Legal Ethics – Code of Judicial Conduct
Code of Judicial Conduct
An honorable, competent and independent judiciary exists to administer justice and thus promote the unity of the country, the stability of government, and the well being of the people.
CANON 1- A judge should uphold the integrity and independence of the judiciary
Rule 1.01 – A judge should be the embodiment of competence, integrity, and independence.
Rule 1.02 – A judge should administer justice impartially and without delay.
Rule 1.03 – A judge should be vigilant against any attempt to subvert the independence of the judiciary and resist any pressure from whatever source.
- Judges should avoid even the slightest infraction of the law.
- Must be models of uprightness, fairness and honesty
- Should not relax in his study of the law and court decisions.
- Should not be swayed by public clamor or considerations of personal popularity
- Must decide motions without delay.
- Should also appear impartial.
CANON 2 – A judge should avoid impropriety and the appearance of impropriety in all activities.
Rule 2.01 – A judge should so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary.
Rule 2.02 – A judge should not seek publicity for personal vainglory.
Rule 2.03 – A judge shall not allow family, social, or other relationships to influence judicial conduct or judgment. The prestige of judicial office shall not be used or lent to advance the private interests of others, nor convey or permit others to convey the impression that they are in a special position to influence the judge.
Rule 2.04 – A judge shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court of administrative agency.
- A judge must be beyond suspicion. He has the duty not only to render a just and impartial decision but also to render it in such a manner as to be free from any suspicion as to its fairness and impartiality, and also as to his integrity.
- Every litigant is entitled to nothing short of the cold neutrality of an independent, wholly free, disinterested and impartial tribunal.
- A judge must be temperate in his language and must not lose his cool.
- A judge is prohibited from making public statements in the media regarding a pending case so as not to arouse public opinion for or against a party (violates the Principle of Subjudice)
- Judges must not use or permit the use of any undignified/self-laudatory statement regarding their qualifications or legal services.
- A judge must not allow anyone to ride on his prestige. He should not create the impression that someone or some people are so close to him to enjoy his favor.
CANON 3 - A judge should perform official duties honestly, and with impartiality and diligence.
Rule 3.01 – A judge shall be faithful to the law and maintain professional competence.
- Judge should be conversant with the law and its amendments.
Rule 3.02 – In every case, a judge shall endeavor diligently to ascertain the facts and the applicable law unswayed by partisan interest, public opinion or fear of criticism.
- Finding of facts must be based not on the personal knowledge of the judge but upon the evidence presented.
- If the personal view of the judge contradicts the applicable doctrine promulgated by the Supreme Court, nonetheless, he should decide the case in accordance with that doctrine and not in accordance with his personal views. He is however not prohibited from stating his own opinion on the matter if he wants to invite constructive attention thereto.
Rule 3.03 – A judge shall maintain order and proper decorum in the courts.
Rule 3.04 – A judge should be patient, attentive, and courteous to lawyers, especially the inexperienced, to litigants, witnesses, and others appearing before the court. A judge should avoid unconsciously falling into the attitude of mind that the litigants are made for the courts, instead of the courts for the litigants.
- Conduct of trial must not be attended with fanfare and publicity; not permit pictures or broadcasting.
- Must use temperate language; should not make insulting remarks.
Rule 3.05 – A judge shall dispose of the court’s business promptly and decide cases within the required periods.
Rule 3.06 – While a judge may, to promote justice, prevent waste of time or clear up some obscurity, properly intervene in the presentation of evidence during the trial, it should always be borne in mind that undue interference may prevent the proper presentation of the cause of the ascertainment of the truth.
Rule 3.07 – 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.
- Judge should take notes and rely on transcripts.
- Judge is not excused if stenographer is overloaded. He is excused for delay on grounds of multifarious motions; appellate court enjoins judge from further proceeding; heavy caseload.
Rule 3.08 – A judge should diligently discharge administrative responsibilities, maintain professional competence in court managements, and facilitate the performance of the administrative functions of other judges and court personnel.
Rule 3.09 – A judge should organize and supervise the court personnel to ensure the prompt and efficient dispatch of business, and require at all times the observance of high standards of public service and fidelity.
Rule 3.10 – A judge should take or inititate appropriate disciplinary measures against lawyers or court personnel for unprofessional conduct of which the judge may have become aware.
Rule 3.11 – A judge should appoint commissioners, receivers, trustees, guardians, administrators and others strictly on the basis of merit and qualifications, avoiding nepotism, and favoritism. Unless otherwise allowed by law, the same criteria should be observed in recommending appointment of court personnel. Where the payment of compensation is allowed, it should be reasonable and commensurate with the fair value of services rendered.
- Ascertain that the records of all cases are properly kept and managed.
- Maintain a checklist on the cases submitted for decision with a view to know exactly the specific deadlines for the resolution/decision of the said cases.
- Loss of records: gross negligence
- Should be a good manager.
- May not summarily suspend a lawyer for indirect contempt.
- Judge has the power to appoint, but the power to dismiss court employees is vested in the Supreme Court.
- If knowingly nominate or appoint to any public office any person lacking the legal qualification therefor, shall be guilty of unlawful appointment punishable with imprisonment and fine (Art 244, RPC).
Rule 3.12 – A judge should take no part in proceeding where the judge’s impartiality might reasonably be questioned. These cases include, among others, proceedings where;
- the judge has personal knowledge of disputed evidentiary facts concerning the proceeding;
- the judge served as executor, administrator, guardian, trustee or lawyer in the case or matters in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein;
- the judge’s ruling in a lower court is subject of review
- the judge is related by consanguinity or affinity to a party litigant within the 6thdegree or to counsel within the 4thdegree;
- the judge knows that the judge’s 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 proceeding.
In every instance the judge shall indicate the legal reason for inhibition.
- Petition to disqualify judge must be filed before rendition of judgment by the judge; can’t be raised first time on appeal.
- If a judge denies petition for disqualification, the ultimate test: is whether or not the complaint was deprived of a fair and impartial trial. Remedy: seek new trial.
REMITTAL OF DISQUALIFICATION
Rule 3.13 – A judge disqualified by the terms of Rule 3.12 may, instead of withdrawing from the proceeding, disclose on the record the basis of disqualification. If, based on such disclosure, the parties and lawyers independently of the judge’s participation, all agree in writing that the reason for the inhibition is immaterial or insubstantial, the judge may then participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceeding.
CANON 4 – A judge may, with due regard to official duties, engage in activities to improve the law, the legal system and the administration of justice.
Rule 4.01 – A judge may, to the extent that the following activities do not impair the performance of judicial duties or case doubt on the judge’s impartiality:
- speak, write, lecture, teach or participate in activities concerning the law, the legal system and the administration of justice;
- appear at a public hearing before a legislative or executive body on matters concerning the law, the legal system or the administration of justice and otherwise consult with them on matters concerning the administration of justice;
- serve on any organization devoted to the improvement of the law, the legal system or the administration of justice.
- Decision to engage in these activities depends upon the sound judgement of the judge.
- If has not enough time to spare (such as when caseload is too heavy) prudence dictates, he must concentrate on his judicial duties.
- If a judge has time to spare, the best attitude to take is to participate in activities which are closely related to the performance of his duties and which do not consume much of his time and energy.
CANON 5 – A judge should regulate extra-judicial activities to minimize the risk of conflict with judicial activities.
VOCATIONAL, CIVIC AND CHARITABLE ACTIVITIES
Rule 5.01 – A judge may engage in the following activities provided that they do not interfere with the performance of judicial duties or detract from the dignity of the courts:
- write, lecture, teach and speak on non-legal subjects;
- engage in the arts, sports, and other special recreational activities;
- participate in civic and charitable activities;
- serve as an officer, director, trustee, or non-legal advisor of a non-profit or non-political, educational, religious, charitable, fraternal, or civic organization.
- If they opt to engage in such activities, they must learn how to manage their time in such manner that their judicial responsibilities do not falter and suffer.
