Kwin Transcripts - Pale

PROBLEM AREAS IN LEGAL ETHICS

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K w i n t r a n s c r i p t s

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June 6, 2010

FOUR FOLD DUTY OF THE LAWYER

1. to the court

2. to the society

3. to the bar

4. to the client

LEGAL ETHICS

Legal ethics is that branch of moral science that traits up the

lawyer’s duties to those four elements.

SOURCES OF LEGAL ETHICS

1. constitution

2. legislation

3. rules of court

4. other special laws, jurisprudence and moral laws

The bulk of the jurisprudence here in the Philippines can be

found in the Code of Professional Responsibility.

PURPOSE

Why is it important?

The survival of the legal profession depends on it. the

highest moral and ethical standards should be maintained so

that the people will continue to repose their trust in lawyers

and the in the role they play in the administration of justice.

So the purpose here is to perpetuate the profession.

PRIMARY CHARACTERISTICS WHICH DISTINGUISH LEGAL

PROFESSION FROM BUSINESS

1. duty of public service of which emolument is a by products

Emolument should not be the first intent.

2. lawyer is an officer of the court

We have discussed the four fold duties of a lawyer.

Which has precedence of the four? The duty to the court.

As officer of the court, the lawyer should see to it that at

the end of the day justice is served.

How does the lawyer do this? It is in the lawyer’s oath,

he shall do no falsehood, he shall not permit the falsehood

done by others, and that he must do his duty with utmost

fidelity.

3. fiduciary relation to client

Fiduciary relationship is based essentially on trust and

confidence. As a fiduciary, the lawyer has obligations to

account for his time, money and property and to ensure

that there is no malpractice.

4. candor, fairness to colleague in the bar

There is brotherhood among lawyers.

There are even duties on the part of the lawyer not to

steal clients of other lawyers and downgrade the ability of

other lawyers.

LAW PARTNERSHIP

Is the partnership a legal entity?

NO. It is not in a strict sense of a word. It really just a lose

partnership or a relationship or any association for the

particular purpose of rendering legal services for the clients.

It is not a partnership for the purpose of carrying on a trade

or business or holding property.

Case: Tan vs del Rosario

A professional law partnership even if registered with the

SEC is not even a taxpayer. And any lawyer practicing in a

partnership is considered a solo practitioner who is the TP.

A partnership is just an association of lawyers. They share

office space and some share clients. And they also share

legal expenses.

But the partnership itself is not a separate legal entity.

Because the law profession is based on personal

responsibility. So if the lawyer can just hide behind the

partnership name, then it negates personal liability and

responsibility of lawyering.

CORPORATIONS CANNOT PRACTICE LAW

Can corporations practice law?

NO. Practice of law is reserved only to natural persons who

are lawyers, either in solo practitioners or in partnership

with other lawyers.

REASON – VEIL OF CORPORATE FICTION

Why can there be no corporate practice of law?

The underlying reason why juridical entity or juridical

agency cannot practice law rests on the nature of the

privilege and on the confidential and trust relation between

attorney and client.

Remember that the personality of the corporation is

different from that of the SH. Such that liabilities of the

corporation cannot be the liability of the individual SH.

That’s the VEIL OF CORPORATE FICTION.

If we allow the corporation to practice law, we allow

lawyers to avoid personal liability and accountability by

forming corporation and making them SH. We cannot disbar

corporations.

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RULES PROMULGATED BY SC

SC shall promulgate rules concerning the:

1. protection and enforcement of constitutional rights

2. pleading, practice and procedure in all courts

3. admission to the practice of law

4. admission to the integrated bar

5. legal assistance to the under privilege

ADMISSION OF PRACTICE OF LAW

This is how SC dictates on:

a. how we should take the bar exam

b. who are qualified to take the bar

c. removal from practice of law

No less than the constitution grants the SC authority to

promulgate rules in the practice of law. That carries with it

the authority to remove the practice of law. That is why

apart from the admission on the practice of law, the SC still

has administrative control and supervision of lawyers. After

due investigation, SC can fine, suspend and disbar.

ADMISSION TO THE INTEGRATED BAR

Can you opt not to be a member of the IBP?

NO. Because it is mandated by the rules of court. All

lawyers must be members of the IBP and membership in the

IBP is a requisite before one can practice law.

CONTITUTON AS SOURCE OF LEGAL ETHICS

PRACTICE OF LAW CONCURRENT WITH PUBLIC POST

Can these persons practice law concurrent with their public

post?

President? Of VP?

NO. Prohibition is absolute.

Senators? Members of the House of Representatives?

Yes. But the probation is relative.

They can practice law but they cannot personally appear

before the courts, quasi judicial agencies and other

administrative bodies.

Members of the constitutional commissions?


Ombudsmen and deputy ombudsmen?


Judges and justices?


Retired judges and justices?

Yes. But there are some prohibitions. There are some cases

where they are not allowed to appear

Governors, and city and municipal mayors?


Sanggunian members? Councilors?

Yes. But there are conditions.

CONSTITUTIONAL PROVISIONS ON SENATORS AND MEMBERS

OF THE HOUSE OF REPRESENTATIVES

They can practice law but they cannot personally appear

before any court of justice or electoral tribunals, quasi

judicial and other administrative bodies.

Case: Puyat vs de Guzman

A member of congress appeared before the SEC as counsel

for the corporation. The opposing lawyer questioned his

appearance.

He was not allowed to appear. So he purchased stocks, at a

nominal amount. The next hearing, he went back not as

counsel but as SH.

SC said that a member of congress cannot indirectly fail to

follow the constitutional prohibition of not appearing

personally as counsel before the SEC by buying a nominal

share in the corporation after his appearance as counsel

therein was contested.

CONSTITUTIONAL PROVISIONS ON PRESIDENT

Sec 13 art 7 of the constitution : Absolute prohibition on

the president, VP and members of the cabinet and members

of the family of the president.



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RULES OF COURT AS SOURCE OF LEGAL ETHICS

BEING AN EXECUTOR OR ADMINISTRATOR OF THE ESTATE

Sec 7 rule 85

When the executor or administrator is an attorney, he shall

not charge against the estate any professional fees for any

legal services rendered by him.

And if the lawyer violates this, not only is he violating the

rules of court, he is also violating ethical rules.

What is the reason why the lawyer is prohibited from

charging professional fees?

You have to defend the estate against many claims and

prosecute claims against the estate.

There might be the temptation on the part of the lawyer to

take advantage of his fiduciary powers, like charging very

large fees.

To avoid any temptation, there is this prohibition.

So if you want to become the lawyer for the estate, might as

well decline being the executor and charge the estate for

attorney’s fees.

ATTORNEY CLIENT PRIVILEGE

An attorney cannot without the consent of the client be

examined as to any communication made by the client to

him by his advise given thereon in the course of professional

employment.

OTHER SOURCES OF LEGAL ETHICS FROM THE RULES OF

COURT

138 qualifications for admission to the bar

138-a the law student practice rule

139-a Integrated Bar of the Philippines

139-b grievance procedures, disbarment or suspension of

lawyers – administrative proceedings and liabilities of

lawyers

LEGISLATION AS SOURCE OF LEGAL ETHICS

Art 1491 NCC – ACQUISITION OF PROPERTIES PENDING

LITIGATION Art. 1491. The following persons cannot acquire by purchase, even at a public

or judicial auction, either in person or through the mediation of another: (5) Justices, judges, prosecuting attorneys, clerks of superior and inferior

courts, and other officers and employees connected with the administration of justice, the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions; this prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession.

Simply put, under this article, lawyers are prohibited to

acquire by any means, personally or through another,

property or rights, pending litigation which they are

handling.

What if they buy the property pending litigation? What is

the effect? How do you consider the contract of sale there?

VOID. Because it is contrary to law.

And because it is void, the client cannot ratify it later even

after litigation is over.

LABOR CODE

You cannot overcharge your attorney’s fees. It must not

exceed 10%.

RPC – BETRAYAL OF TRUST BY AN ATTORNEY

Aside form criminal liability, there could also be

administrative liability.

PROMULGATIONS BY SC AS SOURCE OF LEGAL ETHICS

CODE OF PROFESSIONAL RESPONSIBILITY

This was promulgated by SC on June 21, 1988. It still stands

up to now.

Being an issuance of the SC, it is binding on all the lawyers.

CANONS OF PROFESSIONAL ETHICS

It’s an older promulgation.

It was not superseded by the CPR. But the CPE has a

suppletory effect of the CPR.

However if there is a conflict between the CPR and CPE, CPR

prevails.

COURT DECISION, TREATISES AND OTHER SOURCES OF LEGAL

ETHICS

AMERICAN BAR ASSOCIATION

MODEL RULES OF PROFESSIONAL CONDUCT

But from these American Bar Association and Model Rules

are similar to the provisions of CPR. But these could also

have suppletory effect.



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RELATION OF ETHICS AND MORALITY

Are ethics and morality the same?

NO.

In fact there are times when they can be mutually

exclusive.

MORALS

Morals define personal character and the morals could

differ from one person to another.

ETHICS

While ethics stresses a social system in which those morals

are applied.

So ethics applies regardless of who the person is.

IOW ethics point to standards or code of behavior expected

by the group to which the individual belongs, regardless of

the personal moral code of the particular person.

Example.

You consider a criminal defense lawyer. Though the

lawyer’s personal moral code likely finds murder immoral

and reprehensible, ethics demand the accused client be

defended as vigorously as possible, even when the lawyer

knows that the party is guilty and that a free client would

potentially lead to more crimes.

Legal ethics must override personal morals for the greater

good of upholding the justice system for which the accused

is given a fair trial and the prosecution must prove guilt

beyond reasonable doubt.

Example.

Your client is accused of murdering somebody and you

personally know that your client is guilty. What should you

do in the defense of the client?

Employ all fair and honorable means in doing so.

When we say affair and honorable means, utilize all

applicable legal defenses.

Check if prescription has set in. Check how the information

is worded, if it is complete or sufficient. There are grounds

for the dismissal of criminal actions. There are also defenses

and mitigating circumstances.

But you should never resort to underhanded or illegal

means, like manufacturing evidence or killing of witnesses.

Example.

Your client is guilty but prosecution was not able to prove

guilt beyond reasonable doubt, what should you do?

Under that circumstance, your client is entitled for the

acquittal. So you should move for the acquittal. Because

guilt was not proven beyond reasonable doubt.

COROLLARY PRINCIPLES

NOT EVERTHING LEGAL IS MORAL

NOT EVERYTHING LEGAL IS ETHICAL

ACQUISITION OF PROPERTY PENDING LITIGATION AND EVEN

AFTER

What is prohibited by this provision? The acquisition of

rights or property pending litigation of which the lawyer is

handling…

If the litigation is over, can the lawyer acquire?

YES. It is legal because it is no longer covered in the

prohibition.

But there are several cases that SC had held that although

the sale is legal, there is doubt as to the ethics of the

situation. We cannot shake doubt that the lawyer has still

employed his moral ascendancy, and legal superiority over

his client.

The lawyer was still held ethically responsible although the

sale was legal.

This did not happen in all cases involving acquisition after

litigation. But there are still some cases where the lawyer

was held ethically responsible.

THE POWER TO ADMIT TO THE BAR IS VESTED TO THE SC

Can congress pass a law lowering the passing percentage?

You can answer it both ways:

FIRST ANSWER:

No. Because the power to admit to the bar is vested in the

SC and congress cannot encroach in the prerogative of the

SC.

SECOND ANSWER:

Yes. But the law is subject to the approval or disapproval of

SC.

BEFORE: BATASANG PAMBANSA MAY REPEAL OR ALTER

Before our present constitution, in 1935 and 1973; it said that

SC shall have the power to promulgate rules concerning

admission to the bar, ect. Which however may be repealed,

altered by Batasang Pambansa.

So before congress really had the power to alter these rules.

But that phrase has been deleted and the deletion of the

phrase reinforces the policy that the admission to the bar is

a the prerogative of the SC.



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REQUIREMENTS FOR THE ADMISSION IN THE BAR

May you be admitted to Philippine bar?

Comply with all requirements:

1. Citizen of the Philippines

Because when you take the lawyer’s oath, you will have

to pledge allegiance to the Philippines. You cannot do that

if you are an alien.

What if you are a dual citizen? You can, as long as one of

those citizenship is a Filipino.

Case:

A Filipino lawyer went to Canada and got sick. To avail of

the health care there, he was naturalized as a Canadian

citizen. When he got well, he wants to practice law again in

the Philippines. He got repatriated. What is the effect of his

repatriation?

The SC required him to take the oath again.

2. At least 21

3. Good moral character

The legal profession is reserved to those who have good

moral character.

In ethics, conduct that merely escapes criminal law is not

the conduct that we are looking for.

4. Residency

5. No charges against him involving moral turpitude have

been filed or are pending in any court of the Philippines

What is moral turpitude?

It offends the generally accepted code of mankind. It is

an act of baseness, vileness or depravity in the private and

social duties which a man owes to his fellowmen and

society in general.

It is immoral in itself regardless of the fact that it is

punishable by law or not. The doing of the act itself is

inherently immoral and not the prohibition by law.

There are some crimes that jurisprudence has already

declared these crimes as involving moral turpitude like:

a. Robbery

b. Adultery

c. Bigamy

d. Extortion

e. Bribery

f. Forgery

g. Libel

How about those crimes in which the law is silent? How

do you know if it involves moral turpitude?

The safe thing to do is to just disclose the charges against

you and it is up to SC to decide if it involves moral turpitude

or not, rather than SC discovers consequently that you

have concealed a charge against you.

Case: In re Argosino

Argosino killed a neophyte in a hazing incident in a

fraternity. He pleaded guilty to homicide through reckless

imprudence, served probation, took the bar and passed the

bar. But he not allowed to take the lawyer’s oath because

of her conviction.

But SC said that we are not allowing you to take the

lawyer’s oath, but we are directing you to submit evidence

to prove that you have reformed your character.

(06-21 discussion)

So in the next case, he petitioned again to be allowed to

take the lawyer’s oath. And to prove that he had reformed

his character, he presented proof in the form of

testimonials from several senators and congressmen, heads

of religious associations, persons from the academe, all

saying that they know him and that he had improved his

character.

Argosino also said that he had formed a scholarship

foundation in the name of the person who died.

SC finally allowed him to take the lawyer’s oath.

SC WARRANTIES IN ADMISSION TO BAR

The SC is giving warranties in admitting a person to the

practice of law:

1. person so admitted has the necessary learning and

proficiency

2. he has good moral character



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June 21, 2011

PRACTICE OF LAW

What is the practice of law?

Case: Cayetano vs MOnsod

Any activity in and out of court which requires the

application of law, legal procedure, knowledge, training and

experience.

Here, Monsod was appointed Chairman of the COMELEC.

Cayetano questioned it that he was not in the practice of

law for then years. Because he only worked in banks, NGO’s

and nothing to do with legal work.

SC said that it still falls under the practice of law.

PRACTICING LAWYERS VIS A VIS TRIAL LAWYERS

You have to distinguish a practicing lawyer from a trial

lawyer.

All trial lawyers are practicing lawyers. But not all practicing

lawyers are trial lawyers.

OLD DEFINITION OF PRACTICE OF LAW

Why is this definition important?

Because they are not the same. Before Cayetano vs

Monsod, these are the characteristics determinative in the

practice of law:

a. Habituality

b. Compensation

c. Application of law, legal principle, practice or procedure

which calls for legal knowledge, training and experience

d. attorney client relatrionship

With the new definition, 1 and 2 are dispensed with.

SCRIVENING – NOT PRACTICE OF LAW

It is the filling of blanks in standardized or stereotype forms,

which involves purely clerical work without need for any

legal interpretation.

Is this practice of law?

