IMPORTANCE OF LEGAL ETHICS • The highest moral and ethical standards should be maintained so that the people will continue to repose their trust in lawyers and in the role they play in the administration of justice. • Consequently the continued existence of the legal profession is ensured PRIMARY CHARACTERISTICS WHICH DISTINGUISH THE LEGAL PROFESSION FROM BUSINESS: • Duty of public service, of which emolument is a by-product • Lawyer is an officer of the court • Fiduciary relation to client • Candor, fairness to colleagues in the bar Can Corporations practice law? • No. • Practice of law is reserved only to natural persons who are lawyers, either as solo practitioners or in partnership with other lawyers. SOURCES OF LEGAL ETHICS • CONSTITUTION • Section 5 (5), Article VIII, 1987 Constitution The Supreme court shall 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 underprivileged Section 14, Article VI, 1987 Constitution No Senator or Member of the House of Representatives may personally appear as counsel before: • any court of justice • electoral tribunals • quasi-judicial and other administrative bodies Puyat vs. De Guzman, Jr. ( 113 SCRA 31) “ A member of Congress cannot indirectly fail to follow the constitutional prohibition of not appearing personally as counsel before the SEC by buying a nominal share in the corporation after his appearance as counsel therein was contested.” Section 13, Article VII, 1987 Constitution The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not: • hold any other office or employment during their tenure, UNLESS OTHERWISE PROVIDED IN THIS CONSTITUTION.
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• directly or indirectly, practice any other profession, participate in any business. Section 2, Article IX-A, 1987 Constitution No member of the Constitutional Commissions shall during his tenure, hold any other office or employment neither shall he engage in the practice of any profession Section 8, Article XI, 1987 Constitution During their tenure, the Ombudsman and his deputies, shall be subject to the same disqualifications and prohibitions as provided for in Section 2, Article IX-A. RULES OF COURT Section 7, Rule 85 When the executor or administrator is an attorney, he shall not change against the estate any professional fees for legal services rendered by him Section 21 (B), Rule 130 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 (SLIDE NOT CLEAR) LEGISLATION Article 1491 , Civil Code The following cannot acquire by purchase, even at public or judicial action, either in person or through the mediation of another:  justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers or employees connected with the administration of justice the property rights in litigation or levied upon on execution before the court within whose jurisdiction or territory they exercise their respective functions; this prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the object of any litigation in which they take part by virtue of their profession
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MODERN CONCEPT OF PRACTICE OF LAW Cayetano vs. Monsod, 201 SCRA 210 (1991) “Practice of Law means 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 perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service required the use in any degree of legal knowledge or skill. It is not limited to appearing in court, or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of legal advice to clients.” OLD CONCEPT, PRACTICE OF LAW “People vs. Villanueva,14 SCRA 109 (1965)”
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Criteria Determinative or Practice of Law: • Habituality • Compensation • Application of Law, Legal Principle, Practice, or Procedure which calls for legal knowledge, training and experience • Attorney-Client Relationship SCRIVENING- filling blanks in standardized or stereotyped forms which involves purely clerical work without need for any legal interpretation. This is not practice of law, as it does not involve the determination by a trained mind of the legal effects of facts and conditions. Is teaching of law Practice of Law? • A law professor does not actually deal with clients whose rights are or may be subject to legal controversies; he does not hold himself out of the public as a lawyer, but as a mentor learned in the law who is qualified, by reason of his legal training to instruct students on legal subjects. (minister of justice opinion no. 89, s. 1986) Practice of Law a Privilege, but also in the nature of a right: • Privilege because lawyers must bow to the inherent regulatory power of the court to exact compliance with the lawyer’s public responsibilities • Right because a lawyer cannot be prevented from practicing law except for valid reason (e.g prohibitions on some public officers) Who can practice law? • • Admitted as member of the bar; Good and regular standing (sec. 1, Rule 138, Rules of Court)
Why the practice of law is generally limited to lawyers? • To protect party litigants because of the complex nature of judicial proceedings; • to protect public interest Sanctions for Unauthorized practice of Law: • Injunction to restrain continuation of unauthorized practice; contempt of court (Sec 3 [e], Rule 71, ROC), criminal prosecution , damage, denial of right to fees Manangan vs. CFI – one who masqueraded as a lawyer using the name of a deceased lawyer was found guilty of continuous fraudulent misrepresentation and highly improper conduct tending directly to impede, obstruct, degrade and make a mockery of the administration of justice. Consequently, he was adjudged in contempt of court, severely censured, and sentence to suffer 3 months imprisonment. Shari’a lawyers who are LLB graduates but not members of the bar are not allowed to practice before
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regular courts even if both parties are Muslims. Par. 2 Art. 143 of P.D. 1083, The Code of Muslim Personal Laws of the Philippines, provides for concurrent jurisdiction of the Shari’a District Court with existing civil courts. Appearance “Pro Hac Vice” Appearance by a lawyer who is not licensed to practice in a jurisdiction, but only in connection with a particular case; may be allowed by courts under very limited instances, if the appearance is only in an isolated case and no compensation is charged for the service. Appearance “In Propria Persona” or “Pro Se” Practice • Appearance in court by a non-lawyer for himself and without the assistance of a member of the Bar. Basis: Sec. 1 art. III, Constitution (due process clause); Sec. 1 (2), Art. III Constitution (due process – right to be heard by himself and counsel, especially in criminal cases); Sec. 3, Rule 7, ROC (every pleading must be signed by the party of counsel representing him…” While Pro Se Practice is allowed, it is not advisable. (In Re: Joaquin T. Borromeo, 241 SCRA405) “A little learning is a dangerous thing. He who acts as his own lawyer has a fool a client. Pro Se Practice does not apply to corporations. Otherwise, it would circumvent the prohibition on corporate practice of law. Thus, it must hire a lawyer to collect its bills, for instance. Non-lawyers who are authorized to appear in court: • GR: a non-lawyer may represent a party before the MTC Exc: criminal case Exc to Exc: in a locality where a duly licensed member of the bar is not available • Senior law student- enrolled in a recognized law school’s clinical education program approved by the SC may appear before any court, tribunal, agency, office, without compensation, to represent indigent clients accepted by the legal clinic in school; under direct supervision and control of an IBP member duly accredited by the law school; civil, criminal, administrative(sec. 1, Rule 138-A, Rules of Court) Before RTC and the higher courts- must be accompanied by a supervising lawyer in all his appearances Labor code- 1) when they represent themselves, 2) they represent their organization or member thereof with written authorization of the latter, 3)duly accredited members of legal aid office duly recognized by the DOJ, or the IBP in cases referred to by the latter Cadastral act- a non-lawyer can represent a claimant before the cadastral court Any person appointed to appear for the Government in accordance with law Before the Department of Agrarian Reform Adjudication Board
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Public Officials who cannot practice law: • Judges, other officials/employees of the superior court • OSG officials and employees • Government prosecutors • P, VP, Members of the Cabinet, their deputies and assistants • Members of the Constitutional Commissions • Ombudsman and his deputies • Governors, city and municipal mayors • Those prohibited by special law (RA 6713, Section 7, [b-2] Public Officials with Restriction in the Practice of Law: • No Senator or member of the House may personally appear as counsel before any court, electoral tribunal, quasi-judicial and other administrative bodies. • Section 90, R.A 7160- Sanggunian members shall not: Appear as counsel before any court in a civil case wherein a local government unit or any office, agency, or instrumentality of the govt is the adverse party Appear as counsel in a criminal case wherein an office or employee of the national or local govt is accused of an offense committed in relation to his office Collect any fee for their appearance in administrative proceedings involving the LGU of which he is an official Use property and personnel of the govt except when the Sangguniang member concerned is defending the interest of the govt • Sec. 1, R.A. 910- a retired justice or judge receiving pension from the govt, cannot act as counsel in any civil case in which the govt or any or any of its subdivisions or agencies is the adverse party or in a criminal case wherein an officer/employee of the govt is accused of an offense ic relation to his office
