Pp.21-31 (Up_legal Ethics)hgfdhdhd

CANON 12: QUICK REFERENCE

Canon 12. A lawyer shall exert every effort and consider it his duty to assist in the speedy and efficient administration of justice.

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.

Rule 12.02. A lawyer shall not file multiple actions arising from the same cause.

Rule 12.03. A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting to the same or offering an explanation for his failure to do so.

Rule 12.04. A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse court processes.

Rule 12.05 A lawyer shall refrain from talking to his witness during the break or recess in the trial, while the witness is still under examination.

Rule 12.06

A

lawyer

shall

not

knowingly

assist

a

witness

to

misrepresent himself or to impersonate another.

MEMORY AID FOR RULES UNDER CANON 12: o Adequate Preparation (Rule 12.01)

o Forum Shopping (Rule 12.02) o Not to Delay Case (Rule 12.03) o Court Process (Rule 12.04)

o Proper Behavior (Rule 12.05-12.07)

o Not to Testify on Behalf of Client (Rule 12.08)

KNOW MORE:

CONST. art III, sec 6. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.

Rule 138 Sec 20(g). Duties of attorneys. – It is the duty of an attorney: (g) Not to encourage either the commencement or the continuance of an action or proceeding, or delay any man’s cause, from any corrupt motive or interest.

Notes from Agpalo:

o The first duty of a lawyer is not to his client

but the administration of justice. As an officer of the Court, it is the duty of the lawyer to advance the Court’s objective of having a speedy, efficient, impartial, correct, and inexpensive adjudication of

case and the prompt satisfaction of final judgments.

The duty to assist in the administration of justice may be performed by doing no act that obstructs, perverts, or impedes the administration of justice and by faithfully complying with all his duties to the court and to his client. Examples of the former would include the duty to inform the court of any change of his address or of the death of his client.

Acts that amount to obstruction of the administration of justice may take many forms. They include such acts as instructing a complaining witness in a criminal case not to appear at the scheduled hearing so that the case against his client, the accused, would be dismissed

Ordinarily, obstruction of justice constitutes contempt of court, and citing the misbehaving

lawyer for contempt and punishing him for such misbehavior may be sufficient to accomplish the end desired. However, the misbehavior may be of such character as to effect the offender’s qualifications as a lawyer for the practice of law. In such case, he may be disciplined as a lawyer for such misconduct.

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

A lawyer shall not handle any legal matter without adequate preparation. (Rule 18.02)

Without adequate preparation, the lawyer may not be able to effectively assist the court in the efficient administration of justice. Non-observance of this rule might result in:

The postponement of the pre-trial or hearing, which would thus entail delay in the early disposition of the case,

The judge may consider the client non-suited or in default or

The judge may consider the case deemed submitted for decision without client’s evidence, to his prejudice. (Agpalo)

II. Rule 12.02. A lawyer shall not file multiple actions arising from the same cause

The plaintiff or principal party shall certify under oath in the complaining or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith:

that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein;

if there is such other pending action or claim, a complete statement of the present status thereof; and

if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report

1 0 0 % U P L A W U P B A R O P S 2 0 0 8 Page 21 of 74

that fact within 5 days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion after hearing. The submission of false certification or non-compliance with any of the undertaking therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (ROC,

Rule 7, Sec. 5)

Rule 12.02 stresses the affirmative duty of a lawyer to check against useless litigations. His signature in every pleading constitutes a certificate by him that to the best of his knowledge there is a good ground to support it and that it is not to interpose for delay. The

willful violation of this rule may subject him to

(1) appropriate disciplinary action or (2) render him liable for the costs of litigation. (Agpalo)

Forum shopping is prohibited by Supreme Court Circular No. 28-91 --ANNEXED, which is now integrated in the Rules of Civil Procedure.

III. Rule 12.03. A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting to the same or offering an explanation for his failure to do so.

Where a lawyer’s motion for extension of time to file a pleading, memorandum or brief has remained unacted by the court, the least that is expected of him is to file it within the period asked for (Agpalo)

IV. Rule 12.04. A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse court processes.

Notes from Agpalo

While a client may withhold from his counsel certain facts or give him false information to attain his unlawful ends, a lawyer can easily see through the client’s action either before or at the early stage of the litigation

If after his appearance a lawyer discovers that his client has no case, he may not unceremoniously abandon the action. He should advise his client to discontinue the action or to confess judgment, and if the client is determined to pursue it he should ask that he be relieved from professional responsibility

LEGAL ETHICS

If a lawyer is honestly convinced of the futility of an appeal in a civil suit he should not hesitate to temper his client’s desire to seek appellate review of such decision for unless, he could show sufficient cause for reversal, he would only succeed in planting false hope in his client’s mind, increasing the burden on appellate tribunals, prolonging litigation unnecessarily and exposing his client to useless expenses.