NO. It does not involve the determination of a framed mind

of the legal effects of facts and circumstances.

TEACHING – NOT PRACTOCE OF LAW

Is teaching of law practice of law?

NO.

In DOJ Minister of Justice Opinion 1899 series of 1996, it is

not a practice of law. A law professor does not deal with

clients whose rights are subject to legal controversies.

He does not hold himself as a lawyer but as a mentor

leaned in the law who is qualified by reason of his legal

training to instruct students of legal subjects.

PRACTICE OF LAW IS A PRIVILEGE

We know that a practice of law is a privilege. Because all

lawyers must go to the inherent regulatory power of SC.

PRACTICE OF LAW PARTAKES IN A NATURE OF A RIGHT

It is a privilege. It has many responsibilities, and not

everybody can insist on becoming lawyers but it can partake

in the nature of a right.

But it can also partake the nature of a right.

Case: Philippine Lawyer’s Association vs Agrava

Agrava is the director of the patents office. He required

that before the lawyer can practice in the patents office, the

lawyer to take an examination and to pass the examination

or even as oppositor of the patent.

Can Agrava do that?

NO.

SC said that if you have passed the bar, then you can

practice before any court or quasi judicial tribunal or agency

without further requirements.

So it partakes in the nature of a right. Once ou practice law,

nobody can require additional qualifications.

The RTC cannot say that if you are not accredited byteh

court, you cannot practice before the court.

-REQUIREMENT OF EXAMINATION FOR EMPLOYMENT

PURPOSES

But you have to differ this with requiring an examination

for employment purposes in a government office or in any

office for that matter.

Example. If you just passed the bar and you are applying as

an employee in a patent office. They require you to take an

entrance exam and have an interview afterwards. Can you

say I have just passed the examination and you do not need

any further examination?

NO.

It is a different thing if you seek for employment. Because

that is EMPLOYER’S PREROGATIVE, prerogative to hire and

not to hire.

And corollary to that prerogative is the giving of the exam

and interview.

What the Agrava case involved is the examination before

you can practice in the Patent Office.



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WHO MAY PRACTICE LAW

REQUIREMENTS UNDER RULES OF COURT

Who can practice law under the rules of court?

Those who have been admitted to the bar in good and

regular standing.

So if you are admitted to the bar but you are under

suspension, you cannot practice law.

Or if you have failed to comply with MCLE requirement, or

not paid the IBP dues.

PRACTICE OF LAW LIMITED TO LAWYERS

Why is the practice of law limited to lawyers?

Because of the complexity of procedure.

To protect party litigant, because of the complex nature of

judicial proceedings; to protect public interest through

assuring that judicial proceedings takes place with dispatch

without sacrificing justice and efficiency.

SANCTIONS FOR UNAUTHORIZED PRACTICE OF LAW

1. injunction

2. criminal prosecution

3. damages

4. denial of right to fees

Case:Manangan vs CFI

A person masqueraded as a lawyer using the name of a

dead lawyer. He was found guilty of CONTINUOUS

FRAUDLENT MISREPRESENTATION and HIGHLY IMPROPER

CONDUCT tending directly to impede, obstruct, degrade and

make a mockery of the administration of justice.

So he was adjudged contempt of court, severely censured

and sentenced to suffer three months in prison.

SHARI’A COURTS AND LAWYERS

Shari’a lawyers because there’s a muslim code of personal

laws, that are different from the Family Code of the

Philippines.

Under the law we have the Shari’a courts which have

jurisdiction when it comes to cases involving the application

of the Muslim Code or Personal Laws.

SHARI’A BAR EXAMS

And to practice before the Shari’a courts, you have to be a

Shari'a lawyer. To be one, you have to pass the Shari’a bar

exams.

SHARI’A LAWYER MUST ALSO PASS REGULAR BAR EXAM TO

PRACTICE IN REGULAR COURTS

Can a Shari’a lawyer who is a bachelor of laws graduate but

has not passed the regular bar exams appear as counsel

before the RTC? Even if both parties of in the RTC are

Muslims and the case involves the application of Muslim

Code or Personal Laws?

NO.

Shari’a lawyers who have not passed the regular bar exams

can only practice before the Shari'a courts.

To be able to practice in the regular courts, they should

also pass the SC bar exams.

MUST PASS SHARI’A BAR EXAMS TO PRACTICE IN SHARI’A

COURTS

In the same way that if you have passed the bar exams and

you not passed the Shari'a bar, you cannot appear before

the Shari'a courts.

APPEARANCE PRO HAC VICE

Appearance by a lawyer who is not licensed to practice in a

jurisdiction, but only in connection to a particular case. He

may be allowed by courts under limited circumstances if the

appearance is only in an isolated case and no compensation

is charged for the service.



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APPEARANCE IN PROPRIA PERSONA/PR SE PRACTICE

Appearance in propria persona or pro se practice.

This is appearance in court by a non lawyer for himself and

without the assistance of another lawyer.

So a party to a case represents himself without the assistance

of a counsel.

ALLOWED BY THE CONSTITUTION

Is this allowed?

YES. No less than the constitution says the due process

clause. There is right to be heard by himself or by counsel.

The constitution does not say by himself or by a counsel.

ALLOWED BY RULES OF COURT

Rules of court says, every pleading must be signed by the

party or the counsel representing him. So anybody, even if

you are not a lawyer.

Case: In re Boromeo

SC said while pro se practice is allowed, it is not advisable.

A little learning is a dangerous thing. He who acts as his own

lawyer has a fool for a client.

Because Boromeo here was a non lawyer but too litigious

for his own good. He had a little legal knowledge.

He borrowed from a bank and had real estate mortgage

over his real property. He was not able to pay so the bank

foreclosed. He sued the bank, but he lost. Then he sued the

bank manager, but he lost again. He also sued the new bank

managers and the clerks in the bank, he still lost. Different

cases, same cause of action.

He also got very dissatisfied how the courts handled his

cases. So he sue the clerk of court, judges, justices in CA and

SC. He also filed administrative cases in the opposing

counsel.

SC finally had to put a stop to everything and cited him on

contempt.

Anybody as long as you are a party can represent himself

without a counsel.

NOT ALLOWED TO CORPORATIONS

Pro se practice however is not applicable to corporations.

San Miguel corporation cannot appear for himself. OW it

will circumvent the prohibition of corporate practice of law.

If you are a corporate litigant, you cannot engage in prose

practice.

NON LAWYERS AUTHORIZED TO APPEAR BEFORE THE

COURT

Are there non laywers who can appear before the court?

GR: practice of law is limited to lawyers.

EXEPTIONS:

1. Before the MTC

GR: a non lawyer can represent a party

EXPT: criminal case

EXPT2: in localities where there are no lawyers, non

lawyer may represent a party in a criminal case

2. Senior laws student

-if you are enrolled in a recognized law school’s clinical

education program approved by SC.

-before what court may you appear?

-any court, any tribunal or agency, even before SC

-PVDD: If you appear before RTC, you must always be

accompanied by supervising lawyers in all appearances

3. Labor code

4. Cadastral court

-Under the Cadastral Act, an on non lawyer may

represent a claimant before a Cadastral court

5. DARAB

PUBLIC OFFICIAL WHO CANNOT PRACTICE LAW

A. ABSOLUTE PROHIBITION

Who are the public officials who cannot practice law? When

we say practice law, it means the prohibition is absolute.

1. judges and justices

2. other official employees of the superior courts

3. OSG official and employees

4. government prosecutors

5. president

6. vice president

7. members of the cabinet, their deputies and assistants

8. commissioners of the constitutional commissions

9. ombudsman and their deputies

10. governors, city and municipal mayors

11. those prohibited under special laws

-RA 6713 sec 7 par 2



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B. RELATIVE PROHIBITION

Who are the public official who have restrictions? They can

practice law but with restrictions?

1. senators and congressmen

-they can practice law, but they cannot personally appear

2. sangunian members and councilors

-under LGC

-restrictions:

a. civil case – cannot appear as counsel before any

court case wherein LGU or any office, agency or

instrumentality of the government is the adverse party

b. criminal case – cannot appear as counsel wherein an

officer or employee of national or local government is

accused of an offense committed in relation of his

office

c. administrative case – cannot collect any fee for the

appearance in the administrative proceedings involving

the LGU of which he is an official.

d. administrative case – cannot use property and

personnel of the government

-EXPT when the sangunian member concerned is

defending the interest of the government

3. retired judges and justices

-receiving pension from the government

-restrictions:

a. civil case – cannot act as counsel in which the

government or any of his subdivisions or agency is the

adverse party

b. criminal case – cannot act as counsel wherein an

officer or employee of the government is accused of an

offense in relation to his office

LAWYERS NOT ALLOWED TO APPEAR BEFORE THE COURT

(!!!)

1. public officials who are absolutely prohibited from the

private practice of law

2. public officials who can practice law but with restrictions

3. before the small claims court case

4. before an agency where lawyers are not allowed to take

part of the proceedings

a. Lupon Tagapamayapa during barangay proceedings

DEFINITION OF TERMS

PRACTICE OF LAW

BOCEROS

-another word for counsel, attorney or abogado

BAR

-whole body of lawyers

BENCH

-whole body of judges and justices

BAR ADMISSION

-the process or act by which one is licensed to practice in

courts of particular jurisdictions after requiring certain

requirements such as:

a. bar examination

b. period of residency

c. admission on grounds of reciprocity

-here in the Philippines, the requirement is bar examination

ATTORNEY IN FACT

-not all attorneys in fact are lawyers

COUNSEL DE OFICIO

-a counsel appointed or assigned by the court from among

the members of the bar in good standing, who by reason of

their experience and ability may adequately defend the

accused.

-note, under the rules of court, in localities where members

of the bar are not available, the court may appoint any

person, resident of the province and of good repute,

propriety and ability to defend the accused. So he can be a

non lawyer.

ATTORNEY AD HOC

-a person named or appointed by the court to defend an

absentee defendant in a suit in which the appointment is

straight

ATTORNEY OF RECORD

-one who has filed a notice of appearance and hence is

formally mentioned in the records as the official lawyer of

the party.

COUNSEL OF RECORD

-procedurally, there is the entry of appearance as counsel

OF COUNSEL

-to distinguish them from attorneys of record, associate

attorney are referred to as of counsel

-that definition is the same as collaborating counsel

-another definition is that he is of venerable member of the

firm



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LEAD COUNSEL

-the one who is primarily charged with the direction and

management of the case; because the litigant could hire a

battery of lawyers, but there could only be one lead counsel

HOUSE COUNSEL/CORPORATE LAWYERS/IN HOUSE

LAWYERS

-lawyer who acts as attorney for business, though carried as

an employee of the business and not as an independent

lawyer

BAR ASSOCIATION

-association of members of the legal profession, like IBP,

Young Lawyers Association of Cebu, YLAC, SELYA, FIDA

AMICUS CURIAE

-friend of the court

-with strong interest in or views with the subject matter of

an action, but not party to the action

-how does one become an amicus curiae?

-the usual practice is by invitation of the court, because if

you are well known of your expertise of a particular subject

matter where the court requires your assistance or opinion,

the court will invite you to be an amicus curiae.

-you can also petition the court to be an amicus curiae.

AMICUS CURIAE PAR EXCELLENCE

-it is a bar association that appears in a the court as amicus

curiae

ADVOCATE

-the general and popular name for a lawyer who pleads in

behalf of someone else

BARRISTER (ENGLAND)

-somebody entitled to practice law as an advocate or

counsel before the superior court

SOLICITOR (ENGLAND)

-person prosecuting or defending suits in the course of

chancery

-one who practices in equity courts

SOLICITOR (PHILIPPINES)

-one who practices both in courts of law and equity

-lawyers who are connected with the OSG

-what does the OSG do?

-represent the republic of the Philippines in cases

PROCTOR (ENGLAND)

-formerly in ecclesiastical courts whose duties and business

corresponds to those of an attorney or solicitor

TITULO DE ABOGADO

-Case: Cui vs Cui

-it means not the mere possession of the academic degree

of bachelor of laws but membership in the bar after due

admission thereto qualifying one for the practice of law.



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June 23, 2011

Four fold duty of the lawyer to the

1. Society

2. Bar

3. Client

4. Court

DUTY OF THE LAWYER TO THE SOCIETY CHAPTER I. THE LAWYER AND SOCIETY

CANON 1 CANON 1 - A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW OF

AND LEGAL PROCESSES.

If there is somebody who must obey the law first, it should be

the lawyers.

LAWYER’S OATH

Lawyer’s oath is like a capsule form of the entire CPR.

-NOT TO UNDULY DELAY A CASE

Case: Del Mundo vs Lim

The lawyer was reprimanded when he used his expertise to

unjustly and unnecessarily delay a case.

-NOT TO DELAY ANY MAN FOR MONEY OR MALICE

Because again, the legal profession is not a money making

trade.

A lawyer may not delay a case just because is not paid well.

It is expected by him.

But if a lawyer is deliberately not paid, what should the

lawyer do?

It is a ground for withdrawal for counsel. And of course,

you can collect attorney’s fees.

What do you call a suit filed by a lawyer for the collection

of attorney’s fees?

SUIT SIT.

-DO NO FALSEHOOD

That’s elf explanatory.

CANONS OF PROFESSIONAL ETHICS

Canons of professional ethics provides that lawyer’s highest

honor is found in a deserved reputation for fidelity to

private trust and public duty as an honest man and as

patriotic and loyal citizen.

DUTY TO DISCOURAGE LAW SUITS

The lawyer has the duty to society to discourage law suits.

Corollary to this, the lawyer is encouraged to utilize

alternative dispute resolution modes to abbreviate and

expedite proceedings.

A lawyer shall not for any corrupt motive or interest

encourage any suit or proceedings, or delay any man’s

cause.

CRIME OR TORT OF MAINTENANCE

It is the intermeddling of uninterested party to encourage a

lawsuit.

Examples:

a. volunteering advise to bring lawsuit

-except when ties or relationship of trust make it your duty

to do so

b. hunting up defects in titles

c. employing agents and runners

-paying direct or indirect rewards to those who bring or

influence in bringing the case to the office

d. searching for unknown heirs and soliciting their

employment

JUSTIFIABLE LITIGATION VS UNJUSTIFIABLE LITIGATION

What the rules prohibit is the lawyer encouraging

unjustifiable litigation.

The lawyer must decline a case when he is convinced that it is

intended merely to harass or to injure the opposite party or

to work oppression.

Example. You are just filing a countersuit just for gaining a

leverage against other party, even if that countersuit has o

merit. That is unjustified.

SUMMARY OF LAWYER’S DUTY TO SOCIETY

Duties of a lawyer to society:

1. Duty to uphold the constitution and obey law

2. Duty not to engage in unlawful conduct

3. Duty not to counsel illegal activities

4. Duty not to encourage lawsuits

5. Duty to encourage amicable settlement



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BARRATRY

Barratry – the offense of frequently inciting and commenting

quarrels and suits and then offering the services to one of

the parties.

AMBULANCE CHASING

Ambulance chasing – figuratively speaking, this is an act of

the lawyer chasing the victims of an accident, then

convincing them to file a case and offering the services to

the victim.

Are they ethical?

No. Because they breed litigation.

BARRATRY VS AMBULANCE CHASING

But you must distinguish between the two. They are not

technically the same.

B: refers to any actions

AC: refers only to personal injury actions

B: refers to suits before any forum

AC: refers to cases brought before the courts

RECOGNIZED EVILS IN BARRATRY AND AMBULANCE

CHASING

What are the recognized evils of ambulance chasing? And

these evils are also recognized in barratry…

1. fomenting of litigation

Thus resulting to the burden upon the courts; it will clog

all the more the already clogged court dockings.

