UP LAW BOC 2016 - LEGAL AND JUDICIAL ETHICS REVIEWER.pdf

2016

University of the Philippines College of Law Bar Reviewer

Dean Dean Danilo L. Concepcion

Overall Head Desiree Sokoken

Associate Dean Prof. Concepcion L. Jardeleza

Faculty Adviser Prof. Concepcion L. Jardeleza

College Secretary Prof. Ma. Gisella N. Dizon-Reyes

Subject Head Nadaine Tongco

Bar Operations Commissioner Lazaro Kevin G. Pabiona Academics Committee Heads Evert Callueng Paulo Faustino Carlos Hernandez Audrey Ng Desiree Sokoken

4TH WEEK

LEGAL AND JUDICIAL ETHICS UP Law Bar Operations Commission 2016

UP Law Bar Operations Commission 2016

UP LAW BAR OPS 2016

Table of Contents LEGAL ETHICS

1

I. SUPERVISION AND CONTROL OF THE LEGAL PROFESSION

2

A. Constitutional Basis B. Regulatory Powers

2 2

II. PRACTICE OF LAW

2

A. Concept A.1. Privilege A.2. Profession, not business B. Qualifications B.1. Citizenship B.2. Residence B.3. Age B.4. Good Moral Character B.5. Legal Education B.6. Bar Examinations C. Appearance of Non-Lawyers C.1. Law student practice C.2. Non-lawyers in courts C.3. Self-representation C.4. Agent or friend C.5. Non-lawyers in administrative tribunals C.6. Proceedings where lawyers are prohibited from appearing D. Sanctions for Practice or Appearance Without Authority D.1. Lawyers without authority D.2. Persons not lawyers E. Public Officials and Practice of Law E.1. Prohibition or disqualification of former government attorneys E.2. Public officials who cannot practice law or with restrictions F. Lawyers Authorized to Represent the Government G. Lawyer’s Oath

2 3 3 3 4 4 4 5 5 6 8 8 8 9 9

III. DUTIES AND RESPONSIBILITIES OF A LAWYER A. In General B. To Society B.1. Respect for law and legal processes B.2. Efficient, convenient legal services B.3. True, honest, fair, dignified & objective information on legal services

9 10 10 10 10 10 10

B.4. Participation in the improvement and reforms in the legal system B.5. Participation in legal education program C. To the Legal Profession C.1. Involvement in the IBP C.2. Upholding the dignity & integrity of the profession C.3. Courtesy, fairness & candor towards professional colleagues C.4. No assistance in unauthorized practice of law D. To the Courts D.1. Candor, fairness & good faith towards the courts D.2. Respect for courts & judicial officers D.3. Assistance in the speedy & efficient administration of justice D.4. Reliance on merits of his cause & avoidance of any impropriety which tends to influence or gives the appearance of influence upon the courts E. To the Clients E.1. Availability of service without discrimination E.2. Candor, fairness and loyalty to clients E.3. Client’s moneys and properties E.4. Fidelity to client’s cause E.5. Competence and diligence E.6. Representation with zeal within legal bounds E.7. Attorney’s fees E.8. Preservation of client’s confidences E.9. Withdrawal of services IV. SUSPENSION, DISBARMENT, AND DISCIPLINE OF LAWYERS

18 18 21 21 22 23 25 27 27 28 30

34 35 38 42 44 44 46 47 51 53 54

11 11 11 12 12 13 13 15 16

A. Nature and Characteristics of Disciplinary Actions against Lawyers A.1. Confidential A.2. Other characteristics A.3. Prescription B. Grounds Misconduct in private capacity C. Proceedings D. Discipline of Filipino Lawyers Practicing Abroad E. Discipline of Lawyers in Government F. Quantum of Proof G. Disciplinary Measures H. Effect of Executive Pardon

54 55 55 55 56 57 57 58 58 58 58 60

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TABLE OF CONTENTS

I. Effect of Compromise Agreements

60

V. READMISSION TO THE BAR

60

A. Lawyers Who Have Been Suspended B. Lawyers Who Have Been Disbarred C. Lawyers Who Have Been Repatriated

60 60 61

VI. MANDATORY CONTINUING LEGAL EDUCATION (MCLE)

61

A. Purpose B. Requirements C. Compliance D. Exemptions E. Sanctions F. Bar Matter 2012: The Rule on Mandatory Legal Aid Service

61 61 62 62 63

VIII. NOTARIAL PRACTICE

65

A. Qualifications of Notary Public B. Term of Office of Notary Public C. Powers and Limitations C.1. Powers C.2. Limitations D. Notarial Register D.1. Entries D.2. Closing D.3. Submission E. Jurisdiction of Notary Public and Place of Notarization F. Revocation of Commission G. Competent Evidence of Identity H. Sanctions

65 65 65 65 66 67 68 68 69

IX. CANONS OF PROFESSIONAL ETHICS

71

A. Origin B. Legal status

71 71

JUDICIAL ETHICS

72

I. SOURCES OF RULES IN JUDICIAL ETHICS

73

69 69 70 70

73 73

II. QUALITIES

73

A. Independence B. Integrity

73 77

C. Impartiality D. Propriety E. Equality F. Competence and Diligence

78 82 87 89

III. DISCIPLINE OF MEMBERS OF THE JUDICIARY

92

A. Supreme Court A.1. Impeachment A.2. Impeachment of former Chief Justice Corona B. Judges of the Lower Courts and Justices of Court of Appeals and Sandiganbayan C. Grounds and Sanctions

63

A. The New Code of Judicial Conduct for the Philippine Judiciary (Bangalore Draft) B. Code of Judicial Conduct

LEGAL AND JUDICIAL ETHICS

ii

92 92 92 93 95

III. DISQUALIFICATIONS OF JUSTICES AND JUDGES

97

A. Compulsory Disqualification B. Voluntary Disqualification

97 98

IV. POWERS AND DUTIES OF JUDICIAL OFFICERS

98

A. Administration of Justice B. Publicity of Proceedings C. Publicity of Records D. Enforceability of Court Process E. Inherent Powers of Courts F. Means to Carry Jurisdiction into Effect G. Trial, Hearings and Other Acts H. Interlocutory Orders out of Province

98 98 98 99 99 99 100 100

V. COURT RECORDS AND GENERAL DUTIES OF CLERKS AND STENOGRAPHERS

101

A. Clerks of Court A.1. Office of the Clerk of Court A.2. Duties of the Clerk of Court A.3. Taking of Records from Clerk’s Office B. Stenographers C. Dockets and other Records of Inferior Courts

101 101 101 102 102

VI. LEGAL FEES

103

A. Manner of Payment B. Fees in Lien C. Persons Authorized to Collect Legal Fees

103 103 103

VII. COSTS

104

102

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I. Supervision and Control of the Legal Profession

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II. Practice of Law A. 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, G.R. No. 100113 (1991)].

A. CONSTITUTIONAL BASIS [1987 Constitution, Article VIII, Sec. 5(5)] The Supreme Court has the power to promulgate rules pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the under-privileged.

According to Justice Padilla, in his dissent in Cayetano v. Monsod, the following factors are considered in determining whether there is practice of law [HACA]:

The provision recognizes the disciplinary authority of the Court over the members of the bar to be merely incidental to the Court's exclusive power to admit applicants to the practice of law [Garrido v. Garrido, A.C. 6593 (2010)].

(1) Habituality – Practice of law implies customarily or habitually holding one's self out to the public as a lawyer. It is more than an isolated appearance for it consists in frequent or customary action.

In the judicial system from which ours has been evolved, the admission, suspension, disbarment and reinstatement of attorneys at law in the practice of the profession and their supervision have been disputably a judicial function and responsibility [In re: Cunanan, 94 Phil 534 (1954)].

a. However, an isolated appearance may constitute practice of law when there is a rule prohibiting some persons from engaging in the exercise of the legal profession. (2) Application of law, legal principles, practice or procedure – It calls for legal knowledge, training and experience.

B. REGULATORY POWERS The power to regulate the practice of law includes:

(3) Compensation– Practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for compensation.

(1) Authority to define practice of law; (2) Prescribe the qualifications of a candidate to and the subjects of the bar examinations; (3) Decide who will be admitted to practice;

(4) Attorney-client relationship – Where no such relationship exists, such as in cases of teaching law or writing law books or articles, there is no practice of law.

(4) Discipline, suspend or disbar any unfit and unworthy member of the bar; (5) Reinstate any disbarred or indefinitely suspended attorney;

In view of the definition of the majority in Cayetano v. Monsod:

(6) Ordain the integration of the Bar; (7) Punish for contempt any person for unauthorized practice of law; and

(1) 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. The Legal Clinic, Inc., A.C. L-553 (1993)].

(8) In general, exercise overall supervision of the legal profession. PAGE 2 OF 104

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(2) Preparation of documents requiring knowledge of legal principles not possessed by ordinary layman [Ulep v. The Legal Clinic, Inc., A.C. L-553 (1993)].

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(5) Produce before the Supreme Court satisfactory evidence:

(3) Teaching law is considered practice of law because the fact of their being law professors is inextricably intertwined with the fact that they are lawyers [Re: Letter of UP Law Faculty, A.M. 10-10-4-SC (2011)].

a.

Of good moral character;

b.

That no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines [Sec. 2, Rule 138].

Requisites for the practice of law: (1) Admission to the bar:

A.1. PRIVILEGE 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 v. Rana, B.M. 1036 (2003)].

(a) Citizenship; (b) Residence; (c) Age (at least 21 years old); (d) Good moral character and no charges involving moral turpitude; The purposes for this requirement are: 1.

A.2. 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 v. Magulta, A. C. 99-634 (2002)].

To protect the public;

2. To protect the public image of lawyers; 3. To protect prospective clients; and 4. To protect errant lawyers from themselves [Dantes v. Dantes, A.C. 6486 (2004)].

B. QUALIFICATIONS Any person admitted to the bar and who is in good and regular standing is entitled to practice law [Sec. 1, Rule 138].

(e) Legal education (consisting of prelaw and law proper);

Every applicant for admission as a member of the bar must be:

(f) Pass the bar examinations;

(1) Citizen of the Philippines;

(h) Sign the roll of attorneys.

(g) Take the lawyer’s oath;

(2) At least 21 years of age;

(2) Good and regular standing:

(3) Of good moral character;

(a) Remain a member of the Integrated Bar of the Philippines (IBP);

(a) This requirement is not only a condition precedent to admission to the practice of law, its continued possession is also essential for remaining in the practice of law [In the Matter of the Disqualification of Bar Examinee Haron S. Meling In The 2002 Bar Examinations and For Disciplinary Action As Member of The Philippine Shari’a Bar, B.M. 1154 (2004)].

(b) Regularly pay all IBP dues and other lawful assessments (c) Faithful observance of the rules and ethics of the legal profession (e.g.: (MCLE)); (d) Be continually subject to judicial disciplinary control [Agpalo (2004)]. 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

(4) Resident of the Philippines; PAGE 3 OF 104

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administered by this Court and his signature in the roll of attorneys [Aguirre v. Rana, B.M. 1036 (2003)].

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person who intends to practice his profession in the Philippines must apply with the proper authority for a license or permit to engage in such practice. Thus, in pursuance to the qualifications laid down by the Court for the practice of law, the OBC requires the following:

General rule: Only members of the bar are entitled to practice law. Exceptions: The following are also allowed in exceptional circumstances:

1)

(1) Law students; (2) By an agent/friend; (3) By the litigant himself.

Petition for Re-Acquisition Philippine Citizenship;

of

2) Order (for Re-Acquisition Philippine citizenship);

of

3) Oath of Allegiance to the Republic of the Philippines;

B.1. CITIZENSHIP The practice of all professions in the Philippines shall be limited to Filipino citizens save in cases prescribed by law [Sec. 14, Art. XII, 1987 Constitution].

4) Identification Certificate (IC) issued by the Bureau of Immigration; 5) Certificate of Good Standing issued by the IBP;

Every applicant for admission as a member of the bar must be a citizen of the Philippines. [Sec. 2, Rule 138, RoC]

6) Certification from the IBP indicating updated payments of annual membership dues;

Ratio: Citizenship ensures allegiance to the Republic and its laws.

7) Proof of payment of professional tax; and

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 Dacanay, B.M. 1678 (2007)].

8) Certificate of compliance issued by the MCLE Office. [Petition to Reacquire the Privilege to Practice Law of Muneses, B.M. 2112 (2012)]. B.2. RESIDENCE Every applicant for admission as a member of the bar must be... a resident of the Philippines. [Sec. 2, Rule 138, RoC]

A Filipino lawyer who has lost and reacquired his citizenship under RA 9225 (Citizenship Retention and Re-acquisition Act of 2003) 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 membership dues in the IBP;

Ratio: His/her duties to his client and to the court will require that he be readily accessible and available.

annual

B.3. AGE Every applicant for admission as a member of the bar must be at least 21 years of age. [Sec. 2, Rule 138, RoC]

(2) Payment of professional tax; (3) Completion of 36 hours of MCLE;

Ratio: Maturity and discretion are required in the practice of law.

(4) Retaking of the lawyer’s oath [Sec. 5(4), RA 9225]. A Filipino lawyer who becomes a citizen of another country and later re-acquires his Philippine citizenship under RA 9225, remains to be a member of the Philippine Bar. However, the right to resume the practice of law is not automatic. RA 9225 provides that a PAGE 4 OF 104

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B.4. GOOD MORAL CHARACTER 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. [Sec. 2, Rule 138, RoC]

LEGAL AND JUDICIAL ETHICS

B.5. LEGAL EDUCATION I. Pre-law An applicant for admission to the bar examination shall present a certificate issued by the proper government agency that, before commencing the study of law, he or she had pursued and satisfactorily completed in an authorized and recognized university or college, requiring for admission thereto the completion of a four-year high school course, the course of study prescribed therein for a bachelor's degree in arts or sciences.

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, A.C. 3405 (1998)].

A Filipino citizen who completed and obtained his or her Bachelor of Laws degree or its equivalent in a foreign law school must present proof of having completed a separate bachelor's degree course. [Sec. 6, Rule 138, RoC; Re: Letter of Atty. Mendoza, B.M. 1153 (2010)].

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 (2004)].

II. Law proper All applicants for admission shall, before being admitted to the examination, satisfactorily show that they have successfully completed all the prescribed courses for the degree of Bachelor of Laws or its equivalent degree, in a law school or university officially recognized by the Philippine Government or by the proper authority in the foreign jurisdiction where the degree has been granted.

Good moral character is what a person really is, as distinguished from good reputation, the estimate in which he is held by the public in the place where he is known [In the Matter of the Disqualification of Bar Examinee Haron S. Meling In The 2002 Bar Examinations and For Disciplinary Action As Member of The Philippine Shari’a Bar, B.M. 1154 (2004)].

No applicant who obtained the Bachelor of Laws degree in this jurisdiction shall be admitted to the bar examination unless he or she has satisfactorily completed the following course in a law school or university duly recognized by the government:

The Supreme Court may deny lawyer’s oathtaking 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 xxx he is not inherently of bad moral fiber” [In re: Argosino, A.M. 712 (1997)].

1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11)

Concealment of pending criminal cases constitutes lack of good moral character (in petition to take the bar examinations) [In the Matter of the Disqualification of Bar Examinee Haron S. Meling In The 2002 Bar Examinations and For Disciplinary Action As Member of The Philippine Shari’a Bar, B.M. 1154 (2004)].

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Civil Law Commercial Law Remedial Law Criminal Law Public International Law Private International Law Political Law Labor and Social Legislation Medical Jurisprudence Taxation Legal Ethics

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A Filipino citizen who graduated from a foreign law school shall be admitted to the bar examination only upon submission to the Supreme Court of certifications showing:

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the academic freedom of institutions of higher learning; d) accrediting law schools that meet the standards of accreditation;

1) Completion of all courses leading to

e) prescribing minimum standards for law admission and minimum qualifications and compensation of faculty members;

the degree of Bachelor of Laws or its equivalent degree; 2) Recognition or accreditation of the

law school by the proper authority; and

f)

3) Completion of all the fourth year

subjects in the Bachelor of Laws academic program in a law school duly recognized by the Philippine Government. [Sec. 5, Rule 138, RoC; Re: Letter of Atty. Mendoza, B.M. 1153 (2010)].

prescribing the basic curricula for the course of study aligned to the requirements for admission to the Bar, law practice and social consciousness;

g) establishing a law practice internship as a requirement for taking the Bar which a law student shall undergo with any duly accredited private or public law office or firm or legal assistance group anytime during the law course for a specific period that the Board may decide, but not to exceed a total of twelve (12) months. For this purpose, the Board shall prescribe the necessary guidelines for such accreditation and the specifications of such internship which shall include the actual work of a new member of the Bar; and

Legal Education Board Under R.A. No. 7662 (Legal Education Reform Act od 1993), a Legal Education Board (LEB) was created in order to undertake appropriate reforms in the legal education system, require proper selection of law students, maintain quality among law schools, and require legal apprenticeship and continuing legal education. It is comprised of a former justice of the SC or CA (who serves as the Chairman), a representative of the IBP, a representative of the Philippine Association of Law Schools (PALS), a representative from the ranks of active law practitioners, a representative from the law students' sector (regular members), and the Secretary of the Department of Education or his representative (ex officio member).

h) adopting a system of continuing legal education. B.6. BAR EXAMINATIONS I. W hen to file permit All applicants for admission shall file with the clerk of the Supreme Court the evidence required at least 15 days before the beginning of the examination. They shall also file within the same period the affidavit and certificate required by Sec. 5 [Sec. 7, Rule 138, RoC].

The functions of the Board include: a) administering the legal education system in the country;

ii. Notice

b) supervising the law schools in the country;

Notice of applications for admission shall be published by the clerk of the Supreme Court in newspapers published in Filipino, English and Spanish, for at least ten days before the beginning of the examination [Sec. 8, Rule 138, RoC].

c) setting the standards of accreditation for law schools taking into account, among others, the size of enrollment, the qualifications of the members of the faculty, the library and other facilities, without encroaching upon PAGE 6 OF 104

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iii. Conduct of exam inations

v. Passing average

Persons taking the examination shall not bring papers, books or notes into the examination rooms. The questions shall be the same for all examinees and a copy thereof, in English or Spanish, shall be given to each examinee. Examinees shall answer the questions personally without help from anyone.

A candidate is deemed to have passed his examinations successfully if he obtained a general average of 75 percent in all subjects, without falling below 50 percent in any subject [Sec. 14, Rule 138, RoC]. The relative weights of the subjects used in determining the average are as follows: Subject

Upon verified application made by an examinee stating that his penmanship is so poor that it will be difficult to read his answers without much loss of time, the Supreme Court may allow such examinee to use a typewriter in answering the questions. Only noiseless typewriters shall be allowed to be used. The committee of bar examines shall take such precautions as are necessary to prevent the substitution of papers or commission of other frauds. Examinees shall not place their names on the examination papers. No oral examination shall be given [Sec. 10, Rule 138, RoC]. iv. W hen and examinations

where

to

Second Day Third Day Fourth Day

Civil Law

15%

Labor and Social Legislation

10%

Mercantile Law

15%

Criminal Law

10%

Political and International Law

15%

Taxation

10%

Remedial Law

20%

Legal Ethics and Practical Exercises

5%

vi. Com m ittee Of Exam iners Examinations shall be conducted by a committee of bar examiners to be appointed by the Supreme Court. This committee shall be composed of a Justice of the Supreme Court as chairman, and eight members of the bar of the Philippines, who shall hold office for a period of one year. The names of the members of this committee shall be published in each volume of the official reports [Sec. 12, Rule 138, RoC].

take

Examination for admission to the bar of the Philippines shall take place annually in the City of Manila. They shall be held in four days to be designated by the chairman of the committee on bar examiners [Sec. 11, Rule 138, RoC]. First Day

%

Morning

Political and International Law

Pursuant to Bar Matter No. 1161 (2009), two examiners are designated per bar subject.

Afternoon

Labor and Social Legislation

Morning

Civil Law

Afternoon

Taxation

Morning

Mercantile Law

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.

Afternoon

Criminal Law

Morning

Remedial law

Afternoon

Legal Ethics and Practical Exercises

vii. Results Not later than February 15th after the examination, or as soon thereafter as may be practicable, the committee shall file its report on the result of such examination. The examination papers and notes of the committee shall be filed with the clerk and PAGE 7 OF 104

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may there be examined by the parties in interest, after the court has approved the report [Sec. 15, Rule 138, RoC].

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officer, to represent indigent clients accepted by the legal clinic of the law school [Sec. 1, Rule 138-A]. The appearance of the law student 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 [Sec. 2, Rule 138A].

viii. Flunkers Candidates who have failed the bar examinations for three times shall be disqualified from taking another examination unless they show to the satisfaction of the court that they have enrolled in and passed regular fourth year review classes as well as attended a pre-bar review course in a recognized law school.

The Rules safeguarding privileged communications between attorney and client shall apply [Sec. 3, Rule 138-A].

ix. Disciplinary m easures No candidate shall endeavor to influence any member of the committee, and during examination, the candidates shall not communicate with each other nor shall they give or receive any assistance. Any violator shall be barred from the examination, and the same to count as a failure against him, and further disciplinary action may be taken in the discretion of the court [Sec. 13, Rule 138, RoC]. x. Civil service eligibility Under RA 1080, as amended by RA 1844, the Bar examinations is declared as civil service examinations equivalent to:

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 [Sec. 4, Rule 138-A]. Sec. 34, Rule 138 is clear that appearance before the inferior courts by a non-lawyer is allowed, irrespective of whether or not he is a law student [Cruz v. Mina, G.R. 154207 (2007)]. Thus, a law student may appear under the circumstances of Sec. 38, as an agent or a friend of a party litigant, without complying with the requirements of Rule 138A, e.g., supervision of a lawyer. C.2. NON-LAWYERS IN COURTS 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 [Sec 34, Rule 138].

(1) First grade regular examination for appointment to a position which requires proficiency in law; and (2) Second grade regular examination for appointment to a position which does not require proficiency in law.

C. APPEARANCE OF NON-LAWYERS

Public policy demands that legal work in representation of parties should be entrusted only to those possessing tested qualifications [PAFLU v. Binalbagan, G.R. No. L-23959 (1971)].

C.1. LAW STUDENT PRACTICE A law student who has successfully completed third 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

However, the Supreme Court, in the exercise of its judicial power, can validly authorize a layman to represent a litigant in court [Agpalo (2004)]. PAGE 8 OF 104

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A non-lawyer conducting his own litigation is bound by the same rules in conducting the trial of his case. He cannot, after judgment, claim that he was not properly represented [Agpalo (2004)].

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(3) The attorney declines for a valid reason (e.g., conflict of interest) [People v. Serzo, G.R. No. 118435 (1997)]. C.4. AGENT OR FRIEND When appointed or chosen, the agent or friend is not engaged in the practice of law, since there is no habituality in the activity and no attorney-client relationship exists. He is only permitted to appear in the municipal trial court.

C.3. SELF-REPRESENTATION In any court, a party may conduct his litigation in person. 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 [Danforth v. Egan, 119 N.W. 1021 (1909)].

In criminal cases, in localities where members of the bar are not available, the court may appoint any person (i.e., non-lawyer), who is a resident of the province and of good repute for probity and ability to defend the accused, in lieu of a counsel de oficio [Sec. 7, Rule 116]. In relation to Sec. 34, Rule 138, this is only allowed in the municipal trial court.

When a person conducts his litigation in person, he is not engaged in the practice of law [Agpalo (2004)]. A juridical person may also appear through its non-lawyer agents or officers in the municipal trial court.

C.5. NON-LAWYERS IN ADMINISTRATIVE TRIBUNALS A party may also appear on his own behalf, his organization or members thereof, before administrative bodies. This is also expressly allowed in Art. 222 of the Labor Code.

Sec. 34 does not distinguish between civil and criminal cases. However, in criminal cases, the rule is qualified: (1) Under Sec. 1(c), Rule 115, the accused may defend himself in person “when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel.”

There are laws which allow representation of another by non-lawyers before such bodies. (1) The 2011 NLRC Rule of Procedure, promulgated pursuant to Art 218(a), Labor Code, allows (a) non-lawyers, who are not necessarily a party to the case, to represent a union or members thereof, (b) non-lawyers who are duly-accredited members of any legal aid office recognized by the Department of Justice or Integrated Bar of the Philippines, and (c) non-lawyer owners of establishments, to appear before it.

