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 consciousness.

CANON 6: THESE CANONS SHALL APPLY TO LAWYERS IN GOVERNMENT SERVICE IN THE DISCHARGE OF THEIR OFFICIAL DUTIES

- Lawyer serving as public officials do not shed their professional obligations as members of the bar; in fact, they should be more sensitive to their official obligations because disreputable conduct will be magnified before the public eye

RULE 6.01: THE PRIMARY DUTY OF A LAWYER IN PUBLIC PROSECUTION IS NOT TO CONVICT BUT TO SEE THAT JUSTICE IS DONE. THE SUPPRESSION OF FACTS OR CONCEALMENT OF WITNESSES CAPABLE OF ESTABLISHING THE INNOCENCE OF THE ACCUSED IS HIGHLY REPREHENSIBLE AND IS CAUSE FOR DISCIPLINARY ACTION

The public prosecutor should make sure that the guilty shall not escape but must take pains to ensure the innocent do not suffer. Political and other personal considerations should not affect him in the exercise of his duty. Wrongful convictions secured through irregular and foul means contravene the spirit of justice within the law and before the courts. Private prosecutors may be hired if the offended party is entitled to indemnity but has expressly reserved the right to institute a separate civil action. However, the private prosecutor should be under the public prosecutors control and the latter should never delegate his duties to the former.RULE 6.02: A LAWYER IN GOVERNMENT SERVICE SHALL NOT USE HIS PUBLIC POSITION TO PROMOTE OR ADVANCE HIS PRIVATE INTERESTS NOR ALLOW THE LATTER TO INTERFERE WITH HIS PUBLIC DUTY

This applies particularly to lawyers in public office who are allowed to practice in private, by law or by government permission. The private practice should never interfere with the official undertakings.

RA 6713, Secs. 7b-7c lay down the following:

1. No ownership, employment or professional association with a private firm regulated, supervised or licensed by the officials office unless law expressly allows such

2. No private practice of profession unless expressly authorized by law and such does not interfere with official functions

3. No recommendation of any person to any post in a private enterprise which has regular or pending official transaction with officials office

4. No revelation or usage of confidential or classified information officially known by civil servant by virtue of his public capacity and unavailable to the public to further private interests or to the prejudice of the public

RULE 6.03: A LAWYER SHALL NOT, AFTER LEAVING THE GOVERNMENT SERVICE, ACCEPT ENGAGEMENT OR EMPLOYMENT IN CONNECTION WITH ANY MATTER IN WHICH HE HAD INTERVENED

- The restriction covers engagement or employment which will involve or relate with a matter in which he intervened as a public official, except in behalf of the body which he served during his public employment

- RA 6712, Sec. 7b : A former public servant cant practice his profession for a period of 1 yr after leaving his post in connection with any matter before the office he used to be with

- RA 3019, Sec 3d: Dont accept or allow family members to accept private employment which has pending official business with officials office during such pendency or within 1 yr after its termination

II. LAWYER AND THE LEGAL PROFESSION

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

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

A student aspiring to be a lawyer must, at that early period, study and observe the duties and responsibilities of a lawyer (show fitness to be admitted to the BAR by adherence to CPR)

Rule 138 , Secs. 2, 5 & 6: No applicant shall be admitted to the BAR unless s/he is a, at the TIME OF ADMISSION:

1. Citizen and Resident of the Philippines (full allegiance to its laws)

2. At least 21 years old

3. A person of good moral character (continuing requirement)

4. No charges involving moral turpitude filed or pending (disclosure of any involvement in any criminal case)

5. Proper educational qualifications (4 yr HS; 4 yr BA or BS with required units in pol sci, philo, engl, hist, econ or span; 4 yr LL B at reputable law school with completed units in BAR subject courses)

6. BAR EXAM Passer

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

Every lawyer has the duty to uphold the integrity and dignity of the profession by helping the SC screen potential Bar members by recommending the qualified and exposing the unworthy.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 SCNDALOUS MANNER TO THE DISCREDIT OF THE PROFESSION

Any unbecoming behavior of a lawyer, whether in public or private life, will adversely affect the standing of the profession before the eyes of the public

Gross immorality shows that a lawyer is unfit to practice (observance of the communitys moral standards is mandatory)

Conviction of a crime involving moral turpitude (involving fraud, deceit or falsehood) tarnishes a lawyers moral consciousness

CANON 8: A LAWYER SHALL CONDUCT HIMSELF WITH COURTESY, FARINESS AND CANDOR TOWARD HIS PROFESSIONAL COLLEAGUES AMD SHALL AVOID HARASSING TACTICS VS. OPPOSING COUNSEL

- The highest reward that can come to a lawyer is the esteem of his professional brethren, won in unique conditions and proceeds from an impartial judgement in professional trials

- Such esteem is commanded solely by integrity of character and skills used in the honorable performance of professional duty

RULE 8.01: A LAWYER SHALL NOT, IN PROFESSIONAL DEALINGS, USE LANGUAGE THAT IS ABUSIVE, OFFENSIVE OR OTHERWISE IMPROPER

An lawyers arguments, written or oral, should be graceful to the court and to the opposing counsel, characterized by dignity, courtesy and civility Dont take legal battles in court personally and avoid bickeringsRULE 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 FEAROR FAVOR, TO GIVE PROPER ADVICE OR ASSISTANCE TO THOSE SEEKING RELIEF VS. UNFAITHFUL OR NEGLECTFUL COUNSEL

Never compete with other lawyers in trying to secure clients nor take over a case as a substituting counsel unless the proper formalities are observed and the previous counsel is notified of the termination of his services Never negotiate with the opposing party without consulting the latters counsel, if any Never get offended if a client hires an associate counsel in a case as it may not necessarily mean that there is a want of confidence in the original counsel and in case of conflict between associate counsels, ask the client to decideCANON 9: A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY, ASSIST THE UNAUTHORIZED PRACTICE OF LAW

* practice of law: any activity in or out of court which requires the application of law, legal principle, practice or procedure and calls for legal knowledge, training and experience (pre-supposes the existence of an attorney-client relationship)

:Only those who are admitted to the bar, in good standing, observant of basic legal ethics and continually subject to the SCs disciplinary power may engage in the practice of law (except for existing legal exceptions) :includes legal advice, representation, drafting pleadings and other legal documents

CAYETANO VS. MONSOD: the Padilla dissent criteria

Habituality

Compensation

Legal knowledge

Attorney-Client relationship

RULE 9.01: A LAWYER SHALL NOT DELEGATE TO ANY UNQUALIFIED PERSON THE PERFORMANCE OF ANY TASKWHICH BY LAW MAY ONLY BE PERFORMED BY A MEMBER OF THE BAR IN GOOD STANDING