Rule 5.02 – A judge shall refrain from financial and business dealings that tends to reflect adversely on the court’s impartiality, interfere with the proper performance of judicial activities, or increase involvements 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.
Rule 5.03 – Subject to the provisions of the proceeding rule, a judge may hold and manage investments but should not serve as an officer, director, manager, advisor, or employee of any business except as director of a family business of the judge.
Rule 5.04 – A judge or any, immediate member of the family, shall not accept a gift, bequest, favor or loan from anyone except as may be allowed by law.
Rule 5.05 – No information acquired in a judicial capacity shall be used or disclosed by a judge in any financial dealing or for any other purpose not related to judicial activities.
- Prohibitions under the Revised Penal Code:
Art 215. Prohibited Transaction. The penalty of prision correccional in its minimum period or a fine ranging from P200 to P1000 or both, shall be imposed upon any appointive public officer who, during his incumbency, shall directly or indirectly become interested in any transaction of exchange or speculation within the territory subject to his jurisdiction.
Art 216. Possession of prohibited interest by a public officer. The penalty of arresto mayorin its medium period to prision correccional in its minimum period, or a fine ranging from P200 to P1000, or both, shall be imposed upon a public officer who directly and indirectly, shall become interested in any contract or business which it is his official duty to intervene.
- Sec 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
(h) Directly or indirectly having financial or pecuniary interest in any business, or contract or transaction in connection with which here intervenes or takes part in his official capacity or in which he is prohibited by the Constitution or by any law from having any interest, (Sec. 3(h), RA 3019)
- General Rule: Avoid taking or receiving loans from litigants.
- Exception(AGCPA): Unsolicited gifts or presents of small value offered or given as a mere ordinary token of gratitude or friendship according to local custom or usage.
Rule 5.06 – A judge should not serve as the execution administrator, trustee, guardian, or other fiduciary, except for the estate, trust, or person of a member of the immediate family and then only if such service will not interfere with the proper performance of judicial duties. “member of immediate family” shall be limited to the spouse and relatives within the second degree of consanguinity. As a family fiduciary, a judge shall not:
- serve in proceedings that might come before the court of said judge; or
- act as such contrary to Rule 5.02 to 5.05
PRACTICE OF LAW AND OTHER PROFESSION
Rule 5.07 – A judge shall not engage in the private practice of law. Unless prohibited by the Constitution or law, a judge may engage in the practice of any other profession provided that such practice will not conflict or tend to conflict with judicial functions.
- Includes preparation of pleadings or papers in anticipation of litigation, and giving of legal advice to clients or persons needing the same.
- Not engage in notarial work. Exception: “Notaries public ex-oficio” – may engage only in notarization of documents connected with the exercise of their official functions. Provided, all notarial fees on account of the government and certification attesting to lack of any lawyer or Notary Public.
- Sworn statement of assets and liabilities including statement of amounts and services of income, the amount of personal and family expenses and the amount of income tax is paid for the next preceding calendar year.
Rule 5.08 – A judge shall make full financial disclosure as required by law.
Rule 5.09 – A judge shall not accept appointment or designation to any agency performing quasi-judicial or administrative functions.
Rule 5.10 – 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.
COMPLIANCE WITH THE CODE OF JUDICIAL CONDUCT
All judges shall strictly comply with this code
DATE OF EFFECTIVITY
This code, promulgated on 5 September 1989, shall take effect on 20 October 1989.
- An administrative case against a judge is not necessarily dismissed by the withdrawal by or desistance of the complainant.
- Retirement, resignation or promotion of a judge does not necessarily render moot and academic all the cases against him.
- Civil Liabilities Re Official Functions:
- obstructs, defeats, violates or in any manner impedes or impairs the civil rights.
- Willful or negligent rendition of a decision which causes damages to another
- For damages: rendering/neglecting to decide a case causing loss to a party.
- Civil Code Disabilities:
Rule: Can’t purchase properties subject of litigation is his court.
Exception: Does not apply where the subject property was not acquired from any of the parties to the case, nor will it apply when the litigation is already finished.
But… while in a technical sense, the judge may not have acquired the property in litigation in a case before him, nevertheless, it is improper for him to have done so under the canons of judicial ethics.
- Donations made to a judge by reason of his office are void.
- Taking advantage of his position to boost his candidacy amounts to gross misconduct.
- Cannot serve as officers or advisers of political groups.
Criminal Liabilities of Judges
- Malfeasance under the RPC:
- Knowingly Rendering Unjust Judgment (Art. 204, RPC)
The elements are:
- that the officer is a judge;
- that he renders judgment in a case submitted to him for decision;
- that the judgment is unjust;
- the judge knows that his judgment is unjust.
- Judgment Rendered Through Negligence (Art. 205, RPC)
The elements are:
- that the offender is a judge;
- that he renders judgment in a case submitted to him for decision
- that the judgment is manifestly unjust;
- that is due to his inexcusable negligence or ignorance.
- Powers and Duties of a Notary Public
Section 241 of the Revised Administrative Act enumerates the General Powers of a Notary Public:
- To administer all oaths and affirmations provided for by law:
- in all matters incident to his notarial office;
- in the execution of:
- other documents requiring an oath
- To receive proof or acknowledgment of all writings relating to commerce, such as
- ships, vessels or boats:
- Bills of Exchange
- charter parties or affreightments
- letters of attorney
- land/buildings or interest therein:
- transfers and assignments
- other writings as are commonly provided or acknowledged before notaries.
- ships, vessels or boats:
3. To act as magistrate in the writing of affidavits or depositions
4. To make declarations and certify the truth thereof under his seal of office, concerning all matters done by him in virtue of his office.
- The law imposes on the notary public two kinds of duties:
- execution of formalities required by law; and
- verification of the capacity and identity of the parties as well as the legality of the act executed.
- Extent of Jurisdiction of a Notary Public:
Under the Notarial Law, the jurisdiction of a notary public in general, used to be CO-EXTENSIVE with the province for which he was commissioned; and for the notary public in the City of Manila, the jurisdiction is CO-EXTENSIVE with said city. Circular 8 of 1985 however, clarified further that the notary public may be commissioned for the same term only by one court within the Metro Manila region.
- Q: Must a Notary Public always be a LAWYER?
A: General Rule: Only those admitted to the practice of law are qualified to be notaries public.
Exception: When there are no persons with the necessary qualifications OR where there are qualified persons but refuse appointment. In which case, the following persons may be appointed as notaries:
- those who have passed the studies of law in a reputable university
- a clerk or deputy clerk of court for a period of not less than two years
- Effects of NOTARIZATION
- The notary, in effect, proclaims to the world:
- that all the parties therein personally appeared before him
- that they are personally known to him
- that they are the same persons who executed the instrument
- that he inquired into the voluntariness of the execution of the instrument; and
- that they acknowledged personally before him that they voluntarily and freely executed the same
- Converts a private document into a public one and renders it admissible in court without further proof of its authenticity. (Joson vs. Baltazar)
- Documents enjoy a presumption of regularity. It constitutes prima facie evidence of the facts which give rise to their execution and of the date of said execution, but not of the truthfulness of the statements. The reason for the former presumption is that the law assumes that the act which the officer witnesses and certified to or the date written by him are not shown to be false since notaries are public officers.
Legal Ethics – Special Disabilities of Lawyers and Judicial Ethics
Special Disabilities of Lawyers
The following persons are prohibited from acquiring property under litigation by reason of the relation of trust or their peculiar control either directly or indirectly and even at a public or judicial auction:
- public officers and employees
- judicial officers and employees
- prosecuting attorneys and lawyers (Art 1491, NCC)
- those specially disqualified by law (Rubias vs. Batilles, 31 SCRA 120)
- Elements of Article 1491 (Civil Code; Laig vs. CA, 82 SCRA 294)
- there must be an attorney-client relationship
- the property or interest of the client must be in litigation
- the attorney takes part as counsel in the case
- the attorney by himself or through another purchases such property or interest during the pendency of the litigation.