Nonetheless a lawyer should not, solely on his own judgment, let the decision become final by letting the period to appeal lapse, without informing his client of the adverse decision and of his candid advice in taking appellate review thereof, well within the period to appeal, so that the client may decide whether to pursue appellate review.

In expropriation proceedings by the NAPOCOR against several lot owners in Bulacan, the president of an organization of the lot owners entered into a contract for legal services with Atty. Principe. The complainant Malonso, a member of the same organization, appointed on the other hand a certain Elfa as his attorney-in-fact on the matter of negotiation with NPC. Eventually, an amicable settlement was had between NAPOCOR and the lot owners. More than two years after the expropriation cases were instituted, Atty. Principe filed his motion to separate legal fees and filed his “Notice of Entry of Appearance” claiming that he is the legal counsel of the lot owners. The other lot owners including Malonso wrote a letter to NPC informing the latter that they have never authorized Sandama’s President to hire the services of Atty. Principe’s law firm to represent them. Atty.

Principe filed several motions to ensure his claim to the 40% of the selling price of the properties being expropriated. An investigation conducted by the IBP recommended Atty. Principe’s suspension from the practice of law for two years on the ground that Atty. Principe had violated among others Rule 12.04 which says that “a lawyer shall not unduly delay a case, impede the execution of a judgment or misuse Court processes.” In its Resolution, the IBP Board ordained his suspension from the practice of law for 2 years. The SC however found that formal requisites of the investigation and resolution had not been complied with and dismissed the case requiring the IBP to comply with the procedure outlined in Rule 139-B in all cases involving disbarment and discipline of attorneys. (Malonzo v. Prinsipe, 447 SCRA 1

(2004))

V –VII.

Rule 12.05 A lawyer shall refrain from talking to his witness during the break or recess in the trial, while the witness is still under examination.

Rule 12.06 A lawyer shall not knowingly assist a witness to misrepresent himself or to impersonate another.

Rule 12.07 A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him.


LEGAL ETHICS

Rule 132, sec. 3. Rights and obligations of a witness. A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness:

To be protected from irrelevant, improper, or insulting questions, and from harsh or

insulting demeanor;

Not to be detained longer than the interests of justice require;

Not to be examine

d except only as to matters pertinent to the issue;

Not to give an answer which will tend to subject him to a penalty for an offense

unless otherwise provided by law; or

Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous conviction for an offense.

P.D. No. 1829 Penalizing the obstruction of apprehension and prosecution of criminal offenders (1981)—ANNEXED

Notes from Agpalo:

Rule 12.05. The purpose of this rule is to

avoid any suspicion that he is coaching the witness what to say during the resumption of the examination

Rule 12.06. A lawyer may interview witnesses in advance of trial or attend to their needs if they are poor but

he should avoid any such action as may be misinterpreted as an attempt to influence the witness what to say in court. Court will not give weight on a testimony of a witness who admits having been instructed. A lawyer who presents a witness whom he knows will give a false testimony or is an impersonator may be subjected to disciplinary action.

Rule 12.07. The lawyer has a duty to always treat adverse witnesses and suitors with fairness and due consideration

Rule 12.07. The client cannot be made the keeper of the lawyer’s conscience in professional matters. He has no right to demand that his counsel abuse the opposite party and the latter’s witnesses or indulge in offensive personalities. Improper speech is not excusable on the ground that it is what the client would say if speaking in his own behalf

Rule 12.07. If it is the judge who subjects the witness to harsh treatment, the lawyer has the right to protest in a respectful and dignified manner

the action of the judge and to make the incident of record without being held liable administratively or for contempt of court

VIII. RULE 12.08 A LAWYER SHALL AVOID TESTIFYING IN BEHALF OF HIS CLIENT; EXCEPT:

on formal matters, such as mailing, authentication or custody of an instrument, and the like; or

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.

The underlying reason for the impropriety of a lawyer acting in such dual capacity lies in the difference between the function of a witness and that of an advocate. The function of a witness is to tell the facts as he recalls then in answer to questions. The function of an advocate is that of a partisan. It is difficult to distinguish between the zeal of an advocate and the fairness and impartiality of a disintere

sted witness (Agpalo)

Although the law does not forbid an attorney to be a witness and at the same time an attorney in a cause, the courts prefer that counsel should not testify as witness unless it is necessary and that they should withdraw from the active management of the case. Canon 19 of the Code of Legal Ethics provides that “when a lawyer is a witness for his client, except as to merely formal matters. Such as the attestation or custody of an instrument and

the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.” (PNB v. Uy Teng Piao,

57 PHIL 337 (1932))


Canon 13. A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appear

ance of influencing the court.

Rule 13.01.

A lawyer shall

not

extend extraordinary attention

or

hospitality to, nor seek opportunity for cultivating familiarity with Judges.

Rule 13.02. A lawyer shall not make public statements in media regarding a pending case tending to arouse public opinion for or against a party.

Rule 13.03. A lawyer shall not

brook or invite interference by another branch or agency of the government by another branch or agency of the government in normal course of judicial proceedings.