Terms • 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 device or service requires the use in any degree of legal knowledge or skill (Cayetano V. Monsod, 201 SCRA 201). Attorney, Counsel, Abogado, Boceros- that class of person who are licensed officers or the court,
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empowered to appear, prosecute and defend; and upon whom peculiar duties, responsibilities, and liabilities are developed by law as a consequent (Cui v. Cui, 120 Phil.729). • • • Bar- whole body of lawyers Bench- whole body of judges and justices Bar admission- act by which one is licensed to practice in courts of particular jurisdictions after satisfying certain requirements such as bar examination, period of residency, or admission on grounds of reciprocity Attorney in fact- an agent whose authority is strictly limited by the instrument appointing him, however, he may do things not mentioned on his appointment but are necessary to the performance of the duties specially required of 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, Rules 116 ROC • Attorney ad hoc- person named and appointed by the court to defend an absentee defendant of the suit in which the appointment is made (Bienvenu v. Factors 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, (Reynolds v. Reynolds) Of Counsel- to distinguish them from attorneys of record, associate attorneys are referred to as “of counsel” Another definition- venerable member of firm Lead Counsel- the counsel on their side of a litigated action who is charge 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. Amicus Curiea- friend of the court; a person with strong interests in or views on the subject matter of
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an action, may petition the court for permission to file a brief, ostensibly on behalf of the party but actually to suggest a rationale consistent with its own views; experienced and impartial attorney may be invited by the court to appear as amici criae to help in the disposition of cases submitted to it. • • • • Amicus curiae par excellence- bar association that appear in a case as amicus curiae 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. Solicitor (England)- person prosecuting or defending suits in Courts of Chancery (court which administer equity and proceeding according to the forms and principle of equity. Solicitor (Philippines)- government lawyer attached with the office of the solicitor general 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
CHAPTER 1: THE LAWYER & SOCIETY CANON 1: UPHOLD THE CONSTITUTION, OBEY THE LAWS AND PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES LAWYER’S OATH- contains in capsule form the ethical standards required for lawyers • not to undue delay a case- lawyer was reprimanded when he used his legal expertise to unnecessarily and unjustly delay a case (Del Mundo vs. CA, 252 SCRA 432) to delay no man for money or malice – a lawyer should not refuse or delay a case just because he may not be paid well or as expected by him because the legal profession is not a money-making trade. But this does not mean that a lawyer cannot reject a case the facts of which do not convinces him to be meritorious. If a lawyer is deliberately not paid, the honorable thing for him to do is to withdraw from the case so as to allow the client to employ another lawyer. Do no falsehood – guardian of truth
Bongalonta vs Castillo, 240 SCRA 310 Moreno vs Araneta, A.C. No. 1109, April 27, 2005 The lawyer’s highest honor is found in a deserved reputation for fidelity to private trust and public duty, as an honest man and as a patriotic and loyal citizen (Canon 32, last sentence, CPE)
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Discouraging Lawsuits • Under Rule 1.03 of CPR, a lawyer shall not for any corrupt motive or interest, encourage any suit or proceeding or delay any man’s cause Crime/Tort of Maintenance – Intermeddling of an uninterested party to encourage lawsuit A lawyer owes to the society and to the court the duty not to stir up litigation. The following are unprofessional acts: • Volunteering advice to bring lawsuit except when ties of blood, relationship and trust make it a duty to do so • Hunting up defects in titles to other causes of action; to breed litigation by seeking out claims for personal injuries • Employing agents or runners • Paying direct or indirect reward to those who bring or influence the bringing of cases to his office • Searching for unknown heirs and soliciting their employment Justifiable and Unjustifiable Litigation • The lawyer must decline a case when convinced that it is intended merely to harass, or to injure the opposite party or work oppression • But otherwise, it is his right, and having accepted engagement, it becomes his duty to insist upon the judgment of the court as to the legal merits of his client’s claim or defense, his appearance in court should be deemed equivalent to an assertion on his honor that in his opinion his client’s case is one proper for judicial determination. A lawyer has the following duties, inter alia: • To uphold the Constitution and obey the law • Not to engage in unlawful conduct • Not to counsel illegal activities • Not to encourage lawsuits • To encourage amicable settlement Ulep vs. Legal Clinic, Inc., 223 SCRA 318 Barratry – offense of frequently inciting and stirring up quarrels and suits; fomenting suits; then offering his legal services to one of the parties Ambulance Chasing – a lawyer’s act of figuratively chasing the victims of an accident for the purpose of talking to the victim or the latter’s relatives and offering his legal services for the filing of the case against the person who caused the accident Barratry vs Ambulance Chasing • • Barratry – refers to any action; Ambulance Chasing – refers only to personal injury actions Barratry – may refer to suits before any for a; Ambulance Chasing – refers to cases brought before the courts
Recognized evils of Ambulance Chasing: • Fomenting of litigation; burden on courts and society
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Subordination of perjury Mulcting of innocent persons by judgments, upon manufactured causes of action Defrauding of injured persons having proper causes of actions but ignorant of their legal rights and court procedures (by means of contracts which retain exorbitant percentages of recovery and illegal charges for court costs and expenses and by settlement made for quick returns of fees and against the just rights of the injured)
CANON 2 - A LAWYER SHALL MAKE HIS LEGAL SERVICES AVAILABLE IN AN EFFICIENT AND CONVENIENT MANNER COMPATIBLE WITH THE INDEPENDENCE, INTEGRITY AND EFFECTIVENESS OF THE PROFESSION. Rule 2.01 - A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed. Valid reasons to decline engagement: (Rule 14.03) – not in a position to carry out the work effectively or competently; he labors under a conflict of interest between him and the prospective client or between a present client and the prospective client) Must exercise the same degree or standard of diligence accorded to paying clients; legal aid is not a matter of charity but a public responsibility B.M. 2012, February 10, 2009, Proposed Rule on Mandatory Legal Aid Service for Practicing Lawyers All practicing lawyers are required to render a minimum of 60 hours of free legal aid services to indigent litigants in a year. Clerks of Court and the IBP Legal Aid Chairperson of the IBP Chapter are designated to coordinate with a lawyer for cases where he may render free legal aid service. Lawyers excluded in the term of “practicing lawyer” • Government employees and incumbent elective officials not allowed by law to practice • Lawyers who by law are not allowed to appear in court • Supervising lawyers of students enrolled in law student practice in duly accredited legal clinics of law schools and lawyers of non-governmental organizations (NGOs) and peoples organizations (POs) like the Free Legal Assistance Group who by the nature of their work render free legal aid to indigent and pauper litigants and • Lawyers not covered under subparagraphs (1) to (3) including those who are employed in the private sector but do not appear for and in behalf of parties in courts of law and quasi-judicial agencies Indigent and pauper litigants are those whose gross income and that of their immediate family does not exceed an amount double the monthly minimum wage of an employee and those who not own any real property. They are exempt from payment of docket fees and lawful fees as well as transcripts of stenographic notes. A penalty of P4,000 shall be imposed on the lawyer who fails to meet the required minimum number of hours of legal aid service each year required by the IBP without satisfactory explanation. The lawyer shall have a “not in good standing” status and shall not be allowed to appear in court or any quasi-judicial body as counsel for a period of 3 months. A lawyer who fails to comply with their duties in the Rule for at least 3 consecutive years shall be subject to disciplinary proceedings and may be suspended from the practice of law for 1 year.
