Legal Ethics Reviewer San Beda

San Beda College of Law 1

MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES

LEGAL ETHICS AND PRACTICAL EXERCISES COMMITTEE &CHAIRPERSON: Jackie Lou Bautista &ASSISTANT CHAIRPERSON: Catherine Jane Vanilla &SUBJECT HEADS: Ma. Ricasion Tugadi (Legal Ethics), Mary Wendy Duran(Practical Exercises) &EDP: Raphy Espiritu &MEMBERS: John Dale Balinan, Malou Barrios, Catherine Bool-Nuez, Melanie Caparas, Kristian Cristobal, Remegio Dayandayan, Jr., Gerald dela Cruz, Donna Dumpit, JB Roselle Gayona, Rhea Mangubat, Joyce Marie Marquez, Rowena Mutia, Maan Salada, Melamy Salvadora, Vin-Kristine Ventura

I. LEGAL ETHICS

PRELIMINARY MATTERS Legal Ethics branch of moral science which treats of the duties which an attorney owes to the court, to his client, to his colleagues in the profession and to the public. - It is the embodiment of all principles of morality and refinement that should govern the conduct of every member of the bar. PRIMARY CHARACTERISTICS WHICH DISTINGUISH THE LEGAL PROFESSION FROM BUSINESS 1. A duty of public service 2. A relation, as an officer of the court, to the administration of justice involving thorough sincerity, integrity and reliability 3. A relation to clients with the highest degree of fiduciary 4. A relation to the colleagues at the bar characterized by candor, fairness and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients.

PRACTICE OF LAW ? CASE: Any activity in or out of court which requires the application of law, legal principle, practice or procedure and calls for legal knowledge, training and experience. (Cayetano vs Monsod, 201 SCRA 210) Strictly speaking, the word practice of law implies the customary or habitual holding of oneself to the public as a lawyer and demanding compensation for his services. [People vs. Villanueva 14 SCRA 111]

ESSENTIAL CRITERIA DETERMINATIVE OF ENGAGING IN THE PRACTICE OF LAW: (HACA)

1. Habituality- implies customarily or habitually holding oneself out to the public as a lawyer 2. Compensation- implies that one must have presented himself to be in the active practice and that his professional services are available to the public for compensation, as a source of his livelihood or in consideration of his said services. 3. Application of law, legal principle, practice, or

procedure which calls for legal knowledge, training and experience 4. Attorney client relationship

PRIVATE PRACTICE Private practice is more than an isolated appearance for it consists of frequent or customary actions, a succession of acts of the same kind. ? NOTE: An isolated appearance does not amount to practice of law of a public officer if allowed by his superior in exceptional cases. NOTE: The practice of law is not a natural, property or constitutional right but a mere privilege. It is not a right granted to any one who demands it but a privilege to be extended or withheld in the exercise of sound judicial discretion. It is in the nature of a franchise conferred only for

merit which must be earned by hard study, learning and good conduct. It is a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness. Those standards are neither dispensed with nor lowered after admission. The attorneys continued enjoyment of the privilege conferred depends upon his complying with the ethics and rules of 333the profession. But practice of law is in the nature of a right. While the practice of law is a privilege, a lawyer cannot be prevented from practicing law except for valid reasons, the practice of law not being a matter of states grace or favor. He holds office during good behavior and can only be deprived of it for misconduct ascertained and declared by judgment of the Supreme Court after opportunity to be heard has been afforded him. The state cannot exclude an attorney from the practice of law in a manner or for reasons that contravene the due process or equal protection clause of the Constitution.

POWER TO REGULATE THE PRACTICE OF LAW ? CASES: The Constitution [Art. VIII, Sec. 5(5)] vests this power of control and regulation in the Supreme Court. The constitutional power to admit candidates to the legal profession is a judicial function and involves the exercise of discretion. Petition to that end is filed with the Supreme Court as are other proceedings invoking judicial function [In re: Almacen 31 SCRA 562] The SC acts through a Bar Examination Committee in the exercise of its judicial function to admit candidates to the legal profession. Thus, the Committee is composed of a member of the Court who acts as Chairman and 8 members of the bar who acts as examiners in the 8 bar subjects with one subject assigned to each. [In re Lanuevo, 66 SCRA 245] The power of the SC to regulate the practice of law includes the authority to: 1. Define the term 2. Prescribe the qualifications of a candidate to and the subjects of the bar examinations 3. Decide who will be admitted to practice 4. Discipline, suspend or disbar any unfit and unworthy member of the bar 5. Reinstate any disbarred or indefinitely suspended attorney 6. Ordain the integration of the Philippine Bar 7. Punish for contempt any person for unauthorized practice of law 8. Exercise overall supervision of the legal profession 9. Exercise any other power as may be necessary to elevate the standards of the bar and preserve its integrity. On the other hand, the LEGISLATURE, in the exercise of its POLICE POWER may, however, enact laws regulating the practice of law to protect the public and promote the public welfare. But the legislature MAY NOT pass a law that will control the SC in the performance of its function to decide who may enjoy the privilege of practicing law and any law of that kind is unconstitutional as an invalid exercise of legislative power.

WHO MAY PRACTICE LAW? Any person heretofore duly admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions of this rule, and who is in

2 2005 CENTRALIZED BAR OPERATIONS

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics). Jonathan

Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

good and regular standing, is entitled to practice law. [Sec. 1, Rule 138] REQUIREMENTS BEFORE A CANDIDATE CAN ENGAGE IN THE PRACTICE OF LAW I. He must have been admitted to the Bar a. Furnishing satisfactory proof of educational, moral and other qualification; b. Passing the bar c. Taking the Lawyers Oath before the SC A lawyers oath signifies that the lawyer in taking such an oath accepts and affirms his ethical obligations in the performance of his duties as a lawyer and signifies likewise his awareness of his responsibilities that he assumes by his admission to the legal profession. d. Signing the Attorneys Roll and receiving from the Clerk of Court of the SC a Certificate of the license to practice II. After his admission to the bar, a lawyer must remain in good and regular standing, which is a continuing requirement for the practice of law. He must: a. Remain a member of the IBP (membership therein by every attorney is made compulsory); b. Regularly pay all IBP membership dues and other lawful assessments, as well as the annual privilege tax; c. Faithfully observe the rules and ethics of the legal profession; and d. Be continually subject to judicial disciplinary control. BASIC REQUIREMENTS FOR ADMISSION TO THE BAR Under Section 2, 5 and 6, Rule 138, the applicant must be: 1. Citizen of the Philippines; 2. At least 21 years of age; 3. Of good moral character;

(Note: This is a continuing requirement.) 4. Resident of the Philippines; 5. Must produce before the SC satisfactory evidence of good moral character; 6. No charges against him, involving moral turpitude, have been filed or are pending in any court in the Phil. [Sec. 2, Rule 138]; 7. Must have complied with the academic requirements; 8. Pass the bar examinations. Moral Turpitude imports an act of baseness, vileness or depravity in the duties which one person owes to another or to society in general which is contrary to the usually accepted and customary rule of right and duty which a person should follow. ACADEMIC REQUIREMENTS FOR THE CANDIDATES 1. Must have already earned a Bachelors Degree in Arts or Sciences (Pre-law) 2. Law Course completed courses in Civil Law, Commercial Law, Remedial Law, Criminal Law, Public and International Law, Political Law, Labor and Social Legislation, Medical Jurisprudence, Taxation, Legal Ethics. [Sec. 5 and 6, Rule 138]

APPEARANCE OF NON-LAWYER IN COURT MAY A NON-LAWYER APPEAR IN COURT? General Rule: Only those who are licensed to practice law can appear and handle cases in court.

