Legal Profession Reviewer

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Legal Profession

Text of Legal Profession Reviewer

LEGAL PROFESSION REVIEWER

LEGAL PROFESSION REVIEWER

(Based on Agpalo, CPR and CJC)

I. LAWYER AND SOCIETY

A. Introduction

- The legal profession expresses 3 ideals: organization, learning and public service

- In 1988, SC adopted the Code of Professional Responsibility drafted by IBP way back in 1980.

- The practice of law is not a business but a profession characterized by the following:

public service

impt. Role in the administration of justice

relationship with client in the higher degree fiduciary

relationship with colleagues characterized by candor, fairness and unwillingness to resort to advertising and encroachment

B. Nature of Attorneys Office

- Quasi-judicial officer (administration of justice): highly-burdened privilege

C. Privileges of Attorney

right/privilege to practice law

presumption of regularity in the discharge of duty

immunity from liability vis--vis 3rd person in the exercise of duty

pardon from infelicities of language when litigating in court

stand up for right/ right of client before hostile court

1st grade (knowledge of law) and 2nd grade civil service eligibility upon passing BAR exams

model citizen

D. Duties of Attorney

Court, public, IBP and clients

Public duties prevail over private ones

E. Right to Counsel Right to counsel (de parte or de officio) is protected by the Constitution (Art 3, Sec. 12.

Right to counsel is vital in criminal proceedings and cant be waived or such will result in the denial of due process (accused must be able to establish his innocence using the proper legal procedures).

Civil (minor courts) or administrative proceedings: right to counsel may be waived and the litigant may represent self.

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

RULE 1.01: A LAWYER SHALL NOT ENGAGE IN UNLAWFUL, DISHONEST, IMMORAL OR DECEITFUL CONDUCT

UNLAWFUL : act or omission against the law

DISHONEST: lying or cheating

IMMORAL: involves moral turpitude (an act w/c may not be a crime but is so deprave or vile that it contravenes justice, modesty or societys accepted moral standards)

RULE 1.02: A LAWYER SHALL NOT COUNSEL OR ABET ACTIVITIES AIMED AT THE DEFIANCE OF THE LAW OR LESSENING IN THE CONFIDENCE OF THE LEGAL PROFESSION

A lawyer should uphold the law since he is an active participant in the administration of justice.

RULE 1.03: A LAWYER SHALL NOT, FOR ANY CORRUPT MOTIVE OR INTEREST, ENCOURAGE ANY SUIT OR DELAY ANY MANS CAUSE

A lawyer should not encourage lawsuits nor stir up unnecessary litigation (aka MAINTENANCE) as to prevent AMBULANCE CHASING (which burdens the courts, encourages perjury, mulcts the innocent and defrauds the injured).RULE 1.04: A LAWYER SHALL ENCOURAGE HIS CLIENTS TO AVOID, END OR SETTLE CONTROVERSY IF IT WILL ADMIT A FAIR SETTLEMENT

As much as possible, lawyers should mediate and try to compromise (truth and moral justice > technical legality) as to lessen expenses (time/money) and possible ill feelings as well as prevent the clogging of court dockets.CANON 2: A LAWYER SHALL MAKE LEGAL SERVICES AVAILABLE IN AN EFFICIENT AND CONVENIENT MANNER COMPATIBLE WITH THE INDEPENDENCE, INTERGRITY AND EFFECTIVENESS OF THE PROFESSION

- The IBP has the duty to make sure the poor and the oppressed are represented by competent counsels despite their inability to pay.

RULE 2.01: A LAWYER SHALL NOT REJECT THECAUSE OF THE DEFENSELESS OR THE OPPRESSED EXCEPT FOR VALID REASONS

Legal aid to the poor is not a matter of charity but a means to correct the social imbalance that may lead to injustice (IBP Guidelines governing Local Aid Offices)RULE 2.02: IN SUCH CASES, EVEN IF THE LAWYER DOES NOT ACCEPT THE CASE, HE SHALL NOT REFUSE TO RENDER LEGAL ADVICE TO THE PERSON CONCERNED IF ONLY TO THE EXTENT NECESSARY TO SAFEGUARD THE LATTERS RIGHTS

