewise exempt: (a) Those who are not in law practice, private or public. (b) Those who have retired from law practice with approval of the IBP Board of Governors. (Rule 7, Section 2)
Except for the initial compliance period for members admitted or readmitted after the establishment of the program, all compliance periods shall be for thirty-six (36) months and shall begin the day after the end of the previous compliance period. (Rule 3, Section 1)
GOOD CAUSE FOR EXEMPTION FROM OR MODIFICATION OF REQUIREMENT
A member may file a verified request setting forth good cause for exemption (such as physical disability, illness, post graduate study abroad, proven expertise in law, etc.) from compliance with or modification of any of the requirements, including an extension of time for compliance, in accordance with a procedure to be established by the MCLE Committee. (Rule 7, Section 3)
Members of the IBP not exempt from the MCLE requirement shall be divided into three (3) compliance groups, namely: (a) Compliance Group 1. - Members in the National Capital Region (NCR) or Metro Manila are assigned to Compliance Group 1. (b) Compliance Group 2. - Members in Luzon outside NCR are assigned to Compliance Group 2. (c) Compliance Group 3. - Members in Visayas and Mindanao are assigned to Compliance Group 3.
CHANGE OF STATUS
The compliance period shall begin on the first day of the month in which a member ceases to be exempt under Sections 1, 2, or 3 of this Rule and shall end on the same day as that of all other members in the same Compliance Group. (Rule 7, Section 4)
Nevertheless, members may participate in any legal education activity wherever it may be available to earn credit unit toward compliance with the MCLE requirement. (Rule 3, Section 2)
PROOF OF EXEMPTION
Applications for exemption from or modification of the MCLE requirement shall be under oath and supported by documents. (Rule 7, Section 5)
COMPLIANCE PERIOD OF MEMBERS ADMITTED OR READMITTED AFTER ESTABLISHMENT OF THE PROGRAM
Members admitted or readmitted to the Bar after the establishment of the program shall be assigned to the appropriate Compliance Group based on their Chapter membership on the date of admission or readmission.
SANCTIONS NON-COMPLIANCE FEE A member who, for whatever reason, is in non-compliance at the end of the compliance period shall pay a noncompliance fee. (Rule 13, Section 1)
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QUALIFICATIONS OF NOTARY PUBLIC (1) Citizen of the Philippines (2) Over 21 years of age (3) Philippine resident for at least 1 year and maintains a regular place of work or business in the city or province where the commission is to be issued (4) Member of the Philippine Bar in good standing, with clearances from the Bar Confidant of the SC and the IBP (5) No conviction in the first instance for any crime involving moral turpitude
LISTING AS DELINQUENT MEMBER
A member who fails to comply with the requirements after the sixty (60) day period for compliance has expired, shall be listed as a delinquent member of the IBP upon the recommendation of the MCLE Committee. The investigation of a member for non-compliance shall be conducted by the IBP's Commission on Bar Discipline as a fact-finding arm of the MCLE Committee. (Rule 13, Section 2) ACCRUAL OF MEMBERSHIP FEE
Note: When there are no persons with the necessary qualifications OR where there are qualified persons but they refuse appointment, a notary public does NOT have to be a lawyer. The following persons may be appointed as notaries: (1) Those who have passed the studies of law in a reputable university (2) A clerk or deputy clerk of court for a period of not less than two years
Membership fees shall continue to accrue at the active rate against a member during the period he/she is listed as a delinquent member. (Section 3) Note: Bar Matter No. 1922 - Re: Recommendation of the Mandatory Continuing Legal Education (MCLE) Board to Indicate in All Pleadings Filed with the Courts the Counsel's MCLE Certificate of Compliance or Certificate of Exemption. (1) Due to the diminishing interest of the members of the Bar in the MCLE requirement program as noted in the Letter of Justice Eduardo Nachura, the Court resolved, upon the recommendation of the Committee on Legal Education and Bar Matters, to REQUIRE practicing members of the bar to INDICATE in all pleadings filed before the courts of quasi-judicial bodies, the number and date of issue of their MCLE Certificate of Compliance or Certificate of Exemption, as may be applicable, for the immediately preceding compliance period. (2) Failure to disclose the required information would cause the dismissal of the case and the expunction of the pleadings from the records.
TERM OF OFFICE OF NOTARY PUBLIC
A notarial commission is granted by an executive judge after petition of the lawyer, and is good for two years st commencing on the 1 day of January of the year in which the commission is made UNLESS earlier revoked or the notary public has resigned according to these Rules and the Rules of Court. [Rule III, Sec. 11]. Every petition undergoes a hearing and approved after: (1) Petition is proven sufficient in form and substance (2) Petitioner proves allegations in petition (3) Petitioner establishes to the satisfaction of the court that he has read and understood the Rules on Notarial Practice
POWERS AND LIMITATIONS
Notary Public or a notary is any person commissioned to perform official acts (1) Acknowledgements; (2) Oaths and affirmations; (3) Jurats; (4) Signature witnessing; (5) Copy certifications; and (6) Any other act authorizes in the rules
AUTHORITY OF THE NOTARY
What can be notarized: A notary can notarize any document, upon request of affiant. Sec. 1. Powers. – A notary public is (a) Empowered to perform the following material acts: (1) Acknowledgments; (2) Oaths and affirmations; (3) Jurats; (4) Signature witnessings; (5) Copy certifications; and (6) Any other act authorized by these rules (b) Authorized to certify the affixing of a signature by thumb or mark on an instrument or document presented for notarization if: (1) The thumb or other mark is affixed in the presence of the notary public and two (2) disinterested and unaffected witnesses to the instrument or document; (2) Both witnesses sign their own names in addition of the thumb or other mark; (3) The notary public writes below the thumb or other mark: “Thumb or Other Mark affixed by (name and addresses of witnesses) and undersigned notary
Purpose: To verify the personal appearance of affiant and the genuineness of signature To authenticate document and verify due execution, making document admissible in evidence without proof of authenticity Notarization is not an empty, meaningless, routinary act. It is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public…A notarial document is by law entitled to full faith and credit upon its face. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgement executed by a notary public. [Baylon v. Almo, (2008)]
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(e) That they acknowledged personally before him that they voluntarily and freely executed the same (2) Converts a private document into a public one and renders it admissible in court without further proof of its authenticity (3) Documents enjoy a presumption of regularity. It constitutes prima facie evidence of facts which give rise to their execution and of the date of said execution, but not of the truthfulness of the statements
public”; and (4) The notary public notarizes the signature by thumb or other mark through an acknowledgement, jurat, or signature witnessing (c) Authorized to sign on behalf of a person who is physically unable to sign or make a mark on an instrument or document if: (1) The notary public is directed by the person unable to sign or make a mark to sign on his behalf; (2) The signature of the notary public is affixed in the presence of two disinterested and unaffected witnesses to the instrument or document; (3) Both witnesses sign their own names; (4) The notary public writes below his signature: “Signature affixed by notary in presence of (names and addresses of person and two (2) witnesses)” ; and (5) The notary public notarizes his signature by acknowledgement or jurat
Reason: The law assumes that the act which the officer witnessed and certified to or the date written by him is not shown to be false since notaries are public officers PUNISHABLE ACTS
The Executive Judge shall cause the prosecution of any person who: (1) Knowingly acts or otherwise impersonates a notary public (2) Knowingly obtains, conceals, defaces, or destroys the seal, notary register, or official records of a notary public (3) Knowingly solicits, coerces, or in any way influences a notary public to commit official misconduct [Rule XII, Sec. 1]
Irregularity in person Disqualifications (1) If notary is personally a party to the instrument [Villarin v Sabate, AC No. 3224, Feb. 2000] (2) If he will receive as an indirect and direct result any commission, fee, advantage, right, title, interest, cash, property, or other consideration in excess of what is provided in these rules (3) If notary is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal up to the fourth degree [Rule IV, Sec. 3]
By respondent’s reckless act of notarizing the Deed of Absolute Sale without ascertaining the vendors signatories thereto were the very same persons who executed it and personally appeared before him to attest to the contents and the truth of what were stated therein. [Aquino v. Manese (2003)]
Mandatory refusal to notarize (1) If the transaction is unlawful or immoral (2) If the signatory shows signs that he does not understand consequences of the act, per the notary’s judgment (3) If the signatory appears not to act of his own free will, per the notary’s judgment (4) If the document or instrument to be notarized is considered as an improper document by these Rules
Respondent notarized the Special Power of Attorney, purportedly bearing the signature of Benitez, on Jan. 4, 2001 or more than two months after the latter’s death. Clearly, the respondent lied and intentionally perpetuated an untruthful statement. [Sicat v Ariola (2005)] Respondent antedated a document in order to exculpate someone from being convicted of the Anti-Dummy Law, which is a violation of Rule 1.01 of Canon 1 of the Code of Professional Responsibility as well as the 2004 Rules on Notarial Practice. [Mondejar v. Rubia (2006)]
Note: Improper Instrument/Document is a blank or incomplete instrument or document without appropriate notarial certification [Rule IV, Sec. 6]
NOTARIAL REGISTER A chronological official notarial register of notarial acts consisting of a permanently bound book with numbered pages. There must only be one active register ay any given time.
Citing Albano v. Mun. Judge Gapusan, A.M. No. 1022-MJ, (1976), the Court ruled that a notary public should not facilitate the disintegration of marriage and the family by encouraging the separation of the spouses and extrajudicially dissolving the conjugal partnership through the notarization of a “Kasunduan Ng Paghihiwalay.” [Espinosa v. Omaña (2011)]
ENTRIES IN THE NOTARIAL REGISTER
(1) The following: (a) Entry number and page number; (b) Date and time of day of the notarial act; (c) Type of notarial act; the title or description of the instrument, document or proceeding; (d) The name and address of each principal; (e) The competent evidence of identity as defined by these Rules if the signatory is not personally known to the notary; (f) The name and address of each credible witness swearing to or affirming the person's identity;
EFFECTS OF NOTARIZATION
(1) The notary in effect proclaims to the world: (a) That all parties therein personally appeared before him (b) That they are personally known to him (c) That they are the same persons who executed the instrument (d) That he inquired into the voluntariness of the execution of the instrument; and
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(g) The fee charged for the notarial act; (h) The address where the notarization was performed if not in the notary's regular place of work or business; and (i) Any other circumstance the notary public may deem of significance or relevance.
Official seal – two-inch diameter seal with the words “Philippines”, attorney’s name at the margin and the roll of attorney’s number.
(2) Circumstances of any request to inspect or copy an entry in the notarial register, including (a) The requester's name, (b) Address (c) Signature (d) Thumb mark or other recognized identifier, and (e) Evidence of identity.
For buyers, a certified copy of the commission is necessary for purchase. One seal per certificate.
For vendors, the sale of the seal may only be upon judicial authority, for a period of 4 years.
The act of a lawyer notarizing a Special Power of Attorney knowing that the person who allegedly executed it is dead is a serious breach of the sacred obligation imposed upon him by the Code of Professional Responsibility, specifically Rule 1.01 of Canon 1. [Sicat v. Arriola, (2005)]
The reasons for refusal to allow inspection or copying of a journal entry shall also be recorded.