Exceptions: 1. Before the MTC - a party may conduct his case or litigation in person with the aid of an agent or friend appointed by him. [Sec. 34, Rule 138] 2. Before any court a party may conduct his litigation personally. But he gets someone to aid him and that someone must be an authorized member of the Bar

[Sec. 34, Rule 138]. He is bound by the same rules in conducting the trial of his case. He cannot, after judgment, claim that he was not properly represented. 3. In a criminal case before the MTC in a locality where a duly licensed member of the Bar is not available, the judge may appoint a non-lawyer who is a resident of that province, of good repute for probity and ability to the accused in his defense. [Sec. 7, Rule 116] 4. Student Practice Rule - A law student who has successfully completed his 3rd year of the regular 4-year prescribed law curriculum and is enrolled in a recognized law schools clinical legal education program approved by the SC may appear without compensation in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to represent indigent clients accepted by the Legal Clinic of the school. [Sec. 1, Rule 138-A] The student shall be under the direct supervision and control of a member of the IBP duly accredited by the law school. [Sec. 2] 5. Under the Labor Code non-lawyers may appear before the NLRC or any Labor Arbiter if they (a) represent themselves; (b) represent their organization or members thereof [Art. 222, PD 442] 6. A non-lawyer may represent a claimant before the Cadastral Court [Sec. 9, Act. No. 2259] 7. Any person appointed to appear for the government of the Philippines in accordance with law [Sec. 33, Rule 138]

LIMITATIONS ON APPEARANCE OF NON-LAWYERS BEFORE THE COURTS 1. He should confine his work to non-adversary contentions. He should not undertake purely legal work, such as the examination or cross-examination of witnesses, or the presentation of evidence. 2. Services should not be habitually rendered. 3. Should not charge or collect attorneys fees.

[PAFLU vs. Binalbagan Isabela Sugar Co. 42 SCRA 302]

RIGHT OF PARTY TO REPRESENT HIMSELF Civil Cases: An individual litigant has the right to conduct his litigation personally. Criminal Cases: Involving grave and less grave offenses, an accused who is a layman must always appear by counsel; he CANNOT conduct his own defense, as his right to counsel may NOT be waived without violating his right to due process of law. By a Juridical Person: A juridical person must always appear in court by a duly licensed member of the bar, except in the municipal trial court where it may be represented by its agent or officer who need not be a lawyer. PARTNERSHIP WITH NON-LAWYERS VOID In the formation of partnership for the practice of law, no person should be admitted or held out as a practitioner or member who is not a member of the legal profession duly authorized to practice, and amenable to professional discipline.




PRACTICE BY CORPORATION It is well settled that a corporation CANNOT engage in the practice of law. It may, however, hire an attorney to attend to and conduct its own legal business or affairs. But it cannot practice law directly or indirectly by employing a lawyer to practice for it or to appear for others for its benefit. Reasons: 1. Nature of the privilege and on the confidential and trust relation between attorney and client. 2. A corporation cannot perform the conditions required for membership in the bar, such as the possession of good moral character and other special disqualifications, the taking of an oath and becoming an officer of the court, subject to its discipline, suspension or removal. 3. The relation of trust and confidence cannot arise where the attorney is employed by a corporation to practice for it, his employer and he owing, at best, a secondary and divided loyalty to the clientele of his corporate employer. 4. The intervention of the corporation is destructive of that confidential and trust relation and is obnoxious to the law. PERSONS AUTHORIZED TO REPRESENT THE GOVERNMENT Any official or other person appointed or designated in accordance with law to appear for the government of the Philippines or any of its officials shall have all the rights of a duly authorized member of the bar to appear in any case in which the government has an interest, direct or indirect, or in which such official is charged in his official capacity.

RULES ON PUBLIC OFFICIALS REGARDING PRACTICE OF

LAW PUBLIC OFFICIALS WHO CANNOT PRACTICE LAW IN THE PHILIPPINES 1. Judges and other officials or employees of the superior court 2. Officials and employees of the Office of the Solicitor General 3. Government Prosecutors 4. President, Vice-President, members of the Cabinet, their deputies and assistants 5. Chairmen and members of the Constitutional Commissions 6. Ombudsman and his deputies 7. Governors, city and municipal mayors 8. Those who, by special law are prohibited from engaging in the practice of their legal profession PUBLIC OFFICIALS WITH RESTRICTIONS IN THE PRACTICE OF LAW 1. Senators and Members of the House of Representatives 2. Members of the Sanggunian 3. Retired Justice or Judge 4. Civil Service officers or employees without permit from their respective department heads [Noriega

vs. Sison 125 SCRA 293] RESTRICTIONS IN THE PRACTICE OF LAW OF MEMBERS OF LEGISLATURE ? CASES: A lawyer-member of the legislature is only prohibited from appearing as counsel before any court of justice, electoral tribunals or quasi-judicial and administrative bodies. The word appearance includes not

only arguing a case before any such body but also filing a pleading on behalf of a client as by simply filing a formal motion, plea or answer. [Ramos vs. Manalac 89 Phil 270] Neither can he allow his name to appear in such pleading by itself or as part of a firm name under the signature of another qualified lawyer because the signature of an agent amounts to signing of a non-qualified senator or congressman, the office of an attorney being originally of agency, and because he will, by such act, be appearing in court or quasi-judicial or administrative body in violation of the constitutional restriction. He cannot do indirectly what the Constitution prohibits directly. [In re: David 93 PHIL 461] RESTRICTIONS IN THE PRACTICE OF LAW OF THE MEMBERS OF THE SANGGUNIAN They shall not: 1. Appear as counsel before any court in any civil case wherein a local government unit or any office, agency or instrumentality of the government is the adverse party; 2. Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office;

3. Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official. [Sec. 90, R.A. 7160] 4. Use property and personnel of the government except when the Sanggunian member concerned is defending the interest of the government

RESTRICTIONS IN THE PRACTICE OF LAW OF RETIRED

JUSTICE/JUDGE As a condition of the pension provided under R.A. 910, no retiring justice or judge of a court of record or city or municipality judge during the time that he is receiving said pension shall: Appear as counsel before any court in: a. Any civil case wherein the government or any subdivision or instrumentality thereof is the adverse party; b. Any criminal case wherein an officer or an employee of the government is accused of an offense committed in relation to his office. 2. Collect any fees for his appearance in any administrative proceedings to maintain an interest adverse to the government, provincial or municipal, or to any of its legally constituted officers [Sec 1, RA 910]. REMEDIES AGAINST UNAUTHORIZED PRACTICE (DICED) 1. Petition for Injunction 2. Declaratory Relief 3. Contempt of Court 4. Disqualification and complaints for disbarment 5. Criminal complaint for estafa against a person who falsely represented to be an attorney to the damage of a party

PRIVILEGES AND DUTIES OF A LAWYER PRIVILEGES OF AN ATTORNEY: 1. To practice law during good behavior before any judicial, quasi-judicial, or administrative tribunal. 2. The first one to sit in judgment on every case, to set the judicial machinery in motion. 3. Enjoys the presumption of regularity in the discharge of his duty.