(2) Under Sec. 7, Rule 116, in determining whether a counsel de oficio should be appointed, or, for that matter, whether a counsel de parte should be required (conversely, whether the accused should be allowed to defend himself in person), the gravity of the offense and the difficulty of the questions that may arise should be considered. While the right to be represented by counsel is immutable, the option to secure the services of counsel de parte is not absolute. The court may restrict the accused’s option to retain a counsel de parte if:

(2) Under Sec. 9, Act 2259 (Cadastral Act), a claimant may appear by himself, or by some person in his behalf, before a cadastral court. In order that these laws will not infringe upon the power of the Supreme Court to regulate the practice of law, the following limitations must be observed:

(1) He insists on an attorney he cannot afford; (2) He chose a person not a member of the bar;

(1) The non-lawyer should confine his work to non-adversary contentions and should PAGE 9 OF 104

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not undertake purely legal work (i.e., examination of witness, presentation of evidence); (2) The services should not be habitual; (3) Attorney’s fees should not be charged [Agpalo (2004)]. C.6. PROCEEDINGS WHERE LAWYERS ARE PROHIBITED FROM APPEARING (1) In small claims cases, no attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is the plaintiff or defendant. If the court determines that a party cannot properly present his/her claim or defense and needs assistance, the court may, in its discretion, allow another individual who is not an attorney to assist that party upon the latter's consent [Sec. 17, Rules of Procedure in Small Claims Cases]. (2) In all katarungang pambarangay proceedings, the parties must appear in person without the assistance of the counsel or representative, except for minors and incompetents who may be assisted by their next of kin who are not lawyers [Sec 415, Local Gov’t Code].

D. SANCTIONS FOR PRACTICE OR APPEARANCE WITHOUT AUTHORITY D.1. LAWYERS WITHOUT AUTHORITY Under Sec. 27, Rule 138, corruptly or willfully appearing as an attorney for a party to a case without authority to do so is a ground for disbarment or suspension.

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(5) Administrative complaint against the erring lawyer or government official; (6) Criminal complaint for estafa against the person who falsely represented himself as a lawyer to the damage of another.

E. PUBLIC OFFICIALS AND PRACTICE OF LAW E.1. PROHIBITION OR DISQUALIFICATION OF FORMER GOVERNMENT ATTORNEYS Under Sec. 7(b), RA 6713, 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. These prohibitions shall continue to apply for a period of one year after resignation, retirement or separation from public office, except in case of the second. Also, the one year prohibition applies to practice of profession in connection with any matter before the office he used to be with.

D.2. PERSONS NOT LAWYERS For persons not lawyers as well as lawyers who appear without authority, the following may be availed of: (1) Petition for injunction; (2) Declaratory relief; (3) Contempt of court; (4) Disqualification disbarment;

and

complaints

for

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E.2. PUBLIC OFFICIALS WHO CANNOT PRACTICE LAW OR WITH RESTRICTIONS

agency, or instrumentality of the government is the adverse party;

E.2.A. ABSOLUTE PROHIBITION (1) Judges and other officials or employees of superior courts as [Sec. 35, Rule 148];

b. Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office;

(2) Officials and employees of the Office of the Solicitor General [Sec. 35, Rule 148];

c. Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and

(3) Government prosecutors [Lim-Santiago v. Sagucio, A.C. 6705 (2006)]; (4) President, vice-president, cabinet members, their deputies and assistants [Sec. 15, Art. VII, Consti];

d. Use property and personnel of the government except when the sanggunian member concerned is defending the interest of the government [Sec. 90(b), RA 7160].

(5) Chairmen and members of constitutional commissions [Sec. 2, Art. IX-A, Consti]; (6) Members of the Judicial Bar Council [Sec. 2, Art. IX-A, Consti]; (7) Ombudsman and his deputies [Sec. 8 (2), Art. X, Consti]; (8) All governors, city and municipal mayors [Sec. 90(a), RA 7160]; (9) Civil service officers or employees whose duties require them to devote their entire time at the disposal of the government [Catu v Rellosa, A.C. 5738 (2008)]; (10) Those who, by special law, are prohibited from engaging in the practice of their legal profession. E.2.B. RELATIVE PROHIBITION (1) No senator or member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasijudicial and other administrative bodies [Sec. 14, Art. VI, 1987 Consti]; a. The word “appearance” includes not only arguing a case before any such body but also filing a pleading on behalf of a client [Ramos v Manalac, G.R. L-2610 (1951)]. (2) Sanggunian members may practice law except during session hours and provided they shall not: a. Appear as counsel before any court in any civil case wherein a local government unit or any office,

E.2.C. SPECIAL RESTRICTIONS Under Sec. 1, RA 910, the pension of justices therein is provided with a condition that no retiring justice, during the time that he is receiving said pension shall: (1) Appear as counsel before any court in any civil case wherein the Government or any subdivision or instrumentality thereof is the adverse party; (2) In any criminal case wherein and officer or employee of the government is accused of an offense committed in relation to his office; or (3) Collect any fee for his appearance in any administrative proceedings to maintain an interest adverse to the Government, insular, provincial or municipal, or to any of its legally constituted officers.

F. LAWYERS AUTHORIZED REPRESENT THE GOVERNMENT

TO

Any person appointed to appear for the Government of the Philippines shall be allowed to appear in court, subject to pertinent laws.

G. LAWYER’S OATH An applicant who has passed the required examination, or has been otherwise found to be entitled to admission to the bar, shall take

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and subscribe before the Supreme Court the corresponding oath of office [Sec. 17, Rule 138]. 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 be faster, fairer and easier for everyone concerned [In re: Argosino, A.M. 712 (1997)]. I, ___________________, do solemnly swear that: I will maintain allegiance to the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; 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 fidelity as well to the courts as to my clients; and I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God.

LEGAL AND JUDICIAL ETHICS

III. Duties and Responsibilities of a Lawyer A. IN GENERAL Under the Rules of Court, it is the duty of an attorney: (1) To maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines; (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 charge; (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;

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(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 [Sec. 20, Rule 138].

B. TO SOCIETY B.1. 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 and legal process. Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. NOTE: Canon 1 = 3rd top source of Qs on CPR. It was asked 18 times in the last 20 years as of 2014 [Lex Pareto (2014 ed)] UNLAWFUL CONDUCT An unlawful conduct is act or omission which is against the law. Dishonesty involves lying or cheating [Agpalo (2004)] IMMORAL AND GROSSLY CONDUCT DISTINGUISHED

IMMORAL

Immoral conduct involves acts that are willful, flagrant, or shameless, and that show a moral indifference to the opinion of the upright and respectable members of the community. Immoral conduct is gross when it is so corrupt as to constitute a criminal act, or so unprincipled as to be reprehensible to a high degree, or when committed under such scandalous or revolting circumstances as to shock the community’s sense of decency. The Court makes these distinctions, as the supreme penalty of disbarment from conduct requires grossly immoral, not simply immoral, conduct. [Perez v. Catindig, A.C. No. 5816 (2015)]

LEGAL AND JUDICIAL ETHICS

A lawyer may not be disciplined for failure to pay her obligation [Toledo v. Abalos, 315 SCRA 419 (1999)], but unwarranted obstinacy in evading the payment of a debt has been considered as a gross misconduct. [Constantino v. Saludares, 228 SCRA 233 (1993)]. However, issuance of bouncing checks reflects on the lawyer’s moral character and he may be disciplined. [Lex Pareto, Bar 2001, 2002] A lawyer is obligated to promote respect for legal processes. This includes order of the commission on Bar discipline of the IBP. (The lawyer’s oath likewise says, “I will obey the duly constituted authorities.”) [Lex Pareto, Bar 2002] GROSSLY IMMORAL ACTS (1) Wanton disregard for the sanctity of marriage as shown when the lawyer pursued a married woman and thereafter cohabited with her [Guevarra v. Eala, A.C. No. 7136 (2007)] (2) Rape of a neighbor’s wife, which constitutes serious moral depravity, even if his guilt was not proved beyond reasonable doubt in the criminal prosecution for rape [Calub v. Suller, A.C. No. 1474 (2000)] 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, SBC Case No. 519 (1997)] (2) Stealing a kiss from a client [Advincula v. Macabata, A.C. No. 7204 (2007)] MORAL TURPITUDE 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

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society in general [Barrios v. Martinez, A.C. No. 4585 (2004)].

action but ignorant of legal rights and court procedure.

Murder, estafa, rape, violation of BP 22, bribery, bigamy, adultery, seduction, abduction, concubinage and smuggling are considered crimes involving moral turpitude.

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, A.C. No. 4497 (2001)]

Rule 1.02. A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal profession. 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, G.R. No. 1203 (1903)] Rule 1.03. A lawyer shall not, for any corrupt motive or interest, encourage any suit or delay any man’s cause.

AMBULANCE CHASING AND BARRATRY DISTINGUISHED [Lex Pareto (2014)] AMBULANCE CHASING

BARRATRY

Refers to personal injury

Refers to any action

Refers to cases brought before judicial bodies

Refers to suits before judicial or nonjudicial bodies

BARRATRY OR “MAINTENANCE” The offense of inciting or stirring up quarrels, litigation or groundless lawsuits, either at law or otherwise [Bouvier] (1) Volunteering advice to bring lawsuits, except where ties of blood, relationship or trust make it a 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 AMBULANCE-CHASING Unethical practice of inducing personal injury victims to bring suits. The practice of lawyers in frequenting hospitals and homes of the injured to convince them to go to court [Lex Pareto (2014)] Accident-site solicitation of any kind of legal business by laymen employed by an attorney for the purpose or by the attorney himself. Supports perjury, the defrauding of innocent persons by judgments, upon manufactured causes of actions and the defrauding of injured persons having proper causes of

Rule 1.04. A lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement. 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 (2004)]. It is the duty of a counsel to advise his client, ordinarily a layman to the intricacies and vagaries of the law, on the merit or lack of merit of his case. If he finds that his client's cause is defenseless, then it is his bounden duty to advise the latter to acquiesce and submit, rather than traverse the incontrovertible. A lawyer must resist the whims and caprices of his client, and temper his client’s propensity to litigate. A lawyer's oath to uphold the cause of justice is superior to his duty to his client; its primacy is indisputable [Castañeda v. Ago, G.R. No. L28546 (1975)]

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B.2. EFFICIENT, CONVENIENT LEGAL SERVICES 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. NOTE: Asked 4 times in the last 20 years as of 2014 [Lex Pareto (2014 ed)] Membership in the bar is a privilege burdened with conditions. It could be that for some lawyers, especially the neophytes in the profession, being appointed counsel de oficio is an irksome chore. For those holding such belief, it may come as a surprise that counsel of repute and of eminence welcome such an opportunity. It makes even more manifest that law is indeed a profession dedicated to the ideal of service and not a mere trade. It is understandable then why a high degree of fidelity to duty is required of one so designated. [Ledesma v. Climaco, G.R. No. L-23815 (1974)]

LEGAL AND JUDICIAL ETHICS

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 (2004)] Rule 2.03. A lawyer shall not do or permit to be done any act designed to primarily solicit legal business. A well-known lawyer has been engaged to run a program in which he encourages indigent party litigants to consult him free of charge about their legal problems over a radio and television network. Has he violated any ethical rules? – YES, as it involves indirect advertising and solicitation and is likewise violative of the confidentiality of lawyer-client relationship. His act may also be considered as a form of self-praise hence subject to discipline [In re: Tagorda, 53 Phil 37, cited in Lex Pareto (2014); Unsangan v. Tolentino, 598 SCRA 133 (2009)] Law 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;

Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. [Sec. 11, Art. III, 1987 Consti]

(2) Duty of public service;

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].

(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 (2004)]

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. Advice may be on what preliminary steps to take until the client has secured the services of counsel. But he shall refrain from giving

(3) Relation to clients with the highest degree of fiduciary;

Thus, the practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice [Sec. 27, Rule 138]. Rule 2.04. A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant.

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Reason for rule 2.04 is that the practice of law is profession and not a trade. It is improper to lower your legal rates just because another lawyer has offered a lower legal fee. [Lex Pareto (2014)]

(c) Address; (d) Phone numbers; (e) Branches of law practiced; (f) Birthday;

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 (2004)]

(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;

B.3. TRUE, HONEST, FAIR, DIGNIFIED & 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. 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. NOTE: Canon 3 = 5th top source of Qs on CPR. Asked 12 times in the last 20 years as of 2014 [Lex Pareto (2014 ed)] The most worthy and effective advertisement possible, even for a young lawyer, and especially with his brother lawyers, is the establishment of a well-merited reputation for professional capacity and fidelity to trust. This cannot be forced, but must be the outcome of character and conduct [Canon 27, Canons of Professional Ethics; In re: Tagorda, G.R. No. 32329, (1929)]. ALLOWABLE ADVERTISEMENT (1)

(o) Legal fraternities and societies; (p) References and regularly represented clients must be published for that purpose [Ulep v. The Legal Clinic, Inc., B.M. No. 553 (1993)]; (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;

(8) Activity of an association for the purpose of legal representation. The law list must be a reputable law list published primarily for that purpose; it cannot be a mere supplemental feature of a paper, magazine, trade journal or periodical which is published primarily for other purposes.

Ordinary simple professional card;

(2) Publication in reputable law list with brief biographical and other informative data which may include: (a) Name;

ENTERING INTO OTHER BUSINESSES For it to constitute as inconsistent with the lawyer’s profession, it is advisable that they be entirely separate and apart such that a

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layman could distinguish between the two functions. The lawyer must make it clear to his client whether he is acting as a lawyer or in another capacity. PROHIBITED ADVERTISEMENTS [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 selflaudation. 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, A.C. 5299 (2003)]. 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, supra]. In the last analysis, where to draw the line is a question of good faith and good taste.

LEGAL AND JUDICIAL ETHICS

Ratio: 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. 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 Philippines [Dacanay v. Baker and McKenzie, A.C. 2131 (1985)]. 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 concurrently. Purpose: To prevent the law firm from using his name to attract legal business and to avoid suspicion of undue influence. 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 (2004)]. 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, A.M. No. P-99-1292 (1999)]. 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 3.02. 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.

ABSOLUTE AND RELATIVE PROHIBITION OF PUBLIC OFFICIALS FROM PRACTICE OF LAW:

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 (2004)].

When any of those absolutely prohibited officials is appointed/elected/qualified, he ceases, as a general rule, to engage in the private practice of law and his right to

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practice is suspended during his tenure in office. 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. Purpose: To prevent some lawyers from gaining an unfair advantage over others through the use of gimmickry, press agentry or other artificial means. 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 2004]. It is bad enough to have such undue publicity when a criminal case is being investigated by the authorities, even when it is being tried in court; but when said publicity and sensationalism is allowed, even encouraged, when the case is on appeal and is pending consideration by this Tribunal, the whole thing becomes inexcusable, even abhorrent, and this Court, in the interest of justice, is constrained and called upon to put an end to it and a deterrent against its repetition by meting an appropriate disciplinary measure, even a penalty to the one liable. [Cruz v. Salva, G.R. No. L-12871 (1959)] B.4 PARTICIPATION IN THE IMPROVEMENT AND REFORMS IN THE LEGAL SYSTEM 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. NOTE: Asked 2 times in the last 20 years as of 2014 [Lex Pareto (2014 ed)]

LEGAL AND JUDICIAL ETHICS

EXAMPLES (1) Presenting position papers or resolutions for the introduction of pertinent bills in Congress; (2) Submitting petitions to the Supreme Court for the amendment of the Rules of Court. The Misamis Oriental Chapter of the IBP has been commended by the Supreme Court when it promulgated a resolution wherein it requested the IBP’s National Committee on Legal Aid 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 NCLA to Exempt Legal Aid Clients from Paying Filing, Docket and Other Fees (2009)]. B.5. 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 information regarding the law and jurisprudence. Bar Matter No. 850 (Dated Feb. 15, 2015. Effective Mar. 1, 2015) Re: Rules on Mandatory Continuing Legal Education for Active Members of the Integrated Bar of the Philippines xxx The Court Resolved to REQUIRE all members of the Integrated Bar of the Philippines to file a written entry of appearance indicating their MCLE exemption or compliance number for the current or immediately preceding compliance period and date of issuance thereof before appearing as counsel or engaging in oral argument in open court or before a quasijudicial body. However, counsels who affixed their signatures in their pleadings and indicated their MCLE exemption or compliance number in their pleadings need not file a separate entry of appearance. Henceforth, all counsels, including partners of law firms whose names appear in the said

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pleadings, shall also indicate their MCLE exemption or compliance number. This resolution shall take effect on March 1, 2015 following its publication in a newspaper of general circulation." MANDATORY CONTINUING EDUCATION (MCLE) PROGRAM

LEGAL

A program which requires lawyers to show proof of having undertaken improvement in their knowledge as a precondition for renewing their license to practice [Lex Pareto (2014)] There is no doubt that Atty. Flores failed to obey the trial court’s order to submit proof of his MCLE compliance notwithstanding the several opportunities given him. "Court orders are to be respected not because the judges who issue them should be respected, but because of the respect and consideration that should be extended to the judicial branch of the Government. This is absolutely essential if our Government is to be a government of laws and not of men. Respect must be had not because of the incumbents to the positions, but because of the authority that vests in them. Disrespect to judicial incumbents is disrespect to that branch the Government to which they belong, as well as to the State which has instituted the judicial system." [Rodriguez-Manahan v. Flores, A.C. No. 8954 (2013)] APPLICABILITY TO GOVERNMENT LAWYERS Canon 6. These canons shall apply to lawyers in government service in the discharge of their official duties. NOTE: Asked 5 times in the last 20 years as of 2014 [Lex Pareto (2014 ed)] Ratio: The rule is a reiteration of the principal in public law, which is that a public office is a public trust and a public servant owes utmost fidelity to the public service. A member of the bar who assumes public office does not shed his professional obligation. Lawyers in government are public servants who owe the utmost fidelity to the

LEGAL AND JUDICIAL ETHICS

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, A.C. 4984 (2003)]. May a former government lawyer appear in a case against the government? – YES, he may appear in a case unless there is a specific ethical rule or provision of law which prohibits him from doing so. [Lex Pareto (2014 ed)] When may a former government lawyer be prohibited from accepting a legal engagement? [Lex Pareto (2014 ed)] a. A lawyer shall not after leaving the government service accept engagement or employment in connection with any matter in which he had intervened while in said service; b. Retired members of the judiciary receiving pensions form the government should not practice law where the government is the adverse party or in a criminal case involving a government employee in the performance of his duties as such 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. A public prosecutor is a quasi-judicial officer with the two-fold aim which is that guilt shall not escape or innocence suffers. He should not hesitate to recommend to the court the acquittal of an accused if the evidence in his possession shows that the accused is innocent [Agpalo (2004)]. In criminal cases, a public prosecutor should be present for the following reasons: [Lex Pareto (2014 ed)]

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1.

To protect the interest of the State (As the criminal case is in reality a crime against the State)

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2. To see to it that justice is done (Rule 6.01) Naturally, the private prosecutor is interested only to convict the accused. However, the primary duty of the public prosecutor is not to convict, but to see that justice is done. A prosecuting attorney, by the nature of his office, is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to prop up the averments thereof, or that the evidence at hand points to a different conclusion. This is not to discount the possibility of the commission of abuses on the part of the prosecutor. But we must have to recognize that a prosecuting attorney should not be unduly compelled to work against his conviction. In case of doubt, we should give him the benefit thereof. A contrary rule may result in our courts being unnecessarily swamped with unmeritorious cases. Worse still, a criminal suspect's right to due process - the sporting idea of fair play - may be transgressed. So it is, that in People vs. Sope, this Court made the pronouncement that "[i]t is very logical that the prosecuting attorney, being the one charged with the prosecution of offenses, should determine the information to be filed and cannot be controlled by the offended party." [People v. Pineda, G.R. No. L-26222 (1967)] Rule 6.02. A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties.

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professional obligations as their disreputable conduct is more likely to be magnified in the public eye [Huyssen v. Gutierrez, A.C. 6707 (2006)]. Sec. 7 of RA 6713 generally provides for the prohibited acts and transactions of public officials and employees. Sec. 7(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. The prohibitions continue to apply for a period of one year after the public official or employee’s resignation, retirement, or separation from public office, except for the private practice of profession under subsection (b)(2), which can already be undertaken even within the one-year prohibition period. As an exception to this exception, the one-year prohibited period applies with respect to any matter before the office the public officer or employee used to work with. [Query of Karen Silverio-Buffe, 596 SCRA 378 (2009)]. Rule 6.03. A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service. HOW GOVERNMENT LAWYERS MAY LEAVE GOVERNMENT SERVICE: (RREAD)

In relation to Rule 3.03, Canon 3, 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 (2004)]. It bears stressing also that government lawyers who are public servants owe fidelity to the public service, a public trust. As such, they should be more sensitive to their

(1) Retirement; (2) Resignation; (3) Expiration of the term of office; (4) Abandonment; (5) Dismissal General rule: Practice of profession is allowed immediately after leaving public service. Exceptions: The lawyer cannot practice as to matters with which he had connection during his term. This prohibition lasts:

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(1) For one year, if he had not intervened;

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upgrading of the standards of the legal profession, and its proper regulation.

(2) Permanently, if he had intervened. The “matter” contemplated are those that are adverse-interest conflicts (substantial relatedness and adversity between the government matter and the new client’s matter in interest) and congruent-interest representation conflicts. “Intervention” should be significant and substantial which can or have affected the interest of others [PCGG v. Sandiganbayan, G.R. Nos. 15180912 (2005)].

C. TO THE LEGAL PROFESSION C.1. INVOLVEMENT IN THE IBP 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.

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, A.M. 491 (1989)]. ii. General Objectives of the IBP (1) To elevate the standards of the legal profession; (2) To improve the administration of justice;

i. Bar Integration 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. [Sec. 1, RA 6397]. 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 uncohesive group of which every lawyer is already a member [In the matter of the IBP, 49 SCRA 22 (1973)]. 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

(3) To enable the bar to discharge its public responsibility more effectively. iii. Purposes of the IBP (1) To assist in the administration of justice; (2) To foster and maintain on the part of its members high ideals of integrity, learning, professional competence, public service and conduct; (3) To safeguard the professional interest of its members; (4) To cultivate among its members a spirit of cordiality and brotherhood; (5) To 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) To encourage and foster legal education; (7) To promote a continuing program of legal research in substantive and adjective law, and make reports and recommendations thereon.

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[Note: Purposes of the IBP is one of the favorite questions asked in the Bar. – Faculty Ed.]

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such case, his membership in the IBP could have been terminated and his obligation to pay dues discontinued [Letter of Atty. Arevalo, B.M. 1370 (2005)].

iv. Mem bership and Dues RoC, Rule 139-A, Sec. 9. Every member of the IBP 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 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. RoC, Rule 139-A, Sec. 10. Default in the payment of annual dues: (1) For six months shall warrant suspension of membership in the IBP; and (2) For one year shall be a ground for the removal of the name of the delinquent member from the roll of attorneys. A membership fee in the IBP 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 IBP, 49 SCRA 22 (1973)]. A lawyer can engage in the practice of law only by paying his dues, and it does not matter if his practice is “limited.” Moreover, senior citizens are not exempted from paying membership dues [Santos v. Llamas, A.C. 4749 (2000)]. In a case involving a Filipino lawyer staying abroad, the Supreme Court said that there is nothing in the law or rules, which allows his exemption from payment of membership dues. At most, he could have informed the Secretary of the Integrated Bar of his intention to stay abroad before he left. In

C.2. UPHOLDING THE DIGNITY & INTEGRITY OF THE PROFESSION 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. 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. 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 [Young v. Batuegas, A.C. 5379 (2003)]. PENALTIES (1) Disqualification of the applicant from taking the bar, if the concealment is discovered before he takes the bar examinations; (2) Prohibition from taking the lawyer’s oath, if the concealment is discovered after the candidate has taken the bar examinations; (3) Revocation of license to practice, if the concealment was discovered after he has taken his lawyer’s oath [In re: Diao, A.C. 244 (1963)]. 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, A.C. 2505 (1992)]. It is the fact of concealment and not the commission of the crime itself that makes

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him morally unfit to become a lawyer. [In Re: Galang, A.M. 1162 (1975)] Rule 7.02. A lawyer shall not support the application for admission to the bar of any person known by him to be unqualified in respect to character, education, or other relevant attribute. 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, G.R. 082027 (1948)]. 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 (2004)]. 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. It is not necessary for a lawyer to be convicted for an offense before a lawyer can be disciplined for gross immorality [Agpalo (2004)]. There is no distinction as to whether the transgression is committed in the lawyer’s professional capacity or in his private life or in his private transaction because a lawyer may not divide his personality so as to be an attorney at one time and a mere citizen at another [Funa].