MEMORY AID FOR RULES UNDER CANON 13: o No Extraordinary Attention (Rule 13.01)

o

No Public Statements to Media (Rule 13.02)

o

Not to Invite Outside Interference (Rule

13.03)

KNOW MORE:

Grievances must be ventilated through proper channels (appropriate petitions, motions or other pleadings) in keeping with the respect due to the Courts as impartial administrators of justice entitled to proceed to the disposition of its business in an orderly manner, free from outside interference obstructive of its functions and tending to embarrass the administration of

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justice. For though the rights of free speech and of assembly are constitutionally protected, an attempt to pressure or influence courts of justice is no longer within the ambit of constitutional protection. (Nestle Phil. v.

Sanchez, 154 SCRA 542 (1987))19

Freedom of speech is not absolute, and must be balanced with the requirements of equally important public interests, such as the maintenance of the integrity of the courts and orderly functioning of the administration of justice. Unwarranted attacks on the dignity of the courts cannot be disguised as free speech, for the exercise of said right cannot be used to impair the independence and efficiency of courts or public respect and confidence thereof. His statements are not fair criticisms of any decision of the Court, but are threats made against it to force the Court to decide the issue in a particular manner, or risk earning the ire of the public. It tends to promote distrust an undermines public confidence in the judiciary, by creating the impression that the Court cannot be trusted to resolve cases impartially, uninfluenced by public clamor and other extraneous influences. (In Re: De Vera, 385

SCRA 285 (2003))20

I. Rule 13.01. A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with Judges.

Notes from Agpalo

The common practice of some lawyers making judges and prosecutors godfathers of their children to enhance their influence and their law practice should be avoided by

judges and lawyers alike

A lawyer should not see a judge in chamber and talk to him about a case he is handling

and pending in the judge’s court

A lawyer should not communicate to the judge the merits of a pending case

Rule 13.02. A lawyer shall not make public statements in media regarding a pending case

tending to arouse public opinion for or against a party.

Notes from Agpalo:

19 FACTS: Two unions with pending cases before the SC had intermittent pickets in front of the Padre Faura gate of the SC building, obstructing access to and egress from the Court’s premises. They also constructed provisional shelters, set up a kitchen, littered the area causing it to be unhygienic and unsanitized, waved their red streamers and placards with slogans, and harangued the court with the use of loudspeakers. Two justices called the leaders of the unions and their counsel to inform them that the pickets constitute direct contempt of court, and that their petitions could not be heard until the pickets stop. Arty Espinas, the counsel for the unions, apologized and assured that the acts would not be repeated. The SC dismissed the contempt charges against Atty. Espinas.

20 FACTS: Atty. De Vera made some remarks to the Philippine Daily Inquirer regarding a pending case involving the constitutionality of the Plunder Law. In one statement, “he asked the SC to dispel rumors that it would vote in favor of a petition filed by Estrada’s lawyers to declare the plunder law unconstitutional” and that his group was greatly disturbed by the rumors. In another statement, he said that a decision in favor of the law’s unconstitutionality would trigger mass actions and the people would not just swallow any SC decision that is basically wrong. Atty. De Vera admitted to making the statements but that these were factually accurate and that these are within his right to freedom of speech.

LEGAL ETHICS

Purpose: Newspaper publications regarding a pending or anticipated litigation may interfere with a fair trial, prejudice the administration of justice, or subject a respondent or a accused to a trial by

publicity and create a public inference of guilt against him

The court, in a pending litigation, must be shielded from embarrassment or influence in its all important duty of deciding the case.

Thus, what a lawyer can ordinarily say against a concluded litigation and the manner the judge handed down the decision may not generally be said to a pending action.

Once a litigation is concluded, the judge who decided it is subject to the same criticism as any other public official because then, his ruling becomes public property and is thrown open to public consumption.

A newspaper publication tending to impede, obstruct, embarrass or influence the courts in administering justice in a pending case constitutes criminal contempt, but the rule is otherwise after the litigation is ended.

Televising a court trial would amount to a violation of due process. A carnival atmosphere would be created.

Jurisprudence also states that there is nothing that proscribes the press from reporting events that transpire in the courtroom. But there is a reasonable likelihood that the prejudicial news prior to trial will prevent a fair trial. If publicity during the proceeding threatens the fairness of the trial, a new trial shall be ordered.

HOWEVER, THE CASE AT BAR IS DIFFERENT. The publicity in this case did not focus on the guilt of the petitioners but rather on the responsibility of the government for what was claimed to be a “massacre” of Muslim trainees. If there was a “trial by newspaper” it was not of the petitioner but of the government. There is no showing that the courts martial failed to protect the accused from massive publicity. Protection would include: controlling the release of information; change the venue or postpone trial until the deluge of prejudicial publicity has subsided. Even granting that there is massive and prejudicial publicity, the petitioners do not contend that the respondents have been unduly influenced but simply that they might be. (Martelino v. Alejandro (1989))

III. Rule 13.03. A lawyer shall not brook or invite interference by another branch or agency of the government by another branch or agency of the government in normal course of judicial proceedings

Rule 11.05. A lawyer shall submit grievances against a Judge to the proper authorities only.