- General Rule: A lawyer may not purchase, even at a public or judicial auction, in person or through the mediation of another, any property or interest involved in any litigation in which he may take part by virtue of his profession. This prohibition is entirely independent of fraud and such need not be alleged or proven.
- malpractice on the part of the lawyer and may be disciplined for misconduct
- transaction is null and void
- property is acquired by lawyer through a contingent fee arrangement
- any of the 4 elements of Art. 1491 is missing
- Sources of Judicial Ethics:
- Code of Judicial Conduct
- Constitution (Art VIII, Art IX and Art III)
- New Civil Code (Articles 9, 20, 27, 32, 35, 739, 1491, 2005, 2035, 2046)
- Revised Rules of Court (Rules 71, 135, 137, 139B, 140)
- Revised Penal Code (Articles 204, 205, 206, 207)
- Anti-Graft and Corrupt Practices Act (RA 3019)
- Canons of Judicial Ethics (Adm. Order No. 162)
- Code of Professional Responsibility
- Judiciary Act of 1948 (RA 296)
10. Judiciary Reorganization Act of 1930 (BP129)
11. Supreme Court Decisions
12. Foreign Decisions
13. Opinions of authorities
14. Other Statutes
15. SC Circulars
- Court –a board or other tribunal which decides a litigation or contest (Hidalgo v. Manglapus, 64 OG 3189)
- Judge –a public officer who, by virtue of his office, is clothed with judicial authority, a public officer lawfully appointed to decide litigated questions in accordance with law.
- De Jure Judge –one who is exercising the office of judge as a matter of right; and officer of a court who has been duly and legally appointed, qualified and whose term has not expired.
- De Facto Judge –an officer who is not fully vested with all the powers and duties conceded to judges, but is exercising the office of a judge under some color of right.
- Qualification of Supreme Court Members:
- Natural born citizen of the Philippines;
- At least 40 years of age;
- Must have been at least for 15 years, a judge of a lower court or engaged in the practice of law (Sec 7(2), Art. VIII, 1987 Constitution).
Legal Ethics – Liabilities of Lawyers
Liabilities of Lawyers
- Civil Liability
- Client is prejudiced by lawyer’s negligence or misconduct
- Breach of fiduciary obligation
- Civil liability to third persons
- Libelous words in pleadings; violation of communication privilege
- Liability for costs of suit (treble costs) – when lawyer is made liable for insisting on client’s patently unmeritorious case or interposing appeal merely to delay litigation
- Criminal Liability
- Prejudicing client through malicious breach of professional duty
- Revealing client’s secrets
- Representing adverse interests
- Introducing false evidence
- Misappropriating client’s funds (estafa)
- Contempt of Court
- Kinds of Contempt:
- Direct – consists of misbehavior in the presence of or so near a court or judge as to interrupt or obstruct the proceedings before the court or the administration of justice; punished summarily.
- Indirect – one committed away from the court involving disobedience of or resistance to a lawful writ, process, order, judgment or command of the court, or tending to belittle, degrade, obstruct, interrupt or embarrass the court.
- Civil- failure to do something ordered by the court which is for the benefit of a party.
- Criminal – any conduct directed against the authority or dignity of the court.
b. Acts Constituting Contempt:
- Publication concerning pending litigation
- Publication tending to degrade the court; disrespectful language in pleadings
- Misleading the court or obstructing justice
- Unauthorized practice of law
- Belligerent attitude
- Unlawful retention of client’s funds
Administrative Liabilities of lawyers
- Main Objectives of Disbarment and Suspension:
- to compel the attorney to deal fairly and honestly with his clients;
- to remove from the profession a person whose misconduct has proved him unfit to be entrusted with the duties and responsibilities belonging to the office of an attorney;
- to punish the lawyer;
- to set an example or a warning for the other members of the bar;
- to safeguard the administration of justice from incompetent and dishonest lawyers;
- to protect the public
- Characteristics of Disbarment Proceedings:
- Neither a civil nor criminal proceedings;
- Double jeopardy cannot be availed of in a disbarment proceeding;
- It can be initiated motu propioby the SC or IBP. It can be initiated without a complaint;
- It is imprescriptible;
- Conducted confidentially;
- It can proceed regardless of the interest of the lack thereof on the part of the complainant;
- It constitutes due process.
- Grounds for Disbarment or Suspension:
- malpractice or other gross misconduct in office;
- grossly immoral conduct;
- conviction of a crime involving moral turpitude;
- violation of oath of office;
- willful disobedience of any lawful order of a superior court;
- corrupt or willful appearance as attorney for a party to case without authority to do so(Sec. 27, Rule 138, RRC)
- Procedure for Disbarment
- Institution either by:
- the Supreme Court, motu proprio, or
- the IBP, motu proprio, or
- upon verified complaint by any person
- 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.
- Investigation by the National Grievance Investigators.
- Submission of investigative report to the IBP Board of Governors.
- Board of Governors decides within 30 days.
- Investigation by the Solicitor-General
- SC renders final decision for disbarment/suspension/dismissal.
Quantum of Proof Required: CLEAR, CONVINCING & SATISFACTORY evidence.
Burden of Proof: Rests on the COMPLAINANT, the one who instituted the suit
- Officers authorized to investigate Disbarment cases:
- Supreme Court
- IBP through its Commission on Bar Discipline or authorized investigator
- Office of the Solicitor General
- Mitigating Circumstances in Disbarment:
- Good faith in the acquisition of a property of the client subject of litigation (In re: Ruste, 70 Phil. 243)
- Inexperience of the lawyer (Munoz v. People, 53 SCRA 190)
- Age (Lantos v. Gan, 196 SCRA 16)
- Apology (Munoz v. People, 53 SCRA 190)
- Lack of Intention to slight or offend the Court (Rhum of the Philippines, Inc. v. Ferrer, 20 SCRA 441).
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Legal Ethics Chapter IV – The Lawyer and the Client
The Lawyer and the Client
CANON 14 – A Lawyer shall not refuse his services to the needy.
Rule 14.01 – A lawyer shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life, or because of his own opinion regarding the guilt of said person.
Rule 14.02 – A lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de oficio or as amicus curae or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid.
Rule 14.03 – A lawyer may refuse to accept representation of a client if:
- He is not in position to carry out the work effectively and competently.
- He labors under conflict of interest between him and the prospective client or between a present client and the prospective client.
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.
- Duties to Client:
- owe utmost learning and ability
- maintain inviolate the confidence of the client
- disclose all circumstances/interest regarding the controversy
- undivided loyalty
- not reject cause of defenseless and oppressed
- candor, fairness and loyalty
- hold in trust money or property
- respond with zeal to the cause of the client
- Appointment ofAmicus Curae
- by application to the judge
- the judge on his own initiative may invite the lawyer
- no right to interfere with or control the condition of the record, no control over the suit
- Cannot refuse on the ground of insufficient of compensation or lack of it
CANON 15 – A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his client.
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 15.02 – A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client.
Rule on Revealing Client’s Identity
- General Rule: A lawyer may not invoke privilege communication to refuse revealing a client’s identity. (Regala vs. Sandiganbayan, 262 SCRA 122, September 20, 1996)
- When by divulging such identity, it would implicate the client to that same controversy for which the lawyer’s services were required.
- It would open client to civil liability
- The disclosure of such identity will provide for the only link in order to convict the accused, otherwise, the government has no case.
- Requisites of Privileged Communication:
- -client relationship (or a kind of consultancy relationship with a prospective client
- Communication made by client to lawyer in the course of lawyer’s professional employment
- Communication is intended to be confidential (see Rule 130, Sec. 21(b), Rules of Court)
- When communication is not privileged:
- after pleading has been filed
- communication intended by the client to be sent to a third person through his counsel (it loses its confidential character as soon as it reaches the hands of third person)
- Even if the communication is unprivileged, the rule of ethics prohibits him from voluntarily revealing or using to his benefit or to that of a third person, to the disadvantage of the client, the said communication unless the client consents thereto.