Never delegate any task involving the knowledge and application of law to a non-lawyer but law students are permitted to give assistance

RULE 9.02: A LAWYER SHALL NOT DIVIDE NOR 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 AN ASSOCIATE THAT, UPON THE LATTERS DEATH, MONEY SHALL BE PAID OVER A REASONABLE PERIOD OF TIME TO HIS ESTATE OR TO PERSONS SPECIFIED IN THE AGREEMENT;

B) WHERE A LAWYER UNDERTAKES TO COMPLETE UNFINISHED OR LEGAL BUSINESS OF A DECEASED LAWYER;

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 PROFIT-SHARING

III. LAWYER AND THE COURTS

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

- As an officer of the court, a lawyers first and foremost loyalty should be to the courts and its task to administer justice fairly and impartially (Superior Retainer)

- However, he should not remain as a meek umpire but must advocate, within proper bounds, the ends he believes to be true and just

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 AN ARTIFICE

The duties to the court must prevail over the duties to the client

The idea is to help administer justice properly, not to win at whatever cost

RULE 10.02: A LAWYER SHALL NOT KNOWINGLY MISQUOTE OR MISREPRESENT THE CONTENTS OF A PAPER, THE LANGUAGE OR THE ARGUMENT OF THE OPPOSING COUNSEL OR THE TEXT OF A DECISION OR AUTHORITY OR KNOWINGLY CITE AS LAW A PROVISION ALREADY RENDERED INOPERATIVE OR ASSERT A FACT WHICH HAS NOT BEEN PROVED

Article 8 NCC: Judicial decisions form part of the laws of the land Violations of R10.02 are invitations for CONTEMPT citationsRULE 10.03: A LAWYER SHALL OBSERVE THE RULES OF PROCEDURE AND SHALL NOT MISUSE THEM TO DEFEAT THE ENDS OF JUSTICE

The existing legal procedures and remedies are means to secure justice for meritorious causes; Such should not be subverted nor prostituted to unjustly trample upon anothers legal right or claim (eg. Forum-shopping, multiple suits, etc.)CANON 11: LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE COURTS AND JUDICIAL OFFICERS AND SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS

-Respect of courts help build the high esteem and regard toward them which is essential to the proper administration of justice

- Obey lawful court orders and defend judges from criticisms who cant defend themselves

RULE 11.01: A LAWYER SHALL APPEAR IN COURT PROPERLY ATTIRED

Improper attire and unkempt grooming are invitations for CONTEMPT citations

For men: Barong Tagalog or a Western Suit (Coat and Tie)

For women: Tailored pantsuits, skirt suits or well-cut dresses (knee-length at most), etc.

RULE 11.02: A LAWYER SHALL PUNCTUALLY APPEAR AT COURT HEARINGS

Habitual tardiness or absence may prejudice the clients rights in courtRULE 11.03: A LAWYER SHALL ABSTAIN FROM SCANDALOUS, OFFENSIVE OR MENACING LANGUAGE BEFORE THE COURTS

Dignified and courteous language is a must before the courts at all times, at whatever form (Zeal in defending a cause does not excuse improper language and does not count as a defense when cited for contempt)

A judge should also be courteous to the counsels to merit respect

RULE 11.04: A LAWYER SHALL NOT ATTRIBUTE TO A JUDGE MOTIVES NOT SUPPORTED BY THE RECORD OR HAVE NO MATERIALITY TO THE CASE

Criticism of judicial decision and actions are part of protected speech unless such crosses the boundaries of impropriety or exerts pressure (viz. stirs up public opinion) on the judge, to the prejudice of the litigants before him - - - - proper remedy: CONTEMPT OF COURTRULE 11.05: A LAWYER SHALL SUBMIT GRIEVANCES AGAINST A JUDGE TO THE PROPER AUTHORITIES ONLY

In filing administrative cases before the judge, the causes should be well-grounded and not merely speculative, bred by revenge or hate for the judges past actionsCANON 12: A LAWYER SHALL EXERT EVERY EFFORT AND CONSIDER IT HIS DUTY TO ASSIST IN THE SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE

- A lawyer may be able to help the court in the due and orderly administration of justice by doing no act that obstructs, perverts or impedes the administration of justice and by faithfully complying with all his duties to the courts and to his clients.

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 PREFERENCE. HE SHOULD ALSO BE READY WITH THE ORIGINAL DOCUMENTS FOR COMPARISON WITH THE COPIES

Lawyers who come to court unprepared will unduly delay the proceedings, unfairly burdening the courts for no valid cause and endangering the rights of the litigantsRULE 12.02: A LAWYER SHALL NOT FILE MULTIPLE ACTIONS ARISING FROM THE SAME CAUSE

The lawyer should not subvert the ends of justice by prostituting legal remedies to the detriment of the adverse litigants rights

FORUM SHOPPING: improper practice of going from one court to another, seeking relief by filing various suits involving the same substantial matter (TEST: Presence of litis pendencia or Existence of res judicata)

SC Circular No. 28-91: Inform the SC, if filing an action before such, on WON there are other pending suits or actions in other courts involving the same issues raised

Rules of Court: Litigant must submit the a forum-shopping certification along with the signed pleading for verification

Lawyer must temper clients propensity to litigate (Rules 1.03 and 1.04) and discourage (but wait for clients decision before taking action) an appeal if such if futile

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 AND EXPLANATION FOR HIS FAILURE TO DO SO

Always file necessary briefs on time and in asking for time extensions, ascertain there are valid reasons behind such Never fail to explain before the court why nothing was filed after the extension expires since such would show discourtesy to the courtRULE 12.04: A LAWYER SHALL NOT UNDULY DELAY A CASE, IMPEDE THE EXECUTION OF A JUDGMENT OR MISUSE THE COURT PROCESS

Never use legal remedies to subvert the ends of justice by impeding a judicially-upheld legal right lest the wronged party be deprived of what is due him

RULE 12.05: A LAWYER SHALL REFRAIN FROM TALKING TO HIS WITNESS DURING ABREAK OR RECESS IN THE TRIAL, WHILE THE WITNESS IS STILL UNDER EXAMINATION

Avoid any suspicion that would make it appear one is coaching the witnessRULE 12.06: A LAWYER SHALL NOT KNOWINGLY ASSIST A WITNESS TO MISREPRESENT HIMSELF OR IMPERSONATE ANOTHER