The basis for this rule is the principle of separation of powers (Aguirre)


LEGAL ETHICS

D. The Lawyer and the Client

MEMORY AID FOR CANONS UNDER THIS SECTION:

Service to the Needy (Canon 14)

Observe Candor, Fairness, Loyalty (Canon 15)

Hold in Trust Client’s Moneys and Properties

(Canon 16)

Trust and Confidence (Canon 17)

Competence and Diligence (Canon 18)

Representation with Zeal

(Canon 19)

Attorney’s Fees (Canon 20)

Preserve Client’s Confidence (Canon 21)

Withdrawal of Services for Good Cause (Canon

22)

KNOW MORE:

The nature of lawyer-client relationship is premised on the Roman Law concepts of

location conduction operarum (contract of lease and services) where one person lends his services and another hires them without

reference to the object of which the services are to be performed, wherein lawyers’ services may be compensated by honorarium

mandato (contract of agency) wherein a friend on whom reliance could be placed makes a contract in his name, but gives up all that he gained by the contract to the person who requested him. (Regala v.

Sandiganbayan)

Notes from Agpalo:

The relationship is strictly personal and highly confidential and fiduciary (somethi

ng in trust for another). Thus, delegation is prohibited absent the client’s consent. It likewise terminates at death of either the

client or the attorney.

A client can terminate it any time with or without the consent of the lawyer. However, an attorney enjoys no similar right as he is an officer of the court and he may be permitted to withdraw only with the consent of his client or with the approval of the court. The essential feature of the relation of attorney and client is the fact of employ

ment. While a written agreement for professional services is the best evidence to show the relation, formality is not an

essential element of the employment of a lawyer

It is sufficient, to establish the professional relation, that the advice and assistance of

an attorney is sought and received in any matter pertinent to his profession

There is an implied contract of professional employment where an attorney appears

on behalf of a party without the latter

interposing any objection thereto

To employ an attorney one has to have legal capacity to do so. Minors/ incompetents must have a general guardian/ guardian ad litem has to employ

an attorney.

A lawyer has no power to act as counsel or legal representative for a person without being retained nor may he appear for a party in a case without being employed

unless by leave of court

Retainer, defined:

an act of client by which he engages services of an attorney to render legal advice,

defend or prosecute his cause in court;

(2) fee which a client pays to an attorney when latter is retained (retaining fee)

o

General retainer, defined: secure beforehand services of attorney for any legal problem that may afterward arise

Special retainer, defined: particular case or service

Retaining fee, defined: preliminary fee paid to insure

and secure future services, to remunerate him for being deprived, by being retained by one party. It prevents undue hardship resulting from the rigid observance of the rule forbidding him from acting as counsel for other party (Agpalo)

Employment of a law firm:

The employment of a law firm is equivalent to the retainer of a member thereof even though only one of them is consulted


Canon 14.

A lawyer

shall not

refuse

his

services to the needy.

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.

Rule 14.02. A lawyer shall not

decline, except for serious and sufficient cause, an appointment as counsel de oficio or as amici curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid.

Rule 14.03. A lawyer may refuse to accept representation of an indigent client if:

he is not in a position to carry out the work effectively or competently;

he labors under a conflict of interests between him and the prospective client or

between a present client and the prospective client.

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.

MEMORY AID FOR RULES UNDER CANON 14:

o

Availability of Services Regardless of Status

(Rule 14.01)

o

Providing Counsel de Oficio (Rule 14.02)

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o Valid Ground for Refusal (Rule 14.03)

Same Standard of Conduct for All Clients (Rule

14.04)

KNOW MORE:

General rule: A private practitioner is not obliged to act as counsel for a person who may wish to become his client. He has the right to decline employment.

Exceptions: Canon 14 provide the exceptions to the general rule and emphasize the lawyer’s public responsibility of rendering legal services to the needy and the oppressed who are unable to pay attorney’s fees. In such cases, refusal is the exception rather than the rule.

R.A. 6033. An act requiring courts to give preference to criminal cases where the party or parties involved are indigents (1969)—ANNEXED

R.A. 6034. An act providing transportation and other allowances for indigent litigants. (1969)— ANNEXED

RA 6035. An act requiring stenographers to give free transcript of notes to indigent and low income litigants and providing a penalty for the violation thereof. (1969)—

ANNEXED

I. 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.

Rule 138, sec. 20 (h-i). Duties of attorneys.—It is the duty of an attorney: (h) Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed. (i) In the defense of a person accused of crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits, to the end that no person may be deprived of life or liberty, but by due process of law

Rule 14.01 makes it his duty not to decline to represent the accused regardless of his opinion as to his guilt. Note that in criminal cases, it is easy

to take accused because of presumption of innocence and proof beyond reasonable doubt.