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ACTS ADVERSELY REFLECTIVE OF A LAW YER’S FITNESS TO PRACTICE LAW : (1) Having adulterous keeping mistresses;

relationships

or

(2) Siring a child with a woman other than legal wife [Zaguirre v. Castillo, A.C. 4921 (2003)]; (3) Conviction of moral turpitude;

a

crime

involving

(4) Commission of fraud or falsehood. To justify suspension or disbarment, the act must not only be immoral, it must be grossly immoral as well. A grossly immoral act is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree. [Reyes v. Wong, A.M. 547 (1975)] Mere intimacy between a man and a woman, either of whom possesses no legal impediment to marry, voluntarily carried on and devoid of any deceit on the part of the lawyer, is neither so corrupt nor so unprincipled as to warrant imposition of disciplinary sanction against him, even if as a result, the woman begot a child [Soberano v. Villanueva, A.C. 215 (1962)]. The term “moral turpitude” means anything which is done contrary to justice, honesty, modesty or good morals, or to any act of vileness, baseness or depravity in the private and social duties that a man owes his fellowmen or to society, contrary to the accepted rule between man and man. [In re Gutierrez, G.R. L-363 (1962)] In general, all crimes of which fraud and deceit is an element or those which are inherently contrary to rules of right, conduct, honesty or morality in a civilized community, involve moral turpitude. [Agpalo (2004)] C.3. COURTESY, FAIRNESS & CANDOR TOWARDS PROFESSIONAL COLLEAGUES Canon 8. A lawyer shall conduct himself with courtesy, fairness and candor toward his professional colleagues, and shall avoid harassing tactics against opposing counsel.

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LAWYER DON’Ts:

IMPROPER LANGUAGE

(1) Take advantage of the excusable unpreparedness or absence of counsel during the trial of a case;

(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, G.R. No. 133090 (2001)];

(2) Make use, to his or to his client’s benefit, the secrets of the adverse party acquired through design or inadvertence; (3) Criticize or impute ill motive to the lawyer who accepts what in his opinion is a weak case; (4) Proceed to negotiate with the client of another lawyer to waive all kinds of claim when the latter is still handling the civil case [Camacho v. Pangulayan, A.C. 4807 (2000)]. (5) Steal another lawyer’s client; (6) Induce a client to retain him by promise of better service, good result or reduced fees for his services; (7) Disparage another lawyer, make comparisons or publicize his talent as a means to further his law practice; (8) 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 the adverse party was willing; (9) 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. Rule 8.01. A lawyer shall not, in his professional dealings, use language, which is abusive, offensive or otherwise improper. 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, A.M. 1302 (1991)].

(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, A.C. 5148 (2003)]; (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, A.C. 2339 (1984)]. (4) Stating that “justice is blind and also “deaf and dumb”” [In Re: Almacen, G.R. L-27654(1970)]. The highest reward that can come to a lawyer is the esteem of his professional brethren. That esteem is won in unique conditions and proceeds from an impartial judgment in professional trials. It cannot be purchased. [Agpalo (2004)] Lack or want of intention is no excuse for the disrespectful language employed. Counsel cannot escape responsibility by claiming that his words did not mean what any reader must have understood them as meaning [Rheem of the Philippines v Ferrer, G.R. L-22979 (1967)]. 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. A LAWYER MAY: (1) Accept employment to handle a matter previously handled by another lawyer:

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, G.R. L- 27072 (1970)]. PAGE 24 OF 104

(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, A.M. 219 (1962)]; or

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(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; or (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) 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. ILLEGAL PRACTICE OF LAW EXAMPLES

(2) Give advice or assistance to any person who seeks relief against an unfaithful or neglectful lawyer;

(1) Appearing as counsel even before taking lawyer’s oath [Aguirre v. Rana, B.M. 1036 (2003)];

(3) Associate as a colleague in a case, provided he communicate with the original counsel before making an appearance as co-counsel:

(2) Using the title “Attorney” in his name even though he is a Shari’a lawyer [Alawi v. Alauya, A.M. SDC-97-2-P (1997)].

(a) Should the original lawyer object, he should decline association but if the original lawyer is relieved, he may come into the case; (b) Should it be impracticable for him, whose judgment has been overruled by his co- counsel to cooperate effectively, he should ask client to relieve him. C.4. NO ASSISTANCE IN UNAUTHORIZED PRACTICE OF LAW

A corporation cannot engage in the practice law directly or indirectly. It may only hire inhouse 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. NOT ALLOW ED: (1) Automobile club that solicits membership by advertising that it offers free legal services of its legal department to members;

Canon 9. A lawyer shall not, directly or indirectly, assist in the unauthorized practice of law. Generally, to engage in the practice of law is to do any of those acts which are characteristic of the legal profession. It embraces any activity, in or out of court, which requires the application of law, legal principle, practice or procedure or calls for legal knowledge, training and experience. [Philippine Lawyers Ass’n v. Agrava, G.R. L12426 (1959)] EXAMPLES OF PRACTICE OF LAW (1) Legal advice and instructions to clients to inform them of their rights and obligations;

(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. Unauthorized practice of law applies to both non-lawyers and lawyers prohibited from the private practice of law. The practice of law is not a natural, property or constitutional right but a mere privilege [In Re Edillon, A.M. 1928 (1978)]. The purpose is to protect the public, the court, the client and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the court [Phil. Assoc. of Free Labor Union v.

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Binalbagan Isabela Sugar Co., G.R. L-23959 (1971)].

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Rule 9.02. A lawyer shall not divide or stipulate to divide a fee for legal services with persons not licensed to practice law, except: (a) Where there is a pre-existing agreement with a partner or associate that, upon the latter’s death, money shall be paid over a reasonable period of time to his estate or to persons specified in the agreement; or

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.

(b) Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; or

Ratio: 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. Lawyers are selected on account of their special fitness through their learning or probity for the work at hand. ACTS THAT MAY ONLY BE DONE BY A LAWYER (1) The computation and determination of the period within which to appeal an adverse judgment [Eco v. Rodriguez, G.R. L-16731 (1960)]; (2) The examination of witnesses or the presentation of evidence [Robinson v. Villafuerte, G.R. L-5346 (1911)]. MAY BE DELEGATED TO NON-LAWYERS: (1) The examination of case law; (2) Finding and interviewing witnesses; (3) Examining court records; (4) Delivering papers and similar matters.

(c) Where a lawyer or law firm includes nonlawyer employees in a retirement plan, even if the plan is based in whole or in part, on a profitable sharing arrangement. Ratio: 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. 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 this rule, and is illegal and immoral [Amalgamated Laborers Assn. v. CIR, G.R. L-23467 (1968)]. 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, G.R. L-24864 (1965)]. 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, A.C. 1261 (1983)]. While non-lawyers may appear before the NLRC or any labor arbiter, 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

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for the services they have rendered presupposes the existence of an attorneyclient relationship. Such a relationship cannot exist when the client’s representative is a non-lawyer [Five J Taxi v. NLRC, G.R. 111474 (1994)].

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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]. Some cases of Falsehood Committed by Lawyers:

D. TO THE COURTS

1.

D.1. CANDOR, FAIRNESS & GOOD FAITH TOWARDS THE COURTS Canon 10. A lawyer owes candor, fairness and good faith to the court.

2. Falsifying a power of attorney to in collecting the money due to principal and appropriating money for his own benefit [In Rusiana, A.C. 270 (1959)];

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, G.R. L-22320 (1968)].

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, A.C. 5379 (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. 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

use the the Re:

3. Denying having received the notice to file brief which is belied by the return card [Ragasajo v. IAC, G.R. L-69129 (1987)]; 4. Presenting falsified documents in court which he knows to be false [Bautista v. Gonzales, A.M. 1625 (1990)];

Candor in all of the lawyer’s dealings is the very essence of honorable membership in the legal profession [Cuaresma v. Daquis, G.R. L35113 (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 complete candor and honesty before the courts [Serana v. Sandiganbayan, G.R. 162059 (2008)].

Falsely stating in a deed of sale that property is free from all liens and encumbrances [Sevilla v. Zoleta, 96 Phil 979 (1955)];

5. Filing false charges or groundless suits [Retia v. Gorduiz, A.M. 1388 (1980)]. 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 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 this rule [COMELEC v. Noynay, G.R. 132365 (1998)].

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It is the bounden duty of courts, judges and lawyers to reproduce or copy the same wordfor-word and punctuation mark-forpunctuation mark the decisions of the Supreme Court. Ever present is the danger that if not faithfully and exactly quoted, the decisions and rulings 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, G.R. L-25291 (1971)]. 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, G.R. 100643 (1992)]. Rule 10.03. A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice. 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, A.C. 6323 (2007)]. 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, A.C. 3923 (1993)]. D.2. RESPECT FOR COURTS & JUDICIAL OFFICERS 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.

LEGAL AND JUDICIAL ETHICS

Observing respect due to the courts means that a lawyer should conduct himself toward judges: (1) With courtesy everyone is entitled to expect [Paragas v Cruz, G.R. L-24438 (1965)]; (2) With the propriety and dignity required by the courts [Salcedo v Hernandez, G.R. L42992 (1935)]. Lawyers are duty bound to uphold the dignity and authority of the Court to promote the administration of justice. Respect to the courts guarantees the stability of other institutions. [In re: Sotto, 82 Phil 595 (1949)]. 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 of Atty. Sorreda, A.M. 5-3-04 (2006)]. Liberally imputing sinister and devious motives and questioning the impartiality, integrity, and authority of the members of the Court result in the obstruction and perversion of the dispensation of justice [Estrada v. Sandiganbayan, G.R. 148560 (2000)]. Even as lawyers passionately and vigorously propound their points of view, they are bound by certain rules of conduct for the legal profession. This Court is certainly not claiming that it should be shielded from criticism. All the Court demands are the same respect and courtesy that one lawyer owes to another under established ethical standards. There is no exemption from this sworn duty for law professors, regardless of their status in the academic community or the law school to which they belong [Re: Letter of the UP Faculty, A.M. 10-10-4-SC (2011)]. 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

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lawyer and demeans the dignity solemnity of court proceedings.

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and

Mineral Reservation Board v. Cloribel, G.R. L27072 (1970)].

A lawyer who dresses improperly may be cited with contempt [Agpalo (2004)].

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, G.R. L-33720 (1975)].

PROPER ATTIRE Male: Long-sleeved Barong Tagalog or coat and tie Female: Semi-formal or business attires Judges: Same attire as above under their robes 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 (2006)] Rule 11.02. A lawyer shall punctually appear at court hearings. Punctuality is demanded by the respect which the lawyer owes to the court, the parties, and the opposing counsel [Funa]. 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 (2004)]. Non-appearance at hearings on the ground that the issue to be heard has become moot and academic is a lapse in judicial propriety [De Gracia v. Warden of Makati, G.R. L-42032 (1976)]. Rule 11.03. A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the courts. 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

However, the use of abusive language by counsel against the opposing counsel constitutes at the same time 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, G.R. 106719 (1993)]. Lawyers cannot resort to scurrilous remarks that have the tendency to degrade the courts and destroy the public confidence in them [In Re: Almacen, G.R. L-27654 (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, G.R. 71169 (1988)]. Rule 11.04. A lawyer shall not attribute to a Judge motives not supported by the record or have no materiality to the case. Such act would undermine the confidence of the people in the honesty and integrity of the members of the court, and would consequently lower or degrade the administration of justice [In Re: Almacen, G.R. L-27654 (1970)]. The rule allows 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 (2004)]. 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, G.R. 79690-707 (1989)].

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Any serious accusation against a judicial officer that is utterly baseless, unsubstantiated and unjustified shall not be countenanced [Go v. Abrogar, G.R. 152672 (2007)]. 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, A.C. 10-10-4-SC (2011)]. Rule 11.05. A lawyer shall submit grievances against a Judge to the proper authorities only. The duty to respect does not preclude a lawyer from filing administrative complaints against erring judges.

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All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. [Sec.6, Art. III, 1987 Constitution] It is the duty of an attorney 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. [Sec. 20(g), Rule 138]. 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, A.C. 5653 (2006)]. 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.

Can still act as counsel for clients who have legitimate grievances against them. However, 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 (2004)].

Without adequate preparation, the lawyer may not be able to effectively assist the court in the efficient administration of justice. NON-OBSERVANCE OF PREPARATION:

It has been held in Maceda v. Vasquez that in criminal complaints against a judge or other court employees arising from their administrative duties, the Ombudsman must defer action and refer the same to the Supreme Court 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, in violation of the doctrine of separation of powers. D.3. ASSISTANCE IN THE SPEEDY & EFFICIENT ADMINISTRATION OF JUSTICE Canon 12. A lawyer shall exert every effort and consider it his duty to assist in the speedy and efficient administration of justice.

(1) The postponement of the pre-trial or hearing, which would thus entail delay in the early disposition of the case; (2) The judge may consider the client nonsuited or in default; (3) The judge may consider the case deemed submitted for decision without client’s evidence, to his prejudice [Agpalo (2004)]. 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 (1988)]. 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, G.R. L-34369 (1974)].

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Some Acts Which Amount to Obstruction in the Administration of Justice: 1.

(2) The institution of involving the same parties for the same cause of action, either simultaneously or successively, on the supposition that one or the other court would come out with a favorable disposition [Araneta v. Araneta, G.R. 190814 (2013)].

Inadequate preparation;

2. Instructing complaining witness in a criminal action not to appear at the schedule hearing so that the case against the client would be dismissed; 3. Asking a client to plead guilty to a crime which the lawyer knows his client did not commit; 4. Advising a client who is detained for crime to escape from prison; 5. Employing dilatory tactics to frustrate satisfaction of clearly valid claims;

An indicium of the presence of, or the test for determining whether a litigant violated the rule against, forum shopping is where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in the other case. REQUISITES OF LITIS PENDENTIA (1) Identity of parties, or at least such parties as represent the same interests in both actions;

6. Prosecuting clearly frivolous cases or appeals to drain the resources of the other party and compel him to submit out of exhaustion;

(2) Identity of rights asserted and relief prayed for, the relief being founded on the same facts; and

7. Filing multiple petitions or complaints for a cause that has been previously rejected in the false expectation of getting favorable action;

(3) Identity of the two preceding particulars is such that any judgment rendered in the pending case, regardless of which party is successful, would amount to res judicata in the other [HSBC v. Catalan, G.R. 159590 (2004)].

8. Other acts of similar nature [Funa]. Rule 12.02. A lawyer shall not file multiple actions arising from the same cause.

RES JUDICATA REQUIRES THAT: (1) There be a decision on the merits;

Ratio: 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 appropriate disciplinary action or render him liable for the costs of litigation [Agpalo].

(2) It be decided by a court of competent jurisdiction; (3) The decision is final; and (4) The two actions involved identical parties, subject matter, and causes of action. CONTENTS OF CERTIFIED COMPLAINT:

CIRCUMSTANCE OF FORUM SHOPPING (1) When, as a result or in anticipation of an adverse decision in one forum, a party seeks a favorable opinion in another forum through means other than appeal or certiorari by raising identical causes of action, subject matter and issues. PAGE 31 OF 104

(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;

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(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 days there from to the court wherein his aforesaid complaint or initiatory pleading has been filed. Rules of Court, Rule 7, Sec. 5. Failure to comply with the foregoing requirements shall not be curable by mere 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. SUBMISSION OF A FALSE CERTIFICATION OR NON-COMPLIANCE WITH ANY OF THE UNDERTAKINGS IN A CERTIFICATION OF NON-FORUM SHOPPING: (1) Shall constitute indirect contempt of court; (2) Without prejudice to the corresponding administrative and criminal actions. IF ACTS OF THE PARTY OR HIS COUNSEL CONSTITUTE WILLFUL AND DELIBERATE FORUM SHOPPING: (1) Be a ground for summary dismissal with prejudice; (2) Constitute direct contempt; (3) Be a cause for administrative sanctions. 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 (2004)]. It is the duty of the lawyer to resist the whims and caprices of his client and to temper his client’s propensity to litigate. [Castañeda v. Ago, G.R. L-28546 (1975)]. 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

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explanation for his failure to do so. 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. CA, G.R. L35867 (1973)]. 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, A.C. 3736 (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, G.R. L27662 (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, G.R. 157911 (2006)]. If a lawyer is honestly convinced of the futility of an appeal in a civil suit, he should not hesitate to inform his client. He should advise his client to accept the judgment of the trial court and thus accord respect to the just claim of the opposite party. [Agpalo (2001)] 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

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(3) Not to be examined except as to matters pertinent to the issues before the court;

examination.

(4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law;

Ratio: 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]. Rule 12.06. A lawyer shall not knowingly assist a witness to misrepresent himself or to impersonate another. Art. 184, RPC. 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. Subornation of perjury is committed by a person who knowingly and willfully procures another to swear falsely and the witness suborned [or induced] does testify under circumstances rendering him guilty of perjury [US v. Ballena, G.R. L-6294 (1911)]. Rule 12.07. A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him. It is the duty of a lawyer to abstain from all offensive personality and to advance no fact prejudicial to the honor and reputation of a party or witness unless required by the justice of the cause with which he is charged [Sec 20(f), Rule 138].

(5) 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. PD 1829 PENALIZES THE FOLLOWING: (1) 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 investigation of or in official proceedings in, criminal cases; (2) 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. 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.

RIGHTS OF WITNESSES [Sec. 3, Rule 132] (1) To be protected from irrelevant, improper or insulting questions and from a harsh or insulting demeanor; (2) Not to be detained longer than the interests of justice require

Ratio: The underlying reason for the impropriety of a lawyer acting in such dual

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capacity lies in the difference between the function of a witness and that of an advocate. The function of a witness is to tell the facts as he recalls then in answer to questions. The function of an advocate is that of a partisan. 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]. 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, G.R. L-35252 (1932)]. D.4. RELIANCE ON MERITS OF HIS CAUSE & AVOIDANCE OF ANY IMPROPRIETY WHICH TENDS TO INFLUENCE OR GIVES THE APPEARANCE OF INFLUENCE UPON THE COURTS 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. 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. [Canon 3]. 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].

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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, G.R. L-22536 (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. Ratio: Newspaper publications regarding a pending or anticipated litigation may interfere with a fair trial, prejudice the administration of justice, or subject a respondent or an accused to a trial by publicity and create a public inference of guilt against him [Agpalo]. Public statements may be considered contemptuous when the character of the act done and its direct tendency to prevent and obstruct the discharge of official duty. Once a litigation is concluded, the judge who decided it is subject to the same criticism as any other public official because then, his ruling becomes public property and is thrown open to public consumption. In a concluded litigation, a lawyer enjoys a wider latitude of comment or on criticism of the judge’s decision or actuation. [In re Gomez, 43 Phil 376 (1922)] In the original decision of the Supreme Court in Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases against Former President Joseph Estrada (2001), it was stated that the propriety of granting or denying the petition involve the weighing out of the constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and impartial trial. It was held that when these rights race against one another, the right of the accused must be preferred to win, considering the possibility of losing not only the precious liberty but also the very life of an accused.

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In the resolution of the motion for reconsideration, the Supreme Court allowed the video recording of proceedings, but provided that the release of the tapes for broadcast should be delayed. In so doing, concerns that those taking part in the proceedings will be playing to the cameras and will thus be distracted from the proper performance of their roles – whether as counsel, witnesses, court personnel, or judges – will be allayed. 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. Ratio: The rule is based upon the principle of separation of powers [Aguirre (2006)]. A complaint against justices cannot be filed with the Office of the President. [Maglasang v. People, G.R. No. 90083 (1990)]

LEGAL AND JUDICIAL ETHICS

E.1. AVAILABILITY OF SERVICE WITHOUT DISCRIMINATION Canon 14. A lawyer shall not refuse his services to the needy. i. Services Regardless of a Person’s Status 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. General Rule: A lawyer is not obliged to act as legal counsel for any person who may wish to become his client. He has the right to decline employment. Exceptions: (1) A lawyer shall not refuse his services to the needy [Canon 14] (2) A lawyer shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life, or because of his own opinion regarding the guilt of said person. [Rule 14.01]

E. TO THE CLIENTS The attorney-client relationship is:

(3) A lawyer may not refuse to accept representation of an indigent client unless:

(1) Strictly personal; (2) Highly confidential;

a. He is in no position to carry out the work effectively or competently;

(3) Fiduciary.

b. He labors under a conflict of interest between him and the prospective client or between a present client and the prospective client. [Rule 14.02]

A written contract, although the best evidence to show the presence of an attorney-client relationship is not essential for the employment of an attorney. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied. To establish the relation, it is sufficient that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession [Pacana v. Pascual-Lopez, A.C. No. 8243 (2009)].

(4) A lawyer may not refuse to accept representation of an indigent client unless:

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a. He is in no position to carry out the work effectively or competently; b. He labors under a conflict of interest between him and the prospective client or between a present client and the prospective client. [Rule 14.03]

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It is the duty of an attorney, 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 [Sec. 20(i), Rule 138] Ratio: 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 or Free Legal Assistance Act of 2010]. RA 9999 provides incentives for free legal service. Thus, a lawyer or professional partnerships rendering actual free legal services shall be entitled to an allowable deduction from the gross income, (1)

The amount that could have been collected for the actual free legal services rendered OR

(2)

Up to 10% of the gross income derived from the actual performance of legal profession, whichever is lower.

This is different from the 60-hour mandatory legal aid services under Bar Matter 2012. INDIGENT: (1) 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 [Sec. 2, RA 6033] (2) A person who has no visible means of support or whose income does not exceed P300.00 per month or whose income even in excess of P300.00 per month is insufficient for the subsistence of his family [Sec. 2, RA 6035] LAW S ON INDIGENTS INCOME LITIGANTS:

OR

LOW

(1) All courts shall give preference to the hearing and/or disposition of criminal cases where an indigent is involved either

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as the offended party or accused [Sec. 1, RA 6033] (2) 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 [Sec. 1, RA 6034]. (3) 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 [Sec. 1, RA 6035] ii. Services as Counsel de Oficio Rule 14.02. A lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de oficio or as amicus curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid. Rules of Court provides: (1) It is the duty of an attorney never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed [Sec. 20(h), Rule 138]; (2) A court may assign an attorney to render professional aid free of charge to any party in a case, if upon investigation it

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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 [Sec. 31, Rule 138]

assign a counsel de officio to defend him, [Sec. 6, Rule 116]; (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 Regional Trial Court, Court of Appeals or the Supreme Court to appoint a counsel de officio [Sec. 13, Rule 122]; (3) The clerk of the CA shall designate a counsel de oficio if it appears from the case record that:

Counsel de oficio - one appointed or assigned by the court. Counsel de parte- one employed or retained by the party himself.

(a) The accused is confined in prison,

W HO MAY BE APPOINTED COUNSEL DE OFICIO:

(c) Has signed the notice of appeal himself, the clerk of Court of Appeals shall designate a counsel de oficio.

(b) Is without counsel de parte on appeal, or

AS

(1) A member of the bar in good standing who, by reason of their experience and ability, can competently defend the accused; (2) In localities without lawyers: (a) Any person resident of the province and of good repute for probity and ability [Sec. 7, Rule 116]; (b) A municipal judge or a lawyer employed in any branch, subdivision or instrumentality of the government within the province [Sec. 1, PD 543].

An appellant who is not confined in prison may, upon request, be assigned a counsel de officio within ten days from receipt of the notice to file brief and he establishes his right thereto [Sec. 2, Rule 124] iii. Valid Grounds for Refusal Rule 14.03. A lawyer may not refuse to accept representation of an indigent client unless: (a) He is in no position to carry out the work effectively or competently;

CONSIDERATIONS IN THE APPOINTMENT OF A COUNSEL DE OFICIO:

(b) He labors under a conflict of interest between him and the prospective client or between a present client and the prospective client.

(1) Gravity of the offense; (2) Difficulty of the questions that may arise; (3) Experience and ability of the appointee. W HEN THE COURT MAY APPOINT A COUNSEL DE OFICIO (IN CRIMINAL ACTIONS): (1) Before arraignment, the court shall inform the accused of his right to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself in person or has employed counsel of his choice, the court must

A lawyer shall not decline an appointment as counsel de oficio 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. Reason: One of the burdens of the privilege to practice law is to render, when so required by the court, free legal services to an indigent litigant.

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Even if the lawyer does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary to safeguard the latter’s rights. [Rule 2.02, Canon 2]

Confidences of clients handled).

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, he is still bound to attend to a client’s case with all due diligence and zeal. [Blanza v. Arcangel, A.C. No. 492 (1967)] E.2. CANDOR, FAIRNESS AND LOYALTY TO CLIENTS Canon 15. A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his clients. i. Confidentiality Rule

Secrets of clients disclosure of which would be embarrassing or would likely be detrimental to the client (i.e., information not exactly pertinent to the case).

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. Question of privilege is determined by the court. The burden of proof is on the party who asserts the privilege. Canon 21 enjoins a lawyer to preserve the confidence and secrets of his client even after the attorney-client relation is terminated. ii. Privileged Com m unications

Purpose: To protect the client from possible breach of confidence as a result of a consultation with a lawyer [Hadjula v. Madianda, A.C. No. 6711 (2007)] Confidential com m unicationinformation 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 [Mercado v. Vitriolo, A.C. No. 5108 (2005)]. Confidences of clients

Secrets of clients

Refer to information protected by attorney-client privilege under the Rules of Court (i.e., information pertinent to the case being

Refer to information gained in the profession relationship that the client has requested to be held inviolate or the

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. REQUISITES (LRCI) (1) The person to whom information is given is a lawyer. However, if a person is pretending to be a lawyer and client discloses confidential communications, the attorney-client privilege applies; (2) There is a legal relationship existing, except in cases of prospective clients; (3) Legal advice must be sought from the attorney in his professional capacity with respect to communications relating to that purpose. The information is not privileged if the advice is not within lawyer’s professional capacity; (4) The client must intend communication be confidential.