2. subornation of perjury

3. mulcting of innocent persons by judgments upon

manufactured causes of action

4. defrauding of injured persons having proper cause of

action but ignorant of their legal right or court procedures

CANON 2

CANON 2 - A LAWYER SHALL MAKE HIS LEGAL SERVICES AVAILABLE IN AN EFFICIENT AND CONVENIENT MANNER COMPATIBLE WITH

THE INDEPENDENCE, INTEGRITY AND EFFECTIVENESS OF THE PROFESSION.

Canon 2 is making available efficient legal service.

CANON 2.01 Rule 2.01 - A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed.

DEFENSELESS AND OPPRESSED

Who are the defenseless or the oppressed?

He is a person who is defenseless or oppressed due to:

1. poverty

2. disability

3. ignorance

4. etc.

Lawyers must not reject the causes of these persons without

valid cause.

ACCEPTABLE JUSTIFIABLE CAUSES TO REFUSE SERVICES

What are the acceptable justifiable causes to refuse services

to the needy?

Rule 14.03 Rule 14.03 - A lawyer may not refuse to accept representation of an indigent client if: (a) he is not in a position to carry out the work effectively or competently; (b) he labors under a conflict of interest between him and the prospective client or between a present client and the prospective client.

SAME DEGREE OF DILIGENCE FOR PAYING AND NON PAYING

CLIENTS

At all times lawyers must exercise the same degree and

standard of diligence accorded to paying clients.

Because legal aid is not a matter of charity, but a public

responsibility.



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BAR MATTER 2012 – PROPOSED RULE OF MANDATORY LEGAL

AID SERVICE FOR PRACTICING LAWYERS

REQUIREMENT

What does it require practicing lawyers to do?

All practicing lawyers are required to render a minimum of

60 hours of free legal aid services to indigent litigants in a

year.

ACCOUNTING THE 60 HOURS

How do you account for the 60 hours?

Clerks of court and the IBP legal aid chair person of the IBP

Legal Aid chairperson of the IBP chapter are designated to

coordinate with a lawyer for cases where he will render free

legal aid service.

And they will be the one who will give certification that you

have render the number of hours.

LAWYERS DEEMED EXCLUDED FROM TERM PRACTICING

LAWYERS

But there are lawyers who are deemed excluded from the

term practicing lawyer under this bar matter.

1. Government employees and incumbent elective officials

not allowed by law to practice

2. Lawyers who by law are not allowed to appear in court

3. Supervising lawyers of students enrolled in law student

practice in duly accredited legal __ of law schools

4. Lawyers of NGOS and PO’s organization who by nature of

their work already render free legal work for indigent and

pauper litigants

5. Lawyers not covered under the first 3 paragraphs including

those who are involved in the private centers but do not

appear for and in behalf of parties in courts of law and quasi

judicial agencies

INDIGENT AND PAUPER LITIGANTS

-WHO ARE PAUPER LITIGANTS

Who are indigent and pauper litigants? Does it have to be

your client in order for you to be able to able to comply with

the mandatory legal aid service?

Indigent and pauper litigants are those:

1. whose gross income and that of his immediate family will

not exceed an amount double the monthly minimum wage

of an employee AND

2. those who do not own any real property.

So if your gross income is very little but they have property,

you are not a pauper litigant.

-WHAT ARE THE EXEMTIONS

They are exempt from payment of:

1. docket fees

2. lawful fees

3. transcripts of stenographic notes

PENALTIES FOR NON COMPLIANCE OF MANDATORY LEGAL

AID SERVICE

Penalty of 4k, plus the lawyer shall have a not in good

standing status and not allowed to appear in court or any

quasi judicial body as counsel for a period of 3 months.

A lawyer who fails to comply with the rules for at least 3

consecutive years is subject to disciplinary proceedings and

be suspended from the practice of law for 1 year.

STATUS OF THE RULE

But what id the status of this rule?

This is the proposed rule and it has already been approved

by the SC, but there are no implementing rules and

regulations yet.

So until the passage of the IRRs, it is still not being

implemented.



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CANON 2.02 Rule 2.02 - In such cases, even if the lawyer does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary to safeguard the latter's rights.

“IN SUCH CASES”

It refers to cases, where a lawyer has just grounds to decline

a case.

DUTY IF DECLINE ENGAGEMENT

So even If the lawyer declines engagement as lawyer for a

valid reason, he still must give immediate legal assistance.

You might advice him to post bail, if the crime is bailable or

you may refer him to somebody who can help.

Do not leave the client out in the cold unprotected.

CANON 2.03 Rule 2.03 - A lawyer shall not do or permit to be done any act designed

primarily to solicit legal business.

SOLICITATION will be discussed later on.

CANON 2.04 Rule 2.04 - A lawyer shall not charge rates lower than those customarily

prescribed unless the circumstances so warrant.

MINIMUM RATE ONLY

IOW there’s floor rate or a minimum rate, but there is no

maximum rate.

CUSTOMARILY PRESCRIBED RATE

How do you know what is the customarily prescribed rate?

Every IBP chapter has its schedule of fees. And there in the

schedule of rates you will find the minimum rates for

services of lawyers.

PURPOSE

Why?

To avoid degrading competition among lawyers.

IMPROPER SOLICITATION

Case: Ulep vs Legal Clinic

Was there improper solicitation here?

Yes. There were newspaper articles on divorce,

annulment…

There was also a corporation practicing law, the Legal Clinic

Inc. this is also a circumvention on the prohibition of

corporate practice of law.

CANON 3

CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES

SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE INFORMATION OR STATEMENT OF FACTS.

LAYERS GENERALLY CANNOT ADVERTISE

Can lawyers advertise themselves?

GR: NO.

But there are exceptions.

FORMS OF PERMISSIBLE ADVERTISEMENTS

Case: Ulep vs Legal clinic

1. writing legal articles

-for legal publications in which he gives information upon

the law

-but he cannot accept employment from such publication

to advice inquiries in respect to individual rights of

persons

2. law lists

-but only brief, biographical and informative data

-no list of number of cases won or lost

3. professional cards

4. notice to other local lawyers and publishing in a legal

journal of one’s availability

5. free legal services to indigent even when broadcasted over

the radio, or through circulation of printed matter to the

general public

6. simple announcement of the opening of a law firm or of

changes in partnership, firming or office address for the

convenience of the profession

7. phone directory

SOLICITATION

Advertisement is different from solicitation. There are

permissible forms of advertisement, but solicitation is

malpractice, as provided under rule 138 sec 37 of the Rules

of Court.

-The law prohibits lawyers from soliciting cases for the

purpose of gain, either personally or through paid agents or

brokers.



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CANON 3.01 Rule 3.01 - A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services.

NO FALSE, MISLEADING OR ASSUMED NAME

If your surname is Best, can you call your law office – BEST

LAW OFFICE?

YES. That is your surname.

CANON 3.02 Rule 3.02 - In the choice of a firm name, no false, misleading or assumed name shall be used. The continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased.

CONTINUED USE OF NAME OF DECEASED PARTNER

Name of a deceased partner; can you still continue using it?

It is permissible provided that the firm indicates in all his

communications that the said partner is deceased.

This rule abandoned the doctrine of the case of In re Sycip.

Later on in the rules of CPR, it says that you can continue.

How?

Like in your letterhead, you can put there ‘deceased’ or a

cross beside the name of the deceased partner.

REASON

Why is it allowed?

The SC recognizes the fact that many law firms have gained

good will and good reputation over a long period of time

because of the joint effort of all the partners.

And for the law firm to lose some of its good will just

because of the accident of death of one of the law partners

could be inequitable. So they are allowed to carry the name

of the ceased partner.

CANON 3.03 Rule 3.03 - Where a partner accepts public office, he shall withdrawal from the firm and his name shall be dropped from the firm name

unless the law allows him to practice law currently.

DROP NAME ONLY IF NOT ALLOWED BY LAW TO PRACTICE

CONCURRENTLY

So this is not a GR. Just because a partner has become a

public official does not mean that his name will have to be

dropped. You have to determine further if the law or

constitution allows the public official to practice law

concurrently.

If the law allows it, then no need to drop his name.

If one of the partners becomes a judge, will his name be

dropped from the law firm name?

Yes. Because the law absolutely prohibits private practice

of law by judges.

If the partner is elected a senator, should you drop him from

the law firm name?

NO. Because the constitution allows them to practice law.

The only prohibition is personal appearance.

USE OF FOREIGN LAW FIRM NAME

Filipino lawyers cannot practice law under the name of a

foreign law firm, as the latter cannot practice law in the

Philippines and the use of a foreign law firm name in the

country is unethical.

In practice of law, remember that one of the requirements in

the practice of the bar is Filipino citizenship.

So much more that there can be no foreign law firms.

RULE 3.04 Rule 3.04 - A lawyer shall not pay or give anything of value to representatives

of the mass media in anticipation of, or in return for, publicity to attract legal business.



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CANON 4 CANON 4 - A LAWYER SHALL PARTICIPATE IN THE DEVELOPMENT

OF THE LEGAL SYSTEM BY INITIATING OR SUPPORTING EFFORTS IN LAW REFORM AND IN THE IMPROVEMENT OF THE

ADMINISTRATION OF JUSTICE.

LAWYERS SHOULD PARTICIPATE IN THE IMPROVEMENT OF

THE LEGAL SYSTEM

Lawyers should participate in the improvement of the legal

system. How? Who are in the position to first discover

loopholes or imperfections in the law?

Logically the lawyers because they deal with the law

everyday. So they are the first ones to notice the flaws in the

law. and they are in the best position to contribute to the

improvement of the legal system. So lawyers could lobby for

congress for the improvement of laws.

They present position papers or resolution for the

introduction of bills in congress.

Or, if there are rules of court that needs to be improved,

petition to SC for the amendment of the rules of court.

CANON 5 CANON 5 - A LAWYER SHALL KEEP ABREAST OF LEGAL DEVELOPMENTS, PARTICIPATE IN CONTINUING LEGAL

EDUCATION PROGRAMS, SUPPORT EFFORTS TO ACHIEVE HIGH STANDARDS IN LAW SCHOOLS AS WELL AS IN THE PRACTICAL

TRAINING OF LAW STUDENTS AND ASSIST IN DISSEMINATING THE LAW AND JURISPRUDENCE.

Keep abreast of legal developments and participate in

continuing legal education.

BAR MATTER 850 – MANDATORY CONTINUING LEGAL

EDUCATION

So we go to MCLE – Mandatory Continuing Legal Education.

By the term itself, it is mandatory. So no other choice but to

attend MCLE.

This is in line with the duty to be updated. Because the law is

never static. The law changes. Jurisprudence also changes

PURPOSE

Purpose of this rule is to ensure that throughout their career,

lawyers keep themselves updated with the law and

jurisprudence, maintain the ethics of the profession and

enhance the practice of law.

36 UNITS FOR EACH COMPLIANCE PERIOD OF 3 YEARS

So there are units to be completed in every compliance

period of three years.

And 36 units must be completed within each compliance

period

And the 36 units are further subdivided into these topics…

PERSONS EXEMPTED FROM MCLE

1. President

2. Vice president

3. Members of the cabinet

4. Secretaries of the executive department

5. Senators and house of representative members

6. Chief justice, associate justices of SC

7. Incumbent and retired justices of the judiciary

8. Incumbent court lawyers covered by the Philippine Judicial

Academy Program of Continuing Legal Education

Why are they exempt from MCLE?

Because they also have MCLE under the Philippine

judicial academy. They have their own form of MCLE

9. Solgen and assistant solgen

10. Government Corporate Council

11. Chair and members of constitutional commission

12. Ombudsman, deputy ombudsman and special prosecutor

13. Heads of government agencies exercising quasi judicial

functions

14. Incumbent Deans, bar reviewers and professors of law

having teaching experience of at least 10 years in accredited

law schools

15 Governors and mayors



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TN of the others not included in the enumeration:

1. Those not in law practice either private or public

2. Those who have retired from law practice with the

approval of IBP Board of Governors

Other good causes for exemption or modification for the

requirement:

1. Verified request for exemption on the grounds of:

a. Physical disability

b. Illness

c. Post graduate study abroad

d. Proven expertise in law

CONSEQUENCES FOR NON COMPLIANCE

Listed as a DELINQUENT MEMBER by the IBP board of

governors upon the recommendation of a committee of

MCLE.

EFFECT OF BEING LISTED AS A DELINQUENT MEMBER

What is the effect if you are listed as a delinquent member?

It is administrative in nature.

So there could be penalties in the end.

BAR MATTER 1922

INDICATION OF MCLE COMPLIANCE CERTIFICATE NUMBER

IN PLEADINGS

This bar matter requires that all lawyers in all pleadings that

they file indicate their MCLE compliance certificate number.

This is to give more teeth to the rule on MCLE.

CONSEQUENCE FOR NON COMPLIANCE

Failure to disclose the required information would cause the

dismissal of the case and the expunction of the pleading

from the records.

July 12, 2011

CANON 6 CANON 6 - THESE CANONS SHALL APPLY TO LAWYERS IN

GOVERNMENT SERVICES IN THE DISCHARGE OF THEIR TASKS.

APPLICATION OF CPR TO GOVERNMENT LAWYERS

CPR applies to lawyers in the government service. You can

even say that lawyers in the government service are

subjected to more rules and prohibitions.

CPR applies to them as well as other relevant laws like:

1. anti graft and corrupt practices act

2. RA 6713 - code of conduct and ethical standards for public

officials and employees

NOT APPLY TO INCUMBENT JUDGES

How about lawyers who are incumbent judges? Are they

covered by the CRP?

NO. But they are covered by code of judicial conduct, of the

old and the new.

-UNDER THE SUPERVSION OF SC, NOT IBP

Because they are not covered by the CPR, judges cannot be

investigated by the IBP. The IBP has no authority. You must

go directly to SC.



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RA 6713 – CODE OF CONDUCT AND ETHICAL STANDARDS FOR

PUBLIC OFFICIALS AND EMPLOYEES

PUBLIC OFFICIALS

In, RA 6713 who are the public officials? (b) "Public Officials" includes elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service, including military and police personnel, whether or not they receive compensation, regardless of amount.

So even if the compensation is very insubstantial still it is

covered by the term Public Official.

If you are a legal consultant to a local government unit. You

do not charge anything, or you charge only for a very small

sum, that still makes you a public official.

NORMS IN DISCHRAGE OF OFFICIAL DUTIES

What are the norms that should be observed in the discharge

and execution of official duties?

-PROHIBITION AGAINST PRIVATE PRACTICE OF LAW

Sec 7 par b2. This is a prohibition.

Section 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute 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:

(2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; or

Government lawyers are prohibited to engage in private

practice unless authorized by the constitution or law.

And even if authorized by the constitution or law, the

government lawyer must see to it that such practice will not

conflict or tend to conflict with their official functions.

-PERIOD OF PROHIBITION

This prohibition will continue for one year after their

separation from office.

So even if they resign or retire, that prohibition applies.

CANON 6.01 Rule 6.01 - The primary duty of a lawyer engaged in public prosecution is not

to convict but to see that justice is done. The suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action.

LAWYERS COVERED; THEIR DUTY

What is the duty of lawyers engaged in public prosecution?

Who are the lawyers that we are referring to here in 6.01?

We are referring to fiscals and public prosecutors.

The primary duty is not to convict, but to see to it that

justice is done.

So if you are a fiscal, you should not be so much concerned

of your statistics. Your wins and loses.

DUTY OF THE PUBLIC PROSECUTOR BEFORE CASE IS FILED IN

COURT – SEEK EQUAL AND IMPARTIAL JUSTICE

Even before the case is filed in court, what is the task of the

public prosecutor?

In the rules of court, before the case is filed, there is a

preliminary investigation.