- This is applicable to students under the Student Practice Law Program
Rule 15.03 – A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.
Rule on Conflicting Interest
It is generally the rule based on sound public policy that an attorney cannot represent adverse interest. It is highly improper to represent both sides of an issue. The proscription against representation of conflicting interest finds application where the conflicting interest arises with respect to the same general matter and is applicable however slight such adverse interest may be. It applies although the attorney’s intention and motives were honest and he acted in good faith. However, representation of conflicting interest may be allowed where the parties consent to the representation after full disclosure of facts. (Nakpil vs. Valdez, 286 SCRA 758).
- General Rule:An attorney cannot represent adverse interest.
- Exception:Where the parties consent to the representation after full disclosure of facts.
- The TEST in determining Conflicting Interest: The test is whether or not the acceptance of a new relation will prevent an attorney from the full discharge of his duty of individual fidelity and loyalty to his client or invite suspicion of unfaithfulness in double-dealing in the performance thereof.(Tiana vs. Ocampo)
Rule 15.04 – A lawyer may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in settling disputes.
Rule 15.05 – A lawyer, when advising his client, shall give a candid and honest opinion on the merits and probable results of the client’s case, neither overstating nor understating the prospects of the case.
Rule 15.06 – A lawyer shall not state nor imply that he is able to influence any public official, tribunal or legislative body.
Rule 15.07 – A lawyer shall impress upon his client compliance with the laws and the principles of fairness.
Rule 15.08 – A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity.
- Lawyers should refrain from giving any advice unless they have obtained sufficient understanding of their client’s cause. A careful investigation and examination of the facts must first be had before any legal opinion be given by the lawyer to the client.
- To avoid breach of legal ethics, a lawyer should keep any business, in which is engaged in concurrently with the practice of law, entirely separate and apart from the latter.
CANON 16 – A lawyer shall hold in trust all moneys and properties of his client that may come into his possession.
Rule 16.01 – A lawyer shall account for all money or property collected or received for or from the client.
Rule 16.02 – A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him.
Rule 16.03 – A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for the Rules of Court.
Attorneys’ Liens – an attorney shall have a lien upon the funds, documents and papers of his client which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such finds to the satisfaction thereof. He shall also have a lien to the same extent upon all judgements for the payment of money, and executions issued in pursuance of such judgements which he has secured in a litigation of his client, from and after the time when he shall have caused a statement of his claim of such lien to be entered upon the records of the court rendering such judgement, or issuing such execution, and shall have caused written notice thereof to be delivered to his client and to the adverse party; and he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his fees and disbursements. (Sec, 37, Rule 138, RRC)
Rule 16.04 – A lawyer shall not borrow money from his client unless the client’s interests are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance necessary expenses in the legal matter he is handling for the client.
- Attorney’s lien is not an excuse for non-rendition of accounting
- Cannot disburse client’s money to client’s creditors without authority.
- Failure to deliver upon demand gives rise to the presumption that he has misappropriated the funds for his own use to the prejudice of the client and in violation of the trust reposed in him.
- Notify client if retaining lien shall be implemented
- When a lawyer enforces a charging lien against his client, the client-lawyer relationship is terminated.
- The principle behind Rule 16.04 is to prevent the lawyer from taking advantage of his influence over the client or to avoid acquiring a financial interest in the outcome of the case.
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.
- No fear of judicial disfavor or public popularity should restrain him from full discharge of his duty.
- It is the duty of the lawyer at the time of retainer to disclose to the client all the circumstances of his relations to the parties and any interest in, or connection with, the controversy which might influence the client in the selection of counsel.
- The lawyer owes loyalty to his client even after the relation of attorney and client has terminated. It is not good practice to permit him afterwards to defend in another case other persons against his former client under the pretext that the case is distinct from and independent of the former case.
CANON 18 – A lawyer shall serve his client with competence and diligence.
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.
Rule 18.02 – A lawyer shall not handle any legal matter without adequate preparation.
Rule 18.03 – A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.
Rule 18.04 – A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client’s request for information.
- Competence: sufficiency of lawyer’s qualification to deal with the matter in question and includes knowledge and skill and the ability to use them effectively in the interest of the client.
- A lawyer must keep himself constantly abreast with the trend of authoritative pronouncements and developments in all branches of law.
- There must be extraordinary diligence in prosecution or defense of his client’s cause.
- If a lawyer errs like any other human being, he is not answerable for every error or mistake, and will be protected as long as he acts honestly and in good faith to the best of his skill and knowledge.
- Lawyer is not an insurer of the result in a case where he is engaged in the counsel.
CANON 19 – A lawyer shall represent his client with zeal within the bounds of the law.
Rule 19.01 – A lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding.
Rule 19.02 – A lawyer who has received information that his client has, in the course of the representation, perpetuated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he ha to terminate the relationship with such client in accordance with the Rules of Court.
Rule 19.03 – A lawyer shall not allow his client to dictate the procedure in handling the case.
- General Rule: Negligence binds client
Exception: Reckless imprudence (deprives client of due process)
Results in outright deprivation of one’s property through technicality
- Must not present in evidence any document known to be false; nor present a false witness.
- Negative pregnant is improper since it is an ambiguous pleading (improper if in bad faith and the purpose is to confuse the other party)
In defense: present every defense the law permits.
- Lawyer should do his best efforts to restrain and to prevent his clients from perpetrating acts which he himself ought not to do. Or else, withdraw. But lawyer shall not volunteer the information about the client’s commission of fraud to anyone – counter to duty to maintain client’s confidence and secrets.
CANON 20 – A lawyer shall charge only fair and reasonable fees.
Rule 20.01 – A lawyer shall be guided by the following factors in determining his fees:
- The time spent and the extent of the services rendered or required.
- The novelty and difficulty of the questions involved;
- The importance of the subject matter;
- The skill demanded;
- The probability of losing other employment as a result of acceptance of the proffered case;
- The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs;
- The amount involved in the controversy and the benefits resulting to the client from the services;
- The contingency or certainty of compensation;
- The character of the employment, whether occasional or established; and
- The professional standing of the lawyer.
- Kinds of Payment which may be stipulated upon:
- a fixed or absolute fee which is payable regardless of the result of the case
- a contingent fee that is conditioned to the securing of a favorable judgment and recovery of money or property and the amount of which may be on a percentage basis
- a fixed fee payable per appearance
- a fixed fee computed by the number of hours spent
- a fixed fee based on a piece of work
- Attorney’s Fees
- Ordinary attorney’s fee-the reasonable compensation paid to a lawyer by his client for the legal services he has rendered to the latter. The basis for this compensation is the fact of his employment by and his agreement with the client.
- Extraordinary attorney’s fee– an indemnity for damages ordered by the court to be paid by the losing party in litigation. The basis for this is any of the cases provided for by law where such award can be made, such as those authorized in Article 2208 of the Civil Code, and is payable NOT to the lawyer but to the client, unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof.
- How attorney’s fees may be claimed by the lawyer:
- It may be asserted either in the very action in which the services of a lawyer had been rendered or in a separate action.
- A petition for attorney’s fees may be filed before the judgment in favor of the client is satisfied or the proceeds thereof delivered to the client.
- The determination as to the propriety of the fees or as to the amount thereof will have to be held in abeyance until the main case from which the lawyer’s claim for attorney’s fees may arise has become final. Otherwise, the determination of the courts will be premature.
- Kinds of Retainer Agreements on Attorney’s fees:
- General Retaineror Retaining Fee – it is the fee paid to a lawyer to secure his future services as general counsel for any ordinary legal problem that may arise in the ordinary business of the client and referred to him for legal action;
- Special Retainer – that is a fee for a specific case or service rendered by the lawyer for a client
- Quantum Meruit -it means “as much as he deserves”, and is used as the basis for determining the lawyer’s professional fees in the absence of a contract, but recoverable by him from his client.
- Quantum Meruit is resorted to where:
- there is no express contract for payment of attorney’s fees agreed upon between the lawyer and the client;
- when although there is a formal contract for attorney’s fees, the stipulated fees are found unconscionable or unreasonable by the court.