Avoid any action that would make it appear that there is an attempt to influence what the witness will say in courtRULE 12.07: A LAWYER SHALL NOT ABUSE, BROWBEAT OR HARASS A WITNESS NOR NEEDLESSLY INCONVENIENCE HIM

Always treat witnesses with fairness and courtesy

RULE 12.08: A LAWYER SHALL AVOID TESTIFYING IN BEHALF OF HIS CLIENT, EXCEPT:

a) ON FORMAL MATTERS (MAILING, AUTHENTICATION OF INSTRUMENTS, CUSTODY OF SUCH, ETC.)

b) SUBSTANTIAL MATTERS (TESTIMONY IS ESSENTIAL TO THE NEEDS OF JUSTICE)

The underlying reason for the impropriety of a lawyer acting in such dual capacity lies in the difference between the functions of a WITNESS (objective and truthful statement of relevant facts) and an ADVOCATE (partisan view and acts to stress a cause)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

- The judiciary, as the branch of government responsible for the administration of justice, must be independent and free from outside interference

RULE 13.01: A LAWYER SHALL NOT EXTEND EXTRAORDINARY ATTENTION OR HOSPITALITY TO, NOR SEEL OPPORTUNITY FPR CULTIVATING FAMILIARITY FOR JUDGES

Marked attention, unusual hospitality and any other act which makes it appear that the lawyer is seeking to cultivate stronger ties to the judge and prohibited (mere suspicions about the lawyers motives should be avoided at all times)

RULE 13.02: A LAWYER SHALL NOT MAKE PUBLIC STATEMENTS IN MEDIA REGARDING A PENDING CASE ATTEMPTING TO AROUSE PUBLIC OPINION FOR OR AGAINST A PARTY

Holding media events, public demonstrations and other activities which rouse public opinion regarding a pending case must be avoided Concluded litigations may be criticized in a decent and respectful manner but pending ones should not be as such may influence the decision of the judge (Proper remedy: CONTEMPT) The lawyer has the duty to expose any wrongdoings within the machinery of justice in a courteous manner and before the proper forumRULE 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

Judicial independence should be protected at all times

IV. LAWYER AND THE CLIENT

- A lawyer is an advocate who can choose what business to accept, except when PUBLIC RESPONSIBILITY mandates that he RENDER LEGAL SERVICES TO THE NEEDY AND THE OPPRESSED who are unable to pay

- An attorney-client relationship is strictly personal, characterized as highly confidential and fiduciary

- RETAINER: act of engaging the services of a lawyer ( General secure services beforehand for any anticipated legal problem; Special secure services for a particular case)

- RETAINING FEE: a preliminary fee to insure future services and compensate lawyer for the opportunity cost of being tied down to a particular client (avoid conflict of interest with other prospective clients); this does not cover the fees for actual and specific legal services

- A lawyer cant counsel or represent a client without an express or implied CONTRACT OF EMPLOYMENT WITH A CLIENT (Documentary formalities are convenient proofs but not necessary since what is important is to ESTABLISH THE PROFESSIONAL RELATION THAT THE ADVICE AND ASSISTANCE OF AN ATTORNEY IS SOUGHT AND RECEIVED IN A MANNER PERTAINING TO HIS PROFESSION)

- In a law firm, the lawyers affiliated therein are considered as one entity (it is the FIRM that is actually engaged for services, though different PARTNERS or ASSOCIATES render such services in its name)

CANON 14: A LAWYER SHALL NOT REFUSE HIS SERVICES TO THE NEEDY

- The lawyer has a public responsibility to correct socio-economic imbalances by providing legal services to those in dire need of such

RULE 14.01: A LAWYER SHALL NOT DECLINE TO REPRESENT A PERSON SOLELY ON THE ACCOUNT OF THE LATTERS RACE, SEX, CREED, OR STATUS OF LIFE, OR BECAUSE OF HIS OPINION AS REGARDS TO THE GUILT OF THE PERSON

A lawyer must not act as a judge and immediately pass judgment upon the accused, who is entitled to the constitutional presumption of innocence until his guilt is proven beyond reasonable doubt

In a civil action, rules prohibit a lawyer from taking a bad case

1. Sign the pleadings pages to certify its good cause

2. Take only cases one honestly believes to be meritorious

3. Never delay or stir up suits due to improper motives

4. Dont accept cases which are baseless and made in bad faith

RULE 14.02: A LAWYER SHALL NOT DECLINE, EXCEPT FOR SERIOUS AND SUFFICIENT CAUSE, AN APPOINTMENT AS COUNSEL DE OFICIO OR AMICUS CURIAE OR AN IBP REQUEST FOR RENDITION OF FREE LEGAL AID

Frequent appointment of an attorney as counsel de oficio is discouraged as not to burden the latter and his clients too much

RULE 14.03: A LAWYER MAY REFUSE TO ACCEPT REPRESENTATION OF AN INDIGENT CLIEND IF:

A) HE IS NOT IN THE POSITION TO CARRY OUT THE WORK EFFECTIVELY AND COMPETENTLY

B) HE LABORS UNDER CONFLICT OF INTEREST BETWEEN HIM AND THE PROSPECTIVE CLIENT OR BETWEEN THE PRESENT CLIENT AND THE PROSPECTIVE ONE

RULE 14.04: A LAWYER WHO ACCEPTS THE CAUSE OF A PERSON UNABLE TO PAY HIS LEGAL FEES SHALL OBSERVE THE SAME STANDARD OF CONDUCT GOVERNING HIS RELATIONS WITH PAYING CLIENTS

Failure of the client to pay is not a valid excuse to abandon the latters cause, especially if such failure is not characterized by malice or fraud

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 ASAP WHETHER THE MATTER WILL INVOLVE A CONFLICT WITH ANOTHER CLIENT OR HIS OWN INTEREST AND IF SO, SHALL INFORM THE PROSPECTIVE CLIENT FORTHWITH

Concealment of facts from the client by a lawyer will lessen the formers confidence in the latter and open said lawyer to suspicions of possible betrayal or lack of devotion

Decline employment, no matter how lucrative, if the circumstances of such will make it appear that the lawyer has improper motives or that he is transgressing the professions ethics

RULE 15.02: A LAWYER SHALL BE BOUND BY THE RULE ON PRIVILEGED COMMUNCATION IN RESPECT OF MATTERS DISCLOSED TO HIM BY A PROSPECTIVE CLIENT

The intent here is to enable the client to communicate to the lawyer any pertinent information without fear of being betrayed by the latter

RULE 15.03: A LAWYER SHALL NOT REPRESENT CONFLICTING INTERESTS EXCEPT UPON WRITTEN CONSENT OF ALL CONCERNED GIVEN AFTER FULL DISCLOSURE OF THE FACTS

Inform all parties concerned of the situation and the nature and extent of the supposed conflict (intent: INFORMED DECISION must be made)RULE 15.04: A LAWYER MAY, UPON WRITTEN CONSENT OF ALL CONCERNED, ACT AS MEDIATOR, CONCILIATOR OR ARBITRATOR IN SETTLING DISPUTES

Take this rule in relation to R1.04, R15.07, etc.