It is the lawyer’s duty to counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under law. He is not to encourage the commencement or the continuance of an action or delay any man’s cause, for any corrupt motive or interest. He must decline to conduct a civil case or to make a defense when convinced that it is intended merely to harass or injure the opposite party or to work oppression or wrong. If he were to take a bad civil case for a plaintiff, it will only be to advise him not to file the action or to settle it with the claimant. If he were to accept the defense of a bad civil case against a defendant, it will either be to exert his best effort toward a compromise or, to tell his client to confess judgment. In criminal cases: easy to take accused because

LEGAL ETHICS

of presumption of innocence and proof beyond reasonable doubt. (Agpalo)

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

II. Rule 14.02. A lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de oficio or as amici curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid.

Rule 138 sec. 20 (h), Duties of attorneys. – It is the duty of an attorney: (h) Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed;

Rule 138, sec. 31 Attorney’s for destitute litigants.—A court may assign an attorney to render professional aid free of charge to any party in a case, if upon investigation it appears that the party is destitute and unable to employ an attorney, and that the services of counsel are necessary to secure the ends of justice and to protect the rights of the party. It shall be the duty of the attorney so assigned to render the required service, unless he is excused therefrom by the court for sufficient cause shown.

Rule 116, sec. 6. Duty of court to inform accused of his right to counsel.—Before arraignment, the court shall inform the accused of his right to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself in person or has employed counsel of his choice, the court must assign a counsel de oficio to defend him.

Rule 116, sec. 7. Appointment of counsel de oficio—The court shall appoint a counsel de oficio to defend a client, considering [1] the gravity of the offense, [2] the difficulty of the questions that may arise, [3] and the experience and ability of the appointee. The counsel must be [1] a member of the bar in good standing [2] or, in localities without lawyers, any person of good repute for probity and ability

Rule 116, sec. 8. Time for counsel de oficio to prepare for arraignment. — Whenever a counsel de oficio is appointed by the court to defend the accused at the arraignment, he shall be given a reasonable time to consult with the accused as to his plea before proceeding with the arraignment.

Rule 124 (Case on Appeal in the CA), sec. 2.

Appointment of counsel de oficio for the accused.—If it appears from the record of the case transmitted that [1] the accused is confined in prison, [2] is without counsel de parte on appeal, or [3] has signed the notice of appeal himself, the clerk of court of the CA shall designate a counsel de oficio.

An appellant who is not confined in prison may, upon request, be assigned a counsel de oficio within the 10 days from receipt of the notice to file brief and he establishes his right thereto by affidavit


LEGAL ETHICS

P.D. 543. Authorizing the designation of municipal judges and lawyers in any branch of the government service to act as counsel de oficio for the accused who are indigent in places where there are no available practicing lawyers. (1974)— ANNEXED

Counsel de Oficio, defined: a counsel, appointed or assigned by the court, from among such members of the bar in good standing who by

reason of their experience and ability, may adequately defend the accused.

(Agpalo)

Rule 138, sec. 36. —Amicus curiae.— Experienced and impartial attorneys may be invited by the Court to appear as amici curiae to help in the disposition of issues submitted to it.

Amicus curiae, defined: A friend of the court;” a “bystander” (usually a counselor) who interposes or volunteers

information upon some matter of law in regard to which the judge is doubtful or mistaken. (Agpalo)

III. Rule 14. 03. A lawyer may refuse to accept representation of an indigent client if:

he is not in a position to carry out the work effectively or competently;

he labors under a conflict of interests

between him and the prospective client or between a present client and the prospective client.

IV. 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.


Canon 15. A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his clients.

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.

Rule 15.02. A lawyer shall be bound by the rule on privileged communication in respect of matters disclosed to him by a prospective client.

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.

Rule 15.04. A lawyer may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in settling disputes.

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 understanding the

prospects of the case.

Rule 15.06.

A lawyer shall not state

or imply that he is able to influence any public official, tribunal or legislative body.

Rule 15.07. A lawyer shall impres

s upon his client compliance with the laws and the principles of fairness.

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.

MEMORY AID FOR RULES UNDER CANON 15: o Conflict of Interest (Rule 15.01 and 15.03) o Privileged

Communication (Rule 15.02)

o Mediator, Conciliator or Arbiter (Rule 15.04) o Candid, Honest Advice (Rule 15.05)

o Not to Claim Influence (Rule 15.06)

o Impress Compliance with Laws (Rule 15.07) o Dual Profession (Rule 15.08)

KNOW MORE:

This canon is based on the character of the attorney-client relationship which is strictly personal and highly confidential and

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fiduciary. Only in such a relationship can a person be encouraged to repose confidence in an attorney. The canon therefore is required by necessity and public interest and is based on the hypothesis that abstinence from seeking legal advice in a good cause is an evil which is fatal to the administration of justice. (Agpalo)

I – II.

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.

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.

