114557811-Agpalo-Legal-Ethics-Reviewer.txt

LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo CHAPTER 1 INTRODUCTORY Preliminary Legal Ethics 1. Branch of moral science which treats of the duties w hich an attorney owes to the court, to his client, to his colleagues in the prof ession and to the public. 2. It is the embodiment of all principles of morality and refinement that should govern the conduct of every member of the bar The law is not a trade nor a craft but a profession. Its basic ideal is to render publi c service and secure justice to those who seek its aid. Those enrolled in its ra nks should not only master its tenets and principles but also accord continuing fidelity to them. Obligation not an easy task due to commercialism in all fields of human endeavor. To fulfill obligation: 1. Professional standards be constant ly inculcated among lawyers. 2. Manual of equipment rules and ethics of the profes sion collated, readily available to every attorney. Sources of Legal Ethics: 1. The 1987 Constitution. 2. Applicable Jurisprudence. 3. Code of Professional Resp onsibility. 4. New Civil Code. 5. Rules of Court. 6. Revised Penal Code. 7. Loca l Government Code. 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 admini stration 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 res ort to current business methods of advertising and encroachment on their practic e, or dealing directly with their clients. Definitions LEGAL ETHICS o Body of all principles of morality and refinement that should govern the conduct of every me mber of the bar. o Living spirit of the profession. o Branch of moral science whic h treats of duties which an attorney owes to the court, to his client, to his co lleagues, and to the public. Terms used to describe a member of the legal profes sion: o Lawyer, Attorney, or Attorney-AtLaw. o Advocate, Barrister, Counsel or C ounselor. o Proctor, Solicitor. o Spanish: Abogado. o Filipino: Manananggol. The term refers to that class of persons who by license are officers of the court e mpowered to appear, prosecute, and defend. A person who is a member of the Phili ppine Bar who, by warrant of 1 ralc2011

LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo

another, practices law, or acts professionally in legal formalities. Those who p assed the Sharia Bar not entitled to be called Attorneys unless admitted to the Phi lippine Bar. Counsel de parte: o An attorney retained by a party litigant, usual ly for a fee, to prosecute or defend his cause in court. o Implies freedom of ch oice either on the attorney or the litigant. Counsel de oficio: o Attorney appoi nted by the court. o To defend an indigent defendant in a criminal action. o To represent a destitute party. Attorney of record: o Attorney whose name, together with his address, is entered in the record of the case as the designated counse l of the party litigant. o To whom judicial notices are sent. A lawyer of counsel is an experienced lawyer, who is usually a retired member of judiciary employed by law firms as consultant. Amicus Curiae is: o An experienced and impartial att orney invited by the court to appear and help in the disposition of issues submi tted to it. o 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 no tice and in regard to which it might go wrong. o Appears in court not to represe nt any particular party but only to assist the court. Amicus Curiae par excellen ce 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 pendin g before it. Bar refers to the legal profession. Bench refers to the judiciary. Clie nt 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. Lawyer this is the general term for a person trained in the law and authorized to advice and re present others in legal matters Attorneys-At-Law that class of persons who are l icensed officers of the courts empowered to appear, prosecute and defend, and up on whom peculiar duties, responsibilities and liabilities are developed by law a s a consequence. Attorney in fact- simply an agent whose authority is strictly l imited 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. Bar Association an association of members of the legal pro fession like the IBP where membership is integrated or compulsory. House Counsel one who acts as attorney for business though carried as an employee of that bus iness and not as an independent lawyer. 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. Practicing Lawyer one engaged in the practice of law who by license are officers of the cou rt and who are empowered to appear, prosecute and defend a clients cause. 2 ralc2011


Pro Se - an appearance by a lawyer in his own behalf. Trial Lawyer one who perso nally handles cases in court, administrative agencies of boards which mean engag ing in actual trial work, either for the prosecution or for the defense of cases of clients.

Power to regulate practice of law The Constitution [Art. VIII, Sec. 5(5)] vests this power of control and regulation in the Supreme Court. The constitutional po wer to admit candidates to the legal profession is a judicial function and invol ves the exercise of discretion. Const art. XII, sec. 14. o The practice of all p rofessions in the Philippines shall be limited to Filipino citizens, save in cas es prescribed by law. The SC acts through a Bar Examination Committee in the exe rcise 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. Practice of law is impressed with public interest. o Attorney takes part in one of the most important functions of the State The Administratio n of Justice. o Duty of the State to control and regulate the practice of law to promote public welfare. Practice of law is inseparably connected with the exerc ise of its judicial power in the administration of justice. LEGISLATURES EXERCISE OF POLICE POWER may enact laws regulating the practice of law but may not pass a law ralc2011 that will control the Supreme Court on its function to decide who may enjoy the privilege of practicing law. Could be considered unconstitutional. SC POWER TO R EGULATE PRACTICE OF LAW includes: 1. Authority to define that term. 2. Prescribe qualifications of a candidate and the subjects of the bar exams. 3. Decide who will be admitted to the practice. 4. Discipline, suspend, or disbar any unfit or unworthy member of the bar. 5. Reinstate any disbarred attorney. 6. Ordain the integration of the Philippine bar. 7. Punish for contempt any person for unautho rized 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 identity. Power to regulate the practice of law is not an a rbitrary or despotic power to be exercised at the pleasure of the court. It is t he duty of the court to exercise it by a sound and just judicial discretion.

Nature of office of attorney An attorney is more than a mere agent because he po ssesses special powers of trust and confidence reposed in him by his client. Ind ependent as the judge. In a limited sense, a public officer, although not in the constitutional or statutory meaning of the term. Occupies a quasi-judicial offi ce because he is in fact an officer of the court. The title Attorney is reserved t o those who has: 3


1. obtained the necessary degree in the study of law; 2. successfully taken the bar exams; 3. admitted to the IBP; 4. remain members thereof in good standing; 5 . been authorized to practice law in the Philippines. Membership in the bar is i n the category of a mandate of public service of the highest order. Lawyers are oath-bound servants of society whose conduct are clearly circumscribed by the in flexible norms of law and ethics. Primary duty is to the advancement of the ques t of truth and justice. proper to assume and discharge the responsibilities of an attorney. 5. Has the p rivilege to set the judicial machinery in motion. He can stand up for his right or the right of his client even in the face of a hostile court. He has the right to protest, in respectful language, any unwarranted treatment of a witness or a ny unjustified delay. The rights and privileges which they enjoy as officers of the court are necessary for the proper administration of justice as for the prot ection of attorney and his client. There can be no strong bar without courageous and fearless attorneys. As a man of law, his is necessarily a leader in the commu nity, looked up to as a model citizen. Integrity, ability, and learning often ma kes him qualified to administer the Executive Departments or the Legislative bod ies.

Privileges of an attorney 1. Privilege and right to practice law during good beh avior before any judicial, quasi-judicial, or administrative tribunal. 2. Attorn eys enjoy the presumption of regularity in the discharge of his duty. (His state ments, if relevant or material to the case, are absolutely privileged regardless of their defamatory tenor. He can speak freely and courageously in proceedings without the risk of criminal prosecution.) 3. Other privileges inherent in his s tatus as quasi-judicial officer: a. Passing the bar is equivalent to First-grade Civil Service eligibility for any position in the classified service of the gov ernment, the duties of which require knowledge of law. b. Second-grade eligibili ty for any other government position not requiring proficiency in the law. 4. Th e court, in admitting him to practice, presents him to the public as worthy of i ts confidence and as a person fit and ralc2011 Duties of Attorneys (Rule 138, Sec 20) MEMORIZE! It is the duty of an attorney: 1. To maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines; 2. To observe and maintain th e respect due to the courts of justice and judicial officers; 3. To counsel or m aintain such actions or proceedings only as appear to him to be just, and such d efenses only as he believes to be honestly debatable under the law; 4. To employ , for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or 4

LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo 5. 6. 7. 8. 9. any judicial officer by an artifice or false statement of fact or law; To mainta in inviolate the confidence, and at every peril to himself, to preserve the secr ets of his client, and to accept no compensation in connection with his client s business except from him or with his knowledge and approval; To abstain from al l offensive personality and to advance no fact prejudicial to the honor or reput ation of a party or witness, unless required by the justice of the cause with wh ich he is charged; Not to encourage either the commencement or the continuance o f an action or proceeding, or delay any man s cause, from any corrupt motive or interest; Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed; In the defense of a person accused of crime, by all fair and honorable means, regardless of his personal opinion as to the guil t 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. DUTIES OF A LAWYER truthfulness, avoid encroachment in the business of other lawyers, uphold the ho nor of the profession. 3. Duties to the COURT respect or defend against criticis ms, uphold authority and dignity, obey order and processes, assist in the admini stration of justice. 4. Duties to the CLIENT entire devotion to clients interest. Public versus private and personal duties PUBLIC DUTY: o Obey the law. o Aid in the administration of justice. o Cooperate whenever justice is imperiled. PRIVA TE DUTY: o Faithfully, honestly, and conscientiously represent the interest of h is client. PERSONAL DUTY, the obligation he owes to himself. Such classification of public and personal results from the three-fold capacity in which attorneys operate: o As a Faithful Assistant of the court in search of just solution to di sputes (Public Duty). o As a Trusted Agent of his client (Private Duty). o As a Self-employed Businessman (Personal Duty). Rules and ethics demand that an attor ney subordinate his personal and private duties to those which he owes to the co urt and to the public. Where his duties to his client conflict with those he owe s to the court and the public, the former must yield to the latter. His obligati ons to his client take precedence over his duties to himself. 5 FOUR-FOLD 1. Duties to SOCIETY should not violate his responsibility to society, exemplar for righteousness, ready to render legal aid, foster social reforms, guardian of due process, aware of special role in the solution of special problems and be a lways ready to lend assistance in the study and solution of social problems. 2. Duties to the LEGAL PROFESSION candor, fairness, courtesy and ralc2011

LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo Practice of law as a profession The practice of law is a profession, a form of p ublic trust, the performance of which is entrusted only to those who are qualifi ed to possess good moral character. The legal profession is not a trade. To rend er public service and secure justice to those who seek its aid. It is not a busi ness, using bargain counter methods to reap large profits. The gaining of liveli hood is not a profession, but a secondary consideration. The Code of Professiona l Responsibility, particularly the ethical rule against advertising or solicitat ion of professional employment, rests on the fundamental postulate that the prac tice of law is a profession. Profession A calling requiring specialized knowledg e and often requiring long academic preparation. In fixing fees, remember that th e profession is a branch of the administration of justice and not a mere money-m aking trade. Law advocacy is not capital that yields profits. A calling, unlike m ercantile pursuits which enjoy a greater deal of freedom from government interfe rence, is impressed with public interest. Attorney is also entitled to protectio n from the court against any attempt by his client to escape payment of his just fees. Client is also protected against exaction by his counsel of excessive fee s. Primary Characteristics distinguishing the Legal Profession from Business: 1. A duty of public service, emolument is a by-product.

2. A relation as officer of the court to the administration of justice involving thorough sincerity, integrity, and reliability. 3. Relation to the client in th e highest degree fiduciary. 4. Relation to colleagues at the bar characterized b y candor, fairness, and unwillingness to resort to current business methods of a dvertising and encroachment on their practice, or dealing with their clients. Th ese characteristics make it a noble profession and the privilege to practice it is bestowed only upon individuals who are competent intellectually, academically , and morally. A partnership in the practice of law is a mere relationship or as sociation for such particular purpose. It is not a legal entity. It is not a par tnership formed for the purpose of carrying on a trade or business or of holding property. Even if registered with the SEC, any lawyer practicing under a law pa rtnership is considered a solo practitioner who is the taxpayer and not the law partnership. Law prohibits a business or commercial partnership or juridical ent ity to engage in the practice of law since such cannot possess nor comply with t he qualifications and requirements of a lawyer. Necessity of representation by counsel Employment of a person acquainted with th e rules becomes a necessity both to the litigant and to the court. Litigant is n ot ordinarily versed in the law and its intricacies. A court can adjudicate only in accordance with the law and the facts presented pursuant to well-established rules of procedure and evidence. 6 ralc2011


A person unlearned in the law can neither aid litigants nor the court in that re gard. Only a lawyer can properly and effectively extend such assistance. The law profession came into being as a result of that procedural development of the co urt, which created the necessity for the attorney and made him an essential part of the judicial machinery. The right of a litigant to counsel is a recognition of the necessity that a litigant appear by counsel. There can be no fair hearing unless a litigant is represented by counsel. A court cannot compel a litigant t o prosecute or defend his cause personally if he chose to appear by counsel, nor can it assign a counsel de oficio for an accused and require said counsel to pr oceed with the trial when the accused has previously manifested his desire to se cure the services of a counsel de parte. SC subjects the lawyer to disciplinary action and administrative liability for his failure to properly attend to the in terest of his client.

In custodial investigations, any person under such for the commission of an offe nse shall have the right to be informed of his right to remain silent and to hav e competent and independent counsel preferably of his choice and any confession in violation of such shall be inadmissible in evidence against him. Need for, and right to, counsel Party litigant needs the assistance of counsel i n al proceedings, administrative, civil, or criminal. Not being a lawyer, he is ignorant of the substantive and procedural laws which are applied to resolve dis putes. Even if he is a lawyer, his personal or emotional involvement may adverse ly affect his handling of the case. Thus, even lawyers who are parties in a case need the guiding hand of counsel. The need of a person for the assistance of co unsel is felt more urgently in criminal than in any other proceeding. ralc2011 Consequences of denial of right to counsel The denial of such right, which may e ither be the absence of assistance of counsel or the inadequate and grossly negl igent representation may have adverse results. 1. Admission of guilt without cou nsel, inadmissible in evidence. 2. Representation of a person claiming to be a l awyer, conviction shall be set aside and a new trial undertaken. 3. Judgment of conviction even if final and executor may still be recalled. 4. Gross ignorance of law and procedure by counsel gives the accused another chance to present his evidence. 5. Litigation may be reopened if the incompetence, ignorance, or inexp erience of counsel is so great and error committed is so serious that the client is prejudiced and denied his day in court. When appearance by counsel not oblig atory In the Municipal Trial Court, a party may conduct his litigation in person or with the aid of an agent or friend appointed by him or with an aid of an att orney. 7


In Regional Trial Court and Appellate Courts, a party to a civil suit may either conduct his litigation personally or by attorney unless the party is a juridica l person. In Administrative Proceedings, right to counsel is not indispensable t o due process. If a respondent had chosen to represent himself without counsel c annot later claim denial of due process. Nothing in the Constitution that says t hat a party in a non-criminal proceeding is entitled to be represented by counse l. The rule applies only in Civil and Administrative cases. It does not apply in cases involving grave and less grave offenses where the accused must be represe nted by counsel and such right is not waivable.

Canons of professional responsibility A lawyer is answerable not only to his cli ent but also to the court of which he is an officer. He should do nothing which may tend to lessen the public confidence in the fidelity, honesty, and integrity of the legal profession. Professional standards serve as the lawyers chart and c ompass to resolve difficult questions of duty and help minimize ethical delinque ncies. In 1917, the Philippine Bar Association, realizing that something more th an the Oath and Duties of a Lawyer was needed to attain the full measure of publ ic respect, adopted as its own Canons 1 to 32 of the Canons of Profession Ethics of the American Bar Association. In 1946, it again adopted as its own, Canons 3 3 to 47. Their enforcement by the courts and observance by lawyers is indicative of a ralc2011 due appreciation of their responsibilities to the courts, to the clients, to the bar, and to the public Supreme Court applied some of the Canons in case of prof essional misconduct. The Integrated Bar of the Philippines adopted in 1980 a pro posed Code of Professional Responsibility submitted to the Supreme Court for app roval. In 1988, the Supreme Court promulgated the Code of Professional Responsib ility. The Code consists of 22 Canons and 77 Rules, divided into 4 Chapters: 1. The Law and Society. 2. The Lawyer and the Legal Profession. 3. The Lawyer and t he Courts. 4. The Lawyer and the Clients. The Code establishes the norms of cond uct and ethical standards for all lawyers. Failure to live up to any of its prov isions is ground for disciplinary action. Faithful observance requires a thoroug h understanding of the Code. 8

LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo CHAPTER 2 ADMISSION TO PRACTICE A. JUDICIAL CONTROL Admission to practice is a judicial function The power to ad mit applicants to the practice of law is judicial in nature and involves the exe rcise of judicial discretion. Traditionally exercised by the Supreme Court as an inherent part of its judicial power. Rationale comes from the nature of a judic ial function and the role played by attorneys in the administration of justice. The admission to the practice of law requires: 1. Previously established Rules a nd Principles. (By Constitutional mandate, a primary responsibility of the Supre me Court) 2. Concrete Facts, past or present, affecting determinate individuals. (Brought about by the applicant for admission to the bar) 3. A Decision as to w hether the facts are governed by rules and principles. (Involves judicial adjudi cation which essentially a function of the court) To enable the court to properl y discharge its responsibility for the efficient and impartial administration an d to elevate and maintain the standard of the legal profession requires that it must have the primary duty to decide: A. Who may be admitted to the bar as one o f its officers. B. What are the causes for disciplinary action against him. C. Whether he should be disciplined, suspended, disbarred, or reinstated. Any legislative or executi ve judgment substituting that of the Supreme Court in the admission to the pract ice of law or suspension, debarment, reinstatement infringes upon and constitute s as an invalid exercise of the legislative or executive power.