4. He is immune, in the performance of his obligation to his client, from liability to a third person insofar as he does not materially depart from his character as a quasi-judicial officer. 5. His statements, if relevant, pertinent or material to the subject of judicial inquiry are absolutely privileged regardless of their defamatory tenor and of the presence of malice. OTHER PRIVILEGES: First grade civil service eligibility for any position in the classified service in the government the duties of which require knowledge of law. Second grade civil service eligibility for any other government position which does not prescribe proficiency in law as a qualification. FOUR-FOLD DUTIES OF A LAWYER 1. Court- respect or defend against criticisms, uphold authority and dignity, obey order and processes, assist in the administration of justice. 2. Bar- candor, fairness, courtesy and truthfulness, avoid encroachment in the business of other lawyers, uphold the honor of the profession. 3. Client- entire devotion to clients interest. 4. Public- should not violate his responsibility to society, exemplar for uprighteousness, ready to render legal aid, foster social reforms, guardian of due process, aware of special role in the solution of special problems and be always ready to lend assistance in the study and solution of social problems. SPECIFIC DUTIES OF A LAWYER (SEC. 20, RULE 138) [C2A2R2E2D] 1. To maintain Allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines; 2. To observe and maintain the Respect due to the courts of justice and judicial officers; 3. To Counsel and maintain the respect due to the courts of justice and judicial officers; 4. To Employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law; 5. To maintain inviolate the Confidence and at every peril to himself, to preserve the secrets in connection with his client and to accept no compensation in connection with his clients business except from him or with his knowledge and approval; 6. To Abstain from all offensive personality and to advance no fact prejudicial to the honor and reputation of a party or witness, unless required by the justice of the cause with which he is charged; 7. Not to Encourage either the commencement or the continuance of an action or proceeding, or delay any mans cause, from any corrupt motive or interest; 8. Never to Reject, for any consideration personal to himself, the cause of the defenseless or oppressed; 9. In the Defense of a person accused of crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits to the end that no person may be deprived of life or liberty, but by due process of law.

DUTY OF COUNSEL DE OFICIO A counsel de oficio is expected to render effective service and to exert his best efforts on behalf of an indigent accused. He has as high a duty to a poor litigant as to a paying client. He should have a bigger dose of social conscience and a little less of self-interest. ROLE OF PRIVATE PROSECUTOR A private prosecutor may intervene in the prosecution of a criminal action when the offended party is entitled to indemnity and has not waived expressly, reserved or instituted the civil action for damages. He may prosecute the accused up to the end of the trial even in the absence of the public prosecutor if authorized by the chief of the prosecution office or the Regional State Prosecutor subject to the approval of the court (Sec. 5, Rule 110; Rules of Court dated May 1, 2002).

THE LAWYERS OATH I, ____________, do solemnly swear that I will maintain allegiance to the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the courts as to my clients; and I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God.

NOTARY PUBLIC A person appointed by the court whose duty is to attest to the genuineness of any deed or writing inorder to render them available as evidence of facts stated therein and who is authorized by the statute to administer various oaths. A.M. No. 02-8-13-SC: Rules on Notarial Practice of 2004 (August 1, 2004)

QUALIFICATIONS OF A NOTARY PUBLIC 1. Must be citizen of the Philippines 2. Must be over twenty-one (21) years of age 3. Must be a resident in the Philippines for at least one (1) year and maintains a regular place of work or business in the city or province where the commission is to be issued 4. Must be a member of the Philippine Bar in good standing with clearances from the Office of the Bar Confidant of the Supreme Court and the Integrated Bar of the Philippines 5. Must not have been convicted in the first instance of any crime involving moral turpitude (Rule III, Section 1)

JURISDICTION AND TERM A notary public may perform notarial acts in any place within the territorial jurisdiction of the commissioning court for a period of two (2) years commencing on the 1st day of January of the year in which the commissioning is made UNLESS earlier revoked or the notary public has resigned according to these Rules and the Rules of Court (Rule III, Section 11).




POWERS AND LIMITATIONS OF NOTARIES PUBLIC

POWERS F A notary public is empowered to do the following acts:

(JAOSAC) 1. Acknowledgments; 2. Oaths and affirmations; 3. Jurats; 4. Signature witnessings; 5. Copy certifications; and 6. Any other act authorized by these Rules. F A notary public is authorized to certify the affixing of a signature by thumb or other mark on an instrument or document presented for notarization if: 1. The thumb or other mark is affixed in the presence of the notary public and of two (2) disinterested and unaffected witnesses to the instrument or document; 2. Both witnesses sign their own names in addition to the thumb or other mark; 3. The notary public writes below the thumb or other mark: Thumb or Other Mark affixed by (name of signatory by mark) in the presence of (names and addresses of witnesses) and undersigned notary public, and 4. The notary public notarizes the signature by thumb or other mark through an acknowledgment, jurat or signature witnessing. F A notary public is authorized to sign on behalf of a person who is physically unable to sign or make a mark on an instrument or document if: 1. The notary public is directed by the person unable to sign or make a mark to sign on his behalf; 2. The signature of the notary public is affixed in the presence of two (2) disinterested and unaffected witnesses to the instrument or document; 3. Both witnesses sign their own names; 4. The notary public writes below his signature: Signature affixed by notary in the presence of (names and addresses of person and two (2) witnesses), and

5. The notary public notarizes his signature by acknowledgment or jurat (Rule IV, Section 1).

PROHIBITIONS General Rule: A notary public shall not perform a notarial act outside his regular place of work or business. Exceptions: A notarial act may be performed at the request of the parties in the following sites located within his territorial jurisdiction: a. Public offices, convention halls and similar places where oaths of office may be administered; b. Public function areas in hotels and similar places for the signing of instruments or documents requiring notarization; c. Hospitals and medical institutions where a party to the instrument or document is confined for treatment; and d. Any place where a party to the instrument or document requiring notarization is under detention. F A person shall not perform a notarial act if: 1. the person involved as signatory to the instrument or document-

a. Is not in the notarys presence at the time of the notarization; and b. Is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules (Rule IV, Section 2). 2. the certificate containing an information known or believed to be false; and 3. he shall not affix an official signature or seal on a notarial certificate that is incomplete (Rule IV, Section 5).