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PERSONS ENTITLED TO PRIVILEGE (1) The lawyer, client, and third persons who by reason of their work have acquired information about the case being handled, including: (a) Attorney’s secretary, stenographer and clerk; (b) Interpreter, messengers, or agents transmitting communication; (c) Accountant, scientist, physician, engineer who has been hired for effective consultation; (2) Assignee of the client’s interest as far as the communication affects the realization of the assigned interest.

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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 [Sec. 24(b), Rule 130]. General rule: As a matter of public policy, a client’s identity should not be shrouded in mystery. Thus, a lawyer may not invoke the privilege and refuse to divulge the name or identity of this client. Exceptions: (1) When a lawyer is accused by the client and he needs to reveal information to defend himself;

SCOPE OF THE PRIVILEGE (1) Does not cover transactions that occurred beyond the lawyer’s employment with the client [Palm v. Iledan, Jr., A.C. No. 8242 (2009)]. (2) 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 the crime was committed in the past, the privilege applies. If it is still to be committed, the privilege does not apply, because the communication between a lawyer and his client must be for a lawful purpose or in furtherance of a lawful end to be privileged [People v. Sandiganbayan, G.R. No. 115439 (1996)]. (3) 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. [Genato v. Silapan, A.C. 4078 (2003)].

(2) When the client discloses the intention to commit a crime or unlawful act [Aguirre (2006)]. Ratio: (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 privilege begins to exist only after the attorney-client relationship has been established. The attorney-client privilege does not attach unless there is a client. (3) The privilege generally pertains to the subject matter of the relationship. (4) Due process considerations require that the opposing party should, as a general rule, know his adversary. Exceptions to exceptions: Client identity is privileged in the following instances:

(4) Embraces not only oral or written statements but also actions, signs or other means of communications.

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(1) Where a strong probability exists that revealing the client's name would implicate that client in the very activity for which he sought the lawyer's advice. (2) Where disclosure would open the client to civil liability, his identity is privileged. (3) Where the government's lawyers have no case against an attorney's client unless, by revealing the client’s name, the said

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name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime, the client's name is privileged. 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, G.R. No. 105938 (1996)] General rule: The protection given to the client is perpetual and does not cease with the termination of the litigation, nor is it affected by the client’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 [Bun Siong Yao v. Aurelio, A.C. No. 7023 (2006)] Exception: 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).

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iii. Conflict of Interest Rule 15.01. A lawyer, in conferring with a prospective client, shall ascertain as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client.

Rule 15.03. A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts. There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties. [Hornilla v. Salunat, A.C. 5804 (2003)]. REQUISITES (1) There are conflicting duties; (2) The acceptance of the new relations invites or actually leads to unfaithfulness or double-dealing to another client; or (3) The attorney will be called upon to use against his first client any knowledge acquired in the previous employment. TESTS OF CONFLICT OF INTERESTS

EXAMPLES OF PRIVILEGED M ATTERS (1) Work product of lawyer (his effort, research and thought contained in his file); (2) 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 involved; (4) Consultation which has to do with the preparation of a client to take the witness stand.

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(1) Whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or doubledealing in its performance. (2) If the acceptance of the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represented him and also whether he will be called upon in his new relation to use against the first client any knowledge acquired through their connection [Frias v. Lozada, A.C. No. 6656 (2005)]. (3) 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

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LEGAL ETHICS

opposed by him when he argues for the other client. This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used. (4) Whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or doubledealing in the performance thereof [Pacana v. Pascual-Lopez, A.C. 8243 (2009)]. (5) Whether the lawyer will be asked to use against his former client any confidential information acquired through their connection or previous employment [Palm v. Iledan, Jr., A.C. 8242 (2009)] Note: The test to determine whether there is a conflict of interest in the representation is probability, not certainty of conflict. EFFECTS OF CONFLICT OF INTEREST Representing adverse interest may result in: (1) Disqualification as counsel in the new case; (2) If prejudicial to interests of latter client, setting aside of a judgment; (3) Administrative and criminal (for betrayal of trust) liability; (4) Forfeiture of attorney’s fees. 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. It is enough that the counsel had a hand in the preparation of the pleading of one party. Exception: When the parties agree, and for amicable settlement [Agpalo (2004)] 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, G.R. No. 77439 (1989)]

LEGAL AND JUDICIAL ETHICS

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 (2004)] iv. Candid Clients

and

Honest

Advice

to

Rule 15.05. A lawyer when advising his client shall give a candid and honest opinion on the merits and probable results of the client’s case, neither overstating nor understating the prospects of the case. 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 [Agpalo (2004)] The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay [Sec. 3, Rule 7] v. Not to Claim Influence Rule 15.06. A lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body. Ratio: To protect against influence peddling. [Agpalo (2004)]. vi. Com pliance with Laws Rule 15.07. A lawyer shall impress upon his client compliance with the laws and principles of fairness. It is the duty of an attorney 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 [Sec. 20(c), Rule 138].

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A lawyer is required to represent his client within the bounds of law. He is enjoined to employ only fair and honest means to attain the lawful objectives of his client and not to allow his client to dictate the procedure in handling the case. A lawyer appears in court in representation of his client not only as an advocate but also as an officer of the court. To permit lawyers to resort to unscrupulous practices for the protection of the supposed rights of their clients is to defeat the administration of justice [Agpalo (2004)]

LEGAL AND JUDICIAL ETHICS

Lawyers cannot acquire or purchase, even at a public or judicial auction, either in person or through the mediation of another, the property and rights which may be the object of any litigation in which they take part by virtue of their profession [Art. 1491(5), Civil Code]. Ratio: The prohibition is based on the existing relation of trust or the lawyer’s peculiar control over the property. REQUISITES (RLCP) (1) There is relationship;

vii. Concurrent Practice of Another Profession

Ratio: Certain ethical considerations may be operative in one profession and not in the other [Agpalo (2004)] 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, A.C. No. 2040 (1998)] E.3. CLIENT’S MONEYS AND PROPERTIES Canon 16. A lawyer shall hold in trust all moneys and properties of his client that may come into his possession.

attorney-client

(2) The property or interest of the client is in litigation;

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. Exercise of dual profession is not prohibited but a lawyer must make it clear when he is acting as a lawyer or when he is acting in another capacity, especially in occupations related to the practice of law [In re: Rothman, 12 N.J. 528 (1953)]

an

(3) The attorney takes part as counsel in the case; (4) The attorney purchases or acquires the property or right, by himself or through another, during the pendency of litigation [Laig v. CA, G.R. No. L-26882 (1978)] Any scheme which has the effect of circumventing the law comes within the prohibition [Agpalo (2004)]. INSTANCES W HEN PROHIBITION IN CIVIL CODE ART. 1491 APPLIES: (1) Even if the purchase or lease of the property in litigation is in favor of a partnership, of which counsel is a partner [Mananquil v. Villegas, A.C. No. 2430 (1990)] (2) If the purchase is made by the wife of the attorney [In re: Calderon, G.R. No. L2409 (1907)] (3) 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, A.M. No. 3216, (1992)]. The purchase by a lawyer of the property in litigation from his client is void and could produce no legal effect [Article 1409(7), Civil Code]

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INSTANCES W HEN PROHIBITION IN ART. 1491 DOES NOT APPLY: (1) When the attorney is not a counsel in the case involving the same property at the time of acquisition; (2) When purchaser is a corporation, even if the attorney was an officer [Tuason v. Tuason, G.R. No. L-3404 (1951)] (3) When sale takes place after termination of litigation, except if there was fraud or use/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. i. Fiduciary Relationship Rule 16.01. A lawyer shall account for all money or property collected or received for or from the client. Ratio: The lawyer merely holds said money or property in trust. When a lawyer collects or receives money from his client for a particular purpose (such as for filing fees, registration fees, transportation and office expenses), he should promptly account to the client how the money was spent. If he does not use the money for its intended purpose, he must immediately return it to the client [Belleza v. Macasa, A.C. No. 7815 (2009)] 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, A.C. No. 936 (1975)]

LEGAL AND JUDICIAL ETHICS

his personal purposes without the client’s consent. [Daroy v. Legaspi, A.C. No. 936 (1975)] iii. Delivery of Funds Rule 16.03. A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court. When an attorney unjustly retains in his hands money of his client after it has been demanded, he may be punished for contempt as an officer of the Court who has misbehaved in his official transactions; but proceedings under this Sec. shall not be a bar to criminal prosecution [Sec. 25, Rule 138] 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, A.C. No. 4349 (1997)] 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 [Jinon v. Jiz, A.C. No. 9615 (2013)] However, an attorney has 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 [Sec. 37, Rule 138] iv. Borrowing or Lending

ii. Com m ingling 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. A lawyer should not commingle a client’s money with that of other clients and with his private funds, nor use the client’s money for

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

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necessary expenses in a legal matter he is handling for the client. A LAW YER IS PROHIBITED FROM BORROW ING M ONEY FROM HIS CLIENT Ratio: The canon presumes that the client is disadvantaged by the lawyer’s ability to use all the legal maneuverings to renege on her obligation [Frias v. Lozada, A.C. No. 6656 (2005)] The profession 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. Quiocho, A.C. No. 5925 (2003)]

LEGAL AND JUDICIAL ETHICS

confidence reposed in him by complainant. Instead, he deceived complainant and misled him into parting with P400,000 for services that were both illegal and unprofessional [Stemmerik v. Mas, A.C. No. 8010 (2009)] E.5. COMPETENCE AND DILIGENCE Canon 18. A lawyer shall serve his client with competence and diligence.

Rule 18.03. A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. DILIGENCE REQUIRED

A LAW YER IS PROHIBITED FROM LENDING M ONEY TO HIS CLIENT Ratio: The canon intends to assure the lawyer’s independent professional judgment, for if the lawyer acquires a financial interest in the outcome of the case, the free exercise of his judgment may be adversely affected. Exception: When, in the interest of justice, he has to advance necessary expenses in a legal matter he is handling. E.4. 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. 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, A.C. No. 3195 (1989)] 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, A.M. No. 4103 (1995)] By advising complainant that a foreigner could legally and validly acquire real estate in the Philippines and by assuring complainant that the property was alienable, the lawyer deliberately foisted a falsehood on his client. He did not give due regard to the trust and

A lawyer must exercise ordinary diligence or that reasonable degree of care and skill having reference to the character of the business he undertakes to do, as any other member of the bar similarly situated commonly possesses and exercises. He is not, however, bound to exercise extraordinary diligence [Pajarillo v. WCC, G.R. No. L-42927 (1980)] 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, A.C. No. 5309 (2005)] i. Adequate Preparation Rule 18.02. A lawyer shall not handle any legal matter without adequate preparation. A lawyer should safeguard his client’s rights and interests by thorough study and preparation, mastering applicable law and facts involved in a case, and keeping constantly abreast of the latest jurisprudence and developments in all branches of the law [Agpalo (2004)] 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. [Legarda v. CA, G.R. No. 94457 (1991)]

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LEGAL AND JUDICIAL ETHICS

ii. Negligence

latter to look for another lawyer to represent them while counsel was in the hospital [Ventura v. Santos, 59 Phil. 123 (1993)];

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. [Callanta]

8) 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, A.M. No. 249 (1978)];

General rule: A client is bound by the attorney’s conduct, negligence and mistake in handling the 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. Exceptions: He is not so bound where the ignorance, incompetence or inexperience of lawyer is so great and error so serious that the client, who has good cause, is prejudiced and denied a day in court [People v. Manzanilla, G.R. No. L-17436 (1922); Alarcon v. CA, G.R. No. 126802 (2000)] EXAMPLES NEGLIGENCE: 1)

OF

9) Failure to pay the appellate docket fee after receiving the amount for the purpose [Capulong v. Alino, A.M. No. 381 (1968)] iii. 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.

LAW YER’S

Failure of counsel to ask for additional time to answer a complaint resulting in a default judgment against his client (Mapua v. Mendoza, G.R. L-19295 (1923)];

2) Failure to bring suit immediately, as when it was filed when the defendant had already become insolvent and recovery could no longer be had;

W HEN A LAW YER ACCEPTS A CASE, W HETHER FOR A FEE OR NOT, HIS ACCEPTANCE IS AN IMPLIED REPRESENTATION:

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, G.R. No. L-19299 (1964)] 4) Failure to file briefs within the reglementary period [People v. Cawili, G.R. No. L-30543, (1970)]; 5) Failure to attend a trial 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, G.R. No. L-4039 (1952)]; 6) Failure to appear at pre-trial [Agravante v. Patriarca, G.R. No. L-48324 (1990)]; 7) Failure of counsel to notify clients of the scheduled trial which prevented the PAGE 45 OF 104

1)

That he possesses the requisite degree of academic learning, skill and ability necessary 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 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. Tansinsin, A.C. 8252 (2009)]; and 4) That he will take steps as will adequately safeguard his client’s interests [Islas v. Platon, G.R. No. L-23183 (1924)]

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A lawyer should not accept an undertaking in a specific area of law which he knows or should know he is not qualified to enter. [Agpalo (2004)] iv. 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 client’s request for information. It was unnecessary to have the clients wait, and hope, for six long years on their pension claims. Upon their refusal to cooperate, the lawyer should have forthwith terminated their professional relationship instead of keeping them hanging indefinitely. [Blanza v. Arcangel, A.C. No. 492 (1967)] CLIENT SHOULD INQUIRIES

MAKE

PROPER

The client should not, however, sit idly by. It is also his duty to make proper inquiries from his counsel concerning his case, in keeping with that standard of care which an ordinarily prudent man bestows upon his important business. E.6. REPRESENTATION WITH ZEAL WITHIN LEGAL BOUNDS Canon 19. A lawyer shall represent his client with zeal within the bounds of the law. 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, G.R. No. 94457 (1991)] i. 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 in any case or proceeding.

LEGAL AND JUDICIAL ETHICS

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 [Sec. 20(d), Rule 138] 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, A.C. No. 7298 (2007)] ii. Client’s Fraud Rule 19.02. A lawyer who has received information that his client has, in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he shall terminate the relationship with such client in accordance with the Rules of Court. 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 (2004)] iii. Procedure in Handling The Case Rule 19.03. A lawyer shall not allow his client to dictate the procedure on handling the case. Within client’s control The cause of action, the claim or demand sued upon, and the subject matter of the litigation are all within the exclusive control of a client. An attorney may not impair, compromise, settle, surrender, or destroy them without his client's consent.

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Within counsel’s control All the proceedings in court to enforce the remedy, to bring the claim, demand, cause of action, or subject matter of the suit to hearing, trial, determination, judgment, and execution, are within the exclusive control of the attorney [Belandres v. Lopez

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LEGAL AND JUDICIAL ETHICS

(3) When the stipulated fees unconscionable or unreasonable;

Sugar Central Mill, G.R. No. L-6869 (1955)].

(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;

E.7. ATTORNEY’S FEES Canon 20. A lawyer shall charge only fair and reasonable fees.

(6) When the counsel’s services worthless because of negligence;

An attorney is entitled to have and recover from his client no more than a reasonable compensation for his services with a view to: (1) The importance of the subject matter of the controversy; (2) The extent of the services rendered; and (3) The professional attorney.

standing

of

are

the

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 am ount to be paid therefore unless found by the court to be unconscionable or unreasonable. [Sec. 24, Rule 138, RoC] 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, A.M. No. 1437 (1989)] W HEN A LAW YER CANNOT RECOVER THE FULL AMOUNT STIPULATED IN THE CONTRACT: (1) When the services were not performed, and if 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;

are

(7) When the contract is contrary to laws, morals, and good policies. W HEN THERE CONTRACT

IS

NO

EXPRESS

In the absence of an express contract, 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, G.R. No. L-40424 (1980)] NOTE: RA 5185. Sec. 6. Prohibition Against Practice. A member of the Provincial Board or City or Municipal Council shall not appear as counsel before any court in any civil case wherein the province, city or municipality, as the case may be, is the adverse party: Provided, however, That no member of the Provincial Board shall so appear except in behalf of his province in any civil case wherein any city in the province is the adverse party whose voters are en-franchised to vote for provincial officials, nor shall such member of the Provincial Board or City or Municipal Council appear as counsel for the accused in any criminal case wherein an officer or employee of said province, city or municipality is accused of an offense committed in relation to the latter's office, nor shall he collect any fee for his appearance in any administrative proceedings before provincial, city or municipal agencies of the province, city or municipality, as the case may be, of which he is an elected official.The provisions of this Sec. shall likewise apply to provincial governors and city and municipal mayors.

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Rule 20.01. A lawyer shall be guided by the following factors in determining his fees: (a) The time spent and the extent of the services rendered or required; (b) The novelty and questions involved;

difficulty

of

LEGAL AND JUDICIAL ETHICS

reasonably to notify him that lawyer expects compensation. W HEN AUTHORIZED:

the

(1) The agreement as to counsel fees is invalid for some reason other than the illegality of the object of performance;

(c) The importance of the subject matter;

(2) There is no express contract for attorney’s fees agreed upon between the lawyer and the client;

(d) The skill demanded; (e) The probability of losing other employment as a result of acceptance of the proffered case;

(3) When although there is a formal contract of attorney’s fees, the stipulated fees are found unconscionable or unreasonable by the court;

(f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs;

(4) When the contract for attorney’s fees is void due to purely formal matters or defects of execution;

(g) The amount involved in the controversy and the benefits resulting to the client from the service; (h) The contingency compensation;

or

certainty

(5) When the counsel, for justifiable cause, was not able to finish the case to its conclusion;

of

(i) The character of the employment, whether occasional or established; and

(6) When lawyer and client disregard the contract of attorney’s fees;

(j) The professional standing of the lawyer.

(7) When there is a contract but no stipulation as to attorney’s fees.

MANNER BY W HICH ATTORNEYS MAY BE PAID

QUANTUM MERUIT GUIDELINES

(1) A fixed or absolute fee which is payable regardless of the result of the case; (2) A contingent fee that is conditioned upon 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; (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. QUANTUM MERUIT Means “as much as a lawyer deserves.” Essential requisite: Acceptance of the benefits by one sought to be charged for services rendered under circumstances as PAGE 48 OF 104

(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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A determination of all these factors would indispensably require nothing less than a full-blown trial where private respondent can adduce evidence to establish its right to lawful attorney's fees and for petitioner to oppose or refute the same [Metrobank v. CA, G.R. No. 86100 (1990)] The above rules apply in the case of a counsel de parte. A counsel de oficio may not demand from the accused attorney’s fees even if he wins the case. However, subject to availability of funds, the court may, in its discretion, order an attorney employed as counsel de oficio to be compensated in such sum as the court may fix.

LEGAL AND JUDICIAL ETHICS

Champertous Contract

Contingent Contract

A champertous contract is one where the lawyer stipulates with his client that he will bear all the expenses for the prosecution of the case, the recovery of things or property being claimed, and the latter pays only upon successful litigation.

A contingent contract 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. The lawyer does not undertake to shoulder the expenses of litigation.

This contract is void for being against public policy

The criteria in fixing the amount are still:

It is a valid agreement.

(1) The importance of the subject matter of the controversy; (2) The extent of the services rendered; and (3) The professional attorney.

standing

of

the

i. Acceptance Fees Acceptance of money from a client establishes an attorney-client relationship and gives rise to the duty of fidelity to the client’s cause. [Emiliano Court Townhouses Homeowners Association v. Dioneda, A.C. No. 5162 (2003)] Failure to render the legal services agreed upon, despite receipt of an acceptance fee, is a clear violation of the Code of Professional Responsibility. [Macarulay v. Seriña, A.C. No. 6591 (2005)] 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 [Sec. 20(e), Rule 138] ii. Contingency Fee Arrangem ents A distinction should be made between a champertous contract and a contingent contract with respect to attorney’s fees:

Rule 20.02. A lawyer shall, in cases of referral, with the consent of the client, be entitled to a division of fees in proportion to work performed and responsibility assumed. The referral of a client by a lawyer to another lawyer does not entitle the former to a commission or to a portion of the attorney’s fees. It is only when, in addition to the referral, he performs legal service or assumes responsibility in the case that he will be entitled to a fee [Agpalo (2004)] Rule 20.03. A lawyer shall not, without the full knowledge and consent of the client, accept any fee, reward, costs, commission, interest, rebate or forwarding allowance or other compensation whatsoever related to his professional employment from anyone other than the client. Ratio: The rule is designed to secure the lawyer’s fidelity to the client’s cause and to prevent that situation in which 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 his client.

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iii. Attorney’s Liens RETAINING LIEN An attorney shall have a lien upon the funds, documents and papers of his client which have lawfully come into his possession. Thus: (1) He may retain the same until his lawful fees and disbursements have been paid; (2) May apply such funds to the satisfaction thereof. [Sec. 37, Rule 138] REQUISITES (1) Attorney-client relationship;

LEGAL AND JUDICIAL ETHICS

(4) The attorney has a claim for attorney’s fees or advances statement of his claim has been recorded in the case with notice served upon the client and adverse party. Retaining lien

Charging lien Nature

Passive lien. It cannot be actively enforced. It is a general lien.

Active lien. It can be enforced by execution. It is a special lien. Basis

(2) Lawful possession by lawyer of the client’s funds, documents and papers in his professional capacity; and (3) Unsatisfied claim for attorney’s fees or disbursements. CHARGING LIEN He shall also have a lien to the same extent upon all judgments for the payment of money, and executions issued in pursuance of such judgments, which he has secured in a litigation of his client. This lien exists from and after the time when he shall have caused: (1) A statement of his claim of such lien to be entered upon the records of the court rendering such judgment, or issuing such execution; and (2) Written notice thereof to be delivered to his client and to the adverse party. From then on, he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his just fees and disbursements [Sec. 37, Rule 138]

Lawful possession of funds, papers, documents, property belonging to client

Securing of a favorable money judgment for 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 possession of the funds, papers, documents, property

As soon as the claim for attorney’s fees had been entered into the records of the case

Applicability May be exercised before judgment or execution, or regardless thereof

REQUISITES (1) Attorney-client relationship;

Generally, it is exercisable only when the attorney had already secured a favorable judgment for his client

Notice

(2) The attorney has rendered services; (3) A money judgment favorable to the client has been secured in the action; and PAGE 50 OF 104

Client need not be notified to make it effective

Client and adverse party need to notified to make it effective

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iv. Fees Clients

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and

Controversies

with

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. JUDICIAL ACTIONS ATTORNEY’S FEES:

TO

LEGAL AND JUDICIAL ETHICS

E.9. PRESERVATION OF CLIENT’S CONFIDENCES Canon 21. A lawyer shall preserve the confidence and secrets of his client even after the attorney-client relation is terminated. Ratio: (1) 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;

RECOVER

(1) An appropriate motion or petition as an incident in the main action where he rendered legal services;

(2) To encourage a client to make full disclosure to his attorney and to place unrestricted confidence in him in matters affecting his rights or obligations.

(2) A separate civil action for collection of attorney’s fees. 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 (2004)] v. Concepts of Attorney’s Fees Ordinary concept

Extraordinary concept

An attorney’s fee is the reasonable compensation paid to a lawyer for the legal services he has rendered to a client. Its basis of this compensation is the fact of employment by the client.

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 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 UnionIndependent v. NLRC, G.R. No. 120592 (1997)].

It is the duty of an attorney 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. [Sec. 20(e), Rule 138] IMPOSITION OF CRIMINAL LIABILITY 1)

Upon any lawyer who, by any malicious breach of professional duty or of inexcusable negligence or ignorance, reveals any of the secrets of the latter learned by him in his professional capacity.

2) Upon a lawyer who, having undertaken the defense of a client or having received confidential information from said client in a case, undertakes the defense of the opposing party in the same case, without the consent of his first client. [Art. 209, RPC] i. 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 own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto. PAGE 51 OF 104

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Rule 21.03. A lawyer shall not, without the written consent of his client, give information from his files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or any similar purpose.

Rule 21.07. A lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest.

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. 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.

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 21.05. 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. 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. 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 (e.g., execution of confidentiality agreements). Ratio: 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.

Read in relation to:

Rule 14.03. A lawyer may not refuse to accept representation of an indigent client unless: (b) He labors under a conflict of interest between him and the prospective client or between a present client and the prospective client. THE PRIVILEGED COMMUNICATION RULE 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. This rule, of course, is subject to exception of representation of conflicting interests. ii. Disclosure, W hen Allowed Rule 21.01. A lawyer shall not reveal the confidences or secrets of his client except:

Rule 21.06. A lawyer shall avoid indiscreet conversation about a client’s affairs even with members of his family. A lawyer must also preserve the confidences and secrets of his clients outside the law office, including his home. He should avoid committing calculated indiscretion, that is, accidental revelation of secrets obtained in his professional employment. PAGE 52 OF 104

(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.

