BASIC LEGAL ETHICS – PRE FINALS

CANON 14 – A lawyer shall not refuse his services to the needy.

Lawyer not bound to accept all cases – if he already loaded with cases, he should not accept any more case, which he could no longer handle.

- The failure of a client to pay the balance of the amount he promised is not sufficient to justify the lawyer’s failure to comply with his professional obligation.

Restrictions – the lawyer cannot decline to represent a person for the sole reason od the latter’s (1) race, (2) sex, (3) creed, (4) status in life, or (5) because of the lawyer’s opinion that said person is guilty of the charge.

- A lawyer cannot refuse to undertake the defense if an accused person simply because he believes that said person is guilty.

- The lawyer should defend the accused by all fair and honorable means that the law permits regardless of his personal opinion as to the guilt of the said accused.

If the prosecution fails to prove the guilt of the accused beyond reasonable doubt, it is not wrong for the counsel to invoke acquittal of his client.

Appointment as counsel de oficio – If the accused desires and is unable to employ an attorney, the court must assign an attorney de oficio to defend him. And the lawyer cannot decline the appointment except only for serious and sufficient cause.

- Counsel de oficio – the lawyer is duty bound to exert his best efforts and professional ability in behalf of the person assigned to his care.

- The presiding judge must give the counsel de oficio ample opportunity to examine not only the records of the case but also to confer with the accused lengthily so he can properly defend the interest of the accused.

- The counsel de oficio should be given 1 hour to consult with accused as to his plea before proceeding with the arraignment.

- Right to a counsel de oficio does not cease upon the conviction of the accused by the trial court. If he wants to appeal, the court must still assign a counsel de oficio for the purpose.

Amicus curiae – “friend of the court” and is not a party to the action; he may petition the court for permission to file a brief, ostensibly on behalf of a party but actually to suggest a rationale consistent with his own views. (Briefs may be filed also if accompanied by the written consent of all parties or at the request of the court.)

- has no control over the suit and no righto institute any proceedings

- cannot assume the functions any a party in an action or proceedings pending before the court; ordinarily, he can file a pleading in a cause

The IBP may request members of the bar to render free legal aid to poor deserving litigants.

- Legal Aid – not a matter of charity. It means for the correction of social imbalance that may and often do lead to injustice, for which reason it is a public responsibility of the Bar.

A lawyer may not refuse to accept representation of an indigent client unless:

1. He is not in a position to carry out the work effectively or competently;2. He labors under conflict of interest between him and the prospective client or between present client and prospective client.

A lawyer who pretends to be disqualified under the rule is committing grave misconduct.

The Code of Professional Responsibility is not a request to lawyers but is an order from the highest court to all concerned lawyers who are officers of the court.

If a lawyer volunteers his services to a client, and therefore not entitled to attorney’s fees, he is bound to attend to the client’s case with all due diligence and zeal.

CANON 15 – A lawyer shall observe candor, fairness, and loyalty in all his dealings and transactions with his client.

Candor – the lawyer must give a candid and honest opinion on the merit or lack of merit of his client’s case.

- the counsel should advise his clients of the futility of their cause to avoid unnecessary expenses.

- And must neither overstate or understate the prospects of the case.

Fairness/loyalty – the lawyer must immediately inform his prospective client of the involvement of another client or his

own interest in the case which will result in representing conflict of interests. Except: by written consent of all concerned after full disclosure of the facts.

- the lawyer must keep the confidences and secrets of his client even after the termination of their professional relationship as lawyer and client.

- A prospective client is considered in availing this right/privilege of communication.

- A lawyer must have undivided fidelity to his client. Exceptions to the preservation of the confidences and secrets of

clients:1. When the revelation is authorized by the client after having been the revelation is required by law;2. When the revelation is required by law;3. When necessary to collect the lawyer’s fees or to defend himself, his employees or associates or by judicial action.