DISQUALIFICATIONS A notary public is disqualified from performing a notarial if he: 1) Is a party to the instrument or document; 2) Will receive, as a direct or indirect result any commission, fee, advantage, right, title, interest, cash, property, or other consideration, except as provided that is to be notarized; 3) Is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree (Rule IV, Section 3). When notary public may refuse to notarize even if appropriate fee is tendered: 1) When the notary knows or has good reason to believe that the notarial act or transaction is unlawful or immoral. 2) When the signatory shows a demeanor which engenders in the mind of the notary public reasonable doubt as to the formers knowledge of the consequences of the transaction requiring a notarial act. 3) If in the notarys judgment, the signatory is not acting in his/her own free will (Rule IV, Section 4). 4) If the document or instrument to be notarized is considered as an improper document by these Rules. NOTE: A blank or incomplete instrument or document OR an instrument or document without appropriate notarial certification is considered an Improper Instrument/Document (Rule IV, Section 6). NOTARIAL CERTIFICATES Contents of the Concluding part of the Notarial Certificate: 1) The name of the notary public as exactly indicated in the commission; 2) The serial number of the commission of the notary public; 3) The words Notary Public and the province or city where the notary public is commissioned, the expiration date of the commission and the office address of the notary public; and 4) The Roll of Attorneys number, the Professional Tax Receipt number and the place and date of issuance thereof and the IBP Membership number (Rule VIII, Section 2). REVOCATION OF COMMISSION The Executive Judge shall revoke a commission for any ground on which an application for a commission may be denied. In addition, the Executive Judge may revoke the commission of or impose sanctions upon any notary public who:





1) Fails to keep a notarial register; 2) Fails to make the appropriate entry or entries in his notarial register concerning his notarial acts; 3) Fails to send the copy of the entries to the Executive Judge within the first ten (10) days of the month following; 4) Fails to affix to acknowledgments the date of expiration of his commission; 5) Fails to submit his notarial register, when filled, to the Executive Judge; 6) Fails to make his report, within a reasonable time, to the Executive Judge concerning the performance of his duties, as may be required by the Judge; 7) Fails to require the presence of the principal at the time of the notarial act; 8) Fails to identify a principal on the basis of personal knowledge or competent evidence; 9) Executes a false or incomplete certificate under Section 5, Rule IV; 10) Knowingly performs or fails to perform any other act prohibited or mandated by these Rules; and 11) Commits any other dereliction or act which in the judgment of the Executive Judge constitutes good cause for the revocation of the commission or imposition of administrative sanction (Rule XI, Section 1). PUNISHABLE ACTS The Executive Judge shall cause the prosecution of any person who: 1) Knowingly acts or otherwise impersonates a notary public; 2) Knowingly obtains, conceals, defaces, or destroys the seal, notarial register, or official records of a notary public; and 3) Knowingly solicits, coerces, or in any way influences a notary public to commit official misconduct (Rule XII, Section 1).

TERMS TO REMEMBER Amicus Curiae- is an experienced and impartial attorney invited by the court to appear and help in the disposition of the issues submitted to it. It implies friendly intervention of counsel to call the attention of the court to some matters of law or facts which might otherwise escape its notice and in regard to which it might go wrong. An amicus curiae appears in court not to represent any particular party but only to assist the court. Amicus Curiae par excellence bar associations who appear in court as amici curiae or friends of the court. Acts merely as a consultant to guide the court in a doubtful question or issue pending before it. Attorney ad hoc- a person named appointed by the court to defend an absentee defendant in the suit in which the appointment is made. Attorneys-At-Law that class of persons who are licensed officers of the courts empowered to appear, prosecute and defend, and upon whom peculiar duties, responsibilities and liabilities are developed by law as a consequence. Attorney in fact- simply an agent whose authority is strictly limited by the instrument appointing him. His authority is provided in a special power of attorney or

general power of attorney or letter of attorney. He is not necessarily a lawyer. Attorney of record- the attorney whose name is entered in the records of an action or suit as the lawyer of a designated party thereto. Bar and Bench Bar refers to the whole body of attorneys and counselors collectively, the members of the legal profession: Bench denotes the whole body of judges. Bar Association an association of members of the legal profession like the IBP where membership is integrated or compulsory. Client one who engages the services of a lawyer for legal advice or for purposes of prosecuting or defending a suit in behalf and usually for a fee. Counsel/Attorney de oficio an attorney appointed by the court to defend an indigent defendant in a criminal action. In a criminal action, if the defendant appears without an attorney, he must be informed by the court that it is his right to have an attorney before being arraigned and must be asked if he desires the aid of an attorney. If he desires and is unable to employ an attorney, the court must assign a counsel de oficio to defend him. He is also designated as counsel of indigent litigants. The appointment of a counsel de oficio in that instance is a matter of right on the part of the defendant. On appeal in a criminal case, the appellate court must also appoint a counsel de oficio if, as shown by the certificate of the clerk of court of the trial court, a defendant (a) is confined in prison, (b) without means to employ an attorney, (c) desires to be defended de oficio. House Counsel one who acts as attorney for business though carried as an employee of that business and not as an independent lawyer. Lawyer this is the general term for a person trained in the law and authorized to advice and represent others in legal matters Lead Counsel the counsel on either side of a litigated action who is charged with the principal management and direction of a partys case, as distinguished from his juniors or subordinates. Of Counsel an experienced lawyer, usually a retired member of the judiciary, employed by law firms as consultants. Practicing Lawyer one engaged in the practice of law who by license are officers of the court and who are empowered to appear, prosecute and defend a clients cause. Pro Se - an appearance by a lawyer in his own behalf. Trial Lawyer one who personally handles cases in court, administrative agencies of boards which means engaging in actual trial work, either for the prosecution or for the defense of cases of clients.

II .THE CANONS OF PROFESSIONAL RESPONSIBILITY Chapter I: The Lawyer and Society CANON -




1. Uphold the Constitution and obey the laws of the land 2. Make legal services available in an efficient and convenient manner 3. Use of true, honest, fair, dignified and objective information in making known legal services 4. Participate in the improvement of the legal system 5. Keep abreast of legal development and participate in continuing legal education program and assist in disseminating information regarding the law and jurisprudence 6. Applicability of the CPR to lawyers in the government service

Chapter II: The Lawyer and the Legal Profession CANON - 7. At all times uphold the integrity and dignity of the Profession and support the activities of the IBP 8. Conduct himself with courtesy, fairness and candor toward his colleagues and avoid harassing tactics 9. Not to directly or indirectly assist in the unauthorized practice of law

Chapter III: The Lawyer and the Courts CANON - 10. Owes candor, fairness and good faith to the court 11. Observe and maintain the respect due courts and judicial officers 12. Duty to assist in the speedy and efficient administration of justice 13. Rely upon the merits of his cause, refrain from any impropriety which tends to influence courts, or give the appearance of influencing the court

Chapter IV: The Lawyer and the Client CANON - 14. Not to refuse his services to the needy 15. Observe candor, fairness and loyalty in all his dealings and transactions with clients 16. Hold in trust all the moneys and property of his client that may come to his possession 17. Owes fidelity to clients cause and be mindful of the trust and confidence reposed in him 18. Serve client with competence and diligence 19. Represent client with zeal and within the bounds of law 20. Charge only fair and reasonable fees 21. Preserve the confidence and secrets of client even after the atty.-client relation is terminated 22. Withdraw services only for good cause and upon notice

LAWYERS DUTIES TO SOCIETY CANON 1: UPHOLD THE CONSTITUTION AND OBEY THE

LAWS OF THE LAND DISCOURAGING LAW SUITS

Under Rule 1.03, a lawyer shall not for any corrupt motive or interest, encourage any suit or proceeding or delay any mans cause. CRIME OF MAINTENANCE A lawyer owes to society and to the court the duty not to stir up litigation. The following are unprofessional acts within the prohibition: 1. Volunteering advice to bring lawsuit except where ties of blood, relationship, and trust make it a duty to do so. 2. Hunting up defects in titles or other causes of action and informing thereof to be employed to bring suit or collect judgment, or to breed litigation by seeking out claims for personal injuries or any other grounds to secure them as clients. 3. Employing agents or runners for like purposes. 4. Paying direct or indirect reward to those who bring or influence the bringing of such cases to his office. 5. Searching for unknown heirs and soliciting their employment. 6. Initiating a meeting of a club and inducing them to organize and contest legislation under his guidance. 7. Purchasing notes to collect them by litigation at a profit. A lawyer shall refrain from committing barratry and ambulance chasing of cases. Barratry offense of frequently inciting and stirring up quarrels and suits. The lawyers act of fomenting suits among individuals and offering his legal services to one of them Ambulance Chasing a lawyers act of chasing the victims of an accident for the purpose of talking to the same victim or the latters relatives and offering his legal services for the filing of the case against the person who caused the accident. Ambulance Chaser is a lawyer who haunts hospitals and visits the homes of the afflicted, officiously intruding their presence and persistently offering his service on the basis of a contingent. Ambulance chasing has spawned recognized evils such as: (FSMD) 1. Fomenting of litigation with resulting burdens on the courts and the public. 2. Subornation of perjury. 3. Mulcting of innocent persons by judgments, upon manufactured causes of action. 4. Defrauding of injured persons having proper causes of action but ignorant of 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 persons.