Art. 209 Revised Penal Code. Betrayal of trust by an attorney. or solicitor.—Revelation of Secrets.—In addition to the proper administrative action, …shall be imposed upon an attorney-at-law or solicitor (procurador judicial) who, by any malicious breach of professional duty or of inexcusable negligence or ignorance, shall prejudice his client, or reveal any of the secrets of the latter learned by him in his professional capacity

Tests of Conflict of Interest:

when, on behalf of one client, it is the attorney’s duty to contest for that which his duty to another client requires him to oppose or when the possibility of such situation will develop;

whether the acceptance of the new relation will prevent a lawyer from the full discharge of his duty of undivided fidelity and loyalty to his client or will invite suspicion of unfaithfulness in the performance thereof; and

whether a lawyer will be called upon in his new relation to use against his first client any knowledge acquired in the previous employment.

The proscription against representation of conflicting interests finds application where the conflicting interests arise with respect to the same general matter and is applicable however slight such adverse interest may be. It applies although the attorney’s intentions and motives were honest and he acted in good faith.

Rule against representing conflicting interests applies even if the conflict pertains to the lawyer’s private activity or in the performance in a non-professional capacity, and his presentation as a lawyer regarding the same subject matter.

Effect of termination of attorney-client relation o Termination of relation of attorney and

client provides no justification for a lawyer to represent an interest adverse to or in conflict with that of the former client. Neither may he do anything injurious to his former client nor use against former client any knowledge or information gained.

Reason: client’s confidence, once reposed, cannot be divested by the expiration of professional employment

LEGAL ETHICS

Opposing clients in same or related suits

An attorney who appears for opposing clients in the same or related actions puts himself in that awkward position where he will have to contend on behalf of one client that which he will have to oppose on behalf of the other client. He cannot give disinterested advice to both clients but will instead be called on to use confidential information against one client in favor of the other in view of the identicalness or relatedness of the subject.

Even though the opposing clients, after full disclosure of the fact, consent to the attorney’s dual representation, the lawyer should, when his clients cannot see their way clear to settling the controversy amicably, retire from the case.

Opposing clients in unrelated actions

o A lawyer owes loyalty to his client not only in the case in which he has represented

him but also after the relation of attorney and client has terminated because it is not good practice to permit him afterwards to defend in another case another person against his former client under the pretext that the case is distinct from, and independent of, the former case.

It is improper for a lawyer to appear as counsel for one party against the adverse party who is his client in another totally unrelated action. The attorney in that situation will not be able to pursue, with vigor and zeal, the client’s claim against the other and to properly represent the latter in the unrelated action; or, if he can do so, he cannot

avoid being suspected by the defeated client of disloyalty of partiality in favor of the successful client

New client against former client

A lawyer cannot represent a new client against a former client only when the subject matter of the present controversy is related, directly of indirectly, to the subject matter of the previous litigation in which he appeared for the former client. He may properly act as counsel for a new client, with full disclosure to the latter, against a former client in a matter wholly unrelated to that of the previous employment, there being no conflict of

interests.

Reason: what a lawyer owes to former client is to maintain inviolate the client’s confidence or to refrain from doing anything which will injuriously affect him in any matter which he previously represented him; in this case, duty does

not arise

Where subject matter of present suit between the lawyer’s new client and his former client is in some way connected, prohibition applies even if no confidential information was acquired

Conflicting duties

A lawyer may not, as an employee of a

corporation whose duty is to attend to its legal affairs, join a labor union of employees in that corporation because the exercise of the union’s rights is


LEGAL ETHICS

incompatible with his duty as a lawyer for his corporate client

A lawyer may not, as counsel for a client, attack the validity of the instrument prepared by him

Attorney’s interest vs. Client’s interest

An attorney should not put himself in a position where self-interest tempts him to do less than his best for his client. (e.g., it is improper to have financial stakes in subject matter of suit brought on behalf of

his client)

Rule applicable to law firm

Where a lawyer is disqualified or forbidden from appearing as counsel in a case because of conflict of interests, the law firm of which he is a member as well as any

member, associate or assistant is similarly disqualified or prohibited from so acting.

This rule is a corollary of the rule that the employment of one member of a law firm is considered as an employment of the law

firm and that the employment of a law firm is equivalent to a retainer of the members thereof.

Notes from Agpalo:

The canon therefore is required by necessity and public interest and is based on the hypothesis that abstinence from seeking legal advice in a good cause is an evil which is fatal to the administration of

justice.

The disclosure is more for the protection of the lawyer than that of the client, so that the client may not lose confiden

ce in him, which may even affect his fee. If the lawyer does not disclose anything, a client may assume the lawyer has no interest which will interfere with his devotion to the cause confided to him or betray his judgment.

For attorney-client privilege to apply, however, the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to

crime intended

to be committed in the future.