- When the contract for attorney’s fees is void due to purely formal matters or defects of execution
- When the counsel, for justifiable cause, was not able to finish the case to its conclusion
- When lawyer and client disregard the contract for attorney’s fees.
- Skill: length of practice is not a safe criterion of professional ability.
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 the work performed and responsibility assumed.
Rule 20.03 – A lawyer shall not, without the full knowledge and consent of the client, accept any fee, reward, costs, commission, interest, rebate or forwarding allowance or other compensation whatsoever related to his professional employment from anyone other than the client.
Rule 20.04 – A lawyer shall avoid controversies with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice or fraud.
- Unauthorized counsel: Not entitled to attorney’s fees.
- Stipulation regarding payments of attorney’s fees is not illegal/immoral and is enforceable as the law between the parties provided such stipulation does not contravene law, good morals, etc.
- When counsel cannot recover full amount despite written contract for attorneys’ fees:
- When he withdraws before the case is finished
- justified dismissal of attorney (payment: in quantum meruitonly)
- The reason for the award of attorney’s fees must be stated in the text of the decision; otherwise, if it is stated only in the dispositive portion of the decision, the same must be disallowed on appeal.
- Even though the interest or property involved is of considerable value, if the legal services rendered do not call for much efforts there is no justification for the award of high fees.
- Champertous Contracts (void)– Lawyer stipulates with his client that in the prosecution of the case, he will bear all the expenses for the recovery of things or property being claimed by the client and the latter agrees to pay the former a portion of the thing/property recovered as compensation.
- Compensation to an attorney for merely recommending another lawyer is improper (agents)
- Attorney’s fees for legal services shared or divided to non-lawyer is prohibited. Division of fees is only for division of service or responsibility.
- A lawyer should try to settle amicably any differences on the subject. A lawyer has 2 options. Judicial action to recover attorney’s fees:
- In same case: Enforce attorney’s fees by filing an appropriate motion or petition as an incident to the main action where he rendered legal services.
- In a separate civil action.
CANON 21 – A lawyer shall preserve the confidences and secrets of his client even after the attorney-client relation is terminated.
- Confidence – refers to information protected by the attorney-client privilege (RRC)
- Secret –refers to other information gained in the professional relationship that the client has regulated to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client.
- 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 employees, concerning any fact the knowledge of which has been acquired in such capacity (Rule 130, Sec. 21 (b), RRC)
- The mere establishment of a client-lawyer relationship does not raise a presumption of confidentiality. There must be an intent or that the communication relayed by the client to the lawyer be treated as confidential.
Rule 21.01 – A lawyer shall not reveal the confidences or secrets of his client except:
- When authorized by the client after acquainting him of the consequences of the disclosure:
- When required by law;
- When necessary to collect his fees or to defend himself, his employees or associates or by judicial action.
- When properly authorized after having been fully informed of the consequences to reveal his confidences/secrets, then there is a valid waiver.
- 209. Betrayal of Trust by an Attorney or Solicitor. Revelation of secrets.In addition to the proper administrative action, the penalty of prision correccionalin its minimum period, or a fine ranging from P200 to P1000, or both, shall be imposed upon any attorney at law or solicitor who, by any malicious break of professional duty as inexcusable negligence or ignorance, shall prejudice his client, or reveal any of the secrets of the latter learned by him in his professional capacity.
The same penalty shall be imposed upon an attorney at law or solicitor who, having undertaken the defense of a client, or having received confidential information from said client in a case, shall undertake the defense of the opposing party in the same case, without the consent of his first client (Rule 209, RPC)
- General Rule: Obligation to keep secrets covers only lawful purposes
- announcements of intention of a client to commit a crime
- client jumped bail and lawyer knows his whereabouts; or client is living somewhere under an assumed name
- communication involves the commission of future fraud or crime but crimes/frauds “already committed” falls within the privilege.
Rule 21.02 – A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto.
Rule 21.03 – A lawyer shall not, without the written consent of his client, give information from his files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or any other similar purposes.
Rule 21.04 – A lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client.
Rule 21.05 – A lawyer shall adopt such measures as may be required to prevent those whose services are utilized by him, from disclosing or using confidences or secrets of the client.
Rule 21.06 – A lawyer shall avoid indiscreet conversation about a client’s affairs even with members of his family.
Rule 21.07 – A lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest.
- Avoid committing calculated indiscretion – accidental revelation of secrets obtained in his professional employment.
- Prohibition applies, even if the prospective client did not thereafter actually engage the lawyer.
CANON 22 – A lawyer shall withdraw his services only for good cause and upon notice appropriate in the circumstances.
Rule 22.01 – A lawyer may withdraw his services in any of the following cases:
- When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling;
- When the client insists that the lawyer pursue conduct violative of these canons and rules;
- When his inability to work with co-counsel will not promote the best interest of the client;
- When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively;
- When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement;
- When the lawyer is elected or appointed to a public office, and
- Other similar cases
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.
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.
Lawful possession of papers, documents, property belonging to client.
Securing of a favorable money judgment for the client.
Covers only 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 judgments.
4. When Lien takes effect
As soon as the attorney gets possession of the papers documents or property
As soon as the claim for attorney’s fees had been entered into the records of the case
Client need not be notified to make it effective
Client and adverse party must be notified to make it effective
May be exercised before judgment or execution or regardless thereof.
Generally, it is exercisable only when the attorney had already secured a favorable judgment for his client
- In withdrawal as counsel for a client, an attorney may only retire from a case either by written consent of his client or by permission of the court after due notice and hearing, in which event the attorney should see to it that the name of the new attorney is recorded in the case.
- An attorney who could not get the written consent of his client must make an application to the court, for the relation does not terminate formally until there is a withdrawal of record. Counsel has no right to presume that the court would grand his withdrawal and therefore must still appear on the date of hearing.
- Requirements for the Substitution of Counsel in a Case:
- written application
- written consent of client
- written consent of attorney to be substituted
- if the consent of the attorney to be substituted cannot be obtained, there must be at least a proof of notice that the motion for substitution has been served upon him, in the manner prescribed by the rules.
- A lawyer cannot recover compensation from one who did not employ or authorize his employment, however valuable the results of his services may have been to such person. In similar cases, no compensation when:
- client conducts himself in a manner which tends to degrade his attorney;
- client refuses to extend cooperation;
- client stops having contact with him.
- The right of a client to terminate a lawyer is absolute. Such termination may be with or without cause.
Legal Ethics Chapter III – The Lawyer and the Courts
The Lawyer and the Courts
CANON 10 – A Lawyer owes candor, fairness and good faith to the court.
Rule 10.01 – A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall he mislead or allow the court to be mislead by any artifice.
Rule 10.02 – A lawyer shall not knowingly misquote or misrepresent the contents of the paper, the language or the argument of opposing counsel, or the text of a decision of 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 approved.
Rule 10.03 – A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice.
- Judge-lawyer relationship: based on independence and self-respect.
- Lawyer’s duty to the court:
- respect and loyalty
- fairness, truth and candor
- no attempt to influence courts
- Cases of falsehood:
- stating in the Deed of Sale that property is free from all liens and encumbrances when not so
- encashing check payable to a deceased cousin by signing the latter’s name on the check
- falsifying a power of attorney and using it in collecting the money due to the principal
- alleging in one pleading that the clients were mere lessees and in another pleading that the same clients were owners
- presenting falsified documents in court which he knows to be false
- filing false charges on groundless suits
- using in pleadings the IBP number of another lawyer
- unsolicited appearances
- use of fictitious residence certificate
- citing a repealed or amended provision
- asserting a fact not proved
- verbatim reproductions down to the last word and punctuation mark
- slight typo mistake: not sufficient to place him in contempt
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.
Rule 11.01 – A lawyer shall appear in court properly attired.
- A lawyer may NOT wear outlandish or colorful clothing to court.