CANON 2: MAKING AVAILABLE EFFICIENT LEGAL SERVICE A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed. (Rule 2.01)

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 latters rights. (Rule 2.02) CANON 3: USE OF TRUE, HONEST, FAIR AND OBJECTIVE INFORMATION IN MAKING KNOWN LEGAL SERVICES





ADVERTISING AND SOLICITATION General Rule: A lawyer cannot advertise his talent, as he is a member of an honorable profession whose primary purpose is to render public service and help secure justice and in which the remuneration is a mere incident. It is highly unethical for an attorney to advertise his talents or skill as a merchant advertises his wares. [In re: Tagorda 53 Phil 42] Exceptions:

1. Writing legal articles 2. Engaging in business or other occupations except when such could be deemed improper, be seen as indirect solicitation or would be the equivalent of law practice. 3. Law lists, but only brief biographical and informative data 4. Ordinary, professional cards 5. Notice to other local lawyers and publishing in a legal journal of ones availability to act as an associate for them 6. The 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. 7. Seeking a public office, which can only be held by a lawyer or, in a dignified manner, a position as a full time corporate counsel. 8. Simple announcement of the opening of a law firm or of changes in the partnership, associates, firm name or office address, being for the convenience of the profession. 9. Listing in a phone directory, but not under a designation of a special branch of law. 10. Activity of an association for the purpose of legal representation.

Solicitation of Cases Constitutes Malpractice The law prohibits lawyers from soliciting cases for the purpose of gain, either personally or through paid agents or brokers and makes the act malpractice [Rule 138, sec. 27, Rules of Court]. The rule prohibits professional touting. Neither shall a lawyer charge rates lower than those customarily prescribed unless the circumstances so warrant. USE OF LAW FIRM NAME 1. In the choice of a firm name, no false, misleading or assumed name shall be used. The continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased. [Rule 3.02, Code of Professional Responsibility]. Hence, the rule abandoned the doctrine laid down in the case of In re: Sycip, 92 SCRA 1 (1979). Reason: All of the partners by their joined efforts over a period of years contributed to the goodwill attached to the firm name, and this goodwill is disturbed by a change in firm name every time a partner dies. 2. 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. [Rule 3.02, Code of Professional Responsibility]. 3. 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 the foreign law firm in the country

is unethical. (Dacanay vs. Baker & McKenzie, G.R. Adm. Case No. 2131)

CANON 4: PARTICIPATE IN THE IMPROVEMENT OF THE

LEGAL SYSTEM Examples: 1. Presenting position papers or resolutions for the introduction of pertinent bills in Congress; 2. Petitions with the SC for the amendment of the Rules of Court. CANON 5: KEEP ABREAST OF LEGAL DEVELOPMENTS AND PARTICIPATE IN CONTINUING LEGAL EDUCATION

PROGRAM

THREE-FOLD OBLIGATIONS OF A LAWYER: 1. He owes it to himself to continue improving his knowledge of the law. 2. He owes it to his profession to take an active interest in the maintenance of high standards of legal education. 3. He owes it to the lay public to make the law a part of their social consciousness.

Bar Matter 850: MANDATORY CONTINUING LEGAL

EDUCATION (MCLE) (Adopting the Rules on the Continuing Legal Education for Members of the Integrated Bar of the Philippines) August 8, 2000 Purpose: To ensure that throughout their career, they keep abreast with law and jurisprudence, maintain the ethics of the profession and enhance the standards of the practice of law. Requirements of Completion of MCLE Members of the IBP, unless exempted under Rule 7, shall complete every three (3) years at least 36 hours of continuing legal education activities. The 36 hours shall be divided as follows: a. 6 hours legal Ethics b. 4 hours trial and pretrial skills c. 5 hours alternative dispute resolution d. 9 hours updates on substantive and procedural laws and jurisprudence e. 4 hours writing and oral advocacy f. 2 hours international law and international conventions g. 6 hours such other subjects as may be prescribed by the Committee on MCLE Parties Exempted from the MCLE 1. The President, Vice-President, and the Secretaries and Undersecretaries of executive departments; 2. Senators and Members of the House of Representatives; 3. The Chief Justice and Associate Justices of the SC, incumbent and retired justices of the judiciary, incumbent members of the Judicial and Bar Council and incumbent court lawyers covered by the Philippine Judicial Academy Program of continuing legal education; 4. The Chief State Counsel, Chief State Prosecutor and Assistant Secretaries of the Department of Justice; 5. The Solicitor-General and the Assistant Solicitor-General; 6. The Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel;




7. The Chairman and Members of the Constitutional Commissions; 8. The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsman and the Special Prosecutor of the Office of the Ombudsman; 9. Heads of government agencies exercising quasi-judicial functions; 10. Incumbent deans, bar reviewers and professors of law who have teaching experience for at least 10 years in accredited law schools; 11. The Chancellor, Vice-Chancellor and members of the Corps of Professional Lecturers of the Philippine Judicial Academy; and 12. Governors and Mayors Other Exempted Parties 1. Those who are not in law practice, private or public 2. Those who have retired from law practice with the approval of the IBP Board of Governors Good Cause for Exemption from or modification of requirement A member may file a verified request setting forth good cause for exemption (such as physical disability, illness, post-graduate study abroad, proven expertise in law) from compliance with or modification of any of the requirements, including an extension of time for compliance, in accordance with procedure to be established by the committee on MCLE. Proof of exemption: Applications for exemption from or modification of the MCLE requirement shall be under oath and supported by documents. Consequences of Non-Compliance 1. A member who fails to comply with the requirements after the 60-day period shall be listed as delinquent member by the IBP Board of Governors upon recommendation of the Committee on MCLE. 2. The listing as a delinquent member is administrative in nature but shall be made with notice and hearing by the Committee on MCLE. CANON 6: APPLICABILITY OF THE CPR TO LAWYERS IN

THE GOVERNMENT SERVICE Restriction Against Using Public Office to Promote Private Interest Public officials and employees during their incumbency shall NOT: 1. Own, control, manage or accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law 2. Engage in the private practice of their profession unless authorized by the constitution or law, provided that such practice will not conflict or tend to conflict with their official functions. 3. Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office 4. Use or divulge confidential or classified information officially known to them by reason of their office and not available to the public.