The main intent here is avoid a possible conflict of interest but legal advice which does not create an attorney-client relationship may be given if only to safeguard the defenseless rights (eg. What preliminary steps to take until litigant can secure the services of a lawyer)RULE 2.03: A LAWYER SHALL NOT DO OR PERMIT TO BE DONE ANY ACT PRIMARILY DESIGNED TO SOLICIT LEGAL BUSINESS

Lawyers should not solicit cases for purpose of gain, directly or indirectly as to prevent professional touting since the legal profession is not businessRULE 2.04: A LAWYER SHALL NOT CHARGE RATES LOWER THAN THOSE CUSTOMARILY PRESCRIBED UNLESS THE CIRCUMSTANCE SO WARRANT

The intent here is to prevent the discount effect. Charging the poor litigants lower rates is perfectly acceptable.

CANON 3: A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE INFORMATION OR STATEMENT OF FACTS

- A lawyer cant advertise his talent since law is not a business wherein advertising is necessary to attract clients. Monetary gain is but a secondary consideration since public service is the primary goal and such necessitates traditional dignity. The practice of law SHOULD NEVER BE COMMERCIALIZED.

- Some forms of advertising or solicitation are acceptable: well-merited reputation for professional capacity or trust, good and efficient service to client, etc.

Expressly allowed exceptions: publication in reputable law list with brief biographical and informative data, use of simple professional card, notice of lawyers (only) as regards to specialized services, appointment to public office, mention in law journals, announcement of free legal services to the indigent, etc.

Implied exceptions: writing legal articles giving information about the law in the general context, giving general legal information through broadcast media or writing columns for newspapers as long as:

- there is no improper advertising

- no legal advice is given to non-clients

- no aiding of non-lawyers to engage in the unauthorized practice of law

- Engaging in another business or lawful calling entirely apart from the practice of law is not necessarily improper when such does not conflict with the lawyers duties as a member of the bar. Clients must be informed whether the lawyer is rendering service as a lawyer or in another capacity.

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

A lawyer shall not indirectly advertise himself or his services to attract clients. Common sense and the spirit of fairness should be relied upon.RULE 3.02: IN THE CHOICE OF 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 COMMUNICATIONS THAT SAID PARTNER IS DECEASED

All of the partners by their joint efforts over the years contributed to the good name attached to the firms name and this goodwill will be adversely affected if the firm keeps changing its name. As long as it does not deceive people into thinking the deceased member is still alive, his/her name may still be used. Filipino attorneys cant practice law under the name of a foreign law firm but affiliations with such may be indicated.RULE 3.03: WHERE A PARTNER ACCEPTS PUBLIC OFFICE, HE SHALL WITHDRAW FROM THE FIRM AND HIS NAME SHALL BE DROPPED FROM THE FIRM NAME UNLESS THE LAW ALLOWS HIM TO PRACTICE CONCURRENTLY

The idea here is to prevent the firm from using the public officials name to attract legal business and to avoid the appearance of undue influence. While the rule against public officials engaging in private legal practice is general, there are some exceptions:- Legislators are only barred from appearing as counsel in any tribunal (Constitution, Art. 6, Sec. 14 & 17)

- A Sanggunian member can practice law as long as they dont appear as counsel before any LGU as adverse party, in any criminal case involving a govt official in public capacity, dont charge any fee for representing his LGU or public property or personnel are used by him only in representing the Government (LGC, sec. 90 a & b).

-Civil servants may practice law if not expressly barred by law as long as the dept. head permits such.

For further study, see RA 3019, RA 7610 and RA 6713.

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

The purpose here is to prevent the gain of undue advantage by means of gimmickry, press agentry or any artificial means that will attract public attention through the media.

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

- The law is a part of a vast social network so the lawyer must broaden out and continue to grow in knowledge and competence as to make the law socially responsive

CANON 5: A LAWYER SHALL KEEP ABREAST OF LEGAL DEVELOPMENTS, PARTICIPATE IN CONTINUING LEGAL EDUCATION PROGRAMS, SUPPORT EFFORTS TO ACHIEVE HIGHEST STANDARDS IN LAW SCHOOLS AS WELL AS IN THE PRACTICAL TRAINING OF LAW STUDENTS AND TO ASSIST IN THE DISSEMINATING OF INFORMATION REGARDING LAW AND JURISPRUDENCE

- Service in the judiciary and practice of law requires continuing legal education to improve ones knowledge, to maintain the highest standards of legal obligation and to make law part of social consciousnes