(if past, privilege applies; if future, does not apply) In order that a communication between a lawyer and his client be privileged, it must be for a lawful purpose or in the furtherance of a lawful end. (People v. Sandiganbayan, 275

SCRA 505 (1996))

The general rule is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of his client. The reasons for this are that:

o The Court has a

right to know that the client whose privileged information is sought to be protected is flesh and blood.

The privilege begins to exist only after the attorney-client relationship has been established. The privilege does not attach

until there is a client.

o

The privilege pertains to the subject matter of the relationship.

Due process considerations require that the opposing party should know his adversary. (Metaphor: He cannot be obliged to grope in the dark against unknow

n forces.)

The general rule is however qualified by some exceptions. Client identity is privileged

Where a strong probability exists that revealing the client’s name would implicate

the client in the very activity for which he sought the lawyer’s advice.

o

Where disclosure would open the client to civil liability.

Where the government’s lawyers have no case against an attorney’s client unless

by revealing the client’s name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime.

Information relating to the identity of the client may fall within the ambit of the privilege when the client’s name itself has an independent significance, such that disclosure would then reveal client confidences. (Regala v. Sandiganbayan,

262 SCRA 122 (1996))

Limitations to

general rule

The prohibition against representing conflicting interests does not apply:

where no conflict of interests exists (e.g. a lawyer may represent new client against former client where both actions are unrelated and where lawyer will not be called to oppose what he had espoused on behalf of former client not use confidential info against former client.)

where the clients knowingly consent to dual representation in writing

Lawyer may represent conflicting interests before it reaches the court but only after full disclosure of the facts and express written consent of all parties.

Where representation by a lawyer is for both opposing parties, their written consent may enable the lawyer to represent them before but not after their controversy has reached the court. After the controversy has reached the court, the lawyer cannot, even with the parties’ written consent, represent both of them without being held administratively

liable as an officer of the court.

Disclosure should include thorough explanation of nature and extent of conflict and possible adverse effects of dual representation. This should include disclosure of the lawyer’s present and/or former clients who have conflicting interests.

Advantage: a mutual lawyer, impartial and with honest motivations, may be better situated

to work out an acceptable settlement since he has confidence of both parties

A lawyer may represent new client against former client only after full disclosure and written consent. Former client’s written consent constitutes a release from obligation to keep inviolate the client’s confidences or to desist from injuriously affecting him in any matter which he previously represented.

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Where circumstances show parties require independent counsel, or where lawyer may be suspected of disloyalty, he should immediately withdraw from the case.

General rule that a lawyer may be allowed to represent conflicting interests, where parties consent, applies only where one is a former client and the other is a new one, not where both are current clients.

Lawyer may not represent conflicting interests, even with consent, where the conflict is between the attorney’s interest and that of a client (self-interest should yield to client’s interest) or between a private client’s interest and that of the gov’t or any of its instrumentalities (public policy and public interest forbid dual representation).

where no true attorney-client relationship is attendant

Absence of true attorney-client relationship either with the attorney or with the law firm of which he is a member makes the prohibition inapplicable.

Exception: attorney’s secretary, stenographer or clerk who, in such capacity, has acquired confidential information from attorney’s client, may not accept employment or, after admission to the bar, represent an interest adverse to that of atty’s client.

Effects of representation of conflicting interests o Representation of conflicting interests

subjects the lawyer to disciplinary action. The reason is that the representation of conflicting interests not only constitutes malpractice but also a violation of the confidence which results from the attorney-client relationship, of the oath of a lawyer (in that he did not serve his client’s interest well) and of his duty to both the client and the court.

If representation of conflicting interests is unknown and works prejudice against new client, judgment against the latter may be set aside. Basis: a lawyer disqualified from appearing on account of inconsistency of duties is presumed to have improperly and prejudicially advised and represented the party from beginning to end of litigation.

Two questions to be asked:

Did the attorney discharge or have opportunity to discharge conflicting interests?

Did the new client suffer prejudice? If yes to both, adverse judgment against new

client may be justified.

Attorney’s right to be paid for his services to former client may be affected by representation of conflicting interests, only if 2 matters are related and the former client objected to such representation. But new client may not defeat attorney’s right to fees in the absence of concealment and prejudice by reason of attorney’s previous professional relationship with opposing party.

LEGAL ETHICS

There is conflict of interest when a lawyer represents inconsistent interest of two or more opposing parties. The test is whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim, but it is his duty to oppose it for the other client. Also, if the acceptance of the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation to use against his first client any knowledge acquired through their connection. Another test is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double-dealing in the performance thereof. (Hornilla v. Salunat (2003))

III. Rule 15.02. A lawyer shall be bound by the rule on privileged communication in respect of matters disclosed to him by a prospective client.

Art. 209 Revised Penal Code. Betrayal of trust by an attorney. or solicitor.—Revelation of Secrets.—In addition to the proper administrative action, …shall be imposed upon an attorney-at-law or solicitor (procurador judicial) who, by any malicious breach of professional duty or of inexcusable negligence or ignorance, shall prejudice his client, or reveal any of the secrets of the latter learned by him in his professional capacity.