Rule 2.02 - In such cases, even if the lawyer does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary to safeguard the latter's rights. (immediate legal
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advice) Rule 2.03 - A lawyer shall not do or permit to be done any act designed primarily to solicit legal business. (Solicitation – discussed with Canon 3) Rule 2.04 - A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant. • • Consider the IBP Chapter approved Schedules of Attorney’s fees To avoid demeaning and degrading competition
CANON 3 - A lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts. Advertising GR: a lawyer cannot advertise his talent, as he is a member of an honorable profession the primary purpose of which is to render public service and secure justice; remuneration is a mere accident. EXC: (Forms of Permissible Advertisement) • • • • • • • Writing legal articles; for legal publications in which he gives information upon the law but cannot accept employment from such publication to advise inquires in respect to individual rights of persons Laws lists, but only brief biological and informative data Ordinary professional cards Notice to other local lawyers and publishing in a legal journal of one’s availability Proffer of free legal services to the indigent, even when broadcasted over the radio or tendered through circulation of printed matter to the general public Simple announcement of the opening if a law firm or of changes in the partnership, firm name or office address, being for the convenience of the profession Listing in a phone directory, but not under a designation of a special branch of law
Solicitation of cases constitutes malpractice The law prohibits lawyers from soliciting cases for the purpose of gain, either personally ir through paid agents or brokers (Rule 138, Sec. 27, ROC) Use of Law Firm Name: • No false, misleading or assumed name shall be used. The continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased. This rule abandoned the doctrine in the case of In Re: Sycip, 93 SCRA 1 (1979). 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 concurrently Filipino lawyers cannot practice law under the name of a foreign law firm, as the latter cannot practice law in the Philippines and the use of foreign law firm name in the country is unethical.
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CANON 4 - A LAWYER SHALL PARTICIPATE IN THE DEVELOPMENT OF THE LEGAL SYSTEM BY INITIATING OR SUPPORTING EFFORTS IN LAW REFORM AND IN THE IMPROVEMENT OF THE ADMINISTRATION OF JUSTICE. Examples: • • Present position papers or resolutions for the introduction of pertinent bills in Congress Petition with the SC for the amendment of the ROC
CANON 5 - A LAWYER SHALL KEEP ABREAST OF LEGAL DEVELOPMENTS, PARTICIPATE IN CONTINUING LEGAL EDUCATION PROGRAMS, SUPPORT EFFORTS TO ACHIEVE HIGH STANDARDS IN LAW SCHOOLS AS WELL AS IN THE PRACTICAL TRAINING OF LAW STUDENTS AND ASSIST IN DISSEMINATING THE LAW AND JURISPRUDENCE. BAR Matter 850: Mandatory Continuing Legal Education, August 8, 2000 Purpose: To ensure that throughout their careers, they keep breast with law and jurisprudence, maintain the ethics of the profession and enhance practice of law. Requirements for Completion of ML: at least 36 hours of continuing legal education activities per 3 years: • • • • • • • 6 hours – legal ethics 4 hours – trial and pretrial skills 5 hours – alternative dispute resolution 9 hours – updates on substantive and procedural laws and jurisprudence 4 hours – writing and oral advocacy 2 hours – international law and international conventions 6 hours – other subjects as may be prescribed by the MCLE Committee
Persons exempted from MCLE: • • • President, Vice President and Undersecretaries of the Executive Department Senators and HR Members Chief Justice, Associate Justice of the Supreme Court; incumbent and retired justices of the Judiciary, incumbent members of the JBC and incumbent court lawyers covered by the Philippine Judicial Academy Program of continuing legal education Chief State Counsel, Chief State Prosecutor and Assistant Secretaries of the DOJ Solicitor General; Associate Solicitor General Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel Chair and members of the Constitutional Commissions Ombudsman, Overall Deputy Ombudsman, Deputy Ombudsman, Special Prosecutor
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Head of government agencies exercising quasi-judicial functions Incumbent Deans, bar reviewers and professors of law having teaching experience of at least 10 years in accredited law school Chancellor, Vice Chancellor, and members of the Corps of Professional Lecturers of the Philippine Judicial Academy Governors and Mayors Others: • • Those who are not in law practice, private or public Those who have retired from law practice with the approval of the IBP Board of Governors
Good Causes for Exemption form of Modification of Requirement: • • Verified request Grounds: • • • • Physical disability Illness Post-graduate study abroad Proven expertise in law
Consequences for Non-Compliance: • Listed as delinquent member by the IBP Board of Governors upon the recommendation of the Committee on MCLE
The listing as a delinquent member is administrative in nature but shall be made with notice and hearing by the Committee on MCLE BAR Matter No. 1922, June 3, 2008 "Bar Matter No. 1922. – Re: Recommendation of the Mandatory Continuing Legal Education (MCLE) Board to Indicate in All Pleadings Filed with the Courts the Counsel’s MCLE Certificate of Compliance or Certificate of Exemption. – The Court Resolved to NOTE the Letter, dated May 2, 2008, of Associate Justice Antonio Eduardo B. Nachura, Chairperson, Committee on Legal Education and Bar Matters, informing the Court of the diminishing interest of the members of the Bar in the MCLE requirement program. The Court further Resolved, upon the recommendation of the Committee on Legal Education and Bar Matters, to REQUIRE practicing members of the bar to INDICATE in all pleadings filed before the courts or quasi-judicial bodies, the number and date of issue of their MCLE Certificate of Compliance or Certificate of Exemption, as may be applicable, for the immediately preceding compliance period. Failure to disclose the required information would cause the dismissal of the case and the expunction of the pleadings from the records. The New Rule shall take effect sixty (60) days after its publication in a newspaper of general circulation." CANON 6 - THESE CANONS SHALL APPLY TO LAWYERS IN GOVERNMENT SERVICES IN THE DISCHARGE OF
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THEIR TASKS. • • A lawyer does not shed his professional; obligations upon his assuming public office Lawyers who are incumbent judges are governed by the Code of Judicial Conduct. They cannot be investigated by the IBP Commission on Bar Discipline.