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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.

LEGAL AND JUDICIAL ETHICS

Rule 22.01. A lawyer may withdraw his services in any of the following cases: (a) When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling;

E.9. WITHDRAWAL OF SERVICES Canon 22. A lawyer shall withdraw his services only for good cause and upon notice appropriate in the circumstances.

(b) When the client insists that the lawyer pursue conduct violative of these canons and rules; (c) When his inability to work with cocounsel will not promote the best interest of the client;

CAUSES OF TERMINATION OF ATTORNEY-CLIENT RELATIONSHIP

(d) When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively;

(1) Withdrawal of the lawyer; (2) Death of the lawyer; (3) Disbarment or suspension of the lawyer from the practice of law;

(e) When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement;

(4) Declaration of presumptive death of the lawyer;

(f) When the lawyer is elected or appointed to public office; and

(5) Conviction of a crime and imprisonment of the 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;

(g) Other similar cases. A lawyer may retire at any time from any action or special proceeding: (1) With the written consent of his client filed in court and copy thereof served upon the adverse party; or

(8) Death of the client;

(2) Without the consent of his client, should the court, on notice to the client and attorney, and on hearing, determine that he ought to be allowed to retire. [Sec. 26, Rule 138]

(9) Intervening incapacity or incompetence of the client during pendency of case; (10) Full termination of the case. General rule: The client has the right to discharge his attorney at any time with or without just cause or even against his consent. Exceptions: (1) The client cannot deprive his counsel of right to be paid services if the dismissal is without cause. (2) The client cannot discharge his counsel as an excuse to secure repeated extensions of time. (3) Notice of discharge is required for both the court and the adverse party.

General rule: The withdrawal in writing, with the client’s conformity, does not require the approval of the court to be effective. Exception: If no new counsel has entered his appearance, the court may, in order to prevent a denial of a party’s right to the assistance of counsel require that the lawyer’s withdrawal be held in abeyance until another lawyer shall have appeared for the party [Villasis v. CA, G.R. No. L-34369 (1974)] 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, A.C. No. 4215 (2001)]

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Rule 22.02. A lawyer who withdraws or is discharged shall, subject to a retaining 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. REQUIREMENTS OF A SUBSTITUTION OF COUNSEL

VALID

(1) The filing of a written application for substitution; (2) The client’s written consent; (3) The consent of the substituted lawyer if such consent can be obtained; and, in case such written consent cannot be procured; (4) A proof of service of notice of such motion on the attorney to be substituted in the manner required by the Rules [Sec. 26, Rule 138] 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, G.R. No. 134854 (2000)]

LEGAL AND JUDICIAL ETHICS

IV. Suspension, Disbarment, and Discipline of Lawyers A. NATURE AND CHARACTERISTICS OF DISCIPLINARY ACTIONS AGAINST LAWYERS (1) Disciplinary proceedings are sui generis. (2) They are neither purely civil nor purely criminal. They are not intended to inflict punishment. (3) They do not involve a trial of an action or a suit, but is rather an investigation by the Court into the conduct of its officers. There is neither a plaintiff nor a prosecutor. (4) They may be initiated by the Court motu proprio. The Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice in the exercise of its disciplinary powers. (5) Public interest is the 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 (1970), Itong v. Florendo, A.C. 4428 (2011)]. The Supreme Court held that the complainants have personality to file the disbarment case. Any interested person or the court motu proprio may initiate disciplinary proceedings. The right to institute disbarment proceedings is not confined to clients nor is it necessary that the person complaining suffered injury from the alleged wrongdoing. Disbarment proceedings are matters of public interest and the only basis for the judgment is the proof or failure of proof of the charges. [Figueras v. Jimenez, A.C. 9116 (2014)]

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A.1. CONFIDENTIAL Rule 139-B, Sec. 18. Proceedings against attorneys shall be private and confidential. However, the final order of the Supreme Court shall be published like its decisions in other cases. PURPOSE OF THIS RULE (1)

To enable the Court to make its investigations free from any extraneous influence or interference;

(2) To protect the personal and professional reputation of attorneys and judges from the baseless charges of disgruntled, vindictive, and irresponsible clients and litigants; (3) To deter the press from publishing administrative cases or portions thereof without authority [Saludo, Jr. v. CA, G.R. 121404 (2006)]. In the absence of a legitimate public interest in a disbarment complaint, members of the media must preserve the confidentiality of disbarment proceedings during its pendency [Fortun v. Quinsayas, G.R. 194578 (2013)]. Confidentiality “is a privilege/right which may be waived by the very lawyer in whom and for the protection of whose personal and professional reputation it is vested, pursuant to the general principle that rights may be waived unless the waiver is contrary to public policy, among others” [Villalon v. IAC, G.R. 73751 (1986)]. A.2. OTHER CHARACTERISTICS (1) Proceedings may be taken by the Supreme Court motu proprio, and the IBP Board of Governors may also motu proprio initiate and prosecute proper charges against erring attorneys [Sec. 1, Rule 139-B]. (2) Investigation is not interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of the charges, or failure of the complainant to prosecute the same [Sec. 5, Rule 139-B]. (3) Laws dealing with double jeopardy or prescription or with procedure like verification of pleadings and prejudicial

LEGAL AND JUDICIAL ETHICS

questions have no application to disbarment proceedings [Pimentel, Jr. v. Llorente, A.C. 4680 (2000)]. (4) The proceedings are distinct from and proceed independently of civil or criminal cases. Thus, whatever has been decided in the disbarment case cannot be a source of right that may be enforced in another action. At best, such judgment may only be given weight when introduced as evidence, but in no case does it bind the court in the civil action [Esquivias v. CA, G.R. 119714 (1997)]. (5) The disbarment proceeding does not violate the due process clause. The proceeding itself, when instituted in proper cases, is due process of law [In Re: Montagne, G.R. 1107 (1904)]. (6) In a disbarment proceeding, it is immaterial that the complainant is in pari delicto because the proceeding is not to grant relief to the complainant, but to purge the law profession of unworthy members, to protect the public and the courts [Mortel v. Aspiras, G.R. L-9152 (1956)]. (7) The rule in criminal cases that the penalty cannot be imposed in the alternative applies in administrative disciplinary cases, which also involve punitive sanctions [Navarro v. Meneses III, CBD A.C. 313 (1998)]. (8) 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 A.3. PRESCRIPTION Sec. 1, Rule VIII of the Rules of Procedure of the Commission on Bar Discipline, which provided for a prescription period of two (2) years from the date of the professional misconduct, was struck down for being ultra vires. [Frias v. Bautista-Lozada, A.C. 6656 (2006)]. In Isenhardt v. Real (2012), however, the said prescriptive period was still construed to run from the discovery of the misconduct.

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B. GROUNDS 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 wilfull 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. GROUNDS FOR SUSPENSION:

DISBARMENT

(1) Deceit, malpractice misconduct in office;

or

other

OR gross

(2) Grossly immoral conduct; (3) Conviction of a crime involving moral turpitude; (4) Any violation of the lawyer’s oath; (5) Willful disobedience of any lawful order of a superior court; (6) Corruptly or willfully appearing as an attorney without authority so to do

LEGAL AND JUDICIAL ETHICS

causes damage, it gives rise to an action in tort [Tan Tek Beng v. David, A.C. 1261 (1983)]. Gross misconduct is any inexcusable, shameful or flagrant unlawful conduct on the part of a person concerned in the administration of justice which is prejudicial to the rights of the parties or to the right determination of the cause. Such conduct is generally motivated by a premeditated, obstinate or intentional purpose [Yap v. Inopiquez, Jr., A.M. RTJ-03-1760 (2003)]. Immorality connotes conduct that shows indifference to the moral norms of society and the opinion of good and respectable members of the community. The conduct must be “grossly immoral” (i.e., so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree) to warrant disciplinary action [Ui v. Bonifacio, A.C. 3319 (2000)]. Moral turpitude involves an act of baseness, vileness, or depravity in the private duties which a man owes to his fellow men, 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, A.C. 4585 (2004)]. OTHER STATUTORY GROUNDS

Deceit is false representation of a matter of fact whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it to his legal injury [Alcantara v. CA, G.R. 147259 (2003)]. Malpractice ordinarily refers to any malfeasance or dereliction of duty committed by a lawyer. It consists of a failture 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 PAGE 56 OF 104

(1) Purchase by a lawyer of his client’s property in litigation [Art. 1491, Civil Code] constitutes a breach of professional ethics for which a disciplinary action may be brought against him [Bautista v. Gonzales, A.M. 1625 (1990)]. (2) Under Art. 209, Revised Penal Code, administrative and criminal sanctions may be imposed upon any attorney-atlaw or solicitor who: (a) By 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; or

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(b) 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.

LEGAL AND JUDICIAL ETHICS

C. PROCEEDINGS PROCEDURE FOR DISBARMENT Institution either by: (a) The Supreme Court, motu proprio, or (b) The IBP, motu proprio, or (c) Upon verified complaint by any person

The enumeration is not to be taken as a limitation to the general power of courts to suspend or disbar a lawyer. The inherent powers of the court over its officers cannot be restricted [Quingwa v. Puno, A.C. 389 (1967)].

Six copies of the verified complaint shall be filed with the Secretary of the IBP or Secretary of any of its chapter and shall be forwarded to the IBP Board of Governors.

MISCONDUCT IN PRIVATE CAPACITY General rule: Lawyer may not be suspended or disbarred, and the court may not ordinarily assume jurisdiction to discipline him, for misconduct in his nonprofessional or private capacity.

Investigation investigators.

Exception: Where the misconduct outside of the lawyer's professional dealings is so gross a character as to show him morally unfit for the office and unworthy of the privilege which his licenses and the law confer on him, the court may be justified in suspending or removing him from the office of attorney [Co v. Bernardino, A.C. 3919 (1998)].

the

National

Grievance

Submission of investigative report to the IBP Board of Governors.

Board of Governors decides within 30 days

Investigation by the Solicitor-General

MISCONDUCT PRIOR OR INCIDENT TO ADMISSION A lawyer may be disbarred for misrepresentation of or false pretense relative to the requirements for admission to practice. Thus, the fact that a lawyer lacked any of the qualifications for membership at the time he took his oath is a ground for his disbarment [Agpalo (2004); see In Re: Diao, A.C. 224 (1963) and Lim v. Antonio, A.C. 848 (1971)].

by

SC renders final decision suspension/ dismissal.

for

disbarment/

All charges against the following shall be filed with the Supreme Court: (1) Justices of the Court of Appeals; (2) Justices of the Sandiganbayan; (3) Judges of the Court of Tax Appeals; and (4) Judges of lower courts [Sec. 1 (2), Rule 139-B]. Charges filed against justices and judges before the IBP shall immediately be forwarded to the Supreme Court for disposition and adjudication, including those

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filed prior to their appointment in the Judiciary [Sec. 1 (2), Rule 139-B]. D. DISCIPLINE OF FILIPINO LAWYERS PRACTICING ABROAD The disbarment or suspension of a member of the Philippine Bar by a competent court or other disciplinary agency in a foreign jurisdiction where he has also been admitted as an attorney is a ground for his disbarment or suspension if the basis of such action includes any of the acts hereinabove enumerated. The judgment, resolution or order of the foreign court or disciplinary agency shall be prima facie evidence of the ground for disbarment or suspension. [Sec. 27, Rule 138, as amended by Supreme Court Resolution dated Feb 13, 1992] E. DISCIPLINE GOVERNMENT

OF

LAWYERS

IN

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F. QUANTUM OF PROOF The proof required is clear, convincing and satisfactory evidence. BURDEN OF PROOF AND PRESUMPTION OF INNOCENCE The burden of proof in disbarment and suspension proceedings always rests on the shoulders of the complainant. The Court exercises its disciplinary power only if the complainant establishes the complaint by clearly preponderant evidence that warrants the imposition of the harsh penalty. As a rule, an attorney enjoys the legal presum ption that he is innocent of the charges made against him until the contrary is proved. An attorney is further presumed as an officer of the Court to have performed his duties in accordance with his oath [Joven and Reynaldo C. Rasing v. Cruz and Magsalin, A.C. 7686 (2013)]. G. DISCIPLINARY MEASURES

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. Exception: If that misconduct as a 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 on such ground In People v. Castaneda, G.R. 208290 (2013) the lawyers representing the offices under the executive branch were reminded that they still remain as officers of the court from whom a high sense of competence and fervor is expected. The Court reminded the lawyers in the government that the canons embodied in the Code of Professional Responsibility equally apply to lawyers in government service in the discharge of their official tasks. They should exert every effort and consider it their duty to assist in the speedy and efficient administration of justice.

(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 be-longs. 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:

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(a) A definite period; or (b) An indefinite period, which amounts to qualified disbarment, in which case, 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.

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(5) Censure, an official reprimand.

(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; (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 de-pending on the circumstance);

(6) Disbarment, the act of the Philippine Supreme Court in withdrawing from an attorney the privilege to practice law and striking out the name of the lawyer 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 serious crime.

conviction

of

a

(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. OTHER SANCTIONS AND REMEDIES (1) Restitution; (2) Assessment of costs; (3) Limitation upon practice; (4) Appointment of a receiver; (5) 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. MITIGATING CIRCUMSTANCES (1) Absence of a prior disciplinary record; (2) Absence of a dishonest or selfish motive; (3) Personal or emotional problems; (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;

AGGRAVATING CIRCUMSTANCES: (1) Prior disciplinary offenses; (2) Dishonest or selfish motive; (3) A pattern of misconduct; (4) Multiple offenses; (5) 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;

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(10) Indifference to making restitution. [See 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.

V. Readmission to the Bar

H. EFFECT OF EXECUTIVE PARDON (1) Conditional pardon: disbarment case will not be dismissed on such basis

(2) Copies of the sworn statement 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;

(2) Absolute pardon granted before conviction: disbarment case will be dismissed (3) Absolute pardon granted before conviction: No automatic 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.

A. LAWYERS SUSPENDED

WHO

HAVE

BEEN

GUIDELINES IN THE LIFTING AN ORDER OF SUSPENSION (1) 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;

(3) The sworn statement shall be considered as proof of respondent’s compliance with the order of suspension [Maniago v. De Dios, A.C. 7472 (2010)]. B. LAWYERS WHO HAVE BEEN DISBARRED CONSIDERATIONS FOR REINSTATEMENT (1) The applicant’s character and standing prior to disbarment;

I. EFFECT OF COMPROMISE AGREEMENTS The compromise agreement between the complainant and the lawyer, or the fact that the complainant already forgave the latter, does not necessarily warrant the dismissal of the administrative case. Exception: When as a consequence of the withdrawal or desistance, no evidence is adduced to prove the charges [Banaag v. Salindong, A.C. 1563 (1984)].

(2) The nature or character of the misconduct for which he is disbarred; (3) His conduct subsequent to disbarment [Cui v. Cui, G.R. L-18727 (1964)]; (4) His efficient government service [In re: Adriatico, G.R. L-2532 (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, A.C. 2756 (1986)]; (6) Applicant’s appreciation of significance of his dereliction and his assurance that he

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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, B.M. 44 (1989)];

LEGAL AND JUDICIAL ETHICS

VI. Mandatory Continuing Legal Education (MCLE) A. PURPOSE

GUIDELINES IN RESOLVING REQUESTS FOR JUDICIAL CLEMENCY OF DISBARRED LAWYERS (1) There must be proof of remorse and reformation. These include testimonials of credible institutions and personalities;

Continuing legal education is required of members of the IBP to: (1) Ensure that throughout their career, they keep abreast with law and jurisprudence; (2) Maintain the ethics of the profession; and

(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 (e.g., intellectual aptitude, contribution to legal scholarship), and potential for public service;

(3) Enhance the standards of the practice of law [Sec. 1, Rule 1, BM 850] B. REQUIREMENTS Members of the IBP shall complete, every three years, at least 36 hours of continuing legal education activities approved by the MCLE Committee. Of the 36 hours:

(5) Other relevant factors to justify clemency [Re: Letter of Judge Diaz, A.M. 07-7-17-SC (2007)].

Subject

C. LAWYERS WHO HAVE BEEN REPATRIATED Lawyers who reacquire their Philippine citizenship should apply to the Supreme Court for license or permit to practice their profession. [Sec. 5(4), RA 9225]

# of Hours

Legal Ethics

6 hours

Trial and Pre-trial Skills

4 hours

Alternative Dispute Resolution

5 hours

Updates on substantive and procedural laws and Jurisprudence

9 hours

International law and International Conventions

2 hours

Legal Writing and Oral Advocacy

4 hours

Other MCLE prescribed subjects

6 hours

PARTICIPATORY LEGAL EDUCATION (1) Attending approved education activities like seminars, conferences, conventions, symposia, in-house education programs, workshops, dialogues or round table discussion; PAGE 61 OF 104

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(2) Speaking or lecturing, or acting as assigned panelist, reactor, commentator, resource speaker, moderator, coordinator or facilitator in approved education activities; (3) Teaching in a law school or lecturing in a bar review class;

LEGAL AND JUDICIAL ETHICS

the month of admission or readmission and shall end on the same day as that of all other members in the same compliance group. However: (1) Where four 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;

NON-PARTICIPATORY LEGAL EDUCATION (1) 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;

(2) Where more than four 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 [Sec. 5, Rule 3, BM 850].

(2) Editing a law book, law journal or legal newsletter. Other activities, such as rendering mandatory legal aid services pursuant to Sec. 8, Bar Matter No. 2012, may be credited as MCLE activities. C. COMPLIANCE The IBP members covered by the requirement are divided into three compliance groups: (1) Compliance Group 1 consists of members in the National Capital Region (NCR) or Metro Manila;

D. EXEMPTIONS EXEMPTED MEMBERS FROM THE MCLE (1)

(2) Compliance Group 2 consists members in Luzon outside NCR; and

The President and the Vice President of the Philippines, and the Secretaries and Undersecretaries of Executives Departments;

(2)

(3) Compliance Group 3 consists members in Visayas and Mindanao.

Senators and Members of the House of Representatives;

(3)

The Chief Justice and Associate Justices of the Supreme Court, incumbent and retired members of the judiciary, incumbent members of the Judicial and Bar Council and incumbent court lawyers covered by the Philippine Judicial Academy program of continuing judicial education;

(4)

The Chief State Counsel, Chief State Prosecutor and Assistant Secretaries of the Department of Justice;

(5)

The Solicitor General and the Assistant Solicitor General;

of

The initial compliance period shall begin not later than three months from the constitution of the MCLE Committee. The compliance period shall be for 36 months and shall begin the day after the end of the previous compliance period. [Sec. 1, Rule 3, BM 850] For those admitted or readmitted after the establishment of the program, they will be permanently assigned to the appropriate compliance group based on their chapter membership on the date of admission or readmission. The initial compliance period after admission or readmission shall begin on the first day of PAGE 62 OF 104

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(6)

The Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel;

(7)

The Chairmen and Members of the Constitutional Commissions;

(8)

The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsmen and the Special Prosecutor of the Office of the Ombudsman;

(9)

Heads of government agencies exercising quasi-judicial functions;

(10)

Incumbent deans, bar reviewers and professors of law who have teaching experience for at least ten years accredited law schools;

(11)

The Chancellor, Vice-Chancellor and members of the Corps of Professors and Professorial Lectures of the Philippine Judicial Academy;

(12)

Governors and Mayors.

(13)

Those who are not in law practice, private or public; and

(14)

Those who have retired from law practice with the approval of the IBP Board of Governors [Sec. 1 and 2, Rule 7]

A member may file a verified request setting forth good cause for exemption (e.g., physical disability, illness, post graduate study abroad, proven expertise in law) 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. [Sec. 3, Rule 7, BM 850] When a member ceases to be exempt, the compliance period begins on the first day of the month in which he ceases to be exempt and shall end on the same day as that of all other members in the same Compliance Group. [Sec. 4, Rule 7, BM 850] Proof of exemption: Applications for exemption from or modification of the MCLE requirement shall be under oath and supported by documents.

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E. SANCTIONS (1) A member who, for whatever reason, is in non-compliance at the end of the compliance period shall pay a noncompliance fee. (2) Any member who fails to satisfactorily comply shall be listed as a delinquent member by the IBP Board of Governors upon the recommendation of the MCLE Committee, in which case, Rule 139-A, Rules of Court, governing the IBP, shall apply [Sec. 1 and 2, Rule 13, BM 850] Under BM 1922 (2008), practicing members of the bar are required to indicate in all pleadings filed before the courts or quasijudicial 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. Failure to disclose the required information would cause the dismissal of the case and the expunction of the pleadings from the records. F. BAR MATTER 2012: THE RULE ON MANDATORY LEGAL AID SERVICE 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. Mandatory free legal service by members of the bar and their active support thereof will aid the efficient and effective administration of justice especially in cases involving indigent and pauper litigants [Sec. 2, BM No. 2012 (2009)] SCOPE The rule governs 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 IBP.

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PRACTICING LAWYERS Members of the Philippine Bar who appear for and in behalf of parties in courts of law and quasi-judicial agencies, excluding the following: (1) Government employees and incumbent elective officials not allowed by law to practice; (2) Lawyers who by law are not allowed to appear in court; (3) Supervising lawyers of students enrolled in law student practice in duly accredited legal clinics of law schools and lawyers of non-governmental organizations and peoples’ organizations, who by the nature of their work already render free legal aid to indigent and pauper litigants; and (4) Lawyers do not appear for and in behalf of parties in courts of law and quasijudicial agencies. INDIGENT AND PAUPER LITIGANTS

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PENALTIES Should a lawyer fail to render the minimum prescribed number of hours., he shall be required to explain why he was unable to do so. 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. 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 P4000.00 penalty which shall accrue to the special fund for the legal aid program of the IBP. Any lawyer who fails to comply with these duties for at least three consecutive years shall be the subject of disciplinary proceedings to be instituted motu proprio by the Committee on Bar Discipline. [Sec. 7, BM 2012]

(1) Those whose gross income and that of their immediate family do not exceed an amount double the monthly minimum wage of an employee; and (2) Those 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. [Sec. 19, Rule 141] REQUIREMENTS FOR EVERY PRACTICING LAWYER (1) To render a minimum of 60 hours of free legal aid services to indigent litigants in a year. Said 60 hours shall be spread within a period of twelve 12 months, with a minimum of five hours of free legal aid services each month (2) To 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 [Sec. 5, BM 2012] PAGE 64 OF 104

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VIII. Notarial Practice [Note: Notarial Pratice is one of the favorite questions asked in the Bar. – Faculty Ed.] A. QUALIFICATIONS OF NOTARY PUBLIC 1. Must be a Filipino citizen;

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Sec. 13, Rule III, Notarial Rules. A notary public may file a written application with the Executive Judge for the renewal of his commission within 45 days before the expiration thereof. C. POWERS AND LIMITATIONS

2. Must be over 21 years old; 3. Must be a resident of the Philippines for at least one year; 4. Must maintain a regular place of work or business in the city or province where com-mission is to be issued;

C.1. POWERS A notary public can perform the following notarial acts: 1.