RULE 15.05: A LAWYER WHEN ADVISING HIS CLIENT SHALL GIVE A CANDID AND HONEST OPINION ON THE MERITS AND PROBABLE RESULTS OF THE CLIENTS CASE, NEITHER OVERSTATING NOR UNDERSTATING THE PROSPECTS OF SUCH

The purpose here is to administer justice and protect the rights of the injured, whether or not s/he is ones client (SUPREME RETAINER to the justice system)

RULE 15.06: A LAWYER SHALL NOT STATE OR IMPLY THAT HE IS ABLE TO INFLUENCE ANY PUBLIC OFFICIAL, TRIBUNAL OR LEGISLATIVE BODY

Take this rule in relation to Canon 13

RULE 15.07: A LAWYER SHALL IMPRESS UPON HIS CLIENTS COMPLIANCE WITH THE LAWS AND PRINCIPLES OF FAIRNESS

Take this rule in the context of Canons 10, 11, 12 and 17

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

The client has a right to know since he has the last say on WON to continue with the attorney-client relationship Taken in relation to R7.03, where a lawyer may be disciplined for any improper acts performed in whatever capacityV. LAWYER AS TRUSTEE OF CLIENTS PROPERTY

CANON 16: A LAWYER SHALL HOLD IN TRUST ALL MONEY(S) AND/OR PROPERTY RECEIVED FROM AND/OR FOR THE CLIENT

- A fiduciary relationship exists as a matter of law between attorney and client, which requires all dealings growing out of such relationship to be subject to the closest judicial scrutiny

- Attorney should not transact with the client in financial matters that would disadvantage the latter (intent: prevent the lawyer from preying on clients weakness)

- Art. 1491 of NCC prohibits the lawyer and other court officers from purchasing property in litigation:

1. Attorney-client relationship exists

2. Property is the subject of litigation

3. Attorney takes part in said litigation

4. Purchase done during the pendency of such

* Exceptions to the rule:

1. ACR terminated in good faith prior to purchase

2. Lawyer buys/bids for property on behalf of client

3. Contingent fee contract upon the outcome of litigation

RULE 16.01: A LAWYER SHALL ACCOUNT FOR ALL MONEY AND PROPERTY COLLECTED OR RECEIVED FOR OR FROM CLIENT

No unilateral appropriation of funds without asking and securing clients consent

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

Take good care of clients property since the ACR is characterized by a high degree of trust and fidelity

RULE 16.03: A LAWYER SHALL DELIVER THE FUNDS AND PROPERTY TO HIS CLIENTWHEN DUE OR UPON DEMAND. HOWEVER, HE SHALL HAVE A LIEN OVER THE FUNDS AND MAY APPLY TO SATISFY FEES AND DISBURSEMENTS, GIVING CLIENT PROMPT NOTICE. HE SHALL ALSO HAVE A LIEN ON ALL JUDGMENTS AND EXECUTIONS SECURED FOR HIS CLIENT

Failure to return clients property upon demand gives rise to a presumption of misappropriation

RULE 16.04: A LAWYER SHALL NOT BORROW MONEY FROM HIS CLIENT UNLESS THE CLIENTS INTERESTS 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 BEING HANDLED BY HIM

Never engage the client in a debtor-creditor relationship unless the latters rights are fully secured or it is really necessary in the interest of justiceVI. ENTIRE DEVOTION TO CLIENTS CAUSE

CANON 17: A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE IN HIM

- Once the lawyer takes up clients cause, he must entirely devote himself to such within reasonable bounds

- The client is entitled to the benefit of possible legal remedy or defense and he can expect his lawyer to assert such for him

- Negligence or infidelity to clients cause will subvert the administration of justice and prejudice the rights of the litigantCANON 18: A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE

- The lawyer has the duty to serve the client in order to safeguard the latters rights

RULE 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

Never take a case involving a specialized legal field without any knowledge of such (see R8.02 for a possible remedy)RULE 18.02: A LAWYER SHALL NOT HANDLE ANY LEGAL MATTER WITHOUT ADEQUATE PREPARATION

Take note of R12.01, Canon 4 & 5RULE 18.03: A LAWYER SHALL NOT NEGLECT A LEGAL MATTER ENTRUSTED TO HIM, AND HIS NEGLIGENCE SHALL RENDER HIM LIABLE

Standard of care: Reasonable/ Ordinary diligence

RULE 18.04: A LAWYER SHALL KEEP THE CLIENT INFORMED OF THE STATUS OF HIS CASE AND SHALL RESPOND WITHIN A REASONABLE TIME TO CLIENTS REQUEST FOR INFORMATION

The client is entitled to the fullest disclosure of how his case is being handled since his rights are at stakeCANON 19: A LAWYER SHALL REPRESENT THE CLIENT WITHIN THE BOUNDS OF LAW

- The duty to render efficient service in defending clients cause should not defeat the purpose of the legal system, which is to administer justice to those in dire need of such

RULE 19.01: A LAWYER SHALL EMPLOY ONLY FAIR AND HONEST MEANS TO ATTAIN THE LAWFUL OBJECTIVES OF THE CLIENT AND SHALL NOT PRESENT, PARTICIPATE OR THREATEN TO PRESENT UNFOUNDED CRIMINAL CHARGES TO OBTAIN IMPROPER ADVANTAGE

Only fair and honest means are to be used in serving the client, since it is presumed the lawyer believes the latters cause to be meritorious Take the ff. into account: R15.07, R12.02, etc.RULE 19.02: A LAWYER WHO HAS RECEIVED INFORMATION THAT HIS CLIENT PERPETUATED A FRAUD UPON A PERSON OR TRIBUNAL SHALL PROMPTLY CALL UPON THE CLIENT TO RECTIFY THE SAME AND TERMINATE THE RELATIONSHIP UPON FAILURE OF THE LATTER TO DO SO

Take the ff. into account: R1.01, R1.02, R15.07, etc.