A lawyer is guilty of misconduct in the performance of his duties if he fails to register in his notarial register the affidavits-complaints which were filed in an administrative case before the Civil Service Commission. [Aquino v. Pascua, (2007)]
(3) When the instrument or document is a contract, the notary public shall keep an original copy thereof as part of his records and enter in said records a brief description of the substance thereof and shall give to each entry a consecutive number, beginning with number one in each calendar year. He shall also retain a duplicate original copy for the Clerk of Court.
JURISDICTION OF NOTARY PUBLIC AND PLACE OF NOTARIZATION In any place within the territorial jurisdiction of the commissioning court for a period of two (2) years commencing the first day of January of the year in which the commissioning is made, unless earlier revoked or the notary public has resigned under these Rules and the Rules of Court.
(4) The notary public shall give to each instrument or document executed, sworn to, or acknowledged before him a number corresponding to the one in his register, and shall also state on the instrument or document the page/s of his register on which the same is recorded. No blank line shall be left between entries.
General Rule: Notarization of document must be at the notary public’s regular place of work.
(5) In case of a protest of any draft, bill of exchange or promissory note, the notary public shall (a) Make a full and true record of all proceedings in relation thereto and (b) Shall note therein whether the demand for the sum of money was made, by whom, when, and where, whether he presented such draft, bill or not, whether notices were given, to whom and in what manner; where the same was made, when and to whom and where directed; and of every other fact touching the same.
Exceptions: (1) In public offices, convention halls and other places where oaths of office are administered, public function areas in hotels and similar areas used for the signing of instruments or documents requiring notarization (2) Hospitals and other medical institutions where a part to an instrument is confined for treatment (3) Any place where a party to the instrument requiring notarization is under detention REVOCATION OF COMMISSION
(6) At the end of each week, the notary public shall certify in his notarial register the number of instruments or documents executed, sworn to, acknowledged, or protested before him; or if none, this certificate shall show this fact.
RULE XI Sec. 1. Revocation and Administrative Sanctions. – (a) The Executive Judge shall revoke a notarial commission for any ground on which an application for a commission may be denied. (b) In addition, the Executive Judge may revoke the commission of, or impose appropriate administrative sanctions upon, any notary public who: (1) fails to keep a notarial register; (2) fails to make the proper entry or entries in his notarial register concerning his notarial acts; (3) fails to send the copy of the entries to the Executive Judge within the first ten (10) days of the month following; (4) fails to affix to acknowledgments the date of expiration of his commission; (5) fails to submit his notarial register, when filled, to the Executive Judge; (6) fails to make his report, within a reasonable time, to
(7) A certified copy of each month's entries and a duplicate original copy of any instrument acknowledged before the notary public shall, within the first ten (10) days of the month following, be forwarded to the Clerk of Court and shall be under the responsibility of such officer. If there is no entry to certify for the month, the notary shall forward a statement to this effect in lieu of certified copies herein required. Official signature – signed by hand, not by facsimile stamp or printing device, and at the time of the notarization
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the Executive Judge concerning the performance of his duties, as may be required by the judge; (7) fails to require the presence of a principal at the time of the notarial act; (8) fails to identify a principal on the basis of personal knowledge or competent evidence; (9) executes a false or incomplete certificate under Section 5, Rule IV; (10) knowingly performs or fails to perform any other act prohibited or mandated by these Rules; and (11) commits any other dereliction or act which in the judgment of the Executive Judge constitutes good cause for revocation of commission or imposition of administrative sanction.
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(5) In either case, the aggrieved party may appeal the decision to the Supreme Court for review. Pending the appeal, an order imposing disciplinary sanctions shall be immediately executory, unless otherwise ordered by the Supreme Court. (d) The Executive Judge may motu proprio initiate administrative proceedings against a notary public, subject to the procedures prescribed in paragraph (c) above and impose the appropriate administrative sanctions on the grounds mentioned in the preceding paragraphs (a) and (b).
COMPETENT EVIDENCE OF IDENTITY Competent Evidence of Identity. - refers to the identification of an individual based on: (1) At least one current identification document issued by an official agency bearing the photograph and signature of the individual; or (2) The oath or affirmation of: (a) One credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, (b) Two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification. Notaries public must observe utmost care in complying with formalities intended to ensure the integrity of the notarized document and the act it embodies. In this case, the respondent violated the Rules on Notarial Practice when he notarized three documents presented to him by a complainant whose identity is not personally known to him and yet he did not require proof of identity from the said person. [Gonzales v. Padiernos (2008)] A lawyer commissioned as notary public is mandated to subscribe to the sacred duties appertaining to his office, such duties being dictated by public policy and impressed with public interest. Faithful observance and utmost respect of the legal solemnity of an oath in an acknowledgment or jurat is sacrosanct. [Maligsa v. Catanting (1997)] SANCTIONS RULE XI Sec. 1. Revocation and Administrative Sanctions. – xxx (c) Upon verified complaint by an interested, affected or aggrieved person, the notary public shall (1) be required to file a verified answer to the complaint. (2) If the answer of the notary public is not satisfactory, the Executive Judge shall conduct a summary hearing. (3) If the allegations of the complaint are not proven, the complaint shall be dismissed. (4) If the charges are duly established, the Executive Judge shall impose the appropriate administrative sanctions.
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Rules on Judicial Ethics
(1) New Code of Judicial Conduct for the Philippine Judiciary (Bangalore Draft) (2) Code of Judicial Conduct
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Canon 1. Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.
JUDICIAL ETHICS Branch of moral science which treats of the right and proper conduct to be observed by all judges and magistrates in trying and deciding controversies brought to them for adjudication which conduct must be demonstrative of impartiality, integrity, competence, independence and freedom from improprieties.
MEMORY AID FOR SECTIONS UNDER CANON 1:
(a) Independent judicial function (Sec. 1) (b) Outside pressure (Sec. 2) (c) Influencing outcome of litigation (Sec. 3) (d) Influence on judicial conduct (Sec. 4) (e) Independence from executive and legislative (Sec. 5) (f) Independence from society and particular parties (Sec. 6) (g) Safeguards for judicial independence (Sec. 7) (h) Promote Public confidence (Sec. 8)
JUDGE A public officer who, by virtue of his office, is clothed with judicial authority, a public officer lawfully appointed to decide litigated questions in accordance with law. DE JURE JUDGE One who is exercising the office of judge as a matter of right; an officer of a court who has been duly and legally appointed, qualified and whose term has not expired.
INDEPENDENT JUDICIAL FUNCTION
Sec. 1 Judges shall exercise the judicial function independently on the basis of their assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influence, inducement, pressure, threat or interference, direct or indirect, from any quarter or for any reason.
DE FACTO JUDGE An officer who is not fully invested with all the powers and duties conceded to judges, but is exercising the office of a judge under some color of right.
A judge found defendants guilty beyond reasonable doubt of the crime of Rape with Homicide. However, he sentenced the accused with reclusion perpetua instead of the death, as unequivocally required by RA 7659. A court of law is no place for a protracted debate on the morality or propriety of the sentence, where the law itself provides for the sentence of death as a penalty in specific and well-defined instances. [People v. Veneracion (1995)]
QUALIFICATIONS OF SC MEMBERS (a) Natural born citizen (b) At least 40 years of age (c) Must have been for at least 15 years a judge of a lower court or engaged in the practice of law [Sec. 7 (1), Art. VIII, 1987 Constitution] QUALIFICATIONS OF RTC JUDGES (a) Filipino citizenship (natural born or naturalized) (b) At least 35 years of age (c) For at least 10 years has been engaged in the practice of law in the Philippines or has held public office requiring admission to the practice of law as an indispensable requisite
Mass media has its duty to fearlessly but faithfully inform the public about events and persons. However, when a case has received wide and sensational publicity, the trial court should be doubly careful not only to be fair and impartial but also to give the appearance of complete objectivity in its handling of the case. [Go v. CA, 206 SCRA 165]
QUALIFICATIONS OF MTC JUDGES (a) Filipino citizenship (natural born or naturalized) (b) At least 30 years of age; (c) For at least five years has been engaged in the practice of law in the Philippines or has held public office requiring admission to the practice of law as an indispensable requisite.
Sec. 2. In performing judicial duties, Judges shall be independent from judicial colleagues in respect of decisions which the judge is obliged to make independently. The discretion of the Court to grant bail must be based on the Court’s determination as to whether or not the evidence of guilt is strong.
NEW CODE OF JUDICIAL CONDUCT (BANGALORE DRAFT) Independence Integrity Impartiality Propriety Equality Competence and Diligence
This discretion may be exercised only after the evidence has been submitted at the summary hearing conducted pursuant to Sec. 7 of Rule 114 of the Rules. Respondent’s admission that he granted bail to an accused upon the request of a Congressman, despite his belief that the evidence of guilt against said is strong, is indeed reprehensible. [Tahil v. Eisma (1975)]
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INDEPENDENCE FROM SOCIETY AND PARTICULAR PARTIES INFLUENCING OUTCOME OF LITIGATION
Sec. 6. Judges shall be independent in relation to society in general and in relation to the particular parties to a dispute which he or she has to adjudicate.
Sec. 3. Judges shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court or administrative agency.
[Respondent’s] act of sending a member of his staff to talk with complainant and show copies of his draft decisions, and his act of meeting with litigants outside the office premises beyond office hours violate the standard of judicial conduct required to be observed by members of the Bench. [Tan v. Rosete (2004)]
Interference by members of the bench in pending suits with the purpose of influencing the course or the result of the litigation subvert the independence of the judiciary. [Sabitsana, Jr. v. Villamor, 202 SCRA 445 (1991)] INFLUENCE ON JUDICIAL CONDUCT
SAFEGUARDS FOR JUDICIAL INDEPENDENCE
Sec. 4. Judges shall not allow family, social or other relationships to influence judicial conduct or judgment. The prestige of judicial office shall not be used or lent to advance the private interests of others, nor convey or permit others to convey the impression that they are in a special position to influence the judge.
Sec. 7. Judges shall encourage and uphold safeguards for the discharge of judicial duties in order to maintain and enhance the institutional and operational independence of the judiciary. The Code of Judicial Conduct mandates judges to administer justice without delay and directs every judge to dispose of the court’s business promptly within the period prescribed by the law and the rules… Delay ultimately affects the image of the judiciary. Failure to comply with the mandate of the Constitution and of the Code of Judicial Conduct constitutes serious misconduct, which is detrimental to the honor and integrity of a judicial office. Inability to decide a case despite the ample time prescribed is inexcusable, constitutes gross inefficiency, and warrants administrative sanction of the defaulting judge. [Salud v. Alumbres, (2003)]
“Judge’s family” includes a judge’s spouse, son, daughter, son-in-law, daughter-in-law, and any other relative by consanguinity or affinity within the sixth civil degree, or person who is a companion or employee of the judge and who lives in the judge’s household. [Definitions, Bangalore Draft] Constant company with a lawyer tends to breed intimacy and camaraderie to the point that favors in the future may be asked from respondent judge which he may find hard to resist. The actuation of respondent Judge of eating and drinking in public places with a lawyer who has pending cases in his sala may well arouse suspicion in the public mind, thus tending to erode the trust of the litigants in the impartiality of the judge. [Padilla v. Zantua (1994)]
PROMOTE PUBLIC CONFIDENCE
Sec. 8. Judges shall exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary which is fundamental to the maintenance of judicial independence.