R.A. 6713 – Code of Conduct and Ethical Standards for Public Officials and Employees • Public officials (including government lawyers) • • Elective, appointive, permanent, temporary, career, non-career (including military and police), whether or not they receive compensation, regardless of the amount
These norms should be observed in the discharge and execution of official duties: • • • • • • • • • • Commitment to public interest Professionalism Justness Sincerity Political neutrality Responsiveness to the public Nationalism Patriotism Commitment to democracy Simple living
Canon 6 -THESE CANONS SHALL APPLY TO LAWYERS IN GOVERNMENT SERVICES IN THE DISCHARGE OF THEIR TASKS. Government lawyers are prohibited to engage in private practice unless authorized by the Constitution or law provided that such practice will not conflict or tend to conflict. Rule 6.01 - The primary duty of a lawyer engaged in public prosecution is not to convict but to see that justice is done. The suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action. • • Primary duty is not to convict but to see that justice is done The suppression of facts or concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is caused for disciplinary action
A prosecutor is a quasi-judicial officer. Thus, he should be as much concerned with seeing that no innocent man suffers as in seeing that no guilty man escapes. If a prosecutor finds that there is no sufficient evidence:
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In the preliminary investigation: resolve to the effect that there is no probable cause If case has already been filed: file a motion before the court for the dismissal of the action If case on appeal: recommend before the appellate court the acquittal of the accused
Rule 6.02 - A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties. GR: a lawyer who holds a government office may not be disciplined as a member of the Bar for misconduct in the discharge of his duties as a government official Exc: misconduct is of such character as to affect his qualification as a lawyer to show moral delinquency, then he may be disciplined as a member of the bar Rule 6.03 - A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service. (otherwise, tantamount to the representation of conflicting interests). PCGG vs Sandiganbayan; GR No. 151805 (2005) • Matter: any discrete, isolatable act as well as identifiable transaction or conduct involving a particular situation and specific party, and not merely an act of drafting, enforcing or interpreting government agency procedures, regulations or laws, or briefing abstract principles of law Interventions as contemplated under Rule 6.03: • • An act of a person who has the power to influence the subject proceedings Such intervention cannot be insubstantial, insignificant or innocuous
RA 3019, Sec. 3(d) – corrupt practices of public officials: xxx 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 and within one year after its termination RA 6713, SEC. 7(b) Prohibitions: 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. (This prohibition shall continue 1 year after separation) The lawyer and the legal profession In a nutshell: uphold the integrity and dignity of the legal profession and support the IBP. Be courteous, fair and frank to fellow lawyers. Not to assist in the unauthorized practice of law. Not to encroach upon the employment of another lawyer. 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.
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Rule 7.01. A lawyer shall be answerable for knowingly making a false statement or suppressing a material fact in connection with his application for admission to the bar. Otherwise: • • • Denied permission to take the Bar Not allowed to take oath Stricken from the Roll of Attorneys
In Re: Ramon Galang (66 SCRA 282) – Under oath: “he has not been charged with any offense before a Fiscal, Municipal Judge, or other officers; or accused of, indicated for or convicted by ant court or tribunal of any crime involving moral turpitude; nor is there a pending case against him”. But he intentionally withheld his criminal case of slightly physical injuries which was still pending (he was allowed to take the Bar 7 times due to such concealment) and allowed to take his oath in 1972. LICENSE REVOKED. Diao vs MArtines (7 SCRA 477) – False pretenses in misrepresenting that he finished Associate in Arts Degree when he had not. STICKEN FROM THE ROLL. If what is concealed is a crime not involving moral turpitude – concealment is itself evidence of sufficient lack of moral character Rule 7.02. A lawyer shall not support the application for admission to the bar of any person known by him to be unqualified in respect to character, education, or other relevant attribute. • Violation makes a lawyer liable for disciplinary action; gross misconduct in office (Rule 138, Sec. 27, ROC)
Rule 7.03. A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession • Commission of unlawful act though not related to the discharge of professional duties which put his moral character in serious doubt, renders him unfit to continue practicing law.
Duty to uphold the honor of the profession: • • • Expose without fear or favor before the proper tribunals corrupt or dishonest conduct in the profession Accept without hesitation employment against a member of the Bar who has wronged his client Guard the bar against admission to the profession of persons of deficient moral characters.
The Integrated Bar • • Official state organization requiring membership and financial support of all attorneys as a condition precedent to the practice of law. National organization of lawyers (IBP) created January 16, 1973pursuant to Rule 139-A ROC.
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Integration of the Bar • • • Essentially a process by which every lawyer is afforded an opportunity to do his share in carrying out the objectives of the BAR as well as obliged to bear his portion of its responsibilities Dictated by overriding considerations of public interest which justifies the restrictions that integration imposes upon the personal interests and convenience of the individual lawyers. Mandated by the Constitution when it gave the SC powers to promulgate rules concerning, among others, the integration of the Bar.
Is bar integration constitutional? (In Re: Edillon) • • • • • Valid exercise of police power over an important profession Legal practice not a right but a privilege SC has plenary power in all cases regarding the admission to and supervision of the practice of law Not violative of the freedom of association. Integration does not make a lawyer a member of any group of which he is not already a member Only compulsion is the payment of annual dues; cost of improving the profession should be shared by the subjects and beneficiaries of the regulatory program, the lawyers.
Santos vs Llamas (A.C. No. 4749. January 20, 2000). The exemption granted by R.A. 7432 to senior citizens from paying individual income tax does not exempt lawyers who are likewise senior citizens from paying IBP dues and privileged tax. Integrated Bar Compulsory Sine qua non to the practice of law Violation of rules on integration is sufficient cause for disbarment or suspension Bar Associations voluntary no no Shall not operate at cross-purposes with the IBP (should not obstruct or defeat the purposes of the IBP 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. • • • Should be observed even in the pleadings that lawyers file. Forceful but dignified, emphatic but respectful Clients, not the lawyers, are the litigants
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Want of intention not an excuse for the disrespectful language used
Rule 8.02 –A lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer; however, it is the right of the lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel. • • • A lawyer should not steal clients A lawyer shall not negotiate with opposite party who is represented by counsel, without the latter’s knowledge or presence A lawyer may however interview any witness or prospective witness of the adverse party
CANON 9 A lawyer shall not, directly or indirectly, assist in the unauthorized practice of law. • Only those licensed by the SC may practice law in this jurisdiction.