Legislative power to repeal, alter, or supplement The 1935 and 1973 Constitution s provide that the Supreme Court shall have the power to promulgate rules concer ning the admission to the practice of law but may be repealed, altered, or suppl emented by the Batasang Pambansa. The 1987 Constitution deleted such provision. The legislature may, however, enact laws with respect to the first requisite for the admission to the bar (Previously established Rules and Principles) that app licants should observe. A. The legislature may pass a law for additional qualifi cations for candidates for admission to the practice or filling up deficiencies in the requirements for admission to the bar. B. Such law may not, however, be g iven retroactive effect so as to entitle a person, not otherwise qualified, to b e admitted. C. Such law will not preclude the Supreme Court from fixing other qu alifications and requirements. Reason: Legislature has no power to grant a layma n the privilege to practice law nor control the Supreme Court in its 9 ralc2011

LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo responsibility to decide who may be admitted. The Legislature, in the exercise o f its POLICE POWER may, however, enact laws regulating the practice of law to pr otect the public and promote the public welfare. 1. A law declaring illegal and punishable the unauthorized practice of law. 2. Require further examination for any attorney desiring to practice before any quasi-judicial or administrative ag ency. Whatever law may be passes is merely in aid of the judicial power to regul ate. But the legislature MAY NOT pass a law that will control the Supreme Court in the performance of its function to decide who may enjoy the privilege of prac ticing law and any law of that kind is unconstitutional as an invalid exercise o f legislative power. RA 972 (the Bar Flunkers Act) aims to admit to the Bar, tho se candidates who suffered from insufficiency of reading materials and inadequat e preparation. By its declared objective, the law is contrary to public interest because it qualifies 1,094 law graduates who confessedly had inadequate prepara tion for the practice of the profession, as was exactly found by this Tribunal i n the aforesaid examinations. An adequate legal preparation is one of the vital requisites for the practice of law that should be developed constantly and maint ained firmly.

A treaty, cannot be so interpreted as to entitle a holder of a law degree obtain ed in another country to practice law in this country without complying with the requirements of existing law. Accordingly, a Filipino citizen who obtained a la w degree in another country is not entitled to be admitted to the Philippine Bar without complying with the requirements.

Prescribing standards for law schools CHED acts as an agency or in aid of the Su preme Court in the exercise of its primary authority to determine who may be adm itted to practice since such authority is by Constitutional mandate and rests an d remains exclusively with the high tribunal. CHED merely: 1. Exercises regulato ry power over law schools or certifies as to the satisfactory completion of the prescribed courses of law study by an applicant for admission to the bar examina tion. 2. Assumes some responsibility for the quality of instruction and training required of an applicant for membership in the bar. Supreme Court incidental po wers (Incidental to its primary authority to decide who may be admitted to the b ar): 1. Fixing minimum standards of instruction for all law schools to observe. 2. Setting up of the necessary administrative machinery to determine compliance therewith. 3. By way of sanction, refusal to admit to the bar exams law graduate s from schools failing to meet those standards. May be 10 Executive power in relation to practice The Chief Executive cannot, by executive order, admit a person to the practice of law nor can he, by treaty with another country, modify the rules on the admission to the bar. ralc2011

LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo implemented accreditation. through B. WHAT CONSTITUTES PRACTICE OF LAW Practice of Law, generally General principle s and doctrines laid down by the courts explaining the meaning and scope of the term: 1. To engage in the practice of law is to do any of those acts which are c haracteristic of the legal profession. 2. Any activity in or out of court which requires the application of law, legal principle, practice or procedure and call s for legal knowledge, training and experience. (Cayetano vs Monsod) 3. It is no t limited to the conduct of cases in court. 4. Includes legal advice, counseling , and the preparation of legal instruments and contracts by which legal rights a re secured, which may or may not be pending in court. 5. Strictly speaking, the word practice of law implies the customary or habitual holding out of oneself to the public as a lawyer and demanding compensation for his services. [People vs. Villanueva 14 SCRA 111] Three Principal Types of Professional Activities: 1. Le gal advice and instructions to the clients to inform them of their rights and ob ligations. 2. Preparation for clients of documents requiring knowledge of legal principles not possessed by ordinary layman. 3. Appearance for clients before public tribunals. When a person participates in a trial and advertises elf as a lawyer, he is in the practice of law. Giving advice for compensation re garding the legal status and rights of another constitutes practice of law. One who renders an opinion as to the proper interpretation of a statute and receives pay for it, is to that extent, practicing law. Engaging in the practice of law presupposes the existence of a lawyerclient relationship. Where a lawyer underta kes an activity without any such relationship, such as teaching law or writing l aw books or legal articles cannot be said to be engaged in the practice of his p rofession as a lawyer. hims

Characteristics of term Practice of Law The phrase practice of law implies customari ly or habitually holding oneself out to the public, as a lawyer, for compensatio n as a source of livelihood or in consideration of his service. Holding oneself out may be shown by acts indicative of that purpose. Thus, a layman is illegally engaged in the practice when he sends a circular announcing the establishment o f a law office for the general practice of law, or when the takes the oath of of fice as a lawyer before a notary public and files a manifestation with the Supre me Court informing his intention to practice law. ralc2011 11


Private practice consists of frequent and customary actions, more than an isolat ed appearance. It contemplates succession of acts of the same nature habitually and customarily holding oneself out to the public as a lawyer. Isolated Appearan ce: A. A judge who is prohibited from engaging in private practice of law has no t violated this prohibition when he appeared as counsel for his cousin pro bono in a criminal case. B. Appearance as counsel in one occasion is not conclusive a s determinative of engagement in the practice of law. C. Appearance of a city at torney as private prosecutor not within the prohibition. (People vs. Villanueva) An isolated appearance may, however, amount to practice: 1. Legislator cannot a ppear as counsel before any court of justice or Electoral Tribunals, or quasi-ju dicial and administrative bodies even in a single instance. 2. A laymans represen tation as defense counsel in a criminal case is invalid and the conviction of th e accused may be set aside, as violative of due process. 3. Preparation and filing of a pleading, motion, memorandum, or brief. 4. Examin ation of witnesses and presentation of evidence. 5. Management and control of th e proceedings in court. Representation before other agencies Appearances before any quasi-judicial, administrative, or legislative agency constituting practice of law: 1. Interpretation and application of laws. 2. Presentation of evidence t o establish certain facts. 3. Representing an applicant for registration of trad emark, trade name, or service mark in the Philippine Patent Office. 4. Advocatin g or resisting claims before the NLRC, BoC, or BIR. 5. Representing before a leg islative body regarding a proposed legislation or ordinance. Character of the se rvice and not the place where it is performed is the decisive factor determinati ve of whether the service constitutes practice of law. Service to prepare and pr osecute a just claim before a quasi-judicial or administrative body same and leg itimate as the service rendered in court in arguing a cause.