INDEPENDENCE FROM EXECUTIVE AND LEGISLATIVE
Sec. 5. Judges shall not only be free from inappropriate connections with and influence by the executive and legislative branches of government but must also appear to be free therefrom to a reasonable observer.
[A judge] should always be imbued with a high sense of duty and responsibility in the discharge of his obligation to promptly and properly administer justice. He must view himself as a priest for the administration of justice is akin to a religious crusade. [Dimatulac et al v. Villon, (1998)]
While it is true that Justice Sabio could not have possibly known prior to his brother's call that his brother intended to speak to him about the Meralco-GSIS case, the fact remains that Justice Sabio continued to entertain a call from his brother, who also happens to be an officer of the executive branch, despite realizing that the conversation was going to involve a pending case. Justice Sabio asks the Court if he should have immediately slammed the phone on his brother. Certainly, such boorish behavior is not required. However, as soon as Justice Sabio realized that his brother intended to discuss a case pending before him or in his division, Justice Sabio should have respectfully but firmly ended the discussion….That Justice Sabio did not do as his brother asked is of no moment. Section 5, Canon 1 of the Code of Judicial Conduct maintains such a high bar of ethical conduct that actual influence is not a prerequisite before a violation is deemed committed. If a magistrate's actions allow even just the appearance of being influenced, it is deemed a violation. [Re: Letter of Presiding Justice Conrado M. Vasquez, Jr. A.M. No. 08-8-11-CA]
INTEGRITY Canon 2. Integrity is essential not only to the proper discharge of the judicial office but also to the personal demeanor of judges. MEMORY AID FOR SECTIONS UNDER CANON 2
(a) Conduct above reproach (Sec. 1) (b) Reaffirm people’s faith (Sec. 2) (c) Disciplinary action (Sec. 3) While the 1989 Code grouped the values of integrity and independence together, the New Code of Judicial Conduct has separated them, emphasizing the need for judges to maintain a life of personal and professional integrity in order to properly carry out their judicial functions.
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[A] judge's official conduct and his behavior in the performance of judicial duties should be free from the appearance of impropriety and must be beyond reproach. One who occupies an exalted position in the administration of justice must pay a high price for the honor bestowed upon him, for his private as well as his official conduct must at all times be free from the appearance of impropriety. Because appearance is as important as reality in the performance of judicial functions, like Caesar's wife, a judge must not only be pure but also beyond suspicion. A judge has the duty to not only render a just and impartial decision, but also render it in such a manner as to be free from any suspicion as to its fairness and impartiality, and also as to the judge's integrity. * * * It is obvious, therefore, that while judges should possess proficiency in law in order that they can competently construe and enforce the law, it is more important that they should act and behave in such a manner that the parties before them should have confidence in their impartiality. [Sibayan-Joaquin v. Javellana (2001]
CONDUCT ABOVE REPROACH
Sec. 1. Judges shall ensure that not only is their conduct above reproach, but that it is perceived to be so in the view of a reasonable observer. [W]e have repeatedly admonished our judges to adhere to the highest tenets of judicial conduct. They must be the embodiment of competence, integrity and independence. The exacting standards of conduct demanded from judges are designed to promote public confidence in the integrity and impartiality of the judiciary because the people's confidence in the judicial system is founded not only on the magnitude of legal knowledge and the diligence of the members of the bench, but also on the highest standard of integrity and moral uprightness they are expected to possess. When a judge becomes the transgressor of any law which he is sworn to apply, he places his office in disrepute, encourages disrespect for the law and impairs public confidence in the integrity and impartiality of the judiciary itself. It is therefore paramount that a judge's personal behavior both in the performance of his duties and daily life, be free from any appearance of impropriety as to be beyond reproach. [Tan v. Rosete (2004)]
A judge must not only be honest but also appear to be so; not only be a good judge, but also a good person. [Dawa v. De Asa (1998)]
Judges have been penalized for: (a) Demanding and/or accepting bribes (b) Fraternizing with litigants and/or lawyers (c) Altering orders (d) Delay in rendering (e) Sexual harassment of employees (f) Ignorance of the law (g) Keeping and/or flaunting a mistress (h) Inebriated behavior (i) Frequenting casinos and cock fights (j) Incompetence (k) Conducting hearings in their residence (l) Using intemperate language
A judge must be free of a whiff of impropriety not only with respect to his performance of his judicial duties, but also to his behavior outside his sala and as a private individual. There is no dichotomy of morality: a public official is also judged by his private morals. [Castillo v. Calanog (1991)] DISCIPLINARY ACTION
Sec. 3. Judges should take or initiate appropriate disciplinary measures against lawyers or court personnel for unprofessional conduct of which the judge may have become aware.
Ignorance of the law is a mark of incompetence When the inefficiency springs from a failure to consider so basic and elemental a rule, a law or principle in the discharge of his duties, a judge is either too incompetent and undeserving of the position and title he holds, or he is too vicious that the oversight or omission was deliberately done in bad faith and in grave abuse of judicial authority. In both instances, the judge's dismissal is in order. [Macalintal v. Teh (1997)]
Oftentimes…leniency provides the court employees the opportunity to commit minor transgressions of the laws and slight breaches of official duty ultimately leading to vicious delinquencies. The respondent judge should constantly keep a watchful eye on the conduct of his employees. He should realize that big fires start small. His constant scrutiny of the behavior of his employees would deter any abuse on the part of the latter in the exercise of their duties. Then, his subordinates would check that any misdemeanor will not remain unchecked. The slightest semblance of impropriety on the part of the employees of the court in the performance of their official duties stirs ripples of public suspicion and public distrust of the judicial administrators. The slightest breach of duty by and the slightest irregularity in the conduct of court officers and employees detract from the dignity of the courts and erode the faith of the people in the judiciary. [Buenaventura v. Benedicto (1971)]
REAFFIRM PEOPLE’S FAITH
Sec. 2. The behavior and conduct of judges must reaffirm the people's faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done. "Justice must not merely be done but must also be seen to be done” This phrase emphasizes the importance of the public perception of the judiciary, not because the judicial department intends to be influenced thereby, but because it is essential that public confidence is always reposed in the judicial systems and processes.
IMPARTIALITY Canon 3. Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.
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MEMORY AID FOR SECTIONS UNDER CANON 3
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vulnerable to suspicions of favoritism. [Montemayor v. Bermejo, Jr. (2004)]
(a) (b) (c) (d)
Judicial duties free from bias (Sec. 1) Promote confidence, impartiality (Sec. 2) Minimize instances of disqualification (Sec. 3) Public comments; pending and impending case (Sec. 4) (e) Disqualifications (Sec. 5) (f) Remittal of disqualifications (Sec.6)
MINIMIZE INSTANCES OF DISQUALIFICATIONS
Sec. 3. Judges shall, so far as is reasonable, so conduct themselves as to minimize the occasions on which it will be necessary for them to be disqualified from hearing or deciding cases.
JUDICIAL DUTIES FREE FROM BIAS
Judges may, in their exercise of sound discretion, restrict themselves voluntarily from sitting in a case, but such a decision should be based on good, sound or ethical grounds, or for just and valid reasons. It is not enough that a party casts some tenuous allegations of partiality at the judge. No less than imperative is that it is the judge's sacred duty to administer justice without fear or favor.
Sec. 1. Judges shall perform their judicial duties without favor, bias or prejudice. To sustain a claim of bias or prejudice, the resulting opinion must be based upon an extrajudicial source: that is, some influence other than the facts and law presented in the courtroom. In the United States, this is known as the Extra-Judicial Source Rule.
The majority view is that the rule of disqualification of judges must yield to demands of necessity. Simply stated, the rule of necessity means that a judge is not disqualified to sit in a case if there is no other judge available to hear and decide the case. For example, members of the Supreme Court were entitled to adjudicate the validity of a statue placing a limit of 5 percent in the costs of living increase for judges, where it was apparent that all state judges had at least an involuntarily financial interest in the case… Actual disqualification of a member of a court of last resort will not excuse the member from performing his official duty if failure to do so would result in a denial of a litigant's constitutional right to have a question, properly presented to the court, adjudicated. In other words, when all judges would be disqualified, disqualification will not be permitted to destroy the only tribunal with power in the premises. The doctrine operates on the principle that a basic judge is better than no judge at all. Under such circumstances, it is the duty of the disqualified judge to hear and decide the controversy, however disagreeable it may be. [Parayno v. Meneses, (1994)]
Because allegations of bias are quite serious, the person bringing the allegation must prove bias sufficient to require inhibition (also called recusal or disqualification) with clear and convincing evidence. Bare allegations of partiality and prejudgment will not suffice. [Dimo Realty & Dev. Inc. v. Dimaculangan (2004)] A judge's conduct must be clearly indicative of arbitrariness and prejudice before it can be stigmatized as biased and partial. [Cruz v. Iturralde, (2003)] PROMOTE CONFIDENCE, IMPARTIALITY
Sec. 2. Judges shall ensure that his or her conduct both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary. This provision is designed to maintain and improve public confidence in the entire judiciary as an impartial dispenser of justice.
PUBLIC COMMENTS; PENDING AND IMPENDING CASE
Sec. 4. Judges shall not knowingly, while a proceeding is before or could come before them, make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process. Nor shall judges make any comment in public or otherwise that might affect the fair trial of any person or issue.
The intendment of the above provision of the Rules of Court is not difficult to find. Its rationale is predicated in the long standing precept that no judge should handle a case in which he might be perceived, rightly or wrongly, to be susceptible to bias and impartiality. His judgment must not be tainted by even the slightest suspicion of improbity or preconceived interest. The rule is aimed at preserving at all times the faith and confidence in courts of justice by any party to the litigation. [Urbanes, Jr. v.CA (2001)]
This Section warns judges against making any comment that might reasonably be expected to affect the outcome of the proceedings before them or "impair the manifest fairness of the process.”
A judge should behave at all times in a way that promotes public confidence in the integrity and impartiality of the judiciary. The appearance of bias or prejudice can be as damaging to public confidence and the administration of justice as actual bias or prejudice. [Montemayor v. Bermejo, Jr. (2004)]
Judges should avoid side remarks, hasty conclusions, loose statements or gratuitous utterances that suggest they are prejudging a case. Judges should be aware that the media might consider them a good and credible source of opinion or ideas, and therefore should refrain from making any comment on a pending case. Not only is there danger of being misquoted, but also of compromising the rights of the litigants in the case.
In disposing of a criminal case, a judge should avoid appearing like an advocate for either party. It is also improper for the judge to push actively for amicable settlement against the wishes of the complainant. A judge’s unwelcome persistence makes the judge
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The Supreme Court has recently held that judges and justices are not disqualified from participating in a case simply because they have written legal articles on the law involved in the case. [Chavez v. Public Estates Authority (2003)]
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A decision to disqualify himself is not conclusive and his competency may be determined on application for mandamus to compel him to act. Judge’s decision to continue hearing a case in which he is not legally prohibited from trying notwithstanding challenge to his objectivity may not constitute reversible error.
