Book on Legal and Judicial Ethics-Cosico

  • Published on
    26-Oct-2014

  • View
    106

  • Download
    3

Transcript

LEGAL ETHICSIntroductionThe historical lineage of Rule 6.03 of the Code of Professional Responsibility is instructive. 1 Thus, the history, growth and development of legal ethics in England and other parts of Europe as well as in America are recorded as narrated hereunder. In England and other parts of Europe, ethical standards for lawyers were pervasive in the post-medieval era. The main concern of these standards was directed towards the litigation conduct of lawyers, underscoring the central duty of truth and fairness in litigation as superior to any obligation to the client. On the other hand, the forms of lawyer regulation in the early post-revolutionary America have no marked di!erence with those in England and other parts of Europe. Only three of the traditional core duties can be fairly characterized as pervasive in the formal, positive law of the post-revolutionary period: the duties of litigation fairness, competency and reasonable fees. Toward the end of the nineteenth century, a new form of ethical standards began to guide lawyers in their practice: the bar associations code of legal ethics. The bar codes were detailed ethical standards serving as guide for lawyers. In the Philippines, the Canons of Professional Ethics, based on the American version, was adopted in 1917 upon recommendation of the Philippine Bar Association. These Canons served as the ethical compass of lawyers in the Philippines for seven decades. On June 21, 1988, the Philippine Supreme Court promulgated the Code of Professional Responsibility which became the principal source of ethical rules for lawyers in this jurisdiction. Signicantly, the Code ofSee Andrews, Standards of Conduct for lawyers: An 800-year Revolution, 57 SMU l. Rev. 1385 (2004).11BOOK ON LEGAL AND JUDICIAL ETHICSProfessional Responsibility is not only a signicant contribution of the Supreme Court in the growth, development and improvement of legal education but also a signicant milestone towards the growth, development and improvement of legal ethics in the Philippines.DenitionLegal Ethics is dened as that branch of moral science which treats of the duties which a member of the legal profession owes to the public, to the court, to his professional brethren, and to his client.2Nature and scope of legal ethicsAs a member of the legal profession, the lawyer is burdened with duties and responsibilities. First and foremost, a lawyer is an o"cer of the court. He is part of the machinery for the administration of justice.3 As a vanguard of our legal system, the lawyer is expected to maintain not only legal prociency but also a high standard of morality, honesty, integrity and fair dealing. In so doing, the peoples faith and condence in the judicial and legal system is ensured.4 He must at all times faithfully perform his duties to society, to the bar, to the courts and to their clients. (Ibid.) Membership in the legal profession is a privilege and it demands a high degree of good moral character, not only as a condition precedent to admission, but also as a continuing requirement for the practice of law. (Ibid.) Hence, at all times a lawyer is bound by ethical principles in his public and private life.5 The rules which govern the ethical behavior of a lawyer are as follows: 1. 2.2The Philippine Constitution (Sec. 5, Art. VIII); The Rules of Court (Rules 137-139 A and B);Blacks Law Dictionary 894 (6th ed.). Fudot v. Cattleya Land, Inc. 570 SCRA 86 (2008). 4 Yu v. Palana, 558 SCRA 21 (2008). 5 Mangahas v. Court of Appeals, 566 SCRA 373 (2008).32LEGAL ETHICS3. 4. 5. 6. 7.The Civil Code; Special Statutes; The Code of Professional Responsibility; The New Code of Judicial Conduct; and Supreme Court decisions.Included in No.6 are the Canons of Judicial Ethics adopted in 1936 with the birth of the Philippine Republic and the 1989 Code of Judicial Conduct inspired by the American Bar Associations Code of Judicial Conduct. On the other hand, included in No. 7 are Supreme Court orders and circulars which must be followed by all members of the legal profession. The legal profession is a necessity in a democratic country like the Philippines. In our jurisdiction, the rights of individuals are determined in accordance with laws and established principles. For an orderly administration of justice, persons knowledgeable in substantive and procedural law must handle cases in court. Although an ordinary layman has the right to defend his case in a court of law or tribunal, he is not knowledgeable in law and procedure and may be taken advantaged of by his adversary who is a lawyer. Thus, courts ordinarily advise a litigant to engage the services of an experienced practicing lawyer.The Legal Profession is not a trade or businessTime and again, lawyers are reminded that the practice of law is a profession and not a business. Lawyers should not advertise their talents as merchants advertise their wares.6 In our jurisdiction, lawyers are prohibited from