2. Oaths and affirmations;

5. Must be a member of the Philippine Bar in good standing, with clearances from: The Office of the Bar Confidant of the Supreme Court; and the IBP; 6. Must not have been convicted in the first instance of any crime involving moral turpitude [Sec. 1, Rule III, Notarial Rules] B. TERM OF OFFICE OF NOTARY PUBLIC Sec. 11, Rule III, Notarial Rules. A person commissioned as notary public may perform notarial acts in any place within the territorial jurisdiction of the commission-ing court for a period of two 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

3. Jurats; 4. Signature witnessings; and 5. Copy certifications [Sec. 1(a), Rule III, Notarial Rules] OTHER ACTS AUTHORIZED BY THE NOTARIAL RULES (1) Certifying the affixing of signature by thumb or other mark on an instrument or document presented for notarization [Sec. 1(b), Rule III, Notarial Rules] (2) Signing on behalf of a person who is physically unable to sign or make a mark on an instrument or document [Sec. 1(c), Rule III, Notarial Rules]

Definition

Acknowledgment

Oath or Affirmation Jurat Signature witnessing

Acknowledgments;

Common Requisites

Represents to the notary public that (1) Appears in person before the the signature was voluntarily affixed for notary public and presents an the purposes stated in the instrument integrally complete instrument and declares that instrument was or document; executed as a free and voluntary act Avows under penalty of law to the (2) Is attested to be personally known to the notary public or whole truth identified by the notary public Sign the instrument and take an oath through competent evidence of or affirmation before the notary public identity as defined by the as to such instrument Notarial Rules Signs the instrument in the presence of the notary public PAGE 65 OF 104

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i. Copy Certification Refers to a notarial act in which a notary public: (PC-CD) (1) Is presented with an instrument or document that is neither a vital record, a public record, nor publicly recordable; (3) Copies or supervises the copying of the instrument or document; (4) Compares the instrument or document with the copy; and (5) Determ ines that the copy is accurate and complete [Sec. 4, Rule II, Notarial Rules] This assists litigators in doing away with the requirement of proving that a copy is a faithful reproduction of an original instrument or document. [Uy (2004)] ii. Certifying the Affixing of Signature by Thum b/Other M ark A notary public is authorized if: (1) The thumb or other mark is affixed in the presence of the notary public and of two (2) disinterested and unaffected witnesses to the instrument or document; (2) Both witnesses sign their own names in addition to the thumb or other mark;

(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 witnesses);” and (5) The notary public notarizes his signature by acknowledgment or jurat [Sec. 1(c), Rule IV, Notarial Rules]. “Physically unable to sign” does not include the situation where a person is physically unable to sign because he is in another place [Uy (2004)]. C.2. LIMITATIONS i. Relating to Notarial Acts A notary public shall not perform a notarial act outside his regular place of work or business; provided, however, that on certain exceptional occasions or situations, a notarial act may be performed at the request of the parties in the following sites located within his territorial jurisdiction: (a) Public offices, convention halls, and similar places where oaths of office may be administered;

(3) The notary public writes below the thumb or other mark: “Thumb or Other Mark affixed by (name of signatory by mark) in the presence of (names and addresses of witnesses) and undersigned notary public;” and

(b) Public function areas in hotels and similar places for the signing of instruments or documents requiring notarization;

(4) The notary public notarizes the signature by thumb or other mark through an acknowledgment, jurat, or signature witnessing. [Sec. 1(b), Rule IV, Notarial Rules] iii. Signing on Behalf of a Person W ho is Physically Unable to Sign or Make a Mark A notary public is authorized if: (1) The notary public is directed by the person unable to sign or make a mark to sign on his behalf;

LEGAL AND JUDICIAL ETHICS

(c) Hospitals and other medical institutions where a party to an instrument or document is confined for treatment; and (d) Any place where a party to an instrument or document requiring notarization is under detention [Sec. 2(a), Rule IV, Notarial Rules] A person shall not perform a notarial act if the person involved as signatory to the instrument or document:

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(a) Is not in the notary's presence personally at the time of the notarization; and

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(b) Is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by the Notarial Rules A notary public is disqualified performing a notarial act if he:

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A notary public shall not notarize: (a) A blank or incomplete instrument or document; or (b) An instrument or document without appropriate notarial certification [Sec. 6, Rule IV, Notarial Rules]

from

(a) Is a party to the instrument or document that is to be notarized; (b) Will receive, as a direct or indirect result, any commission, fee, advantage, right, title, interest, cash, property, or other consideration, except as provided by the Notarial Rules and by law; or

ii. Relating to Notarial Register In the notary's presence, any person may inspect an entry in the notarial register, during regular business hours, provided; (a) The person's identity is personally known to the notary public or proven through competent evidence of identity as defined in the Notarial Rules;

(c) A notary public is disqualified from performing is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree [Sec. 3, Rule IV, Notarial Rules]

(b) The person affixes a signature and thumb or other mark or other recognized identifier, in the notarial register in a separate, dated entry; (c) The person specifies the month, year, type of instrument or document, and name of the principal in the notarial act or acts sought; and

A notary public shall not perform any notarial act described in the Notarial Rules if:

(d) The person is shown only the entry or entries specified by him;

(a) The notary knows or has good reason to believe that the notarial act or transaction is unlawful or immoral; (b) The signatory shows a demeanor which engenders in the mind of the notary public reasonable doubt as to the former's knowledge of the consequences of the transaction requiring a notarial act; and (c) In the notary's judgment, the signatory is not acting of his or her own free will [Sec. 4, Rule IV, Notarial Rules] A notary public shall not: (a) Execute a certificate containing information known or believed by the notary to be false; (b) Affix an official signature or seal on a notarial certificate that is incomplete [Sec. 5, Rule IV, Notarial Rules]

The notarial register may be examined by a law enforcement officer in the course of an official investigation or by virtue of a court order. If the notary public has a reasonable ground to believe that a person has a criminal intent or wrongful motive in requesting information from the notarial register, the notary shall deny access to any entry or entries therein [Sec. 4, Rule VI, Notarial Rules]

D. NOTARIAL REGISTER A notarial register refers to a permanently bound book with numbered pages containing a chronological record of notarial acts performed by a notary public [Sec. 5, Rule II, Notarial Rules] Rule VI, Sec.s I and 2 of the 2004 Rules of Notarial Practice require a notary public to

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keep and maintain a Notarial Register wherein he will record his every notarial act. His failure to make the proper entry or entries in his notarial register concerning his notarial acts is a ground for revocation of his notarial commission [Agadan, et al. v. Kilaan, A.C. No. 9385 (2013)].

LEGAL AND JUDICIAL ETHICS (f) Reasons for refusal to allow inspection or copying of a journal entry;

(13) Brief description of the substance of a contract presented for notarization; (14) In case of a protest of any draft, bill of exchange or promissory note, a full and true record of all proceedings in relation thereto and shall note therein:

D.1. ENTRIES i. By the Notary Public

(a) Whether the demand for the sum of money was made, by whom, when and where;

Required to be entered at the time of notarization:

(b) Whether he presented such draft, bill or note;

(1) The entry number and page number; (2) The date and time of day of the notarial act;

(c) Whether notices were given, to whom and in what manner; where the same was made, when and to whom and where directed; and

(3) The type of notarial act; (4) The title or description of the instrument, document or proceeding;

(d) Of every other fact touching the same [Sec. 2, Rule VI, Notarial Rules]

(5) The name and address of each principal; (6) The competent evidence of identity as defined by the Notarial Rules if the signatory is not personally known to the notary; (7) The name and address of each credible witness swearing to or affirming the person's identity;

ii. By Other Persons At the time of notarization, the notary's notarial register shall be signed or a thumb or other mark affixed by each: 1.

(8) The fee charged for the notarial act;

2. Credible witness swearing or affirming to the identity of a principal; and

(9) The address where the notarization was performed if not in the notary's regular place of work or business; and

3. Witness to a signature by thumb or other mark, or to a signing by the notary public on behalf of a person physically unable to sign [Sec. 3, Rule VI, Notarial Rules]

(10) Any other circumstance the notary public may deem of significance or relevance; (11) Reasons and circumstances for not completing a notarial act; (12) Circumstances of any request to inspect or copy an entry in the notarial register, including the: (a) Requester’s name; (b) Requester’s address; (c) Requester’s signature; (d) Requester’s thumbmark or other recognized identifier;

Principal;

D.2. CLOSING 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. [Sec. 2(g), Rule VI, Notarial Rules]

(e) Evidence of requester’s identity; and PAGE 68 OF 104

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D.3. SUBMISSION 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 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. [Sec. 2(h), Rule VI, Notarial Rules]

LEGAL AND JUDICIAL ETHICS 1)

Is not in the notary’s presence personally at the time of the notarization; and

2) Is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules. [Sec. 2, Rule VI, Notarial Rules]

F. REVOCATION OF COMMISSION E. JURISDICTION OF NOTARY PUBLIC AND PLACE OF NOTARIZATION A person commissioned as notary public may perform notarial acts in any place within the territorial jurisdiction of the commissioning court. [Sec. 11, Rule III, Notarial Rules] This applies even if notarization is allowed in places other than the regular place of business of the notary public. [Sec. 2(a), Rule IV, Notarial Rules] A notary public shall not perform a notarial act outside his regular place of work or business; provided, however, that on certain exceptional occasions or situations, a notarial act may be performed at the request of the parties in the following sites located within his territorial jurisdiction: 1)

Public offices, convention halls, and similar places where oaths of office may be administered;

2) Public function areas in hotels and similar places for the signing of documents requiring notarization; 3) Hospitals and other medical institutions where a party to an instrument or document is confined for treatment; and 4) Any place where a party to the instrument or document requiring notarization is under detention. [Sec. 2, Rule VI, Notarial Rules] A person shall not perform a notarial act if the person involved as signatory to the instrument or document –

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1.

The Executive Judge shall revoke a notarial commission for any ground on which an application for a commission may be denied;

2. In addition, the Executive Judge may revoke the commission of, or impose appropriate administrative sanctions upon, any notary public who: (a) Fails to keep a notarial register; (b) Fails to make the proper entry or entries in his notarial register concerning his notarial acts; (c) Fails to send the copy of the entries to the Executive Judge within the first ten days of the month following; (d) Fails to affix to acknowledgments the date of expiration of his commission; (e) Fails to submit his notarial register, when filled, to the Executive Judge; (f) Fails to make his report, within a reasonable time, to the Executive Judge concerning the performance of his duties, as may be required by the judge; (g) Fails to require the presence of a principal at the time of the notarial act; (h) Fails to identify a principal on the basis of personal knowledge or competent evidence; (i) Executes a false or incomplete certificate under Sec. 5, Rule IV;

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(j) Knowingly performs or fails to perform any other act prohibited or mandated by these Rules; and (k) Commits any other dereliction or act which in the judgment of the Executive Judge constitutes good cause for revocation of com-mission or imposition of administrative sanction [Sec. 1(a) and (b), Rule XI, Notarial Rules]

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G. COMPETENT IDENTITY

EVIDENCE

OF

Competent evidence of identity means 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 notary public should not notarize a document unless the person who signed the same is the very same person who executed and personally appeared before him to attest to the contents and the truth of what are stated therein. Without the personal appearance of the person who actually executed the document, the notary public would be unable to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act or deed. A notarized document is, by law, entitled to full faith and credit upon its face. It is for this reason that a notary public must observe with utmost care the basic requirements in the performance of his duties; otherwise, the public’s confidence in the integrity of a notarized document would be undermined. When a lawyer commissioned as a notary public fails to discharge his duties as such, he is meted the penalties of revocation of his notarial commission, disqualification from being commissioned as a notary public for a period of 2 years, and suspension from the practice of law for 1 year. [Agbulos v. Viray , G.R. No. 7350 (2013)]

(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; or (b) Two credible witnesses neither of whom is privy to the instrument, document or trans-action who each personally knows the individual and shows to the notary public documentary identification. [Sec. 12, Rule II, Notarial Rules]

H. SANCTIONS The Executive Judge may motu proprio initiate administrative proceedings against a notary public and impose the appropriate administrative sanctions on the grounds for revocation of commission mentioned [Sec. 1(d), Rule XI, Notarial Rules] Also, the Executive Judge shall cause the prosecution of any person who:

Duties of notaries public are dictated by public policy and impressed with public interest. “Notarization is not a routinary, meaningless act, for notarization converts a private document to a public instrument, making it admissible in evidence without the necessity of preliminary proof of its authenticity and due execution.” [Tenoso vs. Echavez, A.C. No. 8384 (2013)]

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1.

Knowingly acts or otherwise impersonates a notary public;

2. Knowingly obtains, conceals, defaces, or destroys the seal, notarial register, or official records of a notary public; and 3. Knowingly solicits, coerces, or in any way influences a notary public to commit official misconduct.

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IX. Canons of Professional Ethics

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adopted are per se binding only on its members.

A. ORIGIN In 1917 and 1946, The Philippine Bar Association (PBA) adopted the American Bar Association’s Canons of Professional Ethics. In 1980, the IBP adopted a proposed Code of Professional Responsibility, which was later approved and promulgated by the SC as the present Code of Professional Responsibility. [PCGG v. Sandiganbayan, G.R. No. 151809 (2005)]

B. LEGAL STATUS While the PBA enjoys high regard in the legal community, the rules or canons it has

It would be grave error to declare that the Canons of Professional Ethics, on their own, serves as an indisputable source of obligations and basis of penalties imposable upon members of the Philippine legal profession. This would violate the longestablished constitutional principle that it is the Supreme Court which is tasked with the promulgation of rules governing the admission to the practice of law, as well as the pleading, practice and procedure in all courts. If provisions of the Canons of Professional Ethics have jurisprudentially been enforced, or acknowledged as basis for legal liability by the SC, they may be recognized as a binding standard imposable upon members of the bar, not because said canons or the PBA itself said so, but because the SC said so (Tinga, J., Sep. Opinion, PCGG v. Sandiganbayan, G.R. No. 151809 (2005)]

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I. Sources of Rules In Judicial Ethics

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II. Qualities A. INDEPENDENCE

A. THE NEW CODE OF JUDICIAL CONDUCT FOR THE PHILIPPINE JUDICIARY (BANGALORE DRAFT) In Nov 2002, at a Roundtable Meeting of Chief Justices held at the Peace Palace in The Hague, the Judicial Group on Strengthening Judicial Integrity amended and approved the Bangalore Draft of the Code of Judicial Conduct, which is intended to be the Universal Declaration of Judicial Standards. It is founded on the following principles: (1) A universal recognition that a competent, independent and impartial judiciary is essential if the courts are to fulfill their role in upholding constitutionalism and the rule of law;

Canon 1. Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects. Canon 1 - Asked 11 times in the Bar. [Lex Pareto (2014)] Summary of judicial duties under Canon 1, Independence [Lex Pareto (2014)]

(2) Public confidence in the judicial system and in the moral authority and integrity of the judiciary is of utmost importance in a modern democratic society; and (3) It is essential that judges, individually and collectively, respect and honor judicial office as a public trust and strive to enhance and maintain confidence in the judicial system. On Apr 27, 2004, the draft code was promulgated as the New Code of Judicial Conduct for the Philippine Judiciary through A.M. No. 03-05-01-SC and given effect on June 1, 2004.

B. CODE OF JUDICIAL CONDUCT The New Code of Judicial Conduct supersedes the Canons of Judicial Ethics (1946) and the Code of Judicial Conduct (1989). However, in case of deficiency or absence of specific provisions, the Canons of Judicial Ethics and the Code of Judicial Conduct shall be applicable in a suppletory character [New Code of Judicial Conduct]. PAGE 73 OF 104

a. Judges shall exercise judicial function independently b. In performing judicial duties, judges shall be independent from judicial colleagues c. Judges shall refrain from influencing the outcome of litigations and administrative cases d. Judges shall not allow family, social or other relationships to influence judicial conduct (A companion or EE of the judge who lives in the judge’s household is included in the definition of the “judge’s family”) e. Judges shall be free from inappropriate connections and influence from the executive and legislative branches. (“A judge is entitled to entertain personal views on political questions. But to avoid suspicion of political partisanship, a judge shall not make political speeches, contribute to party funds, publicly endorse candidates for political office or participate in other partisan political activities” [Rule 5.10, Old Code] f.

Judges shall be independent in relation to society (“A judge shall not accept appointment or designation to any agency performing quasi-judicial

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or administrative functions” [Rule 5.09, Old Code] g. Judges shall encourage and uphold safeguards for the discharge of judicial duties h. Judges shall exhibit and promote high standards of judicial conduct INDEPENDENT JUDICIAL FUNCTION Sec. 1. Judges shall exercise the judicial function independently: (a) On the basis of their assessment of the facts; (b) In accordance with a conscientious understanding of the law; (c) Free of any extraneous influence, inducement, pressure, threat or interference, direct or indirect, from any quarter or for any reason An independent judiciary has been described as “one free of inappropriate outside influences.” Judges frequently experience pressures in the exercise of their judicial functions. Once a judge gives in to pressures from whatever source, that judge is deemed to have lost his independence and is considered unworthy of the position. More than just a breach of the rudiments laid down in the Code of Judicial Conduct, judges who succumb to pressure and, as a result, knowingly ignore proven facts or misapply the law in rendering a decision commit corruption. Integrity is essential not only to the proper discharge of the judicial office but also to the personal demeanor of judges. In every case, a judge should endeavor diligently to ascertain the facts and the applicable law unswayed by partisan or personal interests, public opinion or fear of criticism. The fact that the complainant and his sympathizers had staged a rally demanding the issuance of a warrant of arrest against the accused is not a sufficient excuse for the unjustified haste of respondent judge's act of fixing bail without a hearing [Libarios v. Dabalos, A.M. No. RTJ-89-286 (1991)]

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Judges must adhere to the highest tenets of judicial conduct and must be the embodiment of competence, integrity and independence; not only pure but above suspicion. 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. [Tan v. Rosete, A.M. MTJ-04-1563 (2004)] 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 [Gutierrez, Jr., J., Concurring Opinion, Go v. CA, G.R. 101837 (1992)] OUTSIDE PRESSURE 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 confessed act of succumbing to pressure is a patent betrayal of public trust. [Ramirez v. Corpuz-Macandog, A.M. No. R-351-RTJ (1986)] INFLUENCING OUTCOME OF LITIGATION Sec. 3. Judges shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court or administrative agency Sec. 2 and 3 intend to curb practices or prevent situations whereby a judge influences the decision in a case not pending before him, or whereby a judge hearing a case allows himself to be influenced by another judge. However, if the consultation is purely on an academic or hypothetical basis, and the

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judge does not surrender his or her independent decision making, there can be no breach of Sec. 2 and 3 of the Code In the case of Sabitsana v. Villamor (1991) the respondent judge of the Regional Trial Court (RTC) wrote a letter to a lower court judge of the Municipal Trial Court (MTC) judge seeking to influence him to hear a case and even intimating that he issue an order of acquittal. The High Court ruled that a judge who tries to influence the outcome of a litigation pending before another court not only subverts the independence of the judiciary but also undermines the people's faith in its integrity and impartiality. The interference in the decision-making process of another judge is a breach of conduct so serious as to justify dismissal from service based only on a preponderance of evidence INFLUENCE ON JUDICIAL CONDUCT 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 public interests of others, nor convey or permit others to convey the impression that they are in a special position to influence the judge. Under the New Code of Judicial Conduct, the term “family” is extended beyond that of nuclear members to include those related by blood or marriage up to the sixth civil degree, as well as those who belong to the judge’s employ and are living in his household. These familial ties may not influence a judge in his or her discharge of judicial duties. It should be noted that when a judge is related to one of the parties within the sixth degree of consanguinity or affinity, his disqualification is mandatory. This provision is intended to ensure that judges are spared from potential influence of family members by disqualifying them even before any opportunity for impropriety presents itself. This gives instruction to judges not to allow their family members, friends and associates to influence them in their judicial conduct or judgment. Also importantly, a judge should ensure that his family members, friends and

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associates refrain from creating the impression that they are in a position to influence the judge. [ABA– Rule of Law Initiative, New Code of Judicial Conduct for the Philippine Judiciary (Annotated) (2007)] "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, New Code of Judicial Conduct]. Otherwise, the judge risks undermining public confidence not just in him or herself, but in the entire judicial institution [ABA (2007)] 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. The reality in the Philippine political system is that judges can easily get an appointment or promotion with some assistance or support from political leaders, religious groups, military stalwarts, big companies and the affluent. The most pervasive influence comes from leaders in the legislature and those closely allied with the executive department. [ABA (2007)]. Mere congeniality between a judge and a governor may not necessarily be unethical, but it may still create the appearance of impropriety. This congeniality was not necessarily detrimental to judicial independence, provided that there was no showing that such relations were for corrupt ends. However, had this case been tried under the New Code of Judicial Conduct, the judge’s acts would likely have created an “appearance” of an improper connection. To the common person, the accommodation may seem a reason for the judge to ingratiate himself towards his benefactors, which may ultimately be perceived as affecting the judge’s ability to rule independently.

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Therefore, whether or not the congenial relationship was indeed used for corrupt ends, it would be advisable for judges to avoid becoming dependent on other parties, especially for basic needs like transportation to the judge’s workstation. [Re: Suspension of Clerk of Court Rogelio R. Joboco, A.M. No. 9310-1296-RTC (1998)]. Granting bail because of the request of a congressman, despite belief that the evidence of guilt against the accused is strong, is reprehensible [Tahil v. Eisma, A.M. No. 276-MJ (1975)]. It is absolutely essential to the proper administration of justice that courts have full control over the official actions of those through whom the administration of the affairs of the court precedes. For judicial independence to be a reality, the least interference by or influence from other governmental departments is of the essence. Only this Court has the authority to order a personnel accounting of locally-funded employees assigned in the lower courts to determine the necessity of their detail [Alfonso v. Alonzo-Legasto, A.M. No. MTJ 94995 (2002)]. It is desirable that the judge should, as far as reasonably possible, refrain from all relations which would normally tend to arouse the suspicion that such relations warp or bias his judgment, and prevent an impartial attitude of mind in the administration of judicial duties [ABA (2007)]. INDEPENDENCE FROM PARTICULAR PARTIES

SOCIETY

AND

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. Judges should not fraternize with litigants and their counsel. In fact, they should make a conscious effort to avoid them in order to avoid the perception that their independence has been compromised [ABA (2007)]

LEGAL AND JUDICIAL ETHICS

with litigants outside the office premises beyond office hours violate the standard of judicial conduct required to be observed by members of the bench. They constitute gross misconduct which is punishable under Rule 140, Rules of Court [Tan v. Rosete, A.M. MTJ04-1563 (2004)] SAFEGUARDS INDEPENDENCE

FOR

JUDICIAL

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 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 Secs. 7 and 8 instruct judges on what to do to maintain and enhance judicial independence. Sec. 7 requires judges to encourage and uphold safeguards for the discharge of judicial duties in order to maintain and enhance judicial independence, while Sec. 8 focuses on inspiring public confidence. They are intended to serve as catch-all provisions for all other acts that would guarantee the independence of the judiciary, but which may not have been covered in the specific instances mentioned in the earlier provisions [ABA (2007)]. The 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 v. Villon, G.R. No. 127107 (1998)].

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B. INTEGRITY

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impropriety as to be beyond reproach [Tan v. Rosete, A.M. No. MTJ-04-1563 (2004)].

Canon 2. Integrity is essential not only to the proper discharge of the judicial office but also to the personal demeanor of judges. CANON 2 – Asked 3 times in the Bar. [Lex Pareto (2014)] Summary of the duties of a judge under Canon 2, Integrity:

The conduct of 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. [In Re: Complaint of Mrs. Marcos Against Judge Marcos, A.M. No. 97-2-53-RTC (2001)]

a. 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.

With regard to professional integrity, judges have been penalized for:

b. 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.

2. Fraternizing with litigants and/or lawyers [Dela Cruz v. Bersamin (2000)];

1.

3. Altering orders [Rallos v. Gako (2000)]; 4. Delay in rendering decisions [Fernandez v. Hamoy (2004)];

c. Judges should take or initiate disciplinary measures against lawyers or court personnel for any unprofessional conduct of which the judge may have become aware. Judges must be “models of uprightness, fairness and honesty.” [Rural Bank of Barotac Nuevo, Inc. vs. Cartagena, A.M. No. 707-MJ (1978)] CONDUCT ABOVE REPROACH

5. Sexual harassment of employees [Dawa v. De Asa (1998)]; and 6. Ignorance of the law [Macalintal v. The (1997)]. With respect to personal integrity, judges have been penalized for transgressions in their private lives such as: 1.

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.

Keeping and/or flaunting a mistress [In Re: Judge Marcos A.M. No. 97-253-RTC (2001)];

2. Inebriated/drunk behavior [Lachica v. Flordeliza, A.M. No. MTJ-94-921 (1996)]; and

RATIONALE 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. It is therefore paramount that a judge’s personal behavior both in the performance of his duties and his daily life, be free from any appearance of

Demanding and/or accepting bribes [Tan v. Rosete (2004)];

3. Frequenting casinos and cockfights [City of Tagbilaran v Hontanosas, A.M. No. MTJ-98-1169 (2002)]. REAFFIRM PEOPLE’S FAITH

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Sec. 2. The behavior and conduct of judges must reaffirm the people’s faith in the integrity of the judiciary. Justice must not only merely be done but must also be seen to be done.

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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, A.M. No. RTJ-00-1601 (2001)].

LEGAL AND JUDICIAL ETHICS

C. 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. CANON 3 – Asked 17 times in the Bar. [Lex Pareto (2014)] JUDICIAL DUTIES FREE FROM BIAS Sec. 1. Judges shall perform their judicial duties without favor, bias, or prejudice.

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. Judges should not be lenient in in the administrative supervision of their employees. A judge must ensure that all court personnel perform efficiently and promptly in the administration of justice. The inclination to leniency in the administrative supervision of court employees is an undesirable trait. Oftentimes, such 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. A judge should constantly keep a watchful eye on the conduct of his employees. He should realize that big 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 know 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, A.C. No. 137-J (1971)].