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. • • Delegation to a non-lawyer, or to a disbarred lawyer, suspended a lawyer, alien lawyer… unethical Cannot even delegate to a qualified person without the client’s consent (personal relationhip)
Rule 9.02. A lawyer shall not divide or stipulate a fee for legal service with persons not licensed to practice law, except: a. where there is a pre-existing agreement with the partner or associate that, upon the latter’s death, money shall be paid over a reasonable period of time to his estate or to persons specified in the agreement; or b. where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; or c. where the lawyer or law firm includes non-lawyer employees in a retirement plan, even if the plan is based in whole as in part, on a profit-sharing arrangement. CHAPTER III. THE LAWYER AND THE COURTS CANON 10 - A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT. Rationale: burden on judiciary would be intolerable if it cannot take at face value what is asserted by counsel… Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of any in Court; nor shall he mislead, or allow the Court to be misled by any artifice. • • • • Cases of Falsehood: Raising issues long laid to rest by a final and executor judgment Making it appear that a person, long dead, executed a deed of sale in the lawyer’s favor Denying having received the notice to file brief which denial is belied by the return card Presenting falsified documents before the court
Art. 184, RPC (false Testimony) – knowingly offer in evidence a false witness or testimony in any judicial or official proceeding. Quotation of Decision • Must be verbatim • Provide the proper citation • Do not quote the syllabus
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Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved. Rule 10.03 - A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice. Litigation is not a game of technicalities Eternal Gardens Memorial Park vs. CA, G.R. No. 123698, Aug. 5, 1998 To thwart the execution of a judgment which has long been rendered final and executor, petitioner resorted to: First, opposing the Writs of Possession in favor of Sps. Seelin before the RTC by filing MFR, petition to CA, petition denied, MFR, petition to SC, petition denied, MFR, denied; Second: Petition for Certiorari before CA, denied, MFR, denied; Petition for Review before SC, denied, MFR, denied; Third, same as second. In the meanwhile that the case was protracted and execution delayed due to the unmeritorious petitions of petitioner, the case has dragged on for 17 years, wherein interment on the parcel of land has taken place rendering execution in favor Sps. Seelin impossible. “As officers of the court, lawyers have a responsibility to assist in the proper administration of justice. They do not discharge this duty by filing pointless petitions that only add to the workload of the judiciary, especially this court, which is burdened enough as it is. A judicious study of the facts and the law should advise them when a case such as this, should not be permitted to be filed to merely clutter the already congested judicial dockets. They do not advance the cause of law or their clients by commencing litigations that for sheer lack of merit do not deserve attention of the courts. • • • • Lawyer’s first duty is to the courts Not only to judges but also to judicial officers who take part in the judicial work Obedience to court orders and processes Criticism must be bona fide and must not spill over the walls of decency. (In Re: Almacen 31SCRA 581)
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. 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 have no
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materiality to the case. In Re Aguas 1 Phil 1: The instructed witness not to look at defendant’s lawyer but instead focus his attention on the former. When the witness did not give heed to the warning, judge arose from his seat and grabbed the witness by the shoulder… lawyer asked that the incident be placed on the record, was held in contempt. Sc ruled that act of insisting that the matter be placed on record is not contemptuous. Lawyers must however be courageous enough to espose arbitrariness and injustices of judges. Wicker vs. Arcangel, G.R. No. 112869, Jan. 29, 1996 In Re Almacen, GR No. L-27654, Feb. 18, 1970 Rule 11.05 - A lawyer shall submit grievances against a Judge to the proper authorities only. Proper Authorities: • • • Supreme Court Office of the Ombudsman- Maceda vs Ombudsman (GR No. 102781, Apr. 22, 1993) HR & Senate- for SC Justices (impeachable officers)
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 on the law and the facts of his case, the evidence he will adduce and the order of its preference. He should also be ready with the original documents for comparison with the copies. Rule 12.02 - A lawyer shall not file multiple actions arising from the same cause. Forum-Shopping - as a result or in anticipation of adverse opinion in one forum, a party seeks favorable opinion in other forum (a) on the gamble that one will render a favorable disposition Elements of forum-shopping – same parties, same causes of action, same issues, same reliefs (relate to res judicata and litis pendentia) What are the evils of forum-shopping? • • • • • • Duplication or multiplications of suits Double or multiple vexation of lawsuits arising from only one cause Clogging or court dockets Waste of time, energy and resources; Reprehensible manipulation of court processes and proceedings May result in tribunals rendering conflicting rulings
How do the courts seek to prevent forum-shopping & what are the effects of non-compliance?
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Sec 5, Rule 7, ROC: CERTIFICATION OF NON-FORUM SHOPPING in initiatory pleadings signed by the party, not the lawyer. Otherwise: • • • • Failure to comply not curable by amendment Dismissal without prejudice, unless otherwise provided, upon motion and after hearing Submission of a “false certification/noncompliance with any of the undertaking therein-indirect contempt of court, administrative and criminal sanctions Willful and deliberate forum-shopping- summary dismissal with prejudice, direct contempt, administrative 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. 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. • • To prevent lawyer from teaching or coaching witness to testify in his favor or to rectify some mistakes or statements damaging to his cause In the last analysis, to uphold the truth
Rule 12.06 - A lawyer shall not knowingly assist a witness to misrepresent himself or to impersonate another. • • Lawyer should do no falsehood nor consent to the doing of any in court Criminal Liability: • • Witness- false testimony (Arts. 181, 182 or 183, RPC depending upon the nature of the case) Lawyer- offering false testimony in evidence (Art. 184, RPC); and criminal and administrative liability
Rule 12.07 - A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him. What are the rights of the witness under the ROC: Sec. 3, Rule 132, ROC • • • • • To be protected from irrelevant, improper or insulting questions, and from harsh and insulting demeanor Not to be detained longer than the interests of justice requires Not to be examined except only as to matters pertinent to the issue Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law Not to give an answer which will tend to degrade his reputation, unless it be 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.
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Rule 12.08 - A lawyer shall avoid testifying in behalf of his client, except: (a) on formal matters, such as the mailing, authentication or custody of an instrument, and the like; or (b) on substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel. 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. Reason? To protect the good name and reputation of both lawyer and judge; to avoid misconstructions of motive; so as not to seriously affect the confidence of the litigants and the public in general on the courts and justice system 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. Evil sought to be avoided by the rule? Trial by publicity; fair trial in the courts may be hampered or interfered with However if the ______________________________ of the case justify a statement to the public? When is trial by publicity prejudicial? There must be allegation and proof that the judges have been unduly influenced, not simple that they might be, by the barrage of publicity (Martelino vs. Alejandro, as reiterated in PP vs. Mayor Sanchez, GR NO. 121039-45, October 18, 2001 and Estrada vs Desierto, GR Nos. 146710-15, March 2, 2001) 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. CHAPTER IV. 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. Is this rule applicable to civil cases? -No. In civil cases, it is the lawyer’s duty to counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses that he believes are honestly debatable under the law. The lawyer’s signature in a pleading is deemed a certification by him that he has read the pleading, that to the best of his knowledge, information and belief, there is good ground to support it. But he can decline if there is a valid and justifiable ground. • Can a lawyer refuse to represent an accused believing he is guilty?