And the as the officer conducting preliminary investigation,

the public prosecutor exercises a quasi judicial position. He

determines WON there is probable cause to warrant

criminal prosecution.

If in the process of preliminary investigation the fiscal sees

that there is no probable cause, the fiscal must resolve that

the complaint be dismissed.

So the prosecutor should seek equal and impartial justice. He

should be as much concern with seeing that no innocent

man shall suffer as with seeing that no guilty man escapes.

IF CASE HAS BEEN FILED AND EVIDENCE SURFACES IN FAVOR

OF THE ACCUSED

What if the case is already filed and later on the fiscal files

evidence that absolves the accused, the fiscal may file a

motion before the court for the dismissal of the action.

If case is on appeal then recommend to the appellate court

the acquittal of the accused.



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CANON 6.02 Rule 6.02 - A lawyer in the government service shall not use his public

position to promote or advance his private interests, nor allow the latter to interfere with his public duties.

This is self explanatory.

MISCONDUCT BY PUBLIC OFFICIAL WHO IS ALSO A LAWYER

MISCONDUCT OF GOVERNMENTAL DUTY – GR NOT

DISCIPLINED AS LAWYER

GR a lawyer who holds a government office may not be

disciplined as member in bar for misconduct in the discharge

of the duty as a government official.

Example. A barangay captain who is a lawyer at the same

time. If he commits misconduct in the exercise of his

function as barangay captain, can he be disciplined as a

member of the bar?

GR, NO. you discipline him as a barangay captain.

Of course, you still have remedies. You can file

administrative case against him; not as a lawyer, but as

barangay captain.

EXCEPTION

But there is an exception. If the misconduct is of such

character as to affect his qualification as a lawyer, or to

show moral delinquency, they he may be disciplines as a

member of the bar.

Example. Let’s say that the barangay captain refused to issue

a barangay clearance to a certain person. The allegation is

there’s no sufficient justification for the refusal.

That can be misconduct of barangay captain. Generally, you

do not use that as a ground to disbar him. But you can use

that as a ground to discipline him as a barangay captain.

Example. However, if the barangay captain mauled a

constituent until he is black and blue. The injuries

incapacitated the victim for one year.

There could be misconduct that can also go to his character

as a lawyer. It could affect particularly the qualification of

good moral character.

Can by that act also be a ground against him for disbarment

or suspension as a lawyer?

YES. In that case, the exception applies.

Also be a ground against him sfor disbarment or suspension

as a lawyer

Yes.

In that case the exception applies

CANON 6.03 Rule 6.03 - A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service.

PERPETUAL PROHIBITION

If you read that, it’s quite limiting. There’s no time limitation.

This is forever.

In RA 6713, there is only a one year prohibition. But in canon

6.03, there perpetual prohibition.

‘MATTER’ AND ‘INTERVENED’

Case: PCGG vs SB GR 151805 (2005)

This talks about canon 6.03.

PCGG talks about Atty Estelito Mendoza during the time of

Marcos he was the solicitor general.

There was a bank called the General bank and it became

insolvent so the Central Bank decided to have it liquidated. It

asked for assistance of SolGEn to file for petition for

liquidation before the CFI. Since it was an initiatory pleading,

Mendoza signed it as the sitting SolGen.

After a while, Gen Bank was sold at public bidding and the

winning bid was that of Lucio Tan’s group. It eventually

became Allied Bank.

Then there’s the EDSA revolution and a new president was

in power. One of the first acts of Aquino was to create the

PCGG. PCGG filed a sequestration case against the Lucio Tan

group; the allegation being Lucio Tan and his group were

cronies of Marcos. And among the properties was Allied

Bank.

So Lucio Tan Group hired Mendoza as their lawyer who was

then not the SolGen anymore, and he has returned to

private practice.

PCGG questioned the appearance of Mendoza as counsel of

Lucio Tan because as SolGen he handled the liquidation case

of GenBank, citing 6.03.

SC said we have to define ‘matter’ and ‘intervened’.

What is matter as contemplated in 6.03?

MATTER is any discrete, isolatable act as well as identifiable

transaction or conduct involving a particular situation and a

specific party, and not merely an act of drafting, enforcing or

interpreting government r agency procedures, regulations or

laws or briefing abstracts principles of law.

So let’s go to the matter that Mendoza Handles as SolGen

in the liquidation case. What was the matter that he

handled? Did he really decide on the liquidation of

GenBank?

NO. It was central bank who had decided already to

liquidate the GenBank. Central Bank just asked for the

assistance of the OSG in filing the petition for liquidation.

And under the law, what is the role of the court in

liquidation of insolvent companies? Just to assist the central

bank in determining the legitimacy of claims against the

bank.



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So the court there is not really sitting as an adjudicator of

the litigants, but rather as an assistant of the central bank in

studying the claims of the central bank.

SC said that the petition for liquidation, it being an

initiatory pleading had to be signed by the SolGen himself.

But that is the only participation of Mendoza insofar as the

records are concerned. After that, he did not handle the

case.

And this is the most heavy reason, in liquidation, the

process or the procedure is detailed already in the law. And

what Medoza did was to advice the bank as to the

procedure for liquidation under the law.

MATTER must not merely be an act of drafting enforcing

government or agency procedures, regulations or laws.

SC said if ever Mendoza had any participation, it was just to

interpret government regulations or laws. And that is not

the matter contemplated in 6.03.

‘INTERVENTION’ as contemplated under 6.03 is an act of

the person who has the power to influence the subject

proceedings.

Did Mendoza have an influence over the proceedings?

No. He merely asked the court for assistance in the

litigation. But as to whether the bank should be liquidated

or not, that is already decided by the central bank.

Second, such intervention cannot be insubstantial,

insignificant or innocuous.

As already discussed by SC, it was quite insubstantial; just

the signing of the initiatory pleading. There being no other

indicator in the records that he had direct participation on

the case.

So did SC disqualify him as counsel of Lucio Tan?

No. Because you have to consider 6.03 in the light of

definition of matter and intervention.

SC was able to explain very well in the case on the definition

of matter and intervention. Because just looking at 6.03, it

can be very oppressive to government lawyers.

PHENOMENON OF THE REVOLVING DOOR

How is it oppressive?

SC said, it is an accepted fact that the salary of government

lawyers is not as high as that of the private practitioners.

So the only card that the government has to attract

talented lawyers is to invite them to government service,

defer big income for the mean time; let them acquire

contact, information and influence, and when they leave

government service, they will have a profitable private

practice.

This is what they call the phenomenon of the revolving

door.

It has its disadvantages; which is why we have 6.03. But at

the same time SC said that we have to balance.

Because if you apply this generally without any definition of

matter and intervention, it can be quite hard for the lawyer

to find employment elsewhere.

RA 3019 SEC 3D

Accepting or having any member of his family accept

employment in a private enterprise which has pending

official business with him, during pendency thereof and

within 1 year after its termination.

So this is a corollary provision.

RA 6713 SEC7B

Cannot own, control, manage, or accept employment as

officer, employee, consultant, counsel, broker, agent,

trustee or nominee in any private enterprise regulated or

supervised or licensed by their office. Unless expressly

allowed by law.



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CHAPTER II. THE LAWYER AND THE LEGAL PROFESSION

In a nutshell, these are the lawyer’s duties to the legal

profession:

1. uphold the integrity and dignity of the legal profession and

support the IBP

2. be courteous fair and frank to fellow lawyers

3. not to assist in the unauthorized practice of law

4. not to encroach upon the employment of another lawyer

CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND

SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR.

CANON 7.01 Rule 7.01 - A lawyer shall be answerable for knowingly making a false

statement or suppressing a material fact in connection with his application for admission to the bar.

CONCEALMENT OR MISREPRESENTATION

This talks about concealment and misrepresentation.

You conceal if suppress a material fact.

You misrepresent if you knowingly make a false statement.

-EFFECT

If you have not taken the bar, the person is denied taking

the bar.

If he has passed the bar but not taken the oath, he will not

be allowed to take the oath.

If he has already taken the oath, he will be striken from the

law of attorneys.

-CONCEALMENT

-Case: In re Ramon Galang

He said under oath that he has not been charged of offense

before a fiscal, judge or other officers, or accused of,

indicted for or convicted before any court or tribunal of any

crime involving moral turpitude, nor is there a pending case

against him.

But in reality, there is a criminal case of slight physical case

against him still pending. Because of that concealment, he

was allowed to take the bar 7 times. After the 7th

attempt,

he passed and took the oath. But upon the discovery of the

concealment, his licensed was revoked.

His defense was that it was slight physical injury, so it does

not involve moral turpitude.

SC says that an act involves moral turpitude not because it

is punished by law but because of its inherent nature.

Jurisprudence has identified some crimes involving moral

turpitude. As for the other crimes, SC said to just disclose

everything and it is up to them to determine whether it

involves moral turpitude or not.

SC also said that the mere act of concealment is already an

indication of lack of good moral character.

-MISREPRESENTATION

-Case: Dioa vs Martinez

He said that he finished associate in arts degree when he

had not. He was striken from the roll.

CANON 7.02 Rule 7.02 - A lawyer shall not support the application for admission to the bar

of any person known by him to be unqualified in respect to character, education, or other relevant attribute.

In the same way that a lawyer, cannot in his own application

make concealments and misrepresentation, the lawyer must

not also support his application to the membership of the

bar anyone who the lawyer knows is unqualified.

If there is a violation, it is GROSS MISCONDUCT IN OFFICE

under rule 138, sec 27 of the Rules of Court.

CANON 7.03 Rule 7.03 - A lawyer shall not engage in conduct that adversely reflects on his

fitness to practice law, nor shall he whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.

PUBLIC OR PRIVATE LIFE

The lawyer’s pubic or private life is open to the scrutiny of the

courts.

An administrative case is filed against the lawyer charging the

lawyer for gross immorality. Because according to the

complaint, the lawyer is maintaining a kirida.

His defense is that it does not affect his personal skills.

This is not a proper defense. Because the lawyers conduct

goes to his private and public life.

TN that you cannot just put good moral character in the

public life of a lawyer. Good moral character is all

embracing.

DUTY TO UPHOLD THE HONOR OF PROFESSION

How?

1. Lawyers must expose without fear and favor before the

proper tribunal, corrupt and dishonest conduct in the

profession.

-‘PROPER TRIBUNAL’

There can still be malice if instead of going to the proper

tribunal, the lawyer goes to the media to report a fellow

lawyer.

2. Accept without hesitation employment against a member

of the bar who has wronged his client.

3. Guard the bar against admission to profession of persons

with deficient moral characters.



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INTEGRATED BAR OF THE PHILIPPINES

-OFFICIAL STATE ORGANIZATION

It is an official state organization. It is mandated by the

rules of court and even the constitution.

-SC AUTHORIZED BY THE CONSTITUTION

The constitution authorizes the SC to issue rules and

regulation involving integration of the bar. And in response

to that mandate, the SC through the rules of court formed

the IBP.

-CONDITION PRECEDENT TO THE PRACTICE OF LAW

The IBP requires membership and financial support from all

attorneys as a condition precedent to the practice of law. So

without this you cannot practice law.

Rule 139-a of the rules of court created the IBP.

-PAYMENT OF MEMBERSHIP FEES

Case: In re Edillon

The lawyer refused to pay the annual dues and has been

delinquent for a long time.

He said bar institution is unconstitutional because it

violates his freedom of association, he is compelled to join

and association which he does not want to be a member of.

Second, he says it violates his right to property because he

is compelled to pay annual dues in exchange for his practice

of law.

SC said that bar integration is a valid exercise of police

power over an important profession.

Again the right to practice is a privilege and can always be

subjected to regulations and restriction. And bar integration

is a form of restriction so it is permissible.

SC has plenary power regarding the supervision to and

supervision of the practice of law.

Is it violative of the freedom of association? NO. SC says

integration does not make a lawyer a member of any group

of which he not already a member.

So it was not really the integration that made him a

member of the IBP. He became a member of IBP because he

passed the bar and took his oath as a lawyer. He is free not

to attend the meetings and activities of the IBP. So there’s

really no violation of the freedom of association.

The only compulsion is the payment of annual dues. The

costs of improving the profession should be shared by the

subjects and beneficiaries of the regulatory program of the

lawyers.

-WHAT DOES IBP DO?

What does the IBP do?

Give aid to indigents

Gives MCLE

Handles investigation of administrative cases against lawyers

To be able to do this, you need to give funds. So the IBP

needs money to make it operational.

-Case: Santos vs Llamas

The lawyer has not been paying annual dues for the reason

that:

a. he is semi retired

b. his main business is farming

c. he is a senior citizen

SC said that the exemption granted by RA 7432 to senior

citizens from paying individual income tax does not exempt

lawyers from paying IBP dues.

-IBP DISTINGUISHED FROM OTHER BAR ASSOCIATIONS:

IPB: compulsory membership; condition precedent to the

practice of law

BA: not compulsory

IBP: violation of rules is sufficient cause ofr disbarment or

suspension

BA: not applicable



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CANON 8 - A LAWYER SHALL CONDUCT HIMSELF WITH COURTESY, FAIRNESS AND CANDOR TOWARDS HIS PROFESSIONAL

COLLEAGUES, AND SHALL AVOID HARASSING TACTICS AGAINST OPPOSING COUNSEL.

This is the duty to be fair to his co lawyers.

CANON 8.01 Rule 8.01 - A lawyer shall not, in his professional dealings, use language which

is abusive, offensive or otherwise improper.

ALSO APPLICABLE TO PLEADINGS

This should also be applied to the pleadings filed.

Offensive pleadings are not allowed.

LANGUAGE APPLIED

So what should be the language applied?

Forceful but dignified.

Empathic but respectful.

CONSEQUENCES FOR VIOLATION

1. administrative liabilities

2. pleading may be expunged from the records

WANT OF INTENTION – NOT AN EXCUSE

The litigants are the clients should not be carried away.

Want of intention is not an excuse for the disrespectful

language use.

CANON 8.02 Rule 8.02 - A lawyer shall not, directly or indirectly, encroach upon the

professional employment of another lawyer, however, it is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel.

GENERAL RULE

Lawyers should not steal clients from other clients.

EXCEPTION however, it is the right of any lawyer, without fear or favor, to give proper

advice and assistance to those seeking relief against unfaithful or neglectful counsel

But if it is clear that the client is being abused by his counsel,

then the lawyer may take the cause of the hapless client.

CANNOT NEGOTIATE WITH OPPOSITE PARTY WITHOUT

COUNSEL

A lawyer should not negotiate with the opposite party

represented by a counsel without the latter’s knowledge or

presence.

CAN INTERVIEW WITNESS WITHOUT COUNSEL

But can a lawyer interview a witness without the other

lawyer? YES. Because it is a witness, not a party.

July 14, 2011 CANON 9 - A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY,

ASSIST IN THE UNAUTHORIZED PRACTICE OF LAW.

This canon has something to do with preserving the integrity

and dignity of the legal profession.

How can this be done?

A lawyer should not assist in the unauthorized practice of

law, whether directly or indirectly.

OW stated: Only those authorized to practice law should

practice law in this jurisdiction.

CANON 9.01 Rule 9.01 - A lawyer shall not delegate to any unqualified person the

performance of any task which by law may only be performed by a member of the bar in good standing.

So delegation to a:

1. non lawyer

2. suspended lawyer

3. disbarred lawyer

4. foreign lawyer

-is unethical

CANNOT DELEGATE TO ANOTHER LAWYER W/O CONSENT

This prohibits the delegation of legal work even with fellow

lawyers without the client’s consent.

REASON

This is because attorney-client relationship is based on trust

and confidence.