Sec. 5. Judges shall disqualify themselves from participating in any proceedings in which they are unable to decide the matter impartially or in which it may appear to a reasonable observer that they are unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where: (a) The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings; (b) The judge previously served as a lawyer or was a material witness in the matter in controversy; (c) The judge, or a member of his or her family, has an economic interest in the outcome of the matter in controversy; (d) The judge served as executor, administrator, guardian, trustee or lawyer in the case or matter in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein; (e) The judge's ruling in a lower court is the subject of review; (f) The judge is related by consanguinity or affinity to a party litigant within the sixth civil degree or to counsel within the fourth civil degree; or (g) The judge knows that his or her spouse or child has a financial interest, as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceedings
The filing of an administrative case against a judge does not disqualify him from hearing a case. The court has to be shown other than the filing of administrative complaint, act or conduct of judge indicative of arbitrariness or prejudice before the latter being branded as the stigma of being biased or partial. [Lorenzo v. Marquez (1988)] Disqualification
Specific and Exclusive
No specific grounds BUT there is a broad basis for such, i.e. good, sound ethical grounds
Role of the Judicial Order Judicial officer has no discretion to sit or try the case
The matter is left to the sound discretion of the judge
REMITTAL OF DISQUALIFICATIONS
Sec. 6. A judge disqualified as stated above may, instead of withdrawing from the proceeding, disclose on the records the basis of disqualification. If based on such disclosure, the parties and lawyers independently of the judge's participation, all agree in writing that the reason for the inhibition is immaterial or unsubstantial, the judge may then participate in the proceeding. The agreement signed by all parties and lawyers shall be incorporated in the record of the proceedings.
Grounds for Disqualification and Inhibition of Judges under the Rules of Court Mandatory or Compulsory Disqualification [Rule 131, ROC] (a) He or his wife or his child is pecuniarily interested as heir, legatee, creditor or otherwise; (b) Relation to either party within the sixth degree of consanguinity or affinity or to counsel within the 4th civil degree (c) When he has been an executor, guardian, administrator, trustee or counsel; (d) When he has presided in an inferior court where his ruling or decision is subject to review.
The decision to continue hearing the case, despite the existence of reasons for disqualification should be: (a) coupled with a bona fide disclosure to the parties-inlitigation; and (b) subject to express acceptance by all the parties of the cited reason as not material or substantial. Absent such agreement, the judge may not continue to hear the case. PROPRIETY Canon 4. Propriety and the appearance of propriety are essential to the performance of all the activities of a. Judge.
Voluntary Inhibition A judge may, in the exercise of his sound discretion disqualify himself, for just and valid reasons other than those mentioned above. [Rule 137, Section 1]
MEMORY AID FOR SECTIONS UNDER CANON 4
(a) (b) (c) (d)
Avoidance of Impropriety (Sec. 1) Acceptance of Personal Restrictions (Sec. 2) Avoidance of Controversy (Sec. 3) Not participate in cases where he may be impartial (Sec. 4) (e) Not to allow the use of his residence by other lawyers (Sec. 5) (f) Freedom of Expression (Sec. 6)
This leaves the discretion to the judge to decide for himself questions as to whether he will desist from sitting in case for other just and valid reasons with only his conscience to guide him, unless he cannot discern for himself his inability to meet the test of the cold neutrality required of him, in which event the appellate court will see to it that he disqualifies himself.
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(g) Be informed of his financial interests (Sec. 7) (h) Influence of Judicial Conduct (Sec. 8) (i) Confidential Information (Sec. 9) (i) Engage in other activities (Sec. 10) (k) Practice of Profession (Sec. 11) (l) Form associations (Sec. 12) (m) Gifts, Requests, Loans (Sec. 13) (n) Gifts, Requests, Loans by staff (Sec. 14) (o) Permissible tokens and awards (Sec. 15)
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While judges are only human, their acceptance of the judicial position means that more is expected from them than from ordinary citizens, as their acts, both public and private, color the public’s perception of the judiciary as a whole. [Re: Anonymous Complaint Against Judge Edmundo T. Acuña A.M. No RTJ-04-189, (2005)] Dignified conduct is best described as conduct befitting men and women possessed of temperance and respect for the law and for others.
AVOIDANCE OF IMPROPRIETY AVOIDANCE OF CONTROVERSY
Sec. 1. Judges shall avoid impropriety and the appearance of impropriety in all of their activities.
Sec. 3. Judges shall, in their personal relations with individual members of the legal profession who practice regularly in their court, avoid situations which might reasonably give rise to the suspicion or appearance of favoritism or partiality.
The requirement that judges be free from impropriety or any appearance thereof is closely related to the maintenance of integrity and promotion of confidence in the judiciary.
Essential to the avoidance of impropriety and its appearance is the maintenance of cold neutrality and impartiality. This section is squarely directed at bolstering this principle as it requires judges to scrupulously guard against any act that may be construed as an expression of bias in favor of a litigant.
By prohibiting not only impropriety but even the appearance of impropriety, the Code recognizes that even acts that are not per se improper can nevertheless be perceived by the larger community as such. This is so because the community holds judges to higher standards of integrity and ethical conduct than attorneys and other persons not invested with public trust.
A judge is commanded at all times to be mindful of the high calling of a dispassionate and impartial arbiter expected at all times to be a “cerebral man who deliberately holds in check the tug and pull of purely personal preferences which he shares with his fellow mortals. [Office of the Court Administrator v. Paderanga, A.M. No. RTJ-01-1660 (2005)]
Acts done by a judge which are not illegal but are still violations of the Code of Judicial Ethics (a) Hearing cases on a day when the judge was supposed to be on official leave (b) Hearing a motion while on vacation, in the judge’s room dressed in a polo jacket (c) Photos showing the judge and one of his subordinates coming out of a hotel together, despite absence of clear evidence of sexual congress (d) Making a joking remark to a litigant suggesting that the latter prove he harbored no ill feelings towards the judge (e) Making a comment after conducting a marriage ceremony that the bride and groom should sexually satisfy each other so that they will not go astray
NOT PARTICIPATE IN CASES WHERE HE MAY BE IMPARTIAL
Sec. 4. Judges shall not participate in the determination of a case in which any member of their family represents a litigant or is associated in any manner with the case. This rule rests on the principle that no judge should preside in a case in which the judge is not wholly free, disinterested, impartial and independent. A judge has both the duty of rendering a just decision and the duty of doing it in a manner completely free from suspicion as to fairness and integrity. The purpose is to preserve the people’s faith and confidence in the courts of justice. (PhilJa)
Whatever the motive may have been, the violent action of the respondent in a public place constitutes serious misconduct and the resultant outrage of the community [Arban v. Borja (1989)]
NOT ALLOW THE USE OF HIS RESIDENCE BY OTHER LAWYERS
Sec. 5. Judges shall not allow the use of their residence by a member of the legal profession to receive clients of the latter or of other members of the legal profession.
It was highly improper for a judge to have wielded a highpowered firearm in public and besieged the house of a perceived defamer of character and honor in warlike fashion and berated the object of his ire, with his firearm aimed at the victim [Saburnido v. Madrono (2001)]
The rationale for this section is the same as that of Section 3.
ACCEPTANCE OF PERSONAL RESTRICTIONS FREEDOM OF EXPRESSION
Sec. 2. As a subject of constant public scrutiny, judges must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In particular, judges shall conduct themselves in a way that is consistent with the dignity of the judicial office.
Sec. 6. Judges, like any other citizen, are entitled to freedom of expression, belief, association and assembly, but in exercising such rights, they shall always conduct themselves in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.
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While judges are not expected to live a hermit-like existence or cease functioning as citizens of the Republic, they should remember that they do not disrobe themselves of their judicial office upon leaving their salas. In the exercise of their civil liberties, they should be circumspect and ever mindful that their continuing commitment to upholding the judiciary and its values places upon them certain implied restraints to their freedom. [Sison v. Caoibes, Jr. (2004)]
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judge. [Centrum Agri-Business Realty Corp. v. KatalbasMoscardon (1995)] A judge's act of personally furnishing a party copies of orders issued, without passing them through the court docket, was considered to be highly irregular, giving rise to the suspicion that the judge was partial to one of the parties in the case. [Co v. Calimag (2000)] It is improper for a judge to allow his wife to have access to court records which are necessarily confidential, as this practice may convey the impression that she is the one who can influence the judge's official functions. [Gordon v. Lilagan (2001)]
A judge was admonished for the appearance of engaging in partisan politics when he participated in a political rally sponsored by one party, even though he only explained the mechanics of block voting to the audience. [Macias v. Arula (1982)]
Where respondent appellate justice announced on television that he lost a confidential draft of an order and publicly asked the National Bureau of Investigation to investigate, he was held by the Supreme Court to have been guilty of conduct unbecoming a judge. [In Re Justice Anacleto Badoy (2003)]
BE INFORMED OF HIS FINANCIAL INTERESTS
Sec. 7. Judges shall inform themselves about their personal fiduciary and financial interests and shall make reasonable efforts to be informed about the financial interests of members of their family.
ENGAGE IN OTHER ACTIVITIES
This section of the New Code of Judicial Conduct should be read in conjunction with Section 7 of the Republic Act 6713, which prohibits certain personal fiduciary and financial conflicts.
Sec. 10. Subject to the proper performance of judicial duties, judges may (a) Write, lecture, teach and participate in activities concerning the law, the legal system, the administration of justice or related matters; (b) Appear at a public hearing before an official body concerned with matters relating to the law, the legal system, the administration of justice or related matters; (c) Engage in other activities if such activities do not detract from the dignity of the judicial office or otherwise interfere with the performance of judicial duties.
“[A] judge shall refrain from financial and business dealings that tend to reflect adversely on the court's impartiality, interfere with the proper performance of judicial activities, or increase involvement with lawyers or persons likely to come before the court.” [Catbagan v. Barte (2005)] INFLUENCE OF JUDICIAL CONDUCT
Sec. 8. Judges shall not use or lend the prestige of the judicial office to advance their private interests, or those of a member of their family or of anyone else, nor shall they convey or permit others to convey the impression that anyone is in a special position improperly to influence them in the performance of judicial duties.
This section allows the judge to participate in legal academia and public discourse on legal matters with the proviso that there shall be no interference in the performance of the judge’s primary functions with respect to his or her jurisdiction. In dealing with the media, the Philippine Judicial Academy suggests that a judge or court should avoid acrimonious debate with reporters and the public, for a knee jerk reaction from the court or judge may only provoke negative followup reports and articles.
This rule has two parts: (a) A judge may not use judicial office to advance private interests (b) A judge may not give the impression that he or she can be influenced to use the judicial office to advance the private interests of others
This section’s tolerance of judicially-related activities is limited by Section 12, Article VIII of the Constitution, which prohibits judges from being “designated to any agency performing quasi judicial or administrative functions.”
Ticket-fixing Misconduct in which judges impermissibly take advantage of their position to avoid traffic violations.