Representation before the court Practice of law, as customarily understood, mean s: 1. Rendering of services to a person, natural or juridical, in court on any m atter through various stages and in accordance with rules of procedure. 2. Appea rance before the court. ralc2011 Activity outside of court Practice of law also consists of work performed outsid e of court: o Giving legal advice on large variety of subjects. o Conveyancing a nd preparation and execution of legal instruments covering an extensive field of business and trust and other affairs. 12


No valid distinction can be drawn between part of the work involving appearance in court and that part involving advice and drafting of instruments in his offic e. Practice of law need not be habitual services in litigations in court. A pers ons past work experiences as lawyer-economist, lawyer-manager, lawyer-entrepreneu r of industry, lawyer-negotiator of contracts, and lawyer-legislator more than s atisfy the constitutional requirement for appointment as Chairman of the COMELEC that he has been engaged in the active practice of law for at least ten years. (Cayetano v Monsod)

Any person who has been duly licensed as a member of the bar in accordance with the statutory requirements and who is in good and regular standing is entitled t o practice law. Two basic statutory requirements: 1. Must have been admitted to the bar. 2. After admission, must remain in good and regular standing (a continu ing requirement). Must have been admitted to the bar. A lawyer is one who: 1. Pa ssed the bar exams. 2. Taken the lawyers oath before the Supreme Court en banc. 3 . Signed in the roll of attorneys. 4. Received a certificate of license to pract ice law from the Clerk of Court of the Supreme Court. 5. Furnished satisfactory proof or educational, moral, and other qualifications. After Admission he or she must: 1. Remain an IBP member in good standing by regularly paying IBP dues and other lawful assessments. 2. Pay annual privilege tax. 3. Faithfully observe th e rules and ethics of the legal profession. 4. Be continually subjected to judic ial disciplinary control. Compulsory membership to the IBP is not violative of a lawyers freedom of association. Integration does not make a lawyer a member of a ny group of which he is already a member. He became a member of the bar when he passed the Bar Examinations. Bar integration does not compel the lawyer to assoc iate with anyone. He is free to attend or not attend the meetings of his Integra ted Bar Chapter or vote or 13

ESSENTIAL CRITERIA DETERMINATIVE OF ENGAGING IN THE PRACTICE OF LAW: (HACA) 1. H abituality- 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 p ublic for compensation, as a source of his livelihood or in consideration of his said services. 3. Application of law, legal principle, practice, or procedure w hich calls for legal knowledge, training and experience. 4. Attorney-client rela tionship. C. WHO MAY PRACTICE LAW Persons entitled generally ralc2011

to practice

law,

LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo refuse to vote in its elections as he chooses. The only compulsion to which he i s subjected is the payment of annual dues. The Supreme Court, in order to furthe r the States legitimate interest in elevating the quality of professional legal s ervices, may require that the cost of improving the profession in this fashion b e shared by the subjects and beneficiaries of the regulatory program the lawyers [In re: Edillon A.M. 1928] The rigid requirements and conditions are designed t o admit to its ranks only those who are adequately prepared, mentally and morall y, to discharge the duties of an attorney. The purpose, in the final analysis, i s to protect the public, the court, the client, and the bar from incompetence an d dishonesty of those who are unfit to become members. Only those who are compet ent, honorable, and reliable may practice law.

The attorneys continued enjoyment of the privilege conferred depends upon his com plying with the ethics and rules of the profession. But practice of law is in th e nature of a right. While the practice of law is a privilege, a lawyer cannot b e prevented from practicing law except for valid reasons, the practice of law no t being a matter of states grace or favor. He holds office during good behavior a nd can only be deprived of it for misconduct. The state cannot exclude an attorn ey from the practice of law in a manner or for reasons that contravene the due p rocess or equal protection clause of the Constitution. A quasi-judicial or admin istrative agency cannot restrict a lawyers privilege to practice law by imposing conditions that amount to discrimination nor limit such privilege by requiring t he passing of an examination not sanctioned by law as a prerequisite to appearin g before such agency. In that sense, the practice of law is in the nature of a r ight which cannot be lightly or capriciously taken away from him.

Right and Privilege to practice The practice of law is not a natural, property o r constitutional right but a mere privilege. It is not a right granted to anyone who demands it but a privilege to be extended or withheld in the exercise of so und judicial discretion. It is in the nature of a franchise conferred only for m erit which must be earned by hard study, learning and good conduct. It is a priv ilege 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.

Practice without examination Exceptions to the privilege afforded to Filipino ci tizens who have passed the bar exams to practice law: A. Citizens of the United States who: 1. Before July 4, 1946, were duly licensed members* of the Philippin e Bar. 2. In active practice in the courts of the Philippines. 14

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LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo 3. In good and regular standing as such. 4. Took the oath of office. *Pursuant t o the comity clause of the then Rules of Examination of Candidates for Admission to the Practice of Law in the US during the American Regime. B. Filipino citize ns*, in the discretion of the Court may be admitted without examination, who: 1. Are applicants for admission and are enrolled attorneys in good standing in the Supreme Court of the United States or in any circuit court of Appeals or distri ct court therein, or in the highest court of any State or Territory of the Unite d States. 2. Can show certificates that they have practiced before July 4, 1946. 3. Have never been suspended or disbarred. *Rule 138, Sec. 4, Rules of Court. P ractice without admission General Rule: Only those who are licensed to practice law can appear and handle cases in court. Exceptions: 1. Before the MTC - a part y may conduct his case or litigation in person with the aid of an agent or frien d appointed by him. [Sec. 34, Rule 138] 2. Before any other court a party may co nduct his litigation personally. [Sec. 34, Rule 138]. He is bound by the same ru les in conducting the trial of his case. He cannot, after judgment, claim that h e 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 residen t of that province, of good repute for probity and ability to represent the accu sed 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, crimina l 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 m ember of the IBP duly accredited by the law school. [Sec. 2] 5. Under the Labor Code nonlawyers may appear before the NLRC or any Labor Arbiter if they (a) repr esent themselves; (b)represent their organization or members thereof [Art. 222, PD 442] 6. A non-lawyer or layman may represent a claimant before the Cadastral Court [Sec. 9, Act. No. 2259] 7. Any official or other person appointed to appea r for the Government of the Philippines in accordance with law shall have all th e rights of a duly authorized member of the bar in any case in which said govern ment has an interest [Sec. 33, Rule 138]. 15 ralc2011


Three Limitations in the appearance of a layman on behalf of another: 1. Layman should confine his work to non-adversary contentions. Should not undertake purel y legal work such as examination of witnesses or presentation of evidence. 2. Se rvices should not be habitually rendered. 3. Should not charge or collect attorn eys fees.

Right of party to represent himself In Civil Cases, individual litigant has the right to conduct his litigation personally. He will still be bound by the same r ules of procedure and evidence as those applicable to a party appearing through counsel. He may not be heard to complain later that he has been deprived of the right to the assistance of counsel. In Criminal Cases involving grave and less g rave offenses, an accused who is a layman must always appear by counsel. He cann ot conduct his own defense, as his right to counsel may not be waived without vi olating his right to due process of law. By a Juridical Person: General Rule:Iit must always appear in court by a duly licensed member of the bar. Exception: In the MTC, it may be represented by its agent or officer who need not be a lawyer . 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. ralc2011 But it cannot practice law directly or indirectly by employing a lawyer to pract ice for it or to appear for others for its benefit. Reasons: 1. Nature of the pr ivilege and on the confidential and trust relation between attorney and client. 2. The corporation (a juridical person) cannot perform the conditions required f or membership in the bar, such as the possession of good moral character and oth er special disqualifications, the taking of an oath and becoming an officer of t he court, subject to its discipline, suspension or removal. 3. The relation of t rust 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 obnoxi ous to the law. Persons authorized to represent the government Any official or other person appo inted or designated in accordance with law to appear for the government of the P hilippines or any of its officials shall have all the rights of a duly authorize d member of the bar to appear in any case in which the government has an interes t, direct or indirect, or in which such official is charged in his official capa city. [Sec. 33, Rule 138]. Solicitor General, Assistant Solicitor General, Solic itors and Trial Attorneys, 16

LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo State Prosecutors, Special Counsel, Special Prosecutor of the Ombudsman. Three I nstances when a lawyer cannot practice: 1. Appearance of Parties in Person. In a ll katarungang pambarangay proceedings, the parties must appear in person withou t the assistance of counsel or representative, except for minors and incompetent s who may be assisted by their next-of-kin who are not lawyers. (SEC. 415. Local Government Code) 2. Appearance through a representative must be for a valid cau se. the representative of an individual-party must not be a lawyer, and must be related to or next-of-skin of the individualparty. juridical entities shall not be represented by a lawyer in any capacity. (A. M. No. 08-8-7-SC, RULE OF PROCED URE FOR SMALL CLAIMS CASES) 3. A lawyer shall not, after leaving government serv ice, accept engagement or employment in connection with any matter in which he h ad intervened while in said service. (Rule 6.03, CANON 6) Disability of Public O fficials to practice Appointment or Election to a government office disqualifies one to practice law. 1. Public office is a Public Trust. Obliged to perform dut ies with exclusive fidelity. 2. Avoid conflict of interests. 3. Assure the peopl e of impartiality in the performance of public functions, thereby promote the pu blic welfare. ralc2011

When any of the public officials are absolutely prohibited, they cease, as a gen eral rule, to engage in private practice of law and the right to practice is sus pended during tenure of office. Lawyer member of the Legislature not absolutely prohibited. Prohibited only from appearing as counsel in: 1. Any court of justic e. 2. Electoral Tribunals. 3. Quasi-Judicial or Administrative bodies. What is p rohibited is to personally appear. The word appearance includes: 1. Arguing a case b efore any such body. 2. Filing a pleading on behalf of a client as by simply fili ng a formal motion, plea or answer . Neither can he allow his name to appear in su ch pleading by itself or as part of a firm name under the signature of another q ualified lawyer because the signature of an agent amounts to signing of a non-qu alified senator or congressman, the office of an attorney being originally of ag ency, 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 .