CANON 9.02 Rule 9.02 - A lawyer shall not divide or stipulate to divide a fee for legal

services with persons not licensed to practice law, except: (a) Where there is a pre-existing agreement with a partner or associate that,

upon the latter's death, money shall be paid over a reasonable period of time to his estate or to persons specified in the agreement; or

(b) Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; or

(c) Where a lawyer or law firm includes non-lawyer employees in a retirement plan even if the plan is based in whole or in part, on a profit sharing agreement.

GR: NOT SHARE LEGAL FEES

A lawyer must not share legal fees with non lawyers.

PURPOSE

This is to see to it that legal work is to be performed only by

lawyers.

Also, non lawyers are not under the administrative control

and supervision of the SC. How can we protect clients from

people who can take a bulk of legal fees but not subject to

regulation?

EXCEPTIONS

a. there is a pre-existing agreement that upon the lawyer’s

death, money shall be paid over a reasonable period of time

to his estate or to persons

b. completion unfinished legal business of a deceased lawyer

-sharing with the heirs of deceased lawyer

c. lawyer includes non-lawyer employees in a retirement plan

even if the plan is based in whole or in part, on a profit

sharing agreement



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CHAPTER III. THE LAWYER AND THE COURTS

CANON 10 - A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT.

DUTY TO COURT PREVAILS OVER OTHER DUTIES

Foremost, a lawyer is an officer of the court. The lawyer’s

duty to the court must prevail over his other duties. It even

prevails over the duty to his client.

REASON

Because the lawyer assists in the administration of justice,

being an officer of the court.

“CANDOR”

Being truthful and transparent.

Because the burden of the judiciary will be intolerable if we

cannot take by face value what is asserted by lawyers.

CANON 10.01 Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of

any in Court; nor shall he mislead, or allow the Court to be misled by any artifice.

CONCRETE CASES OF FALSEHOOD AS HELD BY SC

1. raising issues long laid to rest by final and executory

judgment, making it appear that it has not been ruled upon.

2. making it appear that a person long dead executed a deed

of sale

3. denying having received a notice to file brief, which denial

has been belied by the return card

4. presenting falsified documents before the courts

5. other analogous cases where lawyer makes untruthful

statements or actions before the court.

LIABILITIESON FALSE TESTIMONY

1. administrative liability

2. criminal liability – art 184 of RPC; knowingly offering in

evidence a false witness or testimony in any judicial or

official proceeding

Case: Yusuan vs Florido

The lawyer manufactured a CA resolution because the lawyer

was estranged from his wife and wanted to get the custody

of his children.

His defense was that he did not know that the resolution was

falsified.

SC says that there is a presumption that there being no

evidence on who authored the falsification then whoever

used, or possessed or utilized the false document is also

presumed to be the falsifier.

He used the CA resolution to force his wife and get the

assistance of NBI and police authorities.

CANON 10.02 Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the

contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved.

CANDID TO COURT

This is the duty of being candid to the court – not to

misquote provisions.

HOW TO QUOTE PROVISIONS

How do you quote provisions?

Must be VERBATIM.

If you paraphrase it, then indicate accordingly.

Provide the proper citation, which ideally should be from

the primary source.

CASES WHERE SC HELD AS UNETHICAL

1. citing as law an inoperative, repealed, amended provision

of law or overruled jurisprudence

2. asserting as facts something which has not been proven

-ex. still an issue

3. foisting a non existent rule

-inventing of own rule

4. attributing to the court a finding of fact which the latter did

not make and which is actually the version of supposed facts

of the lawyer



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CANON 10.03 Rule 10.03 - A lawyer shall observe the rules of procedure and shall not misuse

them to defeat the ends of justice.

DUTY TO HAVE A SPEEDY, FAIR AND EXPEDITIOUS

DETERMINATION OF CASES

Rules of court.

Instead of making the proceedings speedy and facts, some

lawyers use tools to delay the proceedings.

Case: Eternal Gardens Memorial Park vs CA

Agricultural land.

The case was Spouses Selin vs Central Dying Corporation. the

RTC decision was to the effect that the souses are the

rightful owners of the land so Central should deliver

possession and ownership. It went up to SC until it became

final and executory.

Eternal Gardens was the purchaser of the land from Central

while the case is pending. So Eternal Gardens contested over

the execution of the judgment by SC. So it went back to RTC

Eternal Opposed the writ of possession of the RTC. The

opposition was denied. They filed a MR, denied. They filed

petition for certiorari before CA, denied. They filed MR,

denied. They filed Petition for review in SC, denied. They

filed MR, denied. And all throughout the proceedings they

kept on litigating issues long laid to rest in the main case.

Not stopping there, they again went to CA and SC and had

had MRs. All were denied. They had another third cycle, all

denied.

SC said it has to stop. In the meanwhile the case was

protracted and the case was delayed due to the

unmeritorious petitions of petitioner. The case was dragged

on for 17 years. And the agricultural land became a

cemetery.

So here, technicalities were abused to the detriment of

prevailing parties.

As officers of the court, lawyers have a responsibility to

assist in the proper administration of justice. They do not

discharge duties by filing pointless petitions which only add

to the workload of the judiciary, specially this court which is

burdened enough as it is.

A judicious body of the facts and the law should advice

them when a case such as this should not be permitted to be

filed to merely clutter the already congested judicial

dockets. They do not advance the cause of law or their

clients by commencing litigation that for sheer lack of merits

do not deserve the attention of the courts.

CANON 11 - A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND

SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS.

Lawyers cannot expect their clients to respect the courts if

the lawyers themselves seems to be disrespectful of the

courts.

RESPECT TOWARDS JUDGES AND OTHER JUDICIAL OFFICERS

TN the respect must not be directed only to judges but also to

judicial officers who take part in the judicial work like the

sheriff and clerk of court.

OBEDIENCE TO COURT ORDERS AND PROCESSES

CRITICIZING THE COURTS

Can lawyers criticize the courts?

Yes. That is what the appeal, MRs and rules of review are

for.

Case: In re Almacen

SC said judges are not sacrosanct and lawyers must be brave

enough to expose the unethical practices of judges.

VALID CRITICISM

But criticism to be bonafide must not spill over the walls of

decency.

And criticism must be coursed through proper channels.

CANON 11.01 Rule 11.01 - A lawyer shall appear in court properly attired.

CANON 11.02 Rule 11.02 - A lawyer shall punctually appear at court hearings.

CANON 11.03 Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing

language or behavior before the Courts.



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CANON 11.04 Rule 11.04 - A lawyer shall not attribute to a Judge motives not supported by

the record or have no materiality to the case.

ALLEGATION OF CORRUPTION AND INCOMPETENCE OF A

JUDGE

It can be a really good escape goat for lawyers when they lose

a case to say that it was the judge’s fault.

So if you ever have to allege bribery, corruption or

incompetence on judges, be sure that you have direct

evidence to back you up.

Because this may be very harmful to the judiciary as an

institution. The client will have a perception of the court as

being corrupt.

Case: In re Aguas

SC said that lawyers must be brave in exposing arbitrariness

and injustices of judges.

Therefore, if you notice anything undesirable done by the

judge, it is best to have in placed on records so that if you

have to file an administrative case later on, you have the

records of the case to back you up, not just mere

statements.

Case: Micor vs Archangel

The lawyer sought the judge’s inhibition. Because in his

motion for inhibition, he said that the judge was personally

recruited from the south by the opposing counsel and

therefore cannot be expected to be impartial to hear the

case. They also said in the motion that the presiding judge

should go back to Davao where the courts are less

complicated than in Makati City.

This is contemptuous. The lawyer and the client were held in

contempt of court.

Why? There was no basis for their allegations.

The lawyer said that the information was only from the client.

But Sc said that it is not a valid defense. As a lawyer, you

should know if an allegation is supported by evidence or not.

If not supported, you should know when it should be alleged

according to the rules of ethics. And in matters of

procedure, the lawyer should always control the case and

not the client.

CANON 11.05 Rule 11.05 - A lawyer shall submit grievances against a Judge to the proper

authorities only.

Who are the proper authorities?

1. SC

2. Office of the ombudsman

Can the ombudsman investigate judges?

Case: Maceda vs Ombudsman

YES. But there must be a go signal first from the SC; upon

proper referral by SC to Ombudsman. OW, the ombudsman

cannot investigate.

3. House of Representatives and Senate

For SC justices who are impeachable officers.

CANON 12 - A LAWYER SHALL EXERT EVERY EFFORT AND CONSIDER IT HIS DUTY TO ASSIST IN THE SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE.

CANON 12.01 Rule 12.01 - A lawyer shall not appear for trial unless he has adequately

prepared himself on the law and the facts of his case, the evidence he will adduce and the order of its proferrence. He should also be ready with the original documents for comparison with the copies.

PREPARED FOR TRIAL

A lawyer must be prepared for trial. He must know the facts,

laws and evidences.

PRESUMED TO KNOW ANTECEDENTS

If you are a newly hired counsel who appears in the case in

midstream, you are still expected to know everything that

has transpired from the beginning until you took over the

case.

CANON 12.02 Rule 12.02 - A lawyer shall not file multiple actions arising from the same

cause.

NON FORUM SHOPPING

EVILS OF FORUM SHOPPING

1. duplication or multiplication of suits, clogging the dockets

of courts

2. on the part of the defendant, there are double or multiple

mixation of law suits arising from only one cause

3. waste of time, energy and resources of the courts

4. (!!!) probability that tribunals might render conflicting

rulings

REQUIREMENT IN RULES OF COURT

For initiatory pleadings, a CERTIFICATION OF NON FORUM

SHOPPING.

SANCTIONS FOR NON COMPLIANCE OF CERTIFICATION

1. failure to comply is not curable by amendment

2. case will be dismissed without prejudice

3. constitute indirect contempt of court

4. administrative sanction

SANCTIONS FOR WILLFULL AND DELIBERATE FORUM

SHOPPING

1. summary dismissal with prejudice

2. direct contempt

3. administrative action

CANON 12.03 Rule 12.03 - A lawyer shall not, after obtaining extensions of time to file

pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so.

EXTENSION OF TIME

If a lawyer obtains extension of time to file pleadings, then

the lawyer should not allow that period to lapse without

submitting or offering an explanation for his failure to do so.



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CANON 12.04 Rule 12.04 - A lawyer shall not unduly delay a case, impede the execution of a

judgment or misuse Court processes.

Do not delay a case.

Case: Nuñez vs Recafort

A lawyer who is also a law dean versus a client who is a

septuagenarian (old client). The lawyer took advantage of

the client because the client allowed his to sell two parcels

of land for a commission.

The lawyer sold the land but did not remit the proceeds of

the sale. So he kept everything from the client. Because of

this the client was compelled to file a collection suit against

the lawyer.

Naturally the client won in the RTC. The lawyer appealed to

CA but it was very clear the appeal was dilatory because the

lawyer did not even bother to pay the docket fees. So CA

held the lawyer liable.

Partially the lawyer complied with the decision of CA. He

issued postdated checks for the remainder. The checks

bounced because the accounts were closed.

So the client filed another criminal case of BP22 against the

lawyer. Still the lawyer did not pay, so the client was

constrained to file an administrative case.

In the administrative case, the IBO investigated it. The IBP

commission required the lawyer to file his answer or

comment.

The lawyer filed for extension of time to file comment. It was

granted. The second and third extension of time to file were

also granted.

SC said that it is very apparent that the lawyer is bent on

delaying the payment.

CANON 12.05 Rule 12.05 - A lawyer shall refrain from talking to his witness during a break

or recess in the trial, while the witness is still under examination.

The reason behind this is for the lawyer to uphold the truth.

Because there is the perception that if you approach the

witness, you might be coaching him.

CANON 12.06 Rule 12.06 - A lawyer shall not knowingly assist a witness to misrepresent

himself or to impersonate another.

FALSE TESTIMONY

There could also be criminal liability of false testimony under

art 181, -183 of RPC on the part of the witness.

OFFERING FALS TESTIMONY

As for the lawyer, he could be liable for offering of false

testimony under art 184 of RPC.

CANON 12.07 Rule 12.07 - A lawyer shall not abuse, browbeat or harass a witness nor

needlessly inconvenience him.

RIGHTS OF WITNESS UNDER RULES OF COURT

1. to be protected from irrelevant, improper and insulting

questions and from harsh and insulting demeanor

2. not to be detained longer than the interest of justice

requires

3. not to be examines except only as to matters pertinent to

the issue

WITNESS MAY BE COMPELLED TO REVEAL PREVIOUS FINAL

CONVICTION

Can a witness be compelled to reveal a previous final

conviction?

YES. That is a public record.



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CANON 12.08 Rule 12.08 - A lawyer shall avoid testifying in behalf of his client, except: (a) on formal matters, such as the mailing, authentication or custody of an

instrument, and the like; or (b) on substantial matters, in cases where his testimony is essential to the

ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel.

GENARAL RULE

A lawyer should avoid testifying in behalf of his client

-REASON

There’s an inconsistency between a role of an advocate and

a role of a witness.

The role of the advocate is to be biased. To fight to for the

right or interest of one party and that party only.

The role of the witness is to be objective; to just narrate

objectively of what transpired.

-UNDER RULES OF COURT

Under the rues of court, the testimony of the lawyer in

behalf of his client is still ADMISSIBLE. But the weight and

credibility of the evidence may be questioned.

So it is for the client’s interest that the lawyer avoids

testifying for the client.

EXCEPTIONS

a. on formal matters

-such as the mailing, authentication or custody of an

instrument, and the like

-because the lawyer is in the best position to testify o ythe

matters

b. on substantial matters

-testimony is essential to the ends of justice

-must, during his testimony, entrust the trial of the case to

another counsel

-example. Lawyer may testify on the alibi of the client.

Case: Santiago vs Rafanan

The lawyer is a witness to his client on the defense of alibi

because according to the client, he was with his lawyer at

that time and they were very far from the place.

So it is necessary for the lawyer to testify as one of the

witness.

SC said it is allowed.

Moreover, the proceedings is still in the preliminary

investigation stage. And if you read paragraph B, is says,

during the testimony, entrusts the proceedings to another

lawyer; this paragraph presumes that there is already a

court case.

So SC said that 12.08 does not even apply yet. The prohibition

applies only to actual trial before the court.

CANON 13 - A LAWYER SHALL RELY UPON THE MERITS OF HIS CAUSE AND REFRAIN FROM ANY IMPROPRIETY WHICH TENDS TO INFLUENCE, OR GIVES THE APPEARANCE OF INFLUENCING THE COURT.

CANON 13.01 Rule 13.01 - A lawyer shall not extend extraordinary attention or hospitality

to, nor seek opportunity for cultivating familiarity with Judges.

This is really for the protection of both the lawyer and the

judge to avoid misconstructions or motive.

Case: Latoya vs Bunhi

The lawyer was found to have drafted the decision of the

judge.

CANON 13.02 Rule 13.02 - A lawyer shall not make public statements in the media regarding

a pending case tending to arouse public opinion for or against a party.

TRIAL BY PUBLICITY

This is what we refer to as TRIAL BY PUBLICITY – when the

judge becomes influenced by the overwhelming public

opinion. In effect the judge decides the case not on the facts

of the law but on public opinion.

COMMITTED BY LAWYERS, NOT MEDIA

This is the punishable if the act is committed by lawyers, not

by the media.

Case: Estrada vs SandiganBayan

Magia was Estrada’s counsel during EDSA Dos. Magia went to

the media and vented her frustrations and said that the SC

were corrupt. And there was serious ignorance of the law.

Magia was indefinitely suspended.

WHEN LAWYER MAY MAKE STATEMENTS

If extreme circumstances of the case justify a statement to

the public, then you may be interviewed.

But when giving a statement to the public, the lawyer must

not go further that the arguments that he has already filed

in the pleadings.

PROOF THAT JUDGE WAS INFLUENCED

When is trial by publicity prejudicial?

There must be allegation and proof that the judges are

unduly influenced.