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)]. EXTRAJUDICIAL SOURCE RULE Bias and prejudice must be shown to have resulted in an opinion on the merits on the basis of an extrajudicial source, not on what the judge learned from participating in the case. As long as opinions formed in the course of judicial proceedings are based on the evidence presented and the conduct observed by the magistrate, such opinion – even if later found to be erroneous – will not prove personal bias or prejudice on the part of the judge. While palpable error may be inferred from the decision or the order itself, extrinsic evidence is required to establish bias, bad faith, malice or corrupt purpose [Gochan v. Gochan (2003)]. Truth about Judge Austria’s alleged partiality cannot be determined by simply relying on the verified complaint. Bias and prejudice cannot be presumed, in light especially of a judge’s sacred obligation under his oath of office to administer justice without respect to the person, and to give equal right to the poor and rich. There should be clear and convincing evidence to prove the charge; mere suspicion of partiality is not enough. In

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this case, aside from being speculative and judicial in character, the circumstances cited by the complainant were grounded on mere opinion and surmises. The complainant also failed to adduce proof indicating the judge’s predisposition to decide the case in favor of one party. [Antonio M. Lorenzana v. Judge Ma. Cecilia I. Austria, RTC, Br. 2, Batangas City, A.M. No. RTJ-09-2200 (2014)] 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. There is undue interference where the judge's participation in the conduct of the trial tends to build or to bolster a case of one of the parties such as when he orders the presentation of specific documentary evidence without motion from any party or without participation of the parties as in the case of Ty v. Banco Filipino Savings and Mortgage Bank (2004). [However,] it is within the sound discretion of the trial judge to ask questions from witnesses, if only to clarify what may appear to be vague points in the narration. Questions designed to avoid obscurity in the testimony and to elicit additional relevant evidence are not improper [Paco et al. v. Quilala (2003)]. A judge may not be legally prohibited from sitting in a litigation. But when suggestion is made of record that he might be induced to act in favor of one party or with bias or prejudice against a litigant arising out of circumstance reasonably capable of inciting such a state of mind, he should conduct a careful self-examination. He should exercise his discretion in a way that the people's faith in the courts of justice is not impaired [Pimentel v. Salanga (1967)]. 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. Bemejo (2004)].

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MINIMIZE INSTANCES DISQUALIFICATIONS

OF

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. The underlying reason for the rules on disqualification is to ensure that a judge, sitting in a case, will at all times be free from inclinations or prejudices and be well capable to render a just and independent judgment. A litigant is entitled to nothing less than the cold neutrality of a judge. Due process requires it [Parayno v. Meneses (1994)]. 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 [46 Am. Jur. 2d Judges § 89 (1969)]. PUBLIC COMMENTS ON PENDING AND IMPENDING CASES 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. This Sec. 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.” [ABA (2007)] In Martinez v. Gironella (1975), a judge was disqualified from trying a murder case against the accused (as principal), because, in a decision in a prior case involving an alleged accessory, he stated that the accused in the present case committed the crime.

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In Palang v. Zosa (1974), the judge, in deciding a previous estafa case, stated that the charge was a “clear concocted story” which caused great damage to the accused. When a case for damages was filed by the accused against the complainant in the estafa case, the judge voluntary inhibited himself. The Supreme Court stated that the judge’s inhibition reinforced public faith in the impartial administration of justice.

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 6th civil degree or to counsel within the fourth civil degree; [Bar 1996, 1999, 2001] or

In Gutierrez vs. Santos (1961) a judge’s act of recusing himself from presiding over a case was upheld by the Supreme Court. While in private practice, the judge had expressed an opinion concerning an issue that would unduly benefit one of the parties. However, 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, G.R. No. 133250 (2003)] A judge should abstain from making public comments on any pending or impending case and should require similar restraint on the part of court personnel. [Rule 3.07, Old Code of Judicial Conduct] VOLUNTARY DISQUALIFICATIONS 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

LEGAL AND JUDICIAL ETHICS

(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. GROUNDS FOR COMPULSORY INHIBITION OF A JUDGE – ASKED IN 2004 AND 2010 [LEX PARETO (2014)] ACTUAL BIAS OR PREJUDICE In Umale v. Villaluz (1973), a judge inhibited himself from trying a robbery case due to his personal knowledge of the case. The Supreme Court stated that it is possible that the respondent Judge might be influenced by his personal knowledge of the case when he tries and decides the same on the merits, which would certainly constitute a denial of due process to the party adversely affected by his judgment or decision. Thus, it is best that, after some reflection, the judge, on his own initiative disqualified himself from hearing the robbery case and thereby rendering himself available as witness to any of the parties subject to cross-examination. In People v. Gomez (1967), the judge dismissed criminal informations on the suspicion, arising from a dinner invitation from a stranger and a subsequent personal investigation, that the court was being used as a forum for extortion and exploitation of the persons charged. The Supreme Court found this unstated extraneous matter makes the dismissal as one affected with partiality and bias. The prayer of the judge to be

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disqualified in hearing the case because he has lost all respect in the manner in which the prosecutor has been prosecuting the case was granted. ECONOMIC INTEREST OF JUDGE OR HIS FAMILY In Oktubre v. Velasco (2004), a municipal judge, as private complainant, caused three criminal complaints to be filed before his own court. He also issued a warrant of arrest and subpoenas before finally inhibiting himself from hearing the cases. The Supreme Court found him guilty of grave misconduct, gross ignorance of the law and grave abuse of authority, and dismissed him from service. It stated that the idea that a judge can preside over his own case is anathema to the notion of impartiality and that his subsequent inhibition from the three cases does not detract from his culpability for he should not have taken cognizance of the cases in the first place. REVIEWING OWN CASES In Sandoval v. CA (1996), the Supreme Court that an Associate Justice who only partly presided over a case in the trial court and who did not render the final decision cannot be said to have been placed in a position where he had to review his own decision and, as such, was not legally bound, on this ground, to inhibit himself as ponente of the case. Nevertheless, it was held that he should have voluntarily inhibited himself for his earlier involvement in the case constitutes just or valid reason under Sec. 1, Rule 137. A judge should not handle a case in which he might be perceived, rightly or wrongly, to be susceptible to bias and partiality. PREVIOUSLY SERVED AS COUNSEL A judge may validly disqualify himself due to his bias and prejudice. [However,] bias and prejudice cannot be presumed [Soriano v. Angeles (2000)]. The mere imputation of bias or partiality is not sufficient for a judge to inhibit, especially when the charge is without basis. It must be proven with clear and convincing evidence. [Gochan v. Gochan

LEGAL AND JUDICIAL ETHICS

(2003)] Moreover, it has been held that bias and prejudice must be shown to have stemmed from an extra-judicial source and result in an opinion on the merits on some basis other than the evidence presented [Aleria v. Velez (1998)]. OTHER EXAMPLES Disqualification was also allowed when the judge has been previously associated with a party as counsel, [Austria v. Masaquel (1978)] notarized the affidavit of a person to be presented as witness [Mateo v. Villaluz (1973)], if he is a material witness to a case [AmJur; Lewis v. State (2002)] “UTANG NA LOOB” Mere fact that a counsel who is appearing before a judge was one of those who recommended him to the Bench is not a valid ground from voluntary inhibition. “Utang na loob” per se should not be a hindrance to the administration of justice. Nor should recognition of such value prevent the performance of judicial duties. However, where the judge admits that he may be suspected of surrendering to the persuasions of utang na loob, and he may succumb to it considering that he and members of the family, no less shall ever remain obliged in eternal gratitude to the recommending counsel, the judge should inhibit himself. [Query of Executive Judge Estrella Estrada, etc, A.M. No. 87-9-3918-RTC (1987) cited in Lex Pareto (2014)] CLASSMATE OR FRATERNITY BROTHER A judge should not be disqualified because he was a classmate (or a co-member in a fraternity) of one of the counsels if there is no proof that such relationship results in actual bias or prejudice. To allow disqualification would unnecessarily burden other trial judges to whom the case will be assigned. Confusion would result, because a judge would then be barred from sitting in a case whenever one of his former classmates (and he could have many) appeared. [Masadao and Elizaga, cited in Lex Pareto (2014)]

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PERMITTAL OF DISQUALIFICATION

D. PROPRIETY

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 a 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.

Canon 4. Propriety and the appearance of propriety are essential to the performance of all the activities of a judge.

The decision to continue hearing the case, despite the existence of reasons for disqualification should be: (1) coupled with a bona fide disclosure to the parties-inlitigation, and (2) subject to express acceptance by all the parties of the cited reason as not material or substantial; absent these two, the judge may not be permitted to continue hearing the case. The basis of the disqualification should be disclosed, not mere “personal reasons” [ABA (2007)]. NOTICE The Court held that there is nothing in Rule V or in any other part of the Internal Rules of the Court of Appeals that specifically requires that the party-litigants be informed of the mandatory or voluntary inhibition of a Justice. However, the Court held that henceforth all the parties in any action or proceedings should be immediately notified of any mandatory disqualification or voluntary inhibition of the Justice who has participated in any action of the court, stating the reason for the mandatory disqualification or voluntary inhibition. The requirement of notice is a measure to ensure that the disqualification or inhibition has not been resorted to in order to cause injustice to or to prejudice any party or cause [Re: Letters of Judge Eduardo (2014)].

CANON 4 – Asked 23 times in the Bar. [Lex Pareto (2014)] AVOIDANCE OF IMPROPRIETY Sec. 1. Judges shall avoid impropriety and the appearance of impropriety in all of their activities. 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 [ABA (2007)]. 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. [Oca v. Estacion Jr., A.M. No. RTJ-87-104 (1995)]. The Philippine courts have also acknowledged the irrelevance of the judge’s perception of impropriety [Vidal v. Dojilo (2005)]. Thus, acts of judges which are not illegal may still violate the Code: (1) Hearing cases on the day when the judge was supposed to be on official leave [Re: Anonymous Complaint Against Acuña (2005)]; (2) Hearing a motion while on vacation in the judge’s room dressed in a polo jacket [Ignacio v. Valenzuela (1982)]; (3) Coming out of a hotel together with a subordinate, even when there is no clear evidence of sexual congress [Liwanag v. Lustre (1999)]; (4) Making a joking remark to a litigant suggesting for the latter to prove that he harbored no ill feelings toward the judge [Co v. Plata (2005)]; (5) Admonishing the bride and the groom, after conducting a marriage ceremony, to sexually satisfy each other so that they will not go astray [Hadap v. Lee (1982)].

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(6) Posting credentials as judge in Friendster and posting a picture with indecent attire [Lorenzana v. Austria (2014)].

Some instances when judges were rebuked: (1) Making sexually suggestive advances to women [Mariano v. Gonzales (1982)]; (2) Writing letter to a married woman to come to the sala after 5 pm [Hadap v. Lee (1982)];

Violent action in a public place, whatever the motive, constitutes serious misconduct and resultant outrage of the community [Arban v. Boraha (1989)]. It is highly improper for a judge to wield a high-powered firearm in public and besieged the house of a perceived defamer of character and honor in warlike fashion, berating the object of his ire with his firearm aimed at him [Saburnido v. Madrano (2001)]. ACCEPTANCE RESTRICTIONS

OF

PERSONAL

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. 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. As subjects of constant public scrutiny, personal restrictions that might be viewed as burdensome by the ordinary citizen should be freely and willingly accepted by a judge. In particular, he or she must exhibit conduct consistent with the dignity of the judicial office. Dignified conduct is best described as conduct befitting men and women possessed of temperance and respect for the law and for others. Indeed, a judge’s personal behavior, not only while in the performance of official duties, must be beyond reproach, being the visible personification of law and of justice [Re: Anonymous Complaint Against Acuña (2005)].

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(3) Assigning a female stenographer to a judge’s chamber [Ritual v. Valencia (1978)]; AVOIDANCE OF CONTROVERSY 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. 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.” [Oca v. Paderanga (2005)]. Judges should refrain from inviting counsel for one side into their chambers after or prior to sessions in court without disclosing to the other counsel the reason for such meetings, [Martinez v. Gironella (1975); being aggressive in demeanor towards a lawyer appearing before them, [Royeca v. Aminas (1976)]; and making public comments, or allowing court staff to make comments, on pending cases, [Geotina v Gonzales (1971)]. Constant company [or fraternizing] with a lawyer tends to breed intimacy and camaraderie to the point that favors in the future may be asked from a judge which he may find hard to resist. The actuation of a 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)].

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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. [ABA (2007)]. 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 is grossly improper for a judge to meet with a litigant at his home and to frequent the karaoke bar owned by such litigant, enjoying the use thereof for free [J. King & Sons v. Hontanosas (2004)]. Fraternizing with litigants tarnishes the appearance of impartiality. It is improper for a judge to meet privately with the accused without the presence of the complainant [De Guzman, Jr. v. Sison (2001)]. FREEDOM OF EXPRESSION 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.

LEGAL AND JUDICIAL ETHICS

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, judges 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. 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 [ABA (2007)]. The use of expletives [In Re Judge Acuna] and display of unbecoming behavior through sarcastic comments [Seludo v. Fineza] are frowned upon by the Court. BE INFOMED OF HIS FINANCIAL INTERESTS Sec. 7. Judges shall inform themselves about their personal fiduciary financial interests and shall make reasonable efforts to be informed about the financial interests of members of their family. Under Sec. 7(a), RA 6713, public officials and employees are prohibited from directly or indirectly having any financial or material interest in any transaction requiring the approval of their office. The Code of Judicial Conduct mandates that “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. A judge should so manage investments and other financial interests as to minimize the number of cases giving grounds for disqualification” [Catbagan v. Barte (2005)].

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LEGAL AND JUDICIAL ETHICS

When may a judge serve as an executor? A judge may only serve as the executor, administrator, trustee, guardian, or other fiduciary, for the estate, trust, or person of a member of the immediate family (spouse and relatives within the 2nd degree of consanguinity), and then only if such service will not interfere with the proper performance of judicial duties. (Rule 5.06, Old Code). He is not allowed to serve as the executor, administrator, trustee, guardian, or other fiduciary of estates other than the above. [Bar 2005, 2000, 1999, 1995, Lex Pareto (2014)] INFLUENCE OF JUDICIAL CONDUCT

Another common violation of this rule is using judicial power to exact personal vengeance. For example, it was improper when, after a confrontation between a judge’s son and the son’s teacher, the judge had the teacher arrested and arraigned before him. [AmJur; Matter of Edwards (1995)]. CONFIDENTIAL INFORMATION Sec. 9. Confidential information acquired by judges in their judicial capacity shall not be used or disclosed by, for any other purpose related to their judicial duties.

Sec. 8. Judges shall not: (a) 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; (b) 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. A judge was re reprimanded after using his letterhead in demand letters in the exercise of his duties as an administrator of an estate. This rule has two parts. The first is that a judge may not use judicial office to advance private interests. The second is that 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. The court ruled that using the said letterhead and requiring payment at his office is clearly intended to use the prestige of his judicial office to advance private interests [Oktubre v. Velasco (2004)]. Another judge who, as creditor, filed a collection case in a venue where he was one of the trial judges, was severely censured by the Supreme Court, stating that a sense of propriety should have impelled him to desist from filing in said venue, even when, under the law, he had the choice of venue. In the eyes of the public, it arouses suspicion, rightly or wrongly, that advantage is being taken of one’s position (Javier v. De Guzman, Jr. (1990)].

Releasing a draft decision to a party was considered not as a simple breach of confidentiality of the decision-making process in the case of Centrum Agri-Business Realty Corp. v. Katalbas-Moscardon (1995), but a scheme to extort money from a party. Also, a judge’s act of personally furnishing a party copies of orders issued, without the same passing through the court docket, is highly irregular, giving rise to the suspicion that the judge is partial to one of the parties in the case pending before him [Co v. Calimag (2000)]. Records of cases are necessarily confidential, and to preserve their integrity and confidentiality, access thereto ought to be limited only to the judge, the parties or their counsel and the appropriate court personnel in charge of the custody thereof. It is improper to allow a judge’s wife, who is not a court employee, much less the employee specifically in charge of the custody of said records, to have access thereto [Gordon v. Lilagan (2001)]. EXTRA-JUDICIAL ACTIVITIES OF A JUDGE Sec. 10. Subject to the proper performance of judicial duties, judges may:

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(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

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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. This Sec. should be read in conjunction with Sec. 12, Article VIII, Constitution, which prohibits members of the judiciary from being designated to any agency performing quasijudicial or administrative functions. Thus, membership of a judge in a Provincial Committee on Justice, which discharges administrative functions, will be in violation of the Constitution. However, the Supreme Court stated that this does not mean that judges should adopt monastic insensibility or unbecoming indifference to such institutions and that even as non-members, they should render assistance to help promote the laudable purposes for which they exist when such assistance may be reasonably incidental to the fulfillment of their judicial duties [In Re: Designation of Judge Manzano (1988)]. This Sec. 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. However, 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 follow-up reports and articles [ABA (2007)]. PRACTICE OF PROFESSION Sec. 11. Judges shall not practice law whilst the holder of judicial office. This prohibition is based on public policy because the rights, duties, privileges and functions of the office of an attorney-at-law are inherently incompatible with the high official functions, duties, powers, discretion

LEGAL AND JUDICIAL ETHICS

and privileges of a judge. It also aims to ensure that judges give their full time and attention to their judicial duties, prevent them from extending special favors to their own private interests and assure the public of their impartiality in the performance of their functions [Carual v. Brusola (1999)]. NOTARIAL WORK General rule: Municipal judges may not engage in notarial work. Exception: They may do so as notaries public ex-officio, in which case, they may only notarize documents connected with the exercise of their official functions. As such, they may not undertake the preparation and acknowledgement of private documents, contracts and other acts of conveyance, which bear no relation to the performance of their functions as judges. Exception to the exception: In far-flung municipalities which have neither lawyers nor notaries public, municipal judges assigned to those municipalities or circuits may, in their capacity as notaries public ex-officio, perform any act within the competence of a regular notary public, provided: (1) All notarial fees charged be for the account of the Government and turned over to the municipal treasurer; and (2) A certification be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit [Tabao v. Asis (1996)]. FORMATION OF ASSOCIATIONS Sec. 12. Judges may form or join associations of judges or participate in other organizations representing the interests of judges. This rule recognizes a 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 [ABA (2007)].

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GIFTS, REQUESTS, LOANS Sec. 13. Judges and members of their families shall neither ask for, or 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. Under Sec. 7(d), RA 6713, prohibits solicitation or acceptance by public officials and employees, directly or indirectly, of any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office.

appropriate to the occasion on which it is made provided that such gift, award of benefit might not reasonably be perceived as intended to influence the judge in the performance of judicial duties or otherwise give rise to an appearance of partiality. General rule: Judges and members of their families are prohibited from accepting any token, gift, award or benefit. Exception: Subject to legal requirements like public disclosure, they may accept gifts provided that it might not reasonably be perceived as intended to influence judge. As to gifts or grants from foreign governments, Sec. 7(d), RA 6713 allows: (a) A gift of nominal value tendered and received as a souvenir or mark of courtesy;

The act of a judge in demanding and receiving money from a party-litigant before his court constitute serious misconduct in office. It is this kind of gross and flaunting misconduct on the part of those who are charged with the responsibility of administering the law and rendering justice that so quickly and surely corrodes the respect for law and the courts without which government cannot continue and that tears apart the very bonds of our polity [Haw Tay v. Singayao (1987)].

(b) A gift in the nature of a scholarship or fellowship grant or medical treatment; or (c) Travel grants or expenses for travel taking place entirely outside the Philippine of more than nominal value if such acceptance is:

GIFTS, REQUESTS, LOANS BY STAFF Sec. 14. Judges shall not knowingly permit court staff of 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 of functions. This Sec. complements the previous Sec. and assures that what the judge cannot do directly may not be done indirectly through the use of employees or staff members [ABA (2007)]. PERMISSIBLE TOKENS AND REWARDS Sec. 15. Subject to law and to any legal requirements of public disclosure, judges may receive a token, gift, award, or benefit as

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(i)

Appropriate or consistent with the interests of the Philippines; and

(ii)

Permitted by the head of office, branch or agency to which he belongs.

E. EQUALITY Canon 5. Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office. CANON 5 – Asked 6 times in the Bar. [Lex Pareto (2014)] This is a new canon not found in the previous codes of judicial conduct. It expands the measures to promote equality required by international human rights agreements [ABA (2007)]. As the guardians of justice, courts must adhere to the principle of equality. People expect the courts to be unaffected by

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differences in social status, degree of education, and even physical abilities

lead public to believe that cases before them are being prejudged [Castillo v. Juan (1975)].

UNDERSTANDING DIVERSITY IN SOCIETY

NOT TO DIFFERENTIATE

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.

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.

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 and establish a norm of non-discrimination without distinction as to race, sex, language or religion [ABA (2007)].

Unequal and disparate treatment in the courthouse, whether intentional or perceived, is unacceptable and can negatively impact the professional lives of attorneys and employees, the assessment of claims of litigants, and the respect and credibility of the justice system [ABA (2007)].

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. In every litigation, perhaps much more so in criminal cases, the manner and attitude of a trial judge are crucial to everyone concerned, the offended party, no less than the accused. It is not for him to indulge or even to give the appearance of catering to the at times human failing of yielding to first impressions. He is to refrain from reaching hasty conclusions or prejudging matters. It would be deplorable if he lays himself open to the suspicion of reacting to feelings rather than to facts, of being imprisoned in the net of his own sympathies and predilections. Judges should avoid private remarks, hasty conclusions, or distasteful jokes that may give even erroneous impressions of prejudice and

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. 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. Court personnel shall not discriminate by dispensing special favors to anyone. They shall not allow kinship, rank, position or favors from any party to influence their official acts or duties [Sec. 3, Canon 1, Code of Conduct for Court Personnel]. 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

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proceedings and may be the subject of legitimate advocacy. Verily, a judge may, in the exercise of his sound discretion, inhibit himself voluntarily from sitting in a case, but it should be based on good, sound or ethical grounds, or for just and valid reasons. No less than imperative is that it is the judge’s sacred duty to administer justice without fear or favor [Parayno v. Meneses (1994)]. 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 [Rule 3.03, Canon 3, 1989 Code of Judicial Conduct].

DUTIES TAKE PRECEDENCE Sec. 1. The judicial duties of a judge take precedence over all other activities. A judge may, in the exercise of his discretion, inhibit himself voluntarily from sitting in a case, but it should be based on good, sound or ethical grounds, or for just and valid reasons. No less than imperative is that it is the judge’s sacred duty to administer justice without fear or favor [Parayno v. Meneses (1994)] PERFORM ADMINISTRAIVE 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.

The effect is the same when the insensitive act or comment is made by a lawyer appearing in the court and the judge does not admonish the lawyer for the insensitivity [ABA (2007)]. Thus, judges have the duty to prevent lawyers from violating the rights of witnesses. This complements Rule 12.07, Canon 12, which directs that a lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him. Since judges set the tone and environment of the court proceedings, they should censure lawyers who use sexist language or inappropriate behavior in court [ABA (2007) citing AmJur; In Re Romano (1999)]

F. COMPETENCE AND DILIGENCE Canon 6. Competence and diligence are prerequisites to the due performance of judicial office.

LEGAL AND JUDICIAL ETHICS

Failure to speedily dispose of cases on account of missing records of cases reflects an inefficient and disorderly system in the recording of cases assigned to a judge’s 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, except fortuitous events. The loss of eight records is indicative of gross misconduct and inexcusable negligence unbecoming of a judge [Longboan v. Polig (1990)]. MAINTAIN PROFESSIONAL COMPETENCE

Canon 6 – Asked 11 times in the Bar. [Lex Pareto (2014)]. A judge must be the embodiment of competence, integrity and independence, and be studiously careful to avoid the slightest infraction of the law, lest it be a demoralizing example to others [OCA v. Gines (1993)]. PAGE 89 OF 104

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 of the training and other facilities which should be made available, under judicial control, to judges.

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When a judge accepts his position, he owes it to the dignity of the court, to the legal profession, and to the public, to know the very law he is supposed to apply to a given controversy. 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. What is gross ignorance of the law? [Bar 1991, Lex Pareto (2014)] It is failure to follow basic legal commands embodied in the law and the ROC from which no one is excused, surely not a judge. (Fr. Guillen v. Judge Canon, AM No. MTJ-01-1381 (2002)]. BE INFORMED ABOUT THE LAW Sec. 4. Judges shall keep themselves informed about the relevant developments of international law, including international conventions and other instruments establishing human rights norms. Subject to the conditions set forth in Sec. 2, Article II and Sec. 21, Article VII, Constitution, international law, both customary and conventional, are part of Philippine law. The Supreme Court held that not only did Judge Bitas deviate from the requirement of a hearing where there is an application for bail, he also granted bail to Miralles without neither conducting a hearing nor a motion for application for bail. Judge Bitas’ acts are not mere deficiency in prudence, discretion and judgment on his part, but a patent disregard of well-known rules. When an error is so gross and patent, such error produces an inference of bad faith, making the judge liable for gross ignorance of the law. [Jorda v Bitas (2014)]. PROMPT DECISION MAKING Sec. 5. Judges shall perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly, and with reasonable promptness.