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 gov ernment unit or any 17


office, agency or instrumentality of the government is the adverse party; 2. App ear as counsel in any criminal case wherein an officer or employee of the nation al or local government is accused of an offense committed in relation to his off ice; 3. Collect any fee for their appearance in administrative proceedings invol ving 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 membe r concerned is defending the interest of the government However, Sanggunian memb ers may practice their professions, engage in any occupation, teach in schools e xcept during session hours. 9. Those prohibited by special laws retired members of the judiciary. A Civil Se rvice Officer can engage in the practice of law only if: 1. The officers responsi bilities do not require his time to be fully at the disposal of the government. 2. With written permission from the head of the department concerned. A punong b arangay needs to obtain written permission from the Secretary of the DILG to app ear as counsel.

WHO MAY NOT PRACTICE LAW? Relative Prohibition 1. Senators and members of the Ho use of Representatives (prohibition to appear) 2. Members of the Sanggunian. Abs olute Prohibition 1. All members of the Judiciary 2. Judges and other officials as employees of the Supreme Court. 3. Government prosecutors. 4. President, Vice President, members of the cabinet. 5. Members of Constitutional Commissions. 6. Ombudsman and his deputies. 7. Solicitor General and Assistant Solicitor Genera l 8. All governors, city and municipal mayors. Liability for unauthorized practice Any person prohibited from engaging in the p ractice of law or assumes to be an attorney is liable for contempt of court, pun ishable by fine or imprisonment or both. Liable for Estafa, defrauds the litigan t: 1. If such unauthorized practice causes damage to a party. 2. False represent ation and rendering service in court in behalf of litigant. Criminal and Adminis trative Liability for government officials prohibited from practicing law when d oing such. Remedies against unauthorized practice 1. Injunction. 2. Declaratory Relief. 3. Contempt of Court. 4. Petition for Disqualification. 5. Complaint for Disbarment . 6. Administrative complaint for public officer. 7. Criminal complaint for Esta fa ralc2011 18

LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo D. QUALIFICATIONS FOR ADMISSION REQUIREMENTS FOR ADMISSION TO THE BAR: 1. Citize n of the Philippines. 2. Resident of the Philippines 3. At least 21 years old 4. Successfully completed all prescribed courses. 5. Passed the bar exams. 6. Prod uction before the Supreme Court satisfactory evidence of: a. Good moral characte r b. No charges against him, involving moral turpitude, have been filed or are p ending in any court in the Philippines. Citizenship and Residence Privilege deni ed to foreigners. Takes into account the close connection of the practice of law with the administration of justice. An alien cannot well maintain allegiance to the Republic of the Philippines, which is required in the Oath of a Lawyer. Goo d Moral Character Continued possession of good moral character after admission i s a requirement for enjoyment of privilege to practice. Moral character is what a person really is as distinguished from good reputation or opinion generally en tertained of him. Includes at least common honesty. Opposite of immorality, whic h is the indifference to the moral norms of society. This requirement aims to ma intain and uphold the high moral standard and the dignity of the legal professio n. Educational qualifications

Public Policy demands that a person seeking admission to the practice of law mus t 1. Possess the required educational qualifications. 2. Show a degree of learni ng and proficiency in law necessary for the due performance of the duties of a l awyer. To the lawyer is entrusted the protection of life, liberty, property, or honor. To approve officially one who is not adequately prepared to such a delica te task is to create a social danger. Bar Examination Subjects chosen for these exams are designed to eliminate any on e whose general intelligence, learning, and mental capacity are inadequate to en able him to assume and discharge the duties of an attorney. Passing Grade: A gen eral average of 75% in all subjects without falling below 50% in any subject. In determining the average, the subjects given the following relative weights: 1. Civil Law 15% 2. Labor and Social Legislation 10% 3. Mercantile Law 15% 4. Crimi nal Law 10% 5. Political and International Law 15% 6. Taxation 10% 7. Remedial L aw 20% 8. Legal Ethics and Practical Exercises 5% A candidate who fails for thre e times is disqualified from taking another examination, unless he has shown to the satisfaction of the Court that he has: 19 ralc2011

LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo 1. Enrolled and passed regular fourth year review classes; 2. Attended a pre-bar review course. E. PROCEDURE FOR ADMISSION Bar Examination Committee Examination s shall be conducted by a committee of bar examiners to be appointed by the Supr eme Court. This committee shall be composed of: 1. A Justice of the Supreme Cour t, as chairman and designated by the court to serve for one year. 2. Eight (8) m embers of the Philippine bar, who shall serve as examiners in the 8 bar subjects and hold office for a period of one year. 3. Bar Confidant as liaison officer b etween the Court and Chairman and the Committee members. Also a deputy clerk of court. Application and supporting documents Time for filing proof of qualificati ons. All applicants for admission shall file with the clerk of the Supreme Court a duly accomplished application form together with supporting documents concerni ng his qualifications at least 15 days before the beginning of the examination. Applicants shall also file at the same time their own affidavits as to their age , residence, and citizenship. (Rule 138, Sec. 7) Notice of applications.Notice of applications for admission shall be published by the clerk of the Supreme Court in newspapers published in Pilipino, English and Spanish, for at least 10 days before the beginning of the examination. (Rule 138, sec. 8)

American lawyers in active practice of law in the Philippines before July 4, 194 6 or a Filipino citizen enrolled as attorney in the United States before July 4, 1946, who desires admission without examination should: 1. File a petition with the Court along with his 2. License to practice 3. Evidence that it has not bee n revoked 4. Certificates of professional standing. Disclosure of involvement in any criminal case Applicant must show that no charg es against him involving moral turpitude have been filed or pending in court in the Philippines (Rule 138, Sec 2, Rules of Court) To enable the court to resolve whether a particular crime involves moral turpitude, applicant must disclose an y crime of which he has been charged. If what has been concealed does not involv e moral turpitude, it is the fact of concealment and not the commission of the c rime itself that makes him morally unfit. Burden of proof to show qualifications Applicant assumes the burden of proof to establish his qualifications to the sa tisfaction of the court. After having presented prima facie evidence of his qual ifications, any one objecting to his admission may offer contrary evidence to ov ercome such prima facie showing. Burden of proof shifts to the complainant. Writ ten examinations Annual examination. 20 ralc2011

LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo o Examinations for admission to the bar of the Philippines shall take place annu ally in the City of Manila. o They shall be held in four days to be designated b y the chairman of the committee on bar examiners. o The subjects shall be distri buted as follows: 1. 1st day: Political and International Law (morning), Labor a nd Social Legislation (afternoon); 2. 2nd day: Civil Law (morning),Taxation (aft ernoon); 3. 3rd day: Mercantile Law (morning) Criminal Law (afternoon); 4. 4th d ay: Remedial Law (morning) Legal Ethics and Practical Exercises (afternoon). (Ru le 138, sec. 11.) The questions shall be the same for all examinees. Examinees s hall answer the questions personally without help from anyone. Upon verified app lication made by an examinee stating that his penmanship is so poor that it will be difficult to read his answers without much loss of time, the Supreme Court m ay allow such examinee to use a noiseless typewriter. 4. To keep the examinees identity a secret and thus avoid any influence to bear u pon the examiner in the valuation of his answers: a. The exam papers shall be id entified by numbers. b. The name of the examinee is written in a piece of paper and sealed in an envelope. 5. Any candidate who violates any of the rules concer ning the conduct of examination will be barred from taking such and the same wil l be counted as a failure against him. The conduct of the bar exams involves pub lic interest. Any charge of anomaly requires prompt action from the Court to pre vent erosion of public faith in the bar and in the court. Correction and revaluation of grades The bar examiners correct the examination p apers and submit the grades and corrected papers to the bar confidant. The bar c onfidant tallies the individual grades of every examinee, computes the general a verage, and prepares a comparative data showing the percentage of passing and fa iling in relation to a certain average. Results are submitted to the Examination Committee and to the Court. Any request for revaluation of the answers and the grades given should be made by the examinee addressed to the Court. Restrictions to insure integrity in examination 1. An examinee is prohibited fro m bringing papers, books or notes into the examination room. 2. He is not to com municate with the other examinees during the exam. 3. He is not to influence any member of the committee on bar exams. ralc2011 Administration of Oath 21


Qualified applicants shall take and subscribe to the Oath of Office as a Lawyer. A prerequisite to the admission of practice of law and may only be taken before the Supreme Court. The court may deny the petition to take the lawyers oath for: o Grave misconduct; o Pending complaint against the applicant weigh his actions according to the sworn promises he makes when taking the lawye rs oath. If all lawyers conducted themselves strictly according to the lawyers oat h and the Code of Professional responsibility, the administration of justice wil l undoubtedly fairer, faster and easier for everyone concerned. (In Re: Argosino , 270 SCRA 26) By taking the lawyers oath, a lawyer becomes the guardian of truth and the rule of law and an indispensable instrument in the fair and impartial a dministration of justice. Good moral character includes at least common honesty. Deception and other fraudulent acts are not merely unacceptable practices that are disgraceful and dishonorable, they reveal a basic moral flaw. (Olbes vs. Dec iembre, 457 SCRA 341) LAWYERS OATH (MEMORIZE!!) I _____ , do solemnly swear that I will maintain allegi ance to the Republic of the Philippines; I will support and defend its Constitut ion and obey the laws as well as the legal orders of the duly constituted author ities therein; I will do no falsehood nor consent to its commission; 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 not delay any mans cause for money or m alice and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the court as to my clients; and I will impose upon myself this obligation voluntarily, without any mental reser vation or purpose of evasion. So help me God. The lawyers oath is not a mere cere mony or formality for practicing law. Every lawyer should at all times Issuance of Certificate After taking oath, the Supreme Court admits him as a mem ber of the bar for all courts of the Philippines. An order be entered that a cer tificate of such record be given him by the clerk of court. Such certificate is his license to practice law. Thereafter, he signs the roll of attorneys, which i s the official record containing the names and signatures of those who are autho rized to practice law. Payment of IBP dues and privilege tax Membership by every attorney in the IBP is compulsory. Obligation to support it financially. o Ever y member of the Integrated Bar shall pay such annual dues as the Board of Govern ors shall 22 ralc2011

LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo determine with the approval of the Supreme Court. o Default in payment for 6 mon ths shall warrant suspension. o Default in such payment for 1 year shall be a gr ound for removal of the name of the delinquent member from the Roll of Attorneys . o However, no action involving suspension or removal from the roll shall be ef fective without final approval of the Supreme Court. Conditions sine qua non to the privilege to practice law and to the retention of his name in the roll of at torneys : 1. Continued membership 2. Regularly paying membership dues and other lawful assessments that it may levy. A lawyer must comply with the requirement r egarding payment of membership even though his practice is limited. The exemption from payment of individual income taxes for senior citizens does not include pay ment of IBP membership dues.

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LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo CHAPTER 3 LAWYERS DUTIES TO SOCIETY MEMORY AID FOR CANONS UNDER THIS SECTION: 1. Promote and Respect the Law and Leg al Process (Canon 1) 2. Provide Efficient and Convenient Legal Services (Canon 2 ) 3. Information on Legal Services that is true, Honest, Fair and Dignified (Can on 3) 4. Support for Legal Reforms and Administration of Justice (Canon 4) 5. Pa rticipate in Legal Education Program (Canon 5) 6. Applies to Lawyers in Governme nt Service (Canon 6) CANON 1: A lawyer shall uphold the constitution, obey the l aws of the land and promote respect for law and legal process. Rule 1.01. A lawy er shall not engage in unlawful, dishonest, immoral or deceitful conduct. Rule 1 .02. A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal profession. Rule 1.03. A lawyer shall no t, for any corrupt motive or interest, encourage any suit or delay any mans cause . Rule 1.04. A lawyer shall encourage his clients to avoid, end or settle a cont roversy if it will admit of a fair settlement A. UPHOLDING THE CONSTITUTION AND THE LAW Duty to uphold the Constitution and ob ey the law First and foremost duty of a lawyer is to: 1. Maintain allegiance to the Republic of the Philippines; 2. Uphold the Constitution and 3. Obey the laws of the land. Code of Professional Responsibility underscores the primacy of suc h duty. Canon 1: A lawyer shall uphold the Constitution, obey the laws of the lan d, and promote respect for law and legal processes. Role of lawyers in the commun ity: While the duty to uphold the Constitution and obey the law is an obligation imposed on every citizen, a lawyer assumes responsibilities well beyond the bas ic requirements of good citizenship. As a servant of the law, a lawyer should mo reover make himself an example for others to emulate. Being a lawyer, he is supp osed to be a model in the community in so far as respect for the law is concerne d. A lawyers responsibilities are greater than those of a private citizen. He mus t not subvert the law by counseling in activities which are in defiance of the l aw. He should not allow his services to be engaged by an organization whose memb ers are violating the law, to defend them when they get caught. to engage in unl awful 24 Duty not conduct ralc2011


Canon 1, Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. As servant of the law, a lawyer should moreover make himself an exemplar for others to emulate. Duty to obey the law and promote respect for law and legal processes demands that he shall not engage in unlawful, dishonest , and immoral, or deceitful conduct. Unlawful conduct is an act or omission whic h is against the law. Dishonesty involves lying or cheating. Immoral or deceitfu l conduct is that which is willful, flagrant or shameless and which shows a mora l indifference to the opinion of the good and respectable members of the communi ty. Moral turpitude includes everything which is done contrary to justice, honest y, modesty, or good morals . It involves an act of baseness, vileness, or depravit y in the private duties which a man owed his fellowmen, or to society in general , contrary to the accepted and customary rule of right and duty between man and woman, or conduct contrary to justice, honesty, modesty, or good morals.

He should not allow his services to be engaged by an organization whose member a s violating the law, to defend them when they get caught. The Supreme Court will not denounce criticismmade by anyone against the Court for, if well founded, ca n truly have constructive effects in the task of the Court, but it will not coun tenance any wrongdoing nor allow the erosion of our peoples faith in the judicial system, let alone, by those who have been privileged by it to practise law in t he Philippines. (Estrada v. Sandiganbayan, 416 SCRA 465 (2003)) Terrel was found guilty of malpractice or gross misconduct for assisting in the establishment an d acting as counsel for the Centro Bellas Artes Club, an organization intending to evade the practice of law. (In Re Terrel (1903))

Duty not to encourage lawsuits Rule 1.03. A lawyer shall not, for any corrupt mo tive or interest, encourage any suit or delay any mans cause. Among the unprofess ional acts which come within the prohibition include the lawyers: 1. Volunteering advice to bring lawsuit, except in rare cases where ties of blood, relationship , or trust. 2. Hunting up defects in titles or other causes of action. 3. Seekin g out claims for personal injuries or those having any other grounds of action t o secure them as clients. 4. Initiating a meeting of the members of a club and i nducing 25 Duty not to counsel illegal activities Canon1, Rule 1.02. A lawyer shall not cou nsel or abet activities aimed at defiance of the law or at lessening confidence in the legal profession. A lawyer who defies a writ or preliminary injunction ha s flouted his duties as a lawyer. He should not promote an organization known to be violating the law nor assist it in a scheme which he knows is dishonest ralc2011

LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo them to organize and contest a legislation under his guidance. 5. Purchasing not es to collect them by litigation at a profit. Purpose of the prohibition: To pre vent ambulance chasing - solicitation of almost any kind of legal business by la ymen employed by an attorney for the purpose or by the attorney himself. Ambulan ce chasing has spawned recognized evils and is prohibited because: 1. It stirs u p litigation with resulting burdens on courts and the public; 2. Supports perjur y. 3. Defrauds innocent persons by judgments, upon manufactured causes of action s. 4. Defrauds injured persons having proper causes of action but ignorant of le gal rights and court procedure by means of contracts which retain exorbitant exp enses and by settlement made for quick returns of fees against the rights of the injured persons. fees which are often considerably less when the cause is amicably settled. The p roblem of conflict of interests must be resolved against self-interest. Parties to an amicable settlement enjoy benefits better than those which can legally be secured to them by judicial procedure. Litigation involves time, expense, and il l feelings, which may well be avoided by the settlement of the action. A comprom ise or even a confession of judgment will: 1. Accord respect to the just claim o f the other party; 2. Save the client additional expenses; 3. Help prevent clogg ing of the docket.