Restrictions Against Former Official from Accepting Certain Employment A lawyer shall NOT, after leaving the government service, accept engagement or employment in connection with any matter in which he had intervened while in said service. [Rule 6.03, Code of Professional Responsibility]

Section 7 (b), RA 6713 prohibits any former public official or employee for a period of one year after retirement or separation from office to practice his profession in connection with any other matter before the office he used to be with.

THE LAWYER AND THE LEGAL PROFESSION

CANON 7: UPHOLD THE INTEGRITY AND DIGNITY OF THE PROFESSION AND SUPPORT THE ACTIVITIES OF

THE IBP 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. (Rule 7.01) A lawyer shall not, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. (Rule 7.03) ? CASE: Counsels act of filing multiple complaints against herein complainants reflects on his fitness to be a member of the legal profession. His act evinces vindictiveness, a decidedly undesirable trait whether in a lawyer or another individual, as complainants were instrumental in respondents dismissal from the judiciary. (Saburnido vs. Madrono, 366 SCRA 1, September 26, 2001) CANON 8: COURTESY, FAIRNESS AND CANDOR TOWARD

HIS COLLEAGUES AND AVOID HARASSING TACTICS A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper. (Rule 8.01) ? CASE: Although aware that the plaintiff students were represented by counsel, respondent attorney, counsel for the defendants proceeded, nonetheless, to negotiate with them and their parents without at the very least communicating the matter to their lawyer. This failure of respondent is an inexcusable violation of the canons of professional ethics and in utter disregard of a duty owing to a colleague. (Camacho vs. Pangulayan, 328 SCRA 631, March 22, 2000) CANON 9: PREVENTING UNAUTHORIZED PRACTICE OF

LAW Public policy requires that the practice of law be limited to those individuals found duly qualified in education and character. Purpose: To protect the public, the court, the client and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the court. 1. A lawyer is prohibited from allowing an intermediary to intervene in the performance of his professional obligation. 2. A lawyer cannot 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. 3. A lawyer cannot divide or stipulate a fee for legal services with a person not licensed to practice law. Exceptions:





1. Where there is a pre- existing agreement with a partner or associate that, upon the latters death, money shall be paid over a reasonable period of time to his estate or to persons specified in the agreement; 2. Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; 3. Where a lawyer or law firm includes non-lawyer employees in a retirement plan, even if the plan is based in whole or in part on a profit-sharing arrangement. LAWYERS DUTIES TO COURTS

CANON 10: CANDOR, FAIRNESS AND GOOD FAITH TO

COURTS A lawyer shall NOT do any falsehood, nor consent to the doing of any in court; nor shall be misled, or allow the court to be misled by any artifice. (Rule 10.01)

REQUIREMENTS OF CANDOR: 1. A lawyer shall not suppress material and vital facts which bear on the merit or lack of merit of complaint or petition; 2. A lawyer shall volunteer to the court any development of the case which has rendered the issue raised moot and academic; 3. Disclose to court any decision adverse to his position of which opposing counsel is apparently ignorant and which court should consider in deciding a case; 4. He shall not represent himself as lawyer for a client, appear for client in court and present pleadings, only to claim later that he was not authorized to do so. Note: A lawyer is not an umpire but an advocate. He is not obliged to refrain from making every proper argument in support of any legal point because he is not convinced of its inherent soundness. Neither is he obliged to suggest arguments against his position. 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 a law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved. (Rule 10.02) A lawyer shall observe the rules of procedure and shall NOT misuse them to defeat the ends of justice. (Rule 10.03)

CANON 11: OBSERVANCE OF RESPECT DUE THE COURTS A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others. A lawyer should show respect due the court and judicial officer by appearing during the trial of a case punctually and in proper attire. A lawyers language should be forceful but dignified, emphatic but respectful as befitting an advocate and in keeping with the dignity of the legal profession. RIGHT AND DUTY OF LAWYER TO CRITICIZE COURTS The fact that a person is a lawyer does not deprive him of the right, enjoyed by every citizen, to comment on and criticize the actuations of a judge. However, what he can ordinarily say against a concluded litigation and the manner the judge handed down the decision therein may NOT generally be said to a pending action. The court, in a pending litigation, must be shielded from embarrassment or influence in its all important duty of deciding the case. On the other hand, once a litigation is

concluded the judge who decided it is subject to the same criticism as any other public official because then his ruling becomes public property and is thrown open to public consumption. But it is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety. CANON 12: ASSISTING IN SPEEDY AND EFFICIENT

ADMINISTRATION OF JUSTICE 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 presentation. He should also be ready with the original documents for comparison with the copies. [Rule 12.01 Code of Professional Responsibility]

A lawyer shall NOT unduly delay a case, impede the execution of judgment or misuse court processes. [Rule 12.04, Code of Professional Responsibility] ? CASE: The Court further commented that it is understandable for a party in the situation to make full use of every conceivable legal defense the law allows it. In the appraisal, however, of such attempts to evade liability to which a party should respond, it must ever be kept in mind that procedural rules are intended as an aid to justice, not as means for its frustration. Technicalities should give way to the realities of the situation. (Economic Insurance Co., Inc. vs. Uy Realty Co.)

The duty of a lawyer to assist in the speedy and efficient administration of justice includes the duty to refrain from talking to his witness during a break or recess in the trial while the witness is still under examination. FORUM SHOPPING - the act of filing repetitious suits in different courts. It is committed through the following: 1. Going from one court to another in the hope of securing a favorable relief in one court, which another court has denied. 2. Filing repetitious suits or proceedings in different courts concerning the same subject matter after one court has decided the suit with finality. 3. Filing a similar case in a judicial court after receiving an unfavorable judgment from an administrative tribunal.

Forum shopping is prohibited by Supreme Court Circular No. 28-91, and the corresponding penalties for violation thereof are as follows: 1. Any violation of this circular shall be a cause for the summary dismissal of the multiple petition or complaint; 2. Any willful and deliberate forum shopping by any party and his lawyer with the filing of multiple petitions or complaints to ensure favorable action shall constitute direct contempt of court; 3. The submission of a fake certification under par. 2 of the Circular shall likewise constitute contempt of court, without prejudice to the filing of a criminal action against the guilty party. The lawyer may also be subjected to disciplinary proceedings.

CANON 13: AVOIDING IMPROPRIETY THAT TENDS TO

INFLUENCE THE COURT 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.




A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with judges [Rule 13.01, Code of Professional Responsibility] A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party. [Rule 13.02, Code of Professional Responsibility] A lawyer shall not brook nor invite interference by another branch or agency of the government in the normal course of judicial proceedings. [Rule 13.03 Code of Professional Responsibility]

ATTORNEY-CLIENT RELATIONSHIP

NATURE OF RELATION

1. strictly personal; 2. highly confidential and fiduciary

GENERAL RULES PROTECTING ATTORNEY-CLIENT RELATIONSHIPS 1. Best efforts must be exerted by the attorney to protect his clients interest; 2. The attorney must promptly account for any fund or property entrusted by or received for his client; 3. An attorney cannot purchase his clients property or interest in litigation; 4. The privacy of communications shall at all times be upheld; 5. An attorney cannot represent a party whose interest is adverse to that of his client even after the termination of the relation. CREATION OF RELATION: FORMS OF EMPLOYMENT AS COUNSEL TO A CLIENT 1. Oral when the counsel is employed without a written agreement, but the conditions and amount of attorneys fees are agreed upon. 2. Express when the terms and conditions including the amount of fees, are explicitly stipulated in a written document which may be a private or public document. Written contract of attorneys fees is the law between the lawyer and the client. 3. Implied when there is no agreement, whether oral or written, but the client allowed the lawyer to render legal services not intended to be gratuitous without objection, and the client is benefited by reason thereof. Note: While a written agreement for professional services is the best evidence to show the relation, formality is not an essential element of the employment of an attorney. The absence of a written contract will not preclude a finding that there is a professional relationship. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied. ADVANTAGES OF A WRITTEN CONTRACT BETWEEN THE LAWYER AND THE CLIENT: 1. It is conclusive as to the amount of compensation.