LEGAL AND JUDICIAL ETHICS

Sec. 1, Rule 124 requires that justice be impartially administered without unnecessary delay. This principle permeates the whole system of judicature, and supports the legitimacy of the decrees of judicial tribunals [ABA (2007)]. Prompt disposition of cases is attained basically through the efficiency and dedication to duty of judges. In a case, the civil case was already submitted for resolution. Being an ejectment case, it is governed by the Rules of Summary Procedure which clearly sets a period of 30 days from the submission of the last affidavit or position paper within which a decision must be issued. Despite this, Judge Regencia rendered judgment only more than 2 years later. While rules prescribing the time within which certain acts must be done, should be regarded as mandatory, the Court has nevertheless been mindful of the plight of judges and has been understanding of circumstances that may hinder them from promptly disposing of their businesses and, as such, has allowed extensions of time due to justifiable reasons. However, Judge Regencia failed to proffer any acceptable reason in delaying the disposition of the ejectment case, thus, making her administratively liable for undue delay in rendering a decision. [Gershon N. Dulang v. Judge Mary Jocylen G. Regencia, MCTC, Asturias-Balamban, Cebu, A.M. No. MTJ-141841 (2014)]. Every judge should decide cases with dispatch and should be careful, punctual, and observant in the performance of his functions for delay in the disposition of cases erodes the faith and confidence of our people in the judiciary, lowers its standards and brings it into disrepute. Failure to decide a case within the reglementary period is not excusable and constitutes gross inefficiency warranting the imposition of administrative sanctions on the defaulting judge [In Re Cases for Decisions Submited to Judge Baluma (2013)]. 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

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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, and control Under earlier versions of Canons of Judicial Ethics, it was held that the courts are made for the litigants, not the litigants for the courts. Punctuality was required “recognizing that the time of the litigants, witnesses, and attorneys is of value.” Judges are not allowed to tolerate abuses and neglect by clerks, sheriffs, and other assistants and to exhibit “undue interference, impatience, or participation in the examination of witnesses.” [ABA (2007)] The rights of the accused to a fair trial is far more superior to the right of press freedom. [Perez v. Estrada; Bar 2004; Lex Pareto (2014)] What are the conditions for the intervention of a judge in the presentation of evidence? [Bar 2002, 1996] While a judge may intervene in the presentation of evidence to promote justice, prevent waste of time or clear up some obscurity, properly intervent in the presentation of evidence during trial, it should always be borne in mind that undue interference may prevent the proper presentation of the cause or the ascertainment of truth. (Rule 3.06, Old Code, applied in a suppletory character; Lex Pareto (2014)]. A judge was found guilty of committing acts unbecoming of a judge and abuse of authority when he shouted invectives and threw a chair, resulting in wrist and other injuries to the complainant [Briones v. Ante, Jr. (2002)]. Another 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)].

LEGAL AND JUDICIAL ETHICS

NOT TO ENGAGE IN CONDUCT CONTRARY TO DUTIES Sec. 7. Judges shall not engage in conduct incompatible with the diligent discharge of judicial duties. When a judge accepts his position, he owes it to the dignity of the court, to the legal profession, and to the public, to know the very law he is supposed to apply to a given controversy. 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. Service in the judiciary means a continuous study and research on the law from beginning to end [Ajeno v. Inserto (1976)]. 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)]. 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, 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)].

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III. Discipline of Members of The Judiciary

LEGAL AND JUDICIAL ETHICS

A.2. IMPEACHMENT OF FORMER CHIEF JUSTICE CORONA On December 12, 2011, the House of Representatives voted to impeach Chief Justice Corona. They charged him with eight articles of impeachment alleging: (1) Betrayal of public trust;

A. SUPREME COURT

(2) Graft and corruption; and

A.1. IMPEACHMENT Members of the Supreme Court 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 [Sec. 2, Article X, 1987 Consti]. The impeachment of public officials has been established for removing otherwise constitutionally tenured and independent public officials for culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. The power to initiate impeachment cases rests with the House while the power to try the same rests with the Senate. Based on Sec. 3, Article VI, Constitution, the steps leading to impeachment are as follows: (1) A verified complaint for impeachment is filed by a member of the House or endorsed by him; (2) The complaint is included in the order of business of the House; (3) The House refers the complaint to the proper committee; (4) The committee holds a hearing, approves the resolution calling for impeachment, and submits the same to the House; (5) The House considers the resolution and votes to approve it by at least one-third of all its members, which resolution becomes the article of impeachment to be filed with the Senate when approved; and (6) The Senate tries the public official under the article [Abad, J., Separate Concurring Opinion, Gutierrez v. HOR Committee on Justice (2011)].

(3) Culpable violation of the Constitution. ARTICLES OF IMPEACHMENT Article I: Partiality and subservience in cases involving the Arroyo administration; 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; Article IV: Irregularities in issuing a quoante order against the House of Representatives in the impeachment of then Ombudsman Merceditas Gutierrez; Article V: Gerrymandering in the case of the 16-newly created cities and promotion of Dinagat into a province; 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 Department of Justice prevented them to go out of the country; Article VIII: Graft and corruption when he failed and refused to account for the judiciary development fund and special allowance for the judiciary collections. On January 16, 2012, the Senate, sitting as an impeachment court, began the trial. The prosecution dropped Articles I, IV, V, VI, VII, VIII, leaving only Articles II and III as their grounds for im peachm ent.

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On May 29, 2012, the Senate found Chief Justice Corona guilty under Article II of the articles of impeachment for his failure to declare his true statem ents 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. QUANTUM OF EVIDENCE USED An impeachment proceeding is sui generis; it is neither purely political nor criminal. Thus, it does not require proof beyond reasonable doubt. In the course of the impeachment trial, the senator-judges expressed differing views. Some argued that it requires “clear and convincing proof,” while some argued that it needs “preponderance of evidence.” The Senate has traditionally left the choice of the applicable standard of proof to each individual Senator [Black, Impeachment: A Handbook (1974)]. IMPEACHMENT (ETHICAL ASPECTS) Former 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. The prosecution alleged that he inaccurately declared his peso and dollar deports, and real estate properties. The defense argued that he did not declare his dollar deposits and peso deposits because of the banking secrecy and foreign currency deposit laws. It was also said that some undeclared assets are also co-mingled funds that he does not own solely.

LEGAL AND JUDICIAL ETHICS

B. JUDGES OF THE LOWER COURTS AND JUSTICES OF COURT OF APPEALS AND SANDIGANBAYAN TENURE 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. DISCIPLINING BODY IS THE SC 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 [Sec. 11, Article VIII, Constitution]. General rule: A judge cannot be subjected to liability – civil, criminal, or administrative – for any his official acts, not matter how erroneous, as long as he acts in good faith [Valdez v. Valera (1978)]. Ratio: A judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. This concept of judicial immunity rests upon consideration of public policy, its purpose being to preserve the integrity and independence of the judiciary [Pabalan v. Guevarra (1976)]. 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: (1) Motu propio by the Supreme Court; (2) Upon the verified complaint, supported by affidavits of persons who have personal knowledge of the facts alleged therein or by documents which may substantiate said allegations; or

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(3) 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 [Sec. 1, Rule 140]. The right to institute disbarment proceedings is not confined to clients nor is it necessary that the person complaining suffered injury from the alleged wrongdoing. The procedural requirement observed in ordinary civil proceedings that only the real party-ininterest must initiate the suit does not apply in disbarment cases. Disbarment proceedings are matters of public interest and the only basis for the judgment is the proof or failure of proof of the charges [Figueros v Jimenez (2014)]. INVESTIGATION Upon the filing of the comment of the respondent or upon the expiration of the period for such filing, which is ten days from the date of service to him of the copy of the complaint [Sec. 2, Rule 140], the SC shall: (1) Refer the matter to the Office of the Court Administrator (OCA) for evaluation, report, and recommendation; or (2) Assign the case for investigation, report, and recommendation to: (a) A retired member of the Supreme Court, if the respondent is a justice of the Court of Appeals and the Sandiganbayan; (b) 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

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HEARING AND TERMINATION The investigating justice of judge shall set a day for the hearing and send notice to the parties. If the respondent fails to appear, the investigation shall proceed ex parte. The investigating justice or judge shall terminate the proceedings: (1) Within 90 days from the date of its commencement; or (2) Within such extension as the Supreme Court may grant [Sec. 4, Rule 140]. REPORT AND ACTION Within 30 days from termination, the investigating justice or judge shall submit to the Supreme Court a report containing his findings of fact and recommendation, accompanied by the evidence and pleadings filed by the parties. Such report shall be confidential and shall be for the exclusive use of the Supreme Court. A copy of the decision or resolution of the court shall be attached to the record of the respondent in the OCA [Secs. 5 and 12, Rule 140] The Supreme Court shall take action on the report as the facts and the law may warrant [Sec. 6, Rule 140] AUTOMATIC CONVERSION OF ADMINISTRATIVE CASES TO DISCIPLINARY PROCEEDINGS Pursuant to A.M. No. 02-9-02-SC, administrative cases against justices of the Court of Appeals and the Sandiganbayan, judges of regular and special courts, and court officials who are lawyers, shall also be considered a disciplinary action against them, if they are based on grounds which are likewise grounds for the disciplinary action of members of the bar for:

(c) A judge of the Regional Trial Court, if the respondent is a judge of an inferior court [Sec. 3, Rule 140].

(1) Violation of the Lawyer's Oath; (2) Violation of the Code of Professional Responsibility; (3) Violation of the Professional Ethics; or

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(4) Such other forms of breaches of conduct that have been traditionally recognized as grounds for the discipline of lawyers. The respondent is required to comment on the complaint and show cause why he should not also be suspended, disbarred or otherwise disciplinarily sanctioned as a member of the bar. Judgment in both respects may be incorporated in one decision or resolution.

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(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. 8, Rule 140].

EFFECT OF WITHDRAWAL OR DESISTANCE The actuations of a judge seriously affect the public interest inasmuch as they involve the administration of justice. It is for this reason that a motion to withdraw a complaint will not justify the dismissal of the administrative case against the judge. To condition administrative actions upon the will of every complainant, who may, for one reason or another, condone a detestable act, is to strip the Supreme Court of its supervisory power to discipline erring members of the judiciary [Anguluan v. Taguba (1979)]. Complainant's desistance is not an obstacle to the taking of disciplinary action against a judge if the record reveals that he had not performed his duties properly [Espayos v. Lee (1979)].

The word “misconduct” implies a wrongful intention and not a mere error or judgment. For serious [or gross] misconduct to exist, there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-known legal rules [In re: Impeachment of Horrilleno (1922)]. 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)]. Sanctions: (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 governmentowned or controlled corporations. Forfeiture of benefits does not include accrued leave credits;

C. GROUNDS AND SANCTIONS Administrative charges are classified as serious, less serious, or light [Sec. 7, Rule 140]

(2) Suspension from office without salary and other benefits for more than three but not exceeding six months; or

SERIOUS CHARGES

(3) A fine of more than P20,000.00 but not exceeding P40,000.00; [Sec. 11, Rule 140]

(1) Bribery, direct or indirect; (2) Dishonesty and violations of the AntiGraft and Corrupt Practices Law (RA 3019); (3) Gross misconduct constituting violations of the Code of Judicial Conduct;

LESS SERIOUS CHARGES

(4) Knowingly rendering an unjust judgment or order as determined by a competent court in an appropriate proceeding; PAGE 95 OF 104

(1) Undue delay in rendering a decision or order, or in transmitting the records of a case; (2) Frequently and unjustified absences without leave or habitual tardiness;

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(3) Unauthorized practice of law; (4) Violation of Supreme directives, and circulars;

Court

(5) Receiving additional compensation unless authorized by law;

or

LEGAL AND JUDICIAL ETHICS account, thus converting the trust fund to personal use [Barja v. Beracio (1976)];

rules,

(3) Extorting money from a party-litigant who has a pending case [Haw Tay v. Singayao (1988)]:

double specifically

(4) Solicitation of donation for office equipment [Lecaroz v. Garcia (1981)];

(6) Untruthful statements in the certificate of service; and

(5) Frequent unauthorized absences in office [Municipal Council of Casiguruhan, Quezon v. Morales (1974)];

(7) Simple misconduct [Sec. 9, Rule 140] Sanctions:

(6) Delay in the disposition of cases in violation of the canon that a judge must promptly dispose of all matters submitted to him [Balagot v. Opinion (1991)];

(1) Suspension from office without salary and other benefits for not less than one nor more than three months; or (2) A fine of more than P10,000.00 but not exceeding P20,000.00 [Sec. 11, Rule 140].

(7) Unduly granting repeated motions for postponement [Araza v. Reyes (1975)]; (8) Unawareness of or unfamiliarity with the application of the Indeterminate Sentence Law and duration and graduation of penalties [In re: Paulin (1980)];

LIGHT CHARGES (1) Vulgar and unbecoming conduct; (2) Gambling in public;

(9) Reducing to a ridiculous amount (P6,000.00) the bail bond of the accused murderer, enabling him to escape the toils of the law [Soriano v. Mabbayad (1975)].

(3) Fraternizing with lawyers and litigants with pending case/cases in his court; and (4) Undue delay in the submission of monthly reports.

(10) Imposing the penalty of subsidiary imprisonment on a party for failure to pay civil indemnity in violation of RA 5465 [Monsanto v. Palarca (1983)].

Sanctions: (1) A fine of not less than P1,000.00 but not exceeding P10,000.00; and/or (2) Censure;

GUIDELINES JUDICIAL CLEMENCY IN ADMINISTRATIVE CASES [Sultan Ali v. Judge Pacalna, A.M. No. MTJ-03 1505 (2013)].

(3) Reprimand; (4) Admonition with warning. ILLUSTRATIVE CASES The following have been subject to discipline by the Supreme Court: (1) Failure to deposit funds with the municipal treasurer or produce them despite promise to do so [Montemayor v. Collado (1981)]; (2) Misappropriation of fiduciary funds (i.e., proceeds of cash bail bond) by depositing the check in a personal

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(1) There must be proof of remorse and reformation. These shall include but should not be limited to certifications or testimonials of the officer(s) or chapter(s) of the Integrated Bar of the Philippines, judges or judges associations and prominent members of the community with proven integrity and probity. A subsequent finding of guilt in an administrative case for the same or similar misconduct will give rise to a strong presumption of non-reformation;

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(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 (such as intellectual aptitude, learning or legal acumen or contribution to legal scholarship and the development of the legal system or administrative and other relevant skills), as well as potential for public service; (5) There must be other relevant factors and circumstances that may justify clemency.

LEGAL AND JUDICIAL ETHICS

III. Disqualifications of Justices and Judges [Rule 137] NOTE: Asked 3 times in the Bar; 1994, 1991, 2008. [Lex Pareto (2014 ed)]

A. COMPULSORY DISQUALIFICATION No judge or judicial officer shall sit in any case, without the written consent of all parties in interest and entered upon the record, in which: (1) He, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise; or (2) 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; (3) He has been executor, administrator, guardian, trustee or counsel; or (4) He has presided in any inferior court when his ruling or decision is the subject of review. [Sec. 1, 1st par., Rule 137] REASON FOR THE RULE The rule on compulsory disqualification of a judge to hear a case rests on the salutary principle that no judge should preside in a case in which he 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 its fairness and as to his integrity. The law conclusively presumes that a judge cannot objectively or impartially sit in such a case and, for that reason, prohibits him and strikes at his authority to hear and decide it, in the absence of written consent of all parties concerned. The purpose is to preserve the people's faith and confidence in the courts' justice [Garcia v. De La Peña (1994)] The relationship of the judge with one of the parties may color the facts and distort the law

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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. Comelec (1996)].

LEGAL AND JUDICIAL ETHICS

IV. Powers and Duties of Judicial Officers A. ADMINISTRATION OF JUSTICE

B. VOLUNTARY DISQUALIFICATION Rule 137. Sec. 1., 2nd par. 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.

Justice shall be impartially administered without unnecessary delay [Sec. 1, Rule 135] Courts of justice shall always be open, except on legal holidays, for the: (1) Filing of any pleadings, motion or other papers;

REASON FOR THE RULE A judge must maintain and preserve the trust and faith of the parties-litigants. He must hold himself above reproach and suspicion. At the very first sign of lack of faith and trust to his actions, whether well-grounded or not, the judge has no other alternative but inhibit himself from the case. A judge may not be legally prohibited from sitting in a litigation, but when circumstances appear that will induce doubt to his honest actuations and probity in favor of either party, or incite such state of mind, he should conduct a careful self-examination. He should exercise his discretion in a way that the people's faith in the courts of justice is not impaired. The better course for the judge under such circumstances is to disqualify himself. That way, he avoids being misunderstood, his reputation for probity and objectivity is preserved [Bautista v. Rebueno (1978)]. 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)].

(2) Trial of cases; (3) Hearing of motions; and (4) For the issuance of orders or rendition of judgments.

B. PUBLICITY OF PROCEEDINGS General rule: The sitting of every court of justice shall be public. Exception: 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 [Sec. 2, Rule 135].

C. PUBLICITY OF RECORDS General rule: The records of every court of justice shall be public records and shall be available for the inspection of any person: (1) At all proper business hours; (2) Under the supervision of the clerk having custody of such records. Exception: The court may, in any special case, forbid publicity of records, in the interest of morality or decency [Sec. 2, Rule 135].

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D. ENFORCEABILITY PROCESS

JUDICIAL ETHICS

OF

COURT

D.1. SUPERIOR COURTS Process issued from a superior court in which a case is pending may be enforced in any part of the Philippines: (1) To bring in a defendant;

LEGAL AND JUDICIAL ETHICS

E. INHERENT POWERS OF COURTS: (1) To preserve and enforce order in its immediate presence; (2) To enforce order in proceedings before a person or persons empowered to conduct a judicial investigation under its authority;

(3) To execute any order or judgment of the court [Sec. 3, Rule 135]

(3) To compel obedience to its judgments, orders and processes, and to the lawful order of judge out of court, in a case pending therein;

D.2. INFERIOR COURTS General rule: Process of inferior courts shall be enforceable within the province where the municipality or city lies.

(4) 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;

(2) For the arrest of any accused person; or

Exceptions: (1) It may be served outside the boundaries of the province with the approval of the judge of the Regional Trial Court of said province, and only in the following cases: (a) When an order for the delivery of personal property lying outside the province is to be complied with; (b) When an attachment of real or personal property lying outside the province is to be made; (c) When the action is against two or more defendants residing in different provinces; and (d) When the place where the case has been brought is that specified in a contract in writing between the parties, or the place of the execution of such contract as appears therefrom; (2) 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; (3) 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 justices require such service [Sec. 4, Rule 135].

(5) To compel the attendance of persons to testify in a case pending therein; (6) 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; (7) To amend and control its process and orders so as to make them conformable to law and justice; (8) To authorize 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].

F. 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].

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G. TRIAL, HEARINGS AND OTHER ACTS All trial 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]

H. INTERLOCUTORY ORDERS OUT OF PROVINCE

LEGAL AND JUDICIAL ETHICS

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 of the judgment. If a case has been heard only in part, the Supreme Court, upon petition of any of the parties to the case and the recommendation of 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]

When within the district but without the province, a judge of Regional Trial Court shall nevertheless have power to hear and determine any interlocutory motion or issue after due and reasonable notice to the parties. The hearing may be had at any place in the judicial district which the judge deems convenient on the filing, in any RTC: (1) Of a petition for the writ of habeas corpus; (2) For release upon bail or reduction of bail [Sec. 8, Rule 135]. SIGNING JUDGMENTS OUT OF PROVINCE It shall be lawful for a judge to prepare and sign his decision anywhere within the Philippines: (1) Whenever a judge, appointed or assigned in any province or branch of a Regional Trial Court in a province, shall leave the province: (a) By transfer or assignment to another court of equal jurisdiction; or (b) By expiration of his temporary assignment; (2) Without having decided a case, which was: (a) Totally heard by him; and (b) Argued or an opportunity given for argument to the parties or their counsel. PAGE 100 OF 104

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V. Court Records and General Duties of Clerks and Stenographers [Rule 136]

iii. Safekeeping 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 seal and furniture belonging to his office [Sec. 7, Rule 136]. iv. Keeping a 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.

A. CLERKS OF COURT A.1. OFFICE OF THE CLERK OF COURT 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 the office in Manila and all papers authorized or required to be filed therein shall be filed in Manila [Sec. 3, Rule 136]

The following shall be entered in the docket, so that by reference to a single page, the history of a case may be seen: (1) All cases, numbered consecutively in the order in which they were received; (2) Under the heading of each case and a complete title thereof: (a) The date of each paper filed or issued; (b) Each order or judgment entered; and

A.2. DUTIES OF THE CLERK OF COURT i. Issuance of Process

(c) Each other step taken in the case [Sec. 8, Rule 136].

(1) 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.

v. Keeping a Docum ent and Entries Book The clerk shall keep: (1) A judgment book containing a copy of each judgment rendered by the court in order of its date; and

(2) The clerk 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. ii. Reception of Papers Preparation of Minutes

LEGAL AND JUDICIAL ETHICS

(2) 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].

and vi. Keeping an Execution Book

The clerk of each superior court shall: (1) Receive and file all pleadings and other papers properly presented, endorsing on each such paper the time when it was filed; and (2) 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].

The clerk shall keep an execution book in which he or his deputy shall record at length in chronological order each execution, and the officer’s return thereon, by virtue of which real property has been sold [Sec. 10, Rule 136].

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vii. Certification of 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]. viii. Indexing Books and Separating Cases (1) The general docket, judgment book, entries book and execution book shall each be indexed in alphabetical order in the names of the parties, and each of them. (2) 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]. ix. Keeping Other books and Other Duties The clerk shall keep such other books and perform such other duties as the court may direct [Sec. 12, Rule 136]. x. In the Absence or by Direction of Judge (1) 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 the Rules of Court. (2) The clerk 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 the findings in relation to the same, if the judge shall

LEGAL AND JUDICIAL ETHICS direct him to make findings and include the same in his report [Sec. 5, Rule 136].

A.3. TAKING OF RECORDS FROM CLERK’S OFFICE No record shall be taken from the clerk’s office without an order of the court except as otherwise provided by these rules. However, the Solicitor General or any of his assistants, the provincial fiscal or his deputy, and the attorneys de oficio shall be permitted, upon proper receipt, to withdraw from the clerk’s office the record of any case in which they are interested [Sec. 14, Rule 136]

B. STENOGRAPHERS 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. 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 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. 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].

C. DOCKETS AND OTHER RECORDS OF INFERIOR COURTS Every municipal or city judge shall keep a well-bound labeled “docket.” He may keep two dockets, one for civil and one for criminal cases.

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In such docket, he shall enter for each case: (1) Title of the case including the name of all the parties; (2) The nature of the case, whether civil or criminal, and if the latter, the offense charged; (3) The date of issuing preliminary and intermediate process including order of arrest and subpoenas, and the date and nature of the return thereon; (4) The date of the appearance of default of the defendant; (5) The date of presenting the plea, answer, or motion to quash, and the nature of the same; (6) The minutes of the trial, including the date thereof and of all adjournments; (7) The names witnesses;

and

addresses

of

VI. Legal Fees [Rule 141] A. MANNER OF PAYMENT Upon the 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] B. FEES IN LIEN The party concerned shall pay additional fees, where the court in its final judgment awards: (1) A claim not alleged; or

all

(8) The date and nature of the judgment, and, in a civil case, the relief granted; (9) An itemized statement of the costs; (10) The date of any execution issued, and the date and contents of the return thereon;

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(2) A relief different from, or more than that claimed in the pleading. The additional fees which shall constitute a lien on the judgment. The clerk of court shall assess and collect the corresponding fees. [Sec. 2, Rule 141, RoC]

(11) The date of any notice of appeal filed and the name of the party filing the same.

C. PERSONS AUTHORIZED TO COLLECT LEGAL FEES

He shall also:

Except as otherwise provided in Rule 141, the following officers and persons, 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:

(1) Keep all the pleadings and other papers and exhibits in cases pending in his court; and (2) Certify copies of his docket entries and other records proper to be certified, for the fees prescribed by the Rules of Court.

(1) Clerks of the Supreme Court, Court of Appeals, Sandiganbayan and Court of Tax Appeals; (2) Clerks of Regional Trial Courts; (3) Clerks of first level courts; (4) Sheriffs, process servers and other persons serving processes; (5) Stenographers; (6) Notaries; (7) Other officers taking depositions.

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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 [Sec. 3, Rule 141] 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 v. Asuncion, G.R. Nos. 79937-38 (1989)]

LEGAL AND JUDICIAL ETHICS

VII. Costs [Rule 142] A. RECOVERY OF COSTS A.1. PREVAILING PARTY Unless otherwise provided in the Rules of Court, costs shall be allowed to the prevailing party as a matter of course, but the court shall have power, for special reasons, to adjudge: (1) That either party shall pay the costs of an action; or (2) That the same shall be divided between them, as may be equitable. No costs shall be allowed against the Republic of the Philippines, unless otherwise provided by law [Sec. 1, Rule 142] A.2. DISMISSED ACTION OR APPEAL 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] A.3. FRIVOLOUS APPEAL Where an action or an appeal is found to be frivolous, double, or treble costs may be imposed on the plaintiff or appellant, which shall be paid by his attorney, if so ordered by the court [Sec. 3, Rule 142] A.4. 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]. A.5. 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]

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