CANON 13.03 Rule 13.03 - A lawyer shall not brook or invite interference by another branch

or agency of the government in the normal course of judicial proceedings.



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CHAPTER IV. THE LAWYER AND THE CLIENT

CANON 14 - A LAWYER SHALL NOT REFUSE HIS SERVICES TO THE

NEEDY.

Who are the needy?

A person can be needy because of:

1. Age

2. Disability

3. Status in life

CANON 14.01 Rule 14.01 - A lawyer shall not decline to represent a person solely on account

of the latter's race, sex. creed or status of life, or because of his own opinion regarding the guilt of said person.

SOLELY

Key word here is “SOLELY”. So if that is your only reason for

declining the engagement, then that is unethical.

MAY DECLINE FOR JUSTIFIABLE REASONS

Is a lawyer compelled to accept all cases then?

Of course not. he has the liberty to decline cases as long as

the refusal to take the case is justifiable.

NOT JUSTIFIABLE REASONS

When is it not justifiable?

When it is based solely on:

1. Race

2. Sex

3. Creed

4. Status of life

5. Opinion regarding the guilt of client

BELIEF THAT THE CLIENT IS GUILTY

Can the lawyer refuse to accept a client for the sole reason

that he believes he is guilty?

NO. Innocent persons who are victims only of suspicious

circumstances might be denied proper defense. The lawyer

should defend the accused by all fair and honorable means

that the law permits, regardless of his personal opinion of

the guilt of the accused.

So you utilize all available defenses.

KNOWLEDGE THAT THE CLIENT IS GUILTY

If the lawyer knows that his client is guilty, he must continue

with the defense, and use al fair and reasonable means in

doing so. Like the lawyer should make sure that due process

is observed and the client is accorded the correct penalty.

FAILURE TO PROVE BEYOND REASONBALE DOUBT

If prosecution fails to prove guilt beyond reasonable doubt,

then the lawyer must invoke the acquittal of the client.

Because under such circumstance, the client is legally

entitled to a acquittal.

NOT APPLICABLE TO CIVIL CASES

The rule that you cannot decline solely on the ground that

you think that the client is a guilty party? In a civil case, can

you decline because the case is not meritorious?

NO. The rule is not applicable to civil cases. You can decline

the engagement on the ground that it is not meritorious.

Why?

In civil cases, it is the counsel’s duty to counsel or maintain

such actions or proceedings only as appears for him to be

just, and such defenses that he believes are honestly

debatable in law.

CANON 14.02 Rule 14.02 - A lawyer shall not decline, except for serious and sufficient cause,

an appointment as counsel de officio or as amicus curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid.

RESPONSIBILITY PUBLIC SERVICE

Again, this is related to the principle that lawyering is not a

money making trade. It is a privilege with responsibilities.

And one of the responsibilities is a public service.

ACCUSED MAY REFUSE COUNSEL DE OFFICO

We know that a lawyer should not refuse from being

appointed as counsel de officio without justifiable reason.

How about the accused, can he refuse the appointment of

counsel de officio?

YES. If the accused has counsel de parte.

COURT WILL GIVE SUFFICIENT TIME TO FIND COUNSEL DE

PARTE

If the accused manifests that he wants to have a counsel de

parte, the court should give him sufficient time to do so.

However, cannot without valid grounds refuse to have a

counsel de officio if he had already been given sufficient

time to get a counsel of his own choice.

IOW the accused cannot use this as a ploy to delay the

proceedings.

APPLICABLE IN CIVIL CASES

Can the judge assign a lawyer free legal aid to destitutes or

indigents in civil cases? So this is like a counterpart to

counsel de officio. But counsel de officio s only in criminal

cases. Can this also be done in a civil case?

YES. Sec 31, Rule 138 of Rules of Court where the services

of counsel are needed to attain the ends of justice.



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CANON 14.03 Rule 14.03 - A lawyer may not refuse to accept representation of an indigent

client if: (a) he is not in a position to carry out the work effectively or competently; (b) he labors under a conflict of interest between him and the prospective

client or between a present client and the prospective client.

GR: cannot refuse to accept representation of indigent

client

EXPT: 1. Not in position to carry out work effectively and

competently

2. Conflict of interest

CONFLICTING INTEREST

When the lawyer would argue a claim on one hand and would

argue the defense of such claim on the other hand.

Case: North Western University vs Arquillo

Sc says there are three separate tests in determining conflict

of interest:

1. when in representation of one client, a lawyer is required

to fight for a claim but is also duty bound to oppose it for

another client

2. when the acceptance of a new retainer will require a

lawyer to perform an act that may injuriously affect the first

client or when called upon in a new relation, to use against

upon the first one any knowledge acquired from their

professional connection

3. when the acceptance of the new relation will prevent the

full discharge of an attorney’s duty to give undivided fidelity

and loyalty to the client or would provide suspicion of

unfaithfulness or double dealing in the performance of the

duty

This is a consolidated labor case. So what resolute was there

were many complainants and many respondents. The lawyer

represented 8 of the 18 complainants and 1 of the 10

respondents.

As counsel of that respondent, Jose Castro, the lawyer filed a

motion to dismiss the complaint. Can he legitimately oppose

the motion to dismiss the complaint? NO. because he would

now be negating himself.

The defense of the lawyer here would be that the clients do

not really have opposing claims. In fact, the decision of the

court, the SC held that Jose Castro was not liable to the

complainants. And in reality, the respondent was not an

opposing party to the complainants.

SC said that it does not matter what his opinion is WON there

is little conflict of interest or none at all. SC said that even if

you can pass the first two test, you cannot pass the 3rd

test.

Here, there is the prevention of full discharge of duties

because he cannot oppose the motion to dismiss.

And it invites suspicion of unfaithfulness or double dealing in

the performance of the duty. SC said that as counsel for

complainants, lawyer had the duty to oppose the motion to

dismiss filed by Jose Castro.

Example.

This is a criminal case and you are the lawyer of A and B.

Later on, B is utilized as state witness against A. can you still

be counsel of both?

NO. Because they have opposing interest now.

CANON 14.04 Rule 14.04 - A lawyer who accepts the cause of a person unable to pay his

professional fees shall observe the same standard of conduct governing his relations with paying clients.

In many cases the SC has held to not consider this as charity.

But rather a part of the lawyer’s obligation to the society.



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CANON 15 - A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS

CLIENTS.

CANON 15.01 Rule 15.01. - A lawyer, in conferring with a prospective client, shall ascertain

as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client.

ASCERAIN CONFLICT OF INTEREST AS SOON AS POSSIBLE

Still this is the lawyer’s duty to be faithful with the client’s

cause.

So when consulting with the client, the lawyer must be

attentive so that he will know immediately if there is conflict

of interest. And once he knows, he must stop the client from

revealing any further.

Case: Mejia vs Reyes

Atty. Reyes was the counsel and notary public of PNP. In such

capacity, he handled a litigation between PNP and Mejia.

Mejia lost and wanted to appeal. At Reyes’ advice, Mejia did

not push through with the appeal. Later on, Mejia learned

that Reyes was the counsel of PNP.

The act constitutes malpractice because he represented

conflicting party of the bank and the opposing party of the

bank.

CLIENT’S INTEREST PREVAILS OVER LAWYER’S INTEREST

In case of conflicting interest between the lawyer and the

client, the lawyers are urged to favor the client’s interest.

CANON 15.03 Rule 15.03. - A lawyer shall not represent conflicting interests except by

written consent of all concerned given after a full disclosure of the facts.

CANON 15.04 Rule 15.04. - A lawyer may, with the written consent of all concerned, act as

mediator, conciliator or arbitrator in settling disputes.

EXCEPTION: WRITTEN CONSENT

This is an exception.

GR is that lawyer should not represent conflicting interest.

But there is an exception provided by the rules; if there is a

written consent given after the full disclosure of the facts.

The consent must be informed consent.

ADMINISTRATIVE AND CRIMINAL LIABILITY

Representing conflicting interest is a criminal offense under

RPC, art 209 – betrayal of trust by an attorney.

So aside from possible administrative liability, the lawyer can

also be criminally sued.

APPLIES IN MERE CONSULTANCY

There was a consultation with a prospective client but the

lawyer did not accept the case. And later on, he represented

the adverse party. Can this be done? Can the lawyer say that

there was no lawyer-client relationship between him and

the first one?

NO.

Case: Helado vs David

It is not essential that the client should have employed or

paid the lawyer professionally. Mere consultation suffices to

establish a lawyer-client relationship. And the lawyer should

not represent conflicting interest.

So it is not necessary that the lawyer and the party

eventually pushed through with the engaging the lawyer.

APPLIES AFTER TERMINATION OF RELATIONSHIP

This duty of not representing conflicting interest applies even

after attorney-client relationship has ended.

Case: Arquizuela vs Manerazo

This is a civil case for damages and the lawyer was the lawyer

for the complainant but it was found out that he was the

same lawyer who prepared the answer to the compliant. He

represented conflicting interest.

His defense was that he is not counsel of record of the

defendant.

Is that a proper defense? NO. You need not be the counsel fo

record for both parties before you can be adjudged guilty of

conflicting interest.

OW to require that rule would be to punish only the most

obvious forms of treachery.

SC said that the mere fact that you also prepared the answer,

then that is also conflicting.

Case: Nakpil vs Valdez

Atty Valdez is the managing partner of his own law firm and

one accounting firm.

In a case, he represented the estate of the Late Jose Nakpil.

However, two claimants of the estate are clients of his

accounting firm.

The lawyer was suspended for representing conflicting

interest.



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CANON 15.02 Rule 15.02.- A lawyer shall be bound by the rule on privilege communication

in respect of matters disclosed to him by a prospective client.

ATTORNEY-CLIENT PRIVILEGE

This is like a virtual confessional seal.

FORMS OF COMMUNICATION

What forms of communication are covered by the privilege?

All sorts; oral, written, action, signs, texts, emails.

This is in the rules of court.

NEED CONSENT

A lawyer cannot without the consent of his client be

examined as to any communication made by the client to

him or his advise given to him in the course of or with a view

to (meaning even in consultancy relationship) professional

employment. Nor can a lawyer’s secretary, stenographer or

clerk be examined without the consent of the client or his

employer concerning any fact, the knowledge of which has

been acquired in such capacity.

PLEADINGS

Are pleadings confidential?

Yes. Before they are files in court.

BASIC LIMITATIONS

Let’s go to the basic limitations of privilege communication.

1. the purpose of the communication must be to seek legal

advice

The lawyer and his client were in drinker spree. Because

the client was drunk, the client became a bragger. He says

he brings with him local startlets with him in his out of

town trips, even though he is married. He says he can

afford them because he uses the money from the bank,

being its manager. Can the lawyer be examined be

examined as to the contents of the communication?

YES because the purpose of the communication was not

for legal advice.

2. does not extent to communication of commission of future

crimes

A person committing or about to commit a crime cannot

have privileged witness. The communication must be for a

lawful purpose or in furtherance of a lawful end.

OW, if the purpose is criminal, it is not only lawful to

divulge but the lawyer should be bound to disclose at once

in the interest of justice.

LAW STUDENT PRACTICE RULE

The privilege applies to law students under the Law Student

Practice Rule.

TWO FOLD PURPOSE OF THE RULE

1. to encourage the client to make full disclosure without fear

2. to enable counsel to obtain full information so as not to be

misled in the evaluation in the merits or demerits of the

client’s case

NAME AND IDENTITY OF THE CLIENT

Case: Regona vs SB (read this case)

The issue is WON the name or the identity of the client is

covered by the privilege?

CANON 15.05 Rule 15.05. - A lawyer when advising his client, shall give a candid and honest

opinion on the merits and probable results of the client's case, neither overstating nor understating the prospects of the case.

This is an instance of candor; being truthful to the client.

How can a lawyer do this?

By giving the client the strength and weaknesses of his

case; giving a reasonable and realistic appraisal of the

client’s case.

When writing legal opinions, you practice 15.05. You do not

overstate or understate. This is what makes it different from

memorandum because in memorandum, you act as an

advocate for your client. But in a legal opinion, you are

expected to be impartial and objective.

CANON 15.06 Rule 15.06. - A lawyer shall not state or imply that he is able to influence any

public official, tribunal or legislative body.

This is hazardous to the public perception to the courts and

other quasi judicial bodies



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CANON 15.07 Rule 15.07. - A lawyer shall impress upon his client compliance with the laws

and the principles of fairness.

Case:

In a case, the client wanted to picket before CA. The lawyer

says it is part of his freedom of expression.

Sc said it is wrong for the lawyer to advice the client that way.

Picketing before the courts is an act of influencing the court.

There is the danger of trial by publicity.

NOT BEING A MERE MOUTHPIECE

In matters of law, the lawyer should hold the reigns. The

client should deal to the lawyer and not the other way

around.

So lawyering or being a mere mouthpiece of the client are

untenable arguments

Lawyer should advice clients about proper decorum and

proper attitude towards court of justice.

The lawyer should curb the client’s desire to publish the

litigation

CANON 15.08 Rule 15.08. - A lawyer who is engaged in another profession or occupation

concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity.

NON LAWYER CAPACITY

Example.

A lawyer is at the same time a real estate agent or insurance

adjustor, the lawyer must be clear to the client what other

capacity he is acting.

Why? Because in other capacities, the legal ethics rules do

not anymore apply.

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.

SC said that fidelity to client’s cause is the essence of the

profession. Without this fidelity a lawyer cannot survive

because no client will engage his services anymore.

Word of mouth. It will spread if you are an unfaithful lawyer.

So this canon is self preservation of lawyer’s carrer and also

ultimately of the legal profession, to see to it that the

confidence on lawyers is preserved.



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CANON 16 - A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS

PROFESSION.

DUAL ROLES TO CLIENT

A lawyer has dual roles to his client:

1. fiduciary or trustee

The lawyer should afford the client with utmost good

faith and fidelity. IOW strict compliance of CPR.

2. agent of the client

Can the lawyer bind the client?

Yes. In terms of law and ordinary judicial procedures.

As agent, the lawyer appears in court in behalf of the

client.

-Case: Regala vs SB

SC said that a lawyer is more than an ordinary agent.

Under the laws of agency, an agent must perform his

duties and function to the extent of authority. The agent

must always follow the principal.

This is not always true with the lawyers. We have

discussed that lawyers should not allow clients to dictate

the case. The lawyer must always control the case. If the

client insists on unethical conduct, it is the lawyer’s duty to

advice the client to desist.

So in this regard, a laywer is more than an ordinary

agent.

-Case: Vicor vs Archangel

The defense of lawyering, that you are merely acting as a

mouthpiece of the client are not tenable defenses.

The lawyer is foremost an officer of the court. The court’s

interest should prevail over the client’s interest.

CASES WHERE LAWYER WAS FOUND TO HAVE BREACHED

THE CLIENT’S TRUST

-Case: Liquana vs Melo

The lawyer misappropriated the rentals which was for the

client. There was breach of the client’s trust because we are

talking of the client’s property and funds.

-Case: Docena vs Ringon

The lawyer said that they need to post a supersedeas bond,

but the lawyer did not post it. he misappropriated the

money.

-Case: Navarro vs Meneses

The money was for amicable settlement. His client found

out that the case was still on going because the lawyer did

not even attempt to settle it. And when asked where the

money went, the lawyer was not able to explain.

CANON 16.01 Rule 16.01 - A lawyer shall account for all money or property collected or

received for or from the client.

PURPOSE FOR ACCOUNTING

Reason behind this rule is simple. The money is not his. So

when called on to account, he must be ready with

explanations.

CANON 16.02 Rule 16.02 - A lawyer shall keep the funds of each client separate and apart

from his own and those of others kept by him.