RULE 19.03: A LAWYER SHALL NOT ALLOW THE CLIENT TO DICTATE THE PROCEDURE IN HANDLING THE CASE

Ask for clients opinion on how to go about with the matter but never let him take control of the actual legal handling of the case (R15.07)VII. AUTHORITY OF LAWYER

A. IN GENERAL

1. POWER TO BIND THE CLIENT: The professional employment of an attorney confers upon him to do on behalf of his client such acts as are necessary or incidental to the prosecution or management of the suit entrusted to him or the accomplishment of the purpose for which he was retained

2. ATTORNEY AS CLIENTS AGENT: Outside the court, the ordinary agent test applies; Inside the court, officer of the court test applies

3. COLLECTION OF CLAIMS: The authority to collect does not include the authority to lower the amount, condone the debt, unilaterally appropriate the amount collected, etc.

4. ACCEPTANCE OF SERVICE OF SUMMONS: Authority to accept summons not necessarily implied in ACR

5. DELEGATION OF AUTHORITY: Never delegate to another lawyer tasks entrusted by the client unless the latter gave consent or ratified such delegation

6. DELEGATION OF LEGAL WORK: In law firms or partnerships, the legal work may be delegated to the associated since the logic here is that the FIRM was the one hired to represent the client

B. AUTHORITY TO APPEAR

1. WHAT IS APPEARANCE: Appearance refers to the lawyers appearance in court in behalf of the client asking relief from such, binding upon the clients retention or the courts authorization (voluntary submission to courts jurisdiction)

2. TYPES OF APPEARANCE: General (implies voluntary submission to courts jurisdiction) and Special (appearance solely to contest the courts jurisdiction over the client/ matter)3. PRESUMPTION OF AUTHORITY TO APPEAR: A lawyer is presumed to hav the authority to appear but this may be challenged by the adverse party or the purported client himself

4. DISCLOSURE OF AUTHORITY: Once the authority to appear is challenge, the court may require the attorney to prove his authority to appear by presenting evidence indicating the existence of the ACR/retainer

5. UNAUTHORIZED APPEARANCE: Unauthorized appearance will not bind the purported client and the erring lawyer will be cited for CONTEMPTC. CONDUCT OF LITIGATION

- In the conduct of litigation, the claim sued upon and the subject matter of the litigation (SUBSTANTIAL compromise, ratification, waiver of rights, dismiss/settle cause, etc.) is within the clients exclusive control while the lawyer can bind the client in matters of ordinary judicial procedure (PROCEDURAL procedural questions, admissions, stipulations, etc. )D. MATTERS PERTAINING TO CLIENT

1. KNOWLEDGE ACQUIRED BY LAWYER: See R15.02, Canon 212. NOTICE, ITS EFFECTS AND MODES OF SERVICE: Notice to counsel on record is notice to client unless:

a. There are 2 lawyers and there is an agreement that only one of them is to receive said notice

b. There is the danger of collusion

c. The accused/litigant has no counsel

d. The court exercised discretion to serve notice on the litigant

Notice is usually served by mail or by personal delivery to the counsels office

3. MISTAKE OF COUNSEL BINDING UPON THE CLIENT: Generally, mistake of the attorney binds the client as regards to procedural matters

4. EXCEPTIONS TO THE MISTAKE AS BINDING RULE: The general rule does not apply if the negligence is so gross that the client is deprived of due process

VIII. COMPENSATION OF ATTORNEY

CANON 20: A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE FEES

- Although the profession is not a business, it is only fair that the lawyer be compensated for services rendered to a client and the court will protect the lawyer from clients who will attempt to defraud him

- Attorneys fees will not accrue unless there exists an ATTORNEY-CLIENT RELATIONSHIP:

1. RETAINER/EXPRESS CONTRACT: The contract for professional services may be written or oral (general retainer: secure future services/ special retainer: for actual services rendered) and general provisions of the contract laws (1305-1422 of NCC) applies concerning its validity

2. CONTINGENT FEE CONTRACT: agreement in writing wherein the fee, usually a fixed percentage of what may be recovered by the action, is made to depend upon the success in enforcing the clients rights. To be valid, it should be written, not violative any provisions of the law concerning contracts and the fee should not be unconscionable.

NB: Contracts regarding professional legal services are to be construed in favor of the client (De los Santos Vs. Palanca) and the Court will only interfere when said contracts violate the law or cause injustice to the client

3. QUANTUM MERUIT: The court will fix the attorneys compensation depending upon the nature, quantity and quality of the services he rendered, which benefited the client, if:

a. There is no agreement as to legal fees

b. The amount stipulated is unconscionable

c. Client rejects the amount as unconscionable

d. The contract is invalid for some other reason

e. Lawyer failed to complete the litigation w/o fault

- Only lawyers who actually rendered service may share in the fees (agreement/ proportion), from the time they were hired to the time of their discharge by the client or upon termination of the litigation (REFUND WHAT WAS NEVER EARNED)

- Liability for attorneys fees:

1. Client who retains counsels services

2. Those who benefited from the services (extent of benefit)

3. Assignee

4. Labor cases: union and non-union members who benefit

5. Derivative suits: all stockholders or company funds liable

6. Receivership proceedings: assets under receivership

7. Trusteeship/guardianship: trust estate/ wards property

8. Estate proceedings: estates assets (depending on its net worth) prior to distribution and the heirs in proportion to their shares, if the assets have been partitioned already

- Clients can not use their prerogative to terminate the ACR for the purpose of defrauding the lawyer and to deprive him of his rightful fees

RULE 20.01: A LAWYER SHALL BE GUIDED BY THE FOLLOWING FACTORS IN DETERMINING HIS FEES:

a) THE TIME SPENT AND EXTENT OF SERVICES RENDERED OR REQUIRED

b) NOVELTY AND DIFFICULTY OF THE QUESTIONS INVOLVED

c) IMPORTANCE OF THE SUBJECT MATTERd) SKILL DEMANDED

e) PROBABILITY OF LOSING ANOTHER EMPLOYMENTf) CUSTOMARY IBP CHARGESg) AMOUNT INVOLVED OR BENEFITS RESULTING TO CLIENT

h) CONTINGENCY OR CERTAINTY OF COMPENSATIONi) CHARACTER OR EMPLOYMENT (occasional/established)

J) PROFESSIONAL STANDING OF LAWYER

Other factors that may be considered: Test case, Capacity of client to pay, statutory limits, etc.RULE 20.02: A LAWYER SHALL, IN CASES OF REFERRAL, WITH THE CONSENT OF THE CLIENT, BE ENTITLED TO A DIVISION OF FEES IN PROPORTION TO THE WORK PERFORMED AND THE BENEFITS ASSUMED