-No. the sole reason is his belief only, trial has not yet began but he has already convicted a person. Everybody deserve proper defense and due process. He should defend the accused by all fair and reasonableness.
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• • •
Grounds to dismiss a case – transcription, the complaint was not filed at a proper authority, double jeopardy. You know the accused is already guilty yet NO judgement – fight for the acquittal. Not applicable in civil cases
Rule 14.02 - A lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de officio or as amicus curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid. Can an accused refuse a counsel de oficio? Yes, if he has counsel de parte. If the accused manifests that he wants to hire counsel de parte, court should give him sufficient time to do so. However, the accused cannot, without valid grounds, refuse a counsel de oficio. Can the judge assign a lawyer to render free legal aid to destitute or indigents in civil cases? Yes, under Section 31, Rule 138 where the services of counsel are needed to attain the ends of justice. Rule (not clear) accept representation of an indigent client unless: • He is not in a position to carry out the work effectively or competently; • He labors under a conflict of interest between him and the prospective client or between a present client and the prospective client. Concept of Conflicting Interests • When the lawyer would argue a claim on one hand and would have to argue the defense against such claim on the other hand.
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. 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. Mejia vs. Reyes Atty. Reyes was the counsel and notary public of PNB. In such capacity, he handled litigation involving PNB and a certain Mejia. Mejia lost and wanted to appeal. At Reyes’ advise, Mejia did not push through with his intended appeal. Later on, Mejia learned that Reyes was the PNB’s counsel. Act constitutes malpractice. In case of conflict of interests of a lawyer and his client – favor the client. (e.g. do not prioritize attorney’s fees over and above clients’ shares in the judgment award) Rule 15.03 – A lawyer shall not represent conflicting interests except by written consent of all concerned given
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after a full disclosure of the facts. Representing conflicting interests is a criminal offense. Betrayal of Trust by an Attorney (Art. 209, RPC) Treachery and double-dealing is condemned. Where the lawyer did not accept the case but represented the adverse party after consultation by the other…
Hilado vs. David It is not essential that the client should have employed or paid the lawyer professionally; mere consultation suffices to establish a lawyer-client relationship. Lawyer should not represent conflicting interests. Duty (not to represent conflicting interests) applies even AFTER attorney-client relationship is terminated. Nakpil vs. Valdez Atty. Valdez is managing partner of his own law firm and own accounting firm. In a case, Atty. Valdez represented the estate of the late Jose Nakpil. Two claimants against the estate are clients of his accounting firm. Suspended for representing conflicting interests. When is representing conflicting interests authorized? Upon written consent of the client concerned given after full disclosure of the facts. Rule 15.03 – A lawyer shall be bound by the rule on privileged communication in respect of matters disclosed to him by a prospective client. • This is another instance of loyalty to the client. • Virtual confessional seal of the client’s secrets and confidences. • Form of communication: oral, written, actions, signs… Section (not clear) ROC – An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity.
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• • •
Are pleadings confidential? Yes, before they are (not clear) in court. Unprivileged communication: lawyer can be compelled to testify, or else he may be cited in contempt of court. Basic limitations of privileged communication: a.) purpose of seeking legal advice; b.) does not extend to communication of future crimes, a person committing or about to commit a crime can have no privileged witness; communication must be for a lawful purpose or in furtherance of a lawful end. For otherwise, if the purpose is criminal, it is not only lawful to divulge, but the lawyer should be bound to disclose at once in the interest of justice. The privilege applies to law students under the Law Student Practice rule
Two-Fold Purposes of the Rule: • To encourage client to make full disclosure without fear; • To enable counsel to obtain full information so as not to misled in the evaluation of the merits or demerits of the client’s case. Rule 15.05 – A lawyer hen advising his client, shall give a candid and honest opinion on the merits and probable results of the client’s case, neither overstating or understating the prospects of (not clear). (Not clear) an instance of candor.
Rule 15.06 – A lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body. On matters of law, it is the lawyer who should hold the reins. The client should yield to the lawyer and not the other way around. “Lawyering” or “being a mere mouthpiece of the client” untenable arguments (Wicker vs. Arcangel) Lawyers should advise clients on matters of decorum and proper attitude towards courts of justice e.g. curbing the client’s desire (not clear) the litigation or to (not clear) to the streets and rally 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. • Examples of other capacities: real estate (not clear) agent, insurance adjuster, collection
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. • • Relationship of lawyer-client is highly fiduciary and demands utmost fidelity and good faith. (Not clear) to client’s cause is the essence of the (not clear). Without this fidelity, the lawyer (not clear) because no client will engage his (not clear).
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Rosacia vs. Bulalacao
CANON 16 – A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS POSSESSION. TWO (2) DUAL ROLES OF THE LAWYER TO HIS CLIENT: • Fiduciary or Trustee • Utmost good faith and fidelity is required. • Strict compliance with Canons 14-22. • Agent • Appear in court in behalf of the client. • Bind the client in all matters of ordinary judicial procedure. • More than an ordinary agent (Regata vs. Sandiganbayan, G.R. No. 105938, 1996). • Lawyer is foremost an officer of the court.
LAWYER’S BREACH OF CLIENT’S TRUST Illustrative Cases: • Misappropriation by lawyer of rentals (Licuanan vs. Melo, 170 SCRA 100) • Securing money from client for fictitious supersedeas bond, and appropriating the same (Docena vs. Limon, AC No. 2387, Sept. 10, 1998) • Misappropriating money given by client to be used for amicable settlement (Navarro vs. Meneses III, ACT No. 313, Jan. 30, 1998) 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. Unlawful Rentention of Clients’ Funds: • • • Violation of Canon 16. Constitutes contempt of court: Officer of the court who has misbehaved in his official transactions. Criminal and civil prosecution.
Rule 16.04 – A lawyer shall not borrow money from his client unless the client’s interests are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client, except, when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client. Business transactions with clients: • • • Lawyer is not barred from dealing with his client but the business transaction must be characterized with utmost honesty and good faith. (Nakpil vs. Valdez, AC No. 2040, March 4, 1998). Much higher standard of good faith is required compared to business transactions that are at arm’s length. No presumption of innocence or improbability of wrongdoing is considered in the lawyer’s favor.
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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 lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court.
TWO (2) KINDS OF ATTORNEY’S LIENS:
RETAINING, GENERAL, POSSESSORY LIEN – right of lawyer to lawfully withhold his client’s property (funds or documents) that lawfully come into his possession, until payment of his attorney’s fees. CHARGING, SPECIAL, PARTICULAR, NON-POSSESSORY LIEN – right of the attorney to request the court to annotate his claim for attorney’s fees in whatever recoveries made by the client from the losing adversary.