- As an officer of the court and in order to maintain the dignity and respectability of the legal profession, a lawyer who appears in court must be properly attired. Consequently, the court can hold a lawyer IN CONTEMPT of court if he does not appear in proper attire. Any deviation from the commonly accepted norm of dressing in court (barong or tie, not both) is enough to warrant a citing for contempt.
Rule 11.02 – A lawyer shall punctually appear at court hearings.
Rule 11.03 – A lawyer shall abstain from scandalous, offensive, or menacing language or behavior before the courts.
Rule 11.04 – A lawyer shall not attribute to a judge motives not supported by the record or having no materiality to the case.
Rule 11.05 – A lawyer shall submit grievances against a judge to the proper authorities already.
- A lawyer is an officer of the court. He occupies a quasi-judicial office with a tripartite obligation to the courts, to the public and to his clients.
- The public duties of the attorney take precedence over his private duties. His first duty is to the courts. Where duties to the courts conflict with his duties to his clients, the latter must yield to the former.
- Lawyers must be respectful not only in actions but also in the use of language whether in oral arguments or in pleadings.
- Must exert efforts that others (including clients, witnesses) shall deal with the courts and judicial officers with respect.
- Obedience to court orders and processes.
- Criticisms of courts must not spill the walls of decency. There is a wide difference between fair criticism and abuse and slander of courts and judges. Intemperate and unfair criticism is a gross violation of the duty to respect the courts. It amounts to misconduct which subjects the lawyer to disciplinary action.
- A mere disclaimer of any intentional disrespect by appellant is not a ground for exoneration. His intent must be determined by a fair interpretation of the languages employed by him. He cannot escape responsibility by claiming that his words did not mean what any reader must have understood them to mean.
- Lawyer can demand that the misbehavior of a judge be put on record.
- Lawyers must be courageous enough to expose arbitrariness and injustice of courts and judges.
- A lawyer may submit grievances against judges in the Supreme Court, Ombudsman, or Congress (for impeachment of SC judges only).
CANON 12 – A lawyer shall exert every effort and consider it his duty to assist in the speedy and efficient administration of justice.
Rule 12.01 – A lawyer shall not appear for trial unless he has adequately prepared himself with 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.
- Newly hired counsel: must acquaint himself with all the antecedent proceedings and processes that have transpired in the record prior to his takeover.
- If presenting documentary exhibits, he must be ready with the originals for the purpose of comparison with copies thereof.
Rule 12.02 – A lawyer shall not file multiple actions arising from the same cause.
- Forum shopping– omission to disclose pendency of appeal or prior dismissal of his case by a court of concurrent jurisdiction.
- Forum shopping exists when as a result of an adverse opinion in one forum:
- a party seeks favorable opinion (other than by appeal or certiorari) in another; or
- when he institutes two or more actions or proceedings grounded on the same cause, on the gamble that one or the other would make a favorable disposition (Benguet Electric Corp. vs. Flores, 287 SCRA 449, March 12, 1998).
- The most important factor in determining the existence of forum-shopping is the VEXATION caused the courts and party-litigants by a party who asks different courts to rule on the same related causes, asking the same relief.
- Forum shopping constitutes DIRECT CONTEMPT of court and may subject the offending lawyer to disciplinary action.
Rule 12.03 – A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so.
- Asking for extension of time must be in good faith.
Rule 12.04 – A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse court processes.
Rule 12.05 – A lawyer shall refrain from talking to his witness during a break or recess in the trial, while the witness is still under examination.
Rule 12.06 – A lawyer shall not knowingly assist a witness to misrepresent himself or to impersonate another.
Rule 12.07 – A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him.
Rights and obligations of a witness – a witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness:
- to be protected from irrelevant, improper, or insulting questions and from harsh or insulting demeanor;
- not to be detained longer than the interest of justice requires;
- not to be examined except only as to matters pertinent to the issue;
- not to give any answer which will tend to subject him to a penalty for an offense unless otherwise provided by law, or
- nor to give answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. (Rule 132, Sec. 3, RRC)
Rule 12.08 – A lawyer shall avoid testifying in behalf of his client, except:
- on formal matters, such as the mailing, authentication or custody of an instrument and the like:
- 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.
CANON 13 – A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court.
Rule 13.01 – A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for, cultivating familiarity with judges.
Rule 13.02 – A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party.
Rule 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.
- The judge has the corresponding duty not to convey or permit others to convey the impression that they are in a special position to influence the judge.
- Discussing cases with the judge privately should be avoided.
- Test when public statement is contemptuous: The character of the act done and its direct tendency to prevent and obstruct the discharge of official duty.
- To warrant a finding of “prejudicial publicity”, there must be an allegation and proof that the judges have been unduly influenced, not simply that they might be, by the “barrage” of publicity.
- Lawyer is equally guilty as the client if he induces the latter to cause the publicity.
Legal Ethics Chapter II – Lawyer and Society
The Lawyer and the Legal 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 false statements or suppressing a material fact, in connection with his application for admission to the bar.
Rule 7.02 – A lawyer shall not support application for admission to the bar by any person known to him or be unqualified in respect to character, education, or other relevant attribute.
Rule 7.03 – A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.
- Upright character; not mere absence of bad character.
- A lawyer must at all times conduct himself properly as not to put into question his fitness to practice law.
- Avoid scandalous conduct; not only required to refrain from adulterous relationships or the keeping of mistress but must also behave himself as to avoid scandalizing the public by creating the belief that he is flouting those moral standards.
CANON 8 – A lawyer shall conduct himself with courtesy, fairness and candor towards his professional colleagues, and shall avoid harassing tactics against opposing counsel.
Rule 8.01 – A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper.
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.
- It is the duty of a lawyer to inform the SC or the IBP of such malpractice to the end that the malpractitioner be properly disciplined.
- Not to use in pleadings and in practice the following: disrespectful, abusive and abrasive language, offensive personalities, unfounded accusations or intemperate words tending to obstruct, embarrass or influence the court in administering justice.
- Want of intention: not an excuse for the disrespectful language used. It merely extenuates liability.
CANON 9 – A lawyer shall not directly or indirectly assist in the unauthorized practice of law.
Rule 9.01 – A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the bar in good standing.
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:
- 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 the persons specified in the agreement; or
- Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; or
- Where a lawyer or law firm includes non-lawyer employees in a retirement plan, even if the plan is based in whole or in part of a profit sharing arrangements.
- Lawyer shall not negotiate with the opposite party who is represented by a counsel. Neither should lawyer attempt to interview the opposite party and question him as to the facts of the case even if the adverse party is willing to do so.
- Lawyer should deal only with counsel, even if there’s a fair agreement.
- Lawyer may however interview any witness or prospective witness for the opposing side. Limitation: avoid influencing witness in recital and conduct.
- A lawyer must not take as partner or associate one who:
- is not a lawyer
- is disbarred
- has been suspended from the practice of law
- foreign lawyer, unless licensed by the SC.
- A lawyer cannot delegate his authority without client’s consent even to a qualified person.
Legal Ethics Chapter I – Lawyer and Society
LEGAL ETHICS – is a branch of moral science, which treats of the duties which an attorney owes to the court, to the client, to his colleagues in the profession and to the public as embodied in the Constitution, Rules of Court, the Code of Professional Responsibility, Canons of Professional Ethics, jurisprudence, moral laws and special laws.
Original Bases of Legal Ethics:
- Canons of Professional Ethics
- Supreme court Decisions
- Treatises and publications
Present Basis of the Philippine Legal System: Code of Professional Responsibility.
BAR V. BENCH
BAR – Refers to the whole body of attorneys and body of judges.
BENCH – denotes the whole body of counselors, collectively the members of
the legal profession.
Practice of Law – any activity, in or out of court which requires the application of law, legal procedure, knowledge, training and experience. To engage in the practice of law is to give notice or render any kind of service, which or devise or service requires the use in any degree of legal knowledge or skill (Cayetano v. Monsod, 201 SCRA 210).