Referral here contemplates that there was some form of additional service/ responsibility assumed by another counselRULE 20.03: A LAWYER SHALL NOT, WITHOUT CLIENTS FULL KNOWLEDGE AND CONSENT, RECEIVE COMPENSATION FROM ANOTHER

Lawyers fidelity must be devoted to the client alone

RULE 20.04: A LAWYER SHALL AVOID CONTROVERSIES WITH CLIENTS CONCERNING COMPENSATION AND SHALL RESORT TO JUDICIAL ACTION ONLY WHEN THERE IS FRAUD, IMPOSITION OR INJUSTICE

In recovering fees in case of irreconcilable conflict with client, a lawyer may take judicial action to enforce his rights:1. PETITION TO RECOVER AS THE INCIDENT OF MAIN ACTION FOR WHICH THE SERVICES WERE RENDERED: File the ancilliary petition to recover with the main action before the court concerned to avoid multiplicity of suit.

2. INDEPENDENT CIVIL ACTION: This is the remedy when the main action fails, such does not involve the services for which fees are sought from, the party litigant is not liable for fees, court trying the main action loses jurisdiction or the lawyer reserved the right to file a separate claim before the court.

3. ESTATE PROCEEDINGS: When the administrator fails to pay, file a claim (INTERVENTION IN THE SETTLEMENT) with the estate before the probate court prior to distribution of assets.

Either way, the claim to fees must be proven by the lawyer during trial but defenses in ORDINARY CIVIL SUITS apply

In case there are properties belonging to the client that are within the lawyers possession and the former refuses to pay, the lawyer MUST SECURE A COURT ORDER FOR THE ALLOWANCE OF FEES WITH NOTICE TO THE CLIENT TO GIVE THE LATTER OPPORTUNITY TO BE HEARD

Attorneys fees awarded in damages (Art. 2208) belong to the client since the court awards such in cases where the litigant was forced to come to court for relief as to ease his burden (ie. Exemplary damages, backwages, indemnities, support, etc.) such is discretionary but requires the existence of a private counsel and a money judgment

IX. PRESERVATION OF CLIENTS CONFIDENCE

CANON 21: A LAWYER SHALL PRESERVE THE CONFIDENCE AND SECRETS OF CLIENT EVEN AFTER THE ACR IS TERMINATED

- The general rule is that the duration of the duty to preserve confidence is PERPETUAL

- The attorney-client privilege attaches only where LEGAL ADVICE is sought from an ATTORNEY IN HIS PROFESSIONAL CAPACITY with respect to COMMUNICATIONS relating to that purpose, made by the CLIENT IN CONFIDENCE (evidentiary privilege may be waived by the client)

- The communication must be made in confidence (intent to classify such as confidential) by voluntary disclosure between client and lawyer, in whatever mode

- The privilege may be claimed by those hired by the client or lawyer for effective consultation or communication

- The privilege extends to PRIVILEGED MATTERS (work products like documents, computer files, etc.)

- The privilege does not extend to PRESENT OR FUTURE OFFENSES, only to past ones already committed

RULE 21.01: A LAWYER SHALL NOT REVEAL THE CONFIDENCE OR SECRETS OF CLIENT EXCEPT:

a) WHEN AUTHORIZED BY THE COURT

b) WHEN REQUIRED BY LAW

c) WHEN NECESSARY TO COLLECT FEES OR TO DEFEND SELF BY JUDICIAL ACTION

Privilege should not be used to break the law or injure others rightsRULE 21.02: A LAWYER SHALL NOT, TO THE DISADVANTAGE OF THE CLIENT, USE INFORMATION ACQUIRED IN THE COURSE OF EMPLOYMENT NOR SHALL HE USE THE SAME TO HIS OR ANOTHERS ADVANTAGE UNLESS CLIENT GAVE CONSENT UPON FULL KNOWLEDGE

The lawyer enjoys the clients full confidence; he must not do anything to take advantage of such for money or any other improper motiveRULE 21.03: A LAWYER SHALL NOT, WITHOUT THE WRITTEN CONSENT OF THE CLIENT, GIVE INFORMATION TO OUTSIDE AGENCIES

Work product of a lawyer is considered PRIVILEGED MATTERRULE 21.04: THE LAWYER MAY DISCLOSE INFORMATION TO ASSOCIATES OR PARTNERS IN THE FIRM HIRED BY THE SAID CLIENT UNLESS THE LATTER PROHIBITS SUCH

All members and employees of the FIRM are considered as one entityRULE 21.05: A LAWYER SHALL ADOPT MEASURES AGAINST THE DISCLOSURE OF CLIENTS SECRETS

Do everything to prevent possible leakage (this rule may be violated UNINTENTIONALLY through negligence)RULE 21.06: A LAWYER SHALL AVOID INDISCREET CONVERSATION ABOUT CLIENTS AFFAIRS EVEN WITH MEMBERS OF HIS FAMILY

Indiscreetness contemplates negligence or intent to cause damage

RULE 21.07: A LAWYER SHALL NOT REVEAL HIS HAVING BEEN CONSULTED

This applies to matters revealed by PROSPECTIVE CLIENTS (Hilado case)X. TERMINATION OF SERVICES

CANON 22: A LAWYER MAY WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE CIRCUMSTANCES

- The notice of discharge, to bind the court, must be made formally through a MOTION TO DISCHARGE before such and notice given to the adverse party

- Once the lawyer is discharged, he cant represent the client anymore

- ACR terminates upon the clients loss of legal capacity

- How to change counsels:

1. Client discharges A and hires B

2. Attorney withdraws appearance with clients consent or due to valid cause

3. Application for SUBSTITUTION OF COUNSEL:

a. written application for substitution

b. written consent of client

c. written consent of substituting lawyer

d. notice of the application upon the substituting lawyer

RULE 22.01: A LAWYER MAY WITHDRAW HIS SERVICES IN ANY OF THE FOLLOWING:

a) CLIENT PURSUES AN ILLEGAL OR IMMORAL COURSE OF CONDUCT

b) CLIENT INSIST THAT LAWYER VIOLATE THE CPR

c) INABILITY TO WORK WITH CO-COUNSEL WILL PREJUDICE CLIENT

d) MENTAL OR PHYSICAL DIFFICULTY WILL PREJUDICE CLIENT

e) CLIENT DELIBERATELY FAILS TO PAT THE FEES

f) LAWYER ASSUMES PUBLIC OFFICE

g) OTHER SIMILAR CASES

In withdrawal for good causes, clients consent is not needed, only NOTICERULE 22.02: A LAWYERS WITHDRAWAL OR DISCHARGE SHALL BE WITHOUT PREJUDICE TO HIS ATTORNEYS LIEN