Duty to encourage amicable settlement Rule 1.04. A lawyer shall encourage his cl ients to avoid, end or settle a controversy if it will admit of a fair settlemen t. The function of a lawyer is not only to conduct litigation but to avoid it wh ere possible, by advising settlement or withholding suit. He/she must act as med iator for compromise rather than an instigator and conflict. What sometimes becl ouds a lawyers judgment as to what is best for his client is his/her eye on the a ttorneys 26

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LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo CANON 2: A lawyer shall make his legal services available in an efficient and co nvenient manner compatible with the independence, integrity and effectiveness of the profession. Rule 2.01. A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed. Rule 2.02. In such cases, even i f 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 2.03. A lawyer shall not do or permit to be done any act designed t o primarily solicit legal business. Rule 2.04. A lawyer shall not charge rates l ower than those customarily prescribed unless the circumstances so warrant. B. M AKING LEGAL SERVICES AVAILABLE Generally A lawyer shall make his legal services available in an efficient and convenient manner compatible with the independence , integrity and effectiveness of the profession. A lawyer who is qualified to pr ovide efficient legal services should make available such services to those who are in need thereof. IBP Committee that drafted the Code explained: A person in n eed of legal services should be able to find a lawyer who is qualified to provid e them. It is ralc2011

the responsibility of the bar to make such services available. A wide gap exists between the need and its satisfaction. This has been mainly ascribed mainly to 2 reasons: 1. Poverty and the consequent inability to pay. 2. Ignorance not only of the need of legal services but also of where to find a competent and dependab le lawyer. A lawyer shall not reject the cause of the defenseless Rule 2.01. A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppre ssed. Stems from one of the obligations incident to the status and privileges of a lawyer To represent the poor and oppressed in the prosecution of their claims or the defense of their rights. Even in those instances in which he may not, fo r valid reasons, accept the case, the lawyer shall not refuse to render legal adv ice to the person concerned if only to the extent necessary to safeguard the lat ters rights. (Rule 2.02.) The duty of a lawyer to accept the cause of the defensel ess and the oppressed empowers the court to require him to render professional s ervices to any party in a case, if the party is without means to employ an attor ney and the services of a lawyer are necessary to protect the rights of such par ty or secure the ends of justice. To designate him as counsel de oficio for an a ccused if the latter is unable to employ a counsel de parte. The lawyer so assig ned has to render effective legal services, under the pain of disciplinary sanct ion should he fail or 27


neglect to do so, until he is excused therefrom by the court. Every lawyer shoul d: 1. Welcome the assignment as an opportunity to render public service; 2. Show that the practice of law is a profession; and 3. Demonstrate that the efficient discharge of his duties does not depend upon payment or amount of fees. The Int egrated Bar of the Philippines through its Committee on Legal Aid has establishe d legal aid offices throughout the country. Its objective is to provide on a nat ionwide basis legal services in favor of the poor segment of society. Their poli cy is that legal aid is not a matter of charity. It is a means for the correctio n of social imbalance that may and often do lead to injustice, which makes it a public responsibility of the Bar.

2. He shall not decline to represent a person solely on account of the latters ra ce, sex, creed or status of life or because of his own opinion regarding the gui lt of said person. (Canon 14, Rule 14.01) 3. If there is serious and sufficient cause, an appointment as counsel de oficio or as amici curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of f ree legal aid. (Canon 14, Rule 14.02) EXCEPTION TO THE EXCEPTION: A lawyer may r efuse to accept representation of an indigent client if: a. He is not in a posit ion to carry out the work effectively or competently; b. He labors under a confl ict of interests between him and the prospective client or between a present cli ent and the prospective client. (Canon 14, Rule 14.03) A valid reason to refuse is when the lawyer is not in a position to carry out the work effectively and co mpetently. However he shall still render legal advice (such as those pertaining to preliminary steps a person can take). But he shall refrain from giving legal advice if the reason for not accepting the case is that there involves a conflic t of interest (between him and a prospective client or between a present client and a prospective client). In the case mentioned above, rendering legal advice t o the prospective client will establish an attorney-client relationship between them and this will constitute a violation of the rule prohibiting a lawyer from representing conflicting interests. (Canon 15, Rule 15.03) 28

A lawyer shall not refuse to render legal advice Rule 2.02. In such cases, even if the lawyer does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary to safeguard the latters rights. GENERAL RULE: A lawyer may refuse to accept the cause of the defenseles s or the oppressed. A lawyer is not obliged to act as legal counsel for any pers on who may wish to become his client. EXCEPTIONS: 1. A lawyer shall not refuse h is services to the needy.

ralc2011

LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo Participating in legal development CANON 5: A lawyer shall keep abreast of legal developments, participate in continuing legal education programs, support effor ts to achieve highest standards in law schools as well as in the practical train ing of law students and assist in disseminating information regarding law and ju risprudence. It is the bounden duty of counsel in the active practice to keep ab reast of decisions of the Supreme Court and changes in the law. It is imperative that judges should be conversant with basic legal principles and with the chang es in the law and with the latest decisions and precedents. For service in the j udiciary and being in the active practice of law require continuous study and re search on the law from beginning to end. Legal education should be a continuing concern. After admission to practice, a lawyer incurs a three-fold obligation: 1 . He owes it to himself to continue improving his knowledge of the law. 2. He ow es it to his profession to take an active interest in the maintenance of high st andards of legal obligation. 3. He owes it to the lay public to make the law a p art of its social consciousness. 850 (Mandatory Continuing Legal Education), are required every 3 years to comple te at least 36 hours of continuing legal education activities, with appropriate penalties for failure to do so. C. APPLICABILITY OF CODE TO GOVERNMENT LAWYERS C ANON 6. These Canons shall apply to lawyers in government service in the dischar ge of their official duties. Rule 6.01. The primary duty of a lawyer in public p rosecution is not to convict but to see that justice is done. The suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action. Rule 6 .02. A lawyer in government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his pu blic duties. Rule 6.03. A lawyer shall not, after leaving government service, ac cept engagement or employment in connection with any matter in which he had inte rvened while in said service.

Mandatory Continuing Legal Education (MCLE) mpt under Rule 7 of Bar Matter No. ralc2011

Members of the IBP, except those exe

Code is applicable to government lawyers Canon 6 makes the Code of Professional Responsibility applicable to lawyers in government service in the discharge of t heir official duties. 29


The reason for the rule is that a lawyer does not shed his professional obligati ons upon assuming public office. In fact, his professional obligations should ma ke him more sensitive to his official obligations because a lawyers disreputable conduct is more likely to be magnified in the public eye. As government counsel, they have the added duty to abide by the policy of the State to promote a high standard of ethics in public service. As part of the government bureaucracy, it is incumbent upon lawyers to perform and discharge their duties with the highest degree of professionalism, intelligence, and skill, and to extend prompt, court eous, and adequate service to the public. Fundamental principle in public law: P ublic office is a public trust. A public servant owes utmost fidelity to the pub lic service. Norms of conduct required of public officials: 1. Uphold the public interest over and above personal interest. 2. Discharge their duties with the h ighest degree of excellence, professionalism, intelligence, and skill. 3. Act wi th justness and sincerity. 4. Provide service without discrimination. 5. Extend prompt, courteous, and adequate service to the public. 6. Be loyal to the Republ ic. 7. Commit themselves to democratic way of life and values. 8. Live modest li ves.