Attorney-at-law/Counsel-at-law/Attorney/Counsel/ Abogado/Boceros: that class of persons who are licensed officers of the courts, empowered to appear prosecute and defend and upon whom peculiar duties, responsibilities, and liabilities are developed by law as a consequence (Cui v. Cui, 120 Phil. 729).
Attorney in fact – an agent whose authority is strictly limited by the instrument appointing him, though he may do things not mentioned in his appointment necessary to the performance of the duties specifically required of him by the power of attorney appointing him, such authority being necessarily implied. He is not necessarily a lawyer.
Counsel de Oficio – a counsel, appointed or assigned by the court, from among members of the Bar in good standing who, by reason of their experience and ability, may adequately defend the accused.
Note: In localities where members of the Bar are not available, the court may appoint any person, resident of the province and good repute for probity and ability, to defend the accused. Sec. 7, Rule 116, Rules of Court.
Attorney ad hoc – a person named and appointed by the court to defend an absentee defendant in the suit in which the appointment is made (Bienvenu v. Factor’s of Traders Insurance Cp., 33 La.Ann.209)
Attorney of Record – one who has filed a notice of appearance and who hence is formally mentioned in court records as the official attorney of the party. Person whom the client has named as his agent upon whom service of papers may be made.
(Reynolds v. Reynolds, Cal.2d580).
Of Counsel – to distinguish them from attorneys of record, associate attorneys are referred to as “of counsel” (5 Am. Jur. 261).
Lead Counsel – The counsel on their side of a litigated action who is charged with the principal management and direction of a party’s case.
House Counsel – Lawyer who acts as attorney for business though carried as an employee of that business and not as an independent lawyer.
Bar Association – an association of members of the legal profession.
Advocate – The general and popular name for a lawyer who pleads on behalf of someone else.
Barrister (England) – a person entitled to practice law as an advocate or counsel in superior court.
Proctor (England) – Formerly, an attorney in the admiralty and ecclesiastical courts whose duties and business correspond to those of an attorney at law or solicitor in Chancery.
Titulo de Abogado – it means not mere possession of the academic degree of Bachelor of Laws but membership in the Bar after due admission thereto, qualifying one for the practice of law.
Admission to the Practice of Law
The Supreme Court has the power to control and regulate the practice of law. Thus, the Constitution, under Article VIII, Sec. 5 (5) provides:
Sec. 5. The Supreme Court shall have the following powers:
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the under privileged.
The Supreme Court acts through a Bar Examination Committee in the Exercise of his judicial function to admit candidates to the legal profession.
The Bar Examination Committee:
- Composed of (1) member of the Supreme Court who acts as Chairman and eight (8) members of the bar.
- The 8 members act as examiners for the 8 bar subjects with one subject assigned to each.
- The Bar Confidant acts as a sort of liason 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.
- Admission of examinees is always subject to the final approval of the court.
Practice of Law
The practice of law is a privilege granted only to those who possess the STRICT INTELLECTUAL AND MORAL QUALIFICATIONS required of lawyers who are instruments in the effective and efficient administration of justice. (In Re: Argosino, 1997).
Requirements for admission to the Bar:
- citizen of the Philippines
- at least 21 years old
- of good moral character
- Philippine resident
- Production before the supreme court satisfactory evidence of:
- good moral character
- no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines.
Requirement of Good Moral Character: a continuing requirement; good moral character is not only a condition precedent for admission to the legal profession, but it must also remain intact in order to maintain one’s good standing in that exclusive and honored fraternity. (Tapucar vs. Tapucar, 1998)
Academic Requirements for Candidates:
- a bachelor’s degree in arts and sciences (pre-law course)
- a completed course in:
- civil law
- commercial law
- remedial law
- public international law
- private international law
- political law
- labor and social legislation
- medial jurisprudence
- legal ethics
Non-lawyers who may be authorized to appear in court:
- Cases before the MTC: Party to the litigation, in person OR through an agent or friend or appointed by him for that purpose ( 34, Rule 138, RRC)
- Before any other court: Party to the litigation, in person ()
- Criminal case before the MTC in a locality where a duly licensed member of the Bar is not available: the judge may appoint a non-lawyer who is:
- resident of the province
- of good repute for probity and ability to aid the accused in his defense (Rule 116, Sec. 7, RRC).
- Legal Aid Program – A senior law student, who is enrolled in a recognized law school’s clinical education program approved by the supreme Court may appear before any court without compensation, to represent indigent clients, accepted by the Legal Clinic of the law school. The student shall be under the direct supervision and control of an IBP member duly accredited by the law school.
- Under the Labor code, non-lawyers may appear before the NLRC or any Labor Arbiter, if
- they represent themselves, or if
- they represent their organization or members thereof (Art 222, PO 442, as amended).
- Under the Cadastral Act, a non-lawyer can represent a claimant before the Cadastral Court(Act no. 2259, Sec. 9).
Public Officials who cannot engage in the private practice of Law in the Philippines:
- Judges and other officials as employees of the Supreme Court (Rule 148, Sec. 35, RRC).
- Officials and employees of the OSG (Ibid.)
- Government prosecutors (People v. Villanueva, 14 SCRA 109).
- President, Vice-President, members of the cabinet, their deputies and assistants (Art. VIII Sec. 15, 1987 Constitution).
- Members of the Constitutional Commission (Art IX-A, Sec. 2, 1987 Constitution)
- Ombudsman and his deputies (Art. IX, Sec. 8 (2ndpar), 1987 Constitution)
- All governors, city and municipal mayors (R.A. No. 7160, Sec. 90).
- Those prohibited by special law
Public Officials with Restrictions in the Practice of Law:
- No Senator as member of the House of Representative may personally appear as counsel before any court of justice as before the Electoral Tribunals, as quasi-judicial and other administration bodies (Art. VI, Sec. 14, 1987 Constitution).
- Under the Local Government Code (RA 7160, Sec. 91)Sanggunian members may practice their professions provided that if they are members of the Bar, they shall not:
- appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party;
- 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;
- collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official;
- use property and personnel of the government except when the Sanggunian member concerned is defending the interest of the government.
- Under RA 910, Sec. 1, as amended, a retired justice or judge receiving pension from the government, cannot act as counsel in any civil case in which the Government, or any of its subdivision or agencies is the adverse party or in a criminal case wherein an officer or employee of the Government is accused of an offense in relation to his office.
“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 willingly nor wittingly promote or sue any groundless, false or unlawful suit, or give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion, with all good fidelity as well to the court as to my clients; and I impose upon myself this voluntary obligations without any mental reservation or purpose of evasion. So help me God.” (Form 28, RRC)
Nature of Lawyer’s Oath
- The lawyer’s oath is not mere facile words, drift and hollow, but a sacred trust that must be upheld and kept inviolable. (Sebastian vs. Calis, 1999)
- It 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 made when taking the lawyer’s oath. (In Re: Argosino, 1997, In Re: Arthur M. Cuevas, 1998).
Code of Professional Responsibility
Lawyer and Society
CANON 1 – A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and for legal processes
- Duties of Attorneys:
- to maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines;
- to observe and maintain the respect due to the courts of justice and judicial officers;
- to counsel or maintain such actions or proceedings only as appear to him as just, and such defenses only as he believes to be honestly debatable under the laws;
- 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;
- 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;
- to abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged;
- not to encourage either the commencement or the continuance of an action or proceeding, or delay any man’s cause for any corrupt motive or interest;
- never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed;
- 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.
Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
- Conviction for crimes involving moral turpitude – a number of lawyers have been suspended or disbarred for conviction of crimes involving moral turpitude such as:
- falsification of public documents
- Morality as understood in law -This is a human standard based on natural moral law which is embodied in man’s conscience and which guides him to do good and avoid evil.
- Moral Turpitude:any thing that is done contrary to justice, honesty, modesty or good morals.
- Immoral Conduct:that conduct which is willful, flagrant, or shameless and which shows a moral indifference to the opinion of the good and respectable members of the community(Arciga vs. Maniwag, 106 SCRA 591).