Kinds of Conflict of Interests1. Concurrent or multiple representation2. Sequential or successive representation

Three tests in determining conflicting Interests:1. Whether a lawyer is duty-bound to fight for an issue or claim in behalf of one client and at the same time to oppose that claim for the other client.2. Whether the acceptance of a new relation would prevent the full discharge of the lawyer’s duty of undivided fidelity and loyalty to the client or invite suspicion of unfaithfulness or double-dealing in the performance of that duty.3. Whether the lawyer would be called upon in the new relation to use against a former client any confidential information acquired through their connection.(probability will suffice in determining the conflict of interests not certainty of conflict)

Privilege Communication - the privilege applies even to a mere prospective client, whose case has not been accepted by the lawyer.

Essential Factors of Attorney-client privilege communication:

1. where legal advice of any kind is sought2. from a professional legal adviser in his capacity3. the communications relating to that purpose4. made in confidence

5. by the client6. are at his instance permanently protected7. from disclosure by himself or by the legal advisor8. except the protection be waived

Forms of the communication1. Oral2. Writing3. Actions4. Signs

(transmission may be direct or through messenger, interpreter or through other modes of transmission)

Requisites of the privilege communication:1. there exists an attorney and client relationship or a kind of consultancy relationship with a prospective client; legal advice is what sought.2. the communication was made by the client to the lawyer in the course of the lawyer’s professional employment;3. the communication must be intended to be confidential

Confidential Communication – refers to information transmitted by voluntary act or disclosure between attorney and client in confidence and by means which the client is aware and discloses the information to no third person.

Privilege Communication ceases when:- The contents of the pleadings of an engaged

attorney prepared on the basis of the communications transmitted to him by the client cease to become privileged communications after the pleadings have been filed.

- A communication intended by the client to be sent to a third person through his counsel loses its confidential character as soon as it has reached the hands of the third person.

Two-fold purposes of the rule1. To encourage a client to make a full disclosure of the facts of the case to his counsel without fear2. To allow the lawyer freedom to obtain full information from his client.(The party who avers that the communication is privileged has the burden of proof to establish the existence of the privilege unless from the face of the document itself clearly appears that it is privileged.)

Instances when communication is NOT privileged:1. When communication is made to a person who is not a lawyer even if such person committed himself to render legal services.2. When communication is made to a lawyer for some other purpose (such as lease) other than on account of the lawyer-client relationship. 3. When the advice sought from the attorney is not legal.

Parties entitled to invoke the privilege:1. Client/client’s employee2. lawyer himself3. attorney’s secretary, stenographer, or clerk

If a lawyer is called as a witness to disclose any privileged information, he may legally refuse to testify in the absence of any waiver on the part of the client.

He cannot legally refuse to testify and may be compelled to disclose any information if it is unprivileged communication.

Privileged communication does not extend to those transmitted in contemplation of future crimes or frauds. BUT, information on crimes or fraud already committed falls within the privilege and the lawyer cannot reveal or be compelled to reveal the confidences of the client.

Rule on privileged communication is also applicable to students under the Student Practice Law Program.

Influence-peddling – it is improper for a lawyer to show in any way that he has connections and can influence any tribunal or public officials, like justices, judges, prosecutors, congressmen and others; whether factual or imaginary.

When a lawyer is concurrently engaged in business, he must clarify to client in what capacity he is acting.

CANON 16 – A lawyer shall hold in trust all moneys and properties of his client that may come into his possession.

The lawyer is under obligation to hold in trust all moneys and properties of his client that may come into his possession. Any disbursement will require a consent from the client.

The lawyer should promptly account for all the funds received or held by him for the client’s benefits.

He should keep and maintain adequate records of the client’s moneys or properties in his custody.

The lawyer is under strict obligation to label and to identify hid client’s property and keep it separate from his own.

If money delivered for specific purposes and was not utilized by the counsel must immediately be returned.

A lawyer cannot unilaterally appropriate for himself the money of his client for payment of his attorney’s fees.