2. In case of unjustified dismissal of an attorney, he shall be entitled to recover from the client full compensation stipulated in the contract [RA 636]. CANON 14: NOT TO REFUSE HIS SERVICES TO THE NEEDY

RIGHT TO DECLINE EMPLOYMENT; EXCEPTIONS

General Rule: A lawyer is not obliged to act as legal counsel for any person who may wish to become his client. He has the right to decline employment. Exceptions: 1. A lawyer shall not refuse his services to the needy. 2. He shall not decline to represent a person solely on account of the latters race, sex, creed or status of life or because of his own opinion regarding the guilt of said person. 3. He shall not decline, except for serious and sufficient cause like (1) if he is not in a position to carry out effectively or competently; (2) if he labors under a conflict of interest between him and the prospective client or between a present and prospective client. Reasons: IBP Guidelines, Art.1, Sec. 1. Public Service: 1. Legal aid is not a matter of charity but a public responsibility. 2. It is a means for correction of social imbalance. 3. Legal aid offices must be so organized as to give maximum possible assistance to indigent and deserving members of the community and to forestall injustice.

DUTY TO DECLINE EMPLOYMENT A lawyer should decline professional employment even though how attractive the fee offered may be if its acceptance will involve: 1. A violation of any of the rules of the legal profession. 2. Nullification of a contract which he prepared. 3. Advocacy in any matter in which he had intervened while in the government service. 4. Employment, the nature of which might easily be used as a means of advertising his professional services or his skill. 5. Employment with a collection agency which solicits business to collect claims. 6. Any matter in which he knows or has reason to believe that he or his partner will be an essential witness for the prospective client. ETHICAL CONSIDERATIONS IN TAKING A BAD CASE In a Criminal Case: A lawyer may accept a losing criminal case because every accused is presumed innocent and is entitled to counsel. In a Civil Case: The rules and ethics of the profession enjoin a lawyer from taking a bad case.

Reasons: 1. The attorneys signature in every pleading constitutes a certificate by him that there is good cause to support it and that it is not interposed for delay, and willful violation of such rule shall subject him to disciplinary action. 2. It is the attorneys duty to counsel or maintain such actions or proceedings only as appear to him to be just and only such defenses as he believes to be honestly debatable under the law. 3. A lawyer is not to encourage either the commencement or the continuance of an action or proceeding, or delay any mans cause, for any corrupt motive or interest. 4. A lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or injure the opposite party or to work oppression or wrong.





However, a lawyer may accept a losing civil case provided that, in so doing, he must not engage in dilatory tactics and must advise his client about the prospects and advantage of settling the case through a compromise. LAWYERS DUTIES TO CLIENT

CANON 15: CANDOR, FAIRNESS AND LOYALTY IN HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS

CONFLICT OF INTEREST Duty of a Lawyer to His Client in Case There is Conflict of Interest A lawyer, in conferring with a prospective client shall ascertain as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client. [Rule 15.01] It is the duty of a lawyer at the time of retainer to disclose to the client all circumstances of his relations to the parties and any interest in connection with the controversy, which might influence the client in the selection of counsel. It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of facts. Within the meaning of this Canon, a lawyer represents conflicting interests when, in behalf of one client it is his duty to contend for that which duty to another client requires him to oppose.

Tests to Determine Conflicting Interests 1. Will the attorney be required to contest for that which his duty to another client requires him to oppose? (Conflicting duties) 2. Will the acceptance of a new relation invite suspicion and/or actually lead to unfaithfulness or double-dealing towards another client? (Invitation of suspicion) 3. Will the attorney be called upon in his new relation to use against his first client any knowledge acquired in the previous employment? (Use of prior knowledge

obtained)

INSTANCES WHEN A LAWYER IS CONSIDERED HAVING CONFLICTING DUTIES 1. As an employee of a corporation whose duty is to attend legal affairs, he cannot join a labor union of employees in that corporation; 2. As a lawyer who investigated an accident as counsel for an insurance, he cannot represent the injured person; 3. As a receiver of a corporation, he cannot represent the creditor; 4. As a representative of the obligor, he cannot represent the obligee; 5. As a lawyer representing a party in a compromise agreement, he cannot be subsequent lawyer representing another client who seeks to nullify the agreement;

Effects of Representing Adverse Interests 1. Disqualification as counsel of new client on petition of former client. 2. Where such is unknown to, and becomes prejudicial to the interests of the new client, a judgment against such may, on that ground, be set aside.

3. A lawyer can be held administratively liable through disciplinary action and may be held criminally liable for betrayal of trust. 4. The attorneys right to fees may be defeated if found to be related to such conflict and such was objected to by the former client, or if there was a concealment and prejudice by reason of the attorneys previous professional relationship with the opposite party.

? CASE: Jurisprudence instructs that there is a representation of conflicting interests if the acceptance of the new retainer will require the attorney to do anything which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation, to use against his first client any knowledge acquired through their connection. Another test to determine if there is a representation of conflicting interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof. (Pormento, Sr. vs. Atty. Pontevedra, A.C. No. 5128, March 31, 2005)

CANON 16: LAWYERS DUTY TO HOLD IN TRUST ALL THE MONEY AND PROPERTY OF HIS CLIENT THAT MAY COME

TO HIS POSSESSION PROHIBITION AGAINST PURCHASE OF PROPERTY IN

LITIGATION Elements of Prohibition 1. There is an attorney-client relationship; 2. The property is in litigation; 3. The attorney is the counsel of record in the case; 4. The attorney, by himself or through an agent, purchases such property during the pendency of said case [Art. 1491 of the Civil Code] Other Instances Where Rule is Inapplicable 1. Where the property purchased by a lawyer was not involved in litigation. 2. Where the sale took place before it became involved in the suit. 3. Where the attorney at the time of the purchase was not counsel in the case. 4. Where the purchaser of the property in litigation was a corporation even though the attorney was an officer thereof. 5. Where the sale took place after the termination of the litigation. 6. A lawyer may accept an assignment from his client of a money judgment rendered in the latters favor in a case in which he was not counsel, in payment of his professional services performed in another case. 7. Prohibition is inapplicable to a contract for attorneys fees contingent upon the outcome of the litigation. CANON 17: FIDELITY TO THE CAUSE OF HIS CLIENT AND MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN

HIM ? CASE: Ordinarily, lawyers are not obliged to act either as advisers or as advocates of any person who may wish to become their client. They may decline employment and refuse to accept representation, if they are not in a position to carry it out effectively or competently. But once they agree to handle a case, attorneys are required by the Canons of Professional Responsibility to undertake the task with zeal, care and utmost devotion.