A lawyer who is discharged or withdraws must immediately turn over all papers and property belonging to client and orderly transfer such to his successor subject to a LIEN as a security for his fees:1. Retaining Lien: Clients property w/in his possession by virtue of his professional capacity until he is paid (right to retain the clients property general lien for the balance of the account, a passive right to inconvenience client to satisfy fees due)

2. Charging lien: Money judgments or executions wherein he rendered services (claim must be entered on record special lien for services rendered and attaches to real or personal property awarded)XI. SUSPENSION AND DISBARMENT

A. AUTHORITY OF SC TO DISCIPLINE LAWYERS

- The SC has the right to determine WON a person should be allowed to practice law or be banned from such (CONST. Art 8, sec. 5.5)

- Disciplinary proceedings are aimed at protecting the public from unscrupulous lawyers and to ensure the integrity of the profession and the justice system

B. GROUNDS FOR DISCIPLINE

- Grounds for discipline apply to misconduct before or incident to admission

- Grounds for suspension and disbarment: Rule 138 sec. 27 are not exclusive since CPR and lawyers oath violations also merit administrative sanctions

XII. CODE OF JUDICIAL CONDUCT

- The CJC took effect in 1989 when by virtue of a resolution the SC adopted AO 162, promulgating the canons of judicial ethics

- The Preamble of the CJC: An honorable, competent and independent judiciary exists to administer justice and thus promote the unity of the country, the stability of the government and the well-being of the people

- The administration of justice is a joint responsibility of the lawyer and the judge

CANON 1: A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY

- A magistrate of the law must live up the standards of being the VISIBLE REPRESENTATION OF LAW AND JUSTICE

- Who is a JUDGE: public officer designated to preside and to administer law in a court of justice, a man of learning who should be imbued with a high sense of duty and responsibility

RULE 1.01: A JUDGE SHOULD BE THE EMBODIMENT OF COMPETENCE, INTEGRITY AND INDEPENDENCE

See Constitution Art. 8, Sec. 13

RULE 1.02: A JUDGE SHOULD ADMINISTER JUSTICE IMPARTIALLY AND WITHOUT DELAY

A judge should be objective, deciding in accordance with the law above all thingsRULE 1.03: A JUDGE SHOULD BE VIGILANT AGAINST ANY ATTEMPT TO SUBVERT THE INDEPENDENCE OF THE JUDICIARY AND RESIST ANY PRESSURE FROM WHATEVER SOURCE

The administration of justice should not be influenced by outside forces lest legal rights be prejudiced

CANON 2: A JUDGE SHOULD AVOID IMPROPRIETY OR THE APPEARANCE OF SUCH IN ALL ACTIVITIESRULE 2.01: A JUDGE SHOULD BEHAVE AT ALL TIMES TO PROMOTE PUBLIC CONFIDENCE IN THE INTEGRITY OR IMPARTIALITY OF THE JUDICIARY

The cold neutrality rule must apply, even when judge is engaging in social activities outside the courtRULE 2.02: A JUDGE SHOULD NOT SEEK PUBLICITY FOR PERSONAL VAINGLORY

RULE 2.03: A JUDGE SHOULD NOT ALLOW OTHER RELATIONSHIPS TO INFLUENCE JUDICIAL CONDUCT OR JUDGMENT; THE JUDICIAL OFFICE SHALL NOT BE USED TO ADVANCE PRIVATE INTERESTS

CANON 3: A JUDGE SHOULD PERFORM OFFICIAL DUTIES HONESTLY, WITH IMPARTIALITY AND DILIGENCE

(ADJUDICATIVE)

RULE 3.01: A JUDGE SHALL BE FAITHFUL TO THE LAW AND MAINTAIN PROFESSIONAL COMPETENCE

RULE 3.02: IN EVERY CASE, THE JUDGE SHALL ENDEAVOR DILIGENTLY TO ASCERTAIN THE FACTS AND APPLICABLE LAW UNSWAYED BY PARTISAN INTERESTS, PUBLIC OPINION OR FEAR OF CRITICISM

RULE 3.03: A JUDGE SHALL MAINTAIN ORDER AND PROPER DECORUM IN THE COURT

Fitting dignity and decorum in court to merit respect by exampleRULE 3.04: A JUDGE SHOULD BE PATIENT, ATTENTIVE AND COURTEOUS TO LAWYERS, WITNESSES AND LITIGANTS

Respect begets respect

RULE 3.05: A JUDGE SHALL DISPOSE OF THE COURTS BUSINESS PROMPTLY AND DECIDED CASES WITHIN REQUIRED PERIODS

Art 8 sec. 15 of the Constitution lays down the ff. periods:

1. SC 24 mths

2. Collegiate courts 12 mths

3. Lower courts 3 mthsRULE 3.06: A JUDGE SHOULD PROPERLY INTERVENE IN THE PRESENTATION OF EVIDENCE DURING TRIAL BUT SUCH SHOULD NOT AMOUNT TO UNDUE INTERFERENCE THAT MAY PREVENT THE ASCERTAINMENT OF TRUTH

Questioning witnesses on relevant facts is allowed if such concerns a material point as long as it has a neutral effect on both parties

RULE 3.07: A JUDGE SHOULD ABSTAIN FROM MAKING PUBLIC COMMENTS ON PENDING CASES ALONG WITH COURT PERSONNEL

(ADMINISTRATIVE)

RULE 3.08: A JUDGE SHOULD DILIGENTLY DISCHARGE ADMINISTRATIVE RESPONSIBILITIES, MAINTAIN PROFESSIONAL COMPETENCE IN COURT MANAGEMENT AND FACILITATE THE PERFORMANCE OF ADMINISTRATIVE FUNCTIONS

Never blame the staff for administrative glitches Take care of court records, equipment, etc.RULE 3.09: A JUDGE SHOULD ORGANIZE AND SUPERVISE COURT PERSONNEL TO ENSURE THE PROMPT AND EFFICIENT DISPATCH OF BUSINESS

Efficient manner of recording and filing cases, etc.