Charging liens – to enforce this, it is necessary that the lawyer shall have caused a statement of such lien to be entered upon the records of the court which rendered the favorable judgment with written notice to the client and to the adverse party.

-An attorney shall have a lien upon funds, documents and papers of his client.

-Attorney’s retaining lien does not apply to public documents and exhibits introduced in court.

-If the lawyer is dismissed without justifiable cause, the client will pay in full attorney’s fees expressly agreed upon in their contract.

- lawyer’s charging lien may be assigned.- a lawyer is not deprived of his attorney’s fees by the

death of his client. Probate court has no authority to enforce a lien. Lawyer shall not borrow money from o lend money to client.

Except: when provided the interests of the client are fully protected by the nature of the case.

CANON 17 – A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him.

Fidelity – to the cause of the client is the essence of the legal profession.

- the duty of fidelity requires the existence of the attorney and client relationship.

Lawyer owes entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability.

Undivided fidelity to clients should not be at the expense of truth and the fair dispensation of justice.

CANON 18 – A lawyer shall serve his client with competence and diligence.

Diligence – the attention and care required of a person in a given situation and is the opposite of negligence.

Presumption of Diligence – in the absence of any contrary evidence, a lawyer is presumed to be prompt and diligent in performance of his duties and to have employed hid best efforts, learning and ability in the protection of his client’s interest.- A lawyer should strive for proficiency in his practice

and should only accept employment in matters in which he is or can become competent after reasonable preparation.

- When cases are lost due to lack of diligence of the counsel, the clients gravely suffer.

- The legal profession demands of a lawyer to adopt “the norm of practice expected of men of good intentions.

- All that is required is ordinary diligence or like a good father of the family or pater familias.

A lawyer is directed not to undertake legal services which he knows or should know he is not qualified or competent to render. Except: if his client consents, the lawyer can take as collaborating counsel another lawyer who is competent on the matter.

Government lawyers cannot practice law. His acceptance of attorney’s fees from outside clients is a violation.

Collaborating counsel – is one who is subsequently engaged to assist a lawyer already handling a particular case for a client.

- the handling lawyer cannot just take another counsel without the consent of the client.

- The new lawyer cannot just enter his appearance as collaborating counsel without the conformity of the first counsel.

A lawyer should be a proficient legal writer. Should have adequate preparation; careless preparation betrays

the lawyer’s lack of devotion to duty and lack of honesty and capacity.

Litigants should give the necessary assistance to their counsel for what is at stake is their interest in the case.

A lawyer for to be held liable, his failure to exercise reasonable care, skill and diligence must be the proximate cause of the loss.

A lawyer has no authority to waive client’s right to appeal. A lawyer should inform always inform his client regarding the

status of the case.

-in case of adverse decision, the client must be informed within the period of appeal to enable him to decide whether or not he will still seek an appellate review of the decision.

CANON 19 - A lawyer shall represent his client with zeal within the bounds of the law.

A lawyer shall not file or threaten to file any unfounded or baseless cases against adversaries of his client.

Blackmail – the extortion of money from a person by threats of accusation or exposure or opposition in the public prints.

A lawyer shall not bribe or attempt to bribe a judge to win his case.

A lawyer should do his best efforts to restraint and to prevent his client from perpetrating with the reference to their himself ought not to do.

- if a client persists in such wrongdoings, the lawyer should terminate their relation.

A lawyer should not allow his client to dictate the procedure in handling the case.

- he can choose the proceedings he will institute in the pursuit of his client’s case

- he will determine the witnesses to be presented in court

- he can enter into stipulations of fact, though of not law

- he can agree to advance the date of hearing- he can waive objections to evidence as he may

deem fit- he can agree to postpone the trial of the case

despite the client’s contrary wishesNote: In matters of procedures, a lawyer is in control but not as to the subject matter of the case.

The client has no right to demand that his counsel be illiberal, or that he does anything therein repugnant to his own sense of honor and propriety.

- When client’s request is lawful, the lawyer is obliged to follow the instructions of the former.