soliciting cases for the purpose of gain, either personally or through paid agents or brokers, an actuation which constitutes malpractice, a ground for disbarment. (Ibid.) Ambulance chasing is likewise abhorred in our jurisdiction. Ambulance chasing is the solicitation of almost any kind of legal6Linsangan v. Tolentino, 598 SCRA 133 (2009).3Book on Legal and Judicial EthicsJustice Rodrigo V. CosicoRetired Associate Justice, Court of Appeals Associate Dean, University of Perpetual Help Rizal Professorial Lecturer, Philippine Judicial Academy (PHILJA) Professor, San Beda College Alabang, Law SchoolPublished & Distributed by856 Nicanor Reyes, Sr. St. Tel. Nos. 736-05-67 735-13-64 1977 C.M. Recto Avenue Tel. Nos. 735-55-27 735-55-34 Manila, Philippines www.rexpublishing.com.ph iPhilippine Copyright 2011 byRODRIGO V. COSICO ISBN 978-971-23-6071-8No portion of this book may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devices or in any other form, for distribution or sale, without the written permission of the author except brief passages in books, articles, reviews, legal papers, and judicial or other ofcial proceedings with proper citation. Any copy of this book without the corresponding number and the signature of the author on this page either proceeds from an illegitimate source or is in possession of one who has no authority to dispose of the same. ALL RIGHTS RESERVED No. _______________ISBN 978-971-23-6071-805-VE-000069Printed by789712 360718Typography & Creative Lithography84 P. Florentino St., Quezon City Tel. No. 857-77-77iiRepublic of the PhilippinesSupreme CourtManilaFOREWORDThe new Book on Legal Ethics (Part I) and Judicial Ethics (Part II) authored by retired Associate Justice RODRIGO V. COSICO of the Court of Appeals is a welcome addition to the wealth of law books and legal reading materials published in the Philippines. This new book will serve the needs not only of the present crop of law students and bar reviewees but also legal practitioners and trial court judges. The history of Legal Ethics in the Philippines dates back to 1917 when the Canons of Professional Ethics, based on the American version, were adopted upon the recommendation of the Philippine Bar Association. These Canons served as the ethical compass of lawyers in the Philippines for seven decades. On June 21, 1988, the Philippine Supreme Court promulgated the Code of Professional Responsibility which became the principal source of ethical rules for lawyers in this jurisdiction. Signicantly, the Code of Professional Responsibility is not only a signicant milestone towards the growth, development and improvement of Legal Education but also a signicant milestone towards the growth, development and improvement of Legal Ethics in the country. On the other hand, the historical lineage of Judicial Ethics can be traced back to the birth of the Philippine Republic in 1946 when the Department of Justice, which iiihad jurisdiction then over all judges adopted the Canons of Judicial Ethics prepared by the Philippine Bar Association but still based on the American version. This was followed four decades later by the 1989 Code of Judicial Conduct. The New Code of Judicial Conduct which became effective on June 1, 2004 is now the prevailing Code of Judicial Conduct as it has superseded the Canons of Judicial Ethics and the 1989 Code of Judicial Conduct. The New Code was adopted by the Supreme Court in response to the clamor for a universal code of judicial conduct. The history of the New Code of Judicial Conduct dates back to November 22-26, 2002 when the Round Table Meeting of Chief Justice was held at the Peace Palace, the Hague, at which the Philippine Supreme Court was represented by former Chief Justice Hilario G. Davide, Jr. and then Senior Associate Justice Reynato C. Puno. After deliberation, the Bangalore Draft of the Code of Judicial Conduct was adopted and following renements in the Philippines, the New Code of Judicial Conduct was nally adopted by the Supreme Court en banc. Having been a professor of law teaching Legal Ethics and Legal Profession in San Beda College of Law, Alabang School of Law, since 2005, retired Justice Rodrigo V. Cosico is an authority on Legal Ethics. Likewise, having served the judiciary for 21 long years and being a lecturer of the Philippine Judicial Academy (PHILJA) on the Code of Judicial Conduct, the author is the best available authority we can commission to write on Judicial Ethics. June 1, 2011.RENATO C. CORONA Chief JusticeivREVELA OCULOS MEOS, ET CONSIDERABO MIRABILIA DE LEGE TUAOFFICE OF THE DEAN 1 July 2011FOREWORDThe study of legal ethics is the cornerstone of the legal profession. For the legal profession to be eective and humane, every lawyer and law student must be given ample opportunity to imbibe the core doctrines of Professional Responsibility, Canons of Judicial Ethics and Code of Judicial Conduct. That is the reason why the study of legal ethics is given paramount consideration in San Beda College-Alabang, School of Law. As a hallmark of Benedictine legal education, aside from