Exceptions to privilege (Aguirre):

When a lawyer is accused by the client and he needs to reveal information to defend himself

When the client discloses the intention to commit a crime or unlawful act. (Future crime)

For attorney-client privilege to apply, however, the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. (if past, privilege applies; if future, does not apply) In the present case, testimony sought to be elicited from Sansaet are communications made to him by physical acts and/or accompanying words of Paredes at the time he and Honrada, either with active or passive participation of Sansaet, were about to falsify, or in the process of falsifying, the documents which were later filed by Sansaet in the Tanodbayan. Crime of falsification had not yet been committed, hence, they are not covered by the privilege. It could also not have been covered by the privilege because Sansaet was himself a conspirator in the commission of the crime of falsification. In order that a communication between a lawyer and his client be privileged, it must be for a lawful purpose or in the furtherance of a lawful end. On the contrary, Sansaet, as lawyer, may be bound to disclose the info at once in the interest of justice. (People v. Sandiganbayan (1997))


IV. Rule 15.04. A lawyer may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in settling disputes.

An attorney’s knowledge of the law and his reputation for fidelity may make it easy for the disputants to settle their differences amicably. However, he shall not act as counsel for any of them. (Agpalo)

V. 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 understanding the prospects of the case.

A lawyer is bound to give candid and honest opinion on the merit or lack of merit of client’s case, neither overstating nor understating the prospect of the case. He should also give an honest opinion as to the probable results of the case, with the end in view of promoting respect for the law and the legal processes. (Agpalo)

VI. Rule 15.06. A lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body.

This rule protects against influence peddling. Some prospective clients secure the services of a particular lawyer or law firm precisely because he can exert a lot of influence on a judge and some lawyers exact big fees for such influence (Agpalo)

VII. Rule 15.07. A lawyer shall impress upon his client compliance with the laws and the principles of fairness.

Art. 19 Civil Code. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith.

Notes from Agpalo:

o A lawyer is required to represent his client

within the bounds of the law. The CPR enjoins him to employ only fair and honest means to attain the lawful objectives of his client and warns him not to allow his client to dictate procedure in handling the

case. He may use arguable construction of the law or rules which are favorable to his client. But he is not allowed to knowingly advance a claim or defense that is unwarranted under existing law.

A lawyer should comply with the client’s lawful requests. But he should resist and should never follow any unlawful instructions. In matters of law, it is the client who should yield to the lawyer and

not the other way around.

A lawyer must also observe and advice his client to observe the statute law, thought until a statute shall have been construed and interpreted by competent jurisdiction, he is free and is entitled to advice as to its validity and as to what he conscientiously believes to be its just meaning and extent

VIII. Rule 15.08. A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall

LEGAL ETHICS

make clear to his client whether he is acting as a lawyer or in another capacity.

Exercise of dual profession is not prohibited but a lawyer must make it clear when he is acting as a lawyer and when he is otherwise, especially in occupations related to the practice of law. Reason: certain ethical considerations may be operative in one profession and not in the other. (Agpalo)

A lawyer is not barred from dealing with his client but the business transaction must be characterized with utmost honesty and good faith. Business transactions between an attorney and his client are disfavored and discouraged by policy of law because by virtue of a lawyer’s office, he is an easy position to take advantage of the credulity and ignorance of his client. Thus, there is no presumption of innocence or improbability of wrongdoing in favor of lawyers. MOREOVER, the proscription against representation of conflicting interests finds application where the conflicting interests arise with respect to the same general matter and is applicable however slight such adverse interest may be. It applies although the attorney’s intentions and motives were honest and he acted in good faith. Representation of conflicting interests may be allowed where the parties give an informed consent to the representation after full disclosure of facts. The lawyer must explain to his clients the nature and extent of the conflict and the possible adverse effects must be thoroughly understood by his clients. The test to determine whether there is conflict of interest in the representation is the probability, not the certainty of conflict.

(Nakpil v. Valdez, 286 SCRA 758 (1998))21

21 FACTS: Atty. Carlos Valdes was the lawyer and accountant of the Nakpils. In 1965, Jose Nakpil wanted to buy a summer residence in Baguio City but because of lack of funds, he agreed that Valdes would keep the property in trust until the Nakpils could buy it back. Valdes took out two loans to purchase the property. In 1973, Jose Nakpil died. The ownership of the Baguio property became an issue in the intestate proceedings as Valdes excluded it from the inventory of Jose’s estate. In 1978, Valdes transferred his title to the property to his company. The estate filed an action for reconveyance and the adminstratix filed an administrative case to disbar Valdes for (1) maliciously appropriating the property in trust to his family corporation (2) including in the claims against the estate the amounts of the two loans which he claimed were Jose’s loans “probably for the purchase of a house and lot in Moran St., Baguio City and (3) for conflict of interest, since his auditing firm prepared the list of claims of creditors who were also represented by his law firm. The SC suspended Valdes from the practice of law for one year


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