- The client decides whether to appeal or not to appeal an adverse decision. If he decides not to appeal, the lawyer must not insist otherwise.

CANON 20 – A lawyer shall charge only fair and reasonable fees.

Two concepts of attorney’s fees:1. Ordinary concept – reasonable compensation paid to lawyer for the legal services he has rendered to a client. 2. Extraordinary concept – an indemnity for damages ordered by the court to be paid by losing party to the prevailing party in a litigation.

Employment of a lawyer constitutes the legal basis of the lawyer’s right to demand payment for his services.

- No formal contract is necessary to effectuate employment.

Commencement of employment is when there is a meeting of the minds between the lawyer and client on the case or subject to be handled and the consideration therefor, the lawyer is deemed employed even if not acceptance fee is paid yet.

When a client employs the services of a law firm, he does not employ the services of the lawyer – he employs the entire law firm.

Forms of formal employment:1. Oral – when the counsel is employed without a written agreement but the conditions and amount of attorney’s fees are agreed upon.2. Express/written – 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.

If the lawyer is allowed by the client to represent the latter in proceeding, even if there is no agreement on payment of attorney’s fees, the lawyer is entitled to reasonable fee of his services.

The protection of attorney’s lien by the court is necessary to preserve the decorum and respectability of the profession.

The client cannot reduce and the lawyer cannot increase the stipulated fees without judicial approval.

Attorney’s fees where client withdraws (Sec. 26, Rule 138):- In case of unjustified dismissal of an attorney, he shall be entitled to recover from the client full compensation stipulated in the contract if the following conditions concur:

1. Contract has been reduced to writing2. Dismissal of attorney is without justifiable cause.

Attorney’s fees where the counsel withdraws:1. When cause is justified, he’ll be compensated in quantum meruit.2. When the cause is not justified, attorney’s fees may be reduced or may be forfeited.

Paupers are exempted from payment of legal fees but not from payment of attorney’s fee.

Ambiguities in contract of attorney’s fees, the interpretation must be favorable to the client.

Presumption as to entitlement of attorney’s fees:General rule: If a lawyer renders valuable services to

one who receives the benefits thereof, a promise to pay a reasonable value is presumed.

Exception: such services are intended to be gratuitous Kinds of attorney’s fees arrangements:

1. Fixed or absolute fee (acceptance fee)2. Contingent fee (success fee)3. Fixed fee payable per appearance ( court appearance)4. Fixed fee hourly rate/time billing (preparation of pleadings)5. Fixed fee based on piece work ( by pages of the pleadings)

Examples of law limitations on attorney’s fees:1. R.A. No. 145 – a lawyer is limited to attorney’s fees of not more than Php20.002. It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recovery of wages, attorney’s fees which exceed ten (10%) of the amount of wages recovered.

Retainer – this is the act of the client by which he employs a lawyer to manage for him a cause to which he is a party, or otherwise to advise him as counsel.

Kinds of retainer agreement on attorney’s fees:1. General retainer or retaining fee - is the fee paid to a lawyer to secure his future services as general counsel for any ordinary legal problem that may arise in the ordinary business of the client and referred to him for legal action.2. A special retainer – this is a fee for specific case or service rendered by the lawyer for a client. A client may have several cases. If for every case there is a separate and independent contract for attorney’s fee, each fee is considered a special retainer.

Retainer fee – is a preliminary fee given to an attorney or counsel to insure and secure his future services and induce him to act for the client.

A lawyer cannot charge their clients fees based on percentage basis in the absence of an agreement to that effect.

Champertous Contract – it is void being against public policy. The lawyer agrees to spend for all the litigation expenses in consideration for a bigger percentage as fees on the property subject to litigation.

Contingent Contract - is one which stipulates that the lawyer will be paid for his legal services only if the suit or litigation ends favorably to the client.

- acceptance of initial fee before or during the progress of the litigation does not detract from the contingent nature of the fees.