This declaration does not mean that RTC judges should adopt an attitude of monastic insensibility or unbecoming indifference to the Province/City Committee on Justice. As incumbent RTC judges, they form part of the structure of government…Even as non-members…RTC judges should render assistance to said Committees to help promote the laudable purposes for which they exist, but only when such assistance may be reasonably incidental to the fulfillment of their judicial duties. [In Re: Designation of Judge Rodolfo U. Manzano, (1988)]
Sec. 9. Confidential information acquired by judges in their judicial capacity shall not be used or disclosed for any other purpose related to their judicial duties. When a judge released a draft of her decision to a party, that conduct was found to be not just a simple breach of confidentiality but a scheme to make the party “negotiate” for increases in the monetary awards to be given by the
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Sec. 15. Subject to law and to any legal requirements of public disclosure, judges may receive a token gift, award or benefit as appropriate to the occasion on which it is made, provided that such gift, award or benefit might not be reasonably perceived as intended to influence the judge in the performance of official duties or otherwise give rise to an appearance of partiality.
PRACTICE OF PROFESSION
Sec. 11. Judges shall not practice law whilst the holder of judicial office. This prohibition is based on the inherent incompatibility of the rights, duties and functions of the office of an attorney with the powers, duties and functions of a judge. [Carual v. Brusola (1999)]
General Rule: Judges and members of their families cannot accept gifts, etc.
While municipal judges can administer oaths or execute certificates on matters related to their official functions, they cannot notarize private documents. [Tabao v. Asis (1996)]
Exception: Subject to legal requirements like public disclosure, may accept gifts provided that it might not reasonably be perceived as intended to influence judge.
However, it should be noted that judges assigned to municipalities and circuits may act as notaries public provided that: (1) all notarial fees charged be to the government’s account, and (2) certification be made in the notarial documents attesting to the lack of lawyers or notary in the municipality or circuit. [Doughlas v. Lopez Jr. (2000)]
Section 7(d) of R.A. 6713 allows the following: (a) Gift of nominal value tendered and received as a souvenir or mark of courtesy (b) Scholarship or fellowship grant or medical treatment (c) Travel grants or expenses for travel taking place entirely outside the Philippines (such as allowances, transportation, food and lodging) of more than nominal value if such acceptance is appropriate or consistent with the interest of the Philippines, and permitted by the head office, branch or agency to which the judge belongs.
Sec. 12. Judges may form or join associations of judges or participate in other organizations representing the interests of judges.
This rule also recognizes the difference between membership in associations of judges and membership in associations of other legal professionals. While attendance at lavish events hosted by lawyers might create an appearance of impropriety, participation in judges-only organizations does not. (PhilJa)
Canon 5. Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office. MEMORY AID FOR SECTIONS UNDER CANON 5
(a) (b) (c) (d) (e)
GIFTS, REQUESTS, LOANS
Sec. 13. Judges and members of their families shall neither ask for, nor accept, any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done by him or her in connection with the performance of judicial duties.
Understand the diversity in society (Sec. 1) Not to manifest bias or prejudice (Sec. 2) Not to differentiate (Sec. 3) Not to influence staff (Sec. 4) Attitude to parties appearing in court (Sec. 5)
This is a new Canon not found in the previous two Philippine Codes of Judicial Conduct. It expands the measures to promote equality required by international human rights agreements. Those agreements advocate a universal application of law and non-discrimination between the sexes. (PhilJa)
This section should be read in conjunction with Section 7(d) of R.A. 6713 which prohibits public officials from soliciting or accepting gifts. Receiving money from a party litigant is the kind of gross and flaunting misconduct on the part of the judge, who is charged with the responsibility of administering the law and rendering justice. [Ompoc v. Torre (1989)]
UNDERSTAND THE DIVERSITY IN SOCIETY
Sec. 1. Judges shall be aware of and understand diversity in society and differences arising from various sources, including, but not limited to, race, color, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status, and other like causes.
GIFTS, REQUESTS, LOANS BY STAFF
Sec. 14. Judges shall not knowingly permit court staff or others subject to their influence, direction or authority, to ask for, or accept, any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done in connection with their duties or functions.
To render substantial justice and maintain public confidence in the judicial system, judges are expected to be aware of the diversity in society that results from an increased worldwide exchange of people and ideas. Judges must be able to avoid the infiltration of preconceptions into their decisions. They should be mindful of the various international instruments and treaties ratified by the Philippines, which affirm the equality of all human beings
This section complements the previous section and assures that what the judge cannot do directly, may not be done indirectly through the use of employees or staff members. PERMISSIBLE TOKENS AND AWARDS
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and establish a norm of non-discrimination without distinction as to race, sex, language or religion.
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Rights and Obligations of Witnesses [Rule 132, Section 3 of the Revised Rules of Court]: (a) To be protected from irrelevant, improper or insulting questions and from a harsh or insulting demeanor; (b) Not to be detained longer than the interests of justice require (c) Not to be examined except as to matters pertinent to the issues before the court; (d) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; (e) Not to give an answer which will tend to degrade the witness’ reputation, but a witness must answer the fact of any previous final conviction for a criminal offense.
NOT TO MANIFEST BIAS OR PREJUDICE
Sec. 2. Judges shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice towards any person or group on irrelevant grounds. Rule 137, Sec. 1 of the Rules of Court expressly states that no judge shall sit in any case which he has been counsel (for a party) without the written consent of all parties in interest, signed by them and entered upon the record. The prohibition is not limited to cases in which a judge hears the evidence but includes as well cases where he acts by resolving motions, issuing orders and the like. [In Re Judge Rojas (1998)]
Women appearing as witnesses or litigants have found themselves subjected to inappropriate, overly familiar and demeaning forms of address, comments on their personal appearance, sexist remarks, “jokes” and unwelcome advances. As courts are expected to ensure equality, any lawyer who makes an insensitive or demeaning comment in court should be admonished. (PhilJa)
NOT TO DIFFERENTIATE
Sec. 3. Judges shall carry out judicial duties with appropriate consideration for all persons, such as the parties, witnesses, lawyers, court staff and judicial colleagues, without differentiation on any irrelevant ground, immaterial to the proper performance of such duties.
The action of the judge in seizing the witness, Alberto Angel, by the shoulder and turning him about was unwarranted and an interference with that freedom from unlawful personal violence to which every witness is entitled while giving testimony in a court of justice. Against such conduct the appellant had the right to protest and to demand that the incident be made a matter of record. That he did so was not contempt, providing protest and demand were respectfully made and with due regard for the dignity of the court. [In Re: Aguas (1901)]
This provision is taken from Canons 1, 9 and 10 of the Canons of Judicial Ethics and Rule 3.04, Canon 3 of the 1989 Code of Judicial Conduct. NOT TO INFLUENCE STAFF
Sec. 4. Judges shall not knowingly permit court staff or others subject to his or her influence, direction or control to differentiate between persons concerned, in a matter before the judge, on any irrelevant ground.
COMPETENCE AND DILIGENCE Canon 6. Competence and diligence are prerequisites to the due performance of judicial office.
Judges should organize their courts to ensure the prompt and convenient dispatch of business and should not tolerate misconduct by clerks, sheriffs and other assistants who are sometimes prone to expect favors or special treatment due to their professional relationship with the judge. [Canons of Judicial Ethics, 8; 1989 Code of Judicial Conduct, Canon 3, Rule 3.09]
MEMORY AID FOR SECTIONS UNDER CANON 6
(a) (b) (c) (d) (e) (f) (g)
ATTITUDE TO PARTIES APPEARING IN COURT
Sec. 5. Judges shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on irrelevant grounds, except such as are legally relevant to an issue in proceedings and may be the subject of legitimate advocacy.
Duties take precedence (Sec. 1) Perform administrative duties (Sec. 2) Maintain professional competence (Sec. 3) Be informed about the law (Sec. 4) Prompt decision making (Sec. 5) Maintain order in proceedings (Sec. 6) Not to engage in conduct contrary to duties (Sec. 7)
Judicial office demands competence and diligence. “The administration of justice is a sacred task ... and [u]pon assumption to office, a judge ceases to be an ordinary mortal. He becomes the visible representation of the law and more importantly, of justice.” [Office of the Court Administrator v. Gines (1993)]
Judges should conduct proceedings in court with dignity and in a manner that reflects the importance and seriousness of proceedings. They should maintain order and proper decorum in the court. [1989 Code of Judicial Conduct, Canon 3, Rule 3.03]
DUTIES TAKE PRECEDENCE
Sec. 1. The judicial duties of a judge take precedence over all other activities.
Judges have the duty to prevent lawyers from abusing witnesses with unfair treatment.
“Though a judge has a duty to not sit where disqualified, a judge has an equally strong duty not to recuse himself when the circumstances do not require recusal.” [ABA Annotated Model Code of Judicial Conduct (2004), Commentary, Canon 3B(1), citing Laird v. Tatum, (1972)]
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whether of civil, administrative, or criminal nature. It is only after the available judicial remedies have been exhausted and the appellate tribunals have spoken with finality that the door to an inquiry into his criminal, civil, or administrative liability may be said to have opened, or closed. [Maquiran v. Grageda (2005)]
PERFORM ADMINISTRATIVE DUTIES
Sec. 2. Judges shall devote their professional activity to judicial duties, which include not only the performance of judicial functions and responsibilities in court and the making of decisions, but also other tasks relevant to the judicial office or the court’s operations.
BE INFORMED ABOUT THE LAW
Sec. 4. Judges shall keep themselves informed about relevant developments of international law, including international conventions and other instruments establishing human rights norms.
In the instant case, respondent judge impeded the speedy disposition of cases by his successor on account of missing records of cases. This fact reflects an inefficient and disorderly system in the recording of cases assigned to his sala. Proper and efficient court management is as much the judge's responsibility for the Court personnel are not the guardians of a Judge's responsibilities. A judge is expected to ensure that the records of cases assigned to his sala are intact. There is no justification for missing records save fortuitous events. The loss of not one but eight records is indicative of gross misconduct and inexcusable negligence unbecoming of a judge. [Longboan v. Polig (1990)]
PROMPT DECISION MAKING
Sec. 5. Judges shall perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly and with reasonable promptness. The essence of the judicial function is expressed in Section 1, Rule 124 of the Revised Rules of Court which provides that “[j]ustice shall be impartially administered without unnecessary delay.” This principle permeates the whole system of judicature, and supports the legitimacy of the decrees of judicial tribunals.
MAINTAIN PROFESSIONAL COMPETENCE
Sec. 3. Judges shall take reasonable steps to maintain and enhance their knowledge, skills and personal qualities necessary for the proper performance of judicial duties, taking advantage for this purpose the training and other facilities which should be made available, under judicial control, to judges.
MAINTAIN ORDER IN PROCEEDINGS
Sec. 6. Judges shall maintain order and decorum in all proceedings before the court and be patient, dignified and courteous in relation to litigants, witnesses, lawyers and others with whom the judge deals in an official capacity. Judges shall require similar conduct of legal representatives, court staff and others subject to their influence, direction or control.
Judges are regarded as persons learned in the law and it is in part their masterful grasp of the law that sustains public trust in their work and in the confidence of the people and the legal profession in the administration of justice.