NO COMINGLING OF FUNDS

PURPOSE

1. to prevent confusion

2. to prevent appearance of propriety

3. to avoid temptation on the part of the lawyer to convert

funds

LIABILITIES/PENALTIES

Unlawful retention of the client’s funs is obviously a violation

of canon 16, and also a contemptuous; one of the grounds

for contempt of court, officer of the court who has

misbehaved in his official transactions. So it is a ground for

indirect contempt.

Of course there is still the possible criminal and

administrative prosecution.

CANON 16.04 Rule 16.04 - A lawyer shall not borrow money from his client unless the

client's interest are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client

LAWYER BORROWING MONEY FROM THE CLIENT

Can a lawyer borrow money from his client?

GR: NO.

-because lawyers have moral ascendancy and legal

superiority over their clients

EXPT: the client’s interest are fully protected by the nature

of the case or by independent advice

-example. The lawyer’s client is a lending company.

Because of the peculiar nature of the client’s

business, the client cannot be deemed to be

innocent to be innocent on the laws of lending and

loans.

CLIENT BORROWING MONEY FROM LAWYER

Can a client borrow money from the lawyer?

GR: NO.

-because lawyers have moral ascendancy and legal

superiority over their clients

EXPT: when in the interest of justice, he has to advance

necessary expense in a legal matter he is handling

for a client.

-the loan is in connection with the legal matter that

the lawyer is handling for the client



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LAWYER ENTERING INTO BUSNESS TRABSACTION WITH

CLIENTS

Can lawyers enter into business transactions with clients?

YES. The lawyer is not barred from entering into business

with clients, but the business transaction must be

characterized with utmost honesty and good faith. There is a

mush higher standard of good faith s compared to other

business transactions that are at arms length.

-NO PRESUMPTION OF INNOCENSE

There is no presumption of innocence or improbability of

wrongdoing considered in his favor.

CANON 16.03 (!!!) Rule 16.03 - A lawyer shall deliver the funds and property of his client when

due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court.

DELIVERY OF FUNDS AND PROPERTY OF CLIENT

GR: deliver the funds and property of client upon demand

EXPT: 1. RETAINING LIEN

-lien over the funds and properties to satisfy lawful

fees and disbursement

-PVDD there is prompt notice

2. CHARGING LIEN

-lien over the judgments and executions he had

secured for the client to satisfy lawful fees and

disbursement

RETAINING LIEN/GENERAL LIEN/POSSESSORY LIEN

This is the right of the lawyer to lawfully withhold his client’s

property that lawfully come to his possession until payment

of attorney’s fees.

PROPERTY here are the funds and documents.

Example. The lawyer is hired by the client to have a parcel of

land titled in the client’s name. The lawyer successfully

procures the title, but he is not yet paid the attorney’s fees.

Can the lawyer say that he will give the title only upon the

payment of the attorney’s fees?

YES. This is the retaining lien, the right of the lawyer to

withhold the client’s funds and documents that lawfully

come into his possession.

If the lawyer is handling a client in a deportation case. He

took possession of client’s passport and travel documents.

Can the lawyer withhold these until he pays his attorney’s

fees?

YES. This is still the retaining lien.

CHARGING/ SPECIAL/ PARTICULAR/ NON POSSESSORY LIEN

This is the right of the attorney to request the court to

annotate his claims for attorney’s fees in whatever

recoveries made by the client from the losing adversary.

In a charging lien, it presupposes that they have won the case

and there is a money judgment in favor of the lawyer’s client

the lawyer will now request the court to annotate his lien

for attorney’s fees.

-EFFECT

What is the effect?

If the client was adjudged 100k. he has unpaid attorney’s

fess of 20k. If the lawyer exercises his charging line, the

losing party will pay 20k to the lawyer and pay 80k to the

client.

So it is as if the lawyer also won the case to the extent of

the fees.

-APPLICABLE ONLY TO MONEY JUDGMENT

What if the court judgment involves real property? Can the

lawyer claim his part of attorney’s fees from the property?

NO. In a charging lien, one of the limitations there is that it

has to be a money judgment.

NOT MUTUALLY EXCLUSIVE

A lawyer can exercise both liens.

PURPOSE OF ATTORNEY’S LIEN

Why is there recognition of the attorney’s lien?

It is but natural that the lawyer be secured of the fruits of

his professional labor.

The liens are the means for the lawyer to collect his fees.

Proper administration of justice cannot be secured without

an intelligent and prosperous bar.

BASIS OF RETAINING LIEN

-RULES OF COURT

This is not a creation of lawyers to help them. This is based on

rules of court, particularly sec 37 of rule 138.

An attorney shall have a lien upon the funds, documents

and papers of his client which have lawfully come into his

possession and may retain the same until lawful fees and

disbursements have been paid, and may apply such funds

to the satisfaction thereof.



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LIMITATIONS ON THE EXERCISE OF RETAINING LIEN

1. apply to funds, documents and papers only

If the lawyer has come into the possession of his client’s

car, can he say that he will not return it to the client?

NO.

2. the thing retained should lawfully come into the possession

of the lawyer under the circumstances consistent with the

enforcement of the lien for services.

Thus retaining lien does not apply to funds coming into

lawyer’s possession in trust.

So if you are given money to pay taxes, the lawyer

cannot retain it.

3. files that a client needs to pursue his case

A lawyer is filed by a client. He will not give up the files.

This is unethical.

RETAINER’S FEE

Is the retaining lien the same as retaining fee?

NO. Retainer’s fee is a preliminary fee which is paid to

ensure and secure a lawyer’s services.

BASIS OF CHARGING LIEN

Still the rules of court which says;

A lawyer shall have a lien upon all judgments for the

payment of money and executions issued in pursuance

thereof which he has secured in the litigation for his client

from and after the time when he shall have caused a

statement of such claim for such lien, to be entered upon

the records of the court rendering such judgment or issuing

such execution and shall have caused written notice thereof

to be delivered to his client and to the adverse party.

LEGAL FICTION

So it is like there is a legal fiction created. It is as if the lawyer

won or is also a prevailing party litigant and he shall have a

share to the winnings to the extent of his attorney’s fees.

REQUISITTES FOR VALID CHARGING LIEN

1. favorable money judgment

2. cause charging lien to be recorded in the records of the

case/annotation in the records of the case

3. notice to the client and the opposing party

EFFECT IF OPPOSING PARTY GAVE THE ENTIRE AMOUNT TO

CLIENT

If the lawyer has done all the requirements, nonetheless the

losing party paid the entire amount to the winning party,

what happens then? Can the lawyer still collect from the

losing party?

YES.

-REMEDY OF THE OPPOSING PARTY

The losing party’s remedy may recover from the winning

party on the ground of solution indebite.

CHARGING FEE

Is charging lien the same as charging fee?

YES.

LIMITATIONS IN THE EXERCISE OF CHARGING LIEN

1. specific lien

It is specific to the action in which the charging lien is

recorded or in which the money judgment is secured

2. only to favorable money judgments

RETAINING LIEN VS CHARGING LIEN

RL: passive

CL: active

-you need to have it enforced through the court

through motion for annotation of the charging lien

RL: general

CL: specific

BASIS:

RL: lawful possession of papers, documents and funds

CL: securing of a favorable money judgment of the client

COVERAGE

RL: documents

papers

funds

CL: money judgments and executions

EFFECTIVITY

RL: as soon as the lawyer as the lawyer takes possession

-no notice required

CL: as soon as the lien is entered into the records of the

case and proper notices are given

APPLICABILITY

RL: may be before judgment or execution or regardless

thereof (even if lost the case)

CL: only if there is a favorable money judgment



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CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.

CANON 18.01 Rules 18.01 - A lawyer shall not undertake a legal service which he knows or

should know that he is not qualified to render. However, he may render such service if, with the consent of his client, he can obtain as collaborating counsel a lawyer who is competent on the matter.

WHEN LAWYER IS NOT COMPETENT

Are lawyers required to e competent?

NO.

But his duty is to:

1. not to render any legal service, or

2. get collaborating counsel with his client’s consent

CANON 18.02 Rule 18.02 - A lawyer shall not handle any legal matter without adequate

preparation.


CANON 18.03 Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him, and his

negligence in connection therewith shall render him liable.

CONSEQUENCES OF NEGLIGENCE

1. disciplinary action against the lawyer

2. malpractice suit for damages

3. a criminal action may be set aside

4. retrial may be had in civil cases

The last two consequences are exceptional cases.

CRIMINAL ACTION MAY BE SET ASIDE

Criminal conviction may be set aside if the errors of the

defense counsel is so shocking that they deprive the accused

of the constitutional right to effective counsel.

Conviction may be set aside but accused must show that his

counsel’s acts or omissions were outside the range of

professionally competent assistance.

Furthermore, the acts or omissions must have caused actual

prejudice, not just concealable effect of the outcome of the

case.

Example. Criminal case but the lawyer applied civil procedure.

RETRIAL MAY BE HAD IN CIVIL CASES

In civil cases, a retrial may be conducted but courts are slow

in setting aside judgments in civil cases.

DELIGENCE REQUIRED

Diligence required from a lawyer is ORDINARY DILIGENCE.

A lawyer is not an insurer of the results of a case.

CLIENT IS BOUND BY THE NEGLIGENCE OF LAWYER

Is the client bound by the negligence of his counsel?

YES.

GR: Any act of the lawyer within the scope of his general or

implied authority is considered an act of the client

EXPT: when the application of the general rule would result

to:

a. serious injustice or

b. outright deprivation of the client’s right to life,

liberty or property without due process of law.

CANON 18.04 Rule 18.04 - A lawyer shall keep the client informed of the status of his case

and shall respond within a reasonable time to the client's request for information.

The lawyer’s duty is to keep the client updated.

But the client also has a correlative duty to be in contact with

his counsel to be informed of the progress of the case.

No prudent party will leave the case entirely to his lawyer.

Litigant should give necessary assistance to his counsel for

what is at stake is their interest in the case.



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CANON 19 - A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF THE LAW.

“WITHIN THE BOUNDS OF THE LAW”

The key phrase there is WITHIN THE BOUNDS OF THE LAW

No amount of zeal can ever justify the violation of the law by

the lawyer.

Case: Maglasang vs People

SC said that the lawyer’s duty is not to his client but to the

administration of justice. And to that end, his client’s

success is wholly subordinate and the conduct ought to and

must always be scrupulously observant to the law and

ethics.

So here, the service of the lawyer must always be within

the bounds of the law.

CANON 15 of CANONS OF PROFESSIONAL ETHICS

The office of the attorney does not permit; much less does it

demand of him for any client violation of law or any manner

of fraud. He must obey his own conscience and nit that of

his own client.

Case: Regala vs SB

The lawyer is more than an ordinary agent. The lawyer can

even overrule the client’s decision when it comes to the law

and the procedure.

CANON 19.01 Rule 19.01 - A lawyer shall employ only fair and honest means to attain the

lawful objectives of his client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding.

Example.

A dismissed employee files a case against the employer on

the ground of unlawful dismissal. To gain an advantage over

the employee, the lawyer suggests to the employer to invest

a charge against the employee. So they manufacture a

spurious charge of theft against the employee. This will be a

bargaining leverage.

There is nothing wrong with countersuits as long as they are

based on facts and are meritorious. But if they are invented

only for harassing or getting an unfair advantage over the

other party then it is not allowed by the ethical rules.

DUTY TO SERVE WITHIN THE BOUNDS OF THE LAW

This is a corollary principle that the lawyer should serve his

clients within the bounds of the law.

When defending a person accused of a crime, it is the duty of

a lawyer in the defense of a person accused of a crime by all

fair and honorable means, regardless of the personal

opinion as to the guilt of the accused to present every

defense that the law permits to the end that no person may

be deprived of life or liberty but by due process of law.

FAIR AND HONORABLE MEANS

We have discussed this that in the defense of the person

being accused of the crime, regardless of the lawyer’s

opinion of the guilt of the accused, it is the lawyer’s duty to

defend by all fair and honorable means.

CANON 19.02 Rule 19.02 - A lawyer who has received information that his client has, in the

course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he shall terminate the relationship with such client in accordance with the Rules of Court.

KNOWLEDGE OF FRAUD COMMITTED BY THE CLIENT

-URGE CLIENT TO RECTIFY FRAUD

The client while in the witness stand testified on the matters

which the lawyer personally knew to be untrue. So the

lawyer knew that the client was perjuring himself in the

witness stand. If the court will admit and believe the

testimony of the client, surely he will win the case. What is

the ethical duty of the lawyer if he knew that the client lied?

The lawyer should urge his client to rectify the fraud.

-IF INSIST, GROUND TO WITHDRAW AS COUNSEL

If the client insists on pursuing with the unlawful course of

action, then the lawyer has, under the rules of court,

grounds to withdraw as counsel.

-CANNOT EXPOSE; PROTECT CONFIDENCES

Should the lawyer expose the fraud to the court?

NO. Because the lawyer also has the duty to protect the

confidences of his client.

CANON 19.03 Rule 19.03 - A lawyer shall not allow his client to dictate the procedure in

handling the case.

We have discussed this in Ricor vs Archangel case.

Counsel however is highly bound to comply with his client’s

lawful request.

You must know what matters are for the lawyer to decide

and what matters are for the client to decide.

The question on to appeal or not, who decides that?

The client. It is a lawful request. At most the lawyer can

recommend or give legal advise.



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CANON 20 - A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE FEES.

FAIR AND REASONABLE

ATTORNEY’S FEES (!!!)

It is a remuneration given to a lawyer as reasonable

compensation for his professional services.

PURPOSE

What is the rationale behind attorney’s fees?

Case: Stensil vs Roach

US SC said that although the legal profession is not a

business undertaking, the lawyer, like all human beings has

the right to a livelihood.

2 CONCEPTS OF ATTORNEY’S FEES

1. ORDINARY CONCEPT

This is what we call attorney’s fees. The remuneration

given to a lawyer in exchange for legal services rendered.

2. EXTRAORDINARY CONCEPT

This is under art 2208 of the NCC.

ORDINARY CONCEPT OF ATTORNEY’S FEES

-BASIS

-the employment of the lawyer by the client

-because of the employment of the lawyer, there is a

corollary duty of the client to pay attorney’s fees.

-PRESUMPTION: ENTITLED TO ATTORNEY’S FEES

Is there a presumption that the lawyer is entitled to

attorneys fees?

YES. In obligations and contracts, if there is no express

contract, it could be the innominate contract of facio ut des,

I do so that you may give. So there is always the

presumption that in exchange for the legal services

rendered, the lawyer will be paid.

EXPT: if the contract is intended to be gratuitous. But in

such exceptional case, the client must prove that that was

the intent of the lawyer; to give legal service. And the

burden to prove that lies on the client.

EXTRAORDINARY CONCEPT OF ATTORNEY’S FEES

-this is the damages. This is attorney’s fees in the nature of

damages ordered by the court to be paid by the losing party

in a litigation.

-TO WHOM PAID

GR: to the client

EXPT: there is an agreement between the lawyer and the

client that attorney’s fees shall pertain to the lawyer

as additional compensation or as part thereof.

PVDD: the client is informed the nature of the

extraordinary attorney’s fees

-INTANCES WHERE ATTORNEY’S FEES ARE AWARDED

-ART 2208 NCC Art. 2208. In the absence of stipulation, attorney's fees and expenses of

litigation, other than judicial costs, cannot be recovered, except: (1) When exemplary damages are awarded; (2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; (3) In criminal cases of malicious prosecution against the plaintiff; (4) In case of a clearly unfounded civil action or proceeding against the plaintiff; (5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff's plainly valid, just and demandable claim; (6) In actions for legal support; (7) In actions for the recovery of wages of household helpers, laborers and skilled workers; (8) In actions for indemnity under workmen's compensation and employer's liability laws; (9) In a separate civil action to recover civil liability arising from a crime; (10) When at least double judicial costs are awarded; (11) In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered. In all cases, the attorney's fees and expenses of litigation must be reasonable.