Seminar subjects on Benedictine values and principles in the rst and second year in law school, a Bedan law student is also expected to tackle two legal ethics subjects (Legal Ethics and Problem Areas in Legal Ethics). This book by Justice Rodrigo Cosico, Jr. is a testament to his commitment to re-elevate legal ethics back to the core of legal education. Justice Cosico is an epitome of an ethical lawyer and public servant. As a public servant, he has served the government in the best years of his life with a track record that is impeccable and untarnished. Hence, the San Beda Alabang-School of Law is fortunate to have Justice Cosico in the roster of its faculty. His unceasing thirst for knowledge and his unquestionable integrity makes him the best person to teach legal ethics. This book is therefore a worthy read and a valuable resource material of the subject. That In All Things, God May Be Gloried!ULPIANO PLANES SARMIENTO III Dean San Beda College-Alabang, School of Law vviFOREWORDTHE BANGALORE Draft of the Code of Judicial Conduct, as amended, embodies the Universal Declaration of Judicial Standards applicable in all judiciaries, and as adopted in our jurisdiction, has updated and correlated our Code of Judicial Conduct and the Canons of Judicial Ethics, with adherence to global criterion. In the same vein, the Code of Professional Responsibility elucidates the punctilious duties and the indispensable participation of lawyers in the dispensation of justice in general. Worth nothing is the oath they have taken before the Supreme Being to bind themselves on such accountability. THE RELEASE on circulation of this wonderful piece of accomplishment from the highly respectable legal luminary, Justice Rodrigo V. Cosico, is a great contribution to the legal profession and the sublime administration of justice. By and large, the approach of presenting the subject on the Judicial and Legal Ethics in this work is comprehensive and deep. It extends to the lofty dimension of learning every segment of the Code through the authors careful and conscientious study and application of jurisprudence on the matter. I HIGHLY recommend this book to every Member of the Bench, Law Professors, Legal Practitioners, Bar Reviewers and students of law. I have no doubt that having a copy of this to read, will not only add a number on ones collection but certainly, will enhance a ne texture on his or her commitment to the genuine quest for truth and justice. Justice Minita V. Chico-Nazario Dean, College of Law University of Perpetual Help System Las Pias City viiviiiCONTENTSLEGAL ETHICS Introduction ............................................................................... Denition .................................................................................... Nature and scope of legal ethics ............................................... The Legal Profession is not a trade or business ....................... Who may practice law ................................................................ Requirements for admission to the bar .................................... Failing candidates to take review course .................................. Admission and oath of successful applicants ........................... The Lawyers Oath ..................................................................... The Legal Profession is aected with public interest............... Practice of Law ........................................................................... Practice of law regulated by the Supreme Court ..................... Loss and reacquisition of Filipino citizenship............................ Appearance of non-lawyers in court ......................................... A corporation cannot practice law ............................................ Public ocials who cannot practice law in the Philippines ...... Public ocials with restrictions in the practice of law ............. Restrictions in the practice of law on members of the legislature................................................................ Restrictions in the practice of law by Sanggunian members... Restrictions in the practice of law by retired justices and judges .......................................................................... Fourfold duties of lawyers ......................................................... Lawyers duties to the court ...................................................... Duties of a lawyer under the Rules of Court ............................. Counsel de ocio ........................................................................ Role of a private prosecutor ...................................................... Notary public .............................................................................. Qualications of a Notary Public ............................................... Jurisdiction and term ................................................................. Power and limitations of notaries public .................................. Exceptions .................................................................................. Notarial Certicates ................................................................... Revocation of Commission ........................................................ Punishable Acts .......................................................................... ix 1 2 2 3 5 6 6 7 7 7 7 8 8 9 10 10 11 11 12 13 14 14 17 18 18 18 18 19 19 19 21 21 22Lawyers duties to his client ...................................................... Requisites for the right to attorneys fees to accrue ............... Two concepts of attorneys fees ............................................... Duty to decline a case ................................................................ Fiduciary and condential relationship ..................................... Appearing for conicting interests ........................................... Preservation of clients condential information ..................... Termination of attorney-client relationship .............................. Attorneys fees ........................................................................... Quantum meruit ......................................................................... Attorneys lien ............................................................................ Liabilities of the lawyer .............................................................. Contempt of Court ..................................................................... Duties of the lawyer to his colleagues in the profession ......... Duty to opposing counsel .......................................................... Lawyers should not encroach upon the employment of another lawyer .............................................................. IBP membership ......................................................................... Term of oce and qualications to be elected or appointed to any position in the IBP .................................................. Lawyers duty to society ............................................................ Requirements of Completion of MCLE ..................................... Parties exempted from the MCLE ............................................. Other exempted parties ............................................................ Good cause for exemption from or modication of requirement................................................................... Proof of exemption .................................................................... Consequences of non-compliance ............................................ Restrictions against using public oce to promote private interest .................................................................. Restrictions against former ocial from accepting certain employment .......................................................... Duty to defend indigent litigants .............................................. Disciplinary power of the Supreme Court................................. Duties of attorneys .................................................................... Grounds for disciplinary action .................................................. Other statutory grounds ............................................................23 27 27 29 30 30 31 31 32 33 34 35 35 36 38 38 39 39 40 43 43 44 44 44 44 44 45 46 46 47 48 48xJUDICIAL ETHICS Introduction ............................................................................... History......................................................................................... Denition .................................................................................... Qualications of Justices and Judges ....................................... Municipal Trial Court Judges...................................................... Canon 1 Independence ............................................................ Canon 2 Integrity ..................................................................... Canon 3 Impartiality ................................................................ Canon 4 Propriety.................................................................... Canon 5 Equality ...................................................................... Canon 6 Competence and Diligence ...................................... Denitions .................................................................................. Epilogue ...................................................................................... Appendices Appendix A Code of Professional Responsibility ................... Appendix B Canons of Professional Ethics............................. Appendix C New Code of Judicial Conduct for the Philippine Judiciary ....................................... Appendix D Code of Judicial Ethics ........................................ Appendix E Code of Judicial Conduct..................................... Appendix F 2004 Rules on Notarial Practice .......................... Appendix G Mandatory Continuing Legal Education ............50 51 51 51 52 53 56 57 60 65 67 71 72 75 84 96 103 109 115 132xixii

Recommended

View more >