Rule 6.01. The primary duty of a lawyer in public prosecution is not to convict but to see that justice is done. The suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehe nsible and is cause for disciplinary action. A public prosecutor is a quasi-judi cial officer who represents, not an ordinary party to a controversy, but soverei gnty. This sovereignty has its obligation to govern impartially. Therefore, the interest in a criminal prosecution is not that it shall win a case but that just ice shall be done. A public prosecutor should not hesitate to recommend to the c ourt the acquittal of the accused if the evidence in his possession shows that t he accused is innocent. If he finds no legal basis to sustain a conviction, he s hould not hesitate to recommend that the accused be acquitted. For his finest hou r is not when he wins a case with the conviction of the accused. His finest hour is still when, overcoming the advocates natural obsession for victory, he stands up before the court and pleads not for the conviction of the accused but for hi s acquittal. For indeed, his noble task is to prosecute only the guilty and to p rotect the innocent.

A prosecutor shall see to it that justice is done ralc2011 Restrictions on the functions of public prosecutor Public prosecutors should not

allow giving the impression that their noble office is being used, wittingly or unwittingly, for political ends or other purposes alien to the basic objective of serving the interests of justice 30

LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo evenhandedly, without fear or favor to any and all litigants, whether rich or po or, weak or strong, powerless or mighty. It is his duty to refrain from improper methods calculated to produce a wrongful conviction. He should not offer as pro of of the guilt of the accused which is illegally seized. Nor suppress facts or conceal witnesses capable of establishing the innocence of the accused. It is im proper for a public prosecutor to: 1. Assist in the escape of a prisoner. 2. Ins titute a criminal action to force settlement of a case. 3. Agree to refrain from prosecuting a person in consideration of some reward. 4. Receive money for dism issing a complaint. 5. Induce an accused to plead guilty. 6. Willfully fail to p rosecute violations of law. 7. Have a secret partner with whom he divides the at torneys fees.

Role of the private prosecutor GENERAL RULE: Where the civil action for recovery of civil liability is instituted in the criminal action, the offended party may intervene by counsel in the prosecution of the offense. (Rule 110, Sec. 16. Rul es of Court) EXCEPTIONS: Public prosecutor has direction and control of the pros ecution: 1. Where from the nature of the crime and the law defining and punishin g it, no civil liability arises in favor of a private offended party. 2. In case s where from the nature of the offense, the offended party is entitled to civil indemnity arising therefrom but he has: a. Waived the civil action or b. Express ly reserved the right to institute it separately from the criminal action. The r ole of the private prosecutor in criminal actions is to represent the private of fended party with respect to the civil action for the recovery of civil liabilit y arising from the offense. His sole purpose is to enforce the civil liability a nd not to demand the punishment of the accused. In appeals, the Solicitor General has control GENERAL RULE: The Solicitor Genera l shall represent the People in criminal actions brought to the Court of Appeals and the Supreme Court. EXCEPTION: In all cases elevated to the Sandiganbayan an d from there to the Supreme Court, the Office of the Ombudsman, through its spec ial prosecutor, shall represent the People. 9RA 8249) EXCEPTION TO THE EXCEPTION : Cases filed pursuant to Executive Order Nos. 1, 2, 14, and 14-A issued in 1986 . ralc2011

Intervention by private lawyer is subject to prosecutors control The intervention of the private prosecutor in the criminal prosecution is always subject to the direction and control of the public prosecutor. Public prosecutor is duty bound to take charge of the prosecution until its termination. While he may allow the private prosecutor to actively handle the 31

LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo conduct of the trial, his duty to direct and control requires that: 1. He must b e present during the proceedings. 2. He must at any time, take over the conduct of the trial from the private prosecutor. Where the prosecutor turned over the a ctive conduct of the trial to the private prosecutor who presented testimonial e vidence even when the public prosecutor was absent during the trial, the evidenc e presented could not be considered as valid evidence of the People of the Phili ppines. However, it applies only to courts which are provided by law with their own prosecutors, and not to Municipal Trial Courts which have no trial prosecuto rs. A private prosecutor taking over a criminal action cannot take a stand diffe rent from or opposed to that of the public prosecutor or cannot adopt a stand in consistent with that of the Solicitor General, otherwise it would be tantamount to giving him the direction and control of the criminal proceedings, contrary to law and settled rules on the matter.

Rule 6.02. A lawyer in government service shall not use his public position to p romote or advance his private interests, nor allow the latter to interfere with his public duties. If the law allows a public official to practice law concurren tly, he must not use his public position to feather his law practice. Neither sh ould he accept any private legal business in which his duty to his client will o r may conflict with his official duties, and if some unforeseen conflict with hi s official duties arises he should terminate his professional relationship. A pu blic official should see to it that his private activity does not interfere with the discharge of his official functions. He should avoid all impropriety and th e appearance of impropriety. Neither should he inferentially create a public ima ge that he is utilizing his public position to advance his professional success or personal interest at the expense of the public.

When the public prosecutor should take over handling of the case A public prosec utor should not allow the trial in the hands of a private prosecutor to degenera te into a private prosecution. The administration of criminal law should never b e for the accomplishment of a private gain or advantage nor it be a vehicle of o ppression for the gratification of private malice. A lawyer shall not use his pu blic position to promote his private interest ralc2011 RA 6713 (Code of Conduct and Ethical Standards for Public Officials and Employee s. Sec. 7(b). In addition to acts and omissions of public officials and employee s not prescribed in the Constitution and existing laws, the following shall cons titute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful: (b) Outside employment and other activities related thereto.Public officials and employees during their incumbency shall not: 1. Own, control, manage or accept employment as officer employee, 32

LEGAL ETHICS Based on the book Legal and Judicial Ethics by Atty. Ruben E. Agpalo consultant, counsel, broker, agent, trustee or nominee / in any private enterpri se 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 ten d to conflict with their official functions; or 3. Recommend any person to any p osition in a private enterprise which has a regular or pending official transact ion with their office. Former official may not accept certain employment Rule 6. 03. A lawyer shall not, after leaving government service, accept engagement or e mployment in connection with any matter in which he had intervened while in said service. The restriction covers engagement and employment, which means that he ca nnot accept any work or employment from anyone that will involve or relate to th e matter in which he intervened as a public official, except on behalf of the bo dy or authority which he served during his public employment.

PCGG v. Sandiganbayan, 455 SCRA 526 (2005)): PCGG seeks to disqualify Atty. Este lito Mendoza as counsel for the Lucio Group of Companies in the suit involving t he sequestration of shares of stock of the LGC as alleged ill-gotten wealth, on the ground that as former Solicitor General, he intervened in the matter of the liquidation of Genbank, which was subsequently purchased by LGC. ralc2011 The Court ruled that ATty Mendoza could not be disqualified from representing th e LGC. The Court explained: The key to unlock Rule 6.03 lies in comprehending. 1 . The meaning of matter referred to in the rules. 2. The metes and bounds of the in tervention made by the former government lawyer on the matter. The American Bar Ass ociation, in its Formal Opinion 342, defined matter as: o Any discrete, isolatable act as well as identifiable transaction and not merely an act of drafting, enfo rcing or interpreting government or agency procedures, regulations or laws, or b riefing abstract principles of law. The matter or the act of Atty. Mendoza as Soli citor General is advising the Central Bank on how to proceed with Genbanks liquida tion is held not to be the matter contemplated by Rule 6.03. Clearly, ABA Formal O pinion 342 stresses that Atty. Mendozas acts did not fall within the scope of the term matter. It is given that respondent Mendoza had nothing to do with the decis ion of the Central Bank to liquidate Genbank and did not even participate in the sale of Genbank to Allied Bank. The matter which he got himself involved was info rming the Central bank on the procedure by law to liquidate Genbank. It is not t he same as the subject matter of the civil case of sequestration of stocks owned b y Tan in Allied Bank on the alleged ground that 33


they are ill-gotten. This case does not involve the liquidation of Genbank. Whet her the shares of stock of Allied Bank are ill-gotten is far removed from the is sue of the dissolution and liquidation of Genbank. Intervention is interference that may affect the interest of and influence others. Intervention must not be insubstantial and insignificant. Substantial responsibi lity is required by the prohibition. In interpreting Rule 6.03, the Court also ca st a harsh eye on its use as a litigation tactic to harass opposing counsel as w ell as deprive his client of competent legal representation. In the case at bar, the new attempt to disqualify respondent Mendoza has long been a dead issue, re suscitated after the lapse of many years and only after PCGG has lost many

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