Acceptance of money from a client establishes an attorney-client relationship and gives rise to the duty of fidelity to the clients cause. Every case accepted by a lawyer deserves full attention, diligence, skill and competence, regardless of importance. (Rollon vs. Atty. Naraval, A.C. No. 6424, March 4, 2005)

CANON 18: SERVE CLIENT WITH COMPETENCE AND

DILIGENCE DUTY TO PROTECT CLIENTS INTEREST The attorneys duty to safeguard the clients interests commences from his retainer until his effective release from the case or the final disposition of the whole subject matter of the litigation. During that period he is expected to take such reasonable steps and such ordinary care as his clients interests may require.

PREPARATION OF PLEADINGS A lawyer shall not handle any legal matter without any adequate preparation. (Rule 18.02) A lawyer should prepare his pleading with great care and circumspection. He should refrain from using abrasive and offensive language, for it merely weakens rather than strengthens the force of legal reasoning and detracts from its persuasiveness. In preparing a complaint for damages, counsel for plaintiff should allege and state the specific amounts claimed not only in the body of the complaint but also in the prayer, so that the proper docket fees can be assessed and paid.

DUTY TO KEEP CLIENT FULLY INFORMED A lawyer shall keep the client informed of the status of his case. (Rule 18.04) He should notify his client of an adverse decision while within the period to appeal to enable his client to decide whether to seek an appellate review. He should communicate with him concerning the withdrawal of appeal with all its adverse consequences. The client is entitled to the fullest disclosure of the mode or manner by which his interest is defended or why certain steps are taken or omitted. Doctrine of Imputed Knowledge the knowledge acquired by an attorney during the time that he is acting within the scope of his authority is imputed to the client. It is based on the assumption that an attorney, who has notice of matter affecting his client, has communicated the same to his principal in the course of professional dealings. The doctrine applies regardless of whether or not the lawyer actually communicated to the client what he learned in his professional capacity, the attorney and his client being one juridical person. Exceptions to the Rule that Notice to Counsel is Notice to Client 1. If strict application might foster dangerous collusion to the detriment of justice. 2. Service of notice upon party instead of upon his attorney is ordered by court. 3. Notice of pre trial is required to be served upon parties and their respective lawyers. 4. In appeal from the lower court to the RTC, upon docketing of appeal. DUTY WHEN THE ACCUSED INTENDS TO PLEAD GUILTY A PLEA OF GUILTY is an admission by the accused of his guilt of crime as charged in the information and of the truth of the facts alleged, including the qualifying and aggravating circumstances.

It is the duty of the defense counsel when his client desires to enter a plea of guilty to: (ACEPA) 1. Fully acquaint himself with the records and surrounding circumstances of the case 2. Confer with the accused and obtain from him his account of what had happened 3. Advise him of his constitutional rights 4. Thoroughly explain to him the import of a guilty plea and the inevitable conviction that will follow 5. See to it that the prescribed procedure which experience has shown to be necessary to the administration of justice is strictly followed and disclosed in the court records. DUTY TO COMPLY WITH CLIENTS LAWFUL REQUEST A client shall respond within a reasonable time to the clients request for information. (Rule 18.04) A lawyer should endeavor to seek instruction from his client on any substantial matter concerning the litigation, which may require decision on the part of the client, such as whether to compromise the case or to appeal an unfavorable judgment. He should give his client sound advice on any such and similar matters and comply with the clients lawful instructions relative thereto. He should resist and should never follow any unlawful instruction of his client.

CANON 19: DUTY TO REPRESENT CLIENT WITH ZEAL

AND WITHIN THE BOUNDS OF THE LAW DUTY TO RESTRAIN CLIENT FROM IMPROPRIETY A lawyer should use his best efforts to restrain and to prevent his client from doing those things which he himself ought not to do, particularly with reference to the conduct toward the court, judicial officer, witness and suitor and if the client persists in such wrong doing, the lawyer should terminate their relation. Duty to Advice Candidly As officers of the court, counsels are under obligation to advise their clients against making untenable and inconsistent claims. The counsel should inform his client and dissuade him from filing the case if totally devoid of merit. If he finds that his clients cause as fairly meritorious and ripe for judicial adjudication, he should refrain from making bold and confident assurances of success. Duty of Lawyer in Case of Knowledge of Clients Fraud 1. He must promptly call upon the client to rectify the same and failing which, 2. He shall terminate their relationship with such client in accordance with the Rules of Court. AUTHORITY OF A LAWYER Appearance- the coming into court as a party either as a plaintiff or as a defendant and asking relief therefrom. By virtue of Sec. 20, Rule 14 of the 1997 Rules of Civil Procedure, there is no more distinction between general appearance and special appearance, in the sense that a defendant may file a motion to dismiss not only on the ground of lack of jurisdiction over his person but also on some other grounds without waving the jurisdiction of the court over his person. Presumption of Authority An attorney is presumed to be properly authorized to represent any cause in which he appears in all





stages of the litigation and no written authority is required to authorize him to appear. The presumption is a strong one. A mere denial by a party that he has authorized an attorney to appear for him, in the absence of compelling reason, is insufficient to overcome the presumption especially when the denial comes after the rendition of an adverse judgment. Effects of an Unauthorized Appearance 1. Party is not bound by the attorneys appearance in the case in or by the judgment rendered therein. 2. Court does not acquire jurisdiction over the person. 3. The adverse party who has been forced to litigate as a defendant by the unauthorized action on the part of the attorney for the plaintiff may, on that ground, move for the dismissal of the complaint. 4. If unauthorized appearance is willful, attorney may be cited for contempt as an officer of the court who has misbehaved in his official transactions, and he may be disciplined for professional misconduct.

Ratification of Unauthorized Appearance 1. EXPRESS: categorical assertion by client that he has authorized a lawyer or that he confirms his authorization to represent him in the case. 2. IMPLIED: where a party with knowledge of the fact that a lawyer has been representing him in a case, accepts benefits of representation or fails to promptly repudiate the assumed authority.

Requisites for Implied Ratification by Silence 1. Party represented by lawyer must be of age, competent or if suffers from disability, has guardian or legal representative. 2. Party or guardian is aware of attorneys representation. 3. He fails to promptly repudiate assumed authority. Authority of Attorney in the Conduct of Litigation A lawyer has authority to bind the client in all matters of ordinary judicial procedure. He can bind his client on substantial matters only with the clients express or implied consent. A client may waive, surrender, dismiss, or compromise any of his rights involved in a litigation in favor of the other party even without or against the consent of his attorney. Authority to Compromise Compromise- a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced. General Rule: The attorney has no authority to compromise his clients case. Reason: Because the client, even if represented by counsel, retains exclusive control over the subject matter of the litigation. The client can, of course, authorize his lawyer to compromise his case, and the settlement made by the lawyer will bind his client. Exception: Where the lawyer is confronted with an emergency and prompt, urgent action is necessary to protect the interest of his client and there is no opportunity for consultation with him. Mistakes or Negligence of Lawyer Binding Upon Client General Rule: Client is bound by attorneys conduct, negligence and mistake in handling case or in management

of litigation and in procedural technique, and he can not be heard to complain that result might have been different had his lawyer proceeded differently. Exceptions: 1. Where adherence t

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Legal Ethics Reviewer San Beda