Why the recognition of the Atoorney’s Lien? • • It is but natural that the lawyer be secured in the fruits of his professional labor. Proper administration of justice cannot be secured without an intelligent and prosperous bar. (Stansell vs. Roach, 29 ALR 143)
Basis of Retaining Lien (Sec. 37, Rule 138, ROC) An attorney shall have a lien: • Upon the FUNDS, DOCUMENTS and PAPERS of his client. • Which have LAWFULLY COME INTO HIS POSSESSION. • And may retain the same until his LAWFUL FEES AND DISBURSEMENTS have been paid. • And may apply such funds to the SATISFACTION thereof. Limitations on exercise of retaining lien: • • • • Funds, documents, and papers only Thing retained should have lawfully come into the possession of the lawyer under circumstances consistent with the enforcement of a lien for services. Thus, retaining lien does not apply to funds coming into the lawyer’s possession in trust A lawyer cannot retain files the client needs to pursue his case (People vs. Altvater, 78 Misc. 2d 24) For lawful feels and disbursements only
Is retaining lien the same as retaining fee? RETAINING (OR RETAINER) FEE – A preliminary fee paid to ensure and secure a lwayer’s future services, to remunerate him for being deprived of employment by other persons who may have adverse interests to that of
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the client retaining the lawyer’s services. In the absence of an agreement to the contrary, the retaining fee is neither made nor received in consideration of the services contemplated. Rather, it is apart from what the client agreed to pay for the contemplated services. (Research & Services Realty, Inc. vs. CA, 266 SCRA 731)
Basis of Charging Lien (Sec.37, Rule 138, ROC) A lawyer shall have a lien: • • • • Upon all judgments for the payment of money, and executions issued in pursuance thereof, Which he has secured in a litigation for 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 judgemnt, or issuing such execution, and Shall have caused written notice thereof to be (not clear) to his client and to the adverse party.
(Slide incomplete) Limitations on exercise of charging lien: • • Applies only to the specific action in which the charging lien is recorded. Applies only to favorable money judgments, and executions pursuant thereto. RETAINING LIEN NATURE BASIS COVERAGE EFFECTIVITY NOTICE APPLICABILTY Pasive General Lawful possessions of papers, documents, and funds belonging to client Only documents, papers and funds in the lawful possession of the lawyer by reason of his professional employment As soon as lawyer takes possession Client need not be notified May be exercised before judgment or execution, or regardless thereof CHARGING LIEN Active Specific Securing favorable money judgement for the client Covers all judgments for the payment of money and esecutions pursuant thereto As soon as claim for the lien entered into the records of the case Client and adverse party must be notified Exercised only when lawyer had already secured a favorable money judgment
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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. Effects of Negligence and Incompetence of Lawyer: • • • • Disciplinary action against the lawyer Malpractice suit for damages A criminal conviction may be set aside A retrial may be had in civil cases
Effects of Negligence and Incompetence of Counsel IN CRIMINAL CASES • • Criminal conviction may be set aside if the errors of the defense counsel were so shocking that they deprived the accused of the constitutional right to effective counsel. (McMann vs, Richardson, 397 US 759) Conviction may be set aside but accused must show that his counsel’s acts aor omissions “were outside the range of professionally competent assistance.” Furthermore, the acts or omissions must have caused actual prejudice, not just some conceivable effect on the outcome of the case. Strjckland vs. Washington (466 US 668)
Effects of Negligence and Incompetence of Counsel in CIVIL CASES • • Retrial may be conducted Courts are slow in setting aside judments in civil cases
Diligence required of counsel: ORDINARY CARE and DILIGENCE A lawyer is not an insurer of the result of a case. IS THE CLIENT BOUND BY THE NEGLIGENCE OF HIS COUNSEL? General Rule: YES! Any at of the lawyer within the scope of his general or implied authority is considered an act of the client. Exception: When the application of the general rule would result to serious injustice or outright deprivation of the client’s life, liberty, or property without due process of law. Rule 18.04 – A lawyer shall keep the client informed f the status of his case and shall respond within a reasonable time to the client’s request for information. It is also the duty of a client-litigant to be in contact with his counsel from time to time in order to be informed
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of the progress of his case. No prudent party will leave the fate of his case entirely to his lawyer. (Bernardo vs. CA, 275 SCRA 413) Litigants should give necessary assistance to their counsel for what us at stake is their interest in the case. (Grrenhills Airconditioning vs. NLRC, 245 SCRA 384)
CANON 19 – A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF THE LAW A lawyer’s duty is not to his client but to the administration of justice; to that end, his client’s success is wholly subordinate; and his conduct ought to and must (not clear) scrupulously observant (not clear) ethics. (Maglasang vs. (not clear) 190 SCRA 306) 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 inpresenting or threatening (not clear) unfounded criminal (not clear) to obtain an improperly (not clear) in any case or (not clear) Defense of a person accused of a crime It is the duty of the attorney, in the defense of a person accused of a crime by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present (not clear) the law permits. To the (not clear) may be deprived of life (not clear) by due process of law (not clear) (138, ROC) Rule 19.02 – A lawyer who has received information that his client (not clear) the coarse of the representation, perpetuated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the (not clear) failing which he (not clear) the relationship (not clear) client in accordance (not clear) Rules of Court Rule 19.03 – A lawyer shall not allow his client to dictate the procedure in handling the case He (the lawyer) should follow his own decision and not that of his client. Thus, a lawyer may agree to postpone the trial of the case, despite the client’s contrary wishes, if the opposite (not clear) or under bereavementl, or under (not clear) causes. CANON 20 – A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE FEES. Attorney’s Fees, Defined The remuneration given to a (not clear) reasonable compensation (not clear) professional services. Rationale of Attorney’s Fees Although the legal profession not a business undertaking, the lawyer like all other human beings (not clear) to a livelihood. (not clear) (29 ALR 143) Ordinary Concept of Attorney’s Fees:
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Reasonable compensaton paid (not clear) a lawyer by his client for the legal services he has rendered to the latter. (not clear) employment or (not clear) of the lawyer by the (not clear)
Extraordinary Concept of Attorney’s Fees: Indemnity for damages ordered by the court to be paid by the losing party in litigation GR: Payable to the client (not clear) between the lawyer (not clear) the attorney’s fees shall (not clear) laywer as additional (not clear) or as part thereof. ARTICLE 2208, NEW CIVIL CODE: In the absence of stipulation, attorney and expenses of litigation, other than judicial costs, cannot be recovered. • • • • • • • • • • • When exemplary damages are awarded; When the (not clear) the plaintiff to (not clear) with third persons or to their expenses to protect his interest; In criminal cases of malicious prosecution against the plaintiff; In case of a clearlt unfounded civil action or proceeding against the (not clear) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff’s plainly valid, just and demandable claim; In actions for legal support; In actions for the recovery of wages of household helpers, laborers and skilled workers; (not clear) under workmen;s compensation and (not clear) (not clear) to recover civil liabilty arising from a crime; (not clear) judicial costs are awarded; (not clear) where the court deems it just and equitable that (not clear) of litigation should be recovered.