CONTRACT FOR ATTORNEY’S FEES

-HOW AGREEMENT ABOUT ATTORNEY’S FEES MADE

1. oral

2. written

-is best for both client and lawyer.

-under the rules of court, it benefits the lawyer because

if the lawyer is unjustifiably dismissed by the client and

there is a written contract for attorney’s fees, the lawyer

can recover for the full amount as stated in the contract.

3. implied

-there is no agreement at all to pay for the legal fees but

the lawyer has rendered services and the client has

benefited thereby

-this is based on facio ut des and the doctrine against

unjust enrichment.

-HOW TO DRAFT CONTRACT FOR ATTORNEY’S FEES

In practice, it is very simply written, with the least legalese

written. Because it would be ironic if he has to hire another

lawyer to explain to him the contract you drafted.

-CONSTRUCTION IN CASE OF AMBIGUITY

In case of ambiguity, how is it construed?

In favor of the client and strictly against the lawyer

-SUBJECT TO REVIEW BY THE COURT

Can the contract be reviewed by the court?

YES at all times. because lawyers are officers of the court

and their contract for attorney’s fees are always subject to

review and supervision by the court.

So if the client complains that the attorney’s fees are too

high, he can always refer the matter to the court and the

court can review the attorney’s fees to see if it is fair and

reasonable under the circumstances.



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RETAINER’S FEES

-KINDS OF RETAINER’S FEES AGREEMENT

-Case: TRB Employees vs NLRC

1. GENERAL RETAINER

2. SPECIAL RETAINER

1. GENERAL RETAINER

A client hires a lawyer to handle his every day ordinary

business. This is a fee paid to a lawyer to secure future

services as general counsel for any ordinary legal problem

that may arise in the routinary business of the client and

refer to him for any legal action; so ordinary business

concerns in the customary business of the client.

So the lawyer makes himself available to the client for

ordinary concerns in exchange for a retainer fee.

Example. A lawyer is hired by a company. Retainer’s fee of

10k per month is given. And in exchange, the client will

forward to the lawyer ordinary legal problems of the

business, like advisories for labor concerns, review for

contracts.

-NOTWITHSTANDING THE LEGAL WORK DONE

If a lawyer does not render legal work for a particular

month, should he still be paid?

YES. Because it is not the actual work that is paid here but

the undertaking of the lawyer to be available to the client as

long as the retainer agreement is in effect.

-REASON: LOST OPPORTUNITIES

So even if there is no legal work given by the lawyer, he is

still paid because a general retainer is also a fee paid for lost

opportunities.

Because if you are already retained by the client, you

cannot take the cases of parties whose interest are adverse

to him.

2. SPECIAL RETAINER

This is a fee for a specific case handled by the lawyer for a

client.

A client may have several cases demanding special or

individual attention. If for every case there is a separate

contract for attorney’s fees, each fee is considered a special

retainer.

So we are now talking of a special case or a service which

requires extraordinary attention. Maybe it takes longer time

or higher level of expertise.

It is no longer covered by a special retainer.

KINDS OF ATTORNEY’S FEES ARRANGEMENT

1. FIXED OR ABSOLUTE FEE

The lawyer is paid a certain fee regardless of the

outcome of the case.

Example is acceptance fee.

2. CONTINGENT FEE

The lawyer is paid only if they win.

3. FIXED FEE PAYABLE PER APPEARANCE

4. FIXED FEE HOURLY RATE OR TIME FILLING

Example. Preparation of pleadings, and conference with

the clients and services.

5. FIXED FEE BASED ON PIECE WORK

Example. Having different fees when elevated to appeal.

6. COMBINATION OF ANY

PVDD the lawyer and client agree.



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CONTINGENT FEE CONTRACT

This is a contract whereby a lawyer is paid for his services

only if he wins the case.

This is also known as the NO CURE NO PAY BASIS.

-Case: Tagares vs NLRC

This is an agreement laid down in an express contract

between the lawyer and the client in which the lawyer’s

professional fee, which is usually a fixed percentage of what

may be recovered in the action is made to depend on the

success of the litigation

-RATIONALE

Why is this contract allowed?

The rationale behind this contract is the recognition that

this kind of contract is often the only way by which the poor

and the helpless can have their right to litigate.

-AMOUNT

How do you know if the amount in the contract is

reasonable?

At any rate, the amount is always subject to the supervision

of the court as to its reasonableness.

-EFFECT OF CLIENT’S REFUSAL TO APPEAL

An attorney engaged to collect his attorney’s fees in

contingency basis may not, in order to collect his fees

prosecute his appeal despite his client’s refusal to appeal.

Remember that a lawyer is duty bound to obey his client’s

lawful requests. So the lawyer may not insist.

-Case: Daviste vs CA

SC said that a contingent fee contract does not make a

lawyer a creditor of the client. It neither gives nor purports

to give to a lawyer any right whatsoever, personal or real in

and into the client’s potential winning to the suit.

If the contingency does not occur, then the lawyer is not

entitled to contingent fees at all.

CHAMPERTOUS CONTRACT (!!!)

One whereby a lawyer agrees to prosecute suits at his own

expense for the recovery of things or property belonging to

or claimed by the client, the latter agreeing to pay the

former a fraction of the of the thing or property recovered

as compensation.

-EFFECT

This is void.

-AS COMPARED TO CONTINGENCY CONTRACT

Champ: void

Cont: valid

Champ: there is an undertaking of the lawyer to bear all

expenses incident to the litigation

Cont: no such agreement, what is waived in the mean

time is attorney’s fees only

-EXPENSES INCIDENT TO THE LITIGATION

The lawyer should not undertake all the expenses incident

to the litigation; like filing fees, docket fees, research fees,

reproduction fees, mailing expenses and other overhead

expenses.

-VOID

It is void because it is against the public policy and ethics of

the profession.

Because then the lawyer would be so heavily invested in

the case. The lawyer might be blind on the ethical rules and

would want to win at all costs to recover his investments.



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CANON 20.01 Rule 20.01 - A lawyer shall be guided by the following factors in determining

his fees: (a) the time spent and the extent of the service rendered or required; (b) the novelty and difficulty of the questions involved; (c) The importance of the subject matter; (d) The skill demanded; (e) The probability of losing other employment as a result of acceptance of

the proffered case; (f) The customary charges for similar services and the schedule of fees of the

IBP chapter to which he belongs; (g) The amount involved in the controversy and the benefits resulting to the

client from the service; (h) The contingency or certainty of compensation; (i) The character of the employment, whether occasional or established; and (j) The professional standing of the lawyer.

These are the factors that can guide the lawyer in

determining the reasonableness of his fees. (read on)

This tells us that there is no fixed fee. There is only a

minimum rate, and practically no limit.

OTHER FACTORS

Other factor may also be considered, such as:

1. client’s ability to pay

2. client is a fellow lawyer, or his dependents

3. responsibility imposed on the lawyer

4. actual results secured

PURPOSE OF CRITERIA FOR REASONABLENESS OF FEES

Why should there be a criteria for reasonableness of fees?

Excessive fees would discourage prospective clients from

seeking legal representation.

OTOH if the legal fees are inadequate, there is a danger

that it might serve as a disincentive of the lawyer to exert his

utmost in representing the client. It might also discourage

dedicated and talented persons in pursuing a career in law.

QUANTUM MERUIT

-AS MUCH AS HE DESERVES

Determination of lawyer’s fees which is as much as he

deserves considering the factors to determine the

reasonableness of fees and the pertinent circumstances of

the case

-WHEN DONE

When is the lawyer given attorney’s fees based on

quantum meruit?

1. when the fee appears excessive, unconscionable or

unreasonable as reviewed by the courts

2. when there is no express contract or there is implied

contract

3. when contract of employment is void because of some

irregularity in its execution or as to purely formal matters.

4. when there is an agreement to pay attorney’s fees but the

amount is not agreed upon

5. when the lawyer withdraws with justifiable cause

-IF LAWYER WITHDRAWS WITHOUT JUSTIFIABLE CAUSE

Lawyer is given quantum meruit.

-IF LAWYER WITHDRAWS WITHOUT JUSTIFIABLE CAUSE

If lawyer withdraws without justifiable cause, the

attorney’s fees are reduced. There may even be a chance

that he forfeits the attorney’s fees.

-IF CLIENT WITHDRAWS

If the client withdraws or fires the lawyer, under the rules

of court, full compensation.

PVDD: 1. the contract must have been reduced to writing

2. withdrawal is without justifiable cause

LIMITATION OF ATTORNEY’S FEES

The law can limit the collection of attorneys fees. The state as

PARENS PATREA, the protector of the people can protect the

interest of the under privilege. Usually you see this in social

legislation.

-LAWS LIMITING ATTORNEY’S FEES

1. US Veterans Claim

-not more than P20

2. Labor Code

CANON 20.02 Rule 20.02 - A lawyer shall, in case of referral, with the consent of the client,

be entitled to a division of fees in proportion to the work performed and responsibility assumed.

FEE SPLITTING

This provides for a situation of fee splitting.

-REQUISITES

1. referral cases

2. client’s consent

3. split in the fee is proportionate to the work performed

and responsibility assumed

PURE REFERRAL – NO FEE SPLITTING

If it was only purely referral and the employer did nothing,

can there be fee splitting?

NO. OW the lawyer is like an agent or a runner.



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CANON 20.03 Rule 20.03 - A lawyer shall not, without the full knowledge and consent of

the client, accept any fee, reward, costs, commission, interest, rebate or forwarding allowance or other compensation whatsoever related to his professional employment from anyone other than the client.

PURPOSE

The reason behind this is very clear. Because if the lawyer can

get some other amounts from other people other than his

client, his loyalty may be divided. He cannot be fully faithful

to his client.

CANON 20.04 Rule 20.04 - A lawyer shall avoid controversies with clients concerning his

compensation and shall resort to judicial action only to prevent imposition, injustice or fraud.

AVOID CONTROVERSIES

Yes we have discussed that a lawyer has the right to

livelihood and lawyer’s liens to make it easier to collect.

But at the end of the day, 20.04 reminds lawyers to as much

as possible avoid controversies concerning their attorney’s

fees.

GR: avoid controversies regarding attorney’s fees

EXPT: to prevent imposition, injustice or fraud.

ASUMPSIT

This is the name of the action filed by the lawyer against his

client for collection of attorney’s fees.

-HOW INSTITUTED

It is instituted:

1. independently from the main case

2. by filing a motion in the main case

CANON 21 - A LAWYER SHALL PRESERVE THE CONFIDENCE AND SECRETS OF HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT

RELATION IS TERMINATED.

ATTORNEY CLIENT PRIVILEGE VS CANON 21

You might say we are done with this when we discussed

attorney-client privilege but there is a thin line which

distinguishes it from the duty under canon 21.

ACP: protects all communications

C21: all information acquired during the course of

professional employment

-even information not communicated

-broader scope, all confidences and secrets

-even if after relationship is terminated

CONSEQUENCES IN VIOLATING THE CLIENT’S CONFIDENCE

1. criminal liability

a. betrayal of trust by an attorney,

b. revelation of secrets

2. administrative action

CANON 21.01 Rule 21.01 - A lawyer shall not reveal the confidences or secrets of his client

except; (a) When authorized by the client after acquainting him of the consequences

of the disclosure; (b) When required by law; (c) When necessary to collect his fees or to defend himself, his employees or

associates or by judicial action.

GR: not reveal the confidences or secrets of his client

EXPT: a. authorized by the client after acquainting him of the

consequences of the disclosure

b. required by law

c. necessary to collect his fees

d. necessary to defend himself, employees or

associates

e. by judicial action

JURISPRUDENCE:

f. the client himself or in case of his death, his heirs or

legal representatives relieved the lawyer of such duty

1. AUTHORIZED BY THE CLIENT AFTER ACQUAINTING HIM OF

THE CONSEQUENCES OF THE DISCLOSURE

The authorization amounts to a waiver on the part of the

client.

But then the authorization must be an informed one. He must

be informed of the consequences of the disclosure.

CONSENT NEEDED IF EXAMINE SECRETARY, STENOGRAPHER

OR CLERK

Let’s go back to attorney client privilege, if the witness to be

examined is the lawyer’s secretary, stenographer or clerk,

consent of the client is not enough. Consent of the lawyer is

also needed.



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2. DISCLOSURE IS REQUIRED BY LAW

The law does not make a lawyer a nest of vipers in which to

hatch crimes or fraud.

Public policy and the lawyer’s duty forbids the lawyer from

assisting in the commission of the crime or permitting the

privilege to conceal a wrongdoing.

-FUTURE CRIMES AND FRAUDS

So future crimes and frauds, a lawyer may not be

professionally consulted.

3. NECESSARY TO COLLECT FEES OR DEFEND HIMSELF OR HIS

STAFF OR BY JUDICIAL ACT

-NECESSARY TO COLLECT FEES

Example. In explaining the client’s complaint that the fees

are so exorbitant, the lawyer can reveal client’s secrets to

justify the attorney’s fees.

CANON 21.02 Rule 21.02 - A lawyer shall not, to the disadvantage of his client, use

information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto.


CANON 20.03 Rule 21.03 - A lawyer shall not, without the written consent of his client, give

information from his files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or any similar purpose.

Example. The NBI goes to the lawyer asking for the files of the

client. The lawyer cannot give the files without the client’s

consent.

-Case: People vs Syhoko

The court cannot order the opening of a lawyer’s cabinet,

seized by virtue of a search warrant which cabinet contains

confidential files of his client.

SHARING DETAILS OF CASE WITH PARTNERS IN FIRM

Can you share details of your client’s case with your other

partners?

YES. That is allowed. Unless the client expressly says that

only his lawyer should handle the case.

CANON 21.04 Rule 21.04 - A lawyer may disclose the affairs of a client of the firm to partners

or associates thereof unless prohibited by the client.

CANON 21.05 Rule 21.05 - A lawyer shall adopt such measures as may be required to prevent

those whose services are utilized by him, from disclosing or using confidences or secrets of the clients.

Because what’s the use if the lawyer is vigilant on himself

only and not reveal the client’s confidences and secrets but

his secretary can or his messenger can? So the lawyer can

also exercise care and supervision over his employees for

them to know how to protect client’s confidences and

secrets.

CANON 21.06 Rule 21.06 - A lawyer shall avoid indiscreet conversation about a client's

affairs even with members of his family.

So do not make your cases a dinner topic.

CANON 21.07 Rule 21.07 - A lawyer shall not reveal that he has been consulted about a

particular case except to avoid possible conflict of interest.

GR: not reveal prior consultation

EXPT: to avoid conflict of interest

RATIONALE

OW if the lawyer remains silent, he may be violating the rule

against representing conflicting interest.



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CANON 22 - A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE

CIRCUMSTANCES.

CANON 22.01 Rule 22.01 - A lawyer may withdraw his services in any of the following case: (a) When the client pursues an illegal or immoral course of conduct in

connection with the matter he is handling; (b) When the client insists that the lawyer pursue conduct violative of these

canons and rules; (c) When his inability to work with co-counsel will not promote the best

interest of the client; (d) When the mental or physical condition of the lawyer renders it difficult

for him to carry out the employment effectively; (e) When the client deliberately fails to pay the fees for the services or fails to

comply with the retainer agreement; (f) When the lawyer is elected or appointed to public office; and (g) Other similar cases.

CANON 22.O2 Rule 22.02 - A lawyer who withdraws or is discharged shall, subject to a

retainer lien, immediately turn over all papers and property to which the client is entitled, and shall cooperative with his successor in the orderly transfer of the matter, including all information necessary for the proper handling of the matter.



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