- Initial fees and subsequent fees paid during the progress of the litigation are independent of the contingent fees.

Quantum Meruit – permitted where there is no express agreement; determination of attorney’s fees which is as much as the lawyer deserves.

- is a legal mechanism in legal ethics which prevents an unscrupulous client from running away with the fruits of the legal services of a counsel without paying therefor.

- It is a device to prevent undue enrichment based on the equitable postulate that it is unjust for a person to retain benefit without paying for it.

Basis of Quantum Meruit:

1. There is no express contract for payment of attorney’s fees agreed upon between the client and the lawyer.2. When although there is a formal contract for attorney’s fees, the fees stipulated are found unconscionable or unreasonable by the court.3. When the contract for attorney’s fees is void due to purely formal matters or defects of execution.4. When the counsel, for justifiable cause, was not able to finish the case to its conclusion.5. When the lawyer and client disregard the contract for attorney’s fee

Attorney’s fees to be justified, its reason must be mentioned in the text of the decision.

Assumpsit – the action filed by a lawyer against his client for collection of attorney’s fees.

Factors in determining attorney’s fees1. the time spent and the extent of the services rendered or required;2. the novelty and difficulty of the questions involved;3. the importance of the subject matter;4. the skill demanded;5. the probability of losing other employment as a result of acceptance of the proffered case;6. the customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs;7. the amount involved in the controversy and the benefits resulting to the client from the services;8. the contingency or certainty of compensation;9. the character of the employment whether occasional or established;10. the professional standing of the lawyer;

Attorney’s fees are unconscionable if they affront one’s sense of justice, decency or reasonableness.

Examples: - the fee being charged is 44% of the just

compensation in an expropriation case.- 50% of the judgment award in a labor case as

attorney’s fees. In Labor laws, the attorney’s fees which can be charged by the

lawyer is fixed to 10%.

Champertous Contract

Contingent Contract

A lawyer undertakes to bear all expenses incident to the litigation

NA

Payable in cash or in kind

Payable in cash or in kind

Void; against public policy and ethics of the profession

Valid

Sharing or division of attorney’s fees:General rule: when lawyers jointly represent common

client for a given fee without any express agreement on how much each will receive, they will share equally as they are considered special partners for a special purpose.

- When two or more lawyers representing common clients have a professional breakup during the pendency of the case, their attorney’s fees shall be shared in amounts to be determined by the court.

- Sharing or dividing attorney’s fees to non-lawyers is prohibited.

Exception: if there are specific contracts executed for the payment of the fees of each lawyer, the contract will prevail. And when the lawyer who bore the burden of the prosecution of the case to its successful end is entitled to the full amount of fees.

If in case there is a collaborating counsel, the client should agree first to take him and when the first lawyer withdraws, the substitute counsel, he will receive attorney’s fees in proportion to the work performed and responsibility assumed.

Lawyer-referral system – helps individuals in location lawyers competent to handle their particular problems. It enables a layman to have an informed selection of competent lawyers who have experience in the subject matter involved.

- An appropriate classification of practicing lawyers according to their lines of specialty may be introduced in the country.

- The IBP is in the best position to initiate the classification or listing of practicing lawyers in each chapter.

General rule: A lawyer shall not accept, without full knowledge and consent of his client, any fee, reward, costs, commission, interest, rebate or forwarding allowance or other compensation related to his professional employment from anyone other than his client.Exception: The client should have full knowledge and approval for a lawyer be allowed to accept any compensation from any other person.

A lawyer should avoid filing any case against clients for the enforcement of his attorney’s fees except to prevent: imposition, malpractice, or fraud.

Two options to recover attorney’s fees:1. In the same case. He may enforce his attorney’s fees by filing an appropriate motion or petition as an incident in the main action where he rendered legal services. (to avoid multiplicity of suits)

- the petition must be filed before the judgment or before the proceeds were delivered to the client.

2. In a separate civil action. He can file an independent action for collection of attorney’s fees.