- Grossly Immoral Conduct:One that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree; it is a WILLFUL, FLAGRANT or SHAMELESS ACT which shows a MORAL INDIFFERENCE to the opinion of respectable members of the community. (Narag vs. Narag, 1998)
Rule 1.02 – A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.
Rule 1.03 – A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man’s cause.
Rule 1.04 – A lawyer shall encourage his clients to avoid, end or settle the controversy if it will admit of a fair settlement.
- If a lawyer finds that his client’s cause is defenseless, it is his burden/duty to advise the latter to acquiesce and submit, rather than traverse the incontrovertible.
- It is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases where the blood, relationship or trust makes it his duty to do so.
- Temper client’s propensity to litigate.
- Should not be an instigator of controversy but a mediator for concord and conciliator for compromise.
- The law violated need not be a penal law. “Moral Turpitude” – everything which is done contrary to justice, honesty, modesty or good morals.
- Give advice tending to impress upon the client and his undertaking exact compliance with the strictest principles of moral law.
- Until a statute shall have been construed and interpreted by competent adjudication, he is free and is entitled to advise as to its validity and as to what he conscientiously believes to be its just meaning and extent.
- A lawyer has the obligation not to encourage suits. This is so as to prevent barratry and ambulance chasing.
- Barratry –offense of frequently exciting and stirring up quarrels and suits, either at law or otherwise; Lawyer’s act of fomenting suits among individuals and offering his legal services to one of them.
- Ambulance Chasing –Act of chasing victims of accidents for the purpose of talking to the said victims (or relatives) and offering his legal services for the filing of a case against the person(s) who caused the accident(s).
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 oppressed.
Rule 2.02 – In such a case, even if a lawyer does not accept a case, he shall not refuse to render legal advise to the person concerned if only to the extent necessary to safeguard latter’s rights.
Rule 2.03 – a lawyer shall not do or permit to be done any act designed primarily to solicit legal business.
- Primary characteristics which distinguish the legal profession from business;
- duty of service, of which the emolument is a by product, and in which one may attain the highest eminence without making such money;
- a relation as an ‘officer of court’ to the administration of justice involving thorough sincerity, integrity and reliability;
- a relation to clients in the highest degree of fiduciary;
- a relation to colleagues at the bar characterized by candor, fairness and unwillingness to resort to current business methods of advertising and encroachment on their practice or dealing with their clients.
- Defenseless– not in the position to defend themselves due to poverty, weakness, ignorance or other similar reasons.
- Oppressed –victims of acts of cruelty, unlawful exaction, domination or excessive use of authority.
Rule on Advertisements
- General Rule: No advertisements allowed. The most worthy and effective advertisement possible is the establishment of a well-merited reputation for professional capacity and fidelity to trust.
Lawyers may not advertise their services or expertise nor should not resort to indirect advertisements for professional employment, such as furnishing or inspiring newspaper comments, or procuring his photograph to be published in connection with causes in which the lawyer has been engaged or concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer’s position, and all other self-laudation.
- Exceptions/ Permissible advertisements:
- Reputable law lists, in a manner consistent with the standards of conduct imposed by the canons, of brief biographical and informative data, are allowed.
- Ordinary simple professional Card. It may contain only a statement of his name, the name of the law firm which he is connected with, address, telephone number and the special branch of law practiced.
- A simple announcement of the opening of a law firm or of changes in the partnership, associates, firm name or office address, being for the convenience of the profession, is not objectionable.
- Advertisements or simple announcement of the existence of a lawyer or his law firm posted anywhere it is proper such as his place of business or residence except courtrooms and government buildings.
- Advertisements or announcement in any legal publication, including books, journals, and legal magazines.
Rule 2.04 – A lawyer shall not charge rates lower than those customarily or prescribed, unless circumstances so warrant.
- A lawyer cannot delay the approval of a compromise agreement entered into between parties, just because his attorney’s fees were not provided for in the agreement.
- Rule: A lawyer cannot compromise the case without client’s consent (special authority). Exception: Lawyer has exclusive management of the procedural aspect of the litigation (e.g. Submission for decision on the evidence so far presented. But in case where lawyer is confronted with an emergency and prompt/urgent action is necessary to protect clients interest and there’s no opportunity for consultation, the lawyer may compromise.
- Rule: Refrain from charging rates lower than the customary rates.
Valid Justification: relatives, co-lawyers, too poor
CANON 3 – A lawyer in making known is 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-auditory or unfair statement or claim regarding his qualifications or legal services.
- Violation of Rule 3.01 is unethical, whether done by him personally or through another with his permission.
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 communication that said partner is deceased.
Rule 3.03 – Where a partner accepts public office, he shall withdraw from the firm and his name shall be dropped from the firm name unless the law allows him to practice law concurrently.
Rule 3.04 – A lawyer shall not pay or give anything of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business.
- It is unethical to use the name of a foreign firm.
- Death of a partner does not extinguish attorney-client relationship with the law firm.
- Negligence of a member in the law firm is negligence of the firm.
CANON 4 – A lawyer shall participate in the improvement of the legal system by initiating or supporting efforts in law reform and in the administration of justice.
- Examples: Presenting position papers or resolutions for the introduction of pertinent bills in congress; Petitions with the Supreme Court for the amendment of the Rules of Court.
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 students and assist in disseminating information regarding the law and jurisprudence.
Objectives of integration of the Bar
- To elevate the standards of the legal profession
- To improve the administration of justice
- To enable the Bar to discharge its responsibility more effectively.
The three-fold obligation of a lawyer
- First, he owes it to himself to continue improving his knowledge of the laws;
- Second, he owes it to his profession to take an active interest in the maintenance of high standards of legal education;
- Third, he owes it to the lay public to make the law a part of their social consciousness.
CANON 6 – These canons shall apply to lawyers in government service in the discharge of their official tasks.
- Public Officials– include elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service, including military and police personnel, whether or not they receive compensation, regardless of amount. (Sec. 3 (b), RA 6713).
- The law requires the observance of the following norms of conduct by every public official in the discharge and execution of their official duties:
- commitment to public interest
- justness and sincerity
- political neutrality
- responsiveness to the public
- nationalism and patriotism
- commitment to democracy
- simple living ( 4, RA 6713)
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 of disciplinary action.
Rule 6.02 – A lawyer in the government service shall not use his public position to promote or advance his private interest, nor allow the latter to interfere with his public duties.
Rule 6.03 – A lawyer shall not, after leaving government service, accept engagements or employment in connection with any matter in which he had intervened while in said service.
- Various ways a government lawyer leaves government service:
- expiration of the term of office
- Q: What are the pertinent statutory provisions regarding this Rule?
A: Sec. 3 (d) RA 3019 as amended and Sec. 7 (b), RA 6713
Sec 3. Corrupt practice of Public Officers. In addition to acts or omission of public officers already penalized by existing law, the following shall constitute corrupt practice of any public officer and are hereby declared to be unlawful:
(d) accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after termination.
Section 7 (b) of RA 6713 prohibits officials from doing any of the following acts:
- 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.
These prohibitions shall continue to apply for a period of one (1) year after resignation, retirement, or separation from public office, except in the case of subparagraph (b) (2) above, but the professional concerned cannot practice his profession in connection with any matter before the office he used to be with, in which case the one year prohibition shall likewise apply.
- Lawyers in the government service are prohibited to engage in the private practice of their profession unless authorized by the constitution or law, provided that such practice will not conflict or tend to conflict with their official functions.
- Misconduct in office as a public official may be a ground for disciplinary action (if of such character as to affect his qualification as lawyer or to show moral delinquency).
- Should recommend the acquittal of the accused whose conviction is on appeal, IF he finds no legal basis to sustain the conviction.
- Includes restriction is representing conflicting interest (e.g. Accepting engagements vs. former employer, PNB)
- The OSG is not authorized to represent a public official at any state of a criminal case.
Reference: Legal Ethics Reviewer