Presumption as to Entitlement of Attorney’s Fees: GR: If a lawyer renders valuable services to one who receives the benefits thereof, a promise to pay a reasonable value is presumed (not clear) How agreement re: attorney’s fees made: • Oral
Written Contract for Attorney’s Fees: To avoid controversy over attorney’s fees ais advisable to agree in advance as to the matter of how the lawyer is to be compensated. Furthermore, in case of unjustified (not clear) he shall be entitled to (not clear) full compensation based on (not clear). The law seeks to protect (not clear) unscrupulous and ungrateful (not clear) lawyers to avoid payment. Bases for Attorney’s Fees if Contract is Implied:
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Concept of Unjust Enrichment – (not clear) one shall unjustly enrich himself at (not clear) another.
Interpretation of Contracts for Attorney’s Fees In case of ambiguity of contract between attorney and client concerning compensation, a (not clear) favorable to the client (not clear) preferred. (De Los Santos (not clear), 8 SCRA 764)
Attorney’s Fees are subject to judicial review Reason: A lawyer is primarily an officer of the court charged with the duty of assisting the court in administering (not clear) justice between the parties (not clear) his attorney’s fees should (not clear) judicial control. Kinds of Retainer Fee Agreements 120592, March 14, 1997): (Slide Incomplete) General Retainer Fee paid to a lawyer to secure his future (not clear) as general (not clear) for any ordinary lehal problem (not clear) may arise in the routinary business of the client and referred to him for legal action. The future services the lawyer are secured and committed to the (not clear) client. For this, the client pays the lawyer a fixed retainer fee which could be monthly or otherwise, (not clear) their agreement. The fees are (not clear) there are cases referred to the law (not clear) remuneration is that the lawyer (not clear) opportunity of rendering services (not clear) party or other parties. In fine, (not clear) for lost opportunities. Special Retainer Fee for a specific case handled or special service rendered by the lawyer for a client. A client may have several cases demanding special or individual (not clear) for every case there is a (not clear) independent contract for (not clear), each fee is considered (not clear) retainer. Kinds of Attorney’s Fees Arrangements: • • • • • Fixed or Absolute Fee Contingent Fee Fixed Fee Payable Per Appearance (not clear) Hourly Rate / Time Billing (not clear) based on Piece Work
Contigent Fee Contract • A contract whereby a lawyer gets paid for services only if he wins the case for the client
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A.K.A “No Cure, No Pay Basis” Agreement laid down in an express contract between a lawyer and a client in which the (not clear) professional fee, usually a fixed (not clear) what may be recovered in the (not clear) to depend upon the success (not clear) (Taganas vs. NLRC, 348 SCRA (not clear) )
Rationale of Contingent Fee Contract Such contract is often the (not clear) way by which the poor and helpless (not clear) their rights vindicated (not clear) Amount of the Contingent Fee A contract for a contigent fee, where sanctioned by law, should be reasonable under all circumstances including the risk and uncertainty of (not clear), and should always (not clear) to the supervision of the (not clear) its reasonableness. (not clear) (CPE) An attorney engaged on a contigent fee (not clear) may not, in order to collect his fees, (not clear) an appeal despit his client’s refusal to (not clear) (Leviste vs. CA, G.R. No. 29184, Jan. 30, 1989) • Contigent fee contract does not make (not clear) lawyer a creditor of the client. It neither (not clear) to givem to the lawyer any right (not clear) personal or real, in and to the (not clear) winnings in the suit. If the (not clear) does not occur, then the lawyer (not clear) to his fees.
Champertous Contract, Defined: One whereby the lawyer agrees to presecute suits at his own expense the recovery of things or property belonging to or claimed by the client the latter agreeing to pay the former (not clear) the thing or property (not clear) as compensation. CHAMPERTOUS CONTRACT Lawyer undertakes to bear all expenses incident to the litigation Payable in cash or in kind (not clear) CONTIGENT CONTRACT NA Payable in cash or in kind Valid
Other factors may be considered such as: • • • • Client’s ability to pay Reasonable requests of fellow lawyers, and of their (not clear) and orphans without ample means Responsibilty imposed Results secured
(not clear) lawyers should avoid charges that (not clear) underestimate their legal advice and (not clear) Why should there be a criteria for reasonable (not clear) of fees?
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Excessive fees would discourage prospect clients from seeking legal reprensentation. Inadequate legal fees might serve as a (not clear) for the lawyer to exert his (not clear) representing the client; it might (not clear) dedicated and talented (not clear) pursuing a career in law. When attorney’s fees based on Quantum Meruit are Awarded: • • • • • When the fees stipulated appear excessive, unconscionable, unreasonable Where there is no express contract Where the contract of employment is void (not clear) irregularity in its execution (not clear) matters (not clear) agreement to pay attorney’s fees (not clear) not been agreed upon
Attorney’s fees where client withdraws (Sec. 26, Rule 138): The lawyer shall recover the FULL AMOUNT of compensation stipulated (not clear) the contract if the following condition (not clear) (not clear) has been reduced to writing (not clear) attorney is without (not clear) Attorney’s fees where counsel withdraws • • Cause is justified – Quantum Meruit Cause is not justified – attorney’s fee (not clear) or even forfeited
Law may limit the collection of Attorney’s fees • The state as parens patriae may protect the interest of the (not clear)
Examples of law limitations on Attorney’s Fees: • • R.A. No. 145 (U.S. Veterans Claims) – A lawyer is limited to attorney’s fees of not more than Php 20.00 “It shall be unlawful for any person to (not clear), in any judicial or (not clear) proceedings for the recovery (not clear) attorney’s fees which exceed (not clear) amount of wages recoevered (not clear) (Labor Code)
Rule (not clear) – A lawyer shall, cases of referral, with the consent of the client, be entitled to a division of fees (not clear) to the work (not clear) and the (not clear assumed. Requisites for Fee-Splitting: • • • Referral cases With client’s consent (not clear) to the work performed (not clear) responsibilty assumed
Rule 20.03 – A lawyer shall (not clear) without the full knowledge and consent of the client, accept (not clear) fee, reward, costs, commissions, interests, rebate or forwarding allowance or other (not clear) whatsoever (not clear) his professional (not clear) from anyone other (not clear) client.
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Rule 20.04 – A lawyer shall avoid controversies with client concerning his compensation and shall resort to judicial action (not clear) imposition, injustice (not clear) Assumpsit The action filed by a lawyer (not clear) client for collection (not clear) fees. CANON 21: A LAWYER SHALL PRESERVE THE CONFIDENCES AND SECRETS OF HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT RELATIONSHIP IS TERMINATED Consequences of Violating Client’s Confidence: Criminal liability: Betrayal of trust by an attorney or solicitor, Revelation of Secrets (Art. 209, RPC) • Penalty: PC min, or a fine ranging from Php 200 to 1,000 or both (not clear) addition to proper administrative (not clear)