RULE 3.10: A JUDGE SHOULD TAKE OR INITIATE APPROPRIATE DISCIPLINARY MEASURES AGAINST LAWYERS OR COURT PERSONNEL FOR UNPROFESSIONAL CONDUCT

RULE 3.11: A JUDGE SHOULD EXERCISE APPOINTING POWERS STRICTLY ON THE BASIS OF MERIT AND QUALIFICATIONS

(DISQUALIFICATIONS)

RULE 3.12: A JUDGE SHOULD TAKE NO PART IN THE PROCEEDINGS WHEREIN HIS IMPARTIALITY MAY BE QUESTONED, INCLUDING:

a) PERSONAL KNOWLEDGE OF EVIDENTIARY FACTSb) INTERVENTION AS LITIGANT, COUNSEL OR WITNESSc) LOWER COURT RULING IS BEING REVIEWEDd) RELATIONSHIP BY CONSAGUINITY OR AFFINITY (LITIGANT 6 DEG; COUNSEL 4 DEG)

e) SPOUSE OR CHILD HAS FINANCIAL INTEREST/BENEFIT

IN EVERY INSTANCE, THE JUDGE SHALL STATE THE LEGAL REASON FOR INHIBITION

Compulsory inhibition (Rule 137, sec. 1) b,c,d,e

Voluntary inhibition (Rule 137, sec. 2) judge may exercise discretion after ascertaining WON his impartiality will be questioned

(REMITTAL OF DISQUALIFICATION)

RULE 3.13: A JUDGE, INSTEAD OF WITHDRAWING, MAY SIMPLE DISCLOSE THE INHIBITION ON RECORD AND MAY PARTICIPATE IF ALL PARTIES AND THEIR LAWYERS AGREE IN WRITING THAT THE INHIBITION IS IMMATERIAL

CANON 4: A JUDGE MAY, WITH DUE REGARD TO OFFICIAL DUTIES, ENGAGE IN ACTIVITIES TO IMPROVE THE LAW AND THE JUSTICE SYSTEM

RULE 4.01: A JUDGE MAY, IF NOT DOUBT IS CAST UPON HIS IMPARTIALITY,

a) TEACH, WRITE OR LECTURE ON LAW AND THE LEGAL SYSTEM

b) APPEAR AT PUBLIC LEGISLATIVE OR EXECUTIVE HEARING REGARDING MATTERS CONCERNING THE LAW AND THE JUSTICE SYSTEM

c) SERVE ON ANY ORGANIZATION DEVOTED TO LEGAL IMPROVEMENT AND DEVELOPMENT

CANON 5: A JUDGE SHOULD REGULATE EXTRAJUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH JUDICIAL DUTIES

(VOCATION AND CHARITY)

RULE 5.01: A JUDGE MAY ENGAGE IN THE FOLLOWING IF SUCH DO NOT INTERFERE WITH HIS DUTIES

a) TEACH OR WRITE ON NON-LEGAL SUBJECTS

b) ENGAGE IN CULTURAL OR RECREATIONAL ACTIVITIES

c) PARTICIPATE IN CIVIC AND CHARITABLE ACTIVITIES

d) SERVE IN A NON-LEGAL CAPACITY IN A NON-PROFIT, NON-POLITICAL ORGANIZATION

(FINANCIAL)

- See RA 3019 and RA 6713

RULE 5.02: A JUDGE SHALL REFRAIN FROM FINANCIAL DEALINGS THAT WOULD INTERFERE IN HIS EXERCISE OF JUDICIAL FUNCTIONS AND MANAGE HIS INVESTMENTS IN A WAY THAT MINIMIZES THE GROUNDS FOR DISQUALIFICATION

RULE 5.03: A JUDGE SHOULD MANAGE INVESTMENTS INDIRECTLY EXCEPT AS A DIRECTOR FOR A FAMILY BUSINESS

RULE 5.04: A JUDGE AND HIS IMMEDIATE FAMILY SHOULD NOT ACCEPT ANY CONSIDERATION FROM ANYONE EXCEPT IF ALLOWED BY LAW

RULE 5.05: A JUDGE SHOULD NOT USE INFORMATION OBTAINED IN JUDICIAL CAPACITY FOR NON-JUDICIAL ACTIVITIES

(FIDUCIARY)

RULE 5.06: A JUDGE CAN SERVE AS FAMILY FIDUCIARY BUT SHALL NOT:

a) SERVE IN PROCEEDINGS BEFORE HIS OWN COURT

b) ACT CONTRARY TO 5.02 5.05

RULE 5.07: A JUDGE SHALL NOT ENGAGE IN THE PRIVATE PRACTICE OF LAW. UNLESS PROHIBITED BY THE CONSTITUTION OR LAW, PRACTICE OF ANY OTHER PROFESSION WITHOUT CONFLICT WITH JUDICIAL FUNCTIONS IS ALLOWED

RULE 5.08: A JUDGE SHALL MAKE FULL FINANCIAL DISCLOSURE AS REQUIRED BY THE LAW

RULE 5.09: A JUDGE SHALL NOT ACCEPT APPOINTMENTS OR DESIGNATIONS TO QUASI-JUDICIAL/ ADMINISTRATIVE AGENCIES

RULE 5.10: A JUDGE IS ENTITLED TO AIR PERSONAL OPINION OF POLITICAL QUESTIONS BUT INVOLVEMENT IN PARTISAN POLITICAL ACTIVITY IS NOT ALLOWED

Constitution Art 9b, sec. 2(4)

XIII. DISMISSAL OF JUDGES

A. GENERAL RULE: JUDGES ARE NOT LIABLE FOR ACTS DONE IN THE EXERCISE OF JUDICIAL FUNCTIONS

- Public officials like judges enjoy the PRESUMPTION OF PROPER DISCHARGE OF OFFICIAL DUTIES unless there is satisfactory evidence that shows the judge was guilty of fraud, gross negligence, dishonesty, corruption or bad faith

B. JUDICIAL REMEDIES BEFORE FILING ADMINISTRATIVE CASE

- Exhaust the available judicial remedies to rectify an allegedly erroneous decision before filing an administrative case vs. the judge

C. PROCEDURE FOR DISCIPLINE AND DISCIPLINARY ACTION

- Steps to take (impeachment or judges are penal in nature):

1. File complaint with the SC in writing, laying down the facts and the charges vs. the judge (sworn and supported by affidavits)

2. Respondent judge will be sent a SHOW-CAUSE notice from the SC

3. SC will dismiss charges if such are not meritorious but when the facts of the record show liability, judge will be sanctioned (RES IPSA LOQUITUR facts are admitted or on its face show culpability without satisfactory explanation)

4. Quantum of evidence: BEYOND REASONABLE DOUBT

D. REINSTATEMENT

- Depends on the circumstances but the basic tenet is that HE HAD NO BAD FAITH OR ANY RECORD OF SUCH