The respondent judge was guilty of committing acts unbecoming of a judge and abuse of authority when he shouted invectives and threw a chair at the complainant, resulting in wrist and other injuries to the complainant. [Briones v. Ante, Jr. (2002)]
Even in the remaining years of his stay in the judiciary, he should keep abreast with the changes in the law and with the latest decisions and precedents. Although a judge is nearing retirement, he should not relax in his study of the law and court decisions. [Abad v. Bleza (1986)]
The respondent judge was found guilty of serious misconduct and inefficiency by reason of habitual tardiness. He was fined and suspended for judicial indolence. [Yu-Asensi v. Villanueva (2000)]
Judges are not, however, expected to be infallible; not every error or irregularity committed by judges in the performance of official duties is subject to administrative sanction. In the absence of bad faith, fraud, dishonesty, or deliberate intent to do injustice, incorrect rulings do not constitute misconduct and may not give rise to a charge of gross ignorance of the law. [Cruz v. Iturralde (2003)]
NOT TO ENGAGE IN CONDUCT CONTRARY TO DUTIES
Sec. 7. Judges shall not engage in conduct incompatible with the diligent discharge of judicial duties.
To constitute gross ignorance of the law, an error or irregularity on the part of the judge in the application or interpretation of the law “must not only be contrary to existing law and jurisprudence but … motivated by bad faith, fraud, dishonesty and corruption.” [Duduaco v. Laquindanum (2005)]
A judge neglected his duty when he failed to exercise extra care in ensuring that records of the cases and official documents in his custody were intact. The Supreme Court reiterated that “judges must adopt a system of record management and organize their dockets in order to bolster the prompt and efficient dispatch of business. [Beso v. Daguman (2000)]
Now, the established doctrine and policy is that disciplinary proceedings and criminal actions against Judges are not complementary or suppletory of, nor a substitute for, these judicial remedies, whether ordinary or extraordinary. Resort to and exhaustion of these judicial remedies … are prerequisites for the taking of other measures against the persons of the judges concerned,
By issuing orders indefinitely postponing the hearing of election protest, the judge in De la Cruz v. Pascua manifested inefficiency in the disposition of an election protest case and thus overtly transgressed basic
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mandatory rules for expeditious resolution of cases. [De la Cruz v. Pascua (2001)]
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(a) January 16, 2012. The Senate, sitting as an impeachment court began the trial. (b) The prosecution dropped articles I, IV, V, VI, VII, VIII, leaving only Articles II and III as their grounds for impeachment. (c) May 29, 2012. The Senate found CJ Corona guilty under Article II of the Articles of impeachment for his failure to declare his true statements of assets, liabilities and net worth. After 20 senators voted in favor of impeachment under this ground, the Senate no longer voted under Article III. Three senators voted to acquit Corona on that ground.
Discipline of Members of the Judiciary MEMBERS OF THE SUPREME COURT IMPEACHMENT
Quantum of Evidence Used The impeachment is sui generis, it is neither purely political or criminal so it does not require proof beyond reasonable doubt. In the course of the impeachment trial, the senatorjudges expressed differing views. Some argued that it requires “clear and convincing proof,” while some argued that it needs “preponderance of evidence.”
1987 Constitution, Art. X, Section 2. The President, the VicePresident, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.
Yale professor Charles Black however wrote that “the Senate has traditionally left the choice of the applicable standard of proof to each individual senator.”
Ethical Lessons from Former Chief Justice Corona Overview of Chief Justice Corona’s impeachment December 12, 2011. The House of Representatives voted to impeach CJ Corona. They charged him with eight articles of impeachment alleging (1) betrayal of public trust; (2) graft and corruption; and (3) culpable violation of the Constitution
Public Proceedings All proceedings of the impeachment trial are public because of the national interest involved in the issue. The people through their representatives are to decide for the outcome of the impeachment. [Bag-ao] LOWER COURT JUDGES AND JUSTICES
Articles of Impeachment Filed by the House of Representatives Article I: Partiality and subservience in cases involving the Arroyo administration
1987 Constitution, Art. VIII, Section 11. The members of the Supreme Court and judges of lower courts shall hold office during a good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.
Article II: Failure to disclose to the public his Statement of Assets and Liabilities Article III: Flip-flopping decisions in final and executory cases, creating excessive entanglement with Former President Arroyo, and discussing with litigants regarding the cases pending before the Supreme Court
General Rule: A judge is not liable administratively, civilly or criminally when he acts within his power and jurisdiction.
Article IV: Irregularities in issuing a quo-ante order against the HoR in the impeachment of then Ombudsman Merceditas Gutierrez
This frees the judge from apprehension of personal consequences to himself and to preserve the integrity and independence of the judiciary.
Article V: Gerrymandering in the case of the 16-newly created cities and promotion of Dinagat into a province
Exception: Serious misconduct; inefficiency; gross and patent, or deliberate and malicious error; bad faith
Article VI: Improper investigation in the plagiarism case of Associate Justice Mariano del Castillo
Article VII: Granting a temporary restraining order to Former President Arroyo and husband Mike Arroyo after the DOJ prevented them to go out of the country
Wrongful intention and not mere error in judgment [Raquiza vs. Castaneda (1978)] SERIOUS MISCONDUCT
Article VIII: Graft and corruption when he failed and refused to account for the judiciary development fund and special allowance for the judiciary collections
Exists when the judicial act complained of is corrupt or inspired by an intention to violate the law or a persistent disregard of well-known legal rules. [Galangi v. Macli-ing, Adm. Matter No. 75-DJ (1978)]
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Supreme Court, if the respondent is a Justice of the Court of Appeals and the Sandiganbayan, or to a Justice of the Court of Appeals, if the respondent is a Judge of a Regional Trial Court or of a special court of equivalent rank, or to a Judge of the Regional Trial Court if the respondent is a Judge of an inferior court
An example is negligence in the performance of duty, if reckless in character [Lapena v. Collado, (1977)] ERROR OR IGNORANCE OF LAW
Error or mistake must be gross or patent, malicious, deliberate or in bad faith. Must act fraudulently, corruptly or with gross ignorance.
Sec. 4. Hearing. – The investigating Justice or Judge shall set a day of the hearing and send notice thereof to both parties. At such hearing the parties may present oral and documentary evidence. If, after due notice, the respondent fails to appear, the investigation shall proceed ex parte. The Investigating Justice or Judge shall terminate the investigation within ninety (90) days from the date of its commencement or within such extension as the Supreme Court may grant.
Caveat: Not every error or mistake of a judge in the performance of his duties makes him liable. To hold the judge administratively accountable for every erroneous ruling or decision he renders, assuming he has erred, would be nothing short of harassment and would make his position unbearable. [Secretary of Justice v. Marcos, (1977)]
Sec. 5. Report. – Within thirty (30) days from the termination of the investigation, the investigating Justice or Judge shall submit to the Supreme Court a report containing findings of fact and recommendation. The report shall be accompanied by the record containing the evidence and the pleadings filed by the parties. The report shall be confidential and shall be for the exclusive use of the Court.
Misconduct implies malice or a wrongful intent, not a mere error of judgment. “For serious misconduct to exist, there must be a reliable evidence showing that the judicial acts complained of were corrupt or were inspired by an intention to violate the law, or were in persistent disregard of well-known legal rules.” [In re: Impeachment of Horilleno, (1922)] Inefficiency implies negligence, ignorance and carelessness. A judge would be inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence and circumspection which the law requires in the rendition of any public service. [In re: Climaco, (1974)]
Sec. 6. Action. – The Court shall take such action on the report as the facts and the law may warrant. Sec. 12. Confidentiality of proceedings. – Proceedings against Judges of regular and special courts and Justices of the Court of Appeals and the Sandiganbayan shall be private and confidential, but a copy of the decision or resolution of the court shall be attached to the record of the respondent in the Office of the Court Administrator.
140: DISCIPLINE OF JUDGES OF REGULAR AND SPECIAL COURTS AND JUSTICES OF THE COURT OF APPEALS AND THE SANDIGANBAYAN RULE
Sec. 1. How instituted. – Proceedings for the discipline of judges of regular and special courts and Justices of the Court of Appeals and the Sandiganbayan may be instituted motu proprio by the Supreme Court or upon a verified complaint, supported by affidavits of person who have personal knowledge of the facts alleged therein or by documents which may substantiate said allegations, or upon an anonymous complaint, supported by public records of indubitable integrity. The complaint shall be in writing and shall state clearly and concisely the acts and omissions constituting violations of standards of conduct prescribed for Judges by law, the Rules of Court, or the Code of Judicial Conduct.
GROUNDS Sec. 7. Classification of charges. – Administrative charges are classified as serious, less serious, or light. Sec. 8. Serious charges. – Serious charges include: (1) Bribery, direct or indirect; (2) Dishonesty and violations of the Anti-Graft and Corrupt Practices Law (R.A. No. 3019); (3) Gross misconduct constituting violations of the Code of Judicial Conduct; (4) Knowingly rendering an unjust judgment or order as determined by a competent court in an appropriate proceeding; (5) Conviction of a crime involving moral turpitude; (6) Willful failure to pay a just debt; (7) Borrowing money or property from lawyers and litigants in a case pending before the court; (8) Immorality; (9) Gross ignorance of the law or procedure; (10) Partisan political activities; and (11) Alcoholism and/or vicious habits.
Sec. 2. Action on the complaint. – If the complaint is sufficient in form and substance, a copy thereof shall be served upon the respondent, and he shall be required to comment within ten (10) days from the date of service. Otherwise, the same shall be dismissed. Sec. 3. By whom complaint investigated. – Upon the filing of the respondent’s comment, or upon the expiration of the time for filing the same and unless other pleadings or documents are required, the Court shall refer the matter to the Office of the Court Administrator for evaluation, report, and recommendation or assign the case for investigation, report, and recommendation to a retired member of the
Sec. 9. Less Serious Charges. – Less serious charges include: (1) Undue delay in rendering a decision or order, or in transmitting the records of a case;
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(2) Frequently and unjustified absences without leave or habitual tardiness; (3) Unauthorized practice of law; (4) Violation of Supreme Court rules, directives, and circulars; (5) Receiving additional or double compensation unless specifically authorized by law; (6) Untruthful statements in the certificate of service; and (7) Simple Misconduct.
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(B) If the respondent is guilty of a less serious charge, any of the following sanctions shall be imposed: (1) Suspension from office without salary and other benefits for not less than one (1) nor more than three (3) months; or (2) A fine of more than P10,000.00 but not exceeding P20,000.00. (C) If the respondent is guilty of a light charge, any of the following sanctions shall be imposed: (1) A fine of not less than P1,000.00 but not exceeding P10,000.00 and/or (2) Censure; (3) Reprimand; (4) Admonition with warning.
Sec. 10. Light Charges. – Light charges include: (1) Vulgar and unbecoming conduct; (2) Gambling in public; (3) Fraternizing with lawyers and litigants with pending case/cases in his court; and (4) Undue delay in the submission of monthly reports.
INSTANCES OF SERIOUS MISCONDUCT WHICH MERITED DISCIPLINE BY THE SUPREME COURT:
AUTOMATIC CONVERSION OF ADMINISTRATIVE CASES AGAINST CA AND SANDIGANBAYAN JUSTICES AND LOWER COURT JUDGES Administrative cases against CA, Sandiganbayan justices, and lower court judges where the charges constitute misconduct for members of the Bar, shall also be considered as disciplinary action against the judge. The respondent shall be required to comment or show cause why he should not be suspended, disbarred or sanctioned as a member of the Bar. [A.M. NO. 02-9-02 SC]
(a) Failure to deposit funds with the municipal treasurer or produce them despite his promise to do so [Montemayor v. Collado (1981)] (b) Misappropriation of fiduciary funds (proceeds of cash bail bond) by depositing the check in his personal account, thus converting the trust fund into his own use [Barja v. Beracio (1976)]. (c) Extorting money from a party-litigant who has a case before his court [Haw Tay v. Singayao (1988)]. (d) Solicitation of donation for office equipment [Lecaroz v. Garcia (1981)]. (e) Frequent unauthorized absences in office [Municipal Council of Casiguruhan, Quezon v. Morales (1974)].
IMPEACHMENT ETHICAL ASPECTS Chief Justice Corona was the first justice of the Supreme Court to be impeached and convicted. He was found guilty for culpable violation of the Constitution and/or betrayal of public trust for not correctly declaring his Statements of Assets, Liabilities and Net worth (SALN).
INSTANCES OF GROSS INEFFICIENCY WHICH MERITED DISCIPLINE BY THE SUPREME COURT
(a) Delay in the disposition of cases in violation of the Canon that a judge must promptly dispose of all matters submitted to him. With or without the transcripts of stenographic notes, the 90-day period for deciding cases or resolving motions must be adhered to [Balagot v. Opinion (1991)]. (b) Unduly granting repeated motions for postponement of a case [Araza v. Reyes (1975)]. (c) Unawareness of or unfamiliarity with the application of the Indeterminate Sentence Law and the duration and graduation of penalties [In re: Paulin (1980)]. (d) Reducing to a ridiculous amount (P6,000.00) the bail bond of the accused in a murder case thus enabling him to escape the toils of the law [Soriano v. Mabbayad (1975)]. (e) Imposing the penalty of subsidiary imprisonment on a party for failure to pay civil indemnity in violation of R.A. 5465 [Monsanto v. Palarca (1983)].
The prosecution alleges that he inaccurately declared his peso and dollar deports, and real estate properties. The defense argues that CJ Corona did not declare his dollar deposits (around $2.4M) and peso deposits (P105 M) because of the banking secrecy and foreign currency deposit units laws. Corona also said that some undeclared assets are also co-mingled funds that he does not own solely. SANCTIONS IMPOSED BY THE SUPREME COURT ON ERRING MEMBERS OF THE JUDICIARY Sec. 11. Sanctions. – (A) If the respondent is guilty of a serious charge, any of the following sanctions may be imposed: (1) Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations. Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; (2) Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or (3) A fine of more than P20,000.00 but not exceeding P40,000.00
Administrative cases against lower court judges and justices are automatically treated as disbarment cases QUANTUM OF EVIDENCE REQUIRED: Beyond reasonable doubt. RULES FOR EVIDENCE: Same rules as in criminal trials EFFECT OF WITHDRAWAL, DESISTANCE, RETIREMENT OR PARDON
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The withdrawal of the case by the complainant, or the filing of an affidavit of desistance or the complainant’s loss of interest does not necessarily cause the dismissal thereof. Reason: To condition administrative actions upon the will of every complainant who for one reason or another, condones a detestable act is to strip the Supreme Court of its supervisory power to discipline erring members of the judiciary. [Anguluan v. Taguba, (1979)]
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Desistance will not justify the dismissal of an administrative case if the records will reveal that the judge had not performed his duties. [Espayos v. Lee (1979)]
Intimacy or friendship between a judge and an attorney of record of one of the parties to a suit is no ground for disqualification. That one of the counsels in a case was a classmate of the trial judge is not a legal ground for the disqualification of the said judge. To allow it would unnecessarily burden other trial judges to whom the case would be transferred… But if the relationship between the judge and an attorney for a party is such that there would be a natural inclination to prejudice the case, the judge should be disqualified in order to guaranty a fair trial. [Query of Executive Judge Estrada (1987)]
Disqualifications of Justices & Judges
Powers and Duties of Courts & Judicial Officers
COMPULSORY DISQUALIFICATION [Section 1 (1), Rule 137, ROC] No judge or judicial officer shall sit in any case in which: (a) He, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise; or (b) He is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law; or (c) He has been executor, administrator, guardian, trustee or counsel; or (d) He has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.
NATURE OF OFFICE OF THE JUDGE Justices and judges must ever realize that they have no constituency, serve no majority or minority but serve only the public interest as they see it in accordance with their oath of office, guided only by the Constitution and their own conscience and honor. [Galman v. Sandiganbayan (1986)] PROMPT AND IMPARTIAL ADMINISTRATION OF JUSTICE [Sec. 1, Rule 135 ROC] General Rule: Courts of justice shall always be open for the filing of any pleading, motion or other papers, for the trial of cases, hearing of motions, and for the issuance of orders or rendition of judgments. Justice shall be impartially administered without necessary delay.
The relationship of the judge with one of the parties may color the facts and distort the law to the prejudice of a just decision. Where this is probable or even only possible, due process demands that the judge inhibit himself, if only out of a sense of delicadeza. [Javier v. Commission on Elections (1996)]
Exception: Legal holidays Art. VIII, Sec. 15, 1987 Constitution (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all lower courts. xxx (3) Upon expiration of the corresponding period, a certification to this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon the parties. The certification shall state why a decision or resolution has not been rendered or issued within said period. (4) Despite the expiration of the applicable mandatory period, the court, without prejudice to such responsibility as may have incurred in consequence thereof, shall decide or resolve the case or matter submitted thereto for determination, without further delay.
The rationale behind Sec. 1, Rule 137 on disqualification of judges is to preserve public faith in the judiciary’s fairness and objectivity to ally suspicions and distrust as to a possible bias and prejudice in favor or a party coming into play. [Hacienda Benito, Inc. v. Court of Appeals (1987)] VOLUNTARY DISQUALIFICATION [Section 1 (2), Rule 137, ROC] A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above. A judge may not be legally prohibited from sitting in a litigation, but when circumstances appear that will induce doubt as to his honest actuations and probity in favor of either party, or incite such state of mind, he should conduct a careful examination. He should exercise his discretion in a way that people’s faith in the Courts of Justice is not impaired. The better course for the judge under such circumstances is to disqualify himself. [Borromeo-Herrera v. Borromeo (1987)]
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Judges should decide cases even if the parties failed to submit memoranda within the given period. Nonsubmission of memoranda is not a justification for failure to decide cases. [Salvador v. Salamanca (1986)]
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(b) To enforce order in proceedings before it, or before a person or persons empowered to conduct a judicial investigation under its authority; (c) To compel obedience to its judgments, orders and processes, and to the lawful orders of a judge out of court, in a case pending therein; (d) To control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a case before it, in every manner appertaining thereto; (e) To compel the attendance of persons to testify in a case pending therein; (f) To administer or cause to be administered oaths in a case pending therein, and in all other cases where it may be necessary in the exercise of its powers; (g) To amend and control its process and orders so as to make them conformable to law and justice; (h) To authorize a copy of a lost or destroyed pleading or other paper to be filed and used instead of the original, and to restore, and supply deficiencies in its records and proceedings. [Sec. 5, Rule 135 ROC]
PUBLICITY OF PROCEEDINGS AND RECORDS The sitting of every court of justice shall be public, but any court may, in its discretion, exclude the public when the evidence to be adduced is of such nature as to require their exclusion in the interest of morality or decency. The records of every court of justice shall be public records and shall be available for the inspection of any interested person, at all proper business hours, under the supervision of the clerk having custody of such records, unless the court shall, in any special case, have forbidden their publicity, in the interest of morality or decency. [Sec. 2, Rule 135 ROC] PROCESS OF SUPERIOR COURTS Process issued from a superior court in which a case is pending to bring in a defendant, or for the arrest of any accused persons, or to execute any order or judgment of the court, may be enforced in any part of the Philippines. [Sec. 3, Rule 135 ROC]
MEANS TO CARRY JURISDICTION INTO EFFECT When by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules. [Sec. 6, Rule 135 ROC]
PROCESS OF INFERIOR COURTS [Sec. 4, Rule 135 ROC] General Rule: The process of inferior courts shall be enforceable within the province where the municipality or city lies. It shall not be served outside the boundaries of the province in which they are comprised
TRIALS AND HEARINGS; ORDERS IN CHAMBERS All trials upon the merits shall be conducted in open court and so far as convenient in a regular court room. All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk or other court officials. [Sec. 7, Rule 135 ROC]
Exceptions: (1) Except with the approval of the judge of first instance of said province; and (2) Only in the following cases: (a) An order for the delivery of personal property lying outside the province is to be complied with; (b) An attachment of real or personal property lying outside the province is to be made (c) The action is against two or more defendants residing in different provinces; and (d) The place where the case has been brought is that specified in a contract in writing between the parties, or is the place of the execution of such contract as appears therefrom.
INTERLOCUTORY ORDERS OUT OF PROVINCE A judge of first instance shall have power to hear and determine, when within the district through without his province, any interlocutory motion or issue after due and reasonable notice to the parties. On the filing of a petition for the writ of habeas corpus or for release upon bail or reduction of bail in any CFI, the hearings may be had at any place in the judicial district which the judge shall deem convenient. [Sec. 8, Rule 135 ROC]
Writs of execution issued by inferior courts may be enforced in any part of the Philippines without any previous approval of the judge of first instance.
SIGNING JUDGMENTS OUT OF PROVINCE Whenever a judge appointed or assigned in any province or branch of a Court of First Instance in a province shall leave the province by transfer or assignment to another court of equal jurisdiction, or by expiration of his temporary assignment, without having decided a case totally heard by him and which was argued or an opportunity given for argument to the parties or their counsel, it shall be lawful for him to prepare and sign his decision in said case anywhere within the Philippines. He shall send the same by registered mail to the clerk of the court where the case was heard or argued to be filed therein as of the date when the same was received by the clerk, in the same manner as if he had been present in court to direct the filing the of the judgment. If a case has been heard only in part, the
Criminal process may be issued by a justice of the peace or other inferior court, to be served outside his province, when the district judge, or in his absence the provincial fiscal, shall certify that in his opinion the interests of justice require such service. INHERENT POWERS OF THE COURTS Every court shall have power: (a) To preserve and enforce order in its immediate presence
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Supreme Court, upon petition of any of the parties to the case and the recommendation of the respective district judge, may also authorize the judge who has partly heard the case, if no other judge had heard the case in part, to continue hearing and to decide said case notwithstanding his transfer or appointment to another court of equal jurisdiction. [Sec. 9, Rule 135 ROC]
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DUTIES OF THE CLERK IN THE ABSENCE OR BY DIRECTION OF THE JUDGE In the absence of the judge, the clerk may perform all the duties of the judge in receiving applications, petitions, inventories, reports, and the issuance of all orders and notices that follow as a matter of course under these rules, and may also, when directed so to do by the judge, receive the accounts of executors, administrators, guardians, trustees, and receivers, and all evidence relating to them, or to the settlement of the estates of deceased persons, or to guardianships, trusteeships, or receiverships, and forthwith transmit such reports, accounts, and evidence to the judge, together with his findings in relation to the same, if the judge shall direct him to make findings and include the same in his report. [Sec. 5, Rule 136 ROC]
Court Records & General Duties of Clerk Stenographer ARMS AND GREAT SEAL OF THE SUPREME COURT [Sec. 1, Rule 136 ROC] Arms - Paleways of two pieces azure and gules superimposed a balance or center with two tablets containing the commandments of God or on either side; a chief argent with three mullets or equidistant from each other; in point of honor, ovoid argent over all the sun, rayonnant or with eight major and minor rays.
CLERK SHALL RECEIVE PAPERS AND PREPARE MINUTES The clerk of each superior court shall receive and file all pleadings and other papers properly presented, endorsing on each such paper the time when it was filed, and shall attend all of the sessions of the court and enter its proceedings for each day in a minute book to be kept by him. [Sec. 6, Rule 136 ROC]
Great Seal - Circular in form, with the arms as described above and a scroll argent with the following inscription: Lex Populesque, and surrounding the whole a garland of laurel leaves in or; around the garland the text Supreme Court, Republic of the Philippines.
SAFEKEEPING OF PROPERTY The clerk shall safely keep all records, papers, files, exhibits and public property committed to his charge, including the library of the court, and the seals and furniture belonging to his office. [Sec. 7, Rule 136 ROC]
ARMS AND SEAL OF THE COURT OF APPEALS Same as that of the Supreme Court; only difference is that the seal shall bear around the garland the text Court of Appeals, Republic of the Philippines.
GENERAL DOCKET The clerk shall keep a general docket, each page of which shall be numbered and prepared for receiving all the entries in a single case, and shall enter therein all cases, numbered consecutively in the order in which they were received, and, under the heading of each case and a complete title thereof, the date of each paper filed or issued, of each order or judgment entered, and of each other step taken in the case so that by reference to a single page the history of the case may be seen. [Sec. 8, Rule 136 ROC]
ARMS AND SEAL OF THE COURT OF FIRST INSTANCE Same as that of the Supreme Court; only difference is that the seal shall bear around the garland the text Court of First Instance, the name of the province, Republic of the Philippines. STYLE OF PROCESS Process shall be under the seal of the court from which it issues, be styled Republic of the Philippines, Province or City of _____________ to be signed by the clerk and bear date that day it actually issued. [Sec. 2, Rule 136 ROC]
JUDGMENT AND ENTRIES BOOK The clerk shall keep a judgment book containing a copy of each judgment rendered by the court in order of its date, and a book of entries of judgments containing at length in chronological order entries of all final judgments or orders of the court. [Sec. 9, Rule 136 ROC]
CLERK’S OFFICE The clerk’s office, with the clerk or his deputy in attendance, shall be open during business hours on all days except Sundays and legal holidays. The clerk of the Supreme Court and that of the Court of Appeals shall keep office at Manila and all papers authorized or required to be field, therein shall be filed at Manila. [Sec. 3, Rule 136 ROC]
EXECUTION BOOK The clerk shall keep an execution book in which he or his deputy shall record at length in chronological each execution, and the officer’s return thereon, by virtue of which real property has been sold. [Sec. 10, Rule 136 ROC]
ISSUANCE BY CLERK OF PROCESS The clerk of a superior court shall issue under the seal of the court all ordinary writs and process incident to pending cases, the issuance of which does not involve the exercise of functions appertaining to the court or judge only; and may, under the direction of the court or judge, make out and sign letters of administration, appointments of guardians, trustees, and receivers, and all writs and process issuing from the court. [Sec. 4, Rule 136 ROC]
CERTIFIED COPIES The clerk shall prepare, for any person demanding the same, a copy certified under the seal of the court of any paper, record, order, judgment, or entry in his office, proper to be certified, for the fees prescribed by these rules. [Sec. 11, Rule 136 ROC]
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OTHER BOOKS AND DUTIES The clerk shall keep such other books and perform such other duties as the court may direct. [Sec. 12, Rule 136 ROC]
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STENOGRAPHER It shall be the duty of the stenographer who has attended a session of a court either in the morning or in the afternoon, to deliver to the clerk of court, immediately at the close of such morning or afternoon session, all the notes he has taken, to be attached to the record of the case; and it shall likewise be the duty of the clerk to demand that the stenographer comply with said duty. The clerk of court shall stamp the date on which such notes are received by him. When such notes are transcribed the transcript shall be delivered to the clerk, duly initialed on each page thereof, to be attached to the record of the case.
INDEX The general docket, judgment book, entries book and execution book shall be indexed in alphabetical order in the names of the parties, and each of them. If the court so directs, the clerk shall keep two or more of either or all of the books and dockets above-mentioned, separating civil from criminal cases, or actions from special proceedings, or otherwise keeping cases separated by classes as the court shall deem best. [Sec. 13, Rule 136 ROC]
Whenever requested by a party, any statement made by a judge of First Instance, or by a commissioner, with reference to a case being tried by him, or to any of the parties thereto, or to any witness or attorney, during the hearing of such case, shall be made of record in the stenographic notes. [Sec. 17, Rule 136 ROC]
TAKING OF RECORD FROM THE CLERK’S OFFICE [Sec. 14, Rule 136 ROC] General Rule: No record shall be taken from the clerk’s office without an order of the court except as otherwise provided by these rules. Exception: The Solicitor General or any of his assistants, the provincial fiscal or his deputy, and the attorneys de officio shall be permitted, upon proper receipt, to withdraw from the clerk’s office the record of any cases in which they are interested.
DOCKET AND OTHER RECORDS OF INFERIOR COURTS. Every municipal and city judge shall keep a well-bound book labeled docket, in which he shall enter for each case: (a) The title of the case including the names of all the parties; (b) The nature of the case, whether civil or criminal, and if the latter, the offense charged; (c) The date of issuing preliminary and intermediate process including orders of arrest and subpoenas, and the date and nature of the return thereon; (d) The date of the appearance or default of the defendant; (e) The date of presenting the plea, answer, or motion to quash, and the nature of the same; (f) The minutes of the trial, including the date thereof and of all adjournments; (g) The names and addresses of all witnesses; (h) The date and nature of the judgment, and, in a civil case, the relief granted; (i) An itemized statement of the costs (j) The date of any execution issued, and the date and contents of the return thereon; (k) The date of any notice of appeal filed, and the name of the party filing the same.
UNPRINTED PAPERS All unprinted documents presented to the superior courts of the Philippines shall be written on paper: (a) Of good quality (b) 12 and 3/8 inches long (c) 8 ½ inches wide (d) Not less than 1 ½ inch top and left-hand side margins Papel catalan, of the first and second classes, legal cap, and typewriting paper of such weight as not to permit the writing of more than one original and two carbons at one time, will be accepted, provided that such paper is of the required size and of good quality. Documents written with ink shall not be of more than twenty-five lines to one page. Typewritten documents shall be written double-spaced. One side only of the page will be written upon, and the different sheets will be sewn together, firmly, by five stitches in the left-hand border to facilitate the formation of the expediente, and they must not be doubled. [Sec. 15, Rule 136 ROC]
A municipal (or city) judge may keep two dockets, one for civil and one for criminal cases. He shall also keep all the pleadings and other papers and exhibits in cases pending in his court, and shall certify copies of his docket entries and other records proper to be certified, for the fees prescribed by these rules. It shall not be necessary for the municipal (or city) judge to reduce to writing the testimony of witnesses, except that of the accused in preliminary investigations. [Sec. 18, Rule 136 ROC]
PRINTED PAPERS All papers required by these rules to be printed shall be printed with: (a) Black ink (b) On unglazed paper (c) Pages 6 inches wide, 9 inches (d) In pamphlet form The type used shall not be smaller than 12 pts.
ENTRY ON DOCKET OF INFERIOR COURTS. [Sec. 19, Rule 136 ROC]
The paper used shall be of sufficient weight to prevent the printing upon one side from being visible upon the other. [Sec. 16, Rule 136 ROC]
Each municipal (or city) judge shall, at the beginning and in front of all his entries in his docket, make and subscribe substantially the following entry:
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A docket of proceedings in cases before , municipal judge (or city judge) of the municipality (or city) of , in the province of , Republic of the Philippines.
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Costs RECOVERY OF COSTS [RULE 142]
Witness my signature,
Municipal (or City Judge)
Unless otherwise provided in these rules, costs shall be allowed to the prevailing party as a matter of course, but the court shall have power, for special reasons, adjudge that either party shall pay the costs of an action, or that the same be divided, as may be equitable. No costs shall be allowed against the Republic of the Philippines unless otherwise provided by law. [Sec. 1, Rule 142 ROC]
DISMISSED APPEAL OR ACTION
MANNER OF PAYMENT Upon filing of the pleading or other application which initiates an action or proceeding, the fees prescribed therefor shall be paid in full. [Sec. 1, Rule 141 ROC]
If an action or appeal is dismissed for want of jurisdiction or otherwise, the court nevertheless shall have the power to render judgment for costs, as justice may require. [Sec. 2, Rule 142 ROC]
FEES IN LIEN Where the court in its final judgment awards a claim not alleged, or a relief different from, or more than that claimed in the pleading, the party concerned shall pay the additional fees which shall constitute a lien on the judgment in satisfaction of said lien. The clerk of court shall assess and collect the corresponding fees. [Sec. 2, Rule 141 ROC]
Where an action or an appeal is found to be frivolous, double or treble costs may be imposed on the plaintiff or appellants, which shall be paid by his attorney, if so ordered by the court. [Sec. 3, Rule 142 ROC] FALSE ALLEGATIONS
An averment in a pleading made without reasonable cause and found untrue shall subject the offending party to the payment of such reasonable expenses as may have been necessarily incurred by the other party by reason of such untrue pleading. The amount of expenses so payable shall be fixed by the judge in the trial, and taxed as costs. [Sec. 4, Rule 142 ROC]
PERSONS AUTHORIZED TO COLLECT LEGAL FEES [Sec. 3, Rule 141 ROC] Except as otherwise provided in this rule, the officers and persons hereinafter mentioned, together with their assistants and deputies, may demand, receive, and take the several fees hereinafter mentioned and allowed for any business by them respectively done by virtue of their several offices, and no more. All fees so collected shall be forthwith remitted to the Supreme Court. The persons herein authorized to collect legal fees shall be accountable officers and shall be required to post bond in such amount as prescribed by the law.
NON-APPEARANCE OF WITNESS
If a witness fails to appear at the time and place specified in the subpoena issued by any inferior court, the costs of the warrant of arrest and of the arrest of the witness shall be paid by the witness if the court shall determine that his failure to answer the subpoena was willful or without just excuse. [Sec. 12, Rule 142 ROC]
(a) Clerks of the Supreme Court, CA, CTA, and Sandiganbayan (Sec.4) (b) Clerks of RTCs (Sec. 7) (c) Clerks of Court of First Level Courts (Sec. 8) (d) Sheriffs, Process Servers and other persons serving processes (Sec. 10) (e) Stenographers (Sec. 11) (f) Notaries (Sec. 12) (g) Other officers taking depositions (Sec. 13) It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed docket fee, that vests a trial court with jurisdiction over the subject matter or nature of the action. Where the filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period. [Sun Life Insurance Office LTD